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as to the number of ballots cast for him at each of the precincts of Pine Flat, River, Cahaba, Mitchell's, Chillatchie, Martin's, and Lexington; the .contestee introduces no proof whatever to rebut the proof made by the contestant in this respect, nor does he show by any proof that he had any ballots cast for him for Congress, except from the evidence taken by contestant.

The proof does not show that the sheriff was present in person or by deputy at any of the seven precincts referred to, and it is shown that every white Democratic inspector appointed by the board of county supervisors failed to appear and open the polls and hold an election, and neither of the Democratic United States supervisors appointed by the United States circuit court, on the petition of ten Democratic citizens of the county, appeared at the said election precincts, except the Democratic United States supervisor at Pine Flat precinct, and his report to the chief supervisor of elections agreed with the report of the Republican United States supervisor.

It appears that the county board of supervisors of Dallas County, the largest Republican county in the district, appointed two intelligent Democrats, supporters of the contestee, and although requested in writing refused to appoint one intelligent member of the opposing political party, but did appoint one ignorant negro supposed to be a Republican on account of his color, to serve as precinct inspectors, and that the two white inspectors did not appear at the election place to open polls and hold an election, leaving the ignorant negro inspector to organize a board of inspectors from the negro electors present; and from the fact that the polls were opened and elections were held by the uneducated negro qualified electors of said precincts, and from the further fact that the statement of the vote cast, and the returns thereof, were held to be irregular, informal, and insufficient, and therefore not considered por counted by the board of supervisors, because they were not technically in accordance with the election law, we are reluctantly impelled to the conclusion, particularly as each of said precincts is largely Republican in politics, that there must have existed a well planned and previously arranged conspiracy on the part of the Democratic election managers, by the absence of the Democratic precinct inspectors at the election place on the day of election, to have no polls opened, and if opened under the election statute by the uneducated negro electors, then they hoped the statutory statement of the election returned to the board of supervisors would be defective in form, and in either event there would be a pretext or sufficient excuse for not considering the vote; but such a scheme, if formed, cannot be allowed to be successful, as the committee have no difficulty on the proof in find. ing that an election was held according to law and what the vote actually was. (Code of Alabama, section 262.)

I therefore find, as matter of fact, that the ballots legally cast, but not counted for contestant and contestee in the said seven precincts of Dallas County, and which should, as matter of law, be counted for them in this contest, are:

Pine Flat precinct..
River precinct...
Cahaba precinct..
Mitchell's precinct.
Chillatchie precinct..
Martin's precinct...
Lexington precinct..

For contestant. For contestee. 280

25 314

1 376

11 360

1 124

0 384

16 320

0

Total .....

2, 158

54

RECAPITULATION.

For contestant
For contestee...

2, 158

54

LOWNDES COUNTY.

It appears from the proof in reference to the precincts of Pintlala, Whitehall, Hopewell, and Benton, in Lowndes County, that the Democratic inspectors, appointed by the board of county supervisors, failed to appear and hold the elections, except at Whitehall precinct. At Hopewell the ballots cast for each candidate were not counted by the board of county supervisors. The contestant proves that he had cast for him 116 ballots, and that contestee had cast for him 17 ballots. The returns of this precinct were excluded for irregularity and informality, and come under the ruling heretofore made, that ballots legally cast should be counted as cast notwithstanding the action of the precinct inspectors.

(See record. Testimony of Willis Knight, pp. 195–198; Allen Hinson, pp. 198, 199; Exhibit, p. 334; J. V. McDuffie, pp. 211-216. Con testee's witnesses: S. Jones, pp. 546, 547; M. A. Graves, pp. 549–551; F. M. Sullivan, p. 551.)

The evidence as to this precinct is conflicting. Only two inspectors acted, as no others would serve. The Democratic inspectors would not serve, although present. Their evidence is to be taken with allow. ance.

It appears that at the election in Benton, in the same county, the appointed Democratic inspectors present on the morning of the election refused to open the polls and hold an election, stating it was too late to open the polls. The hour of nine o'clock having arrived, the Republican colored electors present, seeing that no election was to be held, organized, under the election law of Alabama, and held the election, which resulted in having cast for the contestant 156 ballots. The appointed Democratic inspectors, who said it was too late, and said there would be "no election that day for Garfield or Hancock," opened a second polling place and held an election, where 51 ballots were cast for contestee. The box from this second polling place was received by the county returning officer (the sheriff), and the box containing the 156 ballots cast for contestant was rejected by the sheriff and not counted by the board of county supervisors. The contents of the ballotbox are exhibited in the record. We hold, as matter of law, that the sheriff should have received the ballot-box and permitted it to go before the board of county supervisors; and further, as matter of law, that after the first election polls were opened the second polls were not authorized, and should not be recognized, and therefore the 156 ballots cast at the first polling place should be counted for contestant. The United States supervisors cannot be present where precincts are multiplied; it would be a dangerous power, and may be used for the purposes of corruption. (McCrary on Election Contests, sec. 108, pp. 120, 121; Sloan vs. Rawles, Forty-second Congress; see record, testimony of R. $. Abbott, pp. 185–188; Exhibit, pp. 329, 330; A. J. Edwards, pp. 188–193; Exhibit, p. 174; George Torrance, pp. 193–195; J. V. McDuffie, pp. 211-216; contestee's witness, M. A. Graves, pp. 549, 550; supervisor's return, 329.)

At the election in Whitehall precinct, in the county of Lowndes, the uncontradicted testimony shows that there were cast for contestant 276 ballots, and for the contestee 14 ballots, and it also appears that the precinct returning officer took the ballot-box used for the purposes of the election to the sheriff, the county returning officer, who, being informed of the vote cast for each candidate at Whitehall precinct election, refused to receive or receipt for the box, because it was a pipe-box that had been used for the purposes of the election. This county returning officer is a Democrat in politics, and an ardent supporter of the contestee, and after refusing to receive or receipt for the box he desired the precinct returning officer to put the box on a desk in his office, which was done. It is in proof that the ballot-box, when delivered to the precinct returning officer, had in it, properly secured, the whole number of ballots cast, 276 of which were cast for contestant and 14 were cast for contestee, and the list of voters who cast ballots at the election, which is exhibited in the record. When this ballot-box was before the board of county supervisors its appearance showed that it had been opened from the bottom, and by this means "tuffed with fraudulent ballots instead of the true ballots cast by the electors. All of contestant's ballots found in the box when opened, to the number of 54, had a hole in the middle of each as if having been strung upon a string, and were folded, and looked as if they had been cast, and the other ballots found in the box looked as if they had not been cast, and in the shape they were could not have been cast at the election by being put through the hole in the lid of the box; the ballots were not counted by the board of county supervisors.

We can reach no other conclusion from the facts and circumstances than that the ballot-box was fraudulently tampered with whilst in the sheriff's office, and before it was brought before the board of county supervisors. We hold that the pipe-box used for the purposes of the election was not objectionable, and should bave been receipted for, and, as a matter of law, we hold that the contestant should bave counted for him the 276 ballots cast, and that the contestee should have counted the 14 ballots cast for him. (See record. Testimony of Philip White, pp. 176–178; Exhibit, p. 346; Robert Payne, pp. 179-181; Major White, pp. 181-185; Willis Brady, pp. 199, 200; J. V. McDuffie, pp. 211-216; contestee's witness, M. A. Graves, pp. 549, 550.)

At the election held at Pintlala precinct, in the county of Lowndes, it appears from the proof that after the electors had cast their ballots the closing hour had arrived, and the counting of the ballots cast should have commenced. A voter of the precinct appointed to act as one of the three inspectors previous to the election, an active supporter of the contestee, but who refused to act on the morning of the election, entered the polling room, having with him a sachel with a partition in the middle, in one side of which he had a cigar-box stuffed with false ballots, and took from the table the ballot-box, into which the voters dur. ing the election had cast their ballots, and placed it in the empty side of the sachel. In a few minutes a confederate, in a buggy, called him. He took from the sachel the fraudulent stuffed box and placed it upon the table, closed the sachel containing the true ballot box and ballots, and jumped into the buggy and left with his confederate. The false ballotbox reached the board of county supervisors certified to by the election officers as a false and not the true box. From the proof made it is shown that at the time of the robbery of the true box there were in it 320 bal. lots cast for contestant, aud 40 ballots cast for contestee.

We hold that all the facts and circumstances show a bold device and conspiracy to destroy the result of the election at Pintlala precinct, and, as a matter of law, that the true vote for contestant and contestee should be counted for each. (Chapman vs. Ferguson, 1 Bartlett, 267.)

Contestant

320" Contestee..

40 (See record. Testimony of Samuel M. Duncan, pp. 200-203; W. D. Gaskin, pp, 203–207; Exbibit, pp. 344, 345; Samuel Lee, pp. 207, 208 ; J. V. McDuffie, pp. 211-216; contestee's witness, B. W. Mason, pp. 551, 555.)

Contestant, by the proof, shows the true vote cast for himself and the contestee at the election held in Hopewell, Benton, Whitehall, and Pintlala precints, in the county of Lowndes, which should be counted for each, as follows:

For contestant. Hopewell precinct

116

17 Benton

156 Whitehall

276

14 Pintlala

320

40

For contestee.

0

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There seems to be no controversy about the election in Hale County, except as to Newbern precinct, and as to that election contestant's claim is that it is shown by the proof that after the balloting was over on the day of the election, the box into wbich the electors cast their ballots was changed for a fraudulent, false, and stuffed ballot-box. One of the inspectors, a Democrat and supporter of contestee, was caught in the very act. The stuffed box was sent to the board of county superrisors, who refused to count the vote for either candidate for Congress, and the box was last seen before the United States grand jury at Mobile. If this claim is sustained, the fraudulent conduct of the Democratic election inspectors appearing, and not having attempted to make a statement of the true vote cast, or the intended fraudulent count in favor of the contestee, we hold the true issue in an election contest in Congress or in the courts to be

1st. Was there an election held.
2d. Who received a majority of the legal votes cast.

The proof shows that there was an election held, and that the contestant had cast for him 398 ballots, and that the contestee had cast for him 103 ballots. The fraudulent conduct of election officers cannot deprive the injured party of the votes legally cast for him by the electors, for it is the election that entitles the party to office, and that right is not impaired by the conduct of election officers subsequent to the election. (13 Alabama Reps., 805; Chapman vs. Ferguson, 1 Bartlett, 267.)

I am of the opinion that the vote cast at Newbern, and not counted for either candidate, should be counted on the proof, as follows: For contestant .. For contestee

103 (For proof see record. Testimony of Merritt House, pp. 300–305; Exbibits, pp. 429-431; E. J. Lavender, pp. 305-308; Exhibits, pp. 318-321; Lawson Hill, pp. 308, 309; Exhibits, pp. 321, 322 ; Granville Thompson, pp. 312, 313; Exhibit, p. 323; J. Huggins, p. 432. Con

398

testee's witness, Sam. Bennett, pp. 485, 486; Bob Haywood, pp. 486, 487; M. S. Herran, pp. 488, 489; F. L. Huggins, p. 489; Dennis Starky, p. 489.)

PERRY COUNTY.

The Democratic inspectors, appointed by the board of county supervisors, opened the polls and held elections in the precincts of Marion No. 1, Cunningham's, Walthall's, Scott's, and Pope's, in Perry County, The proof shows that the board of county supervisors refused to obey the election law of the State, at least in spirit, as to appointing one of the three inspectors from the opposing political party (Record, p. 254), and that at Walthall's and Cunningham's precincts the United States supervisors were refused admittance by the inspectors to the pollingroom, and they were unable to be present to witness the casting and the counting of the ballots, and the manner of conducting the election provided for by the United States election law, so that each candidate should have the benefit of every vote for him cast.

The election in Marion precinct No. 1, in the county of Perry, was held by the inspectors appointed previous to the election, two of whom were supporters of the contestee, and the proof, as contestant claims, shows that at that election precinct contestant had cast for him 327 ballots, and the contestee had cast for him about 222 ballots, yet. the election inspectors return contestant as having cast for him only 89 ballots, and the contestee as having cast for him 363 ballots, showing a false count against the contestant of 238 ballots, and a false count in favor of the contestee of 141 ballots. Outside of the false count and false return made by the inspectors at this precinct, the evidence tends to show such conduct on the part of the inspectors during the election that no credit can be given to their return; it proves nothing, and other evidence must be resorted to to show the true number of ballots cast for each candidate. (McCrary on Election Contests, p. 234.) The uncontradicted false count of ballots cast for each candidate, and the uncontradicted evidence showing the conduct of the election officers at Marion precinct No. 1, bring us to the conclusion that the ballots cast and proven for each candidate must be counted for each, as shown by the proof, and not by the returns. Contestant is entitled to and should receive credit for 327 ballots, less the 89 ballots counted for him, and from the contestee's vote should be deducted 141 ballots. False count against contestant.

238 False count in favor of contestee.

141 (See record. Testimony of J. P. Billingsley, pp. 253, 254; James F. Bailey, pp. 259–263; Exhibit, p. 288; S. B. Price, pp. 263–269; Exhibits, p. 286, pp. 401, 402; Ed. Spaulding, pp. 269–274; Matt. P. Boyd, pp. 274–278; Exhibit, p. 288.)

At Cunningham's precinct in the county of Perry, after the United States supervisor was rejected, there was no opportunity offered to scrutinize the manner of conducting the election inside the polling-room, but it is claimed to be shown by proof, uncontradicted, that there were cast for contestant 315 ballots, and for the contestee 40 ballots; yet the Democratic inspectors in the return made of the result count the contestee as having received 210 ballots, and the contestant as having received 135 ballots; showing a false count against contestant of 180 votes, and a false count in favor of the contestee of 170 votes. The proof, uncontradicted, shows, as is claimed, a fraudulent and false count of the bal

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