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disapproving the positions taken by counsel, which are not specially discussed. It is sufficient for the purposes of this case to notice two of the items in the count made by Messrs. Abraham & Mayer. They throw out the vote of Escambia County, by which contestee is made to lose a majority, as given by the returns, of 634, and they count off from Herbert 1,190 votes in Pike County, on the alleged ground that Herbert's name was spelled Hebert instead of Herbert in this number of ballots.
As to Escambia County, by the law of Alabama it is the duty of the sheriff, judge of probate, and clerk of the circuit court to give notice of an election and appoint managers. This duty the sheriff, judge of probate, and clerk of the circuit court of Escambia County failed to perform. But by the statutes of Alabama it is provided that when for any cause managers and other officers of election are not appointed, the qualified electors present may elect them. It appears that this was done and the election held; and it further appears that on the 30th day of October, 1880, the chairman of the Congressional executive committee of the Democratic party gave contestant notice that this course would be pursued, and invited him to name the persons he desired as managers to represent them at the different boxes. Under these circumstances, as the law is well settled that when time and places of holding an election are fixed by law no notice by the officials is essential, your committee can see no good ground upon which to exelude the vote of Escambia County.
This conclusion derives additional weight from the fact that contestant in his notice of contest made no charge against the legality of the election as held in Escambia County.
As to the alleged misnomer in Pike County, your committee find that the evidence does not establish that more than fifty votes were cast in which Mr. Herbert's name was spelied Hebert. They further find that these ballots were intended to be cast for Herbert; that they were printed Hebert by mistake of the printer; that no person of like name except contestee was being voted for or was a candidate, and they believe that under the law and the precedents these votes were rightfully counted for contestee. Indeed, Mr. Ingersoll, one of contestant's counsel, admits they should be so counted.
If we then restore to contestee bis majority in Escambia, 634, and the votes taken from him in Pike, 1,190, he gains from these two items alone, on the count of Abraham & Mayer, 1,824.
Deducting from this sum the majority claimed by Abraham & Mayer, 938, gives Herbert a majority of 886.
Having reached this substantial majority by making these two corrections in the calculation of Messrs. Abraham & Mayer, we deem it unnecessary to examine whether the other claims to allowances and de. ductions made by them are well founded.
In the second brief of Mr. Ingersoll for contestant he admits that Mr. Strobach's majority is only 463.
In the estimate by which he reaches this conclusion he also deducts from Herbert his majority in Escambia County, to which the committee have decided contestee was entitled. Restoring simply the vote of this county and making no further corrections in Mr. Ingersoll's estimates, Herbert is elected by the difference between 463 and 634, say by 171 votes.
But there are other claims put forward in behalf of contestant, in Mr. Ingersoll's brief, which we think equally untenable.
He deducts 177 from Herbert at Manningham, Butler County, and 164 at Spring Hill, Butler County.
The vote at these boxes is pot assailed in the pleadings or by the evidence further than by a comparison with the census returns. This comparison does not show that the vote was unduly large, but simply that Herbert received more than the white vote and Strobach less than the colored vote. Your committee cannot consent, for such reason as this, to disturb the returns of the regularly constituted authorities.
The restoration of the returns of these boxes, in addition to the vote of Escambia, would leave the majority for the contestee 512, admitting every other claim made by counsel for contestant.
We also think it equally clear that the evidence does not establish that 300, as is claimed for contestant in one count, or 275 votes, as is claimed in the other, were taken from contestant and added to contestee at box 2, C.H., Montgomery County. Denying this claim would further increase the majority of contestee by 550 votes in one count and 600 in the other.
But your committee do not in any manner mean to indorse or agree to the justice of all the other claims set up for contestee. They simply deem it unnecessary further to examine them, having reached the conclusion by the examination of a few of the items of contest that contestee is duly elected.
Contestee would seem to have been elected by a much larger majority than either of those given above, but they have adopted as the readiest mode of reaching a conclusion the plan of examining only a few of the items claimed by contestant's counsel.
This examination, resulting as is shown above, demonstrates that, conceding, for the sake of argument, everything else claimed by the able counsel for contestant, the contestee was elected by a decided majority.
Having reached this conclusion, your committee do not deem it essential that they should inquire further into the matter, as the precise majority is immaterial.
The only doubt which the committee has had in regard to this case is whether the irregularities and frauds alleged and appearing in evidence were not sufficient to render the election of contestee void.
Contestant has arrayed the schemes of fraud conceived and executed in the election held in August, 1880, and claims that the same practices were resorted to in the November election of that year. The committee hare scrutinized closely the proof and evidence in this regard, and are impressed with the fact that this seems to have been so to a considerable extent. But applying the rules of law which obtain in election cases, it is not satisfactorily proved that there was any such general scheme of fraud which appears to have been successfully practiced in a sufficient number of cases as to change the general result.
The statute law of the State of Alabama has also been arraigned as wholly insufficient and inadequate to secure an honest election, and as a safeguard against fraudulent practices which seems to be so rife in that State. With this the committee have nothing to do, as a general principle. But it may be permitted to say that the charge seems to be true to a lamentable degree. The law seems to be quite severe as against the elector. But as regards the officers and managers of election, there appears to be no adequate provision to insure fidelity and honesty of action, or to punish derelictions of duty.
The committee have felt bound, however, to follow the law as it stands.
The committee unanimously recommend the adoption of the following resolution :
Resolred, That contestant be allowed to withdraw his contest without prejudice.
ALGERNON A. MABSON ys. WILLIAM C, OATES.
THIRD CONGRESSIONAL DISTRICT OF ALABAMA.
Contestant served notice of contest on contestee on December 8, 1880, and contestee
filed his answer on January 5, 1881. On February 1, 1881, contestant commenced taking testimony and took the depositions of eight witnesses, all apparently on the same day. No other witnesses appear to have been examined for contestant. On March 3, 1881, contestee took the depositions of witnesses in reply. This was
all the evidence adduced, except some certificates. In January, 1882, the clerk of the Committee on Elections served on contestant notice
to file his brief. On the day designated for filing the brief, contestant's attorney appeared before the committee and applied for one week more in which to file same, which was granted; and at the expiration of that time contestant appeared and applied for further time in which to take further testimony, and filed an affi davit in support thereof. This motion was denied for reasons stated. Afterwards contestant filed a supplemental affidavit covering some of the objections
pointed to the former. Held, That the application came too late; that parties should be bound by a reasonable
degree of diligence; that it would be dangerous to establish a precedent allowing parties to contests after submitting their case to ascertain the grounds upon which he had been overruled, and to then supplement his application by a new affidavit, avoiding the decision, and thus open up the case again.
The House adopted the majority report.
APRIL 7, 1882.-Mr. CALKINS, from the Committee on Elections, sub. mitted the following
The Committee on Elections, to whom was referred the above-entitled con
tested-election case, have had the same under consideration, and beg leave to make the following report :
The case was referred by the full committee to a subcommittee to read the proofs and hear the arguments and make a report thereon. Mr. Atherton, from the subcommittee, made the following report to the full committee, viz :
MABSON vs. OATES.
The subcommittee on Elections, to whom was referred the matter of the contest of A. A. Mab
son vs. W. C. Oates, of third district of Alabama, submit the following report :
W.C. Oates and A. A. Mabson were opposing candidates for a seat in the Fortyseventh Congress from the third Congressional district of Alabama at the November election, A. Ď. 1880.
By the returns of said election, as certified to the secretary of state, Mr. Oates received 10,614 votes and Mr. Mabson received 5,636 votes, leaving a majority for the former of 4,988.
On the oth day of December, A. D. 1880, Mr. Mabson caused to be served on Mr. Oates notice of his intention to contest said election.
In said notice said contestant specified as the grounds of contest, substantially, that in certain precincts particularly named, in the counties of Lee, Barbour, Russell,
Henry, Coffee, Dale, and Geneva, in said district, the inspectors of election willfully and fraudulently made false statements as to the result of said election, returning for the contestant a much less, and for the contestee a much greater, number of votes than they respectively received ; that in one precinct (named) the inspectors refused to open the polls and hold an election, and, acting in concert with evil-disposed persons, by fraudulent representations, threats of violence, and of criminal prosecutions, prevented other persons from opening the polls and carrying on an election, whereby a large number of persons who desired to vote for contestant were prevented from exercising the right; that the canvassing officers improperly rejected the returns of certain precincts by reason of alleged inforınalities in the returns, and that the votes so unlawfully returned and manipulated were tabulated and included in the estimate by the canvassing officers, and formed a part of the vote upon which the secretary of state found, ascertained, and certified to the election of contestee.
He also alleged that the board of officers, consisting of the judge of probate, sheriff, and clerk of the circuit court in said counties (except in three precincts), frandulently, and for the purpose of giving the contestee an undue advantage, appointed inspectors of elections from the party to which the contestee belonged only, and refused to appoint any of the same (except as aforesaid) from the opposite party.
That but for the fraud, intimidation, and misconduct aforesaid, the majority of the contestant would have been 2,500 over the contestee.
Op the 5th day of January, A. D. 1881, the contestee filed an answer to said notice denying generally the allegations thereof; and specifically denying that lawful votes given for the contestaut had not been counted for him, or that votes not given for contestee had been counted for him: admitting that no election had been held in the precinct complained of, but denying that the omission had been the result of any intention to injure the contestant; admitting that the board charged with the duty of appointing inspectors were members of the same political party with contestee, but denying that they acted dishonestly, or contrary to law, and averring that they honestly and property exercised their power of appointment, and did in fact appoint inspectors from all political parties when practicable so to do.
Contestee avers that his majority was 5,000 over contestant, and that the latter admitted he was not elected.
These were the substantial issues joined between the parties, and on the 1st day of February, 1881, or nearly four weeks after the answer was filed, contestant commenced taking testimony before the probate judge of Lee County, Alabama, and took the testimony of eight witnesses, relating to the election in certain precincts in that county. All of the witnesses appear to have been examined on the same day; at least no continuances are noted by the officer. No other witnesses appear to have been examined for contestant; and on the 3d day of March, A. D. 1891, the contestee took the evidence of certain witnesses in reply, relating to the election in the same precincts.
The only other evidence adduced in addition to the above consisted of the certificates of certain persons purporting to be supervisors of election for that district, but the record fails to disclose who offered same, or how the certificates got into the report.
But how they got in, or whether these certificates of the supervisors of election are to be received as evidence, is immaterial in the view taken of the case by the committee.
The case stood in this condition until the — day of January, A. D. 1882, when the clerk of the committee served on contestant notice to file a brief of his argument herein on the day of
A. D. 1882. On that day his attorney appeared before the committee on his behalf, and made an application to continue the case for one week longer, which was granted, and at the expiration of the time the contestant, with his attorney, appeared before the committee and made an application orally that time be granted the contestant to take further testimony, or that the committee would recommend to the House the appointment of a commission to proceed to the third district of Alabama, and investigate the matters alleged in the notice of contest, and accompanied said oral request with an affidavit of the contestant in support thereof, stating that he was in Washington, D. C., from the opening of the session until the holiday recess; that he was appointed a master in chancery by the circuit court of the United States, which commenced its session in Mobile, January 10, 1882, and had to be there at the time; that shortly thereafter he got sick, went to Union Springs, did not return to Mobile till January 30, 1882, and did not believe the case would be taken up by the committee until the testiniony was printed ; that he had used due diligence to take his testimony in the case in time, but could not for the reason that no register in bankruptcy, or judge of a United States court, resided in the district, and that he had to rely on State officials, who all belonged to the same political party with contestee, and all of them were unfriendly to him and to his contest, because they all had been elected by the same unlawful methods that had seated the contestee and defeated the contestant; that he had subpænaed 200 witnesses before H. H. Smith, a notary public, and that they had been examined, and the deposition were withheld;
that he owed $15 thereon and had paid $45, dnd that Smith had agreed to forward them without further payment, and that contestant was ignorant of the reason why they were not forwarded,
That on June 20, 1801, he subpænaed 250 witnesses before W. A. Baldwin, mayor of Union Springs, and that, the point being made, Baldwin refused to take the depositions, because he was a relative of contestant; that he did not take further testimony, because he thought he could procure no officer to take them that would be even as favorable to him
as Baldwin ; that contestant made application to the probate judge of Bullock County to take testimony, but that he refused to do so, because he was elected to office by the same unfair methods that defeated contestant. He further alleged that after bis time for taking testimony had expired, and on February 28, 1881, he applied to the probate judge of Russell County to take his depositions, and that he refused because the time had expired; that the time allowed by the statutes for taking depositions was totally inadequate; that it was necessary to examine at least 1,000 witnesses to show how the electors voted.
That it would appear, by a report of the Senate Committee on Privileges and Elections of the Forty-third Congress that the elections in said State were tainted with fraud and unfairness; that the same state of things continued and existed at the election of November 2, 1880, as an investigation of said election would fully show,
The first question presented for consideration is the preliminary one of granting time to the contestant to take further testimony, or of appointing a commission to take the same.
Touching the first proposition, has the contestant shown such degree of diligence as to induce the House, under well-established precedents, to grant an extension of time; or has he been guilty of such want of diligence that his application should be denied? In the report of the contested-election case of Boles vs. Edwards, prepared by Mr. Hazelton, it is said: "To say nothing of the terms of the law
touching the extending of the time fixed to allow supplementary evidence, which clearly relates to cases in which the applicaut has taken some evidence, that is to say, has made some use of the time given him, the policy of the House has been adverse to granting extensiovs. Procrastination in these cases diminishes the object of investigation, and cheapeus the value of the final decision. The law is intended to furnish ample opportunity for taking testimony. Parties should be held to a rigid rule of diligence under it, and no extension ought to be allowed where there is reason to believe that had the applicant bronght himself within such rule there would have been no occasion for the application.' (Sunith's Cont. El. Cas., 18.)
In Giddings vs. Clark the Committee on Elections, in a report prepared by Mr. McCrary (among other things), say:
“That no such extension should ever be granted to a sitting member unless it appears that by the exercise of great diligence he has been unable to procure his testimony, and that he is able, if an extension be granted, to obtain such material evidence as will establish his right to the seat, or that by reason of the fault or misconduct of the contestant he has been unable to prepare his case.” (Smith's Cont. El. Cas., 92-3.)
In the contested-election case of Vallandigham v8. Campbell it was held :
“That the fact that the sitting member was a member of the previous Congress, and attended to his duties as such during a part of the time when by law the testimony should be taken, furnishes no reason why further time should be granted.” (1 Bartlett, p. 223.)
As to rule that great diligence is required to be proved to entitle the party to an extension of time, see the case of Howard r8. Cooper. (1 Bartlett, p. 275.)
Is diligence, within the rule, shown by contestant? He allowed almost a month to elapse after the answer was served before he took any depositions. He applied to an officer or two to take his deposition, who refused to act, and he neither tried to procure others, nor to have an officer of his own political party appointed by Federal authority. He went away from Washington to attend to affairs not so important as his contest, and left the same for a considerable time, without giving attention thereto. Were it necessary to put the refusal to grant an extension on that ground, the committee believe that the contestant has been guilty of such laches as to preclude him from the right to take further testimony.
But in order to entitle himself to an extension of time after taking testimony, the contestant must state what witnesses he desires to examine, give their names, their residence, and what they will swear to, or a sufficient reason why the same is not done. In the language of the able report in Giddings vs. Clark, 1 Bartlett, 91-94:
“The affidavits relied on are fatally defective in this, that they do not state the names of the witnesses whose testimony is wanted, nor the particular facts which cau be proved by their testimony.”
It is also laid down as a rule, in the same case, that an applicant "should produce the affidavit of some of the witnesses themselves
stating what facts are within their own knowledge.” (Same, p. 93.)