The undersigned, a minority of the Committee of Elections, dissenting from the conclusions of the majority, in the case from the sixteenth district of Pennsylvania, ask leave to submit the following statement.

The right to represent the sixteenth district of the State of Pennsylvania in the thirty-ninth Congress is claimed by Alexander H. Coffroth and William H. Koontz. Neither of the claimants was admitted to the House at its organization, but the case was referred to the Committee of Elections by the following resolution:

"Resolved, That the certificates and all other papers relating to the election in the sixteenth congressional district of Pennsylvania be referred to the Committee of Elections, when appointed, with instructions to report, at as early a day as practicable, which of the rival claimants to the vacant seat from that district has the prima facie right thereto, reserving to the other party the privilege of contesting the case upon the merits, without prejudice from lapse of time or want of notice."

In order to render our statement intelligible, we annex, as part of it, an exhibit of the statutory provisions of the State of Pennsylvania applicable to the election of representatives in Congress, to which frequent reference will be made.

If the House contemplated in the resolution such a prima facie right as would have authorized the Clerk to place the name of one or the other of the claimants on the roll of the House at its organization, we are of the opinion that neither claimant had such a prima facie right. The proclamation of the governor (paper 1) would manifestly be the best, if not the only evidence of such a right, under the federal and State laws applicable to the case. (42* and U S. Stat. at Large, vol. xii, p. 804) But that proclamation, while it does show that certain representatives from that State were elected according to the laws of the State, does not show that either of the claimants was so elected. On the contrary, it expressly shows that no such returns had been received as would authorize the governor to proclaim the election of any representative in the sixteenth district.

Probably the return of the board of district judges, transmitted in accordance with the statute of Pennsylvania, (39* and 43*,) by the governor, to the House of Representatives, would also establish such a prima facie right, if unimpeached, provided it were accompanied by proper proof that the election held in accordance with federal or State laws.

It is possible that the certificate of election which the district board is required (41*) to transmit to each person elected to serve in Congress, if satisfactorily authenticated and unimpeached, would also establish such a technical right, provided it were, at the same time, properly shown that the election was held in accordance with State or federal laws.

But neither by a return of the district board to the secretary of the Commonwealth, nor by a certificate of that board to either of the claimants, has such a prima facie right been shown, in this case, before the committee. Each claimant presents a paper purporting to contain the return of the district board, showing his election. Paper 4 is Mr. Coffroth's return; paper 2 is Mr. Koontz's return. Each claimant also presents a paper purporting to be a certificate by the district board of his election. Paper 16 is Mr. Coffroth's certificate; paper 15 is Mr. Koontz's certificate. To Mr. Coffroth's return (paper 4) there are five objections:

1. It is evident that it does not, in itself, satisfy the law of the United States, which permits the Clerk to place on the roll, at the organization of the House, "the names of such persons only whose credentials show that they were regularly elected, in accordance with the laws of their States, respectively, or the laws of the United States." Nor is there, in our judgment, any supplementary proof before the committee which, if coupled with the paper, would have authorized the Clerk to place his name on the roll of the House in compliance with this law. The legitimate evidence upon the question whether Mr. Coffroth was regularly elected in accordance with the laws of the State of Pennsylvania or of the United States will be particularly considered in our examination of another branch of the case.

2. This return lacks the authentication which would be essential to it as the basis of such a prima facie right. It neither bears upon its face such authentication, nor is it so authenticated by any other lawful evidence before the committee. It bears neither the great seal of the State, nor any other official seal recognized by the act of Congress relating to the authentication of public acts and records. It is not authenticated, as a lawful return, by an accompanying official certificate or act of the governor, or of any other officer; but, on the contrary, is repudiated by the governor in his official proclamation. It has not the sanction of an official transmittal by the governor to the House of Representatives, as evidence of an election under the law of the State, (43*.) The official character of those who sign it is not admitted by Mr. Koontz. On the contrary, he denies it, and maintains the legality of the rival district board, from which emanates his own return, upon grounds which we shall soon have occasion to examine. Indeed, if this were admitted, it would evidently be a dangerous precedent for the Clerk to give one claimant the power to authenticate, by his own mere admission, the original credentials of another, and so place his name on the roll at the organization of the House.

3. This return is contradicted and neutralized as a basis for such a prima facie case as we are now considering, by the official proclamation (paper 1) of the governor of Pennsylvania, which was transmitted to the Clerk of the House, and constituted the credentials of the members now representing that State. The following is an extract from that proclamation: "No such returns of the election in the sixteenth congressional district have been sent to the secretary of the Commonwealth as would, under the act of assembly of 2d July, 1839, authorize me to proclaim the name of any person as having been returned as duly elected a member of the House of Representatives of the United States for that district." And it is shown by the official statement of facts made by the attorney general of the State of Pennsylvania, (paper 32,) and used as one of the proofs before the committee, that the return of Mr. Coffroth (paper 4) was before the governor when he issued the proclamation.

4. The return in favor of Mr. Coffroth (paper 4) stands confronted by a return in favor of Mr. Koontz. (Paper 2.) Leaving out of view all extrinsic proofs, and looking only at the faces of the two returns, we find the return in favor of Mr. Koontz to be better than that in favor of Mr. Coffroth. Indeed, if the return of a district board could, standing alone, secure a prima facie right to a seat, it is certain that the return in favor of Mr. Koontz would, if it stood alone, give him such right. It is also equally certain that the return of Mr. Coffroth, standing alone, could not give him that right. If the return in favor of Mr. Coffroth (paper 4) purports to be the return of the election in the sixteenth district of Pennsylvania, so does the return in favor of Mr. Koontz. (Paper 2.) If the former purports, in the body of the instrument, to be the return of a majority of the district judges of that district, representing four of the five counties, so does the latter purport to be the return of all the district judges of that district, representing all of the five counties. If the former purports to show the signatures and seals of four judges, representing four of the counties, so does the latter also purport to show the signatures and seals of five judges, representing all the counties of the district. If the former was presented to the governor, and insisted upon as the basis of his proclamation in favor of Mr. Coffroth, so also was the latter presented to him, and insisted on as the basis of his proclamation in favor of Mr. Koontz. If the latter is neutralized by the governor's proclamation, so also is the former. In none of these particulars is Mr. Koontz's return inferior to Mr. Coffroth's. In some of them it is superior. But in one other point of comparison the return which confronts Mr. Coffroth is immensely superior to his own. It purports to be a return of all the votes cast for members of Congress in all of the five counties of the district in strict compliance with the law, while Mr. Coffroth's return purports to be a return of the votes of only four of the five counties. And this brings us to our main objection to the return.

5. It is, in our judgment, a fatal defect in the return presented in favor of Mr. Coffroth that it does not purport to be a full return of all the votes given in the district for representative in Congress. The law provides that "the judges of the several counties, having met as aforesaid, shall cast up the several county returns, and make duplicate returns of all the votes given for such office in said district, and of the name of the person or persons elected." But the return shows that the votes of four counties only were cast up; that the vote of the county of Somerset was not counted; that "Alexander H. Coffroth, having a majority of all the votes cast, as counted before the board, is declared duly and legally elected;" and that "the county of Somerset was not represented by a judge or otherwise at the meeting."

We concur in the opinion of the attorney general, (paper 32,) that, for this last reason, the return of Mr. Coffroth was so essentially defective as to be no return at all, and was no proper basis for the governor's proclamation. For the same reason, as well as for the others already given, we are of the opinion that it constituted no lawful basis of a claim for a place on the roll at the organization of the House. We shall soon have occasion to inquire whether it is valid to any extent or for any purpose.

We now come to the examination of the return of the board of district judges presented in favor of Mr. Koontz. Its defects have already been incidentally considered. It is true that it purports, on its face, to be a full return of the votes of all the five counties of the sixteenth district, and to have been signed and sealed by five judges constituting a full board, and was presented to the governor as a basis for a proclamation in favor of Mr. Koontz. But neither alone nor coupled with any legal supplementary proof before the committee would it satisfy the act of Congress relating to the credentials of members. Moreover, its authentication is as defective as that of Mr. Coffroth's return; it is confronted by the return of a rival claimant, and is contradicted and neutralized by the proclamation of the governor, whose official duty it was to proclaim which of the returns, if either, was valid. In our judgment, then, Mr. Koontz has made, by this return, no such prima facie case as would have authorized the Clerk to place his name on the roll at the organization of the House.

The two certificates of election (papers 15 and 16) purporting to have been addressed, each by a district board, to the claimants, respectively, are probably both regular in form, (41*,) but neither can support a prima facie claim to the contested seat for the following reasons: Neither complies with the statute relating to credentials, whether taken by itself or coupled with other proofs before the committee. Neither is authenticated, each is contradicted by the other, and both are destroyed by the proclamation of the governor. (Paper 1.) Moreover, the certificate (paper 16) in favor of Mr. Coffroth is contradicted by the return (paper 4) given in his favor by the same district board; for the certificate contains a recital that the board had "counted the votes cast in said district," whereas the return explicitly shows that they did not count the votes of Somerset county. But it is doubtful whether these certificates, which are not required by law (41*) to contain any statement of the votes cast, and were manifestly intended by the legislature as mere notifications to the members elect, should, in any case, be elevated to the dignity of credentials at the organization of the House.

We are of the opinion, therefore, that neither of the claimants has established such a prima facie right as would have authorized the clerk to place his name on the roll of the House at its organization. This would dispose of the case if it was the intention of the House to instruct the committee to report which claimant had such a strict prima facie right; but we do not so understand the resolution. We understand the House to have required the committee to report which claimant, if either, was, by the certificates and papers referred, without additional confirmatory or contradictory proofs, shown to be entitled to the disputed seat.

The state of facts established by the proofs will be more intelligible if preceded by a brief abstract of the subjoined statutory provisions of the State of Pennsylvania, exhibiting the various stages of the process by which the expression of the will of the qualified electors of a congressional district of that State is transmitted from the ballot-boxes to this house. This is accomplished by four successive official acts:

1. The election boards, by whom the home and military polls are actually conducted, (1*, 2*, 15*,) send returns of the elections, held by them, to the boards of county return judges, (5*, 6*, 26*, 27*, 28*.)

2. The several county boards of return judges send aggregate returns of the home and military vote, for their respective counties, to the district board of judges, (37*, 38*.)

3. The district board sends an aggregate return of the vote for the district to the secretary of the Commonwealth, (39*, 40*.)

4. The governor issues his proclamation, or transmits the district board return to this house, (42*, 43*.)

The return of each of the precinct boards, by whom the home polls are conducted, is sent to the county board by a judge, who presents them in person, (5*, 6*, 8*.) The return of the board by whom a military election is conducted is not sent to the county board by a judge in person, for the exigencies of the military service would not permit that, but is sent to the county board by mail, or express, (or by a commissioner appointed by the governor,) through the office of the prothonotary of the county, (28*.) The reasons for the provision by which the military returns, instead of being sent directly from the army to the county board, are sent to the prothonotary's office and by him certified to the county board, are very obvious.

The county boards are required to count all the returns, (as well those from the military polls as those from the home precincts,) excepting only those which are so defective as to be, unintelligible, (10*, 34*, 36*.) The home returns are cast up on the first Friday and the military returns on the third Friday after the election. (6*, 8*, 9*, 10*, 33*.) Each of these county board returns is required to contain a fair statement of all the votes given for the county for every candidate for Congress, to be signed (not sealed) by all the judges present, and attested by the clerks, to be taken in charge by one of the judges and by him produced at the meeting of the district board; and, as we have already seen, the district board is required to cast up the several county returns and send its return of the result to the secretary of the Commonwealth.

A failure by a county board to count an intelligible home precinct return as fatal to the validity of the return of such county board, as a failure by a district board to count one of the county returns is fatal to the validity of the return of such district board; and a failure by a county board to count an intelligible military election return is precisely as fatal to the validity of the return of such county board as is a failure to count one of the home precinct returns. (10*, 34* 36*.)

In each of the five counties of the district all of the home and military precinct returns were duly forwarded—the former by the hands of precinct judges, and the latter by mail—to the office of the prothonotary. But in one case, that of company B, 21st regiment volunteer cavalry, the original return was before the Adams county board, and not the certified copy provided for by the law, (30* and paper 12.) The law, however, while it does require the prothonotary to deliver certified copies of the returns of military votes to the county board, does not restrict the board to the use of such copies to the exclusion of the originals, (34*.) Eight such returns were rejected by the Adams board, and two by the Bedford board. (Papers 12, 18.)

All of these home and military precinct returns (with a single possible exception, which was disregarded by the parties) were duly counted by the proper county boards in three of the five counties, viz: Franklin, Fulton, and Somerset; but in Adams and Bedford a majority of each county board refused to count certain military returns. In Bedford county the prothonotary refused to certify to the county board two of the military returns, and set forth his reasons for such refusal, in the instrument by which he certified the other copies. The minority in each case opposed the action of the majority. In Adams the majority of the judges signed a paper purporting to be a return of the home and military vote, but in fact not embracing the rejected military returns of that county. (Paper 11.) At the same time and place they signed, as return judges, a paper setting forth their reasons for not counting the several rejected returns. (Paper 12.) On the other hand, the minority of the same board signed a paper purporting to be a return of the home and military vote, and in fact including the military returns which were rejected by the majority. (Paper 13.) And, at the same time and place, they signed a paper containing a protest against the action of the majority and setting forth their reasons for not concurring therein. (Paper 14.)

In Bedford county all the judges of the county board on the first Friday after the election signed a paper purporting to be a return of the home vote. (Paper 8.) But after the computation of the military vote, the majority signed a paper purporting to be a return of the military vote for that county, but, in fact, excluding the two rejected returns. (Paper 9.) The minority, on the other hand, refused to sign that paper, but did sign a paper purporting to be a return of the military vote for the county, and, in fact, including the two rejected returns. (Paper 10.)

The returns of the majorities of the Adams and Bedford county boards were produced by judges belonging to and designated by the majorities of such boards, at the meeting of that district board from which emanated the return in favor of Mr. Coffroth. (Paper 4.) The returns of the minorities of these two county boards were borne by judges belonging to and designated by the minority to that district board from which emanated the return in favor of Mr. Koontz. (Paper 2.)

If it was the intention of the legislature of Pennsylvania to augment the difficulties which must always attend the exercise of the elective franchise by soldiers in the field, by hampering them with more stringent and minute formalities than encumber the elective franchise within the State, the intention was certainly not well expressed in the military election act of 1864, which contains the following sweeping clause, not found in any other general law of that State: "No mere informality in the manner of carrying out or executing any of the provisions this act shall invalidate any election held under the same, or authorize the return thereof to be rejected or set aside." (Sec. 26, law 1864—32.*)

By the law applicable to the home elections, a clear distinction is made between the return of the precinct judges, strictly so called, and the poll-book, tally-list, and certificates of oaths. One duplicate of the poll-book, tally-list, and certificates of oaths is sealed up in one or more of the ballot-boxes, and deposited with the nearest justice, "to answer the call of any persons or tribunal authorized to try the merits of such election." (Pardon's Dig., p. 287, sec. 55.) The other duplicate is sent under seal to the office of the prothonotary of the county. But an entirely different disposition is made of the return. That, and that only, goes to the county board. To that only do the judges of the county board look to ascertain the vote of the precinct. The errors, defects, and informalities of the poll books, tally-lists, and certificates of oaths, are immaterial. If the returns are not so defective as to be unintelligible, the judges must count them, and leave to other tribunals the rectification of whatever wrongs may ensue. The county board must meet on the first Friday after the election, (6*) and may meet on the morning of that day. But the law does not compel the deposit of the poll-books, tally-lists, and certificates, before the evening of that day, (4*.) Hence, during the whole of the day on which the board meets they may be inaccessible, even though the judges should desire to inspect them.

In the military elections the same distinction exists between the return and the poll-book, tally-list, and certificate. The military return is, in substance, the same as the home return, (6*, 26*.) It is true that the military return is sent to the office of the prothonotary, where also the tickets, poll book, tally-list, and certificates of oaths are sent, all being written in the same book or series of papers. But the reason of this is to be found in the obvious propriety of sending the return to some known public office to await the call of the county board. And no office can be more appropriate than that of the prothonotary. This circumstance, therefore, does not affect the legal character of the return. The law requires the prothonotary to certify to the board copies of the returns, not of the poll-books or other papers. (30*.) If the originals are used, it is only at the original returns that the judges are required to look.

But all of the ten rejected returns of Adams and Bedford counties, (using the word in its restricted and proper sense,) except those of company B, 21st regiment, Adams county, and company H, 208th regiment, Bedford county, are free from such defects as would render them unintelligible or incapable of computation; those of companies B and G, 138th regiment, and company I, 210th regiment, are absolutely perfect; and those of the three hospitals and of Barracks No. 1 closely approximate to perfection.

Now, the home electors have no such sweeping provision in aid of informalities as has been enacted for the soldiers. If, then, the county board cannot inquire into the regularity of the poll-books, tally-lists, or certificates of oaths of home electors, who come with returns which are not so defective as to be unintelligible or incapable of computation, why should they inquire into the regularity of these papers when soldiers come with intelligible returns?

If, notwithstanding the evident intention of the legislature to lighten the burden of formalities, always so oppressive to electors in the field, and to intrust to courts and other tribunals the remedy of inevitable evils, we are to scrutinize the soldier's poll-books, tally-lists, and certificates of oaths, as well as his returns, while the home elector is merely required to bring intelligible returns, still the soldier will bear even this scrutiny in the present case. For such a scrutiny shows the illegality of the rejection of eight of these returns.

1. The return of company K, 184th regiment, was rejected "because it embraced one voter from Franklin county." (Papers 30 and 12.)

For want of proper proof that this vote was not counted also in Franklin county, which is within this congressional district, Mr. Koontz, who insists on his return, should lose one vote, and the residue should be counted: for Mr. Coffroth, twenty-one; and for Mr. Koontz, thirty-eight.

2. The return of company C, 202d regiment, was rejected for the alleged reason that the election was held and the return made by only one judge. Papers 12, 22.)

All three of the judges signed this return, which is not only intelligible, but almost perfect in form. And yet the accompanying poll-book and certificates do not show that more than one judge was sworn. We have therefore concluded, not without grave doubts, to reject this return, which would, if received, give Mr. Coffroth fifteen and Mr. Koontz twenty-seven votes.

3. The three returns for the Mower, Cuyler, and McClellan hospitals (papers 12, 23, 24, 25) were rejected because the certificates of the oaths of the election officers were wanting.

This was no lawful ground for their rejection, for it appears from the whole papers that the judges and clerks were actually sworn, and the returns, though defective in form, are perfectly intelligible, and clearly within the provisions of the statute applicable to mere informalities. They give Mr. Koontz five votes, Mr. Coffroth none.

4. The return of companies B and G, 138th regiment, (papers 12, 26,) was rejected because two companies voted at one poll, before one set of election officers.

It does not, however, appear from the return, or from any other proof before the committee, that two companies voted at one poll or before one set of election officers. It does appear that electors of two companies so voted. But under the act of 1864 (13* and 14*) electors of two hundred companies may so vote. In order to invalidate this return, it must be shown that these thirty-three voters constituted two organized companies, and not detachments absent from their companies. This does not appear. On the contrary, the language of the return and of the poll-book is precisely such as would be proper if they voted as detachments. (20*, 24*, 25*, 26*, 27*.) There could be no excuse for such rigor towards electors in the military service as would be involved in the rejection of this return, even if the liberal statutory provisions respecting defects and informalities were entirely wanting. This return gives Mr. Coffroth one and Mr. Koontz thirty-two votes.

5. The return of company I, 210th regiment, (papers 12, 27,) was rejected because the certificates of the oaths of the election officers were wanting.

The poll-book recites that these officers were sworn. Their oath is annexed to the poll-book, duly signed by all the officers. The clerk's certificate is there. The return is substantially correct and duly signed. These papers clearly show that the election officers were duly sworn, and, in our judgment, are undoubtedly on the safe side of the line which separates essential defects from mere informalities.

6. The return of company B, 21st regiment cavalry, (paper) was rejected for three alleged reasons:

(1.) No copy of the return was certified by the prothonotary to the return judges.

It has already been shown that the judges might use the original which they had as well as a copy. And if there could possibly be any doubt as to their right to do that, there can be no doubt as to our right to use the certified copy which is before us.

(2.) It is alleged that the election of officers appear to have been affirmed by Captain James Mickley, who was not an officer of the election.

This, however, does not appear from the return, or from any of the papers connected with it, or from any other proofs before the committee.

(3.) The number of votes cast for representative, is alleged to have been greater than the number of Adams county electors present.

The poll-book does show that two votes were cast by electors of Franklin county, which is in the same congressional district. There being no proof that these two votes were not also counted in Franklin, they should be deducted from the vote of Mr. Koontz, and the rest counted—for Mr. Coffroth four, and for Mr. Koontz thirty-four.

From the copy of military returns (paper 18) certified to the Bedford county board by the prothonotary, it appears that the returns rejected by the majority, were those of company H, 208th regiment, (paper 19,) and Barracks No. 1, Washington (paper 20) that the board had actual notice of the presence of the originals, in the prothonotary's office, and of his reasons for refusing to certify them.

The return of company H, 208th regiment, (paper 19,) was rejected for the alleged reason that the poll-book gives the names of only thirty-six Bedford county electors, while fifty-two votes are returned for members of Congress. This is true. But sixteen votes are shown, by the poll-book, to have been cast by electors of Franklin and Fulton counties, of the same congressional district. They were sent to one county, instead of being distributed. Inasmuch as it has not been shown before the committee that these sixteen votes were not also counted in the proper counties, they should be deducted from the vote of Mr. Koontz, who insists upon the return, and the rest counted—for Mr. Coffroth eighteen, and for Mr. Koontz eighteen.

The return of Barracks No. 1 was rejected for the alleged reason that the poll-book contains the names of only forty-eight electors, and yet eighty-seven votes were cast for representative in Congress. Passing from the return, which exhibits no such discrepancy, and is very far from being so defective as to be unintelligible, to the poll-books, which present the apparent contradiction, we find in the proofs before us a satisfactory explanation. By the law (20*) the election officers are required to keep, at each of the polls, as many poll-books as there are counties represented by electors. At the polls for Barracks No. 1 there were two for the sixteenth congressional district, which were produced before the committee. (Papers 20, 21, 31.) There may have been others. Of these two, one was the return in question, and the other was for Fulton county. (Paper 31.) The latter return, coupled with paper 29, shows that thirty-seven Fulton votes were cast at that election, and yet none were counted in that county for representative in Congress. It appears that the votes were in this case, as in the last, sent through the mistake of the officers to one county, instead of being distributed. This will not, in our judgment, warrant us in rejecting any of these votes except the two which are unexplained, and should be deducted from the vote of Mr. Koontz. Mr. Coffroth is entitled to twenty-nine, and Mr. Koontz to fifty-six.

The majority and minority returns from the Adams county board, produced in the respective district boards, were, therefore, both invalid. That of the majority was invalid for the same reason for which the return of the Coffroth district board was invalid. It did not embrace all the valid military precinct returns. It was claimed that it was also invalid because it was not signed by all the precinct judges present at the meeting of the board; that while it might not have been invalidated by the mere absence of a minority, yet the nonconcurrence, and a fortiori the actual opposition of the minority being present, did destroy its validity. The considerations in favor of this position are not without weight. The phraseology of the law is peculiar and peremptory. "The clerks shall thereupon, in the presence of the judges, make out returns in the manner hereinafter directed, which shall be signed by all the judges present, and attested by said clerks," (9*.) And if it would be a hardship to suffer a minority, by its opposition, to destroy a return, and so temporarily deprive a duly elected member of his seat, it would certainly be no less a hardship to suffer a majority, by a false return, to give the seat, despite the protest of the minority, to a claimant who was not in fact elected. Indeed, the injury in the former case would not be so great as in the latter. In the former case the rightful claimant would be subjected to a temporary delay in assuming his office, and the country to a temporary loss of his services; whereas, in the latter, an intruder, with no rights, would be thrust by individuals into the national legislature at its organization, to remain until evicted after a contest. The right of a district to be always represented is nowise vindicated, but rather assailed, by the admission of an interloper to its place on this floor. The hazard of empowering a dishonest minority of county return judges to temporarily deprive a rightful claimant of his seat, and the country of his services, is as nothing compared with the hazard of empowering a dishonest majority to send hither men not chosen by the people to legislate for the country until driven from the House. It is true that this power must always reside somewhere, in governors or other officers, authorized to furnish credentials to representatives in Congress. But only urgent reasons would warrant the extension of this power from responsible public officers to private individuals. The attorney general of Pennsylvania, in his opinion, (paper 32,) which was accepted by the claimants as a correct statement of facts only, seems to have considered the provision of section 60 of the general election law of 1839, requiring the return to be signed by all the judges present, inapplicable when the district is composed of two or more counties, for which case additional provisions are made in section 63. But we are of a different opinion, and, if it were necessary to decide this question, should find great difficulty in upholding the return of the majority against the objection that the minority opposed it.

The return of the minority of the Adams county board, although it did embrace all the precinct returns, was invalid because it was the return of a minority, if not for the reason that it was not signed by all the judges present.

For the same reasons the returns of the soldiers' vote, by the majority and minority of the Bedford county board, were both invalid.

Neither these returns, nor the judges who bore them, had any place in either of the district boards.

In Franklin county, although the return of the county board was signed by all the judges, there was a difficulty in the selection of a judge to produce the return at the district board. The law provides that one of the county judges shall take charge of the return, and produce it at the meeting of the district board, (38*.) The mode of his selection is not indicated. Any one of the county judges who produces a regular valid return has, prima facie, a right to a seat in the district board, without credentials showing his appointment. Nevertheless, the judges of the county board undoubtedly have the right, by a majority vote, to select their representative in the district board, and to reconsider their choice and make another, at any time before the meeting of the board. Mr. Laker, who was chosen by a majority at the second meeting of the Franklin county board, and attended the Coffroth district board, was the lawful district judge for that county; and Mr. Wilhelm, who was unanimously chosen at the first meeting of the county board, and attended the Koontz district board, was not. And yet he was actually a member of the county board, and if he had produced the return, at a meeting of the district board, would have been prima facie entitled to act as district judge, (38*.)

Mr. Wills was the lawful district judge for Somerset county, and attended the Koontz board only.

Mr. Winter was the regularly chosen district judge for Fulton county, and on the proper day attended first the Koontz board, and afterwards the Coffroth board. If the first board had contained a majority of the lawful judges, including himself, his functions would have ended there, and his attendance at the second would have been unlawful. But there was only one other lawful judge present at the Koontz board, viz: Mr. Wills, of Somerset. And when Mr. Winter reached the Coffroth board, he found only one other lawful member there, viz: Mr. Laker, of Franklin, who had been elected by a mere majority in place of Mr. Wilhelm, whose election was lawful and unanimous.

In our judgment, then, the certificate and other papers, which were referred to the committee, and were competent as evidence, show the following to have been the whole number of votes legally returned for the respective claimants:

UNDISPUTED.

Coffroth. | Koontz.

Franklin county, total ...... 3,457 | 3,508

Fulton county, total ...... 807 | 535

Somerset county, total ...... 1,592 | 2,512

Adams county, part ...... 2,707 | 2,366

Bedford county, home ...... 2,410 | 1,740

Bedford County, part soldiers ...... 94 | 318

DISPUTED.

Adams county—Company K, 184th regiment ...... 21 | 38

—Mower hospital ...... ...... | 1

—Cuyler hospital ...... ...... | 1

—McClellan hospital ...... ...... | 3

—Companies Band G, 138th regiment ...... 1 | 32

—Company I, 210th regiment ...... 9 | 19

—Company B, 21st cavalry ...... 4 | 34

Bedford county—Company H, 208th regiment ...... 18 | 18

—Barracks No. 1 ...... 29 | 56

11,149 | 11,181

Majority for Mr. Koontz ...... 32

If the majorities of the county boards of Adams and Bedford had counted as they should have done, all the returns which, irrespective of the accompanying, poll-books, tally-lists, and certificates of oaths, were free from defects sufficient to render them unintelligible or incapable of computation, the following would have been the result in the district canvass:

UNDISPUTED.

Coffroth | Koontz

Franklin county, total ...... 3,457 | 3,508

Fulton county, total ...... 807 | 535

Somerset county, total ...... 1,592 | 2,512

Adams county, part ...... 2,707 | 2,366

Bedford county, home ...... 2,410 | 1,740

Bedford county, soldiers' part ...... 94 | 318

DISPUTED.

Adams county—Company K, 184th regiment ...... 21 | 38

—Company C, 202d regiment ...... 15 | 27

—Mower hospital ...... ...... | 1

—Cuyler hospital ...... ...... | 1

—McClellan hospital...... ...... | 3

—Companies B and G, 138th regiment ...... 1 | 32

—Company I, 210th regiment ...... 9 | 19

Bedford county—Barracks No. 1 ...... 29 | 56

11,142 11,156

Majority for Mr. Koontz ...... 14

It remains to consider two positions which were taken on the argument before the committee:

1. It was urged that inasmuch as the vote of Somerset would not affect the result, the return of the Coffroth district board ought to be held conclusive by this committee as to the four other counties for which it purported to be a return; that otherwise Mr. Koontz would be permitted to profit by the wrong of his own partisan.

But we are unable to adopt this view, for the following reasons:

1. The governor, if he had not gone behind the returns of the rival district boards to ascertain by testimony who were the real district judges, (paper 32,) would have been compelled either to do nothing or to proclaim Mr. Koontz elected. On its face his return was perfect. Every judge who signed it had been a county return judge, and if he appeared in a district board with a county return, had a prima facie right to be there, which could only be defeated by showing that some other judge had in fact been selected by the county board to represent it in the district board. The Coffroth return was, on its face, worthless as a return upon which to base the governor's proclamation. The law requires the governor "to declare by proclamation the names of the persons so returned as elected." It by no means permits him to base his proclamation in part on the return and in part on evidence obtained aliunde. For the same reasons we must, if we do not go behind the return to inquire who were the lawful district judges, give the seat to Mr. Koontz, on his return alone.

2. The Coffroth return having, therefore, no legal character either before the governor or the committee, whatever regard we may give it will be a mere gratuity. It would certainly be a novelty if such an instrument should be conclusive. To withhold from it such conclusive character can be no real hardship to Mr. Coffroth, if he was not in fact elected. It cannot be a hardship to a claimant, who has neither a technical nor a substantial claim, to decline arbitrarily to provide him with a technical one, and hold it conclusive. On the contrary, to do so would be to wrong his competitor, if that competitor's claim, although not technically perfect, rested on a basis of real merit. If Mr. Coffroth had in fact a majority of the lawfully returned votes, it might well be called a hardship to suffer a partisan of Mr. Koontz, by a raid upon the district board, to rob him of his seat, but it cannot be said that this ought, of itself, to give the seat to Mr. Coffroth, if he did not in fact receive a majority of the votes, and had no chance of success, except through a previous raid of his own partisans on the soldiers' returns.

3. Looking behind the return of the district board, we find, as the attorney general did, that the district judges of Adams and Bedford counties were selected by majorities of their respective county boards; and we also find, what the attorney general had no occasion to inquire into, that the returns borne by those judges were nullities, and that, therefore, neither the returns nor their bearers had any place in the board.

II. It was also insisted before the committee that, if we should go behind the return of the district board, we ought to stop at the county board returns as conclusive, including the majority returns of Adams and Bedford counties. We cannot assent to this proposition. A scrutiny of the law will show that when two or more counties are embraced in one congressional district, as in the case before us, the county returns differ, in material points, both from the soldiers' elementary returns and from the district return. The law provides official depositories of the returns of the military election judges, and of the district board, viz: the offices of the secretary of the Commonwealth and of the prothonotary of the county. But for the return of a county board, when two or more counties are embraced in one district, no official depository is provided. It has but one office, viz: to transmit to the district board in an aggregate form the official declarations, made by the precinct judges, of the result of the elections by them held, and when that office is performed its mission is so completely ended, that the law provides no place where it may be afterwards preserved. Both the return of the district board and the soldiers' elementary returns are preserved in public offices, and coming from official depositories duly certified, are, of themselves, lawful evidence before us. But the return of the county board, as an official paper, has no existence after the board has met and acted, and can come before us in no legal form of proof, except by the admission of the parties, although it might also, in a regular contest, be received as part of a deposition. The Adams and Bedford returns are before the committee by admission of the parties, but that admission is mutual, and embraces the papers of both or of neither. It will be a strange proceeding if Mr. Coffroth, after getting his majority returns before the committee by such conditional assent of his competitor, shall be permitted to turn round and repudiate the conditions, and convert his papers, which are here only by suffrance, into conclusive returns. Mr. Koontz could of course, with no greater injustice, make the same preposterous demand.

But, in addition to this, the majority return of Adams county is confronted by a paper of equal authority before us, signed by the same judges, at the same time and place, which must be taken as a part of the instrument itself. From the two papers it appears that certain votes were not counted, for reasons which the precinct returns show to have been unlawful, and the return is a nullity. It is also confronted by the minority return, which shows that the majority return was made in the face of the actual opposition of the minority, and is, therefore, of at least doubtful validity.

In Bedford county the majority return of the soldiers' vote is in like manner confronted by the minority report, by a duly authenticated transcript of the certified copies of military precinct returns furnished by the prothonotary to the county board, showing the rejection of two returns, and the reasons therefor; and by the military returns, which show the rejection to have been unlawful.

We offer the following resolutions:

1. Resolved, That William H. Koontz has the prima facie right to a seat in this house, as a representative of the sixteenth congressional district of the State of Pennsylvania.

2. Resolved, That Alexander H. Coffroth, desiring to contest the right of William H. Koontz to a seat as representative of the sixteenth congressional district, be required to serve upon the said Koontz, within fifteen days after the adoption of this resolution, a particular statement of the grounds of said contest; and that the said Koontz be required to serve upon the said Coffroth his answer thereto within fifteen days thereafter; and that both parties be allowed sixty days, next after the service of said answer, to take testimony in support of their several allegations and denials; notices of proposed examinations of witnesses to be given at least five days before such examinations; no such examination to be commenced at one place before the expiration of five days from the conclusion of the last examination at another place; such examinations to be regulated in all other respects by the provisions of the act of February 19, 1851.

HALBERT E. PAINE.

J. W. McCLURG.

S. SHELLABARGER.

G. W. SCOFIELD.

• Minority Report on the Contested Election of Coffroth vs. Koontz (introduced on 1866-01-26 12:00:00 - CREATE_FROM - e663163) [This document]

• Minority Report on the Contested Election of Coffroth vs. Koontz (introduced on 1866-01-26 12:00:00 - CREATE_FROM - e663163) [This document] [view current proposal at this moment]
  • Motion to Read the First Minority Resolution (introduced on 1866-01-26 12:00:00 - PROCEDURE - e863849) [view current proposal at this moment]
    • None (introduced on 1866-01-26 12:00:00 - ADOPT_PROPOSAL - e863850) [view current proposal at this moment]
  • Motion to Print and Lay the Minority Report on the Table (introduced on 1866-01-26 12:00:00 - PROCEDURE - e863852) [view current proposal at this moment]
    • None (introduced on 1866-01-26 12:00:00 - ADOPT_PROPOSAL - e863853) [view current proposal at this moment]