FORTY-SIXTH CONGRESS.

JOHN M. RRADLEY vs. WILLIAM F. SLEMONS.

SECOND CONGRESSIONAL DISTRICT OF ARKANSAS.

Contestant took some portion of his testimony more than forty days after service of contestee's answer, but within forty days of the date when he commenced taking testimony, when contestant claims the time commenced to run.

Held, That the time when contestant may take testimony-in-chief commences to run from the date of service of answer of contestee upon him. The law furnishes each party ample opportunity for taking testimony if ordinary diligence is used. The result of an election can in no manner be affected by the failure of certain townships in the district to hold an election where no reason is assigned and shown for the failure to hold such election.

The circulation of false and fraudulent posters a few days before an election announc ing another person as the candidate of a party for Congress, and intended to deceive the voters of that party, and lessen the vote which would otherwise have been cast for contestant is dishonorable, and if the evidence established the complicity of contestee, and its effect upon the voters produced a result different from that which otherwise would have occurred, the election should be set aside and a new one ordered.

The House adopted the majority report March 31, 1880.

MARCH 8, 1880.-Mr. SAWYER, from the Committee on Elections, submitted the following

REPORT:

The Committee on Elections, to whom was referred the contested-election case of John M. Bradley vs. William F. Slemons, from the second Congressional district of Arkansas, having had the same under consideration, beg leave to report :

The claim of the contestant to the seat occupied by the returned mem ber is based upon a variety of alleged grounds, many of which are entirely unsupported by any testimony whatever. Before commencing the discussion of the merits of the controversy, we deem it proper to express our disapproval of that portion of contestee's answer to contestant's notice of contest which indulges in personalities. The practice itself is unbecoming the dignity of the House, and we regret the neces sity has arisen of imposing on the committee the duty of calling attention to the subject.

The Congressional district is composed of twenty counties, in only three of which was testimony taken, viz, in the counties of Jefferson, Chicot, and Hempstead, and at the very threshold of our inquiry we are

met with an objection by the contestee to the consideration of any portion of the evidence taken by the contestant in the counties of Chicot and Hempstead, for the reason that the forty days allowed by law to contestant in which to take testimony-in-chief had expired before the taking of evidence in said Chicot and Hempstead Counties commenced. Protests of contestee were duly entered on the record against the taking of such testimony. Contestant, however, contends that, as he commenced taking testimony on the 18th day of February, 1879, the forty days allowed him commenced running from that day, and this view, if correct, will entitle him to the benefit of the testimony taken in those two counties.

Section 107 of the Revised Statutes provides that the time allowed for taking testimony shall be ninety days, and it shall be taken in the following order: The contestant shall take testimony during the first forty days, the returned member during the next forty days, and the contestant may take testimony in rebuttal only during the remaining ten days of said period.

In order to settle definitely from what time the forty days allowed to contestant in which to take his testimony-in-chief should begin to run, it is provided by the act of Congress upon the subject of contested elections, approved March 2, 1875, that section 107 shall be so construed as to require that, in all cases of contested elections, the testimony shall be taken within ninety days from the day on which the answer of the returned member is served upon the contestant. (Statutes 1875, chap. 119, section 18, p. 338.)

The answer of contestee to contestant's notice of contest was served on contestant on the 29th day of January, 1879 (page 6). The time, then, for taking contestant's testimony-in-chief expired on the 10th day of March following. The taking of testimony by him in Chicot and Hempstead Counties was commenced in Chicot County on the 20th day of March, ten days after the expiration of the time allowed to him, and was closed in Hempstead County on the 28th day of March. The provisions of the statutes referred to cannot be disregarded, and contestant, without leave of the House, was unauthorized to take further testimony-in-chief after the 10th day of March, when his time for that purpose expired.

The law is intended to, and does, furnish each party ample opportu nity for taking testimony, if ordinary diligence is used; and especially is this the case, when it is considered that a party may take testimony at two or more places on the same day. This wise provision of the law furnishes a strong reason against an extension of time in ordinary cases like the present. (Boles vs. Edwards, second session Forty-fifth Con gress; Vallandigham vs. Campbell, Thirty-fifth Congress; Carrigan vs. Thayer, Thirty-eighth Congress.)

No application was made to the House by contestant for an extension of time, and the question is now clearly presented whether, without any cause whatever being shown therefor, the testimony thus taken out of time shall be admitted and considered. Another important fact may be considered in this connection. It appears from an examination of the record of the testimony that the time actually consumed by contestant in taking the entire testimony returned, including that taken beyond the time allowed by law, was only eighteen days; thus estab lishing the fact beyond controversy that he could, by the use of ordinary diligence, have taken the entire testimony within the time allowed him by law without trespassing upon the time allowed to contestee. In view of these facts, no reason exists why the committee should consider the

testimony taken in Chicot and Hempstead Counties, or should recommend that it be considered by the House.

The first point made by contestant is, in effect, that a corrupt conspiracy was formed and partially carried into effect, by the friends of the sitting member, to regulate and control the election in Jefferson County, at least, in his interest, regardless of the provisions of the laws of Ar kansas regulating elections. As preliminary to an examination of the testimony upon this point, and as incidentally connected therewith, it may be proper to remark that the evidence clearly discloses the following facts:

For the purpose of correcting abuses which had prevailed in the ad· ministration of public affairs in Jefferson County in the summer of 1878 and several weeks prior to the election for county officers, which was held on the 8th day of September of that year, two months prior to the Congressional election, several prominent men of both political parties held conferences at different times and places with a view of presenting to the people for their suffrages a county ticket composed of candidates from each party best qualified for the several positions to be filled, and who would not be objectionable to either, which was termed a compromise ticket. These conferences were held, as the testimony discloses, solely with reference to a county ticket; no allusion whatever being made to the Congressional race. Indeed, no portion of the entire evidence refers, even remotely, to any other than the candidates for county offices, nor does it appear that the Democratic Congressional convention had then been held.

The result of these several conferences was, a compromise ticket was presented to the county conventions of the two parties and finally nominated by each, although not with entire unanimity. An anti-compromise ticket was also nominated, also composed of candidates from each party. The result of the election was in favor of the compromise ticket. (See pages 60, 62, 63, 66, 70, 76, and 80).

To return to the evidence in the record bearing upon the alleged conspiracy under consideration, we find that upon cross-examination of George Haycock, a witness for the sitting member, he is questioned particularly in regard to the authenticity of Exhibit A, which is attached to his deposition, and which exhibit is as follows:

Exhibit A, referred to in George Haycock's deposition.-F. J. Wise, N. P.

HOW THE SALE WAS MADE.

Colonel HAYCOCK. Well, gentlemen, under the benign influence of this back room of a bar-room, we have grave matters of state to settle, and they must be handled with the skill of a diplomat and the courage of a Cæsar, Major Newman, or of General Grant.

Colonel CLAYTON. Well put in; a good amendment.

General PORTIS. This plan may require both the skill of the politician and the bravery of a soldier, and Colonel Corcoran and I only promise the latter. As to pulling the wires, you gentlemen must do that.

Colonel PRIGMORE. Well, by God, I don't propose to have any fighting in mine, but if you want any plans carried out in a dexterous way, any midnight watching done, I am your man.

Colonel WHITE. Well, I want this thing done as near by the statute as we can. But if there must be a break over, and we, as high contracting firms, make agreement to that end, then we must stand to each other.

Colonel HAYCOCK. Here is my hand on that. [They shake.]

Colonel CLAYTON. And mine.

Colonel PRIGMORE. And mine.

General PORTIS. And mine.

Major NEWMAN. Aud mine, and my dainty little foot, too, and my heart, too. [They all shake and pull Newman's big toe. ]