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lots cast; the returns are attacked for fraud and each candidate must prove his vote; the contestant has proved the actual vote cast for himself and the contestee, and they should be counted as cast; the rule of law in such a case being to set aside the returns without reference to what appears on their face (Ferguson vs. Chapman, 1 Bartlett, 267; McCrary on Election Contests, pp. 309, 310). We hold further that the United States supervisor at an election poll is made a part of the State election machinery and that the State inspectors had no authority to refuse admittance to the United States supervisor, and their refusal was improper and not warranted in law. False count against contestant..
180 False count in favor of contestee.
170 (See record for evidence of above. Testimony of Henry Wells, pp. 279–281 ; Nix Stevens, pp. 281–285; Beverly Smith, pp. 298–300; William Jenkins, p. 387; J. P. Billingsley, pp. 253, 254.)
The Democratic inspectors at Walthall's precinct, in the county of Perry, refused, as at Cunningham’s, to permit the United States supervisor to enter the polling-room, as provided by the election law of the United States, and therefore he was unable to scrutinize the manner of conducting the election, or to witness the count of the ballots cast for each candidate, so that each candidate for Congress should have the benefit of every ballot for him cast. The rejection of an United States. supervisor, commissioned to be present, was not authorized by law. The proof shows that contestant had cast for him at Walthall's precinct 336 ballots, and for the contestee 34 ballots were cast; the inspectors return as the vote for contestant 150 ballots, and for the contestee they return 215 ballots, showing a fraudulent count against contestant of 186 ballots, and a fraudulent count in favor of contestee of 181 ballots. The statement of the inspectors as to the ballots cast and counted for each must be set aside, and then it is the duty of Congress, without reference to the face of returns, to ascertain for whom the ballots were actually cast at Walthall's precinct (McCrary on Election Contests, pp. 309, 310; Washburn vs. Voorhies, 2 Bartlett, 54).
We hold as matter of law, from all the facts, that the vote cast should be counted for each candidate as cast, notwithstanding the false return made by the precinct inspectors. False count against contestant.
186 False count in favor of contestee...
181 (See record for evidence of above testimony of William Q. Smith, pp. 168, 169; J. P. Billingsley, pp. 253, 254; Latch Evans, pp. 309-311; Exhibit, pp. 323, 324; Lee Andrews, pp. 311, 312; E. B. Jones, pp. 384, 385.)
At Hamburg precinct, in the county of Perry, an offer to bribe the United States supervisor appears to have been made by one of the election officers, and this failing, a fraudulent, false, and stuffed box was substituted for the ballot-box into which the electors had cast their ballots, and a return was made by the inspectors to correspond with the substituted box.
The proof shows the pumber of ballots cast for each candidate to be 338 ballots for the contestant and 40 ballots for the contestee. The false count from the substituted box, as made by the precinct inspectors' consisted of making it appear that there were cast for the contestee 207 ballots, and for the contestant 88 ballots.
The returns being set aside for fraud, the election stands, and each candidate is left to the proof of the votes cast for him (Washburn vs. Voorhies, 2 Bartlett, 54; Reed vs. Julian, 2 Bartlett, 882; Norris vs. Hundley, Forty-second Congress; McCrary on Elections, page 312).
To the proof made by contestant no counter-proof is introduced, and we hold the true vote cast at Hamburg should be counted as proved : False count against contestant....
250 False count in favor of contestee.
167 (See record for evidence of above. Testimony of B. F. Watson, pp. 104-111 ; 398, 399; Green Johnson, 144-147; J. F. Harris, pp. 254–259; Exbibit, p. 288; J. P. Billingsley, pp. 253, 254.)
At Scott's precinct, in the county of Perry, the United States super. visor swears that one of the State inspectors gave him $35 as a consideration for changing ballots cast for contestant, by striking out contestant's name on the ballots and writing thereon contestee's name, which was done. The proof taken as to the election at Scott's precinct shows that contestant had cast for him 470 ballots, and that the contestee had cast for him 37 ballots, but when the precinct inspectors made their return contestant is credited with only 196 votes, whilst the contestee had counted for him 227 votes, showing a false count against contestant of 274 votes, and a false count in favor of the contestee of 190 votes.
We are of the opinion that the votes should be counted as cast for each candidate. False count against contestant.
274 False count in favor of contestee
190 (See record of evidence of above. Testimony of Walter Lowry, pp. 155–164, 165, 166, 388–391; J. P. Billingsley, pp. 253, 254; Lazarus Avery, pp. 292–296; William Henderson, pp. 296–298; Exhibit, pp. 322, 323; contestee's witnesses, C. W. Turpin, pp. 481, 482; J. C. Lee, pp. 482, 483; L. N. Driver, pp. 483, 484; E. Evans, p. 484; C. Schonberg, 485; R. Perryman, p. 485.)
At the election in Pope's precinct, in the county of Perry, contestant shows, by the proof (uncontradicted), that there were cast for him 300 ballots, and for the contestee 30 ballots; that after the election was over and the polls closed, and about the time the counting of the ballots cast should have commenced, one of the three inspectors said he was sick, left the polling room and returned no more that day; other inspectors, Democrats in politics and supporters of the contestee, refused to count the ballots for either candidate in the absence of the sick inspector, and forwarded the box and ballots uncounted to the board of county supervisors, who were not, under the election law of Alabama, authorized to count the ballots, and neither candidate had the benefit of the ballots cast for him. Upon the facts, as matter of law, we hold that the two inspectors might have properly counted the ballots and have made a return of the result to the board of county supervisors in the absence of the sick inspector, but as this was not done, and as each candidate is by law entitled to every ballot for him cast, notwithstanding the omission of the precinct inspectors to count the ballots, it becomes the duty of the House of Representatives to ascertain from the evidence the true state of the vote, and the House cannot be estopped from considering the effect of the proof presented. (Norris vs. Hundley, Forty-second Congress; McCrary on Election Contests, 312; Ex parte Ellyson, 20 Grat. Va., 10.)
Under the proof contestant is entitled to have counted 300 votes, and the contestee to have counted 30 votes, being the number of ballots cast for each candidate at Pope's. (See record for proof of above. Tes
timony of agreement, p. 285; S. T. Smith, pp. 314-316; Exhibit, p. 383; Henry Robinson, pp. 316, 317; Lindsey McDaniel, pp. 317, 318; S. S. Pickering, p. 384; J. P. Billingsley, pp. 253, 254.)
WILCOX COUNTY. The proof in reference to the election at Prairie Bluff precinct, in the county of Wilcox, establishes the fact that there were actually cast for the contestant 305 ballots and for the contestee 23 ballots ; the rote as polled was returned to the board of county supervisors, who declined to count the returns, because of an omission to insert the name of the precinct. On the cover of the box was written Prairie Bluff'; the inspectors at this precinct, all white men, may have omitted to insert in the returns the name of the election precinct, but the proof supplies the omission, and establishes the fact that the box was from Prairie Bluff precinct, and shows the vote cast for each candidate as above stated. An exhibit of the name and number of each elector, the statement, and the ballots themselves, are in evidence. Under the facts, we hold that the evidence establishes the name of the precinct, the number of ballots cast, and for whom cast, and that they should be counted as cast for each candidate; no proof is offered to rebut the testimony produced on the part of contestant, and, as a matter of law, it is the election that entitles the party to office, and if a majority of legal votes are cast, any fraud, omission, or negligence of managers subsequent to the election cannot impair the party's right. (State ex rel. Spence, 13 Ala., 805; 1 Bartlett, 267; McCrary ou Election Contests, sec. 554.) Contestant. Contestee
23 (See record. Testimony of Thomas J. Sykes, pp. 225-228; Exhibit, pp. 408, 409; Milton Brooks, pp. 228-230; B. M. Young, pp. 210–250; Exbibit, pp. 221, 222; E. D. Morrill, pp. 234-240; E. W. Locke, p. 405.)
I have not deemed it necessary to take into consideration the votes cast and not counted for contestant in the precincts of Bethel, Rose Bud, and Canton, in the county of Wilcox, where contestant claimed large majorities, rejected by the board of county supervisors on account of irregularity and omissions in the returns, nor have they considered Brooks's precinct, in the county of Lowndes, nor Camden, Snow Hill, and Pine Apple precincts, in the county of Wilcox, where contestant claimed large majorities, but where fraudulent returns were claimed to have been made by the precinct iuspectors, nor Selma, Burnsville, and Valley Creek precincts, in the county of Dallas, where contestant claims that large numbers of Republican electors who would cast their ballots for him were afforded no opportunity to do so, the polls not having been opened, because, if considered, it would only add to the contestant's majority.
The tabulated statement herewith submitted, marked Exhibit A, shows the true vote cast for each candidate, and which should be counted for each of them in this contest, and it shows the majority of votes counted for the contestant, from which it appears that contestant was elected to a seat in the Forty-seventh Congress of the United States from the fourth Congressional district of Alabama :
6, 650 Add ballots cast for contestant and thrown out by the board of county supervisors for inforinality in returns, &c. : Cahaba precinct, Dallas County
376 Pine Flat precinct, Dallas County
Mitchell's precinct. Dallas County
Newbern precinct, Hale County.
Walthall's precinct, Perry County ..
868 305 300 398
186 180 274 250 238
Pope's precinct, Perry County..
30 24 11 25 1 1 16 40 14 17 103
Contestee's assumed vote......
Walthall's precinct, Perry County ...
181 170 190 167 141
It was contended at the hearing that inasmuch as the statute of Alabama provides that the ballot-boxes with the ballots shall be kept by the inspectors for sixty days for use in case of a contest, contestant was bound, as his best evidence, to procure and put in evidence the ballots themselves when proving wbat the actual vote was. It is claimed, or appears, however, that in many, if not most, of the instances where there was occasion to do this, if important, the boxes had not been kept as required by law, but had gone and been allowed to go into other hands. Whatever may be the rule otherwise, it certainly could not apply in such a case.
I find that several of the parties named in this report, and charged with frauds upon the election law in the election in question, were duly presented to the grand jury and indicted for the same. Some of the boxes in question had been taken and used before the grand jury in their investigations. There is no record of any conviction or acquittal of the parties indicted. The fact of indictments baving been found is of course no competent evidence to impeach the parties as witnesses, and the committee have not so considered it.
Mr. Stephens seems to have been only nominally a candidate, and I am impressed with the belief that he got in fact less votes than were given for him in the official count, which was 1,693.
Said Smith has died pending the contest.
Resolved, That Charles M. Shelley was not elected as a Representative to the Forty-seventh Congress from the fourth Congressional district of Alabama, and is not entitled to retain the seat which he now occupies in the House.
Resolved, That James Q. Smith was duly elected as a Representative from the fourth Congressional district of Alabama to the Forty-seventh Congress, and having deceased, the seat is declared vacant.
Mr. BELTZHOOVER, from the Committee on Electious, sub nitted the
VIEWS OF THE MINORITY:
The fourth Congressional district of Alabama is composed of the counties of Dallas, Lowndes, Hale, Wilcox, and Perry.
It is true that the colored persons inhabiting this district are largely in excess of the whites, there being 135,181 of the negro race and 32,855 of the white race, but as to how the voting population is divided politically there is nothing in the evidence to show, unless assumptions of two persons may be considered as evidence.
One of these gives as his opinion that 974 per cent. of the colored people were Republicans, and this opinion is based upon his experience in 1876, when he made a political canvass of the district. (Rapier's Ex. R., p. 154.) These persons are both active political partisans and members of contestant's party. It is, therefore, a mere opinion based upon an opinion, which has little or no solid foundation, to assume that there was