[Cannon's Precedents, Volume 6]
[Chapter 163 - Pleadings in Contested Elections]
[From the U.S. Government Publishing Office, www.gpo.gov]
PLEADINGS IN CONTESTED ELECTIONS.
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1. Time of serving notice. Sections 97-100.
2. Nature of notice. Sections 101, 102.
3. Attitude of House as to other informalities. Section 103.
4. Foundation required for Senate investigations as to bribery,
etc. Sections 104-109.
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97. The North Carolina election case of Smith v. Webb in the Sixty-
first Congress.
As to time within which notice was served.
Specifying particulars in which notice of contest was deficient.
On June 23, 1910,\2\ Mr. James M. Miller, of Kansas, from the
Committee on Elections No. 2, submitted the report of the committee in
the North Carolina case of John A. Smith v. Edwin Y. Webb.
The charges made by the contestant were general in character,
alleging that, votes were cast illegally and by those not qualified as
electors, and that in some parts of the district the election laws were
practically suspended.
Little evidence was submitted in support of contestant's contentions
and the committee were unanimous in declaring that there was nothing in
the evidence to justify any of the charges.
There was some question as to whether the notice of contest was
served on contestee within 30 days from the date of the determination
of the result of the election by the board of State canvassers as
required by law, but the committee decided that, while the evidence
presented was inconclusive, in their opinion the notice was within the
time required.
The committee held, however, that even if in time the notice was
deficient in that it failed to allege that claimant was a candidate for
Congress, that he was a voter in the district, or that he had any
interest in the result of the election.
Accordingly the committee recommended the following resolutions:
Resolved, That John A. Smith was not elected to membership in the
House of Representatives of the United States from the Ninth
Congressional District of North Carolina in the Sixty-first Congress,
and is not entitled to a seat therein.
Resolved, That Edwin Y. Webb was elected to membership in the House
of Representatives of the United States from the Ninth Congressional
District of North Carolina in the Sixty-first Congress, and is entitled
to retain his seat therein.
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\1\ Supplementary to Chapter XXII.
\2\ Second session Sixty-first Congress, House Report No. 1702;
Journal, p. 827; Record, p. 8833; Moores' Digest, p. 50.
Sec. 98
The resolutions were ageed to without debate or division.
98. The Pennsylvania election case of McLean v. Bowman in the Sixty-
second Congress.
The statute limiting the time within which notice of contest of
election may be served is merely directory and may be disregarded for
cause.
No statute can interfere with the provision of the Constitution
making each House of Congress the judge of the qualification and
election of its own Members.
Having permitted without objection the reference of a contest to a
committee of the House, and having taken testimony and presented
argument on the merits of the contest, the sitting Member was held to
have waived thereby any right to object to irregularities in the filing
of the notice of contest.
While failure of a contestant to comply with statutory requirements
in the filing of a notice of contest does not necessarily preclude
consideration by the House, such contestant may not become the
beneficiary of his own negligence by succeeding to the seat so vacated.
Questions relating to the legality of a nomination are properly
tested under the laws and in the courts of the State rather than in the
House.
Interpretation of the corrupt practices act of Pennsylvania.
On August 13, 1912,\1\ Mr. Timothy T. Ansberry, of Ohio, from the
Committee on Elections No. 1, submitted the report in the Pennsylvania
case of George R. McLean v. Charles C. Bowman.
The returning board of the district reported on November 12, 1910,
that Bowman had received 13,662 votes on the Republican ticket and
McLean had received 13,844 votes on the Democratic ticket, but Bowman
had also received 722 votes on the Prohibition ticket, giving him on
the face of the returns a majority of 550 votes.
At the outset a question was raised as to the regularity of the
notice of contest.
Section 105 of the Revised Statutes of the State of Pennsylvania
provided:
When 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 officers or board of officers 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 on which he relies in the contest.
The notice of contest which was served on January 11, 1911, closes
with this statement:
This notice would have been given at an earlier date had I not been
ill and prevented by the advice and compulsion of my physician from
taking part in any professional business or political affairs from the
31st of October, 1910, until the 2d day of January, 1911.
The minority views, submitted, by Mr. S. F. Prouty, of Iowa, say:
The result of this election was legally and officially determined
November 12, 1910, and the contestant was advised of the result at that
time. According to law, therefore, he should have given
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\1\ Second session Sixty-second Congress, House Report No. 1182;
Journal, p. 955; Record, p. 10850.
Sec. 98
notice of this contest on or before the 12th day of December, 1910. The
notice was, in fact, given on the 14th day of January, 1911. It will
thus be observed that the notice was not served on contestee until 32
days after the time provided by law for the instituting of contest
proceedings.
This statute above quoted is expressly made a rule of the Committee
on Elections and is and should be binding upon the committee. It is,
therefore, the contention of the minority that the giving of this
notice is jurisdictional and that the committee has no jurisdiction to
determine any question unless this notice has been given.
The minority further say:
There are very many cases cited in Hinds' Precedents confirming the
doctrine that where the rule established by the law of 1851 was not
applicable or grossly inequitable, the House had the power to prescribe
different rules and regulations for the penalty. There are several
cases where the parties have failed to give notice within the tame
prescribed by the statutes where the House, for equitable reasons, has
fixed another time or mode in which notice might be given, but we
believe that there is not a ewe cited in the precedents where a
committee had reported the unseating of the Member where the notice was
not given within the tame provided by the statutes. We can see that if
the contestant had been for any good reason prevented from giving
notice in this case, he might have applied to the House for permission
to give notice and that the House had the power to grant additional or
different time, but no such request as that has been made of the House.
The contestant filed his notice 32 days too late and took his testimony
out of order, all under protest by the contestee, and we insist that
under the precedents the committee had no power or authority to
consider the case. The laws of Congress are certainly binding upon
Congress until set aside by Congress its&, but the minority contends
that even though the contestant was now presenting to the House the
question as to whether or not he was entitled to further and additional
time in which to give notice his showing does not entitle him to the
application of the equitable rule. There is no showing in this record
that would excuse the contestant from giving the notice within the time
prescribed by the statutes. Certainly the House would not wish to
establish a precedent that would warrant anyone in coming in any time
he pleased and filing a contest. This would be unfair. No one would
know when his seat was secure. Failure to file a notice might lull the
sitting Member into such indifference as would allow the testimony by
which he could defend his ease to be lost or destroyed. The rule
established by the statute is a just one, and this House ought to be
slow in establishing another rule.
The minority therefore contend:
Our contention on this phase of the case is simply this:
First, that the contestant did not give notice, as prescribed by the
statutes; second, that he did not make application to the House for
another or different rule for the conduct of his contest; third, that
he had no equitable or just ground on which he could have appealed to
the House for the right to institute a contest after the expiration of
the time provided by the statute. We do not contend that the House has
not the power to expel its Members for any or no reason, but the power
to expel must not be confused with the right of a party to contest the
mat of a sitting Member. They are based upon entirely different
provisions of the Constitution and require entirely different
procedure. To expel a Member requires I's concurrence of two-thirds''
(see sec. 5, Art. 1), but to determine a contested-election case only
requires a majority. While we concede that the House might now, if it
saw fit, expel Mr. Bowman for any reason it pleased, or for no reason,
if a two-thirds vote could be commanded, we insist that there is no
contested-election caw pending before it, and therefore we think that
the case should be dismissed, and we so recommend.
The majority, however, hold:
Under a strict construction of this section of the statute the
committee would have dismissed the case, but the statute is in fact
merely directory, and was intended to promote the prompt institution of
contests and to establish a wholesome rule not to be departed from
except for cause.
Sec. 98
Moreover, no statute can interfere with the provision of the United
States Constitution making each House of Congress the judge of the
qualification and election of its own Members. In this case the
contestee permitted without objection in the House the reference of the
matter of this contest to this committee for hearing, and after having
taken testimony and presented argument on the merits he is in no
position to object to such a consideration of the record as will
determine in the public interest whether or not he is entitled to a
seat in this House.
But the majority also hold:
The committee is not, however, satisfied that the reasons alleged by
the contestant are sufficient entirely to excuse him from serving upon
the contestee his notice of contest within 30 days from the 12th day of
November, 1910, and not believing that he should be a beneficiary of
his own negligence under the findings of the committee, they have not
considered the case from the viewpoint of reporting a resolution to
seat the contestant.
The first point urged by the contestant is that the nomination of the
contestee as a candidate of the Prohibition Party, by the
substitution.of his name for that of the regularly nominated
Prohibition candidate, was brought about in contravention of the rules
of the Prohibition Party and of the laws of the State of Pennsylvania.
The point is thus disposed of:
With regard to the legality of the substituted nomination of the
contestee by the Prohibition Party the committee has felt much doubt.
The testimony shows much maneuvering by the contestee to get one
Robinson, the original Prohibition candidate, off the ticket. The
legality of the substitution should, however, have been tested by
filing objections to the nomination papers with the proper official
under the laws of Pennsylvania and the contest carried, if necessary,
to the courts of that State. That the object of the contestee in
securing the Prohibition nomination was to advance that party's
interest is nowhere shown. The presence of his name in two columns on
the ballot gave opportunity for illegal counting of votes for him
beyond doubt, and the fact that Larkin, Prohibition candidate for
governor of Pennsylvania received but 242 votes in the district while
contestee received 720 is a very suspicious circumstance, but with the
legality of the nomination unassailed in the proper tribunal, and in
the absence of specific proof of fraudulent counting of these votes,
they can not be rejected.
As to allegations of fraud:
Independently of the right of the contestant to claim a seat in this
House, the testimony in the case does show such fraud and corruption on
the part of the contestee, or his agents, at the election on November
8, 1910, as to compel the statement that there was no such free and
untrammeled choice by the voters as is required to constitute a fair
and legal election.
The corrupt-practices act of Pennsylvania, approved March 5, 1906,
requires the candidate to file a statement of moneys expended by him in
the campaign, and if he had a campaign manager that manager is
compelled to file a detailed report with the proper officer of the
county. The act specifically sets forth all the legal purposes for
which money may be spent by a candidate or his manager or a party
organization.
The majority report finds:
The expense account filed by the contestee under this act on the 3d
day of December, 1910, shows expenditures of $7,194.40 for the general
election, and among other things contains the statement that said
Bowman had paid no money to anyone else save Jonathan R. Davis,
chairman, and that said moneys were paid to the said Jonathan R. Davis
between October and November, or approximately within that period.
This Jonathan R. Davis was the chairman of the Republican county
committee in 1910, as well as the manager of the campaign of the
contestee. and his statement of receipts and expendi-
Sec. 99
tures filed immediately after the election recites that he received and
expended the sum of $8,984.84. The examination of both Davis and the
contestee of contested election case, as shown by the record,
demonstrates that both of their filed statements of expenses were
false, and it is conclusively proved by the testimony of the contestee
himself that instead of expending $7,194.40 in the election he, as a
matter of fact, expended $9,272.70.
That one might find it impossible to make an absolutely accurate
statement of campaign expenditures to the extent of $9,000 is possibly
true, but there are items which the contestee failed to include in his
statement, so large in amount that when considered in connection with
the fact that the expenditures of these sums were sought to be
concealed by erasures on check stubs and alteration of memoranda, lead
irresistibly to the conclusion that the contestee in making out his
statement of expenses designedly sought to conceal the use of large sum
of money which he had spent in connection with his campaign.
The majority accordingly recommended the adoption of the resolution:
Resolved, That Charles C. Bowman was not elected a Representative in
the Sixty-second Congress from the eleventh district of Pennsylvania,
and is not entitled to a seat therein.
On August 17, 1912,\1\ the report was called up in the House, but at
the request of the contestee, after brief debate, was by unanimous
consent postponed until the following session.
It was debated at length on December 10 and 12, 1912.\2\ On the
latter day the following resolution offered by Mr. Prouty was disagreed
to, yeas 125, nays 147:
Resolved, That the case of George B. McLean against Charles C.
Bowman, from the eleventh congressional district of Pennsylvania, be
dismissed for want of jurisdiction because said alleged contestant gave
no notice of contest within the time or in the manner prescribed by
law, and because he has not asked or secured the consent of this House
or of the committee for proceeding in any other manner than that
prescribed by law and has not shown any equitable excuse for his
failure to give the notice prescribed by section 105 of the Revised
Statutes.
The question then recurred on the committee resolution, which was
agreed to, yeas 153, nays 118.
Mr. A. Mitchell Palmer, of Pennsylvania, then offered the following
resolution, which was rejected, yeas 88, nays 183:
Resolved, That George R. McLean, the contestant, was elected a
Representative in the Sixty-second Congress from the eleventh district
of Pennsylvania and is entitled to a seat therein.
99. The Pennsylvania election case of Wise v. Crago in the Sixty-
second Congress.
Where contestant had failed to serve notice on contestee within time
required by law the House declined to extend time because of lack of
diligence.
Where allegations of fraud, even if sustained, would not affect
sufficient votes to change the result, the House refused to entertain a
proposed contest.
On August 20, 1912,\3\ Mr. Thomas G. Patten, of New York, from the
Committee on Elections No. 2, submitted the report in the Pennsylvania
case of Jesse H. Wise v. Thomas S. Crago.
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\1\ Record, p. 11193.
\2\ Third session Sixty-second Congress, Journal, p. 52; Record, p.
541; Moores' Digest, p. 54.
\3\ Second session Sixty-second Congress, House Report No. 1230;
Journal, p. 994; Record, p. 1139; Moores' Digest, p. 59.
Sec. 100
The election was held on November 8, 1910, and the canvassing board
duly made its return within 10 days thereafter.
In April, 1911, the contestant filed a notice of contest with the
Clerk of the House of Representatives, but failed to serve a copy of
the notice on the contestee.
On December 4, 1911,\1\ Mr. A. Mitchell Palmer, of Pennsylvania,
introduced the following resolution which was referred to the Committee
on Elections No. 1:
Resolved, That Jesse H. Wise, contesting the right of the Honorable
Thomas S. Crago to a seat in this House as a representative from the
twenty-third district of Pennsylvania, be, and he is hereby, required
to serve upon the said Crago, within eight days after the passage of
this resolution, a particular statement of the grounds of said contest;
and that the said Crago be, and he is hereby, required to serve upon
said Wise his answer thereto in eight days thereafter; and that both
parties be allowed such time for the taking of testimony in support of
their several allegations and denials as is provided by the act of
February nineteenth, eighteen hundred and fifty-one.
The committee reported:
Contestant claimed that bribery and intimidation had been employed by
the contestee to encompass the defeat of the contestant, naming the
precincts affected by these violations of the election laws. The vote
in the various precincts so affected was Crago, 5,666; Wise, 2,661; so
that if the contestant was permitted to serve notice of contest on the
said contestee under the terms of the resolution and could prove to the
satisfaction of the committee the truth of his allegations, the purging
of the vote that would follow under the application of the ordinary
rule would still leave the contestee a majority of 1,766 votes.
The committee, however, reached the conclusion that the charges made
by the contestant in support of his position were too general, vague,
and indefinite, upon which to predicate a contest, particularly since
the contestant, without any very strong reason, had permitted so long a
time to elapse before starting his contest. The committee therefore
recommends that the resolution be not agreed to.
The recommendation of the committee was Weed to without debate or
record vote.
100. The Missouri case of Reeves v. Bland in the Sixty-sixth
Congress.
The contestant having failed to serve notice of contest within the
time required by law, the committee deemed it unnecessary to take
action thereon.
Instance wherein a Federal court issued a temporary restraining order
enjoining contestant from further proceeding in an election case.
A report on an election case with no recommendation for action was
not considered by the House.
On November 7, 1919,\2\ Mr. Frederick W. Dallinger, of Massachusetts,
from the Committee on Elections No. 1, submitted the report of the
committee on the memorial of Albert L. Reeves, charging fraud in the
election of William T. Bland from the fifth congressional district of
Missouri.
William T. Bland had received a vote of 31,571 according to the
returns, and Albert L. Reeves a vote of 18,550. The result of the
election was duly certified by the secretary of State on November 18,
1918, but notice of contest was not filed until January 6, 1919, 18
days after the expiration of the 30-day period prescribed by law.
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\1\ Journal, p. 10; Record, p. 13.
\2\ First session Sixty-sixth Congress; House Report No. 119;
Journal, p. 567, Record, P. 8111.
Sec. 100
Upon receipt of the notice the sitting Member filed a petition in the
circuit court of Jackson County, Mo., praying for an order enjoining
Albert L. Reeves from taking any steps as contestant pursuant to this
notice. The case was transferred to the United States District Court
for the Western District of Missouri, which, on February 6, 1919,
denied the injunction.
An appeal was taken to the United States Circuit Court of Appeals of
the Eighth Circuit, which, on February 10, 1919, granted a temporary
restraining order enjoining further proceeding in the contest.
The memorialist asserts that delay in service of notice was due to
the studied absence of the sitting Member from the district and State
during--
practically the entire 30-day period immediately following the issuance
of the certificate of election; that he had caused his office to be
closed and his whereabouts concealed from the contestant until after
the time prescribed by law within which to serve such notice had
expired and until 18 days thereafter, to wit, January 6, 1919, upon
which day the contestant, his attorneys and agents, located the said
William T. Bland at San Diego, Calif., and then and there served upon
him a copy of said notice of contest and complaint.
The committee after investigation reported:
William T. Bland remained at his home in Kansas City from November 5,
1918, until November 27, when he went to Memphis, Tenn., to visit his
son who was a pilot in the Aviation Service of the Government. On
December 3 he went to Washington, D. C., and from there returned to
Kansas City by way of Memphis, reaching home on December 13, where he
remained until December 23, when he left for California on account of
his wife's health. During all the time he was away from home he was in
constant touch with his office, No. 608 Ridge Arcade, and all important
mail was forwarded to him from there. There was no evidence of any
attempt on his part to conceal his whereabouts or to prevent the
service upon him of any legal paper. Moreover, during the entire period
from November 19, 1918, to December 19, 1918, he had no intimation that
his election was to be contested.
In view of this finding the committee were unanimously of the opinion
that the delay in serving notice of contest was without excuse, and
reported as follows:
A mass of ex parte testimony was before your committee indicating
extensive and widespread frauds in many of the wards in Kansas City at
the last State election and your committee has been strongly urged by
the newspaper press, by various nonpartisan civic bodies and by
numerous citizens of Kansas City of both political parties to report a
resolution providing for an investigation de novo of the election in
the fifth Missouri district. If the facts alleged in the memorial were
true and the petitioner, Albert L. Reeves, had been prevented from
serving the notice required by law by the action of the sitting Member,
Mr. Bland, your committee might have seen its way clear to report a
resolution for an investigation of the conduct of this election.
It is to be regretted that the plain provisions of the statute
regulating the election contests were not complied with by the
petitioner in this case. The committee is earnestly desirous of
preventing so far as it is possible for it to do, the existence and
repetition of any such fraud and wanton disregard of law as the ex
parte testimony in this case indicates was practiced in some of the
Kansas City wards at the election on November 5, 1918.
When brought before the committee, within the time and in the manner
provided by law, the committee will always endeavor to prevent any one
from enjoying the fruits of such wrong. Under the circumstances,
however, although viewing with the deepest concern the charges of
wholesale frauds practiced at the last election in Kansas City, we do
not feel justified in granting the prayer in the memorial and therefore
report that no action is necessary thereon.
Sec. 101
On November 11, 1919,\1\ the Speaker \2\ said:
There is on the calendar by accident a report from the investigation
of the election in the fifth Missouri district that contains a report
that required no action. The Chair thinks it is improperly on the
calendar, and, without objection, it will be stricken from the calendar
and laid on the table.
There was no objection.
The report was accordingly stricken from the calendar, Mr. Bland, of
course, retaining the seat.
101. The Tennessee election case of Smith v. Massey in the Sixty-
first Congress.
Contestant having failed to serve proper notice of contest upon
contestee, the case was dismissed.
No evidence having been produced to justify a contest, the committee
recommended that no fees be allowed.
On December 6, 1910, the following communication was laid before the
House by the Speaker and referred to the Committee on Elections No. 2.
Bristol, Tenn., November 28, 1910.
The Clerk of United States House of Representatives,
Washington, D.C.
Dear Sir: I hereby very respectfully beg to inform you of my
intention to contest the congressional election held on November 8 for
the purpose of electing a Representative in Congress from the first
Tennessee congressional district, and in which it is claimed that Dr.
Z. D. Massey and the Ron. Sam R. Sells were elected, the former for the
``short'' or ``unexpired'' term of the late Congressman W.P. Brownlow
and the latter for the regular term.
On the 19th instant I sent written notice of my intention to contest
said election to both the above men, in which I set forth the reasons
for entering contest.
Begging to request you to take whatever action is necessary in the
matter to prevent Dr. Massey from taking a seat in Congress when that
body convenes next Monday, I beg to remain,
Very respectfully,
James Edgar Smith.
On March 3, 1911,\3\ Mr. James M. Miller, of Kansas, from the
committee submitted a report in the case.
The election was for an unexpired term and to fill a vacancy caused
by the death of Hon. Walter P. Brownlow.
The contestant claimed to have sent a notice of contest to the
sitting Member, alleging use of money to influence voters, unfair
treatment by boards of election commissioners, the omission of
contestant's name from official ballots, and misrepresentations
misleading to voters.
The committee found no evidence that any notice of contest had been
received by the contestee, and held that even had it been served in
form as alleged, it was neither legal nor proper notice as required by
the statutes governing contested election cases, in that it failed to
comply with the provisions of sections 105, 106, and 107 of the Revised
Statutes of the United States.
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\1\ Record, p. 8350.
\2\ Frederick H. Gillett, of Massachusetts, Speaker.
\3\ Third session Sixty-first Congress, House Report No. 2290;
Record, p. 4215; Moores' Digest, p. 50.
Sec. 102
The report further shows that no evidence of any kind was submitted
to the committee in support of any of the allegations in the alleged
notice of contest.
In conclusion the report says:
While the committee does not care to render any opinion upon the
merits of this case in view of the fact that no proper notice of
contest was given, yet the committee feels that this is a case where it
ought to express its disapproval of the institution of a contest where
on the face of the entire record there were no grounds for the same.
The committee, therefore, recommends that this case be dismissed for
want of proper notice, and at the same time expresses the opinion that
in a case such as this there ought not to be any fees allowed.
The House, without debate, unanimously agreed to the report.
102. The New York election case of Cantor v. Siegel in the Sixty-
fourth Congress.
Contestant may not impeach the title of sitting Member by general
averments of error, fraud, bribery, or coercion, but must specifically
set forth in notice of contest the grounds upon which the contest is
brought.
The committee have entire jurisdiction over questions of pleading and
may admit amendments if occasion requires.
A recount of any part of the ballots will not be ordered unless all
ballots cast in the election are available for recount if desired.
On January 22, 1917,\1\ Mr. Lewis L. Morgan, of Louisiana, from the
Committee on Elections No. 3, submitted the report in the New York case
of Jacob A. Cantor v. Isaac Siegel.
The sitting Member had been returned by an official majority of 80
votes. The contestant in his notice of contest made general averments
of error, fraud, bribery and coercion, and contestee submitted that the
notice was so general and insufficient that it was impossible to
surmise the nature of the issues sought to be raised.
The committee sustained the contention of the contestee:
Your committee are of the opinion that under no circumstances should
the contestant be permitted to impeach the title of the returned Member
by general averments of error, fraud, bribery, and coercion. The
grounds upon which a contestant relies in any given case must be
specifically set forth in the notice of contest. If the returned Member
is not sufficiently apprised of the nature of the case he is to meet,
he can not be expected to intelligently prepare his defense. We are
perfectly willing to liberally construe the law; nevertheless, we think
it is always unwise and inadvisable to encourage flagnant violations of
its requirements.
Your committee were clearly of the opinion that the notice in this
case was insufficient and might have been justified in refusing to
consider the evidence introduced in support of allegations so general;
but feeling that the question of pleading was entirely within the
committee's control, and that the notice could be amended, if the real
merits of the case should so require, the committee concluded to
examine the testimony disclosed by the record.
The contestant did, however, specially charge the counting of void
ballots and the rejection of legal ballots in certain districts and
requested an inspection of the ballots in those precincts.
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\1\ Second session Sixty-fourth Congress, House Report No. 1325;
Journal, p. 146; Record, p. 1756; Moores' Digest, p. 92.
Sec. 103
The committee found:
Unfortunately, 7 of the 41 boxes were destroyed, because there was no
effort made by any of the interested parties for their preservation.
However, the committee do not impute to either contestant or the
contestee responsibility therefor. But inasmuch as the contestant has
vigorously attacked and undertaken to disparage the correctness as well
as the reliability of the returns made by the precinct officials, your
committee feel that they can not, in good conscience, accept as true
the returns relating to the 7 boxes and wholly disregard and discredit
the official returns of the other 34 boxes. To hold that the ballots in
the 7 boxes were correctly counted and returned and that the ballots in
the remaining 34 boxes were incorrectly canvassed, would be untenable,
indefensible, and unprecedented under the peculiar circumstances of the
ease, and your committee are reluctant to take any such anomalous
position.
Your committee, after having examined the facts and the law
applicable thereto, with care and attention are of opinion that the
destruction of a material portion of the official ballots voted at this
election would make it now impossible for them to reach a just and
satisfactory conclusion as to the result of the election even if they
were to undertake to inspect and review the ballots in controversy, and
they do therefore recommend the adoption of the following resolutions:
``Resolved, That Jacob A. Cantor was not elected a Representative to
the Sixty-fourth Congress from the twentieth congressional district of
New York.
``Resolved, That Isaac Siegel was elected a Representative to the
Sixty-fourth Congress from the twentieth congressional district of New
York, and he is entitled to retain his seat therein.''
The resolutions recommended by the committee were unanimously agreed
to without division.
103. The Illinois election case of Golombiewsk v. Rainey in the
Sixty-seventh Congress.
Contestant failing to comply with rules adopted by committee and
ignoring inquiries propounded by the committee, was held not to have
sustained charges made in notice of contest.
Reaffirmation of findings in other cases submitted simultaneously to
the Committee on Elections.
On February 1, 1923, \1\ Mr. Robert Luce, of Massachusetts, from the
Committee on Elections No. 2, submitted the report in the Illinois case
of John Golombiewski v. John W. Rainey.
The official return in this case was:
John W. Rainey 23,230
John Golombiewski 21,546
Charles Beranek 2,753
By a recount ordered on application of the contestant, under the laws
of the State of Illinois, the contestant gained 321 votes while the
sitting Member lost 1,008 votes, reducing the latter's majority to 676
votes.
The contestant rested his case upon the allegation that in 16
specified precincts the fraudulent marking of ballots after they had
been cast indicated a degree of corruption warranting the exclusion of
all the ballots cast in those precincts.
He failed, however, to comply with the rules adopted by the committee
in that his abstract of testimony did not cite specific testimony
relied upon in support of his contention. A tabulation was submitted
listing 179 ballots challenged, but
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\1\ Fourth session Sixty-seventh Congress, House Report No. 1500.
Sec. 104
the committee held the percentage of ballots so challenged was too
small to indicate a degree of corruption sufficient, even if conceded,
to warrant total exclusion of a poll.
In stating their conclusions the committee refer to two other cases,
submitted simultaneously, as follows:
This is one of three cases from the city of Chicago which were
referred respectively to your three committees on elections. The issues
involved and the circumstances are much the same in all three case. The
report of the Committee on Elections No. 3 in the case of Gartenstein
v. Sabath, submitted December 20, last, and the report of the Committee
on Elections No. 1 in the case of Partillo v. Kunz, submitted January
15 last, contain discussion of the effect of violating statutory
requirements, of incomplete recounts, and of the evidence that should
be offered under conditions such as here prevailed, together with
analysis of testimony and citation of precedents, all of which apply as
well to the present case, and to them rehearse here would be needless
repetition. It should, however, be added that in this counsel for the
contestant has failed to proceed beyond the filing of the required
documents, repeated inquiries from your committee as to whether he
desired a hearing having been wholly ignored.
The committee accordingly recommend the adoption of the usual
resolutions.
On March 4, 1923, \1\ the resolutions were agreed to by the House
without debate or division.
104. The Senate case of William Lorimer, of Illinois, in the Sixty-
first Congress.
A quorum of each house being present at joint meeting of legislature
for election of Senator, a majority of those in attendance elects, and
a majority of all members of the legislature is not required.
In order to invalidate election of Senator on charge of bribery, it
must be shown: (1) That the person elected participated in the bribery
or sanctioned it. (2) That by such bribery enough votes were obtained
to change the result of the election.
On June 18, 1909, \2\ in the Senate, William Lorimer, elected a
Senator by the legislature of Illinois, took the oath of office without
objection.
More than a year thereafter, on May 28, 1910, \3\ Mr. Lorimer rose to
a question of personal privilege and said in part:
On the 30th day of April last (1910) the Chicago Tribune published a
story over the signature of Charles A. White, a member of the Illinois
Legislature, in which it was alleged that I secured my seat in the
United States Senate through bribery and corruption. I have made this
statement because I feel it my duty to acquaint the Senate with the
facts and because I would not feel justified in participating in the
deliberations of this body unless I had laid before it the facts
concerning this conspiracy.
Therefore, Mr. President, I offer the following resolution and ask
unanimous consent for its immediate consideration:
``Resolved, That the Committee on Privileges and Elections be
directed to examine the allegations recently made in the public press
charging that bribery and corruption were practiced in the election of
William Lorimer to a seat in the United States Senate and to ascertain
the facts in connection with these charges, and report as early as
possible; and for that purpose the committee shall have authority to
send for persons and papers, to employ a stenographer and such other
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\1\ Journal, p. 2; Record, p. 5473.
\2\ First session Sixiy-first Congress, Record, p. 3437.
\3\ Second session Sixty-first Congress, Record, p. 7019.
Sec. 104
additional help as it shall deem necessary; and the committee is
authorized to act through a subcommittee; and its expense shall be paid
from the contingent fund of the Senate.''
The resolution was referred to the Committee on Privileges and
Elections.
Subsequently, and on June 7, 1910, there was presented to the Senate
a memorial signed by Clifford W. Barnes, in which the memorialist set
forth in substance that he was president of the Legislative Voters'
League of Illinois; that on May 2, 1910, pursuant to an order entered
in the criminal court of Cook County, a special grand jury was duly
convened to investigate and consider, among other things, certain
alleged charges of legislative bribery in the Forty-sixth General
Assembly of the State of Illinois; that prior to said 2d day of May one
Charles A. White, a member of said general assembly, submitted to the
Chicago Tribune a confession in which there were contained and embodied
certain alleged facts and circumstances relating to said legislative
bribery; that such confession was, in substance, printed, published,
and circulated in the Chicago Tribune on April 30, 1910; that on May 2,
1910, the grand jury heard the testimony of White, as well as the
testimony of H. J. C. Beckemeyer and Michael S. Link, members of the
general assembly, from which testimony it was charged that each had
received $1,000 for casting his vote on May 26, 1909, for William
Lorimer for United States Senator, and that based upon this testimony
the grand jury, on May 6, 1910, returned an indictment against one Lee
O'Neil Browne, the minority leader of the House of Representatives of
Illinois, which indictment is set forth in the record, and that the
statement of Mr. Barnes was made upon his best knowledge, information,
and belief.
On June 20 \1\ the Senate agreed to the following resolution reported
by the Committee on Privileges and Elections:
Resolved, That the Committee on Privileges and Elections of the
Senate, or any subcommittee thereof, be authorized and directed to
investigate certain charges against William Lorimer, a Senator from the
State of Illinois, and to report to the Senate whether in the election
of said William Lorimer as a Senator of the United States from said
State of Illinois there were used or employed corrupt methods or
practices; that said committee or subcommittee be authorized to sit
during the sessions of the Senate and during any recess of the Senate
or of Congress, to hold its sessions at such place or places as it
shall deem most convenient for the purposes of the investigation, to
employ a stenographer, to send for persons and papers, and to
administer oaths; and that the expenses of the inquiry shall be paid
from the contingent fund of the Senate upon vouchers to be approved by
the chairman of the committee.
On December 21, 1910,\2\ Mr. Julius C. Burrows, of Michigan, from the
Committee on Privileges and Elections, submitted the report of the
majority of the committee.
A preliminary question as to whether a majority of all members
elected to each house of the State legislature is required to elect a
Senator or whether a majority of all votes cast in the joint assembly
is sufficient to elect, is thus desposed of:
It appears from the evidence that Mr. Lorimer was elected a Senator
from the State of Illinois on the 26th day of May 1909, by a joint
assembly of the two houses of the general assembly of the
-----------------------------------------------------------------------
\1\ Record, p. 8501.
\2\ Third session, Sixty-first Congress, Record, p. 547.
Sec. 104
State of Illinois, receiving 108 votes out of 202 that were cast for
the several candidates for that office, as follows:
Albert J. Hopkins 70
William Lorimer 108
Lawrence B. Stringer 24
votes required to elect.
The question is raised by counsel whether the language of the statute
regulating the election of United States Senators requires that in
order to elect a Senator the person elected must receive a majority of
the votes of all the members elected to each house of the legislature,
or whether it is sufficient if one person receives a majority of all
the votes cast in the joint assembly, ``a majority of all the members
elected to both houses being present and voting.'' This question seems
to have been decided by the Senate in the case of Lapham, and Miller
(Senate Election Cases, 697). In that case it was held that a majority
of a quorum of each house is sufficient to elect, and in that decision
the committee concur.
When this proposition was debated in the Senate, Mr. Theodore E.
Burton, of Ohio, said.\1\
The requirements of the act of 1866 are perfectly clear.
Each house of the legislature must meet separately on the second
Tuesday after convening and organization, and vote for a Senator. The
statute is silent as to what constitutes a quorum in the respective
houses.
It is conceivable, and even probable, that the law or constitution of
a State might provide that more or less than half, that two-thirds or
one-third, for example might be regarded as a quorum for the
transaction of business and that a majority of such quorum, made up of
a less number or a greater number than a majority of the respective
houses, could elect a Senator; that is, if both houses concur in the
election. There is, however, no such uncertainty as regards the joint
assembly. If no one has received a majority in both houses, or, if
either house has failed to take proceedings as required by law, the
joint assembly shall on the following day proceed to choose by a viva
voce vote of each member present a person for Senator. The person who
receives a majority of all the votes of the joint assembly, a majority
of all the members elected to both houses being present and voting,
shall be declared duly elected.
It is absolutely unnecessary to engage in refinements in regard to
this statute. It means that a majority of the members elect to both
houses must be present and it means also that the successful candidate
must receive a majority of those present and voting.
Recurring to the main question at issue, the majority summarize
Senate precedents in such cases in the following rule:
In a number of cases that have been before the Senate of the United
States it has been held that to invalidate the election of a Senator on
account of bribery it must be made to appear either--
(1) That the person elected participated in one or more acts of
bribery or attempted bribery, or sanctioned or encouraged the same; or
(2) That by bribery or corrupt practices enough votes were obtained
for him to change the result of the election.
From this ruling Mr. Albert B. Cummins, of Iowa, in debate in the
Senate, dissented, saying:
The decision of this particular case is of great moment to the Senate
and to the people, but the question whether Mr. Lorimer shall be
permitted to retain his seat in the Senate of the United States shrinks
into insignificance when compared with the consequences of the rule
relating to bribery, first
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\1\ Record, p. 1892.
Sec. 105
announced in the debate by the senior Senator from South Dakota,
approved at once by the junior Senator from Texas, and insisted upon
yesterday by the senior Senator from Kentucky. They ask the Senate to
solemnly declare that the law of the land is that if it is shown that a
certain number of bribed votes were given to the successful candidate
in a senatorial election and the persons who cast these votes are
identified with the bribed votes, the bribed votes must not only be
deducted from the number received by the successful candidate, but also
from the total number of votes cast, and that if, upon such a
readjustment the candidate has a majority of the remaining votes, he is
under all circumstances duly and legally elected.
To apply the rule so announced to the present case means this, that
conceding that William Lorimer received seven corrupted votes, his
election, was nevertheless, legal and valid. To apply it more
analytically to the controversy before us, it appears thus: There were
202 votes cast in the Joint Assembly of the Illinois Legislature. To
elect a senator it was necessary that one person should receive 102
votes. Mr. Lorimer, in fact, received 108 votes. Deducting the seven
corrupted votes from his total leaves him 101; less than a majority of
the total number of votes cast. The rule contended for by these
Senators requires that these seven votes shall be also deducted from
the total number leaving 195 votes. Inasmuch as 101 votes are a
majority of 195 votes, the conclusion of these Senators is that Mr.
Lorimer would be fairly and legally elected to the office.
This is the most alarming and dangerous proposition ever made in the
Senate of the United States. If it were adopted it would be the most
cordial invitation ever extended to dishonesty, crime, and corruption.
If it were established it would be the most effective weapon ever
forged for the use of the wrongdoer. If we assent to it we proclaim to
the world that the Senate of the United States welcomes to its
membership men whose friends have bought their title to a seat in this
body.
These consequences, Mr. President, which I have now pointed out, are
so grave and so serious that no matter what the precedents are, no
matter what the rulings have been, it would be impossible for us to
declare that this rule shall in the future govern the Senate of the
United States.
If it is adopted it means that if bribery is skillfully done, if
bribery is committed by those who have the rule in view, it can always
effect its purpose if there be anything like an even division in the
general assembly. It means that bribery, carried on by some other
person than the candidate himself will be permitted to seat a Member in
the Senate of the United States. It means that you can bribe members
sufficient in number without any consequence at all, so far as the
validity of the title is concerned, provided you bribe just enough to
reduce the total number to the point where the honest votes of the
candidate will be a majority. It is an unthinkable proposition to me.
It is in conflict with the fundamental rule which we have always
acknowledged and which every tribunal has acknowledged wherever it has
had occasion to deal with the question at all.
The rule is that no man shall be permitted to enjoy the fruits of
bribery. No man shall be permitted to hold a seat in this body that he
could not have obtained had it not been for the bribery. The rule
contended for by these Senators will permit a Member to hold a seat
here which is the direct result of and which has been won through the
grossest corruption.
105. The case of William Lorimer, of Illinois, continued.
Bribery sufficient to change the result of the election not being
shown and no personal participation in corrupt practices being proved,
the Senate declined to invalidate the election.
Under its constitutional right to judge elections, returns, and
qualifications, the Senate may inquire into the personal fitness of a
man elected by a State; the manner of his election; and whether votes
cast for him by members of the legislature were procured through
bribery; but may not inquire into the personal character of the
legislators themselves.
The majority relate:
Four members of the General Assembly which elected Mr. Lorimer
testified to receiving money as a consideration for their votes. The
members who thus confessed their own infamy were Charles A. White,
Michael Link, H. J. C. Beckemeyer and Daniel W. Holstlaw.
Sec. 105
Charles A. White.
The chief of these self-accusers and the one on whose testimony the
whole fabric of the accusation largely depends was Charles A. White, a
member of the lower house of the Illinois General Assembly. White seems
to have developed early in his legislative career an insatiable desire
to secure a pecuniary compensation for his official acts, and he also
appears to have suspected his fellow members of the general assembly of
being as corrupt as himself. He endeavored to induce the chairman of an
important committee to defer reporting a bill, in order to extort money
from those who were interested in its passage. After Mr. Lorimer had
been elected to the Senate, White tried to obtain information from
another member of the house whether money had not been used to promote
Senator Lorimer's election. This inquiry not only shows his corrupt
character, but also casts suspicion upon the truth of his story that he
had been bribed to vote for the successful candidate for Senator.
White's account of the alleged bribery of himself is given
circumstantially and in detail, but in this he has been shown to have
falsified in several important particulars concerning which he could
not have been mistaken had his narrative been true. Among other things,
he stated that Browne came to his room shortly before the election of
Senator Lorimer and that two men named Yarborough were then in the
room. But it was proved by two reputable and credible witnesses that on
the evening in question one of these men was in Chicago.
Without further reference to the details of White's testimony, it may
be said that after seeing, observing, and hearing this witness it was
the opinion of a majority of the subcommittee that no credence ought to
be given to any part of his testimony tending to establish the fact of
bribery. And after carefully reading the testimony given by White in
the investigation, a majority of the committee concur in the opinion of
the subcommittee in that regard.
Discussing this conclusion during debate in the Senate, Mr. Elihu
Root, of New York, said \1\ in dissent:
It appears by the testimony of Mr. White, testimony that must be
accepted, because it is corroborated by this great array of
indisputable facts.
Mr. President, I say we are bound to accept that testimony, because
it accords with what every one of us knows to be true. Every one of us
knows that with bribery, attempted upon seven independent members of a
legislature, effective as to four, failing as to three, but evidence of
it produced, never in this world did it happen, or could it happen,
that there were not others.
So difficult is it to secure evidence of this kind of crime, so
almost insuperable are the obstacles to confession and to testimony,
that universal experience has established to the knowledge of us all
that but a trifling, occasional, incidental portion of the corruption
that exists, wherever it exists at all, is ever brought to light. So
well is this understood that in England, in order that corruption might
not continue to do its demoralizing work in their body politic, they
have made by law the proof of the bribery of one voter fatal to an
election, and they have made by law the oral admission, not under oath,
of a voter that his vote was bought evidence of the truth of the
admission.
The difficulties in the way of making proof where, in the vast
majority of cases, both parties are guilty and neither can give
evidence without stamping himself with infamy, are so great that we are
bound to act upon the universal knowledge that the facts brought out
here in evidence must have been accompanied by other similar facts; had
here you have proof, here you have legal proof. I say, Mr. President,
no Senator is at liberty to reject that proof which corresponds with
his own belief.
The testimony of other members of the legislature charged with
accepting bribes is thus analyzed in the majority report:
Michael Link.
According to the testimony of this witness, he was paid the sum of
$1,000 by Lee O'Neil Browne some time after Mr. Lorimer had been
elected to the Senate. He further testified that
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\1\ Third session Sixty-first Congress, Record, p. 1891.
Sec. 105
no money was paid or promised him before he voted for Mr. Lorimer; that
he made up his mind as early as in the month of March, 1909, to vote
for Mr. Lorimer if an opportunity for so doing should occur, and
promised Mr. Lorimer his vote some time in advance of the election of a
Senator. When accused of having received money for voting for Mr.
Lorimer, he denied it. When Summoned before a grand jury, he stated,
under oath that he had not received any money as a consideration for
his vote for Senator. Following this statement he was compelled, by
means fully set forth in his testimony, to retract his former statement
and testify to having received money for his vote for Mr. Lorimer.
H. J. Beckemeyer.
This witness also testified before the subcommittee that he had
received money from Lee O'Neil Browne as a reward for his vote for
Senator Lorimer, but he also testifies that no money or other
compensation was promised him before he voted for Mr. Lorimer. His
experience before the grand jury was similar to that of the witness
Michael Link, and as against his declaration last made before the grand
jury and repeated to the subcommittee we have his statement to Michael
Link denying the use of money in the senatorial election, and also to
Robert E. Wilson that he did not get any money for voting for Mr.
Lorimer, and if anyone said so he was a liar.
D. W. Holstlaw.
This witness testified that in a conversation with Senator Broderick
he told Broderick that he intended to vote for Mr. Lorimer for Senator,
to which Broderick replied, ``Well, there is $2,500 for you,'' and that
some time afterwards Broderick paid him $2,500. This witness was also
driven to making this statement by certain proceedings taken before a
grand jury of Sangamon County, Ill., and in many respects the story
told by this witness seemed to the subcommittee to be a highly
improbable one.
The circumstances before referred to and many others which might be
instanced tended to render the testimony of each and all the witnesses
who have been named of doubtful value. And in each case in which it was
claimed that some member of the Illinois General Assembly had been
bribed to vote for Mr. Lorimer the accusation was positively denied by
the person accused of committing the alleged act of bribery. And after
a careful examination and consideration of all the evidence submitted
the committee are of the opinion that even if it should be conceded
that the four members of the Illinois General Assembly before referred
to received money in consideration for their votes for Mr. Lorimer,
there are no facts or circumstances from which it could be found or
legally inferred that any other member or members of the said general
assembly were bribed to vote for Mr. Lorimer.
The majority for Senator Lorimer in the joint assembly of the two
houses of the general assembly of the State of Illinois was 14. Unless,
therefore, a sufficient number of these votes were obtained by corrupt
means to deprive him of this majority, Mr. Lorimer has a good title to
the seat he occupies in the Senate. If it were admitted that four of
the members of the general assembly who voted for Mr. Lorimer were
bribed to do so, he still bad a majority of the votes cast in the
general assembly and his election was valid.
Case of Browne, Broderick, and Wilson.
It is, however, declared that if the four witnesses before named were
bribed to vote for Mr. Lorimer, those who bribed them were equally
guilty and that the votes of Browne, Broderick, and Wilson should also
be excluded. But the committee can find no warrant in the testimony for
believing that either one of said legislators was moved by any corrupt
influence. Browne's reasons for voting as he did are clearly set forth
in his testimony. He was the leader of a faction of the minority of the
house, and for certain political reasons he thought it good policy to
aid in the election, of some member of the majority party other than
those who had received a considerable number of votes in the general
assembly.
Sec. 105
After discussing the testimony in detail the majority conclude:
Much of the testimony taken upon the investigation related to the
alleged payment of money to members of the general assembly of Illinois
by one Robert E. Wilson. This was denied by Wilson and by others, and
after considering all the evidence on that subject, the committee are
not prepared to find that the fact is established. But whether the sums
of money claimed to have been paid were or were not paid, that fact has
no relevancy to the matter which the committee was appointed to
investigate. If any money was disbursed by Wilson, it is evident that
it was from a fund which was neither raised nor expended to promote the
election of Mr. Lorimer as a Senator nor to reward those who voted for
him for that office. It was therefore no part of the duty of the
subcommittee to inquire into either the origin of the fund or the
purpose for which it was used. That matter was and is one for the
proper officials of the State of Illinois to take cognizance of and one
with which the Senate of the United States has no concern.
The committee submit to the Senate the testimony taken in the
investigation, with their report that in their opinion, the title of
Mr. Lorimer to a seat in the Senate has not been shown to be invalid by
the use or employment of corrupt methods or practices, and requests
that they be discharged from further consideration of Senate resolution
No. 264.
Mr. W. B. Heyburn, of Idaho, concurred fully in the report of the
majority of the committee and signed the report but submitted
individual views giving additional reasons for his conclusions as
follows:
It is not claimed nor was any attempt made to show that Mr. Lorimer
was in any way connected with the alleged bribery or that he knew of
any bribery or corrupt practice in connection with his election.
The committee is not charged with the investigation of the personal
character of the members of the Illinois Legislature, nor should it
report upon the same.
The right to investigate the character of the legislative body of a
State or any member thereof belongs exclusively to the State and the
people thereof.
In the Senate every presumption is in favor of the integrity of the
State as certified to it by the chief executive of the State, and no
presumption can be indulged that the State acted corruptly in the
election of a Senator.
When a question as to the right of an incumbent to sit arises in the
Senate which is based upon charges made by persons acting in their
individual capacity, the burden of sustaining such charges rests on the
charging party, and such party should be held to strict proof of the
charges made, and such charges may not be made the basis of a dragnet
investigation into the personal conduct or morals of the members of the
legislature who participated in the election. The State must stand
responsible for the character of its officers, and that responsibility
is to its own people and not to any branch of the General Government.
The Senate may inquire into the personal fitness of a man elected by
a State to sit as a Senator and may determine such question within the
exercise of its exclusive powers, but in doing so it may not inquire
into the personal character of the officers through whom the State
acts. That question belongs to the people of the State exclusively.
The Senate may, however, inquire into the manner of the election of a
Member of its body to the extent, and for the purpose of ascertaining
whether such election was an honest one, representing the will of the
members of the legislative body which certifies his election to the
Senate, and in doing this we may inquire whether the votes cast by
members of the legislature were procured by bribery of such members, by
the person for whom they voted or by anyone on behalf of such person
with the knowledge or consent of such person, and in case we should
find that such bribery existed we should find that his election was
procured in violation of the law, and the person so selected should not
be permitted to hold the office of Senator.
In this case Mr. Lorimer is neither charged nor shown to have bribed
or corrupted any member of the legislature who voted for him, or to
have furnished any money to any person for such purpose, neither has it
been shown that he had any knowledge of any bribery or corrupt practice
in connection with his election. We do not have to weight testimony to
arrive at this
Sec. 106
conclusion, for them was no attempt to establish such conduct or
knowledge on the part of Senator Lorimer.
106. The case of William Lorimer, of Illinois, continued.
Discussion of reason for requiring two-thirds vote rather than
majority vote for expulsion from the Senate.
Charges that the election of a Senator was secured through corrupt
practices, investigated and held not to be sustained by evidence.
Instance wherein a Senator requested elimination from appropriation
bill of item reimbursing him for expenses incurred in defense of his
seat.
Mr. Albert J. Beveridge, of Indiana, did not concur in the opinion of
the majority but filed minority views in which he attacked precedents
approved by the majority to the effect that in order to invalidate an
election it must be shown that a sufficient number of voters were
bribed to change the result. After discussing the inequity of these
precedents the views say:
I propose that we overthrow such unsound precedents and establish a
new Senate precedent, that one act of bribery in the election of a
Senator makes such an election void--makes an election foul.
The public welfare, the theory of free and fair elections, which it
is our sole business to safeguard, and which is the reason and origin
of the power we are now exercising, requires the establishment of this
new Senate precedent.
We should in this case establish the law of the Senate in conformity
with the ancient common law. We should declare that one act of bribery
makes a whole election foul.
This pronouncement by the Senate of the United States would prevent
an ambitious and wealthy candidate from perpetrating bribery to make
his election sure and doing it in such a way as to cover up his tracks.
It would give a needed pause to corrupt interests that undertake to
make the election of their favorite certain by corrupt practices. It
absolutely would prevent overzealous friends, inspired by nothing but
the heat of battle and devotion to their favorite, from undertaking to
secure his success by infamous methods.
If we make a new Senate precedent that one act of bribery makes a
whole election foul, we shall have an end of the amusing and overworked
argument of the improper activities of too enthusiastic friends bribing
voters for their favorite without any other motive than their fanatical
and money-sacrificing devotion to him.
The time has arrived when we had much better take to heart the
people's unsullied and uninfluenced representation than that we should
continue to bemoan the possible fate of a virtuous candidate in whose
behalf the heinous crime of bribery has been practiced, whether by
venal interests or by well-intentioned but overzealous and financially
affluent friends.
But waive this point. The evidence shows it is not necessary to a
decision of this case. I advance it only because this body ought to
establish now that one act of bribery invalidates an election.
In agreement with this doctrine Mr. Burton in debate in the Senate
also declared: \1\
The Senate is not bound by any precedent created by a legal decision
or even by a report of a committee of Congress. Most of the reports to
Congress in contested-election cases have been characterized by a fair
disposition and an evident desire to render a decision in accordance
with justice. They have also been characterized in many cases by
exceptional ability. But a great question of public policy is presented
to the Senate in any contested-election case. The country looks here
for an example. The State from which the Senator is accredited has a
right to demand that exact justice be done.
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\1\ Third session Sixty-first Congress, Record, p. 1980.
Sec. 106
Thus we may brush aside precedents if they do not accord with justice
and the highest moral standards.
In this connection the minority views discuss the reason for
requiring a two-thirds vote for expulsion, as follows:
And this suggests another untenable view heretofore suggested in
election cases and which we should now decisively negative. This view
is that a single act of bribery perpetrated or countenanced by a person
elected to the Senate of the United States does not void the election,
but only so taints such a person that he must be expelled. That is, if
the sitting Senator personally perpetrated or countenanced bribery to
secure his election his seat can not be vacated by a majority vote, but
he must be expelled by a two-thirds vote.
I think it clear that this view is wrong. The argument for it is that
the bribing Senator is guilty only of a moral defect which renders him
unfit to be a Member of this body.
It is as if such a Senator had a contagious disease such as smallpox,
or that he was dangerously insane, or that he had committed treason,
and yet, in any of these cases, insisted upon sitting among us. In any
of these cases or others that may suggest themselves such a Member may
be expelled, but only by a two-thirds vote.
The reason a two-thirds vote was provided in the Constitution to
expel a member was that the mental, moral, or physical defect should be
so unquestionable that two-thirds of this body would be impelled to
vote for expulsion.
And yet it is upon these grounds and these only that the argument is
made that a Senator guilty or knowing of bribery in his election must
be expelled by a two-thirds vote rather than his election invalidated
by a majority vote.
This position is so dangerous to the public welfare, so contrary to
public policy, so abhorrent to reason and repugnant to justice that I
repudiate and challenge it.
For conceding that an elected Senator had a majority of perfectly
honest votes, would they have so cast their votes if they had known
that the candidate was bribing other votes?
Let me put an illustration personally to each Senator here. Suppose
that we are electing some man to some office within our gift. Suppose
that all but one of us were honest and earnest in our intended votes
for this man. But suppose that just before our vote we discovered that
he had bribed or countenanced the bribery of one of our number. Would a
single one of us with such knowledge vote for the man for whom until
that moment we had intended to vote? Of course not.
So it is that one act of bribery perpetrated or countenanced by any
Senator to secure his election vitiates the same. It does not
necessitate an act of expulsion requiring a two-thirds vote, but a
resolution requiring a majority vote invalidating the election.
As to whether knowledge of bribery by its beneficiary is a requisite
to invalidation the views say:
Was Mr. Lorimer informed of what was going on in his behalf? While
not necessary to a decision of this case, the evidence and
circumstances require the Senate to consider this point.
From his speech on this case in this body it appears that Mr. Lorimer
is a seasoned politician of nearly 30 years' experience in practical
politics in one of the greatest cities of the country and of the
world--a superb organizer who gives attention to the very smallest
details of any election.
In law Mr. Lorimer must be held to have knowledge of these
transactions in his behalf.
If so, I contend that his election is invalid upon this ground. If
Senators believe that he knew and countenanced a single act of bribery
we need not conclude that we must expel him by a two-thirds vote. We
need only to conclude that his election was invalid and so declare by a
majority vote.
But for the purpose of this particular case it is not necessary to
raise the question of Mr. Lorimer's knowledge of any bribery in his
behalf. I raise it only because personally I want to go on record
against the proposition hitherto advanced, that an act of bribery by a
successful candidate does not invalidate his election, but only taints
the successful candidate himself.
Sec. 107
I conclude that this election was invalid under any possible view of
the law. If the Senate so concludes, it is our duty to so declare.
In consonance with his views Mr. Beveridge offered the following:
Resolved, That William Lorimer was not duly and legally elected to a
seat in the Senate of the United States by the Legislature of the State
of Illinois.
Mr. James B. Frazier, of Tennessee, from the committee, also
submitted individual views dissenting from the majority report as
follows:
As I understand the precedents as established by the Senate and the
other branch of Congress and now recognized as the law governing such
cases, they are:
First. If the proof establishes the fact that the Member whose seat
is in question because of alleged bribery or corrupt practices resorted
to in his election has himself been guilty of bribery or corrupt
practices, or knew of or sanctioned such corrupt practices, he may be
unseated without reference to the number of votes thus corruptly
influenced.
Second. If the proof fails to show that the Member knew of or
participated in or sanctioned such corrupt practices, then, in order to
justify unseating him, the proof must show that enough members of the
legislature voting for him were bribed or influenced by corrupt
practices that deducting their votes from the total vote received by
him would reduce his vote below the constitutional majority required
for his election.
The testimony taken by the committee satisfies me that four members
of the legislature were paid money for voting for, or in consequence of
having voted for, Senator Lorimer. One senator and three
representatives admitted under oath before the committee that they were
paid money, and their admissions and the facts and circumstances
surrounding the transactions satisfy me that they received it as a
bribe for or in consequence of their votes for Senator Lorimer.
The four self-confessed bribe takers implicate three other members of
the legislature who voted for Senator Lorimer as the persons who bribed
them. The testimony satisfies me that the three alleged bribe givers
were guilty of that offense. To my mind the man who bribes another is
as corrupt as the one who is bribed, and by his corrupt act of bribery
he demonstrated the fact that he is none too honest to receive a bribe
if offered him.
While the proof is not clear or conclusive that these three bribe
givers were themselves bribed or corruptly influenced to vote for
Senator Lorimer, when I take into consideration their corrupt conduct
as bribers of others, together with all the facts and circumstances
surrounding this case, I can not bring myself to agree with the
majority of the subcommittee that their votes are free from taint or
corruption. These three votes added to the four confessedly bribed
would make seven tainted votes. Eliminate them, and the vote received
by Senator Lorimer was less than a majority of the votes cast.
Mr. Frazier then concurs in the resolution offered by Mr. Beveridge.
The report of the committee was debated at length in the Senate on
January 18, 23, 25, 26, 27; February 3, 6, 7, 9, 10, 13, 14, 21, 23,
24, 27, 28, and March 1, 1911. On March 1,\1\ the minority resolution
submitted by Mr. Beveridge was disagreed to--yeas 40, nays 46.
Two days later, on March 3,\2\ during consideration by the Senate of
the deficiency appropriation bill, Mr. Lorimer requested that an item
granting him $25,000 for expenses incurred in defense of his title to
his seat be rejected. After some debate the item was disagreed to.
107. The Senate case of William, Lorimer, of Illinois, in the Sixty-
second Congress.
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\1\ Record, p. 3760.
\2\ Record p. 1113.
Sec. 107
Instance wherein the Senate appointed, to investigate an election, a
special committee made up of members of the Committee on Privileges and
Elections.
Instance wherein a special committee was appointed with instructions
to investigate and report to the Senate upon the sources and use of a
fund alleged to have affected the election of a Senator.
A former decision by the Senate on a contested election does not
preclude reopening the case if additional evidence is discovered.
In passing on an election case the Senate exercises a judicial
function, and its decisions must be based upon legal principles and be
in accordance with the evidence.
On May 20, 1912,\1\ in the Senate, Mr. William P. Dillingham, of
Vermont, from the Committee on Privileges and Elections, submitted the
report of the majority of the committee in the second investigation of
the election of William Lorimer, of Illinois.
A prior investigation of the same election had been concluded by a
vote in the Senate confirming the Senator's title to his seat.
The following chronological statement of the first investigation is
thus set out in the report:
The Forty-sixth General Assembly of Illinois met and organized
January 6, 1909. On that day the house elected Edward D. Shurtleff
speaker.
The first vote for United States Senator in the separate houses of
the legislature was taken January 19, 1909. The first joint ballot for
United States Senator was taken January 20, 1909. There were 95 joint
ballots for United States Senator. More than 150 different men were
voted for, for United States Senator, by that legislature.
The first vote for William Lorimer for United States Senator was cast
May 13, 1909. William Lorimer was elected Senator on the ninety-fifth
joint ballot, taken on the 26th day of May, 1909.
There were 202 members of the legislature present and voting on the
ninety-fifth ballot, May 26, 1909. On that ballot William Lorimer
received 108 votes for United States Senator, Albert J. Hopkins
received 70 votes, and Lawrence B. Stringer received 24 votes. Senator
Lorimer had a majority of 14 votes.
Two hundred and four members had been elected to the Forty-sixth
General Assembly of Illinois. Paul Zaable, a member of the house, died
in January, and the vacancy was not filled at that session. Frank P.
Schmidt, a member of the senate, was not present at the taking of the
ninety-fifth ballot.
The total number of Republicans elected to the house was 89; the
total number of Democrats elected to the house was 64. The total number
of Republicans in the senate was 38; the total number of Democrats in
the senate was 13. The total number of Republican elected to both
houses of the legislature was 127; the total number of Democrats
elected to both houses of the legislature was 77.
On the ninety-fifth ballot 55 Republican votes and 53 Democratic
votes were cast for Mr. Lorimer.
William Lorimer was commissioned United States Senator by Gov. Deneen
on May 27, 1909.
Senator Lorimer was sworn in and took his seat in the United States
Senate June 18, 1909.
On April 30, 1910, the Chicago Tribune published the White story.
April 29, 1910, State's Attorney Wayman filed a petition for and
obtained an order calling a special grand jury in Cook County.
May 2, 1910, the special grand jury convened and was sworn in.
-----------------------------------------------------------------------
\1\ Second session Sixty-second Congress, Senate Report No. 769;
Record, p. 6790.
Sec. 107
Lee O'Neil Browne was indicted on the 6th day of May, 1910, on a
charge of bribing Charles A. White to vote for Senator Lorimer.
May 28, 1910, Senator Lorimer made a speech in the United States
Senate and demanded an investigation of the charges made by the Chicago
Tribune April 30, 1910.
On June 7, 1910, Clifford W. Barnes filed charges in the Senate of
the United States against Senator Lorimer.
June 20, 1910, the United States Senate adopted a resolution
providing for an investigation.
A subcommittee of the Committee on Privileges and Elections of the
Senate of the United States, of which Senator Burrows was chairman, was
appointed to investigate the charges against Senator Lorimer.
September 20, 1910, the subcommittee of the Committee on Privileges
and Elections of the Senate of the United States convened in Chicago to
hear testimony. September 22, 1910, the subcommittee of the Senate held
its first public hearing.
The subcommittee of the Senate concluded the hearing of testimony in
Chicago October 8, 1910.
December 7, 1910, the subcommittee of the United States Senate took
further testimony in Washington, D. C., and on that day concluded the
public hearings.
December 21, 1910, the Committee on Privileges and Elections of the
Senate presented its report to the Senate of the United States. The
report exonerated Senator Lorimer and found:
``In our opinion the title of Mr. Lorimer to a seat in the Senate has
not been shown to be invalid by the use or employment of corrupt
methods or practices.''
On January 9, 1911, Senator Beveridge submitted his views to the
Senate of the United States, dissenting from the report of the
Committee on Privileges and Elections, and offered the following
resolution:
``Resolved, That William Lorimer was not duly and legally elected to
a seat in the Senate of the United States by the Legislature of the
State of Illinois.''
On January 30, 1911, Senator Frazier, a member of the Committee on
Privileges and Elections, submitted his views to the Senate, concurring
in the resolution offered by Senator Beveridge.
The report of the Committee on Privileges and Elections and the
resolution of Senator Beveridge were discussed and debated on the floor
of the Senate at intervals until March 1, 1911.
On the 1st of March, 1911, the resolution of Senator Beveridge was
determined in the negative by the Senate; a roll call thereon resulted
in a vote--nays 46, yeas 40.
The Sixty-first Congress adjourned sine die at noon March 4, 1911.
While the first investigation was still in progress, the senate of
the Illinois Legislature also appointed a committee to investigate the
election. During the investigation by the Illinois Senate the Record-
Herald, a Chicago newspaper, published an editorial in which the
following language was used:
Do we know all there is to be known concerning the $100,000 fund that
was raised to pay for Lorimer's votes?
The editorial attracted wide attention, and Herman H. Kohlsaat, the
editor of the paper, was summoned before the Illinois committee and
gave the following testimony:
Q. What is your full name?--A. Herman H. Kohlsaat.
Q. You are the editor and proprietor of the Chicago Record-Herald?--
A. Yes.
Q. In February of this year, Mr. Kohlsaat, there was published in the
Chicago Record-Herald an editorial in reference to the senatorial
action at Springfield. I will show you a copy of that editorial, or
what purports to be a substantial copy [handing document to witness].--
A. (Examining document). I think that is practically correct, because
that is the way I felt and feel.
Q. That editorial, then, was written by you?--A. Dictated.
Q. You had information upon which that editorial was based?--A. Yes.
Q. Have you an objection to giving the committee that information?--
A. Yes.
Sec. 107
Q. Well, do you object to giving the committee the information which
you had, without at this time, perhaps, identifying the individual or
individuals who gave you the information?--A. Yes; because if I did
that it would naturally lead up to the main party in the controversy,
and it would undo just what I do not want to do.
Q. There were a number of editorials written along that same line,
were there not?--A. Yes.
Q. About that time?--A. Yes. Shall I just tell this in my own way?
Q. Just tell it in your own way, yes.--A. Shortly after the Chicago
Tribune published Representative White's story last spring I met a
friend of mine, a man of the highest character, intelligence, and a man
who does not make reckless statements, and he gave me a detailed
account of the raising of $100,000 to bring about the election of Mr.
Lorimer. He gave it to me in confidence. I told him that the confidence
would not be betrayed. With that feeling of perfect security that this
man's information that he gave me was absolutely reliable, I took the
position that the election should be investigated and came out
editorially and backed the Tribune in its fight. The natural
inclination in cases of that kind, where there are two great papers
striving in the same field for circulation, advertising, and influence,
is to, in the language of the street, knock the other paper's story.
But I was so impressed with the truth of this that I came out
editorially next day after this and backed the Tribune in their story,
and have done it ever since.
As I say, this was given to me in confidence. The cardinal principle
of an honorable, upright newspaper man is confidence.
Q. Did he inform you that a fund of $100,000 had been raised to
induce the election of Senator Lorimer in the State of Illinois?--A. He
did.
Q. Did he also tell you that the man or men who had raised that
$100,000 fund desired to reimburse themselves, or solicit 10 other men,
residents of Chicago, to make that amount good?--A. I must decline to
answer.
Q. And did he tell you that he was one of the men so approached?--A.
I decline to answer.
Q. Did he give you the name or names of men who approached him, and
what they said to him in connection with the matter?--A. I must decline
to answer.
(Whereupon the committee went into executive session, at the
conclusion of which the open session was resumed and the following
proceedings had:)
Chairman Helm. Mr. Kohlsaat, the committee has agreed that we will
have to require you to answer, and if you refuse that we will report
the matter to the senate and request you to appear back here next
Wednesday to see what the senate desires to do in the matter. Will you
still persist in refusing to answer?--A. Yes.
Q. You decline to make any further disclosure?--A. Yes.
The witness persisted in refusing to divulge the name of his
informant, until April 5, 1911, when Clarence A. Funk, of Chicago,
voluntarily appeared before the committee as the informant referred to,
and testified as follows:
Q. What is your full name, Mr. Funk?--A. Clarence S. Funk.
Q. Where do you live?--A. In Oak Park, Chicago.
Q. And what is your business?--A. I am general manager of the
International Harvester Co.
Q. I direct your attention to a conversation that you had with Edward
Hines, of the Edward Hines Lumber Co., in the latter part of the month
of May, 1909, or the early part of the month of June, 1909. Did such a
conversation take place?--A. Well, I can not identify the month. I had
a conversation with Edward Hines shortly after Lorimer was elected
United States Senator by the legislature.
Q. Well, it is in the record here that the election of Senator
Lorimer was on the 26th of May, 1909. Directing your mind to that time,
or about that time, when was it that this conversation occurred?--A. It
was shortly after that. I could not say whether it was 5 days or 10,
but it was within a short time afterwards.
Q. Where did that conversation take place?--A. Union League Club,
Chicago.
Q. And with whom was the conversation?--A. Edward Hines.
Q. Was the conference arranged in any way or was it more or less
accidental?--A. I met Mr. Hines accidentally, and he said he had been
trying to get a chance to see me or get time to see me.
Sec. 107
Q. Now, will you tell the committee, Mr. Funk, what occurred and what
was said at that conversation by Mr. Hines and by yourself?--A. Do you
want me to undertake to repeat verbatim?
Q. As near as you can remember; otherwise the substance of the
conversation.--A. Well, he said I was just the fellow he had been
looking for, or trying to see, and said he wanted to talk to me a
minute. So we went and sat down on one of the leather couches there on
the side of the room, and without any preliminaries, and quite as a
matter of course, he said, ``Well, we put Lorimer over down at
Springfield, but it cost us about a hundred thousand dollars to do
it.'' Then he went on to say that they had had to act quickly when the
time came; that they had had no chance to consult anyone beforehand. I
think his words were these ``We had to act quickly when the time came,
so we put up the money.'' Then he said ``We--now we are seeing some of
our friends so as to get it fixed up.'' He says they had advanced the
money; that they were now seeing several people whom they thought would
be interested to get them to reimburse them. I asked him why he came to
us. I said ``Why do you come to us?''--meaning the harvester company.
He said, ``Well, you people are just as much interested as any of us in
having the right kind of a man at Washington.'' Well, I said--I think I
replied, and said, ``We won't have anything to do with that matter at
all.'' He said, ``Why not?'' I sad, ``Simply because we are not in that
sort of business.'' And we had some aimless discussion back and forth,
and I remember I asked him how much he was getting from his different
friends. He said, ``Well, of course we can only go to a few big people;
but if about 10 of us will put up $10,000 apiece that will clean it
up.'' That is the substance of the conversation. I am repeating it
verbatim just as far as I can, Mr. Chairman. I do not undertake to say
that is absolutely exact.
I left him then in just a moment. As I left he asked me to think it
over. I made no reply to that. I just walked away.
This testimony was given wide publicity through the public press and
on the following day, April 6,\1\ in the Senate, Mr. Robert M. La
Follette, of Wisconsin, presented as privileged the following
resolution with the request that it lie on the table subject to call:
Whereas the Senate by resolution adopted on the 20th day of June,
1910, authorized and directed the Committee on Privileges and Elections
to investigate certain charges against William Lorimer, a Senator from
the State of Illinois and to report to the Senate whether in the
election of said Lorimer as a Senator of the United States from said
State of Illinois there were used and employed corrupt methods and
practices; and
Whereas said committee, pursuant to said resolution, took the
testimony of a large number of witnesses, reduced the testimony to
printed form, and reported the same to the Senate, which was thereafter
considered and acted upon by the Senate; and
Whereas the Illinois State Senate thereafter appointed a committee to
investigate like charges against William Lorimer and to report to said
State senate whether in the election of said Lorimer to the United
States Senate corrupt methods and practices were employed and used; and
Whereas as it appears from the published reports of the proceedings
of the said Illinois State Senate committee that witnesses who were not
called and sworn by the committee of this Senate appointed to
investigate said charges have appeared before the said committee of the
Illinois State Senate, and upon being interrogated have given important
material testimony tending to prove that $100,000 was corruptly
expended to secure the election of William Lorimer to the United States
Senate:
Resolved, That Senators John D. Works, Charles E. Townsend, George P.
McLean, John W. Kern, and Atlee Pomerene be, and they are hereby,
appointed a special committee, and as such committee be, and are
hereby, authorized and directed to investigate and report to the Senate
whether in the election of William Lorimer, as a Senator of the United
States from the State of Illinois, there were used and employed corrupt
methods and practices; that said committee be
-----------------------------------------------------------------------
\1\ First session Sixty-second Congress, Record, p. 101.
Sec. 108
authorized to sit during the sessions of the Senate and during any
recess of the Senate or of Congress, to hold sessions at such place or
places as it shall deem most convenient for the purposes of the
investigation, to employ stenographers, to send for persons and papers,
to administer oaths, and to report the results of its investigation,
including all testimony taken by it; and that the expenses of the
inquiry shall be paid from the contingent fund of the Senate upon
vouchers to be approved by the chairman of the committee.
108. The Senate case of William Lorimer in the Sixty-second Congress,
continued.
Decision by committee that defense of res adjudicata could be invoked
against reconsideration of election case once passed upon was rejected
by the Senate.
Decision by committee that payment to members of legislature of money
not shown to have been paid for specific purpose of electing Senator
did not invalidate election, overruled by Senate.
The Senate invalidated an election procured by corrupt practices
without holding the Senator cognizant of the corrupt practices on which
invalidated.
On June 7, 1911,\1\ the Senate agreed to the following resolution:
Resolved, That a committee of the United States Senate consisting of
the following members of the Committee on Privileges and Elections:
Senators Dillingham, Gamble, Jones, Kenyon, Johnston, Fletcher, Kern,
and Lea, be, and are hereby, authorized, empowered, and directed
forthwith to investigate whether in the election of William Lorimer as
a Senator of the United States from the State of Illinois there were
used and employed corrupt methods and practices.
That said committee be authorized to sit during the sessions of the
Senate and during any recess of the Senate or of Congress; to hold
sessions at such place or places as it shall deem most convenient for
the purpose of the investigation; to employ stenographers, counsel,
accountants, and such other assistants as it may deem necessary; to
send for persons, books, records, and papers; to administer oaths; and
as early as practicable to report to the Senate the results of its
investigation, including all testimony taken by it; and that the
expenses of the inquiry shall be paid from the contingent fund of the
Senate upon vouchers to be approved by the chairman of the committee.
The committee is further and specially instructed to inquire fully
into and report upon the sources and use of the alleged ``jack-pot''
fund, or any other fund, in its relation to and effect, if any, upon
the election of William Lorimer to the Senate.
At the outset of the investigation, counsel for Mr. Lorimer raised
the issue of res adjudicata, contending that the case had been fully
investigated and finally determined by the Senate and such action was a
bar to further proceedings questioning the validity of the election.
In support of this doctrine Mr. D. Upshaw Fletcher, of Florida, said
\2\ in the Senate:
This case has been adjudicated; the action taken March 3, 1911, was
final and forever settled the question involved, certainly in the
absence of new evidence of such a nature that, had it been introduced
before, would or might have produced a different result.
This case was passed upon by the Senate of the Sixty-first Congress,
the term expiring March 4, 1911. Some 30 changes had taken place in the
membership of the Senate by the time the Sixty-second Congress
convened. Owing to these changes this case was ordered retried--the
alleged grounds being, however, that new evidence had been discovered,
which, if presented and considered,
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\1\ First session Sixty-second Congress, Record, p. 1732.
\2\ Second session Sixty-second Congress, Record, p. 8725.
Sec. 108
would make a different case. Many Senators believed additional and
newly discovered evidence existed, and in view of the charges made it
would be advisable to make another investigation and ascertain what new
facts could be uncovered. This action will likely serve as a
precedent--although the Senate treats each case, apparently, from the
standpoint of power and might--that is liable to plague us in future.
In similar cases the Senate adopted the doctrine of res adjudicata, as
far back as 1858.
The change of the personnel of the Senate should not prompt a change
of decision reached as judges acting in a judicial capacity any more
than a change in the individual justices on the bench should of itself
give grounds for the rehearing of a cause. Unless a different case is
presented involving different facts or additional, material facts not
known before, clearly it must be recognized as an unjust interference,
wrongfully imposing expense and trouble, to repeatedly bring to the bar
a Senator and require him time after time to defend his right to his
seat in this body. If, in the Sixty-first Congress, he is tried, and
again in the Sixty-second, can he not be in the Sixty-third and Sixty-
fourth, and yearly to the end of his term? When is the judgment of the
Senate to be conclusive, and forever bar any further proceedings to
adjudicate the same question? The authorities uniformly hold that the
rule of res adjudicata applies in this case, and is a complete answer
to the resolution offered and now pending. The report of the committee
sets forth a number of authorities, and I will not elaborate upon them.
The Senate has the power to force a reexamination of the questions and
a new vote by a new Senate on a resolution to the same effect as the
one previously voted on, but that is not the same thing as having the
legal or moral right to do so.
In opposition to this view Mr. Luke Lea, of Tennessee, said: \1\
The question of law presented is whether the Senate has a right now
to consider this case, since, on March 1, 1911, by a vote of 46 to 40,
a resolution was adopted declaring the election of Senator Lorimer
valid. The second question, one of fact, is whether this record now
before the Senate establishes the election of Senator Lorimer to have
been obtained by corrupt methods and practices.
Considering the question of law first, the plea of res adjudicata was
pleaded after the conclusion of all the testimony and immediately prior
to the conclusion of the hearings by the special investigating
committee. It presents to the Senate the question of whether the plea
of res adjudicata, as known to court practice, can prevent a
reconsideration by the Senate of this case upon its merits.
The judicial functions of the Senate in passing upon the election and
qualifications of its Members are purely incidental and subsidiary to
its principal functions, which are legislative. The distinction between
the functions of a legislative body and a judicial tribunal is that
those of the legislative body are necessarily never final, while those
of the judicial tribunal must necessarily be final. It is conceded that
the plea of res adjudicata, can never be properly invoked in court
until there is a final judgment, and as there never can be a final
judgment in a legislative body, whose judicial functions are merely
incidental to its legislative functions, the plea of res adjudicata,
can never be properly plead.
The true doctrine is that the Senate should never reopen an election
case for the purpose of permitting a changed political complexion to
reverse a former verdict, but that the Members of the Senate should
never hide behind a technical plea to avoid correcting a former
erroneous decision; that an election case is never finally decided
until it is decided right upon the fullest and fairest investigation
and consideration of all the facts that can possibly be obtained. The
reason for such a rule is apparent. If a changed political complexion
would justify the reversal of the former verdict, then election cases
would be decided, not according to their merits or justice to the
parties, but according to the dominant political opinion of the Senate.
On the other hand, the reason is equally strong that the Senate should
reopen an election case wherever there is new or material evidence or
where, on the whole record, from an equitable standpoint, it should
reconsider its former verdict either for or against the Member whose
seat is contested.
-----------------------------------------------------------------------
\1\ Record, p. 8884.
Sec. 108
The report says:
One of the most elementary doctrines of the law, perhaps the one most
universally accepted, is the doctrine of res adjudicata.
The rule of res adjudicata, is in force in every American court and
in every governmental body or organization that performs, even though
but incidentally, judicial functions. The Cyclopedia of Law and
Procedure cites the following bodies, boards, and officers whose
judgments have been held to constitute res adjudicata, (vol. 23, pp.
1219-1221):
Courts-martial; church judicatories; Commissioner of Patents;
Comptroller of the Currency; collector of customs; Board of Land
Commissioners; road commissioners in adjudicating upon the necessity of
a road and in locating and making assessments for it; the common
council of a city in canvassing election returns; board of city police
commissioners acting as a court for the trial of members of the police
force. An these subordinate and merely quasi judicial agencies, and
many others of similar character, are bound by the law of res
adjudicata when they seek to review their former decisions in a matter
involving the exercise of a judicial function.
The Senate has held that the doctrine of res adjudicata, is
applicable to election cases and in numerous instances has enforced and
applied that doctrine.
The majority then cite numerous authorities and precedents and
continue:
Counsel for Senator Lorimer might well have withheld filing the plea
until some resolution was offered declaring the election invalid. The
resolution appointing this committee directed an investigation of the
election. If, as a result of that investigation or otherwise, any
resolution should be hereafter offered to the Senate declaring that the
election of William Lorimer as a Senator from Illinois was illegal and
invalid, when such a resolution is offered it would be in order for
Senator Lorimer to invoke the defense of res adjudicata. Until such a
resolution is offered and under consideration in the Senate there would
be no occasion, measured by the analogies of a pleading in a court of
law or in equity, for a Senator formally to present his defense. The
Senate by the adoption of the resolution appointing this committee did
not vacate or attempt to vacate the former judgment. Neither Senator
Lorimer nor anyone else could know what the Senate meditated doing when
the investigation was concluded--could not know whether or not any
resolution would even be offered assailing the validity of the election
in question. But the plea serves to call to the attention of this
committee the question of res adjudicata; and this committee deems it
its duty to present to the Senate the facts and the contentions bearing
on that question so that the Senate may, as the defense of res
adjudicata is made, understand that any resolution which may be offered
would be subject to the defense of res adjudicata.
In the argument submitted in behalf of Senator Lorimer the case is
thus analyzed:
There was in the case at bar (A) a final judgment (B) by a competent
tribunal invested with complete jurisdiction to try the issue; (C) the
parties to the former judgment are the same parties as are now in
controversy, and (D) the issues and causes of action were precisely the
same. When these elements are present the former judgment is a bar not
only to what was actually litigated in the former suit, but to all
matters that might have been litigated under the issues thereof.
The majority agree that each of the enumerated elements is present in
the case, and that a resolution declaring against the validity of the
election would be subject to the defense of res adjudicata.
The majority say as to the first item:
(A) The adjudication by the Senate, by its action of March 1, 1911,
on the resolution, was final. By that action the Senate finally
adjudged that Senator Lorimer was duly and legally elected to a seat in
the Senate of the United States. As pointed out by counsel for Senator
Lorimer, ``If the resolution had been adopted Senator Lorimer would
have been unseated, and he could not have asked the Senate at the
Sixty-second Congress to rehear him and change its judgment.''
Manifestly, the judgment, if against him, would have been final, and
equally plain
Sec. 108
is the fact that the judgment for him was also final. No contention can
be made that the form of the resolution prevents its being considered a
final judgment.
The sentence or decision of the Senate is all contested election
cases and in all expulsion cases has been made by resolution. Counsel
cites many cases in the Senate by some of which the title of a Senator
to his seat has been confirmed and by others of which expulsion has
been defeated, where the judgment of the Senate was expressed by the
determination of a resolution in the negative. We deem it unnecessary
to review these cases.
The courts have decided that the determination of a matter of
election by the adoption of a resolution in a legislative body
constitutes a final adjudication. (State of Maryland v. Jarrett &
Harwood, 17 Md., 309; Opinion of the Justices, 56 N.H., 570.)
As to the second item:
(B) The Senate was a tribunal competent to render the judgment.
The numerous decisions of the courts and of the Senate itself cited
of this report establish that the Senate, in passing upon an election
case, is a court exercising purely judicial functions. Moreover, the
jurisdiction of the Senate in such a matter is exclusive.
Herman on Estoppel says (see. 131, p. 143):
``A much more conclusive effect is given to judgments of courts of
exclusive jurisdiction than to judgments of courts which have only
concurrent jurisdiction.''
The fact that the judgment was rendered by a divided court does not
detract from its conclusiveness as res adjudicata. It has been held by
the Supreme Court of the United States, and by many other courts, that
the fact the former judgment was pronounced by a divided court, or even
a court equally divided, as sometimes happens in cases of affirmance by
operation of law in courts of appellate review, makes the judgment none
the less binding. (Durant v. Essex County, 7 Wall., 107; McAllister v.
Hamilton, 61 S. C., 6; 39 S. E., 182; Kolb v. Swann, 68 Md., 516; 13
Atl., 379.)
As to the third item:
(C) The parties to the proceeding are the same.
In cases of judgments in rem identity of parties is not an element
essential to the application of the doctrine of res adjudicata because
in such a case the former judgment includes not only the parties, but
the whole world. In the Fitch and Bright case the Senate treated the
former judgment as a judgment in rem. When the judgment is in personam,
the law requires that the parties in the second proceeding be the same
as the parties in the proceeding leading to the former judgment. In any
proceeding against the validity of the election of William Lorimer the
plaintiff would be the Senate itself in its inquisitorial or
prosecuting capacity and the defendant would be, of course, William
Lorimer. Much of the law of res adjudicata has been borrowed by modern
jurisdictions from the civil law of Rome. In the Roman law the
respective parties were known as the actor and the reus. In legal
contemplation the judgment pronounced by the Senate, March 1, 1911, was
in the action of the United States Senate, actor, v. William Lorimer,
reus. The Government and its branches and agencies are subject to the
operation of the law of res adjudicata the mine as individuals. (See
the decision of the Supreme Court of the United States in United States
v. California & Oregon Land Co., 192 U.S., 355.)
As to the fourth item:
(D) If, as a result of this investigation, there should be presented
to the Senate a resolution that the election of William Lorimer was
invalid, then the issue raised by that resolution would be precisely
the same as that in the proceeding leading to the judgment of March 1,
1911, whereby the Senate adjudicated that the election of William
Lorimer was valid and legal. Beyond all question, complete identity of
issue is shown by the record.
The majority therefore conclude:
Your committee, therefore, concludes that both on principle and by
authority the action of the Senate March 1, 1911, deciding that the
election of William Lorimer was valid and legal, con-
Sec. 108
stitutes res adjudicata as against any subsequent attempt to have the
Senate decide that the election was not valid and legal.
In this connection it is well to direct attention to the fact that
the principle of res adjudicata embraces not only what was actually
determined, but extends also to every matter which, under the issues,
the parties might have litigated. As pointed out in the briefs
submitted, there is some misunderstanding as to the law of res
adjudicata, due to attempts to cover the whole subject by definite
rules intended to be applicable to all cases. Where the issues are the
same the bar of the former judgment extends not only to points actually
decided but to all the points and questions which could have been
litigated under the issues in the former proceeding. Where the issues
are not the same and where a former judgment is relied on simply as an
estoppel on some limited issue that is common to both proceedings, then
the law is that the former judgment is conclusive only as to what was
actually decided. But the latter principle has no possible application
here because, beyond all question, the issue would be the same as it
was in the former proceeding in the Senate, namely, whether the
election of William Lorimer as a Senator from Illinois was valid and
legal. The rule that where the former judgment was upon the same issues
it is a bar not only as to what was actually litigated and decided, but
as to everything that might have been litigated under the issues in the
former proceeding, has, as said by Herman on Estoppel (sec. 125, pp.
133, 134), ``not only gone unchallenged for more than a half century,
but a uniform and unbroken line of cases has given it approval.''
Everything that has been brought forward in the present investigation
could have been presented and litigated in the former proceeding under
the issues thereof. The existence of the evidence with the taking of
which the present hearing was begun, namely, the testimony of Clarence
S. Funk, was known to some Senators at the time of the former hearing
of this matter before the Senate. Mr. Kohlsaat, the editor of the
Chicago Record-Herald, sent telegrams and letters to a number of
Senators advising them of the existence of that evidence during the
pendency of the question before the Senate and before its final action.
The former committee permitted the Tribune to be represented before it
by counsel. The editor of the Tribune knew from Mr. Kohlsaat of the
existence of that evidence while the subcommittee was sitting in
Chicago engaged in taking the testimony. (Record, 2001-2003.) No effort
was ever made by those who undertook to present all the evidence and
who knew of the Funk story to present in that proceeding any phase of
the subject covered by the testimony of Mr. Funk. Manifestly no
judicial tribunal should encourage the trying of a case by piecemeal.
The very object of courts is to put an end to controversy. And no court
would permit a party who has knowledge of his evidence to withhold it
at the first trial for the purpose of getting a second trial if
defeated in the first.
As an application of the principle established by the authorities
last referred to, the law is clearly to the effect that newly
discovered evidence furnishes no ground for avoiding the bar of a
former final judgment. Some of the laity may have the impression that a
former judgment can be nullified by bringing forth at a second hearing
newly discovered evidence. No law author and no court recognizes any
such exception to the doctrine of res adjudicata.
The authorities make it plain that the Senate is barred by the rule
of res adjudicata from reopening and rehearing this case on the ground
of newly discovered evidence.
But the newly discovered evidence question is not one of great
importance in this matter, for the reason that even if the doctrine of
res adjudicata were not in the way no case whatever has been made out
that would warrant the granting of a new trial on the ground of newly
discovered evidence. In that class of cases where the courts set aside
verdicts and grant new trials for newly discovered evidence, there are
certain well-defined limitations upon granting new trials on that
ground. The granting of new trials on the ground of newly discovered
evidence is a power cautiously exercised by the courts, and the
strictest rules are applied in examining an application on such a
ground.
In the first place, the evidence newly discovered must be ``of such a
character and strength that it is reasonably certain that it would have
produced an opposite result if produced at the trial''; the new
evidence must be incontrovertible and conclusive. (29 Cyclopedia of Law
and Procedure, 900-902, and several hundred decisions cited in notes;
23 Cyclopedia of Law and Procedure, 1031.) ``The evidence must not be
merely cumulative or corroborative or merely intended to impeach some
Sec. 108
of the witnesses at the former trial.'' (Same authorities, and 29
Cyclopedia of Law and Procedure, 907-918.)
In the next place, the evidence must actually have been discovered
after the time of the former trial, and the party seeking the new trial
must excuse his failure to produce the new evidence by showing that he
failed to discover it, notwithstanding the exercise of due diligence by
him. Of course, if the party knows of the new evidence at the time of
the former trial, such knowledge is a complete bar to the granting of a
new trial on this ground. (29 Cyclopedia of Law and Procedure, 885,
886, et seq.; 23 Cyclopedia of Law and Procedure, 103.)
The record clearly shows in the present proceeding that the existence
of the principal new evidence which it may be claimed was the occasion
for making the new inquiry was known to some Senators at the time of
the former hearing before the Senate.
Moreover, the granting of new trials on the ground of newly
discovered evidence is usually to the party defendant. (6 Pomeroy's
Equity Jurisprudence, edition of 1905, sec. 661; 23 Cyclopedia of Law
and Procedure, 1030.) Few, if any, cases can be found where such relief
was granted to one who occupied the position of plaintiff in the former
trial. The reason for this is that it generally lies within the power
of the party plaintiff to dismiss his proceedings and to start them
anew if he deems his evidence insufficient, especially if he had any
intimation that additional evidence could be produced.
The new evidence introduced on this hearing was mainly of these three
classes: (1) Rumor, gossip, and opinion about various members of the
Illinois Legislature; (2) evidence such as the testimony of Clarence S.
Funk as to talk of a fund in connection with the senatorial election,
which we show elsewhere was known by those urging this reinvestigation
while the former one was in progress; (3) evidence favorable to Senator
Lorimer, contradicting certain testimony adverse to him, and explaining
many circumstances not explained on the first investigation.
Of course, the evidence of the third class furnishes no newly
discovered evidence to overturn the former judgment.
No one could say that the evidence of the first class was conclusive.
It was not even evidence in any legal sense. Thousands of pages of the
record contain testimony of this kind, which would not have been
competent under any rules governing the admissibility of evidence, but
which was received by this committee in order to obtain every possible
matter of information bearing on the situation. For example, there was
evidence that some members of the Illinois Legislature, several months
after the senatorial election, were seen in possession of a number of
$100 bills. The possession of such money was no evidence that it was
acquired corruptly, for it is at least as reasonable to infer that it
was obtained honestly. But if it appeared the member was unable to
account clearly for the possession of the money, and if there were
anything to indicate a possibility that the money was obtained as a
result of corrupt practices, there is no reason whatever for inferring
from the fact of possession of the money by such a member that the
money was received as a payment for voting for Senator Lorimer. Such a
member voted on several hundred measures in the session. One of the
laws enacted at that session limited the hours of work for women in
factories to 10 hours. It would be absurd to say that the possession of
the money was proof that a member who voted for that law was paid for
so doing. It is equally absurd to contend that the mere fact that some
member of the legislature not in any way otherwise subject to any
imputation of corruption in voting for Mr. Lorimer, was in possession
of money several months after the election, was evidence that he had
received that money for voting for Senator Lorimer. All the evidence of
this class was lacking in that conclusiveness essential to the granting
of new trials on the ground of newly discovered evidence.
So, even if it were proper to vacate the former judgment on the
ground of newly discovered evidence, there is no newly discovered
evidence to which attaches conclusiveness and the other elements
uniformly recognized by the courts as necessary to be present in order
to warrant granting a new trial on the ground of newly discovered
evidence.
If a tribunal will not respect its own judgments it can not expect
others to do so. This committee submits the enforcement of the doctrine
of res adjudicata is essential to uphold the dignity of the court
pronouncing the judgment in this case. The reasons which call for the
enforcement of the doctrine of res adjudicata by the courts apply even
more strongly to the Senate.
Sec. 109
Our conclusion is the doctrine of res adjudicata applies here and the
former judgment of the Senate rendered March 1, 1911, herein is
conclusive.
109. The Senate case of William Lorimer in the Sixty-second
Congress, continued.
Instance wherein the Senate, after investigating an election and
declaring it valid, again investigated and reversed its decision.
Report of committee minority declaring that Senate in ordering a
second investigation thereby passed upon question of res adjudicata was
sustained by the Senate.
Instance wherein minority views, holding a Senator elected by corrupt
practices and therefore not entitled to his seat, were sustained by the
Senate.
The Senate recognizes no precedents save those established by itself
in analogous cases.
The Senate having invalidated the election of a Senator, no action
was taken on a proposition to reimburse him for expenses incurred in
defense of title to his seat.
Minority view submitted by Mr. Lea, signed also by Mr. William S.
Kenyon, of Iowa, and Mr. John W. Kern, of Indiana, join issue on the
question of res adjudicata as follows:
An effort was made, as is shown by the report of the action of the
committee on March 27, 1912, to rest the action of the committee in
this case upon the plea of res adjudicata. We do not believe that such
a plea is applicable or tenable in this case.
As we understand the procedure, the resolution relative to the second
investigation of the election of Senator Lorimer was referred to the
Committee on Privileges and Elections to report whether a new
investigation was warranted, and that the committee in reporting the
resolution ordering another investigation in fact reported that there
was sufficient grounds for another investigation, and the Senate, in
adopting this report of the Committee on Privileges and Elections and
the resolution presented creating this committee, on June 7, 1911,
ordered a new trial, and in ordering a new trial acted upon the
question of res adjudicata--the plea of res adjudicata being such as
can be made on the motion of the court or the tribunal acting as a
court at any time--and that the committee appointed under the
resolution adopted on June 7, 1912, should not, under the authority of
its appointment, make any report upon the law involving the right of
the Senate to reopen the case, but that said committee had only
authority to make a report responsive to the resolution appointing and
instructing the committee.
In election cases before the Senate a mistake is frequently made in
drawing a comparison between such a trial and a criminal trial in
court. Analogies are frequently misleading, and an analogy between the
trial of an election case by the Senate and a criminal case is most
misleading. The comparison, if drawn, should be between the trial of a
Senate election case and a civil case before a court.
Subsection 1 of section 5 of Article I of the Constitution of the
United States provides:
``Each House shall be the judge of the election, returns and
qualifications of its own Members.''
So that no precedents or decisions of courts or other legislative
bodies can have any but argumentative weight in the determination of an
election case in either House of Congress.
The Senate is not bound by any precedents, and the only ones that are
of any value in the determination of such a question are those which
have been made by the Senate in determining similar cases heretofore.
It is submitted that there is no precedent of the Senate of the
United States holding that a contested-election case may not be
reopened, and at least there are dicta to the contrary.
Sec. 109
After discussing cases referred to by the majority the minority say:
Summarizing these cases we find not a single one that has held that
the Senate could not reopen a contested-election case on the ground of
newly discovered evidence; but, on the contrary, we find statements in
support of a report against reopening a case, from which the inference
can be fairly and logically drawn that if there had been newly
discovered evidence the case should have been reopened, and an unacted
upon report by the Committee on Privileges and Elections in favor of
reopening on the ground of newly discovered evidence a contested-
election case that had been finally decided.
The instructions to the committee to report upon the sources and uses
of an alleged jack-pot fund is thus complied with by the majority:
This committee was specially instructed to inquire fully into and
report upon the sources and use of the alleged jack-pot fund, or any
other fund, in its relation to and effect, if any, upon the election of
William Lorimer to the Senate.
The committee has hereinbefore specifically reported its inability to
find any evidence of the existence of a jack pot or any other fund
raised or used for the purpose of affecting such election.
After discussing exhaustively the evidence submitted in the case the
majority conclude:
The Senate has once solemnly and deliberately passed upon the charges
made against him. Its judgment, after a full investigation and
extensive argument, was in his favor, and should stand unless new and
convincing evidence is produced establishing corruption in his
election. This rule is more liberal toward the Senate and the people
than toward Mr. Lorimer, because if the judgment had been against him
he would have been bound by it, and no amount of proof showing the
injustice of the decision against him would secure its reversal and his
reinstatement as a member of this body.
Absolutely no new and substantial evidence has been produced or
discovered on this reinvestigation showing that he was elected by
corruption, and we believe that all the rules of law, judicial
procedure, and justice require that the former judgment of the Senate
should be held to be conclusive and final.
There is absolutely no evidence in all the testimony submitted
intimating, suggesting, or charging that William Lorimer was personally
guilty of any corrupt practices in securing his election, or that he
had any knowledge of any such corrupt practices, or that he authorized
anyone to employ corrupt practices in his election.
We are convinced that no vote was secured for him by bribery; that
whatever money White, Beckemeyer, Link, Holstlaw, or any other person
received was not paid to him or them by anyone on Mr. Lorimer's behalf
or in consideration of or to secure such vote or votes for him; that
neither Edward Hines nor anyone else raised or contributed to a fund to
be used to secure his election; that his election was the logical
result of existing political conditions in the State of Illinois, and
was free from any corrupt practice, and therefore we must find, and we
do find, that William Lorimer's election was not brought about or
influenced by corrupt methods and practices.
From this conclusion the minority dissent and after commenting on the
evidence say:
In considering the evidence presented in this case, it must be borne
in mind that the crime of bribery is distinct from nearly every other
crime, in that both parties to it have the same incentive and desire,
springing from the instinct of self-preservation, to conceal the crime.
In nearly every other crime the person wronged or injured is influenced
by motives of revenge or desire for reparation or satisfaction to
assist the State in securing the facts and punishing the offender. But
in bribery both the bribe giver and the bribe taker are equally guilty
and equally desirous of concealing the truth and cheating justice. In
nearly every case of bribery proof thereof must rest solely upon
circumstantial evidence.
Sec. 109
But in this case there are confessions by four men that their votes
were secured by bribery, and their confessions are corroborated by
strong circumstantial evidence.
If bribery can not be proved in the Senate by confessions of the
bribe takers, corroborated by strong circumstantial evidence, then the
conclusion is irresistible that only express contracts of bribery, duly
authenticated by witnesses, can establish that crime to the
satisfaction of the Senate of the United States.
We are of the opinion that the evidence in this investigation shows
conclusively that the following votes for William Lorimer were obtained
by corrupt methods: Charles A. White, H. J. C. Beckemeyer, Michael
Link, Joseph S. Clark, Henry A. Shepherd, Charles Luke, D. W. Holstlaw.
As the vote of the bribe giver is equally corrupt as that of the
bribe taker, we include the following votes: Lee O'Neil Browne, Robert
E. Wilson, John Broderick.
In view of the proof showing that the 10 votes of the members set out
above were obtained by corruption, circumstantial and other evidence
show that the following votes were also obtained by corrupt methods and
practices: W. C. Blair, Thomas Tippitt, Henry L. Wheelan, John H.
DeWolf, Cyril R. Jandus.
Believing that the confessions of the members of the legislature,
strengthened by corroborating circumstances and by other evidence
relating to the members of the legislature who did not confess,
establish conclusively not only that at least 10 votes were purchased
for the purpose of electing William Lorimer to the Senate, but that the
record reeks and teems with evidence of a general scheme of corruption,
we have no hesitancy in stating that the investigation establishes,
beyond contradiction, that the election of William Lorimer was obtained
by corrupt means and was therefore invalid.
In accordance with these findings the minority recommend the
following resolution:
Resolved, That corrupt methods and practices were employed in the
election of William Lorimer to the Senate of the United States from the
State of Illinois, and that his election was therefore invalid.
The report of the committee and the resolution offered by the
minority were exhaustively debated in the Senate on June 4, 5, 7, 8,
July 6, 8, 9, 10, 11, 12, and 13.
On June 13,\1\ the minority resolution was agreed to, yeas 55, nays
28.
On August 10,\2\ Mr. Joseph F. Johnston, of Alabama, from the special
committee appointed to investigate the election of William Lorimer,
submitted an amendment to the deficiency appropriation bill proposing
to pay Mr. Lorimer $35,000 as reimbursement for expenses incurred in
defense of his title to his seat. The proposed amendment was referred
to the Committee on Appropriations, which took no further action
thereon.
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\1\ Second session Sixty-second Congress, Record, p. 10643.
\2\ Record, p. 10643.