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To go into full details would occupy too much space. I will refer to only a few in addition to what has been already said.

In Limestone County the registration lists purporting to be furnished are manifestly not copies of original registration lists, but of some prepared for the occasion or taken loosely from some list or source not appearing. The poll-lists furnished in copy do not come from the probate court, but from one inspector by deposition, each one a delinquent, and a violator of law and duty, without excuse or explanation shown, and subject to the gravest suspicions as to their motives in withholding the poll lists from the returns made after elections. These three precincts alone involve 344 alleged illegal votes.

Registrar Martin, page 814, swears to loss of registration list of 145

names.

In Florence precinct, while it is claimed that there were 280 non-registered voters, a challenger was present, who challenged vigorously over 100 electors for other reasons, but not one as not registered. (Deposition of Jones, 881.) In Triana precinct 275 non-registered are claimed out of a vote of only about 412 voters. Registration book No. 1, certified to as lost or mislaid, may account for this. Poll-list not signed by inspectors. As two witnesses were examined by contestee as to this poll, and were present challenging, it would have been well to have had a copy of the registration which was at the poll on the day of election to see whether the names were not in fact on that. We have got neither this nor any revised lists made by the registrars at any time since 1875. They must now be presumed to have been on, and that there is some mistake about the copies furnished by the judge or purporting to be. In Lauderdale County it appears that no registration book as required by law could be found. (Rec., p. 907.)

In Madison County only one of two poll-lists are duly certified and verified as genuine.

Names are pasted on in printed slips instead of being written, as the law requires.

Inasmuch as books of registration were not made and kept according to law, but it was found on loose sheets, the lists sent to each precinct on the day of election would have been the best or most satisfactory evidence of who were registered, and in no instance have we got them. All of the evidence has been examined upon this issue of non-registration with an anxious desire to do the contestee and his alleged proof full justice. There seems to have been wanting on his part no amount of industry and professional skill in the preparation and argument of his case. But there is a conspicuous absence of evidence needed to establish his claim, if well founded. Even the judges of probate have failed to give such oral evidence as was needed to make the proof of registration and poll-lists satisfactory and complete. Their testimony is more significant for what was not asked in questions than for what it contains, especially after the objections thereto made and indicated at the time. There is also a total failure to call the assistant registrars and the inspectors and managers of elections, and to produce the books kept by the former, and the lists used at the polls, and to supply what is wanting in the papers produced to verify the same as all and accurate. They had been attacked by contestant, and his objection to the proof indicated in many respects. Presumptions of regularity and full discharge of duty in the respects now in question are balanced by other presumptions in favor of contestant, and much shaken, if not entirely overthrown, by evidence otherwise. With such proof as appears of looseness and irregularity in regard to the registration and poll lists,

and their use, with no evidence from the electors themselves, or the registrars or election officers, in the absence of the lists used at the polls, and upon the facts already shown in proof and already indicated, a comparison between the alleged lists produced fail utterly to prove the alleged charges of the contestee, and we feel constrained to find the issue against him.

We are asked to presume that all registrars did their duty, that judges of probate had all the papers which the law provided should be sent to them, that the poll-lists not signed were the genuine and true ones, when they could be so easily manipulated without complicity on the part of the judges, in order to overcome all the presumption in favor of the legality of the votes cast. I cannot do it in the face of so much evidence as appears to weaken those presumptions invoked by contestee.

There is another consideration which ought to be noted as a very strong reason at least why contestee should be held to the strictest rules of evidence, if not as justifying the claim that the ballots of voters not on the registration lists apparently should not now be rejected after they were offered and deposited without challenge or objection at the time. Under the law of Alabama, as already stated, any qualified voter, if not on the copy of registration lists with the inspectors conducting the poll, and challenged, may register at the time and on the spot, or take the requisite oath and then rightfully vote. If he is not challenged, and is allowed to vote without doing this, the failure of duty on the part of the registrar or inspectors may unjustly deprive the elector of his vote. The case would perhaps come within the spirit, if not the strict letter, of section 2007 of the Revised Statutes of the United States.

The remarks of Mr. Calkins in case of Curtin v. Yocum, although not in all respects applicable to this case, are pertinent and forcible, and we quote them:

I call the attention of the members of the House especially to the conclusion reached by Judge Briggs in construing this law. He says: "By accepting the vote," referring to the non-registered voter who presents himself at the polls without an affidavit, &c.-"by accepting the vote without demanding the proof they deprive the voter of the opportunity of furnishing it." To construe the law as contended for by my friend from Pennsylvania (Mr. Beltzhoover) makes it a mere trap, for the reason that the voter presumes, or he has a right to presume, that he is registered. He has lived in the precinct the time required by law; he has paid his tax; the assessor has been to his house; he knows his name ought to be on the registry list, and he goes up to the ballot-box with the ballot in his hand. They take his ballot and deposit it in the ballot-box, and afterward, when he cannot furnish the proof, it is contended his vote is an illegal one, while if the election officers had called his attention to it at the moment he could have supplied the evidence required and established his right to vote to the mode prescribed. But that evidence was not demanded. He voted knowing that he had a legal right to vote, but the legal evidence of his right was not required of him by the election officers. And applying the same doctrine as in Wheelock's case, "you cannot deprive the legal voter of the right to vote by reason of the failure of the officer to do his duty," and it seems to me that the position is unassailable.

Regulations may be merely directory, and if the officer of election or the voter does not follow them they do not necessarily vitiate the vote when deposited and received.

The present case is a very strong one for the application of that rule, in the absence of any statute making registration a prerequisite, and where the system of registration is so imperfect and loosely managed.

In the record there appears to have been sundry rulings of the magistrate as to admission of evidence, &c., to which exceptions were taken. The course pursued in this respect was manifestly irregular. But this becomes now immaterial and unimportant. The various motions made H. Mis. 35-7

by the respective parties as to striking out evidence have been considered and denied either as immaterial or not well grounded.

The alleged want of proper certification to the depositions taken by Robert W. Figg has been rectified by his affidavit and further certificate by way of amendment.

I have paid no attention to attempted personal imputation upon parties and counsel not affecting the evidence.

My opinion, therefore, is that contestant was elected and should have the seat, and I approve of the resolutions attached to the report of Mr. Hazelton, while I dissent from some of the views embodied in that report.

WILLIAM M. LOWE vs. JOSEPH WHEELER.

EIGHTH CONGRESSIONAL DISTRICT OF ALABAMA.

Mr. BELTZHOOVER, from the Committee on Elections, submitted the following as the

VIEWS OF THE MINORITY:

The undersigned are not able to concur in the report of the majority of the committee. The evidence shows that the election was conducted with perfect fairness on the part of Wheeler and his supporters. Indeed, there is no pretense that there was unfairness anywhere except at Meridianville and Lanier's precinct, and the most extraordinary efforts on the part of Mr. Lowe and his attorneys utterly fail to prove any fraud or unfairness at these boxes.

The voluminous character of the record has precluded nearly all the members of the committee from giving it that thorough examination which is necessary to a perfect understanding of the case, and, as a consequence, the report of the majority contains errors, to a few of which we will refer:

1ST.

The majority consider evidence introduced by Mr. Lowe which purports to prove matters which are not set up in the notice of contest, and refuse to consider evidence of matters proven by primary and uncontroverted evidence which are specifically set up and insisted upon in the answer of the contestee, these matters being such as the law required them to consider, and such as the majority of the committee have considered in other cases during this term of Congress.

2D.

Evidence which the majority in this report say is good and sufficient to establish the allegations of Mr. Lowe they in the same report say is insufficient to support the allegations of Mr. Wheeler.

3D.

Certain witnesses give evidence regarding votes cast for both Mr. Lowe and Mr. Wheeler.

The evidence is precisely of the same character, the votes referred t

are precisely of the same class, the evidence is given by the same witnesses, and in some cases it is given in the same breath and in answer to the same questions, and yet the majority of the committee count the votes for Mr. Lowe and refuse to count the votes which the proof showswere cast for Mr. Wheeler.

Worse than that, the report of the majority counts votes for Mr. Lowe upon statements of witnesses who swear they do not know anything of it personally, and they refuse to count votes for Mr. Wheeler the rejection of which is positively proven.

For instance: Mr. Harraway swears he does not know personally that. any Lowe ballots were rejected, but he swears that he does know that. a Wheeler ballot was rejected.

On this evidence the majority count 4 votes for Mr. Lowe and refuse to count any votes for Mr. Wheeler.

Mr. Hill, who was illegally examined in chief during the last ten days, when the law only allowed evidence in rebuttal, testified and admitted that his knowledge that 22 Lowe ballots were rejected was not based upon his actual knowledge, but it was based pretty much upon what a clerk told him. This illegal evidence was taken at an unlawful time, so that Mr. Wheeler could not take evidence to refute it, and yet the majority, on such evidence, count 22 votes for Mr. Lowe.

We observe six other instances where Mr. Lowe's witnesses testify that ballots cast for Mr. Wheeler were not counted, and yet the majority of the committee refuse to give Mr. Wheeler the benefit of their evidence, although their evidence is precisely the same as the best evidence which is relied upon by Mr. Lowe, and although in one instance alone this failure makes a loss of over 50 votes to Mr. Wheeler.

4TH.

The majority of the committee accept and consider in substantiation of Mr. Lowe's allegations testimony which is secondary in its character, which is contradicted by Mr. Lowe's own witnesses, and which uncontradicted proof shows has been altered and forged since it went into the hands of Mr. Lowe's agents or attorneys. Mr. Wheeler made a proper and seasonable motion to have the forged evidence stricken from the record, but the majority of the committee failed to strike said forged matter from the record.

5тн.

The majority of the committee refused or failed to deduct votes of unregistered voters who illegally voted for Mr. Lowe, giving two reasons therefor:

1. Because they say registration is not required in Alabama.

2. Because there is no evidence which establishes definitely and identically for whom they voted.

The first position was so untenable that it was not assented to by all the members of the committee who voted for the majority report; and we hereafter will show it to be entirely without foundation.

The second position is positively contradicted by the proofs. In the limited examination we have been able to give to this point we find the names of over 500 of these unregistered voters who the witnesses swear positively voted for William M. Lowe. Some of this evidence is given by Mr. Lowe's witnesses, and by Republicans who swear that they saw the voters hand their ballots to the inspectors with Mr. Lowe's name on said ballots.

This evidence is positive, unimpeached, and unquestioned.

6TH.

The majority of the committee refused or failed to deduct illegal votes of unregistered voters who voted for Mr. Lowe at Courtland and other precincts, where the proof shows there was no person registered "as required by law," and consequently there was no legal registration, and Mr. Ranney, of the committee, gives as a reason for this action, and it is the only reason given, that "contestee does not set up a want of legal registration as vitiating the election at any precinct." In making this statement Mr. Ranney was mistaken.

The following allegations are contained in the answer of the contestee:

*

*

Contestee alleges that at the following precincts of Lawrence County, viz, Courtland, Red Bank, &c., 450 persons were allowed to vote, and did vote, for contestant, some of whom had no right to vote at the precincts where they cast their votes, and others who voted at said precincts were not legal voters, and had no right to vote at all.

And contestee also alleges that said persons who voted for contestant at said precincts "did not have a right to vote, for the reason that they had never been registered as required by law."

It is here shown that the allegations of Mr. Wheeler emphatically state there was no legal registration at Courtland or that he uses the equivalent words that the persons who voted for contestant had “not been registered as required by law."

The deposition of the probate judge of Lawrence County proves that these allegations are correct, and that there was no legal registration at that precinct.

Under a similar registration law the majority of this Committee on Elections decided in the case of Bisbee vs. Finley that eight precincts in Brevard County should be rejected, and the proof in that case does not show that the registration in those precincts was as incomplete and illegal as it is shown in this case to have been at the precinct of Courtland.

It is shown by primary evidence that none of the voters at Courtland were registered as required by law, and that with regard to 189 of them there was no pretense at registration, and yet the majority count these illegal votes for Mr. Lowe.

7TH.

The majority of the committee refused or failed to deduct the illegal votes of non-resident persons who voted for Mr. Lowe, although the proof is positive and uncontradicted that such persons voted for Mr. Lowe, and that they were not residents of Alabama, but residents of other States.

The witnesses give evidence regarding this matter similar to the following:

John Wilson was not a resident of Alabama; he lives in Tennessee, and he never pretended to claim this as his home.

Wesley Phillips was a non-resident of the State of Alabama; he lives in Tennessee. Squire Holsten was a non-resident of the State of Alabama; he lives in Georgia, and is an illegal voter.

John O'Neal was a non-resident of the State of Alabama; claims his home in Georgia.

Berry Blair was a non-resident of the State of Alabama; lives in Tennessee; was an illegal voter.

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