DIGEST OF ELECTION CASES.

FORTY-FIFTH CONGRESS, SECOND AND THIRD SESSIONS.

PETER D. WIGGINTON vs. ROMUALDO PACHECO..

FOURTH CONGRESSIONAL DISTRICT OF CALIFORNIA.

Held, That the board of supervisors, provided for under sections 429, 430, and 446 of the statutes of California, is an official body having a jurisdiction defined by law, required to keep a record, which is to be signed by its chairman and clerk, and this record, duly certified to the secretary of state, must stand.

Ex parte affidavits cannot be considered as evidence in these cases.

The votes of persons whose names are not on the “Great Register" of voters (California) must be rejected.

Ballots upon which the judges of election had written the names of the voters and the words "challenged, &c.," must not be rejected. If the voter had placed this indorsement upon the ballot, or any other words by which it could be distinguished, they should be rejected.

When a ballot clearly designates the office to be filled, and the name of the person voted for, the voter is never permitted to contradict his ballot by evidence that he intended to vote for a different person, or for the same person for a different office.

The House adopted the majority report February 7, 1878.
Peter D. Wigginton sworn in.

JANUARY 31, 1878.-Mr. JOHN T. HARRIS, from the Committee of Elections, submitted the following

REPORT:

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

The contestant, Peter D. Wigginton, claims the seat now occupied by Romualdo Pacheco upon the grounds following:

1. That in the county of Monterey, in the State of California, being one of the counties composing the fourth Congressional district, the board of county canvassers, being the board of supervisors of said county, met at the proper time and place and canvassed the votes cast for Representative in Congress; and that said board found, and declared as the true result of the vote, that Peter D. Wigginton received 988 votes and

5

Romualdo Pacheco received 1,208 votes for Representative in Congress in said county. That after the adjournment sine die of said board, the clerk thereof, who was not one of the members of the board, altered and changed the vote of said county, so as to make it appear that Mr. Wigginton received only 986 votes in said county. That this false and illegal return was by said clerk certified to the secretary of state as the true result of the votes cast in said county for Representative in Congress. That the returns of the votes cast in all the counties of the fourth Congressional district of said State, as certified to the secretary of state, including the false and illegal return from Monterey County, showed the following result:

For Romualdo Pacheco..
For Peter D. Wigginton.

Majority for Pacheco

Votes.

19, 104

19, 103 1

That by the illegal and fraudulent change made by the clerk of Monterey County, whereby two votes were taken from the number received by Mr. Wigginton, the result in said Congressional district was changed, and the sitting member was counted in by one majority, whereas the contestant should have been declared elected by the same majority.

2. That thirteen persons voted for Mr. Pacheco, in certain precincts and counties of the district, who were non-residents, and not entitled to vote under the laws of the State of California.

3. That three persons voted for Mr. Pacheco whose names were not on the great register, as required by the laws of that State.

4. That six persons voted for Mr. Pacheco whose ballots were so marked as to indicate who cast them, and that such ballots must be rejected under the laws of California.

5. That in two precincts there were more votes counted than there were names on the poll-list; that the judges in each of these failed to draw out the excess of votes and destroy them. That, by this failure on the part of the inspectors, two votes were counted for Mr. Pacheco that ought not to have been counted.

6. That there were such irregularities and illegal practices on the part of the inspectors of election and the voters of Saticoy precinct, in Ventura County, as to invalidate the whole vote of the precinct. In this precinct the vote stood

For Romualdo Pacheco..

For Peter D. Wigginton....

85

51

If the contestant should make good the foregoing grounds of contest, he would add to his own vote two votes in the county of Monterey, and subtract from Mr. Pacheco's vote fifty-eight votes; and the result would then be as follows:

For Mr. Wigginton.

For Mr. Pacheco

Majority for Mr. Wigginton....

19, 105 19, 046

59

A careful examination has been made of each of the grounds of contest above set forth, with the result following:

MONTEREY COUNTY.

In Monterey County, according to the returns first sent to the secretary of state, the vote was:

For Pacheco

For Wigginton.

1,208

986

But contestant claims that those returns should have shown that he received 988, which would have given him a majority of one in the district. Being constrained to differ with the contestant as to this, the following considerations are presented:

1st. By the laws of California it is provided that after the officers of the election shall have counted the ballots, of which tally-lists are to be kept, lists must be attached to the tally-lists, containing the names of the persons voted for, and the number of votes given for each candidate, the number being written at full length, must be signed by the members of the board, and attested by the clerks.

These tally-lists, with the list of persons voted for, with the number of votes received by each, together with the ballots, &c., are required to be sent to the clerk of the county at the county seat.

These returns are required to be canvassed by the board of supervisors of the county. This board of supervisors is not a board simply created for the purpose of canvassing the returns of an election, and which ceases to exist upon that duty being discharged; but it is an official body of a continuing character, required to keep a record of its proceedings, holding sessions day after day-on one day signing and attesting the proceedings of the day next preceding, &c. Its character is sufficiently shown in the opinion of Mr. Justice Rhodes, at the beginning of that opinion, on page 34, part first, of the record. As to this there can be no doubt, and it is an important fact to be noted.

The duties of this board touching the matter of elections are thus defined by the statute:

SEC. 4046. Subdivision 3. To establish, abolish, and change election-precincts, and to appoint inspectors and judges of elections, canvass all election-returns, declare the result, and issue certificates thereof.

SEC. 4030. Subdivision 1. The clerk of the board must record all the proceedings of the board.

SEC. 4029. The clerk of the county is ex-officio clerk of the board of supervisors. The records must be signed by the chairman and the clerk. The clerkmust be paid such compensation as is provided by law in full for all services as clerk of the board. This board having this jurisdiction, the statute further provides as to the manner of canvassing the returns in the following sections:

SEC. 1281. The canvass must be made in public, and by opening the returns and estimating the vote of such county or township for each person voted for, and for and against each proposition voted upon at such election, and declare the result thereof. SEC. 1282. The clerk of the board must, as soon as the result is declared, enter on the records of such board a statement of such result, which statement must show1. The whole number of votes cast in the county.

2. The names of the persons voted for and the proposition voted upon.

3. The office to fill which each person was voted for.

4. The number of votes given at each precinct to each of such persons, and for and against each of such propositions.

5. The number of votes given in the county to each of such persons, and for and against each of such propositions.

Here, then, we have an official board, having a jurisdiction defined by law, required to keep a record, which is to be signed by its chairman and the clerk.

The supreme court of California, in the litigation over this very case, said of this record thus made (see page 34 of the record in this case):

A record kept and authenticated in the manner provided by those two sections (4030, 4029) is the evidence of the proceedings of the board, and is the only evidence thereof in cases where the proceedings are required to be entered of record.

Then the statute further provides that this record shall be certified to the secretary of state, as will appear by the following sections:

SEC. 1344. The clerk of each county, as soon as the statement of the vote of his county at such election is made out and entered on the records of the board of super

visors, must make a certified abstract of so much thereof as relates to the vote given for persons for Representative to Congress.

SEC. 1345. The clerk must seal up such abstract, indorse it "Congressional Election Returns," and, without delay, transmit it by mail to the secretary of state.

And from the certified copies or abstracts of these records from the various counties the secretary of state makes his certificate to the governor, showing the person having the highest number of votes in the district.

From this it will be seen that the several counties have records of the votes cast in them respectively, and that in the office of the secretary of state is a record of the votes cast in all the counties. From the record thus made and kept in the office of the secretary of state the certificate was sent to the governor, showing that contestee had a majority of the votes cast in the district, and on which the governor issued to him his certificate of election.

Now, the claim of the contestant in this case is that, as to Monterey County, he should be allowed 988 votes; whereas the record of that county, as transmitted by the clerk to the secretary of state, only shows him to have received 986.

It is not disputed that the record thus transmitted shows that the contestant received only 986. He seeks to impeach that record. It certainly imports verity. We do not contend that the committee or the House cannot go behind it and ascertain the real facts; but we do contend that it must be presumed to be correct until the contrary is proven; and it is incumbent on the contestant to prove that it is not correct.

The only proof he has offered consists of ex-parte affidavits, which cannot be used or considered for such a purpose. The affidavits of Blankenship and Gordon may therefore be dismissed from consideration.

But it appears in the record that the contestee instituted a proceeding in mandamus against the secretary of state to compel him to certify the vote according to the records of his office, created as above shown to be required by law, and on his petition in that case the contestee set forth an affidavit made by the clerk of Monterey County touching the facts as to the canvassing the returns of that county, and it is claimed by the contestant that the contestee having set forth that affidavit in his petition, which was sworn to by him, it may be considered as evidence against contestee to impeach this record. Without conceding this to be sound as a legal proposition, and for the purpose of the argument conceding that this affidavit may be used as evidence, it certainly will not be denied that the whole of it is to be taken; and that being the case, it completely disposes of this controversy as to Monterey County. As this affidavit is made to play so important a part in this case, it is proper to quote it in full. It is as follows:

I, John Markley, county clerk of Monterey County, and ex officio clerk of the board of supervisors of said county, do hereby certify as follows, to wit: That on the 13th day of November, 1876, the board of supervisors of said county met at their usual place of meeting, in the office of the county clerk of said county, to canvass the vote polled in said county on the 7th day of November, A. D. 1876; that there were present at said meeting Supervisors Edwin St. John, S. B. Gordon, and A. J. Blankenship. The board organized by electing Mr. Blankenship chairman pro tem. of said meeting. The board proceeded to canvass the vote, Mr. Blankenship opening the large envelopes containing a copy of the great register, poll-list, and tally-list, and handing to Mr. Gordon the tally-list.

Mr. Gordon read out the vote received by each person, and as said vote was read out by Mr. Gordon the clerk or his deputy took down the same with a lead-pencil in a tabulated statement prepared for that purpose. At the same time John B. Scott, county auditor, and L. P. Carter kept an account of so much of said vote as related to members of Congress, as the same was read out by Mr. Gordon.