Dallas, Lowndes, Hale, Wilcox, and Perry make up the fourth Congressional district of Alabama; that the electors of each of said counties are chiefly of the African race, and, as would seem, cast Republican ballots for their party candidates to the extent of from 95 to 974 per cent. of their vote when permitted to do so; that the electors in each of said counties are largely Republican in politics, and in the district, the five counties combined, have a joint Republican majority of at least 15,000 votes; that the white electors in each county of the district chiefly cast Democratic ballots for their party candidates. (Record, Rapier's ev., pp. 151–155; McDuffie, 211–216; Record, pp. 169, 170.)

The evidence given upon some of the general facts stated above is a matter of opinion, it is true, but the same comes from men apparently well able to judge, and is not controverted by other evidence.

It has been stated, and is notorious as matter of history, as claimed by contestant, that when the Democratic party came into power in 1874 the work of reorganizing the Congressional districts was speedily commenced, the object being to make all the districts Democratic. After the most laborious and careful investigation of this matter, it was found impossible to do so, and it was then considered best to put into one district all the large Republican counties adjoining each other, to be called the fourth Congressional district of Alabama. The acknowledged Republican majority in Dallas County was, at the State election of 1874, 4,957; in Hale County, 2,304; in Lowndes County, 2,953; in Wilcox County, 2,126; in Perry County, 2,606; making a clear Republican majority in the district of 14,946 votes. At the Presidental election in 1876 Hayes, Republican, received a majority over Tilden, Democrat, of 9,446 votes; and in the same year, in the State election, Woodruff, Independent, receiving Republican support, had a majority over Houston, Democrat, for governor, of 9,115 votes. (Record, p. 170.)

In the Congressional election of the same year Rapier, running as the regular Republican nominee, and Haralson, running as a bolting candidate (both persons of the negro race), the joint majority over Shelley, Democrat, was 6,256 votes. The census returns of 1880 show that there are now in the counties composing the district 135,881 persons of the negro race, and 32,855 white persons, disclosing a very large increase of the negro race, so that on a calculation it may be assumed that there is, in fact, now a majority of 18,000 negro Republican voters over white Democratic voters in the district. (Record, pp. 169, 170, 178.)

Under the election law of Alabama it is made the duty of the judge of the probate court, the clerk of the circuit court, and the sheriff of each county, thirty days previous to any election, to designate three inspectors to hold an election in each voting precinct, two of which shall be members of opposing political parties. The sheriff is made county returning officer, and it is made his duty to send to each of the precincts in the county ballot-boxes for the purposes of the election, and he is the peaceofficer who is to be present, in person or by deputy, at each election precinct. (Ala. Code, § 258, art. 2; sec. 259.)

It appears that the judge of the probate court, the clerk of the circuit court, and the sheriff, whose duty it was to appoint precinct inspectors of election, in all of said counties, were Democrats in politics and supporters of the contestee; and the same officers are by law made the county supervising board to canvass the returns made by the precinct inspectors of election appointed by themselves.

DALLAS COUNTY.

It appears that previous to the election the officers whose duty it was to appoint precinct inspectors in Dallas County, one of whom should be of the opposing political party, were notified in writing and. requested to obey the election law of Alabama in this respect, and give an opportunity to suggest some suitable men to act for the Republican party, but they refused to do so. One of them (the sheriff) stated that if he received forty such notices he would pay no attention to them." (Depositions of Roundtree and Judge Wood.)

It appears that in seven precincts of Dallas County, to wit, Pine Flat, River, Mitchell's, Chillatchie, Cahaba, Martin's, and Lexington, about which testimony has been taken, and for each of them three inspectors were appointed, two of whom were white Democrats and one a negro, who was supposed to be a Republican on account of his color that of the two white Democratic inspectors for each of the seven precincts it appears that they were not present on the morning of the election to open the polls, and the white Democratic inspectors, appointed by county authority, failing to be present, the colored electors present, under the election statute of Alabama, opened the polls and held elections in said precincts; that the returns made of the result to the board of county supervisors in Calaba, Pine Flat, Mitchell's, River, Lexington, and Martin's were not in statutory form, and were for informality rejected, and the vote not counted by the board of county supervisors, and that the sheriff, the returning officer, refused to receive the ballotbox from Chillatchie precinct because it was a cigar-box, and it was not before the supervising board. (Record, p. 133.)

It appears that no box was furnished as required by law. (Rec., p. 141.) The sheriff swears that he sent boxes. If he did the Democratic inspectors had them probably and did not produce them, as they did

not act.

The returns being informal, irregular, and insufficient, and therefore defective, went for nothing, and the votes cast not being counted for the contestant or the contestee, and the ballot-box from Chillatchie not being received, evidence is resorted to to prove the actual vote, under the well recognized and settled rule stated by McCrary in his work on Contested Election Cases (sec. 302, page 268 and 9; Littlefield vs. Green 1 Chicago Legal News, 230); Brightley's Election Cases, 493; McKenzie vs. Braxton, Forty-second Congress; Giddings vs. Clark, Fortysecond Congress. (See sec. 304, p. 270, and sec. 81., p. 104, McCrary on Contested Election Cases.) In Alabama, where this contested-election case arose, the supreme court of that State lay down the law of contested elections as follows:

It is the election that entitles the party to office, and if one is legally elected by receiving a majority of legal votes, his right is not impaired by any omission or negligence of the managers subsequent to the election. (State ex rel. Spence vs. The Judge of the Ninth Judicial Circuit, 13 Ala. Rep., 805.)

Nor will a mistake by the managers of the election in counting the votes and declaring the result vitiate the election. Such a mistake may and should be corrected; the person receiving the highest number of votes becomes entitled to the office. (State ex rel. Thomas vs. Judge of the Circuit Court, 9th Ala. Rep., 338.)

The returns from Pine Flat, River, Mitchell's, Cahaba, Martin's, and Lexington precincts of Dallas County being declared irregular and informal, as not coming up to statutory requirements, were not counted by the board of county supervisors for either candidate for Congress, and the ballot box from Chillatchie precinct being refused by the sheriff was not before the board of county supervisors and was not counted by them; therefore, in such a case each candidate was required to prove the actual number of ballots cast for him. The contestant introduces proof

as to the number of ballots cast for him at each of the precincts of Pine Flat, River, Cahaba, Mitchell's, Chillatchie, Martin's, and Lexington; the contestee introduces no proof whatever to rebut the proof made by the contestant in this respect, nor does he show by any proof that he had any ballots cast for him for Congress, except from the evidence taken by contestant.

The proof does not show that the sheriff was present in person or by deputy at any of the seven precincts referred to, and it is shown that every white Democratic inspector appointed by the board of county supervisors failed to appear and open the polls and hold an election, and neither of the Democratic United States supervisors appointed by the United States circuit court, on the petition of ten Democratic citizens of the county, appeared at the said election precincts, except the Democratic United States supervisor at Pine Flat precinct, and his report to the chief supervisor of elections agreed with the report of the Republican United States supervisor.

It appears that the county board of supervisors of Dallas County, the largest Republican county in the district, appointed two intelligent Democrats, supporters of the contestee, and although requested in writing refused to appoint one intelligent member of the opposing political party, but did appoint one ignorant negro supposed to be a Republican on account of his color, to serve as precinct inspectors, and that the two white inspectors did not appear at the election place to open polls and hold an election, leaving the ignorant negro inspector to organize a board of inspectors from the negro electors present; and from the fact that the polls were opened and elections were held by the uneducated negro qualified electors of said precincts, and from the further fact that the statement of the vote cast, and the returns thereof, were held to be irregular, informal, and insufficient, and therefore not considered nor counted by the board of supervisors, because they were not technically in accordance with the election law, we are reluctantly impelled to the conclusion, particularly as each of said precincts is largely Republican in politics, that there must have existed a well planned and previously arranged conspiracy on the part of the Democratic election managers, by the absence of the Democratic precinct inspectors at the election place on the day of election, to have no polls opened, and if opened under the election statute by the uneducated negro electors, then they hoped the statutory statement of the election returned to the board of supervisors would be defective in form, and in either event there would be a pretext or sufficient excuse for not considering the vote; but such a scheme, if formed, cannot be allowed to be successful, as the committee have no difficulty on the proof in finding that an election was held according to law and what the vote actually was. (Code of Alabama, section 262.)

!

I therefore find, as matter of fact, that the ballots legally cast, but not counted for contestant and contestee in the said seven precinct of Dallas County, and which should, as matter of law, be counted for them in this contest, are:

Pine Flat precinct.
River precinct.

Cahaba precinct..

Mitchell's precinct.

Chillatchie precinct.

Martin's precinct..
Lexington precinct.

Total

For contestant. For contestee

For contestant

For contestee....

RECAPITULATION.

2, 158 54

LOWNDES COUNTY.

It appears from the proof in reference to the precincts of Pintlala, Whitehall, Hopewell, and Benton, in Lowndes County, that the Democratic inspectors, appointed by the board of county supervisors, failed to appear and hold the elections, except at Whitehall precinct. At Hopewell the ballots cast for each candidate were not counted by the board of county supervisors. The contestant proves that he had cast for him 116 ballots, and that contestee had cast for him 17 ballots. The returns of this precinct were excluded for irregularity and informality, and come under the ruling heretofore made, that ballots legally cast should be counted as cast notwithstanding the action of the preeinet inspectors.

(See record. Testimony of Willis Knight, pp. 195-198; Allen Hinson, pp. 198, 199; Exhibit, p. 334; J. V. McDuffie, pp. 211-216. Contestee's witnesses: S. Jones, pp. 546, 547; M. A. Graves, pp. 549–551; F. M. Sullivan, p. 551.)

The evidence as to this precinct is conflicting. Only two inspectors acted, as no others would serve. The Democratic inspectors would not serve, although present. Their evidence is to be taken with allow

ance.

It appears that at the election in Benton, in the same county, the appointed Democratic inspectors present on the morning of the elec tion refused to open the polls and hold an election, stating it was too late to open the polls. The hour of nine o'clock having arrived, the Republican colored electors present, seeing that no election was to be beid, organized, under the election law of Alabama, and held the election, which resulted in having cast for the contestant 156 ballots. The appointed Democratic inspectors, who said it was too late, and said there would be "no election that day for Garfield or Hancock," opened a second polling place and held an election, where 51 ballots were cast for contestee. The box from this second polling place was received by the county returning officer (the sheriff), and the box containing the 156 ballots cast for contestant was rejected by the sheriff and not counted by the board of county supervisors. The contents of the ballotbox are exhibited in the record. We hold, as matter of law, that the sheriff should have received the ballot-box and permitted it to go before the board of county supervisors; and further, as matter of law, that after the first election polls were opened the second polls were not authorized, and should not be recognized, and therefore the 156 ballots cast at the first polling place should be counted for contestant. The United States supervisors cannot be present where precincts are multithe plied; it would be a dangerous power, and may be used for the purposes of corruption. (McCrary on Election Contests, sec. 108, pp. 120, 121; Sloan vs. Rawles, Forty-second Congress; see record, testimony of R. S. Abbott, pp. 185-188; Exhibit, pp. 329, 330; A. J. Edwards, pp. 188-193; Exhibit, p. 174; George Torrance, pp. 193-195; J. V. McDuf fie, pp. 211-216; contestee's witness, M. A. Graves, pp. 549, 550; supervisor's return, 329.)

ts

At the election in Whitehall precinct, in the county of Lowndes, the uncontradicted testimony shows that there were cast for contestant 276 ballots, and for the contestee 14 ballots, and it also appears that the pre

cinct returning officer took the ballot box used for the purposes of the election to the sheriff, the county returning officer, who, being informed of the vote cast for each candidate at Whitehall precinct election, refused to receive or receipt for the box, because it was a pipe-box that had been used for the purposes of the election. This county returning officer is a Democrat in politics, and an ardent supporter of the contestee, and after refusing to receive or receipt for the box he desired the precinct returning officer to put the box on a desk in his office, which was done. It is in proof that the ballot-box, when delivered to the precinct returning officer, had in it, properly secured, the whole number of ballots cast, 276 of which were cast for contestant and 14 were cast for contestee, and the list of voters who cast ballots at the election, which is exhibited in the record. When this ballot-box was before the board of county supervisors its appearance showed that it had been opened from the bottom, and by this means tuffed with fraudulent ballots instead of the true ballots cast by the electors. All of contestant's ballots found in the box when opened, to the number of 54, had a hole in the middle of each as if having been strung upon a string, and were folded, and looked as if they had been cast, and the other ballots found in the box looked as if they had not been cast, and in the shape they were could not have been cast at the election by being put through the hole in the lid of the box; the ballots were not counted by the board of county supervisors.

We can reach no other conclusion from the facts and circumstances than that the ballot-box was fraudulently tampered with whilst in the sheriff's office, and before it was brought before the board of county supervisors. We hold that the pipe-box used for the purposes of the election was not objectionable, and should have been receipted for, and, as a matter of law, we hold that the contestant should have counted for him the 276 ballots cast, and that the contestee should have counted the 14 ballots cast for him. (See record. Testimony of Philip White, pp. 176-178; Exhibit, p. 346; Robert Payne, pp. 179–181; Major White, pp. 181-185; Willis Brady, pp. 199, 200; J. V. McDuffie, pp. 211-216; contestee's witness, M. A. Graves, pp. 549, 550.)

At the election held at Pintlala precinct, in the county of Lowndes, it appears from the proof that after the electors had cast their ballots the closing hour had arrived, and the counting of the ballots cast should have commenced. A voter of the precinct appointed to act as one of the three inspectors previous to the election, an active supporter of the contestee, but who refused to act on the morning of the election, entered the polling room, having with him a sachel with a partition in the middle, in one side of which he had a cigar-box stuffed with false ballots, and took from the table the ballot-box, into which the voters during the election had cast their ballots, and placed it in the empty side of the sachel. In a few minutes a confederate, in a buggy, called him. He took from the sachel the fraudulent stuffed box and placed it upon the table, closed the sachel containing the true ballot-box and ballots, and jumped into the buggy and left with his confederate. The false ballotbox reached the board of county supervisors certified to by the election officers as a false and not the true box. From the proof made it is shown that at the time of the robbery of the true box there were in it 320 bal· lots cast for contestant, and 40 ballots cast for contestee.

We hold that all the facts and circumstances show a bold device and conspiracy to destroy the result of the election at Pintlala precinct, and, as a matter of law, that the true vote for contestant and contestee should be counted for each. (Chapman vs. Ferguson, 1 Bartlett, 267.)