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ford, Columbia, Hamilton, Putnam, Orange, St. John's, Suwanee, and Volusia counties.
The record shows that no evidence-in-chief was taken in or concerning the election in any of these counties, and none whatever by the contestee during his forty days, and that all of contestant's testimony therein was taken after contestee's time had elapsed, and after the contestant's time for rebuttal had commenced. See Vallandigham vs. Campbell (1st Bartlett, p. 223); Brooks vs. Davis (1st Bartlett, 24t; McCrary on Elec., secs. 347, 348); Bromberg vs. Haralson (first session Forty-fourth Congress, vol. 5, Index to Miscellaneous Documents Digest of Election Cases, p. 364.)
It is claimed that all this testimony should be rejected.
Against all the evidence taken by the contestant in the above-mentioned counties the unanimous report of the Committee on Elections in case of Bromberg vs. Haralson, first session Forty-fourth Congress, is cited. It appeared in that case that in Wilcox County the contestant, Bromberg, the Democratic candidate, undertook to violate the election law, just as the contestant in this case has done, and that his testimony so taken was rejected. (See Bromberg vs. Haralson, supra.)
All the testimony in the above counties is ex parte in behalf of contestant. The notices served by contestant on contestee for taking this testimony in all those counties informed contestee that contestant would proceed to take testimony in rebuttal. The contestee, knowing that no original testimony had been taken in any of these counties, and that there could be nothing to rebut, declined to attend such examinations of witnesses. The contestant, instead of taking rebutting testimony, proceeded to take original testimony.
The contestant also contends that his leading attorney was sick, and that he contestant) was absent in Washington attending to his duties as a member of Congress, and that this is a sufficient excuse for not taking testimony in the time and manner allowed by law.
The record shows that the answer of the returned member was served on the 3d of February, 1881, and upon that day contestant's forty days for taking testimony commenced. The contestant contends that on account of the trouble which occurred in Madison County on the 8th of February, his leading attorney, H. Jenkins, þecame sick. The following extract from the certificate of the officer before whom his evidence was taken, p. 885 of the Record, shows that on the 18th of February his attorney, Jenkins, was attending to his case. (See Record, 885, as follows:)
Contested election, Forty-seventh Congress of the United States. HORATIO BISBEE, JR.,
18. JESSE J. FINLEY, In pursuance of notice of contestant, in the above-entitled cause, to contestee, of taking testimony, a copy of which notice is hereunto attached, filed by contestant, I have this day begun the examination of witnesses on behalf of contestant, H. Bisbee, jr., at my office in Jacksonville, Duvall County, Florida, this 18th day of February, 1881; H. Jenkins, jr., attorney for contestant, and S. J. Finley, attorney for contestee, being present.
J. C. MARCY, JR.,
Notary Public. On page 67 of the Record the following certificate of Watson Porter, the officer who took contestant's testimony in Alachua County, shows that contestant appeared there by another attorney, and that he did not commence taking his testimony there until the 7th of March,
H. Mis. 35-16
Pursuant to notice of contestant in this case, I, Watson Porter, notary public for the State of Florida at large, sat in my office in the town of Gainesville, Fla., Alachua County, on Monday, the 7th day of March, A. D. 1881, at 9 o'clock a. m., for the purpose of examining witnesses and taking evidence on behalf of the contestant; W. T. Pierson and F.E. Hughes appearing as counsel for the contestant, and no one appearing for the contestee.
Counsel for contestant offers to be filed a copy of the notice of taking testimony, with a list of witnesses for district No. 12, which is filed and marked Exhibit A.
Counsel for contestant also offers to be filed a copy of notice of contest in this case, which is filed and marked Exbibit B.
Contestant's counsel also offers a copy of the answer of contestee, which is filed and marked Exhibit C.
Counsel for contestant files in evidence a certified copy of the poll-list for Arredonda district No. 12, Alachua County, filed and marked Exhibit D. At 9.30 a. in. T. F. King appeared as counsel for contestee.
The Record shows that contestant's forty days were not diligently occupied, but frittered away; so that there is no excuse for asking any further indulgence to contestant. The contestant says in his brief (p. 2) that most of the frauds were charged to have been committed at less than a dozen polls.
Sec. 109, Rev. Stat., providesThat testimony in contested election cases may be taken at two or more places at the same time.
And in section 110, Rev. Stat., so numerous a class of officers are authorized to take testimony that in every county there is no difficulty in finding officers qualified to take such testimony.
Mr. McCrary, sec. 348, says: The statute as it now stands (see sec. 108, Rev. Stat. U. S.) affords an opportunity for investigation, so ample and complete that it is believed that it will seldom bappen that the House will find it necessary to depart from its provision in order to do the most complete and perfect justice, and it will no doubt be adhered to as furnishing the best possible guide for instituting and carrying forward inquiries of this character.
We have considered almost all the testimony thus irregularly and illegally taken, but we earnestly protest against the admission of such evidence unless great injustice would be done by rejecting it. We prefer to adhere to the law. The above-mentioned counties should stand as returned, however, both from the fact that all the testimony taken by contestant to assail them is unwarranted, and because the testimony itself, as shown by the record, is insufficient to warrant the committee in rejecting the official returns and thereby disfranchising hundreds of legal voters.
We believe from the evidence, and under the law applicable to the case, that Alachua, Madison, and Marion Counties should stand as returned.
The returns from the whole district give-
If the six polls, where fraud is charged in Madison County, should be rejected, 311 votes (Bisbee's majority in them) should be added to Finley's returned majority of the whole district; thus, 1,152 + 311, which would give Finley's majority for the whole district 1,463 votes.
But if we give the contestant the benefit of the most extreme liberality, and allow him all votes to which he could in any way be entitled, the summary would be as follows, viz:
Finley's official vote...
13, 430 12, 427
2 328 33
Leaving Finley's majority.....
Thus the most favorable showing which could in any way be obtained would leave the contestant still over 300 votes short of an election.
We therefore recommend the adoption of the following resolutions :
1st. Resolved, That Horatio Bisbee, jr., was not elected as a Representative to the Forty-seventh Congress of the United St ces from the sec. ond Congressional district of Florida, and is not entitled to occupy a seat in this House as such.
2d. Resolved, That Jesse J. Finley was duly elected as a Representative from the second Congressional district of Florida to the Fortyseventh Congress of the United States, and is entitled to retain his seat as such.
F. E. BELTZHOOVER.
G. ATHERTON. I concur in the conclusion that Finley's actual majority, as stated in the summary, is 316.
G. W. JONES.
JOHN C. COOK vs. MARSENA E. CUTTS.
SIXTH CONGRESSIONAL DISTRICT OF IOWA.
Contestant charges that persons voted for contestee who had not been in the State
six [months ?] and that five votes were erroneously counted for contestee in foot
ing up a tally-sheet. Held, That as the constitution of Iowa required six months' residence in the State be
fore a person can vote, and a number of persons voted for contestee who had not resided in the State that length of time, such votes must be deducted from the
certified vote of contestee. That the error of five votes in footing the tally-sheet is so apparent
the same must be corrected, and that number of votes also be deducted from contestee. Witnesses called to testify refused to disclose for whom they voted. Held, That this
may be shown by circumstances: Who they were employed by; who brought them to the polls; who challenged them; who urged and directed them, and gave them their tickets.
The House adopted the majority report.
FEBRUARY 19, 1883.-Mr. BELTZHOOVER, from the Committee on Elec
tions, submitted the following
The Committee on Elections, to whom was referred the contested-election
case of J. C. Cook vs. M. E. Cutts, from the sixth Congressional district of the State of Iowa, submit the following report :
The vote, as found by the State canvassing board certified to them, was as follows:
For contestee, 18,619, and contestant, 17,918.
But the county canvassers of Monroe County wrongfully excluded and failed to certify the vote of two townships (Cedar and Franklin), in which contestant had 213and incumbent 121 (Rec., 130 to 174, inc.). Adding this, we have the vote as actually cast—for contestee, 18,140; for contestant, 18,131. The majority of the sitting member is therefore conceded to be only 9.
Contestant charges that at the Albia coal mine, in Monroe County, colored men had been imported from Missouri and Kansas to work in the mines, and that of these miners a large number who had not been in the State six months voted for contestee.
The constitution of Iowa requires full naturalization, residence in the State six months, and excludes idiots and lunatics.
While the proof tends strongly to show that about 100 of these colored men voted for Mr. Cutts, which was considerably in excess of the number entitled to vote, yet it lacks that definiteness and clearness in identifying and pointing out the voters and showing the vote illegal necessary to warrant us in excluding more than two votes, those of Lucius Bell and John Walker, especially the latter.
It is shown that they voted, and voted the ticket on which was contestee's name (Rec., 128 and 129), and were not legal voters. Also, the pay-roll of the company shows that neither were at the mine as early as May, 1880.
The contestee offered evidence to explain or account for the absence of other names from this roll, but made no attempt to explain as to these; and as to Walker, in addition to this, it is shown that he had no intention of making lowa his home, but always intended to return to his family in Leavenworth, Kans.
The contestant rests his case mainly on the charge that in Des Moines and Harrison Townships, in Mahaska County, twenty-three illegal votes were polled for contestee by colored men working in Muchikinock coal mines.
It is abundantly proved, and in fact not denied, that the coal company imported, in "lots or crowds," colored men as miners from Virginia; and that these were brought by Maj. Thomas Shumate, who was employed for that purpose (Rec., 319, 321). The first crowd came to Iowa March 5, 1880. (Rec., 550, interrogatory 10, and 583, interrogatory 2.)
The second party came April 4, 1880. (Rec., 560 and 561, interrogatories 2 and 16; 583, interrogatory 2 ; 585, interrogatories 2, 3, and 4; and 626, interrogatory 3.)
The fourth came July 2, 1880. (Rec., 550, interrogatories 5 and 6; 559, interrogatory 122, 585, interrogatories 8 and 9; 586, interrogatories 23, 24, and 25; 592, interrogatory 38; and 395, top of page.)
The fifth came in September and the sixth in October, 1880.
On this there is no dispute. It is sustained by the testimony of witnesses on both sides.
The time of the arrival of the “ third or May party” only is in dispute.
The contestant claims they came May 15, and the contestee claims they came May 1.
If they came after May 1 they were too late to vote.
Briefly stated, the testimony on this point is as follows: The witness Shumate, who brought the April and all subsequent crowds from Virginia, says they came there on the 15th of May. He exhibits letters written by himself to his wife, who was then in Virginia, and with whom he corresponded while in Iowa.
These letters were written at Muchikinock, April 13, 17, and 26, and from these he is positive that he did not leave Iowa for that crowd until after the 26th. It would take him at least three days to make the trip each way, and several days in Virginia to gather up the crowd and prepare for emigration, thus making it impossible to have arrived in Iowa as early as the 1st.
He also exhibits and puts in evidence a similar letter written and dated at Muchikinock on May 16, 1880, in which he says he arrived the day before, and narrates the incidents of the trip to Iowa. An inspection of this letter shows many evidences of its genuineness. He is supported in this by the testimony of five other witnesses (Rec., 96, 97, 366, 391, 392, 393, 397, 507, 508, and 511); each of these five witnesses has some circumstance by which to fix the date.
The contestee introduces eight witnesses, who swear that the crowd came May 1; some of these were of the May party and some were not. But none of them have any circumstance or fact by which to aid the memory in fixing the date, and as they testified two years thereafter they may well have been inistaken as to the date.
But whatever doubt remains on this point is dispelled by the rebutting evidence taken by contestant.
In the cross-examination of the contestee's witnesses, and also by other evidence, it is shown that this crowd came from Chicago over the C. and N. W. railway to Marshalltown, Iowa, in a car which was dropped by the train at that place some time in the night, and they remained in it until morning, when they were put into an old black passenger coach on the Central Iowa Railway, which was attached to a freight train and run down to Muchikinock. (Rec., 562, interrogatory 57; 592, interrogatories 41 and 42; 610, top of page; 632, interrogatories 24 to 34; 648, interrogatory 46; 653, interrogatories 17 to 37; and 505, interrogatories 10 to 21.)
It is, then, by contestant in rebutting, conclusively shown by the records in the general offices of these two roads, and several of their officers and employés, that this did not occur on May 1 nor thereabouts, but did occur on May 15.
Further than this, these people were gathered up by Shumate at Staunton, Va., and their leaving was a matter of such public notoriety that it was published and commented upon at the time by the Staunton