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therefrom; and would recommend, therefore, that J. S. Busey be admitted to his seat in this House, instead of the sitting member, and that said Busey be immediately sworn into office by some person authorized to administer the oath; and respectfully ask further time for the consideration of the memorial of Michael Brandt.

And moved its adoption.

Mr. Newport from the same committee, submitted the following minority report, viz:

A minority of your committee, to whom was referred the subject of the contest for a seat in this House, between John S. Busey and William N. Coler-the said Coler now holding said seat, and the said Busey contesting the same-beg leave to report that they find the following:

By admission of the parties, the said Coler and Busey were candidates for representatives to this General Assembly from the 40th district. The said Busey was an independent candidate, not put in nomination by any party. It did not appear whether said Coler received a party nomination. It further appeared, by the admission of the parties, that in the county of Champaign, in which said claimants for said seat resided at the time of the election, there was one James S. Busey, a resident of the county, who had been for some time (it did not appear how long) in the State of Missouri, but who had returned a few weeks. before the election, and before the contestant announced himself as a candidate; and that there was also a John S. Busey in the army, and who resided in said county at the time he entered the service-making three Buseys, legal residents of said county, to whom the initials J. S. would equally apply.

No question is made about the regularity and legality of the notice to Coler, and the appointment of the commission to take testimony under the statute. But the minority of your committee, signing this report, insist that said testimony cannot be admitted, on clear and recognized principles of law respecting the admissibility of evidence. A certain writing was introduced by the contestant, and permitted to come before the committee, which purported to be a certified copy of depositions taken for the contestant before the commissioners, and was the only evidence introduced by him, excepting the return of the clerk of election of the precinct, in which the vote returned for James Busey by said clerk is sought to be counted for the contestant, to make out his case, and also the abstract of the votes for representative in Champaign county, certified by the county clerk.

The writing purporting to be depositions, of which the copy was submitted as evidence, was taken by a clerk, and the testimony reduced to writing by him, and not by the commissioners, as required by the

statute.

The testimony was not subscribed by the witnesses, and was not sworn to after being taken.

The commissioners should have taken the testimony by deposition. The writing is not in the form of and has not the legal requisites of depositions.

Being certified as depositions, it must have all the legal requisites of depositions to make it admissible testimony.

If any form of written testimony, other than deposition, would be a sufficient compliance with the statute, this writing, not being what it was intended and purports to be, cannot be considered.

Certified copies of depositions cannot be received as evidence.

If this writing is not to be considered as depositions, and was other wise sufficient, a copy is clearly inadmissible, because the statute requires the original to be certified to the Speaker of the House.

If the testimony was taken properly, and in due form, it does not make out a case for the contestant.

There is no evidence that the rejected votes were intended for John S. Busey. The initials alone being printed on the tickets, could be counted as well for James as John S. Busey. The votes being certified to James Busey, they must stand for him, unless an inspection of the ballots shows that John S. Busey was the candidate voted for. This principle is fully established, under a statute, substantially the same as that of this State, in regard to voting by ballot, in 1st Mich., 59, and 3d Mich., 233. But if it was lawful to explain the intention of the voters by parole testimony, no such proof is submitted in this case. Clearly, this can only be done by the voters themselves. The only pretense that can be set up of proof of the intention of the voters to cast their ballots for the contestant, is the statement of one or two witnesses, that they knew of no other candidate for representative by the name of J. S. Busey. No lawyer can for a moment contend that such negative proof of an affirmative proposition can be admissible. The voters themselves are the only persons who can swear to their intentions, especially in this case, where the votes might with equal propriety have been counted for three different individuals, all residents of the same county. No person can swear to the intentions of another. He may swear to conversations and acts of others only, from which an inference of intention may, when warranted, be drawn. In this case, it is not even shown who deposited the votes.

Again, as set forth in this copy of what purports to be testimony, the county clerk of Champaign county swears, from recollection, to the number of votes cast in the other counties of the district-Macon, Piatt and Moultrie-from having seen the abstract of votes. The admission of such testimony contravenes one of the clearest rules of evidence that which requires the production of the highest and best evidence. An abstract of those votes, properly authenticated, is clearly the only admissible evidence on this point. This failing, of course the case of the contestant fails.

We beg leave to call the attention of the House to the case of Eastman vs. Shallenberger, contested at the legislative session of 1857. In the case referred to, it was shown, so far as such a negative proposition could be shown, that no other person of the name of the contestant resided in the district; that both parties were regular party nominees; that a mistake was made simply in printing the middle initial letter of the name of the contestant in some of the tickets; and by one or more electors, that he or they voted such ticket or tickets, intending to vote for the contestant. These votes were not counted for him, and on that account the certificate was issued to the party holding the seat; yet the dominant party in the House at the time, and which happened to be

the same party which is now dominant in this House, declared that such evidence was clearly insufficient to give the seat to the contestant, and retained the sitting member. If there was no doubt in that case, there cannot possibly be any in this.

The minority of your committee, signing this report, therefore respectfully submit the following resolution for the adoption of the House: Resolved, That we do not find sufficient evidence to support the claim of John S. Busey to the seat now occupied by William N. Coler in this House. J. W. NEWPORT,

L. W. LAWRENCE.

A message from the Senate, by Mr. Mayfield, Secretary: Mr. Speaker: I am directed to inform the House of Representatives that the Senate has passed a bill by the following title, viz:

A bill for "An act to authorize the county court of Williamson county to increase the assessments for county purposes."

And I am directed to respectfully ask the concurrence of the House in the passage thereof.

MANNING MAYFIELD,

Secretary of Senate.

Mr. Newport moved that the minority report submitted by him be a substitute for the majority report submitted by Mr. Shope, and that it be laid on the table, printed, and made the special order of the day for Thursday next, at two o'clock P. M., and demanded the yeas and nays. And the question being put,

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Mr. Newport moved that the minority report be a substitute for the majority report, that it be laid on the table, and made the special order for Thursday next, at two o'clock P. M.

The Speaker decided the motion out of order.

On motion of Mr. Shope,

(By consent of the House,) the evidence in said contested election was read at the Clerk's desk; when, after debate,

The question recurring on the concurrence of the House with the majority report,

Mr. Fuller moved the previous question; which was seconded, and the main question put, viz: "Will the House concur with the majority report of the committee?" upon which,

Mr. Burr demanded the yeas and nays, and

It was decided in the affirmative,

Those voting in the affirmative are,

es... Nays....

Messrs. Roessler,
Sharon,

..58

21

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Sharp,

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The House, at 11:55, adjourned until two o'clock P. M.

TWO O'CLOCK, P. M.

House met, pursuant to adjournment.

A message from the Senate, by Mr. Mayfield, their Secretary: Mr. Speaker: I am directed to inform the House of Representatives that the Senate have passed a bill by the following title, viz:

A bill for "An act in reference to fees and salaries."

And I am directed to respectfully ask the concurrence of the House in the passage thereof.

MANNING MAYFIELD,

Secretary of Senate. Mr. John S. Busey, a Representative of the 40th district, appeared; whereupon Judge Higbee, of Pike, who was present, duly administered to him the oath of office, and Mr. Busey took his seat as a member of this House.

Mr. Springer submitted the following resolution, which was read, considered and agreed to:

Resolved, That the Clerk inform the Senate that the House is now ready to receive the Senate in joint session, for the purpose of electing a United States Senator, to fill the vacancy occasioned by the death of Stephen A. Douglas.

The Door-keeper of the House announced the Senate; and the Senate, preceded by their Speaker, then entered the hall of the House of Representatives, and took the seats assigned them.

A call of the joint session was ordered, when the following Senators answered to their names, viz:

Messrs. Allen, Berry, Blanchard, Bushnell, Dummer, Funk, Green, Gregg, Knapp, Lansing, Lindsay, Mack, Mason, Moffat, Peters, Pickett, Richards, Rodgers, Schofield, Underwood, Vandeveer, Ward and Worcester-23.

And the following Representatives answered to their names, viz:

Messrs. Black, Boyer, Brentano, Brown, Burchard, Burr, Busey, Cabeen, Chapman, Church, Coffeen, Cook, Conger, Daugherty, Davis, Dent of LaSalle, Dent of Putnam, Eastman, Elder, English, Epler, Ford, Fuller, Gage, Gale, Gerrard, Gibson, Ginther, Goodell, Graham, Green, Haines, Harris, Heard, Hicks, Holgate, Holyoke, Howe, Keyes, Kistler, Lacy, Lake, Lay, Lawrence, Mann, McCann, Merritt, Miller, Monroe, Morrill, Newport, O'Brien, Odell, Patty, Peffer, Reid, Roessler, Sedgwick, Sharon, Sharp, Shope, Smith of Union, Smith of Whiteside, Springer, Ten Brook, Tenny, Throop, Turner, Wakeman, Walker, Washburn, Watkins, Wenger, Wescott, Wheat, Wike, Williams, Witt and Mr. Speaker-79.

On motion of Mr. Burr,

Further proceedings under the call were dispensed with.

The Speaker announced that nominations for the office of Senator of the United States, to fill the vacancy occasioned by the death of Hon. Stephen A. Douglas, would be in order; whereupon,

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