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The ordinance of the city being followed by the board of revision in striking off names,
and by the election officers in refusing to receive ballots, and the constitution of Missouri having authorized the general assembly alone to enact a registration law, such ordinance was of no binding effect, and the votes of those who offered
to vote and were refused must be counted as proven. The tickets with different headings and the one made up of parts were legal and must
be counted, and so must the tickets that had not the given name of contestant, the evidence showing that no other person by the name of Sessinghaus was a can
didate at that election in that district for any office. A mistake in the footing of returns being proven, such mistake is corrected to conform
with the true vote.
The House adopted the majority report.
FEBRUARY 17, 1883.-—* Mr. MILLER, from the Committee on Elections,
submitted the following
The Committee on Elections, to whom was referred the contested election
case of the third Congressional district of Missouri, having had the same under consideration, beg leave to report :
As appears from the returns of the election held in the third Congressional district of Missouri on the 2d day of November, 1880, R. Graham Frost (contestee) received 9,487 votes; Gustavus Sessinghaus (contestant) received 9,290 votes, and D. 0. Connell (Greenback) received 266 votes.
Mr. Frost having a plurality of 197 votes on the face of the returns was awarded the certificate of election.
Within the statutory period after the issue of the certificate of elec. tion, Mr. Sessinghaus caused to be served on Mr. Frost a notice that he would contest the seat held by the latter as Representative in the Fortyseventh Congress from the third Congressional district, specifying particularly the grounds upon which such contest would be maintained.
An answer was shortly after filed by Mr. Frost, the contestee herein.
Testimony was then taken on the part of the contestant and contestee within the ninety days allowed by the act of Congress.
At the time of the above election the city of Saint Louis was partially divided into three Congressional districts. The third district was composed of one township in Saint Louis County and of the northern part of the city of Saint Louis.
The constitution of the State adopted in 1875, in prescribing the qual. ifications of voters, reads as follows:
Every male citizen of the United States, and every male person of foreign birth who may have declared his intention to become a citizen of the United States, according to law, not less than one year, nor more than five years before he offers to vote, who is over the age of twenty-one years, possessing the following qualifications, shall be entitled to vote at all elections of the people:
1st. He shall have resided in the State one year immediately preceding the election at which he offers to vote.
NOTE.—Hon. James M. Ritchie, of Ohio, reported this case from the subcommittee, having same in charge, to the full committee. At his request Mr. Miller was designated to report case to the House. In doing so the latter has incorporated largely in this report the exhanstive and able report of Mr. Ritchie.
2d. He shall have resided in the county, city, or town where he shall offer to vote at least sixty days immediately preceding the election.
By this same constitution, article 9, section 20 et seq., power was given the citizens of Saint Louis to frame a charter not inconsistent with any provision of the said constitution for the government of that city,
Article 8, section 5, and article 9, section 7, of said constitution are as follows, viz:
ART. 8, Sec. 5. The general assembly shall provide by law for the registration of all voters in cities and counties having a population of more than 100,000 inhabitants, and may provide for such registration in cities having a population exceeding 25,000 inhabitants and not exceeding 100,000, but not otherwise.
ART. 9, SEC. 7. The general assembly shall provide by general laws for the organization and classification of cities and towns. The number of such classes shall not exceed four, and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The general assembly shall also make provision by general law whereby any city, town, or village existing by virtue of any special or local law may elect to become subject to and be governed by the general laws relating to such corporations.
These are all the provisions of the Missouri constitution bearing on the subject.
In pursuance of section 7, article 9, supra, the general assembly of Missouri, in 1877, enacted as follows, viz:
SEC. 4380. All cities and towns in this State containing 100,000 inhabitants or more shall be cities of the first class.
SEC. 4385. Any city or town in this State existing by virtue of the present general law, or by any local or special law, may elect to become a city of the class to which its popnlation would entitle it under the provisions of this article, by passing an ordinance or proposition, and submitting the same to the legal voters of such city or town at an election to be held for that purpose, not less than twenty nor more than thirty days after the passage of such ordinance or proposition; and if a majority of such voters, voting at such election, shall ratify such ordinance or proposition, the mayor or chief officer of such city or town shall issue his proclamation declaring the result of such election, and thereafter such city or town shall, by virtue of such vote, be incorporated under the provisions of the general law provided for the government of the class to which such city belongs, which class shall be determined by the last census taken, whether State or national.
SEC. 4389. 'Any city of the first class in this State may become a body corporate, under the provisions of this article, in the manner provided by law, &c.
Then follow the provisions for governing cities of the first class, and for registration and elections therein.
Saint Louis never elected to accept the provisions of this law, and was not governed or controlled thereby, nor were its provisions concerning registration of any force or effect in said city.
There was also another statute, which did apply to Saint Louis, viz:
AN ACT to provide for the exercise of the right of voting by persons who have failed to register.
Be it enacted by the general assembly of the State of Missouri as follows : SECTION 1. In all State, connty, and municipal elections hereafter held in any city of this State having a population of one hundred thousand inhabitants or more, no person shall be deprived of the right of voting at such election by reason of having failed to register: Provided, That, in all cities where registration is required by law, the party offering to vote, but who from any cause has failed to register before he offers to vote, shall be, on the day of such election, registered by a special registrar of election, appointed by the judges of election for that purpose at each precinct, as a qualified voter, in a book to be kept for that purpose ; and the ballot of such voter shall be received and counted at such election; and such registrar shall return to the register of voters of such city the list of such voters so registered within ten days after such election, provided the said registrars shall be sworn as provided for the recorder of voters and the books shall contain the written or printed oath as required in the regular registration books.
Approved March 30, 1877.
The Constitution of the United States, article 1, section 4, is as follows, viz:
The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations except as to the places of choosing Senators.
The charter adopted by Saint Louis in 1876, in pursuance of the constitution of Missouri, article 9, sections 20 et seq., provided for registration. It was, however, never adopted, ratified, or acted upon in any way by the general assembly of Missouri.
The municipal assembly of Saint Louis in 1878 passed a city ordinance providing for registration in said city, section 11 of which ordinance is as follows, viz:
Sec. 11. The mayor shall appoint a board of revision, consisting of one reputable citizen from each ward in the city who shall possess the qualifications of a meinber of the house of delegates, whose duty it shall be to meet with the recorder of voters, at his office, twenty days before each general, State, or municipal election, for the purpose of examining the registration, and making and noting corrections therein as may be rendered necessary by their knowledge of errors committed, or by competent testimony heard before the board; a majority of said board shall be necessary to do business, and the mayor shall be ex officio president thereof. They shall strike from the registration, by a majority vote, names of persons who have removed from the election district for which they registered, or who have died, and shall note the fact opposite the name of any person charged with having registered in a wrong name, or who for any reason is not entitled to registration under the provisions of this ordi pance, which person shall be challenged by the judges of election when presenting himself to vote, and rejected unless he satisfy said judges that he was entitled to register, and said board shall also place on said books the names of such persons as in their judgment have been improperly rejected by the recorder of voters. They shall sit from day to not exceeding ten days, until they hayo completed their labors, and their proceedings shall be printed daily in the paper doing the city printing. They shall each be allowed the sum of three dollars per day for their services.
This is the only section bearing on the question at issue. It differs somewhat from both the city charter and the State statute governing those cities which elected to become cities of the first class.
The foregoing are substantially all the enactments controlling this case save the United States statutes.
This city ordinance was adopted subsequently to any act of the general assembly. It contains forty-odd sections, and prescribed an entire scheme of registration and election for Saint Louis, and was the only law by which registration was had in said city.
These views are supported by Counsellor Bell, of said city, at page 1814 of Record.
On investigation we find that the various so-called sections of the statutes of Missouri, cited in the report of the minority of this committee, concerning the application of the election laws of the State, were placed there by the committee appointed by the general assembly of Missouri to revise the statutes in 1879, and that the same lack the ratification or approval of that assembly.
The evidence of the following witnesses, who testified for the contestant, and which is absolutely uncontradicted, shows that they, each and every one of them, were qualified voters under the laws of the State of Missouri, and entitled to vote at that election; that each and every one of them had previous to the election herein complied with all the provisions of the registration law, and that they had been by the proper officer duly registered as legal voters for their respective pre
cincts; that preceding the election they were improperly, wrongfully, and illegally stricken off the registration list by the board of revision of the city of Saint Louis; that on the day of election they each and every one of them went to their respective and proper polling precincts in said city and offered to cast their ballots for contestant for Representative in Congress from said district, but the judges of election, not find. ing their names on the registration list, would not receive and count their votes, and their votes never have been counted, viz : Record page.
Record page. 510. Aerschbeck, Sam.
1669. Hamig, H. F. 861. Alvord, Wm. B.
974. Harder, Ulrich 1234. Bailey, Peter
453. Hartman, Jno. F. 491. Ball, George
636. Hawkins, Christian 615. Bartlett, Geo.
1125. Hayes, Isaac 681. Bell, Wm.
1173. Henderson, Tony 750. Bethge, August
1056. Hendricks, Spencer. 462. Betts, Henry
941. Hennerla, A. B. 560. Bloss, Jno. F.
498. Herdler, Carl 863. Boothe, F.
493. Hilf, Christ. 459. Broeder, Casper H.
895. Horstbrink, Louis 578. Brown, Ben.
814. Howard, Dinkey 866. Brown, John
500. Howard, Wesley 918. Bruder, Jno. G.
680. Howarth, Fred. 970. Bush, Robert
* 431. Howell, L. M. 481. Boekemeier, Henry
1060. Hull, Morris 1008. Cheatam, Ike
743. Johanningmeyer, Henry 932. Clayton, John
160. Johnson, Alfred 608. Coleman, Henry
1532. Johnson, Geo. 1595. Coleman, Robert
1165. Johnson, John 452. Corum, Henry C.
633. Johnson, Merritt 626. Cousins, Jno.
1073. Johnson, Pat 359. Cox, Chas.
987. Johnson, Simeon 617. Crawford, Antoine
631. Jenkins, Chas. 1029. Cummings, Edw.
757. Koboldt, Henry 437. Cummings, Ed.
809. Kraemer, C. H. 833. Davis, Clark
546. Landwehr, J. H. 550. Dodd, Willis
1586. Lang, Geo. 1044. Douglass, Thomas
599. Larkins, Peter 530. Dugles, Geo.
658. Leeker, J. F. 618. Dietring, C. H.
521. Lewis, Jno. 790. Ermantraut, Henry
413. Lincoln, Jas. 624. Edwards, John
842. Lofton, Lewis 1043. Emery, Jonathan
1427. McGee, Jno. 629. Fissman, Henry
1377. Marshall, Henry 495. Fogler, Frank
609. Martin, Jackson 955. Frenning, Louis
526. Maschmeier, Geo. 596. Gardner, Woodford
1210. Maze, Daniel 728. Gieseker, F. W.
504. McIlvanie, Geo. R. 654. Goodin, Jno.
745. Meier, Henry 585. Grassmuck, Peter
1058. Mestemacher, Chas. 652. Green, Cato
440. Meyer, Henry W. 450. Green, Chas.
637. Miller, Wm. 1393. Green, Edw.
929. Monroe, Jos. 447. Green, Silas
822. Maxey, T. 460. Hale, Jefferson
747. Mueller, Chas. P.
641. Price, C. A.
490. Schottgen, P. 1205. Sawyer, Jas. 482. Seibeltz, Henry 734. Simms, Henry 677. Shelton, Abner 1382. Smith, David
580. Solari, August 1003. Soler, Chas. 1376. Springer, Wm.
817. Stocko, Fred. 1527. Stocktor, Jas. R. 655. Strack, Matt 654. Strader, Beverly 547. Struve, Henry 1166. Talbot, Henry
377. Taylor, Edw.
We find further that the board of revision, by whom the above voters were stricken off the registration list, met on each of nine days imme. diately preceding the election, the first day only to organize and pass the following resolution, viz:
Resolved, That when a member of the board of revision presents a list of persons found on the list furnished him by the recorder of voters with dead, removed, not found, vacant house, duplicate, not a citizen, or any other word or phrase to indicate that the person is not entitled to vote, his name being on the books of the recorder, the board of revision shall take immediate action on such names and instruct the recorder of voters to erase such names from the registered list of voters in his office.
By this resolution that board delegated its exclusive power to each of its members, and in advance agreed that whatsoever names any of its members presented to be stricken off, should be stricken off without any knowledge or testimony. And the recorder of voters, who was ex officio clerk of that board, swears that the business was done as follows, viz:
The clerk called Ward one; when the reviser from that ward sent up a list of names, which was not even read, the clerk merely stating the number of names on the list, when, by virtue of the above resolution, and without further action by the board, they were stricken off, no other member of the board but he from the First ward ever hearing the names read or knowing what names had been stricken off; when Ward two was called, and so on through the whole twenty-eight wards (Record,
H. Mis. 35 -25