THIRTY-SEVENTH CONGRESS, SECOND SESSION. KLINE vs. VERREE, of Pennsylvania. Where the contestant failed to specify with particularity the grounds of the contest, held that the requirements of the statute were not complied with, but contestant was permitted to specify orally the grounds upon which he based his contest. Where it was alleged that there was a mistake in the original count, and upon reopening the boxes the allegation was apparently substantiated, as the boxes had been for three months in an insecure position, where they might have been tampered with, it was held that the recount should not overturn the original sworn returns. IN THE HOUSE OF REPRESENTATIVES, Mr. DAWES, from the Committee of Elections, made the following report: The third district of Pennsylvania is composed of the 11th, 12th, 16th, 17th, 18th, and part of the 19th wards of Philadelphia. The election here contested was held on the second Tuesday of October, 1860, which was the general election for State officers. The whole number of votes returned as cast at that election for representative in Congress was 18,204, of which there were returned for Mr. Verree 8,931 votes, for Mr. Kline 8,909 votes, and for Mr. G. J. Hamilton 359 votes, Mr. W. Morgan 5 votes, making Mr. Verree's returned majority over Mr. Kline 22 votes. The several wards constituting this congressional district are subdivided into divisions or election precincts, at which the polls are opened and ballots received. The election at each of said divisions is conducted by one judge and two inspectors, who are chosen annually; and for the protection of minorities the law of the State of Pennsylvania provides that at the election of such inspectors each voter shall vote for but one, and that the two persons receiving the highest number of votes shall be declared elected inspectors. It sometimes happens, however, where one political party can give a majority larger than the entire vote of the other, a division of its vote can be so adjusted as to secure the election of both inspectors against the spirit and object of the law. Each inspector appoints one clerk to assist at the election, and upon the application of twenty citizens the court of common pleas can appoint three watchers to be present at each precinct. It is made the duty of the judge in every election division on the night of the election to make out and subscribe a certificate of the votes there given, and on the next day to file the same with the prothonotary of the court of common pleas, and to return a duplicate of the same to a meeting of all the judges and inspectors from the several divisions of the ward, who are required to ascertain the vote of the ward, and return the same by one of their number, duly elected by them as return judge for such ward, to a meeting of the board of return judges, to be hold on the Friday next succeeding the election, whose duty it is to add together all the ward returns and issue the certificate of election. Upon the receipt of a certificate from these return judges setting forth the number of votes cast for each candidate, ascertained in the foregoing manner by the secretary of state, it is the duty of the governor, by proclamation, to declare who is elected. Mr. Verree was declared elected, as well by the certificate of the return judges as by the proclamation of the governor, and was admitted to, and still holds, the seat. Immediately upon the issue of the governor's proclamation, the contestant served upon the sitting member his notice of contest. As the sufficiency of this notice was the subject of much discussion before the committee, it is here copied in full: PHILADELPHIA, November 7, 1860. SIR: You will take notice that I will contest your right to a seat in the House of Repre sentatives as the member from the third congressional district of Pennsylvania in the 37th Congress, the grounds of contest being as follows: 66 1. That at the election held on the 9th of October, 1860, many persons voted illegally. 2. That sundry persons in the sixteenth and eighteenth wards, not white male citizens of the United States," were permitted to vote for you. 3. That many persons voted for you in the sixteenth, eighteenth, and other wards, on false naturalization papers. 4. That sundry persons, not residents of the State, voted for you in the serenteenth and other wards. 5. That sundry persons not of the age of 21 years were permitted to vote for you in the eighteenth and other wards. 6. That large sums of money were expended in the eleventh, seventeenth, and other wards, in procuring for you the votes of persons not qualified electors. 7. That in the fourth division of the nineteenth ward the poll was closed during the day, in violation of law. 8. That one of the election officers of the sixteenth ward stated he would make one hundred dollars inside, and urged on an officer of the twelfth ward to do likewise and help him to secure your election, for which he was to receive said one hundred dollars; and I believe that I shall be able to prove that said officer did commit a fraud to benefit you, and the effect of which fraud, so committed by him, was to secure you the certificate of the return judges. 9. That the returns made to the return judges are not correct. By fraud and error they were made out so as to give you a majority over me of the votes polled in said congressional district. This will appear by an inspection of all the papers returned by the officers of the election as required by law, in the nineteenth ward and other wards in said district. 10. The examination of the tally papers and all of the other election papers relating to said congressional election, and deposited in the office of the prothonotary of the court of common pleas, and deposited in the several ballot-boxes in said congressional district, together with a recount of all the ballots deposited in said ballot-boxes in said district at said election, will show that you were not elected, and that I was elected. 11. You will further take notice that I claim to have received a majority of all the votes legally cast at said election, and that I am therefore legally entitled to represent the qualified electors of the third congressional district of Pennsylvania in the thirty-seventh Congress. Respecfully yours, &c., Hon. JOHN P. VERREE. JOHN KLINE. The sitting member, in answering said notice in conformity with the act of Congress, November 28, 1860, and before "admitting or denying the facts alleged therein," or "stating specifically any other grounds upon which he rests the validity of his election" as required by said act, took exception to this notice of contest for these reasons, viz: That said notice is uncertain, vague, and indefinite, and not such a statement of the grounds of contest as is contemplated and required by the act of Congress in such case made and provided. That the statements and allegations are so general in their character that I have not been able to anticipate or determine what you propose to prove; consequently I shall be unable to prepare for cross-examination, or to provide countervailing or rebutting testimony in my defence against those statements and allegations. I therefore shall except to any testimony offered to be taken or taken by you under said notice. The sitting member then proceeded with more particularity to specify his grounds of objection to each head of said notice, setting out in what respect the charges therein contained were defective by reason of uncertainty and generality, and concluding with specific denials. There was no amendment of the specifications on the part of the contestant. These objections to the sufficiency of the specifications of contest were removed when the evidence was taken before the magistrate; and at the outset of the hearing before the committee the sitting member filed a motion to dismiss the entire proceedings for the same reasons. These objections to the generality and vagueness of the notice of contest are more fully set out in the answer of the sitting member, to be found in Mis. Doc. of last session, No. 6, page 11. The committee were compelled therefore to pass upon the sufficiency of this notice before considering the merits of the case. They heard counsel of sitting member and contestant upon this preliminary question, and gave to its consideration much time and attention. As a question of practice it is of import ance. The statute of 1851 (9 Statutes, 569) enacts, that "whenever any person shali intend to contest an election of any member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officers or board of canvassers authorized by law to determine the same, give notice in writing to the member whose seat he designs to contest of his intention to contest the same, and in such notice shall specify particularly the grounds upon which he relies in the contest." Did this notice specify particularly the grounds of this contest? It is proper to state that the contestant waived before the committee all grounds of contest, except such as may be found in the last clause of the tenth specification. The attention of the House is therefore called to this specification, and to the particularity of the grounds of contest which that clause in it contains. It is in the following words: 10. The examination of the tally papers relating to said congressional election, and deposited in the office of the prothonotary of the court of common pleas, and deposited in the several ballot-boxes in said congressional district, together with a recount of all the ballotbores in said district at said election, will show that you were not elected, and that I was elected." Without subjecting this specification to the criticism that the last clause is inseparably connected with the first, so that the whole must be taken together and constitute but one allegation quite different in its meaning from any just interpretation of the last clause, if standing alone, suppose it were a simple allegation, standing alone, that "a recount of all the ballot-boxes in said district will show that you were not elected, and that I was elected," in what just sense could it be said that such an allegation is a compliance with that provision of law which requires of the contestant to "specify particularly the grounds upon which he relies in the contest?" What is it, more or less, than the assertion, "you were not elected and I was," or "I received more votes than you?" The common-law pleading, "you did" and "I didn't," would have every element of" particularity" in it which is contained in such a specification. The only precedent under existing laws approaching this in vagueness and generality, which has come under the notice of the committee, is that of Vallandigham vs. Campbell in the 35th Congress. But there is this to distinguish that case from the present one: In that case the sitting member took no exception to the motion of contest for want of particularity when served upon him, or in his reply thereto, or during the taking of testimony; but, on the other hand, filed his own answer in the same general terms, and the contest proceeded without objection on either side till the hearing before the committee, where the objection was first raised, when it was too late for either party to retrace his steps or correct the mistake. Whatever might have been the opinion of that Congress as to the sufficiency of those specifications, it might well have been held in that case-indeed, it could not well have been held otherwise that any such defect in specification or answer had been waived by the parties. But in the present case there could be no waiver. The exception to the sufficiency of this motion was taken at the earliest practicable moment, and in time for the service of a new notice. It was also renewed at the taking of the testimony and at every stage of the hearing. There was no excuse offered for a non-compliance with the law in this particular, and the committee could discover none. The question was thereupon presented to the committee, shall parties contesting seats in the House of Representatives be held to conduct that contest according to the requirements of the statutes of the United States, or be permitted, without expense, to depart from and disregard the plainest provisions of those statutes in this regard, founded in the plainest principles of justice and fair dealing? Long before the statute was enacted parties to contested elections, both in England and this country, were held to a compliance with the same rule.—(Leib's case, Clark & Hall, 165; Luttrell vs. Hume, 4 Doug. Elect. Cases, 25; Skerret's, 2 Pars., 509; Carpenter's case, 2 Pars., 537; Kneass's case, 2 Pars., 553.) Several of the cases here cited are from the State of Pennsylvania, and, so far as the local law of the State where this contest has arisen forms a rule for the guidance of the parties, are clear and decisive against the sufficiency of this notice of contest. And the committee, after a careful consideration of this question, have come unanimously to the conclusion that this notice is in no just sense a conformity with the require ments of the statute, or the well settled rules which should govern in all contests of this kind. The committee have not felt at liberty to pass over this entire disregard of well settled rules and statute enactments without notice, lest proceedings like these should grow into precedents, and parties to contests should hereafter meet committees, not for the purpose of trying prepared and defined issues, but for the purpose of making vague and uncertain complaints, and indulging in endless and unsatisfactory discussions. The committee were, however, induced, from a desire that no injustice might by any possibility be done the contestant, to permit him to orally "specify" and "particularize" the grounds upon which, under the last clause of the 10th specification, this contest is based. And they are, that in the 3d division of the 11th ward the division inspectors made a mistake in counting the votes for each of the candidates, to wit, that they counted for the sitting member ten more votes than he was entitled to, and the contestant seven less; and that by a like mistake in the 3d division of the 16th ward they counted for the sitting member sixteen more votes than he was entitled to, and for the contestant fourteen less. In the 4th division of the same ward, by a like mistake, they counted for the sitting member twenty-two less than he was entitled to, and for the contestant four more than he was entitled to. In the 1st division of the 18th ward, by a like mistake, they counted for the sitting member one less, and the contestant one more than each was entitled to. In the 3d division of the same ward, by a like mistake, one more vote was counted for the sitting member than he was entitled to. In the 4th and 6th divisions of the same ward, a like mistake was made of one vote in favor of contestant in each. In the 7th division of the same ward, by a like mistake, two votes less for sitting member and two more for contestant were counted than each were entitled to. In the 1st division of the 19th ward, by a like mistake, seven votes were counted for sitting member more than he was entitled to. In the 2d division of the same ward, by a like mistake, two votes for sitting member and one for contestant were counted more than each was entitled to. In the 4th division of the same ward, by the same mistake, three votes for sitting member and four for contestant were counted more than each was entitled to. And in the 11th division of the same ward, by a similar mistake, two for sitting member and one for contestant were counted more than was the true vote for each. The whole claim of contestant may be stated in tabular form, as follows: |