Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1872-02-28

The report of the committee on
Privileges and Elections being consid-
Grafton, Mr.. Hart said
Mr.. President The subject now
under consideration is of such grave
importance, not only as regards the
parties entering into this contest, but
also as regards the right of the veter-
an soldiers 10 the military asylum.
and the principles Of law involved,
that feel at liberty to trespsss for a
time upon the attention of the Senate.
And first, il is well 10 state the facts
cut of which this controversy has
arisen. On the 10th day of October
last there was q general election in
Ohio for State and county officers and
for members of the General Assem-
bly. At that election James Sayler,
the contestant, and DIR. John ID.
Kemp, the sitting member, were
candidates for the Office of State Sen
ator from the Third district, composed
of the counties of Montgomery and
Pneble. According to the returns
made by the judges Of election in the
several election precincts in the dis
trict, Mr.. Sayler received 1886 votes,
while DIR. Kemp received S153 votes,
giving him a majority in the districr
of one hundred and sixty-seven. In
the township of Jefferson, in Mont
gomery county, there is located a Mi
Iitary Asylum, commonly called
Soldier Home. Three hundred and
sixty-elght of. the inmates of this
Home went to the polls on election
day and offered their votes, which
were rejected by the judges of election
ThereupOn q baliot-bOX not in use
was obtained, tgo young men were
chosen as clerks to keep register of
the votes, and each vote of the veter-
an soldiers, as soon as rejected, was
handed over to these clerks, upon it
the name of the voter aud their own
names were written and it was then
deposited in the second ballot box and
the name of the soldier voting it TAX
en- down. In this manner a record
was kept of the entire proceedings.
This furnished an accurate means of
determining the number and charac-
ter OF the votes which were rejected.
No other irregularities are com planned
OF by either party. OF the one. hun
dred and sixty-eight rejected votes,
three hundred and fifty were cast for
the Republican State, district aid
county ticket, including Sayler's
name; two for the Republican State
ticket only; and sixteen for the entire
Democratic State, district and county
ticket, including Kemp's name. So
that If these votes had been received
and counted by the judges of election,
1.a- nor q -
and the certificate of election should
have been given to him.
Before entering upon the discussion
of the question OF the right of these
TO vote, there is one other
matter which needs a moments con
sideratiOn. Suppose the votes of these
veteran soldiers improperly rejected
is the effect of rejection simply TO
unseat DR.. Kemp aad throw the cleo
ii IN back to the people. or can these
rejected votes be counted. the same as
if actually cast, and thus give q ma
iority 20 the contestant and he be per
mitted to take mis- seat at once with
out another election 2
From an examination of the author
tiles and precedents upon this subject,
/ am satisfied that in case of a contest.
votes which are Improperly rejected
bv the Judges, should be counted the
same as If actually deposited in the
ballot-bOx. In Congress and else
where this has been almost the uni-
form practice. The authorities seem !
TO have gone uDon the well known
maxim in equity that what ought to
be done is done. and that in all cases
the will of the people when clearly
ascertained, shall not be Inverted by
the mistakes, errors or wrongs of the
boards.
In a contest in Congress between
Turner aud Bales, IN 1909, il was held
that "a candidate is entitled to the
benefit of all the ballots which were
intended for him. I
In the case Of fWilioughby V. Smith,
in Congress, in 1915. it was held that
"the errors and omissions of inspec-
siantial justice to the parties
7 In the case of Mallery V. Merrill. in
1918, it was held that when the law
requires returns to be sealed up. and
they are returned unsealed, they shall
5e counted nevertheless, and votes
fairly given to party may ne counted
in his favor though they have never
been returned to the State officers"
Coming to a later period, we find
cases exactly parallel with the one
under consideration. In the celebrated
contest between C. l.. Vallandigham
and Lewis d. Campbell for a seat in
Congress, in 1858, three votes at one
precinct, which had been Improperly
rejected, was counted for Campbell.
The same rule was adopted in the
contest between Columbus Delano and
George w. Morgan in 1868, in Con- |
gress. There ten votes for DelanO !
which had been rendered and wrong
fully rejected, were counted for him,
while in another township three votes !
for Morgan wrOngfully rejected were |
tor him.
In gery instance, where the eases !
have come before Congress for deci- /
sion. votes improperly rejected by |
judges have been allowed and counted, /
the same as If actually cast Into the
ballOt-bOx. r-.-s -..r I
The same rule has also prevailed in
the General Assembly of Ohio. In /
1864, there was q contest between 4
Carlin and Gribben, for a seat in the 1
House of Represenl latives. In that
case the committee on Privileges and
Elections adopted the Congressional
rule and counted the ballots which
were Vrongfuliy rejected-and their
report was approved by large vote
Other instances might be given but