The Committee of Elections, to whom were referred the memorial and accompanying documents of Charles Follett, esq., contesting the right of Hon. Columbus Delano to a seat in this house as a representative from the thirteenth congressional district in the State of Ohio, have considered the same, and submit the following report:

The election here contested was held on the second Tuesday of October, A. D. 1864, and the official canvass resulted as follows:

COLUMBUS DELANO. || CHARLES FOLLETT.

...... | Home. | Army. | Total. || Home. | Army. | Total.

Coshocton county ...... 1,645 | 373 | 2,018 || 2,136 | 34 | 2,170

Knox county ...... 2,421 | 337 | 2,758 || 2,399 | 50 | 2,449

Licking county ...... 2,770 | 339 | 3,109 || 3,485 | 56 | 3,541

Muskingum county ...... 3,406 | 609 | 4,015 || 3,444 | 57 | 3,501

...... |10,242 | 1,658 | 11,900 || 11,464 | 197 | 11,661

Showing a majority for the sitting member of two hundred and thirty-nine. The notice of contest on the part of the contestant, and proofs submitted by him, are found in miscellaneous document No. 8 of the present session. The sitting member made no answer and offered no proof.

It was contended by the sitting member that no notice of contest had been given him by the contestant, and if otherwise, that it did not appear that such notice had been given him within the thirty days prescribed by the statute of 1851, prescribing the mode of contesting elections to this house. The only evidence of the service of any such notice is contained in the following affidavits:

STATE OF OHIO, Knox County, ss;

Before Joseph Watson, a notary public within and for said county and State, personally appeared James T. Irvine, and makes oath that he served a true copy of the within notice of contest upon Hon. Columbus Delano, by leaving it at his residence in Mount Vernon, Knox county, Ohio, on the 29th day of December, A. D. 1864.

JAMES T. IRVINE.

Sworn to and subscribed before me this 7th day of January, A. D. 1865.

[SEAL.] JOSEPH WATSON,

Notary Public, Knox County, Ohio.

STATE OF OHIO, Licking County, ss:

Before me, Henry Brumback, a notary public within and for the county of Licking, State of Ohio, personally came James T. Irvine, and makes oath and says, that in addition to leaving a copy of the within notice at the residence of the said Delano on the 29th day of December, A. D. 1864, affiant afterwards, and on the 5th day of January, A. D. 1865, called upon the said Delano personally as to the service of said notice by copy thereof, left at his residence as aforesaid, and presented to him the original herein, and requested him to acknowledge the service of the same by signing the form of acknowledgment thereto attached in writing, as the same now appears; and also, on the 7th day of January, A. D. 1865, affiant again called upon the said Delano, at his residence in Mount Vernon, Knox county, Ohio, where said copy had been left, as before stated, and renewed the request to have said form of acknowledgment of service signed by said Delano, at which time he positively refused to sign any acknowledgment of said service, saying he would let Mr. Follett procure his own evidence, without his making any admissions in relation thereto. And further affiant saith not.

JAMES T. IRVINE.

Sworn to and subscribed before me this 15th day of November, A. D. 1865.

[SEAL.] HENRY BRUMBACK,

Notary Public of the State of Ohio

in and for the County of Licking.

It was contended by the sitting member:

1st. That the foregoing affidavits, not being depositions taken on notice to the opposite party, in conformity to the provisions of the statute of 1851, before alluded to, are not legal evidence of what they recite.

2d. That if the recitals of these affidavits be taken as proved, still the contestant had failed to "give" him the notice required by the statute. The statute of 1851 (Brightly's Digest, p. 254) contains the following provisions:

"Whenever any person shall intend to contest an election of any member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the member whose seat he designs to contest, of his intention to contest the same, and in said notice shall specify particularly the grounds upon which he relies in the contest."

"When any such contestant or returned member shall be desirous of obtaining testimony respecting such election, it shall be lawful for him to make application to any judge of any court of the United States, &c., who shall thereupon issue his writ of subpoena, directed to all such witnesses as shall be named to him, requiring the attendance of such witnesses before him at some time and place named in the subpoena, in order to be then and there examined respecting the said contested election, in the manner hereinafter provided."

"The party at whose instance such subpoena may be issued, shall, at least ten days before the day appointed for the examination of the witnesses, give notice, in writing, to the opposite party, of his intention to examine witnesses, which notice shall be served by leaving a copy with the person to be notified, or at his usual place of abode."

The question raised by the first objection made by the sitting member is, can service of notice be proved by affidavit, or must the testimony of a witness to the fact of service be obtained, like all other testimony, from witnesses, by deposition taken on notice to the opposite party, in conformity with the statute? The statute does not provide in what manner the fact of service shall be proved, but makes the general provision already cited for taking testimony. It may be noticed that this statute provision does not require the testimony of witnesses to be taken in the manner prescribed—only "it shall be lawful" to take it in the way therein specified; therefore, in the absence of any statute requirement as to the mode of proof of notice of contest, is the affidavit of a third person sufficient? This is the first case since the enactment of the law of 1851 where the question has been raised, so far as the committee know, or where it could, in practice, have been well raised; for though affidavits have been resorted to in almost every case as proof of the service of notice of contest, yet in every instance till the present case there has been an answer from the sitting member admitting the service of notice or waiving proof of it. The sitting member made no answer in this case, and neither admitted nor denied, but left the contestant to prove, that he had served the notice at all, and within the time prescribed by law.

The committee are of opinion that such proof, to be admissible, must be authorized by statute or some rule established by the tribunal before which the testimony is to be used, and that in the absence of these an affidavit could not be admitted according to the principles which govern in the course of all judicial proceedings. To admit an affidavit of a third person, unknown in character to the sitting member, taken without his knowledge, at a time and place and under circumstances wholly kept from him, is to open a door through which great fraud might be practiced if occasion required. It is a fact, too, as easy of proof in the manner pointed out in the statute for taking testimony as any other fact in the case, and it is deemed by the committee the safer way to require its proof in that mode, if the answer of the sitting member does not sufficiently admit the fact or waive the proof of it. This answer, if made, must by law be in possession of the contestant, before he can proceed to the taking of testimony under the statute, and therefore he will always have the means of determining the necessity of proof.

The committee did not, however, close their hearing of the case, with their conclusion upon this point, for the reason that they could not know that the House would agree with this conclusion, and in that event it would become ultimately necessary for them to pass upon the merits of the case. The committee were also desirous of reaching the merits of the case if possible, and therefore, reserving their decision upon all preliminary points, they heard the parties upon the entire proof submitted.

The second point raised by the sitting member was, that "if the recitals of the affidavits of notice be taken as proved, still the contestant had failed to give him the notice required by the statute." The sitting member claimed that the statute required personal notice. By the first affidavit of Mr. Irvine, it appears that notice was served upon the sitting member "by leaving it at his residence in Mount Vernon, Knox county, Ohio, on the 29th of December, A. D. 1864." The statute provision is, that "the contestant shall give notice in writing to the member whose seat he designs to contest." Is leaving a copy at the residence "giving" the sitting member such notice as the statute requires? Serving of notice by leaving a copy at the residence is not unusual in judicial proceedings, but it is believed by the committee that such service is never legal unless authorized by statute, and can never be substituted for actual notice unless thus sanctioned. In the law of 1851 there is an express provision for leaving a notice of taking depositions at "the usual place of abode" of the opposite party, but none for such service of notice of contest. A reference to the debate in the House at the passage of this act will show that this omission was designed in order to secure actual notice. When the bill was under debate in the House the following amendment was proposed:

"Provided, That if from any cause not within the control of the contestant said notice cannot be given, then said notice shall be given within thirty days after said disability shall cease."

To which it was proposed to add a further proviso, in these words:

"And provided further, That in case of the absence of the member whose seat is contested, the notice aforesaid may be served by leaving the same at his place of residence with some member of the family of suitable age to understand the same."

The member offering this last amendment supported it upon the express ground that otherwise "under this bill the notice referred to must be served personally upon the member whose seat it is intended to contest." Yet both amendments were rejected, and the bill, with this interpretation, became a law. The committee are satisfied that it is the correct construction to require personal notice. If personal notice should be impossible by reason of the absence of the sitting member from the county, or otherwise beyond the reach of the notice, or if from any other cause it is impracticable, the House has at all times control over the matter, and will provide a suitable remedy, as was done in the case of Williamson vs. Sickles. (Bartlett's Contested Cases, p. 289.)

In the second affidavit of Mr. Irvine it is stated that January 5, 1864, he presented to the sitting member the original of the notice of contest, and requested him to acknowledge the service of it at his house on a previous day, and that the sitting member declined so to do. The committee are of opinion that this would amount to a sufficient service under the law of 1851 if properly proved, and if within the time prescribed by that law. Upon the mode of proof nothing further need be added. Did this service fall "within thirty days of the time when the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same." The statute of Ohio, May 3, 1852, requires this determination to be made "within ten days after the first day of December," but the certificate may be given to the successful candidate at any time thereafter. There is no provision for proclamation or other notice to any one on what day within the specified time this determination is made. There is no way provided by statute by which any one can ascertain on what day within the limit specified the determination has been made. The committee are therefore of opinion that the contestant has thirty days from the last day of the "ten days after the first day of December," unless knowledge has been brought home to him of a determination at an earlier day. Consequently the fifth day of January would be within the thirty days, and in season.

The contestant claimed that the sitting member, by failing to answer, must be taken to have confessed the truth of the allegations in the notice. The statute requires of the sitting member, "within thirty days after the service, to answer such notice, admitting or denying the facts alleged therein, and stating specifically any other grounds upon which he rests the validity of his election." If the contestant and the sitting member were the only parties interested in the representation of this district, it might not be unfair to hold that the sitting member, upon service of notice upon him according to law, must answer as the law requires, or, by neglect or refusal, be taken as confessing the truth of the allegations made in conformity to law against his right to his seat, and abide the judgment of the House upon such confession. But the contestant and the sitting member are by no means the only parties interested in this representation. The electors of the district, each and every one of them, have a vital interest in that question, and no one of them can be precluded, by any laches not his own, from insisting that the choice of the majority shall be regarded. No confession of the sitting member, however it might bind him personally, can place the contestant in the seat, unless he is the choice of the majority, nor deprive that majority of its rightful representation. The sitting member may well be deprived, by his neglect to answer, of reliance upon "any other grounds upon which he rests the validity of his election," for he has never given notice of any such grounds; but the committee are of opinion that the House should require proof that the sitting member has not, and that the contestant has, a majority of the legal votes before unseating the one and admitting the other, however the sitting member, may have seen fit to conduct his own case in a contest.

The notice of contest (Mis. Doc. No. 8) contains fifteen specifications, but none of these were relied on except those which alleged that there were counted by the canvassers, in making up the majority for the sitting member, "soldiers' votes" from returns so defective in form and substance as to make them wholly illegal and void; that the poll-books from the 78th and 97th regiments Ohio volunteer infantry are not certified to by any of the officers of the election, neither judges nor clerks, as required by the act of March 30, 1864, of the laws of Ohio, section 10, (page 42, printed document;) nor is there a certificate of the oath required by the 5th section of said act. (Pages 41 and 42.) For copies of these poll-books, see pages 18 and 35. The same defect (except as to the oath) is found in the poll-books of the 32d and 27th Ohio volunteer infantry, Veteran Reserve Corps, at Rock Island; 13th regiment Ohio volunteer cavalry, on pages 26, 27, 30, and 39. That the poll-book of the 15th regiment Ohio volunteer infantry does not show when, where, or by whom the election was held, the heading being left blank. (See page 19, printed document.)

That from said polls there was returned and counted for Mr. Delano the following number of votes, viz:

78th regiment, printed document, page 13, votes ...... 83

97th regiment, printed document, pages 6, 8, 13, votes ...... 132

32d regiment, printed document, pages 6, 8, 10, votes ...... 21

Veteran Reserve Corps, printed document, pages 5, 8, 12, votes ...... 7

13th regiment, printed document, pages 8, 13, votes ...... 18

27th regiment, printed document, page 10, votes ...... 17

15th regiment, printed document, pages 5, 12, votes ...... 33

In all ...... 311

For contestant from these polls, votes ...... 1

From the 97th regiment ...... 310

therefore should be deducted from the sitting member, by reason of these defective and illegal returns, leaving a majority for the contestant of 84 on the home and soldier vote.

Those portions of the law of Ohio providing for the voting of soldiers in the field are as follows:

SEC. 1. That whenever, during the existence of the present rebellion, any of the qualified voters of this State shall be in the actual military service thereof, or of the United States, and as such shall be absent from the township or ward of their residence, either within or beyond the limits of the State, on the days appointed by law for holding county, State, congressional, or presidential election within the State, such qualified voters shall be entitled at such time to exercise the right of suffrage as fully as if they were present within their respective townships, or other usual place of election. * * * *

SEC. 10. At the close of the polls, the poll-books shall be signed by the judges and attested by the clerks, the names counted, and the number set down at the foot of the poll-books, and a certificate of the oath of judges and clerks attached thereto.

SEC. 11 Duplicate tally-sheets shall be made out of the votes of each county separately. For this purpose such number of assistant clerks may be appointed by the judges as may be necessary for despatching the business, who shall take the same oath prescribed for the principal clerks. The votes of each county shall be entered on the tally-sheets thereof, in separate columns, opposite the names of the persons voted for, and the tally-sheets duly certified by the judges and attested by the principal clerks in the manner herein provided.

SEC. 12. After the poll-books are signed, the ballot-box shall be opened and the ballots taken out one at a time by one of the judges, who, whilst holding the ballot in his hand, shall announce the county for which it was cast, and the names of the several persons therein contained, together with the respective offices for which each name is designated. He shall then deliver it to the second judge, who, after examining the same, shall pass it to the third judge, who shall string it upon a thread and carefully preserve it. As the ballots are read the clerks and their assistants shall make the proper entries upon the tally-sheets of the proper county.

SEC. 13. When the examination and counting of the ballots are completed, the tally-sheets of each county shall be carefully inspected by the judges, and the number of votes given for each candidate be ascertained and set down opposite his name on the tally-sheet, as indicated in the form herein given.

SEC. 14. After the tally-sheets are certified and attested, the judges shall enclose one tally-sheet for each county in an envelope, and transmit the same, carefully sealed up, by the first mail, express, or other safe means of conveyance, to the clerk of the court of common pleas of such county, who shall file and preserve the same with the poll-books returned from the townships, wards, and election precincts within the county. They shall also enclose one of the poll-books and all the ballots in one envelope or package, and by the next mail, express, or safe means of conveyance, transmit the same, carefully sealed up, to the governor, who, indorsing thereon the date of its receipt, shall deposit the same in the office of the secretary of state, there to remain unopened until delivered to the State board of canvassers, hereafter provided for. They shall enclose the other poll-book, together with one full set of the tally-sheets, in another package or envelope, and by mail, express, or other safe means of conveyance, transmit the same, carefully sealed up, not sooner than five days after the election, to the State auditor, to be by him retained unopened until delivered to the State board of canvassers, as aforesaid.

BOARD OF CANVASSERS.

SEC. 18. The auditor of state, treasurer of state, and secretary of state shall constitute a State board of canvassers. In case any of these officers decline, or is unable to serve, or be a candidate, then the governor, upon notice to him of such declination, or inability, or candidacy, shall appoint some other suitable person to fill the vacancy so created, who, before entering upon the duties of said appointment, shall take and subscribe an oath faithfully and impartially to discharge the same.

CANVASSING RETURNS.

SEC. 20. On the thirtieth day after every such general election, or within three days thereafter, and on the twentieth after any such presidential election, the secretary of state shall, on demand, deliver to the board of canvassers all the poll-books, tally-sheets and ballots so returned and deposited in bis office, and the said board shall proceed at once and as rapidly as possible to open and canvass the same, making and certifying duplicate abstracts thereof, by counties, and sorting and arranging and stringing the ballots of each county separately, declare and certify the number of votes shown by the tally-sheets to have been cast for each candidate therein named respectively; one of which abstracts shall be deposited in the office of the governor, and the other in the office of the secretary of state, to which the said poll-books, ballots, and tally-sheets shall be returned and therein kept on file.

SEC. 21. The said poll-books, ballots, tally-sheets and abstracts in the office of the secretary of state shall be at all times subject to the inspection of any candidate or elector interested in the same, and on demand of any such candidate or elector, and the payment of one dollar, the secretary of state shall make out and certify to the clerk of the court of common pleas of the proper county a copy of any such abstract.

SEC. 22. Before issuing and delivering any commission to any person claiming to be elected to any of the offices referred to in the first section of this act, the governor shall compare the abstract of the soldiers' vote for the proper county or counties in his office, with the abstracts returned to the office of the secretary of state by the clerks for the same counties, and if it shall appear therefrom that the abstract from the counties omit therefrom such number of the soldiers’ vote as would change the result of the aggregate votes, he shall issue the commision to the persons shown by said aggregate vote to be entitled thereto.

SEC. 25. The tally-sheet of the county, State and congressional election may be in the form substantially as follows:

Tally sheet of voters, names of persons voted for, for what office, the number of votes given for each candidate, cast by the qualified electors of county, in the State of Ohio, in the military service of the United States, at an election held on the ___ Tuesday of ___ , A. D. in ___ , No. ___ , O. V. ___ , at ___ , in the county of and State of ___ , of which A. B., C. D, and E. F. were judges, and J. K. and L. M. clerks.

Total vote for each candidate.

For governor ...... A. B. ......

For representatives in Congress ...... H. R. ......

SEC. 26. The tally-sheet of presidential elections may be in form substantially as follows:

Tally-sheet of an election held on the Tuesday next after the first Monday in November, A. D. ___ , in ___, No.___ , O. K ___ , at ___ , in the county of and State of ___ , by qualified voters of the State of Ohio, showing the names of the persons voted for for electors of President and Vice-President of the United States for the State of Ohio, and the number of votes cast for each.

Number of votes cast for each candidate.

L M. ......

J. K. ......

R. M. ......

F. W. ......

SEC. 27. The certificate and attestation, to be indorsed on the tally-sheets of all such elections by the judges and clerks, shall be substantially as follows:

It is hereby certified that the within and foregoing tally-sheet is correct, and shows the number of votes cast at this election by the qualified electors of county, State of Ohio, thereat, the names of the persons for whom, and the offices for which, the same were cast, and the number given for each candidate.

A. B.,

C. D.,

E. F., Judges.

Attest: J. K.,

L. M., Clerks.

SEC. 28. When any election under this act shall be held in this State, all the provisions of the general law in relation to frauds at elections and the punishment thereof, consistent with the provisions of this act, shall apply to all elections under this act.

The references here given to the different pages of the record [Mis. Doc. 8] show the defects here alleged to have existed in the poll-books coming up with the other papers from the several camps and voting places in the field to the office of secretary of state. Copies of none of the accompanying papers were produced, and therefore the committee are to presume, in the absence of anything to the contrary, that the other papers required by law to accompany these poll-books did accompany them, and are now on file in their proper place, properly filled up and attested. A reference to the statute cited will show what these papers are which come up with the poll-book, and what use they serve. From this reference it appears that there are to be kept two poll-books, two sets of tally-sheets, the form of which is given in the law, and the ballots themselves counted and strung on a string. The tally-sheet gives the time and place of holding the election, the persons by whom it was conducted, the number of votes cast, and for whom; and the ballots show with equal certainty for whom and how many votes were cast. The poll-book should show when and by whom the election was held, and the names and number of the voters. The law requires one set of tally-sheets to be sent to each county having officers voted for; the other full set of the tally-sheets and one set of poll-books are to be sent to the State auditor; the other poll-books and the ballots are to be sent to the secretary of state. Upon the day specified in the law, the board of canvassers are required, in the manner therein specified, to take and canvass these returns, and "declare and certify the number of votes shown by the tally-sheets to have been cast for each candidate therein named respectively." From these provisions it appears that the result is to be declared from the tally-sheets alone—not from the poll-books at all.

If, therefore, the "tally-sheets" are complete, the means of ascertaining accurately the result are at hand. Indeed, the result could not be determined at all from the poll-books, for they do not disclose for whom a vote was cast. The tally-sheet is the only paper which shows that result. By counting the ballots anew that result may be verified; but the poll-book would render no such aid. That contains only the number and names of the voters in the aggregate. Now, the law requiring the canvassers to declare and certify the number of votes shown by the tally-sheets, and there being no proof or allegation that the tally-sheets were not correct in form and substance, the return made from the tally-sheets, which shows a majority for the sitting member, must prevail. It is competent to overthrow that return by proof, but not without it. Prima facie in the first instance, it remains sufficient until evidence in conflict with it shall be introduced satisfying the committee and the House that it is not true. Nothing has been introduced at all conflicting with the result declared from these tally-sheets. Defective poll-books do not conflict with the tally-sheet. They may fail from this defect to corroborate, but do not, therefore, tell a different story. But the law does not require that the tally-sheets shall be corroborated. They stand alone, unless overthrown by positive, not negative, evidence. This view of the law is entirely sustained in a recent case before the supreme court of Ohio, so nearly like this in the particulars here referred to as to be hardly distinguishable from it. It is the case of Howard vs. Shields, decided at the December term of that court, A. D. 1865, and not yet published. The committee quote so much of the opinion of the court in that case as bears upon the case under consideration. The syllabus is as follows:

"A regular and perfect tally-sheet of an election held under the soldiers' voting law is of itself prima facie evidence in such contest of the votes therein indicated."

And the court say in support of this syllabus:

"The second error assigned is that the court rejected the tally-sheets and poll-books of three several elections held in the army under the acts passed for that purpose.

"The tally-sheets were in conformity to law and unobjectionable. The defects in the poll-books accompanying them were that the number of voters is not stated at the foot, and does not appear otherwise than by counting the names, and that they were not signed by the judges and clerks. In other respects they were regular and according to law. The names of the judges and clerks are recited in the caption of the poll-books, and are signed to the affidavit, which stands immediately below the place where they should have signed the poll-books. These tally-sheets were received and counted by the county canvassers, and form part of the abstract made out by the clerk. The record shows that they were rejected by the court below, together with so much of the abstract of the county canvassers as consisted of the votes therein evidenced.

"In rejecting these papers we are satisfied the court erred. The tally-sheet alone makes a prima facie case. It is upon the tally-sheets alone that the county canvassers declare the result. (61 O. L., 92, section 17.) The poll-books are not sent to them. If the tally is good before them, it should, till impeached, be good before the court. The policy of the law seems to be, that, until the contrary is shown, the tally-sheet shall be taken and considered as a true statement of the number of legal votes cast for each candidate. Of course it is open to be impeached by the other party. But it is hardly necessary to say, that an informal or defective accompanying poll-book, in no way contradicting its statements, is not an impeachment.

"If, however, the poll-books were indispensable, was there not substantially a sufficient signing to make them valid as such? The judges and clerks signed the affidavit. We have their oaths and their signatures. Would an additional signature add anything to the verity of the paper? I think not. I think the requirement to sign at the foot, and the requirement to state the whole number of voters, a matter which can be obtained from the body of the poll-book, should be considered as merely directory, and not as absolutely essential. The original act which requires the county canvassers to make their abstract from the pollbook, and not from the tally-sheet, declares that no election shall be set aside for want of form in the poll-books, provided they contain the substance. (1 S. & C. St., 539, section 33.) If there were defects in substance, and not in form, merely, it is enough to say that the tally-sheets were perfect and unimpeached."

The committee concur in and adopt this reasoning; and inasmuch as in the case before them there is no allegation or complaint that the tally-sheets were not perfect, and there has been no attempt to impeach them, the committee do not set aside the result as shown by them. That result shows a majority for the sitting member of two hundred and thirty-nine votes.

They therefore report the following resolution:

Resolved, That the Hon. Columbus Delano is entitled to the seat occupied by him in this House as the representative from the thirteenth district of Ohio in the 39th Congress.

• Report on the Contested Election of Follett vs. Delano (introduced on 1866-05-13 00:00:00 - CREATE - e681242) [This document] [view current proposal at this moment]
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