Harris Grove, therefore, was not

the southern boundary of the county. within the country attached to Dallas for election purposes, but was attached to Mahaska, a county in the next range south; and in Mahaska only could the persons referred to by Oaks and Greene vote.

Why they attempted to vote in Dallas, it is not very material to inquire. It is worthy of observation that they went from the vicinity of Kanesville, and, therefore, must have known either that that place was not west of Monroe, or that their places of residence were not west of Dallas. But how many of these votes should be discarded? More than fifty went in the company. Only forty-two, however, have been recognized by Reuben Oaks, Hiram Oaks, and E. M. Greene. These, it is agreed by the contestant, with the exception of four, voted for him, (page 92.) It follows that he received at least thirtyeight illegal votes; and we are of opinion that that number should be deducted from the number returned as having voted for him.

Your committee have thus presented all the questions the consideration of which is necessary to the adjudication of the case. Much testimony has been introduced by both the parties which, in our estimation, has no relevancy to the actual merits of the controversy. The conduct of the friends of the parties, or even of the parties themselves-the facts that electors acted under an honest though mistaken impression as to their rights; that the commissioners of Monroe were the political friends of one of the litigants; that the canvass was conducted by the friends of the candidates as if the election at Kanesville was regular and legal; or even that a majority of the legal voters resident within the district, in some mode and at some place, expressed their preference for one of the candidates-are matters entirely foreign from a legitimate consideration of the question, Who is entitled to the seat? The House, in judging of elections, has no discretion to exercise. It acts in a judicial character; and the only thing to be adjudicated is this: Who has received a majority of the votes of the electors in the district, polled at the time, in the manner, and at the places prescribed by law?

Upon reviewing the conclusion thus submitted, the correct statement of the votes received by the sitting member and the contestant is as follows:

It is apparent, therefore, that, even if the vote at Kanesville be received and counted, the result remains unchanged. The Kanesville vote was: 493 for Daniel F. Miller, and 30 for William Thompson. If this vote be added to the

aggregate above stated, it stands :

In every aspect, therefore, in which the case can be justly considered, your committee are of opinion that William Thompson received a majority of the votes which were legally polled, and was duly elected a representative to the thirty-first Congress from the first congressional district of Iowa.

They submit the following resolution:

Resolved, That William Thompson is entitled to the seat in this house which he now holds as the representative from the first congressional district of Iowa.

Mr. VAN DYKE, from the minority of the Committee of Elections, made the following report:

That the whole number of votes which were counted by the congressional canvassers for the State of Iowa for the said contestant and for the said sitting member, in the said first congressional district, was 12,568, of which number the contestant had 6,091, and the said sitting member 6,477-giving to the said sitting member a majority of 386.

It appears, however, by the statements and admissions of the parties, and the evidence taken in the case, that the votes cast in a number of the election precincts in said district were not counted by the election officers, and did not in any way contribute to the result above stated. It further satisfactorily appears by the evidence, that, of all the votes cast in the said district by persons residing therein at the time, and who, for aught that appears, had an undoubted right to vote in the said district, the contestant has a majority of 59. It is insisted by the contestant that the sitting member received and had counted for him certain votes given by persons not then residing in the said first district, and who had no right to vote therein; and that a large number of legal votes were cast within the said district for the said contestant which were not in any way counted for him in the said district by the said congressional canvassers, although they were counted and allowed by the officers holding the elections. On the other hand, it is insisted by the sitting member that the said contestant had counted and allowed to him, in the said first district, a number of votes which were illegally cast, and which, for that reason, should have been rejected by the said canvassers; and also that a number of lawful votes were cast for the said sitting member, in the said first district, which should have been counted

and allowed to him, but which were rejected and not counted by the said can

vassers.

The only questions of difficulty which present themselves are the proper admission or rejection of the votes thus placed in controversy and dispute; and although the committee has not been unanimous on many of the points presented for its consideration and decision, yet on each of the points thus presented there has been such a decision by a majority of the committee as to give to the contestant the seat which he claims.

In the first place, the contestant insists that seven votes which were cast for Daniel F. Miller in Pleasant Grove township, in the county of Marion, omitting the middle letter in the name of the contestant, and which were not counted by the said canvassers, should be counted and allowed to him. If these votes were really cast for the contestant, and the omission of the middle letter arose from a want of knowledge of the use of such letter on the part of the voters, it would be extremely technical and harsh to disallow such votes; but it appears by the admission of the sitting member, through his counsel, that the only candidates nominated for representative were Daniel F. Miller-sometimes called Dan Miller or Daniel Miller-William Thompson and Mr. Howe. The committee, therefore, are satisfied that the said seven votes were honestly intended for the contestant, and allow them accordingly-increasing the number of votes to be counted for the contestant to 6,098. These votes were allowed him by the officers holding the election, but not by the canvassers.

It is insisted, secondly, by the contestant, that the votes given at Kanesville, an election precinct near the Missouri river, established as such by the board of commissioners of the county of Monroe, and supposed to be attached to that county for election purposes, and which votes, although allowed by the officers holding the election there, were illegally suppressed and never allowed to reach the said congressional canvassers, should now be counted and adjudged to be a part of the legal vote of the said first congressional district. The whole number of votes cast at the Kanesville precinct was 523; of this number 493 were cast for the contestant, and 30 for the sitting member. This is a question of much importance. It is not a matter of a few illegal votes, but it is one of the admission or destruction of the vote of an entire township or precinct, and that one of the largest in the State. It is fully established, as well as admitted, that the persons voting at this precinct had a perfect right to vote in the first congressional district, and to vote for either the contestant or the sitting mem

It is not pretended that any fraud, injustice, or unfairness was practiced by either the voters or the election officers towards any one, but everything seems to have been done honestly, fairly, and in good faith, and that the persons voting were legal voters in the district; while the whole proceedings touching the election were assented to and participated in by all men and all parties there, and were objected to by none. And in view of these facts, and in view of the great principle in our institutions which seeks to afford to all the citizens of the Union the right of suffrage, the committee believe that the reasons for wholly setting aside the election in this precinct should be exceedingly strong. These reasons are strictly and purely technical in their nature; and, although they are entitled to a proper consideration, yet they ought not, in the opinion of the committee, in the absence of all improper conduct, to be allowed to destroy the votes of so large a portion of the citizens of Iowa, whose right to vote in the first district, and for either of the two candidates, is, since the taking of the testimony, unquestioned.

The State of Iowa lies between the Mississippi and Missouri rivers. The counties in the eastern part of the State were first organized, and, as the organization of counties proceeded, there always remained unorganized country lying westward of them of from one hundred to two hundred miles in extent. By a number of acts of the legislature of the Territory, as well as of the State of Iowa, H. Mis. Doc. 57-9

all the country lying west of certain organized counties was attached to such counties, for election, revenue, and judicial purposes;" and the inhabitants of such attached country were "entitled to enjoy all the rights and privileges of the counties to which they were attached that they would be entitled to were they citizens proper of some organized county." And in accordance with this practice, the legislature of Iowa, on the 11th day of June, 1845, passed an act organizing the county of Kishkekosh, and attached to it the territory west of said county, "for election, revenue, and judicial purposes." On the 19th day of June, 1846, the legislature of said State, by an act for that purpose, changed the name of this county from Kishkekosh to Monroe.

By an act of the legislature of Iowa approved February 15, 1843, a board of county commissioners was required to be organized in each of the counties "for transacting county business." This board was made a body" corporate and politic" by the act. And by another act of February 17, 1842, "for the organization of townships," these boards are authorized to "divide counties into townships," "and appoint the place where the first meeting of the electors shall be holden." But by another act of the legislature, entitled "An act providing fr and regulating general elections," which went into operation July 1, 1843, these boards of county commissioners are required, "at their regular sessions in July preceding the general election, where the counties are not organized into townships, to appoint three capable and discreet persons to act as judges of the election at any election precinct." And under this authority these boards of commissioners have always been in the practice and habit, in the unorganized country, of appointing not only the judges of election, but of fixing also the precinct or place where the election should be held wherever they supposed the convenience of voters required it. And accordingly we find by the evidence that, at the term of July of these boards of commissioners immediately preceding the general election in 1848, a number of election precincts in unorganized territory were created, and a number of townships in organized territory were organized, and judges of election appointed for them all, respectively.

Among the number of election precincts created at the said July term of the said boards of commissioners was the one at Kanesville, which was established, and the judges of election appointed, by the board of commissioners of the county of Monroe. Kanesville was some 125 miles from the western limit of Monroe proper, and was in a wild and unsurveyed country; but every body, it seems, both in Monroe county proper and at Kanesville, and elsewhere, supposed and believed that it was within the country attached to the county of Monroe for election, revenue, and judicial purposes. There had not at that time been any lines run fixing the boundaries of counties in that part of the country, and no one could possibly tell the precise place of such boundaries.

It turns out, however, by surveys made since the election of 1848, that Kanesville lies some five or six miles north of the northerly line of Monroe county, as run due west from the northwest corner thereof; and the question is, whether this fact should be permitted to annul the whole election, when all the persons voting had a perfect right to vote for either of the two candidates on one side or the other of the line. If it were a question of conflicting jurisdiction between two adjacent counties, it might be entitled to more weight; but no such question arises here. Nor can the sitting member complain that this mode of voting does him any injustice; for if these votes had been cast on different sides of the line, as he insists they should have been, they would with still more certainty have defeated his election, if that election depends upon these votes.

But, although there was at the time no governmental line run between the county of Monroe and the county lying north of it, yet there was an understood line, a claimed line, an admitted line. That line ran north of Kanesville, and according to that line the authorities of Monroe claimed and exercised jurisdic

tion over Kanesville as a part of that county. This jurisdiction was assented to by the people of Kanesville, and has never been resisted by the county of Marion, in which Kanesville is now alleged to be situated; and, although it is now said by persons who have recently run a line, that a course due west from the north line of Monroe will place Kanesville north of that line, yet there has never, up to this time, been any such settlement or adjudication of the question as to this line as to overturn or shake the jurisdiction which Monroe county exercised over Kanesville. It is a well-known historical and judicial fact, that, as between the State of Iowa and the State of Missouri, the latter claimed and exercised jurisdiction for a long time over territory to which she had in fact no legal right, and which, in truth, formed a part of Iowa. Yet the State of Missouri, like the county of Monroe, assumed that the line between her and Iowa ran north of certain inhabitants there residing, and accordingly extended her laws over them, and brought them within her jurisdiction for all purposes. This claim was resisted by Iowa; and, upon an after investigation of the facts and law of the case before the Supreme Court of the United States, it was decided by that tribunal that the line did not run where Missouri claimed it to be, but

miles south of it; and such decision must also have determined that Missouri never had any legal right to exercise jurisdiction over the disputed territory or its inhabitants, at the time she exercised it. But does this decision and determination of the Supreme Court necessarily annul and destroy all the acts of jurisdiction which the State of Missouri exercised over the territory while she adversely held it in actual possession? Are all the taxes she collected of those people now to be returned to them? Has every punishment of an offender now become a crime against the public functionaries who inflicted it? Is the service of every process by a sheriff or constable now become a trespass on the part of such officer, and the service good for nothing? Certainly not. The jurisdiction of Missouri over the part in dispute is at an end; but the legislative, judicial, and executive acts which she exercised over it while in her custody, so far as all citizens are concerned, are as valid as any other of her acts. So with the county of Monroe. She assumes that the line between her and Marion runs north of Kanesville, and extends her jurisdiction accordingly over the people, and enforces her laws among them. This assumption is unresisted; and, admitting it to be altogether wrong in law and in fact, yet, if it is continued, and never determined to be otherwise, can it be contended with truth that all such exercise of jurisdiction is absolutely void-and that, too, when the question is raised, not directly, but in a collateral way, and before the most equitable and least technical of all tribunals, the House of Representatives? The committee think not.

Nor do the committee see that either the contestant or any of his friends can be charged with any unfairuess in this matter. The entire board of commissioners of the county of Monroe were the political friends of the sitting member. A majority of the election officers at Kanesville were also his political friends. A number of other influential friends of his went a long distance to Kanesville prior to the election on an electioneering campaign in his behalf; while the actual sheriff of Monroe county, a political friend of his, did the same thing, and was at Kanesville and voted there on the day of election. The contestant, it seems, had political friends at Kanesville; but it does not appear that either he or any of his friends from a distance ever visited Kanesville at or before the election for political purposes. No question was raised at any time by any one against the correctness of the proceeding, until after the election. The balloting seems to have been conducted, and the poll-book kept, with more than usual care and regularity.

The poll-book in this case was duly made up and delivered by the proper officer to the clerk of the board of commissioners of the county of Monroe, as the law requires, whose duty it was to receive it, and at the proper time, with