Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1897-01-21

of the legal votes is, by the report OF
the majority of this committee, TO De
deprived OF his seat, and the gentle
man who received the minority is to be
seated. and it is submitted that this
honorable body cannot AFFORD TO, ana
will not approve Of such action.
Again. no evidence was taken IN the
case The alterations of the notice are
entirely unproven. and the law is clear
that the seat of q member Of the Leg
islative body cannot be taken from
him bv default. even if he neglects
himself to prepare his defense; but the
Deople are more interested in who shall
hold such an Office than the candidates,
and the allegations Of the notice when
attack the person holding the certlil-
cate must be proven by competent tes-
timOny.
We submit that Mr.. Shaffer, having
the certificate of the election, is prima
facie entitled to this seat. He has al
ready been seated by this body. He
cannot be unseated without evidence
to show that he is not entitled to his
seat. The burden of proof is upon the
contestant.
This will fully appear from the fol-
lowing quotation. from McCrary on
Elections, page 26S, section All: IN
the case of Follett V. Delano, 1t was
held that the rule that a failure to an
swer is a confession of the allegations
contained in the complaint, will not
be entitled to contested election in
the House Of Representatives. The
reason is, that the inquiry is OF a pub
lie nature. and not a case involving
private rights alone. Upon this point
the committee in the report say:
THE contestant claimed that the
sitting member. by falling to answer,
must be taken to confess the truth of
the allegations in the notice. The stat
ute requires of the sitting member,
within thirty days after the service, to
answer such notice, admitting or deny
ing the facts alleged therein, and stat
ing specifically any other grounds up
on which he rests the validity OF his
election
If the contestant and the sitting
member were the only parties interest
ed in the representation of this district,
il might not be unfair to hold that the
sitting member upon service of notice
upon him according to law, must an
swer as the law requires, or by neglect
or refusal. be taken as confessing the
truth of the allegations made in con-
formity to law against his right to his
seat. and abide the judgment OF the
House upon such confession. But the
contestant and the sitting member are
by no means the only parties interested
in this representation. The electors OF
the district, each and every one OF
them. have a vital interest in that
question. and no one of them can be
precluded. by any laches not his own,
from insisting that the choice OF the
majority shall be regarded. No con-
fession of the sitting member, how
ever it might bind him personally, can
place the contestant in the seat, unless
he is the choice of the majority, nor
deprive that majority of its rightful
representation. The sitting member
may well be deprived, by his neglect to
answer. of reliance upon any other
grounds upon which he rests the va
lidity of his election" for he has never
given notice of any such grounds; but
the committee are of opinion that
the House should require proof that the
sitting member has not, and that the
contestant has, a majority of the legal
votes. before unseating the one and
admitting the other, however the sit
ting member may have seen fit to con-
duct his own case in a contest.
1t is respectfully submitted, there
fore. that the contestant has not proven
his case. and that even if he had proven
every allegation contained in his notice,
there is no legal ground on which to
base his contest and that to give him
this seat would violate every principle
upon which election contests are found
ed.