In the matter of the contested election of Experience Estabrook as delegate from the Territory of Nebraska to the thirty-sixth Congress, Samuel G. Daily contestant.  January
6, 1860.SIR: In accordance with my promise I lose no time in apprising you of the decision of the counsel for Mr. Daily to proceed no further for the present with the examination of witnesses in his behalf in pursuance of the notice heretofore given. Whether any further testimony shall be taken in his behalf is a question reserved for after consideration. You will, of course, understand that his right to do it without qualification is not intended to be hereby waived or impaired. Should it be deemed necessary to exercise it a new notice to that effect will, of course, be given. The particular object of this communication, as you are aware, is to afford an opportunity to you to take evidence on your part without obstruction from us. Yours, respectfully, ALFRED
CONKLING,Attorney
for contestant.J. S. Kinney, Esq., Attorney for Estabrook. When this notice was served the contestant had not introduced any testimony tending to show the number of votes polled, or the majority your memorialist received over the vote given for Mr. Daily, and I was written to immediately by my counsel that, as the testimony was closed on the part of the contestant, omitting this proof, without which the contestant must fail, that it was entirely unnecessary to take any testimony on the part of your memorialist. Accordingly, relying upon this fatal defect, and the fact that no additional notice was served to supply the ommission, the counsel of memorialist did not take any testimony, save that of one witness, examined by consent long prior to the time the case was closed by the contestant. When the notice was served there was no necessity for rebutting any presumption which might arise in favor of Mr. Daily. There could not be any purgation of votes so as to prejudice the right of memorialist to hold his seat, as the official majority had not been established. The case |
remained in this condition, so far as your memorialist or his council [counsel] had any knowledge, until the testimony transmitted by the magistrate was opened by the clerk of your honorable body at the expiration of the sixty days, (after which no testimony can be taken except by order of the House,) and to the utter astonishment of your memorialist and his council [counsel], it was found that the important omission referred to was supplied by a certified copy of a certain "abstract," and that other documentary matter, treated by the committee as evidence, had been interpolated into the record, injurious to the rights. of your memorialist. Your memorialist would particularly refer to that which purports to have been the proceedings of a public meeting in Buffalo county, p. 74 of the testimony; and the letter of Gov. Black, p. 95, and the certified copy of abstract, p. 98, all made to occupy a prominent place as evidence in the report of the committee, and without which no report could have been made against your memorialist, and which neither your memorialist nor his council [counsel] had ever seen, or had an opportunity to attack, disprove, or impeach, believing, under the notice that the testimony was closed, that nothing intended as evidence would be introduced without first giving the "new notice" promised. Hence, on appearing before the committee your memorialist was taken entirely by surprise; but, trusting that matter introduced under such circumstances would not be regarded by the committee as evidence, he went to a hearing without asking for time to explain it, and impeach the presumptions raised by the entire evidence. Your memorialist, therefore, would ask for a reasonable time to take testimony, and would adduce as reasons--- First. That he did not introduce witnesses, because, as the case stood when the notice referred to was served, it was unnecessary. Second. The evidence adduced afterwards was without notice, and in the absence of such evidence the committee could not have done otherwise than report in favor of memorialist. Third. Memorialist would have taken testimony, and could have explained and overthrown the supposed prima facie case made by contestant, if his counsel had not im- |
plicity relied upon the notice that no more testimony would be taken, &c. Fourth. If time is given, he will prove that in Gage county, where a majority of forty-two was counted for Daily, there was no organization according to law, and that after the election the legislature passed an act legalizing the organization; and the same reason exists for throwing out this vote as influenced the committee in exeluding Buffalo county. Fifth. Your memorialist will also prove beyond cavil, that the vote of Buffalo county, as counted by the canvassers, including Kearny City precinct, did not exceed the actual legal votes in that county on the 11th day of October last; and that the voters in Kearny City precinct were legally such, and should not be disfranchised. Sixth. That he has been informed and believes that there were and are settlers in Izard and Calhoun counties, and that he can establish the regularity of the election in those counties by competent testimony. Seventh. That he will prove that the election in l'Eau qui Court county was conducted according to law, and that the persons whose names appear as voters were actual residents and entitled to vote at said election. From these counties the committee have deducted from the vote of your memorialist four hundred and eight ballots, by which they elect Mr. Daily; and, if time is given for taking testimony, will be by the same committee reinstated and placed again to the credit of your memorialist. Eighth. Your memorialist will also prove that a large number of fraudulent votes were cast and counted for Mr. Daily in Nemaha, Richardson, Otoe, Douglas, Cass, Cedar, and other counties, and that there was gross fraud and illegality in making up the returns in Nemaha county, by which Mr. Daily received a large number of illegal votes in the final count. All of which was charged in the answer to the notice of contest, and could and would have been proven, had it not been for the fact of the important omission in the contestant's testimony, before referred to, and the notice that no more testimony would be taken, &c. In view of these facts, under the peculiar circumstances of this case and to the end that justice may be done to your memorialist, he would respectfully pray your |
honorable body for such reasonable time as may be necessary to explain the evidence taken by Mr. Daily, to confirm the vote counted for memorialist, and to bring to light the frauds perpetrated upon the ballot box by the other side, by which the vote of contestant was largely increased. E.
ESTABROOK.Richard Wigginton Thompson, a prominent politician, of Indiana, and secretary of the navy in the administration of President Hayes, summed up the case for Daily, but it is omitted, inasmuch as the report of the friendly partisan committee on elections, which follows, covers the same ground.
Mr. Campbell, from the Committee on
Elections, submitted the following The Committee on Elections, to whom
was referred the, memorial of Samuel G. Daily, contesting
the right of Experience Estabrook, the sitting delegate, to
a seat in the 36th Congress, as the delegate representing
the Territory of Nebraska, beg leave to submit the following
report: |
Estabrook the aggregate of 3,100 votes, there has been counted for him 292 votes as polled in the county of Buffalo, 28 votes as polled in the county of Calhoun. 20 votes, as polled in the county of Izard, 20 votes as polled at the precinct of Genoa, in the county of Monroe, and, according to their estimate, 68 votes as polled in the county of L'Eau Qui Court, all of which are illegal. And they will proceed to state the reasons which have brought them to this conclusion. 1. As to the votes from Buffalo county: By an act passed by the legislature of Nebraska Territory March 14, 1855, provision was made for the organization of this county. This is its language: "That all that portion of territory included in the following limits is hereby declared organized into a county, to be called Buffalo: Commencing at a point in the centre of the Platte river, ten miles east from the mouth of Wood river, running thence westward up the southern channel of the Platte to the mouth of Buffalo creek; thence north thirty miles; thence east to a point directly north of the place of beginning; thence south to the place of beginning. The seat of justice is hereby located at Nebraska Centre." No steps were taken, under the laws of the Territory, for the organization of this county by the election of officers; and it is the opinion of the committee that without such election there could be no organization. The act of the legislature does not organize a county; it merely provided for and authorizes an organization--that is, it authorizes an election to be held for county officers, under the general law regulating elections. If no such election is held, the county, notwithstanding the act of the legislature, cannot exercise any of the powers of an organized county, and cannot legally vote either for territorial officers or delegate to Congress. The legislature of the Territory of Nebraska has provided by an act "in relation to new counties:" "That whenever the citizens of any unorganized county desire to have the same organized, they may make application by petition, in writing, signed by a majority of the legal voters of said county, to the judge of probate of the county to which such unorganized county is attached, whereupon said judge of probate shall order an election for county officers in such unorganized county." It then provides for a notice of the |
election, and a return of the votes "to the organized county," the execution of the necessary bonds by the officers elected, and the entire mode of consummating the organization. And it further provides that until this is done "all unorganized counties shall be attached to the nearest organized county directly cast of them for election, judicial, and revenue purposes.'51 The committee do not suppose that the legislature intended to dispense with this mode of organization by the simple use of the word "organize" in the act creating a county. To suppose that they did would be to assume that they designed to prevent an election by the people of the necessary county officers. They know of no possible mode of legally organizing a county except by the election of officers by the people--a rule which must meet with universal assent under a popular form of government. It is not pretended that Buffalo county was attached "to the nearest organized county directly east of'" it for election purposes, for the vote is reported from Buffalo county directly; and hence, the only question to be inquired into is, whether or not it was so organized as that a vote could be legally polled within it? It appears from the evidence that in May preceding the election the governor of the Territory was solicited "to appoint the county officers for Buffalo county," but that finding himself possessed of "no such power," he declined to do it. The governor was clearly right in this determination. He had no power to appoint officers; not even to fill a vacancy. He had once possessed this latter power, but the legislature had taken it away, and had provided that the vacancies should be only filled by election. But he was as clearly wrong in the other conclusion to which he came. He says that he considered "that Buffalo county was fully organized by the act of the territorial legislature." How it was organized without officers, he does not say, and the committee have already stated that, in their opinion, such a thing is impossible. But, acting upon this strange assumption, he says he advised the course which he considered necessary to be taken. This was, that application should be made to the county commissioners of the nearest county on the east to have the initiatory steps taken for the election of county officers. It is not material to inquire whether he was right or wrong in this, because it |
does not appear that any such steps were ever taken. On the contrary, it is in proof that a few persons met together, without any notice, and, after the manner of a public meeting for political or other purposes, elected a president and secretary, and, upon mere motion and vote, chose all the county officers. The proceedings of the meeting were signed by the president and secretary, and forwarded to the governor; who, upon the strength of it, commissioned the officers so chosen, although there is no law authorizing him to issue commissions to county officers. And these are the officers who must have conducted the pretended election in Buffalo county, and who returned the 292 votes sent from that county for the sitting delegate. The committee consider the whole of these proceedings irregular and void in law. The committee cannot omit further comment upon this extraordinary proceeding; for, to your committee, extraordinary it seems, in every sense of the term. The meeting was held on the 25th of June, 1852, at the place designated in the act of the legislature as the county seat, and where, according to the proof, there is ""one dwelling-house, one storehouse, one barn or stable, and one warehouse," and where but "three persons" constituted the population. The object of the meeting was avowed to be the "recommending suitable persons to fill the several offices of Buffalo county." And this object was carried out by the simple adoption of the several motions put to the meeting. For example: Mr. Charles A. Henry moved that Henry Peck be chosen probate judge, Charles T. Lutz sheriff, Joseph Ruff commissioner of one of the precincts, Patrick Care justice of the peace, and John Evans constable, and they were all so chosen by the adoption of the Motion. And so of all the rest. And then it was resolved "that Dr. Henry, with men living in the eastern precinct, do have them recommend suitable persons to fill the offices of justice of the peace and constable" in a precinct not supplied with officers at this meeting. And the whole proceedings closed with a resolution to the effect that the meeting "recommend" the aboved-named gentlemen to hold the several offices to which they have been nominated by this meeting, and request the governor of this Territory to commission them for said offices." It will be seen that this meeting merely "nominated" |
these officers, and recommended them to be commissioned by the governor; or, in other words, that it designed that the governor should appoint them. It has been already stated that the governor had no such power--that he could have nothing to do with the selection or commissioning of officers. Yet, notwithstanding this want of power, he did both appoint and commission the persons recommended and nominated by this meeting, and several others who were not recommended. It needs no argument to prove that no authority to bold an election or to transact any county business was conferred upon these persons by his act, and that all their proceedings are absolutely void. It is of no consequence to inquire what power he considered himself as possessing, since the fact that he did appoint them appears in proof. In a letter dated July 26, 1859, and written from the "executive chamber," to one of the persons nominated to him, he says: "I have this day appointed the following officers," &c., going on to enumerate those who were nominated by the meeting. All these proceedings were in clear violation of law. The foregoing facts in relation to the pretended organization of Buffalo county being made by the contestant, and the sitting delegate having offered no evidence of any other organization, it is necessarily to be inferred that there was no other; since, if there had been, he would have had no difficulty in showing it. Indeed, he has left it to be inferred from his mode of cross-examining the governor, whose testimony has been taken, that he did not rely upon any organization, but upon the legality of that made by the governor. The committee, therefore, conclude that there was no other, and have no difficulty in deciding that to be clearly in violation of law. The 292 votes which were returned from Buffalo county were, therefore, illegally counted by the canvassers for the sitting delegate, and should be deducted from his poll. It is apparent to the committee, from the proof in the case, that the parties who perpetrated this fraud were well aware of it. Of the 292 votes returned and counted from Buffalo county, 238 of them were reported as having been polled at a place called "Kearny City" and the certificate accompanying the returns state[s] that this place is "in the county of Buffalo." This is not correct by the act laying out the county, as already quoted; the south boundary |
is the Platte river, so that no part of it extends south of that river. Yet it is in proof that "Kearny City" lies on the south side of the Platte! A fact which must have been known to all the persons engaged in perpetrating this fraud. Such men would have no difficulty in contriving to furnish a list of votes for the whole county as easily as those furnished for this place, and doubtless did the entire work from the same motive. It is scarcely possible that, Buffalo county could have furnished so large a vote as 292; to have done so it must have been the sixth county, in point of population, in the Territory, and must have contained at least 1,500 inhabitants. The proof is, that there are "not over eight houses," and not "exceeding fifteen residents," and not "one acre of cultivated land or a farm-house," at or in the neighborhood of Kearny City; that at Nebraska Centre, the place named in the act as the county seat, there is only "one dwelling-house, one storehouse, one barn or stable, and one warehouse," one farm in cultivation, and one or two near by opening for cultivation; and at Centralia there was but a single individual. The sitting delegate does not offer to show any other settlements than these, and the committee are left no other alternative but to conclude that there are no others; if there had been it was his duty, after this proof made by the contestant, to have shown it. Hence, the whole of this vote of Buffalo county must be set aside as illegal and fraudulent in the opinion of the committee. II. As to the votes from Calhoun county: It is not pretended that Calhoun was an organized county, within the meaning of the statute. The act defining its boundaries is entitled "an act to establish new counties. &c.," and it was, therefore, in the same condition precisely as Buffalo county; that is, the act authorized such steps to be taken, without additional legislation, as, were necessary to its organization. Like Buffalo, it could have been organized by the proper application to the county commissioners or probate judge (no matter which) of the nearest county on the east. But nothing of this kind was done. On the contrary, it was attached to the county of Platte for election purposes, and constituted a voting precinct of that county; and as such voting precinct it was the duty of those who had charge of the election there to return the poll-books to the clerk of Platte county, whose 21 |
duty it was, by law, to send an abstract of them to the governor. But this was not done. Instead of doing it they sent the returns directly to the governor, and they were taken out of the post office by his private secretary, who opened and examined them, and then sent them himself to the clerk of Platte county, with directions to return them with the Platte county returns. This was manifestly a violation of law. The law of the Territory, as also of all the States, has pointed out a particular mode of making election returns, and has designated particular officers who shall open and inspect them. If they are opened and inspected by any others they are thereby vitiated; for if such a practice were tolerated innumerable frauds might be perpetrated, and the popular will defeated. By the law of Nebraska Territory the votes polled in Calhoun County could not be properly opened by any other persons than the probate judge and three disinterested householders of Platte county. Yet it is in proof that they were opened by the private secretary of the governor, and it is not proven or pretended that the probate judge, or any three householders of Platte county, ever saw them. On the contrary, it is proven that they were sent by the private secretary of the governor to the clerk of Platte county, and by him sent back to the governor. The clerk must have opened them himself; this is the necessary inference. In the opinion of the committee, therefore, this violation of law vitiates the whole of the returns from Calhoun county. And the committee think that, for another reason, they should be set aside as fraudulent. The contestant has proven by competent witnesses that the entire settlements in this county consisted of two families in the northwestern part, and four families in the southeastern part of the county, and that the whole voting population of the county does not exceed six! Yet there are 32 votes returned; 28 for the sitting delegate, and 4 for the contestant. One witness who has resided in the county swears that he does not know of a voting precinct in the county, or of an election being held. Another swears that he saw the returns in the clerk's office of Platte county, where they were sent by the private secretary of the governor; that he took from them the names of the persons who were represented as having conducted the election, and when these names were shown to the witness who had |
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