resided in that county, the latter swore that he never heard of such persons! From the whole of the evidence on this point, the committee conclude that these returns were forged by some person; and they are supported in this conclusion by the fact that, the clerk of Platte county has certified, since this contest began, that they "have been abstracted" from his office--a fact which goes to show that somebody had a motive for their concealment or destruction. The committee think that as such proof as this has been made by the contestant, it was incumbent on the sitting delegate to show such facts as would rebut it, so as to set the matter right if it amounted to a misrepresentation. His not having done so ripens the presumptions they necessarily excite into convictions, and leaves the committee no other alternative than to conclude that the whole vote of Calhoun county is fraudulent, and should not have been counted. The committee, in this view of the vote from Calhoun county, assumed it to be true, as sworn to by the private secretary of the governor, that this county is attached for election purposes to the county of Platte. But this is denied by the sitting delegate, who insists that it is not so attached, and it is in proof that the clerk of Platte county could find no record of a Calhoun county voting precinct in his office. This view of the matter leaves no doubt about the fraudulent character of the vote; for, if the county was not a voting precinct of Platte, it was evidently not organized, and could not legally vote at all. And besides, sending the return to the clerk of Platte by the private secretary of the governor, and its being opened by him, would vitiate it, as has already been shown. III. As to the vote from Izard county: The committee cannot avoid the conviction that the whole vote returned from this county is fraudulent. The vote returned and counted was 24, of which 21 were for the sitting delegate and 3 for the contestant. One witness, who resides on the main travelled road leading to this county, swears that he "never saw a settler of Izard county going to or returning from that county, or heard of one." Another, who visited the county last July, swears that he saw no evidence of settlement, no roads, nor any person who appeared to reside there; and that in travelling through |
the county he neither saw nor met any person. And a third swears that he has no knowledge of any settlements in the county, and has the opportunity of knowing if there were any. He says he has no doubt there are none at all. This the committee consider to be competent proof. The nonsettlement of a county could be proved in no way, and being competent, it so establishes the fact of their being no inhabitants in Izard county as to make it conclusive, inasmuch as the sitting delegate has offered no proof to the contrary. His not doing so leaves the inference a necessary and inevitable one, that the county was wholly without population. And having no population it could not have been an organized county, and consequently no election could have been legally held there. The votes reported from there are therefore fraudulent, and should have been rejected by the canvassers. IV. As to the votes from the precinct of Genoa, in the county of Monroe: It is conceded that this precinct is "in the reservation of the Pawnee Indians," set apart for their occupancy by the United States. By the act of Congress organizing the Territory it is provided that the territory occupied as an Indian reservation shall not be considered a part of Nebraska Territory, but that all such territory shall be excepted out of the boundaries until, by arrangement between the United State's and the Indians, the title of the latter shall be extinguished. No such arrangement as this having been made between the United States and the Pawnee Indians as to this reserve, it was no part of the Territory, and hence there could be no voting precinct legally established within it. The votes returned from there were therefore illegal and fraudulent, and should be rejected. V. As to the votes from L'Eau Qui Court county: The entire vote of this county was counted for the sitting delegate, it being 128 votes. A gentleman who represented the county in the legislature of the Territory swears that there are only from thirty to thirty-five votes in the county; and the witness swears that there are but two settlements in it, and that it is generally unsettled. The only witness whose testimony has been taken by the sitting delegate makes a statement to some extent contradictory of these, and speaks of five settlements in different parts of the county. At one of these he says there is only "a single |
family;" at another, "probably half a dozen voters;" at another, "three dwellings, and may be more;" at another, "one house;" and at the last, the county seat, "about twenty or twenty-five houses." He speaks also of having seen some emigrants going to two other portions of the county, but does not say whether or not they settled there; and he also says that the year before the county polled eighty votes. The committee conclude, from all the evidence, that there cannot be over sixty votes in the county, and that all the vote above that number is fraudulent; that is, that sixty-eight votes should be deducted from the number counted for the sitting delegate. The fraud in this county is abundantly proven. Two of the witnesses visited the county after the election to procure a copy of the poll-book. They succeeded in obtaining it from the clerk, but it was taken away from them by a mob and destroyed before they could get out of the county, those who composed the mob declaring that they were parties to the fraud, and were resolved not to be exposed. The original poll-books were afterwards stolen from the clerk's office, and, doubtless, were also destroyed by the same men; but the witnesses saw enough of them to swear that they contained the names of Howell Cobb, Aaron V. Brown, "ten names of McRea in consecutive order," and several others whom they knew to be non-residents of the county. This proof of the contents of this poll-book is entirely competent, since the loss of the original is shown, and shows such fraud as ought not to go unpunished by the proper territorial authorities. The committee, in view of them, are satisfied that they have made a liberal allowance for the vote of the county. The committee deem it due to the sitting delegate to state their opinion upon the main preliminary points made by him. He insists first: That under the act of February 19, 1851, but one notice of contest could be served by contestant upon the sitting delegate, and that, having served that one notice, the power under the act, is exhausted; and whether sufficient or not, the contestant must abide by it. Your committee entirely dissent from this position. In their view more than one notice may be served under the act of 1851, provided they shall be served within the time required by that act; and they may be treated as one no- |
tice, or as supplemental notices, or the contestant may, with notice to the opposite party, withdraw an insufficient notice and serve a sufficient notice in the place thereof. All the act of 1851 contemplates is fair notice of the subjectmatter of contest within the time specified by the act itself. As the sitting delegate has had such notice, in the opinion of the committee, he has no ground for complaint. Second. That there is no competent proof showing the result of the election. The committee think otherwise. The proof upon this point consists of a copy of the abstract showing the result, as ascertained by the governor and the other canvassers, and filed by the governor in the office of the secretary of the Territory. The law of the Territory makes it the duty of these canvassers to count the votes and ascertain the result of the election. This must necessarily consist of the putting together of the several returns, summing them up, and thus ascertaining the result. When the result is thus ascertained, the governor is required to issue a certificate of election to the person having the highest number of votes. He, of course, files away the result or abstract amongst the executive records as the evidence upon which his certificate is based. The returns of the clerks of the several counties would not be such evidence, wheresoever filed, for they show no result. They are mere abstracts of the poll-books returned from the precincts, and are sent to the governor that one general and final abstract may be made, showing the aggregate of votes and the result; and this final abstract is, from its very nature, a public record belonging to the executive department. The act for the organization of Nebraska provides that the secretary of the Territory shall preserve all the acts and proceedings of the governor which pertain to his executive duties. He is, therefore, made the custodian of this abstract, and as the original must remain where it is, it is competent to prove its contents by a certified copy. That is done in this case, and the committee think it is the best evidence that could be offered. The certificate attached to the abstract shows that the officers of the Territory put this construction upon the law; for it states that it was filed in the office of the secretary by the governor, which was, of course, done in obedience to what the governor considered his duty under the law. |
Third. That the abstract of votes cannot be properly received, because the contest was closed on January 6, 1860, by a notice from the contestant that he would take no further testimony, and the abstract was afterwards procured from the secretary. There is, as the committee think, nothing in this objection; there is nothing in the facts of the case to give it plausibility even. On the 6th of January, 1860, the attorney of the contestant served upon the attorney for the sitting delegate a notice to the effect that the contestant would "proceed no further for the present with the examination of witnesses," &c.; and in the notice it was said, "whether any further testimony shall be taken in his behalf is a question reserved for further consideration;" * * * "should it be deemed necessary to exercise it, a new notice to that effect will of course be given." The committee understand this as having reference manifestly only to the "examination of witnesses." The whole context of the notice shows this, and its object is stated to be that the sitting delegate may have an opportunity of proceeding to take his evidence. It says that if any further evidence is taken notice will be given. This, of course, refers to the taking of depositions; for no notice is necessary to obtain a certified copy of a record. Suppose the contestant had notified the sitting delegate that on a certain day he would apply at the office of the secretary and demand a certified copy of the abstract, what advantage could it be to him? The secretary, in making and certifying the copy, is not a witness, and could not be cross-examined. He performs the whole duty of making and certifying the copy without uttering a word; and the sitting delegate could not have interposed a valid objection to his doing so, for all citizens have a right to such copies of the public records. The argument that such a notice is necessary to obtain a record is frivolous. But it is said that the sitting delegate is deprived of the opportunity of showing that this abstract is false. He does not allege it to be false. If he did, the committee would with pleasure have given him the opportunity to prove it so. But this paper was sent to the House by the judge in Nebraska, before whom the testimony was taken, sealed up with the other papers, and was along with them referred to this committee on the 16th of February, 1860. |
The order to print was made on the 23d of February, 1860 The sitting delegate was bound to know, and might have known, (if he did not know,) with reasonable diligence that this abstract was among the papers before the probate judge and your committee all the time. If he had desired to allege anything against its validity or truthfulness, it was his duty to have brought it to the notice of the committee and House, and have asked for permission to substantiate his accusation by proof. But he has done nothing of this kind, and only argues against the certificate that he should have had notice when it was obtained, since if he had had such notice he might have shown it to be false. The committee are unable to appreciate the force of this argument, but consider the paper, having reached the House and committee regularly, together with the other papers, as competent proof. They consider the seal of the secretary as giving his certificate the import of absolute verity, and decline to impeach it except in a direct mode. As the sitting delegate has made no such case as involves an inquiry into its validity, the committee have declined to prosecute a collateral one. Fourth. That the evidence has not been taken before a proper officer, within the contemplation of the act of 1851. The act of 1851 provides that depositions may be taken before justices of the peace, notaries public, or judges of courts of record. In this case they were taken before a judge of a court of probate in Nebraska, and it is insisted by the sitting delegate that a court of probate is not a court of record. The committee think differently. Such a court can do nothing without a record, and from the very nature of its duties, it must be a court of record. But if it were possible to doubt about such a position, the statute of Nebraska Territory has, in so many words, declared courts of probate to be courts of record.--(Laws of Nebraska, 1855, page 119.) Other technical objections were made by the sitting delegate, which are so immaterial as to render any reference to them wholly unnecessary. The committee consider the case of the contestant clearly and abundantly proven, and from the absence of any contrary proof on the part of the sitting delegate, are compelled to regard the contestant as entitled to the seat. |
The frauds are palpable; so much so as to require that they shall be rebuked by the House as emphatically as possible. If such conduct should be tolerated, it would most se- riously assail the integrity of the ballot-box. The result to which they have come may be summed up, therefore, as follows:
There should be, therefore, deducted
from the 3,100 votes counted for the sitting delegate, 429
illegal and fraudulent votes, which will reduce the whole
vote cast for him to 2,671; and from the 2,800 votes counted
for contestant, there should be deducted 10 illegal and
fraudulent votes, which will make his whole vote 2,790, and
this gives to the contestant a majority of 119 votes. |
NOTES TO CONTESTED ELECTIONS OF DELEGATES 1 Table of votes cast at the election, History of Nebraska, I, 190 note. 2 The editor has given full accounts of the territorial elections in question in the first volume of the History of Nebraska. 3 Ibid., p. 190. 4 Congressional Globe, 2d sess. 33d Cong., XXX, 198. 5 History of Nebraska, I, 190; The Nebraska Advertiser, July 30, 1857. 6 September 13, 1788, the congress of the confederation of states declared, on authority conferred by the convention which formed the constitution of the United States, that "the first Wednesday in March next" should be "the time for commencing proceedings under the said constitution." Accordingly, soon after the first Congress under the constitution assembled, a joint committee of the body determined that the terms of senators of the first class and of representatives commenced on that day--March 4, 1789--and that they must necessarily terminate with the third of March, 1791. According to practice, the third of March continues until noon of the fourth, and consequently each succeeding Congress has commenced at that day and hour. House Manual, 3d sess. 62d Cong., 1912-1913, p. 4 note. An act of Congress passed February 2, 1872, provided that in 1876 and every second year thereafter representatives and delegates should be elected on the Tuesday next after the first Monday in November to the Congress commencing on the fourth day of March thereafter. U. S. Statutes at Large, XVII, 28; U. S. Compiled Statutes 1901, 1, see. 25. This act of course made unnecessary state or territorial legislation on the subject. The act of March 3, 1875, gave such states as were obliged to change their constitutions in order to comply with the general federal law an opportunity to do so. Ibid. 7 Congressional Globe, 1st sess. 34th Cong., p. 3. 8 Laws of Nebraska, second session of the Legislative Assembly, p. 79. 9 An act of the fifth territorial assembly, passed October 25, 1858, changed the time for holding general elections to the second Tuesday in October; in 1859 this occurred on the eleventh of October. 10 The notorious Jack Morrow. His best known ranch or hostelry was situated not far south of the forks of the Platte |
River. In The Indian War of 1864, page 96, Eugene Ware describes the place and its proprietor. Mr. John Bratt, who was a resident of North Platte, Nebraska, remembered that Morrow conducted a road ranch at the time in question which was situated in the neighborhood of Kearny City. He died in Omaha July 14, 1876, possessed of "a handsome property." 11 There is an account, by the editor, of the controversy over this tract in the first volume of the history of Nebraska, pages 378-382. 12 The statement that Gage, Clay, and Lancaster counties were wholly unorganized is inaccurate if not wholly untrue. Clay and Lancaster were included in the legislative apportionment of 1856 and Gage in that of 1857. Gage and Clay elected county officers and voted at the general election in 1857. Gage voted at general elections and elected county officers continuously from that time. Clay does not appear in the list of counties voting in 1858, through all of the three counties were included with Cass in a representative district, entitled to four members, in the election proclamation issued by Governor Izard, May 30, 1857. Governor Richardson, who succeeded Izard, did not assume authority to apportion membership of the General Assembly, and there is no mention of Clay, Lancaster, or Gage county by the journals of the fifth assembly--1857-58--or by the newspapers, as belonging to the Cass district or any other district; but in the House journal of that session four members, the same number allowed to the district comprising four counties in the preceding assembly, were accredited to Cass county. An act of the fifth assembly, passed November 3, 1858, constituted Johnson, Clay, and Gage counties a representative district, and Cass and Lancaster a representative district. The first delegate convention of the Democratic party in Nebraska, held August 1.8, 1859, seated a delegate from Lancaster county and two delegates representing Johnson, Gage and Clay. An act of the territorial as sembly, approved January 11, 1861, provided that thereafter a term of court should be held annually in Clay county; an act of January 9, 1862, recognized the legal existence of the county by legalizing its assessment, for taxes of 1861, and the apportionment act of February 1, 1864, included it with the counties of Lancaster, Seward, and Saunders in a joint representative district, though an act of February 15, 1864, ended its existence by incorporating a part of it in Lancaster county and the remainder in Gage county. The vote of Clay county was accepted without question in the election of 1860, for a delegate to Congress, and at the election for the same purpose in 1862. Pierce county was changed in form and name by the first General Assembly. It was called Ottoe, then the local |
way of spelling the name of the tribe of Indians, who, with the Missouri, their amalgamated kinsmen, had immemorially owned the territory comprised in all of these first eight counties which lay south of the Platte river, until they ceded it to the United States on the 15th of March, 1854. The Platte River was the boundary of Cass county, as designated by Cuming. The organization of Lancaster county was authorized by an act of the first territorial assembly, passed March 6, 1855) and again by the act of the second assembly, passed January 26, 1856, though not including the same territory. By the first act the Platte River was its northern boundary, and its southern boundary was a line extending west twenty-four miles from the southwest corner of Cass county, as it was formed by the act of the first assembly by which its southern boundary extended twenty-four miles westward from the Missouri River on its original southern line. Cass and Pierce were two of the original eight counties whose boundaries were established by Acting Governor Cuming by authority of the organic act of the territory. These outlines were uncertain and indefinite, due in part to carelessness and in part to inadequate knowledge of the country. The Weeping Water and a line running west from its headwaters to the western boundary of the territory ceded by the Oto Indians--about seventy-five miles beyond the Missouri River--were designated as the boundary between the two counties. The southern boundary of Pierce county followed Camp Creek from its mouth, about two miles and a half below the present boundary line between Otoe and Nemaha counties, to a point on the creek twenty miles south of the northern boundary of the county, and thence due west to the limit of the Oto and Missouri country. The Missouri River was the eastern, and the limit of the Oto country the western boundary of both counties. Green county, which also was bounded on the north by the Platte River and on the south by an extension due west of the southern boundary of Cass formed the western boundary of Lancaster. The act of January 26, 1856, extended Otoe and Cass about eight miles farther west and pushed Lancaster that much farther westward, so that its western boundary fell in line with that of Gage. The northern boundary was brought down from the Platte River to its present situation to make room for Calhoun county, whose vote was rejected in the Daily-Estabrook contest. But this new county extended only to the fourth standard parallel on the north, leaving the fractional township 17, of ranges 5, 6, 7, 8, bordering on the Platte River, unincorporated until the act of November 3, 1858, annexed it to Calhoun county. The first territorial assembly |
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