testee was injured-that is, lost votes by reason of the marking of the ballots -the returns should be rejected, while they admitted that the marking of the ballots did not, per se, vitiate them. We are unable to find any evidence in the record that contestee was injuried by numbering the ballots. He received the highest vote that any of the local condidates on his ticket received at that poll.

Two of the election officers were sworn, and their testimony is in substance that they numbered the ballots to correspond with the numbers opposite the names on the poll-list, at the request of a United Statessupervisor, because the latter thought it was necessary to make the election legal, and they did not know to the contrary, and without any improper motives. (Record, pages 231-3; record, pages 235-6.)

Counsel for contestee admitted before the committee, in argument, that the ballots were not marked with the design or purpose of affecting the fairness of the election to the injury of contestee. It is evident that

such was not their intention. It does not appear that it was generally known among the electors that the ballots were being marked, nor is there any evidence this contestee lost a single vote by it. Only one voter is called as a witness (except the inspectors) to prove that the numbering of the ballots influenced his vote, and he testifies that it did not influence his vote. (Testimony of Aaron Huey, record, pages 483-4.) It can scarcely be claimed that the evidence is sufficient to prove that the contestee was injured by the numbering of the ballots. On the other hand, the return shows that contestant ran behind his local ticket 31 votes at this poll (record, page 488); and Inspector Tucker, a Democrat, and sheriff of the county, testified that contestant received less votes than the local ticket. (Record, page 233.)

We therefore conclude that the contestant has as much cause to complain of the numbering of the ballots as the contestee.

The same objection is made to one poll in Orange County by contestant, and testimony was adduced to sustain it. But we think the testimony insufficient to prove that contestant was injured, if any person, by the marking of the ballots at this poll. (Record, pages 471, 609, 610, 612.)

This disposes of Alachua County.

EIGHTEEN SCATTERING VOTES.

Of the 18 scattering votes, to wit, 2 in Duval, 3 in Putman, 8 in Baker, 2 in Columbia, and 3 in Suwannee, which it is claimed should be deducted from the contestant's vote, the committee conclude, without stating the reasons at length, that 11 of these votes, to wit, 8 in Baker County and 3 in Suwannee County, should be deducted from the contestant's vote, and that the remainder should be counted.

These 11 votes are rejected on the ground that they were cast by nonresidents, or non-registered voters.

Deducting the 11 votes from the 350 majority of Horatio Bisbee, jr., as already found by the committee, reduces his majority to 339, which the committee finds, from the whole case, to be his majority.

The committee, in accordance with its findings, recommend for adop tion by the House the following resolutions:

(1) Resolved, That, Noble A. Hull is not entitled to retain his seat as a member of the Forty-sixth Congress of the United States as a Representative of the second Congressional district of the State of Florida. (2) Resolved, That Horatio Bisbee, jr., is entitled to a seat as a member of the Forty-sixth Congress as Representative of the second Congressional district of the State of Florida.

JAMES M'CABE vs. GODLOVE S. ORTH.

NINTH CONGRESSIONAL DISTRICT OF INDIANA.

New notice of contest. The committee, on showing of contestant, adopted a resolution granting further time in which to serve notice of contest and to proceed to take testimony. This resolution was not reported to the House in time to be of any avail, and subsequently the committee recommended that contestant have leave to withdraw his papers.

The House adopted the report February 15, 1881.

FEBRUARY 15, 1881.-Mr. CALKINS, from the Committee on Elections, submitted the following

REPORT:

The Committee on Elections, to whom were referred the papers in the contested election-case of James McCabe vs. Godlove S. Orth, from the ninth Congressional district of Indiana, having had the same under consideration, beg leave to submit the following report:

Your committee, to whom was referred the contest in this case, report the following facts to the House:

Mr. Orth was returned elected by the election officers of the various counties comprising said district, receiving, according to their returns, 15,608 votes, and Mr. McCabe, his principal opponent at the same election, receiving, according to their returns, 15,510 votes.

On the 1st day of November, 1878, Mr. Orth received his certificate in due form from Hon. James D. Williams, then governor of Indiana. Within thirty days thereafter, and on the 12th day of November, 1878, Mr. McCabe served a notice of contest upon Mr. Örth, specifying, as is alleged, the grounds of contest particularly, therein. This notice never came into the possession of your committee.

On the 5th day of December thereafter it is alleged that Mr. Orth fully answered each ground and specification of contest and served the same on that day on Mr. McCabe.

It is alleged by Mr. McCabe in a memorial presented to your committee, duly verified by him, that he did not take any testimony to support the several allegations in his notice of contest during the time allowed by law, for the reason, among others, that there was a contest pending between other contestants, which was in process of trial before the proper tribunal in the county of Montgomery, which would, and which did, develop substantially the evidence relied upon by him to overturn the declared result in the canvass of the votes in the said ninth district. He also alleges that his little boy was quite sick after that, and subsequently died, and that his presence was necessary at the bed-side of his dying son. He further alleges in his memorial that as early as February, 1879, he discovered new evidence which he alleges tended to support an allegation of bribery by the friends of Mr. Orth, which

affected 150 voters who voted for Mr. Orth, and claimed that the estab lishment of this fact would set aside the majority returned for Mr. Orth, and clearly establish his right to a seat in this Congress. This petition or memorial was presented to your committee on the 10th day of June, 1879. There were two other affidavits subsequently filed by Mr. McCabe, signed by Mr. Dobblebower and Mr. Paterson, in which affidavits each of the affiants testified that, on information and belief, facts tending to establish the bribery aforesaid might be elicited if time were given to take depositions.

In answer to this memorial, supported by the affidavits of Mr. McCabe and the two witnesses aforesaid, Mr. Orth promptly filed his own affidavit with your committee, denying generally the specifications in Mr. McCabe's memorial and affidavit so far as it affected his right to a seat in Congress, and specifically denying any connection with, or knowledge of, the bribery alleged by Mr. McCabe. Numerous affidavits are also filed in support of Mr. Orth's claim.

An issue being thus made, your committee were called upon to decide whether under the circumstances additional time should be given the contestant to take testimony and the contestee to rebut, when it was decided, on the 23d day of March, 1880, to grant time, and the following resolution was adopted:

Resolred, That James McCabe, contesting the right of the Hon. Godlove S. Orth to a seat in this House as a Representative from the ninth Congressional district of the State of Indiana, be, and he is hereby, authorized to serve upon the said Orth within ten days after the passage of this resolution a particular statement of the grounds of said contest, and that the said Orth be, and he is hereby, required to serve upon the said McCabe his answer thereto in twenty days thereafter, and that both parties be authorized and required to proceed within ten days after the adjournment of this session of Congress to take evidence in the case, in the manner and subject to all provisions of law now in force applicable to the taking of evidence in contested-election cases, the same as if the contestant had heretofore proceeded in time to take evidence in support of his claim to the seat.

By some inadvertence this resolution was never reported to the House, and the House consequently never acted upon it.

No testimony having been taken during the time allowed by law, and the resolution not having reached the House, whereby testimony might be taken under the order of the House, the case again came up at a meeting of the committee at this session of Congress, during last December. Your committee took the case up for consideration, and it being deemed unnecessary to report the aforesaid resolution to the House for action, because there did not remain sufficient time for the taking and certifying of testimony, or for the action of the committee of the House during the remaining time of this Congress, your committee reconsidered its former action, and, on the 11th day of January, 1881, passed the following resolution:

Resolved, That in view of the short time remaining before the adjournment, and the improbability of taking evidence under the statute, the resolution heretofore passed, March 23, 1880, in reference to the contest in the case of McCabe rs. Orth, be, and is hereby, rescinded, and the contest be, and is hereby, discontinued.

In view, therefore, of all the circumstances, your committee recommend the passage of the following resolution:

Resolved, That the contestant, James McCabe, contesting the right of the Hon. Godlove S. Orth, from the ninth Congressional district of Indiana, to a seat in the Forty-sixth Congress, have leave to withdraw his papers in said contest, and that the Hon. Godlove S. Orth's title to his seat in the said Congress be, and the same hereby is, confirmed.

H. Mis. 58-21

J. C. HOLMES AND JOHN J. WILSON-IOWA CONTESTED ELECTION.

IN THE MATTER OF J. C. HOLMES, CLAIMING A SEAT FROM THE EIGHTH CONGRESSIONAL DISTRICT OF IOWA.

IN THE MATTER OF JOHN J. WILSON, CLAIMING A SEAT FROM THE NINTH CONGRESSIONAL DISTRICT OF IOWA.

Holmes and Wilson presented petitions to the House in which they set up that they were elected Representatives in Congress from the eighth and ninth districts of Iowa, respectively, at an election held November 5, 1878, by a majority of the legal votes cast at such election, and that certificates of such election have been forwarded to the Clerk of the House of Representatives. The petition does not state that any other person has been declared elected at that or any other election, or that a certificate of election had been granted to anybody by the governor of the State of Iowa, and they do not ask that the election of any other person may be inquired into.

Held, That in the absence of any evidence of action on the part of the authorities of the State in making proclamation and giving notice of the election, and canvassing the votes after the election, and in the absence of evidence that it was generally understood that an election for Representative in Congress was to be held on that day, it is impossible to hold that either Mr. Holmes or Mr. Wilson had been elected.

The House adopted the majority report January 31, 1881.

DECEMBER 21, 1880.-Mr. FIELD, from the Committee on Elections, submitted the following

REPORT:

In the matter of J. C. Holmes, claiming a seat from the eighth Congressional district of the State of Iowa; and

In the matter of John J. Wilson, claiming a seat from the ninth Congressional district of the State of Iowa.

The petition of J. C. Holmes, found on page 1 of the printed papers, sets forth his claim substantially as follows:

1st. That on the 5th day of November, 1878, being the Tuesday next after the first Monday of November, he was duly elected a Representative in Congress from the eighth Congressional district of Iowa by a majority of the legal votes cast at such election.

2d. That certificates of said election have been forwarded to the Clerk of the House of Representatives. The prayer is:

Your petitioner therefore respectfully requests your honorable body to take such action as will give him his legal rights as Representative from the eighth Congres sional district of the said State of Iowa in the Forty-sixth Congress, to which he is entitled by virtue of an election held in conformity to the laws of the United States on the 5th of November, A. D. 1878.

The petition does not state that any other person has been declared elected at that or any other election, or that any other election had been held, or that a certificate of election had been granted to anybody by the governor of the State of Iowa, and the prayer of the petition does not ask that the election of any other person may be inquired into.

The petition does not state that any rights of Holmes as a citizen or voter in Iowa have been violated, or that as a citizen or voter he has any complaint to make or any relief to ask.

The general language of the petition and papers in the case of John J. Wilson is the same as in Holmes's case; the petition of Mr. Wilson, however, also states that the Clerk of the House of Representatives enrolled the names of those persons who had the certificates of the governor which were issued to the persons who were chosen at an election held in the month of October; the prayer of this petition is the same as in the case of Holmes.

It is a fact, however, of which perhaps the House may take notice, that Mr. William F. Sapp and Mr. Cyrus C. Carpenter were elected Representatives in Congress respectively from the eighth and ninth Congressional districts of the State of Iowa, at a eneral election held on the 8th day of October, 1878, being the second Tuesday of October; that they received the certificate of the governor, were sworn in, and now hold their seats.

No person is made party respondent to the petitions; the petitions have never been served on any one, and no notice of the petitions, so far as appears, was ever given to any one by the petitioners. The papers in Holmes's case seem to have been referred to the Committee on Elections April 5, 1879 (Record, April 6, page 27), having been transmitted by the Clerk to the Speaker, and by the Speaker laid before the House, and by the House referred to the Committee on Elections.

When this reference was made nothing was said about the certificate of the sitting member, and in the schedule of papers transmitted no reference in terms was made to such certificate.

This reference was made after the discussion in the House on the memorial of John J. Wilson (Record of March 23, 1879, pages 1, 2, 3, and 4), in which the certificate of the sitting member was excluded from the resolution of reference, and the resolution in that case was adopted in form as follows:

Resolved, That the memorial of John J. Wilson and all the papers in the hands of the Clerk relating to the election of Representative in Congress for the ninth Congressional district of lowa, on the 5th of November, 1578, be referred to the Committee on Elections when appointed.

The papers which were actually transmitted to the committee and are printed contain the original certificates of Mr. Sapp for the eighth district and of Mr. Carpenter for the ninth district, as elected at a general election held on the second Tuesday in October.

It is not perhaps material to consider whether these certificates are properly before the committee or not; they are not any part of the papers of the petitioners. As no authority in either case was given to the committee to take testimony, the sole authority of the committee rests où these references, on the rules of the House, and on the laws of the United States. There is no law, and no practice of the Committee on Elections, as we understand it, authorizing the use by the committee of ex parte affidavits to determine questions of facts in deciding the merits of an election case.

The power of the House to judge of the elections, returns, and quali