D'Alemberte v. State | Cases | Westlaw

*164 **490 On the 27th of July, A. D. 1908, an alternative writ of mandamus was issued by the Honorable John W. Walone, judge of the circuit court in and for Leon county, on the relation of Dannitte H. Mays, against 14 persons, including the plaintiffs in error, reciting, in substance:

First. That the Democratic party in the state of Florida, acting under the provisions of chapter 5014, p. 160, Acts 1901, Laws of Florida, entitled ‘An act to regulate the holding of political primary elections in the state of Florida for nominating candidates for any office under the laws of this state, and for nominating delegates to political conventions,’ and the amendments thereto, duly called a primary election to be held in the Third congressional district of the state of Florida, on May 19, 1908, for the purpose of nominating a candidate for said district for the House of Representatives of the United States Congress, to be presented on behalf *165 of the Democratic party to the voters of said congressional district at the general election to be held in the state of Florida on the Tuesday next succeeding the first Monday in November, 1908, and provided in said call for a second primary election to be held on June 16, 1908, in said district, in the event no candidate before said primary to be held on May 19, 1908, should receive a majority of the votes cast at said election.

Second. That relator Mays, J. Walter Kehoe, J. C. F. Griggs, and Jefferson D. Stephens, all citizens of Florida and residing within said congressional district, duly qualified as candidates before said primary election held on May 19, 1908; that on _____ day of May, 1908, the Democratic congressional committee for said congressional district met at the city of Tallahassee and canvassed the returns of said primary election and declared that no candidate having received a majority of the votes polled in said primary election for the nomination to the office of member of the House of Representatives from said distract of the Congress of the United States; that a second primary election should be held in said district on the 16th of June, 1908, to nominate a candidate for said office; that relator and J. Walter Kehoe having received a greater number of votes in said primary of May 19, 1908, than were cast for said Griggs and Stephens, the said committee declared relator and said Kehoe should participate in the second primary for nomination to said office, and that in said second primary the voters should choose between relator and said Kehoe as the Democratic candidate for said office.

Third. That on June 16, 1908, the second primary election was held pursuant to the call and the statutes, and relator and said Kehoe were candidates for nomination for member of the House of Representatives of the Congress of the United States from said district.

*166 Fourth. That said second primary election was held in pursuance of the statutes and the rules and regulations prescribed by the executive committee of the democratic party in the state, and that relator received in said second primary election a majority of the votes cast in said second primary for said position.

Fifth. That the Democratic county executive committees of the several counties of the district met in their respective counties after said second primary election and canvassed the returns from the several precincts in the several counties, and, having completed the canvass, duly certified the result of said primary election in the several counties to the Democratic congressional executive committee for said congressional district.

Sixth. That in said second primary election relator was chosen by a majority vote of all votes cast in said primary election in said district to be the candidate to be presented to the voters of said district on behalf of the Democratic party on said general election to be held in November, 1908, for member of the said House of Representatives; that the certificates made up and duly certified to by the several county Democratic committees in the counties composing the said district show relator was chosen by a majority of 49 votes of all votes cast at said second primary to be the candidate as aforesaid.

Seventh. That A. H. D'Alemberte, J. F. Poore, George W. Ward, J. M. Miller, and J. Neil as proxy for J. M. Miller, Milton Pledger, Tom Shuler, and J. F. Shuler as proxy for Tom Shuler, A. J. Alford, M. Bates, C. D. Clark, J. W. Henderson, S. M. Bolton, E. B. Bailey, and Black Ashley constitute the standing or executive congressional committee for the Third congressional district in said state; that said D'Alemberte is chairman of said committee; that it became and now is the duty of said executive committee to convene and canvass the *167 returns of said second primary election as the same **491 were made up, completed, and certified to said committee by the several county executive committees in the said several counties composing said district, and it became and is now the duty of said chairman to cause the name of relator to be certified to the several Democratic executive committees of each of said counties composing said district, as the successful candidate in said second primary election to be presented in behalf of the Democratic party of said state to the voters at said general election to be held in November, 1908, for member of the House of Representatives from said district of the Congress of the United States; that relator has the right by virtue of his aforesaid majority of votes cast in said second primary, by virtue of the canvass of said returns so made up, completed, and certified by the said several county executive committees by the said congressional executive committee, and to the certification of his name to the said county committees, as the successful candidate to be presented on behalf of said Democratic party to the voters at the general election to be held in November, 1908, for said office.

Eighth. Relator informs the court that said Democratic executive or standing committee for said district met in Tallahassee on the 25th of June, 1908, for the purpose of canvassing the returns of said second primary election, as the same were made up and certified to said committee by the said several county Democratic executive committees of said several counties of said district, but said congressional executive committee refused to canvass said returns, and the chairman of said committee failed and refused to cause the name of relator to be certified to the county committees of said counties composing said district, as the successful candidate to be presented by the Democratic party for said office of member of the *168 House of Representatives as aforesaid, notwithstanding relator had received a majority of all the votes cast in said second primary election for said office, and was thereby duly and legally chosen as the candidate of the said Democratic party, and said committee, without discharging their duty in this behalf, adjourned to meet in the said city of Tallahassee on the 15th of July, 1908.

Ninth. That said committee met on the 15th of July, 1908, in Tallahassee, at which meeting J. Walter Kehoe filed before said committee his petition, which was filed with the chairman of said committee on the 8th of July, 1908, alleging, among other things, in substance, that he and relator were the only candidates at said primary election held on the 16th of July, 1908, and he was qualified to be a candidate for Congressman from said district. That he (Kehoe) received a majority of all qualified votes cast in said election for Congressman, but by reason of an utter disregard of the statutes providing for the nomination of candidate for said office, in the counties of Leon, Madison, Jefferson, and Calhoun, in said petition more specifically set forth, there were a large number of illegal votes cast at said election for D. H. Mays, the opposing candidate, by persons not qualified electors, so that by counting and receiving the said illegal votes so cast for Mays, together with the legal votes cast for him, it was made to appear by the returns of said election that said Mays received a majority of the votes case in said district, when in truth and fact the protestor received in said election a majority of the legal votes cast therein for said office of Congressman. That if said illegal votes so cast for Mays be rejected, and the polls purged of all illegal votes so cast, the result of said election as the same now appears from the returns, based upon and including said illegal votes, would be changed, and would leave petitioner a majority of all legal votes cast at said *169 election for said office of Congressman, and would entitle petitioner to a certificate of nomination from said committee. That said petition contained certain allegations entitled ‘Leon County Specification No. 1,’ which was withdrawn. In specification No. 2 it was alleged, in substance, that in precinct No. 5 in Leon county there were but 10 persons qualified to vote at said election, yet the inspectors at said precinct received, canvassed, and returned 14 votes from said precinct, all of which were received and canvassed for D. H. Mays. That at precinct No. 8 in Leon county there were but 19 persons qualified to vote in said precinct at said election, yet the inspectors received, canvassed, and returned at and from said precinct 19 votes for Mays and 2 for protestant Kehoe, and that in precinct No. 16 in Leon county there were but 61 persons qualified to vote, yet the inspectors received, canvassed, and returned 94 votes, of which protestant Kehoe, according to the canvass and return, received 31, and D. H. Mays 63. That the said illegal votes in said precincts Nos. 5, 8, and 16 were cast, received, and canvassed by and with the connivance, knowledge, and consent of the inspectors and said illegal voters, with a common design to disregard the law and to ignore the provisions of the statutes regarding the poll tax as a prerequisite to voting. That said petition contained certain allegations entitled ‘Madison County Specifications Numbers 3 & 4.’ That specification No. 3 was withdrawn. That in specification No. 4 it was alleged that in precinct No. 3 in Madison county there were but 85 persons qualified to vote at said election, yet the inspectors received, canvassed, and returned at and from said precinct 105 votes; 72 for Mays and 30 for protestant Kehoe, according to the canvass and return of said inspectors. That the illegal votes at said precinct No. 3 were *170 cast, received, and canvassed by and with the connivance, knowledge, and consent of the said inspectors and said illegal voters, with **492 a common design to disregard the statute requiring a poll tax as a prerequisite for voting. that said petition or protest of Kehoe contained other specifications numbered 5, 6, and 7, which were withdrawn. that it was further alleged in said petition petitioner had been unable to examine the registration books in any of the precincts included in said protest, or procure copies thereof, save as specified, and that he had been unable to procure copies of the poll lists of any of said precincts. That prior to the canvass by the county executive committee of Leon and Madison counties the protestant filed with the chairman of said committees protests, copies of which were filed with said petition, marked ‘F’ and ‘G.’ That it was further alleged in said protest or petition, if 49 of the illegal votes so cast should be eliminated from the count, it would change the result and leave protestant a majority of all the rest of the votes cast, returned, and canvassed at said election, and entitle protestant to a certificate of nomination. Whereupon petitioner prayed that the polls of each of said precincts numbered 5, 8, and 16 in Leon county, and precinct numbered 3 in Madison county, be purged by rejecting said precincts in toto in canvassing the returns of said counties, and by rejecting the returns from such other precincts as may be discovered have become tainted and vitiated through the illegal acts of the voters, inspectors, or others as set forth in said petition. A copy of said petition as amended by elimination of said specifications is attached, marked ‘Exhibit A,’ and made a part of the alternative writ.

Tenth. The relator further informs the court that he filed with said committee his motion to dismiss and strike said protest filed by Kehoe with the chairman on the 8th *171 of July, 1908, upon the grounds that said protest did not show that any of the matters set up as a basis of contest against illegal votes were made the subject of challenge or objection to any alleged illegal votes before the inspectors of election, and upon the further ground that the committee did not have the power to entertain a contest such as was then presented, which motion is attached to and made a part of the alternative writ, marked ‘Exhibit B’; that the committee overruled said motion; whereupon relator moved to strike the specifications numbered from 1 to 7 embraced in the protest filed by Kehoe on July 8, 1908, upon the grounds:

First. Said specifications were so general, vague, and indefinite that each failed to show that the alleged irregularities affected the result of said election, or authorize any investigation by the committee.

Second. That none of the matters presented were made the subject of challenge or objection to any vote alleged to be illegal before the inspectors of election.

Third. That only three of the alleged matters of contest are based upon objections brought to the attention of the county executive committees before the votes were canvassed, and these are not shown to affect sufficient votes to change the result.

Fourth. That none of the objections to any alleged illegal votes, except in those counties, were brought to the attention of the county canvassing boards before the votes were canvassed, and these matters were not in those counties made the subject of objection before the inspectors of election.

Fifth. That it is not alleged that any particular illegal vote was cast for Mays.

Sixth. That the grounds set forth in said petition were not sufficient to authorize the rejection of the returns.

*172 Seventh. That the petition did not set forth the names of the alleged illegal voters, nor did it specify the grounds of the alleged illegality of such voters with sufficient particularity. And

Eighth. That the committee did not have the power to entertain the contest or protest as presented. That said committee overruled said motion and disregarded the same.

Eleventh. Relator further informs the court that J. Walter Kehoe filed before the Democratic executive committee of Leon county on June ___, 1908, his protest against the canvassing and counting of the returns of the primary election held on June 16, 1908, from 12 precincts in said county, including precincts numbered 5, 8, and 16, for the same reasons as have been heretofore set forth. The alternative writ then states the grounds of protest against the canvassing of the votes from the other precincts, but, as they are not involved here, the reasons are not given in this statement. The protest then states that the county executive committee of Leon county sent to the congressional committee the returns from said primary election held in Leon county, a copy of the protest filed by Kehoe, and the committee's ruling thereon dismissing said protest, upon the grounds that said protest was vague, indefinite, and uncertain, and failed to specify the particular grounds of the alleged illegality of said votes, and also transmitted to the congressional committee a certificate from the supervisor of registration of said county of Leon that the registration books of said county showed that in precinct No. 5 there were only 10 registered voters who had paid their poll taxes for 1907, in precinct No. 8 only 19 registered voters, and in precinct No. 16 only 61 registered voters, and that such list included those who were *173 over age and under age and otherwise not liable for a poll tax.

Twelfth. That the county executive committee of Madison county forwarded to the congressional executive committee the returns from the primary election held in said county, and certified that J. Walter Kehoe received in said county 333 votes, and D. H. Mays received 715 votes. That the said committee further certified that the following **493 irregularities were noted under protest of J. Walter Kehoe, a copy of which protest was inclosed with the returns, to wit: Precinct No. 3, three voters sworn and voted, names not appearing on the registration list; also, nine challenges, cause not noted by managers, the voters challenged were permitted to vote. Precinct No. 5, four voters were sworn and voted, names not appearing on the registration list. Precinct No. 6, four voters were sworn and voted, names not appearing on registration list. Precinct No. 8, two voters sworn and voted names not appearing on registration list, which said returns were signed by M. L. Leslie, chairman, and W. N. Davis, secretary of the Democratic executive committee for Madison county. That the protest of J. Walter Kehoe against the counting of the ballots in precincts Nos. 3 and 5 alleges that the ballots were secured on the day of the election before the closing of the polls, and were used on the outside of the polling booth during that day by the electors, and also that persons were allowed to vote who were sworn in at the polls on the day of the election who had not been previously sworn in as a qualification for an elector and who were not otherwise qualified to vote at said election. That there were attached to the returns from Madison county a letter from Hon. J. Walter Kehoe, dated June 18, 1908, addressed to the executive committee of Madison county, in which said Kehoe stated he was informed certain violations *174 of the primary law in the election on June 16, 1908, and that he desired to file a general protest against canvassing the vote of that county and every precinct thereof for Congressman, and asked to be given reasonable time to submit proof before the committee of said irregularities and to be advised as to when he could submit it. That he could be reached by wire at Marianna, and that, in the event that the committee did not grant his request, he asked that the committee canvass the ballots and not simply the tally sheets and certificate of the managers, and that, if his protest and request for time were not granted, they would attach his protest and request to the returns to the congressional committee. A copy of the returns as made up, compiled, and certified by the executive committee of Madison county, together with the letter and protest of said J. Walter Kehoe, are attached to the alernative writ, marked ‘Exhibit B,’ and made a part thereof.

Thirteenth. This ground of the alternative writ alleges that the protest seeking to invalidate the returns from precincts Nos. 5, 8, and 16 of Leon county, and the returns from precinct No. 3 in Madison county, only make a total of 42 illegal votes, not sufficient to change the result of the primary election.

Fourteenth. In this ground of the alternative writ it is alleged that the alleged illegal votes from Leon county should all be canvassed and counted, because neither Kehoe nor any one in his behalf challenged the said illegal voters before the inspectors of election at said precincts, nor were any of the objections to said votes raised by Kehoe in his protest to the count of said votes presented to the inspectors at said precincts, and, further, it is alleged that in the protest filed by Kehoe before the congressional committee for said district no objection *175 was made to the counting or canvassing the returns from precincts Nos. 5, 6, and 8 of Madison county.

Fifteenth. This ground of the alternative writ alleges that Kehoe introduced no evidence in support of his protest before the committee as to the alleged illegalities in the votes in Leon and Madison counties, nor that said alleged disqualified voters voted for D. H. Mays, but that notwithstanding the congressional committee continued its deliberations until Saturday night, July 18, 1908, and failed and refused to canvass the returns from said Leon and Madison counties, and adjourned to meet in Tallahassee on the 27th of July 1908, and that the chairman of said committee failed and refused to cause the name of relator to be certified to the county committees as the successful candidate to be presented to the voters at the general election, and that said congressional committee and the chairman thereof still refuse to canvass the said returns from Leon and Madison counties and continue to withhold from relator the certificate of his nomination.

Sixteenth. This ground of the alternative writ alleges that these failures and omissions on the part of the said Democratic executive congressional committee, and the chairman thereof, and each and every member thereof, to perform and discharge their duties and obligations to relator have resulted in great confusion, inconvenience, and injury to the relator.

Seventeenth. Relator alleges he is without remedy except through the writ of mandamus. The prayer of the writ as amended is as follows: Wherefore the relator prays that a writ of mandamus may be issued by the honorable court directed to the said A. H. D'Alemberte, J. F. Poore, George Ward, J. R. Wells, J. M. Miller, and J. Neil as proxy for J. M. Miller, Milton Pledger, Tom Shuler, and J. F. Shuler as proxy for Tom Shuler, A. J. *176 Alford, M. Bates, C. D. Clark, J. W. Henderson, S. M. Bolton, E. B. Bailey, and Black Ashley composing the Democratic congressioanl or standing committee for the Third congressional district of Florida, to forthwith canvass the returns of the primary election held in said district on June 16, 1908, in the several counties composing the Third congressional district of the state of Florida, as said returns were made up, compiled, and certified to said committee by the several county Democratic executive committees in the said counties composing said Third congressional district of Florida, and to ignore **494 and disregard the protest or petition of the said J. Walter Kehoe filed by him with the chairman of the said congressional or standing committee, and determine and declare in writing the name of the successful candidate for the office of member of the House of Representatives of the Third congressional district of Florida of the Congress of the United States, who appears from the face of the returns from said primary election held on June 16, 1908, as the same were made up, compiled, and certified by the county Democratic executive committees of the counties composing said Third congressional district of the state of Florida, to have been chosen by a majority vote of the electors in said primary election, and that such other and further order may be made in the premises as to your honor shall seem meet and justice may require, etc., and in duty bound your petitioner will ever pray. The alternative writ was amended by leave of court dismissing the cause as to J. Neil as proxy for J. M. Miller, and J. F. Shuler as proxy for Tom Shuler.

Attached to the alternative writ, and marked ‘Exhibit A,’ is the protest filed by J. Walter Kehoe with the Democratic congressional committee made a part of the alternative writ, the material points of which are set out in said writ, and the specific precincts named therein as *177 those in which persons were allowed to vote who had not paid their poll tax are precincts numbered 5, 8, and 16 in Leon county, and precinct numbered 3 in Madison county. This protest concludes with a prayer that the returns from these precincts be rejected in the canvass.

In the protests filed by Mr. Kehoe with the county executive committees of Leon and Madison counties, it is not charged that the alleged illegal votes ‘were cast, received, and canvassed by and with the connivance, knowledge, and consent of the inspectors and said illegal voters with a common design to disregard the law and ignore the provisions of the statute requiring a poll tax as a prerequisite to voting,’ as was done in his protest filed with the congressional committee. No point is made that Mr. Kehoe's protests with the county committees were not filed within proper time. They were disregarded by the county committees.

A motion was made by the plaintiffs in error to quash the alternative writ, containing 21 grounds, among them, that the court was without jurisdiction or authority to issue the writ, that the court could not control their discretion in the performance of their duty, that the court could not require them to ignore a protest lawfully filed, and that it does not appear from the writ the respondents were either clothed with or in the exercise of such public or sovereign powers and functions as to authorize either the state attorney or Attorney General to control their action by mandamus upon the relation of D. H. Mays or otherwise. This motion was overruled. The respondents excepted to this ruling, and were allowed 20 days to present their return.

On the 27th August, 1908, the respondents (plaintiffs in error except J. M. Miller) filed pleas in abatement to the effect that they were each severally residents of the several counties composing the Third congressional *178 district, that none of the members of said committee were residents of Leon county, except J. W. Henderson, that the cause of action did not accrue in Leon county, that no affidavit was filed by relator that the action was brought in good faith and without any intention of annoying the respondents, and that they claim a privilege of being sued, if at all, in their said several respective counties.

J. M. Miller filed a plea in abatement to the effect that he had been elected and had qualified as executive committeeman of Holmes county, he had not attended any of the meetings of the executive committee, had not acted in this case, but had been represented by proxy, and knew nothing of his own knowledge of what had transpired in the case. A similar plea was filed by Tom Shuler.

These pleas in abatement filed by plaintiffs in error were overruled, and they were required to file further returns instanter. J. M. Miller does not appear to have filed a further return, but the other plaintiffs in error did. Their return, with the exhibits attached to it, covers a great many pages of the record, and contains a long detailed statement of what occurred at the various meetings of the committee, all held in Lyon county, when they were considering the canvass of the votes sent up by the county committees. It does not deny what we regard as the material facts set up in the alternative writ, viz.: The facts that a second primary election was held in June, 1908; that the returns sent up by the county committees showed on their face that Mays had received a majority of 49 votes over Kehoe. It undertakes to justify its action in refusing to canvass the returns from the three precincts in Leon county, viz., 5, 8, and 16, because persons had voted at those precincts whose names did not appear as duly qualified upon the registration books, and to justify its action in regard to precincts 3, 5, 6, and 8 of Madison county. The language they use with reference *179 to these precincts is as follows: ‘That it appeared from the face of the certified returns from Madison county that in precincts 3, 5, 6, and 8 in said Madison county 13 unregistered and unqualified persons were permitted to vote for Congressman in said primary election of June 16, 1908, and it was resolved by said committee that nine of said votes so illegally cast in Madison county should be deducted from the total vote of the said Mays, and that 4 of the said votes should be deducted from the **495 total vote accredited the said Kehoe from the said precincts as canvassed and returned by the canvassing board of Madison county; the said deductions being in proportion to the votes purporting to have been cast and received by the said Mays and Kehoe in said precincts.’ The return then shows that, in canvassing the votes in this way, they found and officially announced that Kehoe had a majority of 19 over Mays of all the votes cast at said primary. In the prayer of the protest filed by Mr. Kehoe with the congressional committee, he only prayed that the precincts Nos. 5, 8, and 16 in Leon county and precinct No. 3 in Madison county be rejected in cavassing the returns of the respective counties. The return from the executive committee of Madison county to the executive congressional committee stated, in substance, that after canvassing the returns of the election held on June 16, 1908, Kehoe received 335 votes, and Mays 715 votes, and that certain irregularities were noted under the protest of Kehoe, viz.: In precinct No. 3, three voters were sworn and voted, names not appearing on the registration list; in precinct No. 5, four voters were sworn and voted not appearing on the registration list; in precinct No. 6, four voters were sworn and voted under same circumstances; in precinct No. 8, two voters were sworn and voted under same circumstances. As to the alleged illegal voting in Madison county there does *180 not appear to have been any other evidence before the congressional committee than is contained in the above-mentioned return by the county committee as irregularities. The return shows that the congressional committee met at various and sundry times at Tallahassee between the 8th of July, 1908, and the 27th of July, 1908, to canvass the returns, and gives in great detail what took place at those various meetings. It alleges that on the 27th of July they canvassed the returns and found a majority for Kehoe of 19 votes, and that he was given a certificate of election by the chairman some time before 8:30 p. m., to which hour the committee adjourned to enable the minority to make a minority report if they desired to do so; that when they met pursuant to adjournment, and after the certificate had been issued as aforesaid, the sheriff of Leon county unceremoniously delivered to D'Alemberte and others of the committee the alternative writ in this case and proceeded to read aloud in the presence of the committee the original writ of mandamus in this case.

The return denies that no evidence was produced by Kehoe of the alleged irregularities in the votes in the precincts in Madison and Leon counties, but that he offered in evidence before the congressional committee a certified copy of the registration books of Leon county after the closing of the books in 1908, a copy of which is attached to the return, marked ‘J’; that, in addition, he produced before the congressional committee and caused one D. A. Simmons to be sworn, who testified that he had addressed and mailed immediately prior to said primary election to the clerk and inspectors at each and every precinct in Leon county, including precincts 5, 8, and 16, a letter, a copy of which is attached to the return, marked ‘K,’ as a part of it. An examination of Exhibit J shows that it is not, and does not purport to be, a certified *181 copy of the registration books of Leon county, but only a certificate of the supervisor showing the number of voters in each precinct who had paid poll taxes within the time prescribed by law as certified by him to the tax collector, and all who are designated on the registration books as entitled to vote by reason of nonage and overage, and all designated as having no poll tax assessed against them or either of them of the two years last past. No names of registered voters are given, and the certificate is nothing more than a sort of summary made by the supervisor. Exhibit K is a letter by Mr. Simmons, the private secretary of the Governor, addressed to Mr. Rhodes, clerk of the primary election district No. 16, Leon county. This letter advises the party to whom addressed, in substance, that no one should be allowed to vote whose name was not on the copy of the registration book to be sent them by the supervisor on which could be noted every man entitled to vote by reason of his having paid his poll tax, or by reason of nonage or overage, and that the precinct officers who did so would violate their oaths and subject themselves to prosecution for perjury, under section 265 of the General Statutes of 1906. This letter is dated May 13, 1908.

On the 27th of August, 1908, the respondents filed an amended return, stating therein that since the service of the alternative writ on them the Secretary of State had issued a certificate to J. Walter Kehoe showing he had been nominated for candidate for Congress from the Third congressional district.

These returns were demurred to by relator on seven grounds, in substance:

First. They fail to deny the material allegations of the writ.

Second. Each sets up irrelevant, immaterial, and impertinent matters.

*182 Third. The reasons set up for not canvassing the votes from Leon and Madison counties are not sufficient.

Fourth. The committee was without jurisdiction to entertain the protest of Kehoe.

Fifth. The returns show an abuse of the powers given by law to the committee.

Sixth. The returns are evasive.

Seventh. The returns show nothing inconsistent with the rights of relator.

The court sustained this demurrer on the 28th of August, 1908, and ordered a peremptory writ. On the same day, 28th of August, 1908, and previously to the making of the above order, the respondent made a motion to quash the alternative writ, because, in substance: First, the statute upon which the writ was based in unconstitutional and void, in that it prescribes qualifications for voters and electors at primary elections other than those prescribed in the Constitution, and is violative thereof, in that it delegates to committees calling primary elections the power to prescribe qualifications of voters and electors at said elections in addition to those prescribed in the Constitution, and to assess sums of money against and require payment of same by candidates as a prerequisite to become a candidate; second, that the alternative writ as amended is unauthorized by the prayer of the petition and is at variance with same. This motion was overruled, and respondents excepted ot the ruling.

A peremptory writ of mandamus was issued and served, and the respondents made a return in accordance with its mandate showing that Mays was nominated by a majority of 49 votes.

Six other members of the congressional committee filed returns, admitting the allegations of the alternative writ, and alleging that they had always been willing to canvass the returns from the county committees according to what appeared on their face, and that they were perfectly willing to obey the peremptory writ. They further alleged that there was no evidence introducd by Kehoe before the committee showing a violation of law by the inspectors or connivance with voters to have illegal votes cast for Mays. We have to give the substance of this long record embracing about 300 pages, and if we have failed in any particular under the pressure upon us to reach a conclusion in the interest of the public, we must refer to the exceedingly defective index which accompanies the record. We have practically had to make our own index.

Such other facts as it may be necessary to notice will by referred to in the opinion. A writ of error sued out by the plaintiffs in error brings the orders of the court below here for review.