contends that the influences brought to bear to induce the rejection of the ballots were illegal and fraudulent, and were exerted in the execution of a conspiracy; or, if not, that it was an unwarrantable interference with the judgment and action of the inspectors. This may be so; but if the ballots were illegal and such as should have been rejected, this fact is, perhaps, immaterial.

The fact that such ballots were received and counted when there was no such interference is quite significant as indicative of how they were regarded in other precincts.

WERE THE BALLOTS ILLEGAL?

It is claimed that the rejected ballots were in violation of the following statute of Alabama, as cited and had printed by contestee at the argument:

AN ACT to amend section 274 of the code of Alabama.

SECTION 1. Be it enacted by the general assembly of Alabama, That section 274 of the code of Alabama be amended so as to read as follows:

The ballot must be a plain piece of white paper, without any figures, marks, rulings, characters, or embellishments thereon, not less than two nor more than two and one-half inches wide, and not less than five nor more than seven inches long, on which must be written or printed, or partly written and partly printed, ONLY the NAMES of the PERSONS for whom the elector intends to vote, AND must DESIGNATE the OFFICE for which each person so named is intended by him to be chosen; and any ballot otherwise than described is illegal, and must be rejected. Approved February 12, 1879. The legislature of Alabama had prescribed the mode of choosing Presidential electors as follows:

On the day prescribed by this code there are to be elected by general ticket a number of electors, for President and Vice-President of the United States, equal to the number of Senators and Representatives in Congress to which this State is entitled at the time of such election.

The following statutes of Alabama may be material:

AN ACT to amend section 276 of the code of Alabama.

SECTION 1. Be it enacted by the general assembly of Alabama, That section 276 of the code of Alabama be amended to read as follows: One of the inspectors must receive the ballot folded from the elector, and the same passed to each of the other inspectors, and the ballot must then, without being opened or examined, be deposited in the proper ballot-box.

Approved February 8, 1879.

AN ACT to amend section 286 of the code of Alabama.

SECTION 1. Be it enacted by the general assembly of Alabama, That section 486 of the code of Alabama be amended so as to read as follows, viz:

§ 286 (264). Manner of counting out votes.-In counting out, the returning officer, or one of the inspectors, must take the ballots, one by one, from the box in which they have been deposited, at the same time reading aloud the names written or printed thereon, and the office for which such persons are voted for; they must separately keep a calculation of the number of votes each person receives, and for what office he receives them; and if two or more ballots are found rolled up or folded together, so as to induce the belief that the same was done with a fraudulent intent, they must be rejected, or if any ballot contain the names of more than the voter had a right to vote for, the first of such names on such ticket, to the number of persons the voter was entitled to vote for, only must be counted.

Approved February 13, 1879.

(Acts Ala., 1878-'9, p. 73.)

The ground on which the inspectors rejected the ballots and were

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advised to do so at the time was virtually abandoned at the argument, and the latter part of the statute was then relied upon as the only valid ground for the rejection.

It is claimed that the ballots had on them more than the names of the persons for whom the elector intended to vote and what was an improper designation of the office for which each person named was intended to be chosen, and operated as a distinguishing mark.

The committee are of the opinion that the ballots were wrongfully rejected, and should be counted for contestant.

The paper used for the ballot was "without any figures, marks, rulings, characters, or embellishments," and then there was attempted, in the opinion of the committee, to be printed on it only the names of the candidates and what was designed as only a designation of the offices for which each person was intended to be chosen.

It is objected that the ballot does not correctly designate the office, under the Alabama statute cited, as the electors were to be elected on a general ticket; and it is contended that what was written in designating the candidates as electors, "State at large," "district electors," "1st district," "2d district," &c., did not designate any office known to the law. There is nothing in the law to prevent the selection of the electors, two at large and one of and from each Congressional district in the State. Such was done; in fact, each party did it. It is the usual and customary way in all the States. The statutes require it in many State, to be so done. It will hardly be claimed that the office of electors was so designated as to make it uncertain what office was meant, and that this vitiated the ballot so it could not be counted for the electors on that account alone. If it did, it may not affect the candidate for Congress, as he was properly named and his office well designated.

It is sufficient that the words and figures were designed only to describe the candidates and to designate the offices, so as to express the intention of the voter. It cannot be justly charged that the designation was intended or improperly calculated to operate as a distinguishing device or mark. It is at best, as claimed, only what may be called an erroneous designation; but, if so, it cannot be said that an error of that kind was obnoxious to the statute.

The statute allows of all that may properly be used to express the intention of the voter as to candidates and the offices; and it mani. festly did not undertake to prescribe the form or mode of, or kind of type to be used in, naming the candidates or in designating the office. If there had been two persons of the same name, it would hardly be contended that they could not be distinguished by giving the residence of the candidate. Or, if there had been a John Doe and a John Doe 2d, and the latter had been a candidate, his name could be so written. Had the eighth district been printed 8th District on the ballot, there is nothing in that which would have been a violation of the statute, although the numeral 8 is a "figure.”

The two parts of the statute are distinct, and the clause, "withotu figures, marks, rulings, characters, or embellishments," has reference manifestly to the outside and to the inside of the paper, independently of the names of the candidates and the designation of the offices. Otherwise it would be impossible to write or print a ballot, as it would necessarily have "figures," "marks," and "characters" in it when written or printed.

A literal interpretation must be avoided if necessary to give effect to the general intent. The letter must give way to the spirit, and a reasonable construction adopted.

The word "figure" may mean a statue, an image, or the form of anything as well as a numeral. It had reference, perhaps, to the practice of numbering each ballot as once was usual. So, a mark" may be a punctuation mark merely; a character" may mean a letter. It is

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manifest from the collocation of words used what evil the statute was intended to reach and prevent.

It is not necessary to go into any general discussion as to this class of legislation or as to its validity. The case does not call for it..

To sustain the objection made to the ballot by contestee would shock both the moral and the legal sense of every fair-minded man.

My conclusion is that the course pursued was a perversion of the stat ute, and the objection was seized upon as a pretext and induced by outside manipulation.

In any event, it would seem that the part which relates to the candidate for Congress may be regarded as a separate ticket.

A New York statute once required State and county officers to be voted for on separate ballots. At an election held under that statute a large number of ballots were cast for "Cook, for State treasurer," which had at the bottom of them "for county judge, Ezra Graves." These ballots were alleged to be illegal and the election contested. The supreme court in passing on the question said:

I have not been able, after the most deliberate consideration of the objection raised, to perceive that there is anything in it. The ballot for every office on a ticket containing the names of more than one officer must be regarded as a separate ballot. (People vs. Cook, 14 Barbour, 259, 299.)

The

The case was carried to the court of appeals and there affirmed. court said: "The Speiman ballot, headed 'State,' had at the bottom for county judge, Ezra Graves.' Whatever effect this had on the candidate for county judge, it had none on the candidates on the State ticket." (People vs. Cook, 8 N. Y., 4 Selden, 68, 85.)

We refer incidentally to certain claims relating to certain precincts in

MADISON COUNTY.

The evidence tends strongly to show fraud and ballot-box stuffing in this precinct. It will warrant the rejection of the count and returns made by the inspectors. Contestee is returned as having received 142 ballots, and contestant 57. The count and return are impeached for fraud. Contestant has called 128 voters who swear that they voted for him. The other evidence tends to prove 155. (Record, pp. 208, 216, 206, 231, 174, 196, 197, 557, 190, 191, 192, 158.)

Rejecting the returns for fraud, and counting 128 votes proved to have been cast for contestant, according to the settled rule, will give him so many more votes. But as this is not necessary in view of the case in other respects, I do not go into the evidence more at length as to this precinct.

As to Meridianville (box No. 2) and Cave Spring, the evidence tends to show that contestant is entitled to 65 votes more than were counted and returned for him for these precincts, and that at Flint precinct he lost 17 ballots net by the vote not being properly counted and returned. But it is not deemed necessary to state the evidence and proofs, as in the view taken of the case by the committee this will not affect the result.

I do not sustain the claim of contestee as to Courtland precinct, although there is some apparent irregularity in the action of the inspectors, &c., in their conduct as to the box.

CONTESTEE'S DEFENSE OR COUNTER-CLAIM.

The contestee attempts to meet the contention of contestant, if proved, by the claim that illegal votes were cast for contestant by convicts, minors, non-residents, and non-registered persons.

The claim as to minors and convicts appears by the following tables, and the evidence is referred to in the same:

The claim as to non-residents hardly needs more particular reference. It is not sustained by proof.

Not finding either of the claims to be maintained by competent and credible evidence, I disallow them.

REGISTRATION.

Contestee does not set up a want of legal registration as vitiating the election in any precinct, but alleges that persons not registered had no right to vote, and that all votes cast by such were illegal, and must now be rejected. His claim and references for proofs appear in the following table, as presented by him in argument:

Contestee's evidence does not show for whom many, if any, of the persons claimed to be non-registered voted. He has not called the persons themselves, but attempted, with little success, to prove it by third parties. The instances proved by any competent or sufficient evidence are very few and need not be stated, as they would not change the result on any hypothesis presented or contemplated.

If found that enough illegal votes were cast to change the result, and it not appearing for whom they voted, the question would be whether the election should be declared void, or the vote distributed among the candidates, under the rule laid down in McCrary, § 298.

Contestee, for aught that appears, could have taken the evidence of the witnesses themselves to establish their identity as the persons whose names appear on the poll-lists, and to prove for whom they voted. This he has not done, and no reason why not is shown.

Of course I do not hold as matter of law that such is the only mode of proof allowable, while generally it is quite satisfactory, as the voter usually best knows, and his evidence is direct.

The law of Alabama as to registration involved needs first to be stated, so far as deemed material.

By article 8 of the constitution, which will be found at page 142 of the Code of Alabama, the qualifications of the voter are prescribed as being a residence of one year in the State, of three months in the county, and thirty days in the precinct.

2. By section 5 of the same article it is provided in these words: