Petition replying to remonstrance contesting a seat in the Legislature

Statement of Alfred Brunson in reply to the Memorial of Theophilus Lachapelle

Mr Dewey

Read and referred to the committee on Elections Feb. 12 1841

To the Hon. the House of Representatives of the Territory of Wisconsin.

The undersigned, a member of said House, from the district composed of the counties of Crawford and St. Croix, in [illegible] to the petition & remonstrance of Theophilus Lachapelle, contesting the right of the undersigned to a seat in this House, respectfully States:

That two members of this House were duly elected, at the general election in September 1840, by the qualified voters of said district: to wit the Hon. Joseph R. Brown, and the under signed, who received certificates to that effect from the proper officers and were admitted to their seats and qualified according to law.

That it appears from the general abstract of the return of said election, made to the Secretary's office, that the under signed recieved one hundred & six (106) votes, and that said Lachapelle recieved but eighty eight (88) votes, leaving to the undersigned a majority of eighteen (18) votes.

The undersigned has no knowledge that illegal votes were cast for him in the county of St. Croix, nor had he any intimation of such a charge untill the presentation of the petition and remonstrance of the said Lachapelle. But does believe, and it is respectable of proof that a large number of illegal votes were cast for said LaChapelle in the county of Crawford; but the undersigned having a decided majority in the whole district, he had no occasion to assertain the number or names of such voters, and, therefore cannot, at this time, state them with precision.

The undersigned respectfully suggests to the House further, that the petition of the said Lachapelle ought not to be sustained, for the reasons which follow: to wit.

1. Notice should have been given of the intention to contest, within a reasonable time after the canvass, & before the undersigned had taken his seat and was qualified. This was not done, nor does

the petitioner alledge that it was. In the debates in Congress, in contests of this kind, page 12, it is clearly admitted that notice of an intention to contest should be thus given.

2. In giving notice of, or in contesting seat of another, the contestant should state deffinitely the names of the persons whose votes he alledges were illegally given.

In the case of Varnum, page 112, contested election, it is stated that the allegations that votes were given by persons not qualified to vote, is defective, unless it shows the names of such persons." And, page 113, the following resolution was adopted by the House, in relation to the same care" Resolved that the allegation of said Aaron Brown, as to persons not qualified to vote, objected to for want of sufficient qualifications, ought to be set forth, prior to the taking of the tesimony."

In the care of Easton vs. Scott, page 272, it is said "If voters are objected to an account of the want of legal qualifications, the party excepting to them should, before taking testimony, give notice to his adversary of the particular qualifications in which they are deficient: a general severment in the notice, that the votes are illegal, is not sufficient; and the names of persons excepted to must also be stated." In the same case, page 285, the House Resolved, "that the names of persons objected to for want of sufficient qualifications, ought to be set forth prior to the taking of the testimony."

In the case of Lyon vs. Bates, page 372, it is said that "the petitioners allegations (of facts sufficient, if proved, to vacate the election) being unsustained by evidence, were considered insufficient, and he had leave to withdraw his memorial." And the House adopted the following resolution in the case: "Resolved that the committee of elections be discharged from the further considerations of the memorial and documents of Mathew Lyon, and that he have leave to withdraw his memorial."

In the case of Michael Leib, page 155, it is stated

that" a petition against [illegible] section of any person returned as a member of the House of Representatives, ought to state the ground on which the election is contested, with such certainty as to give reasonable notice thereof to the sitting member." And in a note on the same page it is stated, that "In the British commons, where the contest depends upon the legality of the votes given a list of the votes excepted to, must be left with the clerk of the House a certain number of days before the consideration of the petition: and the evidence is to be confined to the objections particularised in the list."

In the case of Leib, last quoted, the committee of Congress reported that they were "of opinion that on such a petition there can be no satisfactory trial of the merits of the election in question, and therefore recommend the following resolution: Resolved, that the petitioner have leave to withdraw his petition, and the papers accompanying the same:" - which was adopted without debate or division.

In the case of Potterfield vs. McCoy, page 270, the committee decided, "that all votes recorded on the poll lists should be presumed good unless impeached by evidence." And as the undersigned is shown by the poll lists to have a majority of votes, it should be considered in the absense of testimony to the contrary.

Having given the decisions of Congress in similar cases, which may be considered the common law case, the undersigned respectfully calls the attention of the House to the language of the said LaChapelle, which is susceptable of proof, that of the votes so given to the said Brunson, in said county of St. Croix, a large number, to wit; a number greater than the majority given to said Brunson were illegal, and given by persons not entitled to vote at said election."

It will be seen by the language of the petitioner, that the number and names of the voters alledged to have been illegally given are not stated, and consequently the petition of said Lachapelle comes within the precluded cares above quoted, & of course ought to be rejected.

3. In contesting the seat of a sitting member, it is suggested that the contestant should appear at the bar of the House to make his claim; so that if the sitting member should admit the truth of the charges made by the contestant, and

vacate his seat, the contestant could take the said vacated seat at once, otherwise the seat would be vacate and a portion of the people be unrepresented.

But the contestant in this case has not appeared, and therefore, his petition is not entitled to be heard. In cases of civil jurisprudence, if a plaintiff does not appear to sustain his suit, and in the absence of legal testimony he is liable to be defaulted. The House in deciding upon a contest for a seat, assumbes a judicial postition, so far as the rights of the parties, are concerned, and it is suggested that it should be governed by the rules of courts and dismiss the petition on account of the non appearance of the petitioner.

In the case of Varnum, above quoted, page 115 & 116. The committee reported, "that none of the petitioners or their agents, have appeared at the present session to prosecute , nor have they transmitted any evidence to support their allegations." "your committee are, therefore, of opinion that Joseph Bradley Varnum was duly elected, and that the charges contained in the said petitions againt the sitting member are wholly unfounded." Which report was adopted by the House.

4. The undersigned would further state the said Lachapelle is not at this time a resident of this Territory, he having accepted an office in the Indian department under the Winnebago agency, soon after the canvass and result of the last general election were known, and has, since that time, been a resident of the Territory of Iowa.

5. The undersigned would further state, that he has been informed, and it is susseptable of proof by the Hon. J.R. Brown, a member of this House, that of the votes polled for him in St. Croix county, some fourteen (14) votes taken at the Pekagaman precinct, owing to the distance & want of suitable means of conveyance, did not reach the clerk of the board of county commissioners, untill after the time prescribed by law, in consequence of which they were rejected.