[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 2.  Enrolling Members; Administering the Oath]
[Â§ 4. The Clerk's Roll]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 102-112]
 
                               CHAPTER 2
 
               Enrolling Members; Administering the Oath
 
Sec. 4. The Clerk's Roll

    The Clerk's roll is the list of Members-elect, arranged 
alphabetically by states, which the Clerk prepares in advance of the 
convening of a new Congress based on the certificates of election 
received by his office.(7) That

[[Page 103]]

particular roll is called only once, directly after the Congress 
convenes, in order to establish a quorum of Representatives-elect to 
proceed to the organization of the House.(8) The roll does 
have a further purpose, in that it constitutes the first official 
declaration as to which persons claiming seats in the House are 
entitled to participate in the proceedings prior to election of the 
Speaker, and in the election itself.(9)
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 7. See 2 USC Sec. 26, directing the preparation of the Clerk's roll. 
        As to the form of credentials and their transmission to the 
        Clerk's office, see Sec. 3, supra.
 8. See, generally, Ch. 1, Sec. 5, supra, for the procedure at 
        organization when the Clerk is presiding. The roll to elect the 
        Speaker is called alphabetically on a roll call vote, with each 
        Member casting his vote by declaring the name of the nominee of 
        his choice. (See Ch. 1, Sec. 6, supra.) For the relationship 
        between the Clerk's roll and regular rolls of the House, see 
        Sec. 4.1, infra.
 9. As the roll to elect a Speaker is based exclusively upon the 
        Clerk's roll, a claimant to a seat who is not enrolled will not 
        be called on the roll call vote (see Sec. 2, supra, for the 
        right to participate of Members-elect). For the proposition 
        that claimants not enrolled may not participate in organization 
        until the House takes some action on their claims, see 1 Hinds' 
        Precedents Sec. Sec. 83-86. On the other hand, Members-elect 
        enrolled may participate before the House decides that they 
        were enrolled on insufficient evidence (see 1 Hinds' Precedents 
        Sec. 366).
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    As indicated above,(10) every Member-elect with regular 
credentials on file with the Clerk has a right to be included on the 
Clerk's roll;(11) whether or not a specific set of 
credentials shows the person named therein to be regularly elected is a 
matter solely for the decision of the Clerk,(12) who is the 
only official authorized to prepare the Clerk's roll (unless his office 
is vacant, in which case the Sergeant at Arms, or in his absence, the 
Doorkeeper, performs the Clerk's functions).(13)
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10. Sec. 3, supra.
11. In Page v U.S., 127 U.S. 67(1888), the Supreme Court held, inter 
        alia, that a Representative-elect whose credentials showed he 
        was regularly elected must have been placed on the Clerk's roll 
        under Sec. 31 of the Revised Statutes (now, 2 USC Sec. 26).
12. See the provisions of 2 USC Sec. 26, which do not specify the 
        required form of credentials, or the factors for determining 
        whether they show the Member-elect was ``regularly elected.'' 
        In early times, a committee examined the credentials with the 
        object of ensuring the regularity (see 1 Hinds' Precedents 
        Sec. Sec. 386, 387). Mere enrollment does not entitle a Member-
        elect to a seat, however, as the House determines both the 
        prima facie and final entitlement to that right (see Sec. 6, 
        infra); the House may review the action of the Clerk in 
        enrolling Members-elect (see, generally, 1 Hinds' Precedents 
        Sec. Sec. 589-610).
13. See 2 USC Sec. 26. For a recent occasion where the Doorkeeper 
        assumed the Clerk's functions, see Sec. 4.2, infra.
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    Whether or not the Clerk may go behind the document of creden

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tials itself to determine whether to enroll a particular Member-elect 
depends on the specific circumstances of the case. In past Congresses, 
Members-elect have been enrolled where there was no certificate but 
there were communicated official statements from state authorities 
showing election return,(14) or where the credentials were 
irregular but state law forbade rejection of credentials for mere 
informalities.(15) On at least one occasion, the Clerk has 
inquired into the age qualification of a Member-elect who was not yet 
25 years old when his credentials were presented, but who reached the 
age limit after Congress had convened.(16) In contemporary 
practice, the Clerk will not enroll a Member-elect unless credentials 
regular in form and in strict compliance with state law have been 
received.(17)
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14. See 6 Cannon's Precedents Sec. 597. For a recent instance of such 
        action, see Sec. 4.4, infra.
15. See 6 Cannon's Precedents Sec. 557.
16. See 1 Hinds' Precedents Sec. 418. For a full discussion of the 
        meeting of qualifications before appearing to take the oath, 
        but after the election or even after the convening of Congress, 
        see Ch. 7, infra. A line of precedents in both the Senate and 
        House suggest that a Member-elect lacking the age and 
        citizenship requirements of U.S. Const. art. I, Sec. 2, clause 
        2, at the time of election may forestall presenting his 
        credentials and taking the oath until he satisfies those 
        qualifications, after the convening of Congress.
17. Strenuous opposition was voiced in the House on the last occasion 
        when the Clerk enrolled a claimant to a seat whose credentials 
        had not yet been received (see Sec. 4.4, infra). The Clerk has 
        enrolled a Member-elect despite an order of the state supreme 
        court restraining the issuance of the certificate of election 
        (see Sec. 4.3, infra). For similar past instances where 
        credentials already delivered to the Clerk took precedence over 
        adverse decisions by the highest court of the representative 
        state, see 1 Hinds' Precedents Sec. Sec. 56, 57.
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    The Clerk's roll is directed to be read at the opening of a 
Congress by the Clerk, or by the officer who assumes his functions. The 
roll is called in the same manner in which it is prepared, 
alphabetically by state.(18)
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18. See Sec. 4.1, infra.
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    Occasionally it is necessary to correct the roll, due to technical 
errors or due to changes in the membership. The roll has been corrected 
on the floor of the House by reference to credentials, when the roll 
contained a typographical error;(19) where there are alleged 
errors in substance, the Clerk's roll will not be corrected until the

[[Page 105]]

time for the administration of the oath to Member.(~20~) 
Before the House meets, the Clerk may strike from the roll names of 
Members-elect whose certificates of election are on file, but who have 
resigned or who have died before the convening of a 
Congress.(1) However, such corrections are only made by the 
Clerk pursuant to official declarations by the executive of the state 
of representation. For example, in the 93d Congress, the name of a 
Member-elect whose seat the Governor had declared vacant pursuant to a 
presumptive death verdict was stricken from the Clerk's 
roll.(2) But the name of a companion Member-elect, who had 
disappeared under the same circumstances as the former, was not 
stricken from the roll, since the state of representation had not 
declared his seat vacant nor recognized the possibility of presumed 
death.(3)
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19. See 1 Hinds' Precedents Sec. 25 (name of state Governor, instead of 
        Member-elect, called by error).
20. The Clerk may not entertain motions to ``correct'' the roll by 
        substituting the name of a claimant for the name of a Member-
        elect (see 1 Hinds' Precedents Sec. Sec. 22-24). Challenges, 
        which attempt to add the name of one person to the roll and to 
        strike the name of another, are not made until the Speaker 
        indicates that the administration of the oath is in order (see 
        Sec. 6, infra).
 1. See Sec. Sec. 4.6, 4.8, infra. For an exception to that procedure, 
        see Sec. 4.7, infra (where a Member-elect died moments before 
        Congress convened, his name was not stricken from the roll 
        until the House was informed of the death). The Clerk's power 
        to strike the names of dead and resigned Members-elect is 
        traditional (see 1 Hinds' Precedents Sec. Sec. 26-28).
 2. See Sec. 4.8, infra.
 3. See Sec. 4.9, infra. Subsequently, the House itself declared the 
        seat vacant, pursuant to presumptive death evidence, and the 
        Member's-elect name was then stricken from further roll calls.
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    The composition of the Clerk's roll is determinative of those 
persons entitled to be counted for the initial quorum of the House, and 
those persons entitled to vote for Speaker at the opening of a new 
Congress.(4) In that respect, the regular roll differs 
substantially from the roll to establish a quorum or to elect a new 
Speaker at the beginning of a second session.
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 4. See Sec. 2, supra.
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    When the Speaker died between sessions of the 87th Congress, and 
several Members-elect appeared to fill vacancies at the beginning of 
the second session, those Members-elect were not called to establish a 
quorum or to elect a new Speaker, although their certificates of 
election were on file with the Clerk. They could not be sworn until 
after the Speaker was elected, and the regular roll of the House 
includes only those Mem

[[Page 106]]

bers who have qualified for membership by taking the 
oath.(5) Therefore, although the Clerk's roll furnishes the 
preliminary basis for the regular roll of the House, the latter 
reflects changes in membership occurring after Congress convenes, such 
as adverse determination of election contests, resignations of Members-
elect who decline to take the oath in favor of another office, and 
deaths.(6)
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 5. See Sec. 4.11, infra. On the same occasion, resignations of Members 
        received during adjournment were not laid down prior to the 
        vote for Speaker, although their names had been stricken from 
        the roll of the House (see Sec. 4.10, infra). That practice is 
        to be distinguished from the procedure at the convening of a 
        new Congress, where the Clerk announces before the election of 
        the Speaker the names of those resigned Members-elect whose 
        names have been stricken from the roll. See, e.g., announcement 
        of the Clerk as to a vacancy in the 92d Congress, 117 Cong. 
        Rec. 10, Jan. 21, 1971.
 6. After organization, the roll of the House consists of those Members 
        chosen, sworn, and living whose membership has not been 
        terminated by resignation or by the action of the House. See 4 
        Hinds' Precedents Sec. Sec. 2889 2890; 6 Cannon's Precedents 
        Sec. 638.
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Form and Call of the Roll

Sec. 4.1 Unlike regular roll calls of the House, the Clerk's roll to 
    establish a quorum of Representatives-elect at the convening of a 
    new Congress is prepared and called alphabetically by states.

    The Clerk's roll at the beginning of the 92d Congress was both 
prepared and called by state delegations, listed 
alphabetically.(7) The roll to establish a quorum has taken 
that form at the beginning of every Congress.(8) However, 
unless the roll is taken by electronic device (see Chs. 20, 30, infra) 
regular roll calls of the House are required to be called 
alphabetically by surname under House Rule XV.(9) (After a 
quorum is established at the opening of a new Congress, the roll to 
elect a Speaker is called alphabetically, to which the Member responds 
by calling the surname of the nominee of his choice.)(10)
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 7. 117 Cong. Rec. 9, 10, 92d Cong. 1st Sess., Jan. 21, 1971.
 8. In former Congresses, the roll to establish a quorum at the 
        beginning of a new session during the term of a Congress was 
        also called by states (see 1 Hinds' Precedents Sec. 83).
 9. Rule XV clause 1, House Rules and Manual Sec. 765 (1973).
10. See, e.g., 117 Cong. Rec. 10, 11, 92d Cong. 1st Sess., Jan. 21, 
        1971. See also 1 Hinds' Precedents Sec. Sec. 204-222.
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Sec. 4.2 Where the Clerk has died between Congresses, and in

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    the absence of the Sergeant at Arms, the Doorkeeper of the House 
    directs the call of the roll of Representatives-elect, prepared 
    under his auspices.

    On Jan. 3, 1947,(11) the opening of the 80th Congress, 
the Doorkeeper of the House, Ralph R. Roberts, directed the call of the 
roll to establish a quorum and to elect a Speaker. The Doorkeeper 
assumed the functions of the Clerk of the House, in preparing the roll 
and directing the call thereof, pursuant to title 2, United States 
Code, section 26, appointing the Doorkeeper to perform those duties in 
the absence of both the Clerk and the Sergeant at Arms.
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11. 93 Cong. Rec. 33, 34, 80th Cong. 1st Sess.
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Clerk's Review of State Law

Sec. 4.3 A certificate of election in due form having been filed, the 
    Clerk placed the name of the Member-elect on the roll, although he 
    was subsequently advised that the state supreme court had issued a 
    writ restraining the Secretary of State from issuing such 
    certificate.

    On Jan. 3, 1949,(12) Clerk John Andrews, of 
Massachusetts, made the following announcement:
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12. 9.5 Cong. Rec. 8. 81st Cong. 1st Sess.
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        A certificate of election is on file in the Clerk's office, 
    showing the election of John C. Davies as a Representative-elect to 
    the Eighty-first Congress from the Thirty-fifth Congressional 
    District of the State of New York.
        Several communications have been received from the executive 
    deputy secretary of state for the State of New York informing the 
    Clerk that a case is pending before the supreme court, Albany 
    County, N.Y., and that the said secretary of state is restrained 
    from certifying the election of a Representative from this 
    congressional district. However, in view of the fact that a 
    certificate of election in due form has been filed with the Clerk 
    by John C. Davies, the Clerk has therefore placed his name on the 
    roll. (13)
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13. Under New York law, although Congress is the final judge of the 
        qualifications of its own Members, until the certificate of 
        election has been transmitted to and acted upon by Congress, 
        New York state courts are open to a candidate who alleges that 
        the certificate is being issued in violation of the law. People 
        ex rel. Brown v Board of Suprs. of Suffolk County, 216 N.Y. 
        732, 110 N.E. 776 (1915) (mem.).
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Sec. 4.4 The House may authorize the Speaker to administer the oath of 
    office to a Member-elect who appears with

[[Page 108]]

    out credentials but whose name has been placed upon the roll of 
    Members-elect by the Clerk, pursuant to a communication from the 
    state Governor.

    On Mar. 9, 1933,(14) the House adopted a resolution 
authorizing the administration of the oath of office to Mr. John G. 
Utterback, of Maine, who reported on opening day without a signed 
certificate of election from the Governor of the State of Maine. The 
Clerk had placed the name of Mr. Utterback upon the Clerk's roll 
pursuant to a letter from the Governor of Maine stating that although 
the Member-elect apparently received a majority of the votes cast in 
the district the Governor was without authority to issue credentials 
due to the terms of a state law which required the concurrent action of 
the Governor and executive counsel before an election certificate could 
be issued.(l5)
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14. 73 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
15. See the remarks, in opposing the enrolling of and the 
        administration of the oath to the Member-elect without 
        credentials, of Mr. Bertrand Snell (N.Y.), arguing that the 
        action of the House and of the Clerk set a dangerous precedent. 
        73 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
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Adding New States to Roll

Sec. 4.5 The Clerk announced receipt of the proclamation of statehood 
    for a new state during the call of the Clerk's roll, and directed 
    that the new state be called.

    On Jan. 7, 1959,(16) after the commencement of the call 
of the Clerk's roll on opening day, and after the call of the names of 
Members-elect from Alabama, the Clerk made the following announcement:
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16. 105 Cong. Rec. 11, 86th Cong. 1st Sess.
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        A certified copy of the Presidential proclamation indicating 
    that the Territory of Alaska has qualified as a State pursuant to 
    provisions of law has been received.
        The clerk will proceed.

    The Representative-elect from Alaska was then called.

Correcting the Roll for Deaths

Sec. 4.6 At the opening of a Congress the Clerk informs the House of 
    vacancies in the Clerk's roll, occasioned by the death of Members-
    elect.

    On Jan. 3, 1973,(17) the opening day of the 93d 
Congress, the Clerk announced after the call of the Clerk's roll, which 
did not include the name of Member-elect George W. Collins, that the 
death of that Member-elect created a va

[[Page 109]]

cancy in the state delegation of Illinois.
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17. 119 Cong. Rec. 12, 93d Cong. 1st Sess.
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Sec. 4.7 On an exceptional occasion, where a Representative-elect whose 
    certificate of election was on file with the Clerk died moments 
    before the House convened, his name was included on the Clerk's 
    roll until the House was informed of his death after assembly.

    On Jan. 10, 1967,(18) the opening day of the 90th 
Congress, the name of Member-elect John E. Fogarty, of Rhode Island, 
was included on the Clerk's roll to establish a quorum, although Mr. 
Fogarty had died in his office shortly before the House was to convene. 
His name was not stricken from the roll of the House until the Clerk 
informed the House of his death, shortly after the call of the roll.
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18. 113 Cong. Rec. 11, 12, 90th Cong. 1st Sess.
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Sec. 4.8 The Clerk of the House omitted from the roll at the beginning 
    of the 93d Congress the name of a Representative-elect, pursuant to 
    the receipt of judicial certification of presumptive death, and of 
    the state executive's declaration of vacancy.

    On Jan. 3, 1973,(19) the opening day of the 93d 
Congress, the Clerk of the preceding House, W. Pat Jennings, directed 
the call of the Clerk's roll to establish a quorum. The reading clerk 
announced that the delegation of the State of Alaska was vacant. The 
name of Mr. Nick Begich, Representative-elect at large from that state, 
had been omitted from the Clerk's roll pursuant to the receipt by the 
Clerk of a certified copy of the certificate of presumptive death of 
Mr. Begich. The Clerk also informed the House, after the election of 
the Speaker, that the Governor of Alaska had declared the seat of Mr. 
Begich vacant.
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19. 119 Cong. Rec. 11 et seq., 93d Cong. 1st Sess.
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Sec. 4.9 Where the state of representation did not certify, either 
    through its judiciary or through its executive, the presumptive 
    death of a Representative-elect, his name was placed on the Clerk's 
    roll and not stricken from the roll of the House until the House 
    determined the seat to be vacant.

    On Jan. 3, 1973,(20) the opening day of the 93d 
Congress, Clerk of

[[Page 110]]

the House W. Pat Jennings informed the House that he had placed upon 
the roll of Representatives-elect the name of Mr. Hale Boggs, of 
Louisiana, pursuant to the receipt of his certificate of election. The 
Clerk had, however, omitted from the roll the name of Mr. Nick Begich, 
of Alaska, who had been missing since Oct. 16, 1972, the date of the 
disappearance of an airplane on which Mr. Boggs had also been a 
passenger. Mr. Begich's name had been omitted from the roll pursuant to 
the receipt by the Clerk of a presumptive death certificate from the 
State of Alaska and pursuant to a telegram from the Governor of that 
state notifying the House that he had declared Mr. Begich's seat 
vacant. In Mr. Boggs' case, however, the Clerk had received 
certification from the State of Louisiana stating that no state court 
actions had been instituted to change Mr. Boggs' status or to affect 
the validity of his certificate of election, and stating that the 
Governor himself had taken no action to affect Mr. Boggs' status as a 
Representative-elect. Therefore Mr. Boggs' name had been placed on the 
roll and called to establish a quorum.
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20. 119 Cong. Rec. 15, 93d Cong. 1st Sess.
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    The House subsequently adopted a resolution determining Mr. Boggs' 
seat to be vacant, based on documentary evidence and on the official 
certification by the State of Alaska of Mr. Begich's presumptive death. 
The name of Mr. Boggs was stricken from subsequent roll calls.

    The resolution adopted by the House read as follows:

                                   H. Res. 1

        Whereas a certificate of election has been received by the 
    Clerk of this House showing the election of Hale Boggs as a 
    Representative in the Ninety-third Congress from the Second 
    Congressional District in the State of Louisiana; and
        Whereas Representative-elect Hale Boggs has not appeared to 
    take the oath of office as a Member of this House; and
        Whereas the Clerk of the House of Representatives, acting at 
    the direction of the Speaker of this House for the Ninety-second 
    Congress, has ascertained that Representatives Nick Begich and Hale 
    Boggs, Members of the Ninety-second Congress, together with Russell 
    L. Brown and Don E. Jonz of the State of Alaska, all of whom 
    departed together by plane from Anchorage, Alaska, on October 16, 
    1972, on a flight bound for Juneau, Alaska, have been missing since 
    that date and despite repeated and thorough searches have not been 
    located; and
        Whereas the District Court for the State of Alaska, Third 
    Judicial District, after hearing witnesses and studying all 
    available evidence relative to the disappearance of Representative 
    Begich, Russell L. Brown and Don E.

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    Jonz, has determined that these three men cannot be found alive 
    after such a lapse of time and are presumed dead; and
        Whereas as a result of the findings of the jury in the 
    aforementioned judicial proceeding the judge of the said court has 
    signed certificates of presumptive death with respect to 
    Representative Begich, Russell L. Brown and Don E. Jonz; and
        Whereas no evidence has been presented to this House or is 
    known to it which distinguishes the missing status of 
    Representative-elect Hale Boggs from that of the three men for whom 
    the aforementioned certificates of presumptive death have been 
    issued; Therefore be it
        Resolved, That based on information provided by its Clerk, this 
    House of Representatives hereby determines that there is a vacancy 
    in the Ninety-third Congress in the representation from the Second 
    Congressional District in the State of Louisiana because of the 
    absence of Representative-elect Hale Boggs.
        Resolved, That the Speaker of the House is hereby directed to 
    notify the Governor of the State of Louisiana of the existence of 
    this vacancy so that appropriate measures to fill this vacancy may 
    be undertaken by the Governor pursuant to Article I, Section 2 of 
    the Constitution of the United States.
        Resolved, That the Speaker be authorized to appoint a 
    delegation of Members of this House, together with such Members of 
    the Senate as may be joined, to attend memorial services to be held 
    for the former Majority Leader in New Orleans, Louisiana, on 
    January 4, 1973.
        Resolved, That the Sergeant at Arms of the House be authorized 
    and directed to take such steps as may be necessary to carry out 
    the provisions of these resolutions and that the necessary expenses 
    in connection therewith, as well as any incurred by the Clerk at 
    the Speaker's request, be paid out of the contingent fund of the 
    House.
        Resolved, That the Clerk communicate these resolutions to the 
    Senate, to the Governor of the State of Louisiana, and transmit a 
    copy to the family of the missing Representative-elect Hale Boggs.

Roll to Begin Session

Sec. 4.10 Election of a new Speaker being the first order of business, 
    resignations of Members received during the sine die adjournment 
    after the first session were not laid down prior to the vote, but 
    their names had been stricken from the roll and were not called to 
    establish a quorum or to elect a Speaker at the opening of the 
    second session.(1)
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 1. This practice is distinguished from the procedure at the opening of 
        a new Congress, where the Clerk announces vacancies immediately 
        after the call of the Clerk's roll (which does not include the 
        names of resigned Members) but before the election of a 
        Speaker. See, e.g., announcement of the Clerk as to a vacancy 
        in the 92d Congress, 117 Cong. Rec. 10, January 21, 1971.

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    On Jan. 10, 1962,(2) the opening day of the second 
session, following the death of Speaker Sam Rayburn, of Texas, during 
the sine die adjournment, Clerk of the House Ralph R. Roberts called 
the roll to establish a quorum and proceeded immediately to the 
election of a Speaker. The names of Mr. Frank Ikard, of Texas, and Mr. 
Lester Holtzman, of New York, who had submitted their resignations 
during the sine die adjournment, were not included on the roll to 
establish the quorum or to elect a Speaker. Their resignations were not 
announced until after the election.
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 2. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
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Sec. 4.11 Where the Speaker had died between sessions of the 87th 
    Congress and a new Speaker was elected immediately after the second 
    session had convened, Members-elect to fill vacancies with 
    credentials on file were not called to establish the quorum or to 
    elect a Speaker.(3)
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 3. The procedure followed in this instance differs from the practice 
        at the opening of a new Congress, where all Members-elect with 
        regular credentials are called to establish a quorum and to 
        vote for a Speaker (see detailed discussion at Sec. 4, supra).
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    On Jan. 10, 1962,(4) the opening day of the second 
session, Mr. Henry B. Gonzalez, of Texas, Mr. Joe Waggonner, Jr., of 
Louisiana, and Mr. Lucien N. Nedzi, of Michigan, all Representatives-
elect to fill vacancies, were not sworn in until after the election of 
Speaker John W. McCormack, of Massachusetts. Their names were not 
placed on the roll to establish a quorum or to elect a Speaker.
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 4. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
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