sixteenth day after the close of the election, and allow the secretary to employ clerks for thirty days thereafter in compiling returns. 4. The returns of votes for members of Congress and other officers are all to be sent to the secretary of state by the local judges in the same envelope, and unless sections 34 and 35 apply to them there is no provision of law for opening, counting, compiling, or preserving them by anybody. 5. Section 26 expressly provides that the provisions of this act (making no exceptions), shall apply to all officers whose election is not otherwise provided for. It was then, in our judgment, the duty of the secretary to open the returns of the local officers, to make a table of the returns, and put the originals back again in the envelopes. This is to be done in the presence of the governor and attorney-general. A certificate of the returns is then to be entered, by the secretary, on record, sigued by the governor, and a copy, signed by both secretary and governor, to be delivered "to the person so elected." The attorney-general is required to be present at the opening, but not to sign the returns. The document produced by Mr. Clarke, and referred by the House to the committee, is precisely such a document. It is signed by the governor and secretary, declares Mr. Clarke to be duly elected, states that it is a document on record in the secretary's office, and contains the tabulated statement of returns required by law. It is true it does not state that the attorney-general was present when the local returns were opened, and it is not required to state this by the law. The certificate of the returns is all that is to go on the record. It is true also that it shows that some local returns are rejected; but these are all rejected for reasons which, by the express provisions of law, it was made the duty of these officers to weigh and act upon, except in the case of Brazos County, which does not affect the result. It is true also that it does not appear that, in investigating the allegations of violence and intimidation, the State officers proceeded in the mode pointed out by the law; but it does not appear that they did not. It is not necessary that they should record or certify how they proceeded. The maxim omnia rite acta esse presumuntur is clearly appli cable in a case of this sort. Few, if any, of the credentials of the members of the House show how the officers who certified them proceeded under the State laws in ascertaining the fact which he declares. It is enough for a prima facie case if the certificate came from the proper officer of the State, and clearly shows that the person claiming under it has been adjudged to be duly elected by the official or board on whom the law of the State has imposed the duty of ascertaining and declaring the result. We therefore recommend the adoption of the following resolution: Resolved, That W. T. Clarke has the prima facie right to a seat as Representative from the third congressional district of the State of Texas, and is entitled to take the oath of office as a member of this House, without prejudice to the right of any person claiming to have been elected thereto to contest his right to said seat upon the merits. GEO. F. HOAR, For the Committee. A. GOVERNOR'S Office, Austin, November 15, 1871. This is to certify that, on comparison of the returns of votes cast at an election held in the third Congressional district of the State of Texas, on the 3d, 4th, 5th, and 6th of Octo ber, A. D. 1871, provided for by joint resolution of the legislature of said State of Texas, approved May 2, 1871, I find that the Hon. W. T. Clarke was duly elected to represent the said Congressional district of the State of Texas in the Congress of the United States for the term commencing on the 4th day of March, A. D. 1871, and ending on March 3, 1873. In giving this certificate I wish to call attention to the attached certified statement of the vote cast in the third district as returned, with grounds for rejecting certain returns. This is explanatory of my reasons for giving the foregoing certificate of election. According to my opinion, the numerous irregularities and instances of fraud and violence during the election in the third district, reported and proved to my satisfaction, would rather warrant a new election than the giving of a certificate to either party. I have felt constrained by my interpretation of the provisions of the State law on the subject of elections to reject many returns, and would have thought it more just to regard the election as a nullity; yet the act of Congress of May 31, 1870, section 22, seems to require that I should give a certificate of election to one of the candidates. In testimony whereof I have caused the great seal of the State to be affixed, at the city of Austin, the date herein first above written. Statement of the number of votes cast in the third district for candidates for Congress at an election held therein on the 3d, 4th, 5th, and 6th October, 1871. Counties. Statement of the number of votes cast in the third district, &c.-Continued. W. T. Clarke. D. C. Giddings. 110 The votes received at the "white man's" place of votingat what was called "the white man's ballot-boxes "-are rejected, because two voting-places are not allowed by law, and because that box was not presided over by even one lawful officer. Also because 458 aliens were registered on declaration of intention to become citizens, made by them in vacation, before a clerk, and not in term-time, before a competent court, of whom all or nearly all voted at what was called "the white man's box," and for other sufficient causes. The vote cast at the lawful box is alone counted. DEPARTMENT OF STATE, Austin, November 14, 1871. I, J. E. Oldright, acting secretary of state for the State of Texas, hereby certify that the foregoing is a true copy taken from the records of this office. Witness my hand and official seal at office in the city of Austin the date above written. B. SECTION 21. That in any county, city, town, road, or precinct in which, during the time of election, there shall be any riot, tumult, acts of violence, intimidation, armed disturb ance, bribery, or corrupt influences at any place at or near any poll or voting-place, which riot, tumult, acts of violence, intimidation, and disturbance, bribery, or corrupt influences shall prevent or tend to prevent a fair, free, peaceable, and full vote of all the qualified electors of said county, city, town, road, or precinct, it shall be the duty of the judges of election, if such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences occur on the days of election, to make, in duplicate and under oath, a clear and full statement of all the facts relating thereto, and of the effect produced by such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, in preventing a fair, free, peaceable, and full election, and of the number of qualified electors deterred from voting by such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, which statement shall also be corroborated, under oath, by three respectable citizens, qualified electors, of the county. When such statement is made by a registrar, he shall forward one copy thereof, immediately after the close of the election, to the governor, and shall deposit the other with the clerk of the district court. SECTION 23. That as soon as possible after the expiration of the time of making the returns of the election for Representatives in Congress, a certificate of the returns of the election for such Representatives shall be entered on record by the secretary of state and signed by the governor, and a copy thereof, subscribed by said officers, shall be delivered to the person so elected, and another copy transmitted to the House of Representatives of the Congress of the United States, directed to the Clerk thereof. SECTION 24. That in case of vacancy, by death or otherwise, in the said office of Representative in Congress, between the general elections, it shall be the duty of the governor, by proclamation, to cause an election to be held, according to law, to fill the vacancy. SECTION 26. That the provisions of this act, except as to the time of holding elections, shall apply to the election of all officers whose election is not otherwise provided for. SECTION 33. That immediately upon the close of the polls, on the last day of election, the judges of election, at each poll or voting-place, shall proceed to count the ballots in the presence of the register and two citizens of the county, and make a list of all the names of the persons and officers voted for, the number of votes for each person, the number of ballots in the box, and the number of ballots rejected, and the reasons therefor. Said statement shall be made in triplicate, and each copy thereof shall be signed and sworn to by the judges of election and by the registrar. The registrar or board of election shall inclose in an envelope of strong paper or cloth, securely sealed, one copy of such statement from each poll, and one copy of the list of persons voting at each poll, and one copy of any statements as to violence or disturbance, bribery or corruption, or other offenses specified in section twenty-nine of this act, if any there be, together with all memoranda and tally-lists used in making the count, and statement of the vote, and shall send such package by mail, properly and plainly addressed to the secretary of state. The registrar or board of election shall send a second copy of said statement to the governor of the State by the next most safe and speedy mode of conveyance, and shall retain the third copy in his own possession. SECTION 34. The secretary of state shall make a table containing an alphabetical list of the counties, with columns for the names of candidates and the number of votes; and on the sixteenth day after the close of the election shall, in the presence of the governor and attorney-general, proceed to open the returns and enter on the table the number of votes given for the candidates, respectively, and then place the returns back in the envelope, seal it, indorse it, and carefully file it away in his office. A copy of the tabular returns made out by the secretary of state shall be printed in the official State journal. The governor shall, within thirty days thereafter, issue commissions to all officers thus declared elected, who are required by law to be commissioned. SECTION 35. That in compiling the returns the returning officers shall compile first the statements from all polls or voting-places at which there shall have been a fair, free, and peaceable registration and election. Whenever, from any poll or voting-place, there shall be received the statement of any registrar or judge of election, in form as required in this act, on affidavit of three or more citizens, of any riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, which prevented, or tended to prevent, a fair, free, peaceable, and full vote of all qualified electors entitled to vote at such poll or voting-place, such returning officers shall not canvass, count, or compile the statement of votes from such poll or voting-place, until the statements from all other polls or votingplaces shall have been canvassed and compiled. The returning officers shall then proceed to investigate the statements of riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences at any such poll or voting-place; and if from the evidence of such statements they shall be convinced that such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences did not materially interfere with the purity and freedom of the election at such poll or voting-place, or did not prevent a sufficient number of the qualified electors thereat from voting, so as materially to change the result of the election, then, and not otherwise, said returning officers shall canvass and compile the votes of such poll and voting-place with those previously canvassed and compiled; but if said returning officers shall not be fully satisfied thereof, it shall be their duty to examine further testimony in regard thereto, and to this end they shall have power to send for persons and papers. If, after such ex amination, the returning officers shall be convinced that said riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, did materially interfere with the purity and freedom of the election at such poll or voting-place, or did prevent a sufficient number of the qualified electors thereat from voting, so as to materially change the result of the election, then the said returning officers shall not canvass or compile the statement of the votes at such poli or voting-place, but shall exclude it from their returns. The secretary of state may employ such clerks as may be necessary to compile returns, for a length of time not to exceed thirty days, who shall be paid five dollars per day. The comptroller shall issue his warrant upon the treasury for the payment of such clerk-hire. MINORITY REPORT. Mr. Rice submitted the following minority report: The undersigned, members of the Committee of Elections, to whom was referred a certain document claimed by W. T. Clarke to be a valid certificate of his election as a member of the Forty-second Congress from the State of Texas, for the third Congressional district in said State, respectfully submit That the committee have examined and considered the document so referred to them, and that we are unable to agree with the majority of the committee. We find that said document embraces a certificate that W. T. Clarke was duly elected to represent the third Congressional district of the States of Texas in the Congress of the United States for the term com mencing on the 4th day of March, A. D. 1871, and ending on the 3d day of March, 1873, at an election held in said district on the 3d, 4th, 5th, and 6th days of October, 1871. That said election was provided for by a joint resolution of the legis lature of the State of Texas, which resolution was approved the 2d day of May, 1871; that said certificate is signed by the governor and secretary of the State of Texas; and that upon inspection it also appears that the same contains qualifications and recitals that go very far to lessen its character, if not to destroy its validity altogether as prima facie evidence of title to a seat in this House by W. T. Clarke. The conclusion reached by Governor Davis, as appears from the closing lines of the certificate in question, was not owing so much to the fact that he believed Mr. Clarke, or any other candidate, to have been duly and legally elected, as to the fact that he was impressed with the belief that he was compelled by the 22d section of the act of Congress of May 3, 1870, to give a certificate of election to one of the candidates. This certificate also refers to (and we hold adopts as a part thereof) a certified statement of the vote cast in the third district of the State of Texas for Representative in the Forty-second Congress for said district. A copy of said certificate of election, certified statement of the votes returned, and "remarks" showing the rejection of votes returned, and the reasons or grounds of rejection, is herewith submitted as a part of this report. It appears by the vote returned, as shown by the certified statement referred to and verified by the governor, that if the whole number of votes polled for W. T. Clarke were counted for him, and the whole number polled for D. C. Giddings were counted for him, the majority for Mr. Giddings would be 730 votes. Mr. Giddings insist that the evidence furnished by the documents or certificates referred to the committee shows that he was in fact duly elected, and that he is entitled to take his seat as a member of this House for the third district of the State of Texas. If the votes are to be counted for the respective candidates as they were returned to the secretary of state by the boards of election or registrars, then Mr. Giddings is clearly entitled to the seat for said district. But if, on the contrary, the governor of the State of Texas, after the votes for member of Congress for said district were returned to him, had lawful power and authority to reject all the votes which he states he did reject, then Mr. Clarke is entitled to be admitted to his seat, if there was in fact a lawful and valid election held in said third district of the State of Texas at the time stated in said certificate. This brings us to the question, What is the legal effect of a certificate stating that the party to whom it is given was duly elected to an office, where the certificate recites or adopts by reference a state of facts which shows that the holder was not elected? Clearly the facts must stand, and the conclusions which the facts contradict must fall. If the facts show, as we think they do, that Mr. Giddings was elected, the statement that Mr. Clarke was duly elected cannot be accepted. The question arises as to the extent of the authority and power of the governor to reject the returns of the election as made to him or the secretary of state. This is to be ascertained by an examination of the election law of the State of Texas. Upon a careful examination of the same we fail to find, according to our views of correct interpretation, any such power. It further appears that the whole vote of the county of Bosque was rejected for the reason, as it is said, that no "official returns were received." The vote in this county stood 77 for W. T. Clarke and 457 for |