1st Session. No. 6, pt. 2. HOGE.vs. REED. APRIL 3, 1869.-Ordered to be printed. Mr. BURR, in behalf of himself and Mr. RANDALL, from the Committee of Elections, presented the following VIEWS OF THE MINORITY. The undersigned, constituting a minority of the Committee of Elections, being unable to agree with the majority in their conclusions concerning the right to a seat from the 3d district of South Carolina, ask leave to present the following reasons for their dissent: The election was held on the 3d of November, 1868. The only candidates appearing to have been voted for were J. P. Reed and S. L. Hoge, each of whom claims the seat, and each presents record evidence in support of his claim. Whilst the cases were so before the committee, but as yet not investigated, the House by resolution instructed the committee to institute an investigation in all such upon a preliminary question in cases where the question might be put in issue before the committee. That resolution is as follows: House resolution adopted March 22, 1869. Resolved, That in all contested election cases referred to the Committee of Elections, in which it shall be,alleged by a party to the case, or a member of the House, that either claimant is unable to take the oath prescribed in the act approved July 2, 1862, entitled "An act to prescribe an oath of office, and for other purposes," it shall be the duty of the committee to ascertain whether such disability exists; and if such disability shall be found to exist the committee shall so report to the House, and shall not further consider the claim of the person so disqualified without the further order of the House; and no compensation will be allowed by the House to any claimant who shall have been ineligible to the office of representative to Congress at the time of the election, and whose disability shall not have been removed by act of Congress. Under that resolution the eligibility of one of the claimants, J. P. Reed, was put in issue, and the committee unanimously reported to the House that, by the statements of the party himself and his express admissions, he was, under the 3d section of article 14, ineligible to the seat. That report was accompanied by a joint resolution, sanctioned by a minority of the committee, proposing to remove the disabilities; and thus the claim of J. P. Reed to the seat is, for the time being, suspended by direction of the House. Yet, although we may not consider his papers in support of his own claim, until he shall have been relieved of disabilities, we may and must consider his papers, in order to determine whether the papers relied upon by his competitor show upon the face superior title to the seat in dispute. But, as a standard by which to judge the legal sufficiency of given papers, the following points are presented, as embodied in the general election laws of South Carolina, passed September 26, 1868. After providing for certifying the returns from precincts to counties and from counties to the governor, secretary of state, and comptroller general, the law provides as follows: SEC. 35. The secretary of state, comptroller general, attorney general, and treasurer shall constitute the State cauvassers, three of whom shall be a sufficient number to form a board. The next section provides for filling any vacancy that may exist in the board where a majority may fail to appear; and the succeeding sections define the duties of the canvassers and of the secretary of state as follows: XXXVII. The board when thus formed shall, upon the certified copies of the statements made by the boards of county canvassers, proceed to make a statement of the whole number of votes given at such election for the various offices, and each of them voted for, distinguishing the several counties in which they were given. They shall certify such statements to be correct, and subscribe the same with their proper names. XXXVIII. Upon such statements they shall then proceed to determine and declare what persons have been, by the greatest number of votes, duly elected to such offices, or either of them. XXXIX. They shall make and subscribe, on the proper statement, a certificate of such determination, and shall deliver the same to the secretary of state. XL. The board shall have the power to adjourn, from day to day, for a term not exceeding five days. XLI. The secretary of state shall record in his office, in a book to be kept by him for that purpose, each certified statement and determination which shall be delivered to him by the board of state canvassers, and every dissent or protest that shall have been delivered to him by a canvasser. XLII. He shall, without delay, transmit a copy, under the seal of his office, of such certified determination to each person thereby declared to be elected, and a like copy to the governor. XLIII. He shall cause a copy of such certified statements and determinations to be printed in one or more of the public newpapers in each county if any shall be published therein. XLIV. He shall prepare a general certificate, under the seal of the State, and attested by him as secretary thereof, addressed to the House of Representatives of the United States in that Congress for which any person shall have been chosen, of the due election of the persons so chosen at such election as representatives of this State in Congress, and shall transmit the same to the said House of Representatives at their first meeting. With these provisions of law before us, let us recur to the papers presented by the parties claiming the prima facie right. And first in order of execution, the "certificate" of the determination reached by the board as to "what persons have been, by the greatest number of votes, duly elected to such offices." That certificate as published by the secretary of state, in obedience to section 43-it being the only certificate published or even issued under the law-is as follows so far as relates to this particular district: THE STATE OF SOUTH CAROLINA : By the board of State canvassers: Whereas (here follows a recitation of statutes aforesaid, as also of the holding of an elec tion for various officers and the returns received,) and upon examination of the returns received it appears that (here follow names of parties elected to offices, including representa tives from the first and second districts, and therein) Hon. J. P. Reed, representative of the 3d congressional district, (here follow names of parties elected in other districts,) have been duly elected, by a majority of votes, representatives to the 41st Congress of the United States. * * * The concluding portion of this certificate is as follows: We do, therefore, by virtue of the powers in us vested, certify and declare that the abovenamed parties have been duly elected to fill the various offices referred to. Given under our hands and the seal of the State, in the city of Columbia, this 1st day of December, in the year of our Lord 1868, and in the 93d year of the independence of the United States. F. L. CARDOZO, Secretary of State, NILES G. PARKER, Treasurer South Carolina, DAN'L H. CHAMBERLAIN, Attorney General, Board of State Canvassers. - This certificate appears in the Daily Phenix, published at Columbia, South Carolina, Saturday morning, December 5, 1868; and in the same paper, now in the hands of the committee by reference from the House, is the statement from the board required by section 37: A statement of the whole number of votes given at such election for the various offices, and each of them voted for, distinguishing the several counties in which they were given. They shall certify such statement to be correct, and subscribe the same with their proper names. That statement is as follows: The following is the official vote by counties, with the exception of Edgefield, where there was no election: We certify the above statement to be correct. F. L. CARDOZO, Secretary of State, This last statement was published also in the Phenix of December 5— of the same date as the preceding documents-indeed they were but separate parts of the same publication bearing date December 1, 1868. On December 2 the board of State canvassers executed their certificate as required by section 38, and the secretary of state on the same day executed to each of the parties named in the several districts the certified copy of such statement required by section 42, which certified copy for the third district is, in its commencement, as follows: [SEAL.] BY THE BOARD OF STATE CANVASSERS. TO J. P. REED. After then reciting the laws and the election it declares, or certifies J. P. Reed to "have been duly elected by a majority of votes,” which document is officially signed by all the board of State canvassers except the attorney general. Based upon this declaration of the State canvassers is a commission in the following form: [SEAL.] THE STATE OF SOUTH CAROLINA. By his excellency Robert K. Scott, governor and commander-in-chief in and over the State aforesaid: To J. P. REED: Whereas, in pursuance of an act entitled "An act providing for the next general election, and the manner of conducting the same," passed on the 26th day of September, in the year of our Lord 1868, an election has been held for representative in the 41st Congress of the United States for the third congressional district and upon the examination of the returns which have been received it appears that you, the said J. P. Reed, have been duly elected by a majority of votes; I do therefore, by virtue of the powers in me vested, commission you, the said J. P. Reed, to represent the people of this State as a member of the House of Repre sentatives of the 41st Congress of the United States. This commission to continue in force from the 4th of March, 1869, to 4th March, 1871. Given under my hand and the seal of the State in Columbia, this 2d day of December, in the year of our Lord 1868, and in the 93d year of the independence of the United States of America. By the governor: F. L. CARDOZO, ROBERT K. SCOTT. These are the papers primarily relied on by Mr. Reed; now for the exhibits in favor of Mr. Hoge. The only papers in support of his prima facie claim are, first, a certificate by the board of State canvassers, purporting to have been executed on the same day as that held by Mr. Reed; and, second, a separate "statement of the board of State canvassers of South Carolina in the case of the election of J. P. Reed." Let us consider the certificate first. It differs from that held by Mr. Reed only in three · particulars, and need not therefore be set out here, except so far as the difference is to be considered. Reed's certificate declares him to "have been duly elected by a majority of votes." Hoge's declares him to "have received a majority of legal votes." The next point of difference is that Hoge's paper bears the signature of Daniel H. Chamberlain, attorney general, in addition to the names of State canvassers signing Reed's; and last, the paper presented by Hoge bears to the left of the official signatures of the canvassers the words, "Robert K. Scott, governor of South Carolina." Before considering the "statement," let us refer to each of these points of difference in the certificates. The requirement of the law of South Carolina (sec. 38) upon the canvassers is, "shall determine and declare what persons have been, by the greatest number of votes, duly elected." Reed's paper says, "have been duly elected by a majority of votes." Hoge's says, "have received a majority of legal votes." In view of the requirements of this section, Reed's paper is a strict compliance with the statute; Hoge's a departure from the text, and lack of compliance with its terms. As to the next point of difference in the fact that the attorney general signs Hoge's paper and not Reed's, either paper is in that regard a compliance with the law, (sec. 35,) for by it any three of the canvassers constitute a board. And last, as to the name of Governor Scott appearing on the left of Hoge's paper, as no section of the law requires him to execute or attest such a paper, it is of none effect on the one, nor is its lack in any degree significant in the other. These are all the differences on the faces of the papers so far. Hoge presents no commission by the governor, which Reed does. Hoge shows no published certificate of the result in his favor, as required by section 43, whilst Reed shows strict compliance with that section. Let us now determine as to the priority of certificates and the reason prompting the canvassers to execute two: Each certificate is on its face dated December 2, 1868, but there is conclusive evidence on the face of the papers before us, showing that Hoge's certificate, purporting to have been executed December 2, was, in point of fact, executed at a period many days subsequent to that time. The newspaper before the committee, containing the publication made by the board, is dated December 5, and in it they state that Reed was elected, which, though the statement is itself dated December 1, they would hardly have permitted if they had, before the 5th, reviewed their first act, and determined a different result. But still stronger evidence to show the fact that Hoge's certificate was not made on the day it bears date, is the testimony of his notice of contest served upon Reed. It is dated December 28, in 1868, |