REPORT.

The Committee of Elections, to whom were referred the credentials of William Jayne and J. B. S. Todd, both claiming to have been duly elected delegate to this Congress from the territory of Dakota, and each claiming the right to be qualified and occupy the seat pending the contest, have considered the latter claim, and submit the following report:

The credentials of each, presented to the House upon the first day of the session, and upon which each claimed that the oath of office should be administered to him, and he be permitted to occupy the seat, are appended to this report. Those of Mr. Jayne consist of—

First. A proclamation by John Hutchinson, “secretary and acting governor of the Territory of Dakota,” dated November 29, 1862, bearing the seal of the Territory, “that at a general election held on the first day of September, 1862, in said Territory, William Jayne received a majority of the votes cast for delegate to Congress, and was, therefore, duly elected delegate to the thirty-eighth Congress of the United States.”

Second. A Certificate, signed by himself, “William Jayne, governor of Dakota Territory,” dated January 5, 1863, and sealed with the seal of the Territory, certifying the same facts set out in the proclamation of date November 29, 1862, signed by John Hutchinson, secretary and acting governor.

Mr. Jayne was absent from the Territory at the time the proclamation was issued, but returned before the issuing of the certificate.

The credentials of Mr. Todd are—

First. A certificate, signed by “John Hutchinson, secretary and acting governor,” dated August 15, 1863, and sealed with the seal of the Territory, “that according to the canvass made by the territorial canvassers, on the 24th day of October, 1862, of the votes for delegate to Congress, William Jayne had a majority over J. B. S. Todd of sixteen votes; and that subsequent to said canvass, returns were made to this office, in due form, of votes from Pembina district, as follows: For J. B. L. Todd, one hundred and twenty-five; for William Jayne, nineteen; which said votes were not included in the canvass made by the territorial canvassers, but are not on file in this office.”

Second. Another certificate, signed “John Hutchinson, secretary,” dated September 26, 1863, with the seal affixed, certifying “that I have not issued a certificate of election to any person as delegate to Congress from this Territory; that there is no record in this office of any having been issued by any person, and that I have no official knowledge of the territorial seal having been affixed to any such certificate.”

In considering the preliminary question, which of these gentlemen is entitled to occupy the seat as delegate from Dakota, pending the settlement of the main question, which of them was duly elected thereto, the committee have refrained altogether from any investigation of the merits of the latter, and confined themselves to the credentials each has offered as the prima facie evidence of his election, entitling him, according to law and usage, to be received as the sitting delegate, until investigation of the number of legal votes actually cast shall disclose a better right of another thereto.

The election of delegate was held, according to law, on the first day of September, 1862. The laws of Dakota make it the duty of the secretary of the Territory, if the returns from any county have not been received at his office within forty days after an election, to send a special messenger therefor.—[Ch. 32, sec. 34, 1862.] No messenger was sent to any county in this case. It is made the duty of the secretary, the chief justice, and the governor, “to proceed within fifty days after the election, and sooner, if all the votes be received, to canvass the votes given for delegate to Congress, and other territorial officers, and the governor shall grant a certificate of election to the person having the highest number of votes, and shall also issue a proclamation declaring the election of such person. If either of the persons mentioned in this section as canvassers be a candidate for delegate to Congress, such person shall take no part in the canvass of said votes.” By the organic act, in the absence of the governor from the Territory, the secretary shall be acting governor.

On the 24th of October, 1862, the fifty days for the returns to be made having expired, the chief justice and secretary of the Territory, in the absence of the governor, Mr. Jayne, who was one of the candidates, proceeded to canvass the votes for the delegate, and on the 29th of October the secretary of the Territory, as acting governor, the governor still being absent from the Territory, made proclamation of the result, viz: that “William Jayne received a majority of the votes cast for delegate to the 38th Congress of the United States.” A certified copy of this proclamation, under the hand of said secretary, acting governor, sealed with the seal of the Territory, Mr. Jayne presents as his credentials.

The law of the Territory also requires a certificate of the same facts to be issued by the governor to the person so declared elected. Mr. Jayne having returned to the territory before this certificate was issued, all authority of the secretary, as governor, ceased at once, and if the certificate was to be issued at all, it must be issued by Mr. Jayne himself, he alone being governor. He, accordingly, on the 5th of January, 1863, certified to the facts found by the canvassers, and proclaimed by the acting governor in his absence. This certificate is also presented here, along with the proclamation of the acting governor.

Here all official connexion of this board of canvassers, or either of them, with this matter ceased. Their functions were at an end. They had performed the duty required of them by law; proclaimed and certified the result precisely as the law required it, and they had no other duty in the premises to perform. The law authorized them to do nothing more; whatever else either, or all of them, might do, or attempt to do afterwards, touching this matter, would be without authority of law, and would stand precisely as if done by a stranger.

Yet, nine months after the canvass had been made and the result proclaimed, the secretary, John Hutchinson, gives to Mr. Todd a certificate stating that Jayne had but 16 majority when the canvass was made, and that after the canvass was made, returns of 125 votes for Todd and 19 votes for Jayne were received at his office from Pembina. This certificate is presented by Mr. Todd as his credentials. It was in the performance of no duty required of the secretary by law, that this statement was made by him; and it has no more force as a certificate than if made by any other man in the Territory or by a stranger. The law has left him nothing to do, and therefore what he did was in law nothing. There was no law for a new canvass or a new count by anybody in the Territory, much less by one alone of three canvassers named by law, without the aid of either of his associates. But his certificate shows upon the face of it that the returns from Pembina could not be counted by the canvassers, for it appears by the paper itself that they were not received until after the fifty days allowed by law for making the returns had passed. The canvassers, therefore, could not take them into consideration at all. Whether they shall be received and allowed in the final count here will depend upon the evidence of their genuineness as developed upon the final hearing. The committee have made, upon the preliminary question, no examination of the genuineness of that vote, upon which there appears to be much controversy, but reserves all opinion upon that point until the hearing upon the merits of the contest has been concluded.

On the 26th of September following, this same secretary, John Hutchinson, gives Mr. Todd another certificate, which he presents as a part of his credentials; that he has himself given no one a certificate of this election, and had affixed the seal of the territory to none. As the law does not authorize him to do either, it is difficult to see what legal effect can be given to such a paper.

In conclusion, the committee find that the credentials of Mr. Jayne are in strict conformity to the laws of the United States and the Territory declaring him, under the seal of the Territory and the signature of both the acting and actual governor of the Territory, to be duly elected delegate to the 38th Congress, while Mr. Todd presents no such paper, and none declaring him elected at all, but does show from the very papers he does present, that by no canvass of the votes returned, according to the laws of the Territory, could he be declared elected.

Since this new case was heard by the committee, the House has referred to them a new certificate given to Mr. Jayne by the present governor of that Territory, under the seal and countersigned by the same secretary, John Hutchinson, bearing date December 25, 1863. this certificate is appended to this report. If any power was left in these officers to make any new papers of this kind, after having once determined the result, this certificate would seem to settle the preliminary question.

The committee therefore recommend the adoption of the following resolution:

Resolved, 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 in this house as such delegate, without prejudice to the rights of J. B. S. Todd claiming to be duly elected thereto, to prosecute his contest therefor, according to the rules and usages of this house.

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PROCLAMATION,

To the people of Dakota Territory.

I, John Hutchinson, secretary and acting governor of the Territory of Dakota, do hereby proclaim:

That at a general election held on the 1st day of September, 1862, in said Territory, William Jayne received a majority of the votes cast for delegate to Congress, and was therefore duly elected delegate to the thirty-eighth Congress of the United States;

That Justus Townsend received a majority of the votes cast for territorial auditor, and was duly elected as such; and that S. G. Irish received a majority of the votes cast for territorial treasurer, and was therefore duly elected as such.

[L. S.] In testimony whereof I have hereunto subscribed my name and affixed my official seal. Done at Yankton, this 29th day of November, 1862.

JOHN HUTCHINSON,

Secretary and Acting Governor.

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DAKOTA TERRITORY, SECRETARY’S OFFICE.

I, John Hutchinson, secretary of the Territory of Dakota, do hereby certify that the foregoing is a true and correct copy of the proclamation issued by me on the 29th day of November, A. D. 1862, and by me recorded and now on record in this office.

[L. S.] Witness my hand and the great seal of the Territory. Done at Yankton, this 17th day of June, A. D. 1863.

JOHN HUTCHINSON.

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EXECUTIVE OFFICE

YANKTON, DAKOTA TERRITORY.

William Jayne, governor of said Territory, to all whom these presents shall come sends greeting:

William Jayne having received the largest number of votes cast at the general election for delegate in the thirty-eighth Congress of the United States from the Territory of Dakota, held on the first day of September, A. D. 1862, is hereby declared duly elected said delegate in Congress from the Territory aforesaid.

This certificate shall be, and is, the certificate of the said election as delegate in Congress from this Territory in the thirty-eighth Congress of the United States.

[SEAL.] In witness whereof, I have hereunto set my hand and caused to be affixed the great seal of the Territory of Dakota. Done at Yankton, this 5th day of January, in the year of our Lord 1863.

WILLIAM JAYNE,

Governor of Dakota Territory.

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DAKOTA TERRITORY, EXECUTIVE OFFICE.

I, John Hutchinson, secretary and acting governor of the Territory of Dakota, hereby certify that according to the canvass made by the territorial canvassers, on the 24th day of October, 1862, of the votes for delegate to Congress, William Jayne had a majority over J. B. S. Todd of sixteen votes; and that subsequent to said canvass, returns were made to this office, in due form, of votes from Pembina district, as follows: For J. B. L. Todd, one hundred and twenty-five; for William Jayne, nineteen; which said votes were not included in the canvass made by the territorial canvassers, but are not on file in this office.

[L. S.] Witness my hand and the great seal of the Territory. Done at Yankton, this 15th August, 1863.

JOHN HUTCHINSON,

Secretary and Acting Governor.

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DAKOTA TERRITORY, SECRETARY’S OFFICE.

I hereby certify that I have not issued a certificate of election to any person as delegate to Congress from this Territory; that there is no record in this office of any having been issued by any person; and that I have no official knowledge of the territorial seal having been affixed to any such certificate.

[L. S.] Witness my hand and the great seal of the Territory. Done at Yankton, this 26th day of September, A. D. 1863.

JOHN HUTCHINSON, Secretary.

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I, Newton Edmunds, governor of the Territory of Dakota, hereby certify that at an election held in said Territory, on the first Monday of September, A. D. 1862, William Jayne was duly, and in pursuance of the laws of said Territory and of the United States, elected delegate from said Territory to the thirty-eighth Congress of the United States, and that no other person was elected delegate from said Territory. All of which fully appears from the records and files in the office of the secretary of said Territory.

[L. S.] In witness whereof, I have hereunto subscribed my name and caused the great seal of said Territory to be hereunto affixed this the twenty-fifth day of December, A. D. 1863.

NEWTON EDMUNDS, Governor.

Countersigned by—

JOHN HUTCHINSON,

Secretary of Dakota Territory.

• First Report on the Dakota Contested Election (introduced on 1864-01-13 12:00:00 - CREATE_FROM - e842837) [This document]

• First Report on the Dakota Contested Election (introduced on 1864-01-13 12:00:00 - CREATE_FROM - e842837) [This document] [view current proposal at this moment]