Knowing that the subcommittee has examined the questions of fact with great thoroughness and care, I am disposed to adopt their conclusions upon them. I have, however, examined the evidence and heard the arguments upon the material issues of fact so far as to satisfy myself of the justice of those conclusions. It appears to me that aside from the questions of law urged as to the validity of the city ordinances relating to registration of electors, and on the assumption that they are authorized and valid under the Constitution of the United States and the constitution and laws of the State of Missouri, that the conduct of the official board of the city intrusted with the duty of revising the regis tration list were guilty of bad faith and of gross negligence at least, amounting to fraud, and even of actual fraud, in striking off most if not all of the names in question, who were thereby deprived of the privilege of casting votes for contestant, as they were ready and offered to do. It was such as to vitiate their whole action in that regard. And I therefore believe that the votes of all electors whose names were thus stricken off, and who appeared and offered to vote for contestant, should be counted for him.

Had the board acted fairly and impartially, and only erred in the exercise of an honest judgment, I should not be willing to go behind the registration list as prepared and left by them. The authority to strike off names already registered is limited any way to those who had died or removed.

In the view taken upon the point stated, it is unnecessary to go into the legal questions argued and referred to. I should ordinarily hesitate long, and deliberate with care, lest I might be mistaken, before I could decide against the validity of the city ordinances in question and under which the board of registration seem to have acted, and which have been apparently in force and acted upon in the city and State so long. But the question is raised and argued on both sides with great ability. And I am forced to the conclusion that the acts of the board in striking off the names of the parties in question was unauthorized, illegal, and void; that under the Constitution of the United States, article 1, section 4, the State legislature alone had power to prescribe the manner of holding elections, subject to alteration and regulations made by Congress. That this power includes the whole machinery of elections, registration laws, &c., is too well settled to require argument.

I am unable to find any act of the legislature of Missouri which prescribes registration as a qualification or regulation, and which was in force at the time in question and applicable to the city of Saint Louis. Apparently the legislature recognized this as the state of the law, and accordingly, as appears in the argument, passed an act to remedy the defect and provide for it in the year 1881. The charter of the city of Saint Louis must be confined in its provisions to matters municipal, and it would be a great stretch of language and principles of law to hold that it extended beyond that and embraced authority to regulate the manner of holding elections in matters of State and Federal officers, so the city authorities could establish registration laws and prescribe the qualifications of voters and limit the right of exercising the elective franchise. It is more than doubtful whether the legislature, which is alone invested with authority of this kind, could thus delegate it any way. I do not propose to go into a more minute and elaborate discussion of the point. My conclusion is that contestant was elected.

Mr. MILLER, from the Committee on Elections, submits the following

SUPPLEMENTARY REPORT

IN THE ELECTION CASE OF SESSINGHAUS vs. FROST:

In reporting the views of Mr. Ranney, as expressed in committee, there were certain errors in the statement of them. They, as appended to the report made, are hereby corrected so as to read as follows, viz:

VIEWS OF MR. A. A. RANNEY, AS EXPRESSED IN COMMITTEE.

[At the request of the member of the committee reporting this case, Mr. Ranney furnished him with a copy of his views submitted to the full committee, and which governed him in voting in the committee to award the seat to Mr. Sessinghaus. They state the law applicable to this case so succinctly that we append them :]

I have examined, with as much care as able, both the report of the subcommittee and the arguments made by the respective counsel upon the special legal question ordered by the committee to be reargued."

Knowing that the subcommittee has examined the questions of fact with great thoroughness and care, I am disposed to adopt their conclusions upon them. I have, however, examined the evidence and heard the arguments upon the material issues of fact so far as to satisfy myself of the justice of those conclusions. It appears to me, aside from the questions of law involved, that the official board intrusted with the duty of revising the registration lists were guilty of fraud, or a violation of duty equivalent to fraud in its operation, in the action taken, and that their deputies and agents, for whose conduct they were responsible, practiced actual fraud, and that this vitiates what was done in the premises in striking off the names of persons previously registered and who were still alive and had not removed.

Had the board acted fairly and impartially, and only erred in the exercise of an honest judgment and under competent authority, I should not be willing to go behind the registration list as revised and left by them.

In the view taken upon the point of law stated, it is unnecessary to go into the legal questions argued and referred to. I should ordinarily hesitate long and deliberate with care, lest I might be mistaken, before I could decide against the validity of the city ordinances in question and under which the board of registration seem to have acted, and which have been apparently in force and acted upon in the city and State so long. But the question is raised and has been argued on both sides with great ability. And I am forced to the conclusion that the action of the board in striking off the names of the parties in question was unauthorized, illegal, and void; that under the Constitution of the United States, article 1, section 4, the State legislature alone had power to prescribe the manner of holding elections, subject to alteration and regulations made by Congress. That this power includes the whole machinery of elections, registration laws, &c., is too well settled to require argument.

I am unable to find any act of the legislature of Missouri which prescribes registration as a qualification or regulation, and which was in force at the time in question and applicable to the city of Saint Louis.

Apparently, the legislature recognized this as the state of the law, and accordingly, as appears in the argument, passed an act to remedy the defect and provide for it in the year 1881. The charter of the city of Saint Louis must be confined in its provisions to matters municipal, and it cannot be held to extend beyond that. It is more than doubtful whether the legislature, which is alone invested with authority of this kind, could thus delegate it any way.

It would seem, in any event, that the authority to strike off names already registered was limited to those persons who had either died or removed. But the board went beyond this, and did not proceed according to law and by fair and legal means to ascertain and determine what was intrusted to them.

Mr. MOULTON, from the Committee on Elections, submitted the following as the

VIEWS OF THE MINORITY:

I.

The first question presented by the record in this cause is a motion to suppress the depositions taken for contestant.

The motion and the affidavits will be found on pages 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of the Record, and are printed and attached to this report as an addenda.

This motion was before the full committee in the month of January, 1882, and as the testimony was not then in print the motion was passed upon "without prejudice," leaving the question to be investigated and decided after the depositions and all papers pertaining to the motion to suppress should be printed.

The gist of the motion is stated in the fourth ground, which is as follows (page 13):

IV. That all of said depositions since the taking thereof have been withdrawn from the care of the notary by one of the counsel for contestant, and were in his office part for many days and part for many weeks, and were by him mutilated, changed, and altered.

It is quite clear that the law is scrupulously particular in demanding that the spotless integrity of depositions shall be preserved. It is sensitive to the highest degree in considering a complaint such as we find here. Even in mere matters of form it demands the most exact compliance with such formalities as the various statutes may require. We cite a few cases in which motions to suppress depositions were sustained where mere formal rules were disobeyed:

2. Washington Circuit Court Report, p. 356: "A commission which had been executed and returned was set aside because it had been opened by one of the officers of the government before it came into the hands of the clerk." (United States vs. Price's Administrator.)

Shankwiker vs. A. Reading (4 McLean's Reports, p. 240): "The law requires the deposition taken under act of Congress to be retained by the officer until he deliver the same into court, or shall, together with a certificate of the reasons for taking it," &c. Read vs. Thompson (8 Cranch, 70-J. Story): "Independently of all other grounds, the court are of the opinion that the fact of the depositions not having been opened in court is a fatal objection."

1 Brown's Admiralty Reports, p. 66: "Though a deposition be taken under a stipulation, waiving all objections as to the form and manner of taking, it must still be returned to court in all respects as required by law.

The charge of the motion, however, goes not only to form, but to substance, and claims that the worst of bad faith was exhibited by the attorney of the party in whose interest the depositions were taken. The court in Beverly vs. Burke (14 Georgia, 70), says:

In deciding as we do we establish no new rule. We hold that the case presented to us falls within a rule already well settled, and that rule simply is that there must be no circumstances of unfair advantage obtained by one party over the other in having testimony taken by depositions. Many written cases may be found in

*

*

which it has been held that such depositions should always be taken in good faith. I content myself with referring to but one. In Beau vs. Quinby, 5 New Hampshire, 98, the court says, "The invariable rule by which this court is governed in the admission of depositions is not to receive any which have not been taken fairly and with the utmost good faith.

It appears from the affidavits in the Record (pages 13 and 15) that counsel for contestee having heard that one of the attorneys for contestant had obtained and manipulated the depositions resolved to ask him if the information was true that he had obtained the depositions from the notary.

The answer of the attorney was, "Oh, no; I did not have the testimony; I had only my depositions of one day, and that was the day the city ordinances were introduced; I wanted to see if they were reported correctly."

The question that was asked was by one who had the right to ask it, and it demanded a full and fair answer. The good faith required in the taking of depositions demanded even more than this.

Papers of such importance should never leave the custody of the of ficer without the full knowledge and consent of both parties.

Here not only was there no such consent given by counsel for contestee, but he had not even the slightest intimation that the notary had parted with the depositions. Both the notary and the attorney to whom he gave the depositions carefully concealed from him all information as to the truth of the facts, although in response to the direct inquiry of counsel for contestee, pages 13 and 14, the attorney made answer, "Oh, no; I did not have the testimony; I had only my depositions of one day, &c., yet on pages 15 and 16 we find these letters.

EXHIBIT A.

FRANK KRAFT, Esq., or HIS BROTHER:

ST. LOUIS, Aug. 4, 1881.

I have just returned from the North, and want more manuscript to work up. I return by messenger the testimony taken Feb. 1st, 2d, and 3d.

Please send me by bearer (or, if you are not at home, by messenger, as soon as possible) the testimony for six or eight days following the 3d of Feb. I don't know what dates they may be, for a Sunday probably intervenes. I guess you had better send me 8 days' testimony, for I want to work pretty steady on it now.

Yours, truly,

EXHIBIT B.

L. S. METCALFE, JR.

ST. LOUIS, Aug. 8, 1881.

Mr. CRAFT:

DEAR SIR: I return you testimony taken Feb. 4th and 5th. I want to retain that for Feb. 7th for a few days, as I have a copyist at work copying names from it. Will return it when I return next batch. Please send me testimony for at least six days, and, if you can, eight days. I finish it up so fast that it will keep me sending all the time, and oblige

Yours, truly,

L. S. METCALFE, JR.

EXHIBIT C.

ST. LOUIS, Aug. 18, 1881.

Mr. CRAFT: I send you by messenger the testimony taken Feb. 7, 8, 9, 10, 11, and 12. That is all I have received, except that for Feb. 14. The latter I am on, and will retain until I return next batch. Please send by bearer, or as soon thereafter as possible, testimony for the following eight or nine days; that is, Feb. 15, 16, 17, 18, 19, 21, 22, and 23; and oblige

Yours, truly,

When does Frank return?

METCALFE.

The facts here stated are so thoroughly established that no attempt even has been made to dispute them.

They appear to us, in considering a question such as is before us, to be of fatal importance to this controversy.

But the affidavits supporting this motion go farther. It appears that the attorney not only had possession of all of the depositions, but he wrote on them.

In his own affidavit, in speaking of the writing proved to have been made by him, he says he "merely made marginal suggestions" (page 21).

These "mere marginal suggestions" were in the matter of names and localities, which in this, as in most Congressional contests, constitute a very important issue.

If the "marginal suggestion" was left unheeded that fact might have lessened the alarm which such manipulation of the depositions created, but the direction given by the attorney in his "marginal suggestions" was invariably and blindly followed by the notary, as appears from his final affidavit (page 25).

Lyne S. Metcalfe, jr., importuned me to let him have the testimony itself, as transcribed, and I did give him possession of it for review and correction of the spelling of proper names. I trusted to his integrity to write correctly the names of persons and localities as given by the witnesses. I could rely on my notes of testimony in all respects but this, and hence I took Metcalfe's written suggestions, believing when I adopted them I was giving names aud localities as they were given by the witnesses on the stand.

The notary swears that he could rely on his notes of testimony in all respects but those in which the attorney was permitted to direct changes.

Without submitting these changes to the attorney for contestee, or suggesting that any are to be made or any have been suggested, he changes in every instance the testimony as written to conform to the ex parte "marginal suggestion."

It appears to us that the notary in the counter-affidavits cannot swear that the testimony transmitted is the testimony as given, when he also swears that he could not rely on his notes of testimony in the very vital matters he made changes at the attorney's ex parte request.

The subcommittee in January appointed a committee, consisting of Davis, of Missouri, and Ritchie, of Ohio, to examine the depositions to ascertain if it was a fact that contestant's attorney had written upon them and made changes, as charged.

Each took a portion of the very voluminous depositions, and found the fact to be true that he had written upon them.

Mr. Davis, in a hurried examination, found over one hundred instances of Metcalfe's marginal writings, and in each and every instance the body of the testimony was altered to conform to the marginal direction.

H. Mis. 35-26