[Hinds' Precedents, Volume 2]
[Chapter 30 - General Election Cases, 1875 To 1880]
[From the U.S. Government Publishing Office, www.gpo.gov]
GENERAL ELECTION CASES, 1758 To 1880.
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1. Cases in the Forty-Congress. Sections 902-923.\1\
2. Cases in the Forty-Fifth Congress. Sections 924-935.
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902. The Florida election case of Finley v. Walls, in the Forty-
fourth Congress.
Election officers fraudulently chosen and acting illegally were held
to be intruders and not de facto officers.
Fraud having been commited by election officers, no reliance was
placed on their returns, and they were rejected.
Where returns are rejected, the vote may not be proven aliunde by the
opinion of a person who kept a tally sheet.
On March 23, 1876,\2\ Mr. Charles P. Thompson, of Massachusetts, from
the Committee on Elections, submitted the report of the majority of the
committee in the case of Finley v. Walls, of Florida. As returned by
the State canvassers, the sitting member had a majority of 371 votes,
which the contestant sought to overcome by proving frauds and
irregularities. While a large number of allegations were made, the
decision was universally conceded in the debate to depend on the
disposition of the returns from the Colored Academy precinct, where
sitting member received 588 votes and contestant 11. This disparity was
not of itself a suspicious circumstance, since under the laws of
Florida the voter might cast his vote at any precinct in the county,
and the white and colored people quite generally sought different
polls.
The law of Florida provided:
The polls of the election shall be opened at 8 o'clock a.m. on the
day of the election.
And also--
The county commissioners shall * * * appoint a board of three
discreet electors to be inspectors of the election for each place
designated for voting within the county.
And--
In case of the death, absence, or refusal to act of any or all of the
inspectors appointed by the county commissioners, the electors present
at the time appointed for opening the election may choose,
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\1\ Also Lee v. Rainey, South Carolina (Vol. I, sec. 641).
\2\ First session Forty-Fourth Congress, House Report No. 295; Smith,
p. 367; Rowell's Digest, p. 305.
Sec. 902
viva voce, from the qualified electors, such a number as, together with
the inspector or inspectors present, if any, will constitute a board of
three, and the persons so chosen shall be authorized to act as
inspectors of that election. The inspectors shall, before opening the
election, choose a clerk, who shall be a qualified elector, and said
inspectors and clerk, previous to receiving any votes, shall each take
and subscribe an oath or affirmation in writing that they will perform
the duties of clerk or inspectors of election according to law, and
will endeavor to prevent all fraud, deceit, or abuse in conducting the
same. Such oath may be taken before any officer authorized to
administer oaths or before either of the persons chosen as inspectors,
and shall be returned with the poll list and the returns of the
election to the clerk of the circuit court. One of the inspectors shall
be chosen as chairman of the board.
The majority of the committee say in regard to the Colored Academy
precinct:
At this precinct your committee find that there was a conspiracy to
commit a fraud upon the election. That the conspirators were Dr. E. G.
Johnson, who was a candidate for State senator in Columbia County and
was voted for at this precinct, together with Charles R. King and John
W. Tompkins, who acted as inspectors, Charles A. Carroll, who acted as
clerk, and one Duval Selph, a supporter of Doctor Johnson. Carroll and
Selph were at Doctor Johnson's during the night previous to the
election, and King took breakfast with him in the morning. They all,
except Selph, left the house of Doctor Johnson in the morning, a little
after daylight, and proceeded to the place where the election was to be
held, and, in pursuance of the object of the conspiracy, opened the
polls at about 7 o'clock in the morning, an hour before the time at
which the meeting was notified and an hour before the duly appointed
inspectors were called upon to be present and an hour before the
election could be held according to law. No one of the duly appointed
inspectors, unless it was Aleck, Hamilton, was present or acted at this
precinct. Tompkins and King had been requested to be present by Doctor
Johnson and act as inspectors, and Charles A. Carroll had been
requested by him to act as clerk, and these several persons were either
nominated by, or acted at the request of, Doctor Johnson. They were not
legally elected, as there was no regular meeting of the electors having
power to choose inspectors before Tompkins and King undertook to act as
such, and without legally appointed or chosen inspectors no legal clerk
could be chosen or appointed, so that the election at this precinct was
conducted by persons not legally authorized, with the exception of
Hamilton, and by persons who were ready and willing to violate the
election laws of the State, and who did violate them.
The committee then go on to quote testimony that there was fraud at
the precinct, persons voting who had voted at other precincts and
others voting who had not conformed to the legal requirements. And the
committee insisted that there was fraudulent collusion on the part of
the election officers. They say:
Your committee are satisfied that the irregularities at this precinct
were not the result of ignorance, inadvertence, or carelessness, but
were the result of fraud, and that there were no legally appointed
inspectors nor a legally appointed clerk at this precinct; that Johnson
took the entire charge of the polls through persons who, by his
procurement, acted as inspectors and clerk. They can not stand better
than mere intruders, having no official character; intruders not for
the purpose of aiding in conducting an election fairly, but for the
purpose of carrying into execution a previously arranged fraud upon the
ballot box. It is clear that the pretended clerk, Charles A. Carroll,
arranged with Doctor Johnson to commit a gross fraud at this election,
and although he did not do the particular acts it was arranged he
should do, still the evidence is clear that Doctor Johnson himself
carried out the fraud planned with the clerk, of putting illegal votes
into the ballot box with the knowledge of the clerk.
In conclusion the majority say:
The law is, that where fraud is proved to have been committed by the
officers of an election in conducting the election, no reliance can be
placed upon any of their acts and their return must be rejected as
wholly unreliable. The party claiming under the election must prove the
actual vote in some other way. The only evidence as to what the vote
was is from John V. Brown (p. 79), one of the challengers, a
Conservative, who says: ``Finley got 11 and Walls 588, 1 think. I
derived my information from being present and keeping a tally sheet.''
This certainly can not establish the vote, as his testimony at most can
only be evidence of the actual number of votes cast, but one of the
principal objections
Sec. 903
is that illegal votes were cast, and this, too, with the guilty
knowledge of the officers of the election. There being proof that such
illegal votes were cast and the real number of legal votes not being
proved, there is nothing upon which the true vote can be ascertained,
and, therefore, the entire poll must be rejected; and your committee so
find and determine.
The minority dissent from the majority's views as to the facts, deny
that fraud is proven, and hold:
As these men acted as inspectors and clerk, and as no proof is given
to show that they were not, in fact, appointed, and as it is now
claimed that their return went into the Columbia County return, counted
by the State board, and found at page 23, and as it is now sought to
deduct this vote from the State count, these inspectors and clerk must
be taken to be officers de facto, and full faith, prima facie, is due
to their acts.
The committee considered at length other objections of the
contestant, and came to conclusions thereon:
903. The case of Finley v. Walls, continued.
Persons actually registered but omitted from the copy of the list in
use at the polls were held to have cast valid votes, although a
required oath was not administered when they voted.
Where the nature of illegal votes had not been determined the
Committee on Elections deducted a proportionate number from the poll of
each candidate.
(1) At the Gainesville precinct about 60 persons voted whose names
were not on the certified copy of the registration list. The majority
say:
It is clear by the election laws of Florida that a person, in order
to be entitled to vote at any election, must, six days prior thereto,
be duly registered as a voter in the clerk's office of the circuit
court in the county. If, on offering to vote, his name is not on the
certified copy of the registry list at the voting precinct, he may
then, if he takes the oath prescribed in section 16 and the additional
oath required by section 9, which is ``that his name has been
improperly struck off from the list of registered voters,'' be entitled
to vote. And the taking of the oath in section 9 is indispensable to
the right of the person to vote whose name is not upon the registration
list. The officers presiding at the election have no right to receive
his vote without this oath. But it also appears by the evidence that,
although the names of these 60 voters were not on the certified copy of
the registration list furnished for this poll, still a large number of
the names were actually on the registration list in the clerk's office
of the circuit court. Your committee, in view of this fact, although
the inspectors were in fault in allowing the persons to vote whose
names were not on the list furnished them by the clerk of the circuit
court, still, as their names should have appeared on such list, and
they were deprived of the legal right to vote without taking the oath
in section 9, by the neglect of the clerk of said court in not
providing a correct list of the voters of said precinct, have arrived
at the conclusion that, they having voted, their votes should be
counted when their names are found to have been on such registry list
at the clerk's office. This leaves the poll to be purged of 12 votes.
``In purging the polls of illegal votes, the general rule is that,
unless it is shown for which candidate they were cast, they are to be
deducted from the whole vote of the election division, and not from the
candidates having the highest number.'' ``Of course, in the application
of this rule such illegal votes would be deducted proportionately from
both candidates, according to the entire vote returned for each.'' (Am.
Law of Elec., sec. 298.) Although this is the rule to be applied where
it can not be ascertained for whom the illegal votes were cast, and in
this case there is nothing to show that it might not have been
ascertained for whom the illegal votes were cast, as the names of the
unregistered voters could have been ascertained by comparing the poll
list and the registry list, and the evidence of the illegal votes taken
as to whom they voted for, and the poll purged in this the more regular
mode; still, as this has not been done, your committee, unwilling to
reject the entire poll, there being not evidence sufficient to prove
actual fraud on the part of those having charge of the election, have
determined to purge the poll of the 12 illegal votes by subtracting
from each of the candidates a proportionate number of the illegal
votes, according to the entire vote returned for each.
904
904. The case of Finley v. Walls, continued.
An entire poll is not to be rejected except after the fullest attempt
to purge it of illegal votes.
Where election officers did not follow State law and draw out an
excess of ballots, the Elections Committee deducted proportionately.
Failure to swear the election officers, combined with other
irregularities, was, by a divided committee, held not to require
rejection of the poll, actual fraud not being shown.
Failure to return the poll book to the county officer, as the law
required, was not held in the absence of proof of fraud to vitiate the
election.
(2) As to sheriff's office precinct the report says:
There was at this precinct a grave omission on the part of the
officers of election in their failure to purge the poll, as directed by
the law of Florida. It appears from the testimony of Albert A.
Ellenwood, one of the inspectors (pp. 96, 97), that there were only 298
names on the poll list while there were 309 votes cast and counted.
There appearing to be 11 more votes than names on the poll list, it
was the duty of the inspectors to replace the ballots in the box and
have one of their number publicly draw out and destroy, unopened, so
many of such ballots as were equal to such excess. (Sec. 22, above.)
This not having been done, it becomes a difficult problem to
determine what shall be done with the poll. The statute having
prescribed the method of and the person by whom the poll should have
been purged, can it be purged in any other manner? Your committee, upon
a careful consideration of the question, regarding it as settled that
an entire poll is not to be rejected except after the fullest attempt
to purge the poll of illegal votes, and, to ascertain the real vote by
all reasonable means, have decided to regard this statute of Florida as
providing a principle upon which, as well as a mode by which, the poll
in such a case should be purged; and, as the method was omitted without
fraud, have not regarded its omission an act of such a character as to
compel the rejecting of the entire poll, but have decided to apply the
principle established by the law, viz: that the excess of votes shall
be regarded as thrown proportionately for both candidates, according to
the entire vote for each, and that the drawing out in the manner
provided by law would draw a proportionate number for each candidate.
Your committee have taken from each candidate a proportionate part of
said 11 votes.
Certain members of the committee who concurred in the majority report
generally advocated more severe treatment of this poll, Mr. J. S. C.
Blackburn, of Kentucky, insisting that it should be thrown out
altogether.
(3) At Archer precinct, besides the voting of certain persons whose
names were not on the lists and the presence of a few more ballots in
the box than there were names on the poll list, the committee found
other irregularities:
At this poll other and serious informalities are found to exist, such
as a failure to swear the inspectors, the concealment of the ballot box
from public view during the adjournment for dinner, being about a half
hour (Geiger, p. 56), not opening of the poll until about half past 9
o'clock, and the keeping it open after sunset. There was also an
improper interference with the election by W. U. Saunders, United
States marshal, both in meddling with the ballots and controlling the
order of voting, so that several conservatives could not vote at all.
These irregularities are grave ones and might, with much reason, be
adjudged sufficient to vitiate the poll; still, your committee are
unwilling to reject an entire vote where there is not proof of actual
fraud and the poll may probably be purged of its illegal votes. They
have, therefore, allowed the returns to stand as certified by the
inspectors, deducting only the 35 illegal votes proportionately from
each candidate, which will leave the vote 260 for Walls and 23 for
Finley, instead of 293 for Walls and 25 for Finley.
Mr. Blackburn and three other members of the majority of the
committee considered the decision too lenient.
Sec. 905
(4) As to irregularities in Alachua County, the report says:
That said election at precinct No. 3, at Gainesville, within the
county of Alachua, and within said Second Congressional district of
Florida, was irregularly and illegally conducted, and was null and
void, and I hereby notify you that I will ask that all the votes cast
at said precinct be rejected on the following grounds, viz: First.
Because no poll book or list of the names of the electors voting at
said precinct was returned to the judge of the county court or to the
clerk of said county, with the certificates of the election at said
poll, as the law requires, but a paper list of names was found eight
days after said election, unsigned by any of the officers of the
election at said precinct; second, because a large number of illegal
votes at said election were received and counted at said poll, viz,
about 58 votes not registered, and 5 not checked, as the law requires,
were received at said poll, and changed the result of the election at
said poll, and only 3 appeared to be sworn, and because the oath
administered to the unregistered voters who voted at said poll was not
such as the law prescribes.
To which the contestee answers in substance that it is untrue that
said election was irregularly and illegally conducted, or was null and
void. He admits that the poll book was not returned to the judge of the
county court nor to the clerk of the county with the certificate of the
election at said precinct, but alleges that the same was found eight
days after said election, and that this irregularity is not such as
will affect the rights of the contestee. He also objects to proof of
any illegal votes, as it does not appear from the contestant's said
specifications for whom said illegal votes were cast. A poll may be
purged of illegal votes without it being proved for whom they were
cast. (Am. Law of Elec., sec. 298.)
The not returning of the poll list, although an irregularity which
might, connected with other irregularities, be entitled to very
considerable weight, still, in this case, it being shown that the poll
list used at this precinct was found and used by the county canvassers
in canvassing this precinct, and there being no evidence that it had
been tampered with, or was by reason of fraud not returned in the
ballot box, the committee have not regarded it as a sufficient reason
for rejecting said poll.
The majority of the committee concluded, from an application of the
principles set forth, that the true result showed a majority of 343
votes for Mr. Finley, the contestant, and reported resolution giving
the seat to him.
The report was debated at length on April 18 and 19,\1\ the debate
being confined almost exclusively to the Colored Academy precinct. On
the latter day the resolutions of the minority, confirming the title of
sitting Member to the seat, were offered as a substitute, and were
disagreed to, yeas 84, nays 135.
Then the resolutions of the majority were agreed to without division.
The contestant, Mr. Finley, then appeared and took the oath.
905. The Alabama election case of Bromberg v. Haralson, in the
Forty-fourth Congress.
Illustration of a specification in a notice of contest condemned as
too general.
Testimony taken after the time allowed by law was rejected.
Original testimony, taken on notices stating that witnesses were to
be examined in rebuttal, was rejected.
On March 23, 1876,\2\ Mr. John T. Harris, of Virginia, from the
Committee on Elections, submitted the report of the committee in the
case of Bromberg v. Haralson, of Alabama. The contestant alleged fraud
and intimidation sufficient to overcome the majority of nearly 2,700,
by which sitting Member had been returned.
Two preliminary questions were discussed and passed on in relation to
the vote of the district, especially of Wilcox County.
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\1\ Journal, pp. 817, 825, 826; Record, pp. 2553, 2593-2603.
\2\ First session Forty-fourth Congress, House Report No. 294; Smith,
p. 364; Rowell's Digest, p. 303.
Sec. 905
(a) The report quotes one of the specifications:
Twelfth. That illegal and undue influences were employed by United
States and State officials, or by persons representing themselves to be
such, adherents of the Republican party, to prevent voters in this
district from voting for me (the contestant), or inducing or
intimidating voters into voting for you (the contestee), by threats of
prosecution and otherwise, by the presence of detachments of United
States troops at or near the polls, and by the illegal distribution of
provisions donated by act of Congress to sufferers by the overflow of
the Tombigbee and Alabama rivers in 1874.
And says:
The twelfth specification is too vague and uncertain to be good. The
statute requires that the contestant, in his notice, ``shall specify
particularly the grounds upon which he relies in his contest.'' (Rev.
Stat., pp. 17, 18, sec. 105; McCrary, sec. 343; Wright v. Fuller, 1
Bartlett, 152.)
It is impossible to conceive of a specification of the grounds of
contest broader or more general in its terms. It fixes no place where
any act complained of occurred. It embraces the whole district in one
sweeping charge. This specification embraces three general grounds of
complaint, not one of which possesses that particularity essential to
good pleading; but it can subserve no valuable purpose to pursue the
question of legal sufficiency of this specification further, because
there is another ground upon which the whole evidence of the
contestant, relating to the election in this county, must be rejected.
(b) As to the notice of contest and validity of certain testimony,
the committee say:
The sitting Member served his answer to the notice of contest on the
contestant on the 23d of December, 1874. The statute gives ninety days
next after the service of the answer in which to take the testimony.
(See act of February, 1875.) This period is to be divided as follows:
The contestant shall take testimony during the first forty days, the
returned Member during the succeeding forty days, and the contestant
may take testimony in rebuttal only during the remaining ten days of
said period. (Rev. Stat., p. 18, sec. 107.) During the first forty days
the contestant took no testimony in Wilcox County or elsewhere to
sustain any specification in his notice of contest affecting the
election in said Wilcox County. His entire evidence was confined to the
election held in other counties. During the succeeding forty days the
returned Member did not take any testimony in Wilcox County or
elsewhere relating to the election held in said county of Wilcox; and
yet, on the 15th and 16th days of March, 1875, the contestant caused
notices to be served on the attorney of the returned Member that on the
22d of March, 1875, he would take testimony in said county of Wilcox.
Both notices specify that the witnesses therein named ``will be
examined in rebuttal of the testimony taken'' by the returned Member.
Knowing that he had taken no testimony in relation to the election in
Wilcox County at all, and hence that there was nothing to rebut, the
returned Member did not attend the taking of the testimony of
contestant in said county. In violation of the statute, and contrary to
the terms of the notices served upon the attorney of the sitting
Member, the contestant took a large number of ex parte depositions or
affidavits for the purpose of proving the truth of the general charges
embraced in the twelfth specification above quoted. The whole of the
testimony taken in Wilcox County is directed exclusively to the proof
of the contestant's original case, and no portion of it is directed to
the rebuttal of the proofs adduced by the returned Member. The rules of
law and the principles of common fairness alike require that the whole
of contestant's testimony relating to the election in Wilcox County
should be entirely rejected, first, because the time within which the
contestant could lawfully take testimony to prove his original case had
long previously expired; and, second, because the notices explicitly
state that the witnesses were to be examined in rebuttal, and under
such notices, in the absence of the returned Member, it would be to
give sanction to a surprise to allow any other than rebutting testimony
to stand. And, in addition thereto, the contestee would have no right
or opportunity to introduce evidence in answer to the original evidence
thus taken during the ten days prescribed by law for taking of
rebutting testimony.
Sec. 906
906. The case of Bromberg v. Haralson, continued.
Clear and satisfactory proof of fraud or mistake is required to
remove the legal presumption in favor of the correctness of the acts of
sworn election officers.
Isolated cases of violence or intimidation do not justify a rejection
of the poll.
The mere presence of United States soldiers in the neighborhood of
the polls, unaccompanied by disorderly or threatening conduct, does not
vitiate the poll.
As to the merits of the contest, several considerations were
involved:
(1) Extensive frauds were alleged in the city of Mobile through the
agency of a club organized for the purpose of encouraging fraudulent
voting.
The committee discuss at length the quality of the evidence required
for proof of such a charge:
The burden of proof is always upon the contestant or the party
attacking the official returns. The presumption is that the officers
charged by law with the duty of ascertaining and declaring the result
have discharged that duty faithfully. (Am. El. L., secs. 306, 394,
subdiv. 10.)
The action of a board of supervisors of election, when in due form,
is prima facie correct, and it must stand until it is shown by
extrinsic evidence to be illegal and unjust. The presumption is always
the commission of a fraudulent or illegal act, and in favor of the
honesty and correctness of the official acts of a sworn officer. The
rule on this subject is thus stated in the New Jersey cases, 1
Bartlett, 25:
``It is not sufficient that there should exist a doubt as to whether
the vote is lawful or not; but conviction of its illegality should be
reached to the exclusion of all reasonable doubt before the committee
are authorized to deduct it from the party for whom it was received at
the polls.''
The true rule is believed to be one which, while it may not require
the exclusion of all reasonable doubt, does require clear and
satisfactory proof of fraud or mistake before the legal presumption in
favor of the correctness of the acts of sworn officers shall be
nullified. The testimony of a conspirator swearing to his own infamy
and implicating others in the same crime is always jealously
scrutinized, and unless corroborated in material points by evidence
coming from uncontaminated sources, can not generally be received as
sufficient to establish a litigated fact. And if in addition to this,
such conspirator declines to submit to a full, thorough, and searching
cross-examination upon the whole subject-matter testified to by him in
his examination in chief, this circumstance casts additional suspicion
upon his testimony. And if to this be also added the fact that such
conspirator is at the time he so testifies the paid agent of the party
producing him in ascertaining and arranging the evidence for his
employer, this circumstance is one calculated to cast additional doubt
and suspicion upon his testimony. There was a period in the history of
both English and American jurisprudence when the paid attorney or
counsel of a litigant party would not be heard to testify in behalf of
his client.
Bearing in mind these salutary rules, there can be found no reliable
evidence to sustain the charges of fraud and overcome the legal
presumption in favor of the returns. It would seem upon its bare
statement incredible that, in the city of Mobile, at an election where
the contestant polled 6,497 votes, mostly cast by the intelligent and
lately master race, a number nearly 2,000 in excess of the entire vote
polled for the sitting Member, such a conspiracy to repeat, if it
existed, could have been consummated. It demands large credulity to
believe that in the presence of 6,500 white voters, intelligent, alert,
jealously watching their rights, 250 colored men, with the aid of a few
white leaders, could have polled about 2,000 votes, or in the
neighborhood of 1,700 fraudulent votes. There are nine witnesses who
were examined to prove that such a fraud was consummated.
The witnesses, however, did not testify to any specific acts of
illegal voting, and the report concludes:
This evidence given by these conspirators is so vague, indefinite,
and contradictory that if it came from purer and less suspicious
sources it would furnish no safe or reliable basis upon which to act.
Sec. 907
To undertake to purge the poll upon such evidence would be impossible.
No man can safely say how many illegal votes, if any, were cast. There
is no basis furnished by the evidence from which it can be determined
whether there was 1 or 1,000 illegal votes cast. Admitting that there
is evidence that there were some illegal votes cast, still, no reliable
data are furnished to show how many there were. The result in such case
would be that the whole poll would have to be thrown out. The rule is
thus stated in Howard v. Cooper, 1 Bartlett, 275: ``When the result in
any precinct has been shown to be so tainted with fraud that the truth
can not be deducible therefrom, then it should never be permitted to
form a part of the canvass. The precedents as well as the evident
requirements of truth not only sanction but call for the rejection of
the entire poll when stamped with the characteristics here shown.'' The
application of this rule would end the contestant's case if every other
charge of fraud were admitted, and it is therefore safe to say that he
will concede that the proper rule is not to reject this poll.
(2) As to intimidation:
The report says:
As to the violence, intimidation, and deception alleged to have been
practiced by the Republican voters in Mobile County, the evidence is so
meager and unsatisfactory that it can serve no useful purpose to enter
into an analysis of it. While there doubtless were isolated cases of
violence and intimidation, the election seems in the main to have been
orderly, full, and fair. All the witnesses, with perhaps one single
exception, testify that they were amply protected in voting as they
pleased. This evidence presents a case which the precedents concur in
showing can not affect the poll. (McCrary, secs. 416, 424, 586;
Harrison v. Davis, 1 Bartlett, 341; Brown v. Loan, ib., 482.) Nor is
there anything in the argument that the colored vote polled was so
large as to suggest the existence of illegal voting. The census of 1870
shows the population of Mobile County to have been 49,311, divided by
races as follows: Whites, 28,195; colored, 21,107. The evidence tends
to show that there has been little increase in the population since
that time, and that the races maintain about the same relative
proportions. The contestant, in 1874, received 6,497 votes, and the
sitting Member 4,753. It may be safely inferred that each race voted
about equally solid for the candidate of its own color and blood. On
this basis the contestant received 1 vote for every 4.34 inhabitants,
while the sitting Member received only 1 vote for every 4.44
inhabitants, thus showing a larger vote polled in proportion to the
population by the white than by the colored people. Hence it seems
clear that the poll of Mobile County ought not to be disturbed.
(3) In Monroeville, in Monroe County, both bribery and intimidation
by soldiers were alleged. Of the latter charge the report says:
There was a small squad of United States soldiers stationed at
Monroeville, and on the day of the election they were in the
neighborhood of the polls. But the evidence fails to show any
disorderly or threatening conduct on their part, and it is apparent
that no man of ordinary firmness was or could have been thereby
intimidated from voting. The allegation that the presence of this small
squad of soldiers intimidated a large number of Democratic voters and
kept them from voting the Democratic ticket is not sustained. Indeed,
in the year 1872 the contestant received, at the Monroeville precinct,
214 Democratic votes only, while in 1874, at the same precinct, he
received 218 votes.
907. The case of Bromberg v. Haralson, continued.
The Elections Committee leaned to the view that a promise of general
distribution of food to voters was a corrupting influence justifying
purging of the poll.
Discussion as to validity of English rule that to justify rejection
of votes bribery must be practiced by the candidate or agent.
It is not safe to assume voting by nonresidents on mere testimony as
to migrations of large numbers of persons.
(4) The above precinct of Monroeville was attacked on other grounds,
however. The report says:
It is established by the evidence before the committee that a report
was industriously circulated among the colored voters that in order for
them to obtain bacon they would have to vote the straight
Sec. 907
Republican ticket; that if they received bacon, and afterwards
neglected or refused to vote the Republican ticket, they would forfeit
their legal rights; that they should come to Monroeville on election
day, and that Perrin would give them a big barbecue and meat enough to
last them a year. It seems that no effort was made by the Republican
leaders to correct these reports and disabuse the minds of the colored
voters of their truth. It is testified by Perrin and many others that,
in their opinion, the belief in the truth of these reports induced the
colored voters to cast for the sitting Member at least 800 votes more
than he would otherwise have received. The evidence fails to connect
the sitting Member with these reprehensible practices. But it is
apparent that these corrupt practices did have an influence to swell
the vote of the sitting Member at this precinct. There are but a few
voters who are shown to have been directly influenced to vote otherwise
than they would have done by these means. It is apparent that more were
corrupted than can be distinctly proved to have been influenced. It is
probable that the truth has between the extremes. On the one hand it is
claimed that at least 800 votes were obtained for the sitting Member by
corruption and bribery; on the other hand it is claimed that this
estimate is proved by the mere opinions of witnesses, and that the
evidence does not point distinctly to more than 10 or 12 voters who are
shown to have been thus corrupted. It perhaps would be fair to assume
that the whole vote cast at this precinct in excess of the vote of two
years before, when no such influence existed, was cast by voters who
came there under the influence of the corrupt practices and promises
disclosed in the evidence. At the Congressional election held in that
precinct in 1872, the total vote polled was 516, and at the
Congressional election in 1874 the total vote polled was 848. The
excess in 1874 over the vote of 1872 is thus shown to be 332. The
practice indulged in by Perrin and others to corrupt the colored voters
in this county is of a most shameless and reprehensible character. It
strikes at the foundations of republican government, and poisons the
very sources whence all legitimate authority flows. No system of
government can long endure where public opinion tolerates such conduct.
Its general prevalence must lead to anarchy and bloodshed, and loosen
the very ligaments binding society together. It strikes a fatal blow at
the social compact. It overturns all just distinctions between honesty
and corruption in the delegation of authority to the representatives of
the people. No language can too strongly express our disapproval of the
practices indulged in to corrupt the purity of the ballot box, at
Monroeville, in particular. Votes thus obtained, even if cast by legal
voters, it would seem ought to be rejected as illegal and void, even
though it is not shown that the candidate who received them knew or
consented to the corrupt practices whereby they were obtained. Such is
the rule of law laid down in the unanimous judgment of a highly
respectable court of last resort in one of the States of the Union. In
that cue it is said:
``In our form of government, where the administration of public
affairs is regulated by the will of the people, or a majority of them,
expressed through the ballot box, the free exercise of the elective
franchise by the qualified voters is a matter of the highest
importance. The safety and perpetuity of our institutions depend upon
this. It is therefore particularly important that every voter should be
free from any pecuniary influence. For this reason the attempt by
bribery to influence an elector in giving his vote or ballot is made an
indictable offense. * * * Can a vote thus obtained, in direct violation
of the statute, be considered a valid or legal vote? If it can, then
the very object of the statute, which is that it should not be so
obtained, is defeated. We are of opinion that such votes are illegal,
and that the judge was right in directing the jury to disregard them.
This conclusion is sustained by the authorities, so far as we have been
able to find any.'' (State ex rel. Hopkins v. Olin, 23 Wis., 326.)
The Lex Parliamentaria of England seems to require that the bribery
which will justify the rejection of a vote shall be practiced by the
candidate to be affected, or by his agent. It is not necessary to the
decision of this case to determine which rule should be applied in
election cases depending before this House, and hence the committee
express no judgment upon it. If it should be held that 332 votes cast
at this precinct should be thrown out, or that every vote cast for the
sitting Member should be rejected, it would not affect the result at
which the committee have arrived.
Further on the report says:
No sufficient evidence has been produced to warrant the rejection of
any votes cast in Monroe County except at the Monroeville precinct.
Sec. 908
(5) Changes were made that in Dallas County 1,000 votes were cast by
persons not residents of the county. The report says:
There was a large body of testimony produced before the committee
which tended in some degree to raise an inference that a large number
of votes had been cast by nonresidents of the county. This testimony is
susceptible of being grouped into two general classes:
1. The testimony of a large number of witnesses showing quite a large
emigration of colored people from this county since the year 1869.
In the opinion of the witnesses the number was from 2,000 to 3,000,
of whom it is estimated that from one-half to three-fourths were
colored voters.
2. The second class of testimony is that of railroad officers,
steamboat men, and other persons engaged directly or indirectly in
procuring and sending away colored laborers into Western States,
particularly Mississippi and Louisiana.
It is quite apparent that it would be unsafe to hold that illegal
votes had been cast on deductions drawn from testimony so infirm. The
number of persons removing into the county would have to be
ascertained; also how many of those who went abroad to seek labor went
away temporarily and afterwards returned would have to be determined;
and, in addition to this, it would be necessary to determine how many
who were minors in 1869 had attained their majority in 1874. With so
many elements of uncertainty the committee do not realize the force
which the contestant attached to this class of proofs.
Therefore the committee held that the charge was not made out.
In conclusion the-committee found:
In conclusion, and without entering into any recapitulation of the
votes rejected by the committee in the several precincts in this
district, the committee content themselves with the statement that when
all such illegal votes have been rejected, it still lacks much of
overcoming the majority of nearly 2,700, which the sitting Member
received; and it is believed no beneficial purpose would be subserved
by any more minute analysis of the votes which we agree should be
rejected.
And your committee have unanimously agreed to report to the House the
following resolutions:
Resolved, That Frederick G. Bromberg was not elected a Member of the
Forty-fourth Congress of the United States and is not entitled to a
seat in this House.
Resolved, That Jere Haralson was elected a Member of the Forty-fourth
Congress of the United States and is entitled to a seat in this House.
On April 18 \1\ the House agreed to the resolutions without debate or
division.
908. The Illinois election case of Le Moyne v. Farwell, in the
Forty-fourth Congress.
Where rejection of the poll (although undoubtedly merited) would
accrue to advantage of the offending party, the House purged by
deducting the illegal votes from the latter's poll.
On April 10, 1876,\2\ John T. Harris, of Virginia, from the Committee
on Elections, submitted the report of the majority of the committee in
the Illinois case of Le Moyne v. Farwell. The official returns gave
sitting Member a majority of 186. The contestant alleged fraud and
irregularities. Three questions arose, the first two being of essential
importance.
(1) In the first precinct of the Twentieth Ward of Chicago the
returns gave sitting Member a majority of 171 votes. It was admitted by
the whole committee that these returns were entirely unreliable. The
minority say:
In reference to this precinct the committee are all agreed that the
election was thoroughly corrupt; that an organized effort was made to
commit fraud, commencing with a false registration list and ending in
the polling of hundreds of illegal votes. Unless these votes can be
eliminated and the poll purged,
-----------------------------------------------------------------------
\1\ Journal, p. 817; Record, p. 2552.
\2\ First session Forty-fourth Congress, House Report No. 385; Smith,
p. 406; Rowell's Digest, p. 308.
Sec. 908
we must reject the entire returns, as the number of fraudulent votes
cast was clearly sufficient to change the majority. We clearly
recognize the duty to follow the rule, that the exclusion of an entire
poll is the very last resort, and that it must never be done where
there is any rational means by, which the illegal votes can be
eliminated and we be enabled to arrive at the truth. In this case no
such means exists. The evidence clearly shows not only fraud, but that
the judges of the election were parties to it, that they were corrupt
and dishonest, and so conducted the election that frauds might be and
were committed. They would not respect challenges nor allow challengers
in the room; they numbered the ballots so that no one can tell who cast
them, although under the Illinois law it was their duty to place on the
ballot cast by each voter a number corresponding to that opposite his
name on the poll list; and when the ballots were produced from the
clerk's office, it was found not only that the ballots were not so
numbered, but that on a count there was a discrepancy of 48 against
Farwell between the returns of the officers and a count of the ballots.
These facts destroy the prima facie character of the returns, the
judges are impeached, and their returns become as blank paper.
The only question which arose, then, was as to the disposition of the
poll, whether it should be wholly rejected or purged. While the
majority of the committee--seven in all-sustained the whole report,
which recommended purging, yet two of this seven indorsed their dissent
and favored the entire rejection of the vote. The four minority members
also favored the rejection of the vote, so on this branch of the case
the report submitted by the majority of the committee actually
represented the opinion of a minority.
The report makes this argument:
Presumption is raised against contestee from the fact of his
receiving a large majority in the precinct. It is also proven that one
person who was furnishing names to illegal voters was providing them
with tickets bearing contestee's name, and that the four men who made
out the fraudulent registry, who, with one addition, constituted the
judges and clerks of election, all voted for contestee. All the
testimony proving illegal voting in this precinct is adduced by
contestant. The contestee has called no witness nor made any attempt to
show an illegal vote in the precinct, nor does he claim that there was
any fraud practiced therein by contestant, but in his answer says that
there was no illegal votes given for him in said precinct, and only
asks to have the whole vote of the precinct thrown out, after the
number of illegal votes proven by contestant to have been given to
contestee exceeds his (contestee's) majority in the precinct.
Contestee's majority in the precinct is 171. The number of illegal
votes proven to have been given him in the precinct is 252, so that a
rejection of the whole poll would give to contestee the advantage of
the difference between these numbers, or 81 votes. ``No man shall be
allowed to take advantage of his own wrong,'' is one of the plainest
and best settled of legal principles. The law says, ``A wrongful or
fraudulent act shall not be allowed to conduce to the advantage of the
party who committed it.'' The old rule is, ``At law fraud destroys
rights. If I mix my corn with another's, he takes all.'' If contestee
can have the whole vote of this precinct rejected because of the fraud
perpetrated by his own supporters and in his own interest, as proven in
the record and not denied, then he is rewarded to the extent of 81
votes for the perpetration of said frauds. The proposition appears to
be inequitable and illegal, bordering too closely upon absurdity to
admit of argument.
By the law of elections it is held (American Law of Elections, sec.
304):
``Nothing short of the impossibility of ascertaining for whom the
majority of the votes were given ought to vacate an election.''
Again, section 305, page 231:
``It is the first duty of the tribunal trying the contest to purge
the poll of the illegal votes, if this can be done.''
This rule is particularly applicable in a case where it is proven
that illegal votes were received and counted, rather than in cases
where from the proof of irregularities upon the part of the judges it
was to be presumed that the count and returns were illegal. The method
used in this election was such that had fairness and honesty been
observed, the poll of this precinct could have been purged with
certainty and without difficulty. Every voter's name was entered upon
the poll book as he voted. Opposite his name was written the street and
number of his residence, as given by himself; also a poll-book number,
and the testimony of the judges shows that the same number as that
opposite his name on the
Sec. 908
poll book was written on the ballot of every voter before it was put
into the box, so that when proof is made that any name on the poll book
is fictitious, or not the name of a legal voter, it is only necessary
to select the ballot bearing the corresponding number, and thus
identify the candidate from whose vote the deduction should be made. In
this case the proof shows that after the election was closed, the
ballot box was taken off by one of the judges to the house of a
candidate on the same ticket with the contestee, and there left for two
days before the official returns were made, and that the friends of
contestee having charge thereof withheld their returns until the other
precincts were heard from; that when said official returns were made
the ballots were sealed and returned to the county clerk, and were not
again opened until in taking the testimony in this case they were
produced and opened in the presence of the parties to this contest or
their attorneys and the officers taking the testimony. Then great
irregularity appeared in the numbering of the ballots. There were found
183 names on the poll book for which no ballots were found, 198 ballots
of duplicate and triplicate numbers. There were only 673 names on the
poll book, but there are ballots numbered 674, 675, 675, 676, and 677.
It is clear that the ballot box had been tampered with, but it must be
remembered that the box was in the custody of the friends and
supporters of contestee, which raises the presumption that whatever
alterations or changes were made were in his interest and to his
advantage. It must be to the disadvantage of contestant to be forced to
purge this poll of fraudulent or illegal votes, after the ballots had
been thus manipulated by the friends and in the interest of contestee.
In such a condition of things, would it be inequitable or unfair to
hold that whenever an illegal vote was proven it should be charged to
contestee, whether a ballot bearing a corresponding number was found
for him or not? In the case of Duffey (4th Brewster, p. 531), the court
held, ``Upon notice, etc., that fraudulent votes had been received, the
burden of proof falls upon the candidate advantaged by the count, to
show that the person so voting was a legal voter or voted for his
opponent; otherwise it will be presumed that they were polled and
counted for him, and the poll will be purged by striking the whole
number of such votes from his count.'' This ruling was no doubt based
upon the presumption that the party receiving the majority is
responsible for the fraud, and upon which presumption the court felt
warranted in throwing the burden of proof on him, and thus purging the
poll. But the application of this rule, which might be claimed to be
stringent, is not asked or contended for in this case. Here it is only
proposed to deduct from the returned vote of the contestee the number
of illegal votes, with ballots bearing numbers corresponding to the
names of the illegal voters proven to have been received by him in this
precinct (there are 84 names in addition to these proven to be of
illegal voters, for which there are no ballots, and we disregard them),
and it is held that the adoption of this method for the purging of said
poll will necessitate the deduction of 252 votes from the returned
votes of contestee.
The minority views,\1\ after quoting section 442 of McCrary's
American Law of Elections, say:
Returns which are impeached are good for no purpose whatever; they
prove nothing; and to us the result seems inevitable that if it is
admitted, as it is by every member of the committee, that the judges of
the election were corrupt and the election fraudulent, that then the
whole of the return becomes valueless, does not import verity, and can
be used for no purpose whatsoever. The rule of the law, falsus in uno,
falsus in omnibus, applies and we have no middle course except to admit
all or reject all; and we shall not attempt to argue the absurdity of
taking ballots from the same source, numbered by the same hands, and
which are proved to be numbered wrongfully, and from these numbers and
ballots determine who the illegal voters cast their ballots for. The
rule is a safe one; no one is injured by it; it deprives no one of a
single legal vote; for when returns are excluded, it is always in the
power of the candidate who believes he has a majority of the legal
votes to call the voters and prove whom they cast their ballots for.
In the debate it was urged \2\ that the officers of the election were
not the agents of either party, but were officers of the law, and there
was no presumption one way or the other on account of their acts. Legal
authorities on this point were adduced.
-----------------------------------------------------------------------
\1\ By Mr. Thompson, of Massachusetts, Record, p. 2843.
\2\ Submitted by Mr. William R. Brown, of Kansas.
Sec. 909
909. The case of Le Moyne v. Farwell, continued.
Illustration of a vague and uncertain specification in a notice of
contest, which was nevertheless considered.
Discussion by a divided committee as to the status of paupers at a
poorhouse with reference to question of residence.
Discussion as to the evidence required to reject votes of alleged
paupers received and counted by the election officers.
The House declined to be bound by a decision of a State court on an
analogous question, but not the identical question of qualification of
voters.
(2) The majority report thus sets forth a question as to the
residence of certain alleged paupers:
Norwood Park: At this precinct the contestee received 51 and
contestant 94 votes.
The contestee, in his answer, charges:
``Third. That a large number of illegal voters, to wit, over one
hundred, who temporarily were inmates of the poorhouse in the town of
Norwood Park, and who were not legal voters of said town, were allowed
to cast their votes for you, which were counted and returned for you.''
This charge is very vague and uncertain, and leaves the reader in
ignorance of any other objection to these voters than the simple fact
that they are paupers. But as the law of Illinois allows paupers to
vote, it is evident that the objection, as disclosed by the testimony
and the brief of the contestee, is to the residence of these supposed
paupers.
The report criticises the evidence presented to prove that these were
paupers as negative and not the best evidence when the law of Illinois
required a list of persons admitted to the poorhouse to be kept as a
public document.
The votes of the alleged paupers were received in accordance with all
the precautions of the law as to challenges. Therefore the majority
report argues:
No fraud being proved, or attempted to be proved, in the officers who
received the votes, the question recurs, what degree of proof, as to
the illegality of these voters, ought to obtain to justify this
committee in excluding votes thus received, counted, and duly
certified?
In the celebrated New Jersey cases (1 Bart., p. 25) the committee
say:
``It is not sufficient that there should exist a doubt as to whether
the vote is lawful or not, but conviction of its illegality should be
reached to the exclusion of all reasonable doubt before the committee
are authorized to deduct it from the party for whom it was received at
the polls.''
In Rogers's Law and Practice of Election Committees, page 116, it is
said:
``So in petitions against candidates on the ground of want of
sufficient qualification, although a negative is to be proved, it is
the usage of Parliament that the party attacking the qualification is
bound to disprove it.''
So run all the authorities, that a vote once legally cast can not be
set aside except upon proof so strong as to produce the certain moral
conviction that the said vote was illegal. The burden of proof is on
the party assailing the vote. See Cessna v. Myers (McCrary, p. 426),
wherein Judge Hoar, in behalf of the committee, says, ``The burden of
proof, when either party insists that a vote should be deducted from
those cast and returned for his competitor, is upon that party to show
the person whose vote is in question voted, and that he voted for his
competitor, and that he lacked some one of the qualifications to
constitute him a voter.''
Admit, for the argument, that the law of Illinois disqualifies
paupers from voting in that State, is the testimony in this case
sufficient to satisfy the judgment that those ``employees,'' as they
were called, were paupers? We think not, though, secondarily, the
weight of evidence is that they were a class employed by the
superintendent of the poorhouse by order of the board to do work upon
the county farm an about the premises, and to receive their clothing
and food as a compensation. We know the human heart revolts at being
called a pauper, and that there are many, many poor persons in
Sec. 909
every county who would gladly work the remainder of their days for
their food and clothing rather than be called paupers. To this class,
it seems to your committee, these voters belong. Therefore, in the
light of the authorities and the evidence, your committee could not
strike off these votes, even if the law prohibited paupers from voting.
But the law of Illinois does allow paupers to vote, and the contestee
attacks, in his evidence and the brief of his very learned and able
counsel, the residence of these parties. This brings us to consider the
law of residence within the meaning of the constitution of Illinois so
as to allow the exercise of the election franchise.
No question has been more discussed and to less purpose than the
definitions of ``residence'' and ``domicile.'' No two authors precisely
agree in their attempt to define them. But all agree upon the universal
principle that every man must have a domicile. We can well understand
why a strict rule should apply in the definitions of these terms, as
has ever been and will be, in regard to domicile where the rights of
property, the law of descent and distribution, the law of the duty of
the citizen or the subject to his government, are involved. We can as
readily see, in regard to suffrage, why the strictness of the rule
should not apply in our Government. While the extent to which suffrage
may be carried is under the control of the law power of the several
States, conferred by their constitutions, yet suffrage in some form is
inherent in our Government and forms its very basis. Without the free
and legitimate exercise of this right, we can have no republican
government; and all laws passed by the States requiring its exercise in
particular localities and requiring a residence are not to abridge the
sacred right, but to guard and protect it from abuse and violation.
The report then goes on to quote Vattel, Story, the American
Cyclopedia, Bouvier, and the House cases of Monroe v. Jackson, Covode
v. Foster, Taylor v. Reading, and Cessna v. Myers, and concludes:
Upon this brief summary of these cases, it is evident that the weight
of authority is to the point that paupers at a poorhouse do acquire
there a residence within the meaning of the election laws prescribing a
residence as a requisite to suffrage.
There had been in Illinois decisions of the court (Paine v. The Town
of Durham, 29 Ill., 125; Freeport v. Supervisors, 41 Ill., 41) that
paupers did not lose their residence in the towns from which they went,
nor did they acquire a residence at the poorhouse. The report calls
attention to the fact that the law of Illinois allowed the towns to
take care of their own poor or to have them cared for at a county
poorhouse. It was therefore evident that had the court authorized the
contrary doctrine, the town where the county poorhouse was located
would become responsible for all the county paupers. The report points
out that these decisions have reference to a police matter merely and
have ``no reference or bearing upon the constitutional provision in
regard to suffrage.'' Therefore the majority of the committee decline
to be bound by the decisions of the court.
The report quotes the constitution of Illinois:
Every person having resided in this State one year, in the county
ninety days, and the election district thirty days shall be entitled to
vote.
A law passed by the legislature also provided as quoted and commented
on in the report:
``A permanent abode is necessary to constitute a residence within the
meaning of the preceding section.''
Certainly it will not be contended that the legislature had a right
to change the constitution, or so to construe it as to enlarge or
restrict the right of voting. It can do neither, and their act on the
subject of residence is null and void; and we must decide this question
as if it had never passed, and look alone to the constitution for our
guide. By that constitution we find ``every person having resided,''
etc. This is certainly putting the question of residence in its mildest
form, and rebuts the presumption that the constitution means that a
man, before he can vote in Illinois, must have a domicile in the sense
of the old
Sec. 909
and strict construction of that word when applied to contracts,
distribution, etc. In the opinion of your committee, ``having resided''
simply means that a man shall, in good faith, have lived in Illinois
for twelve months, not as a mere itinerant or visitor, but that he
shall have been substantially engaged in business there during that
time. Given the construction contended for by contestee, then there is
a very large class in that State who do not dwell in poorhouses who
would be disfranchised. The law of Illinois is rather singular in this.
It requires the relatives of a poor person, if they are able, first to
support them, in the following order: First, children shall support
their parents; next, parents support their children; next, brothers and
sisters; next, grandchildren; next, grandparents. And it is made the
duty of the State's attorney for the county to apply to the court for
judgment and award of execution such relative for the support of his
pauper kinsman; for the statute recognizes all persons as paupers who
are not able to support themselves. Will it be contended that these
poor persons, living in the family of their relatives, do not acquire a
home, a residence there, because they are placed there in obedience to
the law? Surely not. If so, we would witness the painful spectacle of
disabled soldiers and some of the most intelligent citizens
disfranchised because of poverty and because they live in the family of
their relatives, away from the town in which they had previously lived.
This is as much their poorhouse under the law as the county building
is the poorhouse of those who have no relatives within the degree able
to support them. If the home of the family in which he lives is not
his, then he has none--no home on earth. So with the pauper at the
poorhouse. It is his home, his residence; he has none other. It is idle
to say his residence is a restrained one. It is not. He can leave when
he pleases. He is there for no offense; paying the penalty of no
violated law. His only crime is poverty, and he is there to receive the
bounty of his county or his town, as the most convenient place. It is a
necessity that compels him to go there, but it is not the necessity of
duress which deprives him of his volition and his intent. Unlike the
lunatic, the infant, and feme covert, he is a free agent, to think and
act for himself, except so far as he is restrained by poverty. The
humblest citizen in his little hut, living perhaps on one meal a day,
is restrained by poverty, yet he is a freeman and a voter. That
necessity which compelled them to go to the poorhouse will compel them
to remain; and if there be one class above another whose homes, whose
residences, are fixed, it is this class of persons. We presume but few
go animo revertendi, but they go with the expectation of spending the
remainder of their days there. Then admitting these persons to be
paupers, which we do not, in the opinion of this committee, their home,
their residence, their permanent abiding place is at the poorhouse, and
they have a right to vote in the Norwood Park precinct, in which the
poorhouse is.
The minority views combat the above argument:
Norwood Park is a small country precinct, casting outside the poor
farm only eighty-four votes. In such a precinct every man knows and is
acquainted with his neighbor, and especially is this true of the
officers and business men in such a place; and when these come up and
testify that they do not know these men, and have never known them
there, the evidence seems to us very conclusive. In speaking of this
class of testimony Mr. McCray says (American Law of Elections, sec.
356):
``This kind of evidence is admissible for what it is worth, but it is
manifest its value must depend upon circumstances. If the district or
territory within which the voter resides is large or very populous, and
the witness has not an intimate and extensive acquaintance with the
inhabitants, the evidence will be of little value, and, standing alone,
will avail nothing. But on the other hand, if such district or
territory be not large or populous, and if the witness shows his
acquaintance with the inhabitants is such that he could scarcely fail
to know any person who may have resided therein long enough to become a
voter, his evidence may be quite satisfactory, especially if it further
appears that soon after the election the alleged nonresident voter
could not be found in the district within the limits of which all
voters must reside. Proof of this character must at least be regarded
sufficient to shift the burden upon the party claiming that the vote of
such alleged nonresident be counted and require him to show
affirmatively that he is a bona fide resident.''
The evidence in this case of Winship, justice of the peace; Corse,
town clerk; Pennoyer, an old resident of ten years; Ball, who had lived
in the town since it was organized and had been through it three times
within two years in assessing and collecting taxes, and of Stockwell,
certainly is sufficient to change the burden of proof and throw upon
Mr. Le Moyne the duty of showing such prior residence. But instead of
attempting this, Mr. Kimberly, the warden of the poor farm, and Mr. Le
Moyne's only witness, directly testifies that he does not know that
these men had been residents of Norwood Park, and if cor-
Sec. 910
roborative evidence was necessary that they had no residence in the
town except at the poor farm, it is found in the fact that John Walsh,
deputy warden of the poor farm, signs all the affidavits as witness,
showing in itself that the men were not acquainted in the town. Now, if
these men had no prior residence at Norwood Park could they have
obtained one by being inmates of the poorhouse? To us the answer is
plain--that as employees they could; as paupers they could not
The minority then examines the authorities, after which they consider
the status of the alleged paupers, coming to the following conclusions:
We believe every rule of evidence would require us to come to the
conclusion that the seventeen men whom Mr. Kimberly will not attempt to
prove to be employees were paupers; for certainly their place of
residence, their appearance, the manner in which they were brought to
the polls, and the manner in which they were voted would raise that
presumption, and, in the language of Mr. McCrary, at least shift the
burden of proof upon the contestant.
Were the others not also paupers? Mr. Kimberly, the warden of the
poor farm, testifies that they belonged to a class of employees ``to
whom, in lieu of money, I allow payment in the way of extra clothing,
board, and accommodation and liberties''--persons who were not on the
pay rolls, but employed as ``assistants in the bakery, cooks in the
kitchen, men in the washhouse and soup house, men in care of the wards
of the almshouse, nurses, teamsters, men in care of the stock, and men
on the farm--gardeners.'' They are paid in ``extra board,
accommodations, clothing, and are allowed small perquisites, liberty.''
The same witness stated that he could not state where the men came
from, but presumes ``most of them were convalescent patients from the
hospital, and that they came on physicians' certificates in the city,
and that, as a general thing, they came to the institution as
paupers;'' that, ``generally, this extra employment was given to the
inmates of the institution.'' He also states the regular corps of
employees consisted of twenty-one men and twenty-three women. We submit
that this evidence of Mr. Kimberly is conclusive that these men were
paupers, and came there mostly from the city. The manner in which such
institutions are usually conducted is, to have a regular force of
persons hired and paid to take charge, and that the assistants are
always paupers; that the very object of having such an institution on a
farm is to furnish such employment as the inmates may be capable of
performing, so that they may, in part, make the institution self-
supporting; and we do not understand that the mere fact that paupers
labor, that a system of rewards is established to encourage them to
labor, that thereby their status is changed. The very evidence of
Kimberly calling their pay ``extras'' shows that without this
employment they would receive ordinary fare. Notice his language:
``Extra board,'' ``extra clothing,'' ``privileges at first table,''
``extra diet,' ``in the winter time an extra meal,'' ``extra allowance
of clothing,'' ``privilege of selecting their own ward,'' ``small
perquisites.'' The evidence is so convincing that we hardly feel that
we need go beyond Kimberly's testimony to show that these employees
were paupers from the city; but we have, besides, conclusive evidence
as to their status. Comparing the lists we have made of persons who
called themselves paupers and those whom Kimberly calls employees, we
find that the names of Thomas Sage, Hugh Gallagher, Daniel McFarland,
I. A. Hipwell, John Campbell, Daniel Boyle, and M. A. Kinsella appear
on both lists, showing that these men did not conceive these extras
changed their status, and that they were not paupers, supported by the
county, as they stated they were. If ever a witness was contradicted,
Mr. Kimberly is, by the very facts he testifies to, and by the
statements of the very men whom he claims as his employees. The
conclusion, to our mind, is irresistible, that these persons were never
residents of Norwood Park, and were paupers; and we reject the votes of
each and all of the forty-seven voters named on our two lists.
910. The case of Le Moyne v. Farwell, continued.
A return made up ``irregu1arly from ballots that had not been
properly kept'' was rejected.
Affidavits given by nonregistered voters need not be signed; but the
jurat must appear or the votes are rejected.
(3) The report rejects the returns from the third precinct of the
Eighteenth Ward of Chicago ``as wanting in regularity and certainty.''
After the election
Sec. 911
had closed the ballot box, ballots, and all papers pertaining to the
election were taken to a saloon and left over-night in inadequate
custody of one who was not an officer of election or authorized to have
care of the ballot box under the law. On the day after the election
some of the election officers with others unauthorized took charge of
the box and papers, made a count, and drew up a return, which was
claimed to be an official return.
(4) The report further says as to another precinct:
Contestee objects to a number of affidavits furnished by
nonregistered voters, because of their not being signed by the
affiants, though properly certified to by the officer taking the same.
We hold that said affidavits are clearly sufficient. In this precinct
contestant objects to seven affidavits furnished by voters for
contestee, upon the ground that they do not appear to have been sworn
to before any officer. There is no jurat thereto; it is agreed that the
same are fatally defective, and 6 votes therefore should be deducted
from contestee.
As a result of their reasonings the majority report finds contestant
elected by a majority of 106 votes, and presents resolutions unseating
sitting Member and seating contestant.
The report was fully debated in the House for three days, and on May
3 \1\ resolutions declaring sitting Member entitled to the seat offered
by the minority as a substitute, were disagreed to, yeas 89, nays 129.
Then the resolutions of the majority, seating contestant, were agreed
to without division.
911. The Minnesota election case of Cox v. Strait, in the Forty-
fourth Congress.
The State legislature having included a county within a Congressional
district, the House did not examine whether or not it was technically
entitled to be so included.
County commissioners having established election districts at a
special meeting when the law specified a stated meeting, the action was
void.
The election district having been illegally constituted, the votes
cast therein were rejected.
On April 12, 1876, \2\ Mr. John Harris, of Virginia, from the
Committee on Elections, submitted a report in the case of Cox v.
Strait, from the Second district of Minnesota. The election in question
was held on November 3, 1874, and the official canvass showed a
majority of 221 votes for sitting Member. The contestant sought to
prove sufficient fraud and irregularities to overturn this result. The
questions examined were:
(1) In the vote of the Second district was included that of Kandiyohe
County, to which the legislature had in 1870 added what had formerly
been Monongalia County. And as the districting act had left to the
Third district all counties not specifically enumerated as in the First
or Second district, and as Monongalia County was not especially
mentioned as in the First or Second district, it was urged by
contestant that contestee was not entitled to the majority of 188 votes
returned for him from the territory of Monongalia County. The ground of
the contestant for
-----------------------------------------------------------------------
\1\ Journal, pp. 910-912; Record, pp. 2834, 2885, 2918-2922.
\2\ First session Forty-fourth Congress, House Report No. 391; Smith,
p. 428; Rowell's Digest, p. 309.
Sec. 911
making this claim was that the consolidation of the two counties was
unconstitutional and void. The report says:
Section 1, article 11, constitution of Minnesota, is as follows:
``The legislature may from time to time establish and organize new
counties, but no new county shall contain less than four hundred
[square] miles; nor shall any county be reduced below that amount; and
all laws changing county lines in counties already organized, or for
removing county seats, shall, before taking effect, be submitted to the
electors of the county or counties to be affected thereby, at the next
general election after the passage thereof, and be adopted by a
majority of such electors. Counties now established may be enlarged,
but not reduced below four hundred square miles.''
The contestant claims that the clause which prohibits the reducing of
the counties then existing below 400 square miles, and the provision
that counties then existing may be enlarged, but not reduced below 400
square miles, prohibit the extinguishing of the county of Monongalia by
consolidating it with the county of Kandiyohi, and that the act of the
legislature of Minnesota consolidating those counties is
unconstitutional and void, and that Monongalia is now in fact a county,
and not being included by name in either the First or Second district,
belongs to the Third district instead of the Second. It appears that
the object sought to be accomplished by that section of the
constitution is to prevent the reducing of the original counties below
400 square miles, and the formation of new counties with a less amount
of territory than 400 square miles, and to prevent the changing of
county lines in counties then organized without the consent of the
electors of the counties to be affected thereby. The legislature
certainly has the right to consolidate counties formed subsequent to
the adoption of the constitution. There is no direct prohibition to the
consolidating of original counties, and thereby forming a new county.
The only direct prohibition is that the county so formed shall not
contain less than 400 square miles. The power to form new counties
without specifying the territory out of which they may be formed
certainly gives the right to form a new county by consolidating
counties, whether original or otherwise, unless the prohibition
relative to reducing the original counties below 400 square miles shall
be held to forbid the extinguishment of a county by consolidating it
with another county. This does not seem to be the mischief designed to
be remedied. In fact, the consolidating of counties might be a remedy
for the evil and in manifest futherance of the object of this
constitutional provision, viz, to avoid the existence of small
counties. Constitutional restriction upon legislation must be plain and
certain. A State legislature has supreme power of legislating except
where it is restricted by the constitution, and everything will be
presumed in favor of the power of the legislature. The courts will not
declare an act unconstitutional unless it is clearly made so by an
express provision of the constitution. Your committee are strongly of
the opinion that the act consolidating those counties is
constitutional, but have not deemed it necessary to decide that
question in this case. The real question is, What territory was
included in the Second district? The representative districts are
formed of contiguous territory. In 1872 the legislature of Minnesota
set off a certain amount of territory as the First district, a certain
amount of territory for the Second district, and then enacted that all
the territory of the State not included within the First and Second
districts should compose the Third district. The legislature designated
the territory to be comprised in the Second district by in naming the
counties to be included in it, and it must be assumed that it included
the territory which the legislature itself had determined belonged to
said counties. The legislature passed the act of 1870 consolidating
Monongalia and Kandiyohi counties, and the same was made effectual by
the methods provided in the act. The consolidation of the counties was
recognized in the division of the State into senatorial and
representative districts in 1871 (chap. 20), and it is plain that the
legislature when it designated the county of Kandiyohi as a part of the
Second district designated it as it was formed by itself and did
include in it the territory which formerly composed the county of
Monongalia. Your committee, therefore, find that the majority of 188
votes canvassed for the sitting Member was rightly canvassed, and ought
not to be deducted from his majority of 221.
(2) As to the illegality of certain voting precincts, the report
says:
Second. It is provided (p. 220, Stat. L., see. 19) that the board of
commissioners shall meet at the county seat of their respective
counties, for the purpose of transacting such business as may devolve
upon or be brought before them, on the first Tuesday of January and
September in each year, and may
Sec. 912
hold such extra sessions as they deem necessary for the interest of the
county; such extra sessions shall be called by a majority of the board,
and the clerk shall give at least ten days' notice thereof to the
commissioners, but no regular session shall continue longer than six
days, and no extra session longer than three days.
Page 233, section 31: The commissioners of such county (any county
not divided into towns) shall, at their stated meetings in January and
September, upon the petition of not less than 10 legal voters not
residing within 10 miles of any established election district, create
and establish within said county an election district at such point as
will be most convenient for the persons so petitioning; but no place of
holding elections shall be located in said election districts within 10
miles of any other place of holding elections previously established,
nor shall the commissioners create any election district except at the
time of their stated meetings, and then only in compliance with the
request of 10 or more legal voters residing not less than 10 miles from
any established election district. The election districts of Southeast,
Blaen Avon, Michigan, South, Ceresco, East, and Northeast were not
established at a stated meeting of the county commissioners, but at a
special meeting holden October 5, 1874 (pp. 50, 51, record), and were
therefore not legally established. The action of the county
commissioners was without authority of law, and null and void, and no
legal election could be held at either of said districts; therefore 111
votes must be deducted from the majority reported for the contestee--
that being the majority he received in said districts which was
wrongfully canvassed for him.
912. The case of Cox v. Strait, continued.
Although election officers left the ballot box unguarded while
adjourned for dinner, the returns were not rejected in the absence of
evidence of fraud.
Although de facto officers presided and returns were transmitted
unsealed by an unauthorized person, the House did not reject the
return.
As to the evidence required to establish a charge of bribery.
Irregularities unaccompanied by fraud do not vitiate the return.
(3) In the town of West Newton the election judges closed the polls
for about an hour while they took dinner, the ballot box being left in
the election room, which adjoined that in which the dinner was taken.
After quoting the evidence, the report holds:
Your committee regard the conduct of the judges of election at this
place in leaving the ballot box for the space of an hour unsealed and
unguarded as highly reprehensible. It is of the highest importance that
the ballot box should be guarded and protected in the most careful
manner; that all the provisions of law made for the security of the
ballot should be strictly obeyed. There should not be the least
opportunity for tampering with the ballots. It is certainly a serious
question whether such an irregularity as this ought not to vitiate the
election; but your committee under all the circumstances have not felt
compelled to reject this entire poll, there being no evidence that the
ballot box was actually tampered with, but, on the contrary, there is
some negative testimony showing that it was not tampered with. Your
committee would, were there any facts tending to show that the ballot
box had been tampered with, have decided to reject the returns from
this poll. The adjournment for dinner has frequently been decided not
to be sufficient to vitiate an election. The law of the State of
Minnesota provides that no election returns shall be refused where
there has been a substantial compliance with the law.
Section 40, election law of Minnesota:
``Sec. 40. No election returns shall be refused by any auditor for
the reason that the same are returned or delivered to him in any other
than the manner directed herein; nor shall the canvassing board of the
county refuse to include any returns in their estimate of votes for any
informality in holding any election or making returns thereof, but all
returns shall be received and the votes canvassed by such canvassing
board and included in the abstracts, provided there is a substantial
compliance with the provisions of this chapter.''
The fact ought also to be considered, in determining what should be
done with the votes at this
Sec. 913
place, that the contestant did not in his notice of contest claim that
the ballot box was tampered with, or even left unguarded, but rested
his claim to have the vote excluded upon the sole and untenable ground
of the adjournment of the judges of election for an hour at noon.
(4) As to West Newton precinct certain questions were settled thus:
It does not appear from the evidence that the ballot box was not all
of the time in sight of some one of the election officers during the
adjournment for dinner, and we apply the same rule here as in the case
of the town of West Newton. It does not appear that any unnaturalized
person voted, and the officers who presided at the election were de
facto officers, and there is nothing shown which so impeaches their
action as to vitiate the poll on that account. The returns should have
been conveyed to the county auditor by one of the judges of the
election sealed, but were conveyed by the witness, an unauthorized
person, and were unsealed. This is a grave irregularity, but the
evidence is that he delivered the returns to the county auditor just as
he received them from the town canvassers, and this testimony is not
impeached. The committee do not, therefore, reject the returns from
this town.
(5) As to a charge of bribery:
Sixth. The contestant claims that 200 votes given for the contestee
should be deducted for bribery. The evidence shows that Ph. Stelzer
received a check for $25 in a letter which purported to be from the
contestee, and requesting Stelzer to use his influence in the election
for the contestee (pp. 38, 39). Also Julius Christianson received $2
from one J. B. Sackett the day before election, and was promised $2 on
election day, ``to peddle Republican tickets with H. B. Strait's name
on.'' The $2 promised was paid the day after election. A. J. Lamberton
testified that ``common report was that J. B. Sackett and William
Beckel were distributing a great deal of money for the purpose of
buying and influencing votes for H. B. Strait for Member of Congress.''
But he had no personal knowledge of a dollar having been spent for that
purpose. Your committee find the evidence wholly insufficient to
establish the charge of bribery.
(6) As to irregularities not accompanied by charges of fraud:
The contestee makes counter charges, alleging irregularities in a
large number of voting precincts which gave a majority for the
contestant. These voting precincts are in the counties of Carver, Le
Sueur, Sibley, and Dakota, but the irregularities, where any are shown
to exist, relate to the manner of returning the votes, the swearing of
the election officers, and adjournment for dinner, and are not of that
nature and character and extent which, unaccompanied with fraud, will
vitiate the returns.
In conclusion the committee found:
The committee do not make any deductions from the votes of the
contestant, and only deduct from the contestee the majority of 111
votes which were canvassed for him in those precincts in Lyon County
which were not legal voting precincts. The returns as corrected give
Horace B. Strait 110 majority, instead of 221. Your committee find that
he was elected by that majority, and recommend the passage of the
following resolution:
Resolved, That Horace B. Strait was duly elected, and is entitled to
retain the seat which he now holds from the Second Congressional
district of Minnesota.
On June 23 \1\ the resolution of the committee was agreed to in the
House without debate or division.
913. The Louisiana election case of Spencer v. Morey.
The making of essential tally-lists by unsworn volunteers, combined
with other irregularities, caused the rejection of return, although no
fraud was shown.
The record of a trial in a State court as to a title to a State
office is not competent evidence in an election case, although relating
to the election in question.
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\1\ Journal, p. 1143; Record, p. 4076.
Sec. 913
On April 27, 1876,\1\ Mr. John F. House, of Tennessee, from the
Committee on Elections, submitted the report of the majority of the
committee in the Louisiana case of Spencer v. Morey. It was admitted
that the result was not impeached in any parts of the district except
in the precincts of Carroll Parish and in the Fifth precinct of
Concordia Parish. Outside of this contested territory Mr. Spencer, the
contestant, received a majority of 1,396 votes. Therefore the sitting
Member's majority depended on the disposition of the questions relating
to the disputed territory. The examination of the case is naturally
divided into two main branches:
(1) As to the fifth precinct of Concordia Parish.
The law of the State provided:
That immediately upon the close of the polls on the day of election,
the commissioners of the election at each poll or voting place shall
proceed to count the votes. * * * The votes shall be counted by the
commissioners at each voting place immediately after closing the
election and without moving the boxes from the place where the votes
were received, and the counting must be done in the presence of any
bystander or citizen who may be present. Tally lists shall be kept of
the count, etc.
Sec. 45. Be it further enacted, &c., That any civil officer or other
person who shall assume or pretend to act in any capacity as a
commissioner or other officer of election to receive or count votes, to
receive returns or ballot boxes, or to do any other act toward the
holding or conducting of elections, or the making returns thereof, in
violation of or contrary to the provisions of this act, shall be deemed
guilty of a felony, and, upon conviction thereof, shall be punished by
imprisonment in the penitentiary for a term not to exceed three years
nor less than one year, and by a fine not exceeding three hundred
dollars nor less than one hundred dollars.
Of the conduct of the commissioners of the parish the majority report
says:
In view of the specific requirements of the law upon the subject, it
must be admitted that the conduct of the commissioners in totally
disregarding its plain provisions is somewhat extraordinary. The law
required them not to remove the ballot box from the place where the
election was held until they had counted every vote in it in, the
presence of such of the voters as saw fit to be present and witness the
counting. This counting they were required to commence immediately on
the close of the polls, and their returns were to be made out and
delivered to the supervisor of registration within twenty-four hours
after the voting ceased.
Instead of doing this, after the close of the election, between 6 and
7 o'clock in the evening, they took the ballot box and started with it
to Vidalia, the parish site, a distance of some 16 miles from the
voting place. Dameron, one of the commissioners, who is sworn by both
parties, in his testimony says when the polls were closed the box was
locked, and he took the key and gave the box to Robert H. Columbus,
another commissioner. They started to Vidalia on horseback, and when
they arrived at the store of one Witherspoon, the suggestion was made
that Dameron should get into a buggy with one Irvine and take the
ballot box in the buggy with him. They then proceeded to Vidalia, one
of the commissioners riding in front and the other in rear of the
buggy, on horseback. They reached Vidalia between 11 and 12 o'clock
that night, and finding the court-house occupied by the officers of
election at Vidalia, they went upstairs into the room of the tax
collector, opened the box, and commenced counting the votes. They
counted until half past 2 o'clock that night, when, being fatigued,
they adjourned for the night. When the box was closed, Dameron says he
locked it and gave the key to Columbus, and took the box himself with
him to the hotel, where he and William C. Yorger, United States
supervisor, occupied the same room for the balance of the night. The
box was placed under the bed during the night. The next morning,
Dameron says, he took the box with him to the table when he went to
breakfast. After breakfast they again met in the upstairs room of the
court-house, opened the box, and commenced counting, and after counting
there a while went down into the court room. They completed their
returns on Wednesday night, November 3, between 10 and 11 o'clock, and
made their returns to the supervisor of the parish on the next day, 4th
November, between 12 m. and 1 o'clock p.m. Dameron further says
-----------------------------------------------------------------------
\1\ First session Forty-fourth Congress, House Report No. 442; Smith,
p. 437; Rowell's Digest, p. 311.
Sec. 913
that during the time they were counting the votes in the tax
collector's office there were several spectators present; the tax
collector's office was considered a public office; says when he went to
his meals, during the counting, he left the box in the court room in
charge of his co-commissioner Columbus, and took the key himself, and
when Columbus went to his meals he took the key, leaving the box in
Dameron's custody. Columbus and Jefferson, the other two commissioners,
being colored men, did not take their meals at the same place Dameron
did.
The minority views call attention to the fact that Dameron, who was
most prominent in the action, represented the political party friendly
to contestant. The former law had required the election commissioners
to go to Vidalia to count the vote, and they appeared to consider the
requirement still in force. The minority views continue:
No other presumption can arise out of this evidence than that they
supposed and believed the law required them to go to Vidalia, the
parish seat, and there count the votes, and that this was done by them
in order to conform with the law, as they supposed it to be, and not
with the intent to commit fraud in connection with the election;
especially when we understand that the election laws of Louisiana, in
force at the last election prior to this one, and for some time prior
thereto, provided that ``at the conclusion of the election, at each
poll, the boxes containing the ballots shall be securely locked and
sealed, and taken immediately by the commissioners of election to the
parish seat, where they shall be counted out by the said commissioners,
in the presence of the supervisors of registration and election of the
parish.'' It certainly would be a violent presumption to presume
anything else than this from the evidence before us. There is not a
scintilla of evidence proving fraud of any kind, nor is any attempt
made to prove fraud by contestant, nor was it urged in argument that
any fraud was committed; but it was urged that the mere fact of
removing the box gave an opportunity for fraud.
The evidence shows that the box was never out of the hands of the
lawful custodians until the votes were counted and the returns made.
Until the contestant proves some act showing fraud on the part of the
commissioners, or some one of them, or some act from which fraud will,
be presumed, the law is that their acts must be taken as having been
honestly performed. The legal presumption is against fraud on the part
of the officers of election, and that nothing but the most unequivocal
proof can destroy the credit of official returns. (See Goggin v.
Gilmore, 1 Bart., 70; Little v. Robbins, same; p. 130.) The burden of
proof is upon contestant to prove the fraud. We do not deem it
necessary to cite authorities to establish this legal proposition. We
conclude therefore that, as there is no evidence proving fraud, or any
evidence from which fraud can be presumed in connection with this box,
the committee will not, in the absence of such proof, conclude that
because there was an opportunity for fraud that therefore fraud was
committed. Certainly this would be a monstrous violation of the legal
presumption in regard to legal acts, viz, that all persons are presumed
innocent until proven guilty, that officers are presumed to have
performed their duties, and to have performed them honestly, and that
the mere opportunity to commit a crime, in the absence of other
evidence, will. not be taken as a presumption to establish the fact
that a person committed the crime. The evidence regarding this box,
taken all together, does not even raise the presumption of fraud.
The majority of the committee say on this point, and on a second
question raised as to these returns:
Whatever may be thought as to whether those portions of the law are
mandatory or directory which require the votes to be counted at the
place where they axe polled, without removing the ballot box, in the
presence of such voters as may see fit to witness the count, and the
commissioners to make their return to the supervisor of the parish in
twenty-four hours after the close of the polls--all of which provisions
were intentionally violated or ignorantly disregarded by the
commissioners--we assume that there can be no two opinions on the
proposition that that part of the law which requires the commissioners
to make a correct count of the votes cast is certainly imperative.
Before entering upon their duties, as we have seen, they are required
to swear that they will ``carefully and honestly canvass'' the votes.
How were the votes at this box counted? How did these commissioners
discharge their duty in this respect?
Sec. 913
The keeper of the tally list, to all intents and purposes, makes the
only record from which the votes can be counted. If his list is
correct, the number of votes cast can be correctly ascertained; if his
list is erroneous, the returns based on it are necessarily incorrect.
The tally keeper is, then, the party who counts the votes. The marks he
makes on the paper determine how many votes each candidate has
received. It is not pretended, and indeed can not be, that these
commissioners had any other mode or means of determining the result of
the election than from the tally sheets kept by parties ``picked up``--
to use Dameron's expression--at random in the court-house to tally the
vote. Can sworn commissioners, whom the law places around the ballot
box as guardians of its purity, and charges with the duty of
``carefully and honestly'' canvassing the votes at an election,
delegate to unsworn and irresponsible parties the delicate task which
the law imposes upon them alone? The law of Louisiana expressly
requires tally sheets to be kept; and when properly kept they are
authority upon the state of the vote. Says McCrary, in his Law of
Elections, section 291:
``In the case last named it was held that the tally sheet kept by the
officers of the election is competent evidence, in an election contest,
to show the true state of the vote. It is good until impeached, and
affords prima facie evidence of the votes cast for such candidate.''
This gives to the tally sheet kept by officers of the election the same
dignity and authority as the returns themselves, and properly so; for
the returns are based on the tally sheets, and unless the latter are
correct the former can not possibly be so, or import verity. Who were
Connell, Joyce, and Nutt, the three parties picked up in the court-
house to work upon these tally sheets? All we know of them is their
names. They were not officers of the election, and were not sworn to
discharge their duties faithfully. By the law of Louisiana it is made a
felony for any person not an officer of election to assume to act as
such in receiving or counting votes, or doing any other act toward the
holding or conducting elections, or making returns thereof; clearly
prohibiting all unofficial hands from touching anything connected with
holding elections or counting the votes. No legal presumption of
correctness attaches to their acts. If the tally sheets kept by them
can stand at all, they must stand on extrinsic evidence of their truth,
as they can lean on no legal presumption for support. It is no
extenuation of such a proceeding as this for witnesses to swear, as
Dameron does, that the election was all fair. Of what avail is a fair
election with a dishonest or uncertain count of the votes?
But, in addition to the absence of any legal presumption to support
such a count, Dameron says, in positive disparagement of the manner in
which the tally sheets were kept, ``I don't think the tally lists were
very regularly kept, as we had no regular tally keepers, and had to
pick them up as we could get them. I believe the tally lists were kept
as correctly as they could have been kept under the circumstances.''
Not ``very regularly kept,'' but ``I believe'' they were ``as correctly
kept as they could have been kept under the circumstances!'' The law
required him and his cocommissioners to keep them regularly. They had
been sworn to do so, and they were required to know of their own
personal knowledge that they were correctly kept, and yet this sworn
officer admits they were not very regularly kept, but excuses the
irregular manner in which they were kept by saying the commissioners
had to pick up such persons as they could get to keep them. Why did
they have to pick up anybody to discharge a duty which the law imposed
on them and them alone?
The minority \1\ thus answer the above argument:
It is further urged by contestant, however, that the fact that the
tally keepers were not sworn officers throws suspicion upon the count.
All the evidence on this subject is as follows: Dameron says: ``I do
not think the tally lists were very regularly kept, as we had no
regular tally keepers, and had to take them about as we could get them.
I believe the tally lists were kept as correctly as they could have
been kept under the circumstances.'' It can not be urged that this
statement would throw suspicion upon or impeach the returns, for
Dameron swears that they proceeded to make out the returns, and tally
lists in accordance with law. The law of Louisiana requires that the
election returns shall be sworn to by the commissioners, and Dameron
and the other commissioners took and subscribed to the following oath:
``Personally appeared before me, the undersigned authority, duly
appointed and qualified, commissioners of election of poll No.--,
election precinct of the parish of--, for the general election held
November 2, 1874, who, being duly sworn, depose and say that they
received the ballots cast at the said poll of the said precinct, and
that the above is a true return of the vote cast at the said poll on
the said day.
-----------------------------------------------------------------------
\1\ Minority views were submitted by Mr. G. Wiley Wells, of
Mississippi.
Sec. 913
It is not presumed that Mr. Dameron would be willing to swear and
subscribe to that which was untrue. And it is a conclusive legal
presumption that he was satisfied at the time when the return was made
that it contained a correct statement, as he swore. Nor does Mr.
Dameron swear that the return is not correct, nor is there any evidence
tending to disprove the return. The return, therefore, stands, taking
all the evidence in regard to it, as unimpeached. The law is well
established, and this House has repeatedly held that the introduction
of persons who were not sworn to assist in holding the election will
not of itself vitiate the return of the officers, without evidence of
fraud. (Eggleston v. Strader, 2 Bart., 897.) The evidence in this case
proves that all the officers were regularly appointed and sworn, but
that the commissioners requested some bystanders to assist in keeping
tally lists while counting the vote. It can not be maintained for one
moment that, in the absence of any proof of fraud or irregularities,
the legal returns should be rejected for this reason. There remains but
one other ground that can be urged against the receiving and counting
of these returns from this box, viz, the removing of the box from the
poll before the vote was counted. Taking the evidence altogether, we
are of the opinion that it established only an irregularity, and the
only question to be determined in regard to this poll is whether the
ballots cast at this poll shall be thrown out on account of the votes
not having been counted at the poll before it was removed.
The minority further call attention to the fact that the supreme
court of Louisiana (case of Burton et al. v. Hicks et al.) had declared
the Louisiana law providing the regulations as to the manner of
conducting and holding an election as directory merely. The minority
say also:
Even without the opinion of the supreme court, we are satisfied that
the law in contested elections sustains us in asserting that these
clauses are directory and not mandatory, and must be interpreted, in
view of the evidence, as directory in this particular case, for the
reason that the evidence does not tend to show that the actual merits
of the election were affected by a noncompliance with their provisions.
But the majority of the committee say:
The commissioners disregarded an imperative provision of the law
without the observance of which there can be no safety or certainty in
elections.
The integrity of their returns and their prima facie character are
therefore destroyed. There being no proof outside of the returns of the
vote of this ward or poll, it must be excluded from the count.
(2) The second branch of the case referred to the election in various
precincts of Carroll parish. The law of Louisiana provided that at each
polling place after the close of the polls the commissioners should
count the votes--
and after they shall have so counted the votes and made a list of the
names of all the persons voted for, and the offices for which they were
voted for, and the number of votes received by each, the number of
ballots contained in the box, and the number rejected, and the reasons
therefor, duplicates of such lists shall be made out, signed, and
sworn, to by the commissioners of election of each poll, and such
duplicate lists shall be delivered, one to the supervisor of
registration of the parish, and one to the clerk of the district court
of the parish, and in the parish of Orleans to the secretary of state,
by one or all such commissioners in person, within twenty-four hours
after the closing of the polls. It shall be the duty of the supervisors
of registration, within twenty-four hours after the receipt of all the
returns for the different polling places, to consolidate such returns
to be certified as correct by the clerk of the district court, and
forward the consolidated returns with the originals received by him to
the returning officers provided for in section two of this act, the
said report and returns to be inclosed in an envelope of strong paper
or cloth, securely sealed, and forwarded by mail. He shall forward a
copy of any statement as to violence or disturbance, bribery or
corruption, or other offenses specified in section twenty-six of this
act, if any there be, together with all memoranda and tally lists used
in making the count and statement of the vote.
If the returns, poll lists, etc., were deposited with the parish
clerk as required they nevertheless were not found there, and had
disappeared in some way. The testimony was conflicting as to whether
they were ever brought there.s
Sec. 914
A question of evidence is thus discussed by the majority:
Contestant offers in evidence in this cause a record in the cause of
Burton et al. v. Hick et al., a proceeding instituted by certain
parties who were voted for, the State or county officers, at the
election in Carroll Parish on November 2, 1874, to test the validity of
said election. To this suit neither contestant nor contestee is a
party. Contestee objects to the introduction of said record in this
cause because it is res inter alios acta. It is true the validity of
the same election at which contestant and contestee were voted for is
involved in the cause, yet neither of them being parties to the same
can be bound thereby. We therefore sustain the objection to the
introduction of the record, and exclude it as evidence in this case.
The minority views say on this point:
We think it will need no argument to satisfy the committee that this
evidence should be excluded. We are of the opinion that it should be
excluded on the grounds assigned by contestee, that it is ``res inter
alios acta'' (p. 331, record).
914. The case of Spencer v. Morey, continued.
An election officer being detected in fraudulent acts, a return in
due form signed by him and two unimpeached associates was not accepted
as evidence of the vote cast.
Returns having been lost or destroyed, testimony of election officers
being conflicting, and the voters not having been called, the vote was
not counted.
The election (distinguished from the return) was set aside when the
best obtainable evidence showed the vote only approximately.
The returns of a decisive portion of the district having been lost
and the vote not being proven aliunde, the House declined to declare
the seat vacant or examine further before seating contestant.
The legal returns of the parish not being available, questions arose
as to the votes of several precincts:
(a) From the precinct of the First Ward the returns were missing with
all the others from the clerk's office. The majority report says:
The only returns produced of the election at this poll is a paper
purporting to be signed and sworn to by the three commissioners, David
Jackson, T. B. Rhodes, and E. M. Spann. This paper is produced by the
witness, R. K. Anderson, on his examination, who seems to have been a
commissioner of election at Ward 3, in Carroll Parish, and to have had
no connection whatever with Ward No. 1. Says he received it from the
clerk of the court. How the clerk came to give it to him, how long he
had it in his custody, are questions on which Mr. Anderson furnishes no
information, and on which, strange to say, neither the contestant nor
contestee asks him to furnish any.
After discussing the testimony, the majority report continues:
The paper produced by Anderson seems on its face to be in due and
proper form as a return. The names of the persons voted for, the number
of votes received by each, the position for which each was supported,
the whole number of votes cast, the number rejected, and the reasons
given therefore, are all stated, and, as before shown, the paper duly
signed and sworn to by the three commissioners. The depositions of
Spann, Rhodes, and Jackson, the commissioners, are taken, the paper
produced by Anderson exhibited to them, and they all swear positively
that the paper shown them is the original of one of the duplicate
returns made out and sworn to by them after the election, and that it
contains a true statement of the result of that election.
The question arises, Can this paper be received and treated as a
legal return of the election held at this ward on the facts disclosed
in the record, some of which have been already adverted to, and some of
which will be noticed hereafter?
Sec. 914
If we assume, according to the statement of Spann, that the ballot
box and election papers were properly deposited in the office of the
clerk, it would seem a hardship to make the candidates for office
suffer the consequences of a loss by fraud, in which they had no
agency, and for which they are not, therefore, responsible. On the
other hand, it might appear dangerous to allow a paper to stand as a
valid return which comes from the pocket of a party not entitled to its
custody, his possession of it unexplained, and the paper unaccompanied
by its legal companions, the ballots, tally sheets, etc., and no
account given of their whereabouts, or how they happened to disappear
entirely, while the returns are permitted to see the light when an
election contest comes up. The law, as before shown, requires that
after the ballots are counted they shall be replaced in the box, and
the returns and the ballot box shall be deposited in the clerk's
office. By the ballots the truth of the returns can be tested and their
correctness verified. A paper purporting to be the returns comes to
light unexpectedly from a depository unauthorized by law, but the
written evidence provided by law to test its accuracy, in case of a
dispute or a contest, is missing. But there are other infirmative
considerations which enter into the question as to whether this paper
shall be received and treated as a legal return.
Burton, the ex-sheriff of Carroll Parish, swears that he detected
David Jackson, the commissioner who received the ballots from the
voters on the day of election, changing the votes handed him by the
electors for others which he put into the box instead of the ballots of
the voters. He says he charged him with it and complained to him of its
unfairness. ``He (Jackson) tried to bluff me out of it, but I showed
him the tickets he had dropped lying on the floor.'' On cross-
examination, Burton says he could not swear to more than one ticket,
which he saw Jackson change, but there was another on the floor in the
same position, but he does not know that this one was changed. Jackson
is not recalled, nor did contestee offer to recall him to deny this
statement.
Caesar Jones and Noah Lane both swear that they saw Jackson hand
greenbacks out at the window to voters. Lane says he saw him do it
several times. Jones says he saw him pass money out to voters several
times with their registration tickets as they were returned. Jackson
denies having handed out any money to voters, and swears he would not
believe Caesar Jones on oath.
David Jackson, the commissioner of election in the First Ward
precinct, was also the clerk of the parish, one Galbraith being his
deputy in charge of the office. The majority conclude that Jackson's
honesty is impeached by the testimony and by the disappearance of the
returns from his office, to the extent that no confidence can be placed
in the returns which had been in his custody. The majority further say:
It may be said that the names of the other two commissioners being to
the return makes it sufficient and valid as a return. It is true, as a
general rule, when the law requires a certificate to be made by a board
of officers composed of three or more persons, it is sufficient if a
majority of such board join in the certificate; but this rule was never
intended to be applied, nor could it be properly applied, to a case
where one of them had been guilty of fraudulent acts. Who can tell how
far the fraudulent acts of Jackson entered into that election? It is
impossible to tell; just as impossible as it would be, if poison were
dropped into a basin of water, to select the drops infected from those
that remained pure. The good faith of the other two commissioners can
not purge the ballot box of Jackson's fraud. It is for this reason that
the law holds, and wisely and justly holds, that fraud vitiates
everything into which it enters. It is for this reason that McCrary
says that no confidence can be placed in the contents of a ballot box
which has been in the custody of an officer detected in the
perpetration of a deliberate fraud. This position is strengthened in
this case from the fact that the ballot box, for a great portion of the
day, was placed in a room through the window of which the votes were
received. This window was 6 feet from the ground. The weight of proof
shows that the voter could not see what became of his ballot when he
reached it up to the window to the commissioner with his hand or on the
end of a stick, nor could the commissioners see the voter. The law
required that the commissioner should put the ballot in the box in
plain view of the voter. The object of this provision was to prevent
just such fraud as Jackson was detected in perpetrating. The law
further gives the voter the right to deposit his ballot in the box with
his own hand. This box was placed beyond his reach, and he was
practically denied thereby this right.
Sec. 914
And finally the majority conclude:
Upon the whole, we conclude that the paper produced by Anderson can
not be received as a valid return, and therefore reject it as such.
There being no proof aliunde of the vote at this poll, it must be
excluded.
The minority consider the evidence conclusive that the ballots were
properly deposited in the clerk's office, and explain their
disappearance by the fact that no law required their preservation
beyond the term of the district court and by the further fact that the
grand jury actually did investigate the election in Carroll Parish and
found nothing to require their action.
The minority put full confidence in the return, and say:
We therefore have the actual return made, which is the best evidence
of the vote cast at this poll. But the return is supported by three
witnesses. Contestant has wholly failed to show any legal reason why
this return should be rejected.
It may be argued that because the return was found in the possession
of an unauthorized person therefore it should be rejected. This
certainly can not be urged or supported upon any legal principle
governing contested elections. The officers discharged their duties,
made their returns, and deposited them in compliance with law. It
certainly would not be contended, if a thief had invaded the office of
the clerk and abstracted the returns, and they were found afterwards in
the possession of some person unauthorized, that it would be as much a
return as before it was stolen, provided the officers who made the
return should swear to its identity. But, further, on pages 111 and 112
of record, E. M. Spann, the Democratic commissioner, on November 23,
1874, makes an affidavit in which he gives the actual vote cast, and in
that affidavit he states that Morey received 569 and Spencer 33 votes,
corroborating in every particular the return, as well as the parol
evidence of Jackson and Rhodes. But the evidence before us does not
leave us in any doubt as to where this return came from. R.K. Anderson
(p. 49, record) swears that he received this return from the clerk of
the court, and Galbraith, as before stated, certifies to that fact. The
return, the moment that it is fully identified as one of the originals
made by the board, becomes the highest evidence that can be adduced as
to the result, and must be received as such until impeached by
evidence. We therefore accept the return as giving the correct result
at poll No. 1, Carroll Parish, of the votes cast for Members of
Congress.
The minority contend that the evidence fails to show that the
election was not lawful, or that there were any irregularities in
pursuance of an intention to defraud in the conduct of the voting, and
find that the returns should be accepted as true.
(b) As to the second precinct of Carroll Parish, the minority views
present a statement of the case and the contention of sitting Member:
It is admitted by both parties--contestant and contestee--that as to
this ward there are no official returns, ballots, or ballot box to be
found, except a poll list. They have been either abstracted or
destroyed.
The first question to be determined is, What evidence is necessary to
establish the vote cast at this poll? We are of the opinion that the
best evidence to establish the actual vote cast at this poll is the
evidence of the commissioners of election, and if it can not be
established by them, then by such other evidence as can be procured,
and we are clearly of the opinion that the commissioners' evidence as
to the vote cast at this poll is competent. We are sustained in this
opinion by the action of this House in the case of Adams v. Wilson,
Clark and Hall, 375, decided December 8, 1823, wherein the committee
and the House held ``that the testimony of the board of inspectors is
competent and ought to be received to correct any mistakes that may
have occurred in returning the votes given at said election.'' If the
commissioners' evidence is competent to alter or change the returns
certainly their evidence is competent to establish what the returns
were at the poll. The best evidence, viz, the returns, having been lost
or destroyed, secondary evidence is then admissible to establish what
were the contents of the written instrument, viz, the returns. We
understand the rule governing the admissibility of secondary evidence
with respect to documents to be that proof of their contents may be
Sec. 914
established by secondary evidence, fast, when the original writing is
lost or destroyed; secondly, when its production is a physical
impossibility, or at least highly inconvenient. Before, however,
secondary evidence can be introduced there must be evidence showing
that the documents once existed and are lost or destroyed. In this case
the proof establishes the fact that a search for the returns has been
made where, by law, they ought to have been found and that the search
has been unsuccessfully made. This evidence was introduced by
contestant, and the testimony of Galbraith, deputy clerk, shows that
the returns from Carroll Parish, poll 2, are not on file in the clerk's
office, the legal depository of them. Taylor, in his excellent work on
evidence, says (sec. 401): ``If the instrument ought to have been
deposited in a public office or other particular place it will
generally be deemed sufficient to have searched that place, without
calling the party whose duty it was to have put it there, or any other
person who may have access to it.'' Again (sec. 405): ``The law does
not require that the search should have been recent or made for the
purposes of the cause and therefore where a search was made among the
proper papers three years before the trial this was held sufficient.''
But in this case Galbraith's testimony (p. 28, record) is as follows:
``Q. Have you not been the principal deputy clerk of the court, and
as such having the entire control of the said office during your
occupancy?--A. I have, since July 26, 1873.''
This election was held November 2, 1874. This evidence was given
April 27, 1875. In answer, whether any of the tally sheets, returns,
ballot boxes, or other legal documents relating to the election had
been on file or were on deposit at that time in the clerk's office, he
says:
``There have been none, except the tally sheet handed me by the
commissioner for the other ward, which tally sheet was afterwards taken
out of my office and carried away.''
The next interrogatory propounded to the witness is to this effect:
``Q. Has diligent search been made for these ballot boxes by yourself
and others?--A. There has been.
``Q. Do you know where these ballot boxes and papers are?--A. I do
not.''
The minority regard it proven that proper search was made for the
returns, and that not being found it was proper to proceed to secondary
evidence. The minority produce the poll lists of the commissioners as
evidence of the act of voting, and this is primary evidence as to who
voted, the commissioners having duly certified the list. The minority
views continue:
There is no evidence contradicting this poll list, but it stands as
admitted evidence of the number of votes cast at this poll, which was
713. It is not contended by contestant that a single man upon this list
who voted was not a legally qualified elector, nor has any testimony
been adduced tending to prove that these 713 persons did not vote on
November 2, 1874, at poll No. 2, in Carroll Parish. We understand that
the elections are simply the method whereby the citizens of the country
may manifest their choice or preferences, and when they have proceeded
in accordance with law, and manifested through legal forms their choice
or preference by the ballot box, their right and privilege so to do
will not be taken away from them as long as their preference or choice
can be ascertained. Did these 713 electors, at poll 2, Carroll Parish,
November 2, 1874, in accordance with law, express their choice or
preference? Secondly, can that choice or preference be ascertained by
the evidence before us? The law governing this subject, as laid down by
all writers, is ``that to set aside the returns of an election is one
thing; to set aside the election itself is another and a very different
thing. The returns from a given precinct being set aside, the duty
still remains to let the election stand. The return is only to be set
aside, as we have seen, when it is so tainted with fraud or with the
misconduct of the election officers that the truth can not be adduced
from it. The election is only to be set aside when it is impossible,
from any evidence within reach, to ascertain the true result; when
neither from the returns nor from other proof, nor from all together,
can the truth be determined. It is important to keep this distinction
in mind.''
In support of this view the minority cite, from Brightley the cases
of Chadwick v. Meldin, and State v. Steers; from Brewster's reports the
case of Weaver v. Given; and of House cases Flanders v. Hahn, McHenry
v. Yeaman, Covode v. Foster, Blair v. Barrett, Barnes v. Adams.
Sec. 914
The minority then say:
As to the first proposition, viz: ``Did these 713 electors of Carroll
Parish, on November 2, 1874, express their choice or preference for
Member of Congress?'' the evidence of both contestant and contestee
proves that they did. There can be no dispute on this point. It
remains, then, to answer the second proposition, viz: ``Can that choice
or preference be ascertained from the evidence before us?'' And,
thirdly, was the election free and fair? Assuming that the evidence of
the commissioners and those employed in holding and conducting the
election is competent, we now proceed to present all the evidence, both
of contestant and contestee, as to the number of votes polled.
After citing testimony to show how the vote was divided, the minority
views continue:
By an examination of all the testimony introduced it will be observed
that all the evidence as to the actual vote cast at this poll, with the
exception of that of one witness, was introduced by contestee.
Montgomery, contestant's witness, swears that he signed all the papers
that he believed were necessary according to law. He swears positively
that he signed the poll list, heretofore commented upon, and nowhere is
this poll list contradicted. We, therefore, have the evidence
uncontradicted that 713 persons did vote at this poll. The highest
number of votes which contestant can possibly claim by the evidence is
65, which is sworn to by W. A. Blount, the United States supervisor at
that poll, who says that he took a memorandum of the vote for Spencer
at that poll, and that the vote was 65. This witness is contradicted by
three other witnesses, to wit, Benham, one of the commissioners, who
swears that he counted all the votes, says that Spencer's vote was 49
or 50; and is corroborated by W. B. Dickey, appointed by the
commissioners to keep the tallies (as Montgomery testifies), Dickey
swearing positively that Spencer received 49 votes at this poll; and B.
H. Lanier swears that Spencer's vote was 49 or 50. It certainly cannot
be claimed by contestant that he is entitled to any more votes than the
highest number that he has proven. Notwithstanding this witness, who
testifies that Spencer received 65 votes, is contradicted by three
other witnesses, we concede contestant 65 votes. Benham swears that
there were 4 blank votes cast. Adding the 4 blank votes to the 65 votes
conceded to Spencer, we have 69 votes to be deducted from 713, which
leaves the number sworn to and admitted by contestant's evidence, viz,
644, the lowest number which can possibly, from the evidence, be
counted for Morey. Contestant does not attempt to disprove that these
votes, 644, were cast for Morey.
The minority then examine the evidence as to the fairness of the
election of this ward, and find in favor of its fairness on the
question of fact.
The majority of the committee decline to count the vote of the
precinct, for the reason that ``there are no reliable data from which
the result can be ascertained.'' The majority regard the evidence as
showing that the commissioners at this poll failed to sign any returns
at all, a certain return presented before the board of State canvassers
being a forgery. The authenticity and regularity of the poll list is
admitted; and the majority say that the voters should be called to show
how they voted. As to the evidence relied on by the minority, the
majority say:
Although not differing very widely in their figures, no two of the
witnesses agree as to the number of votes cast or the number received
by each candidate. The uncertain memory of two or three witnesses as to
the result of an election six months after it took place cannot be
permitted to take the place of the testimony of the voters themselves,
and in this case, to the frailty of memory are added the uncertainty
and unreliability of the source from which the facts to be remembered
were derived. Montgomery says W. B. Dickey, M. A. Sweet, J. D.
Therrell, and S. T. Austin kept the tally list, by consent and request
of the commissioners, alternately, while keeping the lists to relieve
each other. The habit of officers of election in calling in unsworn
bystanders to keep tally lists, and thus virtually to count the vote
has been already alluded to and animadverted upon in considering the
vote at poll 5, Concordia Parish, and need not be here repeated.
Benham, who is contradicted in several essential particulars in the
testimony given in this cause, and who is shown to be the author of the
forged returns that were delivered to the State board, occupied the
important position of calling out the votes from the tickets to
Sec. 914
unsworn tally keepers, and it is from this source that Dickey and other
witnesses who speak of the result of the election get their
information. There are other objections made to the vote at this poll,
but as enough has already been stated to show that there are no
reliable data from which the result can be ascertained, it is deemed
unnecessary to further prolong the examination. The vote can not
therefore be counted.
(c) As to the third precinct the minority find no frauds or
irregularities, and the same general conditions as in preceding
precincts. The minority views say:
As to the vote cast, one of the commissioners, R. K. Anderson,
testifies that there were 550 votes cast in all. There were 7 votes
cast for Spencer for Member of Congress, and 2 blanks, the balance for
Morey. This evidence stands unimpeached. Spencer can not claim that he
received more than 7 votes. He nowhere attempts to contradict the
evidence of Anderson.
The majority decline to accept such testimony as conclusive, and hold
that the vote cannot be counted.
(d) The majority find the votes of the Fourth and Fifth wards
satisfactorily shown and count them.
In conclusion the majority find:
We have already seen that, excluding the contested territory, Spencer
had, by agreement of the parties, a majority of 1,396. The Fifth Ward
of Concordia Parish, and the First, Second, and Third wards of Carroll
Parish, being excluded by this report, that majority still stands, to
be affected only by the vote at the Fourth and Fifth wards of Carroll
Parish. Adding to the majority (1,396) with which Spencer entered the
contested territory, the majority of 12, which he received at the Fifth
Ward, would make his majority 1,408, from which is to be deducted 93
votes, the majority received by Morey at the Fourth Ward, thus electing
Spencer by a majority of 1,315 votes.
The committee therefore recommend the adoption of the following
resolutions:
Resolved, That Frank Morey was not elected and is not entitled to a
seat in the House of Representatives of the Forty-fourth Congress from
the Fifth district of Louisiana.
Resolved, That William B. Spencer was elected and is entitled to a
seat in the House of Representatives of the Forty-fourth Congress from
the Fifth district of Louisiana.
Four of the minority favored resolutions confirming the title of
sitting Member, but Mr. John H. Baker, of Indiana, preferred that the
seat should be declared vacant. The minority views also contend for
declaring the seat vacant if it should be found that sitting Member was
not elected:
If the House, after having considered all the evidence in this case,
are willing to adopt the rule that a minority candidate can by some
frivolous pretext obtain a seat to which he is not entitled or elected
by rejecting the suffrages of electors after the election had been
fairly held, the votes counted, and the returns made, because these
votes and returns have been abstracted, they will place it in the power
of all malicious and evil-disposed persons to destroy the evidences of
an election, and by that means defeat the will of the majority. Nowhere
has Mr. Spencer introduced an iota of evidence tending to establish the
fact that on account of the irregularities mentioned in the evidence
was he deprived of a single vote, nor does he in his notice contend
that on account of these irregularities mentioned in his notice he
would have received a greater vote in the fifth precinct of Concordia
Parish or in Carroll Parish; but the entire evidence establishes the
fact that of the actual votes cast (and it is admitted by contestant)
Morey received a majority. It is further conceded by contestant that,
if the actual vote polled in the fifth precinct of Concordia Parish and
in Carroll Parish is counted, Morey unquestionably is elected.
Therefore, admitting that he (Spencer) is the minority candidate, we
contend that if the committee should arrive at the conclusion that the
fifth precinct of Concordia Parish and the whole of Carroll Parish are
to be rejected under the rule governing contested elections,
established by this House, the seat cannot be awarded to Mr. Spencer,
but the election will have to be remanded again to the people, and both
Morey's and Spencer's claims are to be rejected.
Sec. 915
The report was debated at length on May 24 and 31, 1876.\1\ On the
latter date Mr. George W. McCrary, of Iowa, proposed a resolution to
recommit the report with instructions that the poll of Concordia Parish
be counted, that the time for taking testimony be extended sixty days,
within which time testimony should be taken as to the election in the
first, second, and third precincts of Carroll Parish. This resolution
was disagreed to, yeas 76, nays 101.
The first resolution of the minority, declaring Mr. Spencer, the
contestant, not elected, was disagreed to, yeas 74, nays 99. The second
resolution of the minority, declaring sitting Member entitled to his
seat, was disagreed to without division.
Then the resolutions of the majority were agreed to without division,
and so the contestant was seated.
915. The election case of Fenn v. Bennett, from the Territory of
Idaho, in the Forty-fourth Congress.
The use of the prefix ``Hon.'' with the name of a candidate does not
justify rejection of the ballot.
The canvassing of votes by an illegal board, while important to
returning officers, does not prevent the House ascertaining the result
from precinct returns.
The vote is not vitiated by failure to observe a directory law as to
method of tabulation of returns.
On June 5, 1876,\2\ Mr. John F. House, of Tennessee, from the
Committee on Elections, submitted the report of the committee in the
case of Fenn v. Bennett, from the Territory of Idaho. Three questions
were involved in this report:
(1) The report says:
The reason alleged by the Territorial board of canvassers for
rejecting 246 votes for S. S. Fenn in the county of Oneida is that
there was the prefix ``Hon.'' to said votes. The sitting Member, at the
hearing, waived the objection to the counting of those votes from
Oneida County, and they are accordingly counted for the claimant.
(2) The report further says:
The returns from the county of Nez Perces were rejected by the
Territorial canvassers for the reason that the votes of the county were
canvassed under the law of 1864, which gave the canvassing of the votes
to the clerk of the county commissioners, and two county officers to be
selected by the clerk, and not under the act of 1869, which gives the
county commissioners jurisdiction to canvass the votes of the several
precincts of the county. Although the question as to the proper board
to canvass the precinct returns is a very important one for the
Territorial canvassers to consider, your committee do not regard it of
much importance in coming to a decision in this case, as the question
for the House to consider is, who, in fact, received the highest number
of votes, and the precinct returns are proved, which very clearly show
that the actual vote cast in this county was 423 for S. S. Fenn and 37
for T. W. Bennett; and although the Territorial canvassers acted
rightfully in rejecting the returns from this county, as they were not
canvassed by the county commissioners, your committee, from the
precinct returns, find that 423 were, in fact, given for S. S. Fenn,
and should now be counted for him, and 87 votes were, in fact, given
for T. W. Bennett, and should be counted for him.
(3) The report also says:
The vote of Idaho County was rejected on the ground that the returns
for the Delegate to Congress were not on a separate sheet of paper. The
law of the Territory * * * provides that the clerk of
-----------------------------------------------------------------------
\1\ Journal, pp. 1034-1037; Record, pp. 3294, 3423-3442.
\2\ First session Forty-fourth Congress, House Report No. 624; Smith,
p. 592; Rowell's Digest, p. 314.
Sec. 916
the county commissioners shall make an abstract of the votes for
Delegate to Congress on one sheet, the abstract of votes for members of
the legislative assembly on one sheet, and the abstract of votes for
district officers on one sheet, and the abstract of votes for county
and precinct officers on another sheet. The returns from this county
had all of the votes for the several officers voted for on the same
sheet; but your committee regard the law in this matter as merely
directory, and do not find that the vote is thereby vitiated, but count
the votes from this county for the parties for whom they were cast.
On June 23 \1\ the House, without debate or division, agreed to the
report, which seated the contestant on the finding that he had a
plurality of 105 votes.
916. The Massachusetts election case of Abbott v. Frost, in the
Forty-fourth Congress.
There being evidence raising a suspicion of fraud the House rejected
a return made in disregard of the requirements of law and by the hands
of unauthorized persons.
Discussion as to whether or not a law was directory or mandatory.
On June 10, 1876,\2\ Mr. Early F. Poppleton, of Ohio, from the
Committee on Elections, submitted the report of the majority of the
committee in the Massachusetts case of Abbott v. Frost. The sitting
Member was returned by an official majority of 210 votes.
In the debate Mr. Poppleton insisted mainly on one point in the case,
the rejection of the returns of the Fourth Ward of Chelsea. As sitting
Member received in that ward a majority of 470 votes it is evident that
this decision was decisive of the case.
The sixth specification of contestant's notice was:
Sixth. That the votes and check list, and the result of the counting
of the votes in Ward 4, in said city of Chelsea, at said election, were
not returned forthwith by the warden of said ward to the clerk of said
city of Chelsea by any constable in attendance at said election, or by
any ward officer, as required by law, and, in fact, were not returned
to said city clerk until the morning following the election.
The majority report thus states the requirements of the Massachusetts
law:
All the laws of the State of Massachusetts on this subject are
embraced in sections 40 to 43 of chapter 376 of acts of 1874, viz:
``Sec. 40. In all elections in cities, whether the same be for United
States, State, county, city, or ward officer, it shall be the duty of
the warden, or other presiding officers, to cause all ballots which
shall have been given in by the qualified voters of the ward in which
such election has been held, and after the same shall have been sorted,
counted, declared, and recorded, to be secured in an envelope, in open
ward meeting, and sealed with a seal provided for the purpose; and the
warden, clerk, and a majority of the inspectors of the ward shall
indorse upon the envelopes for what officer, and in what ward the
ballots have been received, the date of the election, and their
certificate that all the ballots given in by the voters of the ward,
and none other, are contained in said envelope.
``Sec. 41. The warden, or other presiding officer, shall forthwith
transmit the ballots, sealed as aforesaid, to the city clerk, by the
constable in attendance at said election, or by one of the ward
officers other than the clerk; and the clerk shall retain the custody
of the seal, and deliver the same, together with the records of the
ward and other documents, to his successor in office.''
Section 42 provides for the preservation of the ballots for a
specified time, and authorizes a recount of them by the board of
aldermen.
Section 43 provides for the preservation of the check lists.
-----------------------------------------------------------------------
\1\ Journal, p. 1142; Record, p. 4076.
\2\ First session Forty-fourth Congress, House Report No. 653; Smith,
p. 594; Rowell's Digest, p. 314.
Sec. 916
This statute seems to have been enacted the same year the election
took place, and, as is to be presumed, the object was to render more
certain and reliable the returns of the officers of elections generally
in the cities of the State, and no one can doubt for a single moment
that a strict observance of all of its provisions and directions would
render frauds, by tampering with the check lists and ballots after the
closing of the polls (a most convenient mode, and often resorted to for
the perpetration of the greatest frauds) almost impossible.
After quoting testimony the report summarizes thus:
This testimony, we think, clearly shows that very many of the
plainest and most important provisions of the law were recklessly
disregarded if not purposely disobeyed by the officers having in charge
said election. The votes of Ward 4 were not returned to the city clerk
forthwith, as was required by the law, but were, upon being sealed and
indorsed by the officials, placed in the hands of a police officer, an
official unknown to the election statute, and by him taken and placed
in the hands of a night watchman, away from the polling place, and at
an entirely different locality from the city clerk's office, he being a
person in no way authorized by the law to hold or have the custody of
the votes for a single moment, in whose possession they remained until
about 7 o'clock the next morning--a period of some seven hours--when
the votes again passed into the possession of the policeman, who,
accompanied by the clerk of the ward, which is strictly forbidden by
the statute, arrived at the office of the city clerk and deposited with
him the envelopes containing the votes, which were afterwards counted
by the board of aldermen, and by them certified as the vote of the
Fourth Ward, Chelsea, upon which the governor and council of the State
acted officially. We are clearly of the opinion that the provisions of
the statute, which have been so totally and unblushingly disregarded in
this case, are not merely formal and directory, but vital and
essential, in order to render the election fair and free from fraud, or
the suspicion of fraud; for we hold it to be the duty of election
officers to so conduct the election, and everything thereunto
appertaining, as to as carefully guard against suspicion of or
opportunity for fraud as fraud itself. Nothing short of this will
satisfy either the spirit or letter of a statute made and enacted to
protect and maintain the purity of elections, as was the unquestioned
purpose of the law under consideration.
This principle is most fully recognized in the case of Chaves v.
Clever (2 Bartlett, 467), and in the case of Gooding v. Wilson, decided
in the Forty-second Congress, it is held that no recount of votes
should be allowed unless the forms of the law for the preservation of
the ballots, etc., have been strictly followed. In this case, in order
to retain the vote of the Fourth Ward of Chelsea, it is necessary to
approve of a recount made by the board of aldermen some four days after
the day of election, and that, too, when there is no pretense that the
provisions of the law have been followed as to the management of the
votes, their legal custody, etc., during the night succeeding the
election.
Your committee are fully of the opinion that this ought not to be
done, and that we would be establishing a dangerous precedent, opening
the door wide to the perpetration of fraud, were we to give our
approval to a recount of votes under such circumstances. In this
opinion we are strongly supported by the authorities.
The majority report also finds that the evidence gives ``serious
reasons for suspecting that actual fraud was committed in favor of the
returned Member in this ward.'' After quoting testimony tending to show
that suspicion might be raised by the delay of the returns, the report
says:
When the votes and returns are out of the legal and proper custody,
it must be proven that while illegally held they were not tampered
with. Notwithstanding this well-recognized rule of law, Daniels, the
night watchman in whose custody the votes and check lists were during
the night after the election, is not called, and no reason is assigned
for the omission to call him. He, of all other persons, best knew
whether the clerk or any other person or persons meddled with the
votes, or opened the bundle, or had anything to do with them during his
illegal custody. Neither was the warden, whose duty it was to seal up
the ballots, called, nor either of the three inspectors; and we are
therefore left to guess as to the extent of their information and
knowledge of the subject under examination. There being no proof
aliunde of the vote at Ward 4, Chelsea, your committee is of opinion
that the entire vote must be excluded from the count.
Sec. 917
The minority views, presented by Mr. John H. Baker, of Indiana, after
examining the testimony, say:
The most that can be claimed for this testimony is that it tends to
prove that the ballots and check list were not returned so promptly as
they might have been, and that they were brought by a police officer to
the office of the city clerk, instead of by a constable. The provisions
of the statute above quoted must be construed as directory under the
precedents of this House and the decisions of the courts. A slight
delay in the return of the ballots and check list, or their being
carried by a police officer instead of a constable, would not of itself
vitiate the poll. The returns of the election appear to have been
constantly in the custody of the clerk of the election, their rightful
custodian, from the time they were made out until they were delivered
to the city clerk. No suspicion is cast upon the returns, and we have
them before us. They corroborate the testimony of the witness, Bassett,
in proving that the packages containing the ballots and check list had
not been tampered with. On a recount they agreed with the returns.
The testimony of the witnesses examined by the contestee, James A.
Dinning and Jeremiah Norris, fully establish the fact that the ballots,
check list, and returns were not tampered with, and that they were
delivered to the city clerk in the identical condition in which they
left the hands of the officers who held the election, and without
unnecessary delay.
In the debate Mr. Baker urged that the returns were in the custody of
an officer ``invested with the power and authority'' of a constable,
but gave no authority in support thereof.
917. The case of Abbott v. Frost, continued.
Unnecessary employment of men in a navy-yard preceding election, some
on recommendation of a candidate, was held a condition on which to
predicate a rejection of votes for bribery.
Employment for the purpose of controlling a vote, such object being
known and acquiesced in by the voter, throws on the party naturally
profiting the onus of proving that the vote was not influenced.
If an elector enters into an express or implied agreement as to his
vote, the presumption is created that he votes in accordance with the
agreement.
Discussion of the evidence required to prove charges of bribery.
A specification in notice of contest defective in specifying the
number of illegal votes and where they were cast was, nevertheless,
regarded.
Certain other questions were discussed and determined, although
apparently not vital if the rejection of the Chelsea vote should be
sustained.
(1) As to alleged bribery the report of the majority says:
The third specification charges ``That many votes were cast and
counted at said election for you in said Fourth Congressional district
by persons who were induced to cast said votes by paying, giving, and
bestowing upon such voters gifts and rewards, and by promising to pay,
give, and bestow to and upon such voters gifts and rewards.'' All of
which is denied by the contestee. The statutes relating to the offense
charged in this specification are as follows:
``Whoever, by bribery, or threatening to discharge from his
employment, or to reduce the wages of, or by a promise to give
employment or higher wages to a person, attempts to influence a
qualified voter to give or withhold his vote in an election, shall be
punished by a fine not exceeding three hundred dollars, or by
imprisonment in the county jail or house of correction for a term not
exceeding one year, or both, at the discretion of the court.'' (Mass.
Gen. St., ch. 7, see. 31.)
``If any person shall pay, give, or bestow, or directly or indirectly
promise, any gift or reward to secure the vote or ballot of any person
for any officer to be voted for at any national, State, or municipal
election, the person so offending, upon conviction before the court
having jurisdiction of such offense, shall be punished by a fine of not
less than fifty nor more than one thousand dollars, or by imprisonment
in the
Sec. 917
house of correction not less than sixty days nor more than six months,
or by both, at the discretion of the court.'' (Mass. Acts, 1874, ch.
356, sec. 2.)
The charges in this specification relate to the giving of employment
to a large number of voters in the United States navy-yard at Boston,
formerly Charlestown, for the purpose of inducing them to vote for the
sitting Member. The question is new and very important in its
character; it touches the very foundation stone of representative
government; of the free and uncontrolled exercise of the elective
franchise and the counting of votes influenced. by a consideration. The
rules of law which we think should govern in the consideration of this
case are embodied in the following declarations:
1. If the giving of employment to the voters immediately prior to the
election was for the purpose of inducing them to vote for the
contestee, and such object was in any manner made known to the voter,
and he accepted or continued in such employment after obtaining such
information, he thereby became a party to the transaction, accepted its
terms, and the onus of showing that he did not carry it out in good
faith is on the contestee.
If it be shown that an elector enters into an agreement or
understanding, direct or indirect, for a consideration to vote a
specified party ticket or for a particular candidate, it is fair to
presume that he casts his ballot in accordance with such agreement or
understanding, and unless the contrary be made to appear such
presumption becomes conclusive.
Ballots thus obtained we hold to be illegal and ought to be
disregarded. To count them in the general canvass is to place them on
the same footing with the votes cast by the honest, free, and
independent voter. To seat a Member upon majorities obtained through
such influences is to defeat the very object for which the statute was
created.
The punishment of the briber and the bribed avails nothing toward
purifying the ballot box; the vote is there all the same, whether
punishment be inflicted or not, and if counted, the fraudulent and
corrupt purpose for which it was cast is obtained, and the candidate
thus securing success is foisted upon the country contrary to the
wishes of the legal electors of the district.
The only remedy against such illegal votes is to throw them out and
disregard them in the general count or canvass. The establishment of
any other rule would render it useless to contest the seat of a sitting
Member, even in the most flagrant cases of bribery.
The report cites in support of this view the following cases: Malcolm
v. Parry (Law Reports, 9 C. P., 610), King v. Isherwood (2 Kenyon,
202), Felton v. Easthorpe (Rogers' Law and Practice of Elections 221),
and continues:
The doctrine that the bribing of voters by the agent or those
managing or controlling the election in the interest of a candidate
will render his election void is clearly recognized in 3d Douglass,
Election Cases, page 157.
Admitting the foregoing propositions of law to be correct, the only
remaining question is, to determine whether the evidence is sufficient
to lead the mind to the conclusion that these electors, or any number
of them, were given employment for the purpose of influencing their
votes.
In a great majority of cases it is impossible to prove a charge of
bribery by direct and positive testimony.
From the very nature of the case the only sources from which such
testimony can come is from the briber and the bribed, both of whom are
criminals. Although in this case we must depend to some extent upon
circumstantial evidence, yet it is so strong in itself, so strengthened
and corroborated by declarations of confederates in the fraud, as to
exclude all other reasonable theories than that of guilt.
It is established by the evidence that immediately prior to the
election in 1874 an increase of more than 300 voters from the Fourth
Congressional district in Massachusetts was added to the force employed
in the navy-yard at Boston.
It is clearly shown, by the correspondence here inserted, that the
object of the Navy Department at Washington, and Hanscom, Chief of
Bureau of Construction, was to secure a sufficient number of votes to
insure the election of the sitting Member.
After quoting the letters, the report goes on:
It is evident from this extraordinary correspondence that the
Department at Washington knew of no proper or legitimate reason for the
increase, otherwise the inquiry of Hanscom, of date December 2, 1874,
as to the cause of the increase, would have been unnecessary. There can
be no doubt that the
Sec. 917
political influence of those high in authority was brought to bear to
cause the additional employment of men, and that the avowed purpose was
thereby to secure the election of the contestee.
It was made against the protest of the commandant at the navy-yard,
and every effort on his part to prevent this corrupt increase ``was
frustrated by some outside influence more powerful than his own.'' It
must be observed that the source from which this influence emanated was
the honorable Secretary of the Navy and the Chief of the Bureau of
Construction.
Again, it appears that the committeemen and managers of the election
in Boston entered heartily into the conspiracy, and exerted all their
influence in soliciting and recommending men for employment in the
navy-yard, the sitting Member himself recommending a large proportion.
In fact, with one or two exceptions, all the persons recommending men
for employment were active politicians, who, during the campaign,
worked earnestly for the election of the contestee.
The report then quotes correspondence and evidence to show that
political managers of sitting Member's party were active in
recommending men for employment; that the increase of force began
immediately prior to the election; that more men were employed than
there was work for; that a reduction began the day after election; that
an enlisted man of the navy was active in distributing tickets to
employees at the polls; that the check lists showed that the employees
voted; and concludes that 300 votes should be deducted from sitting
Member's poll, saying:
From all the testimony in this case, the committee are forced
irresistibly to the conclusion that employment was given to those men
as part consideration and that they entered into and accepted such
employment with the full understanding that they were to vote for the
contestee, and, by the application of the rules of law heretofore laid
down, the votes of all such must be disregarded.
It is a species of bribery. If tolerated and encouraged, strikes at
the foundation of republican government and poisons the very sources
from whence all legitimate authority flows. No system of government can
long endure where public opinion tolerates such conduct. Its general
prevalence must lead to anarchy and bloodshed and loosen the very
ligaments binding society together. It strikes a fatal blow at the
social compact. It overturns all just distinctions between honesty and
corruption in the delegation of authority to the representatives of the
people.
The minority assail the majority's conclusions in two ways:
(a) On the pleadings:
The only portion of the notice of contest under which any question
can arise as to the vote of the employees in the navy-yard is the third
specification. It is in these words:
``Third. That many votes were cast and counted at said election for
you (the returned Member) in said Fourth Congressional district by
persons who were induced to cast said votes by paying, giving, and
bestowing upon such voters gifts and rewards, and by promising to pay,
give, and bestow to and upon such voters gifts and rewards.''
The act of Congress to prescribe the mode of obtaining evidence in
cases of contested elections provides, among other things, that the
contestant shall, ``within thirty days after said election, give notice
in writing to the Member whose seat he intends to contest, and in such
notice shall specify particularly the grounds on which he relies in
such contest.'' Much discussion has arisen as to what is to be
understood by the words, ``shall specify particularly the grounds of
contest on which he relies.'' It may be doubted whether any definition
can be formulated which will accurately fix the limits of these words
so as to determine by such definition whether the ground of contest is
in substantial conformity to the statute or not. It is evident that it
was the purpose of the framers of the law to require the averments in
the notice of contest to be as certain and definite as the facts of the
case would permit. The notice ought to be sufficiently specific as to
the time, place, and nature of the charge, to put the returned Member
on notice and enable him to prepare his defense and thus prevent any
surprise.
In Amer. Law of Elec., section 344, it is said:
``It seems settled by the decisions of the House of Representatives
that a notice is good under the law if it specify the number of illegal
votes polled, for whom polled, when and where polled, without
Sec. 917
specifying the names of the illegal voters. (Wright v. Fuller, I
Bartlett, 152; Vallandigham v. Campbell, 1 Bartlett, 223; Ottero v.
Gallegos, 1 Bartlett, 177.)''
This author declares that it is settled as the law of this House that
such notice must at least specify the following facts to be good:
1. The number of illegal votes polled.
2. For whom they were polled.
3. When and where they were polled.
(a) The notice in this case does not specify the number of votes
which were procured by paying, giving, and bestowing gifts and rewards
upon such voters. It simply alleges that ``many votes were cast and
counted'' which were thus procured. ``Such an allegation may mean 5 or
10, or 20, or 500; it is uncertain and not particular. This point was
expressly ruled in the case of Lelar, sheriff of Philadelphia, in 1846.
The courts say they will require of the party complaining of illegal
votes to state the number, for instance, thus: 20 voted under age; 15
voted who were unnaturalized foreigners; 10 who were nonresidents, etc.
This particularity the courts of Pennsylvania say they will require,
because otherwise they would be converted into a mere election board
for the purpose of counting disputed ballots. They do not require the
names of the illegal voters to be given.'' (See Wright v. Fuller,
supra, p. 161.) We think no reputable lawyer will be found who will
contend that the averment ``that many votes were cast'' is sufficient
to raise any issue. The authorities, it is believed, are all one way.
As well contend that a declaration by A alleging that B owed him ``many
dollars'' would be good. Such averments are always treated as nugatory.
In this case we can treat it as a ``sufficiently particular statement''
only by overruling the statute and running against the current of all
the authorities.
As to the second point, the allegation as to ``whom they were
polled'' is admitted to be sufficient; but as to ``when and where they
were polled'' the notice was criticised as defective as to the place,
since not one of the 13 voting precincts of the district was specified
particularly as the place.
The insufficiency of the notice is dwelt on at length. The sitting
Member could not obtain from it the information needed for his defense.
The parties might not waive objection to this defect, since the
returned Member could not waive the rights the people have in the
contest; nor could the House, with due regard to the public interests,
permit a contestant to disregard utterly a plain requirement of law so
necessary to a proper trial.
The majority of the committee, while not specifically, meeting this
question, disregarded it by sustaining the objections of the
contestant.
(b) As to the question of bribery, the minority say:
The statute of this Commonwealth touching bribery is as follows:
``If any person shall pay, give, or bestow, or directly or indirectly
promise, any gift or reward to secure the vote or ballot of any person
for any officer to be voted for at any national, State, or municipal
election, the person so offending, upon conviction before the court
having jurisdiction of such offense, shall be punished by a fine of not
less than fifty nor more than one thousand dollars, or by imprisonment
in the house of correction not less than sixty days nor more than six
months, or by both, at the discretion of the court.'' (Mass. Acts,
1874, chap. 356, sec. 2.)
The rule is well settled that penal statutes are to be strictly
construed. This statute neither disqualifies the voter to vote nor the
person voted for to hold the office, even if convicted of bribery in a
judicial tribunal. The supreme court of Pennsylvania, in Commonwealth
v. Shaver (3 Watts. & Serg., 338), thoroughly examined the question of
bribery by a candidate as affecting his qualification to hold office.
Their unanimous judgment was: ``That the trial and conviction of a
sheriff of the offense of bribing a voter, previously to his election
to the office, does not constitutionally disqualify him from exercising
the duties thereof.''
We believe the true rule is this: Where a voter is shown to have been
bribed by a candidate, or by a duly authorized agent, to vote for him,
and he has so voted, that such vote ought to be struck from the ballots
cast for such candidate.
Sec. 918
The minority then quote at length the English case ``In re Boston
Election Petition, Malcolm v. Parry Law Reports, 9 C., p. 610), and
concludes:
The only ground upon which the charge of bribery rests is that Mr.
Frost and his political friends gave recommendations to a number of
voters, asking the proper officers in the navy-yard to give such
persons labor. It appears that persons who were not voters were
employed. No questions were asked and no conditions imposed on the
persons who entered the service. It is abundantly proven that no
influence, no inducement, no suggestion, even, was held out by Mr.
Frost or any other person to affect or influence any elector in giving
his vote. If any elector had been influenced, coerced, or even a
suggestion had been made to him as to his vote, the contestant could
have shown it. The law required him to prove it. The fact that he did
not venture to enter upon this line of proof clearly shows that he knew
it would prove unavailing, because his charge was untrue. He fails to
show that one solitary elector from the force employed in the navy-yard
was improperly or illegally induced or influenced to vote for Mr.
Frost. He fails to show that a single person from that force cast an
illegal ballot for the returned Member. No man's opinion or vote is
shown to have been changed or influenced by the circumstance of his
employment in that yard. There is not one word of evidence in the
record to show that of that increased force a single man actually voted
for Mr. Frost. The probabilities are that the most of the applicants
for labor belonged to the party who had the labor in its gift. This
presumption runs into every department of the Government. The
contestant is the last man to object to the application of that
standard canon of the Democratic confession of faith: ``To the victors
belong the spoils.'' We admit that the maxim is odious in principle and
demoralizing in practice. But who ever before seriously contended that
a voter who asked the influence of a Member or candidate for Congress
to aid him in obtaining Government employment was thereby disqualified
to vote? Who ever before claimed that it came within the prohibition of
the statute of bribery? The fair presumption is that the employees of
the navy-yard were Republicans--were employed because they were
Republicans, and that they voted uninfluenced, according to their
convictions. We believe the law is undoubted that the contestant is
bound to show that in consequence of this increased force he lost votes
which he otherwise would have received, or that Mr. Frost received
votes which he otherwise would not have received. This he has not done
nor even attempted to do. A certain number of men, legal residents of
the Fourth Congressional district, were employed in the navy-yard
between the 1st of September and the day of the election. It is not
shown how these men voted. Nay, it is not shown that they voted at all.
It is shown that they were legal voters, and that no influence,
inducement, or dictation was used upon any voter; and it is not shown
that a single one of them voted contrary to his free and uninfluenced
convictions. The contestant does not prove that a single one of this
increased force in the navy-yard was bribed by Mr. Frost or anyone
acting on his behalf to vote for him. He does not prove that anyone of
this increased force in the navy-yard actually voted at all at that
election. He does not attempt to show how anyone of this increased
force in said navy-yard voted. He asks the House to infer that every
man of this increased force was bribed, because they were recommended
and employed by Republicans; that they voted, and that their votes were
cast for the returned Member. No rule of law can be found which will
justify the indulgence of such presumptions to disfranchise electors
otherwise duly qualified.
918. The case of Abbott v. Frost, continued.
In determining qualifications of voters the House follows the strict
letter of the law, and not local usage in disregard of law.
There being no doubt for whom votes were intended, the House did not
reject ballots bearing very imperfect names.
(2) The committee unanimously agreed that two votes cast for the
sitting Member in the town of Winthrop should be deducted as illegal.
The minority set forth their views at length on this point:
The contestant contests the legality of the votes cast by Charles A.
Stevens and Frank Tuckerman at the election in the town of Winthrop.
The law of Massachusetts (Stat. 1874, chap. 376, sec. 6) permits a
person who is not assessed on the 1st day of May of any year to be
assessed upon presenting to the
Sec. 918
assessors, on or before the 15th day of September, a written
application, containing a true statement of his taxables, and
satisfying them that he was on the 1st of May liable to be assessed in
the town in which he makes the application. The list of persons thus
assessed must, by the same statute, be deposited with the city or town
clerk on or before the 1st day of October. In order to be a legal voter
at any election, a person must, in addition to possessing the other
legal qualifications of an elector, have paid a poll tax, legally
assessed upon him, in the State within two years previous to the
election at which he claims to vote.
The right of these two men to vote was challenged on the grounds (1)
that they were not residents of the State and town where they offered
to vote, as required by law; (2) that they had not paid any poll tax
legally assessed upon them in the time and manner provided by law
within the two years next preceding the election at which they offered
to vote. They took the required oath and each was permitted to and did
vote for the returned Member. In our judgment there is no sufficient
evidence to overcome their declarations on oath, when challenged, that
they were residents of the town of Winthrop, so as to be eligible to
vote if otherwise qualified. They were young unmarried men. Their
residence was largely a matter of intention. It seems to us that there
is no evidence which rebuts their sworn declarations on the question of
residence.
The other question is one which involves no inquiry into intention.
Their application for assessment was made upon the 2d of November,
1874, and they were both assessed upon that day and not before. Their
names were put upon the list of voters when they presented themselves
to vote. To hold that such assessment and payment of poll tax were a
substantial compliance with the statute, would operate to defeat its
obvious purpose. It is suggested that these votes ought not to be
struck off, because they were allowed to vote in accordance with the
universal usage in that town, permitting persons to be assessed, pay
the tax, and vote, as these two men did. The sufficient answer is that
it is our duty to ascertain and apply the law as we find it. If the
usage exists and its wisdom commends it to the legislature of that
Commonwealth, it will doubtless be enacted into law. Then only can it
be successfully invoked as a rule for our decision. For this reason we
agree with the majority in striking off the votes of these two men.
(3) The full name and residence of sitting Member was ``Rufus S.
Frost, of Chelsea.'' Certain votes were offered bearing the names:
``Benjamin Frost, of Chelsea,'' ``Rufus S. Frost,'' ``Frost, of
Chelsea,'' ``Rufus S. Frost, of Boston,'' and ``R. S. Frost, of
Chelsea.'' The full name and residence of contestant was ``Josiah G.
Abbott, of Boston,'' and certain votes were cast for ``Judge Abbott,''
``Josiah G. Abbott,'' ``Josiah G. Abbott, of Chelsea,'' ``Abbott, of
Chelsea,'' ``P. G. Abbott,'' ``J. G. Abbott,'' ``Abbott,'' ``J. G.
Abbott, of Chelsea.'' The committee unanimously agreed that these
votes, which were relatively few and of no effect on the result, should
be counted for sitting Member and contestant, respectively.
The minority say:
It is admitted that Josiah G. Abbott, of Boston, and Rufus S. Frost,
of Chelsea, were the only persons who were candidates for election to
Congress in this district at the election held in November, 1874. There
can be no serious doubt that the votes above referred to were intended
to be cast for them. It was not claimed by either party on the argument
that those votes should be excluded from the count in settling the
contest in this case. We therefore agree with the majority of the
committee that the 23 votes above mentioned should be counted for
Josiah G. Abbott, of Boston, and the 8 votes above mentioned should be
counted for Rufus S. Frost, of Chelsea.
(4) The committee unanimously cast out fraudulent and illegal votes
cast for sitting Member in Ward 5, of Boston.
The majority of the committee found, as the results of the
application of the law which they contended for, that contestant had a
majority of 712 and presented resolutions giving to him the seat.
Sec. 919
On July 14 \1\ the report was debated in the House, and on that day a
substitute proposed by the minority confirming the title of sitting
Member to the seat was disagreed to, yeas 79, nays 102.
The resolutions of the majority, seating contestant, were then agreed
to without division.
919. The Louisiana election case of Breaux v. Darrall in the Forty-
fourth Congress.--On July 12, 1876,\2\ Mr. John T. Harris, of Virginia,
from the Committee on Elections, to whom was referred the contested-
election case of Breaux v. Darrall, of Louisiana, reported a resolution
declaring Mr. Darrall entitled to the seat. This was agreed to without
debate or division.
920. The South Carolina election case of Buttz v. Mackey in the
Forty-fourth Congress.
Gross frauds perpetrated in such a way as to show connivance of
election officers caused rejection of the returns of all the precincts
of a city.
One-third of the votes of a district being rejected, the House did
not seat contestant, but declared the seat vacant.
Both parties having proceeded under misapprehension of the law, the
evidence was admitted.
On July 13,1876,\3\ Mr. Charles P. Thompson, of Massachusetts, from
the Committee on Elections, submitted the report in the South Carolina
case of Buttz v. Mackey. The official returns gave sitting Member a
majority of 2,537. The report thus states the case:
The city of Charleston gave 10,404 votes, 7,976 of which were for the
contestee and 2,428 for the contestant, making a majority for the
contestee of 5,548. The contestant alleges in his notice of contest
that frauds were committed in most of the voting precincts of the city
of Charleston, and at the hearing before the committee he, without
objection, introduced evidence that frauds were committed in all of the
voting precincts of that city by the partisans of the contestee through
an organized system of repeating, and that persons entitled to vote and
desiring to vote for the contestant were prevented from voting for him
by violence and threats and induced to vote for the contestee; also
that a large number of persons, through bribery, were induced to vote
for the contestee, and that this was done with the approval of the
managers of the election. The contestee denies all the material
allegations of the contestant, and alleges that many of the allegations
are irrelevant and immaterial. Although there are allegations of
irregularities at other precincts than those in the city of Charleston,
your committee have not thought it necessary to consider them, as the
decision they have arrived at with reference to the vote of the city of
Charleston is conclusive of this case.
The evidence clearly shows that most gross frauds were perpetrated at
the voting precincts in the city of Charleston through repeating,
bribery, intimidation, and violence, and that the same were carried on
under such circumstances as to satisfy the committee that they must
have been done with the knowledge and assent of the officers of the
election.
This evidence showed that repeaters were taken from poll to poll and
voted in large numbers. After quoting from the testimony the report
says:
The whole evidence, of which the above is a fair specimen, clearly
shows the character of the election in the city of Charleston, and
must, we think, satisfy the House that such an election ought not to be
sanctioned or tolerated. To allow the returns from such voting
precincts to be canvassed is to encourage fraud and corruption, and
your committee have unanimously come to the conclusion that the whole
vote
-----------------------------------------------------------------------
\1\ Journal, pp. 1267-1270; Record, pp. 4589-4598.
\2\ First session Forty-fourth Congress, Journal, p. 1252; Record, p.
4516.
\3\ First session Forty-fourth Congress, House Report No. 758; Smith,
p. 683; Rowell's Digest, p. 320.
Sec. 921
of the city of Charleston must be rejected, as fraud was committed by,
or assented to by, the managers of the election as well as by other
parties, and it is impossible to ascertain how many legal votes were
cast. Your committee have had not a little difficulty in determining
what ought to be done under the circumstances of the case. The district
outside of the city of Charleston gives a large majority for the
contestant. Still we are of opinion that he ought not to be declared
elected, as it is impossible to determine who received a majority of
the legal votes of the district. And the votes of so large a proportion
of the district have been rejected and the people thereby disfranchised
that justice to the district requires that a new election shall be had
and an opportunity given the legal voters to hold an election to
determine who shall represent the district.
The total vote of the district was 30,965, and the vote of the city
of Charleston was 10,404.
A preliminary question as to evidence was thus determined:
The contestee claims that all the evidence taken by the contestant
after the 18th of February, 1875, should be stricken out, as the forty
days from the time of the serving of the answer of the contestee
expired on that day. It appears that both parties proceeded in
ignorance of the act of 1873 concerning contested elections, and the
contestant gave notice and took evidence under the law as it existed
prior to that date. And your committee are of opinion, as both parties
proceeded under a mutual misapprehension of the law, that neither ought
to take any advantage of the other on that account, but that the
evidence must be regarded as having been taken by mutual consent,
waiving the provisions of law, and that this rule will apply until one
party or the other declined to proceed under this arrangement. It
appears that no objection was made to this mode of proceeding until
March 1, 1875, during the taking of the evidence of one Henry P. Dart,
who appears to have been the first witness examined on that day. Your
committee have, therefore, not considered any of the evidence taken
subsequent to that of Dart's (p. 47). The contestee, although having
full opportunity to take evidence, declined to take any evidence, and
your committee are compelled to pass upon this case upon the evidence
of the contestant alone.
The committee recommended this resolution:
Resolved, That neither C. W. Buttz nor E. W. M. Mackey was lawfully
elected to the Forty-fourth Congress from the Second Congressional
district of South Carolina, nor is either of them entitled to a seat in
said Congress.
On July 19,\1\ after short debate, the House agreed to the resolution
without division.
921. The Virginia election case of Platt v. Goode, in the Forty-
fourth Congress.
Overruling its committee, the House declined to deduct
proportionately from the two candidates unidentified votes cast by
disqualified persons.
Contestant having neglected to show for whom votes impeached by him
were cast, they were deducted from his poll.
While State canvassers are justified in requiring returns to be
technically perfect, the House in judging final right looks rather to
the substance.
On July 17, 1876,\2\ Mr. William R. Brown, of Kansas, from the
Committee on Elections, submitted the report of a bare majority of the
committee in the Virginia case of Platt v. Goode. The official returns
had given the sitting Member a majority of 131 votes over contestant.
-----------------------------------------------------------------------
\1\ Journal, p. 1293; Record, pp. 4734-4742.
\2\ First session Forty-fourth Congress, House Report No. 762; Smith,
p. 650; Rowell's Digest, p. 318.
Sec. 921
A number of questions arose in the determination of this case:
(1) The returns from Prince George County were rejected by the State
board of canvassers because they lacked the attestation of the county
clerk. That is, the words ``Attest, Robert Gilliam, clerk,'' were
omitted.\1\ The majority report state the case, with copies of the full
returns, as follows:
The returns before the State board were as follows:
``Abstract of votes of the election held in the county of Prince
George, on the third day of November,
Gone thousand eight hundred and seventy-four, for a Representative
from the Second Congressional district of Virginia, in the Forty-fourth
Congress of the United States of America.
``James H. Platt, jr., received nine hundred and eighty-seven (987)
votes.
``John Goode, jr., received five hundred and sixty-two (562) votes.
``Given under our hands this fifth day of November, one thousand
eight hundred and seventy-four.
``B. J. Peebles,
``T. A. Leath,
``Wm. D. Temple,
``Charles T. Robertson,
``Commissioners.
``State of Virginia,
``County of Prince George, to wit:
``I, Robert Gilliam, sr., clerk of the county court of Prince George,
in the State of Virginia, do certify the foregoing to be a true copy of
the return of the election for a Representative from the Second
Congressional district of Virginia to the Forty-fourth Congress of the
United States.
``In testimony whereof I have hereto set my hand and affixed the seal
of the said court this 5th day of November, A. D. 1874, and in the
ninety-ninth year of the Independence of the United States.
``[seal.]
Ro. Gilliam, Sr., Clk.''
The statute of Virginia, after providing for a board of commissioners
to act as county canvassers, provides: ``The said commissioners shall
determine the persons who have received the greatest number of votes in
the county or corporation for the several offices voted for at such
election. Such determination shall be reduced to writing and signed by
said commissioners, and attested by the clerk, and shall be annexed to
the abstract of votes given to such officers, respectively. As soon as
the commissioners aforesaid shall have determined the persons who have
received the highest number of votesfor any office, the clerk shall
make out abstracts of the votes in the following manner: * * * which
abstracts, being certified and signed by such commissioners and
attested by the clerk, shall be deposited in the office of the latter,
and certified copies of abstracts, * * * under the official seal of
said clerk, shall be placed in separate envelopes * * * and forwarded
to the seat of government by mail.''
The abstract is a substantial compliance with the requirements of the
statute, and, except in lacking the formal attestation of the clerk, is
sufficient. And showing as it does that it was the act of the
commissioners, by the certificate of the clerk duly attached, it seems
to us an arbitrary and unjustifiable course for the State board of
canvassers to have rejected it merely because the same officer who had
certified to its correctness had failed to make assurance doubly sure
by attesting it.
The statute further provides: ``If from any county, city, or town no
such abstract of votes shall have been received within twelve days next
after any election by the secretary of the commonwealth, he shall
dispatch a special messenger to obtain a copy of the same from the
proper clerk.'' This he failed to do; and in spite of the fact that the
county seat of Prince George County is within three hours' ride of
Richmond, and in spite of the fact that Mr. Platt at the time presented
a duly attested abstract to them, the State board did not have a
messenger sent, and adjourn over till his return, but rejected the
abstract and gave Mr. Goode his certificate.
-----------------------------------------------------------------------
\1\ Record, p. 4872.
Sec. 922
The minority views, presented by Mr. J. S. C. Blackburn, of Kentucky,
uphold the action of the State canvassers, but do not insist that the
House should be bound by the results of the act:
The returns from the county of Prince George were fatally defective.
The law required that the returns should be certified by the board of
county commissioners and attested by the clerk under his official seal.
Neither of these requirements was complied with. We are of opinion that
the board of State canvassers acted properly in refusing to take notice
of what purported to be the returns from said county of Prince George,
as the law only required them, in fact only authorized them, to canvass
such returns as might be found in the office of the secretary of the
commonwealth, properly certified by the board of county commissioners,
their determination reduced to writing, and attested by the clerks of
the several counties with their official seal. It will not be necessary
to determine whether said board of State canvassers erred in refusing
to receive and canvass the amended returns from Prince George County.
We, in the exercise of the power belonging to the House of going behind
the action of all boards, State or county, and even behind the returns
of the election officers, are convinced that the returns from the
precincts of Bland and Rives, in the county of Prince George, should be
rejected.
The minority, whose views prevailed, counted all of this county
except the Bland and Rives precincts.
922. The case of Platt v. Goode, continued.
As to whether the House should count ballots illegally but not
fraudulently cast and properly rejected by the election officers.
As to whether an unnaturalized foreigner may be a de facto election
officer.
Question as to whether or not a law requiring returns to be
transmitted sealed should be considered mandatory or directory.
It is presumed that elections officers who are partisan of the
objecting party have not intentionally erred against his interest.
(2) In Nansemond County certain returns were rejected, as described
in the minority views:
As to the 206 votes cast for contestant in Nansemond County, and
rejected by board of county commissioners, 193 of them had printed upon
them the name of contestant and the words ``Against constitutional
amendments;'' 13 of said ballots had each a second ballot folded within
them, upon which were printed the words ``Against constitutional
amendments.'' Under the general election law of Virginia and the act of
assembly providing for the taking of the sense of the people upon the
constitutional amendments submitted for their ratification, it is clear
that such ballots were not cast as required by law. The county
commissioners for Nansemond County, in our judgment, did not err in
rejecting and refusing to count said ballots, which, under the law,
they were not permitted to receive; but we do not feel that this
committee or the House should be restricted to such a rigid observance
of the technical requirements of the statute as will do violence to the
equities involved. We therefore feel disposed to go behind the action
of the board of county commissioners of Nansemond County and allow to
contestant the 206 votes deducted from his count.
The majority report that the statutes of Virginia with regard to
casting of ballots were directory, and that the words ``deposit a
ticket or ballot'' as applied to the constitutional amendment did not
necessarily mean that the ballot must be separated from the general
ticket. The fact that 13 detached tickets on the constitutional
amendment were folded into tickets for Mr. Platt and voted in the same
box showed an evident mistake. The law did not require separate ballot
boxes and no claim was made that illegal votes were cast.
Sec. 922
(3) The majority report discusses Bland and Rives townships:
These two townships, in Prince George County, gave Mr. Platt 408
majority. The allegation of Mr. Goode in reference to them is as
follows:
``Seventh. I shall maintain and insist that the entire vote cast at
the precincts or voting places in Rives and Bland townships, in the
county of Prince George, should be rejected as illegal and void,
because the poll books and ballots at said precincts were not sealed
and were not returned to the clerk's office, as the law directs;
because, at the precinct in Bland Township, one John Palmer acted as
clerk of election, he being at the time a subject of Great Britain, and
not a naturalized citizen of the United States, and because a large
number of colored persons, at least one hundred, whose names are
unknown to me, were imported into the said townships in the said county
of Prince George from Petersburgh and other places in the adjoining
district, and allowed to deposit their ballots for you at the said
election, thus placing upon the polls at the said precincts such a
taint of illegality and fraud that the result can not be clearly
ascertained.''
In reference to the charges, except upon the point the poll books and
ballots were not sealed, the evidence is totally insufficient. Even if
it were true that John Palmer was a foreigner and unnaturalized, it
could make no difference, as we have always decided. If not de jure he
was a de facto officer, and his acts valid. C. T. Robinson, a judge of
election in Rives Township, a Conservative, testifies that the election
was fairly, faithfully, and honestly conducted, and that to his
knowledge no man was allowed to vote who was not entitled to. Robert B.
Batte, one of the Conservative judges in Bland Township, says that the
judges of election did their duty as far as they could. Robert E.
Bland, who was at Bland Township, swears that he does not think the
election was conducted as the law directs, but saw nothing that looked
like corruption, criminality, and bad intent. One man voted illegally
in Bland Township and one in Rives, and this is the whole testimony.
The poll books and ballots were returned unsealed, and this is the only
irregularity we need to consider.
The report further says:
The evidence shows that five out of the six judges of election in
these two precincts were Democrats. Both judges who carried in the
returns were Democrats, and the county clerk to whom they were
delivered was a Democrat; and it will be noticed that in his brief the
sitting Member claims no irregularity, except that ``several colored
persons'' illegally voted, and this leaves but the one question, Was
the failure to seal the poll book and ballots fatal? Mr. Goode
correctly quotes the law in his brief above quoted, and it will be
noticed that no negative words are used making the election invalid
unless the judges sealed the returns.
The report quotes McCrary's Law of Elections at length in support of
this view, and declares that there is neither proof nor suspicion of
fraud. The election officers were partisans of Mr. Goode, and the
report says:
In the case of Farwell v. Le Moyne the majority of the committee went
to the length of deciding that where fraud is proved it must be
presumed as having been committed in favor of the party controlling the
polls. We still hold to the doctrine to the length that the presumption
is that Democrats will not intentionally commit frauds to help
Republican , nor vice versa.
The minority views take issue as to the poll of these precincts:
The statute of Virginia requires that one of the poll books of
election shall be put under cover and seal and sent to the county or
corporation court clerk, together with the ballots, inclosed and
sealed. There can be no question as to the mandatory character of this
statute. Its object is to prevent fraud in tampering with the ballots
or alteration of returns. In these two precincts the law in this regard
was wholly ignored and violated. The rule laid down and supported by a
number of adjudicated cases and applied in several instances by this
House does not require that positive proof shall be adduced showing
that the ballots have been tampered with. It is sufficient to show that
opportunity for such tampering has been afforded. The burden of proving
that this has not been done devolves upon the party insisting upon the
count. We can not but conclude, in the light of the testimony, under
theapplication of the law, as stated, that the vote of Bland and Rives
townships, in the county of Prince George, should be rejected.
Sec. 923
In the debate, however, Mr. J. Randolph Tucker, of Virginia, speaking
in favor of sitting Member, Mr. Goode, said as to these two precincts,
``We yield all claim to them, and based his argument on other features
of the case.'' \1\
923. the case of Platt v. Goode, continued.
Bribed votes being given, but their separation being impossible, the
whole poll was rejected.
Employment for the purpose of controlling a vote, such object being
knowingly acquiesced in by the voter, throws on the party naturally
profiting the onus of proving that the vote was not influenced.
If an elector enters into an express or implied agreement as to his
vote, the presumption is created that he votes in accordance with the
agreement.
(4) A question as to votes cast by persons alleged to have been
illegally registered, and the method of purging the poll of such votes,
were discussed by the majority, and the rule set out in the case of
Finley v. Walls, that in the absence of fraud the illegal votes were to
be divided proportionately between the candidates in accordance with
the vote received by each, was approved:
The statute of Virginia provides for registration of voters as
follows: ``Ten days previous to the November election the registrar
shall sit one day for the purpose of amending and correcting the
lists.'' And this is the last time provided by statute for registering
prior to an election, and registration is prerequisite to having a
right to vote. The evidence shows illegal registration and voting in
several precincts, as follows: At Sussex Court-House Township, in
Sussex County, 13. Here the vote stood, Platt 293, Goode 83, which,
dividing proportionately, makes the vote stand Goode 3, Platt 10. At
Stony Creek precinct 26 persons registered and voted for the first time
on the day of the election. The statute provides--
``Whenever a voter changes his place of residence from one voting
precinct to another, it shall be lawful for him to apply for in person
or in writing, and it shall be the duty of the registrar of his former
voting district at any time, whether it be in a township, ward, or
voting place, to furnish a certificate that he was duly registered, and
that his name has since his removal been erased from the registration
books of said voting district, which shall be sufficient evidence to
entitle him to register; and the name of every such person shall be
entered upon the registration book of the township, ward, or voting
precinct to which he has removed, by the registrar at any time, or by
one of the judges on the day of election: Provided, That in cities or
towns containing over 2,000 inhabitants the name of such person shall
only be entered by the registrar on the days provided in the ninth
section of this chapter.''
The evidence shows that 25 of these 26 voters were registered on the
day of election on transfers, as provided in this section, and that the
judges were satisfied that they had resided in the election district
three months. We find, therefore, that but one of these votes was
illegal, which we subtract from Mr. Platt.
In Jamestown Township, James City County, 16 illegal votes were cast.
The vote stood, Platt 136, Goode 78; dividing in the same proportion
gives Platt 10, Goode 6. In Bruton Township 3 illegal votes are proved.
The vote stood, Platt 203, Goode 88; and dividing in the same
proportion gives Platt 2, Goode 1. In Guilford Township the evidence
shows that about 20 persons illegally registered the Saturday before
election. Eight only are identified by the witness, and these 8 voted
and were illegal voters. Because a man illegally registers on the
Saturday before an election is no evidence that he voted on the Tuesday
following; hence, we can only consider 8 as illegal. The vote stood,
Platt 265, Goode 189; and divided in same proportion gives Platt 5,
Goode 3. In Nelson Township, York County, 15 illegal votes were cast.
The vote stood, Goode 49, Platt 160, Norton 189; dividing in same
proportion the illegal votes would stand, Platt 2, Goode 6, Norton 7.
Six illegal votes are also proved in different
-----------------------------------------------------------------------
\1\ Record, p. 4900.
Sec. 923
townships, one or two in a place; being unable to divide, as in most if
not all of the precincts Mr. Platt got more votes than Mr. Goode, we
subtract all from Mr. Platt, which would make the illegal vote stand,
Platt 40, Goode 15.
This conclusion of the majority is combatted by the minority:
Under the law of Virginia no man is a legal voter who has not been
duly registered, and such registration must be had ten days before the
election. The testimony shows that at all the precincts named persons
were registered on the day of election, or within the ten days next
preceding the election. There can be no doubt of the validity of a
statute requiring the registration of voters. McCrary says (American
Law of Elections, p. 12):
``It being conceded that the power to enact a registry law is within
the power to regulate the exercise of the elective franchise and
preserve the purity of the ballot, it follows that an election held in
disregard of the provisions of a registry law must be held void.''
This rule has been repeatedly applied by this House. (See Howard v.
Cooper, Contested Election Cases, p. 275; also, Reed v. Julian, p. 822;
Myers v. Moffitt, p. 564, and many others.) It is not to be objected
that the honest voter should not be disfranchised by reason of the
mistakes or misconduct of election officers. Every candidate has the
right to bring forward and prove the legality of every vote cast at a
precinct which has been appealed.
At Sussex Court-House Township precinct there were 13 illegal votes
cast--8 white and 5 colored. At Stony Creek Township there were 18
illegal votes cast--2 white and 16 colored. At Jamestown Township, in
James City County, there were 16 illegal votes cast--1 white and 15
colored. At Guilford Township precinct, in Surry County, there were
about 20 illegal votes cast, principally colored. At Nelson Township
precinct, in York County, there were 15 illegal votes cast--2 white and
13 colored. At Bruton Township precinct, in York County, there were 2
illegal votes cast. At Rives Township, in Prince George County, there
was 1 illegal vote cast--colored. At Bland Township, in Prince George
County, there was 1 illegal vote cast--colored--exclusive of those
voting at Bland and Rives precincts brought from other precincts and
other counties, of which several are proven in the record. At
Blackwater Township, in Prince George County, there was 1 illegal vote
cast--colored. At Sherman's Cross-Roads precinct, in Prince George
County, there was 1 illegal vote cast--colored. At Brandon Township
precinct, in Prince George County, there was 1 illegal vote cast--
colored. At Suffolk precinct, in Nansemond County, there were 2 illegal
votes cast--both colored-making an aggregate, at all the precincts
named, of 90 illegal votes. What is to be done with these illegal and
fraudulent votes?
The rule in certain cases is to divide the fraudulent or illegal
votes between the candidates in proportion to the whole vote received
by each; but on page 225, American Law of Elections, it is held:
``Let it be understood that we are here referring to a case where it
is found to be impossible, by the use of due diligence, to show for
whom the illegal votes were cast. If in any given case it be shown that
the proof was within the reach of the party whose duty it was to
produce it, and that he neglected to produce it, then he may well be
held answerable for his neglect, and because it was his duty to show
for whom the illegal votes were cast, and because he might, by the use
of reasonable diligence, have made this showing, it may very properly
be said that he should himself suffer the loss occasioned by deducting
them from his own vote.''
We see no reason why this fair and well-established rule should not
be applied in this case. Contestant had the opportunity to make this
proof and failed to do so or to attempt it. The eighty days allowed
both contestant and contestee for taking testimony in chief had expired
before these illegal and fraudulent votes were discovered to be upon
the several polls; but, after such discovery, contestant then had by
law ten days in which to take testimony in rebuttal. These polls and
the legality of the votes cast thereat having been put in issue by the
answer of contestee, such testimony might have been competent; at any
rate, the contestant might have relieved himself of the burden of proof
imposed by the law by an effort in these remaining ten days of his time
to show for whom these illegal votes were given.
It clearly appears from the record that, should this rule be not
applied, but these illegal votes deducted from both candidates in
proportion to the whole number of votes received by each at the several
polls, the majority of contestee would be still further increased
beyond the final summary hereafter given; but as such action would not
change or affect the final result of the contest, we do not deem it
necessary to state the exact number to be taken from each.
Sec. 923
In debate \1\ Mr. Tucker argued against the rule proposed by the
majority of the committee, saying:
The question is how those illegal votes which are found in the ballot
box, without its being known for which candidate they were cast, are to
be disposed of. And I would say that at these several precincts the
evidence shows, in the aggregate, that Mr. Platt gets a majority of
some 400 to 600.
After quoting the passage of McCrary cited by the minority, he
contended that the onus was on contestant to show that the 92 illegal
votes did not go to constitute his majority of 500, and as he had not
proven this they should be stricken from his majority. To use the
proportionate rule was merely guessing at the result. The rule was
arbitrary and not founded on reason. It appeared further on that Mr.
Tucker was influenced by the fact that the proportionate rule would
require the assumption that a certain number of colored voters had cast
their ballots for Mr. Goode, an assumption which in this case he seemed
to consider against reason. Mr. Tucker held that the disposition of the
92 illegal votes in the way advocated by him showed the election of Mr.
Goode, and was really decisive.
(5) Certain charges of corruption were made as to the use of navy-
yard influence at Norfolk in behalf of contestant. The majority report
of the committee did not consider that the exclusion of three affected
precincts, where contestant's majority was 441, could overcome the
majority which they found him entitled to in the district, and so did
not enter fully into the discussion. The majority report says:
The evidence is vague and indefinite. No effort was made by the
sitting Member to particularize. He acted in reference to this matter
as in reference to others, that where illegal votes are proved, be they
few or many, the effect was to vitiate the whole election, and he
endeavors, both in his proof and argument, to make us determine that
some illegal votes were cast, so that we may exclude the returns of
entire precincts. We believe that bribery can be committed in the
employment of voters in a navy-yard, but the mere fact of employment
alone does not prove bribery. If employment is given to make men vote
contrary to what they would do, it would be bribery, but there must be
proof, first, that men were employed in order to cause them to change
their politics, and, second, that they voted and voted in favor of the
party giving the employment. The presumption is in public service that
Republicans employ Republicans, that Democrats employ Democrats. The
presumption is almost conclusive that men obtaining employment in
places controlled by Democrats are Democrats and in places controlled
by Republicans are Republicans, and the employment does not change
their politics. If any presumption arises when a man obtains employment
in a navy-yard it is that he is a Republican, and if that be so, the
employment does not affect either his vote or the result. Here the
employment is the whole evidence of bribery, and is extremely weak--
only a link in the chain to prove the charge. Our duty is to act on
evidence, not on surmises; to seek fixed data, not make wild guesses,
and hence we decline to throw out any portion of the navy-yard vote.
Two members of the committee, who sustained generally the majority
report, Messrs. Charles P. Thompson and John F. House, dissented from
the conclusion as to the navy-yard precincts and believed they should
be rejected. Thus an actual majority of the committee were against the
report in this particular.
The minority views found that large numbers of men had been employed
in the yard for partisan purposes, on condition that they should vote
the ticket of contestant's party, and that espionage was resorted to to
make sure that the employees voted in accordance with the arrangement.
The minority views contend that the presumption was that the voter
complied with his obligation and executed his contract by giving his
vote as promised. The onus of proving the contrary
-----------------------------------------------------------------------
\1\ Record, p. 4900.
Sec. 924
rested on the contestant in this case, as it was in his interest that
the acts were done. Therefore the minority views (and evidently a
majority of the committee actually sustained them) hold:
These bribed votes should not be counted. The record furnishes no
method for their elimination. Their acceptance can only be avoided by
applying the rule of law, so well known and of such general adoption
that it need scarcely be repeated here, that when illegal or fraudulent
votes have been proven, and the poll can not be purged with reasonable
certainty, the whole vote must be rejected. Such, we think, is the case
in these three precincts, viz, Third and Fourth wards of Portsmouth,
and Hall's Corner precinct, in Norfolk County.
The majority report counted the Prince George vote, added 200
Nansemond votes and 12 Norfolk votes for Platt, and deducted from him
40 illegal votes and 15 illegal votes from Goode. This left a majority
of 487 for Platt in the district.
Therefore the majority reported resolutions giving the seat to
contestant.
The two dissenters from the majority report subtracted the navy-yard
precincts and also 64 illegal votes from Platt and 29 from Norton,
leaving Platt a plurality of 24 in the district.
The minority views added the Prince George and Nansemond votes, but
excluded Rives and Bland precincts, and rejected the navy-yard
precincts. This gave sitting Member 349 majority. This summary ``waived
the question of illegal voting by reason of fraudulent or unlawful
registration,'' on which Mr. Tucker had laid so much stress, and
rejected the Bland and Rives precincts, which he had waived. The
minority views conclude that Mr. Goode is entitled to his seat.
The case was debated at length on July 25, 26, and 28,\1\ and on the
last day the minority resolution was substituted for the majority
proposition by a vote of yeas 105, nays 98. The majority resolutions as
amended were then agreed to, yeas 107, nays 95. So the majority of the
committee were overruled and the sitting Member retained the seat.
924. The Louisiana election case of Acklen v. Darrall in the Forty-
fifth Congress.
The House, respecting a written agreement of the parties, counted a
return which State canvassers had rejected as forged.
Form of agreement between parties in an election case as to counting
certain votes.
A poll unauthorized by law, taken at a place different from the
legally appointed place under control of partisan officers, was
rejected.
A recount honestly made of ballots preserved inviolate is valid,
although circumstances rendered impossible a technical compliance with
law.
Instance wherein the House in an election case accepted its own
historic knowledge in lieu of evidence.
An honest recount of ballots kept inviolate was sustained, although
the authority which ordered it was questioned.
At the organization of the House on October 15, 1877,\2\ the name of
Mr. C. B. Darrall, of Louisiana, was on the roll of Members-elect
presented by the Clerk.
-----------------------------------------------------------------------
\1\ Journal, pp. 1343-1345; Record, pp. 4871, 4879, 4887, 4900, 4931-
4938.
\2\ First session Forty-fifth Congress, Journal, p. 20.
Sec. 924
When Mr. Darrall was about to take the oath, he was challenged; but in
October 16 the House voted that he be sworn in and that the credentials
and papers of J. H. Acklen, a contestant, be referred to the Committee
on Elections.
On February 8, 1878,\1\ Mr. John T. Harris, of Virginia, from the
committee, presented the report in the case of Acklen v. Darrall.
The preliminary facts as to this election are thus set forth in
minority views submitted by Mr. Hiram Price, of Iowa:
On the 7th day of November, 1876, an election was held in this
Congressional district for a Member of the Forty-fifth Congress, and
after the election, and after the votes at the polls at all the
parishes had been counted by the legally authorized officers, and the
returns made as required by law, the following certificate of election
was issued:
``State of Louisiana, Executive Department,
``Third District of Louisiana, New Orleans, December 28, 1876.
``Be it known that at an election begun and held on the 7th day of
November, A. D. 1876, for Members of Congress, Chester B. Darrall
received 15,626 votes, and Joseph H. Acklen received 13,533 votes.
``Now, therefore, I, William Pitt Kellogg, governor of the State of
Louisiana, do hereby certify that Chester B. Darrall received a
majority of the votes cast at said election, and is duly and lawfully
elected to represent the Third Congressional district of the State of
Louisiana in the Forty-fifth Congress of the United States.
``Given under my hand and the seal of the State this 28th day of
December, A. D. 1876, and of the Independence of the United States the
one hundred and first.
``Wm. P. Kellogg.
``By the governor:
``[seal.] P. G. Deslonde,
``Secretary of State.''
From which it appears that Chester P. Darrall was legally elected as
a Representative to the Forty-fifth Congress from the said Third
district of Louisiana.
Subsequent to this, and after the inauguration of the Nicholls
government, a law was passed creating a new returning board, and this
new board, created under a new law, proceeded to a recanvass of the
same returns for the same office for the same district, and after a
full canvass, Governor Nicholls issued the following certificate of
election:
``United States or America,
``Executive Department, State of Louisiana.
``This is to certify that at general election begun and held in the
State of Louisiana, and in the Third Congressional district of said
State, on the 7th day of November, 1876, it being the first Tuesday
after the first Monday in said month, and the day prescribed by the
laws of the United States and the said State of Louisiana for the
election of Representatives in Congress from the said State, C. B.
Darrall and Joseph H. Acklen appear from the returns of said election,
filed in the office of the secretary of state, within and for said
State, to have been the only persons voted for in the Third
Congressional district of said State for Representative in the Forty-
fifth Congress of the United States from said State; and that it
further appears from said returns on file and of record in said office
that C. B. Darrall received 15,786 votes and Joseph H. Acklen received
14,692 votes for Representative as aforesaid in said district; and that
C. B. Darrall having received a majority of the votes cast for
Representative from the Third district in said State of Louisiana, in
the Forty-fifth Congress of the United States of America at said
election, has been duly, lawfully, and regularly elected to represent
said Third district of said State in the aforesaid Congress of the
United States, in accordance with the laws of the United States and of
the State of Louisiana.
Francis T. Nicholls,
``Governor of the State of Louisiana.
-----------------------------------------------------------------------
\1\ Second session Forty-fifth Congress, House Report No. 147; 1st
Ellsworth, p. 124.
Sec. 924
``We, Francis T. Nicholls, governor of the State of Louisiana, and
Oscar Arroys, assistant secretary of state of said State, do hereby
certify that the above and foregoing declaration of the result of the
election begun and held in the Third Congressional district of the
State of Louisiana on the 7th day of November, 1876, is a true copy of
the original certificate, as recorded in the office of the secretary of
state of the State of Louisiana, by the secretary of state, and signed
by the governor.
``Witness our hands and the seal of the State of Louisiana, at the
city of New Orleans, this 27th day of February, 1877.
``Francis T. Nicholls,
``Governor of the State of Louisiana.
``Oscar Arroys,
``Assistant Secretary of State.''
From which it appears that Chester B. Darrall, the same man for the
same office, was elected.
By the Kellogg returning board Darrall's majority is 2,093, and by
the Nicholls returning board it is 1,094.
The majority of the committee disregarded the return of the Kellogg
board, and the minority practically did the same, the consideration of
the case being based on the computation of the Nicholls board. Speaking
of the latter board, the majority report says:
They adopt the count of the votes as declared by the present legal
board of canvassers in all the parishes except those of St. Martin,
Lafourche, and Iberville. That board counted the vote actually cast,
and returned it without the exercise of judicial powers and without
disfranchising any portion of the people. It is composed of men of high
character, Republicans and Democrats, and there is every reason to give
full faith and credit to its official acts.
The Nicholls board omitted from the count the vote of St. Martin's
Parish, holding the returns to have been forged. The committee found no
proof of that fact, and counted that return in accordance with the
following agreement:
Great Seal In testimony whereof I have hereunto set my hand, and
caused to be affixed--E
Joseph H. Acklen
v. Before the Committee on Elections, House of
Representatives.
Chester B. Darrall.
It is hereby stipulated and agreed by and between the parties
contestant and contestee that, in the consideration and determination
of the above-entitled case, the committee shall allow to the contestant
1,027 votes as having been lawfully cast, counted, and returned for him
in the parish of St. Martin, in the State of Louisiana, and to the
contestee 1,095 votes as having been lawfully cast, counted, and
returned for him in said parish, and that said parties respectively
lawfully received, and are entitled to the benefit of, the number of
votes aforesaid on account of said parish.
J. H. Acklen.
C. B. Darrall.
In Lafourche Parish the whole committee united in rejecting the poll
of precinct No. 17, where sitting Member had 86 votes and contestant
none, the majority report thus setting forth the reasons:
The evidence, however, goes to show that the vote of poll 17, where
86 Republican votes were cast and not one Democratic vote, which was
held at a place unauthorized by law, and about 1 mile from the place
legally appointed, with no Democratic commissioners present, and
appears to have been so held for the express purpose of preventing any
Democrats from voting there, should be rejected and not counted.
The report quotes the decision of the supreme court of Louisiana on
this poll:
We have been unable to find, and have been referred to no case, where
votes cast under similar circumstances have been counted to determine
an election.
Sec. 924
These questions disposed of, only the parish of Iberville is left.
Without Iberville the result was very close. Contestant had a majority
of 63 votes in all the other parishes. The returns of Iberville Parish,
both in the Kellogg and the Nicholls canvass, gave Darrall, the sitting
Member, a majority of 992. So it is plain that Iberville Parish is
decisive.
The returns of 5 of the 11 precincts in Iberville are not impeached.
These 5 gave Darrall 677 votes, and Acklen 430 votes, or a majority of
247 for Darrall. This overcame Acklen's majority of 63 in the remainder
of the parishes, and gave Darrall a net majority of 184 in the entire
district except the 6 impeached precincts of Iberville.
The Nicholls canvass gave in the 6 impeached precincts a majority of
745 votes for Darrall.
But a recount was made at the instance of contestant, and the result
of this was to destroy the 745 majority for Darrall and substitute a
majority of 292 for contestant. This result would overcome sitting
Member's majority of 184 in the rest of the district, and leave a final
majority of 108 for contestant in the entire district.
It is evident, then, that the recount is decisive.
The law of Louisiana provided as to custody of ballots:
The votes shall be counted by the commissioners at each voting place
immediately after closing the election and without moving the boxes
from the place where the votes were received, and the counting must be
done in the presence of any bystander or citizen who may be present.
Tally lists shall be kept of the count, and after the count the ballots
counted shall be put back into the box and preserved until after the
next term of the criminal or district court, as the case may be; and in
the parishes, except Orleans, the commissioners of election, or any one
of them selected for that purpose, shall carry the box and deliver it
to the clerk of the district court, who shall preserve the same as
above required; and in the parish of Orleans the box shall be delivered
to the clerk of the first district court for the parish of Orleans, and
be kept by him as above directed. (Act 98, 1872, p. 174.)
The following certificate was given to show when the next term of
court met:
State of Louisiana, Parish of Iberville.
Clerk's Office, Fifth Judicial District Court.
I, Charles H. Gordon, clerk of the fifth judicial district court of
Louisiana, in and for the parish of lberville, do hereby certify that
the first term of said district court for the present year was held in
Iberville Parish on Tuesday, the 2d day of January, A. D. 1877, as the
first Monday was the 1st and a dies non, his honor James L. Cole
presiding.
Witness my hand officially and the impress of the seal of said court
at the parish of Iberville this 8th day of May, A. D. 1877.
[seal.]
C. H. Gordon, Clerk.
The recount was made March 6, 1877, after the date of the session of
the court, as given by the clerk's certificate.
Several questions arose as to this recount:
(a) As to the legal preservation of the boxes.
The majority report says:
Another objection to the consideration of the recount urged by
contestee is that the time between the election and the recount was
some four months, and that the time for the preservation of the boxes
by the clerk, under the laws of Louisiana, had expired. Section 13
provided in substance that the clerk of the court should safely keep
the ballot boxes, after delivery to him by the officers of election,
until after the next regular term of the district or criminal court for
said parish. Contestee urges that the next regular term of the district
or criminal court for the parish of Iberville was in January, 1877,
Sec. 924
two months after the election, and that after the lapse of said term,
the law no longer obligating the clerk to safely keep the ballot boxes,
a recount of such boxes or their contents was illegal. The facts are
that the time for holding the term of the regular district court was in
January, but no court was held. There were two claimants to the office
of district judge. One of these claimants (and the one, too, who was
afterwards declared not to be the judge) went through the form of
holding court; but no business whatever was transacted, and no regular
term of court was held until the month of April. But, granting the fact
that the term of court had elapsed between the time of the election and
the recount, would that fact abridge the power of Congress in
determining the rights of claimants to seats in its body to take the
ballot boxes, no matter what might be the lapse of time; and if
satisfied that the boxes had not been tampered with, and that the
ballots contained in them were the identical ballots cast at the
election, to open the boxes, count the ballots, and decide in
accordance with the result of said recount? But the committee find,
after thorough examination, that contestant could not have obtained the
recount at a date earlier than it was effected. The election took place
November 7, but the Wells-Anderson returning board did not declare any
result until nearly two months afterwards. After that declaration the
contestant gave notice of contest, which was given within the time
required by law. During this time, and until the Nicholls government
was established in Louisiana, the state of affairs was such that few or
no courts transacted business, and it was not until the month of
February that the board of canvassers under the Nicholls government
declared any results. And thus awaiting final action of these two
boards of canvassers were any proceedings by contestant delayed; and,
further, the answer of the contestee to notice of contest bears date
``Washington, D. C., January 20, 1877,'' and appears to have been
served some time thereafter. Thus the recount, which took place early
within the first forty days, granted the contestant by law was effected
at as early a date as the case permitted.
In the course of the debate it was admitted that the fact as to Judge
Cole being an usurper, and in fact holding no real court, was known
rather ``from the general knowledge of the condition of affairs in
Louisiana'' than from any evidence in the record of the case.\1\
The minority views, presented by Mr. J. N. Thornburgh, of Tennessee,
said:
The annexed certificate from the clerk of the district court shows
that the first term of court was held January 1, and the said recount
was not had till March. After that the clerk is not responsible for
safe-keeping of either boxes or ballots, and no law requires that the
ballots shall be longer preserved, and it is no offense to tamper with
or change the ballots after that time.
In the debate \2\ this question was discussed at considerable length,
it being urged on behalf of the majority that the object of the law was
not to keep the ballots until a certain date; but until they could be
examined if need be at a session of court. The minority insisted that
it must be concluded that after the date set the clerk would not feel
himself responsible for the safe-keeping of the ballots.
(b) As to the authority by which the recount was ordered.
The minority views say:
This recount was ordered to be made by James Crowell, parish judge of
Iberville, on an application made to him by contestant in an oral
argument, as contestant says in his brief. It was had against the
protest of the contestee's representative, and the judge gave his
authority for so ordering the recount, section 123, Revised Statutes of
the United States. Neither that section or any other law of the United
States or of the State of Louisiana authorizes this recount.
This point was further discussed in the debate \3\ the authority of
the judge to order the recount being denied by the minority. The
majority contented them-
-----------------------------------------------------------------------
\1\ Speech of Mr. Clarkson N. Potter, of New York, Record, p. 1226.
\2\ Record, p. 1219.
\3\ Record, pp. 1218, 1219.
Sec. 925
selves with holding that the conduct of the recount was unquestioned,
whatever might be the authority to order it.
(c) As to the custody of the ballots preceding the recount.
The majority report, after discussing the evidence, concludes:
The rules of law governing recounts of ballots are plain and
positive. Before courts or legislative bodies will give weight to
results of recounts of ballots it must be shown absolutely that the
ballot boxes containing such ballots had been safely kept; that the
ballots were undoubtedly the identical ballots cast at the election;
and when these facts are established beyond all reasonable doubt, then
full force and effect are given to the developments of the recount.
After full examination of the evidence your committee found no
difficulty whatever in arriving at the conclusion that in this case the
ballot boxes had been preserved; that they had never been tampered
with, and that the ballots found in them were the identical ballots
cast at the November election.
Suffice it to say that the evidence is conclusive that the ballot
boxes had been safely kept, and had not been tampered with between the
time of the election and that of the recount.
Such being the case, the presumption follows that the ballots found
in the boxes when the recount was made were the identical ballots cast
at the election.
The minority deny that the evidence shows conclusively that the boxes
were properly kept.
(d) While both parties were represented on the election boards in the
various precincts, it would seem impossible that the official count
could be so far wrong as the recount showed. This was explained by the
fact that a member of sitting Member's party who controlled the
distribution of many tickets put forth a deceptive ballot containing
either contestant's name or a blank, and that many of these tickets
were counted as straight tickets.
As a result of their conclusions, the majority of the committee
reported resolutions seating contestant. The minority held that sitting
Member should retain the seat.
The report was debated at length on February 19 and 20, 1878 \1\ and
on the latter day a motion to substitute the proposition of the
minority was disagreed to, yeas 115, nays 139. Then the resolutions of
the majority were agreed to without division. Mr. Acklen, the
contestant, thereupon took the oath.
925. The South Carolina election case of Richardson v. Rainey in the
Forty-fifth Congress.
Irregularities found to be infractions of directory provisions of law
do not justify rejection of the poll.
Discussion as to whether the distribution of United States soldiers
in the neighborhood of the polls justified rejections of returns for
intimidation.
Discussion as to whether or not undue influence must be shown to have
affected the result materially to justify rejection of the returns.
Discussion of social, business, and religious influences as forms of
intimidation in elections.
Over half the vote being rejected because of undue influence, the
committee, in an inconclusive case, favored declaring the seat vacant.
On October 15, 1877,\2\ at the organization of the House, objection
was made to
-----------------------------------------------------------------------
\1\ Record, pp. 1173, 1211-1229; Journal, pp. 475-477.
\2\ First session Forty-fifth Congress, Journal, pp. 12, 13, 15.
Sec. 925
the administration of the oath of office to Mr. Joseph H. Rainey, of
South Carolina; but on October 16 the House voted that Mr. Rainey be
sworn in, and he accordingly took the oath.
On May 18, 1878,\1\ Mr. E. John Ellis, of Louisiana, from the
Committee on Elections, submitted the report of the majority of the
committee in the case of Richardson v. Rainey.
Sitting Member had been returned by an official majority of 1,528
votes. Contestant made various allegations, from which the following
questions arose for the consideration of the committee:
(1) Numerous objections to the counting of various polls. The
majority report thus enumerates and discusses them:
A failure of one or more precinct officers to take the oath of office
prescribed by law; a failure of one or more of the precinct officers to
file the official oath in the office of the secretary of state; a
failure to appoint a clerk of election according to law; a failure of
the precinct officers to organize as a board; a failure to keep a poll
list according to law; a failure to open the polls at the hour fixed by
law; a failure of the clerk to take the oath of office prescribed by
law; the fact that a ballot box contained more than one opening; the
circumstance that but one United States supervisor attended the
election; an adjournment of the polls during the day; a failure to keep
a tally list; a failure to count the ballots immediately after the
close of the poll; a failure to administer the oath prescribed by law
to the electors; the fact that the poll list, ballot boxes, and
statements of results were not delivered to the county canvassers by
the chairmen of the precinct boards; the refusal of the county
canvassers to entertain and decide upon protests presented by electors;
the fact that the election was conducted by two instead of three
precinct officers, and the fact that the county canvassers opened the
ballot boxes when they canvassed the votes.
These objections are most elaborately set forth and discussed by the
contestant and the counsel for contestee. It will be observed that most
of the objections relate to violations of the election law that are
purely directory in their character. Their violation, if no fraud be
shown to have resulted therefrom, can not vitiate an election. It is
wholly different when mandatory provisions of an election law are
violated. In the latter case the election is void.
But the voter is not to be deprived of his right, and the citizens
are not to lose the result of an election fairly held because of some
unimportant omission of form, or of the neglect, carelessness, or
ignorance of some election officer, or the failure to carry out some
unimportant direction of the law. (Vide McCrary's Law of Elections;
Cooley, Const. Limitations; Botts v. Jones, 1 Bartlett, 73; People v.
Cook, 4 Selden, 67; Taylor v. Taylor, 10 Minn., 107; People v. Cook, 14
Barbour, 259; Barnes v. Adams, 2 Bartlett, 764; Blair v. Barrett, 1
Bartlett, 313; Cox v. Strait, decided in Forty-fourth Congress, and
other authorities.)
Your committee find that the irregularities complained of, even if
true in every particular, are infractions of directory provisions of
the law and are unaccompanied by proof of fraud, and ought not,
therefore, to vitiate the election of themselves.
(2) It was objected that the presence of United States soldiers at
the polls had prevented a free, fair, and peaceable election.
The governor of South Carolina had, on October 7, 1876, preceding the
election which was held on November 7, 1876, issued a proclamation
declaring certain irregular military organizations unlawful and
commanding them to ``abstain from all unlawful interference with the
rights of citizens and from all violations of the public peace,'' and
commanding them to disband. On October 17, 1876, the President of the
United States issued a proclamation reciting that whereas it had been
shown that ``insurrection and domestic violence exist in several
counties;'' and
-----------------------------------------------------------------------
\1\ Second session Forty-fifth Congress, House Report No. 806; 1
Ellsworth, p. 224.
Sec. 925
whereas the executive of the State had made application for Federal
aid, and that, therefore, he commanded all persons engaged in such
unlawful and insurrectionary proceedings to disperse. Later the
following order was issued:
War Department,
Washington City, October 17, 1876.
Gen. W. T. Sherman,
Commanding United States Army.
Sir: In view of the existing condition of affairs in South Carolina,
there is a possibility that the proclamation of the President of this
date may be disregarded. To provide against such a contingency, you
will immediately order all the available force in the Military Division
of the Atlantic to report to General Ruger, commanding at Columbia,
S.C., and instruct that officer to station his troops in such
localities that they may be most speedily and effectually used in case
of any resistance to the authority of the United States. It is hoped
that a collision may thus be avoided, but you will instruct General
Ruger to let it be known that it is the fixed purpose of the Government
to carry out the spirit of the proclamation, and to sustain it by the
military force of the General Government, supplemented, if necessary,
by the militia of the various States.
Very respectfully, your obedient servant,
J. D. Cameron,
Secretary of War.
The majority of the committee cite much evidence to show that the
presence of these soldiers, distributed at various points through the
district, had the effect of preventing many colored voters from
supporting contestant. The majority say:
There can not remain a doubt in the impartial mind that the sending
of the troops of the United States into South Carolina and the uses
made of their presence did produce a marked and controlling effect upon
the result of the election, amply sufficient of itself to justify your
committee in declaring the election null and void.
But even had no effect been proven, we are not prepared to say but
that their very presence at the polling places, the mere fact of their
being sent, without proof of effect, would of itself be sufficient to
set aside and annul the election. Our English ancestors, from whom our
laws and ideas of constitutional freedom are derived, have been wisely
jealous of the slightest tampering or interference with an election by
the Government, and especially through its armed forces.
The report then quotes the English statute, 100 years old, requiring
troops to be moved out of any place where an election was to be held,
cites Blackstone's Commentaries also to the same effect, and refers to
a precedent of Parliament:
At an election held for member of Parliament for Westminster, over
one hundred and thirty years ago, by order of three magistrates a body
of English troops were marched up and halted in the churchyard of St.
Paul, Covent Garden, very near the polls, where the balloting was
proceeding. Upon being informed of this fact by the Speaker, the House
of Commons passed unanimously the following resolution:
``That the presence of a regular body of armed soldiers at an
election of members to serve in Parliament is a high infringement of
the liberties of the subject, a manifest violation of the freedom of
elections, and an open defiance of the laws and constitution of this
Kingdom.''
And by the order of the House the three offending magistrates were
arrested and brought to its bar and compelled to kneel, in which
position they were reprimanded by the Speaker for the breach of English
liberty in daring to procure the presence of troops at an election for
member of Parliament.
The majority further say in their report:
But we are asked by contestee's counsel to go into a critical
examination of the testimony and to endeavor to ascertain the exact
results of the intimidating influences. He contends that undue
influence in an election must be shown to have affected the result
materially. In this he is in the main correct. In the entire district
over 34,000 votes were polled. Only about 500 witnesses were examined,
and many of these in regard to facts other than the subject of
intimidation. It is impossible to tell the exact change produced by the
intimidating influences, nor is it essential. It is sufficient that 300
witnesses,
Sec. 925
white and colored, Democratic and Republican, and some of them men of
the highest character, swear positively to the general widespread and
powerful influence and change produced by the intimidating influences.
McCrary's Law of Elections lays down the rule, page 326, which we
regard as correct: ``If the violence and intimidation have been so
extensive and general as to render it certain that there has been no
free and fair expression by the great body of electors, then the
election must be set aside, notwithstanding the fact that in some of
the precincts or counties there was a peaceable election.'' And in the
Canada case, already quoted from, Justice Ritchie said, in delivering
his opinion: ``And though I have no means of computing or ascertaining
the exact extent of the terror or undue influences, it was still, in my
opinion, such and so great an interference with the freedom of the
elections as demands that the election should be annulled.'' That these
undue influences were general and powerful and caused the greatest
change is admitted by the counsel for contestee, himself a Carolinian
and a gentleman of great attainments.
The minority \1\ deny that the Federal troops were a source of
intimidation.
It is not claimed that the troops coerced, intimidated, or persuaded;
that an officer or soldier did or said aught indicating a personal
preference for one side or the other.
They were stationed usually, so far as the evidence discloses, out of
sight, and in no case immediately at the polls; 250 or 400 yards are
given as their nearest approach to the polls.
An officer and 29 men were divided between Sumter Court-House and
Lynchburg, places 10 miles apart, in Sumter County.
As we have already stated, it is not alleged the soldiers did
anything to influence the election; that is, committed any overt act.
Located as aforesaid, it appears they were silent and passive
spectators of the scenes, without expressing preference in the result
of the election. And it is claimed these men coerced the colored voters
to a support of the Republican ticket.
We grant their presence emboldened the theretofore despairing black
man to dare to exercise a freedman's right and vote his choice.
The majority report advises us there was no violence before the
troops came. We grant there was none, because terrorism had stamped out
resistance, threatened starvation had crushed the souls of these men,
and when the Federal soldiers appeared upon the scene, and it was
understood the rifle clubs and saber clubs, while they would valiantly
frighten negroes, did not want a conflict with Federal authorities, we
assert, these freedmen to a great extent took courage to enjoy their
highest privilege and right.
The proposition of the majority is, a police force detailed by the
Federal authorities, that simply enables the citizen to enjoy his
rights, is illegal, and renders that enjoyment illegal and void.
The proposition of the majority is, that a community terrorized into
a course of involuntary action, or subjugated to the extent of being
unable, through fear of violence, to take their lawful part in an
election, if from the presence of troops they are relieved of their
apprehension, and exercise their rights as electors, such exercise is
illegal and void.
The minority also cite the law and the Constitution to show that the
troops were properly sent to the State.
(3) It was objected by contestant that the colored militia of the
State and the religious and social organizations of the colored people
were also agencies of intimidation. The majority report charges that
the process of intimidation--
by Republican organizations against colored Democrats was to be
effected, first, by threatening, intimidating, and maltreating them,
and terrorizing them by means of armed colored organizations, and,
secondly, by bringing to bear upon them the fear of social and
religious ostracism.
After condemning such modes of electioneering as against the
principles of free institutions, and after citations from McCreary and
Cooley, the majority continue:
The laws of the States and of the United States, the spirit of
popular government, the laws and precedents of England and English
courts all tend to the principle that the elector shall vote and vote
-----------------------------------------------------------------------
\1\ The minority views were presented by Mr. Frank Hiscock, of New
York.
Sec. 925
according to the dictates of his judgment, untrammeled and uninfluenced
by any improper influences. Not only has intimidation by violence and
threats, or the presence of armed troops at or near the polls, or of
armed men other than troops, and bribery, the promise of advancement,
the treating of electors to influence their votes been held as causes
that interfered with the freedom and purity of elections, but most of
the States have laws which forbid courts to be held, or process served
on election day, or militia musters to take place, accounting that
these might be used as means of intimidation or of improper influence.
A great English lawyer, who is standard authority upon the common law,
has written that ``it is essential to the very existence of Parliament
that elections should be free; wherefore all undue influences on
electors are illegal.'' (1 Blackstone, p. 177.) And in a recent case
which arose in Canada Mr. Justice Ritchie said:
``The rights of individual electors are the rights of the public. The
public policy of all free constitutional governments in which the
electoral principle is a leading element (at any rate in the British
constitution) is to secure freedom of election. * * * A violation of
this principle is equally at variance with good government and
subversive of popular rights and liberties.'' (Brassard et al v.
Langevin, Supreme Court, Canada. Decided January, 1877.)
This case was one of controverted election. It arose from the county
of Charlevoix, in which an election for member of the Canadian
Parliament was held in January, 1876. The respondent was declared
elected. His election was contested upon the ground that ``undue''
spiritual or religious influence had been exercised by the priests of
certain parishes in the county, under the ninety-fifth section of the
election act of 1874. The section is as follows:
``Sec. 95. Every person who, directly or indirectly, by himself or by
any other person on his behalf, makes use of, or threatens to make use
of, any force, violence, or restraint, or inflicts or threatens the
infliction, by himself or by or through any other person, of any
injury, damage, harm, or loss, or in any manner practices intimidation
upon or against any person, in order to induce or compel such person to
vote or to refrain from voting, or on account of such person having
voted or refrained from voting, at any election, or who by abduction,
duress, or any fraudulent devise or contrivance impedes, prevents, or
otherwise interferes with the free exercise of the franchise of any
voter, or thereby compels, induces, or prevails upon any voter to give
or refrain from giving his vote at any election, shall be deemed to
have committed the offense of undue influence.''
The proof was that the respondent was supported by all the priests of
the Roman Catholic Church, and that from their pulpits one priest had
declared that to vote against respondent and for his opponent ``was a
grave sin, a matter of conscience.'' Another priest characterized such
a vote as a ``mortal sin.'' Another said that with ``that party (the
party opposed to respondent) in power, we would wade in the blood of
priests; that the horrors of the French revolution would be reenacted;
that, to prevent these misfortunes, liberalism must be crushed by the
people and the clergy.'' Another declared to his flock ``that it was a
sin to vote for the liberal party, and that at the hour of death those
who voted for that party would regret it.'' Another said, ``Whoever
votes for Mr. Tremblay (the opponent of respondent) would be guilty of
a grave sin, and if he died after so voting he would not be entitled to
the services of a priest.'' There was no proof that respondent had
incited these sermons. But the court had no difficulty in determining
the question of agency, and said:
``Decisions in England, the election law of which is identical with
ours, and those rendered in Ontario and Quebec, lay down the principle
that every person who, in good faith, takes part in an election for a
candidate with his consent, becomes ipso facto an agent of the
candidate. Upon that point there can be no doubt; and the election of a
prominent member of Parliament was annulled in consequence of the
excessive zeal of his agents.
``All these sermons [said the court], accompanied by threats and
declarations of cases of conscience, were of a nature to produce in the
mind of a large number of electors of the county, compelled to hear
these things during several consecutive Sundays, a serious dread of
committing a grievous sin and that of being deprived of the sacraments.
There is here an exerting of undue influence of the worst kind,
inasmuch as these threats and declarations fell from the lips of the
priest speaking from the pulpit in the name of religion, and were
addressed to persons of little instruction, and generally well disposed
to follow the counsels of their cure's. I can conceive that these
sermons may have had no influence whatever on the intelligent and
instructed portion of the hearers; nevertheless, I have no doubt but
these sermons must have influenced the majority of persons void of
instruction, notwithstanding that by reason of the secrecy
Sec. 925
in voting by ballot it has not been possible to point out more than 6
or 8 voters as having been influenced to the extent of affecting their
will. According to the testimony of over 15 witnesses, a very large
number changed their opinion in consequence of this undue influence. I
may here state that in like cases, to annual an election a large number
of cases of undue influence by a candidate, or an agent, is not
required and that one single case, well proved, suffices, although the
candidate availing himself of it may have had an overwhelming
majority.''
Taking, the evidence as a whole, it appears clear that a general
system of intimidation was practiced; that as a consequence undue
influence was exercised and the electors did not consider themselves
free in the exercise of their elective franchise. (Vide Mayo election
case, 1857; Longford election case; Galway cases; case of county of
Bonaventura.)
The principle of all the decisions in all these cases is that the
priest must not appeal to the fears of his hearers, nor say that the
elector who votes for such a candidate will commit a sin or incur
ecclesiastical censures or be deprived of the sacraments. And the court
annulled the election and declared it void.
The committee have quoted extensively from the decision in this case,
inasmuch as the principle it lays down, as well as the principle of the
authorities it cites, is applicable to some extent to the case at bar.
The majority report then goes on to say that the colored militia
organizations were agencies for intimidation:
The evidence is clear that throughout the district, and in nearly
every precinct of the district, these organizations existed. They were
armed with the State arms for the most part, but many had private arms.
They went to their political meetings with arms in their hands, and at
many of the polling places they appeared on election day in organized
force.
So intolerant were they against individuals of their own race who
differed with them politically that they uttered against them the most
terrible threats, and, in some cases, resorted to actual violence. They
denied the right of free speech; they tore tickets from the hands of
voters and substituted others; they interfered with the domestic peace
of colored Democrats by persuading their wives to leave them, and left
no device that could intimidate unemployed to coerce men of their own
color into voting the Republican ticket. Evidence clear and
indisputable is found in the record of this state of facts, and of the
widespread influence which this mode of electioneering produced in the
minds of the colored voters.
It will not suffice to meet these facts by saying that both sides
resorted to this system of tactics. The record does not sustain the
charge of intimidation generally against the Democratic party of South
Carolina. The proof is clear that they pursued the policy of
conciliation for the most part. Especially was this the course that
characterized the campaign of contestant.
The report further cites evidence to show that the religious and
social organizations of the colored people joined in this course of
intimidation. The preachers threatened to turn out of the church those
who voted for contestant. Social ostracism was also invoked.
The minority, after examining the evidence, say in their views:
There is nothing in the record to show either social ostracism or
fear was preventing the colored voters from supporting Hampton. On the
contrary, the ``policy'' we have described, according to the evidence
of General Hampton, according to all the witnesses called by the
contestant, according to the majority report, was ``conciliating''
them, and they were promising to support the Democratic candidates
until Governor Chamberlain's proclamation appeared.
It is true that there were some members of the State militia still in
possession of State arms, but there is nothing in the case evidencing,
an improper use of them.
We submit there is nothing in this case to justify the expulsion of
Mr. Rainey upon the score of intimidation or social ostracism.
Sec. 925
The minority further call attention to the following:
The Democratic committee called upon the supporters of General
Hampton to adopt the following pledges:
``Sumter, S. C., October 25, 1876.
``The Democratic executive committee recommend the adoption of the
following pledge:
``J. D. Blanding,
Chairman Democratic Executive Committee.
``A. W. Suder, Secretary.
``We, the undersigned, citizens of Sumter County, hereby pledge
ourselves (each for himself) that we will not assist or extend any
favor to any person of either race or color who shall vote for the
Republican State or county ticket at the election on 7th November next;
and that we will, in all business transactions, give the preference to
such persons as shall vote the Democratic State and county ticket at
said election.''
``Exhibit A.''
``Darlington County,------Township:
``We hereby pledge ourselves to each other that we will not rent or
let lands or houses, nor advance supplies on credit, to any person who
shall vote the Radical ticket at the election to be held on the 7th of
November next; nor will we employ as a mechanic any person who shall so
vote at said election, or keep in his employment those who do so vote;
nor will we employ in any capacity such persons as may be designated by
the executive committee of the Democratic party for this county, in a
list to be furnished by said committee.''
This, in the opinion of the minority of the committee, was sufficient
when coupled with the fact that armed bands of contestant's supporters
were riding about the country, to justify intolerance among colored men
toward their fellows who supported the oppressors of their race.
(4) The majority report thus disposes of the claim of contestant that
he should be declared elected:
But contestant, whose pacific and manly course during the election,
as shown by the record, and whose consummate ability in the management
of his cause, or rather the cause of his people, has won the highest
respect and sympathy of the committee, sets forth and shows that the
intimidating influences set on foot by the Republicans did not reach or
affect the entire district; that troops were sent into but four of the
eight counties that constitute the district, and he contends that the
intimidated counties and precincts should be thrown out and the
peaceful counties and precincts counted, which, being done, would elect
him and entitle him to the seat. And he cites the cases of Wallace v.
Simpson, Sheldon v. Hunt, Sypher v. St. Martin, Darrall v. Bailey, 2d
Bartlett, pp. 699 to 754.
It is very true that these cases were decided by a Republican
Congress. They do lay down the doctrine contended for by the
contestant. Party expediency might now suggest that the Republican
party that made these precedents ought to be bound by them. If we
should treat these decisions as containing the true doctrine of
elections, if we could regard them as other than expressions of
partisan intolerance, there would be no difficulty in reporting a
resolution awarding the seat in contest to the contestant.
But in the first place the undue and illegal influences exercised by
the Republican upon the colored people through their social, religious,
and semimilitary organizations extended nearly throughout the entire
district; and in the next place we find troops sent into four counties
the aggregate vote of which is 21,691, while in the other four weaker
counties, where there were no troops, the vote was but 12,987. To
exclude 21,691 votes out of a total of 34,678 votes and count the
residue and declare a result would be to permit an election by a
minority. This is admissible, it is true, where the election was fair,
and all had an opportunity to vote as they chose and failed only
through apathy. Such is not the case here where 34,678 voters cast
their ballots. But a very large portion of these, sufficient to have
changed the result, cast their ballots under such undue and illegal
influences as to utterly destroy the fairness and freedom of the
election. Under such circumstances we can not admit that it would be
right to permit a minority to elect. In the case of Sypher, cited
above, the report of the committee which laid down the doctrine of
minority elections was expressly overruled, vide McCrary's Law of
Elections, pp. 324, 325, 326.
Sec. 926
The true rule in such cases seems to your committee to be, that a
minority can only elect where the majority, with full opportunity and
facility to vote as they choose, unrestrained and untrammeled by undue
influence, refrained through apathy or neglect from voting. But when
undue influence, terrorism, intimidation, or illegal influences have
been brought to bear upon the great mass of the voters, and they have
been influenced, and have voted subject to these influences, although
the full and accurate extent of such influence can not be arrived at,
the entire election should be voided, although a minority may have
voted, free from such influences, and for this reason: The entire
people in such case evinced a desire to vote. The right of the majority
to rule is fundamental. In such a case the will of the majority is
defeated, not from apathy, but from undue influence. The true remedy is
to void the election, remove the undue influences, and give the
majority that opportunity to rule which is its undoubted right.
In accordance with the reasoning of their report the majority of the
committee recommend the following:
Resolved, That there was no free, fair, and peaceable election in the
first Congressional district of South Carolina in November, 1876, and
that neither Joseph H. Rainey nor John S. Richardson is entitled to the
seatr from said district in the Forty-fifth Congress by virtue of said
election, and that said seat is hereby declared vacant.
The minority favored resolutions confirming the title of sitting
Member to the seat.
On June 13 \1\ the report was called up, but the House refused to
consider it. Again, on June 17, the House refused to consider--yeas
103, nays 126. So Mr. Rainey remained in possession of the seat.
926. The South Carolina election case of Tillman v. Smalls in the
Forty-fifth Congress.
The removal of the poll from the place prescribed by law was a
violation of a mandatory provision justifying its rejection.
Discussion as to whether or not the mere presence of United States
troops near the polls constituted undue influence justifying rejection
of the return.
Nearly half the votes of a district being rejected, the Elections
Committee, in an inconclusive case, favored a declaration that the seat
was vacant.
On June 8, 1878,\2\ Mr. Thomas R. Cobb, of Indiana, from the
Committee on Elections, submitted the report of the majority of the
committee in the South Carolina case of Tillman v. Smalls.
The sitting Member had been returned by an official majority of 1,438
votes, but the correction of an admitted error increased this to 1,738
votes.
Contestant attacked this election on the same general grounds urged
by the contestant in the case of Richardson v. Rainey.
Certain peculiarities in this case may be noticed, however:
(1) ``At one precinct,'' says the majority report, ``the law in its
mandatory provisions was clearly violated by the removal of the voting
place a half mile from the place where it had been fixed by the
commissioners of election under the law. And this was done by the two
Republican commissioners without the consent of the other member of the
board, who was a Democrat. The legal notice of the election had been
published for about two weeks in the county newspapers, informing
\1\ Journal, pp. 1285, 1286.
\2\ Second session Forty-fifth Congress, House Report No 916.
Sec. 927
the public that Edgefield, box No. 2, would be held at the county
treasurer's office. The Democratic manager and supervisor of the
election at box No. 2 had no notice of the removal until the night
before the election. This illegal act upon the part of Republican
election officers was done, as the evidence shows, for the fraudulent
purpose of enabling colored Republicans to repeat their votes. This
poll should be thrown out.'' The majority base this conclusion on
section 114 of McCrary's Law of Elections.
The minority views, presented by Mr. John T. Wait, of Connecticut,
denied that the voting place had been changed without proper notice.
(2) The majority report quotes the report of the adjutant-general of
the Army to show that Federal troops were stationed at polling places
where were cast an aggregate of 15,622 votes, or nearly one-half of the
entire number of votes polled in the district. The majority say:
Your committee believe that under the rules of law to which we have
referred, and the principles which should govern in the decision of
such cases, that the election at these 22 precincts where troops were
at or near the polls on the day of election should be declared void. *
* * If your committee is correct in its conclusions, and the votes of
these 22 precincts are thrown out, no one will contend that this
election ought to stand. It will not be insisted, we presume, that when
nearly one-half of the votes cast at an election for a Member of
Congress are thrown out for the causes herein alleged, that the
remainder of the votes should be looked into and the election
determined by them. For, as in this case, when the evidence shows that
a large class of the voting population which voted at other precincts
in said district than those at which troops were stationed were more or
less influenced by the presence of said troops within the county where
they so voted, there is no way by which you can determine the will of a
majority of the voters. Therefore the entire election should be set
aside.
The minority of the committee call attention to the fact that the
exclusion of all the precincts where troops were stationed would still
leave a majority of 452 votes to sitting Member. But the minority
decline to admit that the returns of the precincts in question should
be thrown out, saying:
Circumstantial evidence tending to show intimidation would be
competent, and evidence that troops were stationed in the vicinity of
the polls would be competent as tending to show intimidation; and where
this is shown as one fact tending to prove intimidation, less evidence
aliunde will be required to establish the fact that intimidation
actually existed. But intimidation and violence to such an extent as to
set aside an election can not be presumed in this country from the
simple fact of organized bodies of troops being stationed near the
polls. But if this evidence was followed by other evidence showing that
but a portion of the vote in such precincts was polled, or that a
considerable number of the electors did not vote by reason of fear of
military interference, a case would be presented where the House, to
say the least, would have to carefully consider the question whether
the election must be set aside on account of intimidation.
The majority of the committee in this case, as in the case of
Richardson v. Rainey, reported a resolution declaring the seat vacant;
but the case was never reached in the House and Mr. Smalls continued to
hold the seat.
927. The California election case of Wiggington v. Pacheco in the
Forty-fifth Congress.
State canvassers being a court of record, their signed record,
approved by the State courts, gives prima facie title, although at
variance with their formal proceedings.
Ex parte affidavits were not admitted to impeach the legal record of
canvassing officers in determining prima facie title.
Sec. 927
On October 17, 1877,\1\ the House decided that Romualdo Pacheco of
California, should be sworn in as a Member, and that the papers in his
case and that of the contestant should be referred to the Committee of
Elections.
On January 31, 1878,\2\ Mr. John T. Harris, of Virginia, submitted
the report of the majority of the Committee on Elections in the case of
Wiggington v. Pacheco. The official returns had given to sitting Member
a majority of one vote over contestant. Several questions of law arose.
(1) As to the prima facie title: By the law of California the returns
of the various voting places were returned to the county clerk at the
county seat, where they were required to be canvassed by the board of
supervisors. The report says in regard to the functions of this
canvassing board:
This board of supervisors is not a board simply created for the
purpose of canvassing the returns of an election, and which ceases to
exist upon that duty being discharged; but it is an official body of a
continuing character, required to keep a record of its proceedings,
holding sessions day after day--on one day signing and attesting the
proceedings of the day next preceding, etc. Its character is
sufficiently shown in the opinion of Mr. Justice Rhodes, at the
beginning of that opinion, on page 34, part first, of the record. As to
this there can be no doubt, and it is an important fact to be noted.
The duties of this board touching the matter of elections are thus
defined by the statute:
``Sec. 4046. Subdivision 3. To establish, abolish, and change
election precincts, and to appoint inspectors and judges of elections,
canvass all election returns, declare the result, and issue
certificates thereof.
``Sec. 4030. Subdivision 1. The clerk of the board must record all
the proceedings of the board.
``Sec. 4029. The clerk of the county is ex-officio clerk of the board
of supervisors. The records must be signed by the chairman and the
clerk. The clerk must be paid such compensation as is provided by law
in full for all services as clerk of the board.''
This board having this jurisdiction, the statute further provides as
to the manner of canvassing the returns in the following sections:
``Sec. 1281. The canvass must be made in public, and by opening the
returns and estimating the vote of such county or township for each
person voted for, and for and against each proposition voted upon at
such election, and declare the result thereof.
``Sec. 1282. The clerk of the board must, as soon as the result is
declared, enter on the records of such board a statement of such
result, which statement must show--
``1. The whole number of votes cast in the county.
``2. The names of the persons voted for and the proposition voted
upon.
``3. The office to fill which each person was voted for.
``4. The number of votes given at each precinct to each of such
persons, and for and against each of such propositions.
``5. The number of votes given in the county to each of such persons,
and for and against each of such propositions.''
Here, then, we have an official board, having a jurisdiction defined
by law, required to keep a record, which is to be signed by its
chairman and the clerk.
The supreme court of California, in the litigation over this very
case, said of this record thus made (see p. 34 of the record in this
case):
``A record kept and authenticated in the manner provided by those two
sections (4030, 4029) is the evidence of the proceedings of the board,
and is the only evidence thereof in cases where the proceedings are
required to be entered of record.''
Then the statute further provides that this record shall be certified
to the secretary of state, as will appear by the following sections:
``Sec. 1344. The clerk of each county, as soon as the statement of
the vote of his county at such
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\1\ First session Forty-fifth Congress, Journal pp. 24, 25.
\2\ Second session, House Report No. 118; First Ellsworth, p. 5.
Sec. 927
election is made out and entered on the records of the board of
supervisors, must make a certified abstract of so much thereof as
relates to the vote given for persons for Representative to Congress.
``Sec. 1345. The clerk must seal up such abstract, indorse it
`Congressional Election Returns,' and, without delay, transmit it by
mail to the secretary of state.''
And from the certified copies or abstracts of these records from the
various counties the secretary of state makes his certificate to the
governor, showing the person having the highest number of votes in the
district.
The contestant claimed that in the county of Monterey the return of
the clerk, which gave him 986 votes, should have given him 988 votes.
In proof of this the contestant offered certain affidavits which the
committee disregarded because they were ex parte.
But there existed as a part of the record in the case an affidavit,
introduced by the sitting Member, from the county clerk, wherein that
official set forth that the board of canvassers met, tabulated the
returns for Congressman, giving contestant a total of 988 votes,
ascertained the results for county officers, passed an order directing
the clerk to issue certificates to said officers, and then adjourned
sine die. About an hour after adjournment, and before the pencil
minutes of the result had been transcribed on the records of said board
of canvassers, the following occurred, as described in the affidavit of
the clerk:
Mr. St. John, a member of said board, returned to the office and
stated to me that he thought a mistake had been made in the vote for
Congressman; that Mr. Scott and Mr. Carter only had 986 votes for Mr.
Wigginton. We looked over the figures which I had made and found that
they had been added correctly. I then gave to Mr. St. John a copy of my
figures of the vote for Congressman, and suggested to him that he
compare the same with the figures of the vote as the same had been kept
by Mr. Scott, and said that he would in that way find out where or in
which precinct the difference was, and if there was a mistake, we would
correct it in the morning.
After supper that night I wrote up the minutes and transcribed the
statement made in pencil to the minute book. On the morning of November
14 Mr. J. W. Leigh and myself were in the clerk's office. Mr. St. John
came in and stated to me that the difference in the figures was in San
Lorenzo precinct. I got the tally list from San Lorenzo precinct, and
Mr. St. John, Mr. Leigh, and myself examined the same. We found that
Mr. Wigginton had only received 27 votes, whereas the tabulated
statement and the minutes, as they stood then, had allotted to Mr.
Wigginton 29 votes in said precinct. The tally list was in all respects
regular. The 27 was in marks in figures twice and written twice.
We all three felt fully convinced that Mr. Wigginton had received in
the precinct only 27 votes, and the clerk had made a mistake in putting
down 29. I then and there changed the vote, as entered on the minutes,
from 29 to 27, and the total vote from 988 to 986, and thereafter, and
on the same day, the chairman of said board signed the minutes.
That on or about the 15th day of November, 1876, I made an abstract
of statement of so much of said vote as related to persons voted for
for Representatives to Congress, and duly certified the same to the
secretary of state of California; that said statement so certified as
aforesaid only gave Mr. Wigginton 27 votes in said San Lorenzo
precinct, and only gave him 986 in the county; that the minutes of said
board, in relation to said vote, have not been changed since the same
were signed by the chairman as aforesaid; that said minutes had not
been changed since I made and forwarded the abstract as aforesaid; that
the minutes of said board now show 27 votes in San Lorenzo precinct and
986 votes in the county for Mr. Wigginton, and that said abstract of
statement, so forwarded as aforesaid, contains a full, true, and
correct statement of the vote for Representative of Congress, as the
same appears entered in the records of said board of supervisors at the
present time.
The committee thus discuss the statement of the clerk:
From this it will be seen that the 2 votes in question occurred in
putting down the vote of San Lorenzo precinct; that in making a pencil
memorandum, to be transcribed to the record, the clerk put down for
contestant 29 votes, and afterward changed it to 27 votes in the manner
described in the affidavit, and for the reasons therein set forth.
Sec. 928
It must be borne in mind that the contestant nowhere attempts to
prove, in the manner pointed out by the statute in reference to
contested elections, that he received 29 votes in San Lorenzo precinct.
He relies upon the evidence disclosed in the mandamus proceedings in
the supreme and district courts of California to prove that the count
made by the board of supervisors showed that he received 29 votes in
that precinct. The president of the board and the clerk having signed a
record showing only 986 votes in Monterey County for contestant, and
this record having been duly certified to the secretary of state, and
the supreme court of California having decided, after a careful
examination of all the facts as they appeared in contestee's petition
and contestant's answer, that the record thus certified to the
secretary of state must stand, under the laws of California, until set
aside or shown to be erroneous by a contest, under the statute in such
cases made and provided, your committee are of the opinion that the
truth or falsity of the clerk's return is not put in issue in this
contest, and that the record thus certified by the clerk in the manner
required by the law of California must stand. If contestant had felt
himself injured by that record it was his duty and privilege to show
its falsity in the manner pointed out in the statute.
The committee contend that the record ``imports verity,'' although
they say--
We do not contend that the committee or the House can not go behind
it and ascertain the real facts; but we do contend that it must be
presumed to be correct until the contrary is proven; and it is
incumbent on the contestant to prove that it is not correct.
This proof contestant had not submitted in a satisfactory manner. The
minority of the committee in their views announce their concurrence in
this portion of the report; but Mr. William M. Springer, of Illinois,
who signed the report of the majority, filed dissenting views giving
reasons why the vote should be counted as actually canvassed rather
than as returned by the clerk.
928. The case of Wiggington v. Pacheco, continued.
The vote of a person residing without a precinct was rejected.
As to the degree of evidence required to justify rejection of a vote
for disqualification on account of residence.
A person does not acquire a legal residence in a place by being
stationed there while in the military service of the United States.
(2) Questions of law arose as to the qualifications of certain
persons who voted either for contestant or sitting Member:
(a) The majority of the committee rejected the vote of Charles
Gilbert, who they thought undoubtedly voted for sitting Member, because
he resided for thirty days preceding the election at Alvah Mitchell's
house, and Alvah Mitchell was not allowed to vote in the precinct
because he did not live therein. A witness swore that he knew the line
and that the Mitchell house was not in the precinct.
The minority quote the testimony, which did not attempt to fix
Gilbert's residence except in connection with living in the Mitchell
house, and say:
But this is not sufficient to prove residence at Mitchell's house.
The rule of law on this subject is this:
``Nor has the mere statement by a witness that a voter was or was not
a resident, without giving facts to justify his opinion, been
considered sufficient to throw out such a vote. The testimony shows a
number of instances where a witness would state positively the
residence or nonresidence of a voter on some theory of his own, or some
mistake of fact, when other testimony would show with entire clearness
that the vote was legal.''
What constitutes a legal residence is generally imperfectly
understood by witnesses. It is not sufficient for a witness to say that
a man resides in this or that place, but facts should be given to show
that the place named was the actual legal residence. It is very easy
for witnesses to mistake the place
Sec. 928
where a man may be staying temporarily for his actual residence; or, in
other words, to speak of the place where he may be temporarily at work
as his residence, his home, or where he lives. This kind of evidence is
not and never should be regarded as sufficient to prove a man an
illegal voter, and hence we contend that this evidence is wholly
insufficient to prove Gilbert to have been an illegal voter.
(b) The majority set forth a second question, as follows:
Charles Waterman voted at Mayfield, Santa Clara County. He was a
single man. He lived in Mayfield four or five years. Six or eight
months before the election he sold his interest in the hotel business;
said, ``the people of Mayfield might go to thunder; he wanted nothing
more to do with them, and left there. He said, ``he left this town for
good.'' He took employment in a circus, and traveled from place to
place in California and Oregon. He returned to Mayfield on the morning
of the election. His vote was challenged. He swore it in, and left the
town on the same day. It is conclusively shown that he voted for Mr.
Pacheco. The law of California says, ``that place must be considered
and held to be the residence of a person in which his habitation is
fixed, and to which, whenever he is absent, he has the intention of
returning.'' Waterman having left Mayfield ``for good,'' as he declared
when he took his departure, if he should afterward conclude to return,
he must acquire his residence again the same as if he had never resided
in the place. Under the law of California, and by his own declaration,
he was not a resident of the precinct in which he voted. His vote must
be rejected.
The minority strongly dissent:
There is absolutely nothing to indicate any purpose on his part to
change his residence, other than the statement of a witness that he
said he left this town ``for good'' when he went with the circus in the
spring. To permit this loose kind of testimony, an attempted repetition
of what a person said eighteen months before, to have the effect to
disfranchise a voter, and perchance to determine the right to a seat in
the House of Representatives, will not do. Such a precedent or rule can
only work mischief. Such testimony is considered by courts and authors
to be the most unreliable and least worthy of consideration, and for
reasons which are too familiar to need to be repeated here. Waterman,
as before stated, was challenged as a voter. He was sworn and
interrogated touching his right to vote. He knew where his residence
was, what his intentions were when he went away with that circus, and
upon his sworn statements, coupled with the fact that notoriously he
had been a resident there for years, his vote was received. Now it is
proposed by the majority to say that that was an illegal vote, with no
other evidence to warrant it than the statement of a witness, made
eighteen months after he professed to have heard it, that Waterman said
about the time he went away with the circus that he was going ``for
good.''
If this man's vote can be held to be illegal, it will be the
declaration of a principle that will practically disfranchise hundreds
of men who temporarily leave their homes to follow pursuits requiring
them to travel from place to place. Such men habitually go home to
vote, especially at Presidential elections. They will travel hundreds
of miles to exercise that privilege, and are too honest to vote where
they can not legally do so. This is manifestly one of this class of
cases, and there are others like it which appear in this record.
(c) The vote of Moses Atkinson also caused division in the committee,
as he divided his residence between a ranch and a hotel, and this
raised a question as to the words in the statute as to residence of one
who came into a precinct for ``temporary purposes only.``
(d) The law \1\ of California provided:
A person must not be held to have gained or lost residence by reason
of his presence or absence from a place while employed in the service
of the United States or of this State.
F. C. Kelley, in the signal service of the United States Army, came
to Campo in March, 1875, in the course of that service, and voted on
November 7, 1876.
-----------------------------------------------------------------------
\1\ Art. II, sec. 4, of California Const. of 1879 has a provision
like this.
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He had never been to California until he went there in the United
States service. The report says:
Aside from the statutory provision, the well-recognized rule of law
governing in cases of this kind is this: ``That the fact that an
elector is in the Army does not disqualify him from voting at his place
of residence; but he can not acquire a residence so as to quality him
as a voter by being stationed at a particular place while in the
service of the United States. (People v. Riley, 15 Cal., 48; Hunt v.
Richards, 4 Kans., 549; Biddle v. Wing, Clark & Hall, 504; McCrary,
see. 41.)
The person in question, having gone to California in the military
service of the United States, his legal residence remained at the place
of enlistment, and he could not acquire a residence in California while
in that service. His vote must be rejected. He testified that he voted
for Mr. Pacheco, and upon this point there is no dispute.
The minority did not dissent from this conclusion.
929. The case of Wiggington v. Pacheco, continued.
A person brought to a place. by committal to jail and followed by his
family nevertheless did not acquire a voting residence.
Regular naturalization papers, attacked by parol proof that they were
obtained by fraud, were held to justify the vote given by the bearer.
As to the degree of evidence required to prove the ballot of a
disqualified voter who does not testify to his own vote.
It being impossible to prove how a disqualified voter cast his
ballot, the vote was not deducted.
(e) A similar principle is invoked in the case of Pedro Parris:
Pedro Parris voted in Ventura precinct, Ventura County. On the 9th
day of June, 1876, he was a resident of Ojai or Canada precinct, in
that county. Was there arrested, charged with grand larceny, and on the
14th day of June was committed to the county jail, in default of bail,
to await the action of the grand jury. The jail was in Ventura
precinct, where he voted. After he was committed to jail his family
moved into Ventura precinct. He was released from jail within fifteen
days prior to the election. His vote was challenged but sworn in. It is
clear that he voted for Mr. Pacheco. The principle must be applied to
this person as was applied to Mr. Kelley already referred to.
(f) Thomas S. Methvin, a former resident, had moved to Arizona, with
his family, and the minority claim, that as he had gone there with no
purpose of returning, he had lost his residence and his vote should be
rejected. The majority, while admitting doubt as to residence, found
doubt also as to how he voted, and declined to reject his vote.
(g) contestant asked that the vote of John Peterson be rejected
because he was an alien, his naturalization papers having been
fraudulently procured. The fact that the papers were fraudulently
obtained appeared in testimony given by Peterson himself in the course
of this contest. The majority say:
His papers were issued by a court of competent jurisdiction, were
regular in every respect, and upon the evidence before the court at the
time the court decided rightly. Your committee are of the opinion that
papers issued in this manner can not be attacked in a collateral
proceeding. And if this could be done, Peterson's oath would have
little weight in such a contest, for he either swore falsely before the
court or in the contest. He was corroborated before the court, but his
evidence in the contest denying his citizenship stands unsupported.
The minority join issue sharply, saying:
Now, here is a clear, palpable case of procuring fraudulent
naturalization papers. In the majority report the singular doctrine is
asserted that because these papers were issued by a court of competent
Sec. 929
jurisdiction and were regular on their face, they can not be ``attacked
collaterally;'' that is to say, if, by means of perjury, a man can
commit a fraud upon the court and upon the law, and thereby get his
papers, he can get the benefit of that fraud, and when he presents
himself as a voter his vote must be received. Just what is meant by the
majority by saying that the papers can not be attacked collaterally is
not very clear. We can conceive of nothing that can be meant except
that somebody would have to go into court and in a direct proceeding
set aside the papers for fraud. We can not believe that this House will
ever indorse such a preposterous doctrine. The rule of law is stated by
McCrary, section 21, just the reverse of what is here ruled by the
majority. Parol evidence is competent to prove the fraud, and when it
is proven the vote is rejected. This was dearly an illegal vote for
Wigginton and must be rejected.
(3) Certain questions arose as to how sundry voters cast their votes,
it being essential to determine from whom to deduct the illegal votes.
(a) As to Charles Gilbert, a witness testified that Gilbert always
said he was a Republican, asked for a Republican ticket, took one,
folded it as the law required, and, in witnesses's ``honest belief,''
voted it. The majority say:
In the absence of the voter's own evidence, it would be difficult to
prove more certainly than is done in this case for whom a person voted.
A person can not be compelled to state for whom he voted; and the
Supreme Court of the United States has expressly decided that where a
witness can not be compelled to answer he need not be called. (6
Peter's Repts., 352, 367.) But Mr. Pacheco might have called the voter,
and if he had not claimed his privilege he could have made it clear for
whom he did vote. Mr. Pacheco not having done so, nor having shown his
inability to procure his deposition, we may infer that Gilbert, if
produced, would have corroborated the witness whose deposition is in
the record. Gilbert did not reside in the precinct where he voted, and
his vote must be rejected.
The minority dissent.
Again, this evidence does not prove that Gilbert voted for Pacheco.
The substance of the evidence is that he associated with Mitchell, a
Democrat; that he took a Republican ticket and folded it up, and the
witness says he honestly believes he voted, although no witness
testifies that he did vote.
The logic of the majority on this subject in respect of this vote is,
to say the least, singular. There is an evident feeling that the proof
is weak and needs propping to make it stand, and this singular argument
is presented: ``The contestant could not prove how the voter voted any
better, except by calling him as a witness; but if he called him as a
witness, he was not bound to testify for whom he cast his vote. If he
could not be compelled to answer, he need not be called.'' Then the
majority proceed to say: ``But Mr. Pacheco might have called the voter,
and if he did not claim his privilege, he could have made it clear for
whom he did vote.'' And not having called him, the inference is drawn
that Gilbert would have corroborated the witness whose deposition is in
the record. It is unnecessary to comment on this. It is quite as fair
to infer that, from the fact that contestant did not call Gilbert, he
knew that Gilbert would not corroborate the other testimony as to
residence or voting, and it is certainly quite as incumbent on the
contestant to produce the voter as a witness as upon the contestee--
more so, indeed, for on the contestant rests the onus.
Hence we say that there should not be deducted from Pacheco a vote on
account of Charles Gilbert.
(b) The minority held that the evidence did not show for whom J. A.
Scott voted, and that for this reason, as well as the reason that his
residence was established, urged that his vote should not be deducted.
He was on the register of voters, and the minority held that the
evidence was not sufficient to show that he was not a legal voter.
But the majority held otherwise.
1. He was not a legal voter. It was stated in the evidence that he
was a Republican, and was ``voted'' by those who were working for Mr.
Pacheco. Mr. Scott's deposition was taken by Mr. Pacheco's attorney. He
was not asked how he voted. The proof that he voted for Mr. Pacheco is
sufficient to shift
Sec. 930
the burden upon the party seeking to sustain his vote, and inasmuch as
the elector was produced and sworn and no effort was made to show for
whom he voted, it may be assumed from all the evidence that he voted
for the sitting Member. (McCrary, secs. 293, 294; Cushing's American
Parliamentary Law, secs. 199, 210.)
(c) An issue was joined as to how Jesus Yorba voted. The majority
say:
Jesus Yorba voted in San Diego, but was a resident of Los Angeles. It
is alleged that he voted for Mr. Wigginton. It is proven that he had
not resided in the precinct where he voted thirty days previous to the
election. But the evidence is conflicting as to the candidate for whom
he voted. Yorba, was a Democrat and went to the polls and voted with
one Angle Smith, also a Democrat. Yorba was what is called ``a native
Californian,'' and Smith was a half-breed American and Californian. It
was proven that the native Californians, as a class voted for Mr.
Pacheco, including those who claimed to be Democrats, and were
unwilling to acknowledge that they would vote for a Republican. And one
witness gave it as his opinion that Jesus Yorba, voted for Mr. Pacheco.
In the midst of this conflicting evidence it is not certain for whom he
did vote. His vote, although illegal, can not be deducted from the vote
of either of the parties. (Record, pp. 99, 100, 101, 104, 107.)
The minority contended:
The proof is that he was a Democrat and was voted by Angle Smith, a
strong Democrat, who was actively supporting Wigginton, and
electioneered for Wigginton all day. According to all rules on the
subject this would be sufficient to establish that he voted for
Wigginton. Certainly, according to the ruling of the majority in some
of the cases presented by the contestant, it is amply sufficient. The
reason given by the majority for holding that the proof will not
warrant finding that he voted for Wigginton is that he was a native
Californian, and it is asserted that they as a class voted for Pacheco.
But that will not suffice, for it does not appear that they as a clam
we Democrats. If that were clearly proven, the proposition would not be
without some force. But even then it is fully answered by the fact that
Angle Smith, who was a Democrat, who voted for Wigginton and
electioneered for Wigginton and went to the polls with Yorba, was one
of these same natives--a half-breed American and Californian.
This is an illegal vote for Wiggington, and should be deducted.
(d) Witnesses testified that Gustave O. Perret, who voted without
being naturalized, was in consultation with Democratic leaders just
before he cast his ballot, that a distributor of straight Democratic
tickets gave him his ballot, but could not swear that he cast that
ticket. The minority, without arguing the question, held that this vote
should be rejected from among the votes credited to contestant.
The majority report contended that while there was doubt about
Perret's right to vote, it was not shown for whom he voted.
930. The case of Wigginton v. Pacheco, continued.
The entry of the fact of challenge on a ballot by election officers
was not held to be a distinguishing mark justifying rejection of the
ballot.
Discussion as to what constitutes a distinguishing mark when made by
the voter on his own ballot.
Violation of a law that no tickets should be folded or exhibited near
the polls did not invalidate the election.
A voter may not, by subsequent oral testimony, contradict the plain
expression of the ballot, although circumstances corroborate the
testimony.
Ex parte affidavits were not admitted, even to prove lost testimony
valid in form.
(4) As to distinguishing marks on ballots, certain questions arose.
Sec. 930
(a) The majority thus set forth a position from which the minority do
not dissent:
The law of California on the subject of marked ballots is as follows:
``Sec. 1206. When a ballot found in any ballot box bears upon the
outside thereof any impression, device, color, or thing, or is folded
in a manner designed to distinguish such ballot from other legal
ballots deposited therein, it must, with all its contents, be
rejected.''
There were six ballots voted for Mr. Pacheco upon which the judges of
election indorsed the names of the voters and the words ``Challenged
because not in the precinct thirty days--challenge disallowed,'' and
then signed one or two names of the inspectors of the election. While
the strict letter of the law would exclude these ballots, yet the
spirit of the law is evidently otherwise. If the voter had placed this
indorsement upon the ballot, or any mark whatever by which it could be
distinguished from other ballots, they should be rejected. The law was
made to protect the voter, and not to disfranchise him.
(b) In a similar case the majority say:
George M. Clark voted for Mr. Wigginton at San Diego. He wrote his
own name on the bottom of the ticket with a lead pencil. (Record, pp.
100-105.) The law of California in reference to marked ballots is as
follows:
``Sec. 1206. When a ballot found in any ballot box bears upon the
outside thereof any impression, device, color, or thing, or is folded
in a manner designed to distinguish such ballot from other legal
ballots deposited therein, it must, with all its contents, be rejected.
``Sec. 1207. When a ballot found in any ballot box bears upon it any
impression, device, color, or thing, or is folded in a manner intended
to designate or impart knowledge of the person who voted such ballot,
it must, with all its contents, be rejected.''
These provisions were evidently intended to secure to the voter
absolute secrecy as to his ballot, and to place it within his power to
vote a ballot which could not be distinguished by the election
officials, the challengers, or outsiders from any other ballots that
were being voted. Section 1206 relates wholly to marks on the outside
of the ballot, and can not be applied to the ballot in question, as it
is conceded that this voter wrote his name on the face of the ballot.
And it is very doubtful whether the strict letter of the other section
(1207) applies to Clark's ballot. There was nothing on the face of the
ballot ``to designate or impart knowledge of the person who voted such
ballot.'' The inspectors were not authorized to presume that Clark
voted this ticket merely because they found his name upon it. If any
presumption is to be indulged in, it is this: That the name written on
the ballot was intended to be voted for, instead of the printed name
next above it. Hence this ballot had nothing on it to designate or
impart knowledge of the person who voted it. The person who voted it
could identify it, and so could every voter identify his ticket if he
had scratched one name and written another upon it. He would recognize
his own handwriting. But the statute was not intended to place it out
of the power of each voter to recognize his own ballot. It was intended
to protect the voter in his right to vote a secret ballot. If there
were any doubt as to the letter of the law, there can be none as to the
spirit of it. There is no charge or suspicion of fraud, intimidation,
or improper influences being exerted over the voter. It would certainly
be perfectly legal for the voter to publish how he voted. The evidence
in this case fails to disclose what was done by the inspectors with
Clark's ballot. Nothing is said as to whether they counted or rejected
it.
The minority take issue with this position:
This man wrote his name on his ballot for the express purpose of
imparting knowledge of the fact that he voted that particular ballot.
It is clear that under the statute of California that ballot should
have been rejected. We quote the statute:
``Sec. 1207. When a ballot found in any ballot box bears upon it any
impression, device, color, or thing, or is folded in a manner to
designate or impart knowledge of the person who voted such ballot, it
must, with all its contents, be rejected.''
The evidence that he voted for Wigginton is distinct and emphatic. It
was a marked ballot, Clark having written his name on it, so that it
could be known that he voted it.
The following uncontradicted testimony makes these things clear:
``Q. Do you know George M. Clark, of the first ward?--A. I do.
Sec. 930
``Q. Please state whether or not George M. Clark voted at the first
ward precinct in this city on the 7th November, 1876.--A. He did.
``Q. For whom did he vote for Congressman?--A. For P. D. Wigginton.
``Q. If there was any mark upon his ballot at the time he voted which
would distinguish it from other ballots after it was deposited in the
box, please state what that mark was.
``(Objected to by attorney for Wigginton, on the ground that it
presumes that the witness knew whether or not the ballot had a private
mark on it at the time it was deposited in the ballot box, and on the
ground that there has been no evidence offered or given tending to show
that the witness possessed any such knowledge or information.)
``A. There was; his name was written on the bottom of the ticket.
``Q. If Clark said anything about it at the time he deposited the
ballot, tell what he said.--A. He did. He had come to the polls two or
three times to vote, and when near the polls James McCoy took him away;
he came again just before the polls closed and voted; he then said that
he had written his name on the ticket so that old Jim would know that
he had not voted against his wishes.
``Q. If you were acting in any official capacity on that day, please
tell what it was.--A. I was; I was one of the judges of election.''
Thus it is apparent that this voter put this mark, his name, on the
ticket for the express purpose of imparting knowledge of the person who
voted it, bringing the case exactly within the provisions of the
statute above quoted.
But the majority say that the name was written on the face of the
ballot. Now, read again the statute and see if that makes any
difference. The statute is, ``when a ballot found in any ballot box
bears upon it any impression,'' etc. It makes no kind of difference
where that impression is placed. When such a ballot is found it must be
rejected. If the device or impression were upon the back, as would seem
to be the interpretation of the majority, then the ticket need not find
its way into the box because it could be detected or seen before it
went in; but it is clear that no matter where it is placed on the
ballot, when such ballot is found it is to be rejected.
(5) As to certain irregularities the majority say, apparently with
the concurrence of the minority:
The contestant alleges that there were such illegal practices at this
precinct as to invalidate the whole poll. The law of California
requires that no tickets shall be folded or unfolded or exhibited
within 100 feet of the polls. This was done during the whole day at
this precinct. But while the parties who violated the law may be
punished, the law was not intended to provide that such conduct should
invalidate the election. We can not see any good reason for rejecting
this poll.
(6) As to the validity of a ballot the majority, apparently with
assent of the minority, find as follows:
Pablo Rios voted at Wilmington, Los Angeles County. He arrived at the
polls late in the day, and fearing they would soon be closed, took the
first ticket he could find. It was a Democratic ticket, but he did not
desire to vote for any person on that ticket except for George Hinds
for supervisor of the county. He erased all other names on the ticket,
and wrote Mr. Pacheco's name on the top at the righthand side, opposite
the names of the Presidential electors, which were erased. The judges
returned this ballot as a vote cast for R. Pacheco for Presidential
elector, and did not count it for him for Representative in Congress.
Rios was called, and testified that he intended to vote for Pacheco for
Representative in Congress. The evidence is that the names on the
ballot, except that of Hinds, were erased, but there is no evidence
that the words ``for Presidential electors,'' or the words ``for
Representative in Congress,'' were erased. Upon the face of the ballot,
according to the evidence, Mr. Pacheco was voted for for Presidential
elector. There is no ambiguity about this. The law of California, in
reference to counting obscure ballots, is as follows:
``Sec. 1201. No ballot or part thereof must be rejected by reason of
any obscurity therein in relation to the name of the person voted for,
or the designation of the office, if the board, from an inspection of
the ballot, can determine the person voted for and the office
intended.''
An inspection of this ballot would show that the name of R. Pacheco
appeared after the words ``for electors of President and Vice-President
of the United States.'' Can such a ballot be counted for the
Sec. 931
contestee for Representative in Congress, or is it admissible for the
voter to explain or contradict such ballot by final evidence after it
has been cast? Mr. McCrary, in his work on elections (sec. 407), states
the rule which should govern in cases of this kind as follows:
``While it is true that evidence aliunde may be received to explain
an imperfect or ambiguous ballot it does not by any means follow that
such evidence may be received to give a ballot a meaning or effect
hostile to what it expresses on its face. The intention of the voter
can not be proven to contradict the ballot or when it is opposed to the
paper ballot which he has deposited in the ballot box.'' (See also
People v. Seaman, 5 Denio, 409; State v. Goldthwait, 16 Wis., 552;
People v. Fegurson, 8 Cowen, 102; People v. Cook, 14 Barbour, 259.)
When a ballot clearly designates the office to be filled and the name
of the person voted for, no court has ever permitted the voter to
contradict his ballot by evidence that he intended to vote for a
different person, or for the same person for a different office.
Your committee do not feel at liberty to depart from the unbroken
line of precedents in cases of this kind, although it is conceded in
this case that the rule works a hardship to the voter. It is sometimes
necessary to sacrifice the merits of a case in order to maintain an
inflexible legal rule. This ballot seems to present such a contingency.
(7) The report thus disposes of a question of evidence:
The contestant alleges that two persons by the name of Smock and
another whose name is not given voted at Bakersfield, Kern County, for
Mr. Pacheco, who were not residents of the precinct for thirty days
preceding the election. Depositions were taken in regard to these
persons, in pursuance of notice in the contest, in due time, attorneys
of both parties being present, and such depositions were properly
forwarded by mail to the Clerk of the House of Representatives. But
these depositions have never been received by the Clerk or any officer
of the House. The contestant has obtained the ex parte affidavits of E.
E. Calhoun, who was contestant's attorney, and of Samuel L. Cutter, who
was contestee's attorney, at the taking of these depositions (Record,
pp. 94, 95, and 96), which affidavits, sworn to October 18, 1877, after
the assembling of the special session of Congress, set forth the
substance of the lost depositions. If we were to consider as legal
evidence these ex parte affidavits, one of them made by Mr. Pacheco's
attorney, we should be compelled to reject the votes of these three
persons. But we are not permitted to consider ex parte affidavits as a
part of the evidence in the case.
The report further says that if the lost depositions were essential
to the decision of the case, the contestant's remedy would have been to
retake the depositions, giving due notice to the opposite party.
Thus this case turned principally on the disposition of 10 votes over
which there was a division in the committee. The majority, as a result
of their conclusions, found a majority of 4 votes for contestant, and
reported that he was entitled to the seat.
The minority \1\ found for sitting Member a majority of 6 votes.
The report was debated at length in the House on February 6 and 7,
1878 \2\ and on the latter day a proposition of the minority to confirm
the title of sitting Member was disagreed to, yeas 126, nays 137.
Then a proposition to declare the seat vacant was disagreed to.
The question recurring on the resolutions of the majority giving the
seat to the contestant, they were agreed to, yeas 136, nays 125.
The contestant, Mr. Wigginton, then appeared and took the oath.
931. The Massachusetts election case of Dean v. Field, in the Forty-
fifth Congress.
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\1\ Minority views filed by Mr. Sohn T. Wait, of Connecticut. The
differences over the 10 votes were not on strictly party lines.
\2\ Journal, pp. 379, 384-387; Record, pp. 803, 826-837.
Sec. 931
There being no doubt for whom the ballots were intended, the word
``fourth'' instead of ``third,'' in the description of the
Congressional district, did not invalidate the votes.
If the count of election officers is to be set aside by a recount,
the petition for the recount should set forth specifically the reasons.
Discussion as to whether or not a result corroborated by Federal
supervisors might be set aside by a recount by State officials.
Discussion as to the clause of the Constitution under which Federal
supervisors of elections acted.
On February 21, 1878,\1\ Mr. William M. Springer, of Illinois,
submitted the report of the majority of the committee in the contested
election case of Dean v. Field, of Massachusetts. This report, so far
as its reasoning was concerned, was not concurred in by all the
majority of the committee, since Mr. John T. Harris, of Virginia,
chairman of the committee, and Mr. J. N. Williams, of Alabama, while
sustaining the conclusion, expressly withheld assent to all the
propositions therein set forth. Their dissent referred especially to
the position taken in the report as to Federal supervisors.\2\
Sitting Member had been returned by an official majority of 5 votes
over contestant.
As a part of that majority, but not involved in controversy, were 25
ballots thus discussed in the majority report:
In the Eighteenth Ward of the city 25 ballots were cast designating
the Congressional office and candidate as follows:
``For Representative in Congress, Fourth district, Walbridge A.
Field, of Boston.''
The election was held in the Third district, and Mr. Field resided in
the district in which he was a candidate. Ought these ballots to be
counted for the sitting Member? The questions involved in this point
were ably discussed by counsel on both sides, and the authorities do
not agree to such an extent as to leave the question entirely free from
doubt. But your committee are of the opinion that a liberal
interpretation of the law in the interest of enlarged suffrage and the
honest intentions of electors would warrant us in counting these
ballots for the candidate for whom they were evidently intended.
The election was in the Third district. The electors of that district
had no legal right to vote in the Fourth district, much less to vote in
the Third district for a Representative for the Fourth district. We
must assume, then, that the persons who cast these ballots intended no
violation of law, but that they were acting in good faith and were
honestly endeavoring to express a choice for a Representative in
Congress in the district in which they were entitled to vote. The
office to be filled was that of ``Representative in Congress.'' That is
what the voter must have looked to when examining his ballot. The words
``Fourth district'' do not constitute a part of the legal designation
of the office, and in this case we are inclined to regard the erroneous
designation of the number of the district as surplusage.
The minority took the same view:
In the Eighteenth Ward of the city 25 ballots were cast designating
the Congressional office and candidate thus:
``For Representative to Congress, Fourth district, Walbridge A.
Field, of Boston.''
These 25 ballots were counted for Mr. Field as Representative to
Congress from the Third district, both by the ward officers and the
board of aldermen, and are necessary to the election of Mr. Field. The
contestant avers that these votes were improperly and illegally counted
for Field. They were legally counted if they clearly indicate the
office for which the person is designed, and the intention
-----------------------------------------------------------------------
\1\ Second session Forty-fifth Congress, House Report No. 239; 1st
Ellsworth, p. 190.
\2\ The minority views were presented by Mr. Milton A. Candler, of
Georgia, a member of the majority party in the House.
Sec. 931
of the voter as to that person can be ascertained from the ballot.
Evidence may not be received to contradict the ballot nor to give it a
meaning when it expresses no meaning of itself; but if it be of
doubtful import, the circumstances surrounding the election may be
given in evidence to explain it and get at the intent of the voter.
(McCrary's Law of Elections, p. 299.) The office to be filled was
Representative in Congress. The words ``Fourth district'' constitute no
part of the designation of that office. The way it happened that the
words ``Fourth district'' had been printed upon these ballots was
explained by the person printing them, that he had neglected to take
from his printing press the type containing these words, which had been
used for printing ballots for Representative in Congress in the
adjoining Fourth district. Walbridge A. Field was the candidate for
Congress in the Third district; he resided in that district. There was
no other Walbridge A. Field residing in that district or in the city of
Boston. The ballots were cast in the Eighteenth Ward and Third
district, and by law could only be cast by persons residing in that
ward and district. Clearly, then, from these ballots and the evidence
showing by whom they were cast, and the circumstances under which cast,
it appears that they were cast for Walbridge A. Field, one of the
candidates for Congress in the Third district for Representative in
Congress from that district. The words ``Fourth district'' not
rendering uncertain the office intended to be designated or the person
voted for, we think that these 25 votes were legally counted for Field
as Representative to Congress from the said Third district.
The issues in this case arose entirely over a recount of the votes by
a committee of the Boston board of aldermen.
The Third district was situated entirely within the city of Boston.
On the evening of election day the ballots were counted by the officers
of the several wards in accordance with law. The results were then
transmitted, with all the ballots and papers, to the city clerk. The
majority report says:
These provisions of the law were strictly complied with, and there is
no allegation of fraud, illegality, or irregularity of proceedings in
conducting the election up to and including the canvass of the votes
and transmission of the result by the ward officers. But it is alleged
that the ward officers committed errors in making the count, and on
account of these alleged errors the contest arises in this case.
There were three counts of the votes cast for Representative in
Congress from the district in question. The first count was that made
by the ward officers; the second was that made by the United States
supervisors of election, appointed in pursuance of sections 2011 and
2012 of the Revised Statutes of the United States; and the third count
was made by a committee of the board of aldermen of the city of Boston.
We have already pointed out the manner in which the first count was
made. The second count was made by two supervisors of election
appointed for each ward by the circuit court of the United States for
the circuit in which the city of Boston is situated. These supervisors
were appointed upon the recommendation of the respective candidates for
Congress, or their friends, and were ``of different political
parties,'' as the law of Congress requires. They attended the election
in each of the wards and personally supervised the election and the
count of the votes, and counted those cast for Representatives in
Congress. Section 2017 of the Revised Statutes of the United States
makes it the duty of supervisors of elections to attend the election,
count the votes, and remain with the ballot boxes until the count is
wholly completed. They performed their duty and made return of the
result to the chief supervisor of the election, as required by law.
The counts made by the ward officers and the United States
supervisors substantially agree.
The count of the ward officers and the United States supervisors gave
Dean, the contestant, a majority of 7 votes over Field. The count of
the committee of the aldermen reversed the result, and found a majority
of 5 votes for Field.
This recount by the aldermen was based on the following statute of
Massachusetts:
Sec. 4. If within three days next following the day of any election
ten or more qualified voters of any ward shall file with the city clerk
a statement in writing that they have reasons to believe that the
returns of the ward officers are erroneous, specifying wherein they
deem them in error, said city
Sec. 931
clerk shall forthwith transmit such statement to the board of aldermen
or the committee thereof appointed to examine the returns of said
election. The board of aldermen, or their committee, shall thereupon,
and within five days, Sunday excepted, next following the day of
election, open the envelope and examine the ballots thrown in said
ward, and determine the questions raised; they shall then again seal
the envelope, either with the seal of the city or a seal provided for
the purpose, and shall endorse upon said envelope a certificate that
the same has been opened and again sealed by them in conformity to law;
and the envelope, sealed as aforesaid, shall be returned to the city
clerk. Said city clerk, upon the certificate of the board of aldermen
or their committee, shall alter and amend such ward returns as have
been proved to be erroneous, and such amended returns shall stand as
the true returns of the ward.
In accordance with this law a recount was had in response to a
petition as follows:
To the city clerk of the city of Boston:
The undersigned, qualified voters of Ward 13, in the Third
Congressional district, hereby state that they have reason to believe
that the returns of the ward officers of said ward for Member of
Congress in said Congressional district, at the election of November 7,
1876, are erroneous, in that all the ballots cast for Walbridge A.
Field as Member of Congress were not counted and credited to him, and
that more ballots were credited to Benjamin Dean as Member of Congress
than were cast for him; and they ask for a recount of the vote of said
ward for Member of Congress, in accordance with the provisions of
section 4 of chapter 188 of the acts of the year 1876.
(Signed by 15 voters of the ward.)
The recount was made by a committee of three aldermen, two of whom
were of the political party to which contestant belonged, and they
found enough of what they considered errors to change the result of the
ward counts.
This recount was objected to for two main reasons:
(1) Because it was not properly procured under the laws of
Massachusetts, in that the petitioners did not specify wherein they
deemed the returns in error.
The statement required by the 10 qualified voters must specify
wherein the returns are in error. It is not sufficient to allege
generally that the count made by the ward officers was not correct, or
that they counted more votes for one candidate than he was entitled to,
or less votes for another than he received.
This petition constitutes the jurisdictional fact in the case, and
unless it complies with the statute no jurisdiction is conferred on the
board of aldermen, or upon their committee, and all proceedings by them
not founded on a petition which complies with the statute are utterly
void and of no effect. The rule of law applicable in such cases is well
established. McCrary, in his treatise on the American law of elections
(sec. 280), says: ``An application for a recount of ballots cast at an
election will not be granted unless some specific mistake or fraud be
pointed out in the particular box to be examined. Such recount will not
be ordered upon a general allegation of errors in the count of all and
giving particulars as to none of the boxes.'' (Kneass's case, 2
Parsons, 599; Thompson v. Ewing, 1 Brewster, 67, 97.)
In Skerret's case (2 Parsons, 509) the court of common pleas of
Philadelphia held that the true rule ``regulating such proceedings
should be defined, so as to advance on the one hand substantial and
meritorious and to arrest on the other futile and querulous complaints.
It is not sufficient to state generally that A received a majority of
votes, while the certificate was given to B, and therefore the
complainants charge that there was an undue election. This is but a
conclusion, and it is not for the pleader to state conclusions, but
facts from which the court may draw conclusions. If fraud is alleged,
the petition must state the manner in which the fraud was committed,
the number of votes fraudulently received or fraudulently rejected.
(See Carpenter's case, 2 Parsons, 537; Lelar's case, 2 Parsons, 548;
Kneass's case, 2 Parsons, 553.)
It was held also by the supreme court of Pennsylvania, in the case of
Gibbons v. Shepherd (2 Brewster, p. 2), that certainty to a common
intent was required, that the petition should not be so loosely drawn
as to permit the powers of sworn officers chosen by the people to be
inquired into with-
Sec. 931
out well-defined cause. McCrary, in section 283 of his work, says:
``The same rule should be applied to a pleading of this character that
is applied to all other similar pleadings. It should state in a legal
and logical form the facts which constitute the ground of the
complaint. Nothing more is required, nothing less will suffice.'' The
supreme court of Illinois (1 Breese, 285) held ``that an affidavit for
a writ of attachment which does not comply with the statute confers no
jurisdiction, and all subsequent proceedings are void.'' As the fourth
section of the Massachusetts act is held to confer the jurisdiction
upon the board of aldermen to count these votes upon the filing of a
petition specifying the errors, if such petition does not comply with
the statutes no jurisdiction is conferred.
The right of the board of aldermen or their committee to examine the
ballots is not to be exercised except in certain cases and in the
manner provided by the law above referred to. The statute gives no
general right to substitute an aldermanic count for a ward count.
The majority further quoted a report of the city solicitor of Lynn,
the Massachusetts legislative cases of Morse v. Lonnergan, etc.
The minority hold that the language of the petition was sufficient.
The complaint to be made is not as to the manner in which the
election by the ward officers has been conducted, it does not go to any
wrongful act of these officers, but is directed specifically to the
ascertained result, the returns made by these officers. The object to
be accomplished is to have an examination and count of the ballots by
the board of aldermen. The complaint can only be as to the result of
the count of the ballots by the ward officers.
This specification of error is to be by persons who were in no way
connected with the count of the ballots; by persons who cast the
ballots and who have reason to believe that there has been error in
their count.
Statements by such persons could hardly be more specific than those
filed in this case, ``that all the ballots cast for Walbridge A. Field
had not been counted and credited to him, and that more ballots had
been credited to Benjamin Dean than were cast for him.''
It is the opinion of your committee that these statements were
sufficient in law to authorize the examination and count of the ballots
cast in the several words by the board of aldermen.
(2) Because the Federal election law was supreme, and the result of
the supervisor's count might not be reversed by the intervention of a
recount authorized and conducted solely under State law.
The majority report went quite fully into this branch of the case,
but there was dissent among the majority members on the committee, and
also on the floor by members of the majority party in the House. A
member of the minority party, Mr. Benjamin F. Butler, of Massachusetts,
however, espoused on the floor the contention in favor of the
constitutionality and binding effect of the Federal canvass.\1\
The majority report says:
Congress, in pursuance of its constitutional power to make
regulations as to the times, places, and manner of holding elections
for Representatives in Congress, or to alter State regulations on these
subjects, enacted the foregoing provisions. They must be held valid and
binding upon all the States. From the moment of the enacting of these
provisions (February 28, 1871) they become a part of the election law
of the State of Massachusetts, overriding all opposing State statutes
made or to be made by the State, and the passage of the State law of
April 20, 1876, authorizing an aldermanic count, so far as it provided
for the taking of the final count of the votes for the Representative
in Congress out of the supervision and scrutiny of the United States
supervisors of election was an evasion if not a nullification of the
Federal law. After Congress had provided for the appointment of two
supervisors of election for each voting place, and had required such
officers to count the votes for Representative in Congress, and to
remain with the ballot boxes until the count was wholly completed, and
the certificates made out, it is not competent for any State to provide
another board of canvassers, who may take possession of the ballot
boxes, exclude the Federal officers, and secretly count the votes and
declare a different result.
-----------------------------------------------------------------------
\1\ On this point, see speeches of Messrs. Candler, Mills, Walsh, and
Butler, Record, pp. 1792, 2039, 2046, 2084.
Sec. 931
As the counting of the votes is now admitted to be the most important
function to be performed in reference to an election, laws relating to
this part of the election machinery must be strictly construed and
rigidly enforced. The count made by the aldermen was made in secret,
three or four days after the election, partly in the nighttime, and the
United States supervisors and all other persons except the three
aldermen were excluded from the room and were not permitted to see what
was being done. A count made under such circumstances is in derogation
of the acts of Congress and is of no validity whatever.
The minority, after quoting the sections of the Revised Statutes
(secs. 2011-2019) which were enacted as amendments to the act of May
31, 1870, ``to enforce the rights of citizens of the United States to
vote in the several States of this Union, and for other purposes,'' \1\
say:
These provisions of law were not enacted by Congress in pursuance of
its constitutional power to ``make or alter'' regulations as to the
manner of holding elections for Representatives in Congress.
They are not certainly to operate even to the supervision of an
election for a single polling place in a city or county which may
constitute only a part of an election district, but shall only operate
when a certain number of citizens shall make known in writing to a
United States judge their desire to have the election ``guarded and
scrutinized.''
The manner of holding such an election is in no way regulated.
These officers are designated as ``supervisors of elections.'' They
are appointed by the judges of the Federal courts as instruments in the
process of ``enforcing the rights of citizens of the United States to
vote in the several States;'' not managers of an election, but
guardians and scrutinizers of an election managed by others, officers
of the States.
They are to attend at all times and places for holding elections for
Representatives in Congress and for counting the votes at such
elections in order that they may challenge votes and inspect and
scrutinize the manner in which the voting is done, but they are not to
receive or decide upon the legality of any vote or regulate the manner
in which the voting is done. On the day of election and at the places
of holding the election they are to take, occupy, and remain in such
position as will best enable them to see each person voting, scrutinize
the manner in which the voting is being conducted, and at the closing
of the polls they are to put themselves in such a position in relation
to the ballot boxes, for the purpose of engaging in the work of
canvassing the ballots, as will enable them to fully perform their
duties in respect to such canvass herein provided, but they are not to
be in position enabling them to receive a vote, conduct an election, or
control a ballot box.
Each of these supervisors is required ``personally to scrutinize,
count, and canvass each ballot in their election district cast;'' not
as a board of election managers, to ascertain the number of ballots
cast and for whom cast, and as such board to make returns thereof to
the State officer who shall certify that result, or the House of
Representatives, who shall judge of that return; but each one
personally is to scrutinize, count, and canvass each ballot cast in his
voting precinct, and make ``such certificate and return of all such
ballots'' as may be directed and required by the chief supervisor from
whom he received his appointment. They make returns only of what they
have seen in the management of the election to the chief supervisor
appointed by the judge of the circuit ``in order that the facts may
become known.'' ``Become known'' through these supervisors, these
witnesses for the courts having jurisdiction of the offenses created in
these acts, enacted to ``enforce the rights of citizens of the United
States to vote in the several States of the Union, and for other
purposes.''
Further than the returns made, which do not in terms show a count
made by these supervisors, except as to the returns from the Eighteenth
Ward, the evidence does not show that the supervisors counted the votes
in the wards comprising the election district. So that, in the
determination of the value of those returns as evidence in this case,
their only value is in their official character.
The undersigned, believing that they are not counts made and results
ascertained in pursuance of any law made ``to regulate the manner of
holding elections for Representatives in Congress,'' hold that they are
insufficient to set aside the result found in this case according to
the law of the State of Massachusetts, the certified return of the
board of aldermen.
-----------------------------------------------------------------------
\1\ The Federal election laws have since been repealed.
Sec. 932
(3) The majority of the committee also endeavored to show that the
committee of aldermen did not follow the law in making their recount;
but the minority joined issue on this question of fact.
In accordance with their conclusions the majority reported
resolutions declaring contestant entitled to the seat.
The report was debated at length in the House and with a considerable
breaking of party lines on March 14, 15, 26, and 27, 1878,\1\ and on
the latter day the question was taken on substituting the minority
resolutions, which affirmed the title of sitting Member, for the
majority resolutions, which proposed to award the seat to the
contestant. On this vote there appeared yeas 120, nays 119, whereupon
the Speaker voted in the negative, and the vote stood yeas 120, nays
120. So the motion to substitute failed.
On March 28 the question recurred on the resolutions proposed by the
majority, and there appeared yeas 123, nays 123, whereupon the Speaker
voted in the affirmative, making yeas 124, nays 123, so the resolutions
were agreed to.\2\
Thereupon Mr. Dean, the contestant, appeared and took the oath of
office.
932. The Florida election case of, Finley v. Bisbee in the Forty-
fifth Congress.
Officers of election being guilty of frauds and forgeries, the
returns were rejected.
Returns being rejected for fraud by election officers, no act of the
said officers may be admitted as proof aliunde of the vote.
Returns being rejected, the evidence of the voters as to how they
voted is not always accepted in proving the vote aliunde.
A contestee was not allowed the votes he proved aliunde when
contestant, because of uncertainty of proof, could not be credited with
any of the votes he undoubtedly received.
Both the returns and the vote were rejected in a case wherein
contestee's proof aliunde gave him a greater vote than was returned by
a dishonest election board favorable to him.
The testimony of a voter as to what ballot he cast depends for its
value on the intelligence of the witness.
On February 5, 1879,\3\ Mr. Thomas R. Cobb, of Indiana, from the
Committee on Elections, submitted the report of the majority of the
committee in the Florida case of Finley v. Bisbee. In the first session
of the Congress, at the organization of the House on October 15,
1877,\4\ the Clerk had announced that while there had been certain
legal proceedings in regard to the returns, Mr. Bisbee plainly had the
prima facie certificate, and therefore had been enrolled.
The precinct returns were conceded by both parties to show the
election of the contestant, Finley, by a majority of 5 votes, but the
canvassing board had found from the returns a result favorable to Mr.
Bisbee, and the certificate had been issued to him.
-----------------------------------------------------------------------
\1\ Record, pp. 1778, 1788, 2038, 2082-2095.
\2\ Journal, pp. 743, 746-748.
\3\ Third session Forty-fifth Congress, House Report No. 95; 1st
Ellsworth, p. 74.
\4\ First session, Record, p. 52.
Sec. 932
Three main questions arose in the determination of this contest, the
first of which was of especial importance. Indeed, in the reports and
debates it was quite generally claimed that this point was decisive,
although this was not admitted by all who discussed the question. The
points were:
(1) As to the vote of Archer precinct, No. 2, in Alachua County, both
parties to the contest admitted that the return was false and forged,
and that the officers of election were guilty of the frauds and
forgeries; and hence the committee were unanimous that these returns
should be rejected.
The returns being rejected, a question arose as to how the true vote
should be ascertained, provided it could be ascertained.
The contestant introduced testimony to show that the actual vote was
180 for Bisbee and 141 for Finley. The sheriff of the county was
present when the tally sheet was made up, and therefrom made a
memorandum which showed that result. Also announcement was publicly
made by an election officer of the vote for governor, showing a similar
party division. On the other hand, the clerk and one of the inspectors
of the election testified that the vote for Bisbee was 398 and for
Finley 137. The actual poll lists were extracted from the county
offices between the time of the canvasses of the votes and the
investigation of the case by Congress. The returns also disappeared.
The majority say:
At all events, they are not to be found; and in the opinion of your
committee they were destroyed by some of the conspirators to cover up
their crime. The poll list, tally sheet, and the return belonging to
said poll are gone.
Your committee is clearly of the opinion from the evidence that the
election at this poll is tainted with frauds, the returns false and
forged, whereby they showed that contestee got some 200 or 300 more
votes than were actually cast for him, which were canvassed and counted
for him by the returning boards.
Your committee is therefore compelled to go behind these fraudulent
returns and examine the evidence in the case, and ascertain the true
vote, if it can be done, from the evidence.
In view of the conflicting testimony, neither the majority nor the
minority believe that the state of the vote can be ascertained from the
testimony of witnesses as to the footings of the tally sheets or the
announcements of election officers. The minority thus voice the
position on this point:
We can not say that the officers of an election were false to their
trust--guilty of gross frauds--and for that reason reject their
returns, and at the same time say that the vote canvassed by them for
Mr. Finley, as shown by a tally sheet kept by them, is sufficient
proof, or any legal proof, that he received 141 votes at that poll. We
think that this position of contestant can not be maintained on any
principle of law or evidence. We cite the following authorities on this
question:
``When fraud or grow culpable negligence on the part of the officers
of an election is shown, all their acts and doings are rendered
unworthy of credit and must be disregarded.'' (See McCrary, sec. 303.)
``We repeat, therefore, the opinion expressed in a former chapter,
that a willful and deliberate fraud on the part of such an officer
being clearly proven, should destroy all confidence in his official
acts irrespective of the question whether the fraud discovered is of
itself sufficient to change the result. The party taking anything by an
election conducted by such an officer must prove his vote by evidence
other than the return.'' (McCrary, sec. 431.)
``Where the conduct of the election officers is such as to destroy
the integrity of the return, and to avoid the prima facie character
which they ought to bear as evidence, due and adequate proof must be
demanded of each vote relied on.'' (Opinion of the court in Mann v.
Cassada, 1st Brewster, p. 60. See also Thompson v. Ewing, a case from
Pennsylvania courts, reported in 1st Brewster, 107; Weaver v. Given,
1st Brewster, 140; Givens v. Stewart, 2d Brewster, p. 2; Jenkins v.
Hill, N. H. Reports, p. 144.)
Sec. 932
These well-settled principles show that contestant in a case like
this can not rely upon unofficial statements of the vote proven to be
false, or a tally sheet also proven to be false, to establish his vote.
Indeed, they go further and show that the returns being rejected for
gross fraud on the part of the election officers, he can not rely upon
any act of theirs, official or otherwise, to establish his vote.
A ``tally sheet'' is not mentioned in the laws of Florida. No such
paper is required to be kept or returned. If such a paper was produced,
it would be inadmissible as evidence, even if no question was made of
its having been falsely kept.
But contestant seeks to establish his vote at this poll by the
evidence of a witness who looked over such a paper and took down
certain figures from it. When he insists, and the committee concurs,
that the officer who kept it was so false to his trust and fraudulent
in his conduct that his return of this poll can not be accepted as the
truth, and when other and reliable evidence clearly shows that the
figures on said tally sheet were false, certainly nothing in the rules
of law and evidence will permit this.
A witness, Fleming, a member of contestant's political party, stood
at the poll with pencil and paper noting those who voted. His evidence
led the majority of the committee to believe that about 318 votes were
cast. The list of Fleming was put in evidence by contestant. The
minority views, signed by Messrs. Jacob Turney, of Pennsylvania, and J.
N. Thornburgh, of Tennessee (one a member of contestant's party and the
other belonging to the party of sitting Member), say:
Mr. Bisbee, having this list before him (the poll book at this
precinct was lost or mislaid), called 283 voters on Fleming's list, who
swear they, together with 8 others on this list, voted the full
straight Republican ticket, including for Congress Mr. Bisbee. This
would leave Mr. Finley 14 votes had he called the remainder of
Fleming's list, and they had sworn they voted for him. The testimony
does not show that there was but one Democrat among all the colored
voters at this precinct, and he was appointed inspector at this poll.
This clearly shows that the announcement made at the close of the poll,
that Mr. Finley received 141 votes, Mr. Bisbee 180, is not true.
In fact Mr. Bisbee produced in all witnesses to show that 308 voters
cast ballots for him. Mr. Finley, the contestant, proved no votes in
this way.
Therefore sitting Member claimed 308 votes at this precinct. The
minority views supported this claim strongly.
But the proof shows that an election was opened and held at a time
and place established by law by officers legally appointed to hold an
election at Archer poll, No. 2, and that many legal voters were there
and voted. In such cases we find that we are remitted to such other
evidence as may appear in the record to ascertain the vote for
contestant and contestee. We cite the following authorities on this
point:
``When a return is rejected, legal votes are not lost; they may be
proven by secondary evidence, and when thus proven maybe counted.''
(McCrary's Law of Elections, sec. 302.) ``In which case each candidate
must prove, by calling the voters as witnesses or otherwise, the number
of votes received by him.'' (Ibid., sec. 391.)
This rule was adopted, and the testimony of the voters held
conclusive, in the following cases: Reed v. Julian (2d Bartlett, 823,
828, 832); Washburn v. Voorhees (idem, 54, 60, 62, and 64); Lloyd v.
Newton, Clark's & Hall's R., 520; Vallandigham v. Campbell (1858) (1st
Bartlett, 223, 228, 229, and 230). See also report of Mr. Lamar, which
was adopted by the House; Reed v. Kneas (Brightly, 366, 371, 372).
In the case of The People ex rel. Judson v. Thatcher, reported in 7th
Lansing N. Y. Reports, the court held that the testimony of the voters
was higher evidence than the returns (pp. 280, 281, 282, and 286).
In the case of Washburn v. Voorhees, Hamilton Township was returned
voting as follows: Washburn, 143; Voorhees, 498. Washburn called the
voters themselves and showed that 27 more votes were cast for him than
were returned; the returns were set aside, and the evidence of the
voters taken establishing his vote. Mr. Voorhees, who received
according to the returns 498 votes, made no effort to establish his
vote. The evidence incidentally showed that four persons voted for him;
these only were counted for him. The committee, in citing the
authorities upon which they base their decision, say:
``But the rejection of a return does not necessarily leave the votes
actually cast at a precinct
Sec. 932
uncounted. It only declares that the return having been shown to be
false shall not be taken as true, and the parties are thrown back upon
such other evidence as is in their power to show how many voted and for
whom. So that the entire vote, if sufficient care be taken and the
means are at hand, may be shown and not a single one lost,
notwithstanding the return is rejected. It is found, as has already
been stated, that 170 votes were cast at this precinct for Mr.
Washburn. There was also the testimony of four persons that they voted
for Mr. Voorhees.''
In Reul v. Kneass, 584 (Brightly's L. Cases, 366, 372), the court, in
answering an objection urged to testimony of voter, said:
``Let the doctrine be once established as constitutional law that an
elector can not be heard in such a case to prove how he voted in order
to establish the falsity of an election return, and the suffrage of
every man in the country is placed under the control of the election
officers, who may make him appear to have voted exactly as they please.
According to this doctrine, if 500 out of 600 voters in a given
district should vote for one candidate and their votes should all be
returned as given to another, no adequate means exist in any body,
legislative or judicial, in the Commonwealth to relief against so
crying a wrong; for refusing to hear the testimony of electors to prove
how they voted, the establishment of fraud in such a case would be
impossible.'' (Brightly's L. Cases, 371, 372.)
In Vallandigham v. Campbell (1858) there were three reports, and the
report submitted by Lamar and signed by four Members was finally
adopted by the House. (1st Bartlett R., 223, 228, 229, 230.)
In this report of Lamar's there is an elaborate review of all the
authorities, English and American, upon the questions of the
admissibility of the declarations and testimony of voters as to their
qualifications and for which candidate they voted. (Id., 230.)
The majority of the committee combat this position.
But there is still another view of this question assumed by the
contestee. He insists that he has proven by 308 persons that they voted
for him at Archer, No. 2. He claims that he has proven this by the
mouths of the voters, outside of the returns, and that therefore he is
entitled to have them counted for him in case the returns are set aside
for fraud. And as the contestant has failed to introduce any witnesses
to testify that they voted for him at said poll, that therefore he,
contestant, is not entitled to have any votes counted for him at said
poll, thereby giving contestee 308 majority at said poll instead of 258
majority fraudulently returned for him by his political friends, thus
enabling him and them to succeed by their own wrongs to a greater
extent than their criminal acts standing alone would justify. But the
statements of these 308 witnesses will hardly sustain this assumption
by the contestee. A large number of them do not testify that they voted
for contestee, but that they voted the Republican ticket; many of them
could not read, as we have already said, and therefore they had to
depend upon others for the kind of tickets they voted, and were liable
to be deceived; but however this may be, your committee is of the
opinion that this view of the case can not be sustained under the
proof. The proof shows that contestant did get votes at said poll, and
that he probably got somewhere from 136 to 141. Your committee admits
that if there was no evidence other than the returns, they being
fraudulent and void, proving that the contestant received votes at said
poll, then it would be unquestionably right to count the vote clearly
proven to have been cast for contestee. But when the proof shows that a
large number of votes were, in point of fact, cast for one candidate,
as for the contestant in this case, but the number not being
sufficiently certain to enable them to be counted, it seems to your
committee to be manifest injustice to count the votes of his opponent,
thereby increasing his majority to the full number of votes so counted.
There is no rule of law or equity that will justify such action, but it
would be a clear case of uncertainty in the proof, and stands in the
same position as to uncertainty as the other positions assumed, and the
entire vote must be rejected.
Your committee has therefore come to the following conclusions as to
this precinct:
First. That the result of the election as shown by the returns is
false and fraudulent.
Second. That from the other evidence in the case it is impossible to
ascertain the true vote of said poll.
The vote must therefore, in the opinion of your committee, be
entirely rejected.
The majority insist that as the poll was in charge of election
officers, a majority of whom belonged to sitting Member's party, it was
not probable that the true vote for contestant was swelled in the
returns.
Sec. 933
The minority views maintain that the evidence of the voters is
sufficient as to how they voted. Although illiterate, they recognized
the Republican ticket by the way the flag was placed on it, the flag on
the Democratic ticket being placed in a different way. Also the tickets
were given to them by officers of their political clubs, and these
officers distributed none but straight Republican tickets, bearing
Bisbee's name.
933. The case of Finley v. Bisbee, continued.
A voter being qualified as to naturalization, his vote was not
rejected because he did not produce his papers at the polls as required
by the State constitution.
The acts of election officers being presumed to be correct, a vote
should not be rejected unless it is positively proven that the voter
was disqualified as to registration.
(2) A question arose as to the votes of certain foreign-born persons,
which were received without the production of naturalization papers.
The majority report thus states the case:
The qualifications of voters in Florida are prescribed and defined in
section 1 of Article XIV of the constitution of that State, as follows:
``Section 1. Every male person of the age of twenty-one years and
upwards, of whatever race, color, nationality, or previous condition,
who shall at the time of offering to vote be a citizen of the United
States, or who shall have declared his intention to become such in
conformity to the laws of the United States, and who shall have resided
and had his habitation, domicile, home, and place of permanent abode in
Florida for one year, and in the county for six months next preceding
the election at which he shall offer to vote, shall in such county be
deemed a qualified voter at all elections under this constitution.''
(See acts of 1868, containing the State constitution, p. 211.)
The third section of the same article of the constitution, and the
one on which the contestee relies, does not create any additional
qualifications for voters, but only prescribes a regulation. It reads
as follows:
``Sec. 3. At any election at which a citizen or subject of any
foreign country shall offer to vote under the provisions of this
constitution, he shall present to the persons lawfully authorized to
conduct and supervise such election a duly sealed and certified copy of
his declaration of his intention, otherwise he shall not be allowed to
vote. And any naturalized citizen offering to vote shall produce before
said persons lawfully authorized to conduct and supervise the election
the certificate of naturalization, or a duly sealed and certified copy
thereof, otherwise he shall not be permitted to vote.'' (Acts of 1868--
constitution, sec. 3, pp. 211-212.)
In the opinion of your committee it is clear that section 1 of
Article XIV prescribes and defines all the qualifications of voters,
and equally clear that section 3 does not create any additional
qualification.
The qualification prescribed by section 1, in regard to foreign-born
persons, is, that at the time they offer to vote they shall either be
citizens of the United States, or shall have declared their intention
to become such; while section 3 does not create any additional
qualification, but only undertakes to prescribe the mode of proof, in
case the right of such persons to vote shall, at the time they offer to
vote, be disputed.
Such is the reasonable interpretation of these two sections of the
constitution of Florida, when taken and construed together.
Moreover, this is the construction given by the first legislature in
the State of Florida, which convened under the constitution of 1868,
and it is to be observed that very many of the members of said
legislature were also members of the convention that formed the
constitution, and your committee are advised that this construction has
been acquiesced in by every legislature that has convened since that
time.
Sec. 933
The legislature of 1868 treated and construed the third section of
Article XIV of the constitution as being merely directory, as will be
seen from the sixteenth section of the act of August 6, 1868, which
provides as follows:
``Sec. 16. If any person offering to vote shall be challenged as not
qualified, by any inspector or by any other elector, one of the board
shall declare to the person challenged the qualifications of an
elector. If such person shall claim to be qualified, and the challenge
be not withdrawn, one of the inspectors shall administer to him the
following oath: `You do solemnly swear that you are twenty-one years of
age; that you are a citizen of the United States (or that you have
declared your intention to become a citizen of the United States
according to the acts of Congress on the subject of naturalization);
that you have resided in the State one year, and in the county six
months next preceding the election; that you have not voted at this
election, and that you are not disqualified to vote by the judgment of
any court;' and if the person challenged shall take such oath he shall
be allowed to vote.'' (Pamphlet acts 1868, p. 5, sec. 16.)
It is shown by the testimony in this case that none of these alien-
born voters, except one, were challenged; that their naturalization
papers were not demanded; that they were allowed to vote without
question, and that they were in fact (with the exception of 7), at the
time they voted, either naturalized citizens of the United States, or
had declared their intention to become such, as required by section 1
of Article XIV of the constitution of the State. And your committee are
of the opinion that, as they are proven to have possessed the
qualification of citizenship or of having declared their intention to
become citizens as required by the constitution, their votes should not
be rejected.
The majority say it is the settled law of elections that where
persons vote without challenge they are presumed to be entitled to vote
and that the election officers receiving the votes did their duty
properly and honestly. The section requiring the presentation of a
certificate prescribed only a regulation, and according to McCrary
``the right to vote must not be impaired by the regulation.''
Furthermore, the evidence showed that the larger portion of these
aliens had been naturalized, and therefore section 1 of the fourteenth
amendment to the Federal Constitution guaranteed that no State law
should ``abridge the privileges or immunities'' of these naturalized
citizens.
The minority combat this proposition, saying in their views:
Now, contestant concedes that a vote cast by a person not registered
is illegal. And it is too well settled to be disputed. Registration is
a ``necessary prerequisite'' to be complied with by the voter before he
can legally vote. The constitution of Florida makes another ``necessary
prerequisite'' of a foreign-born person before he shall vote. It tells
him he shall present to the officers of the election his duly certified
and sealed ``naturalization papers'' or his ``declaration of
intention'' (where he has not taken out his final papers), ``otherwise
he shall not be allowed to vote.''
And it seems to us that the same principle must be applied in the
case of foreign-born persons who did not present their papers, as the
law required, to the officers at the election that we have applied to
unregistered voters. The requirement of the constitution is mandatory.
It requires a certain thing to be done by a foreign-born person,
``otherwise he shall not vote.''
It is urged by contestant that they were not challenged, and had they
been required so to do, that in most cases they could have produced the
papers the constitution required. We might say the unregistered voters
were not challenged. They, too, could have registered if they knew the
law required it and they desired to do so. Each has failed to do what
the constitution of the State has commanded before they can legally
vote.
This is not something the law requires of the officers of election.
It is a requirement of the citizen to qualify him to vote. The
constitution of the State challenged his vote unless he complied with
the supreme law of the State.
``The right of suffrage is not a natural right nor is it an absolute
unqualified personal right. It is the right derived in this country
from constitutions and statutes. It is regulated by the States, and
Sec. 934
their power to fix the qualifications of voters is limited only by the
fifteenth amendment to the Constitution, which forbids any distinction
on account of `race, color, or previous condition of servitude.' ''
(McCrary, sec. 3, and cases therein cited.)
``But the election franchise, like other rights, is not that of
unrestrained license. In a government of law, the law must regulate the
manner in which it must be exercised. The time and occasion and mode of
voting are to be prescribed by the legislature, except in so far as the
constitution has a voice of its own on the subject, and therefore it is
that laws have been created for election officers, regulating the hours
of the day during which the election shall be held, and the proof
necessary to establish the right to vote. * * * The elector's privilege
is not, therefore, a mere constitutional abstraction, but it is to be
exercised in subordination to law, and on proof of title of the person
claiming its exercise. The right, however well founded in fact, may be
lost for want of such evidence of titles as the law demands.'' (Opinion
of court in case of Batturs v. Megary, Brewster Rep., vol. 1, p. 171;
see also 2d Bartlett, 831.)
In Pennsylvania persons not assessed for taxes were required by the
laws of the State to answer certain questions under oath, concerning
tax, age, and residence, and also to prove their residence by the oath
of a qualified voter.
In the following cases it was distinctly held that a vote cast
without complying with the statute was illegal and could not be
counted. (Mann v. Cassady, 1st Brewster, p. 12; Myers v. Moffett, 1st
Brewster, p. 230; Weaver v. Given, 1st Brewster, p. 141; Sheppard v.
Gibbons, 2d Brewster, pp. 117-129.)
In Brightly's Leading Cases, p. 492 (note), the author says:
``Votes received from electors whose names do not appear on the
assessment list without the preliminary proof required by law were
formerly held to be prima facie illegal and to be rejected from the
count unless adequate proof were made on the trial of the legality of
such vote. (Mann v. Cannada and Weaver v. Given.) But the modern and
better opinion seems to be that such votes being illegal when received
can not be made legal by the production of evidence of qualification on
the trial which ought to have been but was not produced to the election
officers.''
He cites Sheppard v. Gibbons and Myers v. Moffett.
In the case of Sheppard v. Gibbons, the court says:
``A vote prima facie illegal must be disallowed if the voter did not
at the time of offering it produce the preliminary proof required by
law. (Brightly, p. 558 and 572. See Covode v. Foster, 2d Bartlett, 600
et seq., and Wright v. Fuller, ibid, 159 and 160.)
Again, the statutes of Wisconsin provide that no person, not
registered, should be allowed to vote unless he produced his own
affidavit and the affidavit of a householder of the district of his
residence in the district. In a case reported in 21st Wisconsin, page
566, it is held that the affidavits must be produced or the vote is
illegal and must be thrown out.
This is an important case, and all the principles arising under
section 3, article 4, constitution of Florida, concerning foreign-born
voters are decided.
The minority further cite the case of Bancroft v. Slumpf (23d Wis.,
630), and urge that the 74 votes of foreign-born persons, who voted
without complying with the conditions of the constitution, should be
deducted from contestant's vote.
934. The case of Finley v. Bisbee, continued.
As to the sufficiency of certified copies of registration lists as
evidence of the qualifications of voters.
Until the contrary is proven, election officers are presumed to have
tested the voter's qualifications by a required oath.
Criticism of the rule of proportionate deduction of illegal votes the
nature of which is unknown.
Evidence is not admitted on a point as to which there was a total
failure to plead in the answer.
(3) As to the votes of certain persons who were not registered.
The law of Florida provided for a registration of the legally
qualified voters in
Sec. 934
each county, and that ``no person not duly registered according to law
shall be allowed to vote.'' Also further sections of law provide:
Sec. 8. No person shall be entitled to vote at any election unless he
shall have duly registered six days previous to the day of election.
Section 9 provides:
That the county commissioners shall meet at the office of the clerk
of the circuit court within thirty days preceding the day on which any
election shall be held and examine the list of registered electors, and
erase therefrom the names of such persons as are known or may be shown
to their satisfaction to have been dead, or ceased to reside
permanently in the county, or otherwise become disqualified to vote;
Provided, That if any person whose name may be erased shall on offering
to vote at any election declare on oath that his name has been
improperly struck from the list of registered voters, and shall take
the oath required to be taken by persons challenged, such person shall
have the right to vote.
Section 10 provides for furnishing the election officers at each
precinct with a revised list of the registered voters of the county.
On these provisions of law the sitting Member based an objection thus
set forth in the minority views:
The sitting Member insists that a large number of persons at various
polls in eleven of the counties of the district voted, never having
been legally registered. He introduces, first, the poll list, showing
who did vote at each of the polls where such illegal votes were cast;
then produces either a certified copy of the original registration
book, including the names of all persons who had been striken off, or
he produces a copy of the revised list of registration, together with a
list of the names striken off; thus presenting a certified copy of the
names of all persons who have ever been registered since the adoption
of the new constitution in 1868. By comparing the poll list with the
list of registration so produced, we find that many persons have voted
who have never been registered. If they were sworn at the polls as the
statute demands, and took the oath that they had been registered and
had been improperly stricken off, then they must have sworn falsely,
for the record itself, the highest evidence, shows that they never were
on the registration book and hence were never stricken off. The
contestant in this case was the contestant in the Forty-fourth
Congress, in the case of Finley v. Walls. He was given his seat upon a
decision that the votes not found on the revised list were not sworn as
the law directs. In this case they never were registered, and such
oath, if taken, would have been false. Their votes could not be
received even if sworn. In that case the officers of the election were
called and proved how many persons voted at each poll who were not on
the revised registration list supplied by the clerk. In this case the
voters, as shown by record evidence, never did register. In the former
case, where it was not ascertained for whom the legal votes were cast,
they were deducted from the vote each candidate received, according to
a rule which seems now well established. It is proper here to notice an
objection made by contestant in regard to the evidence concerning the
names that had been ``stricken off.'' He insists that this is no longer
a record, and cannot be introduced as evidence. This might be true if
in ``striking off'' or ``erasing'' the name of a voter from the
``registration book'' it was so obliterated that the name could not be
ascertained; but such is not the fact. The name ``stricken off'' is not
so defaced that it can not be made out. In fact, we find in some cases
the only striking out that is done is the writing at the end of the
name the words ``removed,'' or ``dead,'' or ``convicted of felony,''
etc. (See Record, pp. 708-728.) Again, the proof shows in regard to the
county of Alachua that the clerk of the circuit court, in order to
prepare the revised list for the officers at the various polls at this
election, handed his ``registration book'' to the printer to prepare
the revised lists necessary. But instead of printing a revised list, he
printed the names of those who were stricken off as well as those who
had not been stricken off. A pen had been drawn through the names of
those stricken off, but they were still legible. (See evidence of Clerk
Webster, Record, p. 137.)
The clerks of the circuit courts furnish in the record of this case
lists of names of all persons who have ever been registered in their
county since the adoption of the new constitution in 1868. They certify
that they are true and correct; they include the names of those who had
once been registered, but are dropped or ``stricken off'' when revised
lists are prepared to send to the officers holding an
Sec. 934
election. We think this evidence legitimate and proper. From these
registration lists and the poll lists we can, by comparison, clearly
ascertain the names of all persons who have voted but have never been
registered. We also hold that persons who have never been registered
could not legally vote. Upon this question we cite the following
authorities:
Finley v. Walls, Forty-fourth Congress:
``If election officers receive a vote without preliminary proof,
which the law makes an essential prerequisite to its reception, such
vote is as much an illegal one as if the voter had none of the
qualifications required by law.''
Brightly's L. Cases, 453, 492, note.
State v. Hilmoutel, 21st Wis.. 566.
State v. Stumpf, 23d Wis., 630.
16 Mich., 342.
Registration is, under the constitutional laws of Florida, an
essential prerequisite before voting. The law tells the elector, unless
you are registered you shall not vote. It tells the officers of
election they shall not receive it. Hence, such illegal votes cannot be
counted either by the courts or by unbiased legislative bodies, even
after they are put in the ballot box.
The majority in their report do not admit the legality of the
contestant's argument, and say:
The contestee offers in evidence the certified copies of the
registration lists of the counties; also the poll lists of the
precincts of said counties; and he invites a comparison of the names on
the poll list with the names found on the registration list, and
insists that the votes of all persons whose names appear on the poll
list as having voted, but whose names are not found on the registration
list, be declared void, for the reason that such votes are illegal.
Your committee does not agree with this view of the question. If a
person vote in a county in Florida, having all the qualifications of a
voter of said county except that his name has never been registered in
said county, his vote, in the opinion of your committee, would be
illegal, or if the name of such person having once been on the
registration list of said county, but having been erased therefrom by
the board of commissioners, afterwards cast his vote without having
first taken the oath that his name had been improperly stricken ``off
from'' the list of registered voters, his vote would also be illegal.
But suppose we examine the poll list and find the name of a voter
thereon as having voted, and we then turn to the registration list and
find his name is not on that, can it therefore be said that he voted
illegally? Certainly not. If a person votes at an election, his vote is
presumed, under the law, to be legal until the contrary be proven in a
legal way, for the reasons--
First. That the acts of an officer or officers of an election within
the scope of this authority are presumed to be correct and honest until
the contrary is made to appear, and therefore that they as such
officers would not receive an illegal vote.
Second. That the presumption is always against the commission of a
fraudulent or illegal act, and therefore that a man would not cast an
illegal vote. (McCrary, sec. 87-440; Little v. Robbins; Gooding, v.
Wilson.)
The majority further say that while the certified copy of the poll
list is evidence that the voter cast his vote, a certified copy of the
revised registration list was not evidence that his name had never been
on the registration list for it might have been erased. The law of
Florida did not provide for making a record of names of persons erased
from the registration lists.
The fact can not be proven by the record, and certainly can not be
proven by the certificate of the clerk attached to what purports to be
a copy of a record which has no legal existence, for the clerk can only
certify to records in such case, and his certificate to a fact in this
case, outside of the records legally in his custody and of which he is
legally authorized to give certified copies under his hand and seal,
amounts to no more than the certificate of a private individual to a
given fact.
Sec. 934
The sitting Member introduced the evidence of two witnesses who had
examined the poll lists, registration lists, and other papers, and who
gave the results of their examinations. The majority say:
These statements made by the witness are inadmissible. The papers
themselves are the best and only evidence of what they contain, if they
are admissible for any purpose. The committee must make the comparison
and can not take the statements of the witness as to the result of his
comparison.
Your committee is of the opinion that this proof is insufficient to
prove that these persons voted illegally whose names are not found on
the registration lists of their respective counties. If they took the
oath that their names had been improperly erased from the registration
list--and the proof thus far is insufficient to overcome the
presumption that they did--their votes are legal. The contestee
undertakes to overcome the presumption in favor of the legality of this
class of votes in another way. On some of the poll lists of the
precincts in these counties is found at the end of some of the names of
the persons voting these words, ``Not sworn.'' At the end of others the
word ``Sworn.'' Now, it is contended by contestee that whenever you
find a name on the poll list of any precinct with the words ``Not
sworn'' written after it, which name is not found on the registration
list of the respective county, that the vote of such person is illegal.
This position can not be maintained, for reasons which we have
heretofore stated. But we will further say that the law does not
authorize the election officers, or either of them, to write the words
``Not sworn'' or ``Sworn'' on the poll list after the names of the
voters who have voted and whose names are not found on the registration
list of the county in which they vote, whether such persons were sworn
or not before they voted. The writing of these words are therefore
unofficial acts, and not a part of the poll list under the law, and not
evidence, and can not be made so by a certified copy of the poll list,
as is here attempted to be done. It would be a very dangerous rule,
indeed, which would permit everything which appears on the face of a
record to become evidence, whether placed there by authority of law or
by the unofficial acts of irresponsible persons. How these words came
to be written on these poll lists or by whom they were so written the
evidence does not show. But it is enough for your committee to know
that they were not placed there pursuant to any law and can not be
considered as evidence.
Your committee is, therefore, of the opinion that the evidence does
not prove that the votes cast by persons whose names were not found on
the registration lists of the counties in which they voted are illegal.
The evidence does not prove that they did not take the oath required by
law in such case.
The minority, holding that the votes in controversy should be
deducted, laid down this rule:
Where the proof shows for whom such illegal vote was cast, we deduct
it from the candidate who received it. Where it is not shown for whom
such illegal votes were cast, we adopt the well-settled rule which was
followed in the case of Finley v. Walls, Forty-fourth Congress. This
rule is laid down by Mr. McCrary in his Law of Elections, section 298
(see authorities there cited), as follows:
``In purging the polls of illegal votes the general rule is that,
unless it be shown for which candidate they were cast, they are to be
deducted from the whole vote of the election division, and not from the
candidate having the largest number.''
Of course, in the application of this rule, such illegal votes would
be deducted proportionately from both candidates, according to the
entire vote returned for each.
The majority report says:
In purging the polls of illegal votes the general rule is that,
unless it be shown for which candidate they were cast, they are to be
deducted from the whole vote of the election division, and not from the
candidate having the largest number. (McCrary on Elections, p. 223;
Shepherd v. Gibbons, 2 Brewster, 128; McDaniel's Case, 3d Penn., L. F.,
310; Cushing's Election Case, 583.)
Of course, in the application of this rule, such illegal votes would
be deducted proportionately from both candidates, according to the
entire vote returned for each. (McCrary, p. 223.)
This is, perhaps, the best rule that can be adopted in such case. It
is manifest, however, that it may sometimes work a great hardship; for
the truth might be, if it could be shown, that all the illegal votes
were cast for one of the candidates, while it is scarcely to be
presumed that they would ever be
Sec. 935
divided between the candidates in exact proportion to their whole vote.
But the rule that would deduct them all from either one of the
candidates, in the absence of proof as to how the illegal votes were
cast, is much more unreasonable and dangerous. The above rule is
perhaps the safest one to be adopted in a court of justice, where there
is no power to order a new election, and where great injury would
result from declaring the office vacant. But it is manifest, as we have
already said, that it might work a great hardship. And in a legislative
body, having the power to order a new election, it is safer, in the
opinion of your committee, and more conducive to the ends of justice,
to order such new election than to reach a result by the application of
such a rule. (McCrary, pp. 224, 225.)
A question as to pleading is thus disposed of by the majority report:
Contestee undertakes to prove that certain devices were resorted to
in this county by certain persons to compel persons to vote the
Democratic ticket by numbering tickets which they gave to said voters,
with threats that if they did not vote the Democratic ticket they would
be discharged by their employers, etc. There is nothing in the answer
which will justify such proof. There is no allegation in the answer
that can under any rule of pleading known to your committee be
construed so as to admit such evidence. We are disposed to extend the
rule in this case as far as possible, in order to let in all the
evidence, but when there is a total failure to plead, as is the case
here, we can not consider the evidence in determining a fact which
tends to change the vote of either candidate. Your committee will say,
however, that the proof on this point wholly fails to sustain such an
allegation were it averred.
In accordance with their conclusions, the majority of the committee
recommended the following resolutions:
Resolved, That Horatio Bisbee, Jr., is not entitled to a seat in this
House as a Representative in the Forty-fifth Congress from the Second
Congressional district of Florida.
Resolved, That Jesse J. Finley is entitled to a seat in this House as
a Representative in the Forty-fifth Congress from the Second
Congressional district of Florida.
The minority reported in favor of sitting Member.
The report was fully debated on February 20, 1879,\1\ and on that day
the question was tried on the majority resolutions, which were agreed
to, yeas 131, nays 122.
Thereupon Mr. Finley, the contestant, appeared and took the oath.
935. The Missouri election case of Frost v. Metcalfe in the Forty-
fifth Congress.
On so difficult a question as that of residence strong testimony is
required to destroy the presumption that election officers have
permitted none but qualified electors to vote.
The Committee on Elections declined to count votes of persons
prevented from voting by an erroneous dropping of their names from the
registration.
The Committee on Elections declined to reject or purge a poll because
of the bad conduct of United States marshals.
On February 25, 1879,\2\ Mr. John T. Harris, of Virginia, from the
Committee on Elections, submitted the unanimous report of the committee
(the minority concurring in the conclusions) in the Missouri election
case of Frost v. Metcalfe.
Sitting Member had been returned by an official plurality of 19
votes. Con-
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\1\ Journal, p. 477; Record, pp. 1670-1683.
\2\ Third session Forty-fifth Congress, House Report No. 118; 1
Ellsworth,p. 289.
Sec. 935
testant sought to overturn this result by a number of objections.
Certain of these involved questions discussed, as follows:
(1) Contestant alleged that 6 illegal votes were cast by negroes not
residents of Missouri. The report says:
They do not regard the proof as sufficient to show that the 6 votes
in question were not legal voters. It wholly fails to show that the
residence of these colored men was not at their place of voting.
Neither does the evidence show that they voted for contestee. It would
be a dangerous doctrine to the right of election to permit the solemn
act of the sworn officers of the law to be set aside upon such
testimony. It is to be presumed that they did their duty. A majority
were of the same politics of the contestant, and the evidence shows
they sought to be watchful and careful in the discharge of their duty.
It may be, and often is, difficult to determine the home or domicile of
a boatman, or one who is constantly engaged in steamboating or on
railroads, but as the law contemplates every man has a domicile or
residence, it is often only known to the party himself. It is a
question of intent, known alone to the party. It is to be presumed the
election officers sifted these voters and came to correct conclusions.
The evidence is not sufficient to show they did not.
(2) While considering the question of defective registration lists
the report says:
While on this branch of the subject your committee will dispose of
the complaint made by contestant that by reason of the errors in
copying the registration list he lost many more votes than contestee.
To count votes which were never offered at any poll is carrying the
doctrine further than we ever knew it. To authorize this committee to
count a vote, four things are requisite--first, the person offering to
vote must have been a legal voter at the place he offered to vote;
second, he must have offered his vote; third, it must have been
rejected; and, fourth, it must be shown for whom he offered to vote.
These requisites do not exist in these cases; therefore your committee
will not further consider them.
(3) Contestant alleged:
That the conduct of judges and United States supervisors and marshals
at said precinct No. 77, in handling and tampering with the ballots and
the tallies, tainted the return from that poll with fraud, and rendered
the result so uncertain that said poll must be wholly rejected.
The committee say:
The contestant asks that the whole poll at No. 77 be set aside and
discarded, because the return was tainted with fraud by handling and
tampering with the ballots and tallies.
The only evidence on this subject is given by the deputy United
States marshal, Wortman. The contestant does not call any of the judges
or officers conducting the election, a majority of whom were Democrats,
to sustain this charge. As before said, the law presumes public
officers did their duty. The returns are in due form and were duly
counted. According to the showing of this witness, the falling out of
the ballots was purely accidental. Then why not have called some of the
officers to prove these facts if they existed? The failure to call them
raises the presumption that they would not sustain the charge. They do
not occupy the position of parties charged with fraud testifying in
their own behalf, but they are presumed to be impartial and
disinterested, or, if partial, a majority of them are presumed to lean
toward contestant, therefore would have been willing to tell the truth
in his behalf.
To set aside a formal and regular return made by sworn officers of
both political parties, upon such evidence, would set a dangerous
precedent and render popular elections but a name and a mockery.
(4) Contestant alleged:
That said marshals were wholly unnecessary and were appointed solely
for the purpose and in number sufficient to make reasonably certain the
election of Metcalfe.
Eighth. That the money promised them by the Government was used
simply as a bribe for votes for Metcalfe. That many of them were
Democrats, who, to obtain the position, were compelled to promise and
pledge that they would vote for Lyne S. Metcalfe.
Sec. 935
The committee said:
Your committee deprecate the appointment of United States marshals
under any pretext. If they are intended as conservators of the peace,
the power of the State is ample for that purpose. If they are in any
manner to interfere in the elections, it is clearly a violation of the
laws of the States for them to do so. But the law of the United States
warrants the appointment of deputy marshals, and the same must be
respected until altered or repealed. It does not limit the number. The
question in this case is, Was the conduct of the marshals such as to
invalidate the whole election? It can not with any strong reason be
urged that this committee shall make an estimate from conjecture how
many voters they changed by their conduct. Nor would it be safe or
warranted that the parties alleged to have been bribed, would, but for
such bribe, have voted the other way. If the conduct of these deputy
marshals was such as to pollute the whole vote of the district, then
the committee could not sift the good from the bad voters and declare a
result, but would be compelled to find there had been no fair
expression of the popular will, and that no legal election had been
held.
The testimony of the witnesses called by the contestant to prove
bribery and fraud on the part of those marshals is very vague and
unsatisfactory. Some 8 were introduced, who do prove that they were
appointed with the promise expressed or implied that they would vote
for Metcalfe, but 5 admit they voted for Frost; 2 say they voted for
Metcalfe, but they preferred him and were in no way influenced by the
office. One did not vote at all. So that the evidence, so far as it
goes, tends to repel the presumption that the 728 deputy marshals were
influenced in their votes by reason of their appointments. To say the
least of it, the testimony is not very reliable, coming as it does from
men who confess their own abasement and degradation.
There is nothing in this evidence that would justify your committee
in transferring any votes from Metcalfe to Frost or deducting any from
Metcalfe; much less would it justify them in setting aside the whole
election.
In accordance with their conclusions, the committee reported
resolutions confirming the title of sitting Member to the seat.
On February 25, 1875,\1\ this report was presented in the House, but
was not acted on then or thereafter.
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\1\ Journal, p. 525; Record, p. 1893.