MINORITY REPORT. The undersigned, a minority of the Committee of Elections, with the permission of the House, submit the following statement in the contested election case from the 21st congressional district of Pennsylvania: The House referred to the committee, 1st, a certified transcript of the governor's proclamation; 2d, a letter of the governor; and 3d, certain papers mentioned in said letter; and instructed the committee "to report to the House what person, according to said proclamation, letter, and papers, is entitled prima facie to represent said 21st district in the 41st Congress, pending any contest that may arise concerning the right to such representation." Two questions arise: 1st. Are the papers, or any of them, legal evidence? 2d. If accepted as legal evidence, what do they prove in the absence of rebutting evidence? The first document is, as to all the districts of Pennsylvania except the 21st, clearly competent evidence; for it is the duly authenticated transcript of a proclamation made by the governor in strict accordance with the statute of Pennsylvania. The following is the language of the statute: It shall be the duty of the governor, on the receipt of the returns of the election of mem bers of the House of Representatives of the United States, as aforesaid, by the secretary of the Commonwealth, to declare by proclamation the names of the persons so returned as elected in the respective districts; and he shall also, as soon as conveniently may be thereafter, transmit the returns, so made, to the House of Representatives of the United States. And the proclamation contains the following language: [GREAT SEAL.] In the name and by the authority of the Commonwealth of Pennsylvania, John W. Geary, governor of the said Commonwealth. Whereas, in and by an act of the general assembly of this Commonwealth, approved the 2d day of July, A. D. 1839, entitled "An act relating to the elections of this Commonwealth,' it is made the duty of the governor, on the receipt of the returns of the election of members of the House of Representatives of the United States by the secretary of the Commonwealth, to declare by proclamation the names of the persons returned as elected in the respective districts; * * * * And whereas the returns of the several elections held on Tuesday, the thirteenth day of October last, in and for the several districts for representatives of the people of this State in the House of Representatives of the Congress of the United States for the term of two years from and after the 4th day of March next, have been received in the office of the secretary of the Commonwealth, agreeably to the provisions of the above recited act, whereby it appears that in the 1st district, composed of the 2d, 3d, 4th, 5th, 6th, and 11th wards, in the city of Philadelphia, Samnel J. Randall has been duly elected; in the 21st district, composed of the counties of Indiana, Westmoreland, and Fayette, no such returns of the election have been received by the secretary of the Commonwealth as would, under the election laws of the State, authorize me to proclaim the name of any person as having been returned duly elected a member of the House of Representatives of the United States for that district: Now, therefore, I, John W. Geary, governor as aforesaid, have issued this, my proclamation, hereby publishing and declaring that Samuel J. Randall, (containing no name for the 21st district) * * * * * * * * * have been returned as duly elected in the several districts beforementioned as representatives of the people of this State in the House of Representatives of the Congress of the United States for the term of two years, to commence from and after the 4th day of March next. Given under my hand and the great seal of the State, at Harrisburg, this seventeenth day of November, in the year of our Lord one thousand eight hundred and sixty-eight, and of the Commonwealth the ninety-third. By the governor : Secretary of the Commonwealth. JOHN W. GEARY. This proclamation was therefore an official act, and the transcript referred to the committee is legal evidence so far as it goes. But it proves nothing in favor of either of the claimants to the seat for this particular district. The letter which is dated February 23, 1869, more than three months after the date of the proclamation, is not authorized or made an official act or document by any statute of the State of Pennsylvania. In it the governor does not declare, as required by law to do in his proclamation, that John Covode has been returned as elected in the 21st district, but that certain affidavits "indicate the election of Hon. John Covode." The following is the entire letter: PENNSYLVANIA Executive Chamber, Harrisburg, Pennsylvania, February 23, 1869. SIR: I have the honor to transmit herewith additional affidavits and evidences of fraud submitted to me in regard to the election of member of Congress in the 21st congressional district of this State. These affidavits were taken before officers properly authorized to administer oaths, and indicate the election of Hon. John Cov de. Most respectfully, your obedient servant, Hon. EDWARD MCPHERSON, JNO. W. GEARY, Governor of Pennsylvania. Clerk House of Representatives, Washington, D. C. STATE OF PENNSYLVANIA, OFFICE OF THE SECRETARY OF THE COMMONWEALTH, I hereby certify that the signature of John W. Geary, governor of this Commonwealth, to the attached letter, is his genuine signature; and that the accompanying affidavits and papers are the originals filed in this office from time to time, since the election held on the 13th of October last. In testimony whereof, I have hereunto set my hand, and caused the seal of the secretary's office to be affixed the day and year above written. [SEAL.] F. JORDAN, Secretary of the Commonwealth. This letter, being unauthorized by law, has no official character. It is not the act of the governor, but of the individual. It is no more legal evidence than would be the unsworn statement of any other citizen of Pennsylvania. Furthermore, it is not under the great seal of the State. It is correctly characterized in the authenticating certificate of the secretary of the Commonwealth, and in the resolution of the House, as a "letter." It does not, like a solemn proclamation, begin "In the name of the Commonwealth of Pennsylvania," and end with the words "Given under my hand and the great seal of the State," but, like an ordinary epistle, it begins with "Sir," and ends with "Most respectfully, your obedient servant." It is true that it is subscribed "Jno. W. Geary, governor of Pennsylvania." But a letter addressed by the governor, as this is, to the Clerk of the House, recommending an applicant for a position in his department, might have been, and probably would have been, subscribed in the same way, and if so subscribed, would have had the same official character which this letter has. And an authenticating certificate of the secretary of the Commonwealth would contribute as much of official char acter to such a recommendation as the secretary's certificate in this case does to the letter. Inasmuch as this letter is not legal evidence, it is not material to inquire whether if it really were competent evidence, it would amount to prima facie proof that either claimant is entitled to the seat. The affidavits, which are ex parte, were not authorized by any statute, and are not evidence in this case. If they were evidence, they would not, apart from the letter, show a prima facie right to the seat in either of the claimants. The only ground upon which it can be alleged that either the letter or the affidavits are legal evidence is that the resolution of the House, instructing the committee to report "what person, according to said proclamation, letter, and papers, is entitled, prima facie, to represent" the district, imparts the character of legal evidence to these papers. But, if such a resolution of the House would make the letter and affidavits of Mr. Geary legal evidence, it would also make the letter and affidavits of Mr. Doe or Mr. Blank legal evidence; and might enable parties to give such letters and affidavits, whether signed or not, any desired form, to establish any desired prima facie case; for not one paper in one hundred, of those referred to the Committee of Elections by the House, is ever read or seen by ten members of the House before it reaches the committee. But, the truth is, the reference of a paper is not decisive in one way or the other of its competence as evidence. That question is always to be decided by the committee, and by the House. The undersigned recommend the adoption of the following resolution: Resolved, That the proclamation, letter, and papers, referred to the Committee of Elections, do not show what person is entitled prima facie to represent the 21st district of Pennsylvania in the 41st Congress, pending any contest that may arise concerning the right to such representation. H. E. PAINE. JOHN C. CHURCHILL. ADDITIONAL MINORITY REPORT. In the matter relating to the representation from the 21st district of Pennsylvania, the undersigned, concurring in the report presented by the minority, ask to present for consideration the following, as a separate additional minority report: The House resolution of March 5th contains instructions to the committee, and is as follows; Resolved, That so much of the proclamation of the governor of Pennsylvania, dated November 17, 1868, as relates to the election of representative in the 21st district of said State, and the letter of said governor, dated February 23, 1869, relative thereto, together with the papers referred to in said letter, be referred to the Committee of Elections, when appointed, with instructions to report to the House what person, according to said proclamation, letter, and paper, is entitled prima facie to represent said 21st district in the 41st Congress, pending any contest that may arise concerning the right to such representation. Most singular in its framework is this resolution of instructionsmost skilfully drawn and guarded in its requirements. In the light of the several papers referred to in that resolution, and excluding all others, the committee are charged to report to the House what person, "according to said proclamation, letter, and paper, is entitled prima facie to represent said 21st district in the 41st Congress, pending any contest that may arise concerning the right so such representation." The laws of Pennsylvania regulating elections provide for returns to be made by the election officers of a voting district or precinct, to those of a county, and by them to the return officers of a congressional district, and by them, in turn, to the secretary of the Commonwealthafter which the duty of the governor is specified as follows: It shall be the duty of the governor, on the receipt of the returns of the election of members of the House of Representatives of the United States as aforesaid by the secretary of the Commonwealth, to declare by proclamation the names of the persons so returned as elected in the respective districts, and he shall also, as soon as conveniently may be thereafter, transmit the returns so made, to the House of Representatives of the United States.-Purdon's Digest, page 383, par. 114. By this law the governor is required only to "declare by proclamation" the result certified to him by the return judges, and to transmit the returns made by said judges to the House of Representatives. In this the governor acts simply as a ministerial officer; he is invested with no judicial functions whatever; he is not required to examine and determine any controverted point, but only to declare to the public by proclamation such result as has been previously determined and certified to his hand by officers specially charged by law with that duty. On Tuesday, October 13, 1868, an election was held in the various congressional districts of Pennsylvania for representatives in the 41st Congress. Returns were made according to law from subordinate officers, and finally returns were certified from each congressional district to the secretary of the Commonwealth. On the 17th day of November following, the governor (John W. Geary) issued his proclamation, declaring the "names of persons returned as elected in the several districts," except in the 21st district, composed of the counties of Indiana, Westmoreland and Fayette, concerning which he declares that "no such returns of the election have been received by the secretary of the Commonwealth as would, under the election laws of the State, authorize me to declare the name of any person as having been returned duly elected |