Cannon's Precedents, Volume 6 - Chapter 155 - The Electors and Apportionment

[Cannon's Precedents, Volume 6]
[Chapter 155 - The Electors and Apportionment]
[From the U.S. Government Publishing Office, www.gpo.gov]

THE ELECTORS AND APPORTIONMENT.

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1. Constitution and laws relating to electors. Section 38.
2. Constitution and laws relating to apportionment. Sections
39-47.
3. The privilege of bills relating to census and apportionment.
Sections 48-52.
4. Right of the State to change districts. Section 53.
5. Claims of States to representation in excess of
apportionment. Section 54.

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38. The right of citizens of the United States to vote shall not be
denied or abridged on account of sex.
The nineteenth amendment to the Constitution provides:

Section 1. The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on
account of sex.
Sec. 2. Congress shall have power to enforce this article by
appropriate legislation.

39. The Constitution provides that the enumeration to fix the basis
of representation shall be made once in every ten years.
The distribution of representation under the several apportionments.
Section 2 of Article XIV of the Constitution provides--

Representatives shall be apportioned among the several States
according to their respective numbers,\2\ counting the whole number of
persons \3\ in each State, excluding Indians not taxed.
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\1\ Supplementary to Chapter VIII.
\2\ The various apportionments, including the first one made in the
Constitution itself, have been as follows:

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States. 1787 1790 1800 1810 1820 1830 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930
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Delaware................................ 1 1 1 2 1 1 1 1 1 1 1 1 1 1 ..... 1
Pennsylvania............................ 8 13 18 23 26 28 24 25 24 27 28 30 32 36 ..... 34
New Jersey.............................. 4 5 6 6 6 6 5 5 5 7 7 8 10 12 ..... 14
Georgia................................. 3 2 4 6 7 9 8 8 7 9 10 11 11 12 ..... 10
Connecticut............................. 5 7 7 7 6 6 4 4 4 4 4 5 5 5 ..... 6
Massachusetts........................... 8 14 17 20 13 12 10 11 10 11 12 13 14 16 ..... 15
Maryland................................ 6 8 9 9 9 8 6 6 5 6 6 6 6 6 ..... 6
South Carolina.......................... 5 6 8 9 9 9 7 6 4 5 7 7 7 7 ..... 6
New Hampshire........................... 3 4 5 6 6 5 4 3 2 3 2 2 2 2 ..... 2
Virginia................................ 10 19 22 23 22 21 15 13 11 9 10 10 10 10 ..... 9
New York................................ 6 10 17 27 34 40 34 33 31 33 34 34 37 43 ..... 45
North Carolina.......................... 5 10 12 13 13 13 9 8 7 8 9 9 10 10 ..... 11
Rhode Island............................ 1 2 2 2 2 2 2 2 2 2 2 2 2 3 ..... 2
Vermont................................. ..... 2 4 6 5 5 4 3 3 3 2 2 2 2 ..... 1
Kentucky................................ ..... 2 6 10 12 13 10 10 9 10 11 11 11 11 ..... 9
Tennessee............................... ..... ..... 3 6 9 13 11 10 8 10 10 10 10 10 ..... 9
Ohio.................................... ..... ..... ..... 6 14 19 21 21 19 20 21 21 21 22 ..... 24
Louisiana............................... ..... ..... ..... ..... 3 3 4 4 5 6 6 6 7 8 ..... 8
Indiana................................. ..... ..... ..... ..... 3 7 10 11 11 13 13 13 13 13 ..... 12
Mississippi............................. ..... ..... ..... ..... 1 2 4 5 5 6 7 7 8 8 ..... 7
Illinois................................ ..... ..... ..... ..... 1 3 7 9 14 19 20 22 25 27 ..... 27
Alabama................................. ..... ..... ..... ..... 2 5 7 7 6 8 8 9 9 10 ..... 9
Maine................................... ..... ..... ..... ..... 7 8 7 6 5 5 4 4 4 4 ..... 3
Missouri................................ ..... ..... ..... ..... 1 2 5 7 9 13 14 15 16 16 ..... 13

\3\ The Constitution also provides for ascertaining this number of
persons by a census every ten years.
Sec. 40
But when the right to vote at any election for the choice of electors
for President and Vice-President of the United States, Representatives
in Congress, the executive and judicial officers of a State, or the
members of the legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens
of the United States, or in any way abridged, except for participation
in rebellion, or other crime, the basis of representation therein shall
be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age
in such State.

The last apportionment, which was the first under the act of 1929,
was made on the basis of one Representative for 280,679 of population.
40. From March 3, 1913, the membership of the House was fixed at 435.
The law of August 8, 1911, \1\ makes the following provisions as to
the membership of the House:

That after the third day of March, nineteen hundred and thirteen, the
House of Representatives shall be composed of four hundred and thirty-
five members.

41. The apportionment of Representatives to the several States under
the law of 1929.
Under the law of 1929 the President transmits to each fifth Congress
a statement of population and apportionment of existing number of
Representatives among the several States thereunder.
Methods of apportioning the existing number of Representatives among
the several States in accordance with the census.
The act of June 18, 1929,\3\ makes the following provisions as to
apportionment:

Sec. 22. (a) On the first day, or within one week thereafter, of the
second regular session of the Seventy-first Congress and of each fifth
Congress thereafter, the President shall transmit to the Congress a
statement showing the whole number of persons in each State, excluding
Indians not taxed, as ascertained under the fifteenth and each
subsequent decennial census of the popula-
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\1\ U. S. Code, title 2, sec. 2.
Footnote 2 continued from p. 31:

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States. 1787 1790 1800 1810 1820 1830 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arkansas................................ ..... ..... ..... ..... ..... ..... 1 2 3 4 5 6 7 7 ..... 7
Michigan................................ ..... ..... ..... ..... ..... ..... 3 4 6 9 11 12 12 13 ..... 17
Florida................................. ..... ..... ..... ..... ..... ..... ..... 1 1 2 2 2 3 4 ..... 5
Iowa.................................... ..... ..... ..... ..... ..... ..... ..... 2 6 9 11 11 11 11 ..... 9
Texas................................... ..... ..... ..... ..... ..... ..... ..... 2 4 6 11 13 16 18 ..... 21
Wisconsin............................... ..... ..... ..... ..... ..... ..... ..... 3 6 8 9 10 11 11 ..... 10
California.............................. ..... ..... ..... ..... ..... ..... ..... 2 3 4 6 7 8 11 ..... 20
Minnesota............................... ..... ..... ..... ..... ..... ..... ..... ..... 2 3 5 7 9 10 ..... 9
Oregon.................................. ..... ..... ..... ..... ..... ..... ..... ..... 1 1 1 2 2 3 ..... 3
Kansas.................................. ..... ..... ..... ..... ..... ..... ..... ..... 1 3 7 8 8 8 ..... 7
West Virginia........................... ..... ..... ..... ..... ..... ..... ..... ..... 3 3 4 4 5 6 ..... 6
Nevada.................................. ..... ..... ..... ..... ..... ..... ..... ..... 1 1 1 1 1 1 ..... 1
Nebraska................................ ..... ..... ..... ..... ..... ..... ..... ..... 1 1 3 6 6 6 ..... 5
Colorado................................ ..... ..... ..... ..... ..... ..... ..... ..... ..... 1 1 2 3 4 ..... 4
South Dakota............................ ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 2 2 3 ..... 2
North Dakota............................ ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 1 2 3 ..... 2
Montana................................. ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 1 1 2 ..... 2
Washington.............................. ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 2 3 5 ..... 6
Idaho................................... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 1 1 2 ..... 2
Wyoming................................. ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 1 1 1 ..... 1
Utah.................................... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 1 1 2 ..... 2
Oklahoma................................ ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 5 8 ..... 9
Arizona................................. ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 1 ..... 1
New Mexico.............................. ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... 1 ..... 1
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Total............................... 63 105 141 181 212 240 223 234 241 293 325 357 391 435 ..... 435
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\3\ 46 Stat. L., p. 26.
Sec. 42
tion, and the number of Representatives to which each State would be
entitled under an apportionment of the then existing number of
Representatives made in each of the following manners:
(1) By apportioning the then existing number of Representatives among
the several States according to the respective numbers of the several
States as ascertained under such census, by the method used in the last
preceding apportionment, no State to receive less than one Member;
(2) By apportioning the then existing number of Representatives among
the several States according to the respective numbers of the several
States as ascertained under such census, by the method known as the
method of major fractions, no State to receive less than one Member;
and
(3) By apportioning the then existing number of Representatives among
the several States according to the respective numbers of the several
States as ascertained under such census, by the method known as the
method of equal proportions, no State to receive less than one Member.

42. Statement of population and apportionment thereunder submitted to
the Seventy-first Congress, and form of message transmitting it.--On
December 5, 1930,\1\ it being the first day of the second regular
session of the Seventy-first Congress, the President transmitted to the
Congress the following message:

To the Congress of the United States:
In compliance with the provisions of section 22 (a) of the act
approved June 18, 1929, I transmit herewith a statement prepared by the
Bureau of the Census, Department of Commerce, giving the whole number
of persons in each State, exclusive of Indians not taxed, as
ascertained under the Fifteenth Decennial Census of population, and the
number of Representatives to which each State would be entitled under
an apportionment of the existing number of Representatives by the
method known as the method of major fractions, which was the method
used in the last preceding apportionment, and also by the method known
as the method of equal proportions.
Herbert Hoover.

The message was accompanied by the following statement:

Apportionment of 435 Representatives by the method of major fractions,
which was used in the last preceding apportionment, and by the method
of equal proportions with total population of the several States,
number of Indians not taxed, and population basis of apportionment

\1\ Third session, Seventy-first Congress, House Document No. 664.
Sec. 43

----------------------------------------------------------------------------------------------------------------
Apportionment of 435
Representatives by method
Population of--
as Population ---------------------------
State enumerated Indians not basis of Major
April 1, taxes apportionment fractions
1930 used in last Equal
preceding proportions
apportionment
----------------------------------------------------------------------------------------------------------------
Idaho...................................... 445,032 3,496 441,536 2 2
Illinois................................... 7,630,654 266 7,630,388 27 27
Indiana.................................... 3,238,503 23 3,238,480 12 12
Iowa....................................... 2,470,939 519 2,470,420 9 9
Kansas..................................... 1,880,999 1,501 1,879,498 7 7
Kentucky................................... 2,614,589 14 2,614,575 9 9
Louisiana.................................. 2,101,593 ........... 2,101,593 8 8
Maine...................................... 797,423 5 797,418 3 3
Maryland................................... 1,631,526 4 1,631,522 6 6
Massachusetts.............................. 4,249,614 16 4,249,598 15 15
Michigan................................... 4,842,325 273 4,842,052 17 17
Minnesota.................................. 2,563,953 12,370 2,551,583 9 9
Mississippi................................ 2,009,821 1,667 2,008,154 7 7
Missouri................................... 3,629,367 257 3,629,110 13 13
Montana.................................... 537,606 12,877 524,729 2 2
Nebraska................................... 1,377,963 2,840 1,375,123 5 5
Nevada..................................... 91,058 4,668 86,390 1 1
New Hampshire.............................. 465,293 1 465,292 2 2
New Jersey................................. 4,041,334 15 4,041,319 14 14
New Mexico................................. 423,317 27,335 395,982 1 1
New York................................... 12,588,066 99 12,587,967 45 45
North Carolina............................. 3,170,276 3,002 3,167,274 11 11
North Dakota............................... 680,845 7,505 673,340 2 2
Ohio....................................... 6,646,697 64 6,646,633 24 24
Oklahoma................................... 2,396,040 13,818 2,382,222 9 9
Oregon..................................... 953,786 3,407 950,379 3 3
Pennsylvania............................... 9,631,350 51 9,631,299 34 34
Rhode Island............................... 687,497 ........... 687,497 2 2
South Carolina............................. 1,738,765 5 1,738,760 6 6
South Dakota............................... 692,849 19,844 673,005 2 2
Tennessee.................................. 2,616,556 59 2,616,497 9 9
Texas...................................... 5,824,715 114 5,824,601 21 21
Utah....................................... 507,847 2,106 505,741 2 2
Vermont.................................... 359,611 ........... 359,611 1 1
Virginia................................... 2,421,851 22 2,421,829 9 9
Washington................................. 1,563,396 10,973 1,552,423 6 6
West Virginia.............................. 1,729,205 6 1,729,199 6 6
Wisconsin.................................. 2,939,005 7,285 2,931,721 10 10
Wyoming.................................... 225,565 1,935 223,330 1 1
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43. If Congress fails to apportion, each State shall be entitled to
the number of Representatives shown in the President's statement under
the method last used.
On failure of the Congress to apportion, the Clerk certifies to each
State executive the number of Representatives to which the State is
entitled under the law.
Sec. 44
Form of the first certificate of notification under the law of 1929.
The act of June 18, 1929,\1\ in providing for apportionment, has the
following:

(b) If the Congress to which the statement required by subdivision
(a) of this section is transmitted, fails to enact a law apportioning
Representatives among the several States, then each State shall be
entitled, in the second succeeding Congress and in each Congress
thereafter until the taking effect of a reapportionment under this act
or subsequent statute, to the number of Representatives shown in the
statement based upon the method used in the last preceding
apportionment. It shall be the duty of the Clerk of the last House of
Representatives forthwith to send to the executive of each State a
certificate of the number of Representatives to which such State is
entitled under this section. In case of a vacancy in the office of
Clerk, or of his absence or inability to discharge this duty, then such
duty shall devolve upon the officer who, under sections 32 and 33 of
the Revised Statutes, is charged with the preparation of the roll of
Representatives elect.
(c) This section shall have no force and effect in respect of the
apportionment to be made under any decennial census unless the
statement required by subdivision (a) of this section in respect of
such census is transmitted to the Congress within the time prescribed
in subdivision (a).

The Seventy-first Congress having failed to enact an apportionment
law after receipt of the required statement of population and
apportionment thereunder from the President, the Clerk dispatched to
each State executive a certificate of notification in the following
form:

I, Wm. Tyler Page, Clerk of the House of Representatives of the
United States, hereby certify, pursuant to section 22, subdivision (B),
of the act of the Congress of the United States of America entitled
``An act to provide for the fifteenth and subsequent decennial censuses
and to provide for apportionment of Representatives in Congress,''
approved June 18, 1929, that the State of ------ shall be entitled, in
the Seventy-third Congress and in each Congress thereafter until the
taking effect of a reapportionment under said act or subsequent
Statute, to ------ Representatives in the House of Representatives of
the Congress of the United States.
In witness whereof I hereto affix my name and the seal of the House
of Representatives of the United States of America this fourth day of
March, Anno Domini 1931, in the city of Washington, District of
Columbia.

44. The law of 1911 provides that Representatives shall be elected in
districts composed of contiguous and compact territory and containing
as nearly as practicable an equal number of inhabitants.
The districts in a State shall be equal to the number of its
Representatives, no one district electing more than one Representative.
The act of August 8, 1911,\2\ has the following:

That in each State entitled under this apportionment to more than one
Representative, the Representatives to the Sixty-third and each
subsequent Congress shall be elected by districts composed of a
contiguous and compact territory, and containing as nearly as
practicable an equal number of inhabitants. The said districts shall be
equal to the number of Representatives to which such State may be
entitled in Congress, no district electing more than one
Representative.

45. The act of a State legislature redistricting the State in
accordance with the law of 1911 requires the approval of the governor
of such State or passage over his veto.
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\1\ 46 Stat. L., p. 26, 27.
\2\ U. S. Code, Title 2, sec. 3.
Sec. 46
Where the number of Representatives to which a State is entitled
pursuant to the act of 1929 is the same as the number under the last
previous apportionment and the districts are unchanged, elections of
Representatives may be conducted in the same manner as before the
reapportionment.
Where the number of Representatives has been decreased by the new
apportionment, all the Representatives must be elected by the State at
large unless and until the new districts are created.
Where the number of Representatives for a State has been increased by
the new apportionment, the additional Representatives, if no new
districts are created, may be elected by the State at large.
Interpretation of the statutes providing for apportionment.
On April 11, 1932,\1\ the Supreme Court held that the legislature of
a State, in redistricting the State into congressional districts in
accordance with the last previous census, pursuant to the act of 1929,
is required to obtain the governor's approval or pass the act over his
veto, where the constitution of the State so requires in the enactment
of the laws.
The decision holds that a redistricting act or resolution of a
legislature not approved by the governor, or passed over his veto as
required by the State constitution, is void, and in such case the
Representatives, if not increased in number, must be elected by the
State at large, regardless of whether the act of 1911, fixing the
requirements of districts, is still in effect.
The court further held that where the number of Representatives has
been increased and the redistricting act is void, the Representatives
to which the State was previously entitled are to be elected in the
districts existing at the time of the attempted redistricting, and the
additional Representatives by the State at large.
As to States where the number of Representatives is unchanged by
reapportionment, the decision says:

In States where the number of Representatives remains the same, and
the districts are unchanged, no question is presented; there is nothing
inconsistent with any of the requirements of the Congress in proceeding
with the election of Representatives in such States in the same manner
as heretofore.

As to States where the number is increased, the court held:

In the absence of the creation of new districts, additional
Representatives allotted to a State under the present reapportionment
would appropriately be elected by the State at large.

As to States where the number is decreased, the court said:

Where the number of Representatives has been decreased, there is a
different situation as existing districts are not at all adapted to the
new apportionment. It follows that in such a case, unless and until new
districts are created, all Representatives allotted to the State must
be elected by the State at large.

46. The law of 1911 provides for the election of Representatives in
old districts and at large until the respective States shall have
rearranged the districts.--The act of August 8, 1911,\2\ has the
following:
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\1\ 285 U. S., pp. 355, 375.
\2\ U. S. Code, title 2, sec. 4.
Sec. 47
That in case of an increase in the number of Representatives in any
State under this apportionment such additional Representative or
Representatives shall be elected by the State at large and the other
Representatives by the districts now prescribed by law until such State
shall be redistricted in the manner provided by the laws thereof and in
accordance with the rules enumerated in section three of this act; and
if there be no change in the number of Representatives from a State,
the Representatives thereof shall be elected from the districts now
prescribed by law until such State shall be redistricted as herein
prescribed.

Provisions similar, but not identical are found in previous
apportionment acts.
47. The law of 1911 provides that candidates for Representative to be
elected at large shall be nominated in the same manner as candidates
for governor, unless otherwise provided.--The apportionment act of
August 8, 1911,\1\ has the following:

That candidates for Representative or Representatives to be elected
at large in any State shall be nominated in the same manner as
candidates for governor, unless otherwise provided by the laws of such
State.

This was the first instance in which an apportionment act made
provision for the nomination of candidates.
48. While the House gives priority to the consideration of business
made privileged by constitutional mandate, it determines by its rules
the procedure of such consideration.
Dicta relating to the privilege accorded by the Constitution to the
consideration of a measure returned with the President's veto.
Dicta relating to the Constitutional privilege of a question of
impeachment.
Bills relating to the census or apportionment, though privileged,
held subject to the rules of the House providing for the consideration
of privileged questions.
The Chair in his ruling is constrained to follow precedent and to
obey a well-established rule even if unreasonable, but one precedent
alone when unsupported by others is not necessarily conclusive.
On May 6, 1921,\2\ Mr. D. R. Anthony, jr., of Kansas, moved that the
House resolve itself into the Committee of the Whole House on the state
of the Union for the further consideration of the bill (H. R. 5010)
making appropriations for the support of the Army for the fiscal year
ending June 30, 1922. and for other purposes.
Pending this motion, Mr. George Holden Tinkham, of Massachusetts,
offered, as privileged under the Constitution, the following
resolution:

Whereas the fourteenth article, in addition to and amendment of the
Constitution of the United States, section 2, provides:
``When the right to vote at any election for the choice of electors
for President and Vice President of the United States, Representatives
in Congress, the executive and judicial officers of a State, or the
members of the legislature thereof is denied to any of the male
inhabitants of such State, being 21 years of age and citizens of the
United States, or in any way abridged, except for
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\1\ U.S. Code, title 2, sec. 5.
\2\ First session Sixty-seventh Congress, Record, p. 1129.
Sec. 48
participation in rebellion or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such
male citizens shall bear to the whole number of male citizens 21 years
of age in such State,'' and
Whereas it is generally and commonly alleged and is susceptible of
proof that in many States of the United States the constitutions
thereof and the laws enacted by their legislatures have, in effect,
denied or abridged to large numbers of citizens qualified under the
Constitution of the United States the right to vote in such States, and
that such alleged nullification of the Constitution of the United
States, whether direct or indirect, constitutes flagrant and persistent
disregard and violation of the fundamental law of the land and is
subversive wholly of law and of Liberty itself; and
Whereas no greater political discrimination could exist between the
several States of the Union and of their citizens than the general
conference upon each of the States alike of the power to prescribe
qualifications for electors (subject alone to the inhibitions of the
fifteenth and nineteenth amendments to the Constitution of the United
States) upon a basis of population, and the coexistence of an extensive
and evasive unconstitutional denial of the exercise of the franchise to
some citizens by some States resulting in disproportionate political
power, accentuated and enlarged by the recent enfranchisement of
females; and
Whereas the House of Representatives is about to make a
reapportionment off Representatives in Congress among the several
States, based upon the census of population of 1920: Therefore be it
Resolved, That the Committee on the Census or any subcommittee
thereof is hereby authorized and directed to proceed forthwith to make
diligent inquiry respecting the extent to which the right to vote is
denied or abridged to citizens of the United States in any State in
violation of the Constitution of the United States; and said committee
is authorized to send for persons and papers, to administer oaths to
witnesses, to conduct such inquiry at such times and places as the
committee may deem necessary, and to report its findings and
recommendations to the House at the earliest possible moment, either
separately or together with such report as said committee may submit in
connection with proposed legislation providing for a reapportionment of
Representatives in Congress, to the end that such reapportionment shall
be constitutional in form and in fact.

Mr. Frank W. Mondell, of Wyoming, made the point of order that the
resolution was not so privileged as to take precedence of the
privileged motion to resolve into the Committee of the Whole House on
the state of the Union for the consideration of a general appropriation
bill.
Mr. Tinkham urged that his resolution was submitted in compliance
with a mandatory provision of the Constitution and therefore took
precedence over a proposition merely privileged under the rules of the
House, predicating his argument upon a decision \1\ rendered on a
similar proposition by former Speaker Henderson.
The Speaker \2\ in terms overruled specifically the decision cited
and said:

The Chair thinks that if this question were brought up as an original
question, and there were no precedents upon it, every Member of the
House would at once say, ``Why, of course this can not be admitted as
privileged,'' because it would give the right to any Member of the
House at any time to abring forward a resolution affecting some
constitutional provision and to claim that his individual resolution
can at once set aside all the regular business of the House, and must
be considered by the House in preference to anything else. That puts it
above the rules of the House and allows one man, and one after another
if filibustering is desired, to bring before the House a question that
he has in advance prepared, and insist that his individual will and
preference shall change the regular order which the House itself has
established just because a clause of the Constitution is affected. So
the Chair thinks that if this were a matter of first impression, there
would be no question about it. The Chair at any rate would have no
question about it. But there is an exact precedent for this which has
been followed by the gentleman from Massachusetts, and that has much
embarrassed the Chair in coming to his decision. This whole question of
a constitutional privilege being superior to the
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\1\ Vol. 1, sec. 305, of this work.
\2\ Frederick H. Gillett, of Massachusetts, Speaker.
Sec. 48
rules of the House is a subject which the Chair has for many years
considered, and thought unreasonable. It seems to the Chair that where
the Constitution orders the House to do a thing, the Constitution still
gives the House the right to make its own rules and do it at such time
and in such manner as it may choose, and it is a strained construction,
it seems to the Chair, to say that because the Constitution gives a
mandate that a thing shall be done, it therefore follows that any
Member can insist that it shall be brought up at some particular time
and in the particular way which he chooses.
If there is a constitutional mandate, the House ought by its rules to
provide for the proper enforcement of that mandate, but it is still a
question for the House how and when and under what procedure it shall
be done, and a constitutional question, like any other, ought to be
decided according to the rules that the House has adopted. But there
have been a few constitutional questions--very few--which have been
held by a series of decisions to be of themselves questions of
privilege above the rules of the House. There is the question of the
President's veto, and to the Chair that seems to be the only one in
which there is any good reason to give a privileged status, because the
Constitution says that when the President sends a veto to the House the
House shall ``proceed to'' consider it; and that is apparently a
definite order which can fairly be interpreted to mean that it shall be
done at once, and that has been the practice of the House, and it has
been held that without a rule in obedience to the Constitution a
President's veto should be acted upon, not immediately but within a day
or two.
Another subject which has been given constitutional privilege is
impeachment. It has been held that when a Member rises in his place and
impeaches an officer of the Government he can claim a constitutional
privilege which allows him at any time to push aside the other
privileged business of the House. To the Chair that does not seem
rational. Although impeachment is a matter of constitutional privilege,
yet there is no reason why it should not be introduced like any other
matter, go into the basket, and be reported by a committee. But
inasmuch as the long line of precedents has given it a privilege, the
Chair would not think of overruling them; but the Chair can see no
intrinsic reason for the privilege. It is simply a matter of precedent.
Then have come the two questions of the census and of apportionment.
The Constitution provides that a census shall be taken every 10 years,
and that after the census is taken there shall be an apportionment, and
there is a line of decisions holding that because of that
constitutional provision, although the rules of the House have not
given the Committee on the Census a privileged status, they can come in
ahead of other questions of privilege, although the House will remember
that a few years ago the theory that a constitutional privilege was
higher than the rules of the House received a damaging blow when it was
attempted to bring up a census bill on Calendar Wednesday.
Speaker Cannon held that it was in order to do so, but the House
overruled that decision and sustained the sanctity of Calendar
Wednesday, and held that a census bill could not come up on that day,
thereby deciding that the rule of the House which sets aside Calendar
Wednesday is of higher authority than the constitutional privilege of
the census bill.
But these questions of impeachment and others came up in the early
days of the Congress, when the relative value of a privilege made
little difference. In the first half century of our existence the House
was not crowded with business. Anything that came before the House had
ample opportunity to be heard and decided, and the question whether a
subject was privileged or not was not of the same moment that it is to-
day, when our calendars are crowded, when it is impossible to transact
a tenth part of the business which is presented to the House, and when
it is of vital importance to the House that it shall be able to
determine an order of business and to consider those bills which it
considers of the greatest importance. And apparently recognizing that,
in 1880 the House for the first time adopted a rule defining questions
of privilege. It was found necessary to check the tendency to claim the
floor by alleging that a matter was privileged, and so Rule IX was
adopted, which says:
Sec. 48
``Questions of privilege shall be first, those affecting the rights
of the House collectively, its safety, dignity, and the integrity of
its proceedings; second, the rights, reputation, and conduct of Members
individually in their representative capacity only; and shall have
precedence of all other questions, except motions to adjourn.''
It is fair to say that when that rule was adopted a motion was made
that no other questions except those specified should be questions of
privilege; and by that undoubtedly it was intended to shut out those
questions of constitutional privilege which by long practice had become
established. But that was voted down. The House obviously thought that
it was not safe to say that there should be no questions of privilege
except these described in Rule IX. That was in 1880, and the House had
then recently, in the Hayes-Tilden contest, had a very vivid experience
how important a question of privilege might be when Speaker Randall, in
a turbulent House and in a great emergency, when an element in his own
party was endeavoring to filibuster against the counting of the vote,
held that the law of Congress and the necessity of determining the
election was above the rules of the House, and insisted that there
should be a vote. The Chair thinks it quite natural that Members who
had had that recent experience should feel that it was not safe to
decide that there should be no other questions of privilege than these
described.
But this Rule IX was obviously adopted for the purpose of hindering
the extension of constitutional or other privilege.
If the question of the census and the question of apportionment were
new questions, the Chair would rule that they were not questions of
constitutional privilege, because, while of course it is necessary to
obey the mandate of the Constitution and take a census every 10 years
and then make an apportionment, yet there is no reason why it should be
done to-day instead of to-morrow. It seems to the Chair that no one
Member ought to have the right to determine when it should come in in
preference to the regular rules of the House, but that the rules of the
House or the majority of the House should decide it. But these
questions have been decided to be privileged by a series of decisions,
and the Chair recognizes the importance of following precedents and
obeying a well-established rule, even if it is unreasonable, that this
may be a government of laws and not of men.
Now comes the decision by Speaker Henderson which stands alone on all
fours with the present case. Shall it be followed? If you will notice
the ruling of Speaker Henderson, you will see that it was not a
carefully reasoned opinion. It seems to have been an impulsive, offhand
opinion. He says:
``The Chair is unable to see why we should wander even among the
precedents, which the Chair has looked over to some extent and which
are all one way, when we have the plain language of the Constitution
before us.''
He does not consider it necessary to consider precedents, but relies
on the plain language of the Constitution. But, as I have already
indicated, I do not agree that the language of the Constitution gives
any privilege superior to the rules of the House. The plain language of
the Constitution simply provides for equal representation. But this
resolution and the resolution upon which Speaker Henderson ruled did
not provide that at all, it did not pretend to carry out the mandate of
the Constitution. This resolution simply says the Committee on Census
is directed to proceed forthwith to make diligent inquiry. An inquiry
is all the resolution provides, and the Chair finds it difficult to see
why on a new question Speaker Henderson ruled as he did if he had given
the matter careful investigation. He himself said within a year of that
time in passing on the question of the constitutional privilege of the
census:
``If this were an original question, the Chair would be inclined to
hold that if the House adopts rules of procedure and leaves out any
committee from the list of committees whose reports are privileged,
that that committee would be remitted to those rules of procedure
adopted by the House for its guidance.''
He agrees with the present occupant of the chair, that except for
precedent, the Committee on the Census could not claim the
constitutional privilege.
Therefore it seems to the Chair, there being this one precedent, and
no others, and the claim of the gentleman from Massachusetts, Mr.
Tinkham, being directly hostile to the control of the Home over its own
business, it being an attempt to broaden the figment of constitutional
privilege,
Sec. 49
which in 1880 the House started to limit, and which it seems to the
Chair for the orderly prosecution and control by the House of its
business ought to be narrowed rather than broadened, the Chair sustains
the point of order.

Mr. Tinkham appealed from the decision of the Chair, and the question
being taken, ``Shall the decision of the Chair stand as the judgment of
the House?'', there appeared yeas 285 and nays 47. So the decision of
the Chair was sustained.
49. A bill relating to the taking of the census was formerly held to
be privileged because of the constitutional requirement.
On March 17, 1910,\1\ Mr. Edgar D. Crumpacker, of Indiana, proposed
to call up, as privileged under the Constitution, the following joint
resolution reported from the Committee on the Census:

Resolved, etc., That the schedules relating to population for the
Thirteenth Decennial Census, in addition to the inquiries required by
the act entitled ``An act to amend section 8 of an act to provide for
the Thirteenth and subsequent decennial censuses, approved July 2,
1909,'' approved February 25, 1910, shall provide inquiries respecting
the nationality or mother tongue of all persons born in foreign
countries.

Mr. Thomas S. Butler, of Pennsylvania, having made the point of order
that the resolution was not privileged, the Speaker \2\ submitted to
the House the question:

Is the bill called up by the gentleman from Indiana in order as a
question of constitutional privilege, the rule prescribing the order of
business to the contrary notwithstanding?

On motion of Mr. Oscar W. Underwood, of Alabama, this question was
amended to read:

Is the House joint resolution, called up by the gentleman from
Indiana, in order now?

The question being taken, it was decided in the affirmative, 201 ayes
to 72 nays, and the House proceeded to the consideration of the joint
resolution.
50. On June 21, 1918 \3\ Mr. Harvey Helm, of Kentucky, as a
privileged question, moved that the House proceed to the consideration
of the bill (H. R. 11984) making provision for the Fourteenth and
subsequent decennial censuses.
Mr. Frederick H. Gillett, of Massachusetts, made the point of order
that the motion was not privileged and said:

The Speaker is, I know, perfectly familiar with the precedents and
will remember, as I do, the argument and decision of Speaker Henderson
on the subject. In making that decision Speaker Henderson indicated
that if it was a new question without precedents he would be disposed
to rule otherwise, and I think anybody would admit that the mere fact
that the Constitution makes it the duty of Congress to provide for a
census does not necessarily decide in what way the committee shall
bring up that bill. It does not give the chairman of any one
committee--the Committee on the Census or any other--the right to bring
up any particular bill at any particular time. It really is a matter
for Congress to decide by its rules how and in what way a bill should
be brought up. The rules would naturally provide for it. It is simply
our duty to pass a bill, but not any particular bill at any particular
time.
It is the duty of Congress under the Constitution to paw
appropriation bills for the expenses of the Government; but no one has
ever contended that the Appropriation Committees derive their privilege
from the Constitution, but it is derived from the rules of the House.
-----------------------------------------------------------------------
\1\ Second session Sixty-first Congress, Journal, p. 444. Record, p.
3290.
\2\ Joseph G. Cannon, of Illinois, Speaker.
\3\ Second session Sixty-fifth Congress, Record, p. 8130.
Sec. 51
The Speaker \1\ overruled the point of order on the ground that the
bill was in compliance with a mandatory provision of the Constitution,
and under the decisions of former Speakers of the House the privilege
of such bills was too well established to be questioned.
51. A bill making an apportionment of Representatives presents a
question of constitutional privilege.
A motion to go into Committee of the Whole to consider a bill being
made, the House expresses its wish as to consideration by passing on
this motion, and not by raising the question of consideration.
On October 14, 1921,\2\ Mr. Isaac Siegel, of New York, as a
privileged question, moved that the House resolve itself into the
Committee of the Whole House on the state of the Union for the
consideration of the bill (H. R. 7882) providing for reapportionment of
Representatives in Congress.
Mr. Thomas L. Blanton, of Texas, and Mr. Otis Wingo, of Arkansas,
made the point of order that the motion was not privileged.
The Speaker \3\ overruled the point of order.
Thereupon Mr. Blanton demanded that the question of consideration be
put.
The Speaker held that the motion to go into the Committee of the
Whole raised the question of consideration and overruled the point of
order.
52. A motion to go into the Committee of the Whole House on the state
of the Union to consider an apportionment bill was formerly held to
take precedence over the motion to go into the committee to consider a
general appropriation bill.
The motion to resolve into Committee of the Whole to consider a
privileged bill is not amendable.\4\
On February 9, 1911,\5\ Mr. Charles F. Scott, of Kansas, moved that
the House resolve itself into the Committee of the Whole House on the
state of the Union for the consideration of the bill H. R. 31596, the
agricultural appropriation bill.
Pending this motion, Mr. Edgar D. Crumpacker, of Indiana, moved that
the House resolve itself into the Committee of the Whole House on the
state of the Union to consider the bill (H. R. 30566) for the
apportionment of Representatives in Congress among the several States
under the Thirteenth Decennial Census.
The Speaker \6\ said:

The gentleman from Indian rose for the purpose of submitting a motion
to the House that it do resolve itself into the Committee of the Whole
House on the state of the Union for the purpose of considering the bill
referred to--the apportionment bill--reported from the Committee on the
Census. It seems to the Chair the gentleman calls up a matter which
heretofore has been held, with one exception, uniformly to be a
question of constitutional privilege, and the Chair will recognize the
motion of the gentleman from Indiana.
-----------------------------------------------------------------------
\1\ Champ Clark, of Missouri, Speaker.
\2\ First session Sixty-seventh Congress, Journal, p. 483; Record, p.
6307.
\3\ Frederick H. Gillett, of Massachusetts, Speaker.
\4\ However, see clause 5 of Rule XXIV.
\5\ Third session Sixty-first Congress, Record, p. 2205.
\6\ Joseph G. Cannon, of Illinois, Speaker.
Sec. 53
Thereupon Mr. Scott, rising to a parliamentary inquiry, asked if it
would be in order to offer his motion as an amendment to the motion of
the gentleman from Indiana.
The Speaker replied:

Those motions under the rule in the practice of the House have not
been considered as amendable, since no time would be saved and no
purpose would be effected.

53. The Virginia election case of Parsons v. Saunders, in the Sixty-
first Congress.
Instance wherein a State legislature twice redistricted the State
between enumerations.
A reapportionment by a State legislature which rendered congressional
districts of the State less compact and contiguous as to territory and
more disproportionate as to population was not disturbed.
On June 21, 1910,\1\ Mr. James M. Miller, of Kansas, from the
Committee on Elections No. 2, submitted the report of the majority of
the committee in the Virginia case of John M. Parsons v. Edward W.
Saunders.
The apportionment of 1901 made no change in the number of
Representatives allotted under the previous apportionment to the State
of Virginia in the House of Representatives, and the congressional
districts of the State established under the apportionment of 1891
remained unchanged until 1906, when a complete reapportionment was
made. In 1908 the State again apportioned its congressional districts
and among other changes transferred Floyd County from the fifth
district to the sixth district.
Prior to the State apportionment of 1908 the population of the fifth
and sixth districts was 175,597 and 181,571, respectively. As the unit
of population under the act of 1901 was approximately 180,000, the
fifth district was already below and the sixth district above the
statutory unit, a disparity which the transfer of Floyd County further
increased by reducing the population of the fifth district to 160,191
and increasing that of the sixth district to 196,959.
It is apparent from the testimony of both contestant and contestee
that the transfer also tended to reduce the compactness and to some
extent the contiguity of territory of both districts.
It was charged by the majority of the committee and tacitly conceded
by the minority that the change in the two districts was dictated
largely by political considerations.
As there were practically no disputed questions of fact involved, the
case resolved itself largely into a question as to whether the State
redistricting act of 1908 was violative of the Federal Constitution,
the apportionment act of 1901, and the constitution of the State of
Virginia.
The act of 1901 provides that the Members of the House to which each
State is entitled shall be selected by--

districts composed of contiguous and compact territory, containing as
nearly as practicable an equal number of inhabitants.
-----------------------------------------------------------------------
\1\ Second, session, Sixty-first Congress, Journal, p. 820; p. 3699;
House Report No. 1095.
Sec. 53
Article 5, section 55, constitution of Virginia, quotes the express
language of the Federal statute as follows:

The general assembly shall by law apportion the State into districts
corresponding with the number of Representatives to which it may be
entitled in the House of Representatives of the Congress of the United
States, which districts shall be composed of contiguous and compact
territory containing, as nearly as practicable, an equal number of
inhabitants.

The majority report points out:

Historically these provisions of the statute of the United States, as
of the constitution of Virginia, were clearly intended to constitute
restraints upon legislative discretion so as to prevent the well-known
vicious political device of forming congressional or other legislative
districts for mere partisan purposes
These restrictions upon the legislative power are:
1. Legislative districts must be composed of contiguous territory.
2. Legislative districts must be composed of compact territory.
3. Legislative districts must contain an equal number of inhabitants.
4. The only qualification to these requirements is the phrase ``as
nearly as practicable.''
The rule is well established that the Constitution must be so
construed that every word and phrase of the organic law shall be given
meaning and purpose; also that constitutional provisions are mandatory.

As to contiguity, the majority say:

1. Contiguity: An inspection of the map of the district would seem to
show that notwithstanding the taking of Floyd County out of the body of
the district, thereby nearly severing it into two parts, there still
remained an apparent strip of contiguity 10 miles in width measured in
a straight line across. The evidence before the committee, however,
shows conclusively that at this point, running from the boundary of
Floyd County across to the state line, there is a mountain ridge which
prevents public travel by road between the inhabitants of the one halt
of the district with the inhabitants of the other half, except by going
south into the adjoining State or north into the county of Floyd. This
mountain barrier destroys in fact, if not in form, the apparently small
strip of contiguity shown upon the map of the district.

To which the minority reply:

So far as Floyd was concerned, her natural interests and trade
relations were with the sixth and not the fifth district. Her people
are contiguous to the railroads in the sixth and trade with the towns
on the lines of these roads. She has practically no trade relations
with the fifth.
It is claimed in the majority report that the fifth Virginia district
further offends against the Federal statute on the ground that it is
not contiguous and compact territory. The objection on the score of
contiguity is certainly not well taken, for the district is composed of
a number of counties which touch each other in succession, as will be
seen from the diagram and map filed. Contiguity means actual contact,
nothing else, and the statute does not contemplate that each county in
the district shall touch every other county, even if such a thing
should be possible. It is stated in the report of the majority that as
at present formed, a mountain ridge prevents public travel by road
between the inhabitants of one portion of the district and the other,
save by going through Floyd or North Carolina. The map to which the
report refers shows that if the road from Patrick to Carroll goes
through Floyd at all, it barely crosses, for the most insignificant
distance, a sharp point which Floyd thrusts into Patrick. South of this
road the map shows another road from Patrick into Carroll. The majority
report further states that there is an apparent strip of contiguity 10
miles in width, measured in a straight line, across. This is intended
to show that the counties are not contiguous save for this distance.
But this is a mistake. The same map will show that, owing to the
configuration of the two counties, they run together for as much as 30
miles, according to the map. The 10 miles is measured entirely in the
county of Patrick. But granting, for the sake of argument, that the
most convenient access from Patrick to Carroll would be through
Sec. 53
a small part of Floyd, what would it prove? There are many districts in
which the most convenient means of access from one portion of the
district to another is through some other district.

On the question of compactness, the majority claim:

2. Compactness: An examination of the map of the fifth and sixth
districts prior to this special apportionment of 1908 reveals the fact
that the outline of the fifth district was fairly compact, but that the
sixth district was abnormally elongated, with a tier of counties upon
the other, extending in the form of a ``shoestring'' over the northern
half or more of the fifth district. The removal of Floyd County under
the apportionment act of 1908 from the body of the fifth district
clearly destroyed its former compact form, and grossly aggravated the
lack of compactness of the sixth district by attaching Floyd County to
the extreme end of the excessively abnormal district.

In answer the minority assert:

But as in the matter of population, so in the respect of compactness
the fifth Virginia district does not offend in any marked or striking
degree; to such a degree, in comparison with other districts created in
other States, that on this ground the act of the legislature of a State
should be set aside, and the results of an admittedly honest election
be nullified. For the purposes of comparison, the rasps of a number of
districts, taken from the Congressional Directory for 1910, are
submitted in this connection.

The majority conclude:

The phrase, ``as nearly as practicable,'' indicates that these
constitutional requirements do not seek to enforce perfection. Absolute
contiguity, compactness, and equality of inhabitants are impossible of
attainment. Mr. Webster discussed the general subject of apportionment
in the Twenty-second Congress, first session, in an elaborate report,
and with singular clearness and force laid down this rule:
``That which can not be done perfectly must be done in a manner as
near perfection as can be. If exactness can not, from the nature of
things, be attained, then the greatest practicable approach to
exactness ought to be made.''
Applying the Webster rule to this case, we can not find any
approximation toward the exact truth, exact right, or exact justice; on
the contrary, we find that the State legislature of Virginia turned its
back on these constitutional requirements and deliberately moved away
from them.
The basic idea underlying the word apportionment suggests an
approximation to the truth, to the right, to equality, and to justice.
The very purpose of an apportionment every 10 years is solely to
approximate more closely a just and fair equality of representation by
congressional districts. Can anyone say that this subsequent change of
districts of the act of 1908 was an apportionment? On the contrary, it
appears to us that it was a perversion of the term. It was a violation
of the spirit and the meaning of an apportionment under the
Constitution, and may be rightly declared no apportionment at all.

The majority report then cites in support of its conclusions the
decisions of higher courts in a number of cases and continues:

After applying every reasonable and fair test suggested by common
sense and judicial authority we have been impelled to this conclusion:
This case presents as conclusive evidence of willful and deliberate
legislative disregard of the fundamental constitutional requirements of
contiguity, compactness, and equality of inhabitants as has come to the
attention of the committee in reviewing the decisions of the courts of
the various States of the Union that have declared similar enactments
null and void. The only and the specific purpose of the act of 1908 in
taking the county of Floyd out of the Fifth District and transferring
it to the Sixth District, as appears from the evidence, was the
political advantage that did result in making a close district barely
safe for the dominant political party of the State.
This committee is a judicial tribunal. We have not the right to
consider expediency or policy, politics, or personality. We have but to
decide the case upon the broad lines of justice as determined
Sec. 53
by the facts, the law, and the Constitution. But so far as we may go in
considering the effect of our decision, we believe that it will shut
the door of the House of Representatives to one of the most insiduous
and dangerous political offenses that can menace democratic government.
Our conclusion is, therefore, that the redistricting act of 1908 of
Virginia does not conform to nor comply with the Constitution of the
United States, the United States apportionment act of the Twelfth
Census. nor the constitution of the State of Virginia, and is null and
void, and that Floyd County is still a part of the Fifth Congressional
District.

The minority report also cites various judicial decisions, and
deduces:

the question of whether a particular apportionment is fair or unfair,
just or unjust, in the ordinary acceptation of the terms, ought not to
enter into this determination at all. All apportionments are political
and are generally regarded by the opposing party as unfair or unjust.
There is practically no apportionment which is made by a political
organization which could not be re-formed so as to make it fairer and
more just to the opposing organization. The proper question for
determination is whether this body has the right to interfere with the
apportionments made by the States, or whether, if it possesses that
power, the interests of the Republic would be forwarded by an attempt
on its part to exercise the same in some universal fashion. If it is to
be exercised at all, it should not be exercised capriciously or
spasmodically, but universally, so as to compel every district in the
United States to be so constructed that in conformity with the statute
it will be contiguous and compact, containing, as nearly as practical,
an equal number of inhabitants.

In contravention of the contentions of the majority relative to
disparity in population, the minority list districts in various States
showing even greater disparity and contend:

Many other disparities equally striking might be furnished, but these
will suffice. Two things will be noted upon examination of these
figures. First, the wide differences that the States have made in the
relative populations of the districts which they have created; second,
that if the fifth Virginia district is an unconstitutional formation by
reason of the disparity of its population with that of the sixth, there
are many other districts in the country at large offending in a much
greater degree, and therefore calling for rectification. But it is
submitted that the existence of these greater disparities in other
districts, which make the districts in which they occur
unconstitutional formations, in the view of the majority, merely tends
to show from another standpoint that the States have not considered
that their right to make these disparities was limited by any
constitutional authority.

In conclusion the minority took the ground:

If gerrymandering is the outcome of the exercise of uncontrolled
political power under certain familiar conditions, it is difficult to
see how the disease will be cured by transferring the power to
accomplish it from a number of diverse political bodies to one central
body, which will be operated upon by the same considerations as the
members of the smaller bodies. If Congress is to undertake the exercise
of this authority, conceding that this body possesses it, then it ought
to be done upon the theory that its assumption and exercise will be in
the general public interests. What indication has been afforded that
such has been the case, or would be the ease? The latest illustration
of scientific arrangement was afforded in the ease of Oklahoma, when
the enabling act of Congress created districts in that State with a
population difference of 89,733, and scientifically grouped the
democratic majorities in such fashion that one democratic district had
a majority of about 25,000. The remedy offered for the disease does not
commend itself. In lieu of a number of individual gerrymanders,
effected by different political organizations, in different States, and
working out some kind of equality, as pointed out by the report in
Davison v. Gilbert, we win have one universal gerrymander, coextensive
with the limits of the country. The effect of this new policy in
unsettling tenure of seats will be intolerable. No Member would know
when he would be secure from a contest, based on the grounds of
disparity of population or irregularities in the physical make-up of
the district. The opportunity to make a universal gerrymander would be
a
Sec. 54
stake well worth the scramble of the party organizations, since it
might mean a tenure of power extending over an indefinite period of
years.

The majority report recommended the following resolutions:

Resolved, That Edward W. Saunders was not elected to membership in
the House of Representatives of the United States in the Sixty-first
Congress and is not entitled to a seat therein.
Resolved, That John M. Parsons was elected to membership in the House
of Representatives of the United States in the Sixty-first Congress
from the Fifth District of Virginia and is entitled to a seat therein.

However, on January 24, 1911,\1\ on motion of Mr. Miller, by
unanimous consent, the report was recommitted to the committee, and was
not again reported to the House, Mr. Saunders retaining his seat.
54. The Texas election case of E. W. Cole in the Sixty-eighth
Congress.
The House denied the claim of a State to representation greater than
the apportionment had given her when the reasons for such claim applied
to many other States.
The Clerk declined to enroll a person bearing regular credentials,
but claiming to be a Representative in addition to the number
apportioned to his State.
Since the enfranchisement of women constitutional provisions relating
to apportionment are to be read in connection with the nineteenth
amendment.
The constitutional provision authorizing an apportionment act based
upon each succeeding census is not mandatory, but such enactments are
discretionary with Congress.
On December 3, 1923,\2\ at the organization of the House, the Clerk
announced that a concurrent resolution by the Legislature of the State
of Texas had been received, reciting:

Under the constitutional provision providing for representation of
the States in the House of Representatives on a basis of numerical
population, and basing its action on the census of 1920, the State of
Texas proceeded to elect a Representative at Large on the ground that
the census of 1920 entitled the State of Texas to one more
Representative than it now has in Congress, making the number 19
instead of 18.
In May, 1922, E. W. Cole, of Austin, Tex., had his name placed on the
ballot to be voted on in the primary election in the selection of
democratic nominees for various offices of the State as well as for
Representative at Large in Congress. Mr. Cole secured recognition on
the ballot through the Democratic State executive committee according
to his brief filed with his claim. He further alleges that in July,
1922, at the primary election he received practically the unanimous
vote of the Democratic Party of Texas for the nomination for the
position of Representative at Large.
The Governor of the State of Texas at the proper time, it is alleged,
issued his proclamation calling for the election of the various Members
of Congress and the State officers in November, 1922, and among other
provisions included in the proclamation was one for the election of a
Representative at Large in Congress for the State of Texas.

A certificate of election issued by the Governor of the State of
Texas accrediting E. W. Cole, as elected from the State at Large, had
also been received by the Clerk.
-----------------------------------------------------------------------
\1\ Third session Sixty-first Congress, Journal, p. 206; Record, p.
1398; Moore's Digest, p. 43.
\2\ First session Sixty-eighth Congress, Record, p. 7.
Sec. 54
The claim was referred to the Committee on Elections No. 1 and on
March 29, 1924, Mr. John M. Nelson, of Wisconsin, submitted the report
of the committee, who were unanimous in holding that in view of the
failure of Congress to amend the apportionment act of 1913 fixing the
number of Representatives in the House from the State of Texas at 18,
the claimant could not be admitted.
In its statement of the case the report \1\ says:

Claimant alleges that his name was duly placed upon the democratic
ballot as the candidate for that party in the general election held in
November, 1922, and that the Republican Party of the State of Texas had
placed upon its ballot as a candidate for the same office the name of
Herbert Peairs.
Claimant alleges that in the election November, 1922, the said
Herbert Peairs received 46,048 votes and that claimant received 265,317
votes.
Claimant further alleges that thereafter the election board of Texas
canvassed the result of the said general election, and declared that E.
W. Cole, the claimant, was duly elected as Representative at Large from
the State of Texas, and that thereafter in due time and form the Hon.
Pat. M. Neff, Governor of the State of Texas, issued, signed, and
delivered a certificate of election to claimant as Representative at
Large for the State of Texas, and that said certificate of election was
duly filed with the Clerk of the House of Representatives of the
Congress of the United States. Claimant further alleges that the Clerk
of the House of Representatives received and is holding said
certificate of election, but has refused to file the same or to
recognize the claims of the claimant for a seat in the House of
Representatives of Congress and has refused to recognize the
appointment of a secretary and other privileges to which the said E. W.
Cole would be entitled as a Representative in the House of
Representatives in the Sixty-eighth Congress.

After citing section 11 of Article XIV of the Constitution relating
to apportionment the report continues:

It may be observed that male citizens only are referred to in this
section of the Constitution, but by the nineteenth amendment to the
Federal Constitution women were enfranchised and now those
constitutional provisions have to be read in connection with the
nineteenth amendment.

As to claimant's contention that the reenactment of an apportionment
act based upon each succeeding census is mandatory, the committee hold:

While it is true that some color may be given a claim that long-
established custom has fixed that time for Congress to pass a
reapportionment act the first session of Congress following the taking
of the census, it still remains custom and not a constitutional
provision nevertheless.

The committee indicate two obstacles to the seating of the claimant.
The first is:

The number of Representatives fixed by an act of the Congress in
1913, based upon the official census of 1911, is 435. That act of
Congress was passed by the House, then by the Senate, and was signed by
the President of the United States. Your committee is of the opinion
that the House of Representatives alone could not amend or modify an
act of the whole Congress by increasing the membership of the House of
Representatives to 436 without the act of the House being passed upon
by the United States Senate and the President of the United States.
Consonant with that view, then, your committee is of the opinion that
if this claimant were to be seated he would have to be seated through
an act of Congress to increase the membership of the House to 436.

The second is:
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\1\ House Report No. 398.
Sec. 54
Even though the House might attempt by its own act and independently
of the Senate and of the President of the United States to seat
claimant, thereby increasing the membership of the House by one Member
and increasing the representation of the State of Texas by one, there
would be no fund with which to pay the salary, clerk hire, mileage, and
other perquisites and expenses of claimant, because the appropriation
from which salaries, clerk hire, mileage, and other expenses of Members
of the House of Representatives is paid is an appropriation passed by
an act of the whole Congress and approved by the President of the
United States, and therefore, even though claimant were seated, his
salary and perquisites would have to be paid by a special act of
Congress.

The committee therefore conclude:

To attempt to settle questions of the nature involved in this case by
seating the claimant would be to disorganize the House of
Representatives. It would bring up other questions, such as the action
to be taken in the cases of States which are now overrepresented, due
to decrease in their population.
Your committee is of the opinion that in cases where States elect
Representatives at large in the belief that such States are entitled to
greater representation than they now have, the proper procedure is for
such claimants to find their remedy through a bill presented to the
Congress for action rather than through a report from an elections
committee.

Accordingly the report recommended the following resolution:

Resolved, That E. W. Cole is not entitled to a seat in this House as
a Representative from the State of Texas in the Sixty-eighth Congress.

The resolution was, on the 3d of June, 1924,\1\ agreed to by the
House without debate or division.
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\1\ Journal, p. 636; Record, p. 10324.