wit: That in each and all of said election precincts in said County of Stanislaus, as contestant is informed and believes, and so charges the fact to be, ballots were actually cast and given to this contestant, for said office of State Senator for said Fifth Senatorial District, amounting in the aggregate to one hundred (100), which were not counted for him, the contestant, but were wrongfully and illegally, by said Boards, counted and declared for said Montgomery, and which said number of votes, if taken from him, the said Montgomery, will reduce the number of legal votes of said Montgomery in said district, for said office, below the number of legal votes given to this contestant for said office in said district.

Second-That the Boards of Election of the Precincts of Buena Vista and Westport, in said Stanislaus County, failed to return the votes cast at said precincts at said election, as the law directs; and that at each of said precincts there were counted, by the Board of Canvassers of said county, a majority of votes for the said Montgomery, to wit: at the precinct of Buena Vista fourteen majority, and at the precinct of Westport eight majority, making in the aggregate twenty-two (22) majority for the said Montgomery; which said twenty-two votes, and all of said votes so returned from said precincts, should have been thrown out and excluded from the count made by the said Board of Canvassers. R. H. WARD, Contestant.

STATE OF CALIFORNIA,

County of Merced,

R. H. Ward, being duly sworn, says that he is the person who signed the above statement; that he has read the same and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated upon his information and belief, and as to those matters he believes it to be true. R. H. WARD.

Subscribed and sworn to before me, this 21st day of September, A. D. 1875.

TO THE HONORABLE SENATE OF THE STATE OF CALIFORNIA:

In the matter of the contested election for Senator of. the Fifth Senatorial District, wherein R. H. Ward is the contestant, and J. M. Mont gomery is respondent, now before the Committee of Elections of the Senate of California.

J. M. MONTGOMERY, being duly sworn, deposes and says:

That at the general election held throughout the State of Cali fornia, on the first day of September, eighteen hundred and seventy

five, that he was duly and regularly elected Senator of the Fifth Senatorial District, composed of the Counties of Stanislaus, Merced, and Mariposa, and received his certificate of election, and at the commencement of the session of the present Legislature he took the oath of office and entered upon the duties thereof.

That at the said election this deponent and R. H. Ward, Esq., were the only candidates for the said office of Senator, and were the only persons voted for by the qualified voters of the said district.

That at the said election a larger number of legal votes were cast for this deponent than for the said R. H. Ward, and upon a canvass thereof, duly had by the proper officers, such fact was determined, and a certificate of election was duly issued by the proper officers to this deponent.

That shortly after the said election, and within the time required by law, the said R. H. Ward served and filed with the proper officer notice and alleged statement, proposing to contest the election of this deponent to the office of State Senator aforesaid, which statement and notice was transmitted to the Secretary of State, and was by him laid before the Senate for their action. In said alleged statement the said R. H. Ward charged certain misconduct and malconduct in the matter of said election in the County of Stanislaus only, and claimed that in said county votes equaling one hundred were cast for the said R. H. Ward which were wrongfully counted for this deponent, and that by said error, malconduct, and mistake the said return did not state correctly the true state of the election, but that if said votes were counted for the said R. H. Ward, that they would show a majority in said district for him, instead of for this deponent. No testimony was taken before any magistrates, but this contest was referred to the Senate without taking any testimony at all.

Upon appearing before the committee appointed by the Senate, this deponent, through his attorney, filed a motion to quash the statement, and to dismiss the contest, and supposed in good faith that said motion would prevail. But the committee, in examining the matter, came to a different conclusion, and against the protest of this deponent proceeded to recount the votes of Stanislaus County. From which recount it did appear that some slight error had been made in favor of this deponent, by the Board of Canvassers of said county, if the ballots as counted by the committee were really and in fact those cast at the election.

But aside from all the uncertainty ordinarily accompanying a recount of ballots months after the election at which they were cast, deponent avers that said recount showed a strange, and, to this deponent, an unsatisfactory state of facts.

Amongst other things, the vote of Turlock Precinct, which came. before the committee in an open and broken package, and which in deponent's opinion should not have been recounted, showed an actual change of some twenty votes.

The vote of Tuolumne City Precinct, which, as returned, showed a vote of twelve votes for this deponent, on a recount showed only two votes; while, to sustain the return of the officers of the election, there was not only the vote carried out, and written in figures and also in full, but the tally list showed that twelve votes had actually been called and counted for this deponent.

A like state of facts also obtained with Empire Precinct, showing a marked and material change.

Déponent is informed and believes that in Tuolumne City Precinct that he can produce the persons who voted more than two votes for him at said election for State Senator.

Deponent is informed and believes that if the said votes are to stand, so recounted, as the correct vote, that it would give R. H. Ward, contestant, a majority of one vote in the whole district, if the returns of Mariposa and Merced are to stand as returned by their respective Boards of Canvassers; but that he believes, for the reasons aforesaid, that the votes of Stanislaus should not be recounted. Deponent is informed and believes, and so charges the fact to be, on such information and belief, that the respective officers of election in each of the above-named precincts will validate their returns as correct, and will invalidate the result as shown by the said recount. Should this committee disagree with this deponent in the views herein expressed, this deponent avers on information and belief, which information he believes to be true, that at the said election a large number of votes, many more than sufficient to change said result, but the actual number thereof he is unable to state, at said election were actually cast for this deponent, and by mistake in the said several Boards of Election, in the Counties of Merced and Mariposa, were wrongfully counted for the said R. H. Ward.

Deponent avers that a recount of the vote of Merced and Mariposa Counties can only determine this contest, if the said recount as made by this committee is permitted to stand as the vote of Stanislaus County. Deponent respectfully asks the committee, if the said recount of the County of Stanislaus is by them permitted to stand, to permit this deponent:

First-To offer testimony tending to validate the return, as made by the officers of Stanislaus County, of the vote of that county.

Second-To procure and have recounted the votes of Merced and Mariposa, in order to determine the actual state of the vote of said district.

And deponent avers that if said request be granted it will clearly appear that he hath a majority of the legal votes of the said district..

EXHIBITS C AND C^.

STATE OF CALIFORNIA,

County of Stanislaus.}

JOHN TURNER, being duly sworn, says:

He is a citizen of the, United States, and has for more than five years last past resided in Empire Precinct, in said county. That Thomas Turner is the son of this affiant, of the age of thirty years, and a citizen of the United States, and resided in said Empire Precinct for over four years next preceding the month of October, A. D. eighteen hundred and seventy-five, and a qualified elector of said precinct. That at the general election held in said Empire Precinct on the first day of September, eighteen hundred and seventy-five, the said Thomas Turner, at the polling place in said precinct, delivered to the officers in charge of the ballot-box a ballot, in proper form, with the name of J. M. Montgomery and no other name thereon for State Senator, and saw said officers deposit his ballot in said ballot-box; and that said Thomas Turner, in the manner aforesaid, voted for said J. M. Montgomery for State Senator.

And affiant further says that he knows E. L. Cloer, who was on the first day of September, eighteen hundred and seventy-five, and for more than thirty days prior thereto, was a citizen of the United States and of the State of California, and in every way qualified to vote at the general election held in and for said Empire Precinct, on September first, eighteen hundred and seventy-five, and that said Cloer did vote at said election in said precinct. That said Cloer informed him before said election that he should vote for said J. M. Montgomery for State Senator, and after the election stated to affiant that he so voted. That said Cloer was enthusiastic on the subject of voting for said Montgomery for Senator as aforesaid, and affiant is perfectly satisfied that he did so vote at said election.

That said Thos. Turner and E. L. Cloer are now absent from this county, and therefore affiant makes this affidavit.

JOHN TURNER.

Subscribed and sworn to before me, December 20th, 1875.
GEO. W. SCHELL, County Judge.

STATE OF CALIFORNIA,

County of Sacramento.

J. M. Montgomery, being first duly sworn, on oath deposes and says that he is the deponent named in the foregoing affidavit; that he has heard the same read and knows the contents thereof; that it is true of his own knowledge, except as to matters herein stated on information and belief-as to those matters he believes it to be true J. M. MONTGOMERY.

Subscribed and sworn to before me, this 18th day of December, 1875
[SEAL.]
W. R. CANTWELL, Notary Public,
Sacramento County, Cal.

STATE OF CALIFORNIA,

us.}

County of Stanislaus. J

The undersigned, being severally duly sworn, each for himself deposes and says:

That he is a citizen of the United States and of the State of California, and a resident and duly qualified elector of Empire Precinct, in said County of Stanislaus. That he has resided in the State of California for more than one year and in the said Empire Precinct for more than thirty days next preceding the general election held in said County of Stanislaus on the first day of September, A. D. eighteen hundred and seventy-five, and that at and before said elec

11

}

JAMES DAVISON.

B. S. TURPIN.

affiant thus in the manner aforesaid voted for said J. M. Montgomery for State Senator, at said time and place. Subscribed and sworn to before me, this 19th day of December, 1875. JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, 1875. JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th December, A. D. 1875. JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A.D. 1875. JAMES BURNEY, Notary Public. Subscribed and sworn to before me, OLIVER P. KIMBERLY.

this 19th day of December, 1875. JAMES BURNEY, Notary Public. Subscribed and, sworn to before me, this 19th day of December, 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, 1875. JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A. D. 1875..

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A. D. 1875...

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 19th day of December, A. D. 1875.

JAMES BURNEY, Notary Public.

}

J. P. BAILEY.

S. B. BAILEY.

F. M. ELLIOTT.

G. M. DUEL.

GEO. W. HOPPER.

J. F. RINEHART.

JOHN TURNER.

NELSON LOVE.

HENRY VOIGHT.

J. R. DAGGETT.

J. B. GEORGE.

E. H. WOOTTEN.

Subscribed and sworn to before me, this 19th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 20th day of December, A. D.. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 20th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 20th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 20th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 20th day of December, A. D. 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 20th day of December, A. D. - 1875.

JAMES BURNEY, Notary Public. Subscribed and sworn to before me, this 20th day of December, A. D. 1875.

JAMES BURNEY, Notary Public.

STATE OF CALIFORNIA,

County of Stanislaus.

I, James Burney, a Notary Public, residing in said Stanislaus County, duly commissioned and qualified, do hereby certify that I have carefully read and caused to be read the foregoing and annexed affidavit to each of the persons subscribing the same, viz: James Davison, B. S. Turpin, J. P. Bailey, S. B. Bailey, Oliver P. Kimberly, F. M. Elliott, G. M. Duel, Geo. W. Hopper, J. F. Rinehart, John Turner, Nelson Love, Henry Voight, J. R. Daggett, J. B. George, Jacob S Wootten, E. H. Wootten, R. K. Whitmore, T. E. Tynan, John T Martin, R. C. Gilbert, S. A. Hawkins, R. Whitmore, J. W. Stetson J. S. Phillips, and John Service; that they severally swore and subscribed the same; and I further certify that I personally know them to be good, reputable, and substantial citizens and qualified voters of said Empire City Precinct, whose statements are entitled to full cre dence and belief.

[SEAL.]

To the Honorable the Senate Committee on Elections of the State of California.

GENTLEMEN: I was a candidate at the late election for the office of State Senator for the Fifth Senatorial District, composed of the Counties of Stanislaus, Mariposa, and Merced. After the result of the election was declared, I received information which I deemed reliable, that by mistake on the part of the officers of election at several of the precincts of the County of Stanislaus, ballots which had been cast for me had been counted for my opponent; that tickets on which the name of Montgomery was printed, and my name written with pencil, had been counted for Montgomery, and that a recount of the ballots of that county would show that I had received a sufficient number of legal votes to give me a majority of the votes of the district. I had no reason to believe that there had been any tampering with the returns, and was satisfied, from the character of the County Clerk of Stanislaus County, that while in his custody, nothing of the kind could have been done.

Under these circumstances, I deemed it a duty I owed to the party which nominated me, to contest the election of Mr. Montgomery, and have an examination of the ballots cast in Stanislaus County, to ascertain whether the information given me was correct. Α recount was had, which changed the result, as declared by the Board of Canvassers. But since the recount was made, facts have been made known to me by the affidavits of a number of respectable citizens of Stanislaus County, which cast grave suspicións upon the integrity of the ballots. My only object in making the contest was to ascertain the will of the majority of the legal voters of the district; and as I have no desire to occupy a position to which I was not fairly elected, and as my title to the position, should the Senate decide the contest in my favor, would not be free from doubt in my own mind, and in the minds of others, I therefore, most respectfully, withdraw from the contest, and ask the committee to take such steps in the premises as to them may seem just.

I am, gentlemen, very respectfully, etc.,

R. H. WARD.

JOHN J. TOWNE, being first duly sworn, deposes and says: That he is a citizen of the United States, and that for more than four years last past he has been, and yet is, a resident and duly qualified elector of Tuolumne City Precinct, as it on September first was, in the County of Stanislaus, in this State. That previous to the last general election he was appointed by the Board of Supervisors of said county, and at said election served as Inspector of Election at said Tuolumne

15

duly opened by them on the morning of said day, at the time and place prescribed, and said election was conducted by them in every respect as required by law. That on the evening of said day, at sundown, the polls were closed by them by proclamation, and that immediately thereafter, without adjournment, in the same room where said election had been held, they proceeded to canvass the contents of the said ballot-box, by first counting the ballots therein contained without opening them, and finding them to agree in number with the number of electors who had voted that day at said precinct, they commenced to count, the said W. F. Hudelson taking each ballot separately from said box, unfolding it, and after examining its contents handing the same to said T. E. Tynan, who thereupon carefully and in a loud and distinct tone of voice called off each name appearing upon such ballot, together with the name of the office opposite such names, Saml. Bailey and Wm. Brackett, who had been duly appointed as Clerks of said election, each keeping tally of each name as called, and after the entire names appearing upon each ballot were called off as aforesaid said T. E. Tynan would hand each ballot to the said Isaac Ripperdan, who immediately strung the same upon a string, and in the manner aforesaid the canvass was continued until each and every ballot contained in said box was counted; except that during a portion of the time said T. E. Tynan took the ballots from the box, unfolded and examined them, and said W. F. Hudelson called off the names. That at said election R. H. Ward and J. M. Montgomery were being voted for by the qualified electors of said precinct for the office of State Senator of the Fifth Senatorial District of this State, and that, as the result of said election at said precinct for the office of State Senator, said J. M. Montgomery received thirty-six votes and said R. H. Ward received eighteen votes; and that affiants each for himself say that if the ballots cast or purporting to have been cast at said precinct, at said election, show a different result than that above stated, that then said ballots have been fraudulently and illegally altered and changed by some person or persons to these affiants unknown, or others substituted therefor, since their official canvass as above stated. And said affiants further say that immediately after the completion of their canvass as aforesaid the returns of said election were made up, the packages sealed and given to said W. F. Hudelson, who had been selected by the Board of Election to convey said returns to the County Clerk of said county; and said W. F. Hudelson says that he kept said returns in his possession until the next day, when he delivered said packages containing said returns, unopened and unaltered, to said L. C. Branch, Esq., the County Clerk of said county; and said affiant further says that if any alteration appears in the ballots of said precinct, different from that herein before stated, which statement is correct, that then such alteration has been made subsequent to the delivery of said ballots and returns by this affiant to the County Clerk as aforesaid. T. E. TYNAN. ISAAC RIPPERDAN, W. F. HUDELSON.

- “

Subscribed and sworn to before me, this 31st day of December, A. D.

1875. [SEAL.]