tee could have arrived at any other conclusion. In that case it was clearly proven that the three voters (Norris, Deeves and Peck) had neglected to have their names placed upon the registry list, at any rate, that they had not exercised the proper care and vigilance to see whether their names were properly on said list; and there was nothing before that committee to decide upon, than the simple construction of the sixth section of the registry law of 1865, and that section declared in plain and unmistakeable terms, that no vote shall be received at any annual election in this State, unless the name of the person offering to vote be on the registry, made and completed according to said law; the subscriber does not see how it could have been claimed that those three votes should have been counted in favor of the contestant in that case. There was no charge in that case nor any attempt to prove that the inspectors had intentionally violated their duty.

In this case the facts are quite different. Both Jackson and Le Qui, both of whom are conceded to be legal voters, entitled to be registered, went before the board of registry and requested to have their names placed on the register. The inspectors, in violation of their plain duty, instead of placing the names of said voters on the register, compelled them to go and obtain a certificate from the inspectors of the district where they had resided and had voted the year previous, before they would place their names on the register. Moreover, in the case of Jackson, it was proved that he actually brought back to the inspectors the required certificate the day before election, and yet, when he came the next day to vote, his name was not found on the registry.

And the question to me, in view of these facts, which are undisputed, is not as presented by the majority report, "What is the proper construction of the sixth section of the law of 1865?" But it is this: When a voter has done all the law requires him to do, for the purpose of having his name placed on the register (aye, even more, as in the case of Jackson), and the inspectors of election refuse to do their duty, and intentionally omit his name from the register, what is the proper remedy? Shall the sixth section of the law of 1865 be made a means, in the hands of unscrupulous inspectors, to exclude legal voters from the exercise of their right of suffrage?

The majority of the committee, in their report, say that in such a case the inspectors are no doubt liable to the persons injured; but that is not the question at all. The question is, shall it be in the power of the inspectors (even if they are willing to incur personal responsibility), to defeat the will of the majority of the voters?

It will be observed that there is no provision in the law of 1865 by which the inspectors of election, if they refuse to place the name of a voter on the register, can be compelled in a summary manner to do their duty.

Now, supposing the inspectors of some district should conspire to defeat the will of the majority of the legal voters, and should strike the names of one hundred voters, opposed to them in politics, from the list, or omit or refuse to place upon the register the names of one hundred legal voters, whose legal right it is to be placed on the register, and those one hundred voters should be excluded from voting on the day of election, would any sane man say that all the remedy the people had in such a case, would be to sue and prosecute those inspectors, but that under section six of the law of 1865 the names of those one hundred voters, not being on the register, their votes were properly excluded, and the election should be held to be valid ?

Would not, on the contrary, every candid person say that the spirit of that law had been grossly violated, that it had been used as a cloak to cover an act of infamy, and would not any legislative committee or judicial tribunal, having the power, set aside such an election and order a new election?

Yet, what is true of an hundred votes must be true of two votes. If it can be proved to the satisfaction of your honorable body that two names were improperly and in violation of law omitted from the registry list, that two legal voters were intentionally deprived by the inspectors of their right of suffrage, and that those two votes affect the result of election, is it not your duty to order a new election for the purpose of ascertaining the wish and intent of those two voters?

This is doing no violence to the law of 1865. It is not affecting its constitutionality; it is not even questioning it.

It is, on the contrary, warning the inspectors to enforce and administer it in a proper spirit, and not to abuse the powers intrusted to them by its provisions.

If it were otherwise, if the sixth section of the law of 1865 could be so construed as to absolutely exclude-even upon a legislative or judicial scrutiny-the votes offered by legal voters who did all in their power to become registered, and who were intentionally refused by the inspectors to have their names placed on the register, on no other ground than that their names do not appear on such register, I would indeed be constrained to hold the law of 1865 unconstitutional, because it would furnish the means to unscrupulous men to disfranchise a citizen and deprive him of his constitutional right of suffrage, not by the law of the land or the judgment of his peers, but by the simple arbitrary power of three inspectors of election.

In conformity with these views, the subscriber holds (and in that respect he agrees with the majority of the committee), that under the sixth section of the law referred to, it was technically proper to exclude the vote offered by Le Qui, and it would have been equally proper to exclude the vote of Jackson; but under the evidence as elicited, as those two votes would have affected the result of the election, the subscriber would have been constrained to hold that election void, and recommend a new election.

Happily, in the present case, we are saved the unpleasant necessity of ordering a new election.

In the case of Le Qui, the ballot cast by him was received and registered by one of the inspectors, and by him brought before the committee; and in the case of Jackson it was actually received and canvassed by the inspectors, and as a new election would only tend to ascertain the will of the electors, and as we have the evidences of that will before us, such election is unnecessary.

As both of those electors are proved beyond any doubt to have voted for Joseph M. Murphy, the subscriber has come to the conclusion to allow both votes to and to count them in favor of Joseph M. Murphy. And as in all other matters he agrees with the majority of the committee, as expressed in their report, he simply adds those votes to the aggregate vote of said Murphy, found in said majority report.

Making the number (instead of 2,341). . . . . . . . .
Crawford's vote by said report.

...................

2,343 2,342

1

And therefore find a majority in favor of Murphy of....

The undersigned, therefore, recommends the adoption of the following resolution:

Resolved, That Joseph M. Murphy has been duly elected a member of this body as member of Assembly from the fourth Assembly district of the county of Albany; that he is entitled to the seat therein now possessed by James F. Crawford, and that the said Joseph M. Murphy be placed in possession thereof.

All of which is respectfully submitted.

Dated March 15, 1866.

ADOLPH LEVINGER.

Assembly Documents, 1866, vol. 7, No. 167, pages 1, 2, 3 and 4. See Documents, 1866, vol. 4, No. 66.

Mr. Levinger moved that said reports be made a special order for Wednesday, March 28th, at 12 o'clock, noon.

Mr. Speaker put the question whether the House would agree to said motion, and it was determined in the negative, two-thirds of all the members present not voting in favor thereof.

Mr. Speaker then put the question on the adoption of the minority report, and it was determined in the negative.

Ayes, 14. Noes, 82.

REPORT OF MAJORITY ADOPTED. - SEAT AWARDED TO JAMES F. CRAWFORD.

Mr. Speaker then put the question on the adoption of the majority report, and it was determined in the affirmative.

Assembly Journal, 1866, vol. 1, pages 873, 874.

Case of Smith M. Weed and Andrew Williams. CLINTON COUNTY. - PETITION OF ANDREW WILLIAMS PRESENTED. ASSEMBLY CHAMBER, January 3d, 1866.

Mr. Richardson presented the petition of Andrew Williams for the seat in the Assembly occupied by Hon. Smith M. Weed, which was read and referred to the committee on privileges and elections. Assembly Journal, 1866, vol. 1, page 30.

REPORT OF COMMITTEE AWARDING SEAT TO SMITH M. WEED.
ASSEMBLY CHAMBER, March 3d, 1866.

Mr. Pitts from the committee on privileges and elections, to which was referred the petition of Hon. Andrew Williams, that he may be awarded the seat now occupied by Hon. Smith M. Weed, reported in writing, as follows:

REPORT OF COMMITTEE.

The committee on privileges and elections to which was referred the petition of Andrew Williams, Esq., claiming the seat in the Assembly held and now occupied by Smith M. Weed, as member of Assembly for the county of Clinton, which petition is hereto attached, report:

That on the 11th day of January, 1866, the committee met at the Capitol in the city of Albany; that the said contestant appeared in person, and the sitting member in person, and with counsel R. W. Peckham, Jr.; that at said time it was stated by each of the parties herein, that there would be a large number of witnesses to be sworn as to the illegal votes cast at the last general election held in the county of Clinton; and that it would take a number of days to take the evidence, that the said committee held another meeting in said city of Albany, on the 12th day of January, 1866, which was attended by said parties; that at said time an order was made that the contestant should on or before the 16th day of January, 1866, prepare and serve a statement of the votes claimed by him, to be illegal and which he proposed to attach, and any and all irregularities relied upon by him in his claim to the seat of the sitting member; that afterward the time to prepare and serve said statement was extended at the request of both parties hereto; that the said Andrew Williams had failed to comply with said order, and had not prepared to contest said seat save as above stated; that a few days since he appeared at Albany and informed your committee that he proposed to claim the seat upon the return and proceedings of the board of county canvassers, and when informed that the sitting member would be allowed to go into proof and take evidence as to illegal votes cast for the contestant for member of Assembly for the county of Clinton, at the last general election, and that it was a legal right belonging to him, declined to contest the said election, and informed your committee that he should not pursue the case further; alleging among other things that it would be impossible to take the evidence before the close of the session, there being so many witnesses.

The sitting member, Hon. Smith M. Weed, having received the certificate of election from the board of county canvassers of the county of Clinton, that he was duly elected to the office of member of Assembly from said county, at the late general election, by the greatest number of legal votes, is entitled to his seat until legal evidence is produced that he was not duly elected, and every presumption of law is in favor of the validity of his election.