Minnesota weekly times. [volume] (St. Paul, Minn.) 1854-1859, 1856-01-12
REPORT
In the m alter Of Warren J. HotceA, contesting
the seat Of Benjamin F. ISAotsO7, in the C0un-
Gil Of the Legislature Of Minnesota. January
g. 1856.

Gil Of The Legislature Of Minnesota. January
Your committee respectfully report that they
have heard the proof of Warren j. Howell, ESQ.,,
who contests the seat of Benjamin F. Tillots0n in
the Council of the Legislature of the Territory of
Minnesota, and have maturely deliberated upon
such proof. ~ .-tft
That said proofs consist: lst., of a certificate
of the clerk Of the Board Of County Commission
srs of fillmore County, that the returns made to
him of the election for Councillor of the District
embracing said county, were as follows: That
in the Chatfeld precinct, w. j. Howell, received
twenty-six votes, and Benjamin F. Tillotson re-
eeived thirty-6ve votes; That in the Carimona
precinct, Warren j. Howell fifty five votes, and
Benjamin r. Tilotson received thirty votes;
That in the Richland precinct, Warren j. Howell
received forty-two votes, and Benjamin F. Til
lotson received sixtv-one votes; That in the
Rushford precinct, Warren j. Howell received
votes, and Benjamin F. Tillotson twenty-one
votes: That in the Forestville precinct, W.. j.
Ho ell received five votes, and Benjamin F. Til
lOtSon received thirteen votes; That in the pre-
cinct of Elk Horn, VIM. j. Howell received thir-
ty-fve votes, and Benjamin F. Tillotson received
FIVE votes; making the whole number Of votes
cast for BenjaminF F. Tillotson, l65.
Your committee have some doubts whether the
votes cast in the precincts of Chat6e.d and For
rcstville for W. j. Howell, were intended for War
rem j. Howell, from the fact that votes were re-
turned from the precinct of Elk Horn for William
j. Howell, but your committee have agreed from
other proof in the case, to award to Warren j.
Howell the votes SO cast making for Warren j.
Howell one hundred and thirty five votes.
I'd. An affidavit purporting to be of the Judges
of election of Elk Horn precinct, in Fillmore coun
ty, dated Dec. 2l, 1855, stating that there was
mistake made by the clerks of the election of said
precinct in returning votes cast for Warren j.
win nSt for Wp, I Hawaii
Sd. An affidavit purporting to be made by John
Mower, one of the clerks of the election for Elk
Horn precinct, that mistake was made BY the
clerks in returning the votes cast in said precinct
for Warren j. Howell as having been cast for
VIM. J. Howell, dated Dec. q, 1855.
4th. A certificate of H. S. H. Hays, a Justice
of the Peace of Fillmore county, that the above
sworn in by him. This certificate has no date.
Affixed to this certificate is certificate of one of
the Judges of Election in Elk Horn precinct, call
ing himself President Of the Board of elections in
said precinct to the effect, that the Clerks of Elec
ton had made mistake in returning the votes cast
for Warren j. Howell as having been cast for
VIM. j. Howell, which last mentioned certificate
is attested by the clerk who made the affidavit of
mistake above referred to. This certificate is da-
ted Nov. 8, 1855.
In the above certificate, it appeared in evidence,
were enclosed thirty-nine ballots, purporting to
be the original ballots cast in the Elk Horn pre-
cnct which said ballots were then offered in ev-
idence.
In relation to the above mentioned ballots, your
committee would state, that nothing appeared in
evidence concerning the custody of these ballots
from the day of election until the Sth day of Nov.
when it appears they were delivered to Mr.. War
rem J. Howell, the contestant in this case, who
took them to the Register of Deeds of Fillmore
county, and requested him to alter the returns Of
Elk Horn precinct in relation to the name of VIM.
j. Howell that said Register refused 80 to do,
but gave said ballots back to said Howell, who
has kept the same in the drawer of bureau in
his house from that time until they were presented
to your committee, part of the time under lock
and part of the time without lock, and at all times
accessible to members of his family.
1t also appears from the evidence that there was
another gentleman residing in the Fix Horn pre-
cnct before the election, By the name of Howell,
but the witness could not state that his name
VIM. j. Howell, or that he resided in said precinct
at the time Of the election in question.
Your committee therefore state that upon the
above testimony they have arrived at the follow
ing conclusions.
lst. That on the day of said election, the
Judges and Clerks of the election IN the Elk Horn
precinct, in the county of Fillmore, publicly, and
under the soe,nnity Of th:ir oaths, canvassed the
votes of the said precinct and made out ccrtifi-
cate of the same according, to the provisions of
the statutes concerning elections, that they then
and there certified from an examination of the
ballots cast ut said precinct, that VIM. j. Howell
had received thirty-6v votes for the Office of
councillor, and Benjamin. F. Tillotson had receiv-
ed FIVE votes for the same Office, and made return
of said facts to the Register of Deeds of Fill
more county, according to law.
%. Your committee decide that the evidence of
u mistake having been made by the clerks in re-
turning the votes for VIM. j. Howell in the Elk
Horn precinct, is subject to SO many objections in
substance, that they are unwilling to accord to it
sufficient weight to contradict a record made un-
der the circumstances which accompany the one
in question. That among the objections which
your committee find to the evidence to establish
said mistake, are the following: That the policy
of the law is to furnish record of the proceed
ings of all elections, made at the time of the can
vassng of the votes by the Judges, in the presence
of all parties interested, or in other words, pub
licly, and under the solemnity of official oath.
That in the present case such was done, and par
ticipatcd in by all the Judges and Clerks of the
election in the precinct in question, and properly
certified by them; that sach record was duly re-
turned to the proper officer and by him filed, and
that the only evidence to contradict such record is
tho affidavit of said Judges and one Of the
Clerks; That the CLERKS of the election made {.
mistake in the name of Warren J. Howell and
returned the same as VIM. j. Howell, attempted
W OS SOtIO"OEdScO W tue pIoucCttou VI tulEty-
nine printed ballots, which are certified to be the
ballots which were cast at the election in Elk
Horn precinct, and which appear to have been
cast for Warren j. Howell, twenty y-eght, w. j.
Howell, six, and Benjamin F. Tillotson, FIVE,
which neither correspond with the return of the
said Board of Election, nor with their af6davits
subsequently made to contradict the same, in
form or number, which discrepancies, your COM
mittee are wholly unable to account for on the
theory of their being the identical ballots cast at
said precinct.
Your committee would further state, that the
silence of one of the Clerks on the question of the
mistake is not accounted for to the satisfaction of
your committee, and that from the fact of the
proof being almost entirely er pdrte in its nature
taken in connection with the ballots above refer
red to, having been placed in the possession, and
kept under the control of one of the parties in in
terest, and now appearing SO widely different from
the af6davits and returns given in evidence, your
committee feel unwilling, from motives of Justice
to Mr.. Benjamin r. Tillotson, and of public poll
cy, to allow the claims Of the contestant, and re.
port the following Resolution:
Resolved, That Benjamin T. Tillotson is epti-
tied to the seat that he occupies in the Coun.
Gil Of the Territory of Minnesota.
All Of which 10 respectfully submitted,
II. N. SETTER. Chairman
CHARLES z. E.FLANDRAU.
a. Banks did not get single vote South Of
Mason and Dixson's line. Some few Southern
ere voted for Fuller. Humphrey Marshall threw