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the office of the judge of probate. Now, the certificate of the precinct managers that is to be indorsed on the “poll-list” is no part of the polllist itself. It is an identification or verification of the poll-list, and when therefore the judge of probate certifies the “poll-list,” it is no part of his duty to certify the verification of the poll-list, and the absence of this verification is therefore no evidence that the poll-list was not duly verified by the certificate of the precinct managers. But to all of these objections that are made to the sufficiency of this testimony we have another answer to make. The contestant was duly notified of these illegal votes, and that their rejection would be contended for in this contest. The contestee, in support of that, put in evidence these poll lists and registration-lists, for the purpose of showing that persons whose names appeared on the poll-lists did not appear on the registration lists, thus proving the illegality of these ballots. The contestant had ample opportunity afforded him to show that these parties were registered, if such had been the fact. Specific information was given him by means of these lists and by direct proof specifying names as to the persons claimed to be illegal voters, and in not a single instance has he proven or attempted to prove that these parties were registered as the law requires. If inferences are to be indulged in, in a case like this, as they are indulged in by the majority in reaching their conclusions, then the inference from these facts which we have just stated is irresistible, that what the contestee has asserted as to these voters is true. If it were not so, if these parties or any of them were registered, the contestant would undoubtedly have availed himself of the opportunity to make the proof by producing the necessary evidence, which must have been within his easy grasp, if the fact had been otherwise than as claimed by the contestee. As above stated, conceding to the contestant all that he claims in regard to the matter of rejected ballots, the rejection of these non-registered voters, which we maintain is clearly commanded by the proofs in this case, must determine the case in favor of the contestee. Mr. Ranney, in his report of the majority, asserts that the registration lists which are placed in evidence are not legal registration lists, that is, they are not such registration lists as are required by law; and his report gives as a reason why this cannot be availed of by Mr. wheeler, that “contestee does not set up a want of legal registration as vitiating the election in any precinct.” Upon this point the majority are mistaken. The allegations of contestee upon this point are as follows: Contestee alleges that at the following precincts of Lawrence County, viz, Courtland, Red-bank, Avoca, Wolf Spring, Mount Hope, Kinlock, Landersville, Hampton's, Oakville, and Hillsboro’, 450 persons were allowed to vote, and did vote, for contestant, some of whom had no right to vote at the precincts where they cast their votes, and others who voted at said precincts were not legal voters, and had no right to vote at all. And contestee further alleges that these persons “did not have a right to vote, for the reason that they had never been registered as required by law.” The proof shows that there was no legal registration at any of these precincts, and therefore all these should be rejected from the count, be: cause where there is no legal registration there cannot be legal voting. This is unquestioned law, and was lately reaffirmed by the committee in the case of Finley vs. Bisbee.
In the Florida case the proof shows that the registration lists, so far as they went, were legal.
In this case the proof shows that there was no legal registration at all in the precincts of Lawrence County which we have mentioned, and it further shows that no part of the pretended registration of said precincts is legal registration.
The allegations of contestee that registration lists are not legal are more direct and positive than the allegation of contestant that ballots were rejected, and more direct and positive than the allegation of contestant regarding Lanier and Meridianville precincts.
COURTLAND BOX NO. 2.
In addition to the foregoing, however, we think it plain that under the law and the repeated decisions of the majority of this committee Courtland box No. 2 must be rejected from the count. This precinct was returned, for contestant 419, and for contestee 111. The law of Alabama requires that upon the closing of the polls the inspectors shall proceed immediately to count the ballots. Now, in the case of this precinct, upon the closing of the polls the inspectors proceeded with the count, and continued until about two o'clock the following morning. Then the suggestion was made by some one that a mistake had been made, and thereupon the ballots were all replaced in the box, and a Mr. Harris, one of the inspectors, who is described by one witness as an Independent voter, and whose politics are of doubtful complexion, at least, took that box, with the ballots in it, carried it away with him, and kept it until the next morning. There is absolutely no testimony proving or tending to prove that the ballots in that box remained the same during this interval.
THE CODE OF ALABAMA.
Section 285 says:
It is the duty of all inspectors of elections in the election precincts, immediately on the closing of the polls, to count out the votes so polled.
The positive proof shows that at Courtland box No. 2 all the inspectors were Greenbackers or Independents, and the record shows that Mr. Lowe, in announcing himself as a candidate, called upon Greenbackers, Democrats, and Independents, and upon these alone, for support. There is no positive proof that Mr. Harris was a Democrat, although Mr. Lowe's lawyers make a great effort to establish that fact, but it is positively proved that he had been an independent voter, and had on four occasions arrayed himself against the Democratic party. It shows that Joseph Wheeler received as many votes as Mr. Lowe, but that the inspectors violated the law, and that Wheeler ballots were abstracted therefrom and Lowe ballots substituted therefor. The uncontroverted proof shows that there were but little over 500 ballots cast at that box, and that the inspectors pretended to be occupied counting these ballots from 5 o'clock in the evening until 2 o'clock the next morning. That even after these nine hours' work the inspectors had not completed the count of the votes. . That they then put the ballots in a rough box, and that one of the inspectors took the ballots away from the voting place, kept them all H. Mis. 35—10
night, and the next day the ballots were illegally counted and a return made, falsely stating that Wheeler had received 111 votes, and that Lowe had received 419 votes.
And the evidence further shows that in truth and in fact Wheeler received at least 200 votes at that box, and the proof tends to show that he received at least 250 votes.
We give below some of the evidence regarding this box.
Mr. Reynolds, a witness examined for William M. Lowe, testified as follows, page 443 : “Was United States supervisor of Courtland box No. 2, at election November 2, 1880.” And on page 4443 gave the following evidence:
Q. Was the vote counted out according to law at your box 1-A. I suppose it was.
Q. Did you see the vote counted out -A. I saw it; I was in there nearly all the time, and watched that.
Q. State how it was counted.-A. It was counted out like the votes are generally counted.
Q. Is it not true that when the votes were pretty nearly counted out that the inspectors stopped counting the votes, poured all the tickets back, in a rude box, and then dispersed, and did not return until the next day I-A. Well, they did not get through counting out until the next day.
Q. Cannot you answer the question, Mr. Reynolds ?-A. I know they did not get through counting, and we had to go back next morning to finish counting.
Q. Where were the ballots left during the night 1-A. Well, I think Mr. Harris taken them down to the hotel with him. He was one of the officers.
Q. In what did he take them I-A. He took them in the box-the box that they were put in.
Q. What kind of a box ?-A. A ballot-box.
Q. Was not it a common candle-box-A. Well, I didn't examine particularly about that; it was just a ballot-box, such as we generally had.
Q. Did it have any lock to'it 1-A. Well, I don't know; I did not examine it sufficiently to tell about that, whether it had a lock on it or not; but it ought to have had if it did not.
Q. When they returned the next morning did they not pour all the votes out on the table 1-A. Well, they selected them out and put them at different places in different piles by themselves so they could get along and count them faster. Q. Were not all the ballots lying on the table at the same time 1-A. All of then ? Q. Yes, sir.-A. I don't think they were all out at one time.
Q. Were not most of the ballots lying on the table at the same time?-A. I think the majority of them were.
Q. How many ballots were there -A. In all ?
Q. Yes, sir.-A. I will have to make a calculation here. How many were there cast :
Q. Yes, sir; at that box.-A. Well, here it is, you can make the calculation.
Q. Well, to give it roughly 1-A. Mr. Lowe got four hundred and forty-one (441); twenty-two (22) off left four hundred and nineteen (419). Twenty-two Greenback votes. Wheeler one hundred and eleven. My recollection is that was the majority of the votes out on the table.
Q. Is it not true that when the majority of the votes were lying on the table, that they were sorted out in piles 1-A. Well, they sorted them so they could get along in counting. They sorted them out; that is, the Democratic votes were sorted out, and the others by themselves.
Q. Is it not true that they had pretty nearly counted out the vote the night before, before they stopped 1-A. No, sir; they lacked right smart of it.
Q. How many hundred had they counted out, do you think?-A. Well, I don't know; did not take any notice of that.
Q. Did they commence in the morning where they left off, or did they commence at the beginning -A. They counted the whole thing over, my recollection is about it.
Q. Were not people who were not election officers permitted to come into the room in the morning 1-A. Well, I was not there at the time, but I was there nearly all the time. There might one or two have come in.
Q. Were not people permitted to come into the room during the night, after you left there 1-A. After we left there?
Q. Yes, sir.-A. I don't know. I was not there; I left when the box left.
Q. Could not the room be easily entered 1-A. Well, I suppose it could ; that room! Yes, sir. Don't think it had any lock to it. I suppose any one could get in there that wanted to. But then that was after we left, you know. I don't know whether any one went in or not. The votes were taken down to the hotel.
Q. Was it not generally understood at that box that Joseph Wheeler was getting a large vote that day during the election ?-A. Well, I was not out much amongst the people; I was watching over the box, and did not go out but very little.
Q. Did not the election officers report that that was so 1-A. The general opinion was that he was getting over the Democratic vote there.
Q. Finally, on November the third (3d), when the vote was counted out, was it not shown that Joseph Wheeler had but one hundred and eleven (111) votes?
(Contestant objects to this question, because he has answered'it three times.) A. Yes, sir.
Walter W. Simmons, a supporter of and a witness summoned by William M. Lowe, testifies on January 4, 1881, p. 452:
Q. Did you have anything to do with holding of the Congressional election on November last 1-A. Yes, sir; I was supervisor at box number 2, Courtland precinct.
Q. You made out that report two days after the election, did you not1-A. I made it out the next morning after the polls were closed and put it in the office.
Q. Did you not state, Mr. Simmons, two or three times during the day, that Joseph Wheeler was getting a large vote at your box !-A. Yes, sir; I thought you were getting a larger vote than you really did get.
Q. You state that the objection made to the ticket was that it had numerals I-A. Yes, sir.
Q. Were not those numerals something besides the names of the persons to be voted for and the offices to which they were to be chosen
(Contestant objects to this question, because it calls for the opinion of the witness.) A. I suppose it is something besides the names of the electors.
Q. Is it not true, Mr. Simmons, that the inspectors commenced counting the vote, and that they then poured all the votes back in the box and dispersed for the night -A. Well, they counted until about 2 o'clock in the morning, I believe, and some of them discovered that they had made a mistake, and they just concluded they would bundle up, and commence and recount the whole box the next morning; Mr: Harris took the box, and went to the hotel that night and locked it up in the room with him, and met the next morning and finished counting.
Q. Didn't some of the inspectors or clerks get sick 9-A. One of the clerks got sick -Mr. Branch.
Q. When they met the next morning, were you present to see them count !–A. Yes, sir.
Q. Is it not true that they poured all the ballots on the table, and sorted them out! -A. I think they did; some one suggested that they could get through quicker by counting them that way; they poured them on the table, and sorted the tickets, to get the Republican tickets to themselves, and the Greenback tickets to themselves, and the Hancock Democratic tickets to themselves.
Q. Is it not true that this room where you held the election was an open room that people could enter at pleasure 1-A. Weil, I suppose they could if they had tried; it was a pretty shabby old concern; doors were kept closed, I believe, all the time until they closed up.
Q. You have been actively engaged in politics, have you not, in this last canvass ? -A. Yes, sir; I have taken a great interest in politics this last year. Q. You were a strong supporter of Colonel Lowe, were you not !-A. Yes, sir.
0. Mr. Simmons, did or not the friends of General Wheeler make the same kind of efforts, so far as you know, to secure the colored vote that friends of Colonel Lowe did 1-A. I suppose they did.
Q. No man's vote was refused because he was a colored man 1-A. Not that I know of.
Q. You stated, I believe, Mr. Simmons, that the inspectors counted the vote until 2 o'clock at night I-A. I think it was about 2.
Q. And then adjourned until the next morning; then they had another countI-A. Yes, sir.
Q. Were the votes that you say that were thrown out the same the night before that they were the next morning 1-A. Yes, sir.
Q. The box you stated was taken away by a Mr. Harris and left in his custody between the count at night and the count the next morning 1-A, Yes, sir.
Q. What were Mr. Harris's politics 9-A. Well, sir, he is a Democrat, I believe; always has been.
Q. Was he a friend and supporter of General Wheeler 1-A. Yes, sir; I believe he was.
Q. By General WHEELER. Don't you know he voted for Billy McDonald and for Houston 1-A. My opinion is that he voted for McDonald, but I don't know. My opinion is he voted for Houston for tax collector, too.
Q. Both of those men were opponents to the Democratic party, were they not!-A. Yes, sir,
Q. Is not it your opinion that Mr. Harris voted for Mr. Houston three years ago,
J. J. BEEMER, page 1128, testifies as follows:
Q. Please state your name, age, where you live, and how long you have resided there.—A. J. J. Beemer is my name; I am in my forty-first year; I live at Courtland; all my life, except six years in Huntsville, when I was a boy, and the time I was absent in the war. Q. Please state who were appointed inspectors of the election held at box No. 2 in Courtland on November 2, 1--0, for member of Congress and Presidential electors, and state their politics.-A. James Montgomery, an avowed Greenbacker; J. J. Beemer, an independent voter; and John H. Harris, also an independent voter. Q. Please state if you are well acquainted with the voters of Courtland precinct, and their political sentiments.-A. I think I am well acquainted with the voters of the Courtland precinct and their political sentiments. Q. For whom was James Montgomery and M. M. Butcher for Congress?—A. I know that James Montgomery was for Lowe, and my belief is that Butcher was also for
(). Is it true or not that when you first counted out the ballots after the polls were closed a mistake was made in the count, and that you then adjourned over until next day, and that Mr. Harris took charge of the box until you met next morning 2—A. It is true.
In answer to another question, Mr. Beemer testified, page 1129:
General Wheeler got between seventy-five and one hundred white votes at that box, and the colored men who voted for him were known to be for him.
T. H. Jones, page 1087, testified:
The politics of the inspectors at Courtland box No. 2 was as follows: One a Greenbacker, and the other two had been accustomed to vote split tickets. The evidence shows that there were no ropes put up, as required by law, and that the persons who were distributing Garfield and Wheeler tickets were, in most cases, close to the window, and saw the men hand in their votes, and the proof is positive and uncontradicted that Garfield and Wheeler ballots were voted which were not counted. Green Jones, pages 1065 and 1066, testifies that he was at Court. land box No. 2 all day November 2, 1880, working in the interest of Joseph Wheeler for Congress, and that he got twenty-five colored men to vote for General Wheeler on the Garfield and Arthur ticket. He testifies that he issued these twenty five tickets, and saw them put the tickets in the hands of the inspectors; that a great many colored men voted that kind of ticket at that box that day; that there were a number of persons, both white and colored, working with the colored people to get them to vote the Garfield and Wheeler ticket that day. T. N. Kirk swore that the colored men thought they had as good a right to vote for Wheeler as for Lowe, as long as both were on the Garfield ticket. (See pages 1067 and 1068.) Kirk also swore that he voted for Wheeler, and got ten other colored men to vote for him also at Courtlandt box No. 2. Joe Owens, page 1069, testifies as follows: I gave out seventeen tickets with the name of Joseph Wheeler on them, who promised to vote the ticket, and, I think, they all voted those tickets; but I know seven of them voted the Wheeler ticket for Congress, at Courtland box No. 2, because I saw them vote the tickets which I gave them. He testifies that all these men were colored men. Robert Beard, page 1072, testified that he got three colored men to vote for Wheeler at boxes 1 and 2 at Courtland, and that he voted for Wheeler himself; that a great number of colored men voted the Wheeler ticket; and that a number of persons, both white and colored, were