The court said:

The justice states in his certificate "that the examination, responses, and statements of said deponent were reduced to writing in my, and by the said deponent sworn to and subscribed in my presence, at the time and place aforesaid," &c. It is manifest that the want of the word "presence" after the word "my," where it first occurs in the certificate, was a mere clerical omission of the justice; and taking the whole certificate together it is evident that he meant to certify that the deposition was reduced to writing in his presence.

But it is argued that the original stenographic notes were written out in the presence of the notary public, and that this was a compliance with the statute. The authorities already cited are not consistent with this position. The object is the authentication of the testimony now on file with the Clerk of the House. And the agreement of the parties only extended to the substitution of the long-hand transcript of the stenographic notes, and did not waive anything but the signatures of the witnesses thereto. The parties made no agreement that the depositions in long-hand should be afterwards recopied by the contestant and his agents out of the presence of the notary, and that these papers should be forwarded, and the long-hand depositions made by the notary should be destroyed. The part of the agreement bearing upon this matter is as follows:

Fourth. That inasmuch as both parties intend to have the depositions of many of the witnesses taken in short-hand by a stenographer, which will render it impossible for such witnesses to subscribe to their depositions until the same shall be written out, which, in many instances, cannot be done for some time after such depositions shall have been taken; and inasmuch as the signatures of the witnesses in such cases could only be procured by requiring a second attendance of such witnesses at considerable inconvenience and expense to all parties interested; therefore, in all cases where a deposition is not subscribed to by the party making the same the signature of such witness is hereby waived.

The contestant, Mr. Mackey, states that this rewriting of the deposi tions was done, not by agreement of the parties, but by agreement between the notary, Hogarth, and himself. But to our minds this conduct of a public officer was a violation of his plain duty under the statute, to retain the testimony in his own custody until forwarded, and this was aggravated, not excused, by collusion between the officer and one of the parties without the knowledge or consent of the other party.

We think, therefore, that the depositions substituted by the contestant and his agents for the originals written by Hogarth should be suppressed.

We do not consider that the papers offered as United States supervisors' returns and the tabulated statement purporting to be made by the chief supervisor are admissible in evidence for the reasons following: 1. The statute, so far as supervisors outside of the city of Charleston are concerned, does not authorize or require such returns to be made by precinct supervisors. The act of Congress (sec. 2029, U. S. Rev. Stat.) prescribes that they

Shall have no authority to make arrests or to perform other duties than to be in the immediate presence of the officers holding the election and to witness all their proceedings, including the counting of the votes and the making of a return thereof."

It is only necessary to call attention to the opinions of the eminent men of both political parties who construed this section at the time of its passage as a measure of compromise between the Senate and House. Their views were expressed as follows:

In the Senate the provision was explained by Mr. Edmunds, one of the managers on the part of the Senate:

Mr. MORTON. I ask the Senator from Vermont if I understand correctly that this

simply makes the supervisors silent spectators, without even the power to challenge a vote?

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Mr. EDMUNDS. No, sir; they have no power to challenge a vote except that which belongs to a citizen under the existing laws. The House insisted upon having this provision put in as a means of composing their differences in the other body, to which we were forced to assent with a view to getting to an end. (91 Cong. Globe, 4495.)

The report of the last conference committee in the House, and the explanations of Mr. Garfield and Mr. Niblack, managers on the part of the House, and of other Representatives, are printed on pages 4453 to 4455 of volume 91 of the Congressional Globe:

Mr. GARFIELD. The effect of this is that the supervisors authorized by this act stand by and witness the proceedings of the election, and have the official right to stand by, so that, if frauds are being perpetrated, the Government of the United States may have as witnesses a member of the Democratic party and one of the Republican party to the facts in the case.

Mr. SHELLABARGER.

It seems to me, and I suggest it as an apprehension, that this strips these supervisors or inspectors of the power both of challenge and also of indorsing the certificates of election.

Mr. GARFIELD. That may be true; but even if it be true, the presence of these officers, appointed by a judge, acts as a moral challenge.

Mr. BROOKS. I understand that they have not the power to give certificates of election.

Mr. GARFIELD. I should say clearly not.

Mr. BROOKS. Nor have they any power to make any return.

Mr. GARFIELD. Nothing of the kind.

Mr. NIBLACK. Mr. Speaker, the particular amendment under discussion with regard to supervisors of election has been one of the most stubborn causes of difference between the two Houses that it has ever been my fortune personally to observe in connection with a committee of conference. We have spent, first and last, some twelve or fifteen hours in considering the amendments to this bill. The greater portion of the discussion of any serious character has been directed to this particular amendment. For most of the time I despaired of the committee being able to make a report which would meet the views of the majority of both Houses. From the first I announced the proposition that I could sign no report which recognized in any degree the principle of Federal interference in State elections. The power of these supervisors is reduced to that of mere official witnesses of elections, with no other power than to make complaint before the proper officers of the law, if they think the election laws have been violated. I think by allowing the bill to be voted on we can save not only an extra session, but the continuance of this one beyond nine o'clock this evening.

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Mr. KERR. Under the language of that amendment I think it is perfectly clear, as a question of law, that these two supervising witnesses will have neither right nor authority to sign, or to superintend, or in any way to modify or to change the return of the election. They may merely stand by and see how it is conducted.

2. No certificate of an officer is admissible in evidence unless he is required by law to make such certificate, for in such case only is it covered by the sanction of his oath. And matters not of record but of fact, technically called matters in pais, cannot be certified by an officer, but in such case the officer must testify as to the matters of fact.

3. The papers purporting to be the original returns of supervisors in this case were produced, according to the record of the case as printed, by the contestant, Mr. Mackey, and not by the chief supervisor, to whom they are alleged to have been made. If they are the original returns, it was a breach of official duty, which cannot be presumed against the chief supervisor, to allow them to pass from his custody into the hands of one of the parties to an election contest. In all cases where such returns are authorized by law it is made the duty of the chief supervisor either to keep them of record, as required by section 2026He shall receive, preserve, and file all oaths of office of supervisors of election, and of all special deputy marshals appointed under the provisions of this title, and all certificates, returns, reports, and records of every kind and nature contemplated or made requisite by the provisions hereof, save where otherwise herein specially directedH. Mis. 35-38

or in certain cases to forward the same to the Clerk of the House of Representatives, as required by section 2020:

And prior to the assembling of the Congress for which any such Representative or Delegate was voted for, he shall file with the Clerk of the House of Representatives all the evidence by him taken, all information by him obtained, and all reports to him made.

And section 2031 provides among his fees:

For filing and caring for every return, report, record, document, or other paper required to be filed by him under any of the preceding provisions, &c.

4. The written portions of five of the so-called original returns of supervisors-purporting to be the returns of Calhoun and Packsville precincts, in Clarendon County; of Hope Engine-house, in Charleston County; and of Branchville and Rowesville, in Orangeburg County-are in the handwriting of Mr. Mackey, the contestant, and the Congressional report of Fort Motte precinct, in Orangeburg County, also. And as to one of these that of Calhoun precinct, in Clarendon County-the figures do not correspond with the tabulated statement for the same precinct, purporting to be the statement of the chief supervisor, made from the returns filed with him; so that one or the other is false. In addition, none of these papers introduced as the original returns so filed by the precinct supervisors bear upon them any indorsement of their having been filed with the chief supervisor, with the exception of three of them (Record, pp. 207-210); and those three are not certified under seal, nor do they appear to have been introduced in evidence pursuant to any notice, or in presence of the notary or any of the opposite party at any taking of testimony in the cause.

5. The papers purporting to be the statements of the chief supervisor are not under seal, do not purport to be copies of records of his office, but simply a compilation of his own of figures taken from sundry papers, nor is there any proof accompanying them that the person making them is the chief supervisor.

THE CONTESTEE'S TESTIMONY.

An inspection of the manuscript testimony on file will show numerous erasures and interlineations, many of them in the handwriting of the contestant, Mr. Mackey. Mr. Charles E. O'Connor's affidavit shows that these changes were made after Mr. Dibble's election; and the contestant, Mr. Mackey, does not claim or pretend that Mr. Dibble had any notice of them.

Mr. Charles E. O'Connor, in his affidavit (p. 7), says:

The work of correcting this testimony was begun in or about the middle of July, 1881, and certainly not earlier than the middle of June of that year, and that it continued from time to time, with frequent interruptions, during the summer months. Deponent further says that this work was done solely upon the suggestion of the contestant, &c.

Mr. Dibble was elected June 9, 1881, and enrolled by the Clerk of the House of Representatives June 25, 1881.

The following is one of the numerous changes made in this part of the testimony. The inspection of the manuscript (folios 905, 906) shows that this was written out originally as follows:

Q. Was not the number of Republican tickets seventy-eight? When you first opened the box and counted the ballots in order to ascertain the whole number, did you not put the whole number of Republican and the whole number of Democratic tickets in separate piles?-A. No, sir; because we had such a large white vote.

It now appears in the manuscript, by means of erasures and interlineations, and is printed as testimony, as follows:

Q. Was not the number of Republican tickets seventy-eight ?—A. I think it was. The substituted answer" I think it was " is interlined in the manuscript in the handwriting of Mr. Mackey, and the answer originally written in the manuscript, together with the portion of the question to which it was responsive, entirely disappears by erasure.

We have, then, in this case the testimony of the contestee in an unfinished condition at the time of his death, and such testimony as had been then taken changed after Mr. Dibble's election, by the contestant, Mr. Mackey, and another not representing Mr. Dibble in any way, and without Mr. Dibble's knowledge or consent; and yet Mr. Dibble is called upon to defend his seat upon the basis of such testimony, upon a notice served upon him six months after his election, and after all these irregularities had been consummated. We cannot concur in such a determination.

II.

But, as we have already said, we think Mr.Dibble's rights are not to be affected in any way by this record in the case of Mackey vs. O'Connor. We have already given an outline of the facts connected with Mr. Dibble's admission to his seat, and have quoted the words of the resolution referring the credentials of Dibble and the record of the case of Mackey vs. O'Connor to the Committee on Elections, which was laid upon the table by the House, and have also shown that the House laid on the table the motion to reconsider the vote on that resolution.

Let us apply to these facts the principles of statute and parliamentary law which appear to us to be applicable thereto. And in this connection let us cite from our own recognized parliamentary compilation as to the effect of the motion to reconsider and lay on the table. Smith's Digest, page 292, concerning the motion "to lay on the table," contains this language:

In the House of Representatives it is usually made for the purpose of giving a proposition or bill its "death-blow"; and when it prevails, the measure is rarely ever taken up again during the session. If the motion to "reconsider and lie" follow this motion, and be carried, it can only be taken from the table by the unanimous consent of the House.

And again (Ibid., p. 293):

If a motion to reconsider be laid on the table, the latter vote cannot be reconsidered. (Journals 3, 27, p. 334; 1, 33, p. 357.)

Mr. Cushing, in his "Law and Practice of Legislative Assemblies," after showing the distinction between the English and American laws on the subject of legislative vacancies, proceeds as follows:

If it [i. e., a vacancy] occurs before the sitting or in a recess, and the new election takes place without the previous authority of the assembly, the existence of a vacancy must be determined upon when the member elected presents himself to take his seat.

In the history of vacancies in Congress, there is one case which in many respects resembles the present. In May, 1867, George D. Blakey and Elijah Hise were opposing candidates for Congress in the third Congressional district of Kentucky, and four days after the election Mr. Hise died. Mr. Blakey appeared before the State canvassing board, and claimed to have been elected. The board decided that Mr. Hise had been elected. Congress assembled thereafter on July 3, 1867; and on July 5, 1867, a memorial of Mr. Blakey was presented to the House

asking admission as a member from the said Congressional district, and the memorial and accompanying papers were referred to the Committee on Elections, who were instructed by the House, July 11, 1867, in relation to taking evidence in regard to the same.

On July 20, 1867, Congress adjourned until November 21, 1867. During this interval, and while the Committee on Elections had under consideration the claim of Mr. Blakey to the seat, a special election was held in the third Congressional district of Kentucky, under writs of election issued by the governor of Kentucky, to fill the vacancy occasioned by the death of Mr. Hise; and at such special election, held August 5, 1867, Mr. Golladay was elected, and on November 25, 1867, presented his credentials to the House.

An extended discussion followed. The distinguished chairman of the Committee on Elections, Mr. Dawes, after conceding the ordinary rule to be that charges touching "the legality of an election are matters which pertain to a contest in the ordinary way, and should not prevent a person holding the regular certificate from holding his seat," said:

I do not see how it is possible to apply the rules laid down there to this case, without foreclosing Dr. Blakey from any further investigation of the question of a vacancy existing at that time. (Cong. Globe, 1, 40, p. 783.)

Other members of the House took the position that Mr. Golladay should be seated prima facie, and that Mr. Blakey should be allowed to contest with him the right to his seat.

The House adopted the view of Mr. Dawes, and, instead of allowing Mr. Golladay to be sworn, referred his credentials to the Committee où Elections. Eight days afterwards Mr. Dawes presented the unani mous report of the Committee on Elections declaring that Mr. Golladay was entitled to the seat. (Cong. Globe, 2, 40, pp. 3, 56.) This report was adopted by the House, and necessarily recognized that the writs of election issued by the governor of Kentucky for the special election, were valid, even though the House had under consideration the ques tion of the existence of a vacancy at the time. For had the writ of election of the governor of Kentucky been prematurely issued, the elec tion would have been without legal sanction, and therefore invalid. And this decision of the House was not inadvertently rendered, for Mr. Blakey not only mentions in his memorial to the House that he had protested before the State authorities against the holding of the special election, but, in addition, reiterates it in his remarks before the House. But the House refused to recommit the report of the committee, or dered the previous question, by a vote of 102 to 22, and adopted the recommendation of the committee without a division. (Cong. Globe, 2, 40, pp. 57, 61.)

Now, to recapitulate. What principles are involved in this decision! The main doctrine is, that the right and duty of the executive of a State to issue writs of election to fill vacancies in the House, derived from article 1, section 2, of the Constitution of the United States, in advance of any adjudication by Congress on the question of vacancy occasioned by death, is to be exercised in contested cases as well as in ordinary cases, thus applying to such cases the same principles so early settled in the cases of Edwards (Clark & Hall, 92), Hoge (Clark & Hall, 136), and Mercer (Clark & Hall, 44). And while as to the matter of practice in the case of Golladay there was a difference of opinion as to whether the credentials ought to be referred to the Committee on Elections, in order to determine finally as to the existence of a vacancy before seat ing Mr. Golladay, who held the certificate, or whether Mr. Golladay should be sworn, and the right reserved to Mr. Blakey to contest his