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box, not delivered to him by an elector, in lieu of a Republican ballot that was delivered to him by an elector. The sitting member adduced no testimony controverting that of these tlfree witnesses. It is claimed that this return should be excluded, on the principle that if an officer of election is clearly shown to be guilty of deliberate fraud in a single instance, all his acts are tainted with dishonesty, and the prima facie character of the return, as evidence, is destroyed. (McCrary, secs. 441, 442, 303.)
The application of this principle would reject this return, but as the testimony establishes that this act of changing one ballot was done soon after the polls opened, and was not afterwards repeated, and the total vote was small, we have concluded to retain the return, and correct it by deducting one vote from Finley's vote and adding one vote to Bisbee's vote.
Objection is made to counting the votes stated in the Moss Bluff return in this county. The proof relied upon by contestant to exclude this return consists of the testimony of three witnesses.
The substance of all their testimony is that the supporters of the sitting member voted ballots which they took from a table in the pollingroom; that during the day it was discovered by two of these witnesses that contestee's pame was not on the ballots on this table. One witness, Heath (Record, pp. 578, 519), swears positively that he examined 25 tó 30 of such ballots on the table from which the Democratic electors took their ballots, and that contestee's name was not on them. Another witness, Sellers (Record, pp, 516, 518), swears that he was present when the names of the candidates on the ballots voted were read to be tallied, and that contestee's name was not called out; at least if it was the witness did not hear of it.
All the officers of the election were political friends of the contestee, and it is proven that as the names of the candidates for each office upon a ballot were announced by one of the officers he handed the ballot to another officer of the election, who immediately tore it up and destroyed it, instead of laying the ballots aside until all of them had been canrassed.
The contestee has not attempted to explain or disprove the testimony taken by contestant, and for this reason it is urged that he could not.
It is true that the contestee could easily have proveu that his name was upon these ballots voted by his supporters, if such were the fact, and by not doing so he has left the impression to operate that he could not, but the voters may have written contestee's name on their ballots, and there is no evidence that they did not, except the testimony tending to show that his name was not read when the votes were canvassed.
The elector who voted for the other Democratic candidates doubtless intended to vote for the contestee, and as the witness for contestant is not entirely positive that the name of contestee was not read from the ballots when they were canvassed, we have concluded to count the vote at this poll as returned.
It is claimed by contestant that at the four polls in this county, known as Nos. 2, 3, 5, aud 7, 76 persons voted who were not registered voters.
The evidence relied upon is a certified copy of the registration book
of the county, dated November 29, 1880, a certified copy of the list of names stricken from such book, at the annual revision thereof by the county commissioner, in the year A. D. 1878, and 1880, and also a certified copy of such book, dated March 15, 1877, purporting to be a copy of all the names registered on that date, from 1868, when the registration laws were first passed. This last copy is in the record of the case of Finley vs. Bisbee, Forty-fifth Congress, page 758, offered in evidence at the argument of this case.)
The total number of votes returned from these four polls is 590, of which but 47 are returned for contestant. The poll-lists are in evidence, showing that the 76 persons voted, and if their names are not on the said certified copies of the registration books and lists of names stricken from such books, there being no evidence to the contrary, these votes are illegal. If deducted pro rata, according to the rule applied, whereas in this case it is not shown for whom such votes were cast, 70 should be deducted from contestee's vote, and 5 from contestants, one vote being lost in fractions by this method of deduction.
As the decision of this question will not affect the final result on the merits of the case, your committee have not performed the work of examining the copies of the books and lists of names to ascertain whether or not the 76 persons, or any of them, are registered, and therefore have not deducted the votes of these persons in the tabular statement of corrections of the official vote.
According to the conclusions to which we have arrived, the official returns must be corrected as follows:
Finley. The total official vote returned is
13, 430 12, 427 Add to contestant's vote the votes tendered and rejected (Exbibit A)..
269 Deduct from contestee's votes the illegal vote cast for him (Exhibits B and C)....
96 Deduct from contestee's vote at the Arredonda poll, 172; Newnansville poll, 146; Parker's Store, 155 ..
473 And add to contestant's vote the votes proven at said polls in excess
of his returned vote, Arredonda, 191; Newnansville, 18; Parker's Store, 28......
237 Madison County, deduct from contestee.
163 And add to contestant..
165 Nassau County, Odwin's Branch poll, deduct from contestee
1 And add to contestant.... Total of above corrections...
672 Which deducted and added to the official vote gives the following result.
13, 099 To be still further corrected by deducting contestee's returned vote and contestant's returned vote in Brevard County.
74 Deduct returned vote at No. 3 poll, Hamilton County
68 And at Fort Christmas poll, Orange County.
3 Total ......
145 Which deducted from the last stated result gives for Finley 12,309; Bisbee, 12,954, and a majority for Bisbee of 645.
Now concede to contestee at the two polls of Newnansville and Parker's Store, Alachua County, the difference between the total returned vote for Representative and the votes proven for contestant, and 255 votes would be deducted from Bisbee's majority, leaving him 390 majority. And even if the polls in Brevard County No. 3, Hamilton County, and Fort Christmas poll, Orange County, were not rejected, contestant would still have a majority of 147 votes.
In any view of the case founded upon the law and the evidence, the contestant has a majority of the legal votes cast.
It ought, however, to be stated :
Contestee claimed before the committee that a portion of contestant's evidence was taken afterthe expiration of the first forty of the ninety days allowed by statute (Rev. Stat., p. 1071) for the taking of testimony, and that some of that which was takeu during the ten days allowed for rebuttal was not strictly in rebuttal, and that all such should be rejected and not considered by the committee.
It appears that contestant bas given notice of the taking of a large number of witnesses, and proceeded to take them as fast as he could, but at the expiration of the forty days, to wit, on March 15, he had not got through with his list, and continued until they were finished, on the 16th, 17th, 18th, 19th, 21st, 220, 230, 25th, 26th, and 28th of March. Contestee's counsel left and would not remain after the 14th of March.
It is claimed, and the record sustains it, that contestee had consumed a great deal of time unnecessarily by his method of dilatory and useless cross-examination, probably with the object of delaying the taking of testimony
It also appears that scenes of violence and public disorder prevented contestant's attorney from going into some parts of the district where the witnesses lived, so that he was thereby deprived of much of the first forty days.
It also appears that contestant did not occupy any portion of the forty days needed by contestee, and that he was not prejudiced at all by contestant's continuing to finish his witnesses after March 15, for contestee did not begin to take testimony in Madison County until the 16th of April; did not commence in Alachua County until the 13th of April, two weeks after contestant had got through. He examined altogether but fifty witnesses, occupying but sixteen days. Ten of these were examined on the question of the popularity or unpopularity of the candidates.
Contestant offered to agree to give his opponent all the time he wanted to answer the evidence objected to (record, p. 1066), and urged him to proceed to do so if he desired, and he obstinately refused, although he knew that testimony taken after the expiration of ninety days on consent of parties would be received, for such had been the case in his contest against J. S. Walls. (House Mis. Doc. No. 58, first session Fortyfourth Congress.)
He knew of the other facts stated and of the illness of counsel which had delayed the taking of the evidence entirely within the first forty days. And the committee think that a fair-minded man would have been most likely to enter into an agreement allowing further time, and he must be presumed to know the previous practice of the Committee on Elections to exercise discretion in such matters.
It is also evident that most and probably all of the evidence to which he now objects did not admit of an answer, as his attempt to answer other evidence of the same kind to which he does not object proved in. effectual. That taken during the last ten days was such'from its nature that it could not be contradicted or its torce impaired by any counterevidence.
It is manifest, therefore, that contestee did not suffer and was not prej. udiced by any delay or the acts complained of.
No complaint is made or pretense set up that the evidence was not fairly taken and accurately reported. He had full opportunity to crossexamine if he desired to do it, and also to answer it after the same was taken. But he did not choose to do so, and preferred to take the risk of its being considered. After the case was referred to the committee and
H. Mis. 35-13
printed he did not appear or make any motion to strike out the evidence objected to, so that it might be supplied if the motion was granted, but took the objection for the first time at the argument.
The committee are clearly of the opinion that the evidence taken after the expiration of the forty days should be received and considered, and they have considered it; that the evidence taken in rebuttal should also be considered. All of the evidence was taken within the ninety days allowed by statute, so that in that respect the statute was literally complied with, and the forty days allowed contestee was more than sufficient for his purposes, as he did not begin until about two weeks after contestant had finished, and then occupied but sixteen days, while he had the offer of all the more time which he desired.
It is manifest that contestee did not believe he could answer the evi. dence and, in the spirit manifested by his cross-examination, designed apparently to use up the time, so as to get beyond the forty days, and by leaving when the forty days were up, and when he knew contestant was going on to finish his list of witnesses, he was seeking some technical advantage if he could get it. The testimony
The testimony in rebuttal, also taken within the ten days, appears to have been proper and competent, and should be, and has been, considered. The course of the committee seems fully justified by good precedents.
No statute can tie the House down to any rules of procedure.
Its provisions are directory, constituting only convenient rules of practice, and the House is at liberty, in its discretion, to determine that the ends of justice require a different course. (McCrary, pp. 353, 358, 359.)
In 1st Bartlett, Rep., 223, 224, a Democratic committee held that if either party desired further time to take testimony after the time bad expired, it was his duty to give notice to his opponent and proceed and take it and present it to the committee, which would, on good reasons being shown, receive and consider it.
So, too, in regard to rebutting evidence; that rests in the discretion of a court alwaỹs, even if not strictly in rebuttal. (Reed vs. Kneeas, Brightley's Election Cases, 416; Richardson vs. Stewart, 4 Birney, 197.)
Evidence taken seems to bave been in rebuttal, and was such as not to admit of being answered or controverted, and the precise order of same is immaterial.
Votes proved to have been cast illegally for contestee, by evidence taken during the last ten days: 15 in Duval, 12 in Putnam, 12 in Saint John's; 39 in all.
The whole number of votes tendered and refused, and those for contestee proved to be illegal, involved in all the evidence taken during last ten days, is precisely 178.
All the rest is in Brevard, showing no registration ; aud No. 3, Hamilton poll, assailed for fraud and illegality.
If the 178 are cast out of the majority of 442, this would still leave 264. So the objected evidence, if rejected, would not change the result in favor of contestant.
Your committee therefore recommend the adoption of the following resolutions :
Resolved, That Jesse J. Finley was not elected as a Representative to the Forty-seventh Congress from the second Congressional district of Florida, and is not entitled to the seat.
Resolved, That Horatio Bisbee, jr., was duly elected as a Representative from the second Congressional district of Florida to the Fortyseventh Cougress, and is entitled to his seat as such. A. A. RANNEY.