Louis, and third Congressional district; that they had never registered and voted in the city of Saint Louis; that on the day of election they were registered at the polls of their respective and proper precincts by the registering officer duly appointed for that purpose; that they offered their ballots for contestant for Representative in Congress from the third Congressional district of Missouri, but the judges refused to receive and count their votes, and they never have been counted, viz: Record page. 485. Eggerman, Chas. 489. Hagensiecker, Henry 864. Braun, T. J. 1203. Kendall, Alfred 434. Koester, C. H. Record page. 507. Mohr, Wm. And for the reasons assigned above, we hold that these ballots should now be counted for contestant. IV. The evidence shows that the following were at the date of the election herein legal and qualified voters of the State of Missouri and city of Saint Louis, and said third Congressional district; that they never had registered or voted in the city of Saint Louis; that on the day of election they offered at their respective and proper polling precincts, and before the officers appointed to register voters, and receive and count the votes, to register and vote for contestant for Representative in Congress for the third Congressional district of Missouri, but the officers whose duty it was failed and refused to register them or to receive and count their ballots, and their ballots were not received and counted by the judges of election, and they never have been counted: Record page. 516. Arbuckle, Lazarus 1027. Atkins, Alex. 1090. Battell, Lemuel 1237 and 2676. Clark, Jerry 1135. Combs, Dave 1037. Cross, Edward 636. Cummins, Henry 1390. Davis, Charles 1282. Day, Wallace 1111. Dillard, James 523. Duncan, Jackson 1257. Edwards, Jeff. 1159. Evans, Henry 808. Franklin, Henry Record page. 820. Godejohn, F. W. 873. Harriss, George 432. Link, Frederick Record page. 1138. Lyons, Jerry 966. Scott, Sam. 1094. Simpson, Hilliard Record page. 1646. Sims, Charles By virtue of the law heretofore referred to, providing for registration on election day, and upon the same ground as leads us to count the votes of those wrongfully stricken from the list, these 86 men should have been registered and permitted to vote; and because the officers whose duty it was to pass upon their qualifications wrongfully and illegally denied them their right of suffrage, and because the said voters had done all that the law required of them, they should now have their votes counted. V. At pages 612, 668, 870, 674, 540, 759, 783, 620, 1157, 1228 of the Record will be found the evidence showing that there were 23 ballots cast for contestant, but not counted, having this caption, viz, "Chronicle Selected Ticket," a ticket made up of names of persons on both the Republican and Democratic regular tickets. It was not in the language of the law (see page 1681) a ticket designed to deceive the voter. It showed plainly what it was, viz, a ticket selected by the Chronicle, an independent daily newspaper published in Saint Louis (see pp. 945-'6). This ticket had contestant's name on it for Congress from this district, and was, in some of the precincts, thrown out by the judges and not counted. The supreme court of Missouri, in the case of Turner vs. Drake (71 Mo., 285), construed this statute as follows: This is a proceeding instituted in the county court of Carroll County, contesting the election of defendant as recorder of deeds of said county. The county court quashed the notice of contest on the motion of defendant, from which action plaintiff appealed to the circuit court, where upon a trial de novo judgment was rendered for defendant, the notice of contest quashed, and the proceedings dismissed, from which plaintiff has appealed to this court. The only ground for contest alleged in the notice is that all the ballots cast for defendant, at the election which was held on the 5th day of November, 1878, were fraudulent and void, because the caption of said ballot contained the words, "Republican, Independent, Greenback." The following is the form of the ballot as to State and county officers: "Republican, Independent, Greenback; supreme judge, Alexander F. Denney," &c. The claim that the ballots cast for defendant, of which the foregoing is a type, were fraudulent and void, is based upon section 1, acts of 1875, p. 15, which is as follows: "Each ballot may bear a plain written or printed caption thereon, composed of not more than three words, expressing its political character, but on all such ballots the said caption or head-lines shall not in any manner be designed to mislead the voter as to the name or names thereunder. Any ballot not conforming to the provisions of this act shall be considered fraudulent, and the same shall not be connted.” We cannot, from the mere face of the ballot, declare, as a matter of law, that the words used in the caption were, in any manner, designed to mislead the voter as to the name or names thereunder. The words em loyed would indicate to the voter that he would find among those to be voted for Republicans, Greenbackers, and Independents, or persons who were candidates without party indorsement. We think the evident purpose of the legislature in the above enactment was to prevent one political party from using, asa caption to its ballots, the name of any other political party from that mentioned in the caption. A ballot with a caption using the words "The Republican Ticket," which contains only the names of persons who represented the Democratic ticket, would fall within the class of ballots interdicted by the law. The design of the statute is to prohibit the use of any words in the caption to a ballot which do not truly indicate the political character or party affiliation of the persons to be voted for, and any ballot which represents by the words used in the caption that it is the ticket of one party, when in truth and in fact the persons whose names are contained in the body of the ballot represent another and different party, is under the statute fraudulent and void. Under this and similar decisions, it seems to us there can be no doubt that contestant is entitled to have counted for him these 23 votes. VI. Evidence on pages 952 and 897 of the Record, which is uncontradicted, will be found, showing that 10 votes cast for contestant were thrown out and not counted by the judges, merely upon the ground that the contestant's given name was not on the ballots. The proof shows that no other man by the name of Sessinghaus was a candidate at that election in that district for any office. Hence we follow the unbroken chain of authorities as cited by McCrary, and hold that these 10 votes should be counted for contestant. VII. At one precinct in the said district it appears from the evidence (page 612, of Record), there were cast by legally qualified voters 15 ballots having the caption "Greenback Labor Ticket," but with the nominee of that party for Congress scratched out in pencil and the name of contestant inserted, none of which ballots were counted by the judges of election. The evidence is wholly uncontradicted. We think the above votes should be counted for contestant, the intention of the voters being plain and the ballots being legal. VIII. In precinct 148 the testimony shows that the board organized under the law to foot up returns made by the judges of election counted for contestant 141 and contestee 58, that appearing to be the figures on the poll-book of that precinct. The undisputed positive testimony of a majority of the officers of election at that precinct is that contestant received 149 votes and contestee 52, and that those were the figures certified to and returned by the judges. The contestee called no witnesses to disprove this testimony, and if it had been false it could easily have been shown. We therefore conclude either that a mistake was made or the figures were intentionally changed after leaving the hands of the judges, and that in either event it should be corrected. This adds 8 votes to contestant and takes 6 from contestee. (See Record, pages 1748, 674–5, 823, and 668-29.) IX. There was also voted at that election a ticket headed "Hancock Independent Ticket," upon which the name of contestee was printed but scratched out, and contestant's name inserted in pencil. This ticket was thrown out by the judges. (See pages 779 and 791.) It seems plain that it should be counted for contestant. X. At precinct number 74 a ballot was cast (as shown by the evidence, page 985) which was made up of the tickets of the two parties, cut in the middle and pasted together, thus making a complete ticket with only one name thereon for each office. It had on it the name of contestant for Congress. This ballot was thrown out and not counted by the judges. We think it should be counted for him. The voter evidently knew what he was about, and it was his privilege to vote for whom he pleased. XI. As to precinct No. 39 the contestant urged persistently, and introduced much testimony to support his position, that this precinct should be thrown out; but we are constrained to differ with him. We find that the evidence of intimidation hardly comes up to the standard provided by the precedents cited by McCrary, and hence we conclude that it must stand. We find, however, that twenty men (all colored) who were qualified and legal voters, and duly registered, and who had done all that the law required of them, who were entitled to vote at that poll, went there and offered to vote, but were refused for various trivial reasons, many of them being frightened by abuse and driven from the poll. The following is a list of the above-all of whom offered to vote for contestant: Record page. 368. Adams, Wm. 213. Ashby, Sanford 259. Bailey, Joseph 183. Batten, Alex. 209. Bell, Joseph 264. Bingham, S. S. 284. Brown, John 308. Brown, Edward 226. Donan, Wm. 356. Foster, Chas. Total, 20. Record page. 177. Harris, Walter. 255. Lee, Wilson 262. Leland, Geo. 158. Rollins, Cain We submit that the above should be counted for contestant. XII. It is admitted by contestee, and the proof is positive and uncontradicted, that a minor, Louis Hain, cast his vote for contestee, and that it was so counted. We therefore take one vote from contestee.( See Record, pages 1232 and 1754.) XIII. As to the charge made by the contestee that the testimony had been mutilated by counsel for contestant, we say that there is not the slightest ground for the allegation. (See the testimony of the notary who took the whole testimony in the case. He was a stenographer as well as a notary.). By Mr. MILLER: Q. How long have you been a short-hand writer?-A. I began the study of shorthand in the fall of 1868. I wrote short-hand for the Saint Louis Mutual Life Insurance Company from 1872, continuing from that time on till I got into the business of reporting. Q. Before you forwarded the long-hand notes of this testimony to Washington, did you compare each sheet of it, as forwarded, with your original stenographic notes?— A. Yes, sir; every sheet. Q. After you transcribed the short-hand notes of the testimony of contestant into long-hand, was it out of your possession and in the possession of Mr. Metcalfe for revision?—A. I will have to explain that, for the simple reason that I did not write them. My agent, of course, took the notes from me and wrote them out. But after the transcript came back into my hands, and after I made the examination from my notes, page after page, signed and sealed each day, they never again left my hands for one moment until they got into the House. Q. That is the transcript?-A. The transcript of my short-hand notes taken in the case. Q. After the transcript had been made by you or your agents, you permitted it to go into the hands of Mr. Metcalfe, for examination ?-A. Yes, sir. Q. Before it went out of your hand and into Mr. Metcalfe's had you verified the transcript with your original notes?-A. No, sir; I had not even opened the package. Q. Much of the transcript had been made by clerks working under you?-A. Yes, sir. Q. In what manner and by whom were your short-hand notes transcribed into longhand?-A. At the close of every session-every day's session-I would have my clerks waiting for me in my office, and would give the first one a half hour's dictation from my short-hand notes. At the close of his half hour I would make a check of my notes, giving the name of the clerk next following. Then the next clerk would take his half hour of that same day's proceedings, and so on until the full number of clerks were at work. There were, I think, some evenings six or eight. We worked frequently till midnight, until completing the testimony of that day-until it was all dictated. They took it in short-hand from my dictation from my notes. Then they took it to their residences, transcribed it at their leisure, and brought it back to my office. There it passed into the charge of one of my brothers, who was instructed what to do with these different parts. He would take the first half hour, the second half hour, the third half hour, and so on till the close of all the witnesses of that day, place them together, number the pages, and tie the parcels up separately, of that day's proceedings, and mark it on the outside. And so it went on through the entire case. Q. State whether the original short-hand notes taken by you were ever out of your possession.-A. No, sir. Any short-hand man knows what that means. Q. (Interrupting.) When they came back to you from Mr. Metcalfe, state whether or not any changes, or suggestions, were marked on any of them.-A. There were pencil memorandums on some of them. Q. State whether or not you adopted any of the suggestions contained in those pencil memorandums.-A. I adopted them in this way: There were blanks in those crude transcripts as they were brought back by my clerks, brought about by their inability to read their notes. Sometimes there were whole paragraphs left out. Mr. Metcalfe would mark in his suggestions, this name here, this there; and, of course, when I came to the corrections-when I got these sheets back and made my correction, in reading my notes-where my notes tallied with Mr. Metcalfe's suggestions my notes prevailed-no, I don't mean that they were exactly alike, and I inserted them, but not otherwise. |