lates to those in whose cases no evidence appears explaining how they cast their votes. It is true that the record fails to disclose for whom these persons voted, and if the failure is to be charged to any one, the contestee is equally at fault with the contestant. They are, therefore, both in such default that neither has the right to claim the seat when it appears that there are illegal votes in the returns unaccounted for which are greater in number than the returned majority of the sitting member. The people of the district have rights which cannot be conpromised by any failure, whether avoidable or unavoidable, either of the contestant or the contestee. They have the right to be represented by the person, and no other, who has received a majority of the legal votes of the district. It having been determined that a large number of persons voted at the election who did not comply with the statute as to the proof of their right to vote, and the number of such ballots cast being largely in excess of both the returned majority of the sitting member or the revised majority which he claims in his briefs, and the evidence not showing for whom such votes were cast, we must determine upon what rule the polls must be purged of such illegal non-registered votes. McCrary, in his Treatise on Elections, section 300, page 225, lays down the following rule: It would seem, therefore, that in a case where the number of bad votes proven is sufficient to affect the result, and in the absence of any evidence to enable the court to determine for whom they were cast, the court must decide upon one of the three following alternatives, viz: 1. Declare the election void. 2. Divide the illegal votes between the candidates in proportion to the whole vote of each. 3. Deduct the illegal vote from the candidate having the highest vote. And it is clear also that where in such a case no great public inconvenience would result from declaring the election void and seeking a decision by an appeal to the electors, that course should be adopted. It will be seen from all the authorities that where a new election can be held without injury it is the safest and most equitable rule to declare the election void and refer the question again to the people in all cases where there are a greater number of illegal votes proven, but for whom they voted does not appear, than the returned majority of the incumbent. In this case, it appearing that a number of votes many times greater than the official majority of the sitting member were illegally received, counted, and returned, in violation of the 'constitution and mandatory statutes of Pennsylvania which were adopted for the purpose of securing the purity of the ballot-box and preventing frauds at elections, and the true result of the election by the legal voters of the district has not heretofore been ascertained, and cannot, from the nature of the case, be ascertained upon the facts presented in the record, your committee recommend that the election be declared void, in order that the people of the twentieth Congressional district of Pennsylvania may have an opportunity of again expressing their choice for a Representative in Congress. Your committee therefore recommend the adoption of the following resolution: Resolved, That the election held in the twentieth Congressional district of Pennsylvania in November, 1878, for a member of this House, be, and the same is hereby, declared null and void, and the seat now occu pied by Seth H. Yocum declared vacant until filled by the people of said district in conformity with law. All of which is respectfully submitted. WILLIAM M. SPRINGER. VIEWS OF THE UNDERSIGNED MEMBERS OF THE COMMITTEE ON ELECTIONS IN THE CONTESTED-ELECTION CASE OF CURTIN V. YOCUM. The undersigned have not been able to read all the testimony in this case; they were not on the subcommittee to whom it was referred, and from whom it was reported to the full committee as depending upon questions of law arising from facts said to be undisputed by both parties. To the general reasoning of the report of the minority of the committee we assent. We think, however, that the registry law of 1874 is a valid law under the constitution of 1873. We think also that the requirements in that law of affidavits from persons not on the registry list in order to enable them to vote are mandatory, and that the requirements for the return of papers, affidavits, &c., are directory; that as it is made a crime on the part of the election officers to permit a non-registered person to vote without requiring the legal proof of qualifications, the strong presumption is, in the absence of evidence, that such officers have properly performed their duties in that respect. The law of Pennsylvania requires that the elections be held by one judge and two inspectors, and that on petition of five or more citizens two overseers of election of different political parties be appointed. These are the election officers. Each inspector appoints a clerk. After the election is finished, the ballot-boxes containing "the tickets, list of voters, and other papers," securely sealed, must be delivered to the mayor and recorder of cities, and in counties, townships, and boroughs to such person as the court of common pleas may appoint at a place provided, whenever the authorities of such city, county, township, or borough have provided a place therefor, who shall "keep the same to answer the call of any court or tribunal authorized to try the merits of such election." If no such person is appointed, then we understand that they must be delivered to the nearest justice of the peace. The affidavits of non-registered voters are required to be filed by the return judge with the prothonotary, to remain on file in his office subject to examination as other election papers are. The officers of election at the close of the polls count the votes ; make triplicate returns, with a return sheet in addition; declare publicly the votes, and post up the same on the door of the election house. The triplicate returns are inclosed each in an envelope and sealed, and one envelope, with the unsealed return sheet, containing also one list of voters, tally-papers, &c., is given to the judge, and another to the minority inspector. These judges, who are the judges of election, and are elsewhere called return judges, are required, in some cases on the first day and in others on or before the second day after the election, to deliver said returns to the prothonotary of the court of com mon pleas of the county, and on 12 o'clock of said second day the prothonotary is required to present said returns to the court of common pleas, who canvass the returns. In case any return is missing, or in case of complaint by a qualified elector charging palpable fraud or mistake, or when fraud or mistake is apparent on the return, and if in the judgment of the court it shall be necessary to a just return, the court is required to issue summary process against the election officers and overseers to bring them forthwith into court, with all election papers in their possession And if palpable mistake or fraud shall be discovered, it shall, upon such hearing as may be deemed necessary to enlighten the court, be corrected by the court, and so certified; but all allegations of palpable fraud or mistake shall be decided by said court within three days after the day the returns are brought into court for computation, and the said inquiry shall be directed only to palpable fraud or mistake, and shall not be deemed a judicial adjudication to conclude any contest now or hereafter to be provided by law. And the other of said triplicate returns shall be placed in the box and sealed up with the ballots. (Registry law, 1874.) It is to be noticed that it is not the election officers, but only one of them, viz, the return judge, who is required to file the affidavits and other papers with the prothonotary, and within two days after the election the court of which the prothonotary is clerk are required to canvass the returns, and in case of complaint by an elector or for other causes, as has been before stated, the court may order all election papers before them and have a summary hearing. In a case such as this is, where direct evidence was accessible, and in the absence of any evidence that the voters we are considering were challenged, or that any complaint was made to the court, or that any cause for a summary hearing appeared or was shown to the court, we think that it is inadmissible to infer and find that the election officers committed the crime of permitting non-registered persons to vote without requiring affidavits, merely from the fact that a copy of the registry list obtained from the commissioners' office has less names on it than are on the list of voters, and from the further fact that either there is no evidence that the affidavits of the non-registered voters were or were not taken, or there is evidence that these affidavits were not found on file in the office of the prothonotary. It is wholly on this inference and finding, and on the burden of proof, that, as we understand, the foundation of the report of the majority of the committee rests. The majority also adopt the theory, not of throwing out the precincts the legal votes of which they find to be uncertain, but of declaring the whole election void. They also do not undertake to apportion the presumed illegal votes. In Centre County it is said in the brief of the contestee, p. 24, that the registry list used, and, as we understand, required to be put in the ballotbox, was received by the election officers directly from the assessors, so that the copy from the commissioners' office would not necessarily contain the names which the assessors were authorized and required by law to add. The evidence that in some precincts the affidavits were put in the ballot-boxes is referred to in the report of the minority. That direct evidence was easily obtainable by the contestant from the ballot-boxes to show how every presumed or proved illegal voter voted, as well as to show the discrepancy between the registry lists actually used at the polls and the list of voters, appears from the statutes hereafter cited. It also appears that the election officers could be compelled to testify whether they took affidavits or not, in addition to any testimony that might have been obtained from the alleged illegal voters or any other person, and in addition to the evidence of the taking of affidavits which an examination of the ballot-boxes might have disclosed. The eighth section of the registry law of 1874 requires that "every ballot voted shall be numbered in the order in which it shall he received, and the number recorded by the clerks on the list of voters opposite the name of the elector from whom received." The ballot-boxes should contain, besides the ballots, "the list of voters and other papers," and are required, as has been stated, to be kept securely bound with tape and sealed, to "answer the call of any court or tribunal authorized to try the merits of such election," unless when required for the purpose of holding another election, and then on the morning of such election all the contents of the ballot-boxes are to be burned and totally destroyed. (Section 13 of the registry law.) We understand this thirteenth section to mean that if the ballot-boxes are "called" by any proper court or tribunal authorized to try the merits of such election before they are required to be used at the subsequent election, then they are to be held to answer such call; otherwise the old ballot-boxes are used at the election to be held, the contents being destroyed on the morning of such election. An inspection of the ballots in the boxes and a comparison with the list of voters by the numbers would show how every person voted. The opening of the ballot-boxes would, of course, also show whether any affidavits had been put in as a part of the "other papers." The nineteenth section of this registry law provides that "in trials of contested elections, and in all proceedings for the investigation of elections, no person shall be permitted to withhold his testimony on the ground that he may criminate himself or subject him to public infamy, but such testimony shall not afterwards be used against him in any judicial proceedings except for perjury in giving such testimony." (See also sections 103 and 859, Revised Statutes United States.) Illegal voters can be compelled to testify for whom they voted. The careful provisions of the Pennsylvania election laws were framed apparently for the purpose of making it possible in every case to ascertain what illegal votes were cast, and for whom cast, so that in each precinct the poll could be purged of the illegal voters. The burden of proof, even if the doctrine of declaring an uncertain election void be adopted, is, we think, as stated by the minority, on the contestant to show that more illegal votes than the returned majority of the sitting member were cast, and either that they were cast for the sitting member or that it is impossible to ascertain for whom they were cast, and this impossibility is an actual impossibility arising from the circumstances of the case, which could not have been remedied by the use of due diligence, and not an impossibility arising wholly from the absence of evidence that could have been taken. The party having the burden cannot by his own neglect create the impossibility. The report of the majority on this point cites McCrary on Elections, page 225, section 300, but that report does not quote what almost immediately follows the clause quoted, viz: Let it be understood that we are here referring to a case where it is found to be impossible by the use of due diligence to show for whom the illegal votes were cast. If in any given case it be shown that the proof was within the reach of the party whose duty it was to produce it, and that he neglected to produce it, then he may well be held answerable for his own neglect; and because it was his duty to show for whom the illegal votes were cast, and because he might by the use of reasonable diligence have made this showing, it may very properly be said that he should suffer the loss occasioned by deducting them from his own vote. On page 227 Mr. McCrary says: We think the safer rule would be for the contestant to show not only that a certain number of illegal votes were polied, but also to show, if he can, that they were cast for his opponent. It is not intended by this to assert that the rule above quoted from Duffey's case is positively erroneous, but only to intimate a doubt, and to express the opinion that the ordinary principle which requires the party holding the affirmative to prove the facts and all the facts necessary to make out his case is the better rule, and that it will in all cases be safer to follow it. In this case the facts set out in the report of the minority show peculiar reasons why the opinion expressed by Mr. McCrary should be adopted. The forty days given by the statute of the United States to the contestant to take his testimony-in-chief expired on the 18th day of Febru ary, the day of the election of certain township and other officers in Pennsylvania. The time of the taking of testimony by the contestee did not begin until the day after said election. Unless the ballot boxes could be held "to answer the call of any court or tribunal authorized to try the merits of such election" before the morning of the 18th day of February, the contents of the ballot-boxes would be totally destroyed. The contestant not only took no steps, either by a subpoena duces tecum in this case or by an application to a court of general equity jurisdiction, to preserve the contents of the ballot-boxes, but resisted the attempt made by the contestee to have them preserved in certain counties, as set out in the report of the minority. This case is so voluminous as to require many weeks to read the tes timony and determine all the controverted facts alleged to be material by one party or the other. On the facts reported to be conceded or undisputed by both parties, which are the foundation of the reports made to this House, we think the election ought not to be declared void, and no one contends that on these facts Mr. Curtin ought to be seated. If the House is to take final action on the case upon the reports now made, we think the resolution reported by the minority should be adopted. W. A. FIELD. |