VIEWS OF THE MINORITY.

The undersigned, a minority of the Committee of Elections, being unable to concur in the report of a majority of said committee, made in the above entitled case, respectfully submit the following report:

That the right to a seat in this case should be settled either upon strictly legal principles, holding each party to the law, or upon the merits, without regard to mere technicalities, and the seat awarded to the person really shown to have received the greatest number of legal votes, would seem to be a self-evident proposition. Yet the majority of the committee in their report do neither of these things. They confessedly depart from the requirements of the law in behalf of the contestant, while they hold the sitting delegate strictly to the law. The House at an early day decided “that William Jayne, having presented a certificate, in due form of law, of his election as delegate from the Territory of Dakota to the 38th Congress, is entitled to take the oath of office and occupy a seat,” &c. This decision of the House, made the 15th day of January, 1864, settled the right of the sitting member to the seat upon the strictly legal formal returns, and having been admitted, he could only be deprived of the seat by the showing of the contestant that the formal returns were incorrect. This he has attempted to do. At the outset the question arises, is there any law prescribing the mode of obtaining evidence in the case of contested elections of delegates from Territories? Manifestly not, if the act of February 19, 1851, is to receive a strict construction, for it applies only in terms to the “contest of an election of any member of the House of Representatives.” That a Territorial delegate has no vote, and is not, strictly speaking, a member of the House of Representatives, is known to all. If, however, the act of February 19, 1851, is by analogy to be held as governing in the contest of a seat by a territorial delegate, the provisions must be complied with. That they were not complied with by the contestant in this case is admitted by the majority report, which states, “that while the statute requires the contestant to serve his notice of contest upon the sitting delegate within thirty days after the result of the election has been declared by the board of canvassers, the notice in this case was served before the result was declared.” The report, however, proceeds to state that “the committee are of opinion that this was a defect which the sitting delegate could waive, and that by answering after the result had been proclaimed,” &c., “he had waived the right,” &c. Without controverting this position it is difficult to perceive why, if the contestant is to be permitted to avail himself of a notice not strictly in accordance with the statute, the sitting delegate should not have the like liberality extended to him in relation to a deposition taken on notice to the contestant, when the contestant was present listening to the examination and consenting to an adjournment for the purpose of completing it. There is, however, a more serious objection to all the contestant’s testimony. It is all ex parte, and taken before justices of the peace. By the 3d section of the act of Congress, the party wishing to take testimony may apply to “any judge of any court of the United States, or to any chancellor, judge, or justice of a court of record of any State, or to any mayor, recorder, or intendent of any town or city in which said officers shall reside, within the congressional district;” and by a subsequent section, the 23d, it is provided that in case no such magistrate as is by the 3d section authorized to take depositions shall reside in the congressional district, it shall be lawful to apply to two justices of the peace. In this instance the contestant gave notice of his intention to take testimony before the chief justice of the Territory, but subsequently went before two justices of the peace. The sitting delegate protested against the right of the justices of the peace to take the testimony, and never appeared before them. The contestant seeks to show, by testimony, that Judge Bliss, the chief justice of the Territory, resided at Sioux City, Iowa, and not within the Territory of Dakota; but the notice which he gave to take the testimony states: “It is my intention to examine witnesses before Hon. P. Bliss, chief justice of the Dakota Territory, the said chief justice being a resident within and for the congressional district Territory of Dakota,” thereby admitting his presence and competency to act. A copy of said notice is hereto annexed. Besides, the papers show that Judge Bliss, at the instance of contestant, issued subpoenas for witnesses, was present at the time the testimony was about to be taken, and proposed in writing to the contestant to enter upon the examination. The contestant, however, preferred, contrary to law, to proceed before two justices of the peace. That Judge Bliss was in contemplation of law a resident of the Territory is manifest, from the fact that he had been in the Territory holding the courts, and was then present. The fact that his family had not come to the Territory could not make him a non-resident. The organic act required his residence in the Territory, and in accordance with it he had gone to the Territory and held his courts. It was his residence at the very time, in fact, as well as law. Will it be said that the judges of Dakota, when in the Territory, were not sufficiently domiciled there to take depositions, although they might hold courts? If Judge Bliss was not competent to take the depositions in this case by reason of his non-residence, clearly he was not competent to hold court, and all the proceedings of himself and associated judges are coram non judice and void. Will the House make a decision fraught with such consequences? If not, then clearly, there being a United States judge in the Territory competent to take the testimony, there was no authority to take it before two justices of the peace.

Again, even if Judge Bliss was disqualified, still, justices of the peace would not be authorized to act if any of the other officers named in section 3 of the act of Congress, were resident in the Territory, and the papers wholly fail to show that there may not have been many such officers. All the contestant attempts to show is that there were no other officers resident of Yankton county; non constat there may have been, as there were many such in other counties.

In the double view, therefore, that Chief Justice Bliss was present, ready and competent to act, and that there may have been and were other officers in the Territory qualified to act, the taking of the testimony by the contestant before justices of the peace was not warranted by law; and if the law is to be observed, all the testimony of the contestant must be excluded.

The return from Kitson county, known as the Pembina vote, and situated wholly within the Indian county, is not a copy of “the abstract of votes given in his county,” made by the clerk, with the assistance of two justices of the peace, as required by the Territorial laws, ch. 32, secs. 28, 31 and 33, but a mere certificate of the clerk; and, moreover, it was not received till after the time limited by law when returns could be received, and the canvass had been completed, and, therefore, if the law is to be observed, could not be received; and this would leave the sitting delegate entitled to his seat as proclaimed by the canvassers. But the majority of the committee admit the Pembina vote, notwithstanding it was not in accordance with law nor received within the time limited by law, and refuse to admit the testimony taken on notice and when the contestant was present, showing the Pembina returns to be fraudulent, because the sitting delegate did not take the testimony before the proper officer and within the proper time. Time is held to be immaterial by the majority, for the purpose of admitting the Pembina returns, and material for the purpose of excluding the testimony to show those returns fraudulent. So the letter of the law is departed from to bring the case of a delegate within the act of Congress, to make valid the notice of contest given before the canvass was declared, to receive the testimony taken without authority before justices of the peace, and the Pembina vote not returned within the time or according to law—all these departures being for the benefit of the contestant; but when a departure from the strict letter of the law would have admitted the testimony impeaching the Pembina vote, and been for the benefit of the sitting delegate, the letter is insisted upon and the testimony excluded. On what principle can such inconsistency be sanctioned?

Without going over the voluminous ex parte testimony taken by the contestant, it fails to show, according to the majority report, that Todd received more legal votes than Jayne, exclusive of the Kitson county, or Pembina, return. Leaving out that vote which was returned—125 for Todd, and 19 for Jayne—and making all the corrections allowed by the majority of the committee, Jayne is still elected by seven majority. The right to the seat then depends, according to the majority report, on the Pembina vote. That vote is admitted not to have been returned within the time required by law, nor is there any such return as the law requires. Shall it then be received? If the House decide that the arrival of these returns after the canvass was completed, and the time for their reception had by law expired, and when they are not certified as the law requires, is not a sufficient reason for their rejection, will it not also, upon the same principles of equity and justice, decide that the fact that the testimony taken by the sitting delegate to show that vote fraudulent and fictitious at a time and before a different judge from the one specified in the law, is not a sufficient reason for its rejection? To be consistent and do justice, such must be the decision. This is a question affecting the rights of the people of Dakota, as well as the persons claiming to represent her, and they have a right to insist that returns not made in accordance with their laws should be rejected, or, if received, that the testimony showing their invalidity should be received also.

The certificate from Kitson county shows:

For Todd……125 votes.

For Jayne……19 “

Total…………144 “

What is the evidence in regard to this vote?

First, the census, taken about a year previous, showing that in the whole Red River county there were of white males but 51, and of these over the age of twenty-one but 42. Then the testimony of Joseph L. Buckman, taken March 11, 1863, before Hon. W. F. Purcell, judge of the orphans’ court in the District of Columbia, on notice duly given, both parties being present at the examination, the contestant, however, under protest, and objecting to the jurisdiction of Judge Purcell to take the testimony. This testimony (see pages 154, 155, and 156) shows that there were but six white persons, native-born and naturalized, present at the place of voting in Kitson county on election day, who were entitled to vote at the precinct on the day of election. The witness had been an Indian trader and postmaster at Pembina for several years; was well acquainted, and swears that he does not think more than ten or twelve white persons were present on the day of election, and of those there were but three who were native-born citizens of the United States, and three others who claimed to be naturalized, and none who had made declaration of their intention to become citizens. He says forty-six or forty-eight votes were cast for delegate at the election; that the excess over the number of legal voters present was cast by illegal voters, mostly half-breeds, and that there was added to the votes cast, after the close of the polls, a little over a hundred votes; and also that Charles Morneau, who was clerk of the board of county commissioners, and sent his own certificate, and not a copy of the abstract, as required by law, to the secretary of state, was present at this election. The testimony of Buckman is unimpeached, and is corroborated by the fact of the census returns showing only forty-two white males over twenty-one years of age in the whole Red River country a short time previous; also by the recent action of the Territorial legislature of Dakota, abolishing the district as a voting precinct, on account of its being Indian country and almost wholly uninhabited by white persons, who alone, if possessed of the other qualifications, are by law entitled to the right of suffrage. Can it be that the House, adhering to the letter of the law as to the time and officer before whom testimony shall be taken, when the act itself is only declaratory, and does not forbid the taking of testimony at another time and before another officer, will exclude testimony which exposes this fraudulent and fictitious Pembina vote, and then admit the contestant to take his seat under it? Has not every member at all acquainted with the Red River country a general knowledge that there could be no such vote as has been certified to? Without this fraudulent vote the contestant has no claim to the seat, as the report of the majority admits, and not only admits this, but shows by the computation of the majority, as given therein, that the sitting member is entitled to retain his seat.

G. W. SCOFIELD.

CHARLES UPSON

________________

Copy of notice referred to in the foregoing.

In the matter of the contested election for the position of delegate from Dakota Territory, in the House of Representatives of the United States for the 38th Congress.

YANKTON, D. T., December 25, 1862.

SIR: You are hereby notified that, in pursuance of an act of Congress entitled “An act to prescribe the mode of obtaining evidence in cases of contested election,” passed the 19th day of February, 1851, it is my intention to examine witnesses before honorable P. Bliss, chief justice of Dakota Territory, the said chief justice being a resident within and for the congressional district, Territory of Dakota, and duly authorized by said act to examine such witnesses, or before some other person duly qualified to take such testimony, at the office of William E. Gleeson, esq., in the town of Yankton, Yankton county, Dakota Territory, on Tuesday, the sixth day of January, A. D. 1863, at ten o’clock a. m. of said day, and each successive day thereafter, except Sundays, at the same time and place till the testimony is taken and the witnesses are examined, a list of whom, together with their respective places of residence, is hereto annexed, of all which you will please take notice.

A copy of the subpoena issued by the honorable P. Bliss, to be served on the witnesses to be examined, is hereto annexed.

J. B. S. TODD,

By his agents and attorneys, John Currier, William E. Gleeson, and Jesse Wherry.

Hon. WILLIAM JAYNE.

___________________

Sections of election law referred to.

Section 31, page 281, laws of Dakota, 1862.—On the twentieth day after the close of any election, or sooner if all the returns be received, the clerk of the board of county commissioners, taking to his assistance two justices of the peace of the county, shall proceed to open said returns and make abstracts of the votes for delegate to Congress shall be on one sheet, the abstract of votes for members of the legislative assembly shall be on sheet, &c.

Section 33, page 282.—The clerk of the board of commissioners, immediately after making the abstracts of the votes given in his county, shall make a copy of each said abstracts and transmit it by mail to the secretary of the Territory at the seat of government; and it shall be the duty of the secretary of the Territory, with the chief justice and governor, or a majority of them, to proceed within fifty days after the election, and sooner if all the returns be received, to canvass the votes given for delegate to Congress.

• Minority Report on the Dakota Contested Election (introduced on 1864-05-31 12:00:00 - CREATE - e740711) [This document] [view current proposal at this moment]
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