DIGEST OF ELECTION CASES. FORTY-SEVENTH CONGRESS, FIRST AND SECOND SESSIONS. PAUL STROBACH vs. HILARY A. HERBERT. SECOND CONGRESSIONAL DISTRICT OF ALABAMA. Contestant claimed among other things that the vote of a county should be thrown out because the proper officers failed to give notice of the election, and appoint managers; and that a number of votes were counted for Herbert, contestee, which were spelled Hebert. Held, That where the statutes of a State provide that when for any cause managers and other officers of election are not appointed, the qualified electors present may elect them; and it appears that this was done and an election held at the time and place fixed by law, such vote of such county must be counted. That as to the ballots printed Hebert, the evidence shows that they were printed so by mistake of the printer, that no person of like name was then being voted for or was a candidate, and that the ballots were intended to be cast for Herbert, and must be counted for him. The House adopted the report. JUNE 27, 1882.—Mr. RANNEY, from the Committee on Elections, submitted the following REPORT: The Committee on Elections, to whom the above cause was submitted, beg leave to report that they have examined with care the testimony in the case and the able and elaborate arguments submitted, and they have come to the conclusion that the contestee is entitled to the seat he holds. Your committee do not deem it necessary to enter into any detailed discussion of the case. A few statements will show sufficient grounds on which to rest the conclusion they have reached. The contestee in his brief claims that after making allowance for, and giving full effect to, all the evidence in the case he is elected by 3,357 votes. Contestant is represented by Abraham & Mayer and Robert G. Ingersoll. Messrs. Abraham & Mayer claim in their brief that Mr. Strobach is elected by 938 votes. This majority is obtained by making many allowances and deductions which they contend are justified by the evidence. Your committee do not wish to be considered as approving or disapproving the positions taken by counsel, which are not specially discussed. It is sufficient for the purposes of this case to notice two of the items in the count made by Messrs. Abraham & Mayer. They throw out the vote of Escambia County, by which contestee is made to lose a majority, as given by the returns, of 634, and they count off from Herbert 1,190 votes in Pike County, on the alleged ground that Herbert's name was spelled Hebert instead of Herbert in this number of ballots. As to Escambia County, by the law of Alabama it is the duty of the sheriff, judge of probate, and clerk of the circuit court to give notice of an election and appoint managers. This duty the sheriff, judge of probate, and clerk of the circuit court of Escambia County failed to perform. But by the statutes of Alabama it is provided that when for any cause managers and other officers of election are not appointed, the qualified electors present may elect them. It appears that this was done and the election held; and it further appears that ou the 30th day of October, 1880, the chairman of the Congressional executive committee of the Democratic party gave contestant notice that this course would be pursued, and invited him to name the persons he desired as managers to represent them at the different boxes. Under these circumstances, as the law is well settled that when time and places of holding an election are fixed by law no notice by the officials is essential, your committee can see no good ground upon which to exclude the vote of Escambia County. This conclusion derives additional weight from the fact that contestant in his notice of contest made no charge against the legality of the election as held in Escambia County. As to the alleged misnomer in Pike County, your committee find that the evidence does not establish that more than fifty votes were cast in which Mr. Herbert's name was spelied Hebert. They further find that these ballots were intended to be cast for Herbert; that they were printed Hebert by mistake of the printer; that no person of like name except contestee was being voted for or was a candidate, and they believe that under the law and the precedents these votes were rightfully counted for contestee. Indeed, Mr. Ingersoll, one of contestant's counsel, admits they should be so counted. If we then restore to contestee his majority in Escambia, 634, and the votes taken from him in Pike, 1,190, he gains from these two items alone, on the count of Abraham & Mayer, 1,824. Deducting from this sum the majority claimed by Abraham & Mayer, 938, gives Herbert a majority of 886. Having reached this substantial majority by making these two corrections in the calculation of Messrs. Abraham & Mayer, we deem it unnecessary to examine whether the other claims to allowances and deductions made by them are well founded. In the second brief of Mr. Ingersoll for contestant he admits that Mr. Strobach's majority is only 463. In the estimate by which he reaches this conclusion he also deducts from Herbert his majority in Escambia County, to which the committee have decided contestee was entitled. Restoring simply the vote of this county and making no further corrections in Mr. Ingersoll's estimates, Herbert is elected by the difference between 463 and 634, say by 171 votes. But there are other claims put forward in behalf of contestant, in Mr. Ingersoll's brief, which we think equally untenable. He deducts 177 from Herbert at Manningham, Butler County, and 164 at Spring Hill, Butler County. The vote at these boxes is not assailed in the pleadings or by the evidence further than by a comparison with the census returns. This comparison does not show that the vote was unduly large, but simply that Herbert received more than the white vote and Strobach less than the colored vote. Your committee cannot consent, for such reason as. this, to disturb the returns of the regularly constituted authorities. The restoration of the returns of these boxes, in addition to the vote of Escambia, would leave the majority for the contestee 512, admitting every other claim made by counsel for contestant. We also think it equally clear that the evidence does not establish that 300, as is claimed for contestant in one count, or 275 votes, as is claimed in the other, were taken from contestant and added to contes-tee at box 2, C. H,, Montgomery County. Denying this claim would further increase the majority of contestee by 550 votes in one count and 600 in the other. But your committee do not in any manner mean to indorse or agree to the justice of all the other claims set up for contestee. They simply deem it unnecessary further to examine them, having reached the conclusion by the examination of a few of the items of contest that contestee is duly elected. Contestee would seem to have been elected by a much larger majority than either of those given above, but they have adopted as the readiest mode of reaching a conclusion the plan of examining only a few of the items claimed by contestant's counsel. This examination, resulting as is shown above, demonstrates that, conceding, for the sake of argument, everything else claimed by the able counsel for contestant, the contestee was elected by a decided majority. Having reached this conclusion, your committee do not deem it essential that they should inquire further into the matter, as the precise majority is immaterial. The only doubt which the committee has had in regard to this case is whether the irregularities and frauds alleged and appearing in evidence were not sufficient to render the election of contestee void. Contestant has arrayed the schemes of fraud conceived and executed in the election held in August, 1880, and claims that the same practices were resorted to in the November election of that year. The committee have scrutinized closely the proof and evidence in this regard, and are impressed with the fact that this seems to have been so to a considerable extent. But applying the rules of law which obtain in election cases, it is not satisfactorily proved that there was any such general scheme of fraud which appears to have been successfully practiced in a sufficient number of cases as to change the general result. The statute law of the State of Alabama has also been arraigned as wholly insufficient and inadequate to secure an honest election, and as a safeguard against fraudulent practices which seems to be so rife in that State. With this the committee have nothing to do, as a general principle. But it may be permitted to say that the charge seems to be true to a lamentable degree. The law seems to be quite severe as against the elector. But as regards the officers and managers of election, there appears to be no adequate provision to insure fidelity and honesty of action, or to punish derelictions of duty. The committee have felt bound, however, to follow the law as it stands. The committee unanimously recommend the adoption of the following resolution: Resolved, That contestant be allowed to withdraw his contest without prejudice. ALGERNON A. MABSON vs. WILLIAM C. OATES. THIRD CONGRESSIONAL DISTRICT OF ALABAMA. Contestant served notice of contest on contestee on December 8, 1880, and contestee filed his answer on January 5, 1881. On February 1, 1881, contestant commenced taking testimony and took the depositions of eight witnesses, all apparently on the same day. No other witnesses appear to have been examined for contestant. On March 3, 1881, contestee took the depositions of witnesses in reply. This was all the evidence adduced, except some certificates. In January, 1882, the clerk of the Committee on Elections served on contestant notice to file his brief. On the day designated for filing the brief, contestant's attorney appeared before the committee and applied for one week more in which to file same, which was granted; and at the expiration of that time contestant appeared and applied for further time in which to take further testimony, and filed an affidavit in support thereof. This motion was denied for reasons stated. Afterwards contestant filed a supplemental affidavit covering some of the objections pointed to the former. Held, That the application came too late; that parties should be bound by a reasonable degree of diligence; that it would be dangerous to establish a precedent allowing parties to contests after submitting their case to ascertain the grounds upon which he had been overruled, and to then supplement his application by a new affidavit, avoiding the decision, and thus open up the case again. The House adopted the majority report. APRIL 7, 1882.-Mr. CALKINS, from the Committee on Elections, submitted the following REPORT: The Committee on Elections, to whom was referred the above-entitled_contested-election case, have had the same under consideration, and beg leave to make the following report: The case was referred by the full committee to a subcommittee to read the proofs and hear the arguments and make a report thereon. Mr. Atherton, from the subcommittee, made the following report to the full committee, viz: MABSON vs. OATES. The subcommittee on Elections, to whom was referred the matter of the contest of A. A. Mabson vs. W. C. Oates, of third district of Alabama, submit the following report: W. C. Oates and A. A. Mabson were opposing candidates for a seat in the Fortyseventh Congress from the third Congressional district of Alabama at the November election, A. Ď. 1880. By the returns of said election, as certified to the secretary of state, Mr. Oates received 10,614 votes and Mr. Mabson received 5,636 votes, leaving a majority for the former of 4.988. On the 8th day of December, A. D. 1880, Mr. Mabson caused to be served on Mr. Oates notice of his intention to contest said election. In said notice said contestant specified as the grounds of contest, substantially, that in certain precincts particularly named, in the counties of Lee, Barbour, Russell, |