[Hinds' Precedents, Volume 1]
[Chapter 18 - Credentials and Prima Facie Title]
[From the U.S. Government Publishing Office, www.gpo.gov]
CREDENTIALS AND PRIMA FACIE TITLE.\1\
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1. In due form from Recognized Constituency, sections 52-37.\2\
2. Questions as to Validity of, sections 538-543.\3\
3. In Relation to Questions as to the Fact of Election,
sections 544-552.\4\
4. Refusal of State Executives to Issue, sections 553-564.\5\
5. In relation to Questions as to Vacancy, sections 565-570.\6\
6. As related to Contested Elections, sections 571-588.\7\
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528. The House admits on his prima facie showing and without regard
to final right a Member-elect. from a recognized constituency whose
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\1\ Question of prima facie title not to be reopened when once
decided. Section 847 of Volume II
As related to enrollment by the Clerk. Chapter II, sections 30-60 of
this volume.
As related to qualifications. Cases of Connor (sec. 469 of this
volume). Roberts (sec. 474). Smoot (sec. 481), and others (secs. 415,
416, 420, 429, 432, 443, 468); also cases involving question of loyalty
(secs. 443, 448, 453, 457, 460, 461, 462).
\2\ In relation to districts distracted by war. Cases of Foster (sec.
362); Segar (sec. 363); Clements (sec. 365); Wing v. McCloud (sec.
368); Pigott (sec. 369); Grafflin (sec. 371); McKenzie v. Kitchen (sec.
374); Chandler and Segar (sec. 375); Fields (sec. 376); Flanders and
Hahn (sec. 379); Johnson, Jacks, and Rogers (sec. 380); Louisiana
Members (sec. 381); also Senate cases, sections 382-384.
Members-elect from States lately in secession not admitted on prima
facie title. Chapter XI, sections 387-388 of this volume. Senate
decisions, sections 389-395.
Delegates elected in unorganized Territories not admitted on prima
facie title. Sections 405, 410 of this volume.
\3\ See cases of Brockenbrough v. Cabell (sec. 812 of this volume),
and Wiggington v. Pacheco (sec. 927 of Vol. II).
\4\ Case of the New Jersey Members (secs. 791-794 of this volume); of
Tennessee Members (sec. 521); Gilbert and Wright (sec. 520); Minnesota
members (sec. 519), and a case involving apportionment (sec. 309).
\5\ Refusal of State executive to sign. Sections 353, 415 of this
volume.
\6\ Cases of Mississippi Members (sec. 518 of this volume); Newton
(sec. 489); Blakely v. Golladay (sec. 322), and cases wherein States
have sent Members in excess of the apportionment (secs. 314-318 of this
volume); also the Senate case of Stanton v. Lane (sec. 491).
\7\ See also House cases as follows: Letcher v. Moore (sec. 53);
``Broad Seal'' case (sec. 103); Smith v. Brown (sec. 459); Symes v.
Trimble (sec. 452); Louisiana cases (secs. 328, 332); Chalmers v.
Manning (secs. 44, 45); Gunter v. Wilshire (sec. 37); Wallace v.
McKinley (sec. 986 of Vol. II); Atkinson v. Pendleton (sec. 1020 of
Vol. II); McGinnis v. Alderson (sec. 1036 of Vol. II).
As to prima facie right when returned Member dies pending a contest.
Section 735 of this volume.
Contestant not to be seated because a partial investigation reveals
for him a prima facie title. Section 772 of this volume.
The certificate of the State executive is prima facie evidence only.
Section 637 of this volume.
Also see Senate cases as follows: Kellogg, Spofford, and Manning
(secs. 354-357); Ray v. McMillen (sec. 345); Finchback, McMillen, Marr,
and Eustis (secs. 347-353); Sykes v. Spencer (sec. 342); Morgan and
Lamar (sec. 359); Sanders, Power, Clark, and Maginnis (sec. 358).
Sec. 529
credentials are in due form and whose qualifications are
unquestioned.--
On September 4, 1837,\1\ at the organization of the House, the Clerk
was calling the roll of Members-elect by States, and had reached
Mississippi when Mr. Charles F. Mercer, of Virginia, arose and having
questioned the right of the two gentlemen from Mississippi present to
seats, offered this resolution:
Resolved, That sufficient evidence has not been afforded to this
House that John F. H. Claiborne and Samuel J. Gholson are lawfully
entitled to seats therein.
It appeared in the course of the debate that the Members from
Mississippi had regular credentials from the governor of the State, and
one of them announced his purpose, in case he was challenged, to
challenge every Member present to produce his credentials.
Mr. Mercer's resolution was laid on the table--ayes 131, noes 5--and
the names of the Members from Mississippi were called.\2\
529. On December 1, 1856,\3\ Mr. John S. Phelps, of Missouri,
presented the credentials of John W. Whitfield as a Delegate from the
Territory of Kansas, to fill the vancancy existing by the decision of
the House unseating Mr. Whitfield at the first session of the present
Congress.
The credentials having been read, Mr. Phelps stated that the
Delegate-elect was now present and was ready to take the usual oath.
Mr. Galusha A. Grow, of Pennsylvania, objected to the administration
of the oath to the said Delegate-elect, when the Speaker \4\ said that
the question was for the determination of the House, viz, Shall the
oath to support the Constitution of the United States be administered
to John W. Whitfield as the Delegate-elect from the Territory of
Kansas?
It was urged by Mr. Phelps that, the credentials being in due form,
the Delegate-elect was entitled, by prima facie right, to be sworn in.
Such had been the practice of the House.
On the other hand, Mr. Grow cited the New Jersey cases, and that of
Moore and Letcher, in former Congresses, as precedents to justify the
objection in the present case.
The question being taken, the House, by a vote of yeas 97, nays 104,
decided that the oath should not be administered to Mr. Whitfield.
Thereupon a motion was made to reconsider, and after a parliamentary
struggle of long duration, the vote was reconsidered, and on December
9, the question being again taken, the House voted, by ill yeas to 108
nays, that the oath should be administered to Mr. Whitfield, and he was
accordingly qualified.
530. On March 4, 1869,\5\ Mr. William Lawrence, of Ohio, submitted
the following resolution during the administration of the oath to
Members at the organization of the House:
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\1\ First session Twenty-fifth Congress, Journal, p. 4; Globe, pp. 2,
3.
\2\ See section 518 of this volume for fall explanation of the
conditions under which these credentials were given.
\3\ Third session Thirty-fourth Congress, Journal, pp. 7, 8, 84, 85;
Globe, pp. 2, 68, 69.
\4\ Nathaniel P. Banks, jr., of Massachusetts, Speaker.
\5\ First session Forty-first Congress, Journal, p. 9; Globe, p. 7.
Sec. 531
Resolved, That A. A. C. Rogers, claiming to be the Representative in
the Forty-first Congress from the Second district of Arkansas, shall
not now be permitted to take the oath of office or a seat as such
Representative, but his credentials shall be and are referred to the
Committee of Elections when appointed.
Mr. Lawrence stated that he held a certificate from the governor of
Arkansas stating that in a portion of the district which Mr. Rogers
represented there had been great disorder and no fair election.
It was urged in opposition that Mr. Rogers held a certificate regular
in form and that he should be sworn in, leaving his final right to the
seat to be determined later.
A motion to lay the resolution on the table was agreed to, and the
oath was administered to Mr. Rogers.
531. On March 4, 1869,\1\ after the election of the Speaker, and
while the oath of office was being administered to the Members-elect,
Mr. James Brooks, of New York, proposed, when the Members from Missouri
presented themselves to be sworn, the following:
Resolved, That the right of Robert T. Van Horn and David P. Dyer to
seats upon this floor be inquired into by the Committee of Elections
before they are permitted to be sworn in as Members of the Forty-first
Congress.
The reason given for the presentation of this resolution was that the
two gentlemen had not been elected, although it appeared that their
credentials were regular in form. It was urged against the adoption of
the resolution that, while there might be a question as to the final
right of the two gentlemen to their seats, there could be no question
as to their prima facie right. Mr. John F. Benjamin of Missouri
submitted a motion that the oath be administered.
After further debate, Messrs. Van Horn and Dyer stood aside, and on
the succeeding day the motion was put that the oath be administered to
them. On a motion to lay that motion on the table, there appeared, yeas
4, nays 163. The motion that the oath be administered was then agreed
to. Messrs. Van Horn and Dyer then appeared and took the oath.
532. On December 5, 1870,\2\ at the opening of the session, the
credentials of R. W. T. Duke, Member-elect from the Fifth Congressional
district of Virginia, were presented to the House.
Mr. James H. Platt, jr., of Virginia, presented a resolution
referring the papers in a contest against the right of Mr. Duke to a
seat, as well as the credentials, to the Committee on Elections, with
instructions to report at an early date on his prima facie right to a
seat.
Mr. Samuel J. Randall, of Pennsylvania, urged that it was in
accordance with the practice of the House to allow the Member-elect to
be seated when his credentials were in due form, leaving the question
of final right to the seat to be determined later. In this case Mr.
Randall showed the credentials were in proper form according to the
provisions of the law of Virginia.
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\1\ First session Forty-first Congress, Journal, pp. 9, 10; Globe,
pp. 7, 10.
\2\ Third session Forty-first Congress, Journal, pp. 7, 8; Globe, pp.
11, 12.
Sec. 533
The House having declined by a vote by tellers of ayes 57, noes 60,
to second the previous question on the motion of Mr. Platt, it was
then, on motion of Mr. Randall,
Ordered, That the oath of office be administered to the said R. W. T.
Duke.
533. On January 24, 1871,\1\ Mr. P. M. B. Young, of Georgia,
presented the credentials of Mr. Stephen A. Corker, of the Fifth
Congressional district of Georgia, and asked that he be sworn in.
Mr. Benjamin F. Butler, of Massachusetts, objected, and after
presenting the memorial of Thomas P. Beard, claiming the seat, moved
that the petition and the credentials of Mr. Corker be referred to the
Committee on Elections. The objection urged in behalf of Mr. Beard was
that there had been outrage and intimidation in the district which had
rendered illegal the election of Mr. Corker. It was not denied that Mr.
Corker's credentials were in regular form, properly signed and sealed.
In the course of the debate on Mr. Butler's motion, Mr. Henry L.
Dawes, of Massachusetts, said:
Sir, I, as the organ of the Committee on Elections for twelve years,
have time and again so stated. It has been stated on behalf of that
committee on the floor of this House, and it stands in the Globe, as
well on the part of one side of the House as on the other, that the
certificate of a Member, where there was no allegation against his
eligibility, of his lack of loyalty, or other ineligibility, entitled
him to be sworn in. It has been the struggle during all these disturbed
times of that Committee on Elections to hold to the precedents and to
the law against passion and against prejudice, so that if the party
should ever fall into a minority they should have no precedent of their
own making to be brought up against them to their own great injury.
Now, with nothing to be gained, but with everything to be lost, by the
precedent now sought to be established, I entreat the House to adhere
to the ancient rule.
The question being taken, the motion of Mr. Butler was disagreed to--
yeas 42, nays 147.
The question then recurred on the motion of Mr. Young that the oath
be administered to Mr. Corker, and it was agreed to. Thereupon Mr.
Corker appeared and took the oath.
534. On December 5, 1881\2\ at the time of the organization of the
House, and while the Speaker was administering the oath to the Members-
elect, Mr. George W. Jones, of Texas, challenged Mr. Joseph Wheeler, of
Alabama, and later offered the following resolution:
Resolved, That the question of the prima facie as well as the final
right of Joseph Wheeler and William M. Lowe, contestants, respectively
claiming a seat in this House from the Eighth district of Alabama, be
referred to the Committee on Elections hereafter appointed, and until
such committee shall report and the House decide such question neither
of said contestants shall be seated.
The credentials of Mr. Wheeler were read, and proved to be regular in
form and in accordance with the law and the Constitution.
The House, after debate, and without division, voted that Mr. Wheeler
be permitted to take the oath in accordance with his prima facie right.
On the same day Mr. James R. Chalmers, of Mississippi, was
challenged, and under similar circumstances, the House without division
voted that he be allowed to take the oath.
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\1\ Third session Forty-first Congress, Journal, p. 209; Globe, pp.
703-707.
\2\ First session Forty-seventh Congress, Journal, pp. 11, 12;
Record, pp. 9-14.
Sec. 535
535. Credentials being in regular form, and unimpeached, the House
honors them, although there may be a question as to the proper limits
of the constituency.
Credentials being unimpeached, the status of the district under an
apportionment law is a question of final rather than prima facie right.
Forms of credentials borne by persons elected to fill vacancies.
On December 13, 1880,\1\ Mr. Amos Townshend, of Ohio, presented the
following credentials:
In the name and by the authority of the State of Ohio, Charles Foster,
governor of said State,
to all whom these presents shall come, greeting:
By virtue of the powers conferred on me by law, I do hereby certify
that at the special election held on the fifth Tuesday, being the 30th
day of November, A. D. 1880, Ezra B. Taylor was duly elected
Representative in the Forty-sixth Congress of the United States for the
Nineteenth district of Ohio, to fill the vacancy caused by the
resignation of James A. Garfield.
In testimony whereof I have hereunto subscribed my name and fixed the
great seal of the State of Ohio, at Columbus, this 8th day of November,
1880.
[seal.]
Charles Foster, Governor.
Milton Barnes,
Secretary of State.
Mr. Frank Hurd, of Ohio, objected to the immediate swearing in of Mr.
Taylor, on the ground that after the election of Mr. Garfield and prior
to the election of Mr. Taylor, the legislature of Ohio, had by law
changed the limits of the Congressional districts of that State, and
that the Nineteenth district resulting from that change of law
contained one county not in the district before the change, and had
lost one county that it contained before the change. After the
resignation of Mr. Garfield the governor had issued the writ of
election, not to the new Nineteenth district, but to the counties
composing the old Nineteenth, although that district had ceased to
exist. Therefore Mr. Taylor had been elected from a district that had
no existence at all.
On the other hand it was argued by Mr. William McKinley, of Ohio, and
by others that Mr. Taylor's prima facie right to be sworn in was
perfect, the certificate raising no doubt as to its completeness and
legality.
The House, after Mr. Hurd had withdrawn his objection, voted that Mr.
Taylor should be sworn in, and referred the credentials to the
Committee on Elections.
536. On December 19, 1883,\2\ the credentials of Thomas G. Skinner,
of the First Congressional district of North Carolina, were presented
to the House. Mr. J. Warren Keifer, of Ohio, objected to the
administration of the oath to him, and offered a resolution, with a
preamble. This preamble recited that Walter R. Pool was at the November
election, in 1882, elected to Congress from the First Congressional
district of North Carolina, composed of certain counties, including the
county of Bertie, but not including the county of Carteret. By Mr.
Pool's death, on August 25, 1883, a vacancy occurred in the district.
Since the election of said Pool the legislature of the State had
redistricted the State, constituting a new First district,
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\1\ Third session Forty-sixth Congress, Journal, p. 58; Record, pp.
102-106.
\2\ First session Forty-eighth Congress, Journal, pp. 149, 150;
Record, pp. 179-189.
Sec. 537
which did not include the county of Bertie but did include the county
of Carteret. The preamble then proceeds:
Whereas to fill the vacancy occurring as aforesaid, the governor of
North Carolina ordered an election in the said new First district, by
virtue of which election Hon. Thomas G. Skinner now claims a seat in
this House; and
Whereas to admit him to the seat would leave the said county of
Bertie without any district representation in this Congress, and the
said county of Carteret would be doubly represented; therefore,
Be it resolved, That the credentials of Mr. Skinner be referred to
the Committee on Elections of this House, when appointed, with power to
ascertain and report all the facts pertaining to this vacancy and the
said election to fill the same, at as early a day as practicable,
together with the law governing the case.
Mr. Keifer cited precedents applying to the case, but after debate
the House, by a vote of 117 yeas to 108 nays, preferred the following
substitute:
Resolved, That Thomas G. Skinner be sworn in, and that it be referred
to the Committee on Elections, when appointed, to report at the
earliest practicable moment whether the said Thomas G. Skinner was
elected from the First Congressional district of North Carolina as
created before the last Congressional apportionment of Representatives
in Congress or from a district in North Carolina created in that State
since the election of Walter R. Pool, deceased, and to further report
whether in the judgment of said committee said Skinner was elected from
the proper district.
537. The Virginia election case of Garrison v. Mayo, in the Forty-
eighth Congress.
The House should not disturb the prima facie title of a Member
already seated on credentials in due form and unimpeached by anything
properly presented to the House.
The House overruled the action of State officers who had rejected a
county return because of a writing on the seal of the clerk's
certificate.
Votes found in the wrong ballot box have been counted without proof
of mistake, although there was dissent in the committee.
A question as to the best rule for elimination of an excess of
ballots in the box.
Testimony as to what a voter said after election as to his vote is
not admissible to prove for whom the vote was cast.
Where voters are disqualified for crime, a vote should not be
rejected unless there is proper evidence of the conviction of the
person offering it.
On December 3, 1883,\1\ at the organization of the House, the name of
Robert M. Mayo, of the First district of Virginia, appeared on the
clerk's roll of members-elect, and the oath was administered to him
without objection.
On December 4, Mr. J. Randolph Tucker, of Virginia, offered this
resolution:
Resolved, That the certificates and all other papers relating to the
election of a Representative of the First Congressional district of
Virginia in the Forty-eighth Congress be referred to the Committee on
Elections, when appointed, with instructions to report at as early a
day as practicable which of the rival claimants to the seat from that
district has the prima facie right thereto, reserving to the other
party the privilege of contesting the case upon the merits.
It was at once objected, especially by Mr. William H. Calkins, of
Indiana, who had been chairman of the Committee of Elections in the
preceding Congress, that it was unusual, if not unprecedented, for the
House to inquire into the prima
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\1\ First session Forty-eighth Congress, Journal, pp. 21, 31; Record,
pp. 3, 28, 43, 44.
Sec. 537
facie right of a Member after he had been sworn in. The swearing in was
the decision on the prima facie right.
The debate on the resolution was resumed December 5, and Mr. Tucker
maintained that the House being judge of the election, returns, and
qualifications of its own Members, it certainly might inquire as to the
right of the Member to hold the seat during the intermediate time
between the swearing in and the decision as to the final right.
Mr. Aylett H. Buckner, of Missouri, offered this resolution, which
was agreed to:
Resolved, That the resolution be committed to the Committee on
Elections, when formed, with instructions to report on the legal
question involved therein.
On February 8, 1884,\1\ Mr. Robert Lowry, of Indiana, submitted the
report of a majority of the committee. The report held--
It will be observed that by the resolution adopted the former
resolution was simply referred to this committee to report upon the
legal question involved, without any instructions to determine whether,
upon the face of the papers filed in the contested election case, and
as appears by them, the contestor or contestee is prima facie entitled
to the seat. This being so, especially as the contestee has been sworn
in, unless the House itself shall determine to go behind the
certificate of the governor (which, under some circumstances, and
keeping within the rules of parliamentary law, the House, in the
opinion of this committee, is empowered to do), the committee is
further of the opinion, upon the legal question involved, that the
certificate of the governor of the State of Virginia, showing that
Robert M. Mayo was regularly elected as such Representative, being in
due form, in the absence of anything properly presented to us to
impeach it, is conclusive.
This conclusion is based upon the premise that the House has not
instructed the committee to consider the evidence outside of the
certificate referred to in the original resolution proposed by Mr.
Tucker, tending to impeach the certificate of the governor of Virginia,
but merely referred that resolution to the committee with instructions
to report upon the legal question involved; and the certificate being
regular upon its face, and the House not having authorized or directed
the consideration of extrinsic evidence to impeach the commission of
the sitting Member, the conclusion reached is based upon the principle
that the integrity of the certificate is not duly challenged.
In order to dispose of the question submitted, the committee
therefore recommends the adoption of the following resolution, and that
the committee be discharged from the further consideration of this part
of the case:
``Resolved, That upon the legal question involved in the case of
Garrison v. Mayo, the return of the governor, in the absence of
anything appearing thereon or properly presented in connection
therewith tending to impeach it, is conclusive as to the prima facie
right, and that, pending the contest on the merits, the sitting Member
is therefore in this case entitled to retain the seat.''
It does not appear that this proposition was acted on.\2\
On March 20 \3\ Mr. Henry G. Turner, of Georgia, submitted the report
on the question of final right in the contest of Garrison v. Mayo.
As to what may be termed the actual result shown by the returns that
came to the State canvassing board the report says:
Upon the basis of this statement giving Mr. Mayo a plurality of 1
vote, the board further certified that Mr. Mayo was duly elected. It is
due to the governor to say that he did not sign this latter
certificate.
This plurality of 1 vote, upon which Mr. Mayo was accredited as a
Representative of Virginia, was obtained by the rejection of the return
of the election in Gloucester County. That return was in the
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\1\ House Report, No. 286; Mobly, p. 53; Journal, p. 532; Record, p.
995.
\2\ It was stated in the debate that the report was not acted on.
Record, p. 2114.
\3\ House Report No. 954; Mobly, p. 55.
Sec. 537
usual form, and was excluded by the board from the canvass upon the
ground that the certificate of the clerk of the county court of that
county was authenticated by a seal impressed upon the paper from which
it appeared that the word ``circuit'' in the seal had the word
``county'' written over it. That county gave the contestant a majority
over Mr. Mayo of 57 votes.
It also appears that the return from Hog Island, in Northampton
County, an island situate in the bay, many miles from the mainland, was
delayed for a day or two, and was therefore excluded from the count.
That precinct gave the contestant a majority of 14.
Mr. Mayo, during the argument before the committee having conceded
that the majorities for contestant cast in Gloucester County and Hog
Island precinct of Northampton County should be counted for contestant,
no argument is necessary to justify their addition to the votes allowed
to him by the State board of canvassers. Indeed, no reason can be given
for their exclusion, and none was attempted.
This statement demonstrates for contestant a majority of 72 votes. It
being thus made to appear that the contestant was elected, the burden
is devolved upon the sitting Member to show by other evidence that he
was himself elected. This he undertook to accomplish by the various
methods which will now be stated.
Passing to the objections made by sitting Member, the committee
considered the following questions of law:
(1) The report says:
It appears that on the day of the election in question there was a
separate box for votes on constitutional amendments then submitted to
the people for ratification. At Saluda precinct, in Middlesex County, 6
ballots for Congressional candidates were found in the box set apart
for the constitutional amendments. The judges of election burnt these
ballots. There were also found in the box provided for the reception of
ballots for Members of Congress 6 ballots or tickets on the
constitutional amendment. The judges of election, who are charged by
law with the duty of holding the election and certifying the result,
did not regard this coincidence as sufficient evidence of mistake to
justify counting these votes, and no other evidence of mistake has been
presented. Mr. Mayo insists that these 6 votes should be counted for
him. But only 2 of the 6 are shown by any satisfactory evidence to have
contained his name. The witness had the impression that one of them was
a ticket for contestant, and thought, from the appearance of the paper,
that the other 3 were tickets for Mr. Mayo. It is obvious, therefore,
that in no view of this evidence can all of these ballots be counted
for the sitting Member.
4. At Wicomico Church precinct, Northumberland, 2 ballots for Mr.
Mayo were found in the box for constitutional amendments, and 2 ballots
for constitutional amendments were found in the box provided for
candidates for Congress. At Jamaica precinct, Middlesex, 25 ballots for
Mr. Mayo were found in the constitutional amendment box, and a number
(not known by the witness) of ballots for constitutional amendments
were found in the box provided for the Congressional election. Waiving
the question as to whether this state of facts sufficiently shows that
these 27 votes for Mr. Mayo should have been counted for him under the
precedents, we can not add them to the vote certified for him, because
it nowhere appears in the evidence that the commissioners of election
who canvassed the votes of these two counties (Middlesex and
Northumberland) in fact excluded the votes in question. The testimony
shows that the precinct judges at Jamaica counted and returned
separately the 25 votes found for Mr. Mayo in the wrong box, and that
the same was done by the judges at Wicomico precinct as to the 2 votes
in like situation at that place, ``so that the commissioners [at the
county site] might count them or not, as they thought proper'' (Record,
pp. 321, 365, 369, 370). The sitting Member claims these 27 votes in
addition to the votes certified for him from these two counties and
allowed by the board of State canvassers. We can not accede to his
demand, because he has not shown that they were rejected by the county
commissioners.
While the report of the committee was unanimous as to the conclusion
that sitting Member was elected, and while no minority views were
presented, Mr. Ambrose A. Ranney, of Massachusetts, one of the members
of the committee, said in debate\1\ that he believed that votes in a
wrong box should not be counted unless
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\1\ Record, p. 2115.
Sec. 537
a satisfactory explanation was made to show that they were put into the
box by the mistake of the voter or by the error or fraud of the
election officer. If it were to be held otherwise, a dishonest voter
might put a vote for Congressman in each box, and so have two votes. It
was true that the House had adjudicated otherwise in the case of Cook
v. Cutts, but he dissented then and should dissent now.
(2) The report rules in another case:
Mr. Mayo claims that 7 votes cast for him at The Hague, in
Westmoreland County, were illegally rejected by the precinct judges. At
this precinct there were found in the ballot-box for candidates for
Congress 7 more tickets than names on the poll-books. In such a case
the law of Virginia requires the excessive ballots to be taken from the
box by one of the judges, who shall be blindfolded, etc. In this case
one of the judges (who is the witness for the sitting Member) swears
that ``without seeing any difference in the tickets he turned his back
on the box and drew out 7 tickets.'' He adds that they were Mayo
tickets. If the witness is to be believed, he did not see the tickets
until alter they were taken from the box. There seems to have been a
substantial compliance with the law. But if these ballots were unfairly
and illegally taken from the box and rejected from the count, it does
not follow that 7 votes should be added to the votes returned for Mr.
Mayo. The question remains, By what process shall we eliminate the
excess of votes? 'We can not count more votes than were cast by the
voters. Shall we count them all, and then deduct the excess from the
two candidates, as suggested by one of the text writers, in proportion
to the relative vote of each at the precinct where the excess occurs?
We can not comply with this rule, because there is no evidence in the
record showing the relative vote of each candidate at this precinct.
The return of the aggregate vote cast in the entire county of
Westmoreland shows that Mr. Mayo received 868 and Mr. Garrison 383.
Upon the ratio of these numbers, Mr. Mayo would lose, on account of the
excessive votes, more than twice as many as Mr. Garrison would lose
under the rule suggested. We think the clearer course is to acquiesce
in the action of the precinct judges.
(3) A question as to the evidence of how a voter voted is thus
discussed:
At Wicomico precinct, Northumberland County, the name of Charles
Yeatman appeared twice on the poll book. This name, where it first
appeared on the poll book, was changed by the judges of election to
Charles Hartman; but why this change was made is not explained. If any
such person as Charles Hartman voted it was illegal, because no such
name appeared on the registration book; but it is not shown how he
voted. It is insisted by the sitting member that the best theory is
that Charles Yeatman voted twice, and perhaps this view is correct. But
there is no evidence to show how Yeatman voted, except that a witness
swears that Yeatman said, on the Sunday following the election, that he
voted for contestant.
Mr. Ranney also dissented from this, holding that the evidence was
competent to show how Yeatman voted.\1\
(4) The report rules as to evidence to justify the rejection of a
vote:
We think that the vote of Henry Bromly, offered for Mr. Mayo at
Wicomico Church precinct, was illegally rejected, and ought to be
counted for him. We also think that three other persons whose votes
would have been for Mr. Mayo, but whose votes were rejected because of
alleged disqualifications on account of crime, should be counted for
the sitting Member, there being no proper evidence of their conviction
and punishment to be found in the record.
The decision of these questions, and the settlement of certain
questions of fact, made it clear to the committee that sitting Member
had not overcome the real majority of the contestant, so the committee
recommended these resolutions:
Resolved, That Robert M. Mayo was not elected as a Representative to
the Forty-eighth Congress from the First Congressional district of
Virginia, and is not entitled to the seat.
Resolved, That George T. Garrison was duly elected from the First
Congressional district of Virginia, and is entitled to his seat.
-----------------------------------------------------------------------
\1\ Record, p. 2115.
Sec. 538
After debate,\1\ the resolutions were agreed to without division, and
Mr. Garrison appeared and took the oath.
538. The Kentucky election case of Chrisman v. Anderson, in the
Thirty-sixth Congress.
An instance wherein the Elections Committee reported on both prima
facie and final right after one of the parties to the contest had taken
the oath.
A county board, charged by law with the immediate canvassing and
transmittal of precinct returns, may not change a prima facie result by
correcting alleged errors in precinct returns.
Returns of State officers are not binding on the House, which may go
behind all returns in determining final right.
A return not certified by any of the officers of election was
rejected, although on report of a divided committee.
On June 14, 1860,\2\ the Committee on Elections reported in the
Kentucky election case of Chrisman v. Anderson.\3\
This case involved two questions:
(1) The first as to the prima facie right to the seat.
(2) The second as to the final right, involving a question of the
rejection of the vote of a precinct for informality in the return.
As to the first point, the report of the committee makes the
following statement of facts:
The Fourth Congressional district of Kentucky comprises eleven counties
and sixty-four voting precincts. By the laws of that State the election
board at each precinct consists of two judges, a clerk (who are
appointed by the county court), and the sheriff or his deputy. It is
the duty of this board to count the votes cast at each precinct and
certify the result, under their signatures, to the board of county
canvassers. The latter board consists of the presiding judge of the
county court, the clerk thereof, and the sheriff or other officer
acting for him at an election.
The poll books from the different precincts are required by law to be
deposited with the county clerk within two days after an election. On
the next day the board (that is, the county board) shall meet in the
clerk's office, between 10 and 12 o'clock in the morning, compare the
polls, ascertain the correctness of the summing up of the votes, and in
case of an election for a Representative in Congress, it is made the
duty of the board of examiners of each county, immediately after the
examination of the poll books, to make out three or more certificates
in writing, over their signatures, of the number of votes given in the
county for each candidate for said office; one of the certificates to
be retained in the clerk's office, another the clerk shall send by the
next mail, under cover, to the secretary of state, at Frankfort, and
the other to be transmitted to the secretary by any private conveyance
the clerk may select.
The governor, attorney-general, and secretary of state, and, in the
absence of either, the auditor, or any two of them, are a board for
examining the returns of elections for Representatives in Congress and
certain State officers.
The State board is required when the returns are all in, or on the
fourth Monday after an election, whether they are in or out, to make
out, in the secretary's office, from the returns made, duplicate
certificates in writing, over their signatures, of the election of
those having the highest number of votes.
These are the main features of the law prescribing the mode of
canvassing the votes and ascertaining the result of an election in
Kentucky; and your committee believe, from an examination of the
-----------------------------------------------------------------------
\1\ Record, pp. 2112-2117; Journal, pp. 885, 886.
\2\ First session Thirty-sixth Congress, House Report No. 627;
Bartlett, p. 328; Rowell's Digest, p. 167.
\3\ Mr. Anderson had received the certificate, been enrolled by the
Clerk, and had taken the oath with the other Members after the election
of the Speaker. Journal, p. 166.
Sec. 538
evidence and exhibits in the case, with the exception of a single
precinct (which we shall hereafter refer to), these requirements were
substantially complied with.
The voting is viva voice, the name of each voter and of the candidate
for whom he votes being publicly cried by the sheriff or his deputy and
recorded by the clerk.
According to the summing up and certificate of the board of State
canvassers, of the whole number of votes cast Mr. Anderson received
7,204 and Mr. Chrisman 7,201.
The returns were made in accordance with the above provisions of law,
but after they were made certificates were received by the State
canvassers from the board of three counties amendatory of the original
returns. In Boyle County after the county canvassers had adjourned they
reassembled to correct an alleged error, made a recount, and
transmitted an amended certificate to the State canvassers. It seems
that in this county the mistakes were discovered in the poll book by
gentlemen to whom the county clerk had loaned them. The corrections
made in the return of Boyle County and two other counties were
sufficient to show a majority for the contestant.
The State board of canvassers declined to admit these corrections.
The law provided that the judges should sum up the votes, certify the
poll books, and ``deliver them in a sealed envelope to the sheriff.''
The State canvassers thought that this provision for sealing the poll
books negatived the idea of a correction after the books had been
opened and in the hands of other persons. Furthermore, the State
canvassers concluded that after the county board acted on the poll book
of the whole county and their certificate had been transmitted to the
secretary of state they had no power to recall or change those
certificates. Their functions, which were confined to the summing up of
votes and could not be construed to justify inquiry as to corrections,
ceased when the return was made.
The majority of the committee approved this decision of the State
canvassers. The minority disapproved it, holding that the sealing of
the poll books for delivery to the county board was not the imposition
of a seal of authority, but the mere act of sealing the envelope to
perfect the security of returns in passing from the judges of election
to the county canvassers, and also contending that it was a perversion
of right that a county board should be precluded from correcting an
error. The period of twenty-five days allowed by law between the
meetings of the county and State canvassers suggested that such
corrections were expected. The minority also urged that a precedent of
the State board in 1857 justified this view. The majority denied the
force of this precedent.
But while the majority of the committee found that the prima face
title could not be changed, they say:
Your committee, however, do not suppose that the action of the State
board is final and conclusive upon this House. In every case of a
contested election we believe it to be the duty of the House, by its
constituted agents, to go behind all certificates for the purpose of
inquiring into and correcting all mistakes which may be brought to its
notice.
The committee then proceeded, in the light of the testimony, to make
corrections in the poll, showing enough errors, besides those which the
county boards had sought to correct, to give a majority of 7 votes for
the sitting Member.
Besides these, the majority of the committee made a change still
further in favor of the sitting Member by throwing out the entire vote
of Casey precinct,
Sec. 539
because it was ``not certified to by any of the officers of the
election, neither judges nor clerk. Its correctness is vouched for by
no one.'' It appears from the debate\1\ that the return came in as a
mere loose piece if paper, with certain figures on it and the words
``George W. Eagles, clerk.'' There was nothing about it to show that it
was a copy of a poll book required to be made by law and certified by
the proper and legal officers.
The minority of the committee did not approve this disposal of the
Casey precinct return, and say:
The answer to the objection is very simple, that the provision of the
statute is directory merely, and the omission of the judges to do their
duty was not intended by the legislature to disfranchise the voters.
That would be punishing the innocent voters for the sin of the judges.
(See The People v. Cook, 14 Barbour, 259; S. C., 4 Selden, 67; Truehart
v. Addicts, 2 Texas, 217; Ex parte Heath et al., 3 Hill, 43; Batman v.
Meguvan, 1 Metcalf's Ky. Rep., 535.)
It might as well be contended that if an envelope was not used for
inclosing the poll book, before delivering it to the sheriff, that
circumstance would vitiate the election, though the poll book was more
surely protected than it could be in an envelope. The construction of
the sitting Member would invalidate almost every election.
There were also certain questions as to illegal votes, easily
disposed of because of the viva voice method of election.
On the whole the majority found a majority of 109 for the sitting
Member, and reported a resolution declaring him entitled to the seat.
The minority found contestant entitled to a majority of at least 8
votes.
On June 16 and 18 \2\ the report was debated at length in the House,
and the recommendation of the majority was agreed to--yeas 112, nays
61.
539. Although a member stated that credentials were based on forged
returns, the House seated the bearer, there being no conflicting
credentials.--On October 17, 1877,\3\ the House considered the case of
Mr. Romualdo Pacheco, of California, who was challenged at the
organization of the House and stepped aside without taking the oath,
although his name was on the Clerk's roll.
Mr. William M. Springer, of Illinois, who had challenged Mr. Pacheco
and objected to his receiving the oath, stated that by reason of fraud
Mr. Pacheco's opponent had been deprived of two votes, whereby Mr.
Pacheco had been declared elected by one vote. The fraud had been
committed by the clerk in Monterey County, who had altered the record
by changing a figure ``9'' to a ``7.'' The secretary of state had
declined to certify the vote to the governor because of this fraud, but
had been compelled by mandamus proceedings to certify the vote as it
was certified to him by the clerks. Therefore it was claimed that fraud
vitiated the credentials.
It was urged that the credentials of Mr. Pacheco were regular in
form, according to the law, and that there were no other credentials.
His prima facie right was therefore absolute and unquestioned.
The House, without division, voted that Mr. Pacheco be sworn in.
-----------------------------------------------------------------------
\1\ Globe, P. 3076.
\2\ Journal, P. 1127; Globe, pp. 3075, 3123-3133.
\3\ First session Forty-fifth Congress, Journal, P. 24; Record, pp.
92, 93.
Sec. 540
540. The House honored credentials regular in form, but impeached by
a document alleging that the election was not held on the day provided
by law.--On March 4, 1871,\1\ while the Speaker was administering the
oath to the Members-elect at the time of the organization of the House,
Mr. Job E. Stevenson, of Ohio, objected to the administration of the
oath to the Tennessee delegation, and presented and had read the
remonstrance of W. F. Prosser, which stated that the gentlemen of the
delegation were not elected according to the laws of Tennessee, in
that, as he alleged, they had not been elected on the day provided by
the law.
After debate, the House, without division, agreed to a motion that
the Tennessee Members be sworn in, and that the memorial and their
credentials be referred to the Committee on Elections.
541. The New Mexico case of Chaves v. Clever, in the Fortieth
Congress.
Credentials being impeached by a paper from a Territorial officer,
the House declined to permit the oath to be administered until the
prima facie right had been examined.
Credentials issued in accordance with the organic law of a Territory
are recognized in preference to credentials authorized by a conflicting
Territorial law.
Credentials should be based on the face of the returns and not on an
examination of the votes.
On November 21, 1867,\2\ the Speaker laid before the House
credentials from the governor of New Mexico showing the election of
Charles P. Clever as Delegate from the Territory. At the same time a
communication addressed to the Speaker and signed by the secretary of
the Territory was presented. The secretary asserted in this
communication that the law of the Territory made it the duty of the
secretary to give the certificate of election, that the governor had
assumed that duty and given an illegal certificate, and that he, the
secretary, had affixed the seal thereto under protest. The secretary
further asserted that the election of Mr. Clever was shown by including
votes false and fraudulent, and that Mr. J. Francisco Chaves had really
been elected. The letter of the secretary showed the returns to be in
favor of Mr. Clever, however.
Mr. Henry L. Dawes, of Massachusetts, referring to the precedent in
the Colorado case, moved that the credentials and communication be
referred to the Committee on Elections, and that neither claimant be
sworn in until after investigation. This motion was agreed to without
division.
On December 19 \3\ Mr. Henry L. Dawes, of Massachusetts, from the
Committee on Elections, reported that Mr. Clever had the prima facie
right.
It appeared that the organic law organizing the Territory provided
for a certificate such as the governor had given Mr. Clever. It further
appeared that in preceding years certificates had uniformly been issued
in that form. A Territorial law prescribed that the votes should be
returned and counted by the secretary
-----------------------------------------------------------------------
\1\ First session Forty-second Congress, Journal, p. 9; Globe, p. 7.
\2\ First session Fortieth Congress, Journal, p. 255; Globe, p. 778.
\3\ Journal, p. 126; Globe, pp. 291-294.
Sec. 542
and that he should give the certificate; but the committee held that
this law, if in conflict with the organic law, must yield to it.
Furthermore the letter of the secretary showed that on the face of
the returns Mr. Clever had a majority; and this was as far as the
secretary was authorized to go. When he attempted to say that some of
Mr. Clever's votes were not good votes he trenched on the prerogatives
of the House.
The question being taken on agreeing to the report, there were-yeas
78, nays 31; so Mr. Clever was sworn in.
On three several occasions, December 20, 1867, and February 20, and
July 25, 1868,\1\ the time for taking testimony in this case was
extended.
542. The case of Chaves v. Clever, continued.
Instance wherein the person seated after examination of prima facie
right was unseated after examination of final right.
The returns of a precinct being shown to have been fraudulently
altered, the House corrected the return by the count as made at the
polls.
Although the voting place was illegally and fraudulently located, and
there was intimidation at the polls as well as fraudulent alteration of
the returns, the entire vote was not rejected.
Votes cast at precincts having no legal existence at the time of the
election were thrown out by the House.
Returns made up from additions of names of voters on the poll books
instead of from count of the ballots were rejected, although there was
no evidence of error or fraud in the returns.
Poll books not being authenticated by a proper certificate as
required by law, the returns of the precinct were rejected.
On February 9, 1869 \2\ Mr. S. Newton Pettis, of Pennsylvania,
reported from the Committee on Elections on the final right to the
seat. On the face of the returns sitting Member had received a majority
of 540 votes. The committee, as a result of their investigations, found
a majority of 389 for contestant. In reaching this result several
questions were determined:
(1) In one precinct of Rio Arriba County, and one precinct of Mora
County, the votes were apparently correctly counted at the close of the
polls; but after the counting and before the probate judge sent an
abstract with the poll books to the secretary of the Territory, as
prescribed by law, the poll books were fraudulently altered so as to
increase sitting Member's majority by 518 votes. The committee
determined that this excess should be deducted, leaving the vote to
stand as counted at the close of the polls.
(2) In La Junta precinct, in Mora County, it appeared that--
The place of voting was illegally and fraudulently placed beyond the
settlements and resident voters of the precincts and held in a shed
erected for that purpose upon an open plain, and that persons who were
desirous of voting for him were grossly and violently assailed by the
friends of the sitting Member, and by such means were intimidated and
entirely prevented from voting, and that after the polls were closed
the returns were so changed as to fraudulently increase the vote of the
sitting Delegate 100, and that the great majority of persons who voted
at such poll were camp followers and had no legal right to vote under
the laws of the Territory.
-----------------------------------------------------------------------
\1\ Journal, pp. 131, 371, 1195; Globe, pp. 312, 1293, 4479.
\2\ Third session Fortieth Congress, House Report No. 18; 2 Bartlett,
p. 467; Rowell's Digest, p. 225.
Sec. 543
The committee is unable to find any good reason for the fixing of a
place so unusual as was the one in this instance for the holding of an
election, and does believe from the evidence that coarse, improper,
vulgar, and threatening language was used by the friends and followers
of the sitting Member, and evidently for the purpose of intimidating
and preventing persons from voting for the contestant; yet the
committee can not for such reasons recommend the throwing out of the
whole vote of such precinct.
It appearing, however, that the poll book had been so altered as to
give 100 votes to sitting Delegate more than he was entitled to, the
committee corrected the return.
(3) It appeared that pretended elections were held in several
precincts which had no legal existence in September, 1867, the time of
the election, but were created by the legislature of 1868. Therefore
the committee were of opinion that the entire votes of such precincts
should be thrown out.
(4) It appeared--
That the poll books and abstract of the probate judge of Mora County
were not by him sent to the said secretary of the Territory by a
special messenger, as required by law, but came to the hands of William
H. Moore, acting sutler within the military reservation and post of
Fort Union, and were then indorsed to Robert B. Mitchell, the governor
of said Territory, and marked value $5,000, and put in the charge of
the civil express company carrying the mails, and by said express
conveyed to Governor Mitchell, who produced the poll books and abstract
to the secretary of said Territory.
The committee finds, upon reference to the Territorial law, a plain
provision requiring the probate judge of each county to forward to the
secretary of the Territory, by special messenger, a true extract of the
votes cast in their respective counties, together with a poll book of
each precinct, and from the testimony of Vicente Romero and Henry V.
Harris that the law of the Territory in this respect was disregarded,
which, to say the least, is censurable so far as the conduct of the
officers in that behalf is concerned, since there is much force in the
argument of contestant's counsel in favor of throwing out the entire
vote of Mora County for the reason that a plain provision *of the law
was violated in the transmission of the returns from that county, and
especially when considered in connection with the evidence that seems
to point toward the presumption that the returns as forwarded were
tampered with upon the way, and the additional fact in evidence that in
two districts or precincts in said county the vote of 1867 amounted to
948, although in 1866 the same precincts were in one and polled but 337
votes.
(5) In Bernalillo precinct, in the county of that name, the majority
was declared for the contestant from an addition of the poll books
without counting the votes in the ballot box, and although there was no
evidence that the returns were incorrect or fraudulent, yet the
committee recommended that the majority of 139 returned for the
contestant from this precinct be stricken out.
(6) The committee also deducted the vote of Chilili precinct because
``the poll books were not authenticated by a proper certificate
required by law.''
The report was debated at length on February 20,\1\ and on that day
the resolutions as reported, unseating Mr. Clever and seating Mr.
Chaves, were agreed to--ayes 105, noes 10.
Mr. Chaves then appeared and qualified.
543. In the Senate, in 1857, credentials regular in form were
honored, although a memorial from the State legislature impeached the
election of the bearer.--On February 9, 1857,\2\ the credentials of
Graham N. Fitch as Senator-elect from Indiana, were presented in the
Senate. At the same time a protest was presented from the senate of
Indiana in impeachment of the election
-----------------------------------------------------------------------
\1\ Journal, p. 405; Globe, pp. 1421, 1423, 1424; Appendix, p. 248.
\2\ Third session Thirty-fourth Congress, Globe, p. 626; Appendix to
Globe, pp. 193-210.
Sec. 544
of Mr. Fitch. A question at once arose as to whether or not the oath
should be administered to Mr. Fitch on the prima facie evidence of the
certificate. A long and learned debate followed, covering the
precedents of the Senate from its earliest years, from the case of Mr.
Kensey Johns, of Delaware, who in 1794 was not allowed to take the seat
on presentation of his credentials, down to the recent case of Mr.
Dixon, of Kentucky. It was held, on the one hand, that the credential,
when it did not on its face suggest a doubt, should allow the oath to
be taken. On the other hand, it was argued that the credential, being
prima facie evidence, was liable to be rebutted at any stage.
Finally, on February 10, on a motion to commit the credentials, a
test vote was had, and by a vote of yeas 12, nays 33, the motion to
commit was disagreed to. Thereupon the oath was administered to Mr.
Fitch.
544. There being a question as to a Member's election, he was sworn
in and his credentials were referred to a committee with
instructions.--On December 1, 1902,\1\ on the first day of the session,
the Speaker administered the oath of office to several new Members,
including Mr. Carter Glass, of Virginia. No question was raised at the
time the oath was taken, but later Mr. Robert W. Tayler, of Ohio,
presented a resolution as follows:
Resolved, That the credentials this day presented by Carter Glass,
esq., as Representative in the Fifty-seventh Congress from the Sixth
district of Virginia be, and they are hereby, referred to Committee on
Elections No. 1, with direction to inquire and report with all
convenient speed, whether they are based upon returns of a lawful
election for Members of Congress, held in Virginia, November 4, 1902,
and upon what character of registration lists, and under color of what
constitution or ordinances said election was held; and whether at said
election the right of franchise was accorded to all citizens of
Virginia alike, without regard to race or color; and whether any
citizens of the United States who were entitled to vote for Members of
Congress at said election were, under color of any constitution, law,
statute, or ordinance, unlawfully deprived of their rights, privileges,
and immunities secured to diem under the Constitution and laws.
Resolved, That said committee be empowered to hold its sessions at
such times and places in or out of the State of Virginia as it may seem
best, and to summon before it and examine any and all persons and
papers which it may deem necessary to the investigation hereby provided
for, and to employ such stenographers and clerks as may be necessary to
perform its business; and the expenses of such inquiry and
investigation shall be paid out of the contingent fund of the House on
the voucher of the chairman of said committee.
This resolution was referred to the Committee on Elections No. 1 \2\
-----------------------------------------------------------------------
\1\ Second session Fifty-seventh Congress, Journal, p. 6; Record, p.
4.
\2\ On April 28, 1900 (first session Fifty-sixth Congress, Record, p.
4805), Mr. Francis R. Lassiter, of Virginia, appeared at the bar of the
House with credentials in due form entitling him to his seat as
Representative from the Fourth Congressional district of Virginia.
There had also been filed a protest against the seating of Mr.
Lassiter, directed to ``The Speaker and Members of the House of
Representatives,'' alleging defects in the vote in the district, and
signed by ``James Selden Cowden, the candidate receiving the highest
acknowledged opposition vote to Major Lassiter.''
The certificate and protest having been read, the Speaker, David B.
Henderson, of Iowa, said:
``The time has not expired for the party whose communication has been
read to file notice of contest, and the Chair sees no reason why the
gentleman whose credentials have been read should not be sworn in
unless the House desires to take some action in the matter. [A pause.]
The gentleman will please come forward and take the oath.''
Mr. Lassiter came forward, accompanied by Mr. Ray and Mr. Underwood,
and was duly qualified by taking the oath prescribed by law.
Sec. 545
545. The Senate election case of Lane and McCarthy v. Fitch and
Bright, from Indiana, in the Thirty-fourth and Thirty-fifth Congresses.
The Senate decided that a person presenting credentials in due form
should be sworn in, although a question had been raised as to his
election.
In a State whereof the constitution required two-thirds for a quorum
of each house of the legislature, a Senator was elected by a majority
merely of the total membership of the two houses.
In the absence of a State or Federal law regulating election of
Senators the Senate declined to hold that an election must be
participated in by each house in its organized capacity.
On February 9, 1857,\1\ the credentials of Mr. Graham N. Fitch, of
Indiana, for the term ending March 4, 1861, were presented in the
Senate, and at the same time was presented a protest from the Senate of
Indiana urging that he and Jesse D. Bright had not in fact been
elected. The oath was administered after debate as to prima facie right
of Mr. Fitch to be sworn, and the papers in the case were referred to
the Committee on the Judiciary.
On March 13 \2\ Mr. Robert Toombs, of Georgia, submitted a report in
favor of an investigation of the question. With this report were two
documents explanatory of the issues. The first was a memorial of
certain members of the Indiana house:
The undersigned, duly elected and qualified members of the house of
representatives of the general assembly of the State of Indiana, hereby
protest against the pretended election of Jesse D. Bright and Graham N.
Fitch, on the 4th day of February, A.D. 1857, as Senators of the State
of Indiana in the Congress of the United States, the former for the six
years from the 4th day of March next, and the latter for the six years
from the 4th day of March, 1855, by a portion of the senators and
representatives of said general assembly, for the following reasons:
First. There was no agreement of the two houses of the general
assembly, by resolutions or otherwise, to proceed to the appointment or
election of Senators in Congress on said day, or any other day of the
present session of the general assembly.
Second. There was no joint convention of the two houses of the said
general assembly on said day; nor was there any law of the State
authorizing a joint convention on that or any other day for the
appointment or election of United States Senators; nor was there any
resolution, or joint resolution, approved or adopted by the two houses
of the said general assembly, or either of them, authorizing such joint
convention.
Third. Said pretended joint convention was a mere assembly of a
portion of the senators and representatives of the said general
assembly, not in a legislative capacity, but as individuals, without
any authority of law, without precedent in the history of legislature
of the State, and having no legislative sanction; and said senators and
representatives, when so convened, had no more constitutional right to
appoint or elect Senators than any equal number of private citizens of
the State.
Fourth. There was not a constitutional quorum of either house of the
general assembly present in said pretended joint convention, there
being only twenty-three senators and sixty-one representatives, when,
by the eleventh section of the fourth article of the constitution of
this State, it requires two-thirds of each house to constitute a quorum
to do business, and when, by the law of the State, the number of
senators is fixed at fifty and the number of representatives at one
hundred in said general assembly.
Fifth. Because the undersigned, as legally elected and qualified
representatives in said general assembly, have been deprived of their
constitutional right to assist in the legal election of the Senators in
the Congress of the United States by said illegal, revolutionary, and
unauthorized election.
-----------------------------------------------------------------------
\1\ Third session Thirty-fourth Congress; Globe, pp. 626, 774;
Appendix, pp. 193-210.
\2\ Senate Report No. 2, third session Thirty-fourth Congress.
Sec. 545
Sixth. Because the legislature of Indiana, as such legislature,
either by separate action of the two houses, or otherwise, as such
legislature, had no part or voice in such pretended elections, and the
same were in direct violation of the third section of the first article
of the Constitution of the United States and the fourth section of the
said article.
Seventh. Because said pretended elections are wholly void.
Eighth. Because if said elections are held valid, such decision will
destroy the legal existence of the general assembly of this State, and
install in its place any mob which may see proper to take forcible
possession of the house as a joint convention of the general assembly,
without the concurrence of either body, the sanction of the
Constitution, or authority of law.
For these and other reasons which might be named the undersigned
protest against the validity of said pretended elections and ask that
the Senate of the United States may declare them null and void.
Given under our hands this 4th day of February at Indianapolis, A.D.
1857.
Also this statement of Mr. Fitch:
The undersigned, a Senator of the United States from the State of
Indiana, and now acting as a duly qualified Senator of the United
States, submits to the honorable Judiciary Committee of the body to
whom the validity of his election has been referred, the following as
points upon which he believes and is advised that his own rights and
the rights of his State require that evidence be taken and be before
the committee in order to enable them to decide understandingly and
justly in the premises.
First. That he was elected to said office by a majority of all the
members composing the legislature of the State, they being then and for
that purpose assembled in joint convention.
Second. That he was elected, whilst in such joint convention, by a
majority of the legally qualified members of the senate of the State
and of the legally qualified members of the house of representatives,
respectively.
Third. That in order to ascertain the facts stated in the preceding
point, he will be able, by evidence, to show that three of the persons
who are contesting his election were not then, and are not now, legally
members of the said State senate, and had no right whatever, under the
laws and constitution of the State, to be considered, or, in any
particular, to act as members of that body; and that this was at the
time, and still is, well known to the other contestants.
Fourth. That in the organization of the State senate, according to
the constitution, laws, and usage of the State, the lieutenant-governor
presides and superintends the admission of the members, and the taking
the required oaths of office. That upon this occasion, in violation of
such constitution, laws, and usage, the said three members, who were
without the expressly required credentials of election, the certificate
of the proper and only returning officer, and whose seats were also
known to be contested, and on grounds of fraud, also known to be true,
were, by a presiding officer, chosen for the purpose by the members of
the senate, designated as Republicans, contrary to all law, and by
naked wrong, directed, notwithstanding, to be sworn in, and for the
clear purpose, illegal and fraudulent in fact, of defeating an election
of Senators of the United States.
Fifth. That the said convention by whom, as hereinbefore alleged, the
undersigned was elected a Senator of the United States, was assembled
in accordance with an express provision of the constitution of the
State, and that, in accordance with the long and uniform usage of the
State in that particular, the same was adjourned from day to day by the
proper presiding officer thereof, and vested with the authority so to
adjourn, and that each adjournment was made without objection by a
majority of the senate even considering the three persons aforesaid to
have been members of that body being present.
Sixth. That there is not now, in said State, as the undersigned is
advised, any law for the regulation of the election of Senators of the
United States, or in any way providing for the same; and that according
to the best professional and judicial opinions in the State, the
election is to be made by the convention of the legislature assembled
under the constitution of the State, to count the votes and decide upon
the election of governor and lieutenant-governor, as a power
necessarily existing in the legislature, and from the obligations of
the State to elect Senators.
Seventh. That before the adoption of the present State constitution
there was a law regulating such election, and that although the same
was no longer in force, the said convention did, as far as it was
possible, conduct the present election according to the provisions
thereof.
Sec. 545
The undersigned, in conclusion, submits what, indeed, must be obvious
to the committee, that as the witnesses and proofs to the matters above
stated are only to be had in the State of Indiana, and can only
properly be obtained by careful examination, and under the
Superintendence of himself, that it can not be in his power to procure
it at this or the approaching extra session of the United States
Senate, even were he to abandon his duty as a Senator, which he has no
right to do, and proceed at once to the place where the testimony is to
be had. He further submits, therefore, that the committee will so
dispose of the matter now as will enable him and the contestants at a
future period to present the entire case fairly and fully before them.
No action was taken before the expiration of the Congress.
At the first of the next session the papers were again referred to
the Judiciary Committee, and on January 21, 1858,\1\ Mr. James A.
Bayard, of Delaware, from that committee, reported a resolution:
Resolved, That in the case of the contested election of the Hon.
Graham N. Fitch and the Hon. Jesse D. Bright, Senators returned and
admitted to their seats from the State of Indiana, the sitting members,
and all persons protesting against their election, or any of them by
themselves or their agents or attorneys, be permitted to take testimony
on the allegations of the protestants and the sitting members touching
all matters of fact therein contained, before any judge of the district
court of the United States, or any judge of the supreme or circuit
courts of the State of Indiana, by first giving ten days' notice of the
time and place of such proceeding in some public gazette printed at
Indianapolis.
Mr. Lyman Trumbull, of Illinois, submitted views of the minority:
The legislature of Indiana, called the general assembly, is composed
of a Senate of fifty members and a house of representatives of one
hundred members, and two-thirds of each house is, by the constitution,
required to constitute a quorum thereof. Each house is declared to be
judge of the election and qualification of its members, and required to
keep a journal of its proceedings. No regulation exists by law in
Indiana as to the manner in which members of the State senate are to be
inducted into office. No law or regulation is there existing providing
the time, place, or manner of electing United States Senators.
It appears by the journal of the senate of Indiana that on the
opening of the senate at the meeting of the legislature, January 8,
1857, forty-nine of the senators were present, and that all the newly
elected members were duly sworn, took their seats, and continued
thereafter to act with the other senators till the close of the
session. The only absentee senator took his seat January 13, 1857.
Protests were filed contesting the seats of three of the newly elected
members, which were afterwards examined and considered by the senate,
and they were each found and declared to be entitled to seats,
respectively, by majorities more or less numerous, all which is entered
upon and appears by the journal of said senate.
The State constitution makes it the duty of the speaker of the house
of representatives to open and publish the votes for governor and
lieutenant-governor in the presence of both houses of the general
assembly. No provision exists by the constitution making such meeting
or presence of the two houses a convention, or providing any officers
therefor, or authorizing or empowering the same to transact any
business whatever, except by joint vote forthwith to proceed to elect a
governor or lieutenant-governor in case of a tie vote.
Both houses being, in session, the speaker notified them that he
should proceed to open and publish the votes for governor and
lieutenant-governor on Monday, the 12th day of January, at 2.30 o'clock
p.m., in the hall of the house. Shortly before the hour arrived the
president of the senate announced that he would proceed immediately to
the hall of the house of representatives; and thereupon, together with
such senators as chose to go, being a minority of the whole number
thereof, he repaired to the hall of the house of representatives, and
there, in their presence, and in the presence of the members of the
house, the votes for governor and lieutenant-governor were duly counted
and published by the speaker, and A. P. Willard, the then president of
the senate, was declared duly elected governor and A. A. Hammon
lieutenant-governor of said State.
At the close of this business, a senator present, without any vote
for that purpose, declared the meeting (by him then called a
convention) adjourned to the 2d day of February, 1857, at 2 o'clock.
-----------------------------------------------------------------------
\1\ First session Thirty-fifth Congress, Senate Report No. 19.
Sec. 545
The senate hearing of this proceeding, on the 29th day of January,
1857, as appears by its journal, passed a resolution protesting against
the proceedings of said so-called convention, disclaiming all
connection therewith or recognizance thereof, and protesting against
any election of United States Senators or any other officer thereby. On
the 2d of February, 1857, the president of the senate, with a minority
of its members, again attended in the hall of the house, and without
proceeding to any business, and without any vote, declared the meeting
(by him called a convention) adjourned until the 4th day of February,
1857, at which time the president of the senate, with twenty-four of
its members, went to the hall of the house of representatives, and
there they, together with sixty-two members of the house, proceeded to
elect two Senators of the United States, to wit, Graham N. Fitch and
Jesse D. Bright, they each receiving eighty-three votes, and no more,
at their respective elections, twenty-three of which votes were by
members of the senate.
Against these elections so made protests by twenty-seven members of
the senate of Indiana and thirty-five members of the house of
representatives of said State have been duly presented, alleging that,
in the absence of any law, joint resolution, or regulation of any kind
by the two houses composing the legislature of Indiana providing for
holding a joint convention, it is not competent for a minority of the
members of the senate and a majority, but less than a quorum, of the
members of the house of representatives of said State to assemble
together and make an election of United States Senators.
Of the facts as herein stated there is no dispute, as we understand.
It is now alleged by the sitting Senators, respectively, as we
understand the substance of their allegations, in contradiction of the
senate journal, that the three State senators whose seats were
contested were not legally elected and qualified; that they were
without the expressly required credentials, the certificate of the
proper and only returning officer, and that they were, notwithstanding,
directed to be sworn in by a presiding officer chosen for the purpose
by the members of the senate designated as Republicans, for the clear
purpose, illegal and fraudulent in fact, of defeating an election of
Senators of the United States.
Under these circumstances we object to the adoption of the resolution
for the taking of testimony to sustain these allegations, because the
said election of United States Senators, so conducted, is obviously
illegal and insufficient, and can not be cured by any proof of these
allegations; and we insist that the Senate should now proceed to a
definitive decision of the question.
The report was debated on February 15 and 16, 1858,\1\ resulting in
agreement to the resolution in amended form as follows:
Resolved, That in the case of the contested election of the Hon.
Graham N. Fitch and the Hon. Jesse D. Bright, Senators returned and
admitted to their seats from the State of Indiana, the sitting members,
and all persons protesting against their election, or any of them, by
themselves or their agents or attorneys, be permitted to take testimony
on the allegations of the protestants and the sitting members touching
all matters of fact therein contained, before any judge of the district
court of the United States, or any judge of the supreme or circuit
courts of the State of Indiana, by first giving ten days' notice of the
time and place of such proceeding in some public gazette printed at
Indianapolis: Provided, That the proofs to be taken shall be returned
to the Senate of the United States within ninety days from the passage
of this resolution: And provided, That no testimony shall be taken
under this resolution in relation to the qualification, election, or
return of any member of the Indiana legislature.
On May 24 \2\ Mr. George E. Pugh, of Ohio, from the Committee on the
Judiciary, submitted a report as follows:
The Committee on the Judiciary, to whom were referred the credentials
of Graham N. Fitch and Jesse D. Bright, Senators from the State of
Indiana, together with the documents and testimony relative to that
subject, have had the same under consideration, and report, by
resolution, as follows:
Resolved, That Graham N. Fitch and Jesse D. Bright, Senators returned
and admitted from the State of Indiana, are entitled to the seats which
they now hold in the Senate as such Senators aforesaid, the former
until the 4th of March, 1861, and the latter until the 4th of March,
1863, according to the tenor of their respective credentials.
-----------------------------------------------------------------------
\1\ First session Thirty-fifth Congress, Globe, pp. 698-710, 720-724.
\2\ Senate Report No. 275; Globe, p. 2353; 1 Bartlett, p. 629.
Sec. 546
On June 11 \1\ this resolution was debated at length, and on June
12,\2\ Mr. Hannibal Hamlin, of Maine, proposed to amend the resolution
by striking out all after the word ``resolved,'' and inserting:
That the case of Jesse D. Bright and Graham N. Fitch be recommitted
to the Committee on the Judiciary, with instructions to report
specially the grounds on which the resolution is based declaring said
Bright and Fitch elected.
On motion by Mr. Trumbull to amend the proposed amendment by striking
out all after the word ``that'' and inserting ``in the opinion of the
Senate, no election of a Member of this body made by the legislature of
a State consisting of two branches is valid, when made in a meeting of
individual members of both, unless such meeting for that purpose was
prescribed by law, or had been previously agreed to by each house
acting separately in its organized capacity, or is participated in by a
majority of the members of each house, or is subsequently ratified in
some form by each house in its organized capacity,'' it was determined
in the negative yeas 17, nays 26.
Mr. Hamlin's motion was then disagreed to--yeas 16, nays 34.
On motion by Mr. Trumbull to amend the resolution by inserting after
the word ``are'' and before the word ``entitled'' the word ``not,'' it
was determined in the negative--yeas 23, nays 30.
Then the resolution reported by the Judiciary Committee was agreed
to.
546. The case of Lane and McCarty v. Fitch and Bright, continued.
In 1859 the Senate declined to admit claimants of seats to the
privileges of the floor.
A State legislature may not revise a decision of the United States
Senate that two persons have been duly elected Senators.
A decision of the Senate, made after examination of all the facts, as
to election of a Senator is judicial in its nature and final,
precluding further inquiry.
At the next session of Congress, on January 24, 1859,\3\ the Vice-
President presented a memorial of the State of Indiana, by its senators
and representatives in general convention assembled, representing that
it is the wish and desire of the State that the Hon. Henry S. Lane and
the Hon. William Monroe McCarty be admitted to seats in the Senate of
the United States as the only legally elected and constitutionally
chosen Senators of the State of Indiana; which was read and referred to
the Committee on the Judiciary.
On the same day Mr. William H. Seward, of New York, presented this
resolution, which, on January 26, was laid on the table after debate:
\4\
Resolved, That the Hon. Henry S. Lane and the Hon. William M.
McCarty, who claim to have been elected Senators from the State of
Indiana, be entitled to the privileges of admission on the floor of the
Senate until their claims shall have been decided.''
On February 3, 1859,\5\ Mr. James A. Bayard, of Delaware, submitted
from the Committee on the Judiciary a report reviewing the proceedings
as to Messrs.
-----------------------------------------------------------------------
\1\ Globe, pp. 2923-2949.
\2\ Globe, p. 2981.
\3\ Second session Thirty-fifth Congress, Globe, pp. 534, 535.
\4\ Globe, pp. 599-602.
\5\ Senate Report No. 368.
Sec. 546
Fitch and Bright up to the consideration of the resolution declaring
them entitled to their seats, and continues:
The resolution was under consideration in the Senate, and fully
debated at several subsequent times, and was finally, after the
rejection of several proposed amendments, passed by the Senate without
amendment or alteration. In the opinion of the committee, this
resolution (no motion having been made to reconsider it) finally
disposed of all questions presented to the Senate involving the
respective rights of the Hon. Graham N. Fitch and the Ron. Jesse D.
Bright to their seats in the Senate as Senators from the State of
Indiana for the terms stated in the resolution. It appears by the
memorial that the legislature of Indiana, at its recent session in
December last, assumed the power of revising the final decision thus
made by the Senate of the United States under its unquestioned and
undoubted constitutional authority to ``be the judge of the
qualifications of its own members.'' Under this assumption, it also
appears by the journals of the senate and house of representatives of
the State of Indiana, the legislature of Indiana, treating the seats of
the Senators from that State as vacant, proceeded, subsequently, by a
concurrent vote of the senate and house of representatives of the
State, to elect the Hon. Henry S. Lane as a Senator of the United
States for the State of Indiana, to serve as such until the 4th of
March, 1863, and the Hon. William Monroe McCarty as a Senator for the
same State, to serve as such until the 4th of March, A. D. 1861. Under
this action of the legislature of Indiana those gentlemen now claim
their seats in the Senate of the United States.
It may be conceded that the election would have been valid, and the
claimants entitled to their seats, had the legislature of Indiana
possessed the authority to revise the decision of the Senate of the
United States that Messrs. Fitch and Bright had been duly elected
Senators from Indiana, the former until the 4th of March, 1861, and the
latter until the 4th of March, 1863.
In the opinion of the committee, however, no such authority existed
in the legislature of Indiana. There was no vacancy in the
representation of that State in the Senate; and the decision of the
Senate, made on the 12th of June, 1858, established finally and (in the
absence of a motion to reconsider) irreversibly the right of the Hon.
Graham N. Fitch as a Senator of the State of Indiana until the 4th of
March, 1861, and the right of the Hon. Jesse D. Bright as a Senator
from the same State until the 4th of March, A. D. 1863.
The decision was made by an authority having exclusive jurisdiction
of the subject; was judicial in its nature; and, being made on a
contest in which all the facts and questions of law involving the
validity of the election of Messrs. Fitch and Bright, and their
respective rights to their seats, were as fully known and presented to
the Senate as they are now in the memorial of the legislature of
Indiana, the judgment of the Senate then rendered is final, and
precludes further inquiry into the subject to which it relates.
There being, by the decision of the Senate, no vacancy from the State
of Indiana in the Senate of the United States, the election held by the
legislature of that State at its recent session is, in the opinion of
the committee, a nullity, and merely void, and confers no rights upon
the persons it assumed to elect as Senators of the United States.
The committee ask to be discharged from the further consideration of
the memorial of the legislature of Indiana.
Mr. Jacob Collamer, of Vermont, presented views of the minority, on
behalf of himself and Mr. Lyman Trumbull, as follows:
The power of the Senate to judge of the election and qualification of
its own members is unlimited and abiding. It is not exhausted in any
particular case by once adjudicating the same, as the power of
reexamination and the correction of error or mistake incident to all
judicial tribunals and proceedings remains with the Senate in this
respect, as well to do justice to itself as to the States represented
or to the persons claiming or holding seats. Such an abiding power must
exist, to purge the body from intruders, otherwise any one might retain
his seat who had once wrongly procured a decision of the Senate in his
favor by fraud or falsehood, or even by papers forged or fabricated.
In what cases and at whose application a rehearing will at all times
be granted is not now necessary to inquire; but when new parties, with
apparently legal claim, apply, and especially when a sovereign State,
by its legislature, makes respectful application to be represented by
persons in the Senate legally elected, and insists that the sitting
members from that State were never legally chosen, we consider that
Sec. 546
the subject should be fully reexamined, and that neither the State, the
legislature, nor the persons now claiming seats can legally or justly
be estopped, or even prejudiced, by any former proceedings of the
Senate to which they were not parties.
At the first session of the legislature of Indiana after the present
sitting members were declared by the Senate as entitled to their seats,
and at the earliest time it could take action, it declared their
pretended election as inoperative and void, and that the State was in
fact unrepresented; and they proceeded to elect H. S. Lane and William
M. McCarty as Senators of the United States for said State, according
to the Constitution of the United States; and they send here their
memorial, alleging that the present sitting members were never legally
elected; and they show facts, in addition to what was heretofore
presented to the Senate, tending, as they consider, to sustain this
allegation. The said Lane and McCarty present their certificates and
claim their seats. We consider the matters stated in said memorial as
true. The said Lane and McCarty have presented their brief sustaining
their claim to seats, which is in the words following:
Brief of W. M. McCarty and Henry S. Lane, submitted to the Judiciary
Committee of the Senate.
The State is entitled to the office. The legislature is her supreme
instrument and donee of the power to elect Senators. It is the creature
of the constitution, which is the chart of its power, vested only in
two coordinate branches; a quorum of two-thirds of the members is
requisite to give either a legal entity; each is equivalent in power,
with an absolute veto on the power of the other.
The legislature is a corporation aggregate, with only such power as
its creator has seen fit to endow it with, to be exercised in
conformity to the laws of its birth.
To the joint wisdom and counsel of these colleges is the legislative
power intrusted. It is not parceled out to its component elements in
integrals, neither is it vested in an amalgamated body of the two. The
one is erected as a barrier to the other. The ordeal of both must be
passed. This guaranty against abuse can not be broken down without
destroying one of the safeguards of our Government. The sovereign voice
is an unit. The power that utters it is an entirety--an invisible,
intangible, artificial person. The power is in the organism called
``the general assembly,'' and not in the individual members. It is not
the rights or powers of the members, but the delegated trust powers of
the State that are wielded in senatorial elections or other exercises
of legislative powers. Without a quorum of either house it did not
exist--without either, the legislature did not exist, and without a
legislature no election would be had.
Now, the facts are that a quorum of neither house was present at the
pretended election of Messrs. Bright and Fitch, nor even a majority of
the senate, nor did either house prescribe the time, place, or manner
of electing.
It is of the essence of legislative power that its exercise shall be
free from all restraint; each body free to deliberate and act in its
duties; each entitled to its full powers. The facts are that the
senate, upon eight occasions, refused to go into joint convention with
the house, and at no time consented. She could not be compelled to
merge her individuality, or surrender her veto power, or adopt the
joint-vote mode of electing Senators; or, in other words, dilute or
annihilate her power, upon the mandate of the house, as that would
degrade her from an equal to an inferior. On the contrary, she had the
right to determine the time, place, and manner, and did do it by
resolution, to elect by separate vote, at a proper time, in which the
house never concurred. Where diverse duties are imposed, she must
determine which are most imperative and shall have priority.
The constitution of Indiana only provides for a joint convention upon
the contingency of a tie vote for governor and lieutenant-governor.
That contingency did not exist; therefore the convention did not. To
say that a duty to form a joint convention creates it is as absurd as
to say that the subpoena of a witness works his presence, or the
commands of the decalogue their observance.
Failing to get the senate into a joint convention, a false record of
that pretended fact was made, to be used as evidence, and which has
been used as veritable and true, and the absolute verity and the
unimpeachable quality of a record claimed for the fabrication.
The resolves of the senate are those of the whole body. The mutinous
senators who usurped the name and power of the senate in said pretended
convention were subject to arrest by order of that body for absence,
and the attempt to nullify the will of the majority by attempting a
business at a time, place, and in a manner vetoed by that body by a
resolve, then unvacated and unrescinded. Said convention,
if it existed, expired with the duty that called it into life. The
president of the senate, when inaugurated governor, his office as
president of the senate expired, and with it that of his deputy
president. The president not only usurped the power to appoint a
clerk--an office not known to the law and void--who only authenticated
this pretended election by interpolating it into the journal of the
house. This president, whose power expired with that of his creator,
arrogated that of adjourning it to a fixed day; in other words,
commanding it to obey his arbitrary rescript; and, at a subsequent one,
the more imperious mandate commanded them to elect Senators, no
agreement whatever having been had by the house therefore as to time,
place, and manner.
We aver that not only did no usage exist in Indiana, but that in no
solitary instance was an election had without the consent of both
houses, fixing time, place, etc., by law or resolution. While said
pretended convention was in existence, but adjourned to a fixed day,
numerous attempts were made in both houses to create one by the members
who voted for Messrs. Bright and Fitch, thus offering evidence that
they did not consider that one had been formed and was in existence. No
forced convention could be had. Mutual consent was necessary, and it
was never had by a vote, which is the only mode of altering the will of
a legislative body.
The history of joint conventions in Indiana will also show that no
other business was ever transacted than that for which it was specially
convened. And we insist that the validity of the acts of a joint
convention is due to the separate action of the two houses as the
general assembly. It is also necessary to the validity of all elections
by corporate bodies that notice be given of the time, etc., and the
journals of neither house show any such notice or any conventional
agreement for the same.
Upon the facts and law above no legal election could have been had.
To sustain the title of Messrs. Bright and Fitch the constitution of
Indiana, depositing her legislative power in two coordinate houses,
must be broken down--that which requires two-thirds of the members to
exercise any of her attributes of sovereignty, and that one house can
not coerce the other. Not only is this election in defiance of these
injunctions, but in the face of a positive dissent by one branch, armed
by the people with an absolute veto. But a presiding officer, who is no
part of the legislature, usurped the powers and prerogatives of the
legislature; all the forms and guaranties with which the people hedged
in their legislative servant were disregarded, and it is claimed that
the act is as valid as if they had been observed.
To sustain Messrs. Bright and Fitch the constitution of Indiana is
made a dead letter. Will the Senate, the peculiar guardians of State
rights, reared up for that especial purpose, exclude Indiana from her
weight and voice in it by instruments empowered by her? Will she be
allowed to interpret her own constitution and acts, or will the Senate,
under any pretense, blot her out of the confederacy, and realize all
those fears portrayed by some of the framers of the Constitution by an
absorption of and encroachment upon State rights?
The legislative power enshrines and protects all rights subject to
its jurisdiction. Prior to the confederation the several States owed
this duty to their citizens. They did not surrender it, but intrusted
it to the Federal for their better protection, with the right
guaranteed them of a voice in the Senate as a means of enforcing this
duty through the Federal instrument.
We deny that under a constitutional grant of power, with prescribed
modes of its exhibition, that you can discriminate between elections
and laws. The selection of a general, upon whose skill the fate of an
army or the country may depend, or of a judge upon whose legal
attainments and integrity the lives, liberties, and property of the
citizen may depend, is of less moment than some petty law.
The same power is as requisite to the creation of the one as the
other.
But it may be said that this question is res adjudicata.
We deny that our rights or title are barred by a decision had before
they were created.
We deny that the judicial power of the Senate is capable of self-
exhaustion. We deny that the political right of the State is capable of
annihilation without annihilating the Constitution which creates the
right.
We insist that the right to judge of the election and qualification
of members must continue while the term continues.
The qualifications are continuing conditions of title.
We deny that courts are ever estopped by their own action.
We deny that sovereigns are estopped.
Sec. 546
We deny that Indiana was, prior to this time, a party to the
proceedings of the Senate, or had opportunity to allege or elicit the
true facts.
We deny the power of the Senate, under the power to judge, to create
Senators for Indiana.
We claim for her a superior knowledge of her own acts and grants.
We insist that the simple admission of a Senator to his seat upon
credentials is a decision, and that it was never pretended this
precluded his ouster if his title were not good.
If the Senate have not power to exclude foreign elements at all
times, it is not equal to the duties intrusted to its guardianship.
And we will not believe that the Senate is the only tribunal on earth
whose wrongs, once done, are eternal and irrevocable.
W. M. McCarty.
H. S. Lane.
In the case of the State of Mississippi, in the House of
Representatives in the Twenty-fifth Congress, the power to reexamine a
decision made on an election of Members was fully considered and
decided.
On February 14\1\ the report was considered by the Senate, and an
amendment was proposed by Mr. Seward to amend the resolution to
discharge the Committee on the Judiciary by striking out all after
``resolved'' and inserting:
That Henry S. Lane and William M. McCarty have leave to occupy seats
on the floor of the Senate pending the discussion of the report of the
Committee on the Judiciary on the memorial of the legislature of
Indiana declaring them her duly elected Senators, and that they have
leave to speak to the merits of their rights to seats and on the report
of the committee.
On motion by Mr. Pugh to amend the amendment proposed by Mr. Seward,
by striking out all after ``that'' and inserting ``the resolution of
the Senate, adopted June 12, 1858, affirming the right of Graham N.
Fitch and Jesse D. Bright as Senators elected from the State of
Indiana, the former until the 4th day of March, 1861, and the latter
until the 4th day of March, 1863, was a final decision of all the
premises then in controversy, and conclusive as well upon the
legislature of Indiana, and all persons claiming under its authority,
as upon the Senators named in the resolution.''
On motion by Mr. Harlan--
That all the papers in this case be recommitted to the Committee on
the Judiciary with instructions to inquire whether Graham N. Fitch and
Jesse D. Bright or Henry S. Lane and W. M. McCarty, or any one of them,
has been elected to the office of Senator of the United States from the
State of Indiana as provided by the Constitution of the United States,
and in accordance with the laws and usages of the State of Indiana, and
report the facts connected with and bearing on the supposed election of
each to the Senate, and that the contestants be allowed to appear at
the bar of the Senate when such report shall be made and argue their
right to seats.
After debate, a division of the motion made by Mr. Harlan was called
for by Mr. Stuart; and the question being taken on the first division,
viz, ``that all the papers in this case be recommitted to the Committee
on the Judiciary,'' it was determined in the negative--yeas 14, nays
32; so the motion to recommit with instructions was disagreed to.
The question recurring on agreeing to the amendment proposed by Mr.
Pugh to the amendment proposed by Mr. Seward, it was determined in the
affirmative--yeas 30, nays 16.
On the question to agree to the amendment of Mr. Seward, as amended,
it was determined in the affirmative--yeas 29, nays 16.
-----------------------------------------------------------------------
\1\ Globe, pp. 1014-1019; Appendix, pp. 129-448.
Sec. 547
On the question to agree to the resolution from the Committee on the
Judiciary, amended, as follows:
Resolved, That the committee be discharged from the further
consideration of the memorial of the State of Indiana, and that the
resolution of the Senate adopted June 12, 1858, affirming the right of
Graham N. Fitch and Jesse D. Bright as Senators elected from the State
of Indiana, the former until the 4th day of March, 1861, and the latter
until the 4th day of March, 1863, was a final decision of all the
premises then in controversy, and conclusive as well upon the
legislature of Indiana, and all persons claiming under its authority,
as upon the Senators named in the resolution.
It was determined in the affirmative--yeas 30, nays 15.
547. An instance wherein the House authorized an investigation of the
credentials and elections of persons already seated on prima facie
showing.
Instance wherein the House ordered examination of the title to a seat
on the strength of a memorial.
At the organization of the House on March 4, 1871,\1\ a question was
raised as to the swearing in of the Mississippi delegation, whose names
were on the roll of the Clerk. But after debate the House ordered the
oath to be administered to them, and the credentials to be referred to
the Committee on Elections.
On April 17 \2\ Mr. Luke P. Poland, of Vermont, from the Committee on
Elections, reported this resolution, which was agreed to by the House:
Resolved, That the Committee on Elections be authorized to take
testimony in relation to the credentials of the sitting Members from
the State of Mississippi, the validity of the election under which said
Members claim seats, and the allegations touching the same, contained
in the memorial of A. C. Fisk, and that said committee, for that
purpose, be authorized to send for persons and papers.
548. Certain instances wherein the House has referred credentials to
the Elections Committee, the oath not being administered to the
bearers.--On March 16, 1871,\3\ the Speaker laid before the House the
credentials of Thomas H. Reeves, claiming to be a Representative at
Large from the State of Tennessee. The credentials were referred to the
Committee of Elections, Mr. Reeves not being, sworn in.
On March 4 \4\ the credentials of J. P. M. Epping, elected
Representative at Large from the State of South Carolina, were referred
to the Committee of Elections, Mr. Epping not being sworn in.
On March 7 \5\ the credentials of R. T. Daniels, as Member at Large
from Virginia, were similarly referred to the Committee of Elections.
549. Federal law directs the issuance and prescribes the form of
credentials of Senators-elect.--The Revised Statutes, section 18,
provide:
It shall be the duty of the executive of the State from which any
Senator has been chosen to certify his election, under the seal of the
State, to the President of the Senate of the United States.
The above law dates from July 25, 1866.
-----------------------------------------------------------------------
\1\ First session Forty-second Congress, Journal, p. 10; Globe, pp.
7-10.
\2\ Journal, p. 178; Globe, p. 736.
\3\ First session Forty-second Congress, Journal, p. 73; Globe, p.
132.
\4\ Journal, p. 13; Globe, p. 11.
\5\ Journal, p. 15; Globe, p. 16.
Sec. 550
Section 19 of the Revised Statutes, dating also from July 25, 1866,
provides:
The certificate mentioned in the preceding section shall be
countersigned by the secretary of state of the State.\1\
550. The Speaker declined to administer the oath to a person whose
prima facie right was under investigation by the House.--On February
15, 1884 \2\ the House had under consideration the contested election
case of Chalmers v. Manning. The resolution before the House was to
discharge the committee from further consideration of the prima facie
right to the seat, and to this was pending a substitute declaring that
Manning held perfect credentials and was entitled to be sworn in.
During the debate Mr. Andrew G. Curtin, of Pennsylvania, advanced to
the Clerk's desk, in company with Mr. Manning, and said:
I present Van H. Manning to be sworn in as a Member of this House
upon the certificate of the governor of Mississippi, attested by the
broad seal of that great and loyal State.
A point of order being made, the Speaker \3\ said:
The Chair thinks it unnecessary to decide any point of order in this
case, because the question whether or not Mr. Manning is entitled to
take the oath of office is the very question which the House is now
considering and upon which it is about to vote. Of course the Chair
would not undertake to administer the oath of office to any person
claiming to be a Member-elect while the House is considering his right
to a seat.
551. The Senate election case of David Turpie in the Fiftieth
Congress.
The Senate gave immediate prima facie effect to regular credentials,
although a memorial impeached the regularity and legality of the
election.
The Senate declined to inquire into the titles of the members and
presiding officer of a legislative body, the legality of the
organization being unimpeached.
On February 10, 1887,\4\ the President pro tempore laid before the
Senate resolutions adopted by a joint convention of the two houses of
the general assembly of the State of Indiana, reciting that at the
joint convention of February 2, 1887, Hon. Alonzo G. Smith, a member of
the senate of the said assembly, had declared that Hon. David Turpie
had received a majority of all the votes cast in the said convention
for United States Senator; that the speaker of the house of
representatives presiding at the joint convention had declared that
there had been no legal election of a United States Senator, and that
it was believed that there were enough illegal votes cast for the said
Hon. David Turpie to overcome the apparent majority of votes cast for
him. This document was referred to the Committee on Privileges and
Elections.
On February 16 \5\ the President pro tempore presented ``what
purported to be the credentials of Hon. David Turpie, elected a Senator
from the State of Indiana for six years from the 4th of March next.''
-----------------------------------------------------------------------
\1\ Credentials of Members of the House are in forms prescribed by
the laws of the several States.
\2\ First session Forty-eighth Congress, Record, p. 1168; Journal,
pp. 587, 588.
\3\ John G. Carlisle, of Kentucky, Speaker.
\4\ Second session Forty-ninth Congress, Record, p. 1564.
\5\ Record, p. 1801.
Sec. 551
These credentials were in form as follows:
The State of Indiana, Executive Department.
In pursuance of the provisions of section 18 of the Revised Statutes
of the United States, I, Isaac P. Gray, governor of the State of
Indiana, do hereby certify that the legislature of said State assembled
in joint assembly at 12 o'clock meridian on Wednesday, the 2d day of
February, 1887, pursuant to adjournment, to elect a Senator in
Congress, to serve for a term of six years, commencing on the 4th day
of March, 1887; that the Hon. David Turpie, of the State of Indiana,
received 76 votes, being a majority of the votes of all the members of
said joint assembly, and a majority of all the members elected to said
legislature, all the members elected to said legislature being present
and voting; and the said David Turpie was declared duly elected Senator
in Congress, to represent the State of Indiana in Congress for the said
term of six years, commencing on the 4th day of March, 1887.
In witness whereof I have hereunto set my hand and caused to be
affixed the seal of the State, at the city of Indianapolis, this 9th
day of February, in the year of our Lord 1887, the seventy-first year
of the State, and of the independence of the United States the one
hundred and eleventh.
Isaac P. Gray,
Governor of Indiana.
The above and foregoing is the certificate, and the signature thereto
attached the genuine signature of Isaac P. Gray, governor.
Charles F. Griffin,
Secretary of State.
To Hon. John Sherman,
President of the Senate of the United States of America.
On motion of Mr. George F. Hoar, of Massachusetts, the paper was
referred to the Committee on Privileges and Elections.
On March 1, 1887,\1\ at a later date in the same session, Mr. Hoar
offered the following, which was agreed to:
Ordered, That the Committee on Privileges and Elections be discharged
from the further consideration of * * * a paper purporting to be the
credentials of David Turpie, and a resolution of the joint convention
of the legislature of Indiana contesting the validity of the election
of David Turpie as United States Senator from that State.
On the same day, at a later time, Mr. Orville H. Platt, of
Connecticut, inquired whether or not the action taken would have any
effect on the question of accepting the credentials. If it would have
such effect, he proposed to make a motion to reconsider.
Mr. Hoar replied:
Under the rules of the Senate all papers committed to any committee
are to be returned to the files of the Senate at the expiration of the
Congress, and the function of the committee itself expires with the
Congress. If the credentials of Mr. Turpie had been retained by the
Committee on Privileges and Elections without action until noon on the
4th day of March, under the operation of that general rule precisely
the thing would have happened then that has happened this morning--that
is, the paper would have gone back to the files of the Senate and the
committee would have been discharged from its consideration. The only
alternative to that course would have been an assumption by the
committee or by the Senate at the present session to deal with the
credentials of a gentleman claiming to be a Senator-elect before the
time had arrived for the beginning of his term, and before he had
presented himself to be heard upon the subject.
The Senate is a continuing body which was organized at the beginning
of the Government in 1789, and that organization is to continue, as we
fondly hope, until time shall be no more, certainly
-----------------------------------------------------------------------
\1\ Record, pp. 2461, 2474.
Sec. 551
until the destruction of the American Constitution. It is therefore
possible that it might be within the constitutional power of the Senate
to determine in advance the right of a Senator to seat upon this floor,
and it would be a violation of all constitutional precedent, and it
would be, in my judgment, a violation of the sense of justice and
propriety of the Senate and of the American people.
The effect, therefore, of this report is simply to remand to the
action of the Senate to be taken after the 4th of March without
prejudice--without being in the least affected by any action now (on)
any question which any person may see fit to raise, and that is all. No
prejudice, for no prejudice against any person who may conceive himself
entitled to a seat on this floor hereafter will arise or has arisen in
consequence of the report of the committee or of the Senate in
accepting it.
On March 3,\1\ Mr. Benjamin Harrison, of Indiana, presented a
memorial of eighteen State senators of Indiana, and of the house of
representatives of that State, protesting against the alleged election
of Mr. Turpie. This memorial was laid on the table.
On December 5, 1887,\2\ at the swearing in of Senators-elect, Mr.
Turpie appeared and took the oath without objection. But immediately
thereafter Mr. Hoar presented the memorial of a committee of members of
the general assembly of Indiana in regard to Mr. Turpie's election.
This paper, together with all other papers on file relating to the
case, were referred to the Committee on Privileges and Elections.
On May 14 \3\ Mr. Hoar submitted the report of the committee, as
follows:
Mr. Turpie received a certificate of his election from the governor
of Indiana, which constitutes a prima facie title to his seat, and has
been admitted thereupon to take the oath.
The two houses of the legislature of Indiana, having failed to concur
in the appointment of a Senator, met in joint convention, and after
sundry ballotings, in which no person had a majority of the votes cast,
a ballot was had in which Mr. Turpie received 2 more votes than all
others. A quorum of said joint convention and a quorum of each house
was present and voted. The proceedings were in all respects regular,
and resulted in a valid election of Mr. Turpie, unless the facts which
the remonstrants offer to prove constitute a valid objection.
They offer to show, first, that, there being a vancancy in the office
of lieutenant-governor, the Hon. Robert S. Robertson was duly elected
to fill such vacancy, and thereby became entitled by the constitution
and laws of Indiana to preside over the senate; but that, on the
meeting of the senate on the 6th day of January, 1887, being the first
day of the session of the legislature at which said alleged election of
Mr. Turpie took place, one Alonzo G. Smith usurped the office and
function of such presiding officer, was supported and maintained in
such usurpation by a majority of said body, excluded Mr. Robertson from
said office and function, and continued so to preside and so to exclude
Mr. Robertson during all the sessions of said senate, including its
attendance on said joint convention, until after the said alleged
election of Mr. Turpie.
Second. That before said alleged election the senate wrongfully, and
for the purpose of obtaining a majority for said Turpie in said joint
convention, declared two members, who had been duly and lawfully
elected members thereof, not entitled to their seats, and declared two
other persons, who had not been duly and lawfully elected, to be
entitled to such seats, and thereupon seated such persons, and that
this was done without right, without evidence, and without hearing or
debate; and that said persons so seated thereafter were present and
voted for Mr. Turpie in said convention, and that without such votes
said Turpie would not have received a majority.
The committee are of the opinion that the facts offered, if proved,
will not warrant the Senate in declaring the sitting Member not
entitled to his seat. There can be no doubt that the body in question
was the constitutional senate of Indiana. The journals of both houses
of the legislature of the State have been submitted to us. It appears
that the body was recognized as the senate by the governor and by the
house of representatives. Statutes, to which its constitutional assent
was necessary, were enacted and have become part of the law of the
State.
-----------------------------------------------------------------------
\1\ Record, p. 2627.
\2\ First session Fiftieth Congress, Record, p. 4.
\3\ Senate Report No. 1291.
Sec. 552
It seems to us that, without entering upon the question whether there
was a vacancy in the office of lieutenant-governor which Mr. Robertson
was duly elected to fill, the recognition of Mr. Smith by a majority of
the senate as its lawful presiding officer, and the recognition of the
senate as a lawfully organized body by the other house as well as by
all its own members who remained and took part in its legislative
proceedings, and by the executive department, require us to consider it
as the lawful senate, lawfully organized so far as to be entitled to
take part in the joint convention which elected a Senator of the United
States.
We also think that the judgment of the senate of Indiana as to the
title of Messrs. Branahan and McDonald, the two members in question, to
their seats is binding upon the Senate of the United States. This body
is made by the Constitution the judge of the elections, qualifications,
and returns of its members. The senate of Indiana is likewise the judge
of the election, qualifications, and returns of its own members. We
must determine all questions arising out of the proceeding of the
electors. But who sustain the character of electors is to be determined
by the legislative body of the State. We can not inquire into the
motive which controlled its judgment. In rendering that judgment,
whether it shall give a hearing to parties, permit debate, examine
witnesses, act upon evidence or without evidence, are matters within
its own discretion. If that discretion were exercised in the manner
charged by the remonstrants, a majority of the committee think that a
great public crime was committed, for which the offenders are
responsible to the people of Indiana. But we can not try the question.
A majority of the committee do not mean to be understood as now
committing ourselves to an opinion upon the question whether the Senate
can not refuse to admit to a seat a claimant who owes his election to a
legislative body which is itself the result of fraud or crime, which
has overcome the true will of the people, even if it have possessed
itself of legislative authority, and of the technical evidence of a
rightful character, or whether the judgments of such a body as to the
title to seats of its individual members are entitled to any respect
whatever. If that question shall hereafter unhappily arise it will be
dealt with on its own merits. The committee ask to be discharged from
the further consideration of the several memorials.
On May 15 \1\ the question of discharging the committee was debated.
Mr. William E. Chandler, of New Hampshire, took exception to the latter
portion of the report, which held that the judgment of the senate of
Indiana was binding on the Senate of the United States on the question
at issue. It seemed to him that the power of unseating Members might be
carried to such an extent in a legislative body that the Senate of the
United States would be justified in reviewing the decisions of the
legislature. Mr. Hoar and others sustained the position of the report.
The motion to discharge the committee was agreed to without
division.\2\
552. The Senate election case of La Fayette Grover, of Oregon, in the
Forty-fifth Congress.
The credentials of a Senator-elect being regular and unimpeached, and
the election having been by the one legally organized legislature,
-----------------------------------------------------------------------
\1\ Record, pp. 4145-4147.
\2\ In 1891 the Senate considered the case of Wilkinson Call, of
Florida. December 7, 1891, R. H. M. Davidson presented the credentials
from the governor of Florida and at the same time a transcript of the
proceedings of the two houses of the legislature of Florida in a joint
convention, composed of a majority of the members of the two houses,
but not of a majority of the members of each, recording what purported
to be the election of Wilkinson Call. Mr. Call presented himself on the
same day, claiming the right to take the oath by virtue of the
proceedings of that joint convention. The facts set forth in the
transcript were undisputed. The matter went over under objection to the
next day, when Mr. Call was admitted to take the oath, on motion by Mr.
Hoar, and the credentials were referred to the Committee on Privileges
and Elections. (Election Cases, Senate Doc. No. 11, special session
Fifty-eighth Congress, p. 805.)
Sec. 552
the Senate seated the bearer at once, although charges were filed
against him personally.
Discussion of the elements of a prima facie case as made out by the
credentials of a Member-elect.
On March 2, 1877,\1\ in the Senate, the credentials of La Fayette
Grover, elected a Senator by the legislature of Oregon for the term
commencing March 4, 1877, were presented.
On March 7, 1877,\2\ Mr. Grover presented himself to be sworn, when
Mr. Hannibal Hamlin, of Maine, stated that Mr. John H. Mitchell,
Senator from Oregon, had certain papers relating to Mr. Grover's title
to the seat, and suggested that the oath be deferred until Mr. Mitchell
should be present.
Later in the day Mr. Mitchell presented the following memorial:
To the Senate of the United States:
Whereas it is currently reported and generally believed that L. F.
Grover, by bribery, the corrupt use of money, and other unlawful and
dishonorable means, procured his election to the Senate of the United
States by the legislature of the State of Oregon at its last session;
and
Whereas the said L. F. Grover, in obedience to a corrupt scheme to
defraud the State of Oregon of its proper electoral vote, as the
governor thereof did unlawfully, dishonestly, corruptly, and by acts of
usurpation, declare elected to the office of Presidential elector for
the State of Oregon, on the 6th day of December, 1876, and did issue a
certificate of election to one E. A. Cronin, who had been defeated by
the people for said office by more than 1,000 majority; and
Whereas the said L. F. Grover did fraudulently undertake to sustain
his said act by falsely testifying as a witness concerning the same
before the Senate Committee on Privileges and Elections on or about the
6th day of January, 1877:
Now, therefore, we, the undersigned, citizens of the State of Oregon,
earnestly but respectfully ask that the said L. F. Grover be denied a
seat in the United States Senate as a Senator from the State of Oregon
until the foregoing charges are thoroughly investigated and disproved.
M. L. Wilmot and others.
On March 8,\3\ at the suggestion of Mr. Aaron A. Sargent, of
Pennsylvania, and after modification by Mr. Roscoe Conkling, of New
York, this resolution was presented by Mr. William A. Wallace, of
Pennsylvania:
Whereas, under the Constitution and the laws and the practice of the
Senate, La, Fayette Grover, claiming to be a Senator from the State of
Oregon--his credentials being regular and in due form and there being
no contestant for the seat--and there being in said State but one body
claiming to be the legislature, and but one person claiming to be the
governor, and there being no doubt or dispute as to the existence of
one legal, rightful State government, is entitled to admission to a
seat in this body, on the prima facie case presented by such
credentials, notwithstanding the objections contained in the petition
of citizens of the State of Oregon against his admission: Therefore,
Resolved, That the credentials of La Fayette Grover be taken from the
table and the oaths of office be now administered to him.
Resolved further, That the petition of citizens of Oregon containing
charges against La, Fayette Grover lie on the table until the Committee
on Privileges and Elections is organized, when they shall be referred
to such committee, together with his credentials, with instructions to
investigate such charges and report to the Senate as to their truth or
falsity.
Mr. Conkling had suggested the words ``and there being in the said
State but one body claiming to be the legislature, and but one person
claiming to be governor.''
-----------------------------------------------------------------------
\1\ Second session Forty-fourth Congress, Record, p. 2069.
\2\ Special session of Senate, Forty-fifth Congress, Record, pp. 17,
22.
\3\ Record, pp. 31-39.
Sec. 553
In the debate Mr. Conkling went on to show that the condition set
forth in these words constituted an essential element of a prima facie
case. Mr. Oliver P. Morton, of Indiana, did not concur in the idea that
these words should be followed to their ultimate significance. ``A
prima facie case, as I understand it,'' he said, ``is one which is
regular upon its face--good upon its face according to the law of the
State from which it emanates. The idea that the existence of a
pretended legislature can invalidate the effect and value of a prima
facie case seems to me to be a contradiction in terms. If a Senator of
the United States or a person elected to the Senate comes here with the
certificate of the governor and the proper credentials according to the
forms of law, his prima facie case is not invalidated if some other
person presents a certificate which is not signed or executed according
to the forms of law.''
The question being taken on the preamble and the first resolution,
they were agreed to without division.
The second resolution was withdrawn, on the assurance that at a later
day, Mr. Grover proposed to demand an investigation.
553. The election case of James H. McLean, from Missouri, in the
Forty-seventh Congress.
The State authority having declined to issue credentials to a person
whose election was not disputed, the House administered the oath to him
on satisfying itself of his election.
Where the fact of election was not disputed the House seated a
Member-elect without reference to the Elections Committee, although the
State authority had denied him credentials.
On December 15, 1882,\1\ Mr. Thomas B. Reed, of Maine, claiming the
floor for a question of privilege, presented the memorial of James H.
McLean, which set forth that a vacancy was caused in the Second
Congressional district of Missouri by the death of Thomas Allen on
April 7, 1882; that on November 7, 1882, at an election duly called by
the governor of the State, for the said Second district, there were
cast 8,264 votes for the memorialist, 8,087 for James D. Broadhead, and
362 for B. A. Hill, the said memorialist thereby receiving the highest
number of votes ; \2\ ``that the abstracts of the votes so cast and
duly certified were forwarded to the secretary of state of Missouri,
where the same are required by law to be sent, but that the secretary
of state of said State has failed and utterly refuses to give your
memorialist a certificate of his election as aforesaid.'' With the
memorial were presented two certificates from the county clerk and
recorder, giving the abstract of the votes cast.
It appeared from the remarks of Mr. Reed and from uncontradicted
statements of Representatives from Missouri that there was no doubt as
to the correctness of these returns; and that Mr. Broadhead, the rival
candidate, did not contest the fact that Mr. McLean was elected.
It appeared that under the law of Missouri it was the duty of the
secretary of state to issue the credentials, but that he had declined
to do so, apparently for the
-----------------------------------------------------------------------
\1\ Second session Forty-seventh Congress, Record, pp. 328-331.
\2\ The highest number of votes was required for election in
Missouri, although the memorial did not so specify.
Sec. 554
reason that the State had been redistricted after the election of
Thomas Allen and before the special election called to fill the vacancy
caused by his death; but nothing before the House indicated whether the
governor had called the special election in the old or the new
district. For this reason especially Mr. Richard D. Bland, of Missouri,
urged that the memorial should be referred to the committee on
credentials for examination, but Mr. Reed pointed out that the only
reason why Mr. McLean was not sworn in without dissent was because the
secretary of state had declined to do his duty, since no one, not even
his opponent, doubted his right to the seat. There was not time for Mr.
McLean to compel the secretary of state by mandamus to issue the
certificate, and in justice to Mr. McLean and the constituency who
elected him he should be given the seat at once.
The House voted--ayes 144, noes 15--that Mr. McLean should be
permitted to take the oath, and he appeared and qualified.
554. The Pennsylvania election case of Morris v. Richards in the
Fourth Congress.
The governor having declined to issue credentials because of doubt as
to the election, the House, in 1796, determined the final right before
seating the one surviving claimant.
An election return, required by law to be made on or before a certain
day, should be counted if presented after that day, provided it be
otherwise correct.
A vote not returned within the time required by law, and of which the
returns were not in the required form, was rejected.
A return seasonably made and in legal form, but giving certain proxy
votes and votes of persons disqualified, was purged and not rejected.
On January 18, 1796,\1\ the House decided that John Richards, of
Pennsylvania, was entitled to a seat in the House.
This was a case in which the governor of Pennsylvania, after the
election, had issued no certificate because he was in doubt whether
James Morris or John Richards was elected. Mr. Morris died before the
meeting of Congress. After Congress assembled Mr. Richards petitioned
for the seat.
The committee found that, by the law of Pennsylvania, the county
judges of election were required to meet on November 10, and that the
district judges should meet on November 15, to examine the county
returns and certify the result. Certain of the voters were away on the
western expedition, so it was provided that army returns should be sent
to the prothonotaries of the respective counties by the said 10th of
November, and that on that day the prothonotaries should deliver them
over to the county judges. The return of the Montgomery County soldiers
was received by the prothonotary after the 10th and before the 15th,
and by him delivered over to some of the county judges, two of whom
made up a return and certified it on the 14th. This return was laid
before the judges of the district on the 15th, but was not counted by
them. The Committee on Elections reported, however, that the district
judges should have counted this return, in spite of the
-----------------------------------------------------------------------
\1\ First session Fourth Congress, Contested Elections in Congress
from 1789 to 1834, p. 95; Rowell's Digest, p. 45.
Sec. 555
informality.\1\ It also appeared that the vote of the Bucks County
soldiers, not being returned before the 15th of November and not being
canvassed by the district judges, was filed with the secretary of state
on January 18, 1795. These returns were also defective on their face,
being unaccompanied by a list of names of those voting. So the
Committee on Elections reported that this return should not be counted.
It further appeared that the return of the Northampton soldiers, which
alone was properly received before the required date, November 10,
contained 2 proxy votes and 16 votes of persons evidently not qualified
to vote. These 16 votes were for James Morris.
The Committee on Elections, therefore, by counting the Montgomery
return, rejecting the Bucks return and the 18 unauthorized votes in
Northampton, found that John Richards was duly elected.
The House, in accordance with this finding, seated Mr. Richards.
555. The Pennsylvania election case of John Sergeant in the
Nineteenth Congress.
Two candidates having equal numbers of votes, the governor did not
issue credentials to either, but ordered a new election after they had
waived their respective claims.
Candidates at an inconclusive election having waived their claims,
the House held that the result of a new election might not be disturbed
because of alleged errors in the first election.
Instance of an election case instituted by sundry citizens.
On January 14, 1828,\2\ the Committee on Elections reported in the
case of sundry citizens v. Sergeant, of Pennsylvania,
At the election of October 10, 1826, John Sergeant and Henry Horn had
an equal number of votes. It appearing that the people had failed to
make a choice, the executive seems to have considered the case in the
light of a vacancy, but not to an extent sufficient to warrant him in
directing another election until both Mr. Sergeant and Mr. Horn
informed him in writing that they relinquished all claims to the seat
in virtue of the election of 1826. In consequence of this letter the
governor ordered an election to supply the vacancy, to be held on
October 9, 1827.
At that election it appeared that John Sergeant was duly elected.
But the memorialists alleged that the rectification of an error which
they pointed out in the count of the election of 1826--the first
election--would show the election of Henry Horn.
Certain letters and ex parte depositions were submitted to the
committee and decided insufficient to invalidate the rights of the
sitting Member. The committee asserted that they thought it quite
unnecessary to go into an investigation of the rights of the parties
under the first election, because, whatever those rights were, they had
been voluntarily relinquished. Therefore the committee reported the
following resolution, which was agreed to without debate or division:
Resolved, That John Sergeant is entitled to a seat in this House.
-----------------------------------------------------------------------
\1\ In a first report, which was recommitted, it was held that these
returns should be rejected.
\2\ First session Nineteenth Congress, Contested Elections in
Congress from 1789 to 1834, p. 516; Rowell's Digest, p. 85.
Sec. 556
556. The Pennsylvania election cases of Koontz v. Coffroth and Fuller
v. Dawson in the Thirty-ninth Congress.
Conflicting returns rendering it impossible for a governor to issue
any credentials, the Clerk enrolled neither claimant to the seat.
Neither claimant to a seat having credentials, the House referred the
papers with instructions that the prima facie right be determined,
without prejudice to a later contest on the merits.
In determining prima facie right the majority of the Elections
Committee, in a sustained report, declined to consider papers other
than those coming legally from the proper certifying officers of the
district.
The House, acting on a divided report, determined the prima facie
right by the returns of the district certifying officers, although they
were impeached by accompanying papers.
Form of resolutions for seating a claimant on prima facie showing and
for the institution of a contest on the merits.
On December 5, 1865,\1\ the House agreed to the following resolution:
Resolved, That the certificates and all other papers relating to the
election in the Sixteenth Congressional district of Pennsylvania be
referred to the Committee of Elections, when appointed, with
instructions to report, at as early a day as practicable, which of the
rival claimants to the vacant seat from that district has the prima
facie right thereto, reserving to the other party the privilege of
contesting the case upon the merits, without prejudice from lapse of
time or want of notice.
On January 26, 1866,\2\ the Committee of Elections reported. In this
case the names of neither Mr. Coffroth nor Mr. Koontz, the rival
claimants for the seat, had been put on the Clerk's roll, for the
reason that the governor of Pennsylvania, in his proclamation of the
names of the persons elected in the various Congressional districts,
had declared--
that no such returns of the election in the Sixteenth Congressional
district have been sent to the secretary of the Commonwealth as would,
under the act of assembly of July 2, A.D. 1839, authorize me to
proclaim the name of any person as having been returned as duly elected
a Member of the House of Representatives of the United States for that
district.
The act of July 2, 1839, provided the following method for returning
the results of an election in a Congressional district, as stated by
the report:
When two or more counties compose a district for the choice of a
Member of the House of Representatives of the United States, it is
provided, after an election has been held, that the judges of election
in each county having met, the clerks shall make out a fair statement
of all the votes which shall have been given at such election, within
the county, for every person voted for as such Member, which shall be
signed by said judges and attested by the clerks; and one of the said
judges is to take charge of said certificates of votes, and produce the
same at a meeting of one judge from each county, at such place in such
district as is, or may be, provided by law for that purpose. The judges
of the several counties (composing such district) having met as
aforesaid, are then required to cast up the several county returns and
make duplicate returns of all the votes given for such office of
Representative in Congress in said district, and of the name of the
person elected, and to deposit one of said returns for said office of
Representative in the office of the prothonotary of the court of common
pleas of the county in which they shall meet, and to place the other
return in the nearest post-office, sealed and directed to the secretary
of the Commonwealth.
-----------------------------------------------------------------------
\1\ First session Thirty-ninth Congress, Journal, p. 32; Globe, p.
10.
\2\ 2 Bartlett, p. 25; House Report No. 12.
Sec. 556
The said return judges are also required to transmit to the person
elected to serve in Congress a certificate of his election, within five
days after the day of making said return.
On the receipt of the return of the election of Members of the House
of Representatives of the United States, as aforesaid, by the secretary
of the Commonwealth, the governor is required (section 113) to declare,
by proclamation, the names of the persons so returned as elected in the
respective districts, and also to transmit, as soon as conveniently may
be thereafter, the returns so made to the House of Representatives of
the United States.
There were five counties in the district--Adams, Bedford, Franklin,
Fulton, and Somerset.
In each of the three last counties all of the precinct judges united
in certifying the results, and there was no question as to them. But in
Franklin County there was a difficulty as to the selection of the judge
who should present the return of the county at the meeting of the
district board. Mr. Wilhelm was at first chosen, but later this action
was rescinded and Mr. Laker was chosen, and appears to have become the
actual possessor of the return.
In Adams and Bedford counties there was a difficulty about the
counting of the soldiers' votes, and the return from each of these
counties was certified by a majority only of the precinct judges. In
each of these counties the minority judges made another return.
The next complication occurred when the board of district judges
(composed of one judge from each county, bearing the return of his
county) met to make up the district return. In fact two boards met--a
Coffroth and a Koontz board.
The Koontz board appears to have been composed of the two
representatives of the minority judges in Adams and Bedford counties;
of Mr. Wilhelm, the superseded representative of Franklin County; of
Mr. Winter, the regular representative of Fulton County, who later
attended the Coffroth board; and Mr. Willis, the lawful bearer of the
undisputed return of Somerset County, who did not attend the Coffroth
board at all. This Koontz board made the return in the form required of
the district board, and the return was transmitted to the State
authorities in regular order. This return showed a majority of 32 votes
for Mr. Koontz.
The Coffroth board, which assembled later in the day, was composed of
the two majority judges of the counties of Adams and Bedford, of Mr.
Laker, the last-chosen representative judge of Franklin County, and of
Mr. Winter, the regular representative of Fulton County. This board
made out in regular form a district return, and transmitted it to the
State authorities in the regular way. This return showed a large
majority in favor of Mr. Caffroth, but also showed on its face that the
return of the county of Somerset was not included.
In point of fact, although it did not officially appear on this
district return, the vote of Somerset County, which was undisputed,
would have reduced but not overcome the majority showed for Mr.
Coffroth by the other four counties. Mr. Coffroth's majority on this
basis was 93 for the whole district.
The attorney-general of Pennsylvania, in an opinion given to the
governor, maintained that the action of a majority of the return judges
of a county was to be presumed to be valid; but also held that the
district judges should have by adjoinment endeavored to procure the
complete return, including the county of Somerset.
The Committee on Elections, acting under direction of the House,
examined the question as to where they should look for the prima facie
title to the seat, and in
Sec. 556
their conclusions the committee divided, a bare majority concurring in
the report. The majority say:
The return certified by the majority certainly embraces the counties
of Adams, Bedford, Franklin, and Fulton, and is an official certificate
of all the returns presented, and of the aggregate returns of votes
from these counties; and as the vote of Somerset County is undisputed
and would not have changed the result, we see no occasion or
justification, on a prima facie hearing, for going beyond the action of
these return judges who met on the day and at the place fixed by law,
and did all that the law required them to do.
If, however, we should waive this position and go beyond, not behind,
the action of the district return judges, it would only be to ascertain
the vote of Somerset County; and that being obtained and added to the
other certified returns, as we have seen, still gives Mr. Coffroth the
certified majority of all the votes cast in the district and the prima
facie right to the seat.
Clearly the district board of return judges had no right to go behind
the certified returns brought by each return judge from his county, and
in determining a prima facie right to a seat the same rule would seem
applicable to and binding upon the Committee on Elections and the
House. But suppose we should see fit, in violation of this rule, to go
behind the action of the district return judges, we come then next to
the certified returns of the several boards of county return judges of
each county in the district, which returns were not separately before
the governor. In three of these, viz, Franklin, Somerset, and Fulton,
all of the return judges unite in certifying the result, and the
claimants each admitted before the committee, that on this hearing of a
claim to the prima facie right to the seat, neither of them could go
behind any one of these three returns thus certified.
The home vote of Bedford County is also certified by all of the
return judges, and is undisputed by the claimant, but the soldiers'
vote of Bedford County is certified by a majority of the return judges,
as 318 for Koontz, and 94 for Coffroth, while the minority of the
return judges sign another return, which, of course, is of no validity.
A majority of the return judges of Adams County certify to the
returns of votes cast in that county, including the soldiers' vote,
giving Coffroth 2,707 votes, and Koontz 2,366.
The minority sign another return, purporting to include the home vote
and the soldiers' vote, but nothing appears on the face of the majority
return, from either Adams or Bedford County, to show but what they
constitute the whole board of return judges present for each of said
counties.
The majority of the committee also say:
But it is claimed, on the part of Mr. Koontz, not only that the act
of the majority of the county return judges in certifying these returns
from Adams and Bedford is void, but that the Committee on Elections and
the House, in this investigation of the prima facie right to the seat,
may not only go behind these returns from Adams and Bedford, but also,
in effect, behind the unanimous returns of all the other counties of
Franklin, Fulton, and Somerset, so far as the soldiers' vote is
concerned. The statement of such a proposition on an investigation of
this kind would seem to be sufficient for its own refutation. It would
be attempting to hear the case on the merits, without giving the
claimants the opportunity of presenting their evidence in full; would
be utterly disregarding all credentials, and would obliterate all
distinction between a prima facie right on the certificates and papers
from the proper certifying officers and a claim founded on the merits
on a full hearing of all the evidence that might be adduced by either
claimant in support of his claim. (See case of Jayne v. Todd, vol. 1,
p. 1, Reports of Committees, first session Thirty-eighth Congress.)
It should be borne in mind that by the resolution of the House
referring this case to the committee, the committee are restricted in
their first examination and report to the prima facie right of either
claimant to the seat; and the committee are to determine this from the
certificates and papers referred to them, including always the
admission of the claimants themselves before the committee; but only
those papers are to be considered which come from the proper certifying
officers, and which those officers are authorized by law to make, and
also which are pertinent to the case.
Many papers have been referred to the committee which, on this
hearing, are not evidence for any purpose.
From the legal certificates and returns of the district and county
boards of return judges in this case, nothing appears in relation to
the rejection of any soldiers' votes; and those who allege such
rejection are
Sec. 557
compelled to look outside of these certificates and returns and resort
to papers and statements which are not legitimate evidence on this
investigation and which, without further proof, would few, if any of
them, be evidence of themselves on the hearing of a contest on the
merits.
The committee therefore recommended the following resolution:
Resolved, That Alexander H. Coffroth, upon the certificates and
papers relating to the election in the Sixteenth Congressional district
of the State of Pennsylvania, has the prima facie right to the vacant
seat from that district and is entitled to take the oath of office and
occupy a seat in this House as the Representative in Congress from said
district, without prejudice to the right of William H. Koontz, claiming
to have been duly elected thereto, to contest his right to said seat
upon the merits.
Resolved, That William H. Koontz, desiring to contest the right of
Hon. Alexander H. Coffroth to a seat in this House as a Representative
from the Sixteenth district of the State of Pennsylvania, be, and he
is, required to serve upon the said Coffroth, within fifteen days after
the passage of this resolution, a particular statement of the grounds
of said contest, and that the said Coffroth be, and he is hereby,
required to serve upon the said Koontz his answer thereto within
fifteen days thereafter, and that both parties be allowed sixty days
next after the service of said answer to take testimony in support of
their several allegations and denials, notice of intention to examine
witnesses to be given to the opposite party at least five days before
their examination, but neither party to give notice of taking testimony
within less than five days between the close of taking it at one place
and its commencement at another, but in all other respects in the
manner prescribed in the act of February 19, 1851.
The minority of the committee took the view that neither claimant had
showed a prima facie case. The proclamation of the governor of
Pennsylvania, which would have been the best evidence, showed that no
such returns had been received as would authorize him to proclaim
anyone elected. The return of the board of district judges transmitted
by the governor would establish such a prima facie right if
unimpeached.
But neither by a return of the district board to the secretary of the
commonwealth, nor by a certificate of that board to either of the
claimants, has such prima facie right been shown in this case before
the committee.
The minority rather considered that the House intended the committee
to determine from all the papers submitted the title to the seat.
Therefore they examined into the validity of the returns of soldiers'
votes and came to a conclusion favorable to Mr. Koontz.
On February 16 and 19 \1\ the report was debated at length, after
which the question was taken on the motion of the minority to
substitute resolutions declaring Mr. Koontz entitled prima facie to the
seat. This motion was disagreed to--yeas 58, nays 83.
The resolutions as reported from the committee were then agreed to,
and Mr. Coffroth was sworn in.
557. The cases of Koontz v. Coffroth and Fuller v. Davidson,
continued.
The name of a witness who swore to his own vote not being mentioned
in the notice to take depositions as required by law, the vote was
rejected.
A precinct return, defective because the certificate of oaths of
election officers was wanting, but supplemented by a paper containing
the required certificate, was accepted by the House, the State law
forbidding rejection for mere informalities.
-----------------------------------------------------------------------
\1\ Journal, pp. 282, 297, 298; Globe, pp. 887, 923-930.
Sec. 557
Two companies of soldiers having voted together where the law
required a separate poll for each, the vote was counted on testimony
showing honesty and fairness in the proceedings, the law forbidding
rejection for mere informalities.
Returns of soldiers' votes made to the county of their residence were
not rejected by the House because a vote from another county was
included, but that vote was rejected.
On July 9, 1866,\1\ the Committee on Elections reported on the
question of the final right, finding that Mr. Coffroth had not been
elected and that Mr. Koontz was entitled to the seat.
The contestant alleged that the official count omitted in the
counties of Bedford, Fulton, and Adams the votes of certain soldiers,
258 of which were cast for Mr. Koontz and 99 for Mr. Coffroth. He
further alleged that certain votes of paupers had been unlawfully cast
for sitting Member.
The sitting Member, besides opposing the allegations of contestant,
alleged that certain votes counted for contestant in the official
returns were illegal.
In the examination of contestant's claims questions of fact as to the
casting and counting of soldiers' votes were largely dealt with.
Certain principles were laid down by the committee, however, in
determining the result.
The contestant claimed one vote at the Cuyler Hospital, in
Philadelphia. The committee decided not to count this vote in the table
of votes claimed by contestant for the following reason:
The committee need not examine this return, notwithstanding all
informality is cured by the testimony of the voter who swears he voted
for Mr. Koontz. But the name of the witness is not mentioned in the
notice to take depositions, as required by the law regulating contests
in elections cases, and of this the sitting Member claims the benefit.
We therefore deduct one, which is estimated for Mr. Koontz in the above
table.
The return of the McClellan Hospital, in Philadelphia, was claimed by
the sitting Member to be fatally defective, but the committee held:
It is the duty of the committee to approach as nearly as possible the
ballot box, and, by an examination of all the testimony, see that no
legal voter is deprived of his just right to the elective franchise.
We find in the evidence referred to the committee by the House two
properly certified papers, one, if taken by itself, defective, because
the certificates of oaths are wanting, * * * but, nevertheless evidence
of what it contains, to wit, the poll book and tally paper, with
signatures of the judges and clerks; the other, which is not in
conflict with the first, poll book, certificate of oath of officers,
and names and number of electors, signed by same judges and clerks.
This makes the testimony complete. The last-mentioned poll book, etc.,
of itself, though informal, is substantially in compliance with the
law. This committee and the House are not circumscribed by the
formalities that regulate proceedings of a board of return judges. They
can go to the ballot box if necessary. In this instance, by looking at
the two returns, no doubt remains of the fact that Mr. Koontz received
three votes, which should be counted.
At Front Royal, Va., two companies of the One hundred and thirty-
eighth Pennsylvania Regiment voted together, although the law directed
that a poll should be opened in each company. While this was sufficient
to exclude the return as a prima facie case, yet in a case on the
merits the majority of the committee concluded that, as the testimony
showed the voting to have been conducted honestly,
-----------------------------------------------------------------------
\1\ First session Thirty-ninth Congress, Report No. 92; 2 Bartlett,
p. 138; Rowell's Digest, p. 207.
Sec. 558
and with perfect fairness, the votes should be counted. The report also
notes the fact that this decision did not affect the result.
As to the One hundred and eighty-fourth Regiment, the return of which
came to Adams County, the sitting Member objected that it contained a
voter of Franklin County. The committee say:
In his argument he objected to the return because it contained a
voter in Franklin County.
That objection can not deprive the qualified voters of Adam County of
their right, when a perfect return, as this is, is properly certified
by the prothonotary.
But the certificate of prothonotary of Adam County is not evidence to
us of vote in Franklin County. In the absence of other testimony we
reject one vote from this return for Mr. Koontz, and count for Mr.
Koontz 38, for Mr. Coffroth 21.
558. The cases of Koontz v. Coffroth and Fuller v. Davidson,
continued.
Instance wherein a claimant seated after examination of prima facie
title was unseated after examination of final right.
Election judges and clerks sworn by one having no legal right to
administer the oath were regarded by the House as de facto officers and
the returns were counted, the State law forbidding rejection for mere
informalities.
The State law being silent as to the right of paupers to vote, the
House has counted the votes of such persons.
Oral testimony impeaching a return already counted by return judges
was held not sufficient to cause rejection of the vote, the actual
return not being identified and offered.
As to the Twenty-first Pennsylvania Cavalry at City Point, Va., the
committee say:
The judges and clerks were sworn by Capt. James Mickley, who was a
qualified voter, but not a judge or clerk of the election who are
authorized by the law to administer such oath.
The sitting Member claims this return should be deducted, because
Captain Mickley was not an election officer. The soldiers' law, section
fifth, says ``the oath maybe administered by judges or clerks.'' Others
may administer. But Captain Mickley not being a public officer, had no
legal right to administer the oath. But the judges and clerks became,
by taking the oath in good faith, public officers de facto, for the
purpose of conducting the election, and their acts are valid. This
principle is laid down in second Kent, page 339: ``In the case of
public officers who are such de facto, acting under color of office, by
an election or appointment not strictly legal, or without having
qualified themselves by the requisite tests, or by holding over after
the period prescribed for a new appointment, their acts are held valid
as respects the rights of third persons who have an interest in them,
and as concerns the public, in order to prevent a failure of justice.''
The decision in the Thirty-sixth Congress (see Bartlett's Election
Cases, p. 313), in the case of Blair v. Barret, is also in point. We
find the following language in the report, of the majority, which was
sustained: ``There was no evidence (referring to certain precincts)
``returned with the return of votes, now before the committee, in any
shape at the hearing that the judges of election were sworn. Had it
appeared from the evidence that the election had been fairly conducted
at these precincts, and there were no traces of fraud, no taint of the
ballot box, the committee would not have been willing to have
recommended a rejection of these polls. The honest electors should not
be disfranchised and their voice stifled from a mere omission of the
officers of election to take the oath of office.'' In the case before
us there was not an omission, as we have seen. The evidence is, that
``the election was conducted very strictly and fairly; inquiry was made
as to age and payment of taxes. Those whom we were not positively
certain were of age were sworn. The voters presented certificates
showing the payment of tax within two years,'' etc.
We are therefore clearly of the opinion that this poll should be
counted.
559
The committee finally concluded that Mr. Koontz had a majority of 40
votes.
The House, on July 18,\1\ without division, seated Mr. Koontz, the
contestant.
The committee make, as a part of their report, a compilation of the
Pennsylvania election laws, among which was the following section
relating to the voting of soldiers:
No mere informality in the manner of carrying out or executing any of
the provisions of this act shall invalidate any election held under the
same, or authorize the return thereof to be rejected or set aside; nor
shall any failure on the part of the commissioners to reach or visit
any regiment or company, or part of company, or the failure of any
company or part of company to vote, invalidate any election which may
be held under this act.
The contestant also claimed that the votes of 16 paupers should be
deducted from the poll of the sitting Member in Adams County. The
committee say:
The committee can not see why the 16 in Adams County should be
deducted from the count of the sitting Member. Each State frames its
own laws for the maintenance and care of its poor. The laws provide
protectors for the poor, who, ``by reason of age, disease, infirmity,
or other disability,'' become unable to work. With regard to the
exercise of the elective franchise by such, the laws of Pennsylvania
are silent. As they are not expressly deprived of the right, we can not
see why the unfortunate, provided for by the public, may not vote as
well as if provided for by a parent or a son--certainly not until the
authorities of Pennsylvania shall have decided for themselves the law,
for which they have had frequent opportunities; therefore we here make
no deductions.
The sitting Member claimed the deduction of certain votes on the
ground that soldiers' returns improperly made up had been improperly
counted in the original official count. This was attempted to be proven
by testimony of clerks of county return boards, who testified that
certain returns were counted by the return judges, but the actual
returns so counted were not identified and made part of the record in
the case.\2\
559. The Pennsylvania election case of Covode v. Foster in the Forty
first Congress.
The governor having declined to issue credentials because of
unsatisfactory returns, the Clerk declined to enroll either claimant,
although the governor officially expressed an opinion that a certain
one was elected.
In a case where there were no credentials the House, in examining as
to prima facie right, declined to permit the election returns to be
considered by the committee.
The law requiring a formal proclamation of the governor, the House
declined to give prima facie effect to an informal executive
communication, especially as the House had the returns.
-----------------------------------------------------------------------
\1\ Journal, p. 1039.
\2\ On June 21, 1866, the Committee on Elections reported on the case
of Fuller v. Dawson, from Pennsylvania--a case involving instances of
informalities in returns of soldiers' votes under the terms of the
Pennsylvania law. The majority of the committee and a large majority of
the House sustained the sitting Member, whose majority depended on
rather a strict requirement as to records of oaths of election officers
and accuracy and regularity of returns, etc. In the debate, which
occurred on July 11 and 12, it was urged that the provisions of the
Pennsylvania law waiving strict requirements had not been given full
effect; but the House sustained the committee and the sitting Member.
(First session Thirty-ninth Congress, Journal, p. 1014; Globe, pp.
3747, 3771, 3802; House Report No. 83; 2 Bartlett, p. 126; Rowell's
Digest, p. 207.)
Sec. 559
Form of resolution instituting a contest in a case wherein neither
claimant is seated on prima facie showing.
Certain papers being sent to a committee as the basis of a decision
and report, the committee does not take into account other pertinent
papers in possession of the House.
On March 4, 1869,\1\ at the time of the organization of the House,
when the Clerk's roll of Members-elect was called, it appeared that no
name had been entered for the Twenty-first district of Pennsylvania. A
proposition to amend the roll in this particular was superseded by a
motion to proceed to the election of Speaker.
On the next day, March5,\2\ after the election of Speaker, the
subject came up in the House again. It appeared that there were before
the Clerk and also in possession of the House:
(a) The general proclamation of the governor of Pennsylvania, dated
November 17 1868, declaring who were elected to Congress from the
several districts of that State, but stating, in regard to the Twenty-
first district:
That no such returns of the elections have been received by the
secretary of the commonwealth as would, under the election laws of the
State, authorize me to proclaim the name of any person as having been
returned duly elected a Member of the House of Representatives of the
United States for that district.
(b) The following letter from the governor to the Clerk of the House,
dated some months later than the proclamation:
Pennsylvania Executive Chamber,
Harrisburg, Pa., February 28, 1869.
Sir: I have the honor to transmit herewith additional affidavits and
evidences of fraud submitted to me in regard to the election of Member
of Congress in the Twenty-first Congressional district of this State.
These affidavits were taken before officers properly authorized to
administer oaths, and indicate the election of Hon. John Covode.
Most respectfully, your obedient servant,
Jno.W. Geary,
Governor of Pennsylvania.
Hon. Edward McPherson,
Clerk House of Representatives, Washington, D. C.
State of Pennsylvania,
Office of the Secretary of the Commonwealth,
Harrisburg, Pa., February 23, 1869.
I hereby certify that the signature of John W. Geary, governor of
this Commonwealth, to the attached letter, is his genuine signature;
and that the accompanying affidavits and papers are the originals filed
in this office from time to time since the election held on the 13th of
October last.
In testimony whereof I have hereunto set my hand and caused the seal
of the secretary's office to be affixed the day and year above written.
[SEAL.]
F. Jordan,
Secretary of the Commonwealth.
(c) The affidavits reciting the alleged frauds which had determined
the mind of the governor as to the right to the seat.\3\
-----------------------------------------------------------------------
\1\ First session Forty-first Congress, Globe, p. 3.
\2\ Journal, pp. 13, 14; Globe, pp. 13-16.
\3\ For these affidavits, see Globe, p. 452.
Sec. 559
(d) The official returns, both of the district returning board and
from the three county boards. One of the three district judges, after
participating in the proceedings, had refused to sign the district
returns, which was signed by two judges only. These two judges had
appended a certificate of the refusal of the third judge to sign.
The Clerk had declined to put the name of either claimant on the roll
on the strength of these papers.
The case being taken up in the House, Mr. George W. Woodward, of
Pennsylvania, proposed a resolution that ``the returns of the
election'' be referred to the Committee on Elections with instructions
to report which claimant had the prima facie right to the seat. Mr.
Glenni W. Schofield proposed a resolution seating one claimant, Mr.
Covode, on the strength of the documents furnished by the governor.
Both of these propositions were finally put aside in order to adopt
the following substitute proposed by Mr. Henry L. Dawes, of
Massachusetts:
Resolved, That so much of the proclamation of the governor of
Pennsylvania, dated November 17, 1868, as relates to the election of
Representative in the Twenty-first district of that State, and the
letter of said governor, dated February 23, 1869, relative thereto,
together with all the papers referred to in said letter, be referred to
the Committee of Elections, when appointed, with instructions to report
to the House what person, according to said proclamation, letter and
papers, is entitled prima facie to represent said Twenty-first district
in the Forty-first Congress pending any contest that may arise
concerning the right to such representation.
It is to be noticed that the returns were not included among the
papers referred to the committee; and on March 18\1\ Mr. Woodward
proposed a resolution as follows:
That the certified returns of the return judges of the said Twenty-
first district, and all the papers connected therewith now in the hands
of the Clerk of the House, be referred to the Committee on Elections
with the same effect as if they had been included in the resolution of
the 5th instant.
After debate, in which there seemed to exist some confusion as to the
real nature of the documents required of the governor to constitute a
prima facie case, the House laid Mr. Woodward's resolution on the
table.
On March 26 \2\ the committee reported, the report of the majority
being presented by Mr. John Cessna, of Pennsylvania. After quoting the
proclamation of the governor and his later letter to the Clerk of the
House, the report says:
The signature of the governor to this document was duly certified by
the secretary of the Commonwealth, and the seal of the State attached.
It is claimed by Mr. Covode that this letter gives him a prima facie
right to the seat--it being a supplemental proclamation, as he alleges,
and intended to be the decision of the governor that he, Covode, was
elected in the Twenty-first district.
By the general election law of Pennsylvania (Purdon's Digest, eighth
edition, section 63) it is provided, where two or more counties compose
a district for the choice of a Member of the House of Representatives,
that after an election has been held, the judges of election in each
county having met, the clerks shall make out a fair statement of all
the votes which shall have been given at such election, within the
county, for every person voted for as such Member, which shall be
signed by said judges and attested by the clerks; and one of the said
judges is to take charge of said certificates of votes and produce the
same at a meeting of one judge from each county, at such place in such
district as is, or may be, provided by law for that purpose. The judges
of the several counties having met, are required
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\1\ Journal, p. 71; Globe, pp. 139-143.
\2\ Journal, p. 122; Globe, p. 309; House Report No. 2; 2 Bartlett,
p. 519; Rowell's Digest, p. 231.
Sec. 559
(see. 64) to cast up the several county returns and make duplicate
returns of all the votes given for such office of Representative in
Congress in said district, and of the name of the person elected, and
to deposit one of said returns for said office of Representative in the
office of the prothonotary of the court of common pleas of the county
in which they shall meet, and to place the other return in the nearest
post-office, sealed and directed to the secretary of the Commonwealth.
The said return judges are also required (sec. 65) to transmit to the
person elected to serve in Congress a certificate of his election
within five days after the day of making said return.
On the receipt of the return of the election of Members of the House
of Representatives of the United States, as aforesaid, by the secretary
of the Commonwealth, the governor is required (sec. 113) to declare by
proclamation the names of the persons so returned as elected in the
respective districts, and also to transmit as soon as may be
conveniently thereafter the returns so made to the House of
Representatives of the United States.
The committee go on to say that their investigations were confined
strictly to the papers referred to them by the committee. And they say
that they believe the governor had a right to decide as he did in the
letter to the Clerk, being justified in the precedents in the case of
Butler v. Lehman. The committee further say:
As there is no prescribed form in the law of Pennsylvania for the
proclamation, nor any time fixed at which it shall be issued, nor any
specified mode of publication required to be made, it is difficult to
see that anything is required by the proclamation named in the law more
than a decision as to who is duly elected in the respective districts
of the State, and notice of such decision given to the parties elected
and to the House of Representatives.
A majority believes that the committee has but little discretion in
the premises. The language of the resolution under which we are acting
requires us to report to the House what person is entitled, prima
facie, to represent the Twenty-first district of Pennsylvania in the
Forty-first Congress, according to the papers referred to us. It would
seem from this resolution of reference that the House was satisfied
that some one had a prima facie right to the seat on these papers, and
that the only inquiry for us was as to the person so entitled.
The committee is further sustained in this view from the fact that at
the time these papers were referred, an effort was made in the House to
refer other papers seeming to be connected with the case, and this
effort was unsuccessful. This effort was subsequently repeated with a
like result.
Therefore the committee, finding that the other claimant is nowhere
mentioned in the papers before the committee, except in an unfavorable
light, find Mr. Covode having the prima facie right.
Therefore the majority of the committee reported resolutions giving
the seat to Mr. Covode and providing that Mr. Foster, the other
claimant, might contest.
The majority of the committee\1\ concede that the proclamation of the
governor was legal evidence, but they do not admit the same as to the
letter to the Clerk:
This letter, being unauthorized by law, has no official character. It
is not the act of the governor, but the individual. It is no more legal
evidence than would be the unsworn statement of any other citizen of
Pennsylvania. Furthermore, it is not under the great seal of the State.
It is correctly characterized in the authenticating certificate of the
secretary of the Commonwealth, and in the resolution of the House, as a
``letter.'' It does not, like a solemn proclamation, begin, ``In the
name of the Commonwealth of Pennsylvania,'' and end with the words
``Given under my hand and the great seal of the State,'' but, like an
ordinary epistle, it begins with ``Sir,'' and ends with ``Most
respectfully, your obedient servant.'' It is true that it is subscribed
``Jno. W. Geary, governor of Pennsylvania.'' But a letter addressed by
the governor, as this is, to the Clerk of the House, recommending an
applicant for a position in his department, might have been, and
probably would have been, subscribed in the same way, and if so
subscribed, would have had the same official character which this
letter has. And an
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\1\ H. E. Paine, of Wisconsin; John C. Churchill, of New York; Albert
G. Burr, of Illinois, and Samuel J. Randall, of Pennsylvania, signed
minority views.
Sec. 559
authenticating certificate of the secretary of the Commonwealth would
contribute as much of official character to such a recommendation as
the secretary's certificate in this case does to the letter. Inasmuch
as this letter is not legal evidence, it is not material to inquire
whether, if it really were competent evidence, it would amount to prima
facie proof that either claimant is entitled to the seat.
But conceding, for the moment, the right of the governor to issue a
supplemental proclamation, is the document of date February 23 such an
instrument as is contemplated by the law of Pennsylvania? ``A
proclamation'' is an official notice to the public, a public
declaration made by competent authority. By Webster a proclamation is
defined as ``publication by authority, official notice given to the
public,'' ``the paper containing an official notice to a people.'' But
the document in question is a mere private communication sent by
Governor Geary to the Clerk of this House. It has none of the elements
of a proclamation, is not issued by competent authority, for it lacks
authority of law; and an unauthorized act by an official has no more
legal force than the same act by a private citizen. It is not addressed
or directed to the public, nor is it intended for their consideration.
It does not declare a result, but merely ventures an opinion, and that
only incidentally, for the object alone of the document was to transmit
papers, called ``affidavits and evidences of fraud,'' to the Clerk. The
Clerk himself does not consider it in any sense an official document,
else he surely would have acted upon it and placed on the rolls the
name of Hon. John Covode as the Member from the district in question.
Further, the paper under consideration has no ``great seal of the
Commonwealth,'' as has the proclamation of November 17; and if it be
said that the certificate of the secretary of the Commonwealth shows
this paper to have been issued by John W. Geary, as governor, it will
be seen that, by the same certificate, the secretary designates the
paper in question, not as a proclamation or official document, but as a
``letter'' only. So far as this is a private communication we have
nothing to do with it; but in so far as we are required to consider it
in deciding a prima facie right to the vacant seat, the preceding
comments are considered justifiable. In the view of the undersigned,
for the reason aforesaid, neither the letter of February 23, nor the
affidavits accompanying, have any legal value in determining the
question submitted. So far as the affidavits are concerned, suppose all
were considered as true and in all respects competent as testimony,
what do they show? At most, that some votes were wrongfully received,
and some erroneously rejected, at the election in question. They do
not, nor do any papers before the committee, show how many votes were
cast for anyone as a candidate in that district. The only manner in
which the ``affidavits'' could ``indicate'' a result would be to
furnish information whereby we might add to or subtract from the
aggregate vote previously ascertained to have been cast for the
respective parties; but the only ascertained result is embodied (if
anywhere) in the ``returns,'' which have been carefully excluded from
consideration here, and which had been sent from the governor months
before he ascertained what the affidavits in question ``indicated.''
The minority deny the right of the governor to do what he did:
By virtue of what law of Pennsylvania were affidavits of any
character submitted to the governor for his consideration? By the
sanction of what law did he transmit them to the Clerk of this House?
By what legal right did he base any act of his on such affidavits, or
on any affidavits connected with an election? He had already done all
that in his judgment he had any authority to do; and had parted with
all the records which gave him an original right to do anything
whatever in the case. If he had before that time done all his duty, the
duty was ended. If he had omitted any duty, in not having officially
declared a result in the Twenty-first district, the time for the
discharge of that duty passed, and the power to discharge it ceased,
when the returns left his possession; and any later act of his in the
premises was without sanction of law, of none effect, and entitled to
no consideration here or elsewhere.
The authority of the case of Butler v. Lehman is denied after
discussion of the precedent.
The minority therefore proposed a resolution declaring that the
papers referred to the committee did not show what person was entitled
prima facie to represent the district.
The report was debated on April 2.\1\ It was pointed out that the law
of Pennsylvania did not require the governor to send his proclamation
to the House, but did
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\1\ Globe, pp. 452-466.
Sec. 560
require him to send the returns. The returns had in fact been sent, and
it was asserted that these returns made out a prima facie case for Mr.
Foster. But the House had excluded the Committee on Elections from
taking those returns into consideration. But it was urged that the
House might consider the returns if the committee did not. Mr. H. E.
Paine, of Wisconsin, proposed the following resolution, which was
agreed to without division:
Resolved, That the contested election case from the Twenty-first
Congressional district of Pennsylvania be recommitted to the Committee
on Elections with instructions to report upon the merits of the case,
who is entitled to represent said district in this House, with
authority to make regulations to govern the mode of conducting the
contest and taking testimony.
On April 5 \1\ the committee reported and the House agreed to the
following regulations:
Each of the claimants shall serve upon the other a notice of the
grounds on which he claims the seat before June 1, 1869, and an answer
to the notice of his opponent before June 20, 1869. Said Covode shall
take his testimony between the 1st and 15th days, inclusive, of July,
August, and September, 1869; and said Foster shall take his testimony
between the 16th and last days, inclusive, of the same month. The
statutory provisions regulating ordinary cases of contest shall apply
to this case so far as the same are consistent with these regulations.
All testimony shall be transmitted under seal, by the officers before
whom the same shall be taken, to the Clerk of the House at Washington,
so as to be received by said Clerk before the 15th day of October,
1869; before which days the notices, answers, evidence, and exhibits in
the case shall be filed with said Clerk. And the clerk of the Committee
on Elections shall immediately thereafter arrange the papers for the
Public Printer, and cause the same to be printed before the 1st day of
November, 1869; and printed arguments of the claimants shall be filed
with the Committee on Elections on the fast day of next session.
560. The case of Covode v. Foster, continued.
An instance of rejection of a poll where irregularities in both the
reception and counting of votes, cumulatively considered, showed a want
of good faith and regard for law.
Participation of an unsworn person in the count may be held a
contributory irregularity in justifying rejection of a poll.
On January 27, 1870,\2\ Mr. John C. Churchill, of New York, from the
Committee on Elections, submitted a report, the case being called
Covode v. Foster. The report finds from the certificates of the return
judges of the several counties in the district that Henry D. Foster had
a returned majority of 41 votes. The majority of the committee were
convinced that certain obviously proper corrections would increase this
majority to 64.
The majority found, however, that this vote was successfully assailed
by Mr. Covode. The examination of this question divided itself into
several branches.
(1) In Dunbar Township, where a majority of the board of election
officers belonged to Mr. Foster's party, ballots were received for a
time in a cigar box and a hat, and afterwards transferred to the
regular boxes, the proceeding being contrary to the requirements of
Pennsylvania law; persons, some under the influence of liquor, were
near the boxes during the day; one inspector of election was under the
influence of liquor; challenges were disregarded, in violation of law,
and evi-
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\1\ Globe, p. 510.
\2\ House Report No. 15, second session Forty-first Congress, 2
Bartlett, p. 600; Rowell's Digest, p. 237.
Sec. 560
dently resulted in the voting of persons not entitled to vote; while
the votes were being counted one election officer was taken sick and
one, William Speers, shown to be an unscrupulous partisan of Mr.
Foster, took the vacant place without being sworn, and officiated until
the end of the count; six more ballots were found in the box than could
be accounted for by the names on the tally list. The majority of the
committee say:
From all the evidence, I think we must conclude that the returns of
such an election are too unreliable to be received, and as neither
party has attempted to prove what votes were cast for him at that
election, that the whole poll of Dunbar Township must be rejected.
While it is well established that mere neglect to perform directory
requirements of the law, or performance in a mistaken manner, where
there is no bad faith and no harm has accrued, will [not) justify the
rejection of an entire poll, it is equally well settled that where the
proceedings are so tarnished by fraudulent, or negligent, or improper
conduct on the part of the officers as that the result of the election
is rendered unreliable, the entire returns will be rejected, and the
parties left to make such proof as they may of votes legally cast for
them.
The minority \1\ do not agree to this:
We do not concur in this conclusion, believing that in such Case it
should be made the duty of each party to a contest, respectively, to
prove the illegal votes cast at such poll, and for whom such illegal
votes were given. Those not proved to be illegal should stand; that is
to say, that such poll be purged of its illegal votes only; those left
to be duly counted. The merits of a contested election depend upon the
finding out which of the candidates received the greatest number of
legal votes. The only way to arrive at this is to show of the votes
cast for each candidate those that were illegal. It is at no time
justifiable to throw out an entire poll, and in this way disfranchise
the whole voting population of a district, if it can be purged of its
illegal portion. In this case the testimony is full as to Dunbar
Township, and the illegal votes, by said testimony, can be readily and
conclusively determined. This is a Pennsylvania case, and the courts of
that State have, in all contested elections, held that impossibility of
ascertaining the true state of the poll is the only ground for
rejecting it. To show that the majority themselves are in doubt as to
the justness of rejecting this entire poll, they present to the
consideration of the House the condition of the poll after they have
purged it of all the illegal votes alleged and proved to have been
cast. This latter course should commend itself to your judgment, and
while being in strict accordance with law and precedent, is, at the
same time, a protection to the honest voters in every poll.
After reviewing each irregularity the minority say:
One by one we have disposed of the complaints and irregularities made
against this (Dunbar) township poll. Surely, if they can not stand
singly, they should not be made to prop each other and thus have force
combined.
In the debate \2\ the majority did not contend that any one of the
irregularities would justify the contemplated action, but did urge that
taken together they showed--
a want of that good faith and regard for law the presumption of which
is the foundation of the authority which is given to the returns of an
election board.
The position of the minority against the rejection of the return was
analyzed in the debate \3\ the point being made that the rejection of
returns in which no confidence could be placed was not a
disfranchisement of legal voters. It was simply
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\1\ The minority views were signed by Messrs. Samuel J. Randall, of
Pennsylvania; Albert G. Burr, of Illinois, and P. M. Dox, of Alabama.
\2\ Remarks of Mr. Churchill, Globe, p. 1116.
\3\ By Mr. Luke P. Poland, of Vermont, Globe, p. 1158.
Sec. 561
a declaration that the candidates could not use the discredited return
to prove the votes, but must prove the votes otherwise. Not having
submitted any proof, no votes could be counted.
561. The case of Covode v. Foster, continued.
Neglect of a mandatory law requiring a voting list to be furnished at
a poll was, in connection with questionable acts of partisan election
officers, sufficient to justify rejection of the poll.
Paupers supported in a county poorhouse were held to have gained no
residence in the town by reason of this enforced stay.
The House has rejected votes of lunatics whose votes had been
received by election officers and in whose cases there had been no
findings in lunacy.
(2) The majority of the committee found that through the apparently
intentional irregularities practiced by one Eisaman, an assessor whose
duty it was to furnish the voting list at Youngstown election district,
the officers of election used a list which Eisaman had posted in
accordance with law, but not the list he was required to furnish for
the election. The report says:
The assessor assessed persons who made no personal application to
him, contrary to the law; the names of the persons so assessed he did
not enter upon the list in his possession, as required by law, but upon
a separate piece of paper, which was not a legal assessment; nor did he
furnish any copy of this to the county commissioners at any time before
the election, nor to the inspectors of elections on or before 8 o'clock
on the forenoon of the day of election, as required by law. All these
provisions of law are not directory merely, but mandatory, and enforced
by severe penalties. (Election Laws, p. 42, sec. 85.)
But whether the assessment made by Eisaman was a legal assessment or
not (and we think no legal assessment was shown to have been made), the
failure of Eisaman to furnish to the inspectors a copy of the list had
the same effect, so far as that election was concerned, as though no
assessment whatever had been made.
The law of Pennsylvania is explicit that when the name of the person
coming to vote is not found on the list furnished by the commissioners
or assessors the board must examine him under oath as to his
qualifications, and he must prove by at least one witness, who must be
a qualified elector, that he has resided in the district at least ten
days next immediately preceding the election. (Election Laws, 33, sec.
42, 2 par., 553, 580-581.) That law further provides that if any
inspector or judge shall receive the name of any person whose name
shall not be returned on the list furnished by the commissioners or
assessor without first requiring the evidence directed by the act, the
person offending shall, on conviction, be fined not less than $50 nor
more than $200. (Election Laws, 41, sec. 81.)
The assessor having failed to furnish the inspectors with any copy of
the list of taxables, the board could legally receive no vote at that
election, except by requiring him to be examined as to his
qualifications under oath, and to furnish the further evidence required
by the act. Nothing of this kind was done; but, instead, the votes of
persons were rejected because their names were not found on this paper
taken from the tavern wall, and they were permitted to vote because
their names were found thereon. This alone we think sufficient to
invalidate the election in that district.
But the conduct of the election board was equally blameworthy with
that of the assessor. From the report which had gone out that an
unusually large number had been assessed at the monastery, and from the
gathering of strangers there, it was believed that improper votes would
be attempted to be polled, and a purpose seems to have been formed to
prevent these votes being received, except upon proper examination. But
from the commencement of the election until about 11 o'clock, during
which time the greater part of these votes were polled, challenges were
entirely disregarded.
In addition, the paper used by the election officers disappeared
after the election, and there was no means of determining as to its
value. Also all the election officers were of Mr. Foster's party.
Sec. 561
Therefore the majority recommend the rejection of the entire vote of
Youngstown as returned.
The minority find that the assessor performed properly all the duties
in relation to the lists, except one:
But the last requirement--i. e., to make out duplicates of these
lists and file one in the county commissioner's office and hand the
other to one of the inspectors of the election before 8 o'clock on the
morning of said election--was neglected to be done by the assessor. And
because of the neglect of this one, and not the most material
requirement, having fulfilled every other duty incumbent on him, and in
so doing acting under the sanctity of his official oath, the majority
ask now to reject this entire poll.
If there had been no official act whatever performed by the assessor
necessary to the proper conduct of this election, then the committee
might, with some propriety, ask for the rejection of this poll. In
performing none of his duties, the officers of the election would have
been compelled to close the polls or to have proceeded without official
knowledge as to who were the taxables and voters of the district; even
then we hold that it would have been competent for the officers of the
election to have received the votes of all persons offering to vote,
who, upon examination under oath, were found to have the constitutional
qualifications of voters. But they were placed in no such position by
the neglect of this assessor. They were not without a proper guide for
the conduct of the election.
(3) It was shown that in South Union certain inmates of the local
poorhouse, who were sent there from other townships, had voted for Mr.
Foster. The same thing occurred at Hemphill Township. The majority of
the committee conclude:
The testimony further shows (Zundell, 191) that none of these persons
were assessed upon personal application, and also that none of them
paid the tax upon which they were permitted to vote (192, 273), but
that their names were handed to the assessor and their taxes paid by an
official who understood that they would vote, and for the purpose of
enabling them to vote a particular ticket, both assessment and payment
of tax being illegal as against the express letter of the election laws
of Pennsylvania. (Election Laws, 24, sec. 13; 40, sec. 75.) But did
these persons acquire a residence in the election district where the
county-house was situated, within the meaning of the law of
Pennsylvania, which requires that the voter shall have resided at least
ten days immediately preceding the election in the district where he
offers to vote? We think not. Their residence at this place was not
their own voluntary act, but the act of the public authorities, who,
for reasons of economy and convenience, sent them here that they might
be supported at the public expense.
The court, in Murray v. McCarty (2 Mun., 397), says, that to divest a
person of the character of citizen of a particular place, ``there must
be a removal with an intention to lay aside that character, and he must
actually join himself to some other community.'' The italics are those
of the original report.
So Burrill (Law Dic., tit. Residence) defines residence as ``the
place which one has made his seat, abode, or dwelling.'' The
derivation, as well as the ordinary acceptation of the term, denotes
the place where the party has seated himself, and his own choice or
free will in the matter is assumed. We think this the legal as well as
the ordinary meaning of the term, and that accordingly the soldier who
occupies a place at the command of his military superiors, the criminal
who does the same thing while in custody in the hands of the criminal
authorities, and the pauper who is placed and supported in the county
poorhouse at the public expense, gains no residence in the town by his
enforced stay. We think, therefore, that these fifteen votes should be
deducted from the vote for Mr. Foster.
The minority decline to sanction the deduction of the poorhouse vote,
quoting the case of Koontz v. Coffroth.
(4) The majority rejected the votes of certain lunatics, saying:
As to lunacy, it was held by the court in Thompson v. Ewing (1
Brewster, Rep., 104), that it was proper to show in a contested-
election case that a voter was non compos mentis, and that without a
finding in lunacy.
The minority say:
As to the lunacy vote--four in number--we desire to say that the
constitutional requirements do not set up any prohibition as against
simple-minded men or lunatics. The extent of the mental imbecility
would seem, therefore, to have been left to the officers of the
election to determine, and upon such extent of weak intellect admit or
reject the vote when offered.
562. The case of Covode v. Foster, continued.
The House rejected a vote found by the judges in an irregular place
and counted in spite of the fact that it caused an excess in the poll.
The House may count votes improperly rejected by election officers.
The House may count votes not cast because of intimidation practiced
in presence of the election officers and which it was their duty to
prevent.
(5) Certain other votes the majority reject:
To these should be added 1 vote for Foster for Congress found in the
State box in Sewickly Township and counted to him, although thereby the
number of votes for Congress was made one greater than the number of
names on the list (377).
Also, 1 vote for Foster in South Huntingdon Township, found upon the
floor at the close of the counting, a considerable crowd standing
around, and counted to Foster, although thereby the number of votes for
Congress was made one more than the number of names on the list of
voters.
The minority say:
How such conclusion can be reached passes our comprehension. If
anyone can determine that the vote in excess may not have just as
likely been cast for Mr. Covode as for Mr. Foster, he will have
succeeded better than can be determined by those who sign this report.
So, also, with regard to one vote in South Huntingdon Township, which
was found on the floor, and counted for Mr. Foster.
In the debate the majority retorted that the votes found not in the
ballot box but in an irregular place was certainly the one to be
deducted.
(6) The majority also counted certain votes not cast. There were
votes improperly rejected, and one vote prevented by threats of
violence made in the presence of the election officers, and against
which it was the duty of the election officers to protect the voter.
The majority of the committee found Mr. Covode elected by 402
majority, and reported the following resolutions:
Resolved, That Henry D. Foster is not entitled to a seat in this
House as Representative from the Twenty-first Congressional district of
Pennsylvania.
Resolved, That John Covode was duly elected Representative in
Congress from the Twenty-first Congressional district of Pennsylvania
at the election held therein on the 13th day of October, 1868, and that
he is entitled to a seat in this House as such Representative.
The report was debated at length on February 8 and 9,\1\ and on the
latter day a resolution offered as a substitteu declaring Mr. Foster
entitled to the seat was disagreed to--yeas 49, nays 122.
The first resolution of the majority was agreed to without division.
The second resolution was then agreed to--yeas 121, nays 45.
Mr. Covode was then sworn in.
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\1\ Globe, pp. 1114, 1121, 1149, 1154-1160; Journal, p. 291.
Sec. 563
563. The Senate election case of Henry A. Du Pont, of Delaware, in
the Fifty-fourth Congress.
A claimant to a seat in the Senate, in a case where there was no
contestant and no credentials, petitioned for the seat, exhibiting
evidence in support of his claim.
A Senate discussion as to incompatible offices and as to cases
wherein the acceptance of one creates a vacancy in another.
A Senate committee concluded that the Journal entries of a
legislative body were conclusive as to all the proceedings had and
might not be contradicted by ex parte evidence.
The senate of a State having failed to adjudge a participating Member
disqualified, the United States Senate, in a close decision, declined
to reject the vote of the said Member for Senator.
On December 4, 1895,\1\ in the Senate, Mr. John H. Mitchell, of
Oregon, presented the following:
To the Senate of the United States:
The undersigned hereby claims the right to be admitted as a Senator
from the State of Delaware under an election by the legislature of said
State on the 9th day of May, A. D. 1895, to fill the term of six years,
commencing on the 4th day of March, A. D. 1895, and herewith presents
evidence in support of his claim.
H. A. Du Pont.
This paper, which was treated and described as a petition, was
accompanied by a certificate of the speaker of the Delaware house of
representatives, attested by the clerk of the said house, setting forth
the proceedings by which it was claimed that Mr. Du Pont had been
elected, and the particular question wherein a doubt as to his election
was involved.
These papers, as well as others filed at a later date, were referred
to the Committee on Privileges and Elections.
No request was made that Mr. Du Pont should be sworn in; but he was
accorded the privileges of the floor of the Senate.
On February 18, 1896,\2\ Mr. Mitchell presented the report of the
committee, which was concurred in by Messrs. George F. Hoar, of
Massachusetts; William E. Chandler, of New Hampshire; Julius C.
Burrows, of Michigan; and J. C. Pritchard, of North Carolina. The
minority dissented and filed views which were signed by Messrs. David
Turpie, of Indiana; James L. Pugh, of Alabama; George Gray, of
Delaware, and John M. Palmer, of Illinois.
As to the facts, the report says:
The legislature of the State of Delaware consists of a senate,
composed of 9 senators, 3 of whom are elected from each of the three
counties of the State, and a house of representatives of 21 members, 7
of whom are elected from each of the three counties of the State. When
there are no vacancies in the membership, and all are present in joint
assembly of the two houses for the purpose of electing a United States
Senator, such joint assembly is composed of 30 members, thus requiring
the votes of 16 members to elect.
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\1\ First session Fifty-fourth Congress, Record, pp. 29, 30.
\2\ Record, pp. 1827-1861. The report, with minority views and
exhibits, is printed in full in the Record.
Sec. 563
In the event of one vacancy caused either by death, resignation,
inability to act, or for any other reason, then the joint assembly, all
others being present, would be composed of 29 members, in which event
the votes of 15 members would be sufficient to elect.
At the meeting of the joint assembly of the legislature of Delaware
on the 9th day of May, 1895, which assembly, it is conceded, was in all
respects regularly called and held in pursuance of law, the final vote
was as follows:
Joint meeting proceeded to another ballot, which resulted as follows:
* * * * * * *
H. A. Du Pont had 15
Ed. Ridgley had 10
J. Edward Addicks had 4
Ebe W. Tunnell had 1
There being present in such joint assembly, and each casting a vote,
30 persons, each claiming to be a member of the legislature of the
State of Delaware and entitled to vote for United States Senator.
It is conceded by Mr. Du Pont and by your committee that if this
contention is true--that is, if each of the 30 persons so present in
such joint assembly and each of whom cast a vote for Senator was a duly
qualified member of the legislature of the State of Delaware and under
no disability as such which would deprive him of his right to a seat in
such assembly and to cast a vote for Senator--then Mr. Du Pont was not
elected Senator and is not entitled to a seat in the Senate.
It is admitted upon the part of Mr. Du Pont, and such is the fact,
that of the 30 persons so present and claiming a right to vote as
aforesaid, 29 of them were so qualified. It is contended, however, that
1 of the 30, namely, William T. Watson, claiming to be a senator from
the county of Kent, and claiming to be the speaker of the senate, and
claiming the right, as such senator, to be present and participate in
the proceedings of such joint assembly, and to cast his vote for
Senator, was not entitled under the constitution of the State of
Delaware and the laws of the land, to be present in such joint
assembly, had no right to be counted therein in making up the number
present, and had no right to cast his vote in such assembly for any
person for Senator.
If this contention upon the part of Mr. Du Pont is correct, then it
is conceded, provided the right to inquire into Watson's qualifications
to vote in such assembly now exists, that, inasmuch as in that event
there were but 29 members of the legislature of the State of Delaware
present entitled to vote, and as it is conceded Mr. Du Pont received
the votes of 15 of such members, no one of which was that of Mr.
Watson, thus receiving a clear majority of all the votes cast, entitled
to be cast, he was duly elected Senator, and is entitled to his seat.
The whole question involved, then, in this case is as to the right of
Watson to be present in such joint assembly, and to be counted therein
in making up the number present, so as to require the votes of 16
members to make an election.
The ground upon which it is claimed upon the part of Mr. Du Pont that
Mr. Watson was ineligible to a seat in such joint assembly, and should
not have been counted therein in making up the number constituting the
same, is based on the fact that, although he had been duly elected a
senator from the county of Kent, and from the commencement of the
session in January, 1895, until April 9 of that year, had held and
occupied a seat in the senate and had been elected speaker thereof, and
served in that capacity, he had, on the 9th day of April, 1895, the
governor of the State of Delaware, Joshua H. Marvil, having died the
day previous, succeeded to the governorship of the State in virtue of a
provision of the constitution of that State, and from that date until
the 9th day of May following had continued to exercise the functions
and duties of executive of the State, and has ever since and still
continues to exercise the office of governor of said State, and that,
therefore, on that date, May 9, 1895, he, then holding the office of
and being the governor of the State of Delaware, was ineligible to a
seat in said joint assembly, and had no right whatever, under the
provisions of the constitution of the State and of the laws of the
land, to be present, either to participate by his vote or otherwise, or
to be counted therein.
Your committee hold that this contention on the part of Mr. Du Pont
is well founded.
The clause in the Delaware constitution in pursuance of which Mr.
Watson, as speaker of the senate became governor on April 9, 1895, and
which will be commented on later in this report, is found in section 14
of Article III, and is as follows:
Sec. 563
``Upon any vacancy happening in the office of governor by his death,
removal, resignation, or inability, the speaker of the senate shall
exercise the office until a governor elected by the people shall be
duly qualified.''
It is conceded a vacancy in the office of governor occurred on April
8, 1895, by the death of the then governor of the State, Joshua H.
Marvil; also that Senator Watson was then and on April 9, 1895, speaker
of the senate, and that on this latter date he took the required oaths,
was inaugurated, and entered upon the exercise of the office of
governor, and has continued to hold and exercise such office ever
since.
PROCEEDINGS OF THE LEGISLATURE.
The legislature of the State of Delaware met in biennial session on
the first Tuesday of January, 1895, and on that day organized by the
election of speakers and other officers for the senate and house of
representatives. There were at that time 9 members of the senate and 21
members of the house of representatives, 3 senators and 7
representatives having been chosen from each of the three counties in
the State. At the organization of the senate William T. Watson was duly
elected speaker and continued in the discharge of his official duties
as speaker of the senate, save during occasional absences, until the
9th day of April, 1895, the day following that on which Joshua H.
Marvil, governor of the State of Delaware, died.
This legislature being charged with the duty of electing a Senator of
the United States for the constitutional term of six years commencing
on the 4th day of March, 1895, and having failed to elect such Senator
on the second Tuesday after the meeting and organization of such
legislature, convened in joint assembly on the next day, being the 16th
day of January, pursuant to the provisions of the act of Congress
entitled ``An act to regulate the times and manner of holding elections
for Senators in Congress,'' approved July 25, 1866, and proceeded to
vote for a United States Senator.
No one having been elected to that office on that day, the
legislature, pursuant to the provisions of said act, convened in joint
assembly on the following and succeeding days, Sundays excepted, until
and including Thursday, the 9th day of May, 1895. No one was elected
United States Senator prior to the day last named. On the 9th day of
April aforesaid, immediately after the joint assembly of the two houses
had separated, Senator William T. Watson, who at the time of the death
of Governor Marvil, which occurred on the preceding day, had been
speaker of the senate, took the official oaths prescribed for-the
governor of the State of Delaware, and forthwith entered upon the
exercise of that office.
It is conceded that from the commencement of the voting for a United
States Senator until and including the 9th day of April, Senator
William T. Watson took part in such voting except during occasional
absences.
Furthermore, it is a conceded fact, and if not conceded, fully borne
out by the journal entries and other testimony, that from the time he
took the oaths of office and assumed the functions of governor in the
exercise of such office until the final joint assembly of the two
houses on the 9th day of May, Governor Watson did not upon any occasion
take any part either in the proceedings of the senate or of the joint
assembly.
And, further, it is clear to your committee from the record and other
evidence submitted that from the hour of his inauguration as governor,
by taking the constitutional oaths required of a governor, his name was
dropped from the roll call of the senate and was never once called,
either as of speaker or as of a senator, on any roll call had on any
bill, resolution, or motion until the final adjournment of the senate.
Senator Alrichs, in his affidavit of date January 28, 1986 (Doc. 9,
part 6, p. 1), shows this conclusively, and it is not contradicted by
any affidavit filed in the case.
* * * * * * *
It is conceded, however, that Governor Watson did, on the 9th day of
May aforesaid, enter the final joint assembly and assume the right to
be counted as a member of such assembly, and the right to vote therein
for a United States Senator. During this final assembly 28 ballots were
had for United States Senator. The vote upon each ballot as shown by
the record of such assembly was as follows:
Votes.
Henry A. Du Pont 15
Ed. Ridgely 10
J. E. Addicks 4
E. W. Tunnell 1
Sec. 563
William T. Watson, then governor of the State of Delaware, as
aforesaid, cast his vote each time for Ed. Ridgely.
It will be seen, therefore, the whole question of the right of Mr. Du
Pont to a seat in the Senate, as claimed, turns upon the single
question: Had William T. Watson, then holding and exercising the office
of governor of the State of Delaware, a right under the constitution of
that State and the laws of the land, to exercise the office of State
senator, and as such to sit in the joint assembly on May 9, 1895, to be
counted therein in making up the number constituting such joint
assembly, and to vote therein for a United States Senator? Your
committee are clearly of the opinion he had not.
PROPOSITIONS INVOLVED.
In determining this question three different propositions are
presented for our consideration:
First. Did the offices of senator and speaker of the senate, held by
William T. Watson from the commencement of the session of the Delaware
legislature in January, 1895, until April 9, 1895, become absolutely
vacant on the inauguration of said William T. Watson as governor of the
State by taking the oaths of office required of a person entering upon
the exercise of that office? Or,
Second. If such offices of senator and speaker of the senate did not
become absolutely vacant upon such inauguration as governor, was the
right of Watson to exercise the functions of both speaker of the senate
and senator held in abeyance and suspended for and during the time he
should continue to hold and exercise the office of governor? Or,
Third. While holding and exercising the office of governor did said
William T. Watson not only continue to hold the offices of senator and
speaker of the senate, but did his right to exercise all the functions
of such senator and speaker of the senate while holding and exercising
the office of governor continue to exist?
The answer to either or both of the first two propositions in the
affirmative settles the question in favor of the right of Mr. Du Pont
to a seat, while an affirmative answer to the third proposition, which
of course negatives the other two, would be a denial of his right to a
seat.
The report discusses at great length the various questions involved
in the case, and arrives at the following conclusions of law and fact:
(1) It is a well-settled rule of the common law that the same person
shall not exercise simultaneously two incompatible offices; and
further, the acceptance of one is ipso facto a resignation of the
other.
(2) Under the American system executive and legislative offices are
incompatible, and the same person can not exercise both simultaneously
in the absence of either express or clearly implied statutory or
constitutional authority; and the acceptance of the second is ipso
facto a resignation of the first.
(3) There is no express or implied authority in the constitution of
the State of Delaware for the simultaneous exercise by the same person
of the offices of governor and senator; on the contrary, such
constitution expressly interdicts such exercise of those two offices.
(4) Whether or not the offices of State senator and speaker of the
senate became absolutely vacant when Speaker Watson took the oath of
office, was inaugurated governor of the State, and entered upon the
exercise of that office, there can be no doubt, on a fair construction
of the several constitutional provisions of the State of Delaware, that
his right to exercise the office of senator or speaker of the senate,
or any of the functions connected therewith while he continued to hold
and exercise the office of governor, was held in abeyance and
absolutely suspended.
(5) The theory that Mr. Watson can exercise the office of governor of
the State and State senator simultaneously, involves innumerable
constitutional repugnancies, perplexing difficulties, and endless
absurdities; while the opposite theory reconciles and harmonizes all
the provisions of the Delaware constitution relating to the subject
under consideration.
(6) That Governor Watson's exercise of the office of senator in the
joint assembly on the 9th day of May, 1895, and of the office of
president of such joint assembly was illegal, and his vote therein for
United States Senator a nullity.
In determining the above propositions your committee reach the
further following conclusions:
(7) In determining the question as to whether the Delaware senate on
May 9, 1895, acted upon or judged, either actually or constructively,
the qualifications of Governor Watson to a seat in the senate, the
journal entries of the proceedings of the Delaware senate of that date
are conclusive as to the number
Sec. 563
and names of senators present, the motions submitted, the votes cast,
and of all the proceedings had, and can not be contradicted by ex parte
affidavits.
(8) The right which undoubtedly belongs exclusively to the Delaware
senate to judge of the elections, returns, and qualifications of
members, does not vest in such senate any exclusive right as would
conclude the Senate of the United States to determine by construction
whether the constitution of the State of Delaware does or does not
recognize a certain seat in the senate as subject to occupation--nor
does it include the power to admit members to seats not recognized by
the constitution of the State as subject to occupation, or, if subject
to occupation, to fill them in a manner or by a person which the State
constitution forbids.
(9) Your committee, applying these rules, find as a matter of fact
the Delaware senate never judged of the qualifications of Governor
Watson to a seat in the senate, either on the 9th day of May, 1895, or
at any other time subsequent to the date of his inauguration as
governor.
(10) That on May 9, 1895, the date on which Mr. Du Pont claims to
have been elected, the legislature of the State of Delaware consisted
of but 29 members; there were in the joint assembly on that date but 29
members of such legislature entitled to seats in such joint assembly
and entitled to be counted and vote therein. As Mr. Du Pont received 15
votes, being a majority of the whole number entitled to be cast in such
joint assembly, and a majority of all the legal votes cast therein, he
was legally elected Senator from the State of Delaware for the full
term commencing March 4, 1895, and is entitled to be seated.
(11) The fact that such election is not certified by the governor of
the State in pursuance of the statute on that subject does not
invalidate such election in any respect.
Your committee, therefore, report to the Senate the following
resolution and recommend its adoption:
Resolved, That Henry A. Du Pont is entitled to a seat in the Senate
from the State of Delaware for the full term commencing March 4, 1895.
The minority held that because of the peculiar provisions of the
constitution of Delaware the common law as to incompatibility would not
apply.
The constitution of Delaware does not provide that the speaker of the
senate, on the death of the governor, shall either be or become
governor, but only that such speaker ``shall exercise the office of
governor.'' It does not provide that he shall, in such an event, cease
to be speaker, or cease to be senator, or that a vacancy exists in
either position; and we do not think that we can amend. the
constitution of a State by the process of an argument in a contested
seat here.
Not only is no vacancy created in such instance by the devolution of
``the exercise of the office of governor'' upon the speaker of the
senate, but the constitution of the State expressly provides that I
``each house, whose speaker shall exercise the office of governor, may
choose a speaker pro tempore''--that is, a temporary speaker to preside
in the room of the permanent speaker when he may be absent, thus
plainly implying that there is no vacancy in the office of speaker, and
that there is no vacancy in the office of senator or representative (as
no one could be speaker except a member of one of the houses) by this
devolution of the exercise of the office of governor.
In section 14 of the constitution, where it is provided that the
speaker of the house ``shall exercise the office of governor ``if there
be no speaker of the senate, the distinction between the speaker of
either house exercising the office of governor, and the governor as
such, is very clearly implied in the phrase, ``until a governor elected
by the people shall be duly qualified.'' And in the same section,
afterwards, the person elected governor is distinguished from the
temporary occupant exercising the office of governor by the recurrence
three times of the phrase, ``the person who exercises the office of
governor.'' And when the contingency arises of a vacancy in the office
of governor, and there be no other person who can exercise the office
of governor within the provisions of the constitution, the general
assembly shall proceed to elect ``a person to exercise the office of
governor until a governor elected by the people shall be qualified.''
This person so chosen is not called governor, but a ``person to
exercise the office of governor.''
And when, in the case of a contested election, someone is to be
designated to perform gubernatorial duties, it is provided ``that the
speaker of the senate or the speaker of the house who may then be in
the exercise of executive authority'' shall continue therein until a
determination of the contest. It is manifestly expressed that the
person exercising the executive authority is not the governor, but
Sec. 563
that he is, and remains, and must continue to be speaker of the senate,
or speaker of the house, notwithstanding the fact that the ``exercise
of the office of governor'' may for the time being devolve upon him.
If this interpretation of the constitution of the State were at all
doubtful, it is abundantly sustained by practical, contemporaneous, and
continuous construction in the actual administration of the government
of Delaware. Three persons, upon each of whom at different times
devolved, under this clause, the exercise of the office of governor
(John Sykes, Jacob Stout, and Caleb Rodney), speakers of the senate,
who temporarily exercised the executive authority as such speakers,
after they had exercised the office of governor ad interim, returned to
the senate and served out the terms for which they had been elected as
senators in the senate. No suggestion was made that they had vacated
their office as senators or had become governors of the State of
Delaware by reason of the temporary exercise of executive duties
imposed upon them by section 14, article 3, of the constitution.
Furthermore, the minority contended:
The senate of the State of Delaware is made by law the judge of the
elections, returns, and qualifications of its own members. In the case
presented by Mr. Du Pont against the legality of the vote of Mr.
Speaker Watson as a member of the joint convention, no question is made
as to the election and return of Mr. Watson as a senator. The whole
case rests upon the question of his qualifications. And even upon the
subject of qualification, it is not denied that at the time he took his
seat in the senate, he was fully and legally qualified to act and vote
therein, but it is earnestly insisted that after he bad taken his seat
he did and performed certain acts and duties which deprived him of his
legal qualifications, and had rendered him unqualified, disqualified,
and incompetent to vote or act as a member of the senate or of the
joint convention.
This position of the claimant, Mr. Du Pont, raises the most serious
question in this case, which is, as to who can lawfully decide and
determine as to whether or not the acts of Mr. Speaker Watson referred
to destroyed or suspended his qualifications as a senator, and by
consequence as a member of the joint convention.
We think that the senate of the State of Delaware, whereof he was a
member, is the sole tribunal which could either hear or determine
lawfully these objections to the qualifications of Senator Watson.
It is charged that he was absent from the senate from the 9th day of
April, 1895, until the day of the joint convention. If he were absent
in discharge of any duties, executive or official by the law of
Delaware, incompatible with the office of senator, or if his absence
was contumacious and perverse, this might have constituted a cause for
the judgment of the State senate for his ouster from the senate, his
suspension as a senator, or the vacation of his seat. If, whether
present or absent, during his term, he had committed any act in
violation of the laws and constitution of his State, or of the United
States, this might have constituted a cause for the judgment of the
State senate against him for his suspension or for his expulsion; the
vacation of his seat and office, and for the issuing of a writ of
election for the choice of his successor as senator from the county of
Kent.
Causes for judgment of suspension, ouster, vacation, or expulsion
against a sitting member or senator are not, however well founded,
judgments. They have legally none of the force or effect of judgments
or adjudications. There is no judgment or adjudication shown in the
record or journal of the senate of Delaware on any of these objections
to the qualifications of Mr. Watson as a member of that body.
If these charges or objections to his qualifications had been
presented and heard in the State senate, and judgment of suspension,
ouster, and vacation had been rendered against him, the case of Mr. Du
Pont might have been fully made out. This Senate and court of the
United States would have been bound thereby. If such a hearing had
terminated in his favor, the same result would have followed. The
judgment of the State senate is a finality.
As there was no hearing or judgment in respect to such charges in the
State senate, the seat and office of Senator Watson remains undisturbed
and unaffected thereby.
Because the State senate did not pass upon these charges or
objections to the qualifications of their fellow-member, we in this
body are not by law in anyway authorized to take jurisdiction. We have
no authority to originate, hear, or determine any objections to the
qualifications of those who acted and voted as members of the senate of
the State, or to revise or review their action or non action in the
premises
These considerations rest upon the great doctrine of the due
distribution of powers, and of
Sec. 564
the distinctive provinces of independent powers, to which the claimant
in this case has so strongly appealed, and which we now justly invoke
as showing the error of his position.
The constitution of Delaware, like that of the other States, and of
the United States, declares that ``each house shall judge of the
elections, returns, and qualifications of its own members.''
Each House of Congress is a court in such cases for the judgment of
its own members, but neither is a court or can be in any form a
tribunal to judge of the qualifications of any member of the State
legislature.
The minority discuss in this connection the cases of Sykes v.
Spencer, Turpie and Clark and Maginnis v. Sanders and Power. Therefore
the minority concluded:
First. That if there be any questions as to the lawful qualifications
of William T. Watson to act and vote as a senator, and, by consequence,
as a member of the joint convention, this is not the place, the time,
or the tribunal to either hear or determine such questions.
Second. The senate of the State of Delaware had paramount and
exclusive jurisdiction to adjudge such questions, and, whether they
exercised such jurisdiction or not, the Senate of the United States has
no jurisdiction in the premises.
Third. That Mr. Watson having acted and voted as a senator and as a
member of the joint convention at the time when the vote was taken
under which Mr. Du Pont claims his election to a seat in this body, he
is to be counted as a member of the legislature of Delaware in joint
convention assembled; that the whole number of members voting, being
the whole number of members of both houses, was 30; that Mr. Du Pont
did not receive a majority of this whole number; that we can not make
his vote of 15 a majority of such whole number by subtracting therefrom
the vote of one whose right and title to vote is not shown by the
record to have been adjudged against by the body of which he acted as a
member.
The report was debated at length in the Senate on March 5, 9-12, 18,
20, 31, April 1, 2, 13-16, May 4, 14, 15.\1\
On May 15,\4\ the question was taken on the motion of Mr. Turpie to
insert the word ``not'' before the word ``entitled'' in the resolution
proposed by the majority. This amendment was agreed to--yeas 31, nays
30. So it was--
Resolved, That Henry A. Du Pont is not entitled to a seat in the
Senate from the State of Delaware.
564. The case of Henry A. Du Pont, continued.
The Senate has decided that, while discovery of new evidence might
cause review of a decision in an election case, it should not for other
reasons change a judgment once made.
On January 12, 1897,\2\ at the next session of the Congress, Mr.
Chandler presented a memorial from Henry A. Du Pont alleging that he is
justly entitled to a seat in the Senate from the State of Delaware, and
that under the circumstances the question of the validity of his
election should again be investigated and acted upon, and that he hopes
and expects to show on another consideration of the subject that he is
entitled to such seat, and praying the Senate to reconsider the case
and seat the petitioner.
The memorial was received and referred to the Committee on Privileges
and Elections.
At later dates various petitions and memorials on the same subject
were presented and referred.
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\1\ Record, pp. 2419, 2477, 2595, 2639, 2684, 2728, 2921, 3004, 3378,
3423, 3469, 3898, 3943, 3981, 4031, 4768, 5226, 5286.
\2\ Second session Fifty-fourth Congress, Record, p. 706.
Sec. 564
On March 1\1\ Mr. George F. Hoar, of Massachusetts, presented the
unanimous report of the Committee, as follows:
Mr. Du Pont presented to the Senate, December 4, 1895, a petition for
admission as Senator from the State of Delaware for what then remained
unexpired of the term beginning March 4, 1895.
It appeared that at a joint convention of the two houses of the
legislature of the State of Delaware, duly held on the 9th day of May,
1895, 15 votes were cast for Mr. Du Pont and 15 votes for other
candidates. One of the votes cast for other candidates was the vote of
the acting governor of the State of Delaware, who had succeeded to the
executive chair on the death of the governor. He was a senator and the
speaker of the Delaware senate at the time of the alleged election, the
term of office for which he had been elected for senator and speaker
having not expired. If he were entitled to vote, Mr. Du Pont was not
lawfully elected. If he were not so entitled, Mr. Du Pont had a
majority of 1 vote. The question of his right to vote depended upon the
question whether his accession to the executive chair by virtue of the
constitution of the State should deprive him of his title to vote as a
senator.
That question was the only one raised in the discussion of Mr. Du
Pont's title to a seat in the Senate. The Committee on Privileges and
Elections reported in his favor and there was a full discussion of the
question.
On the 15th day of May, 1896, the Senate passed the following
resolution by a majority of 1 vote:
``Resolved, That Henry A. Du Pont is not entitled to a seat in the
Senate from the State of Delaware for the full term commencing March 4,
1895.''
Mr. Du Pont now prays to have this question reopened. The grounds of
his application, as stated in his petition and by his eminent counsel
in an argument addressed to the committee, are:
First. That there was a mistake in the pairs as announced when the
vote on this resolution was taken, so that a senator who was in favor
of Mr. Du Pont was paired against him. On investigation we find that no
such mistake occurred, and that every Senator who desired to vote who
was in favor of Mr. Du Pont either voted for him or was paired in his
favor.
Second. That the petitioner expects to satisfy the Senate that it was
wrong in its construction of the constitution of Delaware when it held
that the vote of the acting governor for another candidate than Mr. Du
Pont was lawful.
New Senators have entered the Chamber since the resolution just cited
was adopted. Nothing else has changed. The case then stated and acted
upon is the case now stated. The simple question is: Whether the
Senate, notwithstanding its decision of May 15, 1896, will now admit
Mr. Du Pont to a seat?
The majority of your committee now, as then, are of the opinion that
this decision of the Senate was wrong; but the Senate is made by the
Constitution, the judge of the elections, qualifications, and returns
of its Members, and its judgment is just as binding in law, in all
constitutional vigor and potency when it is rendered by one majority as
when it is unanimous.
It is clear that the word ``judge'' in the Constitution was used
advisedly. The Senate in the case provided for is to declare a result
depending upon the application of law to existing facts, and is not to
be affected in its action by the desire of its members or by their
opinions as to public policies or public interest. Its action
determines great constitutional rights--the title of an individual
citizen to a high office and the title of a sovereign State to be
represented in the Senate by the person of its choice. We can not doubt
that this declaration of the Senate is a judgment in the sense in which
that word is used by judicial tribunals. We can conceive of no case
which can arise in human affairs where it is more important that a
judgment of any court should be respected and should stand unaffected
by caprice or anything likely to excite passion or to tempt virtue.
Then the Senate decided the question it was sitting as a high
constitutional court. In its action we think it ought to respect the
principles, in giving effect to its own decision, which have been
established in other judicial tribunals in like cases and which the
experience of mankind has found safe and salutary.
We do not doubt that the Senate, like other courts, may review its
own judgments where new evidence has been discovered, or where by
reason of fraud or accident it appears that the judgment ought to be
reviewed. The remedy which in other courts may be given by writs of
review or error or bills of review may doubtless be given here by a
simple vote reversing the first adjudication. We have
-----------------------------------------------------------------------
\1\ Record, pp. 2524, 2525.
Sec. 565
no doubt that a legal doctrine involved in a former judgment of the
Senate may be overruled in later cases. But there is no case known in
other judicial tribunals in which a final judgment in the same case can
be rescinded or reversed merely because the composition of the court
has changed or because the members of the court who originally decided
it have changed their mind as to the law or fact which is involved.
It seems to us very important to the preservation of constitutional
government, very important to the dignity and authority of the Senate,
very important to the peace of the country, that we should abide by
this principle. There are few greater temptations which affect the
conduct of men than the temptation to seize upon political power
without regard to the obligation of law. To act upon the doctrine upon
which this petition rests would expose the Senate to the temptation to
reverse its own judgments and to vacate or to award seats in this
Chamber according as the changing majorities should make possible. If
such practice should be admitted it would, in our opinion, go far to
weaken the respect due to this body and the respect due to
constitutional authority.
No further action was taken on this report, but at once the Senate
acted on the conclusions by admitting Mr. Richard W. Kenney to fill the
seat in question.
565. The Maryland election case of Gabriel Duvall in the Third
Congress.
The House declined to seat a person bearing credentials regular in
form until it had ascertained whether or not the seat was vacant.
The resignation of a Member appears satisfactorily from his letter
directed to the governor of his State.
In its early years the House referred credentials for examination of
prima facie right after the bearer had been seated.
On March 24, 1794,\1\ Mr. John Francis Mercer, of Maryland, appeared,
produced his credentials, and took his seat, the oath being
administered by the Speaker.
As subsequently appears, Mr. Mercer, on April 13, 1794, by letter
transmitted to the governor of Maryland his resignation. He did not at
that time, and apparently did not at any other time, inform the House
of his resignation.
On May 31, 1794,\2\ the Speaker laid before the House a letter from
the governor of Maryland, inclosing a return of the election of Gabriel
Duvall, in place of Mr. Mercer.
At the beginning of the next session, on November 7, 1794,\3\ these
papers were referred to the Committee on Elections, who reported on
November 11,\4\ as follows:
That it appears from a certificate signed by the governor of the
State of Maryland, in council, and under the seal of the said State,
that Gabriel Duvall was duly elected to serve in the House of
Representatives of the United States, in the place of John Francis
Mercer, who resigned his seat.
That the resignation of the said John Francis Mercer appears from his
letter, dated the 13th of April, 1794, directed to the governor of
Maryland.
Resolved, That, in the opinion of the committee, Gabriel Duvall is
entitled to take a seat in the House, as one of the Representatives for
the State of Maryland, in the stead of John Francis Mercer.
The resolution was agreed to, and Mr. Duvall took the oath.
566. On December 4, 1798,\5\ on the second day of the third session
of the Congress, a new Member, Robert Brown, returned to serve in the
House as a Mem-
-----------------------------------------------------------------------
\1\ First session Third Congress, Journal p. 100 (Gales and Seaton,
ed.).
\2\ Journal, p. 192; Annals, p. 742.
\3\ Journal, p. 225, Annals, p. 871, second session, Third Congress.
\4\ Journal, p. 225; Annals, pp. 873, 874.
\5\ Third session Fifth Congress, Journal, p. 400.
Sec. 567
ber from Pennsylvania, in the room of Samuel Sitgreaves, appointed a
commissioner of the United States under the treaty with Great Britain,
appeared and took his seat in the House.
Although the Journal does not so state specifically, it is evident
that he must have taken the oath, since on December 14 \1\ he appears
as voting.
On January 13, 1799,\2\ Mr. Joseph B. Varnum, of Massachusetts, from
the Committee on Elections, ``to whom was referred the certificates and
other credentials of the Members returned to serve in this House,''
made a further report, as follows:
That it appears from a letter of the governor of Pennsylvania to the
Speaker of the House of Representatives, bearing date the 29th day of
December, 1798, and a return of the judge of election * * * that Robert
Brown has been duly elected as a Member of this House for the said
district, in the place of Samuel Sitgreaves, who has resigned his seat.
That the resignation of the said Samuel Sitgreaves satisfactorily
appears from his letter to the governor of Pennsylvania, bearing date
the 29th day of August, 1798 (in the recess of Congress).
Your committee are therefore of opinion that Robert Brown is entitled
to a seat in this House as one of the Representatives for Pennsylvania,
in the room of Samuel Sitgreaves.
567. The election case of Benjamin Edwards, of Maryland, in the Third
Congress.
The House declined to seat a Member-elect on presentation of a letter
of a State official showing that credentials had been forwarded to the
Speaker.
The House declined to seat a person bearing credentials regular in
form until it had ascertained whether or not the seat was vacant.
A letter from a Member stating that his resignation has been
forwarded to the governor of his State is satisfactory evidence of his
resignation.
On January 1, 1795,\3\ the Speaker presented to the House a letter
from Mr. Uriah Forrest, of Maryland, dated December 24, stating that
Benjamin Edwards had been elected in his place, he having resigned to
the executive of the State of Maryland. The Speaker also presented
another letter from John Kilty, clerk of the council of Maryland, dated
December 27, addressed to Benjamin Edwards, informing him that an
attested certificate of his election as a Representative for the said
State in place of Uriah Forrest had, by order of the council of the
State, been transmitted to the Speaker of the House of Representatives.
The House disregarded a suggestion that Mr. Edwards be admitted at
once to a seat, and referred the letters to the Committee of Elections.
On the same day the committee reported--
That it appears from a letter of the 27th of December, written by
direction of the council of Maryland, signed by John Kilty, clerk of
the council, and directed to Benjamin Edwards, that an attested
certificate of the election of the said Benjamin Edwards, as a
Representative in the room of Uriah Forrest, had, on that day, been
transmitted to the Speaker of the House of Representatives.
-----------------------------------------------------------------------
\1\ Journal, p. 408.
\2\ Journal, p. 433.
\3\ Second session Third Congress, Contested Elections in Congress
from 1789 to 1834, p. 92; Journal, pp. 279, 280; Annals, p. 1041.
Sec. 568
That the resignation of the said Uriah Forrest satisfactorily appears
from his letter of the 24th of December directed to the Speaker of the
House of Representatives.
Resolved, That, in the opinion of the committee, the letters
aforesaid are insufficient to establish the right of Benjamin Edwards
to a seat in the House as one of the Representatives for the State.
On January 2 the Speaker informed the House that he had received from
the governor of Maryland the certificate of Mr. Edwards. As the report
of the committee had not been acted on, the certificate was referred to
the committee, who made an additional report.
568. A Member-elect producing credentials showing his election to
fill the vacancy caused by the decease of his predecessor, is sworn in
at once, although no other notice of the decease may have been given to
the House.
In the early practice it was the duty of the Committee of Elections
to examine and report on the credentials of all the Members.
On January 29, 1795,\1\ Mr. Aaron Kitchell returned from New Jersey
in place of Abraham Clark, deceased, appeared, produced his
credentials, and having taken the oath took his seat in the House.
In a similar manner, on February 9, Robert Goodloe Harper, of South
Carolina, was seated in place of Alexander Gillon, deceased.
Messrs. Clark and Gillon were present at the preceding session,
answering to their names on the roll call.\2\ No notice of their deaths
seems to have been given the House until the credentials of their
successors were produced.
On February 14,\3\ the Committee of Elections, to whom the
credentials were referred,\4\ although the Members were sworn in,
reported that it appeared that each was duly elected, in place of his
deceased predecessor, and presented a resolution:
Resolved, As the opinion of the committee, that Aaron Kitchell is
entitled to a seat in this House, as one of the Representatives for the
State of New Jersey, in the room of Abraham Clark, deceased.
This, and a similar resolution in the case of Mr. Harper, were agreed
to by the House.
-----------------------------------------------------------------------
\1\ Second session Third Congress, Journal, p. 308 (Gales & Seaton
ed.).
\2\ First session Third Congress, Journal, pp. 198, 210 (Gales &
Seaton ed.).
\3\ Second session Third Congress, Journal, p. 328.
\4\ On November 7, 1794 (Journal, second session Third Congress, p.
224 (Gales and Seaton ed.)), the House had: ``Resolved, That a standing
committee of elections be appointed, whose duty it shall be to examine
and report upon the certificates of election, or other credentials of
the Members returned to serve in this House; and to take into their
consideration all such matters as shall or may come in question, and be
referred to them by the House, touching returns and elections, and to
report their proceedings, with their opinion thereupon, to the House.''
This became a standing rule of the House defining the duty of the
Committee of Elections (see Journal, first session Seventh Congress, p.
40 (Gales & Seaton ed.)), and remained a rule until the revision of
1880.
This examination of credentials of all Members, irrespective of
whether or not any question had been raised, was a function of the
Elections Committee from the very first. Thus, on April 18, 1789
(Journal, first session First Congress, p. 16 (Gales & Seaton ed.)),
the committee reported on the credentials of all the Members who had
appeared. The same course was pursued at the beginning of the Second
and Third Congresses, although the form of the above resolution,
specifically stating the duties of the Elections Committee, dates from
the first session of the Third Congress. (Journal, first session Third
Congress, p. 5 (Gales & Seaton).) The oath was administered, in
ordinary cases, without waiting for the committee's report. The custom
existed as late as January 3, 1820. (Journal, first session Sixteenth
Congress, p. 96.)
Sec. 569
569. The prima facie election case of Doty and Jones, from Wisconsin
Territory, in the Twenty-fifth Congress.
A person appearing with credentials intended to entitle him to a seat
already occupied, the House declined to seat him at once and referred
the credentials.
On December 3, 1838,\1\ at the beginning of the third session of the
Congress, the Delegate from Wisconsin, ``George W. Jones, appeared and
took his seat,'' in the language of the Journal. Mr. Jones had also
been in attendance and held the position of Delegate from Wisconsin at
the preceding session.
After the roll had been called by States to ascertain the presence of
a quorum, and after the new Members had been sworn in, Mr. Isaac E.
Crary, of Michigan, informed the House that James Duane Doty was in
attendance, and claimed to be sworn in as the Delegate in this House
from the Territory of Wisconsin. At the same time Mr. Crary presented
the credentials of Mr. Doty, which were read at the Clerk's table. And
thereupon Mr. Crary moved that the said James D. Doty be qualified
accordingly.
Objection being made by Mr. George W. Jones, who claimed to be the
sitting Delegate from the Territory of Wisconsin, a motion was made by
Mr. Charles F. Mercer, of Virginia, that the subject of the right to a
seat in this House as the Delegate from the Territory of Wisconsin be
postponed until Thursday next. This motion was agreed to.
On December 10 the subject was referred to the Committee of
Elections.
570. A claimant presenting credentials for a seat occupied by a
Member already sworn in, they were referred to a committee but were not
acted on.
On December 3, 1872,\2\ Mr. Samuel J. Randall, of Pennsylvania,
presented credentials of Mr. Aleck Boarman as Representative-elect from
the Fourth district of Louisiana, to fill a vacancy caused by the death
of Mr. James McCleary. The credentials being in regular form, and there
being no objection, Mr. Boarman was sworn in.
On December 4 \3\ the Speaker announced that he had what purported to
be credentials of Mr. Harry Lott for the seat. The paper was referred
to the Committee of Elections.
On December 19 \4\ other credentials for Mr. Lott were similarly
referred.
Mr. Lott's case did not come to a decision.\5\
571. The prima facie election case of Samuel Dibble, of South
Carolina, in the Forty-seventh Congress.
The House gave prima facie effect to regular credentials, although a
contestant claimed the seat made vacant by death of the bearer's
predecessor.
Form of credentials given to a Member-elect chosen to fill a vacancy
caused by death.
-----------------------------------------------------------------------
\1\ Third session Twenty-fifth Congress, Journal, pp. 7, 46; Globe,
p. 1.
\2\ Third session Forty-second Congress; Globe, p. 14.
\3\ Globe, p. 26.
\4\ Globe, p. 315.
\5\ Globe, p. 1646.
Sec. 571
On December 5, 1881,\1\ at the time of the organization of the House,
and while the Speaker was administering the oath to the Members-elect,
Mr. Samuel Dibble, of South Carolina, was challenged and stood aside.
After the unchallenged Members had taken the oath Mr. Dibble's
certificate was presented, as follows:
The State of South Carolina, by His Excellency Johnson Hagood, the
governor of the State of South Carolina, to the honorable the House of
Representatives of the United States of America, Forty-seventh
Congress:
Whereas a vacancy in the representation from the State of South
Carolina of the Second Congressional district thereof, composed of the
counties of Charleston, Clarendon, and Orangeburgh, happened by the
death, on April 26, A. D. 1881, of Michael P. O'Connor, who, at the
general election held November 2, A. D. 1880, was chosen a Member of
the said House of Representatives for said Congressional district; and
Whereas, in accordance with the Constitution of the United States, I,
on May 23, A. D. 1881, issued a writ of election appointing an election
to be holden on June 9, A. D. 1881, to fill such vacancy; and
Whereas the returns show that such election was duly holden, and that
at said election Samuel Dibble received the greatest number of votes
given at said election:
Now, therefore, I do hereby certify that the said Samuel Dibble has
been duly elected a Member of the House of Representatives of the
United States of America, Forty-seventh Congress, for the Second
Congressional district of the State of South Carolina, composed of the
counties of Charleston, Clarendon, and Orangeburgh, to fill the vacancy
in the representation from said State of South Carolina of the Second
Congressional district thereof, occasioned by the death of said Michael
P. O'Connor.
Given under my hand and the great seal of the State of South
Carolina, in Columbia, this twenty-second day of June, in the year of
our Lord 1881, and in the one hundredth and fifth year of the
sovereignty and independence of the United States of America.
[Seal.]
Johnson Hagood, Governor.
By the governor:
R. M. Sims, Secretary of State.
Mr. William H. Calkins, of Indiana, after stating that there had been
a contest over the seat of Mr. O'Connor, of which as a court the House
were bound to take notice, and which contest had not been disposed of,
raised a question as to the right of Mr. Dibble to be sworn in on his
prima facie case, the said question being stated in the following
preamble and resolution:
Whereas on the 2d day of November, 1880, in conformity to law, an
election was held in the Second Congressional district of the State of
South Carolina for Representative in the Forty-seventh Congress of the
United States, at which election there were two candidates, namely,
Hon. M. P. O'Connor and Ron. E. W. M. Mackey, voted for; that as a
result of said election a certificate was issued to Hon. M. P. O'Connor
by the secretary of state, bearing the seal of said State, and which is
now on file with the clerk of this House; and
Whereas Hon. E. W. M. Mackey, in conformity with law, served upon
Ron. M. P. O'Connor notice of contest, to which the said O'Connor filed
his answer; and in pursuance thereof testimony was taken and filed with
the Clerk of this House, which still remains in his custody; that
during the pendency of said contest, and before this House could
determine it, on the 26th day of April, 1881, Ron. M. P. O'Connor died,
and on the 23d day of May, 1881, the governor of the State of South
Carolina issued his writ of election to fill the supposed vacancy
caused by the death of Hon. M. P. O'Connor; that as a result of said
special election the governor and secretary of state of said State
issued to Hon. Samuel Dibble a certificate of election to fill said
vacancy, under which he now claims a seat on this floor: Now,
therefore,
Be it resolved, That the certificate of election presented by the
Hon. Samuel Dibble, together with the memorial and protest and all
other papers and testimony taken in the case of the contest of E. W. M.
Mackey against M. P. O'Connor now on file with the Clerk of this House,
be, and the same hereby are, referred to the Committee on Elections,
when appointed, with instructions to report it at as early a day as
practicable, either as to the prima facie right or the final right of
said claimants to the seat as the committee shall deem proper, and that
neither claimant shall be sworn in till the committee report.
-----------------------------------------------------------------------
\1\ First session Forty-seventh Congress, Journal, p. 12; Record, pp.
14, 15.
Sec. 572
After debate, the House voted, without division, to lay the preamble
and resolution on the table.
Mr. Dibble thereupon appeared and took the oath.
572. The prima facie election case relating to Newton and Yell, of
Arkansas, in the Twenty-ninth Congress.
The House seated a person bearing regular credentials on ascertaining
that his predecessor in the same Congress had accepted a military
office.
On February 6, 1847,\1\ Thomas W. Newton appeared at the bar of the
House, presented his credentials as a Representative in the Twenty-
ninth Congress from the State of Arkansas, in place of Archibald Yell,
and asked that the oath to support the Constitution of the United
States might be administered to him and he be permitted to take his
seat in the House.
Mr. George W. Jones, of Tennessee, having asked if there was any
evidence before the House that Mr. Yell had resigned his seat, and none
being produced, offered this resolution:
Resolved, That Thomas W. Newton, having presented credentials of his
election as a Member of this House from the State of Arkansas, and the
House having received no information of the death, resignation, or
disqualification of Archibald Yell, heretofore elected and qualified a
Member of the Twenty-ninth Congress, the said credentials be referred
to the Committee of Elections, and that the said committee report
thereon at the earliest practicable day.
Mr. William P. Thomasson, of Kentucky, moved the following amendment
in the nature of a substitute:
That Thomas W. Newton, who now presents his credentials of election
as a Member of Congress from the State of Arkansas, be sworn as a
Member and take his seat; and that the credentials of his election be
referred to the Committee of Elections.
In the course of the debate it was shown that the certificate of
election simply showed that Mr. Newton had been chosen to fill the
unexpired term of Mr. Yell. It also appeared, from an official
communication to the House from the War Department, that Archibald Yell
had received a commission and been mustered into the service of the
United States.
The amendment proposed by Mr. Thomasson was agreed to, and the
resolution as amended was also agreed to.
573. The Senate election case of Shoup and McConnell, from Idaho, in
the Fifty-first Congress.
There being a question as to the vacancy to be filled, the Senate
examined the case before administering the oath to a bearer of regular
credentials.
Credentials signed by a governor certifying to his own election as
Senator were received by the Senate without question.
A question in the Senate as to whether or not credentials should set
forth at length the proceedings of the electing legislature.
On December 29, 1890,\2\ the Vice-President laid before the Senate a
communi-
-----------------------------------------------------------------------
\1\ Second session Twenty-ninth Congress, Journal, pp. 305, 306;
Globe, pp. 339-341.
\2\ Second session Fifty-first Congress, Record, pp. 843-848.
Sec. 574
cation from the governor of Idaho, transmitting a certified copy of the
proceedings of the joint session of the legislature of Idaho for the
election of United States Senators, at Boise City, Idaho, December 18,
1890.
Ordered, That it lie on the table.
The Vice-President laid before the Senate the credentials of George
L. Shoup and the credentials of William J. McConnell, elected Senators
by the legislature of the State of Idaho; which were read.
These credentials were regular in form; but there was one
peculiarity. The credentials of George L. Shoup as Senator were signed
by ``George L. Shoup, governor.'' No question was raised, however, as
to the right of a governor to certify to his own election as Senator.
Some question arose as to the failure of the credentials to set forth
at length the procedure of the legislature in joint convention; but it
was acknowledged that in many credentials this recitation at length was
admitted. Moreover, in this case a certified transcript had been sent
as a separate paper.
Mr. Shoup was sworn in without objection.
Then Mr. Z. B. Vance, of North Carolina, moved to refer the
credentials to the Committee on Privileges and Elections.
The debate showed that the State of Idaho had been recently admitted
to the Senate, and that three Senators had been elected, one to take
the vacancy that seemed inevitable after March 3, 1891, under the
Constitution and the practice of the Senate as to assignment of
Senators to classes.
Mr. McConnell, whose credentials had been presented this day, had
been chosen for the immediate vacancy, however, and it was urged that
his right to be sworn in, had he been present, was perfect.
On the other hand, it was argued that the State of Idaho could not
assume what action the Senate would take as to its classes. Therefore
the motion to refer was justified.
A motion by Mr. George F. Hoar, of Massachusetts, that the motion to
refer lie on the table, developed yeas 22, nays 15--not a quorum.
Later, a quorum being present, Mr. Hoar withdrew his motion and the
credentials were referred.
On January 5 \1\ Mr. Hoar, from the committee, submitted this report:
That the said credentials constitute a sufficient certificate of the
executive of the State under the seal thereof, properly countersigned
by the secretary of said State, and certifying the election of Mr.
Shoup and Mr. McConnell, respectively, as Senators from that State. Mr.
Shoup has already been admitted to take the oath and has taken his
seat.
The committee therefore are of the opinion that Mr. McConnell should
likewise be admitted to take the oath as Senator, and that said
credentials should be placed on file.
The credentials were accordingly placed on file, when Mr. McConnell
appeared, and the oath prescribed by law having been administered to
him by the Vice-President, he took his seat in the Senate.
574. The New York election case of Noyes v. Rockwell in the Fifty-
second Congress.
The Elections Committee having ascertained that contestant rightfully
was entitled to prima facie title, the burden of proof was shifted to
sitting Member.
-----------------------------------------------------------------------
\1\ Record, p. 906; Senate Report No. 1904.
Sec. 574
Decision of highest court of a State on construction of a State
statute should be binding on the House.
A State court decision that the formal returns of election officers
should prevail over accompanying memoranda on sample ballots
transmitted in accordance with law.
On April 2, 1892,\1\ Mr. Charles T. O'Ferrall, of Virginia, from the
Committee on Elections, presented the report of the majority of the
committee \2\ in the New York case of Noyes v. Rockwell.\3\ At the
outset the committee considered a question as to the prima facie right,
although sitting Member had the State certificate and had taken the
seat. This question is explained in the report:
The election statute of New York provides that immediately after the
closing of the polls the inspectors of election shall count the ballots
and publicly proclaim the result of their count before they adjourn.
They shall also make three written statements showing the result, and
these statements they must complete and sign immediately after
announcing the result.
``The policy of the law is to make final the action of the board at
its meeting immediately following the closing of the polls. (34 N. Y.
State Rep., 127.)
``The law contemplates that the duties of inspectors shall in these
respects be as promptly performed as possible; for this purpose, among
others, that the result may be determined and declared without any bias
arising from the knowledge of its effect upon the aggregate result or
from exposure to subsequent influences. (46 Hun, 390.)''
The statute also requires the inspectors of election to attach to
these statements already mentioned sample copies of the various ballots
cast and to write upon each the number received, like the sample. One
copy of these statements the inspectors are directed to hand to the
supervisor, or town or ward official, who is ex officio a member of the
county board of canvassers; to file another with the county clerk of
the county, who is ex officio secretary of the county board aforesaid,
and to file the third copy with the town or city clerk, as a local
record of the election.
When the county board of canvassers of the county of Chemung convened
they found a discrepancy between the statements made in accordance with
the result publicly proclaimed, completed, and signed on the night of
the election and the writing or indorsements on the sample ballots
attached in six districts of four wards in the city of Elmira, in the
county of Chemung.
The statements indicated the following result: Noyes, 488 votes;
Rockwell, 458 votes; majority for Noyes, 30 votes.
The writing or indorsements on the sample ballots gave Noyes 466
votes, Rockwell 481; majority for Rockwell, 15 votes.
A discrepancy between the statements and sample-ballots indorsements,
it will be observed, of 45 votes.
The manner in which this discrepancy occurred will be shown hereafter
under the heading of ``Recount.'' Suffice it to say here that the board
of county canvassers of Chemung County discarded the statements
completed and signed on the night of the election, which corresponded
with the publicly declared result, which gave Noyes 30 majority, and
adopted the figures as shown by the indorsements on the sample ballots
attached, which gave Rockwell 15 majority, and certified the same to
the board of State canvassers.
On application of Mr. Noyes, Justice Smith, of the supreme court,
issued a peremptory mandamus directing the board of canvassers of
Chemung County to recanvass the returns. and base the new canvass on
the face of the returns instead
-----------------------------------------------------------------------
\1\ First session Fifty-second Congress, House Report No. 968;
Rowell's Digest, p. 474; Stofer's Digest, p. 25; Journal, pp. 152, 154-
156; Record, pp. 3421, 3448, 3489, 3536-3541, Appendix, pp. 234, 244.
\2\ The minority views were signed by Messrs. James E. Cobb, of
Alabama, and E. P. Gillespie, of Pennsylvania.
\3\ It may be observed that the sitting Member belonged to the
majority party in the House, and the Committee on Elections proposed to
unseat him and seat a Member of the minority party.
Sec. 575
of on the ballots. This mandamus was issued December 2, 1890, the
election having been held on the 4th of the preceding November. An
appeal was had to a general term of the supreme court, and on February
3, 1891, that court affirmed and sustained the order of Judge Smith.
Thereupon Mr. Rockwell appealed to the court of appeals, the highest
judicial tribunal in the State. On June 5, 1891, the court of appeals
affirmed the decision of the lower court. The report of the committee
says in regard to this decision and its consequences:
Justice O'Brien, of this court, in delivering the opinion of the
court, concurred in by the other eight justices, except Ruger, chief
justice, who did not vote, and Earl, who dissented, used this language:
``The words written into the paper by the inspectors must be deemed
to express the actual and correct result of their count. They are
precise and certain, and to the effect that a certain number of votes
were given for a person therein named for a designated office. Not so
with the writing on the ballot. That imports simply that a certain
number of tickets of each variety were voted, from which and from an
inspection of the sample ballots themselves the actual vote for any
given candidate may or may not be accurately ascertained. * * * The act
of the inspectors in stating the vote in the body of the paper, the
certificate that the same is correct, and the signature of each of them
to the certificate, is, so far as the county canvassers are concerned,
fundamental, jurisdictional, and controlling, while the words on the
ballot are subordinate and incidental, and the duty of the inspectors
in respect to the same is probably directory merely.'' (Record, 181.)
Pending these proceedings in the courts, but after the decision of
the supreme court in special session, to wit, on the 5th day of
December, 1890, the State board of canvassers met, counted the figures
as indorsed on the sample ballots, and not as shown by the statements
of the officers of election, and awarded the certificate of election to
Rockwell, and under and by virtue of it he now holds his seat.
Your committee are of the opinion that the decision of the court of
last resort of a State upon the construction of a statute of that
State, and in a matter before them involving the construction of a
statute of that State, should be binding upon them, and therefore they
held that under the decision of the said, court of appeals, affirming
the lower court, Noyes was prima facie elected and was entitled to and
ought to have been awarded the certificate of election, and that the
burden of proof was shifted from Noyes to Rockwell, and it was
incumbent upon him (Rockwell) to establish his title to the seat upon
the full merits of the case.
The minority do not appear to have dissented from this conclusion,
and both in their report and in the debate the differences of opinion
were as to the final and not the prima facie right.
575. The case of Noyes v. Rockwell, continued.
Discussion of validity of a recount after the time when, by the terms
of the law, the ballots should have been destroyed.
Registry of voters being required, the vote of a person not
registered or on the registry list was rejected by the House.
The votes of persons proven to have been corrupted by bribery are
rejected by the House.
A ballot accidentally placed in the wrong box should be counted.
Errors in initials or spelling of a candidate's name do not
ordinarily justify rejection of the votes.
As to the final right, the majority consider--
1. The effect of a recount of the ballots in the six districts of
Elmira, saying:
The statute of the State of New York does not provide for or
authorize a recount of ballots in any election, but in terms renders a
recount in law impossible by requiring all the ballots except those
Sec. 575
attached as sample copies to be destroyed immediately after the
completion of the count by the inspectors; and the ballots in these
districts, in the language of the court of appeals, were, in
contemplation of law, destroyed. They had no legal existence after the
board of inspectors dissolved, the night of the election, and the board
itself was functus officio; there was no legal custodian nor depository
of the ballots; they were worthless as evidence.
But the ballots were not in fact destroyed, and a recount in whole or
part was afterwards made by a portion of the election officers only,
and a gain was found for sitting Member. But the majority find from the
evidence that the ballots had not been safely kept.
There was no safeguard whatever thrown around them; they were in the
custody of no one upon whom any responsibility rested; there was no
care taken of them with a view to a possible recount; they were left
exposed in every instance so that they could have been despoiled by the
unscrupulous without fear of punishment, for they were in law as mere
worthless paper. Full and ample opportunity was given to tamper with
them and to change them.
Therefore, even if a recount were legal, no confidence could be
placed in this recount, as there were abundant authorities to prove--
To recognize this recount would be in direct violation of every rule
and precedent and convert a serious matter into a most ridiculous
burlesque. It would, if the precedent should be followed, throw down
the bars in every close contest, lead to frauds innumerable, and invite
attacks without number upon the official returns of sworn officers of
the law, and by boards composed of friends of each of the competing
candidates, and destroy the verity of official returns.
The minority in their report ignore this recount, and in the debate
Mr. Cobb declined to lay any stress on it, and although he intimated
that he thought it more reliable than the first count,\1\ it can hardly
be said that the minority antagonized this position of the majority.
2. As to an unregistered vote the majority say:
We find that 1 vote was cast for Noyes by a party (Lewis Beach) who
was not registered and whose name was not upon the registry list of
voters in the district in which he voted, as required by law.
We think this vote should be deducted from Noyes.
The minority concur in this.
3. As to bribed voters:
We find two parties, Sheridan and Green, who voted for Noyes, were
each paid $2 to vote the Republican ticket.
These votes should be taken from Noyes.
The minority concur in this, and would add one other to the number
rejected. Mr. Nils P. Haugen, of Wisconsin, who concurred generally
with the majority, dissented, holding that nothing in the evidence
showed that either Sheridan or Green voted for Noyes or the Republican
ticket.
4. As to a ballot in the wrong box:
It is claimed that Rockwell lost 1 vote, cast by Patrick McDermott,
by the ballot being put accidentally in the wrong box by the inspector
of election who received it.
The evidence is conflicting, but we think the vote should be added to
Rockwell's column.
The minority concur in this.
-----------------------------------------------------------------------
\1\ Appendix, p. 245.
Sec. 576
5. As to ballots improperly rejected:
In Chemung County there were 3 ballots cast for Hosea Rockwell, 4 for
H. H. Rockwell, 1 for Hosey Rockwell, and 1 for H. Rockwell, making 9,
which were rejected by the canvassing board; we think they should be
counted for the contestee.
In the same county there was I ballot cast for H. Noyes and 1 for
Henry T. Nois, and in Tomkins County 1 for Henry Noyes, making 3 which
were rejected by the canvassing board. We think they should be counted
for the contestant.
The minority concur in this.
576. The case of Noyes v. Rockwell, continued.
Where the law prescribes a penalty for putting a distinguishing mark
on a ballot, but does not require rejection, should the ballot be
rejected?
One of a series of ballots with similar distinguishing marks being
shown to be corrupt, the House, overruling its committee, inferred
corruption as to all.
The law forbidding a voter to reenter the polling booth, may one who
failed in attempting to vote, return to effect the object?
Instance wherein the Elections Committee recommended seating of a
contestant of minority party; but were overruled by the House.
6. The real turning point of the case, as appears evident from the
debate,\1\ was as to an alleged conspiracy to bribe, thus set forth in
the minority views:
But the chief contention in this case is in regard to what are known
as Doyle ballots. These were sixteen in number, and were Republican
pasters containing the name of the contestant for Congress.
At the election under examination Hon. Robert Earl was the candidate
for judge of the court of appeals. His name was on all the printed
tickets of the Democratic and Republican parties, and was the first
name on each ticket.
On the sixteen tickets above mentioned the name of Robert Earl was
erased and the name of Doyle was substituted in this manner: On one
ticket was the name A. Doyle; on another ticket B. Doyle; on another,
C. Doyle, and so on through the series. No two tickets contained the
same initial letter, except the name L. Doyle, which appeared on one
ballot at two separate voting places. These several names, A. Doyle, B.
Doyle, etc., were all written in pencil, and were all written, as the
evidence clearly shows, by one Duncan McArthur. They were cast in the
fourth and fifth districts of Waterloo. It is in proof that Duncan
McArthur was an active worker for the contestant, and the proof tends
to show that he was operating on the day of election with one Andrew
Harmon and one B. H. Mongin. The three are shown to have been engaged
in bribing voters. It is further shown by the evidence of one man who
voted a Doyle paster that he was bribed.
It is contended that the taint of fraud can not attach to the whole
Doyle series of votes without more convincing evidence than is to be
found in the record.
Let it be remembered that fraud can rarely, if ever, be proved by
direct evidence, and that the rule is that whenever a sufficient number
of independent circumstances which point to its existence are clearly
established, a prima facie case of its existence is made, and that if
this case is not met by explanation or contradiction it becomes
conclusive.
The circumstances, then, which are established in this contest and
which strongly point to the guilt of the whole sixteen voters using the
Doyle ballots are:
(1) The Doyle ballots were pasters which had been written on. This is
contrary to law. (See section 676, Election Code of New York).
-----------------------------------------------------------------------
\1\ Mr. Cobb in debate set up an independent line of argument, which
he did not mention in his report, wherein he claimed that the testimony
showed the election of sitting Member irrespective of the so-called
Doyle ballots. This argument, which will be considered, hardly
displaced the Doyle ballots as the main issue.
Sec. 576
(2) They were so marked as to be identified. This was contrary to
law, and such marking subjected the persons engaged therein to
punishment on conviction. (Sec. 686, ib.)
(3) The ballots were prepared, all of them, by Duncan McArthur before
they were given to the voters, and Duncan McArthur was a briber of
voters.
(4) One voter at least, and, as we believe, two, Ferris and Green,
were bribed to cast Doyle ballots.
(5) The name Doyle was fictitious.
These facts we believe to be clearly proven.
From them it is clear that McArthur and his abettors were guilty of
gross fraud. Did the sixteen voters participate in the fraud?
If not, why did they vote for a fictitious person for judge of the
court of appeals? What explanation can be given for the use of a series
of fictitious names--no two of them alike?
How is it that these ballots were so marked as to be identified
easily? Was it a coincidence merely? If so, it could have been
explained. It seems to us that these circumstances connect the whole
series of Doyle ballots and make a prima facie case at the least.
Explanations were in order. It was imperatively demanded of the parties
implicated. They were accessible; they were not called.
The minority further contended that the ballots might be excluded if
the marks were put on for purpose of identification, since the law of
New York forbade the voter, under penalty of punishment, to put on his
ballot a mark by which it could be identified. ``It is a familiar
principle of law,'' says the minority, ``that when a person does an act
for the doing of which he may be punished, the act is void whether it
is in terms declared so or not.''
The majority of the committee do not consider the evidence strong
enough to establish the fact that even one voter was bribed to throw a
Doyle ticket, although the testimony of Ollie Ferris might raise a
suspicion as to himself. Assuming that Ferris's testimony did show that
he was bribed, the majority do not admit any significance as to others:
The syllogism is this: A voted a Doyle ballot and admits he was
bribed; B, C, D, and others voted Doyle ballots; therefore they were
bribed.
Everything must be presumed against innocence. All these men must be
presumed to be guilty because one man who voted the same ballot they
did says he was bribed, and the curse of bribery must rest on them.
If it should be insisted that McArthur and Harmon were engaged in the
business of bribing voters, and that this one man (Ferris), who voted
one of the Doyle series of ballots, was bribed, therefore all that
voted that series were bribed, why not carry the reasoning further and
say that McArthur and Harmon were engaged in the business of buying
votes, and that two men, Sheridan and Green, voted Republican ballots
and were bribed; therefore all that voted the Republican series of
ballots were bribed? There is as much reason, it seems to us, in one
position as the other.
Suppose it was ascertained that E F voted one of these sixteen Doyle
ballots, would any intelligent man hold that he could be indicted and
put upon his trial for bribery upon the facts developed in this case?
Would any man with ordinary powers to discriminate between right and
wrong hold that a grand jury could find an indictment against E F for
bribery upon the evidence in the record of this case? Would he even
hold that any justice of the peace could be found who would send E F on
to answer an indictment, on probable cause to charge him with bribery,
under the facts we have stated?
We have reached our conclusion in regard to these Doyle ballots from
the testimony in the record, and not upon presumptions or suspicions
which may come to any imaginative mind; but if we were to enter the
realm of presumptions we would prefer to presume that men are honest
until the contrary is proved; that they are innocent of crime until
they are proved to be guilty; if in a criminal case, to the exclusion
of every reasonable doubt; if in a civil case, at least by the
preponderance of evidence.
``Where the facts of a case are consistent both with honesty and
dishonesty a judicial tribunal will adopt the construction in favor of
innocence.'' (Lawson on Presumptive Evidence, 438.)
We hold that there is nothing to impeach these sixteen Doyle ballots
except the one cast by Ferris, and as to that we are in doubt whether
it should be excluded; but as it is not material it makes no
difference.
Sec. 576
The committee cite a decision, referred to as the Dutchess County
case, rendered by the New York court, in support of this doctrine.
In debate\1\ the majority combated vigorously the proposition laid
down in the minority views that a ballot marked by the voter by a
distinguishing mark was thereby rendered void, Mr. O'Ferrall citing a
decision in New York State to the effect that while the statute forbade
the voter to put a distinguishing mark on it, the law did not go to the
extent of rendering the ballot void if he did.
7. A question also arose as to certain other ballots described in the
report.
In this connection we deem it proper to state that there were 28
ballots cast for Rockwell in the second district of the Fifth Ward of
Elmira, upon which there was a check mark on one corner and a figure 5
on some and a figure 8 on others in the corner ``diagonally opposite''
the corner in which the check mark appeared. It was claimed by Noyes
that these marked ballots were open to as much suspicion as the Doyle
ballots. Several witnesses introduced by Noyes to testify in regard to
them declined to answer the questions propounded under the advice of
the attorney for Rockwell, upon the ground that this was evidence which
should have been introduced in chief, and that as it was introduced in
the time for testimony in rebuttal it was not admissible.
A motion was made by the attorney for Rockwell to strike out this
evidence upon the grounds stated, but the committee took no direct
action upon the motion.
The minority urged that no effect should be given to these ballots,
because evidence as to them was taken in rebuttal, because no attempt
was made to show why the marks were put on them, and because no
reference was made to them in the notice of contest.
8. As a part of his argument before the House,\2\ but not as a part
of his minority views, Mr. Cobb urged that the record of testimony
showed the election of sitting Member independently of the Doyle
ballots:
(a) Because three voters who had left the polling place after trying
in vain to mail their ballots had returned and been denied an
opportunity to try again. The law provided that no one who had voted
should be permitted to reenter the booth; but Mr. Cobb contended that
this did not apply to one who had left the booth without voting. In
opposition it was contended that by leaving the booth they surrendered
the right to vote. The law provided that the voter should ``vote in the
manner provided by law, forthwith, before leaving the enclosed space.''
(b) Because in a precinct in the city of Elmira, where the
certificate of the election officers differed from the figures on the
ballot, and where there had been no recount, it was in evidence that
the figures on the ballots were the true count, thereby giving sitting
Member sufficient gain to secure his election. The majority did not
deem the evidence strong enough or the circumstances certain enough to
justify this conclusion.
The report was debated at length from the 19th to the 22nd of April,
1892. On the latter day a resolution proposed by the minority,
declaring contestant not elected, was agreed to as an amendment--yeas
140, nays 98. Then a resolution declaring sitting Member elected was
similarly adopted--yeas 128, nays 106. Then the proposition of the
majority as amended was stated to the House, and a motion to recommit
the case, with directions to take testimony as to the Doyle ballots and
the 28 Rockwell ballots irregularly marked, was made and decided in the
negative--yeas
-----------------------------------------------------------------------
\1\ Appendix, p. 238, Remarks of Mr. O'Ferrall.
\2\ Appendix, p. 247.
Sec. 577
110, nays 124. The resolutions of the majority as amended were then
agreed to without division.
So the contention of the majority of the committee was defeated, and
the sitting Member retained the seat.
577. The Maryland election case of Mudd v. Compton in the Fifty-first
Congress.
The acts of county canvassing officers being impeached, their returns
must be disregarded and the precinct returns should be consulted in
awarding prima facie title.
A county canvassing board having ministerial duties only are presumed
to act correctly, but this presumption may be rebutted at any time by
reference to precinct returns.
Ballots bearing only the last name of a candidate, or incorrect
initials, should be counted when it is shown that no other person of
the name is a candidate.
Under the old ballot laws the appearance of a candidate's name twice
on the ballot did not prevent counting it as one vote.
It was held under the old ballot laws that a State statute as to form
of ballot should not be considered mandatory so as to cause rejection
of a vote wherein the intention of the voter is manifest.
A question as to how far the House, in counting votes, is bound by
the requirements of the State law.
It was held under the old ballot laws that a ``paster'' which covered
the designation of the office should not work rejection of the vote,
although a State law so provided.
On February 27, 1890,\1\ Mr. William C. Cooper, of Ohio, submitted
the report of the majority of the Committee on Elections in the
Maryland case of Mudd v. Compton.
The sitting Member had been returned by an official majority of 29
votes, which contestant assailed on the ground of irregularities and
intimidation.
The examination of this case is naturally divided into three
branches:
(1) As to the prima facie right.
The majority report quotes from the law of Maryland to show how the
votes were canvassed and the returns made up. The canvassing board of
each county made two certificates, one ``to be delivered to the clerk
of the county court for the county and the other to be mailed to the
governor.'' The governor then issues a certificate to the person who,
from the returns so sent to him, appears to have been elected. The
report then says:
According to the law of Maryland, the duties of the presiding judges
when assembled at the county seat are purely ministerial. They are to
add up the votes of the precinct returns on the books of the polls and
to certify the results of this addition to the governor. They can
neither throw out votes certified by the precinct judges nor return
votes not certified by the precinct judges. It is presumed, of course,
that the presiding judges will do their work accurately, and that their
returns to the governor will contain a correct summary of the votes in
their county. This presumption is, however, merely a prima facie one,
and can be rebutted at any time by showing that these returns were, in
fact, not a correct summary of the pre
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, House Report No. 488; Rowell,
p. 149.
Sec. 577
cinct returns; and when this is done the returns to the governor must
be disregarded and resort had to the primary evidence of the result of
the election; that is, to the precinct returns themselves.
In this case the returns forwarded to the governor footed up for
Barnes Compton 16,000 votes; for Compton, 1 vote; for Sydney E. Mudd,
15,819 votes; for S. N. Mudd, 1 vote. The contestant denies the
accuracy of said returns to the governor, and files duly certified
copies of the precinct returns from every precinct in the Congressional
district (record, pp. 712 to 779), which show that the vote in the
district for the contestant and the contestee was as follows:
For Sydney E. Mudd......................................... 516,279
For S. N. Mudd............................................. 1
For S. E. Mudd............................................. 1
For Mudd................................................... 1
``One ticket upon which Sydney E. Mudd's name appeared 1
twice and Mudd's name was not counted in the above
returns''.................................................
------------
Total................................................ 16,283
For Barnes Compton......................................... 16,280
------------
Plurality for Sydney E. Mudd....................... 3
Comparing these precinct returns with the returns made to the
governor, it is found:
(1) That the returns to the governor from the counties of Howard,
Anne Arundel, and Baltimore, and from the city of Baltimore, were
accurate summaries of the precinct returns and were correct.
(2) That in the third district of St. Marys County there were
returned by the precinct judges 1 vote for ``S. E. Mudd,'' and 1 vote
for ``Mudd,'' but the presiding judges did not include these votes in
their return to the governor.
(3) That the returns from the fifth and ninth districts of Charles
County were not included in their returns to the governor, because at
the time the presiding judges made up their returns the returns from
these precincts were sealed up in the boxes which the presiding judges
had no authority to open.\1\ These boxes were afterwards opened by an
order of court, and certified copies of the returns found in them have
been filed, which show that the contestant received in these districts
432 votes and the contestee 280 votes.
(4) That the face of the precinct returns from the sixth district of
Charles County shows:
``There was one ticket upon which Sydney E. Mudd's name appeared
twice and Mudd's name was not counted in the above returns.''
(5) That in Calvert County the returns to the governor allow the
contestant 1,138 votes, whereas the actual vote cast and counted in
this county, and shown by the certified copies of the precinct returns
(record, pp. 746 to 749), was 1,166. Mr. Mudd called the return judges
of every precinct in the county (record, pp. 271-275), and proved by
them that the returns then on file in the clerk's office were the very
returns which they made and were in no way altered. He proved by the
editor of the Democratic paper in the county town that on the day the
returns were made up he copied them for his paper and that they gave
the contestant 1,166 votes. He proved by the clerk of the court that
immediately upon seeing it stated in the newspapers that the return to
the governor gave the contestant only 1,138 he wrote to the governor
stating that a mistake had been made and asking permission to correct
it. The deputy clerk of the court who made up the returns to the
governor swears himself that these returns so sent on by him were
erroneous and that those in the clerk's office were correct (see
record, pp. 271-275). If the precinct returns of any precinct had been
altered the contestee could have offered some evidence to show that
such alterations had taken place, but he did not, in fact, take any
testimony whatever upon the subject. The committee believe that the
contestee is simply trying to raise a technical point of evidence to
defeat the contestant's claim to 28 votes, which no one can seriously
doubt the contestant received, and that the contestant's vote in
Calvert County was 1,166.
(6) That in the precinct returns from Prince George County (record,
pp. 762-772) there was no mention of a vote for ``Compton,'' which the
presiding judges in their return to the governor say was cast in the
tenth district of the county, and consequently the presiding judges had
no right to include
-----------------------------------------------------------------------
\1\ These returns were put into the ballot box by mistake; when once
sealed the box might not be opened legally by the election officers.
Sec. 577
it in their return to the governor. The contestant has, however,
attempted to show that he was entitled to the vote, by offering in
evidence a certificate of the clerk of the court of the county (record,
p. 610), that on one of the tally lists of the district there appears,
``one ticket for Compton,' not counted for Barnes Compton;'' on the
other of said tally sheets, ``one ticket for Compton, torn, not counted
for Barnes Compton.'' There is no other evidence concerning this vote.
The tally lists are not a part of the certificate or statement from
which the law requires the presiding judges to make up their return;
and if they were, their contents are not sufficiently proved by a
certificate of the clerk that such and such a thing appears upon them.
Public officers prove public records, not by statements as to what
their contents are, but by certified copies of the documents
themselves. Moreover, it would seem, from statements quoted from one of
the tally lists referred to that the judges may have decided that the
voter intended to cancel his ticket as to candidate for Congress by
tearing it.
For these reasons the committee does not think it clear that the
contestee is by the evidence entitled to this vote, but thinking it
likely that such a vote may have been cast has concluded to allow it.
Upon the face of the returns the committee, therefore, finds that the
vote stood:
For Sydney E. Mudd............................................. 16,279
For S. E. Mudd................................................. 1
For S. N. Mudd................................................. 1
For Mudd....................................................... 1
One ticket on which Mudd's name appeared twice, not counted for 1
Mudd..........................................................
--------
16,283
For Barnes Compton.................................... 16,280
For Compton........................................... 1
---------
16,281
--------
Plurality for Sydney E. Mudd.................... ....... 2
There were no persons by the name of Mudd and Compton other than the
contestant and the contestee candidates for Congress at this election;
and, therefore, under the well-established rule of the House, the vote
for ``Compton,'' if counted at all, should be counted for the
contestee, and the votes for ``S. E. Mudd,'' for ``Mudd,'' and for ``S.
N. Mudd,'' for the contestant. It is well settled by the authorities
that the fact that the same candidate's name is on the same ticket more
than once is no reason why that ticket should not be counted as one
vote for that candidate. It would therefore follow that the contestant
is entitled to the one vote not counted for him, because his name is on
the ticket twice. The contestee has, however, offered evidence that
this ticket was not counted for the contestant, not because the name
was on the ticket twice, but because the paster (upon which his name
was printed) was pasted on the regular Republican ticket so as to cover
up the designation of the office for which he was a candidate. If this
be granted, it still remains true that whenever the intention of the
voter is clear and unmistakable, effect should be given to it; and no
one can have any doubt that the voter of this ticket--a straight
Republican ticket-intended to vote for Mr. Mudd for the only office for
which he was a candidate. No provision of a statute regulating the form
of ballots will be held, or was ever intended to be held, as mandatory
in contravention of such a plain and manifest intent. The committee is
therefore of the opinion that contestant is entitled to this vote, and
will count it.
The minority \1\ say on this point:
A paster was pasted over the words ``for Congress.'' The testimony of
the judges, Sasscer and Cox, clearly shows this (record, pp. 456-457).
Article 33, section 65, Statutes of Maryland (record, p. 639), required
the ticket should be thrown out.
In the debate it was asserted by Mr. John F. Lacey, of Iowa, that
although there might be a law of the State of Maryland, yet the House
was judge of the elections of its own Members, and the House had always
held that in such a case the vote should be counted.\2\ It was replied
by Mr. Moore that the law of Maryland was mandatory and that the
position of the majority was unprecedented.\3\
-----------------------------------------------------------------------
\1\ Minority views presented by Mr. L. W. Moore, of Texas.
\2\ Record, p. 2394.
\3\ Record, p. 2408.
Sec. 578
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES.
CREDENTIALS AND PRIMA FACIE TITLE.
578. The case of Mudd v. Compton, continued.
An instance wherein an Elections Committee, in a sustained case,
ascertained prima facie title after the sitting Member had taken the
seat.
The Elections Committee having ascertained that prima facie title
should have been awarded to contestant, the burden of proof was shifted
to sitting member.
The majority conclude on this branch of the case:
The face of the returns, then, in the opinion of the committee, show
that the contestant was entitled to 16,283 votes and the contestee to
16,281 votes, giving the contestant a plurality of 2 votes. Such being
the case, the burden of showing that these returns (the primary
evidence of the result of the election) were not correct is thrown on
the contestee.
579. The case of Mudd v. Compton, continued.
Qualified voters being denied the right to vote because other persons
had voted on their names, the House counted the votes for the candidate
for whom they were offered without deducting the illegal votes.
The House, relying somewhat on a Federal statute, counted ballots of
voters whose names after registration were omitted from the poll list,
that list being conclusive on the election officers.
While notice of contest should state specifically the points on which
testimony is adduced, yet the committee sometimes waives the strict
requirement of the rule.
Criticism of evidence introduced in rebuttal.
(2) As to certain disputed votes, questions arose:
(a) Six persons offered their votes for contestant and were refused
the right to vote by the judges, for the alleged reason that in each
case some one else had previously voted on the name. The majority ruled
that these votes should be cast for contestant, saying:
It is bad enough that a person who has no right to vote gets his vote
in; it would be worse if by getting his vote in he kept an honest man's
vote out.
The minority objected to this ruling, but the majority defended it in
the debate,\1\ where the subject was examined fully. It did not appear
that there was any evidence as to who voted wrongfully on the names or
for whom the illegal votes were cast. There would be a presumption, of
course, that they were cast for the candidate for whom the six real
voters would not have voted. But the majority of the committee simply
contented themselves with counting the six legal votes offered and
rejected.
(b) An important class of disputed votes is thus referred to by the
majority report:
A large number of votes on both sides were rejected because the
voters who had duly applied for registration and been registered found
their names omitted from or inaccurately copied on the poll books. It
is urged by the contestee that the law of Maryland makes the poll book
conclusive evidence of the right of a man to vote, and that these votes
can not be counted. The committee can not assent to this proposition.
-----------------------------------------------------------------------
\1\ Record, p. 2395.
Sec. 579
The law simply lays down a rule of evidence for the judges of
election, and is intended to reduce to a minimum their judicial
functions. Into the qualification of voters they can not inquire. All
they have the right to pass upon is the question whether or not a
person offering to vote is the person whose name is on the poll book.
This limitation is imposed upon them because, in the view of the
Maryland law, a polling window on election day is not a proper place to
investigate questions of qualification. A simple rule is laid down for
the guidance of the judges, and any injustice which may be done by the
application of this rule can, if necessary, be corrected by the
tribunal before which the contest is made. The class of cases about
which we have been speaking, together with another class represented by
a vote on each side in which the voter was improperly refused
registration, are the very sort of cases to provide clearly for which
the third section of the act of Congress of May 31, 1870, was enacted,
which section reads as follows:
``That whenever, by or under the authority of the constitution or
laws of any State or the laws of any Territory, any act is, or shall
be, required to be done by any citizen as a prerequisite to qualify or
entitle him to vote, the offer of any such citizen to perform the act
required to be done as aforesaid shall, if it fail to be carried into
execution by reason of the wrongful act or omission of the person or
officer charged with the duty of receiving or permitting such
performance or offer to perform or acting thereon, be deemed and held
as a performance in law of such act, and the person so offering and
failing as aforesaid, and being otherwise qualified, shall be entitled
to vote in the same manner and to the same extent as if he had
performed such act.''
The admission of such votes is in accord with the unvarying practice
of Congress and the almost uniform decisions of the courts, and the
committee will count all such votes properly proved on both sides.
The minority say:
The constitution of the State (article 1, section 1) prescribes the
qualifications of all voters. Section 5 of the same article provides
that the general assembly shall provide for a general registration of
all persons possessing the qualifications prescribed by the
constitution that the registration shall be conclusive evidence to the
judges of the right of the person to vote, and that no person shall
vote whose name does not so appear.
The legislature, in accordance with these provisions, have provided
for registration, and since the adoption of the constitution of 1864,
in which the same provisions appear, all elections have been held under
registration laws.
The judges of election are required to take an oath to ``permit all
persons to vote whose names shall appear on the registry or list of
voters furnished to him according to law,'' and that he ``will not
permit anyone to vote whose name shall not be found upon said registry
or list of voters.'' (Record, pp. 6, 36, sec. 48.)
The contestant in his brief relies upon the act of Congress of May
31, 1870. This act was declared unconstitutional by the Supreme Court.
(United States v. Reese, 92 U. S. Rep., p. 214.)
Over this point much discussion occurred in the House.\1\ On behalf
of the majority it was asserted that the law had been changed since the
decision of United States v. Reese, and that the constitutionality of
the law quoted in behalf of contestant was fully sustained by the
decision in United States v. Mumford (16 Federal Reporter). Also the
case of the United States v. Siebold was quoted.
(c) A question as to pleading is disposed of as follows by the
majority:
The contestee has offered to prove a number of votes lost by him
because of inaccuracies on the poll books, not otherwise referred to in
his answer than by an allegation that in a very large number of other
election districts he lost votes from this cause, and more votes from
such cause than the contestant.
The contestant objects to the admission of this testimony on the
ground that this general allegation does not, in the language of the
statute governing contested elections, state ``specifically the other
grounds'' upon which the sitting Member rests the validity of his
election; and the committee is inclined to agree with the contestant,
but as the committee in this case has no doubt that the contestee was
really
-----------------------------------------------------------------------
\1\ Record, pp. 2396, 2409, speeches of Messrs. Lacey and Dalzell.
Sec. 580
entitled to some of the votes of this class which he has proved, the
contestee will be allowed the votes he has proved he lost from
inaccuracies of the poll books, whether the loss of these votes was or
was not specifically alleged. The committee, however, on the same
principle, will allow the contestant the votes he proved in rebuttal of
the contestee's allegation in paragraph 9 of his answer, that the
contestee lost more votes than the contestant because of inaccuracies
on the poll books. In most cases the contestant proved how the person,
whose vote he claimed to have lost in this way, would have voted had
his vote been received, by the testimony of the voter himself.
The minority object, saying:
Not only did he not claim them in his notice, but he attempted in
violation of every principle of law to offer his testimony in the time
allowed him for rebuttal only.
This testimony was in each case specifically excepted to. (Pp. 493,
494, 556, 557.)
The attempt to make this claim in rebuttal comes directly within the
case of Lynch v. Vandiver (Mobley, p. 659), in which the committee say
that ``testimony offered in rebuttal which seeks to establish facts not
entered into in the direct examination, is in violation of every known
principle of the laws of evidence, and will not be considered.''
The contestee had no opportunity to show that these parties had not
tendered their votes, or any other evidence tending to deny the claim
made by contestant.
580. The case of Mudd v. Compton, continued.
Votes proven by merely showing the party affiliation of the voter
have been counted by the Elections Committee.
Discussion of the degree of intimidation justifying the House in
counting votes of persons prevented from reaching the ballot box.
The presence of armed and threatening persons at the polls, some
personating officers of the law, was held to constitute intimidation
justifying revision of the returns.
(d) As to determining how certain persons voted:
The contestee, in a much larger proportion of the votes he proved,
showed how they would have voted * * * by merely proving that the voter
was or had been a Democrat. The contestant objects to votes proved in
this last-mentioned way being counted, on the ground that as he
received a great many Democratic votes in the district, there is no
certainty that these voters wanted to vote for contestee. The
committee, however, has decided to allow the contestee these votes.
(e) The majority decide to recognize the validity of a recount in
certain precincts, by which sitting Member gained 19 votes, although
there seemed to be suspicious circumstances connected therewith.
(3) The majority of the committee decided as follows in regard to
charges of intimidation:
The committee finds that the votes of the first precinct of the third
district of Anne Arundel County should be thrown out. The vote, as
returned in this precinct, was 168 for the contestee and 32 for the
contestant. The undisputed facts concerning this precinct are that
there were registered therein 475 persons, 252 of whom were white and
223 colored; that of these 475 only 206 voted, and of those who voted
191 were white men, and 15 were colored; that when the polls opened 4
white men voted, then 15 colored men, and then 187 white men. The
contestant has examined 175 colored voters of this district who did not
vote; of these 175, 161 were on the polling ground; many of these
walked or rode many miles to the polls, and some who were temporarily
away from home returned from Baltimore, Annapolis, Steelton, and other
places to vote. All of these men swear that they wanted to vote (and
most of them were at the polls with their tickets in their hands for
the purpose of voting) for the contestant; 14 others swear that they
started from their homes and walked a greater or less distance toward
the polls and then turned back in consequence of what they heard as to
the proceedings at the polls.
There is no dispute that there were present at the polling place,
from before the opening of the polls at 8 o'clock in the morning until
late in the afternoon, a number of persons who were not residents
Sec. 580
of the precinct; that those of them who were identified were residents
and registered voters of Baltimore City, and that they drove down from
Baltimore, reaching the polls before any of the voters, and drove back
in the late afternoon; that those men, or some of them, wore badges
with the words ``U. S. deputy marshal'' upon them, and claimed to be
such; that this claim was altogether false; that these men were axmed
with pistols, which at certain periods of the day they were firing
within the hearing of the polling place; that there were a number of
guns in a wagon which brought them from Baltimore; that before the
polls opened they placed themselves within a few feet of the window at
which the citizens were to vote, and that in a very few minutes after
the polls opened they seized and dragged from the line two or more
colored voters (among them a man of some 70 years of age, a large
property owner and tax payer, a resident of the district for twenty-
five years, and a universally respected citizen) and told them that
they could not vote. The person just referred to (who from age and
standing was evidently the most influential colored man present) asked
if the colored people were not to be allowed to vote, when the crowd
from Baltimore answered, ``Not a damn nigger shall vote unless he votes
for Cleveland.'' The old colored leader then told the other colored men
not to make a fuss, but as they could not vote to go away peaceably. A
number of them did, but the larger number remained about the polling
place for some time longer and occasionally one of them would attempt
to reach the polling place.
In every such instance they were met by some one of the strangers or
by one of the well-known Democratic leaders of the precinct and told
that they could not vote; and when they still pressed on, they were
struck at and compelled to fall back. A number of colored voters still
remained in the neighborhood of the polls, and, in order to get them
away, the leader of the Baltimore gang--a man whom the witnesses all
call ``Tip Wells,'' but whose real name is proved to be John H. Wills--
told a man named Ed. Pumphrey, a resident of the neighborhood, to go
among the negroes, tell them that there was a gang of roughs from
Baltimore there, that they had guns, and that more were coming down
from Baltimore in the next train, and that they would have to fight
these armed men if they wanted to vote. Pumphrey went down to where the
negroes were, moved around among them, telling them what Wells directed
him to tell, and adding that he was a deputy sheriff, that he could not
protect them, and if they took his advice they would go home. He then
came back and reported to those who sent him what he had done. Fifty or
more of the colored voters testified that they heard Pumphrey telling
them to go home; that there was a wagon load of roughs there with guns,
and that more were coming, etc.
After commenting on the fact that the leaders in the intimidation
were not called to rebut the charges, the majority say:
The contestee claims that if this were all so, the negroes had
physical force enough to have voted if they had persisted in doing so.
The committee holds that a citizen has a right to a free and unmolested
approach to the ballot box and is not bound to fight his way to a
polling window, especially when to do so he must come into conflict
with persons who claim to be officers of the law, the truthfulness of
which claims he has no means of negativing, and that a candidate, whose
supporters have done all in their power to make voters believe that
they would suffer injury if they attempted to vote, can not be heard to
say that the intimidated voters should not have believed the threats
made to them. * * * The contestant proves that he lost at least 175
votes as a result of this intimidation.
The minority, after examining the testimony, concluded that the
disorder was not sufficient to have intimidated a man of ordinary
firmness.
As a result of their reasoning the majority found a plurality of 154
votes for the contestant, and recommended the following:
Resolved, That Barnes Compton was not elected as a Representative to
the Fifty-first Congress from the Fifth district of Maryland and is not
entitled to the seat.
Resolved, That Sydney E. Mudd was duly elected as a Representative
for the Fifth Congressional district of Maryland to the Fifty-first
Congress and is entitled to his seat as such.
The minority dissented from this conclusion and recommended:
Resolved, That S. E. Mudd was not elected as a Representative to the
Fifty-first Congress from the Fifth Congressional district of Maryland.
Resolved, That Barnes Compton was duly elected and is entitled to
retain his seat.
Sec. 581
The report was debated at length on March 19 and 20, 1890;\1\ and on
the latter day the question was taken on a motion to substitute the
minority for the majority resolutions. This motion was disagreed to,
yeas 145, nays 155. Then the resolutions of the majority were agreed
to, yeas 159, nays; 145. Thereupon Mr. Mudd appeared and took the oath.
581. The West Virginia election case of Smith v. Jackson in the
Fifty-first Congress.
A board of county canvassers, legally competent to recount, may make
such recount even after it has certified and forwarded the result of
the first count.
A county court charged by law with the duty of canvassing precinct
returns may correct its returns by a supplemental certificate, which
should be taken into account by the governor in issuing credentials.
On January 23, 1890,\2\ Mr. John Dalzell, of Pennsylvania, presented
the report of the majority of the Committee on Elections in the West
Virginia case of Smith v. Jackson.
The governor had issued a certificate to sitting Member on finding a
plurality for him of 3 votes. Contestant claimed that the true vote as
shown by the returns of highest authority gave to himself a plurality
of 12 votes.
Two questions therefore arose: One as to the prima facie right and
another as to the final right.
(1) As to the prima facie right. Two leading questions were discussed
in this branch of the case.
(a) The report says:
Under the laws of West Virginia (Code, sec. 22, ch. 3) it is made the
duty of the commissioners of the county courts in each Congressional
district to transmit to the governor a certificate of the result of the
election within their respective counties, ``and in the said
certificate shall be set forth, according to the truth, the full name
of every person voted for, and in words at length the number of votes
he received for any office.''
The commissioners of Ritchie County sent two certificates, the first
giving Smith a majority of 567 votes, and the second giving Smith a
majority of 570 votes, a difference of 3 votes favorable to contestant.
The report says:
The second certificate correctly represented the result of a recount
of the votes, made at the instance of the contestee. The governor
accepted the first and rejected the second certificate, and thus took
away from Smith 1 vote a-ad added to Jackson 2 votes.
The law of West Virginia with respect to a count and recount of
returns is as follows (Code, sec. 21, ch. 3):
``The commissioners of the county court shall convene in special
session at the court-house on the fifth day (Sundays excepted) after
every election held in their county, or in any district thereof, and
the officers in whose custody the ballots, poll books, and certificates
have been placed shall lay the same before them for examination. They
may, if deemed necessary, require the attendance of any of the
commioners or canvassers, or other officers or persons present at the
election, to answer questions under oath respecting the same, and may
make such other orders as shall seem proper to procure correct returns
and ascertain the true result of the said election in their county.
They may adjourn from time to time, and when a majority of the
commissioners is not present their meeting shall stand adjourned
-----------------------------------------------------------------------
\1\ Record, pp. 2392, 2440-2449; Journal, pp. 364, 365.
\2\ First session Fifty-first Congress, House Report No. 19; Rowell,
p. 13; Rowell's Digest, p. 436.
Sec. 582
till the next clay, and so from day to day till a quorum be present.
They shall, upon the demand of any candidate voted for at such
election, open and examine any one or more of the sealed packages of
ballots and recount the same, but in such case they shall seal up the
same again, etc.''
After quoting the second certificate the report says:
This certificate the governor ignored altogether, and the contestee
now seeks to justify his action by saying that upon the making of the
original certificate the county court was functus officio, powerless
even to correct an error; and that a recount can be had only when the
demand therefor is made prior to the issue of a certificate. This
contention is directly in the teeth of the contestee's own action in
demanding the recount, and is not in the judgment of your committee
tenable on any ground.
The mamifest purpose of the law in providing for a recount is that
errors may be corrected. There can be no recount until there has been a
perfected count. Whether a recount shall be necessary can not be
determined till the first count is finished. No provision is made in
the law as to the time when the recount must be demanded. There is no
statute of limitations on the subject. To hold that a recount must be
demanded on the day of the original count leads to the manifest
absurdity of requiring the candidate to be present, in person or by
proxy, in as many different places as there are county courts in his
district at one and the same time. In the district in question there
are twelve counties. If the recount was lawful, as undoubtedly it was,
so then was the certificate of its result, and the governor exceeded
his powers in accepting the first and ignoring the second certificate
from Ritchie County.
In a similar way the governor rejected a second certificate from
Calhoun, thereby taking 2 votes from contestant. This second
certificate was made, not in response to a demand for a recount, but to
correct an error. The certificate itself shows:
At a regular session of the county court of Calhoun County, held at
the court-house of said county on Monday, the 7th day of January, 1889,
on motion of A. J. Barr, it is ordered by this court that the returns
of the election held in this county on the 6th day of November, 1888,
as certified by the county court, held on the 12th day of November,
1888, be corrected, it appearing to the court that there is a clerical
error in the returns as certified, to wit: That the record of the
result of said election for a Representative in the Congress of the
United States shows that Charles B. Smith received 630 votes, which
should have been C. B. Smith received 632 votes.
It is therefore ordered by this court that the record of this count
be corrected so as to show that C. B. Smith received, etc.
The report says of the governor's rejection of the second
certificate:
He assigned no reason for his action, but counsel for contestee now
seek to justify it on the grounds here in before stated--that upon the
making of the first certificate the county court was functus officio,
and had no power to correct an error, however plain and palpable, after
the certificate had been issued.
It has been held that where the judges of election discover a mistake
upon a recount of the ballots their supplemental return is entitled to
be received (Archer v. Allen, Thirty-fourth Congress); and that errors,
whether fraudulent or accidental, may be corrected at any time, even
after certificate of election issued by the governor. (Butler v.
Lahman, Thirty-seventh Congress--Morton v. Daily, Thirty-seventh
Congress.)
It is believed that there is inherent in every body charged with the
ascertainment of the popular will, whether its functions be judicial or
ministerial, the power to correct an error when discovered and to make
its conclusions express the true will of the people as disclosed by
their suffrages. And it is especially to be noted that there is no
suggestion from any quarter that the certificates from Ritchie and
Calhoun counties, ignored by the governor, did not accurately show the
exact number of votes legally cast for the respective candidates, while
on the contrary it expressly appears that they did so show.
582. The case of Smith v. Jackson, continued.
A person having been seated on credentials regular in form but
improperly issued, the Elections Committee in a sustained case,
ascertained prima facie right in favor of contestant.
Sec. 582
The Elections Committee, in a sustained case, shifted the burden of
proof to sitting Member on ascertaining that contestant had been
entitled to the credentials.
The law requiring a return to ``set forth in words at length'' the
number of votes, the governor, in awarding certificate of prima facie
right, should construe an obscure word as a word in full, not an
abbreviation.
In ascertaining prima facie title the governor should make
intelligible an obscure return from the records of a returning board
when said board has the functions of a court of record.
(b) The remaining question arising as to prima facie right is set
forth in the following statement made by the governor of West Virginia:
The commissioners of Pleasants County certify as to J. M. Jackson's
vote as follows: ``S. M. Jackson received eight hundred and two
votes.'' The words and letters are too plain for any mistake. For the
reasons heretofore given there is no authority to go behind the
returns. The vote certified must be counted if enough appears to
ascertain the meaning. In an action upon a note it was held: ``There
was no error in admitting the note sued on in evidence, because the
amount thereof is written four hund and two and 50-100 dollars.''
(Glenn v. Porter, 72 Ind., p. 525.)
So it has been held that the abbreviation in a declaration, ``Damages
one thous dollars'' is not error. (1 W. L. J., Mich., 395.)
If enough appear to make the return intelligible, it should be made
so.
This can not be done without striking out one letter and inserting
another, or by supplying the seemingly omitted letters. Acting upon the
face of the paper the latter appears more in consonance with adjudged
cases. The least number would give to said Jackson 812 votes. It will
be so entered.
As to this the report holds:
The governor knew--could not help knowing--even if a poor penman
omitted to close his ``o'' so that the word looked like t-w-e, instead
of t-w-o, that the word intended was two. Upon general principles he
was bound to presume that the three letters expressed the whole word,
but he was especially bound to so assume in this case, because the law,
of which he pretended to be so tender, required that ``the certificate
shall set forth, according to the truth, the full name of every person
voted for, and in words at length the number of votes he received for
any office.''
The law, therefore, told him that the word about which he pretended
to doubt was not an abbreviation but a number written in words at
length. He gratuitously assumed the violation of this law by the county
court making the certificate, as well as did violence to the commonest
kind of common sense when he tortured these three letters into the word
``twelve.''
He knew furthermore that ``twe ``is not now, never was, and probably
never will be amongst sane men an abbreviation of twelve, or of twenty,
or of any number known to an American. And he knew again that the
letters were intended to express a number, and that there is no number
known to the English language written with three letters, the first of
which is ``t ``and the second ``w ``except the single number two.
But even if it were conceded that there could possibly have been a
doubt as to what the word meant, then it was a patent ambiguity, which
any law student could have told the governor it was his duty to explain
by evidence. This he was bound to do, and could very readily have done,
as will clearly appear hereafter. Had it been impossible for him to do
so, the only legal alternative remaining was to strike out the word
altogether as insensible, and read the return 800.
Neither process would have given the certificate to the contestee.
The governor therefore guessed enough to give to that gentleman 3 of a
majority.
The true vote in Pleasants County for Jackson was 802, and not 812.
Nobody now claims, nor did anybody ever claim, that it was in fact
anything else.
Counsel for contestee, however, without attempting to defend a trick
indefensible, ingeniously argued before the committee that the governor
had no legal standard by which to explain the so-called
Sec. 582
doubtful word, and that no competent legal evidence has been produced
by the contestant to show that the true vote in Pleasants County was
other than as counted by the governor.
The argument is that under the laws of West Virginia the
commissioners of the county court do not constitute in any proper sense
a court of record, but are merely a returning board, having no judicial
functions,. except when making a recount, and no authority to evidence
their action except by the issue of a single certificate, which is to
be sent to and deposited with the governor.
Upon the faith of this proposition it is contended that the only
legal record evidence of the vote in Pleasants County, as ascertained
by the county court, is the certificate sent to the governor, and that
the certificates procured by the contestant from the clerks of the
county courts and offered in evidence, showing the results of the
elections in the several counties, are not competent evidence.
These certificates, it is contended, were made without authority of
law and at the instance of a court having no right to make a record.
The report next discusses the case of Brazie v. the Commissioners of
Fayette County (25 W. Va., 213) and finds that it does not sustain the
contention of counsel for sitting Member.
Aside from general principles, the report finds from West Virginia
statutes that the county court is more than a mere returning board; for
it is intrusted with the duty of fixing voting places; of naming
election commissioners. Moreover, to it are returned certificates from
the district canvassers, the ballots cast, and one set of poll books.
Its clerk is by law the custodian of these records. It convenes in
special session to pass on election returns, has power to summon
witnessess, administer oaths, and ``make such orders as shall seem
proper to procure correct returns, and ascertain the true result'' of
the election. The fact that this court meets in ``special session''
indicates to the committee that it is more than a mere returning board.
The report further finds:
Provision is expressly made by section 46, Acts 1881, chapter 5, for
a complete record of all the proceedings of the county court, both
those which relate to its general jurisdiction, exercised at its
ordinary sessions, and those which relate to its exceptional
jurisdiction, exercised at its special sessions.
But, in addition to the record thus provided for, there are other
provisions of the law with which the position assumed by contestee's
counsel and now under discussion are inconsistent.
By section 22 it is prescribed that when an election is held in a
county or district for any or all of some twenty-two different
officers--State, county, and Federal--``the commissioners of the county
court, or a majority of them, * * * shall carefully and impartially
ascertain the result of the election in their county, and in each
district thereof, and make out and sign as many certificates thereof as
may be necessaxy. * * * The said commissioners shall sign separate
certificates of the result of the election within their county for each
of the offices specified in this section which is to be filled;'' that
is, separate certificates for each of the twenty different offices,
State, county, and Federal.
Section 23, still preserving the plural number and speaking of
certificates, makes provision for the disposition of these
certificates. As to certain offices, one of the certificates is to go
to the governor; as to certain other offices, one is to go to the
secretary of state; as to certain offices, one is to go to some
designated public officer; the other to the candidate elected.
In all cases, with respect to every office, it is the duty of the
court to sign separate certificates. As, of the separate certificates
directed to be made in the case of a candidate for Congress, one only
is to go to the governor, and, as no provision is made for the giving
of the other to the candidate or to any public officer, it necessarily
remain with the clerk of the court.
By section 5 of chapter 130 (code of West Virginia)--
``A copy of any record or paper in the clerk's office of any court,
or in the office of the secretary of state, treasurer, or auditor, or
in the office of surveyor of lands of any county attested by the
officer in whose office the same is, may be admitted as evidence in
lieu of the original.''
* * * * * * *
Your committee are therefore clearly of the opinion that, under the
laws of West Virginia, it was competent for the governor and it was his
duty to make intelligible if unintelligible the certificate
Sec. 583
as to the vote in Pleasant County, by consulting the certificate and
record of that vote on file in the clerk's office of that county, and
that in default of his having done so it is competent for them and is
their duty now to do it.
It is conceded that ever since the passage of the West Virginia act
of 1882, which we have been discussing, it has been the custom of the
county court to keep on file a duplicate certificate showing its
conclusions with respect to the election of a Representative to
Congress.
(2) In accordance with their reasoning as to the prima facie case the
majority of the committee say:
And they are of the opinion that, on the face of the returns, the
contestant was elected by a majority of 12, and was entitled to the
governor's certificate of election. Such being the case, the contestant
is now to be treated as if he had received the certificate, and the
onus is cast on the contestee to show that the returns, if truly made,
would elect him. (Wallace v. McKinley.)
The minority of the committee, in views presented by Mr. Charles F.
Crisp, of Georgia, defend the action of the governor of West Virginia,
but do not dissent from the propositions of law laid down in any branch
of the case.
583. The case of Smith v. Jackson, continued.
When irregularity of a jurat works rejection of a poll unless
canvassing officers are satisfled that the oath was taken, the counting
of the poll is conclusive offset to a faulty jurat.
A slight technical error in a jurat, omitting that which may be made
certain, should not cause rejection of a poll, even when the law makes
rejection the penalty of improper certification of the oath.
Failure of election officers to include in their returns votes for a
certain office as required by law, when said votes have been counted
and tallied, does not justify rejection of the poll.
As to the final right to the seat, two classes of questions arose,
first as to the effect of certain alleged irregularities in the conduct
of the election; and second as to the qualifications of certain voters.
First, as to the alleged irregularities.
(a) Sitting Member asked that the poll of Ebenezer precinct be
rejected because it did not appear that the commissioners who conducted
the election were sworn. The report says:
The record shows that on the poll book returned to the county clerk's
office the oath appeared at length and in the form prescribed by law,
subscribed by each and all the commissioners, but the jurat is
irregular and indefinite. It reads as follows:
``Subscribed and sworn to before me as one of the commissioners, L.
F. Law, this ---- day of November, 1888.
``Peter Conley.''
Both Law and Conley were commissioners, and either had the power to
swear all the rest. It is very clear, even from the imperfect record,
that all took the oath by subscribing to it, and that as to two at
least the certificate is conclusive. Where part of the officers are
sworn, others not, the election is valid. (Fuller v. Davison, 2 Bart.,
126.) Two things are to be noted in this connection, first, that sworn
or unsworn, all the commissioners were de facto election officers, and,
second, that no harm resulted to anyone, either the public or an
individual voter, from their failure to be regularly sworn. All
authorities agree that the acts of de facto officers are to be accepted
and treated as valid so far as the public and the candidates are
concerned. (Paine on Elections, sec. 373, and cases cited.) It is a
well-settled principle of law, and a very ancient one, ``that the act
of an officer de facto, where it is for his own benefit, is void * * *
but where it is for the benefit of strangers, or the public, who are
presumed to be ignorant of such defect of title, it is good.'' (Cro
Eliz, 699.)
Sec. 583
It has been repeatedly held that a certificate of unsworn officers
even is prima facie, and the burden is on the contestant to show that
the errors committed affected the result or rendered it uncertain.
(Taylor v. Taylor, 10 Min., 107 Whipley v. McCune, 10 Cal., 352.)
It is contended however, that this principle does not apply in this
case because the law of West Virginia provides:
``The said oath shall appear properly certified on one of the poll
books of every election, and in no case shall the vote taken at any
place of voting be counted unless said oath so appears, or unless it be
proved to the satisfaction of the commissioners of the county court,
convened at the court-house, as hereinafter required, that the oath was
taken before said commissioners, canvassers, and clerks entered upon
the discharge of their duties.''
But the contention must fail and the argument be against the
contestee for the manifest reason that unless the oath had been taken
the votes at this precinct could not have been counted. The taking of
the oath was to be made to appear either upon the poll books or by
proof to the satisfaction of the county commissioners. These
commissioners had power, ``if deemed necessary, to require the
attendance of any of the commissioners or canvassers, or other officers
or persons present at the election, to answer questions under oath
respecting the same, and to make such other orders as shall seem proper
to procure correct returns and ascertain the true result of the said
election in their county.''
The commissioners of the county court must be presumed to have done
all things within their power necessary to be done in the performance
of their duty in accordance with law. They can not be presumed to have
done anything unlawful. The votes could not have been lawfully counted
unless the election officers appear to have been sworn, either by the
evidence of the poll book or by other evidence satisfactory to the
commissioners. The votes were counted, and if it be true, that the
swearing of the officers is not proven by the poll book, it must have
been otherwise proven to the satisfaction of the commissioners.
No reason, therefore, has been shown why your committee should
disfranchise the voters of this district.
The majority also discuss two other precincts:
The objection made to the vote of the Murphys Mill precinct is of
such a frivolous character as to merit but little discussion. It is,
that the oath of the precinct commissioner does not appear properly
certified on the poll book. It was not properly certified because
Marion J. Bickle, a justice of the peace, who administered it, signed
the jurat ``Marion J. Bickle, in and for Clay district, Wood County, W.
Va.,'' omitting the words ``justice of the peace'' after his name.
He was, in point of fact, a justice of the peace, as the evidence
shows. The less comment made on this objection the better, one would
think, for the contestee.
The next objection is like unto the last, and relates to Wadesville
precinct, Wood County. The objection here again relates to an alleged
irregularity in the jurat. The oath was administered by T. J. Sands,
one of the commissioners of election, but he omitted to sign with his
official title.
That the oath was administered by him, that he was a commissioner and
by law authorized to administer it, are facts not capable of being
called in question.
The matter does not seem to merit discussion.
(b) The sitting Member asked for the rejection of Kentuck precinct on
the ground that no vote was returned on the poll books by the precinct
commissioners nor any certificate in the case of the candidates for
Congress. The law of West Virginia, after providing for the count at
the close of the polls, has this requirement:
The contents of the ballots as they are read shall be entered by the
clerks under the supervision of the commissioners on tally papers for
the purpose by suitable marks made opposite to or under the name of
each person for any office to be filled.
As soon as the results are ascertained, the commissioners or a
majority of them * * * at each place of voting shall make out and sign
two certificates thereof [according to a prescribed form] and transmit
one to the clerk of the county court. They shall also seal up the
ballots and send them with one set of the poll books to the said clerk.
Sec. 584
The report says:
A reference to the certificate will show that the certificates were
made and signed by the commissioners holding the election, and returned
to the clerks of the county and circuit court, as required by law, but
that the names of contestant and contestee did not appear in said
certificate, nor the office for which they were candidates and received
votes. But their names were on the ballots cast at said precinct for
said office, and the ballots were counted by the commissioners of
election, and their names were written down by them on the tally sheets
opposite or under the designation of the office for which they received
votes, and the number of votes which each received was designated on
said tally sheets, to wit, 152 for contestant and 72 for contestee, in
the same manner as was done with respect to the names of all other
candidates voted for at said election, and the tally sheets were
returned with the certificates and the ballots to the clerk of the
county court. The aggregate votes appearing thereby to have been cast
for contestant and contestee were one less than the highest number
appearing to have been cast for any other two opposing candidates. When
these papers reached the commissioners of the county court, counsel for
contestee demanded a recount of the votes for Jackson County, as to
Representative in Congress, as he had the lawful right to do. Under
this demand the commissioners of the county court recounted all the
ballots cast for Representative in Congress in that county, and upon
that recount the number of votes appearing to have been cast for the
contestant and contestee were the same as appeared upon said tally
sheets, and including these votes, the result in the county was, for
contestant, 2,272 votes, and for contestee, 1,886 votes. And this
result was certified to the governor.
The only irregularity here seems to have been a clerical error, in
the failure of the election commissioners to insert in the certificate
the result of the election at that precinct as to Representative in
Congress. They did ascertain the result and wrote it correctly on the
tally sheets, and when the county commissioners counted the ballots at
the demand of contestee's counsel, they obtained the same result, and
the ballots were there and inspected by the commissioners, and
presumably by the contestee's attorney, who made the demand for
recount.
But this failure of the commissioners of election to make return of
the votes at this precinct could not have the effect to disfranchise
the persons who voted there, and the law of West Virginia especially
provides for such a case. In declaring the powers and duties of the
county commissioners in ascertaining and declaring the result of the
election in their respective counties, the following language is used:
``They may, if deemed necessary, require the attendance of any of the
commissioners or canvassers or other officers or persons present at the
election, to answer questions under oath respecting the same, and may
make such other orders as shall seem proper to procure correct returns
and ascertain the true result of the said election in their county.''
The presumption as well as the proof is that the county commissioners
ascertained, by the exercise of their powers of examination, the true
result of the election, and certified accordingly. There is no pretense
that they did not.
Counsel for contestee say that he, the contestee, made no demand for
a recount of the vote at this precinct, and argue that the fact of such
demand should appear of record. There is no law requiring the demand to
be made matter of record. There is no record of demand made in any
precinct, though contestee admits having made such demand in some.
There is affirmative proof (Record, p. 724) that demand was made for a
recount in this precinct by contestee's attorney, and neither the
attorney nor the contestant was called to rebut this evidence.
The matter does not seem material nor to merit discussion, since
there is no pretense that the commissioners in the exercise of their
legitimate functions did not ascertain the true vote in this precinct;
no pretense that it was not truly declared; no pretense that any voter
suffered anything by the alleged irregularity; in fact, nothing to take
this case out of the ordinary rule of law, that statutes directing the
mode of proceeding of public officers are directory merely, unless
there is something in the statute itself which plainly shows a
different intent.
584. The case of Smith v. Jackson, continued.
No fraud being shown and no specific fraudulent act being alleged,
the House declined to reject a poll because unsworn persons assisted in
the count.
The holding of an election in a place other than the legal place does
Sec. 584
not cause rejection of the poll when evidence shows that no voter was
deprived of his rights thereby.
A mere technical violation of the law as to custody of ballot box, no
injury being shown to anyone, does not justify rejection of the poll.
(c) Sitting Member alleged that the poll of Pine Log precinct should
be excluded because of ``misconduct and fraudulent acts'' on the part
of the election officers. It appeared from the testimony that in the
night during the counting of the vote one of the three commissioners
went to sleep, while another sat smoking, leaving the third
commissioner to do the counting, assisted by the son of the sleeping
commissioner and a man named Davis. Both the son and Davis belonged to
sitting Member's party. It appeared by reference that Commissioner
Rorden, who did the counting, was a Republican, while the commissioner
who smoked was McKown, a Democrat. The report says:
The evidence does not show that the ballot box was in the custody of
any one of the commissioners so as to require it to be sealed. Even if
it was out of the custody of Dernberger, from the fact that he was
asleep, it was not out of that of McKown, who was present in the room,
and the counting proceeded under his observation, and his place was
filled in the operation of counting by a Democrat. There is not the
slightest evidence tending to show that there was any tampering with
the ballot or returns, or any fraud of any character. Ala that was done
was in the presence of at least two of the commissioners who were
awake.
It appears from the evidence of Lemley (pp. 724-725) that the return
from this precinct did not show any votes for contestee, but 139 votes
for contestant, a mere clerical error in failing to write into the
return contestee's vote, but, under the recount which was demanded by
contestee the votes for him at this precinct were counted by the
commissioners of the county court, and the number of them, 93, included
in their return to the governor.
It is to be observed that no allegation of any specific act of fraud
is alleged. Your committee are asked to presume that fraud was
committed because it might have been committed, and this in the absence
of any pretense that a single legal vote was excluded from, or a single
illegal vote was included in, the result announced.
Your committee do not know of any principle of law that would justify
them in so finding. They understand the law to be as declared in Mann
v. Cassidy (1 Brewster, Penna., 60): ``An allegation of fraud committed
by election officers is immaterial unless it be also stated that the
result has been affected.''
(d) Sitting Member charged that in Boyer preemet the voting place was
at Isaac Branch's schoolhouse, one-half to three-quarters of a mile
distant from McGill's post-office, which the county court had
established as the legal voting place.
The report says.
The evidence tends to prove the above statement, but it is not
claimed, nor does the evidence tend to show, that any person was
deceived or prevented from voting thereby. Two witnesses only are
examined by contestee in relation to this precinct, and one of them
(Fowler, pp. 408-409) says that it was his understanding from the time
he knew of the election that it was to be held at the Isaacs Branch
schoolhouse, and that every voter in the precinct voted at said voting
place at said election except one, and he was too sick to go to the
polls. The other witness (Dunlap, p. 410), corroborates Fowler
generally, and, in addition, says that the school election in 1887 was
held at the same place. So that contestee by his own witnesses proves
that no voter was wronged out of his vote, and that he was not injured
by this change of voting places.
This case calls for the application of the rule which protects the
voter against disfranchisement from the default of a public officer
when such default has resulted in no injury to anyone. (Farrington v.
Turner, 53 Mich., 27; People v. Simonson, 5 N. Y., 22; Steele v.
Calhoun., 61 Miss., 556.)
Sec. 585
The same principle was applied to several other precincts where like
irregularities occurred.
(e) The report thus states another objection:
In Walton precinct, Roane County, the contestee claims that the
ballot box was in the custody of one of the commissioners of election
alone, in violation of law, and that the vote at this precinct, where
contestant had 131 plurality, should be rejected for this reason.
The section of the law relating to this subject is as follows (Code,
ch. 3, see. 14):
``The ballot box shall have an aperture in the lid or top thereof to
receive the ballots of voters. While the polls are open it shall be
kept where it may be seen by the voters, and after the polls are
closed, and until the votes are counted and the certificates of the
result are signed, shall remain in the immediate custody of the
commissioner, or anyone of them, with the consent of the others. But it
shall not be opened unless two of them at least be present, and if left
at any time in the custody of one of the number, shall be carefully
sealed so that it can not be opened or any ballot taken therefrom or
entered therein without breaking the seal, and the others shall write
their names across the place or places where it is sealed.''
It was in proof that at the dinner hour on election day the ballot
box was sealed, and was for about five minutes in the exclusive custody
of one commissioner. During the counting, while they were resting, a
Republican commissioner, Garvin, and a Republican clerk, Summers, were
for a short time alone with the box, the others having stepped out. The
witness Walker said, according to the report:
Walker testifies for contestee that he saw nothing in the conduct of
Garvin or Summers which led him to suppose that there had been any
tampering with the ballot box, and that there was nothing to indicate
that there had been; that he knew Garvin well, and did not believe he
did or would tamper with the ballot box, or permit it to be done; that
the result of the election was about as usual at that precinct, and
nothing in it to indicate that there was any tampering, and that the
number of ballots tallied with the number of names on the poll books.
There is a total absence of evidence tending to show any fraud or
improper practices on the part of anyone in conducting the election.
The evidence fails to show that the box was ``left at any time in the
custody of one of the number'' in contemplation of the law. While they
were at dinner it was as much in the custody of the one who did not
have manual possession as it was in his who did. Besides, at that time
it was sealed. On the other occasion it was not left in Garvin's
custody in contemplation of law or in fact. The others stepped out only
momentarily. The sealing was to be done only when the two turned it
over to the third, thereby expressly charging him with the custody.
Besides, if there was any violation of law it was only technical, and
did not tend to the injury or prejudice of the contestee, and can not
deprive the voters of the right of having their votes counted as cast.
586. The case of Smith v. Jackson, continued.
A clear preponderance of competent evidence is required to overthrow
the prima facie legality of a ballot received by the election officers.
Testimony quoting statements of the voter after election as to how he
voted or as to his qualifications is inadmissible to prove illegality
of a ballot, being hearsay.
In absence of direct proof of how he voted, evidence as to the
voter's party, his advocacy of candidates, or the friends who sustained
his right to vote is admissible.
One who has knowingly cast an illegal vote should not be relied on to
prove how he voted; but it is otherwise in case of honest mistake.
The minority of the committee did not dissent from the above
conclusions of law; but joined issue on the facts (not the law)
involved in the examination of
Sec. 586
the second branch of the inquiry as to final right. The majority thus
stated the principles of law by which it would be governed in
determining the qualfications, of voters:
(a) A vote accepted by the commissioners holding the election is
prima facie legal. Before it can be thrown out for illegality it must
be satisfactorily shown by the evidence to have been cast by one not
legally qualified to vote--that is to say, the presumption of legality
must be overcome by a clear preponderance of competent evidence.
By competent evidence we mean such evidence as would be admitted on
the trial of the issue before a judicial tribunal, except where a
relaxation of the rule is made necessary by the nature of the issue.
(b) No provision is made by the statutes of West Virginia to
ascertain what particular ballot any voter has deposited after it has
been once placed in the ballot box. Therefore in this case it becomes
necessary to ascertain for which candidate a vote was given by other
means than the ticket itself.
It seems to have been taken for granted by both parties that the
voters themselves could not be compelled to disclose how they voted. It
may be remarked in this connection that one who would knowingly cast an
illegal vote ought not to be regarded as the most reliable witness. On
the other hand, when he has been honestly mistaken, we can see no
reason why such voter ought not to be trusted as a witness.
In order, then, to prevent illegal voting with impunity, it becomes
necessary to determine what kind of testimony shall be received in
ascertaining which candidate got the benefit of the illegal vote. The
committee have followed the rule which appears to them to be the most
reasonable, as well as the best sustained by authority.
In the absence of direct proof, evidence showing to what political
party the voter belonged, whose election he advocated, whose friends
maintained his right to vote, and kindred testimony has been held
admissible. Of course what the voter said at the time of voting is
admissible as a part of the res gesta.
But what a voter said after the day of the election, either as to his
qualifications, or how he voted, or whether he voted, the committee
hold to be inadmissible in the absence of other testimony on the point.
If such testimony can be admitted at all, which we do not concede, it
certainly ought not to be received when the statement of the voter is
made after the legality of his vote has been called in question. To
admit this kind of testimony is to place it in the power of one not
entitled to vote to have his illegal vote counted twice against the
party he desires to defeat, without subjecting himself to cross-
examination and without even the formality of testifying under oath.
Again, one legally qualified may, by statements after he has voted,
make himself out to be disqualified without incurring any penalty, and
in that way have his legal vote given to one party counted as illegal
against another party. One who has not voted at all may in the same way
be proved to have voted. In a close contest, with party feeling running
high--perhaps party control involved--the admission of this kind of
testimony would be doubly dangerous. It has nothing to commend it
except a class of decisions whose authority has been weakened, if not
destroyed, by later and better considered adjudications. The committee
reject all such testimony as being mere hearsay of the most dangerous
kind when standing alone. When the only evidence of how a man voted, or
whether he was a legal voter, is the unsworn statement of the voter
after the election, we have let the vote stand.
586. The case of Smith v. Jackson, continued.
A voter capable of making a valid will or contract or of being
criminally responsible for his act, may not be disqualified as of
unsound mind.
Nonprofessional evidence that a voter is an ``idiot'' may be given
weight as a statement of fact rather than of opinion.
Nonprofessional testimony as to a voter's ``unsound mind'' should be
accompanied by careful definition to be of weight.
A voter ordinarily self-supporting is not to be held as a pauper
because of receiving public aid temporarily.
Sec. 587
(c) In regard to what constitutes a person of unsound mind, we have
adopted the rules substantially as laid down by American courts and
text-book writers, and hold that a person having sufficient
intelligence to make a valid will, or to bind himself by ordinary
contracts, or to be criminally responsible for his acts, is a person of
sound mind. One whose will would be held invalid for no other reason
than mental incapacity is a person of unsound mind.
In the record we find the oft-recurring question, ``Was the voter, in
your opinion, a man of unsound mind?'' put to a nonprofessional witness
without any attempt to define what was meant by unsoundness of mind. To
the answer to such question, unaccompanied by any explanation of what
the witness understood by the term, we attach very little weight.
The condition of the voter, his acts and speech, how he is regarded
by those who know him, as to his competency to contract, judicial
determinations, and the like evidence has been given due weight. The
term ``idiot'' is so well understood that the statement of a witness
that a person is an idiot is given more weight, as being the statement
of a fact within the knowledge of the witness and not a mere opinion.
(d) Upon the question of what constitutes a pauper there is some
disagreement in the authorities, but we think the following may be
taken as a fair definition: A pauper is one who is continuously
supported, in whole or in part, out of funds provided by the public
authorities for that purpose. One who has been a public charge and
afterwards became self-supporting for a sufficient time before the
election to show that his ability to support himself is not a mere
temporary condition may legally vote. One who, under temporary
misfortune or sickness, receives public aid, but is ordinarily self-
supporting, is not a pauper.
587. The case of Smith v. Jackson, continued.
A new residence may not be established by intention without an actual
removal to the new place.
Residence may not be retained by a simple statement of intention when
actual residence has been taken up elsewhere.
Votes of persons otherwise qualified and cast in good faith, in
accordance with previous habit, should not be rejected because of
disputed boundary of precinct.
(e) The law which determines the question of residence is so well
settled that it does not need a restatement by the committee; the
difficulty is in the application of the law to the evidence.
Absence from the place claimed as a residence, for temporary
purposes, does not work abandonment; but in this case some of the
witnesses and some of the commissioners of election seem to have had
the view that a voting residence might be retained by the simple
statement of intention to retain a certain place as a voting residence,
although an actual residence had been taken up elsewhere, with no fixed
intention of ever again actually living at the place where the right to
vote is claimed. Others seem to think that they can establish a new
residence by intention before actually and in fact moving to the new
place.
We do not concur in these views. It takes both act and intention to
establish a residence, and an intention to retain a residence which has
been left must be an intention actually to return to it and reside in
it.
(f) Some votes in this record are questioned on account of disputed
or doubtful boundary lines. The committee have not thought it their
duty to go into an investigation of disputed boundaries, but have
counted all votes as legal when the voters were otherwise qualified and
voted in good faith in the district where they believed that they had
their residence, and where they had been in the habit of voting.
588. The case of Smith v. Jackson, continued.
The fact that laborers are employed in a moving gang by a corporation
does not destroy the presumption that they are entitled to vote at the
place of headquarters.
Sec. 588
A vote challenged in notice of contest by either party is a proper
subject of investigation.
When both sides have without objection investigated an alleged
illegal vote, failure to specify it in notice of contest may not be
urged.
Admission by contestant that his evidence is of doubtful sufficiency
is held to amount to waiver of the allegation.
(g) In the examination of the qualifications of individual voters the
majority found
Fourteen other votes, laborers on a railroad, are attacked on the
ground that they had not lived in West Virginia for a year, were not
residents of the district where they voted, and were employees of a
corporation.
As to some of them it clearly appears that they had lived in the
State a sufficient time to entitle them to vote. As to none of them is
it shown by competent testimony that they had not been so resident, and
the presumption is in their favor.
They belonged to a construction gang which had its headquarters where
they voted; to this point they constantly returned; received their mail
there; had their washing done there, and had a right to fix their
residence there. Their employment by a corporation did not give them a
residence, but it did not prevent them from acquiring one. Some had
voted there a year before. We think the presumption of legality is in
no way overcome by the evidence.
The report also disposes of two questions of practice:
(a) Two or three of these votes contestee insists should not be
charged against him, because not named in contestant's notice of
contest.
One of them, Michael Hobart, was challenged by contestee in his
reply. The vote was illegal and cast for contestee. The committee think
that a vote challenged in the notice by either party is a proper
subject of investigation.
Two others were not named in either notice. The pleadings in this
case are more specific than the practice before the committee requires.
As a general rule, parties ought to be bound by their pleadings, but
where neither party has been taken by surprise, and both have entered
into the investigation, the rule should be relaxed in the interest of
justice.
The evidence in regard to these voters was taken a month before
contestee commenced examining his witnesses, the witnesses impeaching
the votes were cross-examined on this branch of their testimony, and
the contestee should be held to have waived his objections.
(b) In a final summary of his claims contestant has conceded that he
has failed to establish his charges with reference to a number of named
voters, and that the evidence in regard to others places them in the
doubtful list. As to all such we have not felt it our duty to examine
the evidence, as we take the admission to amount to a waiver, although
as to some of them it may be said it takes all the benefit of
presumptions to hold them valid.
As a result of their investigations of the alleged illegal votes, the
majority reports finds an actual plurality of 39 for contestant, and
recommends the following:
Resolved, That James M. Jackson was not elected as a Representative
to the Fifty-first Congress from the Fourth Congressional district of
West Virginia, and is not entitled to the seat.
Resolved, That Charles B. Smith was duly elected as a Representative
from the Fourth Congressional district of West Virginia to the Fifty-
first Congress, and is entitled to his seat as such.
The minority, after an examination of the alleged illegal votes,
concluded that there was a majority of 23 for sitting Member, and
recommended the following:
Resolved, That C. B. Smith was not elected a Representative in
Congress from the Fourth district of West Virginia, and is not entitled
to a seat therein.
Resolved, That James M. Jackson was duly elected a Representative in
Congress from the Fourth district of West Virginia, and is entitled to
retain his seat therein.
Sec. 588
The report was debated at length on January 31 and February 1 and 3,
1890,\1\ and on the latter day the question was first taken on
substituting the first resolution of the minority for the first
resolution of the majority, and it was decided in the negative--yeas,
135, nays 165. The question next recurred on substituting the second
resolution of the minority for the second resolution of the majority,
and was decided in the negative--yeas 137, nays 164.
The question recurring on the adoption of the resolutions reported by
the majority, the first resolution was agreed to--yeas 166, nays 0; and
the second by yeas 166, nays 0.\2\
Mr. Smith then appeared and took the oath.
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\1\ Record, pp. 1001, 1010, 1025-1043; Journal, pp. 187-190.
\2\ The rulings of Mr. Speaker Reed as to the counting of a quorum
was made in connection with the consideration of this case.