GEORGE M. BUCHANAN vs. VAN H. MANNING.

SECOND CONGRESSIONAL DISTRICT OF MISSISSIPPI.

Contestant in his notice sets out thirteen grounds of contest. Contestee challenged the sufficiency of the allegations of said notice and insisted the same ought to be dismissed.

Held, That all the allegations in the notice of contest are insufficient. [The committee, however, examine the case, preferring not to rest a decision upon the sufficiency of the pleadings, "for if the testimony taken in the case develops the fact that the sitting member was not elected, it would be our duty to so report, although the contestant might not be entitled to his seat, having failed to comply with the law with respect to the sufficiency of his notice." Held, That one precinct should be rejected because contestee's party friends fired a cannon in close proximity to the polls, and kept it up for quite a while; another precinct should be rejected because the ballot-box was stuffed; and others because of the exclusion of United States supervisors of election from the polls and the counting of the ballots. ]

The House adopted the majority report.

JANUARY 29, 1883.-Mr. CALKINS, from the Committee on Elections, submitted the following

REPORT:

A majority of your committee, to whom was referred the above-entitled contested-election case of the second Congressional district of Mississippi, having had the same under consideration, beg leave to report:

There were three candidates voted for at the November election, 1880, in this district. The returned vote from the various counties composing the district was as follows: Manning, 15,255; Buchanan, 9,996; Harris, 3,585.

The district is composed of Union, Tippah, Benton, Marshall, La Fayette, Yalobusha, Panola, De Soto, Tate, and Tallahatchie Counties. This contest was begun by the contestant, George M. Buchanan, against the sitting member, Van H. Manning, and in his notice of contest he alleges the following grounds:

1st. That in a portion of the counties comprising said district such persons were not appointed, neither was such representation given to the different political parties in said counties, in the appointment of county commissioners of election, as was designed and required by law.

2d. That in a portion of the counties comprising said district, election districts were abolished and other election districts established, without complying with and in violation of law.

3d. That in a portion of the counties comprising said district the registration of voters was not conducted as required by law, thereby depriving a large number of persons (of lawful right) of the privilege of registering and voting.

4th. That at a large number of voting places in said district, in the appointment of inspectors of election, such persons were not appointed, nor was such representation given (in making said appointments) to the different political parties as was designed and required by law.

5th. That in several of the counties comprising said district a large numberof persons lawfully entitled to register were refused registration, and that the registration

and transferring of voters was discontinued many days prior to the time contemplated by law, thereby depriving a large number of persons, lawfully entitled to register (or to transfer), from the right of registering, and transferring and voting; and that in a portion of said counties the registration books were for a time removed from the place designated by law for their keeping, thereby depriving a large number of persons (of lawful right) of the privilege of registering (or transferring) and voting.

6th. That at a large number of voting places in said district many lawful voters were not permitted to vote, their votes having been tendered and rejected by the inspectors of election; that such unlawful interference and hinderance was permitted and practiced (such as is specially forbidden by law) as to obstruct and confuse the voters in the act of voting, or to deceive and prevent a large number of voters from delivering their ballots at the proper voting places; that a large number of persons were permitted to vote for you who had no legal right to vote.

7th. That at many of the voting places United States supervisors of election were not permitted to exercise the duties of their office, being prevented therefrom by the unlawful interference of other officers of election, or from other sources, in violation of law, and to such an extent as to prevent their ascertaining the result of the election and from performing other duties required of them by law; that no separate lists of the names of voters were kept by the clerks of election, as was required by law; that the polls were not opened at the time required by law, were not kept open continnously from 9 a. m. till 6 p. m., as required by law, and that upon the closing of the polls the counting of the vote and making up of returns was not done at the voting places nor at the time required by law.

8th. That at many of the voting places ballots were received and counted that were not lawful ballots in form and print; that inspectors of election rejected and refused to count ballots that were lawful after the same had been lawfully deposited in the ballot-boxes; that inspectors of election (with knowledge of the fact at the time) permitted ballots to be voted that were not lawful ballots; that during the hours prescribed by law for voting voters were harassed and disturbed in such manner as to prevent their voting in a free, fair, untrammeled, and peaceable manner.

9th. That the names of a large number of legally registered voters were not placed upon the poll-books (by the officers whose duty it was to place said names on said books) used at many of the voting places, and that in consequence thereof said legally registered voters were not permitted to vote, their votes being refused by the inspectors of election, said inspectors giving as a reason for such refusal to receive such votes that the names of the parties applying to vote were not on the poll-books.

10th. That the entire vote polled and counted and returned at a part of said voting places was unlawfully rejected and thrown out (and not counted) by the county commissioners of election on making up their returns of the total vote of the county.

11th. That at a portion of the voting places the ballot-boxes were not opened in public when the polls closed, nor was the vote counted in public nor at the time required by law to be counted; that in making up the returns a large number of ballots were counted as having been cast for you, when in truth and in fact such ballots were cast for other persons, or were ballots placed in the boxes in a manner not authorized by law.

12th. That at many of the voting places a much larger number of votes were returned as having been polled than were actually polled at said voting places; that at many of the voting places the poll-books for said places unlawfully contained the names of a large number of voters, which voters had no right to a vote at such voting places, but resided in other election districts, and that the names of said voters also appeared on the poll-books of the voting places of election districts to which said voters of right belonged.

13th. That at many voting places the election was conducted in many respects in utter disregard of law and the rights of voters; that the registration books and the poll-books of a portion of the counties and election districts in said district were at divers and sundry times not in the custody and keeping of the proper lawfully constituted officers, but were on divers and sundry occasions in the care and possession of persons not lawfully entitled to such care and possession; that at a portion of the voting places lawful ballots that were cast for me were not counted for me, but were (unlawfully) counted as having been cast for you, and were so returned by the officers of election; that there were a greater number of legal voters of said district who voted (or who offered to register and vote), and who were unlawfully prevented therefrom, who desired me as their Representative in Congress than there were who desired you as their Representative in Congress from said district.

To this notice of contest the sitting member files exceptions and answer as follows, to wit:

To said notice I make the following an swer, to wit:

First answer. 1st. Protesting against the truth of the allegations in said notice, I object and say that said notice is so insufficient and defective that I need not deny or

admit the allegation therefor, for the reasons, to wit, said notice does not specify particularly the grounds upon which you rely and gives no reasons for failing to do so. 2d. The allegations are only conclusions of law and general averment of wrongdoing in some undefined portions of the district, by unnamed election officials of precincts not specified, in unnamed counties, or by persons not named or described, and in places and by means not specified, and in violation of laws and the rights of others not designated.

3d. Your allegations are so vague and uncertain that I am not informed as to the persons or officials whom you accuse of crimes, nor where committed, nor do you aver that such wrongdoings were not instigated by you, or that they were known to or acquiesced in by me, or that the result of the election was changed by reason of the matter set forth.

Second answer. 1st. Without waiving any objection to the manifold and vital defects of said notice, but reserving all benefit and advantage thereof, I deny each and every ground of contest set forth in said notice, and deny each and every allegation therein contained, and aver that throughout said Congressional district a free and fair election was held in all respects, except that in the county of Marshall, and in other counties, at every precinct, divers colored voters who wished to vote for me for member of Congress were deterred and prevented from doing so by reason of the threats of personal violence and other means of intimidation used and employed by other colored people, the neighbors of such voters, the names of all of whom are unknown to me, being instigated thereto by those who advocated your election, whereby I received less votes by one thousand or more than I otherwise would and all such voters by means of such intimidation were induced, contrary to their wishes, not to vote at all or vote for you, and thereby the great majority of votes that I should have received more than you at said election was reduced to the number of about five thousand two hundred and fifty.

Third answer. I charge and aver that you have made the wholesale charges of all kinds of crime and irregularities contained in your said notice without specifications of persons or places, not because you had reason to believe that any one of them had been committed to your injury, but with the deliberate purpose to evade the limitation of the statute and to speculate upon any future discoveries of evidence, and so you have made unlawful, vexatious, and fraudulent use of the notice and process authorized by statute, and the same should be quashed and dismissed.

It will be noticed that the sufficiency of the contestant's allegations in his notice of contest were challenged by the contestee in the beginning, and have not been waived; on the contrary, the contestee has insisted that the allegations in the notice of contest were entirely insufficient, and that the same ought to be dismissed for that reason.

It becomes necessary, in the first place, to pass upon the sufficiency of the contestant's notice. The first specification relative to the representation of the different political parties on the board of county commissioners of election calls in question the acts of the governor of the State in his appointment of the commissioners of election.

The machinery of elections by the Mississippi code is placed in the hands of the governor. He appoints the county commissioners of election, who in turn appoint the precinct election officers. The precinct officers make return of the vote cast in the different precincts to the county board, who in turn make their report to the secretary of state.

By section of the Mississippi election law the different political parties are to have representation on said board. It ought to be carried out in good faith, and the different political parties ought to be represented on the election board. It is a duty incumbent upon the executive to see that this provision of law is carried out. It has been found in many of the States of the Union that a provision in the election laws similar to this is a safeguard against frauds and ballot-box stuffing. The second ground alleged by the contestant is that certain election districts were abolished and others established without complying with and in violation of the law.

This allegation is clearly insufficient, as being too vague and general. It would have been an easy matter to have named the precincts, and pointed out how the acts complained of tended to prevent a fair election. H. Mis. 35-19

The third allegation is that in a portion of the counties comprising the Congressional district the registration of voters was not conducted as required by law; that large numbers of them were deprived of the privilege of registration.

This allegation is likewise uncertain and vague, and wholly insufficient.

The fourth allegation is a repetition of the first, except that it applies to the precincts or voting places, and not to the counties, and need not be further noticed.

The allegation in the fifth ground of contest is that in several of the counties comprising the district persons entitled to register were refused registration; that the registration was discontinued prior to the time contemplated by law; and that in some of the counties the books were removed from the place designated by law during the registration; that in consequence thereof persons were deprived of the right to register. This allegation is too general. The particular places and the acts complained of should have been specifically set out. The same may be said with reference to the sixth allegation in the notice of contest.

The eighth ground of contest challenges the form and print of the tickets, but it is not pointed out specifically in what the illegality consisted. And the ninth, tenth, eleventh, twelfth, and thirteenth grounds of contest are open to the same objections.

The seventh ground of contest alleges that at many of the voting places United States supervisors of election were not permitted to exercise the duties of their office, and were prevented therefrom by unlawful interference by the other officers of election (we presume State officers). This charge is general, and it does not specify any particular voting place in the district where these acts occurred; but, perhaps, if any such unlawful interference is shown to have existed at any of the voting places, the committee would be justified in considering the allegation amended so as to make it conform to the proof, unless it were shown that thereby an injustice because of the insufficiency had accrued to the contestee.

This disposes of each of the allegations of contest, and with the single exception stated, under the uniform rulings of this committee and the House, the notice of contest would be held clearly insufficient. See Duffy vs. Mason, Forty-sixth Congress, and cases there cited.

We prefer, however, not to rest our decision of this case upon the sufficiency of the pleadings, for if the testimony taken in the case develops the fact that the sitting member was not elected, it would be our duty to so report, although the contestant might not be entitled to his seat, having failed to comply with the law with respect to the sufficiency of his notice.

If it be shown that there was an unlawful interference with the United States supervisors of election whereby they were prevented from discharging duties which are committed to their hands by the law of Congress, it would undoubtedly be our duty to set aside the election at such precincts. The law of Congress in respect to Congressional elections must be obeyed by the people, and nothing will tend so much to bring this Government into disgrace as to allow its will to be nullified and its officers overawed and prevented from performing their duty. One of the most sacred duties which this House owes to the people is to see to it that its laws are enforced and obeyed. The supervisors of election are the eyes of this House. Through them it can scrutinize every general election. Fraud of all kinds can be detected, and ballot-box stuffing can be stamped out.

This Government is founded upon the will of the majority. A majority is one more than half. When this is ascertained it is just as binding as if maintained by a larger preponderating popular expression, and for the purpose of maintaining the right of the majority to rule the supervisors' law ought to be obeyed and enforced with scrupulous care. We now proceed to examine the supervisors of election appointed in this Congressional district.

DE SOTO COUNTY.

W. J. Butler was examined as a witness and testifies that he was a United States supervisor of elections for Lake Cormorant voting place, in said county. His testimony is found at pages 11 and 12 of the Record. We have examined his testimony and find no charge of fraud, intimidation, or ballot-box stuffing.

Charles Scott, one of the inspectors of that precinct, testifies that everything was peaceful and quiet on the day of election. (Page 13 of the Record.)

L. C. Clay, United States supervisor of Oak Grove precinct, De Soto County, testifies to but one fact which is material, and that is that there were seventeen colored men and one white man refused the right of voting because they were not registered. (See page 26 of the Record.) Felix Davis, another supervisor of election, for Horne Lake precinct, De Soto County, testifies to but one material fact, which is that one James Brooks, a Democratic inspector, took the ballot-box, after the ballots were closed, away with him and had it three-quarters of an hour out of the sight of the supervisor, when it turned up at Mr. Holliday's residence, some distance from the balloting place, and after supper proceeded to count the ballots; that the tickets on top of the box when opened all seemed to be Democratic tickets. During the counting considerable confusion ensued in consequence of suspicious acts on the part of the Democratic inspectors, and while the box was open a good many bystanders gathered around it and prevented its being scrutinized by this officer. They then proceeded to count the tickets, five at a time; at the close of the counting it appeared that there were 205 Democratic tickets, 130 Republican, and no Greenback. Witness testifies that during the counting he saw two Greenback tickets, which were taken from the box by a Democratic inspector and again put back in the box, but were not counted. He also testifies that there were 35 or 36 persons who offered to vote and were refused because they were not registered, and that there were about 75 or 100 Republicans left the polling place without voting because of the tardiness with which the officers discharged their duty, and the vexatious manner in which the time was wasted in asking questions and the like. He also testifies that he was abused by one H. M. Douglass, one of the officers of election, for being a Radical, and threats were made against him. That there were four or five men continually around the box during the count; that they were swearing and exhibited their pistols in a threatening manner. (See pages 31 and 32 of the Record.)

Silas Turner, one of the inspectors, in a measure corroborates the testimony of Mr. Davis. (See page 33 of the Record.)

C. M. Haynie, supervisor for Olive Branch precinct, De Soto County, testifies that 62 Republican voters were refused the right to vote because they were not registered, and that three Democrats and three Greenbackers were likewise denied the right to vote for the same reason at that precinct. (See Record, page 34.)