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UAPVAPn I A
CONTESTED ELECTION CASE
\ / er
OF
CLAUDE S. CARNEY
JOHN M. C. SMITH
FROM THE
Third Congressional District
of Michigan
i
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WASHINOTOM
ins
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O
CONTESTED ELECTION CASE
CLAUDE S. CARNEY v. JOHN M. C. SMITH,
FROM THE
THIRD COXGRESSIOXAL DISTUICT OF MICHIGAN.
NOTICE OF MOTION,
To John M. C. Smith.
Sir: Please take notice thnt I shall contest j'our election for the office of
Member of the House of Representatives of the United States for the Sixty-
third Congress by virtue of the election held on the 5th day of November, 1912.
And also take notice that annexeii hereto is a petition 8i)ecifying particularly
the grounds upon which I rely In making said contest.
Dated January 4» 1913.
Tours, etc., Claude S. Carney.
PETITION OF CLAUDE S. CARNEY CONTESTING THE ELECTION OF
JOHN M. C. SMITH AS REPRESENTATIVE IN CONGRESS FROM THE
THIRD CONGRESSIONAL DISTRICT OF MICHIGAN.
To the House of RepresentativeH in the Congress of the United States:
Your petitioner, Claude S. Carney, respectfully represents that the third con-
gressional district of Michigan is coini)08e(l of the following five counties only :
Kalamazoo, Calhoun, Hillsdale. Branch, and Baton; that your i>etitioner at the
"J" general election held on the 5th day of November, 1912. was the Democratic
— candidate for Representative in Congress at said election for sjiid third con-
gres8i(mal district: that he resides at the city of Kalamazoo, in the Siild county
of Knlrmazoo aforestiid; that John M. C. Smith was the Rep'iblican candidate
for Representative for Congress for said third congressional district at siiid
election, and resides in the city of Charlotte, county of Eaton aforesaid.
*^ Your i>etitloner further shows the result of said election was determined by
the board of State canvassers on the 10th day of December, 1912: that on the
face of the returns as determined by said State board of canvassers 14,609 votes
were cast for the said John M. C. Smith and 14.4^2 votes were capt for the said
Claude S. Carney; that the siUd John M. C. Smith claims the seit in the Sixty-
third Congress upon the face of said returns by a majority of 127 votes, which
result was brought about by false, fraudulent, and illegal returns being made by
v/ several of the various insi)ectors of election in said district, by false counting of
•^ ballots, and by corrupt and unlawful conduct of the various boardJ? of election
^ inspectors, officers, and other persons In many of the various precincts of said
' district, and by some of the boards of county canvassers of said district, by
K> means of which your petitioner was deprived of his lawful. Just, and legal
" rights in the premises; that your petitioner was Justly, lawfully, and legally
^ elected to the said office at said election ; that he was wrongfully, fraudulently,
and unlawfully deprived of his rights in said election to a certificate of his
'S election and to the said seat in Congress from the third congressional district
of Michigan, as will be more particularly hereinafter set forth and made to
append
568299
•T ./
•4 '"^
4 CABKEY Y6. SMITH.
First Your petitioner further shows that in the conduct of said election it
was the legal duty of the various boards of election inspectors at the various
voting precincts In said county in said congressional district to transmit to the
board of county canvassers of that county statements of the result of their
various respective precincts of the count made of the votes cast therein at said
election, and that said statements bf the result be by said various boards of
inspectors transmitted to said board of county canvassers in envelopes under
the seal of sjiid board of Inspectors for the purpose of securing the purity of
said election, and that by the provisions of the law of Michigan for the purpose
of securing the delivery of said sealed envelopes to the said board of canvassers
said sealed envelopes shall be placed In the custody of the county clerk ; that
the law requlreil the said board of courfty canvassers to meet and organize on
the first Tuesday after the first Monday following said election before the hour
of 1 o'clock p. m. of said day for the purpose of canvassing the votes cast at
said election from said statements; that the law contemplates that said sealed
enveloi)es containing said statements and returns be broken only by the board
of county canvassers on the day fixed by law for the said first meeting of said
board of canvassers.
Your petitioner further shows that none of said statements of the result of
said election in said county of Eaton were delivered under seal of the respective
boards of election insi)ectors to the board of county canvassers on the said day
fixed by law for the first meeting of said boa rd of county canvassera ; that after said
statements were sealed In their respective envelopes and shortly after said
election and before the time fixed by law for the first meeting of the board of
county canvassers the said election Inspectors' seals on said envelopes contain-
ing said statements and returns, as well also as said envelopes themselves, were
willfully and unlawfully broken, said statements removed from said envelopes
and delivered over to various individuals, including John M. O. Smith and one
John Davis, of Battle Creek, Mich., one of the Republican congressional com-
mitteemen and one of the political campaign managers of said John M. C.
Smith In said district: and said John M. C. Smith, said Republican candidate
for Congress, and said John Davis and various other individuals were given
free, unlimited, and private access thereto; that some of the said parties in-
terested in the election of said John M. C. Smith were permitted, before the
meeting of said board of county canvassers, to remove, and did remove, several
of said statements, on which the seals had been broken as aforesaid, from the
office of said county clerk, who was the lawful custodian thereof; that among
some of those who took some of said statements out of the office of said county
clerk was one William Smith, a son of said John M. C. Smith; that after said
unlawful breaking of said seals of said envelopes which contained said state-
ments and before the meeting of said board of county canvassers abundant
opportunity was thus wrongfully, corruptly, willfully, unlawfully, and inten-
tionally given to said John M. C. Smith and to those Interested In his election
to unlawfully change and alter said statements and returns to the advantage
of said John M. C Smith; that John C. Nichols, the county clerk of Eaton
County, unlawfully connived and conspired with the said John M. C. Smith,
said William Smith, said John Davis, and others Interested In securing the
election of said John M. C. Smith by unlawfully permitting said Statements to
be manipulated as hereinbefore described, and by aiding therein, before the said
meeting of the board of county canvassers on the day fixed by law.
And for the reasons aforesaid said statements formed no basis for a lawful
canvass of said ballots of said county of Eaton for the office of Representative
in Congress; that the breaking of the seals and opening of the envelopes con-
taining said statements before the meeting of the board of county canvassers of
said county of Eaton made said statements of no validity In law and no legal
force or effect and furnished no basis whatever on which to predicate any
claimed election of said John M. C. Smith and made the votes and the ballots
for Representative in Congress In paid county illegal and void and of no more
force or effect than as if said ballots had never been cast.
That said unlawful canvass of said votes In said county of Eaton gave to the
said John M. C. Smith a pretende<l plurality over your petlltoner of 912 votes.
Second. Your petitioner further ?hows that on the face of the returns of the
election In the township of Sunfield, In said county of Eaton, the said John
M. C. Smith was given 70 votes more than your i)etltloner was given ; that the
election In the said township of Sunfield was void and a fraud upon the rights
of your petitioner and was unlawfully and illegally and wrongfully conducted
to the great prejudice of your petitioner's rights in the following particulars:
GABKEY VS. 3MITH. 6
1. That the mandatory provisions! of tlie Michigan election law made it the
clear duty of one of the inspectors at said election to keep possession of the
ballots and to hand them to the voter after another inspector has opened the
package of ballots and still another had put his initials upon said ballots ; that
in plain violation of these said mandatory provisions of the law of Michigan
the said ballots were then and there wrongfully and willfully placed in the
hands of one Albert Sayer, who was then and there called upon and permitted
by said board of inspectors to act as instructor to said voters; that the exact
language of the mandatory provisions of the Michigan law in force at said
election is as follows:
" No ballot shall be distributed by any person other than one of the inspec-
tors of election nor In any place except within the railing of the voting room
to electors about to vote."
That in open violation of said law the said Sayer was then and there placed
in a compartment by himself out of the view and hearing of all of the board of
inspectors in said precinct at said election ; the said Albert Sayer was not then
and there an inspector at said election; that there was no legal authority to
call in said Sayer to act as an instructor; that there was no provision of law
to make him an instructor or to give him the right to handle then and there
said ballots for any purpose whatever; nevertheless, the said Sayer was then
and there by said board of lns9)ectors illegally and wrongfully given possession
of all of the ballots before they were delivered to the voters to be marked ; and
that the said Sayer, in open violation of the law of Michigan, was then and
there ^iven free access to the voters within the railing of the voting precinct
and distributed to each voter a ballot, and he, the said Sayer, was given
unlimited opportunity to converse with the voters privately, and did so converse
with many of said voters in private within the railing of the voting room and
out of the hearing of the board of inspectors ; that the said inspectors remained
together by themselves behind the booths in substantially a different room from
the one in which said Sayer distributed to said voters the said ballots.
2. That about the hour of 12 o'clock noon on said election day said board of
inspectors adjourned for at least one hour; that two ballot boxes were used
on said day in said voting precinct for the purpose of receiving and containing
the ballots cast for R^resentatlve in Congress at said election; that when said
board so adjourned for noon each and all of said inspectors, clerks, and all
others who were then assisting said board in said election left said voting
place at the same time and left said two ballot boxes and the ballots therein in
said voting place unsealed and unlocked without any precaution or measure
being taken as required by law at the time of said adjournment to prevent the
fraudulent tampering with said ballot boxes; that one Z. Slater, a gatekeeper
at said election, was unlawfully and wrongfully for at least one hour given
custody of and free access to said ballot boxes and the ballots therein and also
of said uncast and unvoted ballots which were in said voting place and of the
said poll list kept at said election.
3. Your petitioner further shows that the count of said ballots in sjiid town-
ship of Sunfield was not made by the board of lnsT)ector8 of snid election as
required by law but on the contrary from time to time said different members
of said board left their posts of duty then and there during said coiuit, and
permitted third parties who had no legal or lawful right whatever then and
there so to do to wrongfully and corruptly act as counters and tally clerks in
the place of the lawful members of said election board; that the said Albert
Sayer, among others, was permitted then and there to act as one of the counters
of said ballots without any lawful authority whatever so to do; that one
William R. Witherall was permitted to act on said' election board and to so
act in place of one of the legal members of said election board: that said
Witherall did then and there handle the ballots, statements, and tally books,
and kept and made up said tally: that said Witherall took no oath of any
kind, and had no legal right whatever to handle said ballots, statements, or
tally bookSw
Your petitioner further shows that one, Joel Bera, who was then the Republi-
can postmaster at the village of Sunfield, without any lawful authority, sat on
said election board then and there from time to time, and then and there acted
as an inspector and aided in counting said ballots; that the said Bera, the said
Republican postmaster, in acting on said board and in making up said count
was acting in the interests of the said John M. C. Smith, the said Republican
candidate for Representative in Congress. That the said Bera was neither an in-
spector nor tally clerk nor any other sort of an election officer in said precinct:
9 CABKEY VS. SMITH.
tbat he was personally Interested and actively engaged throughout said election
in promoting and aiding the said John M. C. Smith, and his conduct in acting
on said board was unlawful and an open violation of your petitioner's rights in
the premises ; that lawful votes then and there cast for your petitioner were not
credited to your petitioner in the said tally and count which should have been
credited to your petitioner; that votes were credited to the said John M. C.
Smith on said tally books which were not cast for him.
4. Your petitioner further shows that the law governing said election re-
quired said board to immediately on the closing of said polls at 5 o'clock In
the afternoon of said election day to canvass the votes cast in said precinct
of Sunfleld ; that said board unlawfully permitted outsiders to assist in carry-
ing on said canvass of the votes a portion of the time until about the hour of
12 o'clock midnight of said election day ; and although the canvas of said vote
was not then completed, nevertheless said election board then and there an-
nounced publically an adjournment of its proceedings until 7 o'clock of the
next morning, to wit, November 6, 1912, and all the members of said board
did at, to wit, 12 o'clock midnight of said election day, after announcing said
adjournment, blow out the lights and place said polling place in darkness, and
went away from said polling place, leaving the said two ballot boxes In said
polling ijlHce unsealed and unlocked, so that designing persons could easily
tamper with said two«ballot boxes; that Immediately after said adjournment
several of the members of said election board went about two blocks away into
a barber shop, where they received election returns for about three-quarters of
an hour ; that immediately after said adjournment several of the other members
went to bed. Tliat about one hour after said adjournment some of the mem-
bers of said election board reconvened at said polling place and proceeded with
the count of said ballots in the absence of at least one of the members of said
election board, .and so continued to count said ballots until 5 o'clock in the
morning, November 6, 1912, at which last-named time one of said absent mem-
bers returned to said polling place, whereupon another of the members of said
board left said polling place, the count of said votes not then being completed.
When said board reconvened about one hour after said adjournment no public
announcement was made that said board would reconvene; that none of said
board were present continuously through the canvass of said votes.
And your petitioner alleges that the said canvass of said votes in said precinct
was not a public canvass thereof, was fraudulent and illegal, and nuide abso-
lutely void each and every ballot and vote cast In said precinct nt s|0d election
in said precinct for John M. C. Smith for the office of Representative in Ck)n-
gress; that about 5 o'clock in the morning, November 6, 1912, said election
board disbanded without first having made, the statement of the result and
returns of said election in said precinct, which was required to be done by said
election board adjourned or disbanded.
And then and there the members of said election board agreed among them-
selves to meet at the office of Frank H. Bacon, one of the members of the board
of inspectors in said precinct at said election, for the purpose of making out
and signing in the office of said Bacon the statement of the result of said elec-
tion; that as a matter of fact Siiid statements of the renult of said election were
brought to the office of said Bacon already made out; that said statements
were not made out in the presence of said board of inspectors; that said board
of inspectors signed said statements without knowing whether Bald statements
were true or false and without knowing whether said statements pave the cor-
rect count of the result of the votes cast in said precinct at such election for
the office of Representative in Congress or not. That sjiid statement was
fraudulently dated back to the 5th day of November. 1912, the day of election.
That the 8:«i(l stjitement was so falsely dated November 5, 1912 for the pur-
l)08e of concealing the unlawful conduct of said election board; that in truth
and in fact said statement was not made out and signed by said inspectors of
election until the forenoon of November (>, 1012; that the acts and doings of
said Insi)ectors of election in so dating back to November 5. 1912, the said
statement was illegal. Your petitioner further shows that at no time did said
election board publicly declare the result of said election, and at no time did
said board publicly declare the number of votes received by each person who
was a candidate on the ballots at said election for the office of Representative
in Congress, which the law of the State then In force required said board of
inspectors to do.
Third. Your petitioner further shows that in the township of Carmel, in the
county of Eaton, on the face of the returns made by the board of election
CARNEY VS. SMITH. 7
Inspectors, said board of election inspectors gave to John M. C. Smith 55 votes
more than to your petitioner; that raid election in said township of Carmel
and said returns were illegal and wholly void, and the ballots counted for the
said John M. C. Smith in said precinct of Carmel of no more force or effect
thfiu as if said ballots had never been cast; that the law of Michigan provides
in exact language :
" Said box shall not be opened during the election except as provided by law
in case of adjournments."
The only adjournment provided for is a noonday adjournment of one hour,
at which time the board of inspectors are given the authority to open the
ballot box for the sole purpose of dei>o8iting the poll book therein. The law of
Michigan also provides that entire secrecy of the ballot shall be maintained,
and no ballot exhibited after it is marked shall be counted at all.
Your petitioner further shows that, notwithstanding the plain mandatory
provisions of the law, the said board of inspectors in the township of Carmel
at said election did then and there, about the hour of 2 o*clock in the afternoon
of said day, in violation of the law. willfully and unlawfully open the ballot
box containing the ballots there cast at said election for Representative in Con-
gress in said district, and did then and there unlawfully, willfully, and Inten-
tionally exhibit said bnllots to each member of the board and to the voters
who were present who had already cast their ballots, and did th«i and there
exhibit said ballots which had already been cast prior to the hour of 2 o'clock
to the electors who had not already voted, who cast their ballots at said election
after said ballot box was unlawfully opened as aforesaid ; that a large number
of the electors who had not yet voted were permitted to and did examine the
ballots that had already been cast.
Your petitioner further shows that in violation of the law the said board of
inspectors then called two men within the railing who were in no way members
of said board of inspectors or officers of said election, and neither of whom
had any right or authority to handle said ballots at any time; and that there-
upon one member of said board of insiiectors, together with said two men
called In from the crowd, did then and there proceed at the said hour of 2
o'clock in the afternoon of said day to count the ballots that had already been
deposited in the ballot box. and during the same time the remaining members
of said board of inspectors then and there carried on and conducted said
election ; thnt your petitioner had little or no acquaintance in said township of
Carmel ; that said township is located, to wit, about 50 miles from your \)etX-
tioner's residence, and that said township of Carmel is located near the home
of the ssiid John M. C. Smith, to wit. about 3 miles from his siiid home; that
said unlawful and willful conduct above described of the board of inspectors
in so violating the secrecy of said election and so making public before the
close of said i)o11s the number of votes cast for the office of Congressman
operated greatly to the prejudice of j'our petitioner's rights in said election.
Your petitioner further shows that the said unlawful canvass of said ballots
made as afores:iid was not made by the board of inst)ectors but by one member
thereof and by wiid two men who were not 'members of said board of in-
spectors assumed by them as the canvass of said board; that said board of
inspectors never canvassed the vote cast in said i)recinct and never counted the
ballots so cast; that the returns and statement of the votes made by the said
inspectors of election were not made by said Inspectors upon their own knowl-
edge; that the said returns and said election were wholly void and of no legal
effect.
Fourth. Your petitioner further shows that in violation of the rights of your
petitioner and the laws of the State of Michigan on numerous occasions while
said election was being conducted on November 5, 1912, in said congressional
district in the foUowlng-nametl precincts in said district In said Eaton County,
to wit: Townships of (/armel. Bellevue, Bunton, Eaton, Roxand, Windsor, first,
second, third, and fourth ward of city of Charlotte*. In all of which precincts
the election boards respectively returned a majority to the board of convassers
of said ISaton County more votes in favor of John M. C. Smith than for your
petitioner, and in each one of said precincts certain of the Inspectors therein
wrongfully, willfully, and unlawfully entered the booth with several of the
voters while said voters were in said booth preparing their ballots; that said
inspectors in the aforesaid instances did not before entering said booth or at
any other time require said voters to make oath or any of them that they (said
voters) could not read the English language, nor did the said inspectors require
aaid voters or any of them to make oath that they (said voters) were physi-
8 GABNEY VS. SMITH.
cally unable to mark their ballots, nor were said voters witb whom said inspec-
tors entwed said booth apparently unable to mark their said ballots. That the
acts of «aid Inspectors in so, as aforesaid, entering the booths with said voters
were in violation of the law then in force and gave said inspectors the oppor-
tunity to scrutinize said ballots and learn for whom said electors were casting
their ballots and gave said inspectors the opix>rtunity to influence said voters
to vote as said inspectors desired said voters to vote, and saidi conduct of said
inspectors was illegal and was prejudicial to the rights of your petitioner and
violated the secrecy of the ballots of said voters; that the acts aforesaid made
the election in the aforesaid precincts and all the ballots therein cast for the
respective congressional candidates void and illegal and likewise made the
several statements of the said several boards of election inspectors in said
several precincts of no legal force or effect ; that the board of county canvassers
of the said county of Eaton had no l^al right to canvass the votes in said
several precincts for the reasons aforesaid and did, but should not have con-
sidered the returns made to 8aid board of county canvassers by the boards of
election Inspectors of said several precincts; and for the reasons aforesaid the
board of State canvassers did but should not have considered the vote in said
several precincts for the oflBce of Representative in Congress, and no certificate
of election for the reasons aforesaid should have been Issued to the said John
M. C. Smith.
Fifth. Your petitioner further shows that the said John C. Nichols herein-
before referred to was an attorney at law and was at said election a candidate
on the county ticket of Eaton County in said district for the office of circuit
court commissioner; that he was i)ersonally present in the voting place in the
second ward In the city of Charlotte in said county of Eaton on said election
day and was then and there actively engaged In promoting the Interests of and
endeavoring to secure the election of said John M. C. Smith to the said office
of Representative in Congress; that the said Nichols then and there solicited
and attempted to persuade In and about said voting precinct voters to vote for
said John M. C. Smith for said office of Representative In Congress; that said
Nichols in said precinct on said election day claimed to be challenger for the
Republican Party and under that pretense secured a position inside the railing
where the Insi^ectors of said election were then conducting said election; that
said Nichols, In violation of law, for a period of at least two hours on said
election day and during much of the time of the heavy voting in said precinct
wrongfully acted upon the board of insjjectors and wrongfully handled the
ballots after they were marked by the voters and before said ballots were
deposited in the ballot box, and then and there wrongfully took charge of one
of the ballot boxes In which ballots were then being deposited for Representa-
tive in Congress and then and there wrongfully deposited in said ballot box a
large number of ballots in violation of the laws of Michigan then In force ; that
said Nichols was not then and there an Inspector of said election nor clerk
thereof nor any sort of election officer in said precinct at said election and had
no right to be within ^aid railing, except for a period of time and for the
purpose of casting his own ballot as a voter and not exceeding five minutes.
That the presence of said Nichols within said railing In said precinct, except
for the time he was actually engaged In marking and casting his own ballot,
was fraudulent, wrong, and Illegal, and the said acts and doings of the said
Nichols lu said voting place, as aforesaid, made Illegal and void each and every
and all the ballots voted in said precinct on said election day and made Illegal
and void each and every and all ballots cast for any of the congressional
candidates on said ballots.
Your petitioner further shows that, to wit, one day before said election the
said John C. Nichols entered Into a scheme with one Ernest G. Pray, who was
then the county clerk of said Eaton County, by which said Pray resigned his
said office of county clerk nnd the said John C. Nichols secured an appointment
as county clerk of Eaton County in his own name, which resignation and ap-
pointment was not made public until several days after the Wednesday follow-
ing said election ; that said appointment of said Nichols was secured by him, as
your petitioner believes and charges the truth to be, for the purpose of pro-
moting lK^[tSbests of the said Ernest G. Pray as a candidate for the office of
representffV^e in the Legislature of Michigan and of John M. C. Smith as a
candidate for the office of Representative In Congress, which sjild appointment
gave to the said John C. Nichols the custody of the sealed envelopes containing
the election statements and returns of the several boards of election inspectors
of the various precincts in said county for the board of county canvassers, giv-
CARNEY VS. SMITH. 9
ing said Nichols the opportunity, by the abuse of his said secretly acquired office,
of hariuj? accej?R to the said sealed enveloiies containing said election statements
und returns which were in his custody as ca retainer only for the said board of
county canvassers; that the sitid John C. Nichols thereafter ap|)eared l)efore the
board of county canvassers, when said board of county canvassers actually met,
and acted as their representative for the said John M. C. Smith before said
board of county c^invassers.
Sixth. Your petitioner further shows that in said election in the township of
Hamlin, in said county of Eaton, said John M. C. Smith was given 10 votes
more than your petitioner was given on the face of the returns made by the
board of election inspectors of said township to the board of county canvassers;
that the said election in said township of Hamlin and the said returns thereof
were void and a fraud upon the rights of your i)etitioner; that said election and
the canvass of the votes therein was by the said board of Insiiectors unlawfully,
illegally, and wrongfully conducted, to the great prejudice of your ])etitioner*s
rights in- the premises.
Your petitioner further shows that the law governing said election required
said board of election Inspectors, immediately on the closing of said polls at
5 o'clock in the afternoon of said election day, to canvass the votes cast in said
precinct of Hamlin at said election ; that the saiid board of election insiKH'tors, in
the canvass of the said vote, wholly ignored the said provisions of the law of
Michigan and did then and there, after counting a portion of the ballots cast
at said election, and al>out the hour of 12 o'clock midnight of said election day,
adjourn the canvass of the balance of said votes cast at said election until late
in the afternoon of Wednesday, the 6th day of November. 1912, without any
legal right to so adjourn ; that said board of election insi)ectors and each mem-
ber thereof then and there, to wit, at the hour of 12 o'clock midnight of said
election day, at the time of said adjournment, went away from sjiid polling
lilace, leaving the ballot box unFenled and unlocked, and did then and there leave
the ballots cast for the office of Representative in Congress unprotected and
exposed, and did then and there take no precautions whatever to protect said
ballots from l>eing wrongfully and fraudulently tampered with; tliat after said
adjournment and before said board reconvened one of the members of said
l>oard of election inspectors went back to said polling place and proceeded to
continue the count and canvass of said ballots in private, and did then and
there so handle said ballots and the tally sheets used in said precinct in private
for, to wit. one hour, during which time no other member of said board of elec-
tion inspectors or any other person was present in said polling place.
Seventh. Your petitioner further shows that prior to said election held
November 5, 1012, In and throughout said county of Eaton, in said congressional
district, an agreement was entered into by and between certnin nienibers of the
Republican Party and certain members of the KepublicMn oonunittees in and
of said county with certain meml^ers of the I'rogressive Party nnd members of
certain coipmittees of said Progressive Party in said county of Eaton, whereby
it wrs !»greed between those afores.iid tli t the Uepublicni Party would not
bring any speakers into the said comity of Eaton during the political campaign
preceding said election to make Hi)eeches for and on behalf of the candidate for
President of the United States on the Republican ticket. In consideration of
which it was further agreed between the aforesaid parties that the Progressive
Party would support the entire Republican county ticket in said county, and
woufd also support John M. C. Smith, the Republican candidate for liepresenta-
tive in Congress, to be voted for at said election November 5. 1012; that for
the purpose of seeing that the members of the Progressive Party would support
the candidates for the various county offices and sjiid John M. C. Smith for
Representative in Congress in said election, various of the insi)ectors and other
officers of said election precincts In said county of Eaton and particularly in the
second and third precincts in the city of Charlotte, in sjiid county of Eaton, on
said election day, did urge upon divers and sundry voters in said pn^cincts and
In said two precincts last above mentione<l the aforesaid agreement, and by such
means and other: u»l awful means exerted on said election day upon divers and
sundry voters in «oid various election precincts and within the railing within
the voting place wrongfully, persuasive, and fraudulent means were used for
and on behalf of the said John M. C. Smith, candidate on the Republican ticket
in said county of Eaton for Representative in Congress, to the tletriment, loss,
and Injury in said election of your petitioner, and in violation of the laws of
the State of Michigan; and for the puri)ose of seeing that the afores*iid agree-
ment was being petfermed by the meml)ers of the said Progressive Party In
10 CARNEY VS. SMITH.
the various precincts hereinbefore in this petition alleged, certain of the said
Inspectors of election and meknbers of the election boards and other persons
did and were permitted to talk within the said railing to voters before casting
their ballots in said various election places, and with certain other voters within
the booths in said election places before said voters marked the ballots which
they subsequently cast at said election ; and these acts and doings on the part
of said insi)ectors, members, and officers of said election board and others, who
were permitted to talk with said voters within the railing and in the booths
of said election place and places in said county of Eaton was in plain violation
of law and invalidated all the ballots cast in said precincts at said election,
and made all the ballots cast for the said John M. C. Smith for Representative
in Congress and which were cast for him at said election in said precincts
absolutely null and void.
Eighth. Your petitioner further shows that in the precinct of Union City, in
the county of Branch, in said congressional district, the board of election in-
spectors in said precinct carried on the canvass of the votes cast at said elec-
tion so held in said precinct of Union City until, to wit the hour of" 4 o'clock
In the morning of the 6th of November, 1912, at which time the canvass of the
votes cast therein was not completed, and that a large number of ballots had
not been canvassed and counted; that without first completing the canvass
and counting of said ballots the said board of election inspectors did then and
there unlawfully adjourn the canvass of said votes until, to wit, 10 o'clock in
the forenoon of said 6th day of November, 1912, and each member of said board
of election inspectors and officers of said election and all other persons did then
and there abandon and go away from said i)olling place and did then and
there leave the ballot boxes «nd all of the ballots cast at said election and
the tally and poll books used by the board of election insi)ectors in said
election at said polling place without then and there taking any precautions
whatever to protect said tally sheets, i)oll books, and bnllots from being
tampered with by designing persons; that the statement of the votes cast for
the office of Congressman in wild precinct was not made out and forwarded
to the board of county canvassers within 24 hours after said election as re-
quired by law, was not made out In public, and was not filed with the county
clerk for the board of county canvassers until Friday, the 8th day of November,
1912: that for the reasons aforesaid the said election held In said township
and the said precinct of T^nlon City, the statements of the in8i)ectors of the
number of votes cast, and the canvass of the said vote for Representative in
Congress was Illegal and void, and the board of county canvassers of said
county of Branch did, but had no legal authority to. consider said votes In de-
termining the number of legal votes cast In said county of Branch for said
office of Representative in Congress.
Your petitioner further shows that the said statements of the votes cast in
said precinct of T'ulon City at said election gave to the said .John M. C. Smith
67 more votes than were thereby shown for your i>etltloner.
Ninth. Your petitioner further show^s that the original statements and re-
turns of the said election, held Noveml)er 5. 1912. by the board of election
ln8i)ectors of the .second precinct of the second ward of the city of Battle Creek,
in the county of Calhoun, In said third congressional district, showed that 31
votes were cast for the said John M. C. Smith for Representative In Congress and
23 votes for your petitioner for Representative In Congress; that after the board
of county canvassers convenetl and during the time that they were canvassing
the votes cast in said county of Calhoun at said election that said board of
election Inspect'ors in said second precinct of the second ward of the city of
Battle Creek made a second return of the vote cast in said precinct showing
that 07 votes were cast for the said John M. C. Smith and 61 votes were cast
for your petitioner for the office of Ret)resentatlve in Congress; that said board
of insi^ectors had no lawful authority to make a second return of the votes cast
in said precinct at said election; that said board of election Inspectors was
required by law to canvass the votes of the said precinct In accordance with
the first and original return made by the wild board of election Inspectors of
said precinct; that said board of county canvassers did then and there un-
lawfully ignore the said original statement and return made by the said board
of election Inspectors and did then and there canvass the vote of said precinct
in accordance with the second statement and return of the votes cast In said
precinct contrary to law and against the rights of your petitioner In the
premises.
OASNST V8. 8MIIH.
11
Tent^ Your pedtloner further sbowa that in the township of CUmax, in the
county of Kalamazoo, at said election the total number of votes cast for all the
candidates for the office of Representative in Ck)ngresB was 318; that in the
canvass of said vote made by the board of election inspectors in said precinct of
Climax the said board of election Inspectors canvassed only a portion of the
ballots cast for the office of Representative in Congress; that 49 votes cast for
the office of Representative in Congress were not counted, canvassed, examined,
or considered at all by the said board of election inspectors in their canvass of
the ballots cast at said election in said precinct for the office of Representative
in Congress; that, to wit, 49 ballots were placed in the ballot box by the said
board of election inspectors thereof to the great injury of your petitioner's rights
in said canvass without being examined or counted or considered by said board in
canrassing said vote ; that, to wit, three of said last-named ballots were ballots
that should have been counted for the said John M. C. Smith; that, to wit, 35
of said last-named ballots were ballots cast for your petitioner for said office
and should have been counted for your petitioner in the canvass of said votes;
that said incorrect, incomplete, and wrongful canvass of the ballots cast in said
precinct of Climax was a fraud upon the rights of your petitioner and deprived
him of a large number of votes which would have given him a majority of, to
wit, 31 in said precinct. And your petitioner requests that if it becomes neces-
sary to do so to determine the merits of this contest that the committee on
elections may order a recount of the ballots cast in said precinct of Climax
for the purpose of determining the true and correct number of ballots cast for
your petitioner and for the said John M. C. Smith in said precinct.
ElevenUi. Your petitioner further shows that the following is a schedule of
the votes by counties as shown by the face of the returns cast respectively for
the said John M. C. Smith for the office of Representative in Congress nnd for
your petitioner for the same office at said election in said district on said 5th
day of November, 1912:
In Kalamazoo County for John M. C. Smith, 3,288 ; Claude S. Carney, 3,976.
In Branch County for Jo^n M. C. Smith, 2,156; Claude S. Carney, 2,226.
In Calhoun County for John M. C. Smith, 3.966; Claude S. Carney, 3,.S2S.
In Eaton County for John M. C. Smith, 3,302; Claude S. Carney, 2,3fK).
In Hillsdale County for John M. C. Smith, 1,897 ; Claude S. Carney, 2,242.
That the following schedule correctly states the votes shown upon the face of
different respective statements and returns made by the several boards of elec-
tion inspectors of the various precincts below stated for the said John M. C.
Smith and for./your petitioner for said office of Representative In Congress in
said third coil^-essional district referred to in this i)etitlon, and all of which,
together with the entire county of Eaton, are In this petition contested by your
petitioner for the various reasons hereinbefore set forth.
Eaton County:
Precinct Charlotte-
First ward
Second ward
Third ward
Fourth ward
Precinct Carmel
Prednct Benton
Precinct Eaton
Prednct Roxand
Precinct Windsor
Prednct Bellevue
Prednct Simfield
Prednct HamMin
Calhoun County:
Battle Creek—
Prednct noond, second ward
Branch County:
Prednct Union City.,
Kalamaxoo County:
Prednct Climax
John M.
C. Smith
71
161
214
229
137
158
139
169
174
246
171
87
97
207
83
riuide S,
C.jmey,
65
107
116
140
82
102
43
61
92
155
104
77
61
150
82
EMrst. Tour petitioner therefore prays, for the reason hereinbefore stated^
that all the votes cast for the various candidates for Representative In Con-
gress at the election held November 5, 1912, In each and every precinct (except
12 CABNEY VS. SMITH.
the precinct of Climax, Kalamazoo County, Mich.), specifically named In the
foregoing petition, and the entire county of Eaton be held to be illegal and
void, be thrown out and disregarded, and be not counted or allowed at all.
Second. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative In Congress in
the entire county of Eaton be held to be void and of no force or effect what-
soever.
Third. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes' cast for the various candidates for Representative in Congress In
the first ward in the city of Charlotte, in said county of Eaton, be held to be
void and of no force or effect whatsoever.
Fourth. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative in Congress in
the second ward in the city of Charlotte, In said county of Eaton, be held to be
void and of no force or effect whatsoever.
Fifth. Your petitioner prays, for the reasons hereinbefore stated, that all the
votes cast for the various candidates for Representative in Congress in the
third ward in the city of Charlotte, in said county of Eaton, be held to be void
and of no force or effect whatsoever.
Sixth. Your petitioner prays, for the reasons hereinbefore stated, that all the
votes cast for the various candidates for Representative in Congress in the
fourth ward in the city of Charlotte, in said county of Eaton, be held to be
void and of no force or effect whatsoever.
Seventh. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative in Congress in the
precinct of Carmel Township, in Eaton County, be held to be void and of no
force or effect whatsoever.
Eighth. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative In Congress in t^e
precinct of Benton Township, in said county of Eaton, be held to be void and
of no force or effect whatsoever.
Ninth. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative in Congress in
the precinct of Eaton, in said county of Eaton, be held to be void and of no
force or effect whatsoever.
Tenth. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative In Congress In the
precinct of Roxaud Township, in said county of Eaton, be held to be void and
of no force or effect whatsoever.
Eleventh. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative In Congress In
the precinct of Windsor Township, In said county of Eaton, be held to be void
and of no force or effect whatsoever.
Twelfth. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative In Congress In
the precinct of Bellevue Township, in said county of Eaton, be held to be void
and of no force or effect whatsoever.
Thirteenth. Your petitioner prays, for the reasons hereinbefore stated, that
all the votes cast for the various candidates for Representative In Congress In
the precinct of Sunfleld, In said county of Eaton, be held to be void and of no
force or effect whatsoever.
Fourteenth. Your petitioner prays, for the reasons hereinbefore stated, that
all the votes cast for the various candidates for Representative In Congress
In the precinct of Harablln, In said county of Eaton, be held to be void and
of no force or effect whatsoever.
Fifteenth. Your petitioner prays, for the reasons hereinbefore stated, that
all the votes cast for the various candidates for Representative in Congress in
the second precinct, second ward, in the city of Battle Creek, Mich., In the
county of Calhoun, be held to be void and of no force or effect whatsoever.
Sixteenth. Your petitioner prays, for the reasons hereinbefore stated, that all
the votes cast for the various candidates for Representative In Congress In the
precinct of Union City, In the county of Branch, be held to be void and of no
force or effect whatsoever.
Seventeenth. Your petitioner further prays that there be addeil to the total
number of votes returned by tlie board of inspectors of the township of Climax,
Kalamazoo County, Mich., on behalf of the said John M. C. Smith for candidate
in Congress 3 votes, and that there be ad<led to the total number of votes re-
CABNEY VS. SMITH. 13
rurned by said board of inspectors credited to your petitioner in said township
of Climax 35 more votes than the return of said board of inspectors credited to
your said petitioner in their said return.
Eighteenth. Your petitioner further prays that an order be issued by the
House of Representatives requiring the custodian of the ballot boxes and the
box and boxes of the ballots cast in the precinct of Climax at said election held
November 5, 1912, be produced, and said ballots for the respective candidates
for Representative in Congress voted for at said election may be recounted and
correctly determined as shown by said ballots, or that an order be issued by the
House of Representatives requiring said ballot boxes containing said ballots to
be produced before the Committee on Elections of the House of Representatives
at such time and place as said order shall determine when made.
Nineteenth. Your petitioner further prays that the certificate of election
issued to and on behalf of the said John M. C. Smith entitling him to a seat in
the House of Representatives of the Sixty-third Congress by virtue of the elec-
tion held November 5, 1912, in the third congressional district in the State of
Michigan be held to be null and void, and that the said John M. C. Smith be
deprived of a seat in the House of Representatives of the Sixty-third Congress
of the United States of America.
Twentieth. Your petitioner further prays that for the reasons stated in the
foregoing petition that he be held to have been elected at the election held
November 5, 1912, In the third congressional district of the 'State of Michigan,
as the Representative in and to the Sixty-third Congress of the United States of
America from the third congressional district of the State of Michigan.
Twenty-first. Your petitioner further prays and asks that such further find-
ing and determination be made in the premises as may be in accordance with
law, equity, and justice.
Claude S. Carney,
Petitioner and Contestant.
Business address : Room 711 Kalamazoo National Bank Building, Kalamazoo^
Mich.
E. C. Shields,
Attorney for Petitioner and Contestant.
Business address: Howell, Mich.
John W. Adams,
Attorney for Petitioner and Contestant.
Business address : 108 West South Street, Kalamazoo, Mich.
State of Michigan,
County of Kalamazoo, western district of Michigan:
Claude S. Carney, being sworn, says that he Is the petitioner and contestant
named in and who signed the foregoing petition ; that the facts alleged in the
foregoing petition by him subscribed are stated on his Information and belief
and upon personal Investigation that he has made of the facts in said petition,
and upon certain aflSdavlts made and sworn to as to certain of those facts, which
affidavits are now in his possession ; that petitioner verily believes that the facts
stated In the foregoing petition are true in substance and In fact as in the fore-
going petition the same are set forth; that petitioner files this petition and
makes this contest in good faith and believes that his contest is meritorious, and
that he is entitled to be seated as a Memt)er of the House of Representatives In
the Sixty- third Congress from the third congressional district of the State of
Michigan in the place and stead of John M. C. Smith.
Claude S. Cabney.
Subscribed and sworn to before me his 4th day of January, A. D. 1913.
[seal.] Joseph W. Stockwell,
United States Commissioner in and for
the Western District of Michigan.
To John M. C. Smith.
Sib : Please take notice that annexed hereto is a proposed amendment to my
notice of contest heretofore served upon you, together with petition to the
House of Representatives of the United States and to the Committee on Elec-
tions praying that the annexed amendment may be authorized and permitted.
Dated April 22, 1913.
Yours, etc., Claude S. Cabney.
14 CABKET VS. SMITH.
PETirrON FOR A\ AiiEyDMEXT TO COXYESrANTS NOTICE OF
CONTEST.
To the House of Representatives in the Congress of the United States, and to
the Committee on 'Elections thereof:
1. Your petitioner, Claude S. Carney, being first duly sworn, represents that
heretofore on to wit, the 8th day of January, 1913, he caused to be served upon
John M. C. Smith his written notice contesting the election of the said John
M. C. Smith to the office of Representative in Congress for the third congres-
sional district of Michigan for various reasons in said notice set forth.
2. Tour petitioner further shows that at the time of filing said notice he had
no Isnowledge or Information concerning the matters set forth In the annexed
proposed amendment to said notice of contest.
3. Your petitioner shows that he made diligent search and Inquiry In Eaton
County before the filing of said notice of contest for the purpose of learning the
details of the illegal conduct of the various members of the boards of Insiiectors
of the said November 5 election in the different precincts and townships of
said county of Eaton, and that, as your petitioner is informed, the utmost
secrecy was maintained by said board of election inspectors of said township of
Wlnsor concerning the matters set forth in said amendment, and that your
petitioner did not learn and had no means of learning of the matters set forth
in said annexed proposed amendment to his said notice of contest, prior to the
time of filing his said notice of contest.
4. Your petitioner further shows that he is Informed and believes that said
ballots were after the said November 5 election preserved in the ballot box
used at said election ; that said ballot box was opened at the time of the town-
ship election held on Monday, the 7th, day of April, 1913, and said ballots de-
stroyed, and that shortly thereafter the matters set forth In the annexed amend-
ment were discussed by some of the citizens of said township of Wlnsor; that
your petitioner lives to wit about 65 miles from the place of holding elections
in said township of Wlnsor and for the first time on the 14th day of April, 1913,
received Information concerning the matters set forth in said amendment ; that
on the 18th day of April, and as soon after being informed concerning said
matters as your petitioner could conveniently do so, he made a trip from Kala-
mazoo to said township of Wlnsor, Eaton County, for the purpose of investigat-
ing said information ; that your petitioner believes that each and every matter
set forth in said amendment Is true and material in his said contest ; that your
petitioner has made this application for his said amendment as early as he
reasonably could do after learning of the facts therein set forth. ^
Your petitioner therefore prays that an order or resolution may be made and
entered in this matter authorizing and permitting your petitioner to amend
his original notice by adding thereto the matters set forth in the annexed
amendment with like effect as if said matters were contained in his original
notice of contest.
Claude S. Carney.
Snbsc-rlbed and sworn to before me this 22d day of April, 1913.
Obba Stieghtz,
Notary Public in and for Kalamazoo County, Mich.
My commission expires December 12, 1916.
AMEXDMEXT TO COXTESTAXTS XOTICE OF COXTE^T.
To the House of RcprcHcrttatives in the Congress of the United States:
And now comes your i)etitloner. Claude S. Oirney, and amends his original
notice of contest in the above-entitled matter by nddlug to snld original notice
of (ontost a new paragraph, to be known as paragraph 12. which said new para-
graph Is as follows :
" Twelve. Your iietitioner further shows ui)on inforniatlon and belief and
so charges the truth that at said election so held on said nth day of Nevember.
1912. in the said township of Wlnsor, in said county of Eaton, a large number
of vohl and illegal ballots were by said board of election insi)ectors of said
township of Wlnsor, In sjild county of Eaton, counted for various candidates
for the ofllce of liepresentatlve in Congress, which said void and Illegal ballots
so counted by said i)Ortrd of lnsi)ectorK of said election of said towushli) of
Wlnsor did not bear the initials of any member of the board of ins[)ectors of
wild election, and did not bear any initials at all.*'
CARNEY VS. SMITH. 15
Your petitioner further shows that be is Inforiued. and believes and so charges
the truth, that all of the ballots counted by the said board of in8|)ector8 of said
election in said township of Winsor for the various candidates for the office of
R<»presentatlve in Congress were void and llleKal ballot?, for the reason that no
one of said ballots, when so counted then and there, had written upon the back
the initials of any member of said Iward of inspectors of said election, and
that nut one of s>'aid ballots so counted had any initials at all of any kind
written upon the back thereof.
That the said board of election inspectors of said township of Winsor did
then and there canvass and count 174 ballots for John M. C. Smith for the office
of Uepreseutalive in Congress, all of which were illegal and void ballots, and
that not one of said 174 ballots, so canvaFse<l and counted for said John M. C.
Suiitb, were indorsed with the initials of any inspector of said election, and
:)]] of 8:1 id bnllots were without any initials at all indorsed uix>n the back
thereof, and that said board of election inspectora did then and there canvass
and count for your i)etitioner, Claude S. Carney, 92 ballots, and that none of
said ballots were indorsed with the initials of any Inspector of said election.
Your petitioner further shows that he is informed and believes that if any
iii>])ector ever wrote his initials ui>on any of the ballots used at said election
«aid initials were written al>ove the perforation on every ballot and upon the
l>erforated corner containing the numl)er of the ballot, and in each and every
instance Siiid initials were torn off each and every ballot before said ballot
was de|X)sited in the ballot box by the inspector in charge of said ballot box,
so that at the time of the canvass of said vote by the said board of election
iun)eetors after the closing of the i}ons none of the said ballots had written or
indorsed thereon any initials of any insi)ector as required by law. and that
inasmuch as the statutes of Michigan provide in express language that '' in
*he canvass of the votes any ballot which is not indorsed with tlie initials of
the ins[)ector8 shall be void and shall not be counted." all of the bnliots Can-
vasseil from the township of Win?or at said election for the various candidates
for Uepresentative in Congress should accordingly be declared void and Illegal,
and should he deducted from the total vote canvassed by the board of county
canvassers of Eaton County for the said various candidates for said office of
Kepresentative In Congress.
Your i)etitloner, therefore, in addition to all other matters prayed for In his
original notice of contest, prays that all of the votes cast for the various candi-
dates for the said office of Representative in Congress for the reasons aforesaid
l)e held illegal and void and of no force or effect whatever.
Claude S. Carney.
State of Michigan, County of Kalamazoo, ss:
On this 22d day of April, 1913, before me, a notary public, i)ersonally appeared
Claude S. Carney, the above-named petitioner, and made oath that he had read
the forgoing amendment by him subscribed: that the same was true, of his
own knowledge, except as to those matters therein stated upon his information
and belief, and as to those matters he believes them to be true.
Orba Stibglitsi,
Notary Public in and for Kalamazoo County, Mich.
My commission expires December 12, 1916.
E. C. Shields.
John W. Adams,
Attorneys for Contestant,
State of Michigan, County of Baton, ««:
R. R. McPeek. of the city of Charlotte, county of Eaton, and State of Michi-
gan, being duly sworn, deposes and says that on the 3d day of February,
A. D. 1913, he served a true copy of the answer to notice of contest, of which
the attached is a copy, personally on Claude S. Caniey, contestant named in
said proceedings, by then and there delivering the same to said Claude S. Car-
ney at the office of said Claude S. Carney In the city of Kalamazoo, in said
State of Michigan.
R. R. McPeek.
Subscribed and sworn to before me this 4th day of February. A. D. 1913.
[seal.] Vaughan G. Griffith, yotary Public.
My commission expires December 10, 1914.
16 CABNEY VS. SMITH.
ANSWER TO NOTICE OF CONTEST.
Sib : Please take notice that the following is a copy of the answer of the con-
testee filed with* the Clerk of the Hoase of Representatives of the United States
in the above-entitled contest.
Yours, etc., J. M. C. Smith, Contestee.
Dated February 1, 1913.
To Claude S. Carney, Contestant,
ANSWER OF JOHN M. C. SMITH, CONTESTEE AND RESPONDENT, TO NOTICE OF INTEN-
TION TO CONTEST BY CLAUDE S. CARNEY, CONTESTANT.
Now comes John M. C. Smith, respondent, and now and at all times hereafter
saving and reserving unto himself all benefit and advantage of exceptions which
can or may be had or taken to the many errors, uncertainties, and other imper-
fections In said notice contained, for answer to the said notice of the Intention
of the said Claude S. Carney to contest the election of respondent, John M. C.
Smith, as a Member of the House of Representatives of the Congress of the
United States at the election held In said third congressional district of the
State of Michigan for said office on the 5th day of November, A. D. 1912, which
said notice was served ui)on the respondent on the 8th day of January, 1913,
following, says :
And among other objections to the said notice of contest the respondent ex-
pressly reserves to himself and does not waive the right to raise the point at
the hearing that the said notice proceeds upon the theory of stating many pro-
visions of the election law of the State of Michigan, and of pointing out in many
precincts certain irregularities and alleged misconduct in the detail work of
several boards of election inspectors at various voting precincts In said congres-
sional district, and wholly falls to allege that the result of the election was lu
any way altered or affected by any of the Irregularities set forth In said notice,
and does not allege that the contestant received a larger number of legal votes
at said election than were given and counted for the respondent.
This respondent admits that the third congressional district of Michigan is
composed of the five counties mentioned In the first paragraph of contestant's
petition, and admits that contestant was the Democratic candidate for Repre-
sentative for Congress for said third congressional district, and that he resides
In the city of Kalamazoo, lu the county of Kalamazoo; and admits that the
respondent was the Republican candidate for Representative for Congress for
said third congressional district at said election, and that he resides in the
city of Charlotte, in said county of Eaton; and alleges that one Edward N.
Diiigley was the candidate of the Progressive Party for Representative for
Congress for said third congressional district at said election, and that he re-
sides In said city of Kalamazoo; and alleges that one Levant L. Rogers was
the candidate for the Socialist Party fop the same office at the said election.
Respondent admits that the result of said election was determined by the
board of State canvassers on the 10th day of December, 1912. That on the
face of the returns as determined by said board of canvassers 14,609 votes were
cast for respondent and 14,482 votes were cast for said contestant; that the
said John M. C. Smith claims a seat in the Sixty-third Congress by a majority
of 127 votes, but denies that the result was brought about by false, fraudulent,
and Illegal returns being made by several of the various inspectors of election
in said district, or by a false counting of ballots, or by corrupt and unlawful
conduct of the various boards of election Inspectors,, officers, or other persons
in any of the various precincts of said district, or by any of the members of
the county canvassers of said district by means of which the contestant was
deprived of his lawful, just, or legal rights in the premises, and denies that the
contestant was justly, lawfully, and legally elected to said office at said elec-
tion ; that he was wrongfully, fraudulently, and unlawfully deprived of his right
in said election to a certificate thereof or to a seat in Congress from the third
congressional district of Michigan, as alleged In said notice; and respondent
alleges that he was legally and lawfully elected to said office and was entitled
to the certificate of election which was issued to him by the board of State
canvassers.
This respondent further answering, alleges that the said election was legal,
fair, honest, and just, and that the said contestant, Claude S. Carney, received
credit for every vote cast for him in the count of ballots, and that there was
CARNEY VS. SMITH. 17
no fraudulent or illegal voting, and that no votes were cast in said district for
r^iwndeut except by lejcal and duly qualified electors residing in the precinct
where the vote was cast: that no vote was counted for respondent that was not
a legal vote; that no fraud, intimidation, or illegal persuasion was used to
affect or change the desire, intention, or purpose of any voter in casting his
ballot for his choice of candidates for such office; that said Edward X. Dingley
the candidate for the Progrej^sive Party for said office at said election, was
determined by said board of State canvassers to have received of the votes at
said election 12,917; that Levant L. Rogers and Levant C. Rogers were the
candidates of the Socialist Party for the same office at the same election and
were determined by said board of State canvassers on said 10th day of Decem-
ber to have received, respectively, 1,737 and 1.009 votes cast for said office, and
that the returns made by the various canvassing boards mentioned in said
noticre of contest are correct.
The resiwndent further says that said contestant has not set up in said notice
of contest a claim that any illegal or spurious votes were cast at said election
for the res[)ondent, nor the number of votes claimed to be illegal or by whom
any such vote was cast; that such answer Is Indefinite, vague, and uncertain
and consists merely of charges of slight irregularities by various election In-
s|)ectors and canvassers without any claim that such irregularities in any way
affected the result of the election, and without any allegations that if the Irregu-
larities alleged had not occurred that the result would have been different from
that finally announced and proclaimed in the several precincts mentioned, and
that such general allegations of irregularitit^s are not sufficient to impeach
said vote or disfranchise the voters In any precinct complained of In said dis-
trict: and further answering the allegations set forth in the notice of contest
in this case, respondent says:
First. Respondent admits that in the conducting of said election it was the
legal duty of the various boards of election inspectors at the various voting
precincts in eaeh county In said congressional district to transmit to the board
of county canvassers of that county statements of the results of their various
re8i)ective precincts of the count made of the votes cast therein at said election,
but respondent alleges that the statement of the law regulating the practice
in those cases as set forth In said notice of contest is misleading, and alleges
that by section 38 of Act No. 214 of the Public Acts of Michigan for 1901 it
is provided that after the count of the tickets or ballots have been completed
by the board of election Inspectors the result shall be publicly declared, and
the statute proceeds in the following manner :
"The Inspectors shall then prepare a statement of the result In duplicate
showing the whole number of votes cast for each office, the names of the per-
sons for whom such votes were given, and the number each person received,
in which statements the whole number of votes given for each office and the
number given for each person shall be written out in words at length. Such
duplicate statements, when certified by the inspectors and duly signed, shall
be delivered to the township or city clerk, and shall by said clerk be, within
24 hours after the result is declared, delivered In person or immediately for-
warded by registered mail, one copy to the board of county canvassers, in care
of the judge or register of probate, and the other, together w*lth one of the
original tally sheets, to the county clerk, which said statements and tally sheets
shall be placed in separate envelopes and sealed by said in8i)ectors before their
delivery to the township or city clerk."
And denies that there are statutoi-y provisions requiring or contemplating
that the sealed envelopes containing the statements and returns wLich are to
be delivered to the county clerk shall be by him delivere<i to the board of
county canvassers and the seals of his mail be broken only by the board of
county canvassers, as alleged in said notice of contest, but resi»ondent alleges
that it is contemplated that the duplicate coi>y which is mailed to the county
clerk shall be by him opened and the statements and returns filed in his office
and become then and there a public reconl. subject to exaniination by any Inter-
ested i>erson; and that the duplicate copy which is mailed or delivered to the
board of county canvassers either in person or by mail in care of the judge
or register of probate, is the mail of the board of county canvassers and may
be by said board opened when the same shall be delivereil to said board of
county canvassers.
Respondent further alleges that by the provisions of section 4 of act No.
43 of the public acts of Michigan for 1905 the board of county canvassers shall
286—13 2
18 CABNEY VS. SMITH.
proceed without delay to canvass the return of votes cast for all candidates for
office voted for and all other »iuestions voted on at said election according to
the returns filed in the office of the countv clerk bv the several boards of
election insi)ector9 at the various voting precincts in the county. And the board
has its own duplicate of the returns which is delivered to it in person by the
Judge or register of probate, with which it can verify the returns on file in
the office of the countj' clerk. Respondent also raises the point that the no-
tice of contest makes no pretense that the election returns received by the
county clerk were in anywise altered, changed, or tampered with.
Respondent further til leges that the judge of probate for said county of
Eaton deliveretl to said board of county canvassers the duplicate copy for-
warded to said board of county canvassers in charge of the judge or register
of probate of said county from each election precinct of said coimty, and
alleges that said board of county canvassers itself broke the seals of said
duplicate returns and considered the same in coimection with the returns on
file in the said office of the county clerk of said county. Respondent denies
the allegation in said notice of contest that none of sjiid statements of the
result of said election in said county of Eaton were delivered under the seal
of the respective boards of the election insiiectors to the said board of county
canvassers on the Siiid date fixed by law for the first meeting of said bonrd of
county canvassers, but says that all of its statements of the result of said
election in said county of Eaton, being a statement from each of the voting
precincts in said county, were delivered under the senl of the respective boards
of election insi)ectors by the judge of the probnte court in said county of Eaton
to the board of county canvassers on the said day fixed by law for the first
meeting of said board of said county canvassers; and denies that after snid
statements were sealed in their respective envelopes, or shortly after said
election, or before the time fixed by law for the first meeting of the board of
county canvassers the said election Inspectors' ^eals on Siiid envelopes ad-
dressed to said board of county canvassers containing the statements and re-
turns, as well as said envelopes themselves, were willfully and unlawfully
broken, said statements removed from said envelopes and delivered over to
the various individuals, including the resiwndent and one John Davis, of Battle
Creek, Mich., one of the Republican congressional committeemen " and one of
the political campaign managers of siiid John >r. C. Smith in said district,"
and denies that John Davis, of Battle Cre(%, Mich., was one of the Republican
congressional committeemen of said district, and says that the envelopes
which were sealed and forwarded by mail to said county clerk, containing a
duplicate statement of the results of siiid election, were opened by said county
clerk and the statement's taken therefrom and filetl in his office, as is contem-
plated by law, and became public records of his office and were subject to
examination by the public in general; but, further answering, denies that the
respondent or said John Davis or any other i)erson was given free, unlimited,
and private access thereto; and denies that any i)arty interested in the elec-
tion of said John M. C. Smith was permitted before tlie meeting of the board
of county canvassers to remove or did remove any of sjild statements from
the office of sa4d c<mnty clerk, who was the lawful custodian thereof, and
denies that one William Smith, a son of the respondent, ever sjiw, handled, or
removed from the oflice of said county clerk any of those statements, and
denies that any opportunity was thus wrongfully, corruptly, willfully, unlaw-
fully, or intentionally given to the respondent or to those interested in his
election to unlawfully change and alter said statements and returns, and
denies that John C. Nichols, the county clerk of Eaton County, unlawfully con-
nived and conspired with the said John M. C. Smith and William Smith, said
John Davis or other persons interesteil in securing the election of the re-
spondent, by unlawfully permitting said statements to be manipulated before said
meeting of the board of county canvassers, but says that the respective returns
and statements from the several boards of election inspectors from the various
precincts in said county were addressed, mailed, sealed, and delivered to the
county clerk for said county of Eaton, and that said John C. Nichols was then
and there the county clerk of said county of Eatim. and that he received said
returns and statements inclosed in secure envelopes and sealed, mailed, and
delivered to him by tlie said several boards of eltHHion insi)ectors, as is re-
quired by law, and opened the same to ascertain what was contained in the
envelopes, as he had the lawful right to do, they being addressed to him
officially, and recorded and filed said returns and statements of election,
CARNEY VS. SMITH. 19
whereby they became public records in his office: and tliat Siiid statements
and returns were written in inli and now sliow that they have not been altere<l.
changed, or tampered* with since they were made out by the respective boards
of election inspectors, and that said returns are of such a nature, character, and
form that they could not be altered, cliauged, or tampered with wltliout being
discernible to the naked eye. And said retuins never have been altered,
changed, or tampered with and were by the board of county canvassers com-
pare! with the duplicate returns and statements delivered to them under seal
and found to be duplicates of the set which had been delivered to said l)oard
of county canvassers by said judge.
Respondent alleges that said notice of conte^Jt is not fair in the statement of
the law r^ulating the practice relative to these returns and that it is inten-
tionally misleading in secreting and suppressing the f^ct that a dui)lirate set
of the required returns and statements of results had been seale<l, mailed, and
delivered to said board of county canvassers in care of the Judge or register
of probate; and there is no allegation in the notice of contest that any altera-
tion had ever been made to effect the integrity of the statements and returns
on file with the county clerk.
Resiwndent further denies that the statements on file in the r:aton County
clerk's office, and delivered personally to said board of county canvassers by
the judge of probate for sild county, form no basis for the lawful canvass of
saitl ballots of said county for the office of Representative In Congress; that the
breaking of the seals and opening of the envelopes containing siiid statements
before the meeting of the county canvassers of said county made said s'tatements
of no validity in law and of no legal force and effect, and furnish no basis
whatever on which to predicate any claimed election of resi)ondont, and made
the votes and ballots for Representative in Congress in sjiid county illegal and
%'oid and of no more force and efl'eit than if sjiid ballots had never been cast,
as alleged in sjiid notice of contest: but admits th.it the canvass of «iid votes
in said coimty of Eaton gave to resijondent a plurality ov€»r tbe contestant of
912 votes.
Resiioudent further alleges that it is the general i)ractice in counti<^ within
said third congressional district, also throughout this State, that when
the statements and returns of tlie results of election are forwardeil to the
county clerk personally, as required by law, the county clerk ininicdiately oi>ens
the envelopes containing such statements, and tliey are placed (m file as required
by law and are open to the insi)ectlon of any interested person; while the
envelopes containing the duplicates of sm-h statements and returns which are
sealed and forwarded to the board of county canvassers in care of the judge
and register of probate, are preserved intact and delivered by the judge or
register of probate to tlie l)oard of county canvassers personally when it con-
venes on the day appointed by law for tlielr convening; and resi)ondent further
alleges that this was the practice pursued at this election in the counties of
Branch, Calhoun, and Hillsdale in said congressional district, and alleges that
the county of Kalamazoo in said district was the only county In which the
clerk did not open his mail and remove the statements from the several
enveloi>es and place the same on file, subject to public inspei'tion, before the
convening of the board of county canvassers.
Second. Respondent admits that on the face of the returns of the election in
the township of Sunfleld, in said county of Eaton, he was given 70 votes more
than the contestant, but denies that the ele<!tion in said township of Sunfield
was void and a fraud ui)on the rights of the contt^tant. and denies tliat it was
unlawfully, illegally, and wrongfully conducted to the great prejudice of the
contestant's right in the i)remises.
1. Respondent denies that the mandatory provisions of the Michigan election
law make it the clear duty of one of the ijisjiectors of said election to keep
possession of the ballots and to hand them to the voters after another inspector
has opened the package of ballots, and still another had put his Initials upon
said ballot; and denies that in plain violation of such alleged mandatory pro-
vision of the law of Michigan said ballots were then and there wrongfully and
willfully placed in the hands of one Albert Sayer. who wjis then and there
called upon and permitted by sjiid board of insin^ctors to act as instructor to
said voters; and denies that the ballots were illegally distributed to the voters
or that any of the officers of said board of election insi)ectors was then and
there placed in a compartment by himself out of the view and hearing of all
of the board of inspectors in sjiid i>reclnct at said election; and denies that
20 CABNEY VS. SMITH.
said Albert Sayer mentioned in said notice of contest was not tlien and there
an inspector of said election; and denies that there wq,s no legal authority
to call in said Sayer to act as instructor or a« officer of ssiid board of said
election inspectors; and denies that there was no legal right to make said
Albert Sayer one of the officers of said board of election inspectors, and to
give him the right to handle then and there said ballots and deliver them to the
voters as needed; and denies that any ballots were delivered to the voters at
such precinct when the voters were without the railing of the voting precincts
as provided by law; and denies that said Sayer was given any opportunity to
converse with the voters privately; and denies that he did so converse with the
voters in private within the railing of the voting room out of the hearing of
the board of inspectors; and denies that said Sayer used any improper means
whatever in the interest of this respondent, and says that the election was
conducted in the precinct in question in one room and all of the officers con-
necte<l with such election and the voting booths were within one room.
2. Respondent jidniits that about the hour of 12 o'clock noon on said election
day said board of insiiectors adjourned for at least one hour, and says that it
was within their legal right so to do. Respondent admits that two ballot boxes
were used on said day in said voting precinct for the purpose of receiving and
containing the l>allots cast for Representative in Congress at said election; but
denies that when said election board was adjourned for noon each and all of
said inspectors, clerks, and all others who were then assisting said board in
siiid electlpn, left said voting place at the same time and left the Siiid two
ballot boxes and the ballots therein in said voting place unsealed and unlocked
without any precaution or measure being taken, as is required by law at the
time of said adjournment, to prevent fraudulent tampering with said ballot
boxes; and denies that one Z. Slater, a gatekeei>er at siiid election, was unlaw-
fully, for at least one hour, given custody of and free access to the ballot boxes
and the ballots therein, and also of the uncast and unvoted ballots which were
in said voting place, and of the poll list kept at said election.
3. Respondent denies that the count of said ballots in the township of Sun-
fleld was not made by the board of iusiiectors of said election as required by
law, but alleges that every legal ballot cast at this precinct for the office of
Congressman was correctly counted and tallied: and alleges that respondent
received 70 legal votes more than the contestant received at this precinct;
and respondent further says that the inspectors of the election at the precinct
in Sunfield were Democrats and were opi)osed to the election of resi>ondent,
and were in favor of and voted for the contestant and the conduct of th«5
election in this precinct was In the hands of Democrats who were adverse to
the election of resiwndent. and that if any irregularities were designedly prac-
ticed by the board in this precinct, it was for the purpose of invalidating the
votes which the electors cast for the resi)ondent. Respondent alleges that when
the votes were counted at this precinct by a board which was adverse to him-
self, and the members of which board were arguing In favor of the election
of contestant, the board should not by its act be allowed to disfranchise the
electors who had voted for resiwndent by omitting some of the directory pro-
visions of the election law and enable the contestant to procure the throwing
out of this vote; respondent denies that the election board during said count
left their posts and permitted third parties who had no legal or lawful right
whatever so to do, to wrongfully and corruptly act as counters and tally clerks
in the place of the lawful members of said election board, and denies that said
Albert Sayer among others was then and there i)ermitted to act as one of the
counters of said ballots without any authority so to do or that one William R.
Witherall was pei-mitted to act on said election board, or was permitte<i to act
or did so act in ])lace of one of tlie legal memi)ers of said board, or that he was
unlawfully allowe<l to and did then and there handle the ballots, statements,
and tally books and kept and made any illegal tally, but alleges that if any
other person did assist In the keeping or in making said count, the same was
not done in the interest of resjHuident, but was done by those who were opposed
to respondent as iwlitical partisans.
Resiwndent denies that one Joel Bera was acting as an inspector of election
at this precinct, and denies that he had been campaigning for respondent dur-
ing the day of election, and denies that said Joel Bera was actively engaged
throughout said election in promoting and aiding respondent; and denies that
he acted as an insiKK?tor of said election; and denies that any lawful vote then
and there cast for the contestant was not credited to the contestant in the
CABNEY VS. SMITH. 21
tally and count, which should have been credited to him ; and denies that any
Yotes were credited to respondent which were not cast for him.
Respondent alleges that said Joel Bera was entirely neutral on the day of the
election; that the township clerk of said township is a son-in-law of said Joel
Bera: that said township clerk had apr»ointed Joel Bera as his deputy clerk,
and that said Joel Bera for a long time previous to said election was the
deputy township clerk for sMid township of Sunfield; that said township clerk
was temporarily^ called from his post on said election board during the counting
of the ballots and he called his deputy, said Joel Bera, to take his place tor a
time, and that the work performed by said Joel Bera on said board in place of
the township clerk was simply clerical work in tall>ing the vote as given to him
by one of the Inspectors of election; that two clerks were employed keeping
duplicate tally sheets; and that tliey were checked and kept under the eye of
Jthe inspectors of election and the general public, which by the Michigan law
had the right to be present and watch the counting; and that the count was
legal and correctly kept by the cierks of said election, and that Joel Bera only
acted in the ()lace of the township clerk for a limited period of time on the
morning of November 6, while the township clerk was absent from the board ;
and respondent denies that said Joel Bera on said election day was personally
interested or actively engaged througtiout said election in promoting and aiding
the resi)oudent in his election.
4. Respondent admits that the election laws of Michigan provide that imme^
diately upon closing the ballots the board shall proceed to canvass the yotes,
but alleges that said law is directory only as to the steps of counting the ballots,
and that the legally qualified voters can not be disfranchised because of any
departure from such directory regulation in not counting said votes within the
time or as directed by said statute where no injury is shown to result therefrom,
and this respondent denies that mild board of Inspectors in the township of
8uu field imlawfully permitted outsiders to assist in carrying on the count of
the vote or tlmt the said board of inspectors did publicly announce the adjourn-
ment of its proceedings at about the hour of 12 o'clock midnight until 7 o'cUx-k
the next morning, or that all of the members of stiid board at 12 o'clock mid-
night of said election day blew out the lights or placed said iK>lling place lu
darkness, or that it went away from said polling place leaving the ballot boxes
unsealed or unlocked, or that designing persons could easily tamper with
said ballot boxes, or that several members of said election board adjourned to
the barber shop or remained away for three-quarters of an hour, or thnt upon
adjournment at the time several of the members went to bed, but alleges the
truth to be that the chairman of said election board, the supervisor in said
township of Suufleld, one John Palmer, one of the Democratic members of said
board, refused to continue to count said ballot, claiming that he was exhausted,
and sat in the corner of the room and slei)t while the other members continued
the canvassing and counting of said vote and finally insisted on going home at
»lK)ut the hour of 12 o'clock midnight: that thereupon one of the inspectors
telephoned to the prosecuting attorney of said county of Eaton in the city of
Charlotte for the purpose of obtaining advice from sald.ofllce as to whether
an adjournment of the count might be taken and had, and obtained the advice
that the board should continue the count; that said John Palmer was then
notified by the balance of the board of the advice given by the prosecuting
attorney and notified that the board would continue the counting of the ballots
and was requested to return to the voting place where such count was being
uiade by the balance of the board of Inspectors, but that said Jobn Palmer,
Democratic chairman and supervisor, as aforesaid, absolutely refused to remain
or return, claiming that he was tired out and could work no longer; that there-
upon the remaining members of the board reconvened; that another Democratic
member, Frank U. Bacon, became 111 to such an extent that he died within two
weeks after such election day. and. although there was dlfllculty in keeping
such election board together, this respondent denies that there was any fraud
practiced, any illegal voting done, or any ballots cast by other than legally
qualified voters residing in the township of Sunfield. and that all the voten
so cast for said contestant were counted for him: that the contestant rereived
his full quota of all such ballots, and that no ballots were In any way counted
for this respondent that were not cast in his favor by legal resident voters of
said township, and denies that there were any votes cast for contestant that
were counted for this respondent: and alleges that contestant received every
vote cast for him at such election, and that the result of such election was In
22 CARNEY VS. SMITH.
« no ways changed by reason of the coDduct, actings, or doings of said board
or of any other person, and alleges that the act of said Democratic members of
said election board In their attempt to obtain advice as to whether they could
adjourn, or in the action of the chairman of said board in retiring to his home
for sleep and refreshment, were in no way in the interest of this respondent.
This respondent further answering denies that the ballots or ballot boxes
in said voting precinct were tampered with by any person whomsoever, or that
there are any tainted or illegal votes among the votes cast for this respondent
in this precinct, and declares that such election was fair and just in all particu-
lars, and that the rights and interests of contestant were safeguarded and pro-
tected upon all sides by the election officers who were then and there favorable
to the contestant and willing to do all they could legally do to aid and assist the
election of contestant, and insists that the action of the Democratic members
upon said board should not be allowed to disfranchise the votes cast by the
legal citizens and voters of this township in favor of the respondent. This
respondent further answering says that the proper, necessary, and legal
announcement was made as to the opening and closing of the polls, and de-
nies that none of said board of inspectors of said township of Sunfleld were
continually present during the canvass of the votes.
This respondent denies that the canvass of said votes in said precinct was
not a public canvass, or that It was fraudulent or Illegal or void; or that at
P o'clock a. m. on the 6th day of November, 1912, said board disbanded without
first having made a statement and declaration of the result of said election in
said precinct as required by law; this respondent further answering denies
that the members of said election board agreed among themselves to meet at
the office of said Frank H. Bacon (one of the Democratic members of said board
of Inspectors at said election) for the purpose of making out and signing the
statements of the result of said election, or that the statements of the result of
said election w^ere brought to the office of said Bacon already made out; or
that the statements were not made out in the presence of the board of in-
spectors; or that the said board of inspectors signed said statements without
knowing whether the statements were true or false; or without knowing
whether said statements gave the correct count of the results ot the vote cast
in said precinct for the office of Representative in Congress; and denies that
said statements were fraudulent, or that there was any fraud in dating the
statements on the day of election instead of the day on which the count was
concluded ; and alleges that the inspectors are not required by the law to make
the statements and returns immediately on closing of the count, but alleges
that the law requires that such statements and returns be made within 24
hours after the public declaration of the result; and alleges that there is no
particular place mentioned where such statements and returns are required to
be made; and alleges that it would not invalidate said returns providing they
are finally correct if they were made out and signed at different places within
the polling places, or in any adjoining rooms, or even if they had been on this
occasion made out by clerks who prepared the returns and statements and laid
them before the board for their ratification at the office of the justice of the
peace, said Frank H. Bacon, at any time within 24 hours after their public
announcement of the result of the election. Respondent alleges that the only
material inquiry is as to whether the statements and returns were true, and
there is no allegation in tlie notice of contest of any known false statement in
any one of the returns and statements from this precinct. Respondent further
alleges that such returns were made out correctly and contained a correct state-
ment of the entire vote of such precinct, and such statements are signed by the
Democratic members of the board who were then and there politically opposed
to the election of respondent. Respondent further denies that the statements
were falsely dated November 5, 1912, for the purpose of concealing the unlaw-
ful conduct of said election board; and denies that if said statements and re-
turns were not made out until the forenoon of November 6, 1912, the act of the
board in dating the statements and returns November 5, 1912, was Illegal, and
alleges that said act was wholly immaterial and that the time of making out and
dating such statements and returns is wholly immaterial as It appears that in
any event the statements and returns were made out within the time limited
by law, which is 24 hours after public announcement of the result of the elec-
tion. Respondent further denies that the said board of Inspectors did not pub-
licly declare the result of said election and the number of votes received by
each person who was a candidate for Representative in Congress, as required
by law.
GABNEY VS. SMITH. 23
Third. Respondent admits that in tlie township of Carmel, in the county of
Eaton, on the face of the returns tlie hoard of election Insfiectors gave to
i-espondent 55 votes more than to contestant : but denies that said returns were
illegal and wholly void, and says that the ballots cast for the respondent in said
township of Cannel were ballots legally cast by the qualified electors of said
township for the respondent and that no more votes were given to him by the
board of election inspectors tiian were actually and legally cast for him by the
legally qualified electors of said township, and that said contestant received
full credit for everj' vote which was legally cast for him at said ele<'tion of said
township of Carmel. Respondent alleges that an emergency arose in said town-
ship which was not foreseen by the township officers The ballot for officers
voted for at this election was a very large paper, and by 2 o'clock in the after-
noon of said election day the ballot box in which were deposited the ballots
given for officers was so filled that no more Ballots could be pressed into the
box, and voters were present desiring and offering to vote; and upon a dis-
cussion of the question it w^as agreed that the board might open the ballot box
and empty the ballots upon a table and replace the box for the rect^ption of
ballots from the voters and that the balloting should proceed, and the ballots
removed should then be counted by one of the inspectors, aided by two responsi-
ble and law-abiding citizens, selected as nonpartisan for that purpose, and that
the ballots should be so canvassed and counted and credited to the proper
officers of each ticket, and that when the polls should close the bayots there-
after cast should be counted and added to the votes, to make a correct count of
the entire number of votes cast for each officer during the whole of the day.
Some Of the leading Democrats of the township of Carmel and elsewhere were
present and had full knowledge of the agreement, and no one in that township
objected to the proceedings, whicli in that emergency seemed the only way that
could be invented at the time to enable the remaining voters desiring to vote to
deposit their ballots; the residents surroiniding the i)olls at the time, no matter
what party they belonged to, were law-abiding, reliable citizens and all electors
of Carmel township, and no one had any thought of creating any fraud or
wronging any candidate whose name appeared upon any one of the tickets,
and the count was absolutely fair and correct and in no way could be alleged
to be in the interest of this respondent. The respondent alleges that the rights
of himself and the rights of the contestant were as carefully looked after and
the vote as carefully canvassed for each as in any precinct in the district. And
this respondent had no one present at that election who was ajipoiuted, em-
ployed, or engaged by him to represent him at such voting place during the day
of election. Respondent alleges that there was an entire absence of fraud in
the conduct of said election, and that the action of the board did not create
any advantage in his favor, and denies that there was any fraud committed by
said board in the canvass of said votes, and denies that said contestant was
in any way injured, prejudiced, or defrauded in any way of his right or of a
single vote because of such premature count. Respondent further denies that
in violation of the law said board called new men within the railing who had no
right or authority to handle the ballots, or that any such men, with one of the
inspectors, at the hour of 2 o'clock p. m. did commerce to count the ballots
while the election was being carried on, and alleges that the action so taken
by said board of Inspectors was not illegal and was not taken in the interest
of tills respondent any more than in tl>e interest of the contestant ; that all
action was taken by agreement, as aforesaid, and under the circumstances the
law will not invalidate their acts and allow them to thus disfranchise the legal
electors of said township of Carmel. And respondent admits that the townsiiip
of Carmel and the voting place thereof is situated about 3 miles from the city
of Charlotte, where the respondent resides, and about 50 miles from the city
of Kalamazoo, where contestant resides; but alleges the trutli to be that the
contestant was well known and advertised in said township, and that he had
made an active campaign through the said county as the Democratic candidate
for Representative in Congress, and that he had at such polling i)lace in sjiid
township of Carmel representatives looking after his interest during the elec-
tion, and that this respondent had no heljK^rs employed, engaged, or authorized
by him at such place to represent himself or to look after his interest in said
election, and that respondent knew nothing whatever as to the proceedings had
by said board and was not in any manner a j)arty to the conduct of the election
board in carrying on said election; and denies that the act of said board in
prematurely canvassing the votes cast by the electors at such voting place, if
any such act occurred, in any manner increased the number of votes of this
24 CARNEY VS. SMITH.
respondent or In any manner prejudiced the rights of said contestant. And
ros|H>ndent fnrtl^er denies that the canvasrlng of the votes cast by the electors
of said township was not performed by the board of insi)ectors, or that said
board of inspectors never canvassed the vote In said precinct or never counted
the ballots so cast, or that the returns or statements of votes made by said
inspectors were not made upon their own knowledge, and denies that the
returns of said election were void or of no legal effect. The respondent further
states that one Rosslyn L. Sowers was one of the political managers In Eaton
CJounty for said contestant, and that he made speeches for him throughout the
district and has resided in the city of Charlotte for a number of years, and
that prior thereto he resided in said township of Carmel and was well ac-
quainted with all the voters In said township, and that the interests of said
contestant were well represented in such township both at the poUs and prlo»-
thereto.
Fourth. This respondent denies that in violation of the rights of contestant
and tlie laws of the State of Michigan that on numerous occasions or upon
any occasion while the election was in progress on November 5 in said con-
gressional district, in the precincts of Carmel, Bellevue, Benton, Eaton, Roxand,
Windsor, First, Second, Third, and Fourth wards of the city of Charlotte,
certain of the Inspectors in the resyiective voting precincts wrongfully, wilfully,
or unlawfully entered the voting booths with several of the voters or with
any of the voters while said voters were in the booths preparing their ballots;
and denies that said inspectors did not, before entering the booths or at any
other time, require the voters who could not read the English language to make
oath that they could not read or were physically unable to mark their ballots,
or that said voters did not appear to said insi)ectors before entering the booths
to be unable to mark their ballots, or that It was not made manifest to the
inspectors that the voter was under a disability such as to make him unable
to mark his ballot : and that no Inspector entered the bcx^h to assist the voter
in any manner in these precincts when not in the presence of the challengers
of each political \)i\rty having challengers at such voting place and in strict con-
formity to the requirements of section 3642 of the Compiled Laws of 1897 of
the State of Michigan: and respondent alleges that the allegations in this para-
graph of the notice of contact is so general and indefinite that it i^ hard to
negative any specific act; and he denies that any of the board of election in-
spectors in any of the voting precincts mentioned In this paragraph did at any
time during this election enter the booths and assist in markng the ballots or
In any way urge a voter to vote upon any particular ticket for any officer on
the ballot: and denies that any act of any inspector of election in any of the
precincts named Induced any voter to cast a vote for resi>ondent or in rny
way affected the result of said election.
Fifth. This resix>ndent admits that John C. Nichols is an attorney at law,
residing in the city of Charlotte, and was a candidate on the county ticket of
Eaton County for the office of circuit court commissioner at the election on
November 5, 1912. and that he was i>ersonally present in the voting place In
the second ward In the city of Charlotte on election day. but denies that he
was then and there promoting the interest of or endeavoring to secure the elec-
tion of this resi)ondent or that said Nichols then and there soliciteil or at-
tempted to persuade any of the legal voters in said precinct to vote for this
respondent. This respondent admits tliat said Nichols was the chjillenger for
the Uepubllcan Party In the second ward of the city of Charlotte, which se-
cured him a i>08ition inside the railing of said polling i)lace, and alleges th t
he has the legal right to act as such challenger: and that there is nothing in
the statutes of Michigan which prohibited him from acting as a challenger
for his i)arty if legally appointed to that place: but respondent denies that said
Nichols acted as inspector of election, or as clerk of the elet^ion, or as any
kind of election officer in said precinct at said election except as challenger, as
aforesaid. This respondent denies that said Nichols had no right to be within
the railing for not other purpose than casting his vote, or not exceeding five
minutes. This resiK)ndent denies that the presence of said Nichols within said
railing of said precinct was fraudulent, wrong, or illegal, or that the acts of
said Nichols in said voting place as aforesaid in any way invalidated the votes
erst therein or that his action as such challenger Invalidated the ballots cast
thereat. Re.si^ondent alleges that by section 34 of the charter of the city of
Charlotte, wliich was Act No. 379 of the local acts of Michigan for tbe year
1S95. the two aldermen of each ward shall constitute the board of insi)ectors
CARNEY VS. SMITH. 25
of election for their respectiTe wards at all elections, and such board is em-
powered to appoint such number of clerks, gate keepers, and officers as shall
be necessary to comply with the election laws of the State. At the election in
question the second ward of the city of Charlotte held its election In the lobby
in the basement of the courthouse, and the space for the officers and the voting
booths was very much restricted, and the two insi)ectors of election had to
stand close together, one of the Inspectors delivering the ballots to the voters
and the voter passing by him Into the booths and returning into the same In-
closure, handing their ballots to the other inspector, who deposited the ballot
in the box. The challengers were also In this small Inclosnre, and the iu-
8{)ectors and challengers stood within the railing together. The clerks of the
election and gate keepers were also within this raillBg; the booths were of
canvas, and every word that would be uttered by any of the officers could be
plainly and easily heard at all places within the railing, and likewise the
delivery of the ballots and the depositing of the ballots were within the view
of all the people surrounding the booths. By a regulation of the city of Char-
lotte the entire members of the board are not permitted to adjourn at noon,
but are obliged to keep the polls open from the morning bour until 5 o'clock
p. m. ; that during the progress of the election one of the inspectors, an alder-
man of the second ward, H. A. Hamilton, was taken violently ill while the
booths were full of voters, and other voters were pressing for admission ; the
other inspector had all he could do to pass out the ballots as the voters re-
quired them and more than he could attend to at the same time to deposit
the ballots of tlie voters as they came out of the booths after his coinspector
left the polling place on account of his severe and sudden Illness; the remnin-
ing inspector, Claude C. Knowles. an alderman of the second ward. siK)ke to
said Jolm C. Nichols, who was standing close by him and the ballot box, and
asked him to receive the ballots from the voters, call out the names, and de-
posit the ballots in the ballot box, which was in plain view of the officers of
election and the public there assembled, while the alderman sent for a com-
petent man to take the place of the inspector, Alderman Hamilton, who went
to bis home on account of illness, and within a very few minutes secured and
appointed a competent citizen, one Roy Barber, as insiiector, and he wns sworn
in as Inspector of election and took bis place at once in the place of Alderman
Hamilton; and the snld John i\ Nichols only received n very few ballots, and
never opened or examined a ballot or performed any act other than to deiK)sIt
the ballot In the ballot X)OX In the presence of Alderman Knowles, under his
eyesight, and In presence of the remaining officers of the board, the challengers
of the respective parties, and the general public at large. Respondent alleges
that said John C. Nichols had no opportunity whatever to manipulate, change,
or alter, examine, or open any ballot which he deposited or which he received
In his hand. Respondent alleges that Ernest (». Pray, who has been county
clerk of the county of Ejiton, was nominated by primary election as the candi-
date fbr representative in the State legislature upon the Republican ticket;
prior to said election he resigned as county clerk because of a constitutional
provision which prohibits him from holding that office while holding any county
office; and that John C. Nichols had been deputy county clerk for some time
under said Eftiest G. Pray as clerk of said county, and that John C Nichols
had been deputy county clerk for preceding county clerks and was familiar
with the business required of the county clerk In the courts and In county
business generally; and that the circuit Judge of the county of Eaton forth-
with appointed said John C. Nichols as county clerk in i)lace of Ernest (J. Pray,
resigned, and on said election day said John C. Nichols was then and there
the duly qualified and acting county clerk of said county; but this res^wndent
denies that there was any illegal or designed scheme between said Pray and
said John C. Nichols in the making of said resignation and ai>polntment, and
denies that such appointment of said John C. Nichols as county clerk was done
for the purpose of promoting the Interest of John M. C. Smith as candidate
for the office of Representative In Congress, and denies that it gave said
John M. C. Smith in any way, directly or Indirectly, any advantage In his
candidacy for such office, and denies that It gave any advantage to him to
have the said John C. Nichols have the custody of the sealed envelojies contain-
ing the election statements and returns of the several boards of inspectors of
the various precincts of said county for the board of county canvassers, giving
said Nichols the opportunity by the abuse of said secretly acquired office of
having access to said sealed enveloi)e8 containing the statements and returns
which were in his custody as county clerk, for It became the duty of said
26 CARNEY VS. SMITH.
John C. Nichols, on receipt of said returns, to immediately malce them public
by opening the sealed envelopes and placing the returns on file, where they
became public documents and were open to inspection to the friends or political
enemies of the respondent, and they were documents directed to said John C.
Nichols as county clerk of said county, and no advantage could be taken of
his having custody of those statements and returns, for duplicates were in the
hands of the judge or register of the probate court, which were to be delivered
by such officers to said board of county canvassers on the first day of their
meeting as aforesaid, and there was no opportunity whatever for anyone to
change a figure or line of said statements or returns without its being imme-
diately visible and easily corrected by a comparison with the duplicates be-
longing to the board of county canvassers. Respondent denies that John O.
Nichols appeared before said board of county canvassers and acted as repre-
sentative for said respondent, but says that said John C. Nichols was ex officio
clerk of said board of county canvassers and was in no way appearing in the
interest of this respondent.
Sixth. Kes[)oudent admits that in said election in the township of Hamlin, in
said county of Eaton, the respondent was given 10 votes more than the con-
testant by the board of election inspectors of said township; but denies that
the election in said townahij) of Hamlin or the returns were void or a fraud
upon the rights of contestant, or that said election or the canvass of votes
therein was by the board of inspectors unlawfully, Illegally, and wrongfully .
conducted, or that said contestant was in any manner prejudiced thereby of
his right in the premises. Respondent denies that the election inspectors of
said township ignored or violated the law in the conduct of said election, or in
the counting of the votes therein; or that after counting a portion of the ballots
cast at such election at 12 o'clock, midnight on sjiid election day, adjourned the
canvassing of the remaining votes cast at such election until the forenoon of
Wednesday, the Gth di«y of November, 1912, without any legal right to so
adjourn, or that the board of election inspectors or any members thereof at the
hour of 12 o'clock, midnight of said election day, went away from said polling
place and left the ballot boxes unsealed or unlocked, or did then and there
leav€» the ballots oMst for the oflice of ReI)re^entative in Congress imi)rotected
«nd exi)osed. or did then and there take no precaution to protect said ballots
from being wrongfully and fraudulently tampered with; or that one of the
members of Siiid bonrd of election inspectors illegally returned to the polling
place Jind proceeded to count and canvass the balance of the ballots in private,
or did then and there handle any of the ballots or tally sheets used in said
precinct in private for one hour or during any other length of time while no
other member of said board of election inspectors or any other person was
present in said polling place. Respondent alleges that Ancil Holmes is the
supervisor of said township of Ilnmlin. and as such officer is ex officio chair-
man of the board of election inspectors, and that said Ancil Holmes is a Demo-
crat and was politically opi)osed to the election of respondent, and that no
action of the township board could or would be taken to give respondent any
adviintage in the counting of the ballots as between himself and contestant;
and that all action taken by said l>oard of election inspectors was in every
instance taken upon the advice and direction of the chairman thereof, said
Ancil Holmes.
This respondent further alleges that the ballots cast in sjild township of
Hamlin were all cast by legally qualified electors in said township, and that
said contestant was credited with all votes cast for him, and that respondent
was credited with no votes cast for contestant; and that the returns made by
said board of insijcctors were proper and contained a correct statement of the
ballots cast for contestant and for respondent, and that the contestant was not
deprived of a single vote or any of his rights in the premises on account of the
acts and doings, or conduct of said board of inspectors in said township of
Hamlin, and that even if an adjournment was had, no injury or fraud resulted
tlierefrom and none of the rights of the contestant were infringed upon, and
the same would not in any way invalidate the votes or disfranchise the voters
of said township of Hamlin.
Seventh. This respondent denies that prior to said election held November
5, 1912, in and throughout said county of Eaton, in said congressional district,
an agreement was entered into by and between certain members of the Repub-
lican Party and certain members of the Republican committee in and of said
county, with certain members of the Progressive Party and members of certain
CARNEY VS. SMITH. 27
conimittees of said Progressive Party in said county of E2aton, whereby it was
agreed that the Republican Party would not bring any speakers into said
county of Eaton during the political campaign preceding said election to make
speeches for and on behalf of the reelection of President Taft on the Republican
ticket, in consideration of which it was further agreed between the aforesaid
parties that the ProgresslYe Party would support the entire Republican county
ticket in said county, and would also support this respondent for Representative
in Congress at said election November 5, 1912 ; and denies that for the purpose
of seeing that the members of the Progressive Party did support the candi-
dates for the various county ofBces, in said county of Elaton and this respond-
ent for Representative in Congress in said election, various of the Inspectors
and other officers of said election precincts in said county of Eaton, and par-
ticularly in the second and tliird precincts of the city of Charlotte, in said
county of Eaton, on said election day, did urge upon divers and sundry voters in
said precincts, and in said two precincts last above mentioned, the aforesaid
agreement, and by such means and other unlawful means exerted on said elec-
tion day upon divers and sundry voters in said various election precincts, and
within the railing within the voting place wrongful, persuasive, and fraudulent
means were used for and on behalf of this respondent, to the detriment, loss,
and injury in said election of said contestant, or in violation of the laws of
the State of Michigan, as alleged in said notice of contest; and denies that for
the purpose of seeing that the aforesaid agreement was being performed by the
members of the said Progressive Party in the various precincts hereinbefore in
the notice of contest alleged, certain of the said inspectors of election and mem-
bers of the election boards, or other persons, did and were i)ermltted to talk
within the said railing to voters before casting their ballots in said various
election places, or with certain other voters within the booths in said election
places, before said voters marked the ballots which they subsequently cast at
said election, as alleged in said notice of contest. Respondent further denies
that there were any such acts or doings on the part of said inspectors, members
and officers of said election board and others, or that there was any permission
for improper talk with said voters within the railing and in the booths of said
election place and places in said county of Eaton, which were in violrjtioii of
law or which invalidated the ballots oast in said precinct at said election, which
made all the ballots cast for the said resfiondent for Representative in ronjrn'ss.
and which were cast for him at sjiid election In said precincts abs4)hitely null
and void, as the said contestant has in the seventh subdivision of his said
notice of contest alleged.
And resi)ondent further answering alleges that all of the sinvikers of the
Republican Party in said county of Eaton dnrine the campaign of 1912, notably
United States Senator William Alden Smith. Hon. Washingt(»n (Gardner. States
Senator William M. Smith, Hon. Grant Fellows, attorney general of Michi^'an.
Judge Kelly S. Searl, Hon. Patrick H. Kelley, Congressman at large from Michi-
gan, Hon. Colon P. Campbell, in their several talks and speeches thnniL'li said
county of £^ton advocated the reelection of President Taft.
Respondent further alleges that the Republican county connnittee for the
county of Eaton carried on an active and vigorous campaign es])eclally di-
rected to the support and reelection of President Taft. and caused to be pn>-
pared an exi)en8ive campaign banner, which was suspende<l across the main
business street of the city of Charlotte during the last few weeks ])receding
said election, upon which was a large picture of President Taft surrounde*! by
the following words: "Vote for Taft and continue prosperity." and ui»on the
other end of the banner was also a picture of Hon. Amos S. Musselnian. Repub-
lican candidate for governor. And the said committee distributed literature
throughout said county explaining the policies of President Taft and urjring his
reelection.
Respondent further alleges that he campaigned the county of Eaton and the
entire third congressional district of Michigan during the fall of 11)12 in behalf
of the Republican Party and of his own candidacy, and gave his best eft*r)rts in
supporting and advocating the reelection of President Taft and the entire
Republican ticket, and advised all former Republicans to support the entire
Republican ticket instead of giving any support to any part of the Progressive
or Democratic tickets. Respondent further alleges, upon information and be-
lief, that there was a close agreement and understanding between the con-
testant and Hon. Edward N. Dingley, his fellow townsman, who was then and
there a candidate at said election for Representative from said third congres-
28 CARNEY VS. SMITH.
8ional district on the Progressive Party ticket; that the said contestant and
the said Edward N. Dlngley should aid and assist each other in their respective
campaigns against this respondent, and alleges that the said contestant furnished
the use of his own automobile to said Edward N. Dlngley for the latter to use
in conducting his campaign for said office through said congressional district,
which said action of the said contestant and the said Edward N. Dinglej was
certainly no advantage to this respondent, but was intended to defeat this
respondent if they could accomplish this result by such collusive agreement
and understanding. Respondent further alleges that in carrying out tliis
scheme said Edward N. Dingley made a vigorous campaign in the counties of
said congressional district, and made speeches in nearly every election precinct
in the county of Eaton, and made a strong personal campaign in said county
of Eaton and urged all of the Republicans to whom he could gain access to sup-
port the Progressive ticket and especially to support him, said Dingley, for the
office of Representative in Congress for said third congressional district, with
the result that he carried the county of Hillsdale and reduced the majorities
of this ree^ndent in every county in the district, and in the county of ESaton
said Edward N. Dingley received, as shown by the returns of said election.
1,405 votes. This respondent further alleges that at the election for Repre-
sentative in Congress for snid third congressional district, in November, 1910.
Hon. Nathaniel H. Stewart, the Democratic candidate for that office, was given
2,159 votes in said county of Eaton, while in the election of 1912, in the same
county, the contestant, with two principal opponents, was given 2,390 votes, as
shown by said notice of contest
This respondent further alleges that the Hon. Edward N. Dlngley at said
election on November 5, 1912, was given the following votes in the respective
counties of the district, viz: Kalamazoo, 3,465; Calhoun. 3,863; Eaton, 1,405;
Branch. 1.551 ; Hillsdale, 2,623 ; total, 12.907.
Eighth. In answer to subdivision eighth of said notice of contest, this re-
spondent denies each and every allegation of irregularity in conducting the elec-
tion and counting the vote on November 5, 1912, in the said precinct of Union
City, in the county of Branch, in said congressional district, and denies that the
board of election inspectors in that pre<rinct, after commencing to canvass and
count the ballots cast in said precinct at said election, made any adjournment
or abandoned the polling precinct or left the ballot boxes and all the ballots
cast at said election and the tally and poll books used by said board without any
precautions to protect the same, but alleges that when said board of election
inspectors, at 5 o'clock p. ni., on the 5th day of November, 1912. at the close of
said election, announced the closing of the polls. It forthwith began to canvass
and count the ballots cast at said election, and continued said canvass and
count without interruption or adjournment and without any member of said
board leaving the canvass and count until all the ballots cast at said election
were canvassed and counted, and then and there said board did announce and
publicly declare the results of said election, and did then and there without Inter-
ruption or adjournment forthwith prepare a statement of the result in duplicate
of said election, showing the whole num!)er of votes cast for each office, the
names of the persons for whom such votes were given, and the number each
person received, in which statements the whole number of votes given for the
office of Representative in Congress for the third congressional district of
Michigan and the number of votes given for each candidate was written out
in words at length, and which statements when so prepared were duly certified
and signeti by said inspectors of election and delivered to the township clerk,
who within 24 hours after the result of such election was declared forwarded
by registered mall one copy to the board of county canvassers In care of the
Judge or register of probate, and the other duplicate copy, together with one of
the original tally sheets, to the county clerk of said county of Branch, which
said duplicate statements and tally sheets were placed in separate envelopes
and sealed by said inspectors before their delivery to the township clerk as
aforesaid. And this respondent further alleges that all of the acts and doings
of said board of election ins|)ectors at said election. In the counting and can-
vassing of the ballots, annuonclng and declaring the results of the election, mak-
ing out, executing and delivering the required statements, preparing the sealed
packages, fully conformed to all statutory' requirements and regulations gov-
enilng this part of the proceedings. Respondent admits that the said state-
ments of the votes ciist at said election In said precinct gave to the respondent
67 votes more than were given to the contestant, and says that no more votes
OABlfl^Y VS. SMITH. 29
were glyen to said respondent than were legally cast for bim at said election
by the legally qnalified electors of snid township.
Ninth. In answer to subdivision ninth of said notice of contest, this respon-
dent admits that the first returns of the election board of the second precinct
of the second ward of the city of Battle Creek, in the county of Calhoun, showed
that only 31 votes were cast for this respondent and 23 votes for the contestant,
but alleges that it was evident from the face of the returns that many votes
bad been omitted by mistake from such returns, for it appeared from the tally
sheets accompanying said returns that more votes had been cast for this re-
spondent and said contestant than were stated In the returns, whereuixm the
board of county canvassers, after examining such returns, poll books, and tally
sheets, determined, in its judgment that the returns already made in said case
were incorrect and incomplete, and, acting under the provisions of section 4
of act No. 43 of the Public Acts of Michigan, of 11)05, said board of county
canvassers did then and there summon the board of election ins))ectors of said
second precinct of the second ward of said city of Battle Creek to api)ear before
the said board of county canvassers with the ballot boxes, keys, seals, returns,
poll books, tally sheets, the ballots cast at said election, and pai)er8 used and
made at such election: and said board of election insijectors. obeying said sum-
mons, did api)ear before s«iid l)oard of county canvassers having with it the
boxes containing the ballots cast at said election, the keys and seals of said
boxes, and the returns, poll books, tally sheets, and papers used and made at
such election, from which the incorrect returns had been made; and thereupon
said board of election insi)ectors, acting under the express command and sum-
mons of said board of county canvassers, and being expressly authorized by
it 90 to do, did then and there open said ballot boxes and take therefrom all
the books and papers therein contained bearing uiwn the count and return of
S}»id election insi>e<-tors of Kuch ele<*tion, but did not remove or mark any of
the ballots therein: and said board of election insiKHt(»rs, under the rtvpilre-
ments and authority of said board of county canvassers and under the provi-
sions of said statute, did make and complete a correct return of the votes cast
in said precinct at such ele<»tion for the office of Representative in Congress for
the third congressional district of the State of Michigan, by which corren't re-
turns it npi>eare<l that resiK)ndent received 97 votes and the contestant only
received 61 votes for such office. And resiwndent alleges that he was not given
credit in said corrected returns for any ballot whicli was not legally cast for
him in said precinct by a legally qualifie<l voter thereof.
Respondent admits that said board of county canvassers made their state-
ment and return as to this precinct based upon said corrected returns there-
from and alleges that, under the law cited, they had no discretion to do other-
wise. The reFix>ndent alleges that said notice of contest was unfair in that it
concealed the fact that the corrected returns were made under the command
and direction of the said board of county canvassers, which was expressly
authorized and compelled to proceed in the premises as it did.
Tenth. Respondent admits that in the canvass and return of the votes cast
at said election in the townsliij) of (Mimax. In the county of Kalamnzoo. there
was an apparent discrepancy; that the number of votes credited to the candi-
dates for the office of Representative in Congress was less than the total
number of votes shown to have been cast by the tally books; but respondent
denies that the number of votes alleged to have been omitted from the count
was 49: respondent further alleges that when the board of county canvassers
ctaiveued and procee<led to canvass the returns from said township of Climax
the board discovered that there was an apparent error in the returns and that
some ballots must be missing from the vote given for the office of Representa-
tive in Congress, and discussed the matter of proceeding under the statute cited
in the preceding paragraph and expressed the opinion that it should sunmmn
before it the board of election inspectors from said township of Climax, with
the boxes containing the ballots cast at said election, the keys and seals of said
boxes, and the poll book, tally sheets, returns and papers used and made at
such elections, and require such board of election Inspectors . to correct its
returns. Respondent further alleges that said contestant was then and there
present and objected to said board of county canvassers taking any such action,
and threatened said boaiHi of county canvassers with legal prosec!ution if it
proceeded to take any action to have said returns corrected, and insisted that
said board had no legal power to order said board of election inspectors to
eome before it, and that said board of county canvassers had no legal authority
80 • CARNEY VS. SMITH.
to order said board of election inspectors to open said ballot boxes or to proceed
to reooniit said ballots, and absolutely forbrde said board of county canvassers
to take any such action. Respondent further alleges that he was not given
credit in this precinct for any votes which had not been legally cast for him
at said election by the legally qualified electors of said precinct; and respondent
denies that 35 votes were cast in said precinct for the contestant which were
not credited to and counted for said contestant.
Eleventh. Respondent admits that the results show the votes cast resiiectively
for respondent and contestant are as set forth in subdivision eleventh of said
notice of contest, except that respondent alleges that the returns do not corre-
.s}M>ud with siiid notice of contest in the precincts of Sunfleld. second precinct
Fecond ward of IJattle Creek, and Tnion City .
And this respondent further answering said notice of contest says that the
same irregularities that are set up in said notice occurred in the other counties
of the district in the election precincts where the contestant received his ma-
jorities, and, applying the same rule the contestant seeks to have applied to the
several precincts of Eaton County, to have rejected and thrown out the votes
cast for this respondent, many more votes than those objected to by the con-
testant in his notice would have to be deducted from the votes accredited to
the contestant.
Kalamazoo County. — For instance, the said county of Kalamazoo, in which
the contestant resides, has a large foreign population, and very many voters
were instructed within the booths and assisted in marking their ballots by the
several inspectors of election and others on niunerous occjislons while said elec-
tion was being conducteii on sijid fith day of November, 1M12, in said third con-
gressional district in stiid county of Kalamazoo in each of the following several
election precincts, to wit, the second precinct of the township of Comstock,
Cooi)er, township of Kalamazoo. Ross. Schoolcraft (first precinct), Texas,
Wakeshnia. Alano. Brady (first precinct), Brady (second precinct), Charleston,
and tlie first, second, third, fourth, sixth, seventh, ninth, tenth, eleventh, twelfth,
thirteenth, and fourteenth election precincts of the city of Kalamazoo, in all of
which election precincts the election boards respectively returned to the board of
county canvassers of said county of Kalamazoo nmre votes for said contestant
than for this respondent, and in each one of said election precincts certain of
the Inspectors therein entered the election booth with several of the voters and
while said voters were in said booth i)reparlng their ballot were present and
assisted in preparing such ballot: that in no instance dnrlnp said election did
any of said Inspectors before entering sjiid booth or at any other time require
said voters or any one of them to make oath that they (sjild voter or voters)
could not read the Englisli language, nor did said inspectors i-equire any one of
said voters to make oath that he (said voter) was physically unable to mark
Ills ballot, nor was any voter with whom said inspectors entered said booth
ap|)arently unable to mark his ballot: that the acts of said inspectors in so as
aforesaid entering any booth with any such voter witliout administering the
required oath gave the opportunity for said insixjctors or other persons to scru-
tinize said ballot and learn for whom said voter was casting his ballot, and
gave siiid Inspectors the opportunity to Influence said voter to vote as the said
Inspectors desired, and If any votes for this respondent are rejected and thrown
out for like reasons In said county of Eaton this respondent alleges that these
votes cast for the contestant In these election precincts of said county of Kala-
mazoo should also be rejected and thrown out, and this respondent requests that
the same may be done.
Respondent further shows that said contestant by the returns from these sev-
eral precincts In said county of Kalamazoo was given 720 votes more than
were given to this respondent, which, for reasons above given, should be de-
ducted from the total vote given sjild contestant in said district.
Calhoun County. — Respondent further alleges that while said election for
Representative In Congress for said third congressional district of Michigan was
being conducted In the second ward of the city of Marshall, in the county of
Calhoun. In said district, one Jay Hatch, who was then and there a candidate
at said election for prosecuting attorney on the national Progressive ticket, and
who then and there claimed to be one of the official challengers of said Pro-
gressne Party, but who was not then and there a member of the board of elec-
tion Inspectors of said election precinct, did then and there, without any legal
authority, enter a voting booth with a voter and remain therein until said
elector had prepared his ballot, he, said Jay Hatch, having an opportunity to
CARNEY VS. SMITH. 31
watch said voter prepare his ballot, and which ballot, when so i)repared, said
voter presented to one of the insi>eetors of election for voting, and which ballot
said inspector of election deiwsited in the ballot box ; and said board of election
insijectors did not require said voter to take the necessary ojith nor did said
voter make oath before entering said booth with said Jay Hatch, or at any
other time, that he, said voter, could not rejid the English language or that he
was physically unable to mark his ballot, nor was said voter then and there
apparently unable to mark his ballot ; and the said board of election insi)ectorB
Ijermitted said Jay Hatch to thus unlawfully enter said booth with such voter;
and respondent alleges that other instances occurred in this election precinct of
like nature where said board of election inspt^ctors i)ormitted other voters to
enter the booth and permitted other |>erson8, without legal right, to enter said
tKK3th with such voters to assist said voters in marking their ballots, and in no
case was the voter required to make the necessary oath to warrant him any
assistance in the marking of his ballot, which act and acts of said board of
ele<:tion inspectors, under the rules invoked by the contestant, vitiated and would
make void said election in said election precinct, and the respective statements
and returns to the board of county canvassers of said county of (^alhonn void
and of no legal force and effect; and resix)ndent further alleges that by the
i-etunis said contestant received in this election precinct 114 votes, the respond-
ent received 71 A-otes, and said Edward X. Dingley receive<l 62 votes, and if the
contention of contestant is upheld, then the vote from this election precinct
should be rejected and thrown out under like rules cited by the contestant.
And the respondent alleges that no oath was admin istereil to the voters given
assistance in marking their ballots in the first, second, and fourth wards of the
dty of Albion, in said county of Calhoun, In which precincts contestant re-
ceived a plurality of 27 votes in the first, 49 in the second, and 0.5 In the fourth
wards of said city, and under the rule invoked by ct)iitestant the votes of these
several wards should be rejected and thrown out.
Hillsdale County. — ^And this resjioudent, further answering, alleges that the
same i)ractice was followed in Hillsdale County in relation to the disposition of
the several statements and returns from the several boards of election Inspec-
tors to the board of county canvassers in said election held in said district on
said 5th day of November, 1012, as was pursued in Siiid county of Eaton.
F'irst. The said several boards of election ins-jiectors in said county of Hills-
dale, in each election jn-eclnct thereof, nr s:ild chH-tlon. made out the recpiired
statements and returns of said election in duplicate, and incloj<(»d them In
separate envelopes under their respective seals and forward(»d them by mail or
delivered the same in i)erson, one copy to the board of county canvassers in the
care of the judge of probate and the jther copy to the c(»unty clerk of said
county.
Second. The county clerk of Hillsdale County. Frank O. Hancoclx. upon the
receipt of the respective returns at once opened them all and tabulated them
ready to be used by the board of county canvasstM-s when it shoul«l convene to
canvass the votes, and said returns were then and there public records in the
ollice of the said county clerk and oi)en to the inspection and examination of
any interested person, and were examined and inspe<*ted by representatives of
newspapers and the public generally, and applying the same rule and i)rocedure
that is requested by contestant in his notice of contest tlie returns from said
county of Hillsdale should be hold to be illegal and the votes given to the
rMiiitestant by those returns should be rejected and thrown asi<le. And re-
siwndent further alleges that by the returns of the board of county canvassers
of sjiid county of Hillsdale said contestant was given 2,242 votes, respondent
].sn7 votes, and Edward N. Dingley 2.023 votes, thus giving the contestant 345
votes more than were given to this respondent in said county of Hillsdale.
Third. Further answering respondent says that it appears l)y the said noti<'e
of contest and in this answer that when any elwtion board adjourns, it Is
directed by the election laws of Michigan to seal the ballot box, and the key
to be delivere<i to one of the insi>ectors. the box to another, and the seal to
another, but alleges that in township of Allen in wiid (M)unty of Hillsdale, at
Jslid election, when the board of ele<rtion lnsi)ectors adjourned for the noon liour
the ballot box was not sealed as required by law and the key was not delivere<i
to one of the Inspectors, the box to another, and the seal to another, but as a
matter of fact said board adjourned for one hour and took the ballot box with
them out of the polling place to the place where they had dinner, and the box
was left in its condition of being unsealed without any protection to prevent
32 CARNEY VS. SMITH.
tampering with the ballots. Kesiwndeut further alleges that the law provides
that to seal a ballot box a plwe of leather or canvas shall be so placed as to
extend from the opening? of the lid of said ballot box to the keyhole in such
a manner as to completely cover both such holes, and the same securely
fastene<l thereoii with sealiup wax, and stanu)ed with the official election seal
of the voting precinct, such piece of leather or canvas and the sealing wax to
be arranjre<l so hs to render it imjmssible to open either of said holes without
breaking said seal. Respondent alleges that this statutory- precaution was not
obeyed by the election ius|)ectors of the township of Allen, and the unused
ballots of siiid electi(m were not properly and legally protected, so that design-
ing persons had tlie o|)portuiilty to easily tami^er with the ballot box and with
the unused ballots. An<l resiwndent further alleges that said board of elec-
tion inspectors by its returns to the board of county canvnssers of said county
of Hillsdiile gave to said contestant IS votes more than it gave to this respond-
ent. Tlie respondent further alleges that applying the same rules invoked by
the contestant the vote of this precinct should be excluded.
Fourth. This respondent further answering alleges that in the townshli) of
Wright in said county of Hillsthile. at said election, the board of election in-
spe<*tors therein did adjourn one hour for dinner, and, like the board of election
insiK»ctors for the township of Allen, did not seal the bnllot boxes 6ut said
bill lot boxes and the unused ballots were left during the noon hour in care
of some person other than an i!isi>ector, and that by the returns of snid board
of election inspectors to the said bojird of county canvassers of said county of
Hillsdale said ccmtestJiut was given 117 votes more than were given to this
respondent. Kesiwndent therefore alleges that under the rules mentioned, in-
voked by the contestant in his notice of contest the election in this precinct
was wholly void and should be exdudetl from c<msideratlon In the computation
of the votes given for the ottice of Representative in Congress from the said
third congressional district.
Fifth. This respondent further answering alleges that in the township of
Woodbridge in said county of Hillsdale, at said election, the board of election
inspe<*tors therein did sidjourn one hour for dinner, but did not seal the ballot
boxes and dispose of them as re(piiretl by law, and did not for the protection of
said ballot boxes and the ballots imused lock said boxes and seal the same
and deliver the box to one inspector, the key to another, and tJie seal to another,
but the polling place was left unprotected, so that designing i)ersons had the
opimrtunity to tami)er with the ballot box and unusetl ballots, and that by its
returns to the board of county canvassers of said county of Hillsdale sjiid
contestant was given a majority of 43 of the votes cast. Respondent therefore
alleges that under the rules mentioned, invoked by the contestant in his notice
of contest', tlie election in this precinct was wliolly void and should be ex-
clude<l from consideration in the comjnitaticm of the v(Jtes given for the olHce
of Rei)resentative in (Vmgress from the stiid third congressional district
Sixth. This respondent further answering alleges that In the townshii* of
Cambria in siiid Hillsdale County, at said election, the board of election In-
si»ectors therein took a noon adjournment and <lid not comply with the re-
quirements as to sealing the ballot box, but simply locked the box with tlie
tally sheets inclose<l and went away and left the ballot box alone in the build-
ing, simply locking the outer door of the building and taking no legal precau-
tions for the prottK^tion of the ballot boxes ov unused ballots, so that designing
I)ers<ms had the opportunity to easily tamper with the ballot box and with the
unused ballots; that by the returns of said Ixmrd of election insi>ectors to the
said board of county canvassers i)f said county of Hillsdale, said contestant
was given ()5 votes more than were given to this respondent. Respondent there-
fore alleges that under the rules invoked by the contestant in his notice of
contest the election in this precinct was wholly void and should be excluded
from consiileration in the computation of the votes given for the othce of
Rei)resentative in C/ongress from said third congressional district.
And resrK)ndent further alleges that as a further reason for excluding from
consideration Uie votes given at this election precinct, one D. Payne, who was
not then and there a member of said board of election inspectors, nor even a
clerk thereof, and with no legal authority so to do, assisted in counting the
ballots and keeping the tally sheets. • ,,.,.*..
Seventh, This respondent, further answering, alleges that in the township
of Camden, in said county of Hillsdale, at said election, after the polls closed
at 5 o'clock and the canvass and count of the votes began, the board of election
inspectors therein allowed and permitted the public promiscuously to enter
CABNEY VS. SldlTH. 33
within the railing where the count was being conducted, and was then and
there given the opportunity to discuss the count and give suggestions which
materially affected the result of said election, and by the returns of said board
of election iusi^ectors to the said board of county canvassers of said county of
Hillsdale said contestant was given 23 votes more than were given to this
resi)ondent. Respondent therefore alleges that under the rules invoked by con-
testant In his notice of contest the election in this precinct was wholly vitiated
and made void and should be excluded from consideration in the computation
of the votes given for the office of Representative in Congress from said third
cougressional district.
Eighth. This respondent, further answering, alleges that in the township of
Moscow, in said county of Hillsdale, at said election, after the polls were closed
at 5 o'clock p. m. the board of election insi>ectors therein began to count and
canvass the votes cast at said election; that one Art. Smith, then and there
one of said Insi^ectors of election, became ill or otherwise unable to assist in
making the count; still he attempted to help count the votes, whereupon one
Fred Rice, who was then and there an entire outsider and not one of said board
of election in8i)ectors, nor a ck»rk thereof, and wholly without any legal au-
thority so to do, came in behind the railing and assisted said Art. Smith in
o«;uuting said votes; that said board of election inspectors adjourned for
supi)er, but after supper said election inspector Art. Smith did not return and
assist in counting the votes; that after the supper hour the counting of the
votes was resumed and the two clerks of the election board assisted the in-
siicctors in the handling and counting of the ballots, and afterwards made put
the returns and statements of the result of the election, and the said Art.
Smith returned and signed the returns as such election inspector, but without
Laving any knowledge of what the returns contained and without being able
to comprehend the result of said election. Wherefore under the rules invoked
by the contestant in his notice of contest, said statements were made and
signed by said board of election inspectors without its knowing whether said
statements gave the correct count of the result of the votes cast in said pre-
cinct at said election for the office of Representative in Congress for said third
congressional district, yet it appears by the returns of said board of election
Inspectors to said board of county canvassers of SiUd county of Hillsdale that
57 more votes were given to said contestant than were given to this respondent.
Respondent therefore alleges that under the rules invoked by the contestant In
his notice of contest the election in this precinct was wholly vitiated and made
void and should be excluded from consideration in the computation of the
votes given for the office of Representative in Congress from said third con-
gressional district.
Ninth. This resi^ondent, further answering, alleges that in the township of
Somerset, in said Hillsdale Cotmty, at said election, the board of election in-
RIKJCtors pemiitted and allowed voters to be accompanied into the booth and
to be assisted in having their ballots marked without requiring said voters to
make any oath as to the necessity of such assistance as required by law, and
permitted voters to have their ballots marked while in the booth, but not in
the presence of any insi)ector of election, and, among other voters, one Eugene
Vnn Camp received a ballot from Siiid election board and went into the voting
booth accompanied by persons who were not members of the board of election
insi^ectors, and had assistance rendered him, and his ballot was finally marked
and he voted it. but the ballot was not marked in the presence of any inspector
of election, neither was he required by said board of election inspectors, before
entering said booth or at any other time, to make oath as to the nivesaity of
his needing assistance in tlie marking of his ballot; that in this election pre-
cinct the regular ballot box, which was provided with a lock and key as re-
quired by law, became filled with ballots, and during the day the board con-
structed a temporary ballot box, using a dry goods or shoe box in which to
receive the ballots, but said temporary box was not provided with a lock and
key and there was nothing to hinder designing persons at any time from open-
ing this temr>orary box and removing ballots therefrom or substituting ballots
In place of those which had been lawfully cast, neither were any precautions
taken to protect said temporary box from being tampered with by any design-
ing person. Respondent also alleges that it appears by the returns of said
board of election inspectori? to said board of county canvassers of said county
of Hillsdale that in this precinct 30 more votes were given to contestant than
were given to this respondent. Resi)ondent alleges that the loose and illegal
2S6— 13 3
84
CARNEY VS. SMITH.
practices of said board of election Inspectors tainted this election at this pre-
cinct with suspicion, in that the ballots cast were marked in the presence of
those who were not members of the board and when not in the presence of any
Inspector of said board and open to the scrutiny of those who had the oppor-
tunity to urge the voter to vote for any particular candidate for Representative
In Congress favored by such outsider, and the ballots being deposited in a box
not conforming to the requirements of the law were subject to be withdrawn,
altered, or tampered with by any designing persons. Respondent therefore
alleges that under the rules invoked by the contestant in his notice of contest
the election in this precinct was wholly vitiateil and made void and should
be excluded from consideration in the computation of the votes given for the
office of Represeqtative in Congress from said third congressional district
Tenth. This respondent, further answering, alleges that In the township of
Reading, in said county of Hillsdale, at said election, the election was held in
the second story of the engine house, which upper room was the voting room
of said election in that precinct, and in violation of the plain provision of the
law voters who claimed to be physically incompetent to go upstairs to vote
remained in the street and had the ballots brought out into the street to them,
and were permitted to mark their ballots at the foot of the stairs on the side-
walk, and some of the inspectors attended these voters and after the ballots
were marked these inspectors carried the ballots upstairs and deposited them
in the ballot box while said voters were not in the voting room. Respondent
alleges further with reference to this voting precinct that in the morning when
the election started a number of men were i)ermitted to cast their votes therein
who were not registered in the said township of Reading and who had no legal
right to vote at said election because they were not lawfully registered voters;
these men were claiming the right to vote because they were registered voters
in the village of Reading for village elections, although they were not registered
voters within tlie township of Reading eligible to vote at said congressional
election; that said board after discussing this matter for a time refused to
receive further votes from those who were not registered in the township regis-
tration book, but many of these illegal votes had been received and placed in
the ballot box by said board of election inspectors.
Resi)ondent further alleges that in this precinct, when said board of election
Inspectors proceeded to count the ballots, an outsider, who was not a member of
said board of election inspectors, but who was gatekeeper at this precinct,
helped and assisted in handling the ballots and counting the votes.
And respondent further alleges with rospe<*t to this precinct that during
the hours while the eUK'tion was proceeding the first ballot box was filled,
and said board of election ln8i>ectors, deeming another box necessary. Improvlstvl
one out of a shoe or dry-goods box, which had no lock upon It. and used that
box for the reception of ballots during the day, and the box was not locked
and there was nothing to prevent any designing person opening said box at
any time and substituting ballots for those which had been legally deposited
therein.
And resp(mdent further alleges with respect to this precinct that said board
of election Insi^ectors adjourned for dinner at noon and left said voting pre-
cinct and did not before leaving the voting place lock or seal the ballot boxes
nor take any precautions to prevent the same being opened by any designing
person, and thus full opportunity was afforded for any designing person to
open the ballot boxes and remove or change any ballots already cast or sub-
stitute spurious ballots in place of those which had been deixisited In said boxes
by said board of election inspectors: neither were any precautions taken to pro-
tect said temporary ballot box or said ballot l)ox upon which there was no lock
from being opened or tampered with in the absence of said board of election
inspectors during said adjournment. Respondent further alleges that It appears
by the returns of said board of election Inspectors to Siild board of county
canvassers of said county of Hillsdale that in this precinct 61 more votes were
given to the contestant than were given to this respondent.
ResiHjndent therefore alleges that under the rules Invoked by the contestant
in his notice of contest the election In this said precinct was wholly vitiated
and made void and should be excluded from consideration In the computation
from the vote given for the office of Representative in Congress from said third
congressional district.
Respondent denies that the contestant Is entitled to the relief prayed for In
bis Fald petition and notice of contest or any relief in the premises, and alleges
CABNEY VS. SMITH. 35
that said election in each and every election precinct complained of in said no-
tice of contest was fair and honest; that this re8i)ondent was duly and legally
elected; that the certificate of election was properly based upon a clear plu-
rality of the legal votes cast at such election and represents the will of the
electors of said congressional district; and that the petition of contestant should
be dismissed.
Dated this 1st day of February, A. D. 1913.
J. M. C. Smith,
Content ee and Respondent
Horace S. Mavnabd.
Attorney for Contesiee.
W. H. Fbankhauser,
Attorney for Contestcc,
Grant Fellows.
Of Counsel for Contestee.
OBJECTIONS TO THE AMEyDMENT OF CONTESTANTIS NOTICE OF
CONTEST.
Mi':
To the House of Representatives in the Congress of the United States:
First. Now comes the resiwndent and contestant, John M. C. Smith, and
objects to the printing or consideration of any testimony of any matter, fact or
circumstance not specifically stated and set forth In the notice of contest filed
by the contestant in this case.
Second. And contestee further objects to the printing or consideration of
testimony taken upon rebuttal of any matter, fact, or circumstance not stated
in the original notice of contest filed herein.
John M. C. Smith, Contestee.
July 2, 1913.
It is stipulated between and by the undersigned attorneys for the respective
parties to this proceeding as follows :
First. That each and every witness who was produced as appears by tho
foregoing typewritten record was duly sworn and his and her testimony was
just as and when given on the witness stand taken down in shorthand by
Joseph W. Stockwell, United States commissioner for the western district of
Michigan and notary public in the State of Michigan, and by said commissioner
and notary public all of said testimony was written out by typewriter machine
as appears by foregoing record ; that the foregoing record correc tly shows the
testimony as given by each and every witness and the whole of the proceedings
bad and taken before Sfiid commissioner and notary, Joseph W, Stockwell.
Secrond. The fact that said testimony was stenographically taken and then
written out by typewriter, and the fact that the testimony of each witness was
not written out from the shorthand notes in his (her) presence, and in his
(her) presence read over to or by him (her) and then signed by him (her), is
liereby expressly waived.
Third. That the foregoing depositions may be used for any purpose of this
contest, subject to all objections and motions appearing on the foregoing record,
with like effect and purposes, as if they and all things in relation to them fully
complied with all the requirements of the Revised Statutes of the United States
and the rules, printed or otherwise, of the Committee on Elections in the House
of Representatives applicable thereto.
Fourth. That Joseph W. Stockwell, the officer before whom all depositions
were taken in this contest, was before and during the taking thereof and now is
a irnited States commissioner and notary public authorizetl to take depositions
in civil actions by the laws of the I.'nited Spates and by the laws of the State
of Michigan at the times and places the depositions herewith returned were
laken. and that proof of the otflclal character of such officer, Joseph W. Stock-
well, is hereby waived.
Fifth. That all formalities and likewise irregularities, if any, in the notices
for the taking of testimony and the service thereof and In bringing witnesses
before the officer, Joseph W. Stockwell, who took the testimony hi this contest,
is hereby waived.
Sixth. That all. If any, irregularities In the manner of certifying to and
returning the depositions taken in this contest to the Clerk of the House of
Representatives of the United States are hereby waived.
36 CARNEY VS.. SMITH.
Seventli. That each and every stipulation appearing upon the foregoing record
shall be as binding and effective as if each such stipulation had been made iu
writing and signed by the papers to this contest or by their respective attorneys,
but no objection appearing on the record Is waived or lessened in effect by this
stipulation.
Dated April 30, 1913.
E. C. Shields,
John W. Adams,
Attorneys for Contestant.
HoBACE S. Maynard,
W. H. Frankhauser,
Grant Fellows,
Attorneys for Cmitestvc.
To Horace S. Maynard and W. H. Frankhauser, attorneys for contest ee and
respondent :
Mease take notice that on the 18th day of February, 1913, at the law office of
llyn L. Sowers, in the city of Charlotte, county of Eaton and State of Michi-
r, at the hour of 10 o'clock In the forenoon of said day, testimony will be
taken by and on behalf of the contestant in the above-entitled cause by depo-
sition before Joseph W. Stockwell, United States commissioner in and for the
western district of the State of Michigan and said third congressional district,
of the following witnesses:
Samuel Robinson, E. G. Davids, F. M. Overniyer, F. B. Johnson, George
Gardner, S. H. Sleater, R. L. Sowers, Jackson Mosier, Frank Ford, Louis J.
Dann, Myron Hawkins, James Brown, Frank P. Towne, Walter Sutherland,
Fred Milbourn, Charlotte; Sylvester Franks, John Palmer, William Witherall,
Sunfleld; E. A. Johnson, S. B. Eavans, Bellevue; Julius Ells, Cortez Cushing,
Carmel Township.
Also please take notice that the taking of said testimony may be adjourned
from day to day.
Dated February 13, 1913.
Claude S. Carney, Contestant.
John W. Adams, Attorney for Contestant,
State of Michigan, Covnty of Eaton^ ss:
Claude S. Carney, being personally sworn, says that on the 13th day of Feb-
ruary, A. D. 1913, at the city of Charlotte, in the county of Eaton, and in the
third congressional district of Michigan, he served a notice in w^rltlng, of
which the within is an exact duplicate, upon Horace S. Maynard, an agent and
attorney of the wi thin-named John M. C. Smith, the contestee, by then and
there delivering to the said Horace S. Maynard in person an exact duplicate of
the within notice.
Charles S. Carney.
Subscribed and sworn to before me this 18th day of February, A. D. 1913.
Jos. W. Stockwell,
Notary PuWCj Kalamazoo County, Mich.
My commission expires July 8, 1913.
DEPOSITIONS OF WITNESSES.
Taken before Joseph \\\ Stockwell, United States commissioner, at the court-
house In the city of Charlotte, county of Eaton, State of Michigan, on behalf
of the contestant, Claude S. Carney, on February 18 and 19, A. D. 1013. pur-
suant to the notice hereunto annexed.
Appearances : John W. Adams and E. C. Shields, for Claude S. Carney, con-
testant; Horace S. Maynard, W. H. FrankhauFer. and Grant Fellows, for John
M. C. Smith. contoHtee and respondent.
Mr. Adams. I suppose it may be stipulated on the record that we convened
at the place mentioned in the notice and that we adjourned to the super^'isors*
room in the courthouse in the city of Charlotte, Eaton County, Mich., that being
the most convenient place for the taking of the depositions.
Mr. Maynard. Yes.
Mr. Adams. We offer In evidence the proof of service of the taking of these
depositions on this date as a part of the record.
CABNEY VS. SMITH. 37
SAMUBL ROBINSON, being by me first duly sworn to testify to the truth,
the whole truth, and nothing but the truth, testified as follows :
Direct examination by Mr. Adams :
Q. Mr. Robinson, where do you reside? — A. Charlotte.
Q. What is your age?— A. I was 38 last October.
Q. How long have you lived at Charlotte? — ^A. All my life.
Q. Charlotte is in Eaton County in the third congressional district of Michi-
gan?—A. Yes, sir.
Q. Were you in Charlotte on the 5th day of November, 1912? — ^A. Yes, sir.
Q. Were you in Charlotte on the 6th, 7th, 8th, and 9th of November, 1912?—
A. Yes, sir.
Q. The general election, including the election of congressmen, was held in
the county of Eaton on the 5th day of November, 1912, was it not? — ^A. Yes, sir.
Q. Did you take any part in that election? — ^A. I was secretary of the Demo-
cratic county committee.
Q. What ward of the city of Charlotte did you live in on the 6th day of
November? — A. In the first ward. •
Q. Where was the county clerk's office located in the county of Eaton on the
5th, 6th, 7th, 8th, and 9th of November, 1912? — ^A. In the northeast comer of
the courthouse.
Q. The courthouse is locatedi in the city of Charlotte? — ^A. Yes, sir.
Q. And was then? — ^A. Yes, sir.
Q. Did you visit the office of the county clerk of Eaton County at any time
after the election within the next two or three days? — ^A. Yes, sir.
Q. When first, after the 5th day of November, as far as you can recollect,
did you visit the county clerk's office in the courthouse of Eaton County? — ^A.
Well, sir, I think it was the next morning — ^November 6.
Q. Whom did you find in the clerk's office at that time, if anybody?— A. Well,
there were quite a number present — Mr. E. G. Pray, John C. Nichols, and John
M. 0. Smith.
Q. The Republican candidate for Congress on the Republican ticket? — ^A.
Yes, sir.
Q. Who else? — A. I presume there were, perhaps, 15 or 20 there.
Q. What were they doing? — A. Why, they were going through the returns
at that time, that is, what I mean, they were getting the returns from the dif-
ferent precincts throughout the county by phone, trying to get the returns in
shape ; that is, it had not been decided at that time ; in fact, there were a num-
ber of precincts that had not been heard from.
Q. Did you at any time within two or three days, or four days^ to make it
broad enough, see any of the election returns from the various precincts or any
of the precincts in the county of Eaton in the county clerk's office? I mean the
¥n'Itten returns? — ^A. Yes, sir.
Q. When first did you see any of those of the election that was held on the
5th day of November, 1912?— A. Well, sir, I think either on the 7th or 8th, I
am not certain it was the 8th, but I am positive it was on the 7th.
Q. What time on the day when you first saw those written returns did you
see them — the first time after the election? — ^A. Along about, shortly before, or
Just about noon upon that day.
Q. Did anyone go to the clerk's office on that occasion with you? — ^A. Not at
that time; no, sir.
Q. Who, if anybody, was In the clerk's office at that time? — A. There was no
one present at that time in the clerk's office.
Q. Was there anybody in charge of the clerk's office, or claimed to be, at that
time? — ^A. There was no one in the office at that time.
Q. Which door of the courthouse did you enter? — A. I entered the east door.
Q. Was there at that time a large corridor running east and west through the
courthouse? — ^A. Yes, sir.
Q. With reference to the east door that you entered on that occasion, where
was the door entering the county clerk's office located? — ^A. On tlie right-hand
hide.
Q. After you got in — I mean the east entrance of the courthouse — state
whether you saw anybody in the corridor of the courthouse. — ^A. Yes, sir.
Q. Whom did you pee? — ^A. I saw E. G. Pray ; John Davis, of Battle Creek ;
WiUlam Smith, of Charlotte; and Lucille Smith, of Charlotte.
Q. Did you know William Smith, of Charlotte, at that time?— A. Yes, sir.
38 CABNEY VS. SMITH.
Q. Do you know what, if any, relationship that William Smith had to John
M. C. Smith, the respondent in this proceeding? — A. He was a son.
Q. Did you notice whether any of those gentlemen you saw and lady at that
time in the corridor of the courthouse had or were carrying ansrthfng? — A. Yes,
sir.
Q. What? — A. They were carrying the returns.
Q. What returns? — ^A. The election returns of all the precincts but two.
Q. How do you know they were the election returns? — ^A. I afterwards w«at
through them in the clerk's office.
Q. How soon after? — A. Within two or three minutes.
Q. Where did those four persons you have mentioned go from the corridor of
the courthouse at that time? — ^A. They went into the clerk's office.
Q. Where did you go? — A. Into the clerk's office.
Q. How soon after they went in? — A. We were all together.
Q. Who was carrying the returns? — ^A. Mr. Pray had part of them, and Mr.
Smith had part of them.
Q. WMUiam Smith?— A. Yes, sir.
Q. Where did they place those returns in the clerk's office, if they placed
them anywhere? — ^A. On the counter.
Q. What did they do then? — A. Well, the three of them went away in a few
minutes — Mr. Smith, Miss Smith, and Mr. Davis.
Q. Did Mr. Pray remain? — ^A. For a short time.
Q. When they laid those returns on that desk there, what did you do? — A. I
asked Mr. Pray — told him I would like to go through the returns.
Q. What did he say? — A. He says, " It will not be necessary for you ; we have
just had them into the adding machine in the treasurer's office and had them
tabulated, so you can get them absolutely correct from our figures."
Q. W^hat further occurred between you and Pray at that time? — ^A. In a few
minutes, or about that time — I am not just iK)8itive — ^perhaps it was before the
other three had gone, Mr. Sutlierland — W. H. Sutherland — ^and his son came In,
and the three of us went through the returns together and added up the figures
throughout the book. During that time Mr. Pray came to me and says, " Now,
I am going to dinner and leave these books here with you, and when you get
through you lock the door when you go out."
Q. Did you go through those returns at that time? — ^A. Yes, sir.
Q. Did you have to break any seals In order to get into the returns? — A. No,
sir; the books were out of the envelopes.
Q. All of them out of the envelopes? — A. Yes, sir.
Q. Were the envelopes there? — A. I didn't see them.
Q. Did the returns that you saw there at that time purport to be the returns
from some of the election precincts in the county of Eaton? — ^A. I think all of
the precincts in the county of Eaton but Sunfield and Oneida.
Q. You did not find the returns of those two precincts in that lot of returns
at that time? — ^A. No, sir.
Q. Did you on that occasion, before you left the clerk's office, see the envelopes
with those returns? — A. No, sir: I think not.
Q. Did Mr. Pray or anyone else, at the time the four you have mentioned
that you siiw in the corridor, state to you or show you any figures of what they
claimed the returns showed the result to be? — A. Yes, sir; Mr. Da^is did.
Q. What Davis?— A. John Davis, of Battle Creek.
Q. Had you known John Davis, of Battle Creek, prior to that occasion? — A.
Yes, sir.
Q. How long had you know him? — A. I presume for 20 yeara
Q. He was living at that time in Battle Creek, as you understood it, was he? —
A. Yes, sir.
Q. Had he lived in Eaton County, that you know of. at any time within 30
days prior to the election of November 5, 1912? — A. No, sir.
Q. How long, to your knowledge, had Davis been living at Battle Creek? —
A. Well, for a number of years; I should say [)erhaps 10 or 12, perhaps longer.
Q. Do you know what he claimed his politics to be? — A. He claimed to be
a Republican.
Q. Do you know whether he claimed to hold any position in the Republican
Party?
Mr. Maynard. I object to that as incompetent and immaterial and hearsay.
(No answer.)
CARNEY VS. SMITH. 39
Q. Did Mr. Davis claim to yoii or did he to your knowledge hold any position
In the Republican Pnrty during the last 1912 fall campaign?
Mr. Maynabd. The same objection.
A. Xo; he didn't claim he did.
Q. Do you know, of your own knowledge, what he was doing over here at
that time that you say you saw him here at the courthouse? — A. He told me
that he was here for the purjwse of straightening up that Smith-Carney vote
and getting the figures.
Q. When did he tell you thnt? — A. Shortly after noon.
Q. Of what day? — A. Of this same day.
Q. Do you say that on this occaision, when you first saw thesQ books In the
comity clerk's oflSce of Eaton County, that j'ou did not see the envelopes or any
of the envelopes, such as this one I show you, addressed to the county clerk,
Chnrlotte, Eaton County. Mich, [showing witness Exhibit 21?— A. I did not.
Mr. Adams. I don't offer it in evidence.
Mr. Maynard. The enveloi)e shown witness purports to come from the town-
ship of Sunfield. Eaton County.
Q. On that occasion, when you were in the clerk's office, I understand that
you did not find the election returns from the precinct of Sunfield? — A. No, sir.
Q. Do you say you did or did not? — A. I did not from Sunfield nor Oneida —
I think the two townships were.
Mr. Adams. We offer Exhibit 3 for identification only.
Q. I show you and hand you Exhibit 3 for the purpose of identification only.
With reference to that Exhibit 3, were the returns or papers which you say Mr.
Davis and Mr. Smith and Miss Smith and Mr. Pray brought Into the county
clerk's ofllce upon the day you mentioned — were of like character of this Ex-
hibit 3, or not? — ^A. Yes, sir.
Q. That If, I mean as to the general make-up of the books? — A. Yes. sir; I
think tliere was another book ; I am not i)ositive of that. I think there was a
tally sheet in connection with these.
Mr. Adams. This is Exhibit 4 for Identification, being the tally sheet from
Sunfield.
Q. I show you a tally sheet marked " Exhibit 4.'* Did you see (m the occasion
referred to in the last question any tally sheets of the general character such
as the one I am showing you now, Exhibit 4, on this particular occasion that
you have been testifying about? — A. Yes. sir.
Q. Did you find a statement book or not find a statement book and a tally
sheet from each of the several precincts in the county of Eaton on this occasion
you have just mentioned save the townships of Sunfield and Oneida? — A. I
don't remember of seeing the statement book; this is the book I went through
at that time; the tally sheets or tally book.
Q. What do you mean by going through the tally book at that time? How
many tally books? — A. I went through all of them except the two missing
precincts.
Q. Those were Sunfield and Oneida? — A. To the best of my recollection those
were the two townships that were missing.
Q. After you went through those, what did you do with them? — A. I left
them there on the counter.
Q. Did you at any time on that day see any envelopes in the county clerk's
office, such as Exhibit 2? — A. Yes, sir.
Q. When, first?— -A. Shortly after dinner.
Q. Where were they? — A. The mail boy brought them in — brought the mall;
the two townships came in shortly after dinner.
Q. What day was that? — A. The same day.
Q. Who was present when they were brought in, if anyone? — A. Well. I
was there, John Davis was there, of Battle Creek, John C. Nichols, and this
Lucille Smith.
Q. Is that Congressman Smith's daughter? — A. Yes. sir; and M. P. Hart, of
the Republican office. I presume there were 15 or 20 there at that time.
Q. This John C. Nichols you have mentioned, had he. to your knowledge,
ever held any official position in this county prior to the November, 1012, elec-
tion?— ^A. Yes, sir; I know of his being justice of the i)eace of the city and
circuit court commis.<*ioner.
Q. Did you ever see him working in the county clerk's office before that
election day? — A. Prior to November 5?
Q. Yes, sir. — A. Yes, sir; I have seen him around the clerk's office consid-
erably.
40 CAKNEY VS. SMITH.
•
Q. Did you see him around the clerk's office after November 5, 1912? — ^A. Yes,
sir; most every day.
Q. What was he doing there; what did you see him doing? — ^A. He seemed
to be in charge of the affairs of the office to a considerable extent.
Q. These returns, you Fay, from those two precincts came in in the afternoon
of that day on which you first examined the returns? — ^A. Yes, sir.
Mr. Adams. Exhibit 5 is from Oneida Township ; for the purpose of identifica-
tion I have had the envelope addressed " CJounty clerk, Charlotte, county of
Eaton," purporting to be the Oneida election returns from Oneida Township,
marked *' Exhibit 5."
Q. I show you now Exhibit 2 and Exhibit 5 and ask you whether those ap-
pear to be the envelopes you say came in on the afternoon of that day into the
county clerk's office? — ^A. They appear to be.
Q. When those envelopes came into that office on that day from those two
townships, state whether or not you noticed that they were or were not sealed. —
A. They were sealed.
Q. Did you see anybody break the seals on them? — ^A. No; I didn't see that.
Q. What was done with them when they were brought in? — A. They were laid
on the table in the center of the room.
Q. Did anybody open them in your presence? — A. I couldn't say that they
were opened while I was in the room. John Davis, of Battle Creek, and I were
checking over the figures we made, and while doing that these books were
opened. I couldn't say who opened them.
Q. What books? — A. These envelopes were opened.
Q. From Oneida and Sunfield do you mean? — ^A. Yes, sir; if those are the
two townships.
Q. Was Congressman Smith there at that time? — ^A. I don't think he was;
no, sir.
Mr. Adams. Will it be conceded that E. G. Pray at that November 5. 1912.
eleotioii, in tlie county of P^aton, was a candidate for representative in the State
legislature on the Republican ticket?
Mr. Fellows. I understand he was; that Is conceded upon the record. Why
not have it conceded that before that he had been county clerk?
Mr. Adams. We will concede that he was county clerk ; it may be conceded that
the Mr. Pray referred to as being a candidate for the legislature on the Repub-
lican ticket at that election was during the year 1912, up to November 1, county
clerk of the county of Eaton.
Mr. Fellows. Your concession being that he was county clerk up to the date
at which he resigned?
Mr. Adams. I don't want to concede the resignation.
Mr. Maynard. All right ; we will make the proof.
Mr. Adams. He may have been county clerk, but I don't concede the fact that
he resigned.
Mr. Maynard. It Is conceded that he was a candidate for representative at
this election on the Republican ticket and was county clerk down to November 1.
1912.
Mr. Adams. We can look that up later; at this time I will stipulate that far.
Do you concede that John C. Nichols, whom the witness has been testifying
about, was a candidate at the November 5, 1912, election In the county of
Eaton, Mich., for the office of circuit court commissioner on the Republican
ticket?
Mr. Maynard. That Is probably true; we will concede that.
Q. The John C. Nichols you saw over there In the clerk's office was the same
John C. Nichols that was a candidate for circuit court commissioner, as you
understand It, at the November 5, 1912, election? — A. Yes, sir.
Q. On the Republican ticket?— A. Yes, sir.
Q. What did you see William Smith, son of Congressman Smith, do there in
the clerk's office at any time after this forenoon when you say you first saw
these election retunis in the county clerk's office of Eaton County? — ^A. I
couldn't say that I sjiw him do anything particularly; he .seemed to be checking
up the figures ; I am not positive he had a list with the figures himself.
Q. Did you see him handling any of these election returns or statement
books there in the county clerk's office there at that time? — A. No, sir.
Q. I mean after you saw William Smith, John Davis. E. G. Pray, and Miss
Smith bring them into the county clerk's office from the corridor of the court-
house?— A. No, sir; I never saw him after that time.
GABNEY VS. SMITH. 41
Grofls-examlBatlon by Mr. Maynabd:
Q. Mr. Robinson, what Is your occupation? — ^A. At present I am working on
the Charlotte Laader — a newspaper reporter.
Q. How long have you been engaged in reporting for the newspapers? —
A. Why, for three or four years.
Q. What papers? — ^A. The Detroit News, the Grand Rapids Press and Herald,
the Detroit Journal, and the Detroit Free Press.
Q. Have you also been engaged for the fireman's association in the State? —
A. Yes, sir.
Q. As secretary of that organization? — A. No, sir.
Q. Have you ever been secretary of any of those companies of the local com-
pany; had anything to do with any of those associations in any official capac-
ity?— A. I was statistician for the State Firemen's Association.
Q. You have been in rwlitlos a great many years here — one of the head
ones? — ^A. I have been, from a Democratic standpoint.
Q. There is not much going on but what you are around to get the news for
the papers? — ^A. No, sir.
Q. When you went over there in the morning, what did you go there for — to
the county cleric's office? — A. Why, the returns in the Democratic headquarters
were not complete ; there was more or less controversy in regard to the returns.
Q. And you were trying to smooth it out and get the right figures? — ^A. Yes,
sir.
Q. That is what you were aiming to do? — A. Yes, sir.
Q. You didn't find any of these written returns on the first day you went to
the clerk's office? — A. I don't think so; I couldn't say that I did.
Q. You don't say but what some of them were there that day? — ^A. They may
have been.
Q. As they came in, the earlier returns, you examined and consulted the tally
sheets for the purpose of getting the correct returns, didn't you? — A. As they
came in.
Q. Whenever they were called to your attention? — A. I didn't go there but
that one time.
Q. That time you met them with the tally sheets coming from the treasurer's
office, as you understand it? — ^A. Yes, sir.
Q. They had an adding machine in the treasurer's office? — A. Yes, sir.
Q. And the county officers, those interested in the county business, went to
the county clerk's office to compute their adding with that machine? — A. That
is as I understand it.
Q. Was the door in the treasurer's office right straight across from the door
in the county clerk's office? — A. Yes, sii*.
Q. When you say they had these tally sheets? — A. Yes, sir.
Q. You are positive they were the tally sheets? — A. Yes, sir; I am positive
they were.
Q. You don't remember, then, of seeing the statement books? — A. No. sir; I
don't; I hardly think they were the statement books.
Q. Because you found them to be the tally sheets? — A. Yes, sir.
Q. What officers were you computing those votes ui)on? — A. Both Congress-
man and the drain commissioner.
Q. Those were the two officers that you were especially interested in? — A. Yes,
sir.
Q. And you tried to get the correct and exact figures upon Mr. Carney's vote,
didn't you? — A. Yes, sir.
Q. As you understand it, your friend Davis was trying to get the exact figures
for Mr. Smith? — A. So he stated to me.
Q. As far as you know that Is all that either one of you were doing — was try-
ing to get the exact vote? — ^A. Yes, sir.
Q. Of those two men? — ^A. Yes. sir.
Q, Neither of you were there changing any of those votes? — A. I didn't see
anything of that kind ; I didn't.
Q. You wanted to get the honest, straight vote? — A. That was my idea.
Q. And you two looked through the papers together? — ^A. No, sir; Mr. Davis
and I didn't
Q. Did you check over any with him? — ^A. Not until after dinner. My figures
were 912 and his were 914 ; after he went through my figures he turned to Miss
Smith and says, " I concede your figures are correct"
Q. What did that 912 represent?— A. That was the county vote.
42 CABNEY VS. SMITH.
Q. The majority of Smith over Carney? — ^A. Yes, sir. You see, those boolta—
Sunfield nud Oneida books, if those are the two — hadn't come in. We took our
figures we got from the office for those.
Q. Up to that time you were close together on the count — 912 majority for
Smith, with the exception of two precincts?
Mr. Adams. That Is calling for the conclusion of the witness.
Q. You were two apart; that is as near as you got until you got the fig-
ures?— ^A. Yes, sir.
Q. How old was William Smith; about 14 at that time?— A. Why. I don't
know ; I should say 14 or 15 ; well, I couldn't say.
Q. He Is a boy, and you have known him — ^he has lived in the city ever since
he was a boy? — A. Yes, sir.
Q. This was not the first general election you had been interested in and came
to the county clerk's office for the purpose of seeing after the returns, was it?
Mr. Adams. I object to that as irrelevant and immaterial.
A. You mean by that, the State election?
Q. A general election. — ^A. I had been there before at the primary, at the
clerk's office.
Q. You went usually, didn't you, for the purpose of trying to obtain the cor-
rect returns from the clerk's office?
Mr. Adams. I object to that as irrelevant and immaterial.
A. Yes, sir.
Q. That is the general pnictice in the county?
Mr. Adams. The same objection.
A. I couldn't say that is the general practice. I know any time I was there
I was generally the only Democrat.
Q. You had the opi)ortunity just the same as if you had been a Republican,
didn't you, to ascertain what the returns were?
Mr. Adams. I object to that as incompetent and Immatarial.
A. At the primary election I was unable to obtain anything In regard to the
Democratic cnndidnte's vote, but the Republican vote was all right.
Q. Was there any contest on the Democratic ticket? — ^A. I think not
Q. You know whoever was on there was elected, didn't you, as far as the
primary was concerned?
Mr. Adams. I object to that as Irrelevant and Immaterial and calling for the
conclusion of the witness.
A. I believe there was a contest at the primary.
Q. On which one? — A, 1 am not sure: I was greatly Interested in getting the
Democratic figures; there was a contest for probate judge; there was not be-
tween ( 'onjjressmen.
Q. Were there a number of elections pre<»eding this one that you had gone to
the clerk's office for the puri)ose of obtaining the exact returns?
Mr. Adams. I object to that as Irrelevant and immaterial.
A. Yes, sir.
Re<iirtvt examination by Mr. Adams :
Q. Do you hohl or have you held any positions here in the fire deimrtment? —
A. Yes. sir; I have been an officer there for about IS or 20 years.
i}. Wliat office? — A. I was lieutenant for a number of years, and I am assist-
}int chief at the present time.
Q. How l(»n^ have y(Mi i)een assistant chief? — A. Practically under a year;
since the 1st of last May.
Q. You said you thought the books that you examined relating to this Novem-
ber r». 1012, oli^'tion. the first time you examined them In the county clerk's
office, were the tally sheets?— A. I think they were the tally sheets; yes, sir.
Q. Did you see tliere, or did you not see. the statement book on that occa-
sion?— A. No, sir; 1 think I did not see the statement book on that occasion:
I did later on.
Q. When, first, later on? — A. I think that afternoon the statement books were
t here
Q. Counsel asked you whether you wei-e trying to get the honest, straight
vote. You were trying to find out what the returns showed, were you not?
Mr. Maynard. I object to that as leading. Let the witness state It Instead of
the attorney.
A. Yes, sir ; I was there to get the figures from the books.
Q. Did you know whether it was the honest, straight vote or not that those
returns showed on that occasion? — A. No, sir; I did not.
CARNEY VS. SMITH. 43
Q. Now, the 912 that you stated you figured that John M. C. Smith, candi-
date fbr Congress on the Republican ticket, had at that election was the plu-
rality in the county of Eaton, and that you included, I believe, the Suufield
and Oneida township votes? — ^A. Yes, sir.
Q. Where did you get the Oneida and Sunfield township votes to Include In
reaching that result? — ^A. I took Mr. Pray's figures as he got them from the
boards, as he told me.
Q. Had yon or not, In determining 912 result, seen any tally sheets or state-
ment books or returns from those two boards of election? — ^A. No, sir.
Q. Up to that time?— A. No, sir.
Q. Counsel aslced you whether William Smith was not a little boy. Now,
how old OB November 5 would you say in your Judgment William Smith, son
of Congressman Smith, was? — A. I think he was about 15 years of age.
Q. A big boy, was he, at that time: how tall?
Mr. Matnard. I object to that as immaterial.
A. He was a good-si2sed boy in height, probably nearly as tall as I am.
Q. How tall are you? — Five feet four and one-half or five inches.
Q. Was not he taller at that time? — A. It might be; I am not sure about that.
Q. Did you notice — or state if you did notice, rather, just what you saw
William Smith doing there in the clerk's oflice? — A. Why, I couldn't really say
he was doing anything. He was interested in getting these figures. I think
he had a little pad in his hand with figures on it. I am not really positive,
but to the best of my recollection he did have a little pad of paper in his hand.
Q. Was that before or after you first saw William Smith in the corridor of
the courthouse? — A. That was after.
Q. When after? — A. Well, right at the time; within a few minutes.
Q. Did you see him in there in the afternoon of that day again? — A. I couldn't
say for sure whether I did or not : I think I did, but I wouldn't care to swear
positively I did see him that afternoon.
Recross-examination by Mr. Maynard:
Q. Did he ask you what the figures were, and you gave them to him? — A.
Did Smith?
Q. Yes. sir. — ^A. No, sir; I did not, I don*t think. I know Davis did.
Q. That is, John Davis asked you what figures you got?— A. Yes, sir.
Q. And finally conceded that you were right? — A. Yes, sir.
Q. How many rooms are there in the clerk's office? — A. There were two
txx)ms.
Q. Principal rooms? — A. Two large-size rooms.
Q. And a vault? — A. Yes, sir.
Q. Did you go into any except the front room? — A. I didn't go into the
other rooms at all.
Q. You know how the second room is arranged? — A. Yes, sir.
Q. You have been in there? — ^A. Yes, sir.
Q. Do you know that they have tables and a desk in there upon which they
could place any of these records? — ^A. Yes, sir.
Q. You didn't go in to see whether the envelopes were In there or not? —
A. No, sir; I did not.
Q. Or whether the books were in there? — ^A. No, sir.
Q. All you can say about it is that you didn't notice anything at the time? —
A. No, sir.
Q. You were not looking for anything else, were you, Mr. Robinson? — A.
No, sir.
Redirect examination by Mr. Abams :
Q. How many different people did you see examining these election returns
and tally sheets and statement books after the November 5, 1912, election in
the county clerk's office? — A. Well, sir, they were open for Inspection; anyone
who cared to do so had a right to go ahead and examine those books.
Q. They were open to the public and anybody that came in could look at
them, is that right? — A. Yes, sir.
JACKSON MOSIER, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestant as follows :
Direct examination by Mr. Adams :
Q. Mr. Mosier, you live in Charlotte, Eaton County, Mich.? — ^A. Yes, sir.
Q. Your age is what? — ^A. I am past 68.
44 CABNEY VS. SMITH.
Q. You have lived here how long?— A. About, since 1860; 44 years, nearly.
Q. You live in what ward here? — ^A. In the third ward.
]ifr. Adams. By the way, will you concede that at the November 5, 1912, elec-
tion that there were four wards in the city of Charlotte and separate voting
precincts, namely, the first, second, third, and fourth wards?
Mr. Matnabd. Yes, sir.
Q. Were you a voter in the third ward at the November 6, 1912, election? —
A. Yes, sir.
Q. Did you have any position in the voting place in the third ward at that
election? — ^A. I was appointed to challenge by the chairman of the Democratic
city committee.
Q. Did you go there as such challenger? — ^A. Yes, sir.
Q. What time on that day did you reach that voting place and begin your
duties as challenger for the Democratic Party? — ^A. I think it must have been
7, or somewhere about 7, o'clock or a little after.
Q. Was there or not any challenger there that day for any of the other
political parties? — ^A. There was one appointed, but I don't think I saw him in
there all day, except in the morning, until after the polls were closed.
Q. Who began acting as Inspectors there in that precinct on that day? — A.
Mr. Dunning and J. B. Dowigan.
Q. Was there not another inspector?
Mr. Maynabd. The charter provides for two.
Q. As a matter of fact there were three inspectors of election on that day? —
A. I think Mr. Sawyer was in there, for what purpose I don't know.
Q. Was there a man named Barney? — ^A. He took the ballots and deposited
them In the box.
Q. What was his given name? — ^A. George.
Q. Do you say there was any other man who acted as inspector in that
precinct on that day In addition to those you have named? — ^A. No, sir; I guess
he didn't act as inspector, Mr. Adams.
Q. What was he doing there? — ^A. He only had the poll lists; canvassed the
city. Had list of the voters In the city and checked them off.
Q. lie was In there, was he? — A. Yes, sir.
(). Within the railing?— A. Yes, sir.
Q. Around where the Inspectors were? — ^A. Yes, sir.
Q. How long was he in there that day? — A. All day.
Q. What did you see hlni doing? — ^A. I didn't see him doing anything, except
taking care of his books and checking off those who came In.
Q. Do you know what he was doing that for?— A. To get out all the votes, I
suppose, in the ward; we usually made a canvass.
(^ Did you hear any oath administered to him in that precinct on that day
by anyl>odyV — A. I did not; no, sir.
Q. But he was around there where the ballots were being handed out and
where jjeople were voting? — A. Yes, sir; he was Inside — the same as this Is the
iiisi<le of the railing; same as I was.
Q. Did you give us his given name? — A. I think William; I don't know.
Q. You may state whether any of the men who came Into that precinct on
that day while you were there asked for instructions? — A. They did.
Q. And for a ballot? — A. Yes, sir; they asked for instructions.
Q. Did any of the insjKJctors of election administer any oaths to these men
who ai)plied for instructions on that day? — ^A. Not to my knowledge; I didn't
hear them.
Q. When any request was made by any voter to go in there to vote on that day
and to be instructed In the manner of voting his ballot, what was done in the
way of giving him Instructions? Explain that. — ^A. He went in the booth to
get instructions, what they wanted to know.
Q. Who went in? — A. I went in and two others, usually Dowigan and Dun-
ning.
Q. Did you always go in in every instance when a voter on that day asked
for instructions? — ^A. I did when I was there.
Q. Were you not there the whole day? — A. I was not there when I went to
dinner; I left there to go to my dinner.
Q. You left during the noon hour to get your dinner? — ^A. Yes. sir.
Q. How long were you away from that voting place on that day for your
dinner'.'— A. 1 don't think I was gone over three-quarters of an hour.
CABNBY VS. SMITH. 45
Q. Did anyone take your place as challenger durluK that time on behalf of the
Democratic Party? — A. I didn't see anybody; no one was In there when I
came back in my place.
Q. The iwlls opened at what hour in the morning? — ^A. I think at 7 o'clock,
\t I am not mistaken.
Q. In the evening at what hour did they close? — A. At 5 o'clock.
Q. After you returned from your noon meal to that voting place, state
whether you did or did not remain there performing your duties as challenger,
as yon have mentioned, up to the time the polls closed ? — A. I did.
Q. When you were there on that day in that place state whether you did
or did not in every instance when you noticed anybody applying for instructions
as to the manner of voting, go into the booth and see the ballot marked. —
A. I went in the booth.
Q. Did you see the ballots marked? — ^A. I couldn't say that I did.
Q. Why not? — A. It was usually too full; I couldn't hardly get in. When
four got in there it was pretty hard to get in.
Q. Did you hear — were you in a position to hear — what was said to the
voter? — ^A. Yes, sir; I was in a position to hear.
Q. Now, you say, do you. that in no instance when voters on that day there
asked for instructions ns to the manner of voting was there an oath first ad-
ministered to the voter before the instructions were given to him? — A. Do you
mean those who asked for assistance?
Q. Yes, sir. — ^A. Not that I know of.
Q. You didn't hear any oath administered to any of them ? — ^A. I being on the
other side, the ballot was handed through this side; however, none could imss
out this wa3' ; I could see anyhow, being on the other side of the booth, maybe
the length of the room.
Q. Where were the inspectors with reference to where you stood when per-
forming their ordinary duties of handing out and receiving ballots? — A. The
handing out was on this side of the booth, and the clerks were also on this
side, and I was on the opposite side.
Q. In what iwsition were you to challenge the voter you desired to chal-
lenge?— ^A. I would go in from this side; perhaps two of us would go In from
this side and one from that side, and the one who handed out the ballot would
go in.
Q. Did you hear any oath administered that day to any voter who applied
for instructions as to whether he could read the English language? — A. No, sir.
Q. Did you hear any oath taken by any voter or voters who applied for
instructions that they were physically disabled to mark their ballot? — ^A. I
did not.
Q. Or on any occasion when a voter in that precinct on that day applied for
instructions as to the manner of voting his ballot, did more than one inspector
go into the booth? — A. More than one Inspector?
Q. Yes, sir. — ^A. Three every time.
Q. I mean the inspectors now?— ^A. The inspectors?
Q. Yes, sir. — ^A. I don't know as I get that question.
Q. Whether more than one of the inspectors in any one instance went in when
a voter had applied for instructions as to the manner of voting his ballot? —
A Yes, sir.
Q. You say they did; sometimes two of them went in? — ^A. Two every time.
Q. Two inspectors? — ^A. Yes, sir.
Q. Did you hear any suggestions made there that day to any voters who
applied for instructions in marking their ballots, made as to who the voters
would vote for? — ^A. I did.
Q. What did you hear? — A. I heard Mr. Smith's name mentioned.
Q. Who mentioned it? — ^A. Mr. Dunning.
Q. When he was in the booth? — A. Yes, sir.
Q. With the voters?— A. Yes, sir.
Q. A suggestion was made by Mr. Dunning, who was then Inspector of elec-
tion, to the voter to vote for John M. C. Smith; is that correct? — A. That is
correct.
Q. Was that the John M. C. Smith who was then a candidate on the Repub-
lican ticket for Representative in Congress? — ^A. Yes, sir.
Q. Did you hear any suggestion made there to any voters who applleil fur
instructions on that day for any other candidate? — A. I did not myself.
46 CARNEY VS. SMITH.
Q. Did any controversy occur there between you as challenger for the Demo-
cratic Party that day with reference to the manner in which the insijectors
were carrying on that business? — A. We had some trouble there.
Q. What controversy di^ you have? — ^A. I didn't think it was right.
Q. What did you say? — ^A. I said it should be stopped.
Q. What had to be stopped?— A. Soliciting.
Q. Soliciting what?— A. Votes.
Q. Who did you have that controversy with? — A. Mr. Dunning.
Q. What did he say?— A. He said, " What are you going to do about It?"
Q. Do you know what Mr. Dunninp's politics were on that day? — ^A. He was
a Republican.
Q. Con id you see how those men who were instructed by the inspector or to
whom suggestions were made that they vote for John M. C. Smith for Congress-
man in those booths on that day voted? — A. No, sir; I could not.
Q. What business are you engaged In? — A. I don't know hardly.
Q. Are you retired? — A. Yes, sir; tired.
Q. What did you say retired or tired? — A. Tired.
Cross-examination by Mr. Matnabd :
Q. Mr. Mosier, which way did the booths run? — ^A. They run north and south.
Q. Four booths in a line? — A. Yes, sir; all in line.
Q. On which side of the booths were you sitting? — ^A. On the west side.
Q. The west side of these booths that run north and south? — ^A. Yes, sir.
Q. At the south end of the booths were you, next to the railing, the south-
west comer of those booths? — ^A. I was all around them, every side.
Q. You traveled around the booths? — A. Yes, sir.
Q. The man who gave out the ballots was sitting at the railing at the south
end of the room? — A. Yes. sir; on the east side.
Q, And the clerks were on the east side of the booth? — ^A. Yes, sir.
Q. And the Inspectors of election were on the east side of the booth, or one
on the west side? — A. One on the west side.
Q. The ballot box was on the left side? — ^A. Yes, sir.
Q. The voters received their ballots In the southeast comer of the room, didn't
they, through the gate? — ^A. The southeast comer; yes, sir.
Q. They entered the booths from the east side? — A. Yes. sir.
Q. And passed through and cast their ballots on the west comer? — ^A. In the
northwest comer; yes, sir.
Q. And you were on the side where they came through? — ^A. Yes, sir.
Q. Was there any man who asked for assistance that went into the booths
that you didn't go In with him? — A. I don't hardly think so while I was tbere.
Q. How many were there? — ^A. All told?
Q. Yep, sir.— A. Well. I would say a very small percentage of the voters
who asked for assistance in the first place.
Q. One or two? — ^A. More than that.
Q. About how many? — ^A. I should say now about seven or eight, perhaps.
Q. In the whole? — ^A. Yes, sir.
Q. You are not positive about that, are you? — ^A. Well, I couldn't flay posi-
tively.
Q. Can you give any names? — ^A. No, sir; I can't give the names.
Q. W^ho'was the one that you said you had trouble over? — ^A. I couldn't tell
you what his name was.
Q. You don't know what his name was? — ^A. No, sir; I couldn't say what his
name was.
Q. Mr. Mosler, you didn't see anybody mark a ballot for a voter, did you? —
A. No. sir ; I couldn't say that I did.
Q. Now, Mr. Mosler, did you hear either one of those inspectors ask any
voter to vote for John M. C. Smith, In that language? — A. I did; one.
Q. Who wjis thnt?— A. Mr. Dunning.
Q. Do you remember the man's name? — A. No, sir; I do not.
Q. ('an you give the language he used to this man? — A. He says, "J. M. C";
that is all.
Q. He just mentioned the name? — A. Yes. sir.
Q. Was this about the language he uswl, "How about John M. C. Smith?" —
A. Yes, sir; something like that.
Q. That is all he said?— A. Yes, sir.
Q. That is the thing you took offense at?— A. I didn't think it was right.
CARNEY VS. SMITH. 47
Q. That man was the one that caused the trouble when he said. '* How about
John M. C. Smith?"— A. That is the time I got a little mad.
Q. Do you remember that man's name? — A. No, sir; I can not think of his
name.
Q. Do you remember the time that occurred, was it before you went to
dinner or after? — A. That was after dinner.
Redirect examination by Mr. Adams :
Q. You say, Mr. Mosier, that you heard one ; what do you mean by that — one
who? — A. I don't remember of Siiyin^ that: I meant one of the inspectors.
Q. Did you henr any suggestion made to any of these others who applied for
instructions that day? — A. The Fame thing.
Q. How many different times did you hear these suggestions given to
voters? — ^A. I couldn't tell you how many there were that asked for assistance,
1 couldn't give you the number.
Q. State whether or not suggestions were made to all when you were present
tbat day? — A. Do you mean those who asked for assistance?
Q. Yes, sir. — ^A. All those, I think ; yes, sir.
Q. Did you know those men who were applying for instructions? — ^A. No,
sir: I didn't pay any attention to who they were. There are a good many in
the ward I don't know.
Q. Whether you knew them by name — those who applied for instructions? — A.
No. sir.
Q. On that day? — A. No, sir; I couldn't tell you that.
Q. Did you or not know their names on that day when they voted? — A. No;
I don't think I did.
Q. Who handed out the ballots to the voters that day? — A. Mr. Dowdigan.
Q. Who received the ballots from the voters and put them in the ballot
boxes? — A, (4eorge Barney.
Q. Who acted or assisted there in the actual work of counting the ballots, if
you know? In other words, did anyone assist in doing that eccept those who
were Inspectors and the clerks In that precinct? — A. No; I think not.
Q. Were all the Inspectors there or not when the counting was done, while
you were there? — A. I think so; I think they were all there.
Q. How many ballot boxes did they have there that day, more than one or
only one? — ^A. Just one.
Q. Did the board stay there aftw the adjournment In the afternoon until
the counting up was concluded, so far as you know? — A. Yes, sir; they did.
Q. Was John C. Nichols there any part of the day?— A. Inside?
Q. Yes, sir. — A. No, sir; I think not.
Q. You intimated a little earlier in your examination, Mr. Mosier, that you
thought somebody else had acted there as Inspector? — ^A. No; he did not; he
didn't act as inspector.
Q. That was the man you referred to? — A. Yes, sir; he didn't act as Inspector.
Recross-examlnatlon by Mr. Maynard:
Q. Mr. Mosier, this man you referred to was J. W. Sawyer, of the gaslight
office?— A. Yes, slV.
Q. Ke was the Republican challenger and had his book there, keeping tally? —
A. He kept tally ; yes, sir.
Q. That is all he did? — .A. He didn't act as challenger; I presume that Is
what he was there for.
Q. What you mean Is he didn't go Into the booth? — A. No, sir.
Q. He was appointed by the Republicans for that purpose? — A. I suppose
that Is what he was there for.
Q. That is what he did — checked off the voters that went in?— A. Yes, sir.
Q. Mr. Sawyer is a very quiet man? — A. Yes, sir.
Q. He didn't have much to say: only just kept the tally?— A. No, sir.
Q. You and Mr. Sawyer were the only ones who were operating In that way —
you for the Democratic Party kept the chei'king — A, I didn't have any time.
Q. You were simply looking to see that those who went In the booths voted
richt*' \ Yes sir.
Q. There was just one thing I didn't get. You said that somebody asked for
instructions: did you hear anj'body there ask anybody to mark a ballot for
them?— A. I did not.
Q. They simply wanted to know how to mark It themselves? — A. Yes, sir.
Q. And those Instructions were given to them and they marked their own
ballots? — ^A. As far as I know : yes, sir.
48 CARNEY VS. SMITH.
Itedirect exaniiimtion by Mr. Adams:
Q. Did yoii see whether they marked their own ballots or not? — A, No, f4r:
I did not; I couldn't tell you in regard to that.
Q. You say. Mr. Mosier, as 1 understand it, that you didn't see whether the
voters who applied for instructions actually marked their ballots themselves
or whether they didn't; is that correct? — A. I think that is correct.
Q. Why was that? Why couldn't you see? What was the reason of it; was
there any reason? — A. Most of the time you could hardly get in; you get four
in there and tlie room is small.
Q. There W€>nld be the voter and two inspectors? — ^A. Yes, sir; and when I
would get in that would make four in the booth.
Q. Ilie booths were Hbout how long — the longest way of them — as a man
walked in? — A. I don't know what size they were.
Q. Just wide enough for one man to get in — in width? — A. There is not much
room in them, I am sure.
Q. Four feet, maybe, walking space in there? — A. I think so.
Q. The voter would get in and the two insiiectors, and there was not much
chance for you to get in: was that or not the reason why you couldn't see
whether the voters voted their tickets when they asked instructions or not? —
A. That is true.
Ke<-ross-examination by Mr. Maynard:
Q. Mr. Mosier, on one side of this booth was the door by which they entered? —
A. Yes, sir. ,
Q. On the other side, where you were, was the door they came out through
when they voted? — A. Yes. sir.
Q. When the voter went in the shelf on which the tickets lay was up one
side of the booth? — A. I think about in the center.
Q. It went clear across the booth — the shelf did? — A. Yes, sir.
Q. As the voter' went in you stoiKl at his hand, didn't you ; next to him on
that side of the booth? — A. Yes. sir.
Q. The others came on the other side, did they; that is, the inspectors in
the same direction the voter did? — ^A. On each side; yes, sir.
Q. When the voter received the instructions he retired and closed the door
and marked the ballot himself, didn't he? You didn't see any inspector mark
a ballot at any time? — ^A. I couldn't say that I did.
Redirect examination by Mr. Adams :
Q. As I understand you, when a voter was in there receiving instructions
one inspector was on one side of the voter and another inspector was on the
other side? — ^A. Yes, sir.
Q. So you challengers had to take your chances whenever you could get a
chance? — ^A. I got in somewhere.
(Whereupon the hearing was adjourned until 1 o'clock p. m.)
Mr. JACKSON MOSIER, recalled, testified further on Ijehalf of the con-
testant as follows:
Examined by Mr. Adams :
Q. So far as relates to the voters in the third precinct at the November 5,
1912, election, who applied for instructions in marking their ballots; did you
notice whether any of those particular voters had any physical disability? — A.
I did not.
Q. Did they have any physical disability so far as you could observe? — ^A.
No, sir.
Q. Did they make any claim there in your hearing — those particular voters,
I mean — that they had any physical disability which prevented them from
marking their ballots?— A. Not that I noticed.
Recross-examination by Mr. Maynabd:
Q. Wlijit they dcsirtvl >Yas instructions as to how to mark it themselves? — A.
They wanted instructions.
. Q. As to how to mark the ballot? — A. Yes, sir ; and some couldn't find the
party ticket ; they didn't know their party ticket.
F. M. OVERMYER being by me first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified as follows :
CARNEY VS. SMITH. 49
Direct examination by Mr. Adams :
Q. Mr. Overmyer, yon live where? — ^A. I live in the second ward of this city.
Q. How long have you lived in that ward?— A. About 16 years.
Q. By "this city," what city do you mean?— A. I mean the city of Char-
lotte, Mich.
Q. Eaton County?— A. Yes, sir.
Q. How old are you?— A. I was 68 years old the day before yesterday.
Q. Were you a voter in the city of Charlotte at the last November 5, 1912,
election? — A. Yes. sir; I was.
Q. What ward did you live in at that time and vote in? — A. I was in the
second ward.
Q. Were you in any way engaged in the election aside from voting in any
part of this city on that day? — ^A. I was acting in the capacity of challenger.
Q. For what party? — ^A. For the Democratic Party.
Q. In what ward? — ^A. In the second ward.
Q. Was there more than one voting place in that ward at that election, one
voting precinct? — ^A. As I understood it, yes, sir ; that is all I know of.
Q. What time in the morning did you undertake the performance of your
duty as a challenger for the Democratic Party in that voting precinct? — A. I
was there when the polls opened.
Q. About what time did they open? — ^A. Really, I couldn't tell you exactly.
Q. Approximately? — A. Along about half past 6, I think, or possibly earlier
than that.
Q. What time did they begin voting in that precinct on that day, if you re-
member?— ^A. Along, I should say, about half past 6; might have been later.
Q. How long did you, from the time they did open up and begin to work on
that board, remain there that day?— 4i. I was there all day until the polls
were closed and the vote counted at night.
Q. Did you leave at any time during the day? — ^A. I left at one time about
5 minutes to get a cigar. I don't think I was absent from the building or
voting place any more than 5 or 10 minutes at the outside from the time the
polls opened until they closed at night and the vote was counted.
Q. How did you get your meals? — A. My dinner was sent to me by some
one; I didn't inquire by whom — I was satisfied with it.
Q. Did you or did you not perform the duty of challenger at that precinct
that day? — ^A. I did to a certain extent; yes, sir.
Q. Who afted as inspectors of election at that precinct that day? — A. I
think Claude Knowles, Herman Gouldie, and Roy Preston.
Q. Did Mr. Barber act as inspector of election that day? — A. Yes, sir; he
prepared the tickets and the ballots.
Q. Who were the clerks, if you remember? — A. Mr. Gouldie and Mr. Preston.
Q. R. S. Preston? — A. Roy Preston and Herman Gouldie.
Q. Were there any changes made in the inspectors in that precinct that day
that you know of? While there were three different ones receiving ballots
and depositing them in the box from the time they started in in the morning,
whether inspectors or not, until they closed the polls that night and got through
with the counting of the votes, whenever that was, did you notice whether any
change was made in any of the inspectors at that precinct — any others who
acted as inspectors — or did the same three men act from the beginning to the
end? — A. Well, now, of course, I know who started in and who succeeded that
person, if that is what you wish to find out, that received the ballots. I don't
think there was any change made in this; that is, in regard to Mr. Preston and
Mr. Gouldie and Mr. Knowles — there was in those that received the ballots on
the opposite side of the booth — and deposited them in the box.
Q. Did some one of those three men perform those duties or did some new
man come in? — A. I never saw any but those three; that is all I noticed.
Q. Who had charge of the ballot box?— A. It started in with Mr. Hamilton,
as I know his name.
Q. What was he doing at that election that day?— A. He was, I think, one
of the board of aldermen here. I presume
Q. (Interniptin.) Not what you presume. What did you see Mr. Hamilton
doing there that day? — ^A. I saw him depositing ballots in the box as they were
passed to him before they came out of the booth.
Q. As the voter came out of the booth he handed his ballot to Mr. Hamil-
ton?— ^A. Yes, sir.
28G— 13 4
50 CARNEY VS. SMITH.
Q. And you say that Mr. Hamilton put that ballot into the ballot box?— A.
Yes, sir.
Q. How long that day did he act In doing that?— A. I don't think Mr. Hamil-
ton was there over an hour or sa
Q. Who took his place then in receiving and depositing the ballots in the
ballot box in thnt precinct? — A. Mr. Barber.
Q. Did any others besides Mr. Barber and Mr. Hamilton, on that day, receive
ballots from the voters and deposit them in the ballot box? — ^A. Yes, sir; there
was another.
Q. Who?— A. John O. Nichols.
Q. Is that the John O. Nichols who afterwards assumed to be and acted here
In the capacity of county clerk? — ^A. The same man; yes, sir.
Q. Was he or not the same John O. Nichols who was a candidate on the
Republican ticket at that election for circuit-court commissioner? — ^A. Yes, sir.
Q. The same man? — ^A. The same man.
Q. What did you see John C. Nichols do there in that voting place on that
day? — A. I saw him take quite a number of ballots as they were passed to him
and announce the name of the voter and deposit the ballots in the box.
Q. In the ballot box? — A. Yes, sir.
Q. How long, Mr. Overmyer, did you see John C. Nichols act In that capacity
of receiving and depositing those ballots there? — A. Well, as near as I can recol-
lect now, I should say he was there from an hour to an hour and a half. I
might be a little off in that, but that is my best recollec^tion at this time.
Q. Had John C. Nichols been around that voting place any before he began
receiving and dei)08iting ballots on that day? — A. Yes, sir; I noticed him around
there.
Q. On the inside? — A. If he was instde he was on the (H)poslte side from
where I usually stood ; if he was in there before that time, I didn't know it.
Q. What was the first you saw John C. Nichols doing in that voting place that
day? — A. Receiving those ballots; that was the first I noticed him having any-
thing to do with it.
Q. Had any of the other inspectors who began acting on the morning of elec-
tion day there left the second ward voting place at the time that John C. Nichols
began acting in the capacity of receiving and deiwsitiug those ballots? — ^A. I
couldn't answer that question.
Q. Did you hear any oath administered to the John C. Nichols you have
referred to before he began to receive and dei>osit those ballots on. that day? —
A. I did not; no, sir.
Q. What, If anything, did you notice John C. Nichols doing there in that
voting place on that day after he ceased receiving and depositing ballots? —
A. He was there In the evening when the vote was being counted.
Q. What did you see him doing there in the evening? — ^A. Well, he stood there
and had a little something to say occasionally.
Q. What did he have to say? What did he say? — ^A. Well, now, sir, I can not
repeat anything he said. Of course, I know that he dlctateti to Mr. Knowles as
he was counting the ballots several times. I remember on one occasion Mr.
Knowles says, " Now, here, that shows to nie the intent of the voter all right
enough," and Mr. Nichols made the remark, " I don't see how any man can say
how he knows what the intent of the voter was," or something to that effect.
Now, the point at issue I don't know what it was or who the candidate was that
brought the argument about.
Q. Did you notice In that precinct in the second ward on that day whether
any voters made any requests to the election board for Instructions as to the
manner of voting their ticket? — A. One came under my notice particularly,
being a neighbor of mine. I know he made a request; what others did that
were in there for Instructions — what requests they made — I don't know. There
were quite a number In there, and they seemed to want assistance in marking
their ballots or something of the kind.
Q. Was there any instance where a voter on that day In that precinct made a
request for instructions In the marking of their respective ballots before voting
them, did you hear any oath administered by any of the Inspectors of that elec-
tion on that day to those men who applied for Instructions? — A. I did not.
Q. Did you hear any of those men on that day there who made application for
Instructions in the manner of voting make any statement to any of the election
board that they did not understand the English language? — A. No, sir; I didn't
hear anything of that kind.
CARNEY VS. SMITH. 51
Q. Did you hear any of those on that day there who ai)i)Ued for instructions
in reference to voting their ballots make any claim that they were physically
disabled and could not for that reason vote their ballots? — A. Yes, sir; one
voter there claimed defective eyeslj^ht : he was an elderly gentleman and quite
feeble.
Q. Do you linow his name? — A. I do.
Q. What was his name? — A. Stephen Ferguson, Icnown as Elder Ferguson.
Q. Did he vote at that election? — ^A. Yes, sir.
Q. Do you l^now whether he personally marked his ballot or not? — A. I know
he did not.
Q. Who marked his ballot? — A. Claude KnowU^s.
Q. With the exception of this gentleman you have just mentioned, did any
of those applying there for instructions in the matter of voting their ballots
or to mark them make any statement to any of the inspectors there that they
were physically disabled and could not for that reason mark their ballots? — A.
Just allow me to make a little statement. This Elder Ferguson is the only
man I saw in the booth there. I didn't understand the duty or how far u chal-
lenger's authority extended, and I didn't find it out until later; consequently I
was not in the booth but with that one man. Elder Ferguson.
Q. How close were you to the space where the voters were handed their
ballots before they went into the booths to mark them? — A. I think about S
or 10 feet.
Q. Did 3'ou he.nr any of those voters who came in there ai)i)lying for a ticket
to vote in the precinct that day before they got their ballot or ticket and before
they went into the booth make any statement to any insi)ector of the ele^ctlon
that they were physically disabled and for that reason could not mark their
ballots and wanted instructions, or that in substance, except this one you have
mentioned? — A. I did not hear any others except the one.
Q. Did you hear any of those men who applied there on tliat day for iustruc-
tions with reference to the voting of their ballots make any statement to any
Inspector of that election board that they did not understand the English lan-
guage and could not read it? — A. I didn't hear anything of the kind.
Q. Were you in the booth or did you watch any of those men, except the one
you have mentioned, receiving instructions, of those who applied for instruc-
tions?— No, sir.
Q. That is the only one? — A. Yes, sir.
Q. That you saw in the booth? — A. Yes, sir.
Q. Were you in a position to see? How close were you to him? — ^A. I went in
the booth with him.
Q. Who else went in? — A. Mr. Kuowles was in there.
Q. Anyone else? — A. No one but the voter.
Q. Who went in with those who had applied for instructions? — A. Mr.
Gould ie went in.
Q. He was a clerk? — A. Yes, sir.
Q. Did the inspectors go in with Mr. Gould le? — A. No; no one did any time 1
was there during that day. I never saw more than one person In with the voter
in any of the booths.
Q. What different men besides Mr. Gouldle went in wltl5 those who a|)plled
for instructions? — A. Mr. Kuowles went in.
Q. Anybody with him? — A. No one but the voter.
Q. Mr. Knowles was, as you understood it, a Republican? — A. Yes, sir; I
always understood he was a Republican.
Q. I>ld this man John C. Nichols assist any in helping the voters in reference
to marking their ballots in the booths? — ^A. Not that. I know of.
Q. You didn't notice that? — A. No, sir.
Q. With this one exception that you have mentioned of this elderly gen-
tleman— Mr. Ferguson — only one lns[)ector went in with the voters who ai)i)lied
for instructions? — A. That is all I saw at that time.
Q. No challengers went in excei)t in that one instance that you noticed? —
A. No, sir.
Q. Were you asked at any time to go into the booth when Instructions were
given to voters? — ^A. No, sir.
Q. Did you hear the inspectors ask any of the challengers, if any others were
there, to go in when these instructions were given to those voters? — A. No, sir;
I didn't hear them ask anyone to go in.
Q. Were you or not around there that day within the voting place within
hearing distance if a conversation took place there in an ordinary tone? —
A. Tes, sir; I was in a position to hear it, I think, about all the time.
52 CABNBY VS. SMITH.
Q. Did I understand you to say that John G. Nichols was the only one who
acted as Inspector besides Mr. Hamilton and these other fellows, Mr. Barber
and Knowles, Hamilton, Barber, and Nichols, and Knowles, too?— A. Yes, sir.
Q. Were there any others who assumed to act as inspectors of election that
day besides those? — ^A. Not that I know of.
Q. When John C. Nichols was receiving those ballots and depositing them,
where was he standing or sitting, as the case may have been; or located, in
that voting place with reference to where the other inspectors of that election
were who were then acting there? — ^A. On the opposite side of the booth.
Q. Ck)uld the other inspectors see what John C. Nichols was doing when
Nichols was depositing and receiving those ballots? — A. No, sir.
Q. What was there to prevent the other Inspectors from seeing what Nichols
was doing there when receiving and depositing those ballots? — ^A. They were
on the opposite side of the booth.
Q. How high were those booths, approximately? — A. I should say they were
in the neighborhood of 7 feet ; possibly more than that.
Q. How many were there of those booths? — ^A. Four, if I recollect right.
Q. Were they attached together consecutively one after another? — ^A. Yes, sir.
Q. As they were attached together they constitued a row of booths aggre-
gating how many feet would you say in length? — ^A. I should say about 12
feet.
Q. As I understand, when John C. Nichols was receiving and depositing those
ballots from the voters, that he was alone where he was doing that work, and
the other inspectors of election were on the other side of those booths? — ^A. Yes,
sir.
Q. Did he remain there during the counting of the ballots? — ^A. Yes, sir.
Q. Until the count was completed or not? — A. The count was completed.
Q. Was E. G. Pray there that night while the counting was going on? — ^A. A
very short time.
Q. Have you any personal knowledge of what disposition was made of the
ballot boxes in that second ward precinct that night? — ^A. No, sir; I know
nothing of what was done with them.
Q. Well, do you know what became of the ballots that were counted there in
that precinct?
Mr. Maynard. I will interpose an objection to that; there is nothing in the
contest warranting imy inquiry along this line, so I will object to it as incom-
petent and immaterial.
Mr. Adams. We may want to make an amendment
Mr. Fellows. Then the amendment should be made now.
Mr. Adams. If we make any application for an amendment we will put it in
before you take your testimony.
Q. Do you know what became of the ballots that were counted there In that
precinct that night? — A. I saw Mr. Pray take a number of the bundles as they
were rolled up ; he had them under his arm.
Q. Was that E. G. Pray?— A. Yes, sir.
Q. Was he or not the same Pray who was a candidate on the Republican
ticket for a member of the Legislature of the State of Michigan at that elec-
tion?— ^A. He was the same man; yes, sir.
Q. Do you know what he did with them?— A. No ; I do not
Q. Where did he take them? Where did you see him go when he had them? —
A. I don't think I saw him leave the booth ; I think as soon as the ballots were
counted I came out ; and, if I recollect right, Mr. Pray was there yet when I
left.
Q. Was Mr. Pray to your knowledge — or personal knowledge — sworn in as a
member of the board that day, or a clerk of the election, or as any officer that
had anything to do with the election or counting the ballots? Did you hear
him sworn in ? — ^A. I did not ; no, sir.
Q. Where did Mr. Pray live — what ward — on the 5th day of November last? —
A. I don't know as I can answer that question.
Cross-examination by Mr. Mayitabd:
Q. You don't know whether they were used or unused ballots, do you? — ^A. I
don't Just understand the question.
Q. I mean whether you could tell — whether you know for certain — whether
those ballots that you claimed you saw under his arms were those that had
been voted or was unused ballots? — ^A. I couldn't say for that.
GABKEY VS. SMITH. 5S
Q. You didn't notice what It was he had under his arm? — ^A. I know they'
were rolled right up and strings tied around them; that Is about all I know
about It. I know, altogether, that he had several rolls In his hands.
Q. After they were counted? — ^A. Yes, sir.
Q. Now, these booths were canvas booths? — ^A. Yes, sir.
Q. How many did you have there In the ward? — ^A. Four, I think.
Q. Where was this election held?— A. It was held In the basement of the
courthouse.
Q. In the basement?— A. Yes, sir.
Q. It was a very small place, was It not? — ^A. It was not very large.
Q. These booths were portable booths, made to put together? — ^A. Yes, sir.
Q. Made out of canvas?— A. Yes, sir.
Q. So that you could hear everything that was said all around that booth? —
A. Yes, sir.
Q. In the lobby was a low celling? — ^A. Quite low, I think.
Q. And these booths were put In the west end of the lobby? — ^A. Yes, sir.
Q. For the railing you had ropes surrounding the booth or voting place? — ^A.
Yes. sir.
Q. Was there one of the lobbies, or one of the alleys, on the west side of this
booth? — ^A. Yes, sir; there was a space between the end of the booth and the
west wall of the room.
Q. And an alley going around on the north side? — ^A. Yes, sir.
Q. That wait to the urinal or water-closet north of the booth? — ^A. Yes, sir.
Q. And a door opened there? — ^A. I think so; yes, sir.
Q. And an alley or hall leading from that lobby, to the west, to the ofiBlces of
the drain commissioner? — ^A. Yes, sir.
Q. On the other side of the booth a hall running to the office of the school
commissioner? — A. Yes, sir.
Q. So that this lobby was a sort of a public place, with doors opening there
all around?— A. Yes, sir.
Q. During the time you were there, was It true that this booth or voting place
was surrounded by the general public during all the time — men standing
around? — A. Quite a good many; yes, sir; at different times.
Q. About what time was it you saw John 0. Nichols taking the ballots and
putting them into the ballot box? — A. That was along about the noon hour If
I recollect right.
Q. You are not exact about the time, are you? — A. No.
Q. You don't even know to an hour of the time the polls opened, do you? —
A. I wouldn't want to say.
Q. How. did you happen to see John C. Nichols putting those ballots In the
box? — ^A. Well, sir, I happened to have a seat right near him.
Q. You had a seat right near him? — ^A. Yes, sir.
Q. On the north side of the booth? — A. Yes, sir.
Q. You saw him when he took the ballots? — ^A. Yes, sir.
Q. When he started in? — ^A. Yes, sir.
Q. You were right there by him? — ^A. Yes, sir.
Q. Did you see anyone else around there besides yourself? — A. There were
different people coming in and standing around.
Q. On the outside of the rope? — ^A. Yes, sir; a good part of the time.
Q. When the voters handed the ballots and he went and put them into the
box, where did they go; how did they get out from the rope inclosure? —
A. They passed to the southeast comer and went out there ; there was an opt-
ing there for them to go out — the southeast corner of the voting place.
Q. Did they have to pass you, or were you to the west? — ^A. I was inside
part of the time, and when I was inside I was clear to the west side, and when
I was on the outside I occupied a seat about that way [Indicating] from where
the gentleman took the tickets.
Q. Which way from the man who took the tickets? — ^A. A little south and a
little bit east
Q. South and east from the one who took the tickets? — ^A. Yes, sir.
Q. Then, the voters passed by you to go out? — ^A. They passed out inside of
that rope.
Q. You had a seat on the outside of the rope? — ^A. Yes, sir; most of the time.
Q. It was a very small place there, was it not? — ^A. Not very large.
Q. How much room was there between the rope and the booth? — A. I should
Imagine about 3 feet, possibly 4.
54 CARNEY VS. SMITH.
Q. Did they take down the booth before you counted the ballots? — ^A. No, sir.
Q. You are positive about that? — ^A. I feel quite positive.
Q. Did tliey move it out of the way? — ^A. I have no recollection of their mov-
ing It; no, sir.
Q. If they took that down before they began counting, you don't now remem-
ber It? — A. I don't remember of them taking it down; I don't think they. did.
Q. Where did they begin to count — which side of the booth? — A. On the north
side.
Q. Did they have tables there? — ^A. Yes, sir.
Q. How many of them were there engaged In coimting? — A. I saw Mr.
Knowles; he did the counting.
Q. That is, he read the ballots? — A. Yes, sir; Mr. Gouldie and Mr. Preston
were acting as clerks.
Q. Mr. Knowles was the alderman from that ward, was he not? — ^A. Yes, sir.
Q. And when Mr. Hamilton was taken sick and went home Mr. Barber was
appointed in his place? — ^A. He took his place.
Q. Do you know how much time elapsed from the time Mr. Hamilton left
before Mr. Barber took his place? — ^A, No, sir; It was but a very short time; I
am not sure how long.
Q. Mr. Barber didn't go there until the noon hour? — A. Yes, sir.
Q. He was there when you saw Mr. Hamilton taking the tickets? — ^A. No, sir;
I don't remember of seeing Mr. Barber there before; but I was told that Mr.
Hamilton was sick
Q. (Interrupting.) Never mind that. You heard he was sick? — ^A. Yes, sir.
Q. Who did you hear say that?
Mr. Adams. I move to strike out what he heard and object to the question as
calling for hearsay evidence and as Immaterial.
Q. Who did you hear say he was sick?
Mr. Adams. The same objection.
A. I don't know; I couldn't say who I did hear say he was sick.
Q. You learned, anyway, that he was sick? — A. Yes, sir; I understood he
went home sick.
Q. Do you Imow of their sending for Mr. Barber? — ^A. No, sir; I don't know
who sent for him or anything about It.
Q. Who told John C. Nichols to take the ballots until they got some one
there? — ^A. I didn't hear anyone tell him.
Q. Did you hear anybody say anything about it? — A. No, sir.
Q. It was not but a few moments before Mr. Barber took his place? — ^A. It
wasn't but a little while.
Q. Were you right there by Mr. Nichols all the time he was acting in that
capacity? — A. Yes, sir.
Q. You didn't see Mr. Nichols do anything but receive the ballots, put them
In the box, and call out the names? — ^A. That is all I saw.
Q. He didn't open any ballots there; you would not have permitted that? — ^A.
No, sir; I didn't see him open any.
Q. Now, Mr. Overmyer, in the former part of your direct examination you
say you saw one have his ballot marked, and that was Elder Ferguson? — ^A.
Yes, sir.
Q. That is the only man you saw have his ballot marked by anybody ejse? —
A. Yes, sir; when I was in the booth there.
Q. If they asked for instructions or assistance, you don't know whether any-
body marked their ballots for them, do you, except this one man Elder
Ferguson? — ^A. I don't know of any others.
Q. How long had you Imown Elder Ferguson? — A. Well, I have known him
for, I guess, 20 years.
Q. How long has he been blind so he could not mark his ballot? — ^A. He was
not blind, but his eyesight has failed, and he Is quite feeble.
Q. Did you ever know of his having his ballot marked before? — ^A. I don't
know.
Q. Do you know whether Mr. Knowles is acquainted with him? — ^A. I don't
iknow whether he is or not.
Q. Were his eyes so aflPected you could notice it by looking at him when he
was walking on the street? — A. He looked so to me; yes, sir.
Redirect examination by Mr. Adams :
Q. I understood you to say that others besides Mr. Ferguson, who applied for
Instructions that day there, that some of the Inspectors went into the booths
with those others? — A. Yes, sir.
OABNEY VS. SMITH. 55
Q. But you don't know just what occurred In tliere? — ^A. No, sir; I do not.
Mr. Maynabo. I understand it is the rule that you should exhaust the witness
unless something new has been called out. It is an improper way to conduct
the examination of a witness to examine him a little while, then turn him over
for cross-examination, and then commence on the same topic again.
Q. Did you notice wtiat was done with any of those ballots that went into
these rolls that you say Mr. Pray had on his arm there after the counting that
evening or day? Do you know what had been done with them when they began
counting there, these ballots that Mr. Pray got? — ^A. The ballots were being
counted and rolled up.
Q. Were the ballots or any of them rolled up in the rolls that Mr. Pray got
there tliat evening, the ballots tliat the officers and clerks of the election had
been using there in making the count of the vote of the election that day?
Mr. Maynabd. The witness has been asked that question twice, and he stated
both times that he didn't know whether they were ballots that had been u^:ed
or were unused ballots. I object to it as leading and suggestive.
Mr. Adams. I think you are mistaken about that. We will ask him again.
A. It Is pretty hard for me to tell what was on the inside of the papers
when rolled up with the unprinted side outside. If they were not ballots that
had Just been counted, why, then, I don*t know anything about what went on
there that day. I am positive they were, but, as a matter of course, I can not
read through a stone wall or nothing of the kind.
Q. Those ballots that Mr. Pray picked up, or got, rather, that were in the
rolls he got that you have spoken of, where did those ballots come from when
they were put into those rolls, did you notice? — ^A. They were laying there
as counted; they were rolled right up and strings tied around them. I helped
tie some of the strings around ; so did Mr. Nichols.
Q. Those were tied up, those that were on the table where you helpe<l tie
up some — were those the ballots that had been voted there that day? — A. I am
satisfied in my own mind they were; but, just as I said awhile ago, I couldn't
read them after they were folded and the i)rinting on the inside.
Q. Did you see any ballots brought on that table before those were counted
up from any other place in the voting precinct there that day? — A. No, sir; I
did not.
Recross-examination by Mr. Maynabd:
Q. Did you see any ballots put in the ballot boxes? — A. Yes, sir.
Q. You saw the ballots sealed after they got through counting? — A. I didn't
see them sealed;, no, sir; I didn't notice.
Q. You left before they were sealed? — ^A. No, sir; I presume not; I pre-
sume it was sealed ; but when you come to Siiy I saw it, I did not.
Q. You could not tell what the ballots were from the papers you saw on his
firm? — ^A. You have my statement.
Q. You said you could not; I supiwse tliat was right? — (No answer.)
Q. Now. Witness, you don't know but what the ballots that were counted
were folded and put in the ballot box and the ballot box sealed with them
in it, do you? — A. I didn't see anything of that kind done.
Q. You' don't know but what it was done? — A. No, sir; I don't know but
what it was done.
Q. I will ask you how many men you saw there asking for Instructions as
to their ballots? — A. I didn't keep any count.
Q. Can you name any other besides Mr. Ferguson? — A. No, .sir; I can't
tell the names of any others. My observation of that matter was taken by
the number of people I ssiw In the booth.
Q. You don't know what was sjild at all? — A. No, sir.
Q. You saw some feet imder there? — A. They went in for Instructions; I
don't know who they were; If I knew at the time I don't remember now.
Q. You don't know that anyone asked any ix^rson at the l)ooth to mark
their ballot for them, except Mr. Fergm^on? — A. No, sir; I do not.
Redirect examination by Mr. Adams :
Q. Were there others who asked for instructions as to how to mark their
ballots besides Mr. Ferguson that day? — A. I couldn't say that I heard them.
Q. Did you hear them ask — others besides him? — A. No. sir.
Q. Besides Eflder Ferguson ask for any Instructions that day? — A. He was the
only one I heard ask.
56 CAKNEY VS. SMITH.
Q. Well, did you see, If you did not hear, anyone ask for Instructions; did
you see the inspector in the booth there that day with any other voters besides
Elder Ferguson? — Yes, sir.
Q. How many different ones, besides Elder Ferguson, do you recall that the
Inspector went into the booth with them that day — your best recollection? —
A. I should say half a dozen or such a matter, in my judgment.
Q. Did you hear what was said, if anything was said, or any talk was had
with those others than Mr. Ferguson when the Inspector was In the booth? —
A. No, sir.
Q. You didn't hear the conversation? — A. No, sir.
MYRON HAWKINS, being by me first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified as follows :
Direct examination by Mr. Adams:
Q. Mr. Hawkins, where do you reside? — ^A. In Charlotte.
Q. I think you have lived here sometime? — A. Yes, sir; 12 or 13 years.
Q. Continuously? — ^A. Yes, sir.
Q. Your age? — ^A. I am 45.
Q. Were you or not a member of the board of county canvassers of Eaton
County following the November 5, 1912. election, and of the votes cast at that
election? — ^A. I was appointed a member of the board — a special member for
that election owing to the illness of one of the regular members.
Q. Did you become a member of that board when the board convened? —
A. Yes, sir.
Q. Did you assist in the beginning of its work and remain a member of the
board of canvassers until the work of the board was completed? — A. Yes, sir.
Q. Where did the board meet? — A. In the coimty clerk's office.
Q. In the courthouse In Charlotte? — A. Ye8» sir.
Q. Who were the members of the board besides yourself? — A. James H.
Brown, chairman, and George Little. I think his middle name is H.
Q. Who acted as clerk of the board? — A. The county clerk.
Q. John C. Nichols?— A. Yes. sir.
Q. Had you been acquainted with John C. Nichols before that election or
not? — A. Yes, sir; for some time.
Q. Was that John C. Nichols, or not, the same John C. Nichols who was a
candidate for circuit court commissioner on the Republican ticket In this county
at that November 5, 1912. election? — A. He was the same one.
Q. How long did that board of canvassers remain In session? — ^A. I think
three days.
Q. Do you recollect on what date it convened? — A. Yes, sir; I think on
Tuesday at 1 o'clock.
Q. Of what month? — ^A. November; the date I am not positive of.
Q. How were the returns from the various precincts In the county presented
to the board of canvassers? In what shai^ were they In when presented? —
A. Well
Q. (Interrupting.) Were they contained in anything? — A. I think they were
contained in the original envelopes in which they came; that is my Impression,
although I am not sure about that.
Q. Who brought the returns from the various precincts In the county of
Eaton before your board of canvassers? — A. I think the original returns were
on the table In the Inner room of the county clerk's office when we went in,
that Is my impression: if not there they were brought quickly afterwards, by
whom I could not say.
Q. Were or were not those returns that were on the table when your board
convened — were the envelopes containing those returns unsealed or sealed? —
A. Those were all unsealed.
Q. Unsealed? — A. Yes, sir.
Q. Did you examine them? — ^A. We did not use those In making the canvass
because of the fact that they were addressed to the county clerk and we knew
they had been oi)ened and the returns made from them and placed In a book.
Q. What book? — A. In the statement of the vote.
Q. You mean the report you finally made? — ^A. I think that report you have
In your hand, or similar to that.
Q. I will show you Exhibit 6, for Identification only, and ask you whether
that Is the canvass and determination made by your board of canvassers of the
election referred to?— A. Yes, sir; I think It Is; It appears to be.
««
CABNET VS. SMITH. 57
Q. Is that your signature appended there?— A. Yes, sir.
Q. After examining it, what do you say whether it Is or not?— A. Yes, sir;
that is the canvass our board made.
Q. In whose handwriting are the names of the townships and election dis-
tricts, if you know, and the figures and the respective officers at the head of
the columns under which the figures appear? Whose handwriting, if you know,
is that? — ^A. I couldn't tell you whose handwriting it Is.
Q. When your board convened were any of those names — the townships, elec-
tion districts, and the names of the candidates for the respective offices, as con-
tained in that exhibit— written in the book?— A. I think the names of the offi-
cers voted for were, but I would not want to say the townships were, but my
Impression is they were.
Q. In referring to page 12 of Exhibit 6 Just shown you, under the heading,
Representative in Congress," will you state whether when your board of
canvassers convened the figures that appear under the names of John M. G.
Smith, Claude S. Carney, Levant L. Rogers, and Edward N. Dingley were in
that book when you convened, on that page? — ^A. Yes, sir.
Q. State whether at the time you convened the totals were here opposite
the figures under the names I have just read, under the head, " Representative
in Congress," were contained in that book or not? — A. I think they were.
Q. The envelopes which you stated were on the table in the clerk's office
when your board convened, how were those containing these election returns —
to whom were those envelopes addressed ? — ^A. To the county clerk.
Q. Were those envelopes, when your board first met to canvass the votes in
the precincts of the county, all open — seals broken? — A. I think they were,
yes, sir.
Q. Now, did your board of county canvassers examine any of the returns of
the several election boards of the votes that were cast in those several pre-
cincts in this county at the November 5, 1912, election? — ^A. Yes, sir.
Q. What returns did the board of canvassers examine in making your can-
▼ass? — ^A. We examined the duplicate retums that went to the judge of probate.
Q. Those duplicate retums, as you call them, were they or not before your
board for examination? — A. Well, we asked for them as quick ns the board
convened.
Q. Were they delivered to the board? — A. Yes, sir; we got them from the
vault, Mr. Brown and myself.
Q. What vault? — A. The vault of the judge of probate.
Q. Were those retums contained in anything? — A. Yes, sir; in the original
envelopes in which they were addressed to the judge of probate.
Q. They were contained in the envelopes addressed, to the judge of probate—
oddressed to the board of county canvassers, care of the judge of probate or
the probate register at Charlotte, Mich.? — A. Yes, sir.
Q. Were those envelopes, which you say you obtained from the office of the
judge of probate, all sealed when you got them from that office or not all
sealed? — A. Well, I am not sure they were all Fiealed: I would not want to say
they were not or that they were. It is my impression that tlioy might not have
been all sealed.
Mr. Maynard. I move that the answer go out. He says he does not know.
Q. What Is your best recollection about It? — A. Well, we had a discussion
with reference to whether one or two of them were broken open or not by the
board.
Q. For the purpose of refreshing your recollection. Is it not a fact that when
the retums from the election precincts of this county of Eaton were obtained by
your board of canvassers from the office of the judge of probate, that there
were from five to seven of those envelopes containing returns — election re-
turns— on which the seals on the envelopes were entirely broken? — A. I don't
think there were as many as that
Q. How many were there? — A. Well, I don't like to try to answer that ques-
tion definitely.
Q. Your best recollection. — ^A. I am not sure
Mr. Feli>ow8. He has already testified that he can not say whether any were
broken or not He said he could not testify whether any were broken or not.
Q. Can you give us your recollection how many were broken, if you have a
recollection of any of them being broken? — A. I don't remember how many
there were.
Q. W^ere any of them broken? — A. I think there were perhaps a few of them
that were, but I am not sure about that. I would like to explain in reference
to that When we carried them In another member of the board opened the
58 CABNEY VS. SMITH.
retunis. and I have n remembrance that on one or two occasions lie
to the fact that they were apparently broken in the malL
Q. I suppose you examined the envelopes, did you, or didn*t you? — ^A. We
examined them together.
Q. As a membor of tbe board, did you examine the returns you had received
from the office of the Judge of probate — examine the envelopes containing those
returns? — A. We did as we came to them. We used the returns of each town-
ship to check against the vote.
Q. Did you have to take them out of the envelopes to do that? — A. Yes, slr^
Q. In taking them out of the envelopes, as a member of that board, did you
examine those envelopes yourself personally? — ^A. No; I couldn't say that I did.
Q. Who did oi)en them? — A. Mr. Brown, the chairman of the board.
Q. I have had six of these envelopes marked by the commissioner, beginning
with Exhibit 7 and ending with Exhibit 12 ; all of them, each one of them, are
addressed to the board of county canvassers, care the probate judge or register
of probate at Charlotte, Mich. Will you examine those; then I will ask you to
state whether you did or did not examine those particular envelopes at any
time while your board of county canvassers were convened? — A. We examined
all of the returns that were delivered to us by the judge of probate.
Q. I call your attention to Exhibit 7. Did you notice wh^i that envelope
came to your board of canvassers it had indorsed on it, *' Received in bad con-
dition at Charlotte, Mich.*'?— A. Yes, sir.
Q. I call your attention to Exhibit 8 and ask you whether when your board
was in session you did or did not i)ersonally observe that there was this in-
dorsement on Exhibit 8: "Received in bad condition at Charlotte, Mich."? — A.
Mr. Brown calle<l our attention to that — they were brought in as quick as he
picked them up — indorsement on the envelope.
Q. I call your attention now to Exhibit 9, which purports to be the returns
from Bellevue Township, Eaton County, addressed to the '* county board of
canvassers, care judge of probate." Did you notice when that envelope came in
before your board of county canvassers it had Indorsed on the back of it,
*' Rweiveil imsealed by carrier No. 4, Hall"? — A. Yes, sir.
Q. Did you notice that indorsement was on that when that particular en-
velojw came before your board? — A. I noticed it at the time, and the matter
was discussetl by the board during our session; I don't know whether liu-
niediately when it was re<*eived or whether it was later.
Q. I call your attention to Exhibit 10, which purports to be the returns from
the township of Eaton Rapids, Eaton County. Did you notice when that return
came before your board of amvassers that it had indorsed upon it, " Received
unseale<l at Charlotte, Mich.*'? — A. I don't remember that; no, sir.
• Q. I call your attention to Exhibit 11, purporting to be the returns from the
township of \'erniontville, Eaton County, and ask you whether when that en-
velope came before the board of canvassers, whether you did or did not notice
Indorsed ui)on the back of that these words, " Received unsealed by carrier No.
4, Hall"? — A. That matter was discussed by our board at the time they
came in.
Q. 1 call your attention to the returns from the townsliip of Windsor, Eaton
County, Exhibit 12. State whether you noticed personally at the time that
return came before your board of canvassers whether there was an indorse-
ment on it as follows: "Received unsealed at Charlotte"? — A. I don't remem-
ber of noticing that.
Q. The indorsements that I have called your attention to, as to the condition
of the sealing, on Exhibits 7. S. 10, and 12, are Indorsed on those resi>ective
exhibits by means of a stamp, are they not? — A. Yes, sir.
Q. Evidently a rubber or metal stamp? — ^A. Yes, sir.
Q. And on Exhibits 9 and 11 the Indorsements of the unsealing are written
on in ink'? — ^.V. Yes, sir.
Q. On the back of the two exhibits? — A. Yes, sir.
Q. The sealing on the back of these exhibits in each instance, those I have
referred to. are sealing wax and the stamp or impression made in the wax so
It is readable wherever the sealing wax is sufiiciently preserved? — A. Yes. sir.
Q. That was right over the folder that closed the envelope containing the
returns*^ — A. Yes, sir.
Q. So If those seals had been unbroktni when they came to your board,
without in some way cutting or tearing the envelope the returns could not have
been seen? — A. No, sir.
Q. Don't you know that each one of those that I have called your attention
to were, as a matter of fact, unsealed when they were presented to your board
CABNEY VS. SMITH. 59
of county canvassers? — ^A. Well, I should presume that they were; that would
indicate that they were.
Q. You noticed that some of the seals had been broken before your board,
did you? — ^A. Yes, sir; the chairman called our attention to it.
Q. Did ycMi or not notice any member of your board brea Icing any of the
seals of some of tlie eovetopes? — A. I think I broke some of the seals myself,
probably not more than one or two ; Mr. Brown was called out for — and I did
that while he was out
Q. Having called your attention to these Exhibits 7 to 12, inclusive, I ask
you now whether your best recollection is not that each one of those exhibits
had its seal on the envelope broken when they came into the possession of your
board of county canvassers when you met first? — A. I think probably they
were; yes, sir.
Q. Did you have, when your board met there, the returns from every precinct
in the county of Eaton — obtained, I mean, from the Judge of probate's office? —
A. I think not.
Q. What precinct did you fail to receive an envelope and election returns
from in those you got from the judge of probate's office? — A. I couldn't tell
you now.
Q. Do you recollect — for the purpose of refreshing your recollection I sug-
gest it — that it was from the township of Carmel that there was no return
among those received from the office of the judge of probate? — ^A. No, sir; I
don't recall what township it was that was missing. When we came to one
certain town on the statement blank you have before you we looked for the
returns from that township and we didn't have them.
Q. Did you make any further effort than you originally made in getting the
returns for finding the missing returns? What further did you do to find out? —
A. Mr. Brown and I went back to the Judge of probate's office and called his
attention to the fact that the returns from that township were missing.
Q. What township? — ^A. From that township we missed.
Q. What township? — A. The one we were looking for — I couldn't tell yon
what township. We called his attention to the fact that It was missing, and
he assured us that the returns had been placed by himself in the vault, and
we looked in the vault again to see whether we had overlooked it, but it was not
there.
Q. Did you find that return in the custody of the Judge of probate at any
time while your board was in session? — A. No, sir; we did not.
Q. You then determined your canvass and«made your report without having
received from the Judge of probate the returns from some one precinct In the
county of Eaton? — A. Yes, sir.
Q. In getting at the canvass of the vote in that particular precinct what did
you make the canvass from? — ^A. We had to use the canvass from the county
clerk ; we had nothing else to go by.
Q. That was open when it came into the hands of your board? — A. Yes, sir.
Q. Did you have any sealed returns from the second ward In the city of
Grand Ledge, Mich., the township of Eaton Kapids, the township of Windsor,
the township of Bellevue, the township of Vermontvllle, and the first ward in
the city of Grand I.edge, Mich., that you received from the office of the Judge
of probate or from the office of the county clerk from which to make your
canvass of those precincts I have just mentioned? — A. I would not want to
say that we did.
Q. What do you say as to whether you did or did not? — A. Evldentlv we
did not.
Mr. Adams. I will offer in evidence from page 12 of Exhibit 6 the names of
the candidates, the first heading being this: " Statement of votes given at the
general election held Tuesday, November 5, 1912." Under that heading, " Rep-
resentative in Congress." Under the heading " Representative in Congress "
iB "John M. O. Smith, Claude S. Carney, Levant L. Rogers, Edwin N. Dlngley."
Under the heading, over to the left-hand side of page 11, under the heading
** Names of township and election districts " :
BELLEVTJE.
Under the name of Jolm M. C. Smith 246
Under the name of Claude S. Carney 155
Under the name of Levant L. Rogers 2
Under the name of Edwin N. Dlngley 45
Total 448
60 CABNEY VS. SMITH.
BKNTON.
Under the name of John M. C. Smith 158
Under the name of Claude S. Carney 102
Under the name of Levant L. BogerB ^ 4
Under the name of Edwin N. Dingley 27
Total 291
BBOOKFIELD.
Under the name of John M. C. Smith 87
Under the name of Claude S. Carney 96
Under the name of Levant L. Rogers 0
Under the name of Edwin N. Dingley 41
Total 230
CABM EI/-BBOOKFIELD.
Under the name of John M. C .Smith 137
Under the name of Claude S. Carney 82
Under the name of Levant L. Rogers
Under the name of Edwin N. Dingley 16
Total 235
GHESTEB.
Under the name of John M. C. Smith 109
Under the name of Claude S. Carney 93
Under the name of Levant L. Rogers
Under the name of Edwin N. Dingley 44
Total 246
DELTA.
•
Under the name of John M. C. Smith 110
Under the name of Claude S. Carney 95
Under the name of Levant L. Rogers 4
Under the name of Edwin N. Dingley 68
Total ^ 277
EATON.
Under the name of John M. C. Smith 139
Under the name of Claude S. Carney 43
Under the name of Levant L. Rogers
Under the name of Edwin N. Dingley 40
Total 222
EATON BAPIDS TOWNSHIP.
Under the name of John M. C. Smith 98
Under the name of Claude S. Carney 75
Under the name of Levant L. Rogers 4
Under the name of Edwin N. Dingley 50
Total 227
HAMLIN TOWNSHIP.
Under the name of John M. C. Smith 87
Under the name of Claude S. Carney 77
Under the name of Levant L. Rogers 2
Under the name of Edwin N. Dingley 67
Total 233
OABNEY VS. SMITH. 61
KALAMO TOWNSHIP.
Under the name of John M. C. Smith 116
Under the name of Claude S. Carney 108
Under the name of Levant L. Rogers 2
Under the name of Edwin N. Dingley 58
Total 278
ONEIDA TOWNSHIP.
Under the name of John M. C. Smith 69
Under the name of Claude S. Carney 94
Under the name of Levant L. Rogers 8
Under the name of Edwin N. Dingley 43
Total ^ 214
BOXAND TOWNSHIP.
Under the name of John M C. Smith ^_ 169
Under the name of Claude S. Carney 61
Under the name of Levant L. Rogers
Under the name of Edwin N. Dingley 70
Total — 300
SUNFIELD TOWNSHIP.
Under the name of John M. C. Smith 174
Under the name of Claude S. Carney 104
Under the name of Levant L. Rogers 1
Under the name of Edwin N. Dingley 66
Total 345
VEBUONTVnXE TOWNSHIP.
Under the name of John M. C. Smith 110
Under the name of Claude S. Carney 140
Under the name of Levant L. Rogers 2
Under the name of Edwin K Dingley 136,
Total 388
WALTON TOWNSHIP.
Under the name of John M. C. Smith 139
Under the name of Claude S. Carney 135
Under the name of Levant L. Rogers 3
Under the name of Edwin N. Dingley 86
Total 363
WINDSOB TOWNSHIP.
Under the name of John M. C. Smith 174
Under the name of Claude S. Carney 92
Under the name of Levant L. Rogers 3
Under the name of Edwin N. Dingley 76
Total 344
OHABLOTTE, FIRST WARD.
Under the name of John M. C. Smith 71
Under the name of Claude S. Carney 65
Under the name of Levant L. Rogers . 7
Under the name of Edwin N. Dingley 18
Total 1^1
62 OABNEY VS. SMITH.
SECOND WABD, CITY OF CHARLOTTE.
Under the name of John M. C. Smith 161
Under the name of Claude S. Carney 107
Under the name of Levant L. Rogers 10
Under the name of Edwin N. Dlngley i>» 22
Total 300
THIBD WARD, CITY OF CHARLOTTE.
Under the name of John M. C. Smith , 214
Under the name of Claude S. Carney 116
Under the name of Levant L. Rogers 2
Under the name of Edwin N. Dlngley 31
Total 363
FOURTH WARD, CITY OP CHARLOTTE.
Under the name of John M. C. Smith 229
Under the name of Claude S. Carney 140
Under the name of Levant L. Rogers 3
Under the name of Edwin N. Dlngley 47
Total 419
FIRST WARD, EATON RAPIDS.
Under the name of John M. C. Smith 119
Under the name of Claude S. Carney 63
Under the name of Levant L. Rogers : 3
Under the name of Edwin N. Dlngley 44
Total-, 229
SECOND WARD, EATON RAPIDS.
Under the name of John M. C. Smith 99
Under the name of Claude S. Carney . 45
Under the name of Levant L. Rogers 2
Under the name of Edwin N. Dingley 30
Total 182
THIRD WARD, EATON RAPIDS.
Under the name of John M. C. Smith 81
Under the name of Claude S. Carney 70
Under the name of Levant L. Rogers 5
Under the name of Edwin N. Dingley 49
Total 205
FIRST WARD, GRAND LEDGE.
Under the name of John M. C. Smith 142
Under the name of Claude S. Carney - 141
Under the name of Levant L. Rogers Z^^ 10
Under the name of Edwin N. Dingley 128
Total 421
SECOND WARD, GRAND LEDGE.
Under the name of John M. C. Smith 65
Under the name of Claude S. Carney 91
Under the name of Levant L. Rogers 11
Tender the name of Edwin N. Dlngley 103
Total 270
CABNET VS. SMITH. 68
Mr. Adams. I offer In evidence, as contained on imge 27 of Exhibit 6, the
following : " Statement of votes given at the general election held Tuesday,
November 5, 1012." The whole number of votes given for the office of Repre-
sentative in Congress was 7,191. They were given for the following-named
persons :
John M. C. Smith received 3,302
Claude S. Carney received 2,390
I^evant L. Rogers received 94
Kdwin N. Dingley received 1^405
Total 7, 191
Cross-examination by Mr. Fellows:
Q. When you came up here you found that the returns in the clerk's office
had been opened and the vote had been tabulated in this book which is marked
"Exhibit 6"?— A. Yes, sir.
Q. Those returns were on the table in one of the rooms of the clerk's office? —
A. Yes, sir.
Q. You and the other meml>ers of the board of county canvassers then went
to the vault of the judge of probate, and from that you got the returns ad-
dressed to your board? — A. Yes, sir.
Q. That had been sent in tlie care of the Judge of probate or the register? — A.
Yes, sir.
Q. You opened those and went over and checked up with this tabulation? — A.
Yes, sir.
Q. And you found in each and every instance that the tabulation was cor-
rect?— A. Well, that is hardly right as to all of them.
Q. If there were errors, you made the corrections yourself? — A. Yes, sir.
Q. Now, these envelopes that were sent to your board the wax on the back
of them is brittle wax? — ^A. I presume it is.
Q. You examined it so as to be able to say definitely? — ^A. Yes, sir; it la
Q. In the seals or under the sealing wax you can see that the election seal
of the various precincts has been impressed in this wax when hot? — A. Yes, sir.
Q. And that wax has dropped down over the flap of the envelope? — ^A. Yes,
sir.
Q. And then the election seal put on them while hot and left to cool after-
wards?— ^A. Yes, sir.
Q. After It cooled it became brittle? — ^A. I presume that is so.
Q. By an examination you would say that is so, wouldn't you ? — ^A. Yes, sir.
Q. In the matter of these precincts where you found that they had been
received at the judge's office or the post office here in bad condition, you found
no discrepancy in any of those from the returns already on hand? — A. I don't
recall any.
Q. You found no apparent alteration or erasure in any of those where the
seals were broken? — ^A. No, sir.
Q. Who were the members of your board? — A. James H. Brown, George
Ijttle. and the county clerk, I believe, was secretars*.
Q. The county clerk is a member of the board and is secretary? — ^A. Yes, air.
Q. To what party did Mr. Brown belong? — ^A. He is a Republican, I think.
Q. To what party does Little belong? — A. I couldn't answer that question.
Q. You are a Democrat? — A. Yes, sir; supposed to be.
Q. Isn't it your recollection that Little is a Democrat? — A. I have been told
he was.
Mr. Adams. I move that answer be stricken out as hearsay.
Q. Your understanding was that it w^as a Democratic board?
Mr. Adams. I object to what he understood as incompetent, irrelevant, and
inmiaterial.
Q. Answer the question. — A. I have been told it was Democratic.
Q. Was it not your understanding that Mr. Little was a Democrat? Is there
any question in your mind about his being a Democrat?— A. No, sir; I don't
know as there is.
Q. There is no question in your mind about your being a Democrat?— A. No,
sir.
Q. There is no question in your mind about the board being Democratic? —
A. Supposed to be.
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial and
calling for a conclusion.
64 CARNEY VS. SMITH.
Q. Now, did you see anybody appear before that board in behalf of Mr.
Carney and protest the counting of the ballots? — ^A. Yes, sir.
Q. Who appeared there? — ^A. Samuel Robinson.
Q. Did Mr. Carney himself appear? — ^A. Yes, sir.
Q. They protested against the counting of this vote? — ^A. Yes, sir.
Q. Your board held adversely to them? — A. Yes, sir.
Q. Now, I win ask you. Mr. Hawkins, to give us — ^you can find it much easier
than I can — the total vote received by the various candidates on the Democratic
ticket in the county, commencing with the electors.
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
Q'. The total vote in the county on the Democratic electors first. — ^A. The
Democratic electors, the first one was Andrew J. Lavalle; he received 2,481;
that is about the average all the way through.
Q. There Is no material difference on the electors? — A. No, sir.
Q. Now turn to the State ticket ; the governor is first. Before you read the
vote on governor I will ask you this: The Democratic candidate for governor
ran considerably ahead of his ticket in this county and all over?
Mr. Adams. I object to that as Incompetent, irrelevant, and immaterial and
the conclusion of the witness. The figures show for themselves how he ran in
this county, and outside of this county it is irrelevant and Immaterial and In-
competent.
(Ijast question read.)
A. He ran ahead in this county.
Q. Don't you know that he did all over?
Mr. Adams. I object to that as Incompetent, Irrelevant, and immaterial; it is
hearsay and a conclusion.
(Last question read.)
A. I guess that is current knowledge.
Q. He was elected by something like 24,000 on the State ticket and the balance
of the State ticket was something like 30,000 behind the Republicans ; isn't that
correct?
Mr. Adams. I object to that as irrelevant and Immaterial, calling for the
conclusion of the witness, hearsay, and not the best evidence.
A. I am not sure about the figures.
Q. That Is substantially correct?
Mr. Adams. The same objection as to the last question.
A. I presume they were.
Q. Give me the vote on governor. — A. The vote for Ferris was 3,253.
Q. What was the vote for the Democratic candidate for lieutenant governor
in Eaton County?— A. It was 2,632.
Q. The Democratic candidate for secretary of state? — ^A. 2,546.
Q. The Democratic candidate for State treasurer? — A. 2,557.
Q. The Democratic candidate for auditor general? — ^A. 2,528.
Q. And the attorney general? — A. 2,531.
Q. The land commissioner? — ^A. 2,542.
Q. The two Democratic candidates for justices of the supreme court? — ^A. Per-
sons, 2,543, and Yaple, 2,571.
Q. Now give me the Congressman at Large. — A. 2,511.
Q. Give me the Senator, I think is next. — A. Representative in Congress.
Q. Give me that again : I think we have had it once. — A. 2,390.
Q. Give the Senator.— A. Kelly, 2,513.
Q. Now the member of the legislature. — ^A. 2,550.
Q. Now. if you will turn to the county ticket. — ^A. 2,597
Q. That was for sheriff? — A. No; the judge of probate first.
Q. The next? — ^A. The sheriff, 2,831 ; the county clerk, 2,573 ; county treasurer,
2,586 ; the register of deeds, 2,719 ; the prosecuting attorney, 2,838 ; and the cir-
cuit court commissioners, 2.874.
Q. Now the coroner? — A. 2.630 one of them got and the other 2,646.
Q. The surveyor? — A. 2,654.
Q. Did you elect a drain commissioner? — A. Yes, sir; 3,193.
Q. Have you it handy so you can turn to the vote in Sunfield Township, all
those you have given me before, taking the first elector? — ^A. The first Demo-
cratic elector in Sunfield was 105.
Q. Is that a fair average of all of them? — A. Yes; they were all alike.
Q. Now the governor? — A. 137.
Q. Lieutenant governor? — A. 108.
Q. Secretary of state?— A. 105.
CARNEY VS. SMITH. 66
Q. State tre-isurer?— A. 109.
Q. Auditor general?— A. 104.
Q. The attorney general? — A. 105.
Q. The land conmiisRioner? — ^A. 106.
Q. Justices of the supreme court? — A. 106 for Persons and Ynple 107.
Q. Congressman at I^nrge? — A. 106.
Q. Representative in Congress? — A. Carney, 104.
Q. The Demomitic candidate for senator, Kelly? — A. 109.
Q. Member of the bouse? — A 104.
Q. Now turn to the county ticket for the Democratic candidates? — A. 104
for judge of probate, 115 for sheriff, 109 for county clerk, 113 for county treas-
urer, 115 for register of deeds, 110 for prosecuting attorney, 118 for circuit court
commissioner; for coroner, 1(>S for one and 109 for the other.
Q. Suneyor?— A. 113.
Q. How about the drain commissioner? — A. 79.
Q. I show you Exhibit 8, an envelope addressed to the board of county can-
vassers, care the judge of probate or register of probate, purporting to contain
the returns from the first ward of the city of Grand TiCdge. Was there any
mucilage on the flap? — A. No. sir. .
Q. Will you examine those other exhibits shown you by Judge Adams and
see if there is any mucilage on the flaps of any of them? — A. No, sir ; no mucilage
on any of them.
Q. The only method of fastening any of them is with sealing wax? — A. Tbat
is all.
Q. Do you know whether the Republican candidate for drain commissioneT
lived in Snnfleld Township? — A. I think he did; yes, sir.
Redirect examination by Mr. Adams :
Q. At the November 5, 1912, election there were only two tickets fn the field
in the county of Eaton — Republican and Democratic — on the county ticket? —
A Yes, sir.
O. Tn the State outside of the coimty — Representatives in Congress at Large
and Representatives — ^there were four tickets? — A. Yes, sir.
Q. Also on the other State officers and electors? — A. Yes, sir.
Q. As shown by your canvass — Exhibit 6, your attention is directed — how
many tickets were there in the field, as shown by that exhibit, on county
officers in the county of Eaton at the November 5, 1912, election? There were
two tickets as shown by your oanvass In the county of E2aton on county
officers? — ^A. That is all.
Q. It is shown by your canvass, as made and filed by the board of which yon
were a member, on all officers from and Including Representatives in Conajress,
State officers, and the electors for President. There were how many candidates
on the ticket in this county at that election? — A. Four.
Q. I want to get now, if you will read into the record, the total vote In the
county of Eaton for the Republican electors, commencing with governor, the
total vote In the county of Eaton. — ^A. William J. Livingston, Republican
elector, 2,335.
Q. The governor next — the Republican candidate for governor? — ^A. Amos
Mussel man, 2.462.
Q. Lieut, Gov. Ross?— A. 2,742.
Q. Secretary of state? — ^A. 2,801 for Martindale.
Q. State treasurer? — ^A. 2,762; auditor general. Fuller, 2,783; Grant Fellows,
attorney general. 2,797; State land office commissioner, 2,771: justice of the
supreme conrt, Steere, 2,781; justice of the supreme court, Kuhn, 2,792; Con-
gressman at large, Kelly, 2,891; Representative in Congress, Smith, 3,302;
State senator, William Ij. Smith, 2,860; representative. State legislature, E. G.
Pray, 3,117.
Recross-examination by Mr. Fellows:
Q. Give me the count, commencing with judge of probate. — ^A. Judge of pro-
bate. 3.853; sheriff, 3,802; county clerk, 3.570; county treasurer, 3,678; register
of deeds, 3,591; prosecuting attorney, 3,543; one circuit court commissioner,
3.400, and the other commissioner, 3.467; coroner, 3,521 and 8,438; coimty sur-
veyor, 3,523; drain commissioner, 3,187.
286—13 5
66 CABNEY VS. SMITH.
Kodirect exjuniiiatioii by Mr. Adaais:
Q. ^i>u \vt*re askeil wliotlior (hore wus i^iiy iniici- :^t' sJiuwint^ on tlieso ex-
hibits, thi'se retiiMis to llie jiulj^e of luobaio. I Ciill your attoiiLion to Kxhi]>it 11
and ask you to Ht:ite whothei* the llap on lli:it ouvoio|H» does not indicate that
some of the sealing wax was under the tia}) itseltv — A. Ves» sir; it does.
Q. So there was that much siKice to hold that flap down and make it stick
to the main part of the enveh;pe, is that rij;ht? — A. Yes, sir.
Q. In addition to that there was a conciidernble quantity of sealing wax put
over the flap on that particular exhibit? — A. Yos, sir.
Q. I call your attention to Exhibit 32 and ask you if there is not a con-
siderable sealing wax smeared under the tlap of that, holding it down and
sticking it to the main part of the envelope V — A. Yes. sir; clear across.
Q. In addition to that the sealing wax was put right over the tiap ou to
the envelope or seam of that exhibit? — A. Yes, sir.
. Q. Take Exhibit 10; there is some sealing wax also under the flap itself,
isn't there? — A. Yes, sir.
Q. There is some sealing wax under the flap on Exhibit 7, isii*t there, under
the bottom edge of the flap itself? — A. Yes, sir.
Q. There is some sealing wax under the flap itstlf on Exhibit 8, isn't there? —
A. Yes. sir; a little.
Q. Now, you have had some experience with sealing wax? — A. Yes, sir.
Q. You know that the express companies use sealing wax a great deal in
sealing packages that they transmit in business, don't youV — A. 1 believe tliey do.
Q. Now, from an examination of that sealing wax conipareil with what you
have Steu ou packages going through the huge express companies, what do
you f-ay as to how that sealing wax compares?
Mr. Maynard. We object to that as iuconipet.Mit a nil linni;it.erij«l.
Q. If you can tell from an examination of it? In (»ther words, the stniliug
wax is more or less brittle that you have had anything Lo do witii? — A. Yes, sir.
Q. 'iliis Exhibit S) has two seals over the 11;. p, hasn't it? — A. Yes, sir.
Q. I iKin which the stamp was in.^eited l>efoie ilie wax coohsl? -A. Yes. sir.
Q. Kxhibit 12 has four seals over the tl:ii>, hasn't it, connei'tlng it with the
main part of the envelope? — A. Yes, sir.
Q. Exhibit 11 has three, has it not?— A. Yes, sir.
Q. I'^xlilbit 8 has three such seals? — A. Yes, sir.
Q. Exhibit 7 has live s(»aling-wax si^iis. has it iiot?--A. Yes, sir.
Q. I show you Exhibit 10. There Las l)i.'eii three seils of ^*^lii^g wax over
the flap fastening It down to the main part of the enveloiH'?— A. Yes, sir.
(Whereupon the hearing wns adjourned until Wednesday 0 o'elock a. m.,
February 10, 1013, at the supervisor's room in tin* (.oiu'thouse in the city of
Charlotte, Eaton (Vmnty, Mich.)
Wkdnkshay, Frbniarjf 19, ItU:i — .9 a. m.
JOHN TALMEU, being duly swoni to testify to the truth, the whole truth,
and nothing but the truth, testified on behalf of the (?ontestant as follows :
Direct examination by Mr. Adams :
Q. Mr. Palmer, where do you reside*? — A. In Sunfield Township.
Q. Eaton County? — A. Yes, sir.
Q. You have lived there how long? — A. I have live«l there about 23 years.
Q. What is your age? — A. I am (W.
Q. What business are you engaged in? — A. 1 am a shipper of grain and
produce.
Q. Were you a member of the elet-tion board that acted In Suntield on the
5th day of November, 1012. at the general election? — A. Yes, air.
Q. I show you a statement book nnirked "Exhibit 3." Y'ou may examine the
certificate to that book and tell me whether it is your signature there opiwsite
the name '* Inspectors of election." You acted in that capacity at that election
at that place, did you? — A, Yes, sir.
Q. What time on that day did the election board organize? — A. At 7 o'clock
in the morning.
Q. Were you there at the time of that organization? — A. Yes, sir.
Q. Was Frank II. Bacon a justice of the peace in that township at that
time? — A. He was.
Q. Who was at that time supervisor of that township?— A. I was.
Q. Was there any other justice of the peace in that township besides Frank
H. Bacon that you know of? — A. There was a man named Hager.
CABNSY VS. SMITH. 67
Q. Dennis A. Hager?— A. Yes, sir.
Q- Who was the clerk of that township on the 5th day of November, 1912? —
A. Harry H. Ma[jes.
W. Did Harry H. Mapes act as a member of the election board on that day? —
A. Yes, sir.
Q. In what caimcity?— A. He acted as one of the clerks part of the time.
g. Ill what capacity, if you know, did Frank H. Bacon act on that day at
that e:e<*tlonV — A. Mr. Bacon marked the initials on the corner of the ballots
ami lie helped count.
g. Was there any oath administered to Frank H. Bacon before he assumed
to aet on tliat election board on that day? — A. Yes, sir.
g. Who administered the oath to himV — A. We were all sworn in together.
g. He couldn't very well swear himself, could he? He didn't, did he, or did
hev Before answering that question let me show you Exhibit 13, which I have
had marked for the purpose* of Identification. This is entitled on the outside
of it, " Poll book of the general election held Tuesday, the 5th day of Novem-
ber. V.nil. in the village luiU in the township of Sunfield, county of Eaton." Do
you liiKl on there any certificate of any oath having been administered to Frank
H. Bacon?
Mr. Maynakd. We object to that as incompetent and immaterial.
A. It is not here.
g. No such certificate is on there, is there? — A. No, sir.
g. As a matter of fact, Frank H. Bacon w«s not sworn; there was not ad-
ministered tu him tlio oi. Ill ret}uireil by the laws of the State of .Michigan to be
adiiiinistoreil to an ins; orior of an eJertion.
-Mr. MayiNakd. We (!l».i<'(t to iJiaL j:s iin<iniiK'tent and immaterial; no def(K!t
is mentioned in the contest there.
Mr. Ajjams. We will '^i-i it m if it is not.
Mr. Fki i.ow.s. 'ih.ii is m't'i>s>aiy, and liu- rrui(>^ have so held.
Mr. AoAMs. We will f;ive yon notice now tiiat. :iny now fads that (U'vHoi) In
the t: kiW'fX of tliis tesiiuioiiy or Jiny otlicr if^ . iniopv on bolialf of tlie cnnh'stant
thai we siiail apply i'or in ^'intMulnioul [•■> w-v jjotilion; and you can therefore
jirenare yourMilxrs tu meet Lho facts iin>' iI'mI ili:t nmy nut be set forth in
tlie petition.
Mr. Maynakd. We will obje.-t to the takiiiix of testimony upon niattors that
are onlsi«lo entiifly (jf the m-tii'e of con.ol.
g. As a n. a tier of f-^ct. no ualli wms :,.'iii.iiisif'r(>(i to Frank IL Itacon ])cfore
Mr. l*;:con lieK-'H to iwl (u that, ole/iioii ho nl on iliat election day; isn't that
so, { » your best rccollHci imi v A, I (lout re'iM-mber.
i}. You don't reni.'n'ber of Miy oMln li -in;^ administered to him? Who
atlnii'iistered the <»at!i to the rjther niei!5i)ers of the board; didn't lie, being a
jn<i;ie iff the i)eace".' A. '^ es. sir.
g. I.< it yoiir re'oile .tiiiii ik-w that no o.uli was MdininiKterod to Frank H.
Ti; i-on ht'foH> .Mr. Hjic.m l)e;.c.in to :.<'t oii ibal boar*! on tliat (fayV Wiiiit say
yell'. A. I couldn't s:iy.
Mr. Adams. I desire and do offer in evidence from Exhibit 13 the followiugr,
under the beading on this exhibit, which heading is ** Oaths to insi>ector8 of
election " :
" State of Michigan, County of Eaton, sa:
"I do solen?nly sweT that I will support the Constitution of the United
States and tlie constitution of this State, and that I will faithfully discharge
the duties of the office of iusi)ector of this election, held on Tuesday, the 5th
day of November, 1912, according to the best of my ability.
"J. H. Palmeb.
"Taken, subscribed, and sworn to before me this 5th day of November, 1912.
*• Frank H. Bacon, Justice of the Peace.''
" State of Michigan, County of Eaton, 88:
" I do solemnly swear that I will support the Constitution of the TInitetl
States and the constitution of this State, and that I will faithfully discharge
the duties of the office of inspector of this election, held on Tuesday, the 5th
day of November, 1912, according to the best of my ability.
" Dennis A. IIageb.
"Taken, subscribed, and sworn to before me this 5th day of November, 1912
Fbank H. Bacon, Justice of the Peaces
it
68 CABNEY VS. SMITH.
it
State of Michigan, County of Eaton, 88:
I do solemnly swear that I will support the Constitution of the Fnfted
States and the constitution of this State, and that I will faithfully discharge
the duties of the office of inspector of this election, held on Tuesday, the 5th
day of November, A. D. 1912, according to the best of my ability.
"(No signature.)
"Taken, subscribed, and sworn to before me this 5th day of November, 1912.
" Frank H. Bacon, Justice of the Peace."'
** State of Michigan, County of Eaton, 88:
" I do solemnly swear that I will slupport the Constitution of the United
States and the constitution of this State and that I will faithfully discharge
the duties of the office of insi)ector of this election, held on Tuesday, the 5th
day of November, 1912, acocrding to the best of my ability.
"Fbank H. Bacon.
" Taken, subscribed, and sworn to before me this 5th day of November, 1912."
Mr. Adams. There is no signature showing that anybody swore Mr. Bacon.
Under the head of " Oaths to clerks of election " the following appears :
'* State of Michigan, County of Eaton, 88:
" I do solemnly swear that I will support the Constitution of the United
States and the constitution of this State, and that I will faithfully discharge
the duties of the office of clerk of this election, held on Tuesday, the 5th day
of November, 1912, according to the best of my ability.
"H. H. Mates.
" Taken, subscribed, and sworn to before me this 5th day of November, 1912.
" Frank H. Bacon, Justice of the Peace.**
tt
41
if
(I
State of Michigan, County of Eaton, 88:
I do solemnly swear that I will support the Constitution of the United
States and the constitution of this State, and that I will faithfully discharge
the duties of the office of clerk of this election, held on Tuesday, the 5th day of
November, 1912, according to the best of my ability.
"D. W. Knapp.
" Taken, subscribed, and sworn to before me this 5th day of November, 1912.
" Frank H. Bacon, Justice of the Peace/*
Mr. Adams. Under the head of " Oaths to gatekeepers at election," the fol-
lowing appears:
State of Michigan, County of Eaton, ss:
I do solemnly swear that I will support the Constitution of the United
States and the constitution of this State, and that I will faithfully discharge
the duties of the office of gatekeei)er of this election, held on Tuesday, the 5th
day of November, A. D. 191 — , according to the best of my ability.
" Charlie Gilbert.
" Taken, subscribed, and sworn to before me this 5th day of November, 1912.
" Frank H. Bacon, Justice of the Peace.**
" State of Michigan, County of Eaton, ss:
"I do solemnly swear that I will support the Constitution of the United
States and the constitution of this State, and that I will faithfully discharge
the duties of the office of gatekeeper of this election, held on Tuesday, the 5th
day of November, 1912. according to the best of my ability.
"Z. D. Slater.
" Taken, subscribed, and sworn to before me this 5th day of November, 1912.
" Frank H. Bacon, Justice of the Peace"
Mr. Adams. Under the head of " Oaths to at election," appears the
following :
** State of Michigan, County of Eaton, ss:
" I do solemnly swear that I will support the Constitution of the United
States and the constitution of this State, and that I will faithfully discharge
CABKET VS. SMITH. 69
the duties of the office of instructor of this election, held on Tuesday, the 5th
day of November, 1912.
"Albert Sateb.
** Taken, subscribed, and sworn to before me this 5th day of November, 1912.
** Frank IL Bacon, Justice of the Peace.*'
Mr. Adams. At the conclusion of this instrument, Exhibit 13, is the following;
*<
Certificate of inspection.
" State of Michigan, County of Eaton, ss:
*• We do hereby certify that the foreKolnj? poll list las been carefully com-
pared by us with the duplicate poll list as required by law, and all mistakes
found in said poll list have been duly corrected by us, and that said poll lists
are now correct and agree with each other.
" In witness whereof we have set our hands at Sunfleld this 5th day of No-
vember, 1912.
** J. Palmer,
" Frank H. Bacon,
" Dennis A. Hageb,
"Inspectors of Election held on Tuesday, the 5th day of Novemher, 1912.'*
Q. You were at that election as an inspector and remained on that day how
long, Mr. Palmer? — A. I stayed there until about 12 o'clock at night.
Q. You were there from the time the polls opened until 12 o'clock at night
continuously? — A. No, sir; there were times I stepped out; it seemed we had
one man to spare
Q. (Interrupting.) What do you mean by that? — A. Well, there was nothing
for Mr. Hager to do when I was taking the tickets and putting them in the box,
so when I wanted to step out for any reason he would take the tickets and re-
lieve me, and if he wanted to step out I would take the tickets and put them
in the box and relieve him.
Q. So one inspector handed out the tickets? — ^A. Mr. Bacon, the justice of
peace, marked the corner of the ballots and handed them to Mr. Sayer and
he was in front of the booth passing those tickets out to the voters, and ns the
voters came through the booth I took the tickets from them and deposited them
in the box.
Q. Mr. Sayer was the instructor? — A. Yes, sir.
Q. So that you had three inspectors at that election and an instructor be-
sides the clerk? — A. Yes, sir ; we had two clerks.
Q. Who did you say was the clerk of that township at that time? — A. H. H.
Mapes.
Q. So Mr. Ma lies did not act as in8i)ector, he was a clerk there to that elec-
tion board? — A. Yes. sir.
Q. Well, now. as I understand It, you acted as an inspector and Dennis A.
Hager acted as an inspector? — ^A. Yes, sir.
Q. And Frank H. Bacon acted as an inspector. Did anybody else act as an
inspector? — A. I don't think so.
Q. So you had then three inspectors who acted — three men who acted as
inspectors, I wiil put it?— A. Mr. Bacon handed them out to Mr. Sayer.
Q. Mr. Sayer was not an ins|>ector. but an instructor? — A. Yes, sir.
Q. He was sworn in as an instructor? — A. Yes, sir.
Q. And yet he handled the ballots? — A. Yes, sir.
Q. What did Albert Sayer do there with those ballots, just explain that?— A.
He would take 25 at a time from Justice Bacon and go out in front of the
booth where the voters entered in the gate, between the front gate and the
booth, and he would pass the tickets.
Q. Then the voter would go into the booth perhaps and mark his ballot? —
A. Yes si r.
Q. And then what was done with the ballot?— A. The voter would enter into
the booth on Mr. Sayer's side of the booth and would come out on our side,
and I would take tiie ballot and dei>osit it in the box.
Q. How many lM.<»ths did you liave thore that day?— A. Four or five.
Q. Mr. Sayer, then, in i)assing the ballots to the voters was not in sight of
the other members of the board, was he? — ^A. No.
Q. Ill other words, the booths were between Mr. Sayer, when he handed
those ballots to the voters, between those voters and yourself and Mr. Bacon? —
A. Yes, sir.
70 OABNBY VS. SMITH.
Q. AtkI those booths wore fo hiph and so long thnt a view of yourself anci
Mr. r.si'oii \v:is cut off from Mr. Sayof wht'ii Mr. Saun* j)as.s(,'d those ballots to
the votoisV
Mr. MWiNAiii). I objoct to th:tt as loadirip:,
Q. Is tliat Irnc or not V — A. Yes. sir; Ibnt is triio.
Q. Wrll, wlion you wpiit out a I any tiiiu' or liuics that day, when yon did
leave ilu* votiii;? jjlaco, who look your nhice? — A. Mr. Ilaj^er.
Q. Wluv.i you wore Ihoro what tlid Mr. Haj^'cr doV — A. Well. Mr. Ila^er part
of tho tinx' would slop out on iho ^tro.'t, and jmrt of the time he would sit
around and talk.
Q. Wlieu you were perform ini: the duties you say you i)erformed, Mr. liaooii
also boinjj tliero, Mr. Ilagor didn't do anythinjr, did lioV- A. No, sii'.
Q. Wiis Mr. Sayor, when ho pas.^cii om ili(>;^(^ ])alln..s lo th(^ voters, within or
without tho railing;? — A. lie was widilu tho railiui;.
Q. Did tlie oloction that day adjourn at noonV -A. Well, they adjourned one
hour for dinner .
Q. AVhat. if any, announconu'nt- ])uhru' announciMuout - was made there of
tlie adjoununentV — ^A. It was aunouucod that we adjourned one hour for
dinner.
Q. When tluil adjouriunont was tak«»n wliat was done with the boxes that
were usod there In the oloction by the IjoardV — A. We loft Mr. Slater there
while the rest went to diuner.
Q. Were the books loft there in his custody?— A. I couldn't toll you; I don't
know what tho olorks did with tho Ix oks.
Q. Did the clerks leave for diuu'^r at the time tho bonrd did?- -A. Yes, sir,
Q. Was the room in which this election was hold hacked when you detmrted
for your noon dinner? Or was tho door loft oi)on so i(ej>ple could go inV — A. I
don't think it was looked, bu- Mr. Slater was lookliij? aft(»r thinjjs.
Q. The unvoted ballots — wJon yon loft for your no(»n recess what was done
with those': -A. I couldn't toll you: I don't ronirmbor.
Q. Was there anyone ehe in tho rooui when the board and the clerks loft
besides Mr. Slater';'— A. I don't think there was anyone else inside of tlie
railing.
Q. Were there any others in the room besides Mr. Slater? — A. I couldn't tell
you; they kept their fire api)aratus in the room. There was a whole lot of
room outside of the railing; some one mijjht have been standing there.
Q. It was held in the fire house? — A. Yes, sir.
Q. What time did the election board res^ume oi>erations? -A. At 1 o'clock.
Q. When you resumed, after your noon hh'css, state whether any public
announcement was made that the polls were again open. — A. I tliink so; yea,
sir.
Q. Who made that announcement ? -A.* I don't remember.
Q. Did you after that noon recess act in the same eapacity as you did before
the recess? — A. Yes, sir.
Q. How about Mr. Sayer? — ^A. The same.
Q. And Mr. Hager and Mr. Bacon the Sfime and the clerks the same? — A. Yes,
sir.
Q. Was there any change in the board or clerks or gatekeeiwrs after the
noon recess, that you recall? I moan prior to 12 o'clock that night. — A. Mr.
Mapes started out and his ffithor-in-Jaw took his plaee.
Q. Did Mr. Mapes go out during the time the olei'tion was being conducted? —
A. Yes, sir.
Q. Who was his father-in-lnw? — .\. .Tool H. Rera.
Q. What was Mr. liera's business at that time: I mean his general busi-
ness?— A. He was postmaster at Sunfleid.
Q. He was the father-in-law of H. H. Mapes? — A. Yes, sir.
Q. Wlien did he first begin to act there in connection with the election on
that day? — A. I couldn't say as to the hour; I was out at times.
Q. Any in the forenoon before the recess adjouriiniont?- -A. No.
Q. Was he there in the afternoon of thnt day before 5 o'clock? — A. I don't
remember tlie hours, but I retnember that he was there for some time.
Q. In the afternoon before 5 o'clock? — A. No; it was in the evening; I am
not positive to the hour he was there.
Q. Are you positive about him being there in the afternoon before 5 o'clock? —
A. I couldn't say what hour he was there.
Q. Wlien did you begin to count the ballots? — A. After 5 o'clock.
GABHEY VS. SMITH. 71
Q. Now. with reference to the time yon commenced counting the ballots, state
\vl)-rhf»r Mr. Hern took Mr. Marc^'^ plnce before the counting commenced? — A.
He r«H«k his place after the coimting commenced.
0. Whjit did Mr. Hern do afer he took Mr. Mapes's place? — A. He tallied, 1
rJiink.
Q. Did he handle the baliots? — A. No, sir; he marked them down ns they
were called off.
Q. Waff there any oath administerwl to Mr. Rera that day during that etec-
tlon at any time while you were there? — A. Xo. sir; but he said It was not
necessary.
Q- I>o you know what Mr. Rera's politics were at that time? — A, No, pit;
that is quite a broad question. I have had in my own mind what his politics
weve for a good niMny years; I presume he was a Republican.
Q. How long had Mr. Rera been postmaster there at Sunfleld? — A. About 16
years.
Q. Continuously? — ^A. Yes, sir.
Q, No interruption? — A. Not in the least.
(}. State whether Mr. Rera did anything else that you saw there that day
except to keep tally? — ^A. I couldn't say that he did; he was inside of the
booth there with the rest of them.
Q. Refore Mr. Rera performed any duty there in connection with the eTec-
tion. state whether or not Mr. Rera was in where the Inspectors were, where
the ix)ll8 were? — A. He was in and out whenever he wanted to during the dtoy
and evening.
Q. Refore counting tli«* i»Mllots b'wl lie bfHMi in there where the boMrd was
performing its dutiesV — A. I couldnM siy about that.
Q. How many ballot boxes did you have that day? — A. T think we h:id three.
Q. How many did you use? — A. I believe we used all of them.
Q. Were they locked or pealed before the counting commenced? — A. Before
the counting commenced? I don't think so. I think they were locked all the
time, but they were not sealed.
Q. Each one of them, evei*y one of tliem locked or not? — A. T think so.
Q. Who had the keys to the locks? — A. T don't know.
Q. Were there any ballots counted there before 5 o'clock that day? — ^A.
No, sir.
Q. Who, if anyone, besides Mr. Rera -imI b sidfs the iiisi>ectors and the in-
structor. Mr. Mapes and Mr. Knapn, jissisfeil in the counting of the votes that
were cast ivn that day at that placeV -A. After sni>per Mr. Mapes did not
L-ome back, and Mr. Sayre counted in bis place a part of the time, and a part
of the time Mr. Witherall.
Q. Who was Mr. Witherall? — A. He was a citizen there.
Q. Mr. Witherall— was there any oath admiinstered to him there that day
that vou know of? — A. No, sir.
Q. "what did Mr. Witherall do in the way of asaisting; Just explain what
you snw htm do? — A. Keeping the tally.
Q. Did he do anything else but tally?— A. No, sir.
Q. Did any other one or ones assist at any time when you were present?— A*
Xo. sir: n^t th?'t I remember of.
Q, Did Mr. Rera act In the cai)jjcity of an ins])ector on tliat day at that etec-
tion at any time when you were prescMit? — A. I don't think so; he just marked
down and keT)t the tally.
Q. Do you know whether Joel H. Rera had been acting in any way In the
interest of .Icdm M. C. Smith, the Republican candidate for Representative in
Oongresf? at that election, prior to the eU^cton day, at Sunfleld?- A. Prior to
tliat day?— A. Prior to that day?
0. Yes, s'r. — A. After Mr. Snnth wj'S nominated be was a Smith man.
Q. At 5 o'clock in the afternoon of the r>th of November at that voMuj^
place, as I understand y<m, you commenced counting the votes that had been
voted? — A. Yes, sir.
Q. After you began that count at r> o'clock did you leave that voting place
for supper or dinner?— A. The othcu- members of the board had their suppers
sent to them. It seems we had one extra nuin there most of the time, 80 I
stepi)ed home for my snpjier and the rest of them stayed there.
Q. What time did you get back? — A. T got back about 7 o'clock.
Q. They went on with the ccunt at that time while you were at supi>or?—
A. Yes, sir.
72 CARNEY VS. SMITH.
Q. After you got back did any other member of the board leave before 12
o'clock at night? — A. The township clerk was away some of the time.
Q. When tlie township clerk was absent who, If anybody, acted In his
place? — A. Air. Siiyre and Mr. Witherall and Joel H. Bera acted in his place
when he was not there.
Q. After you returned there about 7 o'clock that evening, you stiiyed there
how long? — A. I stiiyed most of the time until midnight
Q. Were you gone away from the voting place? — A. I was outside a few
minutes. A friend of mine was kilUnl with the cars, and I ste]>ped out to see.
Q. At 12 o'clock that night what was done with reference to the counting of
the votes in that precinct? — A. Mr. Mapes made a motion that \^e adjourn un-
til the next morning and finish the count the next morning, and the motion
carried.
Q. Did he make a motion to any hour to which the adjournment was to
be taken?— A. I think 8 o'clock.
Q. You say the motion was carried? — A. Yes, sir.
Q. Did or did not the board then adjourn? — A. Yes, sir.
Q. What was done with the election books used at that election — the iK)ll
books and tally sheets and statement book? — A. I think they were left there
until morning.
Q. Where were they left? — A. I think they were left there.
Q. I mean how were they left — on the table? — ^A. I couldn't tell just how
they were left.
Q. What was done with the ballots that hnd been voted? — A. They were
left there.
Q. Where were they left? Describe the place and the manner of leaving theiu
that night when the board went away? — A. I couldn't tell you about that
Q. Did you stay there until the other members of tliH boanl left? — A. I think
when we adjourneil I went out and left the clerks there.
Q. State whether, from your knowledge, the books used in that election and
(he ballots that had been voted at that election were locked up in the ballot
boxes or anything else in the wny of a receptacle for them or not? — A. I couldn't
tell what they did do with them.
Q. Do you know whether the votes that had been cast there were locked up
when you took that adjournment at 12 o'clock that night? Placed under seal
or not? — ^A. The clerks were there looking after that; I didn't give it any at-
tention.
. Q. So you don't know? — A. No, sir.
Q. When did you return to the voting place agnin to continue your duties as
kn in8i)octor of that election? — A. I went home at 12 o'clock and went to bed.
Q. When did you come back? — A. I came back at 5 o'lrhx.'k in the morning.
Q. On the morning of November (5, 1012? — A. Yes, sir.
Q. Did you go back to this place where the election had been held the day
before? — A. Yes, sir.
' Q. Was there anybody there at that time? — A. Y'es, sir.
0. Who? — A. Mr. Bacon was there.
Q. Frank H. Bacon? — A. Yes, sir.
Q. Anyone else?— A. Mr. Knai>p and Hager; T am not sure whether Mr.
Mapes was there, or Mr. Bera ; one of them was there.
Q. What were they doing when you arrived at 5 o'clock in the morning? —
A. Counting the votes.
Q. Did you, from the time you got there at 5 In the morning, assist in the
counting of the remainder of the votes? — A. Yes, sir; I told Mr. Bacon I would
take his place If he wished to go home; he was tired, so he went home.
Q. What time did you conclude the counting? — A. About 6 o'clock.
Q. Did you look over the biillots that had been counted in your absence, and
count them? — A. No, sir.
Q. Did you ever do that before you made and signed the return, certifying the
election that you returned to the county clerk of Eaton County?
Mr. Maynard. We object to that as incompetent and Immaterial.
A. No, Kir.
Q. Did you, at any time before you signed the statement book — the certificate
bage in the statement book — that was addressed to the board of county can-
vassers in the care of the probate judge, or the register of probate of Eaton
Comity?
Mr. Maynard. The same objection.
A. No, sir. ^ i
CARNEY VS. SMITH. 73
Q. When vour board got through on the 6th of November. 1912. with this
<?ount. did you at once mnlce that certificate In the statement book which I have
referred to. or was it later done?— A. It was done later.
Q. When you got through counting at 6 o*clock, on the morning of November
« 1912, did your board resolve to adjourn until some other time?— A. We went
home to breakfast and met at Mr. Bacon's office and signed the returns later.
Q. Did you pass any resolution before leaving, after completing the count, to
adjourn? — A. Nothing of record, only some one snid we would go to breakfast
and come back to Mr. Bacon's office about 9 o'clock and sign up the returns.
Q. That is Frank H. Bacon you are talking about? — ^A. Yes, sir.
Q. His office?— A. Yes, sir. ^ ^ ^
Q. Where was his office with reference to the place the election had been
held on November 5?— A. About a block and a half.
Q. Did you meet on the 6th at Mr. Bacon's office?— A. Yes, sir.
Q. Who was present?— A. All the board; all the election committee— the elec-
tion Inspectors. , ^ . ^
Q. What election records or books did you have at Mr. Bacon s office at that
meeting? — ^A. I think we had all of them.
Q. How did they get over to Mr. Bacon's office?— A. The clerks carried them
over there.
Q. When you finished countmg at 6 o'clock on the morning of the 6th of
November, 1912, what was done at the time of your adjournment with the tally
book, the poll book, statement book, nud the bnllots that you had counted?—
A. The clerks took the tally books with them. I think they took the votes that
we counted and rolled them up and tied a string around them and put them back
in the ballot boxes.
Q. After so putting the ballots back, state whether the ballot boxes were
locked or not locked?— A. I couldn't tell you.
Q. State whether after these ballots were put back in the ballot boxes after
this count was completed, the ballot box or boxes In which those ballots were
placed were in any way sealed?— A. I left that to the clerk. I don't know
whether he sealed them or not.
Mr. Adams. I offer in evidence the certificate atttached to the statement book
of the general election held November 5, 1912, in Sunfield Township, marked
" Exhibit 3," as follows :
" CERTIFICATE.
"State of Michigan, County of Eaton, sff:
" We do hereby certify that the foregoing Is a correct statement of the votes
given in the township of Sunfield. county of Eaton, State of Michigan, at the
general election held on Tuesday, the 5th day of November. 1912.
" In witness w-bereof we hereunto set our hands at the township of Sunfield,
said county and State, this 5th day of November, 1912
" J. H. Palmer.
" Frank H. Bacon.
" Dennis A. Hager.
" Inspectors of Election.''
Q. Was that certificate in fact made on the 5th day of November, 1912, or on
the 6th day of November, 1912?
Mr. Maynabd. That is oh jetted to as Immaterial; there Is nothing in the law
requiring it to be made on the day of election.
A. It was made on the Oth.
Q. About what time on the 6th of November did you make that certificate or
sign it? — A. At 9 o'clock in the morning.
Q. You signed it at Mr. Bacon's place of business? — \. Yes, sir.
Q. That was not the place where the election had been held? — A. No, sir.
Q. It w:is about a block away from where the election had been held? —
A. Yes, sir.
Q. 1 notice in the certificate the Inspectors attached to Exhibit 13 It recites
and shows that the certificate was made on the 5th day of November. 1912.
State whether that certificate was made on the 5th day of November, 1912, or
not — X. It was nuide on the <ith.
Q. What time on the 6th day of November, 1912, was that certificate signed
by you? — ^A. About 9 o'clock.
Q. Where did you sign it ? — ^A. In Mr. Bacon's office.
74 CARKBY VS. SMITH.
Q. Fnnik H. R^ooii? — A. Yefi, sir.
Q. Did tiio niluT infspootors si^n ihnt CQvt\i]c to v.t tlio snnu» fii'.ie, or
ai)pn>xiii.iM"ly II. c s.-ine time, find at the Kjune placo y<ni silciuhI itV- A. Yes, sir.
Q. Did I lit' oilijT i]]^pe<tor.s of t)iat olocticm sij;n tho (M»rlMi«': t»\ !• vl.ibil. .^, at
the Feline time, «n- ;inj»n)xiin stoly the sjuiie time, yon diii? A. \o^, sir.
Q. Who ttllcMl in tliose certificates, so far :;s the smi.e nre tilled in witli ink,
if you know? — A. Mr. Knapf).
Q. When you made th^t certificate there were n niinduM- of tht^ votps that
were cast at that election thPt j'ou hadn't iookeil over at nil; i'^n't tl'nt so?
Mr. ^rAYNAKi). We ohje*^'t to tlnit as innnaterial; lie (mm'i stnliify his own
written return in this wj»y.
Mr. Fkliows. I don't snpp(>se the law conteniplates tl:;il owvy irsieclor shall
80e every h?ill<)t.
A. I did not see all of them.
Q. Do you know how many ballots were counted v\ the time yon rctirod at
12 o'clock on the nijrht of November 5, up to thit tin](»? —A. I ])ro^'ime about
half.
Q. W^hen you pot h-ck rt 5 o'clock the next mornlnj;. how manv were there
left to count?— A. From 15 to 25.
Q. I sliow you Exhibit 13. State how many btllots (I ere were on<\ at that
election that day. on November 5, 1912. — A. Ti)ere wore ^,10.
Q. ApT)roximately, then, at least 1(50 ballots th t hd been voteH at that
election on November 5. 11)12, were counted at a time or t n os wbrn you were
not present? — A. Yes, sir.
Q. And when you made your certificate attnfbei to th'' exbib't< wldo^ hnve
been rend wbile you hnve been testifyine:, {:l>oiii ICO of tlio ballots th>t were
voted at that election hj)d not been examined or ooimhMl by ynn. Is that cor-
rer-t?— A. I was asleep when they counted them.
Q. You didn't count them at any time before making that cortific:Ue?--A.
No. sir.
Q. After you pot there at 5 o'clock, you stated that Mr, Haj;er left there. — A.
Mr. Ihicon.
Q. And you finishe<l the count in his alxsence? -.\. Yes, sir.
Q. Do you know whether he counted the bnliots that had been voted at that
election that were counted by you and the others after Mr. Hacon left on the
morninp of the ()th, before these certificates and tht^e returns were signed by
Mr. Bacon? — A. I don't know.
Q. At any time while that count was poinp on when you were there, do you
know whether Dennis A. Hager, one of the insi>ectors of that election, was
absent any? — A. I couldn't say.
Q. W'ere the ballot boxes that were used at the election of November 5» 1012,
as far as you know, in the oflSce of Mr. Hacon on the morning of November 6,
1912, when you signed these certificates?
Mr. Maynard. We object to that as Immaterial.
A. No; they were not there.
Q. Where were the statement books, or where was the statement book, as the
case may have l)een. fille<l in with the writing that is in it? -A. Mr. Knapp may
have filled them in r't liis own home, or at Mr. l?aoon's otfice before I arrived
there. They were all filled in when they telephoned me to come over to the
office and sign up tbe returns. They were all rendy when 1 got there.
Q. Were they filled in before your board ;.djourned at 6 o'olo<k on tiie morn-
ing of the 0th V— A. No. sir.
Q. Was tJie poll book, save the certlficnte of the inspe( tors at the time that
you adjourned on tlie morning of November 6, 1912, at tlie place where the
election was held on the Hth*^ — A. The ik)1I books?
Q. Yes; that is, fil'el in with the writing that is in them aside from the list
of voters? — A. The list of voters was filled in.
Q. I say aside from that. — ^A. I don't think so.
(). Did you sign m(»re than one poll book at the office of Mr. Hacon on the
morninir of the tith of Noveml>er, 1912? Sign a certificate for more than one
book? A. I couLiu't tell unless I saw them.
(Hook handed witness.)
WiTNFSs. That is my signature.
Q. Did you Fign a like certificate ou any poll book, such as Exhibit 13, prior
to and including the time you took that adjournment, about 6 o'clock, November
6? — A. No; I didn't sign any previous to that.
CABNEY VS. SMITH. 75
Q. When you ^(.( owv to ^Ir. Hnr^on's ofTico (li<l yuii or not .si;;n tho cprtificatos
to two |'«»11 Im <)ks of tlie ('Uvli(.n held in Snrith'ld on Novcinhcr o. l!»r2V--A. I
siijni* I ev*Tytiilnir in Mr. U;o*on*t5 otliro. I (ii'l:''i s";^'! it anywlKTO ^^^^, Won*
thiTo two signed V
<J. I «]mtf kn'>\v: t^HTo f>n^iit to bo. A. Y(»u r.in tisi if you Jj;i\e your hook
whelh»^i* I si;^iitHl it or nut.
(Yopp-oxniiiinntion hy Mr. Frankhai'sfr :
(}. Ydii I:r.(l hoi'u oUu-tuin insi'.octor at a .C(U>J many jjrovions ele.'tionsV — A.
Yes. ^ir.
Q. Voii 'Avr sni'.orvV'.r of tlio tnwns'hip of S.'n(i;»l(I and liavo h^'ou for some
time' --A. Yes. s'r.
(J. Yi.'iir t*»\vnslMp is ixinnall.v (juilo s(r«.iiji'y UopnJ.I-ran V
Mr. Ai)A.\Js. I nbjoci to thai as irrol('\a:;t aJid iinmatcrial aiid Iro inilofiuite.
.A. T( Is coiisiiTored so.
Q, I-'\oi at tho last ohnrtion it wont U<*piihlioan V
>fr. Ai'AM.s. We oh.j*ft to that as irrolo\;,ii{ and iniinatoria) anil not tin' lu'St
evid(^iH*e.
A. I thinl\ tlie report shows it went Ilepuhlicui.
Q. Do you renieinl)er how irany votes Mr. Cano'v nneiv(Kl tliere?
Mr. Adams. We objeut to that as irrelevant ; tul .i.nnateiial and u-a the l)est
evidence.
A. I do r<»t : iin, sir.
Q. Now. as a nuMn.io!- of that hi-ard- yon have l).'e:i eleettnl siii)ervisor on the
I)pni<K-raii(* ti«'l<ot in tliat t^iwnsliif)? A, Yes, sir,
Q. Fveiy time fnr a !Mind>er of y(»jrs?--A. Y(»s, sir.
Q. N4»w, this in SI eel or. >'r. racon, was a 1) ■mocrat''' A. YVs, sir.
Q. IIo diod very s.jon afier tl:e ehx'tion V — A. Ves, sir.
Q. The fa<-t was he was In latlnT pt-or hrallh ai-tlal timoV A. V<»s. sir.
Q. That is why you proiio>el he shnulii ^o hcnne ami y<ni wonlvl take his
place? — A. Yes, sir.
Q. Mr. Sayre is he also a Denioerat? A. 1 think so.
Q. And supported the Demoerat lieketV- A. I third< he is a T)em(>orat.
Q. Mr. I?a(!on was a Democrat ami supported the Denuicrat ti;ketV— A. I
don't know how they vot-^Ml.
Q. Just what you know from your oljservation amonj; nienV— .\. ITo was a
Democrat.
Q. A majority of the board of inspectors were Democrats? -A. Ye<?, s'r.
Q. Mr. Mapea — he w;.s what is called a third part> man, a lUiJi M«>os<'r? -A.
I think J?o.
Q. As far as you were concerned, Mr. Palmer, your actions there were In
every rejrard in favor of an honest election? -A. Yes, sir.
Q. I a.sk you whether .Mr. Carney got cretlit for e\ery vote that was cast for
him. as far as you know?
Mr. Adams. I abject to that as irrelevant and Inmiaterial.
A. As far as I know, be did.
Q. And John M. C. Rmith got credit for what was cast for him, as far as
you know? — A. Yes, sir.
Q. As far as you know, there was nothin.c: (K'currwl there that affected the
result of the election for Member of C(»ni?ress?
Mr. Adams. I object to that as incom|)etent, irrelevant, and immaterial.
A. No, sir.
Q. l>id you swear in Mr. Say re because you sup[)osed you had a right to
swear in such an officer?
Mr. Adams. I object to that as irrelevant and immaterial.
A. Yes* sir.
Q. You had done that at previous electi<ms?
Mr. Adams. We object to that as incouH)elent and immaterial.
A. Yes, sir.
Q. And you did it to facilitate and helj) tlie election along; that was your
intent and purpose?
Mr. Adams. We object to that as irrelevant and inunaterial.
A. Yes, sir.
Q. When you adjourned at 12 o'clock — first I will ask you, Mr. &iyre wa»
hi the same room with all of you there? — A. Yes, sir.
Q. The election was all in one room? — ^A. Yes, sir.
76 CARNEY VS, SMITH.
Q. He was in sight there, at least of the clerks, wasn't he; one or more of
them? — ^A. The booths stood between the clerks and Mr. Say re.
Q. Was Mr. Say re in snch a situation that the clerks could not see him, or
any of the inspectors? — ^A. They could not see him.
Q. The clerks could not? — ^A. No, sir.
Q. Nor the inspectors? — ^A. No, sir.
Q. It was all in one room, anyway? — ^A. Yes, sir.
Q. Was it a large size or small size room? — A. It was a large room.
Q. There would be no difficulty in hearing anything that was said by eacb
other in the room there?
Mr. Adams. I object to that as calling for the conclusion of the witness and
incompetent.
A. If they talked loud enough they could hear each other.
Q. Nobody voted there, as far as you know, except legal electors of the town-
ship?— ^A. No, sir.
Q. You know all the voters there, don't you? — ^A. Yes, sir.
Q. You have lived in that township some years? — ^A. Twenty-three years.
Q. When you adjourned at 12 o'clock it was because you gentlemen had got
pretty tired counting votes? — A. Yes, sir.
Q. I will ask you whether this was not a peculiar election; different than
any you had ever taken part in as to the number of split ballots?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial and
calling for the conclusion of the witness.
A. It was about the time we used to have under the old Australian ballot.
Q. Was not this election — ^is it not a matter of common knowledge tliat this
election had more splits and took longer to count than any election we have
had for years?
Mr. Adams. The same objection.
A. More than usual.
Q. Did you ever before adjourn before you completed the count?
Mr. Adams. We object to that as irrelevant and immaterial.
A. I think not.
Q. You adjourned, as you say, at midnight, and the ballots were left there
in thfit voting place, were they — ^you left them with the clerks? — A. Yes. sir.
Q. Was the building locked when you went out, or did you go out first? — ^A. I
think I went out first.
Q. You don't know, then, whether it was loeke<l or not? — A. I do not.
Q. When you liad the noon adjournment one of the clerks was left there in
char^re of the ballot box? — A. Mr. Sayre was left there and one of tiie outside
gatekeeiR»rs.
Q. He was left there while the board went to dinner? — ^A. Yes, sir.
Q. When it came supi)er time, the boys had their su[>i)er sent to them and
you went out and got your supi)er? — A. Yes, sir.
Q. When you got back you found thorn counting? — A. Yes, sir.
Q. You were engaged in counting them before you tpiit at that time, that Is,
bef(»re you went to Bacon's office everything was counted; you got back at 5
o'clock, then the count was completed before leaving the building? — A. Yes, sir.
Q. And i)iit down on the books or the tally? — A. Yes, sir.
Q. Then it wjis suggested that you go to Bacon's office and sign up the
returns? — A. Yes, sir.
Q. But all the votes had been counted at that time? — ^.V. Yes, sir.
Q. They were on the tally sheet. — A. Yes, sir.
Q. The clerks took all the books and statements. Do you know what they
took to Bacon's office? — A. They took all we neeiied at the time.
Q. When you got there everything was there and the people in there ready
to sign? — A. Yes, sir.
Q. Now, then, before midnight you took a chair and went ofl in one corner
and went asleep? You said you did go to sleep, didn't you? — A. No, sir.
Q. You didn't do that? — A. No, sir.
Q. You went olT and sat down and quit counting and sjiid there was no use
of counting and working right along; then you started out, or that in sub-
stance?— A. I didn't make that statement; that is what the postmaster said.
Q. What did you say? — A. Mr. Mai)es made a motion to adjourn at mid-
night, and I said I was willing to adjourn to rest if the rest were; that is what
Bera said, that I went asleep.
Q. I'he question is whether you quit work and went away and sat down in
another imrt of the room? — A. No, sir.
Q. Off in a corner on a bench over there? — A. No, sir.
CARNEY VS. SMITH. 77
Q. You worked right aloDg until they adjourned? — A. We had two meji. I
said that it didn't require Mr. Hager and I both constantly, and Mr. Hager
and I did the work alternately.
Q. What did you do alternately? — A. We deposited ballots in the box during
the day.
Q. I mean as to the counting? — A. Mr. Bacon called off when he took a
ticket — he called off each candidate's vote as he came down through, nnd I
would watch over his shoulder to see whether he called off correctly, and when
I stepped to one side Mr. Hager would do that ; when Mr. Bacon would get tired
I would sit down and call off and Mr. Hager would look over my shoulder.
Q. There were two inspectors examining the count as you went along? — ^A.
Yes. sir.
Q. Where is Mr. Say re? He has gone away. — A. Yes, sir.
Q. Where is he?— A. In Florida.
Q. I>o you know when he is coming back? — A. I expect him back any time
this month.
Q. During the cold weather? When you went to breakfast, at 7 o'clock, the
count had all been completed? — A. Yes, sir.
Q. All you had to do after tliat was to make and sign the returns? — ^A,
Yes, sir.
Q. Which you did about 9 o'clock in Justice Bacon's office? — A. Yes, sir.
Q. After you got through counting, the ballots were tied up with strings
nround them and put back in the ballot boxes? — ^A. That is my recollection of it.
Q. And you left them to the clerks after that? — ^A. I couldn't say as to that.
Q. That was left with the clerks to do? — ^A. Yes sir.
Q. Mr. Say re and Mr. Bera were there to assist in the tally, they didn't
count any ballots? — A. No, sir.
Q. Were you sworn at the beginning, all sworn in together? — ^A. Yes. sir.
Q. Before you signed the oath and t)efore you signed the book there? —
A. We were sworn in before we opened the polls in the morning.
Q. When you started In here, you said you thought Mr. Bacon was not
sworn; what do you think about it? Do you think you were all sworn? — A. I
don't remember about Mr. Bacon; he might have been — I don't remember.
Q. Mr. Bera. the postmaster, was a deputy township clerk at that time? — ^A.
That is what he said.
Q. Do you know whether he was or not? — A. I don't know; I think he was.
Mr. Adams. I move to strike out what he thinks, and also object to it and
move to strike it out for the further reason- that there is better evidence.
Q. Has he acted as deputy clerk to your knowledge? — A. Not to my knowl-
edpe.
Q. Your understanding is that he is deputy township clerk?
Mr. Abams. I object to that as Irrelevant, incompetent, and immaterial.
A. I never heard of his being deputy county clerk or township clerk until
he told me that that day at the polls.
Q. Were duplicate tally sheets kept the whole day? — A. Yes, sir.
Q. By the two clerks? — A. Yes, sir.
Q. The returns were mailed to the county clerk and Judge of probate — dupli-
cate copies? — A. Yes, sir.
Q. Who mailed them, do you know? — ^A. I suppose so •
Q. The question calls for your knowledge.
The Witness. I don't know of my own knowledge.
Q. Who do you understand mailed them?
Mr. Adaks. I object to what his understanding was as incompetent, irrelevant^
and immaterial and hearsay.
Q. What do you know about their being mailed? — A. My understanding was
that one of the clerks mailed them.
Mr. Adams. I move that be stricken out as incompetent, irrelevant, imma-
terial, and hearsay.
Q. Was one of the poll books put in the ballot box wh«i you got through? —
A. I couldn't tell you.
Q. Were the duplicate returns that were made at that time in the office of
Mr. Bacon? — ^A. Yes, sir.
Q. The duplicate tally sheets kept during the day? — A. Yes, sir.
Redirect examination by Mr. Adams:
Q. What was the politics of Mr. Knapp at the time he acted on the board,,
if you know? — ^A. He was a Republican.
Q. E. W. Knapp?— A. Yes, sir.
78 CARl^EY VS, SMITH,
Q. This roiin iu wliirh tho elcM-iioii was lieUl that day was a part of the room
Th;.r \v i< i!>f(l by the lirt' tlviiaiiUHMtV A. Yes, sir.
0. IIuw laij;o was the eiiLiie room iu whieli this election was heltlV — A. I
think about liU by 30.
g, Wiis tiiere ou that day, November 5, 11)12, auy tire apiuiratus iQ there? —
A- Ves. sir.
Q. What V- -A. I think the eiij^ine. the hose wai:on. and hose cjirt.
Q. Your rieetiou board in the conduit of tliat election there occui>ied a part
of that ^eiieial room for the imri)oses of this election?- -A. Yes. sir.
Q. \\as the part that 30U occu[»ied for lioldiuji that tMectiou lliat d.iy iu nxiy
way partitiontHl off from the general room? -A. By a railinj;.
Q. What kind of a railinj:? -A. A wooden railing about ^ feet his;h.
Q. How big was the railing; what was the railing made of; the size of the
material it was made ofV -A. The standards uj) and <lown were about 1 inch
in diameter and the top w^as j)robably 'A inches.
Q. Was there auy way by which the i)art your board occupied for holding
that elfvlion could be lockt^l so that nobtxiy could y^ot in there when the board
was absent? — A. No. sir.
Q. People could, I suppose, go under the railing or step over it, could they
not? — ^A. They could not get under it because there were standards up and
down: they could stei) over it if tliey wanted to, I supimse.
Q. The nienibers of the tire department occupietl that room that day? — ^^V.
They didn't occupy it that day.
Q. AVas there more tlian one door to the room? — A. Two doors, three doors,
four doors.
(^ Four doors tliat entcrt^l that room in w-hlcli this election was held? —
A. Yes. sir.
Q. I5i \nii know whetlicr any one or ones of the eli^/ticni board had the keys
to e cii . : every door that cutcreil that voting place tliat day?--A. I couldn't
tell you.
Q. \\ I t> I you left there .'t ni^^ht. 12 o'clock, took that adjournment, were
there any members of tlie lire (h'partment in the room?- A. Not that I know t»f.
Q. I>id any memi)ers of that tire dei)artment stay iu that room during the
hours of the da^' named? - A. No, sir.
SYLVKSTKll FRANKS, he!])- lirst sworn to testify to the truth, the whole
truth, and nothing but the tnith. te^tiliiMl on behalf of the contestant as follows:
»
Direct examination by Mr. Adams :
Q. Mr. I'ranks. where do yon reside':- -A. I reside in Sunfield.
Q. In the county of l.'ainiiV -A. Yes, .sir.
Q. ^^'ere you residing ihere on the Oth day of November, isn2. election
then? — A. Yes, sir.
Q. Your age is what? — A. I will so(»n be 00, the tJth of Man'h.
Q, DmI yon hold ruy odu^al |'o-;i(ion in the township of Suntield on the 5th
day of Noveml)er, 1012? — A. In regard to the elect i(»n, I did not.
Q. I don't mean that, but were you a township oflicer'/ — A. Yes, sir: I was
marshal.
Q. You were marshal of the village of Sunfleld? — A. Yes, sir.
Q. On that day? — A. Yes, sir.
Q. How long prior to that day were you or had you been serving as town
marshal'.'' — A. It will be thnn* years tlie 1st of April.
Q. Were you performing ycur duties in and around the village on the 5th
day of November, 1012'^— A. Yes. sir.
Q. Were you ab(»ut in the vicinity of the voting place In that village on that
day?- A. Yes, sir.
Q. Did you vote there that day? — A. Y'es, sir.
Q. Were you or not ])erforniing your duties (m the night of the 5th day of
November, 1912, as marshal? — A. Yes, sir: I was.
Q. Did you st?e any of those who you understood to be members of the elec-
tion board around the town of Sunfleld after 12 o'clock, November 5, 1912—12
o'clock at night? — A. Well, now. I couldn't tell you exactly to just the hour,
but it was somewhere about that time that I saw two of them.
Q, Who did you see? — .\. I saw Mr. Ma pes and Mr. Hager.
Q. Where did }'<m see them? — A. They came into the barber shop where we
wore getting the ele<'tion returns.
Q. Whose barber shop was thiit? — A. Thomas & Dunn's.
CA.BNBY VS. SMITH. 79
Q. IIow f;:r from tlie \ih\ce where the olerrtlon was held on the r)th dny of
No^eiiiher. 1012, w s this brluT sJiopV— A. Well, now, I shnnid judge nl><)n*t 25
rodH, mrsybo a little more or a little less than that; I think between 25 and
30 rods.
Q. Were yon in the barber shop? — A. Yes, sir.
Q. Wf*re \(*u in there be^'oro these gentlemen cnme in? — A. Yes, sir.
Q. I ne.'iTi rhnt nierht?— A. Yes, sir.
i^. They were getting the ele tlon retnrns, you sny, at the barber shop?— A.
Yes, sir.
Q. Who dill jon see come in there V — A. Herman Mapes and Mr. Hager.
Q. I>id yon see Mr Knnjtp there? -A. No, sir; I did not.
Q. In tlie barber shoj??- A. No.
Q. St- te wiie'ier yon h-nl s(hmi this same Mr. M-apes and the same Mr.
Hjiger aeting on the eleetion boj.rd there at the voting place in Snntield on the
5th d* y of N«»vember 11)12. — A. I bad, sir.
Q. Did you ha\(» any tnlk with either of these two members of that board
that night in the b.-irber shop?- A. I did not personally, but I was there.
Q. Did you hei'r iheni S4iy anything? — ^A. I heard Mr. Majtes say he had
adjourned.
Mr. Fkliows. I object to that as hearsay.
Q. Wh; t did Mr. Mnpes s:iy? — A. IT^ said they hsid adjourned imtll moriung.
Q. Did y<ju >ay anything (o him? — A. I s{)oke up and snys, " I don*t think
you lave any right to do that.**
Q. Wtiat did be say in reply to whnt you said?
Mr. Fkli ows. We objert to tlnit j^s Imnniterial.
A, I ''Mu'r think 1 o <iu(\ jmyrtiing bsick to what I Jiskod him or to what I said.
Q, Did ynu go to the p'ace where the ele<*tlon hiid been held the 5th day of
No\pn!»er. liH2, after you met Mr. Mapes and Mr. Hager in the barber shop? —
A. I did.
Q. Wlar tin?e did yon get baek to tlie voting place? — A. I think it wns be-
tween 12 and 1. sen^e time.
Q. Wj s tliat bet'oif or ;»l'l«'r yon sjiw Mr. Mapes and Mr. linger in the l>}irber
shop?- -A. Tliat w:«s after.
Q. What was giung on down there to the voting place when you got back
after linving siMMi these men in the b;irl>er shop? — A. They were commencing to
I'oinit !he \'.|«-s ji;^ in.
Q. Who v:is dninz thit?-.\. Mr. Knapp was there and Mr. MaiKis. Mr.
Hager. and Mr. I'aeon.
Q. Any others'; -.\. No. sir: not thnt I remember.
Q. Did you go down from the hnrber shop when they went down— that Is,
when Mr. Mapes .-nd .Mr. Hager went down to the voting place? — A. No, sir.
Q. H<iw long di<I you stny thr^re after y<ni went to that voting ])lace. after
you left thMt barber shop iiiat night? — A. I don't think 1 st.iyed over It) ndnutes.
Q. Did you go b uk to that voting pUice again that night?- -A. No, sir.
Q. Did you go back there the next niorning. on the tUh*.' — A. No, sir; I did not.
Q. Di<I you have a key to the room in which the election was held on the 5th
day of Nox ember. 11)12'/ — A. I have a key to that part.
Q. Did you have a key that day, that night, to that room? — A. I have a key
to that at all times that I carry.
Q. Did you have at that time? — A. Yes, sir.
Q. Tliat election was carried on in the engine room? — A. Yes, sir.
Q. Of the tire department? — ^A. Y'es. sir.
Q. Were there any other keys around anywhere that you know of "i* — A. Yes,
FBr.
Q. Was there one of thefe keys usually kept there? — A. Yes, sir.
Q. Where? — A. It was kept right in a little tin box by the side of the small
door that goes into thnt same part.
Q. So if a fire occurs anybody can go to that little tin box and get tlie key
and o[)en the door and go into this room? — A. Yes, sir.
Q. Was the tin box kept locked?— A. No, sir.
Q. No lock on the tin box? — ^^\. No, sir.
Cross-examination by Mr. Mayn.\rd:
Q- You had a key with you that night? — A, I had the key I always carry
Myself.
Q. You had it that nIght?-A. Yes, sir.
Q. Did you go and unlock the door when no one was there? — A. Not Unit
night, I didn't.
80 GABKEY VS. SMITH.
Q. You didn't let anybody else take your key, did you?— -A. Not the key I had.
Q. You know of no one who used that key to open that door that night? —
A. Not the key I carried, they didn't, because I always have that myself.
Q. When you got back to the engine house, after you left the barber shop, you
say you saw Mr. Knapp and Mr. Mapes; what were they doing?— A, Mr. Knapp
and Mr. Mapes were tallying.
Q. Keeping the tally? — ^A. Yes, sir.
Q. Mr. Hager, one of the inspectors of election, and Mr. Bacon— they were
there counting the ballots?— A. They were there.
Q. That is what they were doing?— A. Yes, sir.
Q. They were engaged in that business when you went In? — ^A. Yes, sir.
Q. How long did you stay there? — ^A. I think I was there about 10 minutes.
Q. They were engaged in that business when you left? — ^A. Yes, sir.
Q. You say you saw Mr. Mapes; what office did he hold?— A. He was one of
the men that tallied.
Q. Was he township clerk? — ^A. I think he is, but I will not be really positive.
Q. And Mr. Hager was on the street? — ^A. I didn't see him on the street;
understand me, I was in the barber shop ; I didn't see them on the street at all.
Q. You don't know where Mr. Bacon and Mr. Knapp were at that time? —
A. T^o si r
Q. Was that after midnight?— A. I think when I saw them I don't think it
was. It was somewhere about 12 o'clock ; I will not be positive about that.
Q. Do you think a little after midnight? — A. I would not say positively.
Q. You don't know? — A. It was somewhere right about that.
Q. They didn't remain in the barber shop long? — ^A. I should judge about half
an hour.
Q. Then they went back? — ^A. They went somewhere.
Q. You saw them back there, didn't you? — ^A. Yes, sir.
Q. Y'ou followed them right up? — A. I didn't follow them right up.
Q. How quickly? — A. I don't know.
Q. Ten minutes? — A. I will not say about that.
Q. You don't know? — A. I don't Just remember how long it was, but I went
over there — me and Charlie Lanquest — to the depot, and there we got the re-
turns on the President and governor.
Q. Then you went hack up there? — A. Yes, sir ; I went down to the town halL
Q. And you found them to work? — A. Yes, sir.
Q. You don't know^ of anyone else opening that place while they were absent,
do you? — A. 1 don't know; they would have to have a key to get in; I didn't
let them in there.
Q. You don't know of anyone gding in there? — ^A. No, sir; I do not.
Q. You didn't see anybody go in there? — ^A. No, sir.
ROSSLYN L. SOWERS, being first duly sworn to testify to the truth, the
whole trutli, and nothing but the trutli, testified on behalf of the contestant as
follows :
Direct examination by Mr. Adams:
Q. W^here do you live?— A. City of Charlotte.
Q. How long have you lived here? — ^A. About 14 years.
Q. Were you living here on the 5th day of November, 1912, and for several
weeks inmiediately following that? — ^A. I was.
Q. You are an attorney by profession? — ^A. Yes, sir.
Q. Your age?— A. I am 42.
Q. Did you have any occasion to or did you visit the office of the clerk of the
county of Eaton within a day or two after the 5th of November, 1912? — ^A. I did.
Q. In reference to the election returns, when did you, If at all, visit the
clerk's office of Eaton County next follow^lng that election? — A. Well, I think I
was in there the day following the election ; I was also in there the day follow-
ing that. I recall one particular instance.
Q. What occurred when you were in the clerk's office on the 7th day of
November, 1912? — ^A. I went In there in company on that occasion in the after-
noon with Mr. Towne and Johnson.
Q. What Towne? — A. Frank Towne and Frank Johnson, to look over the
votes that I learned were there from the various precincts, or a portion of them.
Q. What office are you spc^aking of? — A. The county clerk's. On the 7th of
November we went over the I>ookB that were there on that occasion — the state-
ment book and tally sheets, or a portion of them. We went over the books
OASinBT y& SMITH. 8L'
there — the statement book and tally sheets. If the statement books were there,
we went over the statement books; and where the statement books were absent
we looked over the tally sheets.
Q. Were those statement books and tally sheets when you examined them on
that day contained in envelopes or not? — ^A. No, sir; they were not in tte
original envelopes in which they were forwarded to that office.
Q. Were there any returns from any precinct or any precincts of the countj
of Eaton missing at that time? — A. The statement books of some of the town-
ships were not there: also the returns from certain townships at that time
hadn't — the statement books from some of the townships were not there.
Q, Do you remember what townships the statement iKwks were not there? — A.
I couldn't say exactly ; there were two or three of them, at least.
Q. Were there either tally sheets or statement books from every precinct in
the couuty of Eaton there in thnt office at that time? — A. I think there were, or
they came in during the time we were there.
Q- Do I undeistnnd you to say ttiat you looked those statement books over and
the tally sheets at that time? — A. Yes, sir.
Q. Did anybody assist you in doing that? — A. Mr. Towne and Mr. Johnson'
and myself were engaged in that; I read off the list from the t>ooks tliat were
there and Mr. Johnson and Mr. Towne each took down the figures so far »i
particular ones, particular candidates, had been voted for. I think then Mr.
Towne and Mr. Johnson {)ersonal]y looked over the principal ones and verified
the figures.
Q. Were there any others in the office at that time? — A. There were quitp
a number, seveial people — John C. NMchols, Ernest Pray was there, and John
Davis, of Battle Creek, was there, a Justice of the peace in Battle Creek. There
were several other people that I do not recall; I didn't notice them all. John
M. C. Smith's daughter was in there.
Q. A daughter of Congressman Smith? — A. Yes, sir.
Q. What time of day did you go In there on the 7th? — A. I should say some-
where between 2 and 3 o'clock, just exactly the time I could not say; it
might have been a iittle later.
Q. Where did you find the statenient book when you went in? — ^A. There wree
a iiortion of them on the dei-k at which Mr. Nichols was sitting, the clerk's desk,
iibout the middle of the office.
Q. Was that in the public office? — A. Yes, sir.
Q. Of the county clerk? — A. Yes. sir. We took those and carried them across
to the north side of the desk or table on the north side of the room ; while Mr.
Johnson sat at that table I was standing up, going over the books. All of them
were not there at that time, but afterwards we got them from tlie office, private
office of the county clerk — those we hadn't at first gotten.
Q. Is the John C. Nichols you mention the same John C. Nichols who wa«J «
candidate for circuit court commissioner on the liepublican ticket at the NoveB»-
ber 5, 1912, election, in this county? — ^A. Yes, sir.
Q. Did you have any talk with Mr. Nichols at that time? — A. Yes, sir; I
had a conversation with him when I first went in; there were several of us
who were engaged in that conversation — Mr. Towne and Mr. Johnson and Mr.
Nichols and myself, and several others were engaged in the conversation; it
was not between any one person and Mr. Nichols particularly, but Mr. Nichols
was talking to the three of us rather.
Q. What talk did you have with him?
Mr. BELLOWS. That is Immaterial.
A. I told him we would like to look over the books, or asked hUn if those
were the books, and he said they were. We told him we would like to look over
the books and see the result on certain officers or certain candidates that had
been voted for. He says, ** I have them already tabulated," and gave us tlie
totals according to his tabulation.
Q. What totals did he give you? — A. 1,027 on Congressman, was what we were
i)artlcularly interested in and inquired about.
Q. 1,027 what? — ^A. 1.027 plurality on Congressman Smith in this county over
the highest competitor. We suggested to him that we would prefer to go over
the books ourselves and make our own tabulations, and we did.
Q. Did he say anything about the necessity of going over those? — A. He said
he had gone over it and made these figures fi'om the books to avoid Uie neces-
sity of going OA'er them. If we wanted to take his figures.
Q. Did you go over those books yourself? — A. Yes, sir.
286—13 6
82 CABNEY VS. SMITH.
• Q. What did you find from your iDvestlgratiou different lA the footings be-
tween Congressman Smith's and Carney's vote for Representative In Con-
gress?—A. We found it to be 912 in favor of Congressman Smith.
Q. Mr. Davia you said, was in there? — A. John Davis, of Battle Creek; yes,
sir.
Q. Do you Icnow whether Mr. Davis was interested In the political cam-
paign?— A. Nothing only what statement he made to me.
Q. What did he say?
Mr. Maynaro. We object to that as incompetent and immaterial.
A. He snid he was one of the committeemen from Battle Creelc.
Q. What committeemen? — A. Congressional committeemen from Battle Creek.
Q. Now, did you see, when you were In there at thnt time, any of the en-
velopes in which the election returns supposedly had come into the clerk's
office? — A. Yes, sir; I saw the envelopes there. If I said that none of these
books were in the envelopes, I will say that some of them might have been in
therje ; we took them out in going over them.
Q. Did you find any of these envelopes sealed when you were in there? — ^A.
No, sir; not in that ofilce.
Q. When you determined the difference in the vote between Congressman
Smith and Mr. Carney for the oflice of Representative In Congress to be 912
on said occasion you have testified about, did you have any talk with Mr.
t>flvl8 thei'e in the clerk's ofilce about that figure? — A. Yea, sir; not particu-
larly as to that. I don't recollect talking with him about that; It was more
about the majority — ^how it stood, rather. I don't recollect any particular con-
versation with Mr. Davis at that time about that particular figure.
Q. After you had looked these figures ovet and found the difference was
912 between those two candidates, what, if anything, did Mr. Davis say there
about the difference being greater than 912; if so, what did he claim instead of
that?
Mr. Maynard. Objected to as incompetent, irrelevant, and Immaterial.
A. I don't recollect, but I could not undertake to state what the conversa-
tion was exactly. I recollect there was some conversation.
Q. Who brought out from the private ofilce the returns which you did not
get that day in the clerk's office In the first Instance? — A. 1 would not be
able to state that; they were brought out on our suggestion that they were not
all there.
Q. Do you know who was In the private office where the balance of those
returns were from which they came to you that day? — A. Well, Mr. Davis
had been going over some of the books in there.
Q. In the private olfice? Did you see a door between them? — A. Yes, sir.
Q. Do you know of any one else having been in that private office at that
time? — A. I do not.
Q. Did you have any conversation with John C. Nichols there In the clerk's
office about these election returns, the manner in which they had been handled,
or anything of that kind; If so, what was it? — A. I suggested to Mr. Nichols
that I knew of no authority in law for the books to be opened up and the seals
broken. I protested, or suggested to him rather, that I didn't think they had
any such authority.
Q' Did he make any remark to that? — A. It had been done, he said.
Mr. Maynard. I object to that as incompetent and immaterial.
Witness. At that time he told me It had been done, they had done It before,
and he thought he had a right to.
Q. Who was in charge of the clerk's office at that time, claiming to be in
charge of It? Actually in charge of It — I will put It that way?— A. I suppose
that Mr. Pray was, from some conversation I had.
Mr. Maynaed. I object to what his opinion or presumption is or what he
suppoFi^s as incompetent and immaterial.
Q. What do you mean by that? — A. During the time we were there in the
office Mr. Pray was answering a telephone call
Mr. Maynard. We object to that as Incompetent, Immaterial, and hearsay.
A. (Continuing.) And he reported, Mr. Pray did, to Mr. Nichols and those
who were present the result by precincts of the vote on Congressman from
Hillsdale C5ounty. In answer to a question over the phone — I don't know what
the question was — he says, " You are talking to Earnest Pray, county clerk of
Baton County. You will meet me in Lansing after January 1, at the house of
representatives. I would be pleased to meet you." I don't know what the ques-
CABNEY VS. SMITH. • 83
tion was. Mr. Praj was elected on the Republican ticket as representative from
this county.
Q. Was John C. Nichols in the room at the time Mr. Pray made that state-
ment?—A. He sat at the desk taking down the figures, not 2 feet from Mr.
Pray. Mr. Pray was standing at the edge of the desk, the receiver of the tele-
phone on the desk to a cord. John C. Nichols was at that desk taldng the
figures down as Mr. Pray read them off.
Q. Mr. Pray was using the telephone?— A. Yes, sir.
Q. Did Mr. Pray announce those figures as he got them through the tele-
phone?— ^A. He announced them precinct by precinct over the telephone ; reported
them, and they were taken down.
Cross-examination by Mr. Maynabd:
Q. Mr. Sowers, you are a practicing attorney in this county?— A. Yes, sir.
Q. You speak of the private office in the clerk's o li -e. Was one room more
public than the other? — A. There is a public office s iitl n door between them;
I don't know whether you would call it a private office or public office; I know
the attorneys and people generally have access to that office if they care to go
into it
Q. The attorneys go through into the vault, if they want to, where the records
of the court are kept? — A. Yes, sir.
Q. If you go into the office and you find the deputy clerk in the front office,
and you want to see the clerk, you go through without any announcement into
the other office? — A. Yes, sir; one is rather an outer office, and the other an
inner office.
Q. The inner has an outer doqr the aime as the other? — ^A. Yes, sir; I would
not call it private, yet there is more privacy to that office than the other, being
the inner office.
Q. The typewriting machine is in the back office? — ^A. In the second office ; in
the second room ; that is where they do their work.
Q. The first office you go into is the one in the northeast comer? — ^A. Yes, sir.
Q. There is a door between the office you refer to as the private office, to the
west of it? — ^A. To the west of it ; yes, sir.
Q. The corridor runs along at the south of both of these rooms? — ^A. Yes, sir.
Q. There are doors opening from both of these offices into that corridor? —
A. Yes, sir.
Q. There is no sign or painting anywhere to show you that one is called a
private otBce and the other a public office? — A. I am not certain whether on that
inner office there is a door with glass In It that has " Private" on it or not.
Q. You never saw it? — ^A. It seems to linger in my memolry there is, but I will
not say without going down and looking at it.
Q. Don't you know that a good deal of the time that door opening from the
west room Into the corridor stands open? — A. Yes, sir.
Q. And the public generally go into the one as well as the other? — A. I have
gone through there, and I have observed other people going through.
Q. There is a drinking fountain right near the door of the west office? — ^A.
Yes, sir ; to the right of it some few feet
Q. People can go from that drinking fountain Into either office? — ^A. Yes. sir.
Q. Did you see Mr. Davis in that west room taking figures? — ^A. No, sir; I
saw Mr. Davis in the other room.
Q. That is when you say he had been in there taking figures? — A. If I
answered you in that way, I say I saw Mr. Davis In that room, and those books
were in there or a portion of them were in there.
Q. Do you know from what precinct? — A. No, sir; I can't remember that.
Q. There was nothing to prevent anyone going Into either room to examine
those books at any time? — A. Not that I know of.
Q. They were open to the public? — A. They seemed to be.
Q. When part was in one room and others might be examining them, and
part In the other room? — A. Yes, sir.
Q. Part of them were on the table In the southeast comer of the front office,
and you went and examined them there? — A. About 6 or 8 feet from the clerk's
desk.
Q. Did you examine all those books at that time? — A. I went through those
books, every one of them.
Q. With reference to what office? — A. We tabulated the vote on Congressmen.
Q. Any other? — ^A. I don't think so at that time.
84 • CARNEY VS. SMITH.
Q. You were there in the Interest of Mr. Carney? — ^A. I was requested to go
over and take those figures down; there seemed to be some question on
Congressmen. «
Q, You were there looking up those figures? — ^A. We were looking up those
figures.
Q. You examined all those books? — ^A. Not at the request of Mr. Carney; I
will not say that. You asked me whether I was there at his request; I was
looking up the records.
Q. In Mr. Carney's interest? — ^A. Call it what you have a mind to.
Q. You examined all those books? — ^A. Yes, sir.
Q. You didn't see any evidence of an alteration on those books in that office? —
A. I think I saw there some evidence on a book, of it having be^i scratched out
and the figures rewritten ; I will not say an alteration or what it was.
Q. Can you tell whether an alteration or an erasure? — ^A. I could see it was
an erasure; I can't say whether an alteration or not
Q. Of a figure? — ^A. Figures or w^ords.
Q. Was it words? — ^A. I will not say positive which it was.
Q. Which township was it? — A. I couldn't say now.
Q. Can you pick out the book now? — A. I can pick out the book and show
you.
Q. All right; pick it out. Did you examine more than one such place? — A. I
would not be positive that I did.
Q. Do you remember of more than one? — A. Well, I don't say that I saw more
than the one. I saw some places where — I don't know whether more than that ;
I will not say. ^
Q. Did you compare that with the tally sheet? — ^A. No, sir; I did not make a
comparison with the tally sheet.
Q. You don't know whether it agreed with the tally sheet or not? — A. No, sir.
Q. Did you have any tally g«heets at all? — A. I examined the tally sheets
where we didn't get the statement book. This don't seem to be the statement
books of all the townships; for instance, Charlotte, fourth ward. I am looking
for the statement book. Have you the statement books separately there?
Q. Just a minuto. Is tills one of the books you referred to? — A. I observe
there is one book from the third w^ard of Eaton Rapids; I am not positive
whether that is one of them or not.
Q. Will you state on the record here whether there is any sign of an altera-
tion or change in this where the number of votes are written out in full? — ^A.
I don't observe any change in the words.
Q. Is there any sort-of an interlineation or alteration or erasure on the paper
where it Is written? — A. No, sir.
Q. But you observe the figures w^here they made them are blotted? — A. I
obsene that some of them had been and some erasures of some figures; evi-
dently 40 was the result.
Q. But not where it was written? — ^A. No, sir; but the figures.
Q. The figures evidently were made incorrect in the first place and then made
over? — A. Yes, sir.
Q. But where it was written out there was no change? — ^A. I don't recollect
of any change.
Q. I just want that on the record. You found no evidence of any change? —
A. No, sir: not on that book of any change; the figures and words didn't always
agree, however. I do not find but a couple of the statement books here. [More
books handed witness.] Aside from the one referred to, I don't see any here
at the present time.
Q. What precinct is that?— A. Roxand, I think; I am not certain as to that;
sometimes you pick a book up where there seems to be an erasure in the fiigures,
but the figures agree with the words. It was ESaton Rapids; that is the only
one I see now.
Q. First come the candidates' names? — ^A. Yes, sir.
Q. *' Whole number of votes given for the office of Representative in Con-
gress" is how many, written out? — A. Two hundred and five.
Q. In the first column the candidates' names appear? — ^A. Yes, sir.
Q. What is the next?— A. Then the words "Vote received."
Q. Written afterwards out at length? — A. Yes, sir.
Q. After the name John M. C. Smith, do you see 81? — A. Yes, sir.
Q. Is that written in a plain, legible hand— the 81?— A. Yes, sir.
Q. There are no alterations or erasures of the paper at all? — A. No, sir.
Q. It is fair on tlie face?— A- Yes, sir.
OABK£Y V8. SMITH. 85
Q. For Carney, written In full? — A. Seventy.
Q. In plain handwriting? — ^A. Yes, sir.
Q. Following the 81 figures, It is written?— A. Yes, sir.
Q. The same? — ^A. Yes, sir.
Q. It has been 81, only the figures are blotted, and they have written over
the same figures? — A. Yes, air.
Q. Thnt agrees with the written words? — A. Yes, sir.
Q. In the word *' seventy " the word Is written full, and afterwards it seems
to have been changed from 75 to 70? — A. The figures are blotted.
Q. It looks as though changed from 75 to 70 to agree with the words? — ^A.
Yes. sir; looks as though it might.
Q. Did you look at the tally sheet of that ward? — A. I did not.
Q. You didn't have any doubt about these figures st nding for the same as
the words written before them? — A. I don't kuow that I stopi)ed to consider
thnt.
Q. Well, consider it right now. — A. I have no doubt but what these figures
now agree with the words.
Q. This Is as it stood when you took those books and figured up the figures
that day when you were in the clerk's oflice? — A. I will not swear these figures
are the same now as then ; I have not the correct figures in my mind.
Q. You know these words have not been altered? — A. No, sir; they have not
been altered.
Redirect examination by Mr. Adams:
Q. There is another one there is a little change In [handing witness book]. —
A. Yes, sir; the third ward of Eaton Rapids, the one referred to.
F. B. JOHNSON, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestant as follows:
Direct examination by Mr. Adams :
Q. Mr. Johnson, where do you reside? — A. In Charlotte.
Q. How long have you lived here? — A. About two years and a half.
Q. Did you live here on the nth d«y of November last year? — A. Yes, sir.
Q. What is your age?— A. I am 60.
Q. Did you take any part at the fourth ward ele(»tion in the city of Char-
lotte, in tLe county of Baton, on election day, November 5, ll»12? — A. I acted
as challenger there for the Democrats by request.
Q. What time did you go to the voting place on that day In that ward? — ^A. I
got there just a few mlnutt^ after the rest of the oflicers were sworn In.
Q. About what time did you get there? — A. About 10 or J5 minutes after 7
o'clock In the morning.
Q. Did you stay there until 5 o'clock that night? — A. Almost continuously.
Q. Were you away to your dinner at noon? — A. Yes, sir; I stepped out to a
restiiurant and had a bite.
Q. You acted as challenger for the Democratic Party In that precinct? — A.
Yes, sir.
Q. Did you challenge the vote of anybody there that day? — A. I did one; yes,
sir.
Q. WhPt time in the day did you do that? — A. I think It was about 11 o'clock.
Q. Did the party vote whose vote you challenged? — A. No, sir.
Q. Did anything occur after that challenge there In connection with the elec-
tion or any member of the election hoard with reference to the challenge you
had made that you recollect now? — A. Some remark was made about me hav-
ing challenged a Democrat.
Q. Who made that remark? — A. Mr. Greenman.
Q. What Is his first name? — A. The alderman of that ward, James Oreenman.
Q. Was he acting on the election board that day? — A. Yes. sir.
Q. He was what— what officer, insi)ector?— A. One of the inspectors; yes, sir.
Q. Who were the other inspectors there that day? — A. Mr. Pope, another
alderman in that ward ; Mr. Porter deposited the ballots In the ballot box.
Mr. Adams. I have had the poll book for the election held on the 5th of
November, 1012, In the fourth ward of the city of Charlotte, county of Eaton,
State of Michigan, marked " Exhibit 14." I will read a little of page 2 of
this book. [ Reading : ]
"State of Michigan, County of Eaton, ss:
••I do solemnly swear that I will support the Constitution of the United
States ana the constltntloo of this State, and will faithfully discharge the
«
86 OABKEY YB. SMITH.
duties of the ofiflce of Inspector of this election held on Tuesday, the 5th day
of Noveml>er, 1912, according to the best of my ability.
*"i A. POPK,
" Taken, subscribed, and sworn to before me this 5th day of November, 1912.
William Jobdan, Notary Public.
** My commission expires February 13, 1915."
State of Michigan, County of Baton^ ss:
I do solemnly swear that I will support the Constitution of the United
States and the constitution of this State, and will faithfully discharge the
duties of the office of inspector of this election held on Tuesday, the 5th day
of November, 1912, according to the best of my ability.
"J. A. Greenman.
*' Taken, subscribed, and sworn to before me this 5th day of November, 1912.
"William Jordan, Notary Public.
"My commission expires February 13, 1915."
" State of Michigan, County of Eaton, ss:
** I do solemnly swear that I will support the Constitution of the United
States and the constitution of this State, and will faithfully discharge the
duties of the oiUce of inspector of this election held on Tuesday, the 5th day
of November, 1912, according to the best of my ability.
" Marian Porter.
" Til ken, subscribed, and sworn to before me this 5th day of November, 1912.
"William Jordan, Notary Public.
" My coumiissiou expires February 13, 1915."
Mr. Adams. And from the same exhibit the following:
" State of Michigan, County of Eaton, ss:
(t
CERTIFICATE OF INSPECTORS.
i<
We do hereby certify that the foregoing poll list has been carefully com-
pared by us with the duplicate poll list, as required by law, and all mistakes
found in such poll lists have been duly corrected by us and that said poll lists
are now correct and agree with each other.
" In witness whereof we have set our hands at Charlotte, in said county and
State, this 5th day of November, 1912.
" C. A. Pope,
"J. A. Greenman,
" Marian Porter,
"Inspectors of the general election held on
''Tuesday, the 5th day of November, 1912.**
Q. This Greenman you speak of was, you say, an insiiector at that election? —
A. Yes, sir.
Mr. Adams. He was a Republican alderman of that ward.
Mr. Matnard. We concede that; so was Mr. Pope.
Mr. Adams. How about Mr. Porter?
Mr. Maynard. I don't know about that.
Q, Do you know the politics of Mr. Porter? — A. I think I do.
Q. What were his politics on the 5th day of November? — ^A. I think he was
a Bull Mooser.
Mr. Adams. Do you conce<le that Mr. Pope was an inspector on that day?
Mr. Maynard. Yes.
Q. What talk did you have? What occurred there on that election day in
that voting place with reference to that challenge you had made? Just state,
as near as you can, Mr. Johnson, what the conversation was, and with whom.
Mr. Maynard. We object to that as immaterial.
A. The challenge for this man was left there with me by Mr. Childs, an out-
side party, claiming he was not a resident of the ward. He took his ticket
and got to the door of the booth, and ready to step into the booth, and I says,
** There is a challenge left here, Mr. Pope." He stopped then and hesitated a
little about what course to take, and I suggested to Mr. Pope he had better
CABN£T YB. SMITH. 87
take his ballot before having been marked and question him and ask him how
long he had been in the ward, and be said he moved in a week ago last Monday.
I says to Mr. Pope, " That evldenUy settles it ; he has to be in the ward 20
days." They asked him from where he had moved there, and he said he moved
over from the side, from the third ward, and Mr. Pope told him he would
have to go over there. I said it would probably not do him any good if he had
moved out of there within 20 days. They took the ballot and pasf>ed It to the
next man that came in. The remarks you refer to. I suppose. Is what Mr.
Greenman said in regard to it The next two or three men were evidently
Democratic voters. As they came in he charged them to look out, they might
get challenged: that Mr. Johnson was challenging the Democratic voters that
came in. I evidently said to Mr. Greenman, *' I think that is out of place;
yon have no right to make such remarks inside the voting place." Mr. Green-
man says, " We have been in the habit of ininning the election here, and I think
we know how without any advice from outside." Something to that effect I
don^t know that those were the exact words. I suggested to him there might
be some course to make him run it according to law, and that ended it That
i» all there was to it
Q. Was there anything s>jid there that day to voters about voting the county
ticket by any of those who were doing the work in connection with that election
board? — ^A. There was, in the morning.
Q. What was paid? — A. Mr. "Pope and I had a little argument about whether
it was the proper thing to call the voters' attention— Bull Moose voters* atten-
tion— to the fact that they hrd no county ticket
Q. Did Mr. Pope call attention to any of those who came there to vote that
day to the fact that there was no county ticket on the Bull Moose or Progressive
ticket on the ballot? — A. No, sir.
Q. When did this talk with Mr. Pope occur? — A. In the morning.
Q. Before any voting was done? — A. Practically ; yes, sir. There might have
been a few votes in.
Q. Did Mr. Pope sjiy anything to any of the voters there that day about
voting the county ticket, in your presence? — ^A. There were one or two that- had
asked for instructions. Mr. Pope apked them if they wanted to vote the county
ticket
Q. Were those the only ones he asked whether they wanted to vote the county
ticket? — A. I think so; there were but a few that asked for instructions.
Q. Now, did you go into the county clerk's oflSce here with Mr. Sowers, the
witness who left the stand a few minutes ago. to examine nny of the retumB
in that office — election returns? — A. I either went in with Mr. Sowers or met
him after I'went in the office.
Q. What time wns that? — A. It was on the 7th of November last
Q. Tell what occurred while you were In there, and whnt you did and who
was present, as far as you can. — A. Well, we had been getting the returns at
the Democratic headquarters, and there was considerable confusion about the
vote on Congressmen.
Q^ Get to the county clerk's office; what occurred there? — A. I atnrted to the
county clerk's office ; I understood the returns were there to be looked over, and
I thought I would go and find out what the actual vote was. I met Mr. Towne
at the comer near the drinking fountain, at the corner of the courtyard, and
asked him to go up with me. I thought it would be a good Idea to look it over.
Whether we met Mr. Sowers between there and the courthouse or after we got
in I am not quite sure. At any rnte, when we got in we found the statement
books on the desk, and Mr. Nichols had evidently just been taking off the vote.
I think I personally naked Mr. Nichols If we could take the returns and talce
off the vote on Congressmen, and he wild "Yes"; but he said, '* I have got the
figures here; I have just taken them off, and it will save you the trouble; you
may take my figures." I says, ** We prefer to copy them." And he turned
thein over to us. Mr. Sowers stood by the desk and read the figures on Con-
gressmen, and Mr. Towne and I made our figures separately.
Q. From what? — A. From the figures Mr. Sowers read.
Q. What did he read from? — A. From the statement book; my recollection !«
that all the sUitement books were there, too ; two of them were tally sheets. Ond
of those tally sheets was In lead pencil. We took the vote down and compared
our figures and footed them up and both arrived at the same result.
Q. On Congressmen? — A. Yes, sir.
Q. What result did you arrive at? — A. 912 majority for Mr. Smith.
Q. Or plurality?— A. Plurality.
88 CARNEY VS. SMITH.
. Q. What did the figures that Mr. Nk'hols turned over to you show the plu-
ralfty to be on CJongressmen ? — A. Mr. Nichols — there was. 1.023 or 1,027; my
taipresslon was that it was 23; hut Mr. Sowers says 1,027 in his testimony; it
wag 1,020 odd.
Q. Did you notice who was in the office at th*it time when you were there —
during any of the time you were there that day? — A. I was not acquainted with
any that were In the office personally, but afterwards I asked who they were. I
dkln^t even know Mr. Nichols at the time; Mr. Tow^ne informed me •
Q. (Interrupting.) Never mind that. — A. Mr. Nichols was there and Mr. Pray
iiud Mr. Davis.
Q. Did you hear Mr. Prj^y do any telephoning while you were there? — A. Yes,
Bkr.
Q. What did you hear? — A. I heard him read oflf the figures
• Mr. Maynard. We object to that as Incompetent and immaterial.
a: f Continuing.) And Mr. Nichols took them down.
Q. Where did be get those figures from? — A. I understood they were from
HlHsdaFe County.
Q. Was Mr. Pray using the telephone? — A. Yes, sir.
Q. Had he the receiver up to his ear? — ^A. Yes, sir.
Q. When Mr. Pray called off some figures Mr. Nichols took them down? — ^A.
Yes, sir.
Q. This Mr. Pray did while he had the telephone receiver up to his ear? — A.
TcB, sir.
Q. What did j'ou hear Mr. Pray say while using the telephone at that time? —
A. I heard him say, "After January 1 you might meet me at Lansing."
Q. Did you hear him say anything about being the county clerk? — A. Yes,
sir; that was when he first took the phone.
Q. What did he say?— A. He says, "This Is the county clerk."
Q. Was there anything said there to Mr. Nichols or Mr. Pray about the elec-
tion returns being taken from the scaled packages that you heard? — A. There
wd8 a little, I think. I think I said myself that It was a strange proceeding that
they should have those books before they got to the board of canvassers.
Q. Did anybody make any reply to that? — A. I didn't hear anything, only Mr.
Towne was talking, and I was talking about the matter between ourselves.
Cross-examination by Mr. Maynabd :
Q. When you got in the books were lying on the table in the center office? — A.
Yea. sir; they were out from the wall, in the first office.
Q. Was the table near the window toward the north? — A. I think It was near
the center of the room; the table we went to was over on the north side of
the room.
Q. Was there anyone examining these return books or statement books when
you went in? — A. Mr. Nichols.
. Q. Was he handling them? — ^A. Yes, sir.
Q. Anyone else? — A. I didn't see anybody else.
Q. There was quite a crowil iu there? — A. No, sir.
Q. Did you say Sam Kobinson was in there? — A. I am not sure he wtis at
that time. I tliink he came in before we went out.
Q. Two of the returns wore not there from two precincts? — ^A. The tally
sheets— the two statement books were not there.
Q. Books of what townships? — A. I am quite sure that Roxand was one of
them. I don't recollect about tlie other now.
Q. Did you see the statement books while you were there? — Ji, No, sir.
Q. Do you know of their being brought there while you were there, by mail? —
A. No» sir.
Q. Were you there when they were brought in? — ^A. No, sir.
Q. Did you hear Sam Robinson's testimony yesterday? — A. No, sir.
Q. In which he said w^hile he was there the statement books from two pre-
cinctfJ were brought in by mail. Did you see that? — A. No, sir.
Q. If they were brought in by mail It was after you left? — A. I think so. be-
eause we took the votes from the tally sheets on Congressmen from tliose two
precincts.
Q. Were the tally sheets with some of the officers who were making the re-
turns here furnished? — A. I don't quite understand that. Judge.
Q. Before the official returns came In, the voters from about the ctnmty
brought the returns to the county clerk's office for the Republican head-
quarters?— A. I suppose so.
CARNBY V|3. SMITH. 89
Q. They did to your office, didn't they? — ^A. Yes, sir. We got most of them
the night before
Q. When jrou were there this afternoon of the 7th you supplied those places
for which yon did not have the statement sheets by referring to certain tally
sheets? — ^A. Yes, sir.
Q. You don't Itnow where they came from? — ^A. I do not. I suppose they
were put in the books by mistalie in place of the statement books. That was
my impression at the time — that somebody had made a mistake and put in the
tally sheets instead of the statement books.
Q. If the statements were delivered later that afternoon it was after you had
departed? — ^A. I don't know about that
Redirect examination by Mr. Adams:
Q. The statement books and tally sheets that you examined there, were they
of like character as this that I hold before you now? — A. Yes, sir.
Q. Did they or not purport to be the tally books or tally-sheet books — state-
ment books — that wei*e signed by the inspectors of election? — A. I didn't look
at the signatures on any of them. I Just looked at the vote of Congressmen and
took it off ; I couldn't tell you as to that
Q. Were those statement books and tally-sheet books that you examined there
at that time the same ones that were handed to you or furnished by Mr. Nichols
or Mr. Pray there in the office? — A. By Mr. Nichols.
Q. John C. Nichols?— A. Yes, sir.
Q. Were those books printed with the list of the officers or candidates for
office in them? — A. Yes. sir.
Q. You talk about the tally sheets; do you mean a sheet or was it what is
called a tally-sheet l)ook? — ^A. A tally-sheet book; we always call those tally
sheets.
Q. When you mention in your testimony, then, **tally sheets," you mean
what? — A. I mean tally-sheet book.
Q. Before you came over here to look those books over with Mr. Towne and
Mr. Sowers, had you received from any source any figures that was claimed
to be the plurality of Congressman Smith and Mr. Carney for Representative in
Congress? — A. At the headquarters; yes, sir.
Q. W^hat headquarters? — ^A. The Democratic hendquartei-s.
Q. Was this examination that you made of the tally-sheet books and state-
ment books in the county clerk's office November 7, 1912, the only examination
that you made of those books? — A. We made them twice that day — in the morn-
ing with Mr. Sowers, and I went again In the afternoon: suggested that we go
over and look the figures over ourselves for the reason that we might be called
in court. We looked them over in the afternoon, so we could stjite the figures
ourselves, and compared the fignres.
Recross-examination by Mr. Maynard:
Q. When John O. Nichols handed you those books, did he give them to you? —
A. I think he did ; yes. air. In the afternoon we got part of them in the sec-
ond room; some were in the front room and some in the second room.
Q. Yon iooke<l at the tally book or tally sheet of Roxand?— A. My recollection
is that Roxaud was in lead pencil in one of the tally-sheet books,
Q. There is the tally sheet from Roxand; that is not In lead pencil? — A.
No, sir.
Q. What do you mean by "tally sheet?" — ^A. The books they make the tally
on ; this is a statenient book, the book they make the statement on.
Q. Is that the one you mean? IHandlng book to witness.] That is a tally
book, isn't it? — A. That is In ink; the one I had refence to was in lead i>encll.
Q. Then it was not this book?~A. No, sir.
Q. This is the tally sheet book from Roxand?— A. Yes, sir.
Q. If you looketl at the tally sheet, it was not that one, was it? — A. There
are two copies of these tally sheet books, are there not? Are these the ones
that came to the clerk's office?
Q. Yes, sir. — A. Here is one in lead iiencil now.
Q. Where is that from?— A. The township of Benton; that is probably the
one I saw: I don't remember of but one being in lead iwncil.
Mr. Adams. The totals are carried out with an indelible lead j)encil.
Q. You think oo examination that this tally sheet from Benton is the one you
referred to? — ^A. Y'es; I said I was not sure which township it was from, but
I remember distinctly of one being in lead pencil.
90 CABNBT 78. SMITH.
Q. That is nn Indelible pencil?— A. Yes, sir; I think it is.
Q. The figures in the right-hand column where they are carried out? — A. Yea,
sir.
Q. Where they have been dampend they show up a purple color? — ^A. Yes, air.
Q. Will you look at that and state whether or not In this case there has
been any interlineation or changes in the figures in this book — ^that is. Repre-
sentative in Congress — in the Smith and Carney vote or the Dingley vote? — A.
No, sir ; I don't think there has been any change there; there has been a change
there evidently [indicating].
Q. But that is not on their vote? — ^A. No, sir ; not on Congressmen.
Q. Here it shows the figures have been dampened?— A. Yes, sir; it is marked
over from 109 to 108, I think, there.
Q. There has been no change in the congressional vote? — A. I didn't Intend
to intimate that there had been any change.
Q. I want it on the record that there has been no interlineation or change. —
A. I suppose that was the recollection of the man when he took the vote from
the tally sheet instead of the statement book.
Q. When did you make these figures when Mr. Sowers and yourself and Mr.
Towne were present? — A. It was Just before dinner; then Mr. Towne and I
went back after dinner.
Q. You two alone? — A. Yes, sir.
Q. Mr. Sowers was not there then? — A. No, sir.
Q. Which time were the books brought from the Inside office? — A. In the
afternoon.
Q. You were subpoenaed as a witness? — A. No, sir.
WILLIAM WITHERALL, being first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified in behalf of the contestant as
follows :
Direct examination by Mr. Adams:
Q. Mr. Witherall, where do you reside? — ^A. Sunfield village.
Q. You have live<l there about how long? — A. In the village about 10 years.
Q. In that township? — A. In that township about 56 years.
Q. Your age is what? — ^A. Fifty-seven.
Q. Were you in the village of Sunfield on the 5th day of November. 1912? —
A. I was.
Q. Did you take any part in the general election that was held in that village
on that day? — ^A. Not In the daytime; no, sir.
Q. Did you at night? — A. I was in there in the evening; I relieved one of the
Inspectors, or one of the clerks, rather.
Q. What time did you go in there? — A. Oh, probably about 8 o'clock.
Q. Who did you relieve? — A. I relieved a man named Sjiyre.
Q. What did lie assist in doing?— A. Tallying.
Q. Did you mark down or make any marks on the tally book? — A. Sure;
yes, sir.
Q. Who w^as acting on the board there at that time when you commenced?—
A. Mr. Knapp, the clerk or deputy clerk. Squire Bacon and Mr. Hager; I think
that is all that was there at that time except Mr. Snyre, and he went out Just
as I went In.
Q. How long did you stay there? — A. Oh^ 1 think about an hour all told.
Q. Who took your [jlace when you quit? — A. Mr. Ma pea, when he got back.
Q. Were there any others there on that election board at the time you left
than those you have mentioned. — A. I took Mr. Knai>p'8 place at the time Mr.
Mapes came back; he wanted to go out for something and I tallied for him
until he got back.
Q. Do you know Mr. Say re? — A. Yes, sir.
Q. Did you vote at that precinct that election day? — ^A. Yes. sir.
Q. What did you see Mr. Sayre doing there, if anything, when you were in
that voting place? — ^A. I saw him instructing.
Q. Where was he stationed? — A. He was stationed back of the lK)oth; the
way the election booths are placed there they form a partition between the room
where the lnsi)ectors are and where the instructor is.
Q. Mr. Sayre was on one side of that partition? — A'. Yes, sir.
Q. And the rest of the members of the board on the other side? — ^A. Mr.
Sayre was near to the inside gate.
CABNEY VS. SMITH. ^ 91
Q. When the voters came ^n where did they get their ballots?— A. From Mr.
Sajre.
Q. Did they get their ballots In the presence of the officers of that election
board or not, in sight of them? — ^A. I don't know whether they could see them
or not ; I dou*t think they could.
Q. These booths were between them, were they not? — ^A. Sometimes, if the
doors were open so you could see back and forth.
Q. That is the booth doors? — A. Yes, sir.
Q. There were two doors to these booths? — ^A. Yes, sir.
Q. Unless the booth doors were oi»en they could not see through? — A. Yep, sir.
Q. The officers of the election could not see the voter when he received his
ticket from Mr. Sayre? — ^A. No, sir: they could not.
Q. Did you see Mr. Bera there, at any time, acting on the board? — A. No, sir;
be was not there at the time I was there.
Q. How frequently were you in the voting place there on the day of election
prior to the time A. I was not In there five minutes all day; I went in
just as I was going to dinner and didn't go In again until after It was closed.
Q. Were you present to know whether the board made any adjournment that
uight? — A, No, sir; I snw nobotiy; I supiiose, however. It was 12 o'clock.
Q. Do you ijersonally know that the board conveneil the next morning at Mr.
Bacon's office? Were you there when the board convened? — A. No, sir; I had
nothing to do with It.
Q. You didn't happen to be there? — A. No, sir.
Q. You were not at th^it voting place about 12 o'clock on the night of No-
vemb?r 5? — A. No, sir.
Q. You went away soon after you quit assisting the board In keeping the
tally? — A. Pretty soon afterwards: I didn't stay; I saw there was an all-night
job if they stuck to it before they got through, so I didn't stay.
Q. About what time in the day did you vote, about noon? — A. Just before
dinner; Just before the polls closed for dinner.
Q. Were you there when they closed the polls for the noon-day meal? — A. No,
sir; It was near noon; I suppose they must have closed right away.
Q. How far do you live frgm the city of Charlotte? — A. Well, it is an angling*
road : it makes it nearer — I don't know Just the number of miles, I think about
23 miles.
Q. About -23 miles?— A. I don't think It Is quite that far; Sunfleld Is R miles
west of this, and It Is within half a mile of the north line, so you can figure ft
yourself.
Q. You were subpoenaed to appear here? — A. Ye|3, sir.
Q. Who subpoenaed you? — ^A. A deputy sheriff.
Q. Were you paid your fees? — ^A. Yes, sir.
Q. How much were you paid? — ^A. $3.05.
Cross-examination by Mr. Feixows :
Q. Are you active in politics over there? — A. No, sir; I am not a politician.
Q. What I mean, you are not one of the party managers or a member of the
party committee? — ^A. No, sir; I am a member of the Democratic county com-
mittee, I think.
Q. A member of the Democratic county committee? — A. Yes, sir.
Q. And you have been for some years? — A. I don't know how many years, I
couldn't tell you as to that
Q. Have you known Mr. Palmer over there for a great many years? — ^A. About
25, I think.
Q. Mr. Palmer is a good, substantial citizen of the township of Sunfleld? — ^A.
Yes, sir.
Q. He is regarded as an honorable, upright man? — He Is a pretty proml-
nent — is his reputation at stake now?
Q. He Is r^arded as an honorable, upright man? — A. Yes, sir.
Q. You knew Mr. Bacon In his lifetime? — ^A. Yes, sir.
Q. Mr. Bacon's reputation was the same, was it not?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. I didn't know that his reputation was at stake.
Q. Answer what I ask you, and we will get along faster. — A. Sure, he had a
good reputation.
Q. Mr. Palmer Is and has been a Democrat ever since you have known him ? —
A. Yes, sir.
Q. What party did Mr. Bacon belong to?— A. To the Democratic Party.
92 CARNEY VS. SMITH.
Q. Both Mr. Palmer and Mr. Bacon were DenKv^rats last fall and supporters
of the Democratic ticket? — ^A. They were Democrats, I Bupix>se; I don't know
what they voted.
Q. Didn't you understand that they were supportinjc the Democratic ticket? —
A. I don't know anything about what
Mr. Adams. I object to that as irrelevant and immaterial.
A. I suppose they were Democrats.
Q. Mr. Hager — what was his politics? — A. A Republican.
Q. Was he firm in the faith last fall or did Mb slip a little?— A. I can gire
yon my opinion. If you want to know, I think he was a Bull Mooser.
Q. Mr. Hager had the reputation In that community of being an honorable,
upright man?
Mr. Adams. I object to that as Incompetent, irrelevant, and immnterial.
A. Yes, sir.
Q. Those were tlie three members of the board? — A. Those were the three
inspectors; yes, sir.
Q. None of them, as you understand, were Republics'ns? — A. Well. I don't
know, as I told you before; I don't know how they vote<l.
Q. You understand that Mr. Hager supi)orted Mr. Roosevelt? — A. That is
what I think.
Q, Of the three lns])ector8 none of them were Republicans? — ^A. No. sir.
Q. What was Mr. Sayre's politics? — A. I don't know.
Q. Mr. Sayre was a man who in years gone by had been supervisor of Sun-
fleld, hadn't he? — A. No. sir.
Q. He had lived in the to^vnship a great many years? — A. About 10 or 12
years.
Q. He was a man also who had the reputation of being an honorable, upright
citizen of the township?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. Yes, sir.
Q. A man whom jieople looked up to and respected? — A. Yes. sir.
Q. You say you understand he was a Democrat? — A. That is what I under-
stand: I don't know how he was enrolled.
Q. Do you know the politics of Mr. Mapes and Mr. Knapii?— A. T think I do;
tlie same as the others.
Q. That *s what I am asking you. — A. I think they were Republicans.
Q. Notwithstanding that, they also have a good reputation in that com-
munity, baven't they?
Mr. Adams. The same objection.
A. Yes. sir; all except their being Republicans.
Q. Then, as a matter of fact, everybwiy connected with that election in Sun-
field Township were of your go(Kl citizens over there? — A. Yes, sir.
Mr. Adams. The same objection.
Q. Whatever yon did you did correctly, didn't you? — A. I intended to; yes, sir.
I have been on* the board for the last 12 years about every election; I was In
there; the boys asked me to relieve them; thut is all.
Q. The tally was kei)t In duplicate?— A. Yes. sir.
Q. While you kept It you kept It correctly?— A. Yes, sir; as straight as I
could; I calculate<l to keep It straight.
Redirect examination by Mr. Adams:
Q. I supiwse you put down what was (ailed off to you? — .V. Yes, sir.
Q. Somebody called off and said a vote was for this candidate or that; yon
would put it down? — A. Yes. sir.
Q. You don't know whether it was called off straight or not?— A. No, sir; I
<»ouldn't tell about that.
Ry Mr. Fellows:
Q. Who did the calling off while y<m were In there?— A. Mr. Bacon called off
awhile and Mr. Hager called awhile.
Q. They were both inspec-tors?— A, Yes, sir; one was calling off and the other
was looking over his shoulder. They had the split tickets and they gave the
vote on those. A nnin was looking over bis shoulder or opi>o8lte him. both
looking at the ticket.
By Mr. Adams:
Q. I ask you whether you took any oath of office before you did any work
on the election board that night? — A. No; I did not.
CABNEY VS. SMITH. 9S
Q. Bid you at any time, working there, before or after, on 'that day? — ^A.
No, sir; not that day.
Q. Or any other day, to act on that Ijoard? — ^A. Not on that board; no, sir.
By Mr. Fellows:
Q. You would not have done the worli any more correctly if you had talcen
an oath?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. No, sir.
Q. How long have you been a member of the county committee — the Demo-
cratic county committee? — A, Four or five years; I believe six yeans.
By Mr. Adams:
Q. Are you sure you are a member of the county committee? — ^A. I am not
sare I am at the present time.
Q. Are you sure you were a member of the county committee on the 5th day
of November, 1912? — ^A. No, sir; I would not swear to it. I was up to last
gpring, I think, but I am not sure whether I was elected again or not Mr.
Palmer would remember that better than I would.
Q. You were enrolled, were you, as a voter at that election? — A. I was en-
rolled; yes, sir.
By Mr. Fellows:
Q. You haven't received any notice that your Job has been taken away from
you? — ^A. I changed my politics; I wouldn't wonder if they had taken it away;
I enrolled differently.
By Mr. Adams:
Q. How did you enroll? — ^A. I enrolled as a G. O. P.
Q. You mean as a Republican? — A. Yes, sir.
Q. Were you enrolled as a Republican prior to the time you acted on that
election board — November 5, 1912?— A. Yes» sir.
Q. So wh«i you acted on that board November 5, 1912, you were enrolled as a
Republican? — A. I was enrolled as a Republican.
By Mr. Fellows:
Q. ^ou say you were enrolled as a Republican? — A. Yes, sir.
Q. Do you mean you were enrolled as a Republican and a Democratic voter?
Mr. Adams. I object to the inquiry; it is the constitutional right of the wit-
ness to refuse to answer the question, and 1 am a little surprised that the attor-
ney general should ask that question. The laws of the State of Michigan are
calculated to secure the secrecy of the ballot. I object to it as incompetent.
Q. What I am getting at is whether you actually changed your politics or
not by the change of enrollment?— A. I have not changed my politics.
E. G. DAVIDS, being -first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestant as
follows :
Direct examination by Mr. Adams:
Q. Mr. Davids, you live where?— A. In the dty of Charlotte, this county.
Q. You have lived In this city how long?— A. It has been nearly 12 years,
Q. Were you living here on the 5th day of November last?— A. Yes, sir.
Q. How old are you?— A. I am 41.
Q. Do you know John C. Nichols, of Charlotte?— A. Yes, sir.
Q. Did you see John C. Nichols in any of the election precincts— I mean,
rather, in any of the voting i^aces in any of the precincts in Charlotte— on the
5th day of November, 1912?— A. Yes, sir; in the second ward I saw him.
Q. What did he do In that voting place there?— A. He was receiving— I saw
him two or three different times, both Inside and outside of the railing.
Q. What, if anything, did you see him doing inside of the railing of that
voting place?— A. *I saw him receiving ballots and depositing them in the ballot
box. ^ -
Q. What time in the day about was that?— A. It was about the noon hour;
I have forgotten whether Just before or Just after I went to dinner.
Q. Was Mr. Hamilton, the inspector, in that voting place?— A. Yes, sir; he
was.
Q. What was his given name?— A. They call him " Hal.!' I don't know.
Q. You saw Mr. Nichols and you saw him doing what?— A. He was receiving
ballots from the voters and depositing the ballots in the ballot box.
94 CABSTEY VS. SMITH.
Q. Is that the same John C. Nichols who was a candidate on the Repiiblioan
ticket at that election for the office of circuit court commissioner of ESaton
County? — ^A. The same man; yes, sir.
Q. How long were you in that voting place and observed Mr. Nichols doing
that work? — ^A. Now, Just how long I was in there at that time I couldn't say;
probably 10 minutes, possibly longer.
Q. He received ballots you say — Mr. Nichols did — from the voters? — A. Yes,
sir; I saw him receiving ballots from the voters.
Q. What did he do with them? — A. He deposited them in the ballot box.
Q. Any other time on that day or the evening of that day, in that precinct,
did you see John C. Nichols doing anything In connection with the election? —
A. I saw him in the evening after the polls were closed and while they were
counting the ballots; I saw Mr. Nichols Inside of the railing looking over the
ballots with the other inspectors, seemingly helping them to decide in regard to
whrt votes should be counted and what should not be counted.
Q. Did he say anythiixg about the ballots or any of them at that time? — A. I
think I heard him make the remark that it was the intention of the voter, so
and so — of course, I was some distance away and I don't know Just what it was.
Q. Do you know whether this same John O. Nichols was at any time during
that election day acting in any other capacity in that precinct at the voting
place? — A. He watf the Republican challenger for the Republican Party.
Q. Do you know Hal Hamilton, the gentleman 3*ou referred to a little while
ago? — A. Yes, sir.
Q. Did you know him prior to the 5th day of November, 1912? — A. I have
known hlui for some years.
Q. What did you see, if anything, Hal Hamilton doing In connection with the
work there on that election board that day? — A. In the forenoon Hal Hamilton
was acting as one of the Inspectors — receiving ballots and depositing them in
the ball( t box.
Q. You p w him doing that? — A. Yes, sir.
Q. Did you see Mr. Hamilton at any time that day talking to any voters in
that voting place? — A. There was an old gentleman that stood outside the rail-
ing and Mr. Hamilton was inside of the railing, and as I came along Mr. Ham-
ilton had a ballot in his hand. I could not say whether it was an instruction
ballot or what kind of a ballot It was, but he had a ballot, evidently because
of the conversation ; he had a piece of pai)er in his hand. •
Q. What color was the paper? — ^A. I couldn't say; but I heard him say to
this old gentleman, " If you wish to vote for Mr. Smith and the Republican
county ticket mark your ballot this way," Indicating it on the ballot how It
should be marked.
Q. The railing you speak of was the dividing line that separated the election
board and the booths from the people who came in there, I suppose? — A. Yes, sir.
Q. That is the railing you apeik of? — A. Yes. sir.
Q. Mr. Hamilton was Inside of the railing and this gentleman on the outside
of the railing? — ^A. Yes, sir; on the south, side of the booth.
Q. How close together were the two men standing? — A. Rather close to-
gether.
Q. Two feet?— A. I don't think that far apart.
Q. Have you held any official position in the city of Charlotte? — ^A. Yes, sir.
Q. What? — A. I have been justice of the peace and mayor.
Q. How long ago were you mayor? — A. My time expired last spring a year
ago.
Q. How long were you mayor? — ^A. Two years — two terms.
Q. One year each? — ^A. One year each.
Mr. Adams. I offer In evidence Exhibit 15. I am reading from what is shown
to be the poll book for the general election Tuesday, the 5th day of November,
1912. the second ward of the city of Charlotte, Eaton County. From page 2
of that exhibit, under the heading " Oaths to inspectors of election."
" State of Michigan, County of Eaton, ss:
" I do solemnly swear that I will support the Constitution of the United
States and of this State, and that I will faithfully discharge the duties of the
office of inspector of this election held on Tuesday, the 5th day of November,
1912, according to the best of my ability.
"Claude S. Knowles.
" Taken, subscribed, and sworn to before me this 5th day of November, 1912.
" Fbank p. Towne, Notary Public*
My commission expires September 9, 1913."
4(
CiLBNEY VS. SMITH. 95
•* State of Michigan, County of Eaton, 8$:
**I do solemnly swenr that I will support the Constitution of the United
States and the constitution of this State, and that I will faithfully discharge
the duties of inspector of this election held on Tuesday, the 5th day of Novem-
I)er, 1912, according to the best of my ability.
''C. R. Babbeb.
•* Taken, subscribed, and sworn to before me this 5th day of November, 1912.
** Frank P. Towne, Notary Public,
" My commission expires September 9, 1913."
Mr. Adams. I want to have it appear upon the record that there Is no other
certificate showing that Hal Hamilton was sworn to act as an inspector of that
election on that day; and further that the returns do not show that any others
than Claude S. Knowles and C. R. Barber were sworn to act as inspectors of
that election. They were sworn to act as inspectors of that election, and there
is no indication on this exhibit to show that any others except Claude S.
Knowles and C. R. Barber did act as inspectors of that election on that day.
I also desire to offer from this same exhibit the following:
•* State of Michigan, County of Eaton, *«;
it
certificate of inspectors.
** We do hereby certify that the foregoing poll lists have been carefully com-
pared by us with the duplicate poll list, as required by law, and all mistakes
found in such poll lists have been corrected by us, and that both s^iid poll lists
are now correct and agree with each other.
"In witness whereof we have hereunto set our hands this 5th day of No-
vember, 1012.
" Claude S. Knowles,
" Inspector of the General Election
Held Tuesday, the 5th day of November, J 9 12,''
Mr. Adams. The exhibit I am reading from does not show that any other In-
siieetor signed tlie certificate Just read, save Claude S. Knowles.
Cross-examination by Mr. Maynahd:
Q. You have been here in the city when boards were organized at these elec-
tion polls a good many times, haven't you, in the morning? — A. I don't l«now
whether I wagi ever present when It was organized or not.
Q. Didn't you ever pee the oflicers sworn in? — A. I think I was there once,
and I think I swore them in once.
Q. You swore them In early in the morning? — A. Yes, sir.
Q. I^ter in the day, at their convenience, they made out these certificates and
signed them?
Mr. Adams. I object to that as incompetent. Irrelevant, and immaterial, and
not the best evidence; if he ever swore them In, there would probably be u
record of what he did.
A. When I swore in the oflScers they were signed up and sworn to at the time.
Q. Are you positive about that? — A. I am pretty positive.
Q. I never saw that done in my life yet. — A. I don't think I ever swore
them in more than once or saw them sworn in except that once ; I don't get up
Bsuully early enough in the morning.
Q. You knew what office Mr. Hamilton held in the city at that time? — A. Yes,
sir.
Q. What was it? — A. He was alderman of the second ward.
Q. Do you know what officers in the city are made inspectors of election by
the charter of the city of Charlotte?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, and
not the best evidence.
A. The aldermen.
Q. Two aldermen In each ward? — A. Yes, sir.
Q. Mr. Hamilton then would be ex officio an Inspector of the election?
Mr. Adams. I object to that as Incompetent, irrelevant, and immaterial, and
not the best evidence — calling for the conclusion of the witness and argumen-
tative.
A. He would be an inspector of election.
Q. He BO acted during the forenoon of that day? — ^A. I saw him acting, I
think, twice during the forenoon.
96 CARNEY VS. SMITH.
Q. Do you remember the name of the old mnii you say he was talkiii<? to
when the man stood outside of the railing? — ^A. I don't know whether I knew
the old man or not; he stood with his back to me, and I was 10 feet» i>erhaps,
away. I didn't pay very much attention, only I thought it was not proper for
him to <lo it.
Q. Did you hear the conversation? — A. I didn't hear all of the conversation.
Q. You don't know what the old man asked him then? — A. No, sir?
Q. You didn't hear Mr. Hamilton request him to vote for any particular
candidate, did you? — A. No, sir; all I heard is what I stated.
Q. Give us that again. — ^A. " If you wish to vote for Mr. Smith and the Repub-
lican county ticket, mark your ticket this way." He indicated on a piece of
paper he had.
Q. Those are all the ones j-ou heard him say anything about? — A. Yes, sir; I
was Just passing along.
Q. Were there any others near? — A. I think there were others in the room
at that time; Just how close they were I don't know.
Q. Which place did Mr. Hamilton stand — where they received the ballots and
put them in the box? — ^A. He stood pretty well
Q. Was there any challenger there, Mr. Overmyer? — A. I don't know whether
he was there at that time or not.
Q. Did you notice whether he had his seajt'near where the insi)ector would
deposit the ballots? — A. I couldn't say in regard to that time.
Q. You don't remember that? — A. Not at that time; no.
Q. You can't tell precisely what time in the day that was? — A. It was in the
forenoon ; I couldn't say what time exactly.
Q. About the noon hour? — ^A. No, sir; it was before the noon hour.
Q. Was it the first time you were in that morning? — A. I couldn't tell you
that whether the first or not.
Q. You visited around the polls during the day? — A. Yes, sir.
Q. Kinc' of kc»oping a watch on the election? — A. In a way.
Q Were you interested in the result of that election? — A. I wa.s.
Q. You were a candidate for Judge of probate? — A. Yes, sir.
Q. On the Democratic ticket? — A. Yes, sir.
Q. And you were around from time to time all day? — A. Yes, sir.
Q. How many voting precincts were there in the city? — A. There were four.
Q. The first, second, third, and fourth wards? — A. Yes. Fir.
Q. Did you go in In the afternoon in the second ward? — A. I was there, I
think, once or twice in the afternoon; I couldn't state Just how many; I dont
rememlrer.
Q. Who was re<*eivlng the tickets and depositing them the next time you
went in? — ^A. Mr. Barber was receiving the tickets.
Q. Do you know Mr. Davids, or did you hear that Mr. Hamilton was taken
ill and they got Mr. Barber to take his place?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial and
hearsay.
A. I heaixi he was taken sick; yes, sir.
Q. You think that you were in there at least ten minutes while John C.
Nichols was receiving ballots and depositing them? — ^A. I should Judge about
that time.
Q. How many did you see him put in? — ^A. Several; I couldn't state exactly
how many.
Q. How many do you think? — ^A. Well, I couldn't state exactly; there might
have been six or a dozen voted.
Q. Do you say six were put in while you were there? — ^A. At least six.
Q. Would you want to say there were? — A. I wouldn't want to say so
positively.
Q. At any rate several votes were put In? — A. Yes, sir.
Q. When you went in at night they were counting up? — ^A. Yes, sir.
Q. Were the booths down or up? — A. The booths were down, I think.
Q. They wore light canvas booths? — A. Yes, sir.
Q. That was the first time they had ever been used? — ^A. Yes, sir.
Q. Did they have them down so the counting was in public so anyone could
see them counting? — ^A. They couldn't see the ballots.
Q. They were surrounded by the railing? — ^A. Yes, sir.
Q. What was it you heard John O. Nichols say that evening about the bal-
lots?— ^A. There was some dispute; I 'Coaldn't give the exact language; sone
CARNEY VS. SMITH.
97
dispute about counting a certain ballot I know and Mr. Nichols expressed his
opinion in regard to It. ^,^^4.1. 1^ ^«*«-
Q To refresh your recollection, didn't Mr. Knowles say that he could deter-
mine from that ballot what the intention of the voter was, and dldn t Mr.
Nichols say he didn^t see how he could tell what the intention of the voter was ;
was it not something of that nature?— A. I couldn't say whether Mr. Knowles
said anything or not. There was a dispute about the ballot.
Q. Finally, Mr. Knowles did as he had a mind to and did not follow the
advice of Mr. Nichols? ^ , ^ ^^ ,.
Mr. Adams. I object to that as calling for the conclusion of the witness.
A I don't know whether Mr. Knowles was inside or not.
Q. You don't know anything about that?— A. All I know is what I have
fttit^cd
Q. You don't know what John said, or which side of the question he was
on?— A. No. sir; I didn't see the ballot.
Q. You don't charge that he was Insisting, that he was finding fault with
some course, trying to Insist upon some course being followed, do you?
Mr. Adams. I object to that as incompetent and calling for the conclusion of
the witness and that the question does not call for anything that was said.
A. I took it he was entirely out of place, being inside of the railing.
Q. He was a challenger, did you say?— A. Yes, sir.
Q. He was the Republican challenger at that time?— A. Yes, sir; and also on
the county ticket running for office. ^ . ^
Q. Do you understand that it is the law that a man running for office Is for-
bidden by the law to be a challenger?
Mr. Adams. Objected to as Incompetent Irrelevant, and Immaterial and call-
ing for the conclusion of the witness.
A. Well, I don't know as I am required to give my opinion of the law.
Q. What Is your profession? — A. I am a lawyer.
Q. How long have you been In the practice of the law?— A. Ten or eleven
Q. bo vou understand It is the Michigan law that there is any statutory pro-
hibition forbidding a candidate for office to act as challenger for his party?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial. The law
speaks for Itself, and It Is not for the witness to construe.
A. What I meant when I said I didn't think be had any right
Q. Answer the question.
(r^st question read.)
A. I don't know as there is.
Redirect examination by Mr. Adams :
Q. Do you know Whether there is or is not such a law as counsel asked you
about in his last question?— A. I do not think that there is a law forbidding the
question he put to me.
Q. You understood, did you, that Mr. Nichols was a candidate on the Repub-
lican ticket at that election?— A. Yes, sir.
Mr. Adams. There is no question about that, is there gentlemen?
Mr. Maynabd. No, sir.
Q. Mr. Nichols was In there while he was a candidate on the Republican
ticket, I understood you to say, handling, receiving, and depositing ballots?
Mr. Fellows. We object to that as leading.
A. Yes, sir; I understand the law prohibits that In this State.
Recross-examlnation by Mr. Maynabd:
Q. Mr. Nichols was not handling any votes when they were counting them up;
he was not assisting in the count? — A. He had a ballot In his hand; I can't say
whether he was assisting In the count.
Q. He didn't assist In the count? — ^A. I didn't see him assisting in the count;
no, sir.
Q. Are you sure you didn't know the old man that Mr. Hamilton was talking
to?— A. No, sir.
Q. Can you glv.e me a description of him so we can find him? — A. No, sir.
I can't give you a very good description of him ; he stood with his back to me.
Q. A short man or long? — ^A. He was a man I should judge about 5 feet 7 or 8.
Q. What kind of a hat did he have on? — ^A. He had on a slouch hat — a
black hat
Q. And a black coat? — ^A. He had on dark clothes.
286—13 7
98 CABNiBY VB. SMTTH.
Q. An overcoat? — A. I couldn't tell yori.
Q. You don*t know whether he had on an overcoat or not? — A. I think he had
on an overcoat but I am not sure alwut that, though; I didii^t look hito orer
With the Intention of testlfylnj? about that.
0. Was he a gray-headed man? — A. I would miy he had gray hair.
Q. Was he smooth shaven or did he hare a beard? — A. I didn't see enough
of his face to tell you.
(By consent of the contestant and the contestee and their counsel, the hear-
ing was adjourned until Thursday, February 27, 1913, at 10 o'clock in the fore-
noon, to meet in the mu)ervi8or8* room in the courthouse in the city of Char-
lotte, Eaton County; Mich.)
In above-entitled matter it is hereby stljMilated by and between the re«p^-
tfre parties, by their respective attorneys, that each and every witness produced
as shown by the foregoing record w« s duly srvom, and his testimony was as
given by him taken down in shorthnnd by Josei»h W. fttockwell, United States
commissioner for the western district of Michigan, and by stiid commisuloner
was transcribed and written out by typewriter machine as shown by this fore-
going record; that all of said testimony, after being so written out. was care-
fully read over by counsel for said resi^ectlve parties, and the fotegoing record
correctly show^s the testimony of each and every witness and the proceedings
had and taken to the close of said record.
It is further stipulated and agreed that siiid resfiectlve witnci>ses need not
read over, attest, and sign their foregoing detK)Sitions. and that the writing out
of the testimony from snld shorthand notes of said resiiectlve witnesses In their
presence, respectively. Is hereby waived.
It is further stipulated that the foregoing deTtosltlons may be used for all
purposes of this contest, subject to all objections and motions api)earing on
the foregoing record, with like effect as If the same fully compiled with the
Rc^Vlsed Statutes of the Ignited States and the printed rules of the Committee on
Elections, Houfc of Representatives, applicable thereto.
I>ale(l this 2Sth day of February. A. IX 1913.
John W. Adams, Attomcy for ContCHtant.
HoRACK 8. Maynard, Attorney for ContcMrc.
February 27 and 28, 1913.
B. A. JOHNSON, being duly awoni to testify to the truth, the whole truth,
and nothing but the truth, testified In behalf of the contestant as follows:
Direct examination by Mr. Adams :
Q. Mr. Johnson, where do you reside? — A. I live in Bellevue, Eaton County.
Mich.
Q. Were you living there on the 5th day of November, 1912, election day? —
A. Yes, sir.
Q. How long have you lived In that township? — A. I have lived In the towft-
ship of Bellevue about 45 years.
Q. What Is your age? — ^A. I am 72.
Q. Did you take any part In the election as an officer, gatekeejier. or other-
wise, at Bellevue, on the 5th of November, 1012? — A. Yea, sir; 1 was gate-
keeper.
Q. For identification I have had marked as Exhibit " 16 " a book entitled " Poll
book of the general ele<*tion held on Tuesday, the 5th day of November, 1912, in
the village council rooms, township of Bellevue, C'Jounty of Eaton. State of
Michigan," and call your attention now to that exhibit rtnd ask you whether
that is your signature to the oath of gatekee{)ers at that election? — ^A. Yes, air.
Q. You signed that, did you? — A. I did, sir.
Q. On that 5th day of November, 1912?— A. Yes, air.
Q. You were sworn before Dan L. Hall? — A. Yes, sir; and Mr. Eavans, too.
Q. Now after taking that oath on that day there, state whether you did act
as gatekee|)er at that election on that day. — A. I did.
Q. Wliat gate did you have charge of that day? — A. I had charge of the
entrance gate.
Q. How many booths were there there In that voting place that day? — A, I
think there were six.
Q. Were they wooden booths? — A. Yes, sir; wooden booths.
CABNEY VS. SMITH. 99
Q. Do yon kuow wbetlier any fnstructlotis were given that day there to any-
body, to any of the voters who voted there in that voting place on that day? — ^A.
Why. there were several, I couldn't say how many, that were partially blind,
and they had no glasses, and they wanted instructions and they asked for Iheui.
Q. Do you know whether there were any there who applied for Instructions
on the ground that they could not read nor write the Bnglish language? — A.
Weil, now, I think there were one or two there, Hungarians that had not been
naturalized there, they cou1dn*t read the Elnglish language; they were pretly
good scholars, however, in their language.
Q. Was there an oath administered to any one of those men who applied for
instructions in the manner of marking their ballots there that day by any of
the officers of that election that you know of? — A. Why. I don't think there
were; I don't remember any such thing.
Q. Who went into the booth or booths with the men who applied for instruc-
tions in the matter of marking their ballots there?— A. Well, the two Justices of
the peace on the board — one is named Hall and the other is named John
Rogers — they were the ones that gave out the tickets, and when they were in-
stmcted they went in the lx>oth with them.
Q. Did two of the inspectors go into the booths with the same man who ap-
plied for Instructions or only one? — A. One; that is right.
Q. One besides the voter? — ^A. Yes, sir.
Q. Do you know a man named Hoyt? — ^A. Yes, sir.
Q. Abe Hoyt?— A. Yes, sir.
Q. Was he around that voting place on that Election day; did you see him
there? — ^A. Yes, sir ; I let him into the booth, into the gate, and he voted about
10 oVlock in the forenoon.
Q. Did he come into that voting place again that day? — ^A. Yes, sir.
Q. When? — ^A. Right after dinner.
Q. You saw him? — A. I did, sir.
Q. Did he come in with anyone? — ^A. Yes, sir.
Q. Who did he come in with?— A. With blind Orin Kimberly,
Q. Kimberly was a blind man?— A. Yes, sir; totally blind.
Q. Just describe what Mr. Hoyt did when he came in with this man? — A.
Well, he led him up to the gate, and I spoke to Mr. Kimberly, and I told him —
I took hold of his shoulder so f indicating] — there was quite a little alley up
to the booth, still there was a railing between him and the board, and Hoyt-
went through on the other side.
Q. You speak of the board, what board? — A. I mean the election board.
Q. Go on. — A. He said he had agreed to see Uncle OrIn through.
Q. Who said that? — A. Mr. Hoyt, and led him up toward the booth. Now
he opened the door of that booth, but whether he went in or not, that I couldn't
swear to.
Q. Was Mr. Hoyt at that time that you have Just described within or without
the railing? — ^A. He was within the railing.
Q. He had voted at 10 o'clock on that day? — A. Yes, sir; before 10 o'clock,
because I think the number of his vote was 10.
Q. His number is No. 18.-^A. Somewhere along there.
Q. A. B. Hoyt?— A. Yes, sir.
Q. I show you Exhibit 16, and call your attention to the list of voters under
the head ** Number of voters," under the hejid " Name," the name of A. B.
Hoyt.— A. Yes, sir.
Q. Is that the Hoyt you referred to? — A. Yes, sir; Abraham B. Hoyt.
Q. Now, then, what happened then? — ^A. W^ell, I don't know where Hoyt went
to ; he didn't come ont by ma
Q. Did he come out through that gate? — ^A. No, sir; he went in my gate, but
be didn't come out there. There was a large crowd there right after dinner,
and I had to work so to let the men in.
Q. Do you know whether this man Hoyt was a Democrat or a Republican or
belonged to some other party?— A. He is called a Republican there in the town,
and I guess he ia
Q. Do you know whether the A. B. Hoyt you have been testifying about was
working in the interest of John M. C. Smith prior to that election day? — A. He
says he was.
Q. Did he tell yon so? — A. Yes, sir.
Q. YM you know Whether or not he was working for John M. C. Smith, candi-
date for Congress at that election on that election day on the Republican
ticket?— A. Ye«, sir.
100 CARNEY VS. SMITH.
Q. Was be? — A. Tes, sir; be said be did; he told me so himself, and I hare to
believe \t.
Q. What did Mr. Hoyt tell you he did?
Mr. Maynard. We object to that as incompetent, irrelevant and immaterial.
A. Well, he told me he dug some potatoes for a man, so he could come and
vote.
Q. So who could vote? — ^A. The man he was digging the potatoes for; he
went out on the outskirts of the town.
Q. Did he tell you who^ the man was he dug potatoes for? — ^A. Yes; be told
me, but I can*t remember who It was; I don't pay much attention to those
things, anyhow.
Q. Did he tell you anything about going to work for this man, so this man
could come and vote for some particular person at that election? — ^A. He said
he worked for John M. C. Smith.
Q. Did he tell you anything about going to work for this man so this man
could come and vote for some particular person at that election? — A. He aaid
he was after voters.
Q. Who said that?— A. Mr. Hoyt.
Q. Did he tell you anything more, this Mr. Hoyt? — A. Yes; he told me more,
but I don't know as it has any bearing on that, unless you want me to tell it.
Q. You were there in attendance as gatekeeper that day from what hour in
the morning? — ^A. Well, sir, I got there somewhere about 7 o'clock and helped
put the booths up, and after the booths were put up we got the railing put up.
Q. Did you go away? — A. Yes, sir; I went to dinner.
Q. At any time during the time the election board was in session? — A. Yes.
sir; to dinner.
Q. What time did you go to dinner ?< — A. About 12 o'clock.
Q. When did you get back? — A. Somewhere in the neighborhood of 1 o'clock;
Mr. Eavans just went to dinner, the other gatekeeper.
Q. How long did you stay there tlien? — A. When Mr. Hoyt came in with Mr.
Kimberly, Mr. Eavans wns not there; he was to his dinner.
Q. How long did you stay there after you got back from your dinner? — ^A. In
the booth?
Q. In the voting place? — A. Until the polls closed at 5 o'clock.
Q. Were you there during the time the vote was being counted? — A. Y^es. sir:
I was there part of the time. I went home somewhere about 10 o'clock at night.
Q. How many men, according to your best recollection, were given instruc-
tions in the manner of voting there that day? — A. Well, sir, I couldn't tell you
how many ; I didn't keep any tally or count ; it would be guesswork if I should
say.
Q. Several? — ^A. I saw five or six, and maybe more than that; might have
been more.
Q. Were there many foreigners voting there at that election? — ^A. Not a grent
many ; I don't think there were over five or six from the cement plant that voteil.
Q. Do you know a man by the name of H. M. Weed? — A. Yes, sir.
Q. Do you know whether he held any official position in Bellevue at the time
of that election? — A. Why, he was head of the boanl, supervisor.
Q. He was supervisor from Bellevue township? — ^A. Yes, sir.
Cross-examination by Mr. Maynaro:
Q. Mr. Johnson, have you ever acted as gatekeeper at any other election in
Bellevue than this one? — A. Yes, sir.
Q. You have done so several times? — A. Well, yes.
Q. You are pretty well acquainted with the voters In that precinct? — A. I
ought to know them all i)retty well.
Q. You saw the most of the voters that entered that precinct that day, didn't
you, when they went in? — A. I had to; they had to go by me to get in.
Q. You knew them all? — A. No, sir.
Q. The most of them? — A. No, sir; there were men in Bellevue I didn't know.
Q. How many of them? — A. There was a lot of new people that moved in
there and they have large farms.
Q. But the great bulk of voters you knew? — ^A. Yes, sir; I knew^em while
I have been a resident there 45 years.
Mr. AoAMS. I object to that, not having had time to make an objection before
the answer; I object to the question as irrelevant and immaterial and move
to strike out the answer for the same reasons.
Q. They are all good, straight, honest men? — A. Yea, sir.
CARNEY VS. SMITH. 101
Q. Were you acquainted with the members of the board? — A- Yes, sir.
Q. The election board at that precinct on that day? — A. Yes, sir.
Q. Who were they? — A. The board consisted of Mr. Weed
Q. What office did he hold?— A. Supervisor; and Dan Hall.
Q. What office does he hold? — A. Justice of the peace.
Mr. Adams. I move to strike the last answer out as irrelevant and immn'
terlal and object to the question on the same ground.
Q. Who else? — ^A. Another Justice of the peace that was there — John Rogers.
Q. Was he a member of that board on that day?— A. Yes, sir.
Q. Who were the clerks? — A. Well, the township ch»rk
Q. Who was he?
Mr. Adams. I object to this question as Incompetent. Irrelevant, and imma*
terlal under the returns of the board as made to the county clerk of Eaton
County of that election by the so-called election board under the evidence con-
tained in Exhibit 16. and not the best evidence.
A. Mr. Pendle.
Q. I>o you remember his given name? — A. I think A. H.
Q. What other clerk?— A. Well, John Hoyt.
Q. Who constituted the election board on that day?
<No answer.)
Mr. Adams. I object to that as incompetent. Irrelevant, and immaterial and
not the best evidence »nd calling for the conclusion of the witness.
A. The two clerks — the enrolling clerks were John Hoyt, Fred Fitzgerald, and
S. B. Evans.
Mr. Adams. I move to strike out the answer as calling for the conclusion of
the witness, not the best evidence, and as irrelevant and Immaterial to the issue.
Q. What are your jiolitics? — A. Well, sir, I am a Democrat.
Q. What are the politics of S. B. Evans? — A. He is a Democrat.
Q. Has S. B. Evans been supervisor of that township for a number of years?
Mr. Adams. I object to that as Incompetent, irrelevant, and Immaterial and
not the best evidence.
A. He has; yes, sir.
Q. On which ticket was he elected when he was elected supervisor from the
township of Bellevue?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial; not
the bes*^ evidence and calling for the conclusion of the witness.
A. He has always been known as a Democrat; he was nominated on that
ticket.
Q. Did you see anything that occurred under your observation at that elec-
tion in that precinct that was in any wise fraudulent and dishonest?
Mr. Adams. I object to that as incompetent, irrelevant, and Immaterial and
cfllling for the conclusion of the witness.
A. Why, I don't know as I did; no, sir.
Q. They counted up the votes, and as far as you saw It. It appeared to be — as
far as you observed — ^a good, straight, honest count of the votes cast? — A. I
couldn't swear to that at all.
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial and
calling for the conclusion of the witness.
Mr. Maynard. I am asking what it appeared to be to him.
Mr. Adams. That would make no difference.
Witness. I have answered your question; I didn't watch the tally sheet
very closely.
Q. But you didn't see anything wrong, did you?— A. Oh, no, sir.
Mr. Adams. Same objection as to the last question.
Witness. T answered it before.
Q. How long have you known Orin Kimberly?— A. Ever since I have lived In
Bellevue; I knew him first when he lived in Charlotte.
Q. How long has he been blind to your knowledge?— A. Oh, I couldn't tell
you exactly; 20 or 25 yearsw
Q. He is a well-known citizen In Bellevue?— A. Yes, sir.
Q. Was he a popular and well-loved citizen by you business men there in the
dy for a good many years?
Mr. Adams. Objected to as irrelevant and immaterial.
A. Yes, sir; he was a good, kind man.
Q. This Abraham Hoyt was an old lifelong friend of his, was he not?— A.
Why, I don't know anything about their friendship.
102 CARNEY VS. SMITH.
Q. You have known him for a good niany years; they were closely aequalDted
with each other? — ^A. They lived close together.
Q. You didn't consider It anything strange or out of the way that Abraham
Hoyt should help his blind friend get to the polls, did you?
Mr. Adams. Objected to as incompetent, Irrelevant, and immaterial.
A. I would lead a blind man myself.
Q. You didn't think there was anything wrong about that? — ^A. No, sir.
Mr. Adams. I object to it as incompetent, irrelevant, and immaterial what
he thought; his opinion is not evidence.
Q. Mr. Johnson, was there anything wrong in Mr. Hoyt assisting Orin Kim-
berly to go to the polls on this occasion that you have described?
Mr. Adams. The same objection as t)efore.
A. Why, no; I didn't think so.
Q. Did you see anyone give Mr. Kimt)er1y a ballot to vote? — A. No, sir; I
did not.
Q. You spoke or s'ated that at some place or some time Abraham Hoyt told
you that he went and dug potatoes for a man so the man could go to the polls
and vote; was that the statement you made? — A. Yes, sir; he told me so.
Q. Where was that? — A. Well, now, I couldn't tell you; it was in some store
where plenty could hear it.
Q. Since this election? — A. Yes, sir: since the election.
Q. What was the name of the man? — A. I told you I didu*t know what the
man's name was.
Q. You don't know the name of the man? — A. No, sir; he told the name of
the man; it was somebody that lived in the village.
Q. Who was present M this conversation? — ^A. Now, I couldn't tell you.
Q. Can you give nie the name of anyone that was there? — A. No, sir; I could
not.
Q. Can yon give the place? — A. I don't care a snap, only he said it.
Q. Can yon jrlve the place? — A. No, sir; I can't tell you. It might have been
in his own office.
Q. Are you sure it was this year? You might be niistaken about that. — A, I
guess not; it was not this year. It was last year; It was in November.
Q, Can you tell the date when he said it? — A. Xo, sir.
Q. Or anywhere near? — A. No, sir.
Q. Within some weeks? — ^A. Well, it was along in Novenii)er when we were
talking al)out the election.
Q. I would like to have you fix the date If you can. — A. That I can't do; I
can't do It.
Q. It didn't make very much of rn Impression upon your mind? — A. I paid no
attention to what he said ; I didn't care.
Q. Can you glA-e the exact language? — A. Why, he was telling how he worked.
I don't want to tell It all, because it might reflect upon the other candidate. I
don't want to say a word.
Q. I am not asking you for anything that includes any other candidate; I
am asking for this iiarticular language. You say he ssild he went and dug
potatoes so the man could go to the polls and vote? — A. He did.
Q. Have you given the exact language? — Give It again. — A. Well, sir, he said
he went and dug potatoes for a man so he could go and vote for John M. C.
Smith.
Q. Was that after the November 5 election. 1912. or was it some other electiou
he did that? — A. It was last November; November 5.
Q. He said it was? — A. Yes. sir.
Q. You so understood him? — A. Yes, sir.
Q. You can't tell where the i)lace was, nor the date nor who was present, can
you? — A. No, sir; I could not.
Q. Do you know what time of the day this conversation took place? — A.
Well, sir. it was daylight ; I know that. I would not have been there If it hadn't
been.
Q. You don't go out nights? — A. No, sir.
Redirect examination by Mr. Adams:
Q. Mr. Johnson, did John L. Hoyt act as one of the clerks at that election
that day? — A. Yes, sir.
Q. Do you know how that John L. Hoyt was. If at all, related to this A. B.
Hoyt? — ^A. He was a son.
CARNEY VS. SMITH. 108
Q. Who is postmaster now in BeDevue? — ^A. Well, sir, we have no postmaster.
The postmaster bas resigned.
Q. Was this John L. Hoyt, do you Icnow, a candidate for the Bellevue post-
office just prior to this Noveml)er 5, 1012, election ?
Mr. Matnabd. Objected to as incompetent and immaterial.
A. He was; yes, sir.
Q. Now, was it after or before the election tbat yon had that tallc about the
jiotato matter with the father of this John I^. Hoyt? — A. It was since election.
Q. What Hoyt — ^you 8«id in your answer, rather, to Mr. Maynard — tbat A. B.
Hoyt said something to you about some candidate. Now. what candidate's
name did he use when he nald tbat? — A. Why, he said that John M. G. Smith
had turned him right down after all his work and handed in the name of Mr.
KImberiy— M. H. Kimberly.
Q. For what? — ^A. For postmaster.
Q. That is what A. B. Hoyt told you jifter election? — A. Yes. sir; be even
went on find said he wrote a letter to him.
Q. Who did?— A. Mr. Hoyt.
Q. Wrote a letter to whom?— A. Why. John M. C. Smith.
Mr. Maynard. I object to that and move to strike out the conversation as
incompetent and immnterlal.
Q. Can you say that Mr. Smitb had written a letter to Mr. Hoyt? — A. He
didn't s?iy.
Q. This man that acted as clerk there, John I^. Hoyt, do you know what his
politics were on that election day and before? — A. Yes, sir.
Q. What? — A. Republican; a straight Republicnn bonrd.
Q. This man M. D. Rogers, you 8i)oke of his being a justice of the peace; do
yon know whnt his iiolltlcs w^ere on tluit elwtion day and before that election
da y ? — A. Republ lea n.
Q. Who was the other justice of the i)eace you mentioned? — A. Dan Hall.
Q. I). L. Hall, wfis It?— A. I). N.. isn't It?
Q. Wbat is his first name?— A. Dnnlel.
Q. Po you know what the ijolltlcs were of tliat Hall on that election day and
before that election day? — A. Republican.
Q. How near to the booth did A. B. Hoyt come with this man Kimberly on
tlmt day? — ^A. Inside of my gate.
Q. How close to the booth were he and Kimberly together? — A. Hoyt led him
up a short alleyway to the second booth, and Hoyt oi)ened the door himself. I
think Dan Hall went in the booth with hini, but whether Hoyt went through that
booth and out on the other side around th'it way, I don't know where he went,
or whether he went back of the l)oard. I had all I could attend to watching
the
Q. Do you know what the i)olitlcs of this blind man, Mr. Kimberly, that you
saw that day had been before that election day? — A. He has always voted thp
Democratic ticket.
Q. In niaklng your answers to the questions that were put to you by Mr.
Maynard on your cross-examination, when he asked you whether there was
anything fraudulent or dishonest occnrreil there on that election board that day,
I wish you would state whether you know what the law designates as fraudu-
lent or dishonest nets in connection with election.
Mr, Maynabd. Objected to as incomi»etent and Immaterial.
A. I never have read the law in regard to these new elections.
Q. Did you ever read the decisions of the supreme court of the State of
Michigan defining what Is fraudulent or dishonest with reference to the conduct
of an election board? — A. No, sir; I have not.
Q. You were asked what you thought about certain acts, whether you thought
anything occurred there that was fraudulent or dishonest or out of tlie way
there on that day. Now, I ask you whether at the time A. B. Hoyt led this
blind gentleman, Mr. Kimberly, up to the booth and came within the railing
after he had l)een in that voting place and voted on that day, whether you
thought that was a proper act on the part of Mr. Hoyt?
Mr. Maynard. I will object to that; It Is not proper redirect examination of
the witness, and it is a misstatement of what I asked him, as the record will
show, and it is incompetent and immaterial.
Mr. Adams. In what respect is it what you didn't ask him?
Mr. Maynard. I asked him whether he saw anything that appeared to him
(o be wrong In the canvass of the votes, and he testified, first, that he could not
104 CARNEY VS. SMITH.
swear to anything at all, and finally he said, as I remember the testimony, that
he didn't see anything or notice anything.
Q. (I^st question read.)— A. Why, I didn't think it was; I thought he was
out of his place, and if I could got hold of him I would have pulled him out,
but he got past me. •
Recross-examiuation by Mr. Maynabo:
Q. How far was he from you when you saw him go through the gate? —
A. He was right at the gate; I had hold of Mr. Klmberly trying to get Uim by;
it was a narrow gate and Mr. Hoyt slipped in ahead of him.
Q. I thought you said Mr. Hoyt had hold of his other side?— A. He led him
up to the gate, but there was no booth empty at that time and they had to
stand there a little while. Finally there was an empty booth and I opened the
gate and says, " Orin, you can come in now," at that he passed by on the other
side.
Q. Did he have hold of Mr. Klmberly? — ^A. When he went by; no, sir.
Q. Whom do you mean by "him" passing by? — A. I meant Mr. Hoyt on the
opposite side.
Q. You said he led him up to the second door? — A. I think it was the second
door; he stopped there and said he had agreed to see Mr. Kimberly through.
Q. Did you see Mr. Hoyt lead Mr. Kimberly up to the second booth? — ^A. I did.
Q. You had let go of Mr. Kimberly? — A. Good land, he was 10 feet from me.
Q. How far did you lead him up that aisle? — A. I passed him just through
the gate; I didn't go into the aisle at all.
Q. Mr. Hoyt led Mr. Kimberly to the second booth? — ^A. Yes, sir.
Q. You don't know what became of Mr. Hoyt after that time? — A. No, sir ;
he vanished.
Mr. Adams. You said Mr. Hoj't didii't come back through your gate? — A. No,
sir; he didn't pass me.
Wn^HS A. CASE, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified in behalf of the contestant as follows:
Direct examination by Mr. Adams :
Q. Mr. Casey, where do you reside? — A. In Cannel Township.
Q. In Eaton County, Mich.? — ^A. Yes. sir.
Q. How long have you lived there? — ^A. All my life.
Q. What is your age? — ^A. I am 51.
Q. What were your politics; what party, or with what i)arty, rather, were
you afl^liated — ^political party I mean — on the 5th day of November, 1912?—
A. The Republican Party.
Q. Were you or not interested in behalf of the Republican Party ticket up
to and including the completion of the election on the 5th day of November,
1912?— A. Yes, sir.
Q. Did you vote in the township of Carmel on the 5th day of November,
1912?— A. Yes, sir.
Q. What time in the day did you vote at that election place? — A. I couldn't
tell you exactly, some time before noon ; I couldn't give you the hour.
Q. You voted No. 16, didn't you?— A. I couldn't tell you the number.
Q. That is your name there. W. A. Case, on the list of voters?— A. Yes, sir.
Q. No. 16. Isn't it?— A. Yes. sir; I think so. I can't see very good without
my glasses.
Mr. Adams. There Is no question about that is there, Mr. Maynard?
Mr. Maynard. No, sir.
Mr. Adams. That he voUhI No. 16 at that election?
Mr. Maynard. That is what the book says.
Q. You voted in the forenoon of that day? — \. Yes, sir.
Q. About what hour? — A. Well, I couldn't give the hour; I suppose along
toward 9 o'clock; between 8 and 9 o'clock; I wouldn't swear to the hour ex-
actly ; I don't remember.
Q. Do you know who acted, at the time of your voting there, as inspectors
of that election? — A. I have attended so many elections I will get mixed up
on that; I think Hulburt Shaver.
Q. Was there a man named Griffin acting as insi)ector? — A. He was the
supervisor of that t«cvnship.
Q. Had you been around in thnt voting place that morning before you
voted?— A. I think I just stei)i)ed in and hung up my coat, then passed out
when I came in the morning.
CARNEY VS. SMITH. 105
Q. After you voted did you stay tbere in the voting place? — A. Not until
the votes commenced to be counted.
Q. When did they begin to count the votes there that day? — A I don't Itnow;
between two and three in the afternoon. I thinly.
Q. How long were you in there just before tliey commenced counting, al)out
2 or 3 o'clock that afternoon? — ^A. When they commenced counting I was there
all the time after that.
Q. How long did you stay there after they commence<l counting? — A. Until
Uie vote was counted.
Q. What time did they conclude the count? — A. I think somewhere about 11
o'clock that night — along about that time.
Q. When you voted did you ask anybody there how the vote stood? — A. I
asked several times the number of votes cast; that is all.
Q. When you voted? — ^A. No, sir; not when I voted, but during the daytime —
how many votes had been polled.
E. A. JOHNSON, recalled for further cross-examination, testified as follows:
Examined by Mr. Maynabd:
Q. Mr. Johnson, when you organized the l)oard in the morning — when the
board was organized in the morning there in Bellevue precinct — ^was the oath of
office administered to you orally and afterwards you signed theoathV — A. It was
to all of us as we stood there.
Q. You all held up your hands? — A. Yes, sir.
Q. And afterwards you signed the certificates? — A. Yes, sir.
Redirect examination by Mr, Adams :
Mr. Adams. I move to strike that out on the ground that it is iucomi)eteut,
irrelevant, and immaterial and not the best evidence.
Q, Who administered the oath to you? — A. I was trjing to think.
Q. Dan Hall?— A. I think so; I think it was Dan Hall.
Q. Hadn't Mr. Hall acted on that board before? — A. Yes, sir.
Q. Do you know whether anybody adminlsteretl the oath to Dan Hall that
day? — A. I couldn't tell you.
Q. You don't know of any oath being administered to Dan Hall that day, do
you? — A. No, sir.
Q. While you were there? — A. No, sir: I do not.
Q. Was there any oath aflniinistered by anybody to Dnn Hall before he began
to act on that board of election? — A. I think not.
RecroFS-examination of Mr. Maynard:
Q. Who was the other justice of the peace? — A. Mr. Rogers.
Q. Did he administer the oath to yon? — A. No, sir.
Q. He didn't to .inyone that you know of? — A. No, sir; he held up his hnnd
with the rest of us.
WILLIS A. CASE, recalled for further examination on the part of the con-
testant testified as follows:
*
Examined by Mr. Adams:
Q. Now, when they liegan counting there in the afternoon, Mr. Case, who
did the counting of the votes? — ^A. I was not in the house at that time, but
when the clerk came, in the first place, he took down the vote.
Q. Do you know who that was? — A. I think it was Mr. Clements, at that
time the challenger of the Democratic Party, rend the hallo's.
Q. He rend the ballots? — A. Yes, sir.
Q. He hsndled the ballots and read them? — A. He offered to read them and I
watched him do It.
Q. He read them out aloud? — A. So we could both hesir to the other table.
Q. Were you acting there? — A. I was ac ing as challenger for the Republican
Party.
Q. When they came to a ballot that had John M. C. Smith's nnme on it tliey
would call off. Smith for Congress? — A. Yes, sir.
Q. And the other candidates that were voted for on the ballot, they would be
called off aloud so you could all hear? — A. Yea, sir.
Q. Who else acted on that board while you were doing that counting before
tlie polls closed at 5 o'clock besides yourself and Mr. Clements?— A. Oortez
Cashing.
106 CABNBY V8. SMITH.
Q. Whnt did he do?— A. He read the votea
Q. I I hought you said one of the challengers rend the tickers. — A. He was a
challenger.
Q. He was the challenger for the Democratic Party? — A. Yes, sir; he vas
deputized to read the votes.
Q. Who deputized him? — ^A. I don*t know; I was not in there at that time.
Q. You don't know, then? — A. That is what they said*
Q. Of your own knowledge, you don't know whether he was deputised? — ^A. I
couldn't say as to that ; no, sir; I happened to be out doors at that time.
Q. Were you sworn to act as an inspector there of that elec ion? — A. I was
not an inspector of the election.
Q. Were you on that day, before you began to assist in counting those votes,
sworn by anybody? Did you take an oath there that you would perform the
duty of counting those ballots? — A. I didn't understand I had to.
Q. You were not sworn to act there in counting those ballots? — A. No, sir.
Q. Were you sworn as a challenger? — A. I was elected as a challenger.
Q. Were you sworn by anybody to act as a cliallenger at that election? — ^A.
Not at that election; ho, sir.
Q. Did you perform whatever duties you did perform in assisting in counting
those bnllots without taking any oath to act In tha' capacity? — A. I didn't
assist in counting the ballots — only watched them counting them.
Q. Did you rend any names off? — A. No. sir.
Q. Who read the nnnies off? — A. Cortez Cusbing, the DenK>cratic challenger.
Q. Did he read all of them that was read after you began to count at 2
or 3 o'clock until the time the polls were closed? — A. Yes, sir.
Q. Who took down nnd kept the talley sheet? — A. I think Mr. Clements did.
Q. Wns he sworn In to act upon that Iward? — A. I couldn't say whether he
was or not.
Q. W«8 Mr. Clements an official of that township? — A. He had been clerk
before; he was an ex-clerk. They said he was deputized; that Is all I know
about it.
Q. Do you know of any oath having been administered to Mr. Clements? —
Q. That day?— A. No, sir.
Q. If that wjis done, it w s done before you came In there? — A. Yes. sir.
Q. Who else, if anybody, besides those you have mentioned, asslste<l In count-
ing after you began the count there about 2 or 3 o'clock that day up to the time
the polls closed at 5 o'clock? — A. I don't remember of anyone.
Q. Those are the only ones you can recollect? — A. I think so: T wouldn't say
positively but what one of the clerks coninienceti to tally at the very last, hut I
will not pay as to that.
Q. (tordon Griffin was supervisor of that towMishi]) at the time of that elec-
tion?— A. Yes, sir.
Q. Who were the justices of the peace In that township at that time?- -A.
William Huber and Hurlburt Shaver, I think they were both justices of the
|)eace.
Q. Who was the clerk in that township on that day? — A. DeWltt Cole.
Q. D. C. Cole?— A. Yes, sir.
Q. Were either of the justices of tlie peace there that day? — A. They wei'e
there, the two justices of the peace were there that day; one w.is an instructor.
Q. Were they there in the morning wlien you voted? — A. Yes, sir.
Q. Mr. (iriffin, Mr. Shaver, and Mr. Huber. wiien you voted? — A. I will put
one qualification. Shaver I don't remember. Hul)er and (irifiin were iheiv; Mr.
Jones can tell whether Shaver wrs a justice of the peace or not. I can't haixlly
remember that.
Q, Were you there when the ballot box was o|)ened and the ballots taken
therefrom and the vote commenced to be counted at 2 or 3 o'clock? — ^A.
1 didn't know it until after I got In: I don't know whether they were sworn
or whether the ballots were emptied out; when I g«Jt there they were emptied
out.
Q. Where?— A. On the table.
Q. All of them emptied out of the box? — A. Yes, sir; and the 1h>x turned bot-
tom side up.
Q. Did they use that ballot box again for deiM)i>itlng ballots In or did tJiey
have another one? — A. They used the same ballot box.
Q. Did they seal it— lock it and seal it?— A. I couldn't tell you; I couldn't
swear to that; I didn't watch for those things.
GABKEY VS. SMITH. 107
Q. I suppose yon were right nenr the men when the countinK began at 2
or 3 o'clock in the afternoon, who were carrying on the election, receiving
tlie votes and passing out the ballots? — A. Just out of the way in the comer,
IwclE in the comer a little bit.
Q. How far from the board? — A. We were not more than— only Just room to
pass between them and the table where we were.
Q. Two or 3 feet?— A. I think so.
Q. As you were counting and the voters coming in and castiQg their ballots,
the votes for the different candidates were being called off by you gentlemen
who were counting, when the voter went up to register his ballot, the voter was
nrar enough to you gentlemen so that in cnlliug off the ballots he could hear
what was cjilled off? — A. I supjioFe so; Mr. (rrifHn stood maybe 3 feet from
the table, they pflssed the other side of him.
Q. Mr. Griffin was receiving the ballots? — A. Ycf, sir.
Q. Who pj^ssed out the ballots after you began counting? — A. I think Mr.
Hhaver; he was an inspector there that day.
Q. How close did Mr. Shaver stand in passing out the b:i11ots to the voters
and you gentlemen while you were conducting that count? — A. It must have
been better than 20 feet.
Q. All in one room? — A. Yes. sir; all in one room.
Q. Did you finish counting those ballots you startei to count at 2 or 3 o*cIock
that afternoon before the iiolls closed? — A. No, sir.
Q. How many ballots had you counted after you commenced at 2 or 3 o'clock
that afternoon up to the time the polls closed that day? — A. I couldn't say as to
that.
Q. How many ballots were there in the box when you emptied and began
counting at 2 or 3 o'clock that afternoon? — A. I couldn't give you the exact
number. I can approximately; I think there were about — I can't give that
either — about two-thirds of the vote in, I think.
Q. Were you there when the counting was condudert alK)nt 11 o'clock that
night? — A. Yes, sir.
Q. After the polls closed at 5 o'clock — or did they close at o o'clock that
day? — A. I think ft o'clock.
Q. After they closed, did you or not go ahead and assist in the count? — A. I
merely stood there watching the count.
Q. When the votes were all counted what was done with the ballots? — A.
They w^ere all put back in the boxea
Q. All in one box ? — A. No. sir ; I think some in the box ; I don't know what
they did with the whole of them; I was not watching that.
Q. Who kept the tally book in the afternoon when you commenced the count-
ing?— A. I think it was Mr. Cole ; I don't remember who the other clerk was —
Mr. Cole, I know, D. C Cole.
Q. He kept it in lead pencil?— A. I think not.
Q. Are you sure about that? — ^A. No, sir.
Q. I show you Exhibit 17, which is entitled " Tally sheet book of the general
election held November 5. 1912, Carmel Township, Eaton County." That shows
that the tally book was kept in lead pencil, was it not? — A. Yes. sir.
Q. And the figures carried out in lead pencil? — A. I was mistaken as to that
question. I thought it was.
Q. I am talking about the tally sheet. — A. That was kept in lead pencil.
Q. The tallies here were put down in lead pencil, then carried out in the final
columns, under straight votes and split volts, in i)encll. for Representative in
Congress, were they not, as shown by that book you are now looking at? — ^A.
Yes, sir ; I should judge so.
Q. They were? — A. I would call that pencil marks, all right enough.
Q. Did you know who kept Exhibit 17 that day? — A. I couldn't tell you.
Q. Who made the tally figures on that book I have Just called your attention
to? — A. I couldn't tell you who kept it.
Q. You saw them keeping that tally book there that day? — A. Do you mean
after the board commenceil to count or before?
Q. When they began at 2 or 3 o'clock. — A. I think that Mr. Clements did that
work.
Q, You sat there and saw them keeping these tally books? — A. Yes, sir.
Q. To the best of your recollection, Mr. Ca.se, were the ballots as called off
recorded- in this tally book in lead pencil when they began that count at 2 or 3
o'clock that afternoon? — A. From that book I should say it was a lead pencil ;
I don't have any other remembrance.
108 CARNEY VS. SMITH.
Q. Now Mr. Clemeuts was the only man who was keeping the tally sheet that
afternoon up to the time the polls closed? — A. I wouldn't say to the last that
the other clerks did not take hold of it.
Q. I mean up to 5 o'clock Mr. Clements was the only man? — ^A. It might
have been a short time before that, no votes were cast for an hour or so, and
it seems to me the other clerks did. but I couldn't say.
Q. Most of the time up to 5 o'clock did Mr. Clements keep the tally sheet? —
A. Yes, sir.
Q. He was the only man up to 5 o'clock that kept the tally sheet mostly? — ^A.
Yes, sir.
Q. Do you know what was done: if any other tally sheet book was kept
what was done with it? — ^A. No, sir.
Q. There was but one kept in the afternoon up to the time they closed the
polls — one tally sheet book? — A. There w^as but one tally up to the time the ixjlls
closed most of the time.
Q. But one kept — one book? — A. One book; it seems as though to me for a
time — for a while toward the last — that Mr. Huber did, but the books ought
to show for that: it seems to me he acted a part of the time — at the latter
part of the time? — both of them acting at that tlnje.
Q. He was acting as inspector? — A. Yes, sir; I think he took hold after a
time — after the tickets had nil been marked — but I would not be i)ositive about
that.
Q. You are not sure about that? — A. No, sir; but I think there were two for
a part of the time.
Q. I suppose people came along when you were counting and watched the
counting some? — A. Oh, they went right along through.
Q. Some of them stopped there? — A. I don't know.
Q. And looked on? — A. I don't know.
Q. You knew what the vote was thei-e as it was going along — how the thing
was running I supi)ose? — A. Do you mean when they commenced to count?
Q. Yes. A. Yes, sir; as near as I could remember in my mind.
Q. You could carry in your mind how many votes were being received for
John M, C. Smith and how many were received for Claude S. Caniey? — A. I
didn't keep any track in that way.
Q. You carried in your mind whether Smith was ahead or Carney? — ^A. My
interest was in one man as much as the other.
Q. You did that as far as the different candidates were concerned? — A. On
the straight tickets I could tell, that is all.
Q. You could see the tally book in front of you on the table that was being
kept? — A. It was just across from nie on the table.
Q. You could see what was on the book? — A. I didn't watch that.
Q. You could .see what was on the book? — A. I was watching the reading of
the ballots.
Q. You were keeping track of it to find out how the election was going? —
A. No. sir; it is always proper to have a watch kei)t: you can niMke a niis?tako
very easily and I was there if a ballot was wrong to challenge that ballot.
Cross-examination by Mr. Maynard:
Q. Had they counted any ballots when you took your place there to watch
the count in the afternoon? — A. They had not counted any.
Q. Who dirt that? — A. When I got in there Mr. Clements was there and
Cortez Cushing.
Q. Those wei-e the two men who took charge of the ballots? — A. Y'es, sir.
Q. Were the insjiectors there? — A. The full board was there.
Q. The full election board was present? — A. Was present watching the elec-
tion.
Q. Did you see them open this ballot box? — A. No, sir.
Q. When you went in did you see them emptying the ballot boxes? — A. Yes,
sir.
Q. Who was It? — A. The supervisor.
Q. Who was that?— A. Mr. Grifiiu.
Q. Who was present? — A. The board.
Q. Who else? — A. Whoever was outside In the hall ; I can't remember.
Q. Do you know whether there were many there or not? — A. I think there
was quite a good many there; quite a crowd.
Q. Did you see any of them at the same time you were counting standing next
to the railing? — A. There was lots of them standing along the railing.
CABNEY VS. SMITH. 109
Q. Where did this voting take place, this election? — A. In the town hall.
Q. Which side of the booths was the ballot box placed? — ^A. A little southwest
of the booths.
Q. Which way did the building face? — ^A. It faced the south.
Q. The building run north and south? — A. The building run north and south.
Q. The front door to the south? — ^A. Yes, sir.
Q. Which way did the railing run? — ^A. East and west
Q. Across the building? — A. Across the north end of the building. It was
liartitioned off a little less, probably, than one-quarter of the building.
Q. The front of the railing is open to the public? — A. Yes, sir.
Q. Which end of the railing was occupied? — A. The east.
Q. Which way did it face inside?— A. West.
Q. To the west end of the railing? — A. Yes, sir.
Q. Which way did the booths run? — ^A. East and west.
Q. How many did you have? — ^A. Four.
Q. Where was the inspector placed that delivered the ballots to the voters? —
A- To the east gate.
Q. Where did the voter go out on the other side of the booths? — A. He went
in cm the south side of the booths and came out on the north.
Q. Was there room at both ends of the booths to pass around the booths? — ^A.
Not at both ends. They were against the wall at the east end. You could go
into the booths and pass out to the north.
Q. Where did they deposit the ballots? — A. Southwest of the booths a little
bit.
Q. Then the inspectors both, the one who delivered the ballots and the one
who received the ballots, could see each other? — A. No, sir; the insjiector — the
one who gave out the ballots — was to the east side and the supervisor and clerk
to the west side, as near as could be.
Q. The booths run east and west? — A. Yes, sir.
Q. They both were a little in front of the booths? — A. Yes, sir.
Q. There was nothing between the inspectors, nothing to hinder their view of
each other? — A, No, sir.
Q. Where did the clerks sit; between them? — A. At the table Just about south
of the west end of the booths.
Q. They sat near the one who received the ballots? — ^A. Yes, sir. The box
was just west of the table, and the man who took the ballots was west of that.
Q. Where did the table sit that contained the ballots that those men were
counting? — A. On still west of where the supervisor sat, next to the wall. '
Q. Was it north of the supervisor or straight west? — ^A. Perhaps a little
north.
Q. It was in that corner, the northwest corner? — A. So as to be handy with
the bookcase.
Q. How many were there watching this count In the afternoon? — A. Three,
most of the time, I think.
Q. Who were they? — A. Mr. Clements, Mr. Gushing, and myself.
Q. Mr, Gushing is a Democrat? — A. Yes, sir; the Democratic challenger.
Q. He was appointed challenger on that occasion for the Democratic Party? —
A. Yes, sir.
Q. And you were for the Republican Party? — A. Yes, sir; I t(K)k the position
bec*ause they did not put in any challenger.
Q. You watched the reading of the ballots by Mr. Gushing? — A. Yes, sir.
Q. You say you did that for two purposes, and one was to see If there were
any ballots that were Illegally marked? — A. Yes, sir; that Is one thing I was
there for.
Q. You observed whether they were correctly read? — A. Yes, sir.
Q. Now. did Mr. (bushing read those ballots as they were delivered to him,
correctly?
Mr. Adams. I object to that as Incompetent, Irrelevant, and Immaterial.
A- Yes, sir; I think he did. If he didn't make any mistakes.
Q. Did you In all that afternoon observe a mistake that Mr. Gushing made In
reading those ballots when he was tallying? — A. No, sir.
Q. Are you acquainted with the big bulk of the voters who cast their ballots
there at that election? — A. A great many of them; some newcomers I am not
acquainted with.
Q. This board of election, how long have you known the members of that
board?— A. Well, it has been a good many years; almost since 1 can remember.
110 CABNEY VS. SMITH.
Q. Do you know what the reputation of Mr. Griffin is in tliat towuahip for
beinj; an honest, upright man?
Mr. Adams. I object to that as Incompetent, irrelevant, and immaterial, and
not a proi)er question.
Q. Have you the means of knowing what his reputation is in that community
as to being an honest, upright man of integrity?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, calling
for the conclusion of the witness and not calling for any fact, nor does it give
any moans of measuring what his means of knowledge are.
Q. Have you the means of knowing?
Mr. Adams. The same objection.
A. Only from living up there and being acquainted with him all his life.
Q. Are you acquainted In the community in which he resides? — ^A. Yes. sir.
Q. Did you ever hear him questioned as not being an honorable, upright
mnu and a man of integrity in that community?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and not
the proi)er way to show what counsel seeks to show by the question under any
rule of evidence.
A. I never heard a word against him.
Q. Is he one of the most prominent farmers and well-known men !u tliat
township?
Mr. Adams. Objected to ns lncomi)etent, irrelevant, and immaterial.
A. Yes, sir.
Q. Do you know William Hul)er? — A. Yes, sir.
Q. How long have you known him? — A. Just as long as I can rememl>er back.
Q. Where does he live; what township? — ^A. In Camiel.
Q. How long has he lived there? — A. He has been away some, but that has
been his h()nie for most of the time.
Q. Fur liow long? — A. Well, I don't know for that; it has been a good while;
I think I r: u remember him from a boy.
Q. Wl:at is his age now? — A. I don't think he Is quite as old as I am; I think
between 4r> antl 50.
Q. Do you know whether he has held any [)ositlous In that township? — A.
Yes, sir; he h»»8 l)een jnsstlce of the peace for a good many years: I know that.
Q. Have you the means of know^lng what his reputation — general reputa-
tion— Is for honesty and integrity and being an upright citizen*^
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial, not call-
ing for any fact and in violation or every rule of evidence applicable to such
question and a conclusion.
A. 1 have *he same moms I have of knowing the rest of them — by living In
the same township with them.
Q. Did you over hear his general reimtation assailed or called In question by
any citizen of the township?
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial.
A. No, sir.
Q. Are you acquainted with Hurlburt Shaver? — A. Yes. sir.
Q. How long have you known him? — A. | think he has been a boy in Carmel
the s«inie as I was.
Q. You have known him since his boyhood? — A. Yes, sir.
Q. What is his business? — A. He Is a farmer.
Q. Is Huber a farmer? — A. Y'es, sir.
Q. And Mr. Griffin is?— A. Yes, sir.
Q. Is Mr. Cole a farmer, too? — A. Yes, sir.
Q. How long has Mr. Shaver been a justice of the i)eace In that township? — A.
He has been several terms and has been clerk and treasurer there.
Q. Of the township?— A. Yes, sir.
Q. Have you the means of knowing what the general reputation of Hurlburt
Shaver is in that community for honesty. Integrity, and good citizenship?
Mr. Adams. Objected to as Incomix^tent irrelevant, and immaterial, calling
for the conclusion of the witness, not calling for any fact, and Is in violation
of every rule of evidence applicable to the subject matter inquired about.
A. The same as the rest ; I have known him ever since he was a boy.
Q. Did you ever hear any question about his honesty or integrity In that
community?
Mr. Adams. Objected to as Incomi)etent. irrelevant, and immaterial «nd
hearsay.
A. No, sir.
CABNBY VS. SMITH. Ill
Q. In wHteliiuf? this election did you obnerve nnythlng In the conduct of thnt
ejection which restricted the privilege of every honest voter to vote as he wiw
fit for the cnndidates on the tickets?
Mr. Adams. Objected to as incoui]ietent, irrelevant, and immaterial and
calling for the conclusion of the witness.
A. No. sir.
Q. So f 21 r as you observed, was that election an honest election.
Mr. Adams. Objected to as incompetent. Irrelevant and immaterial and calling
for the conchisiou of the witness as to what the law Is.
A. Yes. sir.
Q. In watchiiiii; that election and the count during the afternoon, were all the
votes which were cjist In thnt precinct for Claude S. Carney credited to hlnl? —
A. I think they were.
Q. Were any votes credited to John M. C. Smith which were not cast at that
election for h!m in that precinct? — A. I think not, sir. I didn't see auythlag
of th«it.
Q. Now. when Mr. Citshing was reading those ballots did he read all of the
ballots tor eitch candidate cast fbr hlni on the entire jiarty ticket of each
patty? — A. Yes, sir.
Q. Was that a large ballot?— A. A large ballo^
Q. Were there a good many candidates on the Republican ticket for Presiden-
tial electors? — ^A. Yes. sir.
Q. How many party tickets were there on that ballot?
Mr. Adams. Objected to as irrelevant and immaterial and not the l>est
evidence.
A. I think six: I will not be sure.
Q. Can you name them? — A, Republican, Democrat, Progressive, Socialist, and
Socialist Ijabor, if I remember right, and Prohibition.
Q. When a ballot was cast for the Republican ticket and was what you call
a "spilt" ticket, did Mr. Shaver read the entire list of names after the
electors? — ^A. Mr. Cushing?
Q. Yes. — A. After the electors: yes, sir.
Q. Each man that received a ballot clear down through?— A. Yes, sir.
Q. Do you think It would have been |>oRslble for any man to hear hlni rend
to carry in his mind how many votes each man on that long ticket was given? —
A. I think not.
Q. Mr. Cushing didn't make any difference when reading between John M. C.
Smith's name and Claude S.. Carney's name, to show that be had any choice
about either man? — ^A. Not a bit.
Q. Did he retid them In a perfectly honest, square manner as far as you
ob»er\*ed?
Mr. Adams. Objectei to as Incouiiieteut. irrelevant, and immnterlal, calling
for the conclusion of the witnc^ss and not for any fact. It la a que.^tlon for the
conrt to determine whether honest or not and not for this witness to give his
opinion.
A. Yea, sir.
Q. Did you hear any attempt by Mr. Cushing to emphasize any particular
candidate's name or give any advantage to any candidate whose name api)eare<1
on any one of those ballots that day?
Mr. Adams. Objected to as incomiH»tent, Irrelevant, and immnterlla, and call-
ing for the conclusion of the witness.
A. No, sir.
Redirect examination by Mr. Adams :
Q. Where did Mr. Cushing stand; how far from you when he read the
ballots? — ^A. I stood right back of him, looked over his shoulder.
Q. All the time while reading? — A. Yes, sir.
Q. You stood back of Mr. Cushing? — A. Yes, sir.
Q. You stated that all the votes that were cast for any candidate on any of
those tickets were correctly counted for the candidates for whom the votes were
caaft that day. did you? — ^A. Yes. sir.
Q. How do you know whether the man that was keeping the tally sheet
reported it correctly or not? — ^A. I stood there reading them over.
Q. How do you know whether he registered them correctly as they were called
off or whether he did not?
Mr. Maynard. I object to this manner of cross-examining their own witness;
there is nothing to show that he is a hostile witness, and we object to the
112 CARNEY VS. SMITH.
manner of reexamination taking the form of a cross-examination. And we have
another objection I wish to make. It wiil appear from the record that every
witness that is placed upon the stand is examined on direct examination, and
when cross-examined the attorney immediately takes tbe witness and proceeds
on matters which he should have exhausted him on in his direct examination^
violating all rules of the Federal courts, that he should exhaust the witness
before he leaves him.
Mr. Adams. I suppose you know that that rule doesn't apply to any new
matter brought out.
Mr. Maynabd. This way of examining the witness has continued from the be-
ginning; he called the witness and went into the examination of the count and
what he did and the whole thing on his direct examination, and now after he
has heard the cross-examination, he commenced immediately to examine him
upon that which he should have fully gone Into in the first place.
(Last question read.)
A. I couldn't tell you; I couldn't watch him.
Q. You simply watched the ballot as Mr. Gushing read it? — A, Yes, rfr.
Q. Whether that tally book correctly shows the votes as they were called off
by Mr. Gushing and put down on the tally book you don't know? — A. Only he
kept count of them all the time, and when he came to five he counted five.
Q. Mr. Gushing kept the count?— A. No, sir; the tally clerk.
Q. Mr. Gushing kept calling them off?— A. Yes, sir.
Q. Whether the tally clerk put them dow^u on the book correctly. Just as
they were called off, you don't know, do you? — ^A. I couldn't tell you that;
nobody can tell that; you can't tell that at any election.
Mr. Adams. I move that what they could do at any election is a conclusion
of the w^itness and is incompetent and irrelevant and should go out.
Q. I understood you to say on your cross-examination you were not ap-
pointed a challenger by any i)olitical party? — ^A. I am the challenger of the
township committee.
Q. You were chairman of the Republican township committee at the time
of that election? — A. Yes, sir.
Q. Did you appoint yourself? — ^A. Yes, sir.
Q. Did you hand in any certificate^ to the board that you had ap|3ointed your-
self as challenger in that election? — A. No, sir.
Q. You didn't do that? — A. No, sir; 1 didn't see anyone hand any in.
Q. I ask you whether you did. Did you personally on that election day, to
the election board, hand them a ceitifieate that yon had appointed yourself to
act as challenger for the Democratic Party at that election at that voting
place? — A. No, sir.
Q. On that day?— A. No, sir.
Q. You didn't do that?— A. No, sir.
Q. So that you went in there self-appoint e<l to act as challenger at that
election; is that true? — A. That is true.
Q. l"ou had been interested in the candidacy of John M. G. Smith for Gon-
gress prior to that election day? — ^A. Nothing more than any other man.
Q. You had been interested prior to that election day on the 5th day of
November, 1912. on behalf of John M. G. Smith, Representative for Gongress,
on that ticket that was being voted at that election on that day? — ^A. I ex-
plained my position, no more than anyone else.
Q. You had been interested in his behalf and in his election? — A. No more
than anyone else.
Q. You had been interested in his behalf and in his election? — A. The whole
ticket.
Q. And with the whole ticket for him? — A. Yes, sir.
Q. Like everybody else on the Republican ticket? — A. That was my official
place.
Q. How close was the voter to you when he handed in his vote to be voted
that day, after he had marked it, to the booth? — A. I couldn't say exactly to
that; it might have been 5 or 6 feet.
Q. When he received the ballot from the election board and took it to the
booth to mark, how far was the voter from you when he received that ballot
and took it to the booth? — A. I should think in the neighborhood of 20 feet
Q. The only member of that election board who assisted. If anyone, on that
day, aside from Mr. Gushing and Mr. Glements, wtis Mr. Huber, before 5
o'clock?— A. I think so.
Q. He was- the only one who assisted in counting those votes after they com-
menced about 2 or 3 o'clock that day up to 5 o'clock on that day when the polls
CABNEY VS. SMITH. 113
closed, it any of Uie inapectora assMad beaMkas Mr. Cnahlng?^A. I think Mr.
Hvber watched that vote a great deal of the time; I think he watched it most
of the time.
Q. He was the only <»e of the election inspectors beaidea Mr. Cashing who
did do that Qp to 5 o'clock after yon commenced to oonnt? — ^A. I conldn't say
poeitiTely, as he worked on tiiat nntil abont 5 o'clock or half past 4 o'clock.
Q. He is the only <me yon have any recollection of T — ^A. Yes, sir ; I couldn't
mmtion any other man.
Q. Up to the time they got through counting, did any of the other tDSpecterR
recount those ballots that you gentlemen had counted up to 5 o'clock?-~A. I
couldn't say.
Q. You were there? — ^A. I couldn't nay whether they were recounted or not
Q. Yoa were there until the count was completed? — A. Yes, air; the count
was going on that night ; I was simply watching the new tickets that were cast
after 2 o'clock.
Q. Tkfm yoQ don't know whether all the bHllots that were voted for any can-
didate w^e correctly counted or not? — A. I don't know anything about the tally
Q. If you don't know wheth^ any of thoae ballots you counted from 2 o'clock
to 5 o*clock were again recounted aftw the board got through with the election,
you don't know whether all that were cast there by the voters were correctly
counted tor the candidates for whom they were voted, do you? — ^A. I don't know
what the tally derks did at all.
Q. Is that the only answer you can make to the question? — A. Yes, sir; that
la all.
Q. Was there more than one man reading the ballots after 6 o'clock? — A. No,
sir ; not the tickets.
Q. As far as your observation went or your recollection now goes, it is a fbct.
is It not, that when 5 o'clock came the ballots that you had counted from 2
o'clock to 5 o'clock that day were not again recounted by those members of that
board who had not participated in the count of those ballots up to 5 o'clock of
that day? — ^A. I couldn't say whether they were or not.
Q. You didn't see it done? — ^A. I didn*t see it done; that is the reason I can't
swear to it
Q. Mr. CSementa was a Republican, was he? — ^A. Yes, sir.
Q. And had been for some time? — A. Yes, sir.
Q. Mr. Huber had been a Republican for a great many years? — A. Yes, sir.
Q. And Mr. Gushing had been a Republican for a great many yenrs? —
A. Yes, air.
Q. And Mr. Griffin had been a BepuMican for a great many years?- -
A. Yea, sir.
Q. And Mr. Shaver had been a Republican for a great many years? — ^A.
Tea, sir.
Q. They were pvstty strong local RepubMoana, and alwaya had beaa?—
A. Why, as tktey uaoally nm, yes, sir; I guess they always split their ticketH
sometimes, but they were Republicana
Q. Had Mr. Coirihlng been acting on that board on that day in any capacity'
tiMt you observed b^ore you commenced counting those ballots in the after-
noon?— ^A. No, sir; he was Just township clerk the year before.
Q. So when they began thia count about 2 or 3 o'clock that dny, he was the
man to assist?— A I umnjuw so; he was in there; I didn't see him called in.
(Whereupon a receas was taken until 1 o'clock p. m.)
WIIJJS A. CASB. recalled, testified further as follows:
Cro8»«xamination by Mr. Maynabd:
Q. Which one of the board initialed the ballots?— A. Mr. Huber.
Q. When he was not engaged in Initialing the ballota, was he watching tke
count during the afternoon? — ^A. Yes, sir; most of the time.
Q. W^re you there wheaa. the board organized In the morning on the 5th of
November last?— A. I waa not
Redirect examination by Mr. Adams :
3. Were you subpoenaed as a witness? — A. Yes. sir,
. By whom?— A. By Mr. Oimey.
Q. Personally ?~-A By the aheritf.
286—18 8
114 CARNEY VS. SMITH.
Q. How mtmy miles do you live from (Charlotte? — A. About four and a hnlf.
Q. Did the sheriff pjiy you your fees? — A. Yes, sir; $1.35.
FRANK FORI), being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified in behalf of the coufestant as follows:
Direct examination by Mr. Adamb:
Q. Mr. Ford, do you hold any ofiiclal imsition in the county of Eaton, State
of Michigan?— A. I do.
Q. What?— A. County clerk.
Q. How long have you been county clerk?— A. Since the 1st day of Jan-
iiary, 1913.
Q As such clerk do you have the custody and possession of the election
lecords showing the officers of the various townships and when elected in the
county of Ea'on? — A. I do.
Q. I show you a book entitled " Election Record 21, Township of Eaton '* on
the back of that record and nsk you whether that record is one of the records
in your possession now as the county clerk of the county of Eaton, State of
Mlchfgan?— A. It is.
Q. Does that record or not show the different township officers elected at tlie
April election In 1912?— A. It should.
Q. That is what It purports to show? — A. Yes, sir.
Q. The township elections in the Stnte of Michigan are holden on the first
Monday of April In each year? — A. They are.
Q. The township officers — supervisors. Justices of the peace, and township
<*lerks — are elected once a year only and at that election which, by law, is fixed
to be held in April of each year?
Mr. Maynard. I object to that as incompetent and immaterial and not the
t>est evidence.
Mr. Adams. Don't you concede that as a fact?
Mr. Frankhai'sfr. I don't know of any law requiring the county clerk to
"koep such a book.
Witness. I don't think there Is any law requiring it
Q. Mr. Ford, have you In your custody as county clerk of the county of
Eaton the election returns from the townships showing who was elected as town-
ship officers at the April, 1912, election in the respective townships? — ^A. I think
I have: 1 wouldn't state positively.
Q. Will you li^ake a search in your office and find, if you can, all the returns
from the county of En ton of the election held in April, 1912? — A. The reconl
of 1911 wouldn't show^ all the Justices of the peace; they are elected every four
^^enrs.
Mr. Maynard. We will consent that you may read from that book who the
supervisors, Justices of the pence, and township clerks of the respective town-
ships In the county as they appear from that book, and we will make no ques-
tion t.bout the method of proof, but will object to the materinllty of the testi-
inony.
Mr. Adams. Thnt testimony may be given from this record that has been
referred to with like effect as if the elec!ion returns themselves were here and
"were offered In evidence.
Mr. Maynard. Yes. sir; we do that to shorten the record.
Q. With the concession made by counsel for the contestee, will you please to
toll me and read from that record, beginning with the township of Bellevue —
1h}it Is the flrs*^ one in the record I think — who was elected as supervisor in the
township of Bellevue at the April, 1912. election?— A. H. M. Weed.
Q. Who was elected as clerk In thnt township? — A. Chnrles A. Pendle.
Q. Who was elected as Justice of the pence? — A. W. H. Gayton.
Q. Who were the Justices of the peace, as shown by this record, in the town-
-ship of Bellevue at the time of the November 5, 1912. general election tha*^ was
lield In this Stnte of that township?— A. As far as this record shows, D. K Hall
:and M. D. Rogers.
Q. Take the township of Benton and give me the information as to those
officers I have Just Inquired about.
Mr. Frankhavskr. I would suggest that the witness make a list of those
township officers and put it In evidence.
Mr. Adams. Thnt will be all right
Referring to Exhibit IS. one of the poll bcmks of the general election held
on November 5, 1912, in the first ward of the city of Eaton Rapids, county of
CABNEV VS. SMITH. 115
^ton, on page 2, under the heading as follows : ** Oaths of inspectors of elec-
tion," is the following : . .
"State of Michigan, County of Eaton, ss: .' • '
** I do solemnly swear that I will siipiwrt the Ooustitutlou of the l^nit^^d States
and the constitution of thin State, aud that I will faithfully discharge the
duties of the office of inspector of this election, held on Tuesday, the 5th day of
November, 1912. according to the best of my ability.
" Fred Rohbbach.
««
Taken, subscribed, and sworn to before me the 6th day of Novemb^, 1912.
"H. S. DeGolia, City Clerkr
Mr. Maynard. We object to It as incomi)etent and irrelevant and not covered
by anything in the notice of contest.
*• State of Michigan, County of Eaton, ss:
" I do solemnly swear that I will support the Ck>nstltution of the Uni*^ed States
and the constitution of this State, and that I will faithfully discharge the duties
of the office of inspector of this election, held on Tuesday, the 5th day of Novem-
ber, 1912, according to the best of my ability.
"J. J. Holmes.
" Taken, subscribed and sworn to before me the 5th day of November, 1912.
•*H. S. DeGoua, City Clerkr
Mr. Maynard. The same objection.
Mr. Adams. I desire to have the record show that those are the ouly two
certificates showing that any inspecrtors in that voting precinct were sworn to
act as inspectors in that election in that voting precinct the 5th day of Novem-
ber. 1912.
Mr. Maynabd. We object to that as incompetent and Immaterial. There is
nothing to warrant it in the notice of contest.
Mr. Adams. In the same exhibit under the heading " Oaths to clerks of elec*
tlon," on page 3, contains two separate cerliflcates showing that Henry A.
Rogers and Silas Godfrey took the oath to act in the office of clerks of the
election held Tuesday, the 5th day of November, 1912, and each of said clerks,
as appears by this exhibit, were sworn before H. S. DeGolia, city clerk.
Mr. Maynard. We object to that as incompetent and inunaterial ami not
raised by the notice of contest
Mr. Adams. I offer in evidence from this same exhibit the following:
" State of Michigan, County of Eaton, ss:
" CERTIFICATE OF INSPECTORS.
•* We do hereby certify that the foregoing \)o\\ list has been carefully compared
with the duplicate poll list as required by law, and that all mistakes found in
fkuch poll lists have been duly corrected by us and that' both sttid iJoU lists are
now correct and agree with each other.
"In witness whereof we have hereunto set our hands at the fir^t ward, city
of Eaton Rapids, said county and State, this 5th day of November. 1912.
"Henbt a. Rogers,
"Silas Godfrey,
"J. J. Holmes,
" Fred Rohrbach,
** Inspectors of the General Election, Held
on Tuesday, the 5th day of November, 1912.
Mr. Maynard. The same objection.
Mr. Adams. This exhibit I juj=t read from I desire to have the re(?ord show is
contained In an enveloi)e which is addressed " County Clerk, Charlotte, Eaton
CJounty, Michigan."
Mr. Maynard. The same objection.
Mr. Adams. I read into the record from the tally sheet b(K)k of the general
election held November 5. 1912, township of Roxand, county of Eaton. Michi-
gan, and desire to have the record show that on pages 12 and 13 of this tally
sheet book, opposite "Representatives in Congress," there are no tallies what-
ever contained in this book, showing that the tally clerks did not enter upon this
tally sheet book, Exhibit 19, any list of the votes as called off of the ballots
116 CARNEY VS. SMITH.
tbat were supposedly counted, and that under the head " Total straight votes,"
opposite the naiue of John M. C. Smith, candidate for Representative in Con-
gress, appears in figures 101. Under tlie head of ** Total split votes/* opposite
the name of John M. C. Smith, Representative in Congress* appears in figures
68. Under the head " Total votes received," opposite the name of John M. 0.
Smith, Representative in Congress, appear the figures 169. Opposite the name
of Claude S. Carney, for Reiw^sentative in Congress, under the head "Total
straight votes," appears the figures 37. Under the head "Total ^Ht votes,"
opposite the name Claude S. Carney, Representative in Congress, appear the
figures 24. Under the bead "Total votes received," opposite the name of
Claude 8. Carney, for Representative in Congress, appear the figures 61.
I also desire to have the record show that this tally sheet book, Exhibit 19,
does not show that there was any tally kept of this poll book of any of the
votes, whether straight or split, for Claude 8. Carney.
I am now reading from page 2 of Exhibit 20, under the head of " Oaths of
the inspectors of election." This exhibit shows that each of the following-nnmed
persons, George E. Potter, Ed. Davis, Abraham St Inkle, and Burton J. Pumfrey
vlgned the following certificate:
" State of Michigan, County of Eatot^, ««:
" I do solemnly swear that I will support the Constitution of the United States
and the constitution of this State, and that I will faithfully discharge the duties
of the office of insr)ector of this election, held on Tuesday, the 5th day of Novem-
ber, 1912, according to the best of my ability."
Each one of said persons were sworn by Ix)yal W. Davis. There Is no show-
ing on the record in what capacity L. W. Davis administered the oaths.
The record also shows, on page 3, under the heading " Oaths to clerks of elec-
tion," that Robert D. Jackson and H. A. Williams signed the certificate, showing
that they would discharge the duties of the office of election clerks at that elec-
tion on November 6. 1^12, according to the best of their ability. En eh of said
clerks, thjs record shows, were sworn before I^yal W. Davis, but there Is no
showing on the record in what capacity Tx)yal W. Davis administered the oath
to those two clei'ks. The certificate of the inspectors at the conclusion of this
Exhibit 20 is as follows:
*$
it
Statk of Michigan, Covntff of Eatrm, 8g:
We do hereby certify that the foregoing i)oll list has been carefully com-
pared by us with the duplicate poll list, as required by law, and that all mistakes
found in such poll lists ha^-e been duly corrected by us, and that both said poll
lists are now correct and agree with each other.
" In witness whereof we have hereunto set our hands at Hoytville, Grange
Hall, said county and State, on the 5th day of November, 1912.
•' OroRCE E. Potter,
" Burton J. Pumfrky,
''Abram Sttnkui,
" Ed Davis,
" Inspectors of the general eZectiofi
" Held Tuesday, the 5th day of Jfovember, 1912.
Mr. Adams. I read into the record from the statement book, " General elec-
tion. Exhibit 21, held Tuesday, November 5, 1912. at Roxand, Eaton County,
Michigan," which contains a certificate showing that this exhibit contains a
correct statement of the votes given In the township of Roxand, county of Eaton,
at the general election held Tuesday, November 5. 1912. It Is signed by George
E. Potter. Burton J. Pumfrey, Kd Davis, and Abraham Stinkle, inspectors of
election. T also offer in evidence page 2 of Exhibit 22, which exhibit Is en-
titled ** Poll book at the general election held November 5, 1912. township of
Windsor, Eaton County. Michigan," showing that there Is no certificate or oaths
In this exhibit or In any other exhibit, or In any other record rather, of the
election returns at that election in any of the files of tliese election returns In
the (»fflfe of the county clerk of Eaton County, showing that any Inspector was
Hhown as such to occupy or fill the position of Inspector at that election as shown
by this exhibit, as required by law.
Mr. Franichauser. It could not by any possibility show any such a thing: I
presume the page shows for Itself.
Mr. Adams. I offer It In evidence.
Mir. Maynard. We object to it as Incompetent and immaterial.
CARNEY VS. SMITH. 117
Mr. Adams. There is uo certificate iu this exhibit showing that auy ins])ector
was sworn or subscribed any oath to act as inspector of thnt election in that
township.
Mr. Fbankhauseb. I suppose the book will spealc for itself, but I object to
that method of proving it.
Mr. Adams. I will read from i>age 2 under the heading "Oaths to inspectors
of election."
Mr. Matnabd. We object to it as iucomeptent and immaterial ; there Is no
law requiring the oath to be subscribed and placed on file.
Mr. Adams. On page 2, as appears from the exhibit, there are four blank cer-
tificates, each one of which rends as follows :
4<
State of Michigan, County of 88:
I do solemnly swear that I will support the (Constitution of the United
States and the constitution of this State, and that I will faitlifully discharge
the duties of the ofllce of inspector of this election held on day of
A. D. 191 — , according to the best of my ability.
" Taken, subscribed, and sworn to before me this — day. of A. D. 101 — /•
Each one of said certificates appear in like manner u[>on this exhibit ; there
are no signatures appearing and the blanks are not filled in.
Q. Now. Mr. Ford, have you so you can tell us from the ret»ordH from your
office who the supervisors were, the township clerks or clerk, rather, and the
justices of the peace elected at the April. 1912. election — townshiim elections —
In the several townships In the County of Eaton? — ^A. Yes. air; I have them as
far as the record shows. Do you want more than the justice of the peace
elected at that election?
Q. Yes; can you show them now? — A. Yes; I can. Bellevue Township, H.
M. Weed, supervisor; clerk, C. A. Bentley; justice of the peace, C. H. Gayton.
Benton Township, supervisor. Dwlght Backus; clerk. Fen ton F. Dwyer; justice
of the peace, Wesley B. Warrior. Brookfleld, sui)ervisor. Milo Yoxhlmer;
clerk, F. C. Kuck; justice of the iieace, Edwin A. Hnhn. Carmel Township,
supervisor, Gordon Grifl^n; clerk, D. O. Cole; justice of the i)eace. Oscar M.
Thornton. Chester Township, supervisor. Charles W. Stnhl ; William .T. Fenther-
mann; justice of the peace, Frank Maxim. Delta Township, supervisor. Car!
Chambly; clerk, William M. S. Ryant; justice of the peace, Luther L. Plumb.
Eaton Township, supervisor, E. L. Stewart ; clerk, E. E. Smith ; justice of the
peace, Harrison Allen. Eaton Rapids Township, 8ui)ervisor, Seymour A.
Rogers; clerk, Levi J. Winn; justice of the peace, George H. liOng. Hamlin
Township, supervisor, Andl Holmes: clerk, Samuel B. Keefe; justice of the
peace (none qualified). Kalamo Town-^hip, supervisor, S. I. Mnpes; clerk, A.
P. Swift; justice of the peace (none qualified). Oneida Township, suiiervlsor.
James H. Backus; clerk, John D. Jones; justice of the i>eace, John B. Strange.
Koxand Tovrashlp, supervisor, George E. Potter; clerk — Henry L. Stearns was
clerk, and R. B. Jackson was elected at the time of the general election: justice
of the peace, none qualified. Sunfield Township, sui)erviHor, John H. Palmer;
clerk, H. H. Mapes; justice of the i)eace, none qualified. Vennontville Town-
ahlp, snpen-lsor, John C. Downey; clerk, Arthur L. Bnughman; justice of the
peace, Ernest G. Pray. Walton Township, supervisor, Simon 1). Bryan ; clerk,
William Green, jr.; no justice of the peace. Windsor Township, supervisor.
William J. Bateman; clerk, Ray Bamett; justice of the peace, Daniel Bate-
nan. That Is all the townships.
Q. Now, go through tliose townships agnlii, Mr. Ford, and state the names of
the justices of the i»ence, the two justices in each townshii) whow term of
office first expired, dating from the 5th day of November, 1912.— A. The first
Justice of the peace term expired July 4, 1913, and July 4, 1914. Bellevue
Township, Daniel L. Hall, 1913; M. D. Rogers, 1914. Benton Township, J.
Woodard, 1913; B. A. Murray, 1914. Brookfield Township, Frank E. Dewey,
1913; R. Mitchell, 1914. Carmel Township, Wm. Huber, 1913; Frank Hnlsey.
1914. Chester Township. Frank Arnold, 1913; G. E. Field, 1914. Delta Town-
ship, Wlllett Ladue, 1914. Eaton Township, Chas lIoflTuer, 1913; Geo. W.
Ubadie, 1914. Eaton Itaplds Tow^nship, E. A. Smith. 1013; C:ha8. H. Wilbur,
1914. Hamlin Township, Samuel Hicks, 1913; Wm. J. Tucker, 1?)14. Kalamo
Township, Geo. McConnell, 1913; Arthur Scrohers, 1914. Oneida Township.
Clws. Bowen, 1913; Chas. D. Fuller, 1914. Roxaud Township, Daniel DavUs,
1913: Burton Pumfrey, 1914, Sunfield Township. Frank H. Bacon, 1913;
118 CARNEY VS. SMITH.
Dennis Hager, 1914. Vernioutvllle Township. Wm. Benedict, 1913; Frank E.
Hay, 1914. Walton Township, Albert C. Smith. 1913; Ghas. O. Bugbee, 1914.
Windsor Township, Snmnel Vanderbeck, 1913; Frank L. Smith, 1914.
Q. Have you in your office. Mr. Ford, as a part of the files of the office of the
county clerk of the county of Eiiton, any instrument puri>orting to be the resig-
nation by Ernest G. Prny of the office of county clerk V — A. I have; yea, sir.
Q. The Instrument you now have in your hand is the paper that you Just re-
ferred to?— A. It is.
Mr. Adams. I will offer tlie same and will read it in evidence.
Mr. MAYNARD..We object to It as incompetent and immaterial.
** State of Michigan,
*' County of Eaton, as:
" I hereby resign my office of county clerk and register In chancery and alL
the emoluments thereof, this resignation to take effect November 4, A. D. 1912.
" To the Hon. Clkment Smith.
" Circuit Judge, the 5th Judicial Circuit.
*' Dated at Charlotte this 30th day of October. A. I). 1912.
" Ernest (J. Pray."
Mr. ADA.MS. On the back of the pai)er prixluced by the witness appears the
following :
"Fifth judicial circuit. In re resignation of Ernest G. Pray as county clerk.
Accepted and pliiced on flie this 2i\ day of Novenil>er, 1912.
" Clement Smith, Circuit Judge.
(649)
** State of Michigan,
" County of Eaton, sb:
** Filed November 4, 1912.
** Ernkst G. Pray, County Clcrkr
Q. That Is all there is on the jjai^er, isn't It, on either side of It? — A. I
think so.
Q. Have you found In the files of the office of county clerk of this county
of Eaton any appointment by the circuit judge of this county of any individual
to fill the vacancy created by the resignation of Mr. Pray, Just rend? — A. I
have.
Q. Is this the i'ai>er you produce? — A. It is.
Mr. Adams. I offer it in evidence.
Mr. Maynard. We object to It as Incompetent and innuaterial.
Mr. Adams. This being a part of the files in the county clerk's office 1 will
not have it marked, but will read the same in full.
" State of Michigan, County of Katon, tts:
** Whereas a vacancy exists In the office of county clerk and register in chan-
cery in the county of Eaton; now, therefore, reposing special confidence in the
ability and fitness of John C. Nichols to fill such v»K?ancy, I do hereby appoint
the said John C. Nichols county clerk and register in chancer^' for the county
of Eaton for the time being.
" Clement Smith.
" Circuit Judge.
" Dated Novoml)er 4. 1912."
On the back of the pai)er :
** State of Michigan, County of Eaton, ftn:
"Filed November 4. 1912.
" E. M. Lohr,
•• Deputy County Clerkr
(049)
Q. Have you exaniineil the Journal procet^ilngs of the circuit court for Novem-
ber 4, 1912, to see whetlier any oixler was entered in the Journal of the court
proceedings of that day api)oInting John C. Nichols to fill this vacancy in the
office of county clerk in this county of Eaton? — A. I have not.
Q. Have you examined the files In your office to ascertain whether John C.
Nichols, the person mentioned In this nomination Just read, did or did not file
CARNEY VS. SMITH. 119
.-» bond as county clerk and register in chancery of the county of Eaton after
this puriwrted appointment? — A. I hiue not specially for that purpose.
Q. Will you please examine the files and records in your office and find, if
you can, if any bond was filed by John C. Nichols as county clerk and register
in chancery after the date of this nomination by Clement Smith, and also pro-
duce the journal showing the proceedings of the circuit court of Katon County
on the 4th day of Noveml>er, 1912?
Mr. Maynabd. We object to it as Incompetent and immaterial, and not covered
by the notice of contest.
Mr. Adams. Exhibit 22 shows — which is the poll b(K)k — that the certificate of
iuspectors to be signed by W^. J. Rateman, Ray Burnett. S. G. Vanderbeck. and
F. Ti. Smith, inspectors of the genenil election at the genenU election held ou
Tuesday, the 5th day of .November, 1912.
Exhibit No. 23 — statement book of the general election held November 5, 1912.
in the township of Windsor,* county of Katon-^shows that tlie same is signed
by W. J. Batemau. Ray Burnett. S. O. Vanderl)eck, and F. L. Smith, iiisi)ectorsi
of election and is dated November 0, 1912.
Mr. Maynabd. We object to that as incompetent and immaterial, and not cov-
ered by the notice of contest: and the further objection that the contestee is not
notified by the pleadings by the opposite side what the object of this testimony is^
Mr. Adams. I didn't know it was necessary to tell what the object was. All
the election returns that haAe been referred to to-day have been returns that
were in «ive]opes addressed to the county clerk, Charlotte, Eaton County, ^licb.
Mr. Maynard. 1 want to make this objection to the statements of counsel.
The contestant has had the oijportunlty for some months of hauilllng these re-
turns and has done so a good many times, and I don't know whether they an^
In the original envelopes or what changes have been nnule. They have beeit
open to the inspection of the public. The returns are in duplicate, and have-
been handled and have been mixed here by those who are handling them; so
to separate them out and tell which went to the county clerk and which went
to the board of county canvassers is difficult to tell. We don't know of any-
thing to show that the statements of the attorney for the contestant is founde^t
upon the fact.
Mr. Adams. I^et the record show that these envelopes containing all tliese^
returns were produced by the county clerk and are right here within four feet
of counsel at thef present time, and have been while they have been referred to
by counsel for the contestant. Some other returns are in envelopes addressed
to the board of county canvassers, care of the probate judge or register of pro-
bate. Other returns or parts of the returns are in envelo^ies addressed to the-
county clerk, Charlotte, Etiton County, Mich.
Exhibit No. 24 Is in the presence of counsel and within 4 feet of him and has^
been removed from an envelope addressed to the board of county canvassers.
care of the prolmte judge or register of probate, Charlotte, Eaton County, Mich.
Exhibit 24 is a statement book of the general election held on Tuesday, the
5th day of November, 1912, in the township of Sunfield, Eaton County; has a
blank form of certificate on the sixteenth page of it. It is not signed at all, as
shown by the exhibit. 1 now show it to counsel to say whether I am stating it
correctly. Nor is it signed by any one or ones of the Inspectors of election, nor
is tlie blank form filled out at all. If I am not correct in this statement, I ask
counsel now to state upon the record the Incorrectness of my statement in this
regard. I now hand Exhibit 24 to Mr. Maynard, one of the counsel for the-
(Dntestee.
Mr. Maynard. The objection I make to the record as produced Is that they
were retumetl in envelopes addressed to the county clerk. I am not preparetl
to admit that. I don't see how he can tell or I can tell that that Is true. We-
find them there now.
Mr. Adams. I call attention to Exhibit 3, which is the statement book of the
general election held on the 5th day of November, 1912, In the township of Sun-
field, County of Eaton, which 1 have just taken from an envelope produced by
the county clerk of Eaton County, addressed to the county clerk, Charlotte.
County of Eaton, Mich. The certificate on the sixteenth page of Exhibit 3 is
as follows :
"State of Michigan, County of Eaton, 88:
"We hereby certify that the foregoing js a correct statement of the votes
Kiven in the township of Sunfield, County of Eaton, State of Michigan, at the
general election held on Tuesday, November 5, 1912.
120 GABKBT VS. SMITH.
" In witness whereof we have hereunto set our hands at the township of
Suiifield, hi ttiid county and State, this 5th day of November, A. D. 1912.
"J. H. Palmeb,
" Frank S. Bacon,
'* Dennis A. Hageb,
** Inspectors of Eleciion."
Mr. Adams. I now hand this Exhibit 3 to connsel for the coiitMtee to say
whether I have read it correctly into the record or not.
Mr. Maynard. I object to it as iucompetent and Inmiaterial.
Q. Have you before yon, Mr. Ford, the record of the proceedings of the circuit
c*onrt of Eaton County, ahowtui? the proceedings of that court on the 4th day of
November, 1912V — ^A. Yes, sir; I have the Journal.
Mr. Matnabo. Objected to as incompetent and immaterial.
Q. Does the journal of the oiri'uit court of Eaton County show the proceedings
of that court held on the 4th day of November, 1912 — A. I ha\'e not examined
it to see.
Q. Will you please tuni to it? I call your atteution now to a book which is
mtirlked on the baclc "Circuit Court Journal I, Eaton County." Do you flnil on
that record any entry of any proceedings of the circuit court of Baton County
for the 4th day of November, 1912? — A. I do not
Q. On page 191 of this record aprtears tlie following, does it not : ** Sixth day
session, Monday, October 28, 1912"?— A. Yes, sir.
Q. Signed — after the proceedings have been set forth is the signature of
Cl^uent Smith, circuit judge? — ^A. Yes, sir.
Q. The next we have in that book is '* Seventh day*8 session, Wednesday.
November 6, 1912"?— A. Yes, sir.
Q. Then appeai*s the following: ''This being the day to which the circuit
court for the County of Eaton was adjourned by the circuit judge." Appearing
htHow the same, " Hon. Clement Smith having given his order, thereupon th«f
court was adjourned until Thursday morning, November 7, 1912." And under
that is the signature of John C. Nichols, and under the signature oi John C.
Nichols aiJfiear the words " County clerk." Was that correctly read by nie from
the recortl? — A. Yes, sir.
Q. You don*t find ou that journal, to which your attention was directed, any
businesB by tlie circuit court of Baton County that occurred on the 4th day of
November, 1912, do you? — ^A. I do not
Q. Have you made an examination and search in your ofllce to aecotain
whether John C. Nichols filed any bond as county clerk and register iu chan-
cery of the county of E^ton at any time on or after the 4th of Noveniber, 1912? —
A. I liave spent the last 10 minutes.
Q. Did you find such a bond? — ^A. I did not
Q. Do you have any place in your office where papers of that kind are kept
s<qparately by themselves, that character of papers? — ^A. I do.
Q. Have yoti found or seen any such a bond in the office of the county clerk of
Saton Coimty given by John C. Nichols as county clerk and register in chancery
of Eaton County. Mich., since you took charge of that office?
Mr. Matnabd. I object to that as incompetent and immaterial.
The WrrNKSs. I have not seen it
Q. How long have you been county clerk. Mr. Ford, in this county? — A. Since
the 2d day of January, 1913.
Q. This is the first time you have been county clerk of this county? — A* Yes.
sir.
Q. I show you a iMii)er that is marked "Oath of office." Did you produce
that here for me? — ^A. Yes, sir.
Q. Where did you get it? — ^A. In the office of the county clerk.
Q. Is that a part of the files of your oflice?— A. It is.
Q. When did .vou first find that paper in your office? — A. I couldn't say when
I first saw it It was flr^^ cnlletl to my nttentlwi to-day ; I was asked to look
fbr it
Q. Where did .vou find It?— A. In the file case in my desk.
Q. Was that the fii*Ht place you found it in your office? — A. Yes, sir.
Q. The first time you found it? — ^A. I think so.
Q. Did you find It in there within a week after you took the office of county
clerk of this county? — A, I couldn't state.
Q. Have you any rei-ollettion of when you first saw that paper. " Oath of
office," which you just. now produced in the office of the county clerk? — ^A. I
couldn't say that I have; no, sir.
CABKEY V& SMITH. 121
Mr. Adams. Tbis being a file from tbe oflBce of tbe county clerk, I will uot
have it nmrked, but will read it in evidoice.
" State of Michioan,
"Ctmnty of Eaton, hs.
" I do solemnly swear tbat I will sap|K>rt tbe Goostitution of the United
S^tates and tbe constitution of tbis State and tbat I will faithfully discharge
the duties of tbe oflice of county clerk and register in cliancery according to tlie
best of my ability.
"John C. Nichols.
" Subscribed and sworn to before roe this 4tb day of November, A. D. 1912.
** Bbnbst O. Pray.
" Notary Publir.
"My commission expires 12-28-12.*'
Q. These envelopes that are before you addressed to the county clerk, Oliar-
lotte. county of Eaton, State of Michigan, and these envelopes that are before
you addressed to the board of county CHnvaf-^sers. care tbe probnte Judge or tb^
refdster of probate, Charlotte, Mich., are all envelopes that were a part of the
flies, papers, and returns In your office at this time? — ^A. They are; yes, sir.
Q. How long have these, to your knowledge, these envelopes and retumn.
to your knowledge been in tbe office of the county clerk of Eaton County? — A.
Since the 2d day in January, 1913.
Q. You have at the different sessions of this hearing in tills matter produced
these here for counsel for the respective parties, have you not? — A. Yes. sir.
Crofls-examination by Mr. Mathakd:
Q. By whom was this oath of office filed? — A. By Edna M. fiOhr. deputy
connty clerk, tlie 4th day of November, 1912.
Q. Tluit filing appears on the back of the oath of office? — A. Yes, sir: also
on the back of the oath of office " John C. Nichols, county clerk."
Q. That is the filing on the back of the paper?— A. Yes, sir.
Q. B&s this Edna M. IjOhr been your deputy since you have taken office? —
A. Yes, sir.
Q. She Is still in tbe office, is she? — ^A. Yes. sir.
Q. She lias had experience with your predecessor for some time?~A. Yes, sir.
Q. Have yon held any ottier office in the county but the office of county
clerkV-A. I have.
Q. Township office?— A. It was.
Q. What was it?— A. Supervisor of Eaton Rapids township.
Q. You had seen Edna M. Lohr in the county clerk's office working there for
mme time l)efore tbe change of administration?
Q. Since yon took yonr office, have you seen anybody examining tbe.se returns
and statements? — A. Yes, sir.
Q. These election returns? — A. Yes, sir.
Q. Have yon seen the contestee, John M: C. Smith, examining the returns?—
A. Yes, sir.
Q. When?— A. Why. I think he came in the office one day this week and asked
to see the returns from a certain township.
Q. That is all?— A. That is all; nil th'»t I recollect.
Q. Has lie at any time examined these returns and handled them over, to
your knowledge? — ^A. He has not; no, sir.
Q. When these have been brought up here, has the contestee. John M. C.
Smith, had anything to do with the production of them here before this commis-
sioner?—A. He has not; no, sir.
Q. Has anyone for him, that yon know of? — A, Not to my knowle<lge: no.
Q. By whom have these returns been produced here before the commis-
rtoner?— A. By the attorneys for the contestant
Q. Tliey have turned them over to you nights when they got thnnigh with
thein?— A. Yes, sir; they have been returned to my office.
Q. Tliey got them and brought them here?— A. I think I brought them up here
on each occasion; that is my recollection.
Q. Have you %een Mr. Carney fingering over those returns from time to time
in your ofllce since you took possession? — A. Yes, sir.
Q. No objection was made to him handling them in that way. was there?- -
^. No, sir.
Q. Now, has he tiad access to these books a considerable length of tfme
alone— going through the books alone?— A. Well, I could say that he has been
122 CARNEY VS. SMITH.
alone with the books; I can siiy that he has been in the office and taken the
books, and we have gone about our regular office work ; possibly we have been
both absent — Miss Ix)hr and I — at the same time; I couldn't say.
Q. During the time you were about your business, has he had the books
and examined them there at the table without anybody interfering with him or
overlooking his workV — A. He has; yes, sir.
Q. Did you ever see John M. C. Smith in there sitting down at the table ex-
amining these books as much as you have Mr. Carney? — A. I think not; no, sir.
Q. You don't recollect of ever seeing Mr. Smith in there examining these only
when he wanted to see the returns from a certain township?
Mr. Adams. I object to that as incompetent and calling for the conclusion of
the witness.
The Witness. No, sir.
Q. Did you give him the returns from that precinct? — ^A. Yes, sir.
Q. Has he ever asked you to get the returns only that one tliue?--A. I don't
remember that he has.
Redirect examination by Mr. Adams:
Q. What precinct was that that Mr. Smith wanted you to show him the
returns of?— A. It is my recollection that it was Sunfield.
Q. Sunfield? — A. Yes, sir; I wouldn't say posl ively; that Is my recollection.
Q. Did you give him the election returns for Sunfield at the time he asked
for them? — ^A. Yes, sir.
Q. Did you give him some others — ^brlug them all out together? — A. No, sir;
he asked me for the returns from Sunfield and I brought them out and we
looked them over together.
Q. Has counsel for the contestee be«i examining these election returns since
you have held the office of county clerk? — A. Not to my knowledge.
Q. Has Mr. Maynard been in there examining them at any time? — ^A. I don't
remember of seeing Mr. Maynard In there looking at the returns since I have
been in office.
Q. Do you recall the first time I came into your office to examine the election
returns, Mr. Maynard came in and sat down to the same table I was at and
took several of the returns and looked them over at the same table I was at?—
A, I couldn't tell you what was done with the returns; Mr. Maynard came in
the office on that occasion, but I was not watching the contestant or the con-
xesiee.
Q. Well, now, when Mr. Carney or his attorney has been in your office looking
at these returns, they were handed to him or them in the public office? — ^A.
Yes, sir.
Q. In your suite of rooms? — ^A. Yea, sir.
Q. And you or your deputy clerk were around there and in that room, one
or the other of you, practically all the time the returns were being examined by
Mr. Carney or his attorney? — ^A. I couldn't say we were In there all the time.
Q. Is that your best recollection? — A, We were in and out of the office; we
were at our ordinary work ; we didn't change it In any way.
Q. Do you know of any other time when Mr. Carney or his attorney, or
both of them, were in there examining the returns? — ^A. I would not know what
hapi)ened when I was absent.
Q. You don't know of any time when you were absent when they or either of
them, Mr. Carney or his attorney, were in there examining these returns? You
don't know of any time when you and your deputy were out of the office when
they were being examined by them? — A. I can recall times when I was absent
from the office during that time some Imes; I couldn't tell whether my deputy
was there or not, becuase I was not there.
Q. Well, yes*^erday when the returns were being examined by Mr. Carney
and myself you came into the office before we concluded the examination, didn't
you? — ^A. Yes, sir.
Q. When you got there your clerk was sitting there at the desk at my back?—
A. Well, I don't remember that ; I didn't notice the position she was in ; she
was In the room I think.
Q. She was sitting there and left you sitting there unMl we left?— A. Yes. sir.
Q. Right there where we were in the same room? — A. Yes, sh:.
Q. These election returns that are a part of the files and records in your office,
these election returns, are now within 2 or 3 feet of counsel for John M. C.
Smith, are they not — 4 feet?— A. Well, I should say within 6 feet, probably.
Q. They have been in the presence of the attorneys on both sides of this con-
test whenever you have been present during the taking of this testimony before
the commissioner? — A. Yes, sir.
CABNEY VS. SMITH. 12S
Q. And been in his Immediate presence, too?— A. Yes, sir; as far as I know.
Q. You have seen counsel for the otber side examining some of them here
when you have been before the commissioner? — A. Yes, sir.
Reeross-exnminatlon by Mr. Maynard:
Q. Do you Iluow whether of not there has been two t>onds filed in the county-
clerk's office, one by Mr. Nichols as county clerk and one as register in chan-^
eery? — ^A. There was not a register in chancery's bond fllerl in this office; it is
filed with the secretary of state.
Q. Do you know whether that has been done by Mr. Nichols? — A. I do not.
Q. You have never seen either bond in your office? — ^A. No, sir.
Q. Did you ever speak to Mr. Nichols about It? — A. I never have.
Q. You have never had your attention called to that matter until now? — .
A. I don*t remember that I have.
Q. What you mean to say is that within the last ten minutes you' have not
been able to lay your hand on that bond, if there Is one? — A. That Is what I say^
Redirect examination by Mr. Adams:
Q. Have you looked for this bond In the places or place in your office where^
yon would expect to find them? — ^A. I did.
Q. You have file cases In your office for bonds? — ^A. Yes, sir.
Q. And they are labeled, are they not? — ^A. We have a file case shnlhir to this
marked " Bonds of county officers '' for the current year. We keep those fileft
in that case for that year.
Q. Where are the bonds kei>t. if any, that were filed for the year 1912? — A.' I
was unable to locate them. I found no record on the general index for 1912
where there were any bonds filed for that year. 1 was unable to find it lu
there.
Q. Will you look a little farther and see whether you can fifnd those 1912
bonds, and the one that should have been filed about November 4, 1912, by Mr.
Nichols? — ^A. I can look, but if I don't find it in the file case or index, I don't
Icnow where to look.
Recross-exaniination by Mr. Maynabd:
Q. Have you been in the treasurer's office and asked for that bond? — A. No^
sir.
Q. Will you inquire of the treasurer whether any of these bonds are in hi&
possession? — ^A. I will.
Redirect examination by Mr. Adamb:
Q. Mr. Ford, you have produced here and handed me a bond of John C\
Nichols; Is that so?— A. Yes, sir.
Mr. Adams. I offer this bond in evidence.
Mr. Maynard. I object to it as incompetent and immaterial.
Q. Where did you find this bond? — A. I found it in the office of the county
treasurer of Eaton Ctounty, Mich.
Mr. Adams. This bond is as follows:
"Know all men by these presents that we, John C. Nichols, as principal, and
the American Bonding Co., of Baltimore, Md., a corporation duly authorized to
do business in the State of Michigan, are held and firmly bound unto the people
of the State of Michigan in the penal sum of $2,000, for the payment of which
sum well and truly to be made in lawful money of the United States of America
we jointly bind ourselves, our heirs, executors, and administrators forever firmly
by these presents.
" Sealed with our seals and dated this 11th dny of November. A. D. 1912.
" Whereas the above bounden John C. Nichols was appointed to the office of
clerk of the County of Eaton, State of Michigan, to fill a vacancy on the 4th day
of November. 1912,
"And whereas, by virtue of his said office as clerk and as register in chancery
of the circuit court of said county, now therefore, the condition of this obliga-
tion is such that if the said John C. Nichols shall faithfully perform the duties,
of said office of register in chancery, then the above obligation shall be void^
otherwise to he and remain in full force.
"John C. Nichols, [seal.I
'^American Bonding Co.
*' By Charles H. McNaughton, [seal.I
''Attorney in lact:"
124 CARNEY VS. SMITH.
Mr. Adams. To the left, under the words " In presence of," is the seal of the
American Bonding Co.. Incorporated in 1894. On the back of the bond appears
the following: "Official bonds of county officers with instructions to nse the
form for the different county officers. John 0. Nichols."
State of Michigan, County of Eaton, as:
" Filed November 12. 1912.
" Gl£x>n a. Boyeb,
" County Treasurer,**
Q. That is his bond as register in chancery? — A. Yes, sir; although It says
that he was appointed to the office of clerk. I think we have got the wrong
bond. Both bonds are filed with the treasurer. There is another bond of John
C Nichols. I picked this up thinking only of the bond that is filed as county
clerk.
Q. Is there another one down there? — A. Yes, sir.
Q. You have produced and handed to me another bond of John C. Nichols,
have you not? — ^A. Yes, sir.
Mr. Adams. This bond I offer in evidence.
Mr. Maynard. We object to it as incompetent and immaterial.
Mr. Adams (reading).
" Know all men by these presents that we, John C. Nichols, principal, and
the American Bonding Co., of Baltimore, Md., a corporation duly authorized
to do business in the State of Michigan, are held and firmly bound unto the
people of the State of Michigan in the i)enal sum of $3,000 for the payment
x>t which sum well and truly to be made in lawful money of the United States
x>t America, we jointly and severally bind ourselves, our heirs, executors, and
administrators forever firmly by these presents.
*' Sealed with our seals and dated this 11th day of November, 1912.
" Whereas the above bounden John C. Nichols was appointed to the office of
county clerk to fill a vacancy of the county of Eaton, State of Michigan, on
the 4th day of November, 1912.
*' Now therefore the condition of the above obligation Is such that if the
said John 0. Nichols shall faithfully, truly, and imx)artiany enter and record
all orders, decrees, judgments and proceedings of the court whereof he shall
officiate as clerk, and faithfully and impartially perform all the duties of said
office, and turn over all moneys that shall come into his 'hands as such clerk,
and deliver over to his successor in office the books, records, papers, and seals
belonging to the said office, then the above obligation shall be void, otherwise
be and remain in full force.
"John C. Nichols, [seal.] "
*' American Bonding Co.,
*' By Chables H. McNaughton, [skal.]
''Attorney in fact."
Mr. Adams. To the left, under the words " In presence of," is impressed tbe
Beal of the American Bonding Co., inconwrated in 1894. On the back appears
the following:
"Official bond of county officers, with instructions to use the form for tbe
different county officers.
'* John C. Nichom.
" State of Michigan, County of Eaton, »it.
"Piled November 12, A. D. 1912.
"('I.KON A. BoYKB, County Treasurer*'
Q. tK) you know where Charles H. McNaughton, the attorney in fact, lives?—
A. I do not.
Q. Or where he has his office? — A. I think in Detroit, Mich., but I am not sure.
Recross-examlnation by Mr. Maynard:
Q. Mr. Ford, how long have you been connected with the county seat doing
business here at the courthouse In different capacities, so you became familiar
with the office here? — A. Probably 10 years.
Q. Have you known John C. Nichols all that time? — A. I have.
Q. Have you ever met him more than once with the board of sui>ervl8ors? —
A. Yes, sir.
Q. When the board of supervisors are in session, do they meet at the same
time the circuit court does? — A. The January session generally does.
CARNEY VS. SMITH. 125
Q. Do you have an October session? — ^A. Tes, sir.
Q. Of the 8ui)en'isor8 In this county? — A. Yes, sir.
Q. Do one of the terms of court convene in October? — ^A. I believe so.
Q. Now, during tiie time you have been acquainted here, has Mr. Nichola
been deputy county clerk of this county for a good many years?
Mr. Adams. I object to that as Incompetent, irrelevant, and immaterial, nn<|
not the best evidence.
The WrrNEss. I think he has.
Q. Have you seen him frequently when the board of supervisors were in ses^
slon in the court room acting as county clerk or clerk of the court while the
board of supervisors were In session in this room?
Mr. Adams. Objected to as Irrelevant and immaterial.
Tlie Witness. I can't say that I have seen Mr. Nichols acting as clerk of the
court.
Q. Have you ever seen him In here while the county clerk was In the other
room? — ^A. I can't remember that I ever did.
Mr. Adams. I object to that as Irrelevant and immaterial.
Q. Was he deputy county clerk during the year 1912?
Mr. Adams. I object to that as Incompetent, Irrelevant, and immnterial, anct
not the t>est evidence.
Redirect-examlnatlon by Mr. Adams:
Q. Do yon keep a record In your ofllee showing who the deputy clerks are?-^
A. Yes, sir.
Q. The deputies qualify in some way, don't they? — ^A. No. sir; the deputies
make no qualification.
Q. Are not bonds filed? — A. A bond is given by the county dertc, approved by
the circuit Judge, and filed in the ofltee.
Q. So the record should be in the <^ee who these deputies hav« been in the
past? — ^A. Yes, sir.
By Mr. Maynard:
Q. Will you produce the api)ointment of Mr. Nichols? — ^A. I haven't it here.
Q. I wish you would produce that. — ^A. I have Just looked for it and couldn't
find it ; It ts maiiced on the miscellaneoos index as being
Mr. Adams. 1 object to the witness stating what is marked on any index, the
records will show for themselves.
The Witness. The index is a part of the records of the oflSce.
Mr. Matnabd. If you will produce the records themselves they are the best
evidence.
The WiTHBSS. Do you want the Index?
Q. Yes. Do you see any record there of the appointntent of John C. Nichola
as deputy county clerk, if so, when? — A. It is on the fifth page of the mlsc^n
laneous index, the appointment of John O. Nichols as county clerk.
Q. What do the figures refer to? — ^A. To the file case in our vault.
Q. Do you know what year that appears to be in? — ^A. The date is not placed
liere; however, it was written in at the bottom of the page in the handwriting
of Miss Edna Lohr, it must have been during the year 1912.
Q. Have you examined all these files? — ^A. Yes» sir.
Q. It Is not in the files? — ^A. No, sir ; it is not
Redirect examination by Mr. Adams:
Q. Now. Mr. Ford, following the page on which you find this appointment of
John C. Nichols as county clerk, are the figures 649, which you Just read.
There follows two other pages which are entirely filled with written, matter
except a couple of lines at the bottom of the third page? — A. The second page,
Q. At the bottom of the second page following, it is entirely filled with writ^
ing except about two lines at the bottom^ Is that correct? — A. Yes, sir.
Q. If that entry had been nwide — ^was made In 1912 — ^the logical place would
be after the poge where it is entered?^-A. It would not.
Q. Why not? — ^A. Because the two full pages are indexed B and that is In-.
dexed A.
Q. Where do you find that? — ^A. Here Is the index letter A and here is the
Index letter B. The miscellaneous index all matters under the subject of A
comes up under that.
Q. Have you any other mlscellaneouR index in yoor olfice? — A. We have one
that has not been used that Just came in.
126 CARNEY VS. SMITH.
Q. Has it beeu In there ever since you have been In office? — ^A. It has been
Jn there about two days.
Q. Was it in there when you went into office? — A. No, sir.
Q. I notice on this same page that this apiK)iutnient of Mr. Nichols as comity
•clerli appears is attached an extra sheet, which Is not a part of the bound vol-
ume, when was thnt put in there? — A. It was in tliere I tlilnlc Iminetliately
«fter I c;ime into the office.
Q. Do you know whether it was or was not put in there after you came Into
the office? — A. I think it was after I came in, but I couldn't say positively.
Q. Do you know in whose handwriting the entries on the extra page is, this
page which is bound in the book on wfiich this appointmoit of Mr. Nichols as
county clerk is entered? — ^A. There are four entries, three in the handwriting of
Aliss Lohr and one in my handwriting.
Q. The following entry on the first sheet following the reports on school in-
spectors, do you know when those reports wei*e filed in the ct)unty clerk's
t)ffice? — A. 1 couldn't say — during the mouth of January.
Q. Do you know whether those reports have been filed in that office since
the 1st of January, 191.3? — A. I couldn't say, I didn't make the entry.
Q. You don't know whether they were filed there then since January 1,
1913?— A. I don't know.
Q. Or whether they were filed before, you don't know? — A. No, sir; I do not.
Q. Do you know when that entry on that book, viz, the entry apiK)intlug John
tU. Nichols as county clerk 649, was made in that of your own knowledge? — A.
It has been made since the 16th day of June.
Q. That is not the question; the question is do you know when it was
tnade? — A. I do not.
Mr. Maynard. With reference to the county clerk's appointment, I wanted
the appointment of the deputy county clerks ; that is what I wanted to get at
Q. You don't find any record there at all of the appointment of John G.
Nichols as deputy clerk? — A. No, sir; I don't seem to.
Q. Counsel for contestant produced this appointment of county clerk ; where
tlid you find that, in this same box? — ^A. Yes, sir.
Q. That file happened fortunately to be in the place where It was indexed? —
A. Yes, sir.
Whereupon an adjournment was taken until 9 o'clock a. m., Friday, Febm-
«ry 28, 1913.
B'HIDAY, Febbuaby 28, 1913.
STIPULATION.
It is stipulated by counsel for the contestant and counsel for the contestee
that on and including November 5, 1912, Frank Flaherty and Alonzo Hough-
tflling were the aldermen in the first ward of the city of Charlotte; also that
Hal Hamilton and Claude S. Knowles were at that time aldermen in and of
the second ward of the city of Charlotte; also that Evander Dunning and J. B.
Dowdigan were at that time the aldermen in and of the third ward of the city
t>f Charlotte; also that James Greenman and Claude A. Pope were at that time
alderman in and of the fourth ward of the city of Charlotte; also that B. R.
Laverty was city clerk in and of the city of Charlotte at that time.
Mr. Adams. Referring to Exhibit 25, tally-sheet book of the general election
lield on the Rth dny of November, 1912, second ward, city of Charlotte, county
of Eaton. This is taken from the returns of the election furnished here by the
county clerk of Eaton County, and I am reading from i)age 12, under the head
of office appears the following: "Representative in Congress." Under the
head of " Candidates and names," appearing opposite the title " Representa-
tive in Congress," John M. C. Smith and Claude S, Carney. Under the head
f)f "Total straight votes," opiwslte the name of John M. C. Smith, 65. Under
the head of " Total split votes," opposite the name of John M. C. Smith, 59.
Under the head of " Total votes received," opposite the name of John M. C.
Smith, 161. Under the head of "Total straight votes," opposite the name of
Claude S. Carney, 48. Under the head of " Total split votes," opposite the name
of Claude S. Carney, 64. Under the head of "Total votes received," opposite
the name of Claude S. Carney, 107.
Reading from Exhibit 26. book, entitled " Statement of general election held
the 5th day of November, 1912, second ward, city of Charlotte, county of
CARNEY VS. SMITH. 127
Eaton," on pnge 7 thereof, under the title " Representative in CJongress," appear
the names of John M. C. Smith and Claude S. Caniey. Under the heading
opposite the name John M. C. Smith, which heading is "Votes received,"
there appears opposite the name of John M. C. Smith, 161. Under the heading
at the top of the column, which heading is ** Put In figures in this column,"
opposite the name of John M. C. Smith, are the figures 161. Under this same
heading, opposite the name of Claude S. Carney, appear the figures 107.
1 now hold in my hand a book marked " Charter of the city of Charlotte
and the Rules and Ordinances," and I ask counsel upon the other side whether
they stipulate to concede upon the record that the book I have in my hand,
which I have just given the title of, contains, on pages 3 to 99 thereof, both
pages inclusive, the charter of the city of Charlotte, county of Eaton, Mich.,
which was In force during the year 1912, and the only charter of that city from
the 1st day of January, 1912, to and including the 1st day of January, 1913,
and still is the charter and the only charter of the city of Charlotte in said
county and State. That contains all the charters as to elections: we have had
some amendments on some other matters, but they do not refer to elections.
We asked counsel for the contestee to concede that the charter which is re-
ferred to contains the only charter provision in force during that period of
time relating to elections.
Mr. Maynard. Yes, sir.
Mr. Adams. I desire to offer from this charter from page 12, sections 33, 34,
35, and 36, and will rend into the reOord the first section :
*' Sec. 33. On the day of election, held by virtue of this act, the polls shMl be
oiiened in each ward at the respective places designated by the council at 8
o'clock in the morning and shall be kept open until 5 o'clock in the afternoon, but
not later, at which hour they shall be finally closed.
" Sec. 34. The two' aldermen of each ward, except as in this act otherwise
provided, shall constitute the board of inspectors of election for their respective
wards at all elections held therein whether ward, city, county, district, or State.
If at any election either or both of such inspectors shall be absent at the hour
for opening the polls or shall not remain in attendance the electors present may
chose viva voce such number of such electors as, with the inspectors present, if
any, shall constitute a board of two in number, and such electors so chosen shall
be the inspectors of that election. Such board of election inspectors may
appoint such number of clerks, gatekeei)ers, and officers as shall be necessary
to comply with the election law of the State, and all persons so appointed and
each insi>ector so appointed or chosen shall take the constitutional oath of ofilce,
which oath either of the inspectors may administer, or any person authorized
by law to administer oaths. The senior alderman of each ward shall be
chairman of the board of inspectors of the election therein.
•*Sec. 35. All elections held under the jwovislons of this act shall be con-
ducted as near as may be in the manner provided by law for holding general
elections in the State, except as herein otherwise provided. The inspectors of
Buch election shall have the same powers and authority for the preservation of
order and for enforcing obedience to their lawful commands during the holding
of the election and the canvassing of the vote as are conferred by law upon
Inspectors of the general elections held in this State.
" Sec 36. The manner of conducting elections and canvassing votes shall be
the same as in townships, the word " ward " instead of " township " being
used in the oath to be administered to an elector In case his vote Is challenged,
and in the making of all certificates or statements of and concerning such
lection, provided that at such charter election said ward inspectors shnll make
a statement in writing setting forth in words at full length the whole number of
votes given for each office, the names of the persons for whom the votes for
each office were given, and the number of votes so given for each person and
the whole number of votes given upon each question 'voted upon and the number
of votes given for and against the same, which statement shall be certified under
the hands of the inspectors to be correct, and they shall deposit such statement
and certificate on the day of election, or before noon of the next day thereafter,
together with the poll lists, tally sheets, register of electors, and the boxes con>
taining said ballots in the office of the city clerk."
I offer in evidence Exhibit 27, marked " Poll book of the general election
held on the 5th day of November, 1912, in the township of Carmel, county of
Baton, Mich.," which is one of the returns of election in the custody of the
county clerk of Eaton County, Mich., and produced by him on this hearing. I
128 CARNEY VS. SMITH.
retLd from page 2 thereof under the heading " Oaths of inspectors of election/*
as follows:
Mr. Maynabd. We object to that as incompetent and immaterial.
Mr. Adams (reading) :
-' Staiv op Michigan,
'*€ouniff of Eaten, ss:
" I do solemnly swear that I will sni^mrt the Constitution of the United
States and the constitution of this State, and that I will faithfully discharge the
(Kities of the ofiBce of inspector of this election, held on Tuesday, the 5th day
of "November, 1912, at the Garmel town taaU, township of Carmel, according to
the be^t of my ability.
" QOBDON GbTITIN.
"Ol^ken, Rnbscrlbed, and sworn to before me this 5th day of November,
A. D. 1912.
" W. L. HvfBetL"
There is no designatltm appearing oa this certificate showing the official
character of W. M. Huber.
The second certificate is a certificate of Uke character, but there Is no signa-
ture of any person making the oath, and is signed by W. L. Huber, but there Is
no designption of his official character. -
The third certificate is contained on tSa^ same page and is of like character
as tlie one read into the record, but bears the signature of no one making the
oath. It is signed by W. L. Huber in like manner as the first certificate read in
evidence.
The fourth certificate appenring on this same page of Exhibit 27 is signed
by Hurlburt Shaver. Under the name of Hurlburt Shaver appear the follow-
ing:
" Taken, subscribed, and sworn to before me this 5th day of JNovember.
A. D. 1912.
" W. L. HUBEB."
There is no designation under the name W. L. Huber in what capacity he
^as acting in administertn|p the oath. On page 8, of Inhibit 27, appears another
certificate, as follows:
" State or Michioak,
**ComUif of Euton, 88:
" I do solemnly swear that I will support tlie Constitution of the United
States and the constitution of this State, and that I will faithfully discharge
the duties of the office of inspector of this election held on Tuesday, the 5th
day of November A. D. 1912, at Oarmel township hall, in the towntiiip of
Carmel, according to the best of my sbUity^
*' CORTBS F. CUSRINO."
"Taken, subscribed, and sworn to befbre me this 5th day of November,
A. D. 1912.
" W. T.. Httbeb."
Ttiere is no designation of the official capacity under the name of W. L. Huber.
On the same page 3, of Exhibit 27, appears the following:
*' State or MicmoAN,
''County of Baton, 88:
" I do solemnly swear that I will support the Constitution of the United
Stntes and the constitution of this State, and that I will faihfully discharge the
duties of the office of Inspector of this election held on Tuesday, the 5th day of
November, A. D. 1912, at the Carmel town hall, Carmel township, according to
the best of my ability.
"William Clements.
"Taken, subscribed, and sworn to before uie this 5th day of November,
A. D 1912.
" W. L. HUTOB."
There is no official designation under the name of W. L. Huber as to his
official capacity. These two certificates last read into the i^ecord the word
" inspector " in the certificate is written in with a pen over the printed word
CARNEY VS. SMITH. 129
"clerk." In each one of the certillcates the word "clerk" has a line dniwn
through it On this same \mge 3. of this same Exhibit 27, are two certificates
being resjiectlvely signed bj- D. C. Cole and Wilbur C. Martin.
''State of Michigan,
"County of Eaton, ss:
"I do solemnly swear that I will support the Constitution of the I'nited
States and the constitutlou of this State, and that I will faithfully discharge
the duties of the office of clerk of this election held on Tuesday, the 5th day of
NoTember, A. I). 1912, at the Carmel town hall, townshlf) of Carniel. according
to the best of my ability.'*
Under the respective names appear the following:
** Taken, subscribed, and sworn to before me this 5th day of November, A. D.
1912.
"W. L. HUBEB."
There is no designation under the name of W. L. Huber of his official capacity.
Residing from page 16 of this same Exhibit No. 27 is the following:
"The whole number of votes cast, according to the poll list, is 239. The whole
number of ballots counted on opening the ballot box was 238. The whole num-
ber of ballots in excess of the number of electors voting destroyed was 172."
" CERTmCATE OF INSPECTORS.
"State of Michigan, Cov/nty of Eaton, ss:
" We do hereby certify that the foregoing poll list has been carefully com-
pared by us with the duplicate poll list as required by law and that all mistakes
found in such poll lists have been duly corrected by us and that both said poll
lists are now correct and agree ^ith each other.
"In witness whereof we have hereunto set our hands at Carmel Township
hall, in said county and State, this 5th day of November, A. D. 1912.
" Gordon Griffin,
" gobtez f. cushing.
"HuBLBURT Shaver,
" Inspectors of General Election held on
" Tuesday, the 5th day of November, A. D. 1912.*'
I offer In evidence the statemen*^ book of the genemi election held on Tues-
day, the 5th day of November, A. D. 1912, at the towndilp of Carmel, county of
Eaton, State of Michigan, being marked Exhibit 28, being one of the election
returns which has been produced by the county clerk of the county of Eaton,
and read from page 16 of ESxhlbit 28, as follows:
it
CERTIFICATE.
"State of Michigan, County of Eaton, ss:
" We do hereby certify that the foregoing is a correct statement of the votes
given In the township of Carmel, county of Eaton, Stnte of Michigan, at the
general election held on Tuesday, the 5th day of November, A. D. 1912.
"In witness whereof we have hereunto set our hands at the town house of
Carmel, in said county and State, this 5th day of November, A. D. 1912,
" Gordon Griffin,
"D. C. Cole,
" Hurlburt Shaver,
*' W. L. Huber.
" Inspectors of Election.**
I desire to have it appear upon the record that Exhibit 27 contains no certifi-
cate showing that W. I^. Huber took any oath, so far as that exhibit shows,
such as the other Inspectors in that precinct took, as shown by this Exhibit 27,
to act in the capacity of inspector at that election on that day. I show this
Exhibit 27 to counsel for the contestee and ask him to challenge the incorrect -
ness of this statement upon the record.
Mr. Matnard. I object to it as being Incompetent and immaterial and as not
tending 'o show that W. L. Huber did not take the constitutional oath of office
as required by the election law on that occasion.
28H— 1.3 9
130 CARNEY VS. SMITH.
Mr. Adams. I offer iu evidence Exhibit 29, entitled " Poll book of the goieral
election held on the 5th day of November, A. D. 1912, In the townsliip of
Kalamo, county of Eaton, Mich."
On page 2, under the heading "Oaths to inspectors of elec'lon," the printed
forms of oaths for inspectors of election are not filled out in any particular in-
«tance, to which I call the attention of counsel for the contes ee to. I now
show him this exhibit and ask him to correct the statement I have Just made.
If it is nor correct as shown by this exhibit.
Mr. Maynard. I will not take time to examine it but I will object to its in-
troduction on the ground that it is incompetent and immaterial and does not
tend in any way to show that the officers did not take the constitutional oath
of office as required.
Mr. Adams. I offer iu evidence Exhibit 30, entitled *' Poll book of the general
election held on the nth day of November, A. L). 1912, in the township of Benton,
Eaton County, Mich..*' and desire to read from page 10 of Exhibit 30 as follows:
*' CKHTIFICATE OF INSPKCTOBS.
** State of Michigan, County of Eaton, as:
•* We do hereby certify that the foregoing poll list has been carefully com-
pared by us with the duplicate poll list as required by law, and that all mis-
takes found in such poll lists have been duly corrected by us, and that both
said poll lists are now correct and agree with each other.
" In witness whereof we have hereunto set our hands at the township of
Benton, in said county and State, this 6th day of November, A. I). 1912.
'* John D. Wright,
"R. R. Grbgo,
** f^NTON F. Dteb,
" William H. Van AuKiat,
" Inspectors of the General Election
Held on Tuesday, the ruh day of November, A. D. 19! 2.
I offer in evidence Exhibit 31, statement book of the general election held on
the 5th day of November, A. D. 1912, at the township of Hamlin, county of
Eaton, Mich., and I read from page 16 of this exhibit as follows :
" CEBTIF'ICATE.
** State of Michigan, County of Eaton, hs:
'* We do hereby certify that the foregoing is a correct statement of the votes
given in the township of Hamlin, county of Eaton. State of Michigan, at the
general election held on Tuesday, the otli day of Noveinl>er. A. D. 1912.
" In witncFS whereof we have hereunto set our hands at the town hall, town-
ship of Hamlin, said county and State, this 6th day of November, A. D. 1912.
**Ancil E. Holmes.
" a. D. HiCKs,
"J. E. McNittt,
** Oliver D. I^ake,
" Inspectors of Blection,^^
I offer in evidence Exhibit .S2, tally sheet book of the general election held
on Tuesday, the 5th day of November, A. D. 1912, at the township of Eaton,
Eaton County, Mich., and desire the record to show that page 12 of this exhibit
under the office, namely, ** Rei>re8eutatlve in Congress," opposite the names of
the candidates for Representative in Congress, to wit, John M. C. Smith, Claude
S. Carney, Levant li. Rogers, and Edwin N. Dingley, there appear In the spaces
where the tallies ought to be in no tallies whatever. T'nder the heading " Total
straight votes," oi)iJOsite the name of John M. C. Smith, 55. Under the heading
"Total split votes." opposite the name of John M. C. Smith, 84. Under the
heading ** Total votes received," op|)osite the name of John M. C. Smith, 139.
Under the heading "Total straight votes," opi)osite the name of Claude S.
Carney, ai. Under the heading "Total split votes," opiwsite the name of
Claude S. Carney, 12 Under the heading "Total votes received," opposite the
name of Claude S. Carney, 43. No figures entered opposite the name of Levant
L. Rogers. Tiider the heading "Total straight votes," op|K)Bite the name of
Edwin N. Dlngley, 6. Under the heading " Total split votes," opposite the name
CARNEY VS. SMITH. 131
of Bclwin N. DIngley, 3G. Tender the heading " Total votes received," owwalte
the name of Bdwin N. Dingley, 42.
I show this book 32, page 12, to counsel for the contestee, and call his atten-
tion to the fact just recited upon the record, and ask him to challenge the cor-
rectness of the statement.
Mr. AfAYNABD. I will not take time to examine It but will object to it as in-
competent and immaterial and will object to the statement of the attorney for
the contestant as made respecting these exhibits from 25 to 32, inclusive, as not
being the best evidence ; the best evidence would be the books themselves.
Mr. Adams. It is the book itself that I am reading from. It is inii)08slble to
produce these books before the committee of the House of Representatives. I
now open and hold before counsel and lay down on his desk this Exhibit 32.
oi>en to page 12, and ask him to challenge the correctness of the statement I
have made upon the record.
Mr. Maynard. I will not take time for that, but insist ui)on the book being
placed in evidence and laid before the committee in Congres.^.
Mr. Adams. Is there any question about the correctness of my statement?
Mr. Maynabd. I am not going to examine it nor admit nor deny anything as
to what the books contain ; I am objecting to the manner of proving it.
Mr. Adams. The book is in evidence. We would be glad to have the books
taken to Washington so the committee of the House of Representatives
could see them. We believe they will show even more than we are claiming for
them. It might be of material benefit to the committee to have the advantage
oi them in this investigation.
Mr. Maynabd. The books can be put in evidence and taken down there.
Mr. Adams. I don't suppose we can take them out of the files of the county
clerk of Raton County. The law requires them to remain there. If there is
any means, legally, by which they can be removed from the custody of the clerk
of Eaton County, counsel for contestant has no objection to their being taken
before the committee of tlie House of Representatives upon the hearing of this
proceeding.
We offer in evidence Exhibit 33, poll book of the general election Ueld on
Tuesday, the 5th day of November, A. D. 1912, at the township of Walton,
Baton County, Mich., being one of the records presented here before the com-
missioner taking the depositions by the county clerk of Eaton County. I de-
sire to call attention to page 16 of this poll book :
There is no entry made In writing or figures under the heading " Wh<rfe
number of votes cast according to the poll lists was."
There is no entry made in writing or figures under the words " whole number
of votes counted on opening the ballot box was."
There is no entry made in writing or figures under the words " Whole num-
ber of ballots in excess of the number voted and destroyed was."
I call attention on this same page of this same exhibit, the form of the cer-
tificate there printed to be filled out Is not signed by anybody. Opposite these
words appear "Certificate, inspectors of the general election held on Tuesday,
the 5th day of November, A. D. 1912." The places for the signatures are
entirely blank. I show this to the counsel and lay it ui)on his desk, and ask him
to challenge the correctness of the statement made upon the record.
Mr. Maynabd. I will not take time to examine the book, but will object to it
as incompetent and immaterial and not the best evidence.
Mr. Adams. I will offer in evidence Exhibit 34 tally sheet book of the general
election held on Tuesday the 5th day of November, A. D. 1912, for the township
of Walton, county of Eaton, Mich., and desire to have the record show that
opiwsite the names of John M. C. Smith, Claude S. Carney, levant L. Rogers,
and Edwin N. Dingley, opposite the words " Representative in Congress," that
there is absolutely no tally made upon this tally book. All that appears oppo-
wte " Representative in Congress " are the following figures :
Vnder the heading "Total votes received" opposite the name of John M. C.
Smith, 139.
Under the heading " Total votes received " opposite the name of Claude S.
Carney, 135.
Under the heading " Total votes received " opposite the name of Levant L.
Rogers. 3.
Under the heading "Total votes received" opposite the name of Edwin X.
Dingley. 86.
132 CARNEY VS. SMITH.
I show this p}ige 12, which I have just read from, to counsel for the cou-
testee. and lay the book before him on his desk and ask him to challenge upon
the record the correctness of the statement I have just made on the record.
Mr. Maynard. I will not examine the book, but I will object to it as incom-
petent and immaterial and not the best evidence.
Mr. Adams. I offer in evidence Exhibit 35, which is the tally-sheet book of
the general election held on Tuesday, November 5th, A. D. 1912, at the town-
ship of Bellevue, Eaton County, Mich., which has been produced here by the
county clerk of Eaton County. On page 12 of this exhibit, which Is the tally-
sheet book, there are no tallies entered opposite the nnmes of John M. C. Smith,
Claude S. Carney, Levant L. Rogers, and Edwin N. Dingley, candidates for-
Representative in Congress, except one tally opposite the name of Claude 8.
Carney.
Under the head of ** Total straight votes,'* opp'jsite the name of John M. C.
Smith, appear, 188.
Under the head of "Total split votes," opposite the name of John M. O.
Smith, 58.
Under the head of " Total votes received," opposite the name of John M. C.
Smith, 246.
Under the head of "Total straigiit votes," opposite the name of Claude S.
Carney, 117.
Under the head of ''Total split votes," opposite the name of Claude S.
Carney, 38.
Under the hend of "Total votes received," opiwsite the name of Claude S.
Carney, 155.
Under the head of "Total straight votes," opposite the name of I^evant L.
Rogers. — .
Under the head of "Total split votes," opposite the name of I-«vant L.
Rogers, 2.
Under the head of "Total votes received," opposite the name of Levant I*
Rogers, 2.
Under the head of "Total straight votes," opposite the name of Edwin N.
Dingley, 22.
Under the head of "Total split votes," opposite the name of Edwin N.
Dingley, 23.
Under the head of " Total votes received." opposite the name of Edwin N.
Dingley, 45.
In Exhibit 16, township of Bellevne, county of Enton, Mich., being the poll
book, I desire to have the record show that the blank forms for the officers of
inspectors of election to sign and make oath, that not one of them is filled out
in any particular. I show the same to counsel for the contestee and ask him to
challenge the correctness of my statement, in this regard, upon the record.
Mr. Maynabd. I will not take time to examine them, but will object to li as
incompetent and immaterial and no evidence that the officers did not take the
constitutional oath upon that occasion.
Mr. Adams. I offer in evidence Exhibit 36 entitled " Statement book of the
general election he'd on Tresday, November 5th, A. D. 1012, in the third ward,
Eaton Rapids. County of Eaton, Mich.," which statement book Is pix)duced by
the county clerk of Eaton County as a part of the election returns held on
Tuesday, November 5, 1»12, and read froni page 16, as follows:
" CEBTIFICATE.
" State of Michigan,
" County of Eaton, ss.
" We do hereby certify that the foregoing is a correct statement of the votes
given In the third ward of the city of Eaton Rapids, county of Eaton. State of
Michigan, at the general election held on Tues<lay, the 5th day of November,
A. D. 1912.
" In witness whereof we have hereunto set our hands at the third ward, city
of Eaton Rapids, said county and State, this 6th day of November, A. D. 1912.
"Claude C. Smith,
" George H. Seel ye,
" S. A. Annis,
"F. S. Leiohton,
** Inspectors of Election.'
i»
CARNEY VS. SMITH. 133
I offer In evidence sUitement book of the general election held Tuesday,
NoTember 5th, 1912, in the third ward of the city of Charlotte, Eaton County,
Mich., marked Exhibit 37, and read from page 16 :
" Certificate.
"State of Michigan,
** County of Eaton, hs:
" We do hereby certify that the foregoing is a correct statement of the votes
given in the third ward of the city of Charlotte, county of Eaton, State of Michi-
gan, at the general election held on Tuesday, the 5th day of November, A. D.
1912.
"In witness whereof we have hereunto set our hands at the city of Charlotte,
Rjiid county and State, this day of November, A. D. 1912.
" E. Dunning,
" J. B. DOWDIGAN,
** Geo. J. Barney,
*' Inspectors of Election.'^
We offer in evidence Exhibit 38, statement book of the general election held
on Tuesday, the 5th of November, A. D. 1912, at the fourth wnrd of the city
of Charlotte. Eaton County, Mich., and read from page 16:
" Certificate.
*• State of Michigan,
" County of Eaton, 88:
•* We do hereby certify that the foregoing is a correct statement of the votes
given in the fourth ward of the city of Charlotte, county of Iilaton, State of
Michigan, at the general election held on Tuesday, the 5th day of November,
A. D. 1912.
" In witness whereof we have hereunto set our hands at the city of Charlotte,
said county and State, this 5th day of November, A. D. 1912.
**C. A. Pope,
"J. A. Greenman,
" Marion Porter,
"Inspectors of Election.*'
I read from Exhibit 39. S*^atement book of the general election held on
Tnewlay, November 5, A. D. 1912, in the first ward in the city of Charlotte,
county of Eaton, State of Michigan, and read from page 16 as follows :
*' Certificate.
*' State of Michigan,
" County of Eaton, ss:
" We do hereby certify that the foregoing is a correct statement of the votes
Kiven in the first ward of the city of Charlotte, county of Eaton. State of Michi-
gan, at the general election held on Tuesday, the 5th day of November, A. D.
1912.
" In witness whereof we have hereun^^o set our hands at the city of Charlotte,
«»id county and State, this 5th day of November. A. D. 1912.
"A. A. Houghtalino,
"Myron Hawkins,
" F. F. Flaherty,
" Inspectors of Election."'
All the election returns offered in evidence to-day I desire the record to show
are from the election returns which were produced here before the commissioner
taking the depositions l)y the county clerk of the county of Eaton as being tho
election returns of the election held in the various localities and voting i)lacos
in the county of Eaton on the 5th day of November, 1912.
Mr. Maynard. Each and every one are objected to as incompetent and Imma-
terial and not the best evidence.
Mr. Adams. Will you stipulate as to the witnesses who have been sworn and
the number of miles they have traveled?
134 CARNEY VS. SMITH.
Mr. Maynabd. Ye« ; we can draw a stipulation and date It etB of to-day. You
may make a list of your witne^see, the number of miles tbey have traveled*
iind the time they have attended, and take It before the commissioner and
swear to it and he will O. K. It.
March 7, 1913.
AGNES M. STERLING, being duly sworn to testify to the truth, the whole
truth, and nothing? but the truth, testified on behalf of the contestant as follows:
Direct examination by Mr. Adams:
Q. Is It Mrs. Sterling or Miss Sterllni??— A. Miss Sterling.
Q. Mi88 Sterling, you live In Marshall, ('alhoun County, do you?— A. Yes. sir.
Q. Do you hold any official position in thin county? — A. Yes. .«*ir.
Q. What is it? — A. Deputy county clerk.
Q. Now. how long have j-ou held that office? — A. About a j-ear.
Q. Were you the dei)uty cpunty clerk on the .1th of November last?— A.
Yes. sir.
Q. Have you or not been ever since that deputy county clerk? — A. Yes, sir.
Q. Who is the county clerk of Calhoun County at the present time? — A. Mr.
Cady.
Q. How long has Mr. Cady been county clerk? — A. Since the. 1st of Januarj-.
Q. Who was clerk of this county In the year l!n2?— A. Ray E, Hart.
Q. Mr. Cady was elected and took the office the Ist of January, 1013?— A.
Yes, sir.
Q. Is there In the possession of the county clerk of this county the returns of
the election board that officlHtetl at the last. November 5, 1912. general election
In this State the return of the board In your possession ? — A. Yes, sir.
Q. As deputy county clerk? — A. Yes. sir.
Q. State whether there is In the possession of the deputy county clerk a record
of the proceedings of the board of county canvassers of the canvass of the votes
of the general election held November T), 1012. in this county of Calhoun. i>ar-
tlcularly the second precinct of the second ward of the city of Battle Creek,
and have you or not those records now before you before the commissioner
taking this testijuouy? — A. Y>s, sir.
Q. Those are the ones you prcxluced? — A. Yea, sir.
Q. I notice here that they were returned in an enveloi)e which Is entitled
** Election returns. Battle Creek, second precinct, second ward. Calhmm County,
Mich.. addre8se<l to the county clerk. Marshall. Calhoun County, Mich., filed
November 8, 1012. Kay E. Hart, Calhoun County clerk " ; is that one of the
files and records of your office that you have just referred to and that you pro-
duced?— A. Yes. sir.
Q. I show yoti Exhibits 41. 42. and 43. Exhibit 41 being the poll book of the
general election held on Tuesday, the nth day of November. 1912, In the second
precinct in the second ward of Battle Creek, and 42 being the tally-sheet book
of the same general election of the same precinct and ward, and 43 being the
statement book of the general election held on the same day and In the same
precinct, and ask you now to state whether or not — ^and Exhibit 41 is the en-
velope in which thoy were returned — those exhibits, namely. 41. 42. and 43. are
the contents of the enveloin* 40 or not? — ^A. Yes. sir.
Q. Y^)u may state whether those exhibits that I have called your attention to
were returned as elwtiou returns from thi't ward and precinct to the county
clerk of Calhoun County and filed with tlie clerk November 8, 1912? — A. Yes, sir.
Q. I call your attention to an envelope, marked '* Exhibit 44," that you have
produced here, addressed to the board of county canvassers, care the judge of
probate or the register of probate: this envelope contains the returns, statement
of votes, and the result of the election held in Battle Creek, second precinct,
second ward, Calhoun Count:^'. I also call your attention to Exhibit 45. entitled
*' Poll book of the general election held Tuesday. November 5, 1912, second ward,
second precinct. Battle Creek." and Exhibit 4(5. which is the tally-sheet book
of the general election held Tuesday, November 5. 1012, in the second precinct,
second ward, city of Battle (^reek. county of Calhoun, and Exhibit 47, entitled
*' Statement book of the general election held November 5. 1912, in the second
precinct, second ward, of the city of Battle Creek, county of Calhoun," and ask
you now to state whether tliose four exhibits, which I have just called your
attention to In this question, were received at any time and came into the ikis-
CABNEY VS. SMITH. 135
siession of the connty clerk of Calhonu County? — ^A. They came into the posses-
sion of the coanty, probably, from the canvassing board.
Q. When? — A. After they completed the canvass.
Q. That was held after the November 5, 3912. election? — A. Yes, sir.
Q. I call yon attention next to a book that is marked on the bnck, *' Record
of elections. Calhoun County," and ask you what th:>t book is? — A. The county
t-anvrssers' return of the votes.
Q. The return of the canvass of the votes in Calhoun (^)unty. which votes
were cast at the November 5. 1912. election?— A. Yes, sir.
Q. I call your nttention to piige 132 of thnt record, and ask you whether that
Iiage contains the canvass jis made by the board of county canvassers of the
votes cast for Representatl^ e iii Congress at the general election hehl Novem-
ber 5, 1912?— A. Yes, sir.
Q. You may st^ne whether this book record of elections is or Is not the record
In the office of the county clerk of Calhoun County, Mich. — A. It is.
Mr. Adams. That is all of this witness.
Mr. Frankiiacskr. No cross-examination at the present time.
OFOK<iE W. SCIINEIDEK, being duly s\^'oni to testify to the truth, the
whole trnth, stml nothing but the truth, testified on behalf of the contestant. «s
follows :
Dli*ect examination by Mr. AnAMs:
Q. Mr. Schneider, where do you reside? — ^A. Albion, Mich.
Q. Is that, or not, In Calhoun County? — A. It is.
Q. How long have you lived In Albion in this county? — A. Twenty-five or
thirty years.
Q. What Is your age? — A. I am 51.
Q. Were you a member of the board of county canvassers, the board that
counted the votes that were cast at the November 5, 1912, general election? —
A. I was.
Q. The board that canvassed the votes for Representative in Congress at the
November 5. 1912, general election held in the county of CsUhoun, State of
Michigan? — A. Yes, sir.
Q. Did you act on that board in the canvass of the votes cast for Repre-
sentative in Congress at that election? — ^A. I did.
Q. Who were the other members of the board? — A. (Charles Andrews and
Franklin W. Dickey.
Q. Yourself and Mr. Andrews and Mr. Dickey acted on the board of county
cauvaraers in canvassing the votes at that election, did you? — A. We did.
Q. Where did you meet? — A. In this room. In Marshall, Mich., at the court
house.
Q. When did you meet? — A. I will have to refer to the minutes; November 12.
Q. November 12, 1912?— A. Yes, sir.
Q. That was the day you met? — A. That is the day we met ; yes, sir.
Q. Did the board of county canvassers which met on the 12th day of Novem-
ber, 1912, as you have stated, did it or not canvass the votes that were cast for
the various candidates for Representative in Congress, in the county of Cal-
houn?—A. We did.
Q. I wish you would state, Mr. Schneider, just what occurretl in connection
with the canvass of the votes for the candidates for that ofllce when your board
canvassed that vote — thtit is. the office for Representative for Congress. — A. I
don't know as I quite understand your question: as to the election entire?
Q. No; just the Representative in Congress. — A. You mean throughout the
whole county?
Q. Just to this precint. — A. You haven't referre<l to that.
Q. I mean that is applicable or relate to the votes cj'st in the second precinct
of the second ward of Battle Creek. — A. Well, when we recelv(»d the box from
the county clerk, he advised us that the number of votes returned were less
than the number cast at the election, and after looking the reinirt of the election
board over and comparing it with the i>oll list, we also knew that there must
liave been more votes cast than was retumetl. The county canvassing board
2!Sked the advice of the legal authority of this county, the prosecuting attorney,
and we were advised to call this election board of that pret»inct to Marshall and
ask them to correct their return. We did so. We ordered them to Marshall
with their ballot boxes. I oiiened that box as chnlrman of the board of can-
vassers. There was no data in the box unless we us^od the figures thnt were
136 CARNEY VS. SMITH.
on the tickets, on the n)lls of tickets, which we did use in corre<*tiug the returns
;»ccording to tliose figures which we found on the back of each roll. A roll of
tickets like that ! indicating! we would see so many "straight I)." and so many
"straight K.** and so many "straight N. P." and so many "straight S." which
we look for Democrats, Republicjm, National Progressive, and Socialist tickets.
Tenter the board of canvassers were convinced tliat we had exceedetl our au-
thority, tliat wo had no right to molest the tickets in those boxes, so we again
called the board to Marshall and the boxes were there agjiin opened ami the
report was corrected by a blotter that the box contained that was made by one
of the clerks at that election. The red figures in that book indicate the changes
ihrt were made at that time.
Q. Wh'it election returns did you have before your board of county canvassers
; t the time you can\assei1 the vote for Representative in Congress that were
cast in the second ju'eciuct of tlie second want of Battle Creek V — A. What did
we have originally before us'/
Q. Before you called the eUn'tlon board before your boardV — A. The black
figures in that book.
Q. What particular books^ — election returns — did you have bef<»re you, if
any? — A. We had the statements as returned by the election board.
Q. I call your attention now to Exhibits 40, 41, 42, and 43, which were pro-
duced here by the deputy county clerk this morning, and ask you to state
whether all those exhibits I now hand you for your examination were or were
not before your l>oard when you first began the canvass of the votes cast for
Representative in Congress at the November 5, 1912. election in the second
precinct second ward. Battle Creek? — A. They were; yes, sir.
Q. Now this Exhibit 40 is an envelope, is It not? — A. Yes, sir.
Q: Addressed to the county clerk, Marshall, Calhoun County? — A. Yes, sir.
Q. Is there a filing marked on there of the county clerk which reads. " Filed
Novend)er S, 1912, Ray E. Hart. Calhoun C\)unty clerk*'?— A. It is.
Q. When you got that envelope where were these other three exhibits you
have in your hand — 41, 42, and 43? — ^A. They were in this envelope.
Q. W^as the envelope sealed or unsealed when it came into the i)o.ssession of
the board of county canvassers?
Mr. Maynabd. Objected to as irrelevant and Immaterial.
The WiTNKSS. The envelopes, all of them returned from the county clerk,
were open.
Q. I understand you to say that the board of county canvassers, of which
you were a member at the time mentioned, asked the election board of the sec-
ond precinct, second ward. Battle Creek, to bring before your board of can-
vassers the ballot box that was used at the election held in that precinct on No-
vember 5. 1912? — A. Yes, sir.
Q. And that election board brought that ballot box before your board of
county canvassers, did it? — A. Yes, sir.
Q. When did the election board of that precinct bring this ballot box that
was used at that election before your board? — ^A. On the 13th of November, 1912,
Q. Was that the first time at that particular meeting of the board of county
canvassers that that election board brought that ballot box before your board of
canvassers or not? — A. It was.
Q. You stated that the election board of that precinct, second precinct, second
ward, Brttle (M-eek. again nppeare<l before the board of county canvaK.sers: is
that correct? — ^A. Yes, sir.
Q. At that second appearance of that election board before your board of
county canvassers, was the ballot box produce*! before your board by that elec-
tion board? — A. It was.
Q. When was that ballot box by that election board of that precinct in Bat-
tle Creek a second time produced before the board of county canvassers?— A.
I think the date of that is here [referring to book]. The 19th day of Novem-
ber, 1912.
Q. Now when that ballot box was brought before your board of county can-
vassers by that election board, you opened it? — ^A. I did.
Q. Did you find anything in that ballot box besides the ballots?— A. We found
a few scraps of paper, but none of them were the figures from which this report
was corrected.
Q. The first time I am referring to.— A. No. sir; we didn't find anything:
we took the tickets.
Q. Was there anything else in the box besides the tickets the first time you
opened the ballot "box that you noticed or found?— A. Well, these scrape of
CARNEY VS. SMITH. 137
paper In the bottom we didn't molest, didn't look for; we didn't think there was
anything there we wanted to see.
Q. Did you find any tally sheet or poll book? — ^A. No, sir.
Q. Or statement book in that ballot box the first time your board of county
canvassers opened it? — ^A. No, sir.
Q. Was there anything put back in that ballot box when the box was before
your board of county canvassers other than what you took out of it when you
opened it oi? this first occasion, when the ballot box came before the bimrd of
county canvassers? — A. Not to my knowledge.
Q. What was done with the ballot box when the ballots were placed In It that
first time? — ^A. It was sealed and placed in the hands of the city clerk at Battle
Creek.
Q. Was the ballot box locked before being sealed or after being sealed, or
locked at all on that first occasion when before the board of county can-
vassers?—A. I couldn't say; I don't think it was locked.
Q. You don't know? — A. I don't know.
Q. Now, when your board of county canvassers first met, November 12, 1912,
to canvass this second precinct of the second ward of the city of Battle Creek
were Exhibits 41, 42, and 43, so far ns your record shows and those exhibits
show anything with reference to the office of Representative in Congress,
then in the condition that they are now here or not Ihanding witness ex-
hibits! ? — A. No, sir; thej' are not. Your question was when we first met?
Q. Yes; when they first came into the possession of the board of county can-
vjiiaaers from the county clerk's office whether they were then in the same condi-
ticm that they are at this time? — ^A. No, sir; they were not.
Q. Referring again to Exhibit 42, tally sheet. of the general election held
on November 5, 1912, in the second precinct of the second ward, city of Battle
Creek, I notice that opposite the name of John M. C. Smith — opposite the head-
ing entitled " Representative in Congress," and opposite which entitling '* Repre-
sentative in Congress" John M. C. Smith's name appears, and under the head-
ing, opposite the name of John M. C. Smith, which heading is "Total straight
votes," there now appear to be the figures 66. State whether, when this exhibit
came into the possession of the board of county canvassers when it first met,
before the election board appeared before your board of county canvassers, those
flares 66 were there in that place? — A. They were not.
Q. Opposite the name of John M. C. Smith, under the heading " Total split
votes," I notice the figures 31. You may s'ate whether when your board of
canvassers first came into possession of this exhibit from the county clerk's
office the figures 31 were In that place where they now are. — A. They were;
yes, sir.
Q. Opposite the same name, John M. C. Smith, Representative in Congress,
under the heading "Total vo'^es received," I notice the figures 31 are crossed
out. Were those figures crossed out when you first came into the possession
of this exhibit as a member of the board of county canvassers? — A. They were
not ; no, sir.
Q. Were the figures 31 in that column there when you first came into i)osses-
slon of this Exhibit 42?— A. They were.
Q. I notice right over the figures 31 in that column " Total votes received."
opposite the name of John M. C. Smith, now appear the figures 97. Were those
figures in that column opposite that name when this Exhibit 42 firs*^ came
into possesssion of your board of county canvassers? — A. They were not; no,
sir.
Q. When were the figures 31 in that column of '* Total votes received," oppo-
site the name of John M. C. Smith, crossed out? — A. On the 19th day of No-
vember.
Q. Who put the figures 97 in that column last Inquired about, do you know? —
A. One of the members of the election board of said precinct.
Q. Do you know what member? — A. I do not.
Q. That crossing out of the 31 In that column and placing in the column of
the figures 97 was done, you say, on the 19th day of November, 1912?— A.
Yes. sir.
Q. Did your board of county canvassers say to that board that those changes
were sanctioned? — ^A. Yes, sir.
Q. Opposite the name Claude S. Carney, Representative in Congress, under
the heading "Total split votes," I notice 23. Were those figures in there
38 there in that place when Exhibit 42 first came into the possession of your
board of county canvassers? — A. They were not.
138 CABNBY VS. SMITH.
Q. When were those figures 38 placed in that column? — A. On the same
day — the 19th day of November.
Q. Oi)iK)slte the nnnie of Clnude S. Carney, Representative In Congrew, under
the heading "Total split votes," I notice 23. Were those figures In there
when your board of county canvassers first got this Exhibit 42? — A. They were.
Q. Opi)08lte the name of Clfiude 8. Cnmey, under the beading "Total
votes received,'* I notice the figures 23. Were those figures In there when
your boiinl of county cunvassers first got Exhibit 42V — A. They were.
Q. I notic»e that there are lines drawn across the figures 23. When were
those lines drawn across those figures on Exhibit 42? — ^A. On the 19th day of
November.
Q. I notice In the same column the figures 23 over the figures 61. Were
those figures in there when your board of county canvassers first got Exhibit
42?— A. They were not.
Q. When were they put in there? — ^A. At the sjime time — on the 19th of
November.
Q. Was there, at the time your board of county caiivapsers made the ohaupes
to which 1 have just referred In Exhibit 42, any contest made l>y writing or
otherwise before your board of coi?nty canvassers with reference to the office
of Representative in Congress? — A. Nothing in writing.
Mr. Frankhauseb. I object to the question as assuming that his lH>ard made
the change. I understand the election board made the change. I want the
c»bjection to appear before the answer.
The Witness. By our order.
Q. There was no contest on through which contest your l)oard of county
canvassers assumed to recount the ballots, was there, at that time? — A. Well,
1
Q. (Interrupting.) No petition was filed before your board of county cau-
vassers for a recount of those bnllots? — ^A. No, sir.
Q. With reference to the office of Representative in Congress? — A. No petition
was filed.
Q. No x)etition presented l>efore your board of county canvassers to that
effect; thnt is, to have a recount of the ballots for the office of Representative
in Congress? I mean of the votes cast at the November 5, 1912, election? —
A. No written contest — no written demand of contest — was filed.
Q. These changes in this Ehchiblt 42 which you have testified about with ref>
erence to the office of Representative in Congress were not made when that
election board first came before your board of county canvassers? — A. Not on
this book ; they were made on the other book.
Q. What other book? — A. One of the statements — one of the statements — the
first time. We made the figures in red ink. This is in black.
Q. You mean the figures in Exhibit 42 by this one?-— A. Yea, sir; 42.
Q. On Exhibit 42 these changes were not made in these figures until Novem>
ber 19?— A. No, sir.
Q. When that election board was first before your board of county canvassen^
did you make any changes on the statement book. Exhibit 43. so far as the
office of Representative in Congress is concerned? — ^A. We did. This is 43?
Yes, sir ; we did.
Q. Now, I call you attention to Ebchlbit 43, which is the statement book of
the general election held November 5. 1912, in the second precinct of the second
ward of the city of Battle Creek, Calhoun County, to imge 7 of that exhibit,
:»nd I notice there that, under the office of Representative in Congress, apiwar
the names of John M. C. Smith and Claude S. Carney, the names John M. C.
Smith and Claude S. Carney being written in black ink ; and opiwsite tlie name
of John M. C. Smith there is written in black ink 31. Is that correct? — ^A. That
is as the book appeared when it firpt came to us.
Q. Then appears the name John M. C. Smith, " Votes received," 31, and the 31
is written out in writing? — A. Yes, sir.
Q. Opposite the writing 31 and opposite the name of John M. C. Smith are
the figures 31?— A. Yes, sir.
Q. That is correct?— A. Yes, sir.
Q. Was there anything else on that line opposite the name of John M. 0.
Smith when you first got that Exhibit 43 before your board of county can-
vapsers? — ^A. There was not; no, sir.
Q. The name Claude S. Carney is written in ink under " Office for Repre-
sentative In Congress" In this Exhibit 43?— -A. Yes, sir.
CARNEY VS. SMITH. 139
Q. Opposite Claude S. Carney's name appear In writing the words " twenty-
tliree"? — A. Yes, sir.
Q. Opposite the writing 23» opposite the name of Claude S. Carney, also
appear the figures 23 in black ink? — ^A. Yes, sir.
Q. Did anything else appear on that line where Claude S. Carney's name
appears on this exhibit when Exhibit 43 first came before your board of county
CHDVflsaers? — A. No, sir.
Q. I call your attention now to this Exhibit 43 on page 7, oi)i)osite the name of
John M. C. Smith, and next after the writing ** 31," written out in full in black
ink, to be written in there in red ink, the figures 97 followed by a dash and
followed by the figures 66. When were those figures 97-66, the figures 66, placed
opposite the name of John M. C. Smith on this Exhibit 43? — ^A. November IS.
Q. On this Exhibit 43. opposite the name of, or on the line rather, that Claude
S. Camey*s name appears under '* Office for Representative in Congress,'* an<|
after the word "twenty-three" appetir in red ink the figures "61" — then the
figures "38." When were those figures written in there on that exhibit opix)-
slte the name of Claude S. Carney? — A. On the 13th day of November.
Q. Those figures opposite Claude S. Carney's name to which I have Just re-
ferred, were they or not in that l>o<)k in red Ink when Exhibit 43 first came
into the possession of the board of county canvassers? — A. They were not ; no^
8ir.
Q. Were those figures " 97 "-66 opposite the name of John M. C. Smith
uuder the heading "Office for Representative in Congress" in there, in thlR
exhibit when this Exhibit 43 first came into the possession of your board of
county canvassers? — A. They were not; they were not in.
Q. Who made these figures in red ink, to which I have referred here in
which appears opposite the names of John M. C. Smith and Claude S. Carney
"Oflice Representative in Congress" in this Exhibit 43?— A. Ray E. Hart„
county clerk.
Q. Who direc*ted Ray E. Hart, county clerk, to put those figures in that
Bxhibit 43 in red ink, to which I have called your attention? — A. Why, I
rather think the canvassing bonrd directed that to be put in in red ink.
Q. Where did you get the information from — where did the boHrd of county
canvassers get the information from that caused your board of county canvaHserHt
to place those figures that are in retl Ink on Exhibit 43, in that exhibit? — A*
From the rolls that were taken out of the ballot box marked with a num-
ber and letter; that is. for illustration we took a roll out of the box and it
was marked "6BR" and another one
Q. (Interrupting.) Roll of what? — ^A. Roll of ballots: we supposed they
were ballots, we didn't oi)eu them. Another one was marked "3ST)."
Q. The roll that was marked **3SD," what was that roll; do you know?
You didn't open it. did you? — A. No. sir.
Q. You don't know whether ballots or not. do you? — A. No, sir.
Q. So you took your information from some figures that were on a roll of
paper that was in the ballot box? — A. Yes, sir. I want to make a correction
In my testimony to this effect, that when the ballot box was first brought be-
fore the board of county canvassers by the election board of the second pre-
cinct of the second ward of the city of Battle Creek I instructeil the election
board to oi)en the ballot box and I think one of the menihers of the election
board opened the l)allot box and that I did not open It myself.
Q. When you first took the ballots out of the ballot box in question— that is»
when your board of county canvassers had that box opened and the ballots were
taken out — there was no count made in the presence of the board of county can-
vassers of the ballots contained in that box? — A. No, sir.
Q. All the ballots were taken out of the box. however, the first time the bal-
lot box was brought before the board? — A. All the rolls of ballots were taken
out
Q. Were the rolls of ballots untied? — A. No, sir.
Q. Were they tied up in rolls? — A. Yes, sir.
Q. So that all the information you got then out of that ballot box there, be-
fore you took from it, you obtained from some figures that were on some of
those rolls that were taken out of the ballot box? — A. Yes, sir.
Q. And from the figures that were on the back of those rolls, the first time
yott took those ballots out of that ballot box before your board of county can-
vassers, yon put these red figures opposite the names of John M. C. Smith and
Claude S. Carney on this Exhibit 43. did you?— A. Yes. sir; they were put
there. I didn't ppt them there.
140 CABNEY VS. SMITH.
Q. They were put there by Ray E. Hart?— A. Yes, sir: as clerk of the bonnl
t)f county canvassers.
Q. Mr. Hart was at that time county clerk of Calhoun County?— A. Yes, sir.
Q. His politics are Republican? — ^A. Yes, sir; I expect so.
Q. He was elected as county clerk on the Republican ticket, was he not, for
the term he was then acting or filling? — A. Yes, sir.
Q. Did you at the time this ballot box first came before your board of county
canvassers, or at any time before this ballot box came before your board of
county canvassers the second time, make any corrections on Exhibit 42 opposite
the names of the candidates for Representative in Congress? — ^A. No, sir.
Q. Was Claude S. Carney a candidate for Representative in Congress on the
Democratic ticket at that November 5, 1012, election; did he come before your
board of county canvassers at any time at its meeting? — ^A. Yes, sir; he did.
Q. When first?— A. Why, I think the day following this 13th day of Novem-
ber; I think it was the next day.
Q. These figures on the statement book. Exhibit 43, which api)ear there In
red ink, to which I have referred in previous questions, which a])i>ear in red
ink opposite the name of Claiude S. Carney opixjsite the " Office of Representative
in Congress," had been placed upon this Exhibit 43 before Mr. Carney came
before your board of canvassers? — A. Yes, sir.
Q. Now, at that time when Mr. Carney came before the board of county
canvassers he made an objection, didn't he. to your board of county canvassers
making any change in the figures in the statement book. Exhibit 43? — A. Why.
be objected to the source of information we made the change on.
Q. He also objected at that time, didn't he. that your board of canvassers
were not the proper tribunal before which any change could be made in the
returns from the election board of the second precinct, second ward of Battle
Oreek?— A. I think he did; yes, sir.
Q. Now. when this ballot box came before your board of county canvassers
the second time, that was on the 19th day of November, 1912? — A. Yes, sir.
Q. Was that ballot box opened again? — ^A. It was.
Q. Who opened it? — A. Why, I think the same people — that Is, the election
board.
Q. The election board that had acted in holding the election in that precinct
nnd ward? — A. Yes, sir.
Q. By whose direction, if by anyone's, was that ballot box opened at that
time? — ^A. By the direction of the board of county canvassers.
Q. At whose request? Who requested it to be opened at that time? — A. Well,
1 guess I will have to say Congressm-n Smith.
Q. Was John M. C. Smith here at that time?— A. Yes, sir.
Q. The same Smith whose name fppears here as a candidate for the office
xtt Representntlve in Congress? — A. Yes. sir.
Q. He w^as before your board at that time? — A. Y'es, sir.
Q. At the time that ballot box was opened the second time before your board
x>f county canvassers? — A. Yes, sir.
Q. After the ballot box had been taken away from the board of county
canvassers, after it first came here, who requested the election board of the
second precinct of the second ward of Battle Creek to again produce thflt
ballot box before your board of county canvassers? — ^A. I don't understand
the question.
Q. Y'^ou had the ballot box come liefore the board of county canvassers tlie
>iecond time?— A. By order of tlie board of county canvassers. ^
Q. At whose, if anybody's, request did the board of county cjinvassers request
that that ballot box be produced befoi-e it a second time? — A. The representa-
tive of Congressman Smith.
Q. Who made that request?— .\. Why, I think that is the gentleman.
Q. Give his name. — A. John C. Davis.
Q. Who was the other gentleman here at that time?— A. Mr. Huggett, of
rharlotte.
Q. Was (ieorge Huggett, of Chnrlotte, here at that time?— A. This gentleman
isays that was his name; I don't know what his name was.
Q. Do you understand that the name of the other gentleman who was here
With John C. Davis was Mr. Huggett of Charlotte, Mich.?— A. I couldn't an-
swer positively; Mr. Davis says that was the man; I know there was a man
here from Charlotte; he was a stranger to me, but his name has passed from
tne, so I c(nildn't say.
Q. John C. Davis lives where? — A. In Battle Creek.
CARNEY VS. SMITH. 141
Q. Was he, so far as you know, connected with any political organization in
the county of Calhoun at the time of the November 5, 1912, election?
Mr. Mati^akd. We object to that as incompetent and immaterial.
The Witness. I understand so.
Q. What?— A. He was a Republican.
Q. Now, who came here with the ballot box the second time before the board
of county canvassers? — A. The city clerk of Battle Creek and the three mem-
bers of the board who signed this report.
Q. That is. of the election board of this precinct, do you mean? — A. Yes, sir;
you will find it on the book.
Q. What was the city clerk's name? — A. Thomas Thome.
Q. Was he a member of the election board where Harry Christian, F. C,
Christian, and W. D. WMlson were? — A. Yes, sir.
Q. Who else if anyone, came with these gentlemen you have mentioned at
the time that ballot box was brought the second time before the board of
county canvassers? — ^A. I don't know of anyone else.
Q. When did John C. Davis get here? — ^A. He was here.
Q. Did he come with the men who brought the ballot box? — A. I think he
was here before they came.
Q. Was Congressman Smith here at the time the ballot box came or did he
come in at the srme time the ballot box was brought here? — A. He was here
before; he came here in the morning.
Q. Now, when did you request the bringing of this particular ballot box
before the board of county canvassers the second time? How long before
it came here the second time? — ^A. Why, in the forenoon, I think, they were
sent for and they appeared in the afternoon at 1 o'clock. They appeared that
afternoon. Those little details I can't remember. I think it was ordered in
the morning and brought here in the afternoon.
Q. Was that box brought over here or not — ordered brought over here by
the l)oard of county canvassers after a request had been made to your board
to have it brought here? — A. It was; yes, sir.
Q. That request to have it brought over here the second time was made by
whom? — ^A. Why, by the representative of Mr. Smith.
Q. Do you remember who made the request? — A. I do not.
Q. Mr. Smith was here before your board when that request was made? — A. I
think so.
Q. Who were the gentlemen here whom you say were the representatives of
Mr. Smith at the time that request was made? — A. Mr. Davis and a gentleman
from Charlotte — Mr. Huggett— and Mr. Smith.
Q. On a request made by those gentlemen to your board of county canvass^
ere, you, the board of county canvassers, ordered that ballot box to be
a second time brought before the board of canvassers? — A. Yes, sir.
Q- State whether that ballot box was or was not opened the second time
before your board of county canvassers in the presence of Mr. Davis, Mr. Hug-
gett, and Mr. Smith, the latter a candidate on the Republican ticket for Repre-
sentative in Congress? — ^A. Yes, sir.
Q. Was Claude S. Carney here at that time — the candidate for Representative
la Congress on the Democratic ticket? — A. He was not; no, sir.
Q. Was there any representative before your board at the time this ballot
box was opened the second time, any representative of Mr. Carney's present
before the board, that you know of? — A. The chairman of our Democratic
committee was present.
Q. He was the only man who was present, besides those you have men-
tioned and your board and the other men who brought the ballot box, and the
city clerk of Battle Creek, at that time? — A. I think there were more present
in the room.
Q. Mr. Carney's supporters, do you mean, or more men? — A. More men.
Q. Was tliere any notice given to Mr. Carney by your board of county can-
vassers that the ballot box would be produced before the board of county can^
vassers that second time? — ^A. No, sir; not from the board, anyway.
Q. Did any such information come to your board — that Mr. Carney had been
notified that this ballot box was going to be opened the second time by your
board?— A. No, sir.
Q. Now, were there any arguments made before the board of county can-
vassers at the second opening of that ballot box with reference to ch.mging
these figures, as they were contained in black ink, on these election returns
142 CARNEY VS. SMITH.
from that second precinct of the second ward of Battle Creek? — A. No arpi-
inents: no, sir.
Q. Did the prosecuting attorney of Calhoun County appear before the board
t)f county canvassers at that time? — A. Not the second time; no, sir. He ap-
peared before the board the first time.
(\Vhereuix)n a recess was talceu until 1 o'clocli p. m., Thursday, March 7,
1913.)
GEORGE W. SCHNEIDER was recalled and further testified on behalf of
the contestant, as follows:
Direct examination by Mr. Adams:
Q. I call your attention now to this book produced by the deputy county
t?lerk and marked on the back, " Record of elections, Calhoun County," to page
132 and ask you to examine that and tell me whether that is the finding of the
hoard of county canvassers of the votes cast for the different candidates for
^Representative in Congress at the November 5, 1912, election, as determined
up(>n by your l>oard of county canvassers of which you were a member? —
A. Yes, sir.
Q. I call your attention now to this book last referred to, to page 132, under
the bending '* Statement of votes given in the several townships and wards in
the county of Calhoun at the general election held on Tuesday, November 5,
1912/* under the heading also "Representative in Congress" and ask you to
rend from that book juid tell me what that book shows as to the number of
votes cast In the second precinct of the second ward. Battle Creek, for John M. C.
Smith, for Representative in Congress. — A. Ninety-seven votes for John M. C.
Smith and 61 votes for Claude S. Carney.
Q. When were those figures that you have just read put upon this page of
this book? — A. Well, that was during the time of the sitting of the board
of county canvassers.
Q. Were those particular figures put upon thnt 'particular book which you
have just read from before or after the ballot box was produced before the
board of county canvassers of Calhoun County the second time?
]Nfr. Maynapd. That is objected to as incompetent and immaterial.
The Witness. After.
Q. These figures on this book to which your attention has been called and
trom which you have just read were put on that book and taken from the figures
that are in red ink in Exhibit 43. the statement book of the general election
held in the second precinct, second ward. Battle Creek, County of Calhoun, were
they not? — A, They were.
Q. They were taken — the figures you have just read, from this record of
elections on page 132 — were taken from the figures which were placed on Exhibit
43, })fter your board of canvassers convened, were they not? — A. Well, yirhat
do you mean after the board of canvassers convened?
Q. After they convened? — A. Yes, sir; it was between the 12th of November
and the time they adjourned.
Q. If you had a canvass of the vote for John M. C. Smith for Representative
in Congress as that vote wns registered and recorded in the statement of votes
In the book entitled " Statement Book of the General Election held November
5. 1912," Exhibit 43, there would have appeared upon this record of elec-
tion, page 132, under the name of John M. C. Smith, the figures " three " " one,"
or 31, in place of the figures 97.
Mr. Fellows, We object to that as calling for the conclusion of the witness.
The Witness. Yes, sir.
Q. If you had canvassed the vote opiiosite the name of Claude S. Carney, as
contained In the statement book of the general election held November 5, 1912,
opposite the name of Claude S. Carney, as the figures were In that last-named
exhil)it nt the time thnt this I^ithiblt 43 came into the hnnds of the board of
county canvassers, there would have appeared on this book, record of elections,
page 132, under the name of Claude S. Carney for this particular precinct in
question, the figures " two " " three," or ^, in place of the figures 61, which
are now shown to be under the name of Claude S. Carney for that i^artlcular
precinct, in your canvass of the votes?
Mr. Fellows. We object to that as calling for a conclusion and that the
record is the best evidence.
The Witness. Yes, sir.
OABNEY VB. SMITH. 148
Q. So when you made your canvass of the votes cast for John M. C. Smith
as Represent!' tive in Congress and for Clnode S. (^arney. Representative in
I'ongress, you did not canvass that vote for those two candidates on the returns
as they were contnined in Exhibit 43, when that exhibit first came into the
hands of your board of county canvassers, did you? — A. No, sir.
Q. The canvass you made then finally for those two candidates for the ofllce
of Representative in l^mfrreps was made upon flfnires which your board of
county canvassers caused to be made in this return of this election board of
this particular precinct, and made rfter that return was made and filed with
the county clerk of Calhoun County? — A. Yes, sir.
Q. The canvass of that vote for the otflce of Representative in Congress, as
far as this second precinct In the second ward of the city of Bat le Creek is
wncemed, was made, was It not, upon figures that you found upon some rolls
of ballots or papers that were taken from the ballot box of th:)t election pre-
cinct when that ballot box was before and was opened in the presence of the
board of county canvassers at that meeting mentioned? — A. No: I think not
Q. What were those figures made from — your final figures? — A. Why. the
board settled upon those figures after 'he second calling of the election board
to Marshall, and those figures were found upon a blotter that was In the box ;
that was made by one of the election clerks.
Q. That blot er was no part of any of the returns or any of the records, as
far as you know, that the statute of the State of Michigan required the election
board to make out and put in the ballo* box? — ^A. No, sir.
Q. It was not, was it? — ^A. It was not.
Q. It was not signed by anybody? — A. No, sir.
Q. Was there any statement book, tally-sheet book, or ik>11 book in that
ballot box that you found, or your board found, at either of the times when
this ballot box was opened and the ballots taken ou' In the presence of the board
of county canvassers? — ^A. I think there was nothing found that would lead UB
to any result.
Q. No; that is not the question. — ^A. There was no statement book; the
board
Mr. Fellows. I object to counsel interrupting the witness before he has com-
pleted his answer.
Q. The question Is specific as to whether or not any one of ♦heae three named
books that I mentioned in this question were found in the ballot box at either
of those meetings when the ballot box was before your board of coun'y can-
vassers, the statement book, tally-sheet book or the poll book, either or any of
them. In the ballot box at those *imes? — A. I don't think there was, and still
there might have been a tally sheet, but I do not think there was: there was
no statement book; that I am positive about. I didn't see any book there, any
regular book, that we could acquire any figures from to base our figures on
aside from the blotter.
Q. Describe this blotter. — ^A. It was a little piece of paper, perhaps 10 Inches
square; one of the election commissioners said he made It while they were count-
ing the ballots, and he thought there would be Republican, 50 straights and 31
splits, and the Democrat, which was next on the ticket, 38 straights and 23
splits, and so on down through the ticket.
Q. Was that blotter slened when you found it in the ballot box — did It have
the signatures of anybody upon It? — A. No, sir.
Q. In making your canvass of the vote, upon w^hat figures did you make your
canvass? — A. Upon the figures found on that blotter.
Q. Then the figures In this sta ement book which are In red Ink opposite the
name of John M. C. Smith and under the name of Claude S. Carney, Repre-
sentative In Congress, both figures in red ink opposite Mr. Carney's name, I
mean, were not made from that blotter? — A. No. sir: they were made from the
figures tha were on the rolls of ballots taken out of the ballot box.
Q. And from the figures that you obtained from the rolls of ballots taken out
of that ballot box and from the figures on that blotter hat was taken out of
that ballot box by the board in the presence of the board of county canvassers,
did you or not from those figures determine your canvass of the votes for the
office of Represen atlve In Congress as cast at that November 5, 1912, election
in the second precinct of the second ward, Battle Creek, Calhoun County,
Mich.?--A. We did.
Q. Now, the figures you read from this record of election, Calhoun County,
page 132, under the name of John M. C. Smith and under the name of Claude
S. Carney, opposite the second precinct, second ward. Battle Creek, Mich.,
144 ' CARNEY VS. SMITH.
namely, 97 under name of John M. C. Smith and 61 under the name of Claude
S. Carney, were those figures or not the final canvass of the votes for those two
eandidntes that were cast in that precinct at the general election held November
5, 1912?— A. They are.
Mr. Adams. I off'er in evidence this record of elections, so much of page 132
thereof which shows the vote for John M. 0. Smith and Claude S. Carney,
respectively, as canvassed by the board of county canvassers of Calhoun County
of the vote cast in the second precinct of the second ward of the city of Battle
Creole, Mich., at the general election held on Tuesday, November .5, 1912. I
offer In evidence Exhibits 40, 41, 42, and 43.
Mr. Fellows. Is it understood the exhibits offered now are from the county
clerk's otHce?
Mr. Adams. Yes; I proved that.
Q. This record of election which you have referred to, page 132, state whether
or not that was the final canvass of the board of county canvassers of Calhoun
County, Mich., of the votes for the candidates for Representatives In Congress
at this November 5, 1912, election in the second precinct in the second ward
of Battle Creek. — A, Yes, sir.
Mr. FEI.LOWB I make the suggestion — I don't know whether any arrangements
have been made or whether it is understood that these original exhibits are to
be forw^arded with the testimony when so completed. I make the inquiry so
we can have a record of it and find out what the understanding of counsel is.
I assume that these being public records there is some question about taking
them out of the jurisdiction of the court. That Is the only reason why I make
the inquiry.
Mr. Adams. There is some question about that.
Cross-examination by Mr. Maynard:
Q. Mr. Schneider, the canvassing board met the 12th day of November lust to
canvass the votes for all the officers voted for at the election held on November
5, 1912?— A. Yes, sir.
Q. When you met you said that the county clerk called your attention to some
discrepancy in the returns from the second precinct of the second ward of
Battle Creek?— A. Yes, sir.
Q. Did you have any other returns there before you besides those that were
submitted by the county clerk? — A. No, sir.
Q. Did you receive those directly from the judge of probate? — A. Yes, sir;
we had some from the judge of probate's office and the county clerk's office.
Q. Had them both?— A. Yes, sir.
Q. Did you compare them? — A. Yes, sir.
Q. You found them to compare with each other? — A. Yes, sir.
Q. Did they also contain the returns of the vote for President and Vice
President of each party? — A. Yes, sir.
Q. Do you know how many parties were named on that ticket in those returns
for President? — ^A. Six — Republican, Democratic, National Progressive, Prohibi-
tion. Socialist and Socialist Labor.
Q. I win ask you to look at Exhibit 42 and see what was the general vote cast
for the presidential electora
Mr. Adams. Objected to as irrelevant and immaterial.
Q. Take the first one.— A. Republican, 96.
Q. Are there any more for the Republican electors for President? — ^A. Yes,
sir ; 93. They are all 93 except one, and that is 94.
Q. How many votes were cast, as shown by that exhibit, for the office of
Vice President?— A. It Is just the electors, that is all, that voted for the national
ticket.
Q. The next Is the Democratic electors for President? — ^A, Yes. sir.
Q. How many votes were cast for the Democrats? — A. The first one
received 67.
Q. Any more? — A. The balance of the 15 are 56.
Mr. ^Vdams. I object to that as Irrelevant and immaterial and move to strike
it out.
Q. State the next one. — A. The next officer on the ticket is the Prohibition
electors, 4.
Q. The next ticket?
Mr. Adams. Objected to as irrelevant.
A. Socialist, 108.
Q. The next ticket?
OABNET VS. SMITH. 145
Mr. Adams. Objected to as irrelevant and immaterial.
A. Socialist Labor, 18.
Q. The next is the National Progressive Sectors?
Mr. Adams. Objected to as irrelevant and immaterial.
A. The National Progressive electors 91 all through; every man gets 91.
Q. What is the next? — A. Governor.
Q. How many?
Mr. Adams. Objected to as irrelevant and immaterial.
A. The original returns showed 31.
Q. Does thsit agree with the returns that were given originally for John M. C.
Smith?
Mr. Adams. Objected to ns incompetent and immaterial, not the best evi-
dence, and calling for the conclusion of the witness.
A. Yes, sir.
Q. The next officer?
Mr. Adams. The same objection.
A. Ferria
Q. What was his vote? — ^A. Thirty-two.
Q. As originally returned? — A. As originally returned.
Q. (Jive the vote of the next officer as originally returned. — A. J. B. Ij^-
land, 4.
Q. On what ticket?
Mr. Adams. In accordance with the original returns of what?
Witness. Of course these figures were made later. These figures were made
later; in the original returns that was blank.
Q. In any of these where there was no split tickets it is blank?
Mr. Adams. How does he know there were no split tickets? I object to It.
Mr. Maynard. I will withdraw that question now.
Q. Give them to us right along down. — A. The Socialist ticket, 20.
Q. What is the next?
Mr. Adams. The same objection.
A. The National Progressive ticket, 27.
Q. Go on.
Mr. Adams. If it may be understood that I have the same objection to all
this without making specific objections, on the ground that it is irrelevant and
inunaterial, if you will concede that he may go on.
Mr. Maynard. All right.
A. Socialist Lal)or, 4; Republican lieutenant governor, 34; Democrat. 19;
Socialist, 22; National Progressive, 34; Socialist Labor. 4. Secretary of state:
Republican, 33; Democrat, 16; Socialist, 22; Socialist Labor, 4; National Pro-
gressive, 3S. State treasurer: Republican, 35; Democrat, 19; Prohibition, 0;
Socialist. 22; Socialist Labor, 3; National Progressive, 33. Auditor general:
Republican, 35; Democrat, 18; Prohibition, 0; Socialist, 22; Socialist Labor, 4;
National Progressive, 34. Attorney general: Republican, 35; Democrat, 18;
Prohibition. 0; Socialist, 22; Socialist I^bor, 4; National Progiessive, 34. Com-
missioner of the State land office: Republican, 35; Democrat, IS; Prohibition,
0; Socialist. 23; Socialist Labor, 3; National Progressive, 34. Justices of the
supreme court: Republican, 36; Demwrat, 18; Prohibition, 0; Socialist, 22;
National Progressive, 35.
Justices of the supreme court, term ending Dt^ccmber 31, IJHT: Republican,
35; Democrat, 19; National Progressive, 35. Representatives in Congress at
large: Republican, 36; Democrat, 19; Prohibition, 0; Socialist, 22; National
Progressive, 30. Representative in Congress: Rei)ublican, 31; Democrat, 23;
Socialist, 21; National Progressive, 22. State senator: Republican, 36; Demo-
crat, 20; Socialist, 22; National Progressive, 31. Representative in State leg-
islature: Republican, 26; Democrat, 31; Socialist, 10; National Progressive, 34.
Judge of probate: Republican, 3,'>; Democrat, 33; National Progressive, 21.
Sheriff: Republican. 80; Democrat, 11; Socialist, 10; National Progi-esslve, 13.
County clerk: Republican, 34; Democrat, 30; S<x?iallst, 21; National Progres-
sive, 22. County treasurer: Republican, 41; Democrat, 18; Socialist, 20:
National Progressive. 31. Register of deeds: Republican, 42; Democrat, 10:
Socialist, 25: National Progressive, 24. Prosecuting attorney: Republican, 54;
Democrat, 32: National Progrej-slve. 19. Circuit court commissioners: Repub-
lican, 41 and 3f>: Democrat, 19 and 18; Socialli-t, 22 and 22; National Progres-
sive, 31 and 30. Coroners: Republican, 40 and 41; Demotn-at, 18 and IS;
Socialist, 22 and 22; National Progressive, 31 and 31. County surveyor: Repub-
28t)~13 10
146 CARNEY VS. SMITH.
Mean, 89; Democrat, 20; Socialist, 22; National Progressive. 32. Drain com-
missioner: ReiHil)lican. 40; Democrat, 20; Socialisr, 22: National Progres-
sive, 29.
Mr. .Adams. Tills is all under my objection.
Mr. Maynard. Yos, air.
Q. The i-ounty cleric, when he laid before yon this statement, called yonr
• ttontiim to the fnct that there was a discrepancy in the total vote given for
all of these oflloers. from the govenior down, throughout the State, congres-
sional, legislative, and county tickets? — A. Yes, sir.
Q. I show you Exhibit 41 and ask you what the total number of votes
are shown to be cast by the ik)11 book? — A. Three hundred and seventy-five.
Q. Take the tally-sheet book and conmience at the top of page 7 — the office
of governor — when you got the election board to come in here how many votes
did they determine were straight votes cast for that office?
Mr. Adams. I ol^Ject to that as lncomi)etent, irrelevant, and Immaterial for
the office of governor.
The Witness. Why. they reiK)rted 115 votes cast — 114 votes.
Q. The total vote for govenior?
Mr. Adams. I object to that as incomi)etent, irrelevant, and immaterial and
bear say.
The Witness. I don't know as they reported any.
Q. After they corrected It? — A. Did you ask me when the books come here?
Q. No.— A. They said there was 66 straight Republican votes and 31 splits.
Q. On that line opposite the name of Mussulman, were the tallies put down
one at a time, as Is usual In tallying up and in counting votes for any officer?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial and
railing for the conclusion of the witness.
The Witness. Yes, sir.
Q. How many of those tallies were opposite the name of Amos Mussul-
man?— A. Thirty-one.
Q. Just 31 tallies?— A. Y>s, sir.
Q. In blocks of five? — A. Y'es, sir.
Q. They made four straight marks and one mark across the four? — ^A.
Yes. sir.
Q. Making five votes? — ^A. Yes, sir.
Q. Counting those there were just thirty-one? — A. Yes, sir.
Q. That agrees with what they had him, 31 split votes? — ^A. Yes, sir.
Q. Now, take the name of Ferris, how many split votes were tallied to him? —
Thirty-two tallied to him.
Q. Is that carried out as the total split votes? — A. Yes, sir.
Q. Then those tallies are correct for the split votes? — A. Yes, sir.
Q. It was when It cinie to you? — A. Yes. sir; it was also in the column of
the total totes received. This Is the column here of total votes rec^eivetl. This
Is the column here of total split votes and here is the total votes received.
Q. They agree? — A. They agree.
Q. I want it so it agrees with these tallies. — A. You will not find any mark
Sn that statement: this is the final result as written out.
Q. When the county clerk called your attention to this discrepancy on
t\'ery officer after you commenced from the governor down, did you make up
your mind there had been a mistake, did your board conclude there had been
a mistake in the returns?
y^Y. Adams. I oblect to that as lncomi>etent. irrelevant, and immaterial and
falling for the conclusion of the witness as to what the countj- clerk did and
the ccmclnsion of the board of county canvassers in that regard is of no
consequence. Legally it was the day of the board of county canvassers to
panvass the vote under the circumstances In this case, according to the returns
as originally made by the election board making the returns. There was no
authority in the board of county canvassers to call the election board befori
the board of county canvassers and have the ballot box opened or in any
way to correct or change the figures from what they were when the returns
first came before Uie board of county canvassers.
(Last question read.)
A. Yes, sir; we did conclude there was something wrong.
Q. Did you then notify the election board from the second precinct, second
ward. Battle Creek, to appear before you and correct the returns?— A. We did.
Q. Who came before your board?— A. Two members of the election board.
CABNEY VS. SMITH. 147
Q. Do you remember who they were? — ^A. I think one was Mr. Christian
and the other was Mr^ Allen or Mr. Wilson; Christian and Wilson. There
WHS but one Christian came the first time; there were two Christians on the
board ; they were both Republicans — they were all Republicana
Q. When they came here you say they opened under your direction and orders
the ballot box? — ^A, Yes, sir.
Q. Did you find in this ballot box a lot of unused ballots? — A. Yes, sir.
Q. Did you find some ballots in there that were called instruction ballots? —
A. Yes, sir.
Q. Quite a good many lepers in the box besides the votes that were rolled
up? — ^A. Yes, sir.
Q. Now. when you found these votes rolled up, were they tied with a string? —
A. I think so.
Q. Did anyone of you, or was It done there at all by anyone, untying those
bundles or attempting to separate those ballots? — A. No, sir.
Q. You stated that you found some figures on the outside of the rolls,
"I>— 66" or " R — 66"- j'ud so on. I think they asked you what those referred
to. Was there any explanation on behalf of the election board what that
meant?
Mr. Adams. I object to that as iueonu)eteut, irrelevant, and immaterial, and
hearsj'y.
A. Yes, sir; they said that the ones that were " R " were Republican and the
ones that were '* D " were DeraocnUlc. and the ones marked *' C " Socialist, and
"0. L." Socialist Labor, and " N. P." National Progressive.
Q. At that time did they amend their returns to comply with those figures
that were found on the outside of those ballots?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. Yes. sir.
Q. Was there one of the rolls marked " R straight "?
Mr. Adams. Objected to as incompetent. Irrelevant, and immaterial.
Q. One of the rolls or bundles? — A. Well, sir, I don't know whether I gjive
that on my direct examination or not; my im«presftion is that that is the way
it was marked, but I will not swear positively.
Q. "Republican straight, 66?"— A. Sixty-six R, and so on, etc.
Q. And the Democrats, how many of those were straights?
Mr. Adams. I move to strike out the L*^st answer for the reason that it is not
the best evidence; and I move to strike out the other answer as to what any-
thing in that ballot box shows, as far as any figures were written are con-
cerned, as not the best evidence and the conclusion of the witness, together with
the other objection that I have already made as incompetent, irrelevant, and
Immaterial.
Q. Of the Democrats, how many votes were straights? Will you look at the
book you hold In your hand marked with red Ink and see how many votes are
credited as straight votes for the oflSce of Republican governor?
Mr. Adams. What do you menn, as the record came to the board?
Mr. Maynard. No, sir; it appears that these red-ink figures were put on at
their second meeting; I am calling attention to the red figures.
^Ir. Adams. I object to It as incompetent, irrelevant, and immaterial.
(I^st question read.)
A. Well, there is nothing here that Is marked.
Q. Can you tell from that book how many was creilitetl? — A. There is nothing
marked " Straight " or " Split " here; we found 66.
Q. How many were actually straight? — A. Thirty -eight.
Q. How many for the next oflice? — A. Four for the Prohibitionists; 85 for
the Socialists; 48 for the National Progressives; and 13 for the Socialist Labor.
Q. When you got these red figures added there to the record I understand
you that these red figures were made the first day and later you brought the
ballot box here? — A. Yes, sir.
Mr. Adams. What book are you reading from?
A. From Exhibit 48.
Q. Will you compare the total vote given for governor with the total vote
given for the presidential electors?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial ; the
comparison will show for itself.
Mr. Maynard. 1"ou stated this book was not going down there.
Mr. Adams. The figures when once in it is a matter that anybody can tell.
Mr. Fellows. The objections are made, but not ruled on now.
148 CARNEY VS. SMITH.
The Witness. I can give you the figures if you will permit all right here.
Q. How many were given for govenior? — A. Three hundred and sixty-eight.
Q. How many to the Republican governor? — ^A. Ninety-seven.
Q. How many were given for the presidential electors?
' Mr. Adams. I object to it «s incompetent, irrelevant, and immaterial.
A. For the Republican presidential electors, 96 is the largest numt>er.
Q. How many for the Democrat?
Mr. Adams. The same obJe(:tion.
A. The Democrat, the largest number was 57.
Q. The total on Democratic governor is how much? — ^A. Seventy.
Mr. Adams. If this 8j»me objection as iiicompeteut. irrelevant, and Immaterial
to this comparisuju he is going to make can go all the way through without
objecting specifically to every question, I will not make the specific objections.
Mr. Maynard. It is still conceded that may be.
Witness. The Prohibition elect<u's received 4; the Socialist the largest
number of votes for any one of the electors was KKS; for its governor 105.
The largest number of votes cast for the Socialist Labor was 18.
Q. I will ask you now whether that recnird does not show there no splits cast
for the Prohibition candidate for governor? — A. No. sir.
Q. And none for the Prohibition candidate for President. He just had 4
straight votes? — ^A. Had 4 votes.
Q. So where are j'ou reading from there are no splits? — ^A. This shows that
the votes were Inserted, these re<l figures In here; they should not show
"Straights" and "Splits." but we wrote the "Straights" and "Splits" in this
book; the number of Mussulman*s should be written out, the same as there,
thirty-one, total, 31. That should have been the way that book %vas returned to
us, the figures written In there and the final figures out in the total column.
Q. That Is the statement book you are referring to? — A. Yes, sir.
Mr. Fellows :
Q. What I want to get at is what was the total vote for governor after you
made the correction; how does that compare with the 375 votes cast as appears
by the i)()ll book? — A. After being corrected, it was 358.
Q. And the total number of votes cast, as appears by the ik)11 book, was 375 'r —
A. Yes, sir; for governor, 368; for lieutenant governor, 367; for secretary of
state, 3(57; for State treasurer. 308; for auditor general, 367; for attorney
^neral, 367 ; for commissioner of the State land ofl^ice, 367.
Q. Take that last vote you are looking at and see about the split votes and the
total. — A. The attorney general — we gave him 113 splits and 254 straights, mak-
ing a total of 367.
Q. The right-hand column gives the splits? — A. The right-hand column here
gives the figures as received by us originally.
Q. That is, the split tickets?— A. Yes, sir.
Q. The next column is the straights? — A. Yes, sir.
Q. And the left-hand column is the total? — A. Yes, sir. Justices of the
supreme court, one, 353, and the other, 241; Representative in Congress at
large, 348; Representative in Congress, 344; State senator, 346; representative
in the State legislature, 347; judge of probate, 278; sheriff. 351; county clerk,
350; county treasurer, 347; register of deeds, 347; prosecuting attorney, 255:
circuit court conmilssl oners, (596; coroners, (>97; county surveyor, 350; drain
commissioner, 348.
Q. When those returns were brought and were delivered to you In the first
place, they just contained the right-hand column, which is written in black
ink?— A. Yes, sir.
Q. And I hose were the totals? — A. Yes, sir.
Q. No, take the governor, and state how much was allowed to each officer
for each otfice before they wei*e corrected. — A. Governor, 114; lieutenant gov-
ernor, 113; secretary of state, 113; State treasurer. 112; auditor general, 113;
attorney general. 113; commissioner of the State land ofliice, 113; justices of the
supreme court. Ill, and the other, 89; Representative In Congress at large, 107;
Representative in Congress, 107; State senator, 109; representative in the State
legislature, 110; Judge of probate, 80; sheriff, 114; county clerk, 113; county
treasurer. 110; register of deeds. 110; prosecuthig attorney, 103; circuit court
commissioners, 222; coroners, 223; county surveyor, 113; drain commis-
sioner, 111.
Q. These totals you have just read were all that were given any of these
candidates for auj* of these offices you have just mentioned by the original
returns? — A. Yes, sir.
CARNEY VS. SMITH. 149
Q. Wben tills election board came before you, did your board of county can-
vassers try in any way to dictate or compel the election board to make any
particular return on nny office? — A. No, sir.
Q. Mr. Schneider, when the a*^tentlon of your board was first called to this
jrreat discrepancy in the votes, was there anything said by anyone respecting
the office of Congressman at all? — A. No; I don't think so.
Q. It was simply a discussion as to all of these offices being deprived of some
votes that the board thought should be counted for them?— A. Well, the dis-
crepancy was all the way through.
Q. Will yon turn to the office of Ck>ngres8man of this district, to the name
of John M. C. Smith, also the name of Claude S. Carney, and see In the right-
hand column how many votes were credited to John M. C. Smith as tjie split
votes? — A. Thirty-one.
Q. Will you look at the tally sheet of that precinct, opposite his name In
Exhibit 42, and see if there are any tallies opposite his name, and if so, how
many tallies?— A. Thirty-oner I think perhaps I had better rectify my answer
of a moment ago ; of course the board was informed that the office of Congress-
man was the only office that could not apply for a recount of these ballots, ond
they were interested in having theae returns corrected, so that after the can-
vassing board had completed is report if any other candidate for State or
t-ounty questioned the result of the election they could petition for a recount of
this particular precinct, but that ^he office of Congressman wag deprived of
that right; therefore, unless we could make the correction at that time, they
would have to stand as ^he canvassing board reported.
Q. Your efforts were only to obtain the correct statement of the votes In that
precinct?
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial.
A. ITes sir.
Q. The first time the board got together after you got through, you stated
the box was sealed and put back into possessslon of the board? — A. Yes, sir.
Q. As far as yon know they took them back to Battle Creek with them?— A. I
know nothing to the contrary.
Q. Who was it that Informed you that the congressional candidates could
not apply for a recount?— A. It was the general talk among the people; I am
not sure who. „ . , ,«
Q. Did Mr. Carney tell you that when he came here to see you?— A. I will not
ray whether he did or not ; we originally go^ that impression— well, now. If I
were to say who it was I would say Mr. Davis told us that.
Q. At what time?— A. Oh, before we called any of the boards here.
Q. Was he here before you called the board? — A. Yes. sir.
Q. When they came here you directed them to open the ballot box; you say
thev didn't open any of the ballots, however?— A. They did not.
Q. But you took them out and found certain figures on them?— A. Yes, sir.
Q. And from those figures they corrected their return and put this amended
return in red figures here?— A. Yes, sir. « » «. ,
Q. They made a statement at the time to amend the return?— A. Yes, sir.
Q. Is that In that book?— A. These red figures here.
Q. Did they make a statement at the back part of the book?— A. Yes, sir.
Q. Read that into the record.
Mr. Adams. I object to it as incompetent. Irrelevant, and immaterial.
A. (Reading:)
"State op Michigan, County of Calhoun, 88 :
"We do hereby certify that, at the direction of tlie board of county canvass-
ers, we, the inspectors, do hereby make an amwided return, the red-ink figures
indicating the changes made to correct the returns.
" In witness whereof we have hereunto set our hands at the city of Marshall,
this 13th day of November, 1912.
" W. D. Wilson,
" Harry Christian,
" Inspectors.''
Q. The next day after that Mr. Carney appeared before your board?— A. Yes,
sir. ^ ._
Q. And objected to your means of information that led you to change those
flgurefl?— A. Yes, sir,
Q. And on the request of John M. C. Smith, or some one acting in his
behalf, th«i you required the board to come here again?— A. Yes, sir.
150 CARNEY VS. SMITH.
Q. Did tht»y then open the box before your board? — A. Yes, sir.
Q. I<*or the purpose of ascertaining if there was anything in that box whereby
they could make any different return or correct it in any way? — ^A. Yes, sir.
Q. And you say that one of the ln8i)ector8 who was then present found a
blotter or piece of pni^er upon which he claimed to have marlted the votes as he
tallied them?^ — A. Yes, sir.
Q. He produced that? — A. Yes, sir.
Mr. Adams. I move to strike out what the inspector claimed about the figures
on the blotter as incompetent, irrelevant, immaterial, and hearsay.
Q. The box wns sealed when it arrived here at that time? — ^A. Yes, sir; the
second time.
Q. They oi)ened the box the same as before? — ^A. Yes, sir.
Q. Now, from that blotter did they obtain information that led them to make
the second certificate in that book? — A. Yes, sir.
Mr. Adams. I ol)ject to that as lnc<)mi>etent, irrelevant, immaterial, and move
to strike It out.
Q. What exhibit is that in?— A. I think that is in the statement you have
there — it is in that statement book — in the book that Judge Adams has: the
statement is here, the correct figures are in that book.
Q. Read them.
Mr. Adams. I object to it as incompetent, irrelevant, and immaterial.
A. (Reading:)
" State of Michigan, County of Calhoun, as:
"amknded cebtificatk.
"We, the board of election inspectors of the second precinct, second ward,
do hereby certify that, at the request of the board of county canvassers, we
do hereby certify that the figures inserted in red ink are the correct figures
made by this board of election Inspectors, and that the left-hand column of red
figures indicate the total vote receiveil by each candidate. In accordance with the
corrected returns.
" In witness where<»f we have hereunto set our hands at the dty of Marshall,
the 10th day of November, 1012.
** Harby Chribtiaw ,
F. C. Christian,
W. C. Wilson,
'* Inspectors of the Second Precinct, Second Ward.'*
Q. Were the three insi^ectors here present? — A. I'es, sir.
Q. Which one of the inspectors was it that claimed that be made the figures
on the blotter at the time of the election? — A. I couldn't say for that.
Q. Was one of the members that was there a bank officer, a banker, or a clerk
in the bank? — A. One was a clerk in the bank.
Q. Do you know which one that was? — ^A. I think it was one of the Chris-
tian boys.
Q. On information have you learned that Fred C. Christian was connected
with the bank in Battle Creek? — ^A. Yes, sir; he told me at that time he was.
Q. Now, was it Fred C. Christian, to the best of your recollection, who
claimed he made those figures at the time of the election upon the blotter? — ^A.
That I couldn't answer.
Mr. Adams. I object to that as incompetent. Irrelevant and hearsjiy.
Q. When they made this last amended return do you remember that they
made any dlsc-overy or any difference in their figures from what they did on
the second occasion?
Mr. Adams. I object to that as incompetent, irrelevant, immaterial and call-
ing for the conchipion of the witness.
Q. Whether they found out they made a mistake the second time? — ^A. No.
sir; the second time they were called, their figures agreed with those they made
the first time.
Q. Is it not true that when they made the second return also that they did
not comiMire until they got through, went right on and made them independ-
ently of the first figures they made?— A. Why, I think they did.
Q. And when they got through they agreed wltli the figures they had made
the first time?
Mr. Adams. I object to that as incompetent, irrelevant, immaterial, and
calling for the conclusion of the witness.
A. I think they did.
44
GABNEY VS. SMITH. 151
Q. There was no one made a petition for a recount from that precinct was
there, at any time? — ^A. No, sir.
Q. And the ballots were not recounted at .the time? — A. No, sir.
Q. Was there a demand before your board to recount the ballots? — A. No.,
sir.
Q. Did Mr. Carney at the time he was here ask for a recount of the ballots?^
A. No, sir.
Q. To see whether the corrected returns had been made or not? — A. No, sir.
Q. When the board met the second time, was it not made a rule by your board
that yon would not permit any outsider to say a word or make any ar^>
m^it before the board that influenced this corrected return at all?
Mr. Adams. Objected to ns irrelevant and immaterial.
A. Well, I guess I will say no. I wish to make a little explanation there
When the matter first came up we called in some counsel and the board was
satisfied that we did not get as good counsel as we ought to have got. and I
think I made the remark when I was a little bit irritated over what wa«
(»eing done and the delays that were made, that when we wanted some advice
we would try and find someone that knew more about it than we did.
Q. No argument was made at the last time? — ^A. No, sir.
Q. Was it not because the board indicated that they did not want to hear
from outsiders while this was in progress? — A. Yes, sir; I think I made the
remark at the time they came in that we would not exi>ect any interruption
from outsiders.
Q. When you made up this final return, what did you make that from,
from the amended return given to you by the election board? — A. Yes, sir;
the correct returns.
Q. When they corrected those returns, they returned them to you and yon
made up your canvass from that amended return? — A. Yes, sir.
Q. What time did the board of county canvassers adjourn? — A. On the 21st
day of November.
Q. After refreshing your recollection from the last return of this election
hoard, are you able to state that on the right hand side, the figures on each
page contain the split votes and the next column to the left the straight votes.
and the column to the right the figures contained the total votes given for each
office given in Exhibit 43?— A. I am satisfied that is a fact.
Q. The return s ys the left-hand side figures contain the totnl? — A. The right
liand should contain the total; the statement is that the left-hnnd side contains
the total.
Mr. Adams. I object to the statement on the ground that if the certificate is
of any value whatever, shows for itself what the different claims are.
Q. Does it not say that the left-hand coUnnn figures contains the total vote? —
A. Yes, sir; the right in here.
Q. After the last day that the boxes were here before you were the boxes
s&ealed and turned back to the office of the election lK>ard of the second precinct
of the second ward of Battle Creek? — A. Yes, sir.
Q. And all these Imllots were returned with the ballot Iwxes? — A. Yes, sir.
Q. And it was sealed in your presence? — A. Yes. sir; I think so. I rather
think the city clerk sealed it or I did.
Q. Anyway, you sew it done? — ^A. Yes, sir.
Q. You are a Democrat In politics? — A. Yes, sir; our lM)anl of county can-
vassers consisted of two Republicans and one Democrat.
Q. You were the chairman of the board? — A. Yes, sir.
Q. How was the chairman elected? — A. By the board Itself; the l)oard elected
its own chairman.
Q. The other two Republicans voted for you to be chairman? — A. Yes. sir.
Q. What do you s:iy the total vote for T>evant I.. Rogers was. the Socialist
candidate for Congress from this district; of this prec»inct. I mean? — A. The
stniight vote was 85, and 21 si>llts.
Q. For Dingley? — ^A. Forty-eight straights and 32 si)llts, making a total of
150 In the first case and 80 in the second.
Redirect examination by Mr. Adams:
Q. Now, Mr. Schneider, under the head — reading from Exlilblt 4.'^ — of Iiei>-
resentatlve in Congress there will you start in and read all there is in that
paragraph on page 7 of Exhibit 43, Just as it appears in that exhibit, showing
what is in red figures and what Is In black; read It just as It Is? — ^A. (Iteadlng.)
** Whole number of votes given for the office of Rei>reHentatlve In Congress was
152 CARNEY VS. SMITH.
one huu<Ii'ed iind seven. Tliey were iirlven for the follovviug-uaiiied i>er8ons:
(\aHllflnte8' iiHiueH. Votes received to be written out in words at length. John
M. C. Smitli (under the head of candidates' names) under the head of votes
received to be written out in words at length the written words are thirty-one,
opiM)i-'ite John M. C Sniitli's name. The red figures are 97—^. The figure In
tlie final column written in blacic ' put figures in this column ' 31.
" I'nder the Ijead. * Candidates' names,' Claude S. Carney. Under the head
* Vote re<*eived. to be written out in words at length,' twenty three. The figures
in retl ink are 01—38, (in black ink) 23.
" Under the head of * Candidates' names,' Levant L. Rogers. Under the head.
' Votes received,' to be written out in words at length, twenty-one. Red
tigures, 10(> — So (red figures). Black figures, 21.
"Under tlie hend of 'Candidates' names,' Kdwln X. Diugley. Under the he-ad
of • Votes received,' to be written out in words at length, thirty-two. Red figures,
SO— 4S (re<l figures). Rlack figures, 32. Red figures. 344, total vote. Black
figures, 107."
Q. You wii<l you found some unuscl ballots in this ballot box in question
that were tied up in a luuidleV — A. 1 couldn't answer; I don't know. I have
forgotten; I don't think so. I think they were laying on the bottom or top
of the ballot box. I think they were the first thing we took off. There were
some unused ballots and some instruction ballots in different colc»rs.
Q. I wish you would turn to page 16 of Exhibit "43" now In your baud and
read the certificate on that imge which is partly printed and partly written in
black ink. — A. (Reading) —
'• State of Michigan, County of Calhoun, 88 :
*■ We do hereby certify that the foregoing is a correct statement of the votes
given in the second precinct of the second ward of Battle Creek, County of Cal-
houn, State of Michigan, at the general election held on Tuesday, the 5th day
of Novenjber. A. I). 11)12.
** In witness whereof we have hereunto set our hands at the of in said
county and State this 5th day of November. A. D. 1912.
*• F. C. Christian,
"Harry Christian.
" W. D. Wilson.
** Innpectors of Election^'''
Q. I understood you to say on cross-examination that one of the members
of this particular board of Infli)ectors you have been testifying about in this
particular precinct claimed that he had made the figures that were on that
blotter you found In that ballot box? — ^A. Yes, sir.
Q. Did he make any mich a claim as that before the board? — A. Yes, sir.
Q. That he had made those figures on that blotter? — A. Y'es, sir.
Q. That blotter, however, was not signed by the board of inspectors?—
A. No, sir.
Q. Nor by any inspector? — A. No, 8»r.
Q. It did not bave the name of any officer of the election boanl uiwn It?—
A. No, sir.
Q. Your board of county canvassers you stated convened on what date?—
A. The 12th day of November, 1912.
Q. I call your attention to page 132 of the book ** Record of Elections, Cal-
houn County *' and ask you whether thnt is not the page of this record which
contained your final canvass of the vote on Representative in Congress, as cast
at the election held on Tuesday, the 5th day of November. 1012?— A. Yes, sir.
Q. I ask you to read from this page 132 the certificate that is therein con-
tained.—A. (Reading) —
" State of Michigan, County of Calhoun, hs:
" We do hereby certify that the foregoing is a correct statement of the votes
given in the several townships and wards of the said county of Calhoun, in
said State of Michigan, for Representative in Congress and State senator at the
general election held in said county of Calhoun on Tuesday, the 5th day of
November, in the year 1912.
"Dated Marshall, the 21st day of November. 1912.
*• George W. Schneider,
** Chairman of the Board of County Canvassers.
" Ray E. Hart.
" Secretary of said Board of County Canxiassers"
CARNEY VS. SMITH. 158
Q. That certificate, so far as the vote on Representative in Conffress is con-
m-neil, so far as tliis second precinct in the second ward of Battle Creek is
concerned. \vj!s made, and your canvass was made upon those returns ns they
were contained in the^e red figures that you have referred to — in these exhibits
th;>r you have referre<l to, isn't that soV — ^A. Yes. sir.
Q. And that certificate and the figures contained in your canvass to which
that certificate you jus*- read applies was not made upon the returns of the
election board which came Into the hands of your board of county canvassers
in the first instance? — ^A. Not as they were originally received ; no, sir.
Cross-examination by Mr. Matnabd:
Q. They were made up from the returns of that board as they amended
them? — A. As they were corrected.
Q. They corrected them and amended them and turned them over to you In
th:»t condition as they are now shown? — ^A. Yes, sir.
Q. And you made your canvass from that? — ^A. Yes, sir.
Q. You are acquainted with Ray B, Hart, formerly county clerk? — A. Yes,
sir.
Q. He was not a candidate for reelection for county clerk, was he?
Mr. Adams. Objected to as Incompetent, irrelevant, and immaterial and not
the bes' evidence.
A. No. sir.
Q Or for any ofilce at this last election?
Mr. ADA1I8. Objected to as incompetent, irrelevant and immaterial and not
the best evidence.
A. No, sir.
Mabch 8, 1918.
Mr. Fellows. We understand that the township of Climax is the only town-
ship involved in the Kalamazoo County vote. We unders'and that the town-
ship board of Climax is here, and that the ballot box of the township of
Climax is here. I understand that the box is here, and that the township
board of the township of Climax Is here. Mr. Smith does not desire to have
coTinted for him any ballots that he is not legally entitled to, and does not
desire that any votes Mr. Carney is entitled to shall be taken away from him.
Inasmuch as the ballot box is here and the board is here, we will consent to
the opening of the ballot box and a recount of the votes. This may save con-
Blderable time.
Mr. Fraitkhauseb. T^et the record show that this board has been subpoenied
by the contestant and the box brought in by the witnesses.
Mr. Adams. It is stipula*ed that by the consent of both parties to this con-
troversy that the board, having the ballot box here before the commissioner,
may open the same, and that the votes therein contained may be coun'ed
and what the ballots show may be placed upon the record for the consideratlcm
of Congress or the Committee on Elections in this controversy. Upon this par-
ticular office the question is to be made and the vote counted in so far only as
the ballots relate to the office of Representative In Congress.
Mr. Frankhafskb. I think that Is all right.
(Whereupon A. L. Curtis, George Eberstoin, Judson Pierce, and Hubert Bl-
well. members of the Climax election board, af'er being duly sworn to make a
tme and correct recount of the ballots, opened the ballot box and proceeded to
make a recount of the same.)
HUBERT ELWETiL, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestant as follows :
Direct examination by Mr. Adams :
Q. You live in Climax, Kalamazoo County? — A. Yes, sir.
Q. You are supervisor of Climax township in this county of Kalamazoo? — A.
Yes. sir.
Q. Were you such supervisor from the April. 1912, election, and are now and
were at that time when the Novemt>er 5. 1912, general election was held In
Kalamazoo County, In the township of Climax? — A. Yes. sir.
Q. Were you one of the board of election inspectors at that general election
held in the township of Climax, this county? — A. I was.
Q. And acted as such on that board?— A. Yes, sir.
154 CAKNBY VS. SMITH.
Q. Are you the Elwell who signed the election returns of tne vote of that
township of Climax? — ^A. Yes, sir.
Q. For the general election held there November 5 last? — A. Yes, sir.
Q. This Kxhibit 48, presumably the ballot box, before you — state whether or
not that is or is not the ballot box in which the ballots were deposited at the
time and during the election that was held in the township of Climax, on
Novemlier ;">, 1912. — A. It is one of the ballot boxes used at that time, but not
for the general election. We had to use a larger box, and got a sugar barrel.
We headed it uj) and nailed it and cut a slot in it.
Q. Did this Exhibit 48 contain the votes for Representative In Congress that
were cast at the November 5, 1912, election in the township of Climax, Kala-
mazoo County? — A. I think so.
Mr. Adams. Will you concede that Exhibit 49 is one of the statement books
of the election held in this particular precinct on the 5th day of November.
1012. which has been produced by the county clerk?
Mr. Fellows. Yes.
Mr. Adams. I offer In evidence Exhibit 49, which is a statement of the vote
of the general election held on Tuesday, the 5th day of November. 1912, in the
township of Climax, Kalamazoo County, Mich.
Mr. Maynard. Under the stipulation we just made that the board count the
vote in the box, and that that should be placed on the record Is evidence of
what the vote is.
Mr. Adams. This is for the purpose of showing what it was. We have to
show the return to make tlie record ; that Is the only object we oflfer it for — ^to
show there was a mistake there.
Mr. Fbankhauskr. Why can't we say the boai*d retumetl so many for Mr.
Carney and so many for Mr. Smith and shorten the record up?
Mr. Adams. All right.
Q. Now, this book. Exhibit 49, shows how many votes your board returned
as having been determined by your board In counting the ballots for John
M. C. Smith, Representative in Congress. How many votes does it show
there?— A. Eighty-three.
Q. How many votes does it show for Claude S. Carney for the office of Rep-
resentative in Congress, as returned by your election board? — A. Eighty-two.
/ Q. How many does It show to have been returned by your board of Inspectors
for I^evant L. Rogers for the oflBce of Representative in Congress? — ^A. Forty.
Q. How many votes does Ebchiblt 49 show as having been returned by your
board of inspectors for Edwin N. Dingley for the office of Representative in
Congress? — A. Fifty-four.
Q, Mr. Elwell, have you and have the board of inspectors for Climax Town-
ship, Kalamazoo County, Mich., counted the ballots in the ballot box. Exhibit
48, here this morning before the commissioner taking the testimony in this
contest? — A. We have; yes, sir.
Q. I wish you would state what the number of the ballots were that your
board found here on this recount this morning for John M. C. Smith for Repre-
sentative in Congress, as shown by that recount of the township of Climax,
Kalamazoo County, Mich., made this morning. — ^A. Ninety.
Q. I wish you would state what you found the vote for Claude S. Carney for
Representative in Congress, as made here from the ballots in this ballot box.
Exhibit 48, this morning. — A. One hundred.
Q. Now, Mr. Elwell, can you explain how the Inconsistency arose, if you
know, in the vote, as made by you for the candidates for Congress, and tlie
count you have made here this morning after opening this ballot box, and the
count as returned for John M. C. Smith and for Claude S. Carney for Repre-
sentative in Congress, as contained in Exhibit 49, the return of your board from
Climax Township of the votes cast on the day of the election, November 5,
1912? — A. The only way I can explain it is that there was evidetnly a roll of
ballots that was not counted. That is, we went on and counted the votes, and
there were 318 in the box. It was laid off in several packages, straight votes
and split votes, the straight votes for each party, and I think when we came to
count up the vote and make up the tally sheets that we overlooked one of those
packages.
Cross-examination by Mr. Fellows:
Q. The election which was held in Michigan on November 5, as far as per-
tains to the township of Climax at least, was an election in which you had more
split votes than ordinarily? — A. Yes, sir.
CARNEY VS. SMITH. 155
Q. And it was a very bad election to canvass on that account?— A. Yes, sir,
Q. More split votes than you have ever had? — ^A. I think so.
Redirect examination by Mr. Adams :
Q. You mean in the township of Climax? — A. Yes, sir.
Q. I suppose that is all you know about it? — A. Yes, sir.
Q. You only know that there were more split votes in this last election li^
the township of Climax?
Recross examination by Mr. Fellows:
Q. Did you at any time make any offer to recount these votes for Mr. Carney^
dki he ask you to? — A. No, sir.
Mr. Prankhauser. We will concede that the board of county cauvassera
used the sjirae figures, put down the same figures in their canvass that waa
sent to them by the election board of Climax Township.
Mr. Adams. Will you concede that the board of county canvassers gave John
M. C. Smith 83 votes and Claude S. Carney 82 votes In their final canvass of the
vote in the township of Climax of the November 5. 1912. election for Repre-
.sentative in Congress?
Mr. Fellows. Yes.
March 10, 1913.
WILLIS H. TOWER, being first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified on behalf of the contestant^
Claude S. Carney, as follows:
Direct examination by Mr. Adams:
Q. Where do you reside? — ^A. I reside in Union City.
Q. How long have you lived there? — A. All my lifetime.
Q. What is your age? — ^A. I am 55.
Q. Were you in any way oflBcially connected with the general election that
was held in the township of Union, in the county of Branch, Mich. — the general
election — on the 5th day of November, 1912? — ^A. Yes, sir.
Q. In what capacity? — ^A. I was one of the inspectors, chairman of the board*
Q. Union City is in the township of Union, is it not? — ^^V. Yes, sir.
Q. Is there more than one precinct, or was there on November 5, in the town^^
ship of Union, Branch County? — A. No, sir; Just one.
Q. One voting place In the township of Union, Branch County, Mich., at that
election was where? — A. It was held in the opera house in Union City.
Q. I show you Exhibit No. oO, ix)ll book of the general election held Novem-:
ber 5, 1912, in the township of Union, county of Branch, State of Michigan.
On page 16 of this exhibit, Mr. Tower, I notice some names there opposite the
printed w^ords ** inspectors of the general election held Tuesday, the 5th day of
November, 1912 *'; will you read those names that appear there on that page
of that exhibit to that certificate? — A. W. H. Tower, Byron W. Bray, Ellsworth
P. Wooster, W. F. McClymont, and I. J. Margesou.
Q. Did you take an oath that day, before the election board of that precinct
began its duties? — ^A. Yes, sir.
Q. That you would discharge the duties of the office of insi^ector of that elec-
tion and support the Constitution of the United States and the constitution of
the State of Michigan?— A. Yes, sir; I did.
Q. Mr. McClymont acted as clerk of that election? — A. Yes, sir.
Q. And Mr. Margesou acted as clerk of that election? — A. Yes. sir.
Q. That election in that precinct on that day was oiiened and commenced
about what time during the day? — A. About 7 o'clock; it might have been 5 or
10 minutes after and might not have l>een; about 7, just about 7 o'clock we
took our seats and got ready for work.
Q. In the morning V— A. Yes, sir.
Q. The voting was 8topi)e<i and closed, as far as any voting was concenietl
there that day by your bonrd, nt what hour? — A. Twelve o'clock at noon.
Q. Then what did you and your board do? — A. Well, we sealed the ballot
boxes. I don't know whether we locke<l them ui) and left a nuin with them.
Q. Where did you put the box, the statement book, the |>oll book, and the^
tally-sheet book? — A. Tbe statement book and the tally sheet were not used at
that time. We didn't use those until afterwards until we commenced to count.
Tbe poll book— I think the clerk took that with him.
156 CARNEY VS. SMITH.
Q. You (lldn't ]y\\t It In the liallot Im>xV— A. No. sir; we didn't oi)eu up tbe
ballot box.
Q. You said you sealed the ballot box at noon? — A. Yes. sir.
Q. Was it not already sealed?— A. We sealed It over the place where we had
been putting in tlie ballots.
U. The slot?— A. Yes, sir.
Q. Was it locked?— A. Yes, sir.
Q. Had you had it locked all tliat morning up to the time you took your
iidjournment at noon? — A. Yes, sir.
Q. Who went away from there at noon?— A. I think they all went away from
there — all went to dinner.
Q. Who had the key to the ballot box, if you know? — A. W^e had two ballot
boxes.
Q. I mean the ballot box in which the vote for Representative in Congress
was. — A. They were all on tlie s.'mp strlu^i. I think the clerk had them.
Q. What is his name? — A. Mr. Mct'lymont : I am not si»re about tliat. though.
It was 1ocJ<ed up in the morning when we started.
Q. Y'ou went to lunch? — A. Yes, sir.
Q. How long were you gone? — A. We adjourned until 1 o'clock.
Q. Did you make any announcement of the adjournment? — A. Yes, sir.
Q. Who made tliat announcement? — ^A. I nmde it.
Q. What did you announce?— A. I think that I said, '* The iwlls of this
electicm are now adjourned until 1 o'clock." I think that Is it. I am not sure
exactly about that. l»ut that Is the substance of what I said.
Q. Did you come back at 1 o'clock? — A. Just before 1 o'clock.
Q. Then what did you do? — A. Well, when we were all there we declared
the election oi)en and took the seal off the slot wliere we put in the ballots and
Went on with our election.
Q. What time did you begin your election fu the afternoon? — A. About 1
T)'clock, I should say : I think Just exactly 1 o'clock.
Q. Where did you get your i>oll book from when you conmoenced again at
1 o'doc'k? — A. From the clerk. He took them to his office, and he brought them
nver there, or they were left there: I am not sure about that. I didn't have
rharge of them : those two clerks had, Mr. McClymont and Mr. Margeson.
Q. Did the clerks go with you to the same place where you got your lunch? —
A. Xo. sir; I went to my own home, and I think they all did the same.
Q. Did you see this poll book brought back to the voting place at 1 o'clock
or al>out tliat time when you came Imck at one? — A. I know they had them
there. I didn't see them brought i)ack.
Q. Were the books there when you got back to the voting place?— A. Well, I
think they were; I think that the bfoks were left there, but I am not sure:
T can't tell about that: I don't recollect.
Q. If they were left there, do you know where they were left? — ^A. They
Were locked up In the opera house; the opera house was locked and one of our
men had the key to it.
Q. You saw It lockal up at noon? — A. Y'es. sir.
Q. When you came back at 1 o'clock did you open up the election? — A. Yes,
^ir.
Q. Did you make any declaration? — A. Yes. sir.
Q. What did you declare? — A. " Hear ye, hejir ye, the polls of this election
are now open."
Q. Then went on with the elec»tion? — A. Y'es, sir.
(). TTntil when: when did you stop voting? — A. When did we dose?
Q. At 5 o'clock. — A. Five or six o'clock; Just what the law says; I couldn't
say whether 5 or 6; we adjourned Just as soon as th^ law said we should
T'lose we close<l.
Q. When you closed the polls that day did you make any declaration? — A.
Yes. sir.
Q. Of the closing of the polls? — A. Yes, sir.
Q. Did you do that? — A. Yes, sir.
Q. After you closed the polls what did you do? — A. Well, the first thing we
"did we got our lunch.
Q. Did you take any adjournment? — A. No, sir.
Q. Where did you get your lunch? — A. At a restaurant; they were going to
bring it over, but they didn't get there, and we went after It.
Q. Did you have the ballots out of the ballot box then? — A. No, sir.
Q. After you closed the votes at 5 o'clock, did you, before you went to get
your lunch, open the ballot box? — ^A. No, sir.
CABNBY VS. SMITH. 157
Q. What was doue with the ballot box at the time yon weat to your evening;
Innch? — A. They were left there in charge of the gatekeeper.
Q. How many gatelceepets did you leave there? — ^A. One.
Q. Who was that? — ^A. His name was Herbert Phillips.
Q. Did you seal the ballot box when you went to your evening' lunch ? — A. I
am not sure about that, I think not : I am not sure, but I think not.
Q. Did you all go out except the gatekeeper to lunch? — ^A. Yes, sir.
Q. About 5 o'clock or a little after? — A. Just soon after we closed; it was
ordered to be brought there, but they didn't get it, and we were anxious to get
to work, and we went after It.
Q. Did you make any declaration when you took that adjournment, after you
stopped voting there? — A. When we went to supper?
Q. Yea— A. No, sir.
Q. You just stopped without making any public announcement? — A. Yes, sir;
I says. ** We will get our lunch before we commence counting the ballots."
Q. You then went out and got your lunch? — A. Yes, sir.
Q. And came back about what time? — A. We might have been gone 20 or
30 minutes.
Q. When you got back who was there? — ^A. The same Mr. Phillips, the gate-
keeper.
Q. He was the only one there when you got back? — A. Yes, sir.
Q. What time in the day did you get back? — A. I should say about 20 min-
utes after 5, or half pas' 5 ; I think we waited a little for them to come, but they
didn't come.
Q. You mean you waited for your lunch? — ^A. Yes, sir; they were going to
bring it up, but didn't do it.
Q. When you got back there*, after going out to get your lunch and after the
voting had stopped, you think it was about half past 5? — A. Yes, sir.
Q. Then what was done? — ^A. Then we opened the ballot box and turned the
ballots on the table, but we opened the main ballot box; we had the presidential
electors in a large box.
Q. That ballot box also contained the vo^es for the different candidates for
the office of Representative in Congress? — A. Yes, sir; they were all on one
ballot I think.
Q. Did you or not commence counting those returns? — ^A. We counted them;
yes, sir.
Q. What time did you conclude the count? — A. About 4 o'clock in the morn-.
Ing.
Q. The next mominir? — A. Yes. sir.
Q. The morning of the 6th?— A. Yes, sir.
Q. After you got through counting, what did your board do? — ^A. After we
got through counting? I declared the election and read off the sta*ement book,
and we sealed the ballot box, put the ballots in with one tally sheet.
Q. With one <ally sheet in the box? — ^A. Yes, sir; and sealed them up.
Q. In the box in which the ballots for Representative in Congress were?— .
A. Yes, sir.
Q. Was that the only book you put in the ballot box?— A. Yes, sir.
Q. What else did you do then, before you left?— A. We sealed up the ballot
box, put that tally sheet in, and closed up ♦he polls and took our books and
took the ballot boxes, two of them, with the books, to the clerk's office.
Q. The city clerk?— A. The township clerk.
Q. What did you do with the books that you didn't put in the ballot box?^
A. The clerk took them.
Q. The township clerk?— A. Yes, sir; Mr. McClymont.
Q. He was the township clerk?— A. Yes, sir.
Q. He had *he books that were not In the ballot box?— A. Yes, sir.
Q. Do you know where he took them to? — A. He took them to his office.
Q. Did you go up to his office with him?— A. No, sir.
Q. Where did you last see the clerk with those books? — A. When we went
out of the opera house I left — I had ♦o go that way to get home: I had to go
around this way, and as long as two or three other fellows were going with
him, they all went that way to his office.
Q. The last you saw of the books they were in the possession of the township
clerk going a different direction from *he way you were?— A. Yes, sir.
Q. Had you completed the ele'^tion returns — did you take an adjournment
there about 4 o'clock In the morning when you quit?— A. No, sir; we considered
we were through then.
158 CARNEY VS. SMITH.
Q. Did you make any adjournment of your board there when you quit in the
morning?— A. No, sir.
Q. Did any of you get together the next day — any members of your board? —
A. Mr. McClyraont and myself, at his office.
Q. What time? — A. .^bont betwoon !) njul 10 o'cloclt.
Q. That was the morning of the 6th of November, lf>12? — A. Yes, sir.
Q. You went to Mr. McClymont's office on the morning of the 6th of Novem-
ber, 1912?— A. Yes, air.
Q. What, if anything, did you and Mr. McCIymont do on the morning of the
6th of November, 1912, with reference to any of these election returns from that
township? — ^A. In the statement book, where it says the number of votes a
person has, we put it in in. numbers — in figures, I mean — and It says it shall be
wri'ten In, and we wrote those In. •
Q. Why didn't you write those In the ul^ht before?— A. We didn't know at
that time that it was the law; we had always done that way before that;
we have always doue that way for years, and we didn't know but what that
Was the right thing to do.
Q. You didn't know but what it was the right thing to write it in there? —
A. When we adjourned we knew it was right for us to wrl'e those in. but we
•didn't think it was necessary they should be written in that night. It was 4
o'clock, and it was agreed among our board that we should write them in
the next morning.
Q. You didn't write them in when you adjourned at 4 o'clock on the morning
T)f the 6th of November, 1912? — A. Yes, sir; those figures were all put In tliere
and footed like they are now; then we wrote this "225" In.
Q. Then, under the number of votes given lor the office of Representative
In Congress, on page 7 of Exhibit 51, opposite the name of John M. C. Smith,
you wrote in there on the morning of the 6th of November, 1912, for tbe first
time, the words "two hundred and seven"? — A. Yes, sir; this was put in the
night before.
Q. That is. you mean the figures "207," opposite the name of John M. C.
Smith, were put in there the night before? — A. Yes, sir; then we adjourned.
Q. Opposite the name of Claude S. Carney, for the first time, you wrote in
T)ne hundred and fifty on the morning of the 6th of November, 1912, in writ-
ing?— A. Yes, sir.
Q. Opposite the name of Claude S. Carney, before you adjourned the night
t)f election, did you wri'e in "150"?— A. Yes, sir; that was written before we
adjourned.
Q. On the night you adjourned? — A. If was in the morning.
Q. The morning of the 6th? — ^A. Yes, sir. .
Q. About 4 o'clock? — ^A. Yes, sir.
Q. You were one of the two members of the board — ^you and Mr. McCIy-
mont— who completed that statement book on the morning of the 6th of No-
vember, 1912, by writing in the words as you have indicated? — ^A. Yes, sir.
Q. The other members of the board were not present at that time?— A.
No. sir.
Q. When you got that written in what was done with the election returns of
thnt election? — A. Mr. McCIymont took one of the sta'ement books and one of
the poll books and sent them in one envelope. We put one statement book in
another enveloi>e, and they both came here, one to the judge of probate and
the other. I think — I don't know who the other came to — whether to the coimty
t?anvapsers or the county clerk; I guess they were sent over here.
Q. Did you see them put in the post office? — A. I saw them put in the en-
velopes and sealed, and Mr. McCIymont took them to the post office.
Q. Did you see him take them to the post office?— A. I saw him go out of
the office with them in his hand.
Q. You didn't go along with him to the post office?— A. No, sir; but it is
recorded in the post office.
Mr. Adams. That part I object to, and move to strike out the answer that
it is recorded In the post office; there is better evidence of that.
Q. Was it on the morning of the 0th of November that you saw these elec-
tion returns sealed up in the envelopes in the office of Mr. McCIymont?-— A.
Yes, sir.
Q. You are sure about the date? — ^A. Yes, sir.
Q. Of your own knowledge, I mean?— A. Yes, sir; I was right there myself
and saw it done.
CABKEY VS. SMITH. 159
Q. What 8e>il did you have tltat election day while the board was in
8ion?— A. The regular seal of the township of Union. I think It says some-
thini? about the township of Union; I couldn't tell you what is on it but it has
the township of Union on.
Q The seal that Mr. McClyniont put on that envelope that day which you
ha\e stated was not the same seal that you had used that election day there by
the board of inspectors at that election, was it? — ^A. I am not sure about that.
Q. The seal that was put on those envelopes in Mr. McClymonfs office w«s
a seal that Mr. McOlymont produced, was it not?— A. I think they are all the
same thing.
Q. The point is, the seal that Mr. McClymont used that day, the 6tli of No-
vember, 1012, when you say you saw these envelopes sealed up in Mr. McCly-
monfs office, was a seal that Mr. McClyniont produced there and used in seal-
ing those envelopes, was it not? — A. Yes, sir; it was the township seal, I
think.
Q. It was a seal he produced — that Mr. McClymont produced? — A. Yes. sir.
Q. You don't know where he got it? — A. He had it in his office.
Q. That was not the same seal you used election day in connection with the
election business?
Mr. Maynard. Objected to as Incompetent and immaterial.
A. I say that he had these seals and wax all in one box that was there; they
mi^ht be both the same seal : I think so, but I will not swear to it.
Q. Didn't the justice of the peace take the seal away when you left your
toting place that morning of the 6th? — ^A. I am not sure; I don't know; I
don't know ; J am sure I don't know about that, although I can tell you what I
think. I think Mr. McClymont had two or three seals In a box about alike.
Q. Isn't it your recollection now that when you broke up there on the morn-
ing of the 6th that the justice of the peace took the seal that you had used
there by your board of inspectors on that day for election purposes? — ^A. I am
not sure; I don't know; I didn't see him take it.
Q. You don't know whether the seal you used In McClymont's office on the
morning of the 6th, after you went back there to finish up the returns, was a
seal that Mr. McCiymont produced there in his own office? He was township
clerk? — A. He was township clerk.
Q. He was not a justice of the peace at the time that election was held? — ^A.
No, sir.
Q. He was one of the men who acted as one of the clerks of that election? —
A Yes. sir.
Q. Wheu you broke up there about 4 o'clock in the morning, after you say
yon got through with that election, in making out your returns, as far as you
mnde them out up to that time, were all delivered over to the township clerk? —
A. Yes, sir.
Q. Except the one book that you say was in the ballot box? — A. Yes, sir.
Q. They were not under seal? — ^A. I will not say that.
Q. They were not in any way sealed up? — ^A. No, sir.
Q. They were open so anybody could open them up? — ^A. Mr. McClymont had
them in his charge.
Q, He had them in his charge, but there was no seal on those books? — A.
No, sir.
Q. They were open just the same as now, without any seal on them? — A.
Yes, sir.
Q. As they lay here before you? — ^A. Yes, sir.
Q. He could oiien them up if he saw fit to do so? — ^A. Yes, sir.
Q. Without breaking any seal? — A. Yes, sir.
Q. Your board of inspectors of that election did not deliver at any time the
election books to Mr. McClymont, the township clerk. In a sealetl condition? — A.
No. sir.
Q. All of these election books that you used there on that day for election
purposes, except the one that was put In the ballot box, were not in any way
pealed by. the board when it disbanded? — ^A. No, sir.
Q. Or at any time that you know of? — A. They were sealed when we sent
them away; that is all.
Q. That was the first time you knew of their being sealed? — A. Yes, sir.
Q. They were not sealed by the board of election inspectors at any time be-
fore they were delivered to the township clerk? — A. No, sir.
Q. After you got through there the morning of the 6th? — A. No, sir: he took
charge of them; we understood it between ourselves that we were going to
160 CARNEY VS. SMITH.
write that in, and he took theiu and took them to his office and looked them up.
Q. The board didn't seal them at all at any time? — A. No, sir.
Q. The first seal you saw ui)on any of those book^, except the one that was
put in the ballot box A. .(Interrupting.) The tally g^eet
Q. ( Ck>ntinuing. ) Was when you saw Mr. McCIymont seal them in his office
on the morning of the 6th? — A. Yes, sir.
Q. Did Mr. McCIymont retain the seal he sealed those enveloi^es with?— A. I
think so.
Q. You didn't take it?— -A. No. sir.
Q. You didn't see anybody else take It from Mr. McCIymont? — ^A. No. sir.
Cross-examination by Mr. Fbankhauseb:
Q. Mr. Tower, where is that election box that contained the votes for Repre-
sentative in Congress? — A. In the clerk's office.
Q. Has it been there ever since, as far as you know? — A. Yes. sir.
Q. Has it been opened since? — ^A. No, sir; not to my knowledge.
Q. Does it contain the ballots of the general election held November 5,1912?—
A. Yes, sir.
Mr. Fbankhauseb. In response to any claim that may be made here by the
contestant that the returns filed with the county clerk and the probate court do
not contain an honest or correct statement of the result of that election for
Member of Congress for the third district, in Union township, the contestee
now consents that the box may be produced and the votes counted under the
direction of the commissioner here. Mr. Stockwell, and whatever result is
thereby found to exist will be the result of this contest in that precinct, in the
same manner that the votes were counted in tlie township of Climax, Kalamassoo
County, Mich., March 8, 1913.
Q. As I understood you, Mr. Tower, the names you first read here from
Exhibit 60, being the poll bbok of that township, of those five men, three of
them were inspectors and two were clerks? — A. Yes, sir.
Q. Who were the inspectors there? — A. Myself, Mr. Bray, and Mr. Wooster.
Q. Mr. McCIymont was township clerk? — ^A. Yes, sir.
Q. According to law he would also be ;in inspector, wouldn*t he?
Mr. Adams. Objected to as Incompetent.
A. Mr. McCIymont and Mr. Margcson were clerks and set down the names
on the books.
Q. What township office does Mr. McCIymont hold? — A. Township clerk.
Q. N\)w, when you got through with the vote there that day at about 5
o'clock — you say that was the law — A. Yes, sir we closed on time.
Q. As I understand it, you expected that your lunch would be brought
there, but they failed to bring it? — ^A. Yes, sir.
Q. And after waiting some time you thought you would get it yourselves — ^A.
Yes, sir.
Q. While you were gone the ballot box was in the possession of who? — A.
Herbert Phillips.
Q. And the ballot box was locked as It had been all day? — ^A. Yes, sir.
Q. Was he there when you returned from your lunch? — ^A. Yes, sir.
Q. IIow long were you gone? — A. We may have been gone twenty or thirty
minutes; not longer than that.
Q. When you returned did you continue the count until it was completed?—
A. Yes, sir.
Q. After you began, you continued the count until completed?— A. Yes, sir.
Q. You didn't begin the count before you went to lunch?— A. No, sir.
Q. Nor oi)en the box or anything of the kind? — A. No, sir.
Q. When you returned was there anybody else in the voting room beside
Mr. Phillips"?— A. I think not.
Q. Now, when you got through counting, it was pretty late In the night, or
earlv in the morning? — A. Yes. sir.
Q."^ .Xbout what time?— A. About 4 o'clock, I should wiy.
Q. .Just tell, to put it on the record, how complete your work was before
you went away that morning?— A. Tl^e statement books were all completed ex-
cept writing In the numbera Everything else was done that we knew should
be done.
g. That IH, writing In the words?— A. In writing In the number of votes.
Q. lou wrote afterwards the number of votes?— Yes, sir.
g. 1 will show you Exhibit 50. Had you signed the poll book there at the
voting place? — A. Yes, sir.
GABNEY VS. SMITH. 161
Q. Everything was signed up before you left? — A. Everything was done; yes,
sir.
Q. As I understand you, there was an agreement among the members of
the board that you and the clerk should write in those words where the law
required them to be written in? — A. Yes, sir.
Mr. Adams. I object to that as incompetent, irrelevant, immaterial, and hear-
say and move to strike out the answer.
Q. I show you EiXhibit 51. Turn to page 16 under certificate. Was that
certificate signed before you quit the polling place that morning? — A. Yes» rtr.
Q. Read that down to and including those names. — A. (Reading:)
"State of Michigan, County of Branch, 88 :
" We do hereby certify that the foregoing is a correct statement of the votes
given in the township of Union, county of Branch, State of Michigan, at the
general election held on Tuesday, the 5th day of November, A. D. 1912.
" In witness whereof we have hereunto set our hands at the village of Union
City, in said county and State, this 5th day of November, 1912.
"W. H. TOWEB,
" e. c. woosteb,
"Bybon W. Bray.
"W. F. McClymont.
" I. J. Maboeson."
Q. Yon have been reading from the statement book of the general election,
page 16, of Exhibit 51?— A. Yes, sir.
Q. Was that completed before you left the polling place that morning of the
6th of November, before you went to the clerk's office? — A. Do you mean was
that signed?
Q. Yes, sir. — ^A. Yes, sir.
Q. I call your attention to Exhibit 50, being the poll book referred to here
with the certificate of the inspectors at page 16 :
" State of Michigak, County of Branch, »$:
*' We do hereby certify that the foregoing poll list has been carefully com'
pared by us with the duplicate poll list as required by law, and that uli mis-
takes found in said poll lists have been du^y corrected by us, and that both of
said poll lists are now correct and agree with each other.
"In witness whereof we have hereunto set our h^nds at Union City, in said
county and State, this 5th day of November, A. D. 1912.
" W. H. Tower,
"Byron W. Bray,
"B. C. WoOSTEB,
" W. F. McClymont,
" I. J. Maroeson,
"Inspectors of the general election
held on the 5th day of November, 1912"
When was that signed? — ^A. After we quit in the morning.
Q. At 4 o'clock? — A. Yes, sir; or about that time.
Q. Before you left the polling place? — ^A. Yea. sir.
(Tally sheet book of Union Township of the general election held on the 5th
day of November, 1912, Branch County, Mich., was marked " Contestee's Ex-
hibit 52.")
Q. I think maybe I asked you this once before: Just what was understood
between you and the rest of the board as to what should be done in this state-
ment book before it was mailed to the county officers?
Mr. Adams. We object to that as incompetent, irrelevant, immaterial, and
hearsay.
A. It was understood between the board that Mr. McClymont and myself
should write in the figures the next morning and mall them.
Q. Then, as I understand, you had completed the count, announced the result,
and signed the books — ^that is, the poll book and the statement book— before
you left the voting place — A. Yes, sir.
Q. Then the board went to their several homes to breakfast? — A. We went
home and went to bed instead of breakfast.
Q. Then you went to the township clerk's office nt about 9 o'clock to write in
those words?— A. Yes, sir.
286—13 ^11
162 CARNEY VS. SMITH.
Q. Where did you find the statement book and the poll book?— A. The clerk
had them on his desk.
Q. Was there anything done with either one of them, except to write in the
words you have spoken of? — ^A. Nothing at all.
Q. Was there any dating done? — ^A. No, sir.
Q. Everything was dated, finished, signed, and completed except the writing
In of those words? — ^A. That Is all we did.
Q. Now, I will ask you to refresh your recollection from Exhibit 61, the state-
ment book, and state how many votes the Republican electors got for Presi-
dent?— A. Twenty-six hundred and seventy-five.
Q. I mean each one. How many the Republican electors got for President?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. The highest was 181 and the lowest was 178.
Q. What did you write in there after you got to the township clerk's oflflce with
regard to that? You wrote in the words opposite the figures you had already
written in? — ^A. Yes, sir.
Q. Whose figures are these? — ^A. They are mine [referring to the figures for
the Republican electors].
Q. Who wrote the writing to the left of the figures? — A. I did.
Q. Referring to Exhibit 51, how many votes did the Democratic electors get?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
Q. The highest to the lowest?
Mr. Adams. The same objection.
A. One hundred and forty- two right straight through.
Q. Did you, before leaving the polling place, put in the figures? — ^A. Yes, sir.
Q. Then what did you add afterwards, when you w^ere at the township clerk's
ofllce? — ^A. Just the words.
Q. Then you wrote in the words "one hundred and forty-two" how many
times? — ^A. As many times as there were Democratic electors.
Q. Page 2 of Exhibit 51, how many votes did the Prohibition electors get?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. Thirteen and 12 ; 13 the highest and 12 the lowest.
Q. Were the figures placed there before you gentlemen left the i)olllng place? —
A. Yes, sir.
Q. What was it you added in there at the township clerk's ofllce? — A. We
wrote the figures out in words.
Q. That is, 13 and 12?— A. Yes, sir.
Q. Come on down to the Socialist Party. How many votes did ihe Socialist
electors get?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. Four.
Q. When did you put the figures down there showing that vote? — ^A. Right
there.
Q. Before you left the polling place? — ^A. Yes, sir.
Q. When did you put the words In? — ^A. The next morning.
Q. Turn to page 3 of the same exhibit. How many votes did the Socialist
Labor Party get?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. One.
Q. What did you do there, with reference to those words and figures? — ^A.
We wrote the figures in before we closed, and the words the next morning.
Q. At the clerk's oflice? — ^A. Yes, sir.
Q. On the same page, I ask you how many votes did the Progressive Party
get. from the highest to the lowest? — A. Two hundred and twenty-two and 221.
Q. When were the figures put down there? — A. Before we closed.
Q. And the words? — A. The next morning.
Q. Who put those words and figures down? — ^A. I did, myself.
Q. Did you do all the clerical work in reference to making these books? — A.
One of our clerks got so nervous that he could not do anything, and finally he
handed the book to me and let me write It in for him. He was not very well, and
he asked me to do it for him ; Mr. Margeson did.
Q. I will ask you to read Into the record, page 4. from the same exhibit, the
number of votes each m.in received for governor in Union Township.
Mr. Adams. I object to that as lncomi)etent. Irrelevant, and immaterial.
A. Amos S. Mussulman, 164; Woodbrldge N. Ferris, 206; J. B. Leland, 9;
Hagerhymer, 3; Watkins, 177.
OABNEY VS. SMITH. 168
Q. Whicli one was the Republican? — ^A. Mussulman.
Q. Who was the Democratic candidate? — A. Woodbridge N. Ferris.
Q. Who was the National Progressive candidate?— A. Watkins.
Q. Now, were those figures put in there before you left the i)olling place? —
A. Yes, sir.
Q. And the words were put in afterwards, about 9 o'clock, as you have
testified?— A. Yes, sir.
Q. Now come down to the votes for lieutenant governor, and read those.
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial.
Q. Were all the figures in this exhibit put down by you before you left the
polling place as a board, and the words afterwards put in at the township
clerk's office, according to the agreement you have testified to? — ^A. I see they
have in here 155; I don't think that is my writing.
Q. That is, these totals?— A. Yes, sir. This is my writing here.
Q. But the other figures are your handwriting? — ^A. Yes, sir; this is my
writing in here.
Q. The figures that you refer to that were not yours are the totals in each
office?— A. Yes, sir.
Q. Begin with lieutenant governor.
Mr. Adams. I object to his reading what the lieutenant governor got as irrele-
vant and immaterial.
A. (Reading.) "John Q. Ross, 182; James W. Helme, 161; F. C. Demorest, 9;
Edwin R. Cornish, 4 ; William D. Gordon, 199."
Q. As you understand, Mr. Gordon was the National Progressive? — A. Yes,
sir.
Q. Take the ofllce of secretary of State.— A. (Reading.) "Fred C. Martin-
dale, 191; Jumes B. Balch, 151; Alfred Lowther, 10; Henry Kummerfeld, jr., 3;
Thos. H. Grabouski, 1 ; Howard L. BattdorfT, 201."
Mr. Adams. I move to strike that out as Irregular and immaterial; I move
to strike out the last he read of the different candidates for the office of
secretary of state as irrelevant and immaterial.
Q The last one you read, Mr. BattdorfP, was the National Progressive? — A.
Yes, sir.
Q. And Mr. Balch was the Democrat? — ^A. Yes, sir.
Q. Take next the office of State treasurer.
Mr. Adams. I object to that as incompetent and immaterial.
Mr. Fbankhaxjseb. You can have an objection and an exception to all of
this as irrelevant and immaterial. Is it conceded that the second name is the
Democrat always?
Mr. Adams. I think so.
A. (Reading.) "John W. Haarer, Republican, 191; John H. Robson, 150;
John Borland, sr., 10; John H. Beyer, 4; Arthur L. Kline, 2; Frank C. Holmes,
Progressive, 201."
Q. The next one is auditor general. — ^A. (Reading.) " Oramel B. Fuller, Re-
publican, 192; Peter Primeau, Democrat, 149; William J. Reynolds, 10; Ralph
Kirsch, 4 ; Fred Hueffner, 2 ; Herbert F. Baker, 201. Attorney General : Grant
Fellows, Republican, 191; Louis E. Howlett, Democrat, 151; Seth B. Terry, 1;
Homer C. Van Aiken, 4; George Hasseler, 2; Julius C. Kirby, 201. Commis-
sioner of the State land office: Augustus C. Carton, Republican, 190; Orlando F.
Barnes, Democrat, 149 ; Willis M. Farr 10 ; Chris. Niva, 4 ; Isaac J. LeBrun, 1 ;
Oscar E. Linden, 203. Justices of the Supreme Court, short term : Joseph H.
Steere, Republican, 192; Rollin H. Person, Democrat, 150; Winent H. D. Fox,
10; Garry Dohm, 4; Willard J. Turner, 201. Justices of the Supreme Court,
long term: Franz C. Kuhn, Republican, 179; George L. Yaple, Democrat, 305;
5dwin H. Lyon, 199."
Q. Mr. Kuhn was Republican, and Mr. Yaple the Democrat? — A. Yes, sir.
"Representative in Congress at large: Patrick H. Kelly, Republican. 193; Ed-
ward Frensdorf, Democrat, 148; Fred W. Corbett, 10; Milan F. Martin, 4; Wil-
liam H. Hill, 200. Representative in Congress, third District : John M. C. Smith,
207; Claude S. Carney, 150; Levant L. Rogers, 4; Edwin N. Dingley, 188."
Q. I will ask you now, was that true with reference to all the figures rep-
resenting the votes they received, that they were placed there by you before
you left the polling place, and the words written in at the office of the town-
ship clerk? — A. Yes, sir.
Q. Do those figures correctly represent the number of votes each one received?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. They are as far as the tally sheet showed.
164 CABNEY VS. SMITH.
Q. Now take the office of State senator. A. (reading:) ''Swift, 237; Corliss,
140 ; Cameron, 3 ; Howard, 171."
Q. You understand that Mr. Swift was the Republican and Mr. Corliss the
Democrat? — A. Yes, sir. "Representative for the State legislature: BvanSi
214 ; Sherman, 148 ; Donnigan, 100.'*
Q. You understand the first one was a Republican? — A. Yes, air.
Q. And Sherman a Democrat? — A. Yes, sir.
Q. And Donnigan a Progressive? — ^A. Yes, sir. "Judge of probate: Repub-
lican candid!ite. 253; Democrat candidate, 140; Progressive candidate, 156.
Sheriff: Republican candidate, 235; Democratic candidate, 133; Progressive
candidate, 140. County treasurer: Republican candidate, 237; Democratic can-
didate. 144; Progressive cnndidate, 170. Register of deeds: Republican candi-
date, 236; Democratic candidate, 134; Progressive candidate, 166. Prosecuting
attorney: Republican candidate, 215; Democratic candidate, 105; Progressive
candidate, 142."
Q. Take the vote for Representative in Congress which you gave, John M.
C. Smith 207, and Claude S. Carney 150, state whether those are the numbers
that appeared there that day?
Mr. Adams. I object to that as incompetent, Irrelevant, and immaterial, and
not the best evidence, and that the returns must speak for themselves. — A. Yes,
sir.
Q. Have there been any changes or alterations made in regard to it? — A.
No, sir.
Q. Were those the number of votes that each one actually received? — A. Yes,
sir; as far as the tally slieet shows.
Q. I will ask you again whether there have been any changes or alterations
of any kind in those figures? — A. Not that I could see.
Q. If there was, you could see? — A. Yes. sir.
Q. Now I will ask you, as far as you know, whether that election, and canvass
of the votes returned, were In every way honest and square, as far as you
know ?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and call-
ing for the conclusion of the witness.
A. Yes, sir.
Q. Does the return here that you have seen correctly express that vote?
Mr. Adams. Objected to as incompetent. Irrelevant, and immaterial, and call-
ing for the conclusion of the witness.
A. Yes. sir; that Is the way we counted them up.
Q. Did John M. C. Smith receive any votes that belonged to Claude S. Carney?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and call-
ing for the conclusion of the witness.
A, No. sir.
Q. Did John M. C. Smith receive any votes that were not cnst for him?
Mr. Adams. Objected to as incompetent. Irrelevant, and immaterial, and call-
ing for the conclusion of the witness.
A. No, sir; not ns far as I know.
Q. I show you Exhibit 52 now, and call your attention to page 12, the vote
on Congressmen In the third Congressional district, and ask you to look at that
book on pnges 12 and 13 and tell me whether those are the figures from which
you made that stntement — the figures and tallies — from which you made that
statement? — A. Yes. sir.
Q. How many straight votes did John M. C. Smith receive, as shown by the
tally book, or your rec^ollectlon? — A. Ninety-five.
Q. How mnny straight votes did Clnude S. Carney get? — A. He got 03.
Q. How many split votes did John M. C. Smith get?— A. He got 112.
Q. How many did Claude S. Cnrney pet? — A. He got 57.
Q. Does the book show that you have In your hand, the number of tallies to
make up those figures? — A. Yes. sir; 112 for Smith and 57 for Carney; that is,
the split votes.
Q. I win ask you about I^nlon Township, the genernl politics of Union Town-
ship for the last few yenrs, has It been I>emocratic or Republican?
Mr. Adams. Objected to as Incomi)etent, irrelevant, and Immaterial.
A. Strongly Republican.
Q. T'utll last fall when the Progressives came in, then what effect did It
have?
Mr. Adams. Objected to as incomiietent. Irrelevant, and Immaterial, and not
the best evidence.
OABNEY VS. SMITH. 165
A. It took a large vote oflf the Republicans, of the usual Republican vote.
Q. We have read into the record the vote received by the different county
officers, did the Prohibitionists or Socialist Labor have a county ticket?
Mr. Adams. Objected to as irrelevant and immaterial, and not the best
evidence.
Q. I mean for county officers? — ^A. No, sir; they did not; there were three
tickets.
Q. Is it not true, Mr. Tower, that a good many, or some at least, voted for
Mr. Roosevelt on the Progressive ticket, that voted for the Republican ticket?
Mr. Adams. Objected to as lncomi>etent and immaterial, and calling for the
conclusion of the witness, hejirsay and not the best evidence.
A. A good many Progressives who voted for the Progressive electors voted
the State Republican ticket and for Mr. Smith — for Mr. Smith and the State
Republican ticket — some voted for Mr. Carney, too.
Q. Do you know a man by the name of Charlie Day? — A. Yes, sir.
Q. Does he live in Union City?— A. Yes, sir.
Q. He still votes there?— A. Yes, sir.
Q. Was he up north just before election last fall, at Saginaw? — ^A. Yes, sir.
Q. How long has he been at Saginaw? — ^A. He has been there more than a
year; I should say a year and a half.
Q. Does he come home to vote? — ^A. Yes, sir ; his wife lives there.
Q. Did he come home to vote last fall? — A. Yes, sir.
Q. Isn't he a strong Democrat In politics
Mr. Adams. I object to it as irrelevant and immaterial.
Q. (Continuing) — and didn't he watch the count of the vote very closely the
day and the night and morning of the counting of those ballots?
Mr. Adams. I object to that as irrelevant and immaterial and calling for the
conclusion of the witness.
A. He was one of the challengers for the Democratic Party and he stayed
there until the last vote was counted.
Q. Did he give his personal attention to it and watch the counting of the
votes? — A. Yes, sir; and also Mr. Rupright.
Q. Did you read the votes personally, call of, or, what part did you take? —
A. I took in the ballots and called off the names.
Q. Didn't Mr. Day look over your shoulder at every ballot when counting
np? — ^A. Yes, sir ; he sat hy the side of me.
Q. And didn't you hold the ballots on purpose so Charlie could see every
one? — ^A. Yes, sir ; he sat by the side of me and Mr. Rupright watched the other
end of the table; it was pretty well guarded by two Democrats.
Q. How long have you been acquainted with the election inspectors of that
precinct who acted there that day, the township clerk and the other two
Inspectors?
Mr. Adams. Objected to as irrelevant and immaterial
A. Mr. Bray, I have known for 20 years; Mr. W^ooster for about five years,
and Mr. McClymont for about five or six years, and Mr. Margeson about twenty
years.
Q. Was the last one you mentioned the clerk? — A. No, sir; Mr. McClymont
was the clerk.
Q. What sort of men are they? — A. As good men as you can find in this
eoimty.
Mr. Adams. I move to strike out the answ^er and object to the question on the
ground that it is incompetent, irrelevant, and Immaterial, and thnt the question
la not sanctioned by any rule of evidence.
Q. Have you the means of knowing what their general reputation is for
uprightness, integrity, and honesty?
Mr. Adams. I object to that as incompetent. Irrelevant, and Immaterial, and
calling for the conclusion of the witness, and does not state any facts.
A. I have.
Q. What is that reputation?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. They have a splendid reputation around there.
Q. Referring especially to the county clerk, what kind of man is he?
Mr. Adams. Objected to as incompetent, Irrelevant, and immaterial, calling
for the conclusion of the witness and hearsay.
A. A very honorable man, I should say.
. Q. Do you think that any member of that board of election inspectors would
purposely make a wrong count or commit fraud in the election?
166 CARNEY VS. SMITH.
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, calling
for the conclusion of the witness and his opinion.
A. No, sir.
Q. Do you know of any illegal voting or any fraud on the part of anyone
during that election in that precinct?
Mr. Abams. Objected to as incompetent, irrelevant and immaterial and call-
ing for the conclusion of the witness.
A. No, sir.
Q. Would you say that the canvass made of the votes in that precinct and
these three exhibits put in here show the correct vote as cast by the legal
qualified electors In that precinct for cross-examination on November 5, 1912?
Mr. Adams. Objected to as Incompetent, irrelevant, and immaterial and
calling for the conclusion of the witness and not the proper manner of Inquiry.
A. It was so far as we were capable of making it; we did our best
Q. Did you change any figures from what they were before your board left
the voting place? — A. I don't understand your question.
Q. Did you change any figures after the board left the voting place, the
morning of the 6th day of November, 1912, over at the ofllce of the township
clerk or any place else? — A. No, sir.
Q. Were they put In those envelopes in precisely the condition so far as you
could see as they are now? Are they now in the same condition as tJiey were
when they left your hands? — ^A. Yes, sir; exactly, as far as I can see.
Q. You saw them sealed up? — A. I did; I helped seal them up.
Q. And you saw the man start to the post oflice with them? — A. Yes, sir.
Q. They were delivered to the township clerk to be mailed? — A. Yes, sir.
Q. And while you did not go to the post office, you saw him go toward the
post oflice? — ^A. It was raining and I stayed in the office while he went.
Q. What time in the day were they delivered to the township clerk to be —
what day and what time in the day? — A. The next day after election about
between 10 and 11 o'clock in the morning of the 6th of November.
Q. Before noon? — A. Yes, sir.
Q. Was the opera house locked at noon when you gentlemen went to din-
ner ?— A Yes. si r
Q. Who locked it?— A. I think Mr. McCIymont had the key.
Q. Did you see him unlock it again? — A. I was there when we came back;
I think Mr. McCIymont did.
Q. When you got in there was there anybody in there except Mr. Phillips?—
A. No, sir. Mr. Phillips was not there at noon; we locked it up. We didn't
lock it at night but left it with Mr. Phillips.
Q. Was there any way as far as you know, that anyone could possibly tamper
with that ballot box when you went to your lunch at noon? — A. No, sir.
Mr. Frankhauser. It may be understood that the board of county can-
vassers used the same figures that appeared in this statement book, Exhibit
50, and that they canvassed Mr. Smith's vote at 207 and Mr. Carney's at 150
In Union Township.
Redirect examination by Mr. Adams:
Q. When you got back there from your noon meal on election day to the
voting place, were you inside of the building, the opera house, where the elec-
tion was held, before Mr. McCIymont got back there? — ^A. No, sir; we all went
in together.
Q. Where were you when Mr. McCIymont came there? — ^A. I was on the out-
side of the door waiting for him to come; I think he had his key.
Q. Was the door opened before Mr. McCIymont got there? — A. No, sir; I
think two or three of us were waiting outside and I think Mr. McCIymont came
with the key and unlocked it.
Q. Was that the only door of the room in which the election was held?— -A.
Yes, sir; the other doors were all locked on the inside.
Q. Did you try them before you went away for noon? — ^A. I didn't myself;
but they were tried.
Q. But whether they were locked or not, you don't know of your own knowl-
edge?— A. They were locked.
Q. You can not swear they were locked? — ^A. I don't suppose I could; I don't
know that I went back and tried them, but they were tried all right.
Q. You say that it was raining on the morning of the 6th ; that you were up
there in Mr. McClymont's office to finish up the election returns?— A. Yes, sir.
Q. And put them In the envelopes and sealed them? — A. Yes, sir.
CARNEY VS. SMITH. 167
Q. You stayed in the office and Mr. McCJymont went out with the returns? —
A. He went to the post office.
Q. You don't know where he went, do you, of your own knowledge? — ^A. No,
sir; I do not. Of course, he went out.
Q. He went out of the office; that is the most you can say? — ^A. I know he
went to the post office, or was gone about long enough.
Q. You know he said he was going, but you don't know whether he went
or not? — ^A. Only what the record of the post office shows.
Mr. Adams. I move to strike out the last part of the witness's answer as In-
competent.
Q. Of your own knowledge, when you were in Mr. McClymont's office on that
morning when he started out with those election returns, you don't know
where he went, do you — ^you haven't any way of knowing of your own knowl-
edge?— A- I didn't go with him, but he went there, anyway; I guess that is
right
Q. But you don't know that he went there, of your own knowledge? You
didn't see him go there, did you? — A. I saw him go out of the door with a
package.
Q. You didn't see him go into the post office? — ^A. No, sir.
Q. You stated that a great many Progressives voted the State ticket, and
that some of the Progressives voted for Mr. Smith and some for Mr. Carney;
now, that was somewhat of a ballot you had there that day? — ^A. I know by
the way they talked. Judge, and by the way the count shows.
Q. As far as they talked, that Is what you heard? — ^A. Yes, sir.
Q. All you know besides that is what you saw in the ballots? — ^A. Yes, sir.
Mr. Adams. I move to strike out what the witness said In that regard as a
conclusion and not the best evidence, and as far as the ballots show anything
in that regard or what people told him, on the ground that it is hearsay.
Q. Now, you said, I think, that Mr, Carney had a large Republican vote; did
I understand you that way? — ^A. No, sir; I didn't intend to say that; I think
I said that Mr. Smith got a good many Progressive votes and that Mr. Carney
got some.
Q. Counsel asked you whether the Republican vote, in fact, was not pretty
badly split up that day, and you replied, in substance, that Mr. Carney had a
good many Republican votes? — ^A. Not many Republicans, but Progressives, if I
said that ; Mr. Smith and Mr. Carney both got Progressive votes.
Q. As a matter of fact, it is shown by £2xhiblt 51, shown you a while ago —
referring now to the statement book, page 7, of the votes given to the diflferent
candidates for the office of Representative in Congress — it appears, does it not,
that John M. C. Smith, according to the return I show you now and hold before
you, got 207 votes? — A. Yes, sir.
Q. And Claude S. Carney got 150? — A. Yes, sir.
Q. And Levant L. Rogers, 4? — ^A. Yes, sir.
Q. And Edward N. Dingley, 188?— A. Yes, sir.
Q. Mr. Dingley was the Progressive candidate for Representative in Congress
at that election and was voted for in that precinct ; you were an officer in that
day? — A. Yes, sir.
Q. I don't suppose you have any independent recollection outside of these
exhibits shown you here to-day what the votes were as given at that election
ill that precinct for the respective candidates? — ^A. If I hadn't seen the book
I could not have told, I could not carry it in my mind.
Q. You didn't keep the tally?— A. No, sir.
Q. It took you from 5 o'clock until 4 o'clock the next morning to complete
the count of the votes cast In that voting place at that election? — A. Yes, sir;
two clerks kept the tally books and the other three did the counting.
Q. So you don't know what those clerks put down on the tally sheets, whether
they put it down correctly as called oflf or not, do you, of your own knowledge,
I mean, from anything you saw there? — ^A. I was on one side of the table and
the clerks were on the other, we were all around the table, the clerks on the
opposite side.
Q. From your own knowledge you can't positively swear that they put them
down just as they were called off, can you? — ^A. Of course I think they did.
Q. I didn't ask you what you thought. — ^A. I think they did.
Q. Do you know of your own knowledge, the question is? — ^A. Of course I
didn't have my eye on them every minute, but I watched Mr. Margeson pretty
closely.
Q. But you were reading and calling off?— A. Yes, sir.
168 CARNEY VS. SMITH.
Q. Tou had a number of names on the ballot of different officers, it was a big
ballot? — ^A. Yes, sir.
Q. A great many names on it? — A. Yes, sir.
Q. Whether the clerks put down the tallies as called off and Just as called off
and credited them to the candidates, respectively, for whom they were called
off, you don't know of your own knowledge, do yu? — A. I will say this: That
I watched Mr. Margeson very closely, the other man I couldn't see.
Q. You could not at that time carry 207 votes in your head, could you? — ^A.
But they didn't get 207 ; they would get so many straight votes, then you would
get so many split votes.
Q. But you could not carry 207 or 150 or any other number of votes In your
head? — ^A. No, sir.
Q. For the candidates voted for in that place that day? — ^A. No, sir; I had to
lake It for granted that they set them down right.
Q. Now, can you say on your oath, of your own knowledge, not what you
suppose, but of your own knowledge, can you swear now that those clerks put
them down exactly as called off and credited them to the man for whom you
called them off; answer that, yes or no? — A. I think they did, that is all.
Q. Do you know of your own knowledge? — ^A. I don't know as 1 could swear
to it, but I think they did ; they would not have any object in doing any other
way.
Q. You can't swear they did, can you? — ^A. Mr. Margeson did anyway, I saw
him do it.
Q. What? — A. As far as I saw and I was watching him pretty closely.
Q. Did you see him put down every tally on that book ? — A. No, sir.
Q. So you couldn't say on your oath now that he put them down Just as they
were called off and credited them to the men entitled to tliem and for whom
you called them off, can you? — A. I would like to bet he did.
Q. Can you swear to it? — A. No, sir.
Mr. Frankhausee. I object to this cross-examination here of this witness;
he has not shown hiniF^lf to be a hostile witness so they would have the right
to ply him with searching cross-ex«niinatlon questions.
Q. The entire board of election, including the inspectors and clerks there at
that election that day, were Republicans, were they not? — A. No, sir; they
were not.
Q. The three Inspectors were Republicans? — A. They were not.
Q. Who w^ere not Republicans on that board that day as far as the inspectors
were concerned? — A. Mr. Bray was a Progressive and Mr. McClymont and Mr.
Margeson were Progressives; two Republicans and three Progressives.
Q. I am talking about the inspectors. — ^A. One was a Progressive and two
Republicans.
Q. They were all enrolled as Republicans Just prior to that election on that
election day, were they not? — A. I think they were all enrolled as Republicans;
I think they were.
Q. The two clerks at that election were Republicans? — A. They were Roose-
velt men — considered so.
Q. They were enrolleil as Republicans? — A. Yes, sir.
Q. Those were the only officers of the board that you had there that day?—
A. Yes, sir.
Q. Now, the township clerk there, after you got through on the morning of
the 6th with your count of that vote, had the key to that ballot box? — A. During
the election?
Q. After you got through with the election and they were taken up to his
office?— A. I had the key myself.
Q. The key to the ballot box? — A. Yes, sir.
Q. Where is the key now? — A. I have It in my house.
Q. At home?— A. Yes, sir.
Q. Did anybody else have a key to that ballot box that day that yon know
of? — A. I don't think so. There were but two keys, and they were on one
strinif
Q. Had you both keys? — A. Yes, sir; they were in a bunch of keys and I had
them there.
Q. The ballot box has been In the clerk's office ever since that election? —
A. Yes, sir.
Q. That was not your place of business where Mr. McClymont's office was? —
A. No, sir ; I have no office.
CARNEY VS. SMITH. 169
Q. You haven't the seal to that ballot box, have you? — ^A. No, sir.
Q. The clerk has the seal, hasn't he, that you used there? — ^A. I think so.
Q. But the seal you used on the envelopes there that day, containing these
election returns, the election clerk had there that morning? — ^A. I think so; he
bad when he sealed the envelopes.
Mr. Frankhauseb. Is it conceded that the vote canvassed was 207 for John
M. C. Smith and for Claude S. Carney, 150, are the same figures as shown by
these returns?
Mr. Adams. That Is conceded.
Q. I notice on Elxbibit 51, the statement book, the vote on that election that
day that there have been some figures scratched out and some of the words
describing the figures apparently changed — is not that true on i)age 1?
Mr. Matnabd. We object to that as incompetent and immaterial.
Q. That is, in the presidentitrl electors? — ^A. Yes, sir.
Q. On the Republican ticket that appears in several instances, does it not? —
A. Yes, sir.
Q. The tally sheet book Exhibit 52 to which your attention has been directed
several times, the tallies opposite the name of John M. C. Smith and opposite
the name of Claude S. Carney are lead pencil entries, are they not? — ^A- Yes,
■Ir; they are.
Q. And the figures carried out in the column, "Total straight votes" and
"Total split votes" and the total votes received opposite the names of John
M. C. Smith and Claude S. Carney are written in in lead pencil? — ^A. Yes, sir.
Recross-examination by Mr. Fbankhatjseb :
Q. What is your business? — A. Well, I am supervisor of the township and
I had an insurance business there; I sold out my business.
Q. Of the members of the election board in politics, you were a Republican? —
A. Yes, sir.
Q. And Byron W. Bray, another inspector, was a Republican? — A. He is a
Republican, but I think he voted for Roosevelt.
Q. Mr. Wooster; what was he? — ^A. He was a Republican.
Q. And Mr. McClymont? — ^A. He was a Republican but he voted for Mr.
Roosevelt, or I heard him say he did.
Q. And Mr. Margeson? — ^A. He is a Republican, but I think he voted for
Roosevelt.
Q. According to your best Judgment, three out of the five voted for Roose-
velt?—A. Yes, sir.
Q. The other two you think were Republicans? — A. Yes, sir.
Q. And voted for the Republican ticket? — ^A. Yes, sir.
By Mr. Matnabd:
Q. Mr. McClymont when he went to his office he had the box in which the
sealing wax and the election seals were and the appliances for election sup-
plies?— ^A. Yes, sir.
Q. When you got these prepared and completed as they now are, they were
pat in enveopes and sealed with sealing wax that he had there, the election
sopplies of that township? — ^A. Yes, sir.
By Mr. Adams:
Q. But they were not the seals you had used there in the voting place
that day? — ^A. J am not sure about that; I could't swear to that; there were
two or three seals around there.
Q. Your township clerk didn't carry the seal, did he, that your election board
used that day, in his possession, the one you used for sealing there on the
boxes on election day November 5, 1912, he didn't have this, did he, your
clerk? — ^A. I am not sure; I couldn't tell you about that; I never talked with
Um about it and never paid any attention to it; I think that there were two
or three seals about alike.
Q. The clerk keeps some of them and somebody else keeps some of them? —
A. I think the clerk has them, I don't know ; Mr. Bray had them.
Q. Several men had those seals? — A. No, sir; I don't think so; I think
perhaps the clerk has them, but I don't know ; that is no part of my business
that I notice. I think I saw two or three seals in a little clgnr box he had
them in, but I will not swear to that; I think two or three were in there.
Q. You don't know whether those were the seals used election day or not;
the same identical seals? — ^A. The same box was there and I think he had
170 CABlirEY vs. SMITH.
the same box the next morning, but whether all the seals were In there or
not I don't know.
Q. How far is Union City from CJoldwater, the connty seat of Branch County,
Mich.?— A. It is about 13 miles they call it.
Q. It Is located at the same place now as then — It has not been moved since? —
A. No, sir.
Q. You don't know of your own knowledge when the returns from tbat elec-
tion got into the county clerk's possession at Coldwater, do you? — ^A. I don't
know anything about it.
Q. You were not here when they came In — A. No, sir; I don't know any-
thing about that.
By Mr. Matnard:
Q. Do you know what course the mall takes from Union City to Cold-
water? — A. Well, I think If you mail a letter at noon there it gets here the
next morning.
. April 20, 1913.
WILLIAM J. BATBMAN, being sworn to testify to the truth, the whole truth,
and nothing but the truth, testified on behalf of the contestant, as follows :
Direct examination by Mr. Adams:
Q. Mr. Bateman, you live where? — ^A. Dimondale, Windsor Township.
Q. Did you live there on November 5, 1912? — ^A. Yes, sir.
Q. You had been living there for some time, I take it, before that? — A. Always
lived there.
Q. Your age is what? — A. Forty-one.
Q. Did you, on November 5, 1912, hold any official position in the county of
Eaton, township of Windsor? — A. Supervisor.
Q. You were supervisor of that township then on November 5, 1912? — ^A. Yes,
sir.
Q. As such supervisor you were a member of the election board at the elec-
tion of November 5, 1912, in Windsor Township? — ^A. Yes, sir.
Q. There was but one voting place In that township at that election? — ^A. Only
one.
Q. Who else acted on that election board at that general election? — A. Ray
Burnett, clerk ; Frank L. Smith and L. G. Van Derbeck, justice of the peace.
Q. Ray Burnett was township clerk? — ^A. Yes, sir.
Q. Those three gentlemen, together with yourself, constituted the election
board at that election? — A. Yes, sir.
Q. The election board was made up of you four gentlemen? — ^A, Yes, sir.
Q. How were the ballots used there at that election initialed? — ^A. As I now
remember, I think
Mr. Maynard. I object to that as Incompetent and immaterial and not the
best evidence: it is not competent for any officer to give testimony to Impeach
the ballots after the election has passed, and it is not rebuttal evidence, and
there is nothing in the notice of contest to warrant the taking of any such
testimony.
Q. How were the ballots initialed? How were the ballots, if at all, initialed
when handed to the voters at that election that day — ^how and in what place
were they Initialed? »
Mr. Maynard. The same objection.
Mr. Adams. We will consent that you may have that objection to all this
testimony without making it specially.
Mr. Maynard. Without renewing, may it extend to all the testimony?
Mr. Adams. Yes.
The Witness. Why, as far as I can remember now, they were initialed on the
upper left-hand corner.
Q. There was n little comer on the ballot that was perforated?— A. Yes, sir.
Q. And that perforation had the number of each ballot on?— A. Yes, sir.
Q. The ballots that you had there and handed out to the voters were num-
bered consecutively? — ^A. Yes, sir.
Q. On these perforated corners? — ^A. Yes, sir.
Q. Those initials were put on those i>erforated comers, were they not?
Mr. Maynard. I will make the further objection that It is leading.
Q. State where, on that ballot, the member of the election board who put
the initials on the ballot— where did he put them on the ballot?— A. I think they
were put on the perforated comer.
r
OABNBY VS. SMITH. 171
Q. Who initialed the ballots that day?— A. Mr. Van Derbeok.
Q. When those ballots were handed to the voter for marking, and when the
Toter handed them In to be put in the ballot box, state whether the perforated
comer of the ballot was or was not torn off before the ballot was put in the
ballot box?-— A. It was.
Q. Xow. when you came to count those ballots, did you assist In that
work? — ^A. Yes, sir.
Q. You may state whether or not there were any InitlalB on any of those
ballots when you counted them; I mean now the initials the inspector put
on? — ^A. Outside of the comer, do you mean?
Q. Yes, sir. — ^A. I couldn't swear positively.
Q. They were all initialed on the perforation? — A. I think they were.
Q. Now, when those ballots were counted, did they or not have that per-
forated corner on or had it been torn off? — ^A. It had been torn off.
Q. With that perforated corner torn off there was no identification of the
ballot at all. to identify it as having been a ballot that had been signed by any
member of the election board? — ^A. It wouldn't show anything if torn off.
Q. It would be on that iferforated corner that was torn off? — A. Yes, Bir.
Q. At that election, I show you the statement book of the township of
Windsor, Exhibit 82, statement book of the general election held on Tuesday,
the 5th day of November, 1912, in the township of Windsor, county of Eaton ;
is that one of the statement books that your board made up and signed of that
election?— A. I think it is.
Q. Is that your signature there on pnge 16? — A. Yes, sir.
Q. To the certificate at the conclusion of that exhibit? — A. Yes, sir.
Q. I call your attention to page 7 that is headed at the top of the page,
" Statement of votes " ? — ^A. Yes, sir.
Q. Will you Just read this part of it right here? — A. (Reading.) The whole
number of votes given for Representative in Congress, third district, was 344.
John M. C. Smith, 174 and Claude S. Carney 92, Levant L. Rogers 3, and
Edward N. Dingley, 75; total votes^ 344.
Mr. Adams. I offer Exhibit 82 in evidence.
Mr. Maynabd. I make the same objection to that.
Q. The number of the ballot each ballot voted there that day, and counted,
the initials that had been put upon the ballot to identify the ballot, those
you say were on that comer that had the perforation below the number and the
hiltials?— A. Yes, sir.
Q. Then when the voter passed his ballot up to be deposited in the ballot
box that perforated corner with the number and the initials of the Inspector
was torn off? — ^A. Yes, sir.
Q. There was no other number on the ballot, no other initials on the ballot
that you know of except those on that perforated comer? — A. No, sir.
Q. Now those ballots when you got all through with your count at that elec-
tion, what you do with them? — A. Placed them in the bnllot box.
Q. Then what was done? — A. Sealed up and locked.
Q. Do you known how long the ballots remained in the ballot box sealed up
and locked? — ^A. Until the spring election.
Q. Which was held when?— A. The 7th of April, 1913.
Q. Who had the custody of the ballot box containing those ballots up to
that April 7th, 1913, election?— A. The clerk of the township.
Q. Ray Burnett is still clerk of your township? — A. No, sir; ho is not now;
he was up until the spring election.
Q. Did you act on the election board there In April? — A. No, sir.
Q. You were a candidate for oflSce? — ^A. Yes, sir.
Q. Do you know what was done with those ballots that you put in there
November 5, 1912, finally, what became of them? — ^A. I supi>ose they were
bume<l up election day. When we got organized we generally do anyway and
I suppose they did those.
Q. Do you know whether they are In existence or not? — A. I think they are
burned up.
Cross-examination by Mr. Maynard:
Q. Was this the first time on November 5, 1912, that you ever sat on the
board of election? — ^A. No, sir; not the first time.
Q. How long have you been on the board? — ^A. Just elected chairman a few
times and was treasurer and clerk once.
172 CABNEY VS. SMITH.
Q. For several years have you served on the election board? — ^A. I presume
three or four times.
Q. Where did you get those ballots you voted that day? — ^A. Of the clerk
here.
Q. The county clerk? — A. Yes, sir.
Q. Were they the uniform ballots furnished by the county clerk during that
election? — A. Yes, sir.
Q. Were the other officers here from the different precincts present the same
day you got yours, to get them for their precincts? — A. I don't remember
whether there was anyone else here or not. The supervisor was up with me.
Q. Have you ever been here to get the ballots before this election? — A. Not
before that.
Q. Somebody else got the ballots? — ^A. I was not supervisor; that was the
first time I had been supervisor; that was the first chance I had to come and
get them.
Q. When you sat on the board any other time you were chosen to sit? — A.
Yes, sir.
Q. Those ballots were delivered by you to the board, were they, on November
ft, 1912?— A. Yes, sir.
Q. And opened there In the precinct? — ^A. Yes, sir.
Q. Did soa>e oue initial each ballot as It was delivered to the voters that
day? — ^A. Yes, sir.
Q. Were you present all day at that election? — ^A. Yes, sir.
Q. Did you stay to the count? — ^A. Yes, sir.
Q. Do you know whether anyone voted there that day who was not legally
entitled to vote at that election?
Mr. Adams : I object to that as calling for the conclusion of the witness and
as incompetent.
A. No, sir.
Q. What have you to say whether that was an honest, fair election?
Mr. Adams. Objected to as incomi)etent and calling for the conclusion of
the witness and not a statement of facts.
A. It was.
Q. When you counted up the ballots was there an honest count made of the
ballots that were voted there that day? — A. Yes, sir.
Q. Did John M. C Smith get credit for any more votes than he was enti-
tled to at that election? — A. No. sir.
Q. Did Claude S. Carney receive credit for all the votes cast for him at that
election? — A. Yes, sir.
Q. As far as you know every ballot that was handed out to voters that day
was Initialed by one of the board of election inspectors?— A. Yes, sir.
Q. And the vote recorded as the voter delivered it? — ^A. Yes, sir.
Q. Then the ballot box was opened, and there was a square, honest count? —
A. Yes, sir.
Redirect examination by Mr. Adams :
Q. Mr. Bateman, one question, those ballots that were marked in the way
you have Indicated there that day were the only ballots at that election that
had the different candidates' names on who were running for the office of
Representative In Congress In the third congressional district? — ^A. Yes, sir.
Q. Those were the only ones that had the candidates on for the office of
Representative In Congress at that election? — A. I suppose that Is so, they
were the regular ballots.
Q. You didn't see but one ballot there, one ticket there, one sheet of paper,
that had the different candidates on for State offices, county officers, and for
the office of Representative in Congress? — A. Yes, sir.
Q. Those were the ones that were marked In the way you have indicated?—
A. Yes, sir.
Q. Is that true? — ^A. Yes, sir.
Mr. Maynard. The time having passed for the contestee to meet any of the
evidence oCfered on this subject, we will add that to our objection made on the
start
Mr. Adams. We will consent now that you can answer It if you desire, even
though the time is passed, we will give you a reasonable time in whi'ih to
answer.
CABNEY VS. SMITH. 173
Cross-examination by Mr. Maynard:
Q. I show you Exhibit 82 and ask you to state again the number ol votes
that were given to John M. C. Smith for Member of Congress from the third
congressional district, on the Republican ticket at that election? — ^A. One hun-
dred and seventy-four.
Q. Now I will turn to some of the other officers that were running for office
on the Republican ticket in that precinct ; take the office of drain commissioner,
how many candidates were running for the office of drain commissioner at that
election?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. Two candidates.
Q. Who were they? — ^A. Ernest Jj. Hunter on the Republican ticket, and
Fred Milbum on the Democratic ticket.
Q. How many votes did Mr. Hunter have, the candidate for drain commis-
sioner, receive at that election on the Republican ticket?
Mr. Adams. I object to it as irrelevant and immaterial, and if you will
consent that this objection may apply to all questions you put of like character,
with that understanding I will not object especially to every question.
Mr. Maynard. We will concede that ; the same objection shall apply to each
of these officers.
Q. How many? — A. One hundred and eighty-two for Mr. Hunter on the
Kepublican ticket.
Q. For the office of county surveyor? — ^A. One hundred and eighty-three on
the Republican ticket
Q. For the office of coroner on the Republican ticket, how many men ran
for that office?— A. Four. I think.
Q. I mean on the Republican ticket?— A. Two, (ieorge E. Stokes and William
6. Mlsner, one has 182 and one has 180.
Q. Take the office of circuit court commissioner, how many candidates were
there on the Rpj)ublican ticket? — A. Two.
Q. Who?--A. John C. Nichols and Harry H. Hartrow. Nichols received 180
and Hart row 1S2.
Q. On the office of register of deeds, how many candidates were there on
the RppuMican ticket? — A. One.
Q. Who was he? — ^A. Mr. Robbins; he received 184 votes.
Q. The office of prosecuting attorney, how many candidates were there on the
Kt'pubJican ticket? — A. One; he received 184 votes.
Q. That appears from this Exhibit 82 does it? — ^A. Yes, sir.
Q. On page 10 at the top of the page, how many Candida ♦^^h wcmc there on the
Republican ticket for county treasurer? — A. One; he rec'^fivod 18:t votes.
Q. On page 9, how many candidates were there on the Republican ticket for
Judce of proljate? — ^A. One; he received 208 votes.
Q. Who was the other candidate on that ticket? — A. Mr. Davis.
i). What tlckfet was he on? — A. The Democratic.
Q. >Iow many votes did he receive? — A. Ninety-seven.
Q. How many votes did the Republican candidate re'.*:^iic for tlio office of
sheriff?— A. Mr. Storrs received 169 votes.
Q. How nmny for the office of county clerk on the RepubJicau ticket? — A. Mr.
Foid; 182 votes he received.
Q. From an inspection of this record Exhibit 82 did John M. C. Smith
receive as many votes as either of the candidates on the Republican ticket for
the office of Judge of probate, county clerk, county treasurer, surveyor, or the
dm in commissioner?
Mr. Adams. Objected to as Incompetent and Immaterial and the conclusion of
the witness.
A. I don't think he received as many.
Q. He receiver 174?— A. Yes, sir; and the others ran 180 or 182, along thera
Redirect examination by Mr. Adams :
Q. How many miles did you have to travel in coming here to give your testi-
mony?— A. I think pretty nearly 12 miles. .
Q. And 12 miles to get back? — ^A. Yes, sir.
Q. You were a Republican on November 5, 1012, and was elected supervisor on
the Republican ticket? — A. At the spring election, yes, sir.
Q. Yon were elected in the spring of 1912 as supervisor of that township?—
A. Yea, sir.
74 CABNEY VS. SMITH,
Mr. Maynard. I would like to ask the other side if they will concede that the
contestee's answer was seived on Claude S. Carney in the city of Kalamazoo
on the 3d day of February, 1913?
Mr. Adams. It is admitted that the contestant served his notice of contest
upon the contestee on January 8, 1913, and that the contestee served his answer
to that petition uix>n the contestant on February 3, 1913.
BAY BURNETT, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestant as follows :
Direct examination by Mr. Adams:
Q. Mr. Burnett, your full name is Ray Burnett? — ^A. Yes, sir.
Q. Your age is what? — A. I am 25.
Q. You live where? — A. Dimondale, in Eaton County, Windsor Township.
Q. How far did you travel to come here from your home to-day? — ^A. Twelve
miles.
Q. It is 12 miles back to your home? You have to go 12 miles to get back?—
A. Yes, sir.
Q. Were you or not a member of the election board 1^ the township of Wind-
sor at the general election held in that township November 5, 1912? — Al. Yes, sir.
Q. Did you at that time, and had you for several months before that date,
held any official position in the township of Windsor? — A. I was clerk of the
township.
Q. You had been before that date elected clerk and qualified and were you on
that day acting as clerk of the township of Windsor? — ^A. Yes, sir.
Q. Were you a member of the election board November 5, 1912, at the general
election in that township l)eiug held in this State? — ^A. Yes, sir.
Q. Do you know who initialed, if anybody did, the ballots on which the can-
didates' names for the office of Representative in Congress was printed at that
election day?
Mr. Maynard. This is all taken subject to our objection.
Mr. Adams. Yes; it may be so understood that the objection that was made
to the testimony of Mr. Bateman when on the witness stand may apply to the
testimony of this witness or any other witness we offer to-day with like effect
as if counsel made the objection to the several questions propounded.
Q. Who did? — A. Mr. Van Derbeck, the justice of the jieace.
Q. He was a member of the election board that day? — A. Yes, sir.
Q. Was Mr. Bateman also a member of the board? — A. Yes, sir.
Q. And Mr. F. L. Smith?-— A. Yes, sir.
Q. Mr. Van Derbeck and Mr. Bateman were members of that election
board? — A. Yes, sir.*
Q. Now, can you state at what particular place on those ballots the InitiaU
were written? — A. Yes, sir.
Q. Where? — ^A. In the upper left-hand corner.
Q. Was that corner any different from any other corner of that ballot? — A. It
was perforated.
Q. What was the size of that perforation? — ^A. I suppose there was a number
on there.
Q. Those ballots that you had out there that day were numbered consecu-
tively, were they not? — A. Yes, sir.
Q. Those ballots had been furnished your election board by the county clerk
' of the county of Eaton? — ^A. Yes, sir.
Q. To be used by your board for the voters who wanted to vote? — A. Yes, sir.
Q. Now, the numbers that were on those ballots were printed on there when
the ballots were placed in the hands of the election board, were they not? —
A. Yes, sir.
Q. The board did not put those numbers on? — ^A. No, sir.
Q Those numbers were nearer the corners than the perforations? — ^A. Yes, sir.
Q. Now, when the voter got his ballot there that day the different voters that
voted there that day, from the election board, state whether the corner of the
ballot which had the perforation across the conier was indicated the number of
the ballot when the voter received the ballot? — A. Yes, sir; it was.
Q. After the" voter had brought his ballot to the board and handed it in to be
deposited in the ballot box what. If anything, did your board do with that per-
forated corner? — ^A. Tore it off.
Q. Then after tearing off the perforated comer which contained the Initials
and number of the ballot state whether there was any proof left anywhere on
OABNEY VS. SMITH. 175
that ballot of any initials on the ballot when the various ballots were put In
the ballot box. — ^A. I didn't see any.
Q. When you counted those ballots, when they were counted, rather, by the
board after the polls closed, were those perforated corners a imrt of the ballot
or were they not? — ^A. They were not
Q. That was no part of those ballots you counted? — A. I didn't see any.
Q. Were there any initials on the ballots you counted? — ^A. I didn't see any.
Q. Was there more than one ballot there that day which contained the names
of the Representatives for Congress — the different candidates? — ^A. Just one.
Q. I mean one form of ballot Of course, you had — there were — do you know
how many ballots were cast there that day, all told, that contained the names
of the different candidates for the various offices voted for at that election,
about how many ballots were cast, deposited in the ballot box? — A. I don't
know just the number.
Q. Does that book refresh your recollection any? — A. Yes, sir.
Q. Can you $)tate about how many ballots there were voted there that day
for the candidates for Congress? — A. No, sir; I don't remember.
Q. After you got through counting the ballots do you know what was done
with those ballots on which these different caadidates for Rei^resentatives In
Congress were printed? — ^A. They were put in the ballot box.
Q. What was done with the ballot box? — ^A. It was sealed and locked.
Q. Then what was done with the box? — A. It was taken over to my house.
Q. Did you retain it as township clerk? — A. Yes, sir.
Q. How long did you retain it with those ballots in it locked up and sealed,
as you have indicated? — ^A. Until thfs spring.
Q. What time this spring? — A. The general election this spring, the 7th of
April.
Q. The first Monday in April of this present year? — ^A. Yes, sir.
Q. From the time that ballot box was locked, when your board got through
counting those ballots, those ballots in question were in that ballot box up to
the April 7, 1913, election. Do you know, of your own knowledge, whether that
ballot box was opened between those two dates? — A. It had not ; no, sir.
Q. What was done with those ballots that were put in there November
5, 1912? — A. They were kept there until they were oi)ened up on the 7th.
Q. Then what was done with them? — A. I think they were burned.
Q. Did you use that ballot box for the votes that were cast at the Ajnil 7,
1913, election in that township? — A. Yes, sir.
Q. Did you see an effort being made to burn those ballots? — A. I saw them
In the stove; yes, sir.
Q. Do you know whether there are any of those ballots In existence now, of
your own knowledge? — ^A. None that I know of.
Q. Where did you see an effort being made to burn them? — ^A. In the hall
where the election was held.
Cross-examination by Mr. Maynard:
Q. Those ballots that you say the voters used there on the 5th day of Novem-
ber, 1912, were called the official ballots? — A. Yes, sir.
Q. Did that official ballot have all the names of all the officers of ail the
parties that were used there at that election? — A. Yes. sir.
Q. Did you see tliose ballots when opened there that morning? — A. Yes, sir.
Q. Do you know where they came from — where the ballots came from? —
A. Mr. Bateman brought them there.
Q. What sort of a package were they in? — A, la a sealed package.
Q. He brought them there to the polls? — A. Yes, sir.
Q. They were opened up there, were they? — ^A. Yes, sir.
Q. Who was the unused ballots given to? — A. They were put In the ballot
box.
Q. On the morning of the election? — A. They were put in with the rest of
them.
Q. That was at night?— A. Yes, sir.
Q. I mean in the morning, when you started to vote, who had charge of the
unused ballots? — A. The justice of the peace.
Q. The one who initialed the ballots? — A. They were all of them In there.
They laid on a table.
Q. They had a table there to put those ballots on? — ^A. Yes, sir.
Q. Who unrolled them? — A. Mr. Van Derbeck.
176 CARNEY VS. SMITH.
Q. When they delivered those ballots to the officer with the Initials on did
they call to you the number of the ballot that was issued? — ^A. Yes, sir.
Q. Who assisted you in keeping tally there as clerk? — A. R. R. Underwood.
Q. He held that office? — A. Yes, sir ; he was clerk.
Q. He was selected by the board and acted as clerk of that board? — ^A. Yes,
sir.
Q. At that election?— A. Yes, sir.
Q. When they called the numbers of the ballots what did the clerks do?— ^A.
They wrote their names down.
Q. Wrote down the names of the men the ballots were delivered to? — ^A.
Yes, sir.
Q. And put down the number of the ballot? — A. Yes, sir; they didn't put down
the number of the ballot.
Q. The number was printed, was It not? — A. Yes, sir.
Q. The number of the voter was called? — ^A. Y'es, sir.
Q. Who did that?— A. Mr. Bateman.
Q. He was the supervisor of the township at that time? — ^A. Yes, sir,
Q. So when these ballots were delivered to the voters, as you understand It,
they were initialed by one of the justices of the peace? — ^A. Yes, sir.
Q. Mr. Van Derbeck? — A. Yes, sir.
Q. When he had prepared his ballot in the booth he passed through to Mr.
Bateman, the supervisor, and delivered the ballot to him to be deposited in
the box? — A. Yes, sir.
Q. Which side of the booth were you sitting? — A. The left-hand side.
Q. As you went in? — A. As you went in the booths.
Q. They went in on the right-hand side of the gate — of the booths?— A.
Yes, sir. •
Q. And received a ballot and went through the booths and came out on the
same side you were sitting? — A. Yes, sir.
Q. Mr. Adams asked you if you knew whether all the ballots that were
voted there — whether you knew of your own knowledge that the comer was
torn off with the initialing of each ballot; is that true, witness? — ^A. I think
they were; sure.
Q. You could see that all, could you, and did? — A. Yes, sir; he stood In
front of me.
Q. Did you look at each ballot to see? — ^A. I didn't take particular pains to
look at each one. They were supposed to be torn off.
Q. You don't know It, do you, of your own knowledge? — ^A. I couldn't say
that I saw every one of them torn off. There was none found on there when we
counted the ballots. We found no corners on them when we counted them.
Q. Did you look for that? You didn't see them all when you counted them?—
A. No. sir.
Q. You kept tally, didn't you?— A. Yes, sir.
Q. It was a very long ballot — lots of names on It? — ^A. Yes, sir.
Q. You had all you could do to keep tally, didn't you? — ^A. Yes, sir.
Q. You kept it straight, didn't you? — ^A. I did my best to; yes, sir.
Q. You think it was an honest, straight count, do you? — ^A. Yes, sir.
Q. Were all the candidates given the correct count of the votes cast there for
them that day?— A. I think they were.
Q. Tlds was not your first experience on the board? — A. I have been ap-
pointed two or three times.
Q. You are acquainted there, bom and brought up In that township?— A
Yes, sir.
Q. You are acquainted with the people?— A. Yes, sir; quite well.
Q. Tt was a good, quiet election, was It not — no trouble at the polls?— A.
No, sir.
Q. As far as you know. It was an honest election? — ^A. Yes, air.
Q. Wi*ness, as far as you know, there was no ballot handed to any voter to
be voted but what wvh initialed by Mr. Vanderbeck before he received it?— A.
As far as I know; yes, sir.
S. G. VANDERBECK. being sworn to testify to the truth, the whole truth,
and nothing but the tmth, testified on behalf of the contestant as follows:
Direct examination by Mr. Adams:
Q. Mr. Vanderbeck, your Initials are what? — A. S. G.
Q. You live in Windsor Township, county of Baton? — ^A. Yes, sir.
OABKEY YB. SMITH. 177
Q. How far from Obarlotte?— A. We call it 12 miles.
Q. So you liave traveled miles in coming here to-day and will have to travel
12 mUes to get back home? — A. Yes, sir.
Q. November 5, 1912, did you fill any official position in the township of
Windsor?-— A. Yes, sir.
Q. What? — ^A. Justice of the peace.
Q. You had been justice of the peace in that township up to and including
that date for about how long? — A. A little over 10 years.
Q. So you were a member of the election board at the November 5, 1912, gen-
eral election that was held in the township of Windsor? — ^A. I was.
Q. What did you do In the way of looking after the ballots while the vote
was being taken down there that day? — ^A. I initialed them.
Q. There was but one ballot at that election in that township that day that
had the names of the candidates on? — ^A. I think so.
Q. That was a large ballot and had all the State officers and county officers
and the different candidates for Representatives in Congress from the third
congressional district printed on one and the same ballot? — A, Yes, sir.
Q. That ballot was the official ballot, was It not? — ^A. Yes, sir.
Q. And was furnished by the county clerk of Eaton County to your super-
visor?—A I suppose It was.
Q. State whether one comer of that ballot had a perforated line across it. —
A It did; yes, sir.
Q. About how much was left above the perforated comer of that ballot, where
it was perforated? — ^A. Why, an inch to an inch and a quarter, maybe.
Q. State whether or not that ballot that you handled there that day had
printed numbers on that perforation nearer the comer than the perforated
line.— A. Nearer the comer than the i)erf orated line?
Q. Yes. — ^A. Yes, sir.
Q- Those numbers were consecutive numbers, were they not? That is, you
had a certain number of bnllots there that day for election purposes and they
were numbered consecutively, were they not? — ^A. Yes, sir.
Q. You did all the initialing that was <lo:i<j that day, did you? — A. I think so.
Q. Whose initials did you use or write on the l>allot? — ^^V. My owa.
Q. Where on those different ballots did you write your initials? — ^A. On the
upper left-hand corner of the backside.
Q. On the backside of the ballot? — ^A. Yes, sir; where there was no print-
ing on.
Q. Where, with respect to that perforated line? — ^A. Above the perforated line.
Q. Do you mean nearer the comer than where the perforated line was? — ^A.
Yes, sir.
Q. Those ballots were numbered on that perforated comer and your initials
were there and they handed one to each voter as he came in to vote? — ^A.
Yes, sir..
Q. Then the ballot when the voter got it marked was handed to one of the
election board? — A. To the chairman.
Q. What was done, if anything, in reference to that perforated comer before
it was put in the ballot box? — ^A. I suppose it was torn off.
Q. You understood that was what the law required to be done?
Mr. Maynard. I object to what he understood.
(Xo answer.)
Q. If the comers were torn off the various ballots voted there that day, state
whether that tore off the number of the ballot and also the initials you had
put on.— A. I think it did.
Q. Did you initial any of those ballots at any other place than the place you
have Just indicated? — ^A. No, sir.
Q. Now, were you there when the ballots were countetl? — A. Yes, sir.
Q. Did you notice whether any of those perforated comers were on any of
those ballots that had been put into the ballot box? — A. They were not
Q. They were all torn off, were they?— A. Yes, sir.
Q. There were no numbers on the ballots when you counted them? — ^A. No, sir.
Q. None of the initials on those ballots when you counted them were on? —
A No, sir.
Q. That is correct, is it?— A. Yes, sir.
Q. There were no initials of any kind on the ballots when you counted them,
on the back of them? — A. I don't think there were; there was not supposed
to be.
285—13 12
178 CARNEY VS. SMitH.
Q. What was done with those ballots that were counted there that day for
Representative In Congress for the different candidates, when you completed
your count and got through and ready to adjourn? — A. They were put In the
ballot box and locked and sealed up.
Q. The box was locked and sealed up? — A. Yes, sir.
Q. Did you or not act on the election board at the spring election, April 7,
1913, in that township?— A. I did.
Q. Do you know whether there were any ballots in the ballot box when you
got ready to begin your election April 7, 1913, in Windsor Township, when you
got ready there, did you see any ballots? — A. The box was emptied whai we
got ready to begin the election.
Q. Did you see that ballot box unlocked on the morning of April 7, 1913?— A.
Yes, sir.
Q. What was in it?— A. Why. the used and not used ballots and the comers
off those ballots that had been used.
Q. Were those ballots that you have just been talking about in your last
answer that had been used there voted there at that election of November 5,
1912?— A. Yes, sir.
Q. What was done with those ballots that you took out of that ballot box be-
fore you began your election on the 7th of April, 1913? — ^A. They were burned up
Cross-examination by Mr. Matnard:
Q. Did you see them burned? — A. I did.
Q. When you locked this box up last November, who locked it? — ^A. Mr.
Batemau, I think.
Q. Are you sure about that, or are you just guessing about it? — ^A. I am sup-
posed to carry the key.
Q. Do you know who locked it? — A. No, sir.
Q. You don't know that it was locketl, of your own knowledge? — ^A. I do.
Q. How do you know?— A. I saw It locked.
Q. Who did you see lock it? — A. I couldn't tell you,
Q. Did you have tlie key? Did j'ou seal it? — A. I sealed it.
Q. How did you seal it? — A. By putting the township seal on some hot wax
melted onto the cloth that covered up the hole.
Q. What did you do with the key? — A. Took it home with me.
Q. Have you got the key yet? — A. I have not.
Q. Do you know^ who took the key? — A. No; I don't know who has got the
key.
Q. Witness, you initialed those ballots, did you, thinking you were obeying
the law when yon Initialed them in the upper left-hand corner? — ^A. I did.
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
Q. You were acting in good faith in putting the initials there? — ^A. Yes. sir.
Q. You supi)osed that was the lawful place? — A. Yes, sir.
Q. Had you acted in that capacity before? — A. Yes, sir.
Q. How many times had you ever acted? — A. I couldn't state.
Q. For 8 or 10 years you have been acting In that capacity? — ^A. No, sir.
Q. How long, several years? — A. Well, I couldn't tell you just how many, but
I know I put my initials on l)efore that.
Q. You have been in the habit, haven't you, of putting your Initials above the
perforated line instead of below?
Mr. Adams. Objected to as irrelevant and immaterial.
A. Yes, sir.
Q. You have been acquainted with the people there in the township of Wind-
sor for a great many years? — A. Yes, sir.
Q. Bom and brought up there? — A. I was not born there.
Q. You have lived there a good many years? — A. Yes, sir.
Q. You are acquainted with the i)eople? — A. Yes, sir.
Q. Ten years you have been justice of the peace, haven't you? — ^A. I think it
will be the 4th of July.
Q. You could not run for that office and be elected without being a R^ub-
lican and well known, could you, and known to be an honest man? — ^A. Not very
handy.
Q. Now. witness, was that an honest election?
Mr. Adams. Objected to as incomi)etent and immaterial.
A. Yes, sir.
Q. Do you know of anything being done there that in any way hindered
the voters from voting for the candidates they desired to vote for throughout
the day? — ^A. I did not.
CABNEY VS. SMITH. 179
Mr. Adams. I object to that as incompetent and Immaterial.
Q. Did you assist in counting up the ballots? — ^A. Yes, sir.
Q. At the closing of the polls? — ^A. Yes, sir.
Q. Was there an honest count made? — ^A. I think so.
Q. Did Claude S. Carney receive all the votes that were cast for him at
that election in that precinct?— A. I believe he did.
Q. Did John M. C. Smith receive any more than were cast for him at that
election in that precinct?— A. I don't think he did.
Q. Did you deliver the votes or did Mr. Smith? — A. I delivered them.
Q. Witness, you initialed every ballot that was handed to voters that day;
you know that?— A. Yes, sir.
P. L. SMITH, being sworn to testify to the truth, the whole truth, and noth-
ing but the truth, testified as follows :
Direct examination by Mr. Adams:
Q. Mr. Smith, your initials are F. L.? — A. Yes, sir.
Q. You live in Windsor township? — A. Yes, sir.
Q. Your age is what? — ^A. I am 54.
Q. You have lived in that township for quite a number of years? — A. Yes,
sir.
Q. Did you on November 5, 1912, hold any official position in the township
of Windsor? — ^A. Yes, sir.
Q. What was it? — ^A. Justice of the peace.
Q. How long had you been justice of the peace up to that date, including
that day? — ^A. Two or three yeara
Q. By virtue of your office as justice of the peace in that township you were
qualified under the statute and became eligible to be a member of the election
board?
Mr. Maynabd. I object to that as calling for the conclusion of the witness
and as leading.
Q, You were a member of the Section board? — ^A. Yes, sir.
Q. November 5, 1912, in Windsor township? — A. Yes, sir.
Q. And acted as such on the board? — ^A. Yes, sir.
Q. From the time the polls opened until the work of that board was com-
pleted?—A. Yes, sir.
Q. Mr. Bateman, Mr. Burnett, and Mr. Vanderbeck were associated with
you as members of the election board thnt day? — A. Yes, sir.
Q. How far did you travel in coming here to-day? — A. About ten miles and
A half.
Q. You have to travel back ten miles and a half to your home? — ^A. Yes, sir;
I exDect so.
Q, Well, Mr. Smith, now, who, if anybody, Initialed the ballots there that
day at that general election? — X. Mr. Vanderbeck.
Q. Did anybody else Initial any ballots there that day that you know of? —
A. No, sir.
Q. What did you do while the voting was going on? — A. I took down the
names and the numbers wh«i they came out.
Q. Mr. Bateman did what? — ^A. He put the ballots in the box.
Q. Received them from the voters?— A. Yes, sir.
Q. You may state whether you noticed Mr. Bateman tear the perforated
comer off the ballots before they were put into the ballot box. — ^A. I think so.
Q. What was done with those perforated corners that were torn off? — A.
They were put in another box.
Q. What did Mr. Burnett do while the voting was going on? — A. He was the
clerk.
Q. Did you notice where those ballots were initialed— what part of the
ballot? — ^A. Not particularly at the time.
Q. Did you afterwards? — ^A. Why, no; I don't know as I did particularly.
Q. Did you look at any of those comers that were torn off at any time? — A.
Not to notice them ; no, sir.
Q. Now, you were there when they counted the ballots that day? — A. Yes, sir.
Q. Did you notice whether there was one corner of each ballot torn otl when
you counted, that is, that had been torn off? — A. Yes, sir.
Q. Were there any numbers on those ballots that you counted that had been
voted?— A. No, Bir.
180 CARNEY VS. SMITH.
Q. Every ballot that had been voted, the number that was on the back of the
ballot had been torn off before putting It in the ballot box? — ^A. Yes, sir.
Q. Did you notice whether the Initials of Mr. Vanderbeck were on the back
of any of those ballots that you counted? — A. I didn't see any.
Q. Were you a member of the election board at the spring election held In
that township on April 7, 1913?— A. Yes, sir.
Q. Do you know what was done with the ballots that were voted November
6, 1912, when your board got there with this work at that time?— A. They were
put In the stove and burned up.
Q. When? — A. In the morning before we commenced to vote.
Q. They were put in the stove that day?— A. The 7th of April, 1913.
Q. When you got through with your work on the night of November 5, 1912,
what did you do with those ballots that had been voted on that day? — ^A. Put
them in the ballot box.
Q. What was done then? — A. They were locked and sealed.
Q. You next saw those ballots, you say, on April 7, 1913? — ^A. Yes, sir.
Q. When your election was held In that township? — A. Yes, sir.
Q. Did you see that same — use that same ballot box there April 7, 1913? — ^A.
That was the only one w^ had ; we used all we had.
Q. On April 7, 1913, did you open up this ballot box you had used there
November 5, 1912? — A. Yes, sir.
Q. Was it or not locked and sealed when your board met there to hold the
election April 7, 1913?— A. It was.
Q. Did you see It unlocked? — A. Yea, sir.
Q. State whether you saw the ballots taken out of that box. — ^A. I did.
Q. Were those the same ballots that were taken out there April 7, 1913, that
were put in there the night of November 5, 1912? — ^A. I didn't look at them.
Q. You say you saw them burned? — ^A. Yes, sir; I saw them burned.
Cross-examination by Mr. Matnabd:
Q. Do you remember who burned them? — ^A. I couldn't say. One of the
appointed men, I think, burned them, but I am not sure.
Q. Who was appointed? — A. Mr. Murphy was appointed chairman, and Mr.
Bateman was clerk, and another man was assisting there.
Q. Now you say that you handed the ballots out? — ^A. No, sir.
Q. Didn't you hand the ballots to the voters? — ^A. Yes, sir.
Q. Who did that?— A. Mr. Vanderbeck.
Q. What did you do? — A. I wrote down their names and took the numbers
of the tickets.
Q. On the tally book? — A. No, sir; on a list separate, checked them as they
voted.
Q. You took down the names of the men to whom the ballots were delivered
with the number of the ballot? — A. Yes, sir.
Q. The ballots were numbered from one up, consecutively? — ^A. Yes, sir.
Q. Then when they i>assed through the booths and presented their ballots
there, did you check them off — did they call out the number?— A. Yes, sir.
Q. So you would know tliat It was the same ballot they received? — ^A. Y^s, sir.
Q. That Is the part you took in the election? — A, Yes, Blr.
Q. How long have you been a resident there In the township of Windsor? —
A. Upward of 40 years.
Q. You are acquainted with the people who voted there, are you not? — ^A. Yes,
sir; to quite an extent.
Q, Was It an honest election? — ^A. Yes, sir.
Q. Did you help count up? — ^A. Yes, sir.
Q. It was an honest count, was It not? — A. Yes, sir.
Q. Claude S. Carney, you think, got all the votes credited to him that were
cast for him at that election? — A. Yes, sir; all we could find.
Q. Did John M. C. Smith get any more than were cast for him by the
voters? — A. No, sir.
Q. Witness, when that ballot was handed to the voters that day were tliey
initialed before that by Mr. Vanderbeck, the justice of the peace? — ^A. Yes, sir.
Q. Then, as far as you knew, they went to the booths and marked their bal-
lots and folded them up; they came out and delivered them to Mr. Bateman,
who was the supervisor and chairman of the board, to be deposited in the
ballot box? — ^A. Yes, sir.
Q. As far as you know, that ballot was intact just as It had been initialed by
Mr. Vanderbeck when handed to Mr. Bateman? — A. Yes, sir.
OABNEY VS. SMITH. 181
Redirect examination by Mr. Adams:
Q. Yon were a Republican at the time of the November 5, 1912, election? —
A. Yes, sir.
Q. Mr. Vanderbeck was a Republican? — ^A. I couldn't say.
Q. He was elected on the Republican ticket as justice of the peace? — ^A. Yes,
sir.
WILLIAM J. BATEMAN, recalled for further cross-examination by Mr. May-
nard, testified as follows:
Q. Mr. Bateman, did every voter who voted there that day present to you
a ballot on which were the names of the candidates for the several ofllces voted
for were printed — did he present to you a ballot with the initials of Mr. Van-
derbeck on the comer when he handed It to you? — ^A. He did; yes, sir.
Q. When you received that ballot from the voter what was the first thing
you did? — ^A. Tell the man's name and number and tore ofl! the comer of it.
Q. The number of his ballot? — A. Yes, sir; and tore the corner ofl!.
Q. The voter had nothing to do with tearing the comer off? — ^A. No, sir.
Q- After you tore the corner off you voted It after It came into your hands
after the voter got through with it? — A. Yes, sir.
Q. When you did that did you do that In good faith? — ^A. Yes, sir.
Q. Did you think at the time it was the law that the initials should be
placed above the perforated line, or below?
Mr. Adams. Objected to as imcomi)etent and immaterial.
A. I did.
Redirect examination by Mr. Adams :
Q. Now, Mr. Bateman, I thought perhai>8 you did not understand the question.
Now, at the time that you discovered that the initials were put on the perfor-
ated comer of the ballot that day while the election was in progress, you were
rather surprised yourself, you thought it was wrong to put the Initials there? —
A. I didn't know exactly which place it was, but the older members of the
board said that was right.
Q. You thought it was not right? — ^A. I did at the time, Just as far as I knew.
Q. You were a new member of the board? — ^A. Yes, sir.
Q. Did you give way to the Justice of the peace who had been on the board
for some years before? — ^A. Yes, sir.
Recross-examinatlon by Mr. Maynabd:
Q. You didn't know what the law was, did you? — A. Not exactly; no.
Q. You have found out since, haven't you? — ^A. Yes, sir.
Q. But at that time you acted in good faith, supposing you were doing it
bonestly and as the law required? — ^A. Yes, sir; I read the law part way down.
Redirect examination by Mr. Adams :
Q. I call your attention to. page 55 of the revision of 1911, State of Michigan,
laws relating to elections, paragraph 159, section 3632; you didn't know that
was the law there that day? — A. No, sir.
Q. On November 5, 1912?— A. No, sir.
Q. I show you page 61 of this same law ; you did not know on November 5,
1912, when you were on that election board that there was such a provision as
that in the statutes of the State of Michigan as section 367? — A. Yes, sir.
Q. Did you know that there was such a statute as that on November 5,
1912?— A. I did.
Q. Did you know on* November 5, 1912, when on that election board when you
were counting the ballots that there was any such a provision as that con-
tained in section 173, pages 62 and 63, of this book, revision of 1911 of the
State of Michigan laws relating to elections? — A. I didn't understand it
exactly that way ; no, sir. I thought it was simply on the corner.
Recross-examinatlon by Mr. Maynabd:
Q. As far as your exi)erience In elections go in that township, your board and
yonrself had been getting the matter straightened out about where you should
mark the ballots at the last April election, didn't you ?
Mr. Adams. Objected to as Irrelevant and immaterial.
Q. I mean putting the initials of the inspectors on the backs of the ballots?
Mr. Adams. The same objection.
A. That was last election we got it straightened out.
182 CAKNEY VS. SMITH.
Q. Before the board of election? — ^A. Yes, sir.
Q. Then yon got it straightened out and they were all initialed below the
perforated comer? — ^A. Yes, sir.
Q. Before that they were initialed above the perforated comer? — ^A. Yes, lir.
• Redirect examination by Mr. Adams :
Q. There was no chance for anyone to see what had been done as far as
initialing those ballots were concerned while those ballots were in the ballot
box on April 7, 1913, without opening that ballot box, was there? — ^A. No.
Mr. Maynabd. Objected to as leading.
Recross-examination by Mr. Matnabd :
Q. Was there anything done by your board after the Noyember election trying
to secrete the manner in which you initialed the ballots at that election? — A.
No, sir.
Q. Was there any question in your mind but what you had conducted that
election strictly according to law?
Mr. Adams. Objected to as incompet«[it and immaterial.
A. No, sir.
Redirect examination by Mr. Adams.
Q. Did Mr. Carney come to see you about this matter, Mr. Bateman? — ^A. He
was to the store there one day.
Q. How long ago? — ^A. I presume a couple of weeks or three weelus; I don't
just remember exactly now.
Q. That was the first time he was there to see you about it? — A. Yes, sir.
Q. Then you members of the election board liad not commented upon what
had occurred there on election day as far as initialing those ballots above that
perforated comer was concerned? — A. No, sir.
Q. You kept it quiet? — ^A. We didn't say anything about it
Q. You kept it quiet, didn't you? — ^A. We didn't keep quiet
Q. There had been no talk about it? — ^A. No, sir.
Q. That was the 18th of April that Mr. Carney came to see you aboat It^-*
A. Not a great while ago I know.
Q. Last week? — A. I don't remember just when it was.
Q. It was last week, was it? — ^A. Not a great while ago; I couldn't say
whether one week or two.
Recross-exam {nation by Mr. Maynard.
Q. You have been asked if you did not keep that quiet or whether you were
not advertising it; have you had a thought that there was something wrong
about it ; do you know of anything In your own mind that would cause such a
remark to be made to you? — A. No, sir.
Q. Was it talked one way or the other; anything said about that, about your
having marked the ballots wrong, until after this contest began? — ^A. No, sir.
Redirect examination by Mr. Adams.
Q. That was after we commenced taking testimony here you first talked about
it? — A. I think it must have been; that was some little statement in the paper,
that was all.
Q. Then you talked al)Out the matter among the members of the board? — A. I
don't know that I talked with the board about it at all.
Q. I mean the members of the elect iton board? — A. We might when the voting
was going on.
Q. That is the only place you did talk about it? — ^A. Yes, sir.
R. G. VAXDERBEOK, recalle<i. testified further on behalf of the contestant,
as follows:
Examined by Mr. Adams.
Q. Do you remember the day or what time Mr. Sowers came over to see you —
an attorney here in Charlotte — came first to see you about this matter we have
been talking about? — A. On I»>iday.
Q. What week? — A. I know it was Friday because my wife was not home.
Q. You think it was Friday of last week? — A. I couldn't tell; It was not last
week. It was on Friday that Mr. Sowers came there; my wife was not at
home Friday and she was Saturday. It must have been a week ago last
Friday.
CABNEY VS. SMITH. 188
Q. Did he come to see yon about what you knew about those ballots haying
been perforated in the manner you have testified about? — A. He did not state it
that way.
Mr. M.\YiVA]a>. I move to stril^e out the testimony already given as hearsay.
Q. Did anyone come to see you with reference to the matter — the manner is
which the ballots had been initialed at that November 5, 1912, election in the
township of Windsor?— A. A week ago last Friday.
Q. He came to see you? — ^A. Now, a man came down there; he did not give
me his name, but when I was down to Dimondale a night or two after that
they told me his name was Sowers.
Q. That was the first that anybody had come to see you about it?— A. ^ea, sir.
Q. That was a week ago last Friday?— A. Yes, sir.
Q. You did not see Mr. Carney that day? — ^A. No, sir.
RAY BURNETT, recalled, testified further on behalf of the contestant as
follows :
Examined by Mr. Adams :
Q. Do you know Claude S. Carney, the contestant in this matter? — A. Yes.
sir.
Q. Did you see him at Dimondale, in Windsor Township, a short time ago? —
A. Yes, sir.
Q. About how long ago did you see him last over there? — ^A. I think it was
two weeks or a we^; somewhere around there; I couldn't state the date
exactly.
Q. Do you know who was with him at the time, if anybody? — ^A. Mr. Sowers,
I think.
Q. A short man? — ^A. Yes, sir.
Q. Did you have any talk with Mr. Carney then with reference to the manner
in which the ballots had been initialed on election day, November 5, 1912, in
the township of Windsor? — ^A. Together with Mr. Carney and the other man.
Q. In Mr. Carney's presence? — ^A. Yes, sir.
Q. Was that the first talk you had with Mr. Carney or Mr. Sowers or any-
body in Mr. Carney's presence in reference to that matter? — ^A. Yes, sir.
Apbtl 30, 1918.
HABRIET MARSH, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestant as follows :
Direct examination by Mr. Adams :
Q. Miss Marsh, you live in the city of Kalamazoo? — A. Yes, sir.
Q. And have lived here, I suppose, some time? — ^A. Five or six years.
Q- Are you engaged in any work? — ^A. Yes, sir.
Q. Have you been connected with the Normal School? — A. No, sir.
Q. Are you a member of the board of education of Kalamazoo? — A. Yes, sir.
Q. How long have you been a member of that board — elected as a member of
that school board? — A. I was elected a member of that board.
Q. Were you in attendance at the voting place of the seventh precinct of the
third ward of the city of Kalamazoo at the general election held in this city
on the 5th day of November, 1912? — ^A. Yes, sir.
Q. You were there at the election place for what purpose that day? — A. I was
there, I presume, to sort of remind people that the question of woman suffrage
was up.
Q. You were interested in the suffrage movement? — A. Yes, sir.
Q. At that election the question of woman suffrage was being voted on? —
A. Yes. sir.
Q. There was a ballot there, was there not, at that voting place for people
to use in voting upon woman suffrage if they desired to do so? — A. Yes, sir;
it was thought if a woman was there it might remind them of it; that was the
idea.
Q. What time did you get there? — A. A few minutes before 7 o'clock.
Q. How long did you stay there? — ^A. I think it was between 12.15 and 12.30.
Q. Then did some other lady come to take your place? — ^A. Yes, sir; I
waited until Mrs. Oldfleld cama
184 CARNEY VS. SMITH.
Q. Where did you sit when you were there, or stand? — ^A. I didn't stand; I
was sitting part of the time by the window to the left-hand side of the booths
and afterwards I was sitting almost by the door.
Q. Were you within or without the railing? — A. It was a sort of a door, sort
of a half door at which the people stood when they received their ballots.
Q. You were somewhere near where the inspectors of the election board
were; how close? — A. There was a half door at which the people stood when
they received their ballots and I sat between that and the window. I was
about as far from them as I am from that small table; nearly as far off as
that table; there was a long table at which the ballots were; that was the
nearest one.
Q. Do you know Mr. Ben O. Bush? — A. Was he one that had matters in
charge?
Q. He was on the board. — A. I suppose I do.
Q. Do you know Mr. Chase, quite a large man? — A. He was the one that put
the ballots into the receptacle. I suppose that was Mr. Chase; I didn't know
him at the time.
Q. What did you do, if anything, with any of the ballots at any time while
you were there that day? — A. I never touched them.
Q. You didn't touch a ballot?— A. No, sir.
Q. Didn't handle them at all? — A. No, sir.
Q. Or have anything to do with them or handle them? — A. No, sir.
Q. Was there another lady there during the afternoon? — A. No, sir.
Cross-examination by Mr. Maynard:
Q. Did you see the election booths? — A. Yes, sir ; I saw them.
Q. Did you see the people going into the booths and marking their ballots? —
A. I didn't see them mark their ballots; I saw them g'o In.
Q. Take the ballots and go in? — A. I saw them take their ballots and go In;
then, presumably, handed them to Mr. Chase.
Q. He was the man who deix>sited them in the ballot box? — A. Yes, sir.
Q. Were you In the same room where the booths were? — ^A. No, sir; there
was a small hall on the other side. They went into the booths from that.
Q. From the hallway? — A. Yes, sir.
Q. You were where the ballots were handed through this half door? — A. Yes,
sir; the ballots were on the table.
Q. This table was not in the room where the booths were? — A. Not the table
I was to ; I didn't go into the booths at all ; I don't know whether there was a
table there or not; but not the table I was at.
Q. The table you refer to was not In the room where the booths were, do yoo
mean? — A. Do I understand you to speak of both places, the small room In
which the men entered to mark their ballots?
Q. Yes. — A. No, sir ; it was not in there.
Q. It was in between? — A. You couldn't see from the booths at all. There
was a half a doorway and a hall leading to the front door; then at the left of
that were the booths.
Q. There was no railing, then, at all? — A. No, sir. There was a sort of a
half door between the hall and the room In which I sat.
Q. But no railing, however, surrounding those booths? — ^A. The booths were
Inside of the place, understand.
Q. Do you know whether there was a railing there that day at all? — ^A. No,
sir; I don't recollect of any.
Q. There was a table there with the ballots spread out on? — A. Yes. sir.
Q. When the voter came to vote some one picked one of the ballots and
handed It through the half door? — A. Yes, sir.
Q. Did you see any amendments there? — A. Yes, sir; on the table.
Q. You were there to remind people of the fact that woman suffrage was to
be voted on;* that was your object? — A. Yes, sir; to stay there simply for that.
Q. When they were handed those ballots they were not within the railing —
the voters were not? — A. The voters were on the outside of the door.
Q. In the room out there? — A. Yes, sir.
Q. There was a door there? — A. Outside of the outer side of the front door.
Q. They got their ballots where? — A. Over this partition.
Q. The half door?— A. Yes, sir.
Q. Did you see them go through? — A. I saw them in the booths; of course
the door was shut.
OABNEY VS. SMITH. 185
Q. Then you could see the booths? — A. Yes, sir.
Q. Prom where you were? — ^A. Yes, sir; I saw them go in the door; I couldn't
see inside. I sat here In front of this little screen doorway.
Q. And not to the door where they got the ballots? — A. Yes; I was In the
hall like, two or three doors from where the ballots were. I could see the
booths If I would lean over like. I could see all of them.
Q. One of the booths was near to the west end? — ^A. Yes, sir.
Q. You were not in the room with them? — ^A. No, sir.
Q. Was there a partition between you and the room where the booths were? —
A. A little half doorway.
Q. That was between you? — ^A. Yes, sir.
Q. When you came in the doorway there was a little narrow hall as you en-
tered the doorway. From this doorway to the left-hand side you walked along
to the end of the hall; then you opened this screen partition and you were
then in the room where the ballots were — where they came out — you were in
there?— A. Yes, sir.
Q. Was there anyone else in there besides the man who delivered the bal-
lots?— A. I don't know their names.
Q. They were in there? — ^A. Yes, sir; four or five.
Q. All the forenoon? — A. Yes, sir.
Q. And in addition to those four or five, did you see a man that was receiving
ballots and depositing them in the ballot box? — ^A. Yes, sir.
Q. The man you called Chase? — A. Yes, sir; he was standing by the window.
Q. Were there any clerks that was keeping tally of the votes and keeping
coant of them? — A. Why, there were two or three that sat there keeping the
coant
Q. Where Chase was? — A. Just the other side of Chase; their names were
called.
Q. When they passed the ballots to the voters was there any declaration made
of the name of the voter? — ^A. Yes, sir; the voter's name was called.
Q. By whom? — ^A. I can't answer that question; I think Mr. Rush.
Q. The one called Ben O. Bush? — ^A. Yes, sir.
Q. He called the number, did he? — A. Just called the name. I can't say;
several sat there. I couldn't say which called the numbers and which called
the names. I know the voice calling the names corresponded to the number,
and then somebody looked on the book and they repeated that. For instance,
there was a difference in residence in one case.
Q. As you understood, you were simply there for the sole object of reminding
people to vote for woman suffrage? — A. Yes, sir.
Q. And that is all?— A. Yes, sir.
Redirect examination by Mr. Adams ;
Q. You didn't say anything to any voter about voting? — A. No, sir; certainly;
iiothing.
Q> What if anything, did you say to any voter during any time you were
there that day? — A. I didn't say anything to any voter.
Q. You were simply there so they might see that a woman was there? — ^A. Yes,
sir.
Q. That was the object of your being there? — ^A- Yes, sir.
Q. Did you participate at all in the work of the board there — the inspection
board— that day? — A. No, sir; I did not. I went away shortly after noon and
illdn't return.
Q. You were simply there to look on? — ^A. Yes, sir.
WM. W. ALLEN, recalled, testified in behalf of the contestant as follows:
Examined by Mr. Adams:
Q. Mr. Allen, you testified in this case on a former day? — A. Yes, sir.
Q. On behalf of the contestee?— A. Yes, sir.
Q. John M. C. Smith?— A. Yes, sir.
Q. I believe that you testified that you were one of the board of Inspectors at
the election held In the township of Texas, county of Kalamazoo, at the Novem-
ber 5, 1912, election?— A. Yes, sir.
Q. At which Congressmen were voted for? — A. Yes, sir.
Q. Were you or not at the time that you entered upon your duties as an in-
spector of that election holding any ofllclal position In the township of Texas ?-*
A. 1 was Justice of the peace.
186 CABNEY VS. SMITH.
Q. How long had you been Justice of the peace? — ^A. Well, I was on my fourth
year at this time.
Q. Now, did you or did you not administer an oath to any of the officers of
that election there that day before you began work on that board?— A. I think
I did to part of them.
Q. In your official capacity, did you administer that oath?
Mr. Maynabd. Objected to as incompetent and immaterial.
A. I was Justice of the peace.
Q. Did you administer oaths to those there that day as Justice of the peace?—
A. Tes, sir.
Q. Now, do you know Charles Ray? — ^A. Yes, sir.
Q. Was he holding nny official position in the township of Texas at that
time? — A. He was Justice of the peace.
Q. I show you the poll book. Exhibit 83. This is the poll book or one of the
poll books that your board used November 5, 1912. there in conducting that elec-
tion, isn't it? — A. Well, I couldn't swear to that as being the identical one with-
out looking at it.
Q. Look at it and satisfy yourself. — ^A. I find my name is there in this book —
I can swear to that — in two places, three places in my handwriting, four or five
places; that is all.
Q. That was the poll book you used and made out there that day? — A. Yes,
sir.
Q. Now, you will notice that you administered the oath to William J. Camp-
bell?—A. Yes, sir.
Q. And to Charles Ray as inspectors? — ^A. Yes, sir.
Q. And to Frank Harrison as clerk? — ^A. Yes, sir.
Q. And to Leon Burdick as clerk? — ^A. Yes, rir.
Q. And to Mr. Francis as gatekeeper? — ^A. Yea, sir.
Q. And to Mr. Jeffreys as gatekeeper, didn't you? It so appears by that
Exhibit 83. — ^A. I think I did, to all of them; that is my reooUectioiL
Q. Except yourself? — A. Mr. Burdick and myself. I think the oath was ad-
ministered to us by Mr. Ray, if I remember right.
Q. It appears here the oath was administered ; that Burdick was sworn before
Charles Ray. — A. Yes, sir.
Q. Charles Ray at the time of that election was holding the office of Justice
of the peace, you say? — ^A. Yes, sir.
Mr. Maynabd. Objected to as incompetent and immaterial and not the best
evidence.
Q. Do you know of your own knowledge that Charles Ray had been acting as
Justice of the peace in the township of Texas up to the 5th day of November,
1912? — A. Yes. sir; and had been for some time.
Q. These oaths that you administered to these various inspectors, clerks, and
gatekeepers on that particular election board, you administered as what
officer?— A. As justice of the peace.
Cross-examination by Mr. Maynabo:
Q. What was your official character when you administered those oaths?—
A. I was a Justice of the peace.
Q. You signed your name to them? — A. Yes, sir.
Q. This is signed by W. J. Campbell?— A. Yes, sir.
Q You didn't put down any official character to your name? — ^A. Yes, sir.
Q. They are blank oaths signed by men who took the oaths, and you signed
your name without any official character appended to them? — A. Yes, sir; Just
at it appears there.
ALBERT T. TP:N BUSSCHEN, being sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestant, as follows:
Direct examination by Mr. Adams:
Q. Mr. Ten Busschen, you reside In the city of Kalamazoo? — ^A. Yes, sir.
Q. Do you hold any official position here? — ^A. Alderman.
Q. How long have you been alderman this last time? — A. A little over a year;
I was elected this last spring.
Q. You were alderman of the city of Kalamazoo on the 5th day of November,
1912?— A. Yes, sir.
Q. And acted in what capacity ?-^A. In that capacity.
CAKN£Y VS. SMITH. 187
Q. Did you act on the election board of the general election held in the city
of Kalamazoo on the 5th day of November, 1912, in the tenth precinct of the
fourth ward of the city of Kalamazoo? — ^A. Yes, sir.
Q. Was that book made by your election board? — A. It was.
Q. I notice your name there subscribed to the first oath as inspector, taken
before the city clerk. — ^A. Yes, sir.
Q. Clarence L. Miller?— A. Yes, sir.
Q. Is tliat your signature, Albert T. Ten Busschen? — ^A. Yee, sir.
Q. Now, then« notice your signature there to the certificate of Frank B. God-
frey as inspector, A. P. Stiles as inspector, and Paul Jersey as inspector. —
A. Yes, sir.
Q. And Edward De Swartz. — ^A. Yes, sir.
Q. Ab clerk of election? — ^A. Yee, sir.
Q. And R. R. Creeling as clerk of election? — A. Yes, sir.
Q. And W. F. Groonick as clerk of election ? — ^A. Yes, sir.
Q. And Mr. Leggo as clerk of, or gatekeeper of, election? — ^A. Yes, sir.
Q. And John Nyland as gatekeeper. Is that true as shown by that exhibit? —
A. Yem, sir.
Q. I notice that under the oath in each one of those names appears your name»
Albert Ten Busschen, as having administered the oath to those several gentle-
men. Is that correct? — ^A. Yes, sir.
Q. Now I notice that there Is no official designation to your signature under
those oaths. In what capacity did you act In administering those oaths there
that day to those several members of the election tribunal ?
Mr. Maynabd. Objected to as incompetent and immaterial.
A. As chairman of the board.
Q. Of Inspectors? — A. Yes, sir.
Q. Were you chairman of the board of Inspectors when you administered
those oaths? — A. I was.
Q. When did you administer the oaths to those men and each of them? —
A. In the morning Just before we opened the polls.
Q. Before you opened the polls? — ^A. Yes, sir.
Q. When had you been sworn In as Inspector before the city clerk? — A. It
was one evening before that time, I am not positive what evening it was.
Q. Had you been sworn In as an Inspector by the city clerk, of the city of
Kalamazoo, prior to the 5th day of November, 1912? — A. I had.
Q. You were sworn In as inspector to act at that particular election as such
inspector? — A. Yes, sir.
Cross-examination by Mr. Maynabd:
Q. The tenth precinct is in what ward? — A. The fourth ward.
Q. Is there more than one precinct in that ward? — A. Yes, sir.
Q. Two precincts? — ^A."Yes, sir.
Q. How many aldermen are there in that ward? — ^A. Two aldermen.
Q. There were not aldermen enough to go around the precinct? — A. No, sir.
Q. How did you get to be chairman of that board that day? — A. Well, being
alderman the city charter made me chairman of the board of election. If it
were not for tiie fact
Q. You were not elected as chairman of that board, were you at all? — A. I
was not; no, sir.
Q. You simply went there as chairman as alderman of that ward and took
upon yourself the duties of chairman of the board? — A. Well, virtually; y.es, sir.
Q. Then you administered the oaths after you assumed that oluiracter and
swore them In as chairman of the board? — A. Yea, sir.
Q. In fact, and In truth, at that time you did hold that position, did you? —
A. I think I did.
Q. What is that? — A. I think I said that the charter of the city of Kala-
mazoo makes me, as alderman of the board, chairman of the election.
Q. One of your precincts had to go without a chairman; didn't It? — A. They
elected a chairman.
Q. Have you looked It up? — A. To be frank I have not, I simply understand
it to be that way and it has been that way.
Q. I supi)oae there may be a provision for the election of a chairman? — ^A.
Well, yes, most boards elect their chairman.
Q. How was that election board in your precinct forh*ed?
Mr. ADAM8. What election board?
188 OABNEY VS. SMITH.
Q. How was it organized In that precinct for this election of November 5?—
A. In what w^ay do you mean?
Q. How did you get your inspectors of election? — ^A. Why, the council ap-
iwints.
Q. Is that a charter provision? — A. I think so.
Q. Or do the aldermen apiwint? — A. The council has the appointment of
them.
Q. That is a charter provision? — A. I thinic so.
Q. I am getting at the way it was organized at that particular election.— A.
You mean as to the election inspectors?
Q. Yes, sir. — A. They are appointed by the council and after the appointments
are made
Q. How do they obtain the names? — ^A. Why, the way we usually get our
boards
Q. I am not asking you usually, but this November 5, 1912, election? — ^A. The
way they are obtained was by the alderman, the senior alderman, of the dif-
ferent wards reading off the names of the inspectors of election of the different
precincts and then the council confirms the appointments so made; they are
\lrtually appointed by the senior alderman.
Q. Was that done In this case? — ^A. That Is done In every case that I
know of.
Q. Was that done in this particular case? — A. As far as I can remember.
Q. Who was the senior alderman? — ^A. E. B. Labadle.
Q. Did he read off the list of names to the council of the inspectors of that
election? — A. Yes, sir.
Q. Did he read off the list of the nnmes of the clerks? — A. Yes, sir.
Q. Were they all voted upon by the council and appointed that way? — A. They
were; yes, sir.
Q. That is the way they received their appointments for the organization of
that particular board at that election? — A. Yes, sir.
Q. This poll book, Exhibit 84, was a blank book that was used by your board
of election iusi)ector8 in the tenth precinct of the fourth ward of the city of
Kalamazoo, county of Kalamazoo, at the November 5, 1912, election?— A.
Yes, sir.
Q. Those blank onths are the oaths that are in the book? — ^A. Yes, sir.
Q. And the oaths they took were those you administered there and signed
your name to without any official designation under your name? — ^A. Yes, sir.
Q. The oaths hero are the oaths you gave to the gateke?pers? — ^A. Yes, sir.
Q. Read the first oath there. — A. (Reading.) "State of Michigan, county of
Kalamazoo, ss. I do solemnly swear that I will supiwrt the CJonstitution of the
United States and the constitution of this State and that I will faithfully dis-
charge the duties of tlie office of Inspector of this election held on Tuesday, the
5th day of Novemt)er, A. D. 1012, according to the best of my ability. So help
me God. Albert Ten Busschen."
Q. What is the rest of itV — A. " SubscMibed and sworn to before me this 5th
day of November, A. D, 1912. Clarence L. Miller, city clerk." When I told you
that I was sworn in the evening before I must have been mistaken; it was on
the 5th day of November I was sworn in. Oftentimes they are sworn in the
night before.
Q. I see that this is the first oath that is in the exhibit?— A. Yes, sir.
Q. Did you read your signature to that oath? — A. No, sir; I will read it now;
Albert Ten Busschen.
C. H. LITTLE, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestant, as follows:
Direct examination by Mr. Adams:
Q. You are the same Little who testified formerly here In this contest?— A.
Yes, sir.
Q. I show you Exhibit 85. Were you holding any official position in Kala-
mazoo November 5. 1012? — A. Yes, sir; I think I was on the board of light and
water commission at that time.
Q. I show you Exhibit 85. Examine that and tell me what it is. — A It is
the poll book of the general election held on Tuesday, the 5th day of November,
1912, in the fourth precinct of the second ward of the city of Kalamazoo.
Q Did you act on that election board in that fourth precinct in the city of
Kalamazoo at that general election held November 5, 1912? — A. Yes, sir.
GABNEY VS. SMITH. 189
Q. I notice under the oath of inspector of election, the first oath there is in
the book, it seems to be signed by C. H. Little. Is that your signature? — ^A. Yes,
sir.
Q. Read that certificate?— A. (Reading.) "State of Michigan, county of
Kalamazoo, ss. I do solemnly swear that I will support the Ck)nstitutlon of
the United States and the constitution of this State and that I will faithfully
discharge the duties of the office of inspector of election held on Tuesday, the 5th
day of November, A. D. 1912, according to the best of my ability. So help
me God. C. H. Little. Subscribed and sworn to before me this 5th day of
November, A. D. 1912. Clarence L. Miller, city clerk."
Q. Did you take that oath before the city clerk, Clarence L. Miller? — ^A.
Yes, sir.
Q. I notice that the other oaths, that to Thomas Carroll, Mr. McQuigg, and
Frank D. Stevens, John E. Crose as clerks of election, Charles M. Bennett as
clerk of election, and William J. Robins, as clerk of election, and Joseph
Palmer as gatekeeper and 6. D. Griffing as gatekeepers of election, as shown
by this — those were there and you admlnlBtered the oath? — A. Yes. sir.
Q. Your name appears on that exhibit there as having administered the
oaths to esich one of those other officers whose names I have Just read? — ^A.
Yes, sir.
Q. There appears no official designation to your signature, in connection
with those oaths; In what official capacity> if any, did you administer the
oaths to these several inspectors of election and gatekeepers of the election
board there that day?
Mr. Maynasd. Objected to as incompetent and Immaterial and not the best
evidence.
A. I administered them as chairman of the board.
Q. You were an inspector? — ^A. Yes, sir.
Q. You acted as chairman of that board there that day, did you? — A. Yes. sir.
Q. Had you taken the oath before the city clerk, Clarence L. Miller, before
you administered any one of those oaths to those other men who acted there
in those several capacities on that election board there that day? — A. Yes, sir.
Cross-examination by Mr. Maynabb :
Q. The oath you have read, being the first oath that appears on that book,
is Just as you took it, isn't it? — ^A. Yes, sir.
Q. And the only oath you did take? — ^A. Yes. sir.
Q. You say you administered these other oaths ns chairman of the board? — A.
I was chairman ; yes, sir,
Q. How did you become to be chairman? — A. Because I was elected chairman
by the gentlemen there.
Q. That is, when you came in? — A. Yes, sir.
Q. And before you commenced to vote? — A. Yes, sir.
Q. Clarence L, Miller went around in the morning and adminiptered the oaths
at the different precincts? — ^A. Well, I went to the city hall early in the
morning.
Q. You got yours early in the morning? — A. He came with some supplies; I
think it was then.
Q. The ollicial capacity you claimed to be acting In, that is, chairman of the
board, when you administered those oaths? — A. After I was appointed chair-
man; yes, sir.
Q. They had organized, had they, before the oaths were administered to
these various men? — A. They were there with the appointments from the city
council, and came as gatekeepers, insi'ectors, etc.
Q. And the oath was administered to you that morning at the city hall, you
say?— A. Yes, sir.
Q. Then from there you went to the precinct? — ^A. Yes, sir.
Q. Did you have the election supplies? — A. Yes, sir.
Q. Where did you get them? — ^A. I think they were delivered there and I
got them.
Q. Do you know who brought them there? — ^A. I do not; no, sir.
Q. Or to whom they were delivered there? — A. No, sir.
Q. You don't know where they got them from? — A. I know they were there
with the seals intact.
Q. When you got there at the voting precinct? — A. Yes, sir
Q. They had not been opened up? — ^A. No, sir.
190 CARNEY VS. SMITH.
Q. You testified that they elected you chairman when you were there?— A.
As I remember, they did ; yes, sir.
Q. The balance of those oaths were made out after you organized and went
to voting, were they?— A. As I remember, the first thing we did was to organ-
ize; I had the list furnished me from the city clerk of the gatekeepers and
clerks who were to serve on that election board; I think they were all sworn
In at the same time.
Q. The onths were not all made out then, were they? The balance of the
oaths aside from your own, that was made out by the city clerk, was it not? —
A. Yes, sir.
Q. Do you know who made out the balance of the oaths? — A. I do not;
no, sir. I think some one of the clerks.
Q. One of your clerks? — A. Yes, sir.
Q. After they were made out they were signed? — ^A. Yes, sir.
Q. Did they make them out while the voting was going on? — ^A. I think so;
yes, sir.
Q. As soon as you got through you opened up the voting and commenced
making out thope books, and they were made out during the day as far as they
could make them? — ^A. Yes, sir; the iwll book, the names were written In there
during the day.
Q. Then, these names of the voters were written in as they progressed? — A.
Yes, sir; and these clerks were all sworn, and inspectors, before the polls were
opened.
Q. You gave them the oaths that are written here? — A. Yes, sir.
Q. That is the form you gave? — A. Yes, sir; and later they were signed there.
Q. Did you give these oaths to the two last ones, to the gatekeepers that
appear there in this Exhibit 85? — A. Yes, sir.
Q. Read the first one and the one next to the last one. — ^A. (Reading.)
** State of Michigan, County of Kalamazoo, ss. I do solemnly swear or aflirm
that I will supiwrt the Constitution of the United States and the constitution
of this State and that I will faithfully discharge the duties of the ofilce of
gatekeeper of this election held on Tuesday, the 5th day of November, A. D.
1912, according to the best of my ability. So help me God. Signeil Joseph
Palmer. Subscribed and sworn to before me this 5th day of November, A. D.
1912. Signed C. 11. Little."
Q. The name to the Jurat, is that your name? — ^A. Yes, sir.
Q. There is no official designation to it? — A. No. sir.
Q. Of course this oath was administered to the gatekeepers In the same
form? — A, Y'es, sir.
Q. Signed by whom?— A. C. 11. Little— signed by L. D. Griffing.
Q. The Jurat is signed by whom?— A. C. H. Little.
Q. No official designation to that? — A. No, sir.
Q. Is that all the oath and the only oath you administered to either one of
those gatekeepers? — A. Yes, sir.
Q. Who were the other inspectors of election besides yourself? — A. Thomas
M. Carroll, Mr. McQuigg, and Frank D. Stevens.
Q. There were four inspectors in all? — ^A. Yes, sir.
Q. Did you as inspectors give receipts for the election supplies?
Mr. Adams. Objected to as immaterial.
A. I couldn't say whether we did or not.
Q. You didn't sign any receipt, did you, for the supplies? — A. Not that I
remember of.
ALVORD PECK, heUig sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestant as follows:
Direct examination by Mr. Adams:
Q. Mr. Peck, did you act on the election board in the township of Alamo-
did yon hnve »iny thing to do with helping conduct the election that was held
in the Township of Alamo. Kalamazoo County, Michigan, on November 5,
1912? — A. I passed the ballots to the men.
Q. Did you hold any official position in the township of Alamo at that
time? — A. Yes, sir; Justice of the peace.
Q. How long had you been Justice of the peace? — A. At that time about two
years.
Q. Were you acting as Justice of the peace on November 5, 1912? — A. Yes, sir;
I was.
CABNEY VS. SMITH. 191
Q. Did you hnve any other justice of the peace in that township at that
time?— A. Yes, sir.
Q. Who? — ^A. Rubert J. Fershon. I can't think of the other man's name.
Q. I notice that you administered the oath by Exhibit 74, that yon admln-
Irtered the oath to Rubert J. Fersohon and Edward W. Upton. — A. Yes, sir.
Q. F. H. Carpenter and Leslie Hntchins as inspectors of election that day,
did you? — A. Yes, sir.
Q. And Henry Norton clerk of election there that day? — A. Yes, sir.
Q. Xow, I notice that you did not sign to your signature there where you
administered those oaths, in what capacity you administered them — in what
cnpacity did you administer them to those gentlemen there that day?
Mr. Maynabu. Objected to as Incompetent and immaterial.
(No answer.)
Q. Yon say that Rubert J. Ferson was at that time a Justice of the peace in
that township? — A. Yes, sir.
Q. He served on that election board with you? — A. Yes, sir.
Cross-eYamination by Mr. Maynabd :
Q. Mr. Little, do you claim that you were a member of the board of election
Inspectors at that election held in Alamo, county of Kalamazoo, on the 5th day
of November, 1912?— A. Yes, sir.
Q. Edward W. Upton acted as a member of the board? — ^A. Yes, sir.
Q. All day?— A. Yes, sir.
Q. Did you act all day? — ^A. Yes, sir; and nearly all night.
Q. What time did you get through? — A. I don't remember; I think about
1 o'clock.
Q. The next day, anyway? — ^A. Yes, sir.
Q. Now, did Mr. Carpenter act as inspector of election that day? — A. Yes, sir;
I suppose so.
Q. That is his name down there? Can you tell whether he acted or not? —
A. Yes. sir; he acted.
Q. That made three? — ^A. Yes, sir.
Q. Mr. Leslie Hutchins? — A. He was clerk.
Q. Did he take the oath of in8i)ector of election that day? — ^A. He took the
oath as clerk ; they were all taken at the same time.
Q. They were all taken as inspectors? — ^A. Yes, sir.
Q. Mr. Norton, what was he? — A. As clerk.
Q. He took the oath as clerk of the election? — A. Yes, sir.
Q. On the last page after the blank oaths there appear to be two oaths, the
forms of those oaths I wish you would read; the first one that is on that page. —
A. (Reading.) *' State of Michigan, county of Kalamazoo, ss. I do solemnly
swear or afflnn that I will support the Constitution of the United States and the
constitution of this State, and that I will faithfully discharge the duties of the
office of gatekeeper of election held on Tuesday, the 5th day of November.
A D. 1912. Signed, C. R. Campbell."
Q. Who signed the Jurat?— A. A. Peck.
Q. Any official designation there? — A. No, sir; there doesn't seem to be.
Q. Is that the only oath you administered to Mr. Campbell that day? — A. I
believe It waa
Q. The next oath followlu?; was what? — A. {Reaclinfr:) *' State of MiHiignp,
eonnty of Kalamazoo, ss. I do solemnly swear or afflnn that I will supF)ort the
Constitution of the United States and the constitution of this State and that
I will faitlifnlly discharge the «3uties of the offlo^ of g:Uokt'ei)er of election held
on Tuesday the fifth day of November A. D. 1912. A. Peck."
Q. That Is your signature? — A. Yes, sir.
Q. Who did you swear to that before, who administered the oath to you? —
A. Robert J. Fershon.
Q. Did you net as gatekeeper or inspector of deration?— A. Insjiector I was.
Q. There you signed as gatekeei)er? — A. I seeme<l to have: yes, sir.
Q. If you performed the duties of both you did pretty well? — A. Yes, sir; I
didn't do both.
Redirect examination by Mr. .\dams:
Q. You acted as inspector? — A. Yes, sir.
Q. Who was gatekeeper there thnt day? — A. George Campbell, and I can't tell
who the other one was ; it is a good while ago.
Q. You don't remember then? — A. No, sir.
192 CARNEY VS. SMITH>
Q. You didn^t sigii as inspector there that day, Mr. Peck — ^A- Maybe I was
gatekeeper.
Q. I will call your attention to this sarce Exhibit 74 to the final certificate;
one that is signed, is it not, by Edward W. Upham and Mr. Fershon, Mr. Carpen-
ter, Mr. Hutchins. board of election inspectors, held at Alamo on Tuesday, the
fifth day of November, A. D. 1912?— A. Yes, sir.
Q That is the way it reads on the books?— A. Yes, sir.
Q. So you didn't sign as Inspector? — ^A. I don't think I did now; I supposed
I did.
Q. The jurat to the oath is as gatekeeper? — ^A. All right, then.
Q. Does that refresh j-our recollection whether you acted as gatekeeper?—
A. I don't remember.
Q. Now, as a matter of fact, you did not act handing out the ballots that day,
you attended the gate, dldn' you? — ^A. I guess so.
Q. That is your recollection now that you did not hand out the ballots at that
particular election?
Mr. Maynabd. Objected to as leading; in the first place, he Siiid he handed
out every ballot voted there that day.
Q. Have you acted on other election boards before this time? — ^A. Yes; for
the last 12 or 15 years.
Q. Your best recollection is now at this November 5, 1912, election you acted
as what? — A. As gatekeeper.
Q. As gatekeei^er you didn't pass out any ballots at all there? — A. No, sir;
not at all.
WALTER J. YATES, being sworn to testify to the truth, the whole ti-uth, and
nothing but tlie truth, testified on behalf of the contestant, as follows :
Direct examination by Mr. Adams :
Q. Mr. Yates, where do you live? — ^A. At Vlcksburg.
Q. Is Vlcksburg in the township of Brady, Kalamazoo County? — ^A. Part of it
Q. How many voting precincts do you have in the town of Brady, or did you
on November 5, 1912, when the general election was held? — ^A. We had two.
Q. Did you hold any official position in the township of Brady November 5,
1912: — A. I did; I was treasurer of the township.
Q. Do you know W. H. Beebe? — ^A. Yes, sir.
Q. Did he hold any official position In that township? — ^A. Yes, sir; he did
then; he was justice of the jieace.
Q. Did you know A. W. Parker at that time?— A. Yes, sir.
Q. Did he hold any official position in the township of Brady at that time?—
A. Yes, sir ; Justice of the peace.
Q. Now, did you act on the election board of the second precinct In Brady at
the November 5, 1912, general election? — ^A Yes, sir.
Q. Ill what capacity did you act thei'e? — ^A. As chairman of the election
board.
Q. As inspector? — A. Yes. sir; as chairman and as inspector.
Q. Did you take any oath before you proceeded to perform your duties on
that election board? — A. Yes. sir.
Q. Before whom? — A. W. H. Beebe, I am pretty sure, administered the oath,
as he was the oldest justice of the peace.
Q. Can you say iwsitively that you took an oath there? — A. I certainly did.
Q You think you took it before W. H. Beebe as justice of the peace? — ^A. Yes.
sir.
Q. I notice here on Exhibit 86; will you state what that is?— A. It is the
poll book of the general election of November 5, 1912, second precinct, township
of Brady, Kalamazoo County, Michigan.
Q. Is that one of the books that was used there by your election board that
day? — A. Yes, sir.
Q. Now, on the first page, where the oaths of the different oflScers appear, I
notice that the first oath Is the oath of inspector, and it is signed by W. J.
Yates? — A. Yes, sir.
Q. Is that your signature? — A. Y'es, sir.
Q. Now, that jurat does not seem to be signed by anybody, does it? — ^A. No,
sir; it is not signed
Q. You say you did take an oath before W. H. Beebe? — A. Yes, sir.
Q. Before you proceeded to perform the duties there as inspector of that
election did you take that oath? — ^A. It was before.
OAKNEY VS. SMITH. 193
Q. The first oath that was administered to you by W. H. Beebe was the first
oath administered there that day? — ^A. Yes, sir.
Q. I notice the second oath is the oath of an inspector of election and is
signed by A. W. Parker, and the second oath is the oath of inspector and is
signed by W. H. Beebe, and the next oath signed is the oath of clerk of the
election, signed by R. R. Irwin V— A. Yes, sir.
Q. The next oath is oath of clerk, signed by George Goldsmith, on that
exhibit?— A. Yes, sir.
Q. Turn over the page, and the next oath that is signed is that of gate
keeper, signed by I^ewis Higgles? And the next oath is signed by the other
gatekeeper, George H. Huntington?— A. Yes, sir.
Q. The Jurats to all those oaths except the one you signed, or the oath that
you signed— those Jurats are signed by W. J. Yates?— A. Yes, sir.
Q. Whose signature is that?— A. That is my own.
Q. That is your signature?— A. Yes, sir.
Q. I notice under your signature to those Jurats there Is no official designa-
tion?—A. No, sir.
Q. In what capacity did you administer those oaths to those several gentle-
men there?
Mr. Matnabd : Objected to as immaterial.
A As chairman of the board.
Q. What board?— A. Board of election.
Q. Inspectors? — ^A. Yes, sir.
Q. When did you administer those oaths to those people, all of them? —
A Before the opening of the polls.
Q. Before those gentlemen had performed any duties on that board? — ^A. Yes,
sir; before any duties were performed.
Cross-examination by Mr. Maynabd:
Q. W^hat official position do you hold in the township? — A. Township
treasurer.
Q. You were township treasurer? — A. Yes, sir.
Q. Now, what was done there first that morning when your board organ-
ized?—A. What was done first?
Q. Yes. — ^A. Weil, I think the first thing was I was sworn in as inspector of
election by the Justice of the ];>eace.
Q. Was that the first thing done? — ^A. Yes, sir.
Q. Did you sign that oath yourself? — ^A. Yes, sir.
Q. Did he read this particular oath to you in this book as you signed It? —
A. Yes. sir; he read it from memory; I will not say he read it; he administered
the oath as an inspector of election.
Q. Did you take this oath or some other? — ^A. I took an oath to support the
Constitution of the United States and perform the duties required of me to
the best of my ability ; I remember that part of it ; whether word for word like
that I don't know ; I presume it was that.
Q. That oath is not signed by you at all? — ^A. That is my signature there.
Q. I mean at the conclusion of the oath. That is not at the conclusion of the
oath, is it? — A. It is one line at>ove.
Q. You didn't sign this language at all, did you, ''according to the best of
my ability, so help me God"; you never signed that? — ^A. The way it appears
there I did not.
Q. Your name Is on the line above? — ^A. Yes, sir.
Q. According to this oath no officer signed that Jurat, did they? — ^A. No, sir.
Q. No one administered any oath to the gatekeepers at that election? The
oaths you administered to the gatekeepers appear on that page of this Ex-
hibit 86?— A Yes, sir.
Q. Will you read the first oath?— A. (Reading.) "I do solemnly swear or
affirm that I will support the Constitution of the United States and the con-
stitution of this State, and that I will faithfully discharge the duties of the office
of gatekeeper at the election held on Tuesday, the 5th day of November, A. D.
1912, according to the best of my ability. So help me God. Signed Lewis
Higgles. Subscribed and sworn to before me this 5th day of November, A. D.
1012. W. J. Yates."
Q. There is no official designation to your name? — ^A. No, sir.
Q. The next oath is in the same form? — ^A. The same form, only signed by
George Huntington as gatekeeper and by myself in the same form.
288—13 ^18
194 CABNEY VS. SMITH.
Q. That is, you signed the Jurat?— A. Yes, sir.
Q. No other oath was administered to those gatekeepers that you know of
there that day except this one? — ^A. No, sir.
H. B. SWEETLAND, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified as follows on behalf of the contestant:
Direct examination by Mr. Adams:
Q. Mr. Sweetland, you live where? — A. In the township of Portage.
Q. Where did you live November 5, 1912?— A. Portage.
Q. How long have you Jived in Portage? — A. All my life.
Q. Did you hold any official iwsition in the township of Portage on the 5th
day of November, 1912?— A. Yes, sir.
Q. What? — ^A. Justice of the peace.
Q. Was Mr. F. J. Southwell a member of the board of lnsi)ectors of that
election November 5, 1912? — ^A. Yes, sir.
Q. Did he hold any official position in that township? — ^A. Yes, glr; he was
township clerk.
Q. Now, I show you Exhibit 87; will you look at that and tell me what It
Is? — A. That is the poll book of Brady Township of the November election.
Q. November 5, 1912?— A. Yes, sir.
Q. I notice your name appears there to the jurats or some of them In that
poll book, at least the signature of H. B. Sweetland. State whether that is your
signature. — ^A. Yes, sir.
Q. Where it appears? — ^A. Yes, sir.
Q. The first oath there in that Exhibit 87 is the oath of inspector signed
by Alf L. Snow?— A. Yes, sir.
Q. You signed the jurat under his oath, H. B. Sweetland, didn't you? — A,
Yes, sir.
Q. I see your signature is under the oath of N. L. Bowles? — ^A. Yes, sir.
Q. He was sworn as an inspector, is that right? — ^A. Yes, sir.
Q. Then the next certificate is the certificate of the inspector of election
signed by Mr. Southwell ?— A. Yes, sir.
Q. That next one is Uiat of insi)ector signed by W. E. Agnew? — ^A. Yes, sir.
Q. Thfe next is the certificate of Peter who? — A. Prosens.
Q. Your name is to the jurat? — ^A. Yes, sir.
Q. The next is Isaac Root? — A. Yes, sir.
Q. Your name is under the jurat that is connected with the oath of Isaac
Root? — ^A. Yea, sir.
Q. I notice where you have signed these jurats you have not designated In
that Exhibit 87 In what capacity you administered the oaths. State in what
capacity you did administer those oaths to those several gentlemen.
Mr. Maynabd. Objected to as incompetent and Immaterial.
A. As justice of the i)eace.
Q. I notice you took the oath before F. H. Southwell? — ^A. Yes, sir; F. J.
Southwell.
Q. He was what officer in that township at the time he administered that
oath to you? — ^A. He was township clerk.
N. B. WHEELER, being sworn to testify to the truth, the whole trutli, and
nothing but the truth, testified on behalf of the contestant as follows:
Direct examination by Mr. Adams :
. Q. You testified in this matter on a former occasion, didn't you? — ^A. Yes, sir.
Q. You were inspector, I believe, in the third precinct in the first ward of
the city of Kalamazoo at the November 5, 1912, general election? — A. Yes, sir.
. Q. Did you take an oath to act as inspector of that election before you acted
as such Inspector? — A. I took an oath the night before at the city hall to act as
chairman.
Q. I show you Exhibit 88 to refresh your recollection, and call your attention
to the first certificate in tiiat book?~What is that book, first?— A. It is the
poll book of the general election held on Tuesday, the 5th day of November,
1912, in the third precinct, first ward of the city of Kalamazoo, comity of
Kalamazoo, State of Michigan.
Q. Is that a book you gentlemen made up there that day, you men who con-
stituted that election board, some of you? — ^A. Yes, sir.
CARNEY VS. SMITH. 196
Q. The first certificate In there Is oath of inspector?— A. Yes, sir.
Q. Signed by whom? — A. Clarence L. Miller, city clerk.
Q. And under that?— A. N. B. Wheeler.
Q. Who Is that?— A. That is myself.
Q. That is your slismatiire? — ^A. Yes, sir.
Q. The oath, according to the jurat, is signed by whom? — ^A. Clarence L.
Miller, city clerk.
Q. The date on that Jurat is November 5, 1912?— A. Yes, sir.
Q. Does that refresh your recollection as to the date you took the oath? —
A. I took two oaths ; I took one the night before.
Q. You were sworn to act as inspector, at that election by whom? — A. By the
dty clerk, Clarence L. Miller.
Q. I notice there is a certificate there of A. R. A. Trepanning.
Q. As inspector? — A. Yes, sir.
Q. Who is the next?— A. William C. Jjewis.
Q. Mr. Hogan was an inspector? — ^A. Yes, sir.
Q. Albert W- Cooley as clerk of election? — ^A. Yes, sir.
Q. Guy H. Lockwood. as clerk of election?— A. Yes, sir; and Otis N. Connor
KB Inspector.
Q. John A. LAmb as gatekeeper? — ^A. Yes, sir.
Q. Who is next? — ^A. M. Ryan as gatekeeper.
Q. Each one of these certificates are* signed by those gentlemen, respectively,
and whose name is that appears under the Jurat under their oaths? — ^A. N. B.
Wheeler.
Q. Whose signature is that? — ^A. That is my signature.
Q. You signed that there? — A. Yes, sir.
Q. Did you administer the oaths to those gentlemen? — ^A. I did; yes, sir.
Q. In what capacity did you administer the oaths to them?
Mr. Maynabd. Objected to as incompetent and immaterial.
A. As chairman of the board.
Q. What board? — A. The board of election inspectors.
Q. Did you administer those oaths after you had taken the oath before the
city clerk? — ^A. I administered the oaths before we opened in Uie morning.
Q. Had you taken, before you administered the oaths to those gentleman, the
oath before the city clerk? — A. I took the oath the previous evening at the city
hall.
Cro8»examinatlon by Mr. Matnabd:
Q. Witness, when you got the supplies for your election precinct, when did
yon get them? — A. When we got there the election supplies were at the polls, at
the engine house.
Q. And among the supplies was this poll book and statement book and so
on?— A. Yes. sir.
Q. Were they all sealed up? — ^A. Yes, sir; they were sealed.
Q. You took and signed this oath, did you not, the night before election? —
A. No, sir.
Q. You took it that day?— A. I signed it that morning.
Q. Who made out the blank oaths for the other inspectors to sign? — ^A. One
of the clerks.
Q- Of your board? — ^A. Yes, sir.
Q. Look at those oaths, all of those oaths, and see If they are not drawn up
and made out by the city clerk and all In the same handwriting? — A. No, sir;
I don't think the city clerk filled those out.
Q. Who do you think filled them out? — ^A. I think either Mr. Tx>ckwood did
or Mr. Trepanning.
Q. They were clerks of the election board? — A. Yes, sir.
Q. You think they made them out? — ^A. Yes, sir.
Q. When they were made out, you swore the officers to them and you signed
them and they signed them? — A. Yes, sir.
Q. That Is your recollection of how It happened? — A. I swore them all at one
time before the polls were opened.
Q. You didn't sign them there? — A. No, sir.
Q. When did you take the oath? — A. When I came around in the morning
for the polls to open.
Q. After you had been to work awhile? — A, Well, I think right at the time
tbe polls opened.
196 OABNBY VS. SMITH.
Q. Did you administer the only oath that was administered to the gate-
keepers?— A. Yes, sir.
Q. That oath is the only one you administered, is it not? — ^A. I administered
all of them except the first one.
Q. Did you administer an oath to the gatekeepers and swear them to allow
no person to pass into the gate into that polling place, did you administer any
such an oath? — A- I did not; no, sir.
Q. Who did the tallying at that precinct?— A. Why, the clerks.
Q. Who were the clerks?— A. Guy H. Lockwood, Roy Trepanning, Mr. Cor-
win, and Mr. Gooley.
Q. How many clerks did you have? — ^A. We had four clerks, I think.
Q. How many inspectors did you have? — ^A. I think there were two in-
spectora
Q. Well, you would be one? — ^A. Yes, sir.
Q. Trepanning would be another? — ^A. Yes, sir; I had it in mind he was a
clerk, probably he was not.
Q. Did you administer an oath to him as inspector? — ^A. According to the
list received from the city clerk, whatever he was.
Q. The city clerk handed you a list? — ^A. The city clerk; I obtained a list
from him.
Q. When? — ^A. The night previous to election day.
Q, There was no one elected there by the bystanders for this election, was
there? — A. Not that I recoHect; no, sir.
Q. Have you served at other meetings of the board of election? — A. Yes, sir.
Q. Gviy H. Lockwood was a candidate for ottice on the ticket that day? — ^A.
Yes, sir.
Q. What olHce? — ^A. He was a candidate on the Socialist ticket, I don't know
for what, I forget.
Q. He served on the board while a candidate for office at that election?— A.
Yes, sir.
Q. Did you give a receipt for the supplies?
Mr. Adams. I object to that as irrelevant and immaterial.
A. I don*t think I did ; I am quite sure I did not.
Q. Was there a citizen there who did not belong to your board by the name
of Monroe who was a challenger? — A. Yes, sir.
Q. What party was he from? — A. The Progressives.
Q. When you counted up the ballots at night, did he help do the counting?— A.
It was stated to me, addressed to me as chairman, and I was asked if he could
help, and I told him I thought we could get along, we had so many on the
board, without his assistance. He may have heliied to straighten out the ballota
I wouldn't say.
Q. He handled them some? — ^A. He may have, yes, sir; I couldn't aay that I
remember of seeing him ; I was there all the time.
Redirect examination by Mr. Adams :
Q. Did you say Mr. Lockwood was running on the ticket? — ^A. His name was
on the Socialist Party.
Mr. Adams. I move to strike out the question rnd answer that Guy H. Lock-
wood was on the ticket that day as a candidate and the answer that the wit-
uess made thereto for the reason that it is irrelevant and immaterial and not
covered by any allegation in the answer of the contestee.
Q. I show you Exhibit 89 and ask you if you will look over that exhibit to
refresh your recollection and tell what oiflce Guy H. Lockwood was running for
on that ticket that day.
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, there
being no allegation contained in the answer of the contestee that would make
any such proof admissible if otherwise admissible of itself, and there Is no
proof that the piece of paper he hands the witness is anything whatsover any
more than an ordinary piece of paper on which there may be some writing or
printing.
A. I see he was a candidate for State senator from the sixth district on
the Socialist ticket.
FRANK FLAITZ, being duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestant as follows:
OABNBY VS. SMITH. 197
Direct exrimination by Mr. Adams :
Q. Mr. Flaitz, you live in the city of Kalamazoo? — ^A. Yes, sir.
Q. I show you a boolc marked '* Exhibit 00 " ; do you know what that Is? — A.
That is the poll book of the election in the 6th precinct on the 5th day of
November, 1912.
Q. Did you have anything to do with the carrying on of the election in the
Biith precinct of the city of Kalamazoo November 5, 1912? — ^A. Yes, sir; I
was an inspector there.
Q. State whether you took an oath to act as inspector of that election. — ^A.
I did ; I went to the city clerk, I think the day before or Saturday, I can't say
which now, but I was sworn in and signed.
Q. Before whom did you take the oath? — ^A. The city clerk.
Q. What was his name? — ^A. Clarence Miller.
Q. Clarence L. Miller? — A. Yes,, sir.
Q. Now, I notice there is C. H. Ashby and J. D. Schell and another gentle-
man by the name of W. A. Balch, each signed the oaths contained In this
exhibit as inspectors of that election, didn't they? — ^A. Yes, sir.
Q. And you signed the jurat under the oath of J. D. ScheU and W. A.
Balch?— A. Yea sir.
Q. Were they signed there? — ^A. Yes, sir.
Q. After your signature there in those jurats you do not seem to have des-
ignated in what capacity you administered the oaths. In what capacity did
you administer those oaths to those men?
Mr. Maynasd. Objected to as incompetent and immaterial.
A. As chairman of the board of inspectors, or board of election.
Q. I note there Is no signature under the jurat which is under the oath of
C. H. Ashby. Do you know who, if anybody, administered any oath to him
that day?— A. I know I administereil the oath to all except myself, in a body;
that is, the clerks and inspectors in a body and the gatekeepers by themselves.
Q. Is it your recollection that you administered the oath to C. H. Ashby
to act as Inspector of that election that day?— A. To the best of my memory,
yes, sir.
Q. I notice there is a certificate here signed by E. H. Fisher who seems to
have taken the oath us clerk and by Wlillani J. Losinger described in the oath
as clerk. Who is that, John Jaeger?— A. Yes.
Q. Subscribed to that oath as gatekeeper?— A. Yes.
Q. Who is the next fellow?— A. I know him by sight, but I can't think of his
name; I have it here now, Fleckenstein.
Q. L. Fleckenstein as gatekeeper? — ^A. Yes, sir.
Q. And O. W. Hrundage, what was his office? — ^A. He acted as inspector.
Q. Now then your name appears in the jurat? — ^A. Yes, air.
Q. As the person who administered the oaths, and there is no official desig-
nation under those jurats? — ^A. No, sir.
Q. In what official position did you administer those oaths? — A. As chair-
man of the board.
Q. Chairman of the board of inspectors? — ^A. Yes, sir.
Q. Chairman of the board of election? — ^A. Yes, sir.
Cross-examination by Mr. Mayivabd:
Q. You think that you went to the city hall the day before election?— A. I
know I did; whenever I am elected as chairman I go the day before and am
sworn in BO there would be no chance of waiting for the city clerk in the
morning.
Q. This is the sixth precinct?— A. Yes, sir.
Q. Read it— A. (Reading:) "Oath of inspector of election. State of Michi-
gan, County of Kalamazoo, ss. I do solemnly swear or affirm that I will sup-
port the Constitution of the United States and the constitution of this State and
that I will faithfully discharge the duties of the office of Inspecor of the elec-
tion held on Tuesday, the 5th day of November, A. D. 1912, according to the
best of my ability. So help me God."
Q. Who was that signed by?-^A. Clarence L. Miller. No, the oath is signed
by myself, Frank Flaitz.
Q. The jurat is signed by whom? — ^A. Clarence L. Miller, city clerk.
Q. That was done the day before? — ^A. That was done before.
198 CARNEY VS. SMITH.
Q. Do you know what oath you took before the city clerk at the city hall? —
A. A duplicate of this, but I wouldn't say that it is identical word for word to
this oath.
Q. You don't know what oath you did take?— A. To the best of my knowledge
that is it.
Q. These other oaths that are signed by yourself are signed by you as in-
spector, as chairman of the board of election inspectors? — ^A. Yes, sir.
Q. That is the capacity you claim to have acted In? — ^A. Yes, sir.
Q. Your name is Frank Flaitz? — ^A. Yes, sir.
Q. These oaths to the gatekeepers, are these the oaths you administered to
the gatekeepers? — A. Yes, sir; to the best of my knowledge. I administered
the oaths before the polls opened, from memory.
Q. That oath that you administered from memory, did you administer any
such thing to anyone of the gatekeepers? — ^A. I swore the gatekeepers.
Q. Did you use this language In those oaths: " You will allow no person to
pass through the gate or railing except voters? " — ^A. No, sir; I did not
Q. That kind of an oath was not administered to either of the gate-
keepers?— ^A. Not those exact words; no, sir.
Mr. Adams. I object to that as a conclusion of the witness.
Q. You don't claim, do you, that you administered any oath to those gate-
keepers that they would not allow anyone within the railing? — ^A. The oath
that I administered to them was that they would discharge the duties of gate-
keepers at this election.
Q. You said you administered these oaths as chairman of the election
board. Now how do you claim that you were elected chairman of the board? —
A. I couldn't say positively Just whether the board elected me there, elected
me chairman or whether I acted as chairman from the council. The council
appoints the chairman as a usual thing.
Q. You don't know how you did come to be chairman? — ^A. Well, I wouldn't
say; I am not positive, no, sir, whether the board elected me chairman or
whether the council had made me chairman.
Q. You have no recollection that they took any action there that morn-
ing?—A- No, sir
ERNEST WISE, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestants as follows:
Direct examination by Mr. Adams :
Q. You testified on a former hearing, didn't you?— A. Yes, sir.
Q. You, I believe, testified that you were one of the Inspectors at the Novem-
ber 5, 1012, election In the fifteenth precinct In the city of Kalamaaoo? — ^A.
Yes, sir.
Q. Now, I call your attention to the poll book used by your election board
there, Exhibit 91. Before whom, according to this Exhibit 91, did you take the
oath to act as inspector of that election? — ^A. Clarence L. Miller, city clerk.
Q. I notice that all the inspectors of election and the clerks of the election
and the gate keepers of that election in that precinct were sworn before Ernest
Wise; what Ernest Wise was that?— A. Myself.
Q. The book shows that to be true, does it? — ^A. Yes, sir.
Q. Earl Lovett signed as an inspector; Richard H. Elwell and C. H. Gill
signed as inspectors? — A. Yes, sir.
Q. Roy Gardner signed as clerk? — ^A. Yes, sir.
Q. And C. H. Kimball as clerk?— A. Yes, sir.
Q. Who is the next fellow? — ^A. Jay Van Werder, as clerk.
Q. And Russell Thayer signed as clerk? — ^A. Yes, sir.
Q. And J. L. Ward as gate keeper? — A. Yes, sir.
Q. And J. Enshrine, I guess it is, signed as gate keeper? — ^A. Yes, sir.
Q. They signed those respective oaths to those respective oflSces? — A. Yes, air.
Q. Then you signed the Jurat under them, each one of them, didn't you? — A.
Yes, sir.
Q. But you didn't put any ofllcial designation under your signature? — ^A. No,
sir.
Q. In what capacity did you administer those oaths to those several gentle-
men there? — A. As chairman of the board of election.
Q. Had you or not taken the oath before the city clerk to act as inspector
of that election before you administered the oath to any of those other gentle-
men?— ^A. I had taken it before.
OABNET VS. SMITH. 199
Q. When did you administer the oaths to those gentlemen? — A. Before we
opened the polls, at 7 o'clock.
Q. On what day?— A. On the 5th day of November, 1912.
Gross-examination by Mr. Maynabd :
Q. You say yon signed those jurats and administered those oaths in the
capacity of chairman of the board of election inspectors for this precinct? — ^A.
Yes, sir.
Q. Do you claim to have administered those oaths in any other capacity than
chairman? — ^A. No, sir; only as chairman.
Q. How were you chairman? — ^A. By being an alderman I was chairman.
Q. That is all the way you claim to be chairman, because you were alderman
of that ward? — A. Yes, sir.
Q. What ward was your precinct in? — ^A. The fifth ward.
Q. Because you were alderman of that ward you assumed to act as chairman
of that board? — ^A. Yes, sir.
Q. Were yon the senior alderman? — A. Yes, sir.
Q. As senior alderman, you assumed to act as chairman and so administered
those oaths in that capacity?— A. Yes, sir.
Q. You did not put under your name, "Chairman of the board of election
l]i8|»ectors''?-~A. I did not.
Q. Had you been going to designate your official capacity, that is the way
yon would have done it? — ^A. Yes, sir; if I had thought it was necessary, I
would have done it.
Q. Those oaths signed by yourself, J. S. Ward, and others, were the oaths
administered to them as gate keepers? — ^A. Yes, sir.
Q. That la, you swore them that they would support the Constitution of the
United States and the constitution of this State, and that they would faith-
fully discharge the duties of the ofllce of gate keepers? — A. Yes, sir.
Q. That is the oath you administered? — ^A. That is the oath I administered;
yes, sir.
Q. There was no oath administered to them^ or either of them, that they
would not permit any person except voters to pass through the inside railing
except a voter or some one to assist a voter in preparing his ballot? — A. No,
air; nothing of that nature. Just the regular oath that is in the book.
ROLAND FAIRCHILDS, being sworn to testify to the truth, the whole truth,
and nothing but the truth, testified on t>ehalf of the contestant as follows:
Direct examination by Mr. Adams:
Q. Mr. Fairchilds, you live in Kalamazoo? — ^A. Yes, sir.
Q. You have lived here how long? — A. I was born here.
Q. How long ago? — ^A. Thirty-seven years ago.
Q. Did you act on the election board in the city of Kalamazoo at the Novem-
ber 5, 1912, election?— A. Yes, sir.
Q. What ward? — A. The fourteenth precinct.
Q. In the city of Kalamazoo? — ^A. Yes, sir.
Q. I show you Exhibit 92; what is it? — A. The poll book of the general elec-
tion held on Tuesday, the 5th day of November, 1912. It isn't filled out on the
cover.
Q. What precinct? — ^A. It does not tell.
Q. Can you tell by referring to it? — A. Yes, sir; the fourteenth precinct.
Q. Is that, or not, the poll book your board of election used there on that day
at that election? — ^A. Yes, sir; it Is.
Q. I notice the first certificate in there, or oath. Is signed by one R. J. Fair-
childs; whose signature is that? — ^A. That is my signature.
Q. It appears by that that you took the oath of insi>ector at that election? —
A. Yes, sir.
Q. Before Clarence L. Miller, city clerk? — ^A. Yes, sir.
Q. According to the way it appears on this book? — A. Yes, sir.
Q. Did you take that oath the day before, before him? — ^A. The day before;
jea, sir.
Q. That is, you mean on the 4th of November, 1912? — ^A. Yes, sir.
Q. Now, I notice that Herbert E. Congdon signed the oath of inspector and
H. Jj, Schroeder another oath, and H. M. Collins as inspector, and William C.
Pikes as derk of election, and George C. Thayer as clerk of election, and W. M.
Wing signed it as gatekeeper, and C. E. Slack signed the oath as gatekeeper,
200 CABNEY VS. SMITH.
and Henry A. Davis signed the oath as inspector; now there are no names in
the Jurats to those oaths signed by yourself? — A. No, sir.
Q. Do you know whether they took those oaths to act at that election that
day? — ^A. Yes, sir.
Q. Before whom? — ^A. Before me.
Q. Did you administer the oaths to the gentlemen whose names I have
read?— A. Yes, sir.
Q. When? — A. About 20 minutes before 7 o'clock.
Q. Had you performed any duties on the election board up to the time you
administered the oaths? — A. We appointed the chairman.
Q. Who was the chairman? — ^A. I was the chairman.
Q. What capacity did you administer the oaths to those several gentlemen? —
A. A« chairman of the election board.
(It was admitted upon the record that Clarence L. Miller was city clerk of
the city of KalamasBoo on the 5th day of November, 1912, and had been for
some time before that.)
Cross-examination by Mr. Mayitard :
Q. Did you swear them all together when you administered the oaths ?-tA.
Yes, sir.
Q. All in the same oath? — ^A. They repeated "I do solemly swear that I will
support the Constitution of the United States." substantially in the form for
the different positions, each one repeating what he was; for instance, one said
he was inspector, another was clerk and another was gatekeeper.
Q. That is all the oaths you administered to the gatekeepers? — A. Yes, sir.
Q. You didn't mention in oath to them that they would not allow any person
admitted unless they were a voter or some one to assist a voter? — ^A. Not in
the oath : no, sir.
Q. That never was made use of in any oath? — ^A. No, sir.
Q. What part did you perform as chairman of the board? — ^A- I looked up
the names and handed out the ballots.
Q. Were any ballots handed out to a voter that the voter asked for assist-
ance in marking his ballot? — A. There was no one did any marking of the
ballots for anybody.
Q, Did anybody go in the booths with anyone? — ^A. I don't know; I think
Mr. Congden and Mr. Schroeder stepped to the door when a man wanted to
ask a question.
Q. Was there any oath administered to them? — ^A. No, sir.
Q. Neither of them?— A. No, sir.
Q. Do you know of any authority you claimed to have in administering the
oath except as chairman of the board? — ^A. I was sworn in by Clarence L.
Miller and appointed chairman of the board.
Q. You were not sworn in to act at the time you were appointed? — ^A. No, sir.
Q. Did these other men hold any official positions in the city when they ap-
peared there at that time? — A. They were appointed by the city council.
Q. How do you know that? — A. I had a list from the city clerk.
Q. Who gave it to you? — ^A. The city clerk.
Q. Just simply a list of the names?— A. Yes, sir.
Q. That is all you knew about It? — A. Yes, sir.
Q. Just a list of the names? — A. Yes, sir.
Q. When you were elected chairman that morning you proceeded to ad-
minister the oaths to tlie others?— A. By the authority I had from the city
clerk I administered the oaths.
Q. He didn't appoint you as chairman, did he?— A. No, sir; he did not, but
he gave me authority to administer the oaths becaun^ he could not get around
to all the places.
Q. How did he give you authority?
A. I dont' know where he got It from but h<» gave it to me; that is all I
know.
Q. By written authority?— A. No. sir; he wrote in the notice to appear that
I was appointed on the election board and to appear before him.
Mr. Maynard. I object to that as not the best evidence and ask that the
answer be stricken out.
By Mr. Adams :
Q. You were iuFpector and had been sworn in as inspector when you admin-
istered the oaths to these others? — ^A. Yes, sir.
OABNEY VS. SMITH. 201
RIGHABD EARLY, being first sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behnlf of the contestant as follows:
Direct examination by Mr. Adams :
Q. You live In Kalamaozo?— A. Yes, sir.
Q. You have lived here for several years continuously, have you not? —
A. About thirty years.
Q. Were you a member of the election board November 5, 1912, of the general
election in the city of Kalamazoo? — A. Yes, sir, I was.
Q. What one? — ^A. Inspector.
Q. What precinct?— A. The fifth precinct.
Q. Did yon take an oath to act as Inspector or otherwise at that election at
any time?— A. Yes, sir.
Q. Before whom? — ^A. Before the city clerk, Clarence L. Miller.
Q. I show you Exhibit 93. What is it? — A. It is the poll book of the general
election of the fifth precinct, held on Tuesday, the 5th day of November, 1912.
Q. I call your attention to the first oath that appears in that exhibit. Will
you please read it from that book? — A. (Reading:) " State of Michigan, County
of Kalamazoo, ss. I do s<j1emnly swear or affirm that I will support the Consti-
tution of the United States and the constitution of this State and that I will
faithfully discharge the duties of the office of inspector of election held on
Tuesday, the 5th day of November. 1912, according to the best of my ability.
^ help me God. Richard Early. Subscribed and sworn to before me this 5th
day of November, A. D. 1912. Clarence L. Miller, city clerk."
Q. Did you take that oath before Clarence L. Miller, city clerk? — A. Yes, sir.
Q. I notice a certificate signed by John W. Rose as inspector of election, and
one signed by Hiram Bogard as inspector, and one by R. H. Buckhout and one
by M. J. McHugh as clerk, and J. R. Hedden as clerk of election, and Charles
Bobins as clerk of election, and by G. H. Lnporte as gateket'per, and by Harmon
Schering as gatekeeper of election? — ^A. Yes, sir.
Q. Is that correct on this exhibit?— A. Yes, sir.
Q. Your name appears under the jurat of each one of those oaths except the
one that you took before the city clerk? — ^A. Yes, sir.
Q- Is that correct? — ^A. Yes, sir.
Q. Richard Early?— A. Yes, sir.
Q. Those are your signatures? — ^A. Yes, sir.
Q. Under your signature to those oaths to the several inspectors, clerks, and
gatekeepers, there is no designation as to what capacity you administered the
oatluk Will you state in what capacity you administered the oaths to those
gentlemen? — ^A. As chairman of the board of election.
Q. When you administered those oaths had you before that taken the oath
before the city clerk to act as insi^ector of that election? — A. Yes, sir,
Q. When did you administer these oaths to those several gentlemen? — ^A. Just
previous to opening the polls.
Q. On what day?— A. November 5, 1912.
Cross-examination by Mr. Maynard.
Q. Did you have them all sworn at the same time? — A. I did.
Q. You ndniinistered the oaths that are in this book? — A. Yes, sir.
Q. Then you administered to the gatekeepers there the oaths that are here
signed?— A. Yes, sir.
Q. Did you swear the gatekeepers not to allow any person to pass through
the gates or inside of the railing except to vote or to assist some elector in the
preparation of his ballot? Did you administer any such oath as that? — ^A. I
did not.
Q. There was none that you know of?— A. No. sir; I did not, but they were
Bwom in to do their duty as gatekeepers on that board of election.
Q. The same as this oath here?— A. Yes, sir.
Q. To perform the duties of gatekeepers, " to the best of your ability, so
help you God?" — A. Yes, sir.
Q. You swore them to that oath? — ^A. Yes, sir.
Q. As it appears in Exhibit 92?— A. Yes, sir.
Q. Did you read that jurat to the first gatekeeper; have I read it since you
have been on the witness stand? . Did you read it out aloud?— A. At the time
they were sworn?
Mr. Matnard. Is it r.dmlttod that the oaths to the gatekeepers were all in
the same form as the oaths that counsel has had the witness read to-day?
202 OABNBY VS. SMITH.
Mr. Adams. Yes; but I move to strike out all the testimony as to any other
form of oath than that from which they have had to read from as being
incomi)etent, in the several exhibits that have been offered in evidence and as
Irrelevant, incompetent and immaterial, and not covered by any allegatii>u iu
the coutestee's answer.
W. C. HIPP, being first duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified In behalf of the coutes^tant as follows:
Direct examination by Mr. Adams :
Q. You live In Kalamazoo? — ^A. Yes, sir.
Q. And have for several years? — A. Yes, sir.
Q. Were you a member of the election board in the city of Kalamazoo
November 5, 1912, general election? — A. Yes, sir; I was.
Q. What board were you on? — A. In the first precinct of the first ward.
Q. Do you know a man named Irving M. Stimson? — ^A. Yes, sir.
Q. State whether he was a member of that S2ime election board? — A. Yes, sir.
Q. In what capacity did he act that day? — A. Chairman of the board.
Q. Was he an inspector? — ^A. Yes, sir; he was.
Q. I show you Exhibit 94, this is the poll book. Is It not, of the general
election held November 5, 1912, precinct No. 1, city of Kalamazoo? — ^A. Yes, sir.
Q. That is the precinct in which you acted? — A. Yes, sir.
Q. Will you tell us whether that first oath or certificate that you find there
on that book is, and read it? — A. (Reading.) "State of Michigan, County of
Kalamazoo, ss. I do solemly swear or affirm that I will support the Con-
stitution of the United States and the cimstitution of this State, and that I
will faithfully discharge the duties of the office of inspector of the election held
on Tuesday, the 6th day of November, A. D. 1912, according to the best of
my ability. So help me God. Signed, Irving M. Stimson. Subscribed and
sworn to before me this 6th day of November, A. D. 1912. Signed Clarence
L. Miller, city clerk."
Q. Now, then, I notice that John S. Rockwell took the oath of inspector of
election, or signed the oath, rather, and Mr. Frisbee signed the oath as inspector,
and L. W. Ma pes and W. C. Hipp; is that your signature? — A. Yes, sir.
Q. Samuel B. Myers signed the oath as clerk of election? — ^A. Yes, sir.
Q. And John McCarthey as clerk of election? — A. Yes, sir.
Q. And Henry R. Campbell signed it as gatekeeper? — A. Yes, sir.
Q. And S. G. Chilson signed it as gatekeeper? — ^A. Yes, sir.
Q. That is true, according to the exhibit in your hands? — A. Yes, sir.
Q. Exhibit 94?— A. Yes, sir.
Q. Do you know whether any oath was administered to you gentlemen th»e.
or to your lnsi)ectors and clerks and gatekeepers whose names I have read out
of the Exhibit 94?— A. I think there was, by Mr. Stimson.
Q. When did you administer the oaths to the other members of the Section
board? — A. I should judge about 20 minutes to 7 o'clock, or something like that
Q. Before any work had been done by the board or after work had been
done? — ^A. Before any work had been done, practically, by the board.
Q. Do you know whether Mr. Stimson was sworn in before you were? — ^A. He
was sworn in before.
Q. I notice that none of these Jurats are signed here except the one that ap-
pears under the certificate of the oath of Mr. Stimson, In Exhibit 94. Is that
correct? — A. Yes, sir.
JESSE WIIvKINS, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestant as follows:
Direct examination by Mr. Adams :
Q. Mr. Wilklns, you reside in the city? — ^A. Yes. sir.
Q. Your name is Jesse Wilklns? — ^A. Yes, sir.
Q. Were you living in Kalamazoo on November 5, 1912? — ^A. Yes, sir.
Q. Did you act on the election board in the city of Kalamazoo at the general
election held Tuesday, November 5, 1912? — A. Yes, sir; second precinct
Q. In the second ward? — A. The first ward.
Q. Did you take an oath to act as inspector or an officer on that election
board in that precinct on that day? — A. I took an oath to act as chairman of flie
board.
Q. Before whom? — ^A. Clarence L. Miller, city clerk.
n
CARNEY VS. SMITH. 203
Q. When did you take that oath? — ^A. It was either the night before or that
morning of the election ; I will not say which now.
Q. Did William 0*Bryne act as inspector of that election? — A. Yes, sir.
Q. I show yon E2xhibit 95; state whether that is the poll book yon gentlemen
used tliere that day in that precinct. — ^A. Yes, sir.
Q. I notice that Will O'Bryne signed an oath as inspector and 6. F. Mahoney,
F. A. Newall, and E. R. Peel signed oaths as clerks, and L. Kile acted as clerk,
and George E. Kelly signed an oath as inspector and Samuel Flint signed an
oath as gatekeeper, and John Hansen acted as gatekeeper; is that correct? —
A. Yes, sir.
Q. As shown by that exhibit? — ^A. Yes, sir.
Q;. I notice that the name of Jesse Wilkins appears there to the jurats to
those names I have Just read. — A Yes. sir.
Q. Is that your signature? — ^A. Yes, sir.
Q. In what capacity did you administer the oaths to those several g»itlemen
there? — ^A. As chairman of the election board.
Q. You administered the oaths, did you? — ^A. Yes, sir.
Q. When did you administer them? — ^A. In the morning when we organised
the board, before they performed any of their duties.
Q. You had taken an oath before that to act as inspector of that election
before the city clerk? — ^A. Yes, sir.
Q. Clarence L, MUler?— A. Yes, sh-.
Cros»«xamination by Mr. Matkajrd:
Q. You didn't sign any of those oaths, did you? — A. Yes, sir.
Q. Which one?— A. That one (indicating).
Q. Who is that sworn to before? — ^A. I swore to it before the city clerk.
Q. That appears to be sworn to before somebody else. — ^A. Apparently.
Q. They signed the jurat in your name? — A. That is my writing.
Q. You signed the jurat? — A. I signed them both.
Q. You first signed the oath then signed the jurat?— A. Yes, sir.
Q. The oaths administered to the gatekeepers, tlie first oath there; who
was that gatekeeper? — ^A. Samuel Fields.
Q. He signed the jurat himself, didn't he?— A. He did.
Q. He didn't sign the oath at all?— A. He signed it in the wrong place.
Q. This book does not show that any ofllcer administered an oath to him,
does It? — ^A. No, sir; it does not.
Q. Who signed the oath of the next gatekeeper? — A. John Hansen.
Q. As gatekeeper? — ^A. Yes, sir.
Q. Did any officer sign the jurat? — A. No, sir.
Q. Witness, I ask you whether you administered an oath there to the keeper
of the entrance gate to admit no one within the railing only those who en-
tered for the purpose of voting or for the purpose of assisting someone in
marking their ballot?
Mr. Adams. I object to that as irrelevant and immaterial and for the further
reason that there is no allegation contained in the answer of the contestee to
make any such proof material or competent in this proceeding.
A. I administered an oath to the gatekeepers
Q. That question can be answered yes or no.
(Last question read.)
A. I administered an oath to the gatekeepers the same as it is in the book
there.
Q. You didn't use that language? — A. I didn't word it that way; no.
E3. E. LABADIE, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestant, as follows:
Direct examination by Mr. Adams :
Mr. Labadie, you reside In the city of Kalamazoo ?— A. Yes, sir.
Q. Have lived here how long? — A. About 20 years.
Q. Were you a member of the election board in the city of Kalamazoo at
the general election held on Tuesday. November 5, 1912?— A. Yes, sir.
Q. What precinct? — ^A. The ninth precinct.
Q. Did you take any oath to act in any capacity as any ofllcer of that elec-
tion before anybody?— A. Yes, sir.
Q. Before wliom?— A. The city derk.
204 CABNEY VS. SMXTU.
Q. What oath did you take? To act In what capacity?— A. As inq)ector of
the election.
Q. Before Clarence L. Miller?— A, Yes, sir.
Q. As city clerk?— A. Yes, sir.
Q. When did you take that oath?— A. I took that on Monday night liefore
election, I think on the 6th, and the election was held on the 7th. Or It was
Monday night, that would be the 4th. The night of the council meeting.
Q. Were you a member of the council November 4, 1912? — ^A. Yes, sir.
Q. You were alderman from what ward? — ^A. The fourth.
Q. By virtue of your being alderman you were a member of the city council
at that time? — ^A. Yes, sir.
Q. Do you know who the other inspectors were there that day? — A. Why, I
have got it down in a little book I carry in my pocket.
Q. Have you it with you? — ^A. Yes, sir. I think I can tell without the book.
Q. What did you act as? — ^A. As inspector. John Verhage as inspector and
Mr. Borne as inspector.
Q. Who were the clerks? — ^A. George B. Brown and John Bennett and M. Mc-
Moctur.
Q. Who as gatekeepers? — A. J. DeSwartz and NicJ Reiser.
Q. Do you know whether any oaths were administered to the other Inspectors,
clerks, and gatekeepers there? — ^A. Yes, sir.
Q. Who administered the oath to them? — ^A. I did.
Q. When? — ^A. In the morning before the polls opened.
Q. In what official capacity did you administer those oaths? — ^A. As chairman
of the board.
Q. You had been sworn in before him as Inspector by the city clerk? — k.
Tes, sir.
Q. Did those men ac*^ there as inspectors and gatekeepers, respectively, that
you have named? — A. Yes, sir.
Cross-examination by Mr. Matnabd:
Q. YoQ didn't make any written oath? — ^A. We filled out the poll book there.
Q. You Just filled out one book? — ^A. I think we filled out two books.
Q. You made them in duplicate? — ^A. Yes, sir.
Q. You made all the books In duplicate? — ^A. Yes, sir.
Q. They were all alike as you understand? — ^A. Yes, sir.
Q. Whatever occurred you put in one book and you put the same in the other
book? — A. Yes, sir.
Q. You made out two statement books? — A. Yes, sir.
O. And two tally sheets? — A. Yes, sir.
Q. And two poll books? — ^A. Yes, sir.
Q. Calculated to be the same? — A. Yes, sir.
Q. It is your reooUert'on now that they are? — A. Yes. sir.
Q. Do you remember the oaths you administered to the gatekeepers? — ^A. The
wording of it?
O. Can you repeat it? — A. I don't know as I can, word for word, like this:
"You solemnly swear that you will support the Constitution of tbe United
States and the consMtution of the State of Michigan and perform your duties to
the beat of your ability as gatekeepers at this election," or words to that effect
and the same with the clerks.
Q. By changing the name? — A. Yes. sir.
Q. How many gatekeepers did you have? — ^A. Two.
Q. Did you have an entrance ga*^e? — A. Yes, sir.
Q. And one where the voters left the voting place? — ^A. Yes, sir.
Q. Did you have a railing around the booths?— ^A. Yes, sir.
Q. Those gates were placed in the railing? — ^A. Yes, sir.
Q. Did you have one gatekeeper at the entrance gate? — ^A. Yes, sir.
Q. Did vou swenr the gatekoeper at the entrance gate not to admit any per-
sons within the railing only those who entered to vote or those who were in
there to assist some voter in marking his ballot?
Mr. AnAMs. I object to that as irrelevant and immaterial, because there is no
allegation in the contestee's answer to admit such proof.
A. I say yes to the question.
Q. You gave that language? — ^A. Well, I think I did, as near as I can re-
member it.
Q. Did you say " to perform your duties as gatekeepers to the beet of your
ability"? Was that the language you used? — ^A. I have been on the board sev-
OABNEY VS. SMITH. 205
eral yearfl» and I know that no one is allowed behind the railing, and I think
1 used that language.
Q. That form of onth?— A. Yes, sir.
Q. You didn't recollect that when I first asked you?— A. I haven't had a
cbance to answer that yet.
Q. You gave the form? — A. That was for the inspectors.
Q. Did you use this form in the book : " I will support the Ck)nstltution of
the United States and the constitution of this State and faithfully discharge the
duties of the office of gatekeeper at this election to the best of my ability. So
help me God"? Is not that about the language? — ^A. I swore the inspectors
separately.
Q. Did you at this particular election, or did you swear them all in together? —
A. No, sir; I did not
Q. Did you swear them in separately? — ^A. Two by themselves; yes, sir.
Q. Now, can you give the oath you gave to the gatekeepers to the entrance
gate?— A. I think I could. "That you will swear that you will support the
Constitution of the United States and the constitution of the State of Michigan
and perform your duties here to the best of your ability as gatekeeeper and not
admit anyone who Is not entitled to vote," or words to that effect.
Q. Now, you think you are right this time? — ^A. I think I am.
B. F. VAN BLARCOM, being sworn to testify to the truth, the whole truth,
and nothing but the truth, testified as follows, on behalf of the contestant :
Direct examination by Mr. Adams :
Q. Mr. Van Blarcom, were you a member of the election board in the city
of Kalamazoo at the November 5, 1912, election? — ^A. Yes, sir.
Q. What precinct?— A. The twelfth precinct.
Q. At that time and for some several days before that date had you been
holding any oflScial position in the city of Kalamazoo? — ^A. Yes, sir.
Q. What? — ^A. Alderman I was.
Q. In the fifth ward?— A. Yes, sir.
Q. As such you were a member of the city council? — A. Yes, sir.
Q. Did you take any oath to act on the election board before any person
before you acted on the bonrd? — ^A. Yes, sir.
Q. When did you take that oath? — ^A. I believe it was the evening of the
4th of November, at the council meeting, 1912.
Q. Is that the poll book or is it not the poll book your board used there at
that election, that Exhibit 95?— A. Yes, sir.
Q. Will you please read the first oath In that Exhibit 95?— A. (Reading:)
** State of Michigan, county of Kalamazoo, ss. I do solemnly swear or affirm
that I will support the Constitution of the United States and the constitution
of this State and that I will faithfully discharge the duties of the office of
hispector of election held on Tuesday, November 5, 1912, according to the best
of my ability. So help me God. Signed B. F. Van Blarcom. Subscribed and
Bwom to before me this 5th day of November, A. D. 1912. Signed Clarence L.
Miller, cltv clerk."
Q. Is that your signature there? — ^A. Yes, sir.
Q. You took that oath, did you? — ^A. Yes, sir.
Q. Did Clarence L, Miller swear you on the 5th day of November? — ^A. No, sir.
Q. You took the oath on the night of the 4th of November? — A. Yes, sir.
Q. Was the city council in session that night, do you remember? — A. I be-
lieve It was. If I remember rightly.
Q. I notice in this Exhibit 95 there is an oath there signed by F. C. Waterman
as inspector? — ^A. Yes, sir.
Q. And James A. Warwick as inspector of election? — ^A. Yes, sir.
Q. And an oath ^gned by Daniel Swonk as Inspector? — A. Yes, sir.
Q. And an oath signed by Milo Hyma as clerk of election?— A. Yes, sir.
Q. And another oath signed by Frank W. Warren as clerk of election? — ^A*
Yeflk sir.
Q. And another by Dave Crandall as clerk of election?— A. Yes, air.
Q. And by W. H. Shakespeare as gatekeeper?— ^A. Yes, sir.
Q. And the Jurat to each one of those oaths, except the oath you took before
Clarence L. Miller, is under that jurat the name of B. F. Van Blarcom in each
instance ?—A. Yes, sir.
Q. Is that your signature?— ^A. Yes, sir.
Q. You put it there?— A. Yes, sir.
206 GABNEY VS. SMITH.
Q. I notice thnt nuder that sigpiature there is no designation of the capacity
you administered those oaths? — ^A. There is not.
Q. Now, in what capacity did you administer the oaths to those several men?
Mr. Maynasd. Objected to as incompetent and immaterial.
A. As chairman of the board of election.
Q. When did you administer those oaths to those several gentlemen?— A.
Just previous to oi>ening the polls.
Q. Before or after you had taken the oath before Clarence L. Miller, city
clerk? — A. After.
Cross-examination by Mr. Maynabd:
Q. The oath that you administered to the gatekeepers is this oath here in
this exhibit?— A. Yes, sir.
Q. Did you administer any other oath to those gatekeepers than that which
appears there? — A. No, sir.
Q. Which one was the entrance gatekeeper? — ^A. Charles W. Davenport
Q. You administered to him the oath that is in this book? — ^A. Yes, sir.
Q. Did you administer any oath in any other language than that oath there
to him? — . No, sir.
Mr. Maynabd. You will concede that all the oaths are in the same form?
Mr. Adams. Yes.
W. E. GEARY, being first duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestant as follows:
Direct examination by Mr. Adams :
Q. Mr. Geary, you live in the city? — A. Yes, sir.
Q. A business man here? — ^A. Yes, sir.
Q. How long have you lived in the city? — A. Thirty years.
Q. Did you act on the election board in the city of Kalamazoo on the 6th
day of November, 1912, at the general election? — ^A. Yes, sir.
Q. What board? — A. In the seventh precinct, as inspector.
Q. I notice here In Exhibit "96" which I show you, this second certificate
there or oath seems to be signed by W. E. Geary, oath of Inspector of election;
is that your signature? — A. Yes, sir.
Q. The jurat is signed by Benjamin O. Bush? — A. Yes, sir.
Q. Did Benjamin O. Bush administer the oath to you that day? — A. Yes, sir.
Q. Now, did you know, on November 5, 1912, a lady named Harriet Marsh?—
A. Yes, sir.
Q. Was she there that day? — ^A. Yes, sir.
Q. While that election was being conducted, or any part of the day? — A. Yea,
sir; part of the time.
Q. I understand that she claims she was there in the forenoon of that day;
what did she do there that day? — A. She sat Inside, about 3 feet from the table
that contained the ballots.
Q. Did she handle or have anything to do that day with any of the ballots
that were used at that election while you were there? — A. No, sir.
Cross-examination by Mr. Maynard:
Q. Did you have a railing surrounding the booths at that election precinct?—
A. Yes, sir; a partition straight across, with a door about 3 feet high where
the ballots were handed over.
Q. Which way does the building face? — ^A. Faces to the east
Q. The voters came In from the east? — A. Yes, sir.
Q. What did they enter when they first came into the room? — A. They en-
tered a hallway leading right up to where they received their ballots.
Q. Which way did the hallway run? — ^A. East and west.
Q. How long a hall was It?— A. Why, 10 feet, possibly 12.
Q. Did this hall go to the room where the voting place was? — ^A. Yes, sir;
straight to the window.
Q. What window? — A. The doorway where the ballots were handed over.
Q. Was that room where the ballots were handed over in the same room you
were in? — A. No, sir: the election board sat In one room and the booths were
in another.
' Q. Could the election board see the voters until after they got the ballots?—
A. No, sir.
Q. Mrs. Marsh A. Miss Marsh.
GABNEY VS. SMITH. 207
Q. This young lady had a seat in here where the board was? — ^A. Yea, sir; in
the same room.
Q. Where the ballots were being distributed? — ^A. Yes, sir.
Q. Do you know what she was there for? — ^A. She was admitted by card, I
suppose, to look after the Suffrage interests.
Q. She was there to influence people to vote for Suffrage was she not?— A. I
don't think so.
Q. If she said so on the stand to-day, she was mistaken?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. I couldn't answer that question.^
Q. If she said so on the stand here to-day, that her object was to influence
people to vote for the Suffrage question — ^if she so testified that, that would
be a mistake, would it?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, and
not a proper question for counsel to ask.
A. I don't know bow I would be able to judge what her intentions were.
Q. You gave n response on direct examination that she was not there for that
purpose, didn't you? — A. Just what her intentions were, I couldn't tell you.
Q. You thought they were i>erfectly honorable, didn't you? — ^A. Yes. sir.
Q. Witness, did you have an entrance gate Into the booths? — ^A. Why, the
booths opened up Into the entrance.
Q. In this voting precinct you didn't have any railing around the voting
place, did you? — A. No, sir.
Q. The voting booths were in a room by themselves, were they not? — ^A.
Yes, sir.
Q. After the voter received the ballot at the door in the room where the board
of inspectors were sitting, they took their ballot and proceeded along the hall
and opened a door that went in where the voting room was? — A. They were
given a booth by the gatekeeper.
Q. He took them to the booths? — ^A. Yes, sir; that were vacant.
Q. How did they get in where the booths were, through the door? — ^A. They
stei>ped right into the booths; the booths were lined up and they received
their ballots
Q. The door of each booth opened into the hall? — ^A. Yes, sir.
Q. This hnll was separate fr<mi the place where the board of inspectors
were?— A. Yes, sir.
Q. That is, the ball run east and west? — ^A. Yes, sir.
Q. There were doors opening to the north into the ball from each booth? — ^A.
'Hiey opened to the south ; they came in on the northeast comer of the building.
Q. They must have entered from the north? — A. No, sir; the northeast
corner of the building, facing east ; they came in and walked up and got their
ticket.
. Q. They came in from the east? — ^A. Yes. sir.
Q. The first door they arrived at was a hall" door where the ballots were
delivered?— A. Yes, sir.
Q. Which way did that door face?— A. East.
Q. They came right back to that door? — ^A. Yes, sir.
Q. Which way did the hall go they came from when they departed from
the window? — ^A. They went south into the booths: went In one side of the
booth and out of the other; came in from the north side of the booth and
came out the south side of the booths, out to the man who received and
deposited th^r ballots.
Q. They entered the booths from the north side? — ^A. Yes, sir.
Q. In the door from the north side into the booths? — A. Yes, sir.
Q. And passed through and came out on the south side of the booths? — ^A.
Ves. sir.
Q. And delivered their ballot to one of the Inspectors? — ^A. Yes, sir.
Q. Who received the ballots there?— A. I don't know his name; I think Jim
Chase, if be was on ; he has been on two or three times and I have got mixed
Dp with Jim Chase's name; if it appears there, he received the ballots.
Q. Which corner of the room was he in? — A. In the southeast comer.
Q. Where the votes came out ?-tA. On the south side of the building.
Q. Going out on the street? — ^A. Out into the alley.
Q. On the side of the building?— A. Yes, sir.
Q. Did you have any railing there or was the door the only thing between him
>Dd the alley?— A. The only thing.
Q. He went out of the door? — ^A. Yes, sir.
208 GABKEY VS. SMITH.
Q. Did those booths come clear to the ceiling? — ^A. I think not
Q. How high did they go?— A. About 8 feet.
Q. About 8 feet high?— A. Yes, sir.
Q. From where the board of inspectors sat they could not see the lK>othB? —
A. No.
Q. But they could see the voters when they left the booths? — ^A. Yes, sir;
flrom where I was I could not.
Q. Were you able to see them when they left? — ^A. Because I sat in the
southwest comer and where they deposited their ballots they went out of the
door on the south side. I could see them over the half door where they de-
posited their ballots.
Q. Was this room in which the inspectors sat facing the east? — A. Facing
the east.
Q. There was a door opening into that half door where you delivered the
ballots? — ^A. Yes, sir.
Q. That was on the east side of the room ? — A. Yes, sir.
Q. From that door where they got their ballots they went straight east —
straight west — on the north sides of the booths; and came into the booths on
the north side? — ^A. They came into the booths on the north side and went out
on the south side.
Q. Went out of the door on the southeast comer? — ^A. Yes, sir.
Q. That room in which the board sat, where was there room for a door
there where you could see them leave; in which part of the room? — ^A. Why,
the gate where they received their ballots was on the east side of the room,
not the south side of the room. The door where they left was on the south
side also.
Q. Then the door at which you delivered the ballots to the voters was in
which corner of the room? — ^A. The northeast comer. The voters came in
here [indicating] and received their ballots at the half door or gate standing
about 3 feet high and they handed their ballots over here and they took their
ballots and the gatekeeper admitted them to whatever booth was vacant, and
after they voted they came out and deposited their ballots there and they let
them out there and they walked to the street again — this is Potter Street along
up here, and here is a long table where the folks are and another table here
and there is where Miss Marsh sat, right there.
Q. Now, witness, the voters came in at the northeast corner? — A. Yes, sir.
Q. They came in opposite the booths? — ^A. Yes, sir.
Q. And when they came in they passed along by the side of the booths and
there was no railing between the booths and the voters? — ^A. No, sir.
Q. A gatekeeper was placed at that entrance gate and in the northeast cor-
ner of the building? — A. Yes, sir; inside.
Q. The entrance gatekeeper was on the Inside of the gate? — A. Yes, sir.
Q. They proceeded to the northeast corner of .that first room they entereti
into? — ^A. Yes, sir.
Q. And received their ballots through the half window there? — ^A. Yes. sir.
Q. There was no gatekeeper at that door, was there? — ^A. The ticket man
stood there that handled the ballots.
Q. No gatekeeper attended that door? — ^A. No, sir.
Q. The voters had to pass between that row of booths and that single booth
to get their ballots?— A. Yes, sir.
Q. The next room, or back room. In which the board of Inspectors sat there
was a table rimning across the room extending north and south, was there
not? — ^A. Yes, sir.
Q. On that table what was deposited? — ^A. The ballots, and on one end the
clerks working at their side.
Q. In that book room was there any door of egress? — ^A. Yes, sir.
Q. Whereabouts? — A. There was a door In the rear.
Q. Opening into what? — A. Into a storeroom — boiler room.
Q. Could you get out of the back way In going to the west? — ^A. Yes, sir.
Q. Did you have any gatekeeper there? — ^A. No, sir; the door was locked.
Q. Your board of inspectors were in this back room? — A. Yes, sir.
Q. In the southeast corner of the room what did you have — ^the southwest
comer? — A. The man who received the ballots.
Q. In the southwest corner of the room? — ^A. Yes, sir.
Q. Who received the ballots? — ^A. No, southwest; there was a table there.
Q. What was done on that table? — ^A. The ballots were initialed on the
table.
CABNEY VS. SMITH. 209
Q. Whereabouts was Miss Marsh?— A. She sat to the north and west of the
end of the table.
Q. When she was standing up she could see over that half door and see
the voters when they were going In ? — ^A. Yes, sir.
Q. But from the position in which she was in she could not see any of the
Totere when they were delivering their ballots or leaving the room, could she? —
A. No, sir ; she could see them delivering them if they came close enough to the
window, but not leaving the room.
Q. Where did the person who was receiving the ballots stand? — ^A. He stood
close to the half door.
Q. In the southeast comer of the back room? — ^A. In the southeast comer
of the back room.
Q. There was a double door opening into the room east of it? — ^A. No, air;
not a double door.
Q. Or a half door, I would say? — ^A. Yes, sir; a half door.
Q. When the voters received their ballots from the northwest corner of the
first room they entered, if the booths were full and they wanted to use a
booth on the north side of the front room, where did they go? — ^A. They had
to wait if the booths were full.
Q. Until the booths were free?— A. Yes, sir.
Q. And then ihlss through? — ^A. Yes, sir.
Q. Was there a booth in the room in the southeast comer of that building? —
A Yes, sir; very close to the southeast comer.
Q. Was that where that door was^ that door of exit ioto tbe alley? — A.
Yes, sir.
Q. Now, if any voter had taken any ballots there was nothing to hinder him
walking right out of that door into the alley at all? — A. We had a gatekeeper
there.
Q. You had three gatekeepers? — ^A. No, sir; two.
Q. Did you have one at the door that opened into the back room? — ^A. Yea,
sir; there was one there. One where they received the ballots, and one where
they deposited the ballots, two gatekeepers.
Q. Did you have one where th^ first came in? — ^A. Yea, sir; we had one
here and one here. [Indicating.]
Q. And one where they went out of that door? — ^A. Yes, sir.
Q. You didn*t have one here where they deposited the ballots or handed
them over that half door to the officer who received the ballots? — ^A. Yes, sir;
there was a man right there, this same man, it was only a small space to stand
there.
Q. One man attended to both places? — ^A. It was about 4 feet wide and 8
feet long.
Q. How many booths were there running east and west — in the first room? —
A Well, sir ; I would have to guess at that ; I would say six.
Q. Besides the two on the end? — ^A. Yes, sir; maktpg about eight in all.
Q. Those booths did they have partitions that went clear to the ceiling? —
A They had doors on both sides of them and ran up about 8 feet.
Redirect examination by Mr. Adaub :
Q. What was this building in whicl^ this election was held? — ^A. I think
it was built on purpose for that.
Q. Built on purpose for that? — ^A. Yes, sir.
Q. Were there any roon^s in the building on the floor in which this elec-
tion was held than those you have described? — ^A. No, sir.
Q. In the west room was a door where the inspectors were stationed lead*
ing outdoors somewhere? — ^A. At one end of the room.
Q. That door was locked I understand? — ^A. Yes, sir.
Q. Nobody could come in or go out with that locked?— A. It waa locked on
the inside.
Q. So the board of inspectors had charge of the key to that door? — A. Yea^
sir.
Q. Now, then, there was a gatekeeper stationed where the voters came in
that day, waa there? — A. Yes, sir.
Q. There was a gatekeeper stationed on the other sides of the booths where
the exit was for the voters to go out? — ^A. Yes, sir.
Q. I am going to make A there and B there and C and D there and E, and
I show you now what is called " Bxhibit 96," where you notice A in the circle
there, was that the entrance?— A. Yes^ air.
280—18 ^14
210 CABNBY VS. SMITH.
Q. There was a door there? — ^A. Yes, sir.
Q. The voters came in there? — ^A. Yes, sir.
Q. Was there a gatekeeper anywhere near A as marked on that EiXhiblt
96?— A. He admitted them.
Q. Where did he stand when he admitted them? — A. Inside of the door,
with his hand on the door.
Q. B where you find that In a circle, state what was done at that point? — A.
We took their names there and the ballots were handed out.
Q. The Inspector who handed the ballots there stood where? — A. He stood
close to the gate.
Q. Which side of the gate?— A. On the inside.
Q. The west side? — A. Yes, sir.
Q. The voter received his ballot at B, then where did he go? — ^A. He went
to one of the vacant booths.
Q. After getting ready to deposit his ballot, where did be go then? — ^A. He
passed through the opposite side of his booth and went to the window
marked D.
Q. Was there any inspect;or near D? — ^A. Yes, sir; about where that cir-
cle Is.
Q. There was a half door there? — ^A. Yes, sir.
Q. What do you mean by a half door? — ^A. Just as that door there, the
middle of it just below the long panels and a flat rail put on top, built for
that purpose.
Q. How high was it?— A. About 3 feet
Q. The inspector stood on the west side of that? — ^A. Yes, sir.
Q. At or near D the votjer came up to D and deposited his ballot there,
did he?— A. Yes, sir.
Q. Where did the voter go after he deposited his ballot? — A. He went out
of the door by the gatekeeper.
Q. What door? — A. The door on the southeast corner of this building
marked O.
Q. Where O is in the circle?— A. Yes, sir.
Q. Was there a gatekeeper there? — ^A. He stood there, and back and forth
to give them ordera
Q. Were the voters allowed to go into the room back 'of this half door which
was near the point where you find B and C In the circle? — ^A. No, sir.
Mr. Adams. We offer Exhibit 97 in evidence.
Q. I show you Exhibit 96; I notice there that James B. Chase just took the
oath as inspector, signed the oath as inspector; is that correct, on this book? —
A. Yes, sir.
Q. William W. Wilson signed it as clerk?— A. Yes, sir.
Q. James Prudle signed it as clerk? — ^A. Yes, sir.
Q. And Arthur Milton signed it as clerk and Charles Hand took the oath as
gatekeeiier? — ^A. Yes, sir.
Q. And George T. Brown signed it as gatekeeper? — A. Yes, sir.
Q. Now, do you know before whom the men I have named took their respec-
tive oaths for their respective positions that day? — ^A. B. O. Bush.
Q, Ben O. Bush was the same Ben O. Bush whose name appears there signed
to that certificate, that oath, before Clarence L. Miller, city clerk? — ^A. Yes, sir.
Q. When were those oaths administered to you and those other gentlemen? —
A. Before opening the polls in the morning.
Q. Was the city clerk up there that morning? — A. Yes, sir.
Q. What time was he there? — ^A. Why, he was there pretty early that morn-
ing; I expect a little after 7 o'clock.
Q. Do you know whether the city clerk administered any oath to B. O Bush
that morning? — ^A. No. sir.
Q. You don't know about that? — ^A. I do not
Q. You don't know when B. O. Bush was sworn by Clarence L. Miller? — ^A.
I understood the night before.
LAWRENCE HOLLANDER, being sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestant as follows :
Direct examination by Mr. Adams :
Q. You live in Kalamazoo? — ^A. Yes, sir.
Q» You have lived here a number of years? — ^A. Yes, sir.
Q. Were you a member of the election board in the city of Kalamasoo at the
November 5, 1912, election? — ^A. Yes, sir.
CABNEY VS. SMITH. 211
Q. What board were you on? — A. In the eleventh precinct — the election board
In the eleventh precinct.
Q: Did you take an oath before commencing to act as inspector or otherwise
on that board? — A. Yes, sir.
Q. Before whom? — ^A. Before Clarence L. Miller, city clerk.
Q. I show you Exhibit 98; what is that?— A. That is the poll book of the
general election held in the eleventh precinct in the fourth ward of the city of
Kalamazoo on the 5th day of November, 1912.
Q. Will you read the first oath or certificate that you find in that book? —
A. (Reading.) '* I do solemnly swear or affirm that I will support the Consti-
tution of the United States and the constitution of this State, and that I will
faithfully discharge the duties of the office of inspector of election held on
Tuesday, the 5th day of November, A. D. 1912, according to the best of my
ability. So help me God. Signed I^wrence Hollander. Subscribed and sworn
to before me this 5th day of November, A. D. 1912. Signed Clarence L. Miller,
city clerk.".
Q. Who signed that certificate, Lawrence Hollander? — ^A. I did.
Q- When did you sign that? — A. I signed that the evening of the election —
the morning of the 5th day of November.
Q. Where? — A. At the election place.
Q. Now, were you sworn before Clarence L. Miller at that time? — A. No, sir.
Q. When were you sworn before him? — A. If I remember right, I think on
the second day of November, before Clarence L. Miller, city clerk.
Q. I notice there is a certificate signed by Cornelius Grofott as inspector? —
A. Yes, sir.
Q. A certificate or oath by Cornelius Van Waldron as Inspector? — ^A. Yes, sir.
Q. And a certificate signed by John Goudeau? — A. Yes, sir.
Q. Ab inspector of election? — A. Yes, sir.
Q. And a certificate signed by Peter D. Bluin as clerk? — ^A. Yes, sir.
Q. And a certificate signed by L. C. Kackett as clerk of election? — ^A. Yes, sir.
Q. And by George Dilkert as clerk of election? — ^A. Yes, sir.
Q. And a certificate signed by L. B. Mans as gatekeeper? — A. Yes, sir.
Q. And another certificate by Joseph Kiel as gatekeeper? — ^A. Yes, sir.
Q. In this exhibit?— A. Yes, sir.
Q. Isn't that true?— A. Yes, sir.
Q. The oath under each one of those certificates, except the one you signed
and took the oath before Clarence h. Miller — the jurat Is signed by Lawrence
Hollander?— A. Yes, sir.
Q. In that exhibit?— A. Yes, sir.
Q. Is that your signature? — ^A. Yes, sir.
Q. In each of those instances? — ^A. Yes, sir.
Q. I notice there is no official designation under your signature to those re-
spective oaths? — ^A. Yea, sir.
Q. In what capacity did you administer those oaths to those several gentle-
men?—A. As chairman of the board of election.
Q. At the time you did that were you or were you not sworn in before Clar-
ence L. Miller, city clerk, as inspector of that election? — A. Yes, sir.
Q. When did you administer the oath to those respective gentlemen whose
names I have called your attention to? — A. Previous to opening the polls.
Q. On what day? — ^A. The 5th day of November, probably 15 minutes to 7
o'clock in the morning.
Q. On the 5th day of November, 1912?— A. Yes, sir.
Cross-examination by Mr. Matnabd :
Q. Did yon administer the oaths to the gatekeepers? — ^A. Yes, sir.
Q. Was this the only oath you administered to them? — A. There was but one
oath I administered to the gatekeepers.
Q. You made it no different than the form you found there when you swore
in the gatekeepers — ^the entrance gatekeeper? — A. Yes, sir; I added in some-
thing there. I told them to discharge their duties faithfully and impartially
as gatekeepers.
Q. How did you come to be chairman of the board? — ^A. I was informed by
the clerk that I was on the list
Q. After taking the oath you went there and assumed the duties of chair-
man?—A. Yes, sir.
Q. And acted in that capacity all the way through?— A. Yes, sir.
212 CABNEY VS. SMITH.
Mr. Adams. I offer in evidence act No. 8 of the public acts of the extra
session of the Legislature of the State of Michigan for the year 1912, being
an act to amend section 23 of act No. 190 of the public acts of 1891, as amended,
entitled "An act to prescribe the manner of conducting and to prevent fraud
and deception at elections in this State," said amended section being 3633,
Compiled Laws of 1897.
Will you concede these are the public acts of the special session of the Leg-
islature of the State of Michigan?
Mr. Matnabd. Yes, sir.
The people of the State of Michigan enact:
Section 1. Section 23 of act No. 190, Public Acts of 1891, as amended, en-
titled "An act to prescribe the manner of conducting and to prevent fraud
and deception at elections in this State," is hereby amended to read as follows :
** Sec. 23. At every election, each of the political parties, and any organiza-
tion or committee of citizens interested in the adoption or defeat of any measure
to be voted for or upon at any election, or interested in preserving the purity
of elections and in guarding against the abuse of the elective franchise, shall
have the right to designate and keep not exceeding two challengers at each
place of voting, who shall be assigned such positions immediately adjoining the
inspectors inside the polling place as will enable them to see each person as
he offers to vote, and a seat and table or desk on which he may write within
the railing shall be furnished for the accommodation of one of such chal-
lengers, and he shall have the right to inspect the poll lists as kept by the
clerks, and who shall be protected in the discharge of their duty by the in-
spectors and police. Authority signed by the recognized chariman or pre-
siding officer of the chief managing committee of any organization or com-
mittee of citizens interested in the adoi>tion or defeat of any measure to be
voted for or upon at any election, or interested in preserving the purity of
elections and in guarding against the abuse of the elective franchise or any
political party in such county or township, city, ward, or voting precinct shall
be sufficient evidence of the right of such challengers to be present inside the
room where the ballot box is kept. The chairman appointing any challenger
may, at his discretion, remove him and appoint another. Any challenger shall
have the right and privilege of remaining during the canvass of the votes and
until the returns are duly signed and made. Any officer or election board
who shall prevent the presence of such challengers as above provided, or shall
refuse or fail to provide such challengers with conveniences for the perform-
ance of the duties expected of them, shall, upon conviction, be punished as pro-
vided in section 45 of this act.
"Approved April 9, 1912."
Mr. Adams. Unless you will concede it, I want to show that Charles Ray
was a justice of the peace in the township of Texas, Kalamazoo County, Mich.
Mr. Maynard. We admit that.
Mr. Adams. It is conceded, then, that Charles Ray was a Justice of the
peace and had been for several days prior to November 5, 1912, In the township
of Texas.
CLAUDE S. CARNEY, being sworn to testify to the truth, the whole truth,
and nothing but the truth, testified in his own behalf as follows :
Direct examination by Mr. Adams:
Q. Your name is Claude S. Carney?— A. That is my name.
Q. Are you the contestant in this proceeding?— A. I am.
Q. When, Mr. Carney, did you first learn of the facts in connection with the
failure of the election board of the township of Windsor, Eaton Coimty, Mich.,
to have initialed the ballo'^s that were used at the general election November
6, 1912, on which the different candidates names— candidates for Representa-
tive in Congress — were printed not having been placed below the perforated cor-
ner, or line, which was on one comer of the ballot? — ^A. The first intimation I
had of that matter was by a letter which I received and opened on the 14th of
April, a letter from Sam Robinson, of Charlotte; the letter was dated April 12.
I got it the Monday morning following.
Q. That was the first intimation you received In regard to that, was on the
14th of AprU, 1913?— A. Yes, sir.
Mr. Matnabd. I want this testimony taken subject to this objection, and want
the objection to appear after the first question asked the witness. I object to
CARNEY VS. SMITH. 213
it as incompetent and immaterial, that there is nothing in the notice of contest
to warrant any inquiry of this Iclnd, and that the application for leave to amend
was made at a time when the time for talcing testimony on the part of the con-
testant had expired. From the testimony already given in this matter It ap-
pears that it was not a secret matter but was known to Democrats and Republi-
cans alike, that it has been the practice of that board for years to conduct
their elections in that manner. That there has been no Inquiry made by the
friends of the contestant or Information given him by his friends on makers
which were well within their knowledge, by those who were In charge of mat-
ters for the contestant, and at this time nothing but evidence in rebuttal can be
taken and it is not rebuttal.
Mr. Adams. We make the same offer that was made the other day at Char-
lotte, if you desire to rebut the testimony that has been taken in reference to
Windsor Township taken at Charlotte yesterday, April 20, 1913, or the testimony
takoi here in Kalamazoo this 30th day of April, 1913, with reference to Windsor
Township, we will stipulate a reasonable length of time for counsel to put in
such evidence in rebut al of the facts relative to Windsor Township which were
put in yesterday at Charlotte, Mich., or make such answer as they want to
make in relation thereto; such answer as they may want to make to the pro-
posed amendment filed by the contestant
Mr. Matnabd. It is stipulated and agreed on the record that the contestant's
copy of the contestant's application to Congress for leave to amend his notice of
contest was mailed to Horace S. Maynard, attorney for the coutestee, at the city
of Kalamazoo, Mich., on the 22d day of April, and was received by said attor-
ney for the contestee on the 23d day of April, 1913. And that a copy of the
same petition and the proposed amendment was personally served on John M.
a Smith, the contestee. In Washington, D. C, on the 24th day of April, 1913.
Mr. Adams. Will you stipulate that Exhibit 99, which I now offer In evidence,
is a correct copy of the contestant's application to Congress for leave to amend?
Mr. Maynard. Yes; but I will make the formal objection as incompetent and
immaterial.
The Witness. This is a copy of the original notice of contest and petition to
Congress in this contested election.
Q. Referring now to your information with regard to the failure of the
township board of Windsor to Initial the ballots referred to, in what we claim
is the proper place to Initial them, when you received the information which
you say you did receive on or about the 14th of April, 1913, what did you do in
relation to it?
Mr. Matnabd. May it be considered that the objection made to the first
question propounded to the witness may stand and cover all that the witness
gives evidence of in this inquiry, of like nature?
Mr. Adams. As far as Windsor Township is concerned, yes.
A. The first thing I did was to consult with you, one of my attorneys In this
matter, my attorney of record, John W. Adams. I believe that was not
until the 15th or 16th, I think the 16th, It seems to me that a day or two days
elapse before I was able to see Judge Adams. On the 18th day of April I
went over to Charlotte from Kalamazoo by rail and there I conferred with R. L.
Sowers, an attorney at Charlotte. I did not see the writer of the first informa-
tion, Robinson, at that time; but in my presence Mr. Sowers telephoned to
Dimondale. which is located in Windsor township, and together with Mr. Sowers
we drove in an automobile from Charlotte to Dimondale and there interviewed
Mr. M. V. Mulholand, who was the first person I talked with who claimed to
know anything about the facts except by hearsay. All the information, sub-
stantially, we got from him was that his ballot was initialed upon the upper
comer above the perforated line and he gave us the name of some of the elec-
tion board. I don't think he gave us all the board, but some of the election
board who he said would tell us about the transaction. Together with Mr.
Sowers we then visited Ray Burnett who claimed to be the clerk of the Novem-
ber fifth election and lownsbip clerk I think at that time; and he was the first
person who gave me the full information that none of the ballots when counted
bore the initials of the inspectors. From him we found who the other mem-
bers of the board were with one exception I think. I think he told us the names
of two other members of the board but he was not just sure, he got one election
mixed with another. He gave us the name of Mr. W. J. Bateman who claimed
to be supervisor at that election and one of the inspectors, and we talked with
Mr. Bateman about the transaction. He verified he Information Mr. Burnett
had given us. Then we drove back toward Charlotte and on the way we stopped
214 CARNEY VS. SMITH.
at S. J. Vauderbeck's residence. I did not see Mr. Vanderbeck himself; Mr.
Sowers went back in the field and talked with him, what he said I don*t know
except what Mr. Sowers told me about it. I stayed with the chauffeur and
helped tinker the automobile.
Q. Then what did you do? — A. I then returned to Charlotte and to Kala-
mazoo by rail. Then I think within a couple of days, or three days at least, I
made a full report of what I had learned to John W. Adams, one of my
attorneys in this matter. If I remember rightly he was away when I re-
turned. The talk was by telephone, I think he was about to go away again.
I did not have an opportunity of seeing Judge Adams or talking with him
except by telephone. Over the telephone we talked over this matter and then I
commenced business and personally drafted a petition and notice that was
finally filed, of which Exhibit 99 is a copy, which has been stipulated as the one
that was sensed. On the 22d, I mailed one to H. S. Maynard at Charlotte so he
could get it as early as possible and the other I mailed to the tally clerk of the
House and asked him to serve a copy on John M. C. Smith.
Q. Now the information you stated you first got — ^was or was not that the
first information you had of these facts? — ^A. The first information of any kind
I had.
Q. The first Information you ever had? — ^A. Yes, sir.
Q. Were you at any time before the board of county canvassers of Baton
County after the November 5, 1912 election? — ^A. I was.
Q. When? — ^A. It was during their session, I think the second day of their
session. I think it was the day after the day provided by law for the first
meeting.
Q. What, if any, claim did you make to the board there when you were be-
fore the board?
Mr. Maynabd. I object to that.
Q. What did you say?
Mr. Matnabd. I object to that as incompetent and immaterial and not proper
rebuttal.
Mr. Abams. I will withdraw that.
Q. Whot, if any, claim did you make before that board of county canvassers
concerning any fraud in that election, or any part of the election In Ebiton
County?
Mr. Maynabd. I object to that as incompetent and immaterial and not proper
rebuttal.
A. Mr. Brown testified that I said something to the effect that I made no
claim of any fraud. I did not make this statement but what I did say was this:
That I made no claim that that canvassing board had any Jurisdiction to pass
upon any question of fraud. That is the only statement I made in reference
to that matter.
Q. What did you ask that board, if anything, to do?
Mr. Maynard. I object to that as incompetent and immaterial and not re-
buttal.
A. The only action I asked the board to take. I asked the clerk to reduce to
writing, which he did in my presence before I left, so that I could not be mis-
quoted afterwards. As my recollection serves me the minutes of that board
are exactly as I stnted it before them. I think they are transcribed from the
printed slip and the record is exactly as written down in the first place as
near as I can recall.
Q. Have you with you the notice you have given for the taking of testimony
In your behalf In this proceeding? — A. I haven't all of those.
Cross examination by Mr. Maynard:
Q. You have John W. Adams as one of your attorneys of record? — ^A. Yes, sir.
Q. Who is the other attorney of record? — A. E. C. Shields, of Howell.
Q. Just to get it on the record I will ask you, has E. C. Shields been present
at the taking of any testimony during this contest? — A. No, sir; I don't tliink
he has been present at any of Uie hearings; I have been in conference with him;
he was not present.
Redirect examination by Mr. Adams :
Q. Have you retained E. C. Shields as one of your attorneys In this contest? —
A. I have.
Q. When did you retain him with reference to the time you began the pro-
ceedings?— ^A. It was some time before the filing of this contest; when steps
CABNEY VS. SMITH. 215
were taken In ft I consulted with Mr. Shields, who was formerly a college class-
mate of mine, and retained him at that time.
Q. You have consulted with him at different times since that? — A. Yes, sir;
from time to time, both in person and, I think, by telephone.
Q. I show you, Mr. Carney, what purports to be Exhibit 101 in this contest
and ask you to explain what it is? — A. Exhibit 101 is a schedule of the number
of miles traveled by each of contestant's witnesses, whose names appear thereon,
in going to the respective places that each witness was summoned for the pur-
pose of taking his deposition in this case, and also contains the number of
miles required by each witness respectively to return to his place of residence,
and the number of days each witness attended in giving his deposition. And
each witness has already received as fees the sum of money set opposite to his
name in the last column under the title of " Total fees," in accordance with
this schedule.
UinTE3) States of America, State of Michigan.
I do hereby certify that I am now and have been for a period of one year
last past a notary public of the State of Michigan and United States com-
missioner for the western district of Michigan in the third congressional dis-
trict of the State of Michigan, and that as such United SUites commissioner
and notary public that each of the witnesses whose dei)osition and testimony
is hereunto annexed were by me sworn to tell the truth, the whole truth, and
nothing but the truth, and that I did correctly take down stenographically the
testimony given in said matter by each of said witnesses, and that the testi-
mony of said witnesses hereunto annexed is a correct and true transcript of
the testimony given by each witness and of the whole thereof.
I further certify that annexed hereto are all of the depositions taken before
me as such notary public and United States conunissioner on the part of the
contestant, Claude S. Carney, and all of the depositions taken before me aa
United States commissioner and notary public on the part of the contestee,
John M. C. Smith, that all oral stipulations made between attorneys for the
respective parties before me at the time of taking said testimony were by me
correctly taken down stenographically and correctly transcribed and made a
part hereof; and that all written stipulations entered into and signed by the
respective parties and hereunto annexed were delivered to me by the attorneys
for the respective parties for the purpose of being made a part of this record
and are annexed hereto, a part hereof ; that the annexed depositions consist of
volume 1, containing 226 pages; volume 2, containing 125 pages; volume 3, con-
taining 71 pages; volume 4, containing 8 pages; volume 5, containing 60 pages;
volume 6, containing 50 pages; volume 7, containing 119 pages, on the part of
the contestant, and that annexed hereto Is also volumes 1, 2, 3, and 4, containing
833 pages, and volume 5, containing 1S3 pages ; volume 6, containing 224 pages,
and volume 7, containing 185 pages, taken on behalf of the contestee.
I further certify that annexed hereto are all of the exhibits which were deliv-
ered to me by the attorneys for the respective parties for the purpose of being
transmitted as a part of the different depositions taken in said cause; that
annexed hereto are also copies of the contestant's witness subpcenas.
I further certify that all notices to take the depositions of the different wit-
nesses on the part of the contestant and on the part of the contestee are
annexed hereto and by me returned with the said depositions; and that a copy
of the contestant's notice of contest and a copy of the contestant's amendment
to his said notice of contest, together with the answer of contestee, is prefixed to
the said depositions and returned herewith; that all of the said volumes of
depositions above described taken on the part of the said contestant and the said
contestee, together with the notice of contest and the amendment to said notice
of contest, the answer of the contestee, John M. C. Smith, the aforesaid exhibits,
subpoenas, and all of said notices to take the said depositions are hereunto
annexed and fastened together and annexed hereto and to said depositions is a
stipulation entered Into between the parties hereto, through their respective
attorneys, waiving certain requirements and irregularities in the taking of the
depositions above described.
In witness whereof I have hereunto set my hand and seal this 24th day of
May, A. D. 1913.
[SEAL.] Jos. W. Stock WELL,
Notary PuNic and United States Commissioner.
My commission as notary public expires July 8, 1913.
My commission as United States commissioner expires October 19, 1914.
216 CARNEY VS. SMITH.
TESTIMONY FOR C0NTE8TEE.
March 20, 21, 22, 25, 26, and 27, 1913.
Mr. Maynabd. for the contestee. I file with the magistrate a copy of the
answer with proof of service having been served upon the contestant on the 3d
day of February, 1913.
Mr. AnAMS. I object to the filing of that with the commissioner and making
it a part of the record as unnecessary and that it is an improper proceeding to
file it here and is incompetent, irrelevant, immaterial, and inadmissible.
(CJopy of answer marked " Exhibit 53.")
Mr. Matnabd. We also file our selection of Joseph W. Stockwell, notary
public in and for the county of Kalamazoo in said third congressional dis-
trict, State of Michigan, before whom to take our testimony for the respondent
John M. O. Smith, reserving the right to take testimony before one or more
notaries public besides him.
(Marked "Exhibit 54.")
We also offer in evidence the commission of Joseph W. Stockwell as notary
public and will read it into the record. [Reading:]
State of Michigan.
[Michigan's coat of arms.]
EXECTTTIVE DEPARTMENT.
Fred M, Warner, governor in and over the State of Michigan, to all to whom
theae presents shall come, greeting:
Know ye that, reposing special trust and confidence in the integrity and
ability of Jos. W. Stockwell in the name and by the authority of the people of
the State of Michigan, I do appoint him notary public for the county of Kala-
mazoo in said State of Michigan, and I do hereby authorize and empower him
to execute and fulfill the duties of that office according to law, to have and to
hold the said office, with all the rights, privileges, and emoluments thereunto
belonging, for the term of four years from the date hereof, unless the governor
of the State for the time being should sooner revoke and determine this com-
mission.
In testimony whereof I have caused these letters to be made patent, and the
great seal of the State to be hereunto affixed.
Given under my hand at Lansing this 8th day of July, in the year of oar
Lord 1909, and of the Independence of the United States of American the one
hundred and thirty-fourth.
By the governor :
Fred M. Warner.
[Seal of the State of Micbif^an.l
Frederick G. Martindale,
Secretary of State,
(Marked "Exhibit 55.")
Mr. Maynard. We also offer In evidence Exhibit 56, being the notice to take
proofs here to-day, due personal service is accepted by John W. Adams, at-
torney for the contestant.
DENNIS A. HAGER, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestee as follows :
Direct examination by Mr. Maynard:
Q. Mr. Hager, what is your given name? — A. Dennis A. Hager.
Q. Where do you reside? — ^A. In the township of Sunfield.
Q. Do you hold any to^^ship office in the township of Sunfield? If so, ,
what? — ^A. I do ; I am a Justice of the peace there.
Q Were you a justice of the iieace on the 5th day of last November?— A.
Yes, sir.
Q. Did you act as one of the election board at the general election held in
Sunfield township on the 5th day of November, 1912? — ^A. I did.
Q. Were you present when the board was organized on the morning of the
6th?— A. I was.
Q. Were the several officials who operated on that board — did they admin-
ister tlie constitutional oath to those officers in the morning before the opening
of the polls? — ^A. Yes, sir.
OABNEY VS. SMITH. 217
Q. Who administered tlie oaths? — A. Mr. Bacon, the other justice of the
pence that was on the board ; then I administered the oath to him.
Q. He administered the oaths orally to all of those who acted upon the
board but himself? — ^A. Yes, sir.
Q. And you administered the oath to him? — ^A. Yes, sir.
Q. Was that constitutional oath administered before you opened the polls? —
A. Yes, sir, before; when we organized.
Q. Was that orally administered or did you sign the oaths?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, and
not the best evidence. The returns speak for themselves and can not be dis-
puted in that regard.
A. That was orally at that time.
Q. When did you sign the oaths that were placed in the returns? — ^A. On
the 6th day of November — the next day.
Q. Did you finish the count? — ^A. Yes, sir; we finished the count
Q. And the returns were then made up, were they? — ^A. Yes, sir.
Q. After you had the polls opened on the morning of the 5th did that election
proceed without any interruption until the noon hour? — A. It did.
Q. Then what was done? — ^A. We adjourned for one hour at noon.
Q. What occurred; what did you do with the ballots and the voting place
when you adjourned? — ^A. The box(^ were left on the table, and we left one
of the gatekeepers in charge of the boxes.
Q. Do you know whether the box was locked or not? — ^A. It was.
Q. Who held the key?-— A. I think Mr. Knapp.
Q. Was he one of the clerks of the election? — ^Yes, sir.
Q. He had been sworn in to that ofBce in the morning? — ^A. Yes, sir.
Q. Who did you leave in charge of the precinct? — ^A. Mr. Slater.
Q. Who was he? — ^^V. He was one of the gatekeepers.
Q. Had he been sworn in to that office in the morning?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A He had.
Q. When were the polls opened in the afternoon? — A. At 1 o'clock.
Q. Did you begin then again? — ^A. We did.
Q. How long did you continue to have the polls opened? — ^A. Until 6 o'clock.
Q. Were you there when the polls were closed? — ^A. At night?
Q. Yes, sir. — A. Yes, sir.
Q What time did you close tJie polls? — A. At 5 o'clock.
Q. Did you leave the voting precinct after the polls were closed before you
be^n the count? — ^A. No, sir; I did not.
Q. How did you get your supper?— A. Why, I went over to a restaurant
and got my supper after we commenced the count. Mr. Bacon and Mr. Palmer
wwe reading the ballots while I went and got my supper.
Q. Was Mr. Bacon a Justice of the peace and Mr. Palmer held the office of
supervisor? — ^A. Yes, sir; chairman of the board.
Q. Did you assist in counting any before you went after your supper?— A.
Tea, sir; I did.
Q. State what was first done after you closed the polls.— A. When we closed
the polls we opened the ballot box and counted the ballots and tallied them up
with our poll lists to see if they were all right.
Q. Did you have any excess of ballots?— A. We did not; they were all straight
Then we went to counting the ballots. Mr. Bacon went and got his supper and
Mr. Palmer and I counted or read the ballots while Mr. Bacon got his supper.
Q. Who read them, you or Mr. Palmer?— A. We changed off ; one didn't read
all the time.
Q. When one was reading what was the other doing? — A. Looking over the
ballots with him.
Q. All the while there were two that were watching the ballots?— A. Yes, rir;
eTery minute.
Mr. Adams. I object to this mode of examination, because the questions are
exceedingly leading; I object to the question as lending.
Q. Yon may state whether or not when one of you officers were reading the
ballots the other one was watching to see that no mistakes were made.
Mr. Adams. I object to that as leading.
A. Yes, sir.
Q. Was there any person there keeping tally while you read off the ballots? —
A. Our township clerk and the clerk we appointed, Mr. Knapp.
Q. What were the arrangements there — where were you located, where were
the clerks located and the ones reading them?— A. Sometimes the one that was
218 CARNEY VS. SMITH.
reading the ballots sat here [Indicating] and the two clerks sat on this side
facing the table, facing each other.
Q. The one that was reading and tallying? — ^A. TeB, sir.
Q. How long did you engage in the counting of the ballots there before there
was any interruption ?— A. I didn't get the meaning of that question.
Q. How long was the board engaged in counting those ballots before they
stopped? — A. Well, from the time we commenced the count until about 1 o'clock,
I think.
Q. How long have you been a justice of the peace In that township? — ^A. This
Is my second term; I have one year yet.
Q. How long have you lived in that precinct — in that township? — ^A. All my
life except about a year and a half.
Q. What is your age? — A. I am 61.
Q. You are acquainted, I suppose, in that township? — ^A. Pretty well ac-
quainted; yes, sir.
Q. Were there any persons that voted at that election at that prednct that
were not resident electors of that township on that day?
Mr. Adams. I object to that as incompetent and as calling for the conclusion
of the witnesSw
A. I think not.
Q. You say you counted up until about 1 o'clock at night? — ^A. Yes, sir.
Q. Then what did you do?— A. Well, we quit.
Q. What did you do with the ballots? — ^A. We put the ballots we had counted
in the bottom of the ballot box and the ballots we had not counted we rolled
up and tied up and put in the box with the ballots that had been counted.
Q. On top of those that had been counted? — ^A. Yes, sir.
Q. What did you do with the tally sheet, the tally books? — A. We put them
In the ballot box.
Q, Was the ballot box locked? — A. Yes, sir; it was.
Q. Then what did you do? — A. Well, we went out and went up to the
clerk's office, Mr. Mapes, and from there over to the barber shop.
Q. Then where? — A. We had been in the barber shop probably a couple
of minutes, when we had orders to go at it and count the votes.
Q. Then where did you go? — A. To the telephone office from there; Mr.
Hunter and I; I had to call Mr. McPeek, the prosecuting attorney, to see if
we would have to go back and count the ballots. Of course, he said we
had to
Mr. Adams. I object to that as hearsay.
Q. You were advised by the prosecuting attorney, were you? — ^A. Yes, sir.
Q. Where did you go? — A. Well, I went back; that is. after I called Mr.
Palmer and Mr. Knapp and told them to go back, they had telephones, then
I went over there and from there to the Justice of the peace, Mr. Bacon, and
notified him.
Q. Did the board assemble? — A. All but Mr. Palmer.
Q. What did he say? — ^A. He says, ** I will be there in a few minutes."
Mr. Adams. I object to what Mr. Palmer said as hearsay.
Q. Did he come back at all? — ^A. He came back about 5 o'clock the next
morning.
Q. He didn't return to the booth until 5 o'clock in the morning? — ^A. About
5 o'clock.
Q. What did the rest of you do? — ^A. We proceeded to count the ballots.
Q. Who proceeded? — A. The two clerks. Mr. Bacon and myself: we counted
the ballots and the two clerks tallied them.
Q. Who did the reading of the ballots from that time?— A. Part of the
time I read ballots and part of the time Mr. Bacon did.
Q. When one of you were reading ballots, what did the other do? — ^A. He
would look them over.
Q. What time did you complete the count? — ^A. Well, it was 5 o'clock or a
little after; we had three ballots to count when Mr. Palmer got back.
Q. Did you complete the count when he got there?— A. We did.
Q. What was done when you got the count completed? — ^A. Well, we figured
it up and made an announcement of the vote.
Q. The result of the election? — A. The result of the election; yes, sir.
Q. Do you remember about what time it was? — A. I couldn't say exactly, but
I think somewhere about half past 5; maybe a quarter to 6 o'clock in the
morning.
CAKNEY VS. SMITH.. 219
Q. Who was present when that announcement was made of the result of
the election? — A. The hoard and Henry Bera came in and there was another
man in there, his name was Campbell ; further than that I couldn't say.
Q. Was this election precinct open while you were counting so that anyone
who desired might come in and see you count? — A. They could come in but
they could not get In where we were.
Q. They could come in where they could see you counting? — A. Yes, sir.
Q. But not behind the railing?— A. We didn't allow them in there.
Q. Did you see different people In the room, while you were counting, after
you returned? — A. There were two or three came in; it was a very rainy
night
Q. When you returned what was done; were they finished up that night
before you adjourned? — ^A. No, sir.
Q. Where did you go to sign up the returns?— A. To Mr. Bacan's office.
Q. Were the boxes sealed after you got through with the election?— A. Not
that morning.
Q. Were they locked? — ^A. They were.
Q. What was put in the boxes?— A. Well, the ballots that had been used and
the ballots that had not been voted were all put In the boxes.
Q. How were they prepared to put In those boxes? — ^A. Well, the ballots that
had been used were put in the bottom of the box and the other ballots were
put in on top.
Q. Were they rolled up? — ^A. r couldn't say as to that now, whether after
we tinlHhed whether they were rolled or not.
Q. How were they as to being rolled up when you quit there about 1 o'clock
at night? — ^A. The ballots that had not been counted I took them and rolled
theiu up In a roll and tied them up and put them In the box.
Q. When you reconvened after you had been advised by the prosecuting
attorney, how did you find the ballots as compared with the way they were
when you left? — ^A. We found them Just the same.
Q. Had they been disturbed? — A. No, sir; they had not.
Q. Witness, what have you to say as to those ballots having been correctly
read when you were reading them off for the purpose of counting them? —
A. I think they were correctly read.
Q. What have you to say as to whether all the ballots that was in that box
that were cast for the contestant, Claude S. Carney, were read for him? —
A. They were ; he could not have got any more.
Q. What have you to say as to whether any more were read for John M. C.
Smith than had been cast for him at that election ?^ — ^A. I think I would be safe
In sasring there were no more.
Q. You think that each one received credit for all the votes that were cast
for him? — A. I do.
Cross-examination by Mr. Adams :
Q. You have been acting as justice of the peace over there how long? —
A. Well, seven years about.
Q. You are on your second term then? — A. Yes, sir.
Q. Your term is a four-years' term ^A. Yes, sir.
Q. How many years have you been acting as justice of the peace on your
second term? — ^A. It will be two years the 4th day of next July.
Q. Your term expires one year from July, 1913? — ^A. Yes, sir.
Q. Did yon qualify as a lustlcc of the peace this last term you have been
endeavoring to fill that position? — ^A. I did.
Q. Where did you qualify? — ^A. In the village at Sunfield.
Q. Before whom? — ^A. Before the township clerk.
Q. W^hat was his name? — ^A. Mr. Bastien, I think, was clerk at that time.
Q. What is his first name?-^A. Ransom.
Q. After you qualified at that time, did you resign your office as justice of
the peace? — A. I did not.
Q. You said you were present when the board organized? — A. I was.
Q. Who else was present there at the time the board organized on the 5th
day of November at the township of Sunfield? — A. The rest of the board were
there.
Q. Who else, give their names, I want the names of those who were there
at the time that the election board organized on the morning of the 5th day
of November. 1912?— A. John Palmer. Harry H. Mapes, H, Shaver, D. W. Knapp,
Albert Sayer, Frank H. Bacon and myself, and I think Alvin High was there;
I think he was one of the gatekeepers.
220 CARNEY VS. SMITH.
Q. You were a Republican at that time? — ^A. I always have been.
Q. You were on that day, election day, a Republican? — A. Yes, sir.
Q. You say that Mr. Bacon administered the oaths to the other members of
the election board on that day and the gatekeepers? — ^A. Yes, sir.
Q. In your presence? — A. Yes, sir.
Q. You were there when it was done? — A. Yes, sir.
Q. All the time when that was being done? — ^A. Yes, sir.
Q. You say that you administered the oath to Mr. Bacon that day? — ^A. I
think I did.
Q. Are you sure? Do you want to swear now that you did? — A. I am quite
positive that I did.
Q. You take your oath here now, do you, that you administered the oath to
Mr. Bacon for him to act as inspector of that election on that day, do you? — ^A.
No ; I wouldn't take my oath to that, but I think I did.
Q. You signed the certificate to that effect, did you, that you did administer
that oath?— A. I think I did.
Q. You are pretty sure about that? — ^A. I would not be sure about It.
Q. Will you swear that you did? — A. No, sir; and I wouldn't swear that I
did not.
Q. You are pretty positive you did? — A. Yes, sir.
Q. You are as positive of that as you are that you administered the oath to
Mr. Bacon on that day? — ^A. I will not say that I did either one now, but I
think I did.
Q. Your best recollection Is that you did? — ^A. Yes, sir.
Q. That is your best recollection, that you administered the oath to him and
that you signed the certificate showing that you administered the oath to him,
Frank H. Bacon, to act as an inspector of that election In that township on
that day, eh?— A. Well. I think I did.
Q. I show you £bchibit 13 and call your attention to pages 2 and 3 of that
exhibit. Will you testify now whether there is any certificate on those two
pages anywhere in that exhibit which shows that you administered any oath to
Frank H. Bacon on that day to act as an Inspector of that election? — ^A. It is
not there; no, sir.
Q. None of those oaths on this exhibit I have just called your attention to
were, as a matter of fact, signed by any of the officers at that election, Includ-
ing the clerks, on the 5th day of November, 1912, were they? — ^A. I think not.
Q. Those oaths on that Exhibit 13, to which your attention is directed, were
signed by J. H. Palmer, Dennis A. Hagar, Harry H. Mai)es, and D. W. Knapp
on the 6th day of November, 1912, for the first time, is that correct?— A. I
think so.
Q. As appears by this Exhibit 13, the only men that signed any oath on that
day, the 6th of November, 1912, were J. H. Palmer, Dennis A. Hagar, H. H.
Mapes, G. W. Knapp, and Charles Gilbert as gatekeeper, and Z. D. Slater as
gatekeeper and Albert Sayer as instructor, is that correct? — ^A. I think so.
Q. And as api)ears by this Exhibit 13, the names I have Just read in my last
question, or called your attention to in my last question, are the only men as
appears by this Exhibit 13 who took any oath to fill any of the positions in the
conduct of that election on that day of the 5th of November, 1912? — A. I think
so. I know Mr. Bacon was put under oath, but he didn't sign it, that is all.
Q. You said you adjourned for one hour at noon? — ^A. Yes, sir.
Q. On the 5th?— A. Yes, sir.
Q. All of you left the place where you were holding that election and went out
to lunch? — ^A. No, sir.
Q. EiXcept one man? — A. Yes, sir.
Q. And that one man was who? — ^A. Z. D. Slater.
Q. Z. D. Slater was a gatekeeper at that election? — A. Yes, sir.
Q. He was -not an inspector? — A." No, sir.
Q. He was not a member of the board of election? — A. No, sir.
Q. And the Slater you referred to In this last answer, or in the last answer
in which you used the name of Slater, was the Z. D. Slater who signed the
certificate or oath on page 4 of Exhibit 13, was he not? — ^A. Yes, sir.
Q. That is the same man? — A. Yes, sir.
Q. And that Z. D. Slater whose name appears to that certificate on page 4
of Exhibit 13 as having taken the oath of gatekeeper was the man you left
in that voting place with that ballot box and everything else when you went
to lunch at noon on the day of the 5th of November? — ^A. Yes, sir.
CARNEY VS. SMITH. 221
Q. Did Slater go to lunch tliat'day at noon?— A. I don't know whether he
went before or after — in the noon hour, someone came back — one of the clerks
of the board. I don't remember who took his place
Q. You were not there then, were you?— A. No, sir.
Q. How do you Imow he came back? — A. He was back when I came back.
Q. The most you can say is that you found one of the clerks there when you
got back?— A. Yes, sir; William Knapp said
Q. I don't care what he said, I want your knowledge, not what he said.
When you got back from your noon lunch on that day, you didn't find Slater
there?— A. No, sir; I think it was Mr. Knapp that was there.
Q. What Knapp?— A. William Knapp.
Q. Was that D. W. Knapp?— A. Yes, sir; I think he was the man tliat was
there.
Q. Then Slater was gone when you got back from lunch. He was not there
at the voting place? — ^A. No, sir.
Q. When did Slater get back? — ^A. He got back before we opened the polls,
or by the time we opened the polls at 1 o'clock.
Q. Where did you go to lunch that day?— A. I went up to my father's; he
lives in the village.
Q. Did you live In the village then?— A. No, sir; I don't live there now; I
never did.
Q. How far did you live from Sunfleld on that election day? — A. Four miles.
Q. What did the board do when it adjourned for that noon at lunch, if it
adjourned?- A. What did the board do?
Q. Yes, sir. — A. They went and got their dinners, I guess.
Q. What was said about adjournment, if anything? — ^A. We adjourned for
one hour.
Q. Who made the adjournment? — A. I don't remember whether Mr. Palmer
or myself; I don't just remember.
Q. What was said about adjournment? Tell me what was said. — ^A. We
called at 11 o'clock — ^we called an adjournment for one hour — called it from that
time until 12 o'clock, and at 12 o'clock we called an adjournment.
Q. You called it, you say, from 11 o'clock — how many times did you call
It from 11 o'clock until you finally adjourned? — A. Eleven, half past 11, 15
minutes to 12, and at 12.
Q. What did you say at 12 o'clock — what was said about an adjournment?
Give me the words as near as you can. — A. " Hear ye, hear ye, the polls of this
election are closed for one hour."
Q. Who did that? — ^A. I couldn't say whether myself or Mr. Palmer.
Q. Were you there when the announcement was made? — ^A. Yes, sir; I was.
Q. You got back about 1 o'clock? — A. I got back to the voting precinct before
1 o'clock.
Q. What was done in the way of opening the polls? — ^A. We called the opening
of the polls.
Q. Who called it?- A. I think Mr. Palmer.
Q. What did he call?— A. He called, "The polls of this election are now
open."
Q. You were there when he called it? — ^A. Yes, sir.
Q. Who else were there of the men who had been acting in the conduct of that
election before you took your adjournment at noon? — ^A. I think they were all
there.
Q. Tell who they were. — ^A. I think they were all there.
Q. Was Mr. Sayer there? — ^A. I think so.
Q. Well, now, had you all been there all the morning — I mean all you fallows
who were having something to do with the conduct of the election? Did you
stay there from the time you opened the polls, all of you, until you took the next
adjournment? — ^A. We all did but Mr. Palmer; you couldn't keep him there.
(Whereupon the hearing was adjourned until 1 o'clock p. m.)
DENNIS A. HAGBR, recalled for further cros&-examination by Mr. Adams,
testified as follows :
Q. When you went away to your noon luncheon on election day from that
voting place what was done with the election books? — ^A. I think they were left
on the table. .
Q. When you got back from your lunch — the noon lunch that day — to the
voting place the books were still on the table?— A. They were.
222 CABNBY VS. SMITH.
Q. Who had the key to the ballot box?— A. I think Mr. Knapp.
Q. You say you think. Do you know whether he had or not?— A. I wouldn't
swear positively, but I think he had it.
Q. Do you know whether the ballot box was locked when you left for your
noon lunch that day? — ^A. It had not been unlocked from the time we locked it
in the morning.
Q. Do you know that it was locked of your own knowledge? — ^A. I didn't see
It locked
Q. You didn't?— A. No, sir.
Q. Now to go back — the polls opened up, you testified, at 1 o'clock. Were
all those who were officers of any character in that election that day there yrheai
you opened up after the noon lunch? — ^A. Yes, sir; at 1 o'clock.
Q. Then you kept the polls open until 5 o'clock that day? — A. Yes, sir.
Q. Now, did any one of the officers of that election — ^any of the Inspectors — I
will change the question. Did any of the inspectors, after you opened the polls
at 1 o'clock that afternoon leave the polling place up to the time that the polls
closed at 5 o'clock that afternoon? — A. They did.
Q. Who?— A. Mr. Palmer.
Q. Did any others, or other one or ones, of the inspectors go out besides Mr.
Palmer? — A. Not that I recollect of now.
Q. You didn't leave the polling place? — A. I couldn't get away. I couldn't
keep Mr. Palmer there long enough so I could get away.
Q. Whether you could keep him there or not, the question Is, Did you leave
after you came from the noon lunch and the polls opened at 1 o'clock up to the
time the polls closed at 5 o'clock that day? — ^A. I might have went out to draw
water or something like that ; I don't remember as to that.
Q. You don't remember whether you did or not? — ^A. No, sir; I couldn't say
whether I did or not.
Q. How many times did Mr. Palmer go out that afternoon before 5 o'clock? —
A. I couldn't tell you that; I couldn't say. He would go out and be gone
awhile, and come back and stay a few minutes and be gone again.
Q. In other words, as I take it from what you say, he was out rather more
than in after 1 o'clock up until 5 o'clock? — ^A. I should say so; yes, sir.
Q. Didn't some of the other inspectors go out any that afternoon besides
yourself and Mr. Palmer? — A. They might have; I couldn't say.
Q. I understood you to say that there were no excess of votes in the ballot
box, no more votes than your box showed had been cast? — ^A. I think they tal-
lied up exactly ; I think so.
Q. At 5 o'clock — when 5 o'clock came — what did you do to close that election,
if anything? — ^A. We called the election closed ; gave the call.
Q. Was 5 o'clock the first call you gave? — ^A. No, sir.
Q. When did you first call? — A. Four o'clock.
Q. When next? — ^A. A quarter past 4.
Q. When next?— A. Half past 4.
Q. Then 5 o'clock?— A. Yes, sir.
Q. Was the voting then stopped? — ^A. There was no one there to vote.
Q. The question is whether when 5 o'clock came you made the last call and
the vote was then stopped? — ^A. There was no one there to vote.
Q. There were no people in there to vote then? — ^A. No, sir.
Q. How long before 5 o'clock do you say the last vote was deposited in the
ballot box that was cast there that day? — ^A. I couldn't say.
Q. Can you remember now by thinking of it? — ^A. I can't
Q. Do you remember who was the last man to vote? — ^A. I couldn't say.
Q. When you closed the polls, what did you do? — ^A. Why we op^Md the
box
Q. Right away? — ^A.' Pretty soon; yes, sir.
Q. How many ballot boxes did you have there that day?— A. We had to have
two.
Q. How many did you have? — A. We had three ballot boxes, two for the gen-
eral election and one for the suffrage vote.
Q. You voted for suffrage up there, did you? — ^A. Yes, sir.
Q. Which ballot box did you open first when you began counting the bal-
lots?— ^A. We opened the last one we used ; it got so full we could not get any
more ballots in, and we took the other one.
Q. You used two ballot boxes in which the tickets for Ck>ngreasmen were de-
posited during the carrying on of the election there? — ^A. Yes, sir.
Q. One of them got full and you used another? — ^A. Yes, sir.
CABlirEY vs. SMITH* 223
Q. About when in the day did you begin using the second one in which yon
deposited the vote for Congressmen? — ^A. Well, now, I couldn't say exactly.
Q. Have you any idea ? — ^A. I think it was a little before noon, or might have
been afternoon ; I couldn't say.
Q. Was the second box you used for d^)ositing the votes for Congressmen as
fall as the first one you used in which the votes for Congressmen were depos-
ited?—A. Well, I don't think there was a great lot of difference; they were
pretty well filled up, both of them.
Q. I show you what is marked " Exhibit 3," statement book of the general elec-
tion held on Tuesday the 5th day of November, 1912, at the village hall, town-
ship of Sunfield, county of ESaton, Mich., and call your attention to page 16,
to the heading there ** certificate," You notice the names J. H. Palmer, Frank
H. Bacon, and Dennis A. Hager, signed there, inspectors of election; is that
your signature there — Dennis A. Hager? — ^A. Yes, sir.
Q. You signed it there, did you? — A. Yes, sir.
Q. I notice that certificate is dated, ** this 5th day of November, 1912? "— A.
Yea, sir.
Q. It was not made out on that day, was it? — A. Yes, sir; it was made out
on the 5th.
Q. When was it made out on the 5th? — A. Whenever we would have a little
time we would fill this in there.
Q. Did you see that certificate made out on the 5th day of November, 1912,
to which your attention is now directed? — A. I couldn't swear I did; I saw the
boys working on the books, the clerks.
Q. You don't know whether the clerks filled that certificate out to which your
attention is now directed, on the 5th day of November, do you? — ^A. I wouldn't
srrear it was.
Q. It was not signed on the 5th day of November? — ^A. I don't think so.
Q. You know it was not? — A. No.
Q. It was signed on the 6th? — ^A. Yes, sir.
Q. About 9 o'clock on the morning of the 6th of November, 1912? — ^A. I
couldn't say Just exactly what time it was; it was on the 6th.
Q. At Mr. Bacon's ofllce it was signed, was it not; you signed it there? — ^A. I
think so.
Q. Do you know where Mr. Palmer and Mr. Bacon signed it, did you see
them sign it? — ^A. I don't remember that I did.
Q. Is that your best recollection that you didn't see Mr. Palmer and Mr.
Bacon sign that certificate, that your attention has been directed to? — A.
Well, now, I couldn't say as to that ; I saw Mr. Bacon sign some of these state-
ment books there in his office the next day after the election; I couldn't say
which ones they were.
Q. I call your attention again to Exhibit 13, which is the same exhibit I
cnlled your attention to this forenoon and is the poll, book of the election
held in Sunfield Township November 5, 1912, and especially direct your atten-
tion to page 16 of this exhibit. I notice to the certificate of inspectors on the
la.^ page of that exhibit your name or the name of Dennis A. Hager signed ; is
that your name? — A. Yes, sir.
Q. As one of the inspectors? — ^A. Yes» sir.
Q. That certificate appears to have been made out according to this exhibit
on the 5th day of November, does it not, dated November 5? — ^A. Yes, sir.
Q. It was not signed on November 5, was it? — ^A. I think probably not.
Q. You are sure it was not signed on the 5th? — ^A. I think I signed these
books on the 6th.
Q. You signed that exhibit as an inspector of that election on the 6th day
of November, 1912, didn't you?— A. I think so.
Q. Is it not a fact, of your own knowledge, that Mr. Palmer and Mr. Bacon
also signed that same certificate on this exhibit not the 5th day of November,
1912, but on the 6th of November, 1912, in the morning? — ^A. I couldn't say.
Q. Did you see them, or either of them, sign that particular certificate? — A. I
couldn't say.
Q. You signed all the books there that day, you and the inspectors, did you,
that were there for you to sign, and that had a place for you inspectors to sign,
I suppose? — A. I suppose we did.
Q. You saw those books there, I suppose, on that 5th and 6th days of Novem-
ber, 1912, did you? — A. I saw them, yes, sir; they were there.
Q. Now I show you Exhibit 24, which is a statement book of the general elec-
tion held in this township of Sunfield November 5, 1912, and call your attention
224 OABNEY VS. SMITH.
to the certificate on page 16 of this particular exhibit; it is not filled out at all,
is It?— A. It is not.
Q. So the board of inspectors didn't fill that certificate out and didn't sign it;
did you? — ^A. It doesn't look like it.
Q. That is a fact; that is what that exhibit shows, isn't it? Will you please
examine this exhibit which is now before you, Bxhibit 24, statement book of
the general election held November 5, 1912. of the township of Sunfleld, and
state whether you can find any certificate of the inspectors of that election made
out and filled out or any sort of a certificate on that exhibit made by the board
of inspectors of that election held there on that day? — ^A. I don't find any; no,
sir.
Q. There is a blank form of certificate on page 16 of this Elxhibit 24, isn't
there, where the inspectors of election were expected to fill that out, isn't there,
on page 16? — A. Yes, sir.
Q. It is blank, isn't it; absolutely blank? — ^A. Yes, sir.
Q. The first ballot you counted when you closed the polls at 5 o'clock that
day were the ballots for the candidates for the office of Representative in Con-
gress, governor of the State of Michigan, presidential electors, and county offi-
cers?— A. The first votes we counted?
Q. Yes sir. — ^A. Yes, sir.
Q. Was Mr. Palmer there when you began counting? — ^A. I think he was.
Q. Were you there when you bagan counting after the polls closed, when the
counting commenced at 5 o'clock? — ^A. Yes, sir.
Q. Was Mr. Bacon there when you began counting after the polls closed? —
A. I think we were all three there at that time.
Q. Were the clerks of that election also there at the time you began that
count? — A. They were; yes. sir.
Q. Did you go away after you began counting the ballots for supper that
night?— A. I did.
Q. Did the other members of the board go away for supper? — ^A. Not at the
same time.
Q. Was Mr. Palmer there when you left for supper? — ^A. Yes, sir.
Q. Was Mr. Palmer there when you got back from your supper? — ^A. Yes, sir.
Q. Was Mr. Bacon there when you left for supper? — ^A- Yes, sir.
Q. Was he there when you got back from your supper? — A. Yes, sir.
Q. Were both of the clerks there when you left for supper? — ^A- Yes, sir.
Q. Were both of the clerks there when you got back from your supper?— ^A
Yes, sir; they were.
Q. After you got back from your supper, state whether either of the other
of the Inspectors went to supper. — ^A. Mr. Bacon went; I don't know whether
Mr. Bacon went before I did or after.
Q. Mr. Bncon went to supper, ansrway? — ^A. Yes, sir.
Q. Did Mr. Palmer go to supper?— A. I think he wait to supper before; I
think he had an early supper.
Q. Before you did? — ^A. Yes, sir.
Q. When Mr. Palmer was away to supper on the 5th day of November, did
you remain there until Mr. Palmer got back? — ^A. Yes, sir.
Q. Was Mr. Bacon there when Mr. Palmer left for supper?— A. He was there
when Mr. Palmer was not there; yes, sir.
Q. All the time?— A. All the time.
Q. Well, they kept right on counting, I suppose?— A. Mr. Palmer and Mr.
Bacon, while I was gone to supper, counted.
Q. You didn't count those ballots they counted while you were away?— A.
No, sir.
Q. You don't know anything about those ballots, whether they were counted
correctly or not? — ^A. I couldn't say ; I presume they would be, though.
Mr. Adahs. I move to strike out what the witness presumes; I ask for the
facts.
Q. How many ballots were counted at the time yon left to go to supper on
the 5th day of November, do you remember? — A. I couldn't say for the number;
no, sir.
Q. Well, when you got back from your supper you found that they had
counted quite a number of ballots while you were gone? — ^A. Not a great many.
Q. How long were you gone? — ^A. Long enough to go to the restaurant, and
eat my supper and get back.
Q. How long were you at supper? — ^A. Probably 15 or 20 minutes.
Q. They had counted some ballots? — ^A. Yes, sir.
OABNBY VS. SMITH. 225
Q. You never did count the ballots that were coimted while you were to
supper that night V — ^A. No, sir.
Q. Ton didn't look them over? — A, No, sir.
Q. When Mr. Palmer was out you kept on counting just the same, dldii't
you?— A. Yes, sir.
Q. When he went to supper? — A. I don't know whether Mr. Palmer had sup-
per before we commenced counting or not; he had an early supper. I don't
remember whether before or after I went to supper.
Q. If Mr. Palmer went out to supper after 5 o'clock you and Mr. Bacon kept
right on counting the ballots while he was out to supper? — ^A. Yes. sir.
Q. Mr. Palmer didn't count those ballots that were counteil in his ab-
sence?—A. No, sir.
Q. As far as you know? — A. No, sir.
Q. When Mr. Bacon was out to supijer, you and Mr. Palmer and the clerks
were counting ballots? — A. Yes, sir.
Q. Mr. Bacon didn't count those ballots that you and Mr. Palmer and the
derlfs counted wh^n Mr. Bacon was out to supper? — ^A. No, sir.
Q. Well, I suppose Mr. Palmer went out to take a smoke once in a while
after you had all been to supper; he didn't stay there all the time?'-A. I
think he was there from the time we got our supper until we quit counting.
Q. Did you remain all tiiat time, too? — ^A. Yes, sir.
Q. Did or did not Mr. Bacon remain during all that time? — A. He did; I
don't think he was out of the place.
Q. Did the clerks remain, too, from the time you all got your supper? — ^A.
I am quite positive they did.
Q. I suppose those clerks went out and got some supper? — A. When I went
to sapper they said they were going to have their supper brought to them.
Q. I don't care what they said; I want to know whether you know whether
either of those clerks, after you began counting, after the polls closed at 5
o'clock that day, went out of that place where you were counting those votes
at any time or times, up to the time you adjourned that night and went over
to the barber shop. — ^A. I couldn't say positively.
Q. Well, it ran along up to what hour did you say when you adjourned at
nig^t?— A. Somewhere about 1 o'clock.
Q. On the morning of the Bth of November? — ^A. Yes, sir.
Q. You were not through counting the ballots at the time you adjourned,
were you? — A. No, sir.
Q. How many ballots had you counted up to that time; do you remember? —
A. I couldn't say.
Q. Did you have about half of them counted — of the votes cast there that day,
I mean now? This question refers to those ballots that were cast for Representa-
tive in Congress; I don't care about the suffrage ballota — ^A. We took out the
straight votes, then. I think, the split tickets, we probably had, well, maybe,
somewhere toward half of them counted ; 1 couldn't say for sure.
Q. About half of the straights? — ^A. Of the splits, somewhere along there, I
couldn't say exactly.
Q. You had, when you adjourned at 1 o'clock on the morning of the 0th of
November, about one-half of the split ballots counted? — A. We might have had
more than half and maybe not half, I couldn't say.
Q. Of the split ballots that were on the general ticket? — A. Yes, sir.
Q. On which the candidates for liepresentatives in Congress were? — A. Yes,
sir.
Q. Of those ballots, you had about that many counted? — A, Yes, sir.
Q. When you adjourned abgut 1 o'clock on the morning of tlie 6tli, had you
counted the straight Imllots for Representative in Congress? — A. We counted
them first.
Q. When you adjourned at 1 o'clock or about 1 o'clock on the morning of the
6th, state whether all the inspectors were there at the time of the adjourn-
ment— ^A. They were all there except Mr. Sayer ; he might not have been there.
Q. Mr. Sayer? — ^A. Yes, sir; he was one of the inspectors, not inspector, he
was an instructor.
Q. He was not there anyway? — ^A. I couldn't say whether he was or not, I
am not sure.
Q. Was Mr. Palmer and Mr. Bacon there at that time? — A. Y'es, sir.
Q. And you were? — A. Yes, sir.
Q. Were the two clerks there? — ^A. Yes. sir.
226 CARNEY VS. SMITH.
Q. What did yoo do there to make that adjournment? — A. Well, some one
81)oke and said, " Let's quit until morning." I think Mr. Palmer. Mr. Bacon
was almost sick and hardly able to sit up, and he says, " It doesn't seem as
though I could stay here any longer," he says, " JjeVe quit." So we quit.
Q. That Is all there was to It?— A. Yes, sir.
Q. All the announcem^its that were made? — ^A. Yes» sir.
Q. There were some people, I suppose, around there? — A. I don't remember
of any.
Q. I mean some one besides you gentlemen who were conducting the count ;
were there some of the citizens around there? — A. I don't recall that there was.
Q. Then you closed up? — ^A. We closed up.
Q. What did you do? — A. We took the ballots and put them in the box; as
fast as we counted the ballots we put them in the ballot box and straightened
them out and laid them in straight and took the ballots that were not counted
and rolled them up in a roll and tied them up and put them in this ballot box.
Q. Who unlocked that ballot box when you began counting ballots at 5
o'clock? — ^A. Mr. Knapp opened the box.
Q. Did you see him open it? — ^A. Yes, sir.
Q. Did he unlock it?— A. He opened the box.
Q. Did you see him unlock it with a key?— A. I may not Just have seen him
unjock it, but I was there when he opened it.
Q. Was the box locked when you quit that night? — A. There was a lock on It.
Q. Was it locked? — \. It must have been locked.
Q. Was It locked?— A. I think it was.
Q. Did you see anybody lock it? — A. I did not.
Q. Then, you don't know of your own knowledge whether it was locked or
not? — ^A. I didn't see tt locked; the lock was on there, and I saw the lock bang-
ing on the box.
Q. It was not sealed? — A. No, sir: It was not.
Q. Do you know who had the key to the ballot box? — A. I think Mr. Knapp
had the key.
Q. Do you know? — ^A. I don't know.
Q. What did you do with the books you had there? — ^A. We put them In the
box with the ballots.
Q. Was there room in the box for the books? — A. Yes, sir; we laid them in
on top of the ballots.
Q. Didn't some of the clerks or inspectors take away any of those books that
night? — ^A. I don't know as they did.
Q. Do you know they didn't? — A. I couldn't say; I don't think they did,
though.
Q. Yon left the ballot boxes there? — A. Yes, sir.
Q. And you all went out and left? — ^A. Yes, sir.
Q. And turned out the lights? — ^A. Yes, sir.
Q. This place that this election wah held in was in the township hall? —
A. Yes, sir: the village hall.
Q. That is where the fire department has its place? — A. Yes, sir.
Q. The fire apparatus or whatever you have there was kept there? — ^A.
Yes» sir.
Q. This election was conducted in a room where the Are apparatus was, was
It not? — A. It was in the room, but there was a railing across that diTlded It.
Q. Where you had it railed off for your voting place there-^where you held
your election that day — it was simply railed off? — ^A. Yes, sir.
Q. A railing, 3, or 4, or 5 feet hl^? — ^A. Yes, sir.
Q. There was nothing to prevent anybody from going from the other part of
that room into where these ballot boxes were? — ^A. No, sir.
Q. They could climb the railing? — ^A. Yes, sir.
Q. Or they eould go under it? — ^A. No, sir.
Q. Was it boarded up?— A. Yes, sir.
Q. There were some gates? — A. Yes, sir ; at each end.
Q. They could walk in the gates? — ^A. Yes, sir.
Q. Nobody was left there in charge of those ballot boxes, or whatever your
election board left there when you left — nt the time you left that night or the
morning of the 6th? — ^A. There was not; no, sir.:
Q. You didn't go back there on the morning of the 6th, did you, or did you
go back to that same place again the morning of the 6th ; you did, I believe?—
A. I went back, yes, sir, when we w«it back to count.
CABNEY VS. SMITH. 227
Q. When jou left there, about 1 o^clock, you all left and went out of the
building and left the boxes and books and everything there; where did you
go^A. The first place we went to Mr. Ma pes; and I went up to the clerk's
olfice— the town clerk's office — and we went from there over to the barber shop
where they were getting the election returns.
Q. How did you bapi)eu to go to the township clerk's office? — ^A. He had the
primary registration list ; that is, the registration book that he took over ; and
lie said he would have them to his office that night.
Q. Did he go with you over to the barber shop? — ^A. Yes, sir.
Q. You went to the barber shop and was In there how long? — ^A. Probably we
were in there I don't think over 15 minutes or such a matter.
Q. They were getting the election returns there that night? — A. Yes, sir.
Q. I suppose that is what you went there for? — ^A. Yes, sir.
Q. You got some returns while you were there ; heard some returns? — ^A. We
heard some returns, not much.
Q. How did you come to leave there so soon? — ^A. Well, a man that was there
be telephoned, he said, and got word from Charlotte that we should go back and
count the votes. They had telephoned to Charlotte, I think maybe to Mr.
McPeek, the prosecuting attorney, and he sent word that we should go back and
go to counting. So we talked it over and I says — ^Mr. Hunter was there then,
and I says : " I am going over and call the prosecuting attorney and see whether
we have to go back and count those votes." We went to the telephone office
and Mr .Hunter says, " I will call him for you."
Q. You went to the telephone office and telephoned to Charlotte? — A. I didn't
telephone.
Q. Somebody did?— rA. Yes, sir; Mr. Hunter did for me.
Q. How long were you in telephoning; half an hour? — ^A. No, sir.
Q. Twenty minutes? — ^A. I couldn't say; I didn't keep track of the time; only
a short time.
Q. Your best Judgment, would you say 15 minutes you were there? — ^A. Might
have been 10, maybe not that long.
Q. When you left the telephone office where did you go? — ^A. After I left the
telephone office I went and notified Mr. Bacon.
Q. Where did you go, to his house? — ^A. Yes, sir ; I only had to go about half
a block out of the way to get to Ills house.
Q. Was he in bed? — ^A. No, sir; he was up.
Q. Did he go up with you? — A. Yes, sir; I just got back there and he put his
coat on and came right up.
Q. Where did you go after you went to Mr. Bacon's office? — ^A. I went to the
village hall.
Q. Did you get any word to Mr. Palmer? — A. Yes, sir.
Q. Where from ? — ^A. From the telephone office.
Q. How did you get the other clerk back there? — ^A. He had a telephone and
I called him from the telephone office.
Q. How soon did he get there?— A. He was there Just going into the town hall
door as I got back from notifying Mr. Bacon ; I don't think he had got into the
hall yet.
Q. You went into the hall yourself? — ^A. Yes, sir.
Q. Who went there with you from the barber shop? — ^A. Mr. Mapes, the town-
ship clerk.
Q. Mr. Pahner didn't show up until pretty well toward 5 o'clock In the morn-
ing?—A. About 5 o'clock ; yes, sir.
Q. So after you adjourned about 1 o'clock Mr. Palmer was not there until
somewhere about 5 o'clock in the morning? — ^A. Five o'clock maybe, about 5
o'clock ; somewhere along there.
Q. What tinne did you begin your count after you had been over to the barber
shop?— A. I couldn't say exactly; I think probably before 2.
Q. How mucli before 2 o'clock?— A. I couldn't tell you.
Q. Give your best reeollection ; did you have a watch to look at to see what
time you commenced? — ^A. I had no watch and there was no clock in the hall
that I saw.
Q. Give me your best recollection about what time you commenced counting
after you got back from the barber shop?— A. Perhaps between 1 and 2 o'clock
as near as I can tell.
Q. Did you and Mr. Bacon stay there until Mr. Palmer got there in the morn
tag, all the time?— A. Yes, sir.
228 CARNEY VS. SMITH.
Q. Were the two clerks there at all, and was Mr. Mapes and Mr. Knapi.
there at all until Mr. Palmer got there at 5 o'clock In the morning?— A. Mr
Knapp was there.
Q. Was Mr. Mapes there ?--A. No, sir.
Q. Who went at 1 o'clock?— A. The township clerk and Mr. Bera stepped hi
and took his place.
Q. Who was that?— A. Mr. Bera.
Q. When did he first begin to help there?- A. It was just before we got
through; probably we had 10 or 12 ballots to count.
Q. Was that the first he had done in the way of helping with the count
there?— A. I think so; I will not be positive.
Q. He had been around this railing some that day, had he?— A. I think not;
only when he went through to vote.
Q. Aside from that time dow^n he had been helping some there? — ^A. I don't
think It ; I don't recollect that he had ; I don't remember.
Q. Was he the postmaster? — A, Yes, sir.
Q. He had been postmaster there in Sunfleld for quite a number of years? —
A. A number of years ; yes, sir.
Q. Some 10 or 12 years, anyway? — A. I couldn't say how long.
Q. Well, anyway, Mr. Mapes was not there from the time you went back from
the barber shop and began counting, up to the time that Mr. Palmer got there in
the morning, was he? — ^A. Yes, sir.
Q. When did Mr. Mapes leave, then? — A. He left probably half or three-
quarters of an hour before we got through in the morning; went back and
stayed probably half an hour and maybe three-quarters of an hour before we
got through.
Q. Then he left? — A. And Mr. Bera took his place.
Q. Was Mr. Bera there at the time Mr. Mapes left? — A. I think so; yes, sir.
Q. How long had Mr. Bera been there? — A. He just came in.
Q. How long before Mr. Mai)es left did Mr. Bera come In? — ^A. Just a short
time.
Q. An hour? — A. Oh, no.
Q. Half an hour? — A. Probably 5 or 10 minutes, something like that.
Q. Do you know how Mr. Bera happened to come there; did you send for
him? — A. No, sir; a man got killed there on the railroad that night and he was
down there. I am not positive, I don't know where he came from, but I think
he came from the court and dropped In.
Q. When Mr. Palmer got there in the morning, you had only about three to
six ballots to count yet? — ^A. Two or three.
Q. So that in Mr. Palmer's absence from the time he left that voting place
about 1 o'clock on the morning of November 6, up to about 5 o'clock of the
morning of November 6, 1912, you had counted quite a large number of the bal-
lots for the different candidates for Representative In Congress? — ^A. Yes, sir;
we counted some.
Q. Mr. Palmer did not at any time, up to the time you made your returns of
that election, go over those ballots that you counted in his absence, did" he?—
A. He did not ; no, sir.
Q. Nor Mr. Mapes didn't come back there again when he left there when Mr.
Bera came? — A. No, sir.
Q. Up to the time you finished the count ? — A. No, sir.
Q. D. W. Knapp was one of the clerks of that ele<'tlon? — ^A. Yes, sir.
Q. And II. H. Mapes was another clerk? — A. Yes, sir.
Q. Did you get all the ballots In the ballot box when you — In one ballot
box — when you left that voting place and went over to the barber shop in the
morning of the 6th? — A. Yes, sir.
Q. You put all the ballots in one box?— A. We laid them In the ballot box.
Q. And put the books In that same ballot box? — ^A. I think so; yes, sir.
Q. So one ballot box contained all the ballots that the two ballot boxes had
contained during the time that the voting was going on, and also contained
all the election books? — A. I think so; yes, sir.
Q. The other ballot box was not used at all then for holding any of the bal-
lots or books of that election when you quit there and went over to the barber
shop on the morning of the 6th? — ^A. I think not.
Q. When you got through counting over there on the morning of the 6th
about 5 o'clock, what w^as done with the ballots and books? — ^A. The ballots
were all put back in the box.
CARNEY VS. SMITH. 229
Q. And the books what wns cloue with those, did the clerk take them? — A. I
conldn't say whether the clerk took them then or not.
Q. Don't yon know that the clerk did take some of those books at that
time?— A. I think he might have; yes, sir, but I am not sure.
Q. Did you see the ballot box locked? — A. The ballot box was shut up;
yes» sir.
Q. The moniing of the 6th when you left the voting place?— A. Yes, sir.
Q. It was shut? — A. Yes. sir.
Q. Was it locked? — ^A. The lock was on the box.
Q. Was it locked?— A. I didn't see them lock it.
Q. You don't know whether it was locked or not? — A. I don't whether It was
locked, I couldn't swear to that.
Q. Mr. Bacon's office was some little distance from where you had been
carrying on this election on the 5th and 6th days of November, was it not? — ^A.
A short distance.
Q. About how far? — A. It is probably one block north and something like
half a block west.
Q. An altogether different and separate plat^ from where the election was
held?— A. Yes, sir.
Q. In another building entirely? — A. Yes, sir.
Q. How did you happen to go to Mr. Bacon's office? — A. Well. Mr. Bacon
says, "You had better come over to my office and fill out these books, I have
Kot a good place there and you had better come over there than stay here,"
and we went over to his office and filled out the books and made out the reiwrt.
Q. When you got over to Bacon's office, what time was it on the morning of
the 6th, as near as you can remember? — A. Well, I went and got my breakfast,
I think— I can't just tell.
Q. Approximately? — A. I think somewhere about 7 o'clock, maybe a little
after, something like that; I went back home and got my breakfast and went
back down.
Q. Was it not later now? — ^A. It might have been.
Q. Was it not nearer 9 o'clock? — A. I couldn't say as to that
Q. Was Mr. Palmer there when you got to Mr. Bacon's office thnt morn-
ing?—A. I think not.
Q. How long was It after you got there that Mr. Palmer came? — A. I don't
know.
Q. Did Mr. Palmer come while you were there? — A. He was In and out;
yes, sir.
Q. Was Mr. Bacon at his office when you got there on the morning of the
6th?— A. I think he was: yes, sir.
Q. Was Knapp there at Bacon's office when you got there? — A. Yes, sir.
Q. Was Mapes there or did he come after you got there? — A. I couldn't say
whether he was there when I got there or not.
Q. The election books were there when you got there? — ^A. I think they were.
Q. Who had them? — ^A. They were lying there on the table in Mr. Bacon's
offlea
Q. The ballot boxes were not there? — A. No, sir.
Q. You didn't see the books taken out of the ballot box the morning of the
6th a^ Bacon's office? — ^A. The ballot boxes were not there.
Q. They were over at the engine house at the town hall? — ^A. The boxes were;
yes, sir.
Q. So that, as a matter of fact, when you quit over there on the morning of
the 6th of November, J 912, it is a fact Isn't It, that all the election books you
had used there in conducting that election on the 5th and 6th days of November
tip to the time you adjourned or got through with the count and adjourned or
quit on the morning of the 6th day of November, those books were not in the
ballot box and locked up, were they? — ^A. At the time we quit?
Q. Yes; or any of them or none of them were? — ^A. In the morning?
Q. Yes; when you quit there. — ^A. I couldn't say.
Q. Well, in any event, they were over to Bacon's office? — ^A. Yes, sir.
Q. The ballot boxes were not at Bacon's office, but over where the election had
been conducted? — ^A. Yes. sir.
Q. So somebody had taken them ; they were not in the ballot boxes. If they
bad put them in they took them out and brought them over to Mr. Bacon's
office?— A. I think the clerks took them with them when they left in tlie morning.
Q. You are pretty sure about that, are you? Don't you remember that you
230 CARNEY VS. SMITH.
Baw the clerks have those books when you quit there? — ^A. I might; I dou't
recollect it just now.
Q. These books here that I am showing you now, Exhibits 24, IS, and E<x-
hibit 3 and Exhibit 4 were the books that you had over to Mr. Bacon's office en
the morning of the 6th?.— A. Yes, sir; they are the same books.
Q. They are the same books you had over there where you held the election at
the town hall, are they not? — ^A. They look like the same books.
Q. Was there a man named Campbell in the place where you held tlie election
on the 5th, at any time, helping? — ^A. No, sir.
Q. Was he around there at any time when you were tallying? — ^A. He came
In there sometime along in the afternoon, after we went back to count; he came
in and sat down by the stove until morning. He didn't haye any place to go, I
guess. He sat down and stayed there by the stove until morning.
Q. There were some people in there when you quit counting about 1 o^clock
on the morning of the 6th? — ^A. I don't recollect that there was.
Q. Were there or not? — A. I couldn't say.
Q. You don't remember? — ^A. I don't remember.
Q. You don't remember one way or the other? — ^A. No, sir; there might bave
been one or two and might not have been any ; I couldn't say.
Q. When you stated that the ballots were correctly read, you don't know
whether they were correctly read, do you? You don't know whether they were
correctly read when you were not there; you w^ould not have any knowledge
about that, would you? — ^A. No, sir; they were both Democrats
Q. (Interrui)ting.) I am asking you what you know. — ^A. No, sir.
Q. You don't know whether each candidate for Congress received credit for
all and no more votes than were cast for him when you were not there? — ^A. I
couldn't say.
Q. That you could not know anything about? — A. No, sir.
Q. When you got back there from the barber shop and commenced counting
you didn't make any public announcement of the opening of the polls, did yoo^
of the election when you resunioil work by the election boanl? — ^A. I think not.
Q. When you went over to Mr. Bacon's office you didn't make any announce-
ment that you had taken up the work of the elec*tipn board again, did you? — ^A.
I didn't know it was necessary to do that.
Q. Did you?— A. No, sir.
Q. When you pot all through you didn't make an announcement of any kind
at Mr. Bacon's office? — ^A. No, sir.
Q. When you got through with these books who took charge of them at
Bacon's office? — A. We sealed them there in Bacon's office and put them in an
envelope, and I don't know whether one or the other of the clerks took them
and took them to the itost office.
Q. Did you see them sealed? — A. Yes, sir.
Q. Who sealed themV — ^.V. I helped to.
Q. How many did you seal? — A. We sealed the whole bunch.
Q. But how many? — A. Two bunches.
Q. You sealed all the books up you had there, did you? — A. We sealed up all
the books that came here.
Q. What did you do with the others, if there were any others?— rA. I tliink
there is one book that the clerk keeps, if I mistake not; the rest were put in
envelopes and sealed.
Q. The clerk did take away one or two of them, did he; that is your l>e6t
recollection? — A. I wouldn't say.
Q. That were not sealed up? — A. I don't kujow whether he did or not.
Q. After you got tli rough there at Bacon's office that morning you didn't see
any book or books that you had used there in carrying on that election put in
any of the ballot boxes that were use<l there on election day, did you? — A. After
we got through at Bacon's office?
Q. Yes, sir. — A. No, sir.
Q. After you got through at Bacon's office you didn't see and don't know of
the ballot boxes that were used there on election day being sealed, do you? — ^A.
I should say they were sealed, but not that day.
Q. You didn't see any of them sealed before you left Bacon's office? — A. No,
sir.
Q. That you had use<l in cariying on that election on the 5th and 6th days of
November, did you? — A, No, sir.
Q. They were not sealed in the presence of the board at Bacon's office, were
they? — A. They were not there.
GABKBY VB. SMITH. 281
Q. They were uot sealed in preseuce of all the members of that board any-
where else that you know of, personally know of, were they? — A. No, sir; not
that I know of.
Q. Where did you count those ballots there in the town hall on the 5th and
6th?— A. Right where we had our ballot boxes — on the table.
Q. I understood you, or got the impression from something you said, that
people could not get in where you were counting? — A. They could climb over
the railing or go through the gates; that is all the way.
Q. Were the booths up while you were counting? — A. Yes, air.
Q. They bad not been taken down? — ^A. No, sir.
Q. Did the booths in any way keep the public from seeing what was going
CD there with the count? — ^A. No, sir.
Q. The people could not get over the railing where you were counting? —
A. They might have climbed over.
Q. I meam without climbing over or coming through the gates?— A. No, sir.
Q. How close to the railing were you carrying on the count? — A. Well, the
eiul of the table pi-obably was as far as from here to the wall.
Q. Two feet and a half or 8 feet?— A. Yes, sir.
Redirect examination by Mr. Matnaku :
Q. Mr. Hager. did you see or know of any elector asking for or receiving any
assistance or help In marking his ballot at that election on the 5th day of
November, 1912?— A. I did not.
Q. What politics did Mr. Bacon have? — A. He was a Democrat. *
Q. Is he living now? — A. He is not.
Q. Was he a man of good repute in that neighlwrhood?
Mr. AaAMS. I object to that as immaterial and Incompetent, and not the
proper way to show it, and hearsay.
A As far as I icnow, he was.
Q. What was Mr. Bayer's politics? — A. He was a strong Democrat.
Q- Yon speak of him as being an inspector of the election? — A. He was not
on the inside of the booth, back where we had the ballots on the table. When
they would come in and call for ballots he simply handed them their ballots;
that WRB his duty that day.
Q. There were two ballot boxes, you stiy, in which the ballots were placed
for candidates In office? — A. Yes, sir ; we had three boxes ; one for the suffrage
vote and the constitutional amendments.
Q. And two were used to put ballots In that were cast for candidates in
office?— A. Yes, sir.
Q. Were those boxes regular ballot boxes coming from the township? — A.
They were boxes we had always used.
Q- For that purpose? — A. Yes, sir; for years.
Q. How wer6 they locked? — A. There was a clasp that fastened on the top
of the lid and came down through a staple, and the lock went through.
Q. A padlock? — A. Yes, air; and the clasp that came on the top of the box
*'»« put on with screws and screwed fast.
Q. A steel hasp that came down? — A. Or iron; yes, sir.
Q. And this padlock went through and locked the box in that way? — A. Yes,
sir.
Q. You say that Mr. Sayer took the constitutional oath of office when he
began?— A. Yes, sir.
Q. Do you know anything about what kind of an oath he signed the next
d{iy?-A. I couldn't say.
Q. Until you hear it read?— A. I couldn't say.
Recross-examination by Mr. Adams:
Q- Ck)nD8el here caused you to say that Mr. Bayer was an inspector. He was
an instructor? — ^A. What we call nn Instructor; yes, iMr.
Q He was separate from the rest of the board when he was handing out
those ballots? — A. He was on this side of the booth and the rest of the board
on the other side.
Q. You had about four or five booths there that day? — A. Four.
Q The length of the booths as they were put up against each other occupied
what length of space? — A. I should say something like — ^
Q. (Interrupting.) All of them together?— A. Something like—I don't know
how wide they were — probably 4 feet, probably 10 feet.
Q. Now, on one side of this row of lM)Oths was Mr. Sayer with his ballots? — A.
Yes, sir.
232 CAKNEY VS. SMITH.
Q. And on tlio otlitT side of that 16 feet orcupied !»y those booths were the
members of tlie election board? — A. Yes, sir.
Q. 80 that when Mr. Sayer was handing out ballots, you men there who
were on the election board couldn't see Mr. Sayer? — A. Not without fsolng
around tliere.
Q. You would have to go around the end of the booths to sec him? — A.
Yes, sir.
Q. When the ballots were mariced by somebody, some of the inspectors, they
handed about 25 of them to Mr. Sayer? — A. Yes, sir.
Q. And when the voters came in there he would give them ballots? — A. Yes,
sir; he did that in his i)art when they came in and wanted a ballot; he would
slip them off a ballot and hand it to them.
Q. Y^ou (.'ouldn't hear what Mr. Sayer said : he could tallc with the people
and you couldn't hear what he said? — A. We couldn't hear him talk; there
were quite a pood many talking at the time.
Q. He could see and talk to people as they came in, and you couldn't hear
it?— A. No, sir.
Q. You could talk over among yourselves and Mr. Sayer couldn't hear it
where he was on the other side of those booths? — A. Sure.
Q. That is the way the election was conducted that day, was It — Mr. Sayer
on one side of those booths and you gentlemen on the other side of the
booths? — A. Yes. sir.
Q. You did it in that way all day up to the time the polls closed — Mr. Sayer
on one side and you inspectors on the other side? — ^A. Yes, sir.
Q. Those booths are about 5 or 6 feet high? — A. You could just see the top
of a man's head: T think probably 5 or 6 feet, between 5 and 6.
Q. You heard no voters ask for instructions that day? — ^A. I don't think they
did.
Q. You inspectors didn't see the voters at all. then; didn't have anything
to do with giving them any ballots, did you? — A. No. sir.
Q. You would first see the voters when they came out of the booths with their
i)allots roruly to hand them in to be deposited in the ballot box? — ^A. We could
see them in there; the doors didn't come down within a foot; but aside from
that we could not see them until they came through.
Q. That would be after they had marked their ballots? — A. That would be
after they had marked their ballots.
Q. Wl»o else acted as clerk there that day besides Mr. Mapes and Mr. Knapp,
if anybody, at any time? — A. Well, Mr. Witherall was there a few minntes
through the day, but not while we were counting the vote.
Q. What did he do there? — A, He tallied for Mr. Sayer and acted a little
while in Mr. Knapp's place, Witherall, a little while.
Q. How long did Mr. Witherall help? — A. Just a few minutes, probably 15 or
20 minutes.
Q. He was not sworn in? — ^A. No, sir.
Q. He didn't take any oath there? — A. Not that I know of.
Q. You would know If you were there all the while he was there? — A. I
calculated to be there all the time.
Q. Mr. Sayer didn't take any oath? — A. I think not.
Q. He helped count? — A. A few minutes he helped tally.
Q. That is, he kept some of those election books, put down some tallies? —
A. He would read them off; I was tallying them on the election book.
Q. You didn't take any oath to do that correctly? — A. Not that I know of.
Q. Nor did Mr. Witherall?— A. No, sir; not that I know of.
Q. Did any other one or ones assist there in tallying and counting the votes
at any time? — A. I think not.
Q. Mr. Campbell you say did not in any way assist? — A. No, sir.
Q. What did he do there? — ^^\. He sat there in a chair and slept; I guess he
didn't have any place to go.
Q. Mr. Campbell, is he here to-day? — ^A. I think not.
Q. Was he there when you quit about 1 o'clock the morning of the 6th? —
A. T couldn't say whether he was or not; I think not; I think he came back
just after we went back ; I think he came over after we went back.
Q. He w^as there when you left in the morning? — A. Yes, sir.
Q. Sitting in a chair? — A. He was there until we left, then he went out
when we went.
Q. Are you sure about that? — A. I know he did; yes, sir.
Q. What makes you positive about that, that he went away when you went
away? — A. He went out with the rest of us.
CABNEY VS. SMITH. 233
Q. Did you see him go out with you? — ^A. Yes, sir.
Q. Didn't you leave him there in the chair when you went out? — \. No, sir.
Q. Are you sure about that? — A, I know we didn't
Q. Was he a drinking man? — A. Why, he gets a little in him once in awhile;
yes, sir.
Q. Did you find him in there when you went back from the barber shop? —
A. No, sir.
Q. Was the door unlocked when you got back from the barber shop to the
room in which the election had been held? — A. Mr. Knapp just came up to the
door as we came across from Mr. Bacon*s and was unlocking the door when I
came np where he was.
Q. Were you and Mr. Knapp the first two men in there? — ^A. Mr. Mapes was
along.
Q. Were you and Mr. Knapp and Mr. Mapes the first ones in there after you
bad gone to the barber shop on the morning of the 6th when you got over to the
election? — ^A. The four of us went in almost together, Mr. Bacon, Mr. Knapp,
Mr. Mapes, and myself.
Q. Was Mr. Campbell in there when you got in? — ^A. No, sir.
Q. Sure? — ^A. I am sure he was not in there.
Q. Did you see him go in? — ^A. He came nnd hung on the railing awhile and
sat down on a chair and I guess he went asleep.
Q. Did you see him in the room that morning after you came back from the
barber shop? — ^A. I didn't see him come in the door.
Q. The first thing yon saw of him he was leaning over the railing there? —
A He stood there watching us ; yes, sir.
Q. Now, Mr. Wltherall took Knapp's place, did he? — ^A. I think so.
Q. And Mr. Bern took Mapes's place? — Y. Yes. sir; but not at the same time.
Q. There was no one man occupied in tallying there through from beginning
to the end, was there, all the time while the count was going on? — A. Why, no ;
they changed off for a short time.
Redirect examination by Mr. Maynard:
Q. Judge Adams asked you if Mr. Sayer stood there and passed ballots out
to the voters as they came in whether he would have any opportunity to have
spoken to the voters without you knowing it. Did you ever hear Mr. Sayer
say a word in favor of the election of John M. C. Smith for Congress?
Mr. Adams. I object to that as incompetent, irrelevant, immaterial, and
hearsay.
A. He may have handed those ballots out
Q. (Interrupting.) I didn't ask you that. Did you ever hear him say a word
!n favor of John M. C. Smith? — A. No, air; I never did.
Q. Did you ever hear him
Mr. Adams. I had no chance to object to that question before the witness
answered it.
Mr. Fellows. I want this objection upon the record, that this cross-examina-
tion has been prolix, the examination has been prolix all the way through
and It is apparent that the purpose of doing that is to becloud the testimony
submitted to Congress and not with the view of definitely and distinctly arriv-
ing at the questions in issue In this case.
Mr. Adams. I take an exception to the remarks of counsel as being un-
founded and unjust and not becoming to the attorney general of the State of
Michigan. I object to the question as put to the witness last and by him
answered before an opportunity was given to me to object on the ground that
It is Irrelevant, immaterial, incompetent, and hearsay, and for those reasons
I ask that the answer be stricken out. I also take exception to counsel Ihter-
rupting the witness when he has partly answered the question, evidently for
the purpose of getting him to answer It in another way.
Q. Did yon ever hear him advocate the election of Claude S. Carney for a
Member of Congress at that election?
Mr. Adams. I object to that as incompetent. Irrelevant, immaterial, and
A. I never did; no, sir.
Q. Did you ever hear him claim that he was supporting Claude S. Carney
for Member of Congress?
Mr. Adams. I object to that as Incompetent, irrelevant, immaterial, and
A. No, sir.
234 CARNEY V6. SMITH.
Q. In so far as jou know, you never knew of his having advocated the elec-
tion of either one of those men to the office of Coagrees?
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial, and
hearsay.
A. No, sir.
Q. Had you ever known of Mr. 8ayer acting iMfore as one of the inspectors
of election there?
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial.
(I^Bt queetion read.)
A. Well, I think he has.
Q. Who Initialed the ballots?— A. Frank H. Bacon.
Q. When he initialed the ballots to whom were they delivered? — ^A. To Mr.
Sayer.
Q. Was Mr. Say» seated within the railing? — ^A. He was within the railing
only on the other side of the booths from us.
Q. He was within the railing as the voters entered the booths, was he not?—
A. Yes, sir.
Q. These ballots were delivered to Mr. Bayer by Mr. Bacon, who initialed?
Mr. Adams. I object to that as leading.
A. Yes, sir.
Q. Did Mr. Sayer have a table there that the ballots were put on? — ^A. Yes,
sir; he did.
Q. Was Mr. Sayer seated by the table? — A. He had a chair there a part of
the time and part of the time he was standing, I prsauroe,
Q. When voters came in and asked for a ballot did he deliver a ballot to
them? — A. I suppose so.
Q. That Is what he wm« placed there for? — A. Yes, sir.
Q. How long had be acted in that capacity: how many years in that pre-
cinct?
Mr. Adams. Objected to as incompetent, irrelevant, and immateiial.
A. I am not sure: I think he acted there l)efore, but I am not sure; I couldn't
say positively about that, at every election ; I think he was an inspector before,
but I win not say.
Q. Those were the duties he was discharging, were they? — ^A. Yes, sir.
Q. Did he take the oath of office before he took that place? — ^A. Yes, sir.
Q. He was sworn in? — ^A. Yes, sir.
Recross-examiuation by Mr. Adams:
Q. You don't know as a matter of fact whether Mr. Sayer was slttiug down
or standing up over on the other side all the time? — ^A. I do &ot
Q. I notice that you stated in answer to counsel's question you presumed; yon
couldn't know because you couldn't see. — A. I couldn't sea
Q. You Bfiy he had a table on the side of the booth he was? — ^A. There was a
table there constantly; yes, sir.
Q. But you don't know whether he used that table or not, do you? Yon
couldn't see? — A. I couldn't see; he didn't want to stand and hold thofs
ballots
Q. (Interrupting.) I am not asking you that; we will take care of that
later. You don't know of your own knowledge whether Mr. Sayer used that
table — that one that was on that side of the booths that he was on — or whether
he didn't use It, do you, of your own knowledge? — ^A. I saw ballots on that
table.
Q. Did you see Mr. Sayer use that table on that side of the booths he was OD
while you were there on that election day? — ^A. I saw the ballots on the table.
Q. Did you see Mr. Sayer using that table for any purpose that day?— A. The
table had ballots on.
Q. You saw some ballots on the table; that is all you can say? — A. Yes. sir.
Q. Y'ou were busy, were you not, on the other side? — ^A. I was busy at times ;
yes, sir; quite busy.
Q. Mr. Palmer was out so much time tliat you bad to be busy? — ^A. I was
busy most all day.
Q. You were attending to your business? — ^A. Yes, sir.
Q. You were not watching Mr. Sayer all the Ume?— A. I didn't have time
much of the time.
Q. Mr. Sayer was over there when Mr. Palmer was out and one of you
fellows was depositing the ballots and the other one was marking the ballots?-^
A. Yes, sir.
CARNEY VS. SMITH. 236
Q. It kept you busy a good share of the time? — A. Yes, sir; I was busy at
times; at other times I would not have so much to do.
Q. When you were busy about that Mr. Sayer would be busy? — A. Yes, sir.
Q. The more people there would be in there the more busy you would be? —
A. Yes, sir.
Q. So yon could not see much and did not see much that day of what Mr.
Sayer was doing, did you? — ^A. No, sir; I did not.
Q. I don't want to get you in a wrong position here. — ^A. All right.
Z. D. SLATER, being first sworn to testify to the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Maynaiu).
Q. Mr. Slater, where do you reside? — ^A. At Sunfield.
Q. What is your age? — A. I am 70 years old.
Q. How long have you resided in Sunfield? — ^A. About 8 years.
Q. Did yoQ hold any oflicial position in connection with the general election
that was held in the township of Sunfield on the 5th day of November last? —
A. I was gatekeeper.
Q. Which gate did you have charge of? — A. The outer gate, where they came
out
Q. Where they came out? — A. Yes, sir.
Q. Who kept the other gate — A. I think Mr. Gilbert: I think so; I am not
Tery positive about that.
Q. Charlie Gilbert?— A. Charlie Gilbert.
Q. Did you ever act in the capacity of gatekeeper at any other election?
Mr. Adamb. Objected to as incompetent, Irrelevant, and immaterial.
A. Yes, sir.
Q. More than once? — ^A. Yes, sir: I have acted more than once.
Q. Were you there when the iwlls opened on the 5th day of November last? —
A. Yes, sir.
Q. Were you there when they adjourned for dinner? — A. Yes, sir.
Q. What did you see them do when they got ready to go to dinner? — A. We
closed the polls for one hour for dinner. I being right across the road, they
wanted to know if I wouldn't stay and take care of things while they went to
dinner, and they would come back as soon as they could ; so I did.
Q. Did you do that?— A. Yes, sir; I did that
Q. Did you have charge of the polling place while they were at dinner — A. I
did for a time.
Q. Who took your place? — A. Mr. Knapp.
Q. After they left, did you remain in the polling place until Mr. Knapp
came?— A. I did.
Q. State whether or not anyone went into that polling place during tlic
time the board were to dinner while you were there. — A. No, sir : no one entered
at all.
Q. I>o you know wliether or not imyone touched the ballot box or books or
anything in connection with the election while you were In charge, while they
were out? — ^A. I know they did not, because there wns no one in.
Q. Did you'meddle with them yourself or touch them or handle the books at
an while they were out? — A. No, sir; everything was just as it was when they
got back.
Q. How long did you remain there that day?— A. I think probably after Mr.
Knapp came back in half an hour ; probably I stayed there half an hour.
Q. DUl you go to dinner then? — A. Y"es, sir.
Q. Did Vou get back before the iwlls oi)ened?— A. Yes, sir.
Q. W'ere you there when the polls oi)ened, at 1 oVlock — A. Yes, sir.
Q. How long did you remain in charge of that gate? — A. I'ntll the iiolls
dosed, and a while after that.
Q. At 5 o'clock?— A. Yes. sir; about that time.
Q. You were not there when they stopped counting at night? — A. No. sir;
I didn't stay as late, as that.
Cross-examination by >Ir. Adams :
Q. You are a little hard of hearing?— A. A little bit : yes, sir.
Q. You were a little bit hni-d of hearing along about the 5th of November?—
A. I have been for some time.
Q. You were at that time?— A. Yes, sir.
236 CAKNEY VS. SMITH.
Q. And had been for some time before that? — A. Yes, sir.
Q. They didn't lock the door when they went out at noon to get their lunch,
did they?— A. No, sir.
Q. This room in which the election was held was quite a large room? — ^A.
Well, reasonably large; yes, sir.
Q. How long is that room, or was It. rather, on the 5th of November, where
they took the votes, the whole room? — A. It was a room something as large
as this.
Q. Was it a storeroom? — A. No, sir; it was partitioned off. There was a
place In the front end where they voted: it was not more than from here to
that door.
Q. How big was the whole room? — A. It was quite a large room.
Q. How big, how long, and how wide? Give your best Judgment how long
and how wide? — ^A. I couldn't tell you.
Q. Whether 50, 80, or 100 feet?— A. No. sir: not as long as that; maybe 35
feet.
Q. How wide? — ^A. I think it is not as wide as long; about 25 or 35; some-
where along there.
Q. A couple of doors opened into that room? — ^A. Yes, sir.
Q. A front one and a back one? — A. The back one was closed, the front ones
were open. At the east there is a little door where they go through to vote.
Q. Did they have any fire apparatus in this room where the election was
held? — A. No, sir; It was on the other side: that was on the other side where
they voted, from there.
Q. Was the fire apparatus on election day in a separate room from where
the election was held? — ^A. Yes, sir.
Q. In a separate room or the same room? — A. In a separate room; it was
railed off, that Is all.
Q. Did you go out of the room after the men went out — the Insiiectors of
that election went out for their lunch — up to the time Mr. Knapp came back
at noon? — A. No, sir; I did not.
Q. You were In there every minute? — ^A. Yes, sir.
Q. Sitting down? — A. I was sitting down sometimes and sometimes stood
up looking to see whether Mr. Knapp was coming; I was getting kind of
hungry.
Q. How was your sight? — A. I managed to read that night with my glasses;
I couldn't see very awful good with them off.
Q. Your eyesight was not very good on the 5th of November. 1912? — A. No,
sir: it was not — not what I would call first class.
Q. You were gatekeeper where the voters went out? — ^A- Yes. sir.
Q. After they had voted? — A. Yes, sir.
Q. What time did you leave there that day after the voting was stopped
about 5 o'clock that day; how soon after that? — ^A. Well, now. I couldn't say
exactly, but I presume somewhere about 9 o'clock.
Q. Didn't you go to supper that night? — A. I don't think I did, and I don*t
know but I did, too.
Q. You did, didn't you? — ^A. I went to supiier: yes, sir. I stayed there a
while, and they thought there was no good In me staying there any longer,
and they said I might as well go home if I wanted to, and I went.
Q. How long were you gone to supper that day? — ^A. It didn't take me very
long.
Q. You were kind of hungry? — A. Not as hungry as I was at noon.
Q. Were you gone an hour? — A. No. sir.
Q. Five minutes? — A. Oh, I was gone probably 10 minutes.
Q. How far did you have to go to supper? — A. A little farther than from
here up street, almost across the street.
Q. Did you go home to your supi)er? — A. Yes, sir.
Q. You live right across the street? — A. Y^es, sir: a little bit north.
Q. You think you were gone home to your supi)er about 10 minutes? — A.
Yes, sir.
Q. From the time you left the voting place to eat your supper and aime back
there, you were gone about 10 minutes? — A. Something like that.
Q. You didn't bring your supi)er? — ^A. No. sir: I was not gone a great while
anyway.
Q Did the board go out to supper that night — the election board — any of
them? — A. I think they did, we kind of paired off: they felt hungry I pre-
sume, too.
CABNEY VS. SMITH. 237
Q. They closed the voting plnce there when they went out to supper? — ^A.
Xo, sir.
Q. You say they did not?— A. 1 don't think It.
Q. You are not sure about that? — A. I know they didn't; they went right to
work counting the vote.
Q. They didn't quit counting nnd go out and get some supper and come back
and begin counting again? — A. I don't mean they all went out at once; they
went out one at a time, I think, and got something to eat, and some of them,
I think, bad It brought to them.
Q. Yon went away about 9 o'clock and didn't come back that night any
more?— A. Xo, sir.
Q. You didn't go back the next morning? — ^A. No, sir.
Q. When did you next come back to that same room after you left there
about 9 o'clock on the 5th ? — A. I had no business, so I didn't go there.
D. W. KNAPP, being first sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee, as follows:
Direct examination by Mr. Maynabd :
Q. Mr. Knapp, where do you reside? — A. Sunfield.
Q. What is your age? — ^A. I am 56.
Q. Your occupation? — ^A. Well, I work In a barber shop.
Q. Were you present at the election held In the township of Sunfield on
November 5th. 1912?— A. Yes, sir.
Q. Did you occupy any official position at that election? — ^A. I was clerk of
the election.
Q. W^hen were you appointed, the morning of the election? — A. Yes, sir.
Q. Did you take the oath of ofiice of clerk of the election in the morning? —
A. Yes» sir.
Q. Were you there when the polls oi)eued? — A. Yes, sir.
Q. How long did you remain? — ^A. I remained there until time to adjourn
for dinner.
Q. What steps did you take to adjourn for dinner? — A. We made the regular
announcement for hour, half hour, and quarter of an hour.
Q. When did they do that? — A. As soon as we adjourned and weut to dinner.
Q. What did they do with the books? — A. They were on the table.
Q. And the ballots? — A. They were locked up.
Q. Where? — A. They w^ere on the table: the box set on the table.
Q. You mean the ballot box? — ^A. Yes, sir.
Q. When did you lock the box up. In the morning? — A. When they com-
menced voting and It was not meddled with again until opened^
Q. Did you lock It up when you adjourned for dinner? — ^A. It remained
locked.
Q. You left everything on the table. Just as It was? — ^A. Yes, sir.
Q. Who did you leave It In charge of? — A. Mr. Slater.
Q. The last witness, Z. D. Slater?— A. Yes, sir.
Q. Did you go to dinner? — ^A. Yes, sir.
Q. Where?— A. At home.
Q. When did you return? — ^A. In about twenty minutes.
Q. Who did you find In charge of the place? — A. Mr. Slater.
Q. Did you take his place? — A. Yes, sir.
Q. Did you remain In charge of the polling place then until the boaixl
returned?— A. Yes, sir.
Mr. Adams. I object to that as exceedingly leading and counsel seems to be
doing that right along.
Q. Was there anybody else In charge of that while the board was gone but
yourself ?— A. No, sir.
Q. After you went there did anybody approach the polling place but your>
s^f ?— A. I was not Inside of It ; no one was Inside of It.
Q. Do you know whether anybody was inside of it? — A. I know there was
not.
Q. Did anybody meddle or tamx)er with the ballot boxes or touch them after
you got there until the board came? — A. No, sir.
Q. When did they open the polls again? — ^A. At 1 o'clock.
Q. How long did they continue? — ^A. Until 5 o'clock.
Q. What, if any, proclamation was made respecting the closing of the polls? —
A. At 4 o'clock the first proclamation was made.
238 CABNSY VS. SMITH.
Q. Then when?— A. 4^. then 4.45, and 5 o'clock.
Q. Did they open the polls again of that election after they closed them at
5 o'clock? — ^A. No, sir.
Q. What did they do at 5 o'clock?— A. They commenced counting the
ballots.
Q. Who were present when they first opened the ballots to count the ballots
at 5?— A. Mr. Hager, Mr. Bacon, Mr. Palmer, Mr. Mapea, and mysdf.
Q. Who was Mr. Ma pes? — A. He was the township clerk.
Q. When they commenced to count the ballots what did they first coiint? —
A. They counted the ballots up to see if they corresponded with the poll list.
Q. Did they correspond? — A. Yes, sir.
Q. Did you compare your poll books to see whether they agreed? — ^A. Yee, sir.
Q. Then what did you do? — A. Then we went on and counted the ballots and
Mr. Mapes and I stayed there until they had them done.
Q. What did they count first? — ^A. They counted them out in straights.
Q. The straights of each party? — ^A, Yes, sir.
Q. I show you Exhibits 3. 4, 13, and 24, and ask you if yon recognise those
books, know what they are ; have you ever seen them before? — A. Yes, sir ; I do.
Q. What are they — the books that were kept there at that election? — ^A. Yes,
sir.
Q. After they had the straights counted up. what did they then do? — ^A. They
commenced to read off the split tickets.
Q. Who did the reading?— A. They were read off by Mr. Hager and some by
Mr. Bacon and some by Mr. Palmer.
Q. What did you doV— A. I jiiat simply made a tally mark in the statemwit
book; when they onlle<l off a man's name I made a mark.
Q. A straight tally?— A. Yes, sir.
Q. What did the other clerk do? — A. He did the same thing.
Q. Did you keep any checking with each other to see whether yotir tnllies
were straight as you went along? — ^A. Yes, sir; we did.
Q. In what way V— A. Well, as a name was read, it would be. If I had 2 votes.
I would say " 2 '* and the other clerk " 2," and the next time that came I would
say " 3 ** and the otlier clerk would say " 3."
Q. Did you keep the count audibly, so they could hear? — ^A. Yes, sir.
Q. As you went along? — A. Yes. sir.
Q. That was done all the way through? — ^A. Yes. sir.
Q. How long did you i*emaln there assisting in this count? — ^A. I remained
there until we closed at midnight.
Q. Did you go back after that? — A. Yes, sir.
Q. Who was there when you went back? — A. I was the first one at the door
and unlocked it, and Mr. Hager and Mr. Bacon was right there.
Q. Did they go In with you? — A. Yes, sir.
Q. Did yon find the polling place as you had left it, or had there been any
alterations? — A. It was just as we left it.
Q. When you got back, what did you go to doing? — A. Mr. Baeon and Mr.
Hager went to reading the split tickets and Mr. Mapes and I went to tallying
them as read to us.
Q. How long did you stay there at that time? — A. I stayed there until 5.30
or 5 o'clock — somewhere about that — In the morning.
Q. Did you stay there until it was concluded? — ^A. Yes, sir.
Q. When you got the votes read and tallied, what was done? — ^A. The result
was read off.
Q. Who read it?— A. I did myself.
Q. At whose command? — A. At the command of the board.
Q. Did you read the result as to every officer that was voted for? — ^A. Yea, sir.
Q. That had any votes counted for? — A. I read the result of the election
right straight through.
Q. Now, witness^ what have you to say as to the correctnem with which you
kept the tally? — ^A. Why, I kept the tally Inst as straight as I ever kept any
tally.
Q. Did you keep it straight as they read it to you? — ^A. Yes, sir.
Q. When you left about midnight, or at that late hour in the night or on the
morning of the 6th of November last, what disposition did you make of the bal-
lots that had been cast and counted and those that were not counted?— A. They
were put in a ballot box and locked up.
Q. How were those that had not been counted put in the ballot box?— A.
They were rolled up by themselves, and those that were counted were laid out
fiat.
CABNBY VS. SMITH. 239
Q. Those that had not been counted were rolled up? — ^A. Yes, str.
Q. And tied up? — ^A, Yes, sir.
Q. Do you know whether or not there was a correct count made of the ballots
cast there at that election? — ^A. I considered it so.
Q, Do you know whether or not there was a correct tally kept or not? — ^A.
I think it was.
Q. After the result of the election had been declared, what did the board
do? — ^A. It adjourned for breakfast.
Q. Do you know who prepared those exhibits that have Just been shown
you or those election books used on that day? — ^A. I prepared part of them
and part of them Mr. Mapes prepared.
Q. When did you commence to prepare those books and get them in shape
to be signed? — ^A. Just as soon as we were sworn in.
Q. On the morning of the 5th? — ^A. Yes, sir.
Q. Did you continue that work from time to time throughout that day? — ^A.
Yes, sir.
Q. When did you complete them? — A. On the morning of the 6th.
Q. After you knew the result of the election^ did you complete these things
there or take them with you and complete them at some other place? — ^A. We
took them to Mr. Bacon's office.
Q. Was he a Justice of the peace? — ^A. Yes, sir.
Q. What were his politics? — ^A. He was a Democrat.
Q. Is Mr. Bacon now living? — ^A. No, sir; he is dead.
Q. Who did you see at Bacon's office when you went there to finish up
the books? — ^A. Mr. Hager, Mr. Palmer, Mr. Bacon, and myself.
Q. Did you set any figures down in the tally sheet that night before — after
the count was completed, before you went to Mr. Bacon's office, so as to know
the amount that each gentleman was credited with? — ^A. Yes, sir; they were
all set down.
Q. The figures?— A. Yes, sir.
Q. Now, witness, take this Exhibit ''4"; is that in your handwriting those
figures and tallies? — ^A. Yes, sir; it Is.
Q. This tally book, taking the office of Representative in Congress on page
12, of Exhibit "4," after the words ** Representative In Congress," what four
names do you see as candidates named for that ojffice? — A. John M. C. Smith,
Claude S. Carney, Levant L. Rogers, and Edward N. Dingley.
Q. What tallies do you find opposite John M. C. Smith's name? — ^A. On«
hundred and seventy-four.
Q. That is the total?— A. Yes, sir; that is the total.
Q. What were the straights? — ^A. One hundred and twelve.
Q. What are the splits?— A. Sixty-two.
Q. The total Is ascertained by adding those two together? — ^A. Yes, sir.
Q. Are there any tallies opposite his name there; any figures or tallies,
straight marks? — ^A. Yes, sir.
Q. How many tallies are there there? — ^A. Sixty-two.
Q. There is where you obtain the figures 62?— A. Yes, sir:
Q. Were those set down there that morning before you left the polling place,
before you went to Mr. Bacon's? — ^A. Yes, sir.
Q. Just as that book Is now? — ^A. Yes, sir.
Q. What you did after you went to Mr Bacon's office was to sign up those
certificates? — ^A. Yes, sir.
Q. In each place? — ^A. In each place.
Q. Did anybody at that place at any time while you were there tally this
vote? — ^A. William WItherall took my place a few minutes.
Q. When was that? — ^A. In the evening.
Q. About what time? — A. I think between 9 and 10 o'clock.
Q. How long was he In yotrr place?— A. Not over 10 minutes.
Q. Do you know how many tallies he tallied while you were gone? — A. I
do not
Q. Is that the only time you left the job? — A. That is the only time I was
away from the place.
Q. Do you know of anyone else tallying there besides yourself and Mr. Wither-
all? — A. Yes, sir; Mr. Bera.
Q. What time in the day did he tally?— A. J. H. Bera? Just a little bit be-
fore we closed ; perhaps half an hour.
Q. Early in the morning of the 6th? — A. Yes, sir
Q. Just before you <init tallying?— A. Yes, sir.
240 CAKNEY VS. SMITH.
Q. Who was keei)iiig the tally while he was tallying? Who else? — A. I was
there.
Q. He didn't get hold of your book, did heV— A. I don't think he did.
Q. I>o you know whether that tally after he came there was correct or not
after Mr. Bera came In ; do you know that tally was correct as it was read to
you after Mr. Bera took the place? — A. I don't know whether — I didn't notice—
I might say yes.
Q. He didn't take your book? — A. No, sir.
Q. Had you seen Mr. Bera about the polling place anytime before that day? —
A. No, sir : only when he came to vote.
Q. You know Mr. Sayer, I suppose? — A. Yes, sir; Albert Sayer.
Q. What are his politics? — ^A. Democrat
Q. What were Mr. Wltliernll's iK)litlcs?— A. Well, Mr. Wltherall now, I sup-
pose, is a Republican. He has always been a Democrat.
Q. You mean he was enrolled ns a Republican at that time? — ^A. Yes, sir.
Q. Mr. Knapi>, what have you to say ns to whether you gave Mr. Carney credit
for all the votes that wore read off to you as belonging to him at that election?—
A. I gave him every vote that was called for Mr. Carney he got
Q. Did John M. C. Smith get any votes that were not called for him?— A.
No, sir.
Mr. Adams. I ol»Jec»t and move to strike out the answer as incompetent. I
don't see how th!.»< witness can tell whether he did. ex(H»i»t as far as he kept the
tally.
Q. I will apk you whether you gave John Af. C. Smith credit for any votes
that were not read off as belonging to him at that election? — A. No, sir.
Cross-examination by Mr. Adams :
Q. So the adjournment that you took you said it was about midnight, about
1 o'clock you took that adjournment? — A. Somewhere about that.
Q. On the (5th of November? — \. Somewhere there.
Q. What hour did you adjourn to? — A. We didn't adjourn to any hour.
Q. You did not adjourn that election at 1 o'clock on the morning of the Gth
to any hour without any designation of the hour, did you? — ^A. We simply ad-
journed until morning, then we found out we had to go to work and we went
back to work again in about 30 minutes.
Q. When you tcK>k that adjournment about 12 or 1 o'clock on the morning of
November 0, 1912, to what hour did they adjourn that election to? — A. Well, sir,
they adjourned until morning.
Q. No hour fixed? — A. No definite hour fixed that I remember.
Q. There was no nnnouncenient made that this board now adjourns until 6
o'clock in the morning or 7 o'clock In the morning or 8 o'clock in the morning
or any other particular hour, was there? — A. I don't know whether there was
or not.
Q. You don't know? — ^A. I don't know.
Q. You were right there? — ^A. Yes, sir.
Q. Do you mean to be understood utK>n this record that you can't tell to
what hour, If to any hour, that board adjourned when it adjourned about 1
o'clock on the morning of November G? — A. It might have adjurned to some
hour.
Q. It might have done a lot of things, what did it do? — A. I don't know what
hour we adjourned to.
Q. It didn't adjouni to any hour, but until morning? — A. That is the way
I understood it
Q. You heard the adjournment made? — ^A. Yes, sir.
Q. Who made It; was It said, *'This board now adjourns until morning?'' — A.
I think not.
Q. What was said? — ^A, I couldn't tell you what was said.
Q. Give us your best recollection of what was said? What did Mr. Palmer
say? — A. He was tired out — Mr. Palmer said he was tired out; he said he was
tired out, Mr. Palmer did.
Q. What else did he say? — A. He thought we might as well adjourn until
morning, that is the way I understood it.
Q. Was that all that was said about the adjournment? — ^A. I think so.
Q. On that announcement that Mr. Palmer made, that you have now testi-
fied to, the board adjourned? — ^A. I think they did.
Q. No other announcement was made? — A. Not that I know of.
Q. You were there until the board of insi)ectors left, were you? — ^A. Yes, sir.
Q. And went out with them? — A. Yes, sir.
OABKEY VS. SMITH. 241
Q. So if any other adjournment was made, you were in a position to bear it? —
A. I presume I would ; yes, sir.
Q. Now you stated that Mr. Bera was there in the morning about half an
hour?— A. Somewhere about that.
Q. What time in the morning did he come there? — A. I couldn't tell you ex*
actly to a minute : it might haire been a few minutes before or after 12 o'clock.
Q. And he remained there how long? — ^A. Until the votes were all counted
but two, I think.
Q. How long was that after Mr. Bera got there? — A. I couldn't tell you, quite
a few Totes to count after Mr. Bera got in there, probably 10 or 12, somewhere
along there.
Q. How many votes would you say Mr. Bera helped count? — ^A. I couldn't
tell you.
Q. Whose book did he keep tally on, if anybody's book? — ^A. On Mr. Mapes.
Q. When Mr. Bara kept tally of Mr. Mapes's book, Mr. Mapes was not there? —
A. No, sir.
Q. He had gone out of the x^lace wheie you were holding the election? — ^A,
Yes, sir.
Q. Mr. Bera at that time was a Rexmblican? — ^A. Yes, sir.
Q. And was at that time postmaster at Sunfield? — ^A. Yes, sir.
Q. And had been postmaster there for 8 or 10 or 12 years? — ^A. Somewhere
along there.
Q. Were you there when Mr. Bera was there? — ^A. Yes, sir.
Q. AH the time?— A. Yes, sir.
Q. Mr. Witherall took your place? — A. Mr. Witherall took my place the fore
part of the evening.
Q. What time in the evening was it he took your place? — A. Between 9 and
10 o'clock.
Q. Yon were gone about how long? — A. Not over 10 minutes.
Q. Now Mr. Witherall was a Republican November 5? — ^A. Yes, sir; he was
registered as a Republican in the primary poll book.
Q. And was so registered immediately before that election on November 5? —
A. Yes, sir.
Q. Mr. Witherall tallied some?— A. Yes, sir.
Q. Of your own knowledge, you don't know whether Mr. Wltherall's tallies
were correct or not? — ^A. I don't know anything about that
Q. You couldn't know that? — A. No, sir.
Q. You said your figures were set down in the book before you left? — ^A. Yes,
dr.
Q. In the tally book? — A. Yes^ sir; they were set down, and I read them off,
and Mr. Hager copied them Just as I read them ofT.
Q. We are talking about these election returns, not what Mr. Hager or any-
body else may have done. — ^A. No, sir.
Q. When you said the figures were put down, you mean in the tally book? —
A. Yes, sir.
Q. That is all you referred to? — ^A. Yes, sir.
Q. The statement book was filled up the next morning? — ^A. Yes, sir.
Q. Over at Bacon's ofllce? — ^A. Yes, sir.
Q- So that all you filled out that night was the tally book? — ^A. Yes, sir.
Q. When you got over to Bacon's office on the morning of the 6th Mr. Mapes
WEB not there?— A. No, sir.
Q. Who brought the books over to Mr. Bacon's office? — ^A. I took them over
myself.
Q. Where did you get them? — ^A. I took them from the polling place and de-
livered them to Mr. Bacon's office and locked the office up.
Q. When? — ^A. That morning after we quit at the polling place.
Q. When you left the voting place on the morning of November 6, 1912, you
took all the election books, did you?— A. Yes, sir.
Q. All that had been used there on election day to Mr. Bacon's office? — A.
Yes, sir ; and locked the office up.
Q. And put them in Mr. Bacon's office? — ^A. Yes, sir.
Q. Did you lock the office?— A. Yes, sir.
Q. How did you happen to have the key?— A. Mr. Bacon gave me the k^ and
told me to put them in there.
Q. You took them in there and locked the door? — ^A. Yes, sir.
Q. And left them on a table, there perhaps in the office?- A. Yes, sir.
Q. And took the key? — A. Yes, sir; with me, and went to breakfast
286—13 ^16
342 CABNEY VS. SMITH.
Q. Then when you got back who was in the office?— A. Nobody until I un-
locked it
Q. You unlocked the door, did you, when you went back to Mr. Bacon*s office
again? — A. I went back down after breakfast, and Mr. Hager was there, and
Mr. Hager and Mr. Bacon, and I went over and all went In together.
Q. The ballot boxes were not at Mr. Bacon's office at nny time up to the time
you made these returns? — A. No, sir.
Q. The ballot boxes were left where the election was held? — A. Yes, sir.
Q. They were not sealed when you left the voting place in the town hall on
the morning of November 6, after you finished your tally? — A. Yes. sir; Mr.
Hager put a seal on them.
Q. What kind of a seal did he jiut on them? — A. Ho had red sealing wax and
melted It on there over the hole or slot in the top and a cloth i)ut over and he
took and run the sealing wax, melte<i it ou there and put the township seal
on it.
Q. On the ballot box? — A. Yes. sir: and you ran find it now.
Q. He put the seal ou it on the slot through which the ballots could be
put? — A. Yes, sir.
Q. Is that the Mr. Hager which testified here to-day? — A. Yes, sir.
Q. You testified, did you. that when you and the inspectors left the town hall,
after you finished counting on the morning of the 6th of November, thiit
Mr. Hager, one of the in8i)ectors.at that election, put a strip of cloth over the
slot in the ballot box and put sealing wax on it. did you? — A, I think I did.
Q. Are you sure? — A. I know it was sealed up.
Q. You testified tliut Mr. Hager iiut some cloth or something, some fabric
over the slot in the ballot box and put sealing wax on it before you left there,
did you or did you not? — .\. I think I dU\.
Q. Are you sure about that? — A. I am quite i>ositive of it.
Q. You swear on your t>ath he did. do you? — A. I think he did.
Q. Do you mean to be under8t<iod as swearing i)ositively here under oath
that Mr. Hager did that very thing, that morning, do you? — A. Yes, sir.
Q. You saw him do it? — A. I saw him working at it.
Q. You saw Mr. Hjiger put some cloth over the slot in the ballot box there
that y<»u used on the 5th of November, and put sealing wax on that, do
you? — A. I supiHKse he finished the job, I saw him doing it.
Q. That is as strong as you want to put it? — A. I think that Is stroui?
enough.
Q. That Is as .strong as you want to put it? — A. I know nobody meddled
with the box.
Mr. Adams. 1 didn't ask you that, and I move that the answer be stricken out.
Mr. Maynard. We object to it l>eiug stricken out.
Q. You swear that you saw Mr. Hager. after you got through with the count
at the town ball where you held that election, put some cloth on the ballot box
over the slot into that ballot box and put sealing wax on there and sealed it
np» do you? — A. I saw him to work at it and I suppose he finished his job.
Q. You saw him using sealing wax on the ballot box to secure the cloth over
fbe slot? — ^A. I saw him working at it and I suppose he finished it.
Q. That is the same Hager who testified in your presence to-day?— A. Yes, sir.
Q. These ballot boxes in which the votes for Representative in Congress
w*'i*e deposited tliere on tliat day, were round boxes? — A. No, sir.
Q. What kind of boxes were they? — A. Square boxes, a little longer tlian
wide.
Q. Y'ou didn't use any round boxes?— A. No. sir.
Q. Where did Mr. Hager get tlie fabric you say he used tJiere in sealing
that ballot box? — A. Tlie fabric was on the box.
Q. Who had the key to the !)anot box?— A. I had the key to it.
Q. You were clerk that day? — A. Yes, sir.
Q. You were not the township clerk? — A. No, sir.
Q. You and not the insiK^ctors had the key to the ballot box that contained
the votes for candidates for Kepreseniative in Congress, at that election?— A.
Yes, sir.
Q. And nobody else had a key but you that you know of ?— A. No. sir.
Q. YoH kept tiie key. did you. all the time during that election?— A. Yes. sir.
Q. Have you got it now*/ — A. No, sir.
Q. Who did you give it to?~A. To the supervisor.
Q. Wlien did you give it to him first after you got through with that elec-
tion?—A. After we got through with the election.
CABNEY VS. SMITH. 243
Q. When, after you got through with that election at Mr. Bacon's office, the .
moi-ning of the 6th, did you first give ihat key to the ballot box, containing
the votes for candidates for Congress, to him?— A. On the morning of the 6th,
when we closed up.
Q. At Mr. Bacon's office?— A. Yes, sir.
Q. Where did you get the key of that ballot box?— A. Well, sir, It was handed,
to ine that morning when I went in by Mr. Palmer.
Q. Was the ballot box locked when the key was handed to you?— A. Yes, sir.
Q. You went right on with your election then and left it locked, after the key
was handed to you, and deposited the ballots in it?— A. After the board was
organized. Mr. Palmer told me to get the ballot box and prepare it, and I un-
ioeked the ballot box and took the ballots tliat stuck out of it and put them in
the stove and burned them up and held the box up tliat the inspectors could
see it was empty ; then I locked it — locked the box up — and he told me to keep
the kev
Q. Did you lock it?— A. Yes, sir.
Q. You say, Mr. Knapp, that when you got through, at 5 o'clock in the morn-
ing at the town hall, counting the vote, that you read off the names of the candi-
dates and the votes for each one that your poll book slioweti each one got? — A.
Yes, sir.
Q. That you put down? — A. Yes. sir.
Q. Or that were, rather, on your tally book? — A. That was on my tally book.
Q. You read thQfle off aloucj? — ^A. Yes, sir.
Q. You went out to supper? — A. No, sir; I did not.
Q. Where did you get your supper? — A. I ordered my supper in and stayed
right there,
Q. You went out to dinner? — A. Yes, sir; I went out to dinner.
Q. Were you out at any other time except that time you were out when Mr.
Witherall took your place, quly when at dinner? — ^A. That is the only time.
Q. You took your adjournment about 1 o'clock in the morning of the 6th? — A.
Somewhere thereabouts.
Q. Afld you came back there and opened up and went to counting about 2
o'clock? — A. No, sir; I don't think it was 2 o'clock; I don't think we were gone
from the hall over 30 minutes.
Q. How do you fix that time?- A. I don't know anything about that.
Q. That Is Just an estimate? — A, Yes, sir; Just long enough to walk to my
place and eat a lunch and walk back two blocks.
Q. How did you get word to go back; who gave you any word? — A. Mr. Ilager
let me know.
Q. Did he come to your house? — A. He telephoned me.
Q. Were you through with your 8Up{)er when .vou got the -telephone? — A. I
was just getting up from the table when the telephone rang, and he says, *' We
will have to go to work."
Q. Did you go right back or not? — A. I went right straight back.
Q. W^ere the others there when you got there? — A. The others were coming; T
saw them and I waited until they got close and 1 unlocked the door and we all
went in together.
Q. Did they all go in at the same time? — A. Practically so; we all went in
together.
Q. Was Mr. Mapes there?— A. Yes, sir.
Q. Was Mr. Bacon right there? — A. Yes, sir.
Q. And Mr. Hager? — A. Yes, sir.
Q. All got right there coming from different parts practically at the same
time? — A. Yes. sir.
JOEL H. BERA, being first sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestee as follows:
Direct examination by Mr. Maynard:
Q. Where do you reside? — A. Sunfleld.
Q. How long have you lived there? — A. Twenty-five years, about.
Q. What is your age? — A. 1 hate to tell that— I am 60.
Q. Mr. Bera, what Is your occupation? — ^A. I am In the furniture and under-
taking business at Sunfield.
Q. What official position do you hold? — A. I am i)ostmaster.
Q. How long have you been postmaster there? — A. About 13 years.
Q. Have you ever held any township offices? — A. Yes, sir.
244 CABNEY VS. SMITH.
. Q. What? — ^A. Clerks supervisor, and treasurer; almost all the offices they
could give me.
Q. In the township?— A. Yes, sir.
Q. Did you hold any township office on the 6th of November last? — A. No, sir.
Q. Were you deputy township clerk? — A. Yes, sir.
Q. That would be a township office — ^A. Would it?
Q. How long did you hold the office of deputy township clerk? — ^A. Just this
year.
Q. This year, 1912?— A. Yes, sir.
Q. Who was the township clerk? — ^A. My son-in-law.
Q. What is his name? — ^A. Mapes.
Q. Mr. Bera, did you vote at the election held in the township of Sunfield
November 5, 1912?— A. I did.
Q. About what time of day did you vote? — ^A. I think wh«i I went to my
dinner or came from my dinner.
Q. Were you about the polls at any time during that day? — ^A. I don't think
I was ; I don't remember that I was.
Q. Did you return the next morning before daylight? — A. I did.
Q. About what time? — ^A. About 5 o'clock, I think.
Q. How did you happen to go there at that hour? — ^A. I was there; I got up
to take care of the body of a man who was killed with the evening train.
Q. And on the way from your visit did you stop at the polls? — A. Yes» sir.
Q. Did you take any part about the work at the polls titiat morning when you
stopped? — ^A, Yes, sir.
Q. What did you do?— A. I tallied f6r the clerk.
Q. Why did you do that? — ^A. He appeared to be fatigued and I asked him to
let me and let him rest a few minutes.
Q. Did he leave the polls?— A. I think he did.
Q. How many votes did you tally after you sat down? — ^A. I think about 10
or 12.
Q. Any more than that? — ^A. I wouldn't say so.
Q. Who was reading the ballots when you were tallying? — A, Mr. Hager.
Q. Did he read all the time as long as you were there? — ^A. I think he did ;
yes, sir.
Q. Was there anyone else tallying besides yourself? — ^A. Will Knapp.
Q. Had you ever worked at that business before; tallied at an Section? —
A. I have.
Q. ^ter you sat down there and began to tally, did you keep a correct
tally as It was read off to you ? — ^A. I did.
Q. Were yon there when they completed the count? — ^A. I waa
Q. What did you hear about it? — A. Immediately after they completed the
count
Q. Did you hear any declaration there? — A. I heard Mr. Knapp read the
result before leaving.
Q. Did you compare the tally sheet you kept with the one he had? — ^A. We
did as we tallied.
Q. Did you tally the same as he did; after you arrived, did your tallies
agree? — ^A- They did.
Q. Did you stay there while they arranged the polling place? — ^A. I did not.
Q. Did you see them lock the ballot boxes?— A. No, sir; I left before that
was done.
Q. Did you at any time about the polls that day do any electioneering for
the election of John M. C. Smith as Member of Congress?
Mr. Adams. I object to it as incompetent, irrelevant, immaterial, and hearsay.
Mr. Maynard. You charge in your notice that he did.
Mr. Adams. That has nothing to do with the charge made In the petition.
Q. Did you at any time about those polls on that day do any electioneering
for the election of John M. C. Smith as Member of Congress?— A. I did not
Cross-examination by Mr. Adams :
Q. Did you do any electioneering for John M. 0. Smith that day anywhere? —
A. I did not.
Q. You didn't try to get anybody to vote for John M. C. Smith at that elec-
tion on that election day? — ^A. I did not.
Q. You didn't talk with anybody on the 5th day of November, 1912, while
the voting was going on there at Sunfleld about voting for John M. C. Smith
for Congress? — ^A. I did not.
OABNEY VS. SMITH. 245
Q. Yon are sure about that, are you? — A. I am postmaster there; I know
better than to do that.
Q. Yon are sure about that? — A. Yea, sir; I am.
Q. You are interested In John M. C. Smith's election for Ck)ngres.s, were
you not, on the day of the election, November 5, 1912?— A. I voted for Mr.
Smith each time he was up for Congress.
Q. You were interested in John M. C. Smith's election at that election,
November 5, 1912, were you not? — ^A. So far as I have answered you.
Q. I would like to have an answer to this question: You were Interested
in John M. C. Smith's election at that election, November 5, 1912, were you
not? — ^A. I have answered the question; as far as my vote was concerned.
Q. Beyond that you were not? — A. I was not.
Q. Had you done anything in John M. 0. Smith's behalf, in behalf of his
candidacy as a candidate for the office of Representative In Congress during
the campaign just prior to the November 6, 1912, election?— A. I don't know
that I even winked at a man.
Q. Did you do anjrthing in his behalf during that time? — A. I think nothing.
Q. You were in the voting place there November 5, 1912, when they got
through with the count about 5 o'clock on the morning of November 0? —
A. Yes, sir.
Q. Was Mr. Palmer there then? — ^A. He came in Just before they were fin-
ishing.
Q. How many votes were counted after Mr. Palmer got back there? — ^A. I
think 1.
Q. That was all there was to count? — A. I think it was.
Q. All the rest of them, as you understood it, were counted? — A. Yes, sir; as
I remember it
Q. Yon said you tallied 10 or 12 votes? — ^A. Yes, sir.
Q. That is your recollection of the votes you tallied at that election? — A.
Yes, sir.
Q. You say you heard Mr. Knapp read the result? — A. Yes, sir.
Q. How long did It take him to read the result of that election? — ^A. Not
very long.
Q. About how long? — A. I would not pretend to estimate how many minutes;
not many.
Q. Ten?— A. Perhaps.
Q. You didn't know that the polls were open when you dropped in there on
that morning of the 6th? — A. Well, not until I had got back there.
Q. You understood that it was closed about 1 o'clock in the morning? — ^A. No.
Q. Were you there when the polls closed at 1 o'clock in the morning of No-
vember 6— were you in the voting place? — A. I think I did; I think I did go
back there about the time they were closing.
Q. Did you stay there until they had closed about 1 o'clock? — ^A. I think not;
I think I passed by their home after this man was hurt ; I had been over there
and I think I stopped as I went home.
Q. Had they adjourned when you stopped as you went home? — ^A. I don't
think so.
Q. Did they adjourn before you went home? — A. I don't think so, if I recol-
lect right.
Q. You went to bed, I suppose, and was called up when this man was hurt? —
A. Yea, sir.
Q. Before you went to bed did you learn that the polls had closed until morn-
ing?— ^A. I don't recollect now; I will not swear.
Q. Mr. Mapes is your son-in-law? — ^A. Yes, sir.
Q. How long was he away from there after you began tallying ; did he come
back up to the time you left?— A. I couldn't say.
Q, What is your recollection whether he did or not? — A. I will not say
whether he did or did not
Q. You don't remember of seeing him there when the votes were being
counted? — ^A. I have no recollection either way.
Q. Up to the time you left, after yon began tallying? — ^A. I have no recollec-
tion about that.
Q. You were not sworn in there as any officer; any oath administered to
you? — ^A. No, sir; only as deputy clerk.
Q. That was the oath you had taken when? — ^A. Soon after his election.
Q. When was he elected?— A. At the spring election.
246 CARNEY VS. SMITH.
Q. You were not sworn in by anybody when you came into that voting place
that morning before you began tallying?— A. No, sir.
Q. The only oath you took was that of deputy township clerk?— A. Yes, sir.
Q. You didn't tnke any oath as clerk of that election, did you?— A. I did not.
Q. You are a Kepubllcan in politics? — ^A. Yes, sir.
Q. And always have been? — ^A. I agree with you.
Q. That is what kept you young? — A. Yes, sir.
Q. You have been quite a ijolitician over there in Suiifield?— A. No, sir.
Q. You have be<«n somewhat of a iiolltician, haven't you? — ^A. I like to get out.
Q. It is no disgrace for a man to be one. perhaps it is an honor and a dis-
tinction. Were you a politician in Sunfield?— A. When I was on the ticket I
always got out and hustled.
Q. I suiJpose you hustled for some other fellow on the ticket, didn't you?—
A. I might not do them any harm.
Q. You tried to do them some good, didn't you? — A. Yes, sir.
Q. Did you? — A. I couldn't sjiy.
Q. Did you work in their behalf? — A. I don't know as I have been very
much of a laborer along that line.
C}. You have been clerk, supervisor, and treasurer of the township of Sun-
field?— A. Yes, sir.
Q. I suppose when you were running for those offices you were quite intensely
Interested in politics, working for yourself and the other fellows on the ticket
running at the same time you ran, were you not? — A. That is quite a while ago.
Q. You didn't work for yourself alone and not for the other fellows on the
same ticket with you. did you? — A. I would rather, if there was to be anybody
left, I would rather it would be somebody else than me.
Q. Did you work for the other fellows, too?
(No, answer.)
Q. You were appointed deputy township clerk about what time? — ^A. Soon
after the town meeting after the election.
Q. In the month of April, 1912?— A. Yes, sir.
Redirect examination by Mr. MaynarD:
Q. Is your pose office a fourth-class office? — A. Yes, sir.
Q. How large a town is Sunfield?- A. 500.
Q. Do you know what the iwlitics of Mr. Witherall is, or was on the 5th
day of November last?
Mr. Adams. Objected to as inconii)etent. Irrelevant, and immaterial.
A. I had some talk with Mr. Witherall
Mr. Adams. I object to any talk that he bad with him.
Witness (continuing). Since
Mr. Adams. I object to his testifying to any talk with Mr. Witherall as
incompetent irrelevant, and immaterial, and hearsay.
A. Mr. Witherall assured me that he voted the Democratic ticket and for
Mr. Carney, with his own mouth.
Mr. Adams. I move that that go out as incompetent and hearsay.
Recross-exa mi nation by Mr. Adams :
Q. When did Mr. Witherall tell you that?— A. After the Sunfield count
commenced.
Q. Since November 6, 1912?--A. Yes, sir.
Q. Where did he tell you that? — ^A I think we were in my office.
Q. When — what day? — A. Well, now, I couldn't tell you that exactly,
Q. Can't you tell?— A. No, sir.
Q. You don't know? — A. No, sir.
Q. Who else was present? — A. I couldn't tell you.
Q. Was there anybody present? — A. I couldn't tell you.
Q. You don't remember whether anybody was present or not? — A. I think
so, but I am not positive.
Q. Who was iVi — A. I don't remember.
Q. Can you recollect who, if anybody, was present when this talk took
place? — ^A. No, sir.
Q. Where did you say that took place — at your place of business? — ^A. I
think it did.
Q. What place of business do you mean? — A. In my store.
Q. In Sunfield?— A. in Sunfield.
Q. What store do you mean? — A. In the furniture and undertaking buainflM.
OABNEV VS. SMITH. 247
Q. What part of your furniture and undertaking business did this conversa-
tion vfith Mr. Witherall take place?— A. In the store.
Q. What part of the store?— A. I couldn't tell you; I think it was In the
store.
Q. You don't know whether it took place in the store at all?— A. I haren't
sworn it did.
Q. You don't know whether it took place in the store at all, do you?— A. I
haven't sworn it did.
Q. Did it take place in the store?— A. I haven't sworn it did; neither will I
swear it did not.
Q. Did it take place in the store?— A, I think I hate answered It
Q. Have you answered it aU you want to or will?— A. Yes, sir.
Q. Might it have taken place outside of the store?- A. Yes, sir.
Q. Where, if outside of the store, did it take place?— A. I couldn't tell you.
Q. You don't know whether it took place in the store or outside, do you?— A
I do not.
Q. You don't know who was present if anybody?— A. No, sir.
Q. How did the conversation come up?— A. The fact of Mr. Carney contesting
the election with Mr. Smith or counting over in Sunfleld brought it up.
Q. What was the conversation that took place?— A. I can't very well tell you.
Q. Can't you recall what took place — what the conversation was between you
and Mr. Witherall ?— A. I can't any further than this: I said to him that I
thought Mr. Carney was out of place in contesting the election at Sunfleld, be-
cauge we had always attempted and tried to get the results as they actually
were, and he said, ** I agree with you," or words to that effect; then he said, " I
voted for him ; I never would again." Now, I hated to tell that here before Mr.
Carney, but that is the conversation, as near as I can tell it. •
Q. That is what Mr. Witherall said?— A. Yes, sir.
Q. You didn't like to have your election contested over there in Sunfleld?— A.
I never saw any really good ground for it
Mr. Adams. I move to strike out the answer as not responsive.
Q. You didn't like to have — you were opposed to Mr. Carney contesting the
election in Sunfleld. were you?— A. I couldn't see any ground for it.
Q. You were opposed to it?
Mr. Adams. I move to strike out the last answer as not responsive and is In-
competent, Irrelevant and Immaterial.
A. That is my answer to the question.
Q. You were opposed to Mr. Carney contesting the election in Sunfleld, were
you. and are now? — ^A. I have answered it
Q. That is the only way you will answer It?— A. Yes, sir.
■
DENNIS A. HA6ER. recalled for further cross-examnation by Mr. Adams,
testified as follows :
Q. This certiflcate, Mr. Hager, in Exhibit 3, was made out there at Mr.
Bacon's office on the morning of the 6th of November. 1912. That is the state-
ment book?— A. I think so; yes, sir.
Q. It was all written up over there — whatever writing there Is there? — ^A.
Unless it would be this In here [Indicating].
Q. This certiflcate here reads: " We do hereby certify that the foregoing is a
correct statement of the votes given in the township of Sunfleld, county of
^ton. State of Michigan, at the general election held on Tuesday, the 6th day
of November. A. D. 1912. In witness whereof we have hereunto set our handfl^
at the township of Sunfleld, in said county and State, this 5th day of November,
A. D. 1912." Now, was the word " township " and the word " Sunfleld " and
"Eaton" and the "5 of Nov." written in that certiflcate over there In Mr.
Bacon's office on that day?— A. I couldn't say.
Q. Was it not? — ^A. I couldn't say whether It was or not
Q. Yob signed that certiflcate, anyway, over at Mr. Bacon's ofllce?— A. Yes,
Bfr.
Q. You signed a certiflcate there that shows that that occurred and that you
signed it on the 5th day of November. 1912, didn't you?
Mr. Fhanrhauseb. We object to it ; it shows for itself.
Q. That was the fact at)Out it, was it not ; you did it on the 6th? — A. I think so.
Q. You are sure about that, yon signed it on the 6th? — A. Yes, sir.
Q. Made the certificate on the 0th of November, 1912, at Mr. Bacon's ofllce?—
A. Yes, sir; it looks that way.
248
CABNEY VS. SMITH.
Q. Isn t that a fact, not only looks that way?— A. I think it is.
J\m o ^^^ ^^®^ advice, didn't you, before you made that certificate over
at Mr. Bacon s office that the adjournment that you made of the election about
1 o clock on the morning of the 6th was not legal?— A. We were advised to go
back, told to go back and go to counting the votes.
J^' JS^ ^®r® advised that the adjournment was not legal ?— A. Nothing said
about the adjournment.
Q. That is why you went back, was it not, you understood you had no right
to adjourn?— A. Well, yes; after we found out we had no right we went back
and went to work.
Q. When you signed that certificate In Exhibit 3, at page 16, which I last
called your attenUon to, you signed that knowing that you should not have
taken that adjournment about 1 o'clock on the morning of the 6th, didn't you?—
A. I don't Imow as I Just get your meaning.
Q. When you signed this certificate which I now show you, over at Mr.
Bacon's office on the morning of the 6th of November, 1912, you knew that
you should not have adjourned your work over in the town hall at 1 o'clock
that morning?— A. The prosecuting attorney said we had to go back and go to
work.
Q. You had that information from the prosecuting attorney before you
signed that certificate on Exhibit 3?— A. Yes, sir; I think so.
Q. Mr. Hager, did you make an affidavit concerning the election held over
there on November 5, 1912?— A. I made a statement.
Q. And signed it and swore to it?— A. I signed it
Q. Did you swear to it?— A. Now, I rather think not.
Q. Have you a copy of it with you ?— A. I hav«i't ; I didn't get any copy.
Q. Who came to you with the statement and asked you to sign It, John C
Nichols?— A. He was there.
Q. He came to you as, a matter of fact, and sa^ you about it and asked
you to sign it, did he? — A. Yes, sir; he came over there.
Q. Was there anybody with him?— A. Well, nobody came over with him that
I know of.
Q. I mean when he came to see you?— A. No, sir; he was alone.
Q. Did he have the statement ready for you to sign?— A. Now, I couldn't say
as to that
Q. Did you sign it right there at that place?— A. I told him— he came to see
what we had done, and I told him what we did, and he wrote it down and I
signed the statement, no oath or anything.
Q. He didn't leave a copy of it with you?— A. No, sir.
Q. That is the John C. Nichols who was county clerk for a while?— ^. Yes,
sir.
Q. Do you know of anybody else who signed the same statement? Did you
see anybody else sign any statement? — A. I didn't see anybody else sign It
Q. Was there any other signature on the one you signed? — A. I couldn't say
now.
Redirect examination by Mr. Matnabd:
Q. In this certificate you signed. Exhibit 3, which reads as follows : *' State
of Michigan, county of Eaton, ss. We do hereby certity that the foregoing is a
correct statement of the votes given in the township of Sunfield, Eaton County,
State of Michigan, at the general election held on Tuesday, the 6th day of
November. A. D. 1912." Did you believe that to be a correct statement when
you signed it? — ^A. I did or I would not have signed it
Q. Do you still think it to be true?— A. Yes. sir; I do.
Recross-exaniinatlon by Mr. Adams:
Q. You still believe, do you, that the certificate here signed by you Is a cor-
rect statement and that you set your bauds to this certificate on the 5th day
of November, 1012, and that you believe that to be a correct statement, eh?—
A. I didn't say I set my hand there the 5th day of November. I believe that
to be a correct statement, nevertheless.
Q. I call your attention to the certificate : " The foregoing is a correct state-
ment of the votes given in the township of Sunfield, county of Eaton, State of
Michigan, at the general election held on Tuesday, the 5th day of November,
A. D. 1912. In witness whereof we have hereunto set our hands at the town-
ship of Sunfield, said county and State, this 5th day of November, A. D. 1912.'* —
A. I see that
Q. That was not true, was It? — A. No, sir; 1 told you
GABNEY VS. SMITH. 249
Q. (Interrupting.) You didn't set your hand there on the 5th? — A. No ,sir;
on the 6th ; that was the correct vote of the 5th of November.
Q. You dldn*t set your hand to that certificate until the 6th day of Novem-
ber. 1912?— A. I didn't say I did.
Q. Then It is not a correct certificate, is it? — ^A. Well, as far as the certificate
is concerned, the figures in that, I believe, are correct. It might have been —
it would not be the correct time. I signed it the next day.
Q. It says you signed that at the township of Sunfield, in said county and
State, on the 5th day of November, 1912; that part of that certificate is not
true, is it?
Mr. Maynasd. You have asked the same identical question 10 times, and
I object to it
Mr. Fellows. I object to any further interrogatories to this witness upon
this subject. He has stated, as far as the figures are concerned, that it is a
correct statement, and so far aS the date is concerned, that it was not signed
onto the 6th, and for that reason that question has been answered.
Q. It says you signed that at the township of Sunfield, in said county and
State, on the 5th day of November, 1912. That part of that certificate is not
true, is it? — A. I don't know as I said I signed it on the 5th day.
Q. The certificate says it was signed the 5th? — A. Yes, sir.
Q. The certificate says you did sign that certificate on the 5th day of Novem-
ber. That part of that certificate which says you signed that certificate on
the 5th day of November, 1912, is not true, is it? — ^A. I think the certificate
probably is not true, but the figures of that election returns are true, to the
best of my knowledge and belief.
Mr. Adams. That part of the answer as to the figures of the election returns
being true, I move to strike out as not responsive. I am interrogating him
wholly about the certificate.
Redirect examination by Mr. Maynabd:
Q. When they presented this for your signature was your attention called
to the date of the certificate at all as to whether the 6th or 5th? — A. No, sir;
I read It over there. It was not.
Q. The statement here is that this is a correct statement of the votes given
in the township of Sunfield, county of Eaton, State of Michigan, at the general
election held on Tuesday, the 5th day of November, 1912; do you believe that
statement to be true?-»-A. I do.
Q. Was your attention called to the date of it at all? — A. No, sir.
By Mr. Adams:
Q. You read the certificate over before you signed it? — A. I think so.
D. W. KNAPP, recalled for further cross-examination by Mr. Adams, testified
as follows :
Q. Mr. Knapp, did you make any statement in writing of what occurred over
there at the election in Sunfield on November 5, 1912, after the election was
over?— A. Yes, sir ; I think I did.
Q. Have you a copy of it with you ? — ^A. No, sir.
Q. Have you a copy of it at home? — A. I don't know whether I have or not.
Q. You kept a copy, didn't you? — A. I got a copy ; I made a copy of it myself.
Q. Didn't you keep it? — ^A. I don't know whether I can find it or not.
Q. What did you do with it? — ^A. I don*t know. It is somewhere in the house.
It was laid down, and I don't know whether I can find it or not.
Q. Who came to you to have you make a statement? — ^A. John C^ Nichols
came up there.
Q. That is John C. Nichols, of Charlotte?— A. Yes, sir.
Q. The same Nichols who was running on the ticket last November 5 elec-
tion?—A. I guess so; I don't know.
Q. He is the same John C. Nichols who succeeded Mr. Pray in the county
clerk's office?— A. Yes, sir.
Q. If you can find that statement, I wish you would bring it back with you
to-morrow.— A. Well, I can't do it
Mr. Adams. I would like to have the witness see if he can find it and come
back here to-morrow.
Mr. Fbankhauses. Will it do if he sends it in a letter?
Mr. Adams. No. I would like to have him come back to-morrow, too.
250 CARNEY VS. SMITH.
Mr. Fi-xLowe. There has been no notice given ns to produce this paper, and
the witness h«s been here and we are not bonnd to keep him h^re two or three
days for the accomniodntion of counsel. The witness is here, and if yon have
any further cross-examination to make, make it
Mr. Adams. I will Klve you notice now to have the witness produce that paper
here to-morrow morning at 11 o'clock.
Witness. I can't do it.
Mr. Adams. We give you notice now to produce the original that Mr. Nichols
got from Mr. Knapp and also from Mr. Hager, and we give you that notice now;
or any statement that he took of any witness or witnesses in Suufield or Carmel
Townships relative to that November 5, 1912, election. We give you notice
now to have Mr. Nichols or anybody else who has this to produce them.
Mr. Fellows. We will not produce them. W^e will let you make oral proof
of their contents.
Mr. Maynabd. We have no such documents. I haven't, and I have not seen
them nor heard of them.
Witness. I don't know whether I can find It or not. It may be in the house
somewhere, but I don't know where it is. If I get home at 10 o'clock at night
and back in the morning at 8 o'clock, I can't go through those things and get
any paper and come back here to-morrow.
Q. Can you get back here to-morrow afterncnrnV — A. No, sir; there is but one
train a day.
Q. Don't you get home until 10 o'clock at night? — A. No, sir; it is utterly
imi>o8sible. I can't get here to-morrow.
Mr. Adams. You can get it here Saturday morning upon the arrival of the
train?
Witness. At 11 o'clock.
Mr. Adams. Say Saturday morning of this week, unless we give the other side
notice that we do not want you to come.
11. H. MAPKS, being first sworn to tell the truth, the whole truth, and nothing
but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Maynard:
Q. What is your age?— A. Thirty-five.
Q. Where do you reside? — A. Sunfield.
Q. How long have you lived there? — A. About 10 years.
Q. What ofllcial position in the township did you hold on the 5th day of
November last? — A. I was township clerk.
Q. Are you still township clerk? — A. Yes, sir.
Q. When were you elected to that ofllce? — A. Last April.
Q. Did you appoint a dei)uty township clerk in that township? — ^A. I did-
Q. Whom did you apr>olnt? — A. J. 11. Bera.
Q. What relation is he to you? — A. He Is my father-in-law.
Q. Are you engjiged with him in busliiess there — ^the undertaking business? —
A. Yes. sir: and furniture.
Q. Did you act as clerk of that election at the general election held in the
township of Sunfield on November 5, 1912?— A. I did.
Q. Did you take any oflScial oath in the morning when you organised the
board? — A. Yes, sir.
Q. Who administered the oath to you?— A. Frank H. Bacon.
Q. Is he the oldest justice of the peace? — A. Yes, sir.
Q. He is not living now? — A. He is dead now^.
Q. Were you there when they adjourned for dinner?— A. Yes, sir.
Q. W' hat did you do with the books, pai)er8, and ballot boxes?— A. The books
were left there lying on the table and the ballot box was left
Q. Which way is the front of the building?— A. West; it faces to the west
Q. What street is that on? — A. Itunnlng which way?
Q. What is the name of the street that runs in front of this building^— A. I
don't believe there is a name for it; I don't know what it Is; I thhik Washing-
ton Street.
Q. Which way does that street run? — A. North and south.
g. Which way does the railroad run tiirough Sunfield? — A. East and west
Q. And tills building Is on the north side of the street fachig the west?— A.
Yes. sir,
Q. Then, on which side of the building were the booths? — ^A. On the south
side.
CARNEY VS. SMITH. 251
Q. As you go into the door from the west, the front door, what is there in the
southwest corner of the building? — A. TTiere Is the council room in there, where
the council meets.
Q. Is thnt where the village c(»nncil holds its meetings. In that corner? — A.
Yes, sir.
Q. Then, in tlie north of that building, is that the place whei-e the polling
booth is established? — A. It is in the corner here [indicating!, in the southwest
corner.
Q. Of that council room?— A. Yes, sir: then there is a railing running
Btralght down through there near the center, and we used the south half of that.
Q. That railing ran north and south? — A. East and west the railing ran.
Q. Which way is the long way of the building? — A. East and west.
Q. And the council room is in the southwest corner? — A. Yes, sir.
Q. Then the polling place is divided by the booths? — A. Yes, sir ; pretty nea-rly
ia the center.
Q. As you came in from the gate you face which end of the railing? — A. It
would be in the northwest corner of the railing. You mean the door you
come into the building?
Q. No, sir; the gate. — A. In the northwest corner.
0. Which way does the railing run? — ^A. East and west
Q. Which end of the railing was the gate at, the west end? — A. Yes. sir; the
northwest part This railing ran pretty nearly througli the center.
Q. The gate where they came out was at the east end? — ^A. Yes. sir.
g. Of the railing?— A. Yes, sir.
g. Who was attending the east gate? — ^A. Mr. Slater.
Q. Who was attending the west gate? — A. Charles Gilbert
Q. IIow old a man Is Mr. Gilbert?— A. He is about 30 yairs old or 35.
Q. W'hen they adjourned for dinner, who was left in charge of the polling
place?— A. Mr. Slater.
Q. When you got baclc. who did you find In charge? — A. Mr. Knapp.
Q. They had changed during your absence? — A. Yes, sir.
Q. Did you remain there until the i)olls closed at r> o'clock? — A. Y'es, sir.
Q. What did you and Mr. Knapp enter upon the poll book? — A. What do you
mean V
Q. The mimes of the voters? — A. Yes, sir.
Q. When you got through at night, did you compare your i)oll books to see
whether they were alike In number? — A. Yes, sir.
Q. Were they?— A. Yes, sir.
Q. Did j'ou see them count the ballots?— A. Yes. sir ; the most of them.
Q. What work did you do there at the polls?— A. I acted as clerk.
Q. While they were counting what did you do? — A. I was tallying.
Q. Did anybody else tally but yourself ?— A. Mr. Knapp.
Q. Explain just how you did that tallying?— A. AVell, as the inspectors
retid the names off we would tally them down. The first one they would call
off would be Governor, Mussulman 1, Ferris 1, and the second each one would
(111! back so they would agree, and every time when we struck the fifth one we
would call tally.
Q. Four straight marks and one cross? — A. Yes. sir.
Q. How long did you proceed in that way with the tally from the time you
bt^an at 5 o'clock?— A. Well, I was out somewhere between a half and three
qujirters of an hour about 8 or 9 o'clock; then I tallied until alx)ut 5 in the
morning, when Mr. Wltherall came over and relieved me.
Q. You were gone about that length of time?-— A. Yes, sir.
Q. Do you thluk as IcMig as three-quarters of an hour?— A. Well, now, I
^•oulda't sav for sure ; it was not over three quarters of an hour.
Q. What* were you doing?— A. I went home and fixed the fire over to the
store a few minutes.
Q. Then you went back to the polling place?— A. Yes, sir.
Q. Sometliing was said about somebody being injured there. Alwut what
time in the night did that occur, do you know?— A. W>11, he was injured, I
ihink, about 9 o'clock— I will not be sure— and died somewhere about 3 or 4
o'clock in the morning.
Q. After about 12 o'clock, between 12 and 1. did the board stop counting for
8 time?— A Ya8« sir.
Q. What did they do?— A. We took the ballots and straightened them out flat
that were counted and put them in the box and rolled the others up so they
would not get mixed up.
252 CARNEY VS. SMITH.
Q. Those that were counted you straightened them out flat? — A. Yes, sir.
Q. Where did you put them? — A. Baclc In the box.
Q. What did you do with those that had not been counted ?^A. We rolled
them up in a roll.
Q. In a close compact roll? — A. Yes, sir.
Q. How were they fastened? — ^A. Tied with a string.
Q. Was it a slimpsy package or made strong? — ^A. It was a pretty strong
packaga
Q. You put it in the box? — ^A. Yes, sir.
Q. What did you do with the box? — ^A. We locked the box up.
Q. Do you know who locked the box? — ^A. I think Mr. Knapp locked it.
Q. The next morning after the count did you see the returns again? — A. Yea,
sir.
Q. Where? — ^A. At Mr. Bacon's office.
Q. Were those statements and returns made out that morning entirely or
did you do some of the work at it before? — A. They were flUed in along during;
the day; that is, partly filled out.
Q. What date was put in them at the time they were filled out? — ^A. I think
November 5.
Q. Why was that done? — A. Not thinking anything at)out we would not get
through in time or have them all done that night.
Q. So you soy these were made out and put in the day before all ready to be
signed? — ^A. Yes, sir.
Q. With the exception of the numbers?
Mr. Adams. I will take an exception to that way of examining the witness.
Q. The next day, after the count was completed, did they meet at Bacon's
office? — ^A. Yes, sir.
Q. What was done there? — A. We finished making up the reports and sealed
them up and I mailed them.
Q. Did you mall them that day? — A. Yes, sir.
Q. Do you know who they were directed to? — ^A. Yes, sir.
Q. Who? — A. One to the county clerk and one to the Judge of probate.
Q. You mailed them yourself? — A. Yes, sir.
Q. Did you see them sealed in good shape? — A. Yes, sir.
Q. How were they when you posted them? — A. They were in good shape; they
were registered.
Q. You registered the packages? — A. Yes, sir.
Q. How many packages were there? — A. Two.
Q. While you were tallying, how near were you to the man that was reading
off the ballots? — A. Well, right to the same table where T was tallying, the same
ap here is the table, it was a little wider than this and he sat on the opposite
side from me ; nearly opposite, he sat the same as here and I here [Indicating].
Q. Did j'ou hear him read distinctly? — ^A. Yes, sir.
Q. Who did you hear read? — ^A. Mr. Bacon read a good many of them and
Mr. Hager and Mr. Palmer some of them.
Q. Hager, Bacon, and Palmer? — ^A. Yes, sir.
Q. Now, when they read them off. what did they first count?— A. The straight
tickets.
Q. Did you see them count them? — ^A. Yes, sir.
Q. Did you take all the numbers?— A. Yes, sir.
Q. Did you take them correctly as they gave them to you? — A. Yes, sir.
Q. Then what did they do after the straight ballots were counted and
tallied? — A. They went to counting the split tickets.
Q. Was there any time when there was but one inspector reading those bal-
lots?— ^A. No, sir.
Q. When one was reading the ballots what was the other doing?— A. Gen-
erally looking over his shoulder.
Q. Did yoii tally honestly and correctly Just as they were read to yon?—
A. Yes, sir.
Q. Did you give Mr. Carney credit for all the votes that were read to you
at that time by the board? — A. T did.
Q. Did you give Mr. Smith any tallies which were not read to you by the
board as belonging to him? — ^A. No, sir.
Q. Did you remain there after they began to count until they completed the
count? — A. No, sir.
Q. What time did you leave? — A. About 5 o'clock.
Q. How many ballots did they have to finish up when you left?— A. Som*'
where around a dozen ballots, I should think.
CABNEY VS. SMITH. 253
Q. Did yon count tbem at all? — ^A. No, sir.
Q. Wbo took your place? — ^A. Mr. Bera.
Q. Wliat did yon do? — A. I went home.
Q. Wlien did yon next see the board? — ^A. I saw them about 8 o'clock.
Q. Where? — ^A. At Mr. Bacon's ofBce.
Q. Who was present? — ^A. All of them were presoit, Mr. Bacon, Mr. Palmer,
and Mr. Knapp.
Q. Was Mr. Hager there? — ^A. Yes, sir.
Cross-examination by Mr. Aoaics :
Q. Yon got up to Mr. Bacon's office on the morning of the 6th of November
at 8 o'clock? — ^A. Abont that time; yes, sir.
Q. Not later than that?— A. I don't think so.
Q. Standard time? — ^A. I don't know what kind of time; about 8 o'clock.
Q. There is a difference of 20 minutes between standard time and fast time? —
A. 1 Judge it would be standard time; that is what we generally go by.
Q. When you got to Mr. Bacon's office, Mr. Bacon was there and Mr. Knapp
and Mr. Hager? — ^A. Yes, sir.
Q. And Mr. Palmer? — A. Yes, sir.
Q. Yon were the only fellow missing? — ^A. I was the last one there.
Q. The election books were there when you got there? — ^A. Yes, sir.
Q. All the election books were there that yon had used over in the town
Iwll the day before In conducting the election? — A. Yes, sir.
Q. All of them, every one of them, weren't they? — ^A. Yes. sir. Only I had
the registration book?
Q. The registration book? — ^A. Yes, sir.
Q. That was not a part of the records that were kept there on the day of
♦^lection, the registration book A. You asked me if I had all the books?
Q. Yes; and you were all right in answering it that way. The registration
book you hare referred to, that you took to that office, was the book in which
was kept a record of those who were registered prior to that election? — A. Yes,
sir.
Q. The registration book was there at the voting place on election day to see
whether the voters that came in to vote had been registered prior to that
day?— A. Yes, sir.
Q. That is the book you had? — A. Yes, sir.
Q. What was done with the other books, each and every one of them, that
you ased there on that election day? — A. Mr. Knapp, I think, got them; I went
to bed at that time in the morning.
Q. So you don't know what they did with them? — ^A. Do you mean at 5
o'clock in the morning?
Q. Yes, sir ; you were not there and don't know what was done with those
books when they quit there? — ^A. No, sir; when they quit in the morning I was
not there.
Q. When you got to Mr. Bacon's office about 8 o'clock on that morning of
the 6th you found there all the books except this registration book you had
used In carrying on that election there on the 5th day of November? — A. Yea,
sir.
Q. The statement books and the poll book and the tally sheets, they were all
there at Bacon's office? — ^A. Yes, sir.
Q. What did you go over there for? — ^A. I went over to get excused.
Q. That was all you went there for and that was all you did there that
mornUig? — A. Yes, sir.
Q. Just got excused ?--A. Yes, sir.
Q. Did you get excused? — ^A. Yes, sir.
Q. Did you stay there until the other fellows left or did you go right out
a» soon as you got excused ? — ^A. I went right out.
Q. You got excused as soon as you got there? — A. Yes, sir.
Q. You were around there probably five minutes? — ^A. I was not there when
the statements were made out; they were sealed up and delivered to me and
I mailed them.
Q. Where were they delivered to you? — A. At the post office.
Q. You were working in the post office? — A. No, sir; they brought them down
in front and called me and said the election returns were ready, and I took
them and had them restored.
Q. We will go back a little; what I want to get at is this: When you went to
Bacon's office that morning you just jwent in and stayed long enough to get
reused?— A. Yes, sir.
^54
CARNEY VS. SMITH.
Q. You were there less than five minutes probably? — ^A. I was not there that
long probably.
Q. They didn't do anything there — the board — while you were doing that?—
A. They were getting ready to work.
Q. You don't kjiow of anything they did while you were there? — A. No, sir.
Q. You left and went to your place of business? — A. Yes, sir.
Q. T^ater on there were delivered to you some envelopes that were sealed
up? — ^A. Yes, sir.
Q. Who brought those to you? — A. Mr. Knapp.
Q. Where were they delivered to you? — A. At the post office.
Q. That was a different place from where Mr. Bacon's office was? — A. Yes,
sir.
Q. Mr. Knapp brought them down there in envelopes addressed to the board
of county canvassers, care of the Jud(?e of probate or register of probate, Char-
lotte, Mich., one envelope? — ^A. Two.
Q. One was addressed that way? — A. I think so; yes, sir.
Q. And another envelope that was addressed to the county clerk, Charlotte,
Eaton County. Mich.? — A. Yes, sir.
Q. When those enve1ot)es were brought to you at your place of business by
Mr. Knapp they were both sealed? — A. Yes, sir.
Q. You don't know what was Inside of them? — A. I certainly do.
Q. You don't know what was Inside of either of them? — A. Yes, sir; because
I registered them and got a receipt back for them.
Q. Do you mean to tell this court and have it appear ujwn this record that
when Mr. Knapp deliveretl to you those enveloi^es you knew of your own
knowledge wh:it wjis ins^ide (»f them? You don't know of your own knowledge
when Mr. Knapp delivered those enveUjpes to you what was inside of them.
do you? — A. I do.
Q. I low do you know? — A. I could tell by the envelope.
Q. How do you know whut was on the inside of the enveloi)e?-^A. It eanie
out all right.
Q. There might have been a piece of blank board In there so far as you
know? -A. But there was not.
Q. Did you open them down here at Charlotte? — A. I did not.
Q. And yet you pretend to say that you know of your own knowledge what
was in each (me of those envelof)es, do you? You didn't see what was put In
them, did you. either of them? — ^A. I know I registered tlie two packages and
got a receipt back for them.
Q. When anybody brings to you a package and they say there are diamonds
in it, you know they are diamonds because somebody says there are diamonds
in It?
Mr. Maynard. Objected to as immaterial.
Q. Is that the way you want to be understood? — A. Unless they are lying
about It.
Q r>et me call your attention to Kxlilbit 2, which is an envelope addressed
to the County Clerk. Charlotte. Eaton County, Mich. It is marked on It " Reg-
istered," which is a stamp put on there by a stamp, isn't it? — ^A. Y'es, sir.
Q. And the tigures 53 in that stamp, is that correct? — A. Yes, sir.
Q. Is that the register mark you put on that package? — A. I didn't reg-
ister it.
Q. Who did register it?— A. I think the clerk In the post office did.
Q. Did you deliver that package to the post office In the town of Sunfleld?—
A. I gave it to the clerk.
Q. Have you the registration receipt? — A. I have.it at home.
Q. That package you delivered to the post office at Sunfleld, did you?— .V. I
was right there when he brought it in and handed it to the clerk and toUl
him to register it.
Q. Who did?— A. I did.
Q. You handed It to the clerk In the jKist office and asked the clerk to rec-
ister that i>artlcular package, but you didn't see what was put in the i)ackage.
did youV — A. No. air; I didn't see it. but I know what was in it. Don't yon
know what was in It?
Q. No; and you don't either. Remenil)er you are under oath, witness. Yon
testify that yon know. I am asking you for your knowledge. That was seale^l
when you got it? — .\. Yes, sir.
Q. It was sealed up at the time you delivered it to the post office clerk at
Sunfleld? — A. Just as I received it.
CABNEY VS. SMITH. 255
Q. It was sealed just as it was at the time you received it at the time you
banded it to the post office clerk at Sunfield? — A. Yes, sir.
Q. It passed out of your possession then? — ^A. Yes, sir.
Q. And you did not get it baclc into your possession a^aiu? — A. No, sir.
Q. You didn't see it again until to-day, did you? — ^A. No, sir.
Q. That is equally true of this paclsage '' 57 ; " that was sealed, that is the
euevlope when you banded it to the postal clwk? — ^A. Yes, sir.
Q. You didn't seal it?— A. No, sir.
Q. You didn't see it sealed?— A. Xo, sir.
Q. You didn't see what, if anything, whs put inside of it before it was sealed,
did you, at the time it was sealed? You didn't see whatever was in that package
Exhibit 57? — A. I think I have aus\^'ered the question
Q. I say that you did not see wliat was put into ESxhibit 57 at the time it was
sealed up and before it was handed to you and you turned it over to the clerk
of the post office? — A. No. sir.
Q. You don't undertake to say what was in it at the time you handed it to
the postal clerk, do you, at Sunfield? — ^A. No, sir.
Q. You didn't see it ojiened at any time after that? — A. No, sir.
Q. So that you don't know of your own knowledge what was in that envelope,
do you? — A. I do not. not of my own knowledge.
Q. You say of your own knowledge, you are under oath you know? — A. No,
sir; I don't; I know what was in it all right.
Q. You are willing to go ui)on the witness stand and swear upon your oath
now that you know what was in each one of those envelopes that are here be-
fore you, at the time you delivered them to the postal clerk in Sunfield on No-
vember 6, 1912? — A. I can i)rove those statements were in there and were
mailed to the proper address.
Q. I didn't ask whether you could prove it. Are you willing to swear now
tliat j'ou know, you did know, when you handed those to the postal clerk
November 6, 1912. at Sunfield, what was in each one of those envelopes? — ^A.
I don't think I have to answer it. do I?
Q. Do you refuse to answer it? — A. I will answer it in this way : I know
those were delivere<l to the proi)er address and you know they were, don't you?
Q. I am not on the witness ^tand. Do you swear now that you know what
was in each one of those envelopes at the time you delivered them to that
|)ostal clerk at Sunfield on November C, 1912? What do you say to that? —
A. I «ay the returns were proi)er and they were delivered to
Q. You say you know, you saw nothing? — A. What it proved out to be.
Q. I didn't ask you that. Do you know of your own Icnowlodge what was in
those envelopes when you delivered them to the postal clerk November 6,
1912?
Mr. Fellows. I object to cumbering up the record. There is no claim but
what the proper returns were put in the proper envelopes and mailed by the
proi)er officials to the proi)er officials from the township of Sunfield.
Mr. Adams. Whether that is true or not, that has no bearing on the question,
it Is simply bearing on his testimony and the question is entirely proi)er.
Mr. Maynard. The witness lias testified that he didn't know of his own
knowledge; he has testified that he did not see them put in. but he keeps multi-
plying questions on that one thing after he has his answer.
Q. You left there on the morning of the 6th at the place where the voting
was done that 5th of November, 1912. at what time? — A. About 5 o'clock.
Q. On the morning of the 6th? — A. Yes. sir.
Q. Your father-in-law took your place? — A. Yes, sir.
Q. And you didn't go back again that morning, did you? — A. No. sir.
Q. You said you thought Mr. Knapp locked the box ; did you see hhn lock
it? — A. I think I saw him lock It; yes, sir.
Q. Did you?— A. Yes, sir.
Q. You saw him lock it? — A. Yes, sir.
Q. When did he lock it? — A. What do you mean? Do you mean at midnight?
Q. I mean in the morning. — A. I didn't see him lock it in the morning: I
thought you meant at another time.
Q. Did you see bin) lock it on the morning of the 6th? — A. No, sir; I was
not there.
Q. Did he lock it at night, j'bout 1 o'clock, when you adjourned? — A. Yes,
sir : that is what I thought you memt.
Q. What time did you adjourn that night? — A. I don't think any regular ad-
Jonmment — we talked about quitting. Mr. Bacon felt ill ; in fact, he was sick
256 CARNEY VS. SMITH.
in bed a week after, and he Bays» " Boys, I don't think I can work much longer/'
Q. I want to know what time you adjourned? — ^A. About 1 o'clock, I told you
that two or three times.
Q. I don't think I asked you about that before. — A. Tea, you did.
Q. It was 1 o'clock, was it? — ^A. About that.
Q. There was no public announcement made, you Just said you would ad-
journ until the next morning, is that right? — A. I didn't say anything.
Q. Is that what was said and done there? — A. We adjourned until morning.
Q. No hour was fixed at which you were^to begin again? — A. I don't remem-
ber of any.
Q. Whose writing is this on Exhibit 3, there where the certificate blank
stops? — ^A. That is not my writing.
Q. Do you know whose it is? — A. It looks like Mr. Knapp's writing.
Q. You saw that written in, did you? I don't mean the signatures, I am
talking about what was written in in the printed spaces in the body of tlie cer-
tificate.— ^A. I should call that Mr. Knapp's writing.
Q. You saw that written in. did you? — ^A. I saw him writing, I couldn't swear
just what he wrote, I saw him writing on the book.
Q. Where did you see him writing on the book? — ^A. Through the day.
Q. You don't know whether he wrote any of that part which is writtai with
a pen in the certificate of Exhibit 3 before he got over to Mr. Bacon's ofllce on
the 6th, do you? — A. I think he wrote that In there.
Q. Where did he write it in?— A. On the table.
Q. Where?— A. At the town hall.
Q. On that particular book? — ^A. I think that is the book he was writing, or
some book.
Q. CJan you swear he wrote that in that certificate? — A. No, sir; I couldn't
swear to that.
Q. That is what I thought. — ^A. It looks like his handwriting.
Q. When he wrote it in, you can not swear? — A. No, sir; I can not the exact
hour.
Q. Nor the time nor place? — ^A. No, sir.
Q. Do you want to be understood as swearing now that you saw Mr. Knapp
writing in that certificate on this Exhibit 3, on page 16 of it, do you, the part
that is filled in there, the spaces there with a pen in the certificate? — ^A. I think
I have answered that question.
Q. Do you swear that you saw him write that in there on the 5th? — ^A. I don't
swear I saw him write that identical place; no.
Q. If you didn't see him write that identical place you can't testify he wrote
that in on the 5th, can you, in the town hall?
Mr. Fbankhauseb. He has testified to that once.
Q. You don't know whether he wrote that in, as a matter of fact, whether
he wrote it in at the town hall or at Mr. Bacon's office, do you, in that particu-
lar certificate? — A. No, sir; I couldn't tell particularly that one item there^ but
he was writing on the book.
Q. When you went away at the noon adjournment all the books used there
on the election were left on the table? — ^A. I think they were ; yes, sir.
Q. They were not put In the ballot box and locked up, were they? — A. I don't
think so.
Q. You saw them on the table when you went out, didn't you? — ^A. Yes, sir;
I wns not an inspector of election.
Q. Whether you were an inspector of election or a clerk of the election, did
you see as clerk of the election whether they were lying on the table? — ^A. They
were on the table when I went out
Q. Did the other fellows go out with you?— A. I didn't notice whether they
did or not ; I couldn't tell you that.
Q. An adjournment w^as made when you left for the noon hour, was it? —
A. Yes, sir.
Q. Did any of the inspectors of the election go away from there right after
that noon hour when you left and went away? — A. I couldn't tell you; they
didn't go with nie.
Q. Did you see them go out of there? — ^A. No, sir.
Q. Did they go out ahead of you? — ^A. L didn't see them.
Q. Do you know whether they went out ahead of you? — ^A. I didn't see them.
Q. Were you the first to leave? — ^A. I don't remember; I don't know whether
I was the first or the last man out; I didn't go out Sivith any particular party.
CABNEY VS. SMITH. 267
Q. Was the time you left there when j'our father-iu-law took your phice on
the morning of the 6th the first time that you were away after yon began
counting the ballots? — ^A. No, sir.
Q. When were you away any other time? — A. Between 8 and 9 o'clock; I
don't know exactly what time.
Q. At night?— A. Yes, sir.
Q. How long were you away then? — A. A half or three-quarters of an hour.
Q. Who took your place then? — ^A. Mr. Sayer and Mr. Witherall; one tallied
a little while then the other.
Q. When you left at that time Mr. Sayer and Mr. Witherall were doing the
counting? — ^A. No, sir; Mr. Witherall tallied first, I think, for me and thei Mr.
Sayer tallied some ; then I came back.
Q. When you left there about 8 o'clw^k on the evening of the 5th of November,
who took your place to tally? — A. Mr. Witherall.
Q. Who else was tallying at that time? — ^A. Mr. Knapp.
Q. When you got back it was about in three-quarters of an hour? — A. About
that.
Q. When you got back who was doing the tallying? — A. Mr. Sayer and Mr.
Knapp.
Q. Had Mr. Witherall stopped tallying then? — A. I think he had.
Q. Who else continued tallying then? — ^A. Mr. Knapp and myself.
Q. Did Mr. Knapp go away at any time after you began tallying up to the
time you left about 5 o'clock the next morning? — ^A. I think he was gone about
ten minutes.
Q. Was that the only time he was gone after you commenced counting the
ballots up to the time you left on the morning of the 6th? — ^A. That is the only
time he was away while I was there.
Q. Were the names put on or any figures filled in the statement books before
yon left the town hall on the morning of the 6th? — ^A. What is the question?
Q. Was there any writing made in the statement books before you left the
town hall on the morning of the 6th of November? — ^A. I think some of the
blanks were made out
Q. What blanks? — ^A. I don't Just remember what blanks.
Q. How do you come to say that some of the blanks were filled out if you
don't know what ones? — A. I couldn't tell ; I haven't memory enough for that.
Q. You didn't have anything to do with filling out those statement hooks? —
A. Some of them were filled out in the poll book.
Q. I am talking about the statement book. Is any of that writing In that
statement book your handwriting — this Exhibit 3 — ^any of your handwriting in
that book?— A. No, sir.
Q. Is any of the writing in that book. Exhibit 13, the [wll book, in your
handwriting? — ^A. No, sir.
Q. Did you make any statement of what occurred there at that election on
November 5 and 6, 1912, to anybody? — ^A. I don't know what you mean.
Q- After election didn't John C. Nichols come to see you? — ^A. Yes, sir; we
had a little talk about it.
Q. Did you make any statement in writing to him of what you claimed
oc-curred at that election on the 5th and 6th of November, 1912? — ^A. Yes, sir.
Q. Have you a copy of that statement with you? — A. I have not.
Q. Did you get a copy of the statement you made to him? — A. No, sir.
Q. Did you sign the statement j'ou made to him? — A. I think I did.
Q. That is the same John C. Nichols who later on was deputy county clerk
here after Mr. Pray got out of office — is that the same fellow? — A. Yes. sir;
John C. Nichols, the attorney.
Q- He became county clerk after Mr. Pray quit? — A. I couldn't tell you that.
Q. He ran for circuit court commissioner on the ticket last November at that
election, didn't he — that is the same fellow? — A. I think so.
Redirect examination by Mr. Maynard :
Q. Whose handwriting is this in Exhibit 24?— A. It looks like D. W. Knapp's.
Q. On the 5th of November, while this election was in progress, at times
when there was a lull in business did you see Mr. Knapp writing on these books
of return? — ^A. Yes, sir.
Q. Was he working on that cousidenibly during the dsiyV — A. Quite a little;
yes, sir.
280—13 17
258 CARNEY VS. SMITH.
Q. Did you assist him In nuy way? — A. Well, I had the poll book
Q. Not the statement books, but the poll book?->A. I didn't write any of this;
this Is what was filled out here.
Q. Did you flU this out?— A. That is Mr. Knapp's wrltingr.
Q. Now, where did you find the election seal after the eleclion? Who was it
left in charge of ?^A. Mr. Bacon had the seal.
Q. That seal, as far as you know, was left with Mr. Bacon?— A. Yes, sir.
Q. Where is it now?— A. I have it.
Q. Do you know anything about the sealing of the ballot box after the ballots
were counted? Were you present?- A. No, sir.
Recross-examlnation by Mr. Adams:
Q. All the filling in that Mr. Knapp did on the day of election of the 5th of
November was simply the oaths of the different Inspectors and different places
who took the oaths there to participate in the carrying on of that election.
Isn't that true? — ^A. Well, I couldn't swear he did. I saw him writing.
Q. You don't know what he wrote? — ^A. No, sir.
Q. You each had to keep a poll book that day, did you? — A. Yes, sir.
Q. You had one and Mr. Knapp had one? — A. Yes, sir.
Q. When a voter came in to vote you wrote down his name? — ^A. Yes, sir.
Q. In the book you kept? — ^A. Yes, sir.
Q. Mr. Knapp sat there and had a similar book, and he was sitting there and
writing in his poll book the name of a voter every time one came in? — A»
Yes, sir.
Q. So that while the voters were coming in there were your duties and Mr.
Knapp's to keep this poll book and enter the names? — ^A. Yes, sir.
Q. Of every voter who cast a ballot there? — ^A. Yes, sir.
Q. Those were your duties during the time the voting was going on? — ^A.
Yes, sir.
Q. And those were the duties of Mr. Knai)p? — ^A. Yes, sir.
Q. That is what you did? — A. Yes. sir,
Q. And that Ih what Mr. Knapp did, is that correct? — A. Yes, sir.
Q. On the stnteniont books the votes leceived opposite the names of the re-
respective candidates could n<it veiy woll be written in there until after they
got through with the count, could they? — A. No, sir.
Q. So they were not written in there, filled in there, up to the time you left
the voting place, were they ? — A. That is not my writing.
Q. You could not fill in the number of votes that any candidate got until the
count w^as completwl. could you write them in. In words as it is written in tlie
statement book Exhibit 3 and have it correct? — A. It didn't look as though you
could.
Q. You could not and have it correct? — A. No, sir; not until you were throagh
with the count.
Q. It could not be done there in Exhibit 24 could it, and have It correct any-
way where it Hhows the number and the words written out in longhand, William
Livingstone, elector, written opposite his name and written out in longhand
" 131 " that could not be written out opjwsite any candidate's name until the
count was completed? — A. I don't clnlm so.
Q. It could not be done and have it correct? — A. No, sir.
Q. The fact is, it would all have to be counted before they could obtain and
have it correctly show what occurred in that regard, would it not? — ^A. Yes. sir.
(Whereuiwn the hearing was adjouruo<l until 9 o'clock a. m. Friday, March
21, 1913.)
FRIDAY, MARCH 21, 1013 — 1» O'CLOCK A. M.
A. B. HOYT, being first duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Frankhauser:
Q. You live in Bellevue Township ?~A. Yes, sir; the village.
Q. How old are you? — ^A. I am 70 years old.
Q. How many years have you lived there? — ^A. Thirty-three years last fall.
Q. Were you a resident of that township at the time of the last general
election? — A. I was.
Q. In 1912?— A. Yes, sir.
Q. Did you vote there at the polling place that day?— A. I did.
CABNEY VS. SMITH. 259
Q. What time of day did you vote? — ^A. I voted about half iiast 8 In the
momiDg.
Q. How long did you remain in the polling place? — A. Just to vote and walk
right out.
Q. Were you back to that polling place at any time that day? — A. Not at all.
Q. What is your buBiness? — A.' Fire insurance and real estate a little.
Q. Have you held some official positions in the county? — A, Yes, sir.
Q. What were they? — ^A. I have been treasurer of the township and con-
stable years ago.
Q. The contestant produced some evidence here that you accompanied Orrin
Kinil>erly. a blind gentleman, to the polls that day and that you accompanied
him to the voting booth and pass€^ through it; I don't just remember; is that
true? — ^A. No, sir.
Q. Do you know anything about Mr. Kimberly being there that day? — ^A. I
didn't see him^
Q. The contestant has introduced some evidence to the effect that you were
working for John M. C". Smith that day for Congress outside of your voting;
did you work for anybody for Congress? — A. I worked for the straight Re-
publican ticket.
Q. Did you work especially for John M. C. Smith? — ^A. No, sir. ^ '
Q. Did you solicit any about the polling place, or anywhere near it for any
votes for John M. C. Smith?— A. Not at all.
Q. Did you solicit any votes for him at all any where ?-^A* No, sir.
Q. The contestant has produced some evidence here to the effect that you did
some work for a man, digging potatoes, so he could come and vote for John M. G.
Smith ; is that true as he stated? — ^A- No, sir.
Q. Just put on the record what there was to it? — ^A. Frank Allen told me
that Charles Whipple wanted to come down and vote but could not spend the
time.
Q- What office did Allen hold? — ^A. He was chairman of the township com-
mittee.
Q. Of what party?— A. Of the Republican Party.
Mr. Adams. I object to the witness stating what somebody told him as hear-
say, and as incompetent, irrelevant, and immaterial.
Witness. He said he wanted to vote but he would not spend the time to go
and vote. There was an automobile there and I got in the automobile and went
up to Whipple's, about a mile and three-quarters, and he said he could not
spend the time.
Mr. Adams. I object to what Whipple said about not being able to spend the
time as irrelevant and immaterial and hearsay.
Q. Go on. — ^A. He said he could not spend the time and I took his fork and
dug potatoes while he came down and voted ; that is all there was to It.
Q. How long did you dig? — ^A. Just long enough for him to ride down and
vote ; I presume 20 or 30 minutes.
Q. Are you acquainted with the election board that sat there that day? — ^A.
Yes* sir.
Q. Who was the township clerk, Mr. Weed? — A. Charles Pendle.
Q. Who was the other clerk? — A. My son was one clerk of the election.
Q. I will ask you to state in a few words what sort <Jf men they are?
Mr. Aj)ams. I object to it as incompetent, irrelevant, and immaterial.
A. They are first-claSs fellows, I think.
Q. In your opinion, would any of them commit a fraud in the casting or can-
vassing of the votes?
Mr. Adams. I object to it as lncomi)etent, irrelevant, and immaterial.
A, No, sir; I don't think they would.
Q. State whether or not they are among the best citizens of that township?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. They are flrst-class fellows.
Gross-examination by Mr. Adams.
Q. Did you see Mr. Kimberly that election day? — ^A. I did not.
Q. Are you sure about that? — A. Yes, sir; pretty sure.
Q. Did you help conduct anybody into the booths or voting place on the 5th
of November, 1912?— A. No, sir.
Q. You evidently were working some on election day, weren't you?— A. Yea,
sir.
Q. Well, were you running for any office yourself ?— A. No, sir.
260 CARNEY VS. SMITH.
Q. At that election? — ^A. No, sir.
Q. You are a Republican in politics and were on November 5, 1912? — A. Yes,
sir.
Q. You have a son? — ^A. Yes. sir.
Q. What Is his name? — ^A. John L. Hoyt.
Q, He was. or is a candidate, or was a candidate, rather, about election time,
the 5th day of November. 1912. for the post office down there at Bellevue? — A.
Yes, sir.
Q. And you were particularly interested in the reelection to Congress of John
M. C. Smith, were you not? — A. I was.
Q. Y'our son was acting; on the board there at Bellevue, was he not, on the
5th day of November, 1912, the election board? — A. Yes, sir.
Q. He was acting in the capacity of clerk of that election, was he not? — A.
He was; yes, sir.
Q. On that day? — ^A. Yes. sir.
Q. I suppose your son was working somewhere in the interest of John M. C.
Smlth?~A. Not at all.
Q. For his election, he hadn't been working at all? — A. No, sir; he is prohib-
ited from doing it. He was a mail carrier.
Q. Whether he was or not, had he been working in the interests of John
M. C. Smith for Representative in Congress? — A. No, sir.
Q. Did you do any work at all for John M. C. Smith prior to the election
there last fnll?— A. Not last fall.
Q. Not a thing?— A. For the Republican ticket I did.
Q. Did you hold any position in the Republican organization in the township
of Bellevue? — A. No, sir.
Q. You did do some work for the Republican ticket? — A. Y'es, sir.
Q. You did a little more, didn't you, for John M. C. Smith than for some of
the others? — A. I never received a penny in my life.
Q. I am not talking about pennies or dollars; I am not talking about that,
I am talking about work; w-o-r-k? — A. Yes, sir.
Q. Whether you did any in the interest of John M. C. Smith? — A. Personally
1 did not.
Q. Did you go out and talk among the people there in Bellevue or surround-
ing country in the interest of John M. C. Smith? — A. I did not.
Q. You didn't say a word to anylmdy in relation to John M. C. Smith's
candidacy for the office of Representative in Congress prior to the election of
November 5. 11)12, during that campaign? — A. I have no doubt but I talked
about it.
Q. Talked in his favor? — A. 1 presume I did.
Q. On election day I suppose you were out around among the people la
Bellevue working, were you not, some in the interest of the Republican Party? —
A. I was not out of my office until afternoon : in the afternoon I was out In the
country; I was not in the building.
Q. You were working in the interest of the Republican ticket? — A. Yes, sir.
Q. What did you do in the afternoon of November 5^ then? — ^A. I told you
about digging jwtatoes. 1 went out to Section Hill, there was a gentleman I
never saw, I don't know him, the boys said
Q. (Interrupting.) Telf me what you did; I asked you what you did.
Mr. Fkllows. Go on and tell your story, let him object.
Mr. Adams. I object to counsel instructing the witness to give hearsay testi-
mony; I am examining the witness at the present time and I would like to
have it understood.
Mr. Fellows. Make your objections upon the record.
Mr. Adams. I take an exception to your instructing the witness how to
answer this question.
Q. I instruct you not to tell what anybody said while I am examining you.
Mr. Fellows. I take an exception to that; the witness can give his testimony
and you can take your exceptions upon the record.
Mr. Adams. The witness is here to answer my questions.
Q. Tell me what you did. — A. I went up to the hill; I never saw the man,
and he was out in the com field picking up com, and I told him we wanted
him to come down and vote. I never asked him his politics, but I heard he was
a Republican. If I hadn't heard that I would not have asked him, I don't
think.
Q. Did you work for the Bull Moosers? — ^A. No, sir. He said he couldn't
go. I says " You let me alone, I will pick up this com," but he would not do
that I turned In and helped him pick up and we loaded the com up and drove
CARNEY VS. SMITH. 261
up to tbe crib and unhitched the team and put them in the bam and got in the
automobile, and he aslced me whether his little fi^irl could ride down, and I
said yes, and he went down town and went in and voted, and I didn't go In.
Mr. AoAMS. I move that that part of the answer in which he gave what con-
versation occurred go out.
Q. What else did you do? I am not asking for any conversation you had
with anybody. Tell what you did. I don't want the conversation. — ^A, That
is all I did.
Q. Did it take you all. the afternoon to pick up that com and dig those po-
tatoes?—A. I didn't go until about half past 2 or 3 o'clock.
Q. Did It take you the balance of the afternoon to do those two Jobs? — A.
No, sir.
Q. What elpe did j'ou do? — A. I didn't do anything. I was pretty nearly
tired out. and I went in the office and sat down.
Q. Working in the com was not what you were In the habit of doing? — ^A.
Xo, sir.
Q. I suppose some fellows came Into your office that election day, didn't
they?— A. Sure.
Q. You were In the insurance business? — A. Yes, sir.
Q. You had an opportunity to talk politics a little in the afternoon, didn't
you?— A. Yes. sir.
Q. To Insure the success of the Republican party you did that? — A. Yes, sir.
Mr. Frank II A USER. I object to the cross-examination as not pertinent to the
issue and not bearing upon the Issue or upon the credibility of the witness ; It
is aimless and pointless.
Q. You talked with a number of people on that day, didn't you. about vot-
ing?—A. I presume I did.
Q. I suppose that John M. C. Smith was discussed favorably by you with
those you talked with on that election day, November 5, 1912? — A. My aim
was to get all the Republican votes I could, and I did that. I am not much of
a politician. I can't do much, but I did what I could.
Q. Did you see Mr. Kimberly that day? — ^A. No, sir; I did not.
Q. You didn't see him that day? — A. No, sir.
Q. Anywhere In Bellevue? — ^A. No, sir.
Q. Is there any blind men jhi your township besides Mr. Kiml»erly? — ^A. I
think not.
Redirect examination by Mr. Frankhauser:
Q. Did you tell one Frank Johnson
A. (Interrupting.) Ed. Johnson.
Q. (Continuing.) After election, did you tell him that, or In substance, that
you had worked for John M. C. Smith on elei*tlon day? — A. No, sir
ORRIN KIMBERLY, being first sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Frankhauser :
Q. Mr. Kimberly. you live in Bellevue? — ^A. Yes, sir.
Q. How long have you llA-ed In that township? — A. Since 1833, except 13
years.
Q. How old are you? — ^A. I am past 81.
Q. You are suffering the misfortune of blindness? — ^A. Yes, sir,
Q. Totally blind, are you? — ^A. Yes. sir.
Q, How long have you been blind? — A. I have been totally blind about 18
years.
Q. You were blind, then, of course, on the 5th day of November. 1912 — elec-
tion day last fall ? — A. Yes, sir.
Q. Now, how far did you live from the polling place? — A. Two blocks or three
blocks; two blocks.
Q. Did they vote on the ground floor or upstairs? — ^A. Upstairs.
Q. Will you tell me whether you voted at that time or not? — ^A. Yes, sir.
Q. What time In the day? — A. It was between 12 and 1 o'clock.
Q. Who constituted your family: have you a grandson living with you? —
A. Yes, sir; at that time.
Q. How old was he? — A. He was 21.
Q. Tell me on the record how you came to go to the polls ; that Is, how you
want and who assisted you? — ^A. My grandson led me down and led me up-
stairs.
262 CARNEY VS. SMITH.
Q. When he left you, or rather did he take you in behind what is called the
railing? — ^A. No, sir; I think not
Q. Who took you behind the railing, if you know? — ^A. I couldn't tell you.
Q.'Wag it A. B. Hoyt?— A. Well, I couldn't tell positively; I don't think
there was any talk between us. I think I called for somebody to come and
help me in. I was in quite a hurry ; my wife was sick.
Q. Did you talk with A. B. Hoyt that day?— A. Not that I know of; T went
right back home.
Q. Would you know his voice if you heard it? — ^A. Yes, sir; usually.
Q. How did you get into the booth? — ^A. Somebody led me, but I don't know
who.
Q. Did the same man lead you that marked your ballot, as far as you could
tell?— A. I think it was.
Q. What did you request there? — A. I wanted to vote a Democratic ticket.
I could not positively tell it was the same man that led me.
Q. If your ticket was marked as you requested, you voted a straight Demo-
cratic ticket, and for Mr. Carney for Congress? — ^A. Yes, sir; I think I did:
I suppose I did, anyway.
Q. Did you request it, that is, make a request? — A. I can't read but my wife
can, so I am not posted, and the only thing I can do is to vote a straight
ticket.
Q. That is the ticket you had been voting? — ^A. Yes, sir.
Q. Whoever marked your ticket was in the booth with you? — ^A. Yea sir.
Q. After it was markefl what did you do with it? — A. He helped me out and
I handed it to him and they received it.
Q. Did the man who marked it hand it to you again? — ^A. Yes, sir; he
folded it and handed it to me.
Q. What did you do with it? — ^A. I carried it in and handed it to them and
they took it.
Q. You don't know who that was? — ^A. No, sir; I supposed it was Mr. Weed.
Q. The supervisor, as 3'ou understood it?
Mr. Adams. I move to strike out what he supposed, as irrelevant and in-
competent.
Q. You understood Mr. Weed to be the supervisor of the towushii>? — A. Yeg,
sir. #
Q. Now, how did you get out from behind the railing again? — A. Some man
got me to the door.
Q. Who took you from him? — A. The boy that was with me.
Q. You mean your grandson? — A. Yes, sir.
Q. Is that the way you have voted for 18 years, by somebody assisting you,
since you were blind? — A. Yes, sir.
Q. Did anyt)ody ask you that day in and around the booth to vote for John M.
C. Smith?— A. No; I didn't hear anybody.
Q. I mean when you went to cast your vote, did anybody solicit j'oiir vote for
any candidate or any party? — A. No. sir-: nobody had any chance. I guess.
Cross-examination by Mr. Adams:
Q. You don't know Mr. Kiniberly who was in the booth with you? — A. No, sir:
I couldn't tell whether more than one or not.
Q. You don't know how many were in there, if more than one or who that
one or ones were? — A. No, sir.
Q. You could not tell whether the same man led you who marked your ballot,
could 3'ou; you couldn't see? — ^A. No. sir; I couldn't tell; I don't know.
Mr. Adams. That is all.
HERBERT M. WEED, being first duly sworn to tell the truth, the whole truth,
and nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Fellows:
Q. Mr. Weed, where do you reside? — A. Bellevue.
Q. How long have you lived there? — A. Fourteen years.
Q. Have you any official jwsition in the township? — A. Suiwrvisor of the
township.
Q. Were you supervisor on the 5th day of November last? — A. Yes, sir.
Q. As such sui^ervisor, did you sit on the board? — A. Yes, sir.
Q. Who else constituted the board that day?— A. Mr. Rogers, a justice of tlie
peace; Daniel Hall, a justice of the i>eaoe, and J. L. Hoyt was clerk, and J.
Pendle, clerk of the township.
_K.
GABN£Y VS. SMITH. 268
Q. Are you acquaiuted with Orrin KiniberlyV— A. Yea, sir.
Q. How long have you known him? — ^A. Fourteen years.
Q. Have yon known of his infirmity during that time? — ^A. He always has
been blind since I have known him.
Q. Always been totally blind? — ^A. Yes, sir.
Q. Do you recollect the circumstance of Mr. Kimberly voting that day? —
A. Yes, sir; I remember of his coming there to vote.
Q. Do you remember who brought him to the polling place? — A. 1 don't know
who brought him upstairs; I didn't see him; 1 saw him just as he entered the
gate.
Q. Did somebody asMst him to go into the |)olliug place from the gate? —
A. Yes, sir.
Q. Who was that?— A. Dan Hall.
Q. A member of the board? — ^A. Yes, sir.
Q. What did you see Hall do? — ^A. Mr. Kimberly announced his name and
asked for a ticket and asked for assistance, and Mr. Hall took him into the
booth and led him through the booth, and Mr. Kimberly brought me the ticket,
and I deposited it
Q. Was it apparent to you at that time thnt Mr. Kimberly needed assist-
ance?— A. Yes, sir.
Q. He was blind? — A. Yes, sir.
Q, Did you see whether Mr. Kimberly's grand.son was there at that time? —
A. I dldn*t see his grandson.
Q. Did yon deiM^sit the identical bnllot thnt Mr. KUnl)erl.v gavo yon hi the
box? — A. I did; yes, sir.
Q. Were there any challengers for any of the tK)litical parties there at that
time at the polling place at any time that day? — A. There was not: no sir.
Q. Any challengers appointed for any of the parties? — ^A. No, sir.
Q. And none acted? — A. No, sir.
Q. Was there anyone else that asked for Instruction that day? — A. One Hun-
garian.
Q. Was he assisted or merely told how to vote, then prepared his ballot him-
self?— A. The man went into the booth and came out and asked for assistance,
and Mr. Uogers went into the booth with him. One other man went into the
booth and came out and asked how to mark his ballot, and they told him and he
went back in; that Is all there was to that.
Q. Was he correctly told? — A. Yes, sir.
Mr. Adams. I move to strike out whether he was correctly told as calling for
the conclusion of the witness and as incompetent.
Q. Was there any electioneering there in behalf of any party around or in the
polling place? — A. I didn't hear a word in any way.
Q. Was the election fair as far as you know and you saw?
Mr. Adams. I object to that as hicompetent. irrelevant, and inminterial and
calling for the conclusion of the witness.
A- There was no electioneering that I sjiw in any way or nothing unfair;
there were no questions asked that 1 heard during the day about ]>oIltics in any
way.
Q. Was there any discussion of politics? — A. Not a bit; as quiet an election as
I ever saw in my life.
Q. After the returns were all made out, what was done with them? — A. They
were sealed and handed to the clerk.
Q. Did you assist in sealing them? — ^A. Yes, sir.
Q. By that what do you mean? — ^A. I used a stami), and I think Mr. Hall
melted the wax and I stamped it.
Q. Stamped it with the seal of the township? — A. Yes, sir.
Q. And they were delivered to you by the clerk? — A. Yes, sir.
Q. In that condition?— A. Yes, sir.
Q. What do you say as to whether or not A. B. Hoyt led Mr. Kimberly up
there? — A. He certainly did not.
Cross-examination by Mr. Adams:
Q. Somebody led him up, there is no question about that. — A. Yes; he had
to be led up.
Q. There was somebody led Mr. Kimberly in? — A. Yes, sir.
Q. And into the booth?— A. Yes, sir.
Q. And from the booth through where the board of insjieotors were receiving
and depositing ballots? — A. Yes, sir.
264 CARNEY VS. SMITH.
Q. And tlio sentleninn who led Mr. Klmberly from the gate into the booth, and
from the booth after, I supi>oRp. his ballot was marked to the place where the
ballots were re<eivfHl for dei»oRit was Mr. Hall? — A. Yes, sir.
Q. Daniel Hall?— A. Yes, sir.
Q. Dan Hall, one of the insiKH'tors of election th^re that day? — A. Yes, sir.
Q. Yon are or were on the 5th of November a Repnblican in iwiitics?— A.
Yes. sir.
Q. And had been for a nnniber of years? — A. Yes. sir.
Q. And are now? — A. Yes, sir.
Q. And Mr. Hall was a Repnblican; that is, on that election day, and before
that, and still is? — A. As far as I know.
Q. The three members, Mr. Weeil, yonrs4»lf. Mr. Rogers, and Mr, Hall, you
were all Republicans? — A. Yes, sir.
Q. Both of the Justices of tlie jieace who acted on that lioard w^ere Repub-
licans?— A. Yes, sir.
Q. And the clerk, what was his name? — A. Mr. Hoyt : he was a Repnblican.
Q. You had another clerk, didn't you; F. W. Fitzgerald? — A. Yes. sir.
Q. Who acted as clerk of that ele<'tion that day? — A. YVs. sir.
Q. He was a Reimblican? — A. He was a Democrat.
Q. He was the only Democrat on the board? — A. Yes, sir.
Q. He a.ssisted as clerk? — A. Y'es, sir.
Q. Mr. Hall was the only man who was in the booth with Mr. Klmberly when
Mr. Kin)berly's ballot, was marked, if marked? — A. The only man I saw go in
and come out.
Q, You say there were no challengers there that day? — A. Y'es, sir.
Q. Representing any |»olitical party? — A. No, sir.
Q. None were there when Mr. Klmberly voted, no challenger?— A. No, sir.
Q. Not a single one? — A. No, sir.
Q. I understo<Kl yon to say that one Hungarian asked for instructions? — A.
Yes, sir ; asked for help ; asked for instructions and one asked for lielp.
Q. One Hungarian asked for help? — ^A. Y(*s. sir.
Q. In marking his ballot? — A. Yes, sir.
Q. You didn't submit to him the oath that the statute re<piires. did you? — A.
No, sir.
Q. Who gave him the help?— A. Mr. Rogers.
Q. Where did he give him that help; in the booth? — A. Yes, sir.
Q. Nobody go in besides Mr. Rogers into the booth? — A. No, sir.
Q. Did he say why he wanted help? — A. No, sir: he came out of tlie booth
and asked for assistance.
Q. Do you remember that man's name? — A. I do not ; no, sl^.
Q. Could you tell us his name if you were to look over tlie poll book and look
at the names: se(i whether you could fish it out? — ^A. I don't know whether
I could or not; I don't think I could; I know the other fellow's name was
Slmcox, that went in the booth and came out and started about marking his
ballot: he was new on the business and aske<l about marking the ballot, and we
told him and he went back and niarke<l his own ballot: Slmcox his name was.
Q. Do you know what time he voted? — A. I think in the afternoon; along to-
ward night. I should say.
Q. Well, tills Hungarian that Mr. Rogers assisted, he came in and got his
ballot: aske<l for a ballot and it was given him? — A. Yes, sir.
Q. And he went in the booth? — A. Yes. sir.
Q. And came out of the booth and asked for assistance? — A. Yes, sir.
Q. He was not blind?— A. No, sir.
Q. He was not physically incapacitated in any way that you saw?— A. No. sir;
only he couldn't read : that Is all.
Q. Did you or your board or any member of It there that day submit to you
any oath before Mr. Rogers gave him any instructions? — A. No, sir.
Q. Mr. Rogers was the only man that went in the booth with that Hunga-
rian?— A. Yes, sir.
Q. Did that Hungarian deposit his ballot there that day after Mr. Rogers had
instructed him or went in the booth with him? — A. Yes, sir.
Q. Was it deposited in the ballot box witli the other ballots?— A. Yes, sir.
Q. W^as it the general ballot for candidates, including the candidates for CJon-
gress? — A. Yes, sir,
Q. That that Hungarian voted there that day? — ^A. Yes, sir.
Q, What did you do or were you doing as an inspector there at tliat particular
time? Were you handing out ballots? — A. I was depositing ballots.
CARNEY VS. SMITH. 265
Q. You had charge of the ballot box. putting the ballots In as the voters
handed them to yooV — ^A. Yes, sir.
Q. Neither Hungarian asked for Instructions? — A. He Just asked about mark-
ing his ballot.
Q. What did he ask? — A. He Just asked if he should put a cross in front of
this name if he wanted to vote for that man ; that is what he asked.
Q. And Mr. Hall Instructed him?— A. I think it was Mr. Hall, I don't re-
member which one of the board.
Q. What did Mr. Hall say to him? — A. To put a cross in front of the name he
wanted to vote for.
Q. Was there any oath administered to that man, to that Hungarian? — ^A.
No. sir.
Q. The other Hungarian's name was Simcox? — ^A. He was not a Hungarian;
that particular man was an Englishman ; he has lived here quite awhile, but he
only took his certificate out some two years ago. We call them all Hungarians
that work down there.
Q. Mr. Hoyt voted in the afternoon, didn't he? — ^A. Mr. Hoyt voted in the
morning.
Q. And Simcox voted in the afternoon? — A. I think Simcox voted in the
afternoon.
Q. What time in the afternoon? — ^A. I couldn't tell you.
Q. Approximately, as near as you can tell? — A. I couldn't tell you.
Q. Two o'clock? — ^A. I don't know anything about it. The reason, I think, they
voted in the afternoon was that most of the men there vote in the afternoon.
Q. This Hoyt that testified this morning was Dfin Hoyt? — ^A. A. B. Hoyt.
Q. A. B.?— A. Yes, sir.
Q. What time in the afternoon did Mr. Kimberly vole? — A. It was after I got
back from dinner; I went at 1 o'clock and got back about 1.30 and he came soon
after, but I couldn't tell exactly when.
Q. I show you Exhibit 16 — the poll book of that election there in Bellevue —
and I ask you whether under the heading ''List of voters" it does not appear
that Orrin Kimberly, sr., was No. 439 — was the four hundred and thirty-ninth
man to vote according to that poll book? — A. There is O. R. Kimberly, Jr.
Q. That looks like senior; is that correct? However, Orrin Kimberly, sr.,
voted No. 439?— A. Yes, sir.
Q. There were only 464 votes cast in that voting place on that day? — ^A.
Yes, sir.
Q. Ed. Slmcox's number on the list of voters is the one hundred and eighty-
fifth man voting that day; is that correct? — A. Yes. sir.
Q. Mr. Simcox must have voted in the forenoon, didn't he? — A. I should say
he did from the looks of that.
Q. So you probably were mistaken as to the time when Mr. Simcox voted? —
A. It must be.
Redirect examination by Mr. Fellows:
Q. These Hungarians, the men you call Hungarians, were they all registered
voters?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, and
not the best evidence.
A. If they were voters, they were registered voters.
Q. Was there anybody permitted to vote there who was not registered? — A.
No. sir.
Q. These men were naturalized citizens? — A. Yes, sir.
Recross-examlnation by Mr. Adams :
Q. How do you know they were naturalized citizens? — A. Well, we are pretty
particular about registering
Q. (Interrupting.) No; how do you know they were naturalized citizens?
Did you see their naturalization papers? — A. I did not.
Q. The only way you could tell whether they were naturalized citizens would
be by order of the circuit court or some authority that had naturalized them? —
A. Yes, sir.
Q. So you simply assumed they were naturalized citizens without seeing those
certificates of naturalization; you simply assumed they were naturalized; is
that true? — ^A. Yes, sir.
Q. Now, I suppose you had a registration book there to the polls that day? —
A. Yes sir,
Q. Who had charge of that?— A. I think it was Mr. Hall; I will not say.
266 CARNEY VS. SMITH.
Q. If a man who was a registered voter sliould come in there to vote, his name
would appear there on that registration book? — ^A. Yes, sir.
Q. You didn*t look at that to see whether these Hungarians were registered
yourself, did j'ou? — A. No, sir.
Redirect examination by Mr. Fellows :
Q. Were these Hungarians?
Mr. Adams. I object to it as irrelevant and iuinmterial.
A. No, sir.
Q. How long had they lived there?
Mr. Adamb. I object to it as irrelevant and inimaterial.
Q. Have you known them for some time? — A. Yes, sir.
DANIEl^ HALU being first sworn to tell the truth, the whole truth, and noth-
ing but the truth, testified in behalf of the coutestee as follows:
Direct examination by Mr. Fellows:
Q. Mr. Hall, where is your home? — A. Bellevue.
Q. How long have you lived there? — A. Thirty-one years.
Q. Have you any ofiicial position there In that township? — ^A. Yes. sir; a Jus-
tice of the peace.
Q. As such Justice of the peace, did you sit on the board of election, the No-
vember election, 1912? — A. Yes, sir.
Q. Are you acquainted with Orrin Kimberly? — A. Yes, sir.
Q. How long have you known him? — A. Since I have been old enough to
know the people around the township.
Q. You knew that on November 5 he was afflicted with blindness? — ^A. Yes,
sir.
Q. And had been totally blind for a great many years? — A. I suppose he has.
Q. Do you remember the circumstance of his coming to vote? — A. Yes, sir.
Q. Just tell what he did. — A. I took Mr. Kimberly through a number of
times. I saw him coming to the gate and I recognized him and went to the
gate and took him. We had a fence along so they had to pass through a narrow
passage about (> feet.
Q. That is going in from tlie outside? — X. Going in tlirough the gate they
go into a narrow passage that extends on the other side of the fence to pass
out the tickets. When he came into the gate I handed him his ticket and took
him by the arm, he on one side of the fence and I on the other and led him to
the end of the fence and then took him into the first booth.
Q. Did he tell you what he wanted to vote? — A. Yes, sir.
Q. What did he tell you?
Mr. Adams. I object to that as incompetent, iri'elevant, and immaterial.
A. He said he was not posted on any of the candidates In any way and he
was not able to see and was not able to read and he voted as he always had
for the straight Democratic ticket.
Q. Did you mark a straight Democrat ticket for him? — A. Yes, sir.
Q. What did you do with it?— A. After I markeil It I folded it up properly
and gave it back to him and took him by the arm and led him through the back
booths to the place to dejjosit his ballot.
Q. Did you give him, Mr. Weed, the identical ballot you had prepared for
him? — A. Yes, sir.
Q. And that ballot was prepared exactly as he asked you to prepare It?— A.
Yes, sir.
Q. Who brought Mr. Kimberly there, if you know?— A. I don't remember; 1
Just recognized him at the gate.
Q. Did Mr. Kimberly request you to help him? — A. Y'es, sir.
Q. And you did so? — ^A. Yes, sir.
Q. Were there any challengers tiiere for either one of the parties? — A. No, sir.
Q. Nor any of them? — ^A. No, sir.
Q. Did Mr. Hoyt bring .Mr. Kimberly there?— A. I didn't see him.
Q. Do you rememlier when Mr. Hoyt voted or remember of his votUig?— A.
He voted, I think, early in the morning.
Q. Did you see him at the polls again that day? — A. No, sir.
Q. Do you know these Hungarians that have been mentioned? — ^A. Yes, sir.
Q. How long have they been there?— A. They have worked there a number
of years.
Q. Registefed voters, are they? — A. Yes, sir.
CARNEY VS. SMITH. 267
Mr. Adams. I move to strike that out that they were registered voters as in-
competent and calling for the conclusion of the witness and not the best evi-
dence of the fact.
Q. State what occurred?. — ^A. One of them asked for instructions and Mr.
Rogers went in the booth with him. They simply stepped out of the booth after
be went In there and received his ballot and asked how be should mark in front
of a man's name to vote for that man and I think I answered that question,
and he went back to the booth. I suppose, and voted.
Q. He marked his own ballot? — ^A. Yes, sir.
Q. Was there any electioneering done around or in the polls? — A. No, sir; I
didn't hear any.
Q. About soliciting votes for John M. C. Smith or anybody else? — A. No, sir.
Q. Did any member of the board as far as you heard or saw? — A. No, sir.
Q. Was the election fair? — ^A. In every way; yes, sir.
Mr. Adams. I object to that question and ask that the answer be stricken
out as incompetent, irrelevant, and immaterial and calling for the conclusion
of the witness and no fact stated.
Q, Who were the gatekeepers there? — A. Ed. Johnson kept the gate where
tbey came in. and Steve Evans the other gate.
Q. What were their politics? — A. They were both Democrats.
Q. After your board had completed the canvass of the votes what did yeu do
with the returns? — ^A. They were signed and sealed.
Q. Sealed in what manner? — A. By wax, melted wax, and used the township
seal.
Q. I will ask you if two sets of thope returns were made out, one to the
county clerk and the other to the judge of probate or board of county can-
vassers, care Judge of probate or register of probate? — A. Yes, sir.
Q. I show you Exhibit 9 and the seal on the back. Was that sealing wax
pot on them by your board after you had put in the returns and completed your
canvass? — A. Yes, sir.
Q. Was the seal of the township impressed in the wax when it was hot?
Mr. Adams. I object to that as leading.
A. It was; yes, sir.
Q. And when they left the hands of the board were both of these envelopes
sealed tight with the sealing wax? — A. They were.
Cross-examination by Mr. Adams:
Q. I call your attention, Mr. Hall, again to Exhibit 9. an envolo|)e addressed
to the board of county canvassers, care of the Judge of probate or register of
probate. The printing on this enveloi)e says, ** This envelope contains one
return of statement of votes, the result of the election held in Bellevne Town-
ship, county of Eaton, State of Michigan," and the iwst-office mark " Bellevue,
Mich., the 6th day of November, 1912, register." On the back of the envelope
under the envelope flap or fold you will notice it says, " Kec'd unsealed by car-
rier No. 4, Hall "; does it not?— A. Yes, sir.
Q. When Mr. Kimberly came in that morning of that day to vote — this blind
man — you started right out as soon as you saw him coming through the gate to
assist him? — ^A. Yes, sir.
Q. Anybody on tie board tell you to do that? — A. No, sir. I have done that
a great many times.
Mr. Adams. I move to strike out the answ^er as not responsive to the question.
Q. Yon were not designated by the election board there to go in and assist
Mr. Kimberly there that day, were you? — A. I don't understand the question.
Q. The board did not, or any member of the board, designate you to give help
to Mr. Kimberly to vote that day, excei)t yourself? — A. Thnt Is all.
Q. Yon went oh your own motion entirely to give him that assistance? — A.
Yes, sir.
Q. You went into the booth with Mr. Kimberly, this gentleman who was
blind, to assist him, as you have stated on your direct examination, to mark a
ballot?— A. Yes, sir.
Q. And marked the ballot for him? — A. Yes. sir.
Q. That ballot was deposited there and voted and was one of the ballots that
was counted? — A. Yes, sir.
Q. In the count that was made of the votes cast in that voting place on that
day? — ^A. Yes, sir.
Q. You saw that ballot deiwsitetl in the ballot box? — A. Yes, sir.
268 CARNEY VS. SMITH.
Q. Did you deposit it?— A. No, sir.
Q. Now, you had two gatekeepers there that day, I understood you to say? —
A. Yes, sir.
Q. One of those gatekeepers by name was Ed. Johuson? — A. Yes, sir.
Q. I understood you to say on your direct examination that he was at that
time a Democrat, as you understood It? — A. Yes. sir ; as near as I could get at it.
Q. You told the attorney general that he was a Democrat? — ^A. He is con-
sidered a Democrat, and I consider him a Democrat
Q. S. B. Evans was another gatekeeper there that day? — ^A. Yea, sir.
Q. I understood you to tell the attorney general that Mr. Evans was a
Democrat? — ^A. I consider him a Democrat.
Q. Do you know whether he was enrolled as a Democrat just prior to that
election? — ^A. He was; yes, sir.
Q. You did not ask either Mr. Johnson or Mr. Evans to go in the booth with
you when you marked Mr. Kimberly's ballot? — A. No, sir.
Q. They were sworn, both Mr. Evans and Mr. Johnson, as gatekeepers? — ^A.
Yes, sir.
Q. You didn't ask either of them to go Into the booth when you went In to
mark Mr. Klmberly's ballot? — A. No, sir.
Q. You went In alone with him? — ^A. Yes, sir.
Q. Nobody else was In there with you when you marked his ballot? — ^A.
No, sir.
Q. At no time when Mr. Klniberly wns in that booth that day, you say, you
called no one in that booth? — ^A. Yes, sir.
Q. Now, where were the ballots passed out to the voters that day when
they came in and asked for ballots? — A. As soon as they came through
the gate they came into the little lane made by the fence, and we passed the
ballots over the fence as they came in there.
Q. Were the ballots passed out by whoever did pass them out In the Imme-
diate presence of the other members of the board? — A. Yes, sir.
Q. Was there anything between the man who passed out the ballots to ob-
struct the view from the other inspectors of election? — ^A. No. sir.
Q. You instructed one Hungarian there that day, did you? — ^A. Yes, sir.
Q. What was his name? — ^A. Slmcox.
Q. Where did you give him instructions? — A. He just stepped out of the
booth about 2 feet from me and asked for instructions.
Q. Did he show you the ballot? — A. No, sir; and I don't know but he did.
Q. Did he have any marks on the ballot at that time he showed It to you?
A. No. sir.
Q. Didn't he mark It at all when in the booth up to the time he asked you
for Instructions? — A. No, sir.
Q. Did he mark It In your presence? — A. No, sir.
Q. Did he go back Into the booth? — A. Yes, sir.
Q. When he brought the ballot out, did he bring the ballot out to deposit and
hand It to be put in the ballot box? — A. I don't remember: that was quite a
little ways to where they had to deposit the ballots.
Q. Was It within your view? — A. Yes, sir.
Q. It was where you could see if you looked? — A. I might have seen it; I
don't remember.
Q. If you had been looking, you could have seen it that distance — no obstruc-
tion— so you could have seen whether he came out with the ballot or not?— A.
Yes, sir.
Q. If you had been looking at the time? — A. Yes, Mr.
Q. You didn't go Into the booth with the other Hungarian, did you : I mean
the other Huugarian? — A. No, sir.
Q. I mean the other man who asked for instructions? — A.. No, sir: Mr.
Rogers went in with him.
Q. Rogers went In with him alone?— A. Yes, sir.
Q. He was not sworn as to whether or not he could read the English lan-
guage, was he. that Hungjirian that Rogers went in with? — ^A. No. sir.
Q. You didn't hear anything of that kind done? — ^A. No, sir.
Q. Rogers just went in with him and was in the booth with him? — A. Yes,
sir.
Q. And that Hungarian voted a ballot there that day, did he? — ^A. Yes. sir.
Q. And deposited it In the ballot box ? — A. Yes, sir.
Q. It was among the ballots counted thai; day? — ^A. Yes, sir.
OABNEY VS. SMITH. 269
CORTEZ GUSHING, being first duly swom to tell the truth, the whole truth,
and nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Fbankuauseb:
Q. Where do you reside ?—A. Oarmel township.
Q. How far is that from Charlotte?— A. From where I live?
Q. Yes. — ^A. About 4i miles.
Q. How long have you lived in Carniel township?— A. Practically all my life.
Q. How old are you? — ^A. Thirty-five.
Q. You are a Democrat in politics?— A. Yes, sir.
Q. And was on the 5th of November, 1912?— A. Yes, sir.
Q. And voted a Democratic ticket?— ^A. I did.
Q. Were you subpoenaed by Mr. Carney when he was putting in his evidence
in this case? — ^A. I was.
Q. After being interviewed you were not swom by the other side?— A. No,
sir.
Q. You attended the taking of the testimony, did you?— A. I was here two
days, I think.
Q. Now, what did you start out to do there that day, what official position
did you hold there that day, on election day, November 5, 1912?— ^A. I was the
challenger for the Democratic Party.
Q. In the forenoon; you were there all the forenoon, were you? — ^A. Yes, sir.
Q. Inside of the railing? — ^A. Not inside of the railing.
Q. Not where they voted? — A. No, sir.
Q. You were not outside? — ^A. Yes, sir.
Q. You understood you had a right to be inside? — A. I was inside of the
railing when someone asked for help.
Q. Speaking about the afternoon there, what did you do in the afternoon? —
A. I was swom in as an inspector and helped count the ballots.
Q. Did you sign the book as such? — ^A. Yes, sir.
Q. Who swore you? — ^A. Mr. Huber.
Q. Who was he? — ^A. He was a Justice of the peace.
Q. Who else were swom there as an additional inspector? — ^A. William
Clements.
Q. Was there anybody else sworn in? — A. Not that I know of.
Q. Now, what was the occasion of swearing you and Clements in in the
afternoon? — ^A. To count the ballots.
Q. Tell how it came up, as far as you saw and understood it. — A. I heard
someone say that the ballot box was full and they had about so many to finish
up the votes with. Mr. Huber asked me if I would help count the ballots if
they opened the box and I said I would.
Q. Were there other people there besides the board and the clerks? — ^A. Yes,
sir.
Q. I wUl ask you whether the conversation about opening the box was quite
general there?
Mr. Adams- I object to that as leading and calling for the conclusion of the
witness and incompetent.
Q. Was the talk there about the necessity that existed for opening the box?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. There was some talk ; yes, sir ; I heard some of that talk.
Q. Now, what kind of a box did they have that day? — ^A. Why, it was a
metal, box about 14 or 15 inches In diameter and about 2i feet high.
Q. What is called a patent box? — ^A. I don't know what they call it, it was
made on purpose for that.
Q. How does it work? — ^A. There is a crank attachetl with some rollers
which rolls the tickets through into the box.
Q. It works something like a clothes vr ringer; that is, two shoulders opposed
to each other? — A. On the same principle; yes, sir.
Q. You put the tickets in between the two rollers? — ^A. Yes, sir.
Q. Did you personally see, of your own knowledge see, whether or not that
box was getting filled up? — A. Why I couldn't see in the box; no, sir.
Q. You didn't see the difficulty they had, of your own knowledge.
Mr. Adams. I object to his saying there was some difficulty as incompetent
A. (No answer).
Q. Now, Mr. Gushing, who asked you to assist in the count?— A. Mr. Huber.
Q. Do you remember whether there was a man there named Julius D. Mis? —
A. Yes, sir.
270 CARNEY VS. SMITH.
Q. Did you know lilm?— A. Yes, Bir.
Q. Is he quite a prominent Democrat? — ^A. Yes, sir.
Q. What was he a candidate for last fall V— A. Register of deeds at that elec-
tion.
Q. Register of deeds of the county? — ^A. Yes, sir.
Q. As you understood it? — ^A. Yes, sir.
Q. Did you hei'.r him say anything al)out opening the box? — A. I heard Mr.
Tluber ask him what he thought about it.
Q. What did he sjiyV
Mr. Adams. I object to it as incompetent, irrelevant, immaterial, and hearsay ;
what anybody said, particularly what Mr. Ells may have said, if anything.
A. He said' as far as he was concerned it would not make any different-e with
him if somebody else didn't make a kick.
Q. Was there a man named Si>encer there at that time?— A. He was there
some of the time through the day, I don't know whether he was there at that
time or not.
Q. Anyway It was decided to open the box to make room for further voting?—
A. Yes, sir.
Q. Now you and Mr. Clements were sworn In there then? — ^A. Yes, sir.
Q. Just tell what occurred after you were sworn In? — ^A. Mr. Huber and I
sorted out the straight tickets and put them In separate piles and counted them,
and marked the number and the parties each one was for on the back and
rolled them up in rolls and laid them back.
Q. You didn't use the tally sheet for that purpose at that time? — ^A. No, sir.
Q. Who unlocked the box? — A. Mr. Griffin.
Q. Was he supervisor of the township? — ^A, Yes, sir.
Q. After you counted the straight tickets, you and Mr. Huber, then what did
you do? — ^A. We began checking up the split tickets.
Q. Now how did you do that, who was present around that table when you
did it? — A. We had two small tables there and Mr. Huber read the names oil
the tickets and Mr. Clements and myself kept the count in a tally book.
Q. I show you Exhibit 17 and ask you whether that is the tally-sheet book
you kept or the one kept by Mr. Clements? — A. It looks like my writing.
Q. Look it through and see. — A. It api)ears to be my figures; yes, sir.
Q. I now call your attention to iwges 12 and 13 of this book, to the words
''Representative in Congress" and I will ask you whether the number of votes
received by John M. C. Smith was correctly counted, 137? — ^A. It foots up
right
Q. Whether that is correct as you found it there that day? — ^A. I don't re-
member what we found that day,
Q. Look this over to refresh your recollection.
Mr. Adams. I object to the question, what he fotmd that day, as Incompe-
tent, irrelevant, and immaterial.
Q. How many straight votes did John M. C. Smith have, from your recollec-
tion or as shown by the exhibit? — ^A. I have no recollection about it.
Q. The exhibit shows 70. — A. Yes, sir.
Q. How many straight votes did Claude S. Carney receive? — A. The book
shows 60.
Q. Look over the tallies of the split tickets and see If that is correct as
shown by the tally sheet. How many did John M. C. Smith have? — ^A. Accord-
ing to the tally sheet, 67.
Q. How many did Claude S. Carney have? — ^A. Twenty-two.
Q. Is that shown by the tallies I have called your attention to here?— A.
Yes, sir; it la
Q. Then, if the vote for John M. C. Smith was 137 and for Claude S. Carney
82, is that correct as to the number of votes that each received there that day
in Carmel Township, as far as your knowledge of that election goes? — ^A. Accord-
ing to the book; yes, sir.
Q. According to the book, that is. Was there anything occurred there that
makes you doubt the correctness of those figures?
Mr. Adams. I object to that as Incompetent, Irrelevant, and immaterial, and
calling for the conclusion of the witnesa
Mr. Frankhauseb. I will withdraw the question.
Q. Is 137 the number of votes which you found that John M. C. Smith
received there that day growing out of the part you took in that election^
A. I don't remember anything of it, except the book — I don*t remember askle
from that.
CABKET VS. SMITH. 271
Q. Have you apy reason to doubt whether that Is the right number or not?
Mr. Adams. Objected to as incomi)etent, Irrelevant, and immaterial.
Mr. Fbankhauseb. I will withdraw that.
Q. Did you tally correctly as the mimes were read to you?— A. I did.
Q. The result was 137. was it? Are those figures 137 your figures?— A. Yes.
air.
Q. Did you put them down as the result of keeping the tally there that day. —
A. Yes, sir.
Q, Are those 82 your figures ?^A. Yes, sir.
Q. Were those put down honestly by you as the result of your tally? — ^A. Yes,
sir.
Q. Now. as I understand It, Mr. Huber read off the names and you and Mr.
Clements kept (he tally books? — A. Yes. sir.
Q. You kept one and he kept one? — ^A. Yes, sir.
Q. Did you get through with your 2 o'clock count, as we will call it, at the
time the polls closed? — ^A. No, sir.
Q. You had some ; about how many did you have to count, if you remember,
at 5 o'clock, of the votes that were cast prior to 2 o'clock? — A. I don't remember,
exactly; there were only a few left.
Q. Was there any result announced to the public there by you or anyone
else in your hearing? — A. No, sir.
Q. At the time the polls closed? — ^A. No, sir.
Q. Did anybody, to your knowledge, get the figures from you or Mr. Clements
on the tally sheets and pass it out among the public? — ^A. Not that I know of.
Q. Did you yourself know at 5 o'clock how it stood, except on the straight
votes? — ^A. No, sir.
Q. Did anybody know, as far as you know, how that vote stood at 5 o'clock? —
A- No, sir.
Q. In what tone of voice did Mr. Huber read the names off — ^a loud or an
ordinarj' tone? — ^A. Loud enough so the two clerks could hear them.
Q. So you could tell from the reading. Did you keep some tab at the time
so you knew how the votes stood? — A. No, sir; I could not.
Q. Now at 5 o'clock, when the polls closed, did you continue to tally until
yoo got through? — A. Yes, sir.
Q. What did Mr. Clements do? — ^A. Shortly after the polls closed he had to
go home, and Mr. Cole took his place.
Q. Cole and you then did the tallying? — A. Yes, sir.
Q. Did anybody assist you two in tallying? — A. No, sir.
Q. What part did Mr. Martin take after the polls closed? — A. I don't know
what he did do.
Q. Who did the reading all the way through of the ballots?— A. Mr. Huber, I
think.
Q. Did anybody else read that afternoon at all? — A. I don't think so.
Q. About what time did you get through with the election? — ^A. Do you mean
counting the ballots?
Q. Yes, sir. — ^A. Something after 11 o'clock.
Q. Was the result declared about 11 o'clock? — A. Yes, sir; it was read off.
Q. Who read it off?— A. Mr. Huber, I think, did.
Q. Now, Mr. Cushing, was there anything occurred there at that election
that was not fair and square as far as you know, as far as the count went?
Mr. Adam. I object to that as incompetent, irrelevant, and immaterial, and
calling for the conclusion of the witness.
A- As far as I know, we all did the best we could.
Q. The question is, Was there any fraud that you know of?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, and
calling for the conclusion of the witness.
A. Not that I know of.
Q. Were there any votes counted for Mr. Carney, as far as you participated,
that he was not entitled to, or for Mr. Smith?
Mr. ABAifS. I object to that as Incompetent, irrelevant, and immaterial, and
calling for the conclusion of the witnesa
A. Not that I know of.
Q. Did Mr. Carney, as far as you know, receive every vote that was cast
for him?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and call-
ing for the conclusion of the witness.
A. As far as I know he did.
272 CARNEY VS. SMITH.
Q. Did John M. C. Smith receive any votes tliat you know of tbat should
have been counted for Claude S. Carney?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and call-
ing for the conclusion of the witness.
A. No, sir; not that I Icnow of.
Q. Now the board that day was made up of Mr. Griffin, the supervisor; Has
bert Shaver, Justice of the peace; W. L. Huber, Justice of the peace; and D. C.
Cole, township clerk ; is that correct? — ^A. Yes, sir.
Q. This Wilbur C. Martin acted as clerk?— A. Yes, sir.
Q. Who else, anybody else?— A. I don't think so.
Q. Then there was Mr. Martin and Mr. Cole acting as clerks, and Mr. Griffin,
Mr. Shaver, and Mr. Iluber acting ns inspectors? — ^A. Yes, sir.
Q. Then they swore you and Mr. Clements in as two additional inspectors?—
A. Yes, sir.
Q. As I understand you now, Mr. Cushing, you had nothing to do with the
receiving of the ballots or distributing them among the voters or anything of
that kind?— A. No, sir.
Q. You did nothing about the count except you and Mr. Huber straightened
out and counted the straight ballots? — ^A. That is all.
Q. You had nothing to do with counting the split tickets?— A. Nothing but
tally.
Q. You didn't touch the tickets yourself? — ^A. No, sir.
Q. That was done by Mr. Huber? — ^A. Yes, sir.
Cross-examination by Mr. Adams :
Q. I understood you to say, Mr. Cushing, that Mr. Huber started in when you
began the count about 2 o'clock that day and read off the ballots? — ^A. Tes, sir;
he read off the split baUots.
Q. Did he do all tbf5 reading that was done there up to the time the polls
closed, or did some other man take his place In reading? — ^A. No, sir, I think he
did it all.
Q. I umlerstoiKl you to say that after you got through the count at night
about 11 o'clock, you think Mr. Huber read off the result? — A. Yes, sir,
Q. Aloud?— A. Y'es. sir.
Q. Did he road the vote that each candidate had received there that day? —
A. Yes. sir, he did.
Q. How long did it take him to read it? — A. I don't remember how long it
took; he read the figures off so we could copy them down in the books, the
totals.
Q. So you could copy them down on the books? — A. Yes. sir.
Q. You and Mr. Clements were the only fellows who had the figures, were
you? How could he read the figures off without you first gave them to him,
you had the tally, didn't you? — A. We had the tally sheets.
Q. You had the figures too, didn't you? — ^A. I think we did.
Q. Then Mr. Iluber could not very well have given you the figures when you
and Mr. Clements kept the tally and had the figures? — A. It is my recollection
each one tiguretl up the books and compared them to see they were alike.
Q. Who do you mean by each one? — ^A. Myself and Mr. Cole, then I think
Mr. Iluber took those numbers down as we went along; then we copied them
in as he read them off, comparing them first.
Q. When you were sworn in as inspector, as you say you were, Gordon
Griffin was there acting as inspector? — A. Yes, sir.
Q. Ami was Mr. Shaver pretending to act as inspector there at the time you
were swoni in? — A. Yes, sir.
Q. Who else was pretending to act as in»i)ector there at the time you were
sworn in? — A. Mr. Iluber.
Q, And Mr. Cole was acting at the time yon were sworn in as one of the
clerks — A. Yes. sir.
Q. He was the township clerk? — A. Yes, sir.
Q. Wilbur C. Martin at the time you were sworn In was also acting as
clerk there, was he not? — A. Yes, sir.
Q. So D. C. Cole and Wilbur C. Martin at the time you were sworn in as an
inspector were acting as clerks of that election? — ^A. Yes, sir.
Q. Gordon Grlflin. W. I^. Huber and Herbert Shaver were assuming to act as
inspectors of that election? — A. Yes, sir.
Q. When you were sworn in as an insi)ector, there was a full board th^'e,
as you understood it, election board? — A. Yes, sir.
CABNEY VS. SMITH. 273
Q. Every niau was there In his place? — ^-V. Yea, sir.
Q. Who did you say asked you to act as Inspector? — A. Mr. Huber.
Q. That is one of the men who was acting as Inspector prior to that time on
tliat day, asked you to act as inspector? — ^A. Yes, sir.
Q. There was some people there I suppose In the voting place at tlie time you
were asked to act as inspector? — A. Yes. sir.
Q. That is. I mean by that question, there were others t^^ere, bystanders,
electors of the township of Carmel were in that voting place at the time
Mr. Huber asked you to act as Inspector? — A. Yes, sir.
Q. At the verj' time you were sworn In as inspector? — ^A. Yes, sir.
Q. There were other people there, electors, who were not members of that
election board who were standing around when you were asked to act as
inspector? — A. Yes, sir.
Q. And at the time you were sworn in as an inspector? — A. Yes, sir.
Q. Now, the people did not at any time elect you as an inspector — that is,
thp electors, men who were not acting on the election board, did not elect you
to act as Inspector? — ^A. No, sir.
Q. The people who were there, electors, those who were not acting upon the
election board up to that time, did not then and there elect William Clements
to act as inspector there that day ? — ^A. No, sir.
Q. Who requested Mr. Clements to act? — A. I don't know.
Q. Was there any vote taken there by the bystanders, electors, who were
not members of that election board, any motion made that you or Mr. Clem-
ents or either one or both of you shoidd act as an addiUonnl inspector or
inspectors there that day? — A. No, sir.
Q. So that yourself and Mr. Clements acteil and were sworn in as inspectors
there that day on the request of W. Ij. Huber, one of the then insi)ectors of
that election? — A. Yes, sir.
Q. That is all the action that was taken to select you two men as inspectors
of that election, namely, the request of W. L. Huber? — A. That is all I
know of.
Q. Upon his request, and that alone, yourself and Mr. Clem^its were sworn
in by W. Ij. Huber to act as inspectors of that election? — A. Yes, sir.
Q. That is correct? — ^A. As far as I know ; yes, sir.
Q. Mr. Clements, you say, went home shortly after 5 o'clock? — A, Yes, sir.
Q. Do j'ou know how many ballots there were in this ballot box you opened
about 2 o'clock that afternoon when you began to count? — A. I don't know.
Q. Well, approximately, can't you give us any idea? — A. I don't believe I can
come very near to it.
Q. There were 239 votes cast there that day, were there not? — ^A. Something
like that.
Q. I call your attention to Exhibit 27, which is the poll book you used there
that day and ask you to state from that book now, look at it, on page 10,
whether the total number of votes cast there that day for Representiitlve in
Congress and other candidates for office were only 239? — A. Two hundre<l and
thirty-nine.
Q. That is correct. Is it not, as shown by the book? — A. Yes, sir.
Q. And that according to your best recollection was the total number of
votes that were cast there that day for the candidates, for any of the candi-
dates for office at that election up to the time the polls closed at 5 o'clock? —
A. Yes, sir.
Q. What part of those 239 votes would you say, your best recollection is,
were contained in this ballot box that you opened at 2 o'clock that afternoon
and began to count? — A. About three fourths of them.
Q. You saw this ballot box opened at 2 o'clock, did you? — ^A. Yes, sir.
Q. When it was unlocked, who unlocked itV — A. Mr. Griffin.
Q. Did you look in before the ballots were taken out to see how full it
was? — ^A. I could see when they had the cover off.
Q. When they took the cover off, was it full or not? — A. They laid in there,
I thought it was not near full ; a few more could have been put in.
Q. As counsel asked you when the ballots were put in there, they were
palled in with a couple of rollers? — A. Yes, sir: little wheels, I don't re-
member.
Q. If the ballot was put into those rollers, there was a little handle or
crank to turn so that would grind the ballots through those rollers into the
box? — A, Yes, sir.
286—13 ^18
374
CARNEY VS. SMITH.
Q. The tendency of that would be to crowd the ballots down as additional
ballots were put through those rollers?— A. Yes, sir.
Q. You could crowd that ballot box more full of ballots with those rollers and
the crank to grind them through, in your Judgment, than you could get hi a
ballot box that dldn t have those rollers in ; simply had a slot to shove the bal-
lots down in; it would force them through and pack them down?— A. I think It
i/vould.
Q. You finished the count there about 11 o'clock at night?— A. Yes. sir:
about that. o -» ,-
Q. Did you enter all the tallies or any of the tallies that appear here opposite
the name of John M. C. Smith and Claude S. Carney, for Representative in Con-
gressV I mean the marks, now— not the figures.— A. I think I did; yes, sir.
Q. Are the figures opposite the names of John M. C. Smith and Claude S:
Carney, who were cjindidates, respectively, for Representative In Congress, in
your handwriting or not?— A. I think they are.
Q. Where were the returns signed that day, if you know?— A. I don't know.
Q. VVhat time was Exhibit 27, the poll-book certificate, made out?— A. In the
afternoon after we finished counting.
Q. About what hour?— A. About 11 o'clock.
Q. When you finished counting that night about n o'clock was Gordon GrlfBn
there?— A. I think he was.
Q. Was W. L. Huber there?— A. Yes, sir.
CJ. Was Herbert Shaver there?— A. I think so; yes, sir.
Q. I notice on this certificate, on this particular Exhibit 27, that the certifi-
cate was not signed by W. I.. Huber, but was signed by Gordon GrifiJn, Cortez
Cushlng, and Herbert Shaver. Do you know why Mr. Huber did not sign that
certificate that night when you got through with that count?— A. I do not.
Q. Mr. Huber was one of the lnsi)ectors, as I understand your testimony ; he
helped count from beginning to the end the votes that were cast there that
day. — ^A. He and myself.
Q. Mr. Griffin didn't help count all the votes?— A. No, sir.
Q. He didn't help count any of the votes that were ccunted from 2 o'clock, or
that were counted from 2 oVlock that jifternoon up until 5 o'clock that afternoon
when the polls closed? — A. No, sir.
Q. Mr. Shaver didn't help count any of the ballots that were counted there
from 2 o'clock In the afternoon up to the time the polls closed at 5 o'clock
that afternoon? — A. No, sir.
Q. Mr. Cole didn't— the townshii> clerk, D. C. Cole, didn't help count a single
ballot from 2 o'clock that afternoon up to 5 o'clock that afternoon, did he?—
A. No, sir.
Q. Did you help count the ballots that were counted after 5 o'clock?— A.
I did.
Q. And up to the time the count was finished there? — ^A. Yes, sir.
Q. You simply kept the tally?— A. Yes, sir.
Q. That is what you mean by helping to count? — ^A, Yes, sir.
Q, All you did from beginning to end, as far as the counting of the ballots
was concerned, on that election day was simply to put down the tallies that
somebody else called off? — A. I heli)ed count the straight ballots when we first
commenced at 2 o'clock.
Q. Those were the only ones you looked over and counted? — A. Yes, sir.
Q. You didn't look over the ballots yourself? — ^A. No, sir.
Q. So whether they were called off correctly or not you don't know? — ^A.
No, sir.
Q. W. L. Huber was the only member of that board that day who saw all the
ballots that were cast there when you were counting them? — A. I think so.
Q. Now there were, as appears by the tally sheet book of that election there
in that township that day, I^xhiblt 17, John M. C. Smith had 70 straight votes
for Representative in Congress, didn't he? — A. Yes, sir.
Q. It api)ears by that same exhibit Claude S. Carney had 60 straight votes
for Representative In Congress? — A. Yes, sir.
Q. Now those straight votes for John M. C. Smith and Claude S. Carney were
the only ballots that you examined there that day? — A. I didn't examine all of
those.
Q. You did not?— A. No, sir.
Q. Now, as appears by this Exhibit 17. opposite the name of John M. C.
Smith, Representative In Congress, it appears that he had 67 split votes?— A.
Yes, sir.
CARNEY VS. SMITH. 275
Q. Now, Claude S. Carney, opposite his name as a candidate for Repreeenta-
tlTe In Congress, by this E^xhibit 17, It appears that he had 22 split votes? — ^A.
Yes, sir.
Q. Now those 67 votes for John M. C. Smith — split votes — ^and 22 split votes
for Claude S. Carney, you didn't examine those ballots at all, did you? — ^A.
No, sir.
Q. Somebody else examined them ; Mr. Huber, or some one else who called off
to you and you put down the tallies? — A, Yes, sir.
Q. You didn't examine the ballots? — A. No, sir.
Q. For those, split votes? — A. No, sir.
Q. Were any instructions given to any voters there that day? — A. Yes, sir.
Q. Let us see; before 2 o'cloclc you acted as challenger for the Democratic
Party? — A. Yes, sir.
Q. At that voting place? — ^A. Yes, sir.
Q. What time did you get there in the morning? — A. At 7 o'clock.
Q. Were you there continuously from the time you got there at 7 o'clock
in the morning of that day up to the time you began to act as inspector at 2
o'clock in the afternoon? — ^A. Except one hour at noon.
Q, Did the l>oard adjourn an hour at noon? — A. Yes, sir.
Q. What did they do with the ballot box when they adjourned at noon, that
is, the ballot box in which the ballots had been deiioslted up to that time? —
A. I think some of the election board put inside the books what we used.
Q. Were they all put inside of the box? — A. I couldn't sjiy as to that.
Q. Who put them inside of the box, or any of them? — A. I think Mr.
Griffin did.
Q. How did they get them inside of the ballot box? — A. It was unlocked.
Q. Who unlocked the ballot box?— A. Mr. Griffin.
Q. Was the ballot box locked when the books were put in? — A. I think so.
Q. Do you know who locked it? — A. He did.
Q. Was the ballot box in any way sealed when they went away to dinner
tliat day? — ^A. I couldn't say whether it was or not.
Q. Did you see it sealed, was any seal put over It? — ^A. I don't remember of
seeing it.
Q. Were you there when the election opened up after dinner? — A, Yes, sir.
Q. Did you see any seal taken off the ballot box that day, when they opened
np the polls again after dinner? — A. I have no recollection of it.
Q. How close were you to the ballot box when the board got back after
dinner? — A. Maybe 10 feet away.
Q. You say you were within 10 feet of it? — A. Yes, sir.
Q. Did you see anybody unlock it to get the books out? — A. Yes, sir.
Q. Who unlocke<l it?— A. Mr. Griffin.
Q. Did you notice before he unlocke<l it that he or anybody else removed
any seal from this slot or opening in the ballot box through which the ballots
were put? — A. I don't remember.
Q. You didn't see any such thing? — A. I didn't see it; it might have been.
Q. You were looking at it and saw him unlock it? — A. Yes, sir.
Q. Now, you said some men applied for instnictions there that day? — A.
Yes, sir.
Q. How many voters applied for instructions that you know of? — A. I think
about four or five.
Q. Did you know the men? — ^A. Part of them.
Q. Were any of those men you say applied — voters that appliwl for instruc-
tions— there that day physically incapacitated in any way you could obsers-e? —
A. I think one was partially blind.
Q. Who was that one? — ^A. I think Samuel Clements.
Mr. Fbankhavser. This examination is not within the issue of contest and
can not be raised here at this time under this notice of contest. We have had
no opportunity to prepare any defense on the question of voters not being
sworn in in the township of Carmel and I think there should be a limit to this
examination somewhere between the notice of contest and the answer.
Mr. Adams. This was brought out on your direct testimony; we ask for an
nmendnient. We claim the right to put it in anyway, whether covered or not
Mr. FsANKHAUSEB. There should be some sort of an understanding about the
scope of the inquiry.
Mr. Adams. We claim the right to put it in and ask an amendment to our
{petition,
Mr. Fellows. Well, we will object to that.
276 CARNEY VS. SMITH.
Mr. Fbankhauser. If yon had any amendment to make you should have
made it before you rested your side.
Mr. Adams. You have notice now that we are going to claim the right to do
that. It is difficult to get at a lot of the facts in this matter and we are not
able to get them sometimes before the witnesses go upon the witness stand.
Mr. Frankhauseb. I don't apprehend that this can be looked upon as a fish-
ing excursion here; you can not get on to new points and then Incorporate
them in your ground of contest ; there should be a limit. It seems to me. some-
where.
Mr. Adams. You have your witnesses here.
Mr. Frankhauseb, We did not subpoena any witnesses on this issue you are
now raising.
Mr. Fellows, I don't think you have any right to file an amended con-
test; you made your ground of contest when you filed your notice and that
ends it ; in other words, I understand you can not go out on a fishing expedition
and draw out during the taking of testimony with the ho])e of finding something
favorable.
Mr. Adams. The laws of Michigan are very liberal as to amendments and
sometimes the Federal authorities, by comity, apply the law that exists where
a dispute arises.
(Whereupon the hearing was adjourned until 1 o'clock p. m.)
CORTEZ CUSHING, recalled for further cross-examination by Mr. Adams,
testified as follows:
Q. I started to ask you something about Instructions to different voters there
in that precinct on November 5, 1912, and you stated one man and gave his
name, was partinlly blind? — A. Yes, sir.
Q. Who asked for instructions?— A. Yes, sir.
Q. His name was what? — A. Clements,
Q. Had you known him for some time? — ^A, I don't think I ever knew who he
was until that day.
Q. Could he see at all? — A. Yes, sir; he could see some.
Q. Could he see to write? — A. I couldn't remember whether he could see well
enough to write or not.
Q. Was there any oath administered to him? — A. No, sir.
Q. Did he vote there that day?— A. He did.
Q. Was the ballot he presented there deposited in the ballot box? — ^A. I think
it was; yes. sir.
Q. And counted with the other ballots? — A. Yes, sir.
Q. Who gave him the instructions? — A. Myself and Mr. Huber.
Q. You were acting as challenger when that was done? — ^A. Yes, sir.
Q. Were there some other voters who asked for instructions that day? — ^A.
Two or three of them did.
Q. Was there any oath administered to them or any one of the other two or
three? — A. No, sir.
Q. Were they physically incapacitiited from anything you observed so they
could not mark their ballots? — A. I don't think any of the rest were physically
incapacitated; no.
Q. Were they English-speaking people, or don't you know? — ^A. Yes, sir.
Q. Was there any oath administered to them at all before the instructions
were given them? — A. No, sir.
Q. Were they physically able to mark their ballots themselves without any
assistance, from your observation of them? — A. They were physically able, I
think, except not being educated enough so they could understand and read the
Instructions at the head of the ballot.
Q. But no oath was given to them at all? — ^A. No, sir.
Q. Instructions were given them and each one of them? — A. Yes, sir.
Q. Who instructed them? — A. Myself and Mr. Huber.
Q. In each instance were you present? — ^A. Yes, sir.
Q. Now, when Mr. Huber was calling off from the ballots when you began
counting at 2 o'clock that afternoon, he called off so loud, didn't he. that you
heard hlni? — A. Yes, sir.
Q. He would read off, for example, John M. C. Smith or Claude S. Carney,
or anybody else who got a vote on the ballot he was reading from; he would
call that name out aloud? — ^A. Yes, sir.
Q. -I suppose people were coming in and voting during the time he was calling
off? — ^A. Yes, sir.
CARNEY VS. SMITH. 277
Q. How close did the people come to where Mr. Huber was calling off? — ^A.
They passed right behind ns.
Q. Within how many feet of youV — A. Right behind our chairs; right close.
Q. Within 4 or 5 feet?— A. Yes, sir.
Q. Did they pass by Mr. Huber as he was reading from the ballots? — A. Yes,
sir.
Q. Was it possible for the voters, as they passed by Mr. Huber, to see the
ballot he was reading from? — A. I suppose they could loolt over his shoulder.
Q. Were there any people standing aroimd there watching the count that
afternoon l)efore 5 o'clock? When I s«y "people" I mean those who were not
sworn in in any capacity to act on that election board, any electors that were
not officers of the election. — A. 1 didn't notice anybody but Mr. Case.
Q. Who was he? — A, He pretended to be the Republican challenger.
Q. When did he claim that?— A. I didn't hear anything of it until the other
day when he was in town here.
Q. When his testimony was taken'i — A. Yes, sir.
Q. Was that the first you had heard that he had assumed to act there that
day as challenger for the Republican Party at that election? — A. That is the
first I knew of it; yes. sir.
Q. Well, how close did the voters come to where Mr. Huber was calling off
when they came in to get their ballots — A. It was to the other side of the room,
25 or 30 feet away.
Q. Well, now. counsel asked you whether you could tell the result from your
tally sheet, as far as you had tallied? — A. Yes, sir; as far as I had tallied I
could.
Q. The first thing you did you counted the straight tickets that you took
out of that baltot box? — A. Yes, sir.
Q. That is, before 5 o'clock? — A. Yes. sir.
Q. Then you went ahead and counted the split votes? — A. Yes. sir.
Q. So at any time if anybody had looked at your tally book, or you did
yourself, you could see how many votes were cast for John M. C. Smith, how
many straight votes, out of that tally book and how many split votes you had
gotten up to that time? — A. The straight votes were not put on the tally book at
that time.
Q. As you counted the split votes, every time there was a split vote for John
M. C. Smith for Representative in Congress, you put down one additional
stroke on the tally sheet for John M. C. Smith? — A. Yes, sir.
Q. And every time there was a vote for Claude S. Carney for Representa-
tive in Congress you put down on your tally book a split vote for Mr. Carney? —
A. Yes, sir.
Q. So that if anybody had looked at your tally sheet book while you were
counting there they could have seen how many split votes were counted for
John M. C. Smith and how many for Claude 8. Carney? — A. Yes, sir.
Q. Voters coming up there could hear you calling off each time a vote was
called off for John M. C. Smith or Claude S. Carney?— A. They could; yes, sir.
Q. This man Case, I suppose, was watching that, wasn't he — A. Yes, sir.
Q. He was there as challenger for the Republican Party? — A. Yes, sir.
Q. He claims he was there as a challenger for the Republican Party, but
you didn't know that day that he was, did you? — A. No, sir.
Q. Did he make any claim there that you heard that day, or say anything
that he was there as challenger for the Republican Party? — A. I didn't hear
him say anything.
Q. What time did he get there that day?— A. He was there quite early In
the rooming, about the time the rest were.
Q. Was he. or not, around there the whole day? — A. He was In there the
most of the time.
Q. Sometimes he would go out? — A. I think so; yes, sir.
Q. There was nothing to prevent him after you fellows began counting there
at 2 o'clock from going outside and telling any voter how the vote stood up
to that time, as shown by your tally book from the straight votes that had
already been counted, was there? — A. No, sir.
Q. In other words, after you opened up your tally books and began counting
at 2 o'clock, say at 4 o'clock that afternoon, after j'ou had counted two hours,
there was nothing to prevent him from going out and telling any outsiders or
anybody how many votes — how many straiglit votes — there were up to that
time for John M. C. Smith and how many split votes for John M. C. Smith, was
there? — A. No, sir.
278 CARNEY VS. SMITH.
Q. That information you had right there and it was to be had ali the time
as you went along counting those ballots? — ^A. Yes, sir.
Q. That was true of every candidate whose name was on that ticket? — ^A.
Yes, sir.
Q, That is, at any time between 2 and 5 o'clock when you were counting
those ballots, there was nothing to hinder this man Case or anybody else from
listening or seeing that tally book and going out and communicating what that
tally book showed to the people outside who hadn't voted yet? — A. No, sir.
Q. Was this man Case behind the railing up to the time you begtm counting
the ballots at 2 o'clock? — A. Xo, sir; he was not inside of the railing excei)t
to vote.
Q. He came in and voted and then went outside of the railing — ^A. Yes, sir.
Q. When did he first come inside of the railing? — A. Shortly after we com-
menced to count.
Q. Shortly after 2 o'clock?— A. Yes, sir.
Q. Where were you when you first went in there In the morning after the
board organized; were you inside of the railing or outside? — ^A. I was outside.
Q. Did you go inside before you were sworn In as an inspector? — ^A. Yes, sir;
to give instructions to the voters.
Q. Did Mr. Case go into the booth at any time when instructions were given
to voters? — ^A. No, sir.
Q. Did he make any claim there that day that he was entitled to go in the
booth with the voters at the time instructions were given to those several
voters? — A. I didn't hear him.
Q. When Mr. Huber rend the names off there, from 2 to 5 o'clock that day, he
was the only one who read the names off? — ^A. He was.
Q. Nobody was looking over the ballots when he read them off, was there?—
A. I don't know whether Case did ; he may have looked over his shoulder part
of the time ; he stood b^ind all of us.
Q. You said something, as I understood you, on your direct examination,
that you didn't use the tally sheet ; did you use the tally sheet up to 5 o'clock? —
A. Ye», sir.
Q. So you began using the tally-sheet books when you began counting, when
you opened that ballot box at 2 o'clock? — A. As soon as we b^^n to count the
split ballots.
Q. The tnlly-sheet book did not show that you had been tallying the straight
ballots on there? — A. No, air.
Q. They were counted up and the total number was the only thing of the
straight ballots made on the tally-sheet book? — A. Yes, sir.
Q. Then, when you began counting the split ballots you put down a tally
for every man who got a vote on any and all of the ballots after you com-
menced counting the split ballots? — ^A. Yea, sir.
Q. Now, something was said about a man named Ells, as I understood you, on
your direct examination. Ells protested against them opening that ballot
box and commencing that count at 2 o'clock, didn't he? — A. He said as far as
he was personally concerned It would be all right, if somebody else didn't make
a holler or kick, or something like that.
Q. Did he tell them It was not. In his Judgment, legal to do It? — A. I don't
think he did.
Q. Can you recollect just what he did say? — A. That was all I heard him
say when Mr. Huber aske<l him if it would be all right to open the box; he
said as far as he was iiersonally concerned he would not make any kick,
but stmiebody else might ; that is what he said.
Q. Was there any adjournment taken at supper time there by the board?—
A. No, sir.
Q. How did they get their supi)er, if they got any? — A. Part of us had a
lunch that was brought in and while we were ejitlng there, one or two of the
other members went to Ellsworth's and got supper up there.
Q. While the others were gone to supi)er, yourself and those who had their
lunch there, and ate it there that night, did you go on with the count while
the othei*s were absent? — A. No. sir.
Q. You stop|>erl the count while they went away? — A. Yes. sir.
Redirect examination by Mr. Frankhauser:
Q. Mr. Cushlng. about the time you got through — ^you stated about U
o'clocK — do you mean by that that was the time you got through counting or
that was the time you were all dcme? — A. That was the time we were all done
and everything finished up.
OABNEY VS. SMITH. 279
Q. The count had been completed then some time before IT o'clock? — A. A
little while before; I think about half past 10 o'clock.
Q. Were those returns all signed up before Mr. Griffin or any of them went
51 way from the polling place?— A. I think they were, but I am not positive.
Q. The counting was done and the blanks were all filled out and signed, were
they, or don't you remember about that? — ^A. I couldn't remember.
Q. In response to Judge Adams's question you thought the old Iwxes we used
to have had a slot in and you could, by a ruler or any other thin piece or sub-
stance of any kind, jam those ballots down in there and get them out of the
way of the slot? — A. I don't know much about that.
Q. But. anyway, in these new boxes there was no way to open it and crowd
the tickets down except as they were crowded down by the machine? — ^A. No,
sir.
Q. As a matter of fact, whether it was an old box or a new box. the box was
pretty nearly full at 2 o'clock in the afternoon, was it not?— A, Yes, sir.
Q. If you had cast two-thirds of the voVe at that time or three-fourths, we
will say, they had cast about 175 or 180 votes, and they would have 00 or 70
more to cast. Do you think that box would have held 00 or 70 more by putting
them in in that way? — ^A. I don't know whether it would or not.
Q. As far as you understand it, it was simply a question of Judgment, was it
not? — ^A. Yes, sir.
Q. There was nothing about it that looked crooked to you was there?
Mr. Adams. I object to that as irrelevant and immaterial.
A. No. sir.
Q. Now, there were Just three voters there that asked for Instruction — one,
pretty nearly a blind man, and two others. Is that alKuit your recollection? —
A. I couldn't tell the exact number ; I thought four or five that asked questions.
Q. How many ballots did you see marked? — A. I don't think I saw more than
tbree or four marked.
Q. Did you see more than two marked? — ^A. Yes, idr.
Q. When those two were marked you were present both times ; it is true that
every ballot that was marked you were summoned to be present? — A. Yes, sir.
Q. Was Mr. Chase present, too? — ^A. No, sir.
Q. He was the Republican challenger, as you understand It now? — ^A. Yes, sir.
Q. But the election Inspectors saw them marked. When the two or three or
four were marked, you were present and saw that it was done right? — ^A.
Yes, sir.
Q. I will ask you whether the ballot was marked as the voter requested it
should be? — ^A. Yes, sir.
Q. Something was said about assistance; do you understand the difference
between a voter asking for assistance and one asking for instructions? — ^A.
Yes. sir.
Q. When you say three or four or five voters asked for assistance, you mean,
do you. that they wanted their ballots marked by somebody else? — A. No, sir;
not all ; aUogether there were four or five, I think, that asked either for assist-
ance or instructions.
Q. As far as marking the ballots were concerned, can you renieniber of over
two or three? — A. I don't think I remember of only two who required some
assistance in marking them.
Q. The others simply wanted to know how to vote to express their inten-
tion?— A. Yes. sir.
Q. You had been on election boards previously? — A. Xo, sir.
Q. You didn't challenge any of those votes that day?— A. Xo. sir.
Q. You saw no occasion to, did you?
Mr. Adams. I object to that ns lnconii)etent. irrelevant, nnd inininterlal.
Q. Did you see any occasion to challenge any votes?
Mr. Adams. I ijbject to that as incompetent, irrelevant, and Immateiial
whether he saw any or not; that would not change what the law required to be
done.
A. I did not.
Q. Now, something was said about those voters who asked for assistance not
being sworn. You didn't challenge any of them because they were not sworn,
did you?— A. No, sir.
Q. Your town is quite strongly Republican?— A. Yes, sir.
Q. Now. did your tally sheet in the afternoon from 2 o'clock until 5 o'clock
show the straight vote?-^A. No, sir.
Q. It simply showed the split vote?— A. Yes. sir.
280 CARNEY VS. SMITH.
Q. Ill response to JikI^o Arlanis's question. If luiybody by looking at the tally
sUeet could K(»e the total, that wa» not true up to 5 o'clock, was it? — A. I don't
think I teHtiticHi to that.
Q. I didn't know whether yon understood the question or not. — A. No, sir.
Q. Mr. Case nr)r nol>ody else saw the result of the straight count? — A. Not
that I know of.
Q. In other words, you counted the straight ballots and rolled them up and
marked the number on the back ; what did you do with them then? — A. We laid
them back In a bookcase or cupboard there.
Q. Did anybody consult those ballots that you siiw? — A. No, sir.
Q. Then. I say, your tally sheet ui> to 5 o'clock showed nothing but the split
votes?— A. That is all.
Q. Something was asked you al>out what Mr. Case could do or anybody else
could do, as a matter of fact no news got spread around there how the vote
stocKl? — A. Not thai I know of.
Q. Did Mr. ('ase, to your knowledge, carry news out how the vote stood? —
A. Not that I know of.
Q. Did you see Mr. Case all the time? — A. No. sir.
Q. Was he where you coul<l see him? — A. He was behind us. I c<nild have
seen him If I looker! around.
Q. He was right there in the voting place? — A. I don't know whether he was
all the time or not.
Q. This man Ells has lived there a good many years? — A. Yes. sir.
Q, He has been iiretty active in Democratic iK)litics? — A. Yes, sir.
Q. He has been township clerk 20 years, hasn't he — s<miething like that? — A.
lie has been supervisor ])art of the time and part of the time township clerk.
Q. Whatever was done in iK)litics — Democratic iwlitics — Mr. Ells had a good
deal to do with it? — A. Yes. sir.
Q. He was always active, wasn't he? — A. More or less so; yes. sir.
Q. On election days worked on the board, etc.; in other words, state whether
or not youi knowl<Mlge of him was such as to know he was an old member of
the ele<*tion board and had been for years.
Mr. Adams. Objected to ;is incomi>eteiit, In'elevant. and immaterial, calling
for the ('onclusifm of the witness and no fact.
A. He has been on the board more or less since I can remember.
Q. Does his l)rother edit a Democratic paiK?r? — A. Y'es. sir: the Cliarlotte
Leader.
Q. Now this man that was jwrtially blind — Mr. Iluber — was the one that
rendered as.*<istance to him?— A. Yes. sir.
Q. Did Mr. Huber mark his ballot?— A. I think lie did.
Q. You saw him mark it if he did? — A. I couldn't remember whether there
was one or two we had to help mark their ballots, and 1 think Mr. Huber helped
them if anybody did. I didn't mark anybody's ballot.
Q. Did you see Mr. Clemen ts's ballot marked? — A. Yes, sir.
Q. Who marketl it?- A. I think Mr. Huber did.
Q. To recapitulate, j'ou think there were two men who had their ballots
actually marked by somebody else that day? — A. I don't think that more than
two had somebody else mark their ballots.
Q. The balance were simply asking for instructions? — A. Y'es, sir.
Q. And whenever there were any ballots marked you were present and saw
them marked? — ^A. Yes, sir.
Recross-examination by Mr. Adams:
Q. When you counted those straight ballots after you opened your ballot
box at 2 o'clock that afternoon you did count them aloud, did you, so anybody
sitting around .would know how many you counted? — ^A. No, sir.
Q. You didn't count them inaudibly, did you? — ^A. Yes, sir.
Q. How did you count them? — ^A. We first spread them into two piles. Re-
publican and Democrat, and I counted one pile and Mr. Huber counted the
other, and I told him how many there were
Q. Out aloud? — A. Ro he could hear it; I don't know whether anyone else
could or not, how many there were in my pile, and he marked that on the back
of the roll.
Q. Did he tell you how many he counted in his pile? — A. Yes, sir.
Q. Out aloud? — ^A. Yes, sir.
Q. If Mr. Case was standing there within 3 or 4 or 5 or 6 feet of yon he
could have heard what you said to Mr. Huber about the number of straights
CABNEY VS. SMITH. 281
yoD counted and what Mr. Huber said to you about the number of straights
he counted? — ^A. I presume he could ; yes, sir.
Q. Mr. Case was right there watching the .count? — A. I dou't remember
whether he was there at that time or not
Q. Mr. Clements was there? — A. I don't remember of seeing Mr. Clements
after we commenced counting the split ballots.
Q. Was there anybody else standing around there when you were talking to
Mr. Huber and Mr. Huber to you about the number of straights each of you
had counted? If so they could have heard If they passed by there, I suppose? —
A. Yes* sir.
Q. That is. voters?— A. Yes, sir.
Q. They were passing right by Mr. Huber, were they not ,and yourself, then,
near enough so if anybody had been passiug w^hen you told Mr. Huber how
many straights there were they would have heard it? — A. I think so.
Q. When Mr. Huber told you how manj- straights there were he had counted,
if anybody had been passing by they could have heard It. If their hearing was
all right, couldn't they? — ^A, They might have; yes, sir.
Q. Counsel asked you something about whether you challenged any voter
that day, and I undestood you to say you did not — that you didn't see any-
thing that occurred that you thought you had occasion to make a challenge —
something to that effect — Is that about the substance of It? — A. That is what I
said; yes, sir.
Q. Did you know what the law was about requiring voters to take an oath
if they wanted Instruction or assUtance? — A. No, sir; I did not.
Mr. Fbankhauser. 1 objei't to your continually using the words " assistance "
and ** instruction " interchMngeal)ly. We take the rule to be that a man does
not have to be sworn to receive Instruction, and I object to the question assum-
ing that they must be sworn to receive Instruction.
Q. Instruction or assistance, either or both: now I am going to read a little
to you from what we claim to be the law of the State of Michigan that was in
force on the 5th day of November, 1912. as follows:
"When an elector shall make oath that he can not read English or that
because of physical disability he can not mark his ballot, or when such dis-
ability shall be made manifest to said inspectors, his ballot sliall be marked for
him in the presence of the challenger of each political party having a challenger
at such voting place by an insi)ector designated by the board for that purpose,
which marking shall be done In one of the booths."
If you had known that was the law on that election day, then as a challenger
there for the Democratic Party, if anybody wanted assistance and It was not
apparent that they were physically disabled and thereby prevented from mark-
ing their ballots, you would have challenged their vote, would you not? — A.
Yes, sir.
Q. To refresh your recollection, did not Mr. Ells say there about the time they
undertook to open thai ballot box at 2 o'clock this In substance: •'Personally
I have no objection to your doing that, but if you do It it is illegal," or that in
substance? — ^A. I didn't hear any such words.
GORDON GRIFFIN, being first sworn to testify to the truth, the whole truth,
and nothing but the truth, testified on behalf of the contestee as follows:
Direct examination by Mr. Frankiiauser :
Q. You are supervisor of the townshli) of Carmel?— A. Yes, sir.
Q. How long have you been supervisor? — A. Two years.
Q. Were you a member of the election board in 1912 on the r»th of Novem-
ber?— ^A. Yes, sir.
Q. After you got through counting the ballots that day, what was done,
or that night? — ^A. Well, sir, I couldn't say what was done with them.
Q. Were you there wlien they were put away? — A. No, sir.
Q. Do you know where they are now? — A. I suppose I do anyway.
Q. Where are they?
Mr. ADAif 8. I object to where he supiK)ses they are.
Q. Where are they?
Mr. Adams. Same objection.
A. Carmel Township hall.
Q. Has the box been there ever since election day? — A. As far as I know
it has.
Q. In whose care or charge is it? — A. It is locked up with the clerk.
282 CARNEY VS. SMITH.
Q. la the box Itself looked?— A. Yes, sir.
Q. As far as you know it contains the ballots that were deposited there
the day of election? — A. Yes, felr.
Mr. Frank HAUSEB. I will make this offer on the record: The coutestee here
is willing that the box shall be brought in and the votes counted by the board
to-morrow morning, and will abide by the result, whatever it shows, in re-
sponse to any claim that has been made by the contestant that the ballots
were not properly countetl and that he did not receive the ballots that were cast
for him.
Mr. Adams. I do not think that counsel understands the purport exactly
and wholly of the contest that is made on this particular precinct. A count
of the ballots could not in any way cure the invalidity or illegality of the
election that was held In that township on that day, by a count of the bal-
lots in the box.
Mr. Fbankhauser. Will you consent that that may be done?
Mr. Adams. What is the object of doing It?
Mr. Frankhauseb. If you will consent to that we will bring in the box.
Mr. Adams. I do not see what avail it would be to the congressional com-
mittee or anybody else to count the ballots.
Mr. Frankhauseb. I take it you do not consent to it.
Mr. Adams. You can do anything you want to; that is all I have to say
upon the record In regard to the matter. We claim that the election as stated
In the petition was illegal for the various irregularities that occurred, irre-
spective of what the vote may show. Any count of the ballots could in no
way whatever relate to the objections that are made to the election In that
precinct on the 5th day of November, 1912.
Mr. Frankhauseb. In resix)nse to thnt we make the offer and we do not
care to have any further controversy.
Q. I suppose you were there all day the day of the election? — A. Yes, sir:
except nt the noon hour.
Q. What portion of the work did you do? — A. I took the tickets and de-
posited them In the box.
Q. Are you one that signed these blanks? — A. Yes, sir,
Q. The o'her members of the board were Mr. Huber? — ^A, Yes, sir.
Q. And Mr. Shaver? — A. Yes, sir.
Q. And the township clerk, Mr. Cole? — A. Yes, sir.
Q. And another clerk, Mr. Martin, and yourself? — A. Yes, sir.
Q. What did you discover with reference to the ballots going Into that box
toward noon, or about noon? — A. We discovered that they commenced to work
in hard shortly after noon and It was hard to get them In, at half past 1
o'clock or a quarter to 2 o'clock, I think.
Q. What was the trouble, cjin you explain?— A. The box was full: that Is.
very nearly full. jt
Q. IIow did It work?— A. It work(»d hard, the ballots would not go down
In there.
Q. Did you have trouble In getting the l>allots in? — A. Yes, sir.
Q. How many ballot boxes did you have? — A. Two.
Q. What was the other one for? — A. For the woman suffrage.
Q. Did you put all the ballots for l*resId<Mit. governor, etc., down to coroner.
In one ballot box, the State ticket, the big ticket I mean?— A. Yes, sir: we did:
we put them in the same box.
Q. You only had one bi^x aside from the woman -suffrage box? — A. Yes, sir.
Q. About liow large was that box? — \, It was 2S inches high.
Q. How high?— A. About 2S inches high.
Q. IIow deep down In that ]>ox did the roller go?— A. Half an inch or an
Inch.
Q. It was pretty nearly on tlie cover? — A. Yes. sir.
Q. That box was lo<*ke<l the same as any other box? — A. Y'es, sir.
Q. Was there any oi)ening to the box, excei)t the slot where you \mt In the
tickets, when lockeil?— A. Xo, sir.
Q. Do you know Mr. Spencer?— A. Yes, sir.
Q. Was he there that day?— A. Yes, sir.
Q. Do you know what his politics are? — A. Yes, sir.
Q. What ai-e they?— A. He is a Democrat.
Q. Do you know whether he was working for any iwrtlcnlar party or candi-
date?—A. No, sir.
Q. Was he living in the township that day?— A. No, sir.
CARNEY VS. SMITH. 283
Q. Where was bis resklence? — A. Clmrlotte.
Q. But he was there? — A. Tes, sir.
Q. What was he doing, if you know?— A. He was to the polling place there;
I don't know what he was doing.
Q. Did you see him again there in the building, working in the game and
see any banner on his automobile? — A. No, sir.
Q. He drove an automobile? — A. Yes, sir.
Q. And did at that time?— A. Yes, sir.
Q. Do you personally know of his working for any candidate or any ticket
before the last fall election? — A. No. sir.
Q. What was he doing up there that day, if you know?
Mr. Adams. I object to that as incompetent irrelevant and immaterial.
A. I don't know.
Q. What did yon see him doing in the voting place that day?— A. I smw
him doing nothing particular, sitting around there part of the time.
Q. Did he show any Interest in the election?
Mr. An.^MS. I object to that as calling for the conclusion of the witness and
not calling for anything that Spencer did.
A. About the same as usual ; he always took an active part.
Q. Did he have anything to say; if so, what, that day?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial and
hearsay.
A, Well, all I can say, I think It was after dinner: we were talking about
the balolt box being full and he said: *' You will have to take the 2 o'clock
count, won't you?" I says, "I don't know how tliat will be; I don't know
whether it will be all right or not.*' He says, " We do it in cities." I said,
*• I understand that," and finally we concluded to take the 2 o'ckK'k count. :
Q. Why did you conclude to do that?
Mr. Adams. I object to that as incomiietent. Irrelevant, and immaterial.
A. Because the box was full.
Q. Who suggested this; that is, outside of what you stated about Mr.
Spencer.
Mr. Adams. Objected to as incomiietent, irrelevant, immaterial, and hearsay.
A. Really I couldn't say; the board was there and it was talked.
Q. Well, who? — A. Well, sir; I don't think I would want to state any names;
I couldn't say, really.
Q. You talked it among yourselves? — A. Yes, sir; I will not say any names.
Q. What did you finally do then? — A. Well, we unlocked — in the first place
we declared the polls closed until we could empty the ballot box, then we
emptied the ballot box with the ballots on the tabla
Q. How long were the polls closed? — A. Possibly two minutes.
Q. What did you do when you commenced voting again? — A. We declared
the polls open.
Q. Was that publicly announced? — A. Yes, sir.
Q. State, as near as you can, what you said when you declared the polls
closed? — ^A. "Hear ye, hear ye, these polls are closed on account of the ballot
box being full and necessary to take tlie 2 o'clock count" I don't know as
that are just the words; I don't think those are Just the words.
Q. When you ordered that 2 o'clock count, did you suppose there was
authority In law for so doing?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. I knew that was not the law.
Q. You knew it was not the law? — ^A. Yes, sir.
Q. Who unlocked the box?— A. I did.
Q. Who had the key?— A. I did.
Q. What did you do after you unlocked the l\ox? — A. We emptied the ballots
out on the table.
Q, What did you do then? — A. I put the box down on the fioor.
Q. You locked the box again? — A. Yes, sir.
Q. And commenced voting? — ^A. Yes, sir.
Q. Now, what was done with the ballots you emptletl on the table? — A. Mr,
Huber and Ck>rtez Gushing got to counting.
Q. Did you notice what ballots were first counted? — A. No, sir; I did not.
Q. What was done with reference to Mr. Cushing before he began the count
with Mr. Huber? — ^A. He was sworn in.
Q. Who swore him?— A. William Huber.
Q. Is he a Justice of the peace? — ^A. Yes, sir.
284 CARNEY VS. SMITH.
Q. Who else was sworn in about that time? — ^A. William Clementa
Q. Can you state on the record how those two gentlemen came to be the
ones picked out? — ^A. Well, we talked it on the board and also talked with
Mr. Ells in regard to Mr. Cushfng acting.
Mr. Adams. I object to what he talked with ^Ir. Ells and move to strike It
out as irrelevant and immaterial. He was not a member of the board there
and had no authority to give legal advice, and his advice or suggestions are not
binding and it is incompetent and I move to strike out the answer .
Q. What did Mr. Ells say?
Mr. Adams. The same objection.
. Q. About Mr. Gushing?
Mr. Adams. The same objection.
A. As far as he was concerned it was all right.
Q. What was all right? — A, For Mr. Gushing to act as derk.
Q. Did you hear Mr. Ells say anything about the count at that time?
Mr. Adams. I object to that as incompetent. Irrelevant, immaterial, and
hearsay.
A. I asked Mr. Ells if he thought it would be all right, and he said as far as
he was concerned it would be.
Q. Did he say anything more?
Mr. Adams. The same objection as last.
A. That is all I remember.
Q. Do I understand he suggested Mr. Gushing? — A. No, sir; I asked him
myself.
Q. What did you nsk him? — A, I asked him if it would be all right to put
Mr. Gushing in as clerk, and he said it was — inspector.
Mr. Adams. I move to strike out the answer as hearsay and incompetent
and immaterial.
Q. What was he sworn in as?
Mr. Adams. I object to it as incompetent, calling for the conclusion of the
witness, and that there is bettor evidence.
A. As inspector.
Q. What was Mr. Glements sworn in as?
Mr. Adams. The same objection.
A. As an inspector.
Q. Who, If anybody, if you remember, suggested Mr. Glements as one of the
men?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, and
hearsay.
A. I don't remember who It was.
Q. These men were chosen by whom? — A. By the board.
Q. Wjis Mr. Gase around there that day? — A. Yes, sir.
Q. What was he doing, if you know? — A. Well, really, I don't know.
Q. Where was he, inside or outside of the railing? — A. He was outside until
we commenced to count the votes.
Q. Then where did he eroV — A. Ho was inside part of the time, anyway.
Q. Whr.t did he sjiy when Inside? — A. He looked over the ballots.
Q. In countlnfi: those ballots, how far were they counted — how far. as you
observed as to tlie manner of counting? — A. I didn't pay very much attention
to the count myself: I was busy most of the time.
Q. Who did the rending of the ballots?— A. William Huber.
Q. Who did the tallying?— A. Gortez Gushing, and William Glements helped.
Q. After him who tallied?— A. D. C. Gole.
Q. Was he the township clerk? — A. Yes, sir.
Q. Did Mr. Gushing r'ontinue to tally until the election was over with?—
A. Yes, sir.
Mr. Adams. I object to that as leading.
Q. Did you spe Mr. Gase doing anything besides what you have testified to —
looking on there? — A. Xu. sir.
Q. Did they conii)lete Ihis count — when 5 o'clock came what did you do? — ^A.
We declared the polls closed.
Q. Was the count completed then that they had began? — A. No, sir.
Q. State whether any information got out, as far as you know, among the
lobby or board as to how that count stood? — A, It did not.
Q. Did you hear any statement of how the vote stood on Gongressmen? — A.
No, sir.
Q. Well. I think that .^something was said about a man voting who required
or, at lenst. asked for assistance. Give your recollection on that — how many
CABKEY VS. SMITH. 285
there were, as much as you can remember.— A. Well, I would say two ; that is
as many as I would want to say.
Q. Do you remember who they were? — ^A. Yes, sir.
Q. Who were they?— A. One was George Dibble and one was Sam Clements.
Q. Did they come in separately? — ^A. Yes, sir.
Q. What was said by the first one— what was his trouble?— A. Really, I
couldn't say as to that.
Q. What did he say?— A. He aslced for assistance.
Q. Asked who?— A. I think Mr. Shaver and Mr. Gushing.
Q. Where was he when he asked for assistance? — A. To the gate— that is,
about to pass through the gate.
Q. W^hat did the board do when he made that request? — A. Mr. Shaver —
Mr. Gushing was there and called him and he went in the booth with him.
Q. Do you know wliat occurred in there? — ^A. No, sir.
Q. Was that in the forenoon or afternoon? — A. I couldn't say.
Q. Was it after Mr. Gushing was counting?— A. I think it must have been
before noon, but I will not say.
Q. Well, if he asked for assistance, Mr. Shaver, one of the board, and Mr.
Gushing went in the booth with him?- A. Yes, sir.
Q. You don't know what occurred in there? — ^A. No, sir.
Q. Did you go in the booth? — ^A. No, sir.
Q. You don't know whether they marked the ballot or not?— A. No, sir.
Q. What was the next man, Glements, what was the trouble, an old man? —
A. Yes. sir.
Q. About how old? — ^A. I think about 70 years old.
Q. What did he say? — \, He asked for assistance.
Q. Did he give any reason? — A. He was partially blindt
Q. Who assisted him?— A. Mr. Shaver and Mr. Gushing.
Q. Was there anything about his appearance that you could see he was blind
or partially blind?— A. One eye.
Q. What could you see about it — what did you see that indicated he was par-
tially blind? — ^A. I knew he was partially blind.
Q. Did he have on any glasses? — ^A. I have known him all my life.
Q. WTiat was done with him and who did ft? — A. Mr. Gushing and Mr.
Shaver went in with him; I will not say Mr. Shaver; I think that was Mr.
Hnber.
Q. What did they do? — A. I couldn't tell you what they did; they went in
the booth with him.
Q. Did both of those men hand their tickets to you yourself? — ^A. Yes, sir.
Q. Were there any others who had assistance in the booths that you know of
that day besides the two you have spoken of? — A. No, sir.
Q. Do you think there were any others? — A. There might have been; those
are the only two I remember.
Q. In your Judgment, how many more might there have been? — A. There
might have been two more.
Q. That would be four in all. — ^A. Yes, sir. *
Q. Do you think there could have been any more than four? — ^A. I will not
say there could have been more than four.
Q. Your best judgment? — ^A. I wouldn't think more than four.
Q. You don't remember anything as to who the other two were; you have
named two? — A. No, sir; I do not.
Q. Was there anybody who had a ticket marked when Mr. Gushing was not
called in to see it marked? — ^A. No, sir.
Q. Mr. Gushing was always invited? — A. Yes, sir.
Q. Who asked him to go in? — ^A. I couldn't hardly say ; I think Mr. Shaver.
Q. Well, now, then, when it came 5 o'clock you adjourned and continued the
count; did you stay there until the count was all done? — A. Yes, sir.
Q. And the returns all signed up? — A. Yes, sir.
Q. Did you know anything about the sealing of them? — A. No, sir.
Q. You went away before that? — A. Yes, sir.
Q. Who was left there to seal them? — A. Mr. Huber and Mr. Shaver.
Mr. Adams. I object to who was left there to seal them.
Mr. Fbankhatjser. I will withdraw the question.
Q. Were these statement books and poll books spoken of here, were they all
completed when you left and signed up and filled in? — A. Yes, sir.
Q. About what time was that? — ^A. That was about 11 o'clock.
Q. About what time did you get through counting — A. About half past 10
o'clock.
286 CARNEY VS. SMITH.
Q. This man Ells is a Democrat, you understand? — ^A. Yes, sir.
Q. And was a candidate for county office on tliat tlcltet?— A. Yes, sir.
Q. State whether or not he is an active participant in Democratic politics?
Mr. Adams. I object to that as Incompetent irrelevant, and immaterial.
Q. Whether he is or not? — A. Yes, sir; he is.
Q. He has been holding what offices in that township?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. He has been township clerk and suiiervisor and I think he has been treas-
urer.
Q. For how many years?
Mr. Adams. The same objection.
A. He has been township clerk, maybe. 15 years.
Q. Did you ever see him upon the board?
Mr. Adams. Objected to as Incompetent, irrelevant, and immaterial.
A. Yes, sir.
Q. Was a member, as far as you know, for a number of years?
Mr. Adams. Objected to as Incompetent, irrelevant, and immaterial.
A. Yes, sir.
Cross-examination by Mr. Adams :
*Q. The Mr. Ells you have been asked about was Julius B. Ells? — A. Yes, sir.
Q. He Was there about 11 o'clock election day, when the votes were counted,
when you left? — A. The whole board was there.
Q. All the others were there? — A. Except Mr. Clements; he went home about
6 o'clock.
Q. Mr. Clements was not there at 11 o'clock when you left; he didn't come
back after he left, about 5 o'clock, that day? — A. Xo, sir; he left about 6 o'clock.
Q. After he left, somewhere about 5 or 6 o'clock, he didn't return again any
time that you remember? — A. No, sir.
Q. And the books were made out, you say, when you left? — ^A. Yes, sir.
Q. All of them were signed when you left? — A. Yes, sir; as far as I know
they were all signed ; I know I signed.
Q. I understood you to say they were all signed? — A. I think they were all
signed.
Q. Do you mean to say upon the record they were all signed when you just
Bupiwse they were? — A. I am pretty sure the}' were all signed.
Q. Signed by all the members of the board? — A. Yes, sir.
Q. When you left?— A. Yes, sir.
Q. Now, I show you Exhibit 27, a certificate on Exhibit 27, which is the poll
book; that was not entirely signed, was it, when you left? — A. William Huber's
name isn't there.
Q. He didn't sign it when you left? — A. Xo. sir.
Q. It is not signed even now? — A. No, sir.
Q. That was not complete<l when you left at 11 o'clock? — A. No, sir.
Q. And it has not been conipleteil yet'i* — A. No, sir.
Q. When you left the other members of the board hadn't signed Eixhiblt 27,
bad they? — A. Yes, sir.
Q. That is, Mr. Huber hadn't signed that Exhibit 27 at all, you just stated:
he was the other inspector, wasn't he? — ^A. Yes, sir.
Q. Now, Mr. Cole was the township clerk? — A. Yes, sir.
Q. He was the township clerk, D. C. (\)le? — A. Yes, sir.
Q. He was the clerk of that election? — A. Yes, sir.
Q. He was a member of the board of election wasn't he? — ^A. Yes, sir.
Q. When you left there that night I>. C. Cole hadn't signed that poll book,
which Is a part of your election returns, Exhibit 27, had he? — ^A. He was not
one of the inspectors.
Q. He was a member of that election board? — A. Yes, sir.
Q. He was the clerk of that election board anyway, and D. 0. Cole's name was
not on that certificate to Exhibit 27, the poll book, when you left there that
night, was it? — A. His name is not there.
Q. It is not on there even now, as you are looking at it you don't find it
there to that certificate under your name and Mr. Cushlng's and Mr. Shaver's
name? — A. I didn't know as he had to have it.
Q. It is not there?— A. Xo, sir.
Q. That was not there when you left that night? — ^A. No, sir.
Q. When Mr. Cushiug was selected by — or was brought in there rather — ^to
count those ballots your full election board you had there that day was then
and there present? — ^A. Yes, sir.
CARNEY V«. SMITH. 287
Q. The two justices of the peace. Mr. Shaver and Mr. Hiiber, yourself as
supervisor, and the township clerk were all there at 2 o'clock when' that count
was commenced? — ^A. Yes, sir.
Q. Now, you know, didn't you, how the election board — what the statute
designated at the election board? — A. Yes. sir.
Q. You knew that the law on the 5th day of November required that the
supervisor, two justices of the peace not holding the office of supervisor or
township clerk, whose term of office will first expire, and the township clerk of
each township, and the assessor, if there be one, an alderman of each ward
Jd a city shall be the Inspectors of election? — A. Yes, sir.
Q. Knowing that then to be the law your election board on the 5th day of
November proceede<l to apiwlnt two other inspectors of election? — A. Yes. sir.
Q. Namely, Mr. Oushing and William Clements? — A. Yes, sir.
Q. You also knew this to be the law, did you, on the 5th day of November,
1912 : " In case four inspectors shall not attend at the opening of the polls,
or shall not remain In attendance during the election, the electors present may
choose viva voce such number of snid electors as, with the in.si)ector or insfpec-
tors present, shall constitute a board of four in number: and electors so
chosen shall be inspectors of that ele<ttlon during the continuance thereof."
Now, did you know that was the law? — A. Yes, sir.
Q. Yet knowing that was the law on the 5th day of November, 1912, you
swore in there two other insi^ectors, Mr. Gushing and William Clements, as in-
spectors of that election, and those two men participated in the conduct of
that election; that is true, is it not? — A. Yes, sir.
Q. The voters there did not elect, nomiunte, or appoint either Mr. Cushlng
or Mr. Clements, did they? — A. No, sir.
Q. The voters present had no voice in the selection of Mr. Cushlng or Mr.
Clements as inspectors of that election, did they? — A. Yes, sir.
Q. They had no voice in it? — A. No, sir; they had no voice.
(Last question read.)
A. Well, no; I talked with Mr. Ells
Q. It was not a public matter? — A. No, sir,
Q. After the talk you had with Mr. Ells your board went aliead and selected
those two men and they were sworn in, Mr, Gushing and Mr. Clements, as
inspectors of that election? — A. Yes, sir.
Q. It was done absolutely by the board? — ^A. Yes, sir.
Q. Then when yon did this — when you called In Mr. Gushing and Mr.
Clements and they were sworn in there to act as inspectors of that election,
you knew the law* as you liave stated you did, and you knew then your board
was acting illegally in selecting those two men to act on that board?
Mr. Frankiiauseb. I object to tliat; I don't think the witness should be
asked to pass upon questions that are for the Supreme Court.
(Last question read.)
A. It was a case of emergency.
Q. You knew that the only men who could be on that board was the super-
visor, two justices of the peace, and township clerk, and you knew they con-
stituted the board of inspectors, didn't you? — A. Yes, sir.
Q. You knew then when you selected Mr. Gushing and Mr. Clements as
additional inspectors on that board when all the other inspectors on that board
were present there, that your board was acting illegally in doing that? —
A. No, we didn't think we were ; we were doing the best we could.
Q. You knew you were doing something you had no authority to do under
the law, didn't you?
Mr. Fbankhauseb. I object to that as incompetent and immaterial.
A. We didn't think it was any harm.
Q. I didn't ask you whether any harm, I say you knew that it was illegal
when you put Mr. Gushing on there and Mr. Clements as inspectors, didn't you,
as you understood the law? — A. Why, I read that law over, I don't know that I
thought of it at the time.
Q. As you understand the law when you did put those two men on there as
inspectors, you knew when you did that, that it was in violation of the law,
as you then understood the law to be; that is true, Isn't it? — ^A. Well, I don't
know that I thought anything about it at the time.
Q. You. were supervisor of Carmel Township and chairman of that election
board, made so by the laws of the State of Michigan? — ^A. Yes, sir.
Q. And you knew who the statute said should be the board of inspectors of
that election, and you knew that when you went on that board that morning,
didn't you? — ^A. Yes, sir.
288 CARNEY VS. SMITH.
Q. And you knew that all the members of the board were there when Mr.
Cushlnf; and Mr. Clements were made insj^eotors or were attempted to be made
Inspectors, didn't you? — A. Yes, sir.
Q. So then, knowing what the law was, you belie\ing the law to be as you
now say it was at that time, you knew then that in putting those two men on
there you were doing something that was not in accordance with legal pro-
visions under the statutes of this State, didn't you? — A. It was a case of
emergency.
Q. When you did that you knew then from your own understanding of the
law that you had no right to init those two men in there? — ^A. No, sir; I did not
Q. You say you didn't know? — A. No, sir; possibly we didn't have the
right to according to law if you put it that way.
Q. You knew you didn't have any right to according to law, didn't you?— A.
I read that law.
Q. Hefore you had put them on that day you had read the law? — A. Yes, sir.
Q. You knew who were to be the members of that board of inspectors, didn't
you? — A. Yes, sir.
Q. So when you put two other men <m there to be members of that board of
Inspectors, you knew when you did it that you didn't have any legal authority
to do it? — A. I don't know as I thought anything about it at that time.
Q. You knew it?— A. Yes, sir; I knew it.
Q. That ballot Ik)x that was oi>ened there at 2 o'clock that afternoon, did you
unlock the box? — A. Yes, sir.
Q. You had the key? — A. Yes, sir.
Q. When you went away from there that night what did you do with the ke^
to the ballot box?— A. 1 gave it to William Huber.
Q. You never got it back? — A. Yes, sir.
Q. When?— A. That night.
Q. What time?— A. Well, before 12 o'clock.
Q. What did you do with it then? — A. I put it in my pocket
Q. How long did you keep it from the time Mr. Huber gave it back to you?—
A. Until our next meeting.
Q. You didn't go back to the voting place after you left there? — A. I didn't
go in. I went back there, but didn't go in the voting place.
Q. They were there when you went back? — A. Yes, sir.
Q. So you were not there when the books were finally disposed of that day
or night — the election books? — .\. Xo, sir.
Q. Where were those ele<'tlon lM)oks when you left — the statement books and
the poll books and the tally shei^t books you had used on the election that day? —
A. They were on the table.
Q. When you left, what remained to be done? — A. Just sealing the box and
sealing the enveloi)os and destroying the remaining ballots.
Q. That ycm didn't use? — A. No, sir.
Q. Now, you didn't help count those ballots that were counted from 2 o'clock
until 5 in the afternoon of that day? — A. No, sir.
Q, Did you assist in counting after the polls closed at 5 o'clock? What did
you do? — A. I counte<l the woman suffrage votes.
Q. Y'ou didn't count any of the ballots then that were there to be counted,
that were voted that day for any of the candidates for office? — ^A. No, sir.
Q. So that you slgne<l this statement, then, without knowing whether the vote
was correctly stated in these returns or not, without any personal knowledge? —
A. They were comT>etent men.
Q. No ; wait a minute. We will not comment upon the facts at all ; I want
to find out what y(»u did. You signed the certificate to the statement book.
Exhibit 2S. a certificate that the statements in that statement book of the votes
cast for the different candidates there for otflce at that election there that day
w^ere correct, when, as a matter of fact you had not counted the ballots at all,
had you? — A. No, sir: I didn't count them.
Q. You illdn't have anything to do with the counting of the ballots? — ^A. No,
sir.
Q. You didn't know of your own knowledge, then, when you signed that
certificate to that exhibit I have Just called your attention to, whether that
exhibit correctly showed the votes cast for the respective candidates or not,
of your owni personal knowle<lge? — ^A. No, sir.
Q. That is, you signed it without knowing personally whether the statements
in there were corrwt or not from any count you had made of the ballots that
day? — A. Not from any count I made. I knew they were all right
CABNEY VS. SMITH. 289
Q. You knew they were all right by flssumfuK oomething thnt Homebody elm
tead dAi>e? — A. I war there all the while.
Q. Hut you didn't count the ballots? — A. No, sir.
Q, How in the world can you tell whether those figures were correct without
looking over those ballots yourself, except as you took somebody else's say bo:
That is the way you knew? — A. Yes, sir.
Mr. Fbua>w8. I object to any further examination along this line; it Is ap-
parent that the contest upon the other side is that each man sitting on this
iMMird BUist persoually inspect each ballot, then must personally put down the
result of that ballot. If one shonki do that, it would take, in an ordinary
precinct, too much time, and the law does not aim at such impractical things,
ftud a contest for Congress based iipon such flyspecks as that is beneath the
dignity of either of the parties.
Q. You took the word of somebody else on that board? — ^A. I knew them.
Q. You knew the wen on the hoard? — A. Yes. sir.
Q. But you don't know whether those figures are correct, of your own Imowl-
edge. or not, do you? — A. I didn't put tliem down.
Q. You didn't count any of them? — ^A. No, sir.
Q. So you don't know whether they are correct or not, of your own knowledge,
from any investigation you made of the ballots yourself that day? — ^A. I didn't
set them down.
Q. You said you declared the polls closed until you could empty the ballot
Im>x; that w«s the declaration you made? — A. Yes, sir.
Q. You didn't make any declaration when you started in again, did you? —
A. Ye», sir.
Q. What declaration did you make? — A. Declared the polls oi)en.
Q. This election was held in the township hall? — A. Yes sir.
Q. Did you have any ballot boxes — did the township have any — besides those
you were using that day? — A. No, sir.
Q. Did you have on November 5. 1912. as the property of the township of
Carmel two ballot boxes? — A. I think there was another small box.
Q. Did you have that there In the voting place that day? — A. Yes, sir.
Q. Why didn't you use it? — A. It was a very small box.
Q. You only had about (10 more votes; it would hold 60 votes, would It not? —
A. We had more than that.
Q. You h}?d about three-fourths of the total vote cast In the ballot box when
you opened that box about 2 o'clock, didn't you? — A. I think 140.
Q. One hundred and forty what — 140 votes cast at that time? — A. I am not
positive al>ont that.
Q. If you had 140 votes cast at that time when you opened that ballot box,
you had 140 votes cast? — A. I think so.
Q. That left 99. How big was this extra ballot box you had there? — ^A. It
was 6 inches wide and 10 or 12 inches long.
Q. You didn't try to use that at all, did you? — A. No. sir.
Q. You could have filled it up, could you not, with ballots? — A. I suppose
we could.
Q. Of course, you didn't know when you opened that ballot box at 2 o'clock
how many more votes were going to be cast? — ^A, No, sir.
Q. And yet you made no effort to use that other ballot box you had there that
day? — A. No, sir.
Q. It had not been used up to that time for any purjwse in carrying on the
election, had It? — ^A. No, sir.
Redirect examination by Mr. Frankhauseb:
Q. I will ask you whether that was an honest election, and a fair ami square
one. as far as you know?
Mr. Adams. I object to that as incompetent, irrelevant, inamaterial, and call-
ing for tlie conclusion of the witness.
A. Yes, sir.
Q. Did you see anything there that day that indicated that anybody wanted
to deprive Mr. Carney of a single vote that belonged to him?
Mr. Adams. I object to that as incompetent, Irrelevant, and immaterial, and
calling for the conclusion of the witness.
A. No, air.
Q. Did he, in your opinion, get every vote that was cast for him?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, and
calling for the conclusion of the witness.
286—13 liQ
2&0 CABNBY VS. SMITH.
A. Yee, sir.
Q. Did John M. G. Smith get any votes, in your opinion, that did not belong
to him?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and call-
Ing for the conclusion of the witnens.
A. No, sir.
Q. Was there any electioneering around that booth or that voting place
against Mr. Carney, or in favor of John M. C. Smith?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and call-
ing for the conclusion of the witness and no facts.
A. I don't remember of any.
Q. And at the time that you ordered that count or acquiesced in taking that
count in the afternoon, was that an honest conclusion you came to, to fadlltatf
business?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. Yes, sir.
Q. Did you have the least idea of hurting anybody by making that kind of a
move in the election?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. No, sir.
Q. In your opinion, was anybody injured by that count in the afternoon?
Mr. Adams. Objected to as incomx)etent, irrelevant and immaterial, and call-
ing for a conclusion.
A. No, sir.
Q. As far as you know thnt ballot box is in the same condition it was in the
night of the election? — A. Yes, sir.
Recross-examinatib^ tfy Mr. Adams :
Q. As far as you know, you say, that the ballot box is in the same condition
it was the night of the election? — ^A. Yes, sir.
Q. Have you hiul that ballot l)ox since? — A. No, sir.
Q. I understood you to say a while ago that the ballot box was used since
the general election, was it? — ^A. No, sir.
Q. When did you see that ballot box last? — A. The day of the pilmary.
Q. Did you see It thnt day? — A. No, sir.
Q. What one did you use? — ^A. We got a box especially for that election.
Q. You didn't have any ballot box then? — ^A. Yes, sir.
Q. Where did you see this ballot box that the general ballots were put in
when the voter handed them in for aeiK)8lt on November 5, 1912, where did you
see it next after the election of November 5, the first time you saw it after
that?— A. l^p here on that day, I think that was the first time.
Q. On the- day of the primary election? — ^A. Yes, sir.
Q. That was when? — A. I don't remember that date now.
Q. On March the 5th.— A. Yes, sir.
Q. Where was it at that time?— A. In the hall.
Q. Just In the same condition it was when you saw it, the night you left
there?— A. No, sir.
Q. It was not In the same condition? — ^A. No, sir.
Q. Well, from the time you left the voting place there at the town hall at
about 11 o'clock on the night of November 5, 1912, some change had occurred In
that bnllot box up to the time you saw it at the time of the primary election
recently? — A. Yes, sir.
By Mr. Fbankhauser:
Q. What was the change?— A. There was a seal on it
Q. Was that the only change?— A. Yes, sir; and locked.
By Mr. Adams:
Q. Ynn don't know what is in it?— A. No, sir.
Q. Did you see It locked up at the voting place on the 5th, before you left, so
you don't know what was In it? — A. No, sir.
Q. So you hMven't looked in it Hiuce to find out what was in it?— A. No, sir.
Q. So you don't know now wbat was in it? — A. No, sir.
WILLIAM L. IITTBKU, being first duly sworn to tell the truth, the whole
truth, an<l nothing but the truth, testlfie<l in l)ehalf of the contestee as follows:
Diri'ct examination by Mr. Fkli.ows:
Q. Mr. Iluber, where do you reside?- A. In Carmel Township.
Q. Did you hold any official position there?— A. I am Justice of the peace.
CASNET VS. SMITH. 201
Q. Were you n member of that election bonrd in that township on the 5th
day of November, 1912?— A. Yea, sir.
Q. Did you serve all day? — ^A. I did.
Q. Did an emergency arise aloni^ about 2 o'clock of that day?
Mr. Adams. I object to that as assuming something and leading and calling
for the conclusion of the witness and as incompetent, irrelevant, and immaterial.
A. I know the ballot box was being filled.
Q. What kind of a ballot box did you use? — A. A metal box 12 inches in
diameter and 28 inches long.
Q. How were the ballots put in the box? — A. There was a slot on top and
two rollers that worked opposite each other and a crank to roll them in the box.
Q. Was it so constructed that you could slip a ruler or anything of that kind
in the slot to jam the ballots down? — ^A. It was not.
Q. Along about 2 o'clock the box became full ? — ^A. Yes, sir.
Q. So it would not work?
Mr. Adams. I object to the question put by the attorney general and the one
before it as leading, and I take an exception to this mode of examination.
Q. When that occurred what was done, was there any discussion before any-
thing was done?
Mr. Adams. I object to that as leading.
A. The board had talked the matter over at noon and considering the size
of the ballots and the size of the box, the box would become full before night
We had two small boxes about 6 by 6 by 12 inches, I think, Inside measure-
ment, one was for the woman suffrage ballot and the other was empty.
Q. What was there in that one that was empty, was it large enough to take
care of the rest of the election that day? — A. It Msas not; it had a partition
across in the center and it left about 6 inclieft'^t^pfcich end to put in small
ballots. It wasn't anything more than for the am^ffnients to the constitution.
Q. Now you say you discussed that at noon? — A. Yes, sir.
Q. Among the members of the board, you mean? — ^A. Yes, sir.
Q. Did you discuss it with anybody besides the board? — A. We talked the
matter over with those present
Mr. Adams. I object to what he discusseil with anybody besides the members
of the board as incompetent, irrevelnnt, and immaterial.
A- There were a uuniber present, among them Mr. Si)encer.
Q. Who was he? — A. An auctioneer.
Q. Was he quite active at that campaign?
Mr. Adams. I object to that as incomi)eteiit, irielevaut, and immaterial and
cailliug for the conclusion of the witness.
A. I couldn't say how active he was on that day ; he was a Democrat.
Q. Where did he live?— A. He lived in Charlotte.
Q. Did he have any business other tliun iwlitlcs out there that day? — A. Not
that I know of.
Q. Did you discuss it with him? — ^A. We talked the matter over and said
we were up against a proposition.
Q. Did j'ou discuss it with anybody besides Mr. Spencer? — ^A. With Mr. Ells,
the chairman of the Democratic county ticket.
Q. Was he also a candidate on the Democratic ticket? — A. Yes, sir.
Q. What did he say about it?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial and hear-
say.
A. He said as far as he was concerned he couldn't see any other way out of
the difficulty.
Q. Was this discussion had by you for the purpose of finding some means to
get along with the emergency you had?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and
bearsny.
A. It was»
Q. What did you finally determine upon? — A. We concluded the best way
was to cpll in several extra clerks and proceed with the count, so I swore in
W'illiam Clements and Cortez Cushing as extra clerks.
Q. What wan their p<>litlcs? — A. One was a Democrat and the other was a
Republlcfin.
Q. They were men of standing in that community? •
Mr. Adams. Objectetl to ns Incompetent, irrelevant, and immaterial.
A. I always had great respe<'t for their integrity.
Q. You had at that time no doubt but what they would honestly act In the
position they were called upon to act? — A. I had not.
i9& CABNTEY VS. SMITH.
Mr. Adams. Objected to as incompetent, irreleTant, and Immaterial.
Q. After they were sworn in what was done? — ^A^ We proceeded with the
emptying of the ballot box on several table& Mr. Cushlag proceeded wiOi the
sorting of the ballots* placing the straight Democratic in one pile and the
straight Republicans in another and the splits in a third pile. We proceeded
to count the Republican straights and rolled them in a roll and put the number
on the back and laid it up on a shelf and the same with the Democratic votes.
Then I swore in Mr. Clements and we proceeded with the count.
Q. Of the splits?— A. Yes, sir.
Q. Who did the reading?— A. I did.
Q. Did you correctly read the ballots you read? — ^A. I did.
Q. And gave to each man that had a vote thereon the vote in the tally?—
A. I did.
Q. Had you finally completed that count when the time came to close the
polls?— A. We had not
Q. How nearly had you completed it? — ^A. There were probably 8 or 10
and maybe a dozen ballots left yet.
Q. After the ballots were closed did you complete the split tickets on hand
that were cast after 2 o'clock? — ^A. Yes, sir.
Q. Then what did you do? — A. In the Interval we completed the 2 o'clock
count nnd the rest of the board had sorted the ballots cast from 2 o'clock on
and tiiey passed the split votes to me and I kept on reading.
Q. Did you honestly read those ballots? — ^A. I did.
Q. Whj't time did you flniilly complete the count?— A. I think about 10.30.
Q. Now. did Mr. Cushing remain as one of the clerks? — A. He did; yes, sir.
Q. Was there anyone else on that board that read to the checks any of the
ballots capt except yours^W^.- No, sir; there was not.
Q. Eh'ery one that yoir^d read, was it honestly read? — ^A. Y'es. sir; I
think so.
Q. Now. after the count was completed, what did you do with the returns?—
A. After the count was completed?
Q. Yes, sir; did you proceed to make out your returns? — A. Yes. sir: we
compared the two tally iJooks to see they were right, and I made the announce-
ment of the result of the election to those present. I don't know who was
present outside, because the- lobby of the room was dark.
Q. What did you do with the ballots that were voted? — ^A. After w^e found
that everything was correct and agreed with the poll book, we placed them
back in the ballot box and sealed them — I sealed them in the box and locked
the box myself.
Q. Are they there now: as far as you know? — A. As far as I know, they are.
Q. Possibly that is not clear. When you counted up the straight ballots,
were those put on the list at first or did you simply mark on the roll? — A. We
marked on the roll ; they were not put on until after the split votes were
counted on the tally book.
Q. They were rolled up and you marked what there? — A. Just on the Iwck
of the roll.
Q. When you were all through you added those to the splits? — A. Yes, sir.
Q. During the afternoon when you were counting the ballots that you com-
menced to count about 2 o'clock, so far as you know was there anv Intelli-
gence erot out as to the slate of the count? — A. I heard of none.
Q. Was there anyone assisting there in the preparation of the ballots there
that day? — A. There was.
Q. How many? — A. T think three.
Q. By itssfsting I mean to helT» them mark their ballots; Is that what you
mcMn? — A. No, sir; by assistance, I Interpret that as being shown where to
mark the ballot.
Q. How many did you actually mark their ballots for. or how many actually
hrd their brillots marked there that afternoon? — A. None that I know of.
Q. This assistance was simply Instructing them to mark their ballots? — ^A.
Yes sir: the construction of our booths was such that we had a very poor light
We had two electors there that could not see and they called Mr. Cushing
nnd myself in to assist them so they might get in the right column. The third
elector was Snnuiel Clements; he was iiartialiy blind and couldn't see the
ballot at all, but he sftys, " You take hold of my hand and show me where
to direct this mark on the ballot"
Q. And you did so? — A. I ascertained what ballot he wished to vote and be
says " a straight Republican ballot" I says to him, " then mark there '* ; and
he put it in the right place.
CABNBY VS. SMITH. 298
Q. Were any of the other of those men instructed where to place it? — ^A.
No. sir.
Q. Was the election and the counting of the ballots honestly conducted, for
anything you saw?
Mr. Adams. Objected to as Incompetent, Irrelevant, and immaterial.
A« Yes, sir ; It was.
Q. Was there any electioneering there at the polling place for John M. C.
Smith or anybody else? — ^A. I heard of none.
Q. Was there any challenging of votes? — A. None.
Cross-examination by Mr. Adams:
Q. There was nothing to prevent you from putting down the straight votes
on the tally-sheet book as soon as you determined the number of straight
votes, was there? — A. No, sir.
Q As a matter of fact, there is a column on the tally-sheet book Exhibit 17,
Isn't there, opposite the name of John M. C. Smith, "Representative in Con-
gress, total straight votes"? — A. Yes, sir.
Q. Likewise opposite the name of Claude S. Carney, Democratic candidate
for Representative, on the same exhibit there is a column "Total straight
votes" opposite his name? — ^A. Yes, sir.
Q. Why didn't you put those down when you had them counted? — A. We
dfdn*t know how many there were.
Q. You hadn*t counted all the ballots because you were not through; the jwlla
hadn^t been dosed? — ^A. The polls hadn't been closed.
Q. You put them down — put the counts you made — the result of the count —
in lead pencil on the back of the straight ballots, did you?^A. Yes, sir.
Q. How many straights did you have up to that time? — A. I couldn't tell
yon.
Q. Don't you remember that? — ^A. No, sir.
Q. Don't you remember how many straights you had for John M. C. Smith
that you took out of that ballot box that you opened at 2 o'clock? — ^A. No, rfr.
Q. Have you any recollection of approximately how many or how many
strai^t ballots yon had in the ballot box you opened at 2 o'clock on that day
in behalf of Mr. Carney? — A. No, sir.
Q. How many for him? — ^A. No, sir.
Q. In that count? — ^A. No, sir.
Q. You cant' remember that? — A. No, sir.
Q. None of those electors who applied for Instructions had their ballots
marked that day, as far as you know? — ^A. None of them had them marked.
Q. Yes, sir. — A. I don't entirely get your meaning.
Q. None of them had assistance in marking them except the one you have
mentioned? — ^A. That is all.
Q. Did you go in the booth with every man who asked for assistance that
day?— A. I think I did.
Q. Mr. Shaver didn't go In with any of them? — ^A. I think not, he was bu^
on his side of the room.
Q. You are sure that Mr. Shaver did not go in with any of them? — A. I
wouldn't swear to it.
Q. Mr. Griffin didn't go in with any of them? — A. I wouldn't swear to that.
Q. You say you went in with all who applied for aid? — A. Yes, sir; I think
I did.
Q. On that day?— A. Yes, sir.
Q. None of those who applied for aid were sworn? — ^A. No, sir.
Q, This ballot box, you say — this extra ballot box — you sny you had there,
had a little partition in it? — A. Yes, sir.
Q. Of course, In the emergency that arose there that day I suppose you could
have taken that partition out of that box, could you not? — ^A. It was ghiart fast
Q. Couldn't you have taken It out? — A. No, sir.
Q. There was no way you could get the board that was gluod on the inside
of the ballot box out, no saws or anything there that you could tiike that out
with? — A. No, sir.
Q. You couldn't send out and get a saw? — A. We possibly might.
Q. You could have taken a hammer and have knocked it out? — A. Possibly;
we had none of those things there.
Q. You would not have to go very far to get them? — A. No, sir.
Q. You could have puJt ballots in there anyway without the partition being
taken out? — A. No, sir.
Q. Why not? — A. The slot was not big enough.
294 CABNEY VS. SMITH.
Q. How big was the slot? — ^A. Probably a quarter of an inch in width and
S Inches long.
Q. Do you mean to say that a slot that was a quarter of an inch thick and
3 inches long that a ballot that had on the candidates for the respective offices
could not have been put through that on the 5th day of November, 1912 r do
you? — ^A. I do.
Q. Why? — ^A. It was too small.
Q. Why was it too small? — ^A. The ballot was too large and too thick.
Q. How thick was the ballot? — ^A. It was very heavy paper.
Q. How thick was the ballot? — A. I have no way of knowing.
Q. W«ns it thicker than the whole width of the hole? — ^A. No, sir: not a
single thickness.
Q. It could not have been as thick as the hole was wide? — ^A.' That depended
if doubled more than once.
Q. As it was voted as handed to the board of election to deix>sit.in the ballot
box, it was not so thick but what it could have easily gone into that hole as
far as the thickness was concerned? — A. I think not.
Q. You could have du'iblod it at least onop, and it woiiM still have cone
through that hole? — A. No, sir.
Q. As far as thickness was concerned? — A. Yes, sir.
Q. As far as thickness was concerned this ballot that you had there that
day — a single thickness, you say — what do you mean? — A. One thickness of the
paper.
Q. Well, it was not very thick jmper. — A. Pretty hea\y paper; yes. sir.
Q. It was not as heavy as that sheet of paper I show you now? — A. Ycfs, sir;
many times heavier.
(Paper shown witness was marked "Exhibit 58.")
Q. The ballot on which the names of condidates for Representative in Con-
gress were printeil on November 5, 1912, on the ballots that were used there in
that precinct on that day, when they were not folded at all, were many times
thicker, you say, than Exhibit 58 that I now show you, was it? — A. Yes, sir.
Q. How many times thicker was the ballot you had there on which the tliffer-
ent candidates for Representative in Congress were printed, which you used that
day, was that ballot when unfolded at all than this Exhibit 5S which you are
now shown? — A. I think three times as thick.
Q. When the ballot that was used there on that day on which the names of
the diflferent candidates for Representative in Congress were i)rinte<l, how was
that ballot presented to the board for deposit in the ballot box; how was it
folded, if folded at all? — ^A. It was folded so the initials came on the out.sldo.
Q. Now, how long and how wide was the ballot as folded, the one handed to
you gentlemen to be put in the polling place? — ^A. It was about 3 inches in
width and possibly about 6 inches long, about that.
Q. Three inches in width and 6 inches in length; about how thick? — A. I
couldn't say.
Q. The ballot was, as a matter of fact, in a folded condition when handeii to
the voter before he marked it? — ^A. No, sir.
Q. It was not? — ^A. No, sir.
Q. Did your board leave the ballot entirely unfolded and handed to the voter
in that way? — ^A. Yes, sir.
Q. When the ballot was folded in the presence of the voters there by the
officers of the election, after they had been marked by the vater, how big was
the ballot in a folded state? — ^A. I couldn*t say.
Q. It was not half an inch thick, was it? — ^A. Some of them were, I think,
the way they were folded.
Q. There were none of them a quarter of an inch thick, was there? — ^A. Yes,
sir ; one particular ballot, I remember.
Q. How many thicknesses of the ballots that you had there that day, would
it have to be folded to make one-half an inch? — ^A. I couldn't say.
Q. Do you know how many thicknesses folded would make a quarter of an
Inch? — A. I do not.
Q. What thickness of paper was these ballots printed on that you used
there? — A. I don't know.
Mr. Adams. We offer Exhibit 58 in evidence.
Q. You put the books in the ballot box that night, did you? — A. I did not.
Q. You saw them put in? — A. They were not put in there.
Q. None of them were put in? — A. I think Just one.
Q. Which one was put in? — A. The poll book.
OABNSy vs. QMITM, 295
Q. All the ballots going into that box that you opened at 2 o'clock were the
ballots on which the candidates' names were? — A. Yes, sir.
Q. So that the ballots for Representative in Congress and the other candidates
for office there that day were put in the ballot box you opened at 2 o'clock that
afternoon? — ^A.-Yes, sir.
Q. I suppose you put in some other ballots, too, didn't you, that were not
voted at that election — blanks? — ^A. No, sir.
Q. In addition to the ballots you put in the ballot box? — A. Yes, sir.
Q. In the same ballot box you had ot)ened at 2 o'clock? — ^A. Yes. sir.
Q. Did you put the tally book in? — ^A. I don't think so; one book only, if I
remember right
Q. You are sure no tally book was put in? — A. I am quite sure.
Q. Did you send the different returns of your board to the county seat? — ^A.
I did not ; no, sir.
Q. Did you Fee them sealed up? — ^A. They were not sealed
Q. They were not sealed when you left there that night? — A. No, sir.
Q. In whose possession were they left? — A. In the township clerk's office.
Q. That was D. C. Cole?— A. Yes, sir.
Q. That was the last then you saw of those election figures you filled out ou
that day? — ^A. Yes, sir.
Q. When you went away from there that night? — A. Y'es, sir,
Q. You didn't see them at any time before they were sent down lien* to
Charlotte? — ^A. Not after that night.
Redirect examination by Mr. Fellows •
Q. Did your board honestly get aloug with tluit emergency that arose there
to the best of your ability?
Mr. Adams. I object to that as incompetent, irrelevant, and Immaterial.
A. We did.
Q. If that little ballot box hud been the practical solution of the problem
there would you have used it?
Mr. Adams. I object to that as incompetent Irrelevant, and immaterial and
calling for the conclusion of the witness.
A. We would.
Q. The reason you didn't use it was because it was not practical ?
Mr. Adams. Objected to as incompetent, irrelevant, immaterial, and leading.
A- We had discussed that small box and the board decided it was of no ac-
count to U8.
RecroRS-examlnation by Mr. Adams:
Q. You didn't try to deposit any ballots in the little box. did you? — ^A. It was
not large enough.
Mr. Adams. I move to strike out the answer as not responsive.
Q. You didn't try to deposit any ballots in that little box, did you? — A.
No, sir.
Q. You didn't try to take the partition out and fix It so you could make an
effort anyway to deposit these ballots In it. did you? — ^A. No, sir.
Redirect examination by Mr. Fellows :
Q. When these ballots were put back in the box, were they rolled together? —
A. Yes, sir ; all smoothed out and rolled together and tied up.
Q. So they would take much less space than when separate? — A. After they
had gone through those rollers in the box they would become open, consequently
would take up more room than as though compact.
Kecross-examiuation by Mr. Adams:
Q. The rollers would oijen and press them togc»ther like a flat Iron?— A. I
don't think it would have a pressure.
Q. They have some pressure, don't they? — ^A. Yes, sir.
Q. Had pressure enough so they would open up and press the folds of the
ballot tighter together as It went through than it was before, unless it was
then so tight it would not operate on it at all? — A. To a certain extent it
would; but when we opened the ballots we found the ballots spread out more
or less.
Q. The rollers through which the ballots went into that ballot box were
rubber probably, were they not? — A. I think wood.
Q. They came close together so you had to turn a crank in order to get
the ballots down through? — ^A. Yes, sir; I could force a ruler down between
them, but could not force a ballot in without turning the crank.
2M OABHSr n. 8MIXS.
Q. By fOTCing a ruler ia yoa w<mld press t^ie rollers a^ortV-A. Tes, sir.
Q. So to get a ruler lu you would hare to press tke rollers apart to get the
mler between the roUersT— A. Yes, sir.
WILBUit C. MAiniN, belJig first sworn to tostify to tko truth, and nothing
but the truth, testified on behalf of the contestee, as follows :
Direct examination by Mr. Fellows :
Q. Mr. Martin, where do you reside?— A. Carmel.
Q. How long have you lived in the township of Carmel?— A. Five years.
Q. You were living there on the 5th of November last? — A. Yes» sir.
Q. What, if anything, did you have to do with the election?-^. I was clerk
of the board.
Q. You commenced In the morning? — ^A. Yes, sir.
Q. You kept one of the poll lists?— A. Yes, sir.
Q. Who kept the other one? — ^A. Mr. Cole.
Q. What was his position in the township?— A. He was township clerk.
Q. Did you take a recess at noon? — A. Yes, air.
Q. How long a time? — A.- An hour.
Q. Did the board go together to get their dinners? — ^A. No, sir.
Q. During the noon hour was the question of the capacity of the ballot box
discussed? — A. It was to some extent.
•Q. Why was that? — A. We were afraid It would not be large enough hold
all the ballots.
Q. At that time were means discussed as to how they would get along with
it? Or was that later?— A. That was later.
Q. What means were discussed for the purpose of getting along with It?
Mr. Adams. I object to that as Incompetent. Irrelevant, and immaterial.
A. W^e hardly knew what to do and we talked the matter over and wondered
what we ought to do and, of course, there was no conclusion arrived at definitely
at noon.
Q. Later was the conclusion arrived at? — ^A. Yes, sir.
Q. That was discussed among the members of the board? — A. Yes, sir.
Q. Do you know whether It was discussed with anyone not members of the
board? — ^A. Ithlnk It was.
Q. As a result of that discussion what was It finally determined to do?— A
We opened the box up and took the count.
Q. Was that done? — A. Yes, sir.
Q. W^here was the count taken? — A. On the table a little ways from where
the ballot box stood when voting.
Q. Who did the counting? — A. Mr. Huber, Mr. Cushlng, and Mr. Clements.
Q. Was Mr. Iluber the gentleman who has been here? — A. Yes, sir.
Q. He was a regular member of the board? — A. Yes, sir.
Q. Mr. Clements and Mr. Cushlng were both members or both residents of
the township, were they? — ^A. Yes, sir.
Mr. Adams. I move to strike out the answer, and object to the question
whether he was a regular member of the board, on the ground that It Is incom-
petent and the conclusion of the witness.
Q. Were they good, substantial citizens?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
A. I always thought they were.
Q. They are recognized there as honorable, upright men? — ^A. Yes, sir.
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial and
hearsay.
Q. Did they have the count completed before the polls were closed? — ^A. No,
sir.
Q. Was the result as they went along made public, or anything of that kind? —
A. Not that I heard.
Q. Do you recollect the circumstance of some voters being Instructed? —
A. I saw "several persons there asking for instructions.
Q. How many would you say, all told? — A. I don't remember of but two, that
I remember of.
Q. Who was called in there besides members of the board when they were
being instructed?— A. Mr. Cushlng and Mr. Huber assisted them.
Q. Mr. Gushing was the Democratic challenger? — ^A. Yes» sir.
Q. Was he present during the installation of the board? — ^A. Yes, sir.
Q. Was there any attempt at electioneering that you saw or heard around the
board?
OAXISmY T8. SMITH. 397
Bfr. Ai>AifB. T object to that as fncompetent, Irrelevant and tttmatertal and
calliRs for the conclmfon of the witness; If anything of that kind oceofrtad,
the witness should state what It was.
A. I didn't hear of anything.
Q Ton did not eontinne until the rotes were all finally counted, vntil the
final count was made, or did you? — ^A. Yes, sir; I did.
Q. Wlio read the ballots after the polls had closed? — ^A. Mr. Hnber.
Q. He read all the ballots?— A. Yes, sir.
Q. Do you remember the names of those who were instructed? — ^A. Mr.
Clements was one and Mr. Darling was the other man's name.
Q. Has Clements any physical defect? — A. His eyes are bad — a bad eye.
Q. That would be apparent to anyone who saw it? — A. Yes, sir.
Q. Mr. Dowling, the other man, did he ask to have his ballot marked or ask
instructions as to how to vote? — A. I don't know.
CroFS-examinntion by Mr. Adams:
Q. Mr. Clements had one defective eye? — ^A. I think so.
Q. The other one was not defective? — A. I didn't know him very well.
Q. That is the way you understood it? — ^A. Yes, sir.
Q. One eye you could see was not right, could you, that day there? — A. Yea,
sir.
Q. The other eye looked all right? — A. Well, no; it did not. If I remember
rightly he had glasses on — a glass on one eye.
Q. On the bad eye? — ^A. It was ''overed in some way, I don't know exactly
how.
Q. The other one was not covered and looked all right? — A. No, sir; it did
not.
Q. How did it look? — ^A. It looked as though he could not see very well out of
that
Q. What was its appearance? — Describe it. — A. It looked as though he couldn't
see very good ; he walked slow, kind of felt his way around. Of course, he took
his balTot and held it up to the window and looked at it, then asked for some
assistance of some kind to help him.
Q. That was Clements? — ^A. Yes, sir.
Q. This man Dowling, did some one go in the booth with him? — A. He went
In first then opened the door and asked for some help, and those two gentlemen
went in.
Q. He was not sworn ; no oath was administered to him at all? — A. No, sir.
Q. He looked all right physically to you? — ^A. Yes, sir.
Q. He did not say that anything was wrong with him physically? — A. No, sir.
Q. He was not blind?— A. Not that f saw.
Q. You knew him before that day? — A. Not a great while.
Q. You had seen him before? — ^A. Yos. sir.
Q. You had seen him move around before that election day? — A. Yes, sir.
Q. He moved around all right, there was nothing to indicate that there was
anything physically wrong with him, nothing to indicate there on that day
when he asked for help that there was anything wrong with him physically? — A.
N<K sir.
Q. At noon you adjourned? — ^A- Yes, sir.
Q. What did you do with the ballot box? — ^A. We left it where we used it.
Q. Did you put any seal on it? At noon? — A. No, sir.
Q. When you went away to lunch and left it there, there was no seal on It? —
A. We didn't all leave the building.
Q. Who didn't leave the building? — ^A. I and Mr. Cole stayed.
Q. Didn't you go to Inneh? — A. No, sir; I stayed' to my lunch.
Q. Did you stay in the room where the ballot box was? — A. In the same
room, yes. sir ; I did.
Q. Was there any partition between you and the ballot box when you stayed
there at noon? — A. Just a picket fence, you might say.
Q. So you and who else was left there alone with the ballot box? — A. Mr.
Cole, the clerk.
Q. He didn't go to lunch that day?— A. No, sir.
Q. He brou^t his lunch? — ^A. Yes, sir.
Q. Where were the election books? — ^A. They were on the table.
Q. They were not put In the ballot box at noon and locked in? — ^A. No, sir.
Q. They were left on the table? — ^A. Yes, sir.
Q. Just as you got through using them ; they were left right there until the
rest of the hoard came back? — ^A. Yes, sir.
298 CABNET VS. SMITH.
Q. Xou stayed there until the polls closed— you stayed there until the board
left that night after they got through with what they were doing?— A. Yes, sir.
Q. You left there and got through about what hour?— A. I think about 11
o'clock, or something like that.
Q. Was there anyone left in the room when you left?— A. Yes, sir; the
township clerk.
Q. Was there anybody else?— A. I think Mr. Huber was there; I am not
positive about that, though.
By Mr. Fellows:
Q. Were those ballots tampered with during that noon recess?— A. No, sir.
Q. Or the books — ^A. No, sir.
By Mr. Adaks:
Q. Didn't you go out any time that day while you were there?— A. Yes, sir.
Q. How many times? — ^A. I couldn't say.
Q. When first?— A. I think the middle of the afternoon, once.
Q. How long were you gone? — A. A minute or two.
Q. Is that all?— A. Yes, sir.
Q. Just a minute or two? — A. Yes, sir.
Q. Did you go out again that day? — A. I was out to supper; I don't remember
of going out In the afternoon.
Q. Were you out to supper? — A. Yes, sir.
Q. Did they take an adjournment at supper time? — A. Yes, sir.
Q. The board took an adjournment? — A. Yes, sir.
Q. Did they all go out to supper? — ^A. No, sir.
Q. Who left when you did?— A. Mr. Huber.
Q. Who remained there when you went away, you and Huber? — ^A. The rest
of the board.
Q. When you got back did you find anybody there? — A. The rest of the board
was there waiting for us.
Q. Those that you left there when you went, were they still there when you
came back? — A. Yes, sir.
Q. How long were you gone, then? Were they counting ballots when you
went to supper? — ^A. No, sir.
Q. Were they counting ballots when you go back? — ^A. No, sir.
Q. What were they doing? — A. Just getting ready to go to work again.
Q. What were they doing? — A. They were eating their lunch.
Q. What were they doing when you got back? — A. They were squaring around
the table, getting ready to go to work when we came in.
Q. Did they have the ballots there looking at them? — A. I don't think they
were doing anything with the ballots.
Q. Where were the ballots? — A. In the table.
W. L. HUBER, recalled, testified further on behalf of the contestee, as fol-
lows:
Direct examination by Mr. Fellows:
Q. I show you Exhibit 17. Are the •figures that appear In here opposite the
names of Representatives In Congress the correct figures of the number of
votes each of such candidates received at that election? — A. To the best of my
knowledge.
Q. You know of no reason why they are not? — A. I do not.
Cross-examination by Mr. Adams:
Q. Did you put them down in the book? — A. I did not.
Q. You didn't keep the tally, did you? — ^A. No, sir.
Q. You didn't keep the tally yourself? — A. I did not.
Q. You simply called oflf the names of the candidates who received votes on
each ballot, and as you did the calling ofl* the tally clerks recorded something? —
A. They did.
Q. You didn't watch the tally book to see whether they put It down correctly
or not? — A. No, sir: I did not.
Q. Now, you swore in Mr. Gushing and- Mr. Clements? — ^A. Yes, sir.
Q. As clerks of the election? — A. Yes, sir.
Q. Cortez Cnshing and William Clements? — A. Yes. sir.
Q. You personally administered the oath to them and each of them, as clerks,
to perform the duties of clerk at that election? — ^A. Yes, sir; I did.
*«
it
OABNET YB. S^OTH. 299
Q. You are sure about that, are you? — ^A. Yes, sir.
Q. I call your atteution to Exhibit 27, page 3 thereof, and I wish you would
examine the last certificate on page 3 and tell me now whether you swore
either of those men in as clerks of that election? — ^A. Yes, sir; that word
inspector ''has been written in since.
Q- Whose handwriting is the word "inspector" in? — ^A. I don't know.
Clerk " is crossed out and ** inspector " written In.
Q. Don't you know that you swore each of them in as inspector instead of
clerk ?-~A. I did not
Q. Don't you imow that is the return that was made that day by the board,
and part of that return was Just as it is there, that they were sworn in as
inspectors each one of them, Mr. Gushing and Mr. Clements? — ^A. No, sir.
Q. Did you hear Mr. Cushing's testimony when on the stand; were you in
the room? — ^A. Yes, sir; part of the time.
Q. Did you hear him testify that he was sworn in as an inspector of that
election? — A. I did not.
Q. You didn't hear him testify to that?— A. No, sir.
Q. You say now that he was not sworn in as an inspector of that election,
do you? — A. I do; I administered the constitutional oath as clerk of the election.
Q. Thnt is your signature there under each of those certificates I call your
attention to — W. L. Huber? — A. Yes, sir.
Q. It appears on the book that the word " clerk " is crossed out and the
word •* inspector" written over it in each certificate? — ^A. Yes, sir.
Q. Do you know whose handwriting that is? — ^A. No, sir; I do not.
Q. Well, you see, do you, that that word "inspector" was not written over
the word " clerk " in those two certificates before that return was signed or
was left with the township clerk on the night of that election there in the voting
place? — A. It was not written there when I signed that certificate.
Q. It was not written in at that time? — ^A. No, sir.
Redirect examination by Mr. Fellows :
Q. As you read the names from the ballots how did thoy call back to you —
the checkers? — A. If any one received four, then when one made five they would
say " five," and the next one would be one.
Q. Otherwise they would give the number they had? — A. Yes, sir.
Q. They would call back the correct numbers to you? — A. One would call
the number and the other would say '* check."
Q. They kept that up all the way through? — A. I think so.
Q. So if there had been any mistake in checking you would have noticed it? —
A. I think so.
Q. And it would have been discovered at the time? — A. Yes, sir.
Q. This exhibit that Judge Adams called your attention to, No. 27, the word
"clerk" is In printed form in each one of those? — A. Yes, sir.
Q. That is the oath you administered to them? — ^A. Yes, sir.
Q. The word " Inspector" is written with a pen and ink? — ^A. Yes, sir.
Q. That is not your writing, the word " inspector"? — A. No, sir.
Q. They were sworn in as clerks, and the blank that was used for that was
the form for clerks? — ^A. Yes, sir.
Q. You say that word " insriector " up there, would you, looks like Mr. Cole's
handwriting? — A. I am not familiar with his handwriting; I couldn't say; it
might possibly be.
Mr. Adams. I move to strike tliat out as not the proper way to prove hand-
writing, and as incomi)etent and the conclusion of the witness.
Recross-examination by Mr. Adams :
Q. You don't know when you called "check" whether the other checked or
not?— A. I didn't call " check."
Q. When they called " check " you don't know whether each man put a cross
mark of the four tallies? — A. I do not.
Q. All you know is what they called out? — A. Yes, sir.
HERBERT SHAVER, being duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified as follows in behalf of the contestee :
Direct examination by Mr. Fbankhaubeb:
Q. You live in Carmel? — A. Yes, sir.
Q. How long have you lived there? — ^A. All my life.
Q. How old are you? — ^A. I am 49.
8^ CAElfHY VS. aMITfi.
Q. What official positions have you held in that township? — ^A. T have be«i
trea surer two yea re and jnstfee of the peace since 1906.
Q. Were you ^stice of the peace in 1912? — A. Yes, sir.
Q. On the 5th of November? — ^A. Yes, sir.
Q. Were you a member of the election board? — A. Yes, sir.
Q. Now, on this day in question, what part of the worlc was appointed to
you — what part did you do? — A. I handed the ballots to the voters.
Q. Who put the Initials on? — A. Mr. Huber.
Q. And you handed the ballots to the voters? — ^A. Yes, sir.
Q. Something has been snld about certain gentlemen aslving for instructions
and assistance; explain on the record all you remember about that. — A. Yon
mean Mr. Clements?
Q. Anyone who came in there. How many were there? — A. Oh, there were
three or four.
Q. What did you do — what was done? — A. They asked for assistance.
Q. Do you mean assistance or instructions? — ^A. Instructions.
Q. Tell what they did and we can tell what it was. — A. Most of them said
they wanted some help to vote.
Q. What was done? — ^A. I would call Mr. Hu!>er and Mr. Cushing and they
would see to it.
Q. How many do you thiulv thej' went in the booth with? — A. I believe about
four.
Q. Was Mr. Cushlng in every time Mr. Huber went in? — A. I think he did.
Q. Do you know who those voters were? — A. I do.
Q. "Who were they? — A. Mr. Clements, Mr. Do\^tis, Earl Housington, and I
think Mr. Knapp.
Q. Mr. Clements was an old man? — A. Nearly 70.
Q. What was the trouble with him? — A. One eye was entirely gone and he
couldn't see very well with the other.
Q. What did he say and what was done? — A. I think he went in the booth aud
came out and wanted some help.
Q. What did he siiy and who was it said to? — A. It was said to me.
Q. What did you do then? — A. I called Mr. Huber and Mr. Gushing.
Q. W^hat did they do?— A. They went with him in the booth.
Q. That was the last you knew of it? — ^A. Yes, sir.
Q. Mr. Downs, what was the trouble wltli. him? — A. I don't believe h% can
read.
Q. How old is he, about? — A. Oh, probably 75 or 70.
Q. What did he do, did he ask for assistance? — A. I think so.
Q. What was done then? — A.I called Mr. Huber and Mr. Cushing.
Q. W^hat did they do, if you remember? — A. They went with him in the booth.
Q. Mr. Hoisiugton, what was his trouble? — A. I don't believe he can read.
Q. Did he say that? — ^A. No. sir; he did not— I don't think he did.
Q. What did he say? — A. That he would have to have a little help.
Q. What was done? — A. I called Mr. Huber and Mr. Cushing again.
Q. What did they do, do you remember? — A. They went in the booth.
Q. Mr. Knapp, how was It with him. — A. He was almost blind.
Q. I>o you know of your own knowledge of any of those four having their
tickets marked? — A. I do not.
Q. You don't know how many they actually marked?— A. I do not.
Q. You think that was the outside number who asked for instructions and
assistance? — A. I do.
Q. Coming up toward noon, what occurred there with reference to the ballot
box? — A. It was getting i)retty nearly full.
Q. What was said and done? — A. W^e talked it over a little and at noon Mr.
Griffin tried to get McPeek.
Q. Who was McPeek V — A. The prosecuting attorney, and he could not get
him.
Q. What was he going to phone him for? — A. To see what we were to do.
Q. You didn't get him ?— A. No, sir.
Q. Go on. — A. About 2 o'clock we emptied the ballot box.
Q. Before that, was there any talk with anybody else around there? — ^A. Yes,
sir.
Q. Toll that.— A. Mr. Griffith apkod Mr. Ells what he thought
Mr. Adams. I object to any conversation with Mr. Ells; he was not a mem-
ber of the board, and it is incompetent, irrelevant, immaterial, and hearsay.
A. He asked Mr. Ells what he thoui^ht about it, aud he mid as fur as h»
was concerned it would be all ri^ht.
Q. Mr. Ells was one of those who have been testified about here; he was tho
Democratic candidate for resriPter of deeds? — A. Yes, sir.
Q. Are you acquainted with biiu? — ^A. Yes, sir.
Q. You had known him for some time) — ^A. Yes, ab*.
Q. What sort of a man Is he, as to being active in politics?
Mil Adams. Objected to as incomi)etent, irrelevant, and immaterial.
A. Quite active in his party.
Q. Do you know of 4Uiy particular office he holds there now In the party
organization?
Mr. Adams. Objected to as incompetent irrelevant, and immaterial.
A. I couldn't Bay.
Q. Whether he was active in politics or not; what do you say to that?
Mr. Adams. Objected to as incompetent irrelevant and immaterial.
A. He always has been ; yes, sir.
Q. How long has he lived there? — A. I guess all his life.
Q. What office has he held, and about how long has he held it?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial and not
the best evidence.
A. He used to be clerk year after year — I don't know how many years — then
he has been supervisor several terms.
Q. When he held those offices he was a member of the election board?
Mr. Adams. Objected to as incomi)etent and immaterial and not the l>e^t
evidence.
A. Yes, sir.
Q. Have you known him to sit w^ith the board there? — A. Yes, sir,
Q. Give some idea how many times.
Mr. Adams. Objected to as irrelevant and immaterial.
A. Several times; I couldn't Just name them.
Q. How many times have you sat with the board?
Mr. Adams. Objected to as incompetent and Immaterial
A. I presume 10 or 12 times.
Q. I want to ask you whether when it came up to this time when the box was
full what was done with reference to the box; what did you do to relieve the
box? — ^A. We closed the polls and unlocked it and opened it and emptied it
Q. Who unlocked it?— A. Mr. Griffin.
Q. After it was unlocked what was done? — A. It was emptied on the table.
Q. Then what? — ^A. It was emptied and relocked and the i)ol]s oi)ened.
Q. Did you have any other ballot box to use? — A. We had two little wooden
boxes.
Q. What were you doing with them? — A. We used one for woman suffrage
and for the amendments.
Q. What was the other used for? — A. The other one the lock would not work
and had not for years.
Q. How big was that box? — A. As large as that book and probably 6 inches
hi^.
Q. What book did you hold it?— A. The tally sheet book.
Q. Was it discussed whether you could use that box or not? Did you talk
about it you and the other members of the board? — A. I couldn't say.
Q. Anyway, who went to counting those ballots then? — A. Mr. Huber, Mr.
Cushing. and Mr. Clements.
Q. Was Col. Spencer there? — A. Yes, sir.
Q. At that time?— A. I think he was.
Q. Now, where is his home?
Mr. Adams. Objected to as incomi)etent, irrelevant, and immaterial.
Q. Where was it in November? — ^A. Charlotte.
Q. What business did he have out there, if you know?— A. I don't know.
Q. How many miles is it from here there? — A. Three, I think.
Q. How long did he stay there? Was he there all day?— A. He was there
all day, I think.
Q. Out and in. Was he there after the polls closed?— A. I think he was.
Q. What did he appear to be doing there?- A. I couldn't say.
Q. Was he a Democrat in politics?— A. Yes, sir.
Q. What do you know about his activity in politics?
Mr. Adams. Objected to as incompetent and immaterial.
302 OABKBY VS. SMITH.
A. I guess he is quite active.
Q. l^at is from your own observation? — A, Yes, sir.
Q. Did he malce any suggestions that day, that you heard, about the course
to pursue? — A. I couldn't swear that he did.
Q. Was he around there that day, so far as you loiew, working for any par-
ticular person? — A. Not that I know of.
Q. Did he have his automobile there that day? — ^A. Tes, sir.
Q. Did. he bring any voters to the polls that you know of? — ^A. Not that I
know of.
Q. Did he have that automobile decorated with any banners that day?
Mr. Adams. Objected to as irrelevant and Immaterial.
A. I don't tmow.
Q. Did you see him during that campaign have any signs on his automobile?
Mr. Adams. Objected to as Irrelevant and immaterial.
A. I couldn't say that I did.
Q. Did he, as far as you know — was he there, as you remember, at the time
this course was decided upon to open the box?
Mr. Adams. Objected to as irrelevant and immaterial.
A. I think he was.
Q. Was Mr. Ells also there? — A. Yes, sir.
Mr. Adams. Objected to as irrelevant and immaterial.
Q. Now. did you stay tliere until — did they complete the count; the after-
noon count — up to the time the polls closed? — ^A. No, sir.
Q. About how many ballots do you think they had left? — A. A few; I couldn't
tell how many.
Q. After that was the count continued? — A. Yes, sir.
Q. When was It completed? — A. About half past 10 o'clock.
Q. What did you do toward counting after 5 o'clock? — A. I think I looked
over Mr. Huber's shoulder at the tickets.
Q. As he read them? — A. Yes, sir.
Q. Did you do that all the while until he got through? — ^A. I couldn't say.
Q. Who did the tallying after the iwlls closed? — A. Mr. Cole and Mr.
Cushlng.
Q. Did you watch the tally ?--A. No, sir.
Q. Where were they, up where you were? — ^A. At the same table.
Q. How was the count conducted; give a brief description of It? — A. Mr.
Huber would read the names off, and they would make a record of it in that
column and call *' one, two, three, four," " check."
Q. Are you acquainted with those two boys? — A. Yes, sir.
Q. What sort of gentlemen are they? — A. They are all right.
Q. Are they men of honesty and integrity, as far as you know? — A. They are.
Mr. Adams. Objected to as incompetent and immaterial.
Q. Mr. Huber, what sort of a man is he in the community where he lives?
Mr. Adams. Objected to as irrelevant and Immaterial.
A. He Is a good man.
Q. Is he a man who, in your opinion, who would miscall any of those ballots?
Mr. Adams. Objected to as irrelevant and immaterial.
A. No, sir.
Q. When the vote was completed — or the ballots counted, I should have said —
what did the boar<l do with the returns? — A. Filled out the book, put it back in
the box. ami locked It.
Q. Who locked the box ?— A. Mr. Huber.
Q. Now, state whether you gentlemen were all there together when the state-
ments were signed, and returns. — A. We were when they were signed; yes, sir.
Q. Do you remember whether or not the supervisor went away from there,
Mr. Griffin?— A. Yes, sir.
Q. Was everything signed up before he left? — A. I think so.
Q. Did you sign (hem all yourself, too? — A. Yes, sir.
Cross-ex nniln.Mt ion by Mr. Adams:
Q. Did you see the hixUot ho\ was sea'ed up when you left? — A. Yes, sir.
Q. Who sealed itV — A. Mr. Hnher used the stamp.
Q. How was it se:ile<lV — A. With a piece of canvas over the hole and wax
melted with a match iv.ui stamped.
Q. A stamp on itV — .\. Yes, sir.
Q. Who did tlu'tV— A. Mr. Huber used tbe stamp.
Q. And Mr. IIubiM* locked the box? — A. Yes, sir.
CABNBT VS. SMITH. 808
Q. And the ballots were put in the ballot box that had been voted "for the can-
didates for office that day at that election?— A. Yes* sir.
Q. Any books put in?— A. I think there waa
Q. What books were put In?— A. I think the poll book.
Q. Any other books? — A. I couldn't say.
Q. You say you think the poll book was put in ; do you know whether it was
or not? — ^A. Yes, sir; I believe I do.
Q. Who put it in?— A. I couldn't say.
Q. Did you see anybody put it in?— A. I believe I did.
Q. Who? — ^A. Well, I couldn't tell you who.
Q, Well, was it somebody you knew?— A. Certainly.
Q. You can't tell us who it was? — ^A. No, sir.
Q. Mr. Ctole and Mr. Gushing did all the counting that was done there?— A.
I think they did ; yes, sir.
Q. Up to the time there was any tallying to do, and as soon as there was any
tallying to do, Mr. Gushing and Mr. Gole did all the tallying?— A. Yes, sir.
Q. What time did Mr. Spencer get there that day?— A. He came a pretty
good time in the morning.
Q. I would not know whether 4 o'clock in the morning or some other time
in the morning? — ^A. Probably 8 o'clock.
Q. You say he got there about 8 o'clock — ^A. Somewhere in that neighbor-
hood; yes, sir.
Q. Might it not have been 0? — A. It might have been.
Q. Might have been 10? — ^A. I don't think so.
Q. Was it 9?— A. I couldn't say.
Q. You don't know whether 8 or 9? — A. Not for sure.
Q. He was in there all day, was he, in the voting place? — ^A. I don't presume
be was there every minute; he was outside, I think, part of the time.
Q. You didn't see him outside, did you? — A. Yes, sir.
Q. Did he stand out in front some? — ^A. A little bit.
Q. Were there some time or times when he was not inside you saw him
standing outside? Were there any times be was not inside that you saw him
outside that day? — ^A. No, sir.
Q. W^as he in there every minute after 5 o'clock until you got through with
the count? — ^A. No, sir; he didn't stay until we got through.
Q. What time did he leave?— A. Probably 6 o'clock.
Q. Was that the last you saw of him that day? — ^A. Yes, sir.
Q. You were a Republican that day? — A. Yes, sir.
Q. Mr. Huber was a Republican that day? — ^A. Yes, sir.
Q. Mr. Griffin was a Republican? — ^A. Yes, sir.
Q. D. C. Gole was a Republican? — ^A. Yes, sir.
Q. Mr. Glements — what was his politics that day? — A. He was a Republican.
Q. Wilbur G. Martin — ^what was his politics?— A. He was a Democrat.
Q. Who was chairman of your board? — ^A. Mr. Griffin.
Q. I understood you to say a while ago when some of those men came in for
instructions that day that you directed who should go Into the booths with
them? — ^A. I did; I generally called Mr. Gushing and Mr. Huber.
Q. Mr. Griffin was chairman of the board, wasn't he?— A. Yen, sir.
Q. Why didn't he call out who should go in; don't you know? — ^A. I don't
know^.
Q. But he did not call out; you designated who should go in with these
fellows when instructed? — A. Yes, sir.
Q. None of those men who applied for helj) there that day to mark their
ballots were swoni — ^no oath was administered to them before the inspectors
went in the booth with them? — ^A. No, sir.
Q. You opened your ballot box at 2 o'clock In the afternoon, and the votes in
the ballot box began to be counted then? — A. Yes, sir.
Q. That was the ballot box in which all the votes for the different candidates
for Reprejsentative in Gongress hnd been deposited and had been voted there
by the electors up to that time? — \. Yes. sir.
Q. You closed the ik)11s when you opened the ballot box? — ^A. Yes, sir.
Q. After you had closed them to oi)eu that ballot box? — A. Yes, sir.
Q. How long were the polls clostxlV— A. Two or three minutes, I think.
Q. Did you receive any votes during the time that adjournment was In
force? — A. No, sir.
Q. Were any men in the l)ooths during the time that adjournment was In
force to open that ballot box? — A. I couldn't say as to that.
S04 CABKSY VS. SMITH.
<^. Were there some iu the booths at that time? — ^A. I dea't know.
Q. You think that four uieu asked for instructions or assistaiuce ia uwrkio^
their ballots?— A. 1 think so.
Q. Were tliere more than four? — A. I would not think there were; possibly
there might have been another.
Q. Mr. Huber put the initials on the ballots? — ^A. Yes, sir.
Q. While he was reading the ballots, beginning at 2 o'clock, he didn't Initial
any ballots after that time, did he? — A. I think not; he had »ioa^ initialed.
Q. How many did he have in it Ui led when he began reading the ballots?—
A. I don't know.
Q. I'he re?t h«d not yet voted? There were how many ballots voted after
Mr. Huber began counting at 2 o'clock? — ^A. I don't know that.
Q. About how many would you say were voted after Mr. Huber began count-
ing the ballots — when that ballot box was opened at 2 o'clock up to the time
your iwlls closed? — A. I couldn't Kay.
Q. Sixty? — A. I couldn't guess anywhere near it.
Q. Wouldn't you say that at least 60 ballots were cast from 2 o'clock until
5 o'clock that day? — A. 1 think there were; yes, bir.
Q. Were those all initialed by Mr. Huber before he began counting? — ^A. Yes,
sir.
Q. So that he had more than 25 ballots already initialed and not yet voCed
when he began to count about 2 o'clock that day? — A. Yes, sir.
Q. Did anybody else initial any l>allots there at that election except Mr.
Huber? — A. No, sir.
Q. Did you initial any? — A. No. sir.
Q. You acted all day in the capacity of handing ballots to voters? — ^A. Yes,
sir.
Q. Did you go into the booths with any one of those men who asked for
instructions or a shl stance in marking their ballots? — ^A. No, sir.
Q. How long had you had this ballot box there in that township prior to the
5th day of Xovenil>er, 1J)12. which you used on that day to deposit the votes for
Kepreseutative in Congress in? — A. I don't know.
Q. Had you had it at the election for Congressmen two years before that? — ^A.
Oh, yes.
Q. Did j'ou have it at the presidential election and the election for Congress-
men four years before the election held November 5, 1912? — ^A. Yes, sir.
Q. The election for presidential electors and Congressmen held four years
prior to November 5. 1912. this particular ballot box in which yon deposited
those ballots for Representative iu Congress on November ^ 1012, was used at
your election for dei)ositing ballots for Uepresentative in Congress four years
prior to that time, was it not? — A. I think so.
Q. Did you act on the board of that township four years prior to the election
that was held November 5, 1912, when Uei)re9entative6 in Congress were voted
on in that township? — A. I couldn't say.
Q. Refresh your recollection a little about that and see if yon can't think
l>ack to that time? — A. I don't believe I was.
Q. Do you know who did act on your board from your own observation or
information who acted on your board four years prior when Congressmen were
voted fbr. Four years prior to November 5, 1912? — A. I think Mr. Ells was
chsMrman — our supervisor.
Q. Do you recall any other members of the board? — ^A. I do not; no, sir.
JOHN C. NICHOLS, being first sworn to tell the truth, the whote truth, and
nothing but the truth, testitied in behalf of the contestee as follows:
Direct examination by Mr. Fbankhauseb:
Q. You live in Charlotte?— A. Yes, sir.
Q. You are an attorney at law? — A. Yes, sir.
Q, Practicing law now? — A. Yes, sir.
Q. What office do you hold, if any? — A. Circuit court commissicmer.
Q. What other official ix)sitions have you held in the county? — ^A. I have been
Justice of the peace and county clerk.
Q. Have you been deputy county clerk also? — A. Yes, sir.
Q. W^hen were you elected circuit court commissions?
Mr. Adams. I object to it as not the best evidence.
A. I Wi>8 elected at the last election.
Q. I mean the last time? — ^A. Yes, sir.
Q. November 5, 1912?— A. Yes, sir.
CABNBY VS. SMITH. 805
Q. Now, on that el^tJon day where was your residence in the city? — ^A.
In the second ward.
"Q. Were you a voter in the second ward?— A. Yes, sir.
Q. Where did the second ward conduct its election? — ^A. In the basement of
the <^i|rthpns^.
Q. In the bulling we are now In? — ^A. Yes, sir.
Q. You were at that time acting as cleric, were you? — ^A. Yes, sir.
Q. County derk? — A. Yes, sfr.
Q. You had been appointed county clerk? — ^A. Yes, sir.
Mr. Adaus. I move to stride out the answer as incompetent on the ground
thut there is better evidence of it, and I object to the (juestion for the same
reason.
Q. When were you appointed county clerk?
Mr. Adams. Objected tQ as not the best evidence and as incompetent
A. I think on tlje 4th day of November.
Q. Wb^n (Jid you begin to act as county derk? — A. Immediately.
Q. Were yoi^ acting as county clerk on the 5th day of November, 1912? — ^A.
Yen, sir.
Q. Where did you vote? — ^A. In the second ward.
Q. What time in the day? — A. It would be after 10 o'clock and before 2.
Q. You acted as challenger in that ward? — ^A. Yes, sir.
Q. For the Republican Party? — A. Yes, sir.
Q. As such challenger were you behind the railing? — A. Sometimes.
Q. Were jrou there all day? — ^A. No, sir.
Q, What part of the day were you there, or about what portion of the
tii^e? — A. Well, I think I began about half-past 7, and was out a little while to
dinner, I think I went away about half past 1 or 2.
Q. Something has been said here on the contestant's side that you did some
work there on the election board T I wish you would explain how you came to
do it, and what you did? — A. Mr. Hamilton was taken sick and Mr. Knowles the
other member of the board and one of the aldermen
Q. Who was Mr. Hamilton? — A. He was one of the aldermen; he was the
Junior alderman of the second ward and Mr. Knowles was the senior alder-
man.
Q. He was t^ken sick; what do you know about that? — A. I know what he
EJiid.
Q. Tell it. — ^A. He said he was sick and started for home, as I understood
it, and at the time I was sitting just outside of the rope.
Q. What time was that? — A. I think near noon. Mr. Knowles had a ballot
in his hand extending it to an elector that wanted to go into the booth, one
bad just came out and he asked me to take that ballot and deposit it in the
box, and I did, and I think mayl>e four or five or six altogether I deposited in
the box.
Q. How long were you in there at that time? How long did it take you to
deposit those ballots? — A. I don't think over 10 or 15 minutes.
Q, Who took your place? — A. When I quit depositing ballots, Roy Barber.
Q. How did he come there? — ^A. I don't know.
Q. Was he a member of the board? — A. No, sir; I understood he was ap-
pointed.
Q. After that, did you do anything more that day? — A. No, sir.
Q. Something was said here about you being there in the evening, when
counting the votes, and you had some conversation with one of the inspectors;
tell about that. — A. Well, they were counting the votes for circuit court com-
missioner and I thought the way they were counting tliey were counting votes
for me that I was not entitled to and I told them so.
Q. Explain what you mean? — A. For instance
Q. (Interrupting.) How many candidates were there? — A. There were two
on the Republican ticket and one on the Democratic ticket; if a Democrat
put a cross in front of my name without scratching off my name I thought
I wap not entitled to the vote.
Q. Were you consulted about that? — A. It was talked there between Mr.
Knowles, who was reading, and myself.
Q. Your opinion was asked there, was It? — ^A. No, sir.
Q. Did you at that time suggest to him or dictate how tlie vote should be
counted? — A. I didn't dictate how it should be counted; I suggested how it
should be counted.
28«— 13 — ao.
306 CABNEY VS. SMITH.
Q. With reference to your own interest, I mean did yon suggest how It
should be counted with reference to the office of circuit court commissioner,
or did you suggest how it should be counted in reference to anybody else? — ^A.
That is the only place the question arose.
Q. Did you do any electioneering around there for John M. O. Smith that
day? — ^A. No, sir.
Q. There at the polls or Inside of the railing or outside? — ^A. No, sir.
Q. Have you told all there was about the suggestion you made about count-
ing the tickets?— A. Yes, sir; I believe I have.
Q. Where were you standing at that tlme?-^A. Inside of the railing Just
In front of Mr. Knowles and Mr. Towne.
Q. Did you touch any ballots yourself? — ^A. No, sir.
Q. Or assist in the count any? — ^A. No, sir.
Q. Who was Mr. Towne? — A. He was a Democrat. I don't know whether he
acted as challenger or not ; he was there most of the time all day.
Q. Where was he at the time of this? — A. Inside, at the right of Mr. Knowles,
touching elbows with him during the coimt and handling every ballot that came
through Mr. Knowles's hands.
Q. Did he hear this conversation between you and Knowles? — ^A. Yes, sir.
Q. Did he take any part in it?— A. I think he did.
Q. Mr. Towne lives here in town? — ^A. Yes, sir.
Q. What business is he in? — A. I don't know as he has any, unless loaning
money.
Q. Have you seen him present at any of these meetings? — ^A. He was here
some of the time to-day.
Q. Now, Mr. Nichols, when the returns came in from the election around the
county, who ret'eived the envelopes? — A. They were received at the county
clerk's office by myself or the deputy.
Q. Who was the deputy? — ^A. Edna I»hr.
Q. Was Mr. Pray around there after election and acting as clerk? — A. He
was there some of the time.
Q. Who acted as county clerk when the returns were being received? — A. I
did.
Q. Something has been said by Mr. Robinson about his coming down here on
the 6th or 7th, one or both, and finding the returns being handled more or less
by different ones; what do you know about that? — ^A. After we had taken the
tabulMtion I had no objection to anybody looking at them.
Q. Do you know about their being taken out of the office at that time? — A.
No, sir.
Q. Were they taken to the Judge of probate's office by anybody that you know
of V— A. I don't know of it.
Q. Do you know anything about adding up the results on an adding ma-
chine— of their being taken to the treasurer's office? — ^A. No, sir.
Q. What do you know, if anything, about Mr. Davis and William Smith
handling those returns? — A. Well, now, I saw Mr. Davis there, and he got some
information from them, and William Smith was there. I don't know whether
he ever touched the returns or not.
Q. Did William Smith or Mr. Davis take those returns out in the corridor? —
A. Not to my knowledge.
Q. Or did you have them out in the corridor, or Mr. Pray? — ^A. I don't know:
I didn't.
Q. Did anybody else you know of from your office? — ^A. I don't know of any-
one having them outside of the office.
Q. If Mr. Robinson saw any papers in the hands of those people, what papers
were they? — A. I don't know.
Q. When you went in there to add those up, what paper did you have? —
A. I didn't go in there.
Q. Who, if anybody, went in there? — A. I don't know about that; I don't
know of anybody going across to have them added.
Q. You say you tabulated them; what paper did you have for that? — ^A. On a
blank that the secretary of state had for that work.
Q. That is what you mean by tabulation? — ^A. Yes, sir.
Q. Was that tabulation used by the county canvassers? — ^A. Yes, sir.
Q. Who was clerk of the boartl of county canvassers? — A. I was.
Q. Wore those returns that came to your office open to the examination of
the public If they desired to examine them? — ^A. Yes, sir.
Q. You might name some that examined them before the board of county
canvassers met; was Mr. Robinson there? — ^A. Yes, sir. -
CABNBY VS. SMITH. 307
Q. Did Mr. Carney examine them? — A. No, air; I would not say that He
was there the day we met; I don't know whether he was there before. Mr.
Towne saw them before, and I think Mr. McPeek and Mr. Pray.
Q. Anybody that wanted to? — A. Anybody that wanted to look at them had
the ri|?ht to.
Q. Did you see John M. C. Smith over there to see them? — A. I don't recol-
lect that he was.
Q. What do you know about the returns that went to the judge of probate's
office? Did you ever see any of them open before the board of canvassers
met? — ^A. I never saw any of those returns except as they happened to be In
the hands of the mail carrier, who delivered at the office before he goes to the
jodge of probate's office ; he had some of them there, and I remember of seeing
them there.
Q. What do you say in reference to one of them becoming open? — One of
them became open while at the desk in his hand.
Q. How did it happen? — A. He had hold of it by the comer, and In some
way it came open.
Q. Do you remember what township that was? — A. I do not.
Q. That went on into the judge of probate's office? — ^A. Yes, sir.
Q. What did he do when it opened? — A. He wrote on it and signed his name.
Q. What did he write? — A. I don't remember the words, but that It was In
bad condition.
Q. I will ask you whether the county clerk's office received those returns
from all the townships in the county? — ^A. Yes, sir.
Q. First and last? — ^A. Yes, sir.
Q. Now, about when did they come In? How rapidly did they come in after
the election? — A. Well. I think most of them were in the day following.
Q. Were there some that were not in the (\Ay following, or whether they came
in in the afternoon? — A. I think possibly Oneida Township was not there the
day following; but I think most of them came in on the morning mail, those
that came by mail, or in the afternoon, with the exception of Oneida, and I
think they came the day following.
Q. Were there any that did not come by mall? — A. Yes, sir.
Q. What townships? — A. Carmel, Chester, Eaton, and the city of Charlotte.
Q. How did they come — A. They were brought in by the clerks.
Q. Brought In by personal messenger? — ^A. Yes, sir.
Q. Who brought them in from Carmel? — A. Mr. Cole.
Q. He was the township clerk? — A. Yes, sir.
Q. W^ho brought them in from Chester? — ^A. Mr. Petteman, I think.
Q. Was he the township clerk? — A. Yes, sir.
Q. When did he bring them inV— A. On Wednesday; I couldn't tell you
what time in the day.
Q. When did Mr. Cole bring them In?— A. Wednesday.
Q. Eaton — who brought them in? — A. I couldn't tell you.
Q. Where is Eaton Townshij)?— A. The city Is In part of Eaton Township.
Q. You can't tell who brought them In? — A. I know the clerk there, but I
(*an't tell you whether he brought them in or not.
Q. The city of Charlotte— who brought them in?— A. The city clerk.
Q. He brought them all four in? — A. Yes, sir.
Q. So there were seven of those envelopes not by mall? — A. Yes, sir.
Q. Were they sealed when they were brought in? — A. I think so.
Q. The city of Charlotte — those four — were they sealed? — A. I think so.
Q. You acted as clerk of the board of county canvassers when they met? —
A. Yes, sir.
Q. Who were the board? — A. James H. Brown, of Charlotte; Mr. Hawkins,
of Charlotte ; and George Little, of Grand Ledge.
Q. Brown is a Republican? — A. Yes, sir.
Q. And Hawkins is what? — ^A. I understand he is a Democrat.
Q. And Mr. Little? — A. I understand he is a Democrat.
Q. So the board consisted of two Democrats and one Uepubllcan? — A. Yes,
sir.
Q. .^s you underKt-^nd? — A. Yes, sir.
Q. When this board of county canvassers mot, state what they did with ref-
erence to the copies that went to the judpe of in'obateV — A. They used them to
compare the tabulation made In the clerk's ottioe.
Q. Who made this tabulation? — A. Miss Tx)hr.
Q. Did you have anything to do with it?— A. I didn't do any work on It; she
did that work.
8jP& CAB^EY VS, SMIXH.
Q. Were you there?— A^ No, sir.
Q. The tabulation was actually loa^e by the d^uty clerk? — A. Yes, sir.
Q. Do you kuow whether in making that tabulation on the judge of probate's
returns, whether they compared or not, whether they agreed ?^ — X I do not
Q. You don't know about that? — ^A. No. sir.
Q. Do you know of any discrepanci^ found, in any of the ireturuB? — A. I
don't know of any.
Q. When did Mr. Carney api)ear on the scene and object to this matter? — ^A.
The day after the board had convened.
Q, The board convened the first Monday after election? — ^A. The first Tuesh
day.
Q. On the 12th day of November?— A. Tes, sir.
Q. How long were they in session? — ^A. Not more than two days.
. Q. What occurred during that session in regiird to th^ vote on Congress-
men?— A. I think that Mr. Robinson filed a protest to the counting of certain
precincts.
Q. What precincts?
Mr. Adams. I object to that as incompetent and not the best evidence.
Q. Do you know where that protest is? — A. I presume In the clerk's otBce.
Q. Who is the Mr. Robinson you s|)eak of? — A. He holds some iK)sition in the
organization of the Democratic Party; I think secretary of the county com-
mittee.
Q. Was Mr. Davis, of Battlo Creek, up here? Do you kuow him? — A. Not
at that time: 1 don't know thnt he was.
Q. You didn't see him?— A. I don't think I did.
Q. Did you see him here right after election, the 7th? — A. He was here that
week, I don't know whether the 7th or not; he was here shortly after the
election.
Q. Did he return after the board of canvassers met? — ^A. I don't know.
Q. This protest that was filcMl. do you remenil>er what townships It was
flJed against?
Mr. Adams. We ol>Ject to It ns Incompetent and not the best evidence.
Mr. Fellows. We will produce the protest.
A. From the townships of Cnrmel and Sunfleld.
Q. That petition was presented in behalf of Mr. Carney, or was it in behalf
of Mr. Carney?
Mr. Adams. He said In behalf of the county oflficers.
Witness. I didn't say that.
Mr. Adams. The record will show what he said.
Q. Who presented that petition? — A. Mr. Robinson.
Q. In whose behalf was it presented?
Mr. Adams. I object to it as incomiietent. irrelevant, and immaterial and
not the l)est evidence. The witness should tell what was said and the pro-
test itself should be produced, and it will show what it covers. It is incom-
petent to show anything by parole until there is some evidence here that the
l)rotost Itself Is lost and cannot be found.
Q. Go ahead.
(T^st question read.)
A. I don't know.
Q. What was said about it, if you remember? — ^A. My recollection is that Mr.
Robinson came In and said he had a protest he wished to file.
Q. Has Mr. Robinson been active here in this contest?
Mr. Adams. I object to that as incompetent, irrelevant, and Immaterial.
Q. In whose behalf?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. In behalf of Mr. Carney apparently.
Q. In his apiiearance before the board, if he appeared, what do you know
about whose interest he appeared In?
Mr. Adams. I object to that as incompetent and calling for the conclusion of
the witness as to his aTipearance: If he said anything, they can ask for what he
said; it Is Incompetent and hearsay and can not bind Mr. Carney, if he was
there in somebody else's behalf.
Q. In his appearance before the board, what do you know about in whofle
interest he appeared in? — ^A. I do not.
Q. Now, after the board got the returns from the judge of probate's office,
what was the canvass of that board based upon, what set of papers, the county
CAiRJTEY VS. STSOTH. &09
Clerk's returns or the Jtidge of probate's or both?— A. They used the returns
made to the Judge of probate to verity the statement made there for their use.
Q. Tou acted as clerk during the entire session of the board of county cahvas-
seps?— A. Yes, sir.
Cross-examination by Mr. Adams :
Q. Were you present all the time the board of county canvassers were in
session before the board? — A. No, sir.
Q. The board was in session about two days? — ^A. Yes, sir.
Q. Not more than two days? — ^A. I think not.
Q. Did they meet on more than two days? — ^A. That is my recollection, two
days.
Q. Came on one day and held a session that day, and the following day they
convened again and adjourned on the second day? — A. That is not my recollec-
tion of it, but I would want to look it up before I could state positively.
Q. How much of the time were they in session that you were not in with
them? — ^A. Well, not a great deal of the time; when my services were required
I stepped out in the other room.
Q. That doesn't answer the question; how much of the time? — ^A. I don't
know.
Q. You haven't heard the question yet. How much of the time that the board
of county canvassers were actually in session that you were not with the
board? — A. I couldn't answer definitely.
Q. Were you with the board of county canvassers during its sessions, would
you say, half its time? — ^A. Yes, sir.
Q. Two-thirds of the time?— A. I think so.
Q. Three-quarters of the time? — ^A. I don't know.
Q. Where did the board of county canvassers meet? — ^A. In the county clerk's
office.
Q. The county clerk's office where that board of county canvassers met had
two rooms, didn't it? — ^A. Yes, sir.
Q. In which room did the board of county canvassers meet, the front room
or the back one? — A. In the west room.
Q. Well, one of these is the front room, the public office, isn't it? — ^A. Yes, sir.
Q. The front part of the courthouse and the other back of it, back of that
room? — ^A. If that is the way you understand it.
Q. Isn't that true? — ^A. That is not the way I consider It
Q. That part of the courthouse that fronts on the street that the Phoenix
Hotel is on fronts which way? — A. That fronts east.
Q. Then the office, that part of the county clerk's offices which is on the east
side of this courthouse, should be the office that the public use? — A. Yes, sir.
Q. Immeillntely west of that is another office of the county cierk's? — A. Yes,
sir.
Q. It was one of these two rooms? — A. Yes, sir.
Q. That was the situation when the board of county canvassers met, as far
as the rooms were concerned? — A. Yes, sir.
Q. The board of county canvassers met, then, in which one, the east or west
office, to hold their sessions? — A. They held their sessions out there and worked
in the west room.
Q. You were performing the duties of county clerk at that time? — A. Yes, sir.
Q. While the board was in session I supi)ose you performeil some duties of
county clerk other than those on the board of county canvassers, didn't you? —
A. Yes, sir.
Q. In performing those duties other than those you performed in connection
with the board of county canvassers you performed thera largely in the east
office of the county clerk's offices? — A. Yes, sir.
Q. I understood you to say that apparently Mr. Robinson was before the
board of county canvassers in Mr. Carney's behalf? — ^A. I think that Is pretty
nearly true.
Q. Apparently? — A. Yes, sir.
Q. Why do you say apparently in the interest of Mr. Carney? — A. The con-
test was filed for the Democratic ticket; I supposed It was In the Interest of
Mr. Carney.
Q. It may have been in the interest of somebody else? — A. Yes, sir; the whole
Democratic ticket.
310 CARNEY VS. SMITH.
Q. There was a contest here talked of, was there not, in behalf of or as far
as the drain commissioner was concerned? — ^A. No, sir.
Q. Can you get the protest which you say Mr. Robinson filed? — ^A- I think so.-
Q. When you are excuseil to-night I want you to get that and come back here
to-morrow morning. — ^A. Yes, sir.
Q. Well, you will endeavor to do that, will you? — ^A. Yes, sir.
Q. I understood you to say — tell Mr. Frankhauser — that apparently Mr.
Robinson was there in Mr. Carney's behalf, and I understood you to say you
didn't know in whose behalf Mr. Robinson did appear. Did you so testify? —
A. I did not
Q. And yet you undertake to tell upon the record here that apparently Mr.
Robinson was there in Mr. Carney's behalf? — ^A- That is true, too.
Q. After saying you didn't know in whose behalf he was there? — A. I didn't
know ; but apparently in his behalf, because
Q. In other words, you want to have A. (Interrupting.) Because Mr.
Carney is the only fellow who has made a contest.
Q. And yet you want to have it appear upon the record there that Mr. Robin-
son appeared before that board of county can\assers in the interest of Mr.
Carney? — A. It must be, because he is the only one making a contest.
Q. That is the only reason you make that answer? — A. It is a pretty good
reason, too.
Q. If there had been anything in Mr. Robinson's mind about a contest in be-
half of anybody else, whatever he filed there would have been entirely logical
with such a thing in his mind, would it not? — A. Yes, sir.
Q. You don't know whether there were any di«'repancies between the tabula-
tion at the county clerk's office furnished to the board of county canvassers and
the returns that were filed in the probate court from the various election pre-
cincts in this county at that November 5, 1912, election? — A. I do not.
Q. Don't you know that there were one or two precincts, or at ler.st one pre-
cinct, that no returns were made from to the office of the judge of probate at
the November 5, 1912, election? — A. No, sir.
Q. You don't know tliat*^ — A. No, sir.
Q. You never found that out, did you? — ^A. No. sir.
Q. You don't know that now? — A, No, sir; and I think you never found it
out, neither.
Q. Did I ask you whether I had found it out or not? — A. No, sir; but your
question conveyed that, though.
Q. You stated that two of the board of county canvassers were Democrats? —
A. That is what I think ; yes, sir.
Q. You stated that two of the members of that board of county canvassers
were Democrats? — A. That is what I think.
Q. Were they? — A. That is the idea I had and the opinion I had.
Q. You say that they were Democrats — two of them — at the time that board
of county canvassers met. do you? — A. I do.
Q. You know that to be a positive fact, don't you, that they were Demo-
crats— two of those board of county canvassers? — ^A. That is what I think
about it.
Q. Are you making this record on what you think, or what you know? — ^A.
That is what I think about that.
Q. That is all you know about it, just what you think? — A. T'hat is the repu-
tation, anyway, they have.
Q. That is all you know alxnit whether two of the members of that board of
county canvas.sers were Democrats, is what you think? — A. And their repu-
tation.
Q. You don't know of your own knowle<lge whether they were or not? — ^A. I
never saw them mark their ballot.
Q. You don't know how they are enrolled? — A. No, sir; I never looked it up;
I can find out easily.
Q. Who was this man Davis you have been telling us about? — A. I have not
told you very much about any man Davis.
Q. Did you mention Davis's name in your testimony this afternoon? — A. I
think it was mentiimed in a question.
Q. You tostifie<i about it, didn't you?— A. Yes, sir.
Q. So you now understand who I mean by Davis? Will you tell me who
this man Davis was and what his given name was? — A. If it is the same man
Davis who has been testified about it is John C. Davis, that Mr. Frankhauser
asked about.
CAKNEY VS. SMITH. 311
Q. You understood when I asked you that question who I meant, didn't
you? — A.. Yes, sir.
Q. Now, do you understand what I am asking you about — the Davis who I
mean? — ^A. If you mean the same man I do.
Q. The same man, the same Davis, where was that Davis there; what was
his given name? — ^A. Mr. Frankhauser said John C. Davis.
Q. Did you know him before you saw him here at that time? — ^A. I am not
certain that I ever did.
Q. You never had met the man before? — A. I don't know.
Q. He is from Battle Creek?— A. Said to be.
Q. What did you see him doing? — ^A. Well, the first I saw him he came to
the clerk's office to get information relative to the election returns.
Q, W'hat did you see him do in there? — A. He was standing up in the clerk's
office.
Q. Be kind enough to tell us what things you saw him doV — A. I couldn't
tell you all.
Q. AH you can remember. — A. I think I saw him setting down some figures
on a piece of paper he had ; that is all I can tell about that.
Q. Where did he get the figures from? — A. I don't know whether he consulted
the election report or not
Q. I didn't ask you whether you know whether he did or not. Tell me
where he got the figures from? — A. I don't know.
Q. When did he first come into your office after November 5, 1912, election? —
A. I don't know.
Q. You can't recollect that? — ^A. No, sir.
Q. Is your memory pretty good? — ^A. Yes, sir.
Q. When did you first see him in your office after the November 5, 1912,
election? — A. My recollection Is along about the 8th. I don't know that is so.
Q. Who was In there at that time when Mr. Davis was there ?^A. There
was Mr. Pray, Miss Ix)hr, and several others, I can't tell you their names.
Q. You have told us all you can recollect that were In there the time he was
in there? — ^A. Yes, sir.
Q. You think that was the 8th of November, 1912?— A. That would be my
remembrance of it now.
Q. In the forenoon, afternoon, or evening? — A. It was sometime during the
day, not in the evening.
Q. Y^ou don't remember whether in the forenoon or afternoon? — A. No, sir.
Q. Did you see him In there again after that time? — A. At present I can not
recall that I saw him on more than one occasion.
Q. You had charge of that office until when, January 1? — A. Yes, sir.
Q. 1913?— A. Yes, sir.
Q. Mr. Pray had been acting as county clerk before you assumed to act as
county clerk? — A. Yes, sir.
Q. You say you got in all the returns from all the precincts in the voting
places of November 5, 1912, election not later than the 6th of November, 1912? —
A. I didn't say that.
Q. Did you?— A. I didn't say so.
Q. I ask you now whether you did? — A. Well, no.
Q. What returns did you get in your office from any of those precincts after
the 6th day of November, 1912? — ^A. Oneida came in on the 7th.
Q. Any others? — A. I can't recollect.
Q. Was Oneida the only one you remember that reached your office later
than the 6th of November, 1912?— A. Yes, sir.
Q. Did Oneida come by mail or by carrier? — A. By mall.
Q. Were all the returns that came to your office of the November 5, 1912,
election from the various voting places in the county of Eaton sealed when
they reached your office? — A. I think they were.
Q. Every one of them? — A. I think so.
Q. You are positive about that, I supi)ose? — ^A. I am not positive; I can tell
l)y seeing the envelopes.
Q. Well, you remember they were sealed when they reached your office,
don't you, that they were sealed when they came there, securely sealed? — A.
That is my memory of it ; but I don't know whether that Is true.
Q. You were there when each one got to your office, was delivered to your
office, were you? — A. No; I will not say that
Q. You don't remember now that any of these returns were not sealed when
they reached your office, do you? — ^A. No, sir.
312 CARNEY Vs. SMITH.
Q. Did you open those envelopes containing those returiis? — ^A. 1 t:fa(nik I did.
Q. What ones did you open first? — ^A. I don't know.
Q. When did you open Sunfield ? — A. I don't know.
Q. Did you open the Sunfield returns? — ^A. I co.uld tell if I saw the envelopes.
Q. How can you tell ? — ^A. By the appearance of it.
Q. What appearance of it? What is there on that envelope now that would
indicate to you whether you opened it or not? — A. The condition is was in when
it arrived at the office.
Q. Did you open the Carmel Township returas when they came to your office,
the envelope containing the election returns? — A. If It came in while I was there
1 did.
Q. Is it not a fact that you opened them all as fast as they came in when you
were there, if you were in the office when any of those election returns came in,
is it not a fact that you opened them ahout as soon as they came in ? — ^A. Soon
after they came.
Q. How soon after? — A. Within half :in hour. i)erhaps.
Q. You did that with reference to the returns that came into your office of the
November 5 election? — A. Yes, sir.
Q. As county clerk? — ^A. Yes, sir.
Q. What did you open them for? — A. To get the Information that was in
them. I had a right to.
Q. I didn't ask you whether you had a right to. — A. I am telling you I had.
Mr. Adams. I move to strike that out and take an exception to his answering
questions he is not asked.
Mr. Fellows. He said he opened them because he had a right to.
Mr. Adams. I take an exception to that remark.
(Whereupon the hearing was adjourned until 9 o'clock a. m., Saturday,
March 22, 1913.)
Saturday. March 22, 1913 — 9 a. m.
JOHN C. KICHOLS wfts recftlled and testified furtlier as follows:
Kedirect examination by Mr. Frankhauseb:
Q. Mr. Nichols, from what date did you commence to act as county clerk? — A.
The 4th of November.
Q. When tlie board of county canvassers were in session, did Mr. Carney
api)ear personally before the board? — ^A. Yes, sir.
Q. State what occurred. — ^A. Mr, Carney appear^ before the board
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, the
proceedings of the board of county canvassers are a matter of record, and there
is better evidence of what occurred.
A. He asked the board of county canvassers to summon in the township In-
spectors and have them correct their certificate to the statement of votes. He
claimed it should show on closing the polls that they immediately proceeded
with the counting of the ballots, and th:ir the count was iwiblicly amioonced.
Q. He claimed that should have been shown by the returns? — ^A. Yes, sir.
Q. Anything further? — ^A. I think that was all; he didn't make tiny claim of
any irregularities in the coimt or anything of that sort.
Q. What did the board do?
Mr. Adams. Objected to as incompetent, irrelevant, and immateriaK and that
the proceedings of the board are the best evidence.
Mr. Frankhauskb. There is no law requiring; them to keep a record. .
A. They voted on it and decided that it was cot such a matter as they were
bound to take notice of.
Q. Did they make a record of that resolution? — A. Yes, Sir.
Q. After hearing Mr. Carney's claim the board of county canvassei*8, consist-
ing of two Democrats and one Uepublican, held against him?
Mr. Adams. Objected to as incompetent. Irrelevant, andx immaterial.
A. Yes, sir.
Q. Did you look for the paper I questioned you about yesterday — that pro-
test that Mr. Robinsoti filed?— A. Yes, sir.
Q. Where did you look for it? — A. In the coimty clerk's office, in the miscel-
laneous index, which shows it was put away in box G60. I examined that box,
and it is not there or in any of the boxes around it ; it has been misplaced.
Q. Did you make a copy of that? — A. A certified copy of it.
cX'RirtY Vs. siftita. 318
Q. 'Whtft ih thftt [haiiAihg wltriese fixIriWt f«i] ^— A. ^nt is ttie protest dt
Sam Robinson relative to countfng tlie vote of Snnfield To^Tiship.
Q. The o'riglnal?— A. A certitled copy.
Mr. iFRXNKHAtTfiEK. We offer that In evidence.
Q. Is that the whole of it that Sir. Robinson filed ^
Mr. Adams. We object to the witness snying that Is .the whole of It, the cer-
tificate to Exhibit 59 shows What It Is, arid that Is conclusive. It Is iftcoini)eterit,
irrelevant, and Immaterial^ and I further object to it because there is no com-
petent evidence to show that the original, of which this purports to be a copy,
Is lost. The witness at the present time Is not the county clerk of Eaton County,
and there is no showing on the part of the county clerk or anybody who has
charge of that office that the paper, which is claimed by this witness to be a
copy, is not now In the possession of the county clerk.
Mr. Ffxlows. We don't have to prove a document in the possession of a
public officer is lost in order to use a certified copy of the docum.ent.
Mr. Adams. I object to the paper as incompetent, irrelevant, and immnterial.
I will withdraw the objection made before Mr. Fellows made his statement
there; I think he is correct about that, but I do object to the paper for the
reasons stated.
Q. Is Exhibit 59 the whole of the protest that Mr. Robinson filed?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial ; coun-
sel has now offered Exhibit 59 in evidence and it has a certificate attached to
it which is conclusive.
A. That is the wbole of it.
ftecross^xamination by Mr. Adams:
Q. You acted as clerk of the board of county ctinvnssers at their first sesfildn
held after the November 5, 1912, election? — A. Yes, sir.
Q. In other words, you were assnming at that time to act as county clerk o^
Eaton County? — A. Yes, sir.
Q. Y6u advised tbe board of county canvassers something? — A. You can use
that word. I made suggestion to them, that Is all, wliat I thought was best.
Q. You don't understand what advice means? — A. I "have a fafnt Idea what
you refer to.
Q. You are a lawyer? — A. Yes, sir.
Q. And have b^n how long ?^— A. Since 1R.S9. I think.
*Q. Von have been a lawyer during all that time In the city of Charlotte. Eaton
Oounty, Mich.? — A. Yes, sir.
Q. You have been a justice of the peace? — A. Yes, sir.
Q. When were you first a justice of the peace and Where in this county? — A. I
trould have to look that up.
Q. Yon can't remember that? — A. I can not the date I was elected.
Q. I don't care for the exact date. — A. I think in 1800.
Q. You were a justice of the peace in 1891, were you not? — A. Yes, sir.
Q. And in 1892?— A. Yes, sir.
Q. ADd 1893?— A. Yes, sir.
Q. And 1894?— A. Yes, sir.
Q. And 1895?— A. I don't know.
O. Have you been justice of the i)ence more than one terin? — A. Yes. sir.
Q. While you were justice of the peace the terms of justices of the peace as
fixed by law were four years? — A. Yes, sir.
Q. How many different terms since If^O have you been a justice of the peace
in Eaton County? — A. My recollection Is my first election was to fill a vacancy,
and afterwards I was elected for a full term. T was out eight yeirs, I think,
then T was elected twice after that for full terms.
Q. Have yon held luiy other positions than justice of the peace and county
clerk in Eaton County? — A. I have been circuit court commissioner and deputy
county clerk a great many yenrs.
Q. How long prior to November, 1912, did you fill the office of deputy county
clerk? — A. Mr. Hamilton was In when my first appointment was made, I don't
know when it was, and I was deputized by Mr. Decke, then with Mr. Warner
and M'r. Pray.
Q. Any other positions that you have held in Eaton County than those you
have already mentioned? — A. I think that Is all.
Q. Most of the time since you were admitted as a member of the bar you
have held some county office, or deputy xmder some county officer, rather than
314 OABKEY VS. SMITH.
to practice law to any gre&t extent? — ^A. Well, that would hardly be a proper
Inference to draw from that. I was not occupied more than two or three weeks
during the time I was with Mr. Hamilton, and with Mr. Decke a little more than
that One time I was engaged in a matter about a month. Just occasionally a
day when he was absent or Siimething of that sort
Q. When you were a Justice of the peace I don't suppose you were practicing
law Tery much? — A. I did what I could get to do.
Q. You acted as Justice of the peace and also practiced law when a justice of
the peace? — A. Yes, sir.
Q. I understood you to say that Mr. Carney appeared before the board of
county canvassers when that board was in session some time in November.
1912?— A. Yes, sir.
Q. You were present when Mr. Carney api>eared before that board, were you
not? — A. Yes, sir.
Q. While Mr. Carney was there you suggested to the board of county canvass-
ers something in opiK)sition to the request that Mr. Carney made to that board,
did you not? — A. Yes, sir.
Q. What did you suggest to that board in that regard at that time? — A. My
recollection is at that time Mr. Carney was raising the question In Sunfleld and
Carmel Townships, and I suggested that they keep at their work and take that
matter up afterwards.
Q. You were simply clerk of that board and were interested in not having the
board delay its work? — A. Yes, sir.
Q. You didn't intend to vote with the board, did you? — ^A. No, sir.
Q. You were simply clerk of the board? — ^A. Yes, sir.
Q. Yet you took it upon yourself to tell them not to delay their work?— A.
Yes, sir.
Q. They were the Judges under the law of the time they might take and the
manner of doing their work? — A. Yes, sir; but I didn't want to do a lot of
foolishness.
Q. You were so interested in the county of Eaton that you assumed to tell the
board of county canvassers that they had better go on with their work? — ^A. I
suggested that to them.
Q. When Mr. Carney was there before that board, what did Mr. Carney say
to the board of county canvassers when you were there? — A. Well, I didn't
make any minute of it; I don't know that I can tell what was said.
Q. You undertook to tell Mr. Frankhauser, ndw tell me again what Mr. Car-
ney said? — A. In reference to the certificate? He wanted them to have the
boards of inspectors summoned in, the various boards, to correct their returns.
Q. All the boards of Baton County? — A. Yes, sir; to add to their certificates
the fact that immediately upon closing the polls they proceeded to count the
ballots, and upon completion of the count publicly announced the result.
Q. You suggested to the board, when Mr. Carney was there, that they go on
with the count, without having the boards of Sunfleld and Carmel come in, didn't
you? — A. No, sir.
Q. You suggested to the board that they go ahead without determining, while
Mr. Carney was there whether they would have the boards of Sunfleld and
Carmel, the election boards, come In, didn't you? — ^A. No, sir.
Q. You did not?— A. Yes, sir.
Q. Mr. Carney stated to you that you didn't have anything to say about
that, and requested you to take down what he said, didn't he? — A. No, sir.
Q. Didn't he request you to take down what he said there before that board,
and did you not take it down? — ^A. No, sir.
Q. Didn't you take down something of what Mr. Onmey paid before that
bof^ni »t that time? — A. No. sir; I can explain
Q. You hold on ; I didn't ask you to make any explanation, and I object to
yon stating anything excef)t in answer to my questions. — ^A. I wish to say
that I do not wish to be put in a false light by the question. I have answered
the question, but it does not give me a chance to put in an explanation of it.
Q. Anyway what Mr. Carney said there before that board in your presence
referred to the townships of Carmel and Sunfleld? — A. Yes, sir.
Q. And he said that he wanted those two boards called in to show — he said
to the bo.'ird of county canvassers that he wanted the election boards of Sun-
field called In to make their return to show that they took an adjournment
before they completed their returns? — A. That was at another time you are
talking about.
Q. He was before the board? — A. Yes, sir.
CABNEY VS. SMITH. 315
Q. Was he before the board more than once? — ^A. On more than one occasion
on the same day.
Q. He was there and the board adjourned for dinner, and when it got in
session agaiin after dinner he was there again; is tliat correct? — A. Partially.
Q. In what respect lsn*t it correct? — A. He was there for awhile and went
out and came back.
Q. Did he go out at the time the board adjourned for the noon recess? —
A. Yes. sir.
Q. Then, he did go out when the board adjourned for recess and came back
afterwards when it was in session in the afternoon? — A. He also went out be-
fore the board adjourned.
Q. Where did he go to? — ^A. I don't know.
Q. Did he go out of the office? — A. Yes, sir ; to find some law which he didn't
find and bring back.
Q. How do you know that he didn't find it? — A. He said he couldn't find It.
Q. He told that before the board? — A. Yes, sir.
Q. He told you what law he was looking for? — A. Some Michigan case.
Q. On what? — A. On the question he submitted to the board.
Q. Did he submit it to the board?— A. No, sir.
Q. He submitted no case to the boani? — A. I don't recollect of his submitting
any.
Q. You don't recollect that he had any cases to submit to the board? — A. Yes,
sir. He may have referred to some cases — I don't know what.
Q. Yon don't remember that? — A. No, sir.
Q. You said that Robinson filed a protest, Samuel Robinson, didn't you? —
A. Yes. sir; I said Sam Robinson did.
Q. Didn't I say Sam Robinstm? — A. No, sir; you said Samuel.
Q. Was it not Samuel Robinson? — A. It Is Sam Robinson.
Q. I call your attention to Exhibit 50. Haven't you put In there in the cer-
tificate copied Samuel Robinson?— A. That is right.
Q. Does it not say Samuel Robinson right there?— A. Yes, sir.
Q. What is the use of quibbling? — A. I like to hear you.
Q. I like to hear you; it is Interesting, Indeed. That report that Samuel
Robinson presented there — or that petition, whatever you call it— of which you
say this Kxhibit 50 is a true copy, there was attached the affidavit of Rosslyn
1^ Sowers? — ^A. Yes, sir.
Q. The only thing that petition or request of Mr. Robinson's refers to was the
to^-nship of Sunfieid, was it not?— A. Thj-t Is all that one refers to.
Q. You have come here and testified thjit that is a true copy, haven't you?—
A- Yes, si r.
Q. Did he file any other petition? — A. Yes, sir.
Q. Where is that?— A. I don't know.
Q. Have you tried, to find it?— A. Yes, sir.
Q. Have you tried to find the one of which this purports to be a true copy? —
A Yes sir.
Q. Where did you look for It?— A. In the county clerk's office.
Q. Did yon find it?— A. No, sir.
Q. You are the John C. Nichols who made the certificate to this certified copy
of Exhibit 59?— A. The same fellow; yes, sir.
Q. Your name is John? — A. There Is no question about that.
Q. I didn't know but you had some other name than John?— A. No, sir.
Q. Now, when was this request or petition of Samuel Robinson or Sam
Robinson, as you put it, filed with the board of county canvassers?— A. I think
on the morning of the 13th of November.
O 1912? A. Yes sir.
Q. When was the other request of Robinson filed with the board of county
canvassers? — A. At the same time.
Q. Two of them were filed by Robinson at the same time?— A. Yes, sir.
Q. Why didn't you make a certifie<l copy of the other one?— A. Maybe I did;
I don't know.
Q. You can't remember that?— A. I don't remember that.
Q. You haven't any recollection now whether you did or not? — ^A. No, sir.
Q. Did you give a certified copy of the other request to Robinson or to any
other person?— A. I don't know; I can tell when I see the copy whether I
did or not.
Q. Did you remember before this was shown to you that you had given this
certified copy. Exhibit 59, to anybody?— A. No, sir.
'81^ VA^RKSSY rs. SMITH.
tj. Y6u have forgotten t'htit? — ^A. It had not been called to my attentl6n.
Q. You had forgotten that? — A. I wouldn't say I had.
0. tettt it had e8cai)ed your attention? — ^A. Yes. 61r.
Q. I notice you say In that certificate here, certlfirlng to this Exhibit 59, that
** The foregoing is a true copy of the protest filed in my office and the whole
thereof;" you say it is a true copy and the whole thereof? — A. Yes, air.
Q. On what date was Mr. Carney there before the board of county can-
vassers?— A. I think the 13th of November.
Q. He was only there on one day? — A. That is my recollection.
Q. What did you do with the minutes of the proceedings that you took act-
ing as clerk of the board of county canvassers? — A. They were attached to the
statement
Q. To whose statement? — A. The county canvassing board's statement.
Q. Mr. Carney asked you to sit down and take the objections that he made
and requested you to do it when he was before the board of county canvassers,
didn't he? — ^A. If you will divide that question up a little bit I will answer
it; I can't answer it altogether in the form it is In.
Q. Why can't you answer it in the form It is? — A. If I answered it part
of it would be true and part not true to the rest of it.
Q. Did Mr. Carney request you while before the board of county canvassers
to take down his objections? — A. Not in that language.
Q. Or that in substance? — A. Yes, sir.
Q. Did you sit down and write out his objections, or any jmrt of them, on two
sheets of i)aper there, write it down in ink? Why do you hesitate? — A. I am
thinking.
Q. You said a while ago you didn't do it, why do you hesitate? — A. I am not
thinking now on that proiKwitlon ; you have added a little more to It.
Q. I will give you time. — A. Of course you will, I will take it anyway. Nbw,
Mr. Carney asked to have
Q. (Interrupting.) Walt a minute
Mr. Frankhauser. We think he has a right to explain his answers.
Mr. Adams. He has no right to explain any answers to my questions; if be
can't answer my questions he can say so.
Mr. Fellows. He should answer in his own way. I don't think It is within
the province of counsel when a witness starts to answer a question to insist
that that answer is not responsive. If counsel thinks the answer Is not re-
8iK)nsive he should move to strike it out. The witness has the inherent right
to answer the question as In his judgment the facts require, then if counsel Is
not satisfied he can move to strike it out. That is my understanding of the
rights of the witness.
Q. You said a while ago you didn't do it; why do you hesitate? Answer that
yes or no, or say you can't answer it. The facts are stated in the question-
Mr. Fellows. I submit if the witness did write down the statements and it
was not on two sheets of paper, the answer might be good as to part of it and
not as to the rest. The witness has the right to state the facts as they
occurred.
Mr. Adams. If he can't answer the question because it Is complex be can
say so.
A. >Ir. Carney and I sat there and formulated what he wanted; I don't know
whether I Osed a \}en or i)encil, and It was written up on a typewriter after-
wards.
Q. Where are the minute8 you took? — A. I. presume they were destroyed; I
don't know about that : we wrote It off on the typewriter.
Q. Yon destroyed them? — A. I presume so.
Q. Why didn't you keep them? — A. I didn't deem It necessary.
Q. Didn't you, as clerk of the county of Eaton, when you were acting in any
cai)acity as clerk in keeping a record of the proceedings of any kind of a board,
keep the minutes you took of those proceedings, from which you made up your
final records? — A. I didn't always keep them; no.
Q. You did in a great many Instances, didn't you? — ^A. Sometimes.
Q. Do you know whether you destroye<l those minutes you took down that
Mr. Carney requested you to take down at that time or whether you did not?—
A. No, sir ; I do not know it positively, but I think I did. When It was copied
off on the tyi>ewriter we were through with it.
Q. Have you looked or requested the county clerk to make search for that
paper?— A. No. sir.
OAursY ys. smixh. &1/^
Q. I wiah you would before tbe next meeting of this commission. You liad
written down on this sometliing that Mr. Carney requested you to write down
there, or attempted to write down the whole or part of what he requested you to
write down, didn't you, while it was before the board? — A. We agreed what the
minutes should show.
Q. I didn't ask you that, and I move to strike it out.
Wftness. That Is my a;aswer to that question,
X4U3t q^e8tion read.
Q. Will you answer that question? — ^A. I have answered the question.
Q, You refuse to mak^ any further answer? — A. I have answered ft suf-
ficlenUy, I think.
Q. Tlmt is the only answer you will make to it? — A. That is the only one I
think is competent.
Q. All right, it may stand on the record that way. Did you enter on the
record then tbe requests that Mr. Robinson filed there did you — on the proceed-
ings of the board of county canvassers I mean? — A. Not in full.
Q. You entered on there that those protests were filed? — A. I enteretl the fact
that they were filed.
Q. You now think that the protests that Samuel Robinson, or Sam Robinson,
filed there were entered upon the records of the proceedings of the Ixmrd of
county canvassers? — A. Yes, sir.
Q. I will call your attention to it. I will ask you first If it Is not a fact
that Sam Robinson presented two r)etitlons to the board of county canvassers —
one of them in regard to the township of Sunfleld and one in regard to the
township of Carmel? — A. I have answered that. «
Q. Is that true?— A. Yes, sir.
Q. Those were the only protests that Sam Robinson filed before the board
of county canvassers? — ^A. Yes, sir.
Q. The records show that? — A. There is no question about it
Q. Then he didn't file any protests about any of the other towns in the county
of Eaton, did he?— A. I didn't say he did.
Q. He didn't, did he?— A. I didn't say he did.
Q. He didn't, did he?— A. No, sir.
Q. You stated that two of the members of the board of county onnvassers
were Democrats? — A. I said that that was their reputation; I don't know it.
Q. You don't know it?— A. No. sir.
Q. I understood you to say here In answer to my Brother Frankhauaer that
two members of that board were Democrats; you don't mean to be understood
that way now, do you? — ^A. I mean to be understood that is their reputation; I
don*t Icnow it.
Q. You don't know it? — A. No, sir.
Q. You are qualifying your former answer to that extent? — A. I never have
made any different answer than that.
Q. You don't know whether two of the members of that board of county can-
vassers were enrolled prior to November 5, 3912, eUH.»tion as Democrats, do you.
of your own knowledge? — A. No, sir.
Q. You don't know of your own knowledge whether tliey voted as Demo-
crats at the November 5, 1912, election, do you? — A. No, sir; I dn not.
Q. I suppose before you got the returns from the various eli»ctiou boards of
that election, in controversy in this case, of the November 5. 1912, election, that
you were receiving from people outside of the returns— the official reUirus— the
result of the election in the various precincts in the county of Eaton, didn't
you? — A. Who from?
Q. I don't care who from; I askeil you whether you received them? — A. I
will have to answer the question no.
Q. Did you receive any of the returns from any of the townships or wards or
any of the villages or cities in the county of Katon before you opened any of
these returns? — ^A. No, sir.
Q. Didn't you get any telephone messages on the night of the November 5,
1912, election from any of the voting precincts — election precincts— in the
connty of Eaton? — A. No, sir; I did not.
Q. You heard that, didn't you, that they were received here st)mewliere In the
city of C?harIotte? — A. I presume they were received.
Q. You hard of tliat, didn't youV — A. I heard of their being received.
Q. Didn't you make out any list of those and keep tab on them?— A. No. sir.
Q. To find out what the result of the election was?— A. No, sir.
818 CABNEY VS. SMITH.
Q. Did you have a Republican headquarters or any place in the city of
Charlotte where they were getting the election returns from the several pre-
cincts in the county of Eaton of the November 5, 1912, election after the close
of the polls? — ^A. There was such a place.
Q. Did you go there? — A. Yes, sir.
Q. You got some election returns from the several precincts in the county of
Eaton at your ofllce that day, didn't you?— A. I did not.
Q. You hadn't found out how any of the townships had gone up to the time
you retired on the night of November 5, 1912 — of the precincts, I mean — in the
county of Eaton or any of them? I don't mean official returns; I mean infor-
mation of how those precincts had gone. — A. I had some information.
Q. Some of those returns were brought into the county clerk's office, were
they not? They were carried In? — ^A. Yes. sir.
Q. You were in the office assuming to act -as county clerk at that time? — A.
On the 6th day of November?
Q. Didn't you take po8.session of the office until the 6th day of November? —
A. That just shows how you are trying to twist things.
Mr. Adams. I take an exception to that remark.
Witness. Just keep straight.
Q. I will try and keep my questions as straight as I want to put them; I will
try and put them fairly to you if you will give fair answers. — ^A. But you don't
allow me to give fair answers.
Q. You answer my question, and not something else. Didn't you take pos-
session of the office until the Gth day of November? — ^A. Yes, sir; I did; but
that twist is not fair.
Q. You first took possession of the county clerk's office on November 6,
1912?— A. No, sir.
Q. I mean now after Mr. Pray claimed to leave the office? — A. Noveml)er 5?
Q. Did you take possession as county clerk of the office, records, and flies,
and everything pertaining to the county clerk's office on November 5, 1912? — ^A.
I was In possession of them; yes, sir.
Q. Was Mr. Fray in possession of them, too? — A. I don't think he was. His
resignation took effect on the 4th.
Q. Who was in charge of the office as county clerk of Eaton County on
November 5, 1912? — A. I was.
Q. Were you in the sole possession of it? — A. Yes, sir.
Q. Was Mr. Pray In possession of it? — A. No.
Q. Was he there? — A. Yes, sir.
Q. Did he perform any of the duties of county clerk November 5, 1912?— A.
No, sir; I think not.
Q. Now, did he i)erform any of the duties of county clerk after November 5,
1912? — A. He did some work for me.
Q. What work diil he do for you? — A. He looked after some things in the
office.
Q. What time November 5, 1812, do you claim you took sole control of the
office and the paraphernalia and records and files of the county clerk's office?—
A. In the morning.
Q. What time?— A. I don't know.
Q. Was Mr. Pray there when you got there? — A. I think so, or shortly after
anyway.
Q. Did 3'ou hear Mr. Pray telephone to Hillsdale at any time on or after the
5th of November with reference to some election returns? Were you in Ihe
office when that occurred — in the county clerk's office, I mean? — A. Well, I
couldn't say he telephoned, but 8omel)ody did from the office.
Q. Didn't ho telephone or answer the telephone and hold a telephonic com-
munlcntion with sonjeunly «t Hillsdale? — A. He may have; I don't know.
Q. Don't you rcHolloct it? — A. I do not; no.
Q. Did you hear him state over the telephone that he was the county clerk? —
A. No, sir; I dirt not. and I don't think he would say so.
Q. I Jim asking y<tu whetluM- that occurred; I didn't ask you what he would
sjiy, and I move lo strike that part (if the answer out. I am asking you
wl'otluM' you heard somethinjx. You can answer that; Mr. Pray can take care
of himself. — A. I hope he can.
Q. Yon didn't hear any such conversation? — A. No, sir; I don't recall it.
Q. I show you a paper which puri)orts to have been filed in the county of
Eaton November 21. 1012, entitled on the back of it " Resij^nation of E. 0.
Pray as comity clerk." and is file marked " Filed November 4. 1912, Ernest
<j. Pray, county clerk." When did you first find out that that paper was
CABNBY VS. SMITH. 319'
filed? — ^A. Well, I knew that was filed there; I don't know when I first found
It out
Q. It was not made pnhlic, as far as you know, was it? — ^A. I don't know as
anybody came to Inquire about It
Mr. Adams. I move to strike the answer out.
Q. It was not made public, as far as you know, was it? — ^A. It was put on
file in the county clerk's office as part of the records, and the public could see
It any time they wanted to.
Q. It was not published around the city of Charlotte or elsewhere that
you know of, was it? — ^A. It was not put in any of the papers, I think; I don't
know that it was.
Q. In other words, this paper I am calling your attention to reads as fol-
lows ; " State of Michigan, county of Eaton, ss. I hereby resign the office of
county clerk and register in chancery and all the emoluments thereof. This
reflignation to take effect November 4, 1912. To the Honorable Clement Smith,
circuit judge of the fifth Judicial circuit, at Charlotte, Mich., October 30,
1912, Ernest G. Pray." That is Mr. Fray's signature?— A. Yes, sir.
Q. Now, then, you didn't hear, outside of yourself and Mr. Pray and the
depaty, possibly, in the oflBce of the county clerk — you didn't hear anybody
Kiy anything about Mr. Pray having resigned, did you, until after election
day. November 5, 1912? — ^A. Oh, yes; I heard it; I will not tell who it was;
I don't know,
Q. You heard it outside of you three people? — A. Yes, sir.
Q. And the circuit judge? — A. Yes, sir ; I think the judge of probate knew it.
Q. Are there any others? — ^A. My recollection is it was filed with the judge
of probate and the county treasurer, possibly.
Q. You and Mr. Pray Intended to keep that thing quiet, and if Mr. Pray
was not elected that thing would not be enforced? — A. No, sir; that is not true;
not a word of it.
Q. When was the order, in fact, made, if you know of your own knowledge,
appointing you as county clerk to fill a vacancy occasioned by the resignation
of B. G. Pray? — ^A. It was made either the 4th or some time prior to that; I
don't know just when .Judge Smith made It.
Q. Were you present when the order was made? — A. No, sir.
Q. When did you first read the order? — ^A. The afternoon of the 4th.
Q. W^here did you see it? — A. In the county clerk's oflBce.
Q. W^ho showed it to you? — A. I don't know.
Q. W^as Judge Smith here on the 4th of November, 1912? — A. I don't know.
Q. The circuit court of this county was not in session November 4, 1912? —
A- No, sir.
Q. I show you a book marked " Circuit Court Journal I, Eaton Coxmty," is
that a journal of the proceedings of the circuit court of Eaton County? — ^A.
Yes, sir.
Q. One of tlie records in the office of the county clerk of Baton County? — ^A.
Yes, sir.
Q. On November 6. 1912. on page 191 of this record is an entry that is
signed by John C. Nichols, cpunty clerk? — ^A. Yes, sir.
Q. Is that your signature? — ^A. Yes, sir.
Q. You made that entry? — ^A. Yes, sir.
Q. That entry is dated November 6, 1912?— A. Yes, sir.
Q. "This being the date to which the circuit court for the county of Eaton
-was adjourned and no circuit judge appearing to hold the same, Hon. Clement
Smith having given his order, thereupon the court was adjourned to Thursday
morning, November 7. 1012. John C. Nichols, county clerk." That Is the
proper entry as I read It? — ^A. Yes, sir.
Q. Now, the entry next preceding that is an entry on the record on the sixth
day of the .session, Monday, October 28, 1912, contained on that same page, 191,
isn't it?— A. Yes, sir.
Q. That shows that the circuit court was in session October 28, 1912? — A.
Y^es, sir.
Q. That record shows that court adjourned — this record shows, on page 191.
that on Monday. October 28, 1912, the circuit court of Eaton County adjourned
until Wednesday, November 6, at 9 o'clock in the morning, 1012: Clement S.
Smith, judpe. Is that correct? — A. Yes, sir.
Q. There was no court, then, between — no circuit court— between Monday.
Or-tober 28, 1912, and Thursday, November 7, 1012? — A. No court between tlios«»
dates.
S20 OASNBT ya, SOPPCH.
Q, JnAge Cleui^nt Smith during the whole ot NQveml^ec, 1912» and for 8evei:aL
years before that time resided in Hastings, Barry County, Mich., hadn't he? —
A. Yes, sir.
Q.' E. (i. Pray was a candidate on the Repufjllcan ti^i^et at the November 5,
1912, election for the office of representative, li^ the State les^lslature of Michigan
from the sixth district, in which the city of Chajlottee. is^ Ipcated, waj5 he not? —
A. Yes, sir.
Q. And you were a candidate on the Republican ticlvet in the comity 9^ C^on
for the office of circuit court commissloi^er at th(^ November Ss 1912, Section? —
A. Yes, sir.
Q. Did you sny that Congressman Smith was not In the county clerk's office
at any time between tlie morning of November 6, 1912, and the morning of
No^ ember 8, 1912, when you were there? — A. I do.
Q. You siiy he was not there? — ^A. I say he wtis not; not when I was there.
Q. You were not there, I take it. all the time covering that period of time I
inquired about in my last question, were you, when the office was open? — A- I
think I was practically all the. tima
Q. Were you there all the time? — A. I was in the office and about the build-
ing all the time during the day, both of those days.
Q. Mr. Davis, of Battle Creek, was In tlie office during that period of time J
last referred t(j — John C. Davis? — A. I don't know.
Q. You know who I mean by John C. Davis? — A. Yes, sir.
Q. Do you know Congressman Smith's sou? — A. William? Yeg, sir.
Q. .Was he in the office of the county clerk during the period of time I last
referred to while you were there — on the 0th and 7th up to the morning of the
8th?— A. I don't know.
Q. Wlieii did you fiist see Congressman Smith In the coquty clerk's office of
Eaton County after the clos«» of the polls November 5, 1912? — A. I couldn't
answer that; I don't know.
Q. You don't know?— A. No, sir.
Q. You kJiew him very well? — A. Yes. sir.
Q. You have been a Hepublican for a great many years^ have you not? — A.
Y'es, sir.
Q. Y(5u bave been very active in Republican work in tl^ls county for a great
many years?— A. 1 will leave that for others to judge; t don't know how active.
Q. I will let you put your construction upon it ; that Is wtiat I am asking for
at this time, not somebody's else. — A. Slightly interested.
Q. You were just slightly interested? — ^A. Yes, sir.
Q. No more than slightly? — A. 1 have not been as active as a great many
others. I put It upon that basis. I have been slightly interested.
Q. You consider, don't you, that you hnve been quite active? — A. No, sir.
Q. You were Interested in 1912 In the Republican contest? — ^A. I think so.
Q. You were quite interested in the result of that election, not for Mr. Smith
but for others on the Re|)ublican ticket? — A. Yes, air.
Q. And you took quite au active part in the campaign of Mr. Smith for Con-
gress during the last campaign in the result of the election on November 5,
1912?— A. No. sir.
Q. What did you do?— A. I didn't do anything. *
Q. Nothing at all?— A. No, sir.
Q. You didn't talk hi his interest In and around Charlotte, did you? — A.
No, sir.
Q. Why didn't you? — A. It was not necessary.
Q. Was thsit the only reason? — A. Yes, sir.
Q. You didn't take any Interest in the final result of the election of Mr.
Smith either, did you? — A. No, sir; I went home and went to betl at 9 o'clock.
Q. You were pretty tired- that day — on tluit November 5 — and thought if
you could get a good sleep it would quiet your nerves, etc. Did you do any-
thing yourself in the interest of Mr. Smith? — A. No, sir.
Q. You went out into Sunfleld and got some affidavits, didn't you? — A.
Yes. sir.
Q. Where are they? — A. I don't know.
Q. What did you do with them? — A. I think I gave them to Mr. Smith.
Q. You wrote the affidavits out. didn't you? — A. Yes, sir.
Q. Of whom did you get affidnvits? — A. Personally, I got affidavits from Mr.
Mai)es; I can't tell you his given name — Harry Mai)es, and I think the other
fellow's name was Hunter.
Q. Huber?— A. No. sir.
OABNEY VS. SMITH. 821
Q. Dennis A. Hager?— A. Hager — yes; that is the man.
Q. Dennis A. Hager, is that right, of Sunfield?— A. I think so.
Q. Harry H. Mapes, of Sunfleld?— A. Yes, sir.
Q- What others?— A. That is all.
Q. Did you malce two affidavits and have them signed, or one affidavit? — ^A. I
will not be sure about that.
Q. When did you give them to Congressman Smith? — ^A. Soon after getting
them.
Q. When was that signed? — ^A. It might have been the next day after that or
a day or two; I don't Icnow.
Q. It was within two or three days? — ^A. Yes, sir.
Q. When did you procure the affidavits? — ^A. I don't Icnow.
Q. How soon after the November 5, 1912, election? — ^A. Oh, I couldn't say
without looking it up.
Q. Did you get affidavits from any others in the interest of Mr. Smith? — ^A.
No, sir; I did not.
Q. Did you write up any affidavits for anybody else in the interest of Mr.
Smith?— A. I did.
Q. Where did you write them? — A. At the village of Sunfield.
Q. Who did you write up the other affidivits for at the village of Sunfleld? —
A. D. W. Knapp.
Q. Any others? — A. No. sir.
Q. You didn't find Knapp there, iwssibly, when you were there? — A. No, sir;
I did not.
Q. Did you go to see Mr. Slater? — A. No, sir.
Q. Z. D. Slater?— A. No, sir.
Q. Did you go and see J. H. Bera when you were out there? — A. I didn't go
to see him, but I did see him.
Q. Did you, when you got out there, go so far as to see Bera? You did not
go to Sunfleld to see him, but when you once got to Sunfleld, then did you go
to see Bera ? — ^A. No, sir ; but I saw him.
Q. You met him without trying to find him? — ^A. I went down to see Mr.
Mapes — I had some business there — and it was no trouble to see Mr. Bera.
Q. You Faw J. H. Bera, did you? — A. Yes, sir.
Q. He was postmaster there? — A. Yes, sir.
Q. You talked with him about these affidavits?— A. Yes, sir
Q. He advised you who to see? — A. No, sir.
Q. He advised with you about seeing them? — A. No, sir.
Q. Didn't you talk over the political situation at Sunfield with Bera?— A.
Yes, sir.
Q. Did you have any affidavit when you were there to Mr. Bera's place? —
A. I drew the affidavits while I was there in the furniture room of Mr. Bera*s.
I don't know whether Mr. Bera or Mr. Mapes runs it ; they were together.
Q. Did Mr. Bera go with you to see any of these men? — ^A. No, sir.
Q. Did you bring any of tliem into Mr. Bera's office? — A. Mr. Hager came in
while I was there.
Q, You took Mr. Hager's affidavit there?— A. Yes, sir.
Q. And had him sign and swear to it? — ^A. Yes, sir; It was signed and sworn
to there. I will not say it was signed and sworn to there ; it was in the furni-
ture store; 1 don't know whether Mr. Bera is interested in the furniture store
or not.
Q. He was there when Mr. Hager signed the affidavit?— A. He was not; no,
sir.
Q. Where was he?— A. In the post office.
Q. Where is the post office?— A. Adjoining the furniture store.
Q. It is in the furniture store?— A. I don't understand it that way.
Q. I am asking you whether it is?- A. I don't know.
Q. Is it in the same room, partitioned off?- A. Now, really, I don't know; I
think not; though my recollection is that there are two front doors— you go
in the post office in one and the furniture part in another ; whether they have
the furniture around back of the post office I don't know.
Q. You were in the furniture store? — A. Yes, sir.
Q. That is where you saw Mr. Bera?— A. No, sir.
Q. Where did you see him?— A. At the post office.
Q. In the post office?— A. Yes, sir; there is a door between them.
286—13 ^21
322 CABNSY TS. SMITH.
Q. Was Mr. Bera there when Mr. Hager was tbere wttli you; I mean was he
In the room where y«t were at the time when M^. Hager was there?— A. I don't
know; I don't recollect that now.
Q. Who had administered the oath to Mr. Hager? — ^A. I don't know.
Q. Was he sworn? Do you know whether be was or not? — A. Yes, sir.
Q. Did you administer the oath? — ^A. I think I was not a notary pubhc at
Ihat time.
Q. You were county clerk? — ^A. I didn't administer It as county clerk, I am
sure.
Q. You had a right to administer an oath as county clerk, didn't you?— A. I
might under some circumstances.
Q. Didn't you consider you had a right to do that there that day? — ^A. I did
not
Q. What do you mean ; you didn't consider you had or didn't do it? — A. Both.
Q. Was the only place you got affidavits from? — A. Yes, sir.
Q. Did you make a second trip A. (Interrupting.) Wait a minute. Those
are the only ones I got affidavits from.
Q. Did you prepare affidavits for some others? — ^A. Yes, sir.
Q. For whom?— A. For D. W. Knai)p.
Q. You stated that?— A. Yes, sir.
Q. I mean any others besides those you have mentioned? — ^A. Well, now,
whether I presented the affidavit that Mr. Hager and Mr. Mapes signed to J. H.
Palmer for his signature or a separate one I couldn't tell you.
Mr. Adams. Will you gentlemen produce those affidavits?
Mr. Frankhaxjseb. Yes. sir.
Q. Did you go out to the township of Carmel? — A. No, sir; I did not
Q. Did you go anywhere else in the interest of John M. C. Smith? — ^A. No, sir.
Q. Except Sunfleld?— A. No, sir.
Q. You were a very intimate friend of Congressman Smith? — A. I have known
him for a great many years.
Q. The question is, whether you are an intimate friend of his; you conrtder
yourself so? — A. Yes, sir.
Q. You consider him an Intimate friend of yours?— A. Yes, sir.
Q, And was prior to November 5, 1912? — A. Yes, sir,
Q. You have been rather closely assoclatetl In jwlltlcs, haven't you— In
l)olltical affairs? — A. We have both belonged to the same party for a great many
years.
Q. You have been rather closely associated In politics — in political affairs—
with Congressman Smith prior to the November 5, 1912, election, and on that
day? — A. We have been associated together In the Republican Party for a good
many years.
Q. You have worked together? — A. Yes, sir.
Q. In campaigns? — A. Yes, sir.
Q. What did you do with the Knapp affidavit— D. W. Knapp— If you made
one. did you ever see It?— A. I saw It when I prepared it; I have forgotten
whether I brought it home or whether I left it there ; I think I left !t there In
SunfieUl for him to swear to.
Mr. Frankhafser. We have never seen any D. W. Knapp affidavit
Q. You got from Dennis A. Hager and Harry H. Mapes an affidavit of what
you wanted them to sign, didn't you?— A. In the form the question Is, I will
answer no. I got from them an affidavit of what they claimed the facts were.
Q. When did you write up this affidavit?— A. The day it is dated.
Q. Where?— A. In the village of Sunfleld.
Q. Whose tyi)ewrlter did you use?— A. I don't know that, but it was a type-
writer I found in the back end of the furniture store.
Q. Did you write it out?— A. Yes, sir.
Q. Do you work a typewriter? — A. Yes, sir.
Q. Hnd you seen Mr. Mapes or Mr. Hager up to that time — either of them?—
A. I hnd seen Mr. Mapes.
Q. Prior to the time you wrote this?— A. Yes, sir; I am pretty certain I was
there and saw Mr. Hager.
Q. Where did you get the information from that you put in the affidavit?-
A. From Mr. Mapes,
Q. Hnrry Mapes, he was the township clerk of Sunfleld Township?— A. Yes,
sir.
Q. At that time?— A. Yes. sir.
CABNEY VS. SMITH. S28
.1
Q. And was on election day, November 5, 1012?— A. Yes, sir.
Q. You didn't see Mr. Knapp that day, did you? — ^A. No, sir.
Q. I suppose you prepared an affidavit just ]\ke this Exhibit 00 for D. W.
Knapp to sign, didn't you?— A. A similar one.
Q. Did you ma Ice more than one copy at the time? — A. I think I did.
Q. How many did you make at the time? How many did you make at the
time you made that one there. Exhibit 60? — ^A. Well, I think I made two copies
at that time; I think that is all I made, but I am not certain about it; I may
have made three.
Q. You made one of those you made there at that time for D. W. Knapp to
sign, didn't you? — ^A. If you have reference to the carbon copy, I couldn't say;
I don't know whether a carbon copy of this or not.
Q. Did you use that typewriter there that day at Sunfield more than one time
In making one alfldavit or copies at the same time?
Mr. Frankhauses. I object to the cross-examination as having no bearing on
the issue here.
A. I could tell if I saw the affidavit of Mr. Knapp; I couldn't tell you,
Q. Your recollection is not good? — ^A. It is not as to that ; I know I made two
copies ; whether when I could not find Mr. Knapp I went back and prepared one
separately for him, I couldn't say.
Q. As a matter of fact, did you leave any copy of that affidavit there. No. 00,
with Mr. Hager or Mr. Ma pes? — A. If the affidavit that Mr. Knapp signed is a
copy of this one, I left it with Mr. Ma pes.
Q. You were there when Mr, Hager and Mr. Mapes signed that Exhibit 60? —
A. Yes, sir.
Q. Did you give either Mr. Hager or Mr. Mapes, or both of them, a copy of the
affidavit that they signed there. Exhibit 60? — A. Do you mean for them per-
sonally?
Q. Yes, sir. — A. No, sir.
Q. Is it not a fact that the only affidavit you made there that day you made
on a typewriter and you made them all at the same time on that typewriter
that you made that Exhibit 60. this one being Exhibit (10 being the ribbon copy
and the others you made of this, you made carbon copies of this Exhibit 60? —
A. As I told yon before, I think I made this one ribbon copy and one carl)on
copy, then whether when I could not find Mr. Knapp I prepared another one,
I couldn't say, unless I saw it.
Q. I suppose they told you there before you drew that affidavit that the Sun-
field election board adjourned at noon, didn't they?— A. I don't know whether
they did or not; I don't recall whether they told me that or not; I knew of
the fact.
Q. I suppose they told you that Mr. Palmer went away and left the board
that night without the count being completed of the ballots that were cast there
in that precinct at that election? — ^A. Yes. sir.
Q. I suppose they told you that before you drew that affidavit. Exhibit 60,
that they adjourned entirely and wholly the proceedings of the election board
somewhere about 2 o'clock in the morning, or 1 o'clock in the morning rather,
of November 6, 1012?— A. Well, I didn't understand it that way.
Q. You didn't understand it that way? — A. No, sir.
Q. Did Mr. Mapes tell you that?— A. I don't think he did.
Q. Before you drew that Exhibit 60?— A. I didn't understand it that way.
Q. Did you know that from any source before you drew that Exhibit 60? —
A No, sir.
Q. Didn't you know before you left Charlotte and went out there that was
the fact about that matter? — ^A. No, sir.
Q. Hadn't you talked that over, you and Attorney McPeek? — A. No, sir.
Q. Were you not advised before you went to Sunfield to get that affidavit
from those members of the election board out there; had not Mr. McPeek ad-
vised you that the board came back there and made a count of those ballots on
the morning of Noveml>er 6, after the board had adjourned and gone to the bar-
ber shop? — A. I don't recollect any talk with McPeek about it at all.
Q. Hadn't you that information from some source before you went to Sun-
field to get that affidavit? — A. Democrats were rei>eating that around here.
Q. You had heard it? — A. Yes, sir.
Q. So when you went out to see. Mr. Maix^s and Mr. Hager you had informa-
tii.u th:'t the election board of Sunfield luul, ns a mntler of fact, or as claiuKHl
by the Democrats even, that it had adjourned about 12 or 1 o'clock on the
824 CABNEY VS. SMITH.
morning of November 6, 1912« and stopped comiting the ballots there?— A. That
is what the Democrats claimed.
Q. You knew they were claiming that when you went out to get that affidavit,
didn't you? — A. I had heard of it.
Q. I suppose you read that protest of Sam Robinson, didn*t you, which was
filed with the board of county canvassers before you went out to the township
of Sunfield to get that affidavit Exhibit 60?— A. Yes, sir.
Q. You read the affidavit of Mr. Sowers that was attached to that protest of
Sam Robinson, prior to the time you went out to Sunfield to get that affidavit,
didn't you, Exhibit 60?— A. Yes, sir.
Q. And you noticed in that affidavit. Exhibit 59, which has been offered in
evidence here by counsel on the other side, to which you certify that it is a
true copy of Mr. Sowers's affidavit before the hoard of county canvassera recit-
ing " That the inspectors of said election in said township did not immediately
proceed to and count the votes cast at said election and determine the result
thereof as required by law, but that said inspectors after commencing the count
of the ballots so cast at such election thereupon adjourned until 7 o'clock in
the forenoon of the next day, and thereafter reconvened said board of election
inspectors at 2 o'clock in the forenoon or morning, and proceeded to the count-
ing of the ballots so cast at said election, and concluded said counting at 6
o'clock in the morning, and before the time fixed for the reconvening of said
board of election inspectors as announced at the time of the adjournment so
made." You had read that before you went out to the township of Sunfield? —
A. Yes, sir.
Q. Then, in the face of all that, you drew that Exhibit 60 out there?— A. Yes,
sir.
Q. And had those men sign it, Mr. Hager and Mr. Mapes? — A. They signed it.
Q. You drew a like affidavit for D. W. Knapp to sign, didn't you, of like
tenor? — A. Yes, sir.
Q. Reciting in substance the very same facts that you recited in Ehchibit 60?—
A. Yes, sir.
Q. And no other facts than those you recited in Exhibit 60? — ^A. I don't know.
Q. Did you ever see that affidavit of Mr. Knapp's? — ^A. I drew it.
Q. Did you see it after it had been signed by him? — ^A. Yes, sir.
Q. Where did you see it? — ^A. In the city.
Q. Where in the city?— A. I think in my office.
Q. Was it delivered to you? — ^A. It was.
Q. What did you do with it?— A. Well, I suppose I took it to Mr. Smith; if I
didn't, I have got it.
Q. I wish you would look for it and see whether you have it: and, if yo
have, produce it here at the next time to which this commission adjourns tV
day?— A. All right.
Mr. ADAMS. I will read Exhibit 60 In evidence:
" State or Michigan, County of Eaton, 88:
" D. A. Ilager and Harry Mapes, being duly sworn, deposes and says that they
reside in the townahii) of Sunfield, Eaton County, and State of Michigan ; that at
the general election held in said township on the 5th day of November, A. D.
1912, J. H. Palmer. D. A. Hager, and F. H. Bacon acted as inspectors of said
election, and that Harry Mapes and D. W. Knapp acted as clerks of said elec-
tion; that imnieilintely upon the closing of the polls of aiid election said board
of election inspectors proceeded to canvass the votes cast at said election,
according to law ; that about the hour of 1 o'clock In the morning of the 6th of
November said J. H. Palmer went home and did not return to finish the canvass
until said canvass was nearly completed; that the canvassing of said ballots
was <y^e in public; that during the entire time of counting said ballots the
pub'* might have been present if they so desired, but as to whether at all
tinK,ri during said count there were others present besides said board they are
unable to state; that they deny that they had any knowledge of any report that
John M. C. Smith had lost the election to Congress by a small "majority or
otherwise; that the other members of said board were not absent from said
polling and canvassing place to exceed 30 minutes; that they had a talk about
adjourning the count because of the lateness of the hour, but that thev received
information from the prosecuting attorney of said county that they should pro-
ceed with the count until it was completed. These deponents further say that
CARNEY VS. SMITH. 326
tbe result of said canvass was read aloud that any persons who happened to be
present might know the result.
"D. A. Haoeb.
"Habby Mafeb.
" Subscribed and sworn to before me this 16th day of November, A- D. 1912.
" David G. Wmppkbt, Notary PuhUc.
"My commission expires February 3, 1916."
There is Impressed on that exhibit a seal, as follows : " David G. Weippert,
notary public, Eaton CJounty, Mich."
Q. I suppose you entered upon the minutes of the board of county canvassers
the substance at least of what occurred when Mr. Carney was there on the
occasion you mention, didn't you? — ^A. I put down what was required.
Mr. Adams. I move to strike out the answer.
Q. Will you please answer my question?— A. I can't answer your question.
Q. You made an entry, didn't you, on this Exhibit 6, a canvass of the votes
cast at the general election, which is a record from the office of the county clerk
of Eaton County, what occurred when Mr. Carney was before that board, did
you? — A. Let me see it and I will tell you.
Q. Do you remember whether you did, without looking? — A. I don't know
what you have got ; I couldn't tell you. If you will let me see what you have
got, I will tell you.
Q. Tou looked at that, didn't you, the last page of Exhibit 6; you looked at
It to-day before you went on the witness stand? — ^A. Yes, sir.
Q. That is the page I am referring to. I ask you whether you made that
record with a typewriter? — A. I don't know whether I did personally or not.
Q. If you didn't do it personally, you caused it to be done? — ^A. Yes, sir.
Q. That is right, isn't it?— A. Yes, sir.
Q. It shows in substance what occurred there when Mr. Carney was there
before that board of county canvassers, does it not, this last page of Exhibit 6? —
A. Yes, sir ; but it does not show all that occurred there.
Q. It shows the substance? — ^A. No, sir; it doesn't show the substance of what
occurred there.
Q. Well, it shows the substance, does it not, of what he wanted that board
to do at that time? — ^A. Yes, sir.
Q. Is it not a fact that Mr. Carney requested the board to summon the inspec-
tors of election of the township of 8unfleld for the punmae of correcting and
completing the returns of said township, and likewise to summon the board of
Carmel Township for the purpose of showing whether a part of the count was
mad^ before the hour of 5 o'clock, while the voting was in progress in said
township?
Mr. Frankhauseb. I will object ; Judge Adams has read from the exhibit, and
that win show for Itself what It is.
Mr. Adams. I didn't say anything about Exhibit 6; I asked him whether
that or not was correct.
Mr. Frankhauseb. The record didn't show you were reading trora Exhibit 6
until I stated it.
Q. Answer the question. — ^A. Have you finished your question?
Q. Can you answer that question? — A. Yes, sir.
Q. Answer it. — A. Yes, sir.
Q. And you, in the face of that request of Mr. Carney, advised the board of
county canvassers not to send out for those boards of Suntield and Carmel
Townships to come in In accordance with the request of Mr. Carney, didn't
you? — ^A. No, sir; I did not.
Q. You suggested that? — ^A. No, sir; that was not a suggestion.
Q. It was not? — A. No, sir.
Q. You didn't want the board of Sunfield to come in at that time before the
board of county canvassers, did you? — A. Not at that time; no.
Q. You didn't want the board of Carmel Township to come in before the
board of county canvassers at that time, did you? — A. Not at that time.
Q. Referring again to — I am not sure whether I asked you or not — I ask
you now w^hether the other i)etition of Sam Robinson filed with the board of
county canvassers, the protest of which Exhibit 59 is a certified copy, was
filed — that is, the other one — was not substalitlally the same as this certified
826 CABNEY VS. SMITH.
copy of tbe protest, except that the other one referred to the township of Gar-
mel only? What did the other one refer to, to what particular election pre-
cinct— the other one that Robinson filed? — ^A. It referred to the township of
Carmel.
Q. Did you say you had looked for that other protest of Sam Robinson's?—
A. I said I looked for the protest.
Q. Did you look for that other protest that Sam Robinson filed? — ^A. I looked
for both of them.
Q. They were both filed with you while you claimed to have been county
clerk? — ^A. Yes, sir.
Q. They both now are missing, you say — the originals? — A. I didn't say so.
Q. You can't find them?— A. I didn't find them.
Q. You have had the county clerk, Mr. Ford, make a search for you for
them? — A. No, sir; I have not.
Q. Will you have him make a search for them and endeavor to find them? —
A. You can find them; I don't care to find them particularly.
Q. Will you find them? — ^A. 1 don't know whether I will or not; I will look
for them.
Q. You didn't make a certified copy of the other one, did you? — A. I think I
did, but I don't know.
Q. Was the clerk's oflSce in the county of Eaton wholly upon a salary basis
beginning as early as November 1, 1012? — A. No. sir.
Q. Was it upon the fee system? — A. No.
Q. Partly salary and partly fees? — A. Yes, sir.
Q. During the time that you were county clerk after Mr. Pray's alleged resig-
nation, were any part of the fees of that office belonging to the county of
Eaton? — A. I think there must have been some: I don't know how uinch.
Q. Did any part of the fees for certified copies such as Exhibit 59, at the
time this Exhibit 59 was made, belong to the county of Eaton? — A. No, sir.
Q. You didn't make any minute of your items of business done of any certified
copies such as Exhibit 59 having been made by your in that oflice on the 7th
day of December. 3912, did you? — A. I don't know.
Q. Did you make any charge for this certified copy of Exhibit 59? — ^A. I
imagine it was paid for.
Q. Did you make a charge for it? — ^A. I did not on the book
Q. You made a charge for it. did you? — A. I think I have answered it.
Q. Are you sure about it or do you think so?
(No answer.)
Q. Did you make any charge for it. for making a certified copy of Exhibit 5fl,
whether you put it on the book or did not? — A. I received pay for it.
Q. At whose request did you get up this certified copy? — ^A. Mr. Smith's.
Q. Did he ask you to make him a certified copy of the other protest that
Sam Robinson filed with the board of county canvassers? — A. I think he did, but
I am not sure about that; 1 think I made a certified copy; I don't carry the
details right along every day.
Q. You say that you did not enter any fees tliat you received, if you re-
ceived any, for making this Exhibit 59 on any books or records, or any
memorandum of a fee received if you received one? — A. I didn't say so.
Q. Is your recollection you did or did not, on anything that is in the county
clerk's oflice. or that you left there or had there, at the time you made this
certlfletl copy of Exhibit 59? — A. I didn't make any charge for it m any book.
Q. Now, I understood you to say that you were a justice of the peace in 1894
and 1895; is that correct? — A. I think that is correct.
Q. You were a justice of the i)eace, during those years at least, in what local-
ity?—A. Charlotte.
Q. I<'or the city of Charlotte?— A. Yes. sir.
Q. There were other justices of the r>eace at the same time, or another one.
How many did they have at the same time — three justices of the peace in 1894
and 1895?— A. The* city was entitled to four.
Q. .Do you know whether you had four at that time or not? — A. I couldn't
recall.
Q. I suppose you presente<l your bills for services as justice of the peace that
you i)erfornic(l for the public to the board of supervisors of Eaton County,
didn't you?— A. Yes, sir.
Q. You preseute<l a bill some time In 1894 or 1S95. didn't you, for certain
fees that the board of supervisors took exception to? — A. Yes, sir.
OABNEY VS. SMITH. 827
Q. The matter was finally brought up in the board of supervisors and a reso-
lution offered in regard to it, was there not? — ^A. I am not aware of it.
Q. I show you a file package No. 302, entitled '' Clerk's office, county of Eaton,
resolutions January session, 1895." — ^A. Yes, sir.
Q. These have been produced here by Mr. Ford, the county clerk. What do
you say as to whether these are files in the office of the county clerk of Eaton
County. Mich-? — ^A. That package is.
Q. liook at the files; I call your attention to that one with a green wrapper
on it? — A. Yes, sir.
Q. Now, is not that a file from the office of the county clerk of Eaton
County? — ^A. Yes, sir.
Q. Package No. 302, clerk's office of the county of Eaton? — A. Yes, sir.
Q. Reports and resolutions, January session, 1«S05? — ^A. Yes, sir.
Q. That paper with the green back on that I am calling your attention to is
one of the files of that office? — ^A. Yes, sir.
Q. Did you ever see that particular paper before? — ^A. I don't know that I
ever did.
Q. Your claim that you filed before that board came under the class of claims
that were called first-class claims; is that true, or don't you know? — A. I don't
know^ ; I have not looked that up ; there is a difl^erent rule now than there was
tben.
Q. You filed a claim at the October, 1894, session of the board of supervisors,
didn't you, for certain services as Justice of the peace? — A. I would have to
look up the records to find out.
Q, You have forgotten about that? — A. If the record shows I did, I did.
Q. I)on'^ you recollect whether you did or not now? — A. No, sir.
Q. And that claim came up before the board of supervisors at the January
session, 1895? — ^A. You would have to let me see the record before I can answer.
Q. Just refer to this resolution here with this green back on it. — A. That is a
resolution; that isn't a claim.
Q. That doesn't refresh your recollection any, does it? — ^A. No, sir; not on
that subject.
Q. Well, I suppose there is a supervisors' record entitled ** Book C, Eaton
County." That is the record of the proceedings of the board of sui>ervisors of
Elaton County, covering certain i)eriods of time, is it not? — A. Yes. sir.
Q. Now, see whether that refreshes your recollection about this claim that
has just been referred to by referring to that book I now call your attention to. —
A. That shows I filed a claim nt that time.
Q- Does that refresh your recollection as to -whether you did? — A. I presume
that is so.
Q. You know It is so, don't you? — A. I have no reason to dispute it at all.
Q. You were making a claim to tlie board of supervisors for $104.05? — ^A.
Yes, sir.
Q. For certain fees that the board of supervisors finally acted upon at the
time of this resolution, which is marked on the book " Exhibit 25, January 2d,
1896, filed February 1st, 189', F. G. Baker, clerk," appointing commissioners on
first-class claims. Now, referring to that resolution there on page 1, is not that
the very claim referred to in this exhibit now, this green cover, filed by Mr.
Baker, the deputy clerk that is referred to on page 389 of the proceedings of the
board of supervisors, Eaton County? — A. I will read it ; then I can tell.
Q. It refers to the same subject matter on page 2?— A. Yes, sir.
Q. Does that refresh your recollection now? — A. I have no question but that
is correct.
Q. You haven't any question but what this pai>er I have shown you, file
marked '* Feb. 1st, 1805, F. G. Baker, deputy clerk," is the proceedings of a com-
mittee on first-class claims of the board of supervisors of Eaton County? — A.
No, sir.
Q, I wish you would read from this exhibit filed February 1, 1805, F. G.
Baker, deputy county clerk. For identification I have had this marked " Exhibit
61," which is the report I have been referring to as having been filed February
1. 1805, F. G. Baker, deputy county clerk, and it Is marked on the back " Ex-
hibit 61. Stockwell."— A. Yes, sir.
Q. Now, Mr. Nichols, will you please read from Exhibit 61, the last para-
graph of that exhibit? — ^A. I don't believe I can.
Mr. Fbankhauser. Any resolution passed by the board of supervisors would
have nothing to do with "this contest between Mr. Carney and Mr. Smith, and
this is not a proper way to test the credibility of the witness by showing the
board of supervisors passed a resolution.
328 CARNEY VS. BBnTH.
W1TWE88. I can't read it; part of thlB I can't read, because It Is so blurred
and worn out.
Q. Read what yon can. — ^A. It would not make very much sense. [Reading:]
" In regard to the bill of Justice of the Peace John O. Nichols . . . October . . .
referred to us again for further . . ." and the next I can read would be, " We
respectfully report that we . . . the same for consideration and have glv^
said . . . opportunity to be heard again In support of his claim ... as we re-
ported to you last October that we believe . . . collusion with the officers of
this county . . . disorderly person ... we more thoroughly believe that . . .
Q. Can't you see that?— A. No, sir. [Reading:] "We did at that time call
for sworn statements of the various officers."
Q. Can't you read that ? — ^A. No, sir; if you can see it you have got better
eyes than I have ; if you will give me a glass, I will read it all to you. [Read-
ing:! "Statement of the various officers who have been Included in the pro-
ceedings had in this case, copies of which are herewith submitted, and we
would recommend that the bill of John 0. Nichols be allowed at the same figure
we reported at that time."
Q. What is the next paragraph?— A. (Reading:) "The bill of said John C.
Nichols, filed in Jauuarj% 18J)5. amount claimed $104.05, we would recommend
that $15.70 be allowed, and that the fees amounting to 45 ... we wish to say
that these cases are trami)8 or disorderlies who have been sent to Detroit as by
the direction of this board, we have not allowed any of these bills."
Q. Now. I would like to have you read again that next to the last paragraph
on page 2 of Exhibit 61. — A. (Reading:) "We would respectfully report that
upon investigation . . . provision for all the tramp and disorderly cases
were . . . and the witnesses* certificates Issued were fraudulent, and that they
were Issued to the night watchman, who was at home and asleep while the cases
. . . complaints made in these cases after ... in some Instances were . . .
the evening following and in some cases, several days after the disposal fit the
supposed offenders . . . warrants charging were in many cases not made out
... at the disposal of the offenders and the returns thereof were signed in some
cases days after the day on which they were supposed to have been returned,
and that requisitions for costs were signed after the disposal of the offenders
. . . such time most convenient to the night watchman. Your committee would
further report that after we had nearly completed our investigation of the afore-
said claims there was a proi)ositiou made to us by two of said Justices of the
peace to make restitution to the county for the amount drawn out of the county
treasury by said fraudulent witness certificates. In consideration of w^hlch your
committee would resiiectfully recommend that no proceedings be Instituted
against said justice of the peace for malfeasance or official misconduct in accord-
ance with such a proposition, your committee decided on a day set to look over
the witnesses certificates on file in the clerk's office and ascertain the amount of
such certificates Issued by each of said justices of the peace and determine the
amount to be paid. Such canvass of such certificates to be made in the presence
of such justices of the peace, with the aid of the docket, the amounts were de-
termined as follows: John C. Nichols, $113.50; F. G. Baker, $76.80; George L.
Houser, $128.40.
Q. There is some writing under that name of CJeorge L. Houser with a pen?—
A. Yes, sir.
Q. What you read before was typewritten? — ^A. Yes, sir.
Q. Read what follows In pen.— A. (Reading:) " F. G. Baker and John C.
Nichols, having compiled with the aforesaid proposition, your committee recom-
mend that no proceedings be Instituted against them."
Q. You never complied with It, did you? — A. That report says I did.
Mr. Adams. I move to strike out the answer.
Witness. I would have to look it up; that report says I did.
Q. I didn't ask you what the report says. Show me where the re|)ort says you
(jid. — A. " F. G. Baker and John C. Nichols having complied with the aforesaid
proposition, your committee recommend that no proceedings be instituted a^inst
them."
Q. Did you ever do It — pay the money back to the county? — A. If I complied
with that proi)ositlon, I did.
Q. I didn't ask you that ; I asked you whether or not you ever compiled with
that report of the committee?— A. That report says so.
Mr. Adams. I move to strike out the answer.
Witness. I^eave it just as It ia.
OABNBT VS. SMITH. 329
Q. I put the qaestion to you whether you e^er paid that money back to the
county of Eaton? — ^A. I will answer according to that report; I will say yes.
Q. Did you do it — did you pay it baclc? — ^A. I would have to look it up; I
don't know.
Q. You know, as a matter of fact, you never did, don't you? — ^A. No, sir; I
do not.
Q. The fact Is, you never paid all that money back to the county of EJaton,
and haven't done it yet; isn't that a fact? — ^A. If I agreed to pay it back, I
paid it all back, and that report says I did.
Q. You know you didn't pay any of it back, don't you? — ^A. No, sir; I do not.
Mr. Adams. I move to strike out what the witness says the report shows, as
Incompetent and his conclusion. The report that has been read speaks for
itself, and it is not for the witness to say what the report shows.
Q. If you paid that money back, who did you pay it back to? — A. It would
be to the county treasurer.
Q. Did you get a receipt for it?— A. Yes, sir; I think I did. If I paid it back
I got a receipt for it.
Q. Have you got that receipt? — ^A. I don't know; I haven't hunted for it yet.
Q. You have no recollection that you ever got one for it from the county
treasurer or anybody in charge of that office? — ^A. I have no recollection about
the mntter at all.
Q. This transaction I have just called your attention to is not very fresh in
your mind? — A. It has been a number of years ago.
Q. It was in 1S95? — ^A. Yes, sir; nearly 20 years ago.
Q. You mean to be understood now that you don't kuow whether you ever
l«iid that money back or not, from recollection? — ^A. No, sir; I would have to
look it up.
Q- You did issue some warrants for the arrest of these tramps, didn't you,
which were the subject matter of the question before that committee of the
board of supervisors and before the board of supervisors? — A. Yes, sir.
Q. F. G. Baker and George L. Houser were both justices of the peace at the
same time you were? — ^A. Yes, sir.
Q. In 1894 and 1895?— A. Yes, sir.
Q. You did issue certificates, didn't you, to the night watchmen when they
were not at the trial of some of these tramps? — A. No, sir.
Q. That was the claim of the board of supervisors, was it not? — ^A. Yes, sir.
Q. You complied with the request of the board and agreed to the proposition
that they had made you there, didn't you? — ^A. That report says so.
Q. That is one of the things they were claiming when you appeared before
the board? — A. Yes, sir.
Q. You appeared before that committee and agreed that you would do as they
asked you to do in reference to a settlement of this matter they were making
inquiry about?— A. I think I did.
Q. And upon your agreement that you would do so, they struck out a pare
of their report, as appears here, and drew a line through it, which I am going
to read Into the record, didn't they, upon the agreement on your part that you
would comply with it? — ^A. I don't know.
Q. With that agreement on your part that you would pay back those fees,
they struck out this part of their report here in Exhibit 61, and, as a matter
of fact, you never did comply with it and haven't to this day; isn't that true? —
A. No.
Q. Have you paid that money back? — A. I think I have.
Q. You paid it back to the county treasurer? — ^A. Yes, sir.
Q. You paid back to the county treasurer that $113.50, did you? — A. Yes, sir.
Q. In one sum of money? How soon did you do it after this January, 1895,
seasion of the board of supervisors? — A. I don't know.
Q. You don't know when you did it? — A. No, sir.
Q. Who did you pay it to? — A. I don't know.
Q. What did you pay it in? — A. It was taken out of a bill.
Q. You presented later on another bill to the county? — A. Yes, sir; several
of them.
Q. The board refused to allow those bills and simply took it out of them,
did they? — ^A. I wouldn't put it that way.
Q. You didn't voluntarily come up and pay that money back to the county of
Eaton, did you, until you presented some bills, and they had to take it out of
those bills that you subsequently presented ; isn't that a fact? — ^A. No, sir.
630 CABNEY VS. SMITH.
Q. Do you know J. W. Ewing, a notary public? — A. Tea, sir.
Q. He lives in Charlotte?— A, No, sir.
Q. Where did he live?— A. At that time in Oneida; in Grand Ledge mrw..
Q. Do you knovtr Mr. BIckley? — ^A. Yes, sir.
Q. He was the night wutclunan? — A. Yes, sir.
Q. In Charlotte, was he? — ^A. He was something here.
Q. Do you know Herod 1>. Mitchell?— Yes, sir.
Q. Was he an officer in Charlotte? — ^A. Yes, sir.
Q. Do you know Mr. I^up? — A. Yes. sir.
Q. Was he an officer in Charlotte, a constable? — A. Yes, sir.
Q. Do you know Moses F. Bopwell? — ^A. Yes, sir.
Q. Was he a constable In Charlotte? — ^A. No, sir.
Q. Was he an officer?— A. Not in Charlotte.
Mr. Adams. I offer In evidence all of the affidavits that are attached to this
Exhibit 01 find the whole of Exhibit 61 in evidence.
Mr. P'bankhauseb. I will object to it, and I will further object to the cross-
examination for the last two hours as having nothing to do with this election
contest.
Mr. Adams. It bears on the credibility of the witness here.
Mr. Fbankhauseb. You are bound by his answers.
Q. You read that rei>ort over, didn't you — Exhibit 61 •
Mr. Frankhauseb. I object to it as iucomi)etent and immaterial; it doesn't
tend to discredit the witness and has nothing to do with this contest.
Q. (Continuing.) At tlie time you appeared before that committee of the board
of 8ui)ervlsor8? — A. No, sir.
Q. It was read over to you?— A. No, sir.
Q. You made that agreement without knowing what was claimed in these
affidavits? — A. I didn't know there were any affidavits.
Q. But the committee made a claim to you that j'ou had issuwl those certi-
ficates and other Instruments mentioned in this report at the time you made
that agreement with that committee? — ^A. Yes, sir.
Q. And on that claim that was made by that committee, you made tJiat agree-
ment to pay back that $113.50, didn't you? — A. Yes, sir.
Q. That you had taken out of the public funds of the county of Ejiton? —
A. I never took a cent out of it
Q. That you made a claim for? — ^A. I never made a claim for it
Q. Did you issue any certificates to any officers for witness fees growing out
of this transaction? — A. Yes, sir.
Q. And those officers got on thona certificates you issuetl their fees? — A.
Yes, sir.
Q. Monday or Tuesday, when we come in again, bring a glass with you and
see if you can't read that a little better than you have this morning. — A. All
right.
Q. Now you stated that you acted in some capacity in the second ward of the
city of Charlotte in carrying on the election proceedings on the 5th day of No-
vember, 1912?— A. When?
Q. Didn't you state that yesterday afternoon? — A. No, sir.
Q. You didn't mean to state that, did you; if you did, state it? — ^A. I don't
recollect about stating it, but there is no question about the fact.
Q. I asked you yesterday whether you had acted there in some capacity in
the second ward of the city of Charlotte in reference to handling votes? — ^A. I
acted as challenger for the Rei)ublican Party.
Q. You didn't handle any votes In that second ward? — ^A. Yes, sir.
Q. On the 5th of November, 1912?— A. Yes, sir.
Q. Did you act or assume to act on the election board in doing that? — ^A. No,
sir.
Q. You were not performing any of the duties of any of the election board? —
A. Just passing ballots.
Q. That was one of the duties of the election board? — A. Yes, sir.
Q. And not a duty of any citizen not a member of that board as you under-
stood the law? — A. Yes. sir.
Q. You understood the law In that regard that day before you began doin^
that, didn't you?— A. Yes, sir.
Q. You were a lawyer then? — A. Yes, sir.
Q. You wore a candidate for office too. were you not? — ^A. Yes, sir.
Q. You knew that as a candidate for office you didn*t have any busineas to
receive ballots, didn't you? — A. Yes, sir.
GABNEY VB. 8MITH. 881
Q. You knew that to be tke law?— A. Tea, air.
Q. Well, knowing that to be the law you went In and acted as one of the
inspectors of that election? — ^A. I did not.
Q. In place of one of the inspectors of that election, didn't you? — A. I de-
posited four or five ballots at the request of Mr. Knowles.
Q. When you were depositing those ballots you were acting as inspector? — A.
I Just did the manual work ; there is no question about that.
Q. You understood this to be the law at that time?
Mr. FRA.NKHAUSES. I obJect to your reading the law as Incompetent, irrelevant,
and immaterial, and the witness admits he knew what the law was; what is
the use of reading it into the record.
Q. I show you a book here. Revision of 1911, State of Michigan, Laws relating
to Elections, compiled under the supervision of Frederick C. Martindale, secre-
tary of state, Lansing, Mich., and call your attention to page 43 under the
heading "Manner of conducting general elections/' being act 190. P. A. 1891,
as amended. The people of the State of Michigan enact: (139) 3612. Section 1.
That at all elections at which any presidential elector, Member of Congress,
member of the legislature, state or county officer or circuit judge Is to be
elected, or any amendments to the constitution, the supervisor, two justices of
the peace not holding the office of supervisor or township clerk whose term of
office will first expire and the township clerk of each township, and the assessor
if there be one, an alderman of each ward in a city shall be the inspectors of
election: Provided, That In all voting precincts where by 8i>ecial enactment,
provisions exist for designating Insi^ectors of election said provisions* are not
to be superseded, but such officers shall be the inspectors of election under this
act. And provided further^ That no r)erson shall act as such Inspector who Is a
candidate for any office to be elected by ballot at said election." I have read
thiit correctly? — ^A. Yes, sir.
Q. You knew that to be the law when you went into that second ward at the
polls and deposited ballots In the ballot box? — ^A. Yes. sir.
Q. In the face of knowing that you deliberately did that act?— A. I did at
that time; yes, sir.
Q. You said you were a challenger in that precinct that day? — ^A. Yes, sir.
Q. For the Republican Party? — A. One of them.
Q. Was there another one there? — A. Yes, sir.
Q. While you were there? — A. Part of the time.
Mr. Frankhauser. In so far as they seek to apply that law to the city of
Charlotte, the second ward thereof, it does not apply.
Mr. Adams. The city charter we already have In; this covers every precinct
In this State.
Q. Who was the other Republican challenger there for the Republican
Party? — A. Harrj' Dyer.
Q. Did you have any written designation appointing you as challenger in
that ward on that election day? — ^A. Yes, sir.
Q. What did yon do with It?— A. I left It at the rwlls that day.
Q. Who made the appointment? — A. Mr. McPeek.
Q. When did you begin to act as challenger that day In that precinct? — A. I
think I didn't go down until 10 or half past and went away about 2 oVlock.
Q. In the afternoon? — ^A. Yes, sir.
Q. Did you go back again to act as challenger? — A. I came back at the time
of the counting of the ballots.
Q. When was It that you received the ballots there to put them In the ballot
box? — ^A. At noon, when Mr. Hamilton was taken sick.
Q. Just at noon? — A. I will not say precisely at noon.
Q. How near noon? — \. Well, within an hour of it.
Q. When did yon quit doing that? — A. Well, now, there was a voter standing
there ready to deposit his ballot, and the polls were full, I think, or about
full, and Mr. Knowles, the other alderman, had a ballot in his hand, and I
handed it to this other gentleman to go in one of the booths; that is all I did.
Q. How many booths did you have? — A. I think four or five.
Q. You claimed there were how many ballots that you deposited? — A. Not to
exceed six, anyway.
Q. Those ballots were handed to you by the voters after they came out of
the booths? — A. Yes. sir.
Q. You took them? — ^A. Yes, sir.
Q. And you put them in the ballot box that was used there for depositing
ballots for the candidates for Representative in Congress at that election? — ^A.
Yes, sir.
382 CABNBY VS. SMITH.
Q. What did you do after you quit that particular work?— -A. What do you
mean?
Q. Where did you go?— A. When I quit depositing ballots?
Q. Where did you go?— A I sat around there.
Q. Inside of the railing?— A. No, sir.
Q. Didn't you sit Inside of the railing any?— ^A. I was not inside of the
railing then.
Q. When you were receiving the ballots?— A. No, sir.
Q. Where did you stand outside? — A. Outside of the railing; there was a
rope tied up there.
Q. Did you or not go inside, where the rest of the members of the election
board were at that time carrying on that election, when you deposited those
ballots in the ballot box?— A. No.
Q. You stood outside, where the by-standers had a right to be? — A. An inch
rope between us. that Is all.
Q. Between who? — A. The ballot box and myself.
Q. Outside of the rope where the public and bystanders had a right to be,
you stood where they had a right to be. when depositing those ballots?— A.
Yes. sir; and where the inspectors stood when depositing them, too.
Q. You left there at what time after you had deposited those ballots in the
ballot box?— A. About 2 o'clock, I think.
Q. Where did you go? — A. Down to the fourth ward.
Q. Did you go back to the second ward again that afternoon before the polls
closed? — A. I think the i)olls were closed when I got back.
Q. Did you visit any of the other voting places in Charlotte that day besides
this second ward voting place? — A. I think not.
Q. Are you sure about that? — A. No, sir.
Q. Were you there about 5 o'clock that afternoon on the 5th of November
in the second ward voting place? — A. Yes, sir.
Q. When did you begin counting ballots there? — A. I presume at 5 o'clock.
Q. Were they counting when you got back?— A. I think so; I am not positive
about that.
Q. Did you stay there from the time you got there, shortly after 5 o'clock,
until the count of the ballots In that second ward was completed? — A. Yes, sir.
Q. Didn't go home to supper? — A. I had my supper before I came down.
Q. You stated yesterday that you protested against the count of a ballot or
ballots for you as circuit court commissioner? — A. Yes, sir; not only In my
favor but against me, the same principle.
Q. The principle that you were contending for was a principle that might
operate against you? — A. It did in this election both ways.
Q. You were not. when making thnt statement there to the election board,
trying to benefit your opponents on that ticket, but to benefit yourself as well?—
A. I made it for the purpose of having the count correct if it would operate
that way.
Q. You did not make that suggestion to the election board there that day for
just exactly the purrK)se you stated yesterday in your answer to Mr. Frank-
hauser's question; you remember that answer, do you? — A. What was that?
Q. Don't you remember what your answer was yesterday? — A. What did I
answer?
Q. Don't you remember? — A. I don't recollect.
Q. He didn't ask you about that at all? — A. I don't know.
Q. You don't remember that? — A. He asked me a question about counting
the ballots.
Q. You don't remember whether you told Mr. Frankhauser yesterday after-
noon what you said there about some of those ballots? — A. I don't remember
what I sjiid.
Q. What did you say yesterday afternoon In answer to that question to Mr.
Frankhauser? — A. I said where a cross was put opposite my name, where a
man voted the Democratic ticket; that Is the substance of it, and the other
name was not erased off that it should not be counted for me. If they were
counting the Republican ticket and that cross was put before my opponent's
name, it should not be counted for him.
Q. Didn't you yesterday say yon didn't want any votes counted for you that
didn't belong to you? — A. I don't know whether I said that or not but that Is
a fact.
Q. You left It in about that shape .vesterday afternoon, didn't you? — ^A. I
don't know what shape it was left in, but that is true; I didn't want a vote
counted for me that didn't belong to me.
CARNEY VS. SMITH. 388
Q. Those returns tbat came In from the various dection precincts to the
county clerk's office after November 5, 1912, election were, after you opened
them, there around the county clerks's office for the public generally to inspect,
if they wanted to? — A. After we made the tabulation; yes, sir.
Q. When did you make that tabulation? — ^A. As th9 ''etums came in.
Q. Who helped you to make it? — A Miss lx>hr.
Q. Who else was present when you made toe tabulation, when you were
making it? — ^A. I was not present when she made the figures at all; she took
the books and made the tabulation.
Q. When you opened them up as they came in, you did not make the tiibula-
tion right away? — A. It was given to her to do, and she did the work.
Q. Was there anybody in there on the 6th day o* } Tovember, in the office ol
the county clerk, at the time any of these returns ca'^ii in from the townships?—
A. I presume there was.
Q. And the books Were looked over before any tabulation was made, in many
instances, were they not? — ^A. I don't know of any.
Q. Do you say they were not? — ^A. No, sir.
Q. Is it not a fact that when soir« of these returns came in there, you opened
them right up, you, being the county clerk of Eaton County, broke those seals
on some of those envelopes and opened them up, and had the returns out before
any tabulation was maOo of pome of those returns, and the bystanders and
people who happened to be in, the county clerk's office were getting information
from what those returns showed — at least some of the particulars of what they
showed? — A. There might have been.
Q. As a matter of fact, before some of these returns were tabulated, after
you broke the seals on the envelopes and took those returns out, before you
tabulated them, some of the people who happened to be in the county clerk's
office examined them personally — some of thoFe returns? — A. They might have
looked over the returns; yes, sir.
Q. You were not selected as an Inspector in the second ward of Charlotte on
the 5th day of November. 1912, selected by the bystanders who happened to
be in there at the time you undertook to put those ballots "in the box and act
in that capacity, were you? — ^A. No, sir.
Q. There was no motion made by the bystanders there that John C Nichols,
yon, should act as inspector of the election there at that time, was there? — ^A.
No, sir.
Q. No motion w^as made by the election board that you should act in that
capacity, was there? — A. Only one of the board was there — that was Mr.
Knowles — and he told me to do it.
Q. You didn't take any oath, did you, before you proceeded to receive and
dejK>8it those ballots In the ballot box? — A. No, sir.
Q. You took no oath to act there in that capacity on that election board that
day, or in depositing those ballots in that ballot box In Charlotte, second ward,
up to the time you deposited them, did you? — A. No, sir.
D. W. KNAPP, being recalled for further cross-examination by Mr. Adams,
testified as follows:
Q. Mr. Knapp, have you made search to find the affidavit that you signed
shortly after the November 5, 1912, election relating to what occurred there
on the election board In Sunfleld? — A. Yes, sir; I made an honest and diligent
search and could not find it.
Q. You did sign such an affidavit? — A. A statement or affidavit; something
to that effect.
Q. I show you Exhibit 60, and ask you whether the affidavit that you signed
was like this, except the names were written in In Ink, whether the substance
of the affidavit itself was like that?— A. I think it was.
Redirect examination by Mr. Frankhauseb :
Q. Who swore you to that affidavit?— A. David G. Welppert.
Q. Who did you deliver it to after you swore to it?— A. I didn't deliver It to
anybody; that was a copy.
Q. You don't know anything about it, then? — ^A. No, sir.
Q. Was the copy left with you? — A. No copy was left with me.
Q. You didn't expect to find anything?— A. Yes, sir; because I made a copy
of it ; I didn*t know but I might want it ; I made a copy myself.
Q. But you couldn't find that?— A. No. sir.
384 GARKET yS. SMITH.
Recrofis-examlnation by Mr. Adams:
Q. Now, do you know when you signed it? — ^A. I don't remember.
Q. You signed it before whom? — ^A. David G. Welppert
Q. Are you sure about that? — ^A. Either him or Mr. Bera, I can't trfl yon
which.
Q. Where did you sign it? — A. There at the bank or jwst office; one place or
the other.
Q. Was it not the post office? — A. I couldn't tell you.
Q. That is your best recollection, was it not, the post office? — ^A. My best
recollection would be it was the post office.
Q. That is where Mr. Bera the postmaster of Sunfleld was? — ^A. Yes, sir.
Q. Do you know who you gave It to after you signed it? — ^A. I don't remem-
ber of giving it to anybody.
Q. You left it there where you signed It? — A. Yes, sir.
Redirect examination by Mr. Frankhaubeb:
Q. Where the post office Is there are two room; one is the post office and
another room there is a furniture room? — ^A. Yes, sir.
Q. Which room did you sign it in? — A. I think in the post office part
Q. Was there anybody there besides Sunfleld people at the time? — A. No, sir;
Mr. Bera was the only man, I think, was in there.
Q. Nobody was there from Charlotte? — ^A. No, sir.
Recross-exami nation by Mr. Adams :
Q. Where did you get the affidavit? — A. I should say it was taken off of the
one that Mr. Ma pes and Mr. Hager signed.
Q. Where did you first get it to sign — how did it come to you — who gave It
to you? — ^A. This was made out there and signed, and I had a copy of this and
signed it.
Q. The copy you took was when you got this? — ^A. Yes, sir.
Q. Some j)er8on in there wanted you to sign over there, and did you make that
copy, is that correct? — A. They presented me a copy of this.
Q. Was it tyi>ewritten? — A. Yes, sir.
Q. Who presented that typewritten one to you? — ^A. I don't know who; it
was left there in my post-office box, and when I went in there I took It out
and looked it over and Mr. Bera said he wanted me to sign it.
Q. So it came to you by mail? — A. Yes. sir; by mail because it was in my box.
Q. Was there any stamp on it? — A. No, sir.
Q. Was it in an envelop? — A. No, sir; Just stuck in my box.
Q. No postage on it at all? — ^A. No, sir; no postage on it at all.
(Whereui)on the hearing was adjourned until March 25, A. D. 1913, at
1 o'clock in the afternoon.)
Mabch 25, 1913—1 p. M.
JOHN C. NICHOLS, recalled, testified further in behalf of the contestee as
follows :
Direct examination by Mr. Frankhauseb:
Q. Since recess have you looked ovit and found the affidavit of D. W.
Knapp? — A. Yes, sir.
Q. Is that the affidavit [showing witness Exhibit 621?— A. Yes. sir.
Q. I show you Exhibit 61. Is tliat the affidavit Judge Adams asked you to
look for? — A. Yes, sir.
Q. You found it in your office? — A. Yes, sir.
Q. Is that a carbon copy of this affidavit signed by Mr. Hager and Mr.
Ma pes? — A. Yes, sir.
Mr. Fkankttat^skr. We ofl'er it in evidence.
(Affidavit reads as follows:)
** State of Michigan, County of Eaton, ms:
'' D. W. Knn])p, beln/? duly sworn, deposes and says that they reside in the
township of Suntield. Eiiton (\)nnty. State of Michigan; that at the general
election held in said township on the nth day of November. 1912, J. II. Palmer.
D. A. linger, and F. II. Racon acted as inspectors of said election, and thnt
Harry Ma|)es and I). \V. Knnpp acted as clerks of said election: that Immedi-
ately upon the closing of the polls of said election said board of election inspec-
tors proceeded to canvass the votes cast at said election, according to law;
GABKET VS. SMITH. 338
that about the hour of 1 o'clock In the morning of the 6th of November said
J. H. Palmer went home and did not return to finish the canvass until said
canvass was nearly completed; that the canvassing of said ballots was done
In public; that during the entire time of counting said ballots the public might
have been present if they so desired, but as to whether at all times during said
tount there were others present besides said board thej are unable to state;
that they deny that they had any knowledge of any report that John ^L O.
Smith had lost the election to Congress by a small majority or otherwise; that
the other members of said board were not absent from said polling and can-
vassing place to exceed 30 minutes; that they had a talk about adjourning the
count because of the lateness of the hour, but that they received information
from the prosecuting attorney of said county that they should proceed with the
count until It was completed; these deponents further say that the result of
said canvass was read aloud that any persons who happened to be present
might know the result.
"D. W. Knapp.
" Subscribed and sworn to before me this 16th day of November, A. D. 1912.
** [seal.] J. H. Beba, Notary Public.
** My commission expires February 28, 1913."
Cross-examination by Mr. Adams :
Q. The J. H. Bera whose name is attached to this Exhibit 61, Mr. Nichols,
is the J..H. Bera who is postmaster at Sunfield? — ^A. Yes» sir.
Q. Where did you find this affidavit, Exhibit 61, since the adjournment of the
hearing last Saturday? — ^A. On my table.
Q. On which table? — A. In the office.
Q. How did you get it; how did it come to you? — A. It came to me through
the mail.
Q. When? — A. Soon after, a day or two.
Q. I understood you to say the other day, did I — I understand, or did you say
the other day when on the witness stand that you had given this affidavit to
Congressman Smith? — A. I hardly think you did.
Q. You didn't say that, eh? — A. Well, I think not; I said something else in
connection with it
Q. Did you say that? — ^A. Yes, sir; but something else went with It If I
said I didn't give it to him, how did it come in my office?
Q. You had given to Congressman Smith, prior to the time you testified In
this hearing, Exhibit 60, the affidavit of Mr. Hager and Mr. Mapes, had you? —
A Yes, sir.
Q. Why didn't you give him Exhibit 61?— A. Because I didn't have It at the
time I gave him that
Q. When did you give Congressman Smith Exhibit 60?— A. I think the next
day after it was executed.
Q. You got Exhibit 61, then, a couple of days after you were to Sunfield,
didn't you? — A. A few days after.
Q. How few days? — ^A. Two or three days afterwards; I got it on the 19th.
Q. What on the 19th?— A. The D. W. Knapp affidavit
Q. On the 19th of what month? — ^A. Of November.
Q. You got Ehchibit 60 on the 16th of November [handing witness affidavit!?—
A. Yes, sir.
Q. When after the 16th of November did you first give that Exhibit 60 to
Congressman Smith? — A. The day following.
Q. On the 17th day of November, 1912?— A. Yes, sir.
Q. Have you got Exhibit 61— the D. W. Knapp affidavit- on the 19th of
November, 1912?— A. Yes, sir.
Q. You didn't give that to Mr. Smith?— A. No, sir.
Q. Why didn't you?— A. Well. I don't know why I didn't; I had it
Q. Did you tell him you had it?- A. Yes, sir.
Q. When did you tell him you had it? — A. The same day, or shortly after.
Q. You kept it in your possession, did you, from the time you received it on
the 19th of November down to when? — ^A. Until to-day.
Q. Had in your possession all the time? — A. Yes, sir.
Q. You never delivered it to Mr. Smith? — A. No, sir; not until to-day.
Q. You delivered it to him to-day? — A. Yes, sir.
Q. For the first time?— A. Yes, sir.
886 CABKEY VS. SMITH.
Q. It hadn't been out of your possession since it came into your possesHlon
until to-day? — ^A. No, sir.
Q. Did you receive It In an envelope? — A. Tes, sir.
Q. Have you the envelope? — ^A. Yes, sir.
Q. Have you it here? — ^A. Yes, sir.
Q. Please let me see it [Witness produced envelope.] What time on the
19th of November did you get this Exhibit 61, do you remember? — A. No; I
wouldn't remember exactly, but some time in the forenoon.
Q. Some time in the forenoon? — ^A. Yes, sir.
Q. Of the 19th of November, you got it?— A. Yes, sir.
Q. From the post office in Charlotte? — A. No, sir.
Q. Where did you get it? — A. At my office.
Q, You have a delivery here, do you, a city delivery? — ^A- Yes, sir.
Q. Were you at your office on the 18th of November. 1912? — ^A. I think so.
Q. Is all your busineps mail delivered at your office? — ^A. Yes, sir.
Q. Did you not get this Exhibit 61 on the 18th of November, 1912?— A. No, sir.
Q. Sure about that? — ^A. Yes, sir.
Q. What is the last delivery you have in the city, If you know, of mail In the
city of Charlotte on the 18th of November,. 191 2?— A. I don't know the exact
hour, but it is past 4 or 5; Kouiethiug like that; I don't know the hour.
Q. Did you get your mail from the post office on the evening of November 18,
1912?— A. No, sir.
Q. So this affidavit. Exhibit 61, did come into your possession on the 18th of
November, 1912? — A. I don't understand your question.
Q. Isn't that plain; don't you understand it; did this Exhibit 61 come into
your possession — actual i)ossession — on the 18th of November, 1912? — ^A. I didn't
have my hands on it.
Q. Did you see it on the 18th of November. 1912?— A. No, sir.
Q. Did you see the euveloi)e in which it came on the 18th of November, 1912?—
A. No, sir.
Q. On that day, I mean? — A. No, sir.
Q. Had you received any information prior to the time that Exhibit 61 ac-
tually came into your possession, after it was signed by D. W. Knapp, that it
had been signed by Mr. Knapp? — A. No, sir.
Q. And you kept Exhibit 61 in your possession from the time it was delivered
to you by the postal authorities until to-day, did you? — ^A. Yes, sir.
Q. You never let it go out of your possession until to-day? — A. I kept it all
the time.
Q. Did you give it to anybody? — A. No, sir.
Q. Did anybody see it in your possession that you know of, or anywhere else
after you took it out of the envelope on the 19th of November, you say, up to
the time you handed it to Congressman Smith to-day? — ^A. I think not
Q. W^here did you leave it before it was signed by Mr. Knapp when you were
at Sunfleld? — A. I couldn't answer that positively, whether Mr. Ma pes or Mr.
Bera.
Q. You left it with J. H. Bera. didn't you?— A. I told you I couldn't tell you
positively; it was one or the other.
Q. Do you say now you can't tell which one of those two men you left it with
before Mr. Knapp signed it in Sunfield? — A. I couldn't now; no, sir.
Q. Was there any reascm existing why you didn't deliver that Exhibit 61 to
Congressman Smith after you received it through the mail? — ^A. No, sir.
Q. You say that this is the same affidavit. Exhibit 61, that you received signed
by D. W. Knapp on the 19th of November, 1912, is it?— A. Yes, sir.
Q. That is the only affitlavit, Exhibit 61, that you received from D. W. Knapp
signed by him, after you were out at Sunfield to get thts affidavit, shortly after
election, is it? — A. Yes, sir.
Q. How many of the election returns received by you when you were assuming
the duties of county clerk, directed to the county clerk from the various voting
places in this county, were in an unseale<l condition, the enveloi)es containing
those returns when they came to you acting as county clerk? — ^A. If you will
let me see the envelopes, I will tell you. [Envelopes handed witness.] The
township of Hellevue, the township of Eaton Rapids, the township of Windsor,
the first ward of the city of Grand I..edge, and the second ward of the city of
Grand Ledge.
Q. All those were unsealed when they came into your possession, were they —
those that were addresseil to the county clerk? — A. Yes, sir.
CABNEY VS. SMITH. 337
Q. I notice the one from the second ward of the city of Eaton Rapids has a
notation that the poll book is missing; whose writing is that? — A. I don't know.
Q. Was the poll book of that return missing when it came into your posses-
sion?— ^A. I don't know that.
Q. Don't you know whose writing that is there in lead pencil on that en-«
velope? — ^A. No, sir; I do not.
Q. You were In charge of the office when the returns came in? — ^A. That has
been put on lately.
Mr. Abams. I move to strike out the answer.
Q. You were in charge of the office of county clerk when the returns from the
second ward of Eaton Rapids came in the office? — ^A. Yes, sir.
Q. You don't know who wrote on that envelope containing the returns from
that ward, " Poll book missing," and you don't know whether the poll book was
missing when those returns, as contained in that envelope, came into your pos-
session?— ^A. I don't recall now.
Q. I notice on the envelope containing the returns from the third ward of the
city of Eaton Rapids, addressed to the county clerk, the words, " Poll book
missing," on that envelope; do you know whether the poll book was missing
when that return came into the county clerk's office? — A. No, sir.
Q. Do you know whose handwriting that is, " Poll book missing " ? — ^A. No, sir.
Q. You didn't write it ? — A, No, sir ; nor caused it to be done.
Q. I show you an envelope addressed to the county clerk containing some
returns from the township of Benton, Eaton County, and on that envelope on
the outside I notice the words, " Tally sheet missing." Do you know who wrote
those words on that envelope? — A. No, sir.
Q. Do you know whether, when that envelope containing those returns came
into the county clerk's office, which you were then in charge of, that the tally
sheet was missing from those retiims? — A. I do not.
Q. I show you the election returns addressed to the county clerk in an en-
velope from the second ward of the city of Charlotte, and on the outside of that
envelope in lead pencil are the following words, "Statement book missing."
Can you state whether or not the statement book was missing from that
envelope when that envelope came to the office of the county clerk shortly after
the election? — ^A. Yes, sir; I can.
Q. Was it missing? — A. Yes, sir.
Q. Did you ever find it? — A. I never looked for it; I don't know.
Q. That was the voting place in the city of Charlotte where you participated
for a while in the capacity of inspector of elections? — ^A. That is where I voted.
Q. I didn't ask you whether it was where you voted, and I move that the
answer be stricken out. That was the voting place in the city of Charlotte
where you participated for a while in the capacity of inspector of election on
the 5th day of November, 1912?— -A. Yes, sir.
Q. You did that in that precinct on the 5th day of November, 1912, in the
capacity or assumed the capacity of insi)ector of election, didn't you? — ^A. I de-
posited— I didn't assume the entire duties of inspector of election at that time.
Q. You did act there and receive ballots from the voters of that very ward?-^
A. And deposited them ; yes, sir.
Q. On the 5th day of November, 1912, in the ballot box? — A. Yes, sir; at the
request of
Q. (Interrupting.) I didn't ask you about anybody's request; answer my
questions and we will get along a good deal better. That was the precinct in
which you say that the statement book was missing from the election returns
when the election returns came into the office of the county clerk ; is that true
or not? — A. That is true.
Q. The returns from the township of Carmel, Eaton County, were not sealed
when they came into possession of the county clerk — the envelope, I mean, ad-
dressed to the county clerk? — A. Yes, sir.
Q. That was not sealed when those returns came into the office of the county
clerk, was It? — ^A. It was.
Q. I show you Exhibit 63 and ask you to examine it and tell me. That is the
envelope, isn't it, which contained the election returns of that election held on
November 5, 1912, in the township of Carmel, Eaton County, Mich. ?— A. I think
it is.
Q. That is the envelope that came into your office, Isn't it?— A. I think so; I
have no reason to doubt it.
286—13 ^22
S88 CARKBY VS. SMITH.
Q. The enyelope I am hoUUng before you, marked Bzliiblt 62, was aaMmg the
envelopes here addreesed to the county clerk which yon looked over and which
have been produced here by the county clerk as being the election retnina the
envelopes containing the stamp of the various voting places in ttie ttrmnldp
elections held on Novanbor 5, 1912? — A. Yes, sir.
Q. Bzamine Exhibit 02 and tell me whether that env^ope, when it came into
the eownty clerk's oAce, was sealed. — ^A. I couldn't say, I UM you.
(^ Will you state on the record here whether there is any sealhig wax on
itV>A. I don't know.
Q, Or any mucilage appearing on it? — A. No, str.
Q. Or anything that would stick the flap of tiiat envelope down to the en-
velope?—A. No, sir.
Q. How was it sealed? — A. By a string.
Q. How was the string on it? — ^A. Tied.
Q. Describe how the string was on it. — ^A. It went twice around lengthwise
and across and turned and went across this way and tied securely.
Q. How was it sealed? — ^A. That is the way it was sealed.
Q. Was there any sealing wax on it? — ^A. No, sir.
Q. Then it was not seeled? — ^A. Yes, sir.
Q. Sealed by a string being tied around it?— A. Yea» sir.
Q. There is no sealing wax anywhere on the string? — A. No, sir.
Q. There are no indications absolutely on that Bxhibit 02 that shown tlimt any
sealing wax was ever upon it? — ^A. No, sir.
Q. Have you with you a reading glass?— A. Yes, str.
Q. You brought one with you? — A. Yes, sir; you requested me to.
Q. The county of Saton, Bfich. — ^you have lived here, you stated, a moAa of
yeaie?— ^Al I didn't say it; I wasn't asked anything about it
Q. Well, have you? — ^A. Yes, sir.
Q. How long have yon lived here in the county of Baton?— A. SVurty-seven
Q. How old are you? — ^A. I am past 47.
Q. Going into your forty-eighth year? — ^A. Yes, sir.
Q. Bom in this county? — ^A. Yes, sir.
Q. And lived here all the time?— A. Yes. sir.
Q. You never have lived out of the county?— A- No, sir.
Q. You have been identified with the Republican Party a great many years?—
A. Yes, sir.
Q. How many years? — ^A. I don't know; always, ever since I have voted.
Q. You have been connected with the Republican Party? — ^A. Yes, sir.
Q. And you have always taken a pretty prominent part in the RepubUcan
politics of the county of Baton since you have been of age, haven't you?
Mr. FaANKHAtrsEB. I object ; all that was gone over last week.
The Withess. I took some part.
Q. The county of Eaton has been a very strong Republican county, hasn't
It? — A. Sometlmea
Q. Most always, hasn't it— practically always?- A, Not always.
Q. When was It Democratic? — ^A. I don't know.
Q. As far back as you can remember? — ^A. Oh, no.
Q. When about was it?— A. Well, they elected Mr. Jones register of deeds.
Q. When?— A. I can't tell you.
Q. How many years ago? — ^A. I don't know.
Q. Haven't you any idea ?— A. I would have to look it up.
Q. Can't you tell us about how many years ago?
Mr. Fellows. What is the pertinency of this inquiry as applied te die oon-
t«»t? ,.^.
Q. Can you answer that question?— A. I think about 20 years ago or a little
KAf ^gP 20 or 24.
Q. That Is one of them; who else?— A. They had Charles EL BUs for sheriff
before that
Q. When was he elected; do you remember about when he was meted
sheriff ?-'A. It was in the eighties some time, and Mr. WUeox was deetad regfa-
tar of deeds. , ^, «
Q. About when?— A. In the nineties some time, and Mr. Anboult and Mr. Wai^
ren have been treasurers.
Q. About when last was either of these men— the last one of tb/aat — olecied
treasurer? — ^A. In 1SH96. Mr. Donovan has been sheriff.
GABNBY V8. SMITH. 389
Q. How far back ?^— A. He just went out of office.
Q. How long was he sheriff? — ^A. Two terms ; and they have had circuit-court
commissloiier aiMl drain commissioner.
Q. It has been regarded as a very strong Republican county for a number of
years? — A. They sometimes elect their candidates.
Q. It has l>een regarded as a very strong Republican county for a great many
years, hasn't it? — A. That depends
Q. Don't you so regard it? — ^A. No, sir; I do not
Q. Ton think it has not been a strong Republican county? — A. Not always.
Q. Generally speaking? — ^A. Possibly.
Q. Well, possibly, has it been? — ^A. Well, I would not say yes nor I would not
say no; either way. Some things I would have to look up; I don't recollect all
these things. I think Mr. Ferris carried this county for governor last fall.
Q. Now, have you your reading glass with you? I want to have you read a
little of this Exhibit 61. You have your reading glass here ; will you read over
some of the last paragrai^, the last paragraph of page 1 of Exhibit 61, the
report of the committee of the board al supervisors of Eaton County, to which
your attention was directed last Saturday?
Mr. Frank HAUSER. We will renew our objection to that as incompetent, irrele-
vant, and immaterial and in no way discrediting the witness, if that is the
purpose of it.
The WiTHCSB (reading) : '' Ia regard to the bill of Justice of the Peace* John
C. Nichols last October, referred again to us for further hearing, and upon con-
sideration we would respectfully report that we have given the same considera-
tion and have given the said John C. Nichols an opportunity to be heard in sup-
port of his claim. As we reported to you last October that we believed that
there was collusion with the officers In these tramp cases or disorderly persons,
we more thoroughly believe just now than we did at that time, and would re-
spectfully call your attention to the sworn statements of the various officers
who have been cognizant of the proceedings bad In those cases, copies of which
are herewith submitted, and we would recommend that said bill of John C.
Nichols be allowed at the same figure as recommended at that time. The bill of
said Justice of the Peace John C. Nichols, filed in July, 1895, making a claim of
$1<VI.05, we recommend that $58.70 be allowed and that in these tramp cases the
amount of $45.35 be not allowed. We wish to say these cases are tramps or
disorderlies that have been sent to Detroit as i)er the direction of this board.
We have allowed in all these bills."
Q. Now, if you will read the bottom of page 2. a p4iragrnph there. — A. (Read-
ing:) " We respectfully report thHt upon investigation of the proceedings had in
the tramp or disorderly cases we have a very large proportion of the
witnesses' certificates issued were fraudulent; that they were issued to the
night watchmen who were at home and asleep while the cases were disposed of.
The complaints made in these cases were signed in some instances even after —
some cases several days after — the disposal of the supposed oiteuders; that
the warrants charged for were in many cnses not made out until after the dis-
I)osal of the offenders, and the return thereof was signed in some cases days
after the day on which they were supposed to have been returned."
Q. Does that refer to your history or the history of the tramp business? —
A. That seems to be the history of the tramp business in town. [Reading:]
"And that the requisitions for costs were signed often after the disposal of the
offenders or at such times as were most convenient to the night watchmen.
Tomr committee would further report that after we had nearly completed our
investigation of the aforesaid claims there was a proposition made to us as
coining from two of the said justices of the peace to make restitution to the
county treasurer of the amounts severally caused to be drawn out of the county
treasury by said fraudulent witnesses* certificates. In consideration of which
your committee would recommend that no prosecution be instituted against the
said justices of the peace for malfeasance or official misconduct. In accord-
ance with such proposition your committee proceeded, on a day set, to look over
tie witnesses' certificates on file in the clerk's office and ascertain the amounts
of said certificates issued by each of said Justices of the pence and determine
the amount to be paid by each: Said canvass of said certificates were made in
the presence of said Justices of the peace, and with the aid of the docket the
amounts were determined as follows: John 0. Nichols. $113..50; F. G. Baker,
$T6.56; George L. Houser, $128.40. Justices F. G. Baker and John C. Nichols
having complied with the aforesaid proposition, your committee recommend that
no proceedings be instituted airainst them/'
340 CARNEY VS. SMITH.
Q. That report, then, was signed by the committee? — ^A. Yes, sir.
Q. What are the names of the committee? — ^A. Albert Rogers, Albert Shot-
well, and J. W. Ewing.
Q. There is an affidavit signed by C. S. Jackson attached to this exhibit, isn't
there, sworn to before J. W. Ewing, notary public? — ^A. No, sir; it is not
signed by Mr. Jackson.
Q. It purports to be a copy that purports to have been signed by Mr. Jackson,
all In typewriting, signature and everything? — A. Yes, sir.
Q. That is attached to that report you have been reading there? — A. Yes, sir.
Q. Read that affidavit.
Mr. Maynard. I object to that as incompetent, irrelevant, immaterial, and
hearsay, and not the best evidence.
The Witness (reading) : " Soon after I was appointed deputy sheriff It was
discovered that we were not getting our share of the work, and upon inquiry
of the night watchmen of the reason for the same we were told that we did not
put up. We asked what tiiey meant by not putting up and were told that the
other officers or constables paid the other night watchmen 50 cents for all
tramps they run into jail. In order to get any of the business we had to pay
50 cents each for all the warrants we got to serve on tramps. I do not think
the night watchman appeared and was sworn as a witness In any of the tramp
cases that I know of. I never saw any of the night watchmen sworn as a
witness in any of those cases. Some of the warrants, I understand, were
issued by John C. Nichols and some by George Ij. Houser and some by F. G.
Baker. In some Instances the warrants were made out and issued before the
trial, and In many more cases they were not made out until after the trial.
" C. S. Jackson, being first duly sworn by me this 16th day of January, 1S95.
" J. W. Ewing, Notary PtthHcr
Q. There Is an affidavit in tyi^ewrltiug, the signature and everything attached
to this Exhibit 61, purporting to be signed by Mr. Bosworth? — A. Yes, sir.
Q. Read that
Mr. Maynard. We object to that as incompetent. Irrelevant, and immaterial,
and hearsay, and not the t>est evidence.
The Witness (reading) : " Q. Now, then, who appeared as witnesses against
tramps in cises where warrants were Issued for their arrest, when a man was
sent to Detroit? — A. Marshall Weeks appeared as a witness. At the jail there
w^ere no witnesses. I don't remember of a case tried at the jail where the night
watchmen were sworn as witnesses, or a case I handled where the night watch-
man appeared as a witness. The cases I handled were before all three justices,
Nichols, Baker, and Houser, and the night watchmen w^ere not there at the
trial. Duly sworn to before me January 16, 1895."
Q. There !s a typewritten copy of an affidavit, all of which is in typewriting,
signatures an<! everything, puriwrting to have been signed by Reuben Vickery
and sworn to before J. W. Ewing, and attached to Exhibit 61? — ^A. Yes, sir.
Q. Rend that.
Mr. Maynard. The same objection.
The Witness (reading) : "A. I have been night watchman in this city since
April. 1893. Constable Loup and paid me 50 cents each for tramps that
I put in jail. Sheriff Bosworth and Deputy Sheriff Jackson also paid me
50 cents ench for the tramps that I run in there. I made complaints against
these tramps before Justices of the Peace John C. Nichols, George li. Houser,
and Frank G. Baker, and I have signed complaints against tramps mostly after
the tramps were tried. I left the names of the tramps where the other officers
could find them In the engine house. The justice gave me a witness certificate
at the time I signed the complaint. I don't know that I ever came before the
justice court as a witneas in these tramp cases. All three Justices, John C.
Nichols, George L. Houser, and Frank G. Baker, have Issued witness certifi-
cates to me In those cases. I get $40 a month salary, and am employed by the
city of Charlotte. The justices issued certificates voluntarily; I never asked
them to. It is my observation that very few are sent to Detroit.
** Reuben Vickery, being duly sworn, gives the above as evidence before the
committee on first-class claims of the board of supervisors of Eaton County.
" J. W. BwiNO, Notary Public:'
Q. You issued some of these certificates, did you? — A. I never Issued a
fraudulent certificate in the business.
Q. You issued some of those certificates to those officers, didn't you? — ^A. I
Issued certificates to officers for fees.
CABNEY VS. SMITH. 341
Q. Some of those that are mentioned in that report of the committee and
some of those affidavits that were read, didn't you ? — A. I don't know ; I never
issued any fraudulent certificates.
Q. You appeared before that committee of the board of supervisors, didn't
you? — ^A. No, sir.
Q. You didn't? — ^A. No, sir; I was refused permission to appear.
Q You agreed to the proposition that that committee of the lK)nrd made you,
didn't you? — ^A. Yes, sir.
Q. And you n greed to return to Eaton County some of those fees you had in-
cluded in the bill you presented at the January session of the board prior to
this October session of the board, and prior to this January session at which
this report was submitted to you ? — A. You will have
Q. (Int^rupting.) This bill that was in controversy here, that this com-
mittee of the board of supervisors made this report, Exhibit 61, with reference
to, was the bill or bills that you had presented at the October, 1894, session
of the board of supervisors of Eaton County ; isn't that so? — ^A. I think so.
Q. Those bills went over and were considered again in the January, 1895,
session of the board of supervisors of Eaton Coimty? — A. Yes, sir.
Q. At the January session of the board of sui^ervlsors in the year 1895, you
met the committee of the board, didn't you — the committee on first-class claims
made this report. Exhibit 61? — A. Yes, sir; they claimed that I told them to let
it go.
Q. You told them to let it go?— A. Yes, sir.
Q, Is that what you told them, to let it go? — ^A. Yes, sir.
Q. What did you mean by letting it go; that you would not make any claim
for it? — ^A. Yes, sir.
Q. That is, you agreed to pass up any claim against the county of Eaton for
tlie amount of the fees included in that bill filed in October, 1894 A. (In-
terrupting.) That was not what I meant by that at all.
Q. You liadn't heard the question yet. — A. I know pretty nearly what you
were. going to say.
Q. You kind of looked in my mind and saw that? You can see what I was
going to ask you? — A. Yes, sir.
Q. This committee of the board by this report. Exhibit 61, that the committee
of the board of supervisors made they disallowed that $113.50 of the bill you
had filed with the county for consideration by the board of supervisors at the
October, 1894, session of that board? — ^A. That is not true.
Q. Well, you had a bill in there before the October board for $113.50. You
bad a bill filed for allowance before the board of supervisors at its October,
1894. meeting amounting to $162.75, didn't you?— A. I don't know, but I don't
think so ; I would want to see the bill.
Q. Isn't that your recollection of it? — A. No, sir.
Q. Do you tell us that the statement of the comniltteo is — I guess I have
those figures wrong?— A. I think so.
Q. $149.40?— A. No, sir: that is not right. .
Q. I will let you figure it — you are pretty good at figures— and see if you can
tell me how much that bill was at that October, 1804, session that you filed. —
A. $104.06.
Q. Pass along and see If there is not $40, and something U\ addition to that,
In the tramp cases. — A. It is $104.05.
Q. Your bill was for $104.05 before that board? — A. Yes, sir; that is what the
report says.
Q. Is that your recrollection of it?— A. I couldn't say; I have no recollection
about it.
Q. The thing has gone out of your mind? — A. I have not looked it up.
Q. You have kind of forgotten about it?— A. If I saw my bill I could tell; I
don't carry those things in my mind all the time.
Q. What was it the board was claiming they wanted you to refund? — A.
For some witness certificates that I had drawn for witnesses that api)ear(Hl in
tlie cases.
Q. Who got the money? — A. The witnesses did.
Q. How much did that amount to?— A. They say here $113.50.
Q. Now you appeared before the committ(»e of the board an<l agreed to pay
that $113.50 back, didn't you?— A. Yes, sir.
Q. And the board agreed if you would pay it back they would not prosecute
you for malfeasance? — A. Yes. sir.
Q. Did you pay it back?— A. I did.
842 CARNBT VS. SMITH.
Q. Wben?
Hr. FluiTKHAUSEB. Tliis was all gone over last week.
The Witness. Sliortly after this ; t couldn't tell ; within the next year, say.
Q. It is all paid back, is it?--A. Yes, sir.
Q. Within the next year or so? — ^A. Yes, sir.
Q. You paid it back to the county treasurer? — ^A. Yes, sir; through a bill
presented to the board of supervisors.
Q. In consideration of that the board struck out a part of that report there,
didn't they?— A. I don't know.
Q. A line Is crossed through it now. — ^A. I never saw this report until 8at-
orday or Friday last.
Q. Read there on the last page, over the signatures of Mr. Rogers, Mr. Stiot-
well, and Mr. E2wing, that part that has a line drawn through It
Mr. Frahkuauseb. Counsel is asking the witness to read into the record
what the witness says is stricken out.
Mr. Adams. I am going to show it was done by agreemoit
Mr. Frank HAUSEB. If this business keops up— this continuous prolix cross-
examination on matters that have no relation to the case — ^we want the record
to show that we protest against it, as it is going to crowd us for time.
Mr. Fvxows. I do not want to be regarded as criticising counsel on the other
side on the record, but I think we are takhig up a great deal of time with
matters that, when we come to settle the case, will be sifted out, and if not
sifted out they will not be considered by the committee in Congress. I feel
that possibly a good deal of this cross-examination is to make a record so that
the committee in Congress will not read the testimony, and would base their
determlmilion solely upon partisan grounds, and I have sometimes wondered
if that was not the purpose of the contestant in making the record in this way.
Mr. Adams. For your elucidation I will say that we are hoping very earnestly
to get a reasonable record.
The Witness (reading) : " Inasmuch as the other two Justices of the peace,
John C. Nichols and F. G. Baker, have not complied with the aforesaid propo-
sition , therefore your committee would reconunend that the prosecuting
attorney be Instructed to prepare a complaint addressed to the governor against
Justices F. G. Baker and John C. Nichols, and to prosecute the said proceedings
accordingly for the recovery of the amounts fraudulently drawn out of the
treasury by the said witnesses' certificates."
Q. Whnt yon have Just read has a line drawn through it? — ^A. Yes. sir.
Q. Yon read a part before that a while ago. also last Saturday, that you said
was in there written with a pen, didn't yon? — ^A. Yes, sir.
Q. That lb. " Justifies of the Peace F. G. Baker and John C. Nichols having
complied with the aforesaid proposition, your committee recommend that no
proceedings be instituted against them." Those words are written In with a
pen? — ^A. Yes, sir.
Q. And the report is typewritten? — ^A. Yes, sir.
Q. So that you agreed with that committee that you would comply with the
request of the committee, didn't you, about. paying back these moneys; then
that part that has a line drawn through of that report was creased out aftw
you made that agreement of your own knowledge? — A. No, sir; I didn't know
anything about it.
Q. That is, you didn't know whether that is the reason this line was drawn
through there? — A. That is what I mean.
Q. This is the first time you ever saw Exhibit 61?— A. Yes, sir.
Redirect examination by Mr. Fbankhauseb:
Q. Mr. Nichols. I want to examine you briefly now^ in regard to theee Sao-
field affidavits of Mr. Knapp, Mr. Hager, and Mr. Mapes. In what caiNicity
did you act? — ^A. As attorney for John M. C. Smith.
Q. He paid you for your work? — A. Yes, sir.
Q. Have yon been acting as his attorney in other matters? — ^A. Yes. sir.
Q. Have you any matters for him now?
Mr. Adamh. I object to that as Incompetent, irrelevant, and immaterial.
The Witness. Yes, sir.
Q. Did you go to Simfield or do any work In connection with these three
affidavits because of a dcHire to render him assistance as a partisan or as an
attorney?
Mr. Adams. Objected to as leading.
The Witness. As an attorney.
Q. Did Congressman Smith appoint Mr. Bera postmaster? — A. No. sir.
OASSXY VS. SMITH. 348
Q. How long luM Jotaa M. O. Smitti been in Oongre»?--A. Two ynr&
Q. How long has Mr. Ben be«i postmaster?— A. I think he has been postr
12 or IB yeua
Q. Did Jolm M. C. Smltii ever raeownend htal^A. No, sir.
Q. What daaa of oOee to tJ^t as you nnderstand lt?~-A. I don't know; I
think fenrth daa^— third or fourth class.
Q. Is it your imderstandlng that fourth-class postmasters are not subject to
appointment by Congressmen?
Mr. Abakb. Objected to as incompet^it, irreleyant, and immaterial.
The Winrsss. I don't know anytMng about it
Q. If an article appeared in the Kalamaxoo papers during this contest that
Oongreflsman Smith appointed Mr. Bera, of course that would be a mistake,
would it not?
Mr. Adams. Objected to as Incompetent, irrelevant, and immaterial.
rnie Wmnss. Yes, sir.
Q. Was titere anything about the Knapp aiBdaylt that you cared to conceal,
or wiAed to conceal, in any way, shape, or form? — A. No, sir.
Q. Was there any reason on earth that you did not deliver It to John M. C.
Smith or did not adiow it to anybody else? — ^A. No, sir; I had it in my office.
Q. When you testified here last week, did you have any motive or object in
concealing the whereabouts of that affidavit? — ^A. I don't think I did; I said
either he had it or I did.
Q. Did you remember that affidavit was the same as you drew for Mr. Hager
and Mr. Mapes? — ^A. Tes, sir.
Q. I call your attention to Exhibit 59; was that a certified copy of the protest
that Mr. Robinson filed with the board in behalf of the Democratic ticket or a
part of it?— A. Yes, sir; that is one of the protests he filed.
Q. What township does that refer to?— A. Sunfield.
Q. Was there another in relation to Carmel? — ^A. Yea, sir.
Mr. FkaHKHABsoL I will read Bxhibit 50. [Reading:]
" Statk or MiCHioAW,
** County of Eaton:
**.To the Board of County Canvassers of the County of Eaton and Staite ef
Michigan:
"Now comes Samuel Robinson, of the city of Charlotte, in the county of
Baton and State of Michigan, an elector in said county, and hereby protests to
your honorable body against the including of the votes of the township of
Sunfield, in said county of Baton and State of Michigan, in determining the
result of the vote cast at the general election held on the 5th day of November,
A D. 1912, for the reason that the election inspectors of said town^ip of Sun-
field aforesaid did not proceed immediately to and count said votes so cast at
said general election as provided by law, and did not publicly count said ballots
so cast at such election rs provided by law.
"This protest is based on the affidavit hereto attached and made a part of
this protest.
" Sam Robinson.
" Dated November 12, 1912.'
Q. Tliat day, did you know Sam Robinson? — A. Yes, sir.
Q. Isn't that the way he always signs his name? — ^A. I don't know.
Q. Anyway, Sam or Samuel was the man? — ^A. Yes, sir.
Mr. Fbankhauseb (reading) :
" Statb op Michioan,
" County of Eaton, ss:
** Rossyln L. Sowers, being duly sworn, says that he is a resident of the city
of Charlotte, in the county of Eaton and State of Michigan, and that he has been
a resident of said county for more than 20 years previous to the date hereof.
"Deponent further says that, at the general election held in the township
of Sunfield. in said county of Eaton aforesaid, on the 5th day of November
A D. 1912, that the inspectors of said election in said township did not im-
mediately proceed to and count the votes cast at said election and determine the
result thereof as required by law, but that said inspectors after commencing
the count of the ballots so cast at such election, thereupon adjourned until 7
o'clock in the forenoon of the next day, and thereafter reconvened said board
of election inspectors at 2 o'clock in the forenoon, or morning, and proceeded to
the counting of the ballots so cast at said election and concluded said counting
at 6 o'clock in the morning and before the time fixed for the reconvening of
344 CABNEY VS. SMITH.
said board of election Inspectorfl as announced at the time of the adjournment
so made.
" I)ei)onent further says that the information u|)on the foregoing affidavit is
made was furnished to deponent by John H. Palmer, one of the inspectors of
election In said township of Sunfield on the 5th day of November, 1912.
" RossLYN Tj. Sowers.
** Subscribed and sworn to before me this 12th day of November, 1912.
** Fred Milbourn,
*• Notary Public, Eaton County, Mich.
** My commission expires February 28. 1914.'
»»
" State of Michigan,
•* County of Eaton, 8»:
" I, John C. Nichols, clerk of the county of Eaton and of the circuit court
thereof, the same being a court of record having a seal, do hereby certify that
the foregoing is a true copy of a protest tiled in my office by the above-named
party and of the whole thereof.
" In testimony whereof I have hereunto set my hand and the seal of the said
circuit court this 7th day of December, A. D. 1912.
"[seal.] "John C. Nichols, Clerk.''
Q. That Is the seal of the circuit court? — A. Yes, sir.
Q. I will ask you now from your recollection as to the other proceedings that
were filed relating to Cnrmel.
Mr. Adams. I will object to that; there Is no showing but what there is better
evidence.
Q. Were you not asked the other day whether you could find that? — ^A. Yes,
sir.
Q. Didn't you say you could not find it? — A. No, sir.
Q. Do you know whether Mr. Ford, the county clerk, has looked for it?
Mr. Adams. I object to that as hearsay and as incompetent until It is shown
that the original was lost.
The Witness. We looked for it together.
Q. Did you find it?— A. No, sir.
Q. Now. I will ask you, so far as you can remember, as to what the contents
of that other one were?
Mr. Adams. I object to that as incompetent; there is no showing that the
paper is not In existence by anybody who has charge of the files or the regular
custodian of them.
The Witness. The first part of it, I think. Is practically the same excei)t this
word ** Carmel " In place of ** Sunfield," and the affiadvit is made by N. W.
Spencer in place of Rosslyn I-i. Sowers. I don't know who swore him to it
Q. Was that what Mr. Carney based his protest uiion in regard to those two
townships?
Mr. Adams. Objected to as calling for the conclusion of the witness and in-
competent, Irrelevant, and Immaterial.
The Witness. lie said so in his motion.
Mr. Adams. I objwt to what he said In lils motion : there is better evidence.
Q. Was there any other proof or alleged proof before the board regarding
these two townshii>s at that time? — ^A. No, sir.
Q. Was that motion oral? — ^A. Yes, sir.
Q. I show you Exhibit 0 and call your attenticm to the last page, and
will ask you what that is? — A. That Is the record of the filing of the protest
of Sam Robinson relating to Carmel and Sunfield Townships, a protest to
Dwlght Backus counting or issuing a certificate of election to E. G. Praym.
protest of Claude S. Carney. Representative in Congress.
Q. Referring si)ecially to the protest of Mr. Carney, explain briefly how that
was gotten ui) — who wonied it and how it was gotten up. — ^A. Mr. Carney dic-
tated it to me at the time he was before the board and afterwards I wrote it up.
Q. Was that th(» only record that was made of anything that Mr. Carney
did?— A. Yes, sir.
Q. Before the board? — A. Yes, sir.
Q. Was he present and saw that before it was put in typewriting?
Mr. Adams. 1 object to the cpiestion uiwni the ground tliat it is leading, and
take an exception to the mode of examining the witness. He seems to be
GABNEY VS. SMITH. 345
nbuQdantiy able to take care of himself and tell what occurred without counsel
telling him what occurred and then asking him to say yes or no.
The Witness. He was present and dictated it to me, as I say.
Mr. Frankhauseb (reading). "November 12. Protest of Mr. Robinson filed
relative to Carmel Township.
"November 12. Protest of Mr. Robinson filed in reference to Sunfield Town-
ship."
Was that the same protest that I called your attention to here in your evi-
deuce. Exhibit 59?
The Witness. That is relative to Sunfield Township ; yes, sir.
Mr. Frank HAU8ER (reading) : ** November 12. Protest of Dwight Backus rela-
tive to issuing a certificate of election to E. G. Pray. Filed. November 13, Claude S.
Carney, Democratic candidate for Congress from the third congressional dis-
trict, personally appeared before the board and requested the board to summon
the inspectors of election of the township of Sunfield for the purpose of correct-
ing and completing their returns for said township, basing his motion upon the
affidavit of Rosslyn L. Sowers, attached to the protest of Sam Robinson, claiming
that said returns should be corrected to read * November 6th ' Instead of * No-
vember 5th,' and claiming that said returns should show an adjournment was
made, if such was a fact; and a like motion with reference to summon the
board from Carmel for tlie purpose of showing whether a part of the count was
made before the hour of 5 o'clock and while the voting was in progress in such
towDship. This last motion is based on the affidavit of N. W. Spencer, which is
attached to the protest of Mr. Robinson In relation to counting the votes of
said township. This board, by unanimous vote, decided that the technicalities
pointed out are not sufficient to warrant this board in summoning the board
of election inspectors from the various townships to appear before this board."
Q. I don't know but the record shows what Exhibit 6 is, but state what it
is?— A. "Canvass of the votes cast at the general election held Tuesday, the
5th day of November, 1912."
Q. What I read was a part of the proceedings of the board of county can-
vassers?-—A. Yes, sir.
Q. You acted as deputy county clerk how long? — ^A. I couldn't tell you; I
was first appointed under Mr. Hamilton.
Q. You acted how long as county clerk? — A. From November 4.
Q. You are an attorney at law? — ^A. Yes, sir.
Q. I ask you whether the protest of Mr. Robinson, Exhibit 59, with its com-
panion, the township of Carmel, were such papers as were required to be filed
in the office of the county clerk? — A. I don't know whether they were required
to be filed or not ; they were filed there and they were put in a Jacket.
Q. You can remember that they were both filed? — ^A. Yes, sir.
Q. Something has been naid about your career as a justice of the peace here;
what they have been questioning you about happened 17 or 18 years ago? —
A. Yes, sir.
Q. Since that time has the city of Charlotte elected you justice of the peace? —
A. Yes, sir.
Q. How many times? — A. Twice.
Q. How many times have yon been elected circuit court commissioner of
this county? — ^A. Four or five times.
Q. Can you explain briefiy what your trouble was before the board of super-
visors, which resulted in the resolution produced here? — ^A. The question here
involved in this report is to show that certificates of witnesses who appeared
before the court ; they claimed that the justice of the peace had no right to issue
certificates to the complaining witnesses in the case.
Q. Was it true that you issued certificates that were illegal? — ^A. I think I
ne\'er issued any illegal certificates.
Q. Did you ever issue a certificate for men who were In no wise present as
witnesses and who were not subpoenaed? — A. I issued them to men not sub-
poenaed where they appeared and were sworn.
Q. In relation to holding court at the jail ; what was there about that? — A.
Sometimes for the convenience of the officers the justice of the peace went to
^^ the jail and arraignments were made Instead of having the person brought
before them.
Q. Was there any trouble about those fees in relation to allowing you fees
when you sent a man to Detroit and you got them allowed when you sent them
to jail? — A. The same class of cases exactly; where they were sent to Detroit
they allowed the fees, but not when sent to the jail.
846 OABITBY VS. SMITH.
Q. Was diat tbiB (Aly traoble?— A. Yes. wtt.
Q. When they disallowed that bOl Oie first tfane did yon pot it in tlie second
time?— A. Tes, sir.
Q. Yon were not trying to get away from it?— A. No, sir.
Mr. Adams. I object to that as leadLog; the qnestion soggeots the rery answer
be wants erery time and all the witness has to do is to say yes or no ; it is not
fair the way they are conducting the examination.
Q. How did you come to issue witnesses c»-tifloates wlio were not sworn? —
A. If they were in attendance at conrt I issued a certificate.
Q. If a man pleaded guilty he would not be sworn? — ^A. Sonetiiiies tbej
wooid not be tried and sometimes they would be used, eren wbere they did
I^ead guilty, but they were required to be in attoidanoe.
Q. The circuit judge of this circuit. Clement Smith, wliere does he n^e?—
A. At Hastings.
Q. You liave laown him how long? — ^A. Twoity-five or thirty yearsL
Q. After this dtlBculty with the board of saperyisors, did you act «s defk of
the board of supervisors? — ^A. Yes, sir.
Q. In what capacity — what office were you holding then? — A. I was deputy
county clerk.
Q. I show you Exhibit 64; what is that?— A. That is a letter from Judge
Smith.
Q. Circuit judge?— A. Yes. sir.
Q. Is he judge of the circuit court of Eaton County? — A. Yes, sir.
Q. And has l)een for how long? — ^A. Twenty years anjrway, and maybe longer.
Q. You have known him and have practised law before him all tifeat time?—
A. Yes, sir.
Q. How long have you practised law ; tiiat is. how nwny years luiTe you been
admitted to the bar?— A. I think I was admitted in 1889, in July.
Mr. Feamkhauseb. We offer Exhibit 64 in evidence.
Mr. Adams. I object to it as incompet^it irrelevant, and immaterial and
hearsay; it Is self-serving.
Q. Do you know Judge Smith's writing? — ^A. Yes, sir.
Q. Is that his handwriting?— A. Yes, sir.
Mr. FsANKHAusEH (reading) :
** Battle Ckeek Sanatorium,
" Battle Creek, Mich,, November «, 1912,
" John C. Nichols, Charlotte.
"My Dsab Sib: I have received and accepted the resignation of Bmest 6.
Pray as county clerk and register in chancery for Eaton County, to take effect
the 4th instant. If you will aoc^t the appointment for tlie vacancy I desire to
appoint you. If you do, please prepare and send me a typewritten form for
that purpose. It is not convoiient for me to look up the statute and I leave it
for you to do so. I will be here until next Tuesday morning, returning home by
way of Charlotte.
** Yours, truly, " Clembnt Smith.**
Q. I show you Etxhibit 64A — ^is that the envelope this letter came in that I
have just read on the record? — ^A. Yes, sir.
Mr. Matnabd. Can I ask a question or two of the witness?
Mr. Adams. All right.
Q. I show you Exhibit 25— what is that?— A. The tally sheet of the general
election held Tuesday, the 5th day of November, 1912, in the second ward, city
of Charlotte, county of Eaton, State of Michigan.
Q. Witness, have you had experience in these election polling precincts and
counting up and tallying up of the votes received at the different elections?—
A. Yes, sir.
Q. Do you know anything about how that is arrived at there under the bead-
ing of *' Representative in Congress''? I will say that the contestant, by his
attorney, introduced this book in evidence and read in front of the name of
John M. C. Smith, straight votes, 65: total split votes, 50; total votes received,
161 ; without any explanation as to how those figures were arrived at, without
mentioning the tallies, explain it fully.
Mr. Adams. I object to counsel stating upon the record anything that counsel
said ; the record will show what he said, if anything.
Q. Now. I want you to take that and show the manner in which those tallies—
how it is done.
CABWBY 76. 8KXTH. S47
Mr. Abamb, I object to tlie witn«s8 eKpMmiiig anfthlng «Kocpt to Ml what the
T»e»Pd diowd; the reeord Aows for itself and It is a eoiieli]alo&, apecnlatlTe and
incompeteot, IrreleTant, and immaterial* for the wltnem to offer to state any-
thing that the reeord does not show.
Tbe WrriTESS. The sywtBm used In tallying the TOtes in tihe second ward Is
n^at is called the pins and minus system. T%ciy first spread the baSots cast into
groups ; if it is a strai^t Bepulriiean ticket a rote for all the ofBeers on the
Bepoblican ticfcet, strafi^ TOtos, tliose were taken for all of them that were
marked at the head of tlie tidbet ; then what is called split rotes ; and that is
true of each of tlie other parties.
Q. When separated that way, taking the Republican straight vote in one heap
and the Republican tickets ttiat are not strai^^t in another heap, then set down
tor J<rfm If. C. Smith so many total strai^t Totes?
Mr. Adams. J object to that as incompetent, irrelevant, immaterial, and calling
tor the conclnsi<m of the witness. He was not a naember of the board or a clerk
of tte board at that NoTemt>er 5, 1912, election, and has nothing to do with this
electlcm.
Hie WiTifMS. That is the way it was done. The total noniher of straight
▼otes were set down.
Q. How many were there fbr John M. O. Smith?— A. Sizty-fiTe.
Q. How many split Republican votes for John M. O. Smith? — ^A. Fifty-nine;
those two numbers added together would be the entire number of Republican
tickets voted.
Q. Just add them together and see how many there are? — ^A. One hundred and
twoity-four.
Q. And every time he was voted against on the Republican ticket there would
be one less?— A. Tes, sir; there would be one less.
Q. That was called what?— A. Minus.
Q. Were th^ set down? — ^A. Yes, sir; they were set down here.
Mr. Adams. I object to bis saying they were set down there; there is noth-
ing of the kind appearing on this record.
The Witness. The number of votes less in the Republican ticket were 8.
Q. That would leave him how many? — ^A. 116.
Q. Now, when they were reading the other tickets for John M. 0. Smith, who
rec^ved a vote on another ticket for that ofllcet how would that be called — ^what
would it be called?
Mr. Adams. I object to that as incompetent, irrelevant, immaterial, and
calling for the conclusion of the witness; he was not a member of the board
and has no right to testify what occurred there.
The WiTNKss. It would be called i^us.
Q. How Biany of those plus votes, as shown on the record? — ^A. Forty-five.
Q. Now, that added to the amount we started in, that would make how
many? — ^A. It would leave 161.
Q. One hundred and sixty-one? — ^A. Yes, sir.
Q. The total vote?— A. Yes, sir; the total vote he received.
Q. That was finally set down in the last column In that way? — ^A. Yes, sir.
Q. Do those tallies show opposite his name? Do you know in that way ex-
actly how the right-hand figure 161 as the total vote was tallied and calculated?
Mr. Adams. I object to it as incompetent, irrelevant, and Immaterial, and
calling for the conclusion of the witness; the record must speak for Itself; this
witness was not a member of the board or a clerk, and don*t know how it was
counted.
The WiTVESS. That is what it shows.
Q. Take the next name; what name is that under John M. C. Smith's? — ^A.
Claude S. Carney.
Q. Give what that record shows about that. — A. He had 48 straight votes
and 64 splits ; he received plus 15 and a minus of 20.
Q. He was struck off 20 Democratic tickets? — ^A. Yes, sir; and he received
15 from other sources which made him a vote of 107.
Q. He was given that, was he? — A. Yes, sir.
Q. I wish you Would glance through that book and see the number of
Democratic votes for each ofllce, the number of ballots cast for each one. —
A. That is the way they were counted.
Q. How many were given each Republican? — A. Sixty-five straights and 59
splits; Democratic. 48 straights and 64 splits.
Q. According to that system they were given all the same credit? — ^A. Yes, sir.
\
848 CARNEY VS. SMITH.
Mr. Adams. I object to that as incompeteat, irrelevant, and immaterial, and
calHnj? for the couclusiou of the witness; that Is not what the record shows
at all.
Q. Now, Witness, what result did that have in the time it takes to count the
ballots? — ^A. It shortens the time; for instance, at this election, in the second
ward we were through counting and had the votes canvassed at 15 minutes to 9
o'clock, and the statements were made up and ready.
Q. Why was that? — ^A. Because of the shortening of the count
Q. That is, you have to read the names actually marked? — ^A. Yea, sir.
Q. By the other system you have to read every name? — ^A. Yes, sir.
Q. If it has one mark on it? — ^A. Yes, sir.
Q. When you are reading the plus and minus system you mentioned, when
you looked up the page, if there is but ono name, that is all that is men-
tioned?— ^A. Yes, sir.
Q. If you took your Republican ticket and saw John M. C. Smith marked off
and saw a Carney vote on that Republican ticket, and no other name altered
on it, what would you have to say? — A. I would have to say " John M. C. Smith
minus 1 ;" " Claude S. Carney plus 1.'*
Q. And laid the ballot aside? — A. Yes, sir.
Q. And every time yon did that he got credit for the whole ballot? — ^A. Yes, sir.
Q. Which side was the minus side? — ^A. On the underside of the line and
the plus above the line.
Q. How long have they pursued that system in the second ward?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
The Witness. With the exception of the time we had to string them on a
string, I think, about 20 or 25 years.
Mr. Fellows. Do you know who instituted that system of counting?
The Witness. Yes, sir ; Judge Maynard did.
Mr. Adams. I object to that as incompetent, Irrelevant, and immaterial.
Q. You have seen and watched it a great many years? — A. Yes, sir.
Q. Is that an exact and correct method of estimating and obtaining the can-
vass of votes?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
The Witness. Yes, sir.
Q. Do you know whether the contestant or his attorneys, either of them, made
any inquiry about this book before it was brought here to ascertain about
that? — A. I don't know; I don*t remember of their making any inquiry.
By Mr. Frankhatjser :
Q. Mr. Nichols, at the time of" the canvass of the county canvassing board,
what figures did they use. what returns did they use? — A. They iis^d the state-
ments that were returned to the county clerk from the various precincts except
the second ward of Charlotte, then we used the tally sheet for the reason that
the statement book was not In the envelope which was returned to the county
clerk.
Q. Who made those figures in Exhibit 6 there? — A. Miss Lohr.
Q. Do you know of your own knowledge how many corrections the board made
from her figures? — A. I do not,
Q. You are acquainted with her? — A. Yes, sir.
Q. State whether she is accurate in her work. — A. I supposed her so.
Mr. Adams. Objected to as incompetent, iiTelevant, and immaterial.
Q. Now, did the board, in verifying those figures, use any other set of re-
turns?— A. Than the ones coming from the judge of probate's office?
Q. Different from the ones coming from the county clerk's office?— A. The
ones sent to the judge of probate or board of county canvassers.
Q. In comparing they used those? — A. Yes. sir.
Q. Now I ask you as clerk of the board, did you find any discrepancies in
those duplicate returns — that is, the returns filed with the county clerk and
those returned to the judge of probate? — A. I don't remember of any.
Q. You found none? — A. No, sir.
Q. Were all the returns presented there from the county clerk's office or the
judge of probate's oflftce? — A. Yes, sir.
Q. Were there any missing? — A. No. sir; none missing.
Q. Every one of them were there? — A. Yes, sir.
Q. Either from the county clerk's office or the judge of probate's office?— A.
Yes, sir.
Q. Now I call your attention to some statements made in Mr. Carney's pro-
test filed " after the said statements were sealed in their respective envelopes
OABNBY VS. SMITH. 349
shortly after said election and before the first meeting of the board of county
canvassers said election Inspectors unsealed said envelopes containing said stat^
m^its and returns, as well also as said envelopes themselves were willfully and
unlawfully broken and said statements removed from said envelopes and de-
livered over to various Individuals, including John M. C. Smith and one John
C. Davis, of Battle Creek, Mich., one of the Republican congressional committee-
men and one of the political campaign managers for said John M. G. Smith in
said district." Was that true as stated, as I have read it to you, as far as you
know?— A. No.
Q. In what way? — A. The returns for the board of county canvassers were
not opened in my office.
Q. But, assuming that Mr. Carney meant the returns to the county clerk's
office. I will ask you whether they were delivered over to various individuals,,
including John M. C. Smith and one John C. Davis, of Battle Creek, except
as they would be delivered to any person? — ^A. No, sir; no difference made;
it didn't make any difference who came into the office and wanted to see them»
they could see them.
Q. "That said parties interested in said election of the said John M. C.
Smith were permitted, t)efore the meeting of the said board of county canvassers,
to remove several of said statements, on which the seals had be«) broken as
aforesaid, from the office of the said county clerk, who was the legal custodian
thereof." Is that true? — ^A. I never knew of their being out oif the office;
DO, sir.
Q. ** That among some of those that had some of those statements out of the
office of the said county clerk was one William Smith, a sou of John M. C.
Smith." Was that true? — A. As- far as I know, it is not true.
Q. Do you know of anybody carrying those returns out of the county clerk's
office? — ^A. I do not.
Q. Congressman Smith himself; do you know of his having them at all? —
A. I don't recollect that Mr. Smith was there at all.
Q. Did you ever see him in there looking them over? — ^A. I don't recollect that
I did.
Q. Now I call your attention to some other statements he made here : " That
said John C. Nichols, county clerk of Eaton County, unlawfully connived and
conspired with the said John M. C. Smith and the said William Smith and the
Raid John C. Davis and others interested in the election of the said John M.
C. Smith." Was there any unlawful conniving or conspiracy on your part in
relation to the election of John M. C. Smith? — A. Not a bit.
Q. "By unlawfully permitting the said statements to be manipulated as
hereinbefore described, and aided therein even before the meeting of the said
board of county canvassers." Was there any purpose on your part to allow these
returns to be handled by Mr. Davis or William Smith or anyl>ody else for the
purpose of defrauding Mr. Carney out of his election? — ^A. No, sir; nor na
one else.
Q. I call your attention to something in connection with your appointment
as county clerk : " Your petitioner further shows that on, to wit, one day before
Haid election, the said John C. Nichols entered into a scheme with one Ernest
G. Pray, who was then county clerk of Eaton County, and said John C. Nichols
secured his appointment as county clerk of Eaton County in his own name,
which resignation was not to be made public until several days following his
election." Did you enter into any scheme with one Ernest (». Pray to be ap-
pointed county clerk? — ^A. No, sir.
Q. "That sjild appointment of said John C. Nichols was secured for the pur-
pose of promoting the interest of the said Ernest G. Pray as a candidate for
the office of representative in the State I^egislature of Michigan, and of John
M. C. Smith as a candidate for the office of Representative in Congress." Is
there any truth in that?— A. No, sir.
Q. " Which said appointment, by giving to the said John C. Nichols the cus-
tody of the election returns of the several boards of election inspectors for the
various precincts in said county to the board of county canvassers, giving the
Mid John C. Nichols an opportunity, by the use of his said secretly acquired
office, to have access to the said sealed envelopes containing said election re-
tnms which were in his custody and care." I will ask you was there any
connection whatever between your appointment as county clerk and the candi-
dacy of John M. C. Smith as a Member of Congress? — ^A. No, sir.
Q. In the remotest degree, any connection whatever? — ^A. Nothing at all.
$60 GABiriT vs. SICTH.
Q. Did yon desire tlie appointment of county clerk so yon conld manlyvlate
tboee returns In the interest oC John M. C. Smitb for Oongreas?— A. No, tfr.
Q. Did yon manipulate tbeni In Ills fsTor?— A. No, sir.
Q. In any sbape or form? — ^A. No, sir.
Q. Did John M. C. Smith ever ask yon to work for him on election day
there, or did he ever ask yon to Tote for him?
Mr. AnAMs. Objected to as incompetent, IrrrieTsnt, and immaterial.
The WmfBSB. No^ sir.
Q. Did he ask yon to be appointed county clerk? — ^A. No, sir.
Q. As far as you know, did he know anything about you b^ng appointed
county clerk? — ^A. No, sir.
Q. "That the said John C. Nichols appeared before the board of county
canvassers when said board of county cauTassers actually met and acted as the
representatiye of the said John M. €. Smiths" Is that true?-^A. No, sir.
Q. Did you do or perform any duties there except those which you were bound
to perform as secretary of that board? — ^A. No, sir.
Q. Now, I notice Judge Adams asked you whether you, when the returas
from the townships of Sunfleld and Garmel that weie asked t& be breught In,
yeu said no, not at that time; why dldn*t yon want them at that time?— A.
Because It would be better to work ; we ml^t just as weH do the work witiMnU
didng that that there was no question about
Q. I can your attention to Mr. Carney's statement filed befbre the board oi
county canyaasers that he made, that certain affidavits were sworn to as to eer-
tabi of these votes, which affidavits are now in his possession , did he present
any affidavits — the affidavit of Mr. Sowers or any other aflMavIt— except what
has been i^own here? — A. No.
Q. Were those the only two affidavits that were before the board of can-
vassers upon which Mr. Carney requested you to act? — A. Yes» sir.
Q. As a lawyer and secretary of that board, did you consider that Mr. Car-
ney had before that board any statement of fact, as lawyers understand It, for
that board to act on?
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial, and call-
ing for the conclusion of the wltnesa
The Witness The affidavit in regard to Sunfleld would not be anything;
there would be a question about Cami^.
Q. What is the difference about Carmel?— A. I think in Camel the persro
claimed to have personal knowledge of what occurred there.
Q. At any rate, all there was before the board of county canvassers was Mr.
Sowers's affidavit and that other affidavit, as has been Shewn here? — ^A. Tea, dr.
Q. Mr. Sowers Is a lawyer here? — A. Yes, sir.
Q. How many miles is it from Sunfield to Charlotte? — ^A. I think 20.
Q. He was himself a candidate for what office last fall?— A. Prosecuting at-
torney.
Q. On what ticket? — A. He was not a candidate at all, I guess; he was a
candidate at the primariesi
Q. On what ticket? — A, On the Democratic ticket
Q. For judge of probate, was it? — ^A. Yes, sir.
*Q. I misunderstood it I thought It was for proMwnting attoney.
(No answer.)
Q. All the information which Mr. Sowers pretended to have wss contained
In that affidavit?— A. That Is what the affidavit states.
Q. And, of course, all Mr. Carney could know about it was what Mr. flewen
stated in that affidavit at that time; that is, Mr. Carney didn't data Chat be
had made any personal investigation?— A. I didn't hear krim make say sock
claim.
Recross-examinadon by Mr. Adams:
Q. I suppose you know Mr. McPeek, an attorney here in Charlettes, Baton
County? — ^A. Yes, sir.
Q. He was prosecuting attorney of this county, was he net, at the time tbe
eonnty board of canvassers met after the November, 1912^ electkm?— A. Yes,itr.
Q. He was the adviser of the board of county canvass^v?— A« Yefl^ sir.
Q. He was there, wasn't he, a part of the time when the boavd wib0 la ses-
sion?— ^A, I saw him th^e.
Q. He told you what the situation was out in Sunfield and Oarm^ ^W>t
he, in the presence of tbe board?— A.. Not that Saturday.
CABNBY VS. SMITH. 851
Q. If joa will [wy attentioii to my quesUons once in awbile we will get
along first rate — ^A. Not that Saturday ; so I can't answer tbat
BeAlrect examlnatlofi by Mr. Fbanjchauskb :
Q. Somcttklng lias been said about Mr. Pray, tbe county clerk, or former
county dcrk, carrying some ballots out of the second-ward polling place?— A«
They were instruction ballota.
Q. Ton saw him carrying them away? — ^A. Yes, sir.
BecroB»eya mination by Mr. Adams:
Q. You iMlpsd him carry them away, didn't you?— A. No, sir.
Q. Did yea go away with hhn?— A. No, sir.
4. WhcA he took them away?— A. No, sir.
Q. Did you go with him? — ^A. No, sir.
Q. Where did he take them to?— A. I don't know; I know what he got them
for, but I don't know where he took them to.
Q. Did you see him take them anywhere or put them anywhere? — A. I didn't
see him put them anywhere.
Q. Now we will go back or forward, one or the two. Mr. Omey was be-
fore the board of county canyassers in the morning of die day he was before
that board first?— A. Yes, sir.
Q. He was b^ore that board after it had its noon recess that same day?—
A. I ttlnk 80.
Q. In the aftemoen you had Mr. McPeek come before the board of eounty
canTassorSt didn't you? — A. I did not.
Q. Didn't you hare anything to do with it? — ^A. No, sir.
Q. Did you know he was going before the board of county canTassers? — k^
No, sir.
Q. You found he was there? — A. I know he was there.
Q. When you were there? — ^A. Yes, sir.
Q. There was no dispute there before the board of county canvassers about
the situation in Sunfleld, was there; that the board adjourned and had not
quite counted the votes and went back there on the morning of the 6th and be-
gan counting again, was there, before the board of county canvassers? — A. I
would not consent that that statement is true.
Q. You knew from your investigationB that it was true at the very time Mr.
Osraey was there, didn't you? — A. No, sir; I did not.
Q. The fiscts were stated there by yon and Mr. McPeek about that Just as I
liave stated them, substantially? — A. I didn't know anything about it until
Q. Didn't Mr. McPeek make the statement that he had investigated it and
found that was the situation in Sunfleld; that that election board adjourned
about 1 o'clock in the morning of the 6th and left the voting place and quit
their count and returned in half an hour or an hour after adjourning and began
counting again? — A. I didn't bear any such a statement.
Q. You did not understand that to be the situation from your own investiga-
tion of it, did you, at that time when the matter came up before the board of
county canvassers? — ^A. I had made no Investigation at that time.
Q. You hadn't talked with anybody about it, had you? — ^A. No, sir.
Q. Mr. McPeek didn't make any statement to you about his investigation of
that situation out there, did he, up to that time? — ^A. I don't think he did.
Q. There was no dispute before the board of county canvassers on that
proposition, was there, or any contention or claim made there that the claim
made by Mr. Carney about that matter there in Sunfield was not correct, was
there, when Mr. Carney was ttiere? — ^A. I don't know.
Q^ You don't know? — A. I was not the board.
Q. Mr. McPeek was the man that the board had telephoned to on the ni^t
of November 5 or the morning of tlie 6th, and he telephoned back to them to
go back and count those ballots; you understood that when Mr. Carney was
before the board? — A. No, sir.
Q. You did not know anything about that at that time? — A. No, sir.
Q. Didn't know about it?— A. No, sir.
Q. You hadn't heard that Mr. McPeek did that up to that time?— A. Not until
that alBdavit was filed.
Q. When this aflldavit was filed of Mr. Sowers, you found out about it then,
did you?— A. I knew what the aflldavit stated.
352 CARNEY VS. SMITH.
Q. You talked with Mr. McPeek about it didn't you, to And out whether that
was true? — ^A. No, sir.
Q. Didn't you talk with Mr. McPeek that day when Mr. Carney was before
the board of county canvassers? — A. Yes, sir.
Q. You found out then that was the situation out in Sunfleld substantially
as Mr, Sowers stated in his affidavit, as far as the adjournment of the election
board was concerned? — ^A. No, sir.
Q. You found out, didn't you, that the board didn't adjourn at all?— A, I
didn't find out anything about It.
Q. You didn't find out that day from Mr. McPeek? — A. No, sir.
Q. You didn't find it out as he claimed? — A. Who claimed.
Q. Mr. McPeek, to you there and then. — A. He didn't make any claim to me
about it.
Q. He didn't tell you he had been called up at night by somebody out there,
and advised somebody out there in Suufield to go back and coimt the ballots?—
A. I didn't hear about that until afterwards.
Q. Didn't you hear that the day Mr. Carney was before the board of county
canvassers? At that time, didn't you hear it from Mr. McPeek? — ^A. I don't
think so.
Q. Will you say you did not? — A. I say I didn't hear It from Mr. McPeek.
Q. Did you hear it from anybody? — ^A. Yes, sir.
Q. Who? — A. Some talk on the street.
Q. It was not talked before the board of county canvassers? — ^A. I didn't
hear it there.
Q. Now, then, basing your information upon your legal know^ledge, in answer
to Mr. Frankha user's question, you stated that there was nothing before the
board of county canvassers contained in the affidavit of Mr. Sowers that fur-
nished any evidence to the board of county canvassers to call In the election
board from Sunfield to correct its i-eturns — is that true — but that you did find
there was omething in the affidavit of Mr. Si)encer regarding the township of
Carmel which furnished a basis for the board of county canvassers to call in
the election board from Carmel? — ^A, I didn't say that.
Q. Was there anything in that affidavit of Mr. Spencer's filed with the board
of county canvassers that furnished any basis for the canvass made in the
election transaction there November 5, 1912, in Carmel township? — ^A. My at-
tention was not called tojthat. My recollei'tion is he claimed he had personal
knowledge.
Q. Your contention was, I take it from your answer, that if the affidavit of
Mr. Sowers had alleged any personal knowledge that your opinion would be
that the board of county canvassers had a basis for calling in the board from
Sunfleld? — A. I think they would have.
Q. But based on the allegation of personal knowledge as far as Carmel was
concerned, you didn't consider that furnished any basis for the board of county
canvassers to call in the election board from Carmel? — ^A. I didn't think so.
Q. What was the matter with the affidavit of Mr. Sowers that the board
could not act upon it and do what Sam Robinson requested? — A. I didn't say
there was anything wrong with it.
Q. Nothing wrong? — A. I don't say that now.
Q. That furnished a basis A. (Interrupting.) Wait a minute
Q. I don't want any explanations. — A. I am not going to make any explana-
tions, but I will state what I want to explain.
Q. Answer the question If you can. — ^A. You haven't any right to twist what
I say, and I don't have to answer if you twist It.
Q. You had in your custody the affidavit — the original affidavit— of Mr.
Sowers and the original affidavit of Mr. Spencer? — A. Yes. sir.
Q. What Si)encer was that?— A. N. W. Spencer.
Q. They were filed with you as county clerk? — A. Yes, sir.
Q. They are conspicuous to-day by their absence? — ^A. They are.
Q. You have looked for them? — ^^V. Yes, sir.
Q. You have looked for them in the county clerk's office? — ^A. Yes, sir.
Q. They were in your possession as county clerk of this county from the
time you assumed the duties of the office up to the 1st day of Janpary, 1913,
were they not? — ^A. Yes, sir.
Q. They are gone? — A. I don't know.
Q. You can't find them? — ^A. They are not in the box where they are in-
dexed.
CARNEY VS. SMITH. 353.
Q. Have you looked anywhere else for them in the county clerk's office? —
A- Yes. sir.
Q. You couldn't find them?— A. I didn't find them.
Q. This affidavit of Mr. Spencer's according to your recollection, you say
you can't find it, recited what as to the township of Carmel? — ^A. I couldn't
state except the substance of it.
Q. In substance? — ^A. It alleged the fact that he was present at the poUlns
place In the afternoon. I don't know how it was stated, but anyhow they made
a count in the afternoon.
Q. What more?— A. That is all I can tell you.
Q. Is that all you can tell about It? — ^A. That Is the substance of It.
Q. Well, what was the matter with having the board of county canvassers
on that affidavit of Mr. Spencer's that he had personal knowledge of what
occurred of having them come before the board of county canvassers and cor-
rect their return according to the facts set forth In that affidavit, anything that
you know of? — ^A. I didn't question their right to have them come in.
Q. Why didn't you let them come In? Why were you opposed to having the
election board from Carmel come In when Mr. Carney asked to have them come
in and correct their returns, showing the facts? — ^A. I didn't oppose having them
come in.
Q. Didn't you say you didn't want them to come In at that time, anyway? — -
A- At that time.
Q. Was there any more objection to their coming In at that time than at
some later time while the board was In session? — ^A. Yes, sir.
Q. If they were going to make any correction, was It not necessary to make
the correction In the returns before they made their final canvass? — A, Yes, sir.
Q. Tliat was the day that Mr. Carney was here before the board? — ^A. Yes,
sir.
Q. When Mr. Carney was before the board you objected to the board of
county canvassers having the election board from Carmel come in? — ^A. No, sir;
I did not.
Q. Before the board of county canvassers in Mr. Carney's presence? — ^A. No,
sir.
Q. You did object, did you?— A. To what?
Q. To the election board from Carmel coming In before the board of county
canvassers at the time Mr. Carney was there? — ^A. Yes, sir ; because he wanted
the work stopped right there and not do anything until that was done.
Q. The board could have gone ahead with the canvass of the rest of the town-
Khlps, could they not?— A. That is just what I wanted them to do, but Mr.
Carney had to have everything stop there and do nothing until that board was
in there.
Q. He asked the board to stop right there and do nothing?— A. That is the
point exactly.
Q. And you wanted It to go ahead and then stop and go ahead and do nothing
vnd then have the Carmel board come In? — ^A. No, sir.
Q. All that Mr. Carney aske<i before that board was this: That he wanted
the election board of the township of Sunfleld sununoned before the board of
county canvassers for the purpose of correcting and completing their returns
for said township — have the returns corrected to read November C Instead of
November 5. That is true as far as Sunfield was concerned?— A. The answer is.
No; that Is not true.
Q. What Mr. Carney wanted with reference to Carmel was, he wanted the
election board from Carmel summoned before the board of coupty canvassers
for the purpose of showing whether a part of the count was made before the
hour of 5 o'clock, while the voting was in progress In said township. He
wanted that done with reference to Carmel, didn't heV— A. Yes, sir.
Q. Now, you say what I siild about Sunfield was not what Mr. Carney
wanted? — ^A. No, sir. ^ ^ ,.
Q. Let's see. Mr. Carney, on the 13th day of November. 1912, appeared be-
fore the board of county canvassers and requested the board to summon the
inspectors of election for the township of Sunfleld for the purpose of correcting
and completing their returns for said township, basing his motion upon the
aflMavlt of Mr. Sowers, attached to the protest of Sam Robinson, claiming
that such return should be made to read November 6 instead of November 5,
claiming the returns should show that an adjournment was made, if such were
the fact That was what Mr. Carney claimed, was It not?— A. Yes, sir.
28^—13 23
854 CABNEY VS. SBCITH.
Q. That Is correct this time, as I state In my question? — ^A. Yes, sir; but
Q. Never mind — A. I don't care what you object to; I will tell you some-
thing
Mr. Adams. I object to the witness stating anything except In answer to my
questions.
The Witness. You don't know what your question was.
Q. I ask you whether I stated the facts there in the last question I put to
you as to what Mr. Carney said upon that subject of Sunfleld before the board
of county canvnssers at that time? — A, That is part of what he said.
Q. Y'ou wrote it down here In the record of the proceedings of the board
t>f county canvassers, didn't you? — ^A. Yes, sir.
Q. You had it put In there just as Mr. Frankhauser read it on the record
u while ago? — A. Yes, sir.
Q. Prom the minutes you took when Mr. Carney was before that board? —
A. Yes. sir.
Q. He told you to sit down and take what he said, didn't he? — ^A. No, sir.
Q. You were butting in there, and he finally asked you whether you were
Iiot simply clerk of the board? — ^A. No, sir.
Q. He did not?— A. No, sir.
Q. You went and sat down like a good fellow, and did what your duty was
to act as clerk rather than boss of the board of county canvassers? — ^A. He
knows better thnn that.
Q. That is a fact, isn't It?— A. No, sir.
Q. Mr. Carney asked you who you were? — ^A. Yes, sir.
Q What did you say? — A I told him I happened to be clerk of the board —
clerk of the county.
Q. What did he say to you?— A. Well-
Q. He told you that you had no voice nor vote there, didn't he? — ^A, Yes, sir:
and I told him I knew It. *
Q. Up to that time you had been trying to have a voice? — A, No, sir.
Q. You had been trying to induce the board of county canvassers not to
have the boards of Sunfleld and Carmel come in? — A. That is where you are
wrong; that is not true.
Q. Your answer to the question is that is not true? — A. No, sir.
Q. After that request was made by Mr. Carney, as contained In Exhibit 59,
after Mr. Carney made that request there before the board of county can-
vnssers, did you have the election boards of Sunfleld and the election board of
Carmel township come in before the board of county canvassers before that
board adjourned? — A. I didn't have anything to do with it.
Q. You didn't advise about it one way or the other? — ^A. No, sir.
Q. I understood you to say that no returns were missing — none of the returns
In the difl'erent voting places? — A. Yes, sir.
Q. Then, you mean to say that there was a complete set of returns furnished
to the county clerk's office? — A. I didn't say so.
Q. Was there?— A. No, sir.
Q. Now, what township did not have a complete set of returns to the county
trlerk of the election held November 5, 1912? — A. The only one I recollect was
the statement from the second ward of the city of Charlotte.
Q. Were complete returns before the board of county canvassers from every
precinct in this county? — A. Yes, sir.
Q. Complete returns? — A, Yes, sir.
Q. In the county clerk's office except as you have stated — all were filed In
the county clerk's office except the one you have stated? — A. Now you are
mixing up those that came from the county clerk's office and those from the
Judge of probate's office.
Q. I asked you about the county clerk's office? — A. If you are talking about
the returns to the county clerk's office, I can answer that.
Q. Those were not in your office? — A. They were before the board of county
canvassers.
Q. All right; up to the time, then, that the board of county canvassers got,
if they did get, any returns from the judge of probate's office of that election?—
A. They were alf there, with the exception of the statement from the third
ward of the city of Charlotte.
Q. Mr. Nichols, I understood you to say that they got through sooner In the
second ward than in the other wards? — A. Yes, sir.
Q. They only had 310 votes in the second ward? — A. I don't know the number.
Q. I will show you the poll book. — ^A. Yes, sir.
OABNBY VS. SMITH. 355
Q. Is not that true? — ^A. Yes, sir.
Q. In the fourth ward they had 425, didn't they?— A. Yes. sir.
Q. In the third ward they had 375?— A. Yes, sir.
Q. Is that right?— A. Yes, sir.
Q. Is the first ward the smallest ward in the city? — A. Yes, sir.
Q. They had 164 In that ward?— A. Yes, air.
Q. At elections there are sometimes disputed questions come up irrespective
of the number of ballots that are cast at that election that take the board a
considerable length of time to decide? — ^A. I presume so.
Q. That might take the time of the board took in its work, in finishing its
work longer? — A. Yes, sir.
Q. This second ward in the city of Charlotte you undertook to, or your atten-
tion was directed by Judge Maynard to Exhibit 25, the tally sheet book of the
second ward of the city of Charlotte of the Tote In that ward on the 5th of
November, 1912? Now, I ask you to read all there is opposite the name, or the
printed words, " Representative in Congress," on page 12 in this book with
reference to John M. C. Smith and Claude S. Carney, just as it is on the book
now. — A. (Reading:) "Representative in Congress. John M. C Smith and
Claude S. Carney, Levant L. Rogers and Edward N. Dingley." Opposite the
name of John M. C. Smith, above a fine blue line, are 45 marks; below tlie fine
blue line and above the pink line, I guess It is, there are 8. Opposite the name
of Claude 8. Carney, above the fine blue line, there are 15 marks and below it 20.
Opposite the name of Levant L. Rogers, below the fine blue line, are 5 marks.
Opposite the name of Edward N. Dingley, above the fine blue line, are three
tallies, and below the line there are 25. On the line opposite the name of John
M. C. Smith there are in figures 65, 50, and 161. Opposite the name of Claude S.
Carney, 48—64 — 107; opposite the name of Levant L. Rogers, 3 — 12 — 10;
opposite the name of Edward N. Dingley, 3 — 41 — 22.
Q. Now, that is all there is on that book in explanation of what you have just
read, is it not? — ^A. Yes, sir.
Q. The explanation you gave Judge Maynard, when he examined you on this
particular subject, was supplied by you and is not found in that book any-
where, is it? — ^A. No, sir.
Q. Or anywhere else in the election returns for that second ward, city of
Charlotte?— A. No, sir.
Q. Is that true? — ^A. That is true.
Q. The figiires you read, 65, 48, 3, and 3 are under the heading, "Total
straight votes," page 13, of this same exhibit? — A. Yes, sir.
Q. The figures 59, 64, 12, and 41 are under the heading " Total split votes "?—
A- Yes. sir.
Q. The figures 161, 107, 10, and 22 are under the heading "Total votes re-
ceived " ?— A. Yes, sir.
Q. You stated marks opposite the names of John M. C. Smith, Claude S.
Carney, Levant L. Rogers, and Edward N. Dingley; those marks you refer to
are strokes made on there, are they not, four strokes made and a line drawn
across those strokes to show 5? — ^A. Yes, sir.
Q. Wherever that cross is? — A. Yes, sir.
Q. That is all there is on there in explanation of these figures, are those
marks? — A. Yes, sir.
Q. All you gave in the way of explanation you supplied yourself? — A. Yes, sir.
Q. Outside of this record entirely? — ^A. Yes, sir; sure.
Mr. Fbankhauseb. You mean strokes or tallies?
Mr. Adams. Yes.
Q. Now, when were you deputy county clerk first after January 1, 1895? — A. I
would have to look it up; I don't know.
Q. Can't you tell approximately? — A. I couldn't tell approximately even.
Q. Under whom were you deputy county clerk after January 1, 1895? — ^A. I
tJhink George Becke.
Q. How long were you under him? — ^A. From the time I got my appointment
until his term of office expired.
Q. How long was he in office?— A. Six years.
Q. What part of that six years were you deputy county clerk under him? —
A. Nearly all the time, I think.
Q. Who else were you deputy county clerk under since January 1, 1895? —
A. Mr. Moyer.
Q. How long were you deputy county clerk under him? — A. I don't know.
356 CARNEl' VS. SMITH.
Q. Approximately. — A. From the time I was appointed until the expiration of
his term of office; I couldn't tell you what length of time that was.
Q. Two years? — A. It would not be two years.
Q. Are those the only times since January 1, 1895, that you have been deputy
county clerk? — A. No, sir.
Q. When else? — ^A. Under Ernest G. Pray.
Q. How long? — A. I couldn't tell you that.
Q- Approximately. — ^A. I couldn't tell you approximately.
Q. Mr. Pray was the last one you were deputy county clerk under? — A. Tes,
sir.
Q. You can't tell us, approximately, he being the last one you were deputy
under, how long you were deputy? — A. No, sir. From the time of the appoint-
ment until the 4th of November.
Q, A year? — A. I don't know.
Q. Can't you tell whether a year or not? — A. I am not going to make any
guess; I don't know.
Q. Don't you knew whether a year? — A. No, sir; the records will show.
Q. How long was he county clerk? — A. Four years.
Q. You can't tell us without the records whether you were deputy county
clerk under Pray one year, can you ? — ^A. I think I was more than that, but I am
not going to say positively whether I was one year or three; the record will
show; if I can have a chance to look I can tell you.
Q. He finished his term of office January 1, 1913?— A. He finished hi& office
when he resigned.
Q. He finished his office Just about November 5, 1912, within a day or two
one way or the other of that date, didn't he? — ^A. Yes, sir.
Q. Mr. McPeek, prosecuting attorney, whom I referred to in my examination
of you, was, during the campaign which ended November 5, 1912, chairman of
the Republican county committee? — A. Yes. sir.
Q. There Is nothing on that exhibit there, " 25," that tally sheet book of the
second ward of the city of Charlotte, that indicates, so far as Representative in
Congress is concerned, the sources of the vote, is there? — A. Yes; there is to me;
I don't know whether to you or not.
Q. Is there anything on the book that indicates — written out or anything
else? — A. There is to me; I don't know whether there would be to you.
Q. Would you know, or anybody that would look at that book, unless they
happened to know about the same, know what you say you know? — ^A. No. sir;
that is true.
Q. What position do you hold in any of the local Republican organizations,
or did you, during the fall canipnlgn just prior to the November 5. 1012, election,
if any? — A. Not any.
Q. Did you in the ward conunlttees or anything? — A. No, sir.
Q. You were not a ward committeeman? — A. No, sir.
Q. In the last fall campaign? — A. No, sir.
Q. Did you hold any position with any of the ward committees or any of the
county Repul)llcan committees or the county committee? — A. I didn't act with
them at any time: I don't know whether my name appears on it or not.
Q. Now, there is not on that Exhibit 25 any plus or minus you were talking
about to Judge Maynard? — A. There is to me.
Q. Is there anything shown on Exhibit 25 in the way of plus or minus
there? — A. Yes. sir.
Q. Is there a plus or minus there in connection with the candidates for
Representative in Congres.*4? — A. Yes, sir.
Q. Show me a plus or minus on pages 12 or 13. I am asking you whether
there is a plus or nilnns Indicated by plus or minus characters there on those
two pages. — A. Yes, sir.
Q. Whore is the plus? — A. Above that fine line.
Q. Where? — A. Right along there.
Q. Show me the plus. — ^A. Take your glasses and look; all those marks are
plus.
Q. What marks? — A. Right along there.
Q. You say there is a plus there? — A. All those marks above the line are plus.
Q. Is there a plus character — do you understand what I am asking j'ou, or
don't you? — A. Possibly not.
Q. You know what a plus character Is, don't you? — A. Yes, sir.
Q. I ask you on your oath whether there is a plus character on pages 12 and
13?— A. There is no cross indicating a plus. You asked me, anything to Indicate
plus.
CABNEY VS. SMITH. 357
Q. There is nothing there; some of those tallies are above, some of the other
tallies opposite the name of John M. C. Smith? — A. Yes, sir.
Q. Some of the tallies opi)osite the name of Claude S. (barney — are there some
tallies opposite the name of Claude S. Carney? — A. Yes, sir.
Q. Is there a character minus there anywhere on those pages 12 and IS of
that exhibit?-— A. No, sir.
Q. You say you did not issue any illegal certificates? — A. Yes, sir.
Q. Will you explain upon the record, if you did not issue any illegal certifi-
cates which were the subject matter of that investigation by the committee of
the board of supervisors of Eaton County, why you agreed to pay baclj to the
county of Eaton the moneys that the committee asked you to pay back? — A. It
was the easiest way.
Q. It was the easiest way out of it? — A. Yea, sir.
Q. That is the only reason you did it? — A. Sure.
Q. That was the only reason that you left upon the records and files in the
county clerk's office of Eaton County, Mich., the implication that you had been
guilty of malfeasance in office and complied with the request of the committee
to pay th>it money back into the Public Treasury, because it was the easiest
way out? — ^A. Yes, sir.
Q. That is the only explanation you can make? — A. Yes, sir.
Q. Of your action?— A. Yes, sir.
Q. There was some talk, was there not, on the part of some of the Republi-
cans of this county after the Noyemt>er 5, 1912. election, of contesting the elec-
tion of drain commissioner? — A. I heard some talk of it when the board was
in session.
Q. By the Republicans it was claimed that the Democrat was elected, was It
not, and the Republicans were talking
A. (Interrupting.) Yes, sir; by 6 votes.
Mr. Feankhauseb. We object to that as Incompetent, irrelevant, and Im-
material.
Q. The Republicans w^ere talking of contesting the election of the Democrat
for the office of drain commissioner? — A. Some of them.
Q. That was talked before the board of county canvassers? — A. I did not
hear it before the board of county canvassers.
Q. You heard that before the board of county, canvassers met? — ^A. No, sir.
Q. While they were in session? — A. I heard it while they were in session.
Q. This protest of Mr. Robinson's — there was some difficulty about the vote in
Hamlin Township and the Republicans were claiming, and if they could throw
that out they could elect a Republican drain commissioner? — A. I heard some
claim; that never was in the protest filed.
Q. Mr. Robinson filed this protest against Sunfleld while the board was in
session? — ^A. He filed that protest while the board was in session.
Q. The Republican candidate for drain commissioner carried Sunfield, did
he? — ^A. I would have to look at the returns to find out; I don't know.
Q. Suppose you look. Mr. Hunter was the Republican candidate for drain
commissioner? — A. Yes, sir.
Q. He carried Sunfiekl by 25 votes, didn't he?— A. No, sir.
Q. What did he carry it by?— A. The difference between 252 and 196.
Q. Fred Mllbouni, according to Exhibit 24, opiK)site the name of Mr. Hunter,
it says votes received 252. He received 252 votes? — A. Yes, sir.
Q. And Mr. Milbourn received 196?— A. Yes, sir.
Q. So Mr. Hunter carried the township of Sunfield at the November 5, 1912,
election, by the difference between 252 votes and 196?— A. Yes, sir.
Q. Now, in the township of Hamlin there was a delayed vote there and an
adjournment, was there not? — A. No, sir.
Q. Did you understand there was at the November 5, 1912, election?— A. No,
sir.
Q. A delayed count? — A. They didn't get through the count.
Q. What do you mean? — ^A. As early as some.
Q. Did they take an adjournment, as you understood it? — A. I don't know
whether they did or not.
Q. That was the claim that the board had adjourned before they finished
the count?— A. I didn't hear that claimed.
Q. You never heard that claimed before to-day, have you? — A. Yes, sir.
Q. When did you hear it first? — A. After the board of county canvassers was
in session.
Q. You heard it then?— A. Yes. sir.
358 CABNEY VS. SMITH.
Q. Tbe Republicans were talking of contesting the township of Hamlin on
that account? — A. Some Individuals were.
Q. That was talked of ?— A. Yes, sir.
Q. You knew that at the time the board of county canvassers were In session
that that was being talked of? — ^A. Yes, sir.
Q. And after Mr. Robinson filed this protest In reference to the township of
Sunfield — the certified copy Exhibit 59 — there was nothing further done about
Hamlin, was there? — ^A. There wasn't ever anything done about It.
Q. Nothing was done about it? — A. No, sir.
Q. There was no claim made of contesting the election in Hamlin Town-
ship?— ^A. I didn't hear any claim made of contesting it.
Q. Well, you heard some talk about contesting it? — A. Yes, sir.
Redirect examination by Mr. Frankhauseb:
Q. You were deputy county clerk under Mr. Hamilton? — A. Yes, sir.
Q. When was that; do you remember? — A. Well, I know he was elected In
1892 ; I don't know how much before that or how much after.
Q. Since 1895 was Mr. Hamilton elected? — ^A. No, sir.
Q. This man Houser, one of the men who had trouble with the board of
supervisors, what office does he hold now? — A. He is deputy auditor general.
Q. What office does Mr. Hamilton hold? — A. I think, State accountant.
Q. They are both State officers? — ^A. Yes, sir.
Q. How long have they been in? — A. Mr. Houser has been there better than
16 years and Mr. Hamilton about 16 years.
Q. Mr. Houser must have got his appointment soon after this trouble occurred
as justice of the peace; did he? — A. Yes, sir.
Mr. Adams. I object to that and move to strike it out; there ought to be
better evidence of it; and as hearsay and Incompetent.
Q. Now, this vote for drain commissioner; Mr. Hunter received 252 in Sun-
field and his Democratic opponent 79; now, I will ask you whether Sunfidd is
not Mr. Hunter's home? — A. Yes, sir.
Q. He lives there? — A. Yes, sir.
Q. Besides being an attorney here are you engaged In any other business? —
A. I farm it a little bit.
Q. How many acres of land do you own in and around Charlotte?
Mr. Adams. I object to that as lnconii)etent, irrelevant, and immaterial, and
it is not the best evidence.
A. I own 360 acres besides some interest in some other land.
Q. You have some houses In town here? — A. Yes; and a couple of brick blocks.
Q. Store property? — A. Yes, sir.
Q. Since this matter with the board of supervisors how many years, as near
as you can recollect, have you held public office — deputy county derk, circuit
court commissioner, and Justice of the peace In Charlotte, in Eaton County? —
A. I was in eight years as justice of the peace, and circuit court commissioner
eight years, I think.
Q. You were elected circuit court commissioner last fall? — A. Yes, sir.
J. H. BROWN, being sworn to testify to the truth, the whole truth, and noth-
ing but the truth, testified on behalf of the contestee as follows :
Redirect examination by Mr. Frankhauseb:
Q. Mr. Brown, you live in Charlotte? — ^A. Yes. sir.
Q. How long have you lived here? — A. Twenty-six years the 1st of February.
Q. How old are you? — A. I am 54.
Q. What business are you in? — A. Well, I have been in the clothing busineBS
for 22i years; since then I have been looking after my farm and in the real
estate business.
Q. You are a Reimblican in politics? — A. Yes, sir.
Q. Were you chairman of the board of county canvassers on the November,
1912. election?— A. Yes, sir.
Q. Who were the other two members?— A. Mr. Little, of Grand I>edge, and
Mr. Hawkins, of Charlotte.
Q. What are the politics of Mr. Little and Mr. Hawkins?— A. As I under-
stand, the board stood two Democrats and one Republican.
Q. Have you ever served on the board of county canvassers before this last
year?
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial.
CAKNEY VS. SMITH. 359
A. Tee, sir.
Q. How many years? — A. I think this is my second term; I am not positive.
Q. How long were you elected for? — A. Two years at a time; and yet I am
not certain about that.
Q. You have acted before? — ^A. Yes, sir. I have been on for several years.
Q. When the board of county canvassers met, what are your proceedings?
First, I will show you Exhibit 6, under the head of " Certificate of determina-
tion." in the first line where the signatures are. Is that your signature? —
A. Yes, sir.
Q. Mr. Brown, where did you get the figures from which constituted the
making up of this canvass Exhibit 6? — ^A. How do you want me to answer
that?
Q. Who made these figures, and when were they made? — A. Well, I will say
this: It has been customary before the board of county canvassers for th^
county clerk to first make up this book from the records returned to him these
statements, and immediately upon the board convening we go to the Judge of
probate's office and get the other set of returns and bring them to the county
clerk's office. We have always used the west room below, and we compare all
the returns over the county from the different precincts; that is the first thing
we do.
Q. Do you know who made the figures in Exhibit 6 in this book ; they were
made before the board met, you say? — ^A. I am not positive about that; no, sir.
Q. Who do you understand made them? — ^A. The county clerk.
Mr. Adams. I object to that as incompetent.
Q. Were there any changes made in those figures by the board? — ^A. Only
two instances.
Q. Do you remember what those Instances were? — ^A. I can recall one of
them; the other I can't. In the case of Mr. Nichols, the circuit court com-
missioner ; in the report — the tally sheets from one of the precincts — in carrying
that out In the book they carried that out as 16; there was 10 difference. I
don't know Just the number of figures, but in the writing they were written in
properly, and the footings were proper; but the book that showed the tallies —
the second man and the man* who checked — in that and some other minor office
there were six ; those were all the changes we made.
Q. Was that the county clerk's mistake or the mistake of the statement
book? — ^A. That was a mistake in the statement book.
Q. How did they compare with the figures which you say came from the
county clerk's returns? — ^A-. They were exactly with the exception of that little
error in the carrying out of the figures.
Q. Now, something has been said here about some returns that were missing
at the time you gentlemen canvassed the votes; what was there about that? — •
A. To my knowledge there were none missing.
Q. By that you mean that there were none missing in either place — the county
clerk's returns or the Judge of probate's office? — ^A. Yes, sir.
Q. They were all there? — ^A. Yes, sir.
Q. The statement books and returns? — A. Yes, sir.
Q. Now, did you find any of them where the seals had apparently been
broken? — A. I think there were a number from the Judge of probate's office
that were broken.
Q. About how many would you say were open? — A. Well, now, I wouldn't
say for that ; I think — I will not say how many ; quite a number of them.
Q. Where did you get them from the probate office? — A. Out of the vault,
Q. Who got them? — ^A. The Judge of probate.
Q. He went in and got them for your board? — A. Mr. Hawkins and myself.
Q. Where were they in the probate office? — A. In the vault.
Q. Is that a safe or a room — this vault? — A. It is a vault fixed up. He went
and got them for us.
Q. What shaiM? were they In when handed to you; in one bundle or more?—
A. In one bundle.
Q. Did the Judge of probate carry them out of the vault and hand them to
you ?— A. He did ; yes, sir.
Q. In what way Is that vault secured or capable of being secured? — ^A. Well,
it has doors like safe doors.
Q. Wooden or metal doors?— A. Iron doors, I should Judge— all over the court-
house; the same doors.
Q. What is kept in that vault as a rule?— A. All of the records of the probate
court.
860 CARNEY VS. SMITH.
I Q. The flies and books V — A. Yes. sir; I suppose so.
Q. Who is the judge of probate? — ^A. L. J. Dann.
• Q. Was he the same one that is now? — ^A. Yes, air.
Q. He was a Republican? — ^A. Yes, sir.
Q. I wish you would give as briefly as possible the proceedings of your board
there with reference to tlie congressional vote. What was done before your
board by Mr. Carney or anybody representing him? — A. I don't know just what
you want.
Q. Well, how many days were you in session? — ^A. I think three days.
Q. You met on the 12th, did you? — ^A. The first Tuesday after the election.
Q. Your book shows the day you adjourned; what day was that? — ^A. On the
14th.
Q. Were you in session three full days? — A. No. sir; we worked night and
day; we worked nights — until 11 o'clock, I think, the first night.
Q. What did you work at? — A. Comparing the returns and getting them
checked on the book.
Q. Now I will ask you this question : Snpiwse that the county clerk or any-
body else had not tabulated those returns until you met and you had to tabulate
the returns; what sort of a task would you have? — A. It would prolong our
work at least one day.
Q. Do you think you could do it in one day? — A. I don't know; we never
have done it
Q. It has always been the custom, I understood you, for the county clerk to
have them already tabulated when you met?
Mr. Adams. Ol)jected to as inc()mi)etent, irrelevant, and immaterial.
Q. As far as your knowledge goes? — A. Yes. sir.
Q. Now. can you remember the filing of any protest before the board?— A.
Two aflldavits were filed.
Q. I will show you one of them, a certified copy here. I will show you Ex-
hibit 50; look that over and see whether you ever saw a paper like that — that Is,
a certified copy of what we claim was filed. Who filed that? — A. Well, I think
that is a copy of the affidavit.
Q. Was there one filed with reference to Carmel of a similar character?— A.
There was.
Q. Similar in form? — A. Yes, sir.
Q. Do you remember who made that affidavit? — A. I think that was signed by
Nathan W. Spencer.
Q. Are you acquainted with him? — ^A. Yes, sir.
Q. Where does he live? — A. In Charlotte.
Q. Votes in Charlotte? — A. He must have voted here.
Q. I will show you the last page of Exhibit 6. See whether you ever saw
that — that is. on that page? — ^A. Yes, sir.
Q. Was it in that form when you signed the book there? — ^A. It was.
Q. Did you read that over and consider it? — A. Yes, sir; I dictated it. I dic-
tated it to Mr. Nichols from a copy that Mr. Carney gave Mr. Nichols.
Q. Was it Mr. Carney's writing that you read from?— A. No, sir; Mr.
Nichols's.
Q. You mean the pni)er Mr. Nichols wrote yon dictated to the typewriter?—
A. Yes, sir.
Q. Who wrote it off on the tj'pewrlter?— A. Mr. Nichols.
Q. In whoso handwriting was the pajjcr .vou read? — A. Mr. Nichols's.
Q. Was Mr. Carney there at the time? — A. No, sir.
Q. Did you see Mr. Nichols and Mr. Carney together when that im^er wsii^
gotten up?— A. Mr. Carney sjit by the side of me and dictated to Mr. Nichols
what he wished to. .
Q. Now, after considering that — I want to ask you whether Mr. Nichols in
any way dictated or tried to dictate to the board of county canvassers ^^^^
bringing in Sunfield or Carmel. one or both, of the board of insi)ectors?— A. H^
did not.
Mr. Adams. I object to that as Incompetent and immaterial and as the coi-
clusion of the witness; It does not state what the conversation was. .
Q. Following that up, ju.«t tell what you remember that was sjild ^'^^^ ",f
Mr. Carney, or anybody in his behalf in his presence, or by Mr. Nichols ^^?^^
bringing in those boards. If any tiling was said?— A. I don't exactly know wn
you want me to answer. ^^
Q. Did 3'ou hear any talk between Mr. Carney and Mr. Nichols or 3lr. ^^
there directly with Mr. Caniey? — A. No, sir.
CUGSTBY VS. SMITH. 361
Q. If there was any talk that yon remember of thnt was had there nbont
brin^in^ In those boards while Mr. Carney was present? — ^A. Shall I start back
where Mr. Carney came?
Q. Yes. — ^A. Mr. Carney landed there In the morning, got off the morning
train between 9 and 10 o'clock, and came into the room where we were can-
Tassini? the Yote and introduced himself, and I introduced him to another
m'ember of the board, and he wanted to know what we were doin^. and I told
him we were compiling the vote. He said we didn't want to go any further
until we recognized a couple of affidavits, and wanted to know whether a
couple of affidavits had been filed, and I stated yes, and showed them to him,
and be read them. He wanted to know whether we had taken any action on
them atid I told him we had not. He asked if we would, and I said yes, before
the board adjourned. I think in the meantime he and Mr. Nichols had some
little tilt and Mr. Nichols came inside in the window; it was some point I
didn't know anything about.
Q. Were they points of law or fact? — A. I think it was points of law; and
I think in the meantime Mr. McPeek came in.
Q. Who was he? — A. He was the prosecuting attorney ; and I introduced Mr.
McPeek to Mr. Carney and he and Mr. McPeek talked a few minutes, and Mr.
McPeek says, " What is the disturbance," and they started in then and talked
it over between themselves, and finally went out and we proceeded with our
work. I think between 1 and 2 o'clock in the afternoon, not far from half past
1 o'clock, they came in again and Mr. Carney asked whether we had come to
any decision, and we said no. He said he would like to go home on the 3.28
train and he wished we would take some action before he went, and we agreed
to do it. Mr. McPeek, I think, and Mr. Carney went out in the other room and
shut the door, and we talked the matter ovier and the board decided those pro-
tests were not sufficient for us to call the boards in.
Q. Did you decide that unanimously? — A. We did.
Q. Was there any member of the board who hung out and wanted them
brought in? — ^A. Neither one.
Q. Was that all that occurred In reference to the protest? — A. After we de-
cided that I said to Mr. Carney that I did not consider there had been any
fraud, and then he took up the books and showed me they were dated the 5th
when they should have been dated the 6th, from his idea.
Q. He didn't claim any fraud? — A. No, sir: he did not.
After that we called Mr. McPeek and Mr. Carney and Mr. Nichols in to-
gether and told Mr. Carney what we had ruled, and he asked whether it was
the unanimous decision of the board, and we all said yes. He sjild he wished
to make a little statement, and Mr. Nichols took down what he wished to say,
and after that was done he went away.
Q. Was there any controversy between Mr. Carney and Mr. Nichols as to what
that statement should contain when Mr. Nichols was writing it down? — A. I
don't think so.
Q. After that you dictated to Mr. Nichols Just as it was written down on the
paper? — ^A. Well, Mr. Hawkins and I sat together when it was dictated.
Q. Do you know what l>ecame of that paper? — A. I do not; they were put
In a jacket; all those affidavits; Mr. Carney's two affidavits; and that is the
last I saw of them. They were already to file.
Mr. FBANKHArsEB. I wlll offer in evidence Exhibit 6. including what ap-
pears on the last page of the exhibit, and will use such parts of it as I may
desire in the further progress of this contest. I will offer it in evidpiice. and
will not take any more of it than we want when making up the final record. I
offer the last page of Exhibit 6 and page 38. but I offer it all.
Mr. Adams. We object to such i)arts of it as do not relate to the office of
Representative In Congress as irrelevant and immaterial.
Cross-examination by Mr. Adams:
Q. I understood you to say that Mr. Carney's affidavits were put In a Jacket? —
A. Yes, sir.
Q. Mr. Carney didn't file any affidavits there, did he?— A. Affidavits filed for
him.
Q. Mr. Carney didn't file any affidavits there, did he?— A. I don't mean to
say he did.
Q. What affidavits do you refer to? Tell me what aflklavits you referred to
when you say they were put in a jacket? — A. I referred to the affidavits that
Mr. Robinson filed there of Mr. Sowers and Mr. Silencer.
362 CABNBY VS. SMITH.
Q. Those are the only affldavfts yon referred to? — A. Tee, sir; they were
filed in a Jacket.
Q. You don't know whether they were filed in the interest of Mr. CJamey, do
you, of your own knowledge? — A. Mr. Carney claimed they were filed there for
him ; that is what be stated to us.
Q. He simply referred to those affidavits when he appeared before the board
that were already filed — the affidavits of Mr. Sowers and Mr. Spencer? — A. Pos-
sibly that is so.
Q. You don't know whether they were filed there by him in the interest of
Mr. Carney or whether they were filed there because of a contest over some
other officers, do you? — ^A. No.
Q. Don't you know there was talk of a contest over the office of drain com-
missioner?— A. No, sir; I did not.
Q. Well, you heard that, didn't you, while your board was In session, there
was some talk of contesting the township of Hamlin? — ^A. Can I tell that my
way? I don't wrtnt to do any arguing.
Q. Was there any talk there that you heard while your board of county can-
vassers was in session about contesting the vote of the township of Hamlin? — ^A.
Not before us.
Q. Whether before you or while your board of county canvassers was in ses-
sion; not so much while It was in session, but after it convened and before it
adjourned had you heard of that? — No, sir; I heard this: I don't know what
township, Mr. Carney said the day he was there he heard of those two, and he
said he would file six or seven more, but he didn't do it
Q. You decided that day that you did not consider there was anything in
anything shown that would Justify you in calling in the election boards of
Carmel and Sunfield? — A. Yea, sir.
Q. Mr. Spencer, you were asked by counsel whether he was a resident and
voter in Charlotte, was he? — ^A. He must have been; he moved in.
Q. He made an affidavit in reference to Carmel Township that was attached
to Mr. Robinson's protest to your board of canvassers? — ^A. His name was at
the foot of it.
Q. You raised the question before the board whether Mr. Spencer was quali-
fied to make the affidavit setting forth the facts as claimed in his affidavit in
reference to the township of Carmel while he was a resident and voter in the
city of Charlotte? — A. Yes, sir; we did.
Q. That is, you took the position, because Mr. Spencer was a resident and
voter in the city of Charlotte, that he had no right to make an affidavit of
what occurred In the township of Carmel? — A. Yes, sir.
Q. And that was the reason why you took the position that there wasn't
Anything in reference to the affidavit of Mr. Spencer and the township of Carmel
that Justified you in calling the election board of Carmel down? — A. Well, now,
you have a pretty long rigmarole ; I don't know what you want.
Q. That was tlie reason you gave while your board was in session? — A. Not
by me.
Q. Was not that the reason given by some members of the board? Didn't
you take the position there, while Mr. Carney was there, that because Mr.
Spencer had made that affidavit with reference to Carmel Township that there
was nothing before the bonrd, as far as Mr. Si)encer's affidavit was concerned,
that Justified the board of county canvassers In calling in the election board
of Carmel Township? — ^A. Yes. sir.
Q. You took that position because Mr. Spencer was not a resident of Carmel
Township? — ^A. Yes, sir.
Q. You didn't consider, then, that any man who knew the facts, whether he
lived in Carmel Township or whether he lived somewhere else, if he claimed to
know what he was testifying about, was a competent man to furnish your
board any evidence as to what that board in Carmel Townsiiip did at the
November 5. 1912, election? — A. Yes. sir.
Q. Well, then, I understood you to siiy that the fact that Mr. Spencer, who
was not a resident of Carmel Township, made that affidavit was the reasou
why you did not consider there was any evidence there before your board to
ret upon. Is that true? — A. I don't think I said that.
Q. Was not that the fact? — A. That was one reason for it.
Q. That was the reason you gave to Mr. Carney, was it not? — ^A. Well, the
board — that was the decision of the board ; I was not the whole works.
Q. Yonr board did docido it upon that ground, that because Mr. Spencer made
that affidavit, although he recited in it what the facts \vere, because he was a
GABNBY VS. SMITH. 363
residait of Charlottle and was not a resident or voter in tbe township of Oarmel
Township when the election of November 5 was held, therefore your board was
not justified in calling in the election boaid of Carmel Township before the
board of county canvassers? — ^A. Yes, sir.
Q. Tou and Mr. Nichols did talk in regard to that matter while Mr. Carney
was there, didn't you, in regard to calling in that board from Carmel Town-
ship?— ^A. I may have been ; perhaps I did.
Q. You were the only ones, besides what Mr. Carney said there, to say any-
thing on that subject until Mr. McPeek came in? — ^A. Well, we were the only
ones that time.
Q. Mr. McPeek came In there about what time? — ^A. I think along half past
10 or such a matter — 10 or half past.
Q. Mr. Carney did not get here until half past 10, did he? — ^A. I don't know
when he came; he came in, I think, between 9 and 10 o'clock.
Q. Don't you know he did not get here until half past 10 o'clock? — ^A. I don't
know; he may have been here the day before.
Q. Don't you know that he did not get into this city until half past 10 o'clock
in the forenoon? — ^A. I don't know it.
Q. If he did not get in until half past 10, he could not have been before the
board of canvassers before half past 10 that day, could he? — ^A. If he didn't
get In here until half past 10.
Q. Mr. McPeak did not come in any time when Mr. Carney was there until
you got back from your noon adjournment? — ^A. Yes; he did.
Q. He did?— A. Yes, sir.
Q. It was just before Mr. Carney went out? — ^A. He and Mr. Carney went out
together. They talked there and went out.
Q. It was nearly noon when Mr. McPeek came in, was it not? — A. I don't
think so.
Q. You said that Mr. Carney said there was no fraud In Eaton County?— A.
I said so.
Q. You say now that he said before your board that there was no fraud in
Eaton County? — A. I say so.
Q. Mr. Nichols advised your board there not to call in the board from Sun-
field and Carmel, did he? — A. He did not, to my recollection.
Q. Not while your board was in session? — ^A. No, sir.
Q. You heard his testimony here, sat in the room when he testified to that? —
A. Yea, sir.
Q. You heard what he said about that, that he advised you not to call that
board in? — A. I heard him say so.
Q. You say that didn't occur ?^A. I don't think so.
Q. Then you say that Mr. Nichols did not advise you? — A. I don't think he
did.
Q. Mr. Carney asked Mr. Nichols at some stage in the proceedings there
when Mr. Nichols was also present who he was? — ^A. Yes, sir.
Q. And who he represented? — ^A. That is not the way he said It.
Q. He asked him who he was? — ^A. Mr. Nichols sat In the window
Q. I asked you if Mr. Carney did not say to Mr. Nichols in substance, Who
are you? — A. No, sir; he did not.
Q. In substance? — A. I would not call It in substance.
Q. All right. Didn't Mr. Nichols reply " I am John C. Nichols, county clerk,"
or that in substance? — A. No, sir.
Q. Didn't Mr. Carney then say, in substance. ** Well. Mr. Nichols. I am glad
to find out who you are: you have no voice or no vote on this board"? — ^A.
He didn't say that.
Q. In substance? — A. No, sir.
Q. Did you find an envelope In the judge probate's office containing the re-
turns of the November 5, 11)12. eiecticMi from the township of Carmel? — A. Yes,
sir; there were 25 envelopes and 25 returns.
Q. In the judge of probate's office? — ^A. Yes, sir.
Q. W^hot did you find In the envelope. If there was anything In It In the judge
of probate's office. In the returns from Carmel Township; what returns did you
find in the envelope? — A. I am not positive what the envelope contained: I know
there were — if I recollect they were not distributed as they should be; they
were all In one enveloi)e and part should have been in another envelope.
Q. The returns. In other words, what the law required to be In one envelope
in some Instances were not In the envelope at all. Is that right?— A. If I remem-
ber right— I don't know as I can tell you exactly— if I remember right not only
364 CARNEY VS. SMITH.
in tlie judge of probate*8 office but the county clerk*s office bad a poll book In
one enveloi)e and the other had all the statement books in.
Q. That was not as you understood the law required? — A. Well, it was not
anything very serious.
Q. That was not as you understood what the law required*/ — A. I don't Imow
as I am positive what the law required.
Q. You understood what the law required? — A- I think a tally sheet and
statement book should be in each place.
Q. That is the way you understood the law? — A. Yes. sir.
Q. You didn't find them that way? — A. Maybe not.
Q. Is it not a fact that there was no envelo]>e in the probate Judge's office
from the township of Carmel ? — A. No, sir ; it is not
Q. Is it not a fact that the returns that the county clerk presented here that
were left in his possession after the board of county canvassers adjourned that
there was no envelope in that lot or any other place returned from the town-
ship of Carmel?— A. No, sir; that is not a fact
Q. What did you do with the envelope from the township of Carmel? — ^A. I
don't know, but it was there when we canvaR^ied the vote there — the envelope.
Q. Addressed to the board of county canvassers, care Judge of probate or
register of probate; you say there was such an envelope there? — ^A. Yes, sir.
Q. In the Judge of probate's office from the township of Carmel before you
when your board of county canvassers convened and went in and got those re-
turns from the Judge of proba*e*s office? — ^A. Yes, sir.
Q. You say there was an envelope there addressed in the manner you have
indicated from every voting place that existed in the county of Eaton on the
6th day of November, 1912?— A. Yes. sir.
Q. Do you find now among those envelopes before you, which have been pro-
duced by the county clerk of Eaton County, any enveloi)e addressed to the board
of county canvassers, care Judge of probate or register of probate, Charlotte,
Mich., from the township of Carmel, of the election of November 5. 1912?
Mr. Frankhauseb. We object to that as incompetent and Immaterial.
Q. Will you please look through these and see whether you find such an
€nvelo|)e there? — A. I can look through if you want me to.
Q. If you please. Do you find one? — A. I don't find any there.
Q. You do not? — A. No. sir; I do not.
Q. I produce before you another batch of enveloi)es, addressed to the county
clerk, containing the election returns of November 5. 1912, elec;tion, and ask you
whether you can find among those any enveloix* addressed to the board of
county canvassers, care Judge of probate or register of probate. Charlotte
Midi.?— A. No. sir.
Q. You don't find any in that batch, do you? — ^A. Not to the judge of probate.
Q. Do you find any addressed to the board of county canvassers, care Judge
of probate or register of pn)bate, Chnrlotte? — A. 1 understood you to ask lae
that nnd I said there was not any in this bunch, no^ to the Judge of probate.
Q. Is it not a fact. Mr. Brown, that you and Mr. Hawkins, while your board
wj's in session, when you were iooking for those returns, after you had been to
the Judge of probate's office and go' ten the returns that you did get, whatever
you got there, out of that vault that you went back to the Judge of probate's
office and asked the Judge of probate whether there was not an envelojie there
with the election returns from the township of Carmel? — A. No, sir.
Q. Or a missed envelope? — A. No. sir.
Q. Did you go back to find any more ele<»ti<m returns after you got the
returns in the first Instance from the Judge of i)robate's office? — ^A. No, sir; I
did not.
Q. You are a Republican in politics? — A. Yes, sir; I never voted any other
ticket.
Q. Your age is what? — A. I am 'A.
Q. Your business is what? — A. I sjiid I was in the clothing business for 22J
years, and have lived here 26 years the 1st of Febniary.
Q. Mr. Hawkins was not the man who had been apiwinted i-egularly as com-
missioners are appoin*etl. or officers rather, to act on that jmrticular cHnvassinif
board, was he? — A. No, sir: he took the place of Mr. Bacon, In Sunfield, who
was sick.
Q. You apiwinteil Mr. Hawkins to act, did you? — ^A. I did not
Q. Who did?— A. I will explain. He and Mr. I^ittle came in the forenoon to
the county clerk's office, we had been notified by Mr. Bacon that he was not
able to be here, and he told us that we would have to fill the board, which we
CARNEY VS. SMITH. 365
have power to do, and Mr. Little, of Grand Ledge, stated to me, ** We will have
to get somebody," and I went to the front door, and Mr. Hawkins was coming
in, and I asked him if he was very busy, and he said " No," and I says, " Come
in the clerk's otBce," and I introduced him to Mr. Little and says, "Mr.
Hawkins will help us out,'* and he did temporarily.
Redirect examination by Mr. Fbankhausex:
Q. Did your board call In Mr. McPeek? — ^A. No, sir.
Q. What talk did you have with Mr. Carney, or did you understand what the-
discussion was between him and Mr. Carney? — ^A. Well, I don't know that I
would be able to do that ; they talked about the law in regard to a few things.
Q. Discussed the legal propositions as you understood it? — ^A. Yes, sir.
Q. Now, Judge Adams in his cross-examination desired you to state just what
occurred; I wish you would state what Mr. Carney did sky when he said to
Mr. Nichols "Who are you?" — ^A. Mr. Nichols sat in the window, and I think
1 said Mr. Carney was doing this talking, and Mr. Nichols said, " I will have
to take issue with you," and he wanted to know what right he had to butt in»
and Mr. Nichols said, ** I am the county clerk of Eaton County, and we will not
allow any man from Kalamazoo to come here and dictate to us how business,
shall be done in Eaton County." " I beg pardon," he says; ** I am glad to know
you are the county clerk ; I beg your pardon."
Q. Did Mr. Carney tell him he had no voice and no vote? — ^A. No, sir.
Mr. FRANKHAX7SER. Exhibits 65 and 28 are the statement books from the
township of Curmel, and Exhibit 17 is the tally sheet from Camiel Township —
in other words, the duplicate statement books from Carmel Township and one
tally sheet — ^and are in an envelope marked " County clerk."
(Whereupon the hearing was adjourned until 9 a. m. Wednesday, Mar. 26,.
1913.)
Wednesday, March 26, 1913 — ^9 a. m.
H. A. HAMILTON, being duly sworn to testify to the truth, the whole truth,,
and nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Maynard:
Q. Mr. Hamilton, where do you reside? — A. Second ward, city of Charlotte.
Q. County of Eaton, State of Michigan?— A. County of Eaton, State of
Michigan.
Q. What is your age? — A. I will be 33 next month.
Q. What official position did you hold in this city on the 5th day of November^
1912? — A. I was alderman of the second ward.
Q. Do you still hold that office?— A. I do.
Q. How long have you been alderman of the second ward, city of Charlotte? —
A. This is the end of my third year.
Q. How long have you served as alderman of this city? — A. Two yeara
Q. Were you present at the general election held in the second ward of the
city of Charlotte on Tuesday, the 5th day of November, 1912? — A. I was for
part of the day.
Q. Did you officiate on the election board in that precinct that day? — ^A. I did.
Q. What part of the day? — A. From the time the polls opened at 7 o'clock
until 12.30, perhaps.
Q. Who was the other alderman? — A. Mr. Claude Knowles.
Q. Is he now alderman of that ward? — A. He is not; no, sir.
Q. When did he* retire? — A. About a month or six weeks ago he moved into-
the fourth ward and resigned his position on that account.
Q. He removed from the second ward? — A. Yes, sir; to the fourth.
Q. For his permanent residence? — A. Yes, sir.
Q. During the forenoon who composed the election board of the second ward
of the city of Charlotte? — A. Claude Knowles and mypelf as inspectors, and
Mr. Roy Preston and Herman Guide as clerk, and Mr. liogers.
Q. How many booths were there in that precinct? — A. Four booths.
Q. Which way did they set facing? — A. The booths ran east and west in the-
precinct.
Q. Where was this election held in that ward? — A. It was held in the base-
ment coriridor of this building — the courthouse.
Q. In what is called the lobby of the basement? — ^A. In what is called the
lobby of the basement; yes, sir.
366 CARNEY VS. SMITH.
Q. How many doors are there on the west of the basement of the court-
house?— ^A. Two doors.
Q. How many on the east? — A. Two.
Q. Is there a corridor running from the northeast door to the basement? —
A. To the northwest door of the basement, right straight through*
Q. Prom east to west? — ^A. There is; yes, sir.
Q. Is there a corridor running from the southeast door of the basement to
the basement to the southwest door of the basement, right straight through the
building? — A. Yes, sir; there ia
Q. Is there a door to the basement on the north side of the basement?— A.
Yes, sir.
Q. Is there a corridor running from the lobby to that north door in the base-
ment?— ^A. Yes, sir.
Q. Are those three corridors all the corridors there are in the basement?—
A. Yes, sir; they are.
Q. Now, what was the railing that inclosed the booths? — A. There were two
I)OSts, one in the center of the lobby, and to one of those posts there was a
wooden fence with two gjites in it, then, stretched from the iiosts on each side,
we had ropes.
Q. Those ropes formed a railing? — A. Yes, sir.
Q. Inclosing the polling place? — A. Yes, sir.
Q. Were the ropes on each side attached at the west end? — A. Yea, dr.
Q. And at the east end to these posts? — ^A. Yes, sir.
Q. Those were iron columns? — ^A. I think they were; yes, sir.
Q. The wooden fence at the east end of the booths were lashed to those iron
posts; were they not? — A. Yes, sir.
Q. Now, was the wooden fence with the gates attached to it running north
and south? — A. Yes, sir.
Q. Which end of that fence was it where the voters entered? — A. The voters
entered at the north gate.
Q. So they went in on the north sides of the booths? — ^A. Yes, sir.
Q. Where did the voters have their exit from the voting place? — ^A. They
passed through the booth and came out on the south side, and then went out
from the polling place at the south gate. That would be the southeast comer
of the polling place.
Q. What part of the work was assigned to Claude Knowles, the inspector?—
A. Initialing the ballots and passing them out to the voters as they came in.
Q. Did you have a table near the entrance gate? — ^A. I did; yes, sir.
Q. At the northeast corner of the voting place? — ^A. Yes, sir.
Q. Where did he place the ballots when he had them initialed? — A. Why,
they were on the table.
Q. As the voters came in, what did he do? — A. He ascertained their names
and called out the names to the clerk and handed them a ballot
Q. What did they do then? — A. They took their ballot and entered the booth,
any one that happened to be vacant.
Q. Do you know or did you know or learn In any way during the time you
were there of any voter that had his ballot marked for him? — ^A. I don't know
of any voter having his ballot marked ; no, sir.
Q. When the voter had prepared his ballot, what did he do then? — A. He
folded his ballot and came out of the booth and handed it to me.
Q. Where did you stand? — A. On the south side of the booths.
Q. Toward the west end of the voting place? — ^A. I think about halfway.
Q. Did you see any challengers there for either party there in the place? — ^A.
Yes, sir.
Q. Who? — A. I believe the challenger for the Democrats was Mr. P. M. Over-
meyer. The Republicans for a time, I think, had Jim Payne, and I do not—
but John C. Nichols acted for a lime.
Q. Did you see anybody else but those two? — A. When Jim Payne went to
dinner his father, Henry Payne, came and took his place while he went to dinner.
Q. Did either of your inspectors go to your dinner that day? — ^A. Yes, sir.
Q. Which one went first? — A. Mr. Knowles went first
Q. What did you do while he was gone? — A. When he went away he left
enough ballots initialed to supply the voters while he was gone, and I attended
both ends; that is, I handed out the ballots to the voters and then passed on the
other side of the booths and deiwslted them in the box.
Q. Did anybody else while you were there deliver any ballots to voters or take
in any ballots — receive any ballots to be deposited in the box'— but yourself and
Mr. Knowles? — ^A. No, sir.
CABNEY VS. SMITH. 367
Q. When Mr. Knowles returned what did you do? — ^A. When Mr. Knowles re-
turned I told him I had been sick all day, and if he could get G. R. Barber to
come and take my place I would go home.
Q. What business is he in?-^A. In the hardware business with his father.
Q. He is an old resident of Charlotte? — ^A. Yes, sir.
Q. Was that satisfactory to Mr. Knowles?
Mr. Adams. Objected to as irrelevant and Immaterial.
A. It was.
Q. Did you then leave and go to dinner? — ^A. Yes, sir.
Q. What did you do when you returned al>out Mr. Barber? — ^A. When I got
home I asked my wife
Mr. Adams. I object to the conversation with his wife.
Q. You telephoned to him? — ^A. Yes, sir.
Q. And he came to your house? — ^A. Yes, sir.
Q. What was said? — ^A. I asked him if he would go and take my place?
Q. Did you tell him why?— A. I did.
Q. What did he say?
Mr. Adams. Objected to as irrelevant and immaterial, any conversation would
be hearsay.
A. He said he had already had his dinner, and he could go and would go right
away.
Q. Did he leave your place at once? — ^A. Yes, sir.
Q. Did you return again to the polls? — ^A. No. sir.
Q. Were you there when they counted up? — A. No, sir.
Q. Did you go to the polls again that day? — A. No, sir.
Q. What was the reason? — ^A. I went right to bed.
Q. Why? — ^A. Because I was sick.
Q. When were you taken sick? — A. The night before election.
Q. You were able to go the next morning when you did? — ^A. I wasn't hardly
able; no, sir.
Q. You stayed as long as you could? — A. Yes, sir.
Q. When the votes were handed to you to deposit in the ballot box, what did
yon do with them? — ^A. I took the ballots and deposited them in the box.
Q. Did you make any announcement? — A. I called out the name to the clerk.
Q. Called the names to the clerk? — ^A. Yes, sir.
Q. And the number of the ballot? — ^A. And the number of the ballot.
Q. What did you do with the perforated comer? — ^A. I tore off the comer and
deposited the ballot in the box.
Q. Did you see a man by the name of Towne about the polling place? — ^A.
Yes, sir.
Q. More than once? — ^A. I am inclined to think he was in there more than
once, but I will not be sure about that.
Q. Where, with reference to the voting place, did he live? — ^A. Well, he lived
on the comer, Just west of the courthouse.
Q. Was there any street between his house and the courthouse square? —
A. Yes. sir.
Q. Were you here when Mr. Overmeyer was sworn for the contestant? — ^A.
I was not,
Q. On which side were you located? All the time you were there, on which
side of the voting booths were you receiving ballots? — ^A. On the south side.
Q. Did you at any time have a ballot of any description of any kind in
your hand talking to any voter, while you were in the precinct, and explain
how to vote for any particular candidate? — ^A. No, sir.
Q. Did you have a ballot in your hand and say to any man that day, " If
you want to vote for John M. C. Smith make a mark here " or " Make a mark
lilse that" or anything like that?— A. I did not; no. sir.
Q. Did you have a ballot in your hand and make any explanation to any
voter as to how to mark his ballot? Did you make any such a remark on the
5th day of November, 1912, at that election? — A. No, sir.
Q. I think it was something in this language that Mr. Overmeyer testified that
it was some old man; he didn't know what his name was and he did not re-
member how he was dressed, but he thought he had on a dark hat and a dark
coat, and he stood by you and you had a pai)er in your hand — some kind of a
pjiper— he didn't know but it was an instmction ballot, and that you were talk-
ing with him and told him if he wanted to vote for John M. C. Smith to mark
bis ballot so — anything of that kind stated?— A. I don't remember of any such
a circumstance; no.
368 CAHNEY VS. SMITH.
Q. Do you remember of any voter that day asking for any asslBtance in
marking big ballot? — ^A. I don*t remember of any snch a thing; no, sir.
Q. Did you hear them ask for any sort of instructions? — ^A. I think some
asked for instructions. I don't remember of any particular case.
Q. Or what Instructions they asked?
Mr. Adams. Let him state the conversation.
A. Why, they would ask, perhaps, fellows that could not see very well, would
ask which was the Republican column and which the Democratic column.
Q. Is that the extent of what you beard? — ^A. Yes, sir.
Q. Did you hear any man ask any member of the board at any time for in-
structions as to how to vote for any particular or specified candidate?— A.
No, sir.
Cros&-examlnation by Mr, Adams:
Q. I suppose that some of those fellows who asked which was the Democratic
column and which was the Republican column asked you that question?— A. I
don*t remember that they did; no, sir.
Q. Well, did they ask? Who did they ask?— A. They asked Mr. Knowles.
naturally, because he handed them the ballot.
Q. I don*t care, naturally ; I am asking you now what they did ask? — ^A. As
far as I know, they asked Mr. Knowles.
Q. Did they ask Mr. Knowles? — ^A. So far as I know, they did.
Q. Did they ask anybody else? — A. Not that I know of.
Q. They didn't ask you?— A. No, sir.
Q. Did you tell any of them which was the Democratic column and which
was the Republican column? — A. No, sir.
Q. You say that you didn't have a ballot and make some explamitlon to ft
particular voter there that day, to some one? — A. I did not.
Q. You are sure about that? — A. Yes, sir.
Q. You can't be mistaken? — A. No, sir.
Q. You said that you were on the south side of the booths when you received
the ballots?— A. Yefl, sir.
Q. How many fellows were pi-esumed to act as insjjectors there that day?—
A. Two.
Q. You only had two InsiiectorsV — A. That is all.
Q. You assumed to perform the duties of one of the insi)ector8 so long as you
were there? — A. Yes, sir.
Q. Mr. Knowles assumed to perform the duties of another inspector while
you were there? — ^A. Y'es, sir.
Q. Of course, you don't know anything of your own personal knowledge
when you were not there, do you? — A. No, sir.
Q. Now, Mr. Knowles — when you were there — was on which side of the
booths? — A. He was on the north side of the booths.
Q. When you were assuming to act as insi)ector, on which side of the booths
were you? — A. On the south side.
Q. So the booths wei-e between you and Mr. Knowles? — -A. Yes, sir.
Q. You couldn't see what Mr. Knowles was doing and he couldn't see what
you were doing? — A. Partially because Mr. Knowles was at the very e>ist corner
of the booth and I was about halfway on the south side.
Q. Do you mean to be understood on this record that when those booths were
up and he was pretty well to the east end, you could »ee? — A. Clear to the eiist
end.
Q. He was not on the east end, was he? — A. No, sir.
Q. You were about halfway up on the other side of the booths, and you want
to be understood on this record that Mr. Knowles was in a position when he
was sitting on that side of the booths that he was on that he could see you
where you were on the other side of the booths? — A. I didn't say so.
Q. Do you want to be understood that way? — A. No, sir.
Q. As a matter of fact, he could not see what you were doing where he was
located and performing his duties as Inspector, could he? — A. I don't know
whether he could or not.
Q. Don't you know that he could not? — A. No, rir; I don't know that he
could not.
Q. Don't you know that it would be impossible for him to? — ^A. No, sir; I
do not.
Q. You could see him, could you? — A. I could partially.
CABNEY VS. SMITH. 369
Q. What do you mean by partially? — ^A. I mean I could see him. I was In
one position all the time and stood up part of the time, and when I did I could
see what he was doing.
Q. You didn't stand up most of the time? — ^A. I couldn't say.
Q. Don't you remember? — A. I stood up part of the time.
Q. What part of the time did you stand up? — A. I couldn't say.
Q. You have no recollection of that have you? — A. I recollect of stnndlni:
part of the time?
Q. How long did you stand up, I ask you; have you any recollection how
long you stood up? — ^A. No, sir.
Q. These booths were what kind of booths — wooden booths or canvas? — ^A.
They were wooden frames covered with canvas.
Q. They had two doors, one on each side of them, didn't they, so the voter
went in from one side and came out when he wanted to deposit his ballot
through another door on the other side of the booths? — ^A. Yes, sir.
Q. They were about how high? — ^A. I should say the top of the booths were 6
feet from the floor.
Q. About 6 feet from the floor? — ^A. Yes, sir.
Q. The doors to those booths had springs on to pull them shut? — ^A. Tea, sir.
Q. So that they were supposed to be shut? — ^A. Yes, sir..
Q. Except when some one passed through? — ^A. Yes, sir.
Q. You couldn't see through those booths, could you, from one side to the
other, unless the doors were open? — ^A. No, sir.
- Q. There were how many booths, did you say? — ^A. Four.
Q. And they were attached one to another? — A. Yes, sir.
Q. The length of the four booths was about what? — ^A. I should say between
12 and 13 feet
Q. So there were 12 or 13 feet between you and Mr. Knowles; that would en?-
tirely obstruct tlie view from one of you to the other? — A. No, sir.
Q. When the doors were shut and you were on one side ^nd he on the other
side of those booths? — ^A. The booths ran the other way; there was but one
booth between Mr. Knowles and I — the booths ran the other way of the room';
Q. You were on the side of those booths, were you not? — A. Yes, sir.
Q. And Mr. Knowles was on the side of the booths? — A. Yes, sir.
Q. And to one end of the row of booths? — ^A. Yes, sir.
Q. And unless you both were, or one of you, put It that way, was at the end
of the booth, or near the end of the booth, so you could look around the end of
the booth and see the other fellow: you couldn't see each other, could you?-^
A. We were at the end all the time.
Q. You were on the side toward the end, but not right at the end? — ^A. Yee,
sir.
Q. Those booths were about how thick — ^how far through? — ^A. A little better
than 3 feet about 2| feet
Q. You were half way up on one side of the booths most of the time, were
you not. performing your duties? — ^A. Yes, sir; about that.
Q. You said this man Towne was In there a couple of times you noticed? —
A. Yes. sir ; he was in there at least once, and, I think, more than once.
Q. If more than once, how many times? — ^A. Well, as I remember It, he was
in and out perhaps two or three times during the morning.
Q. He didn't stay there long?— A. No, sir.
Q. How long did he stay when he came In? — ^A* Perhaps 10 to 15 mlnutea
Q. Then went out? — ^A. Yes, sir.
Q. Then Mr. Barber came down and acted In your place? — ^A. Yes, sir.
Q. You were not there when he went Into the voting place and assumed to
nct?--A. No, sir.
Q. You don't know what he did there? — A. No, sir.
Q. You selected him on your own motion? — ^A. I did. • ^
Q. You went to dinner at what hour that day?— A. About 12.80.
Q. You opened that voting place at what time in the morning? — ^A. Seven
o'clock.
Q. Mr. Knowles went to dinner first? — ^A. Yes, sir.
Q. What time did he go to dinner that day?— About 11.30.
Q. Did he come back before you went to dinner? — A. Yes, sir. r
Q. So that when Mr. Knowles was at dinner that day you handed ballots to
the people who came In and wanted them? — ^A. Yes, sir.
286—13 24
370 CARNEY VS. SMITH.
Q. Then you went to tlie other side of the booths to receive the ballots?—
A. Yes, sir.
Q. So you left the ballots tliat Mr. Knowles had marked on the table where
he placed them, did you? — A. Yes. sir.
Q. Then you went on the other side of the booths and reeeive<l ballots from
the voters and went and dei)o8ited them in the ballot box? — A. Yes, sir.
Q. You put them in the ballot box? — ^A. Yes, sir.
Q. There was nobody in charge of the ballots that were left on this table
when you went over there to deposit ballots in the ballot box, was there?—
A. Nobody sjiecially in charge; no, sir.
Q. You stated Mr. Overmeyer acted as challenger there that day while you
were there? — A. Yes, sir.
Q. And that John (\ Nichols acted?— -V. I said I thought he did a part of the
time; but I am not sure.
Q. Did he have any credentials from the Republican Party that you saw
there that day — written credentials — to act as challenger? — A. No, sir; not
that I saw.
Q. He acted as challenger, if he acted in that capacity, for the Republican
Party? — A. Yes, sir; I suppose so.
Q. You know that to be so? — A. Yes, sir.
Q. Was Mr. Payne acting as challenger? — ^A. Yes, sir.
Q. What was his given name? — ^A. Jim.
Q. Did you see any written credentials that he presented there from the Re-
publican Party to that board to be permitted to act as challenger there that
day? — ^A. Yes, sir.
Q. Whose signature was attached to it? — ^A. I think the chairman of the city
committee, Mr. Boyles.
Q. Mr. Payne went out and his father acted part of the time as chall«iger?—
A. While he went to his dinner.
Q. Did Mr. Payne's father have any credentials from the chairman of the city
committee to act as challenger? — A. No, sir; not that I saw.
Q. You permitted him to act without credentials? — A. Yes, sir.
Q. Mr. Payne's father was also a Republican? — A. Yes, sir.
Q. Did anybody else act as challenger there that day while you were there?—
A. Not that I know of.
Q. John C. Nichols didn't make any claim in your presence that day that he
was a challenger, did he? — A. No, sir.
Q. You are a Republican? — A. Yes, sir.
Q. And have been how many years? — A. Ever since I was a boy.
Q. You have been living In this community how long? — ^A. I lived in the city
22 yeara
Q. When did Mr. Knowles move out of the second ward? — ^A. I think about
six weeks ago; some time the latter part of January or the Ist of February.
Q. Was he living in tlie second ward on the 5th day of November, 1912?—
A. yes, sir.
Q. A married man? — A. Yes, sir.
Q. And was November 5, 1912?— A. Yes, sir.
Q. Had a family and was keeping house? — ^A. Yes, sir.
Redirect examination by Mr. Maynard:
Q. Didn't Mr. Overmeyer have written credentials and present them to you
as a challenger — ^A. 1 didn't see any ; no, sir.
Q. He was known as a Democrat? — A. Yes, sir.
Q. He came there and acted as that all day?— A. Yes, sir; as far as I know.
Q. While you were there?— A. Yes, sir.
Q. As far as you know, he hadn't any written authority to do that? — A.
No, sir.
Q. You accepted his word for it? — A. Yes, sir.
Q. Was there anyone challenged voters while you were ,there? — ^A. No, sir.
Q. As long as you were there nobody called upon any challengers to challenge
any voters? — A. No, sir.
Q. They were all legal voters who presented themselves there while you
were there? — A. Yes, sir.
Recross-examination by Mr. AI^ams :
Q. While Mr. Knowles was out and you were around on the north side of the
booths, the ballots on Mr. Knowles's table were on the other side?— A. Yes, sir.
CARNEY VS. SMITH. 371
Q. So when you passed out those ballots to the voters you got them at the
table where Mr. Knowles left them? — A. Yes, sir.
Q. Then you went around the booths to the ballot box on the other side of
the booths from where you got those ballots to give to the voters? — ^A. Yes, sir.
Q. About where was the ballot box located during that noon hour when Mr.
Knowles was away with respect to the booths: about in the center of the
line?— A. I should say a little to the east of the center.
Q. How much to the east of the center would you say? — A. I should say
peirhaps opposite the second booth from the east.
Redirect examination by Mr. Maynard:
Q. Were those ballots numbered consecutively? — ^A. Yes, sir.
Q. When you imsseil out a ballot to a voter, how^ did you exhibit it to him;
wlmt announcement did you make to the clerks? — ^A. I gave his. name and the
number of the ballot.
Q. What announcement did you make then when they gave it to you? — ^A. I
afterwards announced the name and number of the ballot.
Q. As you received it? — A. Yes, sir.
Q. For what purpose was that announcement made? — ^A. To verify the
clerks' record.
Q. And tell whether the same ballot or not? — ^A. Yes, sir.
Q. Was there any break in the number as you passed around there? — A.
No, sir.
Q. You don't think any man gobbled a handful and run away from there,
do you? — ^A. No, sir.
Q. Neither one nor more? — ^A. No, sir.
Recross-examination by Mr. Adams:
Q. You are sure the ballots were all numbered, each and all? — ^A. Yes, sir.
Q. What number did ^ou begin with? — A. One.
Q. What did you end with? — A. I couldn't say.
Q. What did you end with when you left there? — A. I couldn't say.
Q. You say you looked at the numbers? — A. Yes, sir.
Q. Don't you remember about how many ballots had been folded when you
left?— A. I don*t recollect; no, sir.
0. R. BARBER, being first duly sworn to testify to the truth, the whole
truth, niid nothing but the truth, testified In behalf of the contestee, as fol-
lows :
Direct examination by Mr. Maynard:
Q. Mr. Barber, where do you reside? — A. Second ward, Charlotte.
Q. In the city? — A. Yes, sir.
Q. What is your age? — ^A. I am 34.
Q. Are you a married man? — ^A. I am.
Q. Do you hold any official iwsltion in the city of Charlotte at the present
time?— A. I am alderman from the second ward.
Q. Are you related to the last witness? — A. Ho is my brother-in-law.
Q. Is Mr. Hamilton the husband of your sister? — ^A. Yes. sir.
Q. How far do you live apart in the second ward? — A. The backs of our two
hoiiHes come togetlier.
Q. How long have you lived In the set^ond ward? — A. I have lived there since
the Ist of la. St May.
Q. How long have you lived in the city of Charlotte?— A. This last time I
have lived here about two years.
Q. Where did you live prior to about two years ago?— A. Sault Ste. Marie.
Mifh.
Q. What was your business there?— A. I was in with a hardware company
there.
Q. In what capacity? — A. I was manager of the wholesale end of the busi-
ness.
Q. What firm? — A. The Soo Hardware Co.
Q. How long did you remain with them? — A. I was with them five years.
Q. Did you leave from that place to come here? — A. Yes, sir.
Q. What inducement did you have to come here? What job did you obtain
here?
Mr. Adams. Objected to as irrelevant and immaterial,
A. I came here to go into the hardware business^wlth my father
372 CABNEY VS. SMITH.
•
• -Qi Tbey didn't discharge you up there, then? — ^A. No, sir.
Q. .Did you ever live here before you went to the Soo? — ^A. Yea, sir.
' ^ Q. flow long? — 'A. About 25 years; I couldn't tell you exactly.
Q. Are^vou a graduate of our schools here?
Mr. Adams. Objected to as incompetent, irrelevant and immaterial.
A. Yes, sir.
Q. Were you present at the genera I election held in the second ward on
the 5th dny of November, 1912? — A. I was part of the time.
Q. What part of the day were you there? — ^A. Well, I was there twice; I
was there to vote in the morning and was there in the afternoon.
Q. What time did you vote in the moniing? — A. Well, I couldn't tdl you
that; it must have been somewhere along 9 or 10 o'clock, I think.
Q. Did you return to. the polls again? — A. I did.
Q. Were y(Ai here when Mr. Hamilton gave his testimony? — ^A. I heard part
of it, not all of it.
Q. About what time did you go to the polls? — ^A. About 1 o'clock in the
afternoon.
Q. Did yon Pee Mr. Hamilton before you came to the polls? — ^A. Yes, sir.
'Q. Whereabouts? — A. At his home.
Q. Did he make any request of you there? — ^A. He requested me to go to
the polls aiid take his place.
' Q*. Did he give you any reason for it? — A. He said he was ill.
Q. Did you go right down? — A. I did within a few minutes.
Q. Had you been to dinner when you saw him? — ^A. I think I was at dinner
at the time I was called.
Q. You think it was about 1 o'clock or nearly that when you came down?— A.
It was not more than a few minutes either way.
Q. What did you do after you got down to the polls? — A. I went to where Mr.
Knowles was and asked him what he wanted of me.
Q. Was he in charge of the polls? — ^A. Yes, sir.
Q. Was therie any oath administered to you? — ^A. Yes, sir.
Q. By whom? — A. By Mr. Knowles.
Q. He was one of the aldermen? — ^A. Yes, sir.
Q. What did you do then? — ^A. He sent me over on the south side where the
ballot box was to receive ballots as voters came In through the booths.
Q. Did you commence to i)erform that duty? — ^A. Yes, sir.
Q. Kow long did you ct^ntinue it? — ^A. Until the polls closed.
• Q. Did you absent yourself from the polls at any time tliat afternoon? — ^A. I
did.
Q. Who was in charge when you left? — ^A. Mr. Knowles.
Q. Where did you go, to the urinal? — A. I went for a lunch a little before
5 o'clock?
Q. Who was in charge? — A. Mr. Knowles.
Q. Were you there when the polls closed? — ^A. Yes, sir.
Q. What time did the polls close? — ^A. At 6 o'clock.
Q. When the polls closed what did they do? — A. Do, you mean the booths?
Q. Yes. — ^A. WeH, we shoved the booths to the south side of the inclosure,
1 believe, and we brought in a table, or had it brought in, and proceeded to
open the box and count the ballots.
Q. Who were present? — A. Well, there were present the two inspectors, Mr.
Knowles and myself; and the two clerks, Mr. Preston and Mr. Guide; and the
two gatekeepei-s, Mr. Rouse and Mr. Rogers ; and, I believe, a few people out-
side of the inclosure.
Q. Did you see Mr. Towne there at that time? — ^A. I couldn't say I did at that
time.
Q. Did you at any time during the evening? — ^A. Yes, sir.
Q. What was done with the ballots that were not voted? — A. They were
lying on one of the tables ; we had two or three tables in there.
Q. Do you know what was finally done with them? — A. My recollection Is that
they were rolle<l up and tied with a piece of string and put in the box.
Q. Rolled?— A. Yes, sir; rolled.
Q. Do you know whether that was before you completed the count or uot? —
A. I think It was after.
Q. Now, witness, how did you conduct that count; what did you do first
there? — A. The first thing we did was to divide them, into straight tickets
and split tickets — into Republican .straights and Democratic straights and so on.
according to the party.
CABKEY VS. SMITH. 37S
Q. How did you determine the Republican straight tickets? — ^A. If there was
no mark on the ballot, except a blue pencil mark in the circle under the Re-
publican head^'we called it a Republican straight ticket
Q. If there was a mark on any candidate what did you call it? — A. A split
ticket
Q. That is, if marked at the head of the Republican ticket and any official
marked off, you called that a Republican split ticket? — ^A. If there was a mark
at the head of the Republican ticket and a mark before a candidate's name on
any ticket we called it a split.
Q. It was only a straight ballot all around that you called a straight ticket
there — either party? — ^A. If it had no marks on it we called it a straight ticket
Q. When you got them separated, for instance, the Republican straight
tickets into one pile and the Republican splits into another and the Democratic
straight tickets in one pile and the Democratic split tickets into another heap,
what did you do? — A. We counted the straight tickets.
Q. And gave what? Who did you give credit to when you counted the Re-
publican straights; what did you do with the amount? — ^A. They were given to
the clerks and tallied on the tally sheet
Q. There was given to each candidate on the Republican ticket credit for
those? — A. For the number we had.
Q. Then did you count the Republican splits and ascertain the number of
them and give them to the clerks? — A. I don't know whether we counted the
Bepublican splits immediately after.
Q. I mean taking the Republican ticket. I am dealing with that alone. Was
that done at some time? — A. Yes, sir.
Q. Then did you do that with the Democratic ticket-^treat them in the same
way?— A. Yes, sir. .
Q. And each party ticket the same way? — A. Yes,* sir.
Q. When you got ready to read the split tickets each candidate upon the
Republican ticket had credit for all the Republican votes that were cast there,
straight or split?
Mr. Adams. I object to that as leading. The questions are all leading, sub-
stantially asking the witness to say yes or no, and I object to that mode of
examining the witness, to this question, and the jeading questions given before.
A. As far as I know.
Q. Were they announced to the clerk? — A. Yes, sir.
Q. Did each candidate on the Democratic ticket have credited to him his
total straight and split Democratic tickets? — A. As far as I know, he did.
Q. You announced them? — A. Yes, sir.
Q. Was that done with each candidate in the same way? — A. Yes, sir.
Q. Then what did you proceed to do? — ^A. Do I understand that question
after all the ballots were counted and called to the clerks?
Q. Yes. — A. I believe then, or during that time, we had counted and called
the number of ballots on the constitutional amendments and the woman-suf-
frage question.
Q. Did you read the 85)1 it tickets? — A. They were read; yes, sir.
Q. Who read them? — ^A. Mr. Knowles.
Q. Did anybody else read? — A. I think not; I have no jecollection of anyone
else reading.
Q. He read them all? — A. I think so.
Q. Was there anyone there during the reading of those split tickets that ex-
amined or looked over or kept watch as to whether they were read correctly or
not?
Mr. Adaus. I object to that as calling for the conclusion of the witness and
as incompetent.
Q. Or who had the opjwrtunity to watch?
Mr. Adams. He may have had an opportunity; it depends upon where he
was. I have no objection to his telling what was done, but to draw his con-
clusions I object to on the ground that it is incompetent and calling for the con-
elusion of the witness and not for the facts. What occurred there and what
was said?
(I^ist question read.)
A. Well, besides myself? I watched It, for one, and there were others inside
of the railing.
• Q. Who?— A. All the time or part of the time?
Q. Was Mr. Towne there some of the time? — ^A. He was there., part .of
the time. . . / .
374 CARNEY VS. SMITH.
Q. Was there anyone else there? — ^A. Mr. Nichols and Mr. Ovenneyer; that is
all I happen to think of.
Q. Did you hear John C. Nichols say anything at>out the count of any of the
ballots or raise any objection in any way as to how the ballots shoi^d he
counted? — A. I heard him object once to a ballot as Mr. Knowles called it
Q. Do you remember what it was? — A. I remember what office it was, it was
on the office of circuit court commissioner.
Q. That is the office he was running for? — A. Yes, sir.
Q. What was the oljjection to it? — A. I don't remember the details, I think
I was not looking at the sheet at that time, but I know he said they were giving
him a ballot that he was not entitled to.
Q. He was running for the office of circuit court commissioner? — A. Yes, sir.
Q. Do you remember how that arose, what was there about it? — A. It arose
from the fact that there were two or three candidates on the Republican ticket
for the office, and I think only one on the Democratic ticket.
Q. He was not seeking to have that vote counted for him. you say?
Mr. Adams. I object to that as calling for the conclusion of the witness and
as incompetent and not for what was said.
Q. State all you heard him say in respect to it. — A. Well, I couldn't state
what his words were, but I know he called attention to the fact that it occurred
to him anyway that it was not called correctly, and they were giving him a
vote which he was not eutitletl to.
Q. Now, witness, during that whole evening did you hear Mr. Nichols say
anything respecting the canvass or the count for Members of C^ongress of the
third congressional district?— A. I have no recollection of anything.
Q. Did you hear him make any effort to try to influence the count of a vote
for that office?
Mr. Adams. I object to that as calling for the conclusion of the witness and
not for any conversation or anything that was done, and it is incompetent.
A. I have no recollection of anything of the kind.
Q. I show you Exhibit 20 and call your attention to page 16, read that
certificate on that page.
A. (Reading:)
State of Michigan, County of Eaton, ss:
We do hereby certify that the foregoing is a correct statement of the votes
given in the second ward of the city of Charlotte, county of Eaton, State of
Michigan, at the general election held on Tuesday the 5th day of November,
A. D. 1912.
In witness whereof we have hereunto set our hands, in said county and State,
this 5th day of November, A. D. 1912.
C. R. Barber,
C. S. Knowles,
Inspectors of Election.
Q. Is that your signature there? — A. Yes, sir; It looks like It, anyway.
Q. Don't you know whether it is or not?— A. I should call that my signature;
yes, sir.
Q. Was this signed that night? — A. Yes, sir.
Q. After you went up there on the post as inspector at this election on the
5th of November do you know of any person being assisted in marking his
ballot or having his ballot marked for him? — A. No, sir.
Q. Who were the clerks of that election? — A. Herman Guide and Roy
Preston.
Q. In reading off those ballots were there any votes omitted which were
cast for Claude S. Carney? — A. Not that I know of.
Q. In reading those ballots were any ballots read for John M. C. Smith
which did not appear on the ballots in his favor? — A. Not that I know of.
Q. When tho.«?e ballots were being rend, when the name of John M. C. Smith,
for instance, was announced as plus John M. C. Smith for Congress, was that
given in a loud voice?
Mr. Adams. I object to the question as leading and suggestive.
A. Yes, sir.
Q. What did the clerks announce, what did you hear them announce?— A.
The clerks would call back whatever had been called to them.
Q. Both of them?— A. No, sir; one of them. I think Mr. Preston did, as I
remember.
Q. Were the two keeping tally?— A. Yes, sir.
CARNEY VS. SMITH. 375
Q. When they were reading those ballots and when a minus for John M. G.
Smith would come, that would mean a vote against him on the Ji^epubl lean
ticket, would it not?
Mr. Adams. I object to that as leading, and I take an exception to counsel
putting those leading questions. He has been doing it right along and is now
Rugsesting the facts he wants to show, and I take an exception to this mode of
examination as not being in accordance with the rules of evidence and is
incompetent, irrelevant, and immaterial. It is deliberately done, apparently,
because I have taken an objection and an exception time and again, but counsel
continues the same course with the witnesa
Q. What was the minus sign following any of these candidates; how did
that come there?
Mr. Adams. I object to counsel assuming that there was any minus sign;
there is no evidence of it as far as this witness is concerned, and it is leading
and incompetent and an unfair examination.
A. Well, any candidate on the Republican ticket voted against on that
ticket, there would be a minus sign after that candidate.
Q. Did any voter ask you for assistance there that day, or for any explana-
tion about casting his ballot? — ^A. No, sir.
Q. I will ask you whether or not you heard at any time during that day at
that election any electioneering going on in the voting place? — A. I did not.
Q. I will ask you whether or not you heard anyone that day in the voting
place urge any voter to vote for any particular candidate for any office? — ^A.
I did not ; no, sir.
Q. Did you see John M. C. Smith, candidate for Representative in Congress,
at that election on that day, present there during the day? — A. No. sir.
Cross-examination by Mr. Adams:
Q. Was John M. C. Smith in Charlotte that day?— A. I don't know.
Q. Did you see him in Charlotte? — ^A. I have no recollection of seeing him
that day at all.
Q. Did you see him the day before? — A. I don*t remember that I did.
Q. Did you see him the day after election? — A. Not that I remember of.
Q. You haven't any remembrance of that at all? — A. No. sir.
Q. You might have seen him, but you don't remember it? — A. Yes. sir.
Q. I call your attention to Exhibit 25, tally sheet book of the general election
held November 5, 1912, second ward, city of Charlotte, especially to pages 12
and 13 thereof, and on those pages specially I call your attention to what ap-
pears on that book with reference to Representatives in Congress; there are
opposite the names of John M. C. Smith and Claude S. Carney some strokes
or marks, are there not? — A. Yes, sir.
Q. Now, those are little black strokes made with ink in each instance, about
a quarter of an inch long? — ^A. Yes, sir; they are.
Q. There are four of those strokes, and then there is one stroke about the
same length across the four to indicate evidently that there were five votes
wherever that appears there? — ^A. Yes. sir.
Q. There are numerous little squares where those strokes are made, apd in
the various squares on this page there is no stroke across? — A. No.
Q. Now, I wish you would examine that; you have pretty good eyes? — A.
Yes, sir.
Q. You don't have to use glasses, do you? — A. No, sir.
Q. I want to have you examine that now and tell me whether you can see
there any Indication of a plus sign or a minus sign opposite the names of
John M. C. Smith and Claude S. Carney. — A. Do you mean plus and minus
characters?
0 Yos. sir. — A. Xo. sir: I don't see any.
0- Tlierp is no indicntion on there that there hjis ever been on those pages
of the hook f^ny pins or minus signs there where the nnnies of John M. C. Smith
and Claude S. Carney appear, is there? — A. I can't see any indication of those
chn rectors ever having been there.
Q. Did you sisrn any oath that day before or after you assumed to perform
the duties of inspector in that ward?
Mr. Maynabd. T object to that as incompetent, irrelevant, and immaterial,
and not required by the laws of the State of Michigan.
A. I believe I did.
Q. What did you sign it on? — A. T couldn't tell you now: I don't remember.
Q. On some book? — ^A. I said I didn't remember.
376 CARNEY VS. SMITH.
. Q. Don't you. now, to refresh your recollection, recall that you did sign such
rin oath on' some election book that you had there? — A. I believe that I signed
^ch an oath; yes. sir.
^ Q. On some book? — A. I presume it was on a book, but I don't know.
Q. Now» I suppose you saw the certificate or oath that Claude S. Knowles
signed there while you were in that election that day. did you? — A. I may have
seen it.
Q. Do you recall whether you did? — ^A. No. sir; I do not.
Q. I suppose that you saw the same oath that Mr. Hamilton signed that
day? — A. I have no recollection of seeing It.
Q. Your initials are C. R.? — A. Yes, sir.
Q. Who swore you — who administered the oath to you? — ^A. My memory la
that Mr. Knowles did.
Q. Did he swear yon as soon as you got there — went there, I mean, to tnke
Mr. Hamilton's place, before you did anything? — ^A. My memory of It Is that
he did.
- Q. Do-.you remember what the form of the oath was that he administered to
you? — A. I don't remenil)er it: no. sir.
Q. Did he ask you to hold up your right hand? — A, I believe he did.
Q. And you did? — A. Ye.s. sir. I know something about the form of the oath,
but I don't rememl>er it from that day particularly.
Q. Where- was Mr. Knowles standing when he administered the oath to
you? — A. As I remember it, he was on the north side of the booths,, near the
table he 'was using — ^j>erhaps seated at the table.
Q. How' close did you stand to him when he administered the oath?— A. 1
couldn't tell you.
Q. You didn't take any oath before Mr. Knowles at all? — ^A. I said accord-
ing to my memory t did.
Q. You have a pretty good recollection? — A. Ordinarily good, I guess.
Q. I show you Exhibit 15 and call your attention to page 2, and ask yon
w^hether to that second certificate thMt is your signature? — A. Yes. sir.
Q. I notice you were sworn before Fi'ank Towne? — A. Yes, sir.
Q. You were not sworn before Mr. Knowles. then? — A. I believe I said I
thought I was, according to my memory; I don't think I said I was positively.
Q. Yoii were mistaken about that, were you not? — A. Yes, sir.
Q. I notice that you didn*t sign the certificate of the inspectors to this poll
book. No. 15; you don't find your name there on page 16 of that exhibit, do
you?— A. No. sir: I do not.
Q. Under that certificate?— A. No, sir.
Q. The only man's name that appears there to that certificate is Claude
Knowles? — A. That Is the only man there.
Q. What time did you get through with your work there on that board that
day?— A. Something after 10 o'clock.
Q. At night?— A. Between 10 and 10.30.
Q. At night? — A. Yes, sir.
Q. Did yon stay there until it was entirely completed? — A. I did.
Q. What was done with the ballot .box or boxes?— A. When we left them?
When we were through counting?
Q. Yes, sir. — A. We left them at the polling place when I went away.
Q. Who went away? — A. The en* ire board.
Q. You Just left the ballot boxes right there?— A. Yes, sir.
Q. In the public corridors ot tl>e courthouse?— A. Yes, sir.
Q. You don't know what became of them after that, do you, that night?—
A. Yes, sir; I know what became of them. I am satisfied in m3' own mind. I
can't swear what became of them; no.
Q. I am asking for your knowledge. — A. All right.
Q. The entire board went away. and left the ballot boxes there in the public
corridors of the courthouse? — A. Yes, sir.
Q. How many ballot boxes, by the way, did you have there that day?—
A. Two.
Q. Any more? — A. I saw no more.
Q. One of those ballot boxes you. used to deposit in while you were there the
ballots for the difl'erent candidates for the various offices? — A. Yes, sir.
Q. The other ballot box yon used for depositing votes on the amendments
and woman suffrage? — A. Yes, sir.
Q. You only used one box during all the time you were there for putting
the ballots In for the different candidates? — A. That Is all.
CABNEY VS. SMITH. 377
Q. You had there that day 310 votes In that ballot box in which you put the
ballots for the differ&it candidates, did you? — ^A. I couldn't tell.
Q. I will show you this same Exhibit 15 and ask you whether now. after
looking at that exhibit to refresh your recollection, it is not a fact that there
WCTe 310 votes put in that ballot box for candidaes for office? — ^A. Yes, sir;
apparently.
Q. I am showing you the poll book. — ^A. Yes, sir.
Q. That you used there that day. — ^A. Yes, sir.
Q. IMdn't you record on that book all the ballots that were voted there and
went into that ballot box for the candidates in office? — A. Yes, sir.
Q. Well, now, after looking at tbat, is it not a fact that there were 310 votes
cast there that day and put into that ballot box? — ^A. Yes, sir.
Q. Is it not a fact that you when you counted you counted 310, and that you
foand 310 ballots for candidates for office in the ballot box? — ^A. I know that
the number containe<l in the ballot was correct and agreed with the num-
ber of tb^ ballots.
. Q. As a matter of fact, you only had 309 in the ballot box, didn't you? —
A. That I couldn't say.
Q. Look right there at your returns and see whether that is not true? —
A. Yes, sir; that is right.
Q. So that the returns that were made out there that night show that the
whole number of votes cast according to the \)o\\- list was 310; that is shown by
the returns. Is it not? Look at page 16. — A. Well
Q. (Interrupting.) Well. now. wait a minute. I say that Exhibit 16, which
is the poll book of the votes cast in that precinct that you put in that day,
shows that the whole number of votes cast according to the poll list was 310.
Does it not show that there before you? — A. The total number of votes cast
according to the poll list was 310.
Q. It shows, on page 16 of Exhibit 15, that the whole number of ballots
counted on opening the ballot box was 309? — A. Yes, sir.
Q. It shows, on the same page of that stime exhibit, that the whole number
of b'tllots in excess of tlie number of electors voting jnui destroyeil was 1? —
A. That is what It says; yes, sir.
Q. And that was one of the returns that your board made to either the Judge
of probate or county clerk and signed It? — ^A. Yes, sir.
Q. That is the same exhibit on which your certificate or your oath appears
which you say you signed, isn't It? — ^A. Yes, sir.
Q. When you got through with counting the vote what was the next thing
yoa did there that night. If you can renieni!)erV — A. I think it was to total the
various books that were to be handed In — the statement books, and so on, and
«lgn them and put them In the proper enveloi>es and s»pal them.
Q. Did you read off there the number of votes for any of the candUlaten that
you found claimed to have been cast that day while you were there? — A. D!(l we
read them off?
Q. Yes. sir. — A. Yes, sir.
Q, Publicly?— A. Yes. sir.
Q. Who read them? — A. One of the clerks; I can't tell which one; perhaps
both.
Q. You say that no voter asked for any Instructions? — A. That Is what I'
said; yes, sir.
Q. At any time? — A. Yes, sir.
Q. You were on one side of the booths when you were acting as ln8|)ector
and Mr. Knowles was on the opposite si.de of those booths? — A. He was on the
north side and I was on the south aide.
Q. So the booths were between you? — A. Yes, sir.
Q. You stated that you didn't know of anybody calling for assistance there
that day while you were there? — A. I don't remember of saying that; It is
true, anyway.
Q. That is, you say It is true that you have no recollection of any voter hav-
ing been in any way assisted? — A. I have no such recollection.
Q. That is. by assistance what do you nio:»nV — A. By assistance some help In
marking his ballot.
Q. Do you mean In going into the booth with him or outside of the booth? —
A. Assistance. I think, would be In the booth.
Q. Do you know. then, of any assistance having been given to any voter there
that day outside of the l)ooths? — A. Xo. sir; I do not.
378 CARNEY VS. SMITH.
Q. Did any voter there that day ask how to mark his ballot? — A. Not In my
presence.
Q. That might have been done on the other side of the booths and you
conldn't hear it where you were? — A. Well, that would depend upon the voice.
Q. I suppose sometimes there were quite a few in there at one time around
there? — A. Yes, sir.
Q. Sometimes were not the booths full — I mean a man in each booth ?^A.
Yes, sir; probably.
Q. While others were waiting to get into the lM>oths to vote? — A. I think
l>robably there were.
Q. Is not that your recollection that that did occur there several times during
that day? — A. No, 8ir; my recollection is that we were not crowded for booths
at all.
Q. Your recollection is that at no time were the booths all occupied? — ^A. I
couldn't say whether there were four men in or not at one time.
Q. I supi)ose there were some people standing around there occasionally dar-
ing the afternoon up to the tiiue the polls closed who were not voting? — ^A.
Yes, sir.
Q. Mr. Towne was there awhile after you began counting? — ^A. Yes, sir. I
remember of his being there.
Q. What did you do when Mr. Knowles read off the ballots? — A. Well, part
of the time, in fact most of the time, I was watching over his shoulder.
Q. The rest of the time when you were not watching over his shoulder?—
A. I think perhaps he started to call those before the ballots had all been
sorted and I finished sorting th« ballots.
Q. So you were sorting ballots for awhile while Mr. Knowles was calling
off from the ballots to the clerks of the election? — A. YeB, sir.
Q. It took you quite a while to sort those ballots? — A. Not very long.
Q. How long? — A. Perhaps just a few moments.
Q. Five minutes? — A. Yes. perhaps, and perhaps longer; I couldn't tell you
exactly.
Q. You had to sort over three hundred and some ballots ^A. (Interrupting).
They were partly sorted when I began to count
Q. Well, you didn't watch the count called off until you had them all sorted-
out, did you? — A. No. sir: I think not.
Q. You sorted a few. then he began calling off, and while he was calling off
you sorted some more? — A. Finished sorting.
Q. Now, you didn't keep any of the tallies, did you? — A. No, sir.
Q. Of course, you don't know just what was put down on the tally books of
your own knowledge? — A. No. sir : not from my own knowledge.
Q. If you h;Kl ;i ticket marked at the head of the liepublican column and you
also had on that same ballot a mark for some particular candidate on the
Republican ticket, what did you do with the ballot? — A. I can't remember that
we had any such ballots.
Q. If you did have, what did you do with it? — A. I don't recall that we
had any.
Q. If you did, what did you call it'i — A. I presume a Republican split.
Q. You stated that John C. Nichols stated once that you were giving him a
ballot that he was not entitled to? — A. Yes, sir; that is what he said.
Q. Did you give it to him?— A. I think not.
Q. Is it not a fact that you did give it to him? — A. I think not
Q. Now, I ask you for the puri)ose of refreshing your recollection whether
that very ballot was not given to John C. Nichols? — A. I think not; that is
my recollection of It now.
Q. Mr. Nichols was around there all the afternoon while you were there?—
A. No, sir; I don't think he was all the afternoon.
Q. He was there in the evening? — A. Part of tlie time.
Q. He was there part of the afternoon? — A. I don't remember of seeing him
there in the afternoon at all.
Q. Was he there about 1 o'clock? — A. About 1 o'clock?
Q. Didn't you see John C. Nichols there at any time up to the time the polls
closed? — A. I have no recollection of seeing him.
Q. That is as strong as you want to put it? — A. Well, I might have seen
him, but I don't remember of seeing him.
Q. When you got through at night, what did you do with the election re-
turns and books? — A. We sealed them in the envelopes.
Q. Well, did you see them sealed? — ^A. I did.
CABNEY VS. SMITH. 379
Q*. How many envelopes did you have sealed? — A. Two, I think.
Q. What did you put in the one to the county clerk? The envelope addressed
to the county derk; was not one of them addressed to the county clerk? — A.
yes, sir.
Q. What did you put In that one? — ^A. I could not state from my own knowl-
edge what was put in that; I didn't put It in.
Q. Did you have one addressed to the board of county canvassers in care of
tlie judge of probate or register of probate? — A. I believe we did; yes, sir.
Q. What did you put in that envelope? — A. That I didn't put in.
Q. Did you seal that one up? — A. Yes, sir.
Q. Who sealed it? — ^A. I couldn't tell you who handled the seal.
Q. Who took those returns when you went away from there? — A. I took the
returns to the county clerk's office.
Q. That is, you took the envelope addressed to the county clerk and the en-
velope addressed to the board of county canvassers in care of the judge of
probate or register in probate? — A. No, sir; I took the envelope to the county
clerk to the county clerk's office.
Q. What did you do with the other one? — A. I left it with the ballot box.
Q. The ballot box and those returns you left in the public corridor of the
courthouse when your board went away?— A. Yes, sir; when I went away.
Q. When you went away the board went away, is that true? — ^A. I don't
know whether we all walked out together, we all left about the same time.
Q. What did you put in the ballot box, if anything, that night? — A. We put
the ballots back In the box.
Q. What ballots? — A. All that had been cast and those that had not been east.
Q. Was it sealed? — A. It was sealed.
Q. How was It sealed? — A. Locked and a strip of canvas put over it and a
seal put on it.
Q. Who locked it? — A. I don't know, I think Mr. Knowles did.
Q. What was done with the key? — A. I presume he took it.
Q. Do you know? — ^A. I don't know.
Q. You* said you went away once during the afternoon before T) o'clock to
get some lunch?— A. Shortly before the polls closed.
Q. How long were you gone? — A. About 10 minutes.
Q. No longer? — ^A. Might have been a little longer, very close to that.
Q. Where did you go, to a restaurant? — A. To a little restaurant just east
of the Phoenix House.
Q. That is about a block from the voting place? — A. Leas than half a block,
I think.
Q. The courthouse stands in the center of the block? — ^A. A half a block or
such a matter.
Q. The courthouse stands In the middle of the block, and there Is a wide
public street between the courthou.se and the Phoenix House, and the restaurant
is next to the Phoenix House on another street than the one that runs between
the courthouse and the Phoenix House? — A. Yes, sir.
Q. How far from the corner where the Phoenix House is is it to the restau-
rant where you went? — A. The next door.
Q. Did Mr. Knowles go away from the voting place that afternoon?— A. He
. did ; yes, sir.
Q. What time did he go away?— A. A few minutes before I did.
Q. How long was he gone? — A. Ten or fifteen minutes, perhaps.
Q. When he was away I suppose you handed out ballots and deposited
them?— A. I think there were no ballots cast during the time he was gone.
I have no recollection of any.
Q. You saw Mr. Hamilton at his home before you came down to act as in-
spector that day?— A. Yes, sir.
Q. Was at your home that you first got information from him that he wanted
j'ou to act for him?— A. He telephoned to my house in the first place, and I
went over to see him.
Q. You were not selected by the voters down there in this polling place that
dav to act as inspector? — ^A. I don't know.
Q. There was no vote, no motion made there by any of the voters who hap-
pened to be present there at the time when you were there, that you act as one
of the inspectors of that election; you didn't hear anything of that kind?— A.
I heard nothing of that kind.
380 GABNEY VS. SMITH.
Q. When you went there to the voting place you were sworn right In and
began to act? — A. I began to act at once; yes sir.
Q. You are a Republican in politics? — A. Yes, sir.
Q. On November 5, 1912?— A. Yes, sir.
Q. Have always been a Republican? — ^A. Yes, sir.
Q. When Mr. Knowles went away for lunch that afternoon I suppose there
were some ballots that had been initialed on that table where they had been
passed out from that day? — ^A. Yes, sir.
Q. When you got back there what did you say you did? What did you begin
to do when you first went there, I mean? — ^A. I went around and asked Mr.
Knowles
Q. (Interrupting.) I didn't ask you about that, but what did you begin to
do in the way of performing your duties? — ^A. I went on the south side of the
booths to receive the ballots.
Q. Did you receive ballots in the afternoon up to the time the polls closed? —
A. Except for a few minutes I was away.
Q. Mr. Knowles, then, I suppose, was on the other side of the t>ooths passiiiK
out the ballots to the voters? — ^A. Yes, sir.
Q. And you took them and deposited them in the ballot box? — A. Yes. sir.
Q. That Is what you did there, up to the time the polls closed, was to receive
ballots and put them In the ballot box? — ^A. Yes. sir.
Q. What kind of a ballot box was that In which you put the votes for the
different candidates: describe it? — ^A. It was a wooden box, probably 28 or 30
inches high and perhaps 12 or 14 inches square.
Q. Who opened it up when you began the count? A. I don't i-emember.
Q. Did you notice how full it was?— A. I don't think I noticed how full it
was, but I knew beforehand how full it was.
Q. It had no rollers where the slot was? — A. No, sir.
Q. You got the ballots in there — all that were voted that day? — ^A. Yes. sir.
Q. The ballots, as you understand it, were all of the same kind that were
used In the county of Eaton, as far as you know? — ^A. As far as I know.
Q. You un'derstood they were the official ballots handed out? — ^A. Yes, sir.
Q. Printed by official authority and handed out to the different voting pre-
cincts in this county? — A. Yes, sir.
Q. For that election? — ^A. Yes, sir.
Redirect examination by Mr. Matnaru:
Q. I call your attention to Exhibit 25, page 12, opposite the names of Repre-
sentatives in Congress and opiwslte the title you find the name of John M. C.
Smith under the title "Candidates' names*'; what is the color of the line on
which his name is written? — A. Red.
Q. Now, above that is there a large blue line, a strong blue line across the
page? — A. Yes, sir.
Q. Between that red line and blue line is there a faint blue line running from
the candidates' names to the right of the column that is headed "Total straight
votes " ?— A. Yes, sir.
Q. T.'ndfr the head of " Total straight votes." opposite the name of John
M. O. Smith, what number do you find? — A. Sixty-five.
Q. He was creditcnl with 65 total straight Republican votes on that record? —
A. Yes, sir.
Q. Opposite his name, under the heading ** Total jq^lit votes," how many do
you find?— A. Fifty-nine.
Q. Now. you stated on your direct examination that when they kept the tally
of the split votes they put the minus number on the under side of this faint blue
line and they put the plus on top of the blue line. Now, taking that, just add
together the total straight votes given John M. C. Smith, 65, and the total split
votes — what do they amount to?
Mr. Adams. I object to counsel seating that the witness has not testified
to as Incompetent, Irrelevant, and immaterial.
Q. What do those two numbers amount to? — A. One hundred and twenty-
four.
Q. That is, the total straight and split Republican votes amount to 124? —
A. Yes. sir.
Q. For John M. C. Smith?— A. Yes, sir.
Q. Now, take the vote for Representative In Congress at Large, opposite the
name of Patrick H. Kelly, how many total straight Republican votes and split
Votes were given him?
CARNEY VS. SMITH. 381
Mr. Adams. Objected to as incpmpeteut, irrelevant, and immaterial.
The Witness. One hundred and twenty-four.
Q. Take the office of Justice of the supreme court for the term ending De-
cember 31. Franz C. Kuhn, what are the total straight and split votes given
to him?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
The Witness. One hundred and twenty-four.
Q. Look through this book, from the banning, and see whether that was the
number of straight and split votes which were given to each man upon the
Republican ticket for every office.
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial..
Q. Sixty-five straights and 59 splits? — A. Yes, sir; I think so.
Q. Go on through the book and give each office. For governor, how many,
or the electors first? — ^A. Each elector was given a total of 124. ♦
Q. Sixty-five straights and 59 splits? — ^A. Yes, sir. Governor, 65 straights
and 59 splits, tobil 124 : lieutenant governor, 65 straights and 59 splits, total
124: Fred C. Martiiidale. 65 straights and 50 splits, total 124; State treas-
urer, 65 straights and 50 si)lits. total 124; auditor general, 65 straights and
59 splits, total 124; attorney general, 65 straights and 59 splits, total 124; com-
missioner of the land office, 65 straights and 59 splits, total 124; justice of the
supreme court, 65 straights and 59 splits, to^al 124 ; State senator, 65 straights
and 59 splits, total 124; representative in the State legislature, 65 straights
and 59 splits, total 124; judge of probate, 65 straights and 59 splits, total 124;
sheriff. 65 straights and 59 splits, total 124. The same figures are shown for
county clerk, county treasurer, register of deeds, prosecuting attorney, circuit-
court commissioners and coroners.
Q. Now, take the Democratic ticket, all the officers were credited up in the
first place wi^h how many straights? — ^A. Forty-el^ht.
Q. How many splits? — A. Sixty-four.
Q. Look through and see whether that was done with all the offices. — A. Yes,
sir.
Q. On the Democratic ticket? — ^A. Yes, sir.
Q. Was each ticket on that big ballot treated in the same way? — ^A. Yes, sir.
Q. Now, return to the office of Representative in Congress, and I will ask
you whether it appears from this book that In the first instance each candidate
for Representative in Ongress was credited with the total straights and total
splits? — ^A. Yes, sir.
Q. John M. C. Smith gets how many? — A. One hundred and twenty-four.
Q. How many for Claude S. Carney ? — A. One hundred and twelve.
Q. They start in that way. Now. on this under line front of John M. C.
Smith's name how many minuses appear there?
Mr. Adams. I object to that as Incompetent and assuming something that the
book does not show at all ; there are no minuses there.
The Witness. Eight.
Q. Those are the tallies on the under side of the blue line? — A. Yes, sir.
Q. If there were that many minuses, how many would that leave at that
point? — A. One hundred and sixteen.
Q. How many pluses appear on the upper side of that line?
Mr. Adams. I object to that as incompetent, something that the witness has
not testified to and that the return that the witness is referring to does not
show.
The Witness. Forty-five.
Q. Adding that to what would be referred to as minus, how many .does it
make? — A. One hundred and sixty-one.
Q. Is that the total number of votes received opposite his name? — A. Yes, sir.
Q. Claude S. Carney was given credit in the first place for 112? — A. Yes. sir.
Q. How many minuses were there?
Mr. Adams. There is no showing there are any minuses or anything on the
return that the witness Is reading from to show that there are any such, and
it is incomx>etent, irrelevant, and immaterial and calling for the conclusion of
the witness and speculative.
The Witness. Twenty.
Q. You take that from 112, and it leaves how many? — ^A. Ninety-two.
Q. How many pluses?
Mr. Adams. I object to that as incompetent, " irrelevant, and immaterlfil and
the conclusion of the witness; there is nothing on the record to show there are
any pluses.
382 CABNEY VS. SMITH.
Q. How many would it make? — A. Fifteen pluses would make a total of 107.
Q. I8 that wbat he Is credited with on the record? — A. Yes, sir.
Q. Is there any other combination that you can make out of those figures
other than you have just given? — ^A. Not that I know of.
Q. Now, Witness, I hand you Exhibit 26, page 7, under the heading " Whole
number of votes given for the office of Representative in Congress." I ask you
to read.
Mr. Adams. That is already In.
Mr. Maynard. I understand that is already In.
Q. This book you have been reading from, what is it? — ^A. The tally sheet
Q. Of what? — A. Of the general election held on Tuesday, the 5th day of
November, 1912, second ward, city of Charlotte, county of Eaton, Mich.
Q. After that tally sheet was made up and after the ballots were read, did
you then prepare this statement? — A. Yes, sir.
Q. In this exhibit 26, on page 7, what do you find under the names for Rep-
resenbitive for Congress; under the candidates' names whose names do you
first see?— A. John M. C. Smith's.
Q. Opposite his name, written out in w'ords, what do you find? — A. One hun-
dred and sixty-one.
Q. After that, in figures, what? — A. One hundred and sixty-one.
Q. Does that comimre with the tallies and the figures in the tally-sheet book?
Mr. Adams. I object to that as incompetent.
Q. How do they compare?
Mr. Adams. I object to that as incompetent; the book shows for itself, and
the contents are already in.
The Witness. The figures are correct in both books.
Q. How are the words? — A. The words are the same as the figures.
Q. Claude S. Carney, what do you find opposite his name? — A. One hundred
and seven.
Q. The figures opposite? — ^A. One hundred and seven.
Q. Do they agree with the figures on the tally book? — A. They do.
Q. Now, Mr. Barber, state whether or not any votes were counted for John
M. C. Smith that did not appear on the ballots at that election? — A. Not that
1 know of.
Q. I>ld any pluses that were cast there for Claude S. Carney fall to be ac-
counted for? — A. Not to my knowledge.
Recross-examination by Mr. Adams :
Q. You don't know whether the clerks put down the votes as they were
called off for the respective candidates correctly or not? — A. I have no way
of knowing that.
Q. I understood you to say, so far as Representative in Congress was con-
cerned, in the tWo books — ^the tally sheet. Exhibit 25, and the statement book.
Exhibit 26 — opposite the names of John M. C. Smith and Claude S. Carney, that
they agreed. Did I understand you that way? — A. The numbers were the
eame. I said.
Q. Just the figures you mean, just the total figures? — ^A. Yes, sir.
Q. These figures opposite the name of John M. C. Smith in the two books—
161 — are the same in both books? — A. Yes, sir.
Q. One hundred and seven opposite the name of Claude S. Carney are the
same in both books? — ^A. Yes, sir.
Q. There are no total straight votes and no total split votes for either of
those two candidates shown in the statement book. Exhibit 28, is there?— A.
No, sir.
Q. Nor is there any writing in the tally-sheet book, Exhibit 25, opposite the
name of John M. C. Smith, as follows : " One hundred and sixty-one," written
out in ink, is there? — A. No, sir; no writing In the tally book.
Q. There Is np writing of the words " One hundred and seven " in the tally
book. Exhibit 25, opposite the name of Claude S. Carney, Is there? — A. No, sir.
Q. Now, then, opposite the name of John M. C. Smith there are a total of
how many tallies, little strokes there, as shown by the book?
Mr. Frankiiauser. I object to that, as having been gone over.
Q. Count up the strokes and see, or the tallies that appear there opposite
the name of John M. C. Smith. Tell me how many tallies appear opposite his
name, please.
Mr. Maynard. Pluses and minuses?
Mr. Adams. I object to that.
The Witness. Fifty-three.
CABK£Y VS. SMITH. 383
Q. Opposite the name of Claude S. Caruey, what are the total of the tallies
opposite his name? — A. The total number of pen strokes is 35.
Redirect examination by Mr. Maynabd :
Q. There are no blanks opposite either of those names prepareil for that
purpose, for writing that in; no blanks opposite in the tally book? — ^A. I don't
understand the question.
Q. No blanks for writing out the figures in full? — A. No, sir.
Q. Prepared for that purpose? — A. No, sir; none.
Q. Make a little computation for me. The total number of strokes opiwsite
John M. C. Smithes name is how many? — A. Fifty-three.
Q. Opiwslte the name of Claude S. Carney are how many? — A. Thirty- five.
Q. How many splits for John M. C. Smith?— A. Sixty-five.
Q. How many straights for John M. C. Smith? — ^A. Fifty-nine.
Q. How many straights were given for Claude S. Carney? — A. Forty -eight.
Q. How many splits? — A. Sixty-four.
Q. Add them together and see how many that would make. — A. Three hun-
dred and twenty-four.
Q. That would be more than the voters that voted there at that election? —
A. Yes. sir.
Q. That would be evident that that was not the method on which they com*
puted on the tally book?
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial, and call-
ing for the conclusion of the witness.
The Witness. It is evidence to me; yes, sir.
Recross-exa mi nation by Mr. Adams:
Q. One hundred and sixty-one under the heading, '* Total votes received."
in this Exihibit 25, does not show the sum totjil of the straight votes and split
votes opposite the name of John M. C. Smith, does it? — ^A. No, sir.
Q. It shows more than the total of the votes contained in the two columns
under the headings "Total straight votes" and "Total split votes," opposite
the name of John M. C. Smith, does it not? — ^A. Yes, sir.
Q. One hundred and seven, under the heading " Total votes received," does
not show the sum total of the votes recorded in this exhibit in the columns
"Total straight votes" and "Total split votes"?— A. No, sir.
Q. It shows some less, does it not? — ^A. Yes, sir.
Redirect examination by Mr. Maynard:
Q. In your computation you did not carry out the proiwsition. but left out
part — left out 2. What would that amount to for Representative Levant L.
Roger.s? How many ballots are there opposite his name, 3? — A. Yes. sir.
Q. How many ballots opiK)site his name? — ^A. Five.
Q. Set down now to Mr. Dlngley? — A. Twenty-eight.
Q. How much here? — ^A. Forty-four.
Q. Computing by the method that Judge Adams is struggling for, it would
show that the clerk had given how many votes for Congressmen? — A. Four
hundred and sixteen.
Q. As recorded, how many did they get credit for being cast at that elec-
tion?—A. For who?
Q. For Congressmen. — A. Three hundred. *
Q. The whole number of votes cast at that elei'tlon was how many? — A.
Three hundred and nine or three hundred and ten.
Q. The way Judge Adams Is seeking to have you compute that you would
have 416 votes? — A. Yes, sir.
Recross-exami nation by Mr. Adams :
Q. I simply asked you to give what the book shows, didn't I, and you have
given it? — A. It is not what the book shows to me; no, sir.
Q. It is what the book shows ; you have got to assume something to have it
show anything else, isn't that true? — A. I don't know whether it is true or not .
if I Assumed something I know.
Q. If you take the book as it is there, you have got to supply something to
figure it out the way you figured it out for Judge Maynard? — A. I didn't have
to supply anything
Q. You have to assume scmiething that the book does not show in order to
do it, don't you? — A. No, sir: I assume that somebody would have showed me
how to add those up
384 CARNEY VS, SMITH.
Q. Yon have to assume that some of these ballots are mfnus and some plus?—
A. I know they are.
Q. The book doesn't show they are? — A. It does to me.
Q. Explain how it shows it — whether there is anything on that book that
shows that some of these ballots are plus and some minus. — ^A. This light-blue
line shows to me that some are plus and some minus.
Q. It does?— A. Yes, sir; it does to me.
Q. There is nothing there except the fact that there is a blue line to show
the 1)1 us and minus, as you say; is that right? — A. There is nothing but that
blue line.
Q. If you hadn't put down those two rows of tallies there — the strokes. I
mean — in the way you put them down there, the blue line and the red line
and all the lines of that exhibit were printed on there just the same and would
have been there just the same? — A. They would be there just the same; yes, sir.
Q. So the lines have nothing to do on the face of that return there on the
tally book with the plus and minus? — A. The lines have nothing to show it
until the entries are made.
Q. You simply say because there are two rows of tallies opposite the name
of John M. C. Smith and opposite the name of Claude S. Carney that one Vine
is i)lus and the other line is minus? — A. Y'es, sir; that is what I say.
Q. Aside from that there Is not a single thing on that book to show what
ballots were i)lus or what were minus. If any. opposite those two names?—
A. Nothing on there to show It.
Redirect examination by Mr. Maynard:
Q. I do not know, but I asked you whether you ever had any experience in
tallying for elections with this system? — A. I never have.
Q. Have you seen them where they were to work at it? — A. Yes, sir.
Recross-examination by Mr. Adams;
Q. Which ones are plus oi>poslte the name of John M. C. Smith and which
ones do you call minus? — A. I call the ones in the upper row plus and the ones
in the lower row minus.
Q. I show you the tally-sheet book from the township of Eaton Rapids of the
ele<*tlon held on the 5th day of November. 1012, opposite the names, ** Repre-
sentatives in Cx)ngress," under the blue line opposite those names yon find
tallies there opposite the name of John M. C. Smith, under that blue line,
don't you?
Mr. Mavnard. I object to that as incompetent and immaterial; that is not
the siime system and has nothing to do with this book.
Q. Tell me whether that Is not true, as far as the book I am now showing
you and calling your attention to, the tally-sheet book of the township of Eaton
Rai^lds of the November 5, 1912. election. opix>8ite Representatives in Congress,
and oi)i)osite the name of John M. C. Smith, that all the tallies
Mr. Maynard. There are not two rows of tallies, and that Is not the same
.system as this adopteil in the second ward.
Q. Are there below the little blue line, oi>i)oslte the name of John M. C.
Smith, some strokes? — A. Yes. sir.
Q. Now, then, there are how many strokes there opposite the name of John
M. C. Smith, Representative for Congress? — A. Seventy-seven.
Q. They are carrie<l out 77 under the head of " Total split votes " ?—
A. Yes, sir.
Q. Under the name of Claude S. Carney, under the blue line opposite his
name on this Eaton Rapids Township tally-aheet book for the election held
November 5. 1912, how many strokes are there? — A. Twenty-three.
Q. That is carrie<l out in figures under the head ** Total split votes"?—
A. \'es, sir.
Q, This book T am now calling your attention to is ruled just exactly like
Exhibit 25, isn't it — the tally-sheet b(H)k of the second ward of the city of
Charlotte for the general eleinion held November 5, 1912? — A. Yes, sir.
Q. I will show you Exhibit 00, the tally-sheet book of the general election
hold November 5. 1012, in the second ward of Grand Ledge. Eaton County.
Mich.
I^ir. Fbankiiattser. I will (>bje<»t to that, because it is apparent that diflfereut
boards use different methods in tallying in different parts of the county, and
we object to that as incomi)etent. irrelevant, and immaterial and has having
no bearing upon the si)eclal manner of tallying and no connection whatever
with this case.
CABNEY VS. SMITH. 385
Q. I call your attention to Exhibit 66, pages 12 and 13, opposite the printed
words there " Representative in Congress," and John M. C. Smith's name is
opposite that office for Representative in Congress, isn't It? — ^A- Yes, sir.
Q. And Claude S. Carney's?— A. Yes, sir.
Q. This book is ruled just exactly lilce Exhibit 25, isn't it?— A. Yes, sir.
Q. That is, a red and blue line — a heavy red and blue line are the same?-^
A. Yes, sir.
Q. It \B divided off into little squares to put these tallies in in both of these
exhibits I have Just referred to? — ^A. Yes, sir.
Q. Over the little blue line opposite the name of John M. C. Smith you fin4
some of these strokes or tallies? — ^A. Yes. sir.
Q. Under the little blue line opposite the name of John M. C. Smith you find
some strokes or tallies? — ^A. Yes, sir.
Q. So both above and below the blue line, opposite the name of John M. C.
Smith, in Exhibit 66 they are Just the same as in Exhibit 25, and opposite the
name of John M. C. Smith, are they not? — A. They are both above the light
line.
Q. How many strokes do you find in Exhibit 66 opposite the name of Johi;
M. C. Smith, below the light blue line?— A. Twenty-four.
Q. A total of 24. You find 24 carried out as the total split votes, don't you?—
A. Yes, sir.
Q. Fourteen of those are above the little blue line opposite the name of Johu
M. C. Smith?— A. Yes, sir.
Q. And 10 below the little blue line?— A. Yes, sir.
Q. Opposite the name of Claude S. Carney you find 12 strokes above the little
blue lino ^ A« Yes sir
Q. And 10 of them below that little blue Une?— A. Yes, sir.
Q. That makes a total of 22, does it not, opposite the name of Claude S. Car-
ney?— A. Yes, sir.
Redirect examination by Mr. Matnabd:
Q. Take this Exhibit 65. that is not kept by the plus and minus system at
all?— A. No, sir.
Q. Take this exhibit from the township of Eaton Rapids, shown you by couu'
bel for the contestant ; tally book of the general election held on Tuesday, Novem*
ber 5, 1912, in the township hall in the township of Eaton Rapids, county of
Eaton, and referring to the page which he mentioned — page 12 — opposite the
name of John M. C. Smith you find long lines of tallies ; that is not the same
system used in this ward? — ^A. No, sir.
Q. No plus and minus system about it? — ^A. No, sir.
Q. By this system you would have to read all the tallies clear through? — -
A. Yes, sir.'
Q. And here you only have to read the names that are marked? — A. Yes, sir.
CLAUDE S. KNOWLES, being first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified on behalf of the cofatestee as
follows :
Direct examination by Mr. Maynabd:
Q. Mr. Knowles, where do you reside?— A. In the fourth ward, city of Char-
lotte, Eaton County, Michigan. •
Q. What Is your age? — A. I am 43.
Q. Are you a married man? — A. Yes, sir.
Q. When did you move into the ward where you now reside?— A. The 28th ot
January.
Q. What is your occupation? — A. I am an engineer.
Q. Are you engineer for any particular manufacturing company here in the
city?— A. For the Charlotte Manufacturing Co.
Q. How long have you been engineer for the Charlotte Manufacturing Co.?-^
A. Seventeen or eighteen years.
Q. What ward did you reside in previous to your moving to the fourth
ward? — ^A. In the second ward.
Q. Did you hold any official position in the second ward on the 5th day of
November, 1912?— A. Yes, sir.
Q. If so, what?— A. I was alderman in the second ward.
Q. How long had you been alderman? — A. At that time?
Q. Yes, sir— A. Five years.
286—13 ^25
99$ CABKST TS. SMITH.
^ 8teee tbat election yoa say yon. have removed from title ward?— ▲. Tei» ale
Q. Have you reelgned? — ^A. Tea, sir.
Q. Mr. Knowlea. were you present at tbe general Section Ifedd on. tta Qlk dlty
of November, A. D. 1912, In tbe second ward of the dty of CSkaziatte,. Wakm
County, Bfidi.?— A. Ifea, air; I was.
Q. What official position did you fill there that day on the dcctfcm housi^t^
A. L acted as Inspector.
Q. Who else acted as Inspector at that electkm on that paxtJcidar day?— A.
Mr. Hamilton, until he was taken i^ck, then his place wa» aapidiea by Boy
Barber.
Q. C. R. Bajcfoer who Jnet l^t tbe witness stand?— A. Yea» sir.
Q. What time of day did the polls open that morning? — ^A. Seven oVdfidL
Q. Whereabouts was thA election held? — ^A. In the corridor of the court-
house* below here.
Q, In the basement? — ^A. In the basonent
Q. Do you remember about how wide the election booths were?
Mr. Aba MA We did not ccmtrovert that fact and it has been shown here
very plainly.
Q. Which way did the booths run? — ^A. Lengthwise.
Q. Which way? — ^A. East and west
Q. At the east end what was there there tor a fence? — ^A. Th»ne was a gate
xm each side and a fence.
Q. The gate was at which corner of the election bootli, the northeast oomor?—
A* The northeast corner, and the voters came in at the northeast oomer from
Qie booths and went out on the southeast comer.
Q. Who was the gatekeeper next to you? — A. Mr. Bogers.
Q. Which comer was he located at or near? — ^A. The nortbeasC corner.
Q. What particular duties did he perform? — ^A. He initialed the ballots and
passed them out to the voters.
Q. About whot time of day did Mr. Hamilton leave?— A. Why I should think
about 11 o*clocl£^ as I remember it
Q. Did yon go to dinner — to refresh your recollection — before he w»t to
dinner or went home? — ^A. I think so.
Q. Who was left In charge of the booths while you went to Inneh at noon?—
A. I think Mr. Hamilton wa&
Q. When you got back what did Mr. Hamilton do?— ^A. He left Dor dinner.
Q. Who was left in diarge tlien when he went away? — ^A. Mr. Barber came
shortly after.
Q. Before he came? When he left there, were you in charge at the booths? —
A. Tes, sir.
Q. What did you do while he was — did you expect Mr. Barber there, or
somebody In his place? — A. Yes, sir; I expected him.
Q. In the interim before Barber came what did you do? — ^A. I passed out the
bnllots and received them.
Q. How did you go to get to the ballot box when you were passing them out
nnd receiving them? — ^A. I went down one side and crossed to the ballot box
t>n the south side.
Q. That is, you went around the booths to the west end? — ^A. Yes, sir.
Q. When you received the ballots, what did you do. did you make any an-
liouncement; if so. whnt?-*A. I called the number of the ballot to the clerks
and put them In the ballot box.
Q. What was done with the perforated comer of the ballot? — ^A. I tore It off
and threw it on the floor.
Q. Did you see John C. Nichols there? — ^A. Yes, sir.
Q. Did he receive any ballots? — A, Yes. sir.
Q. How did he come to do that? — A. I asked him to.
Q. Just state what he did? — ^A. Why, it was during the noon hour and there
were several came in there at once and I was busy and Mr. Nichols stood
there, and I aslved him to receive ballots for a few minutes.
Q. What did he say?
Mr. Adams. I object to what he said ; it Is Incompet^it and Immat^al.
A. I don't remember what he said ; he came inside and received a few.
Q. About how many did he receive? — A. I think in the neighborhood of five
or six or seven.
Q. Then what took place? — A. Well, Mr. Barber came and relieved him. No*
I think not; I think, before that, that I took care of them myself; I think I
received pome before Mr. Barber came, after Mr. Nichols took a few.
CAiBNB¥ V&^ SMITH. 3^7
Qi When Mr. Barbec came what position did he take?— A. He received ballots
and placed them in the ballot box.
Q. Did you go away again that afternoon before the poUa closed? — ^A. No, sir.
Q, Did you go out to lunch? — ^A. Yes, air.
Q. When?— A. About 4.30.
Q. Who took care of matters while you were jpone?— A. Mr. Barber.
Q. Then did Mr. Barber go out to lunch? — A. I think he did for a few minutes.
Q. Who took charge of it while he was gone? — ^A. I did.
Q. W^ere there any ballots came in to be deposited while he was gone? — ^A. I
don't remember ; I think there were ; there was but one or two.
Q. What time did the polls close?— A. At 5 o'clock.
Q. After the polls closed did you proceed with the count? — ^A. Yefl» sir.
Q. Was there any interruption after you commenced the count before you got
it completed? — ^A. I don't think so; I don't remember of any.
Q. How did you arrange matters there for the count? — A. I don't under-
stand you.
Q. What did you do with the booths? — A. The booths were pushed to one
side and we pushed a couple of tables togetlier« and the ballots were counted
on them.
Q. Those booths — were they light, portable affairs? — A. Yes, sir.
Q. They could be piished around anywhere you wanted to? — A. Yes, sir.
Q. In counting, who read the ballots wh«i you began the count? — ^A. I did.
Q. Did you rend the wiiole of them? — A. I don't remember as to that; I
think I did.
Q. No one did any of the reading but yourself? — A. I don't think they did.
Q. Wiiat have you to say as to whether you read tfiem honestly and correctly
as yon received them from the ballot boxes? — ^A. I read them as I found them,
or tried to.
Q. Who were your clerks? — A. Roy Preston and Herman Guide.
Q. What did they do when you read off the ballots? — ^A. They entered them.
Q. Did they make any announcenaent ? — A. Yes, sir; they checked each one as
we called th^n.
Q. Whai you got through counting, what was done with the ballots? — ^A. The
ballots were rolled up separately, the straight tickets in a bundle and marked,
and the splits were all kept separate and all put in the ballot box.
Q. Now, were any of those ballots put anywhere else than in the ballot box
tliat night when you got through; was there anybody allowed to take, or do
you know whether anybody did remove or take away any bundles of thore
ballots that you had there? — A. Not that I know of; I don't think they did.
Q. Would you know if they carried away any ballots? — ^A. Yes, sir; I
think so.
Cross-examination by Mr. Adams :
Q. Did you have any instruction ballots there that day? — ^A. Yes, sir.
Q. What was done with them when you got through? — A. I don't remem-
ber that any were there.
Q. Your recollection is that none were there? — ^A. I don't think so.
Q. That is your recollection; that you had none? — ^A. Yes, sir.
Q. The straight ballots that had been voted were put in one bundle. by
themselves? — ^A. Yes, sir.
Q. The splits that bad been voted there you put in another InndJe hfy
themselves? — ^A. Yes, sir.
Q. And they were all put in the ballot box?— A. Yes, sir.
Q. What else, if anything, was put In the ballot box? — A. The tally sheet
and poll book, I think; I have forgotten what they were; the tally sheet and
some other things; the poll book.
Q. The statement book? — A. Perhaps so, I am ^ot sure; I don^t remember
about that.
Q. You don't just remember what was put in there, if anything, besides tbe
tally-sheet book? Are you sure? — ^A. No, sir; I don't remember.
Q. Where did you get instructions from as to what you were to put, tf
anything, into the ballot box? — ^A. On the enevelope that the books came \a
I think the instructions were.
Q. Is that where you got your instructions from? Did you get any from
any other source as to what you were to put in the ballot box? — A. I think
so; I dent r^neraber now.
388 OABNEY VS. SMITH.
Q. You read off all the ballots; that is, all the votes as the voters had
voted them from the diflPerent ballots? — A. Yes, sir.
Q. Did anybody else read but you? — A. I think not.
Q. From the time you began counting until you got through? — A. I read
all of them, I think.
Q. What was done with the ballot box after you put those things in that
you say you did? — A. It was sealed and placed in the vault below.
Q. How was it sealed?— A. With sealing wax and a thick piece of canvas
stretched over it and sealed with sealing wax.
Q. Stretched over what? — ^A. Over the top of the cover.
Q. Over the entire cover? — A. Yes, sir.
Q. And some sealing wax put on that strip of canvas? — A. Yes, sir.
Q. Was the strip sealed down on the box? — ^A. I think so.
Q. Sure about that?— A. Pretty sure.
Q. What was done with the ballot box then ? — A. It was put in the vault.
Q. Did you see it put in the vault? — ^A. I helped put it in there.
Q. Then you saw it? — ^A. Yes, sir.
Q. You helped put the ballot box in which the votes were you counted there
that were deposited? The ballots for the various candidates for the several
offices in the vault that night, did you, of November 5, 1912? — ^A. I am quite sure
we put it in the vault, both boxes.
Q. Who helped you put it in the vault or who did you help put it in the vault,
either one? — A. I don't remember; one of the clerks. I can't remember which
one.
Q, What vault did you put them in? — A. The vault; I don't know what kind
of a vault. It belongs to the county, I guess, near where the booths were.
Q. On the floor this election was held in the basement of the courthouse?—
A. Yes, sir.
Q. How did you get into that vault? — ^A. It was open.
Q. When you put the ballot box in there state whether you locked the door
of the vault? — A. No, sir. •
Q. Just put the ballot box In and left the door imlocked? — ^A. Yes, sir.
Q. And went uWay and left the ballot box in that shape in the vault without
the door being locked? — A. Yes, sir.
Q. What did you do — did you have any election returns that you did not put
in the ballot box before you locked and sealed it after you got through with
your work? — A. I don't understand your question.
Q. Well, did you make out any other returns or any other records there of
what occurred at that election tliat day than those that you put in the ballot
box?— A. No, sir; there was a poll book and a tally sheet that went to the
county clerk.
Q. What was done with them? — A. Tliat was taken to the clerk's office.
Q. To the clerk's office? — ^A. The coimty clerk's.
Q. When was it taken there? — A. That same night
Q. Who took it there; did you take it there? — A. No, sir.
Q. Did you go with anybody who did take it?— A. No, sir.
Q. Where did you Fee it last?— A. On the table that we counted the votes
upon.
Q. You were inspector and went away from where you had been counting the
ballots and left lying on the table an envelope in charge of somebody, and the
returns in tliat envelope were addressed to the county clerk? — A. I don't think
I went went away and left it there; I think that Mr. Dann had it and took it
to the county clerk's office.
Q. Did you see Mr. Dann have it? — A. I think so.
Q. Are you sure? — A. No, sir; I am not.
Q. You saw Mr. Dann have it, or else it was on the table when you left the
place?— A. As I remember it, Mr. Dann said he would take it and take it to the
county clerk's office and went up on that floor.
Q. Mr. Dann was the probate judge at that time?— A. Yes, sir.
Q* Was the envelope addressed to the probate judge that you gentlemen put
the returns in?— A. 1 don't remember about that
Q. You didn't furnish any returns to the probate judge of that election, ol
the proceedings there addressed to th€* judge of probate, or the board of county
canvassers in care of the probate judge or the register of probate, did you?—
A. I don't remember that,
Q. You don't remember of anything of that kind having been done?— A.
No, sir.
CARNEY VS. SMITH. 389
Q. The only returns that were not in the ballot box were those that were
addressed to the county clerk? — A. That is as I remember It.
Q. I understood you to say that John C. Nichols received some ballots that
day, did he?— A. Yes, sir.
Q. John C. Nichols?— A. Yes, sir.
Q. He was the man who was running on that ticket and was being voted for
for the office of circuit court commissioner in this county of EJaton? — A. Yes, sir.
Q. The same fellow? — A. Yes, sir.
Q. He acted as challenger there, too, didn't he. at that voting place that day
for the Republican Party? — ^A. I don't know whether he did or not.
Q. He did not present to you any credentials from any of the officers of the
Republican Party here in the city of Charlotte authorizing him to act as chal-
lenger there at that polling place that day, did he? — A. No, sir.
Q. You didn't see any such credentials? — ^A. No, sir.
Q. Well, you called Mr. John C. Nichols in, and he received some ballots? He
acted in that capacity when you called him In? — A. Yes. sir.
Q. Receiving the ballots? — ^A. Yes, sir.
Q. When you received those ballots he was on the opposite side of the booths
from where you were? — ^A. Yes, sir.
Q. So there was no inspector near John C. Nichols where they could see what
he was doing when depositing those ballots in the ballot box, was there? — ^A.
No more than the clerks.
Q. I said Inspectors. — ^A. No, sir.
Q. Now, you think John C. Nichols put in how many ballots? — A. I think in
the neighborhood of six.
Q. I>id you keep any count of them at that time? — ^A. No, sir.
Q. H;ow long did he act? — ^A. Perhaps not to exceed 10 minutes, I don't think.
Q. Not to exceed 10 minutes? — A. I don't think so.
Q. Tfcen, what did John C. Nichols do? — ^A. Why, I don't remember; he may
have stood around.
Q. Not what he might have done, but what you remember? — A. I don't re-
member of seeing him afterwards.
Q. This was during the noon hour, was it, that John C. Nichols was there? —
A. Yes, sir.
Q. He was inspector, performing the duties in putting those ballots in the box
that an inspector would? — A. Yes, sir.
Q. You didn't swear him in, did you, to act in that capacity? — A. No, sir.
Q. You administered no oath to him? — A. No, sir.
Q. No oath was administered to him that day to act as inspector of that
election in that ward? — A. No, sir.
Q. He was not selected by any of the voters who were there at the time he
began to act — that is John C. Nichols I am talking about?— A. He was not
nominated ; no motion was made by any voters.
Q. There was no motion made; none of the voters asked the officers of the
election there that John C. Nichols act as inspector; no such motion was made
there ?--A. No, sir.
Q. So he simply acted by and through a request that you made to him? He
came in and took those ballots and put them in the box? — A. Yes, sir.
Q. That was all the authority he had to act in that capacity? — A. That is all ;
yes, sir.
Q. You are a Republican in politics, are you not? — A. Yes, sir.
Q. And you were on November 5, 1912? — A, Yes. sir.
Q. And have been for a number of years? — A. Yes, sir.
Q. All your life?— A. Yes, sir.
Q. And are at this time? — ^A. Yes, sir.
Q. R. S. Preston, one of the clerks, was he there at that election? — A. Yes, sir.
Q. What was his business, or had been his business, for some little time prior
to the 5th of November, 1912? — A. He was cashier In a bank.
Q. What bank?— A. The First National Bank.
Q. Is that the bank that John M. C. Smith is connected with? — A. Yes, sir.
Q. He was connected with it at that time? — A. Yes, sir.
Redirect examination by Mr. Maynard :
Q. Do you know of anyone helping anybody mark their ballots at that election
in the booths? — A. I don't think so; I don't remember.
Q. Did anybody else go into the booths with any voters that you know of? —
A. I don't remember of anyone.
(Whereupon the hearing was adjourneil until 1 o'clock p. m., March 25, 1913.)
flf90 CARNEY VS. SMITH.
Mabch 25. 1918 — ^1 o'clock p. m.
FRANK A. FORD, recalled for further cross-ezamination, and examined by
Mr. Frankhauser, testified as follows:
Q. I show you Exhibits 7 to 12, inclusive, being envelopes containing the re-
toms from certain townships in this county, and have you examine the figures
and returns of the contents of those envelopes relating to the office of CSoosrees-
man for the third district of Michigan. — ^A. I have; yes, sir.
•Q. The statements books, I mean. — ^A. Yes. sir.
Q. Do you find any erasures or interlineations or any changes In those ^IgiHws
relating to Congressman in this district? — ^A. I &o not.
Q. I show you a book, what is that? — A. That is the docket of justices of the
peace and notaries public, liber B, county of Eaton.
Q. Is that book one of the records of yowr office? — ^A. Yes, sir.
Q. And one you kept? — A. Yes, sir.
Q. Does the law require it, or don't you know? — A. I don't know.
Q. Does that contain a statement of the notaries from time to time in this
county? — ^A. It does.
Q. Will you turn to the name of Loyal W. Davis and see wlkether he was a
notajry public on November 5, 1912, according to that record? Read the record
you find there on the page you are reading from. — ^A. (Reading:) " On page 290.
notaries commission, dated May 25, 1910, Davis, Loyal W., township and city of
Mulligan, post-office address. Mulligan. Date of qualification, May 25- 1910.
Date of commission, May 23, 1910. Date of expiration, May 23, 1914."
Q. I will ask you now where Mulligan is situated? — A. Mulligan is a village
in the township of Roxand.
Mr. Fbankhauseh. We offer in evidence a compilation of the election laws of
the State of Michigan, marked *' Exhibit 67." It is stipulated between counsel
for the c<mte8tant and conteetee that Exhibit 07, entitled " Revision of 1011,
State of Michigan, laws relating to elections compiled under the aupervlsioa <^
Frederick C. Martindale. secretary of state, by authority, liansing, Micdi., Wyn-
koop, Hallenbeck Crawford Co., State printers, 1911," contains all the election
laws which were In force on the 5th day of November, 1912, in the State of
Michigan, and that the same may be used on the hearing in this matter for the
purpose of showing what the various laws relative to elections were on tkat
date, namely, the 5th of November, 1912, and as applicable to the questlcms
involved in this proceeding.
It is hereby stipulated and agreed between the attorneys of the respective
parties that on tlie 5th day of November. 1912, that the city of Eaton Rapids,
county of En ton, was organized and doing business under the general statute of
the State of Michigan relating to the incorporation of cities of the fourth cla«s,
and that the election laws governing elections in fourth-class cities and viflayw
in the State of Michi^n are contained in Exhibit 67, commencing on page 154
thereof.
Redirect examination by Mr. Adams :
Q. I understood you to say that In Exhibit 7 to and including Exhibit 12 there
were no erasures or anything crossed out relating to Congressmen? — A. Tea, sir
Q. In the statement book contained in Exhibit 9, under the heading " Repre-
sentative in Congress," under the subdivision thereunder, " Votes received to
be written out in w^ords at length," Is not written out in words at all opposite
the names of John M. C. Smith, Claude S. Carney, Levant L. Rogers, and Ed-
ward N. DIngley? — ^A. It Is not
Q. In the tally-sheet book marked " Exhibit 35," which contains Bellevue,
there are no Uillies opposite the names of John M. C. Smith, Claude S. Carney.
Levant L. Rogers, and Eklward N. Dingley, candidates for Rei)reseutatlve in
Congress, except one tally opposite the name of Claude S. Carney? — A. That Is
correct.
Q. The figures carried oiit under the headings, " Total straight votes,"
" Total split votes," and " Total votes received," opiwsite the name of each of
the candidates for Representative in Congress are In lead pencil? — A. Yes, «r.
Recross-exa mi nation by Mr. Matnabd:
Q. Witness, in the statement book of general election held on Tuesday, tlie 5th
day of November, 1912, in tlie village council rooms in the township of Belle-
vue, county of Eaton. State of Michigan, which has just been shown you, is the
name of John M. C. Smith written In ink? — A. It Is.
CAAKSY VS. SMITH. 891
Q. Wbat do you find beneath that?— A. Claude S. Carney.
Q. What next? — A. Levant L. Rogers.
Q. Next?--A. Edward N. Dlngley.
Q. Are those written in lend pencil or ink? — ^A. All in ink.
Q. Is it good handwriting, plain handwriting? — ^A. Very plain; yes, air.
) "Q. As to general form, is it written in good form or not? — A. It is.
Q. Opposite their names what numbers are written? — ^A. Opposite the name
of John M. C. Smith, 246 ; opposite the name of Claude S. Carney, 155 ; oppo-
site the name of Levant L. Rogers. 2; opposite the name of Edward N,
Dingley, 45.
Q. What is the fact as to their being written, whether with lead pencil? — A«
They are written in ink.
Q. All of them written In good form? — A. Yes, sir.
Q. In plain figures? — ^A. They are legible.
Q. I will ask you if there are any signs of alterations, interlineations, or
erasures tn any part of that record? — ^A. There Is not.
Q. Now comfMire the others which you say are written in lead pencil upon
this tally-sheet book, this Exhibit 35, on pages 12 and 13, how are the names
of John M. C. Smith, Claude S. Carney, Levant L. Rogers^ and Edward N«
Dlngley written, in lead pencil or otherwise? — ^A. They are written in ink.
Q. Look this book through — ^the tally book; do you find aft^ any officer
any tallies except the writing out of the figures at the right hand? There
are no tallies on those pages, are there? Are there any tallies on pages 8
and 4? — ^A. No, sir.
Q. On pages 2 and 3? — ^A. No, sir.
Q. Pages 4 and 5? — ^A. None.
Q. Pages 6 and 7?— A. None.
Q. Or 8 and 9?— A. None.
Q. Look the book through and see whether there are or not there any
taUieai — ^A. On pages 10 and 11 there are four tallies.
Q. The tallies of the votes are not made on here as they are in the other
book — only at the head of each office run for; Just a check? — A. Yes^ sir.
Q. In lieu of tallies, I mean, are those figures at the back end? — ^A. No, sir.
Q. So if they kept any tallies, they were kept In a separate place, evidently? —
A. Yes, sir.
Q. What is in the right-hand side? — A. The total straight votes and the total
split votes and the total votes received.
Q. Those figures making the totals of those several items, what are fliey
made in. Ink or lead pencil? — ^A. Lead pencil.
Q. Look opposite the names of John M. C. Smith, Claude S. Carney, and see
whether the lead pencil numbers agree with this writing which is in ink. — ^A. I
find th^ all agree.
Redirect examination by Mr. Adams :
Q. Of course you don't know when any of these figures in this book that
counsel has just called your attention to, opposite the name of John M. C.
Smith and the other candidates, were put in this book? — A. I do not; they
were there at the time I received tbeni, the Ist of January, when I went into
office.
Q. In this statem^it book that you have Just been referring to, that Judge
Maynard asked you about relating to the election held November 5, 1912, in the
township of Bellevue, every officer mentioned in that book for the various
offices designated in the book there Is written opposite the name of each can^
didate, aside from those for Representative in Congress, the number of votes
received — ^written out next to the name — in words, in ink, in addition to the
figures shown on the book, showing what the vote of each candidate was ; isn't
that true?— A. It is.
Q. So that under the office " Representative in Congress." opposite the names
of John M. C. Smith. Claude S. Carney, Levant L. Rogers, and Edward N^
Dlngley, as the names appear under the title " Representative in Congress,"
there are no — it Is not written out in words at length how many votes each of
those parties received? — A. No, sir.
Q. That is the only exception in that record, throughout that entire book, as
to the various officers voted for at that election? — A. Yes, sir.
Q. Now, both of the envelopes from the township of Bellevue — the one ad^
dressed to the county clerk, Charlotte. Eaton County Mich., with the oleotion
returns of that election, and also the envelope addressed to the board of county
892 CAKNEY VS. SMITH.
canvassers, care the judge of probate or register of probate — ^have written ou
the back of them, right under the flaps, something showing what the condition
of those envelopes were when received? — A. Yes, sir,
Q. Now, then, referring to Exhibit 9, the one addressed to the board of
county canvassers, containing the Bellevue Township returns, what does that
say there, written In Ink linder the flap on the back of the envelope? — A. (read-
ings). "Received unsealed by Carrier 4. Hall."
Q. Referring to the envelope containing the election returns from Bellevue
Township, addressed to the county clerk, Charlotte, Eaton County, Mich., what
do you find under the flap there, written in ink on the back of this envelope?—
A. (reading). "Received bad, unsealed, Hall, carrier."
ROY S. PRESTON, being duly sworn to testify to the truth, the whole truth,
and nothing but the truth, testified on behalf of the contestee as follows :
Direct examination by Mr. Maynard:
Q. Mr. Preston, where do you reside? — A. In the second ward In the city of
Charlotte.
Q. Eaton County, Mich.? — A. Yes, sir.
Q. What is your age?— A. I am 33.
Q. How long have you lived In the city of Charlotte? — A. About 25 years.
Q. How long have you lived in the second ward? — ^A. About 12 years.
Q. What is your occup»ition? — A. I am teller in the First National Bank.
Q. How long have you been employed in the bank? — A. About four years
and a half.
Q. Whnt w^as your occupation before that? — A. I was agent for the Michigan
Central Railroad Ck>., at Charlotte.
Q. How long did j'ou hold that iwsition?— A. With the Michigan Central,
about six years.
Q. Were you with any other railroad? — A. I worked for the Pennsylvania Co.
and the Grand Trunk.
Q. When you woijed for the Michigan Central Railroad Co., where were
you employe<l? — A. South Bend. Ind.
Q. Where were you employed by that company in this city? — ^A. That i8
where I was with the Michigan Central, in Charlotte.
Q. Where were you with the Grand Trunk Co.? — ^A. I was with them one
year at Charlotte and three years In South Bend.
Q. Your last railroad employment was with the Michigan Central in Char-
lotte?— A. Yes, sir.
Q. You were with them about how4ong? — A. About six years.
Q. Since that did you go to work for the bank? — A. Yes, sir.
Q. In what capacity? — A. As bookkeeper.
Q. You are now teller? — A. Yes, sir.
Q. Were you present at the general election held in the second ward of the
city of Charlotte, Eaton County, Mich., on November 5, A. D. 1912? — ^A. Yea.
sir; I was.
Q. Did you act In any official capacity at that election in that place? — ^A. I
was one of the clerks of the second ward.
Q. Were you there when the polls opened that morning? — ^A. Yes, sir.
Q. Did you ever work in the snme cai)aclty as this before? — A. Yes, sir.
Q. More than once? — A. Some four or five times,
Q. How long ago was the first time?
Mr. Adams. Objected to as incompetent and immaterial.
A. If I remember rightly, I acted as clerk once before I went to work in the
bank.
Q. And several times since? — A. Three or four times since.
Q. I show you this Exhibit 25, the tally sheet from that precinct of that elec-
tion, and a.sk you if you know who kept that tally sheet? Whose handwriting
It Is? — A. It looks to me like Herman Guide's, thnt sheet.
Q. Do you know In whose handwriting the statement book. Exhibit 28, is?—
A. That looks like Mr. Guide's also; it Is not mine.
Q. In whose handwriting is the ik)11 book?— A. That is Mr. Guide's; he was
the other clerk of the election.
Q. That same election? — A. That same election.
Q. Did you keep one set of books and he one? — A. Yes, sir.
Q. Who kept the tally book ; that is the one you kept ; and the other two books
you think were kept by Mr. Guide? — A. They must have been; it Is not my
writing, and he was the other clerk.
CARNEY VS. SMITH. 393
Q. Was this kept after the same system you kept yours? — A. Yes, sir.
Q. Take the tally sheet and look at the tally-sheet book, and turn to the page
where the tallying was done for the office of Ck>ngres8man ; what page is that? —
A. The pages open up at pages 12 and 13.
Q. Now, Witness, now, after being printed there in front — sprinting the offices
for which the votes were cast — under the column " Candidates for office," what
names do you find written?— A. John M. C. Smith, Claude S. Carney, Levant L.
Rogers, and Edward M. Dingley.
Q. Now, on the right-hand side of the l>ook. do you find two columns, and
what are they?— A. "Total straight votes" and "Total split votes."
Q. What is the next?— A. " Total votes received."
Q. Now, under that system of counting, how did you set down that record? —
A. I gave each candidate the full number of straight votes and also the full
number of splits on his ticket.
Q. Just as though he received the full amount? — A. Just as if he had re-
ceived the total amount. As they were calling off the split votes afterwards he
was given the benefit of all the plus and minuses that occurred.
Q. Plus — ^you say he was given the benefit of the plus — ^what do you mean by
that?— A. He would get a minus on all those we had originally given him, the
total amoimt of all the splits; if his vote had been split a minus was given to the
otlier candidate.
Q. If somebody voted against him? — A. Yes, sir; he was given a check as
minus if the candidate voted for was given a plus.
Q. On which side of the line were the minuses put? — A. On the bottom.
Q- Where were the plusses put? — A. On top.
Q. By looking at that name. John M. C. Smith, and the tallies immediately
following, can you tell how many votes were struck off from John M. C. Smith's
record of the votes cast against him on his own ticket? — A. Yes, sir.
Q. How many? — ^A. He received eight minus votes.
Q. The minus votes would be the ones that came from his own party ticket? —
A. Yes, sir.
Q. He is credited in the first place with how many straights? — A. The tally
sheet shows 65.
Q. How many total splits? — A. Fifty-nine.
Q. Now. if he lost any by any of his party voting against him that would be
what kind of a vote? — A. That would be called a minus.
Q. Was that deducted from it?— A. Yes, sir.
Q. If he had 65 and 59 to start out with you would t*ike from that 8 votes? —
A Yes, sir.
Q. And to that result would be added what he got from the other parties on
the plus votes? — A. Yes, sir.
Q. How many did he receive from the other parties? — A. He received 45.
Q. That gave him a total of how many? — A. One hundred and sixty-one.
Q. Was that the way that record was made up — that Is the way this tally
sheet shows?
Mr. Adams. Do you mean that?
A. I don't Just get your meaning.
Q. Mr. Preston, is that the way that tally sheet was kept? — A. Yea, sir.
Q. The minus marks were put under the line? — A. Yes, sir.
Q. Where were the plus marks put? — ^A. On top.
Q. Is that the way it was kept with every candidate In that ward? — A Yes,
sir.
Q. W^here did you sit in the voting booth? — ^A. It would be at the west end
of the booth. ' In the northwest corner of the place that was stretched off for
the voting place.
Q Was here any room around the west end of the booths? — A. We could walk
between our tables and the booths.
Q. That is the went end of It? — A. Yes. sir.
Q. Which were you, the south one of the clerks or north one? — ^A. The south
Q. You sat nearest to the box? — A. I was nearest to the box.
Q. Do you remember whether or not Mr. Hamilton was one of the Inspectors
of election? — ^A. Yes. sir.
Q. Do you know about when he left?— A. I couldn't tell you the hour exactly,
bnt somewhere near noon.
Q. Did you see him back there that day? — ^A. I did not.
Q. Did yon see anybody come in his place? — ^A. Roy Barber was sworn In to
act in his i^ace after he went home sick.
8M CABITEY V6. BldTH.
Q. Did jon Me Mr. Barber wlieii be llfst artiT«d?— A. Yes, Mr,
Q. Wbat did be do in tbe flnt plaoe?— A. He oame tbere and was awoni in
and took tbe poaitton of reeeivlng ballots and patting tlMBi in tbe imbc.
Q. When the ballots were handed to tbe voters on the north side of tbe bootb,
wiio annooneed tlie name after they had prepared their ballots? — A. Tl^ey came
out on the south side of the booth.
Q. Was tliere any announcesMiit made wIkd they came oat? — A. TMr narae
was called and the number on the ballot
Q. Wliat did you do?— A. We checlied that off from tlie list of ▼oters there;
tlie poll boolE it is called.
Q. On this Exhibit 15, on this list here?— A. Yes, sir.
Q. When you got through did the ballots that remained correspond witli
Ottt number? — ^A. Yes, sir; exactly when we coimted up.
Q. Did you compare them with the list? — ^A. We compared the total amouDt
it shows there, 830, with the amount of ballots we bad on hand.
Q. They yoted the 810 votes? — A. It seems to me there was 1 vote, if I
rememl>er right, that was canceled or something; it was no goad for aome
reason.
Q. Not considered a legal vote, is that what you mean?— 7A. I cui't remember
exactly whether it was — ^It seems to me it was put in no vote at all ; no marin
on it ; a ballot that counted nothing for anybody.
Q. Whnt you mean Is that there were 310 votes cast, d09 coonted, and the
number destroyed 1 ; Is that whnt you mean by that?— A. TWs ballot T refer to
I can't just place it — ^the exact cause of that; but the ballot counted nothing
for anyone.
Q. Now, Witness, were you tbere when tbe polls closed?— A. Yes, sir.
Q. What did you first do? — ^A. It was announced that the polls were now
closed and we moved the booths back slightly so we could have more room aad
got our tables together and the ballot box emptied and proceeded with the comit
Q. What did you do to count them? — ^A. We took them all out and s^[ia rated
them into piles; that Is, with reference to each party's straight votes and each
party's split votes.
Q. Were they counted then? — ^A. Yes, sir.
Q. When you counted the straights what was done; were they announced?—
A. The total number of straight votes were immediately entered in our tally-
sheet book.
Q. Were those entered by yourself just as they were given to yea?— A. Tes,
sir.
Q. Then, after the straight votes were counted and credited up to each can-
didate, what was done with the splits?— A. The total number of split votes were
counted and each party given credit for the total number of splits, the sanie
as the straights at first.
Q. Then what did you do?— A. We took each party's vote separately and
went through the plus and minus system, as has been stated.
Q. Proceeding under that system, how much, or what part, of the reading
were you able to avoid?— A. What part of the reading of the ballots?
Q. Yes, sir.— A. We simply just called the candidates that had— where the
splits had occurred.
Q. No other part of the ballot was read?— A. No. sir.
Q. Each one had credit for the entire vote anyway?— A. Yes, sir.
Q. Now, then, when you were making this tally of the splits of the minus vote,
did you make a correct tally, just as they were read off to you?— A. Yes, sir;
Mr. Guide and I agreed on every check.
Q. Did you check through with each other? — A. Yes, sir.
Q. All the way through?— A. When we were through, each checked back to
the other to see that we had the same number of plus and minus for each
candidate.
Q. Was there any difference?— A. We didn't find any; they seemed to be the
same.
Q. Did you record them as they were read off to you? — ^A. Yes, sir.
Q. During the day there, at any time during the noon hour, at any time, did
you see John C. Nichols in the inside of the voting place?— A. I think he was
there a few minutes.
Q. What did you see him doing, if anything? — A. If I remember correctly, he
received and put 2 or 3 ballots in the box.
Q. Did you see him? — A. Yes, sir.
CAfilTfiY VS. «»cirB. M6
Q. Wliat did be ao wlien be recelv«d tbe ball^U?^-^. The mne •• Ur, HmoII-
ton ; be called the number and tbe name. /
Q. Tben wbat did be do witb tbe ballat8?-^A. Be vot them In tte box.
Cross-examination of Mr. Preston by Mr. Adams :
Q. If yon got a ballot tbat was not voted at tbe bead of tbe tlckAt at an. Jiiat
some one or more candidates were marked — ^tbat la, tbere was a mark before
tbe names — how. in the first Instance, did yon count tbat ballot?— A. Tbat was
laid out and was not counted witb the straights and splits, and ea<A man was
givoi credit for just tbe vote on tbat ticket
Q. He was given credit for tbe votes on tbat ticket? — ^A. Yea, air.
Q. Did you use any plus-and-minus system witb reference to socb ballots aa
that?— A. We did not.
Q. Ton didn*t use tbat plus-and-minus system with reference to that? — ^A. We
gave each man credit voted for on tbat ticket
Q. Ton didn't apply tbe plus-and-minua system to such a ballot as I have Joat
asked you about at all? — A. We didn't include tbat in the straights and splits.
Q. Ton didn't apply tbe plus-aud-mlnus system to that kind of a ballot? — ^A.
No, sir ; we could not.
Q. How many ballot boxes did you have there tbat day? — ^A. If I remember
ri|^ two.
Q. Do you remember? What is your recollection? — ^A. There were two; one
large one for tbe main ballots, and I think the small one had the amend-
ments in.
Q. On woman suffrage? — ^A. Tes, sir.
Q. And tbe amendments to tbe constitution? — ^A. Yes, sir.
Q. And the larger box was the one in which you put all the ballots, including
the ballots that had the votes on them for Representative in Ongress? — ^A.
Tea, sir.
Q. Now. you destroyed that ballot, I suppose, because there was an excess
of ballots in tbe ballot box. didn't you? — ^A. No, sir.
Q. You didn't do it for tbat reason? — ^A. No, sir.
Q. Wbat reason did you destroy it for? — A. I can't remember at the time Just
exactly what was the matter.
Q. But you didn't destroy it because you had an excess of ballots in the bal-
lot box? — A. No, sir; at the time it was put in the box, if I remember rightly,
tbe ballot was not voted at all, or something ; I don't just remember about that.
Q. You did not destroy that one ballot there because the whole number of
ballots were in excess of the number of electors was one, did you? — ^A. I don't
understand the question.
Q. You didn't destroy that one ballot on account of that being in excess of
the whole number of ballots. You didn't destroy that one ballot there because
the whole number of ballots exceeded by one tbe number of electors voting? —
A. No, sir.
Q. As shown by your poll book? — ^A. No. sir.
Q. What right did you have — do you claim you bad there — to destroy that
ballot at all; do you know of any legal authority for it? — ^A. It was there and
there was nothing else to do but destroy It.
Q. It was in the ballot box when you opened it?— A. If I remember right,
it was in with the rest of them.
Q. It was in witb the ballots— in the ballot box when you opened it up to
begin your count— the one that was destroyed? — A. I think that is the way
of it.
Q. Your board took It upon itself to destroy tbat ballot after you took it out
<rf tbe ballot box? The board took it upon itself to destroy that ballot and
(lid destroy it?— A. There was nothing on the ballot to destroy.
Q. Whether there was anything on the ballot or not, it was a ballot that was
taken in with the other ballots that were put that day in the ballot box and
was there when you opened it and began the count? — A. It was in the box.
Q. Witb tbe other ballots that had been voted?— A. Yes, sir.
Q. And you destroyed it?— A. We destroyed the ballot; but there was nothing
on it
Q. What did you do with it— what was done with it ; did you finally tear
it up?— A. No, sir; it was put back In with the rest of the ballote.
Q. Your return shows tbat you destroyed it; did you destroy it or not? I
call your attention now to Exhibit 16, to the return of your board of election,
and it shows you destroyed one ballot ; how did you destroy it ?
396 CARNBY VS. SMITH.
Mr. Fbankhauseb. I object to the cross-examination; it is immaterial to
the case.
A. If I remember right, that word "destroyed" would be better if you
would put it " unused."
Q. It says " destroyed " ? — A. Yes, sir ; that is the way it is written In this
list of voters.
Q. Don't you know that the only right that you had to destroy a ballot at all
that day was because it was in excess of the number of votes voted in the
ballot box?
Mr. Maynabd. I object to his asking what his legal knowledge is.
A. I have answered it the way I recollect it, and that is all I can tell you
about it.
Q. You can answer the question I just put to you. — A. There was nothing on
the ballot; we couldn't count it for anybody; it was In there and showed 310
ballots, and when we counted there was the total number of straights and
splits and this ballot had nothing on that we could count
Q. You located in that ballot box 310?— A. Yes, sir.
Q. You had 310; what did you destroy the one for? — ^A. There was nothing
on it to count.
Q. Your return as shown by Exhibit 15, where it says, " Whole number of
ballots in excess of the number of voters voting and destroyed was one." That
Is not true? — ^A. It was true.
Q. If true you didn't have any ballots in the ballot box in excess of 310?—
A. We had 310 in the box.
Q. If you had 310 in the box your election return is not true when you
say, *• Whole number of ballots in excess of the number of electors voting and
destroyed was one"; that is not true, is It? — A. I don't know what the book
fljiys; I know the ballot was simply unused and we could not count It.
Q. Look at this page 16 of Exhibit 15 and see whether I read it correctly,
*' Whole number of ballots in excess of the number of electors voting and de-
stroyed"; do you see that? — ^A. Yes, sir.
Q. There were no ballots in the ballot box in excess of 310 votes? — ^A. There
were 310 In the box, 309 counted and one unused.
Q. That is the only explanation you can make of it? — A. Yes, sir.
Q. The whole number of ballots counted on opening the ballot box was 309;
Is that true? — A. Three hundred and nine that we counted.
Q. " The whole number of ballots counted on oi)ening the ballot box was 309."
It says that on page 16 of Exhibit 15. Is that true— that statement contained
there on page 16?— A. That is what it says, and it also says
Mr. Adams. Never mind. I object to the witness saying anything else but to
answer the question yes or no. If he can not answer it yes or no, he should
say po.
Q. It says on that same page, *' Whole number of votes cast according to the
poll list is 310"?— A. Yes. sir.
Q. That is what the list shows? — A. That is what the list shows: we had 309
th{?t we accounted for and one that could not be counted because there was noth-
ing on it.
Q. You destroyed that one? — A. We didn't destroy it: we left it with the rest
of them.
Q. Then that record where you say you destroyed it is not true. What did
you mean by that; you say you didn't destroy it? — A. That was our version of
it, that we could not count it.
Q. You do not say you didn't count it, but you sjiy you destroyed It, and yenr
return says so. — A. That is what is on there: that is what that says.
Q. You wrote in there in Ink "one." didn't you? "The whole number of
ballots in excess of the number of electors voting and destroyed was one."
That is the printed part of your return? — A. Yes, sir.
Q. Then there is written In, after the word "was," "One" in ink?— A.
Yes, sir.
Q. So your board wrote in the word " oue " : somebody did. You say it was
Mr. Guide's writing?— A. It must be. as it is not mine.
Q. Is it? — ^A. I wouldn't swear to that.
Q. Anyway, the word "one" is written in there? — A. Yes, sir.
Q. So it reads now, " Whole number of ballots in excess of the number of
electors voting and destroyed was one"? — A. Yes, sir.
Q. Who swore Mr. Barber in before he began to act as inspector that day? —
A. I don't remember.
CARNEY VS. SMITH. 39T
Q. Did anybody?— A. Somebody did.
Q. If you don't remember, why do you say somebody did? — ^A. There were
several notaries around there that day.
Q. There might have been 20 ; do you remember whether anybody swore him
in?— A. Somebody did, but I don't remember who it was.
Q. You have forgotten who swore him in, but you do remember he was sworn
In?— A. Yes, sir.
Q. Now. Mr. Hamilton left about noon, did he? — ^A. About that time.
Q. And John C. Nichols acted awhile — John C. Nichols who was a candidate
for circuit court commissioner? — ^A. I remember of his taking two or three
ballots.
Q. He didn't take more than two, did he? — ^A. I couldn't tell yon, but it waa
a very small amount.
Q. You were where you could see him? — ^A. Yes, sir.
Q. Did he take more than three? — ^A. I wouldn't say.
Q. You don't know how many he took? — ^A. It could not have been
Q. Wait a minute; don't let us argue it; you are here to give us facts as yon
remember; your attorneys will take care and ask you about that after a while.
Yon don't know, do you, how many he took? The question calls for your
knowledge. — ^A. I would not positively state the number of ballots he took.
Q. You don't remember how many he took, do you? — A. No, sir; I do not,,
ppdtively.
Q. You don't remember now how many he took? — A. No, sir; I did not at
that time exactly.
Q. This was John G. Nichols's precinct in which he voted, was it not, in the
second ward? — A. I believe it i&
Q. He voted in that precinct that day, didn't he? — ^A. Yes, sir.
Q. There is nothing on that book there. Exhibit 25, any plus or minus
signs, are there, on that book opposite the names of any of the different candi-
dates for Representative in Congress? — A. I don't understand that question.
Q. You have been talking about plus and minus on the other side; I want
to know whether there are any plus or minus signs there? — ^A. Yes, sir.
Q. Where are they? — ^A. Opposite each name.
Q. Where is the plus? — ^A. On top.
Q. Do you see any plus sign there? Watch my questions and be sure what
you are testifying to; Just show whether there is a plus sign there opposite
the name or anywhere near the name, or anywhere on that page where the
dijferent candidates for Representative for Ck)ngress appear; that is, on pages
12 and 13 of Exhibit 25. will you point it out to me?
Mr. Maynabd. It may be admitted on the record that there are no char-
acters there of plus or minus signs and no one has said there waa
Q. There is now as a matter of fact, after counsel has conceded it on the
record, there are no plus or minus signs anywhere that you can find, plain or
indistinct even, on pages 12 and 13 where the different candidates' names
appear for Representative in Congress, are there? — A. There are no plus or
minus characters.
Q. It is not written out in words " plus " or " minus " on those pages? — A^
No, sir.
Q. So that if anybody who didn't know what you know about the way yovt
claim to know about the way you counted that thing up, who took that Ex-
hibit 25, they could not possibly figure that thing out the way you figured it
out, could they? — A. There is no character I suppose as we put on top the
plus and the minus on the bottom, that Is the way I stated it five or six
times.
Q. So that if anybody who didn't know what you know about the way you
claim to know about the way you counted that thing up, who took that Ex-
hibit 25, they could not possible figure that thing out the way you figured it
out, could they? — A. No, sir; I can't answer it any different than I have.
Q. Now, then, this book, the printed book that was furnished your board
there to put in your election returns and make your return upon and for
keeping your count of the votes cast there November 5, 1012, is printed at
the top of some of the columns to the right of the different candidates for
Representative in Congress on the first column these words, "total straight
votes"?— A. Yes, sir.
Q. So yon would understand, would you not, that when you put down in
fi^nres in that column opposite any candidate's name, you were expected to
put down the total straight votes you found down for him there that day? —
A. That was the idea.
396 CABSrSY vs. SSCITH.
Q. You so understand it? — ^A. Yes, sir.
Q. Id the neatt ocrtunm ef ttits Bxhihit 25 has at the head i^nted tbere as
a i>art of the book fuiTifsbed the board, " Total split rotes," hasn't tt?
Mr. Matnabd. I ob|ect to that as iuoompetent, irrelerant, and immaterial.
There is no law or obligation that any ofDcer of the election shall use any
one of these returns; they can make them on a blank piece of paper if they
desire; they are only for the aid of the officers and are only purchased for
that purpose. They may be used in the way one person wishes to or an-
other, but the result is the only thing that is important, no matter how ar-
rived at, and there is do law that compels them to make tallies for splits
or anything of that deserlptioo there, but to arrive at the number of roten
cast for the candidates and that is to be set down and returned and that alone,
and unless it is shown that there has been some mistake made It is of no
interest to anybody on earth how the clerks arrived at the result.
It appears that Mr. C^amey got all the votes cast for him there and tbat Mr.
Smith got no more than was cast for him there by this method aod I object to
any sort of testimony on that line as incompetent and immaterial.
Mr. Adah 8. I object to the remarks of counsel and the statements he has
made as not based upon the facts in the case and as argumentative.
Q. The next coliunn on this Exhibit 25 has at the head printed there as a
part of the book furnished the board, "Total split votes,'* hasn't it, is that
true? — ^A. The total split votes not counted
Mr. Aj>aics. I move to strike out the answer as not responsive to the ques-
tion. The question is and you will have to answer it sooner or later and yon
may as well answer it now as later. I ask you the question whether it is not a
fact that on page 13 of Exhibit 25 at the head of th€ page printed there on a
printing machine there appears in the second column these words, " Total split
votes." Is that true or not?
A. Can I ask you a. question so I can understand it?
Q. No, sir. Can you answer that or not? I ask you the question whether It
is not a fact that on page 13 in Exhibit 25 at the head of the page printed
there on a printing machine, there appears in the second column these words,
"Total split votes," is that true or not?— A. It is printed that way; yes, sir.
Q. It is printed that way? — A. Yes, sir.
Q. Opposite the name of John M. C. Smith under that bending of "Total
split votes," you And 59 total split votes?— A. Yes, sir.
Q. Were those the total 8i>lit votes that John M. C. Smith received there that
day as shown by the tallies? — A. Yes, sir.
Q. John M. C. Smith got 59 split votes, did he; that was the total of his
split votes?— A. That is the total of the split votes without any heading.
Q. Without any heading he got 59 ^llt votes?— A. Yes, sir.
Q. Claude S. Carney under the heading, " Total split votes;" are tlie figures
64?— A. Yes, sir.
Q. Now, Claude S. Carney received 64 split votes as shown by the tallies?—
A Ycs sir
Q. There were 64 different ballots that were s^lit for Claude S. Carney?—
A. Yes sir.
Q. Then the total straight votes and the total split votes had to give the
number of votes each candidate received? — ^A. No, sir.
Q. It should not?— A. No, sir; it should not.
Q. There is a heading here on page 13 of this book which says opposite each
column running down to the foot of the page and opposite each of these candi-
dates for Representative in Congress, John M. C. Smith and Cloude S. Carney.
" Total votes received," In that column are there not the total of the straight
votes and the total of the split votes?— A. No, sir.
Q. I notice here that there are two envelopes, one addressed to the board of
county canvassers in care of the Judge of probate or register of probata, Char-
lotte, with the election returns from the second ward of Charlotte, and in an-
other envelope addressed to the county clerk, Charlotte, Eaton County, MidL,
from the second ward of Charlotte, Mich. ; now there are among those retunis
there, one statement book, one tally-sheet book, and one poll book?— A. Yes, sir
Q. Are there any other election returns In either one of those envelopes i
have Just called your attention to besides the tally-sheet book, the poll book.
and one statement book? ^^
Mr. Frankhauseb. I object to the question. I think the recoat rtiould shew
that these returns have been In there during this investigation, and tlwftcf
that the witness found no more returns or not, as shown by counsei's qneflilaiL
CAB9SY VS. SMIXK. 399*
GUI hKW9 no bwrlnjT on tbe fact wh«tlier they ai« all the i^tnma or not ; the
comity dork or the Judge of probate mlf^t be competent wltnoaoco on that
^eation.
(Laat <iiM8tiim read.)
A. I don't know.
Q. Look and aee, please; they are before you. — ^A. I see theae three bookfl
there.
Q. Look at the enir^opes ; they are before you. — ^A. I see two env^opes there.
Q. Will yon look and see, please, whether there are any other returns in
those than those three that I have Just mentioned in those envelopes? — ^A.
There is nothing in the envelopes at the present time^
Q. Ton have looked at that one, have you? — ^A. I don't see any in those two
envelopes.
Q. Those are the only returns you find there in connection with those two
eiiT^opes, those three books — the tally-sheet book, the ix>ll book, and the state-
ment book? — ^A. That is all that has been lying on this desk.
Q. You will notice the writing on one of the envelopes addressed to the
county clerk with the returns from the second ward, Charlotte, Eaton CJounty,
written on the comer "Statement book missing," don't you? — A. Yes^ sir;
I see that.
Q. Did you go to your meals while you were there on election day working
on that election board? — A. Yes. sir. ♦
Q. Did you go out at noon? — A. I went for lunch.
Q. How many minutes; 5? — ^A. Perhaps 15.
Q. Did you go to lunch and get your lunch? — A. Yes, sir.
Q. How far did you go? — ^A. About two blocks.
Q. To a restaurant? — A. No, sir; I went home.
Q. To your home? — ^A. Yes, sir.
Q. It took you 15 minutes, you think, to walk two blocks and get your lunch
and get back ? — ^A. About that
Q. And get on the board again? — A. Yes, sir; I had my wheel.
Q. Did you go out to supper? — A. Yes, sir.
Q. How long were you gone to supper? — ^A. About 10 minutes.
Q. Where did you go to supper? — A. Over to the restaurant right around the
corner.
Q. What time did you go to supper? — A. About 4.30.
Q. Were you out any other times that day while the board was in session
there taking any votes or counting? — A. No, sir.
Q. Yon are working in the bank that John M. G. Smith has charge of — Oon-
grenman Smith? — ^A. Yes, sir.
Q. You were working in that bank, were you. employed in that bank, on
November 6, 1912, when you acted on this electloii boaidT— ▲. TeB, fir.
Q. How long have you been working in John M. O. Smith's bank? — ^A. About
four years and a half.
Q. How long, has John M. C. Smith been connected with that bank? — ^A. J
coQldn't say^
Q. Was he connected with it when you began working in it? — A. Yes, sir.
Redirect examination by Mr. Maynard :
Q. Mr. Preston, was that a true count of the votes received in the second ward
Jt that election? — ^A. Yes, sir.
Q. Does that show the correct return as to John M. C. Smith? — ^A. Yes, sir.
Q. To make it plain, opposite John M. C. Smith's name appears in the
column of "Total straight votes" what number? — A. Slxty-flve.
Q. And in the column " Total split votes " what number? — A. Fifty-nine.
Q. That 65 and 59 represent what?— A. The total straights and the total
spIitSL
Q. Was that the Republican vote? — ^A. Yes, sir.
Q. Claude S. Carney has what number of total straights before his name — A.
Forty-eight.
Q. And the total split votes? — ^A. Sixty-four.
Q. What do those two indicate? — A. The total straight and total split Demo-
cratic votea
Q. The total Democratic vote? — ^A. Yes, sir.
Q. Then following John M. C. Smith's name are some tallies; those below
the line r^resent what? — A. They represent the minus vote.
Q. Are those what he lost there — ^his own ticket? — ^A. Yes, sir.
400 ■ CARNEY VS. SMITH.
Q. Then above the line are called what? — A. The plus vote or those he
gained by the splits.
Q. Those that he gained from other parties? — A. From other parties.
Q. Then when yon take the minus from the plus and add that to the total
straight and total split votes, does that form the total number of votes re-
ceived?— ^A. Yes, sir.
Q. Of that election?— A. Yes, sir.
Q. The amount is how much? — A. -One hundred and sixty-one for John M. C.
Smith.
Q. Is that a correct computation according to your record? — A. Yes, sir.
Recross-examinntion by Mr. Adams :
Q. These books you used here in the second ward of Charlotte for making
out your election records at that election held November 5, 1912, were mere
printed forms of books that were used throughout this county? — A. I couldn't
say; I saw no other books.
Q. You have seen no other books? — A. No, sir.
Q. You haven't looked through all these election returns? — ^A. Nothing only
in our own ward.
Q. These books were furnished your election board by the county clerk,
weren't they, of the county of Eaton? — ^A. I suppose that is where they got
them.
Q. Do you know? — A. I wouldn't swear where they came from.
Mr. Maynabd. I object to that, if he doesn't know.
WILLIAM CLEMENTS, being duly sworn to tell the truth, the whole truth,
and nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Fbankhauseb:
Q. You live where? — A. Township of Carmel.
Q. How long have you lived there? — A. Do you mean this last time or all
my life?
Q. All your life. — ^A. Al)out 30 years.
Q. How long this last time? — A. Eight years.
Q. How old are you? — A. I am 58.
Q. What is your business? — A. I am a farmer.
Q. How far do yon live from the city of Charlotte here? — ^A. About 3i miles.
Q. Do you vote in the township of Carmel? — A. Yes, sir.
Q. I>id you vote there November 5, 1912? — ^A. Yes, sir.
Q. WhMt time in the day? — A. Just after dinner.
Q. I wish you would tell on the record here Just what occurred there with
reference to the counting of the votes after dinner? — ^A. Well, now, I don't
know as I understand what you mean.
Q. Tell from the start about counting those votes; how they came to count
them, if you know? — A. Well, I went up there Just after dinner, and the super-
visor was talking about the box getting so full it was a hard matter to get the
tickets In. And I heard a little talk after that about emptying the box out and
counting them ; I Just heard a little talk about that.
Q. Where were you when you heard this talk? — ^A. I was right there in the
room.
Q. Now, was the voting place separated from the outside by a railing?—
A. Yes, sir.
Q. You were outside when you heard this talk? — A. Yes, sir.
Q. What occurred after you heard this talk? — A. I went outdoors and was
talking around with the men, and the first thing the clerk came out and
called me.
Q. D. C. Cole?— A. Yes, sir; and asked nie to come In and help count the
tickets,
Q. Did any of the other members of the board invite you to help do this?—
A. No, sir.
Q. Were you sworn? — A. Yes. sir.
Q. Did you begin your work ? — A. Yes, sir.
Q. Do you remember who swore you? — A. W. L. Huber.
Q. He is a Justice of the peace, you understand? — A. Yes, sir.
Q. After you were sworn what did you do? — A. We began to count the tickets
that were In the box.
Q. I understood you that the box hadn't been emptied before you came In?—
A. Yes, sir; when I came into the room the ballots were lying on the table.
GABKET VS. SMITH. 401
Q. Who did the reading of the ballots?— A. W. L. Huber.
Q. Who did the tallying?— A. Cortez Gushing and myself.
Q. State what you and Mr. Gushing did in the way of comparing your tal-
lies,— ^A. Whenever Mr. Huber would read off a name or a vote for one man I
would say the number of votes that there was, 1, 2, or 3, whatever there was,
and if they corresponded with the other man he wouldn't say anything ; If they
didn't he would speak about it
Q. Did you have to back up once or twice that day?— A. I think there was
twice In the whole afternoon that there was one difference.
Q. What did you do about It? — A. We just took and went back over them to
8«e which one was right.
Q. Counted all the tickets clear back? — A. All the tickets we had gone over we
connted over again for that name.
Q. Do you remember what office it was you disagreed on? — ^A. No, sir; I do
not
Q. As long as you counted, state whether or not you and Mr. Gushing kept to-
gether.— A. We were together except, I think, twice; that one difference on one
man; but when we were through we were alike.
Q. You agreM and got together where you were off that one? — ^A. Yes, sir.
Q, How long did you count or tally? — ^A. Well, there were just three or four
tickets left when the polls closed at 5 o'clock, and I helped finish what was on
the table.
Q. But you didn't get through when the polls closed? — A. No, sir.
Q. About how many tickets did you tally, you and Mr. Gushing? — ^A. As near
as I can remember, we tallied 140 — about 140.
Q. Did you tally those votes honestly and correctly as they were read? —
A. Yea, sir.
Q. Did you give Glaude S. Gamey credit for every vote he received? — ^A.
Yes, sir.
Q. And John M. G. Smith likewise?— A. Yes^ sir.
Q. When 5 o'clock came or about that time and the polls closed, what did
you do? — ^A. I went home.
Q. That was the last you knew about it? — A. Yes, sir.
Gross-examination by Mr. Adams :
Q. So there were left all the ballots that had been voted there from the time
yon opened that ballot box and began counting, those you helped count, still left
there to be counted? — ^A. Yes, sir.
Q. You say that you assisted In counting about 140 of the ballots that were
oast there that day ? — A. Yes, sir ; as near as I can remember.
Q. That is all you helped count? — ^A. Yes, sir.
Q. Then somebody else perhaps took your place? — A. Yes, sir; I suppose so.
Redirect examination by Mr. Frank hausbb:
Q. When you tallied there in the afternoon you used a tally book like that
Exhibit 17?— A. Yes, sir; something like that
Q. Gan you tell by looking that over whether that is the one you kept or
not?— A. I don't think I could ; I didn't fill it out at all ; I simply made these
tallies — these straight marks.
Q. You put these down as they were read off to you? — ^A. Yes, sir.
Q. These figures in the column "Total straight votes" and "Total split
votes," you don't recognize that those are yours? — ^A. They were not down
when we got through counting ; they would not be put down until the close, or
the finish.
Q. When you left at 5 o'clock somebody else took your place?— A. Yes, sir.
HERMAN GULDE, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified as follows :
Direct examination by Mr. Matnabd:
Q. Where do you reside? — ^A. Second ward, Gharlotte, Eaton Gounty, Mich.
Q. How long have you resided here? — ^A. Twenty-five yeara
Q. Are you a married man? — ^A. No, sir.
Q. Do you live with your parents? — ^A. Yes, sir.
Q. On West Lawrence Street? — ^A. Yes, sir.
Q. Were you present at the general election held in the second ward of the
dty of Gharlotte on Tuesday, the 5th day of November, A. D. 1912?— A. I was.
402 CARNEY VS. SMITH.
Q. Did you hold any official position on the election board?— A. I wa« one of
the clerks.
Q. You beard the testimony of Mr. Preston, the other clerk?— A. Yes. sir.
Q. Do you remember anything about what was done with the books that
nj^fat when you got through with the election? — ^A. I dou*t remember anytbtng
particularly except the sealing ; I remember that very distinctly.
Q. How many packages were sealed up?— A. Two. I think, besides fJie baUol
boxes; tihey were sealed.
Q. Do you know what was put In those enveloiies tliat were sealed up?— A.
I don't know positively ; no.
Q. Do you know what was done with them? — ^A. I remember that Mr. Barber
took one to the clerk's office ; I suppose he went up there ; he went upstalra
Q. You don't know what he did with it, but he went upstairs?— A. Yea. sir.
Q. What became of the other one? — ^A. I dont remember.
Q. Did you see a package given to Judge Dann ? — A I don't remember ae^ng
that
Q. Do you know what was done with the boxes? — ^A. They were left there in
the corridor. I think.
Q. Did you see or know of there being a vault in the corridor that opened
Into the corridor? — ^A. Yes, sir.
Q, Did you see it oi)en during the day the election took place? — ^A. Why, it
was open.
Q. You have been In there frequently? — A. Yes, sir.
Q. There is a vault there that opens into that corridor? — A. Yes, sir.
Q. At the west end of the rooms was a door also that opened Into the room
underneath? — A. I think there is a door there.
Q. Did you see that open? — A. No, sir; I did not.
Q. I show you Exhibit 25 and ask you whose handwriting that is? — ^A. That
is mine.
Q. I show you Exhibit 26; whose handwriting is that? — A. That is also mine.
Q. I show you Exhibit 15 and ask you whose handwriting that is? — ^A. I
don't know; that is not mine.
Q. The tally-sheet book, Exhibit 25, Is the one you atxy you kept? — A. Yes, sir.
Q. During this election in question? — ^A. Yes. sir.
Q. Now, when you tallied a vote for Representative in Gongreas, I aak you,
witness, what was first done? — A. On the first of the tally?
Q. Yes; begin at the beginning. — A. After the box was opened we sorted tout
the ballots, the straight Republican, Democratic, and so forth, and the split
tickets, and I think we had a pile that had no heading at all : then we entesed
the total straight votes in the tally book opposite the name of each caiidldate;
then we put down the total split votes in the tally book opposite the name of
each candidate; then proceeded with the split ballots.
Q. I suppose you picked up the ballot, under this system, that had no heading,
no mark at the head of it. and there was a check opposite the name of Claude
S. Carney; you would plus Carney and th&i would mean a vote for him?—
A. Yes, sir.
Q, Where would It be recorded, on the niH>er or lower line? — ^A. On the upper.
Q. It would make no difference whether there was a tally up here or not, It
would be credited to him If It were cast flor him ? — A. Yes, sir.
Q. Under this system? — ^A. Yes, sir.
Q. In the first place, then, you gave each candidate the entire vote that his
fMirty cast in counting up the splits and straights? — ^A. Yes, sir.
Q. Then you commenced to read off, did you? — A. Yes, sir.
Q. And when it was shown that he had lost a vote on his own ticket some-
body struck him off : you would say minus John M. C. Smith one and would set
down a minus? — A. On the lower line, opposite John M. C. Smith's name.
Q. Suppose John M. C. Smith got a vote from some other party, you would
say plus John M. C. Smith, and that would be a vote in addition to what he
had received when you first credited him here? — A. Yes, sir.
Q. Where would you place that? — A. On the upper line.
Q. Did you do that? — ^A. Yes, sir.
Q. Is that the way you made that record there? — ^A. Yes, sir.
Q. When you got through how could you arrive at what the total would be
of the total votes received at that election by him? — ^A. Why, the total— tike
the total straight votes and the difference between the plus and minus votes
whichever — if It was a plus number of votes in his favor we added that to the
straights, and if it was a minus against him we took away from ttie vstas.
CARNEY VS. SMITH. 40S
Q. Just to make that computation, how many votes were marked for John M.
C. Smith first— straight votes?— A. Sixty-five.
Q. After you counted up those 65 Republican votes — Republican votes at the
head that didn^t have any mark on them? — ^A. Tes^ sir.
Q. How many split Repul^lican votes? — ^A. Fifty-nine.
Q. Add them together; how many would that be if he got no more thaa had
been lost? — ^A. One hundred and twenty-four.
Q. He was credited with that amount of votes to start with, so many straight!*
and so many splits? — ^A. Tes, sir.
Q. When they began to read the Republican tickets and somebody had heem
foolish enough to vote against John M. C. Smith, that was marked minus. How
many minus votes were there? — A. Eight.
Q. Take that from the 124. — A. One hundred and sixteen.
Q. That would be 116 votes he got from the Rei>ublican Party? — ^A. Yes, sir.
Q. Now, he got the other votes from other parties? — ^A. Yes, sir.
Mr. Adams. I object to counsel leading the witness. He works the thli^
out mathematically, and puts the words in the witness's mouth, and asks him
to answer yes or no; and I take an exception to that mode of examination. If
it is so plain that anybody can figure it out the witness should figure it out
find not counsel; and I take an ex(*ei)tion to couusers way of examining the
witness.
Mr. Maynard. It appears in the record from the testimony already that tb»
witness has alresidj- figured it out and h:is set down the result, and nobody has
been able to show a mistake of any kind against it. What I have asserted has
been proven by half a dozen witnesses, and It is only preliminary to what I
am going to af^k.
Q. What are those called? — A. Plus votes.
Q. How many did he get? — ^A. Forty-five.
Q. What did you do with the 45?— A. We added that to the 116.
Q. That made how many? — A. One hundred and sixty-one.
Q. Was that the method of computation which you used in all of these com-
putations?— ^A. Yes, sir.
Q. Take Claude S. Carney's vote. How many straight votes did you give
him in the first place? — A. Forty -eight.
Q. How many siilit votes did you give him? — A. Sixty-four, maldng 112.
Q. Democratic votes? — A. Yes, sir.
Q. Now state whether Claude S. Carney lost any of those. — A. He lost 20.
I That would leave him how many Democratic votes? — ^A. Ninety-two.
\. Did he get any votes from other parties? — ^A. He got 15.
\. That would make him how many In all? — ^A. One hundred and seven.
Q. Was that set down? — ^A. Yes, sir.
Q. Take the next fellow below; how many straiglits did you give him?—
A. Three.
Q. How many were added to him by splits? — ^A. Total splits, 12.
Q. That would make how many? — ^A. Fifteen.
Q. Did he lose any? — ^A. He lost five.
Q. Did he gain any?— A. No, sir.
Q. Then the net result was what? — ^A. Ten.
Q. Take the next one; how many straights were given to him? — ^A. Three.
Q. How many splits? — A. Forty-one.
Q. Did he lose any of them? — ^A. Yes, sir.
Q. How many did he lose?— A. Twenty-five.
Q. How many did he gain?— A. He gaiiied three.
Q. Then the result was what? — A- Twenty- two lost
Q. Twenty-two was the total? — ^A. Twenty-two the total.
Q. Did you act as clerk of that election board at any other time?
Mr. Adams. Objected to as incompetent and immaterial.
A. Not until that day.
Q. Did you work all day? — A. Yes, sir.
Q. Were you there when they counted up at nl^ht? — ^A. Yes, sir.
Q. Who read the tickets?— A. Mr. Knowles.
Q. Was there anybody else there when Mr. Knowles was reading? — ^A. Mr.
Nichols was there and, I think, Mr. Barber part of the time.
Q, Mr. Knowles read the whole of the ballots?— A. I ttiink so; lAat is, all
the large ballots ; not the small amendment ballots.
Q. CoBld you hear what was read?-~A. Yes, sir.
404 CARNEY VS. SMITH.
Q. Now, Mr. Guide, I wish you would state whether or not you kept an
honest and correct count and tally of those as read to you. — ^A. I did.
Q. What is your occupation? — A. I am a wheelwright.
Q. Where are you en^nged? — A. On Main Street, across from the courthouse.
Q. What are your politics? — ^A. I am a Democrat.
Q. How long have you been a Democrat? — ^A. Well, ever since I have voted.
Q. Did you hear any electioneering by any person there in the voting place
that day? — ^A. No, sir; I did not.
Q. Did you hear anybody there in the voting precinct urge any voter to vote
for any particular or specific penwm? — ^A. No, sir.
Q. When they were counting up at night, did you hear John C. Nichols at-
tempt to influence the count in -iny way? — A. He attempted to state how a
vote should be read on circuit court commissioner.
Q. How was that? — ^A. A couple of times, I think, on account of there being
a blank opposite his name on the Democratic ticket there was a misunder-
isitanding as to how the vote should be read ; one voter put a cross opposite
Mr. Dean's name without scratching off the name op])oslte.
Q. M^hat did he claim should be done in such a case? — ^A. When there was
a cross opposite Mr. Dean's nanie and neither of the two other two names
were scratched off, he said that vote should not be counted for Dean. And
the Siime way when there was a cross opi)08lte either of the Republican candi-
dates' names, he claims that Dean should not benefit by that vote.
Q. Did he state why? — A. Because no choice had been shown; it did not show
who was voted against.
Q. Was tJiat caused by more than one candidate running for the same office?
Mr. Adams. I object to that as calling for the conclusion of the witness, and
as Incompetent and calling for what John C. Nichols said.
Q. Was that caused by more than one candidate running for the same office?—
A. Why, there were two candidates on the Republican ticket and just one on
the Democratic ticket.
Q. That is on which ticket? — A. What do you mean?
Q. Which ticket was Dean on? — A. On the Democratic ticket.
Q. Which ticket was it that had two candidates for the same office? — A. The
Republican ticket.
Q. How many candidates were there on the tickets running for that office ^—
A. Well, three on the ballot. If that is what you mean.
Q. Was there a place to write in the name? — ^A. Yes, sir.
Q. Above the ballot — above Dean's name? — A. I think above; I am not sore.
Q. Do you know who was oppoi^te Dean's name? Whose name appeared
opposite his? — A. I think it was John C. Nichols and Frank Dean.
Cross-examination by Mr. Adamb:
Q. One of the Inspectors of that election. In the second ward, that day,
handed out the ballots on one side of the booths, while another received the
ballots on the opposite side of the booths and put them In the ballot box?—
A. Tes, sir.
Q. Did you go to your meals that day? — A. I went down town for my meals.
Q. M'ent to dinner? — A. Yes, sir.
Q. What time did you go?— A. I think it was about 11.30.
Q. Were you there when Mr. Hamilton left? — ^A. I don't know.
Q. Were you there when Mr. Barber came in and began to officiate there?—
A. I couldn't say as tO that.
Q. Why do you say that? — A. I could not see across to the other side of the
booths at all.
Q. They were on the other sides of the booths? — ^A. Yes, sir.
Q. So that at any time while the votes were being cast and were being put in
the ballot box were all the inspectors on one side of the booth ? There was no
time when both Inspectors were on one side or the same side of the booths?—
A. I couldn't say as to that; they were not sitting on the same side at one
time; they might have been standing.
Q. At no time that day were the ballots handed out and received from tbe
voters ; handed out to the voters and received from the voters and put in tbe
ballot box on one and the same side of the booth? — ^A. No, sir.
Q. The booths were between the man who handed out the tickets to the voters
when they came in and before they went In the booths to mark them and the
man who received the ballots from the voters and put them in the ballot box^-
A. Yes, sir.
CABNEY VS. SMITH. 405
Q. Yon were so situated, as one of the clerks of the election, that most of the
time that day you could see both inspectors passing out ballots to the voters
and the inspector who received the ballots from the voters? — ^A. No, sir; I could
not
Q. And that was so of the other cleric I suppose ; at the time he was situated
Che same way you were, so he could not see the inspector who received the
ballots from Uie voter? — A. If I remember he sat nearer to the end of the booths
than I did and could see more on Uie other side than I could.
Q. Still he could not see both of those men when handing out the ballots
and when taking them from the voters f^om where he stood? — A. I don't be-
lieve he could, not from where he was sitting.
Q. Did you go out to supper? — ^A. Yes, sir.
Q. What time? — ^A. Some time between 4 and 6 o'clock.
Q. Before the polls closed?— A. Yes, sir.
Q. Did you go out in the afternoon after you began the count?— A. No, sir.
Q. Not once? — A. No, sir.
Q. This Nichols that you say examined the tickets there that night when Mr*
Knowles was calling them off was the John G. Nichols who was a candidate on
the Republican ticket that was voted there that day for the office of circuit
court commissioner? — ^A. Yes, sir.
Q. Now, if you had a ballot there that day that had no cross at the head of
any one of the tickets that were on that ballot, but which did have a cross op-
posite some one or more of the names of the candidates on one or more of the
tickets on that ballot that day, what did you do with that ballot?— A. In the
first place we put that in a separate pile so that would not be in the straight
Republican and not be a split ticket.
Q. So they were not counted in the plus or minus proposition? — ^A. Yes, sir.
Q. How were they counted in the plus and minus proposition? — ^A. When
they were read off, what votes the candidates received on those tickets were
counted plus.
Q. You counted plus and minus only on those tickets that were voted at the
head, didn*t you; had some splits somewhere? — A. No, sir.
Q. If you had a ticket that had no mark at the head, It would not come
under either of those heads? — ^A. What heads?
Q. It would not come under the straight or split tickets? — ^A. No, sir.
Q. In determining the splits, yon did not put down such a ticket as that,
did you? — A. Not in determining the splits, we did not
Redirect examination by Mr. Maynabd:
Q. You are referring to the tickets that had nothing about them to indi-
cate at the top which party they had voted for. What did you do with that
ticket? — A. We laid it in a pile by itself, and when we came to read it or credit
the different votes received by any candidates on that party on the plus list
opposite their names.
BVANDER DUNNING, being first duly sworn to tell the truth, the whole
truth, and nothing but the truth, testified in behalf of the contestee as fol>
lows:
Direct examination by Mr. Mayivard:
Q. Where do you reside, Mr. Dunning? — A. Charlotte.
Q. Which ward?— A. The third ward.
Q. Charlotte, Eaton County, Mich.? — ^A. Yes, sir.
Q. What is your age? — ^A. I am 65 past.
Q. What is your occupation? — ^A. I am a farmer.
Q. Where is your farm? — ^A. About 2 mlies west of Charlotte.
Q. Do you hold any official position in the city? — A. I am one of the alder-
men from the third ward.
Q. You have a residence here in the city? — ^A. Yes, sir.
Q. Whereabouts do you live; out on the farm or in the city? — A. In the
city.
Q. Were you alderman of the third ward of the city of Charlotte nt the
genera] election held in that ward on the 5th day of November, A. D. 1912? — ^A.
Yes, sir; I was.
Q. Who was the other inspector of election besides yourself? — ^A. Mr. I>owdi-
gan was the other alderman.
Q. John D. Dowdigan? — A. Yes, sir.
40% CARNEY VS. SMITH.
Q, In that ward did you appoint a clerk who acted as inspector of electUm
With you? — A. Yes, sir; we appointed an extra Inspector.
Q. Who was that?— A. George Barney.
Q. What did you do at the election? — ^A. I Issued the tickets.
Q. You issued the ballots? — A. Yes, sir.
Q. What did Mr. Barney do?- A. He deposited the ballots in the box.
Q. What did Mr. Dowdlgan do?— A. He initialed the ballots.
Q. Was there any Democratic inspector of that election there?— A. No, air.
Q. Was there anybody that acted in that capacity — I mean challenger?— A.
Yes, sir; two.
Q. Who? — ^A. George Gardiner and Jake Moyer.
Q. Was Mr. Gardiner in the polling place any? — A. He was, quite a good
deal ; Mr. Gardiner was there at times when Mr. Moyer was not there.
Q. Was Mr. Moyer there from the time the polls closed? — A. Yes, sir; he was
there from the time they closed, and Mr. Gardiner was, too.
Q. Was there any representative of the Republican Party there? — A. Yes,
sir; Mr. Sawyer — William Sawyer, I think.
Q. He is the man that manages the gas office? — ^A. Yes, sir.
Q. If you hadn't got the name right. — A. Yes, sir.
Q. Witness, did you at any time during the progress of that election, during
the day, hear anyone electioneering for John M. C. Smith for Member of
Congress?— A. No, sir; I did not.
Q. Did you mention his name there during the day in the i)olling place? — '
A. At one time.
Q. About what time of day was that? — A. Perhfti)s in the afternoon.
Q. To whom? — A. Well, it was casually that I mentioned it; it was not in
any political
Q. (Interrupting.) Tell it Just as it occurred. — ^A. It was in the case of sobm
man who came in for some
Q. (Interrupting.) Who was he? — A. Mr. Tracy, a very old man.
Q. You had been well acquainted with him? — ^A. Yes, sir.
Q. What occurred? — A. The circumstances were that I was standing there
and I had some tickets, and I had to stand up to Initial them, and both of those
old men were in and were at my back, and the door swung around and hit me.
I was initialing these tickets, and these men were in here, and Mr. Moyer was
on the side and I was there, and Mr. Dowdlgan and I heard them talking th«pe
and turned around, and as I turned around I heard this old man say, " I want
to vote for Mr. Storrs and somebody else," and I says, " How about J. M. C. ? "
and he says, " Yes ; that is the man.*'
Q. Was that the only time you said anything al)out it? — A. Yes, sir.
Q. I>o you know who he was talking to? — A. No, sir.
Q. Did you see his ballot at all? — A. No, sir; I did not, I was not in Oae
booth ; was not where I could see his ballot.
Q. Do you know whether he marked it or not? — A. I don't know anything:
about it.
Q. Did any voter apply to you or ask you for instructions of any kind tbmt
day about marking his ballot? — A. No, sir.
Cross-examination by Mr. Adams:
Q. Where did you stand with reference to where the man fltood who paflSed
out the ballots to the voters? — A. I was on the opposite side; on the west aide
of the booth.
Q. The man who handed out the ballots was on the east side? — A. Yes, sir.
Q. You could not see him? — A. No, sir.
Q. W^ho was handing out the ballots? — A. Mr. Dowdlgan.
Q. Mr. Dowdlgan was a Republican? — A. Yes, sir.
Q. And you were a Republican? — A. Yes, sir.
Q. And the other inspector, Mr. Baniey, was a Republican? — A. Yes, sir.
Q. You selected Mr. Barney as an extra inspector, did you? — A. Yes, sir.
Q. Did the people there nominate him as an inspector? — A. No, sir.
Q. When was Mr. Barney sworn in as an inspector? — A. When all of us ware
sworn in, in the morning.
Q. He was sworn in by the city clerk? — A. I don't recall who swore us la
there : we were all sworn in together, and I had the impression that It was Mr.
Dowdlgan or Mr. Moyer who swore us in ; that is my Impression.
Q. Is that your Impression now?— A. Yes, sir.
Q. Your recollection is he swore you in personally? — A. We were all sworn
in together.
GABNEY VS. SMITH. 407
Q. Your recollection is who swore you in? — A. Mr. Dowdlgan or Mr. Meyer.
Q. He didn't swenr himself in, did he, after he swore you in?— A. They
swore in Mr. Moyer.
Q. Who was Mr. Moyer? — ^A. He was one of the clerks and a notary public.
Q. So one of the clerks was Mr. Moyer? — ^A, Yes» rir.
Q. M-o-y-e-r? — A. Yes, sir.
Q. There was no such man who was clerk of that election that day. — ^A. I
be?: your pardon, I have got the wrong election for Mr. Moyer; Mr. Fisher
was the one.
Q. That was some other election? — A. Yes; I have been to so many.
Q. You are always on the board here? — A. Not alwaya
Q. Most always? — A. No, sir; only when I have been alderman.
Q. How long have you been alderman? — A, Six or seven years.
Q. Were you not on the election board before you were alderman? — ^A. Not
in the city.
Q. Pertiaps when you didn't live in the city? — ^A. No, sir; I have lived In
the city between 13 and 34 years.
Q. You have been on the election boards out In the country? — ^A. Yes, sir; In
Carmel.
Q. You have always been a Republican? — A. Yes, air.
Q. You used to live In Carmel? — ^A. Yes, sir.
Q. And used to be on the electon boards when out there? — ^A. Yes, sir; a good
many times; I was in the township for 16 years.
Q.' You were on the election board in Carmel for a number of years? — A.
Yes* sir.
Q. You were a Republican then? — A. Yes, sir.
Q. Now. George J. Barney — who mentioned his name as Inspector? — ^A. The
board, I presume; it was talked over with the board, and I suppose he was
chosen by the board.
Q. Have you any recollection about it? — ^A. No, sir; I know he was in-
spector
Q. There were some people there when the polls opened, I suppose? — ^A.
There always are; yes, sir.
Q. There were that morning of November 5? — A- Yes, sir.
Q. No one who were not going to act on that board proposed the name
of George J. Barney there — ^made a motion that he should be one of the In-
spectors of election, did they?— A. No, sir.
Q. No such a motion as that was made? — A. Not that I heard.
Q. The iieople were not asked whether they wanted Mr. Barney; the people
there, aside from those on the board as inspectors or clerks, were not asked
to make any motion to have Mr. Barney act as inspector of the election, were
they?
Mr. Maynabd. Objected to as incompetent and immaterial.
A. I didn't hear them.
Q. You were there?— A. Yes, sir.
Q. So you and Mr. Dowdigan decided to have George J. Barney act as in-
spector without referring it to the bystanders there who were there at that
time, and you had Mr. Barney sworn in as an Inspector of that election? — A.
Yes sir.
Q. That is the way It was done?— A. Yes, sir.
Q. That Is correct, isn't It?— A. Yes, sir.
Q. You stated that nobody asked for Instructions in that ward that day? —
A. Not that I heard.
Q. I understood you to say that nobody asked for insti'uctions?— A. I didn't
say so.
Q. Do you mean to say so now? — A. No, sir; I do not.
Q. You didn't hear anybody ask for instructions, that is the way you want
to be understood? — A. Yes. sir.
Q. Is that right?— A. Only the man that was in the booth, that one.
Q. Did vou go to lunch at noon? — ^A. Yes, sir.
Q. What time did you go? — A. Somewhere about half past 11 or 12 o'clock.
q! Did the rest of the board go at the same time?— A. Yes. sir.
Q. Did any of the other insi)ectors go when you went?— A. Yes, sir.
Q. Who went the same time you went? — ^A. Mr. Barney.
Q. Mr. Barney and you went at the «ime time? — A. Yes, sir.
Q. That left one Inspector there? — ^A. Yes, sir.
Q. That was Mr. Dowdigan?— A. Yes, sir.
408
CARNEY VS. SMITH.
i^Si^"^^!? *^ anybody voted when you and Mr. Barney wev away to yoor
u^Sf /i, Ki??1^*^° P"^*^ ^"* ^^® ^^"<>'s to the voters and also pnt tibem
Into the ballot box?— A. I will have to answer yes. ^^
Q. There was no other Inspector there to do it?— A. No, sir,
diS;e?SlfJouS-r No."^^^^^^ *"''^''^' "'^^'^ ^^" ^^^ ^'' ^*"^^y '^^'^^ ^
Q. You got back about' what time?— A. We were gone about 20 minutes.
Q. Did you go home to dinner?— A. No, sir.
Q. Did Mr. Barney?— A. No, sir; he went with me.
Q. You both went together?— A. Yes. sir.
*i.^' y,?". ^®^® ^°^ ^^^^ ^ minutes?— A. About that, I don't thlnlt more
than that.
Q. How far did you go to your dinner?— A. Across the street and two or
three doors down.
Q. Did you have a regular dinner or just a lunch?— A. A regular dinner.
Q. You went there and got back in 20 minutes?— A. They had It all ready as
soon as we got there.
Q. Whether you had it arranged or not. you left the voting place, you and
Barney, und you went to the place where you got your dinner and got your
mnner and came back to the voting place and was only gone 20 minutes?— A.
Yes, sir; about that.
Q. When you got back, did Mr. Dowdigan go to dinner?— A. Yes, sir.
Q. Were you and Mr. Barney there all the time that Mr. Dowdigan was gone
to dinner?- A. Yes, sir.
Q. Did you go to supper that night?— A. Yes, sir.
Q. Who went at the time you went to supper?— A. I think— I will not be
positive because
Q. (Interrupting.) Do you think Mr, Dowdigan went?— A. I think one of the
clerks.
Q. What time did you go to supper?— A. About perhaps 4 o'clock, or a little
after.
Q. The polls hadn't closed yet?— A. No, sir.
Q. When you got back were both Mr. Dowdigan and Mr. Barney there? — ^A.
Yes, sir.
Q. Did they go to supper at any time before or after you did?— A. Yes, sir.
Q. Did they both go together?— A. I think not.
Q. Did they go after you had been to supper? — A. Yes, sir.
Q. Which one went first?— A. I think Mr. Dowdlgan's place I took.
Q. You passed out the ballots?— A. Yes. sir.
Q. Who received the ballots? — ^A. Mr. Barney.
Q. After Mr. Dowdigan got back did Mr. Barney go to supper? — ^A. I think
that — I can't tell you that
Q. You don't remember? — ^A. No, sir.
Q. Now, this old gentleman. Tracy, came In, or after he went in the booth,
you heard him say that he wanted to vote for whom? — A. He wanted to vote
for Mr. Storrs, our sheriff here.
Q. And you said to him, " How about J. M. C. Smith? "—A. I heard it and I
says, *• How about J. M. C? " He says, " That is the man."
Q. About J. M. C, you menat John M. C. Smith, who was a candidate for
Congress? — A. I meant John M. C. Smith ; yes, sir.
Q. You didn't hear any electioneering there that day? — A. No, sir: I didn't
hear any at all.
Q. Who was Mr. Sawyer; what was he doing there that day? — A. He was
the Republican challenger.
Q. Did he have any written credentials from the Republican committee? —
A. Yes, sir.
Q. You saw them, did you?— A. Yes. air.
Q. Did he hand thcni to anyone? — ^A. Yes, sir ; to me.
Q. What did you do with it?— A. I put it in a book there.
Q. Who was It signed !)y? — A. By the Republican chairman.
Q. Who was that?— A. I think, Mr. Boyle.
Q. Mr. Mosler, what was he? — A. A Democratic challenger.
Q. Mr. Gardiner, what was he? — A. He was a challenger.
Q. Mr. Gardiner was a John M. C. Smith man? — A. I don't know about that
Q. You don't know about that? — A. No, sir.
OABNBY VS. SMITH. 409
Q. The gatekeepers were Republicans?— A. I don't know; I don't know that.
Q. Was there a man named Storrs a gatekeeper there that day? — ^A. Yes, sir.
Q. Was he a Democrat, a Republican, or a Bull Mooser?— A. I don't know
what he ixras
Q. Do you know Thomas CJolUns?— A. Yes, sir.
Q. Do you know whether he was a Republican? — A. I don't know what his
Doli tics were*'
Q. You stated that Mr. Barney received the ballots?— A. Yes, sir.
Q. All the time would you say?— A. Yes, sir.
Q. Did you receive ballots any time that day?— A. No, sir.
Q. Do you know whether Mr. Dowdigan received any ballots and put them
in the ballot box at any time when you were there?— A. Not that I know of.
Q. What time did you get through counting after you closed the polls? —
A. I think about 1 o'clock in the morning.
Redirect examination by Mr. Maynabd :
Q. Mr. Dunning, when you were counting up who read the ballots? — A. Mr.
Do wdicra n
Q. What did you do while they were counting?- A. I looked over most of
the time.
Q. Did anybody else look over? — A. Yes. sir; Mr. Gardiner and Mr. Mosler;
they watched the count
Recross-examination by Mr. Adams:
Q. What did you do with the books you had there in which you kept the
election results? — A. We put part of them in the box.
Q. Part of them in the box ; what ones did you put in the box? — ^A. The poll
book and the tally sheet in the box with the ballots.
Q. Then what did you do with the box? — A. We sealed it up.
Q. Locked It and sealed it up? — ^A. Yes, sir.
Q. Now, you had two ballot boxes that were kept there that day? — ^A. Yes, sir.
Q. Only two. And two statement books and two tally-sheet books? — ^A.
Yes, sir.
Q. Those were the only books; the only two kept there that day? — ^A. Yes, sir.
Q. What books did you put in the ballot box?— A. We put those two that
belonged in the box.
Q. What ones? — ^A. The statement book and the tally sheet In there.
Q. You are sure about that, are you? — ^A. I am not sure, no; I might be
mistaken.
Q. Well, now, let me call your attention here A. I can't see without my
glasses.
Q. Well, put them on. I show you an envelo[)e addressed to the board of
county canvassers, care judge of probate or register of probate. — A. Yes, sir.
Q. This envelope contains one return or statement of the votes of the result
of the election held in the third ward, city of Charlotte, county of Eaton, State
of Michigan. Now, then, I have just taken out of that envelope three books,
poll book, tally-sheet book, and statement book of the election held on the 5th
day of November, 1912, at the third ward, Clwirlotte, Eaton County, Mich. —
A. Yes, sir.
Q. Each one of them has written on the front page of it just what I read
there?— A. Yes, sir.
Q. You put those books, didn't you, in the envelope that night and sealed it
up?— A. I didn't put them in there.
Q. You saw them put in? — A. I don't know whether I saw them put in; I
was there when they were put in, perhaps.
Q. I show you another envelope; this envelope contains election returns as
follows: One tally sheet, one poll book, and a statement of the vote, the result
of the election held In the third ward of Charlotte, Eaton County, Mich.,
addressed to the county clerk of Eaton County, Mich., and I pull out of that
envelope three books: one is a poll book of the general election held November
5, 1912, in the third ward of the cAty of Charlotte.— A. Yes, sir.
Q. The next is a statement of the vote of the general election held November
5, 1912, third ward, city of Charlotte, Eaton County, Mich. — A. Yes, sir.
Q. This is the tally-sheet b(X)k of the general election held November 5. 1912,
third ward, city of Charlotte, Eaton County, Mich.? — A. Yes, sir.
Q. There are two poll books, two statement books, and tally-sheet books of
your election that you handed in there on the 5th day of November, 1912?— A.
Yes, pir.
410 CARNEY V9. SMIXU.
Q. If thnt i8 so. you could not have put in a tally sheet in the ballot box,
could you ; you didn't have any to put in?— A. They were put in afterwards.
Q. There being but two poll books in these returns that I have just shown
you and two tally-sheet books and two statement books, you didn't have any
poll book nor any tally-sheet book nor any statement book to put in the ballot
box there that night when you left the election? — ^A. We put them all in.
Q. In where? — ^A. In the box.
Q. You didn't have any, did you — didn't have any of those books to put in? —
A. I think we did.
Q. Where did you get them V — A. The books were made there we put in the box.
Q. You only had two poll books and two tally-sheet books? — ^A. Yes, sir.
Q. And two statement books? — ^^V. Yes, sir.
Q. And your board returned them, respectively, to the county clerk and
judge of probate, which being true, where did you get the books you put in
tlie ballot box, if you put any in? — A. They are correct, are they not?
Q. I didn't ask you about the correctness ; where did yon get the poll book or
any other book you put in the ballot box that night?— A. If we didn't put them
in they were not in.
Q. I understood you so say that you did put some in. — A. We did put some
books in there.
Q. Did you put the po'l books In the ballot box? — ^A. I presume so.
Q. Did you? — A. I will not swear, I dldr.'t put them in there.
Q. Did you see one put in? — A. The clerks of election did, I presume, what
wag right.
Q. Did you see the poll book put in the ballot box? — ^A. No. sir; I will not say.
Q. Did you see the tally-sheet book put in? — A. No, sir.
Q. Nor the statement book? — A. No, sir; I will not say.
Q. You win not say you did? — ^A. No, sir.
Q. You don't know whether the poll book and the tally-sheet book or the
statement book or any one of the three were put in the ballot box that night? —
A. No, sir ; they were not put in right
Q. You don't know whether the poll book, the tally-sheet book, or the state-
ment book or any one of the three were put In the ballot box that night? — ^A. I
know all the books we had were put In the box.
Q. You say you know they were? — A. All the books we had there were put
in the box.
Q. You say yon know that all the books were put in the ballot box? — ^A. We
had two ballot boxes there.
Q. I am talking about the box in which you had deposited that day the
votes for the different candidates for the different offices; that is the box I
am talking about? — A. We didn't put all the books in that box.
Q. Did you put any books in that box? — ^A. Yes, sir.
Q. What books? — A. The proper books.
Q. What books did you put in that box ? — A. The proper books that belonged
there.
Q. Give the names of them? — ^A. I don't know which two. the proper books
that belonged there were put in there.
Q. Did you know that the law required you to put in a tally-sheet book and
a poll book in the ballot box? — A. Yes; and I bet you we did so.
Q. If you only had two poll books there that day and two tally-sheet books
and two statement books, where did you get the poll book you put In there? —
A. We put the poll book in the box where it belonged.
Q. Then, how did you get two poll books to return here, one to the judge
of probate and one to the county clerk, if you put one in the ballot box? — ^A.
We put the proper books in the ballot box.
Q. You don't answer the question. Where did you get the one you put in the
ballot box? — A. We made It, of course.
Q. Did you make one there that day? — A. That day we made it there and
that night.
Q. You must have got the form for making It somewhere? — ^A. If we didn't
have the books, we didn't get them ; that is all.
Q. You only had— you were furnished — the books were furnished you — ^the
poll book and tally-sheet book and the statement book were furnished your
board by whom? — A. By the county clerk.
Q. The county clerk only furnished for your election that day, November 6,
1912, two poll books, two tally-sheet books, and two statement books — I want to
get at the facts — is that true? — A. I presume so.
CABNEY VS. SMITH. 411
Q. So, by the retnms of the election yon held there, that yon helped to conduct
on the 5th day of November, 1912, it appears in these envelopes here, in the
one addressed to the cotmty clerk, is a iioll book, a tally-sheet book, and a state-
ment book made oot by yonr board that day. It appears in the one addressed to
the board of county canvassers in care of the judge of probate that there is a
statement book, a tally-sheet book, and a poll book returned by your election
board of that No.vember 5, 1912, election, so that your board returned to the
county clerk and judge of probate for the board of county canvassers two poll
books, two tally-sheet books? — A. We put them in there.
Q. You put them there just the same, though the public authorities did not
furnish you any to put there? — ^A. We had those books that we made out there
that went into the box.
Q. You put them all in the box? — ^A. We put the proi)er ones in one box and
the balance in the other box.
Q. What ones did you put in the ballot box In which you put the ballots you
counted that day? — A. The poll books and the tally-sheet books.
Q. Where did you get your poll book from? — ^A. Made It, of course.
Q. What do you mean? — ^A. We had two clerks, and they made two.
Q. Did you have any printed forms from which you made the poll books? —
A. No.
<Q. Then how can any poll books be here and still have been returned by your
board to the county clerk and the judge of probate? They couldn't be in two
places very well. — A. I will bet you if you open the box you will find them there.
Q. You would lose your bet — A. I don't think it. I know we put them 1b
there and locked them up and sealed them up, and I don't tliink that box has
been opened yet.
Q. How do you suppose they got out of the ballot box? — A. I don't know,
miless some Democrat stole them out.
Q. Where is the box?— A. In the city hall.
Q. How do you know it is in the city hall? When did you see it last? —
A. Since election.
Q. How do you know it is in the city hall? — ^A. It should be there; it should
be in the vault I am pretty sure it is there. I am pretty certain I will not
mislead when I say it is there now.
Q. Who took the returns away that night, if any were taken away, when you
got through? — A. They were not taken away that night
Q. Did your election board make any returns to the county clerk of that elec-
tion held there November 5, 1912? — ^A. The clerk, I expect, did; we turned them
over to the derk.
Q. Did your election board make out any returns of that election to be sent
to the judge of probate for the board of county canvassers? — A. Yes, sir.
Q. Put them in an envelope? — A. Yes, sir.
Q. You put a statement book, a tally-sheet book, and a poll book in the
envelope? — A. I don't know; I am not positive about that. We put in what
was proper to be put In.
Q. You don't know what they put in, do you? — ^A. No, sir.
Q. And you made out another envelope to the county clerk? — A. Yes, sir.
Q. Do you know what returns you put in those? — ^A. The proper books were
put In there.
Q. I ask you to tell me the names of the books? — ^A. The clerks put those books
in there. I am sure they were put in right.
Q. Tell me the names of the books you put in the envelope addres-sed to the
county clerk. — A. The poll book and tally sheet probably.
Q. Do you know whether they were put in that envelope or not? — A. I think
they were.
Q. You say there should be a poll book and a tally-sheot book? — A. Yes, s't.
Q. Was that all in the one addressed to the county clerk, as you understood? —
A. The proper books were put in there.
Q. Was there a tally-sheet book and a poll book; were they the only books,
as you understand it, that you were required to put in the envelope you sent to
the county clerk? — A. The proper books were put in there.
Q. Will you answer my question? — ^A. I have.
Q. I asked you whether the tally-sheet book and the poll book were the only
books to be put In the envelope addressed to the county clerk? — A. I have an
swered that question. They were put in ; all the books proper to be put In there.
Q. Did yon put a statement book in the envelope? — ^A. I think so.
412 CARNEY VS. SMITH.
Q. Did you put a statement book in the envelope addressed to the board of
county canyassera? — A. I think so.
Q. Did you put a tally sheet In the envelope addressed to the board of county
canvassers? — ^A. We put the proper books In the envelopes.
Q. What books did you put in there; whether they were proper or improper;
did you put a tally-sheet book in there? — ^A. We fixed those envelopes and books.
Q. Did you put a tally-sheet book in the envelope that you addressed to the
board of county canvassers in care of the judge of probate?— ^A. Yes, sir.
ERNEST G. PRAT, being duly sworn to testify the truth, the whole truth,
and nothing but the truth, testified on behalf of the contestee as follows :
Direct examination by Mr. Maynabd:
Q. Where do you reside? — A. In Windor township; that is my residence; I
am in Charlotte.
Q. What county? — A. Eaton County.
Q. On a farm are you? — ^A. I am a farmer.
Q. Have you held any county offices? — ^A. Yes, sir.
Q. What? — ^A. I was clerk of Baton County nearly four years.
Q. That included when? — ^A. My term of office expired; my resignation was to
take effect on the 3d day of November or on the 4th day of November. 1912.
Q. What year?— A. 1912.
Q. Do you know when the general election of 1912 took place? — A. On the 5Ui
day of November, 1912.
Q. When did your term expire ; when did your resignation take effect? — ^A. My
resignation was handed to the circuit Judge on the 2d day of November.
Q. When to expire? — A. To expire on the 4th ; to take effect upon the 4th of
November.
Q. The day l)efore election? — A. Yes, sir.
Q. Do you hold any official position now? — A. Yes, sir.
Q. What is it? — A. I am the representative from Baton County in the legis-
lature.
Q. When were you elected? — A. On the 5th day of November, 1912.
Q. Were you here in the city of Charlotte on the day of the general election,
held on Tuesday, November 5, 1912, in the second ward? — ^A. Well, I got into the
city after dark.
Q. Were you here that day? — ^A. About 5 o'clock ; yes, sir.
Q. Were you in tliat voting precinct? — A. Yes, sir.
Q. Were you out of town during the day? — A. Yes, sir.
Q. Where did you go? — A. To Windsor Township to vote.
Q. Did you vote? — A. I oaBt my vote; yes, sir,
Q. When you returned to Charlotte, did you go to the voting precinct of the
second ward here in the city of Charlotte? — A. Yes, sir.
Q. Were you present when they completed the counting of the votes? — ^A. Very
soon after the vote was completed ; I was there two or three times during the
counting, while they were counting.
Q. Did you on that evening, at any time, take away a bundle of ballota with
you? — A. Yes, sir.
Q. What were they? — A. They were Instruction ballots.
Q. Where did you take them? — A. Well, I took them; I kept the returns of
tlie second ward there at that time on one of those ballots, then I took that one
with the others I gathered up, and I think I went into the clerk's office, and
then took those instruction ballots over to the Republican headquartera
Q. Did you let anybody else have any of those ballots at any time that even-
ing?— A. Well, I couldn't say.
Q. What were they delivered there for? — A. For the purpose of taking the
votes.
Q. Keeping a tally of the votes? — A. Yea, sir; of the votes that were cast
as they were reported over the telephone that evening.
Q. Now, did you take any ballots other than instruction ballots away from
that booth that evening? — A. No, sir.
Q. Did you handle any ballots that were unused there that day at that polling
place? — A. No, sir.
Q. Mr. Pray, I understand that Mr. Carney sets up by his notice of contest
that you resigned from your olflce as county clerk, and that there was some
conspiracy between yourself and John C. Nichols, that John C. Nichols might
be appointed in your place, so that he could handle those returns and help
CARNEY VS. SMITH. 418
defraud Mr. Carney in some way with the returns ; I ask you whether anything
of that kind did exist between you and John C. Nichols? — A. There did not.
Q. Did you have any understanding with John C. Nichols prior to your resig-
nation about his taking your place? — ^A- Yes, sir.
Q. What was it? — ^A. After I talked with Judge Smith — I could not give the
date, but I am quite positive it was the last day that Judge Smith held court.
I think there was a chancery matter on, that was all — and I Informed Judge
Smith that I expected, on account of a constitutional provi^on regarding those
matters, that I would hand in my resignation.
Q. As county clerk? — ^A. Yes, sir. Of course, there was some conversation
between the court and myself at that time as to what the constitutional pro-
vision was, and I am sure that I do not call to mind just how Judge Smith
spoke.
Mr. Adams. I object to the witness stating what Judge Smith said or what
this witness said to Judge Smith as hearsay and incompetent.
A. " If you drop out of the ** — Judge Smith said this — " If you drop out,
the most natural thing for me to do would be to appoint John C. Nichols as
your successor to fill your unexpired term," as he was at that time my deputy.
I recollect distinctly of the court saying that Nichols was more familiar with
the duties of clerk than any other person in and around the county seat — some-
thing to that effect I am not sure, but I am quite positive that I did not see Mr.
Nichols that day; but within a day or two I saw Mr. Nichols — that is, he came
into the office, and I told him what the court had said, and I am quite positive
I asked him if
Mr. Adams. I object to the conversation that the witness is about to relate
with Mr. Nichols as incompetent, irrelevant, and immaterial and hearsay.
A. (continuing). He would accept the appointment. I think he said there at
that time that he would if the judge saw fit to appoint him.
Q. Was there any agreement between you and him in regard to election mat-
ters?— ^A. No, sir.
Cross-examination by Mr. Adams :
Q. Mr. Nichols was your deputy before you resigned? — ^A. Yes, sir.
Q. He was the only deputy you had? — A. No, sir; I had a young lady, who
was the active deputy in the office.
Q. Mr. Nichols had not been your active deputy, had he? — ^A. Well, no, sir;
not active in the office.
Q. The deputy county clerk, the one who was active in the office at that time,
was who? — ^A. Miss Edna Lohr.
Q. She was the active deputy employed in your office right along, doing the
work under you in the office for how long? — ^A. Why, about five months, I
think, four or five months.
Q. Did she become one of your deputies — or before that, before she became one
of your deputies — did you have some other deputy actively engaged in the
ofllce? — ^A. I think along about February or the latter part of January or the
1st of February my deputy, who had been with me three years, resigned.
Q. Who was that?— A. Mrs. Fairchilds.
Q. Mrs. Fairchilds had been your active deputy for about three years before
Miss Lohr became your active clerk? — ^A. Yes, sir.
Q. Then Miss Lohr became your active deputy clerk? — ^A. I was without an
active deputy clerk for two or three months, and Mr. Nichols helped me out at
times when the board of supervisors was In session, and at court time until
Miss Lohr was engaged by me.
Q. Where were you on the 5th day of November, 1912, out in Windsor Town-
ship?— A. Yes, sir.
Q. That was your voting place? — A. Yes, sir.
Q. What time did you go out there on that day? — A. I went out — I started
away from Charlotte a little after noon on the 4th and stayed over night at my
father's.
Q. So that you were out there In Windsor Township the day of election, No-
vember 5, 1912, up to what time? — ^A. Well, I don't know just what time I left
Dimondale, but I came to Potterville with my wife and son in time for them to
take the 4.17 train for cWrlotte here.
Q. Was Dlamondale in Windsor Township?— A. Yes, sir.
Q. Where was the election held? — A. In the village of Dimondale.
Q. You got back to Charlotte about what time on the 5th of November, 1912? —
A. Half past 6 o'clock I should say.
414 CARNEY VS. SMITH.
Q. Were the polls closed then in the second ward? — A. Yes, sir: they were
counting when I went down to the i)o]ls the first time, I know.
Q. Did you visit any of the other polling places in the city outside of the
polling: place in the second ward tlxat day? — A. I am not quite sure that I weat
into the polling place in the third ward or stepped up on the porch as I came
from the house to the office.
Q. Did you draw the salary or any part of the salary of county derk after
November 4, 1912?— A. No, sir.
Q. Or did you have any arrangement to draw any of it? — ^A. No, sir.
Q. You haven't drawn any of it up to this time? — A. I should think about
that
Q. (Interrupting.) I mean that accrued after November 4, 1912? — ^A. No, sir.
Q. No fees or salary have you drawn that accrued in the county clerk's oflSce
from and after November 4, 1912? — ^A. No. sir.
Q. That is correct? — ^A. That is correct.
Q. Your resignation, you say, you handed in when? — ^A. I tbink the 2d day of
November, but I could not be positive now.
Q. Do you know when John C. Nichols was appointed by the Judge county
clerk? — A. Why, my resignation, I believe — I believe Judge Smith sent the ai)-
pointment of Mr. Nichols back to me, at the same time he returned my resig-
nation with his acceptance,
Q. Judge Smith's acceptance of your resignation? — A. Yes, sir.
Q. He sent them to you ? — A. Yes, sir ; they were addressed to me.
Q. What did you do with them? — ^A. I opened the letter; I was in the clerk's
office.
Q. Where did you finally put them? — A. They were filed.
Q. Where? — A. In the office of the clerk.
Q. The county clerk? — A. Yes, sir.
Q. Then did John C. Nichols begin to act right away? — ^A. Well, I suppose
that Mr. Nichols was there on the 4th ; I was not during office hours at all.
Q. When did you cease to act as county clerk? — A. I should say the last
duties I performed as county clerk were Saturday nigbt. The M, or 3d, was
Sunday, and there was no bui^ness on Simday.
Q. Theft you didn't perform any duties as county clerk after Saturday nigbt
prior to November 5. 1912? — A. No, sir.
Q. You still retained the keys to the oounty clerk's offioe after Saturday nigbt,
November 2, 1912? — A. Yes, sir; I had the keys to the office.
Q. How long did you keep that key? — ^A. I think I turned ttae keys over
to
Q. (Interrupting.) The question is how long you kept them? — ^A. Up until
the first — up until the last, about the 30th of December, I think.
Q. Up to the 30th of December, 1912?— A. Yes, sir; I had the key to die
clerk's office.
Q. And went in whenever you wanted to? — ^A. Yes, sir; I could go in when
I wanted to.
Q. On election day when you got back from Windsor Township you gathered
up some instruction ballots that were handed out there. yo« aay? — A. They
hadn't been handed out : they were scattered around.
Q. Where did you get them? — A. Well, I think one of the Inspectors of Sec-
tion handed me several that were still lying on the table in the polling place.
Q. Where? — A. In the second ward.
Q. Those were the ones that you had furnished as county clerk? — ^A. Yes, air;
I don't know as to that.
Q. Were they not. as a matter of fact, instruction ballots that you, as one of
the public authorities had furnished to that election boart? — A. I couldn't
sny.
Q. They were printed on what, yellow? — ^A. Yes, sir; on y^low paper ana
marked " Instruction ballot."
Q. The official ballots I am talking about that were used by the different elec-
tion boards in Eaton Oounty, Mich., for titiat election of November 5, 3L912, were
procured by thow election boards, where? — A. The board of election comB^s-
sloners prepared them.
Q. Were they not distributed through your office as county clerk?— A. Yee,
8ir; the official ballots were.
Q. The ballots that the voters voted were the offidal ballots?— A. Yes, fir.
Q. Those 'were required by law to be distributed through your office?— A
Yes. sir.
CABNBY TS. SMITH. 415
Q. You had all tfae election ballots put up in pacfeageB for the various voting
places in the county? — A. Yes, sir.
Q. Then somebody, either the supervisor of the township or the clerk, I
suppose, came in from the various townships and you banded the ballots for
that particular township to the clerk or supervisor? — ^A. Yes, sir; or other re-
sponsible person.
Q. That is the only way the official ballots for the voters used to vote could
be procured, was it not? — A. Yes, sir.
Q. The ballots that relate to the general election of November 5, 1912 — the
official ballots I am talking about — that were used in the City of Charlotte,
where were those official ballots obtained from? — A. From tfae same source.
Q. From your office? — ^A. Yes, sir.
Q. You furnished the tally-sheet books, the statement boolts, and the poll
books for all of these various precincts in the county of Eaton for that November
5. 1912 election, didn't you ?— A. Yes, sir.
Q. They were all alike, were they not? — ^A. Yes, sir.
Q. All those books? — ^A. Yes, sir.
Q. For each voting place you furnished two poll books, two statement books,
and two tally-sheet books, didn't you? — A. Yes, sir.
Q. AnJ no more? — A. That is all.
Q. Now, these tally-sheet books, statement books, and poll books were likewise
banded out under authority of law through you as county clerk of the county of
Eaton, were they not? — ^A. Yes, sir; In the same package.
Q. So that if any statement book or any tally-sheet book or any poll book was
used and put in the ballot boxes on the 5th day of November, 1912, either the
tally-slbeet book, the poll book, or statement book that were obtained — they were
obtained otherwise than by lawful authority? — ^A. That we didn't get through
the clerk's office?
Q. From anybody else in the county of Eaton not authorized to hand out any
tally-sheet books or statement books or poll books. Do you know of any one else
that was authorized to hand those out on the 5th day of November, 1912? —
A. Not that I know of.
Q. I sappose you liave been a R^ublican in politics for a number of years? —
A. Yes, sir.
Q. How long? — ^A. Since I can remember.
Q. Your age is what?— A. Thirty-eight.
Q. The official ballots hitnded out at these various voting places wer« printed,
were they not? — ^A. Yes, sir.
Q. Who printed them for this county? — A. The Charlotte Tribune printed the
ballots for the general election, but I could not be positive whetiier they printed
the ballots for the — ^it was between the Charlotte Republican and the Charlotte
Tribune ; one printed the ballots for the primary election and the other for the
general election, I think ; the Tribune had one and the Republiean had the other.
T think the Tribune printed the general election.
Q. That is the one on which the Representative for Congress had their names
printed? — ^A. Yes, sir.
Q. And that was the only ballot voted at that election that had any officers
on; they were all on the same ballot? — ^A. Yes, sir.
Q. All the different tickets were all on the same ballot? — A. Yes. sir.
Q. They had to go through your office, if a legitimate ballot? — A. Yes, sir.
Q. Now, Mr. Pray, you did not publicly announce your resignation until
when? — ^A. I don't know that it was ever publicly announced.
Q. You didn't announce It until about the 12th of November, did you? — ^A. I
never announced it, to my knowledge ; never publicly announced it.
Q. On election day you did not tell it around any that you had resided? —
A, Yes, sir.
Q. Whom did you tell it to? — A. Why, I don't know that I can recall ; a num-
ber of different people knew It.
Q. It did not appear in the newspapers In Charlotte, did It? — ^A. No, sir; nor
in the county.
Q. It did not appear in any newspai)er in the county up to as late as Novem-
ber 12, 1912?— A. I am of the impression that the Bellevue Gazette published it
before that ; I couldn't say as to the date.
Q. If the Bellevue Gazette published it before the 12th of November, 1912,
when did it publish It as near as you can recollect? — ^A. I couldn't tell you ; I
can tell by the flies of the paper.
416 CARNEY VS. SMITH.
Q. Do yon say it had been published In the BeUeme Gazette as early as the
8th day of November, 1912? — ^A. I don't remember.
Q. Isn't it your recollection that it was not published as early as the 8th day
of November, 1912, even in the Bellevue Gazette?— A. I couldn't say; I am of
the impression — I can tell by looking at the papers.
Redirect examination by Mr. Maynard:
Q. Do you know of any connection, either directly or indirectly, between your
resignation as county clerk and the candidacy of John M. C. Smith for On-
gress? — ^A. I do not. I would like a chance to explain one thing here with
regard to the filing of the resignation, and that is this: When I received the
letter from Judge Smith with the resignation and his acceptance upon it I was
sitting at the desk in the clerk's office, and I opened the letter and read the
resignation and acceptance, and turned them over and took the filing stamp and
stamped the filing and date on and took the pen and started in to write my
name. I was not county clerk at that time; I knew that as well as anybody:
but I did this involuntarily, just as I had filed hundreds of other papers; and I
wrote as the resignation shows, ** Ernest G. " and started in to write " Pray "
and put a capital " P " there, and stopped because it came to me that I was not
county clerk and I had no right to sign it as county clerk. I would like to
make that explanation. I left it just as it was. I could easily have erased my
name there, and Miss Ix>hr was in the office at the time and I could have easily
had her sign It as deputy county clerk. I at that time had no idea that a con-
gressional contest would be on, but I did expect that there might be a protest
filed against me as representative.
Q. For what reason? — A. As being an incumbent of the clerk's office.
Q. When you ran for the office? — ^A. Tes, sir; and the thought passed through
my mind that I would leave that just exactly as it was and I would be able to
explain it just how that was done. It was left just as it was and Miss Lohr,
the deputy clerk, placed the paper in the vault and indexed it on the general
index.
Recross-examination by Mr. Adams:
Q. Ton didn't cross your name off; you left it on the paper you just have been
describing?— A. No, sir; I left it as it was save that letter " P."
Q. You didn't have Miss Lohr put any filing on it? — ^A. No, sir; the date is
on there.
Q. Now, Mr. Pray, these ballots you handed out for the November 5, 1912,
election were all the same size, were they not? — ^A. Oh, yes; certainly.
C. A. POPE, being first duly sworn to testify to the truth, the whole truth,
and nothing but the truth, testified on behalf of the contestee as follows:
Direct examination by Mr. Maynabd:
Q. Mr. Pope, where do you reside? — ^A. In the fourth ward of the city of
Charlotte, county of Eaton, State of Michigan.
Q. What is your age?— A. Thirty-eight.
Q. What is your ocaipation? — ^A. I am a groceryman.
Q. What official position do you hold in the city? — ^A. I am alderman of the
fourth ward.
Q. Were you at the general election held in the fourth ward of the city of
Charlotte on Tuesday, the 5th day of November, 1912?-— A. Yes. sir.
Q. What official position did you hold at that time on the board of election?—
A. I was one of the Inspectors.
Q. As the alderman of that ward? — ^A. Yes, sir.
Q. Who was the other alderman? — ^A. James Greenman.
Q. Do you know Mr. Johnson, of that ward? What his name is, Frank?—
A. I don't know his given name.
Q. Frank Johnson?— A. Yes, sir.
Q. Was he present there at that election precinct?— A. Yes, sir.
Q. Did you give any instructions to any voter there that day as to how to
mark his ballot?— A. I did; yes, sir.
Q. How many? — ^A. Two.
Q. Did you know them? — A. I knew one of them ; the other man was not so
well known to me.
Q. Who were they? — ^A. One man's name was Bd. Speyer; the other man's
name I don't know.
CABNEY VS. SMITH.
417
Q. How long have you known Ed. Speyer?— A. Probably seven or eight years.
Q. Was he well acquainted with you?— A. Yes, sir.
Q. Did he ask you for assistance?— A. He did; yes. sir.
Q. What do you know about his physical condition?— -A. I know that he was
unable to handle his hands.
Q. How long had he been that way?— A. Ever since I have known him; he
told me he had always been that way.
Q. Well, was he an educated man?— A. No, sir; he Is not.
Q. He can't read nor write?— A. No, sir.
Q. How long have you known of that? — A. Practically all the time I have
kQown him.
Q. Now, witness, this man who asked you to assist him In marking his bal-
lot, do you know what his politics were?— A. Yes, sir.
Q. What were they?— A. He was a Democrat,
Q. Did he ask you or suggest to you that he wanted to split his ticket in
any way? — ^A. No, sir; he did not
Q. I will ask you whether you tried to induce him to vote for any person? —
A. No, sir.
Mr. Adams. I move to strike that out as the conclusion of the witness and as
Incompetent
Q, Did you, at that election, urge or suggest to anyone to vote for any par-
ticular candidate on any ticket? — A. No, sir; I did not
Q. Do you know of any electioneering being done at the polls that day? —
A. No, sir.
Q. Did you hear Mr. Johnson's testimony when he was here before this com-
missioner?— ^A. No, sir; I did not
Q. He said there was a discussion between yourself and him as to whether It
would be right for you to call the attention of those who were on the FTOgre»-
slve ticket to the fact that they had no ticket of their own In the county ; was
there any talk of that kind? — ^A. That conversation came up the day before
election ; It was not on the day of election.
Q. Did you do anything of that kind on election day? — A. No, sir.
Q. Do you know anything about a challenge that Mr. Johnson made there of
« voter? — ^A. Yes, sir.
Q. Wliat do you know about that? — ^A. I know it was a man named Perry
that started in through the gate and got partially In, and Mr. Johnson stepped
up to him and told him that he would not be able to vote in that ward ; that he
was not a voter In that ward. At that time Mr. Greenman came back and
started out of the gate, and he agreed with Mr. Johnson. I think the man said
that he had not been In the ward long enough and did not want to vote, and
turned around and went out
Q. Was there anybody that urged his right to vote? — ^A. No. sir.
Q. He said he didn't want to vote, that he was satisfied. Did he try to get
in and vote afterwards? — ^A. I didn't see him afterwards.
Q. Was there any talk between the election board and Mr. Johnson and your-
self in an insulting way toward him because he had challenged this man? — ^A.
Why. Mr. Greenman made the remark to Mr. Hughey shortly after that, that
if they persisted in challenging Democratic votes they would not elect very
many of their men.
Q. Would you say that was In earnest? — A. That was as a Joke, and Mr.
Hughey considered it as such.
Mr. Adams. I move to strike out what Mr. Hughey said as .Incompetent and
as the conclusion of the witnesa
Q. Was Mr. Hughey the Democratic challenger? — ^A. One of them.
Q. And Mr. Johnson the other? — ^A Yes, sir.
Q. They had two of them, did they? — ^A. Yes, sir.
Q. Did the Republicans have any challenger there? — ^A. Not that I remem-
ber of.
Q. Did they show you their credentials? — A. Yes, sir.
Q. And they remained throughout the day? — ^A. Mr. Hughey remained up to
the time the polls closed and exchanged with Mr. Sowers.
Q. Then who remained? — ^A. Mr. Sowers and Mr. Johnson; I think Mr.
Johnson remained.
Q. Mr. Sowers remained there during the canvass of the votes? — ^A. Yes, sir.
Q. What have you to say as to whether Claude S. Oamey was given all the
votes that were cast for him in that ward at that election? — ^A. He certainly
was.
286—13 ^27
418 GAHITBY VS. SMITH.
Q. Were there nny more votes given to John M. Q. Smith than were honeitly
cast for him? — A. No, sir.
Q. Did you hear Mr. Oreenman say anything about voting for John M. G.
Smith, or sometWng of that kind; did yow hear anything of that kind? — ^A. I
didn't hear anything of that kind,
Q. You told about one that you knew tiiat was unable to read and write and
that he was physically unable to hold a pen to mailc a paper; what was bis
name? — ^A. Mr. Speyer.
Q. Yon spoke of one other who had to have assistance; who was that? — ^A. I
can't recollect his name.
Q. What was his difficulty? — ^A. He told me that he was unable to read and
write and went on to explain that he never had an opportunity to go to school.
Q. Who was he? — ^A. I don't remember the man's name.
Q. Was that the only man that you assisted with the exception of Mr.
Speyer? — A. Yes, sir.
Q. That was assisted at the i)oll8 that day? — A. That is all I remember.
Q. Did the Democrats challenge anyone but the one man named Perry? — ^A.
That Is all.
Q. How long have you been on the election board in the fourth ward of the
city of Charlotte?
Mr. Adams. Objected to as incompetent and immaterial.
A. About two years; nearly two years.
Q. Were you acquainted with the voters that voted there that day? — ^A. Yes*
sir.
Q. Now, was there anyone challenged aside from Mr. Perry? — ^A. I don*t think
there waa
Q. Was there anyone who voted there that day who was not a legal voter in
the ward that you know of?
Mr. Adams. Objected to as incompetent and immaterial and the conclusion of
t3ie witness.
A. Not anyone that I know of.
Q. Was there any dlstin1)ance about the polls that day at all? — ^A. No, sir.
Q. It was a quiet election? — A. Yes, sir; I called it so.
Cross-examination by Mr. Adams :
Q. You say you knew oil the voters that voted there that day? — ^A. I djdn^t
■ay I did.
Q. Did you? — ^A. No, sir.
Q. Yon didn't know them all?— A. Not all of thent
Q. You can't recall "the name of that other fellow who asked for instruc-
tions?— ^A. No, sir.
Q. Did you gfrve him instructions? — ^A. Yes, sir.
Q. Where did you give him Instructions? — A. In the booth.
Q. Did you administer any oath to him? — ^A. No, sir.
Q. He was not physically disabled? — ^A. No, sir.
Q. Did you administer any oath to him at all before you gave him instmc-
ti«B8? — ^A. Ko, sir.
Q. Did you mark his ballot? — ^A. No, sir.
Q. You instructed him about marking his ballot, did you? — A. Yes, sir.
Q. In the booth? — ^A. Yes, sir.
Q. Before doing that and up to the time he deposited his vote in the ballot
box, you didn't administer any oath to him at all? — ^A. No, sir.
Q. There was no other reason why you gave him any instructions, except be
told you that he didn't imderstand the Bnglish language? — ^A. No, sir; he said
he couldn't read nor write.
Q. That was the only reason you gave him those instructions? — ^A. Yea, sir.
Q. He voted there, did he. at that election that day? — ^A. Yes, sir.
Q. His vote was put in the ballot box? — ^A. Yes. sir.
Q. Now, this other man — Speyer, I think you said his name was, Mr. Pope —
was a man about how old? — A. He was a man about 50 years old, I think.
Q. You saw he was on that day when he came in to vote a cripple?— A,
jces, sir.
Q. Both hands? — A. Hft has got a kind of paralysis, or something of that
sort — palsy ; he shakes all over.
' Q. Sort of a palsy? — A. Yes, sir.
Q. Both hands shaking? — ^A. Yes, sir.
Q. And did on that day when he came in there? — A. They did all the time.
CARNEY VS. SMITH. 419
Q, Did yoo ever see him write? — A. No, sir.
Q. You never dW? — ^A. No, sir.
Q. Do you know whether he could or not? — ^A. No; he doesn't write.
Q. Do you Icnow of your own knowledge wliethw he can write or not; you
never saw him write? — ^A. I know this much : He is a man that can't take out
his pockethook, and a great many times I have taken it out for him and put
it back for him.
Q. You have done that? — ^A. Yes, sir.
Q. You didn't administer any oath to him? — ^A. No, sir.
Q. But you marked his ballot for him, did you? — A. Yes, sir.
Q. Did he have at that time good eyesight? — ^A. Why, I think he haa; t
Chink he can see all right
Q. Did he walk with a cane? — A. No, sir.
Q. Or a crutch or anything? — ^A. No, sir.
Q. He could walk without any assistance? — ^A. Yes, sir.
Q. He came to the polls without any assistance? — ^A. Yes, sir.
Q. And walked around town before that election without assistance, of your
own personal knowledge? — ^A. Yes, sir.
Q. I suppose you don't know; you didn't ke^ the tally books or eltftier of
them? — ^A. No, sir.
Q. You don't know what tallies the clerks put down, whether they tallied
correctly as the votes were called off of your own knowledge, do you? — A. The
only thing I would be positive of would be the straight votes, the number that
we counted then or the split votes.
Q. You didn't keep track of the split votes, did you, as they were counted off
thm that day? — ^A. I kept track of the head of the split votes.
Q. The other split votes you didn't keep track of on any pa];)er? — ^A. No, sir.
Q. You didn't carry them in your head for all those various candidates, did
you? — A. No, sir.
Q. When you got through with the election, whether the clerks had tallied
the vote correctly in every instance, you couldn't say as to that, could you, of
your own knowledge? — ^A. I suppose they did ; I didn't put them down.
Q- Did you go to your meals that day? — A. I went to dinner.
Q. Did you go to supper?— A. No, sir.
Q. How did you get your supijer? — ^A. Our sup|)er was brought in.
Q. The whole board had supper there? — A. Yes, sir.
Q. What time did you go to dinner? — ^A. Twelve o'clock.
Q, How long were you gone? — ^A. Possible half an hour.
Q. Did any of the other inspectors go to dinner at the same time yon did? —
A. I think not; I think we divided; I am not sure about it; I think one at a
tlpae went.
Q. You were an alderman on the 5th day of November, 1912? — ^A. Yes, sir.
Q. Who was the other alderman there in that ward that day? — ^A. James
Greenman.
Q. I notice a man named Porter acted as inspector there? — ^A. Yes, sir.
Q. Was he an alderman? — A. No, sir.
Q. Was he nominated there by the voters, not the officers of the election, in*
speetoT^ or clerks, for the position of inspector of that election? — ^A. No voten
were there when the polls were opened.
Q. Mr. Porter was there, but he was not an inspector under your city chBf-
ter?— A. No, sir.
Q. You Just swore him In? — A. Yes, sir.
Q. What time did you open the polls? — ^A. At 7 o'clock.
Q. Eastern time or standard time? — ^A. Standard time.
Q. Where did you get your election ballots from that you used there that
day? — ^A. I suppose they were brought there by the city clerk; they were ttBn
when I arrived.
Q. You don't know who brought them there? — ^A. No, sir ; I do not
Q. You said you instructed two voters? — ^A. Yes, sir.
Q. And no more? — ^A. That Is all.
Q. You were a Republican on the 5th day of November? — A. Yes, sir.
Q. And were elected alderman on the Republican ticket? — ^A. Yes, sir.
Q. Was Mr. Greenman a Republican? — A. Yes, sir.
Q. Was Mr. Greenman a Republican on the 5th day of November, 1912? — ^A.
Yes, sir.
Q. What were the politics of Mr. Porter? — A. He was a Progressive.
Q. Was he a Progressive on the 5th day of November, 1912? — ^A. Yes, sir.
420 CARNEY VS. SMITH.
Q. The Progressives didn't have on their ticket — on the ticket they voted
there at that election — ^any county officers' names? — ^A. No, sir.
Q. And the Republicans were endeavoring to get all the Bull Moosers you
could to vote the Republican county ticket, were you not? — ^A. I don't know as
we were; no. I presume you are speaking of the election board?
Q. Well, I am speaking of the Republicans generally in this locality. — ^A. I
think we were; yes, sir.
Mr. Maynabd.
Q. Mr. Porter was a candidate on the Progressive ticket for a city office?—
A. Yes, sir.
Mr. AnAMS.
Q. Mr. Porter, the man who acted as one of the inspectors there in that ward
on November 5, 1912, had been a Republican before, hadn't he? — ^A. Yes, sir;
I think he had.
Q. And before the election of November 5, 1912, he became a Bull Mooser?—
A. Yes, sir.
Redirect examination by Mr. Maynabd:
«
Q. Who read the ballots when you counted up? — A. Mr. Greenman read part
of them and I read part of them.
Q. When he read them, what did you do? — A. I was looking over his shoulder.
Q. Do you know whether he read them correctly or not? — ^A. Yes, sir.
Q. When you read thems did you read them correctly? — ^A. Yes, sir.
J. B. DOWDIGAN, being first duly sworn to testif^r to the truth, the whole
truth, and nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Maynabd :
Q. Where do you reside? — ^A. Third ward, Charlotte.
Q. What is your age? — ^A. I am 43.
Q. How long have you lived in the city? — ^A. Nearly 10 years.
Q. Do you hold any official position in the city? — A. I am alderman In the
third ward.
Q. How long have you held that position? — ^A. It will be 2 years in April.
Q. Were you present at the general election held on Tuesday, November 5,
1912, in the third ward of the city of Charlotte, Eaton County, Mich.?— A. Yes,
fldr; I was.
Q. What official capacity did you hold? — A. I was one of the inspectors.
Q. Inspectors of the election? — ^A. Yes, sir.
Q. Witness, did you hear the testimony of Mr. Mosier? — ^A. No, sir; I did not
Q. He testified when voters wanted to be assisted you would open the door
on one side and go in, and Mr. Johnson on the other, and that there was no
chance for him to get in with four of you crowding the booth; now, was there
anything of that kind took place that day that you saw? — ^A. No, sir.
Q. Of crowding in the booths with voters? — A. No. sir.
Q. Who was there to assist voters if they had to have assistance? — A. Why,
I was on the inside, where the voters came in, and handed the ballots out to
them, and they would turn to me for assistance.
Q. You mean to go in the booths and mark the ballots with them who asked
Instructions? — ^A. Yes, sir.
Q. Did you go in the booths and mark any ballots for any voter that day?—
A. I didn't mark any ballots ; I went in the booths, I think, twice.
Q. Not more than that? — A. I will not be positive; I am sure of twice, and
It might have been three times.
Q. Not to exceed that much; not to exceed three times? Now, did you hear
the testimony of Mr. Dunning? — A. I heard part of it.
Q. Do you have any recollection of that occurrence? — ^A. In regard to Mr.
Mosier?
Q. Yes. sir; did you hear that? Do you know what took place there?— A.
Yes, sir.
Q. State what that was. — A. Why, there was quite an old gentleman in the
booth, and he said he could not see to mark his ballot, and he wanted some
assistance, so I stepped in the booth from my side and called Mr. Mosier from
the other side ; he was pretty well over toward the side of the booth that Mr.
Mosier came In from. So Mr. Mosier stood there holding the door partly op«»
with his hand. And this man says — I asked him who he wanted to vote for, and
he says : " I want to vote the Democratic ticket and some of the Republican
ticket." I showed him the head of the Democratic ticket, and Mr. Mosier was
1^
CASNEY VS. SMITH. 421
■
looking on and Mr. Johnson was looking over Mr. Mosler's shoulder. Mr. John-
son was outside of the booth. I made a mark in the circle at the head of the
ticket, and I says, "Who else do you want to vote for?" and he says, "Mr.
Storrs." That was on the county ticket, and I showed him where Mr. Storrs's
name was, and he made the same marks there. I says, "Are there any others?"
He says, "Now, wait a minute." I says, "How about J. M. C. Smith?" He
says, " Yes; I want to vote for J. M. C. Smith," or words to that effect. That
was all that was said.
Q. Did you hear any talk during the day, any such remarks as stated by Mr.
Johnson on that occasion? — ^A. No, sir.
Q. Did you hear anyone about the polling place electioneering for any candi-
date?— ^A. No, sir.
Q. Did you hear any of those who were inside of the voting place urging or
suggesting to any voter that he support or vote for any particular candidate at
that election? — ^A. No, sir; nothing of that sort
Q. Was it a quiet election; no trouble about the polls? — A. No trouble at all;
everything went off smoothly and quietly.
Q. Did you remain there until the polls were closed? — ^A. I did.
Q. Did you assist in the count? — A. Yes, sir.
Q. What part did you take in the count? — ^A. I read the ballots.
Q. Did you read them all until completed? — ^A. Yes, sir.
Q. Did you read them correctly? — ^A. Yea, air; I believe I did; there was a
challenger looking over my shoulder every minute.
Q. Was Mr. Barney there? What was he doing? — ^A. He was one of the
inspectors.
Q. What was he doing while you were reading the ballots? — ^A. Why, when we
started to read the ballots he and Mr. Johnson counted up the suffrage ballots ;
then, too, I think he looked on while we were reading and remained until the
votes were counted.
Q. Who were the clerks of the election? — ^A. Claude Fisher and Ray Munger.
Q. Who was Claude Fisher? — ^A. He was teller In the Baton County Savings
BanlL
Q. Mr. Munger, what was his business? — ^A. He was in the hardware busl-
nesB here.
Q. Was it Kay Munger ?^-A. M-u-n-g-e-r.
Cross-examination by Mr. Adams:
Q. You stated that Mr. Gardiner was there that day? — ^A. Yes, sir.
Q. Mr. Gardiner was a John M. C. Smith man that day? — ^A. He was a pretty
rabid Democrat; I don*t know who he was for.
Q. I didn't ask you whether he was a Democrat. He was a John M. C. Smith
man that day? — ^A. No, sir; not that I know of.
Q. He has been a John M. C. Smith man, hasn't he, at the November 5, 1912,
election; hasn't he, to your knowledge? — ^A. No, sir.
Q. You don't know one way or the other about it? — A. I know he feels
friendly toward John M. C. Smith, but how he voted I couldn't "say.
Q. You read the ballots you say when the count closed? — ^A. Yes, sir.
Q. All the time?— A. Yes, sir.
Q. As long as there were any to read? — ^A. Yes, sir.
Q. I mean now the ballots on which the candidates for the various offices
appear; you read all those? — A. Yes, sir.
Q. What do you call electioneering? — A. Well, I should say soliciting; ask-
ing a man to vote for a certain man.
Q. Nothing else that you would incorporate in your definition of electioneer-
ing?— ^A. No, sir; I think not
Q. This man that you say you went Into the booth with with Mr. Johnson
and suggested that he vote for John M. C. Smith, what was that voter's name? —
A. I think it was Tracy.
Q. Did he vote for John M. C. Smith?— A. Yes, sir.
Q. He marked the ballot himself? — ^A. Yes, sir.
Q, Himself entirely? — A. Yes, sir.
Q. And you stood there and saw him mark it? — A. Yes, sir.
Q. He was In the booth when he marked it? — ^A. Yes, sir.
Q. Mr. Tracy was? — ^A. Yes, sir.
Q. Where were you? — A. I was in the booth on one side and Mr. Mosier on
the other side.
Q. You three fellows were in the booth? — A. Yes, sir.
422 CABNBY VS. SMITH.
Q. The booths are about 3 feet wide? — ^A. About that
Q. Mr. MoBler was partly in the booth? — A. He was not in entirely; ht
was standing in the door and holding the door partly open.
Q. Let's see; Mr. Tracy, he was In the booth? — ^A. Yes, sir.
Q. Ton were in the booth? — ^A. Yes, sir.
Q. Who was the other officer that was in the booth? — ^A. No other offiesr
was in the booth.
Q. Who else was in the booth; anyone else but Mr. Mosier? — ^A. He was
partly in the booth.
Q. Who was looking over Mr. Mosler's shoulder? — A. Mr. Dunning on tht
other side looking orer Mr. Mosier's shoulder.
Q. This booth was about 3 feet wide? — A. About 3 feet, possibly a little wider.
Q. Was It any wider than 3 feet? — A. I couldn't say.
Q. You can't recollect about that? — ^A. I never measured it
Q. You have some idea of distances, haven't you? — A. I should say about
3 feet.
Q. Did you go to your meals that day while on the election board — during iJk%
day you were on the election board? — A. Y'es, sir; I went out to dinner.
Q. How long were you gone to dinner? — A. Oh, about half an hour.
Q. Did anybody go to dinner with you — ^any of the election board or In-
spectors?— A. I can hardly remember whether any of them went to dinner at
the same time; one of the clerks went at the time I did.
Q. Did one of the inspectors go at the time you did? — ^A. 1 don't think so.
Q. When you got back were both the other inspectors there? — A. I think
they were; yes, sir.
Q. Did they go to dinner? — ^A. Yes* sir.
Q. Both at the same time? — ^A. I don't think so.
Q. You handed out the ballots that day up to the time the polls closed, all
the time? — A. Yes. sir.
Q. You were on which side of the booths in doing that? — ^A. On the east side.
Q. The other inspectors were not on the east side of the booths?— A. No, sir;
only as they came around there; they were part of the time.
Q. They were in marking and receiving ballots wholly on the other side of
the booths; the booths were between you? — ^A. Yes, sir.
Q. You had how many booths there, four? — ^A. As many as that; it seems to
me there were five.
Q. They occupied in length of space how much ; how many feet? — A. Oh, 15
or 16 feet.
Q. This man Tracy, no oath was administered to him as to his ability to read
or write the English language before you told him how to mark his ballot; be
was not sworn? — A. No, sir; I didn't think it was necessary.
Mr. Adams. I move to strike that out as not responsive to the question.
Q. I ask 3'ou for the fact whether any oath was administered there to Mr,
Tracy at any time before and including the time when you gave him iustruc*
tJons there that day, in that voting i)lace? — A. No, sir.
Q. You stated that you went in the booth twice; wIm> was the other man that
you went in with?— A. I think it was Mr. Cooper.
Q. Did you Instruct him?— A. I assisted him.
Q. How did you assist him?— A. I showed him where to mark his ballot and
It ts possible I marked his ballot; he was a very old man and very feeble; he
must have been upward of Hn, I should say.
Q. Bo you know whether he could read at that time?— A. Well, I don't know.
Q. Did he si)eak English?— A. Yes, sir.
Q. Plainly or brokenly?— A. Plainly.
Q. Did he claim to you .there that he could not mark his ballot?— A. He said
he could not see ; he could not see to mark it
Q. You could tell from looking at him whether he could see to mark his
ballot or not couldn't you ?— A. I would judge he could not ; he was a feeble
old man.
Q. What was there about his eyesight that indicated to you that he could
not see to mark his ballot?— A. His general appearance was that he was a vary
weak man; his eyes looked weak.
Q. They looked weak?— A, He said he could not see, and I believed he coald
not see.
Q. Did he wear any glasses?- A. No, sir.
Q. He didn't have any glasses on; spectacles or glasses of any kind?— A*
CARNEY VS. SMITH. 42S
Q. Was Mr. Johnson there when the polls opened? — A. No, ^r.
Q. You were a Republican on that day? — ^A. Well, I voted part of three tickets
that day.
Q. Your politics were Republican at that time; you were elected as a Re-
jrabllean alderman? — A. Yes, sir.
Q. Are yon still an alderman? — ^A. Yes, sir.
Q. You consider yourself a Republican in politics? — ^A. Yes, sir.
Q. Ajid you did on November 5, 1912? — ^A. Yes, sir.
Ql The returns that you made up there that night you sent the same in an
envelope addressed to the board of county canvassers in care of the judge of
Iifobate or register of probate, did you? — ^A. Yes, sir.
Q. You put the same returns in an envtiope addressed to the county clerk?—*
A. Yes, sir.
Q. Did you see those returns put in an envelope? — ^A. Yes, sir.
Q. You had two tally books there — two poll books and two statement books? —
A. Yes, sir.
Q. Which had been furnished by the county clerk of Baton County, and yon
put all those returns in those two poll books — ^two tally-sheet books and two
statement books in those two envelopes, didn't you? — A. I think the clerks put
them in the envelopes ; I directed them to read the instructions on the envelope
and to put the proper books in the envelope.
Q. You were chairman of that board? — ^A. I was chairman.
Q. Were you elected chairman there on that day, on the 5th day of November,
1912, after that board were sworn in an inspectors? — A. The charter makes me
chairman.
Q. Now. will you tell us — answer my question — ^were you elected by the In-
spectors of the election board there on the 5th day of November, 1912, the day
you were sworn in, to act as chairman of that board of election? — ^A. No, sir; It
was not necessary.
Mr. Adams. I move to strike out the answer as not responsive to the question
and the conclusion of the witness.
Q. Now, as a matter of fact, your board there that night of November 5, 1912,
put the poll book and the statement book and the tally-sheet book which had
been furnished your board by the county clerk in one envelope that was ad-
dressed to the board of county canvassers In care of the judge of probate or
register In chancery, didn't you? — ^A. I was thinking there were two books;
maybe the other one was put in.
Q. You put the statement book and the tally-sheet book and the poll book in
another envelope that was addressed to the county clwk? — ^A. Yes, sir.
Q. So you put all the official tally-sheet books, statement books, and poll books
that had been furnished your election board in those two envelopes before you
adjourned? — ^A. Well, if they are in there we put them in; yes. sir. I thought,
however, that one tally-sheet book was put in the ballot box.
Q. I have before you the envelopes that have been produced by the present
county clerk of your county of Baton, and one of these envelopes is addressed
to the board of county canvassers in care of the judge of probate or register In
chancery, and the other addressed to the county clerk of Eaton County, Mich.
Is it not a fact that there are now in these two envelopes one statement book,
one poll book, and one tally-sheet book that you gentlemen had there for use
by your board on November 5, 1912? Please look them over before you answer
the question. — A. I can't swear whether there was any other book left in the
ballot box or not.
(Last question read.)
A. They are all here.
Q. Those are the books that the board had there that day, are they not?
You recognize them, don't you, your writing, your signature wherever it ap-
pears here?
Mr. Frankhauseb. It is admitted that they were returned here from that
ward.
Q Those were the only books that were delivered to yonr bonrd — one poll
book, one statement book, and one tally-sheet book — that were delivered to your
board officially for that election of November 5, 1912 — that you have before
yon? — A. I believe that Is so.
Q. So you did not have any other official poll book or tally sheet book or
statement book to put in the ballot box. did you? — A. No, sir; I guess not; I
would not say we had. anyway.
424 GABNEY VS. SMITH.
By Mr. FsANKHArsEs:
Q. There were two Democratic challeugers there that day; was anybody
challenged? — ^A. No, sir.
(Whereupon the hearing was adjourned until 9 o*clock a. m. Thursday, March
27, A. D. 1913.)
Thursday, Maboh 27, 1913 — 9 o'clook a. u.
CIJ^UDE E. FISHER, being first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified on b^alf of the contestee as
follows :
Direct examination by Mr. Matnabd:
Q. Where do you reside? — ^A. Charlotte.
Q. Eaton County, Mich.?— A. Tea, sir.
Q. Which ward?— A. The third ward.
Q. What is your age?— A. I am 31.
Q. What is your occupation? — ^A. I am teller in a bank.
Q. Are you a married man? — ^A. Yes, sir.
Q. How long have you lived in Charlotte? — ^A. Nine years.
Q. How long have you been engaged in banking? — ^A. About six years.
Q. Were you present at the general election held in the third ward of the
city of Charlotte, Baton County, Mich,, on the 5th day of November, 1912?— A.
If that was the day of the general election, I was; yes, sir.
Q. Did you have any official position with the election board in that precinct
on that day? — ^A. I was clerk of the board.
Q. Who was the other clerk? — ^A. Roy Munger.
Q. Did you have charge as clerk of election any other election than that?
Mr. Adams. I object to that as incompetent and immaterial.
A. Yes, sir.
Q. More than once? — ^A. In this ward?
Q. Anywhere? — A. I served in tlie fourth ward.
Q. Were you there when the election closed? — A. Yes, sir.
Q, Who read the ballots? — A. Why, Mr. Dowdigan and Mr. Dunning.
Q. Did they read them out aloud? — ^A. I think both of them did, if I remember
right.
Q. You think they changed off? — A. Yes, sir; I think Mr. Dowdigan — I think
Mr. Dowdigan read most of them and I don't know but he read them all; I
couldn't tell you.
Q. Did you keep tally while they were reading? — ^A. Yes, sir.
Q. I will ask you whether you kept a correct tally? — ^A. Well, I suppose I did.
Q. When did you get to the polls that day? — A. I got there a quarter to 7
o'clock in the niominp.
Q. How long did you remain at the iwlls? — A. Until noon.
Q. Where did you go then? — A. I went down to a restaurant for dinner.
Q. On the opposite side of the street? — A. Yes; In the i>ost-ofllce block.
Q. How far from the voting place? — A. One block.
Q. On the Siime street? — A. No, sir; it is Main Street only on the opposite
side.
Q. The restfluraut was at the corner of what streets? — ^A. Main and Seminary.
Q. Which strwt (l<^es it face on? — A. East, on Main Street.
Q. The restaurant you were in, on which side of Main Street was that on? —
A. The east side.
Q. It was not a block from the polling place? — A. Xo, sir; it was on the
opposite side of the street.
Q. How long were yon Kone to dinner? — ^A. I think about 20 minutes.
Q. Whom did you leave in charge during the time? — A. Mr. Munger.
Q. Which went first, you or Mr. Munger? — A. Well, sir; I can't remember.
Q. Did you both leave at the same time? — A. No, sir.
Q. When you returned, how long did you remain? — A. I remained until after
the ix)lls closed at night and. I should ju<lge. about an liour after that
Q. What did you then do? — A. I went down to Prout's restaurant for supper.
Q. During the day of tins elertion did you know of. or hear, any electioneer-
ing in and around the \otiug place for any particular candidate? — ^^\. Why, once
during the dav — I can'l remember wlietlier in the forenoon or afternoon — ^Jin old
CABKET VS. SMITH. 425
gentleman came in, I don't remember hi8 name, and I don't remember whether
he was blind or whether he couldn't read, but he was a very old gentleman, and
he asked for instructions and he said, as I remember, that he wanted to vote
for Mr. Wilson and Ferris, and Mr. Dunning was standing on the outside of
the booth or door and he says, " How about J. M. G. ? *' I think those were his
words. That is the only thing I heard during the day that had anything to do
in regard to electioneering.
Cross-examination by Mr. Adams:
Q. Did you all go down to supper at the same time? — ^A. No, sir.
Q. Who went when you did? — A. I think Mr. Munger and Dr. Dowdlgan.
Q. What were the others doing when you left? — ^A. They were sorting the
ballota
Q. They had opened the ballot box before you went to supper after the polls
closed? — ^A. Yes, sir.
Q. They closed at what hour? — ^A. Five o'clock.
Q. Tou went about 6 o'clock to supper? — ^A. I think a little later than 6
0'dock.
Q. From 5 o'clock until a little after 6 o'clock they didn't have the ballots all
wrted? — A, No, sir.
Q. You opened the ballot box right after 5 o'clock immediately when the polls
closed? — ^A- Yes, sir.
Q. Tben you were sorting ballots from 5 o'clock up to the time you went to
pupper? — ^A. Yes, sir.
Q. Which you say was a ilttle after 6 o'clock? — A. As I remember; I
couldn't say positively, that is my remembrance of it
Q. When you went to supper, you and the other gentlemen, they were not
through sorting? — ^A. No, sir.
Q, Were they through sorting when you got back? — A. I don't believe they
were.
Q. Hadn't they commenced counting when you got back? — ^A. No, sir.
Q. But they had the ballots open ; the ballot box had been opened containing
the ballots for the candidates for Representative in Congress and all the other
ballots that related to any candidate for office? — A. Yes, sir.
Q. They had done this at 5 o'clock? — ^A. Yes, sir.
Q. Or very shortly after; how soon after would you say? — A. As quick as we
could get our booths down.
Q. Probably 15 or 20 minutes? — ^A. Yes, sir.
Q. The ballots were spread out on the table when you went to supper, and
they were counting them? — ^A. Not counting them; no, sir.
Q. They were sorting them? — A. Yes, sir.
Q. When you got back from supper, they were still sorting? — A- Yes, sir.
Q, What do you mean by electioneering? — ^A. Why, I understand that elec-
tioneering is where — I don't know as I know whether that was electioneering
or not — ^as I understand the meaning of electioneering. It is to ask a man for
a vote or something in that line.
Q. You consider it electioneering if he asked him to vote for some particular
person, in the interest of some particular person? — A. Well, I don't know
whether that is electioneering or not
Q. You wouldn't know? — ^A. No, sir.
Q. Who did you say went to supper when you did? — A. Mr. Dowdigan and
Roy Munger.
Q. Dr. Dowdigan is a dentist In Charlotte? — A. Yes, sir.
Q. Who did you leave there when you and Dr. Dowdigan and Roy Munger
went to supper?— A. The other inspectors.
Q. Who? — A. Mr. Dunning and Mr. Barney.
Redirect examination by Mr. Maynabd:
Q. Did you hear anybody there during that day in the election booth or in the
polling place talking in the interest of any particular candidate for any office? —
A. No, sir ; I did not
Recross-examlnation by Mr. Adams:
Q. The man who passed out the ballots that day to the voters when they came
in there to get their ballots was on the opposite side of the booths from you? —
A. No, sir; on the same side.
Q. Who passed out the ballots? — ^A. Dr. Dowdigan most of the day.
Q. He was on the same side of the booths you were on? — ^A. Yes, sir.
426 GASNEY VS. bJAITU.
Q. Then, I take it, that all the inspectora and clerks of that board that day
were on one and the same side of the booths in the work they did there that
day? — A- No, sir.
Q. What do you mean by that? — ^A. The Inspector was the man who took
care of the ballot box.
Q. They were all on the same side of the booths, you say? — ^A. No, sir; on
the opposite side.
Q. Then, all the inspectors except the man who received the ballots from the
voters and put them in the ballot box were on one and the same ride of the
booths? — ^A. No, sir; not all day.
Q. Practically all day?— A. No. sir.
Q. Let ns see. On that side of the booths where the ballots were passed out
to the voter, who was on that side, of the board? — ^A. Why, Dr. Dowdigan
the two clerks.
Q. Who was on tlie other side of the booths? — A. Mr. Dunning and
Barney most all day.
Q. What were they doing on the other side? — A. They were attending the
ballot box.
Q. Two of them didn't? — A. No. sir; one attended the ballot box, but I think
Mr. Dunning relieved Dr. Dowdigan once or twice.
Q. I understood yon to say where you were you could not see what was betng
done by the inspectors on the other side of the booth? — ^A. Why, I sat where I
could probably see them if I had watched them.
Did you have your back to them? — ^A. Yes, sir.
Q. Where was the ballot box located with respect to the line or the long way
of the booths; about the middle of them? — A. Here [indicating] are the bootlis
and there was the desk, and I sat here and the ballot box was here ; so I could
look through to the ballot box.
Q. You didn't have to look through the booths to see the ballot box? — ^A. No,
sir; the ballot box was near the wall and I sat against the wall, and there 'waB
a little space to walk through.
Redirect examination by Mr. Maynasd:
Q. Which way did that room run, east and west or north and south? — A. The
long way, or north and south.
Q. Which way does the street run? — ^A. Main Street?
Q. Yes. — ^A. Main Street runs north and south.
Q. Are there any windows in that room where the yoting took place? — A.
Yes, sir.
Q. Which way did the windows face? — A. There is a big window in the front
facing cast and a big window In the north facing the north, and a little f&rtber
another window.
Q. Farther west? — A. Yes, sir; another window farther west.
Q. In the north end of the room there are two windows? — ^A^ Yes, sir.
Q. And one large one in the north? — ^A. I think two windows; I will not be
sure. I think there was a small window or the bottom of a window on tbe
west side, but I am not positive about that : there Is a window in the northeast
corner.
Q. The booths, which way did they run? — A. North and south.
Q. Which corner of this room of the voting precinct was the gate that the
voters came In? — ^A. At the farther end south.
Q. The southeast comer? — A. The southeast corner; yes, sir.
Q. On which side of the room were the clerks? — A. They were on the north
side of the room, clear to the farther end.
Q. At the northeast corner? — A. At the northeast corner; yes, sir.
Q. On which side of the room was Dr. Dowdigan? — A. On the same side the
clerks were.
Q. On the east side? — A. Yes. sir; or north — whatever you call it. That faces
to the east, his desk did ; he sat over here. [Indicating.]'
Q. Where was the gate? — ^A. Over at that end. [Indicating.]
Q. He didn't sit near the gate? — ^A. There was a long desk and he sat at the
farther end of the desk.
Q. That would be on the east side of the room? — A. Yes, sir.
Q. And the booths run north and south? — A. Yes, sir.
Q. Which side of those booths did Mr. Mosier, the challenger, sit? — A. On the
west side.
Q. The other side of the booths from you? — A. Yes, sir.
GABKEY VS. SMITH. 427
Q. The ballot box was in which comer of the voting place? — A. Oyer in the
Dorthweet comer.
Q. What did the ballot box sit on? — ^A. I think on the floor or a large box.
ROY MUNGER, being first duly sworn to testify to the truth, the whole troth,
and nothing but the truth, testified in b^nlf of the contestee as follows :
Direct examination by Mr. Maynard:
Q. Mr, Munger, where do you reside? — ^A. In Charlotte.
Q. What is your business? — ^A. I am a hardware dealer.
Q. What is the name of your firm? — A.. J. W. Munger A Son.
Q. What is your age? — ^A. I am 34.
Q. Are you a married man? — ^A. Yes, sir.
Q. How long have you lived tn Charlotte? — A. About 22 years.
Q. Were you at the general election held on Tuesday, the 5th day of Novem-
ber, 1912, in the third ward of the city of Charlotte? — ^A. Yes, air.
Q. Did yon officiate in any capacity in connection with the election board; if
80, what? — A. I was clerk.
Q. Did you act as clerk of election at more than this election? — ^A. Yes, sir.
Mr. Adams. I move to strike out the answer as irrelevant and immaterial.
Q. How long have you lived in the third ward of the city of Charlotte? —
A. Why, probably 18 years.
Q. Mr. Mimger, what time did you go there that day? — ^A. About 7 o'clock.
Q. Were you there when the polls opened? — ^A. Yes, sir.
Q. Were there any constitutional oaths administered to any of the officers
when you first opened the polls? — A. Why, the usual swearing in of the board.
Q. Who did that, do you remember? — ^A. I don't remember now.
Q. You took the oath of office with the rest, did you? — ^A. Yes, sir.
Q. Did you remain in the discharge of your duties as clerk of the election
throughout the day? — A. Why, I went to dinner and supper.
Q. With the exception of that, did you remain In the discharge of your duties
until the vote was counted up? — ^A. Yes, sir.
Q. Did you go to supper? — A. Yes, sir.
Q. Where did you go? — ^A. To a restaurant
Q. Who did you go with?— A. Why, with Mr. Fisher and Mr. Dowdigan.
Q, Did you go to dinner? — ^A. Yes, sir.
Q. Who did you go with?-— A. Mr. Collins and Mr. Dunning.
Q. Who was Mr. Collins? — ^A. James Collins, one of the gatekeepers.
Q. Witness, who read off the ballots when you had been counting? — ^A. Why,
to the best of my recollection. Dr. Dowdigan read the most of them.
Q. Who kept the tallies?— A. Mr. Fisher and I.
Q. Did you hear Claude S. Carney's name read there as one of those receiving
votes for the office of Congressman? — ^A. Yes, sir.
Q. What do you say as to whether or not he received credit for all the votes
that was read for his name? — ^A. To the best of my knowledge.
Q. Did you hear any called for John M. C. Smith's name? — ^A. Yes, sir.
Q. Did you give him any more votes than was read to you? — A. I did not;
no, sir.
Q. Now, during the day, I would like to ask you whether there was any dis--
turbance around the polls; any trouble? — A. Why, no ; there were one or two men
who were not registered, and they had a little argument; that is the only thing.
Q. They were not registered ; were they challenged? — ^A. They were not regis-
tered, so Mr. Dowdigan would not give them a ballot
Q. There was no trouble or row about it? — A. Why, no; just the. matter of
talking that would naturally come from the matter.
Q. That was all you heard durlilg the day? — A. That was in the way of any
disturbance or anything.
Q. Now. do yon know who the Demo(»ratlc challengers were there that acted
in that capacity during the day? — A. Why, I think it was George Gardiner; I
would not be positive. I don't know who the other challenger was.
Q. Did you see Mr. Mosier there at all? — ^A. Yes, sir.
Q. You know him, do you? — ^A. Yes, sir.
Q. Now, Mr. Mosier, if I remember correctly, said something about like this :
That during the day Evander Dunning electioneered for John M. C. Smith, can-
didate for Congress, and that he became Irritated at It and called him down,
and that It made quite a scene In that voting place. Now, did you hear any-
thing of tliat description there during that election day at the polls? — A. The
428 CARNEY VS. SMITH.
only thing I remember was the time an old man went in there and asked for
Instructions, and Mr. Dunning said something like this: "How about John M.
O. Smith/' or " J. M. C. Smith." That is the only thing I saw or heaid that
Mr. Dunning said during the day that would be taken for electioneering for
anyone
Q. Did you hear Evander Dunning at any time urge anyone to vote for Jobn
M. C. Smith, or mention his name aside from what you have Just mentioned?—
A. No, sir.
Gross-examination by Mr. Adams:
Q. How long were you gone to dinner at noon election day? — ^A. Why, I pre-
sume 15 or 20 minutes.
Q. Did you go home to dinner? — ^A. No, sir; I went down to a restaurant
Q. Who went with you at noon to dinner of the election board?— A. In-
spector Dunning and I went together and James Ck>llln8.
Q. Who was Collins? — ^A. He was a gatekeeper.
Q. Which gatekeeper was he, the incoming or outgoing gatekeeper? — ^A. I
couldn't say.
Q. Did you all go to dinner at the same place? — ^A. Yes, sir.
Q. When you went to dinner what inspector or inspectors did you leave
at the voting place? — ^A. Mr. Dowdigan and Mr. Barney were the inspecton
there.
Q. You went to supper that night? — ^A. Yes, sir.
Q. What time did you go? — ^A. Why, to the best of my recollection about a
quarter after 6 o'clock.
Q. Who went with you of the clerks or Inspectors of that ward? — A. Mr.
Fisher, the clerk, and Mr. Dowdigan, an Inspector.
Q. Where did you go to supper? — A. To a restaurant
Q. How long were you at supper; how long did you remain away from the
liolling place for supper? — ^A. I think not more than 20 minutes.
Q. Whom did you leave In charge of the ballot box, books, etc., when you
went to supper? — A. The other inspectora
Q. Who? — A. Mr. Barney and Mr. Dunning.
Q. When you got back from supper to the voting place, who was there of the
election board? — A. I think when we got there the whole board was there; I
think they were all there except us when we were not there.
Q. You are a Republican? — ^A. Well, I was a Republican.
Q. You were enrolled as a Republican up to the November 6, 1912. election?—
A. I have not changed my enrollment in the party enrolled.
Q. The question is whether you were enrolled as a Republican on the 5Ui
day of November, 1912, and including the completion of the election in that
precinct? — ^A. I presume I was.
Q. You have been a Republican for a number of years? — ^A. Yes, sir.
Q. How long had you been a Republican up to and including the 6th day of
November, 1912? — ^A. I presume ever since I voted.
Q. I understood you to say that you were 34 years old? — ^A. Yes, sir.
Q. Mr. Fisher was also a Republican, as you understood It, November 5.
1912? — A. I couldn't tell you what his politics were.
Q. Do you know what they were at that time? — A. I am not positive whether
he was
Q. (Interrupting.) You understood he was a Republican, didn*t you; that
was your understanding of It? — A. I don't think I had any understanding about
it at all.
Q. I have here the elecrion returns sent from the third ward of the city of
Charlotte and later addressed to the board of county canvassers, and from
these two envelopes I have Just removed them here before you, two poll books
of the general election held Tuesday, the 5th day of November, 1912, in the
third ward of the city of ('harlotte, in Eaton County, Mich.. I wish you would
examine them and tell me whether the writing that is in there under the list of
voters in either of those books is your handwriting? — ^A. This one is mine.
Q. The other, do you know whose handwriting that is?— A. I should call it
Mr. Fisher's.
Q, The gentleman who preceded you on the witness stand. These are the two
poll books that you kept there on November 5, 1912, in conducting that election,
are they not? — A. Yes, sir.
Q. That is, you and Mr. Fisher?— A. Yes, sir.
Q. Those are the only ix>ll books you kept there that day, are they not?—
A. Yes, sir.
OABNBT VS. SMITH.
429
Q. You only had two poll books there that you used ; that is, the one you
were keeping, I mean, and made on the 5th day of November, 1912, at that
election in that Ward?— A. Yes, sir. ^ ^ ^^ ^
Q. And you also had two tally-sheet books and two statement books that you
made up there that day during the election work your board did, didn't you?—
A Yes. sir
Q. And you only had two tally-sheet books and two statement books that
you did make up there that day?— A. Yes, sir.
Redirect examination by Mr. Maynabd:
Q. Examine these books and show me the set you made. — ^A. These three.
Q. Look the poll book through ; that is the poll book you made at that elec-
tion?—A. Yes, sir.
Q. Is that a correct record of the number of voters voting and the names of
the voters at that election?— A. Yes, sir; to the best of my knowledge.
Q. Do you know whether you made it correctly or not, or Intended to? — A. I
did.
Q. Now, the tally sheet you made, will you show me that?— A. That is the
one.
Q. Did you make this tally sheet correctly, according to the best of your
knowledge and ability?— A. Yes, sir.
Q. Did you try to keep it a correct statement? — A. Yes, sir.
Q. That is the one you made, is it? — A. Yes, sir.
Q. Here is the statement book? — ^A. Yes, sir.
Q. Is this the one you made? — ^A. Yes, sir.
Q. Did you write out all those numbers opposite the name of John M. O.
Smith?— A. Yes, sir.
Q. Candidate for CJongress?- A. Yes, sir.
Q. And opposite the name of Claude S. Carney? — ^A. Yes, sir.
Q. Did you make those figures opposite their names? — ^A. Yes, sir.
Q. This is the book you made there at the polls? — A. Yes, sir.
Q. Can you pick out the set that Mr. Fisher made? Is this the statement
book Exhibit 37, made by Mr. Fisher? — ^A. To the best of my knowledge it is.
Q. At that Section?— A, Yes, sir.
Q. Made that night?— A« Yea, sir.
Q. Were these books completed and signed up? — A. At what time?
Q. Before you adjourned. — ^A. Yes, sir.
Q. At that meeting? — A. Yes, sir.
Q. Is this other tally sheet that has been shown you by the attorney for the
contestant a tally-sheet book that was made by Mr. Fisher? — ^A. It Is to the best
of my laiowledge.
Q. Have you looked through that book where you come to Representative in
Congress, to see whether there has been any changes or alterations made in
that book in any way? — ^A. I don't see any changes.
Q. If there had been any alterations or Interlineations you could see them,
could you not? — ^A. Yes, sir.
Q. Now take the tally book made by yourself, opposite the names of John M.
C. Smith, Representative for Congress, and Claude S. Carney, are those tallies
there as you left them and as you made them? — ^A. Yes, sir.
Q. And the figures here?— A. Yes, sir.
Q. Mr. Fisher's poll book — look at that ; Is that the one that was made by him
at that election? — ^A. To the best of my knowledge.
Q. Did it agree in the number of votes? — A. Yes, sir. •
Q. Did you compare them? — ^A. Yes, sir.
Recrosa-examinatlon by Mr. Adams :
Q. When you got through you compared that poll book, you and Mr. Fisher,
and they corresjwnded exactly? — ^A. To the best of my recollection; yes, sir.
Q. I see the certificate made here says that "The foregoing poll lists have
been carefully compared with the duplicate poll list as required by law, and
that all mistakes found in said poll lists have been duly corrected by us, and
that said poll lists are now correct and agree with each other." I see that was
signed by Evander Dunning, Dr. Dowdlgan, and George J. Bam^; isn't that
so, and that poll book was the one made by Mr. Fisher? I suppose you com-
pared them and found them to be correct; the two poll books agreed? — ^A. They
agrreed to the best of my knowledge.
480 CARNEY VS. SMITH.
Q. You did compare your poll books, didn't you and Mr. Fisher? — ^A. Yes, sir.
Q. As far as you and Mr. Fisher were conceraed, you compared your poll
books? — ^A. Yes, sir.
Q. Were those books correct? — ^A. Yes, sir.
Q. You found they agreed? — ^A. To the best of my recollection, th^ agreed.
Q. You went over them for that purpose, to see if they agreed, didn't yon? —
A. Why, we kept track of them to see If they agreed throucbout the day.
Q. When you got through at night witb your work, your poll book and Mr.
Fisher's poll book you found to agree? — A. That is my recollection; yes» sir.
Q. I notice in Mr. Fisher's poll book, the one kept by him that day there,
that there is no check mark at all to show that the ballots were deposited in the
ballot box, is there? — ^A. No, sir.
Q. That is Earl fVench's vote as appetirs by Mr. Fisher's poll book, 375, as
also appears by your iwU book you kept there that day? — ^A. Yes, sir.
Q. Opposite Earl French's nnme In the iwll book kept by Mr. Fisher, there
is no check mark at all? — ^A. No, sir.
Q. In your poll book there are two check marks? — A. Yes. sir.
Q. You had two ballot boxes there that day, didn't you, or did you pat all
the ballots lu one box? I will withdraw that You had two kind of ballots
that day, didn't you, at that election? — ^A. Yes. sir.
Q. One was a ballot on which was printed all the various candidates for the
various officen to be voted for in the county of Katon at that election? — ^A.
Yes, sir.
Q. That was one ballot? — A. Yes, sir.
Q. There was nnother ballot upon which were the woman snffnige question
and the ottier amendments to the constitution of the State of Michigan? — ^A.
Yes, sir.
Q. Those were the two ballots that were there to be voted there that day at
that election? — A. Yes, sir.
Q. So you had one ballot box to put those two different ballots in of the
various voters who voted, or did you have two ballot boxes? — ^A. My recollection
Is there were two ballot boxes: one for the amendments and one for the
candidates.
Q. Now, then, if a man voted for the candidates for office or voted the ticket
that had the various candidates for the various offices, when his ballot was de-
posited by the man who received the ballots you checked opposite the voter's
name, made a check mark, a stroke to show that he had voted? — ^A. The ticket
he voted.
Q. If he voted both tickets you put two strokes opposite his name? — A.
Yes, sir.
Q. If he voted only one ticket you put one stroke opposite his name to
indicate that be only voted one of the two ballots; is that correct? — ^A. The first
column was for the main ticket, and the second column was the amendmenta
Q. Well, now, if he voted what you call the main ticket and didn't vote the
<»ther, you put a stroke opposite his name to indicate that he voted the main
ticket?— A. Yes, sir.
Q. If he did not vote the main ticket but did vote for the amendments you
put a stroke opix)8ite his name to indicate he voted for the amendments? — ^A.
Yes, sir; in the second column.
Q. If the voter voted both the main ticket and the amendments then you put
two strokes opposite his name? — A. Yes, sir.
Q. That three hundred and seventy-flfth ballot there in Mr. Fisher's iwU book ;
there are no strokes opposite Mr. French's name at all. That is, Mr. French
was the three hundred and seventy-fifth man to vote?— A. Yes, sir.
Q. That is true; there are no strokes opposite his name in Mr. Fiaber's poll
book? — A. Yes, sir.
Q. And you have two strokes op])osdte Mr. French's name, the three hundred
and seventy-flfth voter, in your ik)11 book? — A. Yes, sir.
Q. Your poll books didn't quite agree when you got through that night? —
A. Not exactly in that way; no, sir.
Redirect examination by Mr. Maynard:
Q. Who was the last mfln that voted there?— A. Earl French.
Q. Do you remember about what time that vote was cast? — ^A. No, sir; I do
not.
Q. Do you know whether Mr. Fisher was In when that vote was cast? — A.
Yes, sir.
CARKBY VS. SMITH. 481
Q. He was? — ^A. Y«s, sir.
Q. Do you think that reeonl is right, that he voted botU tickets?— A. Yes, sir.
JOHN W. SAWYER, being first duly sworn to tell the truth, the whole truth,
and nothing but the truth, testified in behalf of the contestee as follows :
Direct examination by Mr. Maynabd :
Q. Mr. Sawyer, where do you reside ?—A. In the third ward, Cbaiiotte.
Q. Eaton County, Mich.?— A. Yes, air.
Q. How long have you lived in Charlotte?— A. Twenty-six years.
Q. How long have you lived in the third ward?— A. Twenty-ito years.
Q. Were you present at the election held in the third ward of the eity of
Charlotte, Eaton County, Mich., on the 5th day of November, A. D. 1912?—
A YPfl si 1*
Q. What time did you go there?— A. About 8 o'clock in the morning.
Q. How long did you remain? — ^A. Until about half past 12; along there.
Q. Then what; did you leave the polls? — A. I went to dinner; yes, sir.
Q. How long were you gone? — ^A. Oh, half or three-quarters of an hour.
Q. IHd you return then? — ^A. Yes, sir.
Q. How long did you remain? — ^A. Until 5 o'clock.
Q. Until the polls closed? — ^A. Yes, sir.
Q. In what capacity wore you at the polls? — A. As ehall^iger for title R^mb-
lican Party.
Q. Did you keep a list of the voters? — ^A. Yes, sir; and had a book with the
list of the voters in.
Q. What were you doing? — A. I checked them ofF as they voted.
Q. Did you challenge anybody there that day or have anyone to? — A. No, Sir.
Q. Did you see anybody challaiged? — ^A. I think a couple were held up who
were not registered, that is all.
Q. Was there anybody on the other side that challenged them? — ^A. I think
not.
Q. Did it turn out th^ had not been registered? — ^A. Yee, sir.
Q. Were they permitted to vote? — ^A. I think one was sworn In; I will not
say, though.
Q. You don't know ? — A. I don't remember as to that.
Q. Whereabouts was your seat? — A. On the west side of tbe booth.
Q. In rriatkm to the gate, how dose were you to the gate?— A. I was probably
S feet.
Q. Which way?— A. North and west.
Q. You were seated north and west of'the gate? — ^A. Yes, sir.
Q. Bid jou see Mr. Moaier there? — ^A. Yes, sir.
Q. Where did he have his eeat?— A. Right opposite to me.
Q. Did you see Mr. Gardiner there?— A. Yes, sir; he was there part of the
time.
Q. Did you go into the booth with any voter?— A. No, sir.
Q. Did you see any voter mark his ballot there that day at all?— A. No, sir;
I did not.
Q. Did you hear anyone about the polls urging any voter or soUelting any voter
to support or vote for any candidate upon any ticket that day?— A, No, sir; I
did not hear anyone urge anyone or solicit their vote.
Q. What did you hear? — ^A. I heard a man say there were two men on the
Bepnblican ticket he wanted to vote for; one was Mr. Storrs, and ttie other, he
couldn't remember which one it was. He was an old man, and Mr. Dunning
says " J. M. C." and he says, " That is the man."
Q. Did you hear Evander Dunning make a suggestion of that kind to anyone
else during the day? — ^A. No, sir.
Q. Where was Mr. Mosier at that time?— A. I think be was In the booth with
the man himself.
Q. Mr. Mosier testified before the commissioner something to the effect that
Mr. Dunning made a suggestion of that kind a great many times during the
day, or several times during the day, until he became irritated and called him
down for it; did you hear anything of the kind?— A. Nothing, only the once;
that is all.
Q. I>ld Mr. Mosier say anything about that at that time?— A. Yes, sir; he
spoke about it.
432 CARNEY VS. SMITH.
Q. Do you remember what he said? — ^A. Why, not exactly; I caa*t remember;
he was talking a good deal; they were talking all day; I don*t know what he
did say.
Q. Was Mr. Mosler taking an actlTe part? — A. Yes, sir.
Q. In the election throughout the day? — A. Yes, sir.
Q. Did you address yourself to any voter as to the manner in which a vote
should be cast? — ^A. No, sir.
Q. Did you discuss the matter of voting with any elector during that day
while you were In the polls? — ^A. I did not
Cross-examination by Mr. Adams :
Q. You were the challenger there that day for the Republican Party?— A.
Yes, sir.
Q. You were a Republican on that day? — ^A. Yes, sir.
Q. What is your age? — ^A. I am 46.
Q. How long have yoii lived in Charlotte? — ^A. Twenty-six year&
Q. You have been a Republican a great many years? — ^A. Yes, dr.
Q, All your life?— A. Yes, sir.
* Q. Did you have a certificate as challenger there that day from the cam-
paign committee? — ^A. Yes, sir.
Q. The Republican?— A. Yes, sir.
Q. Did you present your credentials to the election board? — ^A. Yes, sir.
Q. It was in writing? — ^A. Yes, sir.
Q. It was signed by whom? — ^A. It was signed by the chairman of the county
committee, Mr. McPeek.
Q. This Mr. McPeek was the prosecuting attorney at that time? — A. I think
he was; yes, sir.
Q. He was prosecuting attorney, was he not? — ^A. I think so.
Q. Were you out and in some during the day from the voting place in this
third wnrd, outside of the times you went to your meals? — ^A. I don't think I was
out of the room.
Q. The only time you were out of the room where the voting was being doae
that day, from the time that you got there in the morning up to the time the
polls closed were the times you got a lunch at noon and supper at night?— A.
I went to dinner; that time I was away. After the polls closed I left
Q. You didn't go back any more? — ^A. No, sir.
Q. You left at 5 o'clock and didn't go back to the voting place again that
day? — ^A. No, sir.
Q. How long were you gone to dinner? — A. A half or three-quarters of an
hour.
Q. Mr. Mosler, the gentleman you referred to In your direct examination, was
there as challenger that day? — ^A. I think so; yes, sir.
Q. For the Democratic Party? — ^A. Yes, sir.
Q. He is a very reputable, estimable citizen in Charlotte? — ^A. I think he Is.
Q. And a neighbor of John M. C. Smith? — A. They live in the same ward.
Q. Didn't they live very close together? — ^A. We called them neighbors.
Q. How close together were they living, Mr. Smith and Mr. Mosler? — ^A. I
think one block.
Q. A block apart? — ^A. I think they call that a block, 000 feet
Q. You say that you did not go into any of the booths at all on that election
day there? — A. I did not.
Q. You didn't hear any urging or soliciting at all? — ^A. Only the one time
there.
Q. You got to the polls at 8 o'clock In the morning? — ^A. About 8 o'clock.
Q. You got back from dinner about 1 o'clock? — ^A. About it or a quarter past;
I left at half past 12 o'clock.
Q. When you left to go to dinner that day, were all of the inspectors there? —
A. I couldn't say as to that
Q. Were all the clerks there? — A. I couldn't say.
Q. Were the gatekeepers both there? — A. I think one was there; I think
probably tiie other one had gone to dinner.
Q. Which one was that?— A. I think Mr. Storrs.
Q. Who was the other gatekeeper? — ^A, Mr. Collins.
Q. Were all the inspectors there when you got back from dinner? — A. I
couldn't say as to that.
Q. Were both of the gatekeepers there when you got back from dinner?— A.
I think BO.
CARNEY VS. SMITH. 488
Q. Were both of the clerks there when you got bade from dinner? — ^A. I
couldn't tell you as to that.
(It was conceded and stipulated ui)on the record that all of the election re-
turns from the several voting precincts, as well as the envelopes containing the
same, in the county of Eaton, State of Michigan, for the general election hel4
therein on the 5th day of Novemb^, A. D. 1912, and which are now in the pos-
session and under the control of the county clerk of the said county of Eaton,
be, and the same are hereby, considered in evidence for the use of either party
as the hearing proceeds, as well as the envelopes containing the same; as wel)
also Ezliibit 6, being a canvass of the votes of said election made by the board
of county canvassers of Eaton County, subject to all objections upon the gToun4
of irrelevancy, immateriality, and incompetency which may be made to the same
or any thereof at the hearing.)
Afbil 11, 1913.
ALBERT H. SAYER, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified in behalf of the contestee as follows :
Direct examination by Mr. Maynabd :
Q. Where do you reside?— A. In the township of Sunfield, Eaton County,
Mich.
Q. Were you present at the general election held in the township of Sunfield
on the 5th day of November, 1912? — ^A. Yes, sir.
Q. Did you officiate upon that election board at that election? — ^A, Yes, sir.
Q. How did you come to serve on the board? — ^A. Well, I was there when they
opened up and they named me; elected me as one of the inspectors, or in-
structor, they called it.
Q. That was done by the vote of the bystanders? — ^A. Yes, sir.
Q, Those surrounding the polls at the opening? — ^A. Yes, sir.
Q. Now, was there any official oath administered to you? — ^A. Yes, sir.
Q. Administered to you alone or were the others sworn at the same time? —
A. I think they were all sworn at the same time.
Q. When you say all sworn at the same time, who do you mean? — ^A. The
rest of the board.
Q. Who were they; who was the supervisor? — ^A. J. H. Palmer.
Q. Was he sworn at the same time you were? — A. I think so.
Q. Who were the other members of the board? — ^A. D. W. Knapp, Dennis A.
Hager, Mr. Bacon, and the two gatekeepers, Mr. Slayter and Mr. Gilbert, I
think; I am not sure.
Q. J. H. Palmer was the supervisor of the township? — ^A. Yes, sir.
Q. You spoke of Mr. Bacon ; what office did he hold? — ^A. Justice of the peace.
Q. He was justice of the peace of the township at that time? — ^A. Yes, sir.
Q. Mr. Hager, what office did he hold? — ^A. I think he was a Justice of the
peace, too ; he was one of the members of the board I know.
Q. When you took the official oath of office, did you stand up with these
men you have mentioned? — ^A. Yes, sir.
Q. Who administered the oath? — ^A. Well, now, I couldn't say whether Mr.
Palmer or Mr. Bacon ; one or the other.
Q. Did you commence your services there on that board In the morning? —
A. Yes, sir.
Q. What did you do? — ^A. I handed out the ballots.
Q. Were the ballots initialed?— A. Yes, sir.
Q. Do you remember who Initialed the ballots? — ^A. I am not sure, but I
think Mr. Bacon did.
Q. When they were initialed, who were they handed to? — ^A. They were
handed over to me.
Q. What kind of a situation did you have there in the polls?— A. Well, th«
voting booths were along here and I was on one side and the board was on thil
other.
Q. Did you have a table? — ^A. Yes, sir.
(J. To lay your ballots on? — ^A. Yes, sir.
Q. Did you have a chair there? — ^A. A table and a chair; yes, sir.
Q. Did you deliver a ballot to each voter as they were called off that day? — *
A. Yes,, sir.
286—13 ^28
434 GABNEY VS. SMITH.
Q. Did you go in the booths with any voter?— A. I didn^t go into the booth,
I went to the door to show them, but I didn't tell them how to vote or anything
of that kind.
Q. Did you marlc anyone's ballot for them? — ^A. No, sir; one or two persons
called me up to the door and asked me about it and I told them where to mark
their ballots.
Q. Did you stand there to see the ballot was marked? — ^A. No, sir; I didn't
see anyone mark their ballot
Q. Witness, did you solicit any person to vote for any particular candidate
for any office there that day? — A. No, sir; I did not.
Q. How long did you remain there at the polls? — A. From early in the morn-
ing until 12 o'clock and until 5 o'clock.
Q. You remained in attendance during the entire day, did you? — ^A. Yea*, sir.
Q. And you delivered all the ballots that were voted?— A. Every one; yes, air.
Q. What are your politics? — ^A. I am a Democrat.
Q. Did you support the Democratic ticket there at that election?— A. Yes, sir.
Q. Witness, were you in any way interested in the election of John M. C.
Smith as a Member of Congress at that election? — ^A. No, sir.
Q. I will ask you this question, but you need not answer it unless you want
to. Now, did you support John M. O. Smith for the office of Representative in
CJongress?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial and
in violation of the laws Qf this State which provide for a secret ballot, and it Is
the contemplation of the law that no such question should be asked any witness,
and it is improper for the attorney to ask it.
Q. You can answer it if you desire to, if you are willing to. You are the only
one who can waive the right ; if you don't want to answer it, you don't have to.
Mr. Carney. T take it that every candidate is entitled to that same secrecy.
Mr. Adams. If you don't want to answer It, you don't have to.
The Witness. I supported Mr. Carney ; I voted the straight ticket.
Q. Did you, while you were acting in that official capacity there at that elec-
tion at any time during the day, solicit any support in any way for John M. G.
Smith for Member of Congress? — ^A. No, sir; I did not.
Cross-examination by Mr. Adams:
Q. Did anybody else know how you voted that day at that election? — ^A. No,
sir; not that I know of.
Q. You voted secretly and marked you ballot in private and alone? — ^A. Yes,
sir.
Q. And foldeil it up?— A. Yes, sir.
Q. And it was deposited in the ballot box? — ^A. Yes, sir.
Q. Without being unfolded?— A. Yes, sir.
Q. So it was deposited in such a manner that it was imx)ossible for anybody
to see how you voted? — ^A. It certainly was.
Q. Any marks that you made on that ballot were filled in on the inside? — A.
YeSf sir.
Q. It was a large ballot and had to be folded four or five times, didn't it, in
order to make it small enough to get it in the ballot box? — A. Yes, sir.
Q. When you took the ballot and went in the booth with it, there were no
marks on it to indicate any vote for any candidate? — ^A. No, sir.
Q. The only marks you put on It to indicate any preference for any candi-
date you put on it in private without anybody being where they could see you
while you were in the booth? — A. Yes, sir.
Q. In such a manner that it was impossible for anybody to see what marks
you put on it? — ^A. Yes, sir.
Q. And deposited it in the ballot box while the ballot was in that shape? — ^A.
Yes, sir.
. Q. And without it being unfolded after you had folded it up in the booth,
and in that manner was placed in the ballot box without being unfolded again
until it was taken out of the ballot box to be counted? — ^A. It was unfolded
then.
Q. After you folded it up in the booth it was not unfolded again until taken
out of the ballot box for the purpose of counting? — ^A. No, sir.
Q. Is to-day the first time you appeared as a witness here for John M. C.
Smith? — ^A. I was subpoenaed once before, but was not a witnesa
Q. Did you come to a former hearing of this contest in Charlotte? — ^A. I was
here, but I was not a witness at that time.
GABNEY VS. SMITH. 436
Q. You came liere to the city of Charlotte for the purpose of giving your
testimony? — ^A, Yes, sir.
Q. A week or 10 days ago, didn't you ? — ^A. I think about 2 weeks ago.
Q. You were then living In the township of Sunfield ? — A. Yes, sir.
Q. And you live there now? — ^A. Yes, sir.
Q. That is how far from Charlotte? — ^A. About 20 miles.
Q.- Were you subpoenaed the other time to come here and testify, or did you
come voluntarily? — A. I was subpcenaed.
Q. Was there a paper served on you the other time when you came here,
before you came? — A. Yes. sir.
Q. Who served it? — ^A. Mr. Healy. the deputy sheriff over there.
Q. Were you subpcenaed to come here this time? — A. Yes, sir.
Q. Did they pay you the witness fees the other time they subpoenaed you? —
A« Yes, sir.
Q. Did they pay you your witness fees this time? — ^A. Yes, sir.
Q. Who subpoenaed you this time to come here on this occasion? — A. The
same fellow, Mr. Healy.
Q. Now, as I understand you, on the 5tfa day of November, 1912, when this
election was in progress in Sunfield Township, you' handed out the ballots to
the voters as they came in? — A. Yes, sir.
Q. Then, after the voters received their ballots from you, they stepped into
the booths and marked them as they wanted to, then passed through on the
other side of the booth and deposited their ballots with the election board
there? — ^A. Yes, sir,
Q. You were on one side of those booths and the inspectors were on the other
side? — A. Yes, sir.
Q. There were how many booths there? — A. Four.
Q. They were attached together, were they not? — ^A. Yes, sir.
Q. One right up against the other? — A. Yes, sir.
Q. Four booths long? — A. Yes, sir.
Q. You were on which side of them, as far as the points of the compass were
concerned? — ^A. I was on the west side.
Q. On the west side of the four booths? And the other inspectors were on
the east side? — A. Yes, sir.
Q. The booths were about 5 or 6 feet high, were they not; you couldn't see
over them from where you were? — A. No, sir ; I could not.
Q. You couldn't see the rest of the board by looking, or could you see through
the booths and see the inspectors? — A. No, sir.
Q. So when you were handing out ballots the other members of the board
were performing their duties on the east side of those booths; you couldn't see
what they were doing? — A. No, sir.
Q. You were the only one there who was attempting to perform any duty at
that election who was on the east side of the booths?— A. On the west side;
yes, sir.
Q. How many ballots were handed out to you when you commenced In the
morning? — ^A. I don't remember.
Q. As many as 10? — ^A. Yes, sir; more than that I wouldn't say Just how
many, but I think about 50.
Q. Were handed out to you? — ^A. Yes, sir.
Q.» More than 25 were handed out to you? — ^A. I think so; yes, sir.
Q. Then you started in with about 50 ballots you say that were handed to
you, and as the voters came in, you gave each voter a ballot? — ^A. Yes, sir.
Q. Did you hand out all of those first ballots that were given to you, the first
batch of ballots given, you before you were handed any more ballots to dis-
tribute to voters? — ^A. Yes, sir.
Q. How many were handed to you In the next lot? — ^A. I don't remember how
many were handed to me at any time, but I think about 50 at a time.
Q. Throughout the day?— A. Yes, sir.
Q. Do you know how many you had in your possession which had not been
delivered to a voter or voters when the polls closed at 5 o'clock that day? — ^A.
I do not.
Q. Did you have any? — A. I couldn't remember.
Q. When 5 o'clock came you didn't longer officiate In any way on that board,
did you? — ^A. Yes, sir; I did after supper.
Q. How long did you stay there? — A. I stayed there until about 9.30 or 10.
Q. Then you went away? — ^A. Then I went home.
486 GABNEY V8. SMITH.
Q. And you didn't have anything more to do with the election? — ^A. No, jBlr.
Q. Didn't perform any more duties after 9.30 or 10 o'clock that night?— A.
No, sir.
Q. What did you do after the polls closed and the counting commenced?— A.
I went home to supper.
Q. After the counting commenced? — ^A. They commenced counting just as
soon as they closed the polls.
Q. When 5 o'clock. arrived the polls closed? — ^A. Yes, sir.
Q. And the board commenced counting the ballots? — A. Yes. sir.
Q. And you went home to supper? — A. Yes, sir.
Q. You didn't help count any before supper? — A. No, sir.
.Q. You cnme back about what time? — ^A. About 7 o'clock.
Q. Then what did you do? — A. I went into the polling place there and was
there about the election ; I didn't suppose I had anything more to do, but Mr.
Mapes was on the board and he asked me If I would not take his place a while,
he was getting tired — he was tallying — and I told him I would.
Q. So you tallied a while? — ^A. Yes, sir.
Q. Did you tally then up to the time you left? — ^A. I tallied until Just before
the post office closed at 9 o'clock. I wanted to get my mall and I asked Mr.
Witherall to take my place while I went and got my mail, so he took my place.
Q. Who was Mr. Witherall? — A.. He is a lumber dealer and coal dealer.
Q. He was not a member of the election board that day? — ^A. No, sir.
Q. Where was he standing when you asked him to take your place? — A, He
was around there somewhere, I don't know just where.
Q. He was not sworn when he commenced to perform the duties you were
performing? — ^A. No, sir.
Q. He hadn't been sworn at any time that day that you know of? — ^A. Not
that I know of.
Q. What did he do?— A. He tallied in my place while I went after the mail.
Q. How long were you gone after the mail? — A. Well, T was gone probably 15
or 20 minutes.
Q. When you got back, did you relieve Mr. Witherall, or did he keep on
tallying? — ^A. I relieved him.
Q. What did he then do? — A. He went home.
Q. Who did you say you thought swore in the officers there that day; the
members who acted on that election? — A. I think Mr. Bacon or Mr. Palmer;
I will not say which.
Q. Who swore in Mr. Bacon? — ^A. I don't remember.
Q. You haven't any recollection that Mr. Bacon was sworn in by anybody,
have you? — ^A. I don't know who it was.
Q. You don't know whether he was or not? — ^A. No, sir.
Q. You didn't hear anybody administer an oath to Mr. Bacon, did you?— A.
No, sir; I don't remember that I did.
Q. You were right there all the time after the polls opened up until an ad-
journment was taken at the noon hour, were you not? — ^A. Yes, sir.
Q. Every minute? — A. Yes, sir; he might have been sworn in; I don't re-
member; it has been a good while since then.
Q. He was a justice of the peace? — A. Yes, sir.
Q. They swore you in to act as instructor? — ^A. Yes, sir.
Q. That is the 'way you understood you were sworn in at the time the bath
wa$ administered to you? — ^A. Yes, sir.
Q. I notice here you signed the oath referred to, Exhibit 13, that is your
signature on page 4 of this poll book. Exhibit 13? — ^A. Yes, sir.
Q. Albert Sayer?— A. Yes, sir.
Q. Read that oath. — A. (Reading:) " State of Michigan, county of Eaton. s&
I do solemnly swear that I will support the Constitution of the United States
and the constitution of this State, and that I will faithfully discharge the
duties of the office of Instructor of this election, held on Tuesday, the 6th day
of November. A. D. 1012. according to the best of my ability."
Q. Then what?— A. " Sworn and subscribed to b«fore me this 5th day of
November. A. I). 1912. Frank H. Bacon, justice of the peace."
Q. That Is your signature to that which we just read? — ^A. Yes, sir.
Q. You signed it on that election day there, didn't you^— A. I think so; yes,
sir.
Q. You did; that is your recollection? — A. Yes, sir.
Q. Now, is it not a fact that yon were sworn in separatdy from the others;
that is, you were not all sworn in at the same time; that is what I mean by
CABNBT VS. SMITH. 437
that, by one and the same oath, were you? — ^A. I can*t remember now whether
I was or not
Q. You took an oath to act as Instructor there and Mr. Palmer and Mr.
Hager took an oath to act as Inspectors, and Mr. Mapes and Mr. Knapp took
oaths to act as clerks, and Mr. Gilbert and Mr. Slater took oaths to act as
gatekeepers? — ^A. Yes, sir.
Q. They swore in the gatekeepers by themselves and the inspectors by them-
rlves? — ^A. Well, now, I wouldn't say; I don't know whether they were or not,
have forgotten about that
Q. Let me call your attention to these oath& It would be pretty difficult to
swear theim all in by one oath where one fellow swears to one thing and anr
other to another. I call your attention to Exhibit 13 again, and you will notice
that two of these there, one signed by Mr. Gilbert and the other by Mr. Slater,
i& "I will faithfully discharge the duty of the office of gatekeeper of this
election"?— A. Yes, sir.
Q. Your oath reads: "Discharge the duties of the office of instructor of this
election"? — ^A. Yes, sir.
Q. And the two oaths of the clerks read among other things : ** 1 will faith-
fully discharge the duties of the office of clerk of this election?" — ^A. Yes, sir.
Q. And the oaths of the inspectors read: "I will faithfully discharge the
duties of the office of inspector of election," among other things. Now, calling
your attention to these oaths as they are signed here, for the purpose of refresh-
ing your recollection, don't you now recall that Mr. Palmer and Mr. Hager, the
two inspectors^ were sworn In as inspectors, and that Mr. Mapes and Mr. Knapp
were sworn in as clerks separately under a separate oath and independent of
Mr. Palmer and Mr. Hager, and that Mr. Gilbert and Mr. Slater were sworn in
separately from the others to participate there on that board that day ; does not
that refresh your recollection as to the fact about it? — ^A. It may be, but I
cotildn't say; I don't remember about that.
Q. You think that Mr. Bacon initialed the ballots?— A. I think he did ; yes, sir.
Q. Then, of course, Mr. Bacon was on the other side of the booths when hel
initialed the ballots, If he did?— A. Yes, sir.
Q. You couldn't tell whether he did from where you were ; whether he initialed
them or not? — ^A. I couldn't tell you whether he did all of them or not; no, sir.
Q. Are you sure he initialed any of them; did you see him initial any of
them? — ^A. I don't know as I did.
0- In fact you didn't see anybody actually put the initials on the ballots, did
you? — ^A. As I remember, his initials were on the ballots; that is all I can tell
you about it; that is as near as I can remember.
Q. I understood you to say that one or two voters that day called you up to
the booth when they were in the booths? — ^A. Yes, sir.
Q. And asked you some questions about the ballots? — ^A. Yes, sir.
Q. About how to mark them? — ^A. Yes, sir.
Q. And you told them? — A. Yes, sir; I told them how to mark them.
Q. How many different men would you say you did that with that day? — ^A. I
think two.
Q. There might have been more? — A. I don't think of any but the two.
§. Did you see anybody. mark their ballot? — ^A. No, sir.
. Did you see one man mark a ballot that day? — A. I saw one man mark Ms
ballot outside before be went in the booth.
Q. Was that in the forenoon or the afternoon, or don't yon recollect? — A. It
was in the afternoon.
Q. You saw him mark it? — A. Yes, sir; I couldn't help to; he marked It on
my table there.
Q. Did you see any others mark their ballots that day? — A. No. sir.
Q. Did you see those two men who called you up to the booths when they
were In there; did you see either of them mark their ballot — make any niarks
on tt? — A. No, sir; I don't remember as I did.
Q. Did you talk with the man who marked his ballot on the table? — A. I
didn't say anything to him.
Q. Did he say anything to you? — A. No, sir; he said he couldn't see in the
booth and he marked It outside.
Q. You went to dinner or lunch at noon; at what hour? — ^A. At 12 o'clot-k.
Q. At noon? — A. Yes, sir.
Q. You got back at what time? — A. 1 o'clock.
Q. Did the rest of the board go to the noon-day meal at 12 o'clock? — ^A. I don't
know whether they all went or not.
488 CARNEY VS. SMITH,
Q. Did the board adjourn the voting there at noon? — ^A. Yes, sir.
Q. What was done in the way of an adjournment?— A. Well, they went out;
I can't say whether
Q. What was done?— A. They went out — one memoer of the board— I don't
know which one now — went to the door and called out that the polls would be
closed for one hour — from 12 to 1 o'clock.
Q. When you got back there they hadn't commenced, or had they? — ^A. No, sir.
Q. When you got back right after dinner, about 1 o'clock, they hadn't opened
up the poDs yet? — ^A. No, sir.
Q. Well, I supposed they just commenced voting; didn't make any announce-
ment, did they?— A. I think they did.
Q. You think they did?— A. Yes, sir.
Q. Who made the announcement? — ^A. I couldn't say.
Q. Can you say there was an announcement? — A. No, sir; I don't recall that
Redirect examination by Mr. Matnabd:
Q. What is your age?— A. I am 42.
Q. What is your occupation? — ^A. I was a hardware merchant; I sold out; I
haven't any now.
Q. How long have you been located there? — A. Two years.
Q. Bo you own a farm in that vicinity?
Mr. Adams. I object to that as incompetent, irrelevant, and immuterial.
A. Yes, sir; I own a farm.
Q. When you delivered the ballots to the voters, did you make any announce-
ment of each ballot? — ^A. No, sir.
Q. Did you give the number of the voter and the number of the ballot you
gave him? — A. No, sir.
Q. Was not that given to the tally clerk? — ^A. Not on my side it was not; all
X did was to hand the ballot, and if they asked me how to vote — if they didn't
know how to vote — I would tell them. If they wanted to vote a straight ticket,
I would tell them about marking at the top there a cross, if that was the ticket
they wanted to vote; several of them asked me that
Q. When did you sign up thiB book Exhibit 13? — ^A. I don't remember.
Q. To refresh your recollection, do you know anything about the board get-
ting together at the office of the justice of the peace. Bacon, the next day after
election and signing up these returns? — A. I was not there.
Q. Do you know when they signed this book? — A. I do not; I signed it tbe
same day as the rest of them ; I didn't sign it the next day.
Q. You say you kept tally — that is, on the night of election? — ^A. Yes, sir.
Q. Who was keeping tally at the same time you were? — ^A. D. W. Knapp.
Q. When you were keeping tally who was calling off? — ^A. Dennis A. Hager.
Q. One of the election board? — ^A. Yes, sir.
Q. A Justice of the peace? — ^A. Yes, sir,
Q. When he called off the candidates what did you do? — ^A. I tallied them as
he called them off.
Q. Did you keep an honest and correct tally? — ^A. Yes, sir.
Q. Just as he called them off to you? — ^A. Yes, sir.
Q. When you were here recently in obedience to a subpoena served on you, do
you know whether the attorneys for the contestee, John M. C. Smith, offered to
have you sworn and give your testimony that night and that the attorney for the
contestant. Judge Adams, refuseil to consent to take your testimony at that
time? Did you hear us talk that in tliere?— A. That is what Mr. Smith told me.
Mr. Adams. I move that go out as irrelevant incompetent, and immaterial.
Mr. Maynard. That Is true; we subpoena e<l him but gave you no notice of
taking his testimony, and we offered to have him sworn, and Judge Adams
thought they could not consent to take the testimony without a notice.
Mr. Adams. I object to counsel stating something at this time that occurred
at a prior time as incompetent, and I move to strike it out and expunge it from
the record. It is incompetent for counsel to make a statement of a past event or
occurrence and get himself on the record as a witness in this case in that way.
Mr. Maynard. I call upon and challenge Judge Adams, the attorney for the
contestant, to dispute the correctness of the statement I make.
Mr. Adams. I do dispute the correctness of the statement. That is not what
occurred as it occurred ; that is not correct, according to my recollection of It
OABNBT VS. SMITH. 489
Apul 4, 1918.
THOMAS H. THORNE, being first duly sworn to tell the truth, the whole
truth, and nothing but the truth, testified in behalf of the contestee as follows :
Direct examination by Mr. Maynabd:
Q. Mr. Thome, where do you reside? — A. Battle Creek.
Q. What Is your age? — ^A. I am 60.
Q. Do you hold any official position? — ^A. Yes, sir.
Q. What is it?— A, City recorder.
Q. How long have you been city recorder? — A. Oh, approximately six years.
Q. You were city recorder at the general election held in the second precinct
of the second ward of the city of Battle Creek on the 5th day of Noveml>er,
1912 ?--A. Yes, sir.
Q. To whom was the custody of the ballot box so delivered after the election
in the city of Battle Creek?
Mr. Adams. I object to that as incompetent and not the best evidence; the
charter speaks for itself.
A. To the recorder.
Q. To whom was the custody of the ballot box delivered after the general
election held on the 5th day of November, 1912, in the second precinct of the
second ward of the city of Battle Creek? — ^A. To the recorder.
Q. Who was the recorder? — ^A. Myself.
Q. Was that taken from your possession later? — ^A. Not to my knowledge; no,
sir.
Q. Did you appear here before the board of county canvassers with your ballot
box in charge? — ^A. I did ; yes, sir.
Q. Do you remember the date? — A. I do not.
Q. Did you come more than once? — ^A. Once only.
Q. At the time you were here with it, what was done with it? — A. The box
was opened.
Q. What was done with it? — ^A. After the commissioners got through with the
box it was locked.
Q. To whom was it delivered? — ^A. To myself.
Q. What did you do with it?— A. I took it to Battle Creek.
Q. Has it been in your custody ever since? — A. Yes, sir.
Q. Where is the ballot box this morning? — ^A. In the court room.
Q. In whose charge? — ^A. My charge.
Q. Has it remained locked and sealed from the time it was delivered into your
possession here in this courthouse at the time the board of county canvassers
had it before them until now? — ^A. No, sir.
Q. What was the occasion of it being unlocked or unsealed? — ^A. To remove
the registration book, also the enrollment book.
Q. When was that? — ^A. I don't remember the date.
Q. After the recent primary election? — ^A. Prior to the primary election.
Q. The one that was held this year? — ^A. Yes, sir.
Q. Who was present when the box was opened? — ^A. The custodian alone.
Q. That is yourself? — ^A. No, sir; the janitor in the city hall, the general
utility man.
Q. Were you present? — ^A. No, sir.
Q. Do you know what was done with the box after that? — A. I directed them
to lock up the box.
Q. Do you know of your own knowledge? — ^A. No, sir.
Mr. Adams. I move to strike out what he instructed them.
Q. What is the condition of that ballot box now? — A. It is locked.
Q. Is it sealed?— A. Yes, sir.
Q. When you were here before the board of county canvassers, what was
done with the box ? — ^A. I saw the box opened and the contents taken out ; as I
remember, they were rolled up but not disturbed by anyone.
Q. What further did you see? — A. As I remember, the poll books were taken
out and examined by the county election commissioners.
Q. Who was present? — A. Ray Hart, James C. Smith, and Mr. Davis; the
other two gentlemen I didn't know — three gentlemen.
Q. Were there any members of the election board there? — A. Yes, sir; the two
Christians were present, and also Mr. Nelson.
Q. Inspectors of election of that precinct? — A. Yes, sir.
440 CABNEY VS. SMITH.
Q. After they had examined the contents, what was then done? — ^A. The con-
tmtB were put back in the box, and the commissioners locked and sealed the
box.
Q. Was there any attempt upon the part of anyone there to open or examine
those bundles of ballots? — ^A. Not to my knowledge.
Q. In what condition or situation were those ballots ; how were they bundled
together? — ^A. I didn't notice, only that I know they were rolled up and tied.
Q. Rolled up in rolls and tied up? — ^A. Tes, sir; I didn^t examine them.
Q. There were several rolls? — ^A. Yes, sir; I don't know how many.
Cross-examination by Mr. Adams :
Q. How long ago was this ballot box opened next after the board of county
canvassers had the box? — ^A. I couldn't state exactly, but it was prior to the
primary election.
Q. Of your own knowledge, you don't know whether it was opened at all after
ii^ board of county canvassers opened it? — ^A. No, sir; I do not; only I in-
structed the man to open the box.
Q. Then, of course, you don't know if he did open it what he did with the
ballots when he opened it? — ^A. No, sir.
Q. You don't know of your own knowledge now whether the ballots are the
same ballots or have in any particular been changed from what they were when
the box was brought here after the election before the board of county can-
vassers?— A. I couldn't swear to it; no, sir.
Q. The Janitor in your building where your office is located at Battle Creek
is the man who does the general Janitor work? — A. Yes, rir.
Q. The public utility man you speak of? — ^A. He does the Janitor work.
Q. The Janitor of the building, doing the sweeping, etc., in the building; yon
helped him to open that ballot box? — ^A. Under my instructions; yes, sir.
. Q. You didn't give any personal supervision to the opening of It, or anything
of that kind, yourself? — ^A. Only instructions; not personally.
Q. I mean you were not actually present? — ^A. No, sir.
Q. You turned it over to a couple of Janitors in the building to open the
ballot box? — ^A. There wasn't two; there was but one.
Q. One and the same man? — ^A. Yes, sir.
Q. The Janitor and the public utility mjiu are one and the same i)orw>u?—
A. Yes, sir.
Q. You instructed him and gave him the key of the box?— A. Yes, sir.
Q. And instructed him to go there and open up these ballots that had been
voted at the November 5, 1912, election :— A. To open the ballot box.
Q. After he opened the ballot box he had free access to the ballots, if he
wanted to?— A. Yes, sir.
(It was consented on the record that John James may be subpoenaed and
put on the stand by the contestee without further notice.)
STARR K. CHUR("H, being first duly sworn to testify to the trntU, the whole
truth, and nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Maynard :
Q. Where do you reside?— A. Marshall.
Q. What is your age?— A. I am 45.
Q. What is your occupation?— A. I am a i)hysielan.
Q. Were you present at the general elwtion held in the second ward of the
city of Marshall on the nth day of November. A. I). 1912?— A. Yes, sir.
Q. What, if any. official connection did you have with the election board that
day?— A. I supiwse I was an inspector, although I acted as clerk both: but I
was really an insjiector.
Q. What time did you arrive at the polling place?— A. I presume in the nefgli-
borhood of 7 o'clock.
Q. Did you remain there throughout the day?— A. I did. off and on.
Q. Witness, did you see any voters there who had assistance in niMrking tlieir
ballots during the day? — A. Yes. sir.
Q. More than one?— A. Yes, sir.
Q. Several?— A. My recollection is. it japenis to me. there were at least two or
three that had assistance.
Q. Who went in the booth with them to as.**ist them?
Mr. Adams. Objected to as leading.
A. You can't assist a man to mark his ballot unless you go in the booth.
GABl^EY VS. SMITH. 441
Q. Who went in the booths with them to assist them? — A, Different inspect-
ors at different times.
Q. Can you mention any? — ^A. Mr. Simmons, chairman of the board, is one
I know of.
Q. What did you see him do? — ^A. I didn't see him do anything; I heard him.
Q. What did you hear him do? — ^A. I beard him tell the man who was blind
who the candidates were ; there was one blind man went in to vote, and another
party; two of them were blind.
Q. Any others? — ^A. There was one man went In ; yes, sir.
Q. Who? — ^A. A man named Hatch.
Q. Who was Mr. Hatch? — A. He was a candidate for prosecuting attorney on
the Bull Moose ticlcet.
Q. What did you see him do? — ^A. He went in the booth as a challenger to
help mark a ballot or assist.
Q. Who did he go in with, do you remember? — A. My impression is it was
Mr. Simmons ; it might have been one of the two. I think it was Mr. Simmons.
Q. Did you see Mr. Hatch go into the booth more than once? — A. That is the
only time.
Q. Did anyone of the inspectors go in with that man when Mr. Hatch did,
or did Mr. Hatch go in alone? — A. I think Mr. Simmons was the inspector who
went in.
Q. Do you remember who the voter was? — ^A. No, sir; t can't remember.
I have tried to.
Q. Was there any oath administered to the voter that he was unable to read
the English language or that he was physically unable to mark his ballot? —
A. I have no recollection of an oath being administerd.
Q. Did you hear any oath administered to any voter there before he was
assisted as to whether he was able to read the English language? — ^A. T don't
remember. The board knew all the voters, and they knew they could not see,
and I don't think any oath was administered to them.
Q. Did you see anyone assisted in marking their ballots that were not blind,
that you didn't know were blind? — ^A. I merely remember of two. One was an
old man — he has since died — ^and another was blind; and the talk was such it
made an impression on my mind. When he was voting he talked about the
candidates; I remember him esfpecially. I remember this particular instance
where Mr. Hatch went in. As to an oath being administered, I don't know any-
thing about that.
Q. Witness, is it true that there were only two men assisted in marking their
ballots in that precinct that day?— ^A. I couldn't say.
Mr. Adams. I object to counsel cross-examining his own witness.
(Last question read.)
A. I will answer that question in this way : I was talking with the chairman
of the election board and I asked him that question
Mr. Adams. Wait a minute. I object to the witness stating the conversation
he had with the chairman of the board as hearsay and is irrelevant, incompe-
tent, and Immaterial.
The Witness. I would say that I have no recollection of there having been
more than two go in there; I didn't suppose it would amount to anything, and I
don't remember it.
Gross-examination by Mr. Adams :
Q. Those two men that received assistance, whatever that assistance, were
both very old men? — A. One was an old man; the other was not
Q. The one who was not old was blind? — A. Blind enough so he couldn't read ;
he could get around.
Q. The other one was a very feeble old man? — A. Yes, sir.
Q. Looked to be feeble? — A. He waa
Q. He appeared to you to be a very feeble man ? — A. Yes, sir ; he was a feeble
man.
Q. About how old was he? — A. He was over 80.
Q, The old man who received instructions was over 80 years of age? — ^A. Yes,
rfr. I am not saying positively ; I think he was about that.
Q. That is your judgment? — A. Yes, sir.
Q. And you, at the time you were acting on this particular election board, was
a practicing physician? — A. Yes, sir.
Q. And had been practicing possibly at Marshall here for some time? — ^A. Fif-
teen or eighteen years.
442 CARNEY VS. SMITH.
Q. You are a physician now? — ^A. Yes, sir.
Q. You observed this old man when he was in there that day? — ^A. Yes, sir.
Q. You knew him before, possibly? — A. Yes, sir.
Q. Had known him for some time? — ^A. Yes, sir.
Q. It was your judgment from his present appearance that he was not phyri-
cally able to mark his ballot? — A. He couldn't do it.
Q. The old gentleman could not even see? — A. I knew he couldn't see to mark
his ballot
Q. The other one who had Instructions was blind? — ^A. Yes, sir; the man was
not so blind but he could get around and recognize you, but he could not read
the ballot, he said.
Q. That is the old man? — A. No, sir; the man about 55.
Q. Had you known him here for some time? — A. Yes, sir.
Q. You knew that the younger one of the two had defective eyesight?— A.
Yes, sir.
Q. You had known that for some time? — ^A. Yes, sir.
Q. Before this election?— A. Yes, sir.
Q. You were one of the Republican inspectors on the board? — ^A. Yes, sir.
Q. And Mr. Simmons was another Inspector? — ^A. Yes, sir.
Q. Who was the other? — ^A. Sam Warren.
Q, Mr. Simmons was a Republican V-A. Yes, sir.
RAY B. HART, being first duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Maynard:
Q. Mr. Hart, where do you reside? — ^A. Battle Creek.
Q. What is your age? — A. I am 37.
Q. How long have you lived in Calhoun County? — ^A. It will be 28 years
Monday.
Q. Have you ever held any official position of any kind? — ^A. Yes, sir.
Q. What kind of an office did you hold? — A. County clerk.
Q. When did your term of office expire? — ^A. January 1, 1913.
Q. When the general election was held on November 5, 1912, were you hold-
ing an office of any kind? — A. Yes, sir.
Q. What was it? — A. County clerk.
Q. Were you a member of the board of county canvassers? — A. I was clerk
of the board.
Q. When the returns were filed here with the county clerk, did you receive
the returns from the second precinct of the second ward of Battle Creek of
that election? — ^A. I did. with others.
Q. Did you submit those returns to the board of county canvassers when
they convened on the 12th of November last? — ^A. I don't recollect the date:
I submitted the returns when the board of county canvassers met.
Q. It already appears by the testimony of the contestant that it was on the
12th day of November? — ^A. If that is the day they met for the official canvass,
they were submitted upon that day.
Q. Did you examine the returns that came to your hands from the second
precinct of the second ward of Battle Creek of that election? — ^A. Specif^ the
time; when?
Q. At any time after they came to your hands? — A. Yes, sir.
Q. When did you first exnmiue them? — A. I first examined the tickets as
they came into the oflloo to see what condition thoy were m. Some were
marked— some came by express and some came by postal and some — I am
hardly able to answer that question intelligently In that form.
Q. Answer it in your own way. — A. As I say, I examined the tickets and
found some of the seals broken that were broken by the postal authoritiea I
am trying to get to the point; I don't know without examining that ticket
whether it was open or not.
Mr. Adams. As far as the witness's answer relating to the second ward of the
city of Battle Creek, I move to strike it out as incompetent, irrelevant, and
immaterial, ond object to it on the same grround.
Q. I hold in my hand here Exhibit 40 and ask you what that is?— A. An
envelope that was returned from the second precinct of the second ward of
Battle Creek that ciime into my possession the 8th day of November, 1912.
Q. To whom is that addressed? — A. To the county clerk.
CABNEY VS. SMITH. 443
Q. What does It contain? — ^A. The election returns from the second precinct
of the second ward.
Q. What are they?— A. The poll book.
Q. What exhibit is that?— A. It is marked ** Exhibit 41.'^ And one tally sheet
marked " Exhibit 42 " and a statement book marked " Exhibit 43."
Q. Witness^ did you examine those returns before the board of county can-
Tassers met? — ^A. I did.
Q. Did you discover any discrepancy in them ; if so, what? — ^A. I did.
Mr. Adams. Wait a minute; I object to that as Incompetent, irrelevant, and
immaterial and the returns speak for themselves.
The Witness. I discovered that the straight vote on each and every political
party outside of the presidential electors hadn't been figured into the results
of the various candidates of each political party.
Q. Beginning where? — ^A. (Witness refers to book.) The governor, I think,
was the first
Q. From governor down, was it? — A. Yes, sir; each political party.
Q. When the board of county canvassers convened, did you call their atten-
tion to that discrepancy? — ^A. I did.
Q. What is Exhibit 44?— A. The poll book from the second precinct of the
second ward.
Q. By that poll book how many votes were returned as having been cast in
that precinct? — A. Three hundred and seventy-five.
Q. How many votes were shown by Exhibit 42 to have been cast for the presi-
dential electors, the totals? — ^A. I will have to figure that
Q. Doesn't the book show? Take the Republican. — ^A. The tally sheet or
Exhibit 42.
Q. From them does It appear how many votes were cast for President? — ^A.
For each political party, but not collectively ; I will have to figure that.
Q. Give us that— A. Collectively?
Q. Yes; how many for the Republicans and Democrats, one elector for each
political party, the highest number anyone received? — A. Ninety-six is the high-
est there and 57 is the highest there. For information, may I ask, do you
want this question answered the total number collectively or the total number
of each political party — the maximum number of each political party?
Q. The maximum number of each political party? — ^A. For the Republican
electors, the highest number was 96 ; for the Democratic electors, 57 ; the Pro-
hibition electors, 4; Socialist electors, 108; Socialist Labor electors, 18; National
Progressive electors, 91 ; a total of 374.
Q. They tallied within one vote on the question of the election for President,
within one vote as many as you had on the poll list? — ^A. That is correct; yes,
sir.
Q. From the President down through all there was sufficient to show you
that there had been a mistake made? — A. Commencing with the office of gov-
ernor and each office of each political party.
Q. Take Exhibit 42. Are you able to state from that how many split votes
had been received for each candidate, from governor down, from the figures set
out to the right? — ^A. Yes, sir.
Q. After the name which appears in the second column on the left page, what
do you find opposite each name? — A. Individual check marks.
Q. Tallies?— A. Tallies.
Q. What do they correspond in number with? — A. They correspond with the
number of total split votes recorded in that column opposite that name.
Q. To the right of the page? — ^A. Yes, sir.
Q. As the books first appeared before you, did anyone of those offices, from
governor down, have any straight votes? — A. No, sir.
Q. What did the board of .county canvassers do when their attention was
called to this evident error ui)on the part of the election board? — ^A. After
going over the situation and examining the books they asked me to summon
before them the inspectors, together with the ballot box.
Q. Of the second precinct of the second ward of the city of Battle Creek? —
A. Yes sir.
Q. Did you do that?— A. I did.
Q. And they came?— A. They did.
Q. What was done? — A. They brought the box, and one of the inspectors
opened the box and they examined the contents.
Q. What did they do to examine the contents? — A. Either Mr. Schneider,
chairman of the board, or one of the inspectors, I am not able to state which^
444 CABNET VS. SMITH.
reached into the box and took out, which was on top, several rolls of ballots
on the back of which was marked " D. straight " and '* R. straight," and took
that roll and laid it in a chair that was there adjoining the table. The box
was completely filled, and they took out several of those rollSy and they ran
their hands down into the box to see what papers and what the contents of the
box were.
Q. Did they remove anything else at that time but those rolls? Referring to
the first appearance, I am talking about. — ^A. Yes, sir; the first appearance. I
recollect nothing that they removed from the box.
Q. But the rolls?— A. But the rolla
Q. Did they open up those rolls, or did they attempt in any way to count the
ballots? — ^A. No, sir.
Q. What did you find on those rolls? — ^A. What I would term a memorandum
mark, "R. straight" and "D. straight"
Q. On the rolls themselves, on the backs of them? — A. Yes, sir; and " S.
stnilgbt," and the number in figures.
Q. Did these election inspectors there claim that they knew what those fig-
ures represented or stood for?
Mr. Adams. I object to that as incompetent, irrelevant, Inmiaterlal, and hear-
say and the conclusion of the witnessL
A. I couldn't say that the inspectors so stated in the presence of the county
canvassers.
Mr. Adams. I object to the witness stating what the inspector said there.
Mr. Maynabo. That is what I asked him.
Mr. Adams. I object to showing by the witness what the inspector said there
as incompetent, irrelevant, and Immaterial.
A. The inspectors present stated to the commissioners — that is, the board of
county canvassers — that the memorandum upon the back of these rolls indi-
cated the total number of ballots counted; that is, "D." stood for Democrat
and the number stood for the numl>er of straight Democratic ballots, "R.
straight" represented the straight Republican ballots, and the figures on the
back represented the number enrolled, and so on down through the various
rows.
Q. F'rom those figures api)earing on those rolls did this board of election
Inspectors from the second precinct of the second ward of the city of Battle
Creek, Mich., did they correct their returns and enter upon Exhibit 42, on their
return book they had there, the straight ballots that had been given to each
I»arty and make that return anew to the board of county canvassers? — ^A. The
chairman of the board of county canvassers, together with the two inspectors,
took n sheet of paper and as one of the inspectors called off the number that
appeared upon the back of each one of those rolls — say. "R. straight" so
many — and along on down, the chairman did — " D. straight," so many; "S.
straight," so many ; and made a memorandum. Then the two lnsi)eotor8 who
were present took that memorandum that was made in the presence of each
one of them and corrected the returns. Now. this was at the first meeting.
Q. From that how many straight Republican votes did they give John M. C.
Smith for Member of Congress? — A. They gave John M. C. Smith 66 straight
votes.
Q. How many split votes? — A. I will say, Mr. Maynard. that the 31 already
had been recorded in the tally sheet; they added 66 to the 31 already re-
corded,
Q. They made a toU\\ of how many? — ^A. A total of 97.
Q. Claude S. Carney, they gave how many straight Democratic votes? — ^A.
They gave him 38 and addecl that to the 23 already recorded.
Q. It made how many? — A. That made 61.
Q. Witness, do yon know whether or not that board of electio;i commissioners
were called i)efore the board of county canvassers again? — ^A. They were called
again.
Q. At the first meeting, who locked up the ballot box when you got through? —
A. One of the inspectora
Q. Now, nfter this boanl of inspectors had corrected their returns, as you say.*
what was the next move that was made In relation to this congressional con-
test; what was the next thing that hrtpi>ene<i; did Claude S. Carney appejir be-
fore the board the next day? — A. I don't know; I was not present.
Q. Did the board of eUvtion insi)ectors from that precinct convene again be
fore the board of county canvassers? — ^A. They did.
CABNBY VS. SMITH. 44S
Q- How long after the first time? — ^A. The first time they appeared was the
13th day of November and the second time was on the 19th of November.
Q. Were you present when they api>eared on the 19th? — A. I was.
Q. Who appeared? — A. Harry Christian, Fred Christian, and W. D. Wilson.
Q. State what was done at that time when tliey appeared : was the ballot box
unlocked? — A. Yes, sir.
Q. By whom? — A. By Thomas Thome, the city recorder.
Q. Were those election commissioners then asked to make a further or cor-
rected or amended return? — A. They were summoned there for that purpose
and were asked to do 9o.
Q. Were they given the poll books and return books?
Mr. Adams. I object to that as leading and suggestive, and object to that
mode of examining the witness.
A. The books were turned over to the Inspectors.
Q- Were they again permitted to examine the rolls on which these numbers
appear?
Mr. Adams. Objected to as leading.
A. They didn't examine the rolls; Fred Christian took from the ballot box
at the time it was opened first a memorandum that he made at the time the
straight ballots were counted, when the ballot box was opened the second time
before the board of county canvassers.
Q. When did he make this memorandum you speak of? — A. He stated to the
board of county canvassers that it was a memorandum he made the night they
counted the ballots.
Q. The night of election? — A. Yes, sir; when they counted the ballots.
Mr. Adams. I object to that and move to strike that out as hearsay and In-
competent.
Q. Where did he get that memorandum? — ^A. Out of the ballot box.
Q. Was It one of the papers included or locked up in the ballot box? — A. It
was in the ballot box, locked up.
Q. Did they then make an amended return? — A. They did; yes, sir.
Q. Did that differ from the one they made at the first meeting? — A. The re-
sult was not changed.
Q. State whether or not there was any variation in the result found by this
election board than they found on the 13th of November and the one which
they made on the 19th. — ^A. The returns made by the board of inspectors on the
19th day of November, which was the last return made, did not differ from the
return made by the two inspectors who appeared before the board of county
canvassers on the 13th day of November.
Cross-examination by Mr. Adams :
Q. I notice you seem to differentiate somewhat when yon say the result was
the same. When the inspectors were before the board of county canvassers the
first time, how did they get at the figures to make the changes? — A, They took
the rolls that were removed from thtf box and laid them in a chair, and on the
back. of those rolls there was a memorandum, so many figures like 175
Q. Did you see the memorandum on there? — A. Yes, sir.
• Q. You examined it yourself? — ^A. I sat where I could see.
Q. You saw what the memorandum was? — ^A. Yes, sir.
Q. What was the memorandum? — A. I couldn't give you the figures, but It
would say "D" and then some figures, and I think some were written out
* straight"
Q. Were they written out " straight," any of them? — ^A. I think on one pack-
age was written out " straight."
Q. Some straights in every package in the ballot box? — ^A. They didn't have
the word " straight" written out. I think the memorandum
Q. Every package, every roll of ballots in the ballot box had written on it
"Str." or "straight"?— A. I didn't say that.
Q. Is that true?— A. I didn't examine all the packages in the box, so I
couldn't testify as to that. I simply saw the packages they took out and put
on that chair, and saw what the two inspectors claimed the memorandum was
on the back as to the straight ballots, and from that memorandum on the back
the chairman and the two Inspectors made out the list.
Q. I don't care for so much as you are giving. I am putting some questions
to yon and I want an answer to the questions.
Mr. Adams. I move to strike that out
(Last question read.)
446 GABNEY VS. SMITH,
A. 1 would not say that is true; I did not gamine the rolls or packages In
the box.
Q. Every package or roll of ballots in that box that you say had written
upon it " D. Str." or *' D. straights "?— A. I didn't say that
Q. Every package of ballots that you say that came out of that ballot box
had written on it " R, Str/' or "R, straight "?— A. That is not what I said.
Q. Is that so? — ^A. No; that is not so.
Q. The first time the inspectors came before the board of county canvassers
were you present when they arrived before the board? — ^A. Yes, sir.
Q. Were you present when the ballot box was opened? — ^A. Yes, sir.
Q. Who unlocked it?— A. Well, I don't know whether
Q. Or didn't it have a lock on? — ^A. Yes, sir; it was sealed.
Q. I am talking about a lock first, did it have a lock on? — A. Yes, sir.
Q. Did somebody have the key to unlock it? — ^A. Yes, sir.
Q. Do you remember who unlocked it? — A. I couldn't say which one of the
inspectora
Q. When it first cnnie before the board of county canvassers when yon were
present was the ballot box sealed in any way? — ^A. Yes, sir; it was sealed.
Q. It was sealed? — A. It had n string tied around over the leather band and
was sealed.
Q. Where was the sealing wax? — ^A. I think it was Just above the lock that
the string tied around.
Q. What was the seal; what was the modus operandi of the seal as you
observed it on that box at that time : just describe how it was done. — ^A. With
a shoe string tied around through the staple of the box and around over the
leather band and tied in a knot and sealing wax placed over it
Q. The sealing wax was on the piece of leather? — ^A. I think so.
Q. Are you sure about that? — ^A. Yes, sir.
Q. That is the way it was?— A. Yes, sir.
Q. Now, they broke the seal, did they?— A. Yes, sir.
Q. Who did that? — A. Well, it would be hard for me to say whether one of
the inspectors or Mr. Schneider, the chairman; I wouldn't want to be posi-
tive about that : but one of the two.
Q. Do you remember who produced the key to unlock the lock? — ^A. One of
the inspectors.
Q. He pulled it out of his pocket did he?— A. I didn't observe that.
Q. He handed out the key to somebody to unlock the box? — ^A. I think be
produced the key and stepped up and unlocked it
Q. Then they oi>ened the box? — A. Yes, sir.
Q. And took out some of the rolls of ballots? — ^A. The box was opened and
was examined by everybody before anything was taken out
Q. Were there any books in there? — ^A. Yes, sir; I saw some books in there.
Q. What books did you see in there? — ^A. Well, I recall the registration book.
Q. The registration book? — ^A. Yes, sir.
Q. Registration of what? — ^A. Registration of the voters who were registered
in that precinct. It wasn't opened up, but I saw the book that was used.
Q. That was the only Ijook you found in there? — ^A. Well, I will say this: I
would not be able in detail to say exactly every package or book that was
in there.
Q. I am not asking you anything about packages Just now. I want to know
whether that registration book was the only book that was in the ballot box
that you saw that first time? — ^A. I will not say it was.
Q, Well, do you remember of any other book? — ^A. I don't recollect now.
Q. You don't remember of any other book being In there that first time?—
A. It seems to me there was ; but I don't recollect
Q. Were the books on top or In the bottom of the box? — ^A. Down toward
the bottom.
Q. They took all the rolls of ballots out, then, did they? — ^A. No, sir.
Q. They had to get the books from out of the bottom? — ^A. They could ran
their arm down in the box and reach them.
Q. That is the way they got the books from out of the bottom? — ^A- Yes, sir.
Q. There was no memorandum in there at that time that you saw, was
there? — ^A. There was a
Q. Was there any memorandum in there loose. Now, I don't mean any memo-
randum noted on the ballot rolls, but did you notice that first time, when you
were looking to see what w^as in there, any memorandum upon a sheet of paper,
OABNBY VS. SMITH. 447
or anything of that kind, in the ballot box?— A. Well, now, Mr. Adams, there
was so much stuff in that box I couldn*t state.
Q. The question is as to your recollection of what was in that ballot box;
that is what I want to know. — ^A. I say I can't state.
Q. Very well. — ^A. There was so much stuff — I luiow there was a lot of other
things in there that had not been mentioned.
Q. What else was in there that has not been mentioned? — ^A. Ink and pencils
and instruction ballots ; and there was amendments that had not been used, and
little rolls that evidently were ballots that had been counted and tied up and
marks made on the back of them.
Q. Those were packages? — ^A. They were rolled up.
Q. All right; you go ahead. — ^A. There was legal cap and scratch figures, and
waste paper, I will call it.
Q. Where was all that stuff; in the bottom? — ^A. Yes, sir.
Q. This box, I understood you to say, was full ? — ^A. Yes, sir ; practically f ulL
Q. You'didn't take all those rolls of ballots out?— A. Me?
Q. I don't care whether you or somebody el^e; you didn't see them all taken
out? — ^A. They were not all taken out. The only thing I did see taken out was
the straight ballots that were marked.
Q. I suppose they laid kind of on the top, did they? — ^A. No, sir; they were
mixed up.
Q. All the straight ballots, whether straights or crooks, any way they kind
of laid on the top, didn't they? — A. No, sir; they were all mixed up, all through.
Q. You don't mean they were mixed up all through? — A. They were in rolls,
but one package was found cletir on the bottom and another in the middle, and
they got Into it with their hands, like a woman would mix bread.
Q. Kneading bread — got their arms through these rolls and pulled out some-
thing?— ^A. They kind of looked them over as they run across one of those
they picked that out and laid it down on a chair.
Q. You could see — ^notwithstanding all that the fact that this ballot box
was full, you could see all thoi«e things in there, could you not? — ^A. I will take
my 021th t^at what I stated was in that box was there.
Q. This memorandum that you say was taken out of that box the second
time these inspectors brought that ballot box before the board of county can-
vassers, did you see that in that box the first time?— A. Myself, personally, I
did not see it; that is true.
Q. Now, the first time this ballot box was opened, were you there when it
was closed? — ^A. Yes, sir.
Q. Who closed it?— A. I couldn't tell you.
Q. How was it closed? — ^A. It was sealed up and locked ; locked and sealed.
Q. I understand this ballot box is around here somewhere. — A. I saw one
come into the room.
Q. Where is it? — ^A. It is right over there in the comer.
Q. Can you get It over here where I can get a peek at It? — ^A. Yes, sir.
Q. Is that the box that is now before you, the ballot box that you have been
talking about? — A. As far as I know it is; it Is so marked; it was one similar
to that; the same size and color and general appearance; I have no question
but this is the same one, but it could be changed and I would not know it
Q. Is it sealed now? — A. It is.
Q. This ballot box that is marketl " Second ward, second precinct." you think
is the ballot box we are talking about, do you? — A. I think so.
Q. You live in Battle Creek?— A. Yes. sir.
Q. That ballot box is about how long? It is a square box or rectangular in
shape? — A. I think it is about 18 inches or 20 inches long and about 14 inches
wide.
Q. Rectangular in shape? — A. Yes, sir.
Q. A tin box? — A. Yes, sir.
Q. Right opposite in here — look at it — there Is a slot there about 3 inches long
that they put the ballots in?— A. Well, I think so; about 3 inches.
Q. Nearly one-half inch wide that slot is? — A. About
Q. How did the ballots get into that box, do you know? — A. I can tell you
the construction of the lid : there is a slide on the under side of the opening.
Q. You saw that when it was open? — ^A. I wouldn't say that I observed this
particular box in that way, but I have worked with one and acted as inspe(?tor
on the board in Battle Creek and I will say that slide is locked on the inside,
but still can be oiiened to get the ballots in.
448 CARNEY VS. SMITH.
Q. You can push that slide with a knife, now, can't you? — A. No, sir; it Is
not locked on the Inside.
Q. How is It locked?— A. With a padlock.
Q. You didn't observe when it was open before the board of county can-
vassers to tell how it was locked? — A. No, sir.
Q. You don't know now how It was locked? — A. No, sir.
Q. As a matter of fact, there is nothing on that seal over that ballot box now
to prevent anybody getting into that slot where the ballots are supposed to be
put through when they are put through. Is there? — A. There is a slide, a guard,
underneath.
Q. I nm talking about the slot that is open on the outside of the box-
there is nothing to prevent me from getting right Into that slot, is there? — A- I
think so.
Q. Come here and see. I can lift that leather strap and put my lead peocll
in the slot. — A. Yes, sir.
Q. As a matter of fact, all the seal that has been there, as far as putting that
strip over the slot is concerned, does not amount to anything this minute, does
it, so far as the outside sealing goes? — A. No, sir; it don't amount to anything.
Q. Not a thing? — A. No, sir; only to comply with the statute, I sm^Jose.
By Mr. Maynard:
Q. You can't open the lid without breaking the seal? — ^A. No, sir.
By Mr. Adams:
Q. As far as that ballot box Is concerned now, the leather strip put over that
slot might Just as well not be on there; isn't that true — as far as preventing
any tampering with the ballot box? — ^A. I will answer that by saying
(Last question read.)
A. Shall I answer it by yes or no?
Q. By both.— A. Yes, sir.
Q. You answer by both? — ^A. Yes, sir.
Q. You answer both yes and no? — A. Yes, sir.
Q. Well, this strap can be lifted right up now this minute at least 4 indies
above the entire slot through which the ballots go? — ^A. Not 4 inches.
Q. Three Inches?— A. Not 3 Inches.
Q. I can pull the leather, which is almost entirely free, from that slot,
can't I? — A. You can.
Q. There would be nothing to prevent me now from putting a ballot in there,
would there? — ^A. Nothing to prevent you if you could get the bottom slide open;
nothing whatever.
Q. So far as the seal on the outside of the box is concerned over the slot, it
doesn't amount to anything, does it, in the way of preventing anybody from
getting into that box? — A. That particular phase, it does not; no, sir.
Q. Now, when that ballot t>ox was before the board of county canvassers the
first time, when they got through with it what was done with the box? It was
closed, was it? — A. Yes, sir; closed and sealed up and turned over to
Q. W^ho sealed it? — A. I think the chairman of the board or one of the in-
spectors and the county clerk; all had a band in it
Q. The seal does not prevent you from unlocking the lock outside? — ^A. No, sir.
Q. If you had a key to unlock It? — ^A. No, sir.
Q. The box is just as easy to have a key inserted in it now with the sealing
over that box as if the sealing was not there? — A. Correct
Q. It doesn't seal the lock at all? — A. No, sir.
Q. Not a bit?— A. Not at all.
Q. It doesn't seal the slot? — A, No, sir; but it prevents opening it with<mt
breaking the seal.
Q. Well, as a matter of fact, who sealed that ballot box the first time? — ^A- I
think three of us had a hand in it; I think I went down and got the sealing
wax.
Q. Who locked the padlock? — A. I couldn't tell you,
Q. It was one of the inspectors, I suppose? — ^A. I think so.
Q. You are pretty sure about that? — ^A. Yes, sir.
Q. One of the board of inspectors of the second precinct of the second ward
of the city of Battle Creek locked that padlock the first time the box was locked
before the board of county canvassers, according to your recollection? — ^A. Yes,
sir; in the presence of the chairman and the members present
Q. One of the in8i)ector8 ot some of the inspectors? — ^A. There were but two
present the first time.
CABNEY VS. SMITH. 449
Q. How many did you have iu that ward, do you know? — ^A. We had three
inspectors.
Q. Some one or ones of the inspectors, as a matter of fact, put whatever
sealing was put on there the first time before the board of county canvassers
with your assistance? — A. Yes, sir; I think so.
Q. That is the way the sealing was done? — A. Yes, sir.
Q. The second time when that box was brought before the board of county
canvassers who unlocked it? — A. Thomas Thome, the city recorder.
Q. He actually did the act of unlocking it? — A. Yes, sir.
Q. He inserted the key into the lock? — ^A. Yes, sir.
Q. Where did he get the key. do you know? Did one of the inspectors hand
it to him? — A. No, sir; he had a key.
Q. And unlocked the lock? — A. Yes, sir.
Q. The seal was broken — whatever seal was over it? — A. Yes, sir.
Q. If any? — ^A. Yes, sir.
Q. And the box was opened? — A. Yes, sir.
Q. That time who locked it after they got through with it? — A. I think Mr,
Thome locked it. and Mr. Schneider and myself and Mr. Thorne took part in
sealing it. I think I went down and got the sealing wax the second time.
Q. What seal was used, what stamp was put on there in the sealing wax
that you put on when you sealed it up at that time? — A. Mr. Thorne brought
over a seal with him.
Q. Was it put on? — ^A. Yes, sir.
Q. Who put it on? — ^A. Mr. Thome.
Q. Was it sealed the second time when it was before the board of county
canvassers when they got through with it, sealed up after that Just as it is
sealed now? — ^A. As far as I know, in general appearance, it was. It seems
to me it was tied up tighter than that
Q. It is loose now? — A. I think so; I think it was tied up tighter in a bow
knot.
Q. There is nothing to prevent now, if you had a key to that lock, from open-
ing that and raising the lid up, Is there, enough to put a ballot in the box?
Look at it before you answer that question. — A. The lid could be raised.
Q. They could loosen the string and the slack there is on the so-called seal
that is on this box you could get that lock out of there and raise that lid to
that ballot box up enough to get inside of it, couldn't you? — A. You could not.
Q. You could not? — ^A. No, sir; you could only raise the lid not to exceed
three-fourths of an inch.
Q. You could raise it enough probably to slide 'that stick in? — ^A. No, sir; It
has a flaring edge of very nearly three-fourths of an inch.
Q. Now, I will slip my lead pencil in; it Is sticking in there now, isn't it? —
A. The point toward the top of the box.
Q. Well, take the other end of it ; it is now? — A. That end of the pencil point
is under the lid, but not Inside.
Q. To be perfectly fair about it, in the shape that ballot box is In now, it is
not safe is it? It Is not in such shape it could prevent tampering with or
slipping something in there; papers could be slipped in that box this minute
without Interfering with the seal or unlocking it? — ^A, Oh, I think if a man
should attempt to slip a paper inside of that box in some way, shape, or
manner he could slip a paper in there.
Q. You could slip one in there, could you not? — A. If I had a ballot I could
slip it in as well as any other piece of pai)er.
Q. A ballot when folded would be diflPerent than an ordinary sheet of pai)er?—
A. I didn't say the size of the ballot.
Q. You can see that there is a space as I lift this lid up. Now that ballot
you could get over the edge of this lid this minute? — ^A. I think a person if he
attempted to put in a ballot or sheet of paper could slip it in, in the condition
that box is in at the present time, as far as that is concemed.
Q. Such a sheet of paper as that is? So that after you had it there before
the board of county canvassers on the 19th day of November, 1912, when the
inspectors brought that ballot box over before the board of county canvassers,
it could have been slipped in there if that box was in just that condition
then? — A. There is no questoon about that; I would not say but what a man
could do it.
Q. Three inspectors were present the second time? — A. Yes, sir.
Q. Before the board of county canvassers? — A. Yes, sir.
286—13 ^29
.t
460 OABKEY YEL SMITH.
Q. The two Mr. Cliristiuns and Mr. Wilson, 1 understood you to say?—
A. Yes, sir.
Redirect examinntion by Mr. Maynasd:
Q. Witness, talcing the top of this box, I wish you would describe so as to
get it on the record, the way in which tlie slot is made in the top of the box;
it has a hopper around it. — A. The slot in the center of the box, in my Judg-
ment, is about 3 inches loni;, maybe a trifle over and about half an inch in
width with a hopiier of about 1 inch In height, flaring larger at the top than
at the bottom. I should Judge before it was Jammed up it would be in the
neighborhood of an inch and three-quarters across the top and a half inch at
the bottom.
Q. I understood you about 1 inch in height. — A. With a tin slide under-
neatli, now closed.
Q. When Judge Adams» counsel for the contestant, called your attention to
the fact that he had put his i)encil in the slide where they voteil the tickets,
where did that pencil lie? — ^A. It laid in the hopper.
Q. On tlie top? — A. In the hopi)er on the top of the tin which closed it.
Q. Is there any o]>ening there through into the box? — ^A. No, sir.
Q. Is there any way by which a person could put anything through from
the outside into that box without opening the lid and pulling the slide out from
under this hopi)er? — A. No, sir.
Q. Witness, what effect does the seal have by which this box is sealed; is it
possible to raise it up without breaking that seal? — A. It prevents the opening
of the lid of the box without breaking the seal.
Q. Counsel for the contestant asked you if it would now be possible to take
a paper and work it up over the edge under this lid and get it into that box.
Would it be iK>88ible for a i)erson to do that without the pai)er itself showing
Just how it had been injected into that box, do you think? — ^A. I think if a
man attempted to put a pai)er in the box it would be imi)osslble for him to
put it in unless it showed some form of crumpling or creases or something of
that kind, showing it would have to be w^orked through.
Q. Would it be possible for him to open that box without disturbing the seal
or disturbing any one of the rolls you saw in the box? — ^A. That would be
utterly impossible.
Q. Could he roll up and insert it into that box without destroying — ^brealdng
the seal? — A. No. sir.
Q. You saw this paper, did you, that you mentioned as a memorandum that
one of the members of the board of election inspectors examined, and from
which corrections were made; did you see that memorandum? — ^A. I think I
did; yes, sir.
Q. In you opinion would it have been impossible to insert that paper into
thMt box and leave It in the api)earance it was in when they found it when
that box was opened, and as it came before the t>oard of county canvassers?—
A. I don't think it would be possible ; I would like to try it now and see.
(Whereupon the hearing was adjourned until 1 o'clock p. m., Friday, April
4, 1013.)
RAY B. HART was recalle<! for further cross-examination.
By Mr. Adams :
Q. I understood you to say you couldn't put anything into that box except
through the hole in the hopper? — A. You misunderstood me.
Q. Did you mean to say that? — ^A. I didn't say that.
Q. You say you didn't say that? — ^A. Yes, sir.
Q. If you wild it, you didn't mean to say It, did you?— A. I don't think I
said it; if I did say it, I didn't mean to say it
Q. As that ballot box is now, the lid could be raised enough so a paper could
be slipped into that box?— A. As I said before, I think that tin box lid could
be sprung open far enough i)ossib1y to slip in a paper; I think tliat is true; it
could be worked In.
Q. You stated this morning in giving the dimensions that the dimensions of
the box were approxiniatoly whatV — A. I think about 20 incheH long and prob-
ably 14 inches wide and about 12 inches high.
Q. Now, the lid in which this slot is has been Jammed in, hasnt' it — ^Jammed
down in there? — A. Yes. sir; the lid is bent In.
Q. Considerably? — ^A, To quite an extent.
OABNEY VS. SMITH. 451
Q. Right over the hole, over the slot, over the edges of the lid; how far is It
down to the lid Itself ?— A. I don't get the question. .
Q. How much is it bent in ; would you say?— A. Over what particular part?
Q. Over the edges of the lid.— A. The principal part of the lid, I would say,
there is a depression or bending down over li inches at its maximum depth.
Q. And the lid was about in the same shape the first time it was brought
over before the board of county canvassers? — ^A. I couldn't say as to that.
Q. Your recollection — you saw it, didn't you? — ^A. I have no recollection as
to just the condition of that lid ; I paid no attention to it
Q. The second time it was brought over was the lid in about the same condi-
tion it is in now? — ^A. I have no more recollection than I have of the first time.
Q. Does it look any different to you now than it did then?— A. No, sir;
after my attention has been challenged to it now, I couldn't tell you the con-
dition it was in.
Q. It does not look any different to you at this time? — A. No, sir; it does
not look any different to me now.
Redirect examination by Mr. Maynabd:
Q. That is, you don't remember how it looked when it was here before? —
A. I do not.
Q. Your attention was not challenged to it then? — ^A. No, sir.
Q. Are you able to say it is in the same condition now it was when you first
saw it? — A. The general condition ; do you mean as to being jammed?
Q. Yes; as to being jammed, and so on. — ^A. I don't know anything about it;
candidly I don't know.
Q. What Is the appearance of this jam in the top, whether done with blows
or how; what is the api)ea ranee of it? — A. The entire lid is crushed down;
that one edge which was ridged is bent down ; I should say it was by means of
blows, if my opinion is worth anything; It could be done in various ways,
probably.
Q. With the box in the condition it is now in. would you say the lid could be
raised without disturbing the seal in front? — A. That lid could be raised about
one-half an inch, taking out the slack.
Q. I mean raised up so you could get inside the box? — A. No, sir; not with-
out disturbing the seal. *
Q. How is the lid fastened down? — A. There is a staple from which there is
a loop, a steel loop or hasp, and through this padlock and from that padlock a
leather strip tied with a string to the box and sealed.
Q. I will ask you If in your opinion it would be possible to open that box and
empty the rolls of ballots you saw in the box without destroying the seal In
front? — ^A. No, sir; that would not be possible.
Recrosa-examination by Mr. Adams:
Q. These figures that you state one of the inspectors used the second time
when the ballot box was before the board of county canvassers were the figures
that were on the sheet of paper? — ^A. Yes, sir.
Q. A single sheet of paper ?^ — ^A. Yes, sir; a single sheet
Q. Such a sheet of paper as that was on which those figures were, which
sheet of paper and the figures on it were used in making some changes of these
election returns, could be put into the ballot box this minute without unlocking
it or breaking the seal, could it not?— A. I don't know; I think so; I think it
could be, but it would show some evidence of being put in, I think.
FRED L. CHRISTIAN, being first sworn to tell the truth, the whole truth,
and nothing but the truth, testified In behalf of the contestee as follows :
Direct examination by Mr. Maynard :
Q. Mr. Christian, where do you reside? — A. Battle Creek.
Q. What is your age?— A. Thirty-two.
Q. What is your occupation? — A. I am a bank teller.
Q. What bank?— A. Old National Bank.
Q. Where?- A. Battle Creek.
Q. The city of Battle Creek, Mich.?— A. Yes, sir.
Q. Were you present at the general election held on the 5th day of Novemt)er,
1912, in the second ward of the second precinct of the city of Battle Creek,
Mich.? — A. Yes, sir; I was.
Q. Did you have any official connection with the election board? If so,
what? — A. I was chairman of the board.
452 CABNEY VS. SMITH.
Q. What time did you begiu the election that day? — A. Seven o'clock.
Q. Were you present at the electicm during the day? — A. Yes, sir.
Q. Were you present when they counted up? — ^A. Yes, sir.
Q. Witness, have you heard the testimony of the witness Ray Hart, who
prece<le<l you? — A. I heard the most of it.
Q. Were you summoned with the balance of the l)oard of insi^ectors of that
precinct to come before the board of county canvassers on the 19th day of
November last? — A. That was the second time I was there.
Q. Do you know of the lM)ard of in.si)ec»torF coming before the board of county
canvassers previous to the time you came? — A. I knew of It; yes, sir.
Q. How did you come to come here the second time? — A. Why, by subiKPna, to
ai»pear before the canvassing board.
Q. Did you bring tliis ballot box with you when you came before the board? —
A. Air. Thorne, recorder of the city of Battle Creek, and myself brought this
box.
Q. Was the box ol)ened here? — A. It was.
Q. What did you do? — A. Mr. Schneider — I think he was chairman of the
canvassing board — and Mr. Thome, the custodian of the box. oi)ened it before
the canvassing board and the representatives of both i>arties concerneti and
the decision of the board was
Mr. Adams. Hold on about that decision. I object to the witness telling what
the decision was: the dec^lsion of the board has already been given by the
board and the record Is conclusive, and it Is hearsay and Incompetent.
A. ((\)ntliuilng.> The board declde<l that if we conh\ not in any way connect
those books without molesting any of the ballots or things In the box of that
kind that It would be the i)roi>er thing to do and asked us If we could do that
and I told them we could. They gave us a certain length of time to do It,
In which time we made the corrections.
Q. What was that made from? — A. That was made from a memorandum
which I made on ele<»tion day.
Q. Tender what circumstances did you make that memorandum? — A. In work-
ing in the bank It Is customary always to balance everything at night, and
when we had our ballots all counted I said to the parties, " Now. I want to
put the number "
Mr. Adams. I objec^t to the conversation as hearsay and incomjietent.
A. (continuing). So in that way I made the memorandum.
Q. WlMit did you make it with? — A. I used a blue pencil that we had to mark
ballots with when they came in to vote, on a sheet of paper.
Q. What kind of a sheet of paper? — A. If I remember correctly it was fools-
cap; it was a plain white sheet of paper, on the back of which I wrote.
Q. What did you write?— A. I wrote down all the straight ballots, split bal-
lots of the diflFerent parties who voted, to see tliat the totals were correct witii
the number of ballots cast ; also that the five or six ballots put on one side that
were not correct.
Q. Did you make that personally yourself? — A. Yes, sir; I did.
Q. What did you do with It when you got It made? — A. It was placed in
the ballot box with all the other things before It was sealed.
Q. When tliey opened the ballot box there what did you find? — A. I found
everything as good as it could possibly be ; as it was when I left it on election
night before sealing the box.
Q. Did you find that memorandum? — ^A, Yes. sir.
Q. Do you know it was the sjime one you made? — A. I know It was.
Q. From that what did you do? — A. We made the corrections and the neces-
sary corrections In the books.
Q. In the returns? — A. Yes, sir; in the returns.
Q. Can you tell what tliose returns were; what those corrections were, I
mean? — A. Adding the straight votes to the different parties ooncemed, to the
split votes in order to make a total.
Q. Your original books that you had the tallies on here, what did they omit? —
A. They omitted the straight votes.
Q. For each party? — A. For each party.
Q. When you first counte<i the ballots on election night, what did you do with
the straight ballots?— A. We rolled each party's ballots by themselves and tied
a string around them and marked tliem.
Q. On the outside? — ^A. So many ballots, straight ballots for each party, what-
ever the party was.
OABKEY VS. -SMITH. 453
Q. I show you the returns, the book and page, on the cover of Exhibit 47,
and ask you if that is the return you made to the election board on the 19th of
November last? — ^A. I do.
Q. Is it or not; I don't know whether that is responsive or not? — A. It is
the one sworn to here before the canvassing board.
Q. On the opposite page — I will withdraw that, you were not here. — A. No,
air; I was sick at that time.
Q. I will show you the return on Exhibit 43 on the last page of the cover,
inside of the cover, and ask you if that is the return you made to the board
at that time?— A. It is.
STARR K. CHURCH, recalled for further cross-examination l>y Mr. Adams,
teetifled as follows:
Q. Doctor Church, you stated that J. Hatch was the challenger for the
I*rogres8lve Party. — A. Yes, sir.
Q. You stated that he went Into the booth in. one Instance? — A. Yes; just one.
Q. Was that with the old man or the younger man that had instructions
there tliat day? — A. I am pretty certain It was the older man.
Q. Mr. Simmons went in at the time as insi)ector there of that board? — A.
That is my idea.
Q. And did the marking for the man? — ^A. Yes, sir.
Q. Did you hear Mr. Hatch say anything while in the booth ? — A. No, sir ;
I don*t remember of hearing him say a word.
Q. You Just stood there. and saw what waa going on? — A. Yes. sir.
Q. That is all Mr. Hatch did?— A. Yes, sir.
Redirect examination by Mr. Matnard:
Q. Now. you saw him but you don't know what he was marking, you don't
know what he was doing? — ^A. He was in there, I know that.
Q. Was he a candidate for office? — ^A. Yes, sir.
Q. He was one of the candidates running for office on that ticket? — A. Yes,
air.
Recross-examination by Mr. Adams:
Q. Mr. Hatch lives in Marshall, does he? — A. Yes, sir.
Q. And Mr. Simmons lived here? — ^A. Yes, sir.
Q. Who was the other member of that board? — ^A. Mr. Warren.
Q. Does he live here? — ^A. Yes, sir.
Q. All lived at Marshall, the second ward of this city? — A. Yes, sir.
Q. Also Mr. Hatch, he lives right here? — A. Yes, sir.
Mr. Maynard. I object to all this as iucomi>etent and immaterial.
FRED L. CHRISTIAN, recalled, testified further in behalf of the contestee as
follows :
Direct examination by ^Ir. Maynard:
Q. Witness, I turn to the contestant's Exhibit No. 43, on page 7, opposite the
candidate's name, John M. C. Smith, candidate for Congress, opiwsite the name
of John M. C. Smith I see certain figures, what are those figures; what does
that 31 represent? — A. That 31 represents si)lit ballots.
Q. Are there any tallies opposite John M. C. Smith's name; if .so, how many? —
A. Do you mean the red figures?
Q. No ; the tallies.
Mr. Adams. You got the wrong exhibit.
Q. I show you Exhibit 42. On i>age 12. opposite the name of John M. C.
Smith, do you see any ttillles there? — ^A. Yes, sir.
Q. How many? — ^A. Thirty -one.
Q. What do they represent? — ^A. The split votes.
Q. Are they set down opposite his name, the 31? — ^A. Yes, sir.
Q. What other figures do you find besides the 31 ? — A. Sixty-six.
Q. What does thiit represent? — ^A. The straight votes.
Q. Were there that many straight votes for John M. C. Smith? — A. There
were; yes, air.
Q. Add together, 31 and 66 make how many? — A. Ninety-seven.
Q. Did John M. C. Smith receive that many votes at that precinct that
day? — A. Yes, sir; he did.
454 CARNEY VS. SMITH.
Q. Take the name of Claude S. Camey; are there any tallies opposite his
name? — ^A. Yea, sir.
Q. How many? — ^A. Twenty-three.
Q. Were those recorded there? — ^A. Yes, sir.
Q. Then what other figures besides that? — ^A. Thirty-eight.
Q. What does that represent? — A. The straight votes for Claude S. Camey.
Q. Is that all he received?— A. The 23.
Q. Of the straight votes? — ^A. Yes, sir.
Q. The split votes, how many? — ^A. Sixty-one.
Q. Was that recorded for him? — ^A. Yes, sir.
Q. Is that all that he received in the second precinct of the second ward of
Battle Creek at that election? — A. Yes, sir.
Q. For Congress? — ^A. Yes. sir.
Q. Cast your eyes on that ballot l)ox. Do you see the dilapidated condition
of the box? — ^A. Yes, sir.
Q. Was that so when 5-ou last saw it before this time? — A. No, sir.
Q. Was it SQ when you brought it here before the board the other time? —
A. No. sir.
Q. Do you know how this became in that condition? — A. Mr. Thome said this
morning
Mr. Adams. I object to that.
A. I don't know personally.
Q. Now, witness, what is the difference now in its appearance from what It
was when you saw It? — A. The top has been bent In.
Q. Sagged in? — ^A. Sagged in.
Q. Now. when you were called upon to make this correction at the time you
appeared before the board, did they allow you to have any assistance from tiie
ballots which had been marked by you and rolled up and deposited In the box ? —
A. They didn't allow us to use the ballots at all.
Q. How did you make your correction? — ^A. By the memorandum.
Q. And that alone? — ^A. And that alone.
Q. How could you have made that correction by the memorandum alone?
Did the board of county canvassers make any comparison between your ne^
figures and what you had given them on the 13th? — ^A. They noticed that the
red figures which we made were made the same.
Mr. Adams. I move to strike out the anfswer. It is hearsay and Incompetent
and a conclusion of the witness.
Q. What did they say to you about it?
Mr. Adams. I object to what the board said to him, or any member of the
board, as incompetent and hearsay.
A. They said they were the same as they found them on their previous
meeting.
Q. Did you compare them yourself afterwards or at any time? — A. I don't
think I did. I am sure I did not.
Q. The figures you made from your memorandum you made on the returns on
the 19th — ^j'ou and the rest of the board? — ^A. Yes, sir.
Q. And you never compared them? — A. I didn't compare them.
Q. After you had made this correction what was done with the memorandum
that you u.sed at that time? — A. It was placed back in the box.
Q. As far as you know i)ersonally what has become of that memorandum? —
A. It is still in the box.
Q. If you were to see it, could you recognize it as to whether it is the one
you made or not? — A. Yes, sir.
Cross-examination by Mr. Adams:
Q. You didn't see these red figures the second time you were before the board
of county canvassers? — A. I was not there the second time — I was there the
second time.
Q. You only went before the board of county canvas.sers at this November,
1912, election once? — A. Yes. sir.
Q. Tliat was on what date? — \. The 19th of November.
Q. You didn't look these figures over at that time in Exhibit 43; that is, the
red-ink figures? — A. I think I saw those re<Mnk figures. I am sure I did.
Q. I understood you to say that you didn't compare the figures to see whether
they were correct or not. You wrote them in the book? — A. I didn't write tlie
red ones; no, sir.
^ Q. But you saw that writing? — A. No, sir.
OABNBY VS. SMITH. 455
Q. You didn't compare any figures with the red-ink figures, did you? — A. I
think you will find — in my writing I thinlc the figures
Q. Wait a minute. — ^A. I am quite sure we did.
Q. Did you?— A. Yes, sir.
Q. What figures did you compare with the red-inlc figures? — A. The figures I
made — the memorandum with the red figures there.
Q. W^hat do you mean by making a memorandum? — A. The one I wrote on
election night that was in the ballot box.
Q. You were chairman of that board? — A. Yes. sir.
Q. You are teller in the national bank there? — A. Yes, sir.
Q. At Battle Creek?— A. Yes, sir.
Q. You were teller in the National Rank of Battle Creek before November 5,
1912?— A. Yes, sir.
Q. And had been teller of the National Bank of Battle Creek how long before
November 5, 1912? — A. About five years and a half.
Q. You are how old?— A. I am 32.
Q. What did you do in assisting in counting the ballots November 5, 1912, at
night on that election board that you remember of? — A. I counted the ballots.
Q. What did you do? — A. I counted ballots.
Q. What did you do in the way of counting ballots? Tell us what you did. —
A. Why, we first went through the ballots.
Q. What did you do — ^what part of it did you do? — ^A. I went through the
ballots and picked out the straight ballots.
Q. You did that?— A. I didn't do it all; I and the other inspectors did it.
Q. You did part of it and somebody else did part of it? — A. We all did part
of it, and when we had them sorted out — the straight ballots — I counted them
and rolled them and after the other had counted them marked them on the
outside.
Q. Who marked them on the outside? — ^A. I did.
Q. Those marks were on the outside of those ballots, were they, when you
came here before the board? — ^A. Yes, sir.
Q. That is before the board of county canvassers? — ^A. Yes. sir.
Q. On the 19th day of November? — A. Yes, sir.
Q. All right. Now, you didn't count on that election board — you didn't count
the splits, did you? — ^A. I counted my share of them.
Q. You counted your share of them? — ^A. Yes, sir.
Q. And kept tally of them?— A. And kept tally of them.
Q. What did you keep that on? — A. On a record.
Q. Did you have any clerks of that election? — ^A. Yes, sir.
Q. Who were they?— A. Mr. Gillis and Mr. Clare.
Q. Didn't they keep the tallies as the voters were called oifV — A. Yes, sir.
Q. You didn't, did yon ? — A. I kept track of everything.
Q. Where did you keep it? — A. On a piece of paper.
Q. You were reading them oif. were you not? — A. Yes, sir; read them off and
took them down at the same time.
Q. You read them off and took them down at the same time? — A. Yes, sir.
Q. Do you want to swear on your oath that is what you did? — A. Yes, sir.
Q. Where Is the paper on which you kept the tallies as you called them off? —
A. I don't Just know whether in there or where it is.
Q. If it is not in the ballot box, why didn't you put it in?— A. I don't know;
everything was put in there, scraps and all.
Q. If you kept any such tally as that you put it in the tally box? — ^A. Un-
doubtedly.
Q. Those ballots were pretty good size ballots, about 18 inches long? — ^A. I
don't remember the dimensions : quite a large ballot.
Q. Was It not approximately 16 or IS inches long? — A. I will not state on
the dimensions at all.
Q. Have you any notion of distances at all? — A. I don't know.
Q. Was it more than 6 inches? — A. Yes, sir.
Q. Was it more than a foot long? — A. Yes, sir.
Q. More than a foot wide, was it not? — A. Yes, sir.
Q. It was a pretty big ballot? — ^A. Yes. sir.
Q. I suppose you, as one of the inspectors of that election, held that ballot
up and called off the names when you were reading the splits? What vou
called for John M. C. Smith?— A. Yes, sir.
Q. And Claude S. Carney? — A. Yes, sir.
456 CABNEY VS. SMITH.
Q. And for every other fellow who had a vote on that imrticular ballot?—
A. Yes, sir.
Q. Stood up and did it?— A. Yes, sir.
Q. Do you mean to say when you were calling off those split ballots that
you also kept tally of every man who got a vote? — ^A. I called
Q. Hold on a minute, you personally I am talking about now. — ^A. I didn't
call them and set them down at the same time.
Q. Then, when you were calling off the names of those who got a vote on the
split ballots you did not keep track of the tally at the same time you were
calling off or reading off the ballots? — A. No, sir.
Q. Now, did you call off all the splits?— A. I will not say 1 did.
Q. Don't you remember now whether you did or not? — A. I am sure I did not.
Q. Did you call off more than half of them? — ^A. Thereabouts.
Q. You say thereabouts; do you mean more than half of them? — ^A. About
half.
Q. Who called off the other half? — A. One of the inspectors.
Q. When the other inspector was calling off some of those split ballots who
kept the tally?— A. I did.
Q. What did you keep it on? — A. On a pai)er.
Q. Did you keep it on a tally-sheet book? — ^A. I think the marks are in the
tally
Q. Did you keep it on a tally-sheet book? — A. I did not.
Q. I want to know whether you want to say when you kept the tally you
kept the tally on a tally-sheet book? — ^A. No, sir.
Q. Did you keep any tallies on a tally-sheet book? — A. I did not
Q. When you were tallying tliere on that election day? — ^A. No, air.
Q. What kind of a piece of paper did you tally on when you kept the tally?—
A. It might have been
Q. I don't care what it might have been; I want to know what it was?—
A. A piece of paper; a paper that was supplied by the city council for any
kind of scratch work on — work of that kind that was necessary.
Q. Did you write down on that sheet of paper the names of tlie different
candidates on that ballot? — A. That — 1 couldn't swear whether I wrote thMn
down there or not.
Q. I want to know, did you not, when you began keeping the tally on that
slieet of paper, write down on that sheet of paper the name of every candidate
there was on that ballot that was voted for at that election. November 5,
1912?— A. 1 couldn't say that I did.
Q. Did you or didn't you? — A. 1 don't remember.
Q. You didn't, did you? — A. We sometimes use
Q. I don't care about sometimes; now we are talking about a specific thing.
and don't get away from It; let us keep to that. Now, then, I want to get to
tliat imper you were keeping tally on. Keep your mind on that paper; that is
the only thing I am going to talk about for a little while. How big was that
piece of pai)er j'ou were kee[)ing tally on tliat night*/ — A. I don't know.
Q. Can't you give us any sort of an idea'? — A. No, sir.
Q. You can't tell here now on this record that is going down to Congress
how big a sheet of paper that was that yon were keeping tally on that night?—
A. No, sir.
Q. You are a teller in a hank down there'/ — A. Yes, sir.
Q. Was it a foot square'/ — A. 1 don't know^.
Q. Maybe it was not square at all : was it a foot one way? — A. I don't know.
Q. You don't know that? — A. No, sir.
Q. Was it 2 feet one way? — A. 1 don't know.
Q. Did you have any names written on it'/ — A. I had names on it
Q. Who wrote the names ou it'/ — A. Whether written or printed I will not
say.
Q. You don't remember that'/ — ^A. No. sir.
Q. If they were written on, who wrote them on? — A. Myself or the fellow
who was calling back did.
Q. Did he use that paper you kept tally on, too'/ — A. The fellow who I
chock wl bnck with also used that paper.
Q. Did he put any tallies on if/ — A. I don't remember in this particular case
whether he checked back whjit I had put down or whether he put down new
tallies of his own.
CARNEY VS. SMITH. 457
Q. You had a tally sheet book furnished bj' the couuty clerk of the county
of Calhoun in that very precinct — your board had that day, didn't you, two of
them, on which to keep a tally of the split votes V — A. Yes, sir.
Q. Didn't you keep the tallies on there? — ^A. Yes, sir.
Q. Have you now the tallies on this tally sheet book furnu»hed there to you
that day for that veiy purpose; if you had that tally sheet book there why did
you use a sheet of paper to keep them onV — ^A. The clerks used the tally sheets.
Q. Why did you keep a tally at all; you were not the tally clerk? — ^A. Be-
cause the two clerks could not get through with tlie work in a reasonable
length of time.
Q, What time did you get through counting the ballots that day? — X.
About 10.30.
Q. Didn't the clerks of that election that were appointed there, the regular
legal clerks of the board, didn't they keep a tally of the ballots. £q)lits and
straights that were counted there and called off that day? — A. Yes, sir.
Q. As they wei-e called off? — ^A. Yes, sir.
Q, Now. if they keiH them all as they were called off then what was the
necessity of you keeping them on a sheet of paper?
Mr. Maynahd. 1 want to object to this as incompetent and immaterial, and
idle for anyone to ask a question of that kind ; the question is whether he made
a mistake or not, and that does not Ujpi)ear.
Q. Now, I understand you to say that the tally clerks of the election kept a
tally of the ballots that were called off or read off? — ^A. Yes, sir.
Q. All the time from the beginning of the count until you got through? —
A. They kept track and did the checking, sometimes the inspectors and the
clerks.
Q. I am talking about the clerks; I don't care about the insi)ectors. I want
to know whether from the time you began counting that night of November 5,
1912. in this precinct in the city of Battle Creek your clerks of election there
regularly appointed kei)t a count of the tallies as they were called off from the
beginning to the end — did they or didn't they? — ^A. They did.
Q. Now, do you mean to be understood that you. by keeping count of them
along, expedited it in any way? — A. My impression is that I made afterward
this memorandum that has been referred to simply to prove that
Q. (Interrupting.) I want to know whether you
Mr. Mavnabd. I ask that the witness be permitted to answer the question.
Q. You can say whether it expedited it or not. — A. Simply we made a
memorandum to prove that the number of ballots cast agreed with the total
number given to each party.
Mr. Adams. I move to strike out the answer as not responsive.
Q. I ask you now whether in the face of your testimony when you sny that
the clerks there at that election made those tallies on the tally sheet books as
the votes were called off to them, and that they did that from the start to the
finish, if you in any way exi)edited the work of that election or hurried it
along by you keeping track of any part of those ballots on some other sheet
of pai)er? — A. I didn't hurry it along.
9. I thought you didn't. Now. then, your name is Fred L. Christian? — ^A.
Pred L. : yes, sir.
Q. I show you Exhibit 43; is that your name there? — A. Yes. sir.
Q. On page 16?— A. Yes, sir.
Q. You signed that certificate, did you? — A. Yes. sir.
Q. You signed it on the night of the 5th of November, 1012, did you? — A.
Yes, sir.
Q When you concluded your election work there on that election board?— -A.
Yes, sir.
Q. Now, then, you kept that memorandum there; when you got through that
night, you checked up with your figures, didn't you? — A. Yes, sir.
Q. To see that It was all right? — A. Yes, sir.
Q. You checked up with the memorandum you made there? — A. No, sir.
Q. What did you keep it for, then? — A. I put it down to prove, as I said
before, the correct number of votes were cast and numbered up correctly.
Q. So when you got through there that night with the figures in the tally
books, those corresponded and proved the figures there to your board, didn't
they? — A. Yes, sir.
Q. When you got all through that night and ready to finish up you looked
to see whether the figures they made there in those were alike, didn't you? — A.
Yes, sir.
458 CARNEY V^S. SMITH.
Q. Then why didn't you put them down on this book? Just tell me that.
Look on page 7. — A. I hnd two competent clerks that had done the work before
for me when I acted ns chnlrnijin. and this work was proved up practically, all
they had to do was to copy it, I glanced over part of it and found it correct
Q. What part did you glance over? — ^A. The number of ballots cast to see that
they numbered with our machine. We used a voting machine.
Q. A voting machine? — ^A. No. sir ; we used ballots.
Q. You started to tell us that you used a voting machine, didn't you? — ^A. No,
sir ; we did not that day, but to see that the number of ballots cast totaled up to
875, I think.
Q. They totaled that, did they? — A. I think somewhere in that neighborh<M>d.
Q. Did they total 275 or 375?— A. I think 375.
Q. Just exactly? You had just as many votes there that day as you had
names on the poll list, did you? — A. No, sir.
Q. You did not? — A. We had five or six votes taken out because they had
voted for more than one candidate for the same office, or something else of that
klDd.
Q. You had just as many votes, though, in the ballot box when you opened it
and began counting as you had names on the poll list, didn't you? — ^A. Yes^ sir.
Q. Now, that is not right, is it? You only had 374, didn't you? — ^A. Something
like that
Q. You had 375 on your poll list, didn't you? — ^A. Some didn't vote for a
certain party.
Q. I don't care who they voted for. Here is Exhibit 45 : it says you had 375
votes. — ^A. Yes, sir,
Q. Three hundred and seventy-five men voted there that day? — ^A. Yes, sir.
Q. You didn't have 375 voters ou your |)oIl book, did you? — A. We had more
than that.
Q. How many more did you have? — ^A. I don't know.
Q. You only had 374, didn't you?— A. I don't know.
Q. You don't know? — A. I think we had more than that; we had more than
that. W^e had 375 men vote, as the list shows. Some ballots were taken out,
whether they were the national ticket I don't know, I don't remember, or
whether it was some bond issue ; I know there were some votes that we couM not
count
Q. You were teller in a bank and chairman of the election there that day.
You didn't look through that book before you signed that certificate, or did
you? — ^A. Certainly I did.
Q. Well, you had your memorandum right there before you and signed that
certificate saying that return was correct; why didn't you notice that you
didn't have any straight ballots in there? — ^A. I can't say that I had my
memorandum before me at that minute.
Q. I mean to refer to Exhibit 42. Now, then, you looked that through, and
you kept a tally and your clerks kept a tally, and you signed that return saying
they were correct, didn't you? — ^A. Yes, sir; sure.
Q. They were not correct, were they? — ^A. Evidently not.
Q. You discovered afterwards that they were not correct? — ^A. Yes, sir.
Q. That was the care you gave there to the conduct of the election that day
as chairman of the board and teller in a bank there at Battle Greek? — ^A. Yes,
sir.
Q. Now, then, you stated that there were 66 straight ballots in the ballot
box when you got through that day for John M. C. Smith? — ^A. Yes, sir.
Q, You said that there were 38 straight ballots in the ballot box that day.
November 5, 1912, when you got through, or your board did, for Claude S.
Carney? — A. Yes, sir.
Q. Did you count all the straight ballots for Claude S. Carney? — A, I think
I did.
Q. Did you? — A. I will not say right now whether I counted all the straight
votes for Claude S. Carney.
Q. Did you count all the straight votes for John M. C. Smith for Repre-
sentative in Congress? — A. I will not say that I counted all of them.
Q. If you did not, then you do not know positively of your own personal
knowledge whether there were 66 straight votes for John M. C. Smith or not
in that ballot box that day when you counted, or began counting: do you?— A.
We marked C6.
OABNEY VS. SMITH. 459
Q. Then you don't know whether there were 68 straight votes in the ballot
box— or 66 — for John M. O. Smith for Representative in Congress?— A. I know
there were.
Q. Too didn't count them all?— A. I would not say I did.
Q. Still you know there were? — ^A. Yes, sir.
Q. You know there were 38 straight ballots in the ballot box for Claude S.
Carney for Representative in Congress? — ^A. Yes, sir.
Q. You didn't count them all? — ^A. I will not say whether I did or not.
Q. You counted one-half of the split ballots, you say? — A. I didn't say I
counted half; I said approximately. I think I counted in the neighborhood of
one-half.
Q. You don't know how many there were of your own knowledge ; you don't
know how many there were for John M. C. Smith — split ballots? — ^A. I couldn't
swear to Just how many there were for John M. C. Smith.
Q. You don't know how many there were for Claude S. Carney for Repre-
sentative in Congress — splits — do you? — A. No, sir.
Q. Of your own knowledge? — A. No, sir; I couldn't tell of my own knowl-
edge.
Q. This memorandum you are talking about, you say you put in the ballot
box?— A. Yes, sir.
Q. After you used it to make out your returns you thought It was so impor-
tant that you sent the returns A. I made it to prove up the number of
ballots.
Q. You didn't use it to prove it, even, did you? — ^A. Yes, sir.
Q. You didn't prove it did you? — A. I proved it; yes, sir.
Q. You didn't enter it in your book ; you didn't get your book right, did you,
after you went to the trouble to keep that memorandum? — ^A. No, sir.
Q. You sent the returns to your board of county canvassers of Calhoun
County that your returns as chairman of the election board were the correct
ones, when, as a matter of fact, they were not correct at all, and you didn't
use your memorandum to make your returns correct ; that is, from the memo-
randum we are talking about? — A. Not in the book.
Q. You were a Republican, were you not, on the 5th day of November, 1912? —
A. I was.
Q. And had been for some time before that? — A. Yes. sir.
Q. There was another gentleman named Christian who was a member of the
board ; he was a brother of yours? — ^A. Yes, sir.
Q. He was a Republican, too? — A. He can answer for himself.
Redirect examination by Mr. Matnard:
Q. Did you do your best to try to make out those returns for that election and
do it in an honest way? — A. Yes, sir.
Q. When you came here what did you find was omitted from those returns? —
A. It had been neglected to put down the straight votes.
Q. Of each party? — A. Of each party.
Q. Those had been counted that night of the election, had they? — A. They
had been counted and checked and rechecked on election night.
Q. You supposed when you signed it that it contained a statement of the
straight votes? — ^A. Yes, sir.
Q. Was that the first time you ever knew of a clerk making a mistake in
entering in a book? — A. On any board of which I was a member I heard about
mistakes.
Q. You were not making mistakes to help John M. C. Smith, were you? — ^A.
No, sir.
Recross-examinatlon by Mr. Adams:
Q. What you mean is that this is the first time you ever got caught at any
mistakes during your work on the election board; is that what you mean? — ^A.
I don't know whether you would dare to ask me that on the outside.
Q. This is the first time your mistakes have been detected, to your knowledge,
in the work you have had to do? — A. It is the first time a mistake has ever been
known or ever been made.
Q. Made public, you mean?— A. I think if I had made a mistake it would
have been made public.
Q. There has been no contest before over any returns you have had anything
to do with? — ^A. No, sir.
Q. They haven't been opened up to examination? — ^A. I understand all of
them were examined.
460 CABNEY VS. SMITH.
Q. After you put them in the ballot box?— A. After that change is made.
Q. This is the first time you have known of their ?oing into the ballot box of
your work, to see whether the returns you sent in were not in the ballot box
corresponded with the vote in the bnllot box? — A. When I put the returns In the
box. that the board of canvassers examined them to see whether they were
correct.
Q. This is the ftrst time the ballot box has lieen opened and any comparison
been made with the returns you made out aiMi sent to the county clerk of
any election you have had any things to do with, that you know of? — A. T think
they always order a count before the board of county canvassers; this Is the
first time there has been a contest.
Q. Don't you know that the canvassing board do not open the ballot boxes
at all unless there is a contest and have no legal right to? — A. J don't know.
Q. Didn't you read the election laws of the State of Michigan? — ^A. I have
read parts of them.
Q. Don't you know that is the law? — ^A. That is not ray business.
Q. Do you know that is the law? — A. I don't know as It is the law.
HARRY CHRISTIAN, being duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified as follows:
Direct examination by Mr. Maynard:
Q. What is your given name? — A. Harry Christian.
Q. Where do you rifside?— A. Battle Creek. Mich.
Q. What is your occupation? — ^A. I am a mechanic.
Q. What is your age? — A. I am .34.
Q. Were you present at the voting place at the general election ^A. (Inter-
rupting.) Yes, sir.
Q. (Continuing.) Held on the 5th day of November, 1912, in the second pre-
cinct of the second ward of the city of Battle Creek. Mich.? — A. Yes, sir,
Q. Had you any official connection with the election board there? — A. Yes.
air: inspector.
Q. Who were the inspectors at the election there that day? — A. F. L.. Chris-
tian, Mr. Wilson, and myself.
Q. Were you present when they counted up? — A. Yes, sir.
Q. Did your board make a return of the election? — ^A. Yes. sir: we did,
Q. I show you the poll book, the statement book, and the tally-sheet book
and ask you whether those are the returns? — ^A. Yes, sir.
Q. Those are the returns from that precinct, are they? — A. Yes, sir.
Q. After you made your returns to the board of county canvassers was your
board cited to appear before the board of county canvassers? — ^A. Yes^ sir.
Q. Do you remember the date on which you first came? — A. November 13.
Q. Did you come here twice? — ^A. Yes, sir.
Q. Are you able to state the dates you came before the board? — A. Yes. sir.
Q. When were they?— A. November 13 and 10. 1912.
Q. When you came before the board on the 13th. who came? — ^A. I and Mr.
Wilson, the other inspector.
Q. Did your brother come with you. the last witness on the stand? — ^A- No.
sir ; not in the first place.
Q. Did he come with you the last time? — ^A. Yes, sir.
Q. The first time, who was present? — A. The board of county canvassers.
Mr. Hart the other inspector, and myself.
Q. Your city clerk or recorder? — A. Not the first time.
Q. Did you bring the ballot box with you? — A. Yes, sir.
Q. Before the board? — A. Yes, sir.
Q. When you arrived here what did they explain to you about those re-
turns?— ^A. That we were short the straight ballota
Q. What did you do after you got here? — A. We corrected the books.
Q. Opened the ballot box, do you recollect? Who did?— A. As to that I
couldn't state.
Q. Did you bring the key with you?— A. Yes. sir.
Q. Who brought that? — A. I did.
Q. Did you have the seal with you? — A. Yes. sir.
Q. Was" the ballot box opened? — A. Yes. sir.
Q. What did you find inside?— A. The ballots and things we placed in there
the night of the election.
Q. What did you do to correct your books?— A. We referred to the marks on
the outside of the rolls of the straight ballots.
OABNET VS. SMITH. 461
Q. Were the number of straights of each party on the outside of those rolls? —
A. Yes, sir.
Q. Aud from those did you make your corrections? — ^A. Yes, sir.
Q. Is that -first certificate that I show you in red ink when you signed the
returns that day?— A. That was the first time.
Q. On the 13th day of November?— A. Yes, sir.
Q. 1912?— A. Yes, sir: it was.
Q Did you know what those numbers In red ink on the rolls that you found
in the tally books were? — A. Yes, sir.
Q. Were you called before the board of county canvassers the second time? —
A. Yes, sir; the second time.
Q. What date was that?— A. The 10th of November, I think.
Q. Who was present with your board then? — A. Fred Christian and myself,,
and also the recorder, Mr. Thome.
Q. What did you find in the ballot box that day? — A. We took out of the
ballot box a memorandum sheet.
Q. Where did you find it? — A. Down toward the bottom of the box.
Q. What was on top of it?— A. The ballots.
Q. The rolls, you mean? — A. Yes, sir; they were rolled and tied up with a
heavy cord.
Q. Did you know this memorandum when you found it — when you saw it? —
A. Yes, sir.
Q. What was it? — A. It was a piece of plain, gray paper, marked on with
a blue lead pencil that we used in the booths.
Q. From that were you able to make your corrections? — ^A. Yes, sir.
Q. Did that in any way change the numbers which you had set down from
the figures which you found on the back sides of the rolls? — A. No, sir.
Cross-examination by Mr. Adams:
Q. Who put the figures on the backs of those ballots that were rolled up that
yon say you used to make those changes in the returns the first time you were
before the board of county canvassers? — ^A. My brother, Fred Christian.
Q. AH the figures on the backs of those rolls were in the handwriting of your
brother?— A. Yes, sir.
Q. You were one of the inspectors of that election? — A. Yes, sir.
Q. You had some clerks of the election? — A. Yes, sir.
Q. And they were who?— A. Carl Gillis and Archie Clare.
Q. How many clerks did you have? — A. Two.
Q. Who was Fred I-.. Barber? — ^A. I believe he was there; yes, sir.
Q. Then you had three clerks? — A. Yes, sir.
^ 0. W^ho was Ray Roth? — A. He was enrollment clerk, I think.
* Q. They dldn^t enroll there that day? — A. We did have an extra clerk.
Q. You had two extra clerks, didn't you? — A. Yes, sir.
Q. Y'ou change your testimony, and now you say in place of two clerks yon
had four.
Mr. FBANKHAtrsEB. I object to the statement that he has changed his
testimony.
Q. In place of there being two clerks of that election board that day, as a
matter of fhct you had four, didn't you? — ^A. Yes, sir.
Q. One of those clerks was Fred L. Barber and another was R. R. Roth and
another A. B. Clare, and the fourth clerk was Carl H. Gillis?— A. Yes, sir.
Q. SoLyou had four clerks assisting that board that day? — A. Yes, sir.
Q. I supposed they clerked, didn't they? — A*. Yes, sir.
Q. They had to keep track of the tall'es that were called off there for the
different candidates, didn't thoy. when you were counting the votes? — ^A. Yes,
8ir.
Q. And were there until you got through counting the ballots? — A. Yes, sir.
Q. That day of November the 5th? — A. Yes, sir.
Q. This memorandum you are tnlklng about, that you found in the ballot box,
was that a tally sheet? — A. No, sir.
Q. It was not? — A. It was a piece of imper tliat we had to make uiemoran-
dnms on.
Q. That was also, you said, in your handwriting? — A. No, sir; my brother's.
Q. Well, he had kept a tally on that sheet that you found, had he, of the
split votes? — A. No. sir; that was the balance sheet.
Q. What was there on that balance sheet? — A. All the split votes and straight
votes to see what the total was.
462 CARNEY VS. SMITH.
Q. For every candidate on the ticket? — A. No, sir; not for every candidate —
not on that sheet — for all purposes.
Q. E'or all purposes? — A. Yes, sir.
Q. What do you mean ; the sum total on that memorandum that you took out
here before the board of county canvassers, that we have been talking about so
much, there was the sum total for all purposes? — ^A. Yes, sir.
Q. The sum total of what? — A. Of the votes cast.
Q. The sum total of the votes cast? — A. Yes, sdr.
Q. For what? Do you mean 375 votes cast? — ^A. Yes. sir.
Q. That is all there was on there? — A. Yes, sir.
Q. It did not show how many straight votes there were for John M. C.
Smith for CJongress, did it. on that sheet? — A. Not on that sheet; no, sir.
Q. I am talking about the sheet you used here before the board of count?'
•canvassers from which you made your corrections, did not have on that sheet
the total straight votes for John M. C. Smith for Representative in Congress:
did it?— A. Yes. sir.
Q. It did?— A. Yes. sir.
Q. Did it have the total straight votes for Claude S. Carney for Congress?—
A. Yes, sir.
' Q. Did it have the total straight votes for secretary of state? — A. Yes, sir.
Q. For governor? — A. Yes, sir.
Q. And electors? — A. I will not say as to that; I think It did.
Q. Did it have the number of straight votes for each elector on the different
tickets of the different parties? For each candidate on there? — A. Did it have
each candidate?
Q. I mean each elector in each party, on that sheet of pai>er? — A. I couldn't
say as to that.
Q. Did it have on there the straight votes for every candidate for governor?—
A. Yes, sir.
Q. Six candidates for governor; you had them all on? — A. Yes. sir.
Q Did you have the split votes for those six candidates for governor?— A.
Yes. sir.
Q. Did it have the straight and siilit votes for the six candidates for lieu-
tenant governor on each of the tickets? — A. I believe it had.
Q. Did it have the straight votes and the split vfttes for the six candidates for
«ec»retary of state on that sheet of imper? — A. I believe it did.
Q. Did it have the straight and split votes for the six candidates for State
treasurer? — A. I think so.
Q. Did it have on that sheet the straight and split votes for the six candidates
for auditor general? — A. I think it did.
Q. Did it have on that sheet the straight and split votes for the six candidates
for attorney general? — A. I think it did.
Q. Did it have on that same sheet the straight and split votes for the six
candidates for commissioner of the State land office? — ^A. I think so.
Q. Did it have on there the straight and split votes for the five candidates for
justi<'es of the su])reme court? — ^A. I think it did.
Q. The straights and splits for the three candidates for the short term — ^flve
<;andidates for the short term? — A. Yes, sir.
Q. Did it have the straights and splits for justices of the supreme court— the
three candidates — for the long term? — A. I believe so.
Q. Did it have the straight and split votes for the five candidates for Repre-
sentative in Congress at large? — A. I believe so.
Q. Did it have the straight and split votes for the four candidates for Repre-
sentative in Congress? — A. Yes, sir.
Q. Did that memorandum you took out of that box and used for making the
change in the figures have the straight and split votes for the four candidates
for State senator?— A. I think it did.
Q. Did that memorandum have on it the straight and split votes for the four
candidates for representative in the State legislature? — A. I think so.
Q. Now, there were three candidates for judge of probate, four for sheriff,
four for county clerk, four for county treasurer, four for register of deeds, three
for prosecuting attorney, eight for circuit court commissioners, eight for cor-
oner, four for county surveyor, four for drain commissioner — ^now, then, as to
those men. I ask you whether that memorandum that you took out of that
ballot box also had on it the straight and split votes for all those different
candidates for the different county otflces? — ^A. Had the totals.
Q. It did have the straights and splits? — ^A. The total votes.
CABNEY VS. SMITH. 468
Q. The total straights and total splits?— A. Yes, sir.
Q. It had In separate Items the total straights and total splits for each candi-
date?—A. Yes, sir.
Q. I mean each candidate — the candidates on these various county tickets? —
A. Ejich party, I believe.
Q. Each candidate on all the tickets — ^that would take in all the parties be-
sides the straights and splits that had been cast at the precelnct that day?— ^A.
We didn't have the names on that sheet.
Q. You didn't have the names? — A. Not on that sheet.
Q. Didn't you have the names for Representative for Congress on that
sheet?— A. Not on that sheet.
Q. That was on a separate sheet? — A. Yes, sir.
Q. You only had one sheet here before the board of county canvassers? —
A. Yes. sir.
Q. Did it have the names on that sheet you used? — ^A. No, sir.
Q. You used that sheet that did not have the name of a single candidate on to
correct your returns, did you? — A. Yes, sir; the total Democratic and total
Republican.
Q. You were a Republican November 5, 1912? — A. I couldn't say that I was.
Q. You were acting on this board ; were you not put on there as a Republican
inspector? — ^A. I might have been. I am not saying I am a Republican.
Q. I am not asking you what 3^ou are now: we are talking about November
5. 1912. You were put on there as a Republican inspector of that board of
election? — A. I may have been; I never knew I was put on there as a Repub-
lican.
Q. You were u Republican, were you not, at that time — that election day? —
A. No, sir; I couldn't say as to that.
Q. Were you enrolled as a Republican? — ^A. I am not.
Q. Were you enrolled as a Republican for that election — November 5, 1912? —
A. I don't believe I am ; in fact, I know I am not.
Q. What were you enrolled as on November 5, 1912? — A. I am not enrolled
with any party.
Q. Not enrolled at all?— A. No, sir.
Q. Did you vote at that election? — A. I was registered and voted.
Q. Those figures you used there from this memorandum, when you were
before the board of county canvassers the second time for the purpose of
iitteiupting to change your election returns, were figures your brother had
made?— A, Yes, sir.
Q. You didn't make them? — A. No, sir.
Q. You don't have any personal knowledge whether they are correct or not? —
A. I do.
Q. You know they are figures? — A. Y'es. sir; I didn't make them; no, sir;
but I know they are right, and know what they are.
Q. You know what they are? — A. Yes, sir.
Q. Do you know what they are now? — A. Yes, sir.
Q. You can tell us what they are now, right down the line. — A. Not from
memory; no, sir.
Q. What did you do there that election day In counting? — A. I counted all
the ballots or recounted them.
Q. You counted all the ballots or recounted them? — ^A. Yes. sir.
Q. Who read off the ballots? — A. I couldn't say as to that.
Q. Did you read any off? — A. I did.
Q. Did your brother read any off? — A. Yes, sir.
Q. Did the other insi)ector read any off?— A. I believe he did.
Q. How manv of them did vou read off — one-half? — A. I couldn't say as to
that.
Q. Your brother read half or better? — A. I am not saying as to that.
Q. How many of them would you say the other inspector, Mr. Wilson, read? —
A. I don't know as to that.
Q. Did he read half ?— A. I don't believe he did.
Q. One-third?— A. I will not say.
Q. Did he read a third? — A. I am not sajing.
Q. Can you say? — A. No, sir.
Q. You don't know? — A. No. sir; I don't know.
Q. Approximately, would you say he i-ead a third? — A. I would not say.
Q. You can't give us any information how many you read? — A. No, sir.
Q. You sorted out the straights?— A. Yes, sir.
464 CAHNEY VS. SMITH.
Q. From the splits? — A. Yes. sir: .nil parties.
Q. Well, did yon go over every ballot on which there was a split? — A. Yes»
sir; I either eonnte<i it or reoonnte<l it.
Q. What do you mean that you either counted or recounted? I don*t under-
stand what you mean.— A. If they were counted first by one of the Inspectors
I recounted to sec whether it was correct, and the clerk checked.
Q. What did the clerk check over? How did he make his checking?— A. On
a piece of paper we had.
Q. Didn't the clerk keep his checks on the tally-sheet book furnished by the
county clerk? — ^A. No. sir.
Q. Don't you know the tallies were entered as they were called off the
ballots? — A. No. sir; not as called off the ballots.
Q. When they were read off the ballots when you were counting the splits
didn't the clerk who was keeping the talley-sheet book put down a stroke on
that book every time a name was called off? — ^A. No, sir.
Q. They didn't do that?— A. No. sir.
Q. I suppose In keeping thene tallies when a ballot was read off there would
be a stroke put down for each candidate who got a vote? — A. On a 'sheet of
paper we had.
Q. You had on that sheet of paper each candidate's name? — ^A. Yes, sir.
Q. Then put a stroke opi>08lte his name? — ^A. Yes, sir.
Q. Then you would read them over again? — ^A. Yes, sir.
Q. How could the clerk tell each of those different candidates on there if
he simply put down a stroke opposite a candidate's name and another beside
that; when you went back to read over, how could he tell where he had that
stroke, can you tell me? — A. He had It drawn off In spaces.
Q. He put five in a space? — A. Yes, sir.
Q. You didn't have any paper spaced for keeping this temporary memoran-
dum on, did you?^ — A. Yes, sir.
Q. That was spaced pai)er? — A. Yes, sir; we spaced It, I and my brother.
Q. How big spaces did you make? — ^A. I will not say for that. .
Q. Just describe It to me — show me — mark It on a piece of paper, will you?—
A. Maybe Inch spaces.
Q. Mark the size of the space you and your brother ruled off. — ^A. Plenty
large enough.
Q. What was? — A. The spaces.
Q. I suppose so ; that might be a foot or an Inch. Mark the size of the spaces
you made on that paper. — A. About like that [Indicating].
Q. I suppose Included between those four lines was al>out the size spaces you
had? — A. Yes, sir; similar.
Q. For five votes?— A. Yes. sir.
Q. On that temporary paper? — ^A. Yes, sir.
Q. How big a sheet of pai)er did you have to keep this on? — A. Why. maybe
3 by 4 feet; somewhere In that neighborhood.
Q. Pasted together or was it one sheet? — ^A. One piece of manila paper.
Q. You kept five strokes In a space that was that wide? — ^A. Verj- nearly.
Q. I show you this exhibit on which you made this square that you say you
had on that sheet; those squares you made on that sheet you put 5 tally marks
In?— A. Yes, sir.
Q. No more than 5? — A. No, sir.
Q. When they started to read off one for John M. C. Smith you went down
that tally sheet 40 or 50 names? — ^A. Yes, sir.
Q. That had to be called off?— A. Yes, sir,
Q. So that in copying that you would mark a tally in the square of that sixe
opposite the name of John M. C. Smith? — A. Yes, sir.
Q. Then, If the governor got a vote on that same ballot you would put It in
the square opiwsite his name? — A. Yes, sir.
Q. Until yon got tlown toward 40 or 50 candidates voted for on that ticket?—
J\m J. 6o, nl r.
Q. Then you would read it over and the clerk would check back from there?—
A. Yes, sir.
Q. Can you tell me how that clerk could possibly i*emember how many
strokes he had in the square opposite each man's name" so he could tell whether
the tallies he put down that were called off the first time were correct with the
call you made? Can yon explain that to me how that would be iHJSsible?—
A. Recounting them ; simply when they recounted those — check down and see.
CABNEY VS. SMITH. 465
Q. You don't know whether he was checking the tally that was called first
or a tally read from aouie other ballot, do you? How could you tell? Can
you tell me how it could be done? There were about a hundred names on the
ticket, were there not? — ^A. I don't know exactly.
Q. Say 96 you had on that ticket, on that big sheet of pai)er were the names
of the men who were voted for that day? — A. Yes, sir.
Q. If there were IHO you had 150 names on that sheet of paper? — A. Yes. sir.
Q. You had a lot of those spac^es opiwsite each man*s name of the size of
those exhibited here, had you? — A. Yes, sir.
Q. In every space opposite his name you only put five tallies? — A. Yes, sir.
Q. Five strokes? — A. Yes, sir.
Q. You started down with the tally calling off the first man's name who got
a vote, and suppose there were 50 men voted for on that ballot, or 40 we will
say, you w^ould have to make 40 strokes somewhere on that sheet of paper? —
A. Yes, sir.
Q. You would lait a stroke opjwsite the governor, put one stroke opposite
that particular governor's name? — A. Yes, sir.
Q. So that down through that ticket until you counted for every vote on
that ticket? — A, Yes, sir.
Q. You sjiy the bullot wjis read? — ^^V. Yes, sir.
Q. The clerk would check back from those ballots, I suppose, to see whether
ii was correct? — A. Yes. sir.
Q. Will you toll me how he could tell whether it was correct? — A. Yes. sir.
Q. How he would know which stroke to i)ut down the one first read off to
him in 40 or 50 different siiaces on that ballot? — A. He marked it.
Q. How? — A. With a pencil mark.
Q. Simply put a stroke down? — A. Yes, sir; a count.
Q. Did he mark that stroke in any way? — ^A. Just a dot.
Q. To show it was dottetl? — A. Yes, sir,
Q. You came back here and you read one off for governor and he put a dot
to that one vote for governor, how could he tell whether the last one was the
one called oflF that particular ballot or not? — A. Because it was not dotted,
was not marked.
Q. Did he dot it when you read it ofiC? — ^A. When I reread or when he re-
read it or one or the other reread It.
Q. He was not doing the rereading? — A. One of the inspectors was.
Q. Where is that big sheet? — A. I destroyed it.
Q. I thought you siK)ke of those papers you used there that day at that
election that they were in this ballot box: didn't you put that in the ballot
box? — A. No. sir.
Q. Did you tear it up? — ^A. I burned it up.
Q. That night?— A. Yes, sir.
Q. That was the only original count you had there that day, was it not? —
A. Of each individual.
Q, And that you destroyed? — ^A. Yes, sir.
FRKD L. CHUISTIAN. being recalled, testified further, on behalf of the
c-ontestee, as follows:
Examineil by Mr. Maynard :
Q. Where did you prepare that sheet that day last spoken of by you? — ^A.
Well. I have forgotten that.
Q. P^x plain, if you will, how that tally was kept. — ^A. On the left-hand side
of the sheet I drew a line allowing a space for each candidate's name; then I
drew from that a space, a horizontal space with a faint line running along the
center subdividing: then left a space about three-fourths of an inch long for the
marks. When I called John M. C. Smith's name for one vote he would put it
down and call a mark for John M. C. Smith, and one for Claude S. Carney,
call one vote for (^.laude S. Carney above the faint line, and when they were
rwhecked or reread I rend to him; he i)ut his marks below the faint line
.^aimilar to that [indicating].
Q. The tally sheet kept in the two places identically checked? — A. Yes, sir.
Q. They had to che<'k up before they were gone over by the clerks when re-
read and the tallies were placed below the fine lines?— A. Yes, sir.
Q. When read in the first place the tallies were placed above? — A. Yes, sir.
Q. So the tallies were read twice? — A. Yes, sir; gone over twice.
286—13 30
466 CARXEV vs. SMITH.
Q. When the electimi was finally C(»nii)lete(l and the <^ount made was there a
pnbllc declaration made? — A. No, sir.
Q. At that plnce?— A. Xo, sir.
Q. Did you nnike any public announcement V — A. No. sir.
Q. Of the result of tlie election?— A. No, sir; I was very much surprised
when I was notified something was wrong.
Q. You didn't malce it then?— A. No, sir.
Q. When this count was made here on this long imper how did the clerics find
out what one they put in these books?— A. As the total was set down after each
candidate's name a line of that count was marked, then called back from these
sheets; was c;iiied b:.ck to the clerks in some manner and then a mark set
down at the time.
Q. Tlien the j.nnouncrmcnt of the result was from the clerks? — A. Yes. sir.
Q. Of that election? -A. Yes. sir.
Q. They made that; you heard it?--A. The. different clerks or different—one
fif the insi)ectors vend it to the clerk.
Q. Then the result of this ele<'ti(m was read to your clerks, and you sup-
posed was coi»ied in the Ixx^ks, did you. into these books, into these' election
returns'^ — A, 1 supiK)setl it was; yes, sir.
Q. That is where the mistake was nmde?— A. Yes, sir; this sheet was for the
split votes, and the straight votes were all sorted and insi)ected by two or
three of the men and rolled up so they would not be in our way; having so
many ballots wjis why we did that. Then one of the clerks put this down on
his liook. and they did not disturb the rolls of straight ballots.
Q. Now. that memorandum that you used when you came before the l)oard
of county canvassers, when did you make that? — A. The night of tlie election.
Q. When did you put it in the ballot box?— A. When I put all the other
papers in and ret^ords,
Q. When?— A. The night of the election.
Q. l)ld you see it again before you took It out hefore the board of count}'
canvassers? — A. No, sir.
Q. Is that the one >ou put in the box on the night of the election?— A. That
is the same one 1 use<l to make the corrections.
Cross-examination by Mr. Adams :
Q. Did you read off to the clerks there that night, say, the split votes?—
A. Yes, sir; the split votes.
Q. The straight votes were not read off to the clerks? — A. The straight vot««
were there before them.
Q. You counted those over when you first took the ballots out and sorted
them? — A. Yes, sir.
Q. Then you marked on ihe back of them and laid them down, laid them
aside, didn't you, and went on counting the splits, and when yon got through
with the splits and with that big sheet, 10 feet or such a matter across it, these
big sijaces, three-fourths of an inch, or whatever the size was, you called back
to tlie clerks the number of votes, split votes, which each fellow had? —
A, x es, sir.
Q. They didn't put down the straight votes at all for the candidateB?—
A No si r
Q, Why didn't you call those off?— A. We
Q. (Interrupting.) You forgot to do that, didn't you? — A. I couldn't swear;
I don't know why they didn't put them down.
Q. If you had called them there they were there to put down, but they didn't
put down a single one of those straight votes? — A. No. sir.
Q. When you got all through you didn't call off the number of votes that each
candidate got*:* — A. Yes, sir.
Q. How did you do it ; you didn't have them on there to call off? — A. I didn't
call them from there.
Q. Y'ou didn't call them at all? — A. It was not necessary to put down
Q. (InteriUpting.) I dim't want to argue this with you. You didn't call off
the total votes that every candidate got, did you? — ^A. No, sir.
Q. Or the total vote that any candidate got? — ^A. We did of the electors.
Q. Those are the only ones. The electors were the only ones you called off
the number of votes they got when you got through with that count?— A. I
don't think those were the only ones we called off.
Q. You didn't call off any others at that time, the total votes they got, splits
and straights? — ^A. I wouldn't say I did.
CARNEY VS. SMITH. 467
Q. You told the judge you didn't know. Did you mean it or didn't you? — A. I
meiint what I said.
Q. You meant what you said then? — ^A. Yes, sir.
Mr. Maynard. We will consent that the ballot box be opened up to see
whether this imper is there and for a count of the ballots.
Mr. Adams. It has been oiiened by the Janitor in the city hall at Battle Creek.
If you hadn't oi)ened up the box. if it had been kept inviolate, we would have
10 objection to it.
W. R. NO YES, being first duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Frank havser:
Q. Mr. Noyes. you are city clerk of the city of Albion, Mich.? — A. Yes, sir.
Q. Albion is in the county of Calhoun? — A. Yes, sir.
Q. Under what law is it oi)erating, what charter? — A. The regular fourth-class
charter.
Q. That is, as you understand, it is a city of the fourth class? — A. Yes, sir.
Mr. Frankhauser. I will read this into the record :
"The supervisor and two aldermen of each ward when eligible, and onJe
elector of the ward to be apiK)inted by the .ctmncll, shall, except as in this act
otherwl.**e provided, constitute the board of insi)ectors of election. If by the
reason of the formation of new wards or by a change in the boundaries of
existing wards or the creation of more than one election district therein, or for
any reason there shall not be a sufllcient number of the oflicers last named in any
ward or district to make a board of four inspectors for each election district,
it shall be the duty of the a)uncil at least one week before the election to
appoint a sufficient number of insi)ectors, who, with the otficers above named,
if any. residing in the ward or election district shall constitute a board of four
inspectors for the ward or district, and if at any election any of the Inspectors
above provided for shall not be present, or remain in attendance, the electors
present may choose, viva voce, such number of electors as, with the inspector
or ins])ectors present, shall constitute a board of four in number, and such
electors so chosen shall be insi)ectors at that election during the continuance
thereof. Kach injH>ec*tor of the election shall receive $2 per day as compensa-
tion."
Mr. Maynard. That is all in the record once before.
S. W. CULVER, being first duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Frankhauser:
Q. Mr. Culver, you reside in the city of Albion? — A. YVs, sir.
Q. You are supervisor of the first ward? — A. Yes. sir; I am.
(}. And was on the 5th day of November last? — A. Yes, sir.
Q. And as such acted as one of the insj)ectors of election on that day? — A.
Yes. sir.
Q. As supervisor you were chairman of the board? — A. Yes. sir.
Q. You acted as chairman that day? — A. I did.
Q. You took the ballots and deposited them in the ballot box? — A. Yes, sir.
Q. Now, during the continuance of that election, were there any voters who
asked for assistance in marking their ballots? — A. There always has been.
Q. About how many? — A. I couldn't say exactly, but I remember of two.
Q. Did they receive assistance? — A. They did.
Q. Now. briefly, what was it? — A. John Dewar was the first one. He said
that he was unable to mark his ballot; he didn't have his glasses and could not
see to read the names.
Q, What was done with him? — A. A Democrat and Republican inspector, one
of the Justices of the peace went in and saw that his ballot was marked as he
wished.
Q. Do you know whether they marked it? — A. I couldn't say ; I was not there.
Q. He asked for assistance to mark his ballot? — A. Yes, sir.
Q. Was he swoni l>efore receiving such assistance? — A. He was not.
Q. The next man; what was his name? — A. Mr. Willoughby; there may have
been some one between; I don't remember.
Q. But those two you remember? — A. Yes, sir.
468 CARNEY VS. SMITH.
Q. What waR his trouble? — ^A. He didn't know whether he wanted to vote for
"Teddy" or Roosevelt; that is what he said.
Q. What assistance did he asli for? — A. He asl^ed to have somebody tell
him where they were.
Q. Do you know whether his ballot was marked or not?— A. Well, not per-
sonally: I was not present.
Q. But he asked for assistance to mark his ballot? — ^A. Yes, sir.
Q. Was he sworn as to his Inability?— A. No, sir.
Q. Was there any oath administered to him or to the other voter or to auy
other voters there that day: was there any oath administered to them before
assistance was rendered? — A. No, sir; I didn't hear any.
Q. Was there any oath administered fo any voter that they eonld not read
the English language, or that because of physical disability he could not mark
his ballot?— A. No, sir; I didn't hear it, anyway.
Q. Now I suppose when the polls closed at 5 o*clock you began at once to
canvass the votes? — ^A. Yes, sir.
Q. And continued how long? — A. Until we were through.
Q. About what time did you get through?— A. About 10.30.
Q. On the ni^ht of the 5th?— A. Yes, sir; I am not positive what time, but
about 10.30, I think.
Q. When you quit counting what did you do?— A. Put the ballots and the
poll book and s'atenient book and everything that pertained to the elet'tion.
except the registration book, In the ballot box, and it was locked and seale<l.
Q. What did you do with the books that were returned? — A. They were put
in the ballot box.
Q. Where was the ballot box sent to? — A. To the council chambers.
Q. Then what did you do after that; you went home? — A. We adjourned and
went home.
Q. When did you reassemble? — A. The next morning.
Mr. Adams. I object to any testimony from this witness further, except as
bearing niton the question of whether any oath was administered to any voters,
or any assistance given to any voters in this ward in the city of Albion on this
election day. for the reason that there is no allegation whatever in the answer
of the contestee claiming any such a state of facts, and as incompetent, irrele-
vant, and immaterial, and not adml.ssible under the pleadings; and I move to
strike out what the witness has testified about what they did, as far as count-
ing the votes is concerned, or what they did that evening in that regard, or the
next morning, or any other time.
Mr. Maynard. We wish to give notice that our answer will be considered to
be amended so as to cover any irregularities we may find in these precinct**, as
to why the vote should not be coimted for the contestant, and we give that
notice now. The other side was permitted to amend their notice of contest to
cover this class of testimony not covered by it. and we shall apply for i^ermis-
sion to make such amendments as will admit this class of testimony and testi-
mony of a like nature. They Introduced testinwny which the notice of contest
in no way warranted.
Mr. Adams. I want to have my motion to strike out wha^ he has already
testified to. and object for the same reason to any testimony being given from
now on on any of these points as far as Albion or any precinct in Albion is con-
cerned.
Q. Where did you meet? — A. At the council chamber.
Q. I am speaking of the board of inspectors. — A. At the council chamber.
Q. What did you do — about what time did you meet the next morning?— A.
About 9 o'clock.
Q. On the 6th day of November?— A. Well, the next day after election.
Q. I show you a book, and ask you if that is one of the returns of that elec-
tion in the first ward of the city of Albion of that election held November 5,
1912?— A. Yes, sir.
Q. Turn to the page where the signatures of the inspectors appear.— A. Yes»
sir,
Q. Witness, I show you Exhibit 62: are the signatures on the certificate
on the last piige the signatures of your board? — A. Yes, sir; they are.
Q. I wish you would read the certificate on the last i>age of ICxhibit 62 into
the record. — ^A. (Reading:) "State of Michigan, county of Calhoun, ss
Mr. Adams. I object to thnt l)eing read into the record because it is not
covered by the answer.
OABNEY VS. SMITH. 469
Mr. Fbankhauskb. It is understood that you have that objet-tiou and that
that objection may apply to all this Hue of tewtimouy as lucomi)eteut. Iri-elevant,
and immaterial and not covered by the answer.
A. (Continuing reading:) *• We do hereby certify that the foregoing is a cor-
rect statement of tlie votes cast in the first ward of the city of Albion, county of
Calhoun. State of Michigan, at the general election held on Tuesday, the 5th day
of November, A. D. 1912.
"In witness whereof we have hereunto set our hands at the city of Albion,
said county and State, this 5th day of November, A. D. 1012.
" S. W. Culver.
"H, D. Keck.
"F. L. Smith.
" Geoboe R. Cabver."
Q. As a matter of fact, then, that certificate was signed on November 6? —
A. No, sir.
Q. When was it signed? — A. The night of election.
Q. What did you do the next morning when you met to make out the re-
turns?— A. They were signed the night of the election.
Q. In other words, the names were signed on the last page of that book be-
fore any of the returns had been written luto the book? — A. Yes, sir; they were
signed that night.
Q. This return of the statement of the votes, both those in figures and in
words, were written in after the certificate w^as signed? — A. I think they were;
that is. they were partly filled out the night before but they were not completed.
Q. They were written in on the 6th, the words and figures opposite the unmes
of the several candidates for office? — A. Yes, sir; the next day after the elec-
tion, whatever day that was.
Mr. Fbankhauseb. Exhibit 62 shows John M. C. Smith 111, and Claude S.
Carney 138.
Q. That is correct; I read that correctly? — A. Yes, sir.
Q. Mr. Carney had a plurality of 27 in the first ward of the city of Albion? —
A. Yes, sir.
Q. I call your attention to pages 7, 8, 9, and 10; Instead of writing In the
names of the candidates, how did you place the names in there? — A. They were
pasted in.
Q. Where did you get those pnsters of those names? — A. From the .instruc-
tion ballots.
Q. Turn to page 12; what changes have been made, if any, by the board of
county canvassers in the total votes for candidates appearing on that page? —
A. I can't tell you whether any changes were made by them or not.
Q, I call your attention to the vote for drain conmiissioner. — A. I don't know
whether tliey changed that or not ; I couldn't swear.
Q. What are the two totals? — A. One says 571 and the other says 422.
Q. The next officer above says what? — A. Four hundred and twenty -three.
Q. Now, can you tell whether that was originally something else? — A. It
might have been 523 for nil I know.
Q. And a four marked over It? — A. It looks like that; I didn't write that
book,
Q. That is not your handwriting? — A. No, sir.
Q. Aft a matter of fact you signed Exhibit 62, the st^itement book, on the
5th day of November? — A. I think we did ; yes, sir.
Q. Ajid the figures, both in words and in figures of the number of votes for
the various candidates received was placed in there after you met the next
morning at the council room, about 9 o'clock of November 6? — ^A. Yes, sir.
Q. I show you Exhibit 63, the poll book of the first ward of the city of
Albion, Calhoun County, of the November election. 1912; look that over and
see whether that is one of the books ^ou kept as a board. — A. It is; yes, sir.
Mr. Fbankhauseh. I will state that no officer's name appears under the oath
of Inspectors of election and the name of no officer appears as having sworn,
having sworn them, I mean the name, nothing under the oath of clerks of
election, and the same situation appears in regard to Mr. Weed and Mr. Smith,
clerks, that no ofReer'B name appears as having sworn the clerks. Page 3, of
Exhibit 66, the poll book, reads: "State of Michigan, county of Calhoun, s&
I do solemnly swear that I will support the Constitution of the United States
and the constitution of this State, and that I will faithfully discharge the duties
470 CARNEY VS. SMITH.
of the office of clerk of this election held on Tuesday, the 5th day of November,
A. D. 1912, In the first ward of the city of Albion in said county."
(No signatures and no signature of any officer swearing him.)
Q. How many clerks of election did you have there that day? — ^A. Two clerks.
Q. That just read on the record where there appears no signature who. if
anybody, should have signed that affidavit? — ^A. W. R. Noyes. city clerk, swore
me.
Q. Who should have signed the one just read into the record not showing
any signature to the oath? — ^A. That was some one we needed.
Q. Who do you say swore those gentlemen? — A. The city clerk.
Q. Mr. Noyes? — ^A. Yes, sir. His jurat is on the other book that came to the
county clerk, I think you will find it.
Q. You don't know of any other book that you returned to the county clerk,
except Exhibit 63 showing whether the officers were s^'om, this is the one
returned? — A. I think it is; one was returned was all.
Q. Now, I wish to read from page 14 the oath of certificate of inspectors, none
of you signed that? — A. No, sir.
Mr. Fbankhauseb (reading) :
"Whole number of votes cast according to the poll list is; whole number of
ballots counted upon opening the ballot box was; whole numt>er of ballots in
excess of the number of voters voting and destroyed was; State of Michigan,
county of Calhoun, ss: We do hereby certify that the foregoing ix)ll list has
been carefully compared by us with the duplicate poll list as required by law,
and that all mistakes found in such poll lists have been duly corrected by us,
and that both of said poll lists are now correct and agree with each other.
" In witness whereof we have hereunto set our hands at the city of Albion,
said county and State, this 5th day of November, A. D. 1912."
(No signatures opposite on the lines where the signatures should be.)
" Inspectors of the general election held on Tuesday, the 5th day of Novem-
ber, A. D. 1912."
Q. Exhibit 64 is the statement book you gentlemen made out there, that is
the book you made out that day or the next day ? — A. In the first ward ; yes, sir.
Q. I call your attention to the statement book; in that book I show you in-
stead of writing in the names of the candidates, beginning with that of Con-
gressman on page 7, how did you place the names in that statement book?— A.
They were cut out of the Instruction ballots and pasted In.
Q. What is called riders? — ^A. Yes, sir; they would be called that in the in-
surance business.
Q. I call your attention to pages 10. 11, and 12, and ask you to look at the
footings; what appears there? — A. Figures.
Q. I know, but are there any changes appearing there? — ^A. It looks like
there might have been a scratching on page 9, and 1 think there has been a
correction on 10.
Q. In the footing? — ^A. Yes, sir.
Q. Is that correction you see on page 10? — A. I think so; I think there are
two.
Q. I call your attention to page 12. What correction was made in the office
of county surveyor in the total? — A. It says 423. and one says 523.
Q. Do you know why that change was made? — A. I do not.
Q. Do you know whether the board of county canvassers or you gentlemen?—
A. No, sir.
Q. In the office of drain commissioner what changes are there? — A. It says
422. and one place 571.
Q. You can't tell whether those were made by your board or by the board of
county canvassers? — A. I don't know.
Q. I call your attention to the certificate on the last page of the statement
book, Exhibit 64; that also is dated November 5, 1912, iMi*t it?— A. Yes, sir.
Q. Was that also signed before you had the figures placed In afterwards? —
A. I think so; yes, sir.
Q. I call your attention to Exhibit 65 and ask you whether that is the tally-
sheet book you made out that day? — A. I think it is; it looks like It.
Q. When was that made out? — A. On election day.
Q. How was it kept? First I will ask you whether it is not tme that the
tally-sheet book was kept with a lead pencil? — ^A. Yes, sir.
Q. Both as to straight and split votes? — A, Yes, sir.
Q. And the tallies were also kept with a lead pencil? — A. Yes, sir. f
OABNEY VS. SMITH. 471
Q. I call you attention to the footing on Congressman for the third district;
first the names of the various candidates were written in with a pen? — ^A. No,
sir.
Q. Don't you see they are written in there? — ^A. Yes, sir; some of them.
Q. Each one is written in? — A. Only a few of them are written in.
Q. John M. C. Smith?— A. Yes, sir; and Claude S. Carney and Edward N.
Dingley are written in.
Q. Afterwards they did what? — A. Afterwards they cut out the names from
tbe instruction ballots and pasted them in.
Q. Read there the vote received by John M. C. Smith, straights and splits. —
A. John M. r. Smith, straight votes, 59; split votes, 52.
Q. That made a total of what? — A. One hundred and eleven.
Q. Claude S. Carney's vote?— A. Straight votes, 101; split votes, 37.
Q. Making a total ?— A. Of 138.
Q. They asked you whether there were any tallies on tliat book to show
where the split votes were tallied. Do you find 37 tallies after Claude S. Car-
ney's name? — A. Yes. sir; under this system I find them.
Q. If you have a plus and minus system he will object to it. I will ask you
this and you can explain it. As a matter of fact, there are not 37 tallies on this
book showing that Claude S. Carney received 37 split votes; that is right, isn't
It?— A. No tally marks.
Q. How many tallies are there for John M. C. Smitli on split votes on that
book? — ^A. They would not tally up with this.
Q. 1)0 you want to exjilain that system there that you U8e<l, if you know;
what is there to show that? Where does Claude S. Carney's 37 split votes show
on "that i)age. that is the point; we are not discussing your honesty or anything
of that kind. — A. I didn't keep this book ; I read the ballots.
Q. I say, whei-e is there anything to show that he got 37 split votes? — A.
There are 41 split Democratic votes. You will see at the top of this page
"add" and "deduct." Instead of going through the ballot and having to take
the ballot and retid, for instance, you start in and you have to go from one
comer of the ballot to the other; we don't do that; we take it off and we say
"A split Democratic vote for John M. C. Smith," and we would credit John
M. C. Smith with one. and right over on the other side of this mark we add
and on this side we deduct — deduct one from Claude S. Carney for a Repub-
lican split that voted for Claude S. Carney, and we would cre<lit Claude S.
Carney w*ith one vote and detluct one from John M. C. Smith.
Q. The one point I am trying to show is that there were not 52 tallies on
tWs tally book — that John M. C. Smith got that many marks. — A. There are 526
on there for him.
Q. There are not that many pencil marks? — A. Thirty-two split votes there —
42. 52, 54 — two Republicans that voted for Claude S. Carney.
Q. How many tallies does that show for John M. C. Smith? — A. Split votes 52.
Q. How many tallies? — A. Ccmnting the splits, five, which came undoubtedly
from the tigures 22.
Q. Two others on the right side of the line? — A. Yes, sir; deducted.
Q. There are 24 nuirks there on the book, split votes, for John M. C. Smith? —
A. Those are the split votes.
Q. Whj»t I am getting at. there Is nothing on this l)ook showing where you
got the 32 splits from; there is- nothing^ to show where you got them from on
that book.— A. These 32 split votes?
Q. The l)ook dt)esirt show where you got them from, does it ; that book, that
tally-sheet book? — A. It shows there were 32 split votes.
Q. There are not 32 tallies there? — A. There are not that many marks;
no, sir.
Q. In other words, unless somebody understood the system by which you
counted, they would be unable to take the tally-sheet book and determine how
many split votes either Claude S. Carney or John M. C. Smith got from the
tally sheet book; you couldn't tell unless you knew your system? — A. It is there
In plain figures.
Q. Some man who didn't know how you counted could not tell by that how
many split votes John M. C. Smith had? — A. This system is used in a great
many places.
Q. He could not tell where that 32 came from if there were not 32 talliea
Siipi)ose yoQ were on the board and you saw 32 votes there and nothing to
show where those 32 votes came from, there is nothing in the tally-sheet book
to show it. — A. There are no marks to show it
472 CABNBY VS. SMITH.
Q. He woiihl have to tnke your word that there were 32 split votes outside
of what is tallieci here?— A. Yes, sir.
Q. The same way with Claude S. Carney's vote. There is nothing on this
book to show that Claude S. Carney had 137 split votes; no tallies 'by which
It could be worked out? — A. I understand what you mean. There is the Demo-
cratic splits and the Republican si)lits, and there is the Progressive siJlits and
the Socialists; they don't split very often.
Q. These 41 splits that Claude S. Carney got — there is nothing on the tally
sheet book to show? — A. There is 41 right there; he got four Republican votes
and lost tliat many Democratic votes.
Q. There is nothing on the book to show where the 41 came from. Is there?
it isn't even marked "votes"; it is not in the column marked "votes" there,
straights or splits. — A. In this btM)k there is no place.
Q. There is nothing to show under this system on the tally-sheet book where
those 41 split votes for Claude 8. Carney came from, is there? — A. From the
Democratic Party.
Q. There are no t*illies to show^ where they came from? — \. There is 41
marked out.
Q. You don't understand my (juestion. It isn't even marketl "split" or
"straight"; without that explanation nolxKly could figure out what that num-
ber applies to. — It says "vote" above that.
Q. Is there an^'thing connected with that? — A. It dors not show these are 41
and 32.
Q. That 41 is not designated as anything except tliat is announced in the
totsil count that there was 41 split votes? — ^A. Yes, sir.
Q. The i)olnt I want to make is this: This tally-sheet book does not show
the tallies — separate tallies — that make up that 41? — A. It does if you under-
stand the system.
Q. The tally-sheet book does not show the separate tallies that make up
that 41? — A. It does to me.
Q. Do you claim there are 41 tallies there? — A. There is not 41 tally marks.
Q. I say tliei*e is nothing on the book to show where the 41 tallies came from,
on the tally-sheet book? — A. Split votea that is all.
Q. Can't you answer that? Is that the only way you want to answer? — ^A. It
does not say votes on there.
Q. Is that the only way you want to answer that? — A. It does not specify
votes.
Q. Are there 41 tallies there? — ^A. No, sir; not tally marks. There are not 41
tally marks.
Q. I call your attention now to the statement book of the first ward of the
city of Albion. Just turn to the commissioner of the land office In words and
figures, Augustus C. Carton. — A. Ninety-seven in writing and 94 in figures.
Q. Justices of the supreme court, turn to that ; Joseph B. Steere. — A. Ninety-
seven in writing and 93 in figures.
Q. Attorney general, Grant Fellows, how many did he get? — A. Ninety-seven
in writing and 94 in figures.
Q. Representative in Congress at large, turn- back to that. Patrick H.
Kelley, how many votes are in writing? — A. One hundred and eleven.
Q. Patrick H. Kelley?— A. Ninety-seven in writing.
Q. IIow many in figures? — A. Ninety-four.
Q. Take the county treasurer. — A, Ninety-seven, George S. Barnes, and 94
In figures.
Q. Pro8ecuting attorney?— A. One hundred and eight in writing and 108 hi
figures.
Q. Has there been any change there, apparently? — A, Not that I know of.
Q. Does it look as though there had been?-^A. That is something I don't
know anything about.
Cross-examination by Mr. Adams :
Q. In this Exhibit 04. referring to the attorney generaTs vote and the com-
missioner of the State land oflfice and Justices of the supreme court, and where
they voted for Grant Fellows, is written in "ninety-seven," In figures "94,"
and Augustus C. Carton, commissioner of the land office, it is written in
** ninety-seven " and in figures " 94," and J. B. Steere. justice of the 8upr«ne
court, it is written in, opposite his name, "ninety-seven" and In figures "93."
Do you know how that happened? — ^A. I don't know; I was not there when
CARNEY VS. SMITH. 473
they were written in. I know I corrected the rest of the tally sheets so they
were absolutely correct. I know nothing about that at all.
Q. I caU your attention to Exhibit 64 again and refer to page 7 of that
exhibit under the heading *' Office of Representative in Congress." Opi)08ite
the name John M. C. Smith there are written in letters "one hundred and
eleven " and opposite the name John M. C. Smith there are in figures " 111."
Is that correct, as shown by the book? — ^A. Yes, sir.
Q. There has been no change in either the writing or figures opposite his
name? — ^A. No, sir.
Q. I notice the name Claude S. Carney, written in letters " one hundred and
thirty-eight " and In figures opposite his name " 138." Is that correct? — A. Yes,
sir; that is absolutely correct.
Q. There is nothing to indicate any change In either the writing or figures
there, is there? — ^A. No, sir.
Q. I call your attention to Exhibit 62, the statement book. I notice opposite
the name John M. C. Smith, on page 7. for the office of Representative in Con-
gress, written in in letters is *' one hundred and eleven " and in figures opposite
his name " 111." Is that correct?— A. Yes, sir.
Q. Is there anything to indicate that there htis been a change in either of
those opposite the name John M. C. Smith? — ^A. No, sir.
Q. Opposite the name Claude S. Carney, written in letters, Is " one hundred
and thirty-eight" and in figures "138"; is there anything to indicate thei-e
any change in either the written letters or figures? — ^A. No, sir; there has been
no change.
Q. The inspectors on your board that day were yourself, Mr. Keck, Mr. Smith,
and Mr. Carver? — ^A. Yes, sir.
Q. And yourself? — ^A. Yes, sir.
Q. Was there any oath administered to you four inspectors when you started
in in the morning? — A. Yes, sir.
Q. By whom? — ^A. By the city clerk.
Q. Did he fill out the certificates of oaths, or were they filled out in any of
the books — election books — in use there that day? — A. They were filled out in
one.
Q. The poll book?— A. Yes, sir.
Q. That poll book you put in the ballot box?— A. Yes, sir.
Q. And locked It up when you got through? — A. Yes, sir.
Q. When you got through that night did you lock up the ballot box?— A. Yes,
sir; and sealed it; put the ward seal on It
Q. What do you say as to whether the vote for Representative In Congress, as
shown by the Exhibits 62 and 64, the statement books, correctly shows the vote
for John^ M. C. Smith and Claude S. Carney which each received there on that
election day from the ballots In the ballot box when you counted them for
Representative In Congress?
Mr. Maynabd. I object to that as Incompetent and immaterial and the con-
clusion of the witness.
A. Absolutely correct.
Q. Now, they asked j^ou about the tally sheet you have in your hand. I notice
your board changed the ruling on the pages there where the count was kept for
the candidates for Representative In Congress from what the printed form
was. — A. Yes, sir.
Q. You drew a big. heavy, blue line through page 12, didn't you, and 13?— A.
Yes. sir; page 13.
Q. On the left side of the line you put the word "Add?"— A. Yes, sir.
Q. And on the right side of that line you put the word "Deduct?" — A.
Yes, sir.
Q. Is that correct? — ^A. Yes, sir.
Q, I notice that you have opposite the name John M. C. Smith 22 strokes or
tallies, lead-pencil tallies?- A. Yes, sir.
Q. On the left hand of that line on the add side?— A. Yes, sir.
Q. On the left-hand side of the blue line you have two tallies? — ^A. Yes, sir.
Q. I also notice next to the name John M. C. Smith now are the figures 32?—
A. YeB, sir.
Q. What do the figures 32 indicate?— A. Thirty-two split votes,
Q. This tally-sheet book is the one on which you kept the split vote8?-7-A.
That is all.
Q. That is what It was used for?— A. Yes. glr; that Is what it was for.
474 CARNEY VS. SMITH.
Q. Whatever there is there until you get over to the totals on the right-hand
side of pnpe 13 relate to the split votes? — A. Yes, sir.
Q. And uothinff else? — A. Not anything else.
Q. That 32 op|)08ite the name John M. C. Smith indicates the split vote, does
it?— A. Yes. sir.
Q. I mitice the name (^Innde S. (*:iriiey you have 41 In flKiueP? — A. Yes. sir.
Q. What does that 41 indicate? — A. Forty-one 8i)llt votes.
Q. I also notice opposite the name Claude S. Carney 3 votes, what does
that Indicate? — A. That he got 3 votes from some other party.
Q, That is on the add side of the line?— A. Yes, sir.
Q. I notice opposite the name Claude S. Carney on the deduct side you have
seven strokes. — A. Yes, sir.
Q. What does that indicate? — A. S«»reu I>enMHTat votes for somebody else.
Q. It means they voted Claude S. Carney ^^-ptes? — ^A. Yes. sir.
Q. The two strokes you have o])iK>site the nan''i<*^<ilui M. i\ Smitli lieside that
blue line means taking 2 votes off John M. C. Smith?— A. Yes, sir.
Q. On the add side of that line you have, in figures, 22 oi»iK)slte the njuue
John M. C. Smith?— A. Yes, sir.
Q. You also have 22 strokes? — A. Yes, sir. *■ ^
Q. You added those two together and you have 54? — A. Yes, sir.
Q. You take the two on the deduct siide of that line and you have 52?— A. *
Yes. sir.
Q. I notice the total split vote carried out in the column ** Total split votes"
is 52. — A. Yes, sir.
Q. That figures out exactly opi>osite the name John M. C. Smith? — A. Abso-
lutely correct.
Q. Anybody can see right on there, you have added th*».^ wonls ** :idd '* ;inil
** deduct " and it shows on the face how you did It? — A. Yes. sir.
Q. Any schoolboy can do that? — A. It simply expedites matters.
Q. It is plain on the tally-sheet book Just how you did that; anybody could
pick up the btMjk with the Information that is on there and the "add " and "de-
duct," nnd he will w»e that one line Is " add " and the other side " deduct." and
the data is then^ by which yon can determine the very figures you put in there
in the total si)lit column? — A. Yes, sir.
Q. Opposite the name Claude S. Carney, on tlie add side of the big heavy
line your board drew through this exhibit, you have the flgtires 41? — ^A. Yes.
sir.
Q. You have three strokes? — A. Tes, sir.
Q. And those added together make 44? — A. Yes, sir.
Q. On the " deduct " side of that line you have charged ui) agninst Cl.inde
S. Carney 7 votes? — A. Yes, sir.
Q. You have 44 and take 7 from 44 and y(»u have what? — A. Thirty-seven.
Q. You have 37 total si)llt votes oi)p(»sIte the name Claude S. Carney?— A
Yes, sir.
Q. Now. then, do you know whether that was wr'tten in there opposite the
names of the candidates for Ilepresentntive in Congress the night of the elec-
tion, November 5, 1912?— A. It was not.
Q. Neither In writing nor figure?? — A. Neither one.
Q. In this statement book. Exhibit 04?— A. No. sir: that was filled out by
Mr. Keck, the Republican alderman.
Q. Did you look this over the next morning? — A. No, sir; I left the city.
Q. You stated that that tally-sheei book was completed on the night before
your board adjourned? — A. Yes, sir.
Q. And the vote announced to the public? — A. Yes, sir.
Q. So the laiblic knew whether you were making any false returns or not?
(No answer.)
Q. Now, you say that this tally-sheet book, E2xhibit 65. was written out and
completed? — A. Yes. sir.
Q. The night before your board adjourned? — ^A, Yes, sir; and the vote
announced.
Q. As shown now In this tally sheet for Representatives in Congress, was it
not? — A. It was read off that book: that is tlie book that was kept.
Q. This tally-sheet book showed that the total straights were 59 and the total
splits 52?— A. Yes, sir.
Q. The total votes received; 111 for John M. C. Smith?— A. Yes, sir.
Q. It shows Claude S. Carney's total straight votes 101 and the total split
votes 37. and total votes received 138, does it not? — A. Yes, sir.
CARNEY VS. SMITH. 475
Q. Exhibits 62 and 64, for Representative in Congress, show for John M. C.
Smith 1117--A. Yes, sir.
Q. And for Claude S. Carney 188?— A. Yes, sir; both of them.
Q. Your attention was called by counsel to page 12 of Exhibit 64 and page
12 of Exhibit 62, under the heading "Total votes received'' for the different
candidates for county surveyor, and it shows 423, does it not, for the different
candidates for county surveyor? — A. In pencil mark, 423.'
Q. In Exhibit 62 it shows 423?— A. Yes, sir.
Q. In Exhibit 64 it shows 523?— A. Yes, sir.
Q. The votes received for the different candidates there for county surveyor
foot up how much? — ^A. Four hundred and twenty-three.
Q. I'nder the heading ** Drain commissioner," on Exhibit 64, it shows 422 total
votes under that 571, does it not? — A. Yes, sir.
Q. In Elxhlbit 62, the one I hold in my hand, the 571 has two lines drawn
i^cross? — ^A. Yes, sir.
Q. The total votes for the various candidates for commissioner, how much do
they amount to? — A. Four hundred and twenty-three.
Q. There have been no changes, erasures, or corrections in the figures that
are opposite the names for the office of county surveyor on either of those ex-
hibits 62 or 64?— A. No, sir.
Q, There are no changes in the figures opposite the names of any of the can-
didates for the office of drain commissioner on either of these exhibits 62 or
64?— A. No, sir,
Q. These figures opposite the names of the candidates for those two offices
have not in any resr)ect been changed; the only place where there has been a
change is in the total vote? — A. An error In the total.
Q. They changed that over? — ^A. Yes, sir; that was filled out after I left the
city.
Q. If there were no total votes put in on these exhibits you could still add up
the individual votes received by each officer and determine how many total votes
were received? — A. Yes, sir; 422.
Q. You said there were a couple of men who received assistance there? — ^A.
Yes, sir.
Q. One was John Bremer? — A. Yes. sir.
Q. Do you know John Bremer? — A. Yes. sir.
Q. He was the first man who applied for assistance? — A. Yes, sir; I think so.
Q. Was he an old man? — ^A. Yes, sir.
Q. How old was he? — A. I think 70 years old.
Q. Was there anything in his appearance that indicated that he was in any
way physically disabled, eyesight bad, or anything of that kind that you could
see? — A. He couldn't see without glasses; I know that, because I sold him the
home where he livea
Q. You knew that he couldn't see without glasses? — ^A. Yes, sir.
Q. Did he have his glasses there that day? — A. No, sir; but he can't write.
Q. Yon knew that before this election day? — ^A. Yes, sir; he was very near-
sighted; that was all.
Q. Did he have any glasses that day there to the i)oll8? — A. No, sir; he did
not
Q. Did you go to the booth with him? — ^A. I did not.
Q. Who did? — A. Alderman Keck, a Republican, and George Carver, a
Democrat,
Q. Do you know what occurred in the booth? — ^A. No, sir; I do not: only
what I heard him say.
Q. Was he the fellow who wanted to know whether he would vote for
Teddy or Roosevelt? — ^A. Yes, sir; I heard that
Q. You don't know of your own knowledge whether those inspectors marked
his ballot or not, or simply told him the difference between Teddy and Roose-
velt?— A. They told him he was one and the same person.
Q. But whether they in any way assisted him in marking his ballot you
don't know? — A. No, air; I do not.
Redirect examination by Mr. Frankhauseb:
Q. How far is the council room where you made out your returns from the
polling place where you voted? — ^A. About half a block.
Q. As I understand you, about half past 10 o'clock at night you all went
home and went to bed and reassembled the next morning about 9 o'clock at
the council room and made out your returns? — A. Yes, sir; we took the ballot
box from the voting place to the council chambers.
476 CABNEY VS. SMITH.
Q. You went home about half past 10 o'clock when you got through, and put
the ballot box in the council chamber and reassembled the next morning and
completed your returns?— A. We reassembled the next morning; yes, sir.
Q. Did you open the ballot box when you returned? — ^A. Yes, sir.
Q. What for?— A. To get the books out so they «ould not be tampered with.
and it was locked up and sealed up.
Q. You had all the books in the box?— A. Except the registration book,
and that was turned over to the city clerk and put in the vault.
Q. Look at those two poll books; one is from the second ward, and the other
Is your ward ; are the words " add " and " deduct " In the same handwriting? —
A. I think not; it may be.
Q. If it was, how could that be, one being in the second ward and one in the
first?— A. The city clerk wrote "add" and "deduct" here. I don't know
whether he did there or not.
Recross-examination by Mr. Adams :
Q. This ruling in the tallj'-sheet book that you used iu your ward — these
rulings with the big blue line— I call your attention to the words " add " and
''* deduct" entered in this book; they were presented to your board on the
morning of election? — A. No. sir.
Q. When were they put in there?— A. In the afternoon, towsu-d night.
Q. Do you know who wrote them? — ^A. Yes, sir.
Q. Who ruled your books? — ^A. The city clerk.
Q. Who put in the words " rdd " and " deduct "?— A. The city clerk.
WILLIAM BEMER, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestee as f6llowB:
Direct examination by Mr. Frankhauseb:
Q. You live in Albion?— A. Yes, sir.
Q. You are supervisor of the second ward? — ^A. Yes, sir.
Q. And was November 5, 1912? — ^A. Yes, sir.
Q. As such supervisor you acted on the election board that day? — A. Yes, sir.
Q. What part of the work did you do that day?— A. During the day when
people were voting I received the ballots and deposited them in tJie ballot box,
or voters rather.
Q. Did you do that all day? — A. Yes. sir; except when I went to dinner.
Q. Were you there that day when illiterate voters asked for assistance? — ^A.
We have no illiterate voters over there that I know of; we have two blind men
and two others almost totally blind. I am not positive that they all voted that
day. I am not certain whether they all voted or not. I am of the opinion tliey
did.
Q. Did you hear any oath administered to any voter that day who asked for
assistance? — A. No, sir; I did not I might say that those men are men that
we are all well acquainted with and have been for years, and I know that they
are blind; two of them I know can scarcely see a form at any time — real old
men.
Q. Two of them you remember of applied for assistance? — A. I think the
entire four applied for assistance, but I am not positive.
Q. Are you sure that none of them were sworn? — A. No, sir.
Q. Now, you closed, I supr»oso, at 5 o'clock and began counting? — A. We closed
at 5 o'clock and began counting; yes, sir.
Q. When did you get through? — ^A. It was nearly if not quite 11 o'clock, as I
remember now.
Q. What did you do then? — A. We took the ballot box and took it down to the
council chamber and left it there and went home, putting all the paraphernalia
in the ballot box except, I think, a statement of the votes. I do not think we
put that in.
Q. What did you do with the ballot box?— A. We took it to the council
chamber.
Q. In whose possession was it? — A. I 8up|K)se in the possession of the dty
clerk. It is the usual place to deposit them when we get through.
Q. You put that in the council chamber? — A. Yes^ sir; in the room
Q. Had you completed the count? — ^A. Yea, sir.
Q. What books did you put in there? — A. As I r^nember it now we put in
all the books except the tally sheet — not the tally sheet, but the statement book.
Q. Did you put in the books that yon afterwards returned here to Mar-
shall?— A. No, sir; they were not put in there.
CABNBY V8. SMITH. 477
Q. Who took care of those? — A. Mr. Labertenux, a man appointed by the
council to act as inspector in that ward.
Q. Where did he take them? — ^A. I think he locked them in the siife in his
oflSce that night. I am not positive; I think he did. He is a very painstaking
man. I think he did.
Q. You turned them over to him and he took care of them? — A. Yes, sir.
Q. What state of perfection were they, how near had they l)een made out? — ^A.
I couldn't tell you. I might tell more about it if I could see the book.
Mr. Adams. What they did after the board adjourned I object to.
Q. Now. I think I have shown that you were sui)ervi8or in your ward? —
A. Yes, sir.
Q. You acted as chairman, did you? — A. By virtue of my office I 8upix>se I
am chairman of the board.
Q. I will ask you now — I will go back a little — where were you when you
signed up those returns? — ^A. You mean the statement
Q. I mean the board of inspectors when you say you signed the returns. — A.
When we signed the tally sheet? I was about to say that the poll book and
the tally sheets were signed up and locked into the box with the ballots after
we got through counting that night, on the night of the 5th, on election night.
Q. I show you Exhibits 66 and 67. being the two statement bookn, as we
claim, from the second ward of the city of Albion. I will ask you whether those
are the li*M>ks you gentlemen made out? — ^A. Those are the books. My name is
signed here.
Q. You signed first in each exhibit? — A. I think I signed in each one first;
yes, sir.
Q. Just read the certificate on the record tliere and the names signed to the
certificate in the back part. Read the certificate in rhe statement book marked
•66.''— A. (Heading:)
"State of Michigan.
" County of Calhoun, an.
" We do hereby certify that the foregoing is a correct statement of the votes
given in the second ward of the city of Albion, county of Calhoun. State of
Michigan, at the general election held on the Tuesday, the 5th day of November,
A. D. 1912.
" In witness whereof we have hereimto set our hands at the city of All>ion,
said county and State, this 6th day of Novemt)er, A. D. 1912.
" William Bemer.
'* ¥rkd LAn»':KTEAux.
*• Otto Conrad.
" Charles H. Baker.
"H. C. Nelson."
Q. How many of them signed there as inspectors? — ^A. All five of them signed.
Q. I will ask you to look at Exliibit 67, the other statement book, and ask
you whether that certificate is dated also November 6 and signed hy the same
men you just read? — A. I think they are identical ; I don't pee any difference In
them.
Q. As a matter of fact, did you sign them November 6? — A. Yes, sir.
Q. Where were you when you signed them? — A. In Mr. Laberteaux's office.
Q. \Vhere was that with reference to the polling place? — A. Well
Q. How far from it? — ^A. Well, I supiwse it would be considered two blocks,
although one street does not go through.
Q. A couple of blocks from the polling place? — ^A. Yes, sir.
Q. When did you sign it? — A. The next morning after election.
Q. What time of day? — ^A. We met at al>out 9 o'clock in the morning and
slgne*! them up.
Q. In other words, you adjourned after counting the votes and met the next
morning at 9 o'clock in Mr. Laberteaux's office and made out your returns V — A.
No, sir; I don't think we adjourned: we counted the votes and placed them in
the ballot l)ox and closed It ; the polls were closed.
Q. And you went home and went to bed? — A. Yes, sir; and finished up the
next morning.
Q. Reassembled the next morning and made out the returns? — A. Yes, sir.
Q. How much of those returns did you make out when you reassembled? Did
you write any words or figures in the statement book? — ^A. I am not positive
whether that was all done the next morning or not ; part may have been done
the night before.
478 CARNEY VS. SMITH.
Q. Don't you have any recollection about how long you stayed at Mr. Laber-
teaux's office? — ^A. Some little time; I should say we were there two hours.
Q. Can you give a fairly correct statement of about how much writing you
did there? — A. If you will show me that book, I think I can tell you.
Q. I am only showing you the two statement books now. — ^A. After lookiug
at this I will look at the other one and then I will answer your question. I aui
of the opinion that all this was done In his office, because the handwriting here
in the one book first written In, that book, is my wilting.
Q. You siiy you think that was done in the office? — A. I think this book was
all done in the office.
Q. What book Is that. Exhibit 67?— A. Yes, sir.
Q. Ix)ok at the other one, Exhibit 66. What do you think about that? — A. I
was lookiug to see w^hether there was any of my writing in it.
Q. Take your time. — A. I do not think there is any of my writing in there
except to sign up.
Q. Then, you can't remember how much of that was made out at Air. Ijil>€'r-
teaux's office the next morning? — A. No, sir; I cnmldn't say that I know.
Q. I will ask you to turn to A. I think one book was all made out in the
office and I think the other one was made out before.
Q. Anyway you didn't sign any of them until after they were made out? —
A. No, sir; we c/>uldn't very well.
Q. I mean you didn't fill in the words and figures — you didn't sign and fill
in tlie words and figures afterwards? — A. No, sir.
Q. I call your attention to the vote on (Naigressman for the thin! district:
I wi^h you would read into the record what John M. C. Smith and Claude S.
Carney received there? — A. John M. C. Sndth in wonls "seventy-nine" and in
flgui*«»s " 79 " : Claude S. Carney in words " one hundred and twenty-s"x " and
in figures " 126."
Q. The other statement book agrees with those figures; look at it? — A. Yes.
sir; they are the same.
Q. I show you Exhibit 68; what is that? — A. The poll book of the general
election held on Tuesday the 5th day of November, A. D. 1912. in the second
ward of the city of Albion, county of Calhoun. State of Michlg)Ui.
Q. Turn to where the officers were sworn and tell how many Inspectors were
sworn in there that day; how many signed the oath of office as Inspectors? —
A. Six.
Q. Six inspectors? — A. Yes, sir; do you wish the balance of them?
Q. Yes. — A. Charles S. lA)ud was put on as an extra man for the amount of
work to be done that day. After the voting was all done and the polls closed.
because he had other business or something of that sort, we excused him.
Q. He never slgntnl any of the returns? — A. No. sir.
Q. How many clerks did ycm swear there? Did this man Ix>ud act as in-
si)ector during the whole day until you quit and the jkAIp closed at 5 o'clock? —
A. Yes. sir.
Q. Then you had six inHi)ectors during the election? — A. I don't know
whether you would call them all inspectors or not.
Q. It shows they were sworn as inspectors, does it not ; look at the oaths of
office and read the names of the insiiei'tors as they api)ear in the book? — ^A.
(Heading:) •* CHiarles H. Baker, H. C. Nelson. Otto Conrad, Charles 8. I»ud.-
How am I going to know who wrote that " insi>ector " over that word " clerk "?
$omebo<ly erased " clerk '* and wrote In " Inspector."
Q. Read It as the book appears. — A. I will explain here by saying some one
has drawn a line through the word " clerk " and written in ** Inspector."
Q. That is on the i>age of the oath of clerks? — ^A. Yes, sir; some one has
drawn a pen through that and written In ** tnsiiector." William Bemer*8 name
Is under that.
Q. What Is the next one? — A. I don't know whether I f>igned that liefore ** In-
spector " was written in there or not.
Q. You would be an lnsi»ector. being the supervisor? — A. Yes. sir. The next
Is Frank Laberteaux. The word "clerk" has a line drawn through and the
wonl " insjKK'tor " written over it.
Q. Was I^berteaux an insjiector? — A. He was appointed election inspector
by the council.
Q. He signed this as insqjector, as it now api^ears? — ^A. Yes, sir; I don*t
know whose writing that is nor when it was done.
Q. Is that all? — A. As it appears on the book they are all sworn In as 1n-
8i>ectors.
CARKEV VS. SMITH. 479
Q. Yourself and Laberteiux were artually inspectors V — A. Ye>?, sir.
Q. Then, more than one man swore you all in as a notary imbllt? — A. Yes,
sir.
Q. Read that oath» what you signed. — A. (Readinjc:)
" I do solemnly swear that I will support the Constitution of the I'uited
States and the constitution of this State, and that I will faithfully disc^hari^e
the duties of the office of clerk of this election held on Tuesday the 5th day of
November. A. D. 1912, according to the best of my ability.
'* Taken, subscribed, and sworn to before me this 5th day of November. A. D.
1912.
" R. McCrfTCHEON, Xofarjj Publk."'
Q. Nobody signs tliere as clerk; nobody takes the oath as clerk? — A. No, sir.
Mr. Fbankhauser. Apimrently there w^as a clerk sworn that did not sign.
The Witness. It would look as though some one filled it all in there and
nobody signed it: the notary public signed it in the wrong place. No one signed
it there.
Q. Did you have anyone except the names you have read on the board that
day as clerks or otherwise? — A. No. sir.
Q. Mr. McCutcheon did not act on the board? — A. No, sir.
Q. I call your attention to the last page where the certificate api)ears on the
poll book: what Is the date of that certificate there — go ahead — what is the
date of that certificate in the poll book? — A. The 5th day of November.
Q. Well, now, as a matter of fact, that should have been dated the 6th if
yoo had it dated the same day you signed it; wouldn't it? — A. I can't see it
that way.
Q. When did you sign it? — A. This poll book was signed on the 5th and
locked up in the ballot box.
Q. Then, It was one of tiie statement books you signed on the 6th? — A. Y^es.
sir: that is all.
Q. But this poll book was signed before you left the voting place?— A. Yes,
sir.
Q. I show you Exhibit 69, the tally-sheet book from that precinct of the
second ward of the city of Albion, and ask you how that was kept : whether in
ink or pencil or both? — ^A. Well, some was filled out with ink and the tallying
seems to have been done with a pencil and the writing seems to have bepn done
all in ink except in one or two instances.
Q. The figures are not all in ink? — A. The figures are in pencil mark.
Q. And the tallies, they are in pencil? — A. Yes, sir.
Q. On page 10, the names of the officers are some in pencil? — A. Yes, sir.
Q. I call your attention to the office of Congressman for the third district;
read the figures opposite the name of John M\ C. Smith of the total straight
votes.— A. Thirty-three.
Q. The splits?— A. Forty-six.
Q. The total ?— A. Seventy-nine.
Q. Cllaude S. Carney's total straight votes; how money?— A. Eighty-one.
Q. Total si)lits?— A. Forty-five.
Q. The total? — A. One hundred and twenty-six.
Q. I will ask you this question, whether pages 12 and 13 are not tallied in
lead pencil?— A. Yee, sir.
Q. I will ask you whether there appears on that page opposite the name of
John M. C. Smith 46 tallied votes?— A. It might not appear; you understand
this system is the add and deduct.
Q. The question is whether there are 46 tallies appearing opposite his name:
when we are t^ilking of tallies I mean straight ui)-and-down marks; are there
46 straight ui)-and-down marks there opposite the name of John M. C. Smith?—
A. No, sir ; not done in that way.
Q. But you s(;arted with how many? Thirty-two splits?— A. Forty-six splits.
Q. Explain on the record where you got the 46 from, whether it could be
obtained by an examination of that page of the tally sheet?— A. I will answer
that by saying it could be obtained if you understood this svstem of counting.
Q. Where did you get the 46 from? Gould it be obtained by an examination
of that page of the tally sheet by some one who did not understand that sys
tern?— A. Why, probably not.
Q. Could you figure from that page. If you did not know how the votes had
been counted, where that 46 was obtained from?— A. You could if it were some
one who understood the system.
Q. But withojit that you could not?— A. I think I could.
480 CAKNEY VS. SMITH.
Q. You have the book before you? — A. Yes, sir.
Q. I 8i)y 8upi)08e you had not been on thnt board and didn't know anything
jil)out the system. c*ould you figure from thoHe two pages before you where those
46 split votes came from? — A. I think I could; yes, sir.
Q. How? — A. I^t me take a paper and pencil and I will try to show you.
Q. Explain how you got those 46 votes ; you have a pencil, paper, and the
figures.— A. Well, we have got John M. O. Smith on the count; he got 33 straight
votes and he got 32 aiilits.
Q. Where does it show It on the book? — A. Right here.
Q. Whereabouts is the word "split "?— A. That is what that means; it don't
occur there.
Q. If the word ** split " is not there, how would a stranger know" they were
splits; that is what I am asking you? — A. I stated a little while ago, and I am
not going to do it again.
Q. You have to assume that these are 32 split votes to start with? — A.
Yes, sir.
Q. If yon didn't know there were .'^2 split votes you could not. from this iMgft,
figure ui> 46 split votes, could you? — A. You might not be able to do it if you did
not understand that system of counting.
Q. Assuming, then that the canvassing board did not understand that system
of counting, could they tell from the tally sheet where those 46 votes "came
from? — A. I presume if the board did not understand that system that It would
call some one that did and find out
Q. If you didn't know anything about that system of counting, could you take
these two pages open before you and ascertain where those 46 split %'otes came
from?- A. I think I could if I would take the time to study it out.
Q. You could stay there a month and you could not tell whether that was
32 split votes. There is nothing to show that this is 32 split votes, is there?
You don't know what it is, do you, unless somebody would tell you?' It Is not
In the column headed "Split votes"? — A. No, sir.
Q. It is not in the column headed " Straight votes"; consequently you would
have to asi<ume something with regard to those 32 votes, would you not?
Mr. Adams. I object to counsel cross-examining his own witness.
Q. Isn't that right? You would have to assume those 32 split votes — assume
something that that page does not show? — A. I will repeat what I stated before;
anyone that didn't know that system of counting perhaps would have difficulty
in making that out.
Q. In order to make that out, you would have to assume that was 32 split
votes? -A. That would depend upon the ability of the man.
Q. Could he? — A. I don't know whether he could or not.
Q. Suiipose a man from Hillsdale should come over here and you would
hand him that book, he could not tell anything from that page — from the tally-
sheet book you handed him?
Mr. Adams. I objecft to cross-examining his own witness.
Q. Isn't that true? — A. If he didn't know, he might ask somebody who did.
Q. He would have to get outside information — outside of the book — wouldn't
he? — A. Possibly.
Q. That would be true of the Claude S. Carney split vote, would it not? —
A. What applies to one would, I think, apply to the other.
Q. When you got through counting in the evening what did you do with
(his ballot box? — A. We put the ballots in the box. tied them up, and put the
necessary books on the inside, except, of course, the tally sheet, I think that
is called, and lockeil and sealed the box and took it over to the council chamber
and left it there.
Q. In whose charge was it? — A. It Is presumed to be in charge of the city
clerk ; 1 don't Ima^ne the city clerk was there and stayed all night with the
ballot boxes, and has been there ever since.
Q. It was sealed and delivered to the city clerk's oflSce? — A. Yes, sir; the
council room provided, for that purpose.
Q. You left it there that night?— A. Yes, sir.
Q. Was it locked in the room? — A. Yes, sir.
Q. I mean the room It was taken to? — A. I presume it was locked, and I
presume other boxes came in after we went away.
Q. You don't know of your own knowledge? — A, I don't know that the door
was locked after the votes were left there.
OABNEY VS. SMITH. 481
Q. Who took the boxes there?— A. I went, and two other fellows; I can't
teJI jDst the members of the board; It didn't take the whole number: some of
them.
Q. You don't know whether the room was locked that the boxes were put
In'o?— A. I don't know that It was locked after we went away. I might make
that a little plainer perhaps, so you will understand it better ,by saying that
in the back part of the council chamber is a hall or room where the firemen
sleep, and the front part of the building is used as a council chamber, and
there is some one there all the time, and no one can get these Iwxes day or
night without being seen, I don't believe, if It was not locked.
Gross-examination by Mr. Adams:
Q, The tally-sheet book, to which your attention has been called. Exhibit 69,
was used there that day, in so far as you kept any tallies there at all, rather
than the totals of any particular votes for the purpose of what? Ck>unting
what— what ballots, splits or straights?— A. The total vote was on the book
there.
Q. In the column, "Total straight votes," you entered the total straight
votes?— A. Yes, sir.
Q. And also the total split votes received?— A. Yes, sir.
Q. These strokes you put down here; did you put down on that book any
strokes except the split ballots?— A. These splits are for or agjiinst; one side
would be for. and the other side would be against
Q. Suppose you take the book— that book— and it didn't have those words
"add" and "deduct" opposite the candidates' names, you would not know
from that book whether they were splits or straights?— A. I don't think I
would.
Q. So In the poll book you had the tally marks simply show the split votes;
you couldn't tell whefher the board put those tallies on there— the members
of the board that day put on their strokes to represent the split votes or rep-
resent the straights, could you? — A. No, sir.
Q. That book, when you had carried out the total split votes on this Exhibit
69, then take your figures here on this book ; a man could not determine, could
he, what your process was by which you got those figures? — ^A. It seems to
me they could.
Q. Opposite the name of John M. C. Smith you notice the figures 32?— A. Yes,
sir.
Q. You have drawn a big heavy blue line through page 13? — A. Yes, sir.
Q. So that line passed by every man's name on that page? — ^A. Yes. sir.
Q. Well, now. opposite the name of John M. C- Smith, there are the figures
32?— A- Yes, sir.
Q. There are also 21 strokes? — A. Yes, sir; opposite his name.
Q. Now, then, on the left-hand side of the long blue line is the word " add''? —
A. Yes, sir.
Q. And on the right-hand side is the word "deduct " on those two pages? —
A. Yes, sir.
Q. You had 21 and the strokes 32, as represented In figures, you would have
53? — A. I think those are the figures.
Q. You could get that from the page, could you not? — ^A. Yes, sir.
Q. On the right-hand side of the blue line opt)osite the name of John M. 0.
Smith you find seven strokes? — ^A. Yes, sir.
Q. You take the seven and that says "deduct"? — A. Yes, sir.
Q. Whatever is on the right-hand side of the blue line it says "deduct"? —
A. Yes, sir.
Q. You deduct those 7 strokes from the strokes on the left-hand side of
the blue line opposite the name of John M. C. Smith amounting to 53 and what
do you have? — ^A. Forty-six.
Q. Over in the column "Total split votes" you have 46? — A. Yes, sir.
Q. That shows there were 46 split votes? — A. Yes, sir.
Q. Then, figuring backward you find that 32 and 21 added make 53? —
A. Y'es, sir.
Q. On the right-hand side of the line it says, "deduct seven"? — A. Yes, sir.
Q. It shows on the face what It figures, don't it? When you take ofl* the
figures there on that page there is no other way that It could be figured out? —
A. I know of no other way.
Q. OpfK)Site the name of .John M. C. Smith, under the heading " Total straight
votes," it says, on this Exhibit 69, 33r— A. Yes, sir.
286—13 31
482 CABNEY VS. SMITH.
Q. Yoii add the 3S total of straight votes aud the total 46 split votes and
you have 79 V— A. Yes, sir.
Q. The total of splits aud straights there in Exhibit 69 are 33 and 46 opposite
the name of John M. C. Smith, amount to 79?— A. Yes, sir.
Q. That corresiKUids exactly with the total votes received, as shown under
that column headed ** Total votes received." opi)08ite the name of John M. C.
Smith?— A. Yes. sir.
Q. Opposite the name of Claude S. Carney in this Exhibit 69 you have in
figures 46? — A. Yes, sir.
Q. You also have opposite the name of Claude S. Carney, In strokes, six? —
A. Yes, sir.
Q. Those figures 46 aud the strokes 6 are on the left-hand side of the blue
line? — ^A. Yes, sir.
Q. Under the heading It is entitled "Add"?— A. Yes. sir.
Q. So you add the 46 and the 6 and you would have what? — ^A. Fifty-two.
Q. On the right-hand side of the blue line, opposite the name of Claude S.
Carney, under the heading to the right of the blue line "deduct," you haTe
seven strokes? — A. Yes. sir.
Q. That says "deduct "?— A. Yes, sir.
Q. Deduct those 7 strokes from the sum total of the figures 46 and the 6
strokes on the left-hand side of the line, you would have 7 from 52? — ^A. Yea,
sir; that would be 45.
Q. Under the heading "Total split votes" you have 45, haven't you? —
A. Yes, sir.
Q. Adding together those 45 total split votes and the 81 total straight votes
for Claude S. Carney, it would make 126? — A. Yes, sir.
Q. Those are the figures that are contained in the column headed " Total votes
receiver"? — A. \>s, sir.
Q. When you take the split votes under the heading " Total split votes " oppo-
site the name of John M. C. Smith In this exhibit as 46, then come back here to
these strokes opposite the name of John M. C Smith, it Is very plain to see how
it is obtainetl? — A. Yes, sir.
Q. It is very plain to see they are split votes? — ^A. It is to me.
Q. Isn't it so on the book there, when It says the total split votes are 46,
opposite the name of John M. C. Smith ; that shows the split votes and it says
so on the book ; does not that say so right there, " Xotal split votes 45," opposite
John M. C. Smith's name? — A. Yes, sir.
Q. You opened the ballot box on the morning of the 6th? — ^A. No, sir.
Q. What did you put in the ballot box; you said something about tally
sheets? — A. The tally sheet and poll book.
Q. Where did you put those, the tally sheet and poll book, in the box? — ^A. Yea,
sir.
Q. In the ballot box? — A. Yea, sir; together with the Imllots.
Q. What did you do with the registration book? — A. I am not positive about
that, and I think I am positive that Mr. I4iberteaux took that home and locked
St in the safe.
Q. What books did you have before you over there on the morning of the 6th
that you had used on the 5th? — A. Just the statement books, that is all.
Q. Did you have the tally book? — A. The tally book was locked In the box.
We didn't have that there ; they were locked up and signed up.
Q. How did you figure out the number of votes over there; you had one tally-
sheet book, didn't you? — A. After we got all through counting and the entries
were made on the tally sheet and poll book, we took one of the Instruction ballots
and marked it all out as a reference to go by.
Q. Here is the tally-sheet book you returned among the returns to the county
clerk or to the probate Judge for the board of county canvassers; where did
you get that tally-sheet book there that morning of the 6th; did you complete
that the night of the 5th? — A. That tally sheet was completed the night of
the 5th.
Q. Where did you get it that night? — A. In the ballot box.
Q. To get it out the next morning and return it to the county clerk or the
Judge of probate you must have inilocked the ballot box and taken them out? —
A. I don't know ; I presume It was locked and the proper books locked in the
box, and I suppose that was looked in.
Q. It appears to be the book returned to the county clerk ? It is the tally-sheet
book, Exhibit 69?— A. Are there two of those?
CABNEY VS. SMITH. 483
Q. Yes, sir. — A. One was probably locked iu Uie box and one was used in
the morning, but I am not positive about that.
Q. I notice on pages 12 and 13, opposite the name John M. C. Smith, these
figures under the heading " Total straight votes," " Total split votes," and
*• Total votes received," likewise the figures which appear opposite the name
Claude S. Carney. What do you say as to whether those figures here, 33
straight votes for John M. C. Smith and 46 split votes for John M. C. Smith,
correctly show the number of straight votes and the numl)er of split votes that
you counted up there that day — your board— for John M. C. Smith; does that
tally with the vote cast that was deposited in the ballot box? — A. Yes, sir.
Q. Opposite the name of Claude S. Carney, total straight votes 81, total
splits 45 ; what do you say as to whether those respectively show correctly the
QUDiber of straights and splits that Claude S. Carney got there that day of the
votes that were deposited in the ballot box, I mean by your board? — A. I think
they do.
Q. Did you after you got through that night declare the vote tor John M. 0.
Smith as a candidate for Representative In Congress? — ^A. Yes, sir.
Q. Publicly?— A. Yes, sir.
Q. Did your board, after you got through counting before going away, declare
the vote for Claude S. Carney as shown by the count you had made there? — ^A.
Yes, sir.
Q. Publicly declared that? — ^A. Yes, sir.
Q. Did you do this with every candidate on the ticket? — A. Yes, sir.
Q. Publicly declare the votes, straights and splits? — ^A. Yes. sir; read the
final result publicly.
Q. Now, who acted as inspectors there that day on your board? — A. Do you
wish to make a division between inspectors and clerks?
Q. Yes. Who acted as inspectors? — A. It was the intention
Q. Who acted as inspectors there on the board? — ^A. It was another election
board that Mr. Loud and Mr. Kuowlton acted as clerks, I remember, and the
other four as insi)ectors. Some error seems to have been made.
Q. Who did act as clerks that day? — A. The fact of the matter is, when one
would go to dinner another would take his place about in that way, so no one
acted as clerk all the time. Mr. Loud did the principal part of the writing
during the time the ballots were being cast
Q. All the men who acted there on tliat board that day were sworn in before
they acted? — ^A. Yes, sir.
Q. Now. the statements books here. Exhibits 66 and 67. and your tally-sheet
book for Representative in Congress, I wish you would state whether they agree
as far as the votes received for John M. C. Smith and Claude S. Carney, for
Representative in Congress are concerned.
Mr. Maynard. Objected to as incom[)etent, irrelevant, and immaterial and
not the best evidence.
A. The books correspond, both as to figures and writing.
Q. The tally-sheet book. Exhibit 69 and the statement book, Exhibit 66, and
the statement book, Exhibit 67, show that John M. C. Smith, Representative
for Congress, received 79 votes? — ^A. Yes, sir.
Q. Each and every one of those books show that? — A. Yes, sir.
Q. Each of those exhibits show that Claude S. Carney received 126 votes
for Representative in Congress? — ^A. Yes, sir.
Q. Just alike?— A. Yes, sir.
Q. Now^, you speak about some men receiving some instructions there that
day? — ^A. Yes, sir.
Q. You think there were possibly four of them? — A. I am quite iwsitive there
were four ; I am quite sure, but not absolutely sure.
Q. Now, those men who were instructed there that day, did I understand you
to say were noticeably physically defective? — A. Two were totally blind and
two others incapable of seeing objects of any kind.
Q. You knew that when they came in to vote? — A. I had konwn it for years;
bad a personal acquaintance with all of them.
Q. They were all old men, were they? — A. >fo, absolutely and totally blind;
the men were not really old men. they were 50 or 60 ; two were, I think. 80.
Q. You knew that their eyesight was bad? — A. Yes, sir; I knew that.
Q. You knew that before that time? — A. Yes, sir; for a long time I have
known them.
Q. Was there anything to show that they were not physically able to mark
their ballots without assistance? — A. It could not be readily discerned by any-
484 CARNEY VS. SMITH.
one; they could go nbout with a cane; Just see about enough to tell daylight
from dark. I knew them.
Redirect examination by Mr. Frankhauseb:
Q. Did anyone act as instructor there that day, to instruct the voters?— A.
Yes, sir.
Q. Who acted? — A. I am not certain as to the individual. I am positive as
to one. Mr. Knowlln was one. I know ; but 1 am not ho certain of the other.
Mr. I^berteaux was the other individual, because he always had made it a
point to have one representative of each party go to the l>ooths with those
blind i)eople.
Q. Did you have one regularly api>ointed instructor of voters when the ballots
were distributed? — A. Xo, sir; we didn't have an Instructor. It was presumed
they knew how to vote.
Q. Xow, the first man's name Is Charles H. Baker. Did he hold any city
office? — ^A. He is alderman.
Q. H. P. Knowlin. what was he? — A. He was elect e<l by the electors th«t
morning to perve on the board.
Q. Otto (\>urad. what was he? — A. An rlderman.
Q. Charles L. Ix>ud? — A. He was elected l)y the electors that morning.
Q. William Bonier was the supervisor? — A. Yes. sir.
Q. Frank I^iberteaux, what was he? — A. He was duly elected by the city
council to serve as an election insi»ector.
Q. As I understand, the council electetl two, and one was electeii by the
bystanders? — A. The council electeii one and two were electel liy the organiza-
tion as organize<l that morning for the election.
Q. There would be three ins|»ectc»rs who were elected besides those w^ho would
be inspectors by virtue of their office? — A. ('ounting the one ap|K>int^'d liy the
board of aldermen.
Recross-examination by Mr. Aoams:
Q. You say no one was ap)K)inted to instruct voters generally that day?—
A. No, air.
Q. What you meant by instructor was inspectors who gave assistance to
blind men who came in to vote? — A. All the assistance was given by thj
individuals I have mentioned.
M. O. REED. l)eing sworn to testify to the truth, the whole truth, and nothing
but the truth, testified on behalf of the contestee. as folhiws:
Direct examination by Mr. Frankhauser:
Q. Mr. Reed, you live hi Albion? — ^A. Yes, sir.
Q. Which ward?— A. The fourth ward.
Q. A voter there? — ^A. Yes, sir.
Q. Did you vote there last fall?— A. Yes, sir.
Q. Were you on the board at that time? — A. Yes. sir.
Q. What office, if any. did you hold in the city of Albion?— A. I am supervisor
of the fourth ward.
Q. What i»art of the wcrk did you do tliere the day of the irfection?— A. I
think I gave out the ballt)ts.
Q. You handed the ballots out to the voters?— A. Yes. sir.
Q. Did that all day. did you?— .V I think so, except when I wo«f away to
meals.
Q. While working in that iwsition did any ask for assistance In votlng?--
A. I don't remember of any.
Q. When you went to your meals whom did you leave there? — ^A. I think
Mr. Steinfeliow.
Q. He was an inspector? — A. He was an alderman.
Q. Was he (m the l)oard that day?— A. Yes, sir.
Q. How long were you gone to your meals? — A. About an hour.
Q. At noon, or when? — A. At nt»on.
Q. He took your place when you were gone? — A. Yes. sir.
Q. When it came .*) o'clock you began the count and continued It?— ^A. Yes.
sir; until we finished the count.
Q, What time?— A. It was after 11 o'clock.
Q. Then what did .von do?— A. We placed all the books and the ballots In
the ballot box, and sealed them and locked them and carried them to the councD
chamber.
GABNBY VS. SMITH. 485
Q. All the books?— A. All, except the registration book.
Q. They were locked In the box?— A. Yes, sir.
Q. Where did yon put the box?— A. In the council chamber; in the back part
of the room.
Q. Was the council chamber locked that night? — ^A- I don't know.
Q. Did you help take the box up there? — ^A. Yes, sir.
Q. Was it left in anybody's charge in particular, except as put in the council
chamber?— A. That is all.
Q. And was there until the next moniing? — ^A. Yes, sir.
Q. What time did you reassemble? — ^A. I think about 8 o'clock.
Q. What did yon do with the ballot box then? — ^A. We opoied it.
Q. And took out what? — A. We took the book that was necessary to make
out the statement to the county clerk and the judge of probate.
Q. Who was present when you opened the box? — ^A. I think some of the in-
spectors; whether they were all there or not I don't know.
Q. Who do you remember was there? — A. Mr. Shields and Mr. Clark, I think.
Q. Who had the key? — ^A. I think Mr. Steinfellow generally keeps the key.
Q. Have you any individual recollection of It? — A. No, sir.
Q. Was the box sealed when you closed it the night before? — ^A. Yes, sir.
Q. You broke the seal and got those books? — ^A. Yes, sir.
Q. I show you Exhibit 70. I.ook at that book, which purports to be a state-
ment book of that ward; do you recognize that ^gnature there? — ^A. Yes, sir.
Q. Which one, the last one? — ^A. Yes, sir.
Q. When did you sign that? — ^A. The 6th day of November.
Q. That is the date, but is that the time you actually signed it? — A. I think
it is.
Q. Wliat did you do with the books in the morning there when you came
back; what was there to do to this statement book? — ^A. We had to complete
the statement to the clerk, and it takes considerable time.
Q. What was it you did? IxK>k it through, and see what work you did there
that morning when you reassembled at 8 o'colck; did you fill in the statement;
is that what you mean? — A. I think we did.
Q. Did you sign them before you filled them in. or afterwards? — A. I think
we must liave signed them before.
Q. You signed the certificate there before you filled it in? — A. Yes, sir.
Q. What did you fill in, the words and figures both?— A. I think we did.
Q. Where did you get those from ? — ^A. We got them from the tally sheet
Q. You got them from Exhibit 71?— A. I think so.
Q. Now, as I understand it, you came back there about 8 o'clock in the morn-
ing?— ^A. Yes, sir.
Q. From the tally sheet book you made up your statement book? — ^A. Yes, sir.
Q. But the statement book had been signed before? — A. Yes, sir.
Q. Before you knew, of course, what the result of the election was? — ^A. Yes,
sir.
Q. You had signed them up for convenience and filled them in afterwards? —
A. Yes, sir.
Q. As a matter of fact — I will show you a certificate dated November 5. —
A. Yes, sir.
Q. But as a matter of fact the book was not made, really filled in until the
6th? — ^A. You will understand that we were busy during the election and we
put in just as much in this book as we had time to put in on the day of the
election, and the next day we finished what we had not completed the day
before.
Q. About what did you put in the day of the election? — A. I couldn't tell how
much of this was written in on the day of the election, but we put in all we
possibly could.
Q. You couldn't write In the figures until you got them ? — ^A. No, sir ; not until
the ballots were counte<l.
Q. You didn't do that until the next day? — A. We counted the ballots that
night
Q. You could not make that statement book until your tally book was com-
pleted?— ^A. No, sir. •
Q. When you got your tally-siheet book completed that was the time you went
home and went to bed, was it not, and made out your statement book the next
morning? — A. Yes, sir.
Q. I call your attention to the tally-sheet book to Representative In Ck>ngress,
third district, and call your attention to page 12. read the vote for John M. C.
486 CARNEV- VS. SMITH.
Smith and Clniide S. Cnniey. the totals just. — A. Total straight votes for John
M. C. Smith, 29 ; total 8plit votes for John M. C. Smith, 45 ; total of votes re-
ceived for John M. (). Suilth. 74. Clande S. Carney, total straight votes for
Claude S. Carney. 113; total split votes for Claude S. Carney, 36; total votes
received for Claude S. Carney. 149.
Q. Claude S. Carney received T.'S plurality over John M. C. Smith? — ^A. Yes,
sir.
Q. Now. what were those tallies and figures, just take this tally-sheet book
and tell me what the tallies were made with, a pen or iiencll? — \. With a
pencil.
Q. Also the straight votes and split votes and total votes, what were they
made with? — A. With a i>encil. too.
Q. Does that tally-sheet book show where the 45 si^llt votes for John M. C.
Smith came from? Are there 45 tallies op{K)site his name? — A. Yes. sir.
Q. Claude S. Carney, he received 36 si)Iit votes; are there 36 tallies there?—
A. Yes, sir.
Q. The city clerk didn't fix up that book with the "add" and "deduct"
system? — A. No, sir.
Q. This tally-sheet book, iilxhibit 71. the straight votes" are in one coluiuu
and the si>lit votes in another? — A. Y>s. sir.
Q. And the tallies themselves show how many 8i»llt votes there were?— A.
Tes. Hir.
Q. This poll book. Exhibit 72. shows the affiibivits yon niade that day, I mean
the board? — A. Y'es, sir.
Q. Which clerk made that, can you tell? — A. Mr. Shields.
Q. Now, who ])uriH)rts to have sworn the lnsi)ectors of election there?— A.
Walter M. Watson.
Q. Does that page show in what character he swore them in, whether as
notary public, Justice of the peace, or inspector, or suiiervlsor? Is there any
character of office after his name? — A. No, sir.
Q. Turn to the oath of the clerk of election, who apimreatly swore the
clerks? — A. Walter M. Wati»on.
Q. Is there anything to show the character of his office? — ^A. No. sir.
Q. I will show you Exhibit 73, the statement book, and call your attention to
the certificate on the last page. Who signed that? — A. L. J. Shields, Charles P.
Ricker, and Albert H. I^aberteaux.
Q. Your name does not appear there? — ^A. No, sir.
Q. Was Mr. Ricker an inspector? — A. Yes, sir.
Q. Did you have five Inspectors? — A. No, sir.
Q. You were an lnsi)ector? — ^A. Yes, sir; I understand that the clerk of elec-
tion is also an inspector of election; Mr. Ricker and Mr. Shields acted as
clerks.
Q. What office does Mr. Riker hold in the city?— A. He was elected by the
electors present that morning.
Q. For what? — A. He was elected by the council. Mr. Shields was.
Q. To what? — A. To act as inspector, and Mr. Riker was elected on the moni-
ing of the 5th by those present.
Q. Mr. Shields was elected by the council to act as what? — A. Inqiector.
Q. Mr. Riker was elected by the bystanders for what? — ^A. As an inspector of
election.
Q. We will come down to Albert L. Laberteaux. — ^A. Yes, sir.
Q. What office does he hold? — A. Alderman.
Q. Then Frank L. Simeon? — ^A. He was alderman.
Q. You really had five men as inspectors? — ^A. Yes, sir.
Q. You simply inadvertently did not sign that? — ^A. There Is no line for any
further names.
Q. Do you rememl)er why you didn't? — A. No. sir.
Q. You virtually had five insjiectors? — A. Yes, sir.
Cross-examination by Mr. AnAMs:
Q. Some of the inspectors acted as clerks? — A. Yes, sir.
Q. This Mr. Nelson, what was he? — ^A. A justice of .the peace.
Q. Now, when you got through on the night of the 5th your tally-sheet books
were complete? — ^A. Y'es, sir.
Q. You had got done with the tallying? — A. Yes, sir.
Q. And. found out how many straight votes and how many split votes ana
the total votes and announced It publicly? — A. Yes, sir.
CABNBY VS. SMITH. 487
Q. Whatever each man received was announced publicly when you got
through? — ^A. Yes. sir.
Q. Ton say the tally-sheet book, with all the other books, were put in the
ballot box and locked up and a seal put on It? — ^A. Yes, sir.
Q. And took the box over to the council room? — A. Yes, sir.
Q. So when you got through there that night, before you quit the voting
place, you knew Just how many votes each man had received; you had it on
record In that tnlly-sheet book? — A. Yes, sir.
Q. The next morning when you came back you took this same tally-sheet
book out of the ballot box, I understood you to say? — ^A. Yes, sir.
Q. From the tally-sheet book from which you had determined the vote for
each candidate the day before, the same tally-sheet book you had put in the
ballot box and locked up and sealed in there, you put the figures on this state-
ment book? — ^A. Yes, sir.
Q. What do you say as to whether these figures in the statement books
which have been shown you correctly show the votes received for the several
candidates there at that election of November 5. 1912? — A. I think they do.
Q. With reference to the office of Rei)resentative in Congress, John M. C.
Smith and Claude S. Carney, what do you say as to whether the figures you
read off the statement book correctly show the votes received by Claude S.
Carney and John M. C. Smith, respectively, straights and splits at the Novem-
ber 5, "^1912, election?— A. I think they do.
Redirect examination by Mr. Frankhauseb:
Q. I will ask you what your politics are? — A. I am a Democrat
Q. Mr. Culver, was he a Democrat? — ^A. Yes, sir.
Q. Mr. Bemer a Democrat? — A. No, sir,
Q. What Is he? — ^A. Progressive Republican.
Q. The city clerk is what? — A. A Democrat.
Q. Out of the four witnesses we have had from Albion none are at present
Republicans as you understand it? — A. Mr. Bemer, I believe, at that lime was
acting in the capacity of a Republican.
Q. You 841 y he is a Progressive now? — ^A. Yes, sir.
Q. We have had no witnesses here from Albion to-day who is a Republican
at the present time? — ^A. No, -sir. .
Q. Three of them are Democrats? — A. Yes, sir.
Recross^xa mi nation by Mr. Adams:
Q. Mr. Laberteaux, was he a Republican or a Democrat? — A. He is a Re-
publican.
Q. This man Loud, is he a Democrat or a Republican? — A. A Republican.
Q. This man Conrad, what is he? — A. A Republican.
Q. This man Knowlln? — ^A. He Is a Democrat.
Q. And Baker? — A. A Democrat.
Q. Mr. Keck? — A. He was a Republican.
Q. George R. Carver, what is he? — A. A Democrat.
Q. M. D. Weeks?— A. A Republican.
Q. Weeks and Keck, did they fill in this statement book? — A. Yes, sir.
Q. F. J J. SmPh, what was his politics? — ^A. A Democrat, I think.
Q. Mr. W^eeks and Mr. Keck, both Republicans, filled in this statement
book? — A. Yes, sir.
Redirect examination by Mr. Frankhausrr:
Q. These other name» that Judge Adams read to you have not been here as
witnesses to-day? — A. No. sir.
Mr. Adams. The witness we agreed to take up without notice T understand
you do not desire to call.
Mr. Pbankhauser. No; we do not desire to call him.
April S, 1913.
JAMBS B. CHASE, being first duly sworn to tell the truth, the whole truth,
and nothing but the truth, testified in behalf of the contestee as follows :
Direct examination by Mr. Maynard:
Q. Mr. Chase, where do you reside? — A. Kalamazoo, Mich.
Q. What Is your age?— A. Forty.
488 OABNEY VS. SMITH.
Q. What Is your occiipatiou? — A. I am employed by the Harrow Spring Co.
Q. Were you present at the general election held on the 5th day of November,
1912, In the seventh precinct of the city of Kalamazoo. Kalamazoo County,
Mich.?— A. Yes, sir.
Q. Did you hold any official position with the board of election inspectoraV—
A. I was chairman.
Q. What office do you hold, if any, in the city? — A. Nothing only deputy
sheriff, that is all.
Q. Were you there when the board was organized on that elec*tion day?—
A. Yes, sir.
Q. Did you take the constitutional oath of office? — ^A. Yes. sir.
Q. How long were you present at the polls that day? — A. Well, I think from
6.30 a. ni. until 2 a. m. the next morning. I w*ouldn't say eitactly, but
thereabouts.
Q. Were you present all day? — A. Yes, sir.
Q. Did you leave the jwlls at all? — A. Why, do you mean the room?
Q. The room — the polling room? — A. Yes, sir; I left tliat; was down to the
lavatory |)erhni)8 half a dozen times.
Q. Did you go to your meals that day? — ^A. No, sir; the meals were served
there.
Q. When did the polls close that day? — ^A. At 5 o'clock.
Q. Did you begin counting the ballots immediately? — A. Yes, sir.
Q. How long were you engaged in that work? — A. Well, from 5 o'clock until
somewhere in the neighborhood of 2 o'clock the next a. m. ; I wouldn't say
exactly. We stopped for supper.
Q. Where did you have your supjier? — ^A. Right there in the same room where
the clerks were located.
Q. How many were engaged as lnsi)ectors of the election? — A. I am not posi-
tive, but I think eight. There were two door tenders or gatekeepers, but I
couldn't say exactly ; I think eight.
Q. In all?— A. Yes, sir.
Q. What i)art did you take? — A. I received the ballots.
Q. Did anyone initial the ballots? — A. Yes. sir.
Q. All of them?— A. Yes, sir.
Q. What was the railing surrounding that booth? — A. The railing that sur-
rounded the booths?
Q. Yes; what was It? — A. Tliere was no railing at all. The l)ooths had
doors. We were in a separate room from where the booths were.
Q. You were in the room where they were initialing? — ^A. No, sir; a separate
room.
Q. Could you see the booths from where you were? — A. Not without getting
up from my chair. Some of us could. The man that gave the ballots out
could, but tiie rest of them could not without getting up off their chairs.
Q. How did they see them, through the door? — A. Through the window-
practically a door — ^a half window.
Q. When you gave the ballots to the voter where did he go? — A. I didn't give
the ballots to the voter. The man who did he went in the booth and came oat
and delivered It to me.
Q. By whom was the ballots delivered to the voters?- A. I think W. E. Geary-
Q. Did anyone else receive ballots there that day? — A. Only during meal
hours.
Q. Who did?— A. I couldn't say. We all took turns at the box.
Q. The whole eight of you? — A. Yes, sir.
Q. Was there anybody in that booth that day aside fix)m the inspectors?—
A. Well, yes; the city clerk was in there, and the city attorney was in there two
or three different times.
Mr. Adams. I object to that as lncomi)etent. Irrelevant, and immaterial, there
being no allegation of that kind In the cH)ntestee's answ^er that would warrant
the Intrmiuctlon of any such testimony under the issue.
A. (Continuing.) Tliere were several there. I couldn't say just who they
were now. but different ones came into the back door. There is a front aud a
rear door to this precinct. 1 couldn't my now, but several different ones looking
after their candidates there, who had votetl and who had not.
Q. There was nothing to hinder their coming right in?- A. No, sir; the doors
were not locked.
Q. Do you know of anyobdy aside from the inspectors who handled ballots?—
A. No, sir; I do not; not at that election.
GABKBY VS. SMITH. 489
Q. During the day? — ^A. Not at that election.
Q. Do yon know a woman named Miss Marsh? — ^A. Yes, sir.
Q. Was not she present and didn't she hand out ballots? — ^A. I may be mis-
taken, but it seems to me she was there in the spring but not in the fall — she
was there in the fall, I think.
Q. At the November election? — A. Yes, sir; that is when she was there, and
also Mrs. Oldfleld.
Q. They were handing out ballots to the voters in that precinct, were they
act?
Mr. Adams. I object to that as leading.
A. I think — I am not positive — I think that Miss Marsh and Mrs. Oldfleld
did fold ballots two or three different times and did hand them out for Mr.
Geary.
Q. Was he an inspector? — ^A. He was the man that gave out the ballots;
yes, sir.
Q. You say that you finished counting along about 2 o'clock in the morning? —
A About that time; yes, sir.
Q. As near as you can tell? — ^A. As near as I can tell ; yes, sir.
Q. When did you commence making out the returns, after you commenced
connting the ballots? — ^A. Yes, sir; we couldn't make them out before.
Q. Did you adjourn before they were made out?
Mr. Adaks. We object to that as incompetent, irrelevant, and immaterial,
there being no such an allegation in the answer.
A. We made them out right then and there; as soon as we finished counting
we made out our report.
Q. The whole eight of you signed this? — ^A. I think so; yes, sir.
Mr. Adams. We object to the question as incompetent and not the proper or
best evidence; the records or returns will show who signed them and can not
be shown by pnrole.
Q. Witness, during the election that day, do you know of any voters who
asked for assistance to have their ballots marked? — ^A. Do you mean by name?
Q. No. — ^A. I remember of two or three, I will not say positively which.
Q. Do you remember of any more than that? — A. No, sir; I do not.
Q. Did they receive assistance? — ^A. Yes, sir.
Q. In marking their ballots? — A. Yes, sir.
Q. Who assisted them?— A. I think W. E. Geary did and B. O. Bush did,
and it might be possible J. E. Walton.
Q. Was he another of the inspectors? — A. Yes, sir.
Q. Were there any challengers from the parties in this precinct? — ^A. If there
were I didn't hear of any.
Q. No challengers for either of the parties? — A. Not that I know of; no, sir.
They didn't make themselves known If they were there.
Q. Did you henr any oath administered to any voter before receiving
assistance in marking his ballot that he was unable to read the English lan-
guage or incompetent to mark his own ballot? — ^A. No, sir; I did not.
Q. Did you hear any oath administered to any voter that day previous to
receiving his ticket? — A. Only over that he was unable to register or some-
thing like that ; that is all.
Q. In regard to his registration? — A. Yes, sir; entirely as to his registration.
Q. That is the only oath you heard administered? — A. That is all I remem-
ber of.
Cross-examination by Mr. Adams :
Q. Who applied for instructions that day?— A. I don't remember.
Q. How do you remember they did?— A. The people walked in.
Q. If you can remember two or three came in, tell us who they were.— A. I
can't remember the names.
Q. Give us the name of one. — ^A. I can't.
Q. You couldn't name one? — A. No, sir.
Q. Not a single one? — ^A. No. sir.
Q. There was not more than one, as a matter of fact, came in there that
day? — A. I said two or three.
Q. There was not, as a matter of fact, more than one came In there for in-
structions that day? — A. I said I didn't know; I said I didn't know, there
might have been two or three.
Q. 'Was it more than one? — A. I couldn't say.
Q. You don't know? — ^A. No, sir.
490 CABNEY VS. SMITH.
Q. Was there not one man who came in and applied for Instructions, and was
not that J. C. Smith? — A. I can't remember the names.
Q. A blind man? — A. I couldn*t say.
Q. You don't know whether they were blind, any of them who did come in,
if more than one came in or not, do you? — A. I know there were two or three:
I couldn't say positively.
Q. You can't tell the name of a single one? — A. No, sir.
Q. What kind of looking men were they? — A. I couldn't say.
Q. You can't remember that? — A. No, sir.
Q. What kind of clothes did any one of them have? — ^^V. I couldn't say.
Q. What kind of hats?— A. I couldn't say.
Q. What kind of a looking man was any one of those two or three that came
in there and applied for instructions? — A. I couldn't say.
Q. You don*t know where they liv«? — A. No, sir.
Q. Did y^n rrvr see them before? — A. Possibly.
Q. Well, did you?— A. I don't know.
Q. I don't care about " possibly; " did you? — A. I don't know.
Q. Have you ever seen either of them since? — A. I don't know as to that.
Q. You were receiving ballots? — A. Yes, sir.
Q. You say that B. O. Bush and W. B. Geary went in the booth with the
men? — A. Or Mr. Walton; one or the other.
Q. What time in the day did any of those men come in for instructions? — \.
I couldn't say as to that.
Q. You don't know? — A. I couldn't say as to that.
Q. In the morning? — A. I don't know.
Q. In the afternoon? — A. I don't know.
Q. After 5 o'clock? — A. Not after 5 o'clock.
Q. Did they come in after 5 o'clock for instructions? — A. The polls were
closed at 5 o'clock.
Q. Did they?— A. No. sir.
Q. Were they w^hlte or black? — ^A. I couldn't say.
Q. Can you give a description of anyone you saw in there that day who
applied for instructions? — A. I told you no, I could not.
Q. Any sort of a description? — A. I told you no, I could not
Q. You can't tell whether they were colored men or white men? — ^A. No. sir;
nor blind or deaf.
Q. They might all have been blind as far as you know? — ^A. No, rir.
Q. How do you know, if you don't know who they were or how they were
dressed or who they were, how can you tell whether they were blind or not?—
A. I say I don't remember.
Q. I say you can't say now whether they were blind or not? — A. No, sir; I
can't.
Q. They may all have been blind? — A. No. sir.
Q. What do you mean? — A. I remember of their being there.
Q. We are talking about those you have stated came in and applied for In-
structions.— A. They may all have been blind or deaf, for all I know.
Q. You didn't have anything to do with giving them Instructions? — ^A. No,
sir; not a thing.
Q. You understand that if a man is physically disabled that he didn't have to
have an oath administered to him? — A. No, sir; I did not.
Q. You didn't know that?— A. No, sir.
Q. You were chairman of the board over there? — A. Yes, sir.
Q. And you didn't understand that to be the law? — ^A. No. sir.
Q. Didn't you as an insr)ector of the election look up the law a little before
you began to act on the board? — A. When we have occasion to; yes, sir.
Q. Did you have occasion to do it before you began to act? — ^A. There were
older men there than I was, and I took their word for it
Q. You said you were chairman? — A. Yes, sir.
Q. Who electetl you chairman? — A. Why, through Mr. Martin, the aldernaan
of the ward.
Q. The alderman of the ward? — A. Yes, sir.
Q. Was he on the board? — A. No. sir.
Q. He made you chairman? — A. Yes. sir; I went to the city clerk and was
sworn in.
Q. Where were you sworn In? — A. At the city clerk's office.
Q. You didn't know, and don't know now, do you, what the law was relative
to the giving of Instructions to people who came to the voting place that elec-
tion day to vote, did you? — A. No, sir; I don't pretend to know anything about it.
CABKEY VS. SMITH. 491
Q. You were a Republican November 5. 1912? — A. Did I vote on the Repub-
llcan ticket?
Q. You were a Republican in politics? — A. Yes, sir.
Q. Mr. Martin was a Republican? — A. Yes, sir.
Q. You said there were eight inspectors? — ^A. Eight altogether, with the gate-
keepers or doorkeepers.
Q. How many inspectors did you have? — A. I think six in the room.
Q. You don't mean they were all insiiectors, do you? — A. No, sir; clerks, some
of them ; I will not say whether three or four ; I don't know.
Q. Three or four Inspectors? — A. Yes, sir; I don't know.
Q. The rest were clerks and gatekeepers? — ^A. There were eight employed, I
think.
Q. That election was conducted in a fair manner that day? — A. As far as I
know.
Q. J. B. Walton, did he act as clerk or inspector that day? — A. I think he did ;
I will not swear to it; I think he did.
Q. You stated that Miss Marsh was there and Mrs. Oldfield? — A. I didn't
say Miss Marsh; it was either in the spring election or fall; I don't remember
which.
Q. You are not sure about that? — A. No, sir.
Q. You are not sure that either of those Ladles were there at the November
5, 1912. election? — A. No, sir; I den't know that; I may be mixed up in the
spring; I worked tl*ere several times; I don't remember.
Q. Yon say there were no challengers there? — A. Not that I know of; no, sir.
If they were they didn't make themselves known.
Q. Did the Republican Party have any challengers In there? — A. Not that I
know of.
Q. Were not those fellows who came in there occasionally through tlint out-
side door to see how things were going? — A. I don't know; they may have been ;
but they didn't make themselves known as challengers.
Q. You knew at the time who they were that came in? — A, Yes, sir; Demo-
crats as well as Republicans and Progressives.
Q. Representatives of all the parties were present? — A. Yes, sir.
Q. They didn't take any part in tlie conduct of the election? — A. No. sir; not
at all.
Q. They had nothing to do with the ballots received or handing them out or
marking* them? — A. No, sir.
Q. As far as you know, those who did come in there, aside from those who
were on your board, were challengers for some of the political parties? — A.
They may have been, for all I know.
Q? The Progressive Party had a ticket in the field at that election? — A.
Yes, sir.
Q. And the Socialist had? — ^A. Yes, sir.
Q. And the Democrats had a ticket?— A. Yes, sir.
Q. And the Republicans?— A. Yes. sir.
Q. And the Prohibitionists? — A. I can't say whether they had a full ticket
or not.
Q. And the Socialist I^abor? — A. Yes, sir.
Q. There were six or seven political parties represented on the ballot that
was voted there that day at that election on November 5, 1912?— A. Yes, sir.
Q. As far as you know, those men who en me in there may have been chal-
lengers?— ^A. In the rear door?
Q. Yes, sir; of some one or more of those political parties? — A. They may
have been, for all I know; they didn't make themselves known in any way what
they wanted only to ask
Q. None of them took any part in the election?— A- No. sir; none whatever.
Redirect examination by Mr. Maynakd:
Q. You don't know that they were challengers for either of the parties,
do you? — A. No, sir.
Q. You say they came in there; what did they do when they came in? — A.
They walked in and asked — I can't tell you what his name is— who had voted,
if this man had voted, and they looked it up and said " No," and he would put
that on n piece of paper and go out. They might have been challengers; I don't
know.
Q. Do you remember whether the woman-suffrage question was n\) at the
last November election or not?— A. No, sir; I do not ; I don't remember whether
in the spring or in the fall.
492 CABNET VS. SMITH.
Q. Now, at the time that Mrs. Old field and Miss Marsh were there, was that
the election nt which the question of woman suffrage was submitted? — A.
Yes, sir; certainly, they would not have been there if it hadn't been.
Recross-examination by Mr. Abahs:
Q. Was this Miss Marsh or Mrs. Marsh? — A. I don*t know whether Miss
or Mrs.
Q. She is a teacher at the normal school? — A. I don*t know as to that.
Q. You know her? — A. I have heard of her; I don*t know whether Mrs. or
Miss.
Q. It was Mrs. or Miss Marsh, who was connected with the normal school?—
A. I think so.
Q. Who was Mrs. Oldfield?— A. The wife of Mr. Oldfleld, of Williams & Old-
field.
Q. An estimable and reputable lady ? — ^A. As far as I know ; yes, sir.
Q. John M. G. Smith had somebody up there around the polls working for
him? — ^A. I couldn't say.
Q. Don't you know he had? — ^A. No, sir; I couldn*t say.
Q. Who came to see you atK>ut what you might know about this election prior
to to-day? — ^A. No one came to see me.
Q. Were you not subpcenaed? — ^A. Mr. Shields subpcenaed me.
Q. Dir Fred Stanley come and interview you? — ^A. No; he sent for me.
Q. Did you go up and see him?— A. Yes, sir.
Q. You saw him at his office? — ^A. Yes, sir.
Q. Mr. Stanley is a young Republican lawyer in this city? — A. I can't say
whether he is a Republican or not
Q. Don't you know he is? — ^A. No, sir ; I do not.
Q. He was a candidate on the Republican ticket last fall? — ^A, He may have
been; I don't know; he wrote me a letter; I don't know honestly whether he
was or not.
Q. He ran for circuit court commissioner at the November 5, 1912, election?— -
A. If that is true, he did ; I don't know.
Q. Is Fred Stanley the only man you have talked with about this case, since
this controversy, I mean, between Mr. Carney and Mr. Smith, since November
li election, 1912? — ^A. I think so, outside of Mr. Carney, last evening, or Sunday
evening, I should say.
Q. Mr. Carney didn't talk to you anything atK>ut the facts in this case, did
lie; you asked him; you wondered what they wanted of you up to Fred Stan-
ley's office? — ^A. No, sir; I didn't say anything about Stanley's office; I said I
was called up; he called me up and asked me what I knew, and I made a
sworn statement or made a statement, and he asked me whether I would swear
to it, and I said yes.
Q. That is what you and Stanley talked? — ^A. Yes, sir. Then Mr. Carney
asked me, " Did I carry that precinct? " I said, " I think you did."
Q. Have you a copy of that statement you made? — ^A. No, sir.
Q. You signed something up there and swore to it, did you? — ^A. Yes, sir.
Mr. Adams. You haven't a copy of that, have you. gentlemen?
Mr. Maynard. I have not.
Q. Is that the only sworn statement you have made about this election, the
one you made for Mr. Stanley? — A. Yes, sir.
Q. When were you up to Mr. -Stanley's office? — A. I couldn't say.
Q. How long ago? — A. Oh, I should say three mouths, possibly longer.
Q. About three months ago? — A. Maybe longer and maybe less than that; I
clon't remember exactly.
Q. That is the only time you have been up there to make a statement to Mr.
Stanley?— A. Yes, sir.
Q. Concerning this matter? — A. Yes, sir; I think it is.
p. About three months ago or longer? — A. Yes; and it might be less than tliat
'Q. If any less than that, how much less? — A. I don't know.
Q. You can't remember? — A. No, sir.
Q. Your memory isn't very good, then? — ^A. Oh, sometimes; I don't know
anything about that.
W. M. HUNTI.KY, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestee, as follows :
Direct examination by Mr. Maynabd:
Q. Mr. Huntley, where do you reside? — A. In Cooper.
Q. The township of Cooper, Kalamazoo County. Mich.? — ^A. Yes, sir.
CARNEY VS. SMITH. 49ft
Q. What iB your age?— A. I am 38.
Q. What is your occupation? — ^A. I am a farmer.
Q. Do you hold any official position in the township?— A. I did last year.
Q. What was it?— A. Clerk.
Q. Were you present at the election polls, the voting place at the genera)
election held on the 5th day of November, A. D. 1912, in the township of Cooper^
Kalamazoo County, Mich.? — A. Yes, sir.
Q. How many inspectors of election were there? — ^A. I think four; I am not
sure.
Q. Do you remember who they were? — A. J. B. Crane, J. W. Huntley, and
John Van Alstrum.
Q. Mr. Crane, what position did he hold? — A. Supervisor.
Q. Mr. Huntley? — ^A. Justice of the peace.
Q. Mr. Van Alstrum? — A. Justice of the peace.
Q. Was there another?— A. I think R. S. Wilcox.
Q. What was he? — ^A. Justice of the peace.
Q. Did you act as clerk of that election? — ^A. Yes, sir.
Q. Anyone else with you? — A. Mr. Seaman.
Q. You had two clerks, yourself and Mr. Seaman? — A. Yes, sir.
Q. And four inspectors? — A. Yes, sir.
Q. You were all behind the railing, were you? — A. Yes, sir.
Q. Did you have anybody else there? — A. No, sir.
Q. Now, witness, did anybody initial the ballots that day? — A. Yes. sir; Mr.
Crane.
Q. The supervisor? — ^A. Yes, sir.
Q. Did he initial them all?— A. I think so; I don't know; I didn't see them alL
Q. Did you hear anyone apply for assistance there in that precinct, for assist-
ance in marking their ballots? — A. I don't think so; no, sir.
Q. Were you there all day? — A. Yes, sir.
Q. Did you see anyone assist any person in marking their ballot? — A. No,
Bir; I did not.
Q. Did you see a grandson come in with his grandfather and go into the
booth with him and mark his ballot for him? — A. I think it was Mr. Thayer,
I am not sure. He couldn't walk very well, and I think his nephew went
through with him.
Q. His relative went with him? — ^A. Yes, sir.
Q. Do you know whether anyone went in the booth with him? — ^A. No, filr;
I dont' know about that either ; I am not sure whether he did or not or he went
ill alone.
Q. Was your board required to go before the board of county canvassers
and recount the ballots from that township? — ^A. Yes, sir.
Q. Did you go with them? — A. Yes, sir.
Q. Did you see those ballots when they were recounted here? — ^A. Yes, sir.
Q. It is true that those ballots were not initialed?
Mr. AOAMs. Objected to as incompetent and immaterial; they can not show
by parol evidence the condition of those ballots in the ballot box from anything
that was gathered there when they were or)ened up, and I object to it further
as nn attempt to cross-examine their own witness, and there is no mention
made of it in the notice, and the only question In the notice that they are
entitled to go into here is the question of instruction to voters, and I object to
their going Into any other subject or ask any questions bearing upon any other
subject as incomi)etent and immaterial and not covered by the pleadings.
(Question read.)
A. I think they were.
Cross-examination by Mr. Adams :
Q. Mr. Huntley, as I understood you to say, you don't know whe'her Mr.
Thayer — ^young Thayer— went through with his father?— A. With his grand-
father.
Q. You don't know whether he did or not? — A. I think he did.
Q. You knew the grandfather? — ^A. Yes, sir.
Q. How old a man was he? — A. About 80, I think, or more.
Q. Was he physically feeble; noticeably so? — A. Yes, sir.
Q. W^hiit seemed to be observable: what did you observe there that day about
his condition? — A. He couldn't walk very well.
Mr. Maynard. I object to that as incompetent and immaterial ; there is noth-
ing in the law that permits an out.sider to go in the booth and mark a ballot
without the presence of an inspector.
494 GABNEY VS. SBCITH.
Q. When Mr. Thayer was in the booth, didn*t a couple of the inspectors of
your board go to the booth when Mr. Thayer was In there? — A. I couldn*t aay
'Whether they did or not.
Q. They may have done it? — ^A. Yes, sir.
Q. While the old gentleman Thayer was in there marking his ballot it is
t)088ible that a couple of the insi)ector8 of your board went to the booth where
Mr. Thayer was murlcing his ballot? — ^A. I will not say; I couldn't see through
the booth.
Q. Didn't the boy stay on the outside of the booth ; Just take his father and
help him to the booth? — A. I don't know about that, either.
Q. You dont' know whether the boy went into the booth or not, do you?— A
I saw him go out through the booth with him ; that is all ; through the back
side.
Q. When the father marked the ballot, the boy might have been outside of
the booth on the other side? — ^A. Yes, sir; he may have been; I don't know.
WILLIAM W. ALLEN, being first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified on behalf of the contestee as
follows :
Direct examination by Mr. Matnard:
Q. Mr. Allen, where do you reside? — A. Texas Township, this county.
Q. What is your age? — A. I am 60 years old.
Q. What is your occupation? — A. I am a farmer.
Q. Were you present at the general election held In the township of Texas,
county of Kalamazoo, Mich., on the 5th day of November, A. D. 1912? — A. Yes,
sir.
Q. Did you have an ofllce on the board of election Inspectors? — ^A. Yes, sir.
Q. What was it? — A. I was one of the inspectors.
Q. What township oflice do you hold? — A. Justice of the peace.
Q. Who were the other Inspectors? — A. Charles Ray.
i^. What was he? — A. He was also a Justice of the peace.
Q. Who else? — A. In the caiwcity of inspector or on the board?
Q. Was the 8U|)ervi8or there? — A. Yep, sir; he was the chairman.
Q. What was his name? — A. William Campbell.
Q. Any other inspector of election? — A. Frank Harrison was one of the
^clerks.
Q. Who was the township clerk? — A. I^wis Burdick, Jr.
Q. What time did you opcMi the polls? — A. Very close to 7 o'clock.
Q. Were you at the iwlls all day? — A. Yes, sir; I was there.
Q. Whnt time did you close the iwlla? — A. 1 think not far from 5 o'clock.
Q. Did you leave the polls at all?-T-A. For dinner.
Q. Did the board adjourn? — A. They adjourned for one hour, I think, for
dinner.
Q. Where did you have your dinner? — A. In the basement of the church.
Q. How far from there? — A. Oh. about 6 or 8 rods.
Q. Did you all go together? — A. Yes, sir.
Q. What did you do with the election books while you went to dinner? —
A. The box with the ballots was sealed, and there was a man left in charge
of the town hall.
Q. Who was he? — A. I couldn't tell you who it was.
Q. He was not one of the board? — A. I think not; I think not one of the
election board.
Q. You jJTot some other man? — A. Well, I 8iM>ke to Mr. Campbell about it
if there was anyone there, and he said there was.
Q. You don't remember yourself who it was? — A. No, sir; I don't remember
who he wjiH.
Q. What djd you do with the ballots?— A. They were left there in the voting
precinct.
Q. On the table? — A. No, sir; they wore — th«t were not used, do you mean?
Q. Yes. We are talking nl>out the noon adjournment now. — A. I think they
were left on the table. I will not sny for certain about that, but I think so.
Q. What time did your board get back? — A. A>ry close to 1 o'clock.
Q. What did you do then?
Mr. Adams. I object to this line of testimony as inadmissible under the
answer of the contestee and as Incompetent and irrelevant, and to any and all
testimony uiwn any other subject save that of instiuctions claimed to have
GABKEY VS. SMITH. 495
been given to voters who apiHied for assistance, that bein^r the only subject
covered by the answer, and I object, therefore, to any testimony on any other
subject, as far as the Kalamazoo County precincts are concerned, as incom-
petent, irrelevant, and immaterial and inadmissible.
Mr. Maynard. I wish to state the following for the record: When the con-
testant began taking his testimony a lilce question came up relating to evidence
not included in the notice of contest, and objection was made by the contestee
that it was immaterial for the reason that no notice was given of any such
matter in the notice of contest; and Mr. Adams stated: "We will give you
notice now that any facts that develop in the taking of this testimony or any
ether testimony on behalf of the contestant that we shall apply for an amend-
ment to the petition. You can therefore prepare yourselves to meet the facts
presented." We objected to the taking of the testimony as entirely outside
of the notice of contest. Now we propound the same questions, and they are
objected to. I stated that I understood and it was tlie understanding of the
contestee that the parties were strictly limited by the statute and the rules gov-
erning such cases, and in answer thereto that neither party had a right to
amend; but the contestee, realizing that he is liable to be mistaken as to the
admission of testimony not covered by the contest made here and that any
irregularities, errors, or defects in the election retuins and records affecting
the election which is contested, wish to say that any errors, defects, mistakes,
or irregularities in the returns and records or any act of any election board
or any officer that has been shown by the contestant to invalidate the election
of the contestee, the objection affecting any election pret^inct on some ground
of error, defects, mistakes, irregularities, or action of the officers existing,
whereby the votes in such precinct, where the contestant received a plurality,
should be rejected. We therefore give the contestant notice that any new facts
that develop in the taking of this testimony or any other testimony in behalf
of the contestee that we shall apply for an amendment to the answer to the
notice of contest You can therefore prepare to meet the facts presented that
are mentioned or set forth in the answer to the notice of contest. The con-
testee only asks fair play and at the same time that the same rules may be
applied to his proofs as to the proofs of the contestant, as to facts not covered
by the answer, as to the facts offered by the contestant not covered by the
notice of contest and of which the contestee was not apprised until he heard
the testimony, and, of course, could not have met it by his answer.
Q. What time did you close the iwlls? — ^A. I think about 5 o'clock.
Q. Did you go to supper? — A. Yes, sir.
Q. Before or after the polls closed?
Mr. Abams. If It can be understood that my objection applies to all the testi-
mony that is not covered by your answer I will not make the specific objections.
Mr. Maynard. Any objections you may make to the testimony I am intro-
ducing which is not covered by the answer is objected to on the ground that it
is incompetent, irrelevant, and immaterial may apply to all the testimony here
in Kalamazoo under this notice.
Q. Before or after the polls closed? — A. We went to supper after the polls
were closed.
Q. Before you had made your count? — ^A. Yes, sir.
Q. How far had you proceeded before you went to supper? — A. I couldn't
tell you exactly how far.
Q. You had opened up the ballot box and taken out the ballots? — A. I could
not say positively about that, I think so, but I would not say iwsitlvely about
that.
Q. When you went to supper who went? — A. I think the board all went to-
gether.
Q. All went together?— A. Yes, sir.
Q. When you went out that time what did you do with the polling place? —
A. If I remember right about that after the ballot box was opened It was re-
sealed, but I am not certain. At least it was sealed when we left, behind our
niillng. I speak more from our general rule than my specific memory in this
particular case or instance; we have been very careful about keeping the
ballot box sealed when we left at all.
Q. When you came back from supper did you proceed with the count? — ^A.
Yes, sir.
Q. When did you get through?— A. Well. I think some time Just a little be-
fore midnight, if I remember rightly; .something not far from 11 o'clock, pos-
496 CARNEY VS. SiaTH.
Bibly a little later than that ; that is including signing and bringing up the
records.
Q. Did yon make out the records that night? — A. Yes, sir.
Q. While you were there through the day did you see any voters ask for
assiHtance in marking their ballots? — A. I did.
Q. How many? — ^A. Two that I remember distinctly.
Q. No more than two? — A. I think there were more, but I will say two
positively.
Q. Were you acquainted with them? — A. Yes, sir,
Q. Did they receive assistance? — A. Yes, sir; they did.
Q. Who gave them assistance? — ^A. I did.
Q. They were ]ieopIe you knew? — A. Yes, sir.
Q. They were nfflicteil with some infirmity? — A. Mr. Ward was a man who
was mentally defective, was not able to read very much, if any at all.
Q. What was the other? — A. The otlier one was a man I should say between
90 and 100, very comiietent otherwise, but not able to see to read at all.
Q. So he was not able to read? — A. Well, I am quite well acquainted with
him and know that to be a fact.
Q. The other man asFisted, what was there about him? — ^A. Mental weakness
Q. Did you know him? — A. Yes, sir: he lived with me one year.
Q. Yon 8rty there were others received assistance there? — ^A. I think so.
There were one or two more, but I will not say positively.
Q. Those who were assisted by anyone else at other times, did you see any
oath administered to them? — A. No, sir.
(YoHK-examiur.tiou by Mr. Adams:
Q. Were all those who were rendered any assistance there that day in the
matter of voting and marking their ballots there that day noticeably physically
dlS'l)1e<lV — A. Why, it ws very noticeable that one was blind or very nearly so.
Q. Y<»ii knew him to be? — A. Oh. yes.
Q. Now, that was the old gentleman? — A. Yes, sir.
Q. This man Wood was he physically alTected In some way? — A. No, sir; I
think not ; he was quite a rugged fellow.
Q. Did you wee him mark his ballot? — A. Yes. sir; I did.
Q. Did iuiybody else see it when be marked it besides you? — ^A. I think not
.Q Did he njark it himself?— A. Yes, sir.
Q. Wh- t Instructions did you give him? — ^A. He muned the ticket he wanted
to vote, and I simply plrced my finger upon the ticket and says, '*That is the
ticket. Holla, you want to vote."
Q. Did you tell him the ticket he iK>inted out? — A. The one he named I
iwlnted out to him.
Q. Did he vote that ticket?— A. Yes. sir.
Q. Now, did I understand you to say more than those two received assistance
there that d«iy? — A. I will not «iy there were, but my mind is that there were
one or two more, but I couldn't remember distinctly about that.
Q. You don'i want to be understood as testifying that there were more than
those two? — A. No, sir; not positively.
Q. And you don't know but there were? You don't recall any of the circum-
stances about anybody else but those two? — A. Not plainly. Of course I have
a little idea, but then I would not
Q. You may have confused that with some other time possibly? — ^A. With the
spring election.
Q. You stated that your board left the voting place at noon for dinner?—
A. Yes sir.
Q. Where did you go? — A. To the church basement.
Q. How far from the town hall? — A. Six or eight rods.
Q. Did you lock the town hall, when you went away, in which the election
was held? — A. My mind is that there was a gentleman there to look after It.
Q. Who do you think stayed there? — A. I couldn't tell you.
Q. Did all the in8i)ectors of the election go to dinner at the same time?—
A. Yes, sir.
Q. T'hen. you stated, the ballot box was locke<l when you went to dinner.
Was it in a kx'ked and seale<l condition? — A. It was sealed — sealed and locked—
that is, the lid was lockeil ; the slot in the lid where the ballots went tlirough
was sealed.
Q. Then you had a cover over the seal where the ballots went through Into
tlie ballot box? — A. Yes, sir; sealed with pajier.
CAKNEY VS. SMITH. 497
Q. The slot to the ballot box was sealed so nobody could put any ballots In
without breaking that seal? — A. Yes, sir.
Q. When you got back after dinner did you find the ballot box sealed and in
the same condition it was when you went to dinner? — ^A. Yes, sir; it was intact
Q. Did you find any of the ballots missing that had not been TOtedT — ^A. No,
sir.
Q. All the ballots that had been voted were in the ballot box when you left
that election and went to dinner?— A. Yes, sir.
Q. This one opening into the ballot box was sealed up so no more ballots
could be put in without breaking that seal?— A. Yes, sir.
Q. When you got back you found it in the same condition it was when you
went to dinner? — A. Yes, sir.
Q. You went to supper, you say, that same day, your board?— A. Yea, sir.
Q. All go at the same time"? — A. The board, I think, all went at the same
time.
Q. Went to the same place, probably? — ^A. Yes, sir.
Q. Was the election held on the first floor or the second floor of the town
hall?— A. On the first floor; there is but one floor in the hall.
Q. Well, do you remember about what hour you went to supper? — ^A. I think
It was very soon after 5 o*clock.
Q. The polls closed at 5 o'clock? — A. Thereabouts.
Q. The law requires that the polls be closed at 5 o'clock; you observed that
law?— A. I think we did very closely; it might have been a period of a minute
or two or something like that, but very close.
Q. Without oi)ening the ballot box or commencing the count of any ballots
that had been voted you went to supper before you commenced to count? — A.
Yes^ sir; that is my memory about it; I will not swear positively tJiat is the
case, but that is my memory now.
Q. When you went to supper you sealed the ballot box? — A. Yes, sir.
Q. And sealed it so that nothing could be put into it or nothing taken out
without breaking the 8eal?T-A. Yes, sir.
Q. Was it locked in addition to sealing? — ^A. Yes, sir.
Q. Something was put over the slot, the only opening in the ballot box, so that
nothing could be put in or taken out without breaking the seal over the slot? —
A. Yes, sir.
Q. When you got back after supper did you find that ballot box in the same
condition you left it when you went to supper? — ^A. Yes, sir.
Q. It had not been tampered with? — ^A. No, sir.
Q. The seal hadn't been broken? — A. No, sir.
Q. And the ballots that had been voted that day were in there? — ^A. They cer-
tainly must have been.
Q. Did you have more than one ballot box that day for the ballots containing
the ballots which contain^ the names of the different candidates? — ^A. Only one
ballot box.
Q. That ballot box, I assume, contained all of the ballots, all the tickets on
which the different candidates for Representative in Congress were named? — A.
Yes, sir.
Q. At that election there that day did you see anything that in any way
affected the fairness of the election? — ^A. I can't think of anything; it seemed
to be perfectly fair.
Redirect examination by Mr. Maynabd :
Q. It is impossible for you to state now from recollection whether you sealed
that ballot box that time or not? — ^A. I think I am quite positive it was sealed.
Q. You said you didn't know whether you did, but that was your general
practice? — A. That is my memory that we sealed it, and from the general prac-
tice, too.
FRANK A. NEW^ALL. being flrst duly swora to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestee, as follows:
Direct examination by Mr. Maynard :
Q. Where do you reside?— A. In the city of Kalamazoo.
Q. In the city of Kalamazoo, Kalamazoo Ck>unty, Mich.? — A. Yes, sir.
Q. Were you present at the general election held in the second precinct of the
city of Kalamazoo, Kalamazoo County, Mich., on the 5th day of November,
A. D. 1912?— A. Yes. sir; I was.
288—13 32
498 CABNEY VS. SMITH.
Mr. Maynabh. Is it conceded that the following are the charter provisions
of the city of Kulauiazoo relative to ins]»ectors and clerks of elections? —
** Sec. G. The aldermen of each ward shall be inspectors of election for such
ward. The aldermen of each ward shall on or before the Saturday next pre-
ceding any election appoint from the electors of the ward such number of addi-
tional iusix'ctors of ele<.'tion as shall make the number of Inspectors of elec-
tions in any voting precinct equal to the number required by the general
election laws of this State, and the electors so appointed, together with the
aldermen of the ward, shall constitute the board of election inspectors in the
various wards of the city. The inspectors may employ one or more electors
of tlie ward ajs polling clerks, who shall receive such comj)ensation as the city
council may prescribe. In the case of a failure of any inspector to attend or
remain at the )x>ns, or of his disqualification, hi^ place shall at once be filled
by the appointment of soaie elector of the ward, which appointment shall be
made by the remaining lnsi)ector or Inspectors. The alderman whose term of
office soonest expires shall be chairman of the Inspectors, or in his absence or
diailuaUficiition the inspectors shall elect a chairman. Such boards of in-
spectors shall have power to correct at ilie i)olls any clerical errors that may be
ddacovered in the registration.
** Sec. 7. The insj^ectors and clerks of election shall take an oath, to be admin-
istered by any person authorized to administer oaths, to honestly and faithfully
dijicharge their duties as such insiJectors and clerks of election. All elections
in the cU3' sliall be conducted, as near as may be, in manner provided by law
for holding general elections in townships throughout the State, except as
herein otherwise provided, and the inspectors of election shall have the same
powers and authority to pi^serve the purity of election, mflintaln good order.
aad enforce the obedience of their lawful commands during the time of holding
any election, and the canvass of the votes cast thereat, as is now or may hereafter
be given to township boards of election by the general statutes of the State,
and shall perform the same duties as the inspectors of election as township
inspectors of elections."
Mr. Adams. It is stipulatetl that before and during the entire year 1912 that
there were five wards in the city of Kalamazoo and that there were two alder-
men from each ward, and tliat no aldermen were candidates for reelection
and that no aldermen were elected at the November 5, 1J>12. ele<*tion: the elec-
tion for aldermen of the city being fixed by law to occur on the first Monday
of April each year.
Q. Were you one of the inspectors in the sei^ond precinct on that dayV — ^A.
Yes, sir.
Q. Did you go there at the oi)ening of the polls in the morning? — A. Yes, sir.
Q. How long did you stay there? — A. From before 7 o'clock until somewhere
about 2 o*clock.
Q. The following day? — A. The following morning; yes, sir.
Q. Of the 6th?— A. Yes, sir.
Q. Witness, what office do you hold; what part did you |)erform of the
duties? — ^A. I think I was appointed as inspector; that has been the custom
always of the chairman, to furnish the different ones in the position they were
elected to ; I had been holding the position of clerk.
Q. What is that; the \x>\\ book?— A. Yes, sir; it is the tally sheet.
Q. You wrote the names down as they came in? The tally-sheet book is the
book in which you kept the tallies when you came to count up? — ^A. Yes, sir.
Q. The i)oll book is the book in which are kept the names of the voters?— -A.
Yes, sir.
Q. Who gave out the ballots to the voters?— A. Well, that is a hard question
to answer for certain, for sometimes different ones did that.
Q. This particular day do you remember? — ^A. I think it was a man named
Wilklhs handed out some and sometimes a man named Peel handed them out.
Q. Were they inspectors? — A. Yes, sir.
Q. Did you adjourn the polls for dinner? — ^A. No, sir.
Q. At what hour did you close the polls? — A. Five o'clock.
Q. Did the board go for sui)i)erV — A. No, sir; we had supper there.
Q. In the i)recinct? — A. Yes, sir.
Q. Witness, when did you make out your returns? — A. Just as soon as the
votes were all counted.
Q. That same morning? — A. Yes, sir.
Q. That was — were you there throughout the day? — ^A. Ye& sir.
Q. Did you have any suffragettes at the polls? — A. Yes, sir.
CARNEY VS. SMITH. 499
Q. All throughout the day?— A. Yes, sir.
Q. What were they doing?— A. They sat there and sjiw their ballots handed
ouL
Q. Did they hand them outV— A. No, sir.
Q. The suffragettes didn't hand any out?— A. No. sir.
Q. You didn't let them do that?— A. No, sir.
Q, Did you see any party challenger in around behind the booths assisting
voters there that day?— A. I didn't see them assisting anv; I am of the im-
pression there were.
Q. What did they do? Did they go into the booths with the voters?— A. No,
sir; not as far as I know of.
Q. What did you see them do?— A. I didn't see them do anything; I over-
heard it
Q. What did you hear? — A. I heard some one call for instructions and some
gentleman on the back of the booths told them what t& do ; they were perfectly
innocent of what they were doing, and as soon as we beard it we stopped it.
One of the gatekeepers, he said, was giving instructions back theve, and when we
were told of It we stopped it immediatey.
Q. Headed it off, eh? — ^A. Yes, sir; as soon as we knew it.
Q. How long was he back there? — A. It was not to exceetl an hour, anyway.
Q. Was he in any way a member of the board? — A. No, sir.
Q. Did you see any voters there that asked for instructions? — A. I couldn't
say that I did, while it is a very common occurrence to have happen ; there were
quite a number that day; I couldn't siiy who they were; I saw them, but I
didn't give any instructions.
Q. Did you see any man asking for instructions? — A. I didn't do that; I
didn't take particular notice of it.
Cross-examination by Mr. Adams:
Q. On November 5, 1912, that is when you have in mind, you don't recollect
of anybody receiving any instructions from a member of the board? — ^A. I
couldn't tell you a single name.
Q. Do you recall the fact that any instructions were given on that particular
day by any of the board? — ^A. I don't understand that.
Q. Referring to November 5, 1012. is it not a fact that you don't know now
whether or not any instructions were given to any voters there? — A. As long
as I can't tell the names of any of them, I couldn't stiy no; it is a very com-
mon occurrence
Q. I know; but wait a minute, what I want to get at is it a fact that you
have no recollection now of any instructions being given to any voters on the
5th day of Novemljer, 1912 — not what might have been, not some other time,
but that day — you have no recollection of anybody having received any in-
structions?— ^A. No, sir; I couldn't say I do and prove It.
Q. As far as that other circumstance you relate on your direct examination,
you say that somebody told you that — that there was some one doing something
on the otber side of the booths for a little while In the morning — the gate-
keeper?— ^A. YeB, sir.
Q. You wouldn't know of your own knowledge what was being done? — ^A.
No, sir.
Q. Y'ou don't know whether any instructions were, in fact, given to any
voters? — A. No, sir.
Q. Or whether anybody attempted to give anybody, or whether anybody at-
tempted to go in the booths with anybody, with any voter or anything of that
kind, do you of your own knowledge? — A. No, sir; I heard a gatekeeper
Q. I am asking you for your own knowledge; you don't know that anything
was wrong being done there, that anybody was given any instructions, of your
own knowledge? — ^A. No, sir.
Redirect examination by Mr. Maynabd:
Q. Did you hear somebody — you said you couldn't see, but you heard — what
did you hear?
Mr. Adams. Unless he is going to tell what he heard and not what somebody
did. we object to It.
A. I don't recollect what it was; I am not attempting to tell it; our attention
was drawn to it; that is the rea.<?()n we stoppe<l it; I will not attempt to tell
what it was.
500 CARNEY VS. SMITH.
Rocross-exauiluation by Mr. Adams :
Q The gatekeepers there, you had two of them? — ^A. Yes, sir.
Q. One gatekeeper had his gate where the voters came into the voting
place?— A. Yes, sir. ^ .„ . . v
Q. That is the gate that goes in through the railing/— A. Yes, sir.
Q. Another gatekeei)er attended the door or gate where the people exited—
go out? — ^A. Yes, sir.
Q The fellow who on this November 5, 1912, election day where you were
acting as inspector of election was attending the entrance gate, I suppose;
voters comUig in there, sometimes the gatekeei)er would talk to tliem about
various thUigs, not alK)ut election at all; they frequently do?— A. Yes: that
hannens
Q. Do you know anything wrong about the gatekeeper instructing anybody
about matters of election at all?— A, I would be almost positive they did not
Mr. Maynakd. Something took place that caused the gatekeeper to make a
disturbance about it?
A. Yes, sir.
JOHN R. ROCKWELL, being first duly sworn to tell the truth, the whole
truth, and nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Maykabd :
Q. Where do you reside? — A. First precinct, this city.
Q. City of Kalamazoo? — ^A, Yes, sir.
Q. Kalamazoo County, Mich.? — A. Yes, sir.
Q. Were you present at the general election held in the first precinct in the
city of Kalamazoo on the nth day of November, 1912? — A. I was.
Q. Did you have any official connection with the board of inspectors in that
precinct? — ^A. I acted as clerk on that board.
Q. When did you commence work with the board — ^when the polls opened In
the morning? — ^A. Yes, sir.
Q. How long did you continue with them? — A. Until the report was made out
about 2 o'clock the following morning.
Q. Two o'clock on the morning of the Gth? — A. Yes, sir.
Q. Witness, you were present there all day? — A. Yes, sir.
Q. Did you see any voters there applying for assistance? For instructions?—
A. Instructions in regard to what?
Q. In regard to marking their ballots?— A. I can't recollect that I did. I
have worked on the board several times and I have seen things of that kind
and I don't recollect whether at this election anybody called for help or not,
Q. Did you see any suffragettes ai*ound? — A. There were a couple of ladies
in the room.
Q. Were Uiey behind the railing in the voting place? — ^A. They were in the
same room where the booths were.
Q. Did you have a railing surrounding your voting place in that precinct?—
A. No, sir ; the booths were in a room by themselves. The two clerks who kept
the tally book are in the same room and the man who took the ballots and the
two gatekeei>ers. The inspectors handing out the ballots are in a room ad-
Joining.
Q. Not in the same room? — A. No, sir.
Q. They couldn't see each other? — ^A. No, sir.
Q. Where did the voter go when he got his ballot? — A. He came in the room
where the booths were ; the table at which the ballots were handed out was in
the doorway.
Q. Between the two rooms? — A. Yes, sir.
Q. Where was the gatekeeper? — A. He was inside of the room where the
booths were.
Q. W'hat is there to keep the voters from going where the ballots are?—
A. The table at which the ballots are handed out is the same as setting by the
side of that door and in the next room is where the booths are; this is a small
room large enough to hold the table at w^hlch the two clerks sat that kept the
tally books.
Q. Where did the inspector stand to deliver the ballots? — ^A. At that table.
Q. In this room? — A. Yes, sir.
Q. There is no gatekeeper the other side of the table? — A. Both gatekeepers
are in another room.
Q. Did they have any railing around the booths? — ^A. I don't think so.
CARNEY VS. SMITH. 501
Q. They didn't get Into the room where the man delivered the ballots at
all?— A. Yes; they could go through that room where the ballots were handed
out; as the voter receives his ballot he steps through Into the room where the
booths are inside in that same room where he votes.
Q. Where were the women? — ^A. They were in the room where the booths
were.
Q. Where the ballot Is handed to the voter? — A. No; where the booths are.
Q. Where the man went with his ballot when he got It? — A. Yes, sir.
Q. They had an opportunity then to address the voter after he had received
his ballot? — A. They simply had a seat; there was one lady
Q. They had an opportunity, didn't they, to address the voter If they saw fit
after he got his ballot, before he went in the booth? — A. I don't hardly under-
stand your question in regard to that ; there was no lady In the — that is, right
in where the booths were; the lady sat in the same room where the booths were
in. They passed near the same table where the other clerk and I sat and we
were in the room where the booths were, and the ballots were handed out In a
different room just as they came In the room where we were.
Q. Then they came through into your room? — A. Yes, sir.
Q. Your Inspectors at that precinct did not let the ladies have the privilege
of handing out the ballots? — ^A. No, sir.
Q. Or tear off the corners or anything like that? — ^A. No, sir.
Q. Were there any others In the room where this voting was going on who
bad no right there aside from those two women? — ^A. No, sir.
Mr. Adams. I object to that and move to strike out the answer upon the
ground that it assumes something there is no foundation for and as incompetent.
Cross-examination by Mr. Adams:
Q. These women were challengers for the suffragette party? — A. I suppose
they were; they came under the personal care of the board: they sat down
and read magazines all the time they were there.
Q. They were orderly? — A. Yes, sir.
Q. Did you know them? — ^A. I did not.
Q. They didn't take any part In the election at all? — A. No, sir.
Q. Just sat there and watched things and read their magazines? — A. Yew, sir.
Redirect examination by Mr. Maynard :
Q. The Judges suggested to you that the suffnigette party had a right on that
ticket: do you know of any such party? — A. No, sir.
Q. Of any such a political party? — ^A. No, sir.
Q. Did you know of any such political party or were yon informed there
were any challengers there for any such i)olitical party that day? — A. No, sir.
Recroas^xamination by Mr. Adams :
Q. The suffragette question was being voted on that day at that election? —
A. Yes, sir.
Q. On a ballot by itself ?— A. Yes. sir.
Q. Wholly independent of the ballot on which the candidates for the differ-
ent oflSces were l)eing voted for? — ^.V. Yes, sir.
Q. And wholly independent from the ballot on which the i*esi)ectlve can-
didates for Representative in Congress appeared? — A. Yes. sir.
NORBERT WHEELER, being first duly sworn to tell the truth, the whole
truth, and nothing but the truth, testlfle<l In behalf of the contestoe as follows:
Direct examination by Mr. Maynard:
Q. Where do j'ou reside? — A. Kalamazoo, Mich.
Q. Kalamazoo County. Mich.V — A. Yes, sir.
Q. W^hat is your age? — A. I am 27.
Q. What Is your occupation? — A. I am in the i»lunil)ing and heating businesa
Q. Were you present at the general election held in the third precinct of the
city of Kalamazoo. State of Michigan, on the 5th day of November, A. D. 1012? —
A. Yes, sir; the third precinct.
Q. Did you have any official position there that day on that election bojird? —
A. Yes, sir; I was chairman of the board.
Q. Of the inspectors? — A. Chairman of the board.
Q. Were you there from the time the polls oi)ene<l until nli^htV — A. Before
the polls opened and I was there when they closed.
502 CARNEY VS. SMITH.
Q. What time did you get through eouiitingV— A. About 1 o'clock ; that is. the
count, and made out the records the next moniiug.
Q. That day were there any voters who applied for instructions as to mark-
ing their ballots?— A. Yes. sir.
Q. More than one? — ^A. I expect there were.
Q. Several? — A. I expect six or seven.
Q. Did they receive instructions? — A. They called for instructions.
Q. They received instructions from the board, did they? — ^A. Being the
chairman I told the inspectors to take care of them.
Q. They received instructions, did they? — ^A. I don't know; I don't know
about the six or seven; I instructed one myself and another inspector.
Q. Who was he; do you remember? — ^A. Yes, sir.
Q. Who? — A. I know him, but not by name.
Q. W^as there any visible signs of his being unable to mark his ballot?— A.
Yes, sir.
Q. What was it? — A. His eyesight and feebleness.
Q. Was there any others besides that that you assisted? — ^A. No, sir.
Q. Were there others that asked for assistance that were in the same condi-
tion?— A. I couldn't say as to that
Q. Was there any oath administered to any of those voters who were unable
to read the English language, or physically disabled to mark his ballot, there-
fore received instructions? — A. Not at that time.
Q. Did you at any time witness of administer any oath to the voters yourself
when they asked for instructions? — A. I did not.
Q. Did you hear anybody else? — A. Not at that election. This man I in-
structed— an oath had been administered to him that he could not read at the
previous election.
Q. Were there any suffragettes at that voting place allowed behind the rail-
ing?— ^A. Yes, sir.
Q. More than one? — A. I remember of two.
Q. Did they participate in any way in the handing out of the ballots?— A-
No, sir.
Q. How many inspectors of election did you have there? — ^A. I think there
were 6 clerks and inspectors and 2 door men ; 8 in all.
Q. These door men are what are called gate-keepers? — A. Yes, sir; door
tenders or gate-keepers.
Q. They opened a door instead of a gate? — ^A. Yes, sir.
Q. Was there anything to keep people from the place where the ballots were
kept? — ^A. Yes, sir.
Q. Anything to keep the people from where the booths were? — ^A. No, sir:
the railing didn't extend all the way around the booths.
Q. Where did the women sit? — ^A. They sat inside of the railing with the
inspectors ; not with the inspectors, but back of them.
Gross-examination by Mr. Adams:
Q. You stated, Mr. Wheeler, that the booths, that there was no railing clear
around them ; isn't it a fact that those booths were practically up agahist the
wall on one side, were they not? — ^A. They were not; no, sir.
Q. And the walls of the room itself made a railing around and Inclosed
them? — A. The east wall would be the railing and an aisle between the booths
and the wall.
Q. The aisle would be between the booths and the wall? — ^A. Yes. sir.
Q. How far was it between the booths and the wall on the east side?— A. Four
or five feet.
Q. Just a passageway? — A. Yes, sir.
Q. On the nth day of November, 1912, at that election in that precinct the
railing was on each end of the room, so In order to get to the booths you had
to go through a gate? — -\. No. sir.
Q. How did you get into the booths? — A. You went through the aisle.
Q. How did you get into the a isle V— A. The aisle that would be the north side
of the booths on one side and nnother railing that went across the front
Q. They had to go through a gate somewhere before they could get In?—
A. There were no gates.
Q. They had to go through some sort of an opening? — A. The railing, ana
received their ballot and passed to the gatekeeper.
Q. Then where did they go? — A. Into the booths — entered the aisle and wm
into the booth.
Q. Entered that aisle and went into the booth? — ^A. Yes, sir.
CABNEY VS. SMITH. 503
Q. When they got rendy to vote where did they go out? — A. They came rij?ht
through the booth.
Q. Came through that door to the booths? — A. They cimie through the booth
and the railing.
Q. That was in tlie engine house? — A. In the rear of it.
Q. You say that you instructed one man? — A. Yes, sir.
Q. You had kno^^n that man?— A. I know who he is.
Q. You had been on the election board before? — ^A. Yes. sir.
Q. This man was a feeble man?— A. Yes. sir; he was what I would call
feeble.
Q. You could see that from his appearance that day? — A. Yes, sir.
Q. He was the only man you Instructed? — A. Yes, sir.
Q. Well, he perhaps asked you which was some particular ticket? — A. Yes, sir.
Q. Did he mark the ticket himself or did you for him? — A. I didn't see the
ticket marked. We were very busy; it was about closing time, and I walked
away and left him in the booth after pointing out to him the head of his party.
Q. That was the only thing, where the head of the ticket was? — ^A. Yes, sir.
Q. You told him that correctly? — A. Yes. sir; pointed It out to him.
Q. Then you left him to mark the ballot himself? — A. Yes, sir.
Q. He didn't mark it when you left? — A. Yes, sir.
Q. Is that correct? — A. Yes. sir.
Q. There was another inspector with you? — A. Yes, sir.
Q, Now, any others that may have applied for Instructions that day, yon
don*t know who they were or whether any instructions were, in fact, given them
in the booth ?-^A. No. sir; I do not. I am quite positive there were more
than that.
Q But you don't know what was done. If anything, in the way of giving them
instructions? — A. No, sir.
Q. Nor what was the matter with them or anything of that kind? — A. I didn't
inquire.
Q. You were an officer in the third precinct? — A. Yes, sir; first ward.
CHARLES H. LITTLE, being first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified in behalf of the oontestee, as
follows :
Direct examination by Mr. Maynard :
Q. Where do you reside? — ^A. Second ward, city of Kalamazoo, 415 W^oodward
Avenue.
Q. What is your occupation? — A. I am engaged in the feed and grain
business.
Q. Were you present at the general election held in the Fourth precinct in
the city of Kalamazoo. Kalamazoo County. Mich., on the 5th day of November,
A. I). 1912 ?--A. Yes, sir.
Q. Did you have any ofiicial connection with the board of inspectors? — A. I
was an Inspector; yes, sir.
Q. How many inspectors did you have? — A. Four, I think; might possibly
have been one more; I am not quite sure.
Q. How many clerks? — ^A. Two.
Q. Did you go there in the morning at the oiienlng of the polls? — A. About
6.30; yes, sir.
Q. How long did you remain? — A. Until about 12 o'clock at night.
Q. The polls were closed at what hour? — ^A. Five o'clock.
Q. Were there voters who applied for instructions as to how to mark their
ballots during the day? — A. Yes, sir.
Q. Would you be able to state how many? — A. Why. four or five. I should say.
Q. Did they receive instructions?— A. Yes, sir.
Q. Or assistance? — A. Yes, sir.
Q. Was there any oath administered to them before they went in the booth
that they were unable to read the English language or were physically disabled
to mark their ballots? — ^A. No, sir; there was not.
Q. Did you hear or know of any oath being administered to any of the voters
there that asked for assistance that day there?— A. No, sir; not that asked for
a ssi std noe.
Q. Mr. Little, did you have any women there behind the railing that day at
that polling place? — A. Yes, sir.
504 CARNEY VS. SMITH.
Q. How many? — ^A. There was one there all the time, and I think there was
another lady there a part of the time.
Q. They were admitted behind the railing? — A. Yes. sir; that la, admitted
behind the railing.
Gross-examination by Mr. Adams:
Q. You think, Mr. Little, that four or five voters asked for instructions?— A.
Yes, sir.
Q. I understood you to say that they received Instructions? — ^A. Yes, sir.
Q. They were men. you noticed, who were physically incapacitated, some of
them? — A. Yes, sir.
Q. Do you remember who they were? — ^A. One I remember distinctly.
Q. Who was that?— A. George Clark.
, Q. He is an epileptic ; not an epileptic, but has St. Vitus's dance, or something
of thaf kind? — A. I don't know what his incapacity is.
Q. Shakes all the time? — A. Yes, sir.
Q. When he came in there the 5th of November, 1912, you could see that be
could not write and mark his ballot; you knew that before? — ^A, I knew that
from past experience.
Q. That was his physical condition and it was apparent? — ^A. Yes, sir.
Q. He is an object who attracts attention as he passes along the street?— A.
Yes, sir.
Q. His legs are crooked and he drags himself along, practically all the time
his head going? — ^A. He has got a nervous condition.
Q. That is very apparent to anybody? — ^A. Yes, sir.
Q. And was on November 5, 1912? — A. Yes, sir.
Q. Do you remember any others? Whether you rememt>er them or not, it is
a fact ^A. I was Just trying to recall.
Q. Whether you recollect the names or not the fact is they were all men that
you observed when they came in th«t they were physically disabled? — ^A. Not
all ; I would not say.
Q. Give us the names of those you can recollect — A, There was a Hol-
lander.
Q. He was an old man? — A. No, sir; I don't think so; 55 or 60.
Q. Physically disabled in some particular? — ^A. I don't know that he was;
no, sir.
Q. Well, you didn't go in the booth with him?— A. Yes. sir.
Q. How did you hapi)en to go in the booth with him? — A. He asked for
instructions.
Q. Did you swear him?— A. No, sir.
Q. Was he sworn V — A. No, sir; I don't think so.
Q. Did another Inspector administer the oath to him? — A. No, sir; they did
not; not to my knowledge.
Q. How did you happen to go into the booth with him without administering
an oath to him? — A. It has been customary where a voter asks for instructions
that two insi)ectors go In the booth.
Q. You and another Inspector went Into the booth with him that day?— A.
Another inspector.
Q. Did he mark his ballot himself when he went in? — A. I think so; yes, sir.
Q. Did you stay to see him mark his ballot or tell him how to mark It and go
out? — A. I don't remember distinctly; he asked for instructions.
Q. He was n Republican, was he? — A. I couldn't say as to that.
Q. Don't you know that he was? — A. No, sir; I do not
Q. He has been a Uepublican in Kalamazoo, has he not, for a long time, for
some time i>rfor to that election and up to November 5. 1912? — A. I don't know,
sir.
Q. You don't know what his politics were that day? — ^A. No, sir.
Q. Do you know how he was enrolled or registered, whether lie was enrolled
as a Democrat or Republican : what he was enrolled at ju.st prior to that elec-
tion?— A. No, sir.
Q. You don't know how he voted? — A. No. sir.
Q. You didn't know how he voted at the time, did youV — ^A. Perhaps I knew
at the time.
Q. I 8upi>ose he simply asked you for some instructions how to mark his
ballot, then marked it himself, and you didn't see how he marked it, did you?—
A. I don't recollect that I did: no. sir.
CARNEY VS. SMITH. 505
Q. That is all you remember about those who received iust ructions there
that day, is it? — A. Yes, sir.
Q. You say in the four or five instances you have mentioned that no oath was
administered to any of them? — ^A. No. sir; there was not.
Q. What is that?— A. There was not.
Q. You were a Republican at that time? — ^A. Yes, sir. May I correct that?
Q. Yes, sir. — A. I was enrolled with the iiepublican Party.
Q. You were an alderman at that time? — ^A. No, sir.
Q. Who was the other inspector on that board at that time? — ^A. J. D. Schell,
Mr. McQuigg, and Mr. Grose was on the board. I couldn't say whether as an
inspector or clerk.
Q. Did you act as inspector or clerlt? — A. I was chairman of the board.
Q. At the November 5, 1912, election you were chairman of the board? — A.
Yes. sir.
Q. You have told all you know about the matter of the four or five men who
came in there and applied for instructions, have you — all you recollect? —
A. Why, it has always been customary
Q. It is not a question of custom ; I am talking about something else than
custom.
Last question read.
A. All I can recollect at the present time: yes. sir.
Q. You had challengers there for the different i>olitical parties at that pre-
cinct that day? — ^A. I don't think so.
Q. Do you mean that in the fourth precinct of Kalamassoo on November 5,
1912, election there were no challengers? — A. I don't remember of any; no, sir.
Q. Well, a Democratic and Republican inspector went in each time when
anybody went in the booth, didn't they, for instructions? — A. Always two;
yes, sir.
Q. Usually one from one political party and one from another political
party? — ^A. That is always customary.
Q. You did that day, did you?— A. Yes, sir.
Q. In so far as you gave any instructions that day, did you instruct the men
honestly and correctly, according to the instructions asked for? — A. Absolutely;
yes, sir.
Q. In each instance when you went in there did you go in more than one,
with this Hollander?— A. With Mr. Clark and others.
Q. In each instance when you did go in. when any instructions were given.
I suppose that the man asked you insiiectors who went in in each instance for
some information? — A. Yes. sir.
Q. About how to vote that ballot? — ^A. Yes. sir.
Q. Then you simply answered his questions and gave him the Information he
asked you about? — A. Yes, sir.
Q. Is that the extent of what you did? — A. Yes. sir.
P. B. GODFREY, being first duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestee. as follows:
Direct examination by Mr. M.wnard:
Q. W^here do you reside? — A. KaUnnazoo. Mich., in the fourth ward.
Q. Were you present at the general election held in the tenth precinct of the
city of Kalamazoo. Kalamazoo Comit.v, Mich., on the 5th day of November.
A. D. 1912?— A. I WAS.
Q. Had you any official connection with the board of Inspectors? — A. I did
have.
Q. What was it? — A. I was one of the inspe<-tors.
Q. Did you begin ofx'rating with the board in the morning at the opening
of the polls? — A. Yes, sir.
Q. How long did you remain? — A. Until the completion of the county and
the books were signed up and assistfnl in carrying the ballots to the city clerk's
office. That was about 2 o'clock In the morning.
Q. Were you supervisor or alderman? — A. I am not now.
Q. You were elected as insr)ector or api)ointed? — ^A. Yes, sir.
Q. Did you have during the day applications from voters for instnictions as
lo how to mark their ballots? — A. Yes, sir.
Q. How many? — A, I think four or five: I remember two occasions especially.
Q. What were those applications for? — A. Assistance in marking their ballots.
506 CARNEY VS. SMITH.
Q. Because of iihysical distibllity?— A. One wag; he could not see very well;
nnd one was he couldn't read.
Q. Did he say he could not read? — ^A. Yes, sir.
Q. No oath was administered to him? — A. I didn't know It was the law to
administer an oath to men who asked for assistance: I never knew it was the
law.
Q. Do you know of any oath beinp administered to any voter that day who
upplied for assistance In marking his ballot? — A. I don't know It; 1 don't be-
lieve there was.
Q. Did you have any women Ix^hlnd the rail hi?? in that voting place?— A. We
did; it didn't do any harm that I know of.
Cross-examination by Mr. Adams:
Q. Those women didn't take any part in the election? — A. No, sir; just made
it pleasant.
Q. They didn't handle the ballots?— A. No. sir.
Q. Ami didn't do any talking to the voters or anything of that kind?— A. No.
Sir.
Q. Just stayed there and looked on? — A. Yes, sir; and visited.
Q. They didn't visit about the iwlls or anything of that kind? — ^A. No, sir;
they were very much Interested in learning how to vote, so they would be ready
when it came.
Q. You think that four or five asked for assistance concerning their ballots
that day? — ^A. I rememl)er of two; generally there were four or five; maybe I
was confusing last November with the other elections.
Q. Perhaps you may be confusing some other? — ^A. Yes, sir; I don't know
whether they were or not; generally we have.
Q. I am now getting right down to this election of November 5, 1912.— A.
Yes, sir.
Q. How many do you say. if any, received any assistance in the matter of their
voting in that precinct? — A. I i-emember two positively.
Q. Beyond that you can not swear whether there were any or not? — ^A. No,
sir; I can't.
Q. One of those you say couldn't see? — A. He was partly blind.
Q. You knew that to be a fact? — ^A. He said so, and a^ed for assistance oq
that account.
Q. Could you see that his eyesight was bad? — A. I presume I could If I luid
looked, but I didn't ; I took his word for it.
Q. Who was It? — A. I don't know as I can tell you his name; he was in
Orand Rapids a while; I don't know as I can tell you his name; he was a
Hollander.
Q. Did you give him assistance? — A. Ye.s, sir; we did, and swore him for the
first time in my life.
Q. Did you hear him sworn? — A. Yes, sir.
Q. Did you testify that he was unable to mark his ballot? — A, Yes. sir.
Q. There was another one you spoke of? — A. Yes, sir.
Q. I suppose that other one, on November 5, 1912, asked you something about
the ballot. Did anybody go in the booth with him?— A. No, sir; he asked for
assistance.
Q. In the matter of marking his ballot? — A. Yes, sir.
Q. Did you go In the booth with him? — ^A, Yes, sir.
Q. Who else went in? — A. Mr. Ten Busschen.
Q. You were a Reimblican and Mr. Ten Busschen was a Democrat?— A.
Yes. sir.
Q. Did you have any challengers In that precinct at that time? — A. No. sr.
Q. I suppose he asketl you a question about what he wanted to know, which
was the Republican ticket? — A. He wanted to know, yes, sir, which was the
Republican ticket and which was the Democrat ticket.
Q. And you told him? — A. Yes. sir.
Q. Did he mark his ballot himself?— A. It is hard for me to remember
whether he marked it or whether we did.
Q. He may have marked it himself? — A. He may have done so under our
direction.
Q. You and Mr. Ten Busschen answered his question? — ^A. Yes, sir.
Q. If he marked his ballot he market! It in accordance with the question
he asked you and the information you gave him in answer to his question?—
A. Yes. sir.
Q. You didu*t In any way influence him one way or the other? — A. No, sir.
CABNEY VS. SMITH. 507
Q. You simply answered his question and he marked his ballot correctly? —
A. Yes, sir.
FRANK C. WALTERS, being first duly sworn to testify to the truth, the
whole truth, and nothing but the truth, testified on behalf of the contestee
as follows :
Direct examination by Mr. Maynard :
Q. Mr. Walters, where do you reside? — ^A. Ninth ward of the city of Kala-
mazoo.
Q. Kalamazoo County, Mich.? — A. Yes, sir.
Q. Were you present at the general election held In the Ninth Precinct of
the city of Kalamazoo, Kalamazoo County, Mich., on the 5th day of Novem-
ber, 1912?— A. Yes, sir.
Q. Connected with the election board? — A. I was not; I was present all
day.
Q. Do you know whether there were any voters who asked for assistance In
the way of marking their ballots? — A. There were some who asked for assist-
ance after they got in the booth.
Q. Were they assisted? — A. Yes, sir.
Q. Was there any oath administered to them? — A. No, sir.
Q. Did you see any women behind the railing of that voting precinct? — A.
No, sir; there was not; there were women there outside of the railing sitting
at a desk there.
Q. They were not in the voting precinct? — A. Not Inside the railing; no, sir.
No one was allowed inside of the railing.
Q. The women were not behind that railing? — ^A. No, sir.
Q. Where were the inspectors — behind the railing? — ^A. Yes, sir.
Cross-examination by Mr. Adahs :
Q. Yon were there all day? — ^A. Yes, sir; from the time the polls opened
until they closed.
Q. You were not a member of the board? — ^A. No, sir.
Q, Or clerk or gatekeeper or anything of that kind ? — ^A. No, sir.
Q. You were there as a challenger? — ^A. Yes, sir; and checking clerk.
Q. Challenger and checker? — ^A. Yes, sir.
Q. You kept track of those who voted? — ^A. Yes, sir.
Q. There were some who asked for assistance? — ^A. Several there.
Q. Mr. Grodfrey says three or four or five, did you see as many as that? —
A. As many as that; yes, sir.
Q. Some of them were physically disabled? — ^A. Why, there was one man
who could not see; he was blind. 1 should judge; he was assisted in the room.
Q. Did he have the appearance of beilig blind? — A. He was certainlv blind
all right
Q. You could see that?— A. Yes. sir.
Q. Do you know what his name was? — A. His name was Bolinger.
Q. Do you remember his first name? — A. No, sir.
Q. Do you know where he lives? — ^A. He died a short time ago.
Q. You don't know where he is now? — A. No, sir.
Q. Do you remember any others who asked for assistance that day? — A. I
don't remember any others; I don't remember who they were.
Q, You can't say whether they w^ere physically disabled or not? — A. There
were some of them who couldn't read the ballots.
Q. You say you can't say whether the rest of them were physically disabled
or not? — ^A. No. sir; I couldn't say as to that.
Q. You don't know? — ^A. No. sir.
Q. You don't know what occurred in the booths when they went in? — ^A.
While inside the door we couldn't all get Inside the booth when he was inside
the door.
Q. Two Inspectors went with him? — A. Yes, sir.
Q. Mr. Ten Buspchen was one of the inspectors? — ^A. No, sir.
Q. You were In what ward? — A. The ninth.
Q. Who was acting as inspector? — A. Mr. Labadie was one; he w^as the alder-
man and chairman of the board and another was Lewis Sutherland.
Q. Mr. Sutherland w^as there at the same time?— A. Yes, air.
Q. Mr. Labadle was a Republican? — A. Yes, sir.
508 CAKNEY VS. SMITH,
Q. That wag the same Mr. SutbeiiMud who was elected alclemiau on the
Democratic ticket? — A. Yes. sir.
Q. He Is the man who ran against Mr. Ijabadie? — ^A. Y'es, sir.
Q. Then they were the two who went with those men? — A. Yes. sir; dif-
ferent ones would go ; they would ask for some one and sometimes they would
be busy and others would go.
Q. The two inspectors from different iKilitical p*irties? — A. Yes, sir; one from
each side.
Q. Did you see any soliciting of any votes or trying to induce those men
who asked for assistance to vote one way or the other? — A. No, sir,
Q. No Democrat went into the booth to give assistance alone unaccompanied
by another inspector? — A. No. sir: when he started to go in he generally called
one of the others and he went in.
Q. If a Democratic inspector started for the booth he would call a Repub-
lican inspector to go with him? — A. Yes, sir.
Q. And the Republican went with him? — A. Yes, sir.
Q. If a Republican inspector started to go to the booth he would call n
Democratic inspector and he would go in? — ^A. Yes, sir.
Q. So there were always two — one from each party? — A. Yes, sir.
W. E. BOYD, being first duly sworn to testify to the truth, the whole truth,
and nothing but the truth, testified in behalf of the contestee, as follows :
Direct examination by Mr. Maynabd:
Q. Mr. Boyd, where do you reside? — ^A. In Comstock Township.
Q. What is your age? — A. I am 40 years old.
Q. What is your occupation? — A. I am running a retail lumber yard there
now.
Q. At Comstock? — A» Yes, sir.
Q. Were you present at the general election held in the township of (\)mstock
on the 5th day of November. A. D. 1912, county of Kalamazoo, and State of
Michigan? — A. Yes, sir; I was on the election board there.
Q. What part did you have on the board? — A. I was clerk, one of the clerks
of the election.
Q. Were you there when the polln opened in the morning? — A. Yes. «r.
Q. Where did you go to dinner? — A. I went home.
Q. Where did the others go? — A. I guess they all went home.
Q. Where were the ballot box and ballots left in the ballot box while yon
went to dinner? — A. We left those in the hall and put the poll books and unused
ballots in the box and sealed the box nnd left the box In the hall.
Q. You opened the box, did you? — A. Yesi, sir; at noon.
Q. That had the ballots cast in it?-7A. Yes, sir; and placed the poll books in
there.
Q. Together with the ballots that had been cast? — A. Yes, sir: and sealed
the box and locked it.
Q. Then went away and left the things there on the table? — A. We left the
ballot box in the hall locked and sealed.
Q. When did you return? — ^A. At 1 o'clock.
Q. Did you see voters assisted there through the dny at that precinct? —
A. Yes, sir; one.
Q. Only one? — ^A. Only one.
Q. What were the circumstances of that, was It somel>ody you knew? — ^A.
Yes, sir ; I have known him for a long time, and he always asks for assistance
at election, and I have been on the board several times. He wap a man I should
judge somewhere about 80' years old. and his eyesight Is defective; I know him
well : I know his eyesight is defective.
Q. Did you go in?— A. No, sir; I didn't go in to see him. What called my
attention particularly to it, we had a challen^r of the Progressive Party, and
he sat inside of the insi)ectors* fence there, and the question was whether this
challenger should be allowed along with the two inspectors apiK>inted by the
board to mark this man's ballot, and they finally decidetl that the challenger had
a right to see the ballot marked. So the two insi)ectors, who were appointed
by the board to act for the man. marked his ballot and went in and also the
challenger.
I would like to ask the question whether It Is nec^essary for a man In his
condition to take that oath?
Mr. Adams. No: it Is not.
CARNEY VS. SMITH. 50^
FRED C. WATERMAN, being first duly sworn to tell the truth, the whole
troth, and nothing but the truth, testified in behalf of the contestee, as follows:
Direct examination by Mr. Maynabd:
Q. Mr. Waterman, where do you reside? — ^A. In the fifth ward, twelfth
precinct; I was at the twelfth precinct.
Q. Were you present at the general election held in the twelfth precinct of
the city of Kalamazoo, Kalamazoo CJounty, State of Michigan, on the 5th day
of November, A. D. 1912?— A. Yes, sir.
Q. Were you a member of the board? — ^A. I was.
Q. What member? — ^A. I was inspector.
Q. How many inspectors did you have there? — ^A. I think we had four.
Q. Besides the clerks? — A. Besides the clerks; yes, sir.
Q. Did you go there at the opening of the polls? — ^A. Yes, sir; I did.
Q. Were you there when the polls were closed? — ^A. Yes, sir.
Q. What time did you close? — ^A. When we got through it must have been
half past 2 o'clock.
Q. The closing of the polls?— A. At 5 o'clock.
Q. Did you begin the count immediately? — A. No, sir; we got our supper first. .
Q. Did you adjourn? — ^A. Yes, sir; we adjourned long enough to get our
supper.
Q. Did you have supper served? — ^A. Right there In the room.
Q. You didn't leave the polling place? — ^A. No, sir.
Q. You commenced the count immediately after supper? — A. Yes, sir.
Q. And finished about when? — ^A. About half past 2 o'clock, I think.
Q. That same night?— A. Yes, sir.
Q. When you finished voting, what was the first thing you did when you
opened the polls? — ^A. In the morning?
Q. That night; opened the box I mean? — A. We sorted the ballots the first
thing we did; that is, commenced to sort them.
Q. And count the ballots?— A. Yes, sir.
Q. Did you count them to ascertain whether they agreed with the poll list? —
A Yes fill*
Q. Did they?— A. I think so.
Q. Did they agree with the poll list?— A. Yes, sir.
Q. Did you have the right number of ballots?— A. It seems to me we did;
I think we did.
Q. Did you have to destroy any ballots?— A. No, sir.
Q. What did you do with the unvoted ballots?— A. We returned them to the
city hall.
Q. Do you know what number you put down? — ^A. No, sir.
Q. Did you make a record of how many you had left ?— A. No, sir ; I did not*
Q. You don't know how many they had? — A. No, sir.
Q. During the day did you have applications for assistance from voters as
to marking their ballots?— A. Yes, sir.
Q. How many did you have?— A. Why, I am safe in saying four.
Q. Were those all people you were acquainted with?— A. No, sir; I was not
acquainted with any of them.
Q. What kind of assistance did they want?— All they wanted was some one
to show them how to mark the ballot.
Q. Did they receive the assistance? — A. Yes, sir.
Q. Was any oath sworn; was any oath administered? — ^A. No, sir.
Q. W^hen they asked for assistance they went right in the booth without any
oath bein^ administered as to their necessity of being assisted?- A. Yes, sir.
Q. As to whether they could read the English language or not?— A. Yes, sir.
Q. At that voting precinct did they allow women behind the railing? — ^A. Yes,
sir.
Q. During the day?— A. Tes, sir. , . ^. .. . ^ * , ..
Q. Those women were not in any way connected with the board of elecilon
inspectors? — A. No, sir.
Cross-examination by Mr. Adams:
Q Those women you speak of consisted of how many?— A. There was but
>ne there. There were two during the day, but they changed off— two different
women, but only one there, you might say, at a time.
Q. They were representatives of the suffragette party?— A. Yes, sir; l
think so. . « . ^T i. i.x, 1 i.
Q. They didn't take any part in the election?— A. Not the least.
510 CARNEY VS. SMITH.
Q. Didn't handle any ballots? — A. No. sir.
Q. Or have anything to do with the voting? — A. None whatever.
Q. Simply sat there? — A. Yes, sir.
Q. Where did they sit? — A. They really sat right amongst us, you might say.
The place being kind of small, it was i)retty close when the clerks and all
were there.
Q. They didn't interfere in any way with the election? — A. No, sir.
Q. Or suggest anything about the location? — A. No, air.
Q. Didn't give any instructions to members of the board or anything of that
kind? — A. No. sir.
Q. But simply were lookers on? — A. That is all.
Q. You sjiid you adjourned for supper. I take it from your description that
you didn't leave the building at all, or room? — ^A. No, sir.
Q. Where the books and ballot box were? — A. No, sir.
Q. Y'ou stayed right there and your supi)er was brought in to you?— A.
Yes. sir.
Q. You simply didn't go ahead with the count, that is all, while eating supper,
but were right there in the immediate presence of the ballot box and ballots and
election books and your election returns and everything else? — ^A. Yes, sir.
EUNEST WISE, being first duly sworn to testify to the truth, the whole truth,
and nothing but the truth, testified on behalf of the contestee. as follows:
Direct examination by Mr. Maynabd:
Q. W^here do you reside? — A. On Stockbridge Avenue, thirteenth precinct of
the city of Ka In ma zoo.
Q. Were you present at the general election held in the thirteenth precinct of
the city of Kalnmazoo, Kalamazoo County, Mich., on the 5th day of November,
A. D. 1912?— A. Yes, sir.
Q. Were you a member of the election board? — A. Yes, sir.
Q. When did you begin — at the oi)ening of the ik)11s in the morning?— A,
Y'es. sir.
Q. Were you there when they closed, at 5 o'clock? — A. Yes. sir.
Q. Your bojird adjourned after the closing of the iwlls? — A. They adjourned
after we closed the jMills and had our supi)er; then opened the polls. We didn't
adjourn until our reiwrt was made out.
Q. That is, after the polls close<l you had your supper before you proceeded
with the count*? — A. Yes, sir.
Q. When did you finish the count?— A. About 2.30.
Q. On the morning of the 6(h? — A. Y^es, sir.
Q. Do you know how many ballots were delivei'ed to you when j-ou started
in? — A. One thousand ballots,
Q. How many did you have? — A. Eight hundred and seven.
Q. Were the others destroyed? — A. Not one.
Q. How many did you have when you got through? — ^A. We had the full
number, 807. Every one was accounted for; they were all accounted for.
Q. Were there any you had to throw out ? — ^A. Yes, sir,
Q. How many did you have unvoted? — A. Eight hundred and seven.
Q. Unvoted? — ^A. We returned them to the clerk.
Q. How many were returned? — A, The unvoted? I don't think that is in the
report.
Q. Were you present at the polls all day during that election day? — ^^V. Yes, sir.
Q. Did you see any voters apply for instructions as to how to mark their
ballots? — A. Y>s, sir.
Q. How many would you say? — A. Four or five.
Q. Did you know them all? — A, No. sir.
Q. Did they receive instructions? — A. Yes. sir.
Q. By whom were they instructetiv — A. By myself and one of the other In-
spei'tors — Charles E. DHL
Q. Did you have any challengers for the different i>arties there?— A. Not
to my knowledge.
Q. Did anyone present themselves to your board as challenger for any
])olltical ijarty? — A. Not to my knowledge: I have no recollection of it.
Q. Was there any oath adniinisterwl to any of the votera who received assist-
ance there before their ballots were marked for them? — A, No, sir.
Q. Did you have any women sitting behind your railing? — A. Yes, sir.
CABNEY VS. SMITH. 511
Q. How many? — A. Five or six. They came iu in two relays. One relay
was one, and the other two times two each time.
Q. Did they remain at this voting precinct all day? — A. Yes. sir.
Q. Were you there when you counted up at ni^ht? — A. Yes, sir.
(^ross-exa mi nation by Mr. Adams :
Q. Those women — the tive or six women jou have mentioned — were repre-
sentativeB of the women suffragettes? — A. Yes, sir.
Q. There were five or six different women there. I understand, who were
there during the day? — A. Yes. sir.
Q. Some part of the day there was one: how many women the most? —
A. Two at one time was the most.
Q. So they had relays of two women? — ^A. Yes, sir.
Q. Those women did not take any part in the election, did they, in any way,
sbape. or manner? — ^A. No. sir; none whatever.
Q. Didn't handle any ballots? — A. No, sir.
Q. Didn't give any Instructiong to any voters? — ^A. No, sir.
Q. Didn't interfere with the election in any way? — A. No. sir.
Q. Didn't have anything iwrticularly to say — Ju.**t looking a round? — A. Y'es, sir.
Q. You were the representative of the Republican Party at that election? —
A. Yes, sir.
Q. Mr. Gill was the inspector? — A. Yes, sir.
Q. Was lie the representative of the Democratic Party? — A. Yes, sir.
Q. In those Instances where any instructions were given to voters, you and
Mr. Gill went together In each instance with the voter to tlie booth? — ^.\. Yes, sir.
Q. Now, you said you adjounied. You mean l)y that. Is that you simply
went and had supper? You used the word ** adjounied " ; do you wish to cor-
rect it? — A. Yes, air.
Q. You meant by that, didn't you, that you simply stopjied work on the elec-
tion business there and supi)er was brought right into the room where your
ballot box and lKK>ks and ballots were? — A. Yes. sir.
Q. You ate your supper right there iu the iuimediate presence of the ballot
box, ballots, and election books, right in your immeiliate sight? — ^A. Yes, sir;
we didn't adjourn; we just simply didn't open the ballot box until after we
had our supper. We had our supi>er on the table we had been working on.
We cleared the supper off and went tt) counting on the table.
Q. .You stayed there by the ballot box after r» o'clock, when the iKiUs closed,
and ate your 8Upi)er first? — A. Yes, sir; and oi)ened the ballot box afterwards.
GEORGK THAYER, being first duly sworn to testify to the turth, the whole
truth, and nothing but the truth, testified on behalf of the contestee, as follows:
Direct examination by Mr. Maynard:
Q. Mr. Thayer, where do you reside? — A. Fifth ward. Kalamazoo, Mich.
Q. Were you present at the general election held in the fourteenth precinct
on the 5th day of November, 1912? — A. Yes, sir.
Q. W^re you a member of the board? — A. Yes, sir.
Q. Of election Inspectors? — ^A. Yes, sir.
Q. Did you go there in the morning? — A. Yes, sir.
Q. Were you there all day? — ^A. Yes, sir.
Q. When did the election close? — A. When we closed it would be 5 o'clock,
supposed to be ; w^ didn't leave until nearly 3 o'clock.
Q. On the morning of the 6th? — ^A. On the morning of the 6th; yes, sir.
Q. Did you adjourn after the polls closed for supper? — \. No, sir; we did not.
The box was placed to one side and we ate our supi)er on the table we worked
on during the day.
Q. Then opened the box and proceeded with the count? — A. Yes, sir.
Q. Do you know how many ballots you received? — A. I couldn't say.
Q. Do you know how many you had w^hen you were through? — A. No, sir; I
do not.
Q, Did you have to destroy any ballots? — A. No, sir; they were all accounted
for.
Q. During the day of the election were you present all day in the polls? — A.
I was except when I ate dinner; throe of us went in the house.
Q. Did you adjourn? — A. No, sir; we didn't adjourn.
Q. How many of you left? — A. Just three at a time.
Q. Yon and two others went together? — A. Yes, sir.
512 CARNEY VS. SMITH.
Q. When you returned what did yoii find? — A. The rest of them were to
work, and as soon ns I got my lunch I came right out and did the same — I went
to work.
Q. Did the others go while you remained there? — A. Yes, sir.
Q. Did yon see any of the voters there during that day at that election apply
for assistance In marking their ballots? — A. I did; yes, sir.
Q. How many do you think? — A. Why, there were two, anyway, I can re-
member, and I presume there were more; there were two, anyway.
Q. Who were they, if you roniem!>er? — A. I don't know; nobody I knew. They
went In the booth and they inquired for help, and the chairman of the board
and another party went in inside the booth; what they done or said I don't
know.
Q. Did you hear any oath administered to anyone who applied for assist-
ance?— A. I did not; no, sir.
Q. Were there any w^omen permitted in behind the railing of your voting
precinct? — A. There were; yes. sir.
Q. How many? — A. There were two most of the time, and part of tJie time
three. Of course, now. the railing — we had a similar room to this; a post put
in the same as that door and the booths were on this side and our table was
along there, and the women sat in that corner; they had their chairs there and
a table there.
Q. They were in the room — in the same room — where the inspector and clerks
of election were? — A. Yes, sir; just one room; that was an old barn.
Q. In the same room? — A. Yes, sir.
Cross-examination by Mr. Adams;
Q. Those women were represent:! t Ives of tlie suffragette party? — ^A. Yes, sir;
they were.
Q. They didn't take any part in the election at nil? — A. None whatever;
no, sir.
Q. Didn't handle the ballots or have anything to do with them? — ^A. No, sir.
Q. They didn't have anything to do with the voters? — A. No, sir.
Q. They were not anywhere near the booths? — A. No, sir; they were within
G or 7 feet of them.
Q. They conducted tliemselves in a nice manner during the entire proceedings
of the election? — A. Yes. sir.
Q. Did that inspectors' table constitute a railing in fact? — A. Well, yes;. yon
mi^ht say — now, they came in in that door — the booths were Just the same as
this side here, and there was a string of eight booths, I think, and in betwe«i
each four there was a space of about 2 feet. Our table stood along there, and
the inspectors and clerks were on that side of the table, and they came in this
door here and they went through into the booth, then through on the ontside
on the other side and came back to this place where these 2 feet were, and
went out of the back door.
Q. Deiwsited their ballots and went out? — A. Yes. sir.
Q. You stated at noon you went away somewhere for lunch? — A. Yes. sir;
went in the house.
Q. In the house? — ^A. Yes. sir.
Q. How far away? — A. In the neighborhood of 5 or 6 rods.
Q. How many were there of your board of clerks and inspectors? — A. I think
there were four Inspectors and two clerks and two gatemen, if I remember right
Q. When you went to dlinier how many of the insi>ectors and clerks and gate-
keei)ers were left there? — A. Only three went.
Q. The res»t of the board an<l the gatekeei)ers remaino<l there while yon were
at dinner? — A. Yes, sir.
Q. When you got back you found them there? — ^A. Yes, sir.
Q. When you three came back another three went? — A. Yes, sir.
Q. The rest of them they all had their lunch? — A. Yes, gir.
Q. You kept the election going during the noon hour? — A. Yes. sir.
Q. You were inspector? — A. I acted as clerk.
Q. Now, two applied for assistance? — A. Two I remember of.
Q. That Is all that applie<l for assistance?— A. That I am positive of: yes, sir-
Q. In each Instance where any assistance was rendered to any voter that day
there who applied for assistance two inspectors went to the booth with them?—
A. Yes, sir.
Q. I suppose you had some Democratic inspectors and Republican inspec-
tors?— A. Yes, sir.
CABNEY VS. SMITH. 513
Q. When a voter was rendered any assistance at all in the matter of marking
his ballot usually a Democrat and Republican went with him? — ^A. Yes, sir.
Q. Every time? — ^A. Yes, sir.
B. 0. BUSH, being first duly sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestee as follows:
Direct examination by Mr. Maynard:
Q. Mr. Bush, where do you reside? — A. 36 West South Street In the city of
Kalamazoo.
Q. Were you a member of the board of election Inspectors at the general
election held in the seventh precinct of the city of Kalamazoo, county of
Kalamazoo, State of Michigan, on the 5th day of November, A. D. 1912? — ^A.
I was; yes, sir.
Q. Did you see women behind the railing there? — ^A. Yes, sir.
Q. Do you know a woman by the name of Miss Marsh? — A. I Imow a woman
who was introduced to me as Miss Marsh.
Q. Was she present there behind the railing during the election In that pre-
dnct? — A. Yes, sir.
Q. Did you see her handling any ballots at that election In that precinct —
handing them to the voters? — A. 'Well, we were very busy that day, and
one of the Inspectors signed the ballots, and there being seven ballots In all it
was a pretty hard matter to fold the ballots and get them ready and keep
enough ahead and supply those; the lady, she didn't interfere, but now and
then she would assist a little in folding, and oftentimes when a man*s name was
called, handed them out in the general order so the numbers agreed on the
ballots, once in a while; she was very ladylike about it; she would pick up
the ballots according to the number and hand them to the man when they
called his name off the book of registration.
Q. She handed the ballots instead of the inspectors? — ^A. Yes; she did that
several times.
Q. Was she in any way connected with the board of election inspectors
there? — ^A. She was not; no, sir.
Cross-examination by Mr. Adams:
Q. This Miss Marsh only had the suffrage ballots, didn't she?— A. She handled
the whole bunch; there were several ballots, if I remember right; seven of
them, I thltLk, last fall. I may be thinking back — 1 said seven — I was thinking
back, of the spring election. There was more than — I will not say the number
of ballots. The suffrage ballot and the general ballot, upon which ballot the
State and county tickets are, I will not say ; but In order to keep the numbers
to correspond we would slip them into wrappers as the ballots were signed up,
so as not to lose track of the number of the ballot so they would always corre-
spond with the number on the poll list. The ballots laid there and I would
look up and when I would say " all right " she would take the ballots herself
and hand them out through the window to the applicant or voter.
Q. She was right there near you?— A. Yes, sir.
Q. You were right there close to Miss Marsh when she handed them out? — ^A,
As close as to Mr. Stock well here.
Q. Within a couple of feet?— A. Yes, sir.
Q. All these various ballots that you handed out to a voter to vote there was
a rubber band about them? — ^A. No, sir; we kept the pile with a rubber band
around so they would not slip, so we would be sure to keep the number of
the ballots so they could correspond.
Q. Where did she get the ballots from; who handed them to her? — A. An
inspector signed the ballots in another comer of the room and passed them
along to some one and they were folded. Oftentimes he would push them to me»
and I would lay the pile down without a rubber band around them, and often-
times when I would be busy in straightening up the ballots and slipping a rub-
ber band around them to keep the numbers consecutively and I would be busy
there and a man would come to the window I would get his name and Mr.
Walton would look on the registration book and call his name to be sure, she
would pick up a ballot and pass it out of the window, and, being a lady, I
didn't care to call her down for it, although she never unfolded any ballots.
Q. You say that she did not in any way tamper with the ballots, or mark
them, or say anything to the voters, do you? — A. She was a perfect lady; she
didn't say anything or tamper with them or say anything to the voters.
286—13 33
514 CARNEY VS. SMITH.
Q. Slie was a teacher in one of the schools, in the normal school? — A. Her
occupation I am not aware of.
Q. Was James Chase a member of that board that day? — ^A. Yes. sir; he
received the ballots.
Q. What shape was he in that day? — A. Well, for my part, I was glad the
ladies were there.
Q. What was his condition? — A. He didn^t look just right t6 me; he was
pretty wfndy, anyhow.
Q. Did he appear to be in any way intoxicated? — A. I should say he was not
exactly sober.
Cross-examination by Mr. Adams :
Q. Mr. Bush, while you were there that day was there a man by the name of
John C. Smith come there to vote? — ^A. An old gentleman by the name of Jolm
C. Smith.
Q. IMd you know him? — A. I have known him by sight for a great many
years.
Q. You have been on election boards before in that precinct? — ^A. Yes, sir;
many times.
Q. Was this John C. Smith a blind man ? — A. They always said he was a
blind man, and I considered him as such.
Q. You could 94»e that from his actions and looks? — ^A. He had to have some-
body to lead him.
Q. Did he apply for instructions that day there? — A. Yes. sir.
Q. Did any other man there, to your knowledge, that you saw, apply for any
Instructions In the manner of marking his ballot there that day, November 5.
Iftl2, at that precinct besides this man Smith?— A. Not that I saw.
Q. You personally — that you saw, I mean? — A. No, sir.
Q. He was the only one? — ^A. He was the only one.
Q. You were there all day? — A. Yes, sir.
KDWARD F. (?rKTENTrS, being flret duly sworn to testify to the tiiith, the
whole truth, and nothing but the trutli. testifted on behalf of the conteste* as
follows :
Direct examination by Mr. Maynabd:
Q.. Where do you reside? — \. Kalamazoo, Mich.
Q. What is your occupation? — ^A. I am county clerk.
Q. What is your age? — ^A. I am 48.
Q. How long have you been county clerk? — A. Two years and three months.
Q. You were county clerk, were you, at the time of the general election held
on November 5, 1912, in the county of Kalamazoo? — A. Yes, sir.
Q, On November 5, 1W2?— A. Yes. sir.
Q. As such were you a member of the board of county canvassers?— A. I was
clerk of the board of county canvassers.
Q. Have you the returns from the township of Alamo? — A. I think so:
yes, sir.
Q. I wish you would produce them. — ^A. All right.
Q. I show you BbLhlbit 74, puporting to be the poll book of the general elec-
tion held on Tuesday, the 5th day of November, in the township of Alamo.
eounty of Kalamazoo, SUite of Michigan, and ask you to look on the first and
second pnges of what puri)orts to be the blank official oaths and read the first
official oath. — ^A. The first official oath is the inspector of election. (Reading:)
'* State of Michigan, county of Kalamazoo, ss. I do solemnly swear that I will
support the Constitution of the United States and the constitution of this State,
and th«t I will faithfully discharge the duties of the election held on Tnesday.
the 5th day of November. A. D. 1912, according to the best of my ability. So
help me God. Hubert J. Cosher. Subscribed and sworn to before me this 5tn
day of November, A. D. 1912. A. Peck."
Q. Is there any official designation to the name of the person who adminis-
tered the oath who it puri>orts to be sworn before? — ^A. No, sir.
Q. The next oath, what is that?— A. That is the oath of an inspector or
election also, signed in the same way.
Q. Is that signed in the same way? — A. Yes, sir; and sworn to in the saiu<*
way.
Q. Is there any official designation after the name of the person It puriJoriJ!
to be sworn to before? — A. No, sir; it is signed by another man.
Q. Subscribed to before whom? — ^A. A. Peck.
CABNEY VS. SMITH. ' 515
Q. Any official character to Peck's name? — A. No, sir.
Q. The next oath is what kind of an oth? — A. Inspector of election. F. U.
Carlton, and sworn to before A. Peck.
Q. Has that any official character? — ^A. No, sir.
Q. The next oath is what? — A. It is signed by I..eslie Hutchlns and sworn
to before A. Peck. The next oath is signed by Henry Norton and sworn to
before A. Peck.
Q. What is that oath?— A. That is the clerk of election.
Q. You may read the next oath. — A. (Reading:) "Gatekeeper at election.
State of Michigan, county of Kalamazoo, ss. I do solemnly swear that I will,
support the (Constitution of the United States and the constitution of this State,
and that I will faithfully discharge the duties of the office of gatekeeper of
this election, held Tuesday, the 5th day of November, A. D. 1912. C. G. Camp-
bell. Subscribed and sworn to before me the 5th day of November, A. D. 1912.
A. Peck."
Q. Any official character to that signature to that jurat? — ^A. No, sir.
Mr. Maynard. I call attention to the fact that the form of the oath does not
comply with the requiremeutn of the statute as to the oath that a gntekeei)er is
required to take.
Mr. Adams. I except to the remark of counsel ; it is not a matter of argument
at this time whether It is or not.
Q. Read the next one. — ^A. The next oath is that of gatekeeper. [Reading:]
*• State of Michlgsin. county of Ivalamazoo, ss. I do solenmly swear that I will
support the Constitution of the United States and the constitution of this State,
and tliat I will faithfully discharge the duties of gatekeeper at the election
held on Tuesday, the 5th day of November, A. 1). 1912. according to the best
of my ability. So help me God. R. J. Pisher."
Q. Is there any official character to that Jurat? — ^A. No, sir.
Mr. Maynard. I call attention to the fact that this oath does not comply
with the oath required to be taken by a gatekeeper at an election.
Mr. Adams. I move to strike out the comment of counsel.
Q. I show^ you Exhibit 75. How many tally sheet books do you find in the
returns from the township of Alamo? — ^A. I find two.
Q. Ix>ok under the head, "Office of Representative In Congress, third dis-
trict"; whose names do you find there as candidates? — A. Milo F. Martin, John
M. C. Smith, Claude S. C^arney, Levant L. Rogers, and Edward N. Dlngley.
Q. Opposite the name of John M. C. Smith what tallies do you find there?
How many tallies opposite his name? — A. Eleven tallies opposite that name.
Q. What name? — A. John M. C. Smythe.
Q. Is there any alteration or erasure of that name? — A. Yes, sir.
Q. Can you tell over what the name is? — A. Not very plain; no.
Q. In comparison with the tally sheet?
Mr. Adams. I object to the witness telling what one book shows by com-
IJtfirlng It with some other tally sheet book. He has testified from that book
and testified what the book shows and should not draw any conclusions and I
object to the question as calling for a conclusion and as Incompetent.
Q. I show you Exhibit 76 under that same heading, "Representative In Con-
gress, third district," wliat are the names there? — A. The first name is Milo F.
Martin, John M. C. Smith, Claude S. Carney, I^evant L. Rogers, and Edward N.
Dlngley.
Q. Is that the tally-sheet book from this precinct? — A. One of them; yes, sir.
Q. This tally sheet, Exhibit 75; examine that and see If you can tell what
was first written. — A. No, sir ; I don't think I can.
Q. Is it apparent that where there is an **M" there was a " Y"?
Mr. Adams. I object to that as leading and calling for a conclusion.
A. Possibly it is.
Q. What does it read?
Mr. Adams. I object to it as inconiiwtent and calling for the conclusion of
the witness. The witness can tell what he finds there and that is all.
Q. What Is the condition? What is the name? What are the characters
there? — A. Well, they have written the name "John M. C. Smith" over some
name that was partly erased before.
Q. John M. C. Smith?— A. I didn't notice that at the time. It looks like
S-y-r-i-k,
Q. Is this the envelope this came in? — A. Yes, sir.
Q. I show you Exhibit 77 and ask you what that is? — A. That Is the re*^-
from Alamo Township.
616 CARNEY Va. SMITH.
Q. The re! urns from Alaiuo Township? — A. To the judge of probate's office.
Q. Is that the one the board of county canvassers had? — A. Yes. sir.
Q. Has it ever been unsealed? — ^A. No, sir.
Q. Then tlie board of county canvassers compiled their elei'tiou from tlie
returns from the township of Alamo without looking at it?
Mr. Adams. ()bje<-ted to as incompetent and ininiateriHl.
A. Yes, sir.
Q. They never saw the returns made to the board?— A. Xo, sir.
Q. Do you find the returns here intact and the seals unbroken? — ^A. Yes, sir.
Mr. Adams. Do you want to o|)en it? We wili consent that they be opened.
Mr. Maynard. No, sir ; we do not. You can not change the returns.
Q. Prairie Ronde. I sliow you Exhibit 7S and ask you what that purports to
be? — A. The poll l>ook of the general election held on Tuesday, the 5th day of
November, A. I). 31)12, at the township hall in the township of Prairio Ronde,
county of Kalamazoo.
Q. I ask you to turn to the first two pages and I'ead the first jurat— A.
(Reading:) Oath of insi)ector of election. " State of Michigan, county of Kala-
mazoo, ss. I do solennily swear that I will supiK)rt the Constitution of the
United States and the constitution of this State, and that I will faithfully dis-
charge the duties of the oflice of insi)ector at an election held on Tuesday, the
5tli day of November, .V. D. 1912. according to the best of my ability. So help
me God." Not signed by anybody or sworn to before anybody by anybody.
Q. Tlie next one? — A. The next one is oath of inspector of election. **State
of Michigan, county of Kalamazoo, ss. I do solemnly swear that I will support
the Constitution of the Tnit^Hl States and the constitution of this State, and
that I will faithfully discharge the duties of the ottice of inspector at the elec-
tion held on Tuesday, the 5th day of November. A. D. 1912, according to the best
of my ability. So help me God. I-.evi A. Luce." Not subscribetl and sworn to
before anybody.
Q. Did any officer sign that jurat? — A. No, sir.
Q. Did any officer sign the next jurat? — A. No, sir.
Q. What is on the bottom of that page — what is it for? — ^A. Oath of Inspector
of election.
Q. Is that signed by anybody? — A, Yes, sir.
Q. Is the oath made out or is it in blank? — ^A. In blank.
Q. Is there any official Jurat made by any officer? — ^A. No, sir.
Q. Take tlie next one; what is that? — A. Oath of clerk of election.
Q. Is that signed by anybody? — A. Jesse M. Crose.
Q. Is there any official Jurat to that? — A. No, sir.
Q. Turn over the page. — A. Oaths of gatekeepers.
Q. Are either of them signed? — ^A. No, sir.
Q. Is there any Jurat attached to either of them? — ^A. No, sir.
Q. Next to the last page; read the certificate. — ^A. (Reading:) ** I do hereby
certify that the foregoing is a true record of the dlsiiosition made in each case.'*
Q. Is that certificate signed by any officer? — A. No, sir.
Q. On the back part of the page, is the Jurat signed? — ^A. No, sir; Just wait
a minute.
Q. Read the certificate and see if it is filled out.— A. (Reading:) *' The whole
number of votes cast is . The whole number of votes counted In the
ballot box was . Ballots in excess of the number of voters voting and
destroye<1 was . Whole number of votes corresponding with the poll list
was . ^e it known that immetliately uiK>n closing the polls in accordance
with the laws of the State of Michigan the board proceeded to compare the
foregoing poll list with this certificate, and that all mistakes found therein
were corrected and sjiid ik)11 lists were found to agree. Witness our hand and
seal this 5th day of November, A. D. 1912. I^vi W. Luce, Jacob Schwartz, Ray
Hartmann, Ray Kline, board of inspectors of the election held on Tuesday, the
5th day of November, A. D. 1912, Prairie Ronde. county of Kalamazoo.*'
Q. I call your attention to lOxhibit 79 and ask you what that is. — A. That
is the tally sheet of the general election held November 5, 1912, In the town-
ship of Prairie Ronde, county of KnlamaziK), Mich.
Q. How is that tally sheet kept — in ink or lead pencil? — ^A. It is kept in
lead i)encll, as far as the tallies are made — in lead pencil.
Q. 1 show you Exhibit SO and ask j^ou what that Is. — A. That is a state-
ment of the votes cast in the township of Prairie Ronde, Kalamazoo County,
and returned to the judge of probate and board of county canvassers.
CABNEY VS. SMITH. 517
Q. Did the board of coimty canvassers make up their returns and canvass
the votes for the office of Representative in Congress, the third district with-
out opening the returns received from Prnirie Ronde? — A. Yes, sir.
Q. Are those returns now here unsealed and intact? — A. Yes. sir.
(Whereupon the hearing was adjourned until 9 o'clock a. m.. April 9, 1913.)
Wfdnesday, April 9, 1913 — ^9 o'clock a. m.
EDWARD F. CURTKMl'S was recalled and further testified on behalf of
the contestee as follows:
Examined by Mr. Maynard:
Q. Now, turn to the first precinct of the city of Kalamazoo; were the poll
books returned in that precinct V — A. No. sir; I don't think they were.
Q. Did the first precinct return both poll books? — A. Yes, sir.
Q. In the pool books are the oflicial oaths filled out and signed? — ^A. 'No,
sir; they are not.
Q. Are there any oflficinl oaths filled out in the forms following? — A. One
of them.
Q. Which one? — A. The first one, the oath of inspectors of election.
Q. Who is that signe<l by? — A. That is signed by — I don't know this party—
Irvin M. Simpson.
Q. Who is that sworn to before? — A. It was sworn before C. L. Miller, city
clerk.
Q. Is that the only oflicial oath that Is filled out and swoni to in that pre-
cinct?— A. Yes, sir.
Q. Has any other officer of that election board in that precinct taken an
oath before any officer who signed his name officially to the oath? — ^A. No, sir.
Q. How was it with the gate keepers; did they sign the official oath? —
A. They signed the official oath, but it has not been acknowledged.
Q. No jurat?— A. No jurat.
Q. Is there any certificate filled out and signed by the board of inspectors? —
A. No, sir.
Q. What is the certificate in the back of the hook?— A. (Reading:) "Whole
number of electors voting according to the poll list was . Whole number
of ballots' counted on oi)ening the ballot box was . Ballots in excess
of the number of voters voting and destroyed was . Whole number of
ballots corresponding to the poll list was . Be it known that immediately
upon closing the polls, in accordance with the law of the State of Michigan,
we proceeded to compare the foregoing poll list with its duplicate, and that
all mistakes found therein were corrected, and said poll lists were found to
agree. Witness our hand and seal this 5th day of November. 1912. Inspectors
of election, held on Tuesday, the 5th day of November, A. D. 1912, Kalamazoo
County, State of Michigan." (No signatures attached.)
Q. Was that filed with the county clerk or judge of probate?— A. This one
was filed with the judge of probate.
Q. Take the poll book for that ward that was filed with the county clerk
and see whether the certificate is made out. — A. Yes. sir.
Q. Made out what day? — A. On Tuesday. "Witness our hands and seals,
Tuesday, day of November, A. D. 1912."
Q. Has that any signatures to it? — A. No, sir.
Mr. Fbankhauser. The objection you made yesterday may be considered to
cover all the testimony at Kalamazoo.
Q. Take the poll book filed with the county clerk from that precinct, were
the official oaths filled out and signed before some officer, or any of them? — ^A.
Only one, I think.
Q. Which one is that? — A. That was the first oath, the oath of insi)ector
of election.
Q, What officer was that sworn to before? — A. That was sworn to before
C. L. Miller, city clerk.
Q. In his official character? — A. Yes, sir.
^. To the jurat?— A. Yes, sir.
Q. Were there any of the rest of the official oaths signed by any of the
officers? — ^A. No, sir; they were not.
518 CABNEY VS. SMITH.
Q. Take the tally sheet from that waid opposite the name of John M. C.
Smith. cnndidHte for Congress iu the third congressional district; how are the
tallies kept, in lead pencil or ink? — ^.V. They are kept in lead pencil.
Q. Opposite the name of Claude S. Carney, how were they kept?— A. They
were kept in lead pencil.
Q. Taking the second precinct of Kalamazoo, take the poll hook from the
second precinct of the city of Kalamazoo and turn to the official oaths and
certificates of officers in that precinct, the first oath, was that signed?—
A. Yes, sir.
Q. By whom?— A. William O'Byrne.
Q. Before whom was it subscribed and sworn to? — A. Before Jesse Wllkins,
chairman.
Q. Is that all of the official designation of the person who subscribed that
oath? — ^A. Yes, sir.
Q. Just give it to the stenographer as it was signed. — A. It is signed, "Jesse
Wllkins, Ch."
Q. Is that all of the official designation there is?— A. That is all.
Q. Take the next one, what is that? — A. The next oath is the oath of an
Inspector of election which is signed by Mr. Mahoney.
Q. Before what officer does it purport to be sworn? — A. Subscribed and sworn
to before Jesse Wllkins. (^h.
Q. Are all those oaths subscribed to before the same officer in the same
way? — A. They are with the exception of the gatekeepera
Q. Is the first one subscribed by any person? — A. No, sir; it reads, "Sworn
and 8ub8cril)ed to before me this 5th day of November, A. D. 1912, Sam R.
Fields,'* but the oath is not signed.
Q. Read the official oath.— A. (Reading:) '* State of Michigan, county of
Kalamazoo, ss. I do solemnly swear that I will support the Constitution of
the United States and the constitution of this State and that I will faithfully
discharge the duties of the office of gatekeeper at the election held on Tuesday,
the 5th day of November, A. D. 1912, according to the best of my ability. So
help me God."
Q. Is that signed by anybody? — A. No. sir. [Reading:] ''Subscribed and
sworn to l)efore me this 5th day of November, A. D. 1912. Sam Fielda"
Q. No official designation? — A. No, sir.
Q. The next oaths? — A. The next oath [reading :1 " State of Michigan, county
of Kalamazoo, ss. I do solemnly swear that I will support the Constitution of
the United States and the constitution of this State, and that I will faithfully
discharge the duties of the office of gjUekeeper at the election held on Tuesday,
the 5th day of November, A. I). 1012, accoi*dlng to the best of my ability. So
help me God. John Hanson. Subscribed and sworn to before me this 5th day
of November, A. D. 1012." Not signed. The jurat Is not signed by any official.
Q. Turn to the certificate in the i)oll book. I wish you would read that cer-
tificate.— A. (Reading:) "Whole number of voters voting according to the poll
list was . Whole number of ballots counted on opening the* ballot box
was . Ballots In excess of the number of voters voting and destroyed
was . Whole number of ballots corresinmdlng with the poll list was
. Be it known that immediately upon closing the jwlls In accordance
with the laws of the State of Michigan, this board proceeded to compare the
foregoing ix)ll list with Its duplicate, and that all mistakes found therein were
corrected, and that said i)olI lists were found to agi*ee. Witness our hands this
nth day of November. A. I). 1012. Je.«ise Wilkins, G. F. Mahoney. William
O'Byrne. F. A. Newall, inspectt>rH of election of the second precinct, held on
Tuesday, the nth day of November. A. I). 1912. county of Kalamazoo, State of
Michigan."
Q. Were both of the iwU books In that i)re<.'lnct returned? — A. Not to the
county clerk.
Q. None were returne<l to the county clerk nor to the Judge of probate? —
A. No. sir: no i)oll book in the judge of probate's office.
Q. In the imiII book, I wish you would read the third oath of lnsi>ectors — the
official oath V— A. (Reatllng:) '" State of Michigan, county of Kalamazoi*. ss. I
dq solennily swear that 1 will support the Constitution of the United States and
the constitution of this State, and that I will faithfully discharge the duties of
the office of lnsi)e<»tor at the ele<tion held on Tuesday, the 5th day of November,
A. D. 1912, according to the best of my ability. So help me God. Frank J.
Newall. Subscribeil and sworn to before me this 5th day of November, A. D.
1012. Jesse Wilkins. Ch." Next follows the oath of inspector of election
CABNEY VS. SMITH. 519
[reading] : ** State of Michigan, county of Kalamazoo, ss. T do solemnly swear
that I will support the Constitution of tlie I'nitecl States and the coniHitntlon
of this State, and that I will faithfully discharge the duties of the office of
inspector at the election held on Tuesday, the day of November, A. D.
1912, according to the best of my ability. So help me God. Jesse Wilkins.
Snbscrlbed and sworn to before me this 5th day of November, A. D. 1912.
Jesse Wilkins, Ch."
Q. He swore himself? — A. Yes, sir.
Q. What precinct was that? — A. That was the second precinct.
Q. Turn to the poll book, to the official oaths administered to the board of
election Inspectors. What is the flr.st oath and before whom was that sworn
to?— A. It was sworn to before C. L. Miller, city clerk.
Q. Following the certificate of the official oath, take the next one. Was that
sworn to before any official? — A. No, sir.
Q. Who was it sworn to before? — A. M. D. Wheeler.
Q. Is there any official designation as to what office M. D. Wheeler held? —
A. No, sir.
Q. Take the next oath. Who signed the next oath? — A. Subscribed before
M. D. W^heeler.
Q. Who signed It?— A. William C. Lewis.
Q. Before whom did he take the oath? — A. M. D. Wheeler.
Q. Is there any official designation as to who M. D. Wheeler was? — A. No, sir.
Q. Take the next oath. That is the oath of insi>ectors of election. — A. It Is
signed by Thomas Hogan.
Q. And sworn to before whom? — ^A. M. D. Wheeler^
Q. Is there any official designation as to who M. D. W^heeler was? — A. No, sir.
Q. The next oath Is what? — A. The oath of clerk of election.
Q. Who signed by?— A. Albert W. Ck)oley.
Q. Who does It purport to be sworn to before? — A. M, D. Wheeler.
Q. In there any official designation as to who M. D. Wheeler was? — ^A. No, sir.
Q. The next oath, what Is that? — A. That Is an oath of clerk of election
signed by Guy H. IXK!kwood and subscribed before M. I). Wheeler.
Q. Does It state what position he held? — ^A. It does not state.
Q. The next, what Is that? — ^A. Oath of clei'k of election.
Q. You had how many clerks In that precinct? — ^A. It appears they must have
had three
Q. Who is the third signed by?— A. By Otis \V. Corwln.
Q. It was sworn to before whom? — A. M. D. Wheeler.
Q. Is there any official designation as to who M. D. Wheeler was? — ^A. No, sir.
Q. The next oath, wlwit is^ that? — A. That — the next two oaths are the oaths
of gatekeepers of the election.
Q. The man who signed the jurat. Is there any official designation to either
of those oaths? — A. No, sir; there Is not, to either of them.
Q. Turn to the last certificate In the poll book and read the blank certificates
that are prepared there for the signatures of the board. — A. (Beatling : ) " Whole
number of voters voting, according to the i)oll list, was . W^hole number
of ballots co\inted on oi)enlng the ballot box was . Whole number of bal-
lots in excess of the voters voting and destroyed was . Whole number of
ballots corresponding with the i)oll list Is . Be it known that immedi-
ately upon closing of the polls. In accordance with the laws of the State of
Michigan, this board proceeded to compare the foregoing poll list with its
duplicate and that all mistakes found therein were corrected and that said poll
list is "
Q. Is that signed by anybody? — A. No, sir.
Q. That certificate In this book Is not signed?— A. No, sir.
Q. Do you know whether both ix)ll books were returned, one to the judge of
probate and one to the county clerk? — A. No, sir; I do not.
Q. Why can't you tell? — A. There was but one poll book returned to the clerk,
and the returns to the judge of probate were not oi)ened.
Q. Is it true that the returns from the third precinct to the board of county
canvassers, care of the judge of i)robate, have not been opened?— A. Yes, sir.
Q. They are unsealed and Intact? — A. Yes, sir.
Q. You have the returns liere before you, have you, from the third precinct
lo the board of county canvassers, care the judge of probate?— A. Yes, sir.
Q. Now. you were the clerk of the hoard of county canvassers?— A. Yes, sir;
I was.
520 CARNEY VS. SMITH.
Q. Did the board of county canvassers make up their canvass for the office
of Congressman from the third district of the State of Michigan. In Kalamazoo
County, from this third precinct without examining the returns sent to the
judge of probate from that precinct? — A. Yes, sir; they did.
Q. As clerk of that board are you able to state whether or not whether the
board of county canvassers did in fact examine those returns that were sent to
them from the third precinct to the judge of probate? — A. They did not examine
them; no, sir.
Q. Take the fourth precinct of Kalamazoo. I will ask you whether the
returns from the fourth precinct to the board of county canvassers were ever
examined or opened by the board of county canvassers after the election?— A.
From the judge of probate?
Q. Yes, sir. — ^A. No. sir; they were not.
Q. Are tiiose returns now In your hands? — A. Yes. sir.
Q. With the seals intact?— A. Yes, sir.
Q. Did the board of county canvassers in canvassing the vote for the office
of Representative in Congress in the third congressional district of the State of
Michigan for the election held . November 5. 1912, make out their canvass for
the fourth precinct withotit seeing or examining the returns from the fourth
precinct to the board? — A. They examined the returns made to the county
clerk's office, but not from the judge of probate's office.
Q. Did they see or could they Inspect the returns made from the fourth
precinct of the city of Kalamazoo made to the board in care of the probate
court? — ^A. No, sir.
Q. I hand you a poll book of the general election held in the fourth precinct
of the city of Kalamazoo, Mich., of the election of November 5 last. See \i
any of the official oaths — the persons whom they purport to have been sworn—
gave any official title to himself or designated himself as any officer. — A. He
did not, with the exception of the first oath.
Q. Read the first oath. — A. Oath of Inspector of election, signed by C. H.
(^111 and subscribed and sworn to before C. L. Miller, city clerk.
Q. What is the next oath?— A. The next oath Is an oath of inspector of elec-
lion, signed bv James M. Farrell and sworn to before C. H. Little.
Q. Any official designation?— A. No, sir.
Q. The next oath? — A. The rest are all signed In the same way, without any
title attached, and sworn to by the same man, without any official designation.
Q. Is that true of the gntekeepers? — A. They were all sworn by the same
party, without any official designation.
Q. Taking the tally-sheet book, under the designation of Representati^-e In
Congress, the third congressional district, what names do you find opposite
that title?— A. John M. C. Smith, Claude S. Carney, Levant L. Rogers, and
Edward N. Dlngley.
Q. What is that book : what does it purport to be? — A. It purports to be *
tally shoot of the sionoral oloction held on Tuesday, the 5th day of November,
1912, in the fourth nrecinct. third ward, of the city of Kalamazoo, Mich.
Q. Opposite the name of John M. C. Smith what do you find In the first col-
umn to the right?--A. "Total straight votes. 44."
Q. Total splits?— A. Total split votes. 100; total votes received, 144.
Q. Opi>08ite Claude S. Carney's name?— A. Total straight votes, 102; total split
votes, 02; total number of vcites roceive<l, 104.
Q. I will ask you whether there are any tallies opposite either of thoM
names? — A. No, sir; there are not.
Q. Is tlu.t so of the other cases, barren of any tallies? — A. Yes, sir.
Q. There is nothing to show how they were derived? .
Mr. Adams. I object to that as calling for the conclusion of the witness au'i
as incomi>etent. ,«wi?—
Q. Is there anything on the page to show how those numbers were acquired /—
A. No, sir; there is not. ^ vn
Q. Look at the tally-sheet book; do you find any tallies anywhere?— A. * •
sir; no tallies kept in this book.
Q. Take the sixth precinct. — A. The sixth precinct. ,
Q. Where is the poll book? Take the first oath, who was that sigaed by. * •
It is signed by Frank Flaitz.
Q. An Inspector of election? — A. Yes, sir.
Q. Who was that swoni to before? — ^^\. Before C. I>. Miller, city clerit- •
Q. What Is the next oath?— A. Oath of Inspector of election, signed by ^•
Ashley.
CARNEY VS. SMITH. 521
Q. How is the jurat? — ^A. It la not signed.
Q. Take the next oath, what is that? — A. Insi)ector of election, sigued by
J. D. Schnell and sworn to before Frank Flaitz.
Q. Any official character to show who Frank Flaitz was?? — A. No, sir.
Q. What is the next oath? — ^A. It Is the oath of inspector of election.
Q. Signed by whom? — ^A. W. A. Balch and sworn to before Frank Flaitz.
Q. Without any official character? — A. No official character.
Q. Take the next oath? — ^A. The next oath is oath of clerk of election, signed
by E. H. Fisher and sworn to before Frank Flaitz, without any official desig-
nation.
Q. The next oath? — ^A. The next oath is clerk of election, signed by L. J.
Losinger and sworn to before Frank Flaitz, without any official designation.
The oath of gatekeeper of election, signed by John Jabers and sworn to before
Frank Flaitz, without any official title. Lewis Fleckensteln was the gate-
keeper. Oath of inspector of election, signed \by O. W. Brundage and sworn to
before . This oath reads: " State of Michigan, county of Kalamazoo, w:
I do solemnly swear that I will support the Constitution of the United States
and the constitution of this State, and that I will faithfully discharge the duties
of the office of at the election held on Tuesday, the 5th day of November,
A. D. 1912, according to the best of my ability. So help me God. O. W.
Brundage. Subscribed and sworn to before nie this 5th day of November. A. D.
1912,** and sworn to before Frank Flaitz, without any official designation.
Q. Who signed it?— A. Frank Flaitz.
Q. Who signed the oath?— A. O. W. Brundage.
Q. Who signed the certificate In the back part? — A. That was Frank Flaitz
and C. H. Ashley, W. A. Balch, O. W. Brundage, and J. B. Smith.
Q. Describe this book. — ^A. This is the tally-sheet book of the general elec-
tion held on Tuesday, the 5th day of November, A. D. 1912. sixth precinct,
second ward, city of Kalamazoo, Kalamazoo County, Mich.
Q. Turn now to the names marked for Representatives in Congress, third
district, and read the candidates' names. — A. .John M. C. Smith. Claude S.
Carney, Levant h. Rogers, and Edward N. Dingley.
Q. State whether opposite the name of John M. C. Smith — what are the
figures In the right-hand column? — ^^V. Total straight votes, 31; total si)lit votes,
115; total votes received, 140.
Q. Opposite the name of Claude S. Carney? — A. Total straight votes. 76:
total split votes, 99; total votes received, 175.
Q. Are there any tallies on the ])age? — A. No, sir.
Q. Opposite those names? — A. No, sir.
Q. Is there anything in that record to show how they derived those nuui-
hers? — A. Xo, sir; there is not.
Q. Now, tlie returns from this precinct in Kalamazco — did the board of
county canvassers examine the returns that were sent to the board in care of
the Judge of probate from the sixth precinct? — A. They did not.
Q. Are the returns from that precinct sent to the judge of probate in j'our
hands now? — ^A. They are.
Q. Are they still sealed? — A. They are still sealed.
Q. Did they make up the canvass on the office of Representative in Congress
without oi)eulng or examining the returns from that precinct sent to the board
of county canvassers in care of the Judge of probate? — A, They did.
Q. Take the seventh precinct and look at the tally sheet. What book have
you there, witness? — A. That is the tally-sheet book of the general election held
on Tuesday, the 5th day of November. A. D. 1012, In the seventh pre<'inct of
the third ward, city of Ks»l; mjiz-'o. Kj.Imh; Z(m> rtuuiiy. st le of .\ii.-liij;-in.
Q. Turn to the votes for Representative in Congress and read the names of
the candidates. — ^A. John M. C. Smith, Claude S. Carney, Levant L. Rogers, and
Edward N. Dingley.
Q. Opposite the name of John M. C. Smith, what do you find? — A. Total
straight votes, 35; total split votes, 122; total votes received, 157.
Q. Opposite the name of Claude S. Carney, what do you find? — A. Total
straight votes, 75; total split votes, 121 ; total votes received, 1116.
Q. Are there any tallies in that book to show how they obtained those
figures? — ^A. No, sir; there is not.
Q. Take the poll book from that ward, that precinct; what have you there? —
A. That Is the iwll book of tluit precinct, third ward.
Q. Take the official oaths; what Is the first one you find there? — ^-\. The oath
of Inspector of election.
522 CARNEY VS. SMITH.
Q. Who Is that p^gnecl by?— A. B. O. Bush.
Q. Before whom was it sworn? — A. C. L. Miller, city clerk.
Q. Take the balance of the oaths for inspectors of election and gatekeepers;
is the official character of the one w^ho administered the oath set down in any
one of those oaths? — A. No, sir; it is not.
Q. What character of office on that board did Mr. Walton hold ; take the oaths
i^igned and the designation to the official oaths? — ^A. Mr. Walton, I don't see
that, I don't
Q. Does his name appear in any of those oaths connected with the board at
all? — A. No, sir; it does not.
Q. Just read who was the first inspector of election. — A. The first inspector
is B. O. Buflh.
Q. Who next Is designated as inspector? — ^A. W. E. Geary.
Q. Who next?-^A. James B. Chase.
Q. Who next? — ^A. The next is not signed at all ; it purports to be sworn to by
B. O. Bush.
Q. Any signature under the name there? — ^A. No, sir; no name at all.
Q. Who next?— A. Hugh W. Nelson.
Q. What is that, clerk of the election? — A. Yes. sir.
Q. What is the next? — ^A. Clerk of election.
Q. Who?— A. James Prudell.
Q. What next?— A. Arthur Warder.
Q. Sworn to before whom? — ^A. B. O. Bush.
Q. Is there any designation of the official character of B. O. Bush? — A. Xo.sir.
Q. Is there anything in the oath showing what official character Warder was
fllling?— A. No, Sir.
Q. Turn over to the next; what is the next oath? — A. Oath of gatekeeper of
election.
Q. Who was that? — A. Charles Henshaw. I think; I am not sure.
Q. Who was the next one? — A. George T. Brown, I think It is.
Q. Now turn to the certificate on the back of the poll book ; who signed that
certificate? — ^A. B. O. Bush, W. E. Geary, James B. Chase, and J. E. Walton.
Q. Subscribed as what — what do they sign themselves as? — ^A. Board of elec-
tion inspectors of the election held Tuesday, the 5th day of November. A. D.
1912. third ward, Kalamazoo.
Q. Do yon find this man who signs there as one of the board of inspectors:
do you find his nnme there anywhere in that record as l>eing connected witb
the board of election: that is, J. E. Walton? — A. No, sir; I do not.
Q. Turn to the ninth precinct. — Yes. sir.
Q. Tnke the poll hook first.- A. Foil book of the general election held on
Tuesday, the 5th day of Noaember, A. I). 1012, city of Kalamazoo, ninth pre-
cinct, fourth ward, county of Kalamazoo, State of Michigan.
Q. Are any of the official oaths filled out or signed in that book at all?— A.
No, sir: not one.
Q. Describe the book you now hold in your hand. — A. It is the tally-Hheet
l)ook of the general election held on Tuesday, the 5th day of November, A. D.
3912. city of Kalamazoo, in the ninth precinct of the fonrth ward.
Q. Turn to Representative in Congress, third congressional district: what
names do you find opiwsite? — A. John M. C. Smith, Claude S. Carney. Levant L
Rogers, and Edward N. Dlngley.
Q. Turn to John M. C. Smith's name: what figures do you find opposite his
name?— A. Total straight votes, 53: total split votes. 98; total votes re-
celve<l, 151.
Q. OpiKisite the name of Claude S. Carney?— A. Total straight. voteJ^. "fi:
total split votes, 99: total votes received, 175.
Q. Are there any Interlineations opposite the name of Claude S. Carney?—
A. Yes. sir: "total split votes" has been erased.
Q. Do you know how that was changed: can you tell from that? — A. I fhlnk
Ifhas been erased with a knife.
Q. Can you tell what the original figures were? — A. No, sir; I can not.
Q. Are there any tallies on that pnge or any other way by which .von can
(ell how they obtained those figures that are set oi^ivisite the names of those
candidates? — A. No, sir: I can not.
Q. Are there any tallies on the page at all? — A. No, sir.
Q. What book is this?— A. That is the statement book of the general election
held on Tuesday, the 5th day of November. A. D. 1912, at Kalamazoo, ni^"^
precinct, fourth ward.
CARNEY VS. SMITH. 523^
Q. Turn to the statement of the votes — the whole luiiiiber of votes given'
for Representative in Congress — what do yon find there, how much was it? — A.
The whole number of votes given for Represwitative in Congress — district wa»
589 in writing and 588 in figures.
Q. It was first written what? — A. First it was evidently written 588.
Q. Is there a line drawn through that 8? — A. Tes. sir; crossed out and a 9
written after.
Q. What are the figures opposite? — A. Five hundred and eighty-eight.
Q. Taking the name of John M. C. Smith — what is written in opposite his
name? — A. One hundred and fifty-one and 151 in figures.
Q. Now, take the name of Claude S. Carney — what is written opposite that? —
A. One hundred and seventy-five.
Q. What was wTitten before the "5"?— A. I thinlv 174 and the *'4**
crossed out.
Q. And "5" aften^-ards put in? — A. Yes, sir.
Q. Is there any interlineation or change in the figures in the right-hand col-
iiDin? — ^A. I think there is. I think originally It was 171 changed to 175; I
think a *' 4 " was put in first then put over the top ; it was 174 and was
changed to 175.
Q. Now, in this precinct are there any returns to the Judge of probate from
that precinct? — ^A. I think so.
Q. Were they ever unsealed or opened or laid before the board of county can-
vassers?— A. They were never opened.
Q. Did the board of county canvassers canvass the votes from that precinct
for the oflSce of Representative in Congress without examining the returns sent
to that board from this precinct ? — A. They did.
Q. In care of the judge of probate? — A. Yes, sir.
Q. The tenth precinct, turn to the poll book, what have you there? — ^A. The
poll book of the general election held on Tuesday. November 5, 1912, tenth pre-
cinct, fourth ward, city of Kalamazoo.
Q. Turn to the official oaths there; how many oaths of insi)ectors of election
do yon find there? — ^A. There seems to be five.
Q. Who was the first one; who signed first? — A. It is signed by Albert Ten
Bussehen.
Q. Before whom was it sworn? — ^A. Before C. L. Miller, city clerk.
Q. Take the next oath. — A. Frank B. Godfrey signed that.
Q. Before whom was it signed? — A. Albert Ten Bussehen.
Q. Is there any official designation given to Mr. Ten Bussehen? — A. No, sir.
Q. The next ; who signed that?— -A. I think Almon T. Wells.
Q. Before whom was it sworn ? — ^A. Albert Ten Bussehen.
Q. Any official character to his name? — A. No, sir.
Q. -Who next? — A. The next one is signed by Paul Schrier and sworn to before
Albert Ten Bussehen, without any official character.
Q. Read the oath. — ^A. (Reading:) " State of Michigan ,county of Kalamazoo,
ss. I do solemnly swear that I will support the Constitution of the United
States and the constitution of this State, and that I will faithfully discharge the
duties of the office of clerk of the election held on Tuesday, the 5th day of
November, A. D. 1912, according to the best of my ability. So help me God.
Peter T. Schwartz." Sworn to before Albert Ten Bussehen. without any official
character.
Q. What is the next? — A. The oath of clerk of election.
Q. Who signed it? — A. Conrad Kreellng, and sworn to before Albert Ten
Bussehen, without any official title.
Q. The next? — ^A. The oath of the clerk of election.
Q. Who was that? — ^A. It is signed by William H. Donsnuk.
Q. Sworn to before whom? — A. Albert Ten Buaschen, without any official title.
Q. Are the oaths to the gatekeepers sworn to before anybody without any
official character? — ^A. No, sir; they are not.
Q. Turn to the last certificate in the poll book: by whom was that signed? —
A. That Is signed by Albert Ten Bussehen, Paul Schrier, Peter T. Schwartz,.
Frank B. Godfrey, and A. T. Wells.
Q. How many inspectors were there? — ^A. There are five who signed this.
Q. Now, what is this oath here? — ^A. It reads, " Oath, Inspector of election.'
Q. That heading? — ^A. It is headed at the top of the page.
Q. What was it originally? — A. Originally it was "Oaths to clerks of election."
Q. What has been erased? — A. The \^ord "Clerk" has been crossed out and
the word " Inspector " written above it.
♦»
624 CARNEY VS. SMITH.
Q. That is the hendiuj; of the oath siKned by Peter T. Schwartz? — A. Yes, sir.
Q. Take the tally book. — A. This is the tally-sheet book of the general elec-
tion held ou Tuesday, the 5th day of November, A. D. 1912, at the tenth pre-
cinct, fourth ward, city of Kalamazoo.
Q. Turn to the place where is recorded the Representatives in Congress,
third district; what candidates do you find there recorded? — ^A. John M. C.
Smith, Claude S. Carney. levant I.. Uojjers. and Edward X. Dingley.
Q. Oi)poRlte their names do you find certain figures in the right-hand
column? — A. OpiMsite the name of John M. C'. Smith I find, total straight votes,
44; total split votes, 71 ; total votes n^ceived, 115. Opposite the name of Claude
8. Carney, total straight votes, 71; toUil split votes, 68; total votes received, 139.
Q. Are there any tallies in that book opposite those names? — A. There isn't
any.
Q. Is there anything there to show how they obtained those figures opposite
those names? — A. No, sir. -
Q. Of each candidate? — A. No. sir.
Q. Did this precinct, the tenth precinct of the city of Kalamazoo, forward
any returns to the board of county canvassers in care of the Judge of probate?—
A. Yes, sir; they did.
Q. Did the board of county canvassers examine those returns? — ^A. They did
not.
Q. Did they canvass the result of the election in this precinct for the office
ot Congressman without referring to or seeing the returns from that precinct?—
A. Yes, sir.
Q. Are those returns now in your hands, sealed? — ^A. Yes, sir.
Q. All sealed, you say? — A, Yes, sir.
Q. Sealed and intact? — A. Yes, sir.
Q. What l>ooks were returned to the county clerk from this precinct?— A.
There was a poll book, a tally-sheet book, and a statement of the votes.
Q. Was there any statement book returned to the board of county canvassers,
care of the probate judge? — ^A. No, sir; there was not
Q. What books did ,that precinct return to the board of county canvassers In
care of the judge of probate? — A. The poll book and the tally-sheet book.
Q. And to the county clerk they sent what? — A. Poll book, a tally-sheet booki
and a statement of the votes.
Q. Taking the statement book of the statement of votes cast for Congreesmen,
do you find any interlineations in the bending, " Whole number of votes cast
for Representatives in Congress in the third district" is how many? — ^A. Three
hundred and forty-six.
Q. Opfwsite the name of John M. C. Smith, what do you find written out?— A.
Sixty-three.
Q. How many do you find extended in figures? — ^A. Sixty-three.
Q. Before the nnnie of Claude S. Carney, what do you find first written?— A.
The first that is written Is 70 or 71. I think, and it has l)een crossed off and the
word " eighty " written afterwards.
Q. What do you find in tlie figures extended? — A. In the figures extended
I think it has been 71, and they have been erased and changed to 80.
Q. Changed from 71 to «0?— A. Yes, sir: I think so.
Q. Take the poll book — what book Is that you now have in your hands?— A.
It Ik the poll book of the general election held on Tuesday, the 5th day of
November, A. D. 1912. at the eleventh precinct, in the fourth ward of the city
of Kalamazoo.
Q. I will ask you if the officlnl oaths purport to be subscrlbetl by the officers
of that electUm board — if the person before whom those oaths we.re taken or
purport to be sworn gives the official character or designation? — A. They do
not. with the exception of the first oath, which is the oath of the Inspector of
election.
Q. Who Is that signed by?— A. C. L. Miller, city clerk.
Q. After that is there any oflicial designation as having administered any
oath? — A. No, sir; there Is not.
Q. Now, ou the first jurat, which was signed by C. L. Miller, city clerk, to
that jurat is there any date given? — A. No date In there; no, sir.
Q. Does the book show when that oath purports to have been administered?—
A. No, sir; it does not.
Q. What book do you hold now ; I refer to the tally sheet book of the eleventh
prerinct again, and I will ask you opposite the title ** Office of Representative
in Congress, third district," the names of the candidates. John M. C. Smith,
OABNBT VS. SIOTH. 526
Claude S. Caraey, Levant L. Rogers, and Edward N. DIngley, is that tally kept
in ink or lead pencil?— A. It is kept in lead pencil.
Q. The right-hand figures are kept in ink?— A. The figures are kept in ink.
Q. Opposite the name of John M. C. Smith what figures do you find? — ^A. Oppo-
site the name of John M. C. Smith, total straight votes, 51 ; total split votes, 12 ;
total votes received, 63. Opposite the name of Claude S. Carney, total straight
votes, 62 ; total split votes, 18 ; total votes received, 80.
Q. Now, Just count up those tallies opposite Claude S. Carney's name and see
if they agree in number with the vote or the figures in the right hand column? —
A. They do not agree; the tallies show 53 and the figures show 51. The lead-
pencil tally shows 53 ballots and the total votes show 53.
Q. The tallies opposite Claude S. Carney's name? — A. The total number of
tallies show 80 and the total votes received show 80 in figures.
Q. Take the twelfth precinct. — ^A. This is the i)oll Iwok of the general election
held Tuesday, the 5th day of November, A. D. 1912, at the twelfth precinct in
the city of Kalamazoo.
Q. Does that book contain or purport to the oflicial oaths that were provided
for the board of election inspectors? — ^A. Yes, sir; it does.
Q. By whom is the first one signed? — ^A. By B. F. Van Blarcom.
Q. Before whom was it sworn? — ^A. C. L. Miller, city clerk.
Q. The balance of the oaths, was the officer or person before whom those
appear to be sworn given any ofiScial designation of his character to each par-
ticular oath? — ^A. They do not.
Q. What oaths are there that appear in that way? — ^A. The oaths of the in-
spectors of election; no oath to the inspector of election; oath to the clerk of
election ; none as to the oath to the clerk of election and the oath to the clerk of
election.
Q. Three clerks? — ^A. Yes, sir; and two oaths to the gatekeepers.
Q. Read the, first oath to the gatekeeper. — A. (Reading.) " State of Michigan,
county of Kalamazoo, ss. I do solemnly swear that I will support the Constitu-
tion of the United States and the constitution of this State, and that I will
faithfully discharge the duties of the office of gatekeeper of the election held
on Tuesday, the 5th day of November. A. D. 1912, according to the best of my
ability. So help me God. W. H. Shakespeare." Sworn to before B. F. Van.
Blarcom. without any official capacity.
Q. Take the thirteenth precinct; how many tally sheets were returned to the
county clerk? — ^A. One.
Q. Were any returned to the probate court? — ^A. One tally sheet was ^turned
to the judge of probate.
Q. And one poll book returned to the probate court? — A. Yes, sir.
Q. Is there any certificate to that? — A. No, sir.
Q. Did the board of county canvassers notify this precinct to return the state-
ment book to it? — A. I don't remember that they did.
Q. Was there ever any further return made from this precinct? — ^A. I don't
remember that there was.
Q. From the eleventh precinct — did they send for any statement' book from
the eleventh; that is, did the board of county canvassers? — ^A. I couldn't say;
my recollection is they sent for the statement book from one of the precincts,
but I don't remember what precinct it was.
Q. Did they keep the book ? — A. I don't remember as to that.
Q. You don't find it in the files, do you?— A. No. sir; I don't find it in the
files.
Q. Take the tally sheet book from this thirteenth precinct, what have you
there? — A. This is the tally sheet book from the thirteenth precinct of the fifth
ward of the city of Kalamazoo.
Q. How many tallies in that book after the officers? — ^A. Well, part of the
tally blank is left.
Q. Do you find any opposite the name of Representative in Congress, third
district? — ^A. I do not; there are no tallies there.
Q. Is there anything on the book to show how they arrived at those figures
you find in the right-hand column? — ^A. No, sir.
Q. Take the statement book for the office of Congressman for the third con-
gressional district — are there any interlineations or erasures? — ^A. Yes, sir.
Q. What are they? — A. The whole number of votes given for Representative
In Congress, third district, was seven
Q. Is there something interlined, then scratched out?— A. I should say orig-
inally 775, and it has been crossed out
526 CABNEY VS. SMITH.
Q. What was written iu finally? — ^A. Seven hnndred and flfty-four.
Q. What do you find opiM)site the name of John M. C. Smith In words?— A.
Opposite the name of John M. C. Smith — I don't know what it is; it looks like
180.
Mr. Adams. There is not an H in the whole business, but go ahead.
Q. It is indistinct? — A. Rather Indistinct; yes, sir.
Q. As to the total, where the vote is totaled at the lower part, is it plain
what the figures are? — ^A. It is not very plain; there has been an Interlineation.
Q. The i)oll book — the certificate part — is not signed by the board of inspect-
ors; who do you find that signed by? — A. Tiie certificate is signed by Ernest
W^ise, Mr. Gill. Mr. Ebersteiu, and Mr. Warder, board of election inG9)ector8.
Q. Turn to the official oaths — who signed those as clerks of the election?— A.
L. Roy Darling, E. H. Kimball, Randall Eberstein, and Jay Van Warder.
Q. How many inspectors of election did they have according to this record?—
A. Four.
Q. Who were they V— A. Ernest Wise. Earl I^vett, Richard H. Elwell, and the
fourth is C. L. Gill.
Q. Now, who are the insiiectors who signed the certificate? — A, Ernest Wise,
e. L. Gill, Randall Ebersteiu.
Q. They were clerks, were they not? — A. The last two; yes, sir.
Q. Only two men who signed that purport to be inspectors of election?— A.
That is all.
Mr. Adams. I object to that: it shows for itself; and move to strike out the
answer as the conclusion of the witness.
Q. IHvo: who were they? — A. Eberstein and Van Worden.
Q. Were tliey insj»ectors of election or clerks of election? — A. Mr. Eberstein
♦signed the oath as clerk of the election and Mr. Van Worden signed it as clerk
of election ; signed the oath.
Q. As far as this record shows, neither of those men were Inspectors of elec-
tion?— A. No. sir.
Q. When those officers you have just mentioned or any of them signed their
official oaths before whom were they sworn, did he sign his name officially or
designate himself in any way as an officer? — A. He did not; no, sir; with the
exception of the first one, Ernest Wise, that was sw^om to before C. L. Miller,
<?ity clerk.
Q. The fourteenth precinct — what have you In your hand there? — A. State-
ment of votes at the general election held on Tuesday, the 5th day of November,
A. D. 1912. Kalamazoo, fourteenth precinct of the fifth ward, city of Kalamaaoo.
Q. Turn to tlie certificate attached to the statement of votes, and I wish
you would read that? — A. (Reading:) "We do hereby certitj that th« fore-
going is a correct statement of the votes given in the fourteenth precinct of
the fifth ward, county of Kalamaasoo, State of Michigan, at the general election
holden on Tuesday, the 5th day of November, A. D. 1912. Henry A. Davis,
Inspector of election."
Q. Was he all the person who signed that certificate? — A. Yes, sir.
Q. That is all the certificate of the votes cast in that precinct? — ^A. Yes, sir.
<}. Was that certificate received by the county clerk of that precinct?—
A. Yes. sir.
Q. Turn to the i)oll book of that precinct? — ^A. Poll book of the general
election held on Tuesday, the 5th day of November, A. D. 1912.
Q. That is the one you received? — ^A. Yes, sir.
Q. Turn to the first page of the official oaths, do you find there any oath
of office? Take the first one, what is that? — ^A. That is the oath of an inspector
of election.
Q. By whom signed? — A. Roland K. Falrchilds.
Q. Before whom was it subscribed and sworn? — ^A. C. L. Miller, city clerk.
Q. Any official designation to the jurat? — ^A. No, sir.
Q. By whom is the next oath signed? — A. Herbert E. Conlan.
Q. Does it purport to have been sworn to before any officer? — A. No, sir.
Q. The next one? — ^A. H. L. Schroeder.
Q. Does it purport to be signed by any officer? — A. It is not
Q. Take the next one, by whom signed? — ^A. II. M. Collins.
Q. Before whom does it purport to be signed? — ^A. Nobody.
Q. What oath is that?— A. Oath of election inspector of William C. Fisk.
Q. Any jurat? — A. No, sir.
Q. The next oath? — ^A. The next is the oath of clerk of election and is
signed by George C. Thayer.
• _
CARNEY VS. SMITH. 527
Q. Ig It sworn to before any officer? — A. It Is not.
Q, The next? — ^A. The oath of gatekeeper at the election. That is signed by
William H. Winter.
Q. Is it sworn to before any officer? — ^A. It is not.
Q. Take the next? — ^A. That is the office of gatekeeper at the election of
0. C. Slack.
Q. Is that sworn to before any officer? — ^A. It is not
Q. The next? — ^A. That is the oath of Inspector of election, by Henry A.
Davis.
Q. Is that Bwom to before any officer? — ^A. No. sir.
Q. What is the next?— -A. That is not signed.
Q. Witness, take the fourteenth- precinct, was that returned to the board of
connty canvassers in care of the Judge of probate? — A. Yes, sir.
Q. Has that ever been opened? — ^A. It has not.
Q. The seal still intact on it?— A. Yes, sir.
Q. Did the board of county canvassers canvass the vote for the office of Rep-
resentative in Congress from the fourteenth precinct without examining or
referring to the returns which had been made to that board from the fourteenth
l>reelnct?— A. They did; yes, sir.
Q. The poll book from that ward was not filled out at nil ; the certificate is
blank?— -A. The certificate is blank.
Q. Take the township of Texas. I will ask you now if the township of Texas
made a return to the board of county canvassers in care of the judge of pro-
bate?— ^A. I don't think they did; no, sir. I don't seem to have it here» and I
have got all the returns here as fnr ns I know, and I do not see it here.
Q. Have you the statement b(x>k? — ^A. I have the statement book from the
township of Texas.
Q. Look at tliat and see how It was kept, whether in ink or not? — X. It was
kept in ink.
Q. How is it signetl? — A. It is signed in lend pencil. The certificate is signed
by William Walker and Charles Ren and William J. Campbell.
Q. The entire record Is in lead pencil? — A. The entire record is in lead pencil.
Q. Taking the official oaths in the i)oll book. What book is that you have? —
A. This is the poll book from the township of Texas.
Q. What election? — A. The general election held on Tuesday, November 5,
1ftl2.
Q. Turn to the official oaths In the record and see whether written in i)encil
or ink. — ^A. They are all written In pencil.
Q. Take the first oath — before whom was that sworn? — A. Sworn to before
William Wallen, I think.
Q. Are nny of the oaths subscribed by anyone who affixes any official desig-
nation to his name? — A. There is not ; no, sir.
Q. How many of the official oaths are filled out in that township? — A. Seven.
Q. Are any of those seven oaths of which the official character is given of the
person before whom the oath purports to have been sworn? — A. There is not;
no. sir.
Q. Brady Township, first precinct. Did the first precinct of Brady Township
mnke return to the board of county canvassers, care of the judge of probate? —
A. Yes, sir.
Q. Have those returns ever been opened? — A. No, sir; they have not.
Q. The board of county canvassers canvasse<l the vote for Congressman from
that precinct without reference to those returns or opening tliem? — A, They
did; yes, sir.
Q. Brady Township, second precinct. What do you hold in your hand now? —
A. The poll book of the general election held on Tuesday, the 5th day of
November, 1912, second precinct, towniship of Brady, county of Kalamazoo,
State of Michigan.
Q. Turn to the official osiths. Do you see there what imriwrts to be the
blanks prepared for the board of Insi)ectors to sign? Take the first blank oath
of Inspectors of election — who is that signed by? — ^A. By W. J. Reese.
Q. Is that sworn to before any officer? — A. It is not
Q. Take the next — who is that signed by? — A. A. W. Potter.
Q. Following his name reads what? — A. Sworn to before me this 5th day of
November, 1912. W. J. Reese.
Q. Any official character? — A. No, sir.
628 CARNEY VS. SMITH.
Q. The next?— A. Tho next l8 for iuspector of election, signed by W. H.
Beebe. Subscribed jind sworn to before me this 6th day of November, A. D.
aia2; signed by W. J. Yutes.
Q. Is there any official designation?— A. No, sir. The next Is the oath of
the clerk of election.
Q. That is signeil by whom?— A. That Is signed by R. B. Irvine. Subscribed
and sworn to before uie this 5th day of November, A. D. 1912, by W. J. Yates.
Q. Any official designation?— A. Xo. sir.
Q. The next one?— A. That is the oath of clerk of election, signed by D. 0.
Ooldsniith. Subscril^ed and swoni to before me this 5th day of November,
A. D. 1912, W. J. Reese.
(I Without any official designation?— A. Without any official designation.
Q. What is the next oath?— A. That is the oath of gatekeeper at the election,
signed by Lewis Riggles. Subscribed and sworn to before me this 5th day of
November, A. D. 1912, W. J. Yates. The next Is the oath of gatekeeper at the
election, and it l(K»k8 like George Huntington. Sworn and subscribed to before
me this 5th day of November, A. D. 1912, signed by W. J. Yates.
Q. Now, take Ross Township. Take Ross Township and the returns to the
judge of probate of the election held on Tuesday, the 5th day of November,
A. D. 1912, were those returns oi)enetl or examined by the board of county
canvassers? — A. No, sir; they were not.
Q. So the votes for Congressman at that election were canvassed without
examining or o|)ening the returns made to that board by the township of
Ross? — ^A. Yes, sir; it was.
Q. Do you hold those returns in your hand? — A, Yes, sir.
Q. They are st»«le<l and intact? — ^A. Yes, sir.
Q. What book have you there? — A. Poll book of the general election held on
Tuesday the .5th day of November, 1912, at Augusta, in the township of Roes,
Kalamazoo County, Mich.
Q. Look at the last certificate In the book? — A. The last certificate Is left
blank.
Q. What is that certificate? — A. Whole number of electors voting according
to the poll list . Whole number of votes counted on opening the ballot
box was . Blank ballots In excess of the number of voters voting and
destroyed was . All left blank. Be It known that immediately upon
closing the i>o11k in accordance with the laws for the State of Michigan, this
board proceeded to comi)are the foregoing poll list with this duplicate, and
that all mistakes found were corrected, and said 11 lists were agree.
Q. Take Cooper Township, did that township make a I'etum of the general
election held in that township on the 5th day of November, 1912, to the judge
of probate? — A. Yes, sir; they did.
Q. Did the board of county canvassers examine those returns when they
canvassed the votes for Congressman from that precinct? — ^A. They did not.
Q. Have you in your hands those returns? — A. Yes, sir.
Q. Have they ever been opened? — A. No, sir.
Q. Are they sealed and intact? — ^A. They are: yes, sir.
Q. Ix)ok at the poll book. Did the board of county canvassers canVass tbe
votes for Congressman from the township of Cooper without opening or exanain-
Ing the returns sent to that board from the township of CJooper? — A. They did;
yes, sir : from the judge of probates.
Q. Wakeshma Township. W^hat is that?— A. The poll book of the general
election held on Tuesday, the 5th day of November, 1912, at Fulton, in the
township of Wakeshma, county of Kalamazoo, Mich.
Q. Turn to the first page and take the second oath and read It? — ^A. Oath of
inspector of elec^tion. ** State of Michigan, county of Kalamazoo, as. I do
solemnly swear that I will supix)rt the Constitution of the United Statee
and the constitution of this State, and that I will faithfully discharge the
duty of the office ot inspector of election held on Tuesday, the 5th day of
November, A. I>. 11H2. according to the best of my ability. So help me God."
Signed by A. R. Mosgrove, I would call it.
Q. Read the jurat/— A. " Subscribed and sworn to before me this 5th day of
November, A. I>. 1912." Signed by Otis Cramer.
Q. Is there any official character designated? — A. There is not; no, sir.
Q. Take the next oath, what is that? — A. Insi)ector of election.
Q. Who is that 8lgne<l by? — A. Ellas France.
Q. Is there any official character by the person who it purports to be sworn
to before? — A Tliere is not; no, sir.
CARNEY VS. SMITH. 529
Q. Take the oaths of the g5itekeei)€rs. How many are there of them? — ^A.
There are two.
Q. Who signed the first one? — A. Charles H. Sweet.
Q. Any jurat? — A. " Subscribed and sworn to before me this 5th day of
November, A. D. 1912/' Signed Otis Cramer.
Q. Who is the next one signed by? — A. It is signed by A. R. Mears and
sworn to before Otis Cramer.
Q. Is there any official character or designation of the person who adminis-
tered those oaths? — ^A. No. sir; In neither case.
By Mr. Fellows:
Q. 1 ask yon what this book is that I show you? — A. That is the record of
the board of election inspectors.
Q. Of what county? — A. Kalamazoo County.
Q. What election?— A. Of the election held on the 5th day of 5»ovember, 1912.
Q. I show you page 12 thereof and ask you if on that page you find the votes
on candidates for Congress in the third congressional district? — A. Yes, sir;
I do.
Q. I ask you to read tlie vote, so far as John M. C. Smith and Claude S.
Carney are concerned, from the following precincts: Comstock, second pre-
cinct?—A. John M. C. Smith received 486 and Claude S. Qimey received 636.
Q, The township of Cooi)er? — A. The township of Cooper, John M. C. Smith
received 42 and Claude S. Carney received 70.
Q. Kalamazoo Townshiji? — A. John M. C. Smith received 108 and Claude S.
Carney received 117.
Q. Township of Ross? — A. John M. C. Smith received 84 and Claude S.
Carney received 106.
Q. Township of Schoolcraft, first precinct? — A. John M. C. Smith received
126 and Oaude S. Carney received 133.
Q. Township of Texas? — ^A. John M. C. Smith received 55 and Claude S.
Carney received 66.
Q. Wakeshma? — A. John M. C. Smith received 80 and Claude S. Carney
received 122.
Q. Alama?— A. John M. C. Smith received 59 and Claude S. Carney re-
ceived 82.
Q. Township of Brady, first precinct? — ^A. John M. C. Smith received 68 and
Claude S. Carney received 79.
Q. Township of Brady, second precinct? — ^A. John M. C. Smith received 41
and Claude S. Carney received 45.
Q. Township of Charlesttm? — ^A. John M. C. Smith received 52 and Claude S.
Carney received 73.
Q. City of Kalamazoo, first precinct? — A. John M. C. Smith received 93 and
Claude S. Carney received 140.
Q. City of Kalamazoo, second precinct? — ^A. John M. 0. Smith received 124
and Claude S. Carney received 193.
Q. City of Kalamazoo, third precinct? — ^A. John M. C. Smith received 113 and
Claude S. Carney received 122.
Q. City of Kalamazoi), fourth precinct? — A. John M. C. Smith received 144
and Claude S. Carney 194.
Q. City of Kalamazoo, sixth precinct? — A. John M. C. Smith received 146
and Claude S. Carney received 175.
Q. City of Kalamazoo, seventh precinct? — A. John M. C. Smith received 157
and Claude S. Carney received 196.
Q. City of Kalamazoi». ninth precinct? — A. John M. C. Smith received 151
and Claude S. Carney received 175.
Q. Kalamazoo City, tenth precinct? — A. John M. C. Smith received 115 and
Claude S. Carney received 139.
Q. City of Kalamazoo, eleventh precinct? — A. John M. C. Smith received 63
and Claude S. Carney received 80.
Q. City of Kalamazoo, twelfth precinct? — A. John M. C. Smith received 73
and Claude S. Carney received 122.
Q. City of Kalamazoo, thirteenth precinct? — ^A. John M. C. Smith received
160 and Claude S. Carney received 250.
Q. City of Kalamazoo, fourteenth precinct? — ^A. John M. C. Smith received
100 and Claude S. Carney received 179.
286—13 34
530 CARNEY VS. SMITH.
Q. Those votes you have j?iven ninde up the total vote returned to the socre-
tarv of state from this county? — A. Yes. sir.
Mr. Maynari). You receivod the returns', did you, from those different voting
precincts of the county; they were sent to you after this election?
A. Yes, sir.
Q. Were those returns received all intact?— A. No. sir: they were not.
Q. AVhnt C4)nditlous were some of the returns that you received in?— A.
Well, 1 couldn't rememb£»r detinitely; but I remember of seeing «me that the
seal was broken— what we call mail iK)uches: the seal was broken — I don't
remember what towniship that was from.
Q. You mean these lar^i* envelopes that the i-eturns were cN)ntained in?—
A. Y'es, sir.
Q. Was there any more than the one? — A. I tlon't re(*ollect of only one.
Q. Do yon remember what pre(*inct that was from? — A. No, sir; not at the
present tinie; at that time I knew, but I don't remember now what precinct
that was from.
(Whereupon the hearing was ttljounied until 1 o'clock p. m., Wednesday,
April 9, 1913.)
Wednesday, April 9. 1913. — I O'Clock p. m.
EDWARD F. CURTENIUS was recalled for cross-examination by Mr. Adams,
as follows:
Q. I suppose you had the Alamo ih>11 bo()k. Referring to Exhibit 74. the
IX)11 book of Alamo Township, to which you referred yesterday In your testi-
mony on direct, I ask you to look at the signature, Robert J. Ooshun, to
the jurat, to the oath ma<le by A. I*eck, and see whether or not that. In your
Judgment, Is the same signature of Robert J. Coshun as appears on the first
page of this exhibit and the Robert J. Coshun who signed the oath of inspector?
Mr. Maynard. Objected to as Incompetent. Irrelevant, and immaterial.
Mr. Adamh. I am going to .show that the lnspe<*tor swore that man, as he
had a right to under the statute.
A. I think it Is the same signature.
Q. Robert J. Coshun ajipears to have administered the oath to the gate-
keeper. A. Peck, to this exhibit? — A. Yes, sir.
Q. Robert J. Coshun api)e}irs by this exhibit to have made an «)ath there to
act as Inspector of the election? — ^A. Yes, sir.
Mr. Maynard. Objected to as incompetent and Inunaterial.
Q. Robert J. Coshun appears by this exhibit to have been sworn by A. Peck?
Mr. Maynard. ()bjecte<l to as incompetent and Immaterial.
Q. Is that true? — A. Yes, sir.
Q. And the certificate that Robert J. Coshun signed to the oath to act as
Inspector is the first certificate in this book. lsn*t it? — ^A. Yes, sir.
Q. And the certificate of A. Peck sworn to before Robert J. Coflhun Is the
last certificate of the otficers of election In this book'r — .\. Yes, sir.
Q. Exhibit 75 and 76. respectively, being the tally-sheet books of the Novem-
ber 5, 1912, election — general election — ^held In the township of Alamo as far
as the votes recorded therein for Representative in Congress, third district, here
in each book, the figures are the same, are they not of the different candidates
for Representative in Congress? — A. Not exactly.
Q. So far as John M. C. Smith and Claude S. Carney are concerned?— A. I
think they tire; yes, sir.
Q. And the total vote in that township as shown by each of these poll books,
or tally-sheet books, for John M. C. Smith show what? — ^A. Fifty-nine. -
Q. The total vote for John M. C. Smith, as shown in the statement book of
the votes at that election in that township, are 59? — ^A. Ye8» sir.
Q. The total vote for Claude S. Carney, as shown by these tally-sheet books.
In that township was 82 in each of the books, is it not? — ^A. Yes, sir.
Q. And the total vote carried Into the statement book of that township for
Claude S. Carney was 82, was It not? — A. Yes, sir.
Q. You, as county clerk, received the returns of that November 5, 1912, elec-
tion from every township and every voting precinct in this cfiunty, didn't you?—
A. Yes, sir; I did.
Q. From tlie resi)ectlve election boards? — A. I did.
CARNEY VS. SMITH. 531
Q. So thnl: you bad for the board of county cauvaasers when they met fol-
lowing that'iwrticular electiou the returns from every township and voting
precinct in Kalamazoo County in which an election was held November 5,
3912?— A. Yes, sir.
Q. When that board of county canvassers convened tlie of that
November 5. 1912, eIei*tion — jceneral election— nnd particularly to canvas the
vote for Congi'essman in the third conj^ressional district you liad for that can-
vassing board the election returns from eveiy election board in every precinct
and township in the county of Kalamazoo, didn't you?— A. Yes, sir; I certninly
did.
Q. And they made their canvass from tliose returns that came into your office
as county clerk? — A. They did.
Q. The board of county canvassers in cnnvassing that vote of the November
5, 1912, election held in this county did not use the returns that had been sent
of that election to the Judge of probate in making the canvass? — A. Well, they
comiMired them up with part of the returns made to the judge of probate's
office.
Q. But in making their canvass they canvassed the vote and determined the
vote, determined their canvass by the returns that had been sent to you as
county clerk from the various precincts in this county? Didn't you so testify
this morning? — A. I think that Is a fact.
Q. When your board of county canvassers met to canvass the votes cast at
that election, the question of the right of the board to canvass the vote from the
returns In the judge of probate's office came up, didn't it? — A. Yes, sir.
Mr. Maynard. Objei'ted to as incompetent and immaterial.
Q. And the board decide<l that it had no right to determine its canvass from
the returns made to the judge of probate's office, did it not, the board of county
canvassers? — A. Well, they discontinuetl oi)ening any of those returns; whether
they decided they had no right or not I couldn't say, they simidy jmid no more
attention to the returns filed with the' judge of probate.
Q. You were the clerk of the board of county canvassers? — A. Yes. sir.
Q. When the l>oard was in ses«ion jou knew that tlie statute of this State
provided that the board of county canvassers should proceed without delay to
canvass the returns of the votes cast for the candidMtes for oflice voted for and
all other questions voted on at said election, according to the returns found In
the office of the coimty clerk from the saiid stnei'al lionrds of election inspec-
tors of the various voting precincts in the county? — A. I had read that law;
yes, sir.
Q. While this board of county canvassers was in session canvassing the
November 5. 1912, vote they had their sessions in your office in the courthouse
at Kalannizoo? — A. Yes, sir; they did.
Q. While that board was in session there was a contest on between Lynn B.
Mason, candidate for judge of probate, and Samuel Van Hc^rn. Democratic
candidate for judge of probate, in this county, was there not? — A. Yes, sir.
Q. There was a recoimt of the votes cast at that November 5. 1912. election
In each precinct in the county of Kalamazoo, was there not? — A. Yes, sir.
Q. And each ballot box containing the votes that had been cast for the differ-
ent candidates at that November 5, 1912, election was brought to your office
by the several election boards or by a meml>er from each one of the voting
precincts, and the ballot boxes were opened and the votes connted by the
hoard of county canvassers; is not that true?
Mr. Maynabd. Objected to as incompetent and immaterial.
A. Yes, sir; that is true.
Q. Whatever election return books were in those ballot boxes that were
opened by that board were taken out of the ballot boxes, were they not?
Mr. Maynard. Objected to as Incompetent and immaterial.
A. My impression is they were. I think they took them out.
Q. And the ballots were taken out? — ^A. Yes, sir.
Q. And they were recounted by the board of county canvassers? — A. They
were; yes, sir.
Q. Now, have you your canvassing book here? — A. Yes, air.
Q. What was done then after that recount on the judge of probate was had
with the ballots that had been taken from those ballot boxes and the books
that had been tjiken from those ballot boxes by the board of county canvassers
in making that recount?
Mr. ^fAYNARD. I would like to ask one question.
532 CABNEY VS. SMITH.
Q. Did this recount of this contest we are now talking alK>iit in any way
involve tlie vote for the office of (Congressman? — A. No, sir.
Mr. Maynard. I object to it as incom{>etent and immaterial.
Ky Mr. Adams :
Q. The books, as well as the ballots, that were in those ballot boxes that
were ojiened for that recount on Judge of probate also contained — that is, the
books did — whatever was in those ballot boxes, the record of the vote on Con-
gressman in the third congressional district, and the ballot boxes contained tie
ballots thnt were voteti for Congiessman in the third congressional district,
didn't they? — A. I supiwse they did.
Mr. Maynaru. I object to that as incompetent and immaterial, there being
no claim that that recount in any way Involved the question of the contestant
or contestee in this Inquiry, and that any changes or alterations in the books
does not affect the record made on the congressional election; the returns have
been made to tlie board and do not affect some other office.
Q. The different candidates for judge of probate votetl for .it that November
5, 1912, election in this county were on one and the sjinie ballot that the dif-
ferent candidates' nnmes were for the <»ffice of RepresenUitive in Congress in
the third congressional district? — A. Yes, sir; they were.
Mr. Maynabd. Objected to as incompetent and immaterial.
Q. And the same election returns, tally-sheet books, statement iKwks, and ik)11
books were used for recording the names and votes of the different candidates
for Judge of probate and for the candidates for Representative in Congress at
that elei'tlon?
Mr. Maynard. Objei*ted to as incomi)etent and inmiaterial and not the l^est
evidence.
A. Yes, sir: they were.
Q. These very tally sheets you have here from the township of Alamo to
your election board, as well as the statement books from the township of
Alamo, to which your attention has been called, contain the names of the differ-
ent candidates for Judge of probate and every other county officer voted for at
that elec'tlon that the candidates for Congi'ess were voted for? — A. I didn't
examine those.
Q. Look at them now and see whether that is not true. — A. Well, I don't
think it is, because we have two tally sheets right here and one could not bf in
the box.
Q. 1 didn't ask you anything about the books; I asked you whether those
tally sheets before you do not show that as well as the statement books.— A.
There are two tally sheets and two statement sheets and two poll l>ooks. I have
tlie two tally sheets, statement book, and poll book here.
Q. I ask you now whether those books you have before you do not show Just
exactly what I asked you in that question? — ^A. I don't understand that ex-
actly. Yes; I suppose they are.
Q. Aren't they? I am talking about those l>ook8 before you. — ^A. I think
they do,
Q. Those books from the township of Alamo, the statement book and tally
sheet book, contain not only every candidate who was voted for at that elec-
tion, but for every county officer in this county, the different officers voted for
for State offices, as well as the different candidates voted for for Representative
In Congress in the third congressional district? — ^A. Yes, sir.
Q. You ran for county clerk last fall, didn't you? — ^A. Yes, sir.
Q. It contains your name? — A. I suppose it does.
Q. They do, don't they?— A. I think they do; I don't know that I have ex-
amined them to see.
Q. Look at them and see. — A. I don't think there is any question about it
Mr. Maynard. I object to lumbering up the record with matters entirely out-
side of the point at issue.
The Witness. Yes, sir; that seems to be right
Q. They contain your name? — A. Yes, sir.
Q. And the different candidates for office and for the office of county clerk;
it contains your name? — A. Yes, sir.
Q. You were a candidate for office at that election? — ^A. Yes, sir.
Q. On the Republican ticket?— A. Yes, sir.
Q. Now refer to Prairie Ronde.
Mr. Maynabd. We raise no question as to Prairie Ronde.
Mr. Adams. If that is true, I don't care about that
CARNEY VS. SMITH. 533
Q. The first precinct of the city of Kalamazoo is the next? — A. I have it.
Q. Let me take the poll book. Clarence L. Miller was city clerk of the city
of Kalamazoo just before the 5th of November, 1912? — ^A. Yes, sir; he was.
Q. Now, as shown by the poll book from the first precinct of the city of Kala-
mazoo at the November 5, 1912, election, Irving M. Stimson was sworn as an
inspector of election by Clarence L. Miller, city clerk; does that appear in that
book? — A. Yes, sir.
Q. Clarence L. Miller Is under the jurat there, and there is attached to his
name the words "city clerk"? — ^A. Yes, sir.
Q. The figures in the tally-sheet book from the first precinct at that election
In Kalamazoo, and the figures in the statement book of that precinct No. 1, of
the city of Kalamazoo, of that same election, show the number of votes cast for
Claude S. Carney in each book for Representative in Congress to be 140, don't
they? — ^A. Yes, sir.
Q. For John M. C. Smith in each book, 93?— A. Yes, sir; 93.
Q. And the statement book contained in the envelope sent to the judge of
probate and the statement book sent to the county clerk of that election in that
precinct show the footing to have been in each one of those statement books,
03 for John M. C. Smith and 140 for Claude S. Carney for Representative in
Congress? — ^A. Yes, sir.
Q. Now get the second precinct. — A. There it is.
Q. In the poll book returned to you of this election in question from the
second precinct of Kalamazoo — the board of inspectors of the second precinct of
the city of Kalamazoo — the signature on the final certificate of Jesse Wilkins
is the same signature of Jesse Wilkins that appears to l>e under e-^ch jurat to
the oaths of the inspectors and clerks of that election, ns shown by that book
that I hand you? Is not that so? — A. I should think it was; yes, sir.
Q. On the final certificate to that poll book that same signature of Jesse
Wilkins appears opposite the bracket that shows that they signed there their
names as inspectors of that election? — ^A. Yes, sir.
Q. In the third precinct. I call your attention to the poll book, a part of
the returns returned to your ofiSce by the election l)oard of that election in
question tn this controversy, the first oath of office there was signed by M. D.
Wheeler as an inspector of that election? Isn't that so? — A. Yes, sir : that is so.
Q. The jurat to the oath that Mr. Wheeler took is signed by Clarence L.
Miller, city clerk? — ^A. By Clarence L. Miller; yes, sir.
Q. Now, M. D. Wheeler, according to that book, administered the oath to
every inspector and every clerk and every gatekeeper as appears by that book,
did he not?
By Mr. Maynard:
Q. It does not show in what capacity he administered the oaths? — A. Yes;
It does.
By Mr. Adams:
Q. That signature of M. D. Wheeler is the same signature, isn't it, that you
find under the first oath that was taken there, the oath of inspectors, signed
M. B. Wheeler and sworn to by Clarence L. Miller, city clerk? — A. Yes, sir.
Q. Mr. Wheeler, according to that i)oll book, was an insi>ector of election
that day? — A. Yes. sir.
Q. There Is no question in your mind M. B. Wheeler's signature under the
oath that Mr. Wheeler appears to have taken to that poll book and the signa-
ture of M. B. Wheeler under every jurat Is one and the same signature? — ^A.
Yes, sir; it is.
' Q. There is no question about it? — ^A. No question at all.
By Mr. Maynabd:
Q Is there a certificate there to that poll book? — A. There is a blank
certificate there.
Q. Read the words of that certificate. — A. (Reading:) "Whole number of
voters voting according to the ik>1I list was . Whole number of votes
counted on opening the ballot box was — ' . Ballots in excess of the number
of voters voting and destroyed was . Be it known that immediately upon
closing the polls, in accordance with the laws of the State of Michigan, this
board proceeded to compare the foregoing poll list with this duplicate, and
that all mistakes found therein were corrected, and said poll lists were .
according to the laws of 1891, act 109, section 16. Witness our hands this —
day of
»♦
Q. Is that signed at all? — A. No, sir.
534 CARNEY VS. SMITH,
By Mr. Adams:
Q. I show you the statement book returned to your office by the election
board of the third precinct of the city of Kalamazoo of that election in qnestioa
In this controversy and call your attention to the certificate, which includes
all matters set forth in this statement book, and ask you to read that cer-
tificate.— A. (Reading?:) " We do hereby certify that the foregoing is a correct
statement of the votes given in the third precinct of the first ward of the city
of Kalamazoo, Kalamazoo County, State of Michigan, at the general election
holden on Tuesday, the 5th day of November, A. I). 1912. M. D. Wheeler, Roy
A. Terpenning, L. G. I^ewls, Thomas Vogen, inspectors of election."
Q. M. B. Wheeler, R. A. Perpenning, William C. Lewis, and Thomas Vogen
are the same signatures that you find attached to the end of the oaths of the
insi)ectors contained in the poll book of that precinct, are they uotV — A. Yes, sir;
I think they are.
Q. Get the fourth precinct. I call your attention next to the I30ll book of
this election hi question returnetl to your office by the election board of the
fourth precinct of the city of Kaiamazm). Ix)ok at that book, the first oath of
inspector of election contained therein, that is signed by C. H. Little?— A.
Yes, sir.
Q. And the jurat under the oath of C. H. Little is signed by Clarence L.
Miller, city clerk? — A. Yes, sir.
Q. The next oath Is signed by Thomas M. Carroll? — A. Yes. sir.
Q. The next by McQuIgg?— A. Yes, sir.
Q. The next by Frank I). Stevens? — ^A. Yes, sir.
Q. The first oath of the clerk in the poll book is signe<l by John E. Crose?— A.
Yes, sir.
Q. The next by Charles M. Bennett?— A. Yes, sir.
Q. The next oath of clerk is by K. J. Bobbins?— A. Yes, sir.
Q. Each one of the jurats to those oaths of inspectors except tlie first one
is signed with the name of C. H. Little? — A. Yes, sir.
Q. Without any designation under the name of C. H. Little as to his official
capacity? — A. Yes, sir.
Q. The name of C. H. Little you find to those jurats, except the first one. is
the identical signature that you find of C. H. Ijlttle under the first oath as
inspector, isn't it? — A. Yes, sir.
Q. The same handwriting? — A. Yes, sir; Identically the same.
Q. You know C. IL Little, don't you?— A. Yes. sir.
Q. And have known him for a number of years? — A. Yes. sir.
Q. He is the same niun who was sworn here yesterday, is he not? — A. I don't
know as to that ; I was not here.
Q. I call your attention to the tally-sheet book returned to your otfice from
that fourth precinct by that same election board of that same election. You
were asked yesterday, I think, whether there were an>' tally marks on that
book op|)oslte the names of the different candidates for the oflice of Representa-
tive in Congress, and you said there were no tallies? — A. I was asked that
to-day.
Q. You testified that there were no tally marks there? — A. No tally marks
there.
Q. The names of the dlflfereut candidates for Representative In Congress In
the third congre-ssioual district are written in Ink? — A. Yes, sir.
Q. The total straight votes, the total 8i)Ht votes and the total votes received
opposite each candidate for Representative in Congress are also written in
ink? — A. Yes, sir.
Q. But no tally marks? — A. No tally marks.
Q. It Is not the practice to put down tally marks showing the number of
straight votes on these tally-sheet books. Is It? — A. No, sir; I don't think it
Q. I show you now the tally-sheet book and the statement book of this elec-
tion in question returned to your office by the election boards of the fourth pre-
cinct, city of Kalamazoo, and direct your attention especially to that part of
this book which shows the number of votes cast for the different candidates
for Representative In Congress. In each one of these books the total number of
votes recorded and entered for John M. C. Smith for Representative in Cx)ngrew
is 144, is it not?— A. Yes, sir.
Q. The total number of votes recorded for Claude S. Carney Is IW?—
A. Yes, sir.
Q. In each book? — A. Yes, sir.
CARNEY VS. SMITH. 535
Q. Entered therein in ink? — A. Yes, sir.
Q. In each instance V — A. Ye^, sir.
Q. In that book? — A. Yes, sir.
Q. Thiit is true V— A. Yes. sir,
Q. There have been no changes, no erasures, no corrections in these figures
here? — ^A. No, sir.
Q. In either of these books? — A. No, sir.
Q. Referring to the i>oll book of that particular precinct last inquire<l about,
the final certificate in that book is signed by C. H. Little, Mc. Quigg, M. D.
iStevens, and Thomas M. Carroll, board of election insijectors of the fourth pre-
cinct, second ward, city of Kalamazoo, is that correct? — A. Yes, sir.
Q. Now in the sixth precinct? — A. The sixth precinct of the second ward.
Q. The tally book or ik>1I book? — A. There it is.
Q. Uef erring to the i)oll btH>k from the sixth precinct of the second ward of
the. city of Kalamazoo of this election In question returned to your oflace, the
first oath of inspector there Is signed by Frank Flaitz? — A. Yes, sir.
Q. The jurat Is signed by Clarence L. Miller, city clerk? — A. Yes, sir.
Q. Now, to the jurat signed by J. B. Schell, lnsi)ector, and under the jurat
signed by W. A. Balch as in8i)ector, and under the oath signed by E. H. Fisher as
clerk and under the nanie of William J. I^oiisbury as clerk of the election, the
name of Frank Flaitz is signed? — A. Yes, sir.
Q. Under the jurat? — A. Yes, sir.
Q. Likewise the name of Frank Flaitz Is signed under the jurat to the name
of O. W. Bruiidage, who took an oath there as insiwctor? — A. Yes, sir.
Q. Frank Flaitz's name is signed under the jurat to the name of John Yagw»
who took an oath as gatekt»ei)er? — A. Yes, sir.
Q. Frank Flaitz's name is signed to the jurat to the name of L. Fllckenstein,
gatekeei)er? — A. Yes, sir.
Q. Then the name Frank Flaitz is the identical signature. Is It not, of the
Frank Flaitz that a]>iK»ars under the oath of Insjiector, signed by Frank
Flaitz? — A. Yes, sir.
Q. The firfrt oath In this book?— A. Y'es, sir.
Q. And the final certificate in this i)oll book is signed by Frank Fialtz to the
jurats to O. W. Bmndage and J. B. Schell, InsiJectors of election, held on the
5th day of November, 11)12, in the city of Kalamazoo? — A. Yes, sir.
Q. Those are the same signatures, respectively, as appear here in these differ-
ent places, these different oaths, to which your attention has been called? — ■
A. I think they are the same signatures; yes, sir.
Q. The tally-sheet book of that sixth precinct returned to your ofllce of this
election in question, you testified this morning, had no tally marks opposite
the names of the different candidates for Representative In Congress? — A. I
think I did ; yes, sir.
Q. The figures are recordetl under the heading prece<llng those names, "Total
straight votes." " Total sjilit votes." and " Total votes received," are they not —
A. Yes, sir.
Q. In Ink? — A. Yes, sir.
Q. John M. (\ Smith, o))i)oslte his name "total straight votes, 31 "? — A. Yes.
Blr.
Q. Opposite the name of John M. C. Smith ** total split votes, 115"?— A. Yes»
sir.
Q. Oi)posite John M. C. Smith's name "total votes received, 146"?— A. Yes,
sir.
Q. Opposite the name of Claude S. Carney " tobil straight votes, 70"? — A.
Yes, sir.
Q. Opposite the name of Claude S. Carney " total split votes, 1)9"? — A. Yes,
air.
Q. Opposite the name of Claude S. Carney "total votes received, 175"? — A.
Yes, sir.
Q. They are all in ink?— A. Yes, sir; all in ink.
Q. They do not appear changed, erased, or in any way altered? — A. No, sir.
Q. All these different election returns to which your attention has been di-
rected this morning by counsel on the other side — they are all in the same
shai)e they were when returned to your office by the several election boards that
returned them to you, are they not? — A. I think they are; yes, sir.
Q. You have taken pains with them to see they were kept so that no changes,
erasures, or cort-ections were made in them? — A. Yes, sir; I don't think there
have been any changes made.
536 CARNEY VS. SMITH.
Q. The votes for John M. C. Smith, total voteH, in this i)oll book that your
attention was directed to just now, in this sixth precinct, the total vote for
John M. C. Smith, as shown in the statement boolv in the sixth precinct at that
ele<-tion, are just the same in number, IIC? — A. Yes, sir.
Q. Just the same in each boolc for Claude S. Caniey — 175? — A. Yes, sir.
Q. When these different returns came into your office, these election returns.
which you have testified about here on the direct examination on Congressman,
all theelection returns that were returned to your office as county clerk in this
county of that November 5, 1912, election — they wore sealed when they came to
your office? — A. With the exception of one; I recollect that one seal was broken
when the mail man left it.
Q. With that one exception, all the rest of them were sealed? — A. I couldn't
say as to that ; I recollect of one.
Q. That is your recollection now? — ^A. As far as I can remember, that is the
case.
Q. You didn't break those seals, did you, before the bi^ird *>f county can-
vassers met? — A. No, sir; I didn't break any of the seals,
Q. You kept them intact, just as they came to j'our office, until the board of
county canvassers met? — A. As near as I could: yes, sir.
Q. Well, the seals wore broken, except, as you recall now. on one of them, one
envelope, by tha board of county canvassers or in its i>resence? — A. Yes. sir.
Q. Take the seventh precinct now? — A. Here it is.
Q. T-et me see the tally-sheet book and the poll book. Referring to the poll
book now of this election in question in the seventh precinct in the city of
Kalanjazoo, the first oath in the book is the oath of an insi)ector? — ^A. Yes. sir.
Q. That oath is sig:ned by B. O. Bush?— A. Yes, sir.
Q. At the end of that oath it is — the jurat to that oath is signed by Clarence
Ij. Miller, city clerk? — ^A. Yes, sir.
Q. No<v, every certificate there — every oath rather — of the Inspectors,
namely, W. E. Geary, James B. Chase, and the oaths to the two clerks and the
oath to Charles Heushaw, gatekeeper, and the oath to George T. Brown, gate-
keeper, in each instance the jurat under those oaths is signed by B. O. Busb?—
A. Yes, sir.
Q. Without any official designation under the name of B. O. Bush? — ^A. Yes,
sir.
Q. That name B. O. Bush that you see to those different jurats to these dif-
ferent oaths is the identical signature of B. O. Bush which you find under the
first oath of inspectors here in this book, isn't it? — A. It is the identical signa-
ture.
Q. B. O. Bush was an inspector at that election? — A. Yes, sir.
Q. He signed this certificate to this \h)\\ book as inspector, didn't he?— A.
Yes, sir.
Q. W. E. Geary, James B. Chase. J. E. Walton also signed the certificate in
this poll book as lnsi)ectors of that election? — A. Yes, sir.
Q. Now, referring to the tally-sheet book of this seventh precinct of thip
election, the tally-sheet book returned to your office by the board of insi)ei*tors.
and osiHK-ially to the different candidates for the office of Representative hi
Congress from the third congressiimal district, you testified on your direct
examination that there were no tally marks on this hook opposite the names"
of the various candidates for that office, didn't you'^ — A. Yes, sir; I think I did.
Q. Now look at the book; you find that to be fo, don't you? — A. Yes, sir.
Q. The total number of straight votes are recorde<l in this tally-sheet book o])-
I>o.site the names of John M. C. Smith. Claude S. Carney, Iievant L. Rogers,
and Edward N. Dingley? — A. Yes, sir.
Q. Also the total number of split votes op|)osite each candidate which was
received, as shown by the book? — A. Yes. sir.
Q. Also the total votes received by each one of those <*andi<lates? — A. Yes. sir.
Q. They are there in ink? — A. Yes, sir.
Q. Now refer to the statement book returned by tlie board of insi^ectors of
the s<»venth precinct of that election to you as county cleik. John M. C. Smith,
as shown by the tally-sheet book, had 157 votes, didn't he? — A. Yes, sir.
Q. As shown by the statement book there, there is given him, opposite his
name, 157 votes?
Mr. Maynard. I will make this objection, that the statement book can in no
way bolster up the tally-sheet book; that tally-sheet l)ook shows so man.v
straight votes and so many split votes and total so many, and there is no ind^*
CARNEY VS. SMITH. 537
cntiou on the book to show where they derived theiu from. It is iiu'onii»eteut
and ininmterial.
Mr. Adams. We claim there \h no error ; they are not obligetl to put down any
tallies at all of any split or straight votes; they can keep the tallies on any-
thing iliey want to. The tally j^heel does not have to show the figures from
which the result is obtained, if it shows the result.
Q. Opposite the name of Claude S. Caniey in this statement book — tally-Hheet
book — the total votes received by him are recordetl as 10(»V — A. Yes, sir; in that
precinct.
Q. In the st;itement Ijook in that |»rei-inct the total number of votes received
for Claude S, Carney was 10r)?~A. Yes, sir; \m.
Q. There has been no changt^s, erasures, or corrections nuide in those figures
in either of those books? — A. No, sir.
Q. The next is the ninth precinct?— A. Here it is.
Q. The tally-sleet book T call your attention to, returned by the election
board of this election to your office. I understoo<l yon to say on your dii'ect
examination that you found a change in the figures opposite the name of Claude
S. Cnniey. Didn't you so testify?— A. I tliink I did.
Q. Now. under the heading "Total split votes," opi)osite the name of (^laude
S. Carney api)ear now the figures 99? — A. Now; yes, sir.
Q. The first 9 of the 99 has not been chjinged »»t all, has it? — A. No, sir.
Q. There is indicatlrm there that under the Fecond figure 9 there was origi-
nally an 8; is that correct? — A. T don't know what it was,
Q. Does it not so appear now? — A. Yes; I think probably it was an .S.
Q. But»the 9 that is over the 8 is very plainly now a 9? — A. Yes, sir.
Q. Now, under the heading "Total votes received." oprwsite the ujune of
Claude S. Carney in this book appears now to be the figures 175? — A. Yes, sir.
Q. In ink? — ^A. Yes. sir.
Q. Very plainly? — A. Yes, sir.
Q. And the figures opposite the different candidates for the office of Repre-
sentative in Congress on that book are in ink? — A. Yes, sir.
Q. They are plain and legible, good figures, are they not? — A. Yes, sir; they
are good figures.
Q. Now, that book Is in the same condition now that it was when it was
receivetl by you from that election board? — ^A. Yes, sir; for all I know.
Q. Whatever change was made in these figures opi)osite the name of Claude
R. Carney were made by the board of inspectors before a return of that book
was made to your office by that board? — A. I believe that it was.
Q. Do you know who the change was made by? — A. I do not.
Q. Now, referring to the statement book returned to your office from that
same precinct by the election lK)ard of that election, opi>osite the name of
Claude S. Carney you find written in there in writing 170, then next appears
the word " four," does it not? — ^A. Yes, sir.
Q. There Is a line drawn through that four? — A. Y'es, sir.
Q. And following that word "four" with a line through it is the word
"five"?— A. Yes, sir.
Q. And the figures opposite the mnwe of Claude S. Carney, opposite the
writing there "one hundred and seventy-five." are now the figures 175? — A.
Yes, sir.
Q. The five is very jJain?— A. Yes. sir.
Q. And the change in the word "four" there and the change from four to
five seem to have been made with the same ink and evidently by the same
penman? — A. I think so; yes, sir.
Q. The 175 opposite the name of Claude S. Carney in this statement book
corresponds to the total vote that (Claude S. Carney received as recorded in
the tally sheet book from that sjime precinct of thtit snme election? — A. Yes, sir.
Q. And the words written here. 175 opjiosite the nnme Claude S. Carney, is
in blue ink as well as the figures 175, are they not? — A. Yes. sir.
Q. You find in the poll book returned to you by the board of election from
that precinct of that election a great many of the names in that \)6\\ book
written with blue ink? — A. Yes, sir; most of them.
Q. Those three books are now in the same condition as they were when they
first came into your office? — A. I believe they are; as far as I know, they are.
Q. Now, let us see the poll book. Refer now to tlie poll book returned to
you as county clerk of that election in question in this controversy by the
election boa^d of the tenth precinct of the city of Kalamazoo; the first oath of
inspector in that book is signed by Albert Ten Busschen? — A. Yes, sir.
538 CARNEY VS. SMITH.
Q. I'lider the jurat under his ojith of Mr. Ten BusHclien is the name of
Clnrence L. Miller, city clerk V — A. Yes, sir; C. L. Miller.
Q. I'luler the onth of Fnink B. iiodfrey, as Inspector, and under the oatb of
A. T. Wells, as inspector, and under the oath of Paul Schrier, as insi>ector.
and under the oath of 1). K Swartz. as clerk, and under the oath of Conrad
Krelingr, as clerk, and under the oath of WilUam H. Truniau, as clerk, and
under the oath of Jake Millard, as pite keeper — that is, under the jurat of each
one of those oaths except that signed by Albert Ten Busschen api)ear the name
of Albert Ten Busscheu? — A. Yes, sir.
Q. Without any designation of what offict»r he was? — A. Yes, sir.
Q. That the name Albert Ten Busschen apiiears under those various jurats
to which your attention is called is one and the Siune signature, Albert Ten
Busschen. that api)ears In the oath signed by Albert Ten Busschen? — A. Yes. sir.
Q. The same signature? — ^A. Yes, sir.
Q. Albert Ten Busschen was an Inspector at that election? — A. Yes, sir.
Q. According to this record? — A. Yes, sir.
Q. He was an alderman of the city of Kalamazoo from the fourth ward in
which that tenth precinct was at the time of this November 5, 1912, election
was held? — A. Yes, sir.
Q. And the names Albert Ten Busschen, Paul Schrier, Peter Swartz. Frank
B. Godfrey, A. T. Wells api)ear in the certificate at the end of this ih)11 book as
insi)ectors of that election, don't they? — A. Yes, sir ; they do.
Q. I call your attention to the tally-sheet book returned bj" the board of in-
spectors from the tenth precinct of the city of Kalamazoo of this election in
question, especially referring in that book to the different candidates for the
office of Representative in Congress for the third congressional district. You
testified on your direct examination that there were no tally marks in that tally-
sheet book opposite the names of the dlflferent candidates for Congress?— A.
Yes, sir; I think I did.
Q. That is correct?— A. Yes, sir.
Q. Under the heading *' Total straight votes," and under the headings " Total
split votes" and '* Total votes received," opposite the names John M. C. Smith
and Claude S. Carney, Levant L. Rogers and Edward N. Dingley, respectively,
appeared figures in ink? — A. Yes, sir.
Q. There are no changes, erasures, or corrections made in those figures in
that book? — A. No, sir.
Q. As shown by the book? — A. No, sir.
Q. They are i)lain, legible figures, are they not? — A. Yes, sir.
Q. Now refer to the statement book returned to your office by that same board
from that same election precinct of that same election, and you find under the
heading " Total votes received " in that tally-sheet book opposite the name of
John M. C. Smith, 115 votes recorded? — A. Yes, sir.
Q. Opposite the name of John M. C. Smith, Representative in Congress, in
the statement book you find 115 votes recorded? — A. Yes, sir.
Mr. Maynard. 1 objec*t to that as incomi)etent and Immaterial.
Q. Opposite the name Claude S. Carney, In the tally-sheet book, you And in
Ink "Total votes received" 139?— A. Yes, sir.
Q. Opposite the name Claude S. Carney, in tliis statement book, you find total
votes re<'eived, 139? — A. Yes, sir.
Q. Now referring to the statement book returned to your office by the elec-
tion board of this election in question from the eleventh precinct of the city
of Kalamazoo, I understood you to testify this moi-ning that there was a change
made in the vote of Claude S. Carney for Representative in Congress, third
district? — A. I think I did, or a correction, rather, made.
Q. Now, whatever occurs there opijosite the name Claude S. Carney was
made In that book before It reached your office from that election board?— A.
Yes, sir; I believe so.
Q. As it appears on that book after the name Claude S. C^amey there were
originally written In there the words " seventy-one " ? — ^A. I think so.
Q. There api)ears now to be a line or two drawn over those words ** seventy-
one"? — ^A. Yes, sir.
Q. Right after those words " seventy-one " with a line drawn through is the
word " eighty," is that correct?— A. That Is double d-d-y.
Q. Opposite that word "eighty," opposite the name Claude S. Carney, in
figures appear in figures 80? — ^A. Yes, sir.
Q. The figures 80 appear to have been something else before the 80 was put
down there? — ^A. I think so.
CARNEY VS. SMITH. 539
Q. Just above the names of the dlfTerent candidates for Representative in
Congress from the third district appears this : " Whole number of votes j;iven
for the office of Repi-esentative in Congress, third district" (then in writing)
"three hundred and forty-six;" is that correct? — ^A. Yes, sir: that is correct.
Q. Then after those words in writing, over in the column for flgures, the
figures 346?— A. Yes, sir.
Q. There has been no change in the words " three hundred and forty-
six?"— A. No, sir.
Q. No corrections made, as shown by this book? — A. No. sir.
Q. No coiTectlon made in the flgures 346? — A. Yes, sir.
Q. Now. add up the votes received by John M. C. Smith, as shown by this
book to which your attention has been directed, and the votes oi>posite the
name Claude S. Carney and the votes opposite the name Levant Xj. Rogers
and opposite the name Edwai^ N. Dingley and they amount to 346, don't
they? — A. Yes, sir; they do.
Q. Now refer to the tally-sheet book returned to j'our office from the eleventh
precinct of the city of Kalamazoo by the election board of that election in ques-
tion, opposite the name John M. C. Smith. Representative in Congress, and you
find in the column "Total votes received" 63, don't you? — A. Yes. sir.
Q. That corresponds with the number of votes of)i)osite the name John M. C.
Smith in the statement book? — A. Yes, sir.
Q. Opposite the name Claude S. (^imey. under the heading "Total votes re-
ceived," you find 80 in flgures? — A. Yes, sir.
Q. Those figures in this tally-sheet book opjwsite the name Claude S. Carney,
namely, the flgures 80 in the tally-sheet book, have been changed or corrected,
bare they? — A. No. sir.
Q. They appear unchanged in the tally-sheet book? — A. Yes, sir.
Q. Opposite Carney's name? — A. Yes, sir.
Q. That 80 votes for Claude S. Carney for Representative in Congress are
recorded in this statement book opposite the name Claude S. Carney? — A.
Yea sir.
Q. Now refer to the poll book returned to your office by the election board
of the eleventh precinct of this election in question : the first oath in this poll
book of Inspectors seems to be signed by Lawrence Hollander? — A. Yes. sir.
Q. The jurat is signed Clarence L. Miller, city clerk? — A. Yes. sir.
Q. Now. the oaths of inspectors — the next oath of inspector — as shown by
this poll book and the oaths of the three clerks and the oaths of the two gate-
keepers, the jurats under all the oaths of the different inspectors, clerks, and
gatekeeiiers of that election board .signed by Lawrence Hollander are without
any official designation? — A. Yes, sir.
Q. The name Lawrence Hollander in these various Jurats, aside* from the
one under Lawrence Hollander's oath, is the same signature as that of
Lawrence Hollander under the oath signed by Lawrence Hollander? — A. Yes,
sir: the very same.
Q. The final certificate on this poll book is signed by Lawrence Hollander and
three other inspectors, isn't it? — A. Yes, sir.
Q. The names signed there to that final cert! flea te of inspectors are the same'
inspectors, respectively, who signed these different oaths to which your atten-
tion has been directed? — A. Yes. sir.
Q. Now, then, come to the twelfth. Refer to the poll book returned to your
office by the election board of the twelfth precinct of the city of Kalamazoo in
this election in question, the first oath of inspector of election is signed by
B. P. Van Blarcom?— A. Yes, sir.
Q. And the Jurat signed by Clarence L. Miller, city clerk? — A. Yes. sir.
Q. Then the three inspectors, three clerks, and two gatekeepers signed the
respective oaths to the respective positions they were fllling there at that
time? — ^A. Yes, sir.
Q. The jurats to those oaths were signed by B. F. Van Blarcom? — A. Yes, sir.
Q. Under the name B. F. Van Blarcom, under these different jurats, ex-
cept to the Jnrnt under one oath signed by him, are signed with the very same
signature. B. F. Van Blarcom, as the name B. F. Van Blarcom which is signed
imder the oath signed by B. F. Van Blarcom?— A. Yes, sir.
Q. B. F. Van Blarcom was on November 5, 1912, an alderman in the city
of Kalamazoo? — A. Yes, sir; of the fifth ward.
Q. Now. the thirteenth?— A. The thirteenth; here it is.
540 CARNEY VS. SMITH.
Q Now the ballot box from the thirteenth ineoiiict of the city of Knla-
iriazoo o7'that November 5, 1912, elec-tlon; was that ballot box. among others,
nni^npd bv the board of county canvassers? — A. \es, sir. .» ^ ^.,
Q I KrstoSd you to say this morning that in the examination tha you
ma'^de he'e^oft?^ cLtaining the returns ,»>ythat board to th^^
of probate that there was no statement book contained .'—A. I thuik that is a
^^Q.' The envelope containing the returns to the judge of pi-obate by that elec-
tion board from that precinct is open now?— A. Yes, sir.
Q. And was oi>en at the time the board of county ctinvassers met?-A.
Yes sir l
Q. At the time the board of county canvassers recounted the votes from that
Drecinct*' \ Yes sir.
Q It is mssible, is it not, that in putting the ballots back in the ballot box,
when the ballots from that precinct were counted by the board of county can-
vassers, that that statement b<K)k may have been by mistake put m the iiallot
box?— A. It is possible; yes, sir. , . ^^ . t i ^
Q You don't know whether it is in there or not.'— A. No. sir; I do nut.
Q You stated this morning that there were no tally marks on the tally-shwt
book from the thirteenth precinct opi)osite the names of the dlflferent candi-
dates for Representative in Congress, third district?— A. I presume I did.
Q. That is correct; you will look at the book now?— A. Yes, sir; that is cor-
rect
Q Now. take the total straight votes under the heading. "Total straight
A-otes" and under the heading "Total split votes," opposite the names of John
M. C. Smith, Claude S. Carney, levant L. Rogers, and Edward N. Dingley:
there are in each one of those columns some figures, are there not? — A. Yes, sir.
Q. Now, refer to this tally-sheet book opposite the name John M. C. Smith;
under the head "Total straight votes" are the figures 58?— A, Yes, sir.
Q. Opposite his name, under the heading " Total split votes," are the figures
102? — ^A. One hundred and two.
Q. Opposite his name, under the heading " Total votes recelvetl," are the
figures 160?— A. Yes, sir.
Q. Opposite the name Claude S. Carney, under the heading " Total straight
votes," are the figures 133?— A. Yes, sir.
Q. Opposite the name Claude S. Carney, under the heading "Total si)lit
votes," are the figures 117?— A. Yes, sir.
Q. Opposite the name Claude S. Carney, under the heading " Total votes re-
ceived," are the figures 230?— A. Yes. sir.
Q. In each particular they are in ink?— A. Yes, sir.
Q. Are there any changes, corrections, interlineations, or anything else?—
A, No, «lr.
Q. Refer to the statement book returned to your office by the election board
of the thirteenth i)recinct of that election in question; you testified this morning
that In the votes for the different candidates for Congress there had been a
change made, you stated that as you read it. It reads this way ; " Whole num-
ber of votes jjlven for the office for Representative In Congress, third district,
was 700; then follows the words "one hundred" with the words "seventy-
four," didn't you. and that a line was drawn through the two wonls "seventy-
four" ? — A. There Is a line drawn through. I don't know whether I called
that 74 or 75 — it would be hard to say. I think I thought it was 75; that
looks as near like a 4 as a 5.
Q. Anyway, through the words, whether " seventy-four " or " seventy-flve," a
Hue is drawn through those two words? — A. Y'^es. sir.
Q. Just over those written In ink, now, is " fifty-four." in words?— A. Yes,
sir; 754.
Q. Then carried out to the right of the words " seven hundred and fifty -four
«re the figures 754? — A. Yes, sir.
Q. Those figures, 754, have not been changed in any way? — X. No, sir.
Q. Now. opposite the name John M. C. Smith, appear In figures 160, which
haven't been changed in any way; is that correct? — A. Yes, sir.
Q. Opposite the name Claude S. Carney appear the figures 250; have thoee
figures been changed in any way? — ^A. No, sir; that is correct.
Q. Opposite the name Levant li. Rogers appear the figures 136? — ^A. Yes, sir.
Q, There are no figures opposite the name of Edward N. Dlngley?— A. No,
sir; not opposite.
CABNEY VS. SMITH. 641
Q. B«t on the next line below the name of fwan, N. Plngley. no name
being on »»>« same line uppe« ^ "^^^^^^^rLyZk^el^^^^-^. Yes. sir.
'V^:jZ^eh^rrir^t.. they were put In there In the first Instance-
■^ a Thire have not been any changes or erasures of any klndT-A^^ No. sir.
o That is the tally sheet Dook I call your attention to.'— A. Yes. sir.
o On^lte the name Claude S. Carney on this tally sheet book, under the
hp^Hin^'^rot-il vo?A rewived," you find the figures 250 ?-A. Yes. sir.
^ Those fl^rl^TsO are just is they were originally put In this book?-A.
Q HavenH been changed in any particular?— A. No, sir.
2:0pprsftrtrna";ne*£:;;:^nt'^?;.'^«ers. "Total votes received." are 136.
'"o^'rSrsLl^ir^krfjust as they were originally put on there?-A. Yes sir
Q SStehf name Edward N. Dlngley you find the figures under " Totu
votes reived " 2087-A. Not exactly opposlte-the 208 are one line above ; It
''Hus nTortke^^mrUneDingley's name is. but ou a vacant line which is
just above bis name?— A. Yes, sir. . ^„, ^ ^ ,„
O In the column, "Total votes received " /—A. Yes, sir. r *. t
Q. Whl^h is just under the figures 136, that are opposite the name Levant L.
Rogers?— A. Yes, sir. v^ «<r
§• ^^! ^7T:^^^:\n^^^^^ to be for Edward
^Q^K'^lho^^'fli^^^^^^^^ to you from this tally-sheet book
appear ?o have been changed, altered, or corrected in any particular ?-A.
^ Q^They correspond with the figures that are opposite the corresponding names
on the statement book, don*t they?— A. Yes, sir; exactly.
Q I ?all^ur attention to the poll book returned to your office by the election
board of the thirteenth precinct of the city of Kalamazoo relating to this
election In question, and' call your attention to the first oath In this poll book
which is sistned by Ernest Wise? — A. Yes, sir.
Q. The jurat under that oath Is signe<l by Clarence L. Miller, city clerk?—
A Yes sir
Q There are three other oaths of inspectors signed, are there not, in that
book by the inspectors?— A. Yes, sir; three others besides the first one.
(J. There are four oaths that are signed by different persons as clerks?— A.
Yes. sir
Q Two oaths signed by two different men as gatekeepers?— A. Yes, sir.
Q. Each of the Jurats under those oaths, except the first one, are signed by
Ernest Wise?- A. Yes, sir. « o * v^ c.<^
Q. Without anv designation of his official capacity or office?— A. Yes, sir.
Q The name Ernest Wise In these different jurats appear In this book Is
the same signature as that of Ernest Wise In the first oath of inspector, isn t
it?— A. Yes, sir; the same signature.
Q. Ernest Wise was an inspector of that election?— A. Yes, sir.
Q. In the final certificate In this same poll book Ernest Wise signed as one
of the board of Inspectors, didn't he?— A. Yes, sir.
Q. Together with three others?— A. Yes, sir.
Q. The next Is the fourteenth. You testified this morning, as I understood
you, that there was only one certificate made as far as the statement book was
concerned, by the board of Inspectors of the fourteenth precinct of the city of
Kalamazoo at this November 5, 1912, election, now, you don't know, do you*
542 CAKNEY VS. SMITH.
but what tlmt board may have made a certificate in the statement book, nor
do you know whether there i» or Is not a statement book contained In the
envelope nd(ire*wed to the judjje of i>robate. contalniuK some of the return of
that l)oard — election board— of the fourteenth precinct of the city of Kala-
mazoo, do youV — A. No, sir; I do not; 1 think I testified this morning that
there was a certitlcate signed by H. A. Davis, one of the in8i)ector8 of election.
Q. You testified this morninjj, if I understood you correctly, that this was the
only certificate niiuie? I show you an euveloi^ addressed to tlie proimte judge
containing a statement of the votes from the fourteenth precinct, fifth ward.
You don't know what is In tliat envelojje, do youV — ^A. No. sir; I do not.
Q. It is sealed? — A. No, sir: it is sealed.
Q. The seal is unbroken this very minute, isn't it? — A. Yes, sir.
Q. You don't know what certificate there may be or what different return
there is In tliat envelope? — A. No, sir; I do not.
Q. Tlie next is Texas Townshii). Now, I understooii you to testify this
morning that no returns had been made by the elec»tion board which acted
November 5, 11)12, In conducting the general election In the township of Texas,
to the judge of probate, did you so testify';^ — A. I don't know whether I did or
not.
Q. 1 show 3'ou an envelope now addressed to the probate judge or the board
of county canvaKsers, Kalamazoo. Mich., and is file>marked " Kalamazoo County.
prol)ate court, filed Noveml>er (5, 11)12, Rlcliard H. Klwell, register of iH-obate."
On tlie left-hand corner ap{>ears this: "This enveloiie contains one statement
of votes of the township of Texas, at the election held November 5. 11)12." That
was correctly rend by me, was it not? — A. Yes, sir.
Q. That envelope Is .sealed? — A. Yes, sir.
Q. At this time the seal is unbroken? — A. Yes, sir.
Q. It appears to have something inside of It, does It not';? — A. Y*»s, sir. 1
recolhH't during that canvass there was s<mie question about their l>eing short a
return In the Judge of probate's office; whether they found It afterwards or not
1 don't know. We went through all these here this morning, and I didn't find
it here, and at that time I l)elleved there was not.
Q. All these returns that have been produce*! here on this hearing have been
produ<'ed by you, have they not. as county clerk '^ — A. Yes, sir.
Q. Since the meeting of the board of county canvassers held here shortly after
the November 5. 11)12. election, there has l>een in your i)ossessIon. custody, and
control, as county clerk, all of the returns that were received by the judge of
probate from the several boards In the county of Kalamazoo of that November
5, 11)12. election? — A. I think they have; yes, sir.
Q. Now, you received from the judge of probate, as county clerk and as clerk
of the board of county canvassers, shortly after that November 5, 1012, election
the returns fnmi the election board In every township and every voting precinct
in the city of Kalamazoo and elsewhere in the county of Kalamazoo of that
November 5. 11)12. general ele<'tion, didn't you? — A. I think those were ordered
by the board of county canvassers as they needed them, and Klchard H. Blweil
brought them in as they calle<l for them, and when they were through they were
left In the oflSce.
Q. The boanl had them there before them, or you had the custody of them
as clerk of the board? — A. Yes, sir.
Q. The returns of the board of county canvassers — I mean the returns froB
every township and every voting precinct that existed in the county of Kala-
mazoo at the time of that November 5. 1912. election? — A. I think I did; I had
the custody of what returns are here.
Q. I show you a statement book of the general election held November 5.
1912. In the township of Texas, county of Kalamazoo. You testified this morn-
ing that whatever was filled In the book was filled In with a lead pencil, didn't
you?— A. I think I did.
Q. It Is HO filled in with a lead iiencll now. Isn't It, as you observe after ex-
amining It? — A. Yes, sir; I think It Is,
Q. 1 call your attention to what Is contained In this statement book under
the heiding "Office of Representative In Congress, third district"; you find
there the name John M. C. Smith, don't you? — A. Yes, sir.
Q. (>piK)slte the name John M. C. Smith you find written in in lead pencil
the words ** fifty-five"?— A. Yes, sir.
Q. Then further to the right, opposite the name John M. C. Smith. In the
column headed **Put figures in this column," you find the figures "55"?— A.
Yes, sir.
CARNEY VS. SMITH. 543
■
Q. Now, then. I cnl! your attention to the tally- sheet book from this same
township of Texas, this s»ime election, one of the books you have brouifht here
as returned by the elei-tiou boaifl of that township, and 1 esi)eeially call your
atteutiou to what apimars in this tally-slieet l)ook opi>oslte the heading " Uepre-
?entative In Confjress. third district,'* 3'on notice there the name of John M. C.
Smith, don't youV — A. Yes, sir.
Q. You find s<.»n)e tallies there, don't you, in ink — tally marks in ink? — A.
Yes. sir: I think that is ink.
Q. Opiwslte tlie name John M. C. Smith in this tally-sheet book, under tlie
hendiuK "Total straight vates," you find the figures 32 in Ink, don't youV — A.
Yes, sir.
Q. Opposite tlie name John M. C. Smith in this tally-sheet book, under the
heading "Total si)lit votes," you find the figures 23, don't you? — A. Yes, sir.
Q. In ink? — A. Yes, sir.
Q. OpiK)site the name John M. C Smith, under the heading " Total votes
received," you find the figures 55 in ink? — A. Yes, sir.
Q. Now, opiJosite the name Claude S. Carney, in the statement book from
this toA^aishij) of Texas, you find in writing the words " sixty-six "? — A. Yes, sir.
Q. Opimsite the name Claude S. Carney to the right of the words '• sixty-six "
in the column " Put figures in this column " you find the figures (W;? — A. Yes,
sir.
Q. Referring to the tally-sheet book from this same township, opiM)site the
name Chiude S. Carney, you find some tally marks, don't you? — A. Yes. sir.
Q. Then, still further to the right, under the he^d "Total split votes," you
ftnd oi)iK)site the name (Maude S. (*arney the figures 52? — ^A. Yes, sir.
Q. In ink?— A. Yes, sir.
Q. Opposite the name Claude S. Carney in the column "Total split votes"
you find the figures in ink 14? — A. Yes, sir.
Q. Opposite the name Claude S. CJarney, under the heading "Total votes
received," you find the figures 66 in ink? — A. Yes, sir.
Q. Now, then, the figures opi)oslte " Total votes received " opiK)site the name
CTlaude S. Carney and John M. C. Smith in this tally sheet from the township
of Texas you find to be identical with the figures that are resi>ectively opposite
the names of Claude S. (^arney and John M. i\ Smith in lead pencil in that
statement book in this township of Texas, don't you? — A. Yes. sir.
Q. I show you the jjoll book of the township of Texas returned to you of
that Nnveml)er 5, 11)12. election by the election board of that township. Now, I
under8to<id 3'on to say this morning that the oaths were filled out in so far as
the blank spaces were concerned by using a lead pencil? — A. I think I was
mistaken In that: there was one gatekeei)er that is filled out in ink, when I
come to examine it.
Q. You find uiKin examination that the oath of gatekeei>er was signed by
Itichard Jeffreys in ink'^— A. I think it is.
Q. As far as the jurats are concerned that is signed there with a blue
Indelible pencil, is it not 'i* — A. I don't know whether Indelible, it is a blue i)encil.
Q. Ix>ok at it and see? — A. I don't know whether it is indelible or not; it
looks more like one of these big, blue, soft lead pencils.
Q. Did you furnish supplies to these townships as county clerk? — A. Yes, sir.
Q. You furnished these election boards, didn't you, for the November 5.
1912, election with pencils with blue lead in them? — A. Yes, sir.
Q. It 'was intended as an indelible |)encil wasn't it? — A. I don't know whether
it is or not.
Q. Is it not a fact that these signatures to these Jurats are what is commonly
called indelible — blue indelible pencil? — ^A. I don't know; they may be: I don't
know.
Q. That blue-i>encil mark is very dlfllcult to mark out or erase it is not as
compared with an ordinary' lead pencil? — A. I don't think it is very hard to
erase.
Q. Well, you didn't notice, did you. in this lead-pencil writing, in blue writing.
or in black lead-pencil writing that there has been any erasures or corrections
In any of the^e oaths? — A. No, sir; I can't see that there has,
Q. From the api)earan(*e of the book at this moment it is unchanged, as far
the oaths are concerned, from what it was when it came into your iwssession
from the board of that township?-— A. 1 think It is.
Q. Brady is the next one, first precinct. Now, 1 understood you to say that
the board of county canvassers did not make their canvass fnmi any returns
that were sent by the election board from the first precinct of Brady Township,
544 CARNEY VS. SMITH.
Kalamazoo County, to the judge of probate this niorniug on your direct exjiini-
natiou; is that correct V — A. I don't know whether it Is or not. I think I de-
liended uik)u whether the returns to tlie Judge of iM*ol>ate had been oi>eDed or
not.
Q. Examine the returns. — A. If it has not been opened, they didn't make their
returns from tliat. These returns seem to be 8eale<l up; never have been
openetl.
Q. The board of county canvaj»sers did make and determine the vote and
make their canvass from the returns made by the election board of the first
precinct of Brady Township, as sent to you ns county clerk, of the November 5.
1912. general election, didn't they?— A. I think they did.
Q. You know they did, don't you? — A. Yes, sir.
Q. As clerk of that lM)ard you know that to be a fact? — A. Yes, sir.
Q. These returns you have produced here? — A. Yes, sir.
Q. That were sent to you from that precinct, haven't you? — A. Yes, sir.
Q. They are here before you now? — A. Yes, sir.
Q. Now, let's see, that second precinct, refer to the statement book retuni«l
to your oflice by the election board of the second precinct of the townsbip of
Brady of the general electlcm held November 5, 1912, certifying that the stjite-
ment book is Kigned by W. J. Yates, W. 11. Beebe, A. W. Parker. in8i>ector8 of
election, isn't It? — A. Y'es, sir.
Q. Ross Township. I show you the statement l)ook, filed in your office by
tlie election l>oard of the township of Ross, of the general election held on
November 5, 1912. The certificate to that statement book is signed by D. J.
Bailey, W. J. Becraft, and Fred G. Walkenshaw, inspectors of election?—
A. Yes, sir.
Q. By the poll book returned by tliat lM)ard of election to you as county
clerk Mr. Bailey was sworn as insi»ector of that election? — ^A. Yes, sir.
Q. And W. J. Becraft was? — A. Yes, sir.
Q. Fred G. Walkenshaw. as api)ears by that poll book, was sworn as Jin
inspector of election? — ^A. Yes, air.
Q. The board of county canvassers ff)oted the vote of that November 5.
1912, election from wliat returns? — A. From the returns made to the county
clerk's oflfice.
Q. Wakeshroa now. I call your atfentlon to the poll book of the general
election held November 5, 1912, returned to your office by the election board
of the townshi[) of Wakeshma, Kalamazoo County, and I wish you would read
tlie first certificate you find In that book, just as it is there. — ^A. (Reading:)
" OATH or INSPECTOR OF ELECTION.
" State of Michigan,
''County of Kalamazoo, ss:
'• I do solemnly Fwear that I w'lll support the Constitution of the United
States and tlie constitution of this State, and that I will faithfully discharge
the duties of the office of lns[)ector of election, held on Tuesday, the 5th day of
November, A. D. 1912, according to the best of my ability. So help me God.
**Andbew Bebge.
*' Subscrll)ed and sworn to before me. this 5th day of November, A. D. 1912.
" O. L. Crameb, Township Clerk:'
Q. Counsel did not have you read that this morning when he called your
attention to this ix)ll book. That Is correct, as you remember it? — A- I don't
remember whether I did or not.
Q. Your attention was called to the next certificate? — A. Yes, sir; I remem-
ber that.
Q. Following this of Andrew Berge, you find the oath of A, R. Masgrove as
Inspector, don't you? — A. Yes, sir.
Q. After Masgrove's oath you find that of Kllas Frost? — ^A. Yes, sir.
Q. Masgrove's jurat under his oath Is signed by Otis Cramer, and the Jnrat
under Ellas Frost's oath Is signed by Otis Cramer, without any official designa-
tion as to those two Jurats of the official authortty of the officer?— A. Yes, sir;
that is correct.
Q. The signature of Otis Cramer to the oath of A. R. Masgrove and under
the oath of Ellas Frost Is the very same signature that you find in the Jurat
under the oath of Andrew Berge? — A. Yes, sir.
CABNEY VS. SMITH. 545
Q. Under the jurat to the oaths signed by Charles E. Sweet and J. R. Mears,
as gatekeei)ers, you also tind upon the two jurats to those oaths the name of
Otis Cramer, without any official designation of his authority? — A. Yes, sir.
Q. That name Otis Cramer under those two jurats is the same signature
that you find under the name to the oath to Andrew Berge? — A. Yes, sir.
Q. Otis Cramer, therefore, apiiears by that first Jurat to have been township
clerk of that township? — A. Yes, sir.
Q, Well, just refer to the canvass book. Now, what is first down there —
refer to the book you referred to this morning that contains the canvass made
by the board of county canvassers of the vote cast In that township and pre-
cinct county of Kalamazoo, at the November 5, 1012, general election — what is
that?— A. That is Alamo.
Q. We have got that. Now read from your record of the township of Climax
the number of votes for John M. C. Smith. How many votes are shown by that
canvass for John M. C. Smith?— A. For John M. C. Smith 83, and 82 for Claude
S. Carney.
Q. Couistoek, first precinct — read the vote for John . M. C. Smith from the
first pn^cinct. — ^A. For John M. C. Smith 101, and 67 for Claude S. Carney.
Q. Oshtemo — how many votes are shown by the canvass for John M. C. Smith
in the township of Oshtemo? — A. Ninety-two.
Q. How many for Claude S. Carney? — A. Sixty-three.
Q. How many votes are shown by the canvass for John M. C. Smith In the
township of Pavilion? — ^A. One hundred and thirteen.
Q. How many for Claude S. Carney? — A. Seventy-four.
Q. How many votes are shown by the canvass for John M. C. Smith in the
township of Portage? — ^A. Seventy-four.
Q. How many for Claude S. Carney? — ^A. Fifty-seven.
Q. How many votes are shown by the canvass for John M. C. Soiith in
Prairie Konde? — A. Eighty -one.
Q. How many for Claude S. Carney? — ^A. Sixty-one.
Q. How many votes are shown by the canvass for John M. C. Smith in the
township of Richland? — A. Eighty-two.
Q. How many for Claude S. Carney? — ^A. Eighty-one.
Q. How many votes are shown for John M. C. Smith In the second precinct of
Schoolcraft Township? — A. One hundred and thirty-three.
Q. How many for Claude S. Carney In the second precinct of Schoolcraft? —
A. Ninety-five.
Q. How many votes are shown for John M. C. Smith in the fifth precinct of
the city of Kalamazoo? — A. One hundred and seventy.
Q. How many for Claude S. Carney in the fifth precinct of the city of Kala-
mazoo?— A. One hundred and forty-eight.
Q. How many votes are shown for John M. C. Smith In the eighth precinct
of the city of K<alamazoo? — A. One hundred and fifty-seven.
Q. How many are shown for Claude S. Carney as determined by the board
of county canvassers In the eighth precinct of the city of Kalamazoo? — A. One
hundred and forty-seven.
Q. What was the total vote as deterniined by the board of county canvassers
for John M. C. Smith for Rei)re8entative In Congress from all the precincts
and townships In the county of Kalamazoo? — A. Three thousiind two hundred
and eighty-eight.
Q. What was the total vote as determined by the board of county canvassers
from all the townships and voting precincts in Kalamazoo County for Claudo
S. Carney? — ^A. Three thousand seven hundred and ninety-six.
Redirect examination by Mr. Maynard :
Q. I want to inquire with reference to the township of Texas, and I want t<»
call your attention ; when I called your attention to it this morning, I asked
you If the township made a return to the board of county canvassers, and in
looking over your papers here you were unable to find It. I ask you if since th:it
you have found those returns? — A. Yes, sir.
Q. Are they here intact, sealed, and unbroken? — A. Yes, sir.
Q. Now, are you able to state whether or not the board of county canvassois
determined the vote upon the oflSce of Congressman from the township of Tons
for the general ele(!tion held in that township on the 5th day of Novenihor,
1912, from the retunis which were sent to the county clerk's office? — A. Yes. sir.
286—33 35
546 CARNEY VS. SMITH.
Q. Without examining or attempting to examine the returns sent to that
l)oard from that township, sent to the board of county canvassers from that
township In care of the judge of probate?— A. Yes, sir; they did.
RICHARD H. ELWELL, being duly sworn to testify to the truth, the whole
truth, and nothing but the truth, testified on behalf of the contestee as follows:
Direct examination by Mr. Fellows :
Q. Where do you reside?— A. City of Kalamaasoo.
Q. How long have you lived here? — ^A. About 10 years.
Q. Do you hold any official position in the county?— A. I do.
Q. What is it?— xV. Register of the probate court.
Q. How long have j^ou been register of the probate court? — ^A. Seven years
the Ist of August
Q. You weie register of the probate court of this county on the 5th day of
November lust, following the election? — A. Yes, sir.
Q. Do you recollect of the returns coming from the various townships and
precincts in this county to the probate Judge for the board of county canvass-
ers?— A. Yes, sir; I do.
Q. I will : sk you to state whether upon some of those the seals were broken
when they arrived? — A. They were.
Q. Is that an uncommon thing? — A. No, sir; we find that very^ften.
Q. Did you get any through the mall? — ^A. Yes, sir.
Q. You lire not able to state which ones? — ^A. No, sir.
Q. The leturns sent to the board of county canvassers have been in the
clerk's office? — A. I think so; I have not seen them since then.
Cross-examination by Mr. Adams :
'Q. How many envelopes h:id the seals broken in the returns to your office?—
A. I couldn't stj^te positively; there were two of them that were broken, both
seals broken. Tbeie were some that one seal was broken and the other was still
Intact.
Q. Two townships or precincts had all the seals broken? What township*
were those? — A. I couldn't stJite; I paid no attention to it, because it is a very
common thing for them to come in with the seals broken.
Q. When they came In there you put them, I suppose, all in your vault?—
A. Yes, sir.
Q. And keep them Just as they are returned to you until they are delivered
to the board of county canvassers? — ^A. Yes, sir.
Q. No changes were made in any of the returns after they came into the
V '•-' I '• i.e cf VTolr te lip to the time they were delivered to the board
of county canvassers? — ^A. No, sir,
O. Y< n h '} tie returns from every township and precinct in the county of
Kfllannwo <f tVat November 5, 1912. general election, had yon?— A. Yes, sir.
Q. You turned those over to whom? — A. I think Frank Walters, the deputy
county clerk, c. nie .n'l got them.
Q. The ('eprty clerk unrler Mr. Curtenlns, the county clerk? — A. Yea, Blr.
Q. You turned over to him the refurns from every election board, from every
town.ship and every precinct — election precinct — in the county of KaIama«oo
of that November 5, 1912, general election, didn't you? — A. Yes, sir.
April 14 ani> 15, 1918.
Mr. Fellows. I will file with the commiHfsloner notice of taking this testl-
money, tcigothcr with the acceptance of service of the same.
FRANK FAST, being firj*t duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Fellows:
Q. Mr. F. St, you live where? — A. In the township of Camden.
Q. Do you hold any official position in that township?— A. Yes, sir; Jnstice of
the peace.
Q. Were you a Justice of the peace of that township on the Sth day ot No-
vember. 1912?— A. Yes, sir.
Q. Did you sit on the board of election in that township on that day?— A. I
did.
Q. Who else composed that board? — ^A. W. C. Kentelgh.
CARNEY VS. SMITH. 547
Q. What official position did he have in the township? — A. Supervisor.
Q.. He was one of the inspectors? — A. He was one of the Inspectors and W. M.
Covey was the other.
Q. What position did he have in the township? — A. He was Justice of the
peace.
Q. You and Mr. Kentelgh and Mr. Covey wei-e the inspectors? — A. Yes, sir.
Q. You h:id three inspectors? — A. Yes, sir.
*Q. Who were the clerks? — A. Charles Fast and Mr. Hughey were clerks;
my brother was assistant clerk ; S. E. Hughey.
Q. Where was that election held? — A. In Baker's hall.
Q. Where was the voting done*: — A. The voting was done In the east end of
the hnll.
Q. Was there a stage there? — A. No, sir.
Q. After the voting was o\er where were the votes canvassed? — A. The votes
were canvassed in the west end of the hall.
Q. Was there a stage at that end? — A. Yes, sir.
Q, During the time the \otlng was being canvassed did people go in and out
on the stage where the vote was being canvassed? — A. There were a few i)eople
on the sts.ge.
Q. I mean others than the inspectors. — A. Others than the inspectors; yes, sir.
Q. Others th. n the inspectors of election? — A. Yes, sir.
Q. What time did you complete your canvass there? — A. W^ell, about 9 o'clock.
Q. Of the following morning? — A. Yes, sir.
Cross-examination by Mr. Adams :
Q. W. M. Covey administered the oaths to the inspectors and the clerks of
that election, didn't he? — A. I don't remember; I don't think he did.
Q. Who do you think did? — A. I think Mr. Crane did, but I may be mistaken
about that.
Q. Your best recollection is that Mr. Crane administered the oaths to the
inspectors there that day? — A. Yes, sir.
Q. What Crane; What is his first name? — A. Harmon Crane.
Q. W. M. Covey wiis a justice of the peace at that time? — ^A. Yes, sir.
Q. In that township? — ^A. Yes, sir.
Q. You stated that the election was held in Baker's hall? — A. Yes, sir.
Q. And that the voting was done, as I understood you, in the east end of the
hall? — ^A. Yes, sir.
Q. You stated that the votes were counted In the west end? — A. Yes, sir.
Q. All In one room? — ^A. All in one room.
Q. That is, where the people voted and the votes were deposited in the bnllot
box on that day was all in one ond the same room where the votes were
counted after the polls closed? — ^A. Yes, sir.
Q. There was a stage, you sjiy^ in the west end of the room? — ^A. Yes, sir.
Q. And the votes were counted on that stitge? — ^A. Yes, sir.
Q. How high a stage wsis that? — A. Oh, about three feet and a half.
Q. About 3i feet?— A. Yes, sir.
Q. About as high as the table here that the commissioner is writing on? — A.
I should say higher than that; I would not wonder if it wrs close to 4 feet.
Q. There were steps so you could go up on it? — ^A. Yes, sir.
Q. There was nothing to prevent i)eople from going up there and seeing the
counting l)eing made, was there? — A. No, sir; there was nothing to prevent
that.
Q. I don't supiwse very many people were in there when the count was being
made, was there? — ^A. There were quite a good mnny people in the room down
off the stMge, and there were just -i few that would look on and stnnd off wlien
we were counting.
Q. They came up on the stage if they wanted to; you didn't keep them off
the stage, did you? — A. No, sir.
Q. You didn't try to? — A. Well, we tried to in the stnrt rnd, of course, conld
have kept them off if we hrd tried very hard I expect; we didn't nv ke it a
public place, but people could walk right up there, and there were sever- 1 came
up and stood around.
Q. Well, some of the public were up on the stage and S'^w the connt being
made? — A. Yes, sir.
Q. You completed the canvass nbont 9 o'clock on the 6th? — A. Yes. sir
Q. You were a Republican at the time that election was held and the canvass
made, were you? — ^A. Yes, sir; I was.
548 CARNEY VS. SMITH.
Redirect examiuation by Mr. Fellows :
Q. Where the voting was had in the hall— was that railed off ?— A. The east
end was railed off where the voting was done.
Q. Where tli^ counting was done there was no railing? — A. No, sir.
Recross-examination by Mr. Adams:
Q. The voting was completed at the place and within the place tliat was
railed off?— A. Yes, sir.
Q. No voting was done after 5 o'clock of the afternoon of the 5th?— A.
No, sir.
Q. The polls closed at 5 o'clock? — A. Yes, sir.
Q. Is that correct? — ^A. Yes, sir.
Q. When they cloped you were still continuing the election within the railing
of that room? — ^A. Yes, sir.
HARMON C. CRANE, being first duly sworn to tell the truth, the whole
truth, and nothing but the truth, testified in behalf of the contestee, as follows:
Plrect examination by Mr. Fellows :
Q. Y'our home is in Camden? — A. Yes, sir.
Q. Did you live there at the time of the election — November 5, 1912?— A.
Yes, sir.
Q, You recollect the election, do you? — A. Yes, sir.
Q. Where was it held?— A. It was held in Baker's hall.
Q. Where was the ballot box and the booths? — A. They were iu the easl
end of the hall.
Q. Was that railed off from the rest of the hall? — A. Yes, sir.
Q. Do you know when they commenced the count? — A. Yes, sir.
Q. Where was the counting done? — A. It was done in the east end of the
hall on the stage.
Q. Was that stage railed off?— A. No, sir.
Q. Were you in there more than once while the counting was In progress?—
A. Yes, sir.
Q. At any of the times when you were in there was there anyone on the
stage where the counting was in progress outside of the Inspectors of election?—
A. Yes, sir.
Q. How many times were you in there? — A. I was in there twice.
Q. On both occasions were there outsiders on the stage where this coantlng
was going on? — A. Yes, sir.
Cross-examination by Mr. Adams:
Q. Mr. Crane, when were you in there after they began the count?— A. I
think the first time was about 9 o'clock.
Q. At night?— A. Yes, sir.
Q. You were in there more than once that night? — A. I was.
Q. When were j'ou next in there after the first time? — A. It must have been
between 10 and 11 o'clock.
Q, Things were going along all right, were they not? — A. I didn't sea any-
thing to the contrary.
Q. You didn't see anything wrong with the way the election was being con-
ducted?— A. No, sir; the election was being done regularly, I suppose, outside
of the outsiders being there.
Q. The people didn't interfere any with it?— A. Not while I was there; no,
sir.
Q. They didn't In any way Interfere with the board In making the connt? — ^A.
No. sir.
Q. Y^ou didn't see anything that was being done there that occurred to
you that it was not a fair election and coimt of the votes In that precinct, did
you? — A. No, sir; as far as the count was concerned I didn't see anything out
of the way.
Q. Tl:e counting was being done in the same room that the voting was done
in? — A. Yes, v\t.
Q. Or hrd been d<me on thit day? — A. Yes, sir.
Q. You were a Republican, wore you not, at the time of that election? —
A. Yes, sir.
Q. D?cl yen hold some offlcinl position there in Camden at that time? — ^A. I
was postmaster.
Q. You are postmaster there yet? — A. Yes, sir.
CARNEY VS. SMITH. 549
PRANK FAST, reoalleil for further crosH-examinsttioii, testilitil as follows:
By Mr. Adams :
Q. The reason you went up on the stage In that room to count the ballots
was because it was warmer ui) there on the stage, was It not? — A. Yes, sir.
Q. It was verv cold down where the voting had been done that day?— A.
Well, it was not cold that day, but then It got cold during the night down there.
Q. About the time you got reading the count, at 5 o'clock, it was get-
ting pretty chilly in that room?— A. Yes, sir.
Q. It was warmer up there on the stage?— A. Yes, sir.
Q. It was also lighter on the stage, was it notV— A. Yes. sir; we had a light
nearer and directly over the ballots.
Q. You had a lamp there?— A. Gas lamp; yes, sir.
Q. By counting there you got your Uible dire(*tly under that light?— A.
Yes, sir.
Q. While within the railing, down where tlie voting was done, you didn't
have a light?— A. We would have a light, but it was higher up, nearer the
reiling, and didn't give quite as much light.
Q. Those were the reasons you went up on the stage? — A. Yes, sir.
MILES H. BLEECH. being first duly sworn to tell the truth, the whole truth,
and nothing but the truth, testified in behalf of the contest ee, as follows :
Direct examination by Mr. Fellows :
Q. Mr. Bleech, where do you reside? — A. In Jerome.
Q. That is in what township? — ^A. Sunset.
Q. That is the township in this county east of Moscow? — A. Yes, sir.
Q. Did you formerly live in Moscow? — ^A. Yes, sir.
Q. Did you live in Moscow on the Sth of Novemlmr last? — A. Yes. sir.
Q. Do you remember the election? — ^A. Yes, sir.
Q. What official position did you have on the board of election that day? —
A. I was clerk.
Q. Who was the supervisor of that township? — A. Thomas Clyon.
Q. Did he sign a certificate as (me of the inspectors of that board? — A.
Yes, sir.
Q. Did anything occur with reference to his family that called him away? —
A. Yes, sir.
Q. What was it? — A. His mother was found dead about 11 o'clock and he
left about that time.
Mr. Adams. Is there any allegation about that?
Mr. Fellows. I don't know.
Mr. Adams. I move to strike out the testimony for the reason that there is no
allegation in the answer of any such a state of facts and as irrelevant to the
Issue and Inadmissible; and therefore for the same reasons object to any testi-
mony on the same subject that may come up from now on.
Q. What did Mr. Clyon do after he received that news? — ^A. He left at once.
Mr. Adams. May the same objection apply to all this?
Mr. Fellows. Yes; if it is not covered by the answer; we will ask to amend.
Q. What was done with reference to supplying his place on the board? — ^A.
We employed Will Straight to take his place.
Q. Was William Straight a resident of that township? — A. Yes, sir.
Q. He was not elected by the voters to take the place? — ^A, No, sir.
Q. Just appointed by Mr. Clyon? — ^A. Yes, sir.
Q. Did Mr. Straight continue on that board during the balance of the day? —
A. Yes, sir.
Q. Did Mr. Clyon come back before the count was completed? — A. I think he
. was back there, yes ; he was back before the count was completed.
Q. Do you remember whether he came back before the polls closed? — ^A. He
was back there, but he Just came in to see how things were going and went
out
Q. After the polls closed it was some time before the count was completed, and
be came back there and assisted in the count? — ^A. Yes, sir; he was back there
and helped.
Q. Was Mr. Art Smith also an inspector? — ^A. Yes, sir.
Q. Did he assist in the count? — ^A. No. sir.
Q. Why not?— A, Well, I don't think he was able to.
Q. You mean by reason of his condition? — ^A. Yes, sir.
550 GABNEY VS. SMITH.
Q. Because of something he had been drinking?
Mr. Adams. I object to this line of examination of this witness as being ex-
tremely leading.
A. Well, I heard he had been drinlcing; I couldn't swear to it because I
didn't see him drinking anything.
Mr. Adams. I move to strike out what be states he heard as hearsay.
Q. From his appearance would you say he had been drinking? — ^A. Yes, sir.
Mr. Adams. I move to strike out what the witness testified to about the ap-
pearance of Art Smith as incompet^it.
Q. Did Art Smith return after he left to assist in the count? — ^A. No, air ; he
didn't return.
Q. Was there anyone else who came in to assist in the count or attempt to
assist in the count? — ^A. Not that I saw.
Q. You don't know then whether Fred Rice assisted in the count or not?— A.
He didn't assist in anything I saw.
Q. Who did the actual counting? — ^A. Mr. Siegel did the actual tallying and
Mr. Travis and William Straight read off the count.
Q. They read them and you and Mr. Siegel did the tallying? — ^A. Yee^ sir.
Q. Did you see Fred Rice behind the railing that evening? — A. Yes, sir.
Q. Was he there very long? — ^A. I don't think he was.
Q. Do you remember at the noon adjournment what was done with the tally
sheets? — A. They were placed in the ballot box.
Q. And that was sealed? — ^A. Yes, sir.
Q. Was it left in charge of someone or was the hall locked? — ^A. The hall was
locked.
Q. No one left there? — A. No, sir.
Q. The ballot box wiis left in the ball? — A. Yes, sir; but it was sealed.
Cross-examination by Mr. Adams:
Q. I suppose that place whore that election wrs held was hnrfeed up securely
at noon? — A. Yes, sir.
Q, The entire board of ln8i)ectors, clerks, and Katekee|>ers went out, then the
door was locked? — ^A. Yes. sir.
Q. Everything was locked up eo nobody could get in there without breakiug
in? — A. Yes, sir.
Q. When you came back you found everything Just as you 1^ it?— A. Yes,
sir.
Q. You found that nothing had been tampered \iith at all or in any way
changed from what It was when you went out to the noon meal? — ^A. No, sir.
Q. That Is correct. Isn't It?— A. Yes, sir.
Q. You say that you Fnw a gentleman named Frank Rice in there? — A. FkA
Rici^
Q. Who was Fred Ulr.-e? — A. He is a merchant there In Moscow, and a butcher
and meat-market man.
Q. Well, you said you didn't see Fred Rice do anything there axceiit standing
there?— A. I did not.
Q. You were there? — A. Yes, sir.
Q. While the election was l>eing held? — A. Yes, sir.
Q. And continued there? — A. Yes, sir.
Q. You were helping to perform the duties of a clerk of that election?—-^
Yes, sir.
Q. Was there all day, were you, during the time the election was being U^*"
and the votes being cast? — A. Yes, sir.
Q. You were there during the time the count was being made up to the ^^^^
the count w»»8 completed? — A. Yes. .«lr.
Q. Fred Rice did not take any part In the election? — ^A. No, sir.
Q. He didn't do anything that was out of the way, did he?— A. Not that J
saw.
Q. You had your eyes oi)en, looking around? — A. I did most of the time: 7^
sir
Q. What time did Art Smith leave?— A. About 7 o'clock.
Q. At night?— A. At night, about that time, I think: I couldn't say exa^"^
Q. He stnyed there then from the time the polls opened in that voting P'®**
in the morning at 7 o'clock? — ^A. Yes, sir.
Q. Until the polls closed at what time?— A. Five o'docl?,
Q. And the vote had been completed? — A. Yee^ sir.
Q. Before he left?— A. Yes, sir.
CA£N£Y VS. SMITH. 551
Q. And he stayed there about two hours after the vote had stopped? — ^A.
About two hours.
Q. And then he left?— A. Yes, sir.
Q. Somebody else, you pay, came in — a fellow mimed Willinm Stniight? — A.
lie Clime in about 11 o'clock to^ake the place of Supervisor Clyon.
Q. Who was William Straight? — A. He was one of the voters at Moscow-
township, a farmer.
Q. Straight was sworu in to act as Inspector, wasn't he? — A. I supix)se so.
Q. Don't you know that he was? — A. I couldn't say whether he was sworu
In or not, but he was registered.
Q. I don't care about his being registered; but was he sworn in before he
did anything in the conduct of that election. William Straight, was he sworn
in to perform the duties of Inspector of that election to the best of his ability.
and to support the Constitution of the United States and the constitution of
the State of Michigan?— A. Yes, sir.
Q. I call your attention now to the poll book of the general election of Novem-
ber 5, 1912, township of Moscow, county of Hillsdale. Stiite of Michigan, and
ask you to read w^hat I am iH)inting to Just now. — ^A. (Reading:)
** State of Michigan, County of HiUtidale^ $n:
" I, WllHam Straight, do solemnl}' swear that I will sur)iK)rt the ronstitutlou
of the United States and the constitution of this State, and that I will faithfully
discharge the duties of the office of Inspector of this election according to the
best of my ability.
"Taken, subscribed, and sworn to before me this 5th day of November,
A. D. 191—.
"George K. Travis.
** Justice of the Peace, one of the inspectors of this election.**
Q. Tben it is signed under the oath there, how?— A. By William Straight.
Q. Is he the man you say came in there and acted on that board about 11
o'clock that day? — ^A. Yea, sir.
Q. George R. Travis was one of the inspectors of that election board there
that day, was he not, and was such inspector of that election board at th&
time that William Straight was sworn in as Inspector? — A. Yes, sir.
Q. George R. Travis administered the oath to William Straight, and he had
been acting on that election board from the time the board was organized
in the morning of that election day, didn't he? — ^A. Yes, sir.
Q. Williom Straight was a Republican in politics? — A. He was a Democrat;
he was registered as a Democrat.
Q. Well, all right — A. I am not sure; I think he was.
Q. You say that William Straight was appointed to take his place? — A.
Yes, sir.
Q. You were a Republican November 5, 1912? — A. I was registered as a
Republican.
Q. Mr. Siegel, the other clerk, was a Republican? — A. I think he was regis-
tered as a Republican, but I am not sure; I think he is.
Mr. Fhxows. What was Mr. Clyon's politics?
A. He was registered as a Democrat.
Q. What about Mr. Travis? — A. He was a Democrat.
I^FAYBTTB SIEGEL, being first sworn to tell the truth, the whole truth,
and nothing but the truth testified in behalf of the contestee as follows :
Direct examination by Mr. Fellows:
Q. You live where? — ^A. In Moscow.
Q. Did you live in Moscow Township on the 5th day of November last? — A.
Yes, sir.
Q. Do you recollect the election that occurred on that day? — A. Yes. sir.
Q. What, if any, connection did you have with the election in Moscow on
that day? — A. I was clerk.
Q. Were you there from the time the polls opened until the count was com-
pleted?— ^A. Yes, sir.
Q. Who was supervisor of that township at that time?— A. Thomas Clyon.
Q. Was he obliged to leave some time during the day? — A. Yes, sir.
Q. State to the commissioner the circumstances under which he left? — A.
Well, he got word that his mother had died; that was at noon he left.
552 CARNEY VS. SMITH.
Q. What (lid lie do with reference to pettiug somebody to take his place?— A.
He appointed William Straight.
Q. Was William Straight elected by the electors to take that place?— A. No,
sir; T think not.
Q. Just appointed by the supervisor?— A. Just appointed by the sujiervisor;
yes, sir.
Q. Wiiliam Straight was sworn in?— A. Yes, sir.
Q. Did he continue to act during the rest of the time that the board of elec-
tion wos in session? — A. Yes, sir.
Q. Including the counting of the ballots?— A. Yes, sir.
Q. Was there an Art Smith on the board as one of the insi)ectorsV — A. Yes.
sir.
Q. Did he attempt to assist in the count? — A. He did; yes, sir.
Q. What hapi)ened to some of the ballots that were on the table that ho
wns trying to count?
>Ir. Adams. I object to that ns lncom|)eteut. irrelevant, and immaterial, and
inadmissible under the answer in this case; there is no allegation of anything
c f that kind.
A. Why. I don't understand what you mean.
Q. What I meant; when he was counting the ballots — handling the ballots —
was he able to keep them all on the table in front of him or did they drop
off? — A. He had some of them on the floor or the table was not large enough
to hold them; I don*t know which.
Q. But you know that son>e of them were on the floor? — A. Yes, air; he had
a stack on the floor.
Q. Did he continue to assist In the count until the count was closed? — ^A.
No, sir; he did not.
Q. During the time that he was there did anyone else come in — any outsider
come in and attempt to assist in the count? — A. Well, 1 don*t know as they
attempted to assist; outsiders came in.
Q. Are you acquainted with Fred Rice? — A. YeB. sir.
Q. What Is his business? — A. He is the general-store man.
Q. Did he come inside of the railing that night when you were counting?— A.
Y'es, sir.
Q. Do you know whether he handled any of the ballots or not? — A. Yes, sir;
he picked ui) one ballot.
Q. You saw that? — A. Yes, sir.
Q. You were keeping track of the check marks and wns very busy? — A. Yes,
sir.
Q. Dhl you see him handle any more ballots? — A. No, sir; I don't think I
Tiotlced him handling any more than one.
Q. How long did he remain in there? — ^A. Why, i>erhaps 15 ndnutes; It Is
hard to tell.
Q. As a matter of fact, who did the work of counting the votes there; who
acted as clerks In checking up the vote? — A. Mr. Bleech and I.
Q. Who acted as inspectors in counting the ballots and reading oflf the
names? — A. William Straight and George R. Travis.
Q. Did Mr. Clyon come back at any time at all to assist In the count?— A.
Yes, sir; he came back In the evening.
Q. After he came back did he remain there continuously until the count was
completed? — A. Yes, sir; I think so; he might have been out of there off and
on different times, but he was there when we got through.
Q. Are you able to state whether he was there when you started in witli
the ballots? — A. I don't think so; I don*t think he was.
Q. After Mr. Smith went away, did he come back and assist in the count
a ga i n ? — A . N o. si r .
Cross-exn ml nation by Mr. Adams:
Q. You say that William Straight and George R. Travis read off tlLe bal-
lots?— A. Y>s. sir.
Q. You and the other clerk reconled the result of the reading of those b»i-
lots? — A. Yes. sir.
Q. You kept the correct tally? — A. Supposed to be.
Q. You tried to?— A. Yes, sir.
Q. You trie<i to keep the thing straight and all right and proper, ditln*t you,
that day, as far as you were concerned? — A. As far as I was coucerued I did.
CABNEY VS. SMITH. 558
Q. You 8j»y that Fred Rice picked np one ballot and was In there about 15
minuteB? — A. Yes, sir.
Q. Did he pick that ballot up from the floor? — A, Yes, sir.
Q. When that had fallen on the floor he picked It up? — ^A. No, sir; there
was a stack of ballots on the floor.
Q. He picked it up; what did he do with it? — ^A. Why, I don't know; he
handed it to Mr. Smith.
Q. What did Mr. Smith do with it?— A. He put it in the package he had
comited.
Q. On the floor? — ^A. On the floor or table.
Q. There wasn't any change made in that ballot that Fred Rice picked up?—
A. I don't think so.
Q. Yon didn't see anything done with it that was wrong? — ^A, No, sir.
Q. Now, this man Smith had some ballots lying down on the floor? — ^A.
Yes, sir.
Q. You didn't see anything out of the way about that did you? — ^A. No, sir.
Q. I suppose you had a great many ballots there, didn't you? — ^A. Yes, sir;
quite a good many.
Q. They were very large, were they not? — A. Yes, sir.
Q. You had to sort them out? — ^A. Yes, sir.
Q. I don't suppose you had a very big table to put them on In making that
sorting, did you? — A. No, sir; not very large.
Q. You had several tickets, different ballots, that were voted there at that
election that day, didn't you? Do you remember how many different ones
besides the ones on which the different candidates' names were? — ^A. No, sir;
I don't remember; I couldn't tell you now.
Q. Woman suffrage was voted on and the constitutional amendments? — A.
Yes, sir; I think so.
Q. And the ballots on which the candidates' names were you had sorted out
and got the straights, h'idn't you? — A. Yes, sir.
Q. You had to make different piles of those? — A. Yes, sir.
Q. There wasn't anything unusual at all or out of the way that Mr. Smith
laid one ballot on the floor? — A. I didn't say there was.
Q. You would remember if there had been something objectionable; you
were in the room? — A. I presume so.
Q. Those ballots that were lying on the floor were all counted by you gen-
tlemen in the flnal count? — A. I suppose they were.
Q. You didn't let them get away from you, did you? — A. I <lldn't calculate to.
Q. Nor you didn't find that any of them got away, did you? — A. No, sir.
Q. You stated that some outsiders came in there aside from what you speak
of Mr. Rice; other outsiders didn't interfere with the count of the ballots? —
A. I didn't say anything about anybody else.
Q. You said some other outsiders came in. Mr. Rice was one of the out-
siders?— A. He was the only one I saw.
Q. You didn't mean to say it, then, if you did, and you don't say now that
any other outsiders came In there where that board was working except this
man Rice? — ^A. I didn't see anyone el 86.
Q. You were a Republican on the 5th day of November, A. I). 1912? — A.
Yes, sir.
Q. This man Straight was a merchant there in town? — A. No, sir; a farmer.
Q. A good, fair, honorable man? — A. I think so; yes, sir.
Redirect examination by Mr. Fellows:
Q. Did you take a noon adjournment? — ^A. Yes, sir.
Q. How long a time? — A. One hour.
Q. During that noon adjournment was the ballot box kept by any member
of that board in their ix)ssesslon?
Mr. Adams. I object to that as incompetent and Irrelevant and no allegation
of such a character Is contained in the answer of the contestee, and it Is in
adnilHsible and incompetent, and I object to anything on that subject being
introduced and to all questions and answers bearing upon that subject.
A. No, sir.
Q. What was done with ItV — A. It was left In the hall.
Q. In the polling place? — A. Yes, sir.
Q. The hall was locked up? — A. Yes, sir.
Recross-examinatlon by Mr. Adams:
Q. No one was left In the room? — A. No. sir.
554 GABN£Y Va. 8HITP.
Q. The ballot box was locked?— A. Yes* sir.
Q. You went out to lunch 8t noon and was gone about an hour? — ^A. Yes, sir.
Q. The inspectors left, and the clerks and gatekeepers, then they locked the
door? — ^A. Yes, sir.
Q. Everything wns securely locked up? — A. I think so.
i Q. Who took the keys?— A. I had the keys.
I Q. You locked the door, did j'ou? — ^A. Yes, sir.
Q. You knew it was locked? — ^A. Yes. sir.
j Q. There was no opportunity for anybody to get into that room where tlw
box was unless they broke in? — A. I think so.
Q; When you cnoae back after your lunch you found, didn*t you, that every*
thing wns just exactly as you left it? — A. I think they were; yes, sir.
Q. Nobody had been in there that you could see and in any w»y tampered wit!)
anything you had left there? — ^A. No, sir.
Q. That is correct?— A. Yes, sir.
Q. The door was locked when you got back? — ^A. Yes. sir.
Q. And you init the key in and unlocked it? — ^A. Yes, sir.
O. J. GLEASON. being first duly sworn to tell the truth, the whole truth, and
nothing but the truth, testified in behalf of the contestee as follows:
Direct examination by Mr. Fexlows:
Q. Mr. (9 lee son. you live in the townsldp of Wright? — ^A, Yes, sir.
Q. You are the Democratic 8uper\'isor in that township? — A. Yes, sir.
Q. How long have you been supervisor there? — ^A. I have held the office six
years, and I was elected again this last spring.
Q. You were supervisor of that township last fall ? — ^A. Yes, sir.
Q. And at the election sat on the board of election in that township?— .<«
Tes, sir.
Q. Where wns the election held last fitll? — ^A. In Plattvllle.
Q. You alternate the election between Plattvllle and another village there?—
A. Yes, sir.
Q. And it wns Plattvllle*s turn this tlme?-^A. Yes, sir.
Q. Who constituted the board? — ^A. Myself and Howard Williams, as clerkfli
and Norton Corser was the deputy and Jesse Barber was one of the Justices of
the peace, and Burton Callow wns the other Justice.
Q. You had three inspectors apd two Justice of the peace? — A. Yes, sir.
Q. At the noon hour did you take an adJourniQent? — ^A. yes, sir.
Q. For how long a time?— A. One hour.
Q. Where was the election held in PlattviUe?— A. It was held In the Orange
hall en St of the comftra.
Q. Was the ballot box sealed up and the seal given to one of the inspectors
and the key to another and the books put in there when you went to dinner at
noon? — A. The ballot box was sealed, if I renxember right, and I held the key
to the box.
Q. Do you remember ^'ho took the seal ?— -A. I think the clerk.
Q. Was the ballot box kept in the custody of any of the other inspectors that
were left there? — A, It was left in charge of the gatekeeper while we went to
dinner.
Q. The hall was not locked up? — A. No. sir.
Q. Do you remember which one of the gatekeepers it was? — A. His name
was Alton Thompson.
Q. The members of the board when they went to dinner left him there in
charge? — A. Yes, sir.
Q. Now your home is in Waldron? — ^A. Yes, sir.
Q. Is that where Mr. Barber ]ivefi?^r-A. Yes^ sir.
Q. What time did you complete the count so you kn^w what the result
was? — ^A. Well, I think sometime about 11 o'clock.
Q. Is there a train going south along about that time from Plattvllle to Wal>
dron? — ^A. Yes, sir.
Mr. Adams. I object to that as Immaterial
The Witness. There Is a train going south soon after 11 o'clock.
Q. \Vas Mr. Barber desirous of going home on that train? — A. Yes, sir.
Mr. Adams. I object to that as incompetent, Irrelevant, Immaterial, and
hearsay.
Q. Were the returns made out and all the figures put in when Mr. Barber
signed the returns?
CARNEY VS. SMITH. 555
Air. Adams. I object to that ns incompetent, irrelevant, and immaterial, and
inadmissible under tbe answer of tbe contestee in this case; there is no alle-
gation of that character.
A. A« I remember, I couldn't be really positive about this matter, but as I
remember it was — might have been filed out in the book he
Q. But the resDlt had been reached? — A. Yes, sir.
Q. Some of the votes w«*e still blank — some of the blanks had not been filled
out yet?
Mr. Adams. Objected to as leading, and object to counsel leading the witness.
A. Well, I don't know that I can answer positively about the matter.
Q. Your best recollection is all we want. — A. I think that w^e had the work
so nearly completed that we thought he might sign the book, he was so nearly
worn out and wanted to toke the train home, and there was no need of keeping
him there any longer, and he signed the book in each place. I am not positive
about the book being all filled out; I could not Sjiy exactly.
Q. You have given your best recollection about it? — A. Yes, sir.
Crosa-examination by Mr. Adams:
Q. Mr. Gleason, this gentleman who you say went away on the trHiu who wks
a member of your board was Mr. Barber? — A. Yes, sir.
Q. When he went away at 11 o'clock at night you had the count nerirly
completed? — A. That was 11 o'clock the next day.
Q. You had the count wholly completed at that time? — A. Y'es, sir.
Q. You were not quite so expeditions as I thought you were. — A. We had
something to do.
Q. Mr. Barber signed tbe returns before he left, and you and Mr. 8hampIo»
and Mr. Williams also signed these returns, didn't yon? — A. Yes, sir.
Q. Who was the gatekeeper yon left in charge? — A. If I remember right it
was Alton Thompson.
Q. Alton Thompaon?— A. Yes, sir.
Q. When you en me back from your lunch election day to this voting place, I
suppoae you found everything Just as you had left It when you went to lunch? —
A. Yes, sir.
Q. Did you find any change made there in anything? — ^A. No, sir.
Q. Tbe ballot box was undisturbed?— A. Yes, sir.
Q. Just as you left it when you went to lunch? — A. Yes, sir; sealed Just as
we left it.
Q. ¥ou seoled it when you went to lunch?— A. Yes, sir.
Q. The seal was unbroken when you came back? — ^A. Yes, sir; the l)ox was
BtUl locked.
Q. Everything was Just exactly as you left It when you went to dinner? —
A. Yes» sir.
CAHYBELLE HANCOCK, being sworn to testify to the truth, the whole
tmtb, and nothing but the truth, testified as follows :
Direct examination by Mr. Fellows :
Q. You are d^uty county clerk of this county? — A. Yes, sir.
Q. You were deputy county clerk at the time of the election held November
5 1912? A. Yes, sir.
Q. Do you recollect the circumstances of the returns coming In of that
election?— A. Well, some; yes, sir.
Q. I show you the returns thnt came Into the county clerk from tlie township
of C-mden. and on the lMM)k. " Received in bad order nt Montgomery." Was that
written on the package when it c«me?— A. Yes, sir.
O. I «bow vou this book, which Is in this envelope, and ask you if that is the
poll book that was returned from the township of Camden of the election held
the 5th day of November, 1912?— A. Yes. sir.
Q. Turn to the first page of it and read to the commissioner the names of
the inspectors of that election.— A. Clerk of election, S. B. Hughey, Charles
Past: Inspectors of e'ection, W. C. Kentigh, Frank Fast, and Walter Covey.
Q. Turn to the oaths of tospectors, I call your attention to the third oath,
which is found on the page where the oaths are recorded, and I will ask you
to read that to the commissioner.
Mr. ADAMS. I object to anything In regard to the returns from this township
as irrelevant. Immaterial, and Inadmissible, for the reason that no allegation is
contained In the answer of the contestee permitting the Introduction of this
proof.
ft
656 CARNEY VS. SMITH.
A. (Reading:)
** I, William Covey, do solemiilj' swear, or ntflrni. thiit 1 will siii>iK>rt the Con-
BtitntiOD of the United States and the constitution of this State, and that I
will faithfully discharge the duties of Inspector of this election according to
the best of my ability.
" W. M. Covet.
" Subscribed and sworn to before me this 5th day of November, A. D. 1912.
" W. M. Cov«Y,
" One of the Inspectors of Election.^
Q. Do you recognize this exhibit which I show you now as being the envelope
in which you received the returns from the township of Allen? — ^A. I think the
Bame one ; that is my husband's handwriting.
Q. I show you the certificate on the stntenient book from the township of
Allen, found on the last luige of that book, and ask you to read the attesbitiou
commencing " in witness whereof." — A. ( Reading : )
" In witness whereof we have hereunto set our hands this day of holding said
election in said precinct, this 6th day of November, A. D. 1912.
** William A. Iles,
"William M. Boylk,
Jat Eland,
Milton Deye,
" Inspectors of Election of Precinct No. — , Township of Allen, Mich.''
Mr. Adams. I move to strike out the answer to the last question and the
tiuestion itself, on the ground that it is irrelevant and immaterial and inad-
missible under the answer of the contestee that no allegation is contained in
the answer which would admit this proof, and generally speaking, I object to
the introduction of these returns from the various voting places in the county
t>f Hillsdale, as irrelevant and immaterial under the answer of the contestee
there being no allegation contained in the answer which would admit proof
on the legality of the returns. If you will consent. I would like to have that
ap])l3^ to all this you ofTer, and tlint will save me objecting from time to tinit^
Mr. Fellows. It may be so understood, and that we offer in this case, if it
becomes necessary, to amend the answer as filed, and w^e reserve the right to
file an amended answer to the notice of contest.
Mr. Adams. I do not want it to appear on the record that we are consenting
to the amendment.
Mr. Fellows. We don't ask that ; it may be understood th»t we have each
«n amendment.
Q. I show you the poll book from this same township and ask yon to read
the attestation clause to the certificate beginning with ** In witness whereof."—
A. (Reading:)
" In witness whereof we have hereunto set our hands at the place of holding
said election in said township of Allen, county of Hillsdale, State of Michigan,
this 5th day of November, A. D. 1912.
" William A. Iljes,
"William M. Boyle,
" Jat Eland,
" Milton Dkye,
" Election InsiiCvtora, Precinct — , Allen Toicnship,
'* County of Hillsdale, State of Michigan:'
Q. I show you the tally-sheet book of this same township or precinct, and ask
.you to read the attestation clause to the certificate on the last page thereof,
commencing ** In witness whereof." — A. (Reading:)
" In witness whereof we have hereunto set our hands at the place of holding
■said election in said precinct, this 6th day of November, A. D. 1912.
"William A. Ilbs.
" William M. Boyle.
"Jay Eland.
** Milton Dbye."
Q. I sliow you a pouch addressed to the county clerk, at Hillsdale, Mich-,
purporting to contain the township of Moscow returns, and call your attention
to something that appears in writing on tlie back thereof. Will you read that
to the commissioner? — A. (Reading:)
CARNEY VS. SMITH. 557
" Recei\ ed In bad onler. W. P. Renard."
Q. Do you know who he Is? — ^A. No, sir; It is some mall clerk, probably.
Q. I show you the poll book found in this envelope returned from this town-
Hhip, on the first i)age thereof, and ask you to read into the record the names of
the inspectors of ejection and clerks. — A. The clerk of election is M. H. Bleech
and Lafayette Slegel, and inspectors of election are George B. Travis, Thomas
Clyon, and A. A. Smith.
Q. Turn to tlie pnjro where the oaths of the inspectors npi>eur, and I call
your attention to the first oath of inspector and ask you if the Jurat is signed
by anyone flllecl in? — A. It is not.
Q. I call your attention to the certificate found in the back of this ik)11 book
of this precinct and ask you to rend the attestation clause into the record, com-
mencing with "In witness whereof." — ^A. (Reading:) "In witness whereof we
have hereunto set our hands at the place of holding said election in said town-
aliip of Moscow, precinct No. — , county of Hillsdale, State of Michigan, this 5th
day of November, A. I). 1912.
"T. N. Clyon,
"George R. Tbavis,
"William Straight,
" Elvviion Jnspc<'tor«, Precinct yo. — , Totonship of MoscotD,
County of HilUdale, State of Michigan."
Q. I will ask you if on the first page of the oaths of the Inspectors you find
that William Straight took an oath as inspector? — A. I see he did; yes, sir.
Q. You find a record of his oath? — A. Yes, sir.
Q. I call your attention to the statement book from this same township or
precinct and ask you to read into the record the names of the clerks and In-
spectors in that precinct, as appears by that book. — A. Clerks, M. H. Bleech and
Lafayette Siegel ; inspectors of election, George R. Travlp, Art Smith, and T. M,
Tryon.
Q. I ask you to turn in that same book to the return of the statement of votes
piven for the office of Member of Congress for tlie third congressional district
and ask you to read the whole number of votes. — A. " Whole numi)er of votes
given for the office of Congressman, district, was 239." They were
given to the following ])erson8: John M. C. Smith, 45; Claude S. Carney, 102;
lievant Xj. Rogers, 3; Edward N. Dingley, 80; total, 239.
Q. I ask you to turn to the certificate found on the last page of the statement
book and ask you to read into the record, commencing with the words "In
witness whereof." — A. (Reading:) " In witness whereof we have hereunto set
our hands at the place of holding said election in said precinct the 5th day of
November, A. D. 1912.
T. M. Tryon,
George R. Travis,
William Straight,
" Inspectors of IJlection, Township of Moscow,
'* County of Hillsdale, State of Michigan,'*
Q. I show j'ou what purports to be an envelope addressed to the county
clerk at Hillsdale, Mich., purporting to contain the returns from the township
of Hillsdale, in this county; do you recognize that? — A. Yes, sir.
Q. I call your attention to the poll book found in the returns from this town-
ship and ask you to read from the first page the names of the Inspectors of
election. — A. Clerks of election, Irving Blurton and Bert Carter; inspectors of
election, Frank H. Carter, J. N. Warren, and II. A. Glllett.
Q. Turn to the oaths of Inspectors from this precinct and I call your attention
to the first oath, conmiencing with Frank Carter; was that oath signed by Mr.
Carter in the place for the signature? — A. No. sir; it is not.
Q. I call your attention to the second oath which appears on that page, which
oath is signed by J. N. Warren; is there any signature attached to the Jurat to
that oath?— A. No, sir.
Q. I call your attention to the oath to the gatekeepers, on the next page — •
Gilbert B. Lyon — Is the jurat to that signed by anyone V — A. No, sir; it is not
Q. On the page of the poll book where the last name appeirs. I ask you
what is the number of the last voter as appears on the jkjII book? — A. 120.
Q. Turn to the certificate found in this same book, and I will ask you to
state what certificate shows with reference to the number of votes cast?
Mr. Adams. Wait a minute. I object to i)iirt of it being read.
i(
<<
«<
658 CARNEY VS. SMITH.
Q. Read the certificate? — A. (Uendhig:) "The ixills of this electlou were
Adjourned at 12 noon for one hour for the piir|)ose of comparing the resiieelive
Hats, that they may corresiwnd each with the other. Bnllot box A was then
opened and the list of i)er8ons voting placed therein, the ballot box used at
this election being carefully locked and sealed in accordance with the provisioDB
of li.w and dell\ered to one of the insijectors of this election, the keys to an-
other iu8i)ector of election, and the seal to a third inspector, as required by law.
The polls of this election were opened at 1 o'clock i). m., after the ballot box
h »d been publicly exhibited at lei.st five minutes previous to breaking the seal
thereon. On closing the i)oll8 at 5 o'clock a proclamation was made that the
polls of this election would be closed at the expiration of 1 hour, 30 minutes,
i.nd 15 minutes, resi)ecti\ely, und the i)olls of the election were clo.sed at 5
t)*clock p. m.
" We, the undersigned, do hereby certify that we have carefully enumerated
the number of jiersons having voted, as entered uixm and s-howu by the fore-
going |K)11 lif^t, and that the total number of such persons is 115. And we da
further return thi.t we have carefully (X>mpnrcd the |)olI list with the duplicate
poll list, as required by law, and that all mistakes found in such i)oll lists have
been duly corrected by us and that both of said poll lists are now correct and
agree each with the other, ^e, the undersigned, do fuither hereby certify that
heietu is given a full and complete record of the proceedings of the board of
election inspectors. In witness whereof we have hereunto set our hands at the
place of holding suid election in said township of Hillsdale, precinct No. ,
county of Hillsdale, State of Michigan, this 5th day of November, A. I>. 1912.
" Fbank H. Cabteb,
J. N. Warsen,
H. A'. GlLLETT,
IBVING BlURTON,
•* Election Inspectors Precinct No. , Township of HiUsdcUCj
'' County of Hillsdale, State of Michiffai^''
Q. I ask you to read into the record the attestation clause that appears to
that certificate in the statement of votes, commencing ** in witness whereof."—
A. ( Reading:)
** In witness whereof we have hereunto set our hands at the place of holding
said election in said precinct this 6th day of November, A. D. 1912.
"Frank H. Gabtei,
j. n. w arbeit,
H. A. GiLLETT,
*' Irving Blubmn,
*' Election Inspectors Precinct No. , Township of Hillsdale,
** County of Hillsdale, State of Michiffan."
Q. I now show you this envelope, addressed to the county clerk, Hillsdale,
purporting to contain the returns from the township of Wright, county of
Hillsdale; do you recognize that as one of the flies in your oflice? — A. Yes, sir.
Q. I call your attention to the poll book of the township of Wright and ask
^ou to read the names of the inspectors of election and clerks. — ^A. Howard S.
Williams, clerk, and J. M. Casey. Inspectors of election: O. J. Gleason, Jeno
Barber, and Burton Shamplo.
Q. Turn to the oj'ths of insi)ectors, and I call your attention to the third oatli
of insiiector, signed by Burton Shamplo; is there any signature to the Jurat to
bis oath? — A. There is not.
Q. As far as anything appears from this return, was he sworn as an Inspec-
tor V — ^A. No, sir.
Q. Will you turn to the certificate in that poll book and read the attef5ta-
tlon clause? — A. (Reading:)
" In witness whereof we have hereunto set our hands at the place of holding
8 id election in the said township of Wright, county of Hillsdale, State of
Michigan, on the 5th day of November, A. D. 1912.
"O. J. Gleason.
" Howard S. Wiujamb,
"Burton Shamplo,
"Jesse Barber.
*• Election Inspectors Precinct No. , Township of Wrighh
'* Oownty of HiUsdaie, State of MicMgan.'*
CAKNBY VS. SMITH. 660
Q. Turn to the statement book from this same precinct, and I ask you to
read the attestation clause that appears to the certificate in that book.^-A.
(Reading:)
'* In witness whereof we have hereunto set our hnnds at the place of holding
said election In said precinct this day of November, A. D. 1912.
" BUBTON ShAMPLO,
" Jesse Barber,
" Howard S. Williams,
*0. J. Gleason,
"Election Inspectors Township of Wright^
** County of Hillsdale, State of Michigan^
Q. I show you the tally-sheet book and ask you to read the certificate that
appears at the end of the book.
Mr. Adams. I object to the witness reading any certificates that are con-
tained in the tally-sheet book in these townships pnd voting precincts, as no
certificj^te is required by law to be in the tally-sheet book.
A. (Reading:)
** We the undersignei bo^^rd of election inspectors, do hereby certify that the
foregoing is a correct tally of all the votes cast at the gener 1 ejection held on
, In the township of , county of , St- te of Michigan, on Tuea-
day, the 5th day of November, A. D. 1912.
" In witness whereof we ha^ e hereunto set orr h-^nds at the place of holding
said election in said precinct this day of November. A. D. 1912.
" O. J. Glbason,
" BuPTON Shamplo,
" Howard S. Williams,
" Jesse Barber,
"Election Inspectors Precinct T' ^uRhi'.) of Wr*'pht,
" County of Hillsdale, State of Michigan/*
Q. I show you on envelope addressed to t^e county clerk at Hllsdale, pnr«
porting to contnin the returns from the townslup of Wooflbri'lge, Hlllsd le
County. Do you recognize that as one of the papers from yoiir office? — A. Yes,
sir.
Q. I show yoiT the statement bonk from th's precinct '^n^l - Fk you if on the
first page thereof there are pny of the blanks filled In? — ^A. No, sir: nothlnsr.
Mr. i^DAMS. I object to that as incompetent. Irrelevant ^nd 'mm terij»l. The
first p'^ge in all these books do not seem to be any pnrt of the ret^'rns. but simply
the title-page.
Q. Does the first page show what precinct or whrt townsljip or whnt county
this fstatement of M)tes Is from? — A. No, sir.
Q. Does it contpin i^nything Fhowin&r the n- meF of the clerks or Inspectors of
election? — A. No, sir.
Q. Turn to the certificate in th's book and T a^k ym' to re '' *-^^e ntte**tation
eh'use. commenci»ig with tl^e words " In witness w^ ereof " — v fpe dlnp^:)
*'In wltneFs whereof we h"ve hereunto set our h' T^ds at the '^in'^e of holding
said election in wdd precinct this day of No-'>niber. A. D 1012
" Clarence LrPHFNs,
" Fd M. Oav'TT,
" Hfnpy FwTNr
"William Mills.
"Election Inspectors, Prrdnrf "r^^wn^hir f-l ^^^^ r "fh^'if^pc.
" County of Hillsdale, State of Michigan,**
Q. I will ppk you whether this e^ivelopo •>d'^ro«p<vi to t^** prvT'-tv clerK* HMls-
dwle. purporting to contain Ve reH^mp from t^e first ward of Hillsdiile. yon
recognize? — A. The fourth ward; yea, sir.
Q. Is thnt one of the files from your offi'^e? — A. Yes sir.
Q. I show yon the poll book, on the first x^'^^o tT»ereof. and ask yon to rend the
nnmes of the clerks and inspectors of thnt election.
Mr. Adams. Oblected to ns incompetent, irrelevant nnd imnr ter'al. Tt is
nothing but the title-page.
A. Clerks of election S. A. T-yon rnd N. B >f' rsh : nnd the In<«ne'^tors of elec-
tion are Mr. O'Hallon and Mr. Bnte^i— W. P. Bates.
Q. Tnrn to the page where you find the o^^ths. and 1 will • sk yon to st'te,
without reflf'lng nil of them, how many Inpnectors were Fworn in there: I me»»n,
where the word "inspector " appears in the oath? — ^A. Four.
560 GABNSY VS. SMITH.
*
Q. Four inBpectors? — A, Yes, sir
Q. Was S. A. Lyon sworn as an inspector? — ^A. Yea, sir.
Q. Was N. B. Marsh sworn as a clerk? — ^A. Yes, sir.
Q. Was N. B. Marsh the only one sworn as a clerk? — ^A. Yes,- sir.
Q. Turn to the certificate found in the book, and I ask you to read the at-
testation clause. — ^A. S. A. Lyon I find was appointed clerk.
Q. What page is that on?— A. The first page.
Q. He was sworn In as inspector? — ^A Yes, sir.
Q. It appears In the certificate at the top of the page that he was appointed
clerk? — A. Yes, sir.
Q. He was sworn in as an inspector? — A. Yes, sir.
Q. Read the attestation clause. — ^A. (Reading:)
" In witness whereof we have hereunto set our hands at the place of holding
said election in said fourth ward, precinct No. , of the city of Hillsdale,
State of Michigan, this 6th day of November. A. D. 1912.
"O. 0*Hallon,
" W. P. Bates,
" S. A. Lyon,
''Klvction Inspectors, Precinct ^Vo. , Fourth Ward,
" City of Hiilsdale, State of Michigan:'
Q. Turn to the statement book of the fourth ward of the City of Hillsdale,
and I ask you to read the attestation clause to the certificate found in the
book, commencing with the words "In witness whereof." — ^A. (Reading:)
** In witness whereof we have hereunto set our hands at the place of holding
said election in said precinct, the 5th day of November, A. D. 1912.
O. O'Hallon,
"Inspector of Election, Fourth Ward,
" City of Hillsdale, State of Michiganr
Q. Are there any other signatures to it? — ^A. No, sir.
Q. Turn to the tally-sheet book of that same precinct, the fourth ward, to
the office of Congressman, third district, and see if you find there the name of
John M. C. Smith. — A. Yes, sir.
Q. Read the names of the other candidates you find there. — A. Claude S.
Carney.
Q. Do you find any tally marks under his name? — ^A. No, sir.
Q. The next name? — A. Levant L. Rogers and Edward N. Dingley.
Q. Opposite that in the last column, under the name John M. C. Smith, read
the number of straight rotes. — ^A. One hundred and one. Tally votes, 13;
total votes, 114.
Q. Read the same with reference to Claude S. Carney. — ^A. Claude S. Oimey.
straight votes, 320; tally votes, 8; total votes, 128. Levant L. Rogers, straight
votes, 6; tally votes, 1; total votes, 7. Edward N. Dingley, straight votes, 84;
tally votes, 13 ; total votes, 97.
Q. I show you an envelope addressed to the county clerk, Hillsdale, purport-
ing to contain the returns from the first ward of the city of Hillsdale: do you
recognize that as a paper from your office? — A. Yes, sir.
Q. I show you the first page of the poll book and ask you to read the names
of the clerks and inspectors of election in that ward.
Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial, and noth-
ing but the title-paiee of the book.
A. Clerks, C. A. Terwilliger and E. E. Ransiel ; inspectors of election, Williani
R. Montgomery. J. B. Whitney, C. H. Menton, C. W. Terwilliger.
Q. Turn to the oaths of clerks and inspectors in this same book, and I usk
you if it appears that C. W. Terwilliger was sworn both as clerk and inspec-
tor?— A. Yes, sir.
Q. Turn to the certificate in the poll book, in the back thereof, and I ask
you to read that certificate into the record. — ^A. (Reading:)
"At 4.30 o'clock and 4.45 o'clock p. m. a proclamation was made that the
polls of this election would be closed at the expiration of 1 hour, 30 minutes,
35 minutes, respectively, and the polls of said election were closetl at 5 o'clock
p. m.
" CERTIFICATE.
" W^e, the inuieralgne<l, do hereby certify that we have cnrefuly enumerated
the number of persons having voted, as entered upon and shown by the fore-
going poll list, and the total number of such persons is . We do further
««
l«
"1
GABNET VS. SMITH, 561
hereby certify that .the foregoing poll lists have been carefully compared with
the duplicate list, as required by law, and that all mistakes found in such poll
lists have been duly corrected by us, and that both said poll lists are now
correct and agree each with the other. We, the undersigned board of election
inspectors, do further hereby certify that herein is given a true and complete
record of the proceedings of this board of election ineq;)ectors. In witness
whereof we have hereunto set our hands at the place of holding said election
in said ward and precinct on the 5th day of November, A. D. 1912.
W. R. MONTGOMEBY,
" J. B. Whitney,
C. H. Menton,
C. W. Tebwilugeb,
^Election Inspectors Precinct No. , First Ward,
** City of Hillsdale, State of Michigan:'
Q. Turn to the tally book, and I ask you to read from the first page the names
of the inspectors and clerks as appears from that book.
Mr. AnAMS. I object to that as irrelevant and immaterial to the point at
issue.
A. Clerks of election, W. R. Montgomery, E. E. Ransiel, C. W. Terwilliger;
inspectors of election, J. B. Whitney, C. H. Men ton, and C. W. Terwilliger.
Q. Is there a certificate appearing in that book? — ^A. In witness whereof we
have hereunto set our hands at the place of holding said election
Mr. Adams. I object to the final certificate about to be read in this tally-
sheet t>ook as incompetent, irrelevant, and immaterial and not a certificate
required te that book by law.
A. (Continuing reading:) "In witness whereof we have hereunto set our
hands, at the place of holding said election, in said precinct, this 0th day of
November, A. D. 1912.
"W. R. MONTGOMEBY,
"J. B. Whitney,
"C. H. Menton,
"C. W. Tebwilugeb,
" Inspectors of Election First Ward of the City of Hillsdale,
" HUUdale County, State of Michigan."
Q. Read the names of the clerks and inspectors of election as appear on this
page of the statement book from this same precinct.
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
A. Clerks of election, E. E. Ransiel, C. W. Terwilliger ; inspectors of election,
W. R. Montgomery, J. B. Whitney, C. H. Menton, and C. W. Terwilliger.
Mr. Adams. I object to that; that is only the title-imge, and it is incompe-
tent, irrelevant, and immaterial.
Q. I show you this envelope addressed to the county clerk, purporting to
contain the returns from the second ward of the city of Hillsdale, and ask you
whether you recognize that as a paper from your office. — ^A. Yes, sir.
Q. I show you the poll book from this precinct and ask you to read the names
of the clerks and inspectors of election appearing there.
Mr. Adams. Objected to as incompetent, irrelevant, and immaterial and being
only the title-page of the book.
A. Clerks of election, M. D. Mills and F. A. Jackson ; inspectors of election,
G. A. Jackson, Simon Woodruff, F. H. Guemey, and R. J. Corlett
Q. Turn to the oaths. I will ask you if G. A. Jackson took the oath as
inspector and also as clerk? — ^A. Yes, sir.
Q. Did he administer an oath to any of the other inspectors? — ^A. He did to
M. D. Mills ; also Mr. Corlett and Mr. Guemey.
Q. How has he signed the jurat in each instance? — ^A. G. A. Jackson.
Q. What is his official designation? — A. "One of the inspectors of election."
Q. Read the attestation clause that appears in the certificate found in the
poll book of this ward. — ^A. (Reading:)
"At 4 o'clock, 4.90, and 4.45 p. m. a proclamation was made that the polls of
this election would be closed at the expiration of 1 hour, 30 minutes, and 15
minutes, resi>ectively. The polls of said election were closed at 5 o'clock p. m.
" oebtificate.
" We, the undersigned, do hereby certify that we have carefully enumerated
the number of persons having voted as entered upon and shown by the fore-
286—13 36
562 CABNEY VS. SMITH.
going poll lists, and that the total uumber of such persoos. is 303. We do far-
ther certify that the foregoing poll lists have been carefully compared by us
with the duplicate poll list as required by law, and that all mistakes found in
mach poll lists have been duly corrected by us and that both said poll lists are
now correct and agree each with the other. We, the undersigned board of
election Inspectors, do further hereby certify that herein is given a true and
complete record of the proceedings of the board of election inspectors.
"In witness whereof we have hereunto set our hands, at the place of holding
said election, in said second ward, precinct No. — , city of Hillsdale, State of
Michigan, this 5th day of November, A. D. 1912.
"C. H. GUEKNEY,
" G. A. Jackson,
" Simon S. Woodbuff,
" M. D. Mills,
" Inspectors of Election of Precinct No. — , Second Ward,
" City of Hillsdale, State of Michiganr
Q. Referring to the oaths in this same book, I call your attention to the last
oath of inspector, purporting to be signed by Simon S. Woodruff, and ask you
If there is any jurat attached to that oath? — ^A. No, sir.
Q. As far as that appears, was he sworn as an inspector? — A. No, sir.
Q. I call your attention to the tally sheet from this same ward and to the
vote on Congressman and ask you to state what name is first in the statement
of votes? — A. Claude S. Carney.
Q. Do you recollect which candidate was first on the ticket first printed?
Mr. Adams. I object to that as irrelevant and immaterial ; the ticket is the
beet evidence ; and is the conclusion of the witness, and is not the best evidence.
A. The Republican.
Q. What appears there with reference to the vote received for Claude S.
Carney? — ^A. Claude S. Carney, straight votes, 49; tallies, 44 j total, 93.
Q. What is the next name that appears? — ^A. Edward N. Dingley.
Q. Give us the vote. — ^A. Straight votes, 28; tally votes, 82; total, 110.
Q, The next one?— A. John M. C. Smith. Straight votes, 32; tally votes, 50;
total, 82. Iievant L. Rog^s, tally votes, 1 ; total, 1.
Q. Now, turn to the certificate of correctness of the tally found at the back
part of the end of the tally-sheet book ; is that certificate filled out or signed at
all? — ^A. No, sir.
Q. No signature? — ^A. No, sir.
Q. No signatures of anyone and none of the blanks filled out?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial ; none
is required.
Q. I call your attention to the statement book of this same precinct and ask
you to read the names of the election Inspectors, as appears from the first page
thereof.
Mr. Adams. I object to that as incompetent, irrelevant, and Immaterial ; it Is
only the title page of the book.
A. Clerks of election : M. D. Mills and (». A. Jackson. Insi)ectors of elec-
tion : C. H. Guerney, R. J. Corlett, G. A. Jackson, and Simon Woodruff.
Q. I show you now an envelope, addressed to the county clerk, purporting to
contain the returns from the township of Rending, and ask you whether yon
recognize that as a paper from your oflftce? — A. Yes, sir.
Q. I show you the poll book from the township of Reading and ask you to
read the certificate that appears at the end thereof. Maybe we can shorten it
If the judge will examine it ; it does not certify to the uuiul)er of votes ]>olled in
this precinct; but if you prefer. I can read it at large.
Mr. Adams. We will concede that the certificate you refer to does not give
the total number of votes cast, but we object to it as irrelevant and immaterial,
wliether It does or not.
Cross-examination by Mr. Adams:
Q. Counsel for the contestee asked you or showed you the poll book of the
township of Reading, Hillsdale County, and called your attention to the fact
that the final certificate in the book did not recite the total number of persons
as having voted as entered upon and shown by the foregoing poll lista I will
call your attrition to that book and ask you to state whether the poll book—
ttii8l)oll book — does not show that 491 xiersons voted at that election? — A. I smi>-
pose it does.
Q. Four hundred and ninety-one names are entered in there? — ^A. Yes, sir.
CABKEY VS. SMITH. 568
m
Q. In tbat particular poll book to which that certificate I referred to is
attached? — ^A. Yes, sir.
Q. Opposite the name of each voter is a number, Is there not? — ^A. Yes, sir.
Q. It begins with the first voter as No. 1, does it not? — ^A. Yes, sir.
Q. And the last voter is 491?— A. Yes, sir.
Q. The name of each voter is given in that poll book? — ^A. Yes, sir.
Q. It is a part of the book to which that certificate is attached? — ^A. Yes, sir.
Q. So the book shows for itself how many voters there were at that elec-
tion that day? — ^A. Why. I suppose so.
Q. Referring now to the second ward of the city of Hillsdale, counsel called
your attention to the poll book. To that same poll book I again call your atten-
tion and ask you whether G. A. Jackson did not administer an oath to some of
the inspectors of that election? — A. Yes, sir.
Q. And also to one of the clerks and one of the gatekeepers, and I think you
replied that he did. That is true, isn't it? — A. Yes, sir.
Q. But before there is any certificate or oath taken in that poll book, which
G. A. Jackson signed as one of the inspectors of election, there appears a cer-
tificate which was signed by G. A. Jackson and sworn to before C. H. Guer-
ney? — ^A. Yes, sir.
Q. The first oath appearing in that poll book read on the record. — A. (Read-
ing:)
** State of Michigan, County of Hillsdale, 88 :
" I, G. A. Jackson, do solemnly swear or affirm that I will support the Con-
stitution of the United States and the constitution of this State, and that I
will faithfully discharge the duties of the office of inspector of this election
according to the best of my ability.
" G. A. Jackson.
** Taken, subscribed, and sworn to before me this 5th day of November. A. D.
1912.
" C. H. GUERNET,
*'One of the inspectors of election.'*
Q. So the name of G. A. Jackson tliat is attached to the jurat in that poll
book comes after the certificate Just read to that oath that was subscribed by
G. A. Jackson? — A. No, sir.
Q. Where is there one ahead of it? — ^A. Not ahead of it; I thought you meant
after.
Q. G. A. Jackson did not take the oath, as appears from the oaths that were
taken on the record in that poll book until after he had taken an oath before
C. H. Guemey, did he? — ^A. No, sir.
Q. I call your attention to the tally-sheet book which (Counsel for the con-
testee called your attention to, in the second ward of the city of Hillsdale, and
especially to the votes for the different candidates for Congressman contained
In that book, and in connection with that I also call your attention to the state-
ment of votes in the second ward of the city of Hillsdale, and ask you now to
read from the statement book of this second ward of the city of Hillsdale how
many votes Claude S. Carney got for Representative in Congress? — A. Ninety-
three.
Q. Does that correspond with the total number of votes as contained in the
tally sheet book? — A. Yes, sir.
Q. How many votes did Edward N. Diugley get for Representative in Con-
gress as shown by this statement book? — ^A. One hundred and ten.
Q. How many votes did Edward N. Dingley get as shown — totdl votes — ^as
shown by the tally-sheet book? — A. One hundred and ten.
Q. Referring to the name of John M. C. Smith in the statement book, how
many votes are there recorded for John M. C. Smith for Representative in
Congress?— A. Eighty-two.
Q. How many are recorded in the tally-sheet book from the same pre-
cinct?— ^A. Eighty-two.
Q. How many are recorded for Levant L. Rogers? — ^A. One.
Q. How many in that tally-sheet book? — ^A. One.
Q. Both of those books are from the same second ward' in the city of Hills-
dale?— ^A. Yes, sir.
Q. I again call your attention to that statement book, becond ward, city of
Hillsdale, from which you Just read the number of votes received by the re-
spective candidates for Congress, and I wish you would read the certificate at
the end of the statement book. — ^A. (Reading:)
564 OABNEY VS. SMITH.
II
In witness whereof we have hereunto set pur hands at the place of holding
said election in said precinct the 6th day of November, A. D. 1912.
" a H. OUEBHE,
" Q. A. Jackson,
" Simon Woodruff,
"r. j. ooklmtt,
'*lMp€clor8 of the Seoond Ward
of the City of Hillsdale, State of Michigan:*
Q. You Just read the conclusion? — ^A. I thought that was what you wanted.
Q. I would like the whole thing in, If I can get It In ; read the whole certifi-
cate.— ^A. (Reading:)
" We, the undersigned members of the board of election Inspectors, do hereby
cert^y that the foregoing Is a full, true, and complete statement of all the
votes cast at the general election In the second ward, city of Hillsdale, State of
Michigan, on Tuesday, November 6, A. D. 1012, for the election of officers and
for the purpose of voting upon the propositions as set forth In the foregoing
statement of votes. We, the undersigned board of election Inspectors, do further
hereby certify that all the returns of this board of election inspectors of even
date herewith are true and correct
" In witness whereof we have hereunto set our hands at the place of holding
said election in said precinct on the 5th day of November, A. D. 1912.
"C. H. GUKSNE,
" G. A. Jackson,
** Simon Woodbttff,
'*r. j. goblbtt,
'^Election Inspectors, Second Ward,
City of HUlsddle, State of Michigan:*
Q. I call your attention to the statement book of the general election held
November 6, 1912, the first ward of the city of Hillsdale, being one of the re-
turns in that district to which your attention was called by counsel for the
contestee and ask you to read so much of the final certificate thereon as you read
from tlie statement book last shown you? — ^A. (Reading:)
*' We, the undersigned board of election inspectors, do hereby certify that the
foregoing is a full, true, and! complete statement of all the votes cast at the
general election held in the first ward of the city of Hillsdale, State of Michigan,
on Tuesday, November 5, 1912, for the election of officers and for the purpose of
voting upon the propositions as set forth in the foregoing statement of votes.
We, the undersigned board of election inspectors, do hereby certify that all the
returns of this board of election inspectors of even date herewith are true and
correct.
" In witness whereof we have hereunto set our hands at the place of holding
said election in said precinct this 6th day of November, A. D. 1912.
" W. R, MONTGOMKBY,
"J. B. Whitnbt,
"C. H. MSNTON,
*' C. W. Tebwilligkr,
^'Election Inspectors, First Ward of the City of HiUsdaie:*
Q. Your attention Is called to the poll book from the fourth ward of the
city of Hillsdale, and I wish you would read the certificate, the final certificate,
of the correctness of the tally contained in the tally-sheet book of the fourth
ward of the city of Hillsdale, November 5, 1912, general election. — ^A. (Read-
ing : )
" We, the undersigned board of election inspectors, do hereby certify that the
foregoing is a correct tally of all the votes cast at the general election held at
the council rooms in the fourth ward of the city of Hillsdale, State of Michigan,
on Tuesday, the 6th day of November, A. D. 1912.
*' In witness whereof we have hereunto set our hands at the place of holding
said election in said precinct on the 5th day of November, A. D. 1912.
" OwKN O'Hallon,
"Chas. W. Chaffell,
"W. P. Bates,
"S. A. Lyon,
** Inspectors of Election, Fourth Ward, City of HUlsdale,
" County of Hillsdale, State of Michigan:*
CABKEY VS. SMITH. 565
Q. Now, referring to that page of this tally-sheet boolc from which you just
read that certificate, I call your attention to the tally of votes cast for all the
candidates for the office of Congressman in the third district, and I wish you
would read what you find there? — A. (Reading:)
" John M. C. Smith, straight votes, 101 ; tally votes, 13 ; total votes, 114.
" Claude S. Carney, straight votes, 120 ; tally votes, 8 ; total votes, 128.
" Levant L. Rogers, straight votes, 6 ; tally votes, 1 ; total votes, 7.
"Edward N. Dingley, straight votes, 84; tally votes, 13; total votes, 97."
Q. I show you the statement book to which counsel called your attention on
your direct examination, the statement book of the fourth ward of the city of
Hillsdale of the November 5. 1912, general election, and to that page thereof
which has the vote for the respective candidates for Congress in the third dis-
trict, and I wish you would read there what you find. — A. (Reading:)
"John M. C. Smith, 114; Claude S. Carney, 128; Levant L. Rogers, 7; Ed-
ward N. Dingley, 97 ; total, 346.''
Q. Those figures are in the column headed " Number of votes received,"
those figures you just read? — ^A. Yes, sir.
Q. Opposite the figures you have just read in each instance do the written
words showing the number of votes that each received correspond to those
figures? — A. Yes, sir.
Q. Well, that tally sheet book of the fourth ward of the city of Hillsdale.
to which you have been referring, does not appear to have any tally marks
under the respective candidates' nnmes for Congressman in the third district,
under the name of each candidate for Representative in Congress In that third
district, which show the number of tally votes each received ; it is carried out
in figures? — A. Yes, sir.
Q. But it Is not tallies under each name? — ^A. No, sir.
Q. The tally marks, I mean, under each name? — A. No, sir.
Q. Counsel called your attention to the statement book of the general elec-
tion held November 5, 1912, which was contained in an envelope containing the
returns from the township of Woodbrldge. — A. Yes, sir.
Q. Of the county of Hillsdale of that election, didn't he?— A. Yes. sir.
Q. I call your attention to the first page of that book. You testified that
was not filled out?^A. Yes, sir; I did.
Q. Is that correct? — ^A. Yes, sir.
Q. I ask you to read what is printed on the outside page of that book just
as it is?— A. (Reading:)
" General election of November 5, 1912. statement of votes. Township of
Woodbridge, precinct No. , county of Hillsdale, State of Michigan."
Q. So there is now on that book showing what township that return is from
after all, isn't there? — A. Yes, sir.
Q. I call your attention to the tally sheet book of the general election held
November 5, 1912, in the township of Woodbridge, county of Hillsdale, State of
Michigan, and I would like to have you read, please, what you find in that book
under the heading of the tally of all the votes cast for all the candidates for
Congressman in the third congressional district? — A. (Reading:)
John M. C. Smith, straight votes, 13 ; tally votes, 31 ; total votes, 44.
Claude S. Carney, straight votes, 64; tally votes, 23; total, 87.
" Levant L. Rogers, tally votes, 3 ; total 3.
"Edward N. Dingley, straight votes. 43; tally votes, 76; total, 119."
Q. Well, read the final certificate that you find in that tally sheet book. — A.
(Reading:)
"Certificate of correctness of tally. We the undersigned board of election
inspectors do hereby certify that the foregoing Is a correct tally of all the votes
cast at the general election hed at the townhouse In the township of Wood-
bridge, precinct No. '■ — , of the general election held on Tuesday the 5th day
of November, A. D. 1912.
" In witness whereof we have hereunto set our hands at the place of holding
said eection in said precinct this 5th day of November, A. D. 1912.
"Clabence Lamphebb,
tf
"Daniel W. Gavitt,
"Henby Ewing,
" WiixiAM D. Mills,
** Election Inspectors of Precinct No, , Totonship of Woodbridge,
County of Hillsdale, State of Michigan.*'
ti
566 CABNEY VS. SMITH.
Q. I show you the statement book from tbe townablp of Woodbridge of tbe
November 5, 1912, general election. Will you read what you find In that book
under " Votes given for the different candidates for Cougrees in the third con-
gressional district? "—A. (Reading:)
" John M. C. Smith, 44; Levant L. Rogers, 3; Claude S. Carney, 87; Edward
N. Dingley. 119; total, 253."
Q. I cull your attention to the poll book from the township of Wrl^t in the
general election held on November 5, 1912, and ask you to read what is con-
tained after the word *' certificate " on the back of the record? — ^A. (Reading:)
" We, the undersined, do hereby certify that we have carefully aiumerated
the number of persons having voted as shown by the foregoing poll list and tlie
total number of such persons is four hundred and forty-nine, and in figures 449.
We do further hereby certify that the foregoing poll lists have been carefully
compared by us with the duplicate i)oll list as required by law, and that all
mistakes found in such poll lists have been duly corrected by us, and tliat
both said poll lists now agree each with the other.
" We, the undersigned board of election inspectors, do further hereby certify
that herein is given a true and complete record of the proceedings of said board
of election inspectors.
" In witness whereof we have hereunto set our hands at the place of holding
said election in said township of Wright, precinct No. , county of Hills-
dale, State of Michigan, this 5th day of November, A. D. 1912.
''Albebt Nelson,
** HowABD S. Williams,
*' BUBTON SHAMPLO,
" Jesse Barber,
" Election Inspectors of Precinct No. , Township of Wright,
'' County of HiUsdale, State of Michigan,**
m
Q. I call your attention to the poll book of the general election held Novem-
ber 5, 1912, of the township of Hillsdale, and particularly to the names of the
persons voting recorded in that book. Now, there are 120 names in tliat poll
book, are there not? — A. Yes, sir.
Q. Written In ink?— A. Yes, sir.
Q. And the No. 120 is opposite the last name, isn't it? — ^A. Yes. sir.
Q. There are 120 numbers in there, and the last name is opposite the No.
120?— A. Yes, sir.
Q. That is correct, rather than what I asked you before? — A. Yes, sir.
Q. Now. opposite and In the line of the figures 16 the sixteenth name appears.
Is there any other name In there? — A. J. Drawnout.
Q. There is a cipher opposite that, isn't there?— A. Yes, sir.
Q. And opposite the figures 16 there are two ciphers? — A. Yes, rir.
Q. Passing along to the figures 58, Just before that and opposite the 57, is the
name D. E. Ewing? — A. Yes, sir.
Q. Opposite the figures 59 Is what?— A. Chris. Lozendy.
Q. Opposite the 58 Is the word "out"?— A. Yes, sir.
Q. And opposite of that are two ciphers?— A. Yes, sir.
Q. Opposite to the figures 76 what do you find?— A. " Out" and two clpbers.
Q. Opposite the figures 85 what do you find?— A. "Thrown out" and two
ciphers.
Mr. Adams. I will withdraw that last question.
Q. Opposite the "84" what do you find?— A. I find there has been a name
written in then over that in lead pencil, the word "out," and two ciphers;
evidently trying to erase the name under It.
Mr. ADAMS. I move to strike out what evidently appears.
Q. Opposite the figures "85" what do you find?— A. "Thrown out."
Q. And what?— A. And two ciphers.
Q. So in five places there are ciphers shown? — A. Yes, sir.
Q. That is correct? — A. Yes. sir.
Q. There are only 114 names on that book?— A. That is what I think; yes,
sir.
Q. Now I call your attention to a book that Is entitled " Inspectors' State-
ment, 1912, Township of Hillsdale, County of Hillsdale," at the November 5,
1912, election, containing a statement of the votes cast at that election and re-
turned by the board of inspectors of the township to your office, isn't It?— A.
Yes, sir.
CAENEY VS. SMITH. 567
Q. I wish you would read from that what you find under the head of " Whole
number of votes cast for the office of Representative in Congress " and give the
names? — A. (Reading:)
"The total number is 112, and they were given to the following-named per-
sons : John M. C. Smith receiveii 26 ; Claude S. Carney received 31 ; Levant L.
Rogers received 1 ; Edward N. Dingley received 54."
Q. Referring to the statement book of the vote for Representative in Congress
in that township November 5, 1912, general election, what do you find there of
the votes cast for the office of Representative in Congress? — ^A. John M. C.
Smith, 26 ; Claude S. Carney, 31 ; Levant L. Rogers, 1 ; Edward N. Dingley, 54 —
total, 112.
Q. That book you last read from is the book that counsel for the contestee
asked you to read the final certificate from, isn't it? — ^A. I think so; yes, sir.
Q. I want to have you read the certificate from this book that is entitled,
" Inspectors' Statement, 1912," and have you first give the figures from that
township of Hillsdale for the several candidates for Representative in Con-
gress.— ^A. ( Reading : )
II
State of Michigan, County of Hillsdale, ss:
We do hereby certify that the foregoing is a correct statement of the votes
given in the township of Hillsdale, county of Hillsdale, for the officers named
in such statement and for the persons designated therein at the general election
held in said townhouse on the 5th day of November, A. D. 1912.
" In witness whereof we have hereunto set our hands at the townhouse in
said county and State this 5th day of November, A. D. 1912.
*' Frank H. Castes,
"J. N. Warren,
" H. A. GiLLETT,
" Irving Blueton,
" Inspectors of Election.'"^
The rest of the certificate is not filled out.
Q. This book containing this last certificate you Just read was the book that
was returned to the office of the county clerk of Hillsdale County, was it not? —
A. Yes, sir.
Q. From the township of Hillsdale, together with these other books to which
counsel for the contestee directed your attention on your direct examination?—
A. Yes, sir.
Q. Refer to the envelope which contained the returns that came to the office
of the county clerk from the township of Moscow, Hillsdale County, from the
election board that acted on November 5, 1912; you stated that there was
writing on the back of that envelope, "Received in bad order — W. J. Diaw-
nout." You didn't see anybody write that on there? — ^A. No, sir.
Q. You don't know of your own Imowledge who wrote it there? — ^A. No, sir.
Q. When this envelope came to your office, did you see it? — ^A. Yes, air.
Q. When it came It was delivered to your office? — ^A. Yes, sir.
Q. Who delivered it? — A. One of the postmen.
Q. One of the postmen from the city of Hillsdale? — ^A. Yes, sir.
Q. What condition was it in when it came to your office? — A. I think just the
seal was broken.
Q. One seal, or both? — A. I think both of them.
Q. When it reached your hands as deputy county clerk you were deputy
county clerk? — ^A. Yes, sir.
Q. And were then? — A. Yes, sir.
Q. W^hen it came there to the office and you first saw it, did it contain the
tally sheet book, the Ktatement book, and the poll book to which your attention
has been directed by counsel for the contestee on your direct examination? — ^A.
I couldn't say about that, because sometimes the clerks make mistakes. I sup-
pose it did.
Q. Yon think these are the three books contained in that enevolpe when it
arrived first in the office of the county clerk of this county? — ^A. Yes, sir.
Q. I don't suppose that you in any way changed any of these returns after
they came into your office? — A. No, sir.
Q. You took g<XKi care of them after they came in to see that nobody else
changed them, didn't you? — A. Yes. sir.
Q. So that, as far as you know, they are now in Just exactly the same condi-
tion as they were when received by your office? — ^A. With this exception : That
when we looked them over and found mistakes, when the board was looking
568 CABNEY VS. SMITH.
them over we found lead-pencil marks in some of them which showed correc-
tions in errors.
Q. Will you look through that tally sheet book, statement book, and the poll
book from that township of Moscow, Hillsdale County, and see if there are any
marks in any one of those books which were not in there when those books came
into your office fli-st in that election; If so, will you please state what they
are? — A. I don't see anything.
Q. Just take the Congressmen ; that is all we are interested In. — A. There is
nothing there.
Q. Do you find anything, as fnr as the certificates are concerned, or so far
as anything in this book, or in any one of them, relating to the Congressmen
who were voted for in the third congressional district, any change from what
those records were when they first came into your office? — ^A. No, sir.
Mr. Fellows. I move to strike out tlie inspectors' statement as not any part
of the returns they should have made.
Mr. Adams. It Is a part of the returns, and it is there to consider.
Q. Referring again to the township of Moscow, I wish you would read from
the tally sheet book what that shows, as far as the votes cast for the several
candidates for Representatives in Congress in the third congressional district—
A. John M. C. Smith, straight votes, 15 ; tally votes, 30 ; total votes, 45.
Claude S. Carney, straight votes, 71 ; tally votes, 31 ; total, 102.
Levant Lr. Rogers, straight votes, 1 ; tally votes, 2 ; total, 3.
Edward N. Dlngley, straight votes. 18 ; tally votes, 71 ; total, 89.
Q. Carney— that is Claude S. Carney, isn't it?— A. C-1-a-u-d it Is; it might be
C-1-o-u-d.
Q. That is the only Carney who is voted for as Representative in Congress,
the only candidate by the name of Carney, as shown in that book or in the tally
sheet book of the Section returns from the township of Moscow; isn't that
so? — ^A. I found A. F. Carney.
Q. He is the only Carney? — ^A. The only Carney.
Q. Who was a candidate for Representative in Congress on any ticket?— A.
Yes, sir.
Q. As far as this statement book and the tally sheet book from the township
of Moscow show that is right? — ^A. Yes, sir.
Q. I show you the statement book of the general election held November 5,
1912; also the tally sheet book and poll book from the township of Allen, and
I wish you would read the certificate at the conclusion of the statement book.—
A. (Reading:) ** We. the undersigned board of election inspectors, do hereby
certify that the foregoing is a full, true, and complete statement of all the
votes cast at the general election held in said township of Allen, county of
Hillsdale, on Tuesday November 5, A. D. 1912 for the election of officers and
for the purpose of voting upon the propositions as set forth in the foregoing
statement of votes. We, the undersigned board of election inspectors, do hereby
certi^ that the returns of this board of election inspectors of even date here-
with are true and correct.
** In witness whereof we have hereunto set our hands at the place of holding
said election in said precinct this 6th day of November, A. D. 1912.
"William Iles,
"Wm. M. Boyle,
"Jay Eland,
"Milton Deye.
^'Election Ingpectorg of Precinct No. , Toumship
" of Allen, County of HiUsdale, State of Michigan:*
Q. Please read the certificate you find in the tally sheet book from that
township of Allen? — ^A. (Beading:)
" We, the undersigned board of election inspectors, do hereby certiftr that
the foregoing is a correct tally of all the votes cast at the general election held
at Ford's Hall, in the township of Allen, county of Hillsdale, State of Michigan,
on Tuesday, the 5th day of November, A. D., 1912.
** In witness whereof we have hereunto set our hands at the place of holding
said election in said precinct this 6th day of November, A. D. 1912.
** William Iles,
"Wm. M. Boyle,
" Jay EIland,
"Milton Deye,
"Election Inspectors of Precinct No, , Toumship
" of Allen, County of HUlsdale, State of MicMgan"
CARNEY VS. SMITH. 569
Q. Will yoQ read the certificate at the conclusion of the poll boolc from the
township of Allen ? — A. ( Heading : )
** We» the undersigned, do hereby certify that we hare carefully enumerated
the number of persons having voted as entered upon and shown by the fore-
going poll lists and that the total number of such persons is 310. We do further
hereby certify that the foregoing poll list has been carefully compared by us
with the duplicate poll list as required by law and that all mistakes found in such
1K)11 lists have been duly corrected by us and that both said poll lists are now
correct and agree each with the other. We, the undersigned board of election
inspectors, do further hereby certify that herein is given a true and complete
record of the proceedings of this board of election inspectors.
" In witness whereof we have hereunto set our hands at the place of holding
said election in said township of Allen, county of Hillsdale, State of Michigan,
on this 5th day of November, A. D. 1912.
" William Iles,
"Wm. M. Boyle,
"Jay Eland,
" Milton Deye,
*' Election Innpectorg of the Township of Allen,
"County of Hiflsdale, State of Michigan:'
Q. Now, referring to the envelope containing the returns from the town-
ship of Camden, Hillsdale Ck>unty, of the November 5, 1912, election, I under-
stood you to testify on your direct examinntlon that that was received in the
county clerk*s office and had indorsed on the back " Received in bad order at
Montgomery." — ^A. Yes, sir.
Q. You didn't see those words " Received in bad order at Montgomery " — you
were not present when they were indorsed on there? — ^A. No. sir.
Q. Montgomery is some station in this county? — ^A. Yes, sir.
Q. Do you remember what condition that envelope was In when It came into
your possession? — ^A. Simply that the seals were broken.
Q. Were all the seals broken? — ^A. Yes, sir.
Q. These are sealing wax seals? — A. Yes, sir.
Q. Those are the only seals on it? — A. Yes. sir.
Q. They are very brittle, are they not? — ^A. Yes, sir.
Q. When these returns came into your office they were the same, as far as
the returns were concerned, as they are now? — A. Yes, sir.
Q. Your office, when you received them, I supi>oae took care of them to see
that nobody made any changes In them after they came into your care? — ^A.
Yes, sir.
Q. And you know that no changes have been made In them? — A. Nothing;
no, sir; only as recorded.
Q. Do you find any changes? Look them over and see whether there are any
changes made in them since they came into the possession of the county clerk
of Hillsdale County, as far as any of the certificates are concerned and as far
as any of the tallies are concerned, which in any way relate to the office of
Congressman for the third congressional district of Michigan. — ^A. Nothing.
Q. You turned them over to the board of county canvassers, didn't you, when
the board met to canvass the votes? — A. Yes, sir.
Q. That was cast at that election? — A. Yes, sir.
Redirect examination by Mr. Fellows:
Q. Mrs. Hancock. I ask you what this book is I now show you? — A. It Is the
canvass book of the board of county canvassers.
Q. For the November 5. 1912. election? — A. Yes, sir.
Q. I ask you to turn to the office of Congressman for this district and read
the number of votes that w^ere returned in favor of each of the respective can-
didates by the State board of canvassers from these townships as I read them.
Camden ?~A. John M. C. Smith, 96; Claude S. Carney. 119; Edward N. Ding-
ley. 218; total, 433.
Q. Township of Allen?— A. John M. C. Smith. 85; Claude S. Carney, 103;
Levant L. Rogers, 1 ; Edward N. Dhigley, 118 ; total, 307.
Q. Township of Wright?— A. John M. C. Smith, 83; Claude S. Carney, 200;
Edward N. Dingley, 147 ; total. 430.
Q. Township of Woodbrldge?— A. John M. C. Smith, 44; Claude S. Carney,
87; Levant L. Rogers, 3; Edward N. Dingley. 119; total, 25,3.
Q. Township of Cambria? — ^A. John M. C. Smith. 70; Claude S. Carney, 136;
Levant L. Rogers, 1 ; Edward N. Dingley, 89 ; total, 295.
670 CARNEY VS. SMITH.
Q. Township of Moscow?— A. John M. C. Smith, 45: Claude S. Carney, 102:
Levant L. Rogers, 3 ; Edward N. Dlngley, 89 ; total, 239.
Q. Township of ScipioV— A. John M. C. Smith, 57: Claude S. Carney, 60; Ed-
ward N. Dingley, 69; total, 186.
Q. Township of Reading?— A. John M. C. Smith, 122; Claude S. Carney. 183;
Levant L. Rogers, 4; Edward N. Dingley, 172; total, 481.
Q. Hillsdale Township?— A. John M. C. Smith, 26; Claude S. Carney, 31; Le-
vant L. Rogers, 1; Edward N. Dingley, 64; total, 112.
Q. City of Hillsdale, first ward?— A. John M. C. Smith, 79; Claude S. Carney,
92 ; Levant L. Rogers, 7 : Edward N. Dingley, 113 ; total, 291.
Q. City of Hillsdale, second ward?— A. John M. C. Smith. 82; Claude S. Car-
ney, 93; Levant L. Rogers, 1 ; Edwaixl N. Dingley, 110: total, 286.
Q. City of Hillsdale, fourth ward?— A. John M. C. Smith, 114: Claude S.
Carney, 138; Levant L. Rogers, 7; Edward N. Dingley, 97; totel, 346.
Q. These figures which you have read from the figures returned went in to
make the totals returned to the secretary of state? — ^A. Yes, sir.
Recross examination by Mr. Adams:
Q. Adams Township?— A. John M. C. Smith, 107; Claude S. Carney, 102; Le-
vant L. Rogers, 1 ; Edward N. Dingley, 137 ; total, 347.
Q. Amboy Township?— A. John M. C. Smith, 52; Claude S. Carney, 52; Ed-
ward N. Dingley, 106; total. 210.
Q. Township of Fayette?— A. John M. C. Smith, 147: Claude S. Carney, 131;
Levant L. Rogers, 3; Edward N. Dingley, 133; total, 414.
Q. Jefl^erson Township? — A. John M. C. Smith, 106; Claude S. Carney. 86;
Levant L. Rogers, 3; Edward N. Dingley, 149; total, 344.
Q. Township of Litchfield?— A. John M. C. Smith, 110; Claude S. Carney,
132; I/evant L. Rogers, 3; Edward N. Dingley, 171; total, 416.
Q. Plttsford Townshli)?— A. John M. C. Smith, 89; Claude S. Carney, 69;
Levant L. Rogers, 3; Edward N. Dingley, 143; total, 304.
Q. Township of Manson?— A. John M. C. Smith, 84; Claude S. Carney, 60;
Edward N. Dingley. 93 ; total, 237.
Q. Somerset Township?— A. John M. C. Smith, 67; Claude S. Carney, 106;
Levant L. Rogers, 1; Eklward N. Dingley. 95; total, 269.
Q. Wheatland Township?- A. John M. C. Smith, 102; Claude S. Carney, M;
Levant L. Rogers, 3 : Edward N. Dingley, 77 ; total, 236.
Q. Third ward, city of Hillsdale?— A. John M. C. Smith, 82; Claude S.
Carney. 93; Levant L. Rogers, 1 ; Fiidward N. Dingley, 110; total, 286.
Q. Are those all that you have read here out of the record of the board of
county canvassers? — A. Ye.s sir.
Q. For Mr. Fellows and myself? — A. Yes, sir.
Q. That was the final canvass of the board of county canvassers of Hillsdale
County for the office for the various candidates for Representatives in Congress
that were returned by the various election boards from all the townships, wards,
and precincts in this county at that election? — ^A. Tee, sir.
Q. The final canvass of that vote? — A. Yes, sir.
Redirect examination by Mr. Fellows:
Q. I don't know whether your attention has been challenged to this state-
ment of votes for the candidates for Congress in the statement of votes returned
by the inspectors of election of the township of Hillsdale : if not, I will ask you
to read into the record what it shows with reference to the vote received for
the different candidates for Congressman In the third congressional district—
A. The whole numl>er of votes given for said office of Congressman In the third
congressional district was 112. They were given to the following-named
persons :
John M. C. Smith, 26; Claude S. Carney. 31; Levant L. Rogers, 1; Edward
N. Dingley, 54; total, 112.
Q. What is this pai^er which is returned with the election returns? It ap-
pears to be entitled *' Inspectors' statement, 1912. township of Hillsdale, county
of Hillsdale." — A. TheFe are the papers that came from I^msing that was seot
out there with the election supplies.
Q. The election supplies were sent to each township out of election supplies
sent to you? — A. Yes. sir.
Q. I show you another paper api)earing In this same township, which is en-
titled " Inspectors' statement " : that appears to be the return on the constltn-
tlonal amendment; that was also sent out with the election supplies? — ^A. Yea,
sir.
CABNEY VS. SMITH. 571
Q. Sometimes they are used and sometimes they are not?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial; if
they had been used, they are the returns of the board Just the same.
Q. These Inspectors' statements are sometimes returned and sometimes not? —
A. They are not always returned to the clerk ; no, sir.
Recross-examination by Mr. Adams :
Q. In this instance when I called your attention, when I was cross-examining
you, what are they called — Inspectors' what — in the instance where I called
your attention to the inspectors* statement contained with some of the returns
of some of the boards, especially those I have referred to as ** Inspectors' state-
ments," they were made out by the election boards and they were returned with
the other returns of these election boards in this particular instance to the
county clerk's office as a part of the returns, and came in the same enveloi)e
that the other returns came in? — ^A. Yes, sir.
Q. They were made out and signed by the election board in this instance to
which your attention was e8i)ecially called by me on cross-examination? — ^A.
Yes, sir.
Q. And they are the original returns, too, were they not, in this particular
Instance? — ^A. Yes, sir.
Q. From those particular boards? — A. Yes, sir.
Q. Election boards? — ^A. Yes, sir.
Mr. FELLOwer. The statement which I showed you was also an original re-
turn— the statement book? — A. Yes, sir.
M. H. BLEECH, recalled for further cross-examination, testified as follows :
By Mr. Adams :
Q. Your name is M. H. Bleech? — ^A. Yes. sir.
Q. You were one of the clerks of the election board in the township of Moscow
on November 5, 1912 ?~A. Yes, sir.
Q. The envelope which contained the returns from your election board that
was sent here to the county clerk it is claimed that the seals were broken when
it arrived at the county clerk's office. Will you take the poll book, the tally
sheet book, and the statement l)ook which were contained In that envelo|)e and
tell me whether there is anything in those books that has been changed, that
you can find, from what the books were when they were signed up by the elec-
tion board? — A. The poll book is Just the same.
Q. There has been no change in that since It left your board, has there? — ^A.
No, sir; the tally-sheet book is the same.
Q. The tally-sheet book Is Just the same, is it? — A. As far as I can seen it is.
There is a change there
Q. Are there any changes in there from what the condition was when they
left your board? — ^A. I don't see any.
Q. Do you see any In the statement book? — A. No, sir.
FRANK FAST, recalled for further cross-examination, testified as follows :
By Mr. Adams:
Q. Mr. Fast, you were on your election board from Camden Township,
November 5. 1912. were you not? — A. Yes, sir.
Q. It Is claimed that the envelope containing the poll book, tally-sheet book,
and statement book sent up to the county clerk's office was unsealed, that the
seals were broken. I wish you would examine those three books, the poll book,
tally-sheet book, and statement book, the returns from the township of Camden*
as made by the election board that conducted the election of November 5, 1912,
and tell me whether there have been any changes made in those books in any
particular that you can find, or in any one of those books since they left the
hands of your election board after that November 5, 1912, election was con-
cluded?—A. There are no changes that I can see only the marks of errors.
Q. Do you find any changes, after examining these books, are they any
different from what they were when they left the hands of your election board
November 5, 1912. or when your board got through with Its duties in con-
nection with the November 5, 1912, election?— A. Yes, sir.
Q. Do you find any changes in the poll book of that township of Camden
made since that book left your election board after their work, November 5,
1912? — ^A. Not that I can notice.
572 CABNBY VS. SMITH.
Q. Now, referring to the statement book, do you find any changes in that
statement book ; if so what are they? That is. in the figures, corrections made
in there, that you find? — ^A. There is a correction in lead pencil of the votes
cast for secretary of state.
Q. Read the correction?— A. They changed the total from 433 to 438.
Q. Any other change? — ^A. No, sir; not in any of the other officers. Here i8
a change in the number of votes given for coroner. I. A. Bates, from 222 to 212.
Q. It simply says after the 222 "error" and 213, does it not?— A. Yes. air.
Q. Are there any other corrections in that statement book? — ^A. No. sir.
Q. Do you find any changes In any of those books as far as the candidates
for Representative in Congress for the third congressional district are con-
cerned?— ^A. No, sir.
Q. Now, did you see the envelopes after these returns were sealed up?— A.
Well, I think I helped seal them.
Q. Did you see this envelope which contained the returns of that election
board of the November 5, 1912, election addressed to county clerk, Hillsdale?—
A. Yes, sir.
Q. When the returns were put In there by your election board what did yon
in the way of sealing them up? — ^A. We sealed them with wax.
Q. You had been furnished some sealing wax, I take it, by the county clerk
of this county to seal up your returns when you got ready to send them
forward to the county clerk? — A. Yes, sir.
Q. When you sealed them up in this envelope, did you seal that flap down
onto the main part of the envelope with sealing wax that was furnished you
by the county clerk? — ^A. Yes, sir.
Q. Was the package securely sealed when it left the hands of the board?—
A. Yes. sir.
Q. That sealing wax is brittle, is it not? — ^A. Yes, sir.
Q. And breaks very easily? — ^A. Yes, sir.
KAY SMITH, being sworn to testify to the truth, the whole truth, and nothing
but the truth, testified on behalf of the contestee as follows :
Direct examination by Mr. Fellows:
Q. Mr. Smith, where do you reside? — ^A. A mile and a half west of Cambria.
Q. How long have you lived in the township of Cambria? — ^A. I have lived
there 33 years.
Q. You lived there on election day, November 5, 1912, last?— A. Yes, sir.
Q. Did you have anything to do with the conduct of that election?— A. Yes,
sir.
Q. In what position did you serve on the election board? — ^A. I was one of
the clerks.
Q. Did the board take a noon recess? — ^A. Yes, sir.
Q. A noon adjournment? — ^A. Yes, sir.
Q. What was done with reference to sealing the box ; was the box sealed— the
ballot box— a strip of cloth put over it and some sealing wax put on it?— A. I
couldn't say ; I don't think there was.
Q. Where was the election held?— A. It was in Mr. Round's building on the
comer.
Q. And the box was left there during the time you took a recess for dinner?—
A. Yes, sir.
Q. Was there anyone left with it? — ^A. I think not.
Q. The door was locked? — ^A. Yes, sir.
Q. Did you have the key to the door? — A. No, sir.
Q. Do you remember who had the key to the box ? — A. Mr. Fink.
Q. Did he also have the key to the door? Who had the key to the door?—
A. Mr. Fink.
Q. After the polls were closed to canvass the votes, did anyone assist In the
counting of the votes except the regular Inspectors of the election?
Mr. Adams. I object to that as Incompetent. Irrelevant, and immaterial nnder
the answer ; there is no allegation of any such a circumstance set forth In the
answer, and the proof can not be admitted.
(Last question read.)
A. I think not
Q. Did a man named Payne assist in counting the votes? — ^A. No. sir.
Q. Did he assist In checking? — A. Yes, sir.
Q. Was he sworn in as an inspector or clerk? — A. I think not.
GABNEY VS. SMITH. 578
Q. Did he remain with the board and assist in checking until the canvass
was comi^eted? — ^A. Yes» sir.
Q. Did he comm^ice with the beginning of the canvass? — ^A. No, sir.
Q. How long after the canvass had commenced did he begin? — ^A. Well, now,
I couldn't say ; we checked awhile, then he began.
Q. It was quite a hard election. Did he take your place? — A. I think he took
the other clerk's place first.
Q. Then, did you quit and rest up and he take yonr place? — A. Yes, sir.
Q. Did he change off with the other clerk and with you? — ^A. Yes, sir.
Q. I don't understand that he had anything to do with handling the ballots^
only checking the votes? — ^A. That is all.
Q. That is correct?— A. Yes, sir.
Cross-examination by Mr. Adams:
Q. What Mr. Payne was this?— A. W. D. Payne.
Q. What was his business? — ^A. He has been working In a hardware store
there.
Q. Been clerk in a hardware store there? — ^A. Yes, sir.
Q. He was a Republican In November, 1912, was he? — ^A. Yes, sir.
Q. You were a Republican at that time? — ^A. Yes, sir.
Q. Now, when did Mr. Payne begin to do anything in the way of tallying? —
A. Well, now, I think about 9 o'cIocIe.
Q. You mean at night? — ^A. Yes, sir.
Q. On the night of November 5, 1912?— A. Yes, sir.
Q. Do you say he took your place at any time in tallying? — ^A. He first took
the other clerk's place.
Q. Who was the other clerk?— A. Andrew Fink— A. D. Fink.
Q. He first took his place?— A. Yes, sir.
Q. This Payne, the first place he took was A. D. Fink?- A. Yes, sir.
Q. Then, later on did Payne take your place?— A. Yes, sir.
Q. When Payne took your place did Fink go back to tallying? — ^A. Yes, sir.
Q. So that when Payne was tallying, either you or Fink were tallying at
the same time? — A. Yes, sir.
Q. How long did Payne take your place tallying on that board?— A. I couldn't
flay, probably an hour or such a matter.
Q. How long did he tally for Fink?— A. About the same length of time, I
think.
Q. When Payne tallied for you where were you? What did you do?— A. I
was in the building.
Q. Right around there looking on?— A. Yes, sir.
Q. And saw what was going on?— A. Yes, sir.
Q. When Payne tallied for Fink, was Fink around there?— A. Yes, sir.
Q. What was he doing, looking on?— A. Yes, sir.
Q. You and Fink each had a tally-sheet book? — ^A. Yes, sir.
Q. You kept your tallies on the book you started in with; and yon used
that book as far as you tallied on that election board, did you?— A. Yes, sir.
Q. And Fink also had a tally book like* yours? He used that for all the
tallying he did on that election board that day?— A. I think he did.
Q. When Payne was tallying for you he tallied on your book?— A. Yes, sir.
Q. When you began tallying again you went back on the same book you had
tallied on?— A. Yes, sir.
Q. And tallied the balance of the time on that same book?— A. Yes, sir.
Q. That was true of Mr. Fink, when he replaced Mr. Payne. Mr. Fink tallied
on the same book he had been using before Payne tallied? — A. I think he did;
Q. When you got through that day did your count on your tally book and
Fink's tally book agree?— A. Yes, sir.
Q. You say at noon you took a recess? — A. Yes, sir.
Q. All of the oflicers of the election board went somewhere, I take it, to
get somefhlng to eat?— A. Yes, sir. ^ „ « .
Q. I suppose the election board got hungry as well as other folks?— A.
Yes, sir.
Q. This election was held, did you say. In some hall?— A. Round's building,
that used to be used for a store building.
Q. On the first fioor?— A. Yes, sir.
Q. About how large was that room?— A. I should say probably 20 by 40,
something like that
574 CABNEY VS. SMITH.
Q. Did you have the whole room?— A. Yea, sir; all but a little; there were
some Implements in the back part.
Q. When you went to dinner at noon the ballot box was locked, and had been
locked from the time you commenced taking votes in, hadn't it?— A. Yes, sir.
Q. You do not know whether one of the inspectors sealed the hole through
which the ballots wero put Just before you went to your noon lunch that day?—
Au I couldn't say for suro.
Q. But the door was locked when you went out at noon?— A. Yes, sir.
Q. Nobody Jeft in there?— A. No, sir.
Q. Did anybody go in there and disturb any of your election records, returns,
or ballot box, or books, or anything you had there that you used for that elec-
tion ; they could not unless they broke in or got the key and unlocked the door,
could they? — A. No, sir.
Q. When you got back after lunch you found everything Just as you left it
when you went to lunch, did you? — ^A. Yes, sir.
Q. You did not find that anybody had disturbed or took anything, or been In
thero while you gentlemen were at your lunch? — ^A. No, sir; everything was
all right.
Q. There was nothing in any way to make you suspicious that anybody bad
in anyway tampered in anyway with any part of your election i>araphemalia
you had while you were at your noon lunch, was there? — ^A. No, air.
Q. Now, I want to call your attention to the poll book from that township
of Cambria of the general election held November 5, 1912. Henry Fink, I see,
signed that certificate ; he was one of the members of the board that day, was
he?— A. Yes, sir.
Q. C. A. Peters was one of the members of the board? — ^A. Yes, sir.
Q. He also signed the certificate? — A. Yes, sir.
Q. And J. W. Lande?— A, Yes, sir.
Q. He was also a member of the election board that day? — ^A. Yes, sir.
Q. Now, you Just please start in and read what there is on that page there,
beginning with the adjournment of the polls. — ^A. The polls of this election
were adjourned at 12 o*clock noon for one hour. Previous to such adjonnunent
the clerks of this election compared their respective lists of the persons voting
and made them to correspond each with the other. The ballot box A was then
opened and a list of the persons were placed therein, the ballot box used at this
election being carefully locked and sealed in accordance with the provisions
of the law and delivered to one of the inspectors of this election and the keys
to another inspector of the election and the seal to the third inspector, as re-
quired by law. The polls of this election were opened at 1 o'clock p. m., after
said ballot box had been publicly exhibited at least five minutes previous to
breaking the seal thereon.
Q. Give us the whole of it.— A. At 4 o'clock, at 4.30. and 4.45 o'clock p. m. a
proclamation was made that at the expiration of 1 hour, 90 minutes, and 15
minutes, respectively, the polls of said election were closed at 5 o'clock p. m.
" CERTIFICATE.
" We. the underRlgne<l. do hereby certify that we have carefully enumerated
»ne numl)er of i)ersons having voted as entered upon and shown by the fore-
going poll list and that the total number of such persons is 305. And we do
hereby certify th«t the foregoing poll list has been carefully compared with the
duplicate poll list as required by law, and that all mistakes found in such
iwll lists have been duly corrected by us, and that both of said poll lists are
now correct and agree each with the other.
** We. the undersigned board of election inspectors, do further Jiereby certify
that herein is given a true and complete record of the proceedings of" this
board of election inspectors. In witness whereof we have hereunto set our
hands at the i)lace of holding said election in the township of Cambria, precinct
No. 1, county of Hillsdale, State of Michigan, this 5th day of November, A. D.
1912.
"Hewbt Fink.
" J. W. T^NDE,
"O. A. Petebb.
" Election Inspectors Precinct No. 1, Toionship of Cambria,
" County of HUUdale, State of Michiffanr
CARNEY VS. SMITH. 676
Redirect examination by Mr. Fellows :
Q. This certificate you Just read is a printed certificate with Just a few
blanlLB in it?-— A. Yes, sir.
Q. Down to the words "dose of the polls at 4 o'clock, at 4.90 o'clock, and
at 4.45 o'clock p. m., etc. ; the certificate is Just a printed form? — ^A. Yes, sir.
Recross-examination by Mr. Adams :
Q. The names are signed in ink to that certificate? — A. Yes. sir.
W. D. PAYNE, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestee as follows:
Direct examination by Mr. Fellows :
Q. I never had an opportunity to talk with you, but you are a resident of
Cambria Township? — ^A. Yes, sir.
Q. How long have you lived there? — ^A. Thirty-three yeara
Q. Do you live in the village? — ^A. Yes, sir.
Q. Do you remember the occa8i<xi of there being an election last November
5?— A. Yes, sir.
Q. Were you in Cambria that day? — ^A. Yes, sir.
Q. And voted?— A« Yes, sir.
Q. After the polls were dosed did you assist in tallying the votes? — ^A. Yes,
sir.
Q. Whose place did you take?— A. Mr. Fink's.
Q. He was the township clerk? — ^A. Yes, sir.
Q. About what time in the evening was it you took his place? — ^A. I should
Judge about 9 o'clock, about; I Just came out of the store; I think atH)Ut 9
o'clock.
Q. You were not sworn before you commenced tallying? — ^A. No, sir.
Q. And had not been sworn to attend and act as clerk or inspector up to that
time? — ^A. No, sir.
Q. Now, you tallied for Mr. Fink and in his place for about how long? — ^A.
I should Judge an hour.
. Q. Did you tally for anybody else? — ^A. Yes, sir.
Q. Who?— A- Mr. Smith.
Q. He was the other clerk of the election? — ^A. Yes, sir.
Q. How long do you think you tallied for him? — ^A. Well, of course, I don't
know and can't call to mind off hand. I should say I worked an hour for
Mr. Fink and was off an hour, then took Mr. Smith's place possibly an hour;
I will not say.
Q. Wei-e you there when they were finally through? — A. Yes, sir.
Q. You were not asked to and did not sign the returns as clerk? — ^A. No, sir.
Q. W^hen you took Mr. Fiuk^s place you used his book? — A. Yes, sir.
Q. And when you took Mr. Smith's place you used his book? — A. Yes, sir.
Q. Who read the ballots? — A. Mr. Henry Fink. Mr. Lnnde, and Mr. Rogers.
Q. Three in^iectors instead of two? — ^A. Yes. sir.
Cross-examination by Mr. Adams :
Q. I suppose. Mr. Payne, that when you were keeping those tallies you tried
to keep them honestly, correctly, and fairly? — A. Yes. sir.
Q. You didn't put down any tallies at any time while you were tallying there
on that board, did you, for any person that was not called off to you? — ^A.
No, sir.
Q. I suppose when you tallied that you and the other tally clerk in some way
called off to each other, didn't you? — A. Yes. sir.
Q. What did you do; tell us what you did?— A. To be sure, first one would
call then the other, and, say. Carney had a vote, we would say " one " for
Carney, and if on the next ticket he got one we would say *' two," and so
on until we got five, then we always called ** check."
Q. You drew a mark across the four tallies? — A. Yes. sir.
Q. It was tallied in that way? — ^A. Yes, sir.
Q. When you were tallying you called off that way, and did the other clerk
do the same thing? — A. Well, maybe one man would call down through one
ticket, and, if a big ticket, maybe the other man would. We did it to be sure
they were right.
Q. Then, if there was any mistake, you corrected it?— A. Occasionally a man
would misspeak, and if he did the other man caught him.
676 CARNEY VS. SMITH.
Q. Then, if you made a mistake, the other one called, and if you found it
put down wrong you would change it? — ^A. So they would agree.
Q. You tried fairly and honestly to record these votes Just as they were
called by the man or men reading the ballots? — A. Yes, sir.
Q. For every candidate ?^A. Yes, sir.
Q. For the different candidates voted for at that election for Representatlyes
In Ck)ngres8 — did you trj" to put down honestly and ftiirly and correctly the
ballots as they were called off for the person or persons that were called off for
by the men reading from the ballots? — A. Yes, sir.
JAY CAMPBELL, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified as follows:
Direct examination by Mr. Fellows :
Q. Your home is where? — A. Reading, Hillsdale County.
Q. You live in the village?— A. Yes, sir.
Q. Now, that village is in the township of Reading? — A. Yes, sir.
Q. Do you recollect the circumstance of the election November 5 last?—
A. Yes, sir.
Q. Were you an officer on that board? — A. Yes, sir.
Q. What position did you fill in the township? — A. I was leading ballots.
Q. Who else was on the board that day as inspectors? — ^A. Mr. Galloway and
Mr. Northrop.
Q. How large a place is Reading village? — ^A. Ten or twelve hundred.
Q. Did you have quite a large vote there? — A. Yes, sir.
Q. Did your board take any recess at noon? — ^A. No, sir.
Q. Do you know how many votes were cast without referring to the record?—
A. I don't know that I do ; four hundred and something.
Q. Four hundred and ninety-one; is that your recollection? — ^A. Yea sir.
Q. Now, did your Iwllot box in that ward become filled up so you had to get
another box? — ^A. Yes, sir.
Q. About what time of day was that?— A. I couldn't remember; I think it
was afternoon, though.
Q. What did you do to take care of the situation? — ^A. We had another box
brought, a wooden box, nailed up, with a slot cut into the top.
Q. Was there any lock on that box? — ^A. No, sir.
Q. You had a separate box for the amendments? — ^A. Yes, sir.
Q. This box I am calling your attention to was a box in which the ballots for
candidates were cast? — ^A. Yes, sir.
Q. After the election was over how did you get into that box that had no
lock on it for the purpose of getting the votes out? — ^A. We pried the cover off.
Q. The cover was nailed down? — ^A. Yes, sir.
Q. Was there any lock put on it after the votes were counted? — ^A. No, sir.
Q. Were there any electors to whom their votes were delivered by the mem-
bers of the board at any other place than within the railing?— A. Yes, sir.
Mr. Adams. I object to that and move to strike out the answer fbr the reason
that there is no allegation in the answer of the contestee and that It is irrele-
vant, immaterial, and inadmissible.
Q. Go ahead and tell the circumstances of that — ^A. Well, our election took
place on the second fioor.
Q. In the town hall?— A. Yes, sir; in the village hall. They could not get up
there, and they had spoken to some one and asked if there was not some way
they could vote.
Q. So that question came up before the board? — ^A. Yes, sir; and they agreed,
all the challengers did, and there was no objection made whatever.
Q. After that had been determined by the board what was done with reference
to providing them with ballots? — A. The two challengers went down and myself
and Mr. Northrup, I think, and I took the ballots with me. three in ]\nmber, and
they were on the sidewalk at the foot of the stairs, and they voted there, and
their ballots were folded up and handed to the clerk.
Q. What did he do with them?— A. He put them in the ballot box or handed
them to the chairman.
Q. Took them back upstairs? — A. Yes, sir.
Q. And put them in the ballot box?— A. Yes, sir; I remember they were put
in the ballot box.
Q. Were there any other votes cast there that the votes were challenged be-
cause they were not registered? — A. I think there was early in the morning.
CARNEY VS. SMITH. 577
Q. Were there auy votes cast by men who were not registered there?
Mr. Adams. I object to that as irrelevant, immaterial, and inadmissible under
the answer in this case. In the morning one or two came in. I think two, and
the challengers objected. Their names were not there, but they supposed they
were registered, but come to find out they had registered in the village regis-
tration, and they supi)08ed that was all thnt was necessiiry; and I think, if I
remember right, they were sworn in, two of those votes.
Q. They had registered at the village election and supposed they were regis-
tered at this election, but were not? — ^A. Yes, sir; they supposed that was ail
that was necessary.
Q. They swore they were electors in the township and were permitted to
vote? — ^A. Yes, sir.
Q. How many do you think there were of them? — A. I think two, if I re-
uiember right.
Q. Now, after the polls were closed and you were unfolding and sorting out
the ballots and putting them in different piles, did anybody except the inspectors
of election assist al>out that? — A. No, sir.
Q. Did anyone help unfold and sort the ballots? — A. Weil now, possibly.
I flm not sure about that. Possibly the gate keei)er might have helped unfoid
them. . I am not sure about that.
Q. Isn't it your recollection that one of the gatekeer)ers did do that? — A. I
nm not real sure about that. He may have done so.
Mr. Adams. I move to strike out what might have been done as a conclusion
jiud incompetent.
A. Well, it is i^osslble one did.
Mr. Adams. I move to strike out the answer.
A. I will not swear to It.
Q. Would that be your best recollection? — A. Yes, sir.
Mr. Adams. I object to that as leading.
Q. Do you remember which one of the gatekeepers It was? — A. No, sir; I
do not.
Cross-examination by Mr. .Vdams :
Q. You were what on that board? — ^A. During the election I delivered the
ballots.
Q. What was your position on the board? — A. I was justice of the peace.
Q, You were not acting as justice of the peace exactly on the election l)oanl,
were you? What were you acting as? — A. I wns acting as one of the electors.
Q. You are sure about that? — A. Why, yes.
Q. You were not acting as an elector, were you ? — ^A. Yes, sir.
Q. You were? — A. Yes, sir.
Q. Weren't you acting as an Inspector? — A. Well, an Inspector.
Q. Are tbey one and the same thing — an Inspector and an elector? — ^A. Yes.
sir.
Q. How long have you been a justice of the i)eace down there? — ^A. About
seven years.
Q. And you don't think there is any difference between an elector and an In-
spector, do you? — ^A. Yes, sir.
Q. W'ell, What is it?— A. Well
Mr. Fellows. I object to it as immaterial.
Witness. Well, now, I can't define it.
Q. Can you tell us what an elector is? — A. I suppose an elector is one that la
on the board.
Q. What is an inspector? — ^A. He is an inspector.
Q. One that is not on the board? — A. No, sir.
Q. What is an inspector? — A. One that Is on the board.
Q. What is the difference between an elector on the board and an inspector on
the bo.Td? — A. I told you I didn't think I could explain the difference.
Q. Well, you were one of the fellows there who — you were not clerk? — ^A.
No, sir.
Q. You were not a gatekeeper? — ^A. No, sir.
Q. Neither of those two? — ^A. No, sir.
Q. What did you do?— A. I leaded the ballots.
Q. Put the initials on the ballots?— A. Yes. sir.
Q. You were a Republican, were you not, at that time? — ^A. Supposed to be.
Q. And hjive been about all your life?— A. Yes, sir.
286—13 37
678 CARNEY VS. SMITH.
Q. And lire now? — A. Yes, sir.
Q. Mr. Gallowjiy wus a member of tlmt botird, wiisn'r heV — A. Ye«, sir.
Q. Eki. K. (Jalloway was one of the inspectors? — A. Yes, sir.
Q. He was a Uepublican? — A. Yes, sir; I guess so.
Q. You have alwa3's l^uowu him and understood him to be a Republican?— A.
Yes, sir.
Q. He Wiis elected as sucli ou the Republican tieliet as justice of the peace In
tliat township? — A. Yes, air.
Q. And Mr. Northrup was an inspector there? — ^A. Yes, air.
Q. He was wl;at; a justice of the iieace? — A. Yes, sir.
Q. He was elected justice of the peace? — A. Yes, sir.
t}. He acted on that board? — A. Yes, sir.
Q. Mr. Galloway was what; supervisor? — A. Yes, sir.
Q. Republican supervisor from Reading Township? — A. Yes, sir.
Q. He was the Republican supervisor from that township at the very time
thnt that November 5, 1912, election was held? — ^A. Yes, sir.
Q. He was chairman of tlie board? — A. Yes, sir.
Q. Now, you stated that the ballot box got filled up? — A. Yes, sir.
Q. Had a very large vote there that day? — A. Yes, sir; larger than usual.
Q. The bnllots were very large, too, weren't they? — A. Quite large; yes, sir.
.Q larger than usual? — ^A. Yes, sir.
Q. Your regular ballot box that you had for talcing in the votes at that elec-
tion in thiit township was not large enough to hold them all? — ^A. No, sir.
Q. Now, about what time in the day did you begin to use the other l>ox?— A
Now, I can't remember just what time; I think along in the afternoon; after
dinner.
Q. How long before the ik)11s closed? — A. It must have been three hours or
lietter.
Q. Do you Icnow how many hours it was before the polls closed? — ^A. No, sir;
I do not.
Q. Why do you say three hours before if you don't Icnow? — A. I don't know
exactly.
Q. Why do you nvy three hours before If you don't know how long before the
polls closed that you began using that box to put the ballots in; can you answer
thntV — A. I have answered it as correctly as I can.
Q. Have you answered it all you can answer it? — A. Yes. sir. I can't remem-
ber just how long it was.
Q. You got a store box, did you? — A. Yes, sir; I think it was a iMwt box, If I
remember right.
Q. A good substantial box? — A. Yes, sir.
Q. A wooden box? — A. Yes, sir.
Q. You nailed tlie cover down on it tight, did you? — A. Yes, sir.
Q. And cut a slot in to put the ballots through? — A. Yes, sir.
Q. It wns nailed down pretty strong, was it not — substnntial? — ^A. Yes, sir.
Q. You nailed It down so it would be very hard for anybody to get in there
without bre:iklng the lid, didn't you? — A. They would have to pry the lid up.
Q. I Fay you nailed it down so tight it would have been difficult for anybody
to pry the lid off without breaking it? — A. Yes, sir.
Q. Then you imt some ballots in It? — A. Yes, sir.
Q. Your bojird did not go away from there that day, did it? — ^A. No, sir.
Q. It stayed there from the time the election was conmienced in the morning
ulitil the votes were counted that were cast there that day, including those you
put in the store box and until the returns were made out, your board stayed
right there and did its work and completed the returns? — ^A. Well, now, I
can't remember whether the whole board came to supi)er or not; there was
some of them stayed there.
Q. Some of the board, anyway, staye<l there? — ^A. Yes, sir.
Q. I supiKise possibly one went out at a time and got his 8upi)er, or some-
thing of that kind? — A. Well, two or three, maybe; I couldn't tell that
(). You don't remember about that? — A. No. sir; I know jmrt of them stayed
and part of them went and got their supi)ers.
Q. Staye<l right there with the ballot box, tickets, etc., and looked after
thcuj? — A. Yes. sir.
Q. And saw they were taken care of? — A. Yes, sir.
Q. There was nothing irregular occurred, the vote was not in any way
affected, that you know of, by the use of that box and putting those ballots
in it, was it?— A. No, sir.
OABNEY VS. SMITH. 579
Q. In the morning, was it, when you say you went downstairs to receive
baUots from some voters? — A. No, sir; I don't think it was in the morning.
Q. When was it? — ^A. I thinly in the afternoon.
Q. You think in the afternoon? — A. Yes, sir.
Q. You had some discussion about going downstairs and getting those votes,
didn't you? — ^A. No discussion at all until the question en me im
Q. There was some discussion then. Of course, the question came up, and
when It came up there was some discussion, was there not? — ^A. Yes, dr.
Q. Who brought the question up? — ^A. I think the chairman brougtit it up
first.
Q. Who was there when it was brought up besides the members of the
board? — A. Oh, there was — inside of the railing?
Q. In the room outside of the railing; do you remember? — A. I couldn't tell
you.
Q. Was the postmaster there, Mr. Kirby? — A. I know him.
Q. He was the postmaster there at that time? — A. Yes, sir.
Q. He came in, didn't he, to your board wbere you were holding that election
nnd suggested that the votes of those men be obtained who were not able to
come upstairs and vote; that was the first way the thing came up, was it
not? — A. Well, now, you say Mr. Kirby; I couldn't say whether he came up
there or not; I stated the first I knew of it our chairman told us.
Q. Mr. CJorbett was the postmaster, instead of Mr. Kirby. Did you see him
there while the matter was under discussion? — A. I couldn't tell you whether I
cUd or not.
Q. Can you say you did not? — A. No, sir; I couldn't say whether I did or not.
Q. Do you know whether he was tliere about that time or whether he was hot
there? — ^A. I couldn't tell you.
Q. You can't tell?— A. No, sir.
Q. Who did come and request the board to do that? — A. The chairman, I
guess, of the board.
Q. Who came there and requested the chairman or made any request of any
member of your board that the votes of those men be received in that man-
ner?— A. Well, now, you ask that question, and you want me to state who the
person was?
Q. Yes; if you know. — ^A. Now, all I know about that is what I heard.
Q. Were you not there? — A. Yes, sir.
Q. Don't you know who came up and requested the board to do it? — A.
No, sir.
Q. You are sure about that, now? — A. All I know about that is what was
stilted after that.
Q. You have no recollection on that point? To refresh your recollection, I
will ask you if you do not recollect that the postmaster was up there and sug-
gested to some member of your board, as far as those votes were concerned, that
they be received down on the sidewalk? — A. There were three of them.
Q. There were but two suggested there, were there? In the first place, there
were but two men that it was suggested that you go down, or somebody go
down, and get the votes of? — ^A. That may be so.
Q. Isn't that true; isn't that your recollection of it now? — A. Well, now, I
will not say whether there was one or two men first or not.
Q. Isn't \t a fact that there were Just two men that it was proposed to some
officer of that election board that they go down and get their votes, downstairs,
on that day when the matter first came up before your election board?— A. I
would not be surprised ; still I would not want to swear to that now.
Q. Don't you know that is so?— A. No, sir; I do not. That is my recollection
of it.
Q. Two, at first; that is your recollection of It now?— Yes, sir.
Q. Those two men suggested were both Republicans? — A. No. sir.
Q. As you supposed, you supposed they were both Republicans, didn't you? —
A. No. sir; I did not.
Q. One was a Republican?— A. Well, yes; I didn't see his ticket, though.
Q. Chie was a Republican and you supposed the other man was a Republican
when it was proposed that you go downstairs afid take his vote?— A. I didn't
propose it
Q. One of those two men was a Republican? — X. Yes, sir.
Q. The other man supposed, at that time when this was proposed, to be a
Republican? — A. No, sir.
Q. Who was the other one? — A. Andrew Riser.
580 CARNEY VS. SMITH.
Q. Who was tlie Reiml)IIcan?~A. Wllllniii H. Hill.
Q. Whnt was the other's name? — A. Andrew Riser.
Q. He tunieil out to be a Prohibitionist? — A. He had been, 1 suppose; for a
good man>' years.
Q. He was a Prohibitlopist, was heV — A. It was supposed he waa
Q. Now, then, you went downstairs, didn't you? — A. Yes, sir.
Q. When you went downstairs you snpiwsed you were ^oinj^ down there to
get the votes of two men. didn't yon; of two different men? — A. Y^es, sir.
Q. After you got down there the third man came along and voted? — ^A. Yes,
sir; I think he came there, if I remember right, before we got through with the
two.
Q. I thinlk you have got that straight now. You did not contemplate the third
man when you went downstairs to get the votes of the two? — A. No. sir; I think
that is right.
Q. You finally got the votes of the three men? — ^A. Yes, sir.
Q. One was a Republican and one. as you understood it. was a Prohibitionist,
and the other one was what — a Democrat? — A. You bet, he was.
Q. He was the fellow you didn't have in mind when yon went downstairs to
get those votes? — A. I didn't have in mind anyone.
Q. That Democrat's name was not suggested when you were upstairs, before
you went down to get those two votes? — A. I couldn't say as to that.
Q. He was the last man you got, wasn't he — ^the Democrat downstairs?—
A. Do you mean to say I would not have went down?
Q. I want you to answer my que*<tion. — A. I will if T can.
Q. The DenHK*rat vote there downstairs on that occasion was the last man to
vote, wasn't he? — A. I think he was; yes, sir.
Q. Do you swear now that the iwatmaster did not come up there and suggest
that you go downstairs and get the vote of that Republican and that ProhIbi>
tionist? — A. No, sir; I will not say w^hether he did or not.
Q. You took the ballots from those three men and took them upstairs and
put them in the box? — A. Yes, sir.
Q. Do you know on that day that Edgar O. Dowd, who was one of the— yon
testifle<l this morning that two men came there and some objection was made
to their voting, did you?— A. I think the challengers did not find their names
on the book, and they objected to their voting.
Q. You testifietl, did you, that two men came in there in the morning to vote
and some objection was made by some one to those two men voting? — ^A. Yes,
filr.
Q. Who were they? — A. I couldn't tell you.
Q. Didn't you hear the obje<*tion made to them? — A. Who made the objec-
tion?
Q. Who were the men who wanted to vote? — A. I couldn't tell you now who
they were.
Q. Can't you give us the name of one of them? — A. No; I couldn't say.
Q. You knew them at the time, didn't you? — A. I think I did; yes, sir.
Q. They were l>oth Republicans, were they not? — ^A. I don't know anythhig
about that.
Q. You don't? — ^A. No, sir; I told you
Q. I don't want you to tell me anything except what I ask you?— A. All
right: go ahead.
Q. I want to know whether you didn't know at the time those two men
came there that day and wanted to vote what their names were. — ^A. At the
time?
Q. Yes. sir. — A. Well, I will tell you; I can't remember now whether I did
or not.
Q. You don't remember now whether you knew them or not? — A. No, sir.
Q. Oftn you give us the name of either of them? — A. No, sir.
Q. You can't tell us who they were or how they looked? — ^A. No.
Q. Can't you tell us where either of them lived? — ^A. In town there.
Q. Where?— A. I don't know.
Q. If you don't know who they were, how do you know where they li^e<I In
town — you can't now recollect who they were, how can you tell they lived Id
town? — A. They swore to it.
Q. Is that the only reason you have for saying they lived in town?— A. Well.
yes; that is the only sure reason that T can remember of now.
Q. Ycni don't know, as a matter of fact, whether either one of those Toeo
voted there that day or not? — A. Yes, sir; I do.
J
CABNBY VS. SMITH. 581
2 Slke^ttfsSl'i^and'flrS 'ihelr name* ou tUere. wiU you?-A. No. sir.
q: Why Zl-A. How will I find them? 1 didn't ft the r names down.
O You don't remember either of them?— A. I couldnt tell you.
Q H»ve vou ^ them since that electlonV-A I pr^ume I ^ave
Q. Who were they. If you saw them since election ?-A. How many times
shall I answer that question?
§• ^^etS^^r'^ofX^U vol^a'tXt'^UnV If you were In the., when
they voted— their votes were challenged?— A. Yes, sir.
Q. Who took their votes?— A. The chairman.
Q. Who?— A. Mr. Galloway was chairman.
Q. Galloway took both votes?— A. Yes. sir.
'^Q^YCnrfoT^dT.V'l/^^^^ of tuose two
^Q Vshow'^olf^^^^^^^ of that election down there that day and you
find. don^tTou a blank form where votes that are challenged to be filled out.
%'^^:^L\T\.^n\.V^^^^^ S;^"that that election boa nl had
there thaTda'y to fill oat in case votes were challenged, are there not?-A.
^ a Ifot one of them is filled out, is there?-A. I don't see that they are in
^^Q.^L^ok and see whether this is the ix>ll book you used that day?-A.
Yes, sit.
q! ^oU"^ten^we^^^^^ in, were they-an oath was administered to them
before you allowed them to vote?— A. Yes. sir.
Q There Is no record of it at all?— A. T don t see any. , ^ «„
Q. Did you mark those votes as challenged votes, or were they marked as
challenged votes?- A. I think they were. «* «iio a
Q. Don't you know they were not marked as challenged votes at all?— A.
^^Q.^Ys it not a facT'that neither of them were marked as challenged votes?—
*Q Those are the only two men who came in there that day that were chal-
lenged?—A. Xo. sir; I think not. I think there were one or two after those
came in. ' , ,
Q. Who were they?— A. I couldn't tell you who they are now.
Q. You can't remember that?— A. No, sir. ... *
Q. Your recollection Is not very good on that point?— A. No, sir; it Is not
very good anyway.
Q. I can't refresh it any on that point, can I?— A. No, sir.
Q. Now, do you know Clare Fltzlmmons? — A. Yes, sir.
Q. Did he come in there that day and want to vote?— A. Yes, sir.
Q. Did he vote?— A. No, sir.
Q. Was he a Democrat?— A. I don't know.
Q. Don't you know he was a Democrat?— A. No, sir; 1 don't know how he
was going to vote. ^ ^, *
Q. Don't you know he was a son of the chairman of the Democratic county
committee of Hillsdale Clounty?— A. Not sure; no, I don't know he was a
Democrat.
Q. Do you know that? — A. Yes, sir.
Q. You knew that on the 5th day of November. 1912. when he came in there
to vote, didn't you? You knew that— that he was a son of Mr. Fitzimmons,
who was then chairman of the Democratic committee of this county?— A.
"Yes sir.
Q*. Tlie board didn't allow him to vote, and he wanted to vote, didn't he?—
A. Yes. sir.
Q. Your board did not allow him to vote? — A. I said no.
Q. Mr. Corbett, the postmaster up there, was he more or less during the day
in the room upstairs? — A. I couldn't say that he was any more than anyone
else.
582 CARNEY VS. SMITH.
Q. Did you see liliu up there? — A. I bjiw him up there, I think, once or twice,
Q. What was he doing? — A. He was not doing anything.
Q. Did he vote V— A. I think he did.
Q. You are sure about that, or don't yon know? — A. Well. I think he did.
Q. Do you know? — A. I will not swetir to it. I had all I could do to lead the
ballots there that day.
Q. Did you deliver the ballots to those two men who were challenged?—
A. No, sir.
Q. You are sure about that? — A. Yes. sir.
Q. Isn't It a fact that you did deliver the ballots to both of those men who
were challenged? — A. No, sir.
Q. You swear iwsltlvely that you did not deliver the ballots that were voted
by either of those two men who were challenged that finally cast their ballots
there? — A. Yes, sir.
Q. You say you did not — either of them? — A. I didn't either one of them.
Redirect examination by Mr. Feu.ows:
Q. Did Fitzlmmons offer to take an oath there that he was sick or unable to
be present and register, or anything of that kind? — A. Why, no; no.
Q. You six)ke in answer to Judge Adams's question about the members of tlie
board going out to supper? — A. Yes, sir.
Q. When the other members went out to supper did you and the others who
remained keep looking after the voting? — A. If we closed?
Q. You kept counting the votes while they were gone? — A. I'es; getting
them ready to count.
Q. While you were — when the others came back did you find that they had
gone ahead counting? — A. No, sir; they had not.
Q. You did not start your c*ount until you were all present? — A. No, sir.
Whereui)on the hearing was adjourned until 9 o'clock a. m., Tuesday, April
15. 1013.
Tuesday, Apbil 15, 1913 — ^9 a. m.
JESSE BARBER, being sworn to testify to the truth, the whole truth, and
nothing but the truth, testified on behalf of the contestee, as follows:
Direct examination by Mr. Fellows:
Q. Mr. Barber, where is your home? — A. In Morgan.
Q. That is in what towuship in this county? — A. Wright.
Q. Did you hold any office in the township of Wright, on the 5th day of
November last? — A. Yes, sir.
Q. What? — A. Justice of the jieace.
Q. As such justice of the i>eace did you serve on the board? — A. Yes, sir.
Q. Where was the election held? — ^A. In Platville.
Q. You alternate in that township between Waldron and Platville in holding
the election — first in Platville and then in Waldron? — A. Yes, sir.
Q. One year in one place and the next year in the other? The i)ractice is
to hold one election in Platville and the next in Waldron?— A. That is the way
we do; yes, sir.
Q. Y'^ou sat on the election board in Plat\'ille? — A. Yes, air.
Q. At the noon hour did you have any adjournment? — A. Yes, sir; we did.
Q. For the puriK>se of going to dinner? — A. Yes, sir.
Q. What was done with tlie ballot box? — A. It was sealed up.
Q. W^HS the seal given to one member of the board, the key to another, and
the box to another or was the box left there? — A. The box was left riglit there,
and the gatekeeper stayetl there.
Q. The hall was not locked? — ^A. I don't think It was.
Q. You were the one who took th^ seal? — A. No, sir.
Q. What did you have? — A. I saw just it w^as locked ; that is all.
Q. You didn't have the keys or the senl?— A. No, sir; the clerk had the keys.
Q. Did the clerk have the seril, too?— A. I think Mr. Gleason had the seal-
Q How long was it adjounieti for? — A. One hour; but we didn't stay an hour
before we wore back.
Q. And oomnieucetl taking votes :igain?^A. Yes, sir.
Q. This is quite a large town?— A. Yes, sir.
Q. The iH>lls wore closed at 5 o'clock? — A. About 5 o'clock.
CARNEY VS. SMITH. 583
Q. And the count was commenced V — A. Yes, sir.
Q. Who was this gatelceeper who the Ijox was left with? — A. I can't tell you
Lis name just now ; I don't know him ; I have seen him lots of times.
Q. Some one who lived in som^ other part of the town? — A. No, sir: he lived
right there in Platville.
Q. In the other end of the town from where you lived? — A. Yes. sir; I know
him when I see him.
Q. Now. how do you get to your home from Platville? — A. On the train gen-
erally; sometimes we drive; but it was muddy.
Q. Was there a train going south Wetlnesday morning or forenoon? — A. One
.vent at 12 o'clock and I got home just — or 11.55.
Q. Had all the returns been filled in? — ^A. Yes; all of them; Mr. Gleason
signed them up here about 11 o'clock and said he would be back in time, and
I wanted to go home ; I had a sick horse and I wanted to get home.
Q. What I mean is did you sign some returns in blank, then the figures were
made out after you went away? — A. No, sir. Their figuring was done before
I went away ; I think so. He Fald he would be back In time for me to sign up,
so I could go on that train.
Q. Did you come up here anc^ bring the returns up here that day? — A. No,
sir; I telephoned up here.
Cross-examination by Mr. Adams:
Q. I suppose, Mr. Barber, when you got back to the voting place there on
November 5, 1012, after you had been out to dinner at the noonday meal, you
found everything just as you had left it? — A. Just as we had left it.
Q. The ballot box and everything you had left there? — A. I don't think a
I)er8on had be«i in there, only just the gatekeei)er.
Q. Everything was just exactly as you had left it when you went out to
dinner? — A. It looked just the same; I don't think it had been touched.
Q. It was sealed when you got back just as it was when you went away? —
A. Ye0, sir.
Q. The ballot box was locked? — A. Yes, sir.
Redirect examination by Mr. Fellows:
Q. Did you adjourn at supper? — A. No, sir.
Q. Or breakfast, either? — A. I didn't go to breakfast; I had a headache, and
I don't think Mr. Gleason but Mr. Corse and Mr. Shanplo and the clerk went
to breakfast.
Q. While they were to breakfast you stayed there? — A. Yes, sir, and the
gatekeei)er was there and nobody else; I don't think anybody came there that
morning.
Q. When you went to supper, did you all go together or two at a time? —
A. Supper was fetched In.
Recros»exami nation by Mr. Adams:
Q. You are a Republican, Mr. Barber? — ^A. I am a Republican, but I do not
vote a Republican ticket all the time.
Q. Yoa vote just as you see fit? — A. I registered as a Republican.
Q. You were November 5, 1912? — ^A. Yes, sir.
Q. Everything as far as you know there in connection with the election on
November 5 was fair, square, and honest? — ^A. Just as honest, I think, as
could be.
O. J. GLEASON, recalled for further cross-examination by Mr. Adams, testi-
fied as follows :
Q. Mr. Gletison, when your board went out for your noon recess to get dinner.
I understood you to say that the ballot box was sealed and locked, and that you
*eft the election supplies, ballot box, etc., in the custody and care of one of the
gate keepers? — A. Yes, sir.
Q. W^hen you got back after your noon recess, I sui)pose that everything was
just as you left it when you went away? — A. Yes, sir.
Q. Was the ballot box still sealed as it was when you went to dinner? — A.
Yes, sir.
Q. Did you find that anything had been interfered with or molested? — A. No,
sir; not in any way.
Q. All your election supplies there and the books and ballot box and every-
thing you left there? — ^A. It was all just the same.
584 CARNEY VS. SMITH.
Q. What do you say as to whether the election was fairly, honestly, an^l
squarely conducted from heginning to end on that November 5, 1912? — A, It
was. sir.
Q. Mr. Gleasou, one question or two. Bulton Shaniplo was a member of that
election board that day, was he not? — A. Yes, sir.
Q. Was he one of the Justices of the peace of that township at that time?—
A. Yes, sir.
Q. He had been for some time? — A. Yes, sir.
Q. Do you know who administered the oath to Mr. Stiamplo to act as an in-
spector of election? — A. As 1 remember it, I think I did.
Q. You were one of the inspectors? — A. Yes, sir.
Q. You were sworn la the first one yourself — ^A. Yes. sir.
Q. Afterwards you administered the oath to Mr. 8hamplo after you bad l>eeu
sworn in by him? — ^A. As I remember It.
Q. Now. Mr. Gleasou. Mr. Berber, who has been on the stand this morning, I
understood him to say before he left and went away from that election place
on the morning of the 6th that all the retunis he signed were filled in before
he left and signed before he left. Does that in any way refresh your recollection
in regard to that circumstance? — A. I testified, I think, yesterday, if I remem-
ber, that it was not clear in my mind whether the l)ooks were completed all
excei)t signing. He has told me that was so ; that they were.
Q. Does that refresh your recollection any now? — A. I am Inclined to think
so myself, because we took those returns immediately after that; I remember
that I could not catch the tniin; I was to work and could not catch the train,
and Mr. Barber could by letting him sign : he could catch the train. I think we
did have those returns ready to go.
g. All filled up?— A. Yes, sir.
Q. And signed? — A. Well, we slgnefl immediately after he signed — first let
him sign.
Q. I supiwse that some of you had to stay there to see that they were seiiled
up and rejuly to forward, and that took a little longer? — A. Yes, sir.
Q. Mr. B«rber signed up then; then the rest of you. before Mr. Barber left;
you sealed them and put them in an euvelo[)e so they were sealed and got ready
to forward to the proi)er authorities? — ^A. Yes, sir.
E. n. (JALLOWAY being s^'om to testify to the truth, the whole truth, and
nothing but the truth, testlfietl on l>ehalf of the contestee. as follows;
Direct examination by Mr. Fellows:
Q. Mr. Galloway, your home is where? — A, In Reading.
Q. In the village? — A. No, sir; In the country.
Q. How far do you live from the village? — A. Pour miles.
Q. The village of Beading is in the township of Reading? — A. Yes, sir.
Q. That is where you held your election? — ^A. Yes, sir.
Q. Whereabouts In the village did you hold the election? — A. In the vUlaije
ball.
Q. Were you supervisor of the township on the 5th of Novemlier last?— A.
Yes, sir.
Q. As such supervisor did you sit on the board of election? — A. Yes, sir.
Q. Are you able to state from memory who the other members of the board
were? — A. The senior justice and the next Justice of the i»eace and the town-
ship clerk and sui)ervl8or.
Q. Who was the other clerk? — A. The deputy clerk was Mr. Hosklus.
Q. That election w«s oi>ened In the morning? — A. Yes, sir.
Q. Is the vote of thiit township reasonably large? — A. Yes, sir; usually when
the whole vote is out, I think it has been as high as 640.
Q. At this election November 5. 1012, the vote was somewhat larger than
usual? — A. Yes, sir.
Q. You had provided i\ ballot box for the imllots for the candidates and a^^o
for the constitutional amendments? — A. The township has four ballot boxes.
Three of them were In a condition to be used and the fourth one I think the
lock was broken and was not used.
Q. You had two constitutional nniendments besides the regular ticlset for the
candidates? — A. I think so; yes, sir.
Q. Now, during the day did the ballot box which you were using to cost the
ballots for the cnndldntes become full?— A. About 11 o'clock I called the atten-
tion of the board that we would not be able to put all the ballots In that box.
GABNEY VS. SMITH. 585
ODd they tlionglit we had better take some means to procure some other box,
'so I culled the village niarshal, he stood outside of the railing, and had him
procure a box with a slot cut in to admit the ballots, and he did so.
Q. What was it? — A. It was a little shoe box I think, probably 30 inches
long. 18 inches deep, and 14 inches wide.
Q. He brought it to you with the slot cut In? — ^A. Yes, sir.
Q. Was it securely nailed on when* he brought It? — A. Yes, sir.
Q. What was done with it after he brought it? — A. It was placed under the
table until necessity compelled us to use it, which I think probably might liave
been somewhere about 1 o'clock.
Q. Then what was done? — ^A. Then we took the other box and puslied it tn
one side and used this box to deposit ballots in.
Q. Was there any lock on it?— A. No, sir.
Q. Now, after the polls had closed at 5 o'clock how did you get the shoe
box open? — A. There w^as a hatchet there and we took the hatchet and pried
the top off.
Q. Then proceeded with the canvass? — A. Yes, sir.
Q. I think it has been testified here that you had a noon adjournment? — A.
No, sir; not from the time we began at 7 o'clock until the next morning when
we fini^ed counting.
Q. You didn't have an adjonniment there for any meals? — A. No. sir; dinner
nor supper.
Q. How did you arrange that? — A. We went out part of the board at a time.
I think in the evening the board went down, with the exception of the gate-
keeper.
Q. What was done with the ballot boxes? — A. They were left there.
Q. What time did you go to supper? — ^A. Immediately after closing the polls.
Q. Before you opened the ballot box at all? — A. Yes, sir.
Q. Then at breakfast time, did you divide up and go or leave at once? — A. I
don't think we had any breakfast.
Q. Where* was the election held as to whether on the ground floor or not? —
A. It was on the second floor.
Q. In what place? — ^A. In the village hall, in the council room.
Q. During the day was there an application for the right to vote on behalf of
certain men who claimed they could not get up in the polling place? — ^A. Yes, sir.
Q. How were they permitted to vote, if they were permitted to vote? — A. The
request wns made by a man who stood outside of the railing, and the question
was put to the board whether they would allow them to vote, and the board
consented. The question was put to the two challengers, and they consented. '
Then I told the senior justice and the next justice of the peace, who would be
deputy clerk, and the challengers to go down on the street and take the ballots.
Q. What place on the board were you filling at that time? — ^A. I was chair-
man.
Q. And as such received the ballots and put them in the ballot box? — A.
Yes, sir.
Q. When these men went down, did they return with the ballots? — A. Yes, sir.
Q. What was done with them? — A. They were deposited in the ballot box.
Q. How many in number were they? — ^A. Well, I think there were 3^^3 votes.
Q. You don't remember whether they voted on the constitutional amendments
or not, do j-on? — ^A. No, sir.
Q. But there were 3 votes? — A. Yes, sir.
Q. All those 3 ballots which you speak of were votes for the various candt-
dates? — ^A. Yes, sir.
Q. But whether thej' voted the constitutional amendments or not you don't
remember? — A. I couldn't sr-y.
Q. Were there any other voters challenged there that morning that had to
be sworn in or that were sworn in? — A. I don't think they were challenged;
there was a question raised there in the morning over the matter of registra-
tion ; some of them registered in the village and supposed they were registered
in the township; I think there were two that the oath was administered to
them in regard to their qualifications as electors at that polling place, and they
wei-e allowed to vote and registered at that time.
Q. They were men who lived in the village? — A. Yes, sir.
Q. And the village is in the township? — ^A. Yes, sir.
Cross-examination by Mr. Adams:
Q. Do you remember, Mr. Galloway, who administered the oaths to those
voters as to their qualification? — A. They were administered by myself.
586 CABNEY VS. SMITH.
Q. To whom were the o^iths administered; do you remember the names of
the men? — A. That would be a hard matter to tell.
Q. Thost* two voters were not challenged? — A. Well, no, sir; I don't think
they w^ere. unless you might call that method a challenge.
Q. You didn't mark their ballots as challenged votes? — A. Xo» sir.
Q. There was some question raised. I take it. as to their qualification and
then you administered an oath to determine whether they w-ere entitleil to be
registered at that time? — A. Yes, sir.
Q. And you allowed them to register at that time? — A, Yes, sir.
Q. And then vote? — A. Yes, sir.
Q. Yon had the registration l)ook there, of course? — A. Yes, sir.
Q. Can you tell me who the other one of those men were who were allowed
to register and then vote that day? — A, I couldn't place it without the register;
1 presume the register will show.
Q. You can't now rcail their names? — ^A. No, sir.
Q. There was a gentleman by the name of Fitzlmmons there that day?—
A. Yes, sir.
Q. Did he vote?— A. No, sir.
Q. He was a Democrat? — ^A, I couldn't say. I lu'esume he may have iMjeii.
Q. You understood at the time of that election, on that election day. that
Mr. Fitzlmmons was a Democrat? — A. No, sir; I took it from the general idea
that the Fitzimmonses were Democrats that probably he was.
Q. What was his given name? — ^A. Clare.
Q. He was a son of Mr. Fitzlmmons, who at that very time was chairman
of the Democratic county committee of Hillsdale Coimty? — A. I presume 8o;
yes, sir.
Q. He came there and offered to vote, did he; wanted to vote and asked for
a ballot? — A. I don't know whether he came inside; I don't remember whether
he came through the gate. I guess he did, though.
Q. Well, now. he asked for a ballot? — A. Yes, sir.
Q. No ballot was given him? — A. He was not allowed to vote.* He didn't
vote.
Q. Did Claude Rice vote there that day?— A. Yes, sir.
Q. You knew him at that time? — ^A. Yes, air
Q. He was a Kepublican? — ^A. I couldn't say.
Q. Hadn't he l)een a Republican before that day? — ^A. I don't know; I
couldn't say. He was a new voter there, this young man, that Just came Into
his franchise probably two or three years ago ; I didn't know what his politics
were.
Q. Did John Kettle vote there that day?— A. I think he did, but I will not
say.
Q. Had you known him before that day? — ^A. Why, no; he was a stranger,
practically, in town ; a real estate man that has been there probably t^'O or
three years.
Q. Y'ou understood he was a Republican? — A. I don't know what his politics
were.
Q. Do you know a man named Stroup, a miller? — A. I don't know such a
man.
Q. Did he vote there that day? — A. I couldn't tell you.
Q. J. H. Stroup? — A. He Is a stranger to me; the name is. I don't know him.
Q. He was a brother-in-law of the man Hawks spoken of? — A. Possibly.
1 don't know him ; I don't know- that he voted there.
Q. Jay Campbell was a member of that board? — A. Yes, sir; he was the
>enlor justice.
Q. He was a justice of the peace? — ^A. Yes, Blr.
Q. You were sworn In as an inspector by Jay Campbell? — A, I think so;
yes, sir.
Q. Then you swore In Jay Cami)bell after you had been sworn in by him,
and at the time he swore you In he was a Justice of the peace? — ^A. He was;
yes, sir.
Q. Of that township?— A. Ye\ sir.
Q. And had been for a year or more? — A. For a number of years.
Q. Now, do you recollect — you say you don't recollect — or do you recollect
whether J. H. St roup was challenged there or an objection was made to blm
voting that day? — A. I don't recollect the name at all.
Q. Now, who made the objection to Claude Rice voting? — A. I couldn't sjiy
Q. Was there a Democratic challenger there? — ^A. Yes, sir.
CABNEY VS. SMITH. 58T
Q. Did he object to Rice voting?— A. I couldn't say.
Q. Do you know who made any objection to John Kettle voting that dajr
there? — A. No, sir; I didn't know that he was objected to.
Q. Claude Rice was permitted to vote and did vote? — A. I think he was:
yes, sir.
Q. John Kettle voted there that day? — A. I couldn't say; I presume so; I
don't know.
Q. Who made the objection to Mr. Fitzlmmons voting?— A. Well, I don't
know as I can tell you ; I guess it was a general objection by the board, but 1
don't know.
Q. I show you the poll book of the township of Reading, Mr. Galloway, and
ask you whether it does not appear by that book that is shown you that Johik
Kettle vote<i the seventy-eighth man there that day? — ^A. Yes, sir.
Q. That is correct?— A. Yes. sir.
Q. His name is there as the seventy-eighth voter on that poll book? — A. Yes, sir^
Q. Do you remember whether Claude Rice voted early In the day or late in
the day? — ^A. Well, I presume it was about near the middle of the day, but I
don't remember.
^ I call your attention again to the poll book of Reading Township of the-
general flection held November 5 and to the name opnoslte ballot No. 440, you
flnci the name of Claude Rice there, don't you? — ^A. Tee, Sir.
Q. There were 491 ballots handed ou*^ there that day? — ^A. Yes, sir.
Q. For the candidates for the various offices, I mean the ballots that con-
tained all the candidates of the various offices, 491 ballots were passed out
by your board that day? — ^A. Yes, sir.
Q. And Claude Rice appears on this poll book as having had ballot No. 440? —
A. Yes, sir.
Q. And voted? — ^A. Yes, sir.
Q. There that day?— A. Yes, sir.
Q. Who was the Democratic challenger there that day? — A. Friend Potter^
was requested by the township chairman — the Democratic township chairman —
to act as challenger, and he acted in the forenoon until somewhere about noon,
and he said he wanted Mr. Holdridge to act in his place during the afternoon.
Q. Did he so act during the afternoon?— A. Yes, sir.
Q. Then. Mr. Holdridge acted In the afternoon in his place?— A. Yes, sir.
Q I understood you to say that you were the chairman of that election
board that day? — A. Yea, sir.
Q. You used a box for the purpose of depositing the ballots in. after youi^
reinilar ballot box got full? — A. Yes, sir.
Q. The ballots that were used at that election were unusually large in size
were they not? — A. Yes, sir.
Q. And you had a very large vote there that day — 491?— A. Four hundred and
elfrhty or four hundred and ninety ballots.
Q. Four hundred and ninety-one?— A. Yes, sir.
Q. As shown by your poll book that is correct, is it not?— A. T think it isr
yes, sir.
Q. Those ballots, about how large were they? What would you say was
about the size of them?— A. Oh, they were possibly something like a yard^
square.
Q. In order to get them in the ballot box they had to be folded so that they
were several thicknesses? — A. Yes, sir.
Q. And thnt made the ballot very bulky?— A. Yes, sir.
Q, You determined along in the forenoon, election day. that that ballot box
would not have capacity sufficient to hold all the ballots that were likely to be^
cast there that day and deposited in that ballot box. didn't you?— A. Yes, sir.
Q. And you made pi*ovl.sion, therefore, to have prepared a ballot box?— A,
Yes sir.
Q. To accommodate all the ballots that would probably be voted there at that
flection? — A. Yes, sir.
Q. Is that correct? — A. Yes. sir.
Q. And you obtained and got a snl>stantial box with a slot cut In about the^
Ranie size, I supi)ose, as the slot you had In your regular ballot box?— A. Suffi-
cient to admit the ballots.
Q. No larger than just sufflciout to do that?— A. No, sir; as near as could be.
Q. The lid was securely fa.«?tened and nailed to the box, was it not?— A. It
was extra well nailed. It seems to mo It was nailed better than in the natural
condition It would be.
588 CARNEY VS. SMITH.
Q. It wns a good stronj? box? — A. Yes, sir.
Q. You took especial pains to see that it was a secure box, didn't you," as
chnirman of thai board? — A. I did.
Q. And you were satisfied that it was such a box? — A. Yes. sir.
Q. Before you put any l)al]uts in it? — A. Yes, sir.
Q. Well, you said you took a hatchet to get the lid off. You luean you split
the lid. It was so securely nailed that you split the lid when talking off? — A. It
was not fit to go back on.
Q. It was so securely nailed that in getthig that lid off you broke the lid?—
A. Yes, sir.
Q. When you got through counting, your board, you took all those ballots
and put them In the regular ballot box? — A. Yes, sir.
Q. So when you got all through and your election board had completed its
Tiuties as a board, you took all the ballots that were cast there at that election
that had been vote<l and put them Into the regular ballot box that your town-
ship hpd provided? — A. Yes. sir.
Q. Then you locked that ballot box aiul sealed it up as the law requires,
didn't you, with all the ballots in it? — A. Yes, sir. Not all the ballots; I mean
Just the
Q. I mean all the ballots. When you sealed up that ballot l)ox and locked it
you had in it all the liallots that had been voted for the various candidates for
office?— A. Yes. sir.
Q. On the ticket at that general electitm of November 5, 1912?— A. 1 think
that Is true; yes, sir.
Q. You stated that some one that day made application to your l)oard to have
the votes of a couple of men who were invalids, I take it, received downstairs
and brought up and deix)sited in the ballot l)ox. Now, Mr. Oorbett was the man
who made the application to your board to have that done? — A. Why, Mr. Cor-
bett was there, and Mr. Kellogg was there, and 15 or 20 other voters sjit on the
< ntside of the railing.
Q. But Mr. Corbett asked you to do that?— A. Well, I will tell you
Q. Didn't he? — A. Mr. Corbett said he had been request eil to ask the board
by Mr. Rising, and Mr. Rising was a man nearly 80
Q. Never mind that now.
Mr. Fkllows. He is testifying to what Mr. Corbett said, and that Is what you
asked him.
Mr. Adams. I asked a question which did not call for the conversation,
whether Mr. Corl)ott did not make the request to that election board that these
men be i)ermitted to deliver their balh-ts. or that in substance, to some member
of the board who would go down on the street and receive those ballota
Q. Did not Mr. Corbett make that reciuest to your board first? — A. Why. I
think Mr. Corbett said he had been asked to make the request.
Q. He was the first man who stated that to your board? What is Mr. Cor-
"hett's given name? — A. E. 0.
Q. He is the postmaster there, or was then, at Reading? — A. Yes, sir.
Q. Now. then, after Mr. Cor!)ett made that request to your board of election
there that day you determined tliat that might be done: then you delegated Mr.
Campbell to go down? — A. I did.
Q. You delegated Mr. Campbell, one of the Insiiectors of th-it election, to go
■downstairs and receive the votes of two men? — A. Mr. Campl)e]l and the tvo
challengers. Mr. Holdridge — and Mr. Gardnnm was for the Progressives and
Mr. Holdridge for the Democrats.
Q. Mr. Campbell was a Republican insi)ector for that board? — A. Yes. sir.
Q. He went down? — A. Yes, sir.
Q. Who was another one? — A. Mr. Northrup.
Q. What i)ositlon did he hold on the board? — A. Senior justice.
Q. He was one of the Insjiectors on th!it board? — A. Yes, sir.
Q. Who else went down, what members of the board? — A. The deputy clerk
Avent down.
Q. Wbat is his name? — A. Hawkins.
Q. He went down — he was one of the clerks at that election? — ^A. Yes, sir.
Q. And, In addition to those three men, the two challengers? — A. Yes, sir.
Q. The challenger of the Democratic Party? — A. Yes, sir.
Q. Who was Mr. Holdridge? — A. Yes, sir.
Q. The other challenger was who?— A. Charles Gardman.
t^. What party did he rei^resent? — A. The Progressives.
CABNBY VS. SMITH. 589
Q. Those five lueu went, down? — A. Yes, sir.
Q. Those two men who were proposed by Mr. Corbett that you have the mem-
bers of your board go down and take their votes downstairs — what were their
names?— A. A. J. Rising and S. H. Hill, I think. I don't know that I have the
initials for sure.
Q. So you delegated those members of your board to go down and get those
ballots of those two men? — A. Yes. sir.
Q. Mr. Rising was a Republican at that time, as you understood? — A. No, sir;
I presume not. I don't know what his i)olitlcs were.
Q. You supposed he was a Republican? — A. No. sir; he had for years passed
as a Prohibitionist.
Q. While he had been a Prohibitionist in his proclivities, he was registered
as a Republican In that township, wasn't he — enrolled as a Republican? — A.
No, sir; I don't think he was.
Q. Now, this man Hill and this otber man that Mr. Corbett proposed there
that you should send some members of your board down to get their votes, he
was knowTi by you at that time, I suppose, as a Republican? — A. Yes, sir; I
suppose he was a Republican, although he leaned, as you say, the other way at
that time.
Q. A little "Bull Moosey"?— A. No, sir; a little Democratic.
Q. Now, about what time in the dJiy did those two gentlemen, Mr. Rising and
Mr. Hill, vote: about what time in the day? — ^A. I don't know; I presume in the
afternoon; I think so.
Q. They were both received at the same time? — A. Yes, sir.
Q. Well, Mr. Rising and Mr. Hill both voted and their votes were deposited in
the ballot box that day? — ^A. Yes. sir
Q. Your election board of inspectors, yourself and A. J. Northrup and Jay
Campbell were all Republicans? — A. Yes, sir.
0. This Mr. Rising, did you know him that day? — ^A. I didn't see him.
Q. Had you been acquainted with him before thnt? — A. I would have known
him If I had seen him. I have known him ever since I have been old enough to
recognize any one.
Q. An old man was he? — A. He was probably not far from 80.
Q. Feeble at that time?— A. Yes, plr.
Q. Had he been before that? — A. Yes, sir; he had been for a number of years
a cripple, and goes in a wheeled chair.
Q. He had been a cripple and had been pushed around In a wheel chair when
you had seen him? — A. Yes, sir: whenever I have seen him for the last three
or four years he was in a wheel chair.
Q. Mr. Hill, what was his physical condition prior to November 5, 1912? — A.
Bad.
Q. What had you observed abont him? — A. Well, he was for the last five or
six years confined to crutches, and for the last year I don't know as be was
even able to get around with crutches; I could not say positively, but I think so*
Q. How old a man is he? — A. He is a young man, probably 35.
Q. You haven't seen him In five years except he has been on crutches? — A»
No, sir; the last six or eight years.
Redirect examination by Mr. Fellows :
Q. What was there about the young man, Fitzimmons? — ^A. Fltzlmmons he
was away to Chicago and the board thought he had lost his residence.
Q. He was not reregistered when he came back? — A. No, sir.
Recross-examination by Mr. Adams:
Q. This Fltzlmmons claimed there that day that he was only temporarily
away, didn't he? — A. That was the question raised ; I think that was the ques-
tion raised.
Q. In some way >our registration board hvd ^scratched his name off the regis-
rratioa list, hadn't it? — A. I presume that Is true; I don't remember juFt what
his change was.
Q. Don't you remember now that the board had crossed FItzimmona's n-Mue
off from the registration list, and that question was raised that very day there
by Fltzlmmons before your election board? — A. His name was crossed off.
Q. When he came In there to vote th"t election day he claimp,d to your bonrd
that you didn't have any right to scratch his name from the registration list? —
A. I think he did.
590 CARNEY VS. SMITH.
Q. He Insisted on his right to vote there at that election, didn't he? — ^A. Yes,
sir; he made a request to vote; I think, if I remember right, he claimed that he
bad not lost his residence.
Q. He claimed to the board that he had only been teniiwi-arily absent from
that town? — A. I think that was his claim; yes, sir.
Q. Now, Clande Rice; there was some question raised about his voting there,
was there not? — A. Yes, sir.
Q He was a Republican? — A. Well. I couldn't stiy as to that.
Q. You knew that he had been voting the Republican ticket? — A. He hadn't
l)een voting but a very few years; just became a voter, probably 22 or 23 years
t)ld.
Q. You understood before Claude Rice voted on that day that he was a Re-
publican in politics? — A. No, sir; I did not understand it in that way; in fact,
I never made any particular inquiry at the time of the election.
Q. I don't supi)OPe you did right there that day. but before that 5th day of
November, 1912, you understood, I sui)i)ose. thjit Claude lilce wns a Republican
in politics? — A. From the fact that his father was before, I judged probably he
w^as.
Q. In other words, the boys usually follow their fathers, is that the idea?
Well. now. (Claude Rice voted there? — A. Yes, sir.
Q. You knew where he lived, didn't you? — A. Y'es, sir.
Q. He lived outside of the town.ship at that very time? — ^A. His household
goods
Q. He was living outside of the township at that very time of the November
5, 1012. election, was he not. with his family? — A. I think he was staying with
his father-in-law.
Q. He was working there, was he not, at his father-in-law's? — A. No, sir; I
didn't so understand it.
Q. He is living with his father-in-law on the outside of the town now?— A.
Well, now, since that time, there has been some change in the property, I
understand.
Q. Please answer my question. On November 5, 1912, Claude Rice was not
living in Reading Township, was he — that Is, he and his family were outside
of the township living with his father-in-law outside of the town? — ^A. He
•claimed he stayed Saturdays In Rending vlllnge.
Mr. Adams. I move to strike that out as not responsive.
Q. You knew on November 5. 1912, when you acted on that election board
in Reading Township, that Claude Rice and his family were outside of Reading
Township, didn't you? — A. Yes; I understood he was with his father-In- law.
Q. And his father-in-law was living outside of Reading Township at that
time? — A. Yes. sir; In Cambria Township.
Q. Claude Rice has not moved back Into Rending Township since November
5, 1912? — A. I can't say whether he had moved out.
Q. The question I am jisklng you Is whether It is not a fact that Claude Rice
and his wife and family, whatever It may be, has not moved back into Readhig
Township since November 5, 1912? — A. Well, I don't think they have; no.
Q. Now, you allowed Claude Rice to vote? — A. Yes, sir.
Q. Notwithstanding he had been outside of that township and was outside
of thnt township on November 5, 1912, you still allowed him to vote there at
that election^ —
A. Well
Mr. Adams. Walt a minute.
Mr. Fkllows. If the answer doesn't suit you, you can move to strike it ont,
but the witness has a right to answer the question.
(Last question read.)
Q. That can be answered yes or no. — A. Yes, sir; but I can't make an ex-
planation.
Q. They will allow you to make any explanation you wish; I want an answer
to the question and they can call for your explanation afterwards.
Mr. .Fellows. The purpose Is to get a misleading answer without an expla-
nation.
Mr. Adams. If misleading, he can be given an opportunity to get away with
the misleading part of it.
The WiTNKSS. Yes. sir.
Q. Now, Claude Rice's name, your board had also removed from the regis-
tration list? — A. Well, I don't know; was he the one that was sworn in in the
morning?
CARNEY VS. SMITH. 591
Q. I don't know; I don't know about those things ; I am trying to find out.
But is it not a fact that you had. or the board of registration bad, taken Olande
Klce's name off the registration list before the November 5. 1912. election? — A.
No, sir; I don't think they had taken it off.
Q. Do you know; are you sure? — A. I think they had talked about removing
his name, but I don't think it was removed.
Q. You don't think it had been removed? — A. No, sir.
Q. But whether it had been removed as a matter of fact or whether It
had not been removed from the registration list or book, notwithstanding the
fact that objection was made to Claude Rice voting, he still voted there that
day, didn't he, and his vote was received? — A. Yes, sir.
Q. And put in the ballot box with the other votes? — ^A. Yes, sir.
Q. Do you know about what time in the day he voted? He voted No. 440,
didn't he? — ^A. Yes, sir.
Redirect examination by Mr. Fellows :
Q. What was there about this man RlceV — A. Well, he had been going back
and forward to his father-in-law's home to his own home in the village of
Reading and claimed his residence in Reading, and that he came there and
stayed over Sunday.
Q. He still had his household goods there — A. Y'es, sir.
Q. How long had Fitzimmons been away? — A. I don't know; quite a long
time; the idea I got and the public got was that
Mr. Adams. I object to the witness stating the idea the public had or the idea
he had as a conclusion, and as hearsay, incompetent, irrelevant, and immaterial;
he can state what he knows, but his ideas and conclusions are certainly im-
proper.
Q. Go ahead. — A. I don't know anything about what Fitzimmons
Q. Now, what did tlie board act on?- -A. They acted on this idea that he had
lost hia residence and gone to Chicago and gone in business there and the
majority of people there thought that he had a Job in Chicago and had removed
there.
Mr. Adams. I move to stiike out what the idea of the people was and a con-
clusion of the witness as hearsay and incompetent.
Q. He had been running the telephone office there before he left? — ^A. He
had been manager there.
Q. And he moved away? — A. Yes, sir.
Q. And went to Chicago?— A. Yes, sir.
Recross-exaniinatfon by Mr. Adams:
Q. You say this man Rice had been going backwards and forwards; what
was he doing out there to his father-in-law's Just before election? — A. Farming;
that was his occupation.
Q. His wife was out there? — ^A. Yes, sir.
Q. How long had he gone out there prior to November 5, 1912? — A. He had
been there ever since spring — back and forth.
Q. W^orking on the farm? — A. Yes, sir.
Q. How long had his wife been out there? — A. I think they both went at the
same time.
Q. He went out there in the spring, did he? — ^A. He went out there in the
spring prior to the 5th of November.
Redirect examination by Mr. Fellows :
Q. They still occupied a house in Reading ?--A. Yes, sir; they stayed in the
house part of the time.
Mr. Adams. Mr. Rice came back to Reading every Sunday?
A. Yes, sir.
Q. But the balance of the week they were on the farm? — A. I asked
him
Mr. Adams. That is not competent what he might have said.
Mr. Ffxlows. I think it is, the question of the intent of the voter controls.
Mr. Adams. I object to it as hearsay and Incompetent
Q. Was he working there six days of the week and his wife was out there
on the farm with his father, and he was working the farm prior to November
5? — A. Ye8» sir; a large part of the working days.
Q. You say since November 5 they have moved their stuff out? — ^A. I don*t
know that they have.
692 CARNEY VS. SMITH.
Q. You tloii't know whether he has moved out there, then, of your own knowl-
edge or did before November 5? — A. From what he told me November 5 I should
judii^e he had not
Mr. Adams. I move to strike out what he told him.
Q. Y"ou don't know of your own knowledge whether Claude Rice had re-
moved his household effects? — A. No, sir.
Q. Out of Reading Township before November 5. 1912? — A. No, sir,
Q. Tou knew that Mr. Fitzimmons hnd not diS|)osed of his interest in that
telephone business there on November 5, 1912, thnt it was yet in his posses-
Biou? — A. Well, now. I don*t know that has been disposed of; I can*t tell yon
whnt date the transfer was made.
Q. Do you say it has been disposed of; that Fitzimmons disposed of his
interest in the telephone business in Reading Township? — A. No; let us Ree;
I would have to go back and find out before I could answer the question: it
was comiK)sed of Mr. Fitzimmons and Mr. Doty and Mr. Kellogg and Mr.
Mallory. I think the matter is now held completely bj' Mr. Fitzimmons; I don't
know exactly whnt the conditions are.
Q. You understood November 5, 1912. that Fitzimmons had had an interest
In the telephone business in the township of Rending? — ^.\. I think he held
stock there.
Q. You understood on November 5, 1912, that Fitzimmons then had an interest
in the telephone business that was t>eing operated In the township of Reading,
didn't you? — A. I don't know as I did: I don't know what condition the com-
pany was in; I knew there was a readjustment talked of.
Q. Don't you know that on that very day, the 5th day of November, 1912,
that Olare Fitzimmons owned a controlling interest in that telephone business
in the town of Reading?
Mr. Maynard. I object to that as lncomi)etent and Immaterial.
Q. In the village of Reading, of your own knowledge, don't you know that
to i)e true? — A. On the 5th day of November?
Q. Y'es, sir; before he came up there and asked to vote at that electicm.— A.
Well, I don't know ; possibly.
Q. Will you swear that you don*t know of your own knowledge when Clare
Fltzimmous came up there and offered to vote at that election; that you did
not know then and there that he, Fitzimmons. was the owner of the con-
trolling interest in thnt telephone business In the town of Reading, village of
Reading?
Mr. Fellows. I object to the question of ownership; that would not give a
man a right to vote there; the question is where his residence waa
A. Well, I don't know much about their business ; I will not swear to it who
was the owner of that company.
Q. Did you know on November 5, 1912, that is what I asked you, or didn't you
know? — A. I know just as much to-day about it as I did then.
Q. Did you know or not of your own knowledge, the question calls for your
knowledge. th^U he owned a controlling interest In the telephone business In the
village of Reading on that very day when he came there to vote? — A. I would
have to base my knowledge u(K>n somebody else's statement.
Q. Then, you don't know of your own knowledge, is that the idea? — ^A. I don't
see how I could. I never saw the transfers.
Q. Were you not a stockholder in that company? — A. I expect so.
Q. Were you not present at the stockholders' meeting in July, 1912, when
that telephone company held its annual meeting? — A. I think I was there.
Q. At that very meeting is it not a fact that Clare Fltximmons had a majority
of the stock and voted it right at that meeting you were present at?— A. l
think he did.
Redirect examination by Mr. Fellows :
Q. What was It Rice said about his residence?
Mr. Adams. I would like to ask a question first.
Q. Did he tell you anything about that on election day there while the bonrd
was in session or was it at some other time? — A. I think before that time: I
think I asked him on election day why — the question was asked him why be
should not be removed from the registration.
Mr. Ada^is. I object to the question on the ground that it Is hearsay and
something that was not said by them on election day while acting as insi)ector
of the election and as hearsay and irrelevant. Incompetent, and immaterial.
CABNEY VS. SMITH. 593
Q. State all the talk you had with Hlce.— A. Mr. Clark told Die that Rice had
not lost hifi reeldence; that he claimed a residence in the village. He said, " I
live with my father-in-law ; but I own a home and my home is here, and my
household goods are here, and my stuff is here, and I do my cooking and stay
there."
Q. Was his vote challenged? — A. No, sir; I don't think it was*
Q. Did Fitzimmons offer to take an oath that he was a resident of Read-
ing?— ^A. No, sir; I doii*t remember. There was something said there at the
time in the room, possibly, but I don't reinemi)er of any oath.
Q. Of any oath being taken by him? — ^A. No, sir.
Q. You stated that since election there had been some change in property
matters as far as Rice was concerned? — ^A. I think there is.
Q. He moved his goods out there? — ^A. I don't know whether they have been
moved out or not
Q. You d<Hi't live in the village? — A. No, sir. The property which he occu-
pied in the village belonged to his father-in-law, I Uiink ; possibly it might have
been given to the daughter; I think his father-in-law held the title.
Recross-exH mi nation by Mr. Adams :
Q. The only information you got about Claude Rice you Just testified to to
counsel upon the other side that you got through the county clerk? — ^A. The
township clerk.
Q. Yon got that information you have just given in answer to the question
of Mr. Fellows, from your township clerk, Indirectly from Mr. Rice? — A.
Yes, sir.
Mr. Adams. I move to strike that out as collateral and hearsay under the
admission of the witness that the information he got from the township clo'k
was what Mr. Rice stated, on the ground that it is hearsay, irrelevant, and
immaterial.
Redirect examination by Mr. Fellows :
Q. This information that came from him to the clerk came to you while sit-
ting on the board of election, and came to you in your official capacity? — A.
Yes, sir.
Recross-examinatiou by Mr. Adams:
Q. Mr. Fltzimmons's vote was not challenged, was it? — ^A. I don't remember
just what brought that about.
Q. I say Mr. Fltzimmons's vote was not challenged? — A. Will you explain
the method of challenging, challenged by the party
Q. Was he challenged by any member of the board or any challenger of any
party or anybody standing around there or anybody sitting or by any busy
idler about his right to vote? — A. No, sir; I don't think so.
Q. Just some talk about his right to vote, but no challenge made to the vote
of Clare Fitzimnions that day? — A. No, sir; not that I remember of.
Q. You just declined to give him a ballot to vote there — the board declined
to give him a ticket to vote? — A. Yes, sir.
Q. That is all there was to it? — ^A. Yes, sir.
Redirect examination by Mr. Fellows:
Q, As a matter of fact, you did not think it was your duty to give any man
a ballot and permit him to vote if he is not registered whether he is challenged
or not?
Mr. Adams. I object to that as incompetent, irrelevant, and immaterial; the
question is, what they did that day.
RecrosB-examination by Mr. Adamb:
Q. Was there a man voted there by the name of Kettle? — A. I presume he
did; he lives in the village.
Q. Was his name on the registration list? — ^A. I couldn't say; it seems to me
as though he registered that day.
Q. As a matter of fact, his name had not preceded that registration? — ^A. I
' think he was registered that dny.
Q. He had not been registered in that township prior to that November 5,
1912, election?— A. I don't know.
Q. Can you say whether his name was on the registration list? — A. No, sir;
I can't.
286—13 38
594 CARNEY VS. SMITH.
•
Q. lu that township? — ^A. No, sir.
Q. Whether in fact he had been registered In that township prior to No-
veml>er 5, 1912, election? — A. I didn't say so; if he Toted that day he was sarely
on the registration.
Q. You put his name on the registration book that very day, didn't you?—
A. I presume so.
Q. He was not on the registration book when you opened those iwlls >V
vember 5, 1912; isn't that true? — A. I don't recollect '
Q. Do you know about that? — A. There is one thing sure, if he voted there
we are certain th^t he had registered prior to the election day.
Q. What was his given name? — A. John Kettle.
Q. John Kettle voted there ; I show you the poll book for the township of that
election ; John Kettle voted ballot No. 78. didn't he? — ^A. Yes, sir.
Q. This Is John Kettle we are talking about. — A. That Is the oniy one I
know of.
Q. Now, I ask you whether it Is not a fact tliat that Mr. John Kettle was
not reglster«Mi at the time that election board convened Noveml)er 5, 1912? — A.
He might have been registered that day.
Q. That is hardly an answer to my question; the question Is whether it Ik
not a fact that John Kettle, who voted ballot No. 78 at that general election
November 5, 1912, was not on the registration books of the township of Reading
when that election board organized that day? — ^A. If he was registered that day
he was not.
Q. Is that the best answer yon can make to it? — ^A. I am not positiTe
whether he was registered that day; I would answer yes or no if I was.
Q. If you are not positive about it, that is the best answer you can make?
(No answer.)
Q. This same John Kettle, who was registered there on that election day by
your election board, he made no claim to your board that day that he was out-
side of the township when Uie registration was had In that township, and made
no claim to your board that there was any reason why he could not have
registered regl strut ion day, and yet you permitted him to register and vote
on November 5, 1912. didn't you? — A. He must have made some claim.
Mr. Maynard. We will consent that this precinct may be thrown out.
Mr. Adams. You are very liberal in your consents.
CLARENCE TiAMPlIERE, being sworn to testify to the truth, the wbole
truth, and nothing but the truth, testified on behalf of the contestee, as follows:
Direct examination by Mr. Fellows :
Q. Where is your home? — ^A. Woodbridge.
Q. Do you hold any official i)ositlon in that township? — A. I do not at the
present time.
Q. Did you on the 5th day of November? — A. Yes, sir.
Q. What position did you hold at that time? — ^A. Supervisor.
Q. Did you alt on the election in that township on that day? — A. Yes, sir.
Q. Who else constituted the board that day?— A. William Mills, Henry
Ewing, and Mr. Gavitt, and Mr. Foster.
Q. Did you take an adjournment at noon? — ^A. Yes, sir.
Q. For how long a time? — A. One hour.
Q. Wan the iwillot sealetl when the adjournment was made? — ^A. No. sir.
Q. It was locked. I supix)se? — A. Yes, sir.
Q. Who had the key?— A. I think I did.
Q. How many, if any, of the board remained at the polling place during the
noon hour? — A. Three of them — myself and the gatekeepers.
Q. Where did the others go? — ^A. We went to one of the neighbors to dinner.
Q. After the noon hour tlie voting there was resumed? — ^A. Yes, sir.
Q. In the same box? — A. Yes, sir.
Q. Did you take a recess at night? — ^A. No, sir.
Q. What time did you finish up? — A. Nine o'clock the next day.
Q. Did you stop for breakfast? — A. We had our lunch brought to us.
Q. That Is true of your supper? — ^A. Yes, sir.
Q. Those that did remain had their lunch with them? — ^A. Yes, sir.
Cross-examination by Mr. AnASf s :
Q. Gavitt, did you say? — ^A. Yes, sir.
Q. G-a-v-e-t-t-?— A. Yes, sir.
Q. Edward Gavett was clerk of that board? — A. Yes, sir.
CARNEY VS. SMIT!1. 595
ii. Wo8 he the township clerk? — A. Yes, sir.
Q. Of the township? — ^A. Yes, sir.
Q. Henry Ewing was a justice of the peace? — ^A. Yes, sir.
Q. And had been Justice of the [)eace in that township for some cousideral>le
time, a year or two, hadn't he? — A. Well, he was justice of the peace two years
before he came on the election board.
Q. William Mills was another Justice of the peace? — ^A. Yes, sir.
Q. And you were the supervisor? — ^A. Yes, sir.
Q. Mr. Lamphere, I show you the statement boolc and also the poll book and
the tally-sheet book which are contained in the envelope addressed to the
county clerk, Hillsdale, Mich., said to contain the election returns of the gen-
eral election held November 5, 1912. in the township of Woodbridge in this
comity, and I first call your attention to the statement book of that election
contained in that envelope, and on the outside of the envelope it says *' General
election, Noveml)er 5, 1912, township of Woodbridge, county of Hillsdale, Stale
of Michigan," does it not? — ^A. Yes, sir.
Q. On the last page of the printed matter, inside of the cover, in this state-
ment book is a certificate as signed by yourself? — A. Yes, sir.
Q. As one of the inspectors of that election? — ^A. Yes, sir.
Q. It is signed by E. L. Gavett?— A. Yes, sir.
Q. And Henry A. Ewing and William Mills?— A. Yes, sir.
Q. As election inspectors of the township of Woodbridge, county of Hills-
dale?— A. Yes, sir.
Q. Now, I notice that Just above that name it says this : " In witness whereof
we have hereunto set our hands at the place of holding said election in said
precinct this day of November, A. D. 1912." When did you make that cer-
tificate out and sign it? — ^A. I suppose that night or morning.
Q. What is your best recollection of it now? — ^A. That is my best recollection
of it
Q. You signed up these returns before you left there? — ^A. Yes, sir.
Q. Was this certificate to this statement book signed there before your elec-
tion board adjourned? — ^A. Yes, sir.
Q. On the morning of November 6, 1912? — ^A. Yes, sir.
Q. This certificate of your election board of the township of Woodbridge is
the certificate of your election board. Isn't it? — ^A. Yes, sir.
Q. Now, counsel on the other side called your attention yesterday to thiB
statement book to the fact that the blank spaces here has not any of the blank
spaces filled in. Tliat l>ook shows the officers who were voted for at that elec-
tion, does it not? — A. Yes, sir.
Q. And the numl>er of votes that each man had? — A. Yes, sir.
Q. And then uses that certificate I have already called your attention to? — A.
Yes, sir.
Q. Which you say your board signed there that day?— A. Yes, sir.
Q. You say that the ballot box that you used there at that election was not
sealed at noon? — A. I did.
Q. Did your board adjourn at noon? — A. For one hour; yes, sir.
Q. How many members of the board stayed there at the noon adjournment
while the others went out to dinner? — ^A. Three.
Q. Besides the gatekeepers? — A. I see there are four names on that pai)er
there — Mr. Foster was the township clerk.
Q. He signed the returns? — A. No, sir. There were two besides stayed
there, Mr. Ewing and Mr. Milla
Q. You went out to dinner, and was gone a tew minutes, a little while? — A.
Probably half on hour.
Q. You came back?— A. Yes, sir.
Q. Then I suppose the other members of the board went and you remained? —
A. They had their dinners with them. They had their dinners right there by
the ballot box.
Q. The election was running right along during the noon hour? — ^A. No, sir.
Q. But they sat right there with the ballot box and the election books, papers,
«tc., and loolced after them?— A. Yes, sir.
Q. The election, as far as you know, was fairly, honestly, justly, and cor-
rectly carried out and completed in that manner?— A. Yes, sir.
596 GABN£Y VS. SMITH.
E. R. (t ALLOW AY, recalletl. test i tied further on behalf of the coutestee, as
follows :
Examined by Mr. Fellows :
Q. Mr. Galloway, when the man^hal brought that shoe box up tliere was the
cover nailed ouV— A. Yes, sir.
Q. Securely nailed V— A. Yes, sir.
Q. It was in such .shape could you or could you not open it up and show to
the electors tliat it was an empty box before balloting commenced? — ^A. No,
sir; there was no way of looking inside.
Cross-examination by Mr. Adams:
Q. When you gi>t through that day counting up your ballots — the nuuil>er of
ballots in the ballot boxes — I mean now the ballots that had the candidates for
the various offices printed on them — they corresponded with the poll list, didn't
they?— A. Yes, sir.
Q. You didn't have any more ballots in the boxes than the poll list called
for? — A, No, sir.
Q. They tallied exactly?— A. I think so; yes, sir.
Q. Was there anything else in the box but the imliots they had at that elec-
tion in the boxes? — ^A. There might have been some of the amendments sep-
arated out ; I could not say; I don't remember that there were.
Q. You doa*t remember that there were? There was nothing in the box that
you improvised there as a ballot box when you came to open It up except the
ballots Uiat bad been voted there that day? — A. Nothing to my knowledge but
ballots.
Q. You looked it over carefully; you were chairman of that board? — A. Yes,
ii\r; I took the box and turned It over and examined it before a ballot was put
In, and there was nothing in tt.
Q. You made the best investipition you could to see whether anything was
in the box before ])utting amy ballots In it at all? — ^A. Yes, sir.
Q. To oi)en it up you had to miash the lid on It all to pieces with a hatchet,
it was so securely fastened, and you emptied the ballots out and looked them
over to see whether there w«« anything in there but ballots? — ^A. I looked the
tiallota over.
Q. You didn't have anything in thnt box except the ballots that had been
voted there Oiat day?— -A. No« atr.
Q. The number of balidH totsd there that day. that 5T)u got out of that
ballot box when yon openad It up and counted the ballots, corresponded with
your poll list as to the number of ballots that had been voted there that day? —
A. Yes, sir ; it surely did. I never heard anything to the contrary.
J. MILTON DEYE, being sworn to testiftr to the truth, the whole truth, and
nothing but the truth, testified on behalf of the conteatee, as follows:
Direct examination by Mr. Fei^lows:
Q. Where do you reside?— A. Allen Township.
Q. That is in this county! — ^A. Yes, sir.
Q. Did you live there on the 5th of November last? — A. I did.
Q. Did you take any part In the election held in that township on that
day? — A. Yes, sir.
Q. What part did yon take f— A. I was clerk.
Q. Who were the inspectors there?— A. William A. lies, .W. M. Berge, Horace
ladred. and one other clerk.
Q. You were township clerk?— A. Yes, sir.
Q. And have l)een township clerk for how long?— A. I was appointed to fill
vacancy about a year and a half or two years before that, and was elected at
the spring election before this November election.
(). W.MS Vv. Ul "korsoii tVe rVer clork? — \. Yes, sir.
Q. So at that election yow ind three inspectors and two clerks?— A. Tes, B(f.
Q. Did you take any adjonmment at the noon hour? — ^A, Yes, sir.
O Was tlir b'llot box containing the votes for the different candidates
sealed? — ^A. It was.
Q. At the time of the adjoamaient? — A. Yes. sir.
Q. What was done with the seal?— A. One of the Justices had the seal, f
don't remember which one.
Q. Who had the keys?— A. The other Justice.
Q. Who had the kev to the building?— A. We didn't leave the building.
CARNEY VS. SMITH. 597
Q. Was the tmllot box i^iveu to the other member of the board of Inspectors? —
A- There was dinner served in the building, away from the polling place; the
entire board went in there and took the ballot boxes with them.
Q. They were sealed and given to one, and the key of them held by another? —
A. Yes, sir.
Q. Now, did the other inspector take the ballot box iuto his iiersonal custody,
or did you take It? — A. The other Justice took the ballot box.
Q. What was done with it? — A. It was taken with us when we went to the
table.
Q. Was the ballot box left in the polling place during the hour you had your
noon recess? — A. No, sir.
Q. It was taken out of the polling place and taken into the place where you
ate? — ^A- Yes, sir.
Q. And kept there during the entire noon hour? — A. Yes, sir; until, perbar>H,
some one of us went back to the polling place.
Q. Then it was returned? — A. Yes, sir.
Q. What was done with the unused ballots? — A. They were put iu one of the
ballot boxes.
Of Where was this meal sen-ed; was it uot In another part of the same
hall? — A. In jjuother i>:irt; yes, sir.
Q. What hall was it?— A. Ford's Hall.
Q. Is that a place where they have public en^^ertainments? — ^^V. Yea. air.
Q. Is It a large hall?— A. Not that part of It.
Q. Is it divided into different rooms? — A. Yes, sir.
Q. The ballot box was taken out of the iiolling place and takeu Into the
room where you had dinner? — A. Yea, sir.
OroflB-exnmination by Afr. Adams:
Q. How far fi*om the room in which the voting was done that day was the
place where you had your dinner? — A. The door openeil from the hall into the
room.
Q. From one room into the o*^her? — A. Yes, sir.
Q. You took that ballot box, you were so careful, you took the ballot box
«nd took it right along with you and them — in the custody of the whole board —
while eating dinner? — A. That is what' I stated a few minutes ago.
Redirect examination by Mr. Feixows:
Q. Did you adjourn for supper? — ^A. Ne, sir.
Q. Had yon supper ser>'ed In there? — A. Yes. sir; it was brou^t In there.
Q. What time did you get through?— A. About 11 o'clock.
Q. Which one you »ieu was suiiervlsor? — A. Williams A. lies was elect eil
chairman of the board.
Q. What position did he hold?— A. Chairman.
Q. I know. I mean what position did he fill in the township? — ^A. He waji
just elected that day to take the place of the chairman, the supervisor was on
the county ticket.
Q. For that reason he was ineligible to sit on the board and Mr. lies was
elected by the board to take his place? — ^A. Yea, sir.
Q. He was not elected by the people? — ^A. He was elected by the people
when the board organized.
Q. He was selected by the board and submitted to the people, and the people
ratified it?
Mr. Adahs. I object to the leading questions that counsel Is putting to this
witness, and for that reason move to strike out the last answer and the last
four questions that counsel has put.
Q. I will ask you if Mr. lies was selected by the board and the selection
ratified by the people — if that is the way it happened?
Mr. Adamb. I object to that as irrelevant and immaterial, and leading and
calling for the conclusion of the witness, and not for a statement of what
occurred there.
A. He was selected by the board and ratified by the people there.
Cross-examination by Mr. Adams:
Q. I understood you to say that the seal to that ballot box was taken by one
of the justices when you went to dinner? — A. Yes, sir.
Q. And the key to the ballot box by another? — ^A. Yes, sir. .
Q. And the ballot box Itself was taken by another member of the l>oard?—
A. Yea, sir.
598 CARNEY VS. SMITH.
CARRYBEI.LE HANCOCK was recalled and testified fur her on behalf of
the contest ee, as follows:
Examined by Mr. Fellows :
Q. I show you these returns of the election held on the fifth day of Novem-
ber, 1912. In this county, the envelopes, and ask you as these envelopes came
in they were opened by you or your husband, Mr. Hancock? — A. Yes, sir.
Q. What was done with reference to tabulating the returns prior to the meet-
ing of the board of county canvassers?
Mr. Adams. I object to that as incompetent, inadmissible, irrelevant, and
immaterial, because there is no allegation in the answer of the contestee that
would admit auy such proof.
Mr. Fellows. I will state on the record, that I think it is in the answer of
the contestee, but in taking of all the testimony in this case we have objected
to the introduction of certain testimony, because in this contest when an
objection was made, we were informal »>y the gentleman upon the other side
that they proposcnl to ask for an amendment to the notice of contest, and tliey
then stated that an amendment would be prepared and served upon us prior
to the beginning of the taking of our i)roof8, but up to date there has been no
amendment of the notice of contest served ui)on us, and we are practically
through with our proofs. I do not desire to state that the proofs are closed,
but as we desire to have a conference among counsel representing the contestee
before that announcement is made. ' My impression is that this is tlie last wit-
ness now on the stand for the contestee. Certain testimony has been introduced
upon the other side uiK>n the theory that there would be an amendment to the
notice of contest and we should have an opportunity to meet that amended
notice of contest. It has not been served ui^on us yet. We deny the right of
the contestant to amend his notice of contest, but if such is the practice we
would, of course, have an opportunity to file an answer to its amended notice
of contest. So;ne testimony has been introduced which was not objected to by
us, because we understood that counsel for the contestant would claim the right
to amend. Our proof is now practically closed, and no notice of an amendment
of the notice of contest having been given we now and here move to strike out
all the testimony that has been introduced by the contestant which is not within
the original notice of contest filed.
Mr. Adams. I will state on the record that counsel has not stated the facts,
as shown by the record, in regard to the statement of counsel for the contestant
as to the amendment The record will show what was said. As far as the
amendment is concerned we will take care of that matter when before the
proper court to take the matter up.
Mr. Fellows. We do not apprehend it is within tl»e province of tlie com-
mittee which will hear this contest to permit an amendment to the notice of
contest after we have closed our proofs. As we understand it now this is the
last witness, although we do not desire to be foreclosed by that until we have
had an opportunity to confer, myself and my associates.
Mr. Adams. If counsel for the contested will remember what was said he will
recollect that it was stated at the outset that any new matter that the con-
testant offered that you would be expected to meet it by your proofs, as we
would ask an amendment aocoixlingly when we got around to it.
Mr. Fellows. My information as to what the record contains comes from my
associate, because that particular statement occurred at a meeting when I was
not present. I am advised that it was stated by the contestant that If they
desired to amend that it would be done before we commenced our proofs.
Mr. Adams. You are excusable for the mistake, if you were not present,
Mr. Fkllows. The record will show for itself. We claim that an amendment
to a pleading can not be made to the pleading after the other side has closed
their proofs, and are thereby foreclosed from putting in any further testimony.
The contestant has 10 days after our proofs are closed to put in further testi-
mony on their side, and I made this statement for the purtK)se of making the
record, as far as this particular question is concerned, squarely within the
original answer filed and the original notice of contest
(Last question read.)
A. I did the clerical work and copied the returns so the board of county
canvassers could complete their work quickly.
Q. That was all done before they assembled? — A. Yes, sir.
Q. Is that the customary way since you have been, or your husband has
been, county clerk? — A. Yes, sir.
CARNEY VS. smith! 599
Mr. Adahs. I object to that as irrelevant and immaterial what the custom
was, it is a question of what was done at this time, and I move to strike out
the answer.
Cross-examination by Mr. Adams:
Q. I suppose you kept the returns correctly, or trUnl to, didn't youV — A. Yes,
sir.
Q. Then you copied them into a book that you presented to the board of
county canvassers? — ^A. Yes, sir.
Q. Was that the book from which you read the votes for the several candi-
dates for Representative in Congress from the third congressional district
yesterday afternoon? — ^A. Yes, sir.
Q, From each precinct and voting place in the c«inty of Hillsdale? — A. Yes,
«ir.
Q. And the board of county canvassers canvassed that vote as made in this
county of Hillsdale November 5, 1912, and compared your tigures with the
returns of the several election boards of Hillsdale County of the November
5. 1912, election?— A. Yes, sir.
Q. If there were any mistakes in the figures you made that you presented to
the board of county canvassers, they corrected them? — ^A. Yes, sir.
Mr. Fellows. That is all of our witnesses.
I
I
INDEX.
Pnge.
Notice of motion 3
Notice of contest 3-13
Petition for an amendment to notice «f coatest 14
Amendment to notice of contest 14-19
Answer to notice of contest 16-35
Objections to amendment of notice of content ' . 35
Appearances for contestant:
Adama, Jobn W : . 36
Shields, B. C 36
Appearances for contestee:
Fellows, Grant 36
Frankhauser, W. H «. 36
Maynard, Horace S 1 36
Notice to take depositions 36
Officers before whom depositio&s were taken :
Ortffltb, Vaughan G ' 15
Stle^htz. Orra ^ 14, 15
Stookwell, Joseph W 13,30,215,216
Public acts of the s|)ecia] sessioB of tlie Legislature of the Btate of
Michigan l 212
Stntemeiit of votes given at geoera^ eleetiefi held Tuesday. November 5,
1912 59»-63
Stipulation - 36-86. ft8, 126-134, 433
Testimony for contestant 37-216
Testimony for contestee 216-509
Witnesses for ccmtestant :
Allen, William W — ^ 185-186
Batenian. William J 170-174,181-182
Burnett Ray ^ 174-176, 183
Carney, Claude S 212-215
Case, WIHls A 104,105-114
Davids, B. G 93-08
Early, Richard. 201-202
Elwell» Hubert 153-155
Fairchflds, Roland 199-200
riaits. Prank 196-198
Ford. Frank 114-128,390-392
Franks, Sylvester 78-80
Geary, W. B 206-210
Hawkins, Myron ^ 56-66
Hipp, W. C 202
Hollander, Lawrence 210-211
Johnson, E. A 98-104,105
Johnson, P. B 85-90
Labadie, B. B _^_ 203-205
Little, C. H ^ 188-190
Marsh, Harriet 183-185
Mosier, Jackson ' 43-48
Overmyer, F. M 48-56
Palmer, John 66-78
Peck, Alvord 190-192
Robinson, Samuel 37-43
Schneider, George W 135-153
.601
602 INDEX.
Wttnesfles for contestant — Continued. ^■■••
Smith, P. L 179-181
Sowers, Rosslyn L 80-85
Sterling,. Agnes M 134-135
Sweetland, H. B , 194
Ten Busschen, Albert T 186-188
Tower, Willis H 155-170
Van Blarcom, B. F 205-206
Vanderbeck, S. G 176-179,182-183
Wheeler, N. B 194-196
Wllkins, Jesse — - 202-203
Wise, Ernest 1- 19S-199
Wltherall, William 90-93
Yates, Walter J 192-194
Witnesses for contestee:
Allen, Williflm W 494-497
Barber, C. R 371-5S5
Barber, Jesse 582-5«3
Bemer. William 476-484
Bera, Joel H 243-247
Bleech, Miles H 549-551,571
Boyd, W. E 508
Brown, J. H 358-365
Bush, B. O 513-514
Campbell, Jay 576-582
Chase, James B 487-492
Christian, Fred L . 451-460,465-467
Christian. Harry 460-465
Church. Starr K 440-442.453
Clements Willlam»— 400-401
Crane, Harmon C . 548
Culver, S. W 467-476
Curtenlus, Edward F_- 514-546
Cushing, Cortez . 269-281
Deye, J. Milton... 506-597
Dowdigan, J. B 420-424
Dunning, Evander 405-412
Blwell, Richard H_ 546
Fast, Frank 646-548,549,671-572
Fisher, Claude B 424-427
Galloway, E. R 584-594 596
Gleason, O. J 554-555,583-584
Godfrey, F. B 505-507
Griffin, Gordon J 281-290
Guide, Herman 401-406
Hager, Denis A 216-235,247-249
Hall, Daniel - 266-268
Hamilton, H. A 365-.^
Hancock, Carybelle 656-571,598-599
Hart, Ray E 442451
Hoyi, A B 258-261
Huber, William L 290-.^)6, 298-299
Huntley, W. M 492494
Klmberly, Orrin 261-262
Knapp, D. W 237-243,249-250,333-334
Knowles, Claude S 385-3S9
Lamphere, Clarence 504-595
Little, Charles H 503-5(K5
Mapes, H. H 250-258
Martin. Wilbur C 296-298
Munger, Roy 427-431
Newall, Frank A 497-500
Nichols, John C 304-333.334-^58
Noyes, W. R 467
Payne, W. D 675-576
Pray, Ernest G 412420
INDEX. 603
Witnesses for coutestee — Continued. P****
Preston, Roy S 392-400
Reed, M. O 484-487
Rockwell, John R 500-501
Sawyer, John W 431-433
Sayer, Albert H 433-438
Shaver, |Iei1>ert 299-304
Siegel, lidfayette 551-554
Slater, Z. D 235-237
Smith. Kay 672-575
Thayer, George 511-513
Thome. Thomas H 439-440
Walters, Frank C 507-508
Waterman, Fred O 509-510
Weed. Herbert M 262-266
Wheeler, Norbert 501-5as
Wise. Ernest 510-511
a^:l
^ Eaniufid L'^auia Shields
CONTESTED ELECTION CASE
OP
CLAUDE S. CARNEY vs. JOHN M. C. SMITH
FROM THE
THIRD CONGRESSIONAL DISTRICT OP MICHIGAN.
STATEMENT OP PACTS.
Jchn M. C. Smith is a resident of the City of Charlotte, Eaton County, Mich-
igan, and was a candidate for Representative in Congress from the Third
Congressional District of Michigan on the Republican ticket.
Cla«de B. Carney is a resident of the City of Kalamazoo, County of Kala-
masoo« in the Third Congressional District of Michigan, and was a candidate
tor Sepresentative in Congress in said district on the Democratic ticket.
Edward N. Dla^^ley is a resident of the City of Kalamazoo, County of Kala-
mazoo, Michigan, and was a candidate for Representative in Congress in
th« TlUrd Congressional District on the National Progressive ticket.
Levant L. Roger was a resident of said Third Congressional District and
a candidate for Representative in Congress for the Third Congressional Dis-
trict of Michigan upon the Socialist party ticket.
The Third Congressional District of Michigan consists of the counties of
Kalamazoo, Branch, Calhoua, Eaton and Hillsdale.
The election was held on the 5th day of November, 1912.
On the face of the returns, as determined by the State Board of Canvass-
ers, on December 10th, 1912, John M. C. Smith received 14,609 vbtes in the
entire district; Claude S. Carney received 14,482 votes In the entire district;
Edward N. Dingley received 12,907 votes in the entire district.
The petition of Contestant was subscribed and sworn to on the 4 th day
o( January, 191S.
Notice of contest was nmde and dated January 4 th, 1913, and was served
on J49iia M. C. Smith January 8th, 1913.
Amendment to contestant's notice of contest was subscribed and sworn
to the 22nd day of April, 1913, and notice of the -same was mailed to Horace
S. Maynard, attorney for the contestee, on the 22nd day of April, 1913, and was
received by said attorney for tbe contestee on the 23rd day of April, 1913.
That a copy of the petition and the proposed amendment was personally
served on John M. C. Smith, the contestee, in Washington, on the 24th day of
April, 1913.
The answer of the contestee was dated February 1st, 1913, but the said
answer was not sworn to at any time.
The service of the answer was made Pebrpary 3rd, 1913.
A stipulation concerning the taking of testimony before Joseph W. Stock-
well, United States Commissioner and Notary Public, and as to the manner
and form of taking the testimony and of transsacting the same, was made
on the 30th day of April, 1913. (R. 35).
A statement of facts as to the conditions relied upon -by contestant in spe-
cific election precincts is not set forth in detail here, as it is believed that
a detailed statement of the facts under each sub-head, as hereafter covered
by the brief, will be more convenient to the Committee and to counsel. We
do, however, wish briefly to call attention to the political conditions existing
5<?830D
in Michigan for some years past, and particularly to some of the counties in
this district.
The State of Michigan has been overwhelmingly Republican for some years.
There are many counties in the Slate in which there was in 1912 practically
no Democratic enrollment, and but a very small proportion of the total vote
of the counties being Democratic. The result was that in the vast majority
of election precincts in the State, the entire election machinery was Repub-
lican. Not only the voters, but the election inspectors, challengers, canvass-
ers, and county officers were entirely Republican. Out of this condition
grew methods of conducting elections, making returns and issuing certificates,
that were, to say the least, not in compliance with the election laws. A well
known illustration of this condition was found in the contested election case
of William J. McDonald vs. H. Olin Young, previously disposed of a this ses-
sion of Congress. While the issue is not here before us as to the conduct
of general elections throughout the State, the comments we have made caa
be applied to some of the counties in the Third Congressional District, and
specifically to the county of Eaton, the home of John M. C. Smith, contestee,
where we find, as a result of these conditions, that the eDmocrats were so
few in comparison to the number of Republicans that the election machinery,
in many precincts was entirely in the hands of Republicans, and in all pre-
cincts the Republican influence is so completely shown by the record in this
case that we feel warranted in saying that the most serious obstacle to any
Democratic candidate lay in the fact of his having to receive his ballots, have
them marked, to deposit them, have them counted and returned certified by
Republicans, who, from their conduct, were more interested in the result of a
Republican being elected than of giving Democrats the rights, privileges and
opportunities which the electioB statutes particularly furnish them for pro-
tection. ^ , ^.
A perusal of this record will show that in the County of Eaton the election
officials in many instances knowingly and wilfully disregarded the sUtates
of Michigan which were enacted for the very purpose of safeguarding the
interests of all candidates, and permitted ballots to be handed out by men
to whom the election laws gave no authority whatsoever; permitted the bal-
lots to be received by men other than particularly specified in the statutes;
permitted ballots to be counted by men prohibited from counting by satute;
adjourned and left ballot boxes unprotected during a period of adjournment;
opened ballot boxes in the middle of the day and permitted men, not mem-
bers of the Board of Election Inspectors, to count, in open violation of Michi-
gan statute, which provides for the secrecy and integrity of the ballot;
changed returns at the personal request of John M. C. Smith, contrary to a
specific stotute; delayed returns; totally disregarded the mandatory provis-
ions of the election law as to assisting voters to vote; directly violated spe-
cific statute by soliciting votes in and around the booths of said election,
and in some Instances the inspectors of election themselves violated the spe-
cific statute against soliciting votes, and the conditions had apparently so
hardened the election officials that when remonstrated with they would merely
laugh and ask, "What are you going to do about it?"; counted ballots unini-
tialed, when not only the statute expressly prohibited it. but the Supreme
Court of Michigan had passed on all fours on that proposition.
These conditions gave rise to situations which are not only suspicious, but
stamp the conduct of men connected with the elecUon as more than unfair.
As an instance we call attention to the conduct of John C. Nichols, who
under oath, in this Record (p. 330) stated that he knew that Uie law of
MichlKan nrohibied any person whose name appeared upon the Ucket as any
Slate ^frSm acting o^the Board, yet he admitted that he took charge o^
the ballot box and deposited votes in the ballot box which *»« received from
various voters. He directly admitted that he understood under the law of
Michigan at that time that he had no right to do so as he was a candidate for
the office of Circuit Court Commissioner at that time, and as such had to be
"^ ?t'''was*'this''ram^^ Mr. Nichols who turns up in the middle of November
1Q12 ftt the meetinK of the Board of County Canvassers, claiming to be County
Clerk wLn he makes this claim, it is then discovered for the first Ume that
Pheformer cTounty S claimed to have resigned on the day before election,
nordeT to make himself a legal candidate for the legislature. ^Before the
Board of County Canvassers, this same Nichols is then claiming that he was
appointed County Clerk on the same day that Pray resigned, and yet his bond
as County Clerk is not signed or acknowledged until the 14th day of Novem-
ter, nine days after election day.
It was the same Nichols who. when the reports from the townships of
Carmel and Sunfleld were before the County Board of Canvassers, claimed
that the alleged discrepancies were not of sufficient importance to warrant
sending for the Boards of Election Commissioners and objected that the
expense was unnecessary, and yet on the second day later is found going
as the personal representative of John M. C. Smith to one of the same boards
and getting the affidavit (R. 334-335) which the contestee and his attorneys
have endeavored to suppress. (R. 249-250).
The conduct of Postmaster Bera is just as questionable and particularly
in his permitting communications and documents to pass through his office as
mail without postage. (R. 334), and in tallying for the clerk of election and
acting on the election board without taking any oath or having any right so
to do do; this being at his own request. (R. 244).
The vote by counties for the contestant and contestee was as follows:
Carney, Contestant,
Smith, Contestee
3,796
Kalamazoo
3.288
2,226
Branch
2,156
3.828
Calhoun
3,966
2,390
Eaton
3,302
2.242
Hillsdale
1,897
14.482 ToUl 14,609
The first group of precincts which wo wish to discuss in detail are Cli-
max. Kalamazoo county; 3rd Ward. City of Charlotte, Eaton County; Town-
ship of Sunfleld, Eaton County; 2nd Ward, City of Charlotte, Eaton County;
Carmel township, Eaton County; Winsor township. Eaton County; 2nd pre-
cinct, 2nd Ward, Battle Creek, Calhoun County.
The second group discussed will be those precincts covered both by the
petition and the answer, where the oath was not administered to voters who
requested help.
FIRST GROUP.
I.
Township of Climax, County of Kalamazoo.
In the Township of Climax, on the face of the returns, John M. C. Smith
was given 83 votes and Claude S. Carney 82 votes. (R. 155).
Contestant charged in his notice of contest (R. 11) that a large number of
votes cast in this township were not canvassed, or considered.
The entire election board of this township was summoned by contentant to
produce the ballot box containing the ballots cast at said election, and by
agreement of the attorneys for contestee and contestant, the ballot box was
opened in the presence of the parties and a recount of the ballots made,
which showed that the actual vote cast in the precinct of Climax township
was as follows. For Claude S. Carney 100, for John M. C. Smith 90. (R.
158-4-5).
The evidence is undisputed that a large roll of ballots, a large majority
of which were Democrat ballots, were overlooked, either by design or mis-
take, on the part of the election board (R. 154) and by the corrected returns
from this township Carney would gain 11 votes.
ARGUMENT.
No legal question can be raised as to the right and duty of the com-
mittee to accept the revised figures as to the township of Climax. The un-
disputed evidence shows that when the original figures were received all
parties locally Interested In the election immediately noticed that the figures
could not be correct for that township, and when the contestant and con-
testee, with their attorneys, met to take testimony, there was present on that
day the entire local board of election Inspectors, together with the ballot
box, all of which had been secured by proper legal process by the contestant.
The contestee, as represented there by Mr. Fellows and Mr. Frankhauser,
then enfered into an agreement with Mr. Adams for the contestant and all
consented to the opening of the ballot box and a recount of the votes, and
that the votes therein contained could be counted and the result placed upon
the record. (R. 153).
Original vote from this township for John M. C. Smith 83 votes
Original vote from this township for Claude S. Carney 82 votes
As corrected, vote for John M. C. Smith 90 votes
As corrected, vote for Claude S. Carney 100 votes
Add to John M. C. Smith 7 votes
Add to Claude S. Carney 18 votes
Net gain for Carney 11 votes.
IT.
3rd Ward, City of Charlotte, Eaton County.
On the face of the returns, John M. C. Smith received 214 votes, Claude S.
Carney 116 votes. (R. 62).
In this precinct the undisputed evidence is that the inspectors were guilty of
actual fraud. That the frauds practiced by the election board were directed
solely to secure the election of John M. C. Smith, in direct violation of the
Michigan Election Laws.
Jackson Mosier testified that Eyander Dunning and J. B. Dowdigan, both
Republican inspectors of election, repeatedly went into the booth when voters
were preparing their ballots, without requiring any of such voters to take the
oath that said voters could not read English, or did not come within the
other requirements of the law as to the oath. He specifically heard Mr. Dun-
ning, who was then inspector of election, make suggestion to the voters to
vote for John M. C. Smith. (R. 45). He furtser testified,
"We had some trouble about it. I told Mr. Dunning the soliciting
of votes should be stopped. He said 'What are you going to do about
it?* (R. 48). I heard the same suggestions made to all voters who
asked for instructions. (R. 47). I should say seven or eight asked for
instructions. (R. 46). Usually Dowdigan and Dunning went in to-
gether. (R. 44). I was not there all the time. I did not hear any
suggestions made for any candidate other than for John M. C. Smith.
(R. 45).'
fi
J. B. Dowdigan admitted that he solicited one voter, whom he was assisting
to vote, for John M. C. Smith (R. 421), and that he went into the booth with
voters maybe three times. (R. 420).
Dunning admitted that he solicited a voter to vote for Smith. (R. 426).
Roy Munger (R. 428) testified that the only electioneering he could reemm-
ber "was when an old man went in there and asked for instructions, and
Mr. Dunning daid something like this: "How about John M. C. Smith or
J. M. C. Smith?*"
These facts show conclusively the activity of the election inspectors in this
ward, and that they were actively engaged in promoting the election of Smith.
It is thus shown that the election board was in sympathy with the unlaw-
ful means used. This was a wholly Republican board, and the spirit with
which they interpreted the election laws and their acquiescence in the illegal
conduct of the election is so completely shown by the answer of Dunning to
Mosier, "What are you going to do about R?" that it is unnecessary to further
discuss the facts surrounding that particular precinct.
ARGUMENT.
Sec. 3643, Mich. Compiled Laws of 1897. being
Sec. 170 of Exhibit 67,
provides:
"It shall be unlayful for the board, or any of them, or any person in
the polling room, or any compartment therewith connected, to persuade
or to endeavor to persuade any person to vote for or against any par-
ticular candidate or party ticket."
6
The tindisptited testimony concerning this precinct is that Mr. I>unning, a
Republican inspector, suggested and solicited votes for John M. C. Smith,
while acting as a member of that election board. Dowdigan admitted that
he solicited one voter.
The soliciting of votes, the entering of the booths, was in direct and open
violation of the specific and mandatory provisions of the statute. This kind
of conduct and this particular section of the election law has been very forci-
bly construed in
Attorney General vs. McQuade, 94 Mich. 439,
in which case the court stated:
"These provisions of the law must be held mandatory or else the pur-
pose of the law is defeated and the opportunities for fraud are increased
rather than diminished. If an inspector or other person be permitted
to enter the booths with the voters, the danger is far greater than
under the old system, where there was some opportunity to see and
detect fraud. Under this practice venal voting could be readily accom-
plished. The law is designed to secure absolute secrecy to the elec-
tor, and thus prevent all opportunity for corrupt practices. The law
does not permit parties to profit by such frauds, though they may not
have participated in the fraud.
The rule laid down by the text writers is as follows: 'When fraud on
the part of the officials of election is established, the poll will not be
rejected unless it shall prove to be impossible to purge it of the fraud.
When the result at a poll as shown by the returns is false and fraudu-
lent, and it is impossible to ascertain the actual vote from the other
evidence in the case, the vote of such poll must be wholly rejected.'
Paine Elections, Sec. 499; McCrary Elections, Sees. 190-192.* This rule
is founded on good sense and is sustained by the authorities.'*
In the same case, on uase 444, the court said:
"It is of far more consequence to the people of this state and to the
stability of our form of government that these provisions should be
held mandatory, than is the fact that occasionally the will of the people
may be defeated by adhering to them, and rejecting the entire precinct
so tainted with fraud. Whatever may have been the rule under former
election laws, it is evident that under this statute no voter can be com-
pelled to remove the secrecy of his ballot and state how he voted. If
these provisions are held directory only, it follows that the intent of the
people to pass a law to preserve the purity of elections is defeated and
the statute instead provides sure means to protect and cover up cor-
ruption and venality. If the averments of the replication are main-
tained by proof, it follows that the receiving of votes of thirteen unreg-
ittered persons, and permitting persons to enter the booths witK vot-
ers* contrary to law, tainted the vote of the whole precinct."
Sec. 3642 Mich. Compiled Laws of 1897, being
Paragraph 169 of Exhibit 67,
Is as follows:
"When an elector shall make oath that he cannot read English, or
that because of physical disability he cannot mark his ballot, or when
such disability shall be made manifest to said inspectors, his ballot
shall be marked for him in the presence of the challengers of each
political party having a challenger at such voting place by an inspector
designated by the board for that purpose, which marking shall be done
in one of the booths."
The provisions of this section, relative to the marking of the ballots, are
mandatory, and have been so held by the Michigan supreme court.
Attorney General vs. McQuade, 94 Mich. 439, at 442.
McQuade vs. Furgason, 91 Mich. 438.
Attorney General vs. May, 99 Mich. 545.
6
No language we could use could present a stronger argument than the lan-
guage quoted from the Michigan supreme court, which is directly applicable
to the conditions that existed in this voting precinct on November 5th, 1912.
The only conclusion to be reached from the undisputed testimony, the stat-
utory provisions, and the language of the supreme court of Michigan is that
the entire vote of this precinct must be thrown out and not considered.
The record shows conclusively that the soliciting of votes in this precinct
was open and continuous during the whole day; that not only the entire board
could hear the conversation and the soliciting, but that prospective voters in
the voting place could hear, and must necessarily have been affected by find-
ing the entire election board either actively engaged in soliciting votes for
Smith, or at least tolerating it.
The condition in this precinct became so absolutely bad, and apparently
the board were so hardened to it, that when complaint was made, one member
of the board boldly stated, "What are you going to do about it?"
No man. no committee, no court can draw a fixed and determined line In
such kind of conduct, and say that so many definite votes only were affected.
That conduct was actual and active fraud, and it was that kind of conduct and
that kind of a voting precinct that the Michigan supreme court condemned in
the McQuade case, wherein that conduct was Judicially determined to be suf-
ficient to taint the whole vote of the precinct, and the whole vote should be
rejected.
Original vote for Smith as shown by returns 214 votes
Original vote for Carney as shown by returns 116 votes
Loss to Smith 214 votes
Loss to Carney 116 votes
Net gain for Carney 98 votes.
III.
Sunfield Township, Eaton Connty.
In this township, the evidence shows that about twelve o'clock on the night
of election, Mr. Mapes, one of the inspectors, made a motion that the board
adjourn until the next morning and finish the count the next morning. The
motion was carried. The board then adjourned, leaving the tally books, poll
books and statement books all there in the voting place. The testimony is
not specific that the ballot boxes were locked up. John Palmer (R. 72) one
of the inspectors of election, then went home and went to bed. He was back
at five o'clock the next morning, and found four gentlemen there, including
the postmaster. He did not examine the ballots that had been counted in his
absence. When they adjourned at night about one-half of the ballots had
been counted. W^hen Palmer returned at five o^clock all had been counted
except fifteen to twenty-five ballots, and he did not examine those that had
been counted in his absence.
Sylvester Franks, Village Marshal of the Village of Sunfield, saw Mr. Mapes
and Mr. Hager. two members of the election board, in a barber shop in Sun-
field about twelve o'clock at night. This shop was twenty-five or thirty rods
from the voting place. He heard Mr. Mapes say they had adjourned. The
reason of being at the barber shop was that they were receiving general
election returns from other communities at that place. The ballot boxes
were left in a room and the witness carried a key to it. There was also an-
other key kept in a little tin box by the side of a door, so that people couW
get in and give a fire alarm.
Dennis A. Hager, a witness for the contestee, and one of the inspectors ot
election for the township of Sunfield, a Republican, testified that the board
took an adjournment about one o'clock on the morning of the 6th, when
about half of the ballots had been counted. The box was not sealed but the
ballot boxes were left there, and all went out and turned out the lights.
With Mr. Mapes, he went over to the barber shop, and later between one
and two o'clock wert back and commenced counting again. Mr. Bera, the
Postmaster, came in and helped keep the tally and count the votes. (R. 221).
D. W. Knapp, one of the clerks of election at Sunfield, testified that Mr.
Bera, the Republican postmaster, came in about a half hour before the count-
ing was completed, and helped keep tally on Mr. Mapes tally book. (R. 249).
Mr. Bera, himself, (Republican postmaster) testified and admitted that he
tallied for the clerk. He claimed that the clerk appeared to be fatigued,
and Bera aaked the clerk to let him (Bera) tally. The clerk left after Bera
began to tally. He also testified:
"I was not sworn there as an officer of the election, t was not
sworn in by anybody. I did not take any oath as clerk of that elec-
tion." (R. 243).
The election laws in Michigan provide that the supervisor, two justices of
the peace whose term of office should first expire, and the township clerk of
each township should be the inspectors of election. In this precinct, on
November 5th, each inspector designated by the statute was present, and
there was no vacancy. Inspector J. H. Palmer was supervisor, Inspector
Frank H. Bacon, Justice of the Peace, Dennis A. Hager, Justice of the Peace,
and Inspector H. H. Mapes, Township Clerk, and D. W. Knapp was chosen as
provided by the statute as second clerk. (R. 67-68).
The board then proceeded to appoint what they called an "instructor" of
election, and appointed one Albert Sayer to act as this so-called "instructor,"
and caused him to take the following oath:
"SUte of Michigan
County of Eaton* ss.
I do solemnly swear that I will support the Constitution of the United
States, and the constitution of this State, and that I will faithfully discharge
the duties of the office of instrucor of his election, held on Tuesday, the 5th
day of November, 1912.
ALBERT SAYER.
Taken, subscribed and sworn to before me
the 6th day of November, 1912.
FRANK H. BACON,
Justice of the Peaee."
The arrangement of the booths in this voting precinct was such that the
board sat at a table on one side of the room, and on the east side of the
booths. That Sayer as "instructor" was given ballots by the board and he
took a position on the west side of the booths, and out of sight of each and
every member of the board, and handed out the ballots to the voters as they
came la.
Therefore, in this precinct, the ballots were in possession of an individual
not a member of the board, not authorised in any way whatsoever by any law
of MIehigan to have in his hands any ballot except the one he voted. Yet he
was not only given the ballots, but he was given the custody and care of
them at a point which placed him beyond the sight of any member of the
board. (R. 69-70).
Sayer, when sworn as a witness by Contestee John M. C. Smith, admitted
tbese conditions, (R. 443) testifying, among other things:
"The voting booths were along here, and I was on one side and the
board was on the other. I delivered a ballot to each voter that day.
I did not go into the booth with any voter, but I went to the door to
show them. I remained at the polls from early in the morning until
twelve o'clock, and until five o'clock. I delivered each ballot that was
voted." (R. 433.434).
•
"There were four booths attached together. They were about five or
six feet high. I could not see the rest of the board. When I was
handing out the ballots, the other members of the board were perform-
ing their duties on the east side of the booths and I could not see what
they were doing. I was the only one who was attempting to perform
any duty on the west side of the booths." (R. 435).
"I remember of two men calling me up in the booth and asking me
some Questions about the ballots, about how to mark them, and I told
Uien how to mark them. I saw one man mark his ballot outside be-
fore he went into the booth. He marked it at my table there." (R.
437).
8
The above witness, Albert Sayer, was a witness for John M. C. Smith, the
contestee, and the present sitting member.
In this precinct John M. C. Smith received 174 votes, Carney 104.
Our contention is in this precinct that the entire vote should be thrown
out. This would make Carney gain 70.
ARGUMENT.
The action of the board of election inspectors in this district in appointing
one Albert Sayer as a so-called "instructor" and delivering to him all the
blank ballots, and his distributing them one by one to the prospective voters
during the entire time that this precinct was open to receive ballots, was a
flagrant, open, specific violation of the election laws of this State.
Mich. Compiled Laws of 1S97. Sec. 3640, being
Section 167 of Exhibit 67,
provides.
"No ballot shall be distributed by any person other than one of the
inspectors of election, nor in any place except within the railing of the
voting room to electors about to vote, and no ballot which has not the
initials of a member of the board of election, written by such member
on the back thereof, shall be placed in the ballot box.*'
No more express violation of a mandatory provision of the election law of
Michigan could be conceived than the violation in this voting precinct. Not
only the express provisions of the above section of the law were violated, but
the entire spirit back of the election laws of Michigan that provide for
secrecy and the integrity of the ballot was ignored. A voter, and all the
voters of a precinct have the absolute right to protection from an official pro-
vided for by the election laws, and to entrust such power, knowledge or dis-
cretion to an absolute interloper into the election machinery cannot and will
not be tolerated for an instant.
The supreme court of the State of Michigan has spoken with force and
absolute finality on this exact statute and condition, in the following case:
Attorney General ex rel. McCall vs. Kirby, 120 Mich. 692,
which was a quo warranto ])roceeding by the Attorney General at the relation
of McCall against Kirby to determine the title to the office of Prosecuting
Attorney for the County of Gratiot. The lower court entered Judgment for
respondent. Relator brought error and got reversal. The relator and
respondent were candidates for the office of Prosecuting Attorney at the elec-
tion held on November 8, 1898. in the County of Gratiot. The county board of
canvassers returned that the relator received 2,991 votes and the respotident
3,014. The relator claimed that the returns from the township of Elba should
be thrown out. If this were done the relator would be elected.
The arrangement of the booths was such that the prospective voter passed
through a gate and went down an aisle on the left side of the booths. At the
farther end of the aisle was a table upon which the ballots were kept. The
voter there received a ballot from one Kerr, and then went into a booth,
marked his ballot, passed through the booth, coming out on the further side
from the point of entrance, passed by a table where the board were sitting,
handed his ballot to an inspector and passed out a second gate.
In addition to all the officers provided by the statute, the inspectors of
election chose this Kerr as an "instructor.** Kerr took the oath, a copy of
which was in the record. The inspectors after having marked the ballots, as
provided by law, gave them to Kerr, who took them over and placed them
on the table first mentioned above. He took them as wanted. It was his
custom to ask voters as they entered if they knew how to vote, and if they
desired instruction, he took the ballot, sometimes holding it against the wall,
and gave instructions. He had free access to every voter who came In. It is
clearly established that he talked with them while in the booths with the
doors open and himself standing in the door of the booth. He was, while
talking with the electors, a good deal of the time out of the sight of the
inspectors and challengers. Several testified that they could hear him talk-
ing to the electors but could not hear what he said. Several voters testified
that he showed them on the ballot where to vote for respondent if they
desired to. There is no evidence of attempting to influence voters unless this
9
be so considered. No protest was made to the action of Kerr during the elec-
tion, and M appears that Mr. Kerr had filled this position in other elections.
"Grant. C. J. (after stating the facts.) Manifestly, the election law
was wholly ignored in the appointment of Mr. Kerr, in intrusting the
ballots to him, and permitting him to have free access to the electors
after they had passed into the voting precinct, and into the booths
themselves. It is urged that the inspectors of election acted in good
faith, and supposed they had the right to appoint a man as an instruc-
tor of election. It is difficult to understand how intelligent men should
reach this conclusion. The law makes no such provision, but makes
it the clear duty of one inspector to keep possession of the ballots, and
to hand them to the voters, after another inspector has opened the
package, and still another has put hts initials upon them. It is due to
the members of the election board to say that there is no evidence that
they acted form corrupt motives. If. however, this conduct can be sus-
tained, and the plain provisions of the law ignored, rascals can very
readily make the same plea, and it would be difficult to expose their ras'
caHty. These provisions of the law have been held mandatory. Attor-
ney General vs. McQuade, 94 Mich. 439; Attorney General vs. Stillson,
108 Mich. 419. By a reference to the latter case, on page 421, it will
appear that the interpreter, an officer provided by the act, was sta-
tioned very near to, and in plain sight of, the inspectors, and talked with
the voters, as they came in, in a foreign language. It does not appear
that there was more evidence of fraud in that case than in this. That
case differs from this only in two particulars. First, that the conversa-
tion between the interpreter and the voters was not tn the English
language, as it was in this; and, second, that the "instructor** as he was
called in this case, had a better opportunity to secretly influence elec-
tors than did the interpreter in that. If these provisions are man-
datory,— and we have so held, — they cannot be evaded by showing
that the parties acted iu good faith and that voters were not influ-
enced. The law was intended to prevent just such transactions and
chances to influence voters, and courts cannot fritter them away by
permitting jurors to find that there was no fraud and that voters were
not unduly infiuenced.
The judgment must be set aside, and one entered for the relator.
The other Justices concurred.'*
Thift case is also cited in
79 N. W. 1009.
90 A. S. 82, note,
15 Cyc. 365.
It was cited and approved by the Michigan Supreme Court in
People ex rel. Anderson vs. Rinehart, 161 Mich. 585 at 587,
wh^re the court said, in reference to said case:
"The vote of a township was excluded because an unofficial person
was appointed instructor to distribute ballots who was allowed access
to voters even after they had entered the booth, and this was held not-
withstanding the fact that the parties all acted in good faith and the
absence of proof that any one was unduly infiuenced."
No language we can use can add to the force of the above opinion of the
supreme court of Michigan, and unless the plain statutory provision and the
emphatic decision of the supreme court are ignored, the entire vote of the
township of Sun field must be excluded.
The original vote for Smith as certified was 174 votes
The original vote for Carney as certified was 104 votes
Dedticted from Smith total vote 174 votes
Deducted from Carney total vote 104 votes
Net gain to Carney 70 votes.
10
2nd Ward, City of Charlotte, Eaton County.
In this ward, one John C. Nichols, who was a candidate on the Republican
ticket for the office of Circuit Court Commissioner, and a practicing lawyer,
and who, later in the year, towii: November 14, 1912, then for the first time
made public his claim that he had been appointed County Clerk on the 5th
of November, 1912, without taking any oath of any kind, or pretending to
have any authority to act, took charge of the ballot box, received and de-
posited ballots from the voters, from an hour to an hour and a half. (Testi-
mony of F. M. Overmyer, R. 50; Testimony of E. D. Davids, R. 93-4).
Mr. Nichols himself, sworn as a witness for the contestee (R. 330) admitted
that he was an ailomey and thai he knew that ihe law of Michigan prohib-
ited any person whose name appeared ui)on the ticket as a candidate for any
office from acting on the election board. He admitted that he took charge
of the ballot box. and deposited balolts in the ballot box which he received
from various voters. He admitted that he knew that as a candidate for office
he did not have any business to receive ballots, and knew that to be the law
'when he went into the second ward and deposited ballots in the ballot box.
(R. 331). W'hen Mr. Nichols was receiving these ballots and depositing them,
the inspectors at that voting place were on the opposite side of the booth,
and the inspectors could not see what Mr. Nichols was doing when he was
depositing and receiving tho^e ballots. (R. 52). The booths were about
seven feet high, four in number, attached together consecutively, covering
about twelve feet in length, and while Mr. Nichols was receiving and dpos-
iting these ballots he was alone where he was doing that work, and the
inspectors of election were on the other side of those booths.
In this ward John M. C. Smith, on the face of the returns, received 161
votes; Carney 107.
Mr. Nichols was both receiving and depositing the ballots from the electors
and was alone when he was doing that work, and the other inspectors were
on the other side of the booth. (R. 52).
In this precinct for a portion of the time when Mr. Knowles was at dinner.
Mr. Hamilton, one of the inspectors, handed ballots to the people who came
in and wanted them, then went to the other side of the booths to receive the
ballot, and thus left the ballots that Mr. Knowles had marked on the table
where he placed them. Mr. Hamilton then went on the other side of the
booths and received ballots and went and deposited them in the ballot box.
and there was nobody especially in charge of the ballots that were left on
this table when he went over there to deposit ballots in the ballot box (R.
369-70), and the only inference to be drawn from this testimony is that when
Mr. Hamilton was where the ballots were that were to be handed out. the
ballot box was on the opposite side of the booths alone and unprotected.
Therefore, from this testimony, (R. 369-370) the law was alternately violated
in first leaving the initialed ballots alone and unprotected, and next leaving
the ballot box alone and unprotected, with the obstruction of the booths
between. ,
This same condition existed when Mr. Knowles was alone acting as inspec-
tor during parts of the day. (R. 386). Mr. Knowles passed out the ballots
and also received them, getting to the ballot box by going down one side of
the booths and crossing to the ballot box on the south side, then going
around the booths to the west end. (R. 386).
ARGUMENT.
In this precinct, we find John C. Nichols, without taking any oath of any
kind, or pretending to have any authority to act as such, taking charge of the
ballot box: not only reroiving ballots from the voters, but also depositing
them in the ballot box. He was not an ofiicial of the election board, he was
not sworn to perform any duty, and was the rankest kind of an interloper
in this particular precinct. His activity in behalf of Mr. Smith, as shown
by his presence in various places and in various capacities, not only preced-
ing the election and on election day, but in this contest, shows that his
actions bespeak him more than an interloper and warrant the charge that
his activities were the result of specific design. His appointment as County
Clerk, his statement before the County Board of Canvassers as to Carmel
11
and Sunfield townships, his activity in getting the affidavit above referred
to, and the peculiar phraseology of that affidavit, his giving out of false
returns., his presence at different voting i v-cincts on election day, all stamp
him and his actions as being just the l<ind of a man and just the kind of
conditions that the election laws try to provide against.
provides:
Michigan Compiled Laws of 1897, Sec. 3640
being Paragraph liiT of Kxhibit 07,
"No ballot shall be disiributcd l)y any person other than one of the
inspectors of election, nor in any place except within the railing of the
voting room, to electors about to vote, and no ballot which has not the
initials of a member of the board of elect icm written by such member
on the back thereof shall be placed in the ballot box."
Mich. Compiled Laws of 1897, Sec. 3636, being
Paragraph 163 of Exhibit 67,
among other things, provides:
"Before leaving the booth, the elector shall fold his ballot, so that
no part of the face thereof shall be exposed, and so that the initials of
the inspector shall be on the outside thereof, and on leaving the booth
shall at once deliver, in public view, such ballot to the inspector
designated to receive the same, who shall thereupon announce audibly
the name of the elector ofTering the same and the number of the bal-
lot, and shall ascertain by comparison of the number of the ballot
with the number of the ballot given such elector as shown by the poll
list, whether the ballot presented is the -same one given to such elector,
and If it is th same, the inspector shall tear off the corner of the bal-
lot, where perforated, containing the number, and shall then, in the
presence of the elector and the board of inspectors, deposit the same
in the ballot box without opening, and if it is not the same ballot
given said elector, it shall be rejected."
Mich. Compiled Laws of 1897, See. 3612, being
Paragraph 139 of Exhibit 67,
provides:
"That at all elections at which any Presidential Elector, Member of
Congress, Member of the Legislature, State or County officer, or Circuit
Judge is to be elected, or any amendments to the constitution, the
supervisor, two Justices of the Peace not holding the office of Super-
visor or Township Clerk, whose term of office will first expire, and the
Township Clerk of each township, and the assessor, if there be one, an
alderman of each ward in a city. Fhall be the inspectors of election,
provided, that in all voting precincts where by s|)ecial enactment pro-
visions exist for desiixnatinii: inspectors of election, said provisions are
not to be supei'seded, but sucli oMWers sliall l^e (li(» inspectors of election
under this act; And provided further. That no person shall act as such
inspector, who is a candidate for any office to be elected by ballot, at
•aid election."
We therefore find that Mr. Nichols, as a candidate for election to the office
of Circuit Court Commissioner at that election, was specifically and abso-
lutely prohibited from acting as an inspector. We find that Mr. Nichols was
not a member of the election board of that i)recinct by virtue of any law.
nor was he chosen as an individual by virtue of some local member being
absent. He was purely an individual who took it upon himself to inject
himself into the election proceedings, and to perform a function that was
st^ecifically confined to one of the inspectors of that election, viz: receiving
the ballot, announcing the name and number and depositing the same in a
ballot box.
We find that in the City of Charlotte, under the charter there existing, that
if the last above quoted election law did not apply as to the organization of
the board, that by the charter aldermen of the City of Charlotte were to act
12
as members of the board, and Mr. Nichols was not an alderman.
With these conditions existing, the actions of Mr. Nichols, and the acquv
escenci of the board and the i^ormitting by the board of him to act in the
capacity in which he did act. i riii>!;s this precinct plainly within the decision
of the Supreme Court of the State of Michigan in
Attorney General ex rel. McCall vs. Kirby, 120 Mich. 592.
which decision is set forth in full above.
Mr. Nichols was not even in as favorable or explainable a situation as was
the "instructor'* in the Kirby case, but Mr. Nichols went even farther, because
he was a lawyer at that time and expressly stated on his examination as a
witness in this contest that he was a lawyer then, a candidate for office, and
knew when he went into the second ward and deposited ballots in the ballot
box the specific provisions of the law prohibited him from acting in that
capacity, or any other capacity at that voting precinct.
Under the provisions of the election law quoted and the decision of the
Michigan Supreme Court, this precinct must be thrown aside and the vote
declared void.
In the original returns Mr. Smith reecived 161 votes
In the original returns Mr. Carney reecived 107 votes
Deduct from the votes for Mr. Smith 161 votes
Deduct from the votes for Mr. Carney 107 votes
Making a net gain to Mr. Carney of 54 votes.
It is not sufficient within the statute or the decisions of Michigan to
merely throw out the number of votes which Mr. Nichols claims he received
and deposited, for the same argument as presented before in this brief; the
entire voting precinct was tainted with fraud, and it is impossible to purge
that precinct to the extent of the fraud, as it is Impossible to determine it,
and therefore the whole precinct must be thrown out, as the testimony
shows that Mr. Nichols was depositing ballots from an hour to an hour and
a half. (R. 50, Overmyer).
V.
Carmel Township, Katon County.
In the township of Carmel about two o'clock in the afternoon the election
board opened the ballot box and poured the ballots out upon the table and
reclosed the ballot box and went on receiving ballots and putting them Into
the ballot box, and as to the ballots turned out on the table, he board turned
them over to Cortez Cushing and Mr. Clements, who proceeded to count the
ballots in the same room wheie the election was being held, while the elec-
tion board went ahead and conducted the election. (R. 105-6-7).
Gordon Griffin testified that he was Supervisor of the township of Carmel,
and chairman of the election board (R. 283), and when the board ordered that
two o'clock count, he knew that was not the law, yet Griffin unlocked the box.
emptied the box on the table, put the box on the fioor. locked it again and
commenced voting.
On the face of the returns, Smith had 137 votes, Carney S2.
ARGUMENT.
The election laws of Michigan, specifically fixing the time when the count
shall be made is found in
Mich. Compiled Laws of 1897, Sec. 3646, being
Paragraph 173 of Exhibit 67,
which Is In part:
"Immediately on closing the polls, the board shall proceed to canvass
the votes. Such canvass shall be public and shall commence by a
comparison of the poll lifts and a correction of any mistakes that may
be found therein until they shall be found or made to agree. The
box shall then be oi)ened and the whole number of ballots counted.
If the ballots shall be in excess of the number of electors voting ac-
cording to the poll lists they shall be replaced in the box and one of
the inspectors shall publicly draw out and destroy so many ballots
13
therefrom unopened as shall be equal to such excess. They shall first
select and count the straight tickets and give the number to each
(andldate voted for on the straipln ticket. All other tickets shall be
laid on the table and counted in regular order in such subdivisions
thereof as may be convenient for a prompt and careful determination
of the result of such election. * • *."
The action of (he township board in Carmel townshij) in oi)ening the ballot
box at two o'clock in the afternoon, and emptying the ballots on the table,
and permitting the ballots to be counted by men not members of the board,
was a violation of each and every provision of the statute. This action on
the part of the board violated every provision for the secrecy and integrity
of the ballot of the voter.
Mich. Compiled Laws of 1897, Sec. 3618, being
Paragraph 145 of Exhibit 67,
provides:
•<i
'Before opening the poll, the ballot box shall be examined, and the
contents, if any, removed therefrom; it shall then be locked, and the
key thereof delivered to one of the inspectors, to be designated by the
board. The said box •hall not be opened during the election except
aa provided by law in case of adjournments."
Therefore, the action of the board in permitting this count was in direct
violation of the above mannatory provision. The board had not adjourned
at the time the count was being made, and even if they had, the direct and
mandatory provisions of the statutes governing adjournments were not com-
plied with. There is no provision of the election laws permitting an adjourn-
ment except in rural communities. The only section covering this proposi-
tion is
Mich. Compiled Laws of 1897, Sec. 3616, being
Paragraph 143 of Exhibit 67,
which is as follows:
"On the day of election the polls thereof shall be open at seven
o'clock in the forenoon, or as soon thereafter as may be, and shall be
continued open until five o'clock in the afternoon of the same day and
no longer; but In townships the board may adjourn the polls at twelve
o'clock, noon, for one hour, in its discretion. The inspectors shall
cause proclamation to be made upon opening the polls and cause pro-
clamation to be made of the closing of the polls, one hour, thirty min-
unts and fifteen minutes, respectively, before closing thereof. Pro-
vided, That in counties where all the voting precincts in the county
use voting machines, the polls in such counties shall be continued open
until seven p. m. of the same day and no longer."
The board in this case did not make any adjournment within the provis-
ions of the above section, but even if they did, they could not take out the
ballots and count them or permit anyone to remove ballots, handle the same
or count them until the polls were finally closed for the day. These provis-
ions are specifically set forth in
Michigan Compiled I^ws of 1897, Sec. 3637,
being Paragraph 164 of Exhibit 67,
which is as follows.
"At each adjournment of the poll, the clerks shall, in the presence of
the inspectors, compare their respective poll lists, compute and set
down the number of votes and in case the same do not agree shall,
under the direction of the board, correct all mistakes that may be dis-
covered, until such poll lists shall be made in all respects to corre-
spond."
And
And
14
Mich. Compiled Laws of 1897. Sec. 3638. being
Paragraph 165 of Exhibit 67,
"The ballot box shall then Le opened and the poll list placed therein,
the box locked, and at least five minutes before the removal of the same
a piece of leather or canvas ro placed as to extend from the opening in
the lid of said ballot box to the key hole in such a manner as to com-
pletely cover both such holes, shall be placed thereon, and the same
securely fastened thereon with sealing wax stamped with the official
election seal of such township or ward, such piece of leather or canvas
and the sealing wax to be so arranged as to render it impossible to
open either of said holes without breaking said seal. The key shall
then be delivered lo one of the inspectors, the box to another, and the
seal to another. Such box shall not be opened nor the seal broken until
the box has been publicly exposed at least five minutes before the reop-
ening of the poll.'*
Mich. Compiled Laws of 1897, Sec. 3639, behig
Paragraph 166 of Exhibit 67.
"The inspector having the key shall keep it in his possession, and
deliver it again to the board at the next opening of the poll, and the
inspector having the box shall carefully keep it without opening or suf-
fering It to be opened, or the seal thereof to be broken or removed,
and shall publicly deliver it in that state to the board of inspectors at
the next opening of the poll, when the seal shall be broken and the
box opened, the poll lists taken out, and the box again locked.*'
If such a method of counting is sanctioned, the provisions of the election
law for the securing of the secrecy of the ballot, and the handling of the
ballots only by officials of the election board, and the checking of mistakes
or errors, are rendered absolutely useless. These provisions must be manda-
tory.
By analagous reasoning and application, every case cited In this brief would
be unquestioned authority for holding these steps mandatory.
Our statute for the protection of the secrecy of the ballot is so stringent
that by
Mich. Compiled Laws of 1897, Sec. 3636, being
Paragraph 163 of Exhibit 67,
if any one elector shall show his ballot, or any part thereof, to any person
other than one lawfully assisting him in the preparation thereof, after the
same shall have been marked, so as to disclose any part of the face threof,
such ballot shall not be received or deposited in the ballot box.
And yet, in this case, a boxful of ballots was emptied out on the table.
exposed to two men not members of the board, and the point where they were
so counted was so situated that all electors voting after they began counting
had to pass within four feet of wheie they were and directly by them and in
such a way that every one of them could have seen some number of said
ballots and how they were voted.
In this precinct the original returns gave Mr. Smith 137 votes
In this precinct the original returns gave Mr. Carney 82 votes
Deduct from the total vote of Smith 137 votes
Deduct from the total vote of Carney 82 votes
Net gain to Carney 55 votes.
V.
WInsor Township, Eaton County.
The election law of Michigan providos that the ballots, when deposited in
the ballot box after being counted, shall be preserved therein until the next
election at which the boxes are to be used.
The township board of Winsor township certified the count of ballots after
the election of November 5, 1912, and there was nothing to Indicate a condi-
tion which later developed.
15
Under the laws of Michigan for the year 1913, there was a general election
held on the first Monday In April, that being the first election following the
general election of November 5, 1912.
When the ballot box of Winsor towniiliip was opened, there were found
therein the ballots, and the same ballots which had been voted and counted
at the election of November 5, 1912. The ballots did not have any initials
upon them, as required by the election laws of Michigan. The fact that none
of those ballots were initialed had been kept a secret, and the condition of
the ballots was not discovered, so far as the contestant had been able to
determine, until the ballot box was opened on the 7th day of April, 1913.
The contestant first learned of this condition of the ballots on April 14th,
1913. On April 18th he made a personal investigation by going to the town-
ship of Winsor and getting information as to facts. On the 22nd day of
April, 1913, he drew, signed and swore to a petition for an amendment to
his notice of contest. A copy of the petition and amendment to notice of
contest was placed in the mail on the same day, viz. the 22nd day of April,
1913, addressed to Horace S. Maynard, attorney for contestee, and a like
copy personally served on John M. C. Smith, the contestee, in Washington,
D. C, on the 24th day of April, 1913. (R, 213).
That due diligence was shown by the contestant in making his amend-
ment, after acquiring knowledge of the facts, is shown in Record 212-213.
The testimony of S. J. Vanderbeck (R. 176-177) shows that he was a mem-
ber of the board' of election inspectors and initialed all the ballots and they
were all initialed above the perforated line. That none of the ballots were
initialed below the perforated line. When the ballots were counted, there
were no initials on any of the ballots.
This testimony is corroborated by W. J. Bakeman (R. 170), Ray Burnett
(R. 174), P. L. Smith (R. 179), who constituted all the members of the elec-
tion board in the township of Winsor, at the November 5, 1912, election.
ARGUMENT.
In this township there can be but one conclusion arrived at, as to what
disposition should be made of the votes there cast.
Mich. Compinel Laws of 1897, Sec. 3632, being
Paragraph 159 of Exhibit 67,
provides:
"At the opening of the polls after the organization of and in the
presence of the board of inspectors, one of the inspectors shall open
the packages of ballots in such a manner as to preserve the seal intact.
He shall then deliver to any one of the inspectors fifty of the ballots,
and shall place the pencils for marking the ballots in the booths. Any
inspector initialing ballots shall at once proceed to write his initials in
Ink or with lead or indelible pencil on the back of the ballot directly
below the perforated line, so that the same shall not be torn off when
the number Is torn off by the inspector, in his ordinary handwriting and
without any distinguishing mark of any kind. As each successive
voter calls for a ballot, one of the inspectors shall deliver to him the
first signed of the fifty ballots, and rk the supply of ballots in the hands
of the inspectors shall decrease, additional ballots shall be signed by an
inspector, so that at least twenty-five ballots so signed shall be at all
times in the hands of the inspector delivering the ballots to the elec-
tors."
The entire controversy in realtion to this township has been thoroughly
covered both as to the initialing and the history of the legislation and the
decisions of the Michigan supreme court upon it.
As to distribution of the ballots,
Mich. Compile dLaws of 1897, Sec. 3640, being
Paragraph 167 of Exhibit 67,
provides:
"No ballot shall be distributed by any person other than one of the
IS
inspectors of election, nor in any place except within the railing of the
voting room, to electors about to vote and no ballot which has not the
initials of a member of the board of election written by such member
on the bacic thereof shall be placed in the ballot box.'
f»
Mich. Conipilf»d T,aws of 1897, Sec. 3646, being
Paragraph 173 of Exhibit 67.
is as follows:
"Immediately on closing the iK)ns, the baord sholl proceed to canvass
the votes. Such canvass shall be public and shall commence by a com-
parison of the poll lists and a correction of any mistakes that may be
found therein until they shall be found or made to agree. The box
shall then be opened and the whole number of ballots counted. If the
ballots shall be in excess of the number of the electors voting accord-
ing to the poll lists they shall be replaced in the box and one of the
inspectors shall publicly draw out and destroy so many ballots there-
from unopened as shall be equal to such excess. They shall first select
and count the straight tickets, and give the number to each candidate
voted for on the straight ticket. All other tickets shall be laid on the
table and counted in regular order in such subdivisions thereof as may
be convenient for a prompt and careful determination of the result of
such election. In the canvass of the votes, any ballot which is not en-
dorsed with the initials of the Inspector as provided in this act, and any
ballot which shall bear any distinguishing maric or mutilation shall be
voidf and shall net be counted, and any ballot, or any part of a ballot,
from which it is Impossible to determine the elector's choice of candi-
dates shall be void as to the candidate or candidates thereby affected;
Provided, however, That all such ballots shall be preserved, marked by
the inspectors "not counted" and kept separate from the others by
being tied or held in one package by a rubber band or otherwise."
We therefore find that the proposition of initialing the ballots is consid-
ered of such vital importance that express provision is made concerning ft;
1. As to the ballot being initialed before the delivery of the ballots to the
inspector, so that he cannot distribute a ballot without these Initials
tipon it;
2. No ballot without the initials shall be placed in the l>ox;
3. After the election is over, if any ballots are found without the initials,
they are absolutely void.
The entire history of the provisions of initialing and the decisions of the
Michigan Supreme Court upon those provisions are so clearly and thoroughly
covered in the case of
People ex rel. Anderson vs. Rinehart, 161 Mich. 585,
that we take the liberty of quoting the case In full.
"Hooker, J. The prosecuting attorney for the county of Cass filed an
information on behalf of Anderson against Rinehart to try the title
of these persons to the office of county clerk in said county; Rinehart
being In possession under a certificate of election.
The case must turn upon. the disposition to be made of the ballots
cast in the township of Calvin, all of which should be excluded or all
counted. If excluded, relator will have a majority of 88 in the county.
If counted, respondent was elected by 137 votes. The alleged defect in
the ballots Is that the initials of the inspector were placed on the per-
forated corners of the ballots, and were all torn off by the inspector
after he received them from the electors and before depositing them in
the box. The statute involved in this case is section 22, Act No. 55,
Pub. Acts 1905:
*Sec. 22. At the opening of the polls, after the organization of, and in
the presence of the board of inspectors, one of the inspectors shall
open the packages of ballots in such a manner as to preserve the seal
intact. He shall then deliver to one of the inspectors, to be designated
by the board, fifty of the ballots, and shall place the pencils for mark-
ing the ballots in the booths. The inspector so designated shall at
once proceed to write his initials in Ink on the lower left hand comer of
17
the back of each of said ballots, but not upon the perforated corner,
In his ordinary handwriting, and without any distinguishing mark of
any kind. As each successive voter calls for a ballot, another one of
the inspectors shall deliver to him ihe first signed of the fifty ballots,
and as the supply of ballots in the hands uf the inspectors shall
decrease, additional ballots shall be signed by the same inspector, so
that at least iwenty-Iive ballots so signed shall be at all times in the
hands of the inspector delivering the ballots to the elector.'
It is contended on behalf of the respondent that the provision regard-
ing initials should be held to be directory, rather than mandatory, and
that a failure to strictly comply with it would not require the exclu-
sion of the informal ballots, and we are cited to the case of Homing vs.
Board of Canvassers of Saginaw Co., 119 Mich. 51 (77 N. W. 446), in
support of the claim. Under the law in force at that time, the poll
clerks were required to write their initials in ink on the upper left-
hand comer of the back of each of the ballots, etc. Another section
required that 'any ballot which is not endorsed with the initials of the
poll clerks as provided in this act shall be' void and shall not be
counted.' We held in that case that the ballots voted (all being en-
dorsed in a different corner) should be counted. This case was de-
cided in December, 1898, under the act of 1891 (Act No. 190. Pub. Acts
1891, I Comp. Laws, Sec. 3612, et seq). Several other provisions of that
act have been held mandatory and informal ballots rejected. Thus in
Attorney General vs. McQuade, 94 Mich. 439 (53 N. W. 944) the non-
compliance with the requirement that the voter must go alone into the
booth and there prepare his ballot concealed from the view of all per-
sons, and fold it so that the face should be concealed, and the initials
exposed to view and non-compliance with the provisions relating to
assistance to illiterate persons in marking their ballots, made the
exclusion of ballots necessary.
In Attomey General vs. May, 99 Mich. 539 (58 N. W. 483. 25 L. R. A.
325) we held the same where assistance was rendered to a voter, who
had not previously taken the statutory oath. In Attorney General vs.
StiUson, 108 Mich. 419 (66 N. W. 388), we held that the vote of an entire
township must be excluded for the reason that an interpreter duly
Bwom was allowed to remain within the railing at a voting precinct,
and to mingle and talk freely with voters after receiving and before
marking their ballots, such voters not having requested the assistance
of an interpreter. Again, in Attorney General vs. Kirby, 120 Mich. 592
(79 N. W. 1009), the vote of a township was excluded because an unof-
ficial person was appointed "instructor" to distribute ballots, who was
allowed access to voters even after they had entered the booth, and
this was held notwithstanding the fact that the parties all aced in good
faith and the absence of proof that anyone was unduly influenced. See,
also, De Gaw vs. Fitzsimmons. 124 Mich. 511 (8:5 X. \V. 282). Subse-
quently, and In 1905, and presumably with the full knowledge of the
Horning case, the legislature amended the act by expressly prohibiting
the use of the perforated corner for initials. In view of these cases,
and the subsequent legislation, we must hold the provision mandatory,
and the vote void.
It is urged that voters should not be disfranchised by the carelessness
or fraud of Inspectors, and we are cited to many cases where courts
have refused to exclude votes for election irregularities. Courts are
always reluctant to deprive electors of their votes, or to do violence
to the expressed will of the public, but these regulations are made in
furtherance of a design to protect electors in the exercise of their
electoral privileges. In the case of McQuade, 8ui)ra, it was said by
Mr. Justice Grant :
«
"These provisions of the law must be held mandatory, or else the
purpose of the law is defeated, and the opportunities for fraud are
increased rather than diminished. If an inspector or other person be
permitted to enter the booths with the voters, the danger is far
greater than under the old system, where there was some opportuni-
ity to see and detect fraud. Under this practice, venal voting could
be readily accomplished. The law is designed to secure absolute
18
secrecy to the elector, and thus prevent all opportunity for corrupt
practices. The law does not permit parties to profit by such frauds,
though they may not have participated in the fraud. The rule laid
down by the text writers is as follows:
" 'When fraud on the part of the officers of election is established,
the poll will not be rejected, unless it shall prove to be impossible
to purge it of the fraud. When the result of a poll, as shown by
the returns, is false and fraudulent, and it is impossible to ascer-
tain the actual vote from the other evidence in the case, the vote
of such poll must be wholly rejected.' Paine on Elections. Sec.
499; McCrary on Elections, Sec. 190, 192.
"This rule is founded in good sense and is sustained by the au-
thorities." .
We said in the case of Stillson, supra:
"We have frequently held that electors are not to be deprived
of the result of their votes by the mere mistakes of election officers,
when such mistakes do not indicate that the result has been
changed thereby, and many things may occur that can be treated as
irregularities. See People vs. Avery, 102 Mich. 572 (61 N. W. 4).
and authorities cited. On the other hand, where fraud appears
upon the part of the inspectors, the voter must sometimes be de-
prived of his vote. Attorney General vs. McQuade, 94 Mich. 439
(53 N. W. 944). And this must always be the case where manda*
tory provisions are disregarded, if the result would be thereby
changed."
Continuing upon the subject of the constitutionality of the law which
is attacked in this case as it was there, we said much in the last men-
tioned case that can as well be read there as to repeat it here. We
held these laws within the powers expressly conferred by the consti-
tution, although they might require some sacrifice by the individual for
the public good. The statute expressly provides that such ballots as
these shall be neither placed in the box nor counted, and we have no
alternative but to apply the law.
The judgment of the circuit court is reversed and a judgment of
ouster entered against the respondent, and in favor of the relator.
Ostrander, Moore, McAlvay, and Brooke, J .J., concurred.'
*t
Under the above statutory provisions and the decisions quoted, the entire
vote of this precinct must be rejected.
The original vote as shown by the returns was, for Smith 174 votes
The original vote as shown by the returns was, for Carney. 92 votes
Deduct from the total vote for Smith 174 votes
Deduct from the total vote for Carney 92 votes
Net gain for Carney 82 votes.
VII.
2nd Precinct, 2nd Ward, Battle Creek, Calhoun Coimty.
The board of election inspectors' returns gave on their face to John M. C.
Smith 31 votes and to Claude S. Carney 23 votes. No petition was filed
before the board of county canvassers for a recount of any kind. (Testimony
of George W. Schneider, R. 138.)
County Clerk, Ray Hart, claimed before the board of county canvassers
that the returns from this precinct were not correct. The board on their own
motion caused the ballot boxes to be brought before them. No recount of any
kind was attempted. Ray E. Hart, County Ceirk, under the direction of the
canvassing board, changed the returns by adding to the vote of John M. C.
Smith 66 votes, so that his total vote then read 97, and by adding to the vote
of Claude S. Carney 3£ votes so that the total vote of Claude S. Carney read
61. Prom the figures that were on the back of the rolls of ballots in the box
the board of county canvassers caused the changes to be made. (R. 139).
This occurred on the 19th day of November.
Schneider further testified there was no data in the box unless we use the
figures that were on the rolls of tickets which we did use in correcting the
retuurns. (R. 145-136).
19
When the board discovered that the Michigan statutes forbade the removal
of any tickets from the ballot box by the board of county canvassers except
upon a petition for a recount, at the roquest of Congressman John M. C.
Smith, the board of county canvassers caused the ballot box to be brought
before them a second time. John M. C. Smith was present, John C. Davis,
the Republican Congressional Committeeman from Hat tie Creek, George Hug-
gett, an attorney for John M. C. Smith from Charlotte, and the City Clerk, a
Republican of the City of Hatlle Creek. (R. 141), Claude S. Carney, the Demo-
cratic candidate for Congress was not present. No notice of any kind was
given to Mr. Carney that the ballot box would be produced before the board.
(R. 141).
"On this second meeting we found a blotter that was in the box. It
was not signed by anybody. There was no tally sheet or statement
book found in the box. We canvassed the vote by the figures found
upon the blotter." (R. 143).
"This blotter was a piece of paper perhaps ten inches square which
one of the election inspectors claimed he made while they were
counting the ballots. We did not find this blotter or piece of paper on
the 13th when we opened the ballot box. The board of county can-
vassers made their returns according to the figures upon the blotter,
97 for John M. C. Smith, and 61 for Claude S. Carney, and not according
to the figures which were originally returned and filed with the county
clerk and the Judge of Probate by the board of election inspectors of
said precinct.'* (R. 143 — Schneider Chairman of the Board).
The ballot box in question in said second ward, second precinct of the City
of Battle Creek was brought before the Notary taking testimony in this con-
test. (R. 447).
Testimony of Ray Hart, County Clerk:
"The box bore evidence of having been roughly handled for some
purpose. The lid was Jambed down to quite an extent so that the lid
could be raised enough to place papers in the box. (R. 450). The
entire lid is crushed down. That one edge which was ridged is bent
down. I should say that It Is by means of blows if my opinion Is worth
anything. It could be done in various ways probably. The lid could be
raised about one-half inch without disturbing the seal in front. The
piece of paper that the inspectors used the second time was a single
sheet of paper. I think it could be put into the ballot box without un-
locking or breaking the seal." (R. 451, Ray E. Hart. County Clerk.
Calhoun County.)
This paper from which they corrected their returns was not signed by any
member of the board.
ARGUMRNT.
After the votes are counted by the board of election inspectors, the ballots
are to be disposed of as follows:
Mich. Compiled Laws of 1897, Sec. 3647, being
Paragraph 174 of Exhibit 67.
"After the ballots are counted they shall, together with one tally-
sheet, be placed in the ballot box which shall be securely sealed in such
a manner that it cannot be opened without breaking such seal. The
ballot box shall then be placed in charge of the township or city clerk,
but the keys of said ballot box shall be held by the chairman of the
board and the election seal in the hands of one of the other inspectors
of election."
The result is to be declared as follows.
3«
Mick Compiled Laws of 1897. Sec. 364S. being
Paragraph 175 of Exhibit 67,
"Immediately after the count of the tickets or ballots has been com-
pleted, the result aud the number of votes received by each candidate
or person on the ticket Fhall be publicly declared by one of the inspec-
tors. The inspectors shall then prepare a statement of the result in
duplicate HhowiuK the whole number of votOH east for each office, the
names of the persons for whom such votes were ^iven and the number
each person received, in which statements the whole number of votes
Kiven for each office, and the number given for each person shall be
written out in words at length. Such duplicate statements, when cer-
tified by the inspectors and duly signed shall be delivered to the town-
ship or city clerk, and shall by said clerk be, within twenty-four hours
after the result is declared, delivered in person or immediately for-
warded by registered mail, one copy to the board of county canvassers
in care of the judge or register of probate, and the other, together with
one of the original tally-sheets, to the county clerk, which said atate-
ments and tally-sheets shall be placed in separate envelopes and sealed
by said inspectors before their delivery to the township or city clerk."
The duties of the board of county canvassers are set forth in
Mich. Compiled Laws of 1897, Sec. 3665, being
Paragraph 239 of Exhibit 67.
**The said board shall then proceed without delay to canvaaa the
return of votes cast for all candidates for office voted for and all other
questions voted on at said election, according to the returns filed in the
office of the county clerk by the several boards of election inspectors of
the various voting precincts in the county, and the returns or tally
sheets filed with the board of canvassers by the central counting board
in counties where a central counting board is provided for counting the
ballots cast In said county or any part thereof in lieu of their being
counted by the eleclton inspectors of the voting districts. If it shall
bo found upon the convening of said board of canvassers that the re-
turns from any of the boards of election inspectors of the several
election districts, or the returns of such central counting board are
missing, incomplete, or incorrect, or for any other reason it is found
necessary, then said board of county canvassers shall have power to
adjourn from day to day until said returns shall have been procured or
corrected. Said board of canvassers are hereby empowered to summon
the person or persons having the boxes containing the ballots cast at
said election and the keys and seals of said l>oxes, or having such
returns or the poll books or tally sheets used and made at such elec-
tions, to bring said boxes, seals, keys, returns, poll books and tally
sheets before said board and said board of canvassers are authorized
to open said boxes and take therefrom Uny books or papers bearing
upon the count and return of the election inspectors of such election
districts or the returns of such central counting board, but they shall
not remove or mark the ballots therein. Said board of canvassers may
summon such election inspectors, or central counting board, before
them, and require them to make correct returns in case, in its judg-
ment, after examining such returns, i)oll books or tally sheets, the
returns already made are incorrect or incomplete, and they shall
canvass the votes from the corrected returns. When the examination
of such papers is completed the same shall be returned to the ballot
boxes or delivered to the persons entltle<l by law to the same, and the
boxes shall be locked and sealed and delivered to the legal custodians
thereof. When said canvass shall have been finished, the said board
of county canvassers shall pre])are a statement setting forth their
findings in the premises, and giving in detail the number of ballots
cast for each candidate and the result of the votes cast on all
other questions voted on at said election. They shall certify
thereto, under their hands, and the seal of the circuit court of the
county. It shall also be the duty of said board to declare the result
21
of the election for county officers and members of the legislature,
when the county alone constitutes one or more senatorial or represen-
tative districts, and to publish said result and a statement of votes
oast, within thirty dayH after said oUntion is seld, in at least two news-
papers printed and circulating; in said county."
The action of the. hoard of county canvassers in changing the final returns
because of a paper produced by one Christian is in absolute violation of the
provisions of this law.lt was not a paper required by the statute; it was not
kept by bim in accordance with the provisions of the statute; it was not in
the box when the county board of canvassers first opened the box, and was
only found by them in the box at their second meeting, on the 19th of Novem-
ber, after the box had been so tampered with that Mr. Hart, the County Clerk,
a witness for the contestee, admitted that the lid was jambed down to quite
an extent, so that the lid could be raised enough to place papers in the box.
Ab to the preparation of that paper and when it was done, there is absolutely
no legal testimony. The examination of the witness Christian, who pro-
duced the paper, (R. 465-466) and of Henry Christian <R. 460-461) impresse?
one with the firm belief that the paper was not prepared at the time, in the
manner, nor for the purpose as he testified.
We do not overlook the fact that the board of election inspectors of this
precinct went through the formality of signing a second return, but we con-
tend this act on the part of the board of inspectors was a mere nullity, and
added nothing to the legality of the so-called second return.
The first return was regular upon its face. There was no clerical error
patent upon the face of the return. The figures as originally returned by
the board of election inspectors were arbitrarily raised in each instance.
The conduct of the board of election inspectors and of the board of county
canvassers, making this second or substituted return, was a mere nullity and
was so decided in the case of
Roemer vs. Canvassers, 90 Mich. 27.
In the case cited the board of canvassers convened on the 7th of Novem-
ber, for the purpose of canvassing the returns. Canvasser Erhard, who was
also one of the inspectors of election for the precinct in question, represented
to the board that a mistake had been made by the inspectors in stating the
number of votes cast for relator and Dciciel respectively, and produced a
so-called corrected return, signed by the inspectors. The new return, it
appears was prepared nearly a week after the first return had been filed with
the city clerk.
The board of canvassers proceeded to appoint a committee to examine the
tally sheets of the district in question, to be found in the boxes in the cus-
tody of the police department, with instructions to report their findings to
the board. The committee proceeded to investigate and made a report,
stating:
((1
*We believe the inspectors discovered an error, but we believe the
canvassing board is powerless to receive oral statements in relation
thereto."
The report further stated that as a result of their investigation, upon open-
ing the ballot box and tabulating, the vote cast, for relaor was 352, and for
Diemel 168. This report the board of canvassers refused to adopt, and pro-
ceeded to canvass the vote as reported in the second or substituted return.
The tally sheets had been produced, and it was claimed that they show the
substantial accuracy of the 2nd return.
Among other things, the court said.
"The method adopted was conrusing, well calculated to result in
mistakes similar to those claimed to be shown in this case and not in
harmony with the method prescribed by the statute. We are not able
to say, from the tally sheet itself, that the second return is correct.
It does appear, however, to indicate that there was an error in the orig-
inal returns. We are all satisfied, however, that the canvassing board
had no right to accept or act upon the second return of the Inspectors.
That such return was a nullity. When the inspectors had completed
their count, executed and delivered the returns, their legal powers
22
tnded, and atay attempt od the t>&rt of the fnst>ector« to change or
modify such original returns in any piirticular, involving any other than
a mere clerical duty» wa ; clearly beyond their powers.*'
So it seems to be well settled that the action of the board of county can-
vassers in accepting this second or substituted return, in the manner and
method that they did, was illegal and directly contrary to the case above
cited, and the circumstances under which this condition was brought about
was open to suspicion, to say the least. The change was made at the per-
sonal request of John M. C. Smith, the contestee, the Republican Congres-
sional Committeeman, John C. Davis, of Battle Creek, George Huggett, an
attorney from Charlotte, representing the contestee, (R. 140) the Republican
City Clerk of the City of Battle Creek; and surrounded by these influences,
and in the presence of these g^entlemen, and without giving the contestant,
Claude C. Carney, any notice of the contemplated proceedings, or any oppor-
tunity to be present, either in person or by attorney, the ballot boxes were
cTpened, the substituted return made, from a piece of paper which was un-
signed, was no part of the returns, was not in the ballot box on November 13,
when the boxes were first before the board of county canvassers, and we sub-
mit that the whole proceeding is stamped with suspicion from beginning to
end» and surely in the face of the decision above cited from the Michigan
supreme court, in the case of Roemer vs. Canvassers, no court, no tribunal
and no committee, with the facts before it, could do otherwise than to set
aside this unwarranted proceeding and to cause the vote to be canvassed ac-
cording to the original return.
The primary law of Michigan requires and provides the same safeguards as
the general election laws, and an attempt on the part of the board of can-
vaasers to take the testimony of the primary election officials as to the condi-
tion of the books and to compare the poll list with the enrollment was wholly
unauhorized.
Ritze vs. Iron County Canvassers, 172 Mich. 423.
The substituted returns in this precinct gave Mr. Smith 97 votes
The substituted returns in this precinct gave Mr. Carney 61 votes
The original return gave John M. C. Smith 31 votes
The original return gave to Claude S. Carney 23 votes
Deduct from Smith 66 votes.
Deduct from Carney 38 votes.
Net gain to Carney 28 votes.
GROUP II.
This group includes all districts or voting precincts where instructions
were given as to voting, or ballots were marked without the oath being admin-
istered as required by statute to the voter, and excludes all voting precincts
specifically covered above.
Generally speaking, this group includes all the districts named in contest-
ants petition, and not individually treated as above.
The same ground existed in a number of the voting preclnsts disposed of
above, but in this group attention is called only to those which are generally
treated in the record, and where no other violation of the election laws has
been proven.
ARGUMENT.
The returns for the precincts in this group cannot be as definitely disposed
of by the decisions of the Michigan supreme court as have been the districts
heretofore treated separately. The question was squarely raised in the case
of
Attorney General ex rel. Raynolds vs. May, 99 Mich. 668.
But the precincts in that case which were discussed were really covered
as dictum because the results of the precincts as claimed by the court were
disposed of by the verdict of the Jury inferentially, as the number of ballots
in dispute would not have affected the result as found in answer to certain
specific questions left to the jury.
In the dissenting opinion of Justice McGrath (who was a Democratic mem-
23
ber of the court) a strong argument is presented for holding the provisions
merely directory, he stating.
'The board, officers of the law, charged with control of the place,
and with the instructions and direction of the voter, participated in the
work. Supervisors and marshals, there by federal authority, charged
with the duty of supervision, participated in the work. Each and every
one of these officers was there commissioned to protect, instruct and
direct the voter. No challenge was made by any person. Relator's
specification alleges that this was done with the approval of the chair-
man of the board of election inspectors. To these officers, and to these
officers only, did voters expose (?) their ballots. Is it not monstrous
to say that, under these circumstances, the voter and this entire pre-
cinct, composed of 1,156 qualified electors, shall be disfranchised? The
law should not be so construed as to make the machinery of election
a snare to entrap the unssupecting voter.
It may be urged that the voter is charged with knowledge of the
law; but is he charged with knowledge of the personnel of the inspec-
tors, or of those designated to assist him? Inspectors of election are
not either uniformed or badged. Is each voter bound to suspect men
there by lEiuthority, acting in the presence of the power that creates the
actors, and to Inquire by what authority? Of whom should the voter
inquire, if not of the very men who were engaged in and directing this
work? These men, whether inspectors, supervisors or marshals, were
there acting in the capacity of instructors or assistants, in the presence
of the board of inspectors, the very power under the law that should
designate and create assistance or instructors, and were recognized by
all as having authority. Were they not, under all the authorities, de
facto assistants and instructors? Is an elector to be disfranchised be-
cause one of these de facto officers looked upon his ballot? If respond-
ent be ousted from his office, who shall say that no witnesses sworn by
him while acting as clerk of the circuit court for the county of Wayne
can be prosecuted for perjury, or that every sebpoena or summons
signed by him is a nullity, because he was not legally elected to the
office of county clerk? Suppose that no assistant be actually desig-
nated by the board, but that one ?hould act ofr the day in the pres-
ence of the board; would the absence of an express designation dis-
franchise the voter? McCrary, Elect, Sees. 105, 214, 216."
pp. 568-9.
The court, however, in the prevailing opinion, did not adopt that language
and did not apply it, but strongly inferred that the number of votes so ille-
gally instructed would not, under the facts shown, necessarily taint the vote
of the whole district, and it would not taint the whole ballot if the jury were
able to determine the correct ballot, as under 'Such circumstances it would
not destroy the presumption of the correctness of the other ballots. But, as
said, this question, as it relates to the present case, is of but little moment,
for the jury were able to determine the number of illegal votes put into the
boxes in the various districts. And the court, in the same case in the pre-
vailing opinion, on pages 555-556, did adopt the following rule:
"We now come to the other portion of the charge, where, in sub-
stance, the jury were directed that they should take the illegal votes
from the total vote proportionately, according to the entire vote re-
turned for each candidate in that district. In this we think the court,
under well settled rules, was entirely correct. It is a fair way to
arrive at results. The rule is based uj)on the proposition that the
illegal votes have gone into the boxes without the fault of either can-
didate. If these illegal votes can be separated from the legal ones, so
that the number is substantially ascertained, then the poll Is too large
by exactly that number, and they must be cast out."
If this rule is adopted in the settlement of this contest, then the result of
applying the rule as to the actual illegal votes of that nature shown in the
entire record will not affect the standing of either party to this conest.
24
Should the Committee and House of Representatives follow the statutes and
decisions of the Supreme Court of Michigan in this contest?
We are aware that the House of Representatives is the sole judge of the
election and qualification of its members, however, in the great number of
contests which have been made before the House of Representatives, certain
definite and fixed rules of proceeding and rules of interprtation of election
proceedings have been so uniformly adopted that we feel warranted in saying
that the procedure of the Committee and House in this particular case
should be governed by precedents already established.
We are fully warranted in taking as a precedent a Michigan contest made
by a Michigan £>emocrat against a Michigan Republican, in which the election
laws of Michigan, as construed by the Michigan supreme court, were accepted
by the House as the governing principle of that contest.
In the contest of Belknap vs. Richardson, in the 43rd Congress, a digest of
which is reported in
Howeirs Digest of Contested Election Cases from 1789 to 1901,
the question arose in the contest over ballots containing distinguishing marks
prohibited by the statute and votes cast by inmates of the Soldiers* Home,
located in the district. The supreme court had passed on both of these ques-
tions and the Committee followed the rulings of the court on all the points
of law.
Same case reported in
2 Hinds' Precedents of the House of Representatives, p. 618, Sec.
1042.
RECAPITULATION OF VOTES.
25
Smith
Gain
Loss
Carney
Gain
Loss
Original Total Vote
14609
14482
Climax Township.
Kalamazoo County.
Original vote— For Smith, ga
For Carney 82
Corrected vote
by consent For Smith 90
For Carney 100
Gain For Smith 7
7
For Carney 18
18
3rd Ward, City of Charlotte
Eaton County.
Original Vote— -For Smith 214
f
For Carney 116
All should be thrown out
Loss For Smith 214
214
For Carney 116
•
116
Sun field, Eaton County.
Original Vote— For Smith 174
For Carney 104
All should be rejected.
Loss For Smith 174
174
For Carney 104
104
2nd Ward. City of Charlotte,
Eaton County
Original Vote— For Smith 161
For Carney 107
All should be rejected.
"
Loss For Smith 161
161
For Carney 107
107
Carmel Township, Eaton County,
Original Vote— For Smith 137
For Carney 82
All should be rejected
Loss For Smith 137
137
For Carney 82
82
Winsor Township, Eaton County
Original Vote— For Smith 174
For Carney 92
All should be thrown out.
Loss For Smith 171
174
For Carney 9'.!
92
2nd Precinct, 2nd Ward, City
of Battle Creek, Calhoun County
1st return For Smith 31
For Carney 23
Changed returns For Smith 97
For Carney 61
As last figures were included in
in face of returns there should
be deducted
From Smith 66
66
From Carney 38
<
926
18
38
539
7
18
Deduct
919
919
521
521
13690
13961
Total corrected vote for Carney 13961
Total corrected vote for Smith 13690
Pulrality for Carney 271
26
This contest therefore stands before the House and this Committee, as fot
lows:
(a). The direct and specific violation of mandatory proTisions of the elec-
tion laws of Michigan, sufficient, when the votes so effected are de-
ducted, to five to contestant, Claude S. Carney, the majority of the
legal votes cast at said election.
(b). We have shown that the provisions of the election laws, upon which
we rely to change the result of the legal votes cast, have teen ex-
pressly construed by the supreme court of Michigan favorable to our
contention here.
(c). That in a contest before the House of Representatives of the Uftited
States, in a Michigan contest, the precedeat has been established for
the House to follow the statutes of Michigan and the roles laid down
by the Michigan supreme court interpreting thoee statutes.
I. We therefore submit that following the statutes, supreme court 4eeia-
ions and precedents set forth in a, b, and c, John M. C. Smith is not entitled
to a seat in the present House of Represenatives, based upon the election of
November 5th, 1912.
II. But that Claude S. Carney is entitled to a seat In tibe House of Repre-
sentatives, based upon the election of November 5th, 1912.
Dated August 25th, 1913.
CLAUIW S. CARNEY,
Contestant in Pro Per.
EDWARD C. SHIELDS,
JOHN W. ADAMS,
Attorneys.
J
\.
\J
c4.
CONTESTED ELECTION CASE
OP
CLAUDE S. CARNEY vs. JOHN M. C. SMITH
FBOM THE
THIRD CONGREJSSIONAL DISTRICT OF MICHIGAN.
BRIEF FOR CONTESTEE.
PRELIMINARY STATEMENT.
In replying to Contestant's brief we shall endeavor to avoid statements
of a personal character, as much as is possible, and still do justice to our
client's case, believing that two men aspiring to so high a position should
carry on this controversy in such a dignified manner as is in harmony with
the exalted desire they both have to represent this large and aMost dis-
tinguished district In Congress.
Contestant has made statements in his brief which are surprisingly
inaccurate, from our viewpoint, and has made charges against Contestee and
even his attorneys, which might Jus ify sharp rejoinder, or even angry
retort; but we have long since learned that assertion is not argument, and
that a mere statement that certain condi ions exist do not establish such
facts. We have no other ambition in this brief than to make such substan-
tial and honest claims and arguments as are warran ed by the facts dis-
closed by the Record, and Justified by rules of law and precedent; and
should we grow animated and earnest in such argument, it will be because
we feel that we are absolutely right in our contention, to the effect, that to
unseat Contestee would be an act of positive injustice, for reasons which we
will respectfully assign as we proceed; and if we chaUenge the accuracy of
Contestant's statements, it should not be construed as a claim by us that he
has purposely misstated, but only a contention on our part that our view,
though contrary to his, is correct.
We say this because we cannot hardly bring ourselves to believe that
Contestant, though apparently very anxious to win this contest, would inten-
tionally try to mislead this committee or the house. It is to the Record to
which we will always appeal to show that we are right and he is wrong on
the various points of difference arising between us.
Contestant, by this contest is asking to have done for him what the
voters of the Third Congressional District of Michigan failed to do at the
election in November, 1912, viz., give him a seat in the National Congress.
We do not make this statement offensively, but make it because .we believe
that when this Record is examined by those whose duty it will be to examine
it, the impression will. grow stronger and stronger, that the statement with
which we began this paragraph is substantially, if not absolutely, accurate.
We hasten to say, however, ihat though the political party with which
IJ Contestant is connected, has a large majority in this Congress, and if par-
tisanship were to reign and control in the decision of this contest, it would
t- be idle for Contestee to spend his Mme and money in defending his seat, yet
<: we firmly believe that the sentiment of partisanship wi'l cut absolutely no
figure in determining the merits of this contest. In other words we have
a strong and abiding fai h not only in the ability, but in the rectitude of the
men who will sit In judgment on this matter. Men who have been honored
by the various communities from which they came, by an election to Con-
568301
•'
gress will be fair enough, Just enough and great enough to decide this con-
troversy on its absolute meri s; will so far comprehend and appreciate their
solemn duty In a matter of this character, as to forget while passing upon
the merits, that they are of the same political party as Con.estant; will
forget that any rivalry or competition exists between political parties, and
will render a decision here which will be right and jus., irrespective of
whether a Democrat or a Republican shall suffer from such decision.
To state it in a few words, we believe that no one who will be called
upon to pass upon this contest, will have any other desire, any other ambi-
tion, than to seat the man who was honestly and actually elected by the
voters of this district; seat the man who actually received the most votes
honestly cast and honestly counted.
Having said ;his much as to our belief In the fair treatment which Con-
testee will receive from the hands of his political opponents, we now make
this observation that when this case is fully and fairly examined. Contestant
will be sorely disappointed, if he believes that the fact of his parry being in
the majority in Congress, will aid him one particle in securing the seat
which Contestee now holds; for the time and the day have gone by, if it
ever was, when blind partisanship rules in maters of this character; the
,time has gone by, if it ever existed, when the mere "counting of noses" set-
tles contested election cases in the National Congress. We expect to have
Just as fair trea ment in the consideration of this case, and we expect the
final action will be based upon Just as high and dignified grounds, as though
it were a lawsuit, where honorable men acting under the pressure and
restraint of an oath, render an honest and Just verdict.
We have wondered whether Contestant may not be relying somewhat
upon party partiality in this matter, owing to an incident of which we will
now speak. The Record shows that Contestant has two at orneys. viz.,
Hon. John W. Adams of Kalamazoo, Michigan, and Hon. E. C. Shields, of
Howell, Michigan. For some reason not made plainly apparent, Mr. Shields
is nominally an at'orney here, but actually has taken no part in this case
lio far as we have seen. He was not present at any of the hearings, though
frequent l^earings were held in taking this testimony, covering all five of
the counties of this Congressional District. Contestant admits this. (R..
214.)
Contestant is himself an able attorney, and he certainly has an able
assistant in the person of Hon. John W. Adams; and we think we may say
without indelicacy that the Third Congressional District contains some other
most excellent lawyers who would have been pleased to assist Con'estant,
yet for some reason he has seen fit to associate (in name) Hon. E. C.
Shields, with him in this case, whose residence is outside.
Can it be possible, that Mr. Shields has been secured (in name) because
of his being chairman of the Democratic State Central Committee? Under-
stand, we concede Mr. Shields is a good lawyer, and that Conte^^tant had a
perfect right to associate him, but having connected his name with the case
we will simply observe that Contestant could have absolved himself from
this suspicion by simply having Mr. Shields actually assist. As it is, we
think we have the right to suggest the query as to whether or not Mr.
Shields' connection wi h this case is not partially at least, for the purpose
of making what might be called a party impression — to show the Elections
Committee and the House that he. Contestant, had the backing of the high-
est officers in his party organization in the state of Michigan.
Understand now. we do not make this as a charge and we sincerely
hope it is not true that Contestant has associated Mr. Shields with him for
the purposes hinted at; we hope it is not true that Contestant expects that
Mr. Shields' party influence is to be Interposed in his behalf before this
committee and before the House; but we submit that we have a right to call
attention to this extraordinary situation, viz., where one attorney of record
has in no wise shown any active participation in the Contestant's case, but
who happens to be as stated before, a high officer In the Democratic organ-
ization of Michigan.
True, Contestant says that he has consulted with Mr. Shields, but in
all the wearisome days of Uking this large volume of testimony Mr. Shields
has taken no part whatever.
3
Contesiant complains in his brief that Michigan and the Third Con-
gressional District is so strongly Republican that Democrats have not been
successful in elections; comp.ains that Democrats must receive their bal-
lots irom Republican hands and that the boards of inspectors and canvassers
are made up largely of Republicans.
Ihe conditions which have existed in Michigan in the last fifteen years
are no diherent in the main than has existed in nearly all of the states in
the Union north of what is cahed the Mason and Dixon line. For some rea-
son the people have -adhered to the Republican party throughout the north-
ern states generally during that period, we presume tor tne reasou that they
were satisfied with existing conditions and satisfied with the mode and
manner in which* the government was carried on by that party; but the
people of Michigan and the Third Congressional District, and the people in
other states have had no hesitation to rebuke the party in power, if they
thought it needed rebuking and promptly changed such majorities when
election came around.
Somethin over twenty years ago Michigan had a Democratic legislature
which redistricted congressional districts of the state. It is no secret, but
a matter of history, that our Democratic friends did at that time what they
called a gerrymander — that is, they intended to make certain districts which
were already Republic%in, very strongly Republican, and other districts
which were already Democratic, very strongly Democratic; in other words,
(we do not speak of it disrespectfully) the Democrats intended to so district
the state that they would get some representation in the National Congress.
The Third District was intended to be made strongly Republican, while
the Second District was intended to be made strongly Democratic; but as
an illustration of how politicians "appoint ' and the voters "disappoint*' soon
after this, and at the election of 189G we beheld the anomalous situation
that the Third District had elected a Democrat (Congressman Todd) and the
Second District had elected a Republican (General Spaulding). We speak
of this to show that the voters of Michigan are not so hide-bound in party
politics but what they can break away from party ties to vote as they think.
We have now a most excellent Democratic governor in the State of
Michigan, who carried the election by a large majority in November, 1912.
It is true that the Third Congressional District has not elected a Demo-
cratic congresFman in seventeen years, but that is true in many congres-
sional districts of Michip^an and of the northern spates generally, during
that time. The Republican party has been overwhelmingly in the xscend-
ency until last fall, when the people split up in factions and broke down,
pretty generally in the United States, the powerful reign of the Republican
party.
Now as a matter of fact in this district the Pontes tee was elected in
1910 by between nix and seven thousand majority over h*s next highest op-
ponent. We all know what occurred in the election of 1912. Col. Roosevelt
divided the party and led off for himself a most powerful and numerous
wing thereof, under the name of the Bull Moose or National Progressive
Party. The candidate for that party in this d'strlrt. Hon. Edward N. Ding-
ley, received 12,907 votes — only about seven hundred less than Contestee
and only about five hundred and seventy-five leas th'^n Contestant: had it
not been for this Progressive diversion from the R^pu^Hcan ranks.' Con-
testee would have had a 'arge majority of the votes cast for Mr. Dingley,
and there really would have been nothing to the contest of Carney vs
Smith, either at the polls or in Congress.
One would think by the reading of Contestant's '*Stptpmenf (page 2),
that Democrats were never allowed to handle the ballots In Mirhlcan, and
in the Third Congressional Distrct, and really h»vp notbins: to do with the
elections except to stand by and watch Reprbl'p'an«» do the conn tin? and
returning of the vot**s. The fact is that the character of our citizenship is
such here in this district that the minority narty is eiven srpnerous renre-
sentation on such boards, and even where no l«»w renn'res it. election boards
and canvassing boar^ls are more e^enerallv bi-parti^qn tb»T> thov arp ^n-ti^^qn
Boards of county canvassers po far as our observations have gone, thonarh
perhaps there is no law reouirinp it. have a D*^mocrat or two unon thpm;
at least this is true In that nortion of the district where <^ontPSt«nt maVog
substantially all his complaint in regard to tht.s election: in other words.
an examination of hifl brief shows that with the exception of a few votes,
his whole complaint is based upon the manner In which the elections were
conducted in fire precincts of Eaton County, the home of Contestee.
Now Just a word of a preliminary character In this connection. The
vote of a congresfiman is under the laws of Michigan canvassed three times.
First, by the board of election inspectors where the votes were cast; second,
before the board of county canvassers to whom the returns are sent by the
board of election inspectors; and third, by the state canvassing board to
whom the returns are sent by the board of county canvassers. It will be seen
that these votes run three distinct gauntlets.
In the County of Eaton where as stated, Contestant makes his principal
complaint, the county canvassing board was made up of three men — Brown,
Hawkins and Little. Two of these were Democrats and one (Brown) waa a
Republican.
Record 358.
In the County of Calhoun where complaint is made by Contestant of one
precinct, the chairman of the board of county canvasser?^, Geor?e W.
Schneider, was a Democrat. We think the Record fairly shows that he «vas
really the man in control there, and to a great extent managed and directed
the movements of the board. True, it is c.aimed that the board of county
canvassers have very limited authority and cannot do much except act upon
the returns as furnished them by the inspectors. This Is not literally true
as we shall show before vre get through; but we have spoken of this con-
dition in these two counties because of the moral aspects of the situation.
The Contestant met with the board of county canvassers of Eaton County
and filed some protests which were overruled by the board, a majority of
which were his own partisans. He a so appeared before the board of Cal-
houn County and made bis objections in relation to correctine the most
obvious error, from the Battle Creek precinct, but was unanimously over-
ruled by the board of county canvassers which had upon it a very able and
very honest Democratic chairman. So it ^ill be seen that his own party
friends overruled his protestations against the canvassing of certain votes
of which we will speak of specifically, later. We will also call attention a«
we go along to the fact that in two of the townships where Contestant makes
his most grievous complaint, SunfleM and Carmel in Eaton County, Demo-
crats conducted and assisted in conducting the election and the counts.
We are surprl-sed at some of the statements made by Contestant !n his
brief under the heading, "Statement of Facts " On page 2 of his brief abont
the middle, in enumerating what he claims to be wrongs inflicted upon him,
he says: "Changed returns at the personal request of John M. C. Smith, con-
trary to a specific statute.'* We submit that this statement is who ly base-
less and without foundation. If John M. C. Smith personally requested any
change of returns, then it was the duty of Contipstant to point out the p^^ge
of the Record where any such thing as that appears. The only possible
ground for such a statement wiM be found on page 141 of the Record in the
testimony of George W. Schneider, chairman of the board of canvassers for
the County of Calhoun. He was testifying about how the board came to
send for the ballot box in the second precinct of the second ward of Battle
Creek at the time the board of county canvassers was in sessfon at Marshall.
The following is the evidence:
He testified in substance that Mr Smith and other of his friends were
there and someone, he could not tell who, requested .that the baPot box be
brought over from Battle Creek, and in substance, the returns counted. He
thinks this request was made by a representative of Congressman Smith;
but where is the evidence anywhere in the Record that anv returns were
changed at the request of Contestee? If by reading all there Is of it. it be
concluded that no such statement was ju.«5tifi'»d, no such accusation ugainst
Contestee was justified, wou d it not be well to watch closelv all of Con-
testant's statements and claims in his brief to PscerUin whether su-^h
statements and claims were borne out by the Record. This is a fair .nample
of the kind and character of a showing which Contestant has made, and is
making to gain this seat in Congress. We challenge the Record to the
stetement that there is no spot or place in it where Congressman Smith
did anything dishonestly, suggested anything to be done which was irregular
or questionable, but he simply stood there to receive the verdict of the
people as it waa honestly expressed. We ask again what basis is there for
Contestant to make any such accusation?
On page 3 of Contestant's brief under the "Statement of Facts," he ac-
cuses Contestee and his attorneys of endeavoring to suppress a certain af-
fidavit. This statement is absoiUtely without foundation, and when an in-
vestigation of the matter is made, it is really ludicrous. This matter related
to the township of Sunfield. One Knapp had testified that an aflidavit had
been prepared for him to sign and that he signed it. One John C. Nichols
testified that he could not find the affidavit. He was directed to look for it,
and the next morning when the session of taking evidence was resumed,
he having made a search therefor, produced the affidavit and it was put in
evidence.
The fact is, instead of trying to conceal the affidavit, Contestee and his
attorneys went to extra pains to find it, and themselves voluntarily pre-
sented it at the hearing and had it read into the Record.
Record, Page 334.
But please read the affidavit and then say what earthly motive could
anyone have, either Contestee, or his counsel, to try to conceal this paper.
It threw no light upon anything and had absolutely no connection or bearing
in favor of Contestant's contention. The charge is almost laughable were it
not for the fact that Contestant makes it apparently seriously, and with the
hope that the House will consider that incident a very important and decid-
ing feature of this contest. Other statements made by Contestant in his
"Statement of Facts * are equa.ly surprising and certainly not supported by
the evidence or the facts in the case. Are they not made with the hope
that assertions will be accepted in the place of argument, and claimed facts
will be acted upon in place of the actual facts? Do they not show an
effort to prejudice, and not to convince; an effort to befog the i^sue rather
than to give light to this Committee and the Huse?
We want to say in this connection that we hesitate to ask the Commit-
tee and the House to read this prolix Record; made prolix, as examination
will show largely by the Contestant; made unnecessarily prolix by the in-
troduction of matter by counsel for Contestant, entirely foreign to the case.
This Record contains about GOO closely printed pages of small type
matter, when it should not have contained no more than half of that num-
ber; and while we have this thought in mind and to accentuate the blame
we lay upon Contestant for making this Record so lOng, we wish to call
attention to the cross-examination of John C. Nichols by Contestant's attor-
ney. Mr Nichols began his evidence on page 304 of the Record and closed
on page 358. There were about 5 pages of direct-examination and more
than 50 pages of cross^xamination. If this cross-examination of Mr.
Nichols had, as it proceeded, developed anything new in favor of the Con-
testant and against the Contestee; had thrown any light on the transaction
to aid anyone in determining the issues, it would not be open to the ':riti-
cism we are making; but we ask anyone who has the time (but we fear
no one will have the time) to read over that 50 pages of closely printed
matter and then say if they can, that such a pro.ixity of cross-examination
was justified by counsel.
As before stated, we think it an unkindness to ask any man who has
multitudinous duties to perform, as all congressmen have, to read that cross-
examination, and similar exhibitions of prolixity on the part of counsel for
Contestant in developing this case. Counsel for Contestant were accused
early in the taking of estimony by counsel for Contestee, that they were
purposely making this Record so pro.ix as to confuse the issues, and make
it so long that few If any could ever take the time to read it through;
whether this statement was just or not we leave it to others to decide from
what appears here, but with due respect to counsel for Contestant we are
constrained to say that in all our experience, we never saw so many ques-
tions asked of the various witnesses of Contestee on cross-examination,
which apparently had no bearing, near or remote, on the issues involved.
6
In making our answer to ConteaUnt's brief, we will follow substantially
the same order which he has adopted in the discussion of the different
questions, and the taking up of the different precincts upon which he ap-
parently relies.
As we understand and have always understood the practice, that claims
mads In the Record and not repeated in the brief are abandoned; and there-
fore we understand and shall assume that the alleged irregularities existing
in those townships and precincts which Contestant has not discussed in
his brief are abandoned by him and that what the Contestant actually claims
is tabulated on page 26 of his brief under what he calls the re-capitulation
of votes, wherein he claims that if 919 votes are deducted from Contestee's
vote and 521 are deducted from Contestant's vote, it would leave Contest-
ant a plurality of 271; or to state it differently, if the majority secured by
Contestee in the townships of Sunfield, Carmel and Winsor in Eaton County
are thrown out, and the majority received by Cdhtestee in the Second and
Third Wards of the City of Char.otte are thrown out and 28 of the majority
received by Contestee in the Second Ward of the Second Precinct of Battle
Creek, Calhoun County, are thrown out, and the 11 votes gained by Con-
testant in the re-count of the Township of Climax in the County of Kalama-
zoo, is added to Contestant's vote, it would give him, the Contestant, a ma-
jority over the Contestee of 271 votes.
In other words, as we understand it. Contestant has abandoned all other
claims which might be made by his petition and his evidence, excepting the
alleged irregularities In the five precincts of Eaton County above enumer-
ated, and one precinct in the County of Calhoun above mentioned, and the
one precinct in the County of Kaiamazoo above mentioned.
Before going into a systematic reply to Contestant's brief, allow us to
make the further observation: The Third Congressional District is made up
of five agricultural counties It contains no large cities, unless Kalamazoo
City with approximately 50,000 people and Battle Creek with approximately
25,000 people, are called large cities. We have experienced none of the rot-
tenness, fraud and cheating which other sections of the country have suf-
fered from. The citizenship of this district is of the highest character and
almost without exception, the men whcee duty it is to conduct elections and
canvass the votes, are of the very flower of that citizenship. Contestant
can make no well-founded claim that our elections are in the hands of rogues
and rascals and can make no well-founded claim that a candidate ever suf-
fers from fraud.
And it must be further observed that the irregularities of which Con-
testant complains almost wholly, are found in the county of Eaton which is
almost strictly a farming community, w'th the largest city therein contained,
Charlotte, with perhaps no more than 5,000; on top of this the townships
where most complaint is made by him in the county of Eaton, are strictly
farming townships where the election boards are made up of men who stand
as high, morally, as any citizen of this country. Perhaps ill-advised as to
the technical construction which courts might be compelled to put in given
cases, upon election statutes, yet nevertheless men who would lose a right
arm before they would be guilty of any intentional violation of any of the
mandates of our election law^s. We speak of this because we think it
somewhat remarkable that in this big district where more than 50,000
voters must have participated in the election of congressman, that the
only place where Contestant can find anything worth while, is in a county
and in townships farthest removed from those conditions which make
elections sometimes suspicious. It is a little singular and somewhat r^
markable, that the only place where Contestant finds Irregularities worth
while, happens to be in the home county of Contestee, where he would
naturally be the recipient of larger majorities than in any other county.
We believo that there is not a man in Congress today who is there
with a majority of less than 500 votes, who could not be unseated for Just
as good and better reasons than are urged here by the Contestant; but
believing as we have stated before, that this Committee, and House have
only one ambition, one desire, and that is to seat the man who honestly re-
ceived the most votes, irrespective of hair-splitting technicalities and the
ignorant violation of statutory provisions, we confidently come with this case
I
believing tliat we will receive the fairest treatment which can be accorded to
a man who is honestly defending an honestly acquired seat in the National
Congress.
As a result of this election and the counts of the various boards and the
canvassing of the various boards, the Con test ee received a certificate of elec-
tion at the hands of the proper officers of the state of Michigan based upon
a plurality of 127 over the Contestant.
It will be admitted here that by reason of a mistake in the township of
Climax. Contestee should have 11 votes which he gained in the recount in
Climax township which was had at the time of taking testimony at Kala-
mazoo. But with the exception of these 11 votes wh*ch were cheerfully con-
ceded to Contestant by the Contestee, we claim and insist that the Contestee
should retain his seat because of his having honestly received, honestly
counted and honestly canvassed, a plurality of 116 votes.
We will now consider in the same order Contestant has considered, the
seven precincts of which he complains. We will argue the facts of each
precinct and present such authorities as we think have a bearing In applying
the law to such facts.
I.
Township of Climax, County of Kalamazoo.
We are somewhat at a loss to know why any space Is taken up in Con-
testant's brief in relation to this township. A reference to the Record, page
153, 154 and 155, will show how this township was disposed of. Counsel for
Contestee sta'ed that Congressman Smith does not desire to have counted
for him any ballots that he is not legally entitled to and does not desire that
any votes Mr. Carney is entitled to shall be taken away from him. He then
proposed ' hat the board and the ballot box being present at the hearing, that
it be opened and that each party in this contest be given precisely the num-
ber of votes that were cast for him at he November election.
It seems that on the nigh^ of the election a bunch of ballots which
might be called Democratic splits were rolled up and put away without be-
ing counted. The total vote of that township was 318, while the vote for
Contestant and Contestee totalled up 165. It was quite obvious that there
was a discrepancy — ^an error in counting. When this mistake was corrected
it was found that Contestant gained 18 votes and Contestee 7, giving Con-
testant a plurality of 10 instead of Con'estee a plurality of 1 in this precinct.
The disposal of the complaint in the township of Climax was so fair and
so free from anything like feeling or prejrd'ce in the matter, that we see
absolutely no ground for any aspersions against either the board of elec'ion
Inspectors or anyone else. In discussing this township Contestant in his
brief (page 3) says:
''The evidence is undisputed that a large roll of ballots, a large
majority of which were Democratic ballots, were overlooked either by
design or mistake on the part of the election board, and by the cor-
rected returns from this township Carney would gain 11 votes."
Permit us to note here that Contestant w^s willing to have a recount
of the ballots in Climax Township where there would be a gain for him
of some votes; but he absolutely refused to consent to a recount of the
ballots in the Second Precinct of the Second Ward of Battle Creek, where
much the same kind of an error occurred, and absolutely refused to consent
to a recount in the Township of Carmel as proposed by Contestee, both of
which latter precincts were carried by Contestee.
At this point because it happens to come 'o mind, we want to call
attention to a little incident which occurred in taking testimony at Kala-
mazoo in behalf of Contestee, which becomes a trifle amusing in connec'ion
with the claim that Contestant now makes that Winsor Township should
be considered by this Committee and the House, though this precinct was
no^ mentioned in his original petition and notice. Counsel for Contestee
asked a witness who was testifying, whether the ballots of Cooper Township
had been initialed. Counsel for Contestant promptly objected as follows:
8
"Mr. Adams, objected to as Incompetent and Immaterial: They can-
not show by parol evidence ihe condition of these ballots in the ballot
box from anything that was gathered there when they were opened
up * * * and there is no mention made of it in the notice, etc."
Record, 493.
Is this not amusing, when Contestant's brief is read in connection with
the above just quoted?
At the time of making this objection Just quoted Contestant hadn't
heard of Winsor Township; but when he did hear about it he apparently
forgot the objection made by his counsel to Contes'ee making similar In-
quiries of his witnesses. Seriously though, has not Judge Adams in his
above objection, stated a pretty good proposition of the law of evidence,
viz., that it is not proper to show by parol the condition of these ballots —
the ballots being the best evidence. True, the ballots in Winsor Township
had been destroyed before the taking of testimony, but is not the point made
by Judge Adams good never heless. We leave Contestant to reconcile his
conflicting claims, but will simply suggest that this is a big affair and ought
not to be decided except on big ground, and if Judge Adams were right In
his objection to Contestee's evidence, why apply the rule to them.
But to return to Climax for just a moment. Why should Contestant state
in his brief and try to give the impression, that this mistake was made by
design, when there is not a line, word or syllable of evidence directly or in-
directly or inferentially, tending to establish any such accusation? Is it not
simply in keeping wi h the whole spirit and tenor of this contest as pre-
sented by Contestant? He uses the words "large" number of ballots and
"large" bundle of ballots. "Number" of ballots would have been sufficient.
Why wouldn't it have been sufficient for Contestant to say in his brief.
Just the plain facts, viz., that this farmer election board in the performance
of its duties, with which it was not accustomed, made an honest mistake
and failed to count a certain bundle of ballots cast at Climax that day? Be
that as it may, he now has the full advantage of them, and out of this "large"
number of ballots which the board of Climax "designedly" failed to count,
he received 18 and Contestee 7. This was a confusing election. The Record
shows that the physical powers of the boards were greatly taxed; many
remained up all night taxing their powers in the performance of unusual
duties. One man at leas:, in the Township of Sunfleld. overworked so that
in a short time thereafter he was in his grave. Another in the Township of
Wright, Hillsdale County, became so weary that he was obliged to go home
and permit others of the inspectors to complete the count. Michigan con-
gressmen know that this was a peculiarly hard election, especially for the
unsophi.sticated and untutored men who constitute a large majority of our
election boards in Michigan.
The board of inspectors of Climax Township are not deserving of any
such rebuke, viz., that they designedly failed to count that "large" bundle
of ballots. We therefore admit that to Mr. Carney's vote should be added
11, reducing Contestee's plurality to 116, as we enter upon the discussion
of the other precincts.
II.
Third Ward of the City of Charlotte, Eaton County.
In a way of preface in discussing this precinct we might say that Con-
testant made no mention of this precinct in his Notice of Contest or his Peti-
tion filed in this case. We will not now take the time to argue the question
as to whether this precinct should have consideration or not, for the reason
staged; but we do believe that in all fairness and candor a Contestant should
be obliged to state in his petition and in his original Notice of Contest, the
precincts in which he claims the irregularities lie; but not being certain
whether ths Commit' ee and the House will consider precincts not men-
tioned in the original Notice (which also applies to the Township of Winsor.
Eaton County, of which we will speak later) we will go on and discus's the
facts in relation to this precinct in Just the same manner as we do o.hers
which were mentioned in Contestant's original Petition and Notice. Con-
testant starts out with the proposition (page 4) of his brief that in this
precinct the undisputed evidence is that the inspectors were guilty of actual
frauds and that these frauds practiced by the elec.ion board were directed
solely to secure the election of John M. C. Smith.
We want to say now and with the sincerest belief that our statement is
absolutely unassailable, that there was no fraud in this or any other precinct
in favor of any candidate or against any candidate for Congress. We stake
our reputation as lawyers and men upon the proposition that there cannot
be found one line, word or syllable of testimony in this Record which Justi-
fies any unbiased person to come to the conclusion that any intentional
wrong was committed by any officer, inspector or clerk of said ejection in
any of the precincts in this Third Congressional District. We were never
more sincere in a statement in our lives when we challenge the Record
and every page and line thereof, on this proposition.
We wish this statement to stand as said before, to apply to all of the
precincts concerning which evidence was taken by either side in this con-
test. Saving, however, to ourselves this fact that if any legal fraud was
committed (not intentional, mark you) in precincts carried by Contestee it
was equally true of precincts carried by Contestant.
And this is such an important and integral part of our contention that
we wish to repeat the ?ame proposit'on in other words: The accitsation
that any fraud or intentional wrong, or intentional violation of our election
laws was committed hy any person in and about the polling places underi
investigation is absurd and unqnalifl*'dly without any foundation
This fact we want to stand out all the way through this discussion; as
a preacher sticks to his text; as an instructor over and over repeats his
rule; as a crusader holds in constant view h's banner; as a reformer is de-
voted to, and has faith in his shibboleth. We want this claim to stand out
as the guiding star of our argument and claims, and we hope this Committee
and this House will keep this assertion closely in mind in examining these
briefs and this Record; because we feel that every unbiased person who
will give this Record a painstaking and careful investigation, must find that
this claim of the total want and absence of fraud, is reli|:;iously and math-
ematically correct.
With this as an inspiration we can argue without constraint, restraint
or concealment, that if the Contes ee is removed from his seat here, and
the Contestant seated in his stead, a positive injustice will be accomplished,
and the man having the lesser legal votes will reap the rewards and the
hon(>rs intended for the other.
And we want to add a word more, that we believe as we shall have oc-
casion to say later, that this Committee and this House are going to seat
the man who has the most votes hones ly cast and honestly counted, even
though there be decisions and holdings which might Justify the throwing out
of certain of these precincts. We make this satement upon the basis that
in the absence of fraud and intentional wrong, where the result is honestly
arrived at and has not been changed as a result of irregularities, it is the
custom and precedent of th^s Committee and th^s House.to seat such hon-
estly elected member because it is its policy to overlook and ignore irregu-
larities which were no'^ intentionally committed and which did not change
the result. This we claim to be the situation in this case, that though
irregularities may be found which perhaps should not have occurred, yet we
say that there is nothing in this Record to justify this Committee or this
House, to make a finding that the Contestee is hold^g his seat by reason
of votes which should have been counted for the Contestant, or at least
which should not have been counted for him.
We have taken up considerable time on laying down these propositions
and making these assertions, because we believe these ideas are the central
ones and upon which this Committee and this House will act. When their
conscience is satisfied that Contestee is not claiming a dishonest vote and
that Contestant lacks 116 votes of having as many as the Contestee. they
will ignore and hold immaterial and not applicable strictly technical hold-
ings as to mandatory and directory provisions of our election laws.
10
It must not be understood here that we admit at this time that the
Supreme Court of Michigan or the statutes of Michigan applying here would
require the throwing out of these precincts under discussion.
We do understand, however, that the constitution of the United States
makes this House the ultimate sole judges of this election — from whose
decision there is no appeal, whose finding is absolute and final; that they
are not controlled by any decisions or any statutes anywhere, but if such
decisions and statutes are considered, they are simply of an advisory char-
acter to this Committee and this House, and in no way absolutely binding.
Perhaps more of this later, and we will now take up the discussion of
the precinct mentioned in the 11. heading of Contestant's brief.
We have concluded that Contestant's claims are best answered by a
presentation of the facts as they appear in the Record in relation to each
precinct. When the facts are considered it will be obvious that there is a
great dearth, a great paucity, if you please, of evidence tending to establish
a condition which shows fraud, intentional wrong, or any other condition
which would require the throwing out of votes.
It is the contention of Contestant that the Third Ward of the City of
Charlottee wherein the Contestee received a majority of 98 vo'es, should be
wholly thrown out. As we understand his complaint in relation to this pre-
cinct, it is in substance that two inspec'ors of election suggested to voters
that they vote for Contestee and also that these inspectors entered the
booth with certain voters while preparing their ballots. Let us first call
attention to the evidence as shown by the Record. When this evidence is
read, one ia actually surprised to find that Contestant can soberly urge a
rejection of thi& precinct on such flimsy grounds.
To begin with Contestant was content to rest his case on the testimony
of a single witness, Jackson Mosier; while the Contestee came frank' y and
freely forward and brought in five witnesses who were officers of the elec-
tion in this precinct. Jackson Mosier was the Democratic challenger, and
it 8trlk«!8 us that one cannot read his evidence without coming to the con-
clusion that it lacked both intelligence and truthfulness. He testified in
regard to his occupation in response to Contestant's questions as follows:
"Q. What business are you engaged In?
A. I don't know hardly.
Q. Are you retired?
A. Yes, tired.
Q. What did you say, retired or tired?
A. Tired." (R. 46).
Upon what comes from such a man as that. Contestant asks this Com-
mittee and House to throw out an entire precinct of intelligent and patriotic
voters.
But let us see what he says. He testifies that when any voters asked
for instruction he went in the booth with the two inspectors, Dowdigan and
Dunning. (R. 44). He says that he heard a suggestion made by Mr. Dun-
ning to a voter to vote for J. M. C. Smi h and he says they had some trou-
ble there. (R. 45-46).
Under cross-examination (R. 46, bottom) he testifies on this subject as
follows:
"Q. Mr. Mosier, you didn't see anybody mark a ballot for a voter,
did you?
A. No, sir; I couldn't say that I did.
Q. Now, Mr. Mosier, did you hear either one of those inspectors
ask any voter to vote for John M. C. Smith in that language?
A. I did one.
Q. Who was that?
A. Mr. Dunning.
Q. Do you remember the man's name.
A. No, sir; I do not.
Q. Can you give the language he used to this man?
A. He said *J. M. C.,' that is all,
Q. He Just mentioned the name?
A. Yes, sir.
11
Q. Was this about the language he used, 'How about John M. C.
Smith?'
A. Yes, sir; something like that.
Q. That is all he said?
A. Yes, sir.
Q. That is the thing you took offense at?
A. I didn't think it was right.
Q. That man was the one that caused the trouble when he said
*How about John M. C. Smith'?
A. That is the time 1 got a liitle mad.
Q. Do you remember that man's name?
A. No, sir; I cannot think of his name."
The witness was then re-examined by Contestant's counsel, and appar-
ently seeing how trifling the case had become under such cross-examination,
attmpted to strengthen it as follows:
"Q. Did you hear any suggestion made to any of these others that
applied for instructions that day?
A. The same thing.
Q. How many different times did you hear these suggestions given
to voters.
A. I couldn't tell you how many there were who asked for assist-
ance. I couldn't give the number.
Q. State whether or not sugges ions were made to all when you
were present that day?
A. Do you mean those who asked for assistance?
Q. Yes sir.
A. All those I think, yes. sir." (R. 46-47).
The witness then goes on to testify that he didn't pay any attention
to who they were and did not know any of them by name. Witness also
testified that the voters simply asked how to mark the ballots and then
marked them themselves. (R. 48).
The Contestee, as stated before, when he came to take his evidence as
to what occurred in the Third Ward of he City of Charlotte on that day,
brought in the two inspectors which Contestant accuses of fraud — Dunning
and Dowdigan; two clerks of election, Fisher and Munger, and the Repub-
lican challenger of the precinct. Sawyer. Beginning with page 405 of the
Record and ending with 433, is found the estimony of these five witnesses
to which we will briefly refer, and then let th-s Committee exercise its
choice as to what the facts were between Jackson Mosier, the single witness
produced by Contestant, and ihe five men who actually conducted the elec-
tion there that day. Mr. Dunning testified that he acted as one of the
inspectors and when asked whether he heard anyone electioneering for
John M. C. Smith there tha: day, said that he did not. Mr. Dunning was
asked whether he mentioned Mr. Smith's name that day and he said that he
did at one time. He stated that he mentioned it casually under the follow-
ing circumstances: Mr. Tracy, a very old man with whom he. Dunning,
had been well acquainted, came in there to vote and there were two old
men in there at his back and he. Dunning, and Mr. Dowdigan heard them
talking there and turned around and he heard this old man say, "I want
to vote for Mr. Storrs and somebody else," and I says, "How about J. M. C,"
and he says, "Yes, tha^ is the man." (R. 406). Witness testified that that
Is the only time he said anything about it. He did not see the other man's
ballot and was not in the booth and was not where he could see his ballot.
He testified that he did not know whether the old gentleman marked the
ballot or not. He further testified that no voter applied to him for instruc-
tions of any kind that day about marking his ballot. This was (he length,
breadth and depth of Mr. Dunnigan's infamy in soliciting votes for John
M. C. Smith, the Contestee. It seems that this old man, Tracy, wished to
vote for his fellow 'ownsman, Mr. Smith, and just for the moment he could
not think of his name and Mr. Dunning suggested it, to which he replied,
"Yes, that is the man."
12
Nvwi -cdllhig attention to Mr. Dowdlgan. tbo'Olfter tasp«etor. Mr. Dow-
digan testifies In relation to his alleged soliciting of votes as MIows:
"Q. Who was there to assist voters IT they had to he assisted?
A. Why, I was on the inside where the voters came In and handed
the ballots out to tiuem and they would turn to me for Asslictance.
Q. You mean to go into the booths and mark the- ballots ^ith them
who^asked for instructions?
A. Yes, sir.
Q. Did you go in the booth and mark any ballots tor any voLer
that day?
A. I didn't mark any ballots; I went in the booths I think twice
♦ • ♦ I might have been three times.
:Q. Nowi 4id>70(u h«ar the teatinoiiy 'Of .Mr. nunning?
A. I heard part <rf it.
Q. Do you have any recollection •!»£ ttet oeeureease? • • *
•A. Yes, .sir; there was quite an old gentleman in. the booth and he
said he could not see to mark his blUlot, he wanted Bome assistance,
so I stepped in the booth from my side and called Mr.' Mooter from
the other side; he was pre ty well over towsrd the side of the booth
that Mr. Mosler came in from. As Mr. Mdster^tood there holding the
door partly open with his hand. And this >man aays^-r ask liim who
he wanted to vote for and he aays, *I ^ant to .vote the Democratic
ticket and some of the Republican ticket.' ' I showed him the head
of the Democi^tlc ticket and Mr. Mosler was looking on and Mr.
Johnson was looking over Mr. Mosler's shotHder. Mr.^ Johnson was
outside of the booth. I made a mark In a circle- at the head of the
ticket apd I says: 'Who «lse4o you want to vot^ fiorT . He says. 'Mr.
Storrs.' That was on the couh''y ticket. And I showed him where
Mr. Storr's xkame was and he made the .same mark 4]Mre. I- says,
'Are there any others,' and he aaya, 'Now wait a minute.' l «ajr8,
'How about J. M. C, Smith?' He<saya, 'Y«8, I want to vote Ibr J.M.
C. Smith,' or words to that effect. That was aU ^thal was aaid.**
{R. 420*421).
The witness further testified that he heard no electioneering lor any
candidate nor heard no one urging or suggesting to any voter 'that he sup-
port or Tote for any particular candidate at that election. '(R. 421). This
witness further testified on cross-examination (R. 4^1, t>ottom) that this
man Tracy voted for John M. C. Smith and marked the t]fanot himself.
Witness said he was in the booth on one £ide and Mr. Mosler on 'he otlxer
side. Witness further stated (R. 421) that no oath was administered to
Mr. Tracy before assistance was rendered. He further "testifies that the
other man he went into the booth with was a Mr. Cooper, that he wns a
very old man and very feeble ^nd nnist t>e upward of eight y-'five, witness
states. Witness further testified that he would judge frona the old gexitle-
man's apparance that he could not see to mark liis own haltot. (R. '422).
Claude E. Plsher, one of the cleiks t)f ihe election In the 'Tlilrd Ward
of the City of Charlotte, was produced as* a witness by Contestee ahd he
testified that there was no electioneering around the Toting place, but
remembers the Tracy Incident and relates it as follows:
"An old gentloDUOi came in, I don't remember his same, and I ^oa't
remember whether he was Mind or whether he'CoiUdn't read.lnit 4ie
was a very old gentleman, and he asked for instructiaoaA and -he fiaid.
as I remember it that he wanted to vote for' Mr. Wilson' aaid Kerplc.
and Mr. Dunning was standing by the booth or door and he si^s:
'How about J. M. C.?' I think tboee w^re his woods. That ia tl»
only thing I heard during the <day that had anerthing to 4o ia<r«0anl
to electioneering." (R. 424*425).
Roy Munger, the other clerk of election for this precinct, was called as
a witness by the Contestee and he testified that Mr. Carney received .credit
for all the votes that were cast for him to the best of his knov^ledge.
(R. 427). In relation to this Tracy incident witness testified as follows:
13
4«f
'The only thing I remember was the time when an old man went in
there and asked for instructions and Mr. Dunning said something like
this, 'How about John M. C. Smith or J. M. C. Smith.' That is the
only thing I saw or heard that Mr. Dunning said during the day that
would be taken for electioneering for anyone.
Q Did you hear Evander Dunning at any time urge anyone to
vote for John M. C. Smith or men ion his name aside from what you
have just mentioned?
A. No» sir."
John W. Sawyer, the Republican challenger for this precinct on that
day, was called as a witness for the Contest ee, and testified in relation to
this matler, that he did not hear anyone urge anyone or solicit their vote.
Witness said:
"] heard a man say there were two men on the Republican ticket
he wanted to vote for; one was M^. Storrs, and the other he couldn't
remember which one it was. He was an old man and Mr. Dunning
says, 'J. M. C and he says, 'That is the man.'
Q. Did you hear Evander Dunning make a suggestion of that kind
to anyone else during the day?
A. No, sir.
Q. Where was Mr. Mosier at that time?
A. I think he was in the booth with the man himself." (R. 431).
We cannot take the time of this Committee to quote further from the
testimony in relation to this particular precinct. But summing it up it
seems that all this alleged fraud which Contestant charged in his brief,
page 4, against the two inspectors, Dowdigan and Dunning, simmers down
to this: That on election day an old man by the name of Tracy came in.
there, went into the booth and decided to vote the Deniocra ic ticket in the
main, but wished to vote for certain Republicans; that he could remember
one of the names, Storrs, the Republican j^andidate for sheriff, but could not
remember the other man he wished to vote for. In response to the dilemma
he wab in, the name of Contestee was suggested by both Dunning and Dow-
digan, which mention refreshed the old gen leman's recol ec ion and he said,
"^es, that is the man." Dunning did not go into the booth with him, did
not see the ticket, nor know how he marked it, but Dowdigan did go into
the boo h together with this man Mosier, who saw and heard all that was
done. The soliciting of votes charged then by Contestant in his brief under
discussion of this precinct, amounts to the suggestion made to an absent-
minded voter by the inspectors of the Con estee's name.
While it is true that in one place Mosier testifies thrit this same sug-
gestion was made to all the voters who asked for instructions, in ano her
place, as we have shown, it simply simmered down to one instance which
was in regard to this old man Tracy; but we are content to rest our case on
the testimony of :hese five witnesses against the contrad'ctory statements
of this one witness produced by the Contestant. Dowdigan frankly admits
that he went into the booth with two or three vo ers, one being this old man
Tracy and another an old gentleman about eighty-five years of age by the
hame of Cooper, who apparently could not see to mark his baFo', and it may
be one o her of which Dowdigan apparently had no accurate recollection.
Contestant says in h*s brief that Dowdigan admitted that he solicited
one vote for Smith and Dunning admitted that he solicited one vote for
Smith (Con'estant's Brief, page 4). What is the use of intelligent and able
counsel making such assertions? We have quoted copiously from the evi-
dence and have set forth the substance of it on both sides, and neither
Contestant's witness nor Contestee's witnesses have tes ified to the solicit-
ing of votes for John M. C. Smith. The most that can be said concerning
this is that one particular incident and only one of these two election
inspectors in assisting a voter, suggested to siid voter a name which he
was apparently trying to think of. Would it not be too bad — yes, absurd- -
to throw out 330 votes because perchance one s'ngle vote had gone in which
had first come in touch with a slight indiscretion, to say the least, before
being cast? No court on earth would throw out the vote of the Third Ward
14
of the City of Charlotte on the statement of alleged fraud made here by
Contestant.
But counsel attempts to re-enforce his argument by eiting the section of
the statute which he claims has been violated and citing some Michigan
Supreme Court decisions in relation thereto; Contestant claiming that when
the law of Michigan is applied to the facts in this precinct the votes must
be thrown out irrespective of whether there is any proof of irr^fularities
which affected the result. It is true that the soliciting of votes is made
unlawful by the Michigan election law, said law being as quoted by Contest-
ant at the bottom of page 4 of his brief.
Contestant says after quoting this section, being Section 3643, Michigan
Compiled Laws of 1897, and Section 170 of Exhibit 67, ''this case has been
very forcibly construed in
Attorney General vs. McQuade, 94 Mich. 439."
We may be mistaken, but we do not think that this particular section
(relating to the soliciting of votes) has been construed in the ease cited,
though we have no doubt that if a case were presented where the soliciting
of votes were carried on in violation of that section* to such an extent as to
make the result of an election doubtful, that our court, or any other court,
might in a given case decide that the whole preeinct should be rejected.
This case of Attorney General vs. McQuade, cited by Contestant at top
of page 6 of his brief, and the case of McQuade vs. Ferguson. 91 Mich 438,
cited at the bottom of the same page, are cases relating to an elec-ion which
was held in the Township of Ecorse in the County of Wayne, this State.
Let us examine those cases, but briefly. It is stated in the McQuade vs.
Ferguson case at page 439, that alleged violations were that Hyacinth Rlo-
pelle, as chairman of the inspectors of Precinct No. 2, permitted outsiders
to go into the booths with voters, and help them mark their ballots; that
'such electors were never sworn or examined in any manner by either of
said inspectors to ascertain whether such voters could read their ballots or
were incapacitated from performing their duty; that Inspectors Montle and
Haltiner repeatedly protested against such conduct, but were overruled by
the chairman; that said Riopelle permitted upwards of ten different out-
siders to accompany a large number of voters into the booths to help them
in marking their ballots; that upwards of 50 voters were thus assisted
without any examination as required by the statute; that these outsiders
went into the booth with the voters and remained there until the ballots
were cast, etc.
In the case of Attorney General vs. McQuade. 94 Mich. 440. the situation
is stated there in substance as follows: That about 75 vomers in that pre-
cinct had shown their ballots after the same had been marked and the
chairman of the Board of Inspectors. Hyacinth Riopelle, allowed and
instructed third parties to enter the polling booths to mark these 75 ballots
for these voters.
The pleadings in these cases were so made up that the Supreme Court
said that these facts must be taken as confessed and true. Under such a
state of facts as. is presented by what we have set forth above, the Supreme
Court of the State of Michigan, said as quoted by Contestant in his brief,
that the provisions of the election law had been grossly violated; but what
comparison is there in the facts between the two cases cited and now
being discussed by us, and the Third Ward of the City of Charlotte? In
the McQuade case some ten outsiders were allowed to go into the booths
and mark ballots for something like 75 voters. The comparison need only
be stated to show the tremendous difference between such a case, and
where there could not have been by any possibility, more than one or two
tainted votes.
But there is another matter we wish to call attention to. At the time
the decision of the case of Attorney General vs. McQuade and McQuade
vs. Ferguson, the statute was different so far as relates to the entering of
the booth. The section which relates to a person taking an oath prior to
receiving assistance, at the time of those two decisions read as follows:
"If the elector shall make oath that he cannot read English or if it
shall be made to appear that from physical disability he cannot mark
15
his ballot, his ballot shall be marked for him, in the presence of at
least two of the inspectors by an inspector designated by the board
for that purpose, who is not a candidate on the ticket."
Act No. 190, Laws of 1891, Section 32.
The section Just quoted has been repealed and the one substituted which
now stands as Section 3642, 1st Michigan Compiled Laws, being Paragraph
1G9 of Exhibit 67 in this case. It will be noticed in reading the case of At-
torney General vs. McQuade that much stress is laid upon the fact that the
booth was entered by others than the elector. The Supreme Court
assumed that this was a flagrant violation of the election law as it then
stood. The principal change in the Section as quoted by us in this brief
and the Section quoted by Contestant in his brief (page 5 at bottom) is that
in the older Section this ballot had to be marked in the presence of two of
the inspectors, while now the Section provides that it shall be marked in
the presence of the challengers of each political party having a challenger
at such voting place; another difference is that the latter Section provides
that this marking which the inspector sball do for the ignorant or disabled
voter shall he done in one of the booths
In other words, when these Mc«Quade cases (they are both the same
case) were decided by our Supreme Court the statute was different from
what it is now — they having been decided in 1892, while our statute in this
regard has been amended since.
It seems to us a little unfair for Contestant to neglect to call attention
to this fact. The language used in the McQuade case and which is copiously
quoted from in Contestant's brief is language that was used in relation to a
statute which was essentially different than that section of the statute is
now. As stated before, the Supreme Court condemns the practice of enter-
ing the booth with the voter where he is inspector op not in the following
language:
'*If an inspector or other person be permitted to enter the booths
with the voters, the danger is far greater than under the old system,
where there was some opportunity to see and detect fraud, etc."
Attorney General vs. McQuade, 94 Mich 443.
But since the above language was used the statute (Section 169 of Ex-
hibit 67) expressly provides that the inspector who does this marking shall
do it in the booths — he must accompany the voter he is assisting into the
booth.
So we repeat that it certainly would have been no more than fair if
Contestant had called the attention of this Committee and House to the
fact in his brief, that the cases he has cited were decided when this partic-
ular Section of the statute read essentially different from what it does now.
The legislature evidently disagreed with our Supreme Court as to the
venality of al owing an inspector to go into the booth ; but what the Supreme
Court was condemning in the McQuade case was the permitting of outsiders,
some ten in number who were in no way connected with the election, to
enter the booths and mark these ballots for these illiterate voters. Such
conduct is shocking and the Supreme Court was right in throwing out the
entire precinct.
But admit for argument's sake, that in the Third Ward, Dowdigan did
enter the booth with two voters who were not first sworn, not only would
such a slight irregularity be disregarded under the circumstances, but we
think the evidence fairly shows that these two particular voters were men
whose very appearance justified the action taken by the inspectors without
their being sworn. The statute provides that the elector who cannot read
English must be sworn, but if he is unable to mark on account of physical
disability and such disability shall be made manifest to the inspectors, his
ballot shall be marked, etc.
This plainly implies that if the disability is a physical one and is one
discoverable by the inspectors without the oath of the prospective voter, he
need not be sworn. This is within the plain provisions of the statute.
16
The case of Attorney General vs. May, 99 Mich. 538, holds no more than
that it is unlawful for an Inspector of an election to assist in marking a
ballot for any elector who claims to be unable to read English until such
elector shall have first made oath to the fact; It further holds that this re-
quirement Is mandatory and votes in violation thereof should not he counted.
In our opinion there is no necessity in dwelling upon the law laid down in
this case. It simply addresses Its reasoning and argument to the proposi-
tion that where votes are illegally cast they should not be counted and
should be withdrawn from the count if it can be ascertained how many were
thus illegally cast.
We have reviewed these decisions cited by Contestant quite at length
to show how different the facts were in those cases from those claimed in
the Third Ward of the City of Charlotte in this case; and after the evidence
is read to which we have Called attention, is it not pretty near absurd for
Contestant to claim as he does in his brief (page 6, top), that the Record
shows conclusively that the soliciting of votes in this precinct was permitted
and continued during the whole day ; and in view of the evidence is not this
proposition astounding:
''That not only the entire board could h^ar the conversation and the
soliciting but that prospective voters in the voting places could hear,
and must necessarily have been affected by finding the entire election
board either actively engaged in soliciting votes for Smith, or at least
tolerating it. The condition in this precinct became so absolutely bad,
and apparently the board were so hardened to it, that when complaint
was made one member of the board boldly stated, "What are you go-
ing to do about it?"
When it is remembered that no votes at all were solicited, that there
was a single suggestion made to one single voter who was trying to remem-
ber a name, and when it is remembered that inspectors went into the booth
with only two voters and they both old men and that whatever was done,
was done in the presence and hearing of this Jackson Mosier, the Demo-
cratic challenger, it is absolutely ridiculous for Contestant to claim what he
does by his language above quoted.
As we understand it, the only possible thing which occurred in this
precfinct which could meet with the slightest criticism is the suggestion
made to the one voter, a Mr. Tracy, who was trying to think how to mark
his ballot, "How about J. M. C Smith," because as we have shown, no harm
existed in Dowdtgan entering the booth several times with voters he was
assisting, because as shown, the statute permits this in cases where the
disability is made manifest, and actually directs that the inspector shall go
into the booth to render this assistance .
wuiT^^® Michigan cases cited by counsel can have no application here
While it is true as stated before, that soliciting is against the law, and men
can be punished for It, and it might be even admitted that where a suf-
nclently bad condition appeared that precinct should be thrown out yet it
does not appear in this case that any soliciting was done; and secondly we
have not yet found where the Supreme Court so held that a precinct should
be tl^own out for that reason, and especially is it tnie that this Committee
and House will not throw out this precinct for the trifling IrregulariMes if
Hl^^i^?? ^® ^^ ^"^^' ^*^*^^ ^^°^ P'ace in the Third Ward of the City' of
cnarlotte.
„h„.Y® ^"'t?"* ** l*^** particular Juncture discuss the question as to
L!i?ML K Ho"f«> '^•"eh 18 the sole and only Judge of these matters. wUl
be ffuided by state laws and decisions, but might slmplv Intimate In closing
^^*.„^mT *" 'J?«'er this particular heading, that we do not believe that thi
Committee or the House would throw out this precinct (In view of the
a n~5,l'"'i^S^.f i'^ f''*"^"' Y^° " " *=*'"'<' ^ ""o^" t« tlie'" tl^at certain
Supreme Court decisions rendered in cases where the IrregularlOes were
serious and the defiance of the election law was great, had he^d in thosi
particular cases that these statutory provisions are mandatory and wouM
telnt the whole vote of the precinct, so It should be excluded- In other
words, we believe that this Committee and House will eSse Ite prero«
tlve In rendering a decision here which will do Justice In this pai^^S-
17
case irrespective of what the court found necessary to find the law to be in
other cases in order that justice might be done in those cases. In anoUier
place we may have occasion to say somethin^^ more as to what we undor^
stand to be the rule of the House in deciding these election contests in re-
lation to state laws and decisions, but it seems to us that no person could
by any possibility come to the conclusion that anything occurred in the
Third Ward of the City of Charlotte which should require the exclusion of
that precinct We therefore deny that the majority which Contestee had
in this Ward of 98 votes should bo set over as a Rain to the vote of Con-
testant.
III.
Sunfield Township, Eaton County.
As we read Contestant's brief, we conclude that the principal, perhaps
the only, complaint that be makes in regard to this precinct, relates to the
action of the board in appointing one Albert Sayre as Instructor — adminis-
tering the oath to him for the performance of that duty True, something
is said on- page 6 of the brief about the adjournment had by this board at
about midnight on election night, but we do not apprehend that Contestant
lays much stress upon that action; neither do we imagine that Contestant
would claim that this vote should be excluded because of the slight assist-
ance in tallying which was rendered by one or two who were not members
of the board.
This township presents the anomalous situation of a Democrat com-
plaining about the action of his fellow Democrats; in other words, it pre-
sents the situation of Contestant accivsing his brother partisans of having
conducted an election in such a manner as to have prejudiced his rights as
a candidate for Congress.
We will have occasion later to call attention to the fact that it has
been held that in substance, one should not complain of irregular action in
these matters of those belonging to his own po itlcal party. Not only for
thia reason but for a broader and more equitable reason we have been
strongly impressed with the inconsistency of Contestant's claim in this
township. We think the Committee and the House should apply the doc-
trine of estoppel here and not permit Contestant to profit by mere mistakes
of his own party friends.
In this precinct Contestant has been satisfied with subpoenaing one
member of the board and compelling Contestee to subpoena the balance in
order to give the House suitable intelligence on what actually occurred
there that day. Contestant subpoenaed the supervisor, a great big man in
every way, except perhaps deficient in ability to construe election laws.
He also subpoenaed two others, one being Sylvester Franks, the marshal
of Sunfield Village, who gave his observations as to the midnight adjourn-
ment, and the other man, Witherall, who, though not sworn, did assist
somewhat in the tallying.
The inspectors — two out of three, were Democrats. Witherall, the one
who helped tally, it seems was a Democrat. In short the election was con-
trolled and managed by Democrats The man against whom the worst com-
plaint was made, Albert Sayre, the instructor, was a Democrat and voted
for Contestant as well as the straight Democratic ticket.
Let us now examine briefly what the Record sbows in relation to the
election held in this township. First, let us examine very briefly the testi-
mony of the Supervisor Palmer:
He testifies that he Is sixty-three years of age. has lived in the township
for twenty-three years and is a shipper of grain and produce. (R. 66).
He further testifies that Mr. Witherall assisted in keeping the tally;
that Mr. Bera. the postmaster, tallied, and did not handle the ballots.
(R. 71) He further testi^ed that he has been ejected supervisor on the
Democratic ticket in this strong Republican township, that he has been re-
peatedly so elected. He testifies that Mr. Bacon was a Democrat and died
very soon after the election (Mr. Bacon was one of the inspectors) ; further
he testifies that Mr. Sayre who acted as instructor that day was a Democrat
18
and that a znajority of the board of inspectors w«re Democrats, that Mr.
Mapea, one of the clerks, was a Bull Mooeer, (R. 76).
Mr. Palmer further testified that all of his actions were in favor of an
honest election and that so far as he knew, Contestant got credit for every
vote that was cast for him, as well as Contestee; that there was nothing
occurred there that affected the result of election for members of Congress;
that they appointed Mr. Sayre instnictor because they supposed they had
a right to swear in snch an officer, and that they did this to facilitate and
help the election along; that that was their intent and purpose (R. 75).
He testified that this man Sayre was In the same room with all of them,
though he was on one side of the booths and the inspectors and the clerks
were on tbe other, but that he would have no difficulty in hearing anything
that was said by each of them if they talked loud enough; that no one ex-
cept legal voters voted that day, and that he knew all the voters. He testi-
fied that the election was a peculiar one with many split ballots and that
about 12 o'clock at night they had got pretty tired. (R. 76).
This witness described the manner in which the votes were counted as
follows:
"Mr. Bacon called off when he took a ticQiet — ^he called off each
candidate's vote as he came down through, and I would watch over
his shoulder to see whether he called off correctly, and when I stepped
to one side Mr. Hager would do that; when Mr. Bacon would get tired
I would sit down and call off and Mr. Hager would look over my
shoulder.
Q. There were two inspectors examining the count as you went
along?
A. Yes. sir." TR. 77).
He further testified on the same page of Record that he thought Bera
was a deputy township clerk.
Mr. Witherall, one of the witnesses for Contestant and who assisted in
the count for about an hour (R. 90) testified that he was a member of the
Democratic county committee and had been for some years We will state,
however, to be entirely fair about it, that it developed later that probably
he' was not a member of tbat committee at the time of giving his evidence,
but the substance of bis testimony was that he is a Democratic voter. He
gave no further testimony throwing much light upon the subject, and the
other witness of Contestant, Sylvester Franks, as stated before, gave no
important testimony in our view of the case, and testified mainly in relation
to the midnight adjournment concerning which we do not understand Con-
testant is making any claim. As before stated, Contestee subpoenaed in six
witnesses who were directly connected with the election in Sunfield — some
who were officers of the election and others who participated much or little.
D-ennis Hag^r was one of the inspectors of the election and testified
that he is pretty well acquainted in the township and that no persons voted
at that election at that precinct that were not resident electors of that
township. Speaking of the midnight adjournment he says that they went
out and went up to the clerk's office and from there over to the barber-
shop; that when they had been in the barber-shop probably a couple of
minutes they had orders to go at it and count the votes. In the meantime
they had called the Prosecuting Attorney at Charlotte who directed them to
go back and go to counting.
They were absent from the polling place but a very short time. fR. 218).
This witness was asked whether all the ballots that were in the box
that were cast for the Contestant were read for him, to which he replied:
'They were, he could not have got any more."
When the testimony of this witness is read, one is deeply impressed
not only with the fact that nothing was done to prejudice Contestant, but
that as a matter of fact all acted honestly and with a firm determination to
do their duty as tb°y understood It; and that nothing occurred which de-
prived Conte<?tant of a single vote
Z. D. Slater, the gate-keeper, was summoned and we simply call atten-
tion to bis evidence as to how the election was conducted and how the bal-
lot box was cared for at the time the board went to dinner.
19
D. W. Knapp was called as a witness by Contestee and gave a clear
and straightforward account of all the occurrences of the day upon which
he was Interrogated. His evidence begins on page 237 of the Record, and
we respectfully ask that his evidence be read in connection with thi£ claim
made by Contestant that this township be thrown out. He says he kept the
tallying just as straight as he ever kept any ta. lying, that he kept it straight
as they read it over to him; that w*hen they left the polling place at mid-
night the balTots were put in the ballot box and locked up, that those that
had not been counted were rol ed up by themselves and those that were
counted were laid out flat. He testifies that he considered that the count
and tallying were correct. (R 238-239). He testified that he gave Con-
testant credit for every vote that was called for him and that Contestee
got no votes that were not called* for him. After the adjournment at mid-
night was had this witness says they went back to work again in about
thirty minutes. (R. 240).
Contestee also subpoenaed H. H. Mapes. who was township clerk, and
was acting upon the board as clerk that day. He 'estffied that he appointed
his father-in-law, J. H. Bera, as deputy township clerk.
This witness also testified as to the midnight recess or so-called adjourn-
ment and describes how they protec ed the ballots at that time. (R. 251-
252).
As is the case of the oCher witness subpoenaed by Contestee here, we
ask that the evidence of this witness be examined, when it will be found
that everything was just as straight and square so far as intentional wrong
was concerned as it could possibly be at this election in the Township of
Suufield that day.
Complaint is made because of the conduct of Joel H. Bera, postmaster
of Sunfield, in his tallying some ten or twelve vo^es that day. r seems that
this man is by no means a rogue, as it appears that he has been clerk,
supervisor and treasurer of his townsh'p before being appointed postmas-
ter; that he was deputy township clerk at the time of this election. (R.
244). He says he tallied some ten or twelve votes. This witness further
testified that Mr. Witherall told him that he had vo ed the Democratic
ticket and had voted for Contestant. (R. 246).
When the testimony of this witness and all the w^itnesses in relation to
Sunfield is read over, we challenge the discovery of anything in any way,
shape or form which was done by this man Bera wh'.ch could in any way
from a moral or even legal standpoint, be condemned.
We now come to the testimony of Albert H. Sayre, upon whose conduct
is predicated the proposition that this township should be hrown out.
Examining his evidence beginning at page 433 and ending on page 438
will be found a straightforward account of his connection with this election.
When asked how he come to serve on the board he says that he was
there in the morning and they named him as instructor.
It must be remembered at this point that two out of three of the
inspectors were Democrats, and quite naturally a Democrat would be chosen
to fill this or any other posi ion that happened to be open that day.
He says he was sworn to perform this duty and that therefore he
handed out the ballots; that he had the table to lay his baFots on and a
chair to si. in and deliver a ballot to each voter as he applied for it.
(R. 433).
He further testified that he didn't go into the booth and d*dn't tell them
how to vote or anyihing of that kind, marked no one's ballot, but told some
voters where to mark their ballots; that he didn't see anyone mark their
ballot, nor that he did not solicit vo'es for anyone; that his politics is that
of a Democrat, that he supported Mr. Carney and voted the straight Demo-
cratic ticket and emphatically, that he solicited no vote for J. M. C. Smith.
(R. 434).
Contestant bases his claim as stated before, that this township should
be thrown out on the action of 'he board in appointing Sayre instructor and
upon the conduct of Sayre in distributing these ballots to the voters, and
claims that this precinct should be thrown out on he authority of the case
of
Attorney General, ex rel McCall vs. Kirby. 120 Mich. 592.
20
As before stated, we will discuss in another portion of this brief the
question as to whether this Committee and this House should be bound by
Michigan decisions, even if it were found that this decision and others
which have been cited by counsel would require the exclusion of this vote.
We shall point out, however, the distinction beiween the facts in the Klrby
case just cited, and the facts in the township of Sunfield. Let us examine
for a moment this Kirby case cited on page 8 of Contestant's brief. In
speaking of this so-called instructor and what he did there that day, the
Supreme Court says, at page 594:
"It was his custom to ask voters as they entered if they knew how
to vote, and if they desired instruction, he took the ballot, sometimes
holding it against the wall and gave instructions. He had free access
to every voter who came in. It is established that he talked with them
while in the booths with the doors open, and himself standing in the
door of the booth. He was while talking with the electors, a good
share of the time out of the sight of the inspectors and challengers.
* ^ * Several voters testified that he showed them upon the bal-
lots where to vote for respondent, if they desired to."
Under this state of facts the Supreme Court did use the language
quoted by Contestant on page 9 of his brief.
It striken uk that there is a great deal of difference between the facts
SLi\ revealed in the Kirby case and the facts as revealed by the testimony of
the witness in Ihe election in Sunfleld Township. In the Kirby case it is
stated that he talked with them while in the booths^ that he made sugges-
tions to the voters how to vote for the respondent in that case. We there-
fore dr> not think that the decision in the Kirby case would control the
decision of ouv Supreme Court necessarily in this case, but if it be held that
it did it certainly does not control the Committee and the House in passing
upon tho merits of this contest for al least two good and substantial rea-
sons.
First, absolutely nothing occurred of a venal or dishonest character in
the conduct of Sayre in the performance of his duty. Then if the House
finds that nothing occurred there which could by any posslbili'y be con-
strued into fraud or intentional wrong and which could not and did not
change or influence the result, this House will not be bound by the decision
in the case just cited for reasons already given and for reasons thai we
will give later on in this brief.
And second, as stated before, these so-called irregularities were the
action of partisan friends of the Contestant, and he should not be permit: ed
to complain of such action unless it appear that it did as a matter of fact,
prejudice him in the precinct and lose him voles. We will call attention to
a contest where this principle was recognized, later on in this brief. The
evidence all shows that this was an honest election where no venal ballots
were cast and no effort was made by anyone to influence the free and
untrammelled exercise of the franchise by the voters of that precinct. Let
us call attention to what Contestant's reasoning might lead to: Sunfleld
was a strong Republican township, where as a matter of fact, Contestee
should ordinarily, and did receive a nice vote. If such principles prevail as
are contended for here, how easy it would be to systematically throw out
strong Republican townships, by intentional wrong action on the part of
Democrats in permitting such things to take place as took place here in
Sunfleld. This would be true as to strong Democratic townships where
Republicans happened to be in control of the election. The minority party
might permit some such thing as this, for the purpose of challenging the
election later on.
To state this in other words, and more explicitly, supposing the Demo-
cratic friends of Contestant knew on the morning of election, that Smith
would get a large majority in Sunfleld, how easy an irregularity of this kind
could be introduced rendering the election void and Sunfleld with its nice
majority for Contestee thrown out, though Contestee himself is as innocent
of any knowledge of such action as an unborn babe.
When people are discussing possibilities of wrong doing on the part of
election officials, this suggestion made above must be conceded to be abso-
21
lutely sound, and as much to be guarded against as what Contestant is ask-
ing this Committee and this House to guard against, in this case.
We, therefore insist for reasons herein stated, and which wiil be stated
later on in this brief, that there not being one word or inference of fraud ap-
pearing by the evidence in this precinct, and it positively appearing that each
of the parties to this contest have had counted for them the actual umber of
votes cast for each, and nothing occurring which any rational or unbiased
mind could for a moment claim, has changed the result, the votes of this
precinct should stand Just as they were counted by Sunfleld officers, can-
vassed by the county canvassing board of Eaton County, and later can-
vassed by the Sta'e Board of Canvassers as 174 for Contestee and 104 for
Contestant, leaving as we close the discussion on this precinct the plurality
of Contestee 116, as it was in the first place, and as we claim it should con-
tinue to be in the consideration of all the precincts complained of by Con-
testant.
IV.
Second Ward, City of Charlotte, Eaton County.
As we understand it, the principal complaint made in regard to this
precinct is that one John C. Nichols, who was not a member of the Board
of Election Inspectors, deposi'.ed some ballots which had been marked by
the voters, In the ballot box. True, something is said in Contestant's brief
about the manner in which Mr. Knowles, one of the inspectors, conducted
the election while short of help, in not only delivering the ballot to the
voter, but going over on the other side of the booth and depositing it in
the box. He was doing the best he could under the circumstances, and we
can see no rational ground for complaint in ihis regard.
As stated, the ground upon which this precinct is condemned is that
Nichols deposited some ballots in the. box without any authority to act in
that capacity.
In this case as in other cases Contestant has contented himself with
producing two witnesses, and asks this Committee and House to throw out
this Ward on the testimony of these two, while the Contestee has freely
and fairly come forward and produced six witnesses who participated as
officers and otherwise, in the election in this precinct. Contestee has sub-
poenaed the two aldermen and two clerks and one who was sworn in as an
inspector during the day, as well as this much anathema' ized Nicholas
whose conduct is expected to throw out a nice majority for Contestee in
this precinct.
Let us review briefly the testimony of these wi nesses on the salient
points made. We will begin with the testimony of the Democratic chal-
Inger, F. M. Overmyer, who testified for Contestant. He testifies :hat he
was Democratic challenger for that Ward and that he saw John C. Nichols
take quite a number of ballots as they were passed to him and announce
the name of the vo er and deposit the ballots in the box. He testifies that
as near as he recollects now that Nichols was there from an hour to an
hour and a half, saying: "I might be a little off in that, but that is my best
recollection at this time." (R. 50). A second witness* was produced by
Contestant on this point, viz., E. O. Davids, who testified that he saw John
C. Nichols in this voting precinct receiving ballots and depositing them in
the ballo' box; but he was only in there about ten minutes and hence could
say nothing further on that subject. (R. 93-94). Upon this fiimsy and
uncertain testimony Contestant asks that this Ward with a majority, for
Contestee of 54 votes be thrown out.
Let us now examine the evidence which gives a better understanding of
what actually occurred there. John C. Nichols testifies that he holds the
office of Circuit Court Commissioner, and that he has held the office of Jus-
lice of the Peace and County Clerk and that he has also been Deputy
County Clerk; that he was elected Circuit Court Commissioner at the last
election, (R. 304); that on the fourth day of November he was appointed
County Clerk in place of one E. J. Pray, who was a candidate for the legis-
lature. (R. 305). This wi.ness further testified that Mr. Hamilton, one of
22
the aldermen and an inspector, was taken sick and was quhe sick and did
not assist further in the election that day. When Mr. Hamilton went out
Mr. Knowles asked Mr. Nichols to deposit a ballot in the ballot box and
thereafter he deposited sotee four or five in the box. He saya he does not
think he was there over ten or fifteen minutes when Roy Barber took his
place. Barber was appointed to take Hamilton's place. (R. 305). Nichols
was challenger for the Republican party.
Mr. Hamilton, one of the inspectors, gave evidence in regard to the
election in this precinct and in a clear and straightforward manner
explained what occurred there that day. He says John C. Nichols acted as
challeger for the Republican party. (R. 366). He says that he was taken
sick and got C. R. Barber to take his place. (R. 367).
C. R. Barber, the man who was sworn in to take Hamilton's place, was
produced as a witness by the Contestee and testified that Hamil on
requested him to go to the polls and take his place on the ground that he.
Hamilton, was ill.
Claude S. Knowles, an alderman and one of the inspectors, tes'.ified
that Hamilton acted as an inspector until he was too sick, then his place
was supplied by Roy Barber; that he saw John C. Nichols there and on this
point testified as follows:
"Q. Did he receive any ballots?
A. Yes, sir.
Q. How did he come to do that?
A. I asked him to. It was during the noon hour and there was
several came in there at once and I was busy and Mr. Nichols stood
there and I asked him to receive ballots for a few minutes; he came
inside and received a few.
Q. About how many did he receive?
A. I think in the neighborhood of 5 or 6 or 7.
Q. Then what took place? .
A. Well, Mr. Barber came and relieved him. No, I think not; I
think before that, that I took care of them myself; I think I received
some before Mr. Barber came, after Mr. Nichols took a few."
(R. 386).
Roy S. Preston, one of the clerks of the election, was produced by the
Contestee and gave evidence as to what occurred there in relation to Mr.
Nichols depositing ballots as follows:
Q. During the day there at any time during the noon hour or at
any time did you see John C. Nichols in the inside of the voting
place?
A. I think he was there a few minutes.
Q. What did you see htm doing, if anything?
A. If I remember correctly, he received and put two or three bal-
lots into the box." (R. 394).
The other clerk in this precinct, Herman Qulde, was also produced by
Contestee and gave a straightforward account of what occurred there so far
as he was Interrogated. It is somewhat interesting to note that this young
man is a Democrat. (R. 404). We speak of this fact at this time for the
purpose of showing that these boards were not all partisan boards, but to a
great extent were bi-partisan and no one was trying in any place in this
district to injure anyone whose ambitions led him to compete with his fel-
lows for public office.
Contestant starts out in his brief under this heading (IV) with quite a
tirade on this John C. Nichols. Our experience has been in quite a long
number of years in the practice of law that it is very common to pick out
somebody in every lawsuit to be the "goat." So, enter the "goat." But in
all the 50 pages of cross-examination of this witness, and in everything
they have tried to fasten upon him, he emerges from the encounter with a
mighty little smell of fire upon his garments.
Eaton County has seen fit to repeatedly elect him to public office, and
at the very last election at a time when Republicans fell under the storm
^3
of adverae ballots, KIchoHi came tliroixgh amlling with a good majartty Cor
tbe office for whicb lie was co&tendlng.
Hon. Clement Smith, as pure-minded a man as ever eat in a judge's
seat, after a long acquaintance with Nichols, chose him to act as ceohty
clerk of (he Ooanty of Baton at the time of the rasignatJon of Mr. Pray.
Contestant says in his brief (page 10) that Nichols was appointed county
clerk on the 5th day of November, but did not make it public .until Novem-
ber 14th. This is obviously incorrect, as the Record shows. He was
appointed on the 4 h day of November and began acting immediately.
(R. 305). True, his bond was not executed until the 11th day of November,
but what of it? What connec ion Is there in that to whether Contestant or
Oontestee should have this aeat in Congreas. The effort was made to show
that Nichols was a atrons partisan for Oontes^ee and that what he did was
done for the benefit of Contestee.
Contestant avoids admitting te his brief the fact that Nicbola was a
challenger in Ihe precinct that day, and as such had a right to be bcdaind
the raiting. Contestant further avoids any reference in his brief to ihe
fact that an emergency arose in tbe Second Ward that day mkesre one of
tbe tMetmeo. was taken sick and the other aktorman waa being over-
whelmed with work, when he asked Mr. Nichols to deposit a few ballots In
the box. We do not lielieve thai any such narrow oonstniction can be
placed upon onat laws.
As to the fact of how Ions he was depositing hattots, we cheerfully sub-
mit tlve issue made between the tes Imony 'Of Ov«rmyier and nhe testimony
of the balance of the board, including Nicbote, and how many he deposited.
This Committee and the House will take its choice between the uncertain
and oiifViouMy iucon-ect tes.imony t>f Oviermyer and what the iMUance of
the hoard said about it, as revealed hy the testimony already referred to.
We think this Committee and House wili isave to find that Mr. Nichols
was not present but a few minutes azid -depoeited not to exceed 5 or •S bal-
lots. The last witness puts it 2 or 3. Ni(4io)s himself puts it $ or 6 or .7.
The evidence shows that Nichols did this «t the rsQsest of one of the
aldermen — Mr. Kaowles, and there is cer.alnly no hing in the eviiieBce any-
where which could lead one to think that anything was done there by Mr.
Nichols for the purpose of wronging any candidate for office.
It is tme ttrat our statute forbids any oandidate for ottoe acline an an
inspector, hot cmr court has not yet hehl that this particiikir prevision is so
mandatory as ;o vitiate the entire poU of a preeioct under such cireiHn-
stances as is shown here.
Contestant aigain invokes tke atithDrity of the Kirhy oase in his claim
that this precinct -should be thrown out.
It would simply be an outrage in our judgment o deprive C^testee of
his majority of 64 in this in^ecinct tor the reasons claimed hy Oontestaat.
As we have intimated in o^her places under different boadlngs, we will
Insist later en, that even if it be held that this Kirby oase could technically
be apiflled to these facts, yet that it is the duty of this Committee and this
House to overlook this trifling irregularity so long as thene has nothing
been shown to Indicate fraud or Intentional wrong, and as deng as there is
nothing to show that Oontestee received a stngle vote that did not bekmg lo
him or that Contestant lest a tftagle vote that -did belong to him.
We are constantly surprised by stantements of Contestant in his brief.
He closes his argument in relation to this precinct (hrief, page 12) «with the
foHowtng langiaige:
**The whole precinct TOust be iTirown out, as Ifhe testimony shows
that Mr. Nichols was depositing ballots from an hour to an hour and
a half."
W^en prepondesanee is taken into oensideration. as it suFely must be
•in this as in any other case, hew can anyone claim with any :8hew of candor
that tbe t-estimdny shows any such thing? True, one ^witness did testify lo
that fact — though somewhat uncertainly — while three or foHir denied It posi-
tively and fixed the time at about ^a few minutes. Oontes ant has ihad too
muhh -experience as a lawyer to ^candidly claim that he has proven this 'fact
-24
by the single witness Overmyer, as against the positive testimony of the
members of the board who knew the facts and who squarely contradicted
Overmyer on this point We therefore most sincerely deny that the vo'.es
of this precinct should be eliminated, but insist that Contestee should have
the benefit of his 54 plurality over Contestant, leaving him still 116 plurality.
V.
Carmel Township, Eaton County.
The complaint made in regard to this township may be stated in a few
words: It is to the eifect that the election board permitted a count of the
ballots in the afternoon before closing time at the polls; of the ballots that
had been cast in the precinct up to about 2 o'clock in the afternoon. Con-
testant cites numerous sections of our statute which he claims have been
violated in this precinct. He assumes and takes the privilege of saying,
that the provisions violated here in this township are all mandatory provi-
sions. In fact, we assume from the argument of Contestant that he claims
that all the provisions of our election statute are mandatory. If this be
accepted as true, we shall have occasion to show before we get through tha*
Contestant will suffer as much or more from the application of such a rule
as Contestee. We shall show later on that many hundreds of votes will
have to be deducted from Contestant's vote If it be held that all the provis-
ions of our statute are mandatory.
Now, in this Township of Carmel we find an honest election board made
up of men who are not educated In the construction of our statutes, and if
they were they would be apt to differ on what the statutes mean, holding
an election and honestly trying to ascertain the honest result. In this pre-
cinct, as in nearly all the others. Contestant consents himself with sub-
poenaing one or two witnesses, upon whose testimony he assumes this
Committee will act; though it must be admi'ted that there is nothing in the
testimony of the winesses he did subpoena which differs very greatly from
the testimony of the witnesses subpoenaed by the Contestee.
Willis A. Case was the only witness produced by Contestant to give
evidence of what occurred in Carmel Township at tha* election at that day.
It seems that about 2 o'clock in the afternoon this ballot gox got full, so
that they could not get in many more ballots, it being a patent ballot box
that worked with a crank.
It probably would have been better if they had provided another box
rather than to empty this one out and count the votes, but as the Record
shows, it was all done in the most absolute good faith and with the best
of intentions. Let us now examine the evidence in this particular precinct,
as developed in 'he testimony which Contestee produced.
Cortez Cushing was one of the witnesses produced by Contestee and
he testified that he was a Democrat in politics, that Contestant had sub-
poenaed him as a witness, but after having interviewed him he was no*
sworn by Contestant.. He acted as challenger of the Democratic party
in Carmel township on this day. In the afternoon witness was sworn in
as an inspector and helped count the ballots, and also one Wm Clements
was sworn in. Witness testified that the ballot box was full and it would
take about so many to finish up ihe votes with and that Mr. Ruber asked
witness if he would help count the ballots if they opened the box and he
said he would. The box was a metal box about 14 or 15 inches in diameter
and about 2^ feet high. It works with a crank attached with some roUerB
which rolls the tickets through into the box. It works something like a
clothes wringer. (R. 269).
This witness further testified that one Julius D. Ells was there that
day, was a prominent Democrat and a candidate for register of deeds at
that election; witness heard Mr. Ruber ask him what he thought about
opening the box. (R. 270).
This witness proceeds then on page 270 of the Record to go on and
tell what they did. Mr. Ruber read the names off the tickets and Mr.
25
Clements and witness kept account in a tally book. He testified that tbe
number of Totes received by the different candidates were correctly
oounled; that they tallied correctly as the names were read to them.
(R. 270-271). This witness testified that they all did the best they could
and there was no fraud that he knew of. (R. 271).
Gordon Griffin, the supervisor of this township was called as a witness
by Contestee and gave his version of what occurred that day. He testified
that the ballot box had been locked up wi h the clerk since the last election
and that so far as he knew it contains the ballots that were deposited
there the day of election. (R. 282). We wish to call attention to a
colloquy which took place between counsel in relation to this precinct.
(R. 282, top) when counsel for Contestee made the offer that the box
should be brought in and the votes counted by the election board and
that Con.estee would abide the result. This proposition counsel for Con-
testant declined to accede to.
Mr. Griffin, the supervisor, testified tha'. in the afternoon they dis-
covered that the box began to work hard and it was hard to get the
ballots in, that the ballots would not go down in there. He ;estified that
a man by the name of Spencer was there who was a Democrat and that
this Democrat suggested to witness: "You will have to take ihe 2 o'clock
count, won't you? * ♦♦ We do it in cities." (R. 283).
He testified that it was talked among the members of the board and
that finally they concluded to take the 2 o'clock count. He says that
Mr. Cushing was sworn in by Wm. Huber, Justice of the Peace, and that
also Mr. Clements was sworn in at the same time to assist in this counting.
(R. .283-284). This witness also testified that he consulted with Mr. Ells,
the Democratic candidate for register of deeds, and that Mr. Ells said
that as far as he was concerned it would be all right; witness asked Mr.
Ells whether it would be all right to put Mr. CushiAg in as clerk and that
Mr. Ells said it was; that these two men, Cushing and Clements, were chosen
by the board.
Wm. L. Huber was also called as a wi ness for Contestee and testified
in relation to this matter in Carmel to>\nship. He testified that he knew
the ballot box was being filled and described how the bal ots were put in
the box. He says they talked the matter over wi h those present and that
there was a number present, among them, Mr. Spencer, who was a
Democrat He testifies that they discussed this with Mr. Ells, the Demo-
cratic candidate for register of deeds; and that this count was ordered
in the afternoon for the purpose of finding some means to get along with
the emergency '.hey had. Witness continues:
"We concluded the best way was to call in several extra clerks
and proceed with the count, so I swore in Wm. Clements and Cor^ez
Cushing as extra clerks, one was a Democrat and the other a
Republican. I always had great respect for their integrity."
Record, 291.
Witness continued:
"Mr. Cushing proceeded with the sorting of the ballots, placing
the straight Democrats in one pile and the straight Republicans In
another and the splits in a third pile. * * * Then I swore in
Mr. Clements and we proceeded with the count."
Record, 292.
This witness further testified that he correctly read the ballots and
gave to each man his dues.
Wm. Clements was called in behalf of the Contestee and testified that
he was a farmer living in Carmel township. He described this incident
of counting in the afternoon in substance as follows: That he went up
there just after dinner and the supervisor was alking about the box getting
so full it was a hard matter to get the tickets in; he heard a little talk
after that about emptying the box out and coun ing them and that D. C.
Cole, the clerk, called him and asked him to help count the tickets; that
he was sworn in by W. L. Huber, who was a Justice of the Peace. He
testified that he and Cortez Cushing did the tallying and explained the
26
care they took to get it correct, (ft. 40t)-401), He istlffO testlfled that tlrty
tallied the votes honestly and correctly, giving each the votes they '^ete
entitled to. (R. 401).
It will be seen that tlie Contestee spared ho reasonable pains to show
pn^ the^ Record precisely what this transaction was. The ballot t>Ol gt>:
full. The combined wisdom of l!)emocfats and Repabllcans alike after
considerable consultatloa, determined on the bourse which was adopted.
The count was honestly made — not by llepubllcahs, but by t>emt>cratll and
Republicans. It seems just a little singular that Contestant saw fit to
deprive his partisan friend, Cushihg, of the pHvilege of telling on the
witness stand just what occurred there. It is true that the Bt&ttite provides
that the ballot box shall not be opened dulling th6 i^lection except as
provided by law in cases of adjournments.
And on this language Contestee at oncie jumps to the conclusion ^lat
this is a strictly mandatory provision and if violated the ehttre Vote must
be thrown t>ut. "^e have not in mind novir any Supreme Conft decisions
.which hold any such thing. The fact is that Michigan had a taw istpt^lylng,
however, only to certain large cities, where 2 o'clock C'ottnt by the lnspectm*s
is permitted. It would seem from this statutoty provision that our
Legislature has not considered a count prior to the iKlosing Of the lN>lls
such an extraordinary vital and important thing, or else they Would nevBr
have passed a statute permitting it in certain places.
So far as the conditions found and which appear in the ^etx>rd in
relation to the township of Carmel. there ciertaihly has not as yet been
made a decision in our Supreme Court holding that the law foirbiddlng Die
opening of the ballot box before the polls closed, to be mandatory, and
if violated to vitiate the election.
During ihe counting of these votes there sat there to guard the rights
of Contestant a good, honest, able Democrat. It sttikes us that it is abstird
for Contestant to claim that he was in any "way damnified by any act'on
of the board there that day.
As we have shown Contest ee offered to open u]p this ballot box and
count the votes; but Contestant would prefer to reply Upon co'd technicali-
ties to exclude the vo!e rather than to frankly conie forward and say:
"I want no votes only such ones as were cast for me, and therefore we will
Just see how it stood."
It will be remembered in this connection that Contestant was "present
at the meeting of the county canvassers in Eaton county and protested
against the returns of several of the townships complained of; but was
overruled there by the board which was made up of a majority of his
partisan friends. All we ask is fair play and we believe we are going
to have It at the hands of this Committee and the House.
We respectfully ask that the evidence be examined In oach one of
these precincts complained of, and when it ifi examined only one ookic'.usion
can be reached and that is, that Contestant has had a square deal all the
way through.
We are surprised that Contestant should be -satisfied and 'cotftented
to gain a seat in Congress on the barest, coldest kind of technicalities
without being able to convince any candid man that he had been deprived
of a single vote.
We therefore insist that the 55 plurality "Which Contestee received in
this township should remain standing to his credit, and not be thrown
out on any such evidence as is here presented by Contestant.
VI.
Wineor Townefaip, B8t<Hi Gounty.
Contestant proposes to have the township of Winsor thrown out. wbe)«
Contestee received a plurality of 92 votes. Before entering Into a discussion
of the merits of this proposition we wish briefly to call attention to the
fact that this township was not mentioned in Contestant's original Petition
27
and Notice of Contest, but as a matter of fact the time for taking testimony
on both sides had fully passed* except that Contestant still had a short
time left in which to take evidence in rebuttal. Confessedly the taking of
evidence in relation to this township was no rebuttal.
We realize and concede that the House has the authority here to
consider the alleged irregularities of this township in spite of the fact that
it was not in the original Notice, and in spite of the fact that the time
for taking evidence had gone by before Contestant was notified in relation
to this matter. We say this because we take the position that the House
has unqualified power and au hority to not only regulate the manner
of presenting these contests but to decide them on their absolute merits
irrespective of any other authority, court or other functionary; so we say
that while we concede the power to permit Contestant to bring in this
township at this late day, we simply ask whether under all the conditions
here such practice is fair to Contestee.
It is true that the ballots were not initialed at the precise place provided
for by the statute according to the evidence of the witnesses produced.
The law provides that these ballots shall be destroyed when the box is
needed for subsequent elections. In Michigan an election is held on the
first Monday in April and one was held on thp first Monday of April, 1913,
at which time it was discovered that these ballots had been initialed on the
perforated comer instead of Just below it. The ballots had been destroyed.
The proof — the best proof of this fact had gone up in flames, and when Con-
testee's time for taking testimony had fully passed this new precinct is
brought forward and we are asked to answer the claims of Contestant in
relation thereto.
True, Contestant proposed that the time might be extended for Con-
testee to answer this testimony, but we ai-prehend that it would be no more
than fair to say that a Contestant's main case should be closed at the
time limited by law for the closing of his testimony in chief. It has been
held that the original Petition and NoUce of Contest may be amended, but
we apprehend this was most generally in cases where an amendment was
asked before the expiration of time for the taking of testimony. We are
quite sure that it would be no more than right for this House to say that
when the time for taking testimony in chief has gone by for both sides,
that neither side shall be allowed to introduce new issues and new matters.
But assuming that the House will give consideration to this precinct, let
us briefly review what the witnesses produced by the Contestant said in
regard to this election. It was said by one witness on page 172, of the
Record, that this was an honest and fair election and when the ballots
were counted up there was an honest count made of them; that Contestant
received credit for all the votes cast for him, likewise Contestee. Again
on page 176 of the Record, it appears by the testimony of another witness
that it was an honest straight count, all the candidates given the correct
count of the votes cast for them.
Again on pai?e 178 another witness testified — the one who initialed the
ballots-^that he did so thinking he was obeying the law; that he was acting
in good faith in putting the initials there; that he supiosed that w^as the
lawful place and that it was an honest election. To the same effect Is the
evidence In relation to it found on page 180 of the Record.
When it is understood that our legislature has several times changed the
place where these Initials should go, it is not to be wondered at that the
average untutored election board should get confused as to which is the
proper place, unless they look the matter up each time carefully after an
adjournment of the legislature.
This election board was so careful about these perforated corners
that they put them in another box and saved them. Prior to the amendment
of this section requiring the inspector to write his initials in ink on the lower
left hand corner of the back of each of the ballots and not upon the per-
forated comer, our statute provided that the initials were to be written in
ink on the upper left hand corner of the back of the ballot.
It was further provided that no ballot which is not endorsed with the
initials of the poll clerks as provided in thftt act should bv void and
should not be counted.
2%^
The Supreme Court of the State of Michigan lu the case of
Homing vs. Board of Canvassers of Saginaw Count}', 119 Mich., 51,
in construing the statute which was in existence at that time, beiug Act. No.
190 of the Public Acts of 1891, held that the ballots should not be rejected
where inadvertently the inspector had endorsed the ballot in the lower
right hand corner instead of the upper left hand corner, holding that sc
much of the statute in regard to the particular place of the endorsemeiit
being directory only.
It seems to us that the language of the present statute is so similar
that it is hard to distinguish, but under which it has been held that the
ballots should be excluded if they were initialed on the perforated comer.
It strikes us in effect that our Supreme Court practically, if not actually,
reversed itself in these two cases — that is, holding in the 119 Mich, that the
place where the initials should be placed was merely directory, and hold-
ing in the 161 Mich, that such provision in the statute was mandatory. It
strikes us that the only difference in ^e two provisions is that in the
former it was provided where the Inspector should not place the initials,
while in the later statute it has been provided that he shall not place
the initials upon the perforated comer.
But be that as it may, the Record shows here that neither one of
these parties was damaged or benefitted by this irregularity, and we shall
insist, as before stated, that even if it be held that the ballots of Wfnsor
t/>wDship could be thrown out by reason of this decision in the 161 Mich.,
cited and quoted from by Contestant in his brief (pages 16 and 17), yet thai
this harsh rule should not be applied by the Committee and the House in this
case — it not appearing that any fraud or intentional wroug was dune, ant)
that it not appearing that anything occurred there which in any manner
changed the result of the election, or affected either candidate one way or the
other. As before stated, we shall have occasion to cite some precedents aixd
authorities bearing upon the proposition that the House is not bound hy
state laws and decisions in deciding congressional contests.
VII.
Second Precinct, Second Ward, Battle Creek, Calhoun County.
As we understand it, this is the last precinct relied upon by Can es>i-
ant to unseat the Contestee in this conest. As has been before stated, the
chairman and perhaps the strongest man on this board of county can
vassers, was a Democrat. He testified at great length on what occurred
there in relation to these returns from Battle Creek. We call attention to th*^
testimony of the different witnesses summoned by Contestee In relation o
this precinct. This testimony will be found in the main between pages 439
and 470, but it can be summarized in a very few words.
When the returns were made from this precinct it was found that from
governor down, none of the candidates had received credit for the straigl t
votes cast in the precinct, and as it effected the parties to this Contest the le-
tums show that Contestant had received only 23 votes and the Contestee
had received 31 votes. This was an obvious error as the total vote of the
precinct was something like 370 or more. The question then was, what to d .
The board was in session at the city of Marshall. Contestant appeared there
and Contestee was there — perhaps not on the same day — discussions weio
had pro and con and finally it was decided that the county clerk should
summon this election board to make a corrected return. They came aL.l
in the presence of the board of county canvassers, the boxes were opened
and two significant bundles of ballots were found which had marks on
the outside; one bundle being marked "R Straight" (meaning Republican
straight), while the other bundle was marked "D Straight" (meaning Dem-
ocratic straight). On the one bundle were the figures 66 and on the other
bundle were the figures 38. This added to the vote of each party to th:j
contest, making the Contestant 61 and the Coniestee 97, which 'was un-
doubtedly correct.
29
After this the controversy continued and this board was sent for
again, the box again opened and further investigation made. At this second
meeting a memorandum was found which contained the requisite informa-
tion. This memorandum was identified by one of the members of Ihc
board — that he made it and placed it in the ballot box. This memorandum
corroborated the figures heretofore found on the two bundles of ballots,
viz., it corroborated the conclusion the Contestant had received 38 straight
votes and 23 split votes, making a toal of 61; while the Contestee had re-
ceived 66 straight votes and 31 split votes, makicg a total of 97.
The Contestee, therefore, had a plurality in this precinct of 36 votes.
Now it is the claim of Contestant as we understand it, that this canvassing
board had no authority to make this change, or rather that the election
board of the Second precinct of the Second ward of the city of Battle Creek
had no authority to correct its returns.
It strikes us that no broader authority could be imagined than what
is given the board of county canvassers to correct returns of this character
than is given by Section 3665 (Sec. 239, Exhibit 67) of Michigan Compiled
Laws of 1897, quoted in full in Contestant's brief, page 20.
To sustain his contention Contestant ci'es the case of
Roemer vs. Canvassers, 90 Mich., 27,
where some strohg language is used relating to the scope of authority of tli =
board of canvassers under the statute as it then existed. It strikes as
that it was a trifle unfair for Conteslant to cite the case and rely upon !♦.
just before mentioned. This case it will be seen upon investigation 'was de-
cided In 1892 before we had any such statute as we have now in r'tlation
to the power of the board of canvassers. The statute quoted by Contestant
is comparatively a recent one, and it provides among other things languago
that was not in the law at the time of the decision of the cases cited by Con-
testant :
"Said board of canvassers are hereby empowered to summon th«j
person or persons having the boxes containing the ballots cast at said
election and the keys and seals of said boxes, or having such returns
or the poll books or tally sheets used and made at such elections, to
bring said boxes, seals, keys, returns, poll books and ta'ly sheets
before said board and said board of canvassers are authorized to open
said boxes and take therefrom any hooks or papers hearing on the
count and return of the election inspectors of such election districts,
or the returns of such central counting board, but they shall not it-
move or mark the ballots therein. Said board of canvassers may
summon such election Inspectors, or central counting lioard, befoie
them and require them to make corrected returns in case, in its
Judgment, after examining such returns, poll books or tally sheets,
the returns already made are incorrect or hicorapiete, and t.hey shall
canvass the votes from the corrected returns."
Michigan Compiled Laws, 1897, Sec. 3665 (Sec. 239 of Ex. 67 in
this case).
No such language as this was contained in any s atute under con-
sideration in the case of Roemer vs. Canvassers, 90 Mich, 27, cited by
Contestant, for the simple reason that the Roemer case was decided long
before we had such a statute as we have just quoted from.
We think the s atute quoted from gives the board of county canvassers
and the board of election inspectors abundant authority and power to do
precisely What they did in this case. It will be noticed that the statu e
provides that the board of canvassers are authorized to open the boxes
and take therefrom a7iy books or papers bearing upon the count and
returns, etc. They found some papers, they took them out and from them
were able to make a consistent and correct return.
It strikes us as being absolutely absurd to say hat under this statute
this board- of county canvassers exceeded their authority; everything goes
to show here that Contestant got a square deal and received in the final
count every single vole that he was entitled to, and that Contestee received
no more than he was entitled to.
30
Contestant's vote was swollen by 38 in this re-count, while Contestee's
vote was swollen by 66; but in a precinct where 370 votes were cast and
only a total of 54 returned for these two parties who were candidates on
the Republican and Democratic tickets respectively, showed beyond perad-
venture that a mistake had been made somewhere by the board of election
inspectors. The statute above quoted points out the manner of correcting
a mistake of this character, and they did so. Gentlemen of the highest
character participated in this correction, and it is surely begging the
question to a surprising extent for Contestant to claim that Contestee
should be deprived of the 36 plurality which he secured in this precinct.
We cannot help but observe in closing that if we are correct in our
assumption that Contestant has cited a case, to sustain his contention
under this heading, which was decided before we had any such sta.ute
with the provision we have quoted here, and did so knowingly, then it
might be well to examine very critically any assertion he makes in relation
to his claims to a seat in Congress.
Contestant attempts to argue under this heading that the returns being
fair on their face, the board of county canvassers had no authority in the
premises. The statute says that if it shall be found that the re 1 urns are
missing, incomplete or incorrect, or for any other reason it is found
necessary, etc. Certainly the returns here were obviously incorrect when
an examination showed that from governor down straight votes had not
been counted for anybody on any ticket, but where the precinct, as sta'ed
before, showed a total vote cast of something like 370.
Again Contestant insists because this paper which was found in the
box was one not necessary to be kept, the board of canvassers had no right
to predicate any action upon it. The statute says, "any books or papers
hearing upon the count." It is Contestant's personal conclusion that
because such a paper is not necessary to be kept, that therefore the board
can make no use of it.
We are perfectly confident that there is no possible moral or legal
reason for challenging the vote as finally canvassed from the Second
Precinct of the Second Ward of Battle Creek.
As before stated, we assume and have a right to, that Contestant
has abandoned any claim of irregularities in other townships not discussed
in his brief, and this completes a review of the precincts which he has
discussed.
IRREGULARITIES CLAIMED BY CONTESTEE.
After Contestant had filed his petition or notice of contest, Contestee
made answer thereto, which answer will be found in the record immediately
following Contestant's petition. The theory of this answer, stated in a
few words, was and is that the irregularities claimed by Contestant in
his petition were more or less a common thing throughout the entire district
at the November election of last fall; that irregularities could be found
in precincts which were carried by Contestant as well as those which
were carried for Contestee. It is the theory of the answer that if
irregularities are to militate against the validity of the election for Con-
gressman, then those precincts which Contestant carried in which irregu-
larities occurred must be thrown out if those carried by Contestee are
thrown out.
To state it in other words, the Contestee does not claim that there
were any irregularities in this election which should affect the vote between
them; but simply claims that if the claims of Contestant are to prevail,
and certain precincts claimed by him thrown out, which Contestee carried,
then likewise the precincts carried by Contestant which have in them
irregularities should also be thrown out. It is not claimed by Contestee
that any of the precincts in which he found irregularities should be thrown
out unless, as stated before, the precincts named by Contestant are thrown
out.
21
It will be claimed and shown that it this rule is adopted, then that
Contestee will actually profit by it rather than suffer from it. With this
understanding in mind, let u^ review briefly some of the precincts carried
by Con!estant where irregularities were found on the taking of this evidence.
I.
Seventh Precinct, CHy of Kalamazoo, Kalamazoo County.
James B. Chase, one of the inspectors of election in this precinct,
testified that the clerk and the city attorney were in the booths two or
three different limes;. that there were several there, that he couldn't say
just who they were now, but different ones came into the back door; that
there was nothing to hinder them coming right in, that the doors were not
locked. (Record, 488).
This wi.ness further says that there were no challengers of either
party, and that the voters who received assistance In marking their baUbts
did not have any oath administered to them. (Record, 489).
B. O. Bush, an inspector of election in th?s precinct, also testified that
he saw women behind the railing, and that a woman by the name of Kiss
Marsh assisted in handing out ballots to the voters; that she handed the
ballots instead of the inspector, and ,?did this several times; that she was
in no way connected with the board of elec ion inspectors. (Record, 513).
(This fact Miss Marsh in her testimony denies.)
In this precinct Contestant received 196 votes and Contestee 157 votes,
giving Contestant a plurality of 39 vo es.
II.
Texas Township, Kalamazoo County.
William W. Allen testified that he was one of the inspectors at the
election that day. and among other things said that the bo«rd went to
supper after the polls were closed, and before they bad made their count;
that they had started the count, but had no finished it. He testified that
all the board went to supper; ihat after they came back from supper they
proceeded with the count. (Record, 495).
T^s witness fur. her testified that voters who asked for assistance
and received it were not sworn. (Record, 496).
In the township of Texas, Contestant received 66 votes and Contestee
55, giving Contestant a plurality of 11 votes.
III.
Second District, Kalamazoo City, Kalamazoo County.
Frank A. Newell testified that he was one of the inspectors of election
on that day, and testified to a situation as follows:
"Q. Did you see any party charengers in around behind the
booths assisting voters there that day?
A. I didn't see them assisting, no, I am of the impression there
were.
Q. What did they do? Did they go into the booth with the
voters?
A. No, sir; not as far as I know of.
Q. What did you see them do?
A. I didn't see them do anything; I overheard it.
Q. What did you hear?
A. I heard some one call for instrucMons, and some gentleman on
the back of the booth told them what to do; they were perfectly
innocent of what they were doing, and as soon as we heard it we
stopped it; one of the gate keepers he said was giving instructions
back there; when we were told of it we stopped it immediately.
Q. Headed it off, eh?
32
A. Yes, sir; as soon as we knew it.
Q. How long was you back there?
A. It was not to exceed an hour, anyway.
Q. Was he in any way a member of the board?
A. No, sir."
(Record, 499).
In this precinct Contestant received 193 votes and Contestee 124,
giving Contestant a plurality of 69 votes.
IV.
First Precinct, Kalamazoo City, Kalamazoo County.
John H. Rockwell, a clerk of the board in this precinct, testified that
there were a couple of ladies in the room behind the railing in the voting
place; that they were in the same room where the booths were. (Record,
600).
In this precinct the Contestant received 140 votes and the (^ntestee
93, giving Contestant a plurality of 47 votes.
V.
Third Precinct, City of Kalamazoo, Kalamazoo County.
Norbert Wheeler, chairman of the board of inspectors of this precinct,
testified that there were voters who applied for instructions as to marking
their ballots; that there were six or seven of them; that they received
instructions, and that there was no oath administered; that there were
suffragettes at that voting place allowed behind the railing; that there
were two of them. (Record, 502).
In this precinct Contestant received 122 votes and Contestee 113, giving
Contestant a plurality of nine votes.
VI.
Fourth Precinct, Kalamazoo City, Kalamazoo (jounty.
Charles H. Little, an inspector in this precinct, testified that ihere were
voters applying for instructions as to how to mark their ballots — four or
five in number, and that they received instructions or assistance, and taM
no oath was administered. (Record, 503).
He further testified that there were women behind the railing that day
at the polling place; that there was ooe there all the time, and he tbouglt
there was another lady there part of the time; and that they were admitted
behind the railing. (Record, 503, 604).
In this precinct Contestant received 194 votes and Contestee 744, glvin/.
Contestant a plurality of 50 votes.
VII.
Tenth Precinct, Kalamazoo City, Kalamazoo County.
F. B. Godfrey, one of the inspectors in this precinct, testlfiei; thai tney
had applications from voters for instructions as to how to inark th<^ir
ballots — he thought four or five; that no oath was administered to them.
He further testified that women were behind the railing at *bat votii^g
place, and testified that he thought it did no harm. (Record* 505, 506).
In this precinct. Contestant received 189 votes and Contestee 115, civiug
Contestant a plurality of 74.
VIII.
Ninth Precinct, Kalamazoo City, Kalamazoo County.
Frank C. Walters, a voter who was present all day at this proclnet, tt«?-
tified that there were voters there who asked for assistance after the> got
33
in the booth, and that they were assisted, but no oath was admiulatered Ic
them. He testified that while there were women there, they were not behind
the railing. (Record,507).
In this precinct Contestant received 175 votes and Con testes 151, giviug
Contestant a plurality of 24.
IX.
Twelfth Precinct, Kalamazoo City, Kalamazoo County.
Fred C. Waterman, an inspector of election in this precinct, testified
that there were voters who applied for assistance as to marking IbeJr ballots;
that there were about four of them; that he was not acquainted with any of
them; that they received the assistance, but that no oath was administered
to them.
He further testified that at this precinct they allowed women behind tLA
railing during the day, and that they were in no way connected with
the board of election inspectors. *
In this precinct Contestant received 122 votes and Contestee 78 vote^,
giving Contestant a plurality of 49 votes.
X.
Thirteenth Precinct, Kalamazoo City, Kalamazoo County.
Ernest Wise, a member of the election board in this precinct, testified
that he saw voters apply for instructions as to how to mark their ballots*:
that there were four or five of them, and that they received lnatructiont=
by himself and one other of the inspectors, Charles E. Dill; that they Lad
no challengers of the different parties theie; that there was no oath admin-
istered to any of the voters who received assistance.
He further testified that there were women sitting behind the railing,
that there were five or six of them, and they came in two relays, and re-
mained at the voting precinct all day. (Record. 530, 511).
In this precinct Contestant received 250 votes and Contestee 160, giving
Contestant a plurality of 90 votes.
XI.
Fourteenth Precinct, Kalamazoo City, Kalamazoo County.
George Thayer, an inspector in this precinct, testified that voters ap-
plied for assistance in this precinct, that there were two anyway, and he
presumed there were more; that there were no one he knew; but that tmy
went in the booth and inquired for help, and the chairman of the board
and another party went in inside the booth, and what they did there witness
did not know; but that he heard no oath administered to any one who appiitd
for assistance; that there were women permitted behind the railing of the
voting precinct; that there were two most of the time, and a part of th«^
time three. (Record, 512).
In this precinct Contestant received 179 votes and Contestee lOO, giving
Contestant a plurality of 79 votes.
We will simply observe, in closing these quotations from the evid-jnce
in Kalamazoo county, that the precincts wherein these irregularities occurred
gave to Contestant a plurality of 491 votes over Contestee.
xn.
Township of Camden, Hillsdale County.
Frank Fast, one of the Inspectors of election in this precinct, testified
that when they were counting the ballots in the evening the people came
up on the stage If they wanted to, that they did not keep them off, that they
tried to do so in the start, and that people cotild walk right up there.
and there were several came up and stood around. (Record, 547).
34
Harmon Crane, a voter in that towniihip, testified that he wbb m
there while the counting was in progress, and that he saw people on the
stage, where they were counting, outside of the inspectors of election; thai
he was in there twice, and on both occasions there were outsiders on the
stage where this counting wa^ going on. (Record, 548).
Itf this township Contestant received 119 votes and Contesteo 96 votes,
giving Contestant a plurality of 23 votes.
XIII.
Township of Moscow, Hillsdale County.
Miles H. Bleech, a clerk of election in fhis precinct, testified that on*^
of the inspectors of this precinct did not assist in the count, that he was
not able to by reason of his condition.
Witness testified that he heard he had been drinking, but from his ap-
pearance he would say he had been drinking. That he saw one Fred Ric*
behind the railing. (Record, 549, 550).
Lafayette Sigel, another clerk of the election in this precinct, testl4ed
that this inspector. Art Smith, in trying to count the ballots, had some of
them on the floor, and the table was not large enough to hold them; that
he did not assist in the count until it was closed; that one Fi*ed Rice (w>^o
was in no wise connected with the board) came inside of the railing while
they were counting, and that he picked up one ballot. (Record, 552).
This witness further testified that during the noon adjournment the
ballot-box was not kept by any member of the board, but that it was left in
the hall at the polling place, but that the hall was locked up. (Record, 552.
553).
In this township Contestant received 102 votes and v'ontestee 45, giviag
Contestant a plurality of 57 votes.
XIV.
Township of Wright, Hillsdale County.
O. J. Gleason, the supervisor of the township, and therefore chairuan
of the board, testified that during the noon adjournment the ballot box ^-as
left in charge of the gatekeeper while the board went to dinner, and thnt
the hall was not locked up. (Record, 554).
Jesse Barber, another inspector of election at this precinct, testified
that at the noon hour they had an adjournment for the purpose oC goi:iR
to dinner; that the box was left right there, and the gate keeper stayed
there.
He further testified that he does not think the box was locked, that ho
did not have the keys or the seal, and that the clerk had the keys, but that
Mr. Gleason, the supervisor, had the seal. (Record, 582).
In this precinct Contestant had 200 votes and (^ontestee 83, ^.tving i on-
testant a plurality in this precinct of 117.
XV.
Township of Cambria, Hillsdale County.
Kay Smith, a clerk of the board of election in this precinct, tei«tifi«^ hat
one Payne assisted in checking, but that he was not sworn in as an inspector
or clerk; that he remained with the board and ai:»sisted in checking unci)
the canvass was completed. (Record 572, 573).
Pasme. himself testified on this subject as follows:
"Q. You were not sworn before you commenced talljring?
A. No, sir.
Q. And had not been sworn to attend and act as clerk or inspector
up to that time?
A. No, sir.
Z6
Q. Now, you tallied for Mr. Fink and In Uis p2ace ^or alwut hew
long?
A. I should judge an hour.
Q. Did you tally for anybody else?
A. Yes, sir.
Q, Who?
A. Mr. Smith.
Q. He was the other clerk of the election?
A. Yes, sir.
Q. How long do you think you tallied for him?
A. Well, of oourse, I don't know, I can*t call to mind offhand.
I should fiay I worked an hi)ur for Mr. Pink and was off an houi,
then took Mr. Smith's place possibly an hour; I will not say." (Rec-
ord, 576).
In this township Contestant received 135 votes and Contested 7^ ^otee,
giving Contestant a plurality of 65 votes.
XVI.
Township of Reading, Hillsdale County.
Jay Campbell, one of the inspectors of election, testified that they held
the election in the village hall, a&d that it was upstaird; that the haUot box
in that precinct became filled up so they had to get another box, and tney
had another box brought; it was a wooden box, nailed up, with a alot cut
into the top; but that there was no lock on this box. (Record, G76).
The witness further testified as follows:
Q. Were there any electors to whom their votes were delivered by
the members of the board at any other t)luce than wU.hIn th<) railing?
A. Yes, sir.
Q. (jO ahead and tell the circumstances of thai.
A. Well, our election took place on the second floor.
Q. In the town hall?
A. Yes, sir, in the village hall. They could not get up there and
they had spoken to some one and asked If there was not some wn>
they could vote.
Q. That question came up before the board?
A. Yes, sir; and they agreed, all the challengers, did, and there
was no objection made whatever.
Q. After that had been determined by the board, what was done
with reference to providing them with ballots?
A. The two challengers went down, and myself, and Mr. Northrop,
I think, and I took the ballots with me, three in number, and they
were on the sidewalk at the foot of the stairs, and they voted there,
and their ballots were folded up and handed to the clerk.
Q. What did he do with them?
A. He put them in the ballot box, handed them to the chairman.
Q. Took them back upstairs?
A. Yes* sir.
Q. And put them in the ballot box?
A. Yes, sir; I remember they were put In the ballot hot."
(Record, 676).
This witness further testified that several voted who were not reg-
istered. (Record. 576, 677).
This witness further testified that possibly the gate-keeper might have
helped unfold some of the ballots when they were counting in the evening,
that his best recollection was that one of them did assist in that way.
(Record, 577).
E. R. Galloway, the supervisor of the townahip, and therefore chairman
of the board, testified on this subject of distribu.ing ballots on the street as
follows :
36
«i
'Q. During the day, was there an application for the right to vote
on behalf of certain men who claimed they could not get up in the
polling place?
A. Yes, sir.
Q. How were they permitted to vote. If they were permitted to
vote?
A. The request was made by a man who stood outside of the
railing, and the question was put to the board whether they would
allow them to vote, and the board consented. The question was put
to the challengers, and they consented. Then I told the senior justice,
and the next Justice of the peace, who would be deputy clerk, and
the challengers, to go down on the street and take the ballots."
(Record, 585).
In this township, the Contestant received 183 votes and the Contestee
122 votes, giving the Contestant a plurality of 61 votes.
We also call attention to the irregularities In the First Ward of the
city of Albion, Calhoun county, (R. 467-468); also irregularities in the
Second Ward of the same city. (R. 476-477); also irregularities in the
Fourth Ward of the same city, (R. 484-485), all three of which wards gave
Contestant a plurality. These irregularities refer to the carrying of the bal-
lot box before the board had gotten through with their work in making up
the returns of the election in these precincts.
Reviewing Just a moment the irregularities in Hillsdale County, we
find that the townships reviewed gave Contestant a plurality of 323 over
Contestee. This number added to the pluralities given Contestant in the
precincts reviewed in Kalamazoo County, which was 491, makes a total of
814 votes in the two counties are claimed by Contestee In townships
carried by Contestant.
We have thus reviewed briefly the evidence relating to these irregu-
larities. As stated before, it seems that Contestant takes the ground that
substantially all of our election law provisions are mandatory, and that if
violated, however innocently, the poll of the entire precinct should be
thrown out.
We wish to call your attention to some provisions of our statute which
have a bearing upon the irregularities enumerated on behalf of Contestee
here, and which Contestee claims should be operative to exclude the vo^e
of such townships, providing, of course, as stated before, that the different
sections of the statute invoked by Contestant should be held to be operative
to exclude the vote of townships and precincts carried by Contestee.
Our general election law provides as follows:
"In all townships and all voting precincts in cities, the township
board of each township, and the various officers whose duty it may
be to designate and prescribe the place or places of holding general
elections in the several cities, wards, election districts, and voting
precincts throughout the state, shall provide for and cause to be
erected in the room where elections are to be held a railing or
fence four feet in height, which railing or fence shall be placed
through and across the room, and shall cause ga'es to be erected In
said railing. The entrance gate shall be in charge of a gate-
keeper appointed at the opening of the polls by the board of
election inspectors, and duly sworn to allow no person to pass
through said gate and enter said railing except as otherwise provided
in this act. except to vote or to assist some elector in the preparation
of his ballot, as provided in this act, and no person shall be allowed
to be inside of said railing, except to vote, or to assist an elector in
the preparation of his ballot as hereinafter provided," etc.
Section 3631. Miller's Compiled Laws of Michigan. (Being Section
21 of Exhibit 67 in this case).
And further it is provided by our statute, in referring to the duties of
the gate-keepers:
'87
^TtsBT sliAll iiave dnrrge of amd keep the sates %t polling rj^laees
and .'cAiall. not Alkrw jaiyferaon ^o approach witkin the railing pro-
Tided tor in 'sectiDn; Bizteen, except these i authorised' by .law, aoul
qaallfled siedtors, wtaom tiler ehall allow to pass through <the gates
mnd aHiTiraicfa the ballot box xur iMoces .for the purpose of voting; and
.rttey shall aiftmit one elector at a tdane only Ao -rote, and «hflXl cause
. said tiBCtsr to rettre ^ettfaDiit the ga4:e and -^railhtg as soon ad he has
voted; aund^ax) pflBBOBL sfaail hi>any)'iiHUMier Interfere with a 0ate-
keeper of election in the discharge of his duty, and it "rtiall he
uolawftil'for the sste-keepers to aid,. assist^ >8ag8Bst»' advise or ^ entreat
' an cdeclnr to prepaid his battotnhia psvtioiiter maaner, 'lor to^ oiMpee
0r attODpt -to ooereoian 'Ciector iin any way to roteor >to ra<i«iiD
-fmai votiiKg'lor any -particMar fieraon tir party," etc.
^Section '3^49, Miller's t3ompiRd liaws of Michigan (tpeisip Beetlen'89
of E^rMbit ^T in this oase).
' Again, >aur <elitt(l«n law .pnoirlcheB:
""No baHot shall* he distributed by aur person X)ther than tme t)f
the Inspectors tJt election, nor. in any place ^nccept wittiln tSie railing
of the vxrting room, to electors about to vv>te. and no ballot which
has notthehtitials of. a meTiiber of the board t)f election writteii .by
snch member on the back thereof shall he t>^iaeed in It he ballot bol.*'
Sect:k>n 36.40i, llUler's Compiled .Laws of Michigaa, r( being: Section
80 x>f said BTbaiit 67 in this jcase). •
In speaking about what shall be done wtth the billot box at the'tAine
of the noon adjournment, we CAW la^tentlon to
Section aes? and ^638, Miller's OoatpUed Laws of the State of
Ifichigan, (being Sections 27< and K» bf :Exiiiblt €7 in this case).
It will be seen by these ezoerptstof.Jsnv whikeh we jfaavei qiioted that^it
is held by onr statue absahitely antawtulto penult a«iy -p^i^MA ^'hehiad
the railing exoept those aUtboarisedi by the s atiate, .4egal ifoters, etc. Is
this proTision nnuDdatorF? We apprehend tibat reoutestaat -will ifilaian that
this partidnlar provision is sot. Bat '.it s.iitoeB us ttfttlif the different pre-
visions of the law relied upon by contestant are to foe beld maiBdatory,-then
most assuredly this provision prohibiting' uraauthorizedtpmrBons to (go'lfiehind
the railings and be and remain tliere iie.au«da'i»ry. \We insist/ thereflore.
that these irregnlarities hariag been siiowing'Jxi rthese'diflerent pvednets
on behalf of Oeateateer aadithe evidence ttnarellation-'tknRieto being >ihi-b-
stantially wholly uncontradicted: that OoEKtestamt IsherDld ^e- deprived nf the
491 phiralMy wibteh he xeoeiwd. in the <c«nnty lof JCalamasoo, where this
practice bf^enaittiskg txtlnrs heaides those leeatiy.authorteed to d^etthsreto
be and remain behind the railing of .the eles km place, prevaiied in quite
a large number of precise^ s, as we have slrownihy reference to the record.
vNow, it will not be (Bair, «bd'we «ppitebend it will not 4be done by
this CoiBinittee, to hold portions' of «ur 'stainite • mwndatory on one -tflde and
not upon the other. It may be urged that-vur Supreme Ccurt has not
yet held this particular proTisien '( relating •' to others being Mhiad the
railing) to be mandatary ; but have we not a rfgtit to conclude j'udging
from o^her holdings by "owrr "courts, that^they ^e^.d eo hold if tWs precise
guestion came up before them"?
We are not unaware that Oontestamt will- cteim that w^ have a statute
which Justifies this conduct, being Section 28" of AoC No. 196, Public Acts of
1891, as amended, which provides, in substance, that at every election
each of the political parties, and any organization or committee of citizens
interested in the adoption i>r defeat of any measure to be vo'ed for -or
upon at any election, or Interested in preserving the iruri+y of elections
and in guarding against the abuse of the elective franchise, shall have
the right to designate and keep not exceeding two challengers at eich
place of voting, who shall be assigned such -positions immediately adjoining
the Inspectors inside the polling place as will enalrle them to see each
38
person as he offers to vote, and a seat and table or desk on which he may
write within the railing shall be furnished for the accommodation of one
of such challengers, and he shall have the right to inspect poll lists," etc.
An examination of this statute will show that it contains this proposi-
tion: that each political party, or any organization or committee of citizens,
shall have the right to designate and keep two challengers at each place
of voting, etc.; that one of such challengers may go inside the railing,
and the other have a position assigned immediately adjacent to the
inspectors.
The statute goes on to provide what the credentials of such challengers
shall be; that they shall be signed by the recognized chairman of such
committee or organization interested, etc. No such course as this was
adopted in Kalamazoo city, where these objections are raised. There were
no challengers appointed. They came forward with no credentials. These
ladies, while what they did was done perfectly innocently, and with the
purest of motives, had no more business behind those railings than any
citizen of Kalamazoo city. Understand, now, we do not claim that these
precincts should be thrown out unless this Committee and the House shall
throw out other precincts where no worse conditions existed than existed
in eight or nine of the precincts of Kalamazoo city, as we have shown by
the evidence. We cannot see how counsel can claim that the statute
above referred to can in any way cure this trouble. There is a way
pointed out in this statute how certain persons may have the right and
privilege of being present at such elections, and one of them at least
behind the railing. This statute was absolutely ignored; and, as s'ated
before, we cannot see how this would change the election statute which
provides no one shall be admitted behind the railing.
We have also quoted the law above refverring to the distiibution of
ballots. Contestant claims that the township of Sunfleld should be thrown
out by reason of the provisions of Section 30 of Exhibit 67 in this case,
because Albert Sayre, who was an authorized person, distribut^^d uallois
But it must not be forgotten that this same section ijrovides that the=?e
ballots shall not be distributed in any other place excepting the voting place.
And calling attention now to the fact that in the township of Readin;; :oit.^
of these ballots were distributed downs' airs and on the streets, if Sunfield
is to go out, why should not the township of Reading go out, which e<ave Con-
testant a plurality of 61?
Much has been said about the unauthorized handling ol balluU by per-
sons who had not been duly sworn, and a8^iisting in the count, &c. if th^ ni*?
is to be applied against Contestee, what about the township of Cambria,
where a total outsider. D. Payne, assisted the board in the count? In this
township Contestant received a plurality of 65.
U will also be remembered that in the township of Keadiu,;, a;itauy
referred to, which Contestant carried, a gate-keeper assisted in the coun\
And so far as the care of ballot-boxes were concerned, the staUite i^
very strong if literally interpreted and held to be n\audatoiy. in Uie
township of Wright, where Contestant received a plurality of 117, the baMot
box was left in the care of the gate keeper duriut? the noon adjourLmeni,
and the hall was not locked. If these provisions of the .statute are m^u-
datory, and should be applied in this case, then should uot the pluiality of
117 which Contestant received in the township of Wright be thrown oui?
If it is unlawful to have others besides voters and officers behind the
railings during the election, then tliere was an irregularity in the township of
Camden, where outsiders were permitted to mingle with the ofilcers v he
were counting the vote, and the 23 plurality of Contestant throvvn out in
that precinct.
We also call attention again to the conditions which existed in the t;wr.-
ship of Moscow, where Contestant received a plurality of 57, where one
of the inspectors became intoxicated, as we think the evidence fairly siiowAd,
and an outsider came in behind the railing (Fred Rice) and did m^re or
less meddling, though he was totaliy an outsider, with no autlioiity wb-i^-
ever for being there or for participating in the least.
Now as to the point of swearing illiterate voters, &c. It is true the
statute provides, as claimed by Contestant, that before a voter is reudercd
39
aBsistance he should be 8worn» except in cases where his disability is appar-
ent to the board. We have simply to say on this point that if this rule is
invoked by Contestant as a mandatory one» then as shown by the Record
Contestant will lose more votes by the application of this statute as a man-
datory one than will the Contestee. We have shown more vo'ers who were
permitted to vote in Kalamazoo County in precincts carried by Contestant
than Contestant has shown in Eaton County or any other place.
But, as we understand it, Contestant claims that such votes should
only be withdrawn to the number of actual infracTious of the la .v. ^f tLat
rule were followed, we apprehend that Contestant would suffer more from
its application than would the Contestee.
We do not believe, however, that Contestant will insist upon this point,
as it most certainly opera' es with greatest severity upon him.
We have no sympathy with the contention that an election board must
under all circumstances complete the count without any recess or otiier ad
journment; at least, we do not believe any court would throw out n pi*^
cinct where such action had been taken in good faith. We do not be-
lieve there is anything in the law which would throw out auy preciuU
because the canvass had not been begun immediately after the dose of ti.e
polls and continued until all the votrs were counted.
Considerable is said by Contestant about the adjournment that was hac*
in the township of Sunfield (which we have shown was only a briuf one) but
m the township of Texas, a township carried by Contestant, we have ahown
an adjournment was had (Record 495) before the completion of th& couiit.
Considerable complaint is made by Contestant because John C. Mchols
deposited some five or six ballots in the ballot box in one of the WHids in the
city of Charlotte; upon the theory, we presume, that he was an unauthorizid
person handling ballots. But, as stated before, what about the a^uistance of
D. Payne in the township of Cambria, and the Kale keeper In the township
of Reading? Those two townships gave Contestant a plurality of 126 votcf-.
To some extent this is true of the handlinj;^ of ballots in the township of
Moscow, where Contestant received a plurality of 57 votes.
We shall close this branch of the case by lucidly stating our position
once more.
In the matter of outsiders bei^g behind the railings, Conicstee has shown
this condition to exist in precincts sufficient to take away from Contestant
something like 400 of his plurality, which if transferred to I'lont.estee wo ild
increase his plurality to something over 500 instead of 116.
In the matter of the swearing of illiterate voters who requested assist-
ance, the showing made by Contestee is far in excess and more stiious
than that shown by Contestant, though as to the actual number Rhown by
each we have not now at hand a mathematical compilation; for one reason,
because we do noL understand that Contestant is insisting on that phase of
the case.
In the matter of unauthorized persons handling ballots, It st^^ms %.o us
we have shown that more precincts were affected by this irregularity 'jarrind
by Contestant than those carried by Contestee; and the number of voies, ap
we have shown, which should be excluded if such a rule is applied is larger
than those shown by Contestant.
In the matter of the care of ballot boxes during noon adjournmen*-', tiie
Contestee has shown that township3 carried by Contestant did nut live up
to the statute In that regard.
The suggestion might be made right here that If irregularities are sought
after, we believe they could be found in almost every election precinct in the
Third Congressional District of Michigan; and we believe that we are not ex-
travagant in our statement when we say that tiiey could be found in every
precinct in the state of Michigan, if not the entire T'nion.
Contestant asks that the pluralities received by Contestee in the five pre-
cincts of Eaton county, and the one In Calhoun, be thrown out. This would
be a total of 397 plurality. Contestee insists that it our statute in *ts several
provisions is to be held to be mandatory, so that each precinct where iiTrig-
nlarlties have occurred be thrown out, then he asks that the several pre-
cincts in Kalamazoo and Hillsdale counties, aggregating S14 as tlie Contest-
ant's plurality, be thrown out, which would still leave Contestee a piuiality
of something more than 400 votes.
40
We have made these figures on pluralities rather than taking tiie total
vote for each candidate in each precinct, the result of which fiKurin^ would
be the same, as we understand it.
Therefore, if the irregularities unearthed by Contestant be set o-'cr
against the irregularities unearthed by Contestee, so far as any cl5»«r'S a.^
made to date in Contestant's first brief, it would result in leaving Contestee a
plurality in his favor still of more than 400 votes, as above stated.
We want to repeat, however, at this point, as we have many times said,
that there Is nothing in any of these precincts of a venal or fraudulen chax-
acter which throw out any of them; nor has there been discovered any hon-
est error which makes one single difference in the vote, except that Cori-
testee should have the 11 plurality in the township of Climax, Kalamazoo
county; the error in the township of Calhoun having been corrected by the
board of election inspectors and the county board of canvasser.^, it should
stand as canvassed, giving Contestant a plurality of 36 votes in that pre-
cinct."
PRINCIPLES OF LAW, PRECEDENTS, RULINGS, ETC..
WHICH WE CLAIM ARE APPLICABLE TO THE VARIOUS QUESTIONS
RAISED IN THIS CONTEST.
I. Effect of State Laws and Decitions.
It will be remembered that in another place in this brief we have lu^•-
mated that we would have something to say as to what effect, if any. a
state law or a Supreme Court decision should have in controlling the dt;3ision
in a matter like this. The Constitution of the TTnited States provides that the
House shall be the Judge of the elections of its members; true, it uirthe.r pio-
vides that the state shall prescribe the times, places and mnnner of holfiliig
these elections. It is our purpose to take this language and give it the only
construction which in our Judgment can consistently be given it, tha^ the
House is the sole, only and final arbiter of controversies of this chnracTer:
that is, the House is the place of original, conclusive and final Juri&dicti >n *o
decide whether Contestant shall gain this*seat, or whether Contestee shall
hold it.
We might say at this point that we do not for one moment mtea^i to
show any disrespect or lack of appreciation of what the highest court in our
state has said as to these statutory provisions being mandatory. And as to
what they have said in given cases about excluding the vote o^ m ent le
precinct for certain irregularities: but we insist that, even if it be found, a:^
before stated, that certain decisions of our Supreme Court would he in line
with the contention of Contestant here, yet that when it app*jars, as ii does
here, that not a sitigle vote was given to Contestee, and not a single vot was
lost by Contestant, then that this Committee and this House will .tut he
bound by decisions the application of which would be to work an injustice
upon the Contestee in this case. Precedents and rules of law are valuable;
but, as stated before, we do not believe they will be ur.ed for any othei pur-
pose by this Committee and this House than that of an advisory charact »r. or
to throw light upon how the law has been construed and how it $:houlQ be
construed in the given cases. And we will go further, and say that w*5 thiuk
It fortunate, and think it Just, that the house is not bound by the various
laws and the various decisions in the different states of the Union in ma*cerr>
of this character.
We say this for this reason: that It is a conceded fact amonir lawyers
and men generally that while it is necessary that a rule of law should apply
to all cases alike, yet that it operates justly In one instance and vtiy un-
justly in others. This House has the opportunity, within its ucdi%>puted
functions, then, to relieve this case from the hardship which a rule of Iw
laid down by some court in some other case would visit upon the Conie&tee
here.
To make ourselves plain: we believe in precedents and laws regulating
elections, but we insist that if the doctrine laid down in the ICls*^ Micji^an
in the Relnhart case be applied here in throwing out all the votes ol Wiusor
township, and if the doctrine contended for in tJie Kirby case In th** i20ih of
^1 '
Michigan be applied here, and all the votes of Sunfleld township be thrown
out, the result would be an injustice to Conteatee, and thf aea^iug uf one
who never received a plurality of the votes cast in this distrlc*. We say
Injustice, because there is no rational or reasonable claim, uor not one iine,
word or syllable of evidence, as said so many times herein, tha^ Contestant
was deprived of a single honest vole or that Contpstee received one oin?:le
dishonest one.
We say, therefore, that if it be conceded for argument's sake, and for
that alone, at this point, that these decisions would control such controversy
in Michigan, yet, as we have before pointed out, it does no* bind Ihia Com-
mittee or this House, and they are perfectly free to render a just decision
between these two applicants to thii* office, for the leasons pointed oat here-
tofore, and which will be referred to later on.
We must not omit to state hero, however, that in the KIrby caj?e,
which Contestant claims controls the Sunfleld vote, quite a diflerent state
of facts existed, as we have shown before, and v/e will not take up ihc time
at this point in the brief to say anything more about il.
It strikes us that we have a very fresh piecedent on the point now inder
discussion. We refer to the contested election case of
McDonald vs. Young,
heretofore disposed of at this session of Congress. In other words, it is
not necessary to go back and review the numerous cases which have come
up before this House for decision, in order to find authority that in a
given case, where justice demands it, s ate laws and state decisions do
noL control. The facts of this case are so fresh in the minds of this Com-
mittee that we will take no time in rehearsing them. From our viewpoint
if the decision in Michigan had been followed, there is at least a serious
question, but what an injustice would have followed in -that case, and a
different decision made. There is a' least a serious doubt whether under
the decisions in Michigan, the 548 votes cast for McDonald in Ontonago
county could have been counted for him; and as we understand it the
House Committee which had this contest under advisement itself doubted
whether or not the name of Sheldon Will; am J. McDona'd was not so dis-
similar to the name of Wir.iam J. McDonald, that the votes cast for the
former could not be counted to the latter under the Michigan Supreme
Court decisions. It must at least be conceded thai our decisions in
Michigan very strongly tend to such holding; and if such decisions had
been followed in the McDonald case, would it not have resulted in
depriving that Michigan district of having the man who the most voters
had hones ly chosen at the polls? The application of the rule laid down
in the cases cited below then, to the McDonald case wou'd have resulted
as nearly everybody concedes in an injustice to McDonald. These are the
cases:
Toby vs. McNeal, 63 Mich.| 294.
Andrews vs. Judge of Probate, 74 Mich. 283.
People vs. Fox, 114 Mich. 652.
Ott vs. Brissette, 137 Mich. 717.
The Committee on Elections No. 1 of which Hon. J. D. Post was
chairman said in its report in the McDonald case favoring the seating of
the Contestant:
"Notwithstanding the fact that it is the settled law of the State
of Michigan that the intention of the voter can only be de'ermined
from the face of the ballot, the House can go behind the ballot
to ascertain the intention of the voter; it may consider the circum-
stances surrounding the election; it can de ermine who were the
candidates; whether there were other persons of the same name
residing in the distric' who were candidates; whether the ballot was
printed perfectly or imperfectly, and if imperfectly how it came to
' be printed.*'
Committee's Report, page 8.
Now, this language Just quoted is we think, in direct conflict with
the language used in the decision above cited wherein it was held in
42
substance, that the intention of the voter must be found absolutely from
the face of the ballot.
We have also read with interest the able argrument made by Judge
Post before the House in this contested case (McDonald vs. Young).
Quoting from
Congressional Record of September 2nd, page 4543,
permit us to set forth some of the things he said:
"The power to reject an entire poll is certainly a dangerous one,
and though it belongs to whatever tribunal has jurisdiction to pass
upon the merits of a contested election case, it should be exercised
only in an extreme case, that is to say, a case where it is impossible
to ascertain with reasonable certainty the true vote."
McCreary on Elections, Section 44.
Judge Post also quotes from the Virginia election case of McKenzie
vs. Braxton, decided by the House in 1872, where it was held that "the
House can go behind the ballot to ascertain the intent of the voter, so as
to explain what is ambiguous or doubtful. If by the aid of extrinsic
evidence that which is ambiguous or doubtful can be made clear and
truthful, then no harm can result by resort to such evidence."
Judge Post also quotes from the contested case of
Campbell vs. Morey,
decided fh 1884, where it says that
"the intent of the voter ought to prevail whenever it can be ascer-
tained by an inspection of the ballot, and if the ballot is ambiguous,
the Intention of the voter may be shown."
He further quotes from the case of
Dailey vs. PetroU (10 Philadelphia Reports, 389),
in which it is said:
"The power to throw out the vote of an entire precinct should be
exercised only under circumstances which demonstrate beyond a
reasonable doubt that there has been such disregard of law or such
fraud that it is impossible to determine what votes were lawful or
unlawful, or to arrive at any result whatever or whether a great body
of voters have been prevented from exercising their rights by violence
or intimidation."
It strikes us that the above language Just quoted Is very significant
and we appeal to this Committee and this House to note the significance
of the language as applied to this controversy here.
The same speaker quoted from
Chad wick vs. Melvin, (Bright's Election Cases, 489),
where it is said:
"There is nothing that will Justify the striking out of an entire
division but an inability to decipher the returns, or a showing that
not a single legal vote was polled, or that no election was legally
held."
Judge Post quotes from
McCreary on Elections, Section 489,
as follows:
"Nothing short of an Impossibility of ascertaining for whom the
majority of votes were given ought to vitiate an election, especially
if by such decision the people must on account of their distant and
dispersed situation necessarily go unrepresented for a long period of
time."
43
We have quoted thus copiously as to what took place In the House
at the time the case of McDonald vs. Yo\ing came up, because It is the
most recent exposition of what the House will be guided by in rendering
absolute justice between two contestants for the same seat in Congress.
It strikes us that, if it be true that in order to seat McDonald the decisions
of our highest court had to be Ignored, Contestee can come forward here
with a great deal of confidence, claiming that Congress is not bound hand
and foot by the decisions and laws of the State from which the congest
comes.
In the case of
Lynch vs. Chalmers,
•
in the forty-seventh Congress, a history of which is found in Hind's Pre-
cedents, Volume II., Section 959, et seq., the majority report .of the Com-
mittee speaks of the duty of the House in following or refusing to follow
the decision of a state court At page 269 of the work above cited, quoting
from the majority report, we find the following:
"It is seriously contended by the contestee that the decision of
the Supreme Court of Mississippi construing the sections of the
election laws of that state ought :o be followed by Congress, and
that it is against the settled doctrine of both congress and Federal
judiciary to disregard local laws. This is too broadly assertive and
cannot be maintained. * « ^ The rule as to all other ques-
tions is well stated in Township of Pine Grove vs. Talcott (19
Wall 666-667) as follows: 'It is insisted that the invalidity of the
statute had been determined by two judgments of he Supreme Court
of Michigan and that we are bound to follow these adjudications.
With all respect for the eminent tribunal by which the judgments
were pronounced we mus: be permitted to say that they are not
- satisfactory to our minds. The question before us belongs to the
general demand of jurisprudence. In this class of cases this court
is not bound by the judgments of courts or statutes where the case
arises: it mus: be heard and determined for itself.'
"There is ci ed another reason why Congress should not be bound
by the decisions of state tribunals in regard to the election laws,
unless such decisions are founded upon sound principles and comport
with reason and justice, which does not apply to the federal judiciary,
and it is ihis: 'Every state election law is by the constitution made
a Federal law where Congress has failed to enact laws on that
subject, and it is adopted by Congress for the purpose of the election
of its own members. To say that Congress shall be absolutely
bound by state adjudications on the subject of the election of its
own members is subversive of the constitutional provision that each
house shall be the judge of its own members, and it is likewise
inimical to the soundest principles of national unity. We cannot
safely say that it is simply the duty of the house to register the
decrees of state officials relative to the election of its own members.
♦ ♦ ♦ Election laws are or may become vital to the existence
and stability of the House of Representatives, and to hold i:, must
show itself open to the natural limit of investigation along the
question as to whether an election has been conduc ed according to
state laws as interpreted by its own judiciary would be to yield at
least a part of that prerogative conferred by the constitution
exclusively on the House itself."
The report of the committee makes thio furtlior sng??ehtion:
"That by adopting the machinery of the state to carry ou coutsiesfi-
ional elections this house stands in the rature of an appellate court
to interpret these election laws: that it ought not in this view to be
bound by the decisions of the btate Couris at all, unless the reasons
given by thcra are convincing to the judicial mim; of the house aotin?:
in the capacity of a court."
44
The Federal constitution, Art. I., Sec. 5, provides tliat:
"Bach House shall be the Judge of the election, returns and qualifi-
cations of its own members."
•
Calling attention to Volume I. of Hinds' Precedents, Sec. 6S6, *e find
that the following resolution was Introduced on January 21tb. 1870, by
Mr. Albert G. Burr, of Illinois, which was adopted by a vote of 140 /ea to
23 nay:
"Resolved that from the nature of its duties the commlti<^~ of t;lec-
tions from the house of representatives is a judicial body, and iii de-
ciding contested cases referred to such committee the memb«;r8 iXereof
should act according to all the rules of law, without partiality oi pre-
judice as fully as though under special oath in each particular «jase so
decided."
■
In the early election case of Spaulding vs. Mead, in the 9th Congresi.,
reported and digested in I. Hinds' Precedents, Sec. 637, this question oi the
right of the house of representatives to ignore the state laws and mlot
arose. It is said in relation to thib case:
"It was contended on the one side that ihe house must oxercise
its right in accordance with the fixed rules of the state of Oeoigla.
that state having the constitutional right to prescribe them, and they
being conclusive until revoked by congress. And on the othei iianil it
was contended that the power of judging the returns wan iifierent
from the state power of determining time, place flnd maiincr oi elec-
tions. The law of Georgia could only be considered as constituting
the governor the organ of information to this house, tlie onl> tri-
bunal to which the returns can ultimately bo made. The fact that
the governor had counted only a part of the votes cuuld not prf^vent
the House from counting all of them. The power of the House to judge
could not be concluded by a state law or executive."
In the contested election case of Patterson vs. Carmack, 55tl* ^^ou^rr'^ss.
reported by Chester H. Rowell, page 574, of his work, it is said, in dlscuo^ia?
the relative authority of congress and state functionaries as follows.
"But in judging of the elections, returns and qualifications oi as own
members under the grant of the constitution, this house ^^'zercises
judicial power, is a court of competent and exclusive Jurisdiction ip
passing upon these returns and elections even if no Federal srHcutH
is in existence regulating the elections of its members, it inten^ret^"
and construes the state election laws which for the purpose of such
election are to be regarded as having the quality of Federal Ic^^gisla-
tion and the opinions of state judges are only to be adopted so far
as they commend themselves by the force of their reasoning and
where such decisions are in conflict with its determinntion^, *he pre<.t-
dents established by congress are the expression of the law aitd must
control that court with the same force and effect that its owe prior
deliberate rulings guide and control any other court/'
2. Other Legal Propositions Bearing on Varrous Precincts In This Contest
In the election case of
Williams vs. Settle,
reported and digested in
II Hinds' Precedents, Sec. 1049 et seq.,
will be found a case involving certain irregularities something similar to
what occurred in this case. Cne of the objections was that part'es other
than the officers handled the ballots. In response to this, the conmiitLeo sa/s
that if the ballots were truly counted it would not of itself destroy tne elec-
tion. The committee says that the practice was irregular, and ought not to
be encouraged.
46
(Note — This would have some bearing on the election in Sunfleld and
Carmel townships in Eaton county, where Con^estanr claims unauthorized
persons handled the ballots).
Another objection was that the officers of election negqn to count
some of the ballots before the polls closed in two of the preducts. We 4uoie
from the report of the committee:
"This manner of counting: votes is mo reason for rejecHug it, not-
withstanding the statute of North Carolina provides tnat the re^i&trar
and Judges of election shall open the boxes and count the ballots after
the close of the election. While we think this practice of thus
opening the boxes and counting the ballots should be condemned, yet
Its having been done and the rcault correctly cerUfled, we thi^k the
return should not be rejected on that account. If the statute in ex-
press terms required that the votes should uot be counted uuti< after
the close of the polls, and if they were so counted that the leiurn
of that precinct should be rejected, then the statute would be man-
datory, and would be compelled to follow its provision:: and i eject
these returns; but as the statute is simply 'directory, we feci that no
injury should result to the public in consequence of this error on the
part of the election officers."
(NOTE: We think this precedent very strongly militates against the
argument used by Con'estant in seeking to throw out the township of
Carmel, where they began counting the votes at 2 o'clock in the afternoon.)
Another objection to the validity of the election made by the contestant
was that an inspector or judge of the election was a candidate for office
in two of ihe precinc s. In Buchanan one R. A. Chandler was one of the
judges, and was running for the office of constable. The report says:
"His candidacy for constable d'd not imply or even create a
suspicion that it was to his interests to do anything wrong in the
conduct of (he election for Congress. His acting as poll-holder could
not in any way affect the rights of the parties to this contest. The
evidence in this record establishes the fact that the elec ion was
honestly and fairly conducted, and the correct result certified."
Speaking of the other precinct where one James A. Bullock received
votes for the office of coun y surveyor, and who was ac ing as one of the
judges of ejection, the report says:
"The proof in the case shows that the fact that he was one of
the judges of election did not have any effect whitever on the result
of the Congressional election. The proof is ovprwhelming that the
election was properly conducted and the result honestly certified."
(NOTE: Contestant has claimed in his brief that one of the reasons
why the Third Ward of the city of Charlotte shou'd be thrown out was
that John C. Nichols, a candidate for circuit cour commissioner at that
election, acted for a short time in putting the ballots in the ballot box
which he received from the voters.)
The law of the sta'e from which this contest arose Just quoted from,
provides:
"No person who is a candidate for any office shall be a registrar or
an inspector of any election."
It strikes us that this is a good clean statement of how a matter of
this character should be disposed of. Nichols was invi ed by one of the
inspectors to assist him temporarily by putting a few ballots in the ballot
box, which he did. He was soon reMeved, and there is not a word, line,
or syllable in the record anywhere to show that he d*d any'hing out of the
way, dishonestly, or committed any offense against the election laws what-
ever, except that he did act by depositing five or six ballots wi hout having
been sworn in for that purpose.
46
In the New York election case of
Duffy vs. Mason,
In the 46th Congress, reviewed and digested in
II. Hind's Precedents, sec. 942, et seq..
sec. 943 et seq., and sec. 944, et seq.
the majority report discusses the question as to the responsibility of a
candidate where his friends do improper things. Boiled down in a few
words, the report holds to this effect:
"In absence of evidence to incriminate him, a returned member is
presumed innocent as to the acts of agents of his party. Improper
acts by a candidate's friends without his participation are of effect
only so far as they are shown to actually have affected the result
A candidate cannot and ought not to be held responsible for the im-
prudent and censurable acts of indiscreet friends, who, in the zea'ous
advocacy of his election, resort to improper means of securing that
result without his knowledge, and which he, if he had been consulted
would condemn, unless the voters affected by such means are suf-
ficient to change or render uncertain the result of the election."
(NOTE: Contestant claims that the votes In the Third Ward of the
City of Charlotte should be thrown out, mainly because the two inspectors
Dunning and Dowdigan did some soliciting votes. We have already shown
that as a matter of fact what they did was at most a slight indiscretion, and
did not amount to soliciting votes; but if they had, this precedent just cited,
it seems to us, would be a just decision in such a case, that a candidate
should not suffer by the indiscretion of his friends, unless it was so serious
as to actually affect the result.)
We called attention in this brief before to the fact that Contestant's
partisan friends are charged by him with having committed irregularities
from which he asks relief. We said in a former place in this brief, and we
repeat, that we think this fact should be taken into serious consideration
in passing upon the merits, viz., that Democratic partisan friends of the Con-
testant were guilty of perhaps the most serious irregularities in this case.
It will be remembered that Albert Sayre, who was sworn in as an inspector
in Sunfield, was not only a Democrat, but that kind of a Democrat who
votes his ticket straight. He testified that he did so, and voted for the Con-
testant.
Again, in the Township of Carmel, Cortez Cushing, who assisted in what
is known in this case now as "the 2 o'clock count," was a Democrat, and
supported the Contestant. These two townships furnish the most plausible
argument which Contestant has in this case, unless it be the Township of
Winsor, of which we will say a word or two later.
Sayre, of Sunfield, was a Democrat. The chUirman of the board w^as
a Democrat. Another of the inspectors was a -Democrat. Witherall, one
of the men who assisted in the count, was a Democrat. Another was a
"Bull Moose" or National Progressive; leaving only two Republicans, as we
remember it, on that board.
In the Township of Carmel, Cushing, as s'ated before, who assisted in
that count, was a Democrat.
Now. this question has been up, viz., as to the presumption which exists
that partisan election officers do not intentionally err against a person run-
ning on their ticket; and it is said in
II Hinds' Precedents, sec. 922.
in the case of
Piatt vs. Goods, 44th Congress:
"The doctrine was laid down and sustained that the presumption
is that Democrats will not intentionally commit fraud to he^.p a Re-
publican, or vice versa."
We think that good practical politics, whether it is the law or not; and
we think it should be taken into consideration in passing upon the merits
47
of Contestant's claim here, and especially in the two townships of Sunfleld
and Carmel. We want to remind the Committee and the House again that
the hoard of county canvassers of Eaion County, before whom Contestant
appeared and objec ed to their proceedings, was composed of two Demo-
crats and one Republican; that the principal, leading spirit of the county
canvassing board of Calhoun County was a Democrat. George Snyder.
3. Irregularities Generally.
"Errors relating to form rather than substance, and not affecting
the result, he'd to be immaterial."
Porterfield vs. McCoy, 14th Cong. C. and H. 269.
"Our election laws must necessarily be administered by men who
are not familiar with the construction of statu ed; and all that we
have a right to expect are good faith in their acts and a substantial
compliance with the requirements of law."
Ingersoll vs. Naylor, 26 h Cong. 1 Bart. 35.
"Where the inspectors violate the law in adjourning before com-
pleting the canvass of votes, such adjournment does not vitiate the
poll un'ess it is shown to have afforded facilities for fraud or that
during it the boxes were concealed and tampered with."
Blsbee vs. Finlay (Minority Report) 47th Cong. 2 Ells. 215.
In the contested election case of Frederick vs. Wilson, 48th Cong, re-
ported in Ro well's Historical and Legal Digest at page 413, it appeared that
in one precinct the officers of elec ion had opened the box and counted the
votes before the time prescribed by law, thus depriving eight or ten voters
who subsequently voted of the secrecy of the ballot: but the committee
never. heless counted the votes.
"In a contested election case very little attention should ordinarily
be paid to mere irregularities in the proceedings of the election of-
ficers which do not affect the real merits of the case."
McCrary on Elec ions (4 Ed.) Sec. 222.
"But as in most cases that statute simply provides that certain acts
or things shall be done within a particular time or in a particular
manner and does not declare tha' their performance is essential to
the validity of the election, then they will be regarded as mandatory
if they do and directory if they do not affect the actual merits of the
election."
McCrary on Ejections (4 Ed.) Sec. 225.
"Those provisions of a statute which affect the time and place of
the election, and the legal qualifications of the electors, are generally
of the substance of the election, while those touching the recording
and return of the legal votes received, and the mode and manner of
conducting the mere details of the election, are direc'ory. The prin-
ciple is that irregularities which do not tend to affect results are not
to defeat the will of 'he majority; the will of the majority is to be
respected, even when Irregularly expressed. The officers of election
may be liable to punishment for a violation of the directory pro-
visions of a statute, yet the people are not to suffer on account of
the default of their agents."
McCrary on Elections (4 Ed.) Sec. 228.
"There is a difference between a fraud committed by officers or with
their knowledge and connivance, and the fraud committed by other
persons in this: The former is ordinarily fatal to the return, while
48
the latter is not fatal, unless it appears that it has changed or ren-
dered doubtful the result."
McCrary on Elections (4 Ed.) Sec. 674.
"But misconduct which does not amount to fraud, and if no one is
injured, does not vitiate the poll."
McCrary on Elections (4 Ed.) Sec. 575.
itt
'The fact that persons other than members of the board of election
officers are allowed to be in the room with such officers when votes
are being received and deposited will not of itself and in the absence
of any proof of misconduct on their part, be sufficient to invalidate
the return, but the admission of such persons is decidedly improper
especially if the persons admitted by the partisans of any particular
candidate or ticket and the fact of their presence and misconduct
may be shown as circumstances tending to invalidate the return."
McCrary on Elections (4 Ed.) Sec. 580.
««
'And in Bor lean's case tried by the court of common pleas, Phila-
delphia, it appeared that in the afternoon of the day of election one
of the clerks of the election became so much intoxicated as to be
unfit for his duties, and at the request of the inspectors, one Samuel
C. Cox acted as clerk for the balance of the day, and until about 3
o'clock in the morning of the succeeding day, when the clerk, having
recovered of his debauch appeared and signed the returns. Mr. Cox
was not sworn and was a candidate for assessor at this election.
Held that these facts were not such as should induce the court to set
the election aside, and the ground of the decision was, that the evi-
dence did not disclose any bad faith on the part of the officers nor
any fraud."
(2 Parsons, 503; Bright on Election Cases, 268).
McCrary on Elections (4 Ed.) 223-224.
Just a word further in regard to the Township of Winsor. It is .true
that the Michigan decision cited by Contestant is very much in point as to
the exclusion of those votes; and we have already shown in this brief that
under a very similar statute our Supreme Court held that they should not
be excluded.
Horning vs. Board of Canvassers of Saginaw County, 119 Michi-
gan, 51.
We do not speak of this in a criticising way, but simply to observe what
we consider are two decisions hardly in harmony with each other on the
same subject. But it was shown in the Record that the board of this town-
ship was very careful, that they even saved the perforated slip which they
tore off; and, as stated before, each one of the parties to this contest re-
ceived credit for every single vote that was cast for him.
Now, as we have state.d above, we say now: we believe that it is the
duty of this Committee and this House to overlook bare, cold technicalities,
and determine, as we have shown it has been determined in other cases,
this question upon the basis as to who actually received the most votes,
honestly cast and honestly counted. As was said by Judge Post
(Congressional Record, September 2nd. at
4541).
"This House with its large powers and wide discretion should not
be confined within too narrow limits. It possesses all the powers of
a court, liavlng full Jurisdiction to try the question, Who was elected?
It is not limited to the power of a court of law, but under the Con-
stitution possesses all the functions of a court of equity."
49
Is not this language very significant? All we ask is that it be applied
to the facts of this case; and If it is, we are confident that the House will
say that while in the Township of Wlnsor, through Ignorance, the election
board failed to follow the law, yet there having come no harm or prejudice
to the Contestant here, and It appearing that the Contestee gained nothing
by it and Contestant lost nothing by It, we will decline to throw out the
▼otes of this precinct. It may be said by Contestant that we are asking
the House and this Committee to overrule the law of Michigan. Our con-
tention should not be so construed. We simply say that under the Consti-
tution the House is not bound to be guided by precedents of any character,
even its own, but that each and every case should be decided upon its ab-
solute, honest, fair and square merits. The Contestee Is asking here for
nothing more and nothing less than simply the votes that were honestly
cast for him in this district at the November election of 1912.
We will not close this brief without apologizing to some extent for Its
length; but we feel strongly on this subject. We do not conceal the fact
that we have a great Interest in the matter. The Contestee, an excellent,
upright citizen of Uils district, and one who has been connected with its
business enterprises almost since boyhood, came frankly before the people
of his home and asked to be sent to Congress. It is no secret that the cam-
paign of 1912 was a stormy one, where considerable excitement existed, and
some very unjust things were said and done by different political parties
and their leaders. He was out in this storm, and weathered the blast and
came through with a small yet substantial and honest plurality of 116 votes.
He feels as though he was the choice of the people of this district; and
hence it becomes his duty, not alone for his own sake, but for the sake of
the district he represents, to maintain his claim before this House. We
believe we are safe In saying that if Congressman Smith believed that he
had a single vote which belonged to the Contestant, he would cheerfully
and manfully give It up.
We believe, as stated earlier in this brief, that we shall have Just as
fair a trial as though this jury was made up of Republicans. We believe,
as we stated earlier in this brief, that no feeling, impulse or sentiment of
partisanship will enter Into the decision; but that it will be the desire of all
who participate in this decision to simply render such a conclusion as will
do absolute Justice between these two parties; because, as stated before, we
have that confidence In men who have aspired to become and have become
Congressmen, that they will look at this contest from only one view-point,
and only one standpoint, and that Is, Which one of these men received the
most of the honest ballots cast in this district?
We close, as we began, with the statement, and we challenge the Record
to dispute It, that there is not one single particle of evidence here from
which it can be inferred, even, that any fraud existed, that any intentional
wrong was done, that anything occurred which would change the result or
that either of these parties has a single vote which belonged to the other.
In all the precincts in which Contestant claims Irregularities, it ap-
peared abundantly, over and over, as Is shown by the Record, that it was an
honest election, that each one received credit for every vote cast for him,
and no more. We therefore insist that Contestee should retain his seat,
having to his credit a plurality of 116 votes over Contestant.
Respectfully submitted,
HORACE S. MAYNARD,
Charlotte, Mich.
W. H. FRANKHAUSBR,
Hillsdale, Mich.
GRANT FELLOWS,
Hudson, Mich..
r-
CONTESTED ELECTION CASE
OF
aAUDE S. CARNEY vs. JOHN M. C. SMITH
FROM THE
THIRD CONGRESSIONAL DISTRICT OP MICHIGAN.
REPLY BRIEF OF CONTESTANT.
We do not desire to barden the Committee or the House with a cumber-
4Mtne reply brief. We shall call attention to a few instances of incorrect
statements in the brief for contestee, from which we shall feel warranted in
arguing that both this Committee and House should consider the facts in the
record, and not the statements in the brief for contestee as the facts in the
case.
Counsel for contestee criticise our original statement of facts on page
three, for stating that contestee and his attorneys endeavored to suppress
a certain afRdavit. The comment of counsel for contestee, at the top of page
five of their brief, is so unwarranted In the face of the record, that we let
the record, from page 249, answer and completely refute their brief.
"Q. If you can find that statement, I wish you would bring it back
with you tomorrow. A. Weil, i can't do it.
Mr. Adams: I would like to have the witness see if he can find it
and come back here tomorrow.
Mr. Frankhauser. Will it do if he sends it in a letter?
Mr. Adams: No. I would like to have him come back tomorrow,
too.
Mr. Fellows: There has been no notice given us to produce this
paper, and the witness has been here and we are not bound to keep him
here two or three days for the accommodation of counsel. The wit-
ness is here, and if you have any further cross-examination to make,
make it.
Mr. Adams: I will give you notice now to have the witness pro-
duce that paper here tomorrow morning at 11 o'clock.
Witness: I can't do it.
Mr. Adams: We give you notice now to produce the original that
r^ Mr. Nichols got from Mr. Knapp and also from Mr. Hager, and we give
--- you that notice now; or any statement that he took of any witness or
witnesses in Sunfleld or Carmel Townships relative to that November
^ 5, 1912, election. We give you notice now to have Mr. Nichols or any-
body else who has this to produce them.
Mr. Fellows: We will not produce them. We will let you make
oral proof of their contents.
Mr. Maynard: We have no such documents...! haven% and i havs
not seen them nor heard of them."
This occurred on March 20th.
<
r
588303
The above statement of counsel looks particularly strange in view of the
statement of John C. Nichols, under oath, March 22nd, 1913, (R. 320) :
"Q. You went out into Sunfleld and got some affidavits, didn't you?
A. Yes, sir.
Q. Where are they? A. I don't know.
Q. What did you do with them? A. I think I gave them to Mr.
Smith.
Q. You wrote the affidavit out, didn't you? A, Yes, sir."
Counsel for contestee in their brief evidently forgot their attitude (at
the taking of testimony) for suppressing this affidavit, and we call attention
to the persistent and pressing cross-examination of counsel for the contedtaat,
which, on March 25th. 1913, i^esulted in Mr. John C. Nichois producing" the
affidavit which counsel for contestee, in their brief, page five, calls a voluntary
presentation of this affidavit. If, as counsel for contestee claim, on page five
of their brief, that the affidavit was of no importance, why was such a desper-
ate attempt made to conceal and suppress it? The force of the affidavit lies
in the unusual effort made by contestee in hiring John C. Nichols to take care
of that township, and in the effort of Nichols to take care of it, trying to get
an affidavit from all the members of the board which would give the impres-
sion that everything was regular and proper. Why was such an effort made
to suppress knowledge of the conditions surrounding the election in the
township of Sunfield on the 5th of November, 1912, unless the election was, as
we claim, absolutely illegal, and contestee was desirous of suppressing that
knowledge.
It is worthy of note that counsel for contestee are continually claiming
that contestee received the most votes honestly cast and honestly counted,
but in their wisdom as lawyers, able as they are, they have yet studiously re-
frained from claiming at any place in their brief that the votes questioned
by us were legal votes. Nor is it claimed, so far as we can discover, that
contestee was legally elected. And counsel for contestee practically admit
throughout their brief that the claims of contestant are well founded, and
their only answer is that if the seven precincts specifically set out in our
brief are thrown out, likewise should a number of other precincts set up by
contestee be thrown out for like reasons.
We will later in this brief analyze the claim of contestee that certain
precincts should be thrown out, and show conclusively by authorities of
Michigan and argument of counsel for contestee, that the same condition does
not exist, nor do the same rules of law nor principles of logic apply. Con-
testee admits the strength of our position and the authorities and reasoning-
presented, and his defense can be summed in a sentence. What you say is
true; the law you quote is correct; and it should be applied, but don't do it in
this particular case. That this conclusion is warranted, we make the follow-
ing quotations from the brief of contestee:
Contestee's brief, 6th paragraph, page 9:
"And we want to add a word more, that we believe as we shall have
occasion to say later, that this Committee and this House are going to
seat the man who has the most votes honestly cast and honestly
counted, even though there be decisions and holdings which might
Justify the throwing out of certain of these precincts."
It will be noted that they do not claim that he had the most votes
legally cast.
Brief of contestee, page 9, last paragraph.
"When their conscience is satisfied that contestee is not claiming
a dishonest vote, and that contestant lacks 116 votes of having as many
as the contestee, they will ignore and hold immaterial and not applica-
ble strictly technical holdings as to mandatory and directory provisions
of our election laws.*'
8
Again we call attention to the fact that they deliberately leave out the
question of illegal votes.
Brief for contestee, page 10, 2nd paragraph:
"We do understand, however, that the constitution of the United
States makes this House the ultimate sole judges of this election — from
whose decision there is no appeal, whose finding is absolute and final;
that they are not controlled by any decisions or any statutes anywhere,
but if such decisions and statutes are considered, they are simply of an
advisory character to this Committee and this House, and in no way
absolutely binding."
It is a very unusual experience to find ourselves confronted with the
admission that the statutes and decisions are conclusive, but accompanied
with such an apparent appeal to this Committee and the House to disregard
statutes, to disregard decisions of the Supreme Court of Michigan, and to dis-
regard specific proceedings of the House just because it has the power to do it.
Brief of contest ee, bottom of page 16-17:
'*In other words, we believe that this Committee and House will
exercise its prerogative in rendering a decision here which w^ill do
justice in this particular case irrespective of what the court found nec-
essary to find the law to be in other cases In order that Justice might
be done in those cases."
Brief for contest ee, top of page 20:
"As before stated, we will discuss in another portion of this brief
the question as to whether this Committee and this House should be
bound by Michigan decisions, even if it were found that this deciison
and others which have been cited by counsel would require the exclusion
of this vote."
Again, Brief of contestee. page 20, 5th paragraph:
"Then if the House finds that nothing occurred there which could
by any possibility be construed into fraud or intentional wrong, and which
could not and did not change or influence the result, this House will not be
bound by the decision in the case Just cited for reasons already given."
Again. Brief of contestee, page 28, 3rd paragraph:
"But be that as it may, the record shows here that neither one of
these parties was damaged or benefited by this irregularity, and we
shall insist, as before stated, that even if it be held that the ballots of
Winsor Township could be thrown out by reason of this decision in the
161 Mich., cited and quoted from by contestant in his brief (pages 16
and 17) yet that this harsh rule should not be applied by the Commit-
tee in the House in this case — it not appearing that any fraud or In-
tentional wrong was done, and that it not appearing that any thing
occurred there which in any manner changed the result of the election,
or affected either candidate one way or the other."
And yet the statutes of Michigan, the Supreme Court of Michigan, and the
continued practice and understanding in the State of Michigan, makes the
votes last above referred to absolutely illegal and void.
We conclude the portion of our reply brief, covering the seven precincts
which we so conclusively showed in our original brief were illegal and void, by
stating that the above quotations from the brief of counsel for contestee
admit the force of our position, admit the correctness of our statutes, of our
Supreme Court decisions, and admit that in any tribunal in the United States
these statutes, these Supreme Court decisions and the conclusions which wo
reached would be binding. f)ut because of the unusual and peculiar t>owerfi
of the House, contestee asks the House to use its power and ignore law, and
ignore statutes, and Ignore supreme court decisions, and ignore continued
and continuous practice, understanding and acceptance of such statutes.
We have shown to this Committee and the House that our contentions are
strictly according to the tsatutes of the State of Michigan, the Supreme Court
decisions of Michigan, the continued practice and acceptance by the people of
Michigan of the provisions of these statutes and decisions. We refuse to
believe that this Committee and the House will absolutely ignore all statutes,
all supreme court decisions, all continued practice and acceptance of these
laws and decisions, and by so doing, flagrantly abuse the power which is
vested in them. We deny the contention of contestee that this Committee
and the House "Are not controlled by any decision or any statutes anywhere,"
but we do insist as above, that the power of the House is always exercised
legally and lawfully and justly in construing the law of the land and applying
it, and that that power Is not exercised in defeating and overriding the spe-
cific, statutory law of communities, as interpreted by the supreme Judicial tri-
bunal of that community, and as accepted and acquiesced in by the people of
that community.
The above analysis of the attitude of contestee in his brief, confirms the
general statement of conditions as set forth in our original statement of facts,
wherein we claimed that the election machinery in the hands of the contes-
tee was not fair, nor did it intend to be fair, to contestant, and the attitude
taken in their brief that the contestee should be seated in violation of statutory
law and supreme court decisions, is but another example of the same spirit
which guided and controlled contestee and his friends in conducting the
election and canvassing the votes in Eaton County, of which contestant has
been complaining. The spirit is interwoven throughout the brief, that regard-
less of law and in violation of law, the contestee should be seated because he
is a Republican. And the same spirit exhibited in this contest and In the
entire election proceedings in Eaton county puts the contestee in the position
of demanding everything for himself whether it be in violation of law or not.
PRECINCTS CLAIMED BY CONTESTEE.
A careful analysis of the sixteen precincts specifically mentioned by con-
testee shows the following conditions to exist:
The contestee claims in most of them that the entire vote of the precinct
was illegal, because
(a) Certain voters were assisted in voting and had their ballots marked
without the voter being sworn, and
(b) Because women were behind the railing.
We will discuss first subdivision.
(b) Women were behind the railing.
This contention was absolutely unwarranted.
Sec. 23 of Act 190, Public Acts of 1891, as amended by
Act 8, Public Acts, Special Session 1912. (R. 212) expressly and specific-
ally made the presence of these women legal. In Michigan, as in other states,
the question of Women's Sufl'rage had become of immediate importance, and
at the election on the 5th day of November. 1912, the right of sulfrage for
women was submitted to the electors, and this section was amended for the
express purpose of permitting women to be present and watch the election
proceedings, particularly upon the question they were interested in. The
presence of women, therefore, was entirely legal, and the objection of con-
testee is untenable.
(a) Certain voters were assisted in voting and had their hallots marked
without the voter being sworn.
Under this subdivision, contestee has objected to precincts where voters
requested assistance in voting, and claims that the entire vote of the precinct
should be thrown out. The position of contestee is absolutely incorrect,
either in Justice, in logic, or following the interpretation of the election laws
of Michigan as construed by the Supreme Court of Michigan.
This precise question was raised in the case of
Attorney General vs. May, 99 Mich. 538 at p. 565,
in which the Supreme Court of Michigan stated:.
"In the present case, the inspectors and other officers of the various
districts are not charged with active frauds, but were marking ballots
of those who claimed they could not read English, without their first
having made oath as to that fact. This may have arisen from the inter-
pretation of the statute now claimed by respondent's counsel; that is,
that such provisions are not mandatory, but directory merely. And.
again, it appears that proofs were obtainable and actually introduced
as to the actual number of electors whose ballots were so marked. This
would not, under the facts shown, necessarily taint the vote of the
whole district, and it would not taint the whole ballot if the jury were
able to determine the correct ballot, as, under such circumstances, it
would not destroy the presumption of the correctness of the other bal-
lots cast."
Having thus stated, in a general way, the rule, in the same case, pages
555-556, the Supreme Court follows by saying:
•*We now come to the other portion of the charge, where, in sub-
stance, the jury were directed that they should take the illegal votes
from the total vote proportionately, according to the entire vote re-
turned for each candidate in that district. In this we think the court,
under well-settled rules, was entirely correct, it is a fair way to arrive
at results. The rule Is based upon the proposition that the illegal votes
have gone into the boxes without the fault of either candidate. If these
illegal votes can be separated from the legal ones, so that the number is
substantially ascertained, then the poll is too large by exactly that num-
ber, and they must be cast out. In casting them out, the rule laid down
by the court below is sustained by McCrary, Elect. (3d ed.) Sec. 460,
where it is said.
*Of course, in the application of this rule such illegal votes
would be deducted proportionately from both candidates, according
to the entire vote returned for each.*
In 6 Amer. & Bng. Enc. Law, p. 353, it is said:
•Where more ballots are found In the ballot box than there
are names on the poll list, the statutes of many of the states re-
quire the officers of election to draw out enough ballots without
seeing them, to make the number equal to that of the voters. And,
where they have not done this, it is probable that no other mode
would be preferable to that of deducting from each candidate a
number of votes proportionate to his total vote compared with the
aggregate vote of the precinct;' and the following cases are cited:
Gibbons v. Sheppard, 2 Brewst. 128; Finley v. Walla, 4 Cong. Elect.
Cas. 367; Piatt v. Goode. Id. 650. _
Our statute (section 174, How. Stat.) provides.
*If the ballots in the box shall be found to exceed in number
the whole number of names of electors on the poll lists, they shall
be replaced in the box, and one of the inspectors shall publicly
draw out and destroy so many ballots therefrom, unopened, as
shall be equal to such excess.'
6
Mr. Justice Cooley, in speaking of this provision of the statute in
People V. Cicotte, 16 Mich. 323, says:
'As each ballot is usually one of a number designed to be
allowed to particular candidates, and counted against others given
to other candidates, the drawing may still work no injustice, since
each candidate will probably lose by it a number proportioned to
the relative number of ballots appearing for him in the box, and
thus the relative proportions will be preserved.'
This rule, he says, 'is based upon the doctrine of probabilities.*
While we have no statute directing the mode of apportionment laid
down by the court below, yet the rule, we think, is one which does
no injustice to either candidate, and in the end carries into effect, as
nearly as may be, the will of the people as expressed at the polls.**
Applying the above rule as laid down by the Supreme Court of Michigan
to this case, we find that the number of votes cast in each precinct contested
by the contestee voted by voters who were assisted in having their ballots
marked, but were not sworn, should not be counted. It so happens that the
record is specific as to the number of votes in each of those precincts, so
that the rule to be followed in each of those precincts is that that number of
illegal votes should be deducted proportionately from the vote for each candi-
date. That this is the correct rule is conclusively shown by the following
quotation from brief of contestee, top paragraph, page 16:
"The case of Attorney General v. May, 99 Mich. 538, holds no more
than that it is unlawful for an Inspector of an election to assist in
marking a ballot for any elector who claims to be unable to read Eng-
lish until such elector shall have first made oath to the fact. It further
holds that this requirement is mandatory, and votes in violation thereof
should not be counted. In our opinion there is no necessity in dwelling
upon the law laid down in this case. It simply addresses its reasoning
and argument to the proposition that where vptes are 11 legally cast they
should not be counted and should be withdrawn from the count If it can
be ascertained how many wore thus illegally cast.'
ft
As counsel for contestee and ourselves agree upon this proposition, it is
especially significant to find contestee in his brief avoiding a tabulation of his
votes and stating:
Brief of Contestee, page 39:
"In the matter of the swearing of illiterate voters who requested
assistance, the showing made by contestee is far in excess and mort>
serious than that shown by contestant, though as to the actual num
ber shown bv each we have not now at hand a mathematical compila-
tion."
We add here a compilation of the total number of voters assisted in any
precinct contested by contestee, giving in each precinct the maximum number
as sworn to by any witness in the record, and we shall be fair enough to add a
few precincts where this condition existed which contestee evidently over-
looked in the preparation of his brief.
Maximum number of voters assisted but not sworn:
(We include herein only the precincts carried by the contestant and ol
which the contestee complains).
7th Precinct, City of Kalamazoo, Kalamazoo County 3
Texas Township, Kalamazoo County 2
3rd Precinct, City of Kalamazoo, Kalamazoo County 7
4th Precinct, City of Kalamazoo, Kalamazoo Coimty 5
10th Precinct, City of Kalamazoo, County of Kalamazoo 5
12th Precinct, City of Kalamazoo, County of Kalamazoo 4
13th Precinct, City of Kalamazoo, County of Kalamazoo 5
14th Precinct, City of Kalamazoo, County of Kalamazoo 2
Redding, Hillsdale County 3
1st Ward, City of Albion. Calhoun County 2
2nd Ward, City of Albion, Calhoun County 4
Total 42
We have not included in the above any of the precincts carried by contest-
ant in which any voters were assisted but not sworn, because in applying the
rule and deducting proportionately the votes, the application of the rule would
only make the result more favorable to contestant, and we do not wish to
burden this Committee or the House with unnecessary figures.
We then proceed to deduct the whole number of the above votes from
the vote of contestant, although the rule only requires them to be deducted
proi)ortionately in each precinct.
The final figures then stand:
Total corrected count in original brief, Carney 13,961
Deduct illegal votes as above stated 42
Total corrected vote for contestant 13,919
Vote for contestee 13,690
Plurality for contestant, Carney 229
This is a more favorable tabulation of votes than the contestee is entitled
to under his interpretation of the law as set forth in his brief and quoted
above.
In conclusion, we call attention to our original brief, in which we cover
specifically seven precincts of this congressional district, in which the votes
were absolutely illegal according to the election statutes of Michigan and ac-
cording to the specific decisions of the Supreme Court of Michigan upon iden-
tical conditions. The answer of contestee is to admit that according to the
statutes of Michigan and the Supreme Court decisions, the votes of these
lireclncts were illegal, but that the House should exercise Its prerogative
regardless of those statutes, regardless of the Supreme Court decisions, and
seat contestee, notwithstanding the fact that contestant was legally elected.
This Is conceded to be the position of contestee in his brief, on page 49,
where he says that 'it may be said by contestant that we are asking the House
and this Committee to overrule the law of Michigan. Our contention should
not be so construed. We simply say that under the constitution the House
is not bound to be guided by precedents of any character, even its own.'
We have taken up the specific precincts presented by contestee, and we
have shown that upon the only ground that he bases his claim that the whole
district should be thrown out, the Supreme Court of Michigan has adopted a
]x>8ltive and fixed rule, which is reasonable, just and fair, and applying that
rule, we have granted to the contestee every possible advantage by deducting
all of the illegal votes in these precincts from the contestant's vote, and yet
contestant received a plurality of 229 from the legal votes cast in that district.
We submit, therefore, that the contestee, John M. C. Smih, should not be
seated .and that contestant, Claude S. Carney, should be declared to have
received a plurality of the legal votes cast in the Third Congressional District
of Michigan on the elecion of November 5th, 1912, and that he be seated.
CLAUDE S. CARNEY,
Contestant in Pro Per.
EDMUND C. SHIELDS,
JOHN W. ADAMS,
Attorneys.
c(^ 2
STATEMENT OF PARTIES AND ATTORNEYS
>
IN CASE OF
CLAUDE S. CARNEY
V.
JOHN M. C. SMITH
FBOM THE
THIRD DISTRICT OF THE STATE
OF MICHIGAN
Referred to Election Committee No. 1
'i.
. >
'^' *: ric*.
i
V ^4
WASHmGTON
GOVERKMENT PRIKTTNQ OPFIOE
1918
COMMITTEE ON ELECTIONS NO. 1.
SiZTY-THIBD CONGRBBS.
[Gommittae room, room 297, House Office Bufldiog. Telephone 502. tfeets on call.]
J. D. POST, Ohio, Cko^riMii.
HUBERT D. STEPHENS, Mtabsipp!. WALTER ELDER, I/niisiana.
CHARLES R. CRISP, Oeoigte. BURTON L. FRENCH, Idaho.
OEORQE ICoCLELLAN, New York. JAMES A. FREAR, Wisconsin.
CHARLES If. BORCHERS, lUfaiois. WALTER M. CHANDLER, New York.
Feakk BfiLLBR, Clerk,
2
j:
CONTESTED ELECTION CASE OF CLAUDE S. CARNEY v. JOHN
M. C. SMITH.
Committee on Elections No. 1,
House of Repressntattyes,
Friday y December 5, 1913,
The committee met at 10 o'clock a. m.
Present: Bepiesentatiyes Post (chairman), Stephens, Borchers, Elder, French, and
Frear.
Present also: Claude S. Cafney, contestant, Edmund C. Shields, his attorney, and
John M. C. Smith, contestee.
The Chairman. Mr. Shields, you may proceed with your argument.
Mr. Shields. That condition, as I stated, became sufficient and so impressive to a
Democratic challenger that he objected there that day, and the only answer he could
f^t was,' ''What are you goin^ to do about it?" That is typical of the condition ex-
isting; that showed the sentiment of the people there ana the attitude toward the
election and toward the board and toward tne contestant growing out of politics
entirely; and that situation has been covered in the case of Attorney General v.
McQuade, that the soliciting of votes in that way constitute actual fraud.
The Chairman. Give us the whole citation.
Mr. Shields. Ninety-fourth Michigan, 439, Attorney General v. McQuads.
Mr. Frear. Those are all referred to in the brief?
Mr. Shields. Those are all referred to in the brief. I will say to the gentlemen
franklythat they can save some trouble if they will carefully read the brief.
Mr. French. Do you mean there are other citations you have not referred to than
those other than in your brief? What do you mean, that there are more cases holding
the same thing?
^ Mr. Shields. I do not mean more cases.
;^ Mr. French. You refer to the case where this inspector replied and protested in
3^ that way, that one of the judges said, ''What are you going to do about it,'' and you
SEdd that is typical.
>4 Mr. Shields. Of that precinct, not of other precincts.
^ ^ Mr. French. Do you mean that in that precinct there is a multitude of just such
, instances as that?
— Mr. Shields. Not in the general way asked stnd answered, but a great number, and
from the record it can not bid determined the number of votes that were solicited.
Mr. Elder. Does not this challenger state in his testimony one instance in which
he heard the question asked?
Mr. Shields. The testimony shows in the record, if you will take what each man
contested about.
^ Mr. French. Does not this man who raised this question admit in his first testimony
^ that he testified as to only one case?
' Mr. Shields. That is not my recollection of it.
^ Mr. French. I think you will find it is so. You said it was typical.
Mr. Shields. A multitude of such instances existed in that precinct of men being
^ solicited. There is not a witness but what told about some incident of solicitation oi
votes in that precinct.
> The Chairman. Did that continue all day?
-^ Mr. Shields. The record does not show it was all day, but at various periods dui-
inff the day.
Mr. Carney. Excuse me for answering your question. Mr. Mosler made the remark
on cross-examination that he meant one inspector; that every voter that went into
the booth had his votes solicited.
Mr. Frear. Whereabouts in the record is that?
Mr. Shields. You will find that in the record on page 48. In the brief for con-
testee I am criticized because I am unfortunate enough, perhaps, to have nerve in
Michigan to be chairman of the State Democratic committee. That requires some
little nerve in Michigan, and I am criticized because I am chairman and because Mr.
568303
4 CLAUDE S. GABKET VS. JOHN M. C. SMITH.
Carney has seen fit to retain me to assist him in this case; and not the insinuation only,
but direct claim is made thai 1 have been gotten into this case by Ma*. Carney because
of my being State chairman and because of some possible imaginary political influence
that might follow the State chairman being in tnis case. 1 want to be very frank to
this committee and state to you that when this contest started, Mr. Carney, whether
fortunately or unfortunately, engaged Judge Adams, of iiis home town, as one of his
attorneys and myself as another attorney. After carefully going over the petition
and the preparation of this case, it seemed to me arrogant nonsense that Mr. Carney,
Judge Adams, one of the leading and bicgest attorneys of Kalamazoo, and myself,
perhaps a very small attorney, should all be present at the takine of testimony; that
It was needless expense; ana therefore we divided the work ana arranged that Mr.
Carney and Judge Adams should do the work of taking the testimony and that I should
picepare the briefs, which I have done, every one of uiem, and If that is a crime upon
which the criticism may be justly directed, 1 am guilty.
Mr. Frear. Right in that connection, do you not suppose some one else has had
this impression, from these telegrams which I want to read?
Mr. Shibldb. 1 would like to hear them.
Mr. Frear. I will read the first telegram. They have been handed here for the
use of the committee, I presume. They are addressed to Hon. J. D. Post, chairman
[reading]:
Albion, Mich., December 4, 191S.
Hon. J. D. Post, M. C,
Washington^ D. C:
Believing that Claude Carney was legally elected to Congress from this district
and that he was deprived of his seat bv the fraudulent acts of disloyal Democrats,
I urge that his contest be given fair trial and decided on its merits.
D. M. McAuuFFE,
Chairman Democratic City Committee.
Mr. Shields. I never heard of it.
Mr. Frear. The next telegram, addressed to the chairman, is from Charlotte,
Mich., and is to this effect [reading]:
Charlotte, Michigan, December 4, 1913.
Hon. J. D. Post, M. C,
Washington, D. C:
With full knowled^ of the political situation in the third district of Michigan
and that Mr. Carney is in the right, we urge that in justice to Democracy that he be
seated as Congressman of the third district.
R. L. Sowers.
R. S. Spencer.
Mr. Frear. I take it for granted that you know nothing about that.
Mr. Shields. In reference to the telegrams?
Mr. Frear. The tele^m iust handed to me.
Ml. Shields. I certainly do not.
Mr. Frear. I take it for granted you knew nothing about it.
Mr. Shields. Another thing we want to cover: Ktr. Carney is crilicized for going
outside of his district, because I happen to live outside of the district, when conteetee's
own brief is signed by a Republican of the State of Michigan who does not live in his
district.
Mr. French. I think you are giving more attention to that than the commit t4M;
would ask of you, because I do not care if the majority of the members are Democrats,
I am satisfied it is absolutely determined to do the fair and square thing, and 1 do not
think there is any (question in the world about it.
Mr. 1<^ear. I'wish to read one more telegram into record. This is dated Eaton
Rapids, Mich., December 4, 1913. [reading]:
Eaton Rapids, Mich., December 4, 1923.
Hon. J. D. Post,
Member of Congress, Washington, D. C:
We firmly believe the merits of the case are with Mr. Carney in his contest, and that in
justice to him and his constituents he should be seated as a Member of Congress from
the third Michigan district.
John T. Hall.
J. B. Hbndbb.
H. M. Hall.
CLAUDE S. CABNBY VS. JOHN M. C. SMITH. 5
• ^ »
Mr. Freab. Who are these gentlemen?
Mi. Shields. They are all men that live in Eaton County, and they are undoubtedly
familiar with the situation as it was there on the 5th of November last, and want to be
sure that it is carefully gone into.
Mr. Frear. Why would these gentlemen be anxious about that? Here are these
telegrams addressed to the committee. Why would these men think these telegrams
would have an influence with this committee, when the parties at interest are expected
to appear here in person, with their counsel, and present the evidence?
Mr. Shields. I have not any explanation.
Mr. Frear. We have had a previous experience of this kind, and we are getting
verjr tired of that kind of pressure attempted to be brought to bear from the outside.
I think we are all inclined to decide everything fairly.
Mr. Shields. As far as I am concerned, I used all my energy trying to get here. I
eot a telegram late night before last, and it was necessary for me to work all night and
leave at 7 o'clock in the morning.
Mr. Frear. I am free to say that I do not believe the committee should allow such
influence to be exerted here.
The Chairman. On the contrary, it might militate against your side, Mr. Shields.
Mr. French. I do not think it would militate against their side.
Mr. Shields. The telegrams were sent without our consent and connivance, and I
hope you gentlemen will get well enough acquainted with me as this case proceeds to
know that I mean what I say.
The Chairman. We propose to settle this case upon its merits.
Mr. Shields. That is iust exactly all we are asking from this committee.
The Chairman. All the petitions and letters they write will not influence a single
member of this committee.
Mr. Frear. There are three other tel^rams that might as well go into the record
along with those I read.
(Tne telegrams submitted by Mr. Frear are as follows:)
Marshall, Mich., December 4, 191S.
Hon: J. D. Porter, Member of Congress,
WaihingUm, D. C:
Matter Conway Smith contest, I voice the strong sentiment of the fair-minded voters
of Calhoun County that justice demands that Claude S. Carney be seated. There is
absolutely no question that irregular work was done by several different canvassing
boards in this district.
J. C. Beck WITH,
Chairman Democratic County Committee.
Battle Creek, Mich., December 4, 191S.
J, D. Post, Washington^ D. C:
The seating of Claude S. Carney will give us clean politics and hereafter honest
returns. I feel that his election was the people's choice and his defeat the delight of
disloyal Democrats.
Frank Fenn,
Chairman Calhoun County Democratic Club,
Eaton Rapids, Mich., December 4^ 19 IS.
Hon. J. D. Post, M. C.
Washington, D. C:
We believe Mr. Carney is justified in contesting the seat of J. M. C. Smith in Congress
and that justice demands Carney be seated as a Member from the third Michigan
district.
E. W. Gallery,
Township Treasurer.
• Fred Bostedor,
L. J. Winn,
Supervisor.
Mr. Shields. That is a general condition, as 1 have stated before. I am not going
to take the time of the committee to read a lot of the record or to state all of the con-
ditions which exist in the different places. 1 think that the value of an oral argument
may be to ]>re8ent to you the conclusions and the conditions as we see them, and we
have cited in our briefs the places in the record where every statement can be sub-
stantiated.
6 CLAUDE 8. OABKEY VS. JOHN M. G. SMITH.
In rq;ard to the question that was asked as to whether it applied to only one voter.
There is all kinds of proof, and any number of witnesses were presented, and I sup-
pose the strength of the case depends upon the straightforwaroness and forcefulness
of the story and how it is told, and the scenery rather than the volume or the number
of witnesses; but I want to cover the gentleman's question here by quoting from my
brief on page 4, which quotes from the record on page 45, of the testimony of Dunning
[reading]:
* * We nad some trouble about it. I told Mr. Dunning the soliciting of votes should be
stopped. He said 'What are you going to do about it?' (R., 48.) I heard the same
suggjestions made to all voters who asked for instructions. (K., 47 .) I should say seven
or eight asked for instructions. (R., 46.) Usually Dowdigan and Dunning went in
together. (R., 44.) I was not there all the time. I did not hear any suggestions made
or any candidate other than for John M. C. Smith. (R., 45.) "
Mr. Shields. I will answer specifically the question as to wheth^ more than one
man was solicited.
The Chairman. He says there that seven or eight voters were infitructed and
solicited, and under the decision in this case of the Attomev General v. McQuade do
you claim that the solicitation of seven or eight votes would invalidate those seven
or eight votes or invalidate the vote of the whole precinct?
Mr. Shields. Yes, sir; because that is actual iraud undei* the Michigan law. If
they had only been instructed improperly in the votinjj^, if their ballots had been
marked improperly, then that is not actual fraud, and if it can be determined under
the decisions surely it can be deducted proportionately from the vote; but under the
case of Attorney General v. McQuade there were 13 of those kinds of solicitations, and
the Supreme (Jourt threw out the entire precinct. We contend that the purpose of
the law, if vou please, is to protect the honesty and inte^ity of the ballot and the
precinct and that it is better and safer to throw out the entire number than to palliate
it bv permitting fraud to go to a portion of it.
Mr. Frear. In that Michigan case, Mr. Shields, you say that that was decided so
by the court. In this case, as I take it, there is one witness who says there was seven
or eight voters instructed; that is the only testimony, as I understand, on that sub-
ject. What was the testimony offered in the Michigan case that was decided to show
that unfair influence had been attempted in the induction of voters?
Mr. Shields. That case, Mr. Frear, went to the Supreme Court not upon trial: it
went there over a question of pleading.
Mr. Frear. The facts were not shown?
Mr. Shields. The facts were not shown, except as related in the petition, and the
Supreme Court in the petition alleged there were 13 votes illegally solicited. In the
decision the court hela that if those facts were proven that whole precinct must be
thrown out.
Mr. French. Then, further, Mr. Shields, I think, as I recall it from just the one
reading, that these two men whom it is sJleged al^sted the one who asked for assistance
testified that only in that one case does that obtain, as that one witness has testified,
and in that one case the witness stated that the reason for it was that the voter was an
old man and seemed to be fumbling on a name and could not get the name, and this
man prompted him. and he said, '^Was it J. M. C.?'' The old man replied, "Yes;
that is the man. "
Mr. Frear. As I remember the record it says, " Wliat do you say as to Smith?**
Mr. Stephens. I think it was "James Smitn."
Mr. French. And he was a neighbor of Smith, an old gentleman, possibly trying
to think of the name, and under the i-ircumstances maybe could not think of his own
name, and this man suggested it. Is not that what the testimony showed?
Mr. Shields. That is what some witnesses swore to; that is what the men who
were doing this testified, and I never knew of a man doing an improper thing admitting
anything more than he had actually to do.
The Chairman. Did you take the testimony of any witnesses who claimed to be
solicited there, any voters?
Mr. Carney. No; we could not get the names of any; nobody seemed to know.
Mr. Shields. The theory, it would seem to me, would hold good if it was only one
vote, and they admit that.
Mr. Frear. Do they a<lmit that?
Mr. Shields. Yes.
Mr. French. He does not admit soliciting; he admits raising that question when
the man was trying to think of the name, and the man indicated to one other person
what he wantea to vote for and was stumbling in his mind; that is as I recall it.
Mr. Shields. Of course, we would merely be quarreling over the results.
Mr. Frear. That is the language.
CLAUDE 8. OABKEY V8. JOHN M. C. SMITH. 7
Mr. Shields. Would that one condition of that one vote prompt any reafionable
man on earth to protest about a condition existing so as to cause the rejoinder, '^ What
are you going to do about it?" and nobody denies that.
Mr. Frbab. We were just inquiring as to the testimony rather than in an argu-
mentative way. That is Mr. French's idea and also that of Mr. Elder. It does not
bother you to have us inquire at this time, I trust, because in this way we shorten
things.
Mr. Shields. Not a particle, and I would expect you to get at the facts and get
at the merits just as well as you can. I perhaps may have to apologize, because it
has been three or four montlis since I compilea that brief, and 1 had to refresh my
memory on the txain yesterday, and it will help me if you will bring in anything
that you desire to discuss, because I do not want to say anytliing that is not abso-
lutely correct. I want to be fair before this committee, and I want you to under-
stand m>r attitude. That is the condition, and that is the theory as to that precinct,
upon which we claim that it is illegal.
Mr. Fbear. That is the third wi^ of Charlotte?
Mr. Shields. That is the third ward of Charlotte.
There are the citations; those are the facts. There are more than perhaps I have
mentioned, but it is the condition that existed there. It is illeeal, as it is absolutely
prohibited by the election statute, and it has been determinea as absolutely illegal
oy the Michigan Supreme Court, and that kind of a precinct should be thrown out.
So much for ttiat precinct.
Now let us consider Sunfield Township, in Eaton County. In the township of
Bunfleld the law provides, as I have saia, and as I have quoted in my brief, that
we are just what was stated; and I might state first that there is a provision in our
election law that provides that a ballot shall not be handed out by any but a member
of the board; that it shall not be received by any but a member of a board; that it
shall not be counted by any but a member of the board; and the law further pro-
vides who shall constitute tne board. In the township of Sunfield they called in a
man by the name of Sayer. They appointed him instructor. He was an absolute
interloper into the election machinery of Michigan.
The Chairman. What was his quafification?
Mr. Carney. The record shows nim to bs a Democrat and that is what he testified to.
Mr. Shields. He is a Democrat, and a man who had no standing officially at that
election.
Mr. Frear. WTiy was he called in, do you suppose?
Mr. Shields. I rather think that perhaps in some of those communities they had
been in the habit of doing it.
Mr. Frear. For the purpose of instruction — ^throwing light on the voting?
Mr. Shields. I do not think it is that.
Mr. Frear. Witiiout legal effect?
Mr. Shields. It is because they used that method tliere of carrying on the election.
My impression is, and I do not state this to be correct, there was an election law back
some years ago that made that provision to have him selected and sworn, and they
i4)pointed this man, and every ballot that was got out at that election was got out
by him. That was a distinct violation of the expressed provisions of our election
law, and that condition — identically the same condition — passed on by our supreme
court in the case of McCall v. Kirby— 120 Michigan, I think it is — whicn is absolutely
on all fours, holding that every vote in that precinct was absolutely illegal and void.
The Chairman. Do you mean to say that your supreme court has held that where
a person not authorized by the statute does nothing more than sit and hand out a
ballot to a voter, that you dirfranchise the voter on that account?
Mr. Shields. Absolutely. The statute provides, and I may read from the brief,
pages.
Mr. Frear. Page 9 is the particular extract.
Mr. Shields. Yes; I will read the statute, compiled laws of Michigan, section 3640.
The Chairman. Is that all he did, hand out the ballots?
Mr. Shields. He went into the polls.
The arrangement of the booths in this voting precinct was such that the board sat
at a table on one side of the room, and on the east side of the booths. That Sayer, as
''instructor, '' was given ballots by the board and he took the position on the west
side of the booths and outside of each and every member of the board, and handed
out the ballots to the voters as they came in. The board could not see what the instruc-
tor was doing and the instnictor could not see what the board was doing, and the
instructor handed the ballots out on that side, and he admits in one case he went into
the booth. I want to be correct about this, because I hope that if I misstate it I will
be corrected. That he talked with others outside, and other testimony shows that
S CLAUDE S. CARNEY VS. JOHN M. C. SlIITH.
tbev heard the talking; that every one of those ballots were on that aide during the
entire time and were passed to the individuals as they came in, and then out past the
bbsrd, lianding them in as they went out. That was the identical condition in tbe
Kirby case.
Ib\ Pbear. Two of the three inspectors were Democrats and this man Sayer is a
Democrat, so there is no charse of fniud.
Mr. Shields. It was a frauaulent election in that it was absolutely ill^;al.
Hie Chairman. Do you claim, Mr. Shields, that the result would have been any
different if this man would not have been there?
iir. Shields. That is not for me to claim. We could not go back and count the bal-
lots that are absolutely illegal.
The Chairman. That would lead us to a difference of opinion, whether or not we
are bound by the Supreme Court of Michigan; that may be so. This is a question
that will come up later on.
Mr. Shields, t realize that.
The Chairman. You made claim that the result of this precinct would have been
different if this man had not been there at all?
Mr. Shields. That is a question I can not answer, Mr. Chairman. I do not know.
Nobodv can answer that si)ecifically. The procedure was identically the same diat
would nave been followed if the election had been ''fixed.'' The methods and pro-
cedure were exactly the same as if it were attempted to accomplish ill^al practice.
Mr. Frear. Now, if you can, give us the law.
Mr. Shields. I can.
The Chairman. I want to ask you another question. This man Sayer put his
initial on the ballot?
Mr. Shields. No; the initial was put on by another member of the board.
Mr. French. That is required to oe done, is it not?
Mr. Shields. Yes, sir.
The Chairman. \Vhen did he put them qn? Sayer furnished the voter with the
ballot?
Mr. Shields. The ballots are first in the possession of the board, and then one
member marks his initials under the perforated line on 50 of those ballots, and then
they are turned over to the man who delivers them to the voter.
Mr. French. That was Sayer?
Mr. Shields. As I understand it.
The Chairman. The ballots were in book form, bound?
Mr. Shields. Not bound; individual ballots, so many sheets of paper. Each ballot
is It separate one by itself, and they merely come in a stack.
The Chairman. In Ohio we have ballots perforated and bound.
Mr. Shields. Ours are not bound; they are perforated across the comer.
The Chairman. Your ballots are loose?
Mr. Shields. Yes, sir.
The Chairman. Are these ballots permitted to be distributed among the public
generally?
Mr. Shields. No, sir.
Mr. Frear. Do you have one Australian ballot on which all the names appear, so
that the ballot handed out contained all the ticket?
Mr. Shields. Yes, sir.
1 am going to read — it is a very short decision, and I take it for granted that the
gentlemen of the committee have sufficient lej2:islative experience to know that the
statement of facts is almost identical with the one here, and I am not Questioned when
I state this case is on all fours. As long as the c|uestion has been askea, I will say that
out supreme court has always been entirely Republican, with the' exception of one or
two members that happened to get on there years ago. Just then it was Republican
[reading] :
*' Grant, C. J. (after stating the facts). Manifestly, the election law was wholly
i^ored in the appointment of Mr. Kerr, in intrusting the ballots to him, and permit-
ting him to have free access to the electors after they had passed into the voting
precinct, and into the booths themselves. It is urged that the inspectors of election
acted in good faith, and supposed they had the right to appoint a man as an instructor
of election. It is difficult to understand how intelligent men should reach this con-
clusion . The law makes no such provision, but makes it the clear duty of one inspector
to keep possession of the ballots, and to hand them to the voters, after another inspector
has opened the package, and still another has put his initials upon them. It is due to
the members of the election board to say that there is no evidence that they acted
from' corrupt motives. If, however, this conduct can be sustained, and the plain
provisions of the law ignored, rascals can very readily make the same plea, and it
CLAUDE S. CABNEy VS. JOHN M. C. SMITH. 9
would be difficult to expose their rascality. These provisions of the law have been
held mandatory. (Attorney General v. McQuade, 94 Mich., 439; Attorney General v.
Stiljflon, 108 Mich., 419.) By a reference to the latter case, on page 421, it will appear
that the interpreter, an officer provided by the act, was stationed very near to, and
in i>lain sight of, the inspectors, and talked with the voters, as they came in, in a
fore^ language. It does not appear that there was more evidence of fraud in that
case than in this. That case differs from this only in two particulars. First, that the
conversation between the interpreter and the voters was not in the English language,
as it was in this; and, second, that the ''instructor" as he was called in this case, had
a better opportunity to secretly influence electors than did the interpreter in that.
If these provisions are mandatory — and we have so held — they can not be evaded
by showing that the parties acted in good feiith and that voters were not influenced,
llie law was intended to prevent just such transactions and chances to influence
voters, and courts can not fritter them away by permitting jurors to find that there
was no fraud and that voters were not unduly influenced.
"The judgment must be set aside, and one entered for the relator.
"The other justices concurred . * '
Mr. Frbar. Here is a board that has looked at the true reasoning of the supreme
court, if here is a board, a majority of them are Democrats
Mr. Carney. Mr. Frear, may I correct that statement? You made it once before
and it has also been made in the brief.
Mr. Frear. Yes.
Mr. Carney. The board, as a matter of fact, was made up of four members, two of
which were Democrats and two Republicans. I think that was stated in error.
Mr. Frear. Conceding that is a foct, and they should select an inspector or instruc-
tor, and he a Democrat, would it not be possible if there was a disposition to commit
fraud, that in any particular election they could make such an appointment? That
is, if the purpose was throwing out all those votes? Would it not be possible in this
ward if it was the disposition of that board and this instructor to have those votes
thrown out, to have an appointment made in that way so as to {>revent the opposite
candidate, who would be a Kepublican or Democrat, as the case might be, from having
the votes cast for him? That charge can not be put in this case, because there was no
disposition, so far as the political character of the board and the character of the
instructor is concerned. That charge could not be here, because, of course, there is
no claim that there is any fraud exercised in this case.
Mr. Shields. We do not claim that.
Mr. Frear. The point made by the court was that the instructor sometimes inter-
preted or presented argument. There is no such claim in this case that it was done?
Mr. Shields. Oh, yes; there is some testimony that he did talk to at least one, if I
recall the record correctly.
Mr. Frear. In favor of one of the other candidates?
Mr. Shields. I do not think the record shows what the conversation was about,
does it, Mr. Carney?
Mr. Carney. No.
Mr. BoRCHERB. It hangs not on what the political complexion of the board was or
who the board were for, because the man might be a Democrat and be working tooth
and toenails for a Republican, and the board might be Republican and doing the
same thing for a Democrat; and the political color of the board has not a thing to do
with it. The question is as to who tnese fellows were for and who they were against,
with me, and I would like to know something about that.
Mr. Frear. I was taking it up witli reference to this supreme court decision.
Mr. French. I think in connection with the argument that the supreme court uses
or its reason, suggests this, and I think possibly it was in the mind of Mr. Frear. Sup-
pose now, for instance, that this particular precinct were known to be an overwhelm-
mgly strong Republican precinct, say by 100 majority , by following out that particular
theory of tne Supreme Cfourt of iiichigan woula it not be possible for a frame up in
the hands of unscrupulous persons to place a person in that position illegally, and
then after the election should have been held to turn around and say, "Here is an
incidence where 100 votes now ought to be thrown out, or rather the entire vote of
the precinct, 100 majority for the Republicans, simply because they did not follow
the law."
Mr. Shields. Of course, those things are possible, Mr. French, but in order to make
it possible you should have to go back and find that in your illustration a community
that has 100 Republican majority, and therefore had township officials that were
entirely Republican, and that for some reason in their own ranks have desired their
entire township board to commit an illegal act and a criminal act, if you please, for
10 CLAUDE S. OABNEY VS. JOHK M. C. SMITH.
the purpose of bringing about a result; and if under your illustration they wanted to
do it that would not be impossible in Michigan.
Mr. French. One or two would be sufficient to do this; the other could be misin-
formed and acquiesce in something that, as a matter of fact, was illegal. The fact of
the business is in bringing this up I have in mind that which I was going to suggest
a little later on, but the chairman has suggested he will call it up later on, that is,
the view that the Congress ought to take of a case, notwithstanding the decisions of the
Michigan courts.
Mr. Shields. That is a point I will aigue later. I would just as leave aigue it now
or later.
Mr. French. I think we should get through with the e^ecifications, and then take
up that proposition. But the point then, further, we would like to know is whether
or not in this specific case there was fraud connected wititi the designation of this
man Sayer; whether there was anything of fraud in connection with his o(mduct in
soliciting votes or Smith, or anything of fraud in connection wilh that particular
precinct, because we de not know which way this committee will be bound to con-
sider it, and we want to view all of those questions.
Mr. Elder. It is really a technical objection, following out that decision.
Mr. Shields. It is tecnnical, my friend, in this way, that if you had lived up in
Michigan and been up against conditions, as I have, in election-contested case, a
county in which a Democrat goes into a community and files his petition for a recount,
and the first count of the first precinct or township in that coimty shows a difference
of 500 votes in his favor and the next morning when you go l>ack the ballot box
has been knocked open, and the fact they have been opened bars their being
counted.
Mr. Frear. That is hardly a fair argument to present to a committee that has not
the facts.
Mr. Shields. We are down here to try to give you the facts, the condition and
atmosphere and environment.
Mr. Frear. Do you not see where that would necessarily lead? We have to
inquire into elements of that case to see whether your statement is justified. We
have just finished another matter of equal importance and where there is as much
testimony, and our idea is to confine it strictly to the merits of the case. You are
very kind in answering matters fairly.
Mr. Shields. There is a condition that exists here in this particular district, and
that is all we can ask you gentlemen to consider.
Our attitude on this matter is that under the election laws of Michigan and under
the decision of the Supreme Court of Michigan, point blank, that that entire vote
in that precinct was aosolutely illegal and voia; that it is not necessary for us to
go back and take up any specific instances and show whether there was any gr^tter
fraud than that; that that in itself is the biggest possible fraud.
Mr. Frear. Was there any specific fraud excepting the fact that this man was
in a position to say something?
Mr. Shields. And the record shows he did talk; that is all.
Mr. Frear. Was this man talking in favor of one candidate or another?
Mr. Shields. The record does not show that, and I do not know.
Mr. Elder. The constructive fraud would be in that it is illegal?
Mr. Shields. Yes. Are there any further questions on these conditions in Sun-
field?
The Chairman. Have you in your evidence undertook to segregate how many
people he had instructed?
Mr. Shields. I do not think so, Mr. Chairman — in the evidence undertook to
segregate the number that he had talked to in Sunfield.
Air. Carney. The whole evidence on that question was on cross-examination of
Mr. Sajrer, who appeared — if you will permit me to state that. I do not believe
Mr. Smith was pre^nt at that particular hearing. This man Sayer was in Florida
at the time this original case was taken, and he was brought in by Mr. Smith. On
cross-examination he testified that one of the voters, I think, marked his ballot out-
side of the booth and on his table. Whether he talked with him or what he talked
about does not appear.
Mr. Frear. Do you know the page of the record?
Mr. Carney. Yes. You will pardon me if I give you some of these facte. Some
of them may have escaped Mr. Shields's attention. There are about 500 paces of
the typewritten stuff, and it would be impossible for him to be familiar with it all.
Mr. Shields. There is no way of getting at it.
Mr. Carney. 1 will give you that from the brief. It is quoted verbatim, record
437 [reading]:
OLAXXDE S. OABNBY VS. JOHK M. 0. SMITH. 11
"I remember of two men calling me up in the booth and asking me some queiftiona
about the ballots, about how to mark them, and I told them how to mark them. I
saw one man mark his ballot outside before he went into the booth. He marked it
at my table there.'' (R. 437.)
Mr. Shields. Just previously in the brief he is quoted as saying [reading]:
''The voting booths were along here, and I was on one side ami the board was on
the other. I delivered a ballot to each voter that day. I did not go into the booth
with any voter, but I went to the door to show them. I remained at the polls hrom
early in the morning until 12 o'clock and until 5 o'clock. I delivered eadi ballot
that was voted." (R. 433-434.)
It is very peculiar, if you please. With one exception, these thines all happened
there in Eaton County. There was one case down on Hillsdale in wnich three crip-
ples were brought downstairs, and the board went down and took their ballot and
went back and deposited it; but these conditions all arose in this county where vote,
perhaps a great deal of it, could be attributed to the fact of Smith's home county and
personal acquaintance.
Mr. Frear. Here is what he testified to. The question was:
"Q. How many different men, would you say, you did that with that day? — ^A. I
think two.
/'Q. There mifht have been more? — A. I don't think of any but two."
Mr. SHiELns. The principal strength of the proposition, gentlemen, is that the
opportunitv which the supreme court says is there, and absolutely declares, as I
have stated —
Mr. Elder. There is no neceasit^r of showing actual fraud.
Mr. Shieldb. Yes; the provision is mandatory. There is no use going into general
diacuaaion. The fact that you are here in Congress shows that you are men tiiat have
been through situations in which you appreciate the fact that the only protection that a
candidate has is in the law, and if he can not eet it from there he can not get it anv-
where else. Some of you may have come from States where they were overwhelmingly
Democratic and some of you may be Democrats who come from overwhelmingly
Republican States, and if you have you know the only possible protection a candidate
has is to have the law as it exists emorced fairly and construed as it stands — the only
poesible protection you have.
In the case in which this came up, McCall v. Kirby, the vote was returned in favor
ol Kirby as Republican. McCall asked for a recounting as a Democrat, and the
circuit court duly threw aside his contention and held wil£ the Republican that that
was not a fraud. Now, a Republican supreme court handed down this decision I have
just read you. It is in those conditions, if you please, that you have got to look for
your protection. You have got to look to the law. It is somewhat in Michigan as it
undoubtedly is in other States. It has been a long and peculiar strife, but when the
condition is such that a Republican supreme court will unanimously take the position
they did in that decision and hold that that law should be construed as they have
construed it, it seems to me that their legal conclusion, when ihey had the same
opportunity to use discretion that this committee in this House has, m spite of every
possible private or personal or political tendency they might have, would oe sufficient
evidence for jou to dhow that that is a most valid law ana interpretation in Michigan,
if you are going to have election laws there that represent the wishes of the people in
any way. It is the only protection they have ana sometime that is not very much.
I am not speaking for the Republican Members. I want to tell you that conditions
make it pretty difficult for the minority party which we have there, and if they can
not have the protection of the laws and not have the law mean just what it says, it is
a peculiar situation.
1 will now address myself to the second ward in Charlotte, if there are no further
questions on Sunfield.
That is covered again, as I have stated, very fully in our briefs, and in that condi-
tion it is somewhat similar to the third ward of Charlotte, but in a different way.
The Chairman. What page in your brief?
Mr. Shields. Page 10 of my brief.
In the second ward of Charlotte one of the characters in behalf of Mr. Smith was one
John C. Nichols. Nichols was candidate for circuit court commissioner. The election
law of Michigan specifically provides, as quoted in the brief, that no candidate for any
office shall be a member of the board. He testified in the taking of the testimony
that he was a lawyer. He was a candidate for circuit court comnussioner and he
knew on election day that he had no right to participate in the working of that board.
With that knowledge, witii that law^ yet he goes in and takes the place of a man and
takes ballots, under the condition, if you please, where in taking the ballots on one
side of the booths and ^e board on the other that he could not be in the presence of
12 CLAUDE S. CARNEY VS. JOHN M. C. SMITH.
the board all the time. He even at sometimes handed a ballot to a voter on that side
and went over on the opposite side and put it in the box.
Mr. Carney. That is not correct.
Mr. Shields. Mr. Carney, gentlemen, says that I am in error.
Mr. Frear. I was trjring to get the location of the booths and the ballot box.
Mr. Carney. I can give you that. The situation of the booths was very much the
same as at Sunfield. It was impossible for the other member of the board to see the
member that was depositing the ballot. Mr. Nichols during the time — ^that is in the
dispute, but he teatined to a certain time, and our testimony shows that it was an hour
ana a half — ^he stayed on the side of the booths where the ballot box was, away from and
out of sight of the other members of the board. The reference Mr. Shields makes was
to another instance which happened in the particular precinct. There is no point like
that.
Mr. Frear. He handled the ballots after they were marked by the voter?
Mr. Carney. Yes, sir; and put them in the box.
Mr. Shields. I am going to digress for a moment to refer to the record and show the
facts, because it strikes me, ^ntlemen, that the important feature of this contest is
for you men to get a conception of the situation, the atmosphere^-call it political or
otherwise, if you please — in Michigan and in this particular district, so that you can
understand just exactly the kind of a case and exactly the kind of a condition that has
brought about the decisions of the Republican Supreme Court of Michigan and make
them not technical law, but reasonable, fair law. It is the conditions that have com-
pelled them to come to this conclusion.
With Nichols you start with the proposition that he was a candidate for circuit court
commissioner and knowingly violated the election laws of Michigan. He swears that
he knew it, and smiles when he savs it.
Mr. Frear. Where is that? I have heard it quoted a number of times. I was
wondering what the exact language used there was.
Mr. Carney. No; he turned out to be Mr. Smith's attorney afterwards. If you will
just bear this in mind, this same man, Nichols, was challenger for the Republican
Party at the other precinct — by the wav, I might say that the office of circuit court
commissioner is a very, very minor office. He afterwards turned up, between the
date of election and the day of the board of county canvassers, as newly appointed
county clerk. On an occasion when I appeared before the board and asked to have a
certificate corrected he advised them it was too expensive to get the board of that par-
ticular township down to make the correction, and turned up the next day, but one,
60 he testified, m the pay of Smith, and procured an affidavit, which was afterwaidii
suppressed, from the members of the same board, which, while not exactly false upon
its face, really concealed the true situation in some few townships. In other words,
he was all the way through this contest, from the election until
Mr. Frear. Is that aflfdavit in the record?
Mr. Carney. Yes, sir; and the proof is in the record. He has answered early in the
examination you refer to. I will find it for you in a minute.
Mr. Shields. It is on page 330, near the bottom [reading]:
**Q. Did you act or assume to act on the election board m doing that? — A. No, sir.
"Q. You were not performing any of the duties of any of the election board? — A.
Just passing ballots.
**Q. That was one of the duties of the election board? — A. Yes, sir.
^'Q. And not a duty of any citizen not a member of that board as you understood
the law? — A. Yes, sir.
" Q. You understood the law in that regard that day before you began doing that,
didn't you? — A. Yes, sir. ,
**Q. You were a lawyer then? — A. Yes, sir.
**Q. You were a candidate for office too, were you not? — A. Yes, sir.
" Q. You knew that as a candidate for office you didn^t have any business to receive
ballotfl, didn't you? — A. Yes, sir.
*'Q. You knew that to be the law? — A. Yes, sir,
" Q. Well, knowing that to he the law you went in and acted as one of the inspectors
of that election? — A. 1 did not.
"Q. In place of one of the inspectors of that election, didn't you? — A. I deposited
four or five ballots at the request of Mr. Knowles.
'*Q. When you were depositing? those ballots you were acting as inspector?— A.
I just did the manual work; there is no question about that.
**Q. You understood this to be the law at that time?"
Mr. Shields. Then, the objection of Mr. Frankhauser.
*'Q. I show you a book hero, Revision of 1911, State of Michigan, Laws relating to
Elections, compiled under the supervision of Frederick C. Martindale, secretary of
CLAUDE S. CABNEY VS. JOHN M. C. SMITH. IS
state, Lansing, Mich., and call your attention to page 43 under the heading 'Manner of
conducting general elections,' being act 190, P. A. 1891, as amended. The people
of the State of Michigan enact: (139) 3612. Section 1. That at all elections at which
any presidential elector, Member oi Congress, member of the legislature. State or
county officer or circuit judge is to be elected, or any amendments to the constitution,
the supervisor, two justices of the peace not holding the office of supervisor or township
clerk whose term of office will first expire and the township clerk of each township, and
the assessor if there be one, and an alderman of each ward in a city shall be tne in-
spectors of election: Provided^ That in all voting precincts where by special enactment,
provisions exist for designating inspectors of election said provisions are not to be
superseded, but such officers smiU be the inspectors of election under this act. And
provided further ^ That no person shall act as such inspector who is a candidate for any
office to be elected by ballot at said election. I have read that correctly? — A. Yes,,
sir.
'^Q. You knew that to be the law when you went into that second ward at the
polls and deposited ballots in the ballot box?— A. Yes, sir.
'*Q. In the face of knowing that, you deliberately did that act? — A. I did at that
time; yes, sir."
He was the same man, if you please, that on the 12th or the 14th of November^
claimed to be county clerk, and the situation there was that the county clerk who
run for the legislature, tliat in our State the officers were incompatible, and the man
could not hold it, and yet the day before election, and for 10 or 12 days, nobodv seems
to know that any change had taken place, and on the 14th of November Mr. Nichols
then announces that he has been county clerk, that the county clerk resigned and
he has been county clerk, appointed to fill the vacancy, since the day before election.
Mr. Carney goes further and suggests and asks that the officers of Sunfield and Carmel
Townships l>e called in, so that some investigation may be made of returns which Nichols
says was unnecessary and that it was no use going to the expense and refuses to do it,
and yet the next dav and the dav after he went down through these townships getting
the affidavit, and aamits himself that he was in the pay of Smith — ^an affidavit, if you
8 lease, which counsel for contestee first tried to suppress and deny having it, and
lichols afterwards swore that he delivered the affidavit to Smith, and two days later
it was produced.
Mr. Frear. Does, the evidence show he was in the pay of Smith at -the time of the
election?
Mr. Shields. I do not think so.
Mr. Frear. Subsequently, when this affidavit shows that he was, then?
Mr. Carney. Yes, sir. I appeared before the board, I think, either the 12th —
one dav intervened between that time, at any rate, and then this fact never appeared
imtil tne time of the hearing that he was in Smith's pay.
Mr. Frear. It appears in the record that he really was in Smith's pay?
Mr. Carney. Yes, sir; he said he made this trip for Smith, as his attorney.
Mr. Frear. After he made the affidavit?
Mr. Carney. Yes, sir.
Mr. Frear. How long after the election?
Mr. Carney. I should judge about 10 days. It was within the week that the
county canvas was made.
Mr. Frear. Is there any contention that he was in the pay of Smith, or that he
was acting for Smith at the final occasion?
Mr. Shields. It shows it was his prime interest in that election.
Mr. Frear. There is nothing in tne record?
Mr. Shields. I do not think so.
Mr. Carney. There is this in the record — there is some contention as to the mean-
ing of the statute, in all fairness to the other side, with reference to the opening of
the returns. Our contention is that the true meaning of the statute is that the returns
are not to be opened until the meeting of the county canvaasers. The record shows
that Nichols not only opened the sealed packages, which we contend was not proper,
although no decision has been rendered upon the question, before the meeting of
the board of canvassers, but that he permitted Smith's son and Mr. Smith's daughter
to have these opened packages outside of the office of the county clerk and in their
p>osse^ion, and in the possession of this man Pray, who then was not an officer of
any kind.
The Chairman. Were those tally sheets and tally books the same tally sheets or
tallv books that the board of county commissioners would canvass?
Mr. Carney. The statute provides they must canvasB those tally sheets.
Mr. Frear. Was there any discrepancy that was reported by the inspectors at the
election?
14 CLAUDE 8. GABNEY VS. JOHN M. C. SMITH.
Mr. Carnbt. That iB, were the returns-
Mr. Frbar. Yee; I know, but were they canvafsed that night at the election?
Mr. Garnet. No. You do not understand — not canvafsed, simplv sealed.
Mr. Frkar. You make a count of your tally sheets at the night of tne election, and
that is ffiven publicity, of course. Was there any question about that — any change?
Mr. Carnbt. There were left me 200 and odd votes until these votes became cir-
culated publicly, so £9ir as press accounts, I mean, of course, unofficial.
Mr. Frbar. Did you find unofficially that there was a discrepancy in that p«F-
ticular precinct?
Mr. C/arnbt. I could not answer that question, but this was not any particular
precinct; this was all the returns from the whole county of Eaton. You asked me if
there is any discrepancy. There was this much of a discrepancy: Nearly every
Republican paper, but with one or two exceptions, and the Associated Press accounts,
that IB, their message accounts, gave me the election at between two and three hun-
dred, and to such an extent tluit Frederick Martindale, a Republican secretary of
state, certified my name as the man elected, from the Associated Press and the news-
paper accounts, to so on the unofficial roll. There was that much of a discrepancy
turned up afterwards.
Ml. Frbar. You appreciate that the first reports are not necessarily of any value,
because a newspaper report may leave out a whole precinct?
Mr. Carnbt. But you ask if there was a discrepancy, and that answers your quea*
tion, because every one of these reports came to the same conclusion.
Mr. Eldbr. How long after that election before it was found out that according to
the returns Smith was uected?
Mr. Carnbt. It was two weeks, in round numbers.
Mr. Eldbr. Was Smith claiming the election during this time?
Mr. Carnbt. I think so. He can answer tiiat better than I can.
Mr. Smrth. I did not hear the Question.
Mr. Eldbr. I have never met Mr. Smith. I asked if Mr. Smith was claiming the
election before the county board?
Mr. SMrra. The Democratic county chairman in my county figured the vote the
next day and tabulated it, and it never was changed a vote from the time he gave out
these returns.
Mr. Garnet. He never saw the returns until they capae back from the possession
of Mr. Smith's son and daughter.
Mr. Frbar. There wa« one point there, Mr. Carney: When you say these ballots
were opened at that time, by this man Nichols, was any one else present when he
opened them? Where is the testimony about that in the record?
Mr. ('arnbt. The votes came in one by one at different times.
The Chairman. I would suggest leaving that until we get to it, and let him finish
ward 2.
Mr. Shields. Your question, I think, is entirely pertinent, because it includes what
happened to the returns from ward 2.
Mr. Carnbt. Nichols turned up afterwards as county clerk, and had custody of a]I
the papers.
Mr. Shields. On election night all of the returns have to be counted, of course,
and have to be counted continuouslv, and then the ballots and one tally sheet is put
into the ballot box, and the other tally sheet is mailed to the county clerk. They ars
mailed or carried to him. The records and certificates that are made, signed by the
election officials, one of them is sent to the judge of probate or register of probate, who
is a member of the canvassing board, the other is sent to the county clerk, together with
the second tally sheet. The controversy between us is as to whether the county clerk
has any right to open those papers until before the county canvassing board convenes,
which meets a week from the Thursday following the election.
The Chairman. Mr. Shields, if I understand vo^ir law, the inspectors and clerks
make out a tally sheet, as a result of the vote, in (duplicate?
Mr. Shtblds.* Yes, sir.
The Chairman. One set goes to the probate court and the other to the county clei^?
Mr. Shields. Yea. sir.
The Chairman. Which set do the county canvassing board canvass the vote from?
Mr. (Garnet. The statute provides it must be canvassed from those, of the county
clerk.
The Chairman. Who is the board of county canvassers, the judge of probate, and
county clerk?
Mr. Carnbt. The board, I think, is appointed by the board of supervisors.
Mr. Shields. It is a committee of three. They are individuals fixed and appoint^
by the board of supervisors at the previous session, in October.
CLAUDE 8. CABKEY VS. JOHK M. C. SMITH. 15
The Chaihuan. Have you attached to the orkrinal papers here a set of tally books
and tally sheets, with the sheets showing results in the precinct?
Mr. Smith. They are in the possession of the clerk.
Mr. Stephens. Allow me to follow up what Mr. Frear was asking. It was just
stated that one of the tally sheets was sent to the probate judge and one to the clerk?
Mr. Casnby. Yes, sir.
Mr. Stephens. Was there any difference between the tally sheets sent to tha clerk
and afterwards given to Mr. Smith's daughter and son and the one that went to the
probate judge? *
Mr. Carney. There was one set, so the testimony showed, although it was after-
wards disputed, ne^-er returned to the probate judge. There were six sets at the
probate's ofRce that were opened. In mimess, it might have been opened in the
mail. Some of the records showed they were. In fairness to Mr. Smith on this
proposition I make that statement. 1 hiis is alleged in the petition. 1 hat question
has never been passed upon by the supreme court. It looks on the face of that statute
and from all intents ana puiposes as if no one should open these returns until on the
day the canvassing board should meet, and it has be?n practiced in some of the
counties. We found afterwards they had done this, but never to let them go out of
their possession and let them be hawked about, as was done in this case; but that has
been the practice in our county. In our county they have been kept under seal
and kept in the vault. That is the condition, I think, they had in three or four of
the counties. We found that condition existing.
Mr. Fbear. Where is that reference to Mr. Smith's son and daughter in the
record?
Mr. Stephens. On pa^e 38 you will find that.
Mr. Shields. I thiuK it is the bottom of 43, too, in Mr. Robinson's testimony.
Mr. Frear. Where were these examined; in the clerk's office?
Mr. Carney. By whom?
Mr. Frear. You said, as I understood, that Mr. Smith had some of these returns?
Mr. Carney. I said that testimony shows that Mr. Smith's son and daughter were
seen coining into the clerk's office with these books open. They did not appear as
witnesses to explain it, but I think some statement was made that they had been
over to the treasurer's office to put them on the tabulator.
Mr. Frear. Which books?
Mr. Carney. All of the returns in the different election places.
Mr. Stephens. They tabulated them at the office of the treasurer, is what the record
shows.
Mr. Bouchers. If the chairman please, I would like to refer here to that tally sheet
in the box now. I have found what they say here and what the law says [reading]:
'* After the ballots are counted they shall, together with one tally sheet, be placed
in the ballot box, which shall be securely sealed in such a manner that it can not be
opened without breaking such seal. The ballot box shall then be placed in charge
of the township or city clerk, but the keys of said ballot box shall be held by the
chairman of the board and the election seal in the hands of one of the other inspectors
of election."
That will be found on page 19 of the brief of the contestant.
Ifr. Carney. We discovered in the record that very few of the electors properly
interpreted that law. and in many instances they were all put in a bundle and sent
to the township clerx and then to the city clerk, and there is not over half of them in
the boxes at all.
Mr. Borchers. The contention here is that the law does not require one of these
tally sheets to be placed in the box after sealing, and my impression is, according to
the law, it did say that, and this surely demonstrates that that was the law, and the
oUier was forwarded to the county clerk.
Mr. French. Do you raise that question in challenging the validity of the vote in
all precincts in which failure occurred?
Mr. Carney. The question is raised in the condition. It is not discussed in the
brief, as I recall it, more especially so in the conduct of Nichols.
Mr. French. Do you apply it to all these precincts?
Mr. Carney. It applies equally to all.
The Chairman. We think No. 2, where Nichols handed out the ballots — ^he said in
hi& testimony he only handed out four or five. Do you claim that he did anything
else in that district? "
Mr. Carney. He did not hand out the ballots. You misunderstand that. He took
the ballotfl and put them in the ballot box.
The Chairman. He handed four or five.
16 CLAUDE S. CABNBY VS. JOHiT M. C. SMITH.
Mr. Shields. I do not think there is any contention there, except ae to difference
as to time. He claimed that it was from 20 minutes to hiJf an hour, and other wit^
nesses that it was from an hour to an hour and a half.
The Chairman. Do you claim that in addition to supplying ballots he influenced
anv voters?
Mr. Shields. I do not think anything in the record shows it. excepting if a man
knows he is running for office himself he should not inject himself into that machine
Mr. Frear. Did tie inject himself?
Mr. Shields. Yes. sir.
Mr. Frear. I only read over hurriedly that he was asked by one voter at the time
the insDector stepped out to remain there, but as to the question as to whether he
injectea himself, and as to the question whether in the judgment of the inspector
who remained with him, was that there were 7 or 8 ballots tnat were put in during that
time. He testifies that there were 4 or 5, but ^e testimony of your witness was that
he might have been there an hour and a half. That is the situation as to the two sides?
Mr. Shields. Yes.
Mr. French. Is it not true that he himself was an inspector — a Republican
inspector?
Mr. Frear. He was simply asked to act as an inspector by one of the others.
Mr. Shields. He was not qualified in any way.
Mr. Carney. He claimed to be a challenger.
Mr. French. Would not that ^ve him the right to circulate there to some extent?
Mr. Shields. No. It gives him the right to be there for challenging any votes
that he cares to challenge. It does not give him
Mr. Elder. That would be the reason he should not act as an official.
Mr. Shields. The conditions show his additional disqualifications.
Mr. Frear. Is there anything in the record showing the political color of these
inspectors?
Mr. Carney. The inspectors?
Mr. French. How he came to be involved' at all was through one alderman being
taken sick.
Mr. Shields. We say not. His entire history shows he became involved because
he insisted on
Mr. French. W^as not one of the aldermen taken sick, and did he not call upon
another man to take his place, and then the votes were deposited by Xichols at the
request of one of the amermen, and that he deposited 4 or 5, the chairman says,
and, as I recall the testimony, 6 or 7?
Mr. Carney. Bearing on tnis question, the character of this man and what he has
been| perhaps would be something that the committee would be entitled to. The fact
is that he was formerly Justice of the peace, and was charged substantially wiUi
embezzlement and conspiracy, and under a resolution of the board of supervisors he
came across with the money that he had embezzled.
Mr. Frear. Is that in the record?
Mr. Shields. That is in the record, showing what kind of a man this fellow is.
Mr. Stephens. \VTiat is his name?
Mr. Shields. John Nichols.
Mr. Frear. Was he convicted of embezzlement?
Mr. Shields. No, sir.
Mr. Frear. Or conspiracy?
Mr. Shields. The record shows, as I stated, he was a justice of the peace; that this
lesolution was reported to the county board; and that afterwards— after, I think, the
resolution provided they should take steps to remove him from office — they made a
settlement with him, and he agreed to pay back tlie money, if certain portions of the
resolutions were withdrawn; and he paid back the money.
Mr. Frear. That he agreed on that condition?
Mr. Shields. Yes, sir.
Mr. Frear. Did he so testify?
Mr. Shields. Yes, sir.
.Mr. Borchers. I would like to ask a question. The statement has come up that
he announced himself as being county clerk. I would like to know if he, as county
clerk, received this copy of Uie tally sheet, as the law requires to be sent to the
county clerk. Do you Know anything about it, or does the record show?
Mr. C'arney. The record shows that he was in the office. He was deputy, as well,
and handled it and gave out the returns, and claimed he had tabulatea themi when
our boys went over there to get the facts; and at that same time gave out the returns
and gave out a statement, which was 112 less tlian it was then. Tliis was after he
put them on the adding machine and opened the official package.
CLAUDE S. OABNBY VS. JOHN M. C. SMITH. 17
Mr. Frear. What is his official position now?
Mr. Carney. I do not know.
Mr. Frear. Has he any official position?
Mr. Carney. I could not answer.
Mr. Frear. Is there anything in the record showing tliat?
Mr. ('arney. He is circuit commissioner, unless he has resigned.
Mr. Frear. Appointed by whom?
Mr. Shields. Tnat is an elective office.
Mr. Frear. By the entire county?
Ml .^Shields. Yes.
Mr. Frear. And then, of course, he would have the right to suggest that in the
estimation of the people he was justified in his position.
Mr. (^arney. It would not indicate anything. It does not make any difference
who would run, if you want my judgment on it. Such officers go in with the ticket.
Mr. BoRCHBRS. What right would that have given him to indicate to the people
that he had the right?
Mr. Frear. I do not know. I am not discussing the question.
Mr. BoRCHERS. I understood >ou to make the statement that his being a candidate
would give him that right.
Mr. Frear. No; that he had the confidence of the people.
Mr. BoRCHERS. He was simply a candidate at that time.
Mr. Frear. I am speaking now about their confidence, as to the question of his
being chmi^d with embezzlement, rather than ^oing to the question of character. I
understooa his character was severely in question. The people had elected him to
a county office, is what I }iave reference to.
The Chairman. Suppose we take up the next.
Mr. Shibldb. I want to say in that connection, the same cape, McCall v. Kirby,
decided this point-blank, that a man not a member of the board handling the bal-
lots, receiving them and nutting them in the box — the language is exactly applicable
to tnat, and f have alreaay read that decision.
The ('HAiHMAN. A parallel case?
Mr. Shields. A parallel case exactly.
The township of Carmel: In that township, at 2 o'clock in the afternoon, they
opened up the ballot box, laid the ballots out upon the table, and let two men go
anead and coxmt, and reclosed the ballot box and went on receiving ballots and
putting them into the ballot box, and as to the ballots turned out on tne table, the
Doard turned them over to two men, who proceeded to count the ballots in the same
room where the election was being held, and these men passing by, one ballot fell
on the floor and some voter picked it up and put it back on the table.
Mr. Frear. What was the reason for that on that occasion?
Mr. Shields. The only reason I can give Ls that their ballot box got full.
Mr. Frear. You get that from the record, do you not?
Mr. Shields. Yes; I was not there.
Mr. Carney. The record shows that no provision at all was made for anvthing of
the kind, and in fact there was not any good reason for that, because there was
another box that could have been used.
Mr. Frear. You sa^ that is the real reason?
Mr. Carney. Yes, sir.
Mr. Frear. Does not the record show that the parties who had charge of that
ballot box opened it for that reason?
Mr. Carney. Yes, sir.
Mr. Frear. We want the record particularly, and then your views.
Mr. Carney. The record also shows, by the supervisor, that there was another box
there that was empty.
Mr. Shields. I said the recod shows the reason was that the ballot box was full and
they wanted to use the same box again.
The Chairman. The reason you gave, Mr. Carney, was the general practice to do
as they please?
Mr. Carney. The reason it was opened was that they did not seem to pay any
attention to the rules. This man knew he was violating the law, as Nichols dia.
Mr. Frear. This was not Nichols.
Mr. Carney. I say, ''as Nichols." He said he knew it was a violation of the law,
and knew he had no right to do it.
Mr. Shields. Simply they had no right to do that. It is set out in the statute that
nobody has any right to touch the ballot box until opened for the day. Supposing the
number of ballots exceeds or is less than the number on the ballot list. Then they
21023— 1»-
— J
18 CLAUDE S. GABNEY VS. JOHN M. C. SMITH.
have got to, too plainly, to make them even, and nobody has the right to open the box or
touch it in anv wajr until the polls are closed for the day. In some parts of the State—
for instance, Detroit — thev have a specially chartered provision that gives the right to
a 2 o'clock count; but it does not apply out in this place and out through the country
district or outside the city of Detroit. You take those conditions as we see them, and
nobody has a right to touch those ballots except as officials, and then at the proper
time and place; that that was violated openly, specifically, glaringly, and they opened
it in the middle of the afternoon to count — two men not members of the board. I do
not think there is anything in this record to show how they used this information, if
they used it at all, but right in the sight of everybody and of the voters goin^ by; that
that of itself is a specific, open , and improper violation of the law that leaves it possible
for men to make improper use of the information, and illustrates the spirit ana atmos-
phere that pervaded this whole county. I do not say there is any specific instance in
the record.
Mr. Freab. Afr. Gushing, who was a Democrat, according to the record, so testifies,
himself; he was sworn to count these ballots, and that he did so in company with
another man appointed by the board, whether they had the authority or not; and the
reason given was that the ballot box was full at the time and tJiey had to make space
for the additional ballots. He so admitted, and that he was sworn before he counted
the ballots. The record shows that.
Mr. French. -Ue was the Democratic challenger who acquiesced in this method of
counting the ballots, too, did he not, according to the record?
Mr. Shields. He did it.
Mr. French. Before the box was opened, even; and, as I understand it, he and one
other candidate for a county office acquiesced, as a matter of procedure, and they all
accepted it as an emergency measure in g(X)d faith. That appears to be the record, as I
understand it.
The Chairman. How many ballote did they count that aftermoon?
Mr. Carney. I think around 160 ballots.
Mr. Stephens. About two-thirds of tlie number, it says.
The Chairman. Do ^ou claim, Mr. Shields, that the counting of those ballots affected
the result in that precinct?
Mr. Shields. I do not claim that, because I do not know, Mr. Cliainnan. There
is no way of determining that, and I hope you will get into the spirit of our contention.
The Chairman. I have got the spirit of your position exactly. [Laughter.]
Mr. Shields. Not my spirit; the spirit that exists. The same condition that will
permit and bring about these violations of law is such we are unable to go back of
them to see whether good or bad. I do not want to state that this was done with the
deliberate intention of committing crime, when I have not any proof. I am showing
the conditions that existed. We have not any proof back of tne ^t that they ^Ua
violate a specific provision of law.
^&. French. Will you let me ask a question right there?
Mr. Shields. Certainly.
Mr. French. Did it occur to you that Congress might follow precedents in other
States that might not coincide with the precedents in Michigan, and that it might
be advisable to go into the facts in each particular case?
Mr. Shields. Certainly.
Mr. French. For instance, in this case if it were to be found that the election offi-
cers proceeded contrary to the law of Michigan, I assume that your statute would
invalidate the votes of that precinct. Did it occur to you that the Congress, being
the judge of the Qualifications and elections, might inquire into the intent?
Mr. Shields. Yes, sir.
Mr. French. Might inquire into the question of whether there was fraud?
Mr. Shields. There is no question about it.
Mr. French. And if there nad been apparent fraud, you would have brought that
out?
Mr. Shields. If we had the proof, if the record showed it — ^we are on common ground
theroi my friend.
Mr. French. Is it a violation of the orderly procedure, as you understand it, under
the law?
Mr. Shields. In this particular one it is violation of orderly procedure, as you put
it. I see ill that differences in the Nichols case and soliciting cases in those precincts;
that, I insist, is a specific fraud.
Mr. Frear. Between ourselves, I think this is a far more dangerous practice than
exists, but I have assumed from the record itself that the parties were acting in good
faith.
CLAUDE S. GABNET VS. JOHN M. C. SMITH 19
Mr. Shields. For myseK-
Mr. Carney. May I just make this suggestion to Mr. Frear on that proposition?
It might not amount to actual fraud, but you let clever politicians know in the middle
of the afternoon what one precinct shows, and I will venture that it can be made up
in a perfectly legitimate way, outside of the fact that it is known or the basis for
changing or using the information to an extent that you can not estimate even.
The (^AIRMAN. The worst you can sav here is that you do not charge actual fraud,
but it did destroy the secrecy of the ballot?
Mr. Shields. Absolutely.
The Chairman. Proceed, Mr. Shields.
Mr. Shields. I do not think it would be necessary to show further as to that town-
ship. That is the condition, and the authorities are cited and the statute is right
there.
I want to pass to the township of Winsor and discuss the situation as it existed
there.
The Chairman. What is the page?
Mr. Shields. On page 14, beginning at the bottom.
Mr. French. It is wrongly numbered; it should be VI instead of V, as the pre-
ceding one is also numbered V.
Mr. Shields. You are correct. That is the first time I noticed that, and I am
much obliged to you.
The provisions of the statute are stated in my brief there, that require the initialing
of ballots and the correct initialing of them. The law has gradually developed in
Michi^n, as in other places. At first it had to be initialed on the back, then had to
be initialed on a certain corner and then another comer. It has, however, come
to the position where the ballot must be numbered in the upper right-hand comer,
should be perforated, and the initials of the inspector should oe directly under the
line, so that the initials are upon the ballot in the box, and when it is being counted,
for the purpose of determining, I suppose, that it is a legal ballot, and the statutes
provide that no ballot without an initial shall be passed out by the inspector, that no
oallot without the initials upon it shall go into the box, and that when the box is
opened if there is any ballot without an initial it must be rejected and thrown aside.
In the township of Winsor the returns were sent in, and under the laws of the State
of Midiigan — I am going to be frank about it — ^the ballots after the count shall be
returned to the ballot box and it shall be sealed up and kept until the next succeeding
election. Not a word of the condition of the ballots in Winsor Township became
known until the time to use the ballot box in April of 1913, the next succeeding
election, when they should be opened, taken out and destroyed, and the box used
for the election then coming.
The Chairman. WTiat is the object of preserving those ballots?
Mr. Shields. I suppose that the object is so that in case of a recount, which they
have a ri^t t« after some considerable period after election. That is the method of
preservurg the box for another count.
Mr. Frear. Who keeps them?
Mr. Shields. My impression is that the clerk keeps the ballot, the chairman keeps
the key, and a third keeps the seal. I realize I ougnt to know all these things specif-
ically. One member of the board keeps each. \\'hen they were opened up in the
spring for the recount, it was found tnis board had either ignorantly kept still or
paid no attention to it. It was then discovered that not a single ballot had the initials
upon them. Then Mr. Camev learned that — the election was the 5th or 6th of April
and he learned it on the 12tn — and went over there on the 14th, investigated and
filed his additional notice on the 18th and served it.
The Chairman. WTiat is the vote in that precinct?
Mr. Shields. The original vote was Smitn 174, original vote for Carney 92, a dif-
ference of 82 votes.
That exact provision has been covered by the Michigan Supreme Court, holding
absolutely void the entire returns of the precinct.
The Chairman. I think there is more meat in that provision than anything here-
tofore offered.
Mr. Shields. That is the way we look at those things.
Mr. Carney. The statute provides that.
Mr. Shields. I have stated what it provides. First, no ballot shall be passed
out by the inspector without initials upon it, no inspector shall put the ballot in
the box without the initial, and no bauot in the box without the initials shall be
counted.
Mr. Frear. Were those ballots handled by the canvassers?
Mr. Shields. Thev were not.
20 CLAUDE S. CARNEY VS. JOHN M. C. SMITH.
Mr. Frear. WTio was it that saw those ballots?
Mr. Shields. The board of election.
Mr. Frear. I mean subsequent to the time when the attention was called to it?
Mr. Shields. I do not know how that information came out. No one should see
it except the board.
Mr. Frear. They were destroyed?
Mr. Shields. In April.
Mr. Frear. \V'ho was it that saw them before they were destroyed?
Mr. Carney. This is the way it came out, as I understand it: This contest was
eoing on over there and every conceivable election question was in the air, and these
fellows in a general kind of a way got to talking over this question. It seems to me
there was some little argument about it at the time they conducted the election.
Then when they met in the spring to burn the ballots they talked it over then and
it leaked out at that time.
Mr. Frear. Neither of the parties to this proceeding had a chance to inspect tiiose
ballots?
Mr. Carney. They had no chance.
Mr. Frear. So the only information you had would be where the parties would
all^e their own failure to put initials on?
Mr. Carney. Yes, sir.
Mr. Frear. And the failure to put initials on is what disqualified?
Mr. Carney. That is correct.
Mr. Frear. Notwithstanding there was no question that they were handed out and
voted and counted properly?
Mr. Carney. This has bearing upon that question; this was a Republican precinct.
They were all summoned to appear before the commissioner taking their testimony
and all of them disclosed just what was done.
The Chairman. Did they all testify that these ballots did not have the initials
upon them?
The Carney. Three of them.
Mr. Frear. What did they give as the reason?
Mr. Carney. Ignorance.
The Chairman. Did they testify that after discovering this defect that they did
not put the initials of one of the inspectors upon the ballots as they were handed to
the voters?
Mr. C'ARNEY. They did not discover it. It was their ignorance of the law, as I
recall the testimony until during the taking of the testimony in this case. I do not
know whether some of them looked it up or not.
Mr. Shields. The record shows the initials on the perforated part.
Mr. ('arney. They put the initials on the perforated part?
Mr. Shields. On the part to be torn off.
Mr. Frear. They got it in the wrong place?
Mr. Shields. Got it in the wrong place, and it was torn off before the ballot went in
the box. The law provides it must be on the ballot. This comer upon which the
initials were is torn off and does not go into the box; that is merely for the purpose of
identifying the ballot up to the time it goes in the box . The number is on that comer—
as the ballot is haudea the number is written down and the name; then the voter
takes it through and comes back and announces his name and number. The tally
clerk looks to see if that number of ballot was given to that particular man. If so,
then the inspector tears that off and throws that on the floor and deposits the ballot.
So the ballot has no distinguishing mark, but it should be identified oy the inspector
by having the initials still on the ballot.
Mr. French. Is it not true that the law has been changed repeatedly touching the
place where the initialing shall be?
Mr. Shields. In order to become more specific, certain, and definite.
Mr. French. And is it not true that this particular official who initialed these
series of ballots on the wrong side of the perforated line did so in good faith and that
all the officials at that particular voting place supposed that he was initialing accord-
ing to the latest law?
Mr. Shields. You might draw that inference from the record. There is nothing
to the contrary in the record. I am his attorney and may be politically biased.
Mr. French. I want to raise this question and be fair; you do not challenge that.
I understand it is very generally admitted that while it was contrary to the express
provision of the statute, yet that this particular official thought he was making the
initial according to law, and it was a procedure that was agreed in and concurred in
by all officials.
CLAUDE S. GABNEY VS. JOHN M. C. SMITH. 21
Mr. Shields. I do not claim the record shows an>'thing to the contrary. I do not
want you to get mixed on ray position. I doubt personally the possibility of so many
of these things happening without there being some motive other than real good faith.
The Chairman. Has the supreme court passed upon that?
Mr. Shields. Exactly.
Mr. French. In this particular case would it not be very apparent in a precinct
that is so overwhelmingly Republican that there could have been no deliberate pur-
pose on the part of those supporting Mr. Smith to have done something that would
nave made an invalid election in a precinct overwhelmingly for him nearly two to one?
Mr. Shields. Votes were getting mighty valuable last fall, and so far as your attitude
is concerned they would be just as apt, knowing where the majority is overwhelmingly
one way as the other. If you have had any experience with elections in the upper
peninsula and find it takes from one day to two weeks to find out anything has nap-
pened, and then they always presented enough to make it right, you would lose
faith in the good faith of big majorities. I am talking from what I know about those
things. Pardon me, Mr. Chairman.
The supreme court has spoken with absolute frankness and finality, and held that
the whole precinct should be thrown out, and the case is quoted in full, page 16 of
the bfief (reople ex rel. Anderson v. Rinehart, 161 Mich., 585). If the gentlemen
wish, you can read it, or if it would make it any more clear I will do so.
The Chairman. As you claim, the whole precinct should be excluded?
Mr. Shields. In this whole proceeding it seems to me we are entitled to come down
here and accept and accede to the solemn declarations of a Republican Supreme
Court of Michigan.
Mr. Frbar. Why do you say "Republican supreme court"?
Mr. Shields. Because, if you please, it is worth while. We are here as Democrats.
I am here, if you please, in my political belief. I understand very plainly and very
frank I am going to be. We want the Republican members of this committoe and we
want the Democratic members of this committoe to see this contest as we in Michi^n
see it, and as part of seeing it and as part of adopting the mental attitude with which
you investigate this question, it seems to me it is worth while to know how those of a
different political faith in our State have interpreted the same kind of action.
Mr. Frear. Did you ever hear the Supreme Court of the United States or any other
court classed as " Republican " or ** Democratic "? I am asking you why you do it?
Mr. Shields. Because it is the fact.
Mr. Frear. I am not sure of that; neither are you. Men change their politics in a
very short time occasionally. It is an objectionable term.
Mr. Shields. If it is objectionable, I take it back. I do not want you gentlemen to
feel that our supreme court is partisan. Back in Michigan nobody would insinuate
that; but it is the situation.
Mr. Frear. We accept the fact that these men were elected Republican unani-
mously.
Mr. Shields. Yes, sir. At the present time, with the exception of Judge McGrath
and Judge Morris on the bench, and I think it is pertinent to speak of their politics,
not necessarily in making decisions, but men are necessarily biased to a certain degree
by their personal views, and in one of the cases I shall call attention to, the only
Democrat on the bench took one view and all of the Republicans took the other.
Mr. Frear. He may have been right.
Mr. Shields. I think he was, but he did not make it the law of the State of Michigan.
Do not understand me as trying to bias your minds, but we can not understand
how men decide questions or how they view quebtions unless we know their personal
views.
Mr. Frear. You suggested that several times.
Mr. Shields. If I have, I will try not to do it any more.
Mr. Carney. If you will excuse me.
Mr. Shields. Yes, sir.
Mr. Carney. This particular statute is a little different from any other Michigan
statute. Most of the other mandatory statutes say that this shall or shall not be done.
Mr. Frear. As to the initialling?
Mr. Carney. No; most of the other statutes Mr. Shields has referred to, for instance:
A person depositing ballots who is not a member of the board, and so on. But this
particular statute goes ahead and says it shall not 1^, and expressly states that such a
ballot shall be void and not counted; that this is not only a holding of the supreme
court, but by the statute itself made absolutely void.
Mr. Shields. I want to read to you a part of this decision, because it reaches to not
only the meat of this particular case in this precinct, but some of the others — ^for
instance, Sunfield [reading]:
22 CLAUDE S. GABKEY VS. JOHN M. G. SMITH.
' 'It is urged that voters should not be disfranchised by the carelessness or fraud of
inspectors, and we are cited to many cases where courts have refused to exclude votes
for election irregularities. Courts are always reluctant to deprive electors of their
votes, or to do violence to the expressed will of the public, but these regulations are
made in furtherance of a design to protect electors in the exercise of their electoral
privileges. In the case of McQuade, supra, it was said by Mr. Justice Grant:
' * * These provisions of the law must be held mandatory, or else the purpose of the
law is defeated, and the opportunities for fraud are increased rather than diminished.
If an inspector or other person be permitted to enter the booths with the voters, flie
danger is far greater than under the old system, where there was some opportunity to
see and detect fraud. Under this practice venal voting could be readily accom-
plished. The law is designed to secure absolute secrecy to the elector, and thus
prevent all opportunity for corrupt practices. The law does not permit parties to
profit by such frauds, though iJiey may not have participated in the fraud. The rule
laid down by Uie text writers is as follows: ' 'When fraud on the part of the officers of
election is established, the poll will not be rejected, unless it shall prove to be impos-
sible to purge it of the fraud. \Mien tiie result of a poll, as shown by the returns, is
false ana fraudulent, and it is impossible to ascertain the actual vote from the other
evidence in the case, the vote of such poll must be wholly rejected." (Paine on
Elections, sec. 499; McCrary on Elections, sec. 190, 192.)
' **This rule is founded in ^ood sense and is sustained by the authorities.*
' 'We said in the case of StiUson, supra:
' '*We have frequently held that electors are not to be deprived of the result of their
votes by the mere mistakes of election officers, when such mistakes do not indicate
that the result has been changed thereby, and many things may occur that can be
treated as irregularities. (See People v. Avery, 102 Mich., 572; 61 N. W., 4; and
authorities cited.) On the other hand, where fraud appears upon the part of the
inspectors the voter must sometimes be deprived of his vote. (Attorney General v,
McQuade, 94 Mich., 439; 53 N. W., 944.) And this must always be the case where
mandatory provisions are disregarded, if the result would be thereby changed. *
* 'Continuing upon the subject of the constitutionality of the law, which is attacked
in this case as it was there, we said much in the last-mentioned case that can as well
be read there as to repeat it here. We held these laws within the powers expiessly
conferred by the constitution, although they might require some sacrifice ty the
individual for the public good. The statute expressly provides that such ballots as
these shall be neither placed in the box nor counted, and we have no alternative but
to apply the law.
* 'Tne judgment of the circuit court is reversed and a judgment of ouster entered
against the respondent and in favor of the relator.
"Ostrander, Moore, McAlvay, and Brooke, Jj., concur."
Mr. Frear. Was there any fraud alleged in that case?
Mr. Shields. There was none whatever.
Mr. Carney. The same facts existed there as here; they initialed the ballots.
Mr. Shields. The entire case is quoted.
Next is Battle Creek, page 18 of the brief. We have sufficiently discussed how the
reports come to the county clerk, so that we understand those, I think; that at the end
of an election the ballots and the tally sheet are put in the box that stays in the com-
munity. Then the inspectors of election make out two certificates of the result of the
election. One of those is sent to the probate judge or the probate register; the other
is sent to the county clerk, together with the tally sheet.
Mr. Borchers. They are sent in separate envelopes, though; not sent together?
Mr. Shields. Sent to the county clerk?
Mr. Borchers. Yes, sir.
Mr. Shields. That is the way I understand it. When those returns got in there
they showed Smith had received 31 votes and Mr. Carney ^3 votes. The county
canvassing board, somebody knowing the local conditions, thought that was not as
manv votes as there were out there, so they took steps to correct them, and I think sent
for the township board, did they not, Mr. Carney?
Mr. Carney. Correct.
Mr. Shields. And had them before them. WTien the county canvassing board
first opened the ballot box brought there by the town'^hip board for the purpose of
discovering the error, they found in it the rolls of ballots and a certificate and the
tally sheet.
Mr. Carney. No, let me state that condition. They found nothing but the ballots
at that time. They took the rolls of the ballots out. There were some figures on the
back of some of the ballots, and they made a record of those figures. That is all that
was done at that time. They discovered the statute prohibited permitting any-
CLAUDE S. OABNBY VS. JOHN M. C. SMITH. 23
thing except portions of the returns or papers bearing upon the returns, and they
came to the conclusion they could not use those figures they had obtained.
Mr. Frear. The first package contained only ballots?
Mr. (\\RNEY. That is all; so far as proof shows.
Mr. Frear. And those ballots should liavo been retained, should they not, in the
precinct?
Mr. Carney. Yes, sir.
Mr. Shields. They were in the box.
Mr. Frear. These were sent in by mistake?
Mr. Carney. No; let me tell you how this came about. They discovered or thought
there were more votes than the reports showed on their face.
Mr. Frear. They had receivea their returns first?
Mr. Carney. Yes; they had opened them, and received them. Then they sent
for this board to bring the box over there. Nobody had anything to do with them, as
I understand, excepting the authorities there, the county board. Thev then started
to make a return of their own, and to correct the returns of the inspectors before making
their canvass, and thev wrote in red ink
Mr. Frear. After they had received the box?
Mr. ('arney. After they had received the box, what they had found on the back
of these ballots in the box. As a matter of fact, I contend — contended then and
contend now — that under the Michigan decisions this is the only forum by which
any correction could be made.
The Chairman. Mr. Carney, do not the laws of Michigan .provide that any candi-
date feeling aggrieved at the result can file petition and have a recount?
Mr. Carney. Yes; but our supreme court has said that does not give the candidate
for Congress that right; absolutely settled that question.
Mr. loiEAR. Have you that decision here?
Mr. Carney. I can get it for you.
Mr. Shields. Some question came up in the Mac Donald case.
Mr. Carney. In the Belknap-Richardson case.
Mr. Frear. Then they made their report.
The Chairuan. Let Mr. Carney state what occurred.
Mr. Carney. They made this correction on their books. As a matter of fact I went
over there in person. I had Climax and some of these others in the same condi-
tion. I contended that I was not entitled to a recount; there is no question about
that in Michigan. Our courts sustain us on that, because they have already passed
upon it. The statute provided they had a right to call the board in for the purpose of
examining the papers m the box, but that they should not remove the ballots. They
finsAly discovered they had gone beyond anything they had a right to do. The prose-
cuting attorney was there with me, and we discussed the matter, and I went away.
Sometime after that — the next da}r, I think — Mr. Smith, Mr. Davis, and Mr. Hoa^,
and three or four others, his campaign managers and attomevs, appeared, and at their
request this box was brought before the hoiid again. At this time they did not re-
move the ballots, but they removed a paper, which purported to be a complete tally,
unsigned by anyone.
Mr. Frear. That had not been forwarded?
Mr. Carney. That had not been forwarded ; this was not a tally sheet. There was
no tally sheet in this box, as the statute provides.
Mr. Shields. This paper was not in there when the box was first opened at the
previous meeting.
Mr. Carney. This paper had no signatures upon it, was no part of the returns in
any way. They used tnis to correct their returns a second time, and the second cor-
rection is the correction that they used in making their canvass. This paper no one
claims to have seen in the box at the time the ballots were taken out in tne first place.
You see, this was the second precinct.
Mr. Frear. Upon what theory did they use it?
Mr. Carney. They used it upon the theory that the statute expressly prohibited
taking out the ballots at all.
Mr. Frear. What did they assume that to be?
Mr. Carney. They assumed that to be the correct return. Mr. Christian testified —
a member of the board — that this was a little data that he made during the taking of
the canvass. The evidence shows, as a matter of fact, tJie paper he claimed to have
made was a piece of paper, I think, 3 or 4 feet, something like tliat. This piece of
paper was a small piece of paper, an ordinary sheet of tablet, as I recall — ^just a little
piece of blotting paper. The evidence also shows that at the hearing this box had
Doen so tampered with, somehow, somewhere, that this paper could have easily have
been put into the box, or any other paper could have been put into the box, and it
24 CLAUDE S. CABNEY VS. JOHN M. C. SMITH.
wafi in such a shape that under our statutes it cxmld not be counted. That is Bubstan-
tially the record on this proposition.
Mr. Shields. Kepublican county clerk, Hart, testified that the edge of the box —
what they call the ridge '' edge, seemed to have been bruised or jammed and so loose
it could be raised half an inch, and the paper from which this record was made could
have been int*erted. Xo one found it there the first time.
Mr. Stephens. There was a difference of opinion between the witnesses as to whether
or not that could have been done.
Mr. Shields. Was tliere a difference of opinion?
Mr. Carney. Mr. Hart was the only witness on that; he first testified one way and
at another time differently.
Mr. French. After all, going into the results of the modification of this board of
canvassers of the returns as it came from the precinct, was not that modification
made on account of what they understood to be a discrimination in the returns from
that precinct as they ought to have done through the failure of the precinct inspector
to count certain votes for both Mr. (barney and Mr. Smith? The same failure having
occurred with reference to all candidates on the State ticket, that where the ticket
was voted straight and through some apprehension, whether rightfull^r or wrongfully
assumed, that tnev had no right to count those votes, as I understand it. Is not that
the precinct in which the returns from the precinct by the election officials showed
that both contestant and contestee had received a far less number of votes than it was
reasonable to have supposed they should have received?
Mr. Carney. Yes. ,
Mr. French. And that then the only effect of the correction of the vote by the board
of county canvassers was to add to each side the votes that were cast for both contestant
and contestee as straight votes?
Mr. Shields. No.
Mr. Carney. No.
Mr. Shields. They added what they got from that paper, and that paper was not
in the box, nor was any the first lime, and where it came from or whether correctly
prepared.
Mr. French. You a.skod that the entire precinct be thrown out?
Mr. Carney. Oh, no.
Mr. French. Or the difference between the original returns and these returns?
Mr. (*arney. That is all. We claim that that original return stands until this com-
mittee finds out the facts. You can not get the facts from such conduct as that went
through down there.
Mr. French, l^et usgoa little beyond that, then. Do you believe, assuming we will
be able to get these factn, that those votes could be counted for contestant and con-
testee that were voted on a straight ballot?
The Chairman. As there i.s a call for a vote of the House we will have to int^-rrupt
the hearing now and adjourn until to-morrow at 10 o'clock a. m.
(Whereupon, at 12.15 o'clock p. m., the committee stood adjourned until to-morrow,
Saturday, December 6, 1913, at 10 o'clock a. m.)
Committee on Elections No. 1,
House of Representatives,
Saturday, Decembrr 6, 1914.
The coratnittei? met at 10. 10 o'clock a. m., Hon. James D. Post (chairman), presiding.
Present: Messrs. Stephens, McClellan, Borchers, Elder, French, and Frear, members
of the committee; lion. J. M. C. Smith, Mr. Claude S. Carney, and Mr. Edmund C.
Shields.
The Chairman. Mr. Shields, you may proceed.
STATEMENT OF EDHUND C. SHIELDS, ATTOBNEY FOB
CONTESTANT.
Mr. Shields. Mr. Chairman and gentlemen, 1 am not going to take up a great deal
of time; not as much as yesterday, 1 hope, bcfause we pretty well covered the ground
yesterday. I believe that when we stopped we were still discussing the ward in
Battle Creek, and the condition of affairs there that grew up after the election, covering
the change that was made in the returns. We are not quarreling with the original
returns as made. Our criji<iMm of tliat ward is based upon the fact that afterwards the
box of returns was called in from the precinct and brought before the board of county
CLAUDE 8. CARNEY VS. JOHN M. C. SMITH. 25
canvaseers, and, as you will recall, the first time there was a meeting no paper was
discovered in it except some ballots, and some figures on the outside ofone of the roll
of ballots which were taken into consideration to some extent.
Later on, and in the absence of Mr. Carney or any representative of his, and at the
request of Mr. Smith, the box was a^in opened in the presence of the board. This
time there was discovered in the box a paper about 8 or 10 inches square, purporting
to be a tabulation of the returns from tnat precinct, and from that paper tne change
was made. One of the significant features of the situation in that district was that the
board changed the returns at the request of Mr. Smith, whereas over in Eaton County,,
when Mr. Carney was seeking information and investigation to which he was entitled
under the law, the board over there absolutely refused to pay any attention to him.
I want to read a short extract from the record, showing tne condition of the ballot
box in this questioned ward of Battle Creek at the time this paper was found in there,
which was after the first meeting of the board when nobody nad discovered such a
paper in it. I read from the middle of page 451 :
Q. Are you able to say it is in the same condition now it was when you first saw
it? — A. The general condition; do you mean as to being jammed?
'*Q. Yes; as to being jammed, and so on. — A. I don t know anything about it;
candidly, I don't know.
"Q. What is the appearance of this jam in the top, whether done with blows or
how; what is the appearance of it? — A. The entire lid is crushed down; that one edge
which was ridged is nent down; I should say it was by means of blows, if my opinion
is worth anjrthing; it could be done in various ways, probably.
"Q. With the box in the condition it is now in, would you say the lid could be
raised without disturbing the seal in front? — A. That lid could be raised about one-
half an inch, taking out the slack.
**Q. I mean raised up so you could get inside the Ik)x? — A. No, sir; not without
disturbing the seal.
"Q. How is the lid fastened down? — A. There is a staple from which there is a loop,
a steel loop or hasp, and through this padlock and from that padlock a leather strip
tied with a string to the box and sealed.
"Q. I will ask you if in your opinion it would be possible to open that box and
empty the rolls of ballots you saw in the box without destroying the seal in front? —
A. No, sir; that would not be possible.
**Recross-examination by Mr. Adams:
"Q. These figures that you state one of the inspectors used the second time when
the ballot box was before the board of county canvassers were the figures that were on
the sheet of paper? — A . Yes, sir.
"Q. A single sheet of paper? — A. Yes, sir; a single sheet.
''Q. Such a sheet of paper as that was on which those figures were, which sheet of
paper and the figures on it were used in making some changes of these election re-
turns, could be put into the ballot box this minute without unlocking it or breaking
the seal, could it not? — A. 1 don't know; I think so; I think it could be. but it would
show some evidence of being put in, I think."
Mr. Carney calls my attention to the fact that this witnees Hart, from whose testi-
mony I have just read, was the county clerk and was cilled by the contestee. I read
from' the redirect examination by Mr. Maynard, Mr. Smith's attorney, and the recross-
examination by Mr. Adams, Mr. Carney's attorney. That shows the Condition of the
box and not only what they were willing to do but what they did do along the line of
strengthening the showing of results for Mr. Smith. Now, 1 think that covers the
specific precincts that have been taken up by us in our briefs.
There is another class of precincts which we have covered in our original brief
merely by grouping them as those precincts where voters were instructed and not
sworn before they were instnicted.
Mr. French. Do you challenge the returns that were originally given in that par-
ticular precinct?
Mr. SmBLDS. No, sir; we do not.
Mr. French. For instance, in the original returns Mr. Smith received 31 votes and
Mr. Carney received 23 votes.
2dr. Shields. Yes, sir; that is correct.
Mr. French. You do not challenge that at all?
Mr. Shields. No, sir.
Mr. French. You take the position that you simply do not know anything with re-
spect to the added votes; that the paper from which the records were taken should not
be the basis, at least, for the ofiScial records? Do I understand that that is your posi-
tion?
26 CLAUDE S. CAEKET Y8. JOHN M. G. SMITH.
Mr. Shields. Yes, sir; that the paper is not a paper required by law; that if it was
an honest memorandum it was there at the time when it should have been there, but
must have come in at some later time, and coming in tiiat way, without any author-
ity and without any authentication of any kind, it is not a proper basis upon which
any change can be made. I will go a step further. We do not question tne right of
this committee or the right of the House to get the true returns from the box.
Mr. French. Is the box preserved?
Mr. Shields. I do not know. I suppose so. Mr. Smith or Mr. Carney would know
more about that than I would.
Mr. Carney. I have seen nothing of that particular box.
Mr. French. But you do not raise any question affecting that which may be in the
box, assuming that the committee will be about to get it?
Mr. Carney. No, sir; but the last examination shows it has been tampered with.
Mr. French. Tampered with to such an extent that a package of ballots could have
been put in?
Mr. Carney. No, sir.
Mr. Shields. We do not say that.
Mr. Carney. An examination will disclose the fact that it would be impossible to
say one way or the other, without opening the box, from its peculiar condition, to what
extent it has been tampered with. The record will show you that it was not sealed,
as required by statute, at any time after the election. Of course there was a string
around it and a seal on the string, but the slot was not sealed at all. Do you under^
stand?
Mr. French. Yes, sir.
Mr. Carney. Our statute requires that a strip of canvas shall be put over the box,
but they did not do that in this instance, but merely put a string around it — I believe it
was a shoestring, was it not, Mr. Smith?
Mr. Smfth. I can tell you this — I do not think the record shows it: The janitor
opened the box up there at the city hall for another purpose, and some trunks fell on it,
and it was broken in.
The Chairman. Does the record show that?
Mr. Smith. No, sir.
Mr. Carney. That is the first I have heard of it.
Mr. Smith. It is known there and it is an actual fact, if you want to know it, and
the te.otimony can show it, that a box or chest fell down on the ballot box during the
time it was stored in the courthouse at Battle Creek, long after they made the second
count. I spoke to people very carefully about it, and I can sav that nobody was
responsible for the board coming there the first time. They honestly came and
made their calculations. The chairman of the board was the strongest uemocrat in
the count y and a partisan of the contestant. He signed the returns without anybody
being there at all, and the next day Mr. Carney went down there to explain tfie law
to him, saying that they had exceeded their authority, and they sent me word that they
would like to have me come over, so I went over to the chairman, accomumied by
Mr. Huggett, a gentleman who had formerly been associated with me. They had
Questioned the proceedings, and I said: "Send for the box again,then.*' So when
tne box came in again it was just exactly the same as it had been a few days before.
Mr. (^arney. How do vou know that?
Mr. Smith. The recorcf shows that. Now, I claim a different construction of the
election law from theirs
Mr. French. I think it would be better to take that up after they have finished
their side.
Mr. Smith. Very well.
Mr. Stephens. The law requires that one tally sheet be put in the box and one
sent to the judge of probate?
Mr. Shields. And one to the county clerk.
Mr. Stephens. It was claimed that there yrss no tallv sheet in this box.
Mr. Shields. The record sho^s that there was no tally sheet found there.
Mr. Stephens. Was a tally sheet sent to the county clerk? If so, what does the
record show as to the number of votes cast for the two candidates?
Mr. Carney. Every tally aheet sliows exactly the same figures as the original
returns, Smith 31 an<i Carney 23; every record shows that; they are just the same
all around, the one filed with the judge of the probate court and the one filed with
the county clerk.
Mr. French. Is there some record equally extensive which would show something
in regard to this bundle of ballots marked '' Straight" that were ignored?
Mr. Carney. No, sir.
CLAUDE S. CARNEY VS. JOHN M. C. SMITH. 27
Mr. Stephens. From whose testimony do we get that?
Mr. Carney. Mr. Schneider's testimony shows all that.
Mr. Stephens. He was a witness for yourself?
Mr. Carney. Well, it may have been the testimony of the county clerk or deputy
county clerk, I am not sure which, but I think it was Schneider's testimony.
Mr. Stephens. Well, never mind ; I do not want to take up the time to find it now.
The Chairman. Now, the original tally shows that Mr. Smith received 31 votes
and Mr. Carney received 23 votes. Then the county clerk, Mr. Hart, changed that
by adding 66 votes to Mr. Smith's tally, giving Mr.' Smith 97 votes, and adding 38
votes to Mr. Carney's tally, giving him a total of 61 votes. After these additions were
made, how did those figures tally with the vote for other candidates who were voted
on at the same time?
Mr. Carney. You do not seem to understand. The other candidates were in the
same condition all the way through. It ran about tiie same all the way through,
showing 54 or 55 votes cast for everybody. There was practically no difference.
The Chairman. What did the poll book show as to the number of votes cast in
that precinct?
Mr. Smith. The testimony shows that there were 374.
Mr. Stephens. Not in that precinct, surely, because the list of returns does not
indicate it.
Mr. Smfth. You will find it on page 443 of the record. You asked for the whole
number of votes cast in the precinct, Mr. Chairman?
The Chairman. Yes.
Mr. Smith. For all the candidates?
The Chairman. Yes.
Mr. SMrrn. The record shows there were 374.
Mr. Elder. Were there more than two candidates?
Mr. Shields. Oh, yes; there were other candidates there.
Mr. Stephens. I find on page 135 in the course of the testimony of Mr. Schneider
the following answer:
"A. Well, when we received the box from the county clerk, he advised us that the
number of votes returned were less than the number cast at the election."
Mr. SMrrn. Yes. _
Mr. Stephens (continuing):
"And after looking the report of the election board over and comparing it with the
poll list, we also knew that tiiere must have been more votes cast than was returned."
Mr. Smith. That is right.
Mr. Elder. Did they coimt those votes again?
Mr. Carney. No, sir; they did not coimt anything. That was the real objection
to the proceeding.
Mr. Stephens. Did they just arbitrarily add so many votes to your list and so
many votes to Mr. Smith's list?
Mr. Carney. Yes, sir.
Mr. French. As I understand it, they added them to this memorandum which you
challenge?
Mr. Carney. Yes, sir.
Mr. French. That is the fact, Mr. Stephens.
Mr. Stephens. All right.
Mr. Carney. I contended that they should have waited until there was a hearing
of this contest. There is no provision in our State for a recount of votes cast in a
congressional election. Our supreme court has settled that question clearly. I took
the position then that I was bound to wait until the matter came before Congress when
all parties could be heard, but they would not wait.
Mr. Elder. Then these votes were counted when — the next day?
Mr. Carney. They never were counted aeain.
Mr. Elder. Was this memorandum signea by the election officers?
Mr. Carney. It was signed by nobody, and it was not in the box, so far as the testi-
mony shows, the next day — or rather, the next week — after election when they opened
the box; they simply took some figures from the backs of the balloti> which they found
there and which was absolutely prohibited by law. Afterwards they found this piece
oif paper in there, and that is the suspicious thing about it. After this thing was
thrashed out and there was no tally book there and they could not supply it, then they
found this piece of paper.
Mr. Stephens. It seems from the testimony of Mr. Schneider that they put the
Democratic votes together, rolled them up?
Mr. Carney. Yes, sir.
Mr. Stephens. And then marked them ** Straight D."?
28 CLAUDE 8. CABKEY VS. JOHN M. C. SHITH.
Mr. Carney. Yes, sir.
Mr. Stephens. Which meant '^straight Democratic ticket"?
Mr. Carney. Yes, sir.
Mr. Stephens. And then they marked the others ''Straight R." for *' Straight
Republican" and "Straight N. P." for "Straight National Progreesive"?
Mr. Carney. Y'es, sir.
Mr. Stephens. And there was one bulletin endorsed: "Total split votes"?
Mr. Carney. Yes, sir.
Mr. Stephens. So that it would appear from this record that the election oflScials
later added the straight Republican vote to the split vote, giving Mr. Smith 97 votes?
Mr. Carney. Yes, sir. Of course, those were more or less minutes or rough memo-
randa on the back of the ballots.
Mr. Stephens. Are those ballots here?
Mr. Carney. I do not know where they are. Ask Mr. Smith.
The Chairman. Wliy did you not attach them to your depositions?
Mr. Smith. They would not open the box; they objected to it.
Mr. Carney. We objected to the condition the box was in.
The Chairman. You could have attached the box, ballots, and all, and brought
them here.
Mr. Smith. They would not allow us to open the box. At every point we were
strenuously opposed. At every step, when we undertook to have the matter fully
explained, we were met with vigorous opposition. The record discloses that. I
brought in every man in every precinct who could throw light on the case, and they
told everything they did.
Mr. Shields. Mr. French, did you want to ask a question?
Mr. French. The question I was about to ask has been answered in the course of
the several questions preceding, and I do not care to pursue that line any further.
Mr. Shields. To be perfectly fair and square about that situation it came about in
this way: There were some marks on the backs of some rolled ballots. It was then
discovered that they had no right under the law to take anv ballots from the box;
they could not open the ballots; they could not refer to the baflots in anyway. There
was' no other paper there at that time seen by anybody. Hie second time they went
there a paper which the law permitted them to take out was found in the box. Now,
when it got there and how it got there the record is absolutely silent. It does not
show when it was put in there or who put it in there.
Mr. Smith. Yes, it does. It shows tnat the man who nuide it swore that he put it
in there that night.
Mr. Carney. And he said it was 3 by 4 feet in size.
Mr. Shields. That was to show that there was some foundation for the change, but
that is not the paper that he described as having made when he was on the election
board; that did not agree with the other paper.
Mr. Smith. There were two different papers.
The C^HAiRMAN. Well, coining back to tne point, you do not claim that the result
which was finally canvassed is materially different from what it should be?
Mr. Smith. No, sir; I do not claim that because I can Lot find out by any legal
method what the vote was. I do not want to be put in the position of claiming some-
thing for which I have no foundation, because I have no 1^1 way of finding out what
the exact vote was at that time. I do not want to be ridiculous; that is all.
Mr. P^RENCH. I want to ask you if the county clerk or the canvassing board made
the same change with respect to the other candidates where they observed that the
votes which had been covst on straight tickets had not been counted. Did they make
the same change with respect t > th )se totals?
Mr. Carney. Yes. sir; they did, and the reason for tliat was that Mr. Smith asked
them to make the change in his votes.
Mr. Smith. I never asked them to make a change, and the record shows it. I
spent $980 for tlie expense of taking a voluminous record of testimony in that fraud
case. I brought in every man I could get hold of to testify; I had the whole election
board there and they never put a single witness on the stand to contradict a word
of testimony offered in my behalf.
Mr. French. Then, ri^ht in that same connection
Mr. Carney (interposing). Mr. Smitli has probably forgotten the facts or he would
not make the statement that he now makes.
Mr. French. I want to ask you or Mr. Shields how the total vote for Congressman
compares with the total vote received by tlie other candidates, both on the Democratic
and on tlie Republican tickets?
Mr. Carney. They made exactlv the same addition to every one.
Mr. French. Tliey made an ad<fition to every straight ticket?
GIAUDB S. GABNEY VS. JOHN M. C. SMITH. 29
Mr. Carney. Yes, sir; but everybody understood at that time that they made
absolutely no change except in this office.
Mr. French. Was there any recount had on the other offices?
Mr. Carney. No, sir.
Mr. French. The State has not made any recount?
Mr. Carney. No, sir; this was the bone of contention all the time.
Mr. Shields. Under the law of Michigan, in the condition in which that ballot box
was, you could not have a recount, no matter what was done or what happened. A
box that has been tampered with must be thrown out.
The Chairman. Mr. Shields, from the fact that the same mistake was made as to
all the candidates, presidential electors. State and county officers and all alike,
Democrats, Republicans, and Socialists, is it not apparent to you that it was a mere
oversight on the part of the election officials?
Mr. Shields. It might have been and it might not.
The Chairman. Is it not apparent to you
Mr. Shields (interposing). 1 do not know anything about it. I am not going to say
whether it is or not, but it seems to me that nobody is warranted in taking a lump
number of votes and adding tliem to everybody equally without any legal foundation
or justification for doing it.
The Chairman. The point I am making is this: You do not accuse the electior-
officials of fraud, do you? It could only be a mere overpight?
Mr. Carney. Oh. yes, sir; that is correct. In this count, you mean?
The Chairman. Yes, sir.
Mr. Carney. No, sir; certainly not.
Mr. Shields. Not at all.
Mr. Carney. It is the conduct in raising the vote that is irregular.
Mr. Shields. Now, I will take up the other division of the case. In the contestee*s
brief there are a large number of precincts in which the contest^e claims that the votes
were illegal because one or both of two conditions existed : First, that certain voters
were assisted in voting and had their ballots marked without the voter being sworn,
and second, because women watchers or challengers were behind the railing. As to
the first proposition, the law of Michigan provides that if a person is blind or other-
wise unaole to mark his ballot, unless the defect is apparent to the board the voter
must be sworn as to his incapacity before he is allowed assistance. They claim that
those two conditions invalidate the returns from a large number of precincts and they
should be thrown out entirely. I want to discuss for just a moment the question of
the women watchers being behind the railing. That is covered in our reply brief by
a specific law of 1912, pas^ by the State legislature. Our State at that time was in
the throes of a woman's suffrage movement, and at this same election the question of
woman suffrage was being voted on. For the purpose of protecting the rights of the
woman suffragists and giving them an opportunity of seeing, heanng, and knowing
what was being done, the legislature {>assed a special act giving the women the right
to have two watchers inside the rail.
The Chairman. Do thev contend that there were more women allowed within the
railing than were allowed by law?
Mr. Shields. Well, I do not think that proposition is contended for so much as
the proposition that they did not have the proper credentials.
Mr. Carney. I do not know whether they rely upon this or not, but under the old
statute nobody but representatives of a political party had a right to challenge, and
when the women first laid claim to the right nobody seemed to know about the new
statute, which gives the right of challenge to any order of citizens interested in the
question to be voted upon, whether they are members of a particular party or not.
Mr. Shields. I think none of them were aware of the act passed at the special ses-
sion enlamng the right of different bodies or parties at interest to have special watchers
at the polls.
The other question calls into consideration the construction by the Michigan Supreme
Court of the laws governing elections in that State, particularly that section of the law
in regard to assisting voters who are blind or otherwise incapacitated from voting
unassisted. Now, there is really no difference between us on the law. There are a
large number of precincts which they ask to have thrown out, as against the con-
testant, in their brief. They begin on page 32, there being several to a page, and run
throu^ a number of pages in their bnef. We contend the rule to be that if those
individual ballots are illegal they should be counted out and cast off.
The Chairman. Your contention, if I understand you correctly, is not any differ-
ent in that respect from where you make the same point against them?
Mr. Shields. No, sir; we do not make the same point exactly.
Mr. Carney. Yes; we do.
30 CLAUDE S. CABNEY VS. JOHN M. G. SMITH.
Mr. Shields. You mean the same as we do in the other precincts?
The Chairman. Yes, sir.
Mr. Shields. No* there is a different rule there.
The Chairuan. Do you contend that where they did not swear a voter as to his
incapacity it was a fraud which you could not segregate from the whole vote?
Mr. Shields. We did not raise the question of swearing a voter
Mr. Carney. Mr. Shields, may I interrupt you right there?
Mr. Shields. Yes, sir.
Mr. Carney. I think there were four or five precincts where this identical question
came up on our side of the case where there was no claim of fraud, the only conten-
tion being that certain voters were not sworn, and we took the same position that is
taken in the brief here. Those votes have not been tabulated on our side of the case
because they did not amount to very many.
The Chairman. Your contention, Mr. Carney, is that it vitiates the whole number
of votes?
Mr. Carney. Mr. Shields is about to cover that point, sir.
The Chairman. Go ahead. Mr. Shields.
Mr. Shields. I do not know just what your inquiry was directed to, Mr. Chairman,
but we know this same condition existed as to but a few voters being sworn. How-
ever, we have not raised that question nor have we used it as an argument to sub-
stantiate the claim that the w^hole precinct should be thrown out. 1%at question is
not raised in our brief. In other words, while there were one or two instances in some
of those precincts where voters were assisted without being sworn as to their incapacity,
there were other questions reaching to the fundamentals of the proposition upon which
we rest our case, therefore we made no point about that.
Mr. Elder. Do you charge in your petition that that would invalidat4* the election?
Mr. Shields. I think not.
Mr. Carney. No, sir.
Mr. Elder. I should think that if you charged that against them and adm^itted it
on your own side they could come back at you and put you in a hole as to the legality
of the other ballots.
Mr. Shields. Not at all. I have had some experience in drawing up petitions,
and I know that if you state certain facts and draw certain conclusions therefrom you
may not have analyzed the facts sufficiently nor drawn a legal conclusion, but cer-
tainly no lawyer would say that a petitioner or litigant is bound by a statement of facts
whicn is correct but from which ne drew an improper legal conclusion. A law ia a
law and can be applied to any true state of facts. Now. there are a large niunber of
districts in whicn the contestee claims that the entire vote should be thrown out
because some few of the voters in those precincts were assisted without being awom.
We say that that is not the rule. That is set forth in their brief.
Mr. Frear. At what page?
Mr. Shields. At page 16, brief for contestee. Our contention is that the rule, as
settled by the courts of Michigan, is that if a ballot is vitiated it can not be counted;
in other words, if it is known for whom a vitiated ballot is cast, that individual ballot
should be deducted from the tally of that candidate. On the other hand, if it is not
known for whom that vitiated ballot was cast, then that ballot and all ballots of that
nature must be deducted proportionately from all the candidates. That is the spe-
cific rule laid down in Micnigan, and the counsel for contestee does not disagree with
us. On page 16 of their brief they refer to a case in 99 Michigan which we have thor-
oughlv covered in our brief [reading]:
The case of Attorney General v. May (99 Mich., 538) holds no more than that it
is unlawful for an inspector of an election to assist in marking a ballot for any elector
who claims to be unable to read English imtil such elector shall have first made oath
to the fact; it further holds that this requirement is mandatory, and votes in violation
thereof should not be counted. In our opinion there is no necessity in dwelling upon
the law laid down in this case. It simply addresses its reasoning and argument to
the proposition that where votes are ill^Uy cast they should not be counted and
should oe withdrawn from the count if it can be ascertained how many were thus
ill^y cast."
Now, in their application of that rule to a number of precincts they say that there
were a number of votes ill^aUy cast, and therefore the whole precinct should be
thrown out and voided. We liave analyzed the record and ta&en the maximum
number of those votes from everyprecinct in the record
The Chairman (interposing), what is the maximum number?
Mr. Shields. Forty-two. We have gone through the record and analyzed it and
taken from the testimonv the maximum number testified to by any wilaiees on their
side in any precinct in the district, and we say and agree with them that they should
CLAUDE S. CABKBY VS. JOHN M. C. SMITH. 31
be withdrawn. In a moment I will ahow you the law of Mick^an on that proposi-
tion. We do not say that they should be withdrawn and taken out proportionately
from the votes of each candidate. We do not ask that here. We ask this, that they
be cast out and deducted from Mr. Carney's vote. We say take them all from
Carney. If the law of Michigan says you shall take the entire 42, the maximum num-
ber shown by this record in any district, then we say take them entirely from Carney.
Mr. French. What do you mean by taking them proportionately?
Mr. Shields. The Supreme Court of Michigan has so ruled.
The Chairman. You mean you can take half from Carney and half from Smith?
Mr. Shields. Yes, sir.
Mr. French. As a matter of fact, it would not affect the vote at all. would it?
Mr. Shields. No, sir. If it was just one precinct, the proportion would remain the
same; but the proportion differing in the other precincts mig|it make a change in
the result from the aistrict as a whole, though it would not make a big difference.
I understand the rule to be that if there were nine votes of that kind in the pre-
cinct, and if the Republican candidate received three-fourths of the vote and the
Democrat one-fourth of the vote in that precinct, three-fourths of the nine would
be taken from the Republican and one-fourth from the Democrat.
Mr. Elder. Yes; if you could divide it that way.
Mr. Shields. The method of arriving at that determination is a mathematical
calculation based upon the theory of chance. If there are three-fourths of one kind
of ballots in a ballot box and one-fourth of another kind in the same box, and you
draw out nine ballots promiscuously after stirring them around, on the rule of < hance
you will draw three-fourths from the majority and one-fourth from the minority
ballots. It can not be mathematically accurate, but it is based on the probabilities
that the proportion will be maintained in the manner of drawing.
Mr. Stephens. What is the objection to these 42 ballots?
Mr. Shields. I will give you a concrete illustration: Supjwso a blind man on
election dav enters the polling place and, unable to mark his ballot. sayH. ^' I need
some help.'' Unless the defect is apparent to the board, he should first be com-
pelled to swear that he needs help. If he is granted assistance, one inspector goes
with him to the booth and marks his ballot for him. The object of that is to pre-
vent the identification of ballots.
Mr. French. As a matter of fact, it is left largely in the discretion of the board
as to whether a man is apparently in need of help?
Mr. Shields. I think there is quite a discretion there. The language of the statute
is Quite specific as to the necessity of his being sworn, but it contains a general clause.
I tnink you are reasonably correct; there is quite a discretion. Of course, blindness
is apparent, but supposing a man comes up and can not read English and is dumb,
that board can not tell what defect that man has; so they put him under oath as to
the necessity of assistance. It is difBciilt for the board to determine whether he shall
be sworn, whether the defect is so apparent that it does not need to have his oath to
convince them that they should help him. Is that clear?
Mr. French. Yes; but then the matter goes right back to the question of discre-
tion with officials of that kind. Would not the Congress be bound to respect their
judgment as to whether or not it was necessary tliat me man should be swom?
Mr. Carney. I can enlighten you as to the testimony on that point. In some
instances the boards testified that they did not notice anything wrong about the
man, but that he asked for assistance and they gave it to him, not being familiar with
the law. In other instances they said the man could not see.
Mr. French. But as a matter of fact there is a great deal of discretion?
Mr. Carney. Yes, sir.
The Chairman. And in order for you to have properly availed yourself of the point
should you not have shown by the record that the boards violated their discretion?
Mr. Carney. Absolutely.
Mr. Shields. The way we have handled it is to take the rule of Micliigan as the
court has laid it down and apply it in its most unfavorable aspect. We have no
objection to the committee considering that it was entirely a matter of discretion
with the boards. Of course, if the committee adopts Mr. French's position, then those
ballots would become immaterial, and the result in all precincts would be as taken
from the final returns, and no change would be made in the returns in that respect,
and we would accept tliat. But we say that if the committee finds from an examina-
tion of the election laws of Michigan that something should be done with this precinct,
that some change should be made, then the change to be made is to take those votes,
when the number is known, proportionately from each candidate, which, of course,
can not be done without dennite information. Now, rather than bother you with
that operation we say take tlie maximum number of votes that any witness has testi-
32 CLAUDE S. GABNEY VS. JOHN M. G. SBCITH.
fied, on either aide, were ill^ally cast, and take them all from Carney. So we cer-
tainly are fair on that proposition.
Mr. Smith. Much obliged for small favors.
Mr. Shields. I tliink we all understand that whatever we are entitled to we are
thankful for, whether they come by gift or otherwise. I might say that we have not
had much given us by grace in this matter since the primary last year.
I do not know how many of you are lawyers, but I know ^ou are all able to read a
plain decision of a court and understand what is set up in it. I wish to read just a
statement or two from the case of Attorney General v. Mav (99 Mich., 555), which is
a long case and is not quoted in full here. If some of you lawyers care to read it, you
will find it a very interesting study. The decision was rendered by the Supreme
Court of Michigan. I read from page 5 of the contestant's reply brief:
' ' We now come to the other portion of the charge, where, in substance, the jury
were directed that they should take the illegal votes from the total vote proportion-
ately, according to the entire vote returned for each candidate in that district.''
Perhaps this quotation is not sufficiently illuminating, for the reason that it does
not state that they were talking about sworn votes. In the same case, above this
quotation, they say:
' 'In the present case the inspectors and other officers of the various districts aie not
charged with active frauds, but were marking ballots of those who claimed they could
not read English, without their first having made oath as to that fact. This may
have arisen from the interpretation of the statute now claimed by respondent's counsel;
that is, that such provisions are not mandatory, but directory merely. And, again, it
appears that proofs were obtainable and actually introduced as to the actual number of
electors whose ballots were so marked."
We have that in this case, 42 being the maximum number. Continuing, the court
said:
' ' This would not, under the facts shown, necessarily taint the vote of the whole
district, and it would not taint the whole ballot if the jury were able to determine
the correct ballot, as under such circumstances it would not destroy the presumption
of the correctness of the other ballots cast. "
The supreme court then continues:
* ' We now come to the other portion of the charge, where, in substance, the jury
were directed that they should take the illegal votes from t^e total vote proportion-
ately, according to the entire vote returned for each candidate in that district. In
this we think tne court, under wellnsettled rules, was entirely correct. It is a fair
way to arrive at results. The rule is based upon the proposition that the illegal
votes have gone into the boxes without the fault of either candidate. If these ill^al
votes can be separated from the legal ones, so that the number is substantially as-
certained, then the poll is too large by exactly that number, and they must be cast
out. In casting them out the nile laid down by the court below is sustained by
McCrary on Elections (3d ed.), section 460, where it is said:
* " Of course in the application of this rule such ill^al votes would be deducted
proportionately from both candidates, according to the entire vote returned for each.'
* 'In American and English Encvclopedia of Law, page 353, it is said:
' ' ' Wliere more ballots are found in the ballot box than there are names on the poll
list, the statutes of many of the States require tiie officers of election to draw out
enough ballots without seeing them to make the number eqiial to that of the voters;
and where they have not done this it is probable that no other mode would be pref-
erable to that of deducting from each candidate a number of votes proportionate to
his total vote compared with the aggregate vote of the precinct;' and the following
cases are cited: Gibbons v. Sheppard (2 Brewst., 128), Finley v. Walls (4 Cong. Elect.
Cas., 367), Piatt v. Goode (id., 650).
" Our statute (sec. 174, How. Stat.) provides:
'"If the ballots in the box shall be found to exceed in number the whole number of
names of electors on the poll lists, they shall be replaced in the box and one of the
inspectors shall publicly draw out and destroy so many ballots tiierefrom, unopened,
as shall be equal to such excess. ' ' '
Mr. Justice Cooley, in speaking of this provision of the statute in People r. Cicotte
(16 Mich., 323), says:
This is all in the language of the Supreme Court of Michigan, gentlemen. I think
what I am about t» read will answer your question, Mr. French, as to the method of
apportionment. The court quotes from Mr. Justice Cooley as follows:
^'As each ballot is usually one of a number designed to be allowed to particular
candidates and counted against others given to other candidates, the drawing may
still work no injustice, since each candidate will probably lose by it a number pro-
CLAUDE 8. CABWBY VS. JOHN M. O. SMITH. 33
portioned to the relative number of ballots appearing for him in the box, and thus the
relative proportions will be preserved.
' 'This role, " he says, ' 'is based upon the doctrine of probabilities. While we have
no statute directing the mode of apportionment laid down by the court below, yet
the rule, we think,, is one which does no injustice to either candidate and in the end
carries into effect, as nearly as may be, the will of the people as expressed at the polls. ' '
Our reply ))rief goes on to say:
''Applying the above rule as laid down by the Supreme Court of Michigan to this
case, we Mud that the number of votes cast in each precinct contested by the con-
testee, voted by voters who were assisted in liavino: their ballots marked, but were not
sworn, phould not be counted. It so happen i that the record is specific as to the num-
])er of votes in each of those precincts, so that the rule to be followed in each of thom
precincts is that that number of illegal votes should be deducted proportionately from
the vote for each candidate. '1 hat this is the correct rule is conclusively shown by
the following ({uotation from ))rief of contestee, top paragraph, page 16."
Which I have already read. Now, that seems to us to be, beyond any question, the
situation of those votes. The precincts and the number of the votes are tabulated at
the bottom of pacje 6. running over to pa*?e 7 of our reply brief, giving the nuiximum
numbers. We are not favored by the other side with any tabulation, l.ut it seems to
us that the question as to those assisted voters is covered, from our viewpoint, very
thoroughly })y the Supreme ('ourt of Michijfan and by the record in the case. So there
can bo no possibility of our beinp* here without a fair rule based upon the statute and
ujwn the decisions of the supreme court of our State.
Now, gentlemen, in conclusion, it seems to me that the situation of this matter is
just as I ptat^d in the })eginning. We have election laws in the State of Michigan.
They are there for the purpose of protecting the secrecy of the ballot, the int^^ty of
the ballot, of giving to every man in every community the right to express his opinion
as to candidates for office, freely and un trammeled. We have come from the old-
fashioned voting schemes, where we scrapped before the polls and stuck a ballot into
a man's finders and knew who he was poing to vote for, down to the day of the Aus-
tralian ballot, which, with all its safeguards, is but a cum>)er8ome mach{n?rv at best.
We have had a number of election laws, all based upon the proposition that every
man is entitled to a free election wherein he may register his indi^ idual will secretly
and honestly. Xow, in construing the present law the supreme court of our State has
spoken with alisolute finality on every proposition which we have submitted to you.
We have not come here to burden this committee or the House with a jp-eat long brief
or a long analysis of this record. We have not taken up little things which we thought
were unimportant and mai^nified them. We have not gone from precinct to precinct
and presented some particular matter just because it was there. We have taken out
of this contest every precinct upon the facts of which our supreme court has spoken
point-blank. We Imve taken nothing else. We have presonted nothing wherein the
decision of the Supreme (\)urt of Michigan has not been on all fours with our conten-
tion. We ask nothing else at vour hands but what is justified by the laws of our State
and borne out by the record in this case. We appreciate the fact that the House is
the sole judQ^e of the election and qualifications of its Memliers. You havf the power,
vou have the authority, you can do as you please, and yet when one states that, he
has not stated what the real power of the House is. 1 he House may have all the
power imaginable, but that power is always exercised by the Houso legally, fairly,
and reasonably, it is necessarily the power to do a thing in a legal and proper manner,
and it would seem to be impossible and incredible that the House would take a law of
the State of Michigan, in the absence of a Federal statute and in the presence of the
Oonsitution, and trample upon and override it.
Under the Constitution you adopt the Michigan election law as your guide, and
for the purpose of this case it is as fairly and legally the law of this House as it is the
law of Michigan. You apply it to this election as the people of Michigan have applied
it to other elections in tne State of Michigan. You wiU interpret it as the supreme
court of OUT State has interpreted it, and when you have discovered the legal and
proper method of procedure, then you have unbounded authority to act, and your
precedents from time immemorial show that vou have always been willing
to keep within the bounds of legality and fairness in cases of this kind. You take
the law of the State of Michigan as the law by which you say we shall conduct our
elections, and you accept the interpretation placed upon that law by the only body
which has a rient to interpret it, namely, the Supreine Court of Michigan. Wo come
before you with the exact rulings of that court. We are asking nothing trivial, noth-
ing unfair. We come before you and make this statement, specifically and abso-
21023—13 3
34 CLAUDE S. CABK£T VS. JOHN M. C. SMITH.
hitely, that in the townships of Sunfield and Winsor not a single legal vote was cast,
and we give you the authoritv in our brief, showing you beyond any question that
there is no other conclusion tiiat can be reached than that every vote cast in those
two precincts was an illegal vote, and that statement is backed up by the decisioDs
of the highest tribunal in our State. And, Mr. Chairman, they quote, if you please,
from something vou quoted in the Mac Donald case:
"There is nothing that will justify the striking out of an entire division but an
inability to decipher the returns, or a showing that not a single legal vote was polled,
or that no election was legally held.''
Now, I want to make it plain, and I hope it will be presented to the House, that
we are standing here simply and solely upon our laws ana the interpretation put upon
them by the Michigan Supreme Court. We have to abide by tnat interpretation,
and is it fair for this House to inject into it something of which we can take no advan-
tage? We are entitled to all tne rights and privileges and protection of our laws.
How are we goin^ to say it is the law of Michigan if we can not get the benefit of it?
We are law-abiding citizens; we have good people up there; we have a big State,
if ^ou please, and we have as good a right to the privileges and pleasures of citizen-
ship as any State in the Union. Everybody abides by the decisions of our courts,
ana every man acts according to them, lives under them, and yet the only proposi-
tion Uiat is against us is covered 18 or 20 times in their brief, where they say, in enect:
"We admit their decisions and their rights under the law, but the House of Repre-
sentatives has a right to throw down, override, and destroy the laws of Michigan.^'
Mr. Elder. Would you mind if I internipt you for a moment?
Mr. Shields. No; not a bit; glad of it. ' .
Mr. Elder. My idea is that while we should pay attention to the State laws, I do
not think that if our interpretation of the laws differed from that of the State supreme
court we would have to accept the interpretation of the court. I do not think we did
it in the Mac Donald case.
Mr. Siuelds. You did follow the decision of the supreme court in that case.
Mr. Elder. Of course, we did in a way. My beliei was that those voters intended
to vote for Mac Donald and that we had a right, notwitlistaiiding any law to the con-
trarv, to count the votes for Mac Donald, and we did that.
Mr. Shields. But there was no Michigan law to the contrary.
Mr. Elder. There was not?
Mr. Shields. No, sir. The only way we came before the court was in a mandamus
proceeding to make the State officers issue a certificate to Mac Donald, and the State
officers took the position that they had no right, in any shape or manner, to act;
that they had no jurisdiction in congressional elections.
The Chairman. Did we not override the decision of your supreme court in the
MacDonald case?
Mr. Shields. No, sir.
The Chairman. Did we not do so in this respect, that under your decisions the
name '* Sheldon William J. MacDonald" could not be interpreted as '^ William J.
MacDonald," and we so interpreted it? Did we not thereby override your decisioiis?
Mr. Shields. Yes, sir; you did to that extent, but wlmt were the merits of it?
Read your own findings and the findings of this committee and you will find that
they are based largely upon the fact that the Republican candidate withdrew, waived
his defense, an^ expressed himself of the opinion that the balbts cast for ''Sheldon
William J. MacDonald" were intended to be cast for ''William J. MacDonald." I
think they were, myself. I think the decision was entirely correct and just.
The Chairman. But our decision was not in accordance with what your supreme
court has always held.
Mr. Shields. That is true; it was not. But you had before you a concededly 1^^
election; there was not any attack made upon the election machinery or the election
returns. You simply held in that case that you had a right to go back of a legal bal-
lot and find out wnat was the real intent of the voter. 1 think you had a right to so
hold : being a lawyer, of course, I do not always agree with the supreme court. Now,
you nad to concede that there was not any " Sheldon William J. MacDonald " — ^
The Chairman (interposing). Yes; and in doing that we overrode every decision
of your supreme court on that subject, did we not?
Mr. Shields. Yes; and I am glad you did.
The Chairman. And in doing that we had to go beyond the four corners of the
ballot?
Mr. Shields. Yes, sir; but that question was not before you; that had already been
conceded.
The Chairman. What was conceded?
CLAUDE S. OABNET VB. JOHN M. 0. SMITH. 35
Mr. Shields. It was conceded that every step was legal from tlie putting of the
ballot into the box to the canvassing of the returns. You merely took the ballot to see
what was the intent of the voter.
The Chairman. And that, as I say, was in the face of your court decisions.
Mr. Shields. Necessarily, but everybody conceded taat there was no man in that
district by the name of "Sheldon WilUam J. MacDonald."
Mr. French. But, Mr. Saields, twice in the operation of the machinery involved in
carrying out that election, steps were taken whicn were not in accord with the decisions
of your court, and we held contrary to the supreme court of the State.
Mr. Shields. How was that?
Mr. French. The first was with respect to the nomination of tlie man on the Pro-
gressive ticket whose place MacDonald took.
Mr. Shields. Yes, sir.
Mr. French. Second, as to the validity of tlie body which presumed to speak for
that district when they named MacDonald. In those two instances the question was
raised that it was contrary to the laws of the State of l^lichigan.
Mr. Shields. Who raised that question?
Mr. French. The attorney who appeared here. He was originally employed by
Mr. Young, and then appeared both in the interest of Mr. Young and, in a sense, in the
interest of the people of that district as well.
Mr. Shields. Did the people ever engage him to represent them up here?
Mr. French. No, sir.
Mr. Shields. Well^ I happen to know thejr did not.
Mr. French. But it all goes back to the original proposition, that you say we defer
to the decisions of ^our supreme court, when as a matter of fact on three different occa-
sions we took a position contrary to them.
Mr. Shields. I think you did on one question.
Mr. French. On three questions.
Mr. Shields. No, sir; not in t^ie primaries.
Mr. Carney. I want to ask a question, and I ask largely for information. Of
course, I have not a brief in the McDonald case, but is not this the condition that
you found in that case: That the decisions that were referred to, with reference to
the primaries, and the legality of the steps by which MacDonald's name finally got
upon the final ballot, all grew out of cases that were tried before that election? Is
it not true that our supreme court has not yet said that if a man's name is once placed
upon the ballot, even though the machinery may have been irregular and illegal in
placing it there, and the ballot placed in the hands of the voters and voted upon,
tibat you can not go back into the preliminary steps?
Mr. Frear. That question was not raised.
The Chairman. That is the ground we took.
Mr. Carney. I think if you will follow out that subject you will find that any
voter has a right to write in the ballot any name he chooses. I do not think you
would have gone contrary to any statute or decision in the State of Michigan. As
a matter of fsu:t, you will find some statutory authority for the thing you did do.
Mr. Elder. I do not know that the views of the chairman and the rest of the com-
mittee coincided with the view I took in that case, but my idea was that the State
had no right to put down qualifications as to who shall or shall not be candidates
for Coi^ress in addition to the constitutional provisions.
Mr. Carney. Our supreme court has assumed jurisdiction o¥er questions between
candidates for Confess in the primaries before election but it has absolutely refused
to assume jurisdiction after election.
Mr. French. I recall one case that was cited to us wherein the decision of the
court was rendered two days prior to election in a matter involving the probate judge
who was nominated in the primaries. The decision was rendered at a time when
the ballot could not be corrected by any party machinery other than by writing in
the name of the new candidate.
Mr. Borchers. I trust that the members of the committee will remember that I
myself and at least one or two others took the position that on account of the action
of Mr. Young in the other case, giving the notice to the people as he did, and the
statement which he signed in wnich he authorized the different boards to put on
the name of Mr. MacDonald, and in which he said, "Let the people rule," ne was
somewhat estopped from denying the rights of Mr. MacDonald. Since the statement
has been maoe here that we took positions contrary to Michigan Supreme Court
decisions I want this statement to go on record.
The Chairman. What bothers me in this case — and it is in the face of your supreme
court decisions — ^is this: Take Sunfield Township. According to your supreme court
36 CLAUMB S. CABKBY VS. JOHNT M. C. SMITH.
the whole poll should be thrown out, but it dooB 83em to me that the ?vidence
shows that we can peffrej^ate the illegal votes.
Mr. Shields. I do not think you can.
The Chairman. Well, I think you can in each of thepe townehips, under this
record. Xow, measuring your ca«e by the yard stick of the chancellor, do you really
think that we ought to disfranchi-e the great bulk of voters in a precinct just becaiue
a few illegal votof have been cast?
Mr. Shields. Absolutely so, if they can not be segregated.
The Chairman. If they can not be segregated, yes; I agree with you on that.
Mr. Shields. But that would mean that this llouse says to the people of Michigan:
"Never mind your State laws and the decisons of your supreme court. You just get
things in shape so that it looks as if men cast these ballots properly and it is all right."
We nave no protection from you up in Michigan; our protection comes from our
own State laws and supreme court decisions, and yet you tell us: "We will not follow
your laws in congressional elections," If the door is that wide open, I do not know
what the final result will be. I know that for years past our legislature has been
trying to make elections more pure and honest, the polls have received greater protec-
tion, and everything is bein^ done to keep elections pure and clean. I know that
OUT supreme court has said m the Kirby case and the Rinehart case, and in every
similar case wliich has come before it, "Gentlemen of the State of Michigan, here
is an election law. It is your business to obey it.'* Now, this House and this com-
mittee can say to Michigan, "You can have your laws and do as you please as to
local affairs, but your laws are not precedent; your laws will not be followed in con-
gressional elections," and you have that right. We are here to-day fairly, sauarely,
and legally, as citizens of Michigan, standuig upon the laws of Michigan ana asking
that we be allowed the protection given us by those laws. Under those laws the
returns from the townships of Sunfield and Winsor are illegal. In those two places
the election was absolutely illegal. Not a single legal ballot was cast in either town-
ship, measuring the ballots by the decisions of our supreme court. If ^ou attempt
to override our laws vou may do so, but just stop and think what you will do to tne
people of Michigan. Would you like that kind of a rule shoved into your own State?
If you take that view of it, then Congress had better paas a general election law for
Membera of Congress. There is no escape from it; you will either accept the laws
of Michigan or ignore them.
Mr. Elder. What is the general total left if you take out those two townships?
Mr. Shields. In Sunfield Township Smith received 174 and Carney 104 votes; if
all the votes are thrown out, it will give Carney a gain in the total amounting to 70
votes. In Winsor Township Smith received 174 and Carney 92, indicating a gain of
82 for Carney, and a gain from both townships of 152.
Mr. Carney. Wliat about Carmel Township?
Mr. Shields. I have not come to Carmel yet. Now, I want to state again, at the
risk of being a bore, that we place the townships of Sunfield and Windsor squarely
before this committee and say that the vote in those townships was illegal and the
entire vote must be thrown out, if you are going to follow the statutes of Michigan
and the decisions of our supreme court.
Mr. Frear. And accept the testimony of your single witness on that jwint?
Mr. Shields. Oh, no.
Mr. Frear. Only one witness testified that they were vitiated.
Mr. Shields. That is not the point.
Mr. Frear. The testimony of two witnesses was that the man inquired of them
tlie name of the party for whom they wished to vote. Is that it?
Mr. Shields. Oh, no; that is not the same precinct.
Mr. Frear. Then I beg your pardon for interrupting.
Mr. Shields. There is a misunderstanding. The township of Sunfield is where
they appointed an instructor not a member of the board and not an election offical
of any kind, and he gave out every ballot pven out that day. In the case of McCall
V. Kirby it was held that under such conditions the ballots must be thrown out.
Now, I come to the township of Winsor. In that place not a single ballot had the
initials on it.
Mr. Frear. In the right place?
Mr. Shields. Not at all.
The ('hairman. They were placed there, though, were they not?
Mr. Shields. Yes; before they went into the ballot box, but no ballot with an
initial on it went into the ballot box. and the statute is specific that such ballots are
void and shall be cast out. That is covered point-blank bv the Andewon case, which
is absolutely a parallel case, on all fours with this brancu of the case. Let us take
up the township of (^armel, where they l?t in two men who were not members of
CLAUDE S. OABNBY VS. JOHN M. C. SKITH. 37
the board. If that case ever came before our supreme court, they would absolutely
hold it to be far more in violation of the law than the conditions in Sunfield and Winaor
Townships.
It seems to be, following any of the decisions which you have read, or any of the
election laws, that in the township of Carmel there was the most direct violation of
the rights of the individual voter.
The Chaikman. That is the township where two disinterebted parties were per-
mitted to open the ballot box and counted them in the afternoon?
Mr. Shields. Yes, sir; while the voters were walking up to vote. That was the
situation. Take the two wards in Climax. In one of thera the condition was such
that one, Mosier, a Democrat, objected, and one man, so hardened to such thin^,
replied, *'\Vell, what are you going to do about it," and laughed and gloated over it.
Anyone acquainted with human nature knows that any man who makes an answer
of that kind is so hardened by his environment that he is morally irresponsible, or he
would not gloat and laugh over the wrong he was doing and that, if you please, in
direct violation of a law which says you shall not solicit votes.
Mr. Frear. You pay that that man gloated and laughed when he made that state-
ment? That being so, what is your information on that? Is that a matter of record?
You were not the examining man?
Mr. Shields. No, sir; I was not there.
Mr. Frear. Then why do you make that statement? If you know nothing about
it, except from hearsay, you should not present that to this committee.
Mr. Shields. Because, if you please, no man under those conditions makes such a
reply unless he makes it that way.
Mr. Frear. Do you think that is fair?
Mr. Shields. Yes; I do, absolutely.
Mr. Frear. Without being present or knowing anything about it?
Mr. Shields. Yes, sir.
Mr. Frear. With only a record before you?
Mr. Shields. Yes, sir; because a man does not make tliat kind of a reply and use
that language unless he makes it with the mental attitude I described.
Mr. Frear. I think tliat is an unfair spirit for you to assume.
Mr. Shields. I do not desire to be unfair. It seems to me as though I have a right
to draw that deduction.
The Chairman. The evidence in that case in the third ward shows that he did not
solicit over 8 or 10 votes.
Mr. Shields. I think that is true.
Mr. Frear. Do you maintain yoU can not segregate those wards?
Mr. Shielhs. I maintain the supreme court said it was an actual fraud; that is, an
actual fraud in this case, and taints the whole precinct with fraud, and therefore the
whole precinct must be thrown out.
Mr. French. May I make a suggestion?
Mr. Shields. Certainly.
Mr. French. An examination of those cases where they go into the booths and
solicit inside the rail and where the boards seem to be fairly well kiu)wn shows that
the court seems to make a distinction, probably on this ground: That where there is
a mere violation by going into the booth and seeing a man mark his ballot and there is
no claim of anv fraud or solifitati(»n, and it is shown that one of each party goes in,
that that is not illegal, but where the soliciting is going on inside of the rail the court
seems to make the distinction that that may go much further on the ground that the
people who are about to vote may be influenced by it. That seems to be the reason
for the distinction.
Mr. Frear. That i^ one of the decisions.
Mr. French. Yes; that is. the Michigan reason for the distinction, arid you might
be doing justice, if you adopt that reasoning, by throwing out the eight votes, but
you might be overlooking many more of those votes that were influenced by that
same conduct.
Mr Frear. Bv the conduct of the instructor?
Mr. Shields. That Ls one of the things that is disputed evidence in this case.
Mr. French. Is there any evidence of what the mstnictor said or did? I under-
stand not.
Mr. Shields. I think not.
Mr. Frear. I am talking about the other precinct. I am speaking of the precinct
that Judge Post asked about, where the fraud was present.
Mr. French. That is right.
Mr. Frear. There is no evidence as far as Sunfield is concerned.
38 CLAUDE S. CABNET VS. JOHK M. C. SMITH.
Mr. Shields. Now, gentlemen, I want to refer to just one phase of this proposition.
I have shown you what the election laws of Michigan hela and what the Michigan
Supreme Court decision held. I call your attention to the contested case of Belknap
V. Richardson, in 2 Hinds' Precedents of tlie House of Representatives, page 518,
section 1042. That was a Michigan case in which the question arose in a contest
over ballots containing distinguishing marks prohibited by the statutes and votes
cast by inmates from the soldiers' home in that district. The supreme court passed
on both of those questions and the committee followed the rules oi court on all points
of law. Our case is whether the election law prescribed certain things.
The supreme court has held that this precinct should be thrown out. The House
itself in tne Michigan case have said, in tne case cited, that they would have followed
on all questions of law. They can follow it or they can reject it, b'ut that is our case,
and that is what we are standing here upon, and we believe as firmly and as faithfully
as men can believe that we are en titled to follow that logical sequence of law, author-
ity, construction, and decisions, and that we have a ri^ht togo oefore this comm^ittee
and therefore to the House and make a report, based, if you please, upon this record
as to the testimony and facts, upon the express provisions of the election laws of
Michi^n, upon the Michigan Supreme Court decisions, and upon the precedents
established by the House itself, and that under these decisions we are entitled to
have a report that Mr. Carney be seated.
The Chairman. Is there any other case except this contested case that you have
in mind?
Mr. Shields. I have not cited any others. I have been through Hinds and other
authorities, but it seems to me in the case I cited there was an express line of authority,
absolutely point-blank on the same line we are on, and I did not go outside of it. It
applies to tne Michigan statutes, the action of Conpress upon Micnigan statutes, and
the Michigan Supreme Court decisions, and I fail to see any reason for going any
further.
Mr. French. Did you not come across a number of cases that involved this same
question where Congress refused to recognize the contention that the law of the State
be not followed exactly, where no fraud was shown and where Congress said the clear
intent was to vote in a certain way and the votes were counted? One case I had in
mind, I think, involved Senator Swanson, formerly a Member of the House from
Virginia. I think that is the case that raised this identical question touching
procedure, that involved a ^reat number of precincts, and where Congress at that time
neld there was no substantial injustice done and that the voters were entitled to an
expression of their opinion in a way believed at the time to be legal?
Mr. Shields. There are a great many the other way. As a matter of fact, I have
come to this conclusion ^ that most cases dej)end upon the immediate situation as they
come before the committee of the House.
Mr. French. What do you mean by that statement?
Mr. Shields. I mean as' the facts of the cases come before the House. There seems
to be, as I analyze it, a belief on the part of each House that it can do as it pleases in
regard to a case as that particular case appears to them.
Mr. French. On the merits of the case?
Mr. Shields. Yes, sir. I remember one case in which the House became so con-
vinced that both parties were tainted that they refused to seat either one of them.
But when we talk of precedents, I am frank to confess that 1 think the precedents in
the contested cases in this House furnish about equal groimd to prove anything on
either side.
The Chairman. I think you are right about that.
Mr. Shields. With the realization of that, I will say that we are not here without
having considered the law and considered our rijjhts and the powers of the House.
We are saying that this is one of the cases in which the people are entitled, if you
please, to the law as it is written on the statute books and by the courts and by this
House.
Mr, (vARNEY. Is there any case where the House has ever held that they they have
a right to override the statute law as it is plainly written on the books? Have you
any case in mind where that is done?
Mr. Frear. Yes; I think there is, where the statute makes new qualifications.
Mr. Carney. I mean on the que^stion of the election machinery. The reason I
ask that question is because there is a section of the Constitution that delegates that
power to the State. It reserves the qualification proposition.
Mr. French. I think I can furnish you a multitude of cases that involve that ver>'
question, and I raised the question a minute ago, not that I do not agree with Mr.
Shields absolutely in his statement that he can find precedents on many of these
CLAUDE 8. GABNEY VS. JOHN M. C. SMITH. 39
questions, but I thought from his earnestness and from the ca^s that he had cited that
he was purporting to give what he understood to be a well-defined line of opinion of
this House, and I wanted him to know that there were other ideas touching the deci-
sions of the llou-'o. and that the derisions are overwhelmingly in favor of the policy
that Congress hn^ the right to pass upon provisions of the State laws in re^rd to holding
elections, that the ballots shall be marked and coimted, that the officials of election
precincts shall be designated, and the way names shall be spelled, and a multitude
of questions of that kind that are recognized in the statutes of the several States, and
yet where Congress has refused to follow the mandates of the States in so providing.
Mr. Frear. In other words, you hold that they have not only the power, but the
right to say by such a decision that the unseated member or contestant is to be bound
by one law and the man who actually gets the certificate by another?
Mr. French. No; I would not.
Mr. Frear. It may be just the opposite.
Mr. French. Take this proposition I had in mind. Take the initialed-ballot
proposition. You have a right to presume, as a matter of law, that the election
boards obey the law in the absence of any showing to the contrary. The presump-
tion is, in the absence of any showing, they obey the law, and we know on the plainer
questions they usually do. The question of the initialed ballot is one that is well
understood generally speaking. It is fair to presume that every uninitialed ballot
outside of Windsor Township that constituted a vote for the Democratic candidate
was not overlooked in the other 150 precincts but was thrown out.
Mr. Frear. Why?
Mr. French. Because they knew the law and it was right and legal it should be
thrown out.
Mr. Carney. Those votes were all counted for every other candidate, and the
question was never raised until they examined the box.
Mr. French. In the other precincts none of those votes for the Democratic can-
didate were overlooked that nad no initials upon them. These things happen fre-
quently, sometimes in twos and fours, and otherwise.
Mr. Carney. These votes were all counted at the general election for all the Dem-
ocratic c;andidates, as suggested awhile ago.
Mr. French. In this particular instance?
Mr. Frear. Let us take this particular instance where those initials failed to
appear. Those votes were regularly counted and reported. Was that not evidence
to your mind that in every other precinct that same condition may have existed,
that the initials may not have been on in a single case?
Mr. Shields. No, sir; that is not the presumption; it is a possibility, but not a
presuinption.
Mr. Frear. It was not discovered here. I am speaking as a matter of fact. It
was not discovered.
Mr. Shields. Not in that particular instance. I do not think you find iti occurs
very much, Mr. Frear.
(At 11.45 a. m. the committee adjourned until Monday, December 8, at 10 o'clock
a. m.)
Committee on Elections No. 1,
House of Representatives,
Monday, December 8j 1913.
The committee met at 10 o'clock a. m., Hon. James D. Post (chairman) presiding.
- The Chairman. You may proceed, Mr. Smith.
STATEMENT OF MB. JOHN M. C. SMITH, CONTESTEE.
Mr. Smith. I want to thank the chairman and also' the members of this committee
for their kindness in permitting me to appoar in person before them in this case. I was
very much interested in the presentation of the case for the contestant, and it is not my
purpose to deviate unnecessarily from the facts as established by the record, and if I
get outside of the record I hope I will be corrected.
The Chairman. Your attention is liable to be called to it if vou do.
Mr. Smith. If I do not state the facts as they are. I do not expect to present the case
with the eames<tnes8 possibly that my friends on the other side have, because I know
that you are looking lor light and assistance in trying to determine what is the correct
thing to do in an election case that I think has been honestly conducted and fairly con-
ducted, in which the contestant is not injured, and, by a majority of the votes cast by
40 OLAUDE S. OABNEY VS. JOHN M. C. SliflTH.
the le^l voters of the district from which I come, I think that I am duly and fairiy
elected. If I did not receive a majority of those votes I would not expect to represent
that clast<ic district, for it is a district that anyone can be proud of representing. There
are five college centers in it, with an order of intelligence as high as any district in the
country, composed of honorable and upright citizens, and any errors that have been
commilted up there have not been committed intentionally, and I wish to call the
attention of tne committee to the fact that in this whole record, which is unnerosearH^"^
voluminous, according to my idea, I do not think there is a fhiud proven. There is
not a corrupt practice shown. There was not repeating, and I will say now, without
fear of successful contradiction, that the record snows as honorable a campaign on the
part of the contestee and his friends as was ever held at an election poll.
My friends on the other side wish to stand absolutely upon the laws and a technical
ruling upon tlie laws without allowing this matter to be tempered with justice, or
witliout the consideration that every vote cast tliere was cast by a duly qualified
elector of tliat district, and. further. I firmly believe that every man who is a good,
law-abidin<j citizen of our Republic has got the right to vote once, honestly and up-
rightlv and have that vote counted, and I Uiink the contestant in this case will reoeoo
from his po.sition in asking to have this case decided absolut<»ly upon tlie letter of the
statute, and he comes here and makes tliat claim, and I say t> the gentlemen of tJiia
committee that that claim gives him no standing in this ca^^e, and I will call your atten-
tion to the fact that if he Ls asking for the rules of the statutes to be strictly complied
witli and his case depends upon tliat statute alone, which apparently it does, then I
will ask him whether or not he is willing to c oncede to me tlie strictness of the rule that
he asks, or does he want the benefit of a rule that he would deny to me. and 1 will ask
him if tlie statute oi the United States does not say tliat he shall not take any testimony
that is not siKM-i'^ally -^ct I'ortli in his notice of contest, and in the Windsor case and
in the third ward oi th(» city of Charlotte tliere is not a s(-intilia of evidence nor of
notice; tliere is no charge and there Ls no ground for one and there is no specific allega-
tion, but he wants the gentlemen of tliis committee to set aside the statute of the Re-
ptiblic applyin;^ to this ca^e and depri\'e thcvc honest voters of their franchise under the
strict letter of the statutes of the State of -Michigan. I .say that for him. Now. the
claim is made
The Thairmax. Will it interrupt you to ask questions as we go a bug? You say as
to the third ward of ( 'harlotte and Winds )r precinct that no notice as to any irregular-
ities there, no H|)ecification. is contained in the notice. Did not they amend it?
Mr. Smith. They filed an amendment, as I recollect it. after they should have given
their notice, about 90 days after their time expired for giving the notice and after the
ballots had been destroyed, .si) that we could not have a count of the ballots there.
Mr. Uran't Kki.lowm, of couns<»l for contest ee. They a'^ked for leave to amend, and
that leave has not been granted.
Tlie Chairma.v. Who granted .'^u<li leave.
Mr. Fkllow.s?. It has not been irranted; they asked that leave.
Mr. Smith, They asked sul)sequcntly, but it has not been grantcvl. I want to quote
the rule we have oi the taking of the testimony in this vaso.. and we can probably save
a little time by my just referrins^ to some memoranda 1 have here. In thi^ case a com-
pliance with the strict letter of the law was not confined solely to one side. Departures
occurred on botli sides. That in ap[)arent, but in tlie end every le^allv qualified
voter who desired to vote and ( ast his ballot voted his ticket and he had it honestly
counted the way he wanted it. without any (^irruption, intimidation or fraud or
corrupt practi( e whatever. I <harge that as {)eing in line witli the proof — 900 pages
here -and 1 ask tlie other side to mention a case where we deviated from tiie record.
They say in two little instances that John Nichols, in the second ward of Charlotte,
put 6 ballots in the ballj)t box, and that is an open fraud, because he was running for
a minor office upon the Republican ticket for circuit court commissioner. Now, in
that whole record they never say a word about me. They never get me at the polls
even. I was not hustling an^und the polls, nor I did not blame the contestant in
this case for his activity. I did not ask any pnwf of it, but I never was at those polls
except to vote. I never knew where they held them, except from hearsay, in m^
own city, and I voted and went alx)ut mv Dusiness and allowed them to vote as their
own free consciences dictated. Tliey said John Nichols was guilty of fraud because
on the ticket he put 6 ballots in there. How did he come to put them in the box?
One of the inspectors was taken sick and had to go home and go to bed. My friend
stated in his opening that the record does not show that he was sick and had gone to
bed. I say it does, and I can produce it if he denies it now, and, Mr. Chairman,
John Nichols put those 6 ballots in the box when the Democratic challenger stood
right by his side, and the very Democratic challenger that they placed upon the
stand. Their only witness to that effect testified that he stood beside him and he
OULXJDE S. CABNEY VS. JOHN M. C. SMITH. 41
did no wrung, and I would not have permitted it. And the gentlemen on the other
side say that that precinct ahould be thrown out for that. That is what they say,
but I claim it ought not to be, because that might lead to such a condition of things
that you could not conduct your elections. Suppose something would happen?
Suppose the building would catch on fire, or suppose two or three officers became
sicK? Suppose no one was there and you wanted to keep within the record? Some-
body had to conduct the election. But that is the sum total of the fraud in that
matter.
In another case they went outside of their notice of contest and they did not even
ask to amend their notice of contest in the third ward of the city of Charlotte, where
they said^there was electioneering down at the polls, and the record does not show
that. But they are asking that we decide this case upon the strict rules of the statutes
of the State of Michigan: and I say if that is so, they must follow the statutes of the
Republic, and, further than that, they hav^ no right to complaint, as my friend did
in his elo(]|uent peroration. We are law-abiding citizens up in Michigan, and we
have certain regulations to guide us, and do not say to us that we must be foreclosed
from acting under those rules. Does he contend that hi^ practice in the circuit court
is taken out of the Tiffany Court Practice? Does he know that in negligent cases,
where a person is injured on a sidewalk, that that person is sent out of the State to
gain a residence so that the action can be brought in the Federal courts, and that
where life insurance policies state a man takes his own life and he is prohibited ^m
recovery that he is sent out of the State in order to bring an action in the Federal
courts so an action would lie, and my friends on the other side want to come before
this Congress and come before this committee — and I do not ask a rule that I am not
willing to abide by-^— and has elected lo come before this fonim. and when he comes
here he must be guided by the niles and practice before ycjur honorable committee,
and I say there is no fraud.
I say that this record shows that Jackpon Mosier said that this iunpector said down
there to a confused, voter who stated, if you please: *'I want to vote the straight Demo-
cratic ticket, except for two persons, ^'^^. Stores, the Republican, lor slieriff," and one
other that I can not think of just now that that inspector 8;ud, "How about J. M. C.
Smith, my neighbor?" And ho says that is a fraud, and Jackson Moyier said that
they stated it tci one voter, and, to be fair about it. he undertook to shade his testimony
by saying there were suggestions made to all tIiot»e askirg lor instructions, and the
statute says that information shall be furnished by the in«j>ector when he asks for it.
Is there any heinousnesa in that? 1 was nut there. How could 1 help it ? It was
not carried on in my interest, and although Mr. Mosier undert<H»k (o shade his testi-
mony by saying there were suggestions made to all those asking tor ini*tructions — he
thought there were seven or eight — ^lie did say on his direct examination- -he was
their witness— there was only one, just one, and that is all, ard I put on every inspec-
tor and I put on the tally clerks and every man there, and every one of them said it
was never made except to that one voter, and wlien my friends were put on the stand
the hardest thing to disprove for me was the imputations or the sunnises- something
you could not get hold of — but it was their witness who testitied to the fact that it never
was made, except in one instaiu,'e, and then when the coun.^cl on the side of the con-
testee turned the witness over and he was their witness, then he said the same sug-
gestion was made to those ot hoi's a.sking for instructions, ai'd that was the sum U tal
of all that, and every witness 1 could find around there who knew about it came in
willingly and told me there was nothing connected with tliat, and 1 will ask them
whether or not thev can find anything in the record to the ((uitrary.
The Chairman. "Mr. Smith, did not Mr. Mosier testily that theso sauic suggestions
to voters, who asked for instructions, were made to seven or eight?
Mr. Smith. That is what 1 said — all those asking for instruct ioi>.
The Chairman. You meant seven or eight?
Mr. Smith. Yes, su*.
The Chairman. Do you admit that under the decision of the attorney general against
McQuade the supreme court in that case held that would vitiate the whole poll in
that precinct?
Mr. Smfth. No, sir.
The Chairman. You do not admit that?
Mr. Smith. No, sir; 1 would not want to admit that. Now we are in a different
court, and I do not claim you are bound by the statutes or the de<isiors of our court.
The Chairman. The point 1 put to you Ls whether the decision of the supreme court
in that case woidd apply here, a^s claimed by the gentlemen on the other side?
Mr. Smfth. I woulcl not claim that is a well-considered case, antl it is contrary to
the rulings of the Committee on tlec^'tions here. But you asked me about that case.
No; I do not admit it. Of course there is nothing in the notice of contest that this
42 CLAUDE S. CABNET VS. JOHN M. G. BBCITH.
thing was coming up in any way, no amendment asked or understood, and I want to
read a little bit about the rule we were up against here in that case.
The Chairman. The third ward of the city of Charlotte is not included in the notice
of contest or amendment?
Mr. Smith. No, sir. They are here as a matter of simply favorites. This same
charge is made in their brief. They evidently overlooked it.
The Chairman. Give us the page of the record.
Mr. Carney. Page 7 of the record, paragraph 4, of the original notice.
Mr. Shields. And paragraph 5 of the prayer on page 12.
The Chairman. The townships of Carmel, Bellevne, Btmton, Eaton, Koxaud,
Windsor, and the first, second, third, and fourth wards of the city of Charlotte.
Mr. Carney. And in the prayer.
Mr. Smith. The charge is what I am talking about, and that will aid the committee
and it is very far from my purpose to make a statement here.
Mr. Fellows. The charge is that they did not swear the voters as to their inability
to prepare their ballots.
Mr. Smfth. 1 think I am correct in that statement.
The Chairman. You may proceed, Mr. Smith. We will look into that.
Mr. Smith. I want to say something about the rule they proceeded under, and I
claim that wm unfair, that it was unjust, and it is unconscionable — ^the rule that they
laid down there for the taking of their testimony. I am not saying that is in the
record, but thev took 900 pages of testimony here, and undoubtedly you know that
you can not look it over so as to become very familiar with it. That would be asking
too much. I am very glad of the opportunity to appear and answer any questions
that will throw any light whatever upon this matter. We were referring to the third
ward, and I make the point against two of those wards that they violated the statute
of the Republic to invoke the statute of the State of Michigan, and the statute of the
Republic is what you are proceeding under. While the statute of the State of Michigan
has fixed all our general election laws, of course a person on the bench, when he r^da
what the statute is, must decide it so and so, put that cold rule is not the rule by which
this committee is trying to say who the electors wanted there and who was honestly
elected in the third ward of the city of Charlotte. We maintain that no allegations oV
grounds whatever concerning this ward are contained in contestant's notice of contest
as required by the rules of the committee or the statute, but the proof was taken under
the verbal notice found in the record during the taking of the testimony, in which
counsel for the contestant stated that was the rule, and I will read from the record
what he said :
"Mr. Adams. Wo will give you notice now that any new facta that develop in the
taking of this te-^timony or any other testimony on behalf of the contestant that we
shall apply for an amendment to the petition; and you can, therefore, prepare your-
selves to meet the facts presented that may not be set forth in the petition.
"Mr. Maynard. We will object to the taking of testimony upon matters that are
outride entirely of the notice of contest."
How are we goine to prepare ourselves "to meet the facte presented that may not
be set forth in the petition ? A pretty hard rule. This was on page 67 of the record.
The j^ame thing is on page 271 , where they invoked the same rule. Now, if they say
they want this decided according to certain statutes, then we want to say that if we
are to be loaded with the burden please give us the benefit that goes with the invoking
of such rule and apply it to both sides.
Now, I wish to call your attention to the briefs in the case, and I will only take up
those things that might give a little light or lo show the nature of the case or what
the contestant claims hero and what T think l*« very unfair and not authentic.
The conto.-^tant in this case makers the charge that my answer is not sworn to, and I
tell him, who ha.s his name and oath to the notice of tliis contest, that I can pick out
several things that are absolutely untrue. He swore in his petition ver^-^ absolutely
and Holomniy that ho had a majority of 31 votes down in the township of Climax,
and on account of that ballot he received a majority of 11, and he already had one.
He sworo solemnly there were 49 votos that were misleading, that had not been
returned by the insi)octors on account of a mistake, and that there was no wav of get-
ting at it up thoro in Michigan. He asked the committee if they would not allow him
to bring that ballot box dow^n and count them, and I told his attorneys to ^o there
and count that precinct and s^ive him every vote. He swore he had a majonty of 31
and he got 11. and we conceded it to him, but when he says there is a mi^^take in the
second district of Battle Creek the record shows that they neglected up there to return
7 votes. We are mot with every objection from the beginnmg to the end, and with
the imputation of fraud, and every stumbling block was put in our wuy, and if thero
CLAUDE 8. OABNEY VS. JOHN M. O. SMITH. 43
is anvihing that I have not done to throw light on this case at an expense I can ill
afford, I ask you gentlemen what it is.
The contestant says that I did not swear my children. I will ask him what they
could have sworn to. He says he saw my boy coming across the corridor with some
of those returns in his hands.
The Chairman. Is that the fact, Mr. Smith?
Mr. SifrrH. That is the proof.
The Chairman. What was the boy doing with those returns?
Mr. Smith. They had been in the treasurer's office collating them on the adding
machine, and there were some 25 precincts in my county. All the proof is that Mr.
Robinson swore that he saw him with some returns in the presence ofjohn Davds and
Mr. Prague, ex-county clerk, walking across the corridor.
The Chairman. Were these returns turned over to your children?
Mr. Smith. No, sir. It was just proved that they had them. They asked the boy
what he done. There was nothing proven there that these children did a venal act —
nothing but the carrving of a few returns across the corridor. He is a boy 14 years of
age, and they asked him what he was doing around the courthouse there.
The Chairman. Did they not call your daug^hter?
Mr. Smith. Yes, but they did not put a particle of proof in. They claim she was
there at the office. I ask him if they claim anything else. The only proof is that she
was in the county clerk's office, ana the contestant wants a seat in Congress because
my daughter sat in the county clerk's office, and he wants a seat here because my son
14 years old, in the presence of the ex-county clerk, carried a few returns from the
treasurer's office to the county clerk's office, 6 feet across the corridor.
Mr. Carney. The ex-county clerk.
Mr. Smith. That is what I say. But if he was the county clerk, if this rule is going
to be invoked do not let your children go to the polls pr to a county clerk two years
after an election to see what the returns are for your father. There is not a particle of
venality shown in that, and I say it without any fear of contradiction.
Now,' then, I want to talk about these returns. 1 was going to eay, liowever, that
down in the third ward it was stated that one of the voters said he wanted to vote for
two Republicans, and they suggested one of them might be J. M. C. Smith, his neigh-
bor. It was proven I was a neighbor of this man. In section 3636 of Laws Relating
to Elections in the State of Michigan is found, on page 57, these words:
**^Tien an elector shall not be challenged or shall have taken the necessary oath or
affirmation he shall be permitted to vote. On entering the room the inspector having
charge of the ballots shall deliver to him one of them, and the clerk snail enter his
name upon the poll list, together with the number of the ballot given him and on
request such inspector shall give explanation of the manner of voting; if deemed
necessary by the board an interpreter may be called."
That gives him the information, and our statute further provides that unless he is
challenged that voter shall be permitted to vote, and there was a Democratic challenger
right there and he permitted this man to vote, and he had said, on page 46 of the record,
that that was the only one that that suggestion was made to. That is the Democratic
challenger. Ihat is their witness. He said that. Mr. Dunning, the inspector, on
page 405 of the record says that is the only time. Mr. Fisher, as honorable a man as the
sun shone on, on page 425 of the record, says that is the only time. Mr. Munger, on
page 428, one of the tally clerks, said that was the only time, and Mr. Dowdigan also,
and Mr. Sawyer, a splendid gentleman in every way, a Republican challenger, said
that was the only time. Who savs there is any fraud? They brought in everybody
they could, and it was admitted on cross-examination that those instnictions were
given to all those asking for those instructions. That was testified on both sides.
Now, he says, that my answer was not sworn to, and 1 want to read a little of the
record of the case that is very familiar to you and that makes the same claim tJiat I
make and contend for in this* case, and I will then give the signature.
"And for furtlier and counter notice of contestant tJierein you will pleaije take notice
that I shall rely on the followinjj grounds upon which to rest the validity of my elec-
tion and invoke this rule: That m said election I received a plurality of all the votes
cast in said district by the legally qualified voters in said election, and in the returns
thereof by the judges in said election of all the election precincts in said election I
was duly and properly awarded the certificate of election to said office. *'
I claim that is word for word in this case.
•' Second. I deny your right to alter or amend the notice of specification and charges
made by you hereafter, as tne law requires that you shall give me notice of such speci-
fications and charges as you wish to make within 30 days after the ascertainment of
the result, said 30 days naving expired."
It was more than 90 days in this case that had expired.
44 CLAUDE S. CABKEY VS. JOHN M. G. 8HITH.
"And now liaviug fully answered your claims and centrists for the confi;rea8ional seat
to which I was elected, I re8|>ectfully claim that your petition in this behalf should be
diaregarded and the proceeding dismiased. Oscar W. Underwood, BirmiBgham, Ak..
December 19, 1896.'
And my friends know there was no law asking tJiat 1 should put a jurat to this
answer. And why do they insist, and why are they here?
Mr. Carney. \Ve can clear that up. I think you misunderstood it. We call atten-
tion to the fact that we asked the te^^timouy to be stricken out.
Mr. Smith. You make a specific charge of that and 1 have a right to comment on it.
If you now say there was nothing to it, all right; but the charge was made.
Mr. ('arney. We made no argument upon it and made no claim upon it.
Mr. Fellows. Then why should it have been put in there?
Mr. CARNEY. As a fact.
Mr. Smith. I am reading the briei as it in made here. Now, then, I find in his brief
also that the charge is made here that there were returns changed at the pergonal
request of John M. C. Smith, and I wish them to point out a place in the record where
there was a return made at the personal request of J. M. C. Smith. They can not do
it, because it is not in there.
The ('hairman. Where is that in the brief?
Mr. Smith. On page 2, Judge, of their first brief, about halfway down in their second
paragraph, where my name appears in capital letters.
1 want to call the attention of the committee to the statement made on page 3 of the
brief where the brief states that I, personally, J. M. C. Smith, contestee, and his attor-
ney supprccssed certain afiidavits, and I will ask them to point out the evidence in that
case. There is none.
Mr. Carney. Do you wish us to do it right now?
Mr. Smith. Ye.^.
Mr. Carney. All right, we will do it right now.
Mr. Shields. It is in the record, page 249.
Mr. Smith. 1 will a:«k Mr. Carney to look it up.
Mr. Shields. May I read it rip^ht now?
Mr. Smith. Very well.
Mr. Shields. D. W. Knapp was on the stand.
**Q. If you can find that statement, I wish you would bring it back with you to-
morrow.— A. Well, 1 can't do it.
*'Mr. Adams. I wouhl like to have the witness see if he can find it and come back
here to-morrow.
"Mr. Frankhauher. Will it do if he sends it in a letter?
"Mr. Adams. No. I would like to have him come back to-morrow, too.''
Mr. Shields. In that connection 1 would like to read from page 320 of the record —
in the testimony of Mr. John C. Nichols.
Mr. Carney. I would like to make this sugtrestion: The paper that the witness was
referring to and that they were recjuesting him to produce was the copy. Mr. Nichols
has testified this original had bee7i delivered.
Mr. Fellows. We will let you make onil proof of the contents. That was the state-
ment made by me.
Mr. Smith, lot me call the attention of counsel that they had the original in their
files there.
Mr. Shields. 1 1 was stated Friday it was an affidavit signed by some of the members
of the board in Sunfield Township.
Mr. Fellows. And afterwards produced in court.
Mr. Shields. As we will sliow you on page 320, at the bottom of page 320, Mr.
Nich(;la on the sti«id.
"Q. You went out into Sunfield and got some affidavits, didn't you? — A. Yes, sir.
"Q. Where are they?- -A. I don't know.
"Q. What did you do with them? — A. I think I gave them to Mr. Smith.
"Q. You wrote the affidavits out, didn't you? — A. Yes.
"Q. Of wiioni did you get attiduvits?— A. Personally, I got affidavits from Mr.
Mapes — 1 can't tell vou his given name; Harry Mapes — and I think the other
"Q. Huber? A. *Xo, sir."
Mr. Shields. That is the same paper that Mr. Knapp was discussing on pages 219
and 250, when the attorneys said they could not produce it.
The Chairman. That is the statement that Mr. Smith was discussing on page 3 of
the brief?
Mr. Shields. Yes. sir.
Mr. Smith. About suppressing affidavits. If I suppressed any affidavits there the
record will contradict that by showing that they were not delivered to me. On
CLAUDE S. CARNEY VS. JOHN M. C. SMITH. 45
Saturday night during the taking of this testimony Mr. Nichols was asked if he would
look in his office for that paper and bring it in to the next meeting on Monday morning,
and Mr. Nichols said yes, and on Monday morning he handed the counsel the paper.
Mr. Shields. Is that in the record?
Mr. Smith. Yes.
The Chairman. Did they furnish you that paper?
Mr. Shields. They did afterwards.
Mr. Smith. Just wnen they told you.
Mr. Carney. After they discovered we were in position to make oral proof of it.
The Chairman. If you furnished them with that paper, you did not suppress it.
Mr. Smith. I thank you, Mr. Chairman.
Mr. Frear." Would it not be important at this time to see what that affida\at was?
The Chairman. Yes; I think so.
Mr. Smith. I will read it. Here is the request that was made. Mr. Nichols was
on the stand Saturday, March 22, 1913. They commenced at 9 o'clock in the morning.
He was up at Sunfield, and they say he went up there as my counsel.
Mr. Carney. He said so.
Mr. Smith. I am going to say that I sent him up there and tell why I sent him,
because he was a notary public, and I sent him up alter the board of coimty canvassers
had met; and Mr. Carney was ov^r there filing affidavits from Sunfield, and I asked
him to go up there, 23 miles over pretty bad roads, and see what there was to that,
and he brought back these two little affidavits. Now, then, they read into the record
tlie affidavits of Mr. Hager and Mr. Mapes, which are found on page 324. Those are
not the affidavits they say were suppressed, but they read those affidavits in. Now,
we talked about the fchapp affidavit, which they say we suppressed, and this is what
they asked Mr. Nichols, wno went up and got it and never snowed it to me:
"Q. Then in the face of all that, you drew that Exhibit 60 out there?— A. Yes^ sir.
"Q. And had those men sign it, Mr. Hj^er and Mr. Mapes? — A. They signed it.
"Q. You drew a like affidavit for D. W. Knapp to sign, aid you not, of like tenor? —
A. Yes, sir.
"Q. Reciting, in substance, the very same facts that you recited in Exhibit 60? —
A. Yes, sir.
"Q. And no other facts except those you recited in Exhibit 60? — A. I don't know.
"Q. Did you ever see that affidavit of Mr. Knapp? — A. I drew it.
**Q, Did you see it after it had been signed by nim? — A. Yes, sir.
"Q. Where did you see it? — ^A. In the city.
"Q. Where in the city? — A. I think in my office.
"Q. Was it delivered to you? — A. It was.
"Q. W'hat did you do with it? — A. Well, I suppose I took it to Mr. Smith; if I
didn't, I have got it.
"Q. I wish you would look for it and see whether you have it; and if you have,
produce it here at thd next time to which this commission adjourns to-day. — A. All
right."
Mr. Smith. That was while Mr. Nichols was on the stand. He was asked to produce
it. Is there an>i;hing in that to show he was attempting to suppress it? Is there
anything showing that my counsel was suppressing it? Is there anything showing
that I suppressed it, when he says I will produce it? Turn to page 334. The 23d was
on Saturday, the 24th Sunday, and the 25th Monday, and Mt. Nichols goes on the
stand in behalf of the contestee, and the first thing is this by my attorney who they
say suppressed it.
" Q. Since recess have you looked over and found the affidavit of D. W. Knapp? — A.
Yes, sir.
"Q. Is that the affidavit [showing witness Exhibit 62]?— A. YeS, sir.
*'Q. I show you Exhibit 61. Is that the affidavit Judge Adams asked you to look
for? — A. Yes, sir.
"Q. You found it in your office? — A. Yes, sir. .
*'Q. Is that a carbon copy of this affida\nit signed by Mr. Hager and Mr. Mdpes? —
A. Yes, sir.
"Mr. FnANKHAtJSBR. We offer it in evidence.
"(Affidavit reads as follows:)
"'State op Michigan, County of Eaton, ss:
' " D. W. Knapp, being duly sworn, deposes and says that they reside in the township
of Sunfield, E^aton County, State of Michigan; that at the general election held in said
township on the 6th day of November, 1912, J. H. Palmer, D. A. Hager, and F. H.
Bacon acted as inspectors of said election, and that Harry Mapes and D. W. Knapp
acted as clerks of said election; that immediately upon the closing of the polls of saia
46 CLAUDE S. CABNSY VS. JOHN M. C. SMITH.
election said board of election inspectors proceeded to canvass the votes cast at said
election, according to law; that about the hour of 1 o'clock in the morning of the 6th of
November said J. H. Palmer went home and did not return to finish the canvass until
said canvass was nearly completed; that the canvassing of said ballots was done in
public; that during the entire time of counting said ballots the public might have
oeen present if they so desired, but as to whether at all times during said count there
were others present besides said board they are unable to state; that they deny th&t
they had any knowledge of any report that John M. C. Smith had loet the election to
Congress by a small majority or otherwise; that the other members of said board were
not absent from said polling and canvassing place to exceed 30 minutes; that they had
a talk about adjourning the count because of the lateness of the hour, but that they
received information from the prosecuting attorney of said county that they should
proceed with the count until it was completed; these deponents further say that the
result of said canvass was read aloud that any persons who happened to be present
might know the result.
"*D. W. Kkafp.
" * Subscribed and sworn to before me this 16th day of November, A. D. 1912.
" * [seal.] "J. H. Bbra, Notary Public.
"*My commission expires February 28, 1913."*
Mr. Smith. I say from that, gentlemen, that that statement in the brief is too
strong.
Now, there is another little statement on page 6 of the brief that I have already
mentioned, and I will not state it any further; it is in the brief, and is misleading.
This is the statement I object to: ''The record shows conclusively that the soliciting
of votes in this precinct was open and continuous during the whole day.*' I wifl
ask the gentlemen on the other side if that is not a little strong?
Mr. Cari^ey. Well, do you want me to answer the question?
Mr. Smith. Yes.
Mr. (Barney. Well, Mr. Mosier testified it continued throughout the day during
all the time he was there. He was absent about 30 minutes at me noon hour.
Mr. Smith. I will say that is not in the brief.
Mr. Frear. You mean it is not in the record?
Mr. Smith. It is not in the record. That is not a fair construction of his testimony.
He said that instructions were only given, and that was given time and aj;ain to those
who asked for instructions. They make the further statement in the nuddle of that
The Chairman. Suppose we should find that in that third ward of the ciW of Char-
lotte that soliciting votes had continued for, say, two hours at a time. What effect
would that have on the polls?
Mr. SMnn. I think tne strongest that you could put it would be that it mi^t
have affected these six or seven that the evidence shows that the suggestion was
made to after he had sworn there was no one solicited except one person. They have
a right to give instructions, so his testimonv does not fit to the point they desire to
make. I uink the witness, to be fair on all sides, did not understand, blecause the
fair purport of the question and answer is that the suggestion was made to those who
asked for instructions. But if they find it continued lor an hour or two hours I think
my evidence would overcome that, and I do not see how that could possibly happen,
because nobody, as I see it, could say that the testimony fairly showed it. I woula
not like that. I disavow any request of a man to ask a voter at the polls to vote for
me. I disavow it. The record does not show it, and I would not want to favor it,
and I would not want my friends to send in a number of telegrams here — and I hope
they are all my friends, without me, in the presentation of my case — saying I did not
approve of that practice. I would sav that. I am a fair man, and I want to use
everybody right, and I think my friends down there who sent those were misdirected.
Down below on that paf^ he savs the testimony is not specific that the ballot boxes
were locked up at Sunneld. That is on pa^e 6. Tlie testimony is not specific; that
the ballot boxes were locked up, and he cites John Palmer's testimony on page 73
of the record. One of the inspectors, he said, went home and went to bed. He was
one of the Democratic supervisors. He could not hold him there. The board in
Sunfield was all Democratic, but the clerks — he could not control it exactly — w&e
the political friends and advisers of the contestant in this case, and Mr. Palmer asked
for Mr. C/amey and Mr. Soyers, and he said, as the record shows, they voted the
straight Democratic ticket for Mr. Carney. That question was asked, and they did
not answer it.
Mr. Carney. He did answer it.
CLAUDE S. OABNBY VS. JOHN M, C. SMITH. 47
Mr. Smith. He answered it; but the question was asked counsel here, and he did
not give any light in regard to it.
Mr. Carney. I gave light on it.
Mr. Smith. I beg your pardon if you did.
Mr. Carney. Mr. Palmer did not say how he did vote, but Mr. Soyer stated he
voted the straight Democratic ticket and voted for Mr. Carney. You were mistaken
when you said Mr. Palmer said it.
Mr. Smith. I beg your pardon, but I so understood it.
Mr. Fellows. Tae general presumption in Michigan is that a Dempcrat vot^s his
ticket straight.
Mr. Carney. There is the same presumption as to a Republican.
Mr. Frear. This last year, possibly.
Mr. Shields. The general presumption is that if you put a Democrat or Republican
on oath as to what he did at the polls, he will swear that he voted for his party.
Mr. Fellows. The way the Republicans have been voting for Democratic gov-
ernors up there shows they have been splitting up.
The Chairman. This does not throw any light on this matter. Let us confine our-
selves to these charges.
Mr. Smith. On page 6 he says the ballot boxes were locked up. On pages 252-255
there is specific testimony there that the ballot boxes were Icx^ked up, so tnat contra-
dicts the statement in their brief there.
Now, I call the attention of the committee to another statement at the bottom of page
18 of the original contestant's brief:
"Schneider further testified there was no data in the box, unless we used the figures
that were on the rolls of tickets, which we did use in correcting the returns."
That is what the counsel state in their brief. I wish to read a little from Mr.
Schneider's testimony in the record, pages 136 and 137, and see whether that is a fair
statement.
Mr. Shields. The reference to the record as pages 145 to 136 is incorrect, and the
statement begins with the last sentence on page 135 and goes on to page 136. That is
taken verbatim from the testimony, but it is a typographical error, or in the citation.
Mr. Smith. I will call the attention of the committee to those statements in the brief.
Schneider testified there was no data in the box unless we used the figures that were on
the tickets which, we did use in correcting the returns. He refers to the record on
pages 135 and 136, and he states the record is wrong, and I want to call your attention
to the fact that that statement is not in accordance with the testimony.
Mr. Carney. B:ead the last line on page 135 and 136 and see whether it is there or
not, without a word changed.
Mr. Smith. I am quoting the statement in the brief, that he says there is no testi-
mony. Mr. Schneider testified there was no data in that box.
Mr. Carney. Read the last line on pages 135 and 136.
The Chairman. Let Mr. Smith proceed.
Mr. Smith. At the bottom of the page, 136, I read this:
" Q. Now, when that ballot box was brought before your board of county canvassers
by that election board, you opened it? — A. I did.
"Q. Did you find anything in that ballot box besides the ballots?— A. We found
a few scraps of paper, but none of them were the figures from which this report was
corrected.
"Q. The first time I am referring to.— A. No, sir; we didn't find anything; we
took the tickets.
**Q. Was there anything else in the box besides the tickets the first time you
opened the ballot box that you noticed or found? — A. Well, these scraps of paper in
the bottom we didn't molest, didn't look for; we didn't think there was anything
there we wanted to see."
He says that Schneider swore there was no data in the box.
Mr. Fellows. The whole of the testimony must be taken into consideration.
Mr. Frear. I am trying to get Mr. Carney's point clearly. I understand there was
a typographical error on the page.
Mr. Smfth. But he makes the statement there was no data in the box to correct
the returns from. I am quoting his testimony to show that Mr. Schneider swore they
did not look for any data, that there was other things in there; and Mr. Christian, the
man who made it, says he made it on the night of the election when they got through,
and ** I put it in the box, " and he says, " That is the paper I made, and 1 put it in the
box on the night of the election. " There is no contradiction of that testimony^ but I
say Mr. Schneider did not swear there was no data in the box, as counsel says m that
charge, but he says:
48 CLAUDE S. CARNEY VS. JOHN M. C. SMJTtt.
"Was there anyihing else in the box besides the tickets the first time you opened
the box that you noticetl or found? — A. Well, those scraps of paper in the* bottom we
did not moleist. Didn't look for; we didn't think there was anytning there we wanted
to see."
Mr. Shields. Will you read the rest of it? I will read it. It says at the bottom of
page 136:
"Q. Now. when that ballot box was brought before your board of county can-
vassers by that election board, you opened it? — A. I did.
"Q. Did you find anything in that ballot box besides the ballots? — A. We found
a few scraps of paper, but none of them were the figures from which this report was
corrected.
"Q. The first time I am referring to. — A. Xo, sir; we didn't find anything; we
took the tickets.
"Q. Was there anything else in the box besides the tickets the first time you
opened the ballot box that you noticed or found? — A. W^ell, these scraps of paper in
the bottom we didn't molest, didn't look for; we didn't think there was an>'thing
there we wanted to see.
"Q. Did you find any tally sheet or poll book? — A. No, sir.
"Q, Or statement book in that ballot box the first time your board of county
canvassers opened it? — A. No, sir."
I want to say that our quotation in the brief is accurate, but beginning at the bottom,
Mr. Schneider states there was no data, and I am reading from the record. *' There was
no data in the box unless we used the figures on the roll of tickets which we did use
in correcting the returns according to those figures which we found on the back of
each roll. " I want to show the o notation is correct from his testimony.
Mr. Smith. I say it is misleading when he makes the statement that there was no
data there, and Mr. Schneider swore to that and that they did not molest the data in
the box.
The Chairman. Does he claim the data was on this scrap of paper?
Mr. Smith. Yes, sir; the size of foolscap, and he made out a little statement similar
to one vou would make in a bank, and he said he did this from custom and habit to see
what the straight vote was and how it came out, if it corresponded with the tickets
and if they tallied.
The Chairman. That was not the official tally sheet?
Mr. Smith. It was just paper. They are permitted to put all the papers that they
have around there in the box. There is no law regarding it, but it was in there; ft
was one of the papers in the box.
Mr. Frear. Is there any other testimony as to what was found in the box outside
of what Mr. George W. Schneider testified to?
Mr. Smith. Yes, sir. I might as well take it up here now. There are some things
in the brief that will need attention, but I will look that up now. When the board
of county canvassers met down there they saw there were no straight Republican or
Democialic tickets from governor down returned from the second precinct of the second
ward of the city of Battle Creek. They met in a different town, the county seal,
Marshall, some 10 or 11 miles away from Battle Creek. Battle Creek is the largest
city in the county and one of the largest in my district. Now, what thev met there,
Mr. Schneider's testimony is that he knew there was a mistake there. Now, of their
own volition, without interference with either the contenstant or the contestee, they
sent down for the box, just as the law provides, and the inspectors, or the people
having charge of the box- the law does not say they shall summon the inspectors in
the first instance, but I think one or two inspectors came with the bDx that first time
and the other gcnitleman who made that memorandum wa6 sick. Now, then, they
met up there
Mr. Frear. The board of canvassers?
Mr. Smith. Yes. sir; and Mr. Schneider they meet up there is a Democrat: excel-
lent man so far as I know. I know him to be a very representative man, and I know
he is faithful to his crcod. They, of thoir own volition, corrected that return bv
seoiuij some momoradum on the back of the ballots that they rolled up. which sairf:
'Republican, straight, ()(»: Democrat, straidit, 66." Schneider said he knew there
was a mistake. Why? Because the normal vote of that precinct was from 102 back
to 96, which I had received on the Republican side. The normal vote on the Demo-
cratic sidf» from i;(>vernor down was 57. I had only received by the returns 31 votes
out of the whole i)recin(t, where the normal Rei)u}')lican vote was from 96 to 102.
Mr. Frear. The normal Republican vote at this same election?
Mr. Smith. Yes, sir: and the contestant in this case. Mr. Carney, had only received
23, where the normal vote was 57, and so Mr. Schneider said he knew there was a
mistake. The law say.s wo shall send and get the boxes and the custodian shall
CLAUDE S. CAENEY VS. JOHN M. C, SMITH. 4^,
bring the boxes and the key, and if they correct or bring papers in the box and memo-
randa, they shall be corrected and the board shall canvass from the corrected returns.
That was all true, so they corrected it.
Mr. BoBCHERS. Did tlie inspectors correct?
Mr. Smith. Yes, they did, but they did not call the inspectors the first time.
Mr. BoRCHERS. But the county inspectors corrected the returns from this memo^
randa they found in the box?
Mr. Fellows. The inspectors in the ward made the correction the first time, and
the second time this inspector who made this particular memoranda was sick and was
not present.
Mr. Smith. I want to read the law they were acting under. That may guide us a
little. I read from the laws relating to elections in the State of Michigan, compiled
by the secretary of state, page 82, section 239, which was offered in evidence. I
will read it because I want to give all the light to the committee on this subject that
I can.
Tho Ch.\irman. Before you do that, I would like fo ask the point you make is that
the canvass must be made from the returns by the county cleric?
Mr. Smith. Yes.
Mr. Fellows. Unless it is apparent there is an error, and then the error must be
corrected.
Mr. Shields. From what?
Mr. Fellows. The inspectors themselves may be required to correct it.
Mr. Shields. What data can they use at that point to make the correction?
Mr. Smith. I am going to read the statute, and then it will show itself. You do
not have to take anyone's word for it. I want to call your attention to the fact that
they were the returns compiled by the county clerk. You will note in their testi-
mony there was a good deal of exception ana complaint made to the fact that the
county clerk opened the returns sent in from the various precincts of the county.
He does that for the purpose of tabulating the vote and having it ready for the board
of canvassers . That is primarily the purpose . It is done in every county in the State,
except, as Mr. Carney says, his county does not follow that practice, and yet he is
complaining because those returns are sent to the county clerk. They are sent in a
big envelop, larger than that book^ directed to the county clerk. The mailman
bnngs it in to the county clerk. It is in his mail, and he takes his opener and opens
that envelop, and it proves to be the returns, and I want the committee to notice
he files it in his office, and when the record in filed in the county clerk's office it is a
public record. That was a very heavy election. There never nas been in mv rec-
coUection and the recollection of my friends — and they know more about it than I do —
an election as heavy as that, as complicated, or when the returns came in as slow.
A good many of them did not get through until the next morning some time, but on
the morning of the 8th they were all down there in the office of the county clerk or
the judge probate. The judge probate must preserve his inviolate. No one has
access to those except th^ board of county canvassers, and there are two sets sent
up from the precinct, and the board of county canvassers must canvass the votes
compiled in the county clerk's office, where they are a public record.
Mr. Frbar. Let me a^ a (question here in response to a question asked a few
moments ago. There is nothing in the statute tnat requires those returns to be
q)ened by me full board?
Mr. Smith. No.
Mr. Carney. That must be determined by the statute.
Mr. Frear. There is nothing that indicates it in the statute itself.
Mr. Smfth. The county clerk must file it in his office. They held the election
on the 5th and on the the 6th they completed their returns, some as late as noon,
and on the 7th day the returns were all in the county clerk's office.
Now, then, counsel says the report down there was that I carried Eaton County
by 1,027, and the record shows that Mr. Nichols, who was county clerk at that time,
stated that fact, but Mr. Robinson, the chairman of the Democratic conmiittee, went
in there at noon with Mr. Soyers, one of the attorneys, or a gentleman who was very
active in this case for my friend, the contestee, and at noon on the 7th day he looked
over and tabulated those returns, and I had 912. That is the return of the precincts
of my county. That was the return made by the board of county canvassers, and
that return has never been changed in that county one vote from that time; and if
Mr. Carney claims the benefits of the newspaper reports, he is entitled to them, but
those reports never try an election case.
I know in one county it was claimed the vote for me was something like 238, and
x)ne paper said, **Why are you claiming 238 votes? You only have 70." That ap-
21023—13 1
50 CLAUDS S. CABNEY VS. JOHN M. C. SAOTH.
peared in the Courier. I was not responsible for the claims they were making. I am
no prophet or a son of a prophet. I made no predictions. I would sooner quit this
contest than have my good name blemished or my character tarnished b^r the net that
I had done an improper thin^, and I do not ask my friends to do anything improper,
and, genUemen of this committee, it will be my sole effort to represent that district to
the best of my ability, and when I quit it my children will never have an apology to
•make for me, and if in their childish simplicity they walked across the courthouse
corridor, in the presence of the Democratic county committee, with a little tabulated
statement in their hands, for that is the proof, it is a matter that no one can magnify
into importance. I can not see why they think there is imi>ortance in such a small
matter as that, and my daughter was sitting in the county clerk's office, and he says I
did not put either one on the stand. I ask him now what I would have put them on
the stand for? I want to stand on the justice of my claim. The voters of my distiict
have elected me by a majority honestly cast and honestly counted, and there is nothing
tending to show a vote that a man was not entitled to cast that he did not cast, and if
you give me the benefit of that rule those two precincts can not be considered.
The contestant simply wants them because the boards of the precincts there did
not follow out the strict letter of the Michigan statute, and I claim you are not bound —
and that is by high authority, and I do not have to quote it to you — you are not bound
by the statutes or decisions of any court. I will read just one little item here: "But
if it is true that courts must sometimes be compelled to confess themselves powerless
in the face of rigid rules and precise technicalities, such is not the unhappy state of
this House of Representatives. There is no power lodged anywhere which limits
this discussion and authority, except the Constitution and its sense of right. Prejudice
may color judgment and want of wisdom may make those decrees unsound, but it is
never without power to do what is right within its wisdom." (2d Hines, sec. 1122.)
f read from Payne on Elections: "All our election laws must necessarily be adminis-
tered by men who are not familiar with the construction of statutes, anS all we have
a right to expect is good faith in their acts and a substantial compliance with the
xequirements of the law."
Mr. Crisp. You started out awhile ago by stating that in one precinct the normal
Republican vote was from 90 to 102 and the Democratic normal vote about 50, and
that the election managers did not accept the memoranda. I would like to know how
they finally declared that vote.
Mr. Smith. I am very much obliged to you for calling my attention to it. I over-
looked it.
Mr. Crisp. You started out on that, but did not finish.
Mr. Smith. Well, I started to read this law also — ^the declared vote under the law. I
got on the fact that those returns had to be compiled in the county clerk's office, and
tnere is no venality in the fact that the returns were taken to another office for the
purpose of computing them. Now, we will go back to the precinct where they cor-
rected them — the precinct in Battle Creek. I will read the law which tells how they
shall canvass the vote. I read from the Election Laws of the State of Michigan (sec.
8665, on p. 82), as follows:
(239) Sec. 3665. (Sec. 4.) The said board shall then proceed without delay to
canvass the return of votes cast for all candidates for office voted for and all other
questions voted on at said election, according to the returns filed in the office of the
county clerk by the several boards of election inspectors of the various voting precincts
in the county, and the returns or tally sheets filed with the board of canvassers by the
central counting board in counties where a central counting board is provided for
counting the ballots cast in said county or any part thereof in lieu of their being
counted by the election inspectors of the voting districts. If it shall be found, upon
the convening of said board of canvassers that the returns from any of the boards of
election inspectors of the several election districts, or the returns of such central count-
ing board are missing, incomplete, or incorrect, or for any other reason it is found
necessary, then said board of county canvassers shall have power to adjourn from day
to day until said returns shall have been procured or corrected. Said board of canvass-
ers are hereby empowered to summon the person or persons havine the boxes containing
the ballots cast at such election and the keys ana seals of said boxes, or having such
returns or the poll books or tallv sheets used and made at such elections, to bring said
boxes, keys, seals, returns, poll books, and tally sheets before said board and said board
of canvassers are authorized to open said boxes and take therefrom any books or papers
bearing upon the count and return of the election inspectors of such election districts
or the returns of such central counting board, but they shall not remove or mark the
ballots therein. Said board of canvassers may summon such election inspectors, or
central counting board, before them, and require them to make correct returns in case,
in its judgment, after examining such returns, poll books, or tally sheets, the returns
CLAUDE S, CABNEY VS. JOHN M. 0. SMITH. 51
already made are incorrect or incomplete, and they shall can vase the votes from the
corrected returns. When the examination of such papers is completed the same shall
be returned to the ballot boxes or delivered to the persons entitled by law to the same,
and the boxes shall be locked and sealed and delivered to the legal custodians thereof.
When said canvass shall have been finished, the said board of county canvassers shall
prepare a statement setting forth their findings in the premises, and giving in detail
the number of ballots cast for each candidate and the result of the votes cast on all other
questions voted on at said election. They shall certify thereto, under their hands, and
the seal of the circuit court of the county. It shall also be the duty of said board to
declare the result of the election for county officers and members of the legislature,
when the county alone constitutes one or more senatorial or representative districts,
and to publish said result and a statement of votes cast, within thirty days after said
election is held, in at least two newspapers printed and circulating in said county.**
Mr. Smith. In the first instance, they must bring up the ballot boxes and the keys
and the \'arious paraphernalia and the board itself can correct them if the)r can do it
from memoranda found in the boxes without taking out the ballots. In this case the
ballots were rolled up and tied with a string. If the ballots had been loose you can
see that a different rule ought to apply than if they were roUed up and memoranda
made on the back; but the latter was the situation in this case, and thus they could
correctly and accurately and with certainty determine what the vote was inside.
Then in justice no one was hurt when they took that memoranda. And the board
itself can correct them if they can do so from memoranda in the boxes without taking
out the ballots. In this case the ballots were rolled up and tied with a string. If the
ballots had been loose they might have counted them, but the rule ought to apply
just the same where they are rolled up. If they are rolled up there should be a mem-
orandum in the box by which they could correctly, accurately, and with certainty
determine what the vote was. The law says that they can summon in the inspectors,
who shall make corrections, if in their judgment the returns are incorrect or incom-
plete, and they shall canvass the votes rrom the corrected returns.
" When the examination of such papers is completed the same shall be returned to
the ballot boxes or delivered to the persons entitled by law to the same, and the boxes
shall be locked and sealed and delivered to the l^l custodians thereof. When said
canvaes shall have been finished, the said board of county convassers shall prepare a
statement setting forth their findings in the premises, and giving in detail the number
of ballots cast for each candidate and the result of the votes cast on all other questions
voted on at said election."
Now, the contestant says this precinct should be thrown out because John Nichols
was there assisting in the election; but John Nichols says that he never asked any
man to vote for me and that he was not around the polls
Mr. Carney (interposing). You don't mean that the testimony shows that?
Mr. Smith. Ves, sir.
Mr. Carney. No; you are mistaken about that.
Mr. Smith. Well, if I am mistaken I am glad to have the correction, but I will show
you that, that he never asked a man to vote for me. That is what I say. He was
interested in my election, but he was not around the polls that night. After the polls
were closed he went home and went to bed.
The statute continues (reading):
*'They shall certify thereto, under their hands, and the seal of the circuit court of
the county. It shall also be the duty of said board to declare the result of the election
for county officers and members of the legislature, when the county alone constitutes
one or more senatorial or representative districts, and to publish said result and a
statement of votes cast, within 30 days after said election is held, in at least two
newspapers printed and circulated in said county."
Now, that board was composed of three men. I am not saying that they should
not be partisan, but I will trus' my l^^gal rightf? to a Democrat just as quick as I would
to a Republican. That is all right, but my friends stand here and say that that rock-
ribbed State of Michigan gives tliem no show in an election. I will only say in rela-
tion to that that I think the Democrats have gotten their share. Anyhow, the Repub-
licans have not. Roosevelt carried my district in good shape, and they carried the
State by 3,000. They have a governor up there who was elected over both Repub-
licans and Progressives. He is representing that State at the present time. There
are two Republican senators representing this district, together with one Democrat
and one Pix)gressive, and out of their numbers in the legislature there were only two
Republicans, foiur Democrats, and one Progressive. How many more do you want?
In my own county they had a reasonable representation. They always get a good
representation, and they have got it now. Tney had two memoers on the board of
canvassers in Eaton County, where we are reading now, and they had the chairman.
52 CLAUDE S. OARNEY VS. JOHN M. G. SMITH.
They have had the sheriff, who served two terms just finished, a splendid man, a
Democrat, liked by everybody, and prior to that Mr. Hill, who sent a telegram here,
was sheriff of the county. Mr. Ells was a Democratic sheriff of the county. Mr. Huber
and Mr. Jones have been treasurer of a village down Uiere on the Democratic ticket.
They eet their fair representation. They do not say that they are foreclosed or shut
out; tney just make tnat statement for buncombe.
Mr. Elder. The way I look at it I would not feel that their argument there cut
any figure with me. I do not blame you for answering it, since they have made the
statement.
Mr. Smith. Thank you, Mr. Elder. I am ^lad that you agree with me on that.
Mr. French. Right at that point Judge Crisp asked a question — and I think the
other members of the committee understood it — ^with reference to why those ballots
were not included in the vote of the precinct at first and counted by the board of
canvassers. Why was that?
Mr. Smith. Simply because they were forgotten, left out by mistake when the
vote was tabulatea.
Mr. French. They rejjresented, then, votes for Democrats and Republicans, and
somehow the precinct officials in totaling up left them out of consideration entirely.
Mr. Smith. Yes, sir.
Mr. French. And then, when the returns c*ame to the board of canvaasers, they
noticed these votes had been left out, and they took the straight Republican votes
and added them to Mr. Smith's total, and they took the straight Democratic votes
and added them to Mr. Carney's total. How much did that increase the vote?
The Chairman. It increased Mr. Smith's vote 66 and Mr. Carney's vote 38.
Mr. French. And the contention is that they should have been counted by the
local officials before the count was over, and that the memorandum from which this
correction was made was not, as a matter of fact, a memorandum which should have
been used, by law.
Mr. Frear. I do not quite understand the statute that you have read here, and
that I read myself. It says "any papers" may be considered by these canvasseis.
That is something unusual in my experience. Does that contemplate a paper of
this kind?
Mr. Smith. Oh, no; it just happened to be put in there. The law says: ''Take
therefrom any books or papers bearing upon the count and returns of the election
inspectors of such election districts or the returns of such central counting board,
but tliey shall not remove or mark the ballots therein."
Mr. Shields. My opinion is that that means this tally book that should have been
in there.
Mr. Carney. It means any book or paper that should be in there.
Mr. Smith. Now, these 6 or 7 ballots that were put in by Mr. Nichols were put
in in Uie presence of the Democratic challenger, and he had nothing to do with
the ballot except to receive it and deposit it in the box and call out the name of the
voter. Now, after the board of canvassers over in Calhoun County had signed tne
returns, the contestant went over there the next day and announced to them that
they had exceeded their authority. Then I received word that he had been there
and was notified to come over. I went over there, and after looking at the statute
the chairman says in his testimony he was satisfied a mistake had been made. Then
I said that under the statute the only thing to do was to send for the board of election
inspectors, as the law provides in the second clause. He says in his brief that they
changed the returns at my personal request, but all that I asked them to do was to
send for the inspectors.
The inspectors came up there and they were given so many minutes to correct
those returns — the inspectors. The rule was laid down that nobody should say a
word in discussion of it or ai^ument of it. He said: "We donH want to hear any
aivuments; open the box." They opened the box and then he said to the inspectCNTs,
"Can you correct those returns witiiout touching those ballots? The ballots must
not be taken out of the box; is there anything in there that you can correct? " The
gentleman that made this memorandum said, "Yes, I made a memorandum that
night, and if it is in there I can correct them." Then he said, "Don't touch the
ballots," and he reached down in there and said, "Here is a memorandum," which
was given to this gentleman, and he went into the other room and in about 20 minutes
or more came back, and with nothing to aid them but the tally sheet, which was
informal and incomplete and had only 31 votes on it and they were split ones — they
made up their report.
Mr. Elder. Did they count the ballots afterwards?
Mr. Smith. No; we offered to count them, but they refused.
CLAUDE 8. CABNBT VS. JOHN M. C. SMITH. 53
Mr. Crisp. Wasn't there some testimony as to a discrepancy in the size of this paper?
Mr. SiffrrH. That night the city clerk at this polling place had brought in a sheet
with all the names of candidates down on it for convenience. There were two clerks
there keeping track of it, and they used that large sheet there . That is the one that the
judge was examining the witness about. That was the tally sheet that they had used
on that night. Our election law does not provide for any formal tally sheet. The law
requires that a tally must be kept, but it does not say what the tally sheet shall consist
of. There is no tally sheet furnished bv law, but the clerk brought one down there with
the names on it, and they figured on tliat awhile — that is a different one from the one
that this banker had making his plans on. There were two papers, and when they got
it corrected the chairman and the rest of them signed a unanmious report. I do not
know whether Igot 23 or 13 or 7 or 8, or whether I got any over there.
Mr. Fbear. Were these separate ballots eventually counted for both candidates?
Mr. SifriH. Yes, there is no question but what the ballots were all finally accounted
for.
Mr. Frear. The board eventually put them in the count?
Mr. Smith. Yes.
Mr. Fellows. In order that you may get that clear, the inspectors from that pre-
cinct made an amended retium, which will be found on page 149 of the record. Wnen
they came down the second time — at the first time Mr. Fred, who made this memoran-
dum and put it in the ballot box, was not present — the second time they came down
they made a further certificate, which is found on page 150.
Mr. Elder. Had the contestant refused to have the ballots counted?
Mr. Smith. Yes; owing to the condition of the box. It was at the second opening
of the box that the inspectors came, but I was not permitted to say a word. I aid not
have to say anything, out I saw the box at that time, and this trunk, or something or
other, had fallen down on it and smashed in the lid a little bit. Between the first
time and the second time they had never asked to have the ballots counted. The
ballot box shows that it had been dented in on the top. The question was not asked
whether that box was in the same dented condition at first, but wnat harm would that do
anyhow? Why should that prevent anyone from counting the ballots? There was an
effort made up there to get me to file a petition for a recount. Down here that seems
not to be the law. It is submitted that I could not do that, and I can see from the
amount of legal lore that I have — it has been a good while since I was at the wheel — ^but
I could read that.
Mr. Frear. What was the difference in the vote by reason of the addition of these
ballots?
Mr. SMrrH. A gain of 28 for me.
Now, I want to say in regard to this Winsor ballot, which they ask to have thrown
out under the statute, that that does not agree with my sense of right and justice.
The ballot in this case was handed to the voter by the proper election ofladal; it had
the voter's initials on it; it was initialed at the time it was handed to him to vote; it
was initialed when he went into the booth to mark his ballot; it was initialed when he
voted it, when the inspector of elections put it into the ballot box. It was initialed
all the way throi^h, but the inspector that put it in the box, contrary to law, tore off
the comer and also tore off the part upon which it was initialed. But the voter had
nothing to do with that. The ballot was initialed, and our supreme court has been
on both sides of that question, and in the Horning case (94 Mich.), I think it is, they
said that the place on the ballot where the initials should be placed is directory only.
That is according to common sense, and would agree with a man's sense of right. But
they say that that decision was under a different statute. I do not know if we can say
that that was the condition of the law at that time, but the sense of justice, the sense
of right is there just the same. But since the supreme court has taken two sides on
that question — and I cjuote a decision here from Justice McGrath, which would allow
them to do what was right in that case, and I think that is the tnie rule of law before
this committee — since the supreme court has decided on both sides of the question,
and practically overniled themselves, they are not going to be outraged if this com-
mittee comply with the rules of law and count them good honest ballots.
The Chairman. Which way did they decide the last time?
Mr. Smfth. The last time they threw them out. But that was purely on the ground
of the statute, and you are not, of course, boimd to follow the statute.
Mr. Frear. In the last case where the decision was rendered did the facts in that
case show that the initials had been placed upon the ballot?
Mr. Smfth. Yes.
Mr. Frear. But in the wrong comer.
Mr. Smith. Yes.
54 CLAUDE S. CARNEY V& JOHN M. C. SMITH.
Mr. Shields. Wlien they were counted there was no initial on the ballot, while in
the former case the initials were on the ballots when they were counted.
The Chaibman. I want to ask you about the precinct where they permitted two
outsiders to move the ballot box and empty the ballots out on a table and count them.
Why was that?
Mr. Smith. Because the ballot box became full, and they had no other box that
they could use, so they emptied the box and proceeded to count these ballots. In
some of the cities in Michigan it is provided that they may have a 2 o'clock count,
although that was not the case here. My record shows that they counted those ballots
20 feet away from where the voters entered the polls. Of course when they came in
they might stop and look on. In that case every vote was counted that night before
the polls closed. There is no question but that every man entitled to vote had voted
and that the vote was correctly counted.
The Chaibiian. Does the record show how many votes were coimted by those two
parties?
Mr. Smith. Yes, but not as they were voted.
The Chairman. How many were counted?
Mr. Shields. There were 99 counted after the polls were opened, and after the
count started, at 2 o'clock, and I think 140 after that.
Mr. Crisp. Is that customary?
Mr. Smith. Yes, except in the city of Detroit, where they have a 2 o'clock count
by law.
The Chairman. Now, here are these two men with this ballot box. They throw
these ballots out on the table — ^two disinterested partiea— and proceed to count thnn.
There are people passing by who could see that count, and after they had seen the
count they could go out on the street and tell what it was. What do you say about
that destroying the secrecv of the ballot?
Mr. Frear. That would be true in the city where they have the 2 o'clock count,
too, would it not?
The Chairman. No; in the city they protect the secrecy of the count.
Mr. Shields. The challenger for the Democratic Party and the challenger for the
Republican Party were sworn in to act as clerks, and only one member of ^le board
counted the ballots. Mr. Huber was the only man that examined the baUots.
The Chairman. Wbs the board present at the time?
Mr. Shields. Yes; all of the board was present.
Mr. Frear. You say all the members of the board were present?
Mr. Shields. They were all in the polling place.
Mr. Shfth. The question is, How were they to meet the emergency, the ballot box
being full?
Mr. Shields. They could have laid the ballots on the table and counted them
afterwards.
Mr. Frear. What would be the difference?
Mr. Shields. That some one might give out the vote before the polls closed.
Mr. SMrrH. The proof is that there was absolutely no information given out. That
was the result of the investigation. The case of Williams v. Sutton, Fifty-seventh
Congress, I think, is a similar one. In that case they commenced to count the vote
before the polls closed, which was not held to bar the vote. Now, I am not con>
tending that that was the best thing to do, but this was an emeigencv. They talked
it over among themselves, Democrats and Republicans, and Mr. Ells, a gentleman
who had lived there 20 years, a very prominent man, Democratic candidate for reg^
ister of deeds, said that so far as he was concerned they could count the b^ots, and
they agreed there that no objection should be made to it. The Democrats and
Republicans were both entitled to have that count, and the proof is positive that
nobody was there that did not belong there.
Mr. Frear. What is the law in r^ard to counting all ballots when they are taken
from the ballot box?
Mr. Fellows. The ballots have to be counted immediately when taken from the
ballot box, and the count must be continuous.
Mr. Frear. It occurs to me that there are two phases of the proposition that have
to be met.
Mr. (jArney. This particular form has to be gone through before they can count at
all, and it has to be a consecutive count and announcement made immediately upon
completion.
Mr. Frear. The purpose is to prevent, I suppose, manipulation of the ballots.
Mr. Fellows. There is no provision in the law which permits a 2 o'clock count.
The fact that they do permit it in the city of Detroit would ifldicate that the 2 o'clock
CLAUDE S. OAKNTEY VS. JOHK M. C. SMITH. 55
count is not againet public policy, as long as there is no piovisioii for their prDcuring
another ballot box.
The Chairman. Can you tell us what the law is that provides for a 2 o'clock count
in the city of Detroit?
Mr. Fellows. It is not in the general election law. It is a special act.
Mr. French. Let me ask you a question there, Mr. Smith. Admitting now that
this ballot box was full, was mere any provision of the law by which some other alter-
native could have been produced? Is there any provision for another ballot box?
Mr. Garnet. Our supreme court has decided tnat you can use two ballot boxes,
but there is no provision in the law covering that.
Mr. French. I suppose these election officials out in that precinct were not familiar
with the supreme court decision, but they did have the law before them. I want to
know whether or not there is any provision in the law that would have directed them
to substitute another box, inst3ad of following the procedure that they did follow.
Mr. Shields. The law simply provides that they shall provide satisfactory boxes
for voting.
Mr. French. Who shall do that?
Mr. Shields. The board of inspectors of elections.
Mr. Fellows. They had provided a satisfactory box but it was not large enough.
The Chairman. If it was not large enough it was not satisfactory. It could not be
satisfactory if it would not hold tlie ballots.
Mr. Fellows. There was another precinct in which a similar situation arose, and m
that case they went out and got a snoe box and voted in that. Mr. Carney cairied
the precinct.
Mr. Carney. Don't you think they would be justified in getting another ballot box
if that was not laiire enough?
Mr. French. Wnat I am trying to get at is whether or not there was a way under
the statute to meet the situation after the box was full.
Mr. Carney. The statute is plain enough that they should provide another box.
They should have had it when they started. I do not think tne vital thing is that
one box was filled up. I would not object at all if when the emergency arose Uiey
had provided some other means of caring for those ballots. Our objection is that the
way they did it, conducting the count in that way, was absolutely illegal. They
should have protected the ballots.
Mr. Frbar. Your contention is that they did not use the best method of procedure,
Mr. Carney. They used the very worst procedure.
Mr. Shields. Paragraph 173 of Exhibit 67, which you have in your hand, is the
statute you are asking aoout, also paragraph 145.
Mr. French. Mr. Fellows has said that in another precinct where the results were
reversed, favorable to Mr. Carney, the judges used a shoe box. What kind of a shoe
IxMc was it, wood?
Mr. Fellows. Yes.
Mr. French. Are your election boxes up there made of wood?
Mr. Carney. Wood, tin, anything.
Mr. Fellows. The ballot box in this precinct was a tin can with a roller that they
rolled the ballots in. It was a patent box.
Mr. French. In this precinct where the election officials had failed to anticipate
such a large vote, and where they furnished a wooden box afterwards, did they do
that in compliance with a provision of the law, or did they do it simply to meet the
situation?
Mr. Carney. No; they did it to meet the situation.
Mr. Smith. The law says that the ballot box shall have a lock and seal on it, which
this box did not have.
Mr. French. There was no lock or seal on this shoe box?
Mr. Smh-h. No.
Mr. Carney. There was no opening to it at all. Instead of being locked the lid
was nailed down.
Mr. Smith. There is no statute in terms prohibiting the adjournment of the board
after closing the polls or before completing the canvas. All statutes must be reason-
ably construed. It is not impossible that some exigency might arise requiring the
cessation of the canvass for a brief period during the canvass of the vote. If the
election laws as to adjournment are held to be so far mandatory that when an adjourn-
ment is had it renders the poll void, then we call attention to the township of Texas,
where contestant received a plurality of 11 votes, and where the board adjourned for
supper after the polls closed at 5 o'clock (record, p. 495). Also the firet ward of the
city of Albion in Calhoun County, where contestant received a plurality of 27 votes
(record p. 469), where the board adjourned at 10.30 o'clock p. m. and went home,
56 OLAXJDE S. GABNEY VS. JOHN M. C. SMITH.
and reconvened the next day after election at 9 o'clock and filled in the retuma
(record, p. 469), in which a discrepancy appears between the votee of some of the
candidates as written in and set down in figures (record, p. 472). Also the second ward
of Albion, where contestant received a plurality of 47 votes (record, p. 478>, where an
adjournment wan had at 11 p. m. and tne boolcs were taken to the office oi one of the
inspectors and kept there until the next morning at 11 o'clock, when they reconvened
and made up their matters in the office of Mr. Laborteau. Also the fourth ward of
Albion, where contestant received a plurality of 75 votes (record, p. 486). where a
similar adjournment was had until 9 a. m. the next morning, when the hoard recon>
vened, opened the ballot box, took out the books, and completed their statement.
There are otJier discrepancies that T could cite if I had the time, but those are all
that my limited time will permit. I thank the committee very kindly for their
attention.
The Chairman. We will give you all the time you want. We want the facte in
the case.
Mr. Smith. I will hand them to my associate, then.
Mr. French. I would like. Mr. Chairman, right in connection with the election
board furnishing another ballot box, to have inserted the section of the Miciiican
laws which provides for each township having a ballot box and defining the kind of
box. I would like to have tiiat section inserted.
Mr. Shields. It is section 144, page 45, of the pampnlet, which is an exhibit in
the case.
^ Mr. French. I would like to have that printed right at this point.
The following is the section referred to:
*'144. There shall be provided and kept by the township clerk in each township,
at the expense of siich township, and in esuch ward or voting precinct of any city by
the city clerk or recorder, at the expense of the city, one or more suitable ballot boxes,
with lock and key, which ballot dox shall have an oi)ening througb the lid of the
proper size to admit a single closed ballot, through whicn each ballot received shall
ne passed into the box. He shall also furnish a township or ward election seal, which
shall contain the name of the township or ward and the words '* election seal" around
the margin thereof, and such other words or device thereon as the township board
of the township or common council of the city may prescribe."
The Chairman. We will now adjourn, gentlemen, to meet at 10 o'clock to-morrow
morning.
Committee on Elections No. 1,
House of Kepresentatives,
Tutsday, December p, 191S.
The committee met at 10 o'clock a. m., Hon. J. D. Post (chairman), presiding.
The Chairman. Proceed, gentlemen.
Mr. Smith. 1 ask that my counsel be heard at this time.
STATEICBNT OF MB. OBANT FELLOWS, ATTOBNEY FOB COH-
TESTEE.
Mr. Fellows: If the committee please, 1 think it is a matter of indifference to the
contestee as to whether this committee follows the Michigan statutes and the Michigan
decisions or not, or as to whether the committee views the provisions of the election
laws of the State of Michigan as mandatory or as directory purely. I understand
that it was uiged that the statutes of the State of Michigan and the construction ot
the Michigan courts thereOn should be absolutely and literally followed by this com-
mittee, and that Congress in the past had not deviated from State construction of
State statutes. I 'understand that a State election statute performs a twofold func-
tion: It is the machinery used by the electors of the State to select the officers neces-
sary to carry on and manage the State government.
It is also the machinery used bv the electors for the purpose of selecting their Rep-
resentatives in Congress. Therefore a State statute performs the dual function of
discharging a State duty and at the same time discharging a national duty. Its con-
struction as applied to the election of State officers, I apprehend, is to be controlled
by the State courts. Its construction as applied to the election of Federal officers
must of necessity rest with the Federal authority. The House has the constitutional
£ower and prerogative of being the sole judge of the qualifications of its own Members.
That is a power that is not controverted here, and can not be controverted, but the
thing that I want to impress on you first is this: That with an election statute which
OLATTDE S. CABNBY VS. JOHN M. C. SMITH. 57
ferforms the dual function of regulation of a State duty as well as a national duty, in
tate elections its construction is for the State courts, and in the dischaige of its
functions as to national officers the construction of it must fall to the Federal authority,
although the Federal officers passing upon that statute may, if it appeals to them,
follow the construction placed upon it by the State court. I am not saying that this
committee has not the right to follow the construction placed upon the Michigan
statute by the Michigan court if it appeals to them as the correct construction to be
placed thereon. As I said before, I think it is a matter of indifference to the con-
testee as to whether the statutes are literally construed or not, whether you follow
the Michigan holdings or the precedents of this committee.
The Chairiian. Would not your client be in a very bad situation if we followed
the ruling of the Michigan Supreme Court in the five precincts
Mr. Fellows (inter|^)sing). And did not follow it in the other precincts? Yes.
But if you follow it in those precincts there are other precincts which Mr. Carney
carried with a much larger majority and if you do that it will leave Mr. Smith a major-
ity of something like 400 instead of 116. 1 am neither asking nor su^esting that you
follow their contention solely as to the precincts which they claim it ought to apply
to, because when we come to apply the rule to those precincts it must also be applied
to the other precincts, which they decline to do.
The Chairman. What are those precincts?
Mr. Fellows. I will take them up as I go along.
The Chairman. All right; I do not want to interrupt you.
Mr. Fellows. And I will apply the rule to each separate precinct. Now, the
township of Climax is made something of in the contestant's notice of contest. It *
was insisted that he should have credited to him something like 30 more votes than
were credited to him in the returns.
Th^ Chairman. You have agreed upon that, have you not?
Mr. Fellows. Yes, sir. But I want to call the attention of the committee to the
situation in Climax so that you will see how that applies to Battle Creek because the
same situation arose in the precinct of Climax that arose in the precinct of Battle
Creek.
Now, there are returned to the county canvassing board three different papers;
that is, they are returned to the board either directly or through the county clerk.
Those three papers are: First, the poll book or poll sheet which shows the names and
therefore the number of men who voted. There is also returned a statement of the
votes, which is the return of the local board of inspectors and which returns the number
of votes given to each person, and the number cast for each office. There is also
returned
The Chairman. Have you gentlemen a form of the tally sheets for the benefit of
the committee?
Mr. Fellows. I understand they are with the Clerk of the House.
Mr. Smith. They were all introduced, against the objection that they could not be
taken away, but the clerk consented to have them sent here upon my assurance that
I would have them returned when the committee was through with them.
The Chairman. Go ahead, Mr. Fellows.
Mr. Fellows. Now, in addition to those two papers which I have mentioned there
is also returned the tally book or tally sheet. In some elections the tally sheet is not
returned. For example, it is not returned in a local-option election, so that there is
nothing before the board that canvasses that vote to show whether a mistake has been
made or not, while in other elections the tally book is returned.
I will not take up the Battle Creek precinct now, because what was true in Climax
was true in Battle Creek The poll book which was returned showed that a certain
number of men hsui voted in that district. The tally sheet which was returned
showed the number of split votes. The return proper, or what we call the " statement
of the vote," showed that a considerable less number were returned than the poll
book showed had been cast, and so in the t/>wn8hip of Climax we simply said; " What-
ever the box shows, take a recount of it. The board of inspectors are here, and they
have the ballot box here, and we concede that there shall be a recount." And upon
that recount Mr. Carney gained, T think, 11 votes. I will take up Battle Creek later,
but that shows the attitude of the contestee to the contestant. When the question of
Battle Creek was taken up, it was urged that there was no power in the statute which
would permit the correction of a palpable mistake. You can see that the mistake
was apparent upon the face of the papers which were filed with the clerk, or filed
with the board, because here was the poll book showing the names and the number
of men who actually voted; here was the statement of the returns showing that the
number was shy something like 250. In Climax it was considerably less than that,
from governor down. The votes that were returned were from 114 down, so that it
58 CUkUDE S. CABKET VS. JOHN M. C. SMITH.
was appajrent that a mistake had been made. They had the tally sheet before Iben,
which showed that there were returned only split votes, so that there was a palpable
error, a palpable mistake, before the board of county canvaasen when ihey opened
those returns.
I shall take up the question of Battle Creek later, but in Climax, as I say, we simi^y
said, ''A^hatever the oallots show.'' That is exactly what we offered to do in Battle
Creek, and that was declined. It was not only insisted that we could not recount the
votes, but that the board was absolutely powerless to correct a palpable error.
Now, the next precinct that is urged is the third precinct of Chariotte. As I remem-
ber it, the third precinct of the city of C harlotte is not mentioned in the notice of con-
test. I shall refer to that again when we come to the Question of whether \^insor
should be considered here, and if it is considered what otner nile should be applied.
Mr. Shiblds. Pardon me for interrupting, but the third ward of Chark>tle is spe-
cifically set forth in the notice of contest. We might as well settle that now as at any
other time.
Mr. Frear. As I understand it, and as the committee, I think, undezBtand it, the
only difference between you on that point is as to what was specifically alleged in
the third ward of Charlotte.
Mr. Felxows. I will take that up later.
Mr. Frear. I just suggest that to save time.
Ml. Shields. All right.
Mr. Carney. We r^ yesterday from paragraph 4 on pages 7 and 8, Mr. FeUows.
Mr. Fellows. Yes.
Mr. Carney. And again on page 9, paragrapii 7. Without leadii^ the whole pant*
graph, after alleging certain agreements, it states:
''Various oi the inspectors and other officers of said election precincts in said county
of Eaton and particularly in the second and third precincts m the city of Charlotte,
in said county of Eaton, on said election day, did urge upon divers and sundry voters
in said precincts and in said two precincts last above mentioned tne aforesaid ag^ree-
ment, and by such means and other unlawful means exerted on said election day viKm
divers and sundry voters in said various election precincts and within the railing
within the voting place wrongfully, persuasive, ana fraudulent means were used for
and on behalf of t£e said John M. C. Smith, candidate on the Republican ticket in
said county of Eaton."
And this issue was met directly in the answer that Mr. Fellows drew up, found on
page 24 of the record. In paragraph 4 it is stated:
"' And he denies that any of the board of election inspectors in any of the voting
precincts mentioned in this paragraph "
I mieht say that this refers to the first, second, third, and fourth wards of the city
of (harlotte. Then the language of the answer goes on to say:
"Did at any time during this election enter the booths and assist in marking the
boUots or in any way uige a voter to vote upon any particular ticket for any officer
on the ballot.''
So the issue was fairly and squarely met, and the all^;ations are specific.
Mr. Fellows. That seventh paragraph is the paragraph which cnaiges that there
was a fraudulent conspiracy.
The Chairman. What page is that?
Mr. Fellows. That is on page 9. It charges a conspiracy between the Progressive
Party and the Republican Party that R^ublican docrtines should not be preached
in that county and that the Progressives snould not run any county ticket; that there
was a fraudulent combination between the two. I think that so far as that feature of
tlie case here is concerned, it went into the discard toother with the charge that
there was a conspiracy between Came^r and Din^ley, which grew out of the fact that
Carney let Din^iey have his automobile in which to ride around the district cam-
paiening. I thmk both contestant and contestee put those chaiges into the waste
basket. But whatever there is in general lansuage charging that thins to have
occurred in all the voting precincts and was a aragnet, and no specific cnai]^ was
made with reference to this particular matter here. But I apprehend that this com-
mittee, in the exercise of its power, has the right to permit an amendment, or rather,
(\)ngre6s has that right. There must be some authority somewhere, and the propriety
of permitting that I shall discuss later.
Now, let us see. There was only one man who testified with reference to this sub-
i'ect for the contestant and that was Mr. Mosier, on pages 46 and 47. He commenced,
think, a little earlier. 1 will read commencing on page 45. This is in his direct
examination by Judge Adams:
CLAtTDE S. CARNEY V6. JOHN M. G. SMITH. 59
"Q. Whetlier more than one of the inspectors in any one instance went in when
a voter had applied for instructions as to the manner of voting his ballot? — ^A. Yes,
sir.
"Q. You say they did; sometimes two of them went in? — A. Two every time.
**Q. Two inspectors? — ^A. Yes, sir.
*'Q. Did you hear any susgestions made there that day to any voters who applied
for instructions in marking their ballots, made as to who the voters would vote for? —
A. I did.
''Q. What did you hear? — A. I heard Mr. Smith's name mentioned.
"Q. Who mentioned it? — ^A. Mr. Dunning.
"Q. When he was in the booth? — A. Yes, sir.
"Q. With the voters?— A. Yes, sir.
'' Q. A suggestion was made by Mr. Dunning, who was then inspector of election,
to the voter to vote for John M. u. Smith; is that correct? — A. That is correct.
''Q. Was that the John M. C. Smith who was then a candidate on the Republican
ticket for Representative in Con^fress? — ^A. Yes, sir.
" Q. Did you hear any suggestion made there to any votera who applied for instruc-
tions on that day for any other candidate? — ^A. I did not myself."
" Q. Did any controversy occur there between you as challenger for the Democratic
Party that day with reference to the manner in which Lhe inspectors were carry-
ing on that business? — ^A. We had some trouble there.
Q. What controversy did you have? — ^A. I didn't think it was right.
" Q. What did you say? — ^A. I said it should be stopped.
"Q. What had to be stopped? — A. Soliciting.
"Q. Soliciting what?--A. Votes.
"Q. Who did you have that controversy with? — ^A. Mr. Dunnine.
*' Q. What did he say? — ^A. He said, ' What are you going to do sS>out it? '
"Q. Do you know what Mr. Dunning's politics were on that day? — ^A. He was
a Republican.
"Q. Could you see how those men who were instructed by the inspector or to
whom suggestjons were made that tiiey vote for John M. C. Smith for Congressman
in those booths on that day voted? — A. No, sir; I could not.
"Q. What business are you engaged in? — A. I don't know hardly.
"Q. Are you retired? — A. Yes, sir; tired.
"Q. WTiat did you say, retired or tired?— A. Tired."
Now, upon cross-examination it became apparent from his own testimony that that
occurred just once. At the bottom of the page is the following testimony:
" Q. Can you give any names? — ^A. No, sir; I can't give the names.
" Q. ^ ho was the one that you said you had trouble over? — A. I couldn't tell you
what his name was.
"Q. You don't know what his name was? — A. No, sir; I couldn't say what his
name was.
"Q. Mr. Mosier, you didn't see anybody mark a ballot for a voter, did you? —
A. No, sir; I couldn't say that I did.
. " Q. Now, Mr. Mosier, did you hear either one of those inspectors ask any voter to
vote for John M. C. Smith, in that language? — A. I did; one.
"Q. Who was that?— A. Mr. Dunning.
"Q. Do you remember the man's name? — A. No, sir; I do not.
" Q. Can you give the language he used t^ this man? — ^A . He says, ' J . M . C . ' ; that is all .
'* Q. He just mentioned the name? — ^A. Yes, sir.
" Q. Was this about the language he used,' How about John M. C. Smith? ' — ^A. Yes,
sir; something like that.
"Q. That is all he said?— A. Yes, sir.
"Q. That is the thing you took offense at? — A. I didn't think it was right.
''Q. That man was tne one that caused the trouble when he said, 'How about
John M. C. Smith? — A. That is the time I got a little mad.
*^ Q. Do you remember that man's name? — A. No, sir; I can not think of his name.
" Q. Do you remember the time that ocairred — was it before you went to dinner or
after. — A. That was after dinner."
Now, it was taken up by Judge Adams on redirect examination and in general lan-
guage an attempt was maae to show that that occurred at other times.
Tne Chairman. Does it not show right below that that he did the same thing?
^ir. Fellgwh. Well, he attempts to give that as hiij testimony. I think the com-
mittee would have the right to construe his testimony, after he was called back for
redirect examination, to mean that this occurred more than once, but the weight of
the testimony
The Chairman (interposing). Does he not say just below there:
60 CLAUDE S. OABKEY VS. JOHN M. C. SMITH.
*'Q. State whether or not sugpreetiuns were made to all when you were present that
dav. — A. Do you mean those who atiked for af«iatance?
*Q. Yee, sir. — A. All thoee, I thinly: yes, sir."
Mr. Frllowr. Ye«, nr. I say that tne committee, if they take this version alone,
upon direct examination, can so construe it, but I take his testimony on redirect
^examination in connection with his testimony on cross-examination to mean that that
thing occurred but once.
Tfie Chairman. WTiat answer do you defme as meaning one person?
Mr. Fellow». Well, on cross-examination, the portion f just read, beginning:
*'Q. Who wRri the one that you said you had trouble over?-— A. I couldn't tell you
what his name was."
And so on down to the end of the cross-examination.
Now, my construction of that laugus^e is that it onlv occurred once and he became
angry. As I say, taking his testimony in its entirety, tne committee would be justified
in construing it to mean that this occurred but once.
Mr. Shields. May I ask you whence you were reading a while ago?
Mr. Fellows. 1 commenced on page 45, and the last! read was on top of page 46.
Mr. Shields. May I be permitted to read the redirect examination by Mr. Adams?
It is noT long [reading]:
**Q. You say, Mr. M osier, that you heard one; what do vou mean by that— one
who? — A. I don't remember of saying that; I meant one of the inspectors.
" Q. Did you hear any suggestion made to any of these others who applied for instruc-
tions that day? — A. The same thing.
*'Q. How many different times did you hear these suggestions given to voters? — A.
I couldn't tell you how many there were that asked for assistance, I coiddn't give yotx
the number.
**Q. State whether or not stiggestions were made to all when you were present that
dav. — A. Do you mean thwe who asked for assistance?
^*Q. Yes, sir.— A. All those, I think; yes, sir."
Mr. Fellows. The testimony is that there were only two men who applied for
assistance that day. That Ls uncontradicteil so far as that is concerned.
The Chairman. In ward 3 you say that only two asked for assistance?
Mr. Fellows. Yes, sir.
Mr. Crisp. I thought it was five or six.
Mr. Fellows. I want to call vour attention to a distinction which the contestant
has not made. They have not oifferentiated between assistance and instruction. A
f voter comes in and asks: **How do you work this thing?" if it is a voting machine; or,
'How do you vote this ballot?" if it is a ballot
The Chairman (interposing). Were there any voting machines in this election?
Mr. Fellows. There were some in some distrlots, but there is no question involving
them in this case. In some districts the board is bound under the law to give instruc-
tions. If a man comes in and wants to know how to vote the ticket he is oound to be
given instruction, and there is no requirement that the elector shall be sworn in order to
receive instruction. If he requires assistance to mark his ballot, unless the defect is
apparent he must be sworn. If he can not read the English language so that he can
not understand his ballot he must be sworn . All the wav through the contestant's case
there has not been the slightest inclination to differentiate between instruction and
assistance.
The Chairman. If a man were blind he would have to have both assistance and
instruction.
Mr. Carney. Will you cive us the section of the law on that point?
Mr. Fellows. I think Mr. Smith cited it, but I will give it to you again later.
Now, the testimony has been cited upon this subject, commencing at pi«pe 10 <rf the
brief for contestee, Mr. Mosier's testimony being nrst taken up there, and I shidl ask
the committee to consider it. We called everybody that was present there except
Mr. Mosier. They called the Democratic challenger and we called everybody else
that was present at that election and that testimony developed this state of facts:
There was an old gentleman there, something past 50 years old
Mr. Frear. You say you called everyone who was present at that election. Of
couise you mean, I suppose, that you called every official who was present at the
election?
Mr. Fellows. Yen, sir. We called the Republican challenger and every member
of the board of inspectors and all the clerks; one of them, I am sure, was a Democrat.
Now, the testimony is so overwhelming that while I can not say that the uncontra-
dicted testimony shows this, yet the absolute weight of the testimony does show that
this was what occurred and tliis was all that occurred: An old gentleman came in
there and he was partially blind, I think; at any rate he was a very old man. In fact,
CLAUDE S. CABinBY VS. JOHN M. 0. SMITH. 61
the two YoteiB who were asedBted — as I remember the testimony, now. though I will
not be sure that this is exactly ru^t — were both over 80 years of age . This old gentle-
man said he wanted to vote the Democratic ticket and K»r some Republicans; he said
he wanted to vote for Mr. Storis for sheriff. Mr. Stons was the Republican candidate
for sheriff.
This voter was a man living in a little town of probably 5,000 people and I have no
doubt that these inspectors cnew practically every man in that ward, had visited
them and knew what was in their minds. Now, he said he wanted to vote for Mr.
Storrs and another Republican. If there was anybody besides Mr. Storrs that the
Democrats of Charlotte wanted to split their ballots on, John >I. C. Smith was the
man, because he had lived there all his life and they knew him. He said there was
one other Republican he wanted to vote for and the inspector said eiUier ''How
about John M. C." or "How about John M. C. Smith." Now, the weight of the tes-
timony taken shows that that was about what was done and that that was about all that
was done. It is urged that that ward in its entirety should be thrown out and the
McQuade ca^e is cited as the authority for throwing out that ward. I am not goin^ to
take the time to read it, but the McQuade case arose in the county of Wayne ana in
the township of Ecorse. In that case unauthorized people were behind the booth
all day and something like 75 men had their ballots marked for them by unauthorized
men. I think the testimony showed that there were something like 10 different men
who came in behind the nol to help the voters and fix the ballots for them. This
was soon after the Australian ballot system came into effect in Michigan. There was
no authority at that time to call in these outsiders to fix the ballots for the voters.
This committee can see just exactly what that would lead to if that were permitted.
A vote could be purchased and delivered by the man going into the booth and seeing
the ballot marked. It was so patent upon its face that the election in the township
of Ecorse was an absolute fraud that the Australian ballot system, which had been
introduced for the purpose of purifying elections, was declarea to be likely to become
a farce if such things were to continue.
That is said to apply to the election situation in the city of Charlotte, where the
name of the man he wanted to vote for had slipped the mind of this old gentleman
and the inspector, who knew undoubtedly who he wanted to vote for, asked him,
''How about John M. C? '' That is all that occurred and the McQuade case is cited
as a parallel case, when as a matter of ^t something like 75 men were assisted in
voting and something like 10 unauthorized men were behind the railing during the
day.
Now, I want to pass next to the township of Sunfield. In that township the elec-
tion machinery was entirely in the hands of the opposition to Mr. Smith and to the
Republican ticket. There were three inspectors who were Democrats and one in-
spector who was a National Progressive. One of the clerks was a Republican. Under
our law the board of inspectors consists of four members and four only, one of them
being the township clerk, who acts as inspector and also as a clerk. Then in addition
they add another clerk so that there may be two clerks besides the three inspectors.
Now, these three inspectors, besides the clerks, perform these functions: One man
does the initialiii^ of tne ballots, another hands out the ballots, and the third man
takes the ballot and puts it in the box. The fourth man, who is also the clerk, puts
the name of the man down on the poll book, together with the number of the ballot
nven him. The other clerk does me same thing, because two poll books are kept.
There is no authority in the law for more than four inspectors.
Something is said in the brief, I think, and possibly something in the notice of
contest, about the inspector whose duty it was to hand out the bsillots not being in
sight of the rest of the board. That occurs everywhere. In other words, we will
say that this table here is the booth; the voter comes in on my left side, comes down
here [incUcating] and the inspector hands him a ballot. He goes into the booth here
{indicating], marks his ballot, passes through to the other side, and hands it to the
inspector on the other side, who places it in the ballot box. The box and the ballots
which are bein^ initialed, together with the clerks who are keeping the poll books,
are all on one side, while the inspector who hands out the ballots is on the other side.
Mr. Shields. Do you say that is the general practice throughout the State?
Mr. FsLLOWB. Yes, sir.
Mr. Shields. I take issue with you on that. I never saw it or heard of it in any
precinct in the State of Michigan, except in this instance.
"hii. Fellows. Well, the testimony shows it all the way through.
Mr. Carney. In only two places.
Mr. Fellows. Down where I live we use the voting machine and have done so for
something like 15 or 20 years.
Mr. Shields. Not every town manufactures voting machines.
62 CLAUDE S. GA&ITBY VS. JOHN H. C. SMUH.
Mr. Fellows. Down in my county we do not use the booth system except for cer>
tain elections where machines can not be used, and in those cases the anangement has
always been as I have stated.
Now, let us see about this man Sayre. Mr. Sayre, to b^n with, was a Democrat.
The other members of that board were also Democratic. The oath was adminifftered
to him and it is by reason of that oath that he is called an instructor. I inidst that
even upon the most favorable view that can be taken of the testimony of the contest^
ant, Mr. Sayre was called an instructor by reason of the oath he took. He performed
absolutely no function other than that ci an inspector, but he took the oath of an
instructor. That oath is found on pi^ 68 of the record, and it is ^m that oath that
he is called an instructor. I will read it:
"State of Michigan, County of Eaton ^ as:
"I do solemnly swear that I will support the Constitution of the United States and
the constitution of this State, ard that I will faithfully discharge the duties of the
office of instructor of this election, held on Tuesday, the 5th day of November, 1912.*'
Now. let us see just exactly how that situation arose. Mr. ralmer, it is apparent,
wantea to be out on the streets that day. Mr. Palmer was the supervisor, a man 63
years old, a very excellent man indeed, but it was apparent that he wanted to be away
from the polls more or less, and so they had been in the habit
The Chairman (interposing). What did he want to be away from the polls for if he
was the supervisor?
Mr. Fellows. Well, the farmers were coining in then and he dealt in farm prod-
uce and he wanted to buy what they had.
Mr. Carney. That is not in the record, is it? You are just stating that yourself?
Mr. Fellows. No, sir; 1 am Bhowin^; why he wanted to be away.
The Chairman. What is the supervisor?
Mr. Fellows. He is the taxing officer and he is the chairman of the board of in-
spectors.
Mr. Shields. He is really the executive officer of the township?
Mr. Fellows. Yes, sir.
Mr. Frear. Wliat was his politics?
Mr. Fellows. He was a Democrat.
Mr. Frear. So that you do not make any contention that he was trying to alfect
the election in any way?
Mr. Fellows. No, sir; not in the slightest. 1 want to say here and now that those
men are of the highest integrity and character.
It has been said that all the election machinery in the State of Michigan has been
in the hands of the Republicans. That is not true. In my county there has never
been a time when out board has not been Democratic; in my town, a little country
town of some 2,500 inhabitants, we have had a Democratic supervisor for 20 years.
Mr. Shields. That is not in this district.
Mr. Fellows. No, sir; but my town runs up to the east line of Mr. Smith's con-
gressional district.
Mr. Shields. And your district is Democratic, which may have something to do
.with it.
Mr. Fellows. Well, it is just Democratic.
Mr. Shields. But it is Democratic?
Mr. Fellows. Well, it is just.
Mr. Elder. W^ell, all districts that are Democratic are just. [Laughter.^
Mr. Fellows. 1 am not going to quarrel with any member of this committee.
Mr. Borchers. Is it a fact that where Republicans are in the majority — that is,
where they have control of the county organization or township organization— they
also have control of the elections?
Mr. P'ellows. Well, this is the situation with us: Mr. Shields's county is a Demo-
cratic county, I think, so far as the board of supervisors is concerned, and in the
spring they oegin to get out because, I imagine, they think their opportunities for
tiimming us are better in the spring than in the fall. But in my county the super-
visors have been Democrats for years and they have been men of the hignest tyx>e.
Mr. Carney. It has been a good many years since Eaton County was ever accused
of anything of that kind.
Mr. Fellows. Well, I think there is scarcely a board there of which some members
are not Democrats.
Mr. Carney. Name a board in Eaton County, in any district
Mr. Fellows. Well, let us take the one which you have got to have thrown out in
order to get a seat in Congress
Mr. Carney. Are you UJking in the record?
CLAUDE S. CABKEY VS. JOHN M. C. SMITH* 63
Mr. Fellows. Yes; I am talking ineide the record. Outside of Mr. Mapes ever>'
member of the board was a Democrat. Mr. Mapee was a Bull Mooser.
Now, I want to read the testimony of Mr. Palmer. As I say, the oath was adminis-
tered to Mr. Sayer. Hiat oath is on pa^ 68. After these various oaths had been
read Judge Adams took up the examination, following the certificate on page 69. I
read from Palmer's direct examination:
'^Q. You w^e at that election as an inspector and remained on that day how long,
Mr. Palmer? — A. I stayed there until about 12 o'clock at nieht.
'*Q. You were there from the time the polls opened until 12 o'clock at night con-
tinuously?— ^A. No, sir; there were times I stepped out; it seemed we had one man to
spare
"Q. (Interrupting.) What do you mean by that? — A. Well, there was nothing for
Mr. Hager to do when I was taking the tickets and putting them in the box, so when I
wanted to step out for anv reason ne would take the tickets and relieve me, and if he
wanted to st^p out I would take the tickets and put them in the box and relieve him.
"Q. So one inspector handed out the tickets? — A. Mr. Bacon, the justice of peace,
marked the comer of the ballots and handed them to Mr. Sayer and he was in front of
the booth passing those tickets out to the voters, and as the voters came through the
booth I took the tickets from them and deposited them in the box.
"Q. Mr. Sayer was the instructor? — A. Yes, sir.
"Q. So that you had three inspectors at that election and an instructor besides the
clerk? — ^A. Yes, sir; we had two clerks.
"Q. WTio did vou say was the clerk of that township at that time? — A. H. H. Ma{>es.
**Q. So Mr. Mapes did not act as inspector, he was a clerk there to that election
board? — A. Yes, sir.
"Q. Well, now, as I understand it, you acted as an inspector and Dennis A. Hager
acted as an inspector? — A. Yes, sir.
"Q. And Frank H. Bacon acted as an inspector. Did anybody else act as an
inspector? — ^A. I don't think so.
**Q. So you had then three inspectors who acted — three men who acted as inspect-
orB, I will put it? — A. Mr. Bacon handed them out to Mr. Saver.
**Q. Mr. Sayer was not an inspector but an instructor? — A. Yes, sir.
**Q. He was sworn in as an instructor? — A. Yes, sir.
"Q. And yet he handled the ballots? — A. Yes, sir.
"Q. Wliat did Albert Sayer do there with those ballots; just explain that? — A. He
would take 25 at a time from Justice Bacon — "
Now, that is the law. The man who initials the ballots must keep 25 ahead on the
table of the insj>ector who hands them out. The answer continues:
"He would take 25 at a time from Justice Bacon and go out in front of the booth
where the voters entered in the gate, between the front gate and the booth, and he
would pass the tickets.
"Q. Then the voter would go into the booth perhaps and mark his ballot? — A.
Yes, sir.
"Q. And then what was done with the ballot? — A. The voter would enter into the
booth on Mr. Sayer 's side of the booth and would come out on our side, and I would
take the ballot and deposit it in the box.
"Q. How many booths did you have there that day? — A. Four or five.
**Q. Mr. Sayer, then, in passing the ballots to the voters was not in sight of the
other members of the boarcf, was ne? — A. No.
**Q. In other words, the booths were between Mr. Sayer, when he handed those
ballots to the voters, between those voters and yourself and Mr. Bacon? — A. Yes, sir.
" Q. And Uiose booths were so high and so long that a view of yourself and Mr. Bacon
was cut off from Mr. Sayer when Mr. Sayer passed these ballots to the voters?
Mr. Maynard. I object to that as leading.
"Q. Is that true or not? — A. Yes, sir; that is true.
"Q. Well, when you went out at any time or times that day, when you did leave the
voting place, who took your place? — A. Mr. Hager.
"Q. When you were there what did Mr. Hacer do?— A. Well, Mr. Hager part of the
time would step out on the street, and part of the time he would sit around and talk.
**Q. WTien you were performing the duties you say vou performed, Mr. Bacon also
being there, Mr. Hager didn't do anything, did he?— A. No, sir.
"Q. Was Mr. Saver, when he passed out these ballots to the voters, within or without
the railing? — A. He was within the railing."
Now, on page 75 is the testimony of the same witness under cross-examination by Mr ,»
Frankhauser.
64 CLAUDE S. CARNEY VS, JOHN M. C. SMITH.
" Croae-examination by Mr. Frankhausbr:
"Q. You had been election inspector at a good many previous electionB? — ^A.
Y'es. sir.
*' Q. You are superviaor of the township of Sunfield and have been for some time? —
A. Yes. sir.
" Q. Your township is normally quite strongly Republican?
"Mr. Adams. I object to that as irrelevant ana immaterial and too indefinite.
"A. It is considered so.
"Q. Even at the last election it went Republican?
"Mr. Adams. We object to that as irrelevant and inmiaterial and not the beet
evidence.
"A. I think the report shows it went Republican.
*' Q. Do you remember how many votes Mr. Carney received there?
"Mr. Adams. We object to that as irrelevant and immaterial and not the best
evidence.
"A. I do not ; no, sir.
"Q. Now, as a member of that board— you have been elected supervisor on the
Democratic ticket in that township? — ^A. Yes, sir.
" Q. Every time for a number of years? — A. Yes, sir.
"Q. Now, this inspector, Mr. Bacon, was a Democrat? — A. Ye8,sir.'
"Q. He died very soon after the election? — Yes, sir.
" Q. The fact was that he was in very poor health at that time? — ^Yes, sir.
" Q. That is why you pro]X)6ed he should go home and you would take his place? —
A. Yes, sir.
"Q. Mr. Sayre — is he also a Democrat? — ^A. I think so.
" Q. And supported the Democrat ticket? — ^A. I think he is a Democrat?
"Q. Mr. Bacon was a Democrat and supported the Democrat ticket? — ^A. I don't
know how they voted?
"Q. Just what you know from your observation among men? — ^A. He was a Demo-
crat.
"Q. A majority of the board of inspectors were Democrats? — ^A. Yes, sir.
"Q. Mr. Mapes — he was what is called a third party mail, a Bull Mooser? — ^A. I
think so.
"Q. As far as you were concerned, Mr. Palmer, your actions there were in every
regard in favor of an honest election? — A. Yes, sir.
"' Q. I ask you whether Mr. Carney got credit for every vote that was cast for him,
as far as you know ?
"Mr. Adams. I object to that as irrelevant and immaterial.
"A. As far as I know, he did.
" Q. And John M. C. Smith got credit for what was cast for him, as far as you know? —
A. Yes, sir.
'^ Q. As far as you know there was nothing occurred there that affected the result of
the election for Member of Congress?
"Mr. Adams. I object to that as incompetent, irrelevant, and immaterial.
"A. No, sir.
" Q. Did you swear in Mr. Sayre because you supposed you had a right to swear in
such an officer?
"Mr. Adams. I object to that as irrelevant and immaterial.
"A. Yes, sir.
" Q. You had done that at previous elections?
"Mr. Adams. We object to that as incompetent and inmiaterial.
"A. Yes, sir.
' ' Q. And you did it to facilitate and help the election along; that was your intent and
and piu7X)se?
"Mr. Adams. We object to that as irrelevant and immaterial.
"A. Yes, sir."
And then they go on to the question of adjournment.
Now, let us take up Mr. Sayer on page 433. I will read the direct examination, so
that it ma^ be before the committee:
"Direct examination by Mr. Maynard:
"Q. Where do you reside? — A. In the township of Sunfield, Eaton County, Mich.
"Q. Were you present at the general election held in the township of Sunfield
on the 5th day of November, 1912? — ^A. Yes, sir.
"Q. Did you officiate upon that election board at that election? — A. Yes. sir.
"Q. How did you come to serve on the board? — ^A. Well^ I was there wnen they
opened up and they named me; elected me as one of the inspectors, or instructor^
thpy call It.
"Q. That was done by the vote of the bystanders?— A. Yes, sir."
CLAUDE S. CABNEY VS. JOHN M. C. SMITH. 65
Tliat is the provision with reference to the 8t»lection of an in^jiector.
*'Q. Thosc^ surrounding the poll« at the opening?- A. Yes, sir.
"Q. Now, was there any official oath administered to you?- -A. Yes, sir.
''Q. Administered to you alone, or were the otliers sworn at the same time? — A. I
think thev were all sworn at the same time.
'*Q. When you say all sworn at the same lime, wlio do you mean? — A. The rest
of the board.
'*Q. WTio were they; who was the suj)tMvisor?--A. J. H. Palmer.
*'Q. Was he sworn at the same time you were? A. I think so.
*'Q. Who were the other members of the board? A. D. W. Knapp, Dennis A.
Hager, Mr. Bacon, and the two gatekecjHTs, Mr. Slaytcr and Mr. Gilbert, 1 think;
I am not sure.
*'Q. J. II. Palmer was the 8uj)ervis')r of the townshii)?- -A. Yes, sir.
"Q. You spoke of Mr. Bacon; w^hat otlire did lu' hold? -A. Justice of the peace.
*'Q. He was justice of the peace of the township at that time?— A. Yes, sir.
"Q. Mr. Hager, what office did he hold? — A. I think he was a justice of the peace,
too; he was one of the members of the board, I know.
"Q. When you took the official oath of office, did you stand up with these men you
have mentioned?— A. Yes, sir.
"Q. Who administered the oath?— A. Well, now, 1 couldn't say whether Mr.
Palmer or Mr. Bacon; one or the other.
**Q. Did you commence your services there on that board in the morning? —
A. Yes, sir.
*'Q. What did you do?— A. I handed out the ballots.
*'Q, Were the ballots initialed? — A. Yes, sir.
"Q. Do you remember who initialed the ballots?- A. I am not sure, but I Uiink
Mr. Bacon did.
**Q. When they were initialed, who were they handed to? — A. They were handed
over to me.
**Q. What kind of a situation did you have there in the polls?— A. Well, the
voting booths were along here, and I was on one side and the board was on the other.
"Q. Did you have a table? — A. Yes, sir.
'*Q. To lay your ballots on? — A. Yes, sir.
**Q. Did you have a chair there?- -A. A table and a chair; yes, sir.
**Q. Did you deliver a ballot to each voter as they were called off that day? —
A. Yes, sir.
"Q. Did you go in the booths with any vot<;r? — A. I didn't go into the booth,
I went to tlie door to show them, but I didn't tell them how to vote Oj anytJiing of
tliat kind.
"Q. Did you mark anyone's ballot for them? — A. No, sir; one or two persons
called me up to the door and asked me about it and I told them where to mark their
ballots.
**Q. Did you stand there to see the ballot was marked?— A. No, sir; 1 didn't see
anyone mark tlieir ballot.
"Q. Witne.<«, did you solicit any person to vote for an> particular candidate for
anv office there that day? — ^A. No. sir; I did not.
'Q. How long did you remain there at the polls? -A. From early in the morning
until 12 o'clock and until 5 o'clock.
**Q. You remained in attendance during the entire day, did you? — A. Yes, sir.
"Q. And you delivered all the ballots that were voted? — A. Every one; yes, sir.
"Q. Wliat are vour politics? — A. I am a Democrat."
I tJiink I heard tliat expression long ago, coming from David Bennett Hill. (Con-
tinuing reading:)
"Q. Did you support tlie Democratic ticket there at that election? — A. Yes, sir.
"Q. Witness, were >ou in any way interested in the election of John M. C. Smith
as a Member of Congress at that election? — A. No, sir.
"Q. T will ask you tliis question, but you need not answer it unless you want to:
Now, did you support John M. C. Smith for the office of Representative in ('ongreas? "
The Chairman. I do not think you need to read all that. I think we understand
the situation. As I understand it, without any autliority of law these inspectors
swore in Mr. Sayer as an alleged instructor and he stayed by tlie polls from the opening
of the polls until 12 o'clock noon, then they adjourned one nour for dinner, after
which time he returned to the polling place and stayed there until they closed in the
evening, receiving the ballots from the inspector who initialed them and handing them
to the voters, and after they had voted he received tlie ballots and put them in the
box.
21023—13 6
66 CLAUDE S. CABNEY VS. JOHN M. C. SMITH.
Mr. Fellows. No. sir— -
Mr. Elder (interposing). He did not put them in the box.
Mr. F'kllows. Another inspector diet tliat. In oUier words, he was solely an
inflr)e('U)r and not an instructor.
The ('hairman. 1 would like to hear you on the legal question involved in the
case of McCall v. Kirbv.
Mr. Fellows. All right, sir. I want to call your attention to one further fact in
Sayer's testimony. He testified that he voted for Mr. Carney, and the question was
asked here by one of tiie members of the committee —
The Chairman' (interposing). Now, Mr. Fellows, just one moment.
Mr. Fellows. Yes, sir.
The Chairman. As I understand the contention on the other side, they do not
claim that any fraud existed?
Mr. Fellows. No, sir.
Tne Chairman. But they do claim that the vote in this nrecinct should be cast
out because of tlie fact that there was an opiwrtunity for fraud?
Mr. Fellows. Yes, sir. That is based on the fact that an alleged unauthorized
person was behind the railing.
The Chairman. And the Supreme Court of Michigan says that under those circum-
stances the vote of that precinct should be thrown out.
Mr. Fellows. I want to call your attention to our statute, as long as the question of
tlie difference between instructing and assisting has come up, found at page 57 of
Exhibit 67. being the election laws of Michigan, paragraph 163:
"When an elector shall not be challenged or shall have taken the necessary oath op
affirmation he sliall be permitted to vote. On entering the room the inspector having
charge of the ballots shall deliver to him one of them —
Now, that is what Mr. Sayer did. He performed absolutely no function otlier than
the function of an inspector - -
**and the clerk shall enter his name upon the poll list, together with the number of the
ballot given him, and on request sucii inspec tor shall give explanation of the manner
of voting; if deemed necessar3r' by the board an interpreter may be called."
So that the instruction is given without taking any oath.
With reference to assistance, paragraph 169 of the same book says:
*'>\hen an elector shall make oath that he can not read En^Iisli or that because of
physical disability he can not mark his ballot, or when such disability shall be made
manifest to said inspectors, his ballot shall be marked for him in the presence of the
challenger of each political party having a challenger at sudi voting place by an
inspe( tor designated by tJie board for that purpose, which marking sliall be done in
one of the booths.'*
Now, you see, there is a distinction or a difference between instruction and assistance,
and the assistance may be given to him if it is apparent to tlie board that he needs that
assistance, or if it is made apparent by liis oath. The doctrine which is urged here is
that the vote of this precinct sliould be thrown out because there was behind this rail
an unauthorized person who, while not perpetrating actual fraud, was in such a
position tliat if he was a rascal- -I think Judge Grant in nis opinion in the Kirby case
uses tlie word "scoundrel"— if he was a scoundrel he could perpetrate a fraud.
Now, the Kirby case arose under these circumstances, andf this was the case which
was before tlie court of last resort when they determined the questions involved: Mr.
McCall and Mr. Kirbv were rival candidates for tlie ofiice of prosecuting attorney for
Gratiot County, and the result of that election depended upon whether tiie vote of the
township of Elba should be counted. I am not going to ask this committee to read
them, but 1 have here the re<*ord and the briefs in the case of Attorney General ex rel.
McCall 1'. Kirby and they will bear out my statement. If the committee desires to go
into them thev may do so. This Kirby case is a case that has been pretty thoroughly
discussed in Alichigan. Mr. Kirby became a candidate for nomination foi congressman
at large on the Bull Moose ticket, and his opponent. Mr. Hill, used this case against him,
and I think they decided that he was not a fit man to send to Congress, so tiiey nomi-
nated him for attorney general, and he came witliin about 8,000 votes of being elected
attorney general of the State of Michigan.
These are the facts in the case: A man by the name of Kerr lived in Elba Township.
He was a partisan of Mr. Kirby and had been advocating Mr. Kirby *s election m
season and out of season. He was sworn in as instructor and performed the duties of
instructor. The reported case shows that he approached men when they came in and
showed them how to vote for Kirby whether tney asked it or not.
Mr. Shields. The supreme court does not say that.
Mr. FelLows. Well, I say the reported case shows that; the record shows it, and in
the statement of facts they say that the witness stated he showed them how to vote for
Kirby.
CLAUDE S. CARNEY VS. JOHN M. C. SMITH. 67
Mr. Shields. Well, but the supreme court drew a conclusion from that statement
of facts
Mr. Fellows. The record shows that he said to some of them: "If you want to vote
for Julius you put a cross here, and if you want to vote for Kirby you put a cross here."
In other words, he was an unauthorized person within the railing ana was acting; there
as the agent of Kirby. The doctrine laid down in that case was that he being an
unauthorized person, if he was a scoundrel, he was in a position to perpetrate fraud.
The Chairman. That follows the Stillson case. But did not the supreme court in
this case expressly find that Kerr did not influence any voters?
Mr. Fellows. No; I do not think they found that, but he denied it.
The Chairman. I call your attention to a part of tlmt decision where they hold that
the statute is mandatory.
Mr. Fellows. Yes, sir.
The Chairman. Mandatory as to the conduct of elections, and that the appointment
of an instructor was wholly unauthorized.
Mr. Fellows. Yes, sir.
The Chairman. Then they cite the McQuade case in 94 Michigan and the Stillson
case in 108 Michigan, and say:
'*]^ a reference to the latter case, on page 421, it will appear that the interpreter,
an oflncer provided bv the act, was stationed very near to and in plain sight of the
inspectors!', and talkeci with the voters, as they came in, in a foreign inguage. It does
not appear that there was more evidence of fraud in that case than in this. That case
differs from this only in two particulars. First, that the conversation between the
interpreter and the voters was not in the English language, as it was in this; and,
second, that the 'instructor,' as he was called in this case" —
The same as you have in this ward —
''had a better opportunity to secretly influence electors than did the interpreter in
that. If these provisions are mandatory, and we have so held," —
And this is what I want to emphasize —
"they can not be evaded by showing that the parties acted in good faith and that
voters were not influenced. The law was intended to prevent just such transactions
and chances to influence votc^rs."
Now, how does this Sunfield Precinct differ from that case under the finding of the
supreme court?
Air. Fellows. It differs in this: That while the oath was that of an instructor the
function which the man Sayer performed was solely that of an inspector. In the
Kirby case the man who was there did talk with the voters, had the opportunity, and
was an entirely unauthorized person.
Now, in the case at bar, if we regard Sayer as an inspector it will be said that tlie
number of inspectors was more than the lawful number, and therefore tlere was an
unauthorized person behind the railing. The record in the Kirby case shows that
this man Kerr actually did get in his work, because it sliows t! at Mr. Kirby 's vote
was 16 in excess of tie next highest man on the ticket and 43 in excess of t' e lowest
man on the ticket. Now, let us apply t' e doctrine t' at Judge Grant lays down, that
a thing shall not be permitted which in the hands of scoundrels may work fraud.
Tj e Chairman. He says it should not be permitted at all.
Mr. Fellows. He said tl at it will not be allowed to be done, because if it came
into tl e 1 ands of scoundrels fraud might result.
Mr. Shields. Right there. That statement raig' t be just as well questioned now.
Mr. Fellows. T e testimony is that Sayer, Palmer, and Bacon were all Democrats
and Mr. Mapes was a Bull Moose. There were three Democrats and one Bull Moose
on the board of inspectors.
Mr. Carney. How about Witherall and Knapp?
Mr. Fellows. Witherall came in afterwards and he was not sworn at all, and you
challenged the validity of that precinct because he was not sworn. He swore that he
was a member of the Democratic county committee. Now, I say that that being so,
they knowing that this precinct was going to give a Republican majority, because
Pidmer testified to that — ^that it was a Republican town, although he was elected in
the spring — knowing that, I say, this board intentionally violated the law. But
suppose they did?
We do not charge it, l)ecause they are all men of undoubted probity. But suj^se
they intentionally violated the Michigan -statute and the vote is thrown out. T^en
*Pply the doctrine laid" down by the C(mrt in the Kirby case, that the coiut will not
permit that to be done which, even if it be done innocently, is susceptible of being
used with a fraudulent design. Let us say, here is a board solidly Democratic, or a
majority is Democratic. They do those thuigs which under the law would vitiate the
poll. In the language of Judge Grant, they do not consider the question of whether it
68 CLAUDE S. CARNEY VS. JOHN M. C. SMITH.
ifl done innocently or with felonious intent . If it is possible for a felonious intent to
exist, the court will not permit it to be done.
The Chairman. In other words, you think that Judge Grant delivered a bad
decision?
Mr. Fellows. No, sir. I apply his decision in this way: That if you throw out this
precinct you will put it in the hands of a partisan board, if they so desire, to vitiate
a poll intentionally. This is a Republican precinct. Applying the doctrine laid down
by Judge Grant, that a thing will not be permitted wmch may be done innocently
but can be used for a fraudulent purpose, I say here that so far as Sunfield township
is concerned it may be used for a fraudulent purpose, because an adverse board could
vitiate the poll and violate the mandatory provisions of the Michigan statute. In
other words, they could permit somebody to come in there w^ho was an unauthorized
person and remain Vere all day, and by reason of that the poll would be vitiated.
In the Kirby case Mr. Kirby was a large number of votes ahead of his ticket. In the
case at bar Mr. Carney was substantially with his ticket, the difference between about
101 to 105. In other words, Mr. Carney had his party vote in that precinct. Mr.
Sayer did absolutely nothing to influence anybody.
Mr. Frear. What was Mr. Smith's majority?
Mr. Fellows. Seventy.
Mr. Smith. Just the nonnal vote.
Mr. Fellows. A majority of 70. He was maybe 1 vote ahead of his ticket and Mr.
Carney was substantially with his ticket.
Now, let us go a little further. If the presence of an unauthorized person behind
the polls vitiates the poll, then this committee must throw out two precincts of the
city of Al})ion and various precincts of the city of Kalamazoo. I call your attention to
page 477 of the record witli reference to the second ward of the city of Albion.
Mr. Elder. In the Kirby case was the inspector sworn?
Mr. Carney. Yes.
Mr. Fellows. The inspector was sworn.
Mr. Carney. He took the oath as an instnictor.
The Chairman. Is this ward in Albion brought into question in the notice or
answer?
Mr. Fellows. Yes. sir; I understand so.
Mr. Carney. Not on this question.
Mr. Fellows. On page 477 you will see the certificate that is signed by the inspec-
tors, showing that in that ward Mr. Smith received 79 and Mr. Carney 126 votee.
There were also unauthorized men upK>n that board to a certain extent, as an examina-
tion of the record at the next pa&|e will show, about the middle of the page:
'*Q. I show you Exhibit 68; wnatisthat? — A. The poll book of the ^neral election
held on Tuesday, the 5th day of November, A. D. 1912, in the second ward of the city
of Albion, county of Calhoun, State of Michigan.
" Q. Turn to where the officers were sworn and tell how many inspectors were sworn
in there that day; how manv signed the oath of office as inspectorsr^A. Six.
"Q. Six inspectors? — A. Yes, sir; do you wish the balance of them?
"Q. Yes. — A. Charles S. Ix)ud was put on as an extra man for the amount of work
to be done that day. After the voting was all done and the polls closed, because he
had other business or something of that sort, we excused him.
*'Q. He never signed any of the returns? — A. No, sir.
*'Q. How many clerks did you swear there? Did this mail Ix)ud act as inspector
during the whole day until you quit and the polls closed at 5 o'clock? — A. Yes, sir.
"Q. Then you had six inspectors during tne election? — A. I don't know whether
you would call them all inspectors or not.
'' Q. It shows they were sworn as inspectors, does it not? Look at the oaths of office
and read the names of the inspectors as they appear in the book. — A. (Residing:)
'Charles H. Baker, H. C. Nelson, Ott-o Conrad, Charles S. Loud.' How am I going to
know who wrote that ' inspector ' over that word 'clerk?' Somebody erased 'clerk'
and wrote in 'inspector.'
"Q. Read it as the book appears. — A. I will explain here by saying some one has
drawn a line through the word 'clerk' and written in 'inspector.'
" Q. That is on the page of the oath of clerks? — A. Yes, sir; some one has drawn a
pen through that and written in 'inspector.' William Bemer's name is under that.
"Q. WTiat is the next one? — A. I don't know whether I signed that before 'inspec-
tor' was written in there or not.
"Q. You would be an inspector, being the supervisor? — A. Yes, sir. The next is
Frank Laberteaux. The word 'clerk ' has a line drawn through and the word 'inspec-
tor' written over it.
CLAUDE S. CABNEY VS. JOHN M. C. SMITH. 69
**Q. Was Laberteaux an inspector? — A. He was appointed election inspector by the
council.
"Q. He signed this as inspector, as it now appears? — A. Yes, sir; I don't know
whose writing that is nor when it was done.
"Q. Is that all? — A. As it appears on the lx)ok, they are all sworn in as inspectors.
"Q. Yourself and I^aberteaux were actually inspectors? — A. Yes, sir.
''Q. Then more than one man swor6 you all in as a notary public? — A. Yes, sir.
"Q. Read that oath, what you signed. — A. (Reading:)"
Then the oath is read. Now, if the doctrine of the Kirby case applies there, the
second ward of the city of Albion should be excluded.
Mr. Frear. What was the vote there?
Mr. Fellows. Smith 79, Carney 126.
Mr. Frear. Forty-seven majonty for Mr. Carney?
Mr. Fellows. Yes; that would be 47 majority. Referring to Mr. Reed's testimony
on page 486, you will see that in the fourth ward Smith received 74 and Carney 149
votes, a majority of 75. That is the fourth ward, and in order to show the complexion
of that ward I read from page 487:
"Redirect examination by Mr. Frankhauser:
'*Q. I will ask you what your politics are? — A. I am a Democrat.
'*Q. Mr. Culver, was he a Democrat? — A. Yes, sir.
*'Q. Mr. Bemer a Democrat? — A. No; sir.
**Q. What is he? — A. Progressive Republican.
"Q. The city clerk is what? — A. A Democrat.
**Q. Out of the four witnesses we have had from Albion none are at present Repub-
licans as you understand it? — A. Mr. Bemer, I believe, at that time was acting in
the capacity of a Republican.
"Q. You say he is a Progressive now? — A. Yes, sir.
"Q. We have had no witnesses here from Albion to-day who is a Republiean at
the present time? — A. No, sir.
•*'Q. Three of them are Democrats? — A. Yes, sir."
Now, that shows the make-up of that board. Then, turning to Climax
Mr. Frear (interposing). Just a moment. What evidence is there as to any unau-
thorized persons being behind the railing? Is this ward in connection with the other?
Mr. Fellows. Yes, sir.
Mr. Frear. Where there were unauthorized persons behind the railing?
Mr. Fellows. Yes, sir. Well, I may be mistaken about that.
Mr. Frear. That is what I wanted to know. The law required or permitted the
appointment of these inspectors, but afterwards it was changed?
Mr. Shields. ,No, sir; they were acting as tally clerks.
Mr. Frear. I was just trying to get clear in my mind what the situation was out
there.
Mr. Shields. If counsel will show what these men did there, I think you will see
that his contention is wrong.
Mr. Fellows. Mr. Frear asked as to these inspectors, as to their number.
Mr. Frear. No; I asked why you refer to this precinct as compared with the other.
Mr. Fellows. My recollection is that in that precinct they also had six instructors.
Now, that is just my recollection as to that ward.
Mr. Carney. The record does not show it.
Mr. Fellows. I may be mistaken about that. I will not make any claim for it
until I am able to show something a little further.
Now, Mr. Smith has handed me a statement, and I will read a portion of it:
**If an unauthorized pcr.-on acting upon a board, annuls the entire vote, what effect
will it have on the vote in Cambria Township, where contes^tant received a plurality
of 65 votes and where W. D. Payne tallied for two hours without beinsj sworn as an
inspector or clerk? (Re( ord, p. 575. ) Or in the second precinct of the city of Albion,
where contestant received a plurality of 47 vote.« and where there were 5 inspectors
who acted (Record, p. 477), while the charter provides for only 4. (Record, p. 467.)'*
Mr. Borchers. Right there. You said that this man "tallied" for two hours.
Wliat do you mean by "tallied?"
Mr. Fellows. It is urged here in rt^^fard to tlie township of Carmel, I think, that
certain men were unauthorized to tally the vote.
Mr. ('arney. In the middle of the afternoon.
Mr. Fellows. Yes, sir. It was insisted that they were not permitted to do that
tallying in the afternoon, and it is also urged that the men were unauthorized to act
as clerks because the board was full at that time and they had no right to increase the
membership. Now, in the township of Cambria a man was pennitted to go on tally-
ing
70 CLAUDE S. CABNEY VS. JOHN M. C. SMITH.
Mr. B0RCHER8 (interposing). That is what I am asking about. I want to know just
what he did for two hours; do you mean that he opened and tallied the vote?
Mr. Fellows. No, sir: he sits there and tallies the vote
Mr. Carney (interposing). Be fair to him; that is what he wants to get at.
Mr. Fellows. I am fair. T have been fair all through this case. From beginning
to end I have sought no unfair advantage of anyone.
The Chairman. As I understand Mr. Fellows's statement of the facts and the testi-
mony in this record, this party was permitted to come in while they were counting
the votes and help tally. Suppose you were to read off the vote to me: *'John Doe,
for sheriff, 1," and so on, I would keep the tally.
Mr. Borchers. There was no chance to influence votes at that time, was there?
Mr. Fellows. No, sir. I say that after the votes get into the ballot box then the
provisions of the law are directory, but I will take that up later.
The Chairman. What were you reading from?
Mr. Fellows. I am reading from a statement handed to me by Mr. Smith a few
minutes ago, giving the page references to the record.
"And what about Moscow that gave contestant a plurality of 57 votes, where one
of the inspectors incapacitated himself by strong drink? (Record, p. 550.) And the
township of Reading, where they voted in a shoe box (record, p. 576), and where
two inspectors and two challengers went out on the street and collected 3 ballots, in
which precinct contestant received a plurality of 61 votes. The testimony shows
that Mrs. Oldfield folded and handed out ballots to the voters in the seventh precinct
of Kalamazoo city. (Record, p. 489.) This testimony is not denied."
.\lthough Mrs. Marsh denies that she handed out any ballots. That last state-
ment T made is not in the stalcment handed to me by Mr. Smith.
"And in the several precincts of the city of Kalamazoo ladies were permitted witliin
the voting place without credentials of any kind."
Now, turning to the seventh precinct of the city of Kalamazoo, I read from Mr.
Chase's testimony at pa<;e 4SS. In this precinct Mr. Smith received 157 votes and
Mr. Carney received 190, The following is on direct examination by Mr. Maynard:
''Q. WTien did the polls close that day?— A. At 5 o'clock.
"Q. Did you begin counting the ballots immediately? — A. Yes, sir.
"Q. How long wore you engaged in that work? — A. Well, from 5 o'clock until
somewhere in the neighborhood of 2 o'clock the next a. m.; I wouldn't say exactly.
We stopped for supper.
"Q. Where did you have your supper? — A. Right there in the same room whete
the clerks were located.
"Q. IIow many were engaged as inspectors of the election? — A. I am not positive,
but I think eight. There were two door tenders or gatekeepers, but I couldn't say
exactlv; I think eight.
"Q.'^lnall?-A. Yes. sir.
**Q. What part did you take?— A. I received the ballots.
"Q. Did anvone initial the ballots? — A. Yes, sir.
'*Q. All of them? -A. Yw. sir.
"Q. What was the railing surrounding that booth?— .\. The railing that surrounded
the booths?
"Q. Yes; what was it? — A. There was no railing at all. The booths had doore.
We were in a .separate room from whore the booths were.
"Q. You were in the room where they were initialing? — A. No, sir; a separate room.
"Q. Could you sec the booths from whore you were?- A. Not without getting up
from my chair. Some of us could. The man that gave the ballots out could, but
the rest of them could not without getting up off their chairs.
"Q. How did they see them, through the door?- -A. Through the window — ^prac-
tically a door — a half win<low.
"Q. When you gave the ballots to the voter where did he go? — A. I didn't give
the ballots to the voter. The man who did he went in the booth and came out and
delivered it to me.
"Q. By whom was the ballots delivered to the voters? — A. I think W^ E. Geary.
"Q. Did anvone else receive ballots there that dav? — A. Only during meal hours.
"Q. Who did?— A. I couldn't say. We all took turns at the box.
"Q. The whole eight of you? — .V. Yes. sir.
"Q. Was there anybody in that booth that day aside from the inspectors? — A.
Well, yes; the city clerk was in there, and the city attorney was in there two or tJiree
different times.
**Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, there
being no allegation of that kind in the contestee's answer that would warrant the
introduction of anv such testimonv under the issue.
CLAUDE S. CARNEY VS. JOHN M. C. SMITH. 71
"A. (Continuing.) There were several there. I couldn't say just who they were
now, but different ones came into the back door. There is a front and a rear door
to this precinct. I couldn't say now, but several different ones looking after their
candidates there, who had votecl and who had not.
"Q. There was nothing to hinder their coming right in? — A. No, sir;. the doors
were not locked.
"Q. Do you know of anybody aside from the inspectors who handled ballots? —
A. No, sir; I do not; not at that election.
"Q. During the day? — A. Not at that election.
"Q. Do you know a woman named Miss Marsh? — A. Yes, sir.
"Q. Was not she present and didn't she hand out ballots? — A. I may be mis-
taken, but it seems to me she was there in the spring but not in the fall — she was
there in the fall, I think.
**Q. At the November election? — A. Yes, sir; that is when she was there, and
also Mrs, Old held.
*'Q. They were handing out ballots to the voters in that precinct, were they not?
"Mr. ADAitfs. I object to that as leading.
"A. I think — I am not positive — I think that Miss Marsh and Mrs. Oldfield did fold
ballots two or three different times and did hand them out for Mr. (Jeary.
*'Q. Was he an inspector? — A. lie was the man that gave out the ballots; yes, sir.
"Q. You say that you finished counting along about 2 o'clock in the morning? —
A. About that time; yes, sir.
"Q. As near as you can tell? — A. As near as I can tell; yes, sir.
"Q. When did you commence making out the returns, after you commenced count-
ing the ballots? — A. Yes, sir; we couldn't make them out before.
Q. Did you adjourn before they were made out?
"Mr. Adams. We object to that as incompetent, irrelevant, and immaterial, there
being no such allegation in the answer.
"A. We made them out right then and there; as soon as we finished counting we
mad e 0 ut our report .
"Q. The whole eight of you signed this? — .V. I think so; yes, sir."
The Chairman. IIow many inspectors are there under the law?
Mr. Fellows. Four.
The Chairman. How many are sworn?
Mr. Fellows. Eight were sworn, and eight were acting. He says that they all took
tickets, that they all acted as inspectors,
Mr. Carney. Oh, no; he says there were eight in all sworn in, including those who
were acting as extras.
Mr. Fellows. Let me read from page 488 of the record. [Reading:]
"Q. Did anyone else receive ballots there that day? — A. Only during meal hours.
**Q. Who did? — A. I couldn't say. We all took turns at the box.
**Q. The whole eight of you? — A. Yes, sir.
"Q. Was there anvbody in that booth that day, aside from the inspectors? — A.
Well, yes; the city clerk was in there, and the city attorney was in there two or three
different times.
'*Mr. Adams. 1 object to that as incompetent, irrelevant, and immaterial, there
being no all^ation of that kind in the contest he has answered that would warrant the
intnxiuction of such testimony under the issue.
"A. (Continuing.) There were several there. I couldn't say just who they were
now, but several ones came into the back door. There is a front and rear door to this
Srecinct. I couldn't say now, but several different ones, looking after their candi-
ates, men who had voted and who had not.
"Q. There was nothing to hinder their coming right in? -A. No, sir; the doors were
not locked.
"Q. Do you know of anybody, aside from the inspectors who handled ballots? —
A. No, sir; I do not; not at that election.
*'Q. During that day? — A. Not at that election.
"Q. Do you know a woman named Miss Marsh? — A. Yes, sir.
"Q. W^as not she present, and did she hand out ballots? — A. I may be mistaken, but
it seems to me she was there in the spring but not in the fall. She was there in the
fall, I think.
"Q. At the November election? — A. Yes, sir; that is when she was there, and also
Mrs. Oldfield.
*'Q. They were handing out ballots to the voters in that precinct, were they not?
"Mr. Adams. I object to that as leading.
72 CLAUDE S. CABNBY VS. JOHN M. C. SMITH.
"A. (Conliuuing.) I think— 1 am not positive — I think that Miss Marah and Mrs.
Oldfield did hold Dallote two or three different times, and did paas them out for Mr.
Geanr.
**Q. Was he an inspector? — A. He wae the man that gave out the ballots; yes, air.
"Q. You say that you finished along about 2 o'clock in the morning? — A. About
that time;, yes, sir.
*'Q. As near as you can tell?- -A. As near as I can tell; yes, sir.
"Q. When did you commence making out the returns, after you commenced
counting the ballots?— A. Yes, sir; we couldn't make them out before.
"Q. Did you adjourn before they were made out?
"Mr. Adams. We object to that as incompetent, irrelevant, and immaterial, there
being no such allegation in the answer. He made them out right then and there; sa
floon as we finishea counting, w^e made out our report.
"Q. The whole eight of you signed this? — A. 1 think so; yes, sir.'*
I am not here to misouote this record or to try to mislead this committee, and I do
not take with favor sucn suggestions.
Mr. Freak. The chairman asked you in regard to this decision which has just been
read, if that is in force and the 70 votes are to be thrown out in this precinct because
of the fact that there were some extra instructors in it — he asked you what you had
to say about that, and you return by saying that here are other precincts in which
the same condition exists, and you refer to tne second ward of Albion, in which some
49 votes were cast in favor of Mr. Carney, and U) the 39 votes in Kalamazoo. This
is your answer to the statement of the chairman?
Mr. Fellows. Yes, sir; and not only tliat, but without going into details, attention
is directed in our brief to the fact that in practically every ward in the city of Kala-
mazoo women were attending the j>olls. There is no testimony that these women
had any credentials from any committee or from anything of the kind. It is alleged
that the act passed at the special session of 1912 permits them to act as challengers,
but I do not so ccmstrue tliat act. In other words, I do not construe the act as being
an act to take out of the hands of the voting population the machinery for running
the elections.
Mr. Crisp. In the answer (jf the contestant, are these precincts to which you are
now referring brought in?
Mr. Fellows. I am not prepared to say that they are so specifically as they ought
to be. 1 apprehend that if the contestant's notice is amended or if you will permit
him to amend his notice, that of course that" would give the contestee the right to
amend his notice also.
Mr. Crisp. 1 think undoubtedly you are right about that.
Mr. Fellows. I will call vour attention right now to the place where that law is
found. It is on page 212 of the printed record, Judge Post. 1 will not stop, however,
to read it now.
Now, I want to call your attention U) the tcstimonv of another witness in this same
ward, Mr. B. O. Bush. This is that same ward of Kalamazoo, the seventh precinct
of Kalamazoo. This is page 513 of the record. Miss Marsh admits that she was
present, but denies that sne pa»«ed out any ballota.
Mr. Frear. Leaving out of the question Miss Marsh, what about these eight in-
spectors?
Mr. Fellows. It is claimed that four were unauthorized. If the poll should be
vitiated in Sunfield by reason of the presence of an unauthorized person within the
polling place, then the poll in Albion and Kalamazoo should be vitiated for the same
reason.
Mr. Frear. These ladies claimed to he there in addition to the inspectors?
Mr. Fellows. Yes. In fact. Miss Marsh's testimony said in substance that she
was not appointed, except that she was self-apix)inted and went there because she
thought her presence there would help the woman's suffrage cause. She testified
that she did not solicit any votes.
The Chairman. Did they vote on the suffrage question that day?
Mr. Fellows. Yes.
The Chair-man. Do you not think that under this special act they had a right to
be there?
Mr. Fellows. No; I do not concede that they had a right to be there. I do not
concede that the smxial act permits others than electors to be behind the railing.
In other words, as I view that, the challengers should be voters, and that the act does
not authorize women to step behind the jwlls.
Mr. Elder. Did the other lady there, did she admit
Mr. Fellows (interix)aing:). She was not sworn at all, so it is uncontradicted that
she did hand l)allot.-» out and did fold them.
CLAT7DB S. CABNEY VS, JOHN M. C. SMITH. 73
Mr* Eld£r. I understood that she folded them and handed them to one of these
inspectors.
Mr. Stevens. She handed them to the voter.
Mr. Fellows. I will read from the testimony of Mr. Bush, page 513 of the record:
"Q. Mr. Bush, where do you reside?— A. 36 West South Street, in the city of Kala-
mazoo.
*'Q. Were you a member of the board of election inspectors of the election held
in the seventh precinct of the city of Kalamazoo, county of Kalamazoo, State of
Michigan, on the 5th day of November, A. D. 1912?— A. 1 was; yes, sir.
"Q. Did you see women behind the railing there? — A. Yes, sir.
*'Q. Do you know a woman by the name of Miss Marsh? — A. 1 know a woman
who was introduced to me as Miss Marsh.
" Q. Was she present there behind the railing during the election in that precinct? —
A. Yes, sir.
** Q. Did you see her handling any ballots at that election in that precinct — handing
them to the voters? — A. Well, we were very busy that day, and one of the inspectors
signed the ballots and, there being seven ballots in all, it was a pretty hard matter to
fold the ballots and get them ready and keep enough aliead to supply those. The
lady, she did not interfere, but now and then she would assist a little in folding, and
oftentimes when a man's name was called handed them out in the general order so
the numbers agreed on the ballots, once in a while. She was very ladylike about
it; she would pick up the ballots according to the number and hand them to the man
when we called his name off the book of registration.
*' Q. She handed the ballots instead of the inspectors? —A. Yes; she did that several
times.
"Q. Was she in any way connected with the board of election and inspectors
there? — A. She was not; no, sir.
"Cross-examination by Mr. Adams:
"Q. This Miss Marsh only had the suffrage ballots, didn's she? — A. She handled
the whole bunch. There were seven ballots, if 1 remember right; seven of them, I
think, last fall. I may be thinking back — I said seven — 1 was thinking back of the
spring election. There was more than — I will not say the number of ballots. The
suffrage ballot and the general ballot, upon which ballot the State and county tick-
ets are, I will not say; but in order to Keep the numbers to correspond, we would
slip them into wrappers as the ballots were signed up, so as not to lose track of the
number of the ballot, so they would always correspond with the number on the poll
list. The ballots lay there and I would look up, and when I would say 'AH right'
she would take the ballots herself and hand them out through the window to the appli-
cant or voter.
"Q. She was right there near you? — A. Yes, sir.
"Q. You were right there close to Miss Marsh when she handed them out? — A
As close as to Mr. Shotwell here.
"Q. W^ithin a couple of feet? — A. Yes, sir."
Mr. Elder. Does the law permit these lady challengers to be there; did it author-
ize them to act in any other way except as challengers?
Mr. Fellows. I am not prepared. Judge, to construe the act as permitting them
to act as inspectors.
Mr. Elder. Assuming it permitted her to be there as a challenger, did it permit
her to hand out ballots?
Mr. Fellows. Oh, no; the only thin^ that the challenger has to do with reference
to the ballot is that if the voter is assisted the assistance ia conducted in the pres-
ence of the challenger.
Mr. Borchers. Was she "Miss" or "Mrs."?
Mr. Fellows. I think she is a "Miss."
Mr. Borchers. An old maid?
Mr. Carney. Yes; she is an old-maid school-teacher in the normal school.
Mr. Fellows. I am not aware what her occupation is. As I say, she denies it;
but Mrs. Oldfield does not deny that she did this same thing, and so far as Mrs. Old-
field is concerned the testimony^ is uncontradicted.
The Chairman. How long will it take you to finish, Mr. Fellows?
Mr. Fellows. I doubt very much if I can finish at the forenoon session.
The Chairman. We may decide, then, to adjourn until 10 o'clock to-morrow;
but I wish to say something to the members of the committee first. An amend-
ment has been put in here, of course without authority, and I have thought prob-
ably that the contestant would want to put in an additional amendment also.
l^r. Carney. The contestee, you mean?
The Chairman. Yes, to meet the other.
74 CLAUDE S. CARNEY VS. JOHN M. C. SMITH.
Mr. Fellows. Could I be heard upon the question of amendment before you fiiudly
determine on that?
The Chairman. What have you to Hay in regard to that, Mr. Carney?
Mr. Carney. Do I understand that the contestee has filed an amendment?
The Chairman. No, not yet.
Mr. Elder. I move that they simply be allowed to broaden their pleas, to cover
any evidence additional — not open the case for other evidence, but broaden it to
cover any evidence in the record for both parties.
Mr. Stevens. I second the motion.
Mr. Carney. May I just make a suggestion? I do not know but what that will be
satisfactory, but some of these things that are being sprung at us now have not been
alleged in the brief and were not alleged at any place by an amendment, and if the
amendment was not formall v offered and notice given in the regular way, we would not
have an opportunity of taking testimony. Now, there may be possibly some little
things here tnat the committee might have some q uestion about. Tnere is one question
that occurs to me now, the question of Miss Marsh and Mrs. Oldfield. So far as Mis.
Oldfield is concerned, I do not believe anybody apprehended that it would be alleged
that there was any substantial proof at all that she handed out a single ballot.
If you will remember, Mr. Chase testified that he thought she folded some ballotB
and handed them out. Mr. Hush, you will notice, testified that Miss Marsh handed
out these ballots. I am not sure whether Mr. Geary *s attention was directed to it,
but I know he claimed that nobodv handed out anv ballots but himself. Now, in
fairnea-', when they af^k for an amendment at this time, we should know what they
will claim.
Mr. Stkvens. Did Mrs. Oldfield teHtify in this matter?
Mr. Carney. N<», sir.
Mr. Fellows. The testimony that she did fold these ballots and hand them out is
uncontradicted, because witnoftfen were not called and did not deny it.
Mr. Cakney. There is another thing on that. The testimony of Mr. Chase is pretty
badly mixed, and Mr. Buph. who Mr. Fellows ha^ just quoted, says that he was in a
very greatly int<>xicatcd condition that day.
The Chairman, (ientlcmen, a motion has been made, and that motion is to permit
each party lo amond his pica, but that the amendment shall be limited to the record
as it exists. On that question the clerk will call the roll.
(On roll call, the committee voted "aye** unanimously.)
The (^uAiRMAN. The motion is carried.
The (^hairman. How long will it take you to do this?
Mr. BoRCHERS. If we have a committee meeting to-morrow, it will be impossible
for me to be present.
The Chairman. How would it do to go on at half past 1 this afternoon?
Mr. Carney. It will be satisfactory as far as I am concerned.
Mr. Shields. It suggests itself to me that if Mr. Fellows thinks he can finish in
three-quarters of an hour, in that case we might get through this afternoon.
Mr. Fellows. Of course, considerable of my time has been taken up in questionfl
this morning.
Mr. Shields. I was going to suggest that, so far as answering what has already been
presented, an hour would, I think, be sufficient time for me. If we shoula raise
additional questions, of course it might take longer.
Mr. Frear. I suggest that Mr. Smith file his amendment, so that you may know
what is contained in it. You are entitled to that. Could you have your amend-
ment ready by half past 1?
Mr. Fellows. I do not know whether we could have it by that time, but we could
have an understanding that it only covers the facts set up in the testimony.
The Chairman. When will you prepare it?
Mr. Fellows. Right away.
The Chairman. Very well; we will adjourn until 2 o'clock this afternoon.
after recess.
The committee reassembled at 2 o'clock p. m., pursuant to recess taken.
The Chairman. You may proceed, Mr. Fellows.
Mr. Smith. I have submitted to counsel on the other side an amended answer,
and unless they have some objection I will read it and submit it.
The Chairman. Very well, suppose you read it.
(The amendment referred to is as follows:)
CLAUDE S. CABNEY VS. JOHN M. O. SMITH. 75
(By pennifision granted by the committee.)
Claude S. Carney, Contestant j
V.
John M. C. Smith, Contestee and Respondent.
Amendment to answer of contestee and
respondent.
To the House of Representatives in the Congress of the United States:
Comes now the contestee, John M. C. Smith, and amends his answer heretofore filed
in thie case, and ^ives additional notice that under the rule invoked by the contestant
that the election m the following precincts, to wit:
In the first, second, and fourth wards of the city of Albion, in Calhoun Coimty, and
in the first, second, third, fourth, fifth, sixth, seventh, ninth, tenth, eleventh, twelfth,
thirteenth, fourteenth, and fifteenth precincts of the city of Kalamazoo; and also in
the townships of Comstock, Texas, Brady, Ross, Cooper, Alamo, and Prairie Ronde, in
the county of Kalamazoo, in each of which the contestant received a majority of the
votes, should be set aside and held to be void for the following reasons, to wit:
1. That the returns are not properly executed, signed, andsworn to by the election
ofiScers.
2. That the illiterate and disabled voters were not sworn before casting their ballot.
3. That the returns were not properly sealed as required by law.
4. That outside and unauthorized persons acted as election officers.
5. That the vote was not counted oy properly authorized inspectors and clerks of
election.
6. That the returns were not made out and executed upon the completion of counting
the votes.
7. That there was no proper tally or register kept of the vote by authorized clerks or
inspectors of election.
8. That unauthorized and outside persons acted as clerks and inspectors of election.
9. That the board of election inspectors adjourned at various and divers times on
election day and before completing the canvass of the votes without warrant of law.
10. That unauthorized persons assisted in the conduct of the election and the canvass
of the votes.
11 . That no l^al returns of the election were made.
12. That unauthorized persons were admitted and remained behind the railing and
within the voting places during the time of voting.
13. That there were no railings around the booths in the voting places.
14. That the election inspectors distributed and received the ballots in a r(X)m differ^
ent from that containing the booths.
15. That the returns made to the board of county canvassers were not opened by the
board of county canvassers, and still remain intact and under seal.
16. And also for the various reasons set forth in the answer heretofore filed.
John M. C. Smith, Contestee,
Mr. Smith. Now, that may not be entirely complete, but that is substantially what
it is. Following that, the rommitlee may possibly ask in what precinct that would
apply, and I have prepared — ^partially prepared, but I would not like to be confined
entirely to this — the case was brought before I had it prepared as I would like to have
had it prepared before submitting it for the record, but I have here a statement of the
places that would apply to and that I think would follow in that connection.
Contestant then cites several cases that the law requiring the inspectors to first
swear the illiterate voters before rendering them a^^istance is mandatory and the
failure to comply with such law renders the whole vote void, ((contestant's brief, p.
43.) If such is the holding of the committee, then we ask that the same ruling be
applied to the third, fourth, ninth, tenth, twelfth, thirteenth, and fourteenth pre-
cincts in the city of Kalamazoo, which gave contestant a plurality of 395 votes.
Mr. Carney. Will you read those precincts again, please? I think they ought to
be in the amendment.
The Chairman. I thought it was tacitly agreed by the gentlemen on each side the
other day that under the law in Michigan where there are illiterate voters voted and
they are not properly handled in casting their votes, that under the law of Michigan
only those votes would be cast out, and it would not affect the whole poll. My under-
standing is that both sides agreed to that the other day.
Mr. ("arney. These decisions were both quoted in our brief.
Mr. Smith. This is simply to make up the record. This is the answer 1 have pre*
pared if they made that claim. They opened the case on that ground, and this is
done solely for the information of the committee.
76 CLAUDE S. CARNEY VS. JOHN M. C. SMITH.
The precincts were the third, fourth, ninth, tenth, twelfth, thirteenth, and four-
teenth })recin(*t/4 in the city of Kalamazoo, which gave the contestant a plurality of
395 voles. In all of which it ajjpears that the illiterate voters were instructed and
assisted in the preparation of their ballotj^, without any oath being administered, and
further that if tliis ward is to be rejected for innocently suggesting the name of con-
testee to a confused voter who wislied to vote for him, or for instructing him how to
mark his ballot, then we ask that the seventh precinct of Kalamazoo, which ^ve
contestant 89 plurality, whert* the <-ity (!lerk and city attorney were two or three tunes
within the booths, be also rejected, and that the second precinct of the city of Kala-
mazoo, whi<'h gave c<)nt<'stant 69 plurality, and where one of the gate keepers being
within the l>ootlis, instructed the voters and told them how to vote, be also thrown
out (Record, p. 499).
Now, you may want to know where some of these conditions exist, and I will say for
the information of the committee that it is in the township of Cambria, Hillsdale Coimty,
where contestant received a plurality of Go votes, and where W. D. Payne tallied for
two hours without being sworn as inspector or clerk. (Record, p. 575.) Also the
second pn»cinet of Albion, where contestant received a plurality of 47 votes and there
were five inspectors who acted (Record, p. 477), while the charter provides for only
four (Record, p. 467). And what about Moscow, that gave contest^int a plurality of
57 votes where on<* of the iusjK»ctors incapacitated him»<elf by strong drink (Record,
p. 550), or Reading Township, when* they voted in a shoe box (Record, p. 576), and
where two iiispertors and two cIlalh»Ml;:e^.•^ went out on the street and collected ballots,
in which precinct contestant received a plurality of 61 votes.
Tlie CifAiiiMAN. In that coTUKHtion, have you any law governing the conduct of
election inspectors where a voter is unable to get out of a rig and go into the polls?
Mr. Smith. Xo, sir.
The testimony shows that Mrs. Oidfield folded and handed out ballots to the voters
in the seventh precinct of Kalamazoo city (record, p. 489). This testimony is not
denied.
Now, I know it will be of great aid to the committee, and I only make these amend-
ments and references to aid the committee, because the record is so full alreadv that
it is too much to ask the committee to read this from cover to cover, but if you decide
to apply these rules to these wards, we will ask you to consider these precincts which
I have prepared here. I have shown to Mr. Carney this list of precmcts and town-
ships, and under those precincts are the witnesses for the contestant and the con-
testee, which you will find very convenient. Then you can turn to the index and see
just where the page is in the index, but the index does not give the township, but
only the name. Now, when the township or precinct occurs to you ^ntlemen, you
can turn to tiiis record index, and under that will be shown the witnesses for the
contestant and for the con testee. That is for your convenience. If jrou will j>rint
it in the record, I am auite sure you will find it very convenient. If I had had time,
I would have put the ngures in in the answer.
The Chairman. Can you have somebody in your office go through it and put in
thejpages?
Mr. Smith. Very readily.
The Chairman. Then we can make it a part of the record.
Mr. Smith. I will have the pages put in just as they appear in the index, so that
you will not have to refer to the record to find the pages.
Mr. Stevens. That contains the names of all witnesses?
Mr. Smith. Yes, sir.
Mr. Shields. So that the names can be secured from here?
Mr. Smith. I just received the letter from the committee notifying me of the
hearing the day before they met. I did not have counsel and was not looking for it
quite so soon. I almost feel as though I came too soon, but this was among my files
and I am willing to let it go into the record as a matter of convenience.
(The list referred to Ls 9fi follows:)
[Figures refer to record pagas.]
BRANCH county.
UNION crrY.
W it nesses for contes Urn ( . | Witnesses for coDteatee.
W, H. Tower, 8npervif»or, 155-170.
OLATTDE S. OARNEY VS. JOHN M. 0. SMITH.
77
CALHOUN COUNTY.
BATTLE CKEEK.
Second precinct, second ward.
Agnes M. Sterling, deputy county clerk,
134-135.
Geo. W. Schneider, chairman county
canvaasing board, 135-153.
Tho8. H. Thorne, recorder, 439-440.
Ray E. Hart, county clerk, 442-451.
Fred L. Christian, chairman, 457-460;
465-467;
Harry ('hristian, inspector, 460-466.
MABSHALL.
Second ward.
I Starr K. Cluu-ch, inspector, 440-442, 453.
ALBION.
I W. A. Noyes, city clerk, 467.
Fint ward.
\ S. W. Culver, supervisor, 467-476.
Second ward.
I Wm. Bemer, supervisor, 476-484]
Fourth icard.
j M. O. Reed, supervisor, 484-487.
EATON COUNTY.
CHARLOTTE.
Sam Robinson, 37-43.
Myron Hawkins, coimty canvaasing board ,
5e-66.
R.L. Sowers, 80-85.
Emest Davids, 93-98.
Prank Foid, county clerk, 114-126, 390-
392.
J. C. Nichols, county clerk, 304-333, 334-
358.
J. H. Brown, chairman canvassing board,
358^365.
Frank Ford, county clerk, 114-126,390-
392.
E. G. Pray, executive committee clerk,
412-420.
Second ward.
F. M. Overmyer, challenger, 48-56.
H. A. Hamilton, alderman, 365-371
C. R. Barber, alderman, 371-385.
0. S. Knowles, alderman, 385-389.
Roy D. Preston, clerk, 392-400.
Herman Guide, clerk, 401-405.
Third ward.
Jackson Moeier, challenger, 43-48.
E. Dunning, alderman, 405-412.
J. B. Dowdigan, alderman, 420-424.
C. E. Fisher, clerk, 424-427.
Roy Munger, clerk, 427-431.
J. W. Sawyer, challenger, 431-433.
Fourth ward.
F. B. Johnson, challenger, 85-90.
John Palmer, supervisor, 66-78.
Wm. Witherall, 90-93.
Sylvestor Franks, 78-80.
StTNnSLD TOWNSHIP,
Joel Bera, deputy clerk, 243-247.
D. A. Hager, justice of the peace, 216-235,
247-249
D. W. Knapp, clerk, 237-243,249-250,
333-334.
H. H. Mapes, township clerk, 250-258.
A. H. Sayer, inspector, 433-438.
Z. D. Slater, gate keeper, 235-237.
78
CLAUDE S. OARKSY VS. JOHN M. C. SMITH.
BKLLXVUE TOWNSHIP.
£. A. Johnson, gate keeper, 90-104, 106.
A. B. Hoyt, 258-261.
Orrin Kimberly, 261-262.
H. M. Weed, superviaor, 262-266.
Daniel Hall, justice of the peace, 26^268.
CARMKL TOWNSHIP.
W. A. Case, challenger, 104-114.
C. Gushing, challenger, 269-281.
G. Griflan, euperviaor, 281-290.
W. L. Ruber, justice of the peace, 290-299.
W. C. Martin, clerk, 296-298.
H. Shaver, justice of the peace, 299-304.
Wm. Clements, 400-401.
DDIONDALE TOWNSHIP.
W. J. Bateman, supervisor, 170-174,
181-182. !
Ray Burnett, township clerk, 174-176,
183.
S. G. Vanderbeck, justice of the peace,
176-179, 182-183.
F. L. Smith, justice of the peace, 179-181.
HILLSDALE COUNTY.
HILLSDALB.
Carybelle Hancock, deputy county clerk,
565-571, 598-599.
CAMDEN TOWNSHIP.
Frank Fast, justice of the peace, 546-548,
549, 571-572.
H. C. Crane, 548.
MOSCOW TOWNSHIP.
M. H. Bleech, clerk, 54^^551, 571,
L. Siegel, clerk, 551-554.
WRIQHT TOWNSHIP.
O. J. Gleason, supervisor, 554-555,
583-584.
Jesse Barber, justice of the peace, 582-583.
CAMBEIA TOWNSHIP.
! Kay Smith, clerk, 572-575.
W. D. Payne, clerk, 575-576.
Claude Carney, 212-215.
W. C. Hipp, inspector, 202.
READING TOWNSHIP.
J. Campbell, inspector, 576-582.
E. R. Galloway, supervisor, 584-594, 596.
WOODBRIDQE TOWNSHIP.
I C. Lamphere, supervisor, 594-595.
ALLEN TOWNSHIP.
I J. M. Deye, clerk, 596-597.
KALAMAZOO COUNTY.
KALAMAZOO.
K. F. Curtenius, county clerk, 514-546.
R. H. Elwell, registrar. 546.
First precinct f first ward,
I J. R. Rockwell, clerk, 500-501.
CLAUDE S. CABNBY VS. JOHN M. C. SMITH. 79
Second precinct ^ first ward.
Jesse Wilkins, chairman, 202-203. | F. A. Newell, inspector, 497-500.
Third precinct, first ward.
N. B. Wheeler, inspector, 194-196. | Norbert \\lieeler, chairman, 501-503.
Fourth precinct, second ward.
C. H. Little, inspector, 188-190. | C. H. Little, inspector, 503-505.
Fifth precinct,
Richard Early, inspector, 201-202. |
Sixth precinct.
Frank Flaitz, inspector, 19f>-198. |
Seventh precinct, third urard.
Harriet Marsh, 183-185. 1 J. B. ('hase, chairman, 487-492.
W. E. Geary, inspector, 206-210. | B. 0. Bush, inspector, 513-514.
Ninth precinct, ninth ward.
E. E. Labadie, inspector, 203-205. | F. C. Walters, deputy- clerk, 507-508.
Tenth precinct, fourth ward.
A. T. Ten Busschen, alderman, 186-188. ! F. B. Godfrey, inspector, 505-507.
Eleventh precinct, fourth ward,
L. Hollander, inspector, 210-211.
Twe^th precinct, fifth ward,
B. F. Van Biarcom, alderman, 205-206. | F, C. Waterman, inspector, 509-510.
Thirteenth precinct.
I Ernest Wise, clerk, 510-511.
Fourteenth precinct, fifth ward.
Roland Fairchilds, inspector, 199-200. | Geo. Thayer, inspector, 511-513.
Fifteenth precinct.
Ernest Wise, inspector, 198-199. |
TEXAS TOWNSHIP.
W. W. Allen, justice of the peace, 185-180. | W. W. Allen, justice of the peace, 494-497,
ALAMO TOWNSHIP.
Alvord Peck.justice of the peace, 190-1 92. |
VICKSBUBO.
W. J. Yates, justice of the peace, 192-194. 1
POBTAOE TOWNSHIP,
H. B. Sweetland, township clerk, 194. |
COOPEB TOWNSHIP.
1 W. F. Huntley, inspector, 492-494.
COMSTOCK TOWNSHIP.
I W. E. Boyd, clerk, 508.
CLIMAX TOWNSHIP. •
Huber, Elwell, inspector, 153-155. |
80 CLAUDE S. CARNEY VS. JOHN M. C. SMITH.
The Chairman. While Mr. Follows is makinfr his ai^irument, have you anybody
that you (*ould j^eiui over to the clerk's oflice and >)ring us those tally sheets, ballots,
and po forth?
Mr. Smith. I do not think I have anyone I ronld send.
The Chairman. How big is it?
Mr. Fellows. If they could brinij the papers from one township, the statement of
the votes, the poll list and tally slieot, it would be sufTicient, I think.
The Chairman. I will send for it here. You may proceed. Mr. Fellows.
ABGUMENT OF MB. GBANT FELLOWS, ATTOBNEY FOB HON. JOHN
M. C. SMITH.
Mr. Fellows. T challenge attention to the act of X.)12. which seems to be plain that
this is what gives authority for the ladies b€»ing within the rail in the various precincts
in Kalama/oo.
The Ch.\trman. We have read that act. and I think we agree with your construction,
so you may pass that.
ifr. Fellows. I might say to the committ< e that in addition to the one precinct
that I called attention to. there Avere several precincts which I wish to call attention
to in our brief in the same city, where the women were behind the ix)llfl, but I do not
think that except in the one precrinct there is any e\idence that thev distributed
ballots. I will try and get through within the three-<|uarters of an hour allotted to me,
if I possibly (^n.
The second ward of the city of Charlotte raises this question: In this ward there
was a man. I think he was either an alderman or a siiper\i8or, at least he held such an
offire as made him a member of the board of inspectors here, named Hamilton. Mr.
Hamilton wat^ ill when he arrived there that morning, and along about noon he became
so ill that it was not possible for him to remain any longer. A Mr. John C. Nichols
was called in to take the ballots. I think I have described how our ballots are ar-
ranged, that one inspector initials them, another hands them out. and another takes
them from the voter as they go from the booth and deposits them in the ballot box.
Mr. Hamilton was receiving ballots, taking them and depositing them in the ballot
box. Mr. Davis, if I am not incorrect about the name — ^l)ut that is not material —
was handing out ballots, and Mr. Hamilton became sick. Mr. Nichols was there and
the inspector, whoever he was, called upon Mr. Nichols to receive ballots. Now,
Mr. Overmeyer, a witness called by the contestant, testified, on page 50, that he thinks
he was receiving ballots for an hour and a half. A 11 of the other members of the board,
the man who was challenger, testified. Mr. Nichols says that h^ received five or six
or seven votes. Another witness says he may have received three or four. Another
one says six or seven. liut an emergency arose there in that precinct, and while that
was the condition, }>ecause it was the noon hour when, as we all know, people vote on
their way home to dinner and on their way from dinner — ^l>ecaupe out there we have
dinner at noon — they came in in a rush, and to take care of that emergency, Mr. Nichols
was called in. I do not recall that there has been any holding by our court upon that
question that it would vitiate the election. In fact. I think we can say the general
rule is this, as I undtTstand it. in reference to provisions of the election laws of the
various States of the I'nion— and I am quite frank to sav that our State has been quite
vigorous in its holding — that provisions of the election law were mandator>\ But as I
understand, there is a distinction, a definite distinction, between those matters and
provisions which precede the putting of the ballot into the box which precedes its
preparation and triose provisions which go to its canvassing, the count after the vote
IS taken. In other words, after the elector has carried. out his wishes, without any
violation of the election law, election precincts can not be thrown out and the elector
disfranchised by reason nf defects that existed after that. I think that is a wise rule
and I think that is the law.
Mr. Stephens. Have you any authority to that effect?
Mr. Fellows. I think McCrary on Elections lays down that general doctrine. I
am not able to give you the cit tion if it is in the brief.
Mr. Stephens. You have no Michigan case on that?
Mr. Fellows. No; I am quoting my general understanding of the rule, rather
than a Michigan case.
The Chairman. Do you not think your contention is directly opposed to the decis-
ion in the case of McCall r. Kirby?
Mr. Fellows. No; the authority in that cai^ consisted in an unauthorized man
being where he could hand out a ballot to the voter and did not. The infirmity in
the Kirby case was not in the canvassing; it was not in the return or the count of the
vote, Vnit it was in the method used to get the ballot into the box, and preceded the
OLJkVDE S. CARNEY VS. JOHN M. G. SMITH. 81
voter «>iiig iu to vote, and it was held that that proviaion was mandatory. So the
Rhinehart case — when I get to the Rhinehart case it will be shown that there was
something which pieced^ the ballot going into the box, and was not something
with reference to its handling. So, as I say, an emergency arose, and the most that
could be done, I apprehend, so far as the second waid of the city of Charlotte was
concerned, would l^ to determine how many of these illegal votes there were, under
the Reynolds v. May case, but in our brief we have taken up and discussed the testi-
mony of these various men who w^ere called as witnesses, as against the testimony
of Mr. Overmeyer alone. Now, while the cx)urts of Michigan — I am not going to u nder -
take to say that I remember all the decisions of the court, and the court may have
passed upon it and I not be familiar with it, but Congress has q)oken upon this very
same subject — or at least the Committee on Elections, in ca«e of Williams against
Settle, as cited in our brief, page 44, and found in the second volume of Hinds Pre-
cedents, section 1049:
"At this precinct ballots w^ere cast for James A. Bullock for the office of county
surveyor. He was one of the judges of election, but told the electors on election
day that he was not a candidate and would not accept the office if elected. The proof
in the case shows that the fact that he was one of the judges of the election dia not
have any effect whatever on the result of the congressional election. The proof i»
overwhelming that the election was properly conducted and the result honestly
certified."
So that the doc*trine seems to l)e laid down here as to the fact that a man who is a
candidate does, although the law says he shall not, act: that it does not disfranchiw?
the voter and vitiate the ballot. That was the case where, as I understand, Bell sat
during the entire election.* In the case that we have under consideration, Mr. Nichols
was only present, as he testified, and as the rest of them testified, for 10 or 15 minutes.
Mr. Hamilton said that as soon as he got home he telephonea for a man that took
his place, a Mr. Barber, who came right down and was sworn in and continued to act.
I think that we all realize that emergencies arise in the conduct of every election,
and in those emergencies, the men who are intrusted to carry out the law try to get
along as well as they can, so that the ele<'tion machinery goes on and people are
elected, and people hold officre where possibly the strict letter of the law is not com-
plied with.
Now. we come to Carmel Township, which involves the proposition of votes being
counted at 2 o'clock. The way that arose was this. In the State of Michigan we
have an exceptionally large ballot. We have not only an extra party — one more
than we thought we needed, anyhow, but in addition to that, two justices of the su-
preme court, who were usually elected at the spring elections were elected by reason
of a vacancy existing, so that the ballot was much larger than ordinarily. Now, the
kind of ballot box that they had in Carmel was — I think it is described as a sort of
a churn affair, where the ballot is put in !>etween two rollers an<l rolled into the box.
They discovered along about noon that this box was getting full, and they had to do
something in order to take care of the situation whi<'h arose there. Now, Mr. Huber
was called upon — and I want to rea<l his testinoTony at page 291, which shows just
what took place, and I might say that in this record, if you should read it from be-
ginning to end, you will find that there is not a very large amount of conflict [reading]:
" Q. W'ere you a rtiembei of that election board in that township on the 5th day of
November, 1912? — A. Yes, sir.
**Q. Did you serve all day? — A. I did.
^' Q. Did an emeigency arise along about 2 o'clock of that day?
"Mr. Adams. I object to that as assuming something and leading and calling for
the conclusion of the witness and as incompetent, Irrelevant, and immaterial.
''A. I know the ballot box was being filled.
" Q. Wnat kind of a ballot box did you use? — A. A metal box 12 inches in diameter
and 28 incnes long.
"Q. How were the ballots put in the box? — A. There was a slot on top and two
rollers that worked. opposite each other and a crank to roll them in the box.
" Q. Was it so constructed that you could slip a ruler or anything of that kind in the
slot to jam the ballots down?— A. It was not.
"Q. Along about 2 o'clock the box became full? — A. Yes, air.
"Q. So it would not work?
**Mr. Adams. I object to the question put by the attorney general and the one
before it as leading, and I take an exception to this mode of examination.
"Q. When that occurred what was done, was there any discussion before anything
was done?
''Mr. Adams. I object to that as leading.
21028—13 6
82 CLAUDE S. OABNET VS. JOHK M. G. SMITH.
'^A. The l)oard had talked the matter over at noon and consider tng the aize of the
ballots and tiie size of the lx)x, the box would become full before night. We had two
small boxes alx)ut 6 by 6 l)y 12 inches, I think, inside measurement, one was for the
woman suffrage ballot and the other was empty.
*'Q. What was there in that one that was empty, was it laige enough to take care
of the rest of tlie election that day? — A. It was not: it had a partition across in the
center and it left about 6 inches at each end to put in small ballots. It wasn't any-
thing more than foi tlie amendments to the constitution.
"Q. Now you say you discussed that at noon? — ^A. Yes, sir.
**Q. Among the members of the board, you mean?— A. Yes, sir.
"Q. Did you discuss it with anybody besides the board?— A. We talked the matter
over with those present
"Mr. Adams. 1 ol)ject to what he discussed with anylx)dy besides the members of
the board as incompetent, irrelevant, and immaterial.
"A. There were a number present, among them Mr. Spencer.
"Q. WTiowashe? — A. An auctioneer.
"Q. Was he quite active at that campaign?
"Mr. Adamh. 1 object to that as incompetent, irrelevant, and immaterial and call-
ing for tne conclusion of the witness. '
"A. I couldn't say liow active he was on that day: he was a Democrat.
"Q. Where did he live?— A. He lived in (^ha^lotte.
"Q. Did he have any business other than politics out there that day? — ^A. Not that
I know of.
"Q. Did you discuss it with him?— A. We talked the matte, over and said we were
up against a proposition.
"Q. Did you discuss it with anybody besides Mr. Spencer? — A. Wit>i Mr. Ells, tHe
chairman of the Democratic county ticket.
"Q. Was he also a candidate on the Democratic ticket? — A. Yes, sir.
"Q. What did he say about it?
"Mr. Adams. Objected to as incompetent, irrelevant, and immaterial and hears^'.
"A. He said as far as he was concerned he couldn't see any other way oat of the
difficulty.
"Q. Was Uiis discussion had by you for the purpose of finding some means to get
along with the emei]gency you had?
"Mr. Adams. Objected to as incompetent, irrelevant, and Immaterial, and hear-
say.
"A. It was.
' "Q. What did you finally determine upon? — A. We concluded the best way was to
call in several extra clerks and proceed witii the count, so I swore in William Clements
and Gortez (Pushing as extra clerks.
"Q. What was their politics? — A. One was a Demociat and the other was a Repub-
lican.
"Q. They were men of standing in that community?
"Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
"A. I always had great respect for their integrity.
"Q. You had at that time no doubt but what they would honestly act in the posi-
tion they were called upon to act? — A. 1 had not.
'* Mr. Adams. Objected to as incompetent, irrelevant, and immaterial.
"Q. After they were sworn in what was done? — A. We proceeded with the empty-
ing of tlie ballot i>ox on several tables. Mr. Crushing proceeded with the sorting of the
ballots, placing tlie straight Democratic* in one pile and the straight Republican in
another and the s^)lits in a third pile. We proceecied to count the Republican straights
and rolled them m a roll and put the number on the back and laid it up on a shelf
and the same with tlie Demo(?ratic votes. Then I swore in Mr. Clements and we
proceeded with the count.
"Q. Of the splits?— A. Yes, sir.
"Q. \Mio did the reading?— A. I did.
"Q. Did you correctly read the ballots you read?- -A. I did.
"Q. And gave to eat^li man that harl a vote thereon the vote ir the tally? — A. I did.
"Q. Had you finally completed the count when the time came to close the polls? —
A. We had not.
' " Q. How nearly had you completed it? — A. There were probably 8 or 10 and maybe
a dozen ballots left vet.
"Q. After the ballots were closed did you complete tlie split tickets on hand tnat
were cast after 2 o'clock? — A. Yes, sir.
"Q. Then what did you do? — A. In the interval we completed the 2 o'clock count
and the rest of tlie board had sorted the ballots cast from 2 o'clock on and they passed
the split votes to me and I kept on reading."
•N
CLAUDE S. OAENEY VS. JOHN M. C. SMITH. 83
Now it is not necessary to cyo further, but an emergency arose there. The counting
of these ballots was completed before the election was over, so no result was given out
or anything of that kind.
Now let us turn to the township of Reading, where an emercency also arose. The
provisions of the law in regard to ballot boxes in the State of Michigan is that there shall
be a suitable ballot box provided with a lock and key. Now in regard to the township
of Reading^ I want to quote from page 581 upon this proposition. Mr. Galloway was
the supervisor down there [reading]:
"Q. Is the vote of that township reasonably large? — A. Yes, sir; usually when the
whole vote is out, I think it ha^ been as high as 640.
*'Q. At this election November 5, 1912, the vote was somewhat larger than usual? —
A. Yes, sir.
'*Q. You had provided a ballot box for the ballots for the candidates and also
for the constitutional amendments? — A. The township has four ballot boxes. Three
of them were in a condition to be used, and the fourth one, I think, the lock was broken
and was not used.
"Q. You had two constitutional amendments besides the regular ticket for the
candidates? — A. I think so; yes. sir.
**Q. Now, during the day did the ballot box which you were using to cast the
ballots for the candidates become full? — A. About 11 o*clock I called the attention
of the board that we would not be able to put all the ballots in that box, and they
thought we had better take some means to procure some other box, so I called the
village marshal — he stood outside of the railmg— and had him procure a box with a*
slot cut in to admit the ballots, and he did so.
"Q. What was it? — A. It was a little shoe box I think, probably 30 inches long,
18 inches deep, and 14 inches wide.
**Q. He brought it to you with the slot cut in? — A. Yes, sir.
"Q. Was it securely nailed on when he brought it? — A. Yes, sir.
"Q. What was done with it after he brought it? — A. It was placed under the
table until necessity compelled us to use it, which I think probably might have
been somewhere about 1 o clock.
"Q. Then what was done? — A. Then we took the other box and pushed it to one
side and used this box to deposit ballots in.
**Q. Was there any lock on it? — ^A. No, sir.
* ' Q. Now, after the polls had closed at 5 o'clock how did you get the shoe box open? —
A. There was a hatchet there and we took the hatchet and pried the top off.
"Q. Then proceeded with the canvass? — A. Yes, sir."
Mr. Frear. Was there any evidence there to show whether or not there was any-
thing in this box when they began?
Mr. Fellows. No, the box was nailed up.
Mr. Frear. Was the box nailed up when they handed it to the inspectors?
Mr. Fellows. Yes, sir. Now, there was not anything in either one of these cases
with reference to the kind of ballot box that should be used.
Mr. Frear. What was the vote of those two precincts?
Mr. Fellows. In Carmel Township Mr. Smith received 137 and Mr. Carney 82.
In the Reading precinct, Mr. Smith 122 and the Carney vote was 183.
Mr. Frear. What did they do in the other precinct?
Mr. Fellows. They emptied the ballot box out, and used the same ballot box, and
appointed a Democrat and a Republican to count, and those two extras acted as clerks.
Mr. BoRCHBRS. What was the vote in the shoe-box case, where they emptied out
the ballot box?
Mr. Fellows. Smith 122, Carney 183. That was Reading. In Carmel Township
where they counted them, Smith received 137 and Carney 82. .
Mr. Frear. The question I asked there was whether or not they made any exami-
nation of the box before they started to deposit ballots in it — the shoe box?
Mr. Fellows. No, they did not.
Mr. Frear. The record shows that the box was brought in nailed up.
Mr. Fellows. Yes. In other words, the shoe box did not comply with the law
any more than cotmting the ballots before the polls closed did. They did not comply
with the strict letter of the law in either case.
Mr. Elder. Suppose they had no box sent them at all to put the votes in. What
would they do about holding the election?
Mr. Fellows. Under our law, the local board provides its own boxes. The clerk
is required to provide a box for them.
Mr. Elder. Does the law say what sort of a box it shall be?
Mr. Felix>w8. The law provides that it shall be a suitable box. with a lock and key.
The shoe box did not have a lock and key and to that extent dia not comply with the
r
/
84 CLAUDE S. CABKEY VS. JOHN M. O. SMITH.
law. In other words, emergencies arose in these two cases and they were handled in
diCfcrent ways. In one precinct the counting commenced before the law said it
should conmience, and in the other case they used a ballot box that the law would not
permit them to use .
Mr. Elder. The same (question arises in counting the ballots before the election
was dosed as in using an miproper ballot box. One is as illegal as the other. The
only trouble is, as Mr. Frear nas suggested, that nobody examined that shoe box and
knew what was contained in it before they began to deposit the ballots.
Mr. Shields. Under our law, no ballot or a facsimile of a ballot, except the yellow
printed instruction ballot, is furnished at the election booth. There is no way, from
the time they come from the printer up to the time they are deposited in the ballot
box, for anybody to get a ballot except one of the election officers.
Mr. Frear. The practice in many places is to take the box and open it and turn it
over in the presence of whoever is tnere when the voting begins, to show that no
ballots have been surreptitiously^ put in the box.
Mr. Fellows. Now, in Cambria Township there was also an emergency. It Diiwt
be borne in mind, I think, that the election that was held this year, so far as Michigan
was concerned, was a strenuous election. Some men became sick and some men be-
came incapacitated otherwise, and that is illustrated in the Charlotte matter— the
man who had been sworn in as an inspector became ill. In regard to Cambria Town-
ship I will read from the testimony of Mr. Payne, page 75 of the record [reading]:
*'Q. I never had an opportunity to talk with you, but you are a resident of Cambria
Township? — A. Yes, sir.
**Q. How lon§ have you lived there? — A. Thirty-three years.
"Q. Do you live in tne village? — A. Yes, sir.
"Q. Do you remember the occasion of there being an election last November 5?—
A. Yes, sir.
"Q. Were you in Cambria that day?— A. Yes, sir.
*'Q. And voted?— A. Yes, sir.
"Q. After the polls were closed did you assist in tallying the votes? — A. Yes, sir.
*'Q. Whose place did you take?— A. Mr. Fink's."
In tliis township Mr. Carney had a plurality of G5. The point here la that tlie
ballots were counted by a man who was not sworn in at all. and was not a member of
the board.
Mr. Shields. He was a man who was tallying, he did not touch the ballots.
Mr. Fellows. But he passed upon the returns as made [reading]:
"Q. He was the townsliip clerk? — A. Yes, sir.
"Q. About what time in the evening was it you took his place? — A. I ahouhi
judj^e about 9 o'clock, about; I just came out of the store; I thmk about 9 o'clock.
"Q. You were not sworn before you commenced tallying? — A. No, sir.
"Q. And had not been sworn to attend and act as clerk or inspector up to that
time?— A. No, sir.
"Q. Now, you tallied for Mr. Fink and in Vx?. place for about how long?— A. I
should fiidpe an hour.
"Q. Did you tally for anybody else?- A. Yes, sir.
"Q. Who?— A. Mr. SmiUi.
"Q. He was the otlier clerk of the election?- A. Yes, sir.
"Q. How long do you think you tallied for him? — A. Well, of course, I don't
know and can't call to mind off hand. 1 should say I worked an hour for Mr. Fink
and was off an hour. Uien took Mr. Smith's place possibly an hour; I will not say.
"Q. Were you there when thoy were finally through? — A. Yes, sir.
**Q, You were not asked to and did not sign the returns as clwk? — ^A. No. sir.
"Q. When you took Mr. Fink's place you used his book? — ^A. Yes. sir.
"Q. And when you took Mr. Smith's place you used his book? — A. Yes, air.
"Q. Who read tlie ballots? — A. Mr. Henry Fink, Mr. Lande. and Mr. Rogers.
"Q. Three inspertors instead of two? -A. Yes. sir."
So that in that precinct there was an additional and unauthorized inspector.
In Carmel Township an emeigency arose which was taken care of in one way.
It was not in a way that the law directs. In Cambria an emergency arose and it waa
taken care of not in a way that the law directs. Over in Reading an emergency arose
that was taken care of not in a way that the law directs. So that if one precinct has Xk*
be thrown out because the law was not followed, it would follow that the other pre-
cincts must be tlirown out also.
The (Chairman. Those defects that you are relying on, do they relate to defects
which occurred before the polls closed . or in the counting of the ballots?
Mr. Fellows. Some of them were before the polls closed, and some were in tlie
counting of the ballots afterwards.
0LAT7DE 8. OARNEY VS. JOHK M. C. SMITH. 85
Mr. Frear. There were two precincts in which there were six inspectors insteacl
of eight?
Mr. Felix) ws. That was in Sunfield Township.
Mr. DoRCRERH. What was the vote there?
Mr. Frbar. Thirty-nine and ninety-six. I think.
Mr. Felix>W8. Now. in r^ard to the township of Winsor. We have a former holding
oi our court with reference to the initial being on the right-hand corner of the ballot,
and in the opinion of Justice Hooper it was held that that failure did not vitiate the
poll. In the Rhinehart case, which arose in the election conteH over the office of
county treasurer, county of Csa», it was held that where an initial was put in the
perforated corner, that was not an ac*t initialing the ballot, and that was upon the
theory that the ballot was not initialed when it went into the ba)k>t box. You all
understand tliat the perforated corner is torn off before the ballot is put into the box,
and, of course, when that was torn off it took o£f the initial. There is no question as
to what the Rhinehart case holds, and if you see fit to follow the Rhinehart case in Uie
township of Winsor, the township is disfranchised and thrown out. Personally, I
think my friend Shields knows that I do not approve of the Rhinehart decision. My
partner, who is a Democrat, would have been a Member of Congress if it had not been
for the Rhinehart case. I directed the preparation of a bill in my department to take
care of that situation by requirine that upon each ballot there shall oe printed these
words, '* Inspector's initials here, and then a dash, so that in future elections we are
not going to have Uiat question occur.
Mr. Shields. Provided they follow the printed instructions.
The Chairman. In my State the board of supervisors of elections have a facsimile
of their names printed upon each ballot.
Mr. Fellows. They must be initialed, by our law. I think our State has gone
fiuiiier than any other State with the exception, possibly, of Penns^rlvania. I think
in Pennsylvania they have held that where the initialing was d<»ie with a lead pencil,
and the requirement stated that it should be done with mk, it was held that that was
not initialing within the law.
Here is the provision: *'No ballot shall be distributed by any person other than
one of the inspectors of election, nor in any other place except witnin the railings of
the voting room to electors, and no ballot which has not the initials of a member of the
board of electors by said member on the back thereof shall be placed in the ballot
box." Now. if one provision of that act is mandatory, as the Rninehart case holds,
then the other provision of the act is mandatory. And I call attention upon that
proposition to page 576 and page 577 of tb 3 record. This is the township of Reading,
page 577, page 576. I will be^in down at the bottom of the page.
Mr. Frear. What is the point you have in mind?
Mr. Fellows. The point is that they went outside and distributed ballots and then
brought them in and deposited them in the ballot box [reading]:
**Q. Were there any electors to whom their votes were delivered by the members
of the board at any other place than within the railing? — ^A. Yes, sir.
"Q. Go ahead and tell tne circumstances of that. — A. Well, our election took place
on the second floor."
The Chairman. Was there any provision in your election law for a situation of
that kind?
Mr. Fellows. No, there is absolutely none [reading]:
"Q. In the town hall? — A. Yes, sir; in the villi^e nail. They could not get up
there, and they had spoken to some one, and asked if there was not some way they
could vote.
"Q. So that question came up before the board? — ^A. Yes, sir; and they agreed,
all the challengers did, and there was no objection made whatever."
So they agreed to take a number of ballots down there and let these men mark them
and bring them back and put them in the ballot box. It is in the same identical
statute that the ballot must be initialed that this provision occurs that ballots can not
be distributed outside. Now, would any court that has the power to administei:
equity be doing an equitable thing by disfranchising the votcors of either of these
townships? I respectfully submit that it would not, and that this committee, sitting
as it is, judges of the election qualifications of the membership of the House, could
not do that thing which in the absence of fraud will disfranchise two of the election
precincts up there. I do not believe that there is an election precinct in the three
election districts — I doubt if there are very many election districts in the State —
where the law is literally and absolutely followed to the letter. So much for Winsor
Township.
We now come to the next precinct, the second ward of Battle Creek. Now, I have
discussed Climax, and the situation in Battle Creek was exactly the same as it was in
86 CLAUDE S. OABNET VB. JOHN M. C. SMITH.
OliiEiax. In Climax they consented that the ballot box should be opened and the
ballots counted. In Battle Creek they alleged that there was absolutely no power
to correct this mistake.
Now, did one of these files come over with these blanks in it. Judge Post?
The Chairman. Well, they were here. I do not think any bhuik ballot is here.
Mr. Fellows. I mean the returns. The papers that constitute the returns.
Mr. Carney. There is no blank official ballot in any of the returns. There is a copy
of the instruction ballot somewhere, a yellow ballot. It is impossible to get one of
the originals. This is a sample.
Mr. Fellows. Now, you will see there is returned a statement book, poll book, and
tally sheet book. These are returned — ^before I take that up last there ma^ be some
confusion there because I do not know but counsel may cite some authorities — some
holdings of our supreme court that the board of supervisors of a township acting as
county canvassers upon a local option election can not send back and have returns
corrected. Ihat is. by reason of the fact that this book is not returned in a local
option election. 1 may say that our courts have held that the board of supervisors in
a local option election can not ha\e the returns corrected by the inspectors.
Mr. Frear. Please name the particular book, so that we can have it in the record.
Mr. Fellows. The tally sheet. It is not required to be returned under the local-
option election law. I do not know why it is they keen making mistakes over in
Hattle Creek, but we had this question once before, and I held under the local -option
law that we could not send out and have the returns corrected, although it was an
apparent mistake, and I held that this latter opinion was not promulgated, although
the other opinion was promulgated; that they did have a law to go into court in other
canes and have mistakes corrected. That is under the local-option law. and if you will
make a search you will find some decisions where it was held that under the local-
option law election returns can not be gone back of. But under the general election
law, BtH'tion 239 of this pamphlet, it is provided [reading]:
'*(239) Sec. 3666 (sec. 4V The said board shall then proceed without delay to can-
vass the return of votes cast for all candidates for office voted for and all other ques-
tions voted on at said election^ according to the returns filed in the office of the county
clerk by the several boards of election inspectors of the various voting precincts in
the county, and the returns or tally sheets filed with the board of canvassers by the
central counting board in counties where a central coimting board is provided for
counting the ballots cast in said county or any part thereof in lieu of their being
w)unted by the election inspectors of the voting districts. If it shall be found upon
the rxmvening of said board of canvassers that the returns from any of the boards of
election inspectors of the several election districts, or the returns of such central
counting board, are missing, incomplete, or incorrect, or for any other reason it ij»
found necessary, then said board of county canvassers shall have power to adjourn
from day to day until said returns shall have been procured or corrected. Said board
of canvassers are hereby empowered to summon the person or persons having the boxes
containing the ballots cast at such election and the keys and seals of said boxes, or.
having such returns or the poll books or tally sheets used and made at such elections,
to brin^ said boxes, keys, seals, returns., poll books, and tallv sheet^s before said board,
and said board of canvassers are authorized to open said boxes and take tlierefroni
any books or papers bearing upon the count and return of the election inspectors of
such election districts or the returns of such central counting board, but they shall
not remove or mark tlie ballots therein."
Mr. Fellows. This situation arose in Battle Creek. I have here, first, the tally
book that shows the number of men who voted at that election, and in Battle Creek
that tally book showed that 375 men had voted; that was returned and was before
this board.
They also had the ballot statement book, which showed that the presidential elec-
tors received 374 ballots; that is. the combined vote on the presidential electors was
1 short of the number of men who had voted. That showed that the ballot cast from
governor down, the total vote was 114 or 115 — I am not sure — ^the papers are correct as
outlined in our brief. Thev found, in other words, that they hau not nuide a return.
Then they took this tally sheet, and this is what the county canvassiiig board had a
right to do, and they showed u|)on the tally sheet all that has been tallied, and it was
found, as a matter of fact, that none of the candidates had received credit for the
straight votes cast in the precinct, and as it affecte<l the parties to this contest the
returns show that contestant had received only 23 votes and contestee had received
31 votes out of a total of something like 375. They of necessity knew there was a
mistake, and Carney came there and proteste<l about their right to liave that corrected.
The inspectors came in, and 1 challenge your attention to where they made their
first return, and they made the correction. They saw upon the back of the bundle
CLAUDE S. CARNEY VS. JOHN M. C. SMITH. 87
of ballots— they did not open up the ballots, nor did they count the ballots — this is
for the correction of a patent mistake — they saw there was on the one bundle the
figures 66 ** R. Straight, and upon the other bundle were the figures 38 *' D Straight?
thett had not been counted, and those were all certified to and put in the original votes,
Mr. Carney protested that and Mr. Smith was advised of it, and then they subpoenaed
in these men and women, who (rame in and said, " In that ballot box there is a state-
ment of the result of that vote. I made that memorandum," and they went into the
ballot box and found that statement, and he was required to take a blank tally and go
into another room and make a statement in, I think, the records show, a certain num-
ber of minutes in which to make a correct statement of what the vote was; and he went
in there, or this board of inspectors went in there, and they came back in return and
showed just exactly what the vote was, and it corresponded to a dot with the figures
that had been put m in red ink the first time.
In other words, there was a mistake in making the return under the local option law,
and, as I say, counsel may come and cite the local option case, or if you make an inde-
pendent search you may find this local-option law in which the court has held and it
was held in the Calhoun County case — this same county — that the board of super-
visors could not call in the inspectors and have the returns corrected, and in that same
case the old law in the City of Battle Creek, where the mistake was patent, the board
of supervisors was the proper tribunal. I did not sav that in that opinion, but in
another opinion, which I think was not promulgated oecause of the fact that in the
meantime thev had started a suit in court; I did hold that they did have the right
to bring their bill in equity and have the mistake corrected.
The way this thing arose occurs in the testimony of Ray Hart, which is found upon
page 443. I will not stop to read it, but it showed that Ray Hart was the county clerk
at this time. I think Mr. Smitii read this e\'idence substantially and challenged your
attention to it in the record [reading]:
"Q. What exhibit is that?— A. It js marked 'Exhibit 41.' And one tally sliee^
marked 'Exhibit 42,' and a statement book marked 'Exhibit 43."
"Q. Witness, did you examine those returns before the board of county can-
vassers met? — A. I did.
"Q. Did you discover any discrepancy in them; if so, what? — A. I did.
"Mr. Adams. Wait a mmute; I object to that as incompetent, irrelevant, and
immaterial, and the returns speak for themselves.
"The Witness. I discovered that the straight vote on each an\l every political
party outside of the presidential electors hadn't been figured into the results of the
various candidates of each political party.
"Q. Beginning where? — A. (Witness refers to book.) The governor. I think, was
the first.
"Q. From governor down, was it? — A. Yes, sir; each political party.
"Q. When the board of county canvassers convened, did you call their attention
to that discrepancy? — A. I did.
"Q. What IS Exhibit 44? — A. The poll book from the second precinct ot tlie second
ward.
"Q. By that poll book how many votes were returned as having been cast in that
pre(unct? — A. Three hundred and seventy-five.
"Q. How many votes were shown by Exhibit 42 to have been cast for tlie presi-
dential electors, the totals?— A. I will have to figure that.
"Q. Doesn't the book show? Take the Republican.- A. The tally slieet or
Exhibit 42?
"Q. From tliem does it appear how many votes were cast for President?- -A. For
each political party, but not collectively; 1 will have to figure that.
"Q. Give us tliat.— A. Collectively?
**Q. Yes; how many 'for the Republicans and Democrats, one elector for each
political party, the highest number anyone received? -A. Ninety-six is the highest
there and 57 is the highest there. For ink}rmation, may I ask, do you want thi^
question answered the total number collectively or the total number of each political
party — the maximum number of each political party?
"Q. The maximum number of each political party? — A. For the Republican
electors, the hijj[he8t number was 96; for the Democratic electors, 57; the Prohibition
electors, 4; Socialist electors, 108; Socialist Labor electors. 18; National Progressive
electors, 91; a total of 374."
That substantiates that just exactly as I have stated it. They found the vote for
presidential electors to be 374; tliey found the number of men who had voted to be
375; they found tJiat the vote returned was only about, I think, either 114 or 115,
commencing with governor down, and the provision of the law expressly permits
this to be done, and expressly permits the use of any papers, but is (fesigned to pre-
88 CLAUDE 8. GARNET VS. JOHK IC. G. SMITH.
vent a recount under this statute. If they want to have a recount — and I doubt
very much as to whetlier a concessional re(x>unt could be had even under the stat-
ute—they take another section, but this section permits the correction of a palpable
error. There was a palpable error in Battle Creek, and there is not any question about
it. The vote was 200 votes deficient on all the officers below presidential electors.
They sent these inspectors in there, and these inspectors appeared here in this record.
They are apparently clean men. and there does not seem to be any question about the
actual fact of a mistake having been made, and that mistake ought to be corrected.
Mr. Frear. How did that error first appear — when they first sent that in?
Mr. Fellows. It appeared when they first sent it in from the return for all below
the governor or all below the presidential elector — just the split vote.
Mr. Frear. Where does that appear?
Mr. Fellows. That appears in the testimony
Mr. Frear. WTiat record does that appear iii — ^the tally sheet?
Mr. Fellows. It appears in the tally sheet; that i^, just the tally of the split vote.
Mr. Frear. Nothing was left out of the envelope when sent in?
Mr. Fellows. EverN'thing was there.
Mr. Frear. Another question, if you will pardon me, right there: Mr. Shields made
a statement to us that was rather involved on the position of a Congressman; that is,
that there is no remedy that he has under your statut-e, excepting as he may bring
it in this forum. He has no right to appear in court.
Mr. Fellows. The court held in the MacDonald ca.se that he was without remedy
in the State court and that he mast bring it here.
Mr. RoRCHERS. I would like to submit a proposition to you that came ap the oth<jr
day — 1 do not remember whether you were here or not — when these enveiooee were
brought in here; we examined this printing in the upper left-hand corner in this way,
and 1 stated to Judge Elder that it was contrary to the law. I would like for you to
examine it and answer the question whether, m your judgment, that complies with
your election law.
Mr. Fellows. You mean the instructions or the act?
Mr. Borchers. I mean that printing.
Mr. Fellows [rcjading]: *'This enveh)pe contains election returns as follows: One
(»f the original tally sheets, 1 of the tally b(X)k8, and 1 of the statement of the vote that
resulted from th^ elect ion held at Grand Ledge in the second ward of Eaton County,
State of Michigan . "
In what regard do you criticize it?
Mr. Borchers. Do you think that comnlies with your laM's — the instructions to be
followed with respect to the statement ana the tally sheets, etc., after the election?
Mr. Fellows. Yes; I think this is for the countv clerk. I think the township clerk
must put iu
The Chairman. Should not each book be sealed in a separate envelope?
Mr. Fellows. Oh. no.
Mr. Borchers. I brought that up the other day, and we decided it should be, and
I want to read thin law a little bit. if the cliairman will permit.
Mr. Fellows. That is not the way we constnie it either.
Mr. Borchers [reading!:
" The in8pect^)r8 shall then prepare a statement of the result in duplicate, showing
the whole number of votes cast Tor each office, the names of the persons for whom
such votes were given, and the mimber each person received, in which 'statements
the whole mimber of votes given for each office and the number given for each person
shall be written out in words at length. Such duplicat<^^ .stjatements. when certified
by the inspectors and duly signed shall be delivered to the township or city clerk
and shall by .<^aid clerk be* within 24 hoars after the result is declarea, delivere<l in
person or immediately forwarded by registered mail, one copy to tJie board of county
canvasst^rs in care of the judge or register of probate, and the other, together with one
of the original tally sheets, to the county 'cleric, which said statements and tally sheets
shall be placed in separate envel()i)eR and sealed by said inspectors before their de-
livery to the township or city clerk."
Mr. Fellows. The way that is carried out in our State — the question never has
been raised in our State — these envelopes are prepared by our secretary of state under
his instnictions and direction. The way we figure that is, that one set of these papers
shall go in one envelope and another set of them shall go in another envelope. One
envelope is addres,sed to the county clerk, at the county seat, and the other envelope
is addressed to the board of county canvassers, in care of the judge of probate or tne
probate register.
Mr. Borchers. This says they shall be placed in separate envelopes.
Mr. Fellows. We never construed it that wav.
CLAUDE 8. CARNEY VS. JOHN M. C. SMITH. 89
Mr. Smith. There were two returns, one just a facsimile of the other — another one
just like this in a separate envelope — that goes to the probate court, and this one to the
county clerk. They are in separate envelopes.
Mr. BoRCHEKS. It further says that said statements and talty sheets shall be placed
in separate envelopes and sealed by the inspectors.
Mr. Smtth. Tally sheets?
Mr. BoRCHBRs. That they shall be placed in separate envelopes.
Mr. Fellows. If you should construe the law that way, there iras not anybody
elected in Michigan at that election.
Mr. BoROHBRs. That is about my conclusion.
Mr. Fellows. There was not a county in the State of which this same thing was not
true.
Mr. Stephens. I do not think that was the intention of the lawmakers.
Mr. Frear. That is, two separate envelopes.
Mr. Fellows. Our construction of it is that each separate envelope contains the
same thing, one addressed to the county canvassers and the other to the county clerk.
The Chairman. They use the plural of the word ''statemeat" there — statements
and tally sheets shall be placed in separate envelopes.
Mr. Fellows. You mean to say the construction our election officials have to put
upon it.
Mr. Stephens. I think that is the proper construction of it, with all due respect to
Mr. Borchers.
Mr. Borchers. I think it is wrong. The construction is that one is mailed to the
probate court.
Mr. Frear. One set of papers.
Mr. Borchers. And then it says the other to the county clerk, and then it says each
shall be in a separate envelope — the one that goes to the county clerk.
Mr. French. I think botn the contestee and contestant will agree that that is
not the meaning of the law.
Mr. Fellows. Yes; I think we will.
Crentlemen, I have taken up and discussed each of these precincts that are involved
here. I said on the onset that I did not think that it made so much difference whether
the strict provisions of the law of Michigan were adhered to or not, because there were
mistakes made in the various precincts in this district, as I think there were made in
other districts, and that a strict construction would give Mr. Smith here, as figured out
in our brief, something like 400 plurality. We have proceeded, however, upon the
theory, or at least Mr. Smith has, th&i a seat in Congress carries with it a degree of
honor. I wanted to come to Congress 20 years ago, and I had a notion that it was an
honorable seat, and that a man that was not chosen by his people, his constij^uents,
could hardly feel that he was filling that seat with honor to himself and credit to his
people, and Mr. Smith proceeded upon the theory that if the people out there had
elected him he wanted to retain that seat, and if the people had not elected him he
did not want to retain that seat. There is in this case irom beginning to end — an
examination of the record will not disclose that there was any fraud perpetrated in
this contest^-upon either side — no actual fraud.
The question arises as to whether this body, sitting as a tribunal with power to
administer either the strict rules of law or equitable rules, are bound to follow the
holdings of the Michigan Supreme Court in the Rinehart case and in some of these
other cases.
I want to quote what was said in the caae of Lynch r. Chalmern, in the contest in
the Forty -seventh Congress, volume 2 of Hinds' Irecedenta, at section 959 [reading]:
'*It is seriously contended by the contestee that the decision of the Supreme Court
of Mississippi construirg the sections of the election laws of that State ought to be fol-
lowed by Congress, and that it is against the settled doctrine of both Congress and Fed-
eral judiciary to disregard local laws. This is too broadly assertive and can not be
maintained.'^'
Mr. Stephens. WTiat is the page?
Mr. Fellows. Forty-three of our brief.
Mr. Stephens. Thank you, sir.
Mr. Fellows [reading]:
** * * * The rule as to all other questions is well stated in Township of Pine
Grove v. Talcott (19 Wall., 666-667) as follows: 'It is insisted that the invalidity of the
statute had been determined bv two judgments of the Supreme Court of Michigan and
that we are bound to follow tfcese adjudications. With all respect for the eminent
tribunal by which the judgments were pronounced, we must be permitted to say that
they are not satL«»factor>' to our minds. The question before us belonr^s to the general
90 CLAUDE 6. OABNEY VS. JOHN M. C. SMITH.
demand o£ jurisprudence. In this claKu of cases this court is not bound by the juiig-
ments of courte or statutes where the ca^e arises; it most be heard and determined for
iteelf/
"There is cite<l another reason why Congress should not be bound by the decisions
of State tribunals in regard to the election laws, unless such decisions are founded
upon sound principles and comport with reason and justice, which does not apply to
the Federal judiciary, and it is this: '£verv State election law is by ^e Constitution
made a Federal law where Congress has failed to enact laws on that subject, and it is
adopted by Congress for the purpose of the election of its own Members.^ To aay that
Congress snail be absolutely bound by State adjudications on the subject of the elec-
tion of its own Members is subversive of the constitutional provision that each House
shall be the judge of its own Members, and it is likewise inimical to the soundestprin-
ciples of national unity. We can not safely say that it is simply the duty of the noose
to register the decrees of State officials relative to the election of its own Memb^.
* * * Election laws are or may become vital to the existence and stability of the
House of Representatives, and to hold it must show itself open to the natural limit of
investigation along the question as to whether an election has been conducted accord-
ing to State laws as interpreted by its own judiciary would be to yield at least a part
of that prerogative conferred by the Constitution exclusively on tiie House itself:"
Mr. Fellows. And then it is said [reading]:
' ' The report of the committee makes this further suggestion :
''That by adopting the machinery of the State to carry on congressional elections
this House stanas in the nature of an appellate court to interpret these election lawp;
that it ought not in thfs view to be bound by the decisions of tlie State courts at all,
unless the reasons ^ven by them are convincing to the judicial mind of the House
acting in the capacity of a court."
Recently you had a question up here from the State of Michigan, where there was
absolutely and could be absolutely no question as to what the law of the State of Michi-
gan was. I refer to the Young-Mac Donald contest, and in the report of this same
case, found on page 8 of that report [reading]:
Following that upon the floor of me House it was said by Judge Crisp, and the doc-
trine laid down by nim is the doctrine we are asking shall be applied in this ^ase. In
his conclusion he said {reading]:
Then it is urged upon you that you are bound to follow the Michigan rule. I say
to this committee, with all due deference, that this committee, if it follows the Michi-
gan rule, dow not follow the rule laid down by it in the MacDonald case, and I am
asking this committee to follow out the line that was laid down by Judge Crisp and
adopted by the House with, as I understand it, but five or six dissenting votes.
I desire at this time to personally thank each and every member of this conmuttee
for the courtesy that they have extended to me and have extended to both sides.
I think I can speak for both sides. I used to think sometimes possibly after a man
got in public office he was a great deal of a partisan there if he was before. In the
State of Michigan I have had to deal with some Democrats, and I am willing at this
time to go upon record slg saying that the Democratic governor of the State and his
appointees have w^orke*! in harmony with the Republican officials of the State, and
I have found Democratic and Repuolican officials alike trying to find out where the
right lay and then do the right thing, and I say to this committee that that is all.
upon behalf of the contestee, that we ask, and that is. if you find the right thing and
do the right thing-^and that can be but one thing — ^and that will bru^ aside tech-
nicality, and keep in this House the man whom the- people up there b> their honest
votes have elected
Mr. Shields, Mr. Chairman and gentlemen of the committee, I desire to take but
a very short time, if T may, in answer to the argument of my learned friend, and may
perhaps ask the indulgence of the committee to listen to Mr. Carney somewhat on
certain facts that have been related here.
I confess that I have not the possession of the facts that he has, he having been pres-
ent at all times, and if I may split what little time there is with him, I will feel gratdul.
I will try to be short in my reply.
I think I am perfectly justihea in calling the attention of the committee to the fact
that the legal propositions which we advanced in the opening of this argument have
been entirely rati lied and accepted by contestee. We certainly have not listened to
the learned discussion of our good friend, the Attorney General of Michigan, and the
attitude that he has taken in nis argument here without all coming to the conclusiou
that the legal propositions w^hich w^e advanced to you in the beginning are the law of
Michigan and is the law which you should follow, because if I can understand the
English language, his argument to you is not what was in the brief, not anything that
was presented to us .so that we may come prepared upon the line of argument that he
OI-AXJDE S. OABNEY VS. JOHN M. C. SMITH. 91
was to follow, but is now an acceptance of our law, and the claim that certain pre-
cin(;t8 to which you apply the law may be thrown out because it is the law, and certain
Oliver precincta favorable to you we shall apply the same rulings to, and these should
be thrown out.
Now, gentlemen, 1 want to be perfectly fair about it. The law in the c^ase that I
cited is just as applicable to the Sunfield case to-day as it was last Saturday. The law
which I applied to the Winsor ballots is just as applicable to-day as it was last Saturday.
The law of Michigan is just as applicable to the second ward of Charlotte, where the
soliciting was such that in answer to a query of "\Miy you are doing this^" the
reply came, " What are you going to do about it?" It is just the same law applicable
to the third ward of Cliarlotte, where a candidate for circuit court commissioner,
John C. Nichols, acted as an inspector for a while. It is the same law to-da^r that it
was last Friday, when we started, and I wish to sajr frankly that if counsel will show
or the members of the committee find any precincts in this third congressional district,
in which the same condition existed as was shown in the cases or authorities we have
presented, you should throw them out, no matter whom they hit.
We are standing before you fairly and squaiely upon the propositions of law, as
advanced by us. We are not asking you to apply them to us, and not apply them to
anybody else. We have presented to you with the utmost care the facts as they
existed in Sunfield, as they existed in Winsor, as they existed in the second ward of
Charlotte, and the third ward of Charlotte, and in Battle Creek, in which there is legal
argument; and in Climax, and the facts we presented and the law we presented are
now uncontradicted.
The only answer is, ''Let us go to some other ^wnships, and you suffer as much
as we do." When you go to those townships, you must take the same law with you.
You must apply the same law there as you have in t^ese districts and in these pre-
cincts; but you must apply it to the facts that are found there. You must not carry
into the precincts facts from Sunfield or facts from Carmel or facts from Charlotte.
You must apply the law upon the facts as they are in that place. We will devote a
few minutes to some of those facts.
We stand, as we did the first minute when I uttered the first sentence before this
committee, which was, that we stood upon the election laws of the State of Michigan as
construed by a Michigan Supreme Court, and upon the precedents of the House that
they had, following the State law. Counsel have read, if you please, some of the
case of Lynch v. Claalmers, 2 Hinds', page 959. I want to call the committee's at-
tention to the same case, and I wish tne record to show the citation is not ^ven to
Hinds' Precedents^ 272, the case of Lynch v. Chalmers. If you please, I thmk that
the entire proposition that is now before this board is the most carefully covered and
the most carefully analyzed and most carefully considered in that case of any which
I have found. And, what do you find? You find a tremendously long majority
opinion, set out almost in full by Hinds, and the entire time is taken up in dis-
tmguishing and showing that a certain decision of the State Supreme Court was
obiter dicta, as to the real question, and that it did not apply, and that because it
was obiter dicta we are not refusing to follow State law wnen they come to the de-
cision. The minority report in the same case, if you please, and you will find a
most perfect analysis. You will find there that the proposition that the House has
established a precedent of following State laws and decisions of the State supreme
courts is unassailable.
I really think, gentlemen of the committee, that the citation in c^ounsel's brief
must be wrong, because the case is covered in a very voluminous way beginning on
the bottom of page 263, Mississippi case, Forty-seventh Congress. The case is actu-
^ly in 2 Hinds, section 959. I understood your quotation to be page 559, and I
quote from the minority views, and I will say that it is the minority views that have
been followed and the difficulty with the majority report in that case was to show
that the case was not binding, and therefore aid not have to be followed.
** A question whether the constitution of the State of Iowa —
And then they quote a number of cases and quote them as precedents, holding
exactly the same wa>r. I do not care to take the time to read it, but I know that no
member of the committee will say that the House has not established that precedent,
at least until he has read the authority thereon.
There can be no question, as I said in the beginning, that that proposition was
squarely up to this committee in that case. There can be no question, if you please,
in my mina about w^hat the precedent has been in the past. It is in the power of the
House to say whether they followed that line of precedents or not.
. The Chairman. Do you think we followed the decisions of the Michigan Supreme
(,^ourt in the MacDonald case?
f
92 CLAUDE 8. GABKEY V8. JOHN M. C. SBOTH.
Mr. Shields. Unfortunately, aa I look it over, I do not find that the decisions of the
supreme court were particularlv considered or any attention paid to them in the
hifltorv of that caae. I find in the report — it mieht have been before the committee,
Mr. Cnairraan, but in the resolution and the preliminary statement of facts I think I
am fair in saying that the committee evidently came to the conclusion, because of the
waiver of Mr. Young himself, and because of the speech he made in the House at the
time of his resigning, that there were 458 votes actually intended for and cast for
MacDonald. I nave been able to find, but I have not been able to look ezhauslibly
into where the Question of what the Michigan court- had held or had not held. I mav
be mistaken. You gentlemen may have composed that committee, and you woulj
know the things that moved you in coming to tnat conclusion.
Mr. Stephens. When Mr. Young made his speech of resignation he stated that he
believed that these votes were intended for MacDonald, but that under the laws of the
State of Michigan the>r could not be counted for him.
Mr. Fellows. He cited the case of Tinsdale.
The Chairman. They cited the case of Cicotte.
Mr. F'bllows. The Cicotte case follows the Tinsdale case.
Mr. Stephens. I know that for 70 or 80 years there had been an unbroken line of
de<*isions that votes of that character could not be counted.
Mr. BoRCHERS. There was one dissenting opinion in that Cicotte east*.
Mr. F'bllows. That was in the Tobey case.
Mr. Shields. I just want to call attention to the fact that it is only fair to take the
j>o8iti(>n of counHc»l as it has come here. See their brief, take the conditions that
existed and apply the same law, and we have no quarrel with that law. If the facu<
warrant the application of it in throwing out the districts that is what this committee
must do. Wp both agree now what the law is. and it is therefore merely a disctn'ery of
whether the facts in each district justify the application of the decisiims of the law of
Michigan sufficiently to throw them out. I am just going to call attention
The Chairman. There is only this difference between you, you insist upon our fol-
lowing strictly the decisions of the Supreme (^ourt of Michigan in applying the elec-
tion laws, while according to the other gentlemen we are not l)ound to do that; but if
we may do that, we must go further and we must take into consideration all precincts
which have been brought before us by the amended brief.
Mr. Shields. I do not think we differ on what their attitude is at all. They simply
say— you have stated it as fairly as I could state it. I^et us see where that will bring
us. I have covered in my original statement all of these precincts based upon the
assistance to voters where there was no soliciting, drawing a distinction like that in
the third ward of (^harlotte where assistance was given but in connection with solicit-
ing that under the McQuade case would be absolute fraud, and in the other districts,
where there was merely the instruction of a voter who had not taken the oath. That
is the distinction in the case that is laid down. I want to call your attention to three
precincts which counsel named this morning, if I remember correctly, should apply
to Albion 2 and Albion 4. which was withdrawn. Is that correct. Mr. Fellows?
Mr. Fellows. I think I was mistaken about that.
Mr. Shields. And the Kalamazoo, the seventh precinct. I want to call your atten-
tion to record, pages 478 and 479. as to Albion, second ward. The question in that
case and objection that he has is that the returns seem to be signed by five inspectofs
or five officials without designating their title. The testimony seems to show that
there were six inspectors, as they are called. Now, the board has to consist of four.
In addition to that there are two gatekeepers: in addition to that, in most cases.
th/Bre is at least one additional clerk, who merely does tallying in some of the wards
he has called attention to.
The Chairman. What does the law provide there shall be?
Mr. Fellows. Four. Of course, the city charter may change it.
Mr. Smith. The city charter is read in here.
Mr. SniKiDR. The city charter provides that there shall be four inspectors. The
others should not be called inspectors, and perhaps should not )ye sworn in as inspec-
tors. The test, however, in all of these, gentlemen, is to look into the facts and see
if, while called '^inspectors" when sworn, there was an additional man acting as official
on that lK)ar(l; and if an additional man. did any of them except the proper ones, per^
form any duty required to l^e performed by an inspector. There is the difference.
Take, if you please, in the second Albion — I read from record, page 478 [reading];
"Q. I call your attention to the vote on Congressman for the third district. I wish
y(>\i would read into the record what John M. C. Smith and Claude S. Carney received
there.- A. John M. ('. Smith in words 'seventy-nine' and in figures *79'; Claude S.
Carney in words 'one hundred and twenty-six' and in figures '126.'
GXJIUDE S. CABN£Y VS. JOHN M. C. SMITH. 93
"Q. The other statement hook agrees with those figures; look at it. — A. Yes, sir;
they are the eame.
"Q. I show you Exhibit 68. What is that? — ^A. The poll book of the general elec-
tion held on Tuesday, the 5th day of November, A. D. 1912, in the second ward of
the city of Albion, county of Calhoun, State of Michigan.
"Q. Turn to where the officers were sworn and tell how many inspectors were
Bwom in there that day. Uow many signed the oath of office as inspectors? — ^A. Six.
**Q. Six inspectors? — A. Yes, sir; do you wish the balance of them?
"Q. Yes. — A. Charles S. Loud was put on as an extra man for the amount cf work
to be done that day. After the voting was all done and the polls closed, because he
had other business, or something of that sort, we excused him.
"Q. He never signed any of the returns? — A. No, sir.
"Q. How many clerks did you swear there? Did this man Loud act as inspector
during the whole day until you quit and the poPs closed at 5 o'clock? — A. Yes. sir.
'*Q. Then you had six inspectors during tne election? — A. I don't know wnether
you would call them all inspectors or not.
'^Q. It shows they were sworn as inspectors, does it not? Look at the oaths of
office and read the names of the inspectors as they appear in the book. — A. (reading):
rles S. Loud.' IIow am I g( '
to know who wrote that 'inspector' over that word * clerk'? Somebody erased * clerk'
'Charles H. Baker, H. C. Nelson, Otto Conrad, Charles S. Loud.' How am I going
and wrote in 'inspector.'
"Q. Read it as the bcK)k appearn. — A. I will explain here by saying some one has
drawn a line throuch the wora ' clerk ' and written in ' inspector. '
"Q. That is on tne pa^e of the oath of clerks? — A. Yes, sir; some one has drawn a
pen through that and written in 'inspector. ' William Bemer's name is under that.
"Q. What is the next one? — A. I don't know whether I signed that before * inspec-
tor' was written in there or not.
"Q. You would be an inspector, being the supervisor? — A. Yes, sir. The next
is Frank Laberteaux. The word 'clerk' has a Ime drawn through and the word
'inspector' written over it.
"Q. Was Laberteaux an inspector? — A. He was appointed election inspector by
the council.
"Q. He signed this as inspector, as it now appears? — A. Yes, sir; I don't know
whose writing that is nor when it was done.
"Q. Ig that all? — A. As it appears on the book they are all sworn in as inspectors.
"Q. Yourself and Laberteaux were actually inspectors? — A. Yes. sir.
"Q. Then, more than one man swore you all in as a notary public? — A. Yes, sir.
"Q. Read that oath, what you signed. — A. (Reading:)
" 1 do solemnly swear that 1 will support the Constitution of the United States and
the constitution of this State, and that I will faithfully discharge the duties of the
office of clerk of this election held on Tuesday, the 5th day of November, A. D. 1912,
according to the best of my ability.
" 'Taken, subscribed, and sworn to before me this 5th day of November, A. D.
1912.
" 'R. McCuTCHEON, Notary Public.'
"Q. Nobody signs there as clerk; nobody takes the oath as clerk? — ^A. No, sir.
"Mr. Frankhausbr. Apparently there was a clerk sworn that did not sign.
"The Witness. It would look as though some one filled it all in there and nobody
signed it; the notary public signed it in the wrong place. No one signed it there.
. "Q. Did you have anyone except the names you have read on the board that day
as clerks or otherwise? — A. No, sir."
In the second ward, Albion, the record then shows, without question, that even if
they called them inspectors, they only had the right number oi officials, that being
the clerk, that noboay else acted as inspectors, that nobody touched a ballot, that
nobody handled them, that nobody did a thi^ at that election except the right
number of officials, although perhaps one or two of them were wrongly designated.
Mr. Frbar. He says they had an extra inspector, but may have muspoke himself.
Mr. Shields. 1 can only construe from the language. He called all of them officers;
he called all of the officers inspectors, and that he had an extra man, because he prob-
ably understood there should nave been four, which in effect made five.
Mr. Frear. They expected to have extra work there.
Mr. Shields. Extra help.
Gentlemen, those are the facts; the rest, of the history is there. If — and I state it
frankly — that is a parallel case, set forth in any case which we have cited for you, then
you should apply it. We do not want to back away from the law nor back away from
our position, because we think it is the correct position, in accordance with the law.
94 OIAUDB 8. OABKSY V8* JOHN M. C. SMITH.
If that convinces you upon those tiictfi, act on them. It is the only thing that you
<'an do.
Let UB now come to Albion, fourth ward. I understand that that statement that
you made as to that is expressly withdrawn?
Mr. Fellows. Yes. I marked that in my record for something else, and that is
the reason of the confusion.
Mr. Shields. So that the only precinct specifically disagreed upon by counsel was,
as I remember, the seventh Kalamazoo, pige 478 of the record.
Some of this testimony is particularly interesting as showing how one man can
either be so muddled up or swear positively from different angles on the same matter.
One man savs he was intoxicated, at least he was not sober. But I am going to
read the record, and then say to you that it is your dutv, as we view it, if these facts
come within the cases the Supreme Court of Michigan nas decided as to the election
laws, apply them. If the contestant should be seated, well and good, in accordance
with those niles; if the contestee should be seated, well and good. But set out the
facts upon which you can properly apply the case.
Let us now read this seventn precinct' of Kalamazoo, w^hich is th3 only remaining
one of the three to which they say these laws should apply.
Mr. Fellows. Pardon me
Mr. Shields. Of this class.
Mr. Fellows. \Miere the women were within the rail, and they were within the
rail in practically every precinct in Kalamazoo. They were unauthorized perrons,
as I view the law.
Mr. Shields. Then. I say, and I might as well cover that right now
Mr. Fellows. I only specifically called attention to this same condition as existing
in other precincts.
Mr. Shields. And I am not going to quarrel with counsel and committee about it.
You can search the record to find out what the women did and what, if anything, hap-
pened to the election or to any official because they were there, and if you find any
tacts that warrant you in a]>pl3ring the decision of the law of the State of Michigan
and the decisions we have laid down, do it. That is a matter that is in your province,
and I am very glad to say that it is up to you to decide, and not to me.
The Chairman. They show, Mr. Snields, where the women were allowed in one
precinct particularly, and they were allowed to take the ballot, hold it, and hand it
to the voters.
Mr. Shields. That is not so, and the record, in my judgment does not warrant
anybody in coming to that conclusion. That, I will confess, to you, in my judg-
ment, would be a most serious condition and would be exactly the same condition as
to the township of Sun field, if those facts existed, and that is what I mean. If you
find as a question of fact in this record that any woman acted in handing out ballots
to voters, then I say that precinct comes under the Sunfield condition, and under the
McCall-Kirby case, because I can not see the difference in designating a person an
instructor improperly and illegally and letting some one do it without being an instruc-
tor. It is in exactly the same class as in the case at Charlotte. If there is a single
precinct, if you please, where Mr. Fellows agrees to apply the law, to throw out Uie
precincts because a woman handled a ballot, because she was not legally there, then
you must necessarily go over to the third ward of Charlotte and say to Mr. Nichols,
"Your ward ^s out;'' and, as a matter of mathematics, sentlemen, we are frank to
tell you that ]ust as soon as you would do that, appl3ring the rule to the two precincts,
and apply identically the same rule, to identically the same conditions, in the same
ward of Charlotte, we gain, however, 47 votes plus 39, making 86 votes, in the third
ward of Charlotte, which would make a difference of 98.
I am frank to say that we are here fairly and we are here squarely. We are people
who think we know what we are standing on, and we know how to get licked and we
know how to win. We want to apply exactly the same rules throughout and follow
the legal procedure and apply the laws that the House has stamped as proper. Follow-
ing the procedure which tne House has said is proper, if we are entitled to the seat,
give it to us; if we are not entitled to the seat do not give it to us, and it does not
make a particle of difference whether the man is John M. C. Smith or Claude Carney,
we are not here talking against Smith ; we are talking nothing but what we actually
believe is a legal right. We either have this seat or we have not got it; and in doing
that we expect you to be just as hard-hearted and just as hard-headed aa you choose.
I will read from the record from page 488, Mr. Chase's testimony [reading]:
"Q. How many were engaged as inspectors of the election? — A. I am not positive,
but I think eight. There were two door tenders or gatekeepers, but I couldn't say
exactlv: I think eight.
•'Q.'inall?— A. Yes, air.
CLAUDE S. CARNEY VS. JOHN M. C. SMITH. 95
••Q. What part did you take? — A. I received the ballots.
"Q. Did anyone initial the ballots? — A. Yes, sir.
"Q. All of them?— A. Yes, sir.
"Q. What was the railing surrounding that booth? — A. The railing that surrounded
the booths?
"Q. Yes: what was it? — A. There was no railing at all. The booths had doors.
We were in a separate room from where the booths were.
"Q. You were in the room where they were initialing? — ^A. No, sir; a separate
room.
"Q. Could you see the booths from where you were? — A. Not without getting up
from my chair. Some of us could. The man that gave the ballots out could, but
the rest of them could not without getting up off their chairs.
"Q. How did they see them, through the door? — A. Through the window —
practically a door — a half window.
**Q. When you gave the ballots to the voter where did he go? — A. I didn't give
the ballots to the voter. The man who did he went in the booth and came out and
delivered it to me.
"Q. By whom was the ballots delivered to the voters? — A. I think W. E. Geary.
"Q. Did anyone else receive l)allots there that day? — A. Only during meal hours.
Q. Who did? — A. I couldn't say. We all took turns at the box.
Q. The whole eight of you? — a! Yes. sir."
Mr. Shields. The only time
Mr. Smith. Read a little further.
Mr. Shields. I am going to. 1 have lots of it to read.
The only time anybody excej^t an honestly qualified inspector took a ballot was
during the meal hour when one inspector was away, and this man swears during this
time the whole eight of them took a chance at it, and yet in the eight were two gate-
keepers who could not leave their place of duty to get into the box.
Now, gentlemen, figure it out. If you think there were eight inspectors there, if
there is any way you can figure it, here are the ^cts; apply tne cases.
The Chairman. What did the other witnesses say in regard to that?
Mr. Shields. I have them here and will read it before I get through [reading]:
"Q. Was there anybody in that booth that day aside from the inspectors? —
A. Well, yes; the city clerk was in there, and the city attorney was in there two or
three different times.
"Mr. Adams. I object to that as incompetent, irrelevant, and immaterial, there
being no allegation of that kind in the contestee's answer that would warrant Uie
introduction of any such testimony under the issue."
He talks of booths sometimes here and he talks of precincts, and this was a city
booth out in the street, in which there was a rear door and front door, and the bootlis
were in the inside. Sometimes that is designated or spoken of as *' voter '' — the whole
thing is a voting booth. Inside are individual booths.
So, when jrou come to determine whether anybody was improperly in there, you
must determine from the langua^ of the witness whether he is a^^mg the general
term, speaking of the metal building or inside where he is voting.
Mr. Fbear. Is there anything in your statute which requires the polling bootii to
be in the same room where the officers are?
Mr. Shields. None that I know of.
Mr. Frear. You spi.ke of the window they looked through;
Mr. Carney. This is described; he calls it a "half window," As a matter of fact
it is a half window instead of a half door. It is described later on in particular. It
was a railing, only it would swing around and open, and they could see everywhere.
Mr. Shields. That is very evident from the following sentence.
Mr. Smith. It says that lio ballots shall be distributed except in the voting place.
Mr. Carney. Only this railing was made i>ermanent, for the purpose of the
election.
**A. (Continuing.) There were several there. I couldn't say just who they were
now, but different ones came into the back door. There is a front and a rear door to
this precinct. I couldn't say now. but several different ones looking after their
candidates there, who had voted and who had not.
"Q. There was nothing to hinder their coming right in? — ^A. No, sir; the doors
were not locked.
**Q. Do you know of anybody aside from the inspectors who handled ballots? — ^A.
No, air; I do not; not at that election."
The same man — and this shows how interesting he gets — over on page 490, the query
is to try to have him identify somebody who had been solicited. He was asked if
they were black or white, and he replied that he could not say.
96 GUkUDB S. CABN£Y VS. JOHN M. G. SMITH.
Mr. Carney. That was with reflpect to being solicited, not instructed.
Mr. Shields. Now, going over to page 489 [reading]:
** Q. During the day? — ^A. Not at that election.
' Q. Do you know a woman named Miss Marsh? — A. Yes, sir.
''Q. Was not she present and didn't she hand out ballots? — A. I may be mistaken,
but it seems to me she was there in the spring but not in the fall — she was there in
the foil, I think.
*'Q. At the November election?— A. Yes, sir; that is when she was there, and also
Mre. Oldfield.''
His testimony is already given that no ballot was handed out except by an inq[>ector.
Now he is asked
The Chairman. This fellow said they had been drinking on election day.
Mr. Shields. 1 will cover that and let a witness speak of it.
Mr. FeLlows. If I may interrupt you
Mr. Shiblds. Surely, you may do that at any time, Mr. Fellows.
Mr. Fellows. The question Judge Frear asked with reference to the room, the lan-
guage of the statute lf>3 in the paragraph in this pamphlet would indicate that the booth
must be in the room where the ballot is deliverea. This is the language [reading]:
*'0n entering the room the inspector having charge of the ballots shall deliver to hmi
one of them, and the clerk shall enter his name upon the poll list, together witii the
number of the ballot given him and on request such inspector shall give explanation
of the manner of voting; if deemed necessary by the board an interpreter mav be cidled.
The elector shall then and without leaving the room, go alone into the boolii, which is
unoccupied, and indicate the candidate or candidates for whom he desires to vote,
as follows: "
And then it say8 how he shall vote, indicating that the ballots shall be distributed
in the same nK)m that the boi>th i^ in.
Mr. Frear. Is there any contention between the parties here as U) whetlier this wbs
the same room?
Mr. Fellows. There is no contention but what it was the same room.
Mr. Shields. It was substantially the same room, connected by a half door.
Mr. Carney. It is a partition, hiit they called it a door — a swinging partition.
Mr. Shieldh (reading):
"Q. They were handing out ballots to iJie voters in tlmt precinct, were they not?
"Mr. Adams. I object to that as leading.
"A. I think — I am not postive — I think that Miss Marsh and Mrs. Oldfield did
old ballots two or three different times and did hand them out for Mr. (leary.
"Q. Was he an inspecU^r? — A. lie was the man that gave out the ballots; yes, sir.
"Q. You say that you finished coimting along about 2 o'clock in the morning?—
A. About that time; yes, sir."
Now, just go to the other page. He has expressly stated that he did not know of
anybody aside from the inspectors who handled ballots. That is a question of fact
for you to measure.
iJet us go over to page 491, the same gentleman still fiunishing the information
concerning this election [reading):
''Q. You said there were eight inspectors? — A. Eight altogetlier, with the gat<»-
keepers or doorkee]>ers. "
He is calling every official an inspector [resuming reading]:
"Q. How many inspectors did you have?— A. I think six in the room.
"Q. You don't mean they were all inspectors, do you? — A. No, sir; clerks, some
of them; 1 will not say whether three or four; I don't know.
*'Q. Three or four inspectors? — A. Yes, sir; I don't know."
From my friend's reading of tlie record you would think there were inapectDnc
sworn there, all handing out ballots. That is the same man. Was he telling the
truth now or was he then, and this is the only question of fact upon which you can
say there was anything irregular there.
I am going to take the liberty of reading
Mr. Carney. What did Mr. Bush testify?
Mr. Shields. Busli swore tliey were not drunk but not sober.
A few sentences further, now, they claim that the precinct should be thrown out
because there were eight inspectors. I have just reiul the testimony. If you find
from those facts that they come within any of me election laws of Michi^^an oi anr oi
the supreme court decisions, apply them. Wa are not going to quarrel with it. That
is fair. I am going to be just as fair as they are. I can use the knife just as rapidly
as they can [raiding]:
''Q. The rest were clerks and gatekeepers?— A. There were eight employed, I
thmk."
CLAUDE S. OASHBY VS. JOHN M. 0. SMITH. 97
I cftll particular attention to that becauee this is the only man who injects Ifn.
Oldfield into the handling of ballots or doing anything [reading]:
"Q. You stated that Miss Marahwas there and Mrs.Oldfieldf—A. I didn't say
Miss Marsh; it was either in the spring election or fall; I don't remember which-
'^Q. You are not sure about that? — ^A. No, sir.
'*Q. You are not sure that either of those ladies were there at the November 5.
1912, election? — ^A. No, sir; I don't know that; I may be mixed up in the spring; I
worked there several times; I don't remember."
And that is the testimony upon which you are asked to thiow out the district,
because of M^. Oldfield being there.
Mr. Fellows. Did not Miss Marsh testify that Mrs. Oldfield took her place on tii»
day of this particular election?
Mr. Shiblds. I will read just exactly what she testified there. We will set them
Just as they are. I have Miss Marsh's testimony, gentlemen, and I will reaa it now,
so that you will not be mixed up about it. Tms record is practically impossible for
anvone who did not go through with it, I am sure.
On page 184 Miss Marsh testified [reading]:
"Q. Do ^ou know Mr. Chase, quite a Jaige man?—- A. He was the one that put
the ballots into the receptacle. I suppose uat was Mr. Chase; 1 didn't know mm
at the time.
''Q. What did you do, if anything, with any of the ballots at any time while you
were there that day? — ^A. I never touched them.
"Q. You didn't touch a baUot?— A. No, sir.
"Q. Didn't handle them at all?— A. No, sir.
''Q. Or have anything to do with them or handle them?— A. No, sir.
"Q. Was there another lady there during the afternoon? — ^A. No, sir."
I obiould read in that connection, as I recall, in another place she said that Mrs.
Oldfield did come to take her place, but she does not state when; and then goes on
afterwards and states that she herself was there during the afternoon. I do not know
what that refers to, unless it is the noon recess. There isthe woman he said handled
ballots, but says point blank she did not. Why did she say that? Let us look at
this just a second.
Anin, on page 185, in answer to a question, she says [reading]:
*'Q. Was there anyone else in there besides the man who delivered the ballots?-^
A. I don't know thcor names.
"Q. They were in there?— A. Yes^ sir; four or five.
** Q. All the forenoon? — A. Yes, sur.
''Q. And in addition to those four or five, did you see a man that was receiving
ballots and depositing them in the ballot box?— A. Yes, sur."
A little lower on the page it reads [reading]:
'* Redirect examination by Mr. Adams:
'^Q. You didn't say anything to any voter about voting?— A. No, sir; certainly;
nothing.
''Q. What, if anything, did you say to any voter during any time you were thei^.
that day? — A. I didn't say anything to any voter.
*'Q. You were simply there so they might see that a woman was there? — ^A. Yes,
sir.
"Q. That was the object of your being there? — A. Yes, sir.
**Q. Did you participate at all in the work of the board there — the inspection
board — that dayr—A. No, sir; 1 did not. 1 went away shortly afternoon and didn't
return.
"Q. You were simply there to look on? — A. Yea, sir."
I want to call your attention to what a witness says in regard to this Chase's testi-
mony, upon whose statements this entire claim is based about this precinct. This is
in the testimony of Bush. I am reading from the bottom of page 513, and carry it over
to the next page [reading]:
"Q. You say that she did not in any way tamper with the ballots, or mark them, or
say anything to the voters, do you?— A. She was a perfect lady; she didn't say any-
thing or tamper with them or say anything to the voters.
"Q. She was a teacher in one of the schools, in the normal school? — A. Her occupa-
tion I am not aware of.
"Q. Was James Chase a member of that board that day?*— A. Yes, sir; he received
the ballots.
''Q. What shape was he in that day?— A. Well, for my i>art, 1 was glad the ladiea
were there.
2102S— 18 7
d3' GLAX7DS S. CABITEY VS; JOHN lS£. C. SMTTH.
"Q. What wae hia condition? — A. He didn't look just tight to me; he was pretty-
windy anyhow.
"Q. Dia he appear to be in any way intoxicated? — A. I should say he was not
exactly Bober."
Mr. Frbar. Whose testimony ie that?
Mr. SHTBLD8. That is Mr. Biiah's testimony in reference to Mend Chase.
Mr. FbiAows. We hare a statute that prohibits having intoxicating liquors at the
poUingplace. I do not know whether that applies where it is inside.
Mr. PiiBAR. That is a question which applies.
Mr. Shields. Do you mean having the whisky inside of the man or inside of the
Mling places? I think there are times at elections where men will get a drink. I
do not know where they get it from.
On page 206, in regard to Geary [reading]:
"Direct examination by Mr. Adams:
"Q. Mr. Geary, you live in the city? — A. Yes, sir.
'*Q. A business man here? — A. Yes, sir.
. **Q. How long have you lived in the city? — A. Thirty years.
"Q; Did you act on the election boand in the city of Kulamazoo on the 5th day of
November, 1912. at the general election? — A. Yes, sir.
"Q. What board? — A. In the seventh precinct, as inspector.
'^Q. I notice here in Exhibit '96 ^ which I show you, this second certificate there or
oath seems to be si^ed by W. E. Geary, oath of inspector of election; is that your sig-
nature?— A. Yes, sir.
*'Q. The jurat is signed by Benjamin O. Bush? — A. Yes, sir.
**Did Benjamin O. Bush administer the oath to you that day? — A. Yes. sir.
• '*Q. Now, did you know, on November 5, 1912, a lady named Harriet Marsh? — ^A.
Yes^ sir.
. *'Q. W«sshe there that day?— A. Yes, sir.
''Qi While that election was being conducted, or any part of the day? — A. Yes, sir;
put of the time.
' ' Q. I understand that she claims she was there in the forenoon of that day ; whftt did
■he do there that day? — A. She sat inoide, about 3 feet from tlie table that contMii«d
the baliotfe.
''Q. Did she handle or have anything to do that day with any of the ballota that
were used at that election while you were there — A. No, sir.'-'
There is the testimony, and the only testimony as to whether they handled the
Wlots or not. 1 do not desire to question the petition or the amendments allowed
&ere, because as 1 understand counsel now all amendments that have been put in,
which arose in the original petition and as presented by Mr. Smith in his answer — this
particular situation was not as regards Mrs. Oldfield, was not called to anyone's atten-
tion. No testimony was given about it.
Miss Marsh, whom they said had handed out ballots, was brought in axui denied it.
Mrs* Oldfield did not happen to be produced as a witness. Apparently everybody
abandoned it, and in their brief they made no mention whatever of Mrs. Oldfield or
anyone or anything that would tend to let us know any reliance is to be placed on that
bit of hearsay testmiony.
What they did cover in their brief, on page 31, under the heading of seventh pre-
cinct, city of Kalamazoo, Kalamazoo Ooun^, is as follows: I am not questioning it,
sentlemen. We are here to take things as they come up, but I am just saying to you
that you can not base any finding upon Mrs. Oldfield not beinff sworn or any testimony
that would leave any reasonable ground to believe Mrs. Oldfield had anything to do
with that matter. It is something that came up to-day; for the first time has come to
our notice.
I have described the voting place and the booth inside [reading] :
That is the only proposition that was advanced in regud to Misb Marsh for that pre-
cinct. I say that in fairness. If you find in this testimonv the facts that warrant the
belief that Mrs. Oldfield had anything to do there it is within your province to &Pply
tile law, but I have analvzed all that testimony and hearsay statements that Mrs. Cfld-
field was there. The only one that they claimed in the bnef had handled ballots was
cilled to the witness stand, and you have got that proof before you. Gentlemen, is
any reasonable man going to say that under tiie law that precinct should be thrown out
because of Mrs. Oldfield's presence? If you do, that is your privilege.
Mr. Frear. I do not remember that case in the supreme court decisions. Does it
refer to the handling of ballots by those people who were in there?
Mr. Shiblds. Specifically.
CLAXIOE 9. CAEN£Y VS. JOHN M. C. SMITH. 90
Mr. Carnst. That is the ground it is baaed upon.
Mr. Fellows. The opportunity was there. ^
Mr. Shusldb. The opportunity was there, because they were handling the ballots.
That is the decision set out in the brief. These gentlemen are getting weary and so am
I. I want to ^t back to Michigan as quickly as 1 can get there.
I am not going to take anymore time. We have tri^ to come down here and tried to
present this matter fairly. We have presented all the ^cts. You have been very Idnd
to both of us in digging in and trving,to get out of this record what was in it. We have
CBnted to you the theory, we have presented to you the authorities, and we realiae
the power is in your hands.
I am quite sure that you will not pay any attention to an^ statements made by us
which are not borne out by the record. I am equally positive that you will not be
biased by any statements of the contestee nor any statements made by him not borne
out by the record. We have presented a theory to vou ; we have presented these specific
precincts to you that we rely upon, and we have nad the pleasure, no matter how this
contest may come out, of having our illustrious attorney general of Michigan stand
before you and say we were right, and apply it to some other districts that might take
votes away from Mr. Carney. We are rig^t on the law; he has conceded it to >ou. It
is up to this committee to find from the record, if they can, other precincts that should be
thrown out. I say to you that we would be very glad to have you look into it carefully
as to precincts mentioned; if you apply the law there as they ask you to, apply our law;
then you have got to go over without any question outside of tliat the supreme court
passed on and take the third ward of Charlotte and throw that out. When you do tha;|r,
you have merely increased Mr. Carney's standing. The figures will show that.
I personally wiah to thank you from the bottom of my heart for the extreme kindneiB
extended, and I hope if you ever come up in Michigan you Republicans will throw
your i>olitics aside and you Democrats will retain yours and come around and see us.
We will be glad to show you that Michigan extends to you the same couriesiee and
kindnesses that you have extended to us.
Mr. Carney. There are two or three things, Mr. Chairman, if you please, I would
like to suggest to you, in as much as some of these matters that Mr. Fellows now raises
have come up at such a v^ry late hour. I take it that probably he has abandoned
everything in this newly bom amendment excepting the things he is arguing. • I
do not know that that is correct. Do you wish to contend for anything you nave not
argued here, Mr. Fellows?
Mr. Fellows. Mr. Smith has made a statement in the record which shows all points
these amendments apply to.
Mr. Carney. I will spend no time at all telling how nice vou have been to us and
how glad we are to be nere, which is usual at such a time, oecause I know you are
tired and that you will appreciate brevity.
There are several things which have been sprung on us after the testimony was all
in and after the record was printed, or after the briefs were in and after the arguments
were commenced, and sprung on us after our opening arguments were concluded and
after their opening argument was half finished. Necessarily any court — of course
you sit here as a courts-ought to scratinize such a turn of matters very closely, and the
difficulty, of course, now for us is to pick out the facts from a very voluminous record
and apply it. You will notice in this proposition Mr. Smith's statement. In fact,
the amendment is not any amendment at oil, according to the practice of pleadixigs.
It gives us no notice; it is a blank proposition, pure and simple, and gives us no more
notice than the record itself.
So we are but little better ofif. But Mr. Smith made a statement on the record that
certain of these precincts in Kalamazoo County, numbering them second, third, fourth,
seventh, ninth, tenth, twelfth, and fourteenth — they raised the question that Hie
officers of that election were not sworn, as shown by the tally sheets. Now, I challenge
your attention to this fact, as has appeared here m the statute. The tally sheets and
the form books are simply furnished without authority of law. There is no prescribed
form. There is nothing in the statute that prescribes whether the oath shall be recorded
or not. It simply shows that a man that acts as officer of election must take the oath
to do his duty. In every iostance where there is an oath lacking in Kalamazoo County
we supplied the proof upon that proposition, although we had no notice that the ques-
tion would be raised, and, in fact, that we found all through these very books that you
have here, throughout Eaton County, in various instances it turned out that one oath
would be lacking or another, but sometimes we had the information and sometimes
it came out in the evidence that the oath was actually given. So we raised no ques-
tion on it, and we supplied that proof by the testimony of the different people who
administered the oaths. I think the testimony shows that the city clerk went around
the morning before election, where the different precincts were, and administered the
100 OLAUDB 8. CARNEY VS. JOHN M. C. SMITH.
Oftths to nearly all of the people who were to act upon the boards. So that quesdon ii
taken care of.
We will have to concede to our distinguiBhed attorney general a very clever and
brilliant aigument, by means of which he brings into this case all the iir^gularitieB
and argues them all from the same standpoint. We had already discovered in this
case tt^t when he came to analyze certain cases he found that certain different roles
applied, so that when he came to analyze the argument he has made here to-day and
compare it with his printed brief, when he says that it will affect 400 votes, we find
that the laijee majority of those running through the different precincts are those
that were anected by the different inspectors instructing the voter within the booth.
We are agreed upon that, notwithstanding the fact that he has arigued those all as one
proposition. We are agreed as a matter of law, or by quotations ti3cen from both briefe
ancf bv quotations here orally, that where there is no fraud shown that particular vote
shoula be case out and not counted for anyone, and that the result should be found
by deducting those votes proportionatelv. That is one of the thines we are agreed
upon in this case, so that phase of the violations of the election laws of Michi^n which
we have all conceded is not one of the thines that makes void a whole precinct; and
you will find in analyzing this proposition that there are certain rules of law which ^
to the verv heart of our election laws and certain other rules which violate certain
ballots and certain others that are of course merely directorv, and it is only by mixing
all of these rules up in one basket, as it were, and shooting them at you gentlemen that
he arrives at the result that there are about four hundred, or at least enough votes
thus affected, if you throw out dl the i>recinct8 where there is any irregularity at all,
by which they overcome those irregularities upon which our supreme court has spoken
finally.
I want to call your attention to the fact, gentlemen: You will find running through
those statutes that our court has held mandatory a certain peculiar proposition tlutt
affects the three particular precincts that we have called your attention to so spe-
cifically. Sometimes the courts have held statutes mandatory that read something
like this: ** Certain officers shall do so and so " ; and oftentimes they hold that lansiiage
to be directory only, depending upon the character of the work to be performed and
upon the plain intent of the whole statute, read as a \(hDle. In other words, where
the statute says that certain things shall be done by an officer it describes his duty,
and sometimes they hold that that is directory only, and it might be done by a de facto
officer, for instance, but I yet have failed to find a case where a statute has been
enacted which reads that a certain duty shall be performed by a certain officer, and
in addition to that states that this duty shall not oe performed by any other person,
but that there is a unanimous line of opinions in our court and every court, which
provides that that class of statute shall be held as mandatory statutes.
I think I have made that point clear. In that connection, I want to call your
attention to the three statutes that we rely upon in Sunfield.
The Chairman. Has there been anything about those three Sunfield precincts
presented?
Mr. Carney. Yes; and the three statutes apply to Sunfield, Garmel, and Windsor.
So far as Sunfield is concerned, in the first place, the duties of election officers are
generally as outlined.
Those are the three prohibitory statutes, and I want to call your attention first to
the statute as it applies to Sunfield. This does not stand upon any discretionary
statute or discretionary power. There are statutes, of course, which go ahead and
outline the general duties of all the different officers. After having done that, then
the Legislature of Michi^n nicks out the inspector who hands the ballot out to the
coming voter and says this to nim : " No ballot shall be distributed by any person other
than one of the inspectors of elections." So that that comes back to the proposition
that I started out with. This is one of those statutes where the law says a certain
thing shall be done by a certain officer, to wit, an inspector.
He goes further than that and says that his particular duty shall not be performed
by any other officer. How are you going to assume that statute does not mean just
wnat it says?
The same thine is true with reference to the township of Carmel. After providing
that the board snail provide suitable ballot boxes, without any particular further
description, excepting that it has a lock and key, then, bearing upon the meat of all
this, bearing upon one of the essential things of our election, to wit, the secrecy of the
election, they say this: ''The said box shall not be opened during the election,
except as provided by law in cases of adjournment."
That is the noon adjournment that we have already crone through with. In refer-
ence to the township of Windsor, of course, we have thrashed that out time and again.
The statute there expressly provides that any ballot that goes in the ballot box that
GLAXTDB S. OABNBY VS. JOHN M. 0. SMITH. 101
does not contain the initial of the inspector appointed to initial them shall be void
and shall not be counted. So that upon those three propositions there remain in
our courts, or in any court that is construing these three statutes, no power to say
that these are directory only. That is the point I make.
Now, then, so far as the persons who are directed to place the ballots in the box are
concerned, the statute is a little different from that which provides for the person
who is to hand out the ballot. It provides that an inspector shall put them m the
box. It does not say that no other person shall; and that, of course, becomes a matter
for the court to determine just what that section means, whether directory or man-
datory, and the question, so far as I know, has not been determined; but there is
another section, it you please, which goes a little bit further than that. It does not
say that it shall not be done by any other person, but there is one person HaaX the
statute says shall not put ballot in the ballot box, and that is any person who has put
hifl name upon the ticket as a candidate for office; and that is why there seems to
remain no discretion for this court, or anv other, to aav that any ballot placed in the
ballot box by John Nichols could possibly be counted for anyone, because it is con-
trary to an expressed prohibition, as in the other cases, do you not see?
Of course, the object of that statute, and that particular one, it seems to me, when
our courts get to it, will hold to be a mandatory provision; that is, I believe, they will
say that is the first statute that means that nobody but an inspector can stand there
and put ballots in the box, because there again is the real heart of your election law.
For instance, the law says that if an inspector does or does not do certain things he is
Siilty of a crime. Somebody else performs that function, and he does not obey that
w, and he comes in and says, " I was not an inspector of an election. I was simply
aa interloper. That statute does not apply to me. "
And, again, gentlemen, it is not necessarily a question of time or number of ballots
80 much as it is the opportunity. Here is a man in charge of a ballot box, and, not-
withstanding, mv friend's argument, I think you will find that the evidence shows
that he was in charge of the ballot box alone, and in a room separated from the other
room entirely by the booths. The evidence shows that the Democratic challenger
came in there and found him putting ballots in the ballot box, and he did not know
when he started, 'ihe point I make is that it opens a very \idde door. \Miat our
courts will say about it I do not know, but when they find that this man comes within
the prohibited laws, he is one of the persons interested in the election, his name is
upon the ballot, and the statute says he diall not place ballots in the ballot box, I
believe our court will say. and this court will construe that statute fairly, that that
means that the legislature intended that that should be a mandatory provision.
lliere has been something said, and I think, inasmuch as the statement has been so
repeatedly placed upon this record — not that it changes the law of this case one iota,
but lest we get a misapprehension of the facts, and thus perhaps use discretion we
would not otherwise — I wish to now challenge your attention to the true political
description of that board in Sunfield.
Mr. P^ellows, our honored attorney general, took some exception to my questioning
his statement that three of that board were Democrats and one Bull Mooser, and there
was not a Republican on the board. I do not question his good faith, but much as we
admire his ability as a lawyer we sometimes get the facts wrong, and he need not
have been impatient about it. because I know we often find ourselves wrong, and as
a matter of fact all of the statements about this board being in the control of the Dem-
ocrats is something that has grown in the brain of my brothers without getting the
facts from the record. I will give them to you exactly as they are.
Mr. Palmer, the supervisor, was a Democrat. As far as we are agreed I will not refer
to the record. Mr. Bacon, who died before this case was commenced, was also a
Democrat. Mr. Ilager, who my brother says was a Democrat, testified, page 220 of
your record, Mr. Smith, top of the page:
•'Q. You were a Republican at that time? — ^A. I always have been.
"Q. You were on that day, election day, a Republican? — A. Yes, sir.
**Q. You say that Mr. Bacon administered the oaths to the other members of the
election boafd on that day and the gatekeepers? — A. Yes, sir,"
So, you see, Mr. Ha^er was a Republican, and Mr. Mapes was elected by the Repub-
iicana upon a Republican ticket, and I tihink it will be wise for me here to call atten-
tion to the fact, if you get to reading this proposition, if it has any interest at all — and
it seems t^ey must claim it has, because it lias been repeated upon this record ten
times, by actual count — ^you will find he is the son-in-law of Joel Bera. You will say,
"Who is Joel Bera?" And I will tell you in just a minute. Some one said Mapes
was a Bull Mooser. Now, Mapes did not swear to any such thing. He was elected
upon a Republican ticket; he was not a Democrat and never had been. Some one
102 GLAUDB S. CABNET VS. JOHK M. C. SMltH.
heard he had changed to a Bull Mooser. Ha^er always was and was tiien, on ele<*tio&
day, a Republican. So the board was split in two in the middle.
Sfr. Knapp, who came as the regular clerk in the first place, was a Republican.
That, I believe, is not questioned; and Mr. Witherall had oeen a Democrat, but on
page 93 it shows that he had abandoned the Democratic Party, but was enrolled ai a
Republican at that time.
Mr. Fellows. Right in that connection. Did not Witherall testify that the changing
of the enrollment did not change his politics?
Mr. Shields. (Reading:)
"Q. How did you enroll? — A. I enrolled as a G. 0. P.
**You mean as a Republican? — A. Yes, sir.
"Q. Were you enrolled as a Republican prior to the time you acted on that election
board— November 5, 1912? — A. Yes, sir.
"Q. So when you acted on that board, November 5, 1912, you were enrolled as a
Republican? — A. I was enrolled as a Republican.
You say you were enrolled as a Republican? — A. Yes. sir.
**Q. Do you mean you were enroUea as a Republican and a Democratic voter?
"(Objection.)
**Q, What I am getting at is whether you actually changed your politics or not by
the change of enrollment? — A. I have not changed my politics."
I am referring to page 93 of the record.
Mr. Fellows. He was a member of the Democratic county committee of the town-
ship.
Mr. Carkey. He had been, and said he had been dropped. He said so in the re-
cord . Anyway, he was one of those fellows who is one thing one day and another thing
the next. We all see that in every community. At any rate, he was not a member
of the board. He came in later and did not take any oath or anything else, and sat
down and began tallying.
So that you see that you now have the true complexion of that board. My brother
Bays that that shows he was a Democrat. I say to you, I do not care whether he was a
Democrat or a Republican or a Bull Mooser or a Socialist or what his politics, he had
no power nor right to give any legal effect to any ballots passed out. It was abso-
lutely contrary to the laws of the State of Michigan. Is it not remarkable this man
comes the distance that he did to appear as a witness in behalf of the contestee, but
he had charge of that election in that Republican precinct, full knowledge of the
board, half of which was Republican, anyway, but did not even take the precau-
tion to place the challenger to watch him or to watch the election or anything else,
and then he is eager to spread upon this record an answer to a question that no power
on earth can dispute him upon? He swears that he voted a straight Democratic
ticket, in violation of the secrecy of the ballot. Instructed that it was an improper
question and that he did not have to answer, he volunteered to answer in order to
get it ui>on this record for the benefit of the contestee, and I say I am uistified in
challenging this committee's attention to all that took place in the township of Sun-
field and to the testimony of Mr. Say re.
So that it simply reduces itself to'this! I care not what is claimed about politics.
We are all alike citizens before the law and entitled alike to its consideration, but
men who claim one day to be Republican, and Bull Mooser or Democrat the next,
or whatever their claim, I do not contend that because a man is a Democrat he ia
necessarily honest or that because he is a Republican he is necessarily dishonest,
either, in Michigan, but we are protected against those things that the law throws
out to protect us against the evil within out own as well as within the other partjr,
and there can be no such answer as this to a prohibitory statute such as I read to this
committee.
There are a lot of questions that have not been touched upon at all. There is
one thing, I think, in justice to myself and justice to the committee I should call
attention to. I know you are awfully- tired. You have listened to this argument
for 10 or 12 hours and you ought to be tired if you are not. You have us beat if you are
not.
My brothers say they ask the same thing in Battle Creek as I received in Climax.
They are asking the same treatment. Tney are not asking the same treatment,
gentlemen, and I want to call this committee's attention now to the fact that every
conceivable ouestion up to the present hour by every Republican canvassing board
in the third aistrict and by every board of inspectors has oeen determined in favor
of the contestee, in order to enable him to receive the certificate of election in the
first instance.
Let me see what they are. In the first place, he knew when he received that
certificate that the vote in the township of Climax — or ought to have known it — waa
OXAUDE 6. CABNBT VS. JOHN M. C. SMITH. 108
not correct, and yet he took the advantage of it; and the like situation existed in
the city of Battle Creek. Gentlemen, I realize I am a stranger to you, coming
here and questioning the right of one of your fellows. But apply the same rules
to both of us and forget your partisanship and your acquaintance at the same time
and look at the situation that I confronted down there. I went first to Eaton^ as
the evidence shows, to the board of Eaton County, to demand a simple legal right
as provided by the statute. I think I should call attention
Mr. Fellows. What was the politics of the Eaton County board?
Mr. Carney. I will tell you wnat it was, as I understand it. I may be mistaken.
Sometimes we forget these little things. Mr. Brown, the chairman, and Mr. Nichols
we have heard described, were Republicans. Mr. Little's politics you say was that
of a Democrat. I was thinking he was a Bull Mooser. The other gentleman was
a Democrat, chosen by the Republican chairman to fill a vacancy. That was the
complexion of the board, if that has anything to do with it.
What I am getting at is the treatment that the contestant received there. Pag^
345 of the record shows the request that I made there, and I will show you how modest
it was. Fortunately I had it reduced to writing. 1 will read that portion of it with
which I had to do. (Reading:) " * * * November 13, Claude S. Carney, Demo-
cratic candidate for Congress from the third congressional district, personally appeared
before the board and requested the board to summon the inspectors of election of the
township of Sunfield for the purpose of correcting and completing their returns for
said township. * * *."
Mr. Fellows. If you will pardon me right in that connection — and I am reading
from page 63 [reading]:
"Q. To what party did Mr. Brown belong? — A. He is a Republican, I think.
**Q. To what party doea Little belong? — A. I. couldn't answer that question.
"Q. You are a Democrat? — A. Yes. sir: supposed to be.
* * Q. Isn 't it your recollection that Little is a Democrat? —A . I have been told he was.
"Mr. Adams. I move that answer be stricken out as hearsay.
**Q. Your imderstanding was that it was a Democratic board?
**Mr. Adams. I object to what he understood as incompetent, irrelevant, and
immaterial.
"Q. Answer the question. — A. I have been told it was Democratic.
**Q. Was it not your understanding that Mr. Little was a Democrat? Is there any
Question in your mind about his being a Democrat? — A. No, sir; I don't know as
mere is.
**Q. There is no question in your mind about your being a Deniocrat? — A. No, sir.
**Q. There is no question in your mind about the board being Democratic? — A.
Supposed to be."
That was the Eaton County board.
Mr. Shields. Is that the evidence upon which you based your case as to their
politics?
Mr. Fellows. I am willing to take the statement of the member of the board. I
apprehend the members of this committee know what the politics of their fellow
members are.
Mr. Carney. (Reading:)
** basing his motion upon the affidavit of Rosslyn L. Sowers, attached to the protest
of Sam Robinson, claiming that said returns should be corrected to read 'November
6th' instead of ' November 5th, ' and claiming that said returns should show an adjourn-
ment was made, if such was a fact; and a like motion with reference to summon the
board from Carmel for the purpose of showing whether a part of the count was made
before the hour of 5 o'clock and while the voting was in progress in such township.
This last motion is based on the affidavit of N. W. Spencer, which is attached to the
protest of Mr. Robinson in relation to counting the votes of said township."
That was the reauest. In other words, that their return should be corrected to agree
with the facts. Their return from Carmel showed, as the record shows, that they made
their count immediately after the closing of the polls which the affidavit showed was
untrue, and which we now know was untrue.
Tlie Sunfield proposition was the same. It showed the return was made on the
5th of November, and I showed by them there was a very serious question of an
adjournment over there. Everybody was. of course, a bit indefinite and vague as to
the law — I am quoting from the Supreme Court decisions, and it seems still in doubt-*
an adjournment accordinjg to a later decision may or may not vitiate the vote, accord-
ing to whether opportunity existed for fraud. That is the latest decision. Anyhow,
that is the situation and illustrates the treatment I received there.
I want you to listen to the reason they gave for not calling in the voters from Carmel
Township, recommended by this eminent lawyer. John C. Nichols. That is the fair
play I got down there. You lawyers will appreciate this.
104 OIATTMB B. OABKBT VS. JOHK M. C. SMitH.
Mr. SrBFRSNs. What ia the page?
Mr^ Shiblds. Thia is page 462. (Reading:)
'*Q. You raised the question before the board whether Mr. Spencer was qualified
to make the affidavit settinf forth the facta as claimed in his affidavit in reference to
the township of Carmel while he was a resident and voter in tiie city of Charlotte?— A.
Yes, sir; we did.
''Q. That is, you took the position because Mr. Spencer was a resident and voter in
the city of Charlotte, that he had no right to make an affidavit of what occurred in
the township of Carmel? — ^A. Yes, sir.
"Q. And that was the reason why you took the position that there wasn't anything
in reference to the affidavit of Mr. Spencer and the township of Carmel that justified
vou in calling the election board of Carmel down? — ^A. Well, now, you have a pretty
long rigmarole; I don't know what you want.
*'Q. That was the reason you gave while yoiu* board was in session? — A. Not by
me."
Mr. Stephens. That is on page 362. I thought you said 462?
Mr. Carney. J should have said 362. I thank you. (Resuming reading:)
'' Q. Was not that the reason given by some members of the board? Didn't you take
the position there, while Mr. Carney was there, that because Mr. Spencer had made
that affidavit with reference to Carmel Town^ip that there was nothine before the
board, as far as Mr. Spencer's affidavit was concerned, that justified the board of
coimty canvassers in calling in the election board of Carmel Township? — A. Yes, sir.
*' Q. You took that position because Mr. Spencer was not a resident of Carmel Town-
ship?—A. Yes, sir.
" Q. You didn't consider, then, that any man who knew the facts, whether he lived
in Carmel Township or whether he lived somewhere else, if he claimed to know what
he was testifying about, was a competent man to furnish your board any evidence as
•to what that board in Carmel Township did at the November 5, 1912, election?—
A. Yes, sir.
*'Q. Well, then, I understood you to say that the fact that Mr. Spencer, who was
not a resident of Carmel Township, made that affidavit was the reason why you did
not consider there was any evidence there before your board to act upon. Is that
true? — A. I don't think I said that.
"Q. Was not that the fact?- A. That was one reason for it.
" Q. That was the reason you gave to Mr. Carney, was it not? — ^A. Well, the board-
that was the decision of the board; I was not the whole works.
"Q. Your board. did decide it upon that ground, that because Mr. Spencer made
that affidavit, although he recited in it what the facts were, because he was a resident
of Charlotte and was not a resident or voter in the township of Carmel Township when
the election of November 5 was held, therefore your boara was not justified in calling
in the election board of Carmel Township before the board of county canvassers? —
A. Yes, sir.
"Q. You and Mr. Xirhola did talk in regard to that matter while Mr. Carney was
there, didn't you, in reganl to calling in that board from Carmel Township? — A. I
may have been; perhaps I did.
'*Q. You were the only ones, besides what Mr. Carney said there, to say anything
on that 8ubje<'t until Mr. McPeek came in? — A. Well, we were the onlV ones that
time."
McPeek was the pn)8ecuting attorney and the chairman of the Republican Party.
Just a word further about this interview [reading]:
**Q. Now, Judge Adams in his cross-examination desired you to state just what
occurred; I wish you would state what Mr. Carney did say when he said to Mr. Nichols
*Who are you?'— A. Mr. Nichols sat in the window, and I think 1 said Mr. Carney
was doing this talking, and Mr. Nichols said, 'I will have to take issue with you,' and
he wanted to know what right he had to butt in, and Mr. Nichols said, 'I am the
county clerk of Eaton County, and we will not allow any man from Kalamazoo to come
here and dictate to us how business shall be done in Eaton County.' 'I beg pardon,'
he says; 'I am glad to know you are the county clerk; I beg vour pardon.'
"Q. Did Mr. Carney tell him he had no voice and no vote? — ^A. No, air."
J I call attention to this as bearing upon the proposition that I started out with, that
every conceivable question was determined against the minoiity candidate for the
purpose— I Uiink the evidence fairly shows — of having the election certificate, in the
nrst instance, issued to the conteetee. In other words, I asked for a perfectly natural,
normal right, which ui>on the face of tlie returns would have given me the opportunity,
I thought, possibly, without going into the matter further or raising this question as io
the election in Eaton County, in Carmel Township, by mandamus in our local court.
-Whatever my purpose anyway, I was entitled to a true certificate from the ofilceiB of
the election as to the fact.
OIATTDS 8. OABHBY YS. JOHK U. C. SMITS. 105
- Our canvaasing board had the power to call in officers to correct their certificates
to their returns; they did not say they did not have the power, but they said to me:
"Because the evidence you present comes from a man who don't live in Carmel;
true he says he showed all this; true he was there, as the testimony shows here; true
he was an eyewitness, but we won't take his evidence on something that happened in
Carmel, because he lives in Charlotte."
That was the only reason they could give me, and they handed me then the next
proposition from John Nichols acting, a county clerk, the same man who was down
placing ballots in the ballot box in the second ward, who testified he was an attorney
at law and knew he was violating the law, making that remark to me and Mr. McPeek,
and my brothers will now say that he had no interest in the election of John C. Smith.
Two days later this man who made this statement went to Sunfield and procured this
afiidavit that so much has been said about, and left one for Mr. Knapp to sign, which
my brothers deny very emphatically, not bringing it forth very readily. If you will
examine the testimony — I nave not the time to do it — ^you will find two good reasons
why that affidavit was not produced until the pressure was brought to bear. In the
first place, the affidavit itself shows that these men, to say the least, in the hands of
John Nichols did not state the situation Mrly. An affidavit was attempted to be pro-
cured from John Palmer, and he failed to come across with it, and then these affidavits
none of them showed up until brought forth on cross-examination.
You will recall, if you have read any portion of this record, that in addition to the
question of the instructing in Sunfield there was a question of a very serious adjourn-
ment, and then reconvening in the middle of the night, in the absence of the Demo-
cratic supervisor, and the Republican postmaster, it seems came in and took his
place ana helped in the count and the Democrat was allowed to go out. This affidavit
recites this: '^ There was some talk about adjournment, but the prosecuting attorney
advised us to go ahead, " advised us it was against the law that John Palmer left the
polling place. In other words, it does not state emphatically that there was any
adjournment, but it is couched in such clever language that to one who had no knowl-
edge of the fsLct would lead him to believe that there was not anything of the kind
down there. That is one reason I say it is unfair on the face of it, produced by the
man who treated me unfairly before the Eaton County board of convassers, who said
he knew he was violating the law by putting ballots in the ballot box, that he was
a lawyer and that he knew it was against the provision of the law. There is another
reason Mr. Bera was a witness in this case for the contestee, the man who was post-
master down there in Sunfield, who sat on the board between the hours of 2 and
5 in the morning without any authority at all. We then raised the question as
to his authority to be there, and we had raised the question of his interest there, and
when he testified that he had not any interest at all in the election of John M. C.
Smith, we finally found, gentlemen of this committee, that this man Joel Bera, was
a man who swore that these people or one of them, to this very affidavit. He was
the postmaster there.
It was perhaps a very innocent thin^ in itself to have testimony of Krapp, which
shows that Joel Bera passed this identical affidiavit through the United States mails
without any postage at all. That is the evidence in this case, and that, I charge is
why this amaavit was not procured until brought out by the pressure of Hon. John
W. Adams, circuit judge of our county, who was after the gentleman at the time.
This is why it was brought forward, and that is why it was conceded, that is why I
challenge my brother that he said to us "You can make all the proof to us. we
refuse to produce the orijfinal, " and he now has the nerve to call upon the attorney
general of the State of Michigan to tell you that he did not conceal anything.
Mr. Fellows. Mr. Carney, if you say that I had any knowledge
Mr. Carney. I am quoting the record in this case and am directing your attention
to nothing but the record in this case, gentlemen, and my friends should not interrupt
me for quoting and drawing my deduction from the record.
Now I want to take you back
Mr. Fellows. Do you say I had any knowledge that there was anything wrong
with that affidavit? If you do, I say that your statement is absolutely untrue.
Mr. Carney. Oh, I do not make any such statement. I am telling you what the
testimony of three of their witnesses is, and I ask you to draw this conclusion or not
as you see fit. I take you back now to the city of Battle Creek. My brothers say I
acted very unfairly over there.
Oh, gentlemen, I knew the condition in Climax. I knew that I had a number of
votes over there that belonged to me, that no power beyond the power of this com-
mittee could reach, and the authority of the Federal statute. The decisions of the
supreme court have been final upon that point. My brother agrees with me upon
that. I insisted that the face of the returns stood — I insist upon it now — ^iintil the count
106 Ol^UIKB 6. GABKBY V& JOSUT NL G. &MIXH.
•
WM made under a Federal statute, which was in existence then for my protection
and for my brother Smith's protection. The township of Climax is one that haa
requifed no discussion here, because the result is now conceded.
What was the cause of 38 ballots getting into the ballot box and not getting into
the count is immaterial, but the facts were tnere and I had to abide by them in making
up this certificate. I aaid to the county board of canvassers of Calhoun County:
*'Vou have no right to arbitrarily change tnese votes and change this return. Let the
contestee in this case abide by the same rules that I am forced to abide by; that
I may be present and know what the correct result is."
Did they? They said, 'That is right; we will." Did Mr. Smith go there the
next day prepared with aflSdavit of some one from Eaton or Calhoun County? No;
he went there with Hogget, with John Davies. of Battle ( -reek, and two or three other
committeemen and by force of numbers and persuasion, or what not, or simi^y his
presence, J do not know, they brought the ballot box over the second time. The
second tune, mind you, the ballot box was brought from the city of Battle Creek,
making a distance traveled of 60 miles for that bcikid of inspectors, and deliberately
raised this certificate, these returns, as has been shown here in this record. I
challenge now the conduct, I challenge the legal lieht, and I challenge the good
faith of that ballot box, and I am going to tell you why. Oh, my brothers who say
here, '' Whv don't you agree to a count? " Then we do not ask them to agree to any
count in Climax, because their petition shows and our evidence shows that that
ballot box was protected absolutely, and warning was given to protect il, that no
man might be injured, and it was brought before the commissioner with the seal
of the county board of canvassers intact, and the testimony shows that it has never
been opened.
The seal was there — the opening seal. Was that true of Battle Creek, the second
precinct? No; and there is a piece of evidence in this case, gentlemen, to which
your attention has not been called. The evidence shows, in the first place, all along
that the method of finding this piece of paper was verv peculiar, to say the least.
It was unsigned; it did not contain my name nor Smitfi's name. It was just some
rou^h figures, and the very argument that my brother presents here is an argument
against the use of such a document for correcting any returns. He says the reason
that this statute differs from the other is because there is no tally sheet provided for
the local-option statute. All right. The natural inference is that the tally sheet that
ought to be in the ballot box is that portion of the returns that the board has the right
to refer to. That is the only difference, he says. That is fair logic; it is fair argument
that Mr. Fellows made to you. I think his reasoning was good, and I think the next
deduction was equally as good. If that tally sheet showed imperfections or corrected
mistakes, that was part of the returns; it was signed by the board and they had a
right to rely upon it. I say it is dan^rous practice for any court to lay down the
doctrine that you can take a blank piece of paper without signature, without even
the name of the candidates, and upon that kina of evidence base the right to a seat
in the Congress of the United States, and additionally show, when you see that ballot
box brought in with tlie edge crumpled up in such a manner, and as their own witness
says that this paper could have been placed in that box: and more so than ever when
you find that the box when before that board had that paper in it with no signature.
Every member that was there testified upon that proposition, my brothers, that not
one of them ever saw that pa[)er before that hour.
More than that, I want to read to you something which shows that that ballot never
could be counted after that time. Why? The seals ha<i been broken; the box had
been unlocked; they did not have to pry it open; nol)ody knew whether it con-
tained the same ballots or not. 1 am reciting from the evidence, if you please. Why?
Because the seal that was upon it before that lx)ard wa« not the seal placed upon it
at the time the board of canvassers adjourned; because it had been turned over —
the key and the box — that the janitor in the city hall at Battle (reek, who had nothing
to do with elections, who had opened that l)ox, we do not know how many times I
read the record.
The Chairman. What does that evidence disclose as to why this box was deliv-
ered to the janitor in the courthouse?
Mr. Carney. I do not know. It was given to him to take the l>ook8 out.
Mr. Fellows. The boxes are returned to the city recorder of Battle Creek, and of
course were taken care of by the man who had charge of the city clerk's office.
Mr. Smith. To get the tally lxx)k out for the primary election we were having on
local option. He was told to ^ down and get tne tally l)ooks.
The Chairman. What page 18 that?
Mj. Carney. This is the examination of Thomas H. Thome, on page 439. They
brought him in to show that the tally books were there and had not been tampered
with, and this is what they found (reading);
CLATTfiE 4». <MUt9ni7 VS. JOttiT 11. O. mStTB. lOT
'^Q. Has it remained locked and sealed from the time it was delivered into your
poflsesEdon here in this courthouse at the time the board of county canvassers had it
Define them until now? — A. No, sir.
"Q. What was the occasion of it being unlocked or unsealed? — A. To remove the
renstration book, sAbo the enrollment book.
Q. When was that? — A. I don't remember the date.
"Q. After the recent primary election? — ^A. Prior to the primary election.
**Q. The one that was held this year?— A. Yes, sir.
"Q. Who was present when the box was opened? — ^A. The custodian alone.
"Q. That is yourself? — A. No, sir; the janitor in the city hall, the general utility
man.
"Q. Were you jireeent? — A. No, sir.
"Q. Do you know what was done with the box after that? — A. I directed them to
lock up the box.
" Q. Do you know of your own knowledge? — ^A. No, sir.
*'Mr. Adams. I move to strike out what he instructed them.
**Q. What is the condition of that ballot box now? — A. It is locked.
*'Q. Is it sealed? — A. Yes, sir.
*'Q. When you were here before the board of county canvassers, what was done
with the box? — A. I saw the box opened and the contents taken out; as I remember,
they were rolled up but not disturbed by anyone.
**Q. What further did you see? — A. As I remember, the poll books were taken
out and examined by the county election commisRioners."
On the next page, omitting several questions and answers. (Reading:)
**Q. After they had examined the contents, what was then done? — A. The con-
tents were put back in ttie box, and the commissioners locked and sealed the box.
''Q. Was there any attempt upon the part of anyone there to open or examine
those bundles of ballots? — A. Not to my knowledge.
**Q. In what condition or situation were those ballots; how were they bundled
together? — A. I didn't notice, only that I know they were rolled up and tied.
**Q. Rolled up in rolls and tied up? — A. Yes, sir; I didn't examme them.
"Q. There were several rolls? — A. Yes, sir; I don't know how many.
''Cross-examination by Mr. Adams:
**Q. How long ago was this ballot box opened next after the board of county can-
vassers had the box? — A. I couldn't state exactly, but it was prior to Ihe primary
election.
"Q. Of your own knowledge, you don't know whether it was opened at all after
the board of county canvassers opened it? — ^A. No, sir; I do not; only I instructed the
man to open the box.
" Q. Tnen, of course, you don't know if he did open it what he did with the ballots
when he opened it? — A. No, sir.
"Q. You don't know of your own knowledge now whether the ballots are the
same ballots or have in any particular been changed from what they were when the-
box was brought here after the election before the board of county canvassers? —
A. I couldn't swear to it; no, sir.
**Q. The janitor in your building where your office is located at Battle Creek is
the man who does the general janitor work? — A. Yes, sir.
**Q. The public utifity man you speak of? — ^A. He does the janitor work.
"Q. The janitor of the buildmg, aoing the sweeping, etc., m the building; you
helped him to open that ballot box? — ^A. Under my instructions; yes, sir.
* Q. You didn't give any personal supervision to the opening of it, or anything^
of that kind, yourself? — A. Only instructions; not personally.
^* Q. I mean you were not actually present? — A. No, sir.
** Q. You turned it over to a couple of janitors in the building to open the ballot
box? — ^A. There wasn't two; there was but one.
**Q. One and the same man? — A. Yes, sir.
'^Q. The janitor and the public utility man are one and the same person? — A.
Yee, sir.
'' Q. You instructed him and gave him the key of the box? — A. Yee, sir.
*' Q. And instructed him to go there and open up these ballots that had been voted
at the November 5, 1912, election? — A. To open the ballot box.
''Q. After he opened the ballot box he had free access to the ballots, if he wanted
to?— A. Yee, sir.'^
My brother has the right to produce the box under the Federal statute, and under
the same statute we operated in Climax. We had no knowledge of what the box
contained. They did not insist upon their rights. They did not cause the count
to be made, whatever it might show. They took the chances as it was. I say ta
108 OUlUDB 8. OABHST VS. JOHN M. O. SMITH.
Hub cominittee that under our deciaionB and the decisionB of every State if that
would have made the count you would have paid no attention to it, because the
seal on the box had not been kept inviolate and because on that kina of evidence
you have no evidence at ail, because the very spirit of our election law, of sealing
the box, of placing the key in the hands of one man, the seal in the hemds of another
man, and the box in the custody of still another, showed that it was intended, as our
supreme court has said time and again, that a box that had been tampered with, a
box that had been opened, could not be made the basis of a recount. They ofifered
to produce the man John James, the utility man, and we consented to it, and I will
read you from the record — talk about fair play, Mr. Smith has had fair play all the
way through this thine; he has had everythm^ conceded to him by every bocml,
ana every 1^1 right has been conceded to hun, even to this amendment at the
latest dying hour of this aigument, and then without notice we entered into this
stipulation down there. It was consented on the record that John James, the utility
man, be subpoenaed and put on the stand without contest and without further notice.
They did not produce him. They probably say they did not have the time or could
not find him, or something. Anyway, they did not produce him, and we stood theie
and offered no obstacles.
We would not consent and agree to be bound by a box that had been used as this
box had been, having the appearance that it had, with the record that it had back
of it, and then for him to say to me that these questions have been determined all
fairly and in favor of the minority candidate, I say to you that every question up to
this hour has been determined upon a partisan basis. Here we ask of you, gentlemen,
nothing but our legal rights, ana say to you that with this kind of a count — take the
Cliniax precinct — take the booths from every precinct that was possible, where every
possible chance — will you show me one single place that we 'could benefit, one single,
solitary vote, and when we come to consider that the third district of Michigan con-
tains over 40,000 votes, with 150 precincts, with a majority on its face of 116, with what
you now have before you, as honest men, you know how those election boards are,
as men we all know, without chaiging them with anything, their natural tendency
down there among their friends is partisan. They may honestly differ upon many
ballots. A gentleman told me that that a difference of less than a precinct is not the
thing that gave Smith, the contestee, the certificate that never aid belong to him
under the laws of Michigan, and 1 do not believe that any court will give it to him
now.
Thank you.
The Chairman. For your infonnation, gentlemen, we have concluded that we will
not settle this case probably before the holiday recess. We want to look over these
statements that you have made before the committee carefully, and the briefs, and
^ve it all proper consideration. Have you gentlemen anytiiing else you want to say
in regard to it at close of the hearing?
Mr. Fellows. 1 think you have been fair enough.
Mr. Shields. I feel sure, so far as we are concerned, that you have been extremely
kind and patient with us, and we have nothing to add, unless the committee should
desire some further argument on some question, and that is for them to decide. If
you should, and will notify us, we will be glad to do anything at your suggestion, but
we have nothing further of our own volition.
The Chairman. You will probably be notified of the action by the committee by
whatever resolution we conclude to offer in the House.
Mr. Shields. W^e have nothing more to volimteer, and no further statement to
make, unless you, as chairman, request us to appear before you.
Mr. Carney. I had a tabulation — perhaps I sent it to Mr. Smith— of all those dif-
ferent votes figured out propK)rtionately, according to that Michigan rule.
Mr. Smith. It Is in the brief?
Mr. Carney. No; under the rule only your side is figured.
The Chairman. We do not object to you furnishing any additional information in
a documentary way that you can.
Mr. Shields. There will not be anything further.
Mr. Smith . You ought to give m'e a copy of that tabulation if you file it, and if I
file anything I will be glad to give you a copy of mine.
Mr. Carney. It was simply a tabulation of the Michigan rules.
Mr. Borchers. I would like to have a copy of your tabulation.
The Chairman. Gentlemen, the committee will now stand adjourned until 10
o'clock next Monday morning.
(Whereupon, at 5.15 o'clock p. m., the committee stood adjourned to meet next
Monday, December 15, 1913, at 10 o'clock a. m.)
c7^
68d Congress, { HOUSE OF REPRESENTATIVES. J Report
Sd Session. ) (No. 202.
CONTESTED-ELECTION CASE OF CLAUDE S. CARNEY v.
JOHN M. C. SMITH.
January 30, 1914. — Referred to the House CalendAr and ordered to be printed.
Mr. Post, from the Committee on Elections No. 1, submitted the
following
REPORT.
[To accompany H. Res. 396.]
In the contested-election case of Claude S. Carney v. John M. C.
Smith, coming from the third congressional district of the State of
>- Michigan, the following report is respectfully submitted from the
zr Committee on Elections No. 1, to which it was referred:
' The committee has carefully examined the evidence contained in
^ the record, heard the arguments of the respective parties, and has
« given the case most careful and painstaking consideration.
'^ The case arises out of the election held on the 5th day of Novem-
ber, 1912, for the election of presidential electors and public officers,
,, including Representative to Congress from the third^ congressional
■^ district of Michigan.
c This district is composed of five counties — Kalamazoo, Calhoun,
^ Hillsdale, Branch, and Eaton. The State board of canvassers, com-
•^ posed of the secretary of state, treasurer of state, and the commis-
sioner of the land oflace, canvassed the returns of the district on the
10th day of December, 1912. By their canvass it was shown that
^ John M. C. Smith received 14,609 votes, and the contestant, Claude
.,' S. Carney, received 14,482. The certificate of election was duly
- issued by the board of canvassers to Mr. Smith, and when Congress
*. convened in extraordinary session, at the beginning of the Sixty-
-; third Congress, Mr. Smith appeared at the bar of the House, took the
"7 oath of omce, and has ever smce been serving as a Member. On the
'^ 4th day of January, 1913, the contestant served notice upon the con-
testee of his intention to question his right to a seat in the House.
In his notice the contestant alleged that, notwithstanding the fact that
upon the face of the returns Mr. Smith was elected by a majority of
127 votes, such a result was brought about by false, fraudulent, and
5^8304
2 GONTESTED-ELEGTION GA8E OF GABNEY VS. SMITH.
■
illegal returns froin several of the precincts in the district by inspec-
tors of the election, bv falsel}^ counting ballots and by corrupt and
unlawful conduct of tbe various boards of the election — inspectors,
officers, and other persons.
TOWNSHIP OF CLIMAX, COUNTY OF KALAMAZOO.
In the township of Climax, county of Kalamazoo, the parties to this
action succeeded in assembling the entire election board of that town-
ship and by agreement a recount of the ballots was had. Upon the
face of the returns as made bv the supervisors of elections, John M. C.
Smith was given 83 votes and Claude S. Carney 82 votes; this recount
was had upon the st^geestion by some of the election officials that a
mistake had been made in canvassing the vote. Upon a recount of
the ballots it appeared that Claude S. Carney received 100 votes and
John M. C. Smith 90 votes. This reduced John M. C. Smith's plur-
ality from 127 in the district to 116. Your committee makes no
question as to the right and duty to accept the revised figures as to
tne township of Climax. We do not believe that in the original can-
vass of the votes in that township there was any intentional fraud.
The evidence shows that the election officials were unanimously oT
the opinion that when the original figures were received that they could
not be correct; that more votes had been cast in that precinct tnan the
total as shown by the returns. Besides, contestant and contestee
agree that the correction should be made.
WARD 3, i'lTY OF CHARLOTTE, EATON COUNTY.
The contestant complains of the conduct of the election in ward 3.
city of Charlotte, Katon County. The vote as canvassed in this
county shows that John M. C. Smitli received 214 votes and Claude S.
Carney 1 16 votes. It Ls contended on the part of the contestant
that two of the elections inspectors, Evander Dunning and J. B.
Dowdigan, both Republican inspectors of the election, repeatedly
went into the booths when the voters were preparing their ballots
without re(iuiring such voters to take an oatn tnat tliey could not
read Englisn or did not come within the other requirements of the
law as to such an oath.
Section 3642, Miclngan Compiled Laws of 1897, paragraph 169,
provides:
When an elector shall make oath that he can not read English, or that becaiise of
physical disability he can not mark his ballot, or when such disability shaU be made
manifest to said inspectors his ballot shall be marked for him in the presence of the
challenger of each political party having a challenger at such voting place, by an
inspector designed by the board for that purpose, which marking shall be done in one
of me booths.
Section 3643, Michigan Compiled Laws of 1897, paragraph 170,
provides:
It shall be unlawful for the board, or any of them, or any pert^ou in the pollincf room
or any compartment therewith connected, to persuade or endeavor to persuade any
person to vote for or against any particular candidate or party ticket.
One witness testified that Dunning and Dowdigan went into the
booths when voters were preparing their ballots without requiring
said voters to take the oath prescribed by the statute. This same
00NTE8TED-ELB0TI0N GA8E OF OABKEY VS. SMITH. 3
witness testified that he heard Dunning make suggestions to the
voters to vote for John M. C. Smith. lie said he and Dunning had
some trouble about it; that he told .Dunning that the soliciting of
votes should be stopped, and received the response, *'What are you
going to do about itr' He said that he heard the same suggestion
made to all the voters who asked for instructions; that there were
seven or eight who asked for instructions; that he heard no sugges-
tions made for any other candidate than John M. C. Smith. Dowdi-
gan in his testimony admits that he suggested to one voter whom he
was assisting to vote the name of John M. C. Smith, and that he went
into the booth not to exceed three times. Dunning admits that he
solicited one voter to vote for John M. C. Smith. One of the clerks
testified that he heard Dunning say to a voter, ' * How about J. M. C.
Smith or John M. C. Smith V^ For this mistake on the part of the
board of election inspectors it is insisted that the whole poU of
ward 3 in the citj of Charlotte should be thrown out; that the pro-
visions of the Michigan laws prohibiting the soliciting of votes by
election officials is absolutely mandatory, and notwithstanding the
fact that the solicited votes might be segregated from the entire poll,
nevertheless such conduct will vitiate the whole precinct.
The complaint to the effect that these voters who were instructed
and assisted in preparing their ballots were not sworn may not be
tenable. If the disability of the voter is manifest to the inspectors
of th^ election, then the oath is not required to be administered, and
no evidence was produced to show that the disability was not mani-
fest to the inspectors of the election; that these two provisions of the
Michigan election laws are mandatory under the decision of the
Supreme Court of Michigan there can be no question. In the case of
Attorney General v. McQuade (94 Mich., 439) the Supreme Court, in
discussing these provisions of the law, used this language:
These pnjvisions of the law must be held mandatory or else the purpose of the
law is denoted and the opportunities for fraud are increased rather than aiminished.
If an inspector or other person be permitted to enter the lxx)th with the voter the
danger is far greater than under the old system, where there was some opportunity
to see and detect fraud. Under this practice venal voting could be readily accom-
plished. The law is designed to secure absolute secrecy to the elector, and thus
prevent all opportunitv for corrupt practices. The law does not permit parties to
profit by such irauds, tfiough they may not have participated in the fraud.
Should the entire precinct be thrown out on account of the ad-
mitted mistake occurring in this precinct ? Is it possible to segregate
the tainted votes from those that were fairly cast ? We must concede
under the case cited, the law in this respect being mandatory, that
the votes sought to bo influenced by the election inspectors must be
cast out. In the McQuade case the court cites with approval the
following excerpt from Payne on Elections, section 499, and Mc-
Crearv on Elections, sections 190 and 192:
When fraud on the part of the officers of the election is established, the poll will not
be rejected , unless it shall prove to be impossible to purge it of fraud . When the result
at a poll, as shown by the returns, is false and fraudulent, and it is impossible to ascer-
tain the actual vote from the other evidence in the case, the vote of such poll must be
wholly rejected.
ThLs rule is certainly founded in good sense and is sustained by the
overwhelming weight of the authorities.
4 OONTEBTSD-ELECTION CASE OF CABNEY VS. SMITH.
In the American and English Encyclopedia of Law, page 353, the
rule is thus laid down :
Fraud does not invalidate the legal Votes cast, but by destroying the preeumption
of the correctness of the returns it makes it necessary that any person who claims any
benefit from the votes shall prove them; and where no proof is offered and the frauds
are of such a character that the correct vote can not be determined, the return of the
precinct will be rejected.
The total vote cast in this precinct was 363. The record shows the
mistake complained of did not apply to more than 8 votes. Should
355 voters bo disfranchised, the integritv of whose ballots can not be
and is not questioned V To segregate tne tainted votes in this ward
would be in harmony with the great weight of the authorities, and
give full force and effect to the mandatory provisions of the Michigan
laws relative to the marking of the ballots, but we do not believe
that more than 8 votes should be deducted from the poll in this
precinct. We believe such a conclusion is in exact accord with the
mtent and spirit in the decisions laid down in the case of the Attorney
General v. Furgason (91 Mich., 438) and Attorney General v. May
(99 Mich., 545).
If the records show that the soliciting of votes in this precinct was
open and continued during the whole day, the opposite conclusion
should be reached ; l)ut we have searched the record in vain to find
that these two election inspectors solicited any of the voters except
those who called for instructions. In neither of the three cases cited,
and upon which the Contestant relied, did the Supreme Court of
Michigan hold that the entire poll should be vitiated.
SrXFIEIJ) TOWNSHIP, EATON .COUNTY.
In this precinct the re<»ord discloses that John M. C. Smith received
174 votes and ( laude S. Carney 104 votes.
It is provided by the laws of Michigan that the township super-
visor, two of the justices of the peace whose t€^rm of oflBce first expire,
and the township clerk shall constitute the board of inspectors and
perform the duty of judges of elections, and that the township clerk,
together with a person chosen from the electors present at the polls,
shall constitute the clerks of the election. In this township aft^er
the polls were closed, the board continued the counting of the oallots
until about 12 o'clock of that night, when the inspectors then made a
motion that the board adjourn until the next morning, to finish count-
ing the ballots. 1 his motion was carried and the board adjourned
leaving the ballots, tally books, poll books, and statement books in
the voting place. At the time of adjournment about one-half of
the ballots had been counted. It is not certain whether the ballot
box was locked or not. The entire board left the voting place and
turned out the lights: after leaving the voting place it occurred to
some of the inspectors that they had no legal authority to adjourn
the count and they called upon the prosecuting attorney of the
county, who advised them that such adjournment was improper.
Thev then reassembled and continued the counting. The record
discloses that there wtis a great number of mixed ballot.s; that the
count was exceedingly laborious and the entire board worn out, was
the reason for the adjournment. There was no intentional fraud
contemplated by the adjournment; it was not claimed nor shown
GONTESTED-ELKCTION CASK OF OABKEY VS. SMITH. 5
that during the adjournment that any of the ballots were disturbed
or that the count, as far as it had proceeded, had been modified in
any particular whatever.
I ao not believe that any one would contend for a single moment
that the poll of this precinct should be thrown out simply on account
of this imwarranted adjournment. To disfranchise the 345 electors
who voted in this township at that election upon this mere irregularity
would certainly be a most dangerous precedent.
Upon the reorganization of the polls in this township the board
of inspectors appointed Albert Sayer what they called an instructor
of election, ana administered to him an oath aa such instructor.
They assigned to him the duty of deUvering the ballots to the voters.
He served in this capacity during the whole of the day. It is not
shown that he did anything other than the delivering of the ballots
to the voters, except that he saw one man mark his ballot who en-
tered the booth, and that he told two men how to mark their ballots.
That the appointment of Albert Sayer was not authorized by the
election laws of the State ban not be questioned. By the Micnigan
Compiled Laws of 1897, section 3640, page 167, it is provided that:
No ballot shall be distributed by any person other than one of the iniqpectors of the
election, nor in any place within the railing of the voting room, to show electors how
to vote, and no ballot which has not the initials of a member of the board of election,
written by such member on the back thereof, shall be placed in the ballot box.
The contestant claims that the entire vote of this precinct shall be
thrown out. and bases his contention upon the decision of the Supreme
Court of Michigan, rendered in the case of Attorney General ex rel.
McCall V. Kirby (120 Mich., 592). That case is easily distinguish-
able from the case under consideration. The court says:
In determining the title to a county office, the vote of a towuHhip should be ex-
cluded where it appears that in such township the mandatory provision of the election
law requiring the officirJ ballots to be kept in the custody of an inspector was violated
by the appointment of an unofficial person as "instructor " to distribute the ballots, and
allowing nim access to the voters, even after they had entered the booths, although the
parties acted in good faith and it is not shown that voters were unduly influenced.
There the unauthorized person was given access to the voters after
they had entered the booth. Here it is not claimed that Sayer ever
entered the booth with a single voter. A majority of this board were
Democrats; the so-called instructor was a Democrat, and an adherent
of the contestant, and testified that he voted for him. The statute
requiring that the ballot shall be delivered to the voters by an inspector
is unquestionably mandatory, but nothing is shown that anything
occurred of a venal or dishonest character on the part of Saver in the
conduct of his duty. There was nothing took place, either during the
time the ballots were being cast or in the count, that could by any
possibility be construed nito fraud or intentional wrong, or that could
change or influence the result. While the Supreme Court of Michigan
might not differentiate the facts in the case of The Attorney General
V. Jtirby from the facts disclosed by the record, we do not beheve
that a committee of this House, looking for the truth to determine who
in fact was elected by the voters, should, on account of this irregu-
larity, disfranchise the electors of this township. No Question is made
but that the ballots cast in this precinct were cast oy legal voters
and in good faith. Nor is it claimed that tlie contestee received a
single vote more than was intended to be cast for him, or that the
6 CONTESTED-ELECTION CASE OF CARNEY VS. SMITH.
contestant lost a single vote. We do not believe that the facts war-
rant the rejection of the entire poll of this township, nor does the law
as practiced in almost every jurisdiction warrant such a result.
McCreary on Elections, section 488, says:
The power to reject an entire poll is certainly a dangerous power, and, though it
belongs to whatever tribunal has jurisdiction to pass upon the merits of a contested-
election case, it should be exercisetl only in an extreme case; that is to say, where it
is impossible to apcertain witii reasonable certainty the true vote.
Paine on Elections, section 497, says:
Ipfnorance, inadvertence, mistake, or even intentional wrong on the part of the
local officers should not be permitted to disfranchise a district.
Section 498 savs:
The rules prescribed by tlie law for conducting an election are designed chiefly to
afford an opportunity for the free and fair exercise of the elective francnise, to pre-
vent illegal votes, and to ascertain with certainty the result.
The departiu-e from the mode prescribed will not vitiate an election, if the irregu-
larity does not deprive any legal voter of his vote, or admit an illegal vote, or cast
uncertainty on the result and has not been occasioned by the agency of a party seek-
ing to derive a benefit from them.
rower to throw out the vote of an entire precinct should be exercised only under
circumstances which demonstrate beyond a reasonable doubt that there has been such
a disregard of law or such fraud that it is impossible to determine what votes w«pe
lawful or unlawful, or to arrive at any result whatever, or whether a ^re&t body of
voters have been prevented from exercising their rights by violence or intimidation.
(Case of Daley v. Petroff, 10 Philadelphia Rep., 3890
There is notliing which will jit^tify the striking out of an entire division but an
inability to decipher the returns or a showing that not a single legal vote was polled
or that no election was legally held. (In Chadwick v. Melvin, Bright's Election
cases, 489.)
Nothing short of an impossibility of ascertaining for whom the naajority of votee
were given ought to vacate an election, especially if by such decision the people
must, on account of their distant and dispersed situation, necessarily go unrepre-
sented for a long period of time. (McCreary on Elections, 489.)
If there has been a fair vote and an honest count, the election is not to be declared
void because the force conducting it were not duly chosen oi sworn or qualified.
Paine on Elections, section 377. In Wells t?. Taylor (5 Mont.),
it is said :
Under statutes re(juiring judges of election to be chosen by a majority of the voters
present and voting, if a person who is a resident and a voter of the district, without
a formal choice by the voters, act as judge and return the results with no objection
on the part of the voters, the chancellor will not declare the election void or restrain
the collection of a tax authorized by the vote of the electors.
Upon the question of a recess taken by the officers, we cite Paine
on Elections, section 463 :
A recess of an hour taken by the officers at noon for dinner without fraudulent or
wrong^l purpose or result will not warrant the rejection of the poll of the prednct.
It is decided even in Michigan, in the case of The People v. Avery
(102 Mich., 572), that electors are not to be deprived of the result of
their vote at an election by mere mistakes of their officei-s when it
docs not appear to have changed the result.
Complaint was also made that Mr. "Bera, a Republican postmaster,
was permitted to assist one of the clerks in tallying the vote during'
the count; that Mr. Bera tallied about 15 votes; he did not inspect
or handle any of the ballots; two set^s of books were kept bv the
clerks; and no evidence is disclosed by the record that the books
kept by the clerk who was assisted by Bera differed in any particular
whatever from the tally kept by the other clerk; and ttiere was no
CONTESTED-ELECTION CASE OP CABNEY VS. SMITH. 7
showing that the contestant did not get credit for every vote that was
cast for him. It certainly can not be successfully contended that the
entire poll, or any part oi it, should be cast out.
SECOND WARD, CITY OF CHARLOTTE, BATON COUNTY.
In this ward John M. C. Smith received, on the face of the returns,
161 votes and Claude S. Carney 107 votes.
The contestant complains that one John C. Nichols, who was not a
member of the boaid of election inspectors, was permitted to deposit
some ballots in the box during the progress of the voting. A brief
review of the testimony upon this point will disclose the situation.
F. M. Overmire was the Demociatic challenger and entitled to be
within the rails of the voting place. He testified that he saw John C.
Nichols take quite a number of ballots, passed to him by voters, and
that he announced the name of the voter and deposited the ballots in
the box. He says that as near as he can remember Nichols was
engaged in this work from an hour to an hour and a half, but savs,
''I mi^ht be a little off in that, but that is my best recollection at tnis
time. E. G. Davids testified that he saw John C. Nichols receiving
ballots and depositing them in the ballot boxes for the space of about
10 minutes.
In rebuttal of this testimony John C. Nichols testified that Mr.
H. A. Hamilton, one of the election inspectors, was taken sick, left
the polls, and did not return that day. This was near the noon hour.
Mr. Knowles, one of the inspectors, was handing the ballots to the
voters. The departure of Mr. H. A. Hamilton left no one to receive
the ballots from the voters. Mr. Knowles reauested Mr. Nichols to
receive the ballots and deposit them in the box; that he received
four, five, or six and deposited them in the box; that he was not
engaged in receiving ballots to exceed 10 br 15 minutes, when he was
relieved by Roy Barber, who was a member of the board; that he did
nothing further in the conduct of the election on that date. Nichols
was a cnallenger of the Republican Party, and as such was entitled to
be within the railing. Mr. Hamilton testified that he was taken sick;
that he was sick on the night before the election, but went to the
polling place and remained until about noou, when he became so
sick lie was compelled to go home and go to bed and was not able to
return to the election place either at the time of the ballot or count.
C. R. Barber shortly after Mr. Hamilton left the voting place was
sworn in to take the place of Mr. Hamilton and received the ballots
from the voters from the time he was sworn in until the close of the
polls at 5 o'clock.
Claude S. Knowles, one of the inspectoi-s, testified that Mr. Ham-
ilton acted as an inspector until he was too sick, then his place was
supplied by Roy Barber.
As to the reception of the ballots by John C. Nichols, he testified
that he asked him to receive the ballots and place them in the box;
he says that it was during the noon hour; that there was a rush and
that ne was too busy to wait upon the voters ; he being engaged in
giving out the ballots was the reason why he asked Mr. Nichols to
receive the ballots; that shortly after Mr. Nichols began work Roy
8 C0KTB8TU>-EIJEGTI0N' CASB OF CAEIVXY JSL SMITH.
Barber came in; he administered the oath to him and he reUeved Mr.
Nichols; that Nichols did not receive more than fire, six, or seveii
ballots.
Roy S. Preston, one of the clerks of the election, testified that he
saw John C. Nichols receiying ballots for a few minutes and that he
saw him put two or three ballots in the box.
A careiul inspection of this testimony shows that John C. Nich-
ols was the Republican challenger entitled to be within the railing,
and by a fair preponderance of the testimony that he did not receive
and deposit more than seven ballots; that he was at the tinoe a candi-
date upon the Republican ticket for the office of circuit court com-
missioner. Upon this testimony the committee was asked by the con-
testant to cast out the entire poll of the ward. In this connection
what we have heretofore said in reference to Albert Sayer in Sunfiaid
Township disposes of the contention that no ballot shoukl be re-
ceived and placed in the box except by an election inspector, where
no actual fraud is shown to exist.
Section 3612, paragraph 189, of the Michigan Compiled Laws of
1897, j)rovides:
Tliat at all elerlioiis at which any presidential elector. Member of Congress, membe'
of the legiBiature, State or county officer, or circuit juc'ge is to be elected, or any
amen(1mont8 to tlie constitution, the Hupervisor, two justices of the peace not holding
office of supervisor or township clerk whose term of office will irst expire, and the
township clerk of each township, and the assessor, if there he one, an alderman of
each ward in a city, shall he the inspectors of election: Provided, That in all voting
precincts where by special enactment provisions exist for designating inspectors of
Meet ion said provisions are not to be supersede, but such officers Niall be the mspecton
of election under this act: And proviaed further, Tlmt no person shall act as such in-
spector wlio i.H a camlidate for any office to be elected by ballot at said election.
It will be noted by this law that no person shall act as inspector
who is a candidate for office at such election. Contestant relies upon
the case of The Attorney General ex rel. McCall v. Kirby (120 Mich.,
592) for authority to cast out the entire poll of this ward.
The case here is clearly distinguishable from the facts in the Kirby
case. In the latter case a Mr. ICerr was intrusted with the ballots
and went freely into the booths with the voters; that Kerr^s custom
was to ask the votere if they knew how to vote, and if they desired
instructions he took their ballot, sometimes holding it against the
wall, and gave instructions; the evidence discloses that ne talked
with the voters while in the booths, ho standing in the door of the
booth; several voters testified that he showed them on their ballots
how to vote for the respondent if they desired to. No such facts
were disclosed in this case as to the conduct of John C. Nichols.
On the contrary, the record shows that Mr. Nichols was present dur-
ing the count on the night of the election : that there were two Repub-
lican candidates for the office of circuit court commissioner and a
Democratic candidatcv There was a blank space opposite Nichols's
name upon the ballot on the Democratic ticket. Wh^n there was a
cross opposite Dean's name, the other Democratic candidate for cir- /
cuit court commissioner, and neither of the two other name«^ were
scratched off, Nichols contended that the vote should not be counted
for Dean, and the same way when there was a cross opposite either
of the Republican names. There was only one circuit court com-
missioner to be elected, and the contention Nichols made was right
bevond controversv, which shows conclusivelv his honest intention.
00NTX8TED-ELE0TI0N CASE OF GASNEY VS. SMITH. 9
•
Quite a different situation from the conduct of Kerr in the Kirby
ease.
What the Supreme Court of Michigan might do with the facts m
this case it is not necessary for ijs to determine, if the House has
established a precedent covering such a case. In the contested
election ease of Spaulding v. Mead, arising from the ninth congres-
sional district of the State of Georgia, and decided at the first ses-
sion of the- Ninth Congress, as earfy as December 18, 1805, it was
decided that the power of the House to judge of the election of its
Members could not be concluded by a State law or the executive.
In the contested election case of Williams v. Settle, reported to
the House in 1895, the Elections Committee held that the handling
of ballots by parties other than the officers does not necessarily
cause rejection of the poll, and intimates that even had the judge
been a candidate for Confess and the proof discloses that the elec-
tion was honestly and fau-ly conducted there would be no grounds
for rejection of the entire poll.
In the election case of Lynch v. Chambers, Forty-second Congress,
decided in 1882, Hinds' Precedents, volume 2, section 959, it is said:
Election laws are or may become vital to the existence and stability of the House
of Bepresentatives, and to hold it must shut itself up in the narrow limits of investi-
gating solely the question as to whether the election has been conducted according
to the State laws as interpreted by its own judiciary would be to yield at least a part
of that prerogative conferred by tne Constitution on the House itself.
It is contended by the contestant that the Supreme Court of Michi-
gan upon the points involved ought to be followed by Congress, and
that it is against the settled doctrine of both Congress and the Federal
judiciary to disregard the decisions of State tribunals in construing
their own laws. The position can not be successfully maintained.
Where a line of decisions have been made by the judiciary of a State
and those decisions have become a rule of property, the Federal
judiciary will follow them; but the rule is different as to all other
cases. In the case of the Township of Pine Grove v. Talcott (19 Wall.,
666) , the Supreme Court of the United States in passing upon the
validity of a Michigan statute says:
It is insisted that the invalidity of the statute has been determined by two iudg[-
ments of the Supreme Court of Michigan and that we are bound to follow these adjudi-
cations.
With all due respect to the eminent tribunal by which these judgments were pro-
nounced, we must be permitted to say that they are not satisfactory to our minds.
The question before us oelongs to the domain of general jurisprudence. In this claas
of cases this court is not bound by the judgment of the courts of States where the cases
arise; it must hear and determine for itself. It must be conceded that in matters not
local in their nature the Supreme Court of the United States has uniformly held that
the decisions of the State courts were not binding upon it. (Swift v. Tyson, 16 Pet.,
1-18.)
A cogent reason why Congress should not be bound bv decisions
of State tribunals with regard to election laws, unless such decisions
are founded upon sound principles and comport with reason and
justice, is that every State election law is made a Federal law by the
Constitution of the United States, where Oongrcss has failed to enact
laws on that subject. To say that Congress shall be bound abso-
lutely by the adjudication of the State courts on the subject of the
election of its own Members, is inimical to the soundest principles
of national unity. If a State legislature should pass a law unreason-
able and unjust in its terms, ana the State courts should uphold such
10 CONTESTED-ELECTION CASE OF CABNEY VS. SMITH.
f
unreasonable and unjust law, should Congress be bound by such law
or adjudication? To say that it should would be subversive of the
constitutional provision that each House shall be the judge of the
election, qualifications, and returr^ of its own Members.
The House in deciding uj)on a Federal election case acts in the
capacity of a court, and it should not be bound by decisions of the
State courts unless the reasons given by them are not only conAdncing
but sound. There was cast in the second ward, city of Charlotte,
county of Eatun, 300 votes for the office cf Representative in Con-
frcss. By a fair preponderance of the evidence it is shown that
olm C. Nichols did not handle more than 7 ballots; no question
was made as to the hont^sty and bona fides of the voters who cast
the 300 ballots for Representative in Congress, So far as the evi-
dence discloses, every ballot was cast by a qualified elector. To
cast out this entire poll and disfranchise 300 electors, every one of
whom intended to and did honestly vote for some one of the can-
didates for Congress, dres not, in our opinion, comport with the
precedents firmly established by this House. In the absence of any
proof of misconduct or fraud on the part of the election inspectors,
or on the part (/f John C. Nichols, to nullify the poll of this ward,
would not be in keeping with the precedents of the House. We
believe that the entire poll should be counted as cast and canvassed
in accordance with the canvass made by the supervisors of elections.
Tlie very most that your committee believes that the cont^tant
can claim is that the 7 ballots alone might be purged from the poll.
To go beyond this, in our opinion, would be to do violence to the
expressed will of the public.
CARMEL TOWNSHIP, EATON COITNTY.
In this township about 2 o'clock in the afternoon of the election,
the baUot box furnished by the proper authorities to the board of
inspectors became full of ballots. The election officialsa fter consulta-
tion unlocked the box, poured the ballots out upon a table, within
the railing of the voting place, reclosed the box and went on receiving
ballots, placing them in the ballot box until the close of the polls.
Two outsiders, William Clements and Cortez Cushing, were called in
and sworn as extra clerks. Clements was a Republican, and Cushing
a Democrat. After the box was emptied, Cushing sorted the ballots,
£ laced the straight Democratic votes in one pile and the straight
Republican and other votes in another, and the split votes in a tmrd
pile. The two alleged clerks than tallied the straight Republican and
Democratic votes. After this Huber, the supervisor, read the names
from the split votes and they were tallied as read by the two clerks.
This count proceeded until the close of the polls, after which it was
finished and the second box was opened and the count continued
until its conclusion, about 11 o'cIock.
Qements testified that every vote counted was compared; that
whenever Huber would r^d off a name or a vote for one man, he
would say the number of votes that there was; if this tally did not
correspond wnth that kept by Cushing, they would go back and make
the correction. That tnis occured once or twice; that in making the
correction they would recount all of the ballots; that when the tallies
did not correspond it was only a difference on one candidate; that
CONTESTED-ELECTION CASE OF CABNEY VS. SMITH. 11
he helped finish the comit of those that were on the table and that
the count was completed shortly after 5 o'clock; that as near as he
could remember he assisted in counting about 140 votes. He says
that the tally was honestly and correctly made.
Gushing says that as far as he knew the count was honest and cor-
rect and that Mr. Carney was credited with every vote that was cast
for him; that John M. C. Smith received only the votes that were
cast for him. Neither Clements nor Ciishing took any part whatever
in distributing among or receiving ballots from the voters. All the
ballots were read and annoimced by an hispector of elections. In
this township John M. C. Smith received 137 votes and Claude S.
Carney 82; all candidates 235 votes. Section 3646, Michigan Com-
piled Laws of 1897, paragraph 173, among other things, provides:
That immediately on closing the polls the board shall proceed to canvass the votes.
Such canvass shall be public and shall commence by the comparison of the poll lists
and a correction of any mistakes that may be found or made to agree. The box shall
then be opened and the whole number of ballots counted. If the ballots shall be
in excess of the number of electors voting according to the poll liste, they shall be
replaced in the box and one of the inspectors shall publicly draw out and destroy
so many ballots therefrom unopened as shall be equal to such excess. They shall
first select and count the straight tickets and give the number to each candidate
voted for on the straight tickets. All other tickets ^all be laid on the table and
counted in regular order in such subdivisions thereof as may be convenient for a
prompt and careful determination of the result of such election.
The contestant complains of the action of the township board in
opening the ballot box at 2 o'clock in the afternoon and permitting
the ballots to be tallied by men not members of the board as violating
the secrecy and integrity of the ballot of the voter.
Section 145, Michigan Compiled Laws of 1897, section 3618, pro-
vides:
That the box shall not be opened during the election except as provided by law
in case of adjournments.
The Michigan law also provides that the board in townships may
adjourn the polls at 12 o'clock noon for one hour, in. its discretion.
The contestant in this township relies upon the two propositions:
(1) That the opening of the box before closing of the polls vitiated
the entire polL
(2) That the tally by two persons not members of the board
vitiated the entire poll.
As to the first proposition: It was very unfortunate that the
election inspectors did not procure another box in which to deposit
the ballots after the ballot box furnished them bj the proper autnori-
ties had become filled, yet there is no law of Michigan providing for
the use of a second ballot box. The contingency seems to have been
wholly overlooked by the State legislature. Had they adopted this
course and procured another box no doubt complaint would have
been made that this would vitiate the entire poll, because there was
no. law permitting the use of a second ballot box. The judges of
the election were confronted by a condition; they were compelled to
adopt some means for the conduct of the election during the remain-
der of the afternoon, and while some other method might have been
less objectionable as the one adopted, yet in the absence of any show-
ing of fraud we do not believe that the whole poll should be cast out
for the simple fact that the ballot box was opened and emptied of
its contents before the time prescribed by law.
}2 OONTESTED-ELBOTIOK CASE OF CARNEY VS. SMITH.
As to the second proposition: We have searched the record care-
fully to determine whether or not Mr. Carney was deprived of any
votes cast for him on account of the tallying being kept by two clert^
called in and swom^ without authority, as mspectors of the elections.
The contestee proved by a preponderance oi the evidence that no
mistake had occurred in the tailly kept by these parties; without a
showing upon the part of the contestant that he suffered a loss by
reason of the unwarranted conduct on the part of the election inspec-
tors in permitting this count to take place before the time prescribed
by law, should the whole poll or any part of it be cast out t In the
case of Roberts v. Calvert (98 N. C, 580), the holding is to the effect
that if the ballots were thoroughly counted the fact that others than
the elections officers handled them would not of itself destroy the elec-
tion at the particular voting place.
The two clerks did not leave the voting place until after 5 o^clock;
the ballots were separated, the straight tickets and split tickets
being placed in separate piles. There was no evidence to show that
any voter had access to any of the ballots. The only information
that voters might receive in passing by the table would be the an-
nouncement of a name by an inspector. It is not shown that any
voter saw either of the tally sheets kept by the clerks. While this
was an irregularity that should not be encouraged, your committee
does not believe that it destroys the secrecy or integrity of the ballot.
WINSOR TOWNSHIP, EATON COUNTY.
In this township the contestant complains that on the 7th day of
April, 1913, which was the first Monday in April of that year, and on
which date a general election was held in the State of MicUgan, that
upon opening the ballot box in this township it was discovered that
the ballots were not initialed, and for this reason the poll of this
township should be cast out. John M. C. Smith received in this
township 174 votes, and Claude S. Carney 92, and there was cast a
total of 344 votes.
Section 3647, of Michigan Compiled Laws of 1897, paragraph 174,
provides :
After the ballots are counted tiiey ahall, toother with one tally sheet, be placed
in the box, which ahall be securely sealed in such a manner that it can not be opened
without breaking such seal. The ballot shall then be placed in chaise of the town-
ship or city clerk, but the keys of said ballot box shall be held by tne chairman of
the board and the election seal in the hands of one of the other inspectors of election.
It was under the pn)visions of this statute that the ballots were
placed in the box and preserved until the April election.
Paragraj)!! 167, Micnigan Compiled Laws of 1897, section 3640,
provides:
No ballot shall e distributed by an^ person other than one of the inspectors of
election, nor in any place except within the railing of the voting room, to electors
about to vote, and no ballot which has not the initials of a member of the board of
election written by such member on the back thereof shall be placed in the ballot box.
There was but one ballot and this was very large; the ballots were
numbered consecutively, the number being printed uix)n the cornor
of the ballot. This corner was perforated so as to be easily torn off.
The jud^e of elections should have placed the initials in ink or with
lead or indelible pencil directly beli>w the perforated line upon the
COKTBSTBD-ELEOaiON CASE OP CABNBY VS. SMITH. 18
back of the ballot proper. Instead of doing this he wrote his initials
upon the perforated comer, the baUot was nanded to the voter with
the perforated comer containing the number of the ballot and the
initials of the judge iipon it; the voter marked his ballot, returned
it to another judge, who tore off the perforated comer and deposited
the ballot in the box. It was in this manner that the irregularity
arose. ^ It was shown conclusively that Mr. Carney received every
vote in the count to which he was entitled and which had been cast
for him; that there was no intention to violate the express provisions
of the statutes in initialing the ballot. The inspector who did the
initialing had been a judge of elections for 10 years.
The legislature of the State had changed tne law in reference to
the place where the judge should write his initials upon the ballot,
and the judge who did the initialing of the ballots testified that he
supposed that he was following the law. So far as the record dis-
closes, the election was honestly and fa"u*ly conducted and each can-
didate duly accredited with the votes he had received. Formerly
the law required that the initials were to be written in ink on the
upper left-hand comer on the back of the ballot ; it was further pro-
vided that no ballot which was not indorsed with the initials of the
poll clerk, as provided in that act, should be void and should not be
counted.
In the case of Horning v. Board. of Canvassers of Saginaw County
(119 Mich., 51), it was hold that the provisions of the election law, act
No. 190, Public Acts 1891, section 22, requiring the inspector to
write his initials upon the upper left-hand corner of the ballot, and
section 36 of the act, declaring all ballots void not indorsed with the
initials of the inspector as provided in the act, did not authorize the
rejection by the canvassers of ballots inadvertently indorsed by
the inspector in the lower left-hand corner, so much of the statute
as designates the particular place for the indorsement being direc-
tory only. It will be noticed that by express provision of section 36
of that act, ballots not so initialed are declared void. The language
would not indicate that the provision was mandatory. Later the
supreme court of the State of Michigan, to our minds, reversed this
decision in the case of The People ex rel. Anderson v. Rinehart (161
Mich., 585), the syllabus of this case is as follows:
Failure of an election inspector to write his initials on the lower left-hand comer
of the ballot under act No. 55, Public Acts 1905, violates a mandatory duty which is
not performed by initialing the ballots on the perforated comers that were tom off
and requires the rejection of the defective ballot.
Here we have two decisions of the eminent court, the highest
tribunal of the State of Michigan, construing practically the same
language and deciding in one case that the language is directory
merely and in ,the other case that it is mandatory. This compels
us to look for a justification of the two conflicting rules. In the case
of The People v, Avery (102 Mich., 572) the court says:
We have frequently held that the electors are not to be deprived of their votes by
mere mistakes of their election officers when such mistakes do not indicate that the
result has been changed thereby, and many things may occur that can be treated as
irregularities.
It must be borne in mind that the acts complained of was the mis-
take on the part of the supervisor in initializing the ballots and no
14 OONTESTED-BLBCTION CASE OF GABNEY VS, SMITH.
act on the part of the electors. In. The People v. Bates (11 Mich.,
362), the justice delivering the opinion lays aown this rule: ^'If the
fraud of the voters, the ballot shall not be counted. " In Linstron v.
Board of Canvassers (94 Mich., 467) it is said:
The evident intent of this providon, referring to section 36, above pointed out, was
to provide againM voters mandng the individual ballot which they cast in such man*
ner as to distinguish it.
In Loranger v. Navarre (102 Mich., 259) we find this language:
The voter finding the ticket upon the official ballot is not required to determine
its regularity at his peril. This might involve a necessary knowledge of facts difficult
to ascertain. He may safely rely upon the action of the officers of the law, whom he
has a r ght to suppose have done their duty.
In The People v. Avery (102 Mich., 572) tliis principle is laid
down:
The electors are not to be deprived of the result of their votes at an election by the
mistake of election officers when it does not appear to have changed the result.
This line of decisions clearly demonstrates that in the State of
Michigan its supreme court has for many years recognized a clear
distinction between those things required of the individual voter
and those imposed upon election officers. A careful inspection of
these cases cited will disclose that the Michigan court, until the
decision of People v, Rinehart, discriminated Detween the acts of
the electoi-s and those of the officers. Acts to be done by the elector
were mandatory, while those by the inspector were directory. These
decisions recognized the principle that where there has been a sub-
stantial compliance of the law on tlie part of the individual voter,
and it is made to appear that there has been in tact an honest ex-
pression of the public will, that such expression must be conclusive,
although there may have been a failure to comply with some of the
specific provisions of the law upon the part of the election officers.
McCreary on Elections, section 724, states the rule as follows:
The weight of authority is clearly in favor of holding the voter, on the one hand, to
a strict performance of those thingB which the law requires of him, and, on the other
hand, relie\in^ him from the consequence of a failure on the part of election officers
to perform their duties according to the letter of the statute, where such failure has
not prevented a fair election. The justice of this nile is apparent, and it may be
said to be the underlying principle to be applied in determining this question. The
requirements of the law upon the elector are in the interest of pure elections and
should be complied with, at lea'^t in substance, but to disfranchise the voter because
of the nustakes or omissions of election officers would be to put him entirely at the
mercy of political manipulators.
Paine on Elections, section 499, in treating of the subject says:
Honest voters may lose their votes through the criminal misconduct of dishonest
officers of elections. While it is well settled that the mere neglect to comply with
directory requirements of the law or the performance of duty in a mistaken manner
without bad faitn or injurious results will not justify the rejection of an entire poll,
it is equally well settled that when the proceedings are so tariushed by fraudulent or
negligent or improper conduct on the part of the officers, that the result of the election
is rendered unreliable, the entire retiu'ns will be rejected, and the parties left to make
such proof as they maj[ of the votes legally cast for them. But when fraud on the part
of the officers of elections is establi^^hed the poll will not be rejected unless it shalV
prove impossible to purge it of fraud.
The contested ele(;tion of Burns v. Young, Forty-third Congress,
volume 2, Hinds's Precedents, 119, the House held that proof of
mere irregularities in the administration of the election law aoes not
justify the rejection of the votes.
00NTB8TBD-BLE0TI0N CASE OF CABNEY VS. SMITH. 15
In the contested-election case of Richardson v. Rainey, Forty-fifth
Congress, second session, Hinds's Precedents, 176, a great array of
irregularities was insisted upon by the contestant. We enumerate
them:
A failure of one or more precinct officers to take the oath of office preacribed by law;
a failure of one or more of tine precinct officers to file the official oath in the office of the
secretary of state; the failure to appoint a clerk at an election according to law;
a failure of the precinct officer to organize a board ; a failure to keep a poll list according
to law; a failure to open the polls at the hour fixed by law; a failure of the clerk to
take the oath of office as prescribed by law; the fact that a ballot box contained more
than one opening; the circumstances that but one United States supervisor attended
the election; an adjoiu*nment of the polls during the day; a failure to keep a tally list;
a failure to count the ballots imn^ediately after the close of the poll; a failure to
administer the oath prescribed by law to the electors; the fact that the poll list, ballot
boxes, and statement of results were not delivered to the county canvassers by the
chairmen of the precinct boards; the refusal of the county canvassers to entertain and
decide upon protests presented by electors; the fact that the election was conducted
by two instead of three precinct officers, and the fact that the county canvassers
opened the ballot boxes when they canvassed the votes.
It will be observed that most of the objections relate to acts of
commission or of omission on the part of oflBcers of elections. The
committee having under consideration the questions involved make
these observations : The voter is not to be deprived of his right and
the citizens are not to lose the result of an election fairly held because
of some important omission of form or of the neglect or carelessness
or ignorance on the part of some election officers or the failure to
carry out some important direction of the law.
In the case of Cox v. Straight, volume 2 Hinds* Precedents, 142,
the House unanimously held that irregularities unaccompanied by
fraud did not vitiate the returns. Now, let us apply these salutary
rules to the case in hand. The proper inspector initialed the ballots
above instead of below the penorated Une. The ballot was given
to the voter, who marked the same, returned it to the proper inspec-
tor, who, on receiving the ballot, would determine that the ballot
was initialed by the proper inspector. By this procedure no spurious
ballot could have been placed in the ballot box and no fraud could
have occurred. The record does not disclose that either the electors
or the inspectors knew any mistake had been made in the initiahng
of the ballots. The ballots were voted and counted without their
validity being questioned. There is nothing to indicate that the
inspector who marked them, or the elector who voted them, dis-
covered they were not properly marked or that there was any wrong
intended by anyone in connection with the traiLsaction, nor could
it be told for whom any individual elector voted. Under such a
state of facts, should the electors voting these tickets be disfran-
chised? How could such a transaction destroy the integrity or
secrec3" of the ballot ? Your committee feels impelled to foUow the
reasoning of a long Une of decisions of the Supreme Court of Michi-
gan, and the conclusion reached in the Homing case, rather than to
adopt the more recent rule enunciated in the Kinehart case, and in
so doing hold that there was nothing shown by the contestant to
vitiate the poll in this township.
16 OOKTBSTED-SLBOnOK GASB OF CASVBY VB. SMITH.
SECOND PRKCINCT, SECOND WABD, BATTLE GREER, CALHOUN
COUNTY.
In this ward 375 votes were cast. The election officials in makinr
up the statement sheets showing the results of the dection omitted
(•o credit the candidates with the number of straight vot<es each can-
didate had received, and gave the candidates from governor down
only credit for the number of votes each had receivea upon the split
ticKets. The result showed that contestant had received only 23
votes and the contestee 31 votes. The straight Republican votes
had been rolled into a bundle and placed in the ballot box and some
one of the inspectors had marked the roll of ballots, "R straight, 66."
The straight Democratic ballots had been rolled in a bundle and
some one of the inspectors had marked on the bundle, ''D straight,
38." A memorandum of the result of the election w^s made by one
of the members of the board and placed in the ballot box. This
memorandum corroborated the figures that were made on the two
bundles. It being discovered from the statement that the candidates,
from governor dowTi, had not been given credit for the number of
votes received by such candidates, the board of county canvassers
caused the ballot box to be brought before them on the 13th day of
November, at which time there was present, in addition to the
board, the contestant. Subsequently, the contestee; John C. Davis,
the Republican congressional committeeman; George Huggett, attor-
ney for John M. C\ Smith; and the city clerk. The contestant and
no one on his behalf was present or haci any notice of this last meet-
ing. The poll book and tally sheet at this canvass showed that the
highest Republican elector, 96 votes; the highest Democratic elector,
57 votes: the Prohibition elector, 4 vot^s; Socialist elector, 108;
Socialist Labor elector, 18; National Progressive elector, 91; a total
of 304, the aggregate of which makes 374 votes and tallies within
one vote of as many as were on the poll list.
Ray Hart, the county clerk, was the custodian of one set of returns,
and one set wnth their contents and the poll books, tally sheets, and
statement books are required by law to be returned. He testified
that after discovering from the tally sheet that only split votes
had been credited to the candidates from the governor down he
called the attention of the county board of canvassers to the fact; that
the county board, after examining the books, requested him to sum-
mon before them the inspectors, together with the ballot box, which
he did: that the board of inspectors Upon convening took from the
ballot box several rolls of ballots; that they removed nothing else
from the rolls at that tim(»: that they did not open the rolls or in any
way attempt to count the ballots; that the inspectors stated to the
board of county canvassers that the memorandum on the back of the
rolls indicated the total number of ballots coimted; that is, '*D
straight" stood for Democratic straight, and the number stood for
the number of straight Democratic ballots. '*R" represented the
straight Republican ballots, and the figures on the back represented
the number in the roll, and so on down through the various rolls;
that the chairman of the board of canvassers, together with the two
inspectors, took a sheet of paper, and as one of the inspectors called
off the number that appeared upon the back of each one of the rolls.
OOKlMTaiKBUBOltOK OAM OF OAMdIT YB. Biftn!. 17
say, **R'' straight so many, and akmg on down, the chahman said,
^'u straight" so many, "o straight so many, and made a memo-
random; then the two in»pectar» preset who made thie memorai^
dum to^ it, in the presence of each of them, and corrected ih»
returns: that this added to the 31 votes already recorded for John*
M. C. Smith 66 strai^g^t votes, making a total of 97; that it added
to the 23 ahready recorded for Claude S. Carney 38 votes, mahiiig
him a total of 61.
It further appears that the board of inspectors were again con-
vened on the 19th day of November, and that the ballot box was
again unlocked, and Fred L. Christian, one of the inspectors, took,
from the ballot box a memorandum which he stated that he had
made the ni^ht of the election and at the time the straight ballots
were counted ; that this memorandum did not change the result made
by the board at the first meeting, but corroborated it.
Fred L. Christian corroborated Ray Hart in his testimony, and
states that on the night of the election he took a sl^ id pBp^
and wrote down all the stra^ht ballots and aH the split baflote of the
different parties voted for to see that the total was correct with the
number of ballots cast ; that he placed this paper in the box on the
night Oft the election; that when the ballot dox was opened on th^
12 th day of November he found everything in as &|ood condttic^ f»
could possibly be and As it was on the nk^ht of the election before'
sealing the box: that on the 19th day of November he compared it
with the returns that had been corrected and that it tallied with the
corrected returns; that he added the split votes to the straight votee
of the different candidates to make a total ; that the orimnat connt
omitted the straight votes for each candidate; that on the night of
the election the straight ballots of eftch party was rolled by iteeil, a
string tied around them, and marked so many straight ballots for
each party, whatever the party was.
Harry fcnristian, another inspector, corroborated the testimony of
the two preceding witneese^.
The contestant complams that the action of the county board of
canvassers and supervisors of the Section, in changing the final
returns, was in violation of the provisions of the law; tntit the board
of county canvassers were obliged to canvass the vote according to
the returns made by the inspectors on tlie night of the election; wai
the board of election inspeetors had no authority to reconvene and
correct the returns.
Section 3647, Michigan Compiled Laws, 1897, paragraph 174,.
provide^:
After the ballots are counted they fihall, together with one tally sheet, be placed itt
the bfdlot box, which shall be securelv sealed in gudi a maiinef that it caa aet be*
opened without breaking such seal. The ballot shall then be placed in charge of the
township or city clerk, out the ke^s of said ballot box shall be held by the cnaiiman
of the board and the election seal in the hands of one of the inspectors of election.
Section 3648, Michigan Compiled Laws, paragraph 175, provides:
That immediately after the count of Ihe tickets or ballets baa been comi^eted, the
result and the number of votes received by each candidate or person on the ticket
shall be publicly declared by one of Ae inspectors. The inspector shall then pre-
pare a statement of the result in duplicate slowing the whole number of votiee catfl-
tor each office, the names of Ae petBons for whom such Vtrtes were given atid the
number each person received, in which statementis the whole number of votes given
H. Kept. 202, 63-2 2
18 OONTBBTBD-BLEOTION 0A8B OF CABNBT VS. SMITH.
for each office, and the number given for each person shall be written out in words at
lenffth. Such duplicate statements, when certified by the inspectors and duly si^ed,
B^u] be deliverea to Uie township or city clerk, and shall by said clerk be, within
twenty-four hours after the result is declared, delivered in person or immediately
forwaxded by registered mail, one copy to the board of county canvassers in care o!
the judge or register of probate, and the other, together with one of the original tally
dieets, to the county clerk, which said statements and tall^ sheets shall be placed in
separate envelopes and sealed by said inspectors before their delivery to the township
or city clerk.
We call attention to the fact that one copy of the returns, by this
statute, is required to be made to the judge or register of probate,
and another, together with one of the original tally sheets, to the
county clerk.
By section 3665, Michigan Compiled Laws, 1897, paragraph 239,
it is provided:
That the board of county canvassers shall then proceed without delay to canvass
the return of votes cast for all candidates for office voted for and all other questions
voted on at said election, according to the returns filed in the office of the county
derk by the several boards of election inspectors of the various voting precincte
in the county, and the returns or tally sheets filed with the board of canvassers by
the central countLD«[ board in counties where a central counting board is provided
for counting the baUots cast in said county or any part thereof in lieu of their being
counted by the election inspectors of the voting districts. If it shall be found upon
tiie convening of said board of canvassers that the returns from any of the boards of
election inspectors of the several election districts, or the returns of such central
counting board are missing, incomplete, or incorrect, or for any other reason it is
found necessary, then said board of county canvassers shall have power to adjourn
from day to day until said returns shall have been procured or corrected. Said board
of canvassers are hereby empowered to summon the person or persons having the boxes
containing the ballots cast at such election and the keyv and seals of said boxes, or
having such returns or the poll books or tally sheets used and made at such elections,
to bring said boxes, seals, keys, returns, poll books, and taUy sheets before said board,
and said board of county canvassers are authorized to open said boxes and take there-
from any books or papers bearing upon the count and return of the election inspectors
of such election districts or the returns of such central counting board, but they shall
not remove or mark the ballots therein. Said board of canvassers may summon such
election inspectors or central counting board before them and require them to make
correct returns in case, in its judgment, after examining such returns, poll books, or
tally sheets, the returns already made are incorrect or incomplete, and they shall
canvass the votes from the corrected returns.
By the express terms of this statute the board of county canvassers
are given, if they find that a mistake has been made, the power to
correct the returns made by inspectors of any election precinct. It
is given the authority to summons the election inspectors before them
and require them to make correct returns, and, if in its judgment,
after examining such returns, poll books, or tally sheets, the returns
are incorrect or incomplete, to canvass the votes from the corrected
returns made by the election inspectors. This was all that was done
in this ward. It is true that the board of county canvassers them-
selves first (corrected the returns by resorting to evidence outside of
the board of election inspectors; then to make sure that they had
made no mistake they called the election inspectors, who went over
their canvass and who fully corroborated it.
The contestant relies upon the case of Roemer r. Canvassers {9Q
Mich., 27). In this case tne Supreme Court of Michigan says:
We are all satisfied, however, that the canvassing board had no right to accept or act
upon the second return of the inspectors; that such second return was a nullity,
when the inspectors had completed their count and executed and delivered the
returns, their legal powers ended, and any attempt on the part of the inspectoTB to
change or modify such original returns in any particular involving any other than a
mere clerical duty was clearly beyond their powers.
CONTESTED-ELECTION CASE OP CAENEY VS. SMITH. 19
The decision further says:
It is not necessary to go to the length of holding that a clerical error which is patent
upon the face of the papers may not be corrected by the board of inspectors after the
returns have been made up and signed, but that question is not now before us.
In the case now under consideration it might well be said that the
mistake that was made in this ward, being apparent from the face
of the papers, from the fact that the presidential electors had received
a vote lai^ely in excess of the candidates from the governor down,
was merely clerical, and that the board, from the evidence before
them, had a perfect right to correct the returns, but in order to reach
a proper conclusion it is not necessary for us to so hold. In the
above-cited case the Supreme Court of Michigan granted a writ of
mandamus to compel a recount of the ballots and to seat the person
having the highest number of votes in the ward. This is significant
as showing that the supreme court intended that where a mistake
was manifest upon the face of the records that such mistake should
be corrected by the proper tribunal, and did not hold that such mis-
take should vitiate tne entire poll of the ward.
The decision in the case oi Roemer v. Canvassers (90 Mich., 27)
was made on the 22d day of January, 1892. Subsequently the legis-
lature of the State enacted paragraph 239 of the Compiled Laws of
Michigan, 1897, expressly granting to the board of county canvassers
the right to call before them the proper witnesses and correct any
mistake that was manifest upon the face of the returns.
The statute above quoted gives to the board of county canvassers
and the board of election inspectors absolute authority and power to
do preciselv what they did in this case. It was not shown, and in fact
not even claimed, that John M. C. Smith was not credited with everv
vote that he received in this waid or that the contestant, Claude o.
Carney, was not credited with everv vote that he received. To
vitiate this entire poll on account of tne things complained of by the
contestant, when such acts were expressly authorized by the statutes
of Miclugan, and, in the face of the fact that no fraud actually or
constructively existed, would be repugnant to our ideas of right and
justice.
The foregoing seven precincts cover those particularlv complained
of by contestant in his initial brief. In his notice of contest and
initial brief he claimed that another group of voting precincts, where
instructions were given to voters, they were assisted m marking their
ballots without an oath being administered, as required by the
statutes, that such ballots should be excluded.
It is sufficient as to this compiaint to say that the contestant
rehes upon the case of The Attorney General ex rel. Reynolds v. May
(99 Mich., 568), in which a majority of the court holds that such
ballots should be cast out. The contestant dismisses the subject
in his brief with this statement:
If this rule is adopted in the settlement of this contest, then the result of applying
the rule as to the actual illegal votes of that nature shown in the entire record will not
affect the standing of either party to this contest.
20
OOKnSTlD-BUDOTZON OAiB OF GABiniT Va BIflTH.
He concludes his brief with a tabulated statement as to how the
Tarious precincts should be treated, as follows:
Original total vote
CUbax Township, KalaaaMO C^nnty:
OrfcUial vote—
For Smith 8S
ForCarney 82
Cdmcted vote by conaent--
For Smith 90
ForCamey 100
Gate—
For Smith 7
Fbr Carney 18
ThM ward, citv of Cterlotte, Eaton County:
Original vote—
For Smith SU
For Carney IIA
All should be thrown out.
For Smith 214
For Carney 116
Snnfleld. Eaton County:
Ortglnal vote—
For Smith , 174
For Carney 104
All should be rejected.
For Smith 174
For Carney 104
Second ward, city of Charlotte, Eaton County:
Oriffhuil vote-
Tor Smith 161
For Carney 107
All should be refeeted.
Lo«9—
For Smith 161
For C^mey 107
Carmel Township, Eaton County:
Ofifdnal vote-
Tor Smith 137
FwCamey 82
All should be lejee ted.
Loss—
ForSmltli 137
For Carney 82
Wliuiir Town^ip, Eaton Chanty:
(^idnal vote-
Tor Smith 174
ForCamey HI
All should be thrown out.
For Smith 174
For Carney 02
0MMd Preateot, second ward, elty of Battle Creek
Calhoun Coiuity:
First return—
For Smith di.
For Carney 2B
ChaBM retuin»~
For Smith 97
ForCamey 61
At last figures were included !■ face of retiunu
there should be deducted—
FromSmttb... 66
From Carney 38
Total.
Deduct.
Smith.
14,600
Gain.
919
13,090
214
174
161
137
174
66
919
Carney.
14.482
Gain.
18
"
521
13^961
18
IM
IM
107
98
IS
S21
Total corrected vote for Carney 13, 961
Total corrected vote for Smith 13,
Plurality fw Carney .
n
G0H1!B8TBD-BUB01CI0N CASB OF OABITBY TS. SMITH.
21
HoweTBT, in ^ suppliomental brief filed by the contestant he set
forth a 'tabulation m the votes of this character, which he claimed
ahould be cast out as foUows:
KEdmuDBoo oitT:
Tliird prodnpt
VooTtfa prectnot
Ninth preoinct
Tenth prednot
Twelfth precinct. . .
Thirteenth preotnot.
Fourteenth precinct
Texas
tteading
E an, first ward
ivue
lotte:
Second preolnot
Third precinct
Winaor
Sonfield
Carmel
,
Carney.
Smith.
122
113
104
144
IW
157
175
151
80
11&
122
73
250
leo
m
MO
06
65
ISB
122
198
111
166
M
107
Ml
116
174
02
104
174
82
137
yo^m-
i
7
5
3
2
5
4
6
2
2
3
2
2
7
8
lAU illegal.
Proportionii^ these illegal votes to contestant and contestee, the
following rasulte:
KJUamacoo dty:
Third precdnct
yvuith pncimrt
Seventh precinct
Hinth proelnot
Tenth nrednct
Twdhn precinct
ThlrtMiithpf«Binot.
Fourteenth precinct.
Befbding
Afbion, fint ward.
Bellerue.
Charlotte:
Second preoiBCt.
Third precinct..
Winaor
Carney.
Smitjft.
1
1 4
3
3
2
2
1
I
1
1 3
«
1 3
1
3|
»
2
1
1
> 2
1
I
t 1
1
t %
4
I 3
i
Carmel.
92
1<H
82
Total low.
310
ifi
13f
510
Total lose, Smith
Deduct Carney loss from Smith loss.
Dedoot Smith plurality.
510
m
»o
116
Leaves plurality for Carney 84
It will be noticed from the foregoing tabulation that if the commit-
tee concurred with the conclusions of the contestant that, exclusive
of the entire poll of Winsor, Sunfield, and Carmel precincts, the con-
testant himself claims a total of 57 votes of this character that should
be thrown out. We have heretofore shown that the poll in each of
the three precincts, Winsor, Sunfield, and Carmel, should not be cast
out.
It is well settled by the precedents of the House that illegal votes
in any poll should be taken from the total vote of the poll propor-
tionately according to the entire vote returned for each candidate.
22
COKTBSTBD-ELBOTIOK CASE OF OABNEY VS. SMITH.
The record does not disclose the votes that were cast for each of the
congressional candidates in the precincts where we have found illegal
votes, and for that reason and the further reason that it does not
affect the result, we have apportioned these illegal votes between
the contestant and the contestee in proportion to the votes that each
received in the several precincts.
Precinct.
Kalamasoo:
Thinl...
Fourth..
Seventh.
Ninth...
Tenth
Twelfth....
Thirteenth.
Fourteenth .
Texas.
Reading
Albion, first ward.
Belle vue
Charlotte:
Second
Third
Total loss.
1 Carney.
Smith.
1
1
4
3
3
2
; 2
1
I 3
3
3
2
1
2
1
1
3
3
32
25
1
Deducting Mr. Smith's loss from Mr. Carney's loss makes a gain of
7 votes for Sir. Smith, which added to Smith's plurahty, conceded to
be 116 votes upon the face of the returns after making the correction
for the township of Climax, county of Kalamazoo, would givjB Mr.
Smith a majority of 123 votes.
The record in the case was most voluminous, containing more than
600 pages, covering many points in controversv, but your committee
has aimed to give each question careful consideration and apply the
facts and the law as to it seemed just and proper, in order to determine
the question whether Mr. Carney or Mr. omith was elected. The
committee has tried to rise above the question of partisanship, and
endeavored to determine from all of the testimony who was in fact
elected by the voters of the third congressional district of the State of
Michigan. In passing this case, the committee feels that there is
ground for complaint asainst some of the provisions of the election
laws of the State, as well as against the manner in which elections are
conducted in that State. This is the second contest which your com-
mittee has had under consideration, coming from the State of Mich-
igan, having had before it the case of William J.MacDonald v.H.Olin
Young, reported at the first session Sixty-third Congress.
The fact that under the election laws of the State of Michigan
township officers are principally made the judges and clerks of the
election frequently results m an entire board being of one political
complexion only. Such a condition must inevitably give rise to
election controversies and engender serious complaints of mere irreg-
ularities. This is clearly exemplified from the fact, which is alleged
by the contestee in his answer and shown by the testimony in the
case, that the irregularities complained of by the contestant in his no-
tice of contest were more or less a common thing throughout the en-
tire district in this election. In fact irregularities existed in many
of the precincts which were carried by the contestant as well as those
carried by the contestee. Your committee, from a research of the
00K1E8TED-ELEGTI0N CASE OF OABNEY VS. S2IOTH. 23
evidence disclosed by the whole record, are unanimously of the opin-
ion that if the various polls which the contestant .insists should be
entirelv thrown out on account of the irregularities, which we have
heretofore pointed out, then a greater number of precincts that were
carried by the contestant in which similar and other irregularities
occurred would have to be thrown out, and in this respect the seat of
the sitting Member would not be disturbed. Such a state of affairs
should not exist in anv State of the Union. Elections should be
fairly and honestly conducted and free from any irregularities tending
to create the least suspicion. A board created by the law with the
important duty of conducting an election should oe as near nonpar-
tisan as is possible.
Take as a concrete example the irregularities complained of in the
instant case in Sunfield Township,. Eaton County, where the board
of inspectors called in Albert Sayer, as an instructor,^ and who de-
livered the ballots to the voters in that precinct durinjg the entire
day of the election. This was a most e^gious irregularity and your
cominittee do not hesitate to condemn it with many other practices
Sermitted in the conduct of the election as disclosed by the record.
I these practices are permitted to continue in the State of Michigan,
then we may expect more contested cases to arise from that State.
But, where no fraud, actual or constructive, is shown, we believe it
is a monstrous proposition to say that the voters of an entire precinct
shall be disfranchised upon a mere irr^gularijby. The law shoidd not
be so construed as to make the machinery oi an election a snare to
entrap the unsuspecting voter. For your committee to hold that
many of the irregularities complained of in this case should vitiate
the election in the precincts where the irregularities occur, would be
to charge the individual voter with knowledge of the personnel of
the inspectors or of those designated to assist them. So far as we
know, judges and clerks of election have no insignia of office. In
STinfield Township, Eaton County, we do not believe that it was
incumbent upon each individual voter when he entered the voting
place to cast nis ballot to determine the authority of those in charge,
or that if he did not he voted at his peril.
The voter in this precinct was not bound to suspect that those who
were there conducting the election were not there by authority. If
Albert Sayer in this precinc£ was not there assisting in the conduct of
the election by authority of law, he was in fact a de facto officer, and
your committee believes that in the absence of any showing of
iraudulent conduct upon his part that it would be a preposterous
proposition to annul the entire poll of that precinct on this account
alone. A like line of reasoning, and we thinic upon principle, can be
appHed to each and every other ward and voting precinct complained
OI Tby the contestant. It being conceded that the votes cast for the
contestee in the several precincts complained of were cast by honest
voters and quaUfied electors of the district, then we submit that the
case should not be decided upon any technicalities arising in the
manner or form in which the voter received his ballot or in the count
thereof.
As a comparison of the irreguliirities complained of by contestant
and contestee, we call attention to the townsnip of Readmg, Hillsdale
County. In this township Claude S. Carney received 183 votes
and John M. C. Smith 122 votes, a plurality of 61 votes for Carney.
84 OOtffMlXD-BLBOISbN CAfli OF OAUniT YV. fllOVH
In this precinct the ballot box wUish had been furaiahed by the prop^
legal autiiorities beeama filled up and the board was oompefled to
St another boz. T^f procurod a wooden box, nailed up, wii^ t
^t cut into the top. There was no lock on the box. Ilie inspectm
rsoeived and plaem the ballots within this second box. The voting
was held in the village lull, whioh was upon the second floor. Some
disabled voters were unable to elinib tas stairway and one efeetioa
ineoeetor, with a Demoeratic and Republican chaflenser, went dovn
to the street, delivered to three voters ballots whiim were marked
by the voters, their ballots folded up; then they took the ballots
upstairs and {daoed them in tho ballot box. The procuring of the
second ballot box was unauthorized by law, but this could amount
to nothing more than a ooadkum over whicfa the judges and d«rks
of the election had no control. . Peivnatting votani to reoeiw and
mark ballots outside of the booths was not only an irregularity bat
absolutsly prohibited 1^ law. Yet these inatanoes are no more a
flagrant violation of tibe eketion lavm of Midiiga i than the various
instanoes complained of in the seven preeiaDta relied upon by the
contestant.
In the seventh precinct, city of Kalamaxoo, evidence was intro-
duced to show that women were peraiitted behind the raiUng at the
voting places, and that a women by the nasne of Marsh aamsted in
handing out to the voters ballots, and that she handed out the hsl-
lots instead of the inspector, and did this several times. This testi-
monjr was sworn to by B. O. Bush, one of the inspectors of the Sec-
tion in the precinct. The evidence upon the pcant that Miss Marsh
handed out baUots conflicted and she herself denies the accusation.
At the time of the general November election, 1912, the question of
woman suffrage was also submitted to the voters ; the legislature parlor
thereto made a provision to the effect that women chaUengera might
be within the railing, but did not authorise them to receive and
deposit ballots. In many of the precincts throughout the district,
under the provisions of this act, women were permitted within the
railing. In ttiis precinct the contestant received 196 votes and the
contestce 157, giving contestant a plurality of 39 votes. It will thus
be seen that if your conunittee were to decide this precinct in favor
of the contest ee, and concur in the opinion of the Supreme Court of
the State of Michigan^ that by the provisions of the Michigan laws, to
the effect that no one but an inspector can receive a ballot, is man-
datory, the contestant must necessarily lose 39 votes. We do not
deem it expedient on account of the extreme lengtli of this report to
analyze in detail all of the irregularities complained of by the con-
teetee in his answer to the notice of contest or in his brief, and to
which the evidence was directed in each and every case, but wifl be
content with the statement that a careful analysis will disclose that
if the committee adopted the decisions of the highest court of the
State of Michigan, holding that many of the provisions of the law of
that State to be mandatory, so far as they relate to the conduct of
elections, that we would be compelled to find that the contestee was
elected by a lai^er majority than was shown by the returns and
official canvass made by the canvassing board.
The contestant SLed three briefs with the "committee. In each
brief he set forth a tabulation of the votes to which he claimed he
was entitled upon his assertion of facts and conclusions of law. In
CONTESTED-ELECTION CASE OF CABNEY VS. SMITH.
25
his first brief; page 25^ he claimed that the record entitled him to a
plurality of 271 votes; in his second brief, page 7, he claimed that he
was entitled to a plurality of 229 votes; and in his third brief he
claimed only a plurality of 84 votes.
The conoimittee, after careful and patient study of this case and a
close analysis of the various irregularities complained of, determine*
that Claude S. Carney is entitled to 100 votes in the township of
Climax, county of Kalamazoo, and John M. C. Smith is entitled to
90 votes in that township, and that there should be deducted from
the plurality of John M. C. Smith on account thereof 11 votes; that
there should be deducted from the following precincts illegal votes as
follows:
Precincts.
Kalamazoo dty:
Third
Fourth
Seventh
Ninth
Tenth
Twelfth
Thirteenth. .
Fourteenth.
Precincts.
Texas
Reading
Albion, first ward
Bellevue
Charlotte:
Second
Third
Votes.
2
3
2
2
7
8
67
A total of 57 votes; that these should be proportioned to con-
testant and contestee, as follows:
Precincts.
Kalamasoo city:
Third
Fourth
Seventh
Ninth
Tenth
Twelfth
Thirteenth...
Fourteenth..
Carney.
Smith.
4
3
3
2
2
1
1
1
3
2
3
1
3
2
2
0
Precincts.
Texas
Reading
Albion, first ward
Bellevue
Charlotte:
Second
Third ^
Carney.
1
2
1
1
3
3
32
Smith.
1
1
1
1
4
5
25
That the difference between these losses should be added to the
plurality of John M. C. Smith; and that he was elected by a plurality
of 123 votes.
Your committee, therefore, offers for adoption the following reso-
lutions:
Rtsolved, That Claude S. Carney was not elected as a Representative to the Sixty-
third Congress from the third con^reaaional district of Michigan; and
Resolvea, That John M. C. Smith was dulv elected as a Representative from the
third congressional district of Michigan to the Sixty-third Congress, and is entitled
to retain tne seat which he now occupies in this House.
Respectfully submitted.
J. D. Post, Chairman,
Hubert D. Stephens.
Charles R. Crisp.
George McClellan.
Charles M. Borchers.
Walter Elder.
Burton L. French.
James A. Frear.
Walter M. Chandler.
I \0'- ;"!
kM% 91 h
/ -
HARVARD LAW SCHOOL UBRARY
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