The Committee of Elections, to whom were referred the certificates and all papers relating to the election in the sixteenth congressional district of Pennsylvania "with instructions to report, at as early a day as practicable, which of the rival claimants to the vacant seat from that district has the prima facie right thereto, reserving to the other party the privilege of contesting the case upon the merits, without prejudice from lapse of time or want of notice," having considered the said certificates and papers so referred, submit the following report:

It appears from the said certificates and papers so referred, that Alexander H. Coffroth and William H. Koontz each claims to have the prima facie right to the vacant seat in question, and each of said claimants has appeared in person before the committee and also by attorney, and been heard in support of his respective claim.

By the general election law of Pennsylvania, (Purdon's Digest, 8th ed., 1853, pages 287, 288, 289, 293, sections 59, 60, 63, 64, 65, and 113,) when two or more counties compose a district for the choice of a member of the House of Representatives of the United States, it is provided, after an election has been held, that the judges of election in each county having met, the clerks shall make out a fair statement of all the votes which shall have been given at such election, within the county, for every person voted for as such member, which shall be signed by said judges and attested by the clerks; (section 63,) and one of the said judges is to take charge of said certificates of votes, and produce the same at a meeting of one judge from each county, at such place in such district as is, or may be, provided by law for that purpose. The judges of the several counties composing such district) having met as aforesaid, are then required (section 64) to cast up the several county returns and make duplicate returns of all the votes given for such office of representative in Congress in said district, and of the name of the person elected, and to deposit one of said returns for said office of representative in the office of the prothonotary of the court of common pleas of the county in which they shall meet, and to place the other return in the nearest post office, sealed and directed to the secretary of the Commonwealth.

The said return judges are also required (section 65) to transmit to the person elected to serve in Congress a certificate of his election, within five days after day of making said return.

On the receipt of the return of the election of members of the House of Representatives of the United States, as aforesaid, by the secretary of the Commonwealth, the governor is required (section 113) to declare by proclamation the names of the persons so returned as elected in the respective districts, and also to transmit, as soon as conveniently may be thereafter, the returns so made to the House of Representatives of the United States.

The sixteenth congressional district of Pennsylvania is composed of the counties of Adams, Bedford, Franklin, Fulton, and Somerset.

The governor of Pennsylvania, in his proclamation of the date of December 26, 1864, declaring the names of the persons returned as elected in the respective congressional districts in said State, omitted to declare the name of any person as returned elected in the sixteenth district, as appears from the certified copy of said proclamation accompanying this report, (paper 1,) referred to the committee, but states therein "that no such returns of the election in the sixteenth congressional district have been sent to the secretary of the Commonwealth, as would, under the act of assembly of July 2, A. D. 1839, authorize me to proclaim the name of any person as having been returned as duly elected a member of the House of Representatives of the United States for that district." Said act of July 2, 1839, is the law hereinbefore referred to.

Neither of the claimants, then, having any prima facie right to the seat, under the governor's proclamation, the committee next proceeded to examine the official return made by the return judges of said district of all the votes given for said office of representative in Congress in said district as cast up by said judges from the returns from the several counties therein.

The committee found among the papers so referred to them two papers, (papers 2 and 4,) each on its face purporting to be such return, and might have been in some doubt as to which was the genuine official return, each being signed by a different set of return judges, save that the name of Nathan Winter is affixed to each as the return judge from Fulton county, and the paper purporting to be a return in favor of Mr. Coffroth (paper 4) is signed by only four judges, while the paper purporting to be a return in favor of Mr. Koontz is signed by five; but they were relieved from any doubt on this subject by the admissions of the respective claimants made before the committee, and by the statement of facts contained in the opinion of the attorney general of Pennsylvania, Mr. Meredith, submitted to the governor of said State on this same point, which opinion (page 32) each of the claimants laid before the committee and admitted in evidence, so far as the statement of facts therein given is concerned, for their consideration and action in determining the question of the prima facie right of the claimants to the vacant seat.

Aided by the light thus thrown upon the case, the committee were unanimously of opinion that the persons signing the said return in favor of Mr. Koontz were not the legally constituted board of return judges for said district, and had no lawful authority to make any such return, and that the four persons signing the said return in favor of Mr. Coffroth were a majority of the legal return judges, and the only lawful board.

It was admitted that both the so-called boards met and acted on the same day, but the Koontz board a little earlier in the day than the other; both on the day and at the place fixed by law. Four of the five legal return judges, therefore, being found to have certified (paper 4) that Mr. Coffroth had received 9,475 votes, and Mr. Koontz, 8,462 votes, and that Mr. Coffroth had "received a majority of all the votes cast as counted before the board, and is declared duly and legally elected a member of the House of Representatives of the United States," and that he had been awarded a certificate of election, it is difficult to explain why this return, thus made and certified by these return judges, does not show a prima facie right in Mr. Coffroth to the seat in question.

But it is claimed on the part of Mr. Koontz that the said return shows on its face that the county of Somerset was not included by the said return judges in the count, and, therefore, that the return is void, though it also appears in the return, and also in the opinion of the attorney general, above referred to, that the return judge of Somerset county was present at Chambersburg on the day of the meeting, and was notified thereof, but neglected or refused to attend.

The attorney general, in his said opinion, (page 32,) also takes this position, and claims that the district judges ought to have adjourned over, and referred to duplicate originals of the returns for Somerset county, which he says were accessible in the office of the prothonotary of said county of Somerset.

To this it may be replied, that the statute makes no provision for any such adjournment or proceeding, and it does not appear by the said statute that, in case where a congressional district is composed of several counties, any such duplicate original is required to be filed in each of the counties of the district, but the original statement of votes given in each county for representative in Congress, certified by the judges and attested by the clerks, is directed (section 63) to be taken charge of by one of said judges, who "shall produce the same at a meeting of one judge from each county at such place in said district as is or may be appointed by law for that purpose;" and when the district return judges have met and cast up said returns, and made duplicate returns of all the votes given for such office in such district, it is then, and not till then, required (section 64) that one of said duplicate returns so made by said district return judges shall be filed in the office of the prothonotary of the court of common pleas of the county in which they shall meet.

The return judge of Somerset county, therefore, in thus absenting himself from the meeting of the board, and withholding from the other legal return judges the returns from his county, and in thus co-operating with an illegal board in endeavoring to give a certificate to Mr. Koontz, was manifestly acting in direct violation of law, and in disregard of his official duty.

It is now claimed on behalf of Mr. Koontz that this voluntary neglect of duty on the part of his friend, the return judge of Somerset county, shall be made to redound to his benefit, and that he shall in fact be placed in a better position than if said judge had done his duty; for it appears that if the actual vote of Somerset county (paper 6) had been handed in by said judge to said board and added to the other returns made to the board, and included in their computation, the result would still have been the same, and in favor of Mr. Coffroth.

The aggregate returns before the board, from all the counties composing the district, would then have been as follows:

Coffroth. | Koontz.

Adams ...... 2,707 | 2,366

Bedford ...... 2,504 | 2,053

Franklin ...... 3,457 | 3,508

Fulton ...... 807 | 535

Somerset ...... 1,592 | 2,512

Total ...... 11,067 | 10,974

Leaving Coffroth a majority of 93 on the face of the official returns from all the counties of the district.

In addition to this we have also the certificate of the return judges, (paper 16,) transmitted to Mr. Coffroth as required by law, (section 65,) being the official certificate of his election, which in the omission apparent on the face of the governor's proclamation would seem to prima facie entitle him to the seat. The silicate of Mr. Koontz (paper 15,) being signed, as we have seen, by persons legal return judges, is, of course, wholly illegal and void.

It is difficult to perceive the correctness or force of the reasoning which, while recognizing the majority of the return judges as the legal board and competent act, yet in effect makes all their acts illegal and void, because one of the return judges of the district voluntarily neglected or refused to attend the meeting of the board and withheld from the board the returns from his county; thus in effect allowing a minority of one a sort of veto power over the majority.

The return certified by the majority certainly embraces the counties of Adams, Bedford, Franklin, and Fulton, and is an official certificate of all the returns presented, and of the aggregate returns of votes from these counties; and as the vote of Somerset county is undisputed and would not have changed the result, we see no occasion or justification, on a prima facie hearing, for going beyond the action of these return judges who met on the day and at the place fixed by law, and did all that the law required them to do.

If, however, we should waive this position and go beyond, not behind, the action of the district return judges, it would only be to ascertain the vote of Somerset county; and that being obtained and added to the other certified returns, as we have seen, still gives Mr. Coffroth the certified majority of all the votes cast in the district and the prima facie right to the seat.

Clearly the district board of return judges had no right to go behind the certified returns brought by each return judge from his county, and in determining a prima facie right to a seat the same rule would seem applicable to and binding upon the Committee of Elections and the House. But suppose we should see fit, in violation of this rule, to go behind the action of the district return judges, we come then next to the certified returns of the several boards of county return judges of each county in the district, which returns were not separately before the governor. In three of these, (papers 5, 6 and 7,) viz., Franklin, Somerset and Fulton, all of the return judges unite in certifying the result, and the claimants each admitted before the committee, that on this hearing of a claim to the prima facie right to the seat, neither of them could go behind any one of these three returns thus certified.

The home vote of Bedford county is also certified (paper 8) by all of the return judges, and is undisputed by the claimant, but the soldiers' vote of Bedford county is certified by a majority of the return judges, (paper 9,) as 318 for Koontz, and 94 for Coffroth, while the minority of the return judges sign another return, (paper 10,) which, of course, is of no validity.

A majority of the return judges of Adams county certify to the returns of votes cast in that county, including the soldiers' vote, (paper 11,) giving Coffroth 2,707 votes, and Koontz 2,366.

The minority sign another return, purporting to include the home vote and the soldiers' vote, (paper 13,) but nothing appears on the face of the majority return, from either Adams or Bedford county, to show but what they constitute the whole board of return judges present for each of said counties.

Taking the majority return of the soldiers' vote in Bedford, and add to the return of the whole board of the same county of the home vote, and the majority return of the whole vote in Bedford county, and the unanimous return of the return judges from Franklin, Fulton, and Somerset, and on the face of those returns the vote is as follows, viz:

Coffroth. | Koontz.

Adams ...... 2,707 | 2,366

Bedford ...... 2,504 | 2,058

Franklin ...... 3,457 | 3, 508

Fulton ...... 807 | 535

Somerset ...... 1,592 | 2,512

11,067 | 10,979

Coffroth's majority, on the face of these certified returns from the return judges of these several counties composing the sixteenth congressional district, it will be seen, is 88, and he still has the prima facie right to the seat.

But it is claimed on the part of Mr. Koontz that all the return judges in each county must sign and certify the returns of that county; that the judges must act as a unit, and that if they do not so unite in signing the certificate, the certificate is void and the return invalid. A similar position was taken by a democratic district board of return judges of the counties of Franklin, Fulton, Belford, and Somerset, composing the sixteenth judicial district of Pennsylvania, in regard to a return of soldiers' votes for judge, certified by the majority of the county return judges of Bedford, the same as in this case, (paper 9,) and said district return judges assumed to reject the return of soldiers' votes for judge, so certified by the majority of the return judges of Bedford county, because said return was not signed by the remaining nine return judges of said county, and in this way overcame the majority for King, the Union candidate for judge, and gave the certificate to Kimmel, the democratic candidate, but included in their return a statement of this soldiers' vote, and the fact of their action in regard to it.

The governor referred the matter to the attorney general, and Mr. Meredith, on the 30th of November, 1864, in giving his opinion, uses the following language:

"The district return judges of the sixteenth judicial district, composed of the counties of Franklin, Bedford, Somerset, and Fulton, have transmitted to the secretary of the Commonwealth a return, in which they state that they have not included the Bedford county return of soldiers' votes, a copy of which they annex, and they assign as the reason for not including it that said return was not certified to by nine of the return judges of Bedford county. The return in question is signed by thirteen of the county return judges, forming therefore a majority of the whole number.

"The reason assigned for not including this return is palpably insufficient. As the authority of the return judges concerns matters of a public nature, a majority may act at a meeting lawfully assembled, and their meeting is presumed to be lawful in the absence of proof to the contrary. The clause of the 79th section of the act of 1839, providing that the returns shall be signed by all the judges present, does not govern the present case; and if it did, it would, 1st, be construed as directory merely; and, 2d, it would be presumed that the return was signed by all the judges present in the absence of proof to the contrary."

A similar opinion, as to the power of a majority of the return judges to act in certifying returns, is given by said attorney general in the paper hereinbefore referred to, (paper 32,) and the majority of the committee fully concur in this opinion of the said attorney general of Pennsylvania, and consider a return, certified by a majority of the county return judges, as a good and valid return. In the case of the judge, above referred to, the governor, acting upon the opinion submitted to him by the attorney general, counted the vote thus certified by the majority of the county return judges, a copy of it being contained in the return certified to the secretary of the Commonwealth, considering said certificate as valid under the laws of Pennsylvania, and as showing a prima facie right in Mr. King to the seat; and he accordingly awarded it to him by issuing to him the commission. This precedent would seem to be conclusive of this case. But neither the attorney general nor any other party in the case of the said district judge ever claimed the right on a prima facie case to go behind the return of a majority of the county return judges and inquire what other soldiers' votes or returns of votes, if any, had been rejected or not counted by them, much less to claim that a certificate of the minority of said return judges was of any legal authority, or was original evidence for any purpose on the investigation of a prima facie right.

But it is claimed, on the part of Mr. Koontz, not only that the act of the majority of the county return judges in certifying these returns from Adams and Bedford is void, but that the Committee of Elections and the House, in this investigation of the prima facie right to the seat, may not only go behind these returns from Adams and Bedford, but also in effect behind the unanimous returns of all the other counties of Franklin, Fulton, and Somerset, so far as the soldiers' vote is concerned. The statement of such a proposition on an investigation of this kind would seem to be sufficient for its own refutation. It would be attempting to hear the case on the merits, without giving the claimants the opportunity of presenting their evidence in full; would be utterly disregarding all credentials, and would obliterate all distinction between a prima facie right on the certificates and papers from the proper certifying officers and a claim founded on the merits on a full hearing of all the evidence that might be adduced by either claimant in support of his claim. (See case of Jayne vs. Todd. vol. 1, page 1, Reports of Committees, 1st session 38th Congress.)

It should be borne in mind that by the resolution of the House referring this case to the committee, the committee are restricted in their first examination and report to the prima facie right of either claimant to the seat; and the committee are to determine this from the certificates and papers referred to them, including always the admissions of the claimants themselves before the committee; but only those papers are to be considered which come from the proper certifying officers, and which those officers are authorized by law to make, and also which are pertinent to the case.

Many papers have been referred to the committee, which, on this hearing, are not evidence for any purpose.

From the legal certificates and returns of the district and county boards of return judges in this case, nothing appears in relation to the rejection of any soldiers' votes; and those who allege such rejection are compelled to look outside of these certificates and returns and resort to papers and statements, which are not legitimate evidence on this investigation, and which, without further proof, would few, if any of them, be evidence of themselves on the hearing of a contest on the merits.

It is claimed on the part of Mr. Koontz that the county board of return judges of Bedford county improperly rejected or omitted to count two of the returns (papers 19, 20, and 21) of soldiers' votes for that county; and that the return judges of Adams county also illegally rejected or failed to count eight of the returns (papers 22, 23, 24, 25, 26, 27, 28, and 30) of soldiers' votes for that county; and that if these votes had been counted he would have had a majority of the votes for representative in Congress, cast in the district.

While the committee are clear in their opinion that on this examination of the matter specifically referred to them in this case they have no right to go behind the official returns of the proper certifying officers, and especially not behind the returns of the county return judges, and that those certificates and returns in this case show that Mr. Coffroth has the prima facie right to the seat, and they so find and report, yet they will add that on an inspection of the papers presented before them on behalf of Mr. Koontz, purporting to be returns of soldiers' votes, on which he relies, they are satisfied that most of those so-called returns are, under the act of Pennsylvania of August 25, 1864, regulating elections in case of soldiers in actual military service, too defective on their face to pass a legal scrutiny, and were not entitled to be counted by the county return judges even if they had all been before said county return judges at the time of their meeting; for, while the said act is in some of its provisions liberal, and says (section 27) that "No mere informality in the manner of carrying out or executing any of the provisions of this act shall invalidate any election held under the same, or authorize the return thereof to be rejected," &c., yet there are many other provisions in regard to the manner of holding the elections, the appointing and qualifying election officers, the recording and certifying the oaths administered to them before entering upon their duties, the mode of keeping and certifying the poll-books and tally-lists showing the name and precise residence of each voter and the number of votes cast, and the mode of certifying and authenticating the returns of such vote, which are essential and material, (sections 2, 4, 5, 6, 7, 9, 10, 13, 14, 15, 16, 17, 18, 28, 32, 33, and 34,) and which must be substantially complied with to carry out the letter, spirit, and intent of the act, preserve the purity of elections, and properly guard the exercise of the elective franchise. The very language of the section quoted—"No mere informality," &c., (section 27)—necessarily implies that where there has not been a substantial compliance with any of the material requirements of the act, and which is apparent on the face of the papers themselves, then the returns are to be rejected, or set aside at least until an investigation is had on a contest on the merits.

One of these so-called returns for Bedford county, of an election claimed to have been held at Barracks No. 1, Soldiers' Rest, Washington, D. C., shows on the poll-book the names of only forty-eight electors as voting, which list is certified by the clerks and judges as correct; and yet the same clerks and judges of election return an aggregate of eighty-seven votes as cast for representative in Congress, or thirty-nine more votes than electors voting, which is manifestly an absurd and illegal return, and should not and could not have been counted by the county return judges. The return also gives no company or regiment (section 7) to which the soldiers belong, nor states any facts or circumstances to bring them within any of the special provisions of section 2 of the act, which could authorize them to open a poll or hold an election there.

So also the poll book in the other so-called return for Bedford county, purporting to be for company H, 208th regiment, (paper 19,) shows only thirty-six electors from Bedford county, while the return gives fifty-six votes for representative in Congress. If it be claimed that the poll-book shows the names of electors from other counties, it is a conclusive reply that the law (section 7) expressly says that "Separate poll-books shall be kept, and separate returns made, for the voters of each city or county;" and we see no authority given to the return judges of Bedford county to count votes cast for other counties, and especially when, as in the case of this last return, some of the electors reside in counties not within the congressional district.

Of the eight alleged as rejected returns for Adams county, the three from the hospitals, viz: Mower, Cuyler, and McClellan, (papers 23, 24, 25,) are by all the committee admitted to be too defectively certified and authenticated to be entitled to any consideration. The law in relation to the certifying, signing, and returning with the poll-book the evidence of the administering the oath to the officers of the election (sections 5 and 15) was wholly disregarded. (See also on this point the case of Blair vs. Barrett, Bartlett's Contested Election Cases, page 315, and cases there cited.) So also in the case of company C, 202d regiment, (paper 22,) where only one judge of election appears to have been appointed, or sworn, or acted, the committee were alike unanimous in their opinion that the return was invalid, (sections 4 and 5,) the law expressly requiring three. (See also Howard vs. Cooper, Bartlett's Contested Election page 282.) The returns of company I, 210th regiment, (paper 35,) do not show that two of the judges or the clerks were sworn, a certificate of which the law (sections 5 and 15) expressly requires. (See also case of Blair vs. Barrett, above cited.) The returns for companies B and G, 138th regiment, (paper 39,) show that these two companies voted together at one poll and having same election officers, both judges and clerks. The law (section 2) directs that a poll shall be opened in each company, and that all electors belonging to such company, and within one mile of the quarters on the day of election, and not prevented by orders, &c., from returning to the quarters, shall vote at such poll. The return shows officers of both companies participating in the election, indicating regular company organizations, and does not set forth any of the facts to bring the electors within any of the exceptional clauses of the statute, (sections 2, 32, and 33.) The returns for company B, 21st Pennsylvania cavalry, either show the judges and clerks of election to have been sworn before one James Mickley, who was not an officer of the election and had no authority (section 5) to administer such oath, or else that neither of the judges or clerks of election were sworn, and in either case is in violation of the law, (sections 5 and 15.) The poll-book or list of electors voting at said election is not certified as required by law, (section 15,) nor were separate poll-books kept or separate returns made (section 7) for the voters of each city or county; but it would appear from what is claimed to have been intended for a list of the electors that there were forty-four whose names and residences are given—four from Franklin county, one from York, and thirty-nine from Adams county—while forty-one votes are certified as cast for representative in Congress, being two more than there were electors for Adams county.

The remaining return for Adams county, company K, 184th regiment, (paper 30) being 21 for Coffroth and 39 for Koontz, would not, if it had been counted, have changed the result, but would still have left a majority of 70 for Mr. Coffroth. There are other objections which might be raised as to the legality of many of said returns so presented, but the foregoing are instanced as apparent on a first inspection. How many of these objections might be removed by other evidence on a full hearing upon the merits the committee are not now called upon to say, nor do they know what the facts may be which relate to the validity of the elections so held, and as to which the returns appear to be so defective. But these returns, whether legal or not, are not proper to be considered on this investigation. When on a contest on the merits the facts may be fully developed, if any legal votes are found to have been omitted in the count, full and final justice may then be done both to the voters and to the respective claimants; but until such an investigation is had, the committee, on the question of a prima facie right to the seat, feel constrained to abide by those precedents and rules of law which experience has proved to be the safest guides in weighing and determining impartially questions of this nature.

The committee therefore recommend the adoption of the following resolutions:

Resolved, That Alexander H. Coffroth, upon the certificates and papers relating to the election in the sixteenth congressional district of the State of Pennsylvania, has the prima facie right to the vacant seat from that district, and is entitled to take the oath of office and occupy a seat in this house as the representative in Congress from said district, without prejudice to the right of William H. Koontz, claiming to have been duly elected thereto, to contest his right to said seat upon the merits.

Resolved, That William H. Koontz, desiring to contest the right of honorable Alexander H. Coffroth to a seat in this house as a representative from the sixteenth district of the State of Pennsylvania, be, and he is, required to serve upon the said Coffroth, within fifteen days after the passage of this resolution, a particular statement of the grounds of said contest, and that the said Coffroth be and he is hereby required to serve upon the said Koontz his answer thereto within fifteen days thereafter, and that both parties be allowed sixty days next after the service of said answer to take testimony in support of their several allegations and denials, notice of intention to examine witnesses to be given to the opposite party at least five days before their examination, but neither party to give notice of taking testimony within less than five days between the close of taking it at one place and its commencement at another, but in all other respects in the manner prescribed in the act of February 19, 1851.

CHARLES UPSON.

H. L. DAWES.

PORTUS BAXTER.

S. S. MARSHALL.

WM. RADFORD.

• Report on the Contested Election of Coffroth vs. Koontz (introduced on 1866-01-26 12:00:00 - CREATE_FROM - e863838) [This document]
• Resolutions on the Contested Election of Coffroth vs. Koontz (introduced on 1866-01-26 12:00:00 - CREATE_FROM - e663160)

• Report on the Contested Election of Coffroth vs. Koontz (introduced on 1866-01-26 12:00:00 - CREATE_FROM - e863838) [This document] [view current proposal at this moment]
  • Motion to Print and Lay the Report and Resolutions on the Table (introduced on 1866-01-26 12:00:00 - PROCEDURE - e863841) [view current proposal at this moment]
    • None (introduced on 1866-01-26 12:00:00 - ADOPT_PROPOSAL - e863843) [view current proposal at this moment]