Sec. CHAPTER EIGHT Contested Elections 161. Notice of intention to contest. 163. Time for taking testimony. 165. Notice of depositions; service. 167. Who may issue subpœnas. 168. What the subpoena shall contain. 169. When justices of the peace may act. 170. Depositions by consent. 171. Service of subpoena. 172. Witnesses need not attend out of the county. 173. Penalty for failure to attend or testify. 174. Witnesses outside of district. cer. Sec. 176. Depositions taken by party or 177. Examination of witnesses. 180. Production of papers. 181. Adjournments. 182. Notice, etc., attached to depositions. 183. Copy of notice and answer to accompany testimony. 184. How testimony to be sent to 185. Fees of witnesses. 187. Limitation of payment for expens- § 161. (R. S. § 105.) Notice of intention to contest. Whenever any person intends to contest an election of any member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the member whose seat he designs to contest, of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he relies in the contest. Act Feb. 19, 1851, c. 11, § 1, 9 Stat. 568. Rights, etc., of member pending contest.-Until a decision is made which unseats them, members of Congress' whose seats are contested are consid ered to be in all respects endowed with the same rights, powers, and privileges as other members. (1896) 21 Op. Atty. Gen. 342. § 162. (R. S. § 106.) Time for answer. Any member upon whom the notice mentioned in the preceding section may be served shall, within thirty days after the service. thereof, answer such notice, admitting or denying the facts alleged therein, and stating specifically any other grounds upon which he rests the validity of his election; and shall serve a copy of his answer upon the contestant. Act Feb. 19, 1851, c. 11, § 2, 9 Stat. 568. § 163. (R. S. § 107.) Time for taking testimony. In all contested-election cases the time allowed for taking testimony shall be ninety days, and the testimony shall be taken in the following order: The contestant shall take testimony during the first forty days, the returned member during the succeeding forty days, and the contestant may take testimony in rebuttal only during the remaining ten days of said period. Act Jan. 10, 1873, c. 24, § 1, 17 Stat. 408. This section was construed by Act March 2, 1875, c. 119, § 2, post, § 164. Notes of Perjury. Defendant was charged be fore a state court with perjury in hav Decisions ing testified falsely before a notary public in a proceeding under R. S. tit. 2, c. 8 (this chapter), regulating the taking of testimony in a contest for a seat in the house of representatives of the United States. Held, that the offense is cognizable only by the federal courts, under R. S. § 5392, post, § 10295, providing for the punishment of perjury in any case in which the laws of the United States authorize an oath to be administered, and the second sec tion of the Judiciary Act of Aug. 13, 1888, post, § 1233, subd. 1, giving the United States courts exclusive cognizance of all crimes cognizable under the authority of the United States. In re Loney (C. C. 1889) 38 Fed. 101, judgment affirmed Thomas v. Loney (1890) 10 S. Ct. 584, 134 U. S. 372, 33 L. Ed. 949. § 164. (Act March 2, 1875, c. 119, § 2.) Computation of time for taking testimony. Section one hundred and seven of the Revised Statutes of the United States shall be construed as requiring all testimony in cases of contested election to be taken within ninety days from the day on which the answer of the returned member is served upon the contestant. (18 Stat. 338.) This section was part of an act entitled "An act further supplemental to the various acts prescribing the mode of obtaining evidence in cases of contested elections." Section 1 of the act repealed in part R. S. § 127, post, § 184. § 165. (R. S. § 108.) Notice of depositions; service. The party desiring to take a deposition under the provisions of this chapter shall give the opposite party notice, in writing, of the time and place, when and where the same will be taken, of the name of the witnesses to be examined and their places of residence, and of the name of an officer before whom the same will be taken. The notice shall be personally served upon the opposite party, or upon any agent or attorney authorized by him to take testimony or crossexamine witnesses in the matter of such contest, if, by the use of reasonable diligence, such personal service can be made; but if, by the use of such diligence, personal service cannot be made, the service may be made by leaving a duplicate of the notice at the usual place of abode of the opposite party. The notice shall be served so as to allow the opposite party sufficient time by the usual route of travel to attend, and one day for preparation, exclusive of Sundays and the day of service. Testimony in rebuttal may be taken on five days' notice. Act Jan. 10, 1873, c. 24, §§ 1, 3, 17 Stat. 408. Act Feb. 19, 1851, c. 11, § 6, 9 Stat. 569. § 166. (R. S. § 109.) Testimony taken at several places at same time. Testimony in contested-election cases may be taken at two or more places at the same time. Act Jan. 10, 1873, c. 24, § 1, 17 Stat. 408. Cited without definite application, In re Howell (D. C. 1902) 119 Fed. 465. § 167. (R. S. § 110.) Who may issue subpoenas. When any contestant or returned member is desirous of obtaining testimony respecting a contested election, he may apply for a subpoena to either of the following officers who may reside within the congressional district in which the election to be contested was held: First. Any judge of any court of the United States. Second. Any chancellor, judge, or justice of a court of record of any State. Third. Any mayor, recorder, or intendent of any town or city. Fourth. Any register in bankruptcy or notary public. Act Feb. 19, 1851, c. 11, § 3, 9 Stat. 568. Act Jan. 23, 1869, c. 15, 15 Stat. 267. Cited without definite application, Thomas v. Loney (1890) 10 Sup. Ct. 584, 585, 134 U. S. 372, 33 L. Ed. 949, affirming (C. C. 1889) 38 Fed. 101; U. S. v. Cover (D. C. 1891) 46 Fed. 284. § 168. (R. S. § 111.) What the subpoena shall contain. The officer to whom the application authorized by the preceding section is made shall thereupon issue his writ of subpoena, directed to all such witnesses as shall be named to him, requiring their at tendance before him, at some time and place named in the subpoena, in order to be examined respecting the contested election. Act Feb. 19, 1851, c. 11, § 3, 9 Stat. 568. Cited without definite application, U. S. v. Cover (D. C. 1891) 46 Fed. § 169. (R. S. § 112.) When justices of the peace may act. In case none of the officers mentioned in section one hundred and ten are residing in the congressional district from which the election is proposed to be contested, the application thereby authorized may be made to any two justices of the peace residing within the district; and they may receive such application, and jointly proceed upon it. Act Feb. 19, 1851, c. 11, § 10, 9 Stat. 570. Cited without definite application, U. S. v. Cover (D. C. 1891) 46 Fed. 284. § 170. (R. S. § 113.) Depositions by consent. It shall be competent for the parties, their agents or attorneys authorized to act in the premises, by consent in writing, to take depositions without notice; also, by such written consent, to take depositions (whether upon or without notice) before any officer or officers authorized to take depositions in common law, or civil actions, or in chancery, by either the laws of the United States or of the State in which the same may be taken, and to waive proof of the official character of such officer or officers. Any written consent given as aforesaid shall be returned with the depositions. Act Jan. 10, 1873, c. 24, § 3, 17 Stat. 408. § 171. (R. S. § 114.) Service of subpoena. Each witness shall be duly served with a subpoena, by a copy thereof delivered to him or left at his usual place of abode, at least five days before the day on which the attendance of the witness is required. Act Feb. 19, 1851, c. 11, § 4, 9 Stat. 569. Cited without definite application, U. S. v. Cover (D. C. 1891) 46 Fed. 284. § 172. (R. S. § 115.) Witnesses need not attend out of the county. No witness shall be required to attend an examination out of the county in which he may reside or be served with a subpona. Act Feb. 19, 1851, c. 11, § 4, 9 Stat. 569. Cited without definite application, U. S. v. Cover (D. C. 1891) 46 Fed. 284. § 173. (R. S. § 116.) Penalty for failure to attend or testify. Any person who, having been summoned in the manner above directed, refuses or neglects to attend and testify, unless prevented by sickness or unavoidable necessity, shall forfeit the sum of twenty dollars, to be recovered, with costs of suit, by the party at whose instance the subpoena was issued, and for his use, by an action of debt, to any court of the United States; and shall also be liable to an indictment for a misdemeanor, and punishment by fine and imprisonment. Act Feb. 19, 1851, c. 11, § 5, 9 Stat. 569. Notes of Decisions Indictment for refusal to attend, etc. -An indictment under this section which avers that defendant, having been duly served with a subpoena, etc., "did refuse and neglect to attend and testify," but which fails to allege special statutory authority for the issue of the subpoena, and the particular official by whom it was issued, is insufficient. U. S. v. Cover (D. C. 1891) 46 Fed. 284. Jurisdiction of prosecution for perjury. A state court has no jurisdiction of a prosecution for perjury in giving a deposition before a notary public of the state to be used in proceedings to contest an election of a member of the House of Representatives. In re Loney (1890) 10 Sup. Ct. 584, 585, 134 U. S. 372, 33 L. Ed. 949. § 174. (R. S. § 117.) Witnesses outside of district. Depositions of witnesses residing outside of the district and beyond the reach of a subpoena may be taken before any officer authorized by law to take testimony in contested-election cases in the district in which the witness to be examined may reside. Act Jan. 10, 1873, c. 24, § 2, 17 Stat. 408. § 175. (R. S. § 118.) Party notified may select an officer. The party notified as aforesaid, his agent or attorney, may, if he see fit, select an officer (having authority to take depositions in such cases) to officiate, with the officer named in the notice, in the taking of the depositions; and if both such officers attend, the depositions shall be taken before them both, sitting together, and be certified by them both. But if only one of such officers attend, the depositions may be taken before and certified by him alone. Act Jan. 10, 1873, c. 24, § 3, 17 Stat. 408. § 176. (R. S. § 119.) Depositions taken by party or agent. At the taking of any deposition under this chapter, either party may appear and act in person, or by agent or attorney. Act Jan. 10, 1873, c. 24, § 3, 17 Stat. 408. § 177. (R. S. § 120.) Examination of witnesses. All witnesses who attend in obedience to a subpoena, or who attend voluntarily at the time and place appointed, of whose examination notice has been given, as provided by this chapter, shall then and there be examined on oath by the officer who issued the subpœna, or, in case of his absence, by any other officer who is authorized to issue such subpoena, or by the officer before whom the depositions are to be taken by written consent, or before whom the depositions of witnesses residing outside of the district are to be taken, as the case may be, touching all such matters respecting the election about to be contested as shall be proposed by either of the parties or their agents. Act Feb. 19, 1851, c. 11, § 7, 9 Stat. 569. Cited without definite application, U. S. v. Cover (D. C. 1891) 46 Fed. 284. § 178. (R. S. § 121.) Testimony, to what confined. The testimony to be taken by either party to the contest shall be confined to the proof or disproof of the facts alleged or denied in the notice and answer mentioned in sections one hundred and five and one hundred and six. Act Feb. 19, 1851, c. 11, § 9, 9 Stat. 569. § 179. (R. S. § 122.) Testimony, how written out and attested. The officer shall cause the testimony of the witnesses, together with the questions proposed by the parties or their agents, to be reduced to writing in his presence, and in the presence of the parties or their agents, if attending, and to be duly attested by the witnesses respectively. Act Feb. 19, 1851, c. 11, § 7, 9 Stat. 569. § 180. (R. S. § 123.) Production of papers. The officer shall have power to require the production of papers; and on the refusal or neglect of any person to produce and deliver up any paper or papers in his possession pertaining to the election, or to produce and deliver up certified or sworn copies of the same in case they may be official papers, such person shall be liable to all the penalties prescribed in section one hundred and sixteen. All papers thus produced, and all certified or sworn copies of official papers, shall be transmitted by the officer, with the testimony of the witnesses, to the Clerk of the House of Representatives. Act Feb. 19, 1851, c. 11, § 8, 9 Stat. 569. Decisions Notes of Requiring preservation of ballots.Under this section a district judge has power, and it is his duty, on proper application, to require the ballots cast at the election to be taken from the boxes and preserved, where it is shown that they are desired as evidence by one of the parties to the contest, and that under the state law they would be destroyed before they could be used; and it is immaterial whether or not the issues to the contest have been made up so as to authorize the taking of testimony when such application is made. In re Howell (D. C. 1902) 119 Fed. 465, 467. § 181. (R. S. § 124.) Adjournments. The taking of the testimony may, if so stated in the notice, be adjourned from day to day. Act Jan. 10, 1873, c. 24, § 3, 17 Stat. 408. § 182. (R. S. § 125.) Notice, etc., attached to depositions. The notice to take depositions, with the proof or acknowledgment of the service thereof, and a copy of the subpoena, where any has been served, shall be attached to the depositions when completed. Act Feb. 19, 1851, c. 11, § 7, 9 Stat. 569. Act Jan. 10, 1873, c. 24, § 3, 17 Stat. 408. § 183. (R. S. § 126.) Copy of notice and answer to accompany testimony. A copy of the notice of contest, and of the answer of the returned member, shall be prefixed to the depositions taken, and transmitted with them to the Clerk of the House of Representatives. Act Feb. 19, 1851, c. 11, § 9, 9 Stat. 569. § 184. (R. S. § 127, as amended, Act March 2, 1875, c. 119, § 1, Act March 2, 1887, c. 318.) How testimony to be sent to Clerk of House of Representatives; how opened; printing testimony, etc.; briefs. All officers taking testimony to be used in a contested election. case, whether by deposition or otherwise, shall, when the taking of the same is completed, and without unnecessary delay, certify and carefully seal and immediately forward the same, by mail or by express, addressed to the Clerk of the House of Representatives of the United States, Washington, District of Columbia; and shall also indorse upon the envelope containing such deposition or testimony the name of the case in which it is taken, together with the name of the party in whose behalf it is taken, and shall subscribe such endorsement. The Clerk of the House of Representatives, upon the receipt of such deposition or testimony, shall notify the contestant and the |