by showing such disqualification in each individual case by the voter's own oath, or other adequate proof, and then showing for whom he voted, so that the House could make the proper deductions in deciding this case. This the sitting member has not attempted to do, and failing this, has not a right to ask the House to reject their votes upon secondary and far less satisfactory proof.

The committee therefore held that the vote of Monroe County should be counted.

The votes of some precincts where fraud was apparent were rejected. In each case it appeared that more votes were returned as being cast than were found on the list of qualified voters. The custodians of the ballot boxes had refused to allow them to be opened, and it was hence impossible to purge the returns by ascertaining what votes were cast by legal voters. There was no alternative but to reject the returns. One or two precincts which had been rejected by the county courts for technical reasons were counted by the committee. On the whole case, if the vote of Monroe County was not rejected contestant had a majority of 559 votes, and the committee recommended that he be seated.

The minority (Mr. Cessna) agreed in regard to the rejection of the precincts rejected for fraud, and rejected one or two in regard to which the majority found the evidence insufficient, and also held that the vote of Monroe County should be rejected, which would elect contestee by a majority of 911. The legislature of the State of Missouri had already held that there was no valid election in Monroe County. It was clear to the minority that the registration in this county was carried on in reckless violation of the law, as the result of a corrupt conspiracy entered into by the superintendent of registration for a consideration. The circumstances of the appointment of the members of the board who finally acted showed conclusively that two of them were selected for the express purpose of acting in harmony with the third, who was opposed to a strict enforcement of the law. The board had power to summon witnesses before it, but it summoned none, and the condition of affairs was such that it was unsafe for anyone to appear as a voluntary witness. The number of voters registered by this board was four times greater than the number registered two years before, though there was every reason for believing that the former registration was a full one, and there had been no material increase in the population of the county. It was a historical fact that the vast majority of the people of this county were disloyal during the war, and that it furnished some twelve hundred soldiers to the rebel army. Witnesses who had examined the registry lists under which this election was held testified that they found the names of very many persons who had borne arms in the rebellion, but refused to give their names on the ground that it would not be safe. There was certainly as strong ground for the rejection of this county as there was for the rejection of Calloway County in a case from the same district in the preceding Congress (Switzler es. Anderson), with the addition of the very important fact that in this case the fraud was shown to be the result of a corrupt conspiracy. The minority recommended that the vote of this county be rejected, and that contestee retain his seat. The House adopted the resolution recommended by the minority, retaining contestee in his seat, by a vote of 108 to 55.

[2 Bart., 777-810.]

1

(20) SEGAR.

Claim for additional representation. Majority report adverse; minority report favorable to claimant. Claimant not admitted.

Majority report by Mr. Paine; minority report by Mr. Stevenson. Under the apportionment act of 1850 Virginia was entitled to eleven Representatives. When the State of West Virginia was admitted, it was with three Representatives, leaving, if the original number was to be preserved, eight for Virginia. The constitutional convention called under the reconstruction laws passed an ordinance providing for the election of eight Representatives from eight specified districts, and a ninth Representative from the State at large. Mr. Segar was elected from the State at large. The committee reported against his right to a seat. The ordinance under which he had been elected was new legislation; it had never been submitted to the people or to Congress for ratification, and the State had no right to fix the number of its Representatives. All the other reconstructed States had been admitted with the same number of Representatives they were entitled to under the old apportionment, and there was no reason why Virginia should be an exception. By the enfranchisement of the former slaves Virginia now had a representative population large enough to entitle her to an additional Representative, but all the other Southern States were in the same condition, and a number of Western States had received large additions to their population by immigration. If they must wait for the apportionment under the census of 1870 there was no reason why Virginia should not also wait.

A minority of the committee reported in favor of the claimant. There had never been any law depriving Virginia of her full eleven Representatives, and it would be unsafe to infer such a law from the fact that West Virginia had been admitted with three Representatives. The whole reconstruction proceedings of Virginia had been approved by Congress, thus ratifying the provision providing for the election of a ninth Representative at large. The State had a representative population more than large enough to entitle it to nine representatives, and law and equity both called for the admission of claimant. The House adopted the resolutions presented by the majority, refusing to admit claimant, without division.

[2 Bart., 810-822.]

(21) REID s. JULIAN.

Fraud; irregularities. Majority report for contestee; minority report for contestant: Contestee retained the seat.

Majority report by Mr. Cessna; minority report by Mr. Randall. If all the precinct returns had been counted, the contestant would have a majority on the face of the returns, but the county canvassers of Wayne County counted the north poll and refused to count the south poll of Wayne Township. This gave contestee the majority. If both polls should be counted or both rejected, contestant would have the majority. The question of counting or rejecting these polls was the main issue in the case. A few charges of mistakes and irregularities were made in regard to other polls, and the majority and minority differed somewhat in regard to them, but they did not control the

case. These two precincts of Wayne Township had been separated for the first time at this election. Only one registry had been made for the whole township, and duplicate copies of it were used at the two polls. The officers officiating at both polls were residents of the northern precinct. The committee examined the question, both from the point of view of purging the poll, and of rejecting the returns and counting only votes proved aliunde. From the first standpoint, it was evident that the returns were incorrect and at least required purging. Contestee was returned as receiving only 475 votes, and he called 508 witnesses who swore clearly that they were qualified voters and voted for him. The votes of 43 others were satisfactorily proved by their own testimony or that of persons who gave them tickets and saw them vote them. The evidence of the voters themselves was "as full, complete, and reliable as it is possible for human testimony to be given. It would be received in any court of justice in the country, and held sufficient to establish any fact in a civil, or even criminal case." But the contestee insisted, and the committee sustained him, that the whole return should be rejected, and only votes proved aliunde counted. It was well settled that a whole poll should be rejected either for (1) want of authority in the election board, (2) fraud in conducting the election, or (3) such irregularities or misconduct as render the result uncertain. This poll should be rejected on the first and third grounds, and if fraud also was not proved against the election officers, it was proved that they gave abundant opportunity to others to commit it. No injustice. could be done to either party or to any legal voter by throwing out a fraudulent poll. Both parties could make proof of the legal votes cast for them; and if contestant had not done so in this case it was evident that it was because to have done so would only have confirmed the proof of fraud.

Aside from the testimony of the voters showing a result different from the returns, there were many fatal irregularities. There was no lawful registration of voters. Only one of the registering officers was a resident of the south precinct, while a majority were residents of the north precinct. The registry was therefore legal as to the north and illegal as to the south precinct. Some voters from the north precinct. voted in the south precinct, and the rulings of the election officers were such that any might have done so. The general character and sympathies of the voters in the two precincts were similar, and yet in the southern ward contestee ran proportionally much further behind his ticket than in the northern ward. The board adjourned for supper before the completion of the count; outsiders were allowed in the room; the ballot box was left unguarded during the adjournment; the inspectors were chosen by the crowd instead of by the judges, and the ballots were carried outside the precinct to be counted-all in violation of law. Under the law the election officers were required to be residents of the election district, but in this case the inspector and both judges resided outside of the district. They could not be officers de facto, for a person could not be an officer de facto who did not possess the qualifications requisite for officers de jure.

If no poll was rejected, but certain corrections required by the evidence were made, and the votes proved for contestee in the south poll of Wayne Township in excess of the return were added to his vote and deducted from that of contestant, contestee would have a majority of 64 votes. If this poll were rejected, and the votes proved aliunde

counted, contestee would have a majority of 602 votes. The committee recommended that he retain his seat.

The minority (Mr. Randall) dissented. If any reasons could be given for the rejection of the south poll, they were equally valid against the north poll, and whether both were rejected or both counted the result would be the same. The registry in both polls was equally irregular. The officers officiating at the south poll were at least officers de facto, whose acts were valid in the absence of fraud. The result of the election for governor was announced at the south poll before the completion of the whole count, but the law prohibiting this was merely directory, and, at any rate, this could not vitiate any votes except those for governor. In the north ward the vote was similarly announced on both governor and Congressman, so that contestee had nothing to gain on this point. In both wards the election was held at engine houses, and in the evening, for convenience, the counting was done in other places, where fire and lights could be had. Both boards adjourned for supper, but the board in the south ward carefully locked the ballot box and the room where it was left, while the other board left both unlocked. These irregularities were not sufficient to reject either ward, and certainly they gave no excuse for singling out the south ward for rejection.

The evidence was entirely insufficient to show fraud. The testimony of the officers of election showed that no fraud was committed or permitted. A recount of the ballots made at the instance of contestant did not differ materially from the original count. The presumption of the correctness of the returns could only be overthrown by the best evidence, which was the ballots themselves, and not oral testimony. But if the testimony of the voters was received, there were only 496 who testified clearly that they voted for contestee. The excess could be added to his vote and deducted from contestant, and contestant would still have a majority of 85 votes. The minority recommended

that he be seated.

The House, by a vote of 127 to 50, agreed to the resolutions presented by the majority, and contestee retained the seat. [2 Bart., 822-871.]

(22) ZEIGLER S. RICE.

Disloyalty. Majority report to declare seat vacant; minority report for contestee. Contestee retained the seat.

Majority report by Mr. Butler; minority report by Mr. Burr. Contestant charged that contestee was ineligible under the fourteenth amendment. The whole committee held that if this was so it gave no claim to contestant. The majority held that the charge was sustained. Contestee, as a member of the legislature of Kentucky, had taken the oath to support the Constitution of the United States. He had afterwards voted for the resolution, declaring that if the Government should attempt to coerce the Southern States, Kentucky would furnish means to resist the invasion of the South. This resolution was supported by many of the strongest Union men in Kentucky at the time, and the committee held that a vote for it before the war had actually commenced was not an act of disloyalty. But the testimony showed that contestee was from that time on a secessionist. When the rebel army was driven out of Kentucky he went out before it, and did not return

until it returned. He was, during the war, captured near the rebel lines, and claimed protection as a Confederate officer. He had admitted at the time that he was on his way to doing recruiting service for the rebel army. The committee recommended that the seat be declared

vacant.

The minority (Mr. Burr) held that the charges entirely failed of proof. So far from contestee being a secessionist, the testimony showed that all his influence exerted itself in the opposite direction, and that a whole regiment of volunteers refused to enter the rebel army on account of his refusal to join it, and most of them afterwards enlisted in the Union Army. He had gone out of Kentucky, in the first place, to collect some money, and had remained out in order to avoid some desperate characters who were hostile to him, and were likely to take advantage of the unsettled state of affairs to assassinate him with impunity. The witnesses who testified to his admissions at the time of his capture were all impeached, and their testimony was so inconsistent that all of it could not be true. It was fully contradicted by the testimony of General Garfield, before whom contestee was brought when captured, and who released him as not being even a suspected person.

The House adopted, without division, the resolutions presented by the minority, and contestee retained the seat.

[2 Bart., 871-897.]

(23) EGGLESTON vs. STRADER.

Irregularities. Report for contestee.

Contestee retained the seat.

Contestant asked that the

Report by Mr. Hale.

Contestee had a majority of 211 votes. vote of two wards in the city of Cincinnati be thrown out. The rejection of either would elect him.

The First Ward was asked to be thrown out because of lack of authority in the election board. There was no proof of fraud. Two members of the board, one a Democrat and one a Republican, were present at the opening of the polls, and a third, a Democrat, was elected by the voters present, under the law. Later in the day a Democratic officer left on account of sickness in his family, and another Democrat was selected in his place by the election board, without objection from anyone, and sworn in. The regularly appointed officer returned once or twice during the day, and whenever he was present he acted. The substitute judge was undignified and disorderly in his conduct during the day, but not to such an extent as to intimidate anyone. He with the other Democratic judge, voted to receive some 25 votes which the Republican judge thought were illegal, but a difference of opinion on this number of votes in a large poll was no sign of fraud. Contestant claimed that the substitute judge was not even an officer de facto, because he did not serve by color of anything that under any circumstances could have been a legal appointment, there being no vacancy in the election board, and no such officer known to the law as a temporary judge. But the committee held that

It takes but little to constitute an officer de facto as affects the right of the public. The exercise of apparent authority under color of right, thus inviting public trust and negativing the idea of usurpation, is sufficient. There need have been no vacancy in the office claimed to be holden; indeed, no such office may have ever existed,