is the act of the voter. If he fails to register it is his own fault, and he cannot complain, nor can any one else, if his right to vote is lost by reason of non-registration. After a careful examination of the testimony in this case, we believe that it conclusively shows that not less than 2,400 persons voted in this district who were not registered, and that not less than 1,000 of them voted for the contestant. We cannot here set out all the testimony on this subject, but submit a table, giving the precincts,the number of non-registered voters, names of witnesses, and pages of the record, for convenience of reference: TABLE NO. 2.-Unregistered and illegal voters who are proven to have voted for William M. Lowe for Congress, November 2, 1880. These illegal voters comprise a part of the 12,665 votes which were returned for Wm. L. Lowe. - Courtland No. 2.... 1142-1154 46 28 18 1183 12 1177 16 1196 11 180 55 16 Names of witnesses who prove the illegality of these voters, or that they voted for Wm. M. Lowe. 33 Robert F. Riddle and Robert F. Proctor pp. 790, 792. 89 Frederick J. Robinson, p. 784. Daniel D. Harris, p. 783. J. F. Skelton, p. 788. Samuel Rorex, p. 778. D. V. Enochs, p. 781. Robert S. Skelton & Wm. B. Bridges, pp. 773, 774. William P. Keith, p. 795. Alexander Moody, p. 794. Each proven by the voter himself, 268. 279. A. J. Bentley, p. 513, and J. M. Robinson, p. 544. G. D. Miller, pp. 509, 5103. Thomas B. Hopkins, pp. 511, 512. N. P. Taylor, p. 570. Thomas J. Taylor, p. 514. Wm. M. Douglass and G. W. Smith, pp. 540, 542. 1139 189 Quintus Jones and John W. Battle, pp. 1081, 1127. Oliver H. Reid, p. 1131. J. Milton Gray, p. 1132. W. J. Seamans & C. A. Crow, p. 1161. Robert Donnell, p. 819: Florentine 9 Franklin J. Pepper, p. 855. James O. Murphy, John S. Jenkins, S Gilbert Jackson, Wm. J. Kernachan, It will be seen by reference to the testimony that in a very large proportion of the cases where persons voted who were not registered the testimony is direct and positive that these non-registered persons voted for the contestant; but if it be conceded that there is doubt as to who they voted for, then the rule of law as to dealing with such cases is as follows (see McCrary on Elections, page 298, section 223, first edition): In purging the polls of illegal votes, the general rule is that, unless it be shown for which candidate they were cast, they are to be deducted from the whole vote of the election division, and not from the candidate having the largest number. (Shepherd v. Gibbons, 2 Brewst., 128; McDaniel's case, 3 Penn., L. F., 310; Cushing's Election Cases, 583.) Of course, in the application of this rule such illegal votes would be deducted proportionately from both candidates, according to the entire vote returned for each. Thus, we will suppose that John Doe and Richard Roe are competing candidates for an office, and that the official canvass shows: But there is proof that 120 illegal votes were cast, and no proof as to the person for whom they were cast. The illegal vote is 10 per cent. of the returned vote, and hence ́each candidate loses 10 per cent. of the vote certified to him. By this rule John Doe will lose 62 votes, and Richard Roe 574 votes, and the result, as thus reached, is as follows: Applying this principle, we here submit a table showing the number of votes cast for contestant and contestee at various precincts, the number of non-registered voters, and the pro rata of deductions from each party on account of the non-registered voters, and the pages of the record where the registration and the poll-lists will be found, &c. : The evidence of John B. Talley, probate judge, pp. 689, 690, shows that the registration lists are complete and correct. The certificate under seal of William Richardson, probate judge, p. 656, shows that the registration lists of the precincts named are full and correct. The evidence of John M. Townsend, probate judge, pp. 822, 823, shows that the registration lists of Mooresville, Slough Beat, Shoal Ford, and Athens are correct, full, and complete. The evidence of William E. Harraway, probate judge, p. 905, shows that the registration lists which he gives are correct. The evidence of J. H. McDonald, probate judge, p. 1138, shows that the registration lists in the record, pp. 1142-1154, contain the list of registered voters of Courtland district. Now, making a calculation upon the basis of 2,400 non-registered voters, instead of 2,698, as shown by this table, and making the deductions pro rata, there would have to be deducted from the vote of the contestant 1,642, and from the vote of the contestee 758, and this of itself is more than sufficient to overcome all that is claimed by contestant. But we maintain the truth to be that in making this deduction on account of illegal ballots by reason of non-registration there should first be deducted 1,000 at least, because the proof shows that that number voted for the contestant, and that in making the application of the prorata rule it should be confined to the remaining 1,400 votes which the testimony does not show for whom the votes were cast, and, making the application to this number, there would be deducted from the contestant, first, 1,000 which were proven to have been cast for him, and, second, 905 under the pro rata rule, making a deduction of 1,905 votes from his aggregate and 495 from the aggregate of the contestee, and if we are correct in this, this alone is conclusive against the contestant in this case. Another rule might be adopted which is more favorable to contestant, and which we have set out elaborately in our conclusion. It is urged by Mr. Ranney, of the majority, who has submitted his "views," that the contestee cannot have advantage of this for the reason, as he claims, that the evidence is not sufficient to show that these parties were not registered. To what special lists he applies his objections his "views" do not inform us. He speaks of them generally and makes his objections equally generally. One of his objections is that 66 we have nothing to show what names were once on them and been dropped off or taken off by reason of death, disability, removals, or for other reasons." We fail to see the pertinency of this objection. If a man had once been registered and had been taken off the list by reason of his death, or by reason of his removal, or by reason of having been convicted of some crime which disqualified him as a voter, he certainly would not be entitled to be on the registration list. He would not be a voter, and in making up the list for the use of the inspectors it could hardly be contended that the judge of probate would put upon the list which was to be the guide of the inspectors the names of persons who had thus ceased to be registered. Another objection he makes is, that few of the lists are verified in the original by the certificate of the registrar. Another is that these papers that have been put in the record are not in the form prescribed, with appropriate headings, &c., and he objects to the poll-lists because some of them do not appear to have been certified by the inspectors, and for that reason claims that they have no verification or identification as genuine poll-lists, and cannot be regarded as proofs; and he says that in three precincts of Limestone County no poll-list appeared to have been returned at all, and the judges gave no certified copy of the same; but he adds that "the contestee has put in evidence three papers sworn to by one of the inspectors in each case as the poll-list, and purporting to be signed by the three inspectors. But as they never sent them to the probate office as required by law, and no reason or explanation for the omission given, we do not regard them as proof or as worthy of credit.” Now, the answer to all this seems to us to be plain. First, as to those lists which he criticises on account of informality, which have been certified by the probate judge, the law requires, as we have seen, first, that the judge of probate shall furnish to the precinct inspectors the registration lists which are to be their guide in conducting the election. Next it requires that the precinct registrar shall be present on the day of the election and register such persons as have not theretofore been registered; next it requires this additional registration list to be sent up with the returns, in the same box in which the returns are sent; next, it requires that this additional registration list shall be filed with the probate judge, and thus we have in the office of the probate judge the very identical registration list which was used and made at that election. The probate judge is by law the custodian of this list, and whether that list was formal or informal in its construction, and whether the proper certificate was put upon it or not, can make no possible difference, so far as the point in controversy is concerned, because it is the list upon which the election was conducted. There was no other list, and the fact that the list may have been irregularly made up by the officers whose duty it was to make it could not possibly render legal a vote that was cast by a party who was not registered even upon this informal registration list. There is no other way to prove what that list was than by the certificate of the judge of probate, except as we will hereinafter state. He was the custodian of the list, and his certified copy of that which appeared in his office as the list is all that the law requires. To the objection that he has made, that some of the poll-lists, to wit, in three precincts in Limestone County, have not been properly proven, because they were presented in evidence by the inspector instead of the judge of probate, we think there is a conclusive answer in this: That the law of Alabama requires one poll list to be certified by the precinct managers and sent up with the returns, and another copy of the poll-list to be kept by the inspector. Now, here are two records kept, one in the probate judge's office, and the other by one of the inspectors. And to either of these the contestee had the right to go for the purpose of procuring these poll-lists, and either one of them is perfectly competent as testimony. In respect of the three precincts referred to, the contestee has seen fit to put in evidence the poll-list which the law requires to be kept by the inspector, and we entirely fail to see why that poll-list is not entirely competent as evidence, just as competent as would be the poll-list that was filed in the office of the judge of probate. But the testimony of these inspectors and the integrity of these poll-lists is attempted to be called in question, because it is said that from these precincts no poll-list found its way into the of fice of the judge of probate. But the fact that these poll-lists did not find lodgment in the office of the judge of probate, when it is proven by the testimony of the inspector who produces the poll-list required by law to be kept by him that that was the poll-list used at that election, then we su omit that the fact that there is no list in the office of the judge of probate for such precinct is not upon any principle known to the law sufficient to defeat the direct evidence above referred to. As to these registration lists therefore the case stands thus: The contestee has furnished certified registration lists as they appear in the office of the judge of probate and poll-lists as to the precincts, except three in Limestone County, and as to these three he has taken the testimony of the inspectors in whose custody the poll-lists were, and, in connection with their testimony, has produced the lists used in those precincts. The objection taken to the poll-lists furnished by the judge of probate because the certificate of the inspectors of the election does not appear thereon is untenable, we submit, for another reason. By an examination of the statute it will be seen that the inspectors are required to keep a "poll-list." Then they are required to make a certificate on that "poll-list," and the "poll-list," as we have above stated, is to be filed in |
