but has by its action declined to make him a party. If such a precedent is to be established, it will be giving to the Committee on Elections jurisdiction to act outside of the statute, and to inquire as to the seat of any member on the floor at its discretion, and without the order of the House.

III.

A few words as to the claim of the contestant concerning the prima facie case.

On pp. 10, 11 of the printed Record, we find that the contestant himself introduced the following certificate:

STATE OF SOUTH CAROLINA,

Office of Secretary of State:

I, R. M. Sims, secretary of state, do hereby certify that the following is a correct statement of the total number of votes cast in the several counties comprising the second Congressional district of South Carolina, and also of the votes cast for a member of Congress from said district at the general election held November 2d, 1880, as certified to by the State board of canvassers:

Witness my hand and the seal of State, at Columbia, this 20th day of January, A. D. 1881, and in the 105th year of American Independence. [SEAL.]

R. M. SIMS,

Sec. State.

In his brief (p. 4) he claims that certain boxes were not counted by the county canvassers, and also claims the vote thereat to have been as below copied from said brief. Without conceding the sufficiency of the evidence of the said votes, for reasons herein before stated, we give his figures as claimed in his brief, page 4, as follows:

Applying these figures to the vote canvassed, we have the following summary, viz:

This still leaves O'Connor a majority of 1,145 on the prima facie case. The contestant attempts to overcome this by secondary evidence of various kinds; but we find in the way of considering this secondary evidence the objections heretofore alleged, going to the authenticity and genuineness of the testimony as filed. It would be extremely dangerous to establish as a precedent the admissibility of parol testimony to overturn the official returns of an election, and, in addition, to accept a copy of such parol testimony, made by one of the parties and his agents, in place of the original testimony by such party destroyed.

But the contestant goes further, and claims a majority of 9,278; and in order to arrive at this conclusion, he takes for granted that the ballot-boxes were stuffed by Democrats, but that every Republican voted but a single vote, in the face of the fact that the very papers on which he relies as supervisor's returns to establish his case state that Republican ballots were found in the boxes when opened with other Republican ballots folded inside at ten different polling precincts, viz: In Charleston County, at court-house (p. 28), Marion engine-house (p. 75), Henderson's store (p. 92), Pinopolis (p. 124), and Mount Pleasant (p. 137); in Orangeburg County, at Jamison's (p. 226), Washington Seminary (p. 243), and Cedar Grove (p. 260); in Clarendon County at Fork (p. 314), and Jordan's (p. 330); and also in face of the fact that the Republican supervisor of Orangeburg poll, one of his own witnesses, testifies that two Republicans were caught in the act of voting double tickets at that poll (p. 232).

In addition to this, the testimony of a manager at Griffin's poll (p. 637), introduced in behalf of contestee, and uncontradicted, is to the effect that when the box was opened 51 Republican tickets were discovered folded together in sundry packages.

We cite these merely to show that this claim of the contestant, so intrinsically improbable, is defeated by the very papers by which he is attempting to overthrow the returns of the election, as declared by the lawful authorities of the State.

This extraordinary creation of a majority for the contestant does not appear to be equaled in any instance in our knowledge, unless it be in the case of Buttz vs. Mackey, in the Forty-fourth Congress, in which the present contestant was contestee, and in which his seat was vacated on proof (inter alia) that 25 of his supporters deposited for him over 600 votes, by voting for him twice at every precinct but one in the City of Charleston. (See Smith's Dig. Elec. Cases, p. 685.)

The undersigned, for the foregoing reasons, recommend the adoption of the following resolution, as a substitute for the resolutions reported by the majority of the committee:

Resolved, That the contest entitled E. W. M. Mackey vs. M. P. O'Connor, for a seat in the Forty-seventh Congress of the United States for the second Congressional district of South Carolina, be dismissed.

S. W. MOULTON.
G. ATHERTON.

CARLOS J. STOLBRAND vs. D. WYATT AIKEN.

THIRD CONGRESSIONAL DISTRICT OF SOUTH CAROLINA.

In this case the testimony on behalf of contestant was taken before a United States commissioner, and the contestee at the time objected and excepted to the competency of the officer.

Held, That the officers authorized to take testimony in cases of contested elections are specially designated by statute, and United States commissioners not being so designated cannot act without the written consent of the parties. Contest dismissed.

The House adopted the report.

APRIL 6, 1882.-Mr. G. W. JONES, from the Committee on Elections, submitted the following

REPORT:

The Committee on Elections, to whom was referred the case of C. J. Stolbrand vs. D. Wyatt Aiken, from the third Congressional district of South Carolina, having had the same under consideration, respectfully submit the following report:

All the testimony in the case was taken in behalf of the contestant before E. W. Stoeber, United States commissioner. The contestee, at the threshold, excepted to the competency of the officer.

The following are the statutory provisions applicable to the question raised by the exception.

Revised Statutes, p. 19:

SECTION 110. When any contestant or returned member is desirous of obtaining testimony respecting a contested election, he may apply for a subpoena to either of the following officers who may reside within the Congressional district in which the election to be contested was held:

First. Any judge of any court of the United States.

Second. Any chancellor, judge, or justice of a court of record in the United States. Third. Any mayor, recorder, or intendent of any town or city.

Fourth. Any register in bankruptcy or notary public.

SEC. 111. The officer to whom the application authorized by the preceding section is made shall thereupon issue his writ of subpoena, directed to all such witnesses as shall be named to him, requiring their attendance before him at some time and place named in the subpoena, in order to be examined respecting the contested election.

SEC. 112. In case none of the officers mentioned in section one hundred and ten are residing in the Congressional district from which the election is proposed to be contested, the application thereby authorized may be made to any two justices of the peace residing within the district; and they may receive such application and jointly proceed upon it.

SEC. 113. It shall be competent for the parties, their agents or attorneys authorized to act in the premises, by consent in writing, to take depositions without notice; also, by such written consent, to take depositions (whether upon or without notice) before any officer or officers authorized to take depositions in common law, or civil actions, or in chancery, by either the laws of the United States or of the State in which the same may be taken, and to waive proof of the official character of such officer or officers. Any written consent given as aforesaid shall be returned with the depositions.

The officers authorized to take testimony are specially designated.

It is, however, specially provided that "by written consent" testimony may be taken before certain other officers mentioned. United States commissioners are not mentioned in the first class, and, if included in the latter, cannot act without the written consent of the parties.

It is apparent that the exception is well taken, and must be sustained.

It is insisted that the House of Representatives, in judging of the elec tions, qualifications, and returns of its members, is not bound by the rigid rules of judicial procedure. This is true, but applies only to exceptional cases, not provided for by the "rules prescribed." It would be worse than idle to prescribe rules if they may be willfully and unnecessarily disregarded.

This view is decisive of the case, and renders unnecessary further statement of it.

We recommend the adoption of the following resolution:

Resolved, That C. J. Stolbrand have leave to withdraw his papers.

GEORGE Q. CANNON vs. ALLEN G. CAMPBELL.
TERRITORY OF UTAH.

Contestant alleges that he received 18,568 votes against 1,357 cast for contestee, and was legally elected Delegate from the Territory of Utah.

Contestee denies that 18,568 votes were legally cast for contestant; that contestant was not eligible or qualified to be elected or serve as such Delegate because he was an unnaturalized alien; and because he was a polygamist living and cohabiting with plural wives.

Held, That contestant did receive the highest number of votes cast. Certificates of returns of elections made by county canvassing boards to the secretary of the Territory, under the Territorial law, constitute the proper mode to be pursued in the Territories in respect to the election of Delegates; and such records duly authenticated by a seal will be received in evidence without having been first introduced in evidence before the magistrate who takes and certifies the depositions.

Contestant was duly naturalized as appeared by his certificate of naturalization and by the record of the court, which latter cannot be collaterally questioned. Delegates are the creatures of statute, and the legislative branch of the Government may abolish the office altogether.

The House may at any time by a majority vote exclude from the limited membership which it now extends to Delegates from Territories any person whom it may for any reason judge to be unfit to hold a seat as a Delegate. And contestant, having admitted that he has plural wives, and that he teaches and advises others to the commission of that offense, he should be excluded from the House. Contestee, however, having only received a minority of the votes cast, was not elected, and the seat is declared vacant.

The House adopted the majority report.

FEBRUARY 28, 1882.-Mr. CALKINS, from the Committee on Elections, submitted the following

REPORT:

IN THE MATTER OF THE CONTEST OF GEORGE Q. CANNON AGAINST ALLEN G. CAMPBELL, TERRITORY OF UTAH.

VIEWS OF MR. CALKINS.

Your committee, to whom was referred the said contest between the parties for the seat, having had the same under consideration, beg leave to make the following report:

On the 20th day of January, 1881, from the city of Washington, the contestant, Geo. Q. Cannon, served on the contestee the following notice of contest:

ALLEN G. CAMPBELL, Esq.:

WASHINGTON, D. C., January 20, 1882.

SIR: I have the honor to notify you that I shall contest your right to hold a seat in the House of Representatives of the Forty-seventh Congress of the United States as Delegate from the Territory of Utah, and also your right either to be sworn or en. rolled, or to hold a certificate of election as such Delegate, on the following grounds: 1. That the returns of the election of Delegate to the Forty-seventh Congress of the United States, held on the 2d day of November, 1880, in the several counties of the Territory of Utah, which were prepared and forwarded to the secretary of the Territory, under sections 23 and 24 of the compiled laws of the Territory of Utah, copies of which returns, marked respectively A, B, C, D, &c., are hereto annexed, showed, as the fact was, that 18,568 votes were legally cast for me at said election; that only 1,357 votes were cast for you, and that only 8 votes were cast for all other candidates, and that I was therefore legally elected to said office of Delegate from the Territory of Utah in the Forty-seventh Congress, and was also entitled to receive the certificate of election, and to be enrolled and sworn as such Delegate.

2. That said returns showed, as the fact was, that you received less than one-thirteenth of the votes legally cast at said election, and therefore were not entitled to hold the said office of Delegate from the Territory of Utah in the Forty-seventh Congress, or to be enrolled or sworn as such Delegate, or to receive the certificate of election to said office.

3. That the action of the governor of the Territory of Utah in withholding the certificate of election from me, and giving it to you, was illegal and fraudulent.

Very respectfully,

GEO. Q. CANNON.

The exhibits attached to and forming a part of the notice of contest were certificates made by the secretary of Utah Territory, under the seal of the Territory.

On the 26th day of February, 1881, Mr. Campbell, the contestee, answered the notice so served on him, in the following words:

GEORGE Q. CANNON, Esq. :

SALT LAKE CITY, UTAH,
February 26th, 1881.

SIR: To your notice of January 20th, 1881, served on me on the 4th day of the present month, to the effect that you will contest my right to hold a seat in the House of Representatives of the Forty-seventh Congress of the United States as Delegate from the Territory of Utah, &c., I have the honor to answer in respect to the facts alleged by you, and to state the grounds on which I rest the validity of my election, as follows: 1. I admit that returns of the election of Delegate to the Forty-seventh Congress of the United States, held on the 2d day of November, 1881, in the several counties of the Territory of Utah, were made to the secretary of said Territory, of which copies are annexed to your notice and referred to therein as marked respectively A, B, C, D, &c., but I deny that said returns showed, or that the fact was, that 18,568 votes were legally cast for you at said election, or that you were legally or otherwise elected to said office of Delegate from the Territory of Utah in the Forty-seventh Congress, or entitled to receive the certificate of election, or to be enrolled, sworn, or otherwise in