Contested Election CaseOF CORNELIUS J. JONESVS. T. C. CATCHINGSIN House of Representatives of 56th CongressOF THE UNITED STATES.

BRIEF OF CONTESTANT.Contestant informs the committee that this contest is based upon two leading propositions; one of law, and the other fact. The question of law must be disposed of before the facts can consistently enter into the consideration of this cause. It will be seen from the notice of contest that the charge is made that all the votes cast at the regular election at the several polls last November (1898), throughout the several countries of the Third Congressional district of Mississippi, were illegal ballots, printed, circulated, voted by the voters, and counted by the authorized officials, contrary to the express terms of the laws of the State of Mississippi, made and provided in that behalf. The committee will necessarily ascertain first if this is a true charge. In determining this fact the committee will, of course, adhere to the uniform rule laid down and accepted by all tribunals, as well as the pronounced doctrine of the House of Representatives, that the States have the sovereign right to adopt any character of ballots desired by the legislature of such State, to be used at the elections held therein for officers thereof; and in the light of the further doctrine strictly observed by the House of Representatives, that the character of ballots authorized by the State laws shall be used at elections for members of the House of Representatives. This doctrine is adhered to and universally approved 00032by all authorities, beyond any controversy whatever. Admitting this to be the accepted doctrine, the fact as to whether the State laws were complied with in the preparation of the ballots by the State, district and county officers, at the last election held for member of the House of Representatives, is the primary issue. To establish this fact, contestant was guided by the principle that questions of this character must be strictly proved by the face of the law itself, and not by statements as to the terms thereof. Guided by these rules in the introduction of his proof, contestant necessarily confined himself to the strictest brevity, consistent with the intelligent development of his case. Before entering into the discussion of the existing laws regulating the character of ballots to be used in this State at all elections for officers, contestant must briefly make reference to the laws which were in operation prior to the present. That this may be intelligently done, contestant will quote the laws of the State governing the subject as appear in the Code of Mississippi, adopted in 1880, under the operation of the constitution of 1869, which were displaced by the present constitution and laws.

Sec. 136, Code of 1880. "All elections by the people of this State shall be ballot. The poll shall be opened at 9 o'clock in the morning, and kept open until 6 o'clock in the evening, and no longer; and every person entitled to vote shall deliver to one of the inspectors, in the presence of the others, a ticket or scroll of paper, on which shall be written or printed the names of the persons for whom he intends to vote, which ticket shall be put into the ballot-box, and at the same time the clerks shall take down, on separate lists, the name of every person voting; and when the election shall be closed, the inspectors shall publicly open the box, and number the ballots, at the same time reading aloud the names of the persons voted for, which shall be taken down by said clerks, in the presence of the inspectors, and if there should be two or more tickets rolled up together, or if any ticket shall contain the names of more persons for any office than such elector had a right to vote for, such ballots shall not be counted."

The object for citing this section of the old law is to call the committee's attention to the fact, under this law the ballots 00043tendered the inspectors of election at the respective polls should be received by such election officers, and placed into the ballot-box; in other words, each elector was to furnish his own ballot, and the election officers were required under the law to receive, deposit, and count the same. This being the law, it was the custom that each candidate for office would, on election day, have a number of ballots containing his name for whatever office, and such other names or matter which might be addressed to the suffrage of the precinct. It will be borne in mind that there was a statute under this law, regulating the character of ballots, which provision is as follows: Section 137. "All ballots shall be written or printed with black ink, with a space of not less than one-fifth of an inch between each name, on plain, white paper, not more than two and one-half, nor less than two and one-fourth inches wide, without any device or mark by which one ticket may be known or distinguished from another, except the words at the head of the tickets; but this shall not prohibit erasure, correction, or insertion of any name by pencil mark or ink upon the face of the ballot; and a ticket different from that herein prescribed shall not be received or counted." It is seen that the statutes under the former code described the character of ballot, but left it to the candidates or electors to furnish the ballots; and if in any case one candidate prepared a ballot contrary to the terms of the statute regulating the character of ballots, the opposing candidate could not, for that reason alone, question the validity of the election of a candidate who received a majority of the votes cast; but as he was required to furnish his ballots or see that his friends voted ballots prepared according to law, the intelligent method would be for this defeated candidate to have provided ballots as prescribed by law, to be circulated among his friends of the electors, irrespective of the fact that his opponent had prepared and circulated among his friends of the electors, ballots prepared contrary to the terms of the statute; then, if when the count was over it appeared that the ballots prepared contrary to law were more in number than those prepared according to law, the candidate receiving the majority of the legally prepared ballots would be by the election officers declared duly elected; because each ballot not prepared 00054according to the terms of the statute was, in a legal sense, no ballot; and if one candidate received all the properly prepared ballots it would be equivalent to there being but one candidate voted for regardless of the small number of such ballots deposited; in other words, if it were under the constitution of 1869, and Code of 1880, which the last Congressional election in this district were held (in 1898), contestee would have had his ballots prepared for circulation and to be voted by his friends, and likewise the contestant. Then, if the 2,486 ballots which were counted for him had been five inches wide, or the space between the names had been one inch instead of one-fifth of an inch, this fact would avail contestant nothing, unless it appeared that the votes returned by the officers for him had been in every respect strictly in accordance with the law regulating the character of ballots. But under the constitution of 1890 and laws thereunder, provisions for a specific character of ballots are made mandatory, as well as the further provision designating what authority shall provide, as well as prepare, the ballots to be used at the elections in the State.

As to the character of ballots to be used in Mississippi, whenever a State constitutional amendment is to be submitted to the voters, attention is called to Sec. 3654 of Code of 1892:

"FURTHER AS TO FORM OF BALLOTS, CONSTITUTIONAL AMENDMENTS, ETC.

"Whenever the question of a constitutional amendment, or other question or matter admitting of an affirmative or negative vote, is submitted to a vote of the electors, the amendment, question, or matter shall be printed on the official ballots, together with the names of the candidates, if any, and also the words "yea" and "nay" to be so arranged by the proper officer, that the voter can intelligently vote his preference," etc.

The statute prescribing what State officers shall be charged with the duty of designating what shall be the official ballots to be voted at any election, will be found in the following section 3656, Code of 1892:

"ARRANGEMENT OF NAMES ON BALLOTS; SAMPLE BALLOTS.

"The arrangement of the names of candidates, and the order in which the title of the various offices shall be printed, and the size, print, and quality of paper of the official ballot, is left to the discretion of the officer charged with printing the official ballot; but the arrangement need not be uniform. It is the duty of the secretary of State, with the approval of the governor, to furnish the designated commissioner of each county a sample of the official ballot, the general form of which shall be followed as nearly as practicable."

Section 3658: "All official ballots intended for use at any voting place shall be fastened together in convenient numbers, and in some secure manner, but in such way that they may be detached for use. A record of the official ballots printed and furnished to each voter shall be kept, and all the ballots shall be accounted for by the officer charged with the printing of the ballots, and by those designated to distribute them at the polls."

The purpose of this section of the code is that absolute secrecy as to the form, size, and general arrangement touching the ballots shall be observed; thus keeping the public wholly ignorant of any matter touching the ballot. Even the printer who prints the ballots is sworn to keep secret all information concerning the ballots, as prescribed in Sec. 3651, Code of 1892:

"PRINTER SWORN TO SECRECY.

"It shall be the duty of one of the election commissioners designated for that purpose, in his commission by the authority appointing the commissioners (of each county) to have printed all necessary ballots for use in elections except ballots in municipal elections, which shall be printed as herein provided by the authorities of the respective municipalities; and the election commissioner shall cause the official ballot to be printed by a printer sworn to keep the ballots secret under penalty prescribed by law."

This law is designed to keep the voters and candidates wholly ignorant of the ballots to be used until on the day of election. 00076For when we take into consideration the terms of Sec. 3660 of Code of 1892, we find the rule to be as follows:

"MANAGER OF ELECTION DESIGNATED TO DISTRIBUTE BALLOTS.

"The commissioner of election designated to have the official ballots printed, and distributed shall, in appointing the managers of election, designate one of the managers at each voting place to receive and distribute the official ballots, and shall deliver to him the proper number of ballots, and cards of instructions not less than one day before election, and the manager receiving the ballots from the commissioner, shall distribute the same to the electors of his district, in the manner herein provided."

The following section prescribes just when the electors are apprised of the ballots they are to vote at any election, to wit., 3663, Code 1892:

"BALLOTS; HOW DISTRIBUTED AT THE POLLS.

"The manager of election having the official ballots, shall remain at the polls, at a place convenient to the voting compartments, tables, or shelves, for the distribution of the ballots; and when requested by an elector entitled to vote, shall hand him an official ballot."

It will be borne in mind that even an elector is prohibited under the law from imparting any information to others, as to the kind of ballot he voted. This law is for the purpose of preventing the slightest information concerning the ballots from escaping; considering the further fact that each ballot is to be marked with the words printed on the back thereof "official ballot," any person who might duplicate this ballot, with the words "official ballot" printed on the back, would be subject to the most vigorous criminal prosecution.

The committee will observe that the laws of Mississippi do leave some matters relative to the question of official ballots to the discretion of the administrative officers. Contestant admits that those matters which are left to the discretion of the election officers are not subject to criticism, because the discretion was 00087used in a given direction, instead of one different. But by a careful review of the laws it will be seen that the only matters left to the discretion of the election officers in the preparation of, and printing the official ballots, relate to the "size, print, and quality of paper." This fact is found by reference to Sec. 3656 of Code 1892. As there can be no question as to the discretion left the administrative officers in performance of their duty in relation to the official ballots under the existing laws of the State, it must be admitted that the terms of the law regulating the character of ballots to be used at elections where amendments to the State constitution are submitted at the same election as appear in Section 3654 of the Code 1892, are mandatory in every respect, except the "size" of the ballots, the "print," whether of small type, large type, italics, or otherwise, and the "quality of paper," whether one color or another. But the fact that the proposed amendment to the constitution shall be printed on the official ballots, together with the names of the candidates, if any, is the specially declared will of the legislature, which places the command beyond question.

Just at this point contestant calls attention to the third count in his notice of contest, which reads as follows: "I aver that the State laws provide that whenever an amendment to the State constitution is to be proposed at any election, the proposed amendment should be placed upon the official ballot with the names of the candidates for offices to be voted for, if any there be; and that the ballots should be so prepared, that the electors can intelligently vote on both the amendment or other matter requiring an affirmative or negative expression in determining the voter's choice in the matter, and for such candidates as may be voted for; and the fact that the election officers of the several counties of district, with full notice of this statute of the State, violated the same, by depositing and by ultimately counting ballots which were prepared contrary to the express terms of the State laws, being that of separate ballots for the constitutional amendment which was proposed at said election, and also a separate ballot with the names of the candidates for Congress, being two separate ballots which were voted by the electors at the various polls in the several counties, and so a State statute 00098positively provides that any ballots prepared in any other way than that provided by law shall not be 'deposited, nor counted, I shall insist that, as it is this character of ballots counted for you by the election officers aforesaid, at the final hearing of this cause, said votes being the basis of the declaration of your election, they shall not be counted; and those of my supporters, who were by enforcement of this illegal method of voting denied the right to legally cast their votes for me, and made declarations to that effect, which declarations are in writing and signed by voters themselves, that such votes shall be counted for me, which will materially change the result of said election as given by the void election returns."

The foundation of contestant's cause is based upon this vital question. There is not the slightest denial of the fact that the election officers prepared two separate ballots to be voted by each elector who voted at the last Congressional election in this district. Contestant will further inform the committee concerning this constitutional amendment. At the last regular session of the legislature of Mississippi, 1898, the following measure was passed, with provision that the same should be voted upon by the electors at the then approaching election, November, 1898: "Amend Section 232 of the constitution, which reads as follows: 'Sec. 232. The commissioners of said levee districts shall have supervision of erection, repair, and maintenance of the levees in their respective districts, so that it will read as follows: Sec. 232. The commissioners of said levee districts shall have supervision of the erection, repair, and maintenance of the levees in their respective districts, and shall have power to cede all their rights of way and levees, and the maintenance, management and control thereof to the Government of the United States.'"

Be it remembered, that the legislature did not change the law regulating the character of ballots to be used, whereupon this proposed amendment was to be printed and voted upon by the electors; merely proposed the amendment to the State constitution, to be placed upon such official ballots as regulated by existing laws. It was the duty of the secretary of state of the State of Mississippi, with the approval of the governor of the 00109State, to have prepared a sample ballot for the election commission of each county, so that the names of contestee and contestant should have appeared on the same ballot together with the proposed amendment to the State constitution. This was his positive duty under express command of the statute of the State under Section 3656 of the Code of 1892, which is unrepealed. If the election officers have violated this law, it is a violation which must be visited with the condemnation of this committee. It will be seen what position contestee assumes in his answer, page 5 of Rec., in the seventh denial, which is as follows: "I deny that the fact that the said election officers, instead of printing said amendment on said official ballot so prepared and submitted to the voters as aforesaid, for the purpose of enabling them to express their choice for Representative from said district, also prepared an additional ballot containing on it only the said proposed amendment to the constitution, had the effect of invalidating or making illegal the said official ballots, containing my name and yours as candidates to be voted for the said office of Representative."

Contestee positively denies in his answer as quoted, that the violation of the mandatory terms of the State statute respecting the preparation of official ballots, by the officers of the law, disturbs the validity of the ballots, and insists that such ballots should have been counted. This proposition can be best answered by the express statute of the State, which will put to rest all question as to whether illegally prepared ballots should be counted or not. Sec. 3649 of Code 1892:

"CERTAIN BALLOTS NOT TO BE COUNTED.

"A ballot not provided in accordance with law shall not be deposited nor counted." Sec. 3654 prescribes the law in accordance with which ballots should be prepared when a constitutional amendment is proposed; and when such ballots prove to have been prepared contrary to this law, the legislature has declared what should be the disposition made of such ballots. Now, contestant submits as a plain proposition, that if the legislature has declared that ballots prepared and provided not in accordance with law shall not be deposited nor counted, it is the controlling 001110doctrine. The legislature declared such irregular ballots to be illegal; contestee in his answer denies the fact that such ballots are illegal; then it is for this committee to determine whether the legislature shall be obeyed, or whether contestee's declaration shall control.

Contestant is mindful of the fact, that if the State law relating to the preparation of official ballots (as in case at bar) were merely directory, the violation of its terms would not of itself vitiate the validity of the ballots voted, and the count would not be disturbed. Contestant will even go further and admit that if the terms of the State law were mandatory, and yet silent as to the fate of the ballots which were prepared and voted contrary to the terms of the law, the committee would have precedent for upholding the returns. But there remains not a single case in the history of our jurisprudence where a ballot has ever been declared voted and counted, when provided contrary to the State laws, where the legislature has declared that such ballots "shall not be deposited nor counted." The authorities hold that "statutory provisions with reference to voting are to be considered directory only, unless they are expressly declared mandatory." 4th Gen. Digest, 1515, 31 M., 558, 27 M., 628.

"The mere failure of an election officer to perform some prescribed duty, in the absence of fraud of imposition practiced upon the voters, will not deprive him of his vote unless the language of the statute allows no other alternative." Hope vs. Flentge, 140, Mo., 41 S. W., 1002; Vol. V, Gen. Dig., 1915.

"Ballots which are substantially in compliance with law, and clearly indicate the intent and choice of the voter, must be counted, although it does not strictly conform to the statute, unless the statute expressly forbids it." 19 Mont., 249; 47 Pac. 999; Vol. I, Gen. Dig., 1516.

"When it is shown that illegal votes have been cast for a candidate, they should be deducted from his vote; and if by so doing the general result is changed, the opposite candidate should be declared elected." Am. & Eng. Ency., Vol. VI, 352.

In speaking of the statute of the State as was in force under 001211the former code, the supreme court of Mississippi, after quoting the statute in question, in its opinion, said: "The effect of this provision is to condemn as illegal, and not to be counted, any ballot which has on its face or back any device or mark other than the names of persons to be voted for, and the words at the head of the ticket by which one ticket may be distinguished from another; and although such device or mark may appear to be mere printer's dashes or ornamentations, they are violative of the statute and render the ballots bearing them illegal." Oglesby vs. Sigman, 58 Miss., 502. This opinion of the State supreme court clearly shows the strictness to which this rule is required to be observed. The court said, that though the device or marks appear to be mere printer's mark or ornamentation, the fact remains that the statute is violated and invalidates the ballots. Yet in the case at bar the violation is much more open and deliberate. In this contest the officers wilfully directed, printed, received, and counted ballots, known to be contrary to the statute regulating the same. In this case the law provides that there should be but one ballot.

It will doubtless be argued by contestee that there is no charge of fraud as to the motive in the officers in violating the statute. This can be answered by two propositions: First, if the laws are wilfully violated by an officer charged with the proper administration thereof, the usual presumption of fairness yields to the presumption that fraud impelled the violative acts; then it devolves upon the party benefited by virtue of the violation in question to establish the regularity thereof. But in this case the presumption of fraudulent design is so overwhelmingly convincing that the most conservative authorities fall short of bolstering up the pretense of intended fairness; second, it makes no difference if we we were ever so much inclined to enlarge the rule prescribed for provision of official ballots, the legislature has established the law, in the nature of a most positive injunction, which controls in the courts, and has ever been upheld by the House of Representatives, to wit: "A ballot not provided in accordance with law shall not be deposited nor counted."

"Revised Code Miss., 1880, Sec 137, providing that all ballots 001312shall have a space of not less than one-fifth of an inch between each name, * * * and at a ticket different from that herein prescribed, shall not be counted, is mandatory, and must be strictly complied with." Keller vs. Touline, Miss., Sup. Crt., 7 So., 508.

On the 10th of January, 1899, the secretary of state caused to be published a statement as to the part he played in the matter of providing the official ballots preparatory to holding the last Congressional election (page 28 of Rec.).

This statement shows, among other things, that the total vote cast for Representative in this district was 2,486. This includes the entire vote for Representative. It is admitted by the officers that these were ballots containing the names of candidates for Congress, and another proposing the amendment to the constitution, both of which were voted together by the respective voters. This fact is admitted by the secretary of state, and every other officer. Then, as the statute declares that a ballot not provided in accordance with law shall not be deposited in the ballot-box, nor counted by the officers, however favorably inclined toward contestee the committee might be, its duty is imperative, and the 2,486 illegal votes cast throughout the district at last election must be thrown out; and as contestee claims his seat by virtue of the fact that he received 2,068 of the said illegal ballots, under the express mandate of the Mississippi legislature, these votes must be declared illegal, and contestee be declared not elected to a seat in the House of Representatives of the 56th Congress.

There is one question which suggests itself to the mind, and that is, what motive could have moved the chief State election officers to have violated the mandatory terms of the State law. We must fix some motive for the violation, and then matters will be somewhat cleared up. On page 28 of Rec., will be found a statement of the secretary of state. This is truly an untenable as well as an unreasonable explanation. In order, however, that the explanation may be better understood by the committee, contestant will produce the whole matter. On the 5th day of January, 1899, this influential journal, the Vicksburg Commercial Herald, published quite a spicy editorial upon the question 001413of this contest, which can be best understood by the following, as appears, page 27 of Rec.:

"A DISAGREEABLE DISCLOSURE.

"The contest of the irrepressible Cornelius J. Jones has not been given a thought by any one of the constituents of Gen. Catchings. It has been generally known that at some precincts he ran an election side-show; secured a certain small number of certified statements from negroes that they had been barred from voting through the operation of the suffrage provisions of the constitution of 1890. As this is a question on which the United States Supreme Court has ruled, the tilt of Jones against that tribunal was regarded as having no more motive than contest fees.

"It seems, however, that in drawing up his notice of contest, Jones discovered and has disclosed a grave error in the manner of the submission of the levee amendment to the constitution. Through a process of reasoning, which is all his own, it is contended in the notice that this error vitiates the regular election for Congressman, and validates the performance. How this conclusion is reached is too absurd for consideration; it is not worth while to state. This is not so, we fear, as to the constitutional amendment; that seems to have been fatally marred; but the following are the facts from which conclusions may be drawn: As voters will recall, the levee amendment to the constitution was submitted on a ballot separate from that containing the names of the candidates voted for.

"While this is so, section 3654 of the Code provides as follows: 'Whenever the question of a constitutional amendment, or other question admitting of an affirmative, or negative vote, is submitted to a vote of the electors, the amendment, question, or matter shall be printed on the official ballot, together with the names of the candidates, if any, and also the words 'yea' or 'nay' to be so arranged that the voter can intelligently vote his preference by making a cross mark (X) opposite the words indicating his preference.'

"Why this provision was not complied with in the preparation of the sample ballot the Herald is uninformed. It may be that 001514there was some satisfactory reason, for this, which will be forth coming. Sec. 3656 provides that' it is the duty of the secretary of state, with the approval of the governor, to furnish the designated commissioner of each county a sample of the ballot.' As the governor is a lawyer, and presumably thoroughly conversant with the Code, we hope we can give a sufficient explanation of the question involved to save the amendment. It will be remarkable, indeed, and at least if no interested was aware or mindful of this section, that a negro political pot hunter should have given a lesson in the Code to those with whom knowledge of its contents is supposed to be a guide to official duty."

This labored editorial, while it seeks to belittle the claim of contestant, yet, in the same breath admits the fact that the amendment to the constitution which was voted upon a separate ballot, is for that reason, "fatally marred." If the constitutional amendment is "fatally marred," because of the fact that it was voted for upon an illegal ballot, and this ballot being declared illegal because it was submitted on the ballot with the names of the candidates for Representative, it is palpably absurd to claim that the ballot containing the names of the candidates is not also "fatally marred." In other words, the Herald, the pet organ of contestee, published at his home, a admits that the secretary of state erred in not providing a sample ballot, as prescribed by section 3654 of existing Code, and because of this error one part of the ballot is illegal and the other valid. But it is quite refreshing, indeed, to have the slightest possible admission from the Herald in this matter. On page 28 of Record will be seen the statement from secretary of state, in response to the editorial of the Herald, as follows:

"Editor Vicksburg Herald: Your editorial, 'A Disagreeable Disclosure,' in Herald of 5th, calls for the most agreeable explanation I can furnish. The constitutional amendment relating to the levees having been duly published three months, on the 9th of September I sent blank forms to the election commissioners for making returns calling attention to the election for members of Congress and the constitutional amendment.

"On the 27th of September the forms of official ballots were printed. For members of Congress, I copied the form used in 001615the election of 1896 (remember there was no amendment submitted in 1996, nor did Section 3654 apply to that election), making the necessary change as to date. I then prepared a special ballot relating to the levee amendment, and sent them in that shape to the election commissioners for their guidance. My time was then almost wholly occupied in yellow fever relief work, and I did not make the careful examination of the election law that I should have done.

"I knew that the official ballot for Congress was correct [why], because it was the form approved and printed in 1896.

"And the ballot for the levee amendment was prepared in the same general style.

"On the 25th of October I sent another circular to the election commissioners, calling their special attention to the levee amendment.

"Being a separate ballot [of course contrary to Sec. 3654], and relating specially to the delta section [embracing the third district, the black belt], I feared it might be overlooked in some countries.

"The substance of this circular was published in the Herald, and the New Orleans and Memphis papers.

"Section 273 of the constitution provides that when an amendment is submitted, 'if it shall appear that a majority of the qualified electors voting, shall have voted for the proposed change, alteration, or amendment, then it shall be inserted by the next succeeding legislature as a part of the constitution.' [That part of the organic law is all right, for it does not attempt to prescribe any regulation as to the ballot, but wisely left that to the legislature, which enacted sections 3654-3656, as the rule.]

"The official returns of the election on November 8th show the total vote cast to have been, for members of Congress 27,-486; for the levee amendment, 19,837; so that a majority of those voting voted for the amendment, and should the 'next succeeding legislature' order its insertion in the constitution, it will be a part thereof; provided, the failure to observe sections 3654-3656 of the Code as to the printing of the ballots may not effect its validity. [That is the very proviso which is under criticism].

"In the third [Mr. Catchings'] district, there were 2,486 votes 001716cast on the Congressional ticket, and 2,212 on the amendment ticket.

"There were 2,146 votes for the amendment, and only 66 against.

"I regret exceedingly the inadvertence chargeable to me, but shall hope that the next legislature will decide that the will of the people as to the amendment has been ascertained by the vote cast thereon, and that it will be inserted as a part of the constitution.

"One thing certain: The amendment relating to the judiciary, to be voted on in November next, will be on the official ballot, together with the names of the candidates.

"Very truly,"J. L. POWERS,"Secretary of State."

The last sentence of this statement is the best testimony for convicting the secretary of state. If he recognizes, as he certainly does, that the amendment to the constitution, making the judges elective, must be placed on the official ballot, together with the names of the candidates, in order to make the votes therefor valid, why should it be pretended by him and contestee, that the failure to place the amendment on the official ballots, together with the names of the candidates, does not invalidate the ballots. This chief state election officer frankly admits that he failed to conform to the law; here are his precise words: "I did not make the careful examination of the election law that I should have done."

This officer pleads extenuation by intimating that the legislature might excuse his oversight and consider the amendment adopted, and he bases this novel expectation upon the following remark in his letter just quoted: "I regret exceedingly the inadvertence chargeable to me, but shall hope that the next legislature will decide," etc.

Contestant will ask the committee to please refer to interrogatories 3 and 4, on page 63 of Record, as propounded to this same secretary of state as witness for contestee, and then turn to his answers 3 and 4, on page 64 of Record. It will be seen that the 3d interrogatory contestee asked Mr. Powers, secretary of state, 001817was what section of the Code of 1892 imposed upon him the duty of providing the sample official ballot. Contestee did not ask witness if he complied with the section, but asks him what is the section which places the duty upon him. Witness, in his 3d answer, on page 64, says Sec. 3656 is the law imposing upon him the duty. The 4th interrogatory, on page 63, is indeed interesting, because it asks this officer to state why he did not comply with the law in the preparation of the official ballots. The answer is the 4th answer, on page 64, wherein the following, under oath, appears, to wit:

"I overlooked the statutory requirements, it not have been indexed," etc. The only provision the State law has made, in case an officer overlooks the terms of the statute relating to preparation of ballots, is found in Section 3649, which provides that, " A ballot not provided in a accordance with law shall not be deposited (in the ballot-box) or counted." This law is but the reenactment of the statute which was in force under the former Code, 1880, and constitution of 1869. This has been the universally accepted rule in this State since or before 1880. The legislature gave notice to the world, just what character of official ballots would be legal; the legislature expects every officer to perform the duties prescribed. The law is plain, and there remains no excuse for its violation, and the 2,486 votes cast for Representative, and the 2,212 votes cast for the levee amendment on the 8th of last November, 1898, in this district, must, in compliance with the express command of the sovereign people of Mississippi, be declared illegal.

Contestant does not desire to be understood as insinuating upon the integrity of a single election officer, but owing to the explanation made by all the witnesses of contestee touching the reason for not complying with the law in the preparation of ballots, it might be well to state that the Democratic leaders and party managers throughout this district were very much concerned about the result of the last election. The Memphis Commercial-Appeal, the New Orleans Times-Democrat, Vicksburg Herald, Bolivar Country Democrat, Mayersville Spectator, Greenville Times, and a number of leading papers, published strong and appealing editorials, calling on the Democrats of the several 001918counties of this district to rally patriotically to the party rescue, lest the Republicans would elect their candidate to Congress. All these are widely circulated, influential Democratic newspapers.

The following editorial from the Bolivar Country Democrat, page 26 of Record, published September, 1898:

"The Democrats of the county and district must not forget the importance of turning out en masse at the Congressional election now near at hand. It takes place on Tuesday, the 8th day of November, and a full vote is not only desirable, but quite important. The Republicans have a candidate in the field, and although there is little thought of it, he might be elected if any considerable number of Democratic voters should stay away from the polls.

"We are sure our people will respond to an important party demand, and that not only those who voted for Gen. Catchings at the primary election, but all true Democrats can be relied on to enforce the party will, by the election of its nominee."

This is a paper published in Bolivar county, in the third district, one of the largest and most populous counties in the State. This paper is managed and edited by Mr. Charles Scott, one of the leading and most wealthy citizens of the State, one of the chief attorneys for the Great Yazoo and Mississippi Valley Railroad. If the Republicans of the district were despondent, making no effort to elect contestant, and the Democratic party felt certain that there were no negroes prepared to vote, by virtue of non-payment of taxes and failure in registration, why should the Democratic leaders be called upon to sound the note of warning to the party, calling upon them to turn out "en masse." Why should there be the slightest apprehension on part of contestee's leading friends throughout the district that "although it is little though of [speaking of Republican candidate] he might be elected." We call attention to an editorial published in the Mayersville Spectator, in September, 1898, page 26 of Record:"VOTERS, LISTEN."On the 8th of next November we will be called upon to elect a member of Congress to represent this district.

002019

"It is of vital importance to go to the polls.

"It is true that the Republicans are largely in minority in this district, but it is too true that after nominations are made our people are indifferent and do not turn out and vote. But it is our duty this time to come to the front and vote for General Catchings, who is the party nominee.

"We can not afford to let a negro be elected in this district, and if we do not turn out and vote, there is danger of such a thing.

"They are at work, and will poll their whole strength; and with a light vote polled by the Democrats, they can give us trouble.

"We now ask as a special favor for Issaquena [county] to do its duty. We do so because it is known as an anti-Catchings county for the nomination, was this time, and will again, but let us prove our loyalty to the party. Let us do our duty to the grand old party that delivered us from the clutches of negro rule years ago. Let us prove to the world that they may slander our county, but they will never weaken our Democracy.

"We know our people are as loyal as any people on earth, believe in free silver and Democratic principles. Let us go to the polls by all means and vote.

"Let everybody turn out and vote for Thomas C. Catchings for the last time."

It will be noted that contestee had a number of his witnesses to state that the Democrats did not feel the slightest uneasiness over the result of the election then approaching. It is policy for him to edge in this sort of testimony to bolster up his pretense of a claim. This statement is made by his witnesses, and will be elaborately argued in his brief; but the object thereof will be to play upon public sentiment, and likewise the sentiment of such members of this committee as may not take the pains to read carefully contestant's brief, and likewise Record. The Record shows that the Democratic leaders of the district did appeal long and earnestly through their leading newspapers, arousing the party to active duty; hence it is useless for contestee, at this late day, to pretend to the country that the party was not uneasy. Whether there was any uneasiness or not, the leading journals of the district and of this section of the country all 002120joined in the cry for party unification, the denials of contestee at this date to the contrary notwithstanding.

There was considerable apprehension entertained lest the Republicans would win in the contest at the polls; it was at or about this time, the secretary of state found it too much trouble to look up Section 3654 of the Code, and concluded to have two ballots at the polls. Contestant has no way of knowing the private motive which moved the officers to overstep the law in the last election, and as the statute prescribes what the remedy shall be when the law is not complied with, it is sufficient if Congress obeys the mandate of the State law on this subject.

It will be seen all through this record, that contestee asked every witness if the fact that there were two ballots to be voted at the polls at last election caused any confusion. This is no excuse whatever. Suppose it did not cause any confusion, the State law has made the plain declaration that ballots not prepared in accordance with law shall not be counted. The law does not say that such ballots may not be counted, but in the most mandatory term it is declared that such ballots shall not be counted; and the lame pretension, that if there were no confusion caused by the use of the illegal ballot it should be permitted to stand, is in open violation of the solemn decree of the legislature.

It will be seen that contestee had a number of his witnesses to file a lot of lists of names of persons, either those who voted, or those who were registered in the several counties. There can be no purpose whatever for these lists being filed, except to fill the Record up. Let the committee turn to the Record, and from the beginning of his testimony certain men were asked to file a list of names, purporting to be first one thing, and then another. See Record, pages 36, 46, 47, 48, 56, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 74, 75. There is no conceivable regularity of purpose in this mass of irrelevant, incompetent matter. The chief question in this case, is whether there were two ballots as charged in the notice of contest. The next is whether these ballots were counted, and whether such count by the officers is the base upon which contestee's election return rests. The only exhibits which in the remotest bear upon the case are those exhibits of Secretary 002221of State Powers, on pages 64, 65, being the copy of the sample ballots used. The vital questions involved in this case are questions of law, and necessarily the Record is brief; and the fact that contestee seeks to encumber the Record with a mass of irrelevant exhibits, and the introduction of incompetent, irrelevant, misleading interrogatories and cross-interrogatories, will by no means obscure the vital issues. Contestant shall briefly state why he should be declared entitled to the seat.

It will be borne in mind that at the late election for Representative in this district, the two ballots as mentioned before, were prepared contrary to the State law. Under the present law the voters were compelled to vote the illegal ballots or none at all. It was not positively known that there would be this character of ballots at the polls, until just a day before the election. The Republican committee had but a few hours to decide what to do, but a hurried meeting was called, and it was decided that the proposal of two ballots was in violation to the State law, and intended to in some way defeat the will of the party at the polls. It was thereupon decided that all persons who were eligible to vote and desired to vote for contestant, should meet as near the polls as consistent to their personal and legal safety, and there sign declarations of their intentions and deposit the declarations in a box prepared for the purpose, and then give their names to certain reliable citizens who were placed in charge of the box; and their names would be taken down on a separate list. Under the law, the election managers at the polls were prohibited from receiving any ballots, except those issued by the manager designated by the county commission, to distribute the same to the voters on election day. It will be remembered that under the constitution of 1869, and Code of 1880, the voters could prepare their own ballots, provided they were prepared according to the statutory regulations; and the managers were required to receive the same; therefore it will be seen from the copy of the voters' declaration on page 10 of Rec., the following: "I am a citizen of the United States, and of Mississippi; duly qualified under the State constitution of 1869, offered this day to vote and desired to vote for C.J. Jones for Representative for the third Congressional district of the State, in the 56th Congress of the 002322United States, but was prohibited by enforcement of the constitution of the State, adopted in 1890."Signed, this, the 8th day of November, 1898."L.H. NICKERSON."

This declaration is quoted herein for the purpose of meeting a certain objection urged thereto by contestee. The party signing this declaration asserts that he is a citizen of the United States, and qualified to vote under the constitution of 1869; thus assuming to be entitled to vote under the Code of 1880, adopted under constitution of 1869.

Contestee contends that this declaration seeks to put the present constitution of the State in issue. In brief, contestant informs the committee that it was no attempt to put in issue the validity of the constitution of 1890, nor the statute enacted thereunder. But as under the former constitution and laws the voters could have avoided the effect of voting an illegal ballot by preparing one in accordance with law and the fact that the officers enforced the present law preventing them from preparing their ballots according to Sec. 137 of Code of 1880, yet at the same time and place insisted that if they voted at all they should vote the ballots prepared by the election officers, the enforcement of the terms of the constitution and laws of 1890 would have forced the voter to vote an illegal ballot; and as under the enforcement of the present laws on that day a legally prepared ballot could not be voted, therefore the voters declared that they offer to vote, and desired to have voted for contestant; but as the constitution and laws of 1890 were enforced by the officers of the law they were denied the right to have voted a legal ballot for C.J. Jones, for whom it was desired to have voted. There was nothing else to be done by the friends of contestant, who desired to comply with the law. They were prohibited from complying with the law of the Code of 1892, because there was no legal ballot tendered them or provided for distribution at the polls on this day; and they were prohibited, under the Code of 1892, from preparing a legal ballot and voting it; hence they signed declarations, alleging that they were qualified under the constitution of 1869, and according to the laws 002423enacted thereunder they could have prepared their own ballots according to the laws, and thereby have voted for contestant.

Contestee argues that if they (contestant's friends) had desired to have voted they could have voted the ballots in question as well as his friends did. This is no argument worthy of refutation even. The ballots voted at the regular polls were illegal, and if every man in the district had voted, would not have cured the illegality. As contestant's friends could not vote a legal ballot at the regular polls, they signed declarations of how they intended to have voted if they had been permitted. Page 7 Rec., N.C. Marks' testimony, shows that at his poll (Question 10, of page 7) there were 31 declarations voted by persons who could not vote legally at the regular poll. On page 11 of Record, in C.B. Williams' testimony, it appears that 55 persons signed the declaration of intention. Answer to question 2, on page 12 of Record, N. Gordon introduced 227 names and declarations duly signed.

On page 15 of Record, answer 18, it will be seen that R.M.C. Morton introduced 212 names, signed, and declarations of intentions of the voters.

On page 19 of Record, contestant introduced the box containing 26 declarations and a certified list from Tunica precinct, Tunica country. On same page the box and list of declarations from Bear Camp precinct, Issaquena county, is filled with a list of 88 names. On page 19, will also be found the box from Smeed precinct, of Sharkey county, containing 80 declarations, and a certified list, as introduced by contestant, received from the commissioners at that precinct. On page 19 of Record will be seen that the box from Shelby precinct, in Bolivar county, was received, and introduced by contestant containing 289 declarations, and a certified list of the names. Same page will be seen that the box from Mound Bayou precinct was received, containing 64 declarations, and a certified list of the names. On page 20 of Record will be seen that the box from Friar's Point was received and introduced, containing 37 declarations, and certified list of names.

On same page a certified list of declarations and names from Jonestown, Coahoma county, were introduced and filed containing 00252433 names. On same page will appear the introduction and filing, the box from Gunison precinct, with 30 names and declarations, likewise a certified list thereof.

Thus it is shown that there were 1,1752 declarations of intention voted by the voters of the district. Now, it is regarded unnecessary to argue the weight these declarations have before the committee as proof of how the voter would have voted, had he been permitted. Contestant respectfully insist that he is entitled to the credit of the 1,172 votes as signed to the declarations, and also on the lists certified therewith. All these declarations and certified lists are duly filed with the clerk of the House of Representatives to be exhibited as profert before this committee at the final hearing of this cause.

The question might occur, why is it that no more persons signed this declarations of intention? This question is answered in the testimony of C.B. Williams, and also the rebuttal deposition of contestant. First, it it was only on the eve of election day before it was known for a fact that the illegal ballots were to be circulated by the officers at the regular polls; and it was quite a task to get the plan of signing these declarations circulated throughout the ten counties of the district.

Secondly, the plan of having this separate voting process was indeed quite a risk. The managers of the Republican campaign recognized that there was cause for the greatest apprehension of violence, if this plan was generally known; therefore only a few precincts were regarded safe for such method of declaring the voter's choice, and the time for circulation of the information was so limited, coupled with the further fact that there could not be the usual publicity given the matter because it was reasonably feared that there might be some excuse for political violence. It is true, contestee had a number of his witnesses to swear that there exists the most friendly feeling between the two races; yet, it is a matter of current history that this pretended friendliness between the races on political occasions, such as that of last November, could be broken at any moment, when the Democrats thought that such was necessary to make absolutely certain their success. This can be seen by reading the editorials on page 26 of Record. There it is seen that the Democrats 002625were alarmed at the diligence exercised by the Republicans, and hence they were vigilant; and it was necessary that great caution should have been used. The occurrence in South Carolina at the polls clearly emphasizes the fact that the greatest prudence on part of the managers of this district spared our section the deplorable experience realized by the Republicans of South Carolina. But as it is clear to the mind that the 2,486 votes cast in this district last November (1898) were divided so that 2,068 were declared voted for contestee, and 418 for contestant, and all these 2,486 being illegal, then this number, as a whole, must be rejected; and rejecting the whole vote of the district as illegal, then the 1,172 declarations should be counted for contestant, and as all the votes declared for contestee are illegal, and can not be counted under the State law, the only votes which can be counted, according to the rulings of the House of Representatives, are the 1,172 declarations, which were made on election day according to the requirements of the House as decided in former cases.

CONCLUSION.

Contestant has discussed this case with a desire to steer clear of any sentimentality whatever. This is a case where the election officers wilfully violated the mandatory terms of the State law. The State law was violated in the preparation of the ballots by the State officers, and also by the counting of the same by the State election officers. This is clear, and can not be questioned. The State statute declares that ballots not provided in accordance with law shall not be counted; and it is not believed that Congress will count ballots for contestee, which the law of his own State declares shall not be counted. It is noted that the secretary of state, a witness for contestee, on page 69 of Record, the following: "While there is no statute directing that there should be a separate ballot for Congress and for the constitutional amendment, it is suggested that as one ballot refers to a federal office, and the other, a purely State matter, they should be kept separate, and separate returns made."

This is a strange suggestion. The legislature of the State did not remain silent on the question as to how a constitutional 002726amendment should be submitted. If the statute had even remained silent on this subject, the suggestion would have been worthy of some consideration; but in this case, the legislature, acting under the terms of the constitution, expressly declared in Section 3654, of Code 1892, that, "Whenever the question of a constitutional amendment, or other question admitting of an affirmative or negative vote, is submitted to a vote of the electors, the amendment, question, or matter, shall be printed on the official ballot, together with the names of the candidates," etc. Where is any room for the suggestion of the witness, that there should be two ballots, when the State law clearly forbids such a thing. This witness states in his answer on page 64 of Record, that there was published in the Vicksburg Herald a letter from Hon. J. A. P. Campbell, ex-chief justice of the supreme court, where he also holds that the separate ballot is valid. Judge Campbell is not on the bench, and hence contestant has nothing to say concerning the statement. The letter from Judge Campbell is not submitted, and therefore any discussion concerning it is out of place. But as the statute is plain and needs no construction, we stand pat upon its terms.

We willingly testify to the character and standing of Judge Campbell, both as a citizen and a jurist. We also testify to the high character and standing of our secretary of state, Colonel Powers; but the Colonel has committed a violation of the law in the preparation of the official ballot for last election and as the statute declares that such ballots shall not be counted, it is not believed that this committee will add to the violations of law by counting same. The Record shows that contestant introduced as exhibits to his deposition (pages 19-20 of Record) several boxes containing the declarations of voters at several precincts of the several counties. Contestant showed how he came in possession of the boxes, and of the regularity with which they were kept after reaching his custody. The declarations and certified lists introduced by contestant can not be considered hearsay, because they were exhibited to contestee, and filed with the deposition as self-evident, speaking for themselves. And to further satisfy contestee of the fairness in the matter, contestant (page 22 of Record) specially offered to tender him any of the 002827parties for cross-examination whose names appeared as witnesses to the declarations of the voters on that day. Contestee failed to suggest any desire to question the correctness of the proceedings. Now, it is confidently insisted that the whole 2,486 votes cast at the regular polls in this district last November shall be rejected, and that the 1,172 declarations signed, and the certified list of names of persons signing the same shall be counted for contestant, and that the contestee be declared not elected to the 56th Congress, and that contestant be declared the duly elected Representative for the third district of Mississippi.R. E. DOAN,J. E. WALKER,Attorneys.