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the rights of both the electors and contestant. We find the following votes cast for Mr. Smith at the several precincts named below, and fraudulently rejected by the precinct inspectors : Walthal's precinct, Perry County

186 Scott's precioct, Perry County..

274 Cunningham's precinct, Perry County

180 Hamburg precinct, Perry County.

250 Marion precinct, Perry County..


1, 128 These votes should be given to Mr. Smith, as the evidence, in the opinion of your committee, abundantly shows.

Your committee further find that the United States supervisors' return of votes cast for Representative in Congress from the fourth district of the State of Alabama, election held on the 2d day of November, 1880, composed of Dallas, Lowndes, Perry, Hale, and Wilcox Counties, was as follows, to wit:

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2, 158

Smith received 4,097 votes majority over Shelley, according to the returns made by the United States supervisors, as shown above.

Your committee, however, aside from this, find from the evidence that the statement of the true vote is as follows: Contestant is returned as having received at said election.

6, 650 To which add from Dallas County, as herein before set out. From Lowndes County, as stated.

868 From Wilcox County, as stated.

303 From Hale County, as stated.

398 From Perry County, as stated.

1,128 Total ......

11,507 The contestee is returned as having received a total vote of (see Record, page 170).

9, 301 Add ballots cast for contestee and thrown out by the board of county supervibors, viz: Prairie Bloff precinct, Wilcox County

24 Cababa precinct, Dallas County.

11 Fine Flat precinct, Dallas County.

25 Mitchell's precinct, Dallas County.

1 River precinct, Dallas County.

1 Martin's precinct, Dallas County

16 Pintlala precinct, Lowndes County.

40 White Hall precinct, Lowndes County.

14 Hopewell precinct, Lowndes County.

17 Newbern precinct, 'Hale County.



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Contestee's assumed vote...


Deduct from the above assumed vote of contestee the following votes fraudu-
lently counted for contestee by the precinct inspectors, viz:
Walthal's precinct, Perry County ....

181 Cunningham's precinct, Perry County.

170 Scott's precinct, Perry County.

190 Hamburg precinct, Perry County.

167 Marion precinct, Perry County



Contestee's vote.....

8,704 In the above precincts of Perry County the ballot-boxes were stuffed and the vote changed. Contestant's vote, as shown..

11, 507 Contestee's vote, as shown...

8, 704 Contestant's majority ...

2,803 Your committee further find that on the morning of the election the Democratic inspectors of Burnsville precinct, in Dallas County, did not open the polls and failed to appear. The citizens being mostly colored men, came before 9 o'clock a. m., to the number of over or about 400 voters, for the purpose of voting, but were discouraged by being informed that an election in the absence of inspectors would be illegal. A delegation of them went several miles to seek legal advice, and after doing so came back and was about to open the polls, and was then informed that they could not do so, because the hour of 9 o'clock a. m. had passed, and no election could be held or polls opened after that time; no pollboxes were furnished or blanks for returns. They then organized, and a list of the names of voters in the precinct was taken, and an expression of preference from each as to his choice for Representative in Congress, and that 300 registered and expressed their choice as being Mr. Smith, while not one expressed a willingness to vote for Mr. Shelley. But as no polls were in fact opened, and no ballots cast, your committee, while they believe these electors have been deprived of their votes fraud. ulently, cannot allow them.

In conclusion, your committee state that they have but little pleasure in reporting the facts which the evidence in this case discloses, as such acts inust be and remain a blot upon our boasted civilization ; and a more deliberate, wanton, barefaced, and cruel fraud was never practiced upon a people guaranteed by the laws of our common country the right to cast a free ballot and have it honestly counted. And while it is true that many of them, and, indeed, most of them, were colored men and uneducated men, yet it strikes your committee as being the acme of cruelty for those who have practiced these frauds and wrongs upon them to palliate the fraud or excuse themselves because of such ignorance, seemingly forgetting what all civilized people remember, that it was their own deliberate act that made them so, and by solemn enactment of State laws made it a felony to attempt the task of teaching them; but neither law nor common ordinary fairness would permit the conspirators to reap the rewards or benefits of their own wrong. The very ignorance they charge should be, and is, to every honest, humane man a strong and controlling reason why extraordinary efforts should be made to guard the rights of those dependent upon them; and if a community will not do so, the laws of a common country will.

And to that end your committee submit the following resolutions and ask their adoption :

Resolved, That Charles M. Shelley is not entitled to a seat in the Forty-seventh Congress, and was not elected thereto from the fourth Congressional district in the State of Alabama.

Resolved, That James Q. Smith was duly elected a member from the fourth Congressional district of the State of Alabama to a seat in the Forty-seventh Congress, and is entitled thereto.





The contestant on the hearing of this case before the subcommittee moved to suppress and strike from the record the testimony taken by the contestee of J. S. Muchat, William H. Dillard, Simpson Jones, Will. iam B. Gilmer, Wilson Harris, M. A. Graves, F. M. Sullivan, and B. W. Mason, taken by Ben. De Lemos, and the testimony of Ben. De Lemos taken by H. W. Caffey, for the reasons set forth in contestant's statement (Record, page 217), and to the testimony of said witness taken by said De Lemos, why styles bimself notary public, because he does not authenticate by a seal his official position (McCrary on Election Contests, page 336; Code of Alabama, sec. 1330, page 424). “For the authentication of his official acts, each notary public must provide a seal of office, which must present by its impression his name, office, State, and county for which he was appointed.” And for a further reason the contestant moved as aforesaid, because neither the certificate nor the oath administered is according to law.

And it appearing that no sufficient or proper notice was served upon contestant, so he had no opportunity to be present and cross-examine the witnesses, as is shown by the deposition of contestant, which is not controverted

It is my opinion that said motion might properly be granted for some of the reasons stated, and that all of said proof taken by contestee of said witnesses be stricken from the record in this case. But I do not deem it necessary to grant the said inotion. I prefer rather, without passing upon all the questions involved, as they are, some of them, technical, to make all proper allowances for the evidence taken, in view of the fact that contestant had no opportunity to cross-examine the witnesses, and they were not cross-examined, in fact, because of the want of proper notice.



Contested election from the fourth Congressional district of Alabama.

Election held on the 2d day of November, A. D. 1880. The Committee on Elections, to whom was referred the contested-election

case of James Q. Smith against Charles M. Shelley, from the fourth Congressional district of Alabama, election held on the 2d day of November, A. D. 1880, having had the same under consideration, beg leave to submit the following report : From the record testimony in the case, it appears the counties of

H. Mis. 35-3

Dallas, Lowndes, Hale, Wilcox, and Perry make up the fourth Congressional district of Alabama; that the electors of each of said counties are chiefly of the African race, and, as would seem, cast Republican ballots for their party candidates to the extent of from 95 to 971 per cent. of their vote when permitted to do so; that the electors in each of said counties are largely Republican in politics, and in the district, the five counties combined, have a joint Republican majority of at least 15,000 votes; that the white electors in each county of the district chiefly cast Democratic ballots for their party candidates. (Record, Rapier's ev., pp. 151-155; McDuffie, 211-216 ; Record, pp. 169, 170.)

The evidence given upon some of the general facts stated above is a matter of opinion, it is true, but the same comes from men apparently well able to judge, and is not controverted by other evidence.

It has been stated, and is notorious as matter of history, as claimed by contestant, that when the Democratic party came into power in 1874 the work of reorganizing the Congressional districts was speedily commenced, the object being to make all the districts Democratic. After the most laborious and careful investigation of this matter, it was found impossible to do so, and it was then considered best to put into one district all the large Republican counties adjoining each other, to be called the fourth Congressional district of Alabama. The acknowledged Republican majority in Dallas County was, at the State election of 1874, 4,957; in Håle County, 2,304; in Lowndes County, 2,953; in Wilcox County, 2,126; in Perry County, 2,606; making a clear Republican majority in the district of 14,946 votes. At the Presidental election in 1876 Hayes, Republican, received a majority over Tilden, Democrat, of 9,446 votes, and in the same year, in the State election, Woodruff, Independent, receiving Republican support, had a majority over Houston, Democrat, for governor, of 9,115 votes. (Record, p. 170.)

In the Congressional election of the same year Rapier, running as the regular Republican nominee, and Haralson, running as a bolting candidate (both persons of the negro race), the joint majority over Shelley, Democrat, was 6,256 votes. The census returns of 1880 show that there are now in the counties composing the district 135,881 persons of the negro race, and 32,855 white persons, disclosing a very large increase of the negro race, so that on a calculation it may be assumed that there is, in fact, now a majority of 18,000 negro Republican voters over white Democratic voters in the district. (Record, pp. 169, 170, 178.)

Under the election law of Alabama it is made the duty of the judge of the probate court, the clerk of the circuit court, and the sheriff of each county, thirty days previous to any election, to designate three inspectors to hold an election in each roting precinct, two of which shall be members of opposing political parties. The sheriff'is made county returning officer, and it is made his duty to send to each of the precincts in the county ballot boxes for the purposes of the election, and he is the peaceofficer who is to be present, in person or by deputy, at each election precinct. (Ala. Code, § 258, art. 2 ; sec. 259.)

It appears that the judge of the probate court, the clerk of the circuit court, and the sheriff, whose duty it was to appoint precinct inspectors of election, in all of said counties, were Democrats in politics and supporters of the contestee; and the same officers are by law made the county supervising board to canvass the returns made by the precinct inspectors of election appointed by themselves.

DALLAS COUNTY. It appears that previous to the election the officers whose duty it was to appoint precinct inspectors in Dallas County, one of whom should be of the opposing political party, were notified in writing and requested to obey the election law of Alabama in this respect, and give an opportunity to suggest some suitable men to act for the Republican party, but they refused to do so. One of them (the sheriff) stated that if he received forty such notices he would pay no attention to them.” (Depositions of Roundtree and Judge Wood.)

It appears that in seren precincts of Dallas County, to wit, Pine Flat, River, Mitchell's, Chillatchie, Cahaba, Martin's, and Lexington, about which testimony has been taken, and for each of them three inspectors were appointed, two of whom were white Democrats and one a negro, who was supposed to be a Republican on account of his color that of the two white Democratic inspectors for each of the seren precincts it appears that they were not present on the morning of the election to open the polls, and the white Democratic inspectors, appointed by county authority, failing to be present, the colored electors present, under the election statute of Alabama, opened the polls and held elections in said precincts; that the returns made of the result to the board of county supervisors in Cababa, Pine Flat, Mitchell's, River, Lexington, and Martin's were not in statutory form, and were for informality rejected, and the vote not counted by the board of county supervisors, and that the sheriff, the returning officer, refused to receive the ballotbox from Chillatchie precinct because it was a cigar-box, and it was not before the supervising board. (Record, p. 133.)

It appears that no box was furnished as required by law. (Rec., p. 141.) The sheriff swears that he sent boxes. If he did the Democratic inspectors had them probably and did not produce them, as they did not act.

The returns being informal, irregular, and insufficient, and therefore defective, went for nothing, and the votes cast not being counted for the contestant or the contestee, and the ballot-box from Chillatchie not being received, evidence is resorted to to prove the actual vote, under the well recognized and settled rule stated by McCrary in his work on Contested Election Cases (sec. 302, page 268 and 9; Littlefield vs. Green (1 Chicago Legal News, 230); Brightley's Election Cases, 493; McKenzie vs. Braxton, Forty-second Congress; Giddings vs. Clark, Fortysecond Congress. (See sec. 304, p. 270, and sec. 81., p. 104, McCrary on Contested Election Cases.) In Alabama, where this contested-election case arose, the supreme court of that State lay down the law of contested elections as follows:

It is the election that entitles the party to office, and if one is legally elected by receiving a majority of legal votes, his right is not impaired by any omission or negligence of the managers subsequent to the election. (State ex rel. Spence vs. The Judge of the Ninth Judicial Circuit, 13 Ala. Rep., 805.)

Nor will a mistake by the managers of the election in counting the votes and declaring the result vitiate the election. Such a mistake may and should be corrected ; the person receiving the highest number of votes becomes entitled to the office. (State ex rel. Thomas v8. Judge of the Circuit Court, 9th Ala. Rep., 338.)

The returns from Pine Flat, River, Mitchell's, Cahaba, Martin's, and Lexington precincts of Dallas County being declared irregular and informal, as not coming up to statutory requirements, were not counted by the board of county supervisors for either candidate for Congress, and the ballot-box from Chillatchie precinct being refused by the sheriff was not before the board of county supervisors and was not counted by them; therefore, in such a case each candidate was required to prove the actual number of ballots cast for him. The contestant introduces proof

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