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1st Session.

No. 385.

JOHN M. BURNS vs. JOHN D. YOUNG.

APRIL 6, 1874.-Laid upon the table and ordered to be printed.

Mr. CROSSLAND, from the Committee on Elections, submitted the fol

lowing REPORT:

The Committee on Elections, to whom was referred the contest of John M. Burns against John D. Young, claiming a seat in the House of Rep resentatives of the Forty-third Congress as Representative from the tenth congressional district of Kentucky, submit the following unanimous report:

The credentials of the sitting member exhibit the votes received by each, as follows:

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The grounds of contest are contained in the notice of contestant, a copy of which is here appended:

No. 1.-Notice of contest.

Mr. JOHN D. YOUNG: You are hereby notified that I will contest your right to a seat in the Forty-third Congress as a member elect from the tenth congressional district in the State of Kentucky, on the following grounds:

1st. Because you did not, at the election in said district on the 5th day of November, 1872, receive a majority of the legal votes cast at said election in said district.

2d. Because votes were counted for you and against me at said election, when the pollbooks were not signed by the proper officer as required by law; nor were said poll-books and the votes for Congressmen certified as the law required.

3d. Because the ballot-box at the Dry Fork precinct, in Lawrence County, in said district, was not sealed; nor was the poll-book sealed; nor were said box and book carried to the

county court clerk of said county by an officer of the election, or by any one in the pres ence or company of such an officer, but was carried by a boy some fifteen or sixteen miles in said condition, and by him delivered to the clerk.

4th. Because the poll-book at the Deer Creek precinct, in Carter County, in said district, was not signed or certified as required by law.

5th. Because ballots or votes legally or properly cast for me in the counties of Bracken, Nicholas, Robertson, Rowan, Mason, Bath, Boyd, and Fleming, in said district, were illegally, wrongfully, and fraudulently thrown out, and not counted, by the precinct and county election boards of said counties.

6th. Because in the computation of votes or ballots cast in the counties last above named the various election boards of said counties counted for you more votes than you received.

7th. Because I received at said election in said district a majority of the legal votes cast therein; and, for the reason herein set out, I will claim the seat in said Congress from said State and district as member elect therein.

Respectfully,

DECEMBER 23, 1872.

JOHN M. BURNS.

The answer of contestee denies each of the grounds presented by the notice, and makes the following "charges" in regard to the votes received by contestant:

1st. You did not receive a majority of all the legal votes cast at said election, in said district, on the 5th day of November last, and I did.

2d. Illegal votes, and votes by minors and persons who had not resided in the counties and precincts the time required by law, were cast for you in each precinct of said district. 3d. Voters were directly and indirectly bribed to vote for you, by the free use of whisky, money, and property, in the counties of Lewis, Greenup, Boyd, Lawrence, and Martin, and said voters did, under said influences, vote for you, and in said counties many voters were awed and intimidated, and prevented from voting for me and forced to vote for you. 4th. I charge that at every precinct in said district where you received a majority the pollbooks and ballot-boxes were not signed and sealed and delivered to the clerks of the various county courts, as required by law; and votes were obtained for you at each of said precincts by bribery, fraud, and intimidation.

5th. I charge, and will prove, that all the votes cast for you in the counties of Nicholas, Robertson, Bracken, Mason, Fleming, Lewis, Greenup, Boyd, Lawrence, Martin, Johnson, Carter, and Rowan were illegal and void, being in violation of the fifth section of the act of the Kentucky legislature in regard to voting by ballot, approved March 27, 1872, which is as follows:

"All ballots shall be printed or written on white paper, and shall have on them the name of the person voted for, and shall have no other distinguishing mark on them, and each ballot shall be so folded as not to show any part of the name written or printed on it."

I state, and allege, in the counties above named the ballots voted for you had the “distinguishing mark". Hon." before John M. Burns, while others had "Hon. John M. Burns," and other distinguishing marks, and all of which ballots were counted for you, in violation of the eighth section of said act of the Kentucky legislature.

6th. 1 charge that all the votes cast for you in the county of Martin were not deposited in ballot-boxes with locks and keys to them, as provided by said act of the Kentucky legisla

ture.

7th. I charge fraud upon your part and upon the part of your friends in circulating the report in the county of Martin that I was no candidate, losing to me by said report more than one hundred votes.

For these reasons I deny your pretended right to a seat in the Forty-third Congress of the United States from the tenth congressional district of Kentucky.

Respectfully,

OWINGSVILLE, KY., January 6, 1873.

JOHN D. YOUNG.

This was the first election held under the statute of Kentucky requir ing elections for Representatives in Congress to be by ballot, as directed by the act of Congress approved February 28, 1871.

The directing provisions of the act of the Kentucky legislature are very elaborate, and were not in every instance strictly complied with by officers who conducted the election. Many irregularities occurred in precincts in which contestee received majorities, and exactly similar irregularities cccurred in precincts which gave majorities for contestant.

And, if proof of mere irregularities is sufficient to vitiate the vote in these precincts and these only counted where there was strict conformity to the Kentucky statute, the majority of the contestee would be increased. In some instances the county boards, in compliance with a provision of the statute which directs that the ballots shall have on them the name of the person voted for, and no other distinguishing mark, threw out ballots cast for contestant because the word "Hon." was prefixed to his name on them. The committee are of opinion that the ballots thrown out for this reason ought to have been counted for contestant. In the county of Bracken there were thrown out because of the prefix "Hon." 36 ballots for contestants. In the county of Mason, according to the certificates of the precinct officers, Young received 1,663, Burns 1,347. The county board certify for Burns 1,338 votes, or 9 votes less than the precinct certificates aggregate. These 9 votes the committee believe ought to be counted for Burns for the reason that the county board refused to allow any person except the members of the board to be present when the ballots were counted. Witness Hutchens swears that he asked permission to remain in the room while the board were counting the votes, and was refused by a member of the board.

The said witness, Hutchens, testifies that the members of said board are men of integrity and veracity; nevertheless the committee consider the practice reprehensible and dangerous, and believe that contestant Burns ought to have corrected for him all the votes certified by the precinct officers, viz, 1,367; which would give Burns as follows:

Vote certified by State board.....
Ballots thrown out as stated above..

8,885

36

Difference between votes certified by district precincts and county boards in Mason
County.....

9

Which makes contestant's vote......

8,930

In Bracken County three ballots given for contestee Young were thrown out because the prefix "Hon." was on them....

3

1

9,073

Thrown out in Fleming County for the same reason..
Vote for contestee certified by State board...

Total vote for contestee.....

9,077

There is no allegation or proof of fraud in the manner of conducting the election in other counties or precincts.

The counties of Lewis, Greenup, Boyd, Carter, Johnson, Martin, and Rowan, gave majorities for contestant, and contestant received majorities in various precincts in the counties which gave majorities for contestee, and the committee find that in these counties and precincts the same irregularities were committed as in the precincts and counties which gave majorities for contestee.

In conclusion, the committee are of opinion that, concerning the precincts wherein the irregularities were of so grave and important a nature as to affect the validity of the returns, the secondary proof of the actual votes cast shows a result not differing from that shown by the returns. In other precincts, the irregularities complained of on both sides, though to be reprehended, are not of a nature to necessarily affect the validity of the returns.

The committee recommend the adoption of the following resolution : Resolved, That John D. Young, the sitting member, was duly elected a Representative in the Forty-third Congress from the tenth congressional district of Kentucky, and is entitled to his seat.

1st Session.

No. 386.

JAMES A. DREW AND OTHERS.

APRIL 7, 1874.-Committed to a Committee of the Whole House and ordered to be

printed.

Mr. DUNNELL, from the Committee on Claims, submitted the following

REPORT:

[To accompany H. R. 2873.]

The Committee on Claims, to whom was referred the petition of James A. Drew and others, for compensation for land taken from them and ceded to Great Britain by the treaty of Washington, of 1842, have had the same under consideration, and beg leave to report:

That in the treaty between the United States and Great Britain of November 30, 1782, it was agreed that the United States should be bounded * "east by the line to be drawn along the middle of the Saint Croix River, from its mouth, in the Bay of Fundy, to its source, and from its source directly north to the aforesaid highlands, which divide the rivers that fall into the Atlantic Ocean from those which fall into the river Saint Lawrence."

Article II of the treaty of peace of September 3, 1783, re-establishes this boundary in exactly the same words.

The commissioners appointed under the provisions of the treaty of November 19, 1794, determined the source of the Saint Croix, and the two governments erected a monument to mark the spot.

In accordance with the provisions of all of these treaties, making the boundary a due north line from the head-waters of the Saint Croix, &c., Massachusetts caused a due north line to be run from the monument to the Saint John River, in 1804, and many of the grants of lands to institutions of learning and to meritorious soldiers of the Revolutionary War and their widows were located along this line.

This line corresponds very nearly with the line run in 1840 by Major Graham, of the United States topographical engineers, and which is, without doubt, the true line of the treaty of 1783.

During all the contention on the question of the northwestern boundary under the treaties of 1814 to 1817 and until after the rejection of the proposition of the King of the Netherlands for a compromise line to be agreed upon, no other line than the due north line from the monument was ever suggested, but only how far north shall it extendwhat shall be its termination?

The Secretary of State, in a letter of July 21, 1832, addressed to the British minister respecting the disputed territory, suggested "that until this matter be brought to a final conclusion, the necessity of refraining on both sides from any exercise of jurisdiction, beyond the boundaries now actually possessed must be apparent," which proposition was concurred in by the British government, and so stated in a letter from the British minister, dated April 14, 1833.

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