JESSE J. FINLEY vs. HORATIO BISBEE, JR.

SECOND CONGRESSIONAL DISTRICT OF FLORIDA.

Contestant charges that returns were forged and false, that the election officers were guilty of frauds, and counted too many votes for contestee, and threw out entire polls in some instances. Contestee claims that illegal votes were cast for contestant by non-registered persons.

Held, That where the result at a poll is shown by the returns to be false and fraudalent, and it is impossible to ascertain from the other evidence in the case the tras vote of said poll, the vote of such poll must be entirely rejected.

Where persons vote without challenge, it will be presumed that they were entitled to vote, and that the sworn officers of the election who received their votes performed their duty properly and honestly.

Where it is provided in a registration law that the commissioner shall "examine the list of registered voters, and erase therefrom the names of such persons as are known, or may be shown to their satisfaction to have died or ceased to have resided permanently in the county, or otherwise become disqualified to vote"; and it is further provided that "if the voter, on offering to vote, in case his name is not found on the registration list, will take an oath that his name has been improperly struck off, and shall take the oath required to be taken by persons whose right to vote shall be challenged, such person shall have the right to vote"; and such person does vote, having all the other qualifications of a voter, and his name is found on the poll-list, his vote will be presumed to be legal until the contrary be proven.

The House adopted the majority report, February 20, 1879.

FEBRUARY 5, 1879.-Mr. COBB, from the Committee on Elections, submitted the following

REPORT:

The Committee on Elections, to whom were referred the papers relating to the contested-election case in the second Congressional district of Florida, having had the same under consideration, submit the following report:

The second Congressional district in the State of Florida is composed of the counties of Alachua, Baker, Brevard, Bradford, Clay, Columbia, Duval, Dade, Hamilton, Madison, Marion, Nassau, Orange, Putnam, Suwannee, Saint John's, and Volusia.

The record in this case covers 972 pages, the brief of contestant 139 pages, and the brief of contestee 99 pages, making in all 1,190 pages of printed matter which your committee has had to examine, and which has been done with great labor.

In the general election held in this district on the ber, 1876, Jesse J. Finley and Horatio Bisbee, jr., represent said district in the Forty-fifth Congress. is, which of these gentlemen is entitled to the seat?

7th day of Novemwere voted for to And the question According to the

returns of the precinct officers of the several counties in said district the vote was as follows:

This return was acted upon by the canvassing-board of each county and the State board of canvassers. And after making several changes, which are not necessary to be mentioned here, the certificate of election was issued to the contestee, and he was sworn in and now occupies the seat in this House from the second district of Florida.

The contestant within the legal time filed his protest and notice of contest, averring that the board of State canvassers had been guilty of gross frauds in canvassing the votes of said Congressional district, making up false statements by which the votes of said counties were, or some of them, falsely stated, and that the certificate of election was wrongfully given to the contestee, &c.

These averments need not be noticed by your committee, as they do not affect the merits of the case which is now under consideration. The prima facie case having been settled by the House, the committee has nothing to do with the certificate; but the contestant makes averments in his notice of contest which reach the merits of the case before us, the substance of which we will hereafter give, not wishing to incumber this report with a copy of them in full. The notice of contest and the answer thereto are not as carefully drawn as they should have been, but in the opinion of your committee the allegations therein are sufficiently broad and specific to embrace all the evidence in the record which your committee deem necessary to consider in reaching a correct decision on the merits.

The substance of the allegations in the notice of contest which we consider material may be briefly stated as follows:

1st. That the returns of the election at the precinct of Archer No. 2, in the county of Alachua, in said Congressional district, were forged and false; that about 219 votes were falsely and fraudulently added to the vote of contestee by the election officers of said precinct and returned, which were canvassed and counted by the county and State boards of

canvassers.

2d. That the election officers who conducted the election at Archer precinct No. 2, in Alachua County, in said district, were guilty of fraud in conducting said election, and made false and forged returns of the same, thereby making it impossible to arrive at the true vote of said precinct, and demanding that the vote of said precinct be excluded.

3d. That the election officers, in canvassing the vote for Congress in said district, illegally and wrongfully excluded therefrom all the votes cast at each of the precincts of Darbyville and Johnsonville, in the county of Baker, and demands that they be counted.

4th. That the election officers, in canvassing the vote for Congress in said district, illegally and wrongfully excluded therefrom the entire poll at Jasper precinct No. 2, in Hamilton County; that the true number of votes cast at said precinct were 504, of which 320 were cast for contestant, and 184 for contestee, and contestant demands that the same be counted.

5th. And contestant asks that a true count of all the votes be made as far as the same can be done under the evidence, and insists that if this is done it will entitle him to the seat.

The contestee in his answer sets up a general and special denial, and avers, by way of counter charges, threats, intimidation, violence, and repeating at various polls in the district upon the part of the political friends of the contestant, and also that a large number of illegal votes were cast for contestant by non-residents, persons convicted of crime, minors, non-registered persons, and foreign-born persons, who did not at the time of voting present their certificate of naturalization, or a certified copy thereof, or a duly sealed and certified copy of their declaration of intention to become citizens of the United States. Your committee, after this summary of the pleadings, will examine the questions of law and facts involved in the issues, and, as the tabulated statement given above arranges the counties in alphabetical order, your committee will consider the questions arising in the counties in the same order; and,

1st. As to Alachua County, Archer precinct No. 2: It is alleged by the contestant that the election returns from this precinct should be rejected, and this we believe is conceded by contestee, for the reason that said returns were forged, and do not show the true vote. The returus from this precinct, made by its officers, therefore, are to be considered out of the

case.

The contestant further alleges and insists that not only the returns of this precinct must be rejected, but that the entire vote of the same must be excluded from the count, for the reason that the evidence is not such as to enable your committee to determine correctly what the true vote at this precinct was. But he insists further that if the committee conclude that the vote of said precinct should be counted, in that case the vote must be counted as follows:

For contestee

For contestant

Contestee's majority

180

141

39

Because he claims that the evidence tends more strongly to support this conclusion. Your committee are fully aware of the importance of the decision upon these questions, for upon it hinges the final judgment in this case. The evidence in regard to this poll is very voluminous, covering nearly 300 pages of the record, the result of the examination of over 300 witnesses of the parties. It being conceded, as we have already said, that the returns must be thrown aside, on the ground that they are false and forged, and your committee agreeing with that view, we are compelled to look to the other evidence in the case, in order to ascertain if possible what was the true vote. If the true vote can be ascertained with reasonable certainty, it must be counted. If it cannot be so ascertained and determined, then the entire vote of the precinct

should be thrown out, and nothing counted for either contestant or contestee.

.

The evidence proves that Green R. Moore, R. H. Black, and Floyd Dukes were the inspectors, and Thomas H. Vance the clerk, of the election held for Congress at Archer precinct No. 2, in Alachua County. Green R. Moore testifies that there was a poll-list kept, and thinks the names of all who voted were put down on the list; says Vance kept it, who was clerk; says he was present when the polls were closed, and says that there was a paper there which was signed by the inspectors in blank for the returns; it was not filled out when signed. He says they counted the votes, but got in a hurry, as it was late, and did not fill up the returns with the number of the votes, but just signed the blank return. Does not know whether the return so signed was ever filled up or not. He says Thomas H. Vance took charge of all the papers. He took all the papers under his arm, among them the returns of said poll. He says the ballots were first strung on a string and then said Black corrected them. He, witness, held the ballots up and Floyd Dukes strang them. They were then put in the ballot-box and left strung. R. H. Black locked the box and gave him, witness, the key, and took charge of the box. The returns were not put in the box. Not certain the box was locked. Box fastened together, he thinks, with screws. He says that after the poll was closed and the ballots counted the result was publicly announced by R. H. Black. He is certain of this fact. Black announced that Stearns had received 180 votes, and that Drew had received 136 votes. Stearns was the Republican candidate for governor, and Drew the Democratic candidate. He says that Black announced that there were 318 votes in all cast, but he says 2 of these were destroyed because they looked like two tickets were folded together. He says that Black announced the true vote and gave it to Samuel C. Tucker. Says he is positive that there was not more than 318 votes polled there that day. This number did not agree with the number of ballots strung and counted and put in the box. Black counted 277 tickets in all that were put in the box. Says the result was ascertained by counting the polllist and tally-sheet kept by the clerk, Vance The poll-list and ballots did not agree. The poll-list showed 318 names, two of which were not counted because two of the ballots were folded together, and there were only 277 ballots. Ballots were counted as they stood on the poll-list. Says Black and Vance took the returns and ballot-box to Black's house. He lived in Archer. "When I next saw them after they left the voting place, I saw them at Black's house. They kept the returns and box there from about 11 o'clock p. m. until next morning about 3 or 4 o'clock, when they took them to Gainesville, the county seat of Alachua County. I went with them." When they got to Gainesville witness says he stopped at a fire in Court House Square, and Black took the box off in the direction of Capt. L. G. Dennis's house in Gainesville. After this witness heard Dennis at his own house tell Black to take the box away, as there had been one box thrown out by being at his house. This was between nine and ten o'clock the morning after the election. Black got to Dennis's just at daylight. Witness says Dennis was a noted Republican politician at the time, and was a candidate for the State legislature. Witness says the key to ballot-box was a common key, easily duplicated. Key-hole not sealed. They had eight keys that fitted the box. Says that Black and Dukes went off from the polls during the voting and he, witness, and Vance staid. When they returned witness and Vance went out for dinner together. Witness says that Dukes could neither read

nor write; that he voted the Democratic ticket. Witness, Black, and Vance voted the Republican ticket.

This is the substance of this witness's statements. (See Record, pp. 82-88.)

Samuel T. Fleming testifies that he stood at the polls at Archer, No. 2, and took down the names of all persons who voted as they voted; says he was there all day except about 20 minutes when voting was suspended for dinner; says he kept a list of all who voted from the outside of the room; the box was inside the room near window; sent the original list kept by him to secretary of state of Florida, "but have a correct copy of it with exception of one name"; and here witness exhibited the copy, which was made part of his deposition, without objection. This list contains the names of 305 persons who, he says, voted; says he went there to take down the names of all persons who voted at that poll; did it at request of Democratic executive committee, and is positive he took down on his list the name of every person who voted from outside room that day; says he was well acquainted with the vot ing population who resided about the poll, and with the exception of four or five knew each man personally who voted there on November 7, 1876; says he knows that 500 votes were not polled at that poll that day; says none voted from inside of house but the inspectors. (See Record, pp. 89 to 93.)

Wade A. Gieger says he was at Archer precinct, No. 2, on the day of election; there before polls opened; there all day except during recess for dinner, and once after that about 20 minutes. Saw Fleming standing near the window taking down the names of the persons voting; was there when polls closed. Heard the announcement for governor but not the other candidates; R. H. Black announced from the window, in an ordinary tone of voice, that Stearns had received 180 and that Drew had received 136 votes Witness went to Black's house and tried to get Black to take the box back to the house where the voting had been done and have it guarded with box No. 1; he feared Black would tamper with the ballots. Black told him before the election that he intended to pack the box if he had a chance; Black then thought witness was a Republican as he (witness) had been attending Republican meetings and had avoided Democratic meetings and he was understood to be a Republican; was well acquainted with Black, and thinks he was capable of tampering with a ballot-box.

George Blick testifies that he went to Archer, No. 2, on the day of election; was not there all the time. "I was inspector at box No. 1, which was in same building with box No. 2, being in the other end of the building; was at box 2 two or three times during the day, perhaps oftener." When they got through counting Black or Vance announced the vote; the announcement was that Stearns, for governor, had received 180 votes, and that Drew had received 136 votes, and then witness went into the room where poll 2 was, and asked the inspector to let him see the tally-sheet; they then told witness that Stearns had received 180 votes and Drew 136 votes, and that there was very little dif ference between their vote and the other candidates. Black and Vance took box off to Black's house; witness went to Black's house that night and asked him to let witness put box No. 1 with his ballot box No. 2 in his house, and let witness sit there with him and guard the boxes until morning, when they would carry them to Gainesville. "He refused, and said he could take care of his box if I (witness) could of mine"; witness then left. Witness was at box No. 1 when announcement was made, in same building as box No. 2; there was just a partition between and two