[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 49. Seventy-fifth Congress, 1937-38]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1146-1156]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 49. Seventy-fifth Congress, 1937-38

Sec. 49.1 Roy v Jenks

    In the contested election case of Roy v Jenks in the First 
Congressional District of New Hampshire the Clerk of the House 
transmitted the testimony, papers, and documents to the Speaker on July 
21, 1937,(14) on which date the contested election was 
referred to the committee. These documents accompanied the Clerk's 
letter, which the Speaker laid before the House and ordered printed.
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14. H. Doc. No. 305, 81 Cong. Rec. 7339, 7352, 75th Cong. 1st Sess.; H. 
        Jour. 756.
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    Mr. John H. Kerr, of North Carolina, submitted the privileged

[[Page 1147]]

 report (H. Rept. No. 1521) (15) from the Committee on 
Elections No. 3 on Aug. 13, 1937, which was referred to the House 
Calendar and ordered printed.
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15. 81 Cong. Rec. 8842, 8878, 75th Cong. 1st Sess.; H. Jour. 859, 862.
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    Mr. Charles W. Tobey, of New Hampshire, subsequently made a point 
of order against acceptance of the report by the House, in that it 
violated Sec. 47 of Rule XI, which required the several elections 
committees of the House to make final reports to the House in all 
contested election cases not later than six months from the first day 
of the first regular session of the Congress to which the contestee was 
elected. (The six-month reporting requirement was changed in the 92d 
Congress to a direction to report ``at such time as the committee 
considers practicable in that Congress to which contestee was 
elected.'' Rule XI clause 25, House Rules and Manual Sec. 733 [1971]. 
This requirement was omitted from the rules in the 94th Congress.)
    Mr. Gerald J. Boileau, of Wisconsin, concurred with Mr. Tobey, 
contending, that after the six months' period expired, the Committee on 
Elections lost its privilege of calling up such resolution. Mr. Arthur 
H. Greenwood, of Indiana, replied that the Constitution and the House 
rules give the House the power to decide the question of its own 
membership, which power would be denied should the rule be construed as 
mandatory. Mr. John J. O'Connor, of New York, pointed out that an 
elections committee which for any reason failed to report within six 
months could successfully deprive the House of the opportunity to 
decide the elections of its Members, were the rule to be construed as 
mandatory. Mr. Kerr argued that the federal statutes governing 
contested election cases give each party much longer than six months to 
gather evidence and present it to the House.
    The Speaker,(16) in overruling the point of order, 
stated: (17)
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16. William B. Bankhead (Ala.).
17. 81 Cong. Rec: 8845, 8846, 75th Cong. 1st Sess.
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        The Chair thinks it proper in the construction of this issue 
    not only to take into consideration the verbiage of this rule but 
    also a provision of the Constitution of the United States which has 
    been cited in this argument. Section 5 of article I of the 
    Constitution, in part, provides that each House shall be the judge 
    of the elections, returns, and qualifications of its own Members.
        The Chair is of the opinion that although the terms of the rule 
    are in the language read by the Chair and as argued by the 
    gentleman from New Hampshire, yet, nevertheless, the

[[Page 1148]]

    Chair must look at all the facts in the case in order to reach a 
    decision as to what was the fair intention of the House of 
    Representatives in the adoption of this rule. The Chair refers 
    briefly to the various steps that are authorized under the statute 
    in order to give the contestant and the contestee an opportunity to 
    take evidence, to give proper notice one to the other of the 
    procedures of the case, and to present it finally for the 
    determination of the House of Representatives. The Chair finds on 
    examination that under [former] sections 201, 202, 203, and 223 
    [now Sec. Sec. 382, 383, 386, 391(a), and 393] of title II, United 
    States Code, the contestee and the contestant are allowed no more 
    than 6 months in which to present the evidence in the case to the 
    House for its consideration. So that if they used, as they 
    apparently did in this case, the time that was allowed to them by 
    the statute . . . it would have been physically impossible as a 
    matter of time, for the House to have had the case presented to it 
    at all for its consideration. In this case, according to the letter 
    filed by the Clerk of the House with the Speaker, which may be 
    found in House Document 305, Seventy-fifth Congress, the issue was 
    filed on July 21, 1937, and immediately referred to the Committee 
    on Elections No. 3, and it appears to the Chair that the Committee 
    on Elections has not been dilatory in this matter, but, upon the 
    contrary, has exercised great diligence and dispatch in reaching 
    its conclusion with reference to the issues involved. So that the 
    Chair is under the impression that a fair construction of this 
    rule, taken in connection with the constitutional rights of the 
    contestant and the contestee, taken in connection with the fact 
    that both parties to the issue were entitled to use more than 6 
    months in the preparation of their case, and, taking into 
    consideration the fact that these issues were only presented to the 
    committee on July 21, that a fair construction of the rule under 
    all of the circumstances in this case would indicate that the 
    provisions of this rule properly construed are not strictly 
    mandatory, but directory. Otherwise, the Chair is of opinion that 
    the contestant, or even the contestee, might be deprived not only 
    of his constitutional privilege but under the terms of the statute 
    in such case made and provided it would be made impossible for the 
    issue to be properly presented to the House of Representatives for 
    its determination.
        There is one other matter that the Chair feels justified in 
    taking into consideration in an interpretation of the rule under 
    discussion.
        It will be remembered that the rule in question was adopted in 
    1924, at which time Congress ordinarily did not assemble until more 
    than 1 year had expired after the election of Members, and under 
    that situation the 6-month rule would be within the realm of reason 
    and give a fair opportunity to both parties to the contest to 
    comply with its provisions and the provisions of the statutory law. 
    Since its adoption, however, the so-called ``lame duck'' amendment 
    to the Constitution has been ratified, under the provisions of 
    which the Congress meets in regular session within 2 months after 
    the Members are elected. The Chair is of the opinion that if this 
    status had existed at the time the rule was adopted, that its harsh 
    and impossible terms would never have been agreed to as a perma

[[Page 1149]]

    nent rule of the House of Representatives.
        The contestee and the contestant having each more than 6 months 
    under the statutes to present their case, the Chair is of opinion 
    that under all of the circumstances the fair and reasonable and 
    just interpretation of this rule justifies him in overruling the 
    point of order, and the Chair does overrule the point of order.

    Mr. Bertrand H. Snell, of New York, appealed from the decision of 
the Chair, whereupon Mr. Sam Rayburn, of Texas, moved to lay the appeal 
on the table, which motion was agreed to by a roll call vote of 286 
yeas to 69 nays.
    On Aug. 19, 1937, Mr. Kerr called up as privileged House Resolution 
309,(18) which provided:
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18. 81 Cong. Rec. 9356, 75th Cong. 1st Sess.; H. Jour. 893.
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        Resolved, That Arthur B. Jenks is not entitled to a seat in the 
    House of Representatives in the Seventy-fifth Congress from the 
    First Congressional District of the State of New Hampshire.
        Resolved, That Alphonse Roy is entitled to a seat in the House 
    of Representatives in the Seventy-fifth Congress from the First 
    Congressional District of the State of New Hampshire.

House Report No. 1521 accompanied House Resolution 309. The views of 
the majority as presented in this report were repeated verbatim in the 
final committee report (H. Rept. No. 2255). Mr. Kerr obtained unanimous 
consent that general debate be extended for two and one-half hours, to 
be equally divided and controlled by himself and Mr. Charles L. 
Gifford, of Massachusetts, who had submitted the minority views which 
accompanied the committee report. Under Mr. Kerr's request, the 
previous question was to be considered as ordered at the conclusion of 
the general debate. At the conclusion of such debate, Mr. James M. 
Wilcox, of Florida, offered the following motion (19) to 
recommit House Resolution 309 to the Committee on Elections No. 3 with 
instructions:
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19. 81 Cong. Rec. 9374, 75th Cong. 1st Sess.; H. Jour. 893.
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        . . . [T]hat this resolution be recommitted to the committee; 
    that the committee be and hereby is authorized, empowered, and 
    directed to take or cause to be taken the testimony of the 458 
    Newton residents shown by the town election records to have voted 
    there in person on November 3, 1936, and such further testimony as 
    the committee may consider relevant to better enable it to 
    determine the issue raised by this case; and that the committee be 
    authorized to expend such sums in its investigation as it may deem 
    necessary, and report its findings and recommendations to this 
    House at the next session of Congress.

    The motion to recommit was agreed to by a roll call vote of 231 to 
129.

[[Page 1150]]

    On Aug. 20, 1937, Mr. William B. Cravens, of Arkansas, asked 
unanimous consent for the immediate consideration by the House of House 
Resolution 329: (20)
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20. 81 Cong. Rec. 9501, 75th Cong. 1st Sess.; H. Jour. 914.
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        Resolved, That the expenses of conducting the investigation 
    authorized by the House in the contested-election case of ROY 
    versus Jenks, incurred by the Committee on Elections No. 3, acting 
    as a whole or by subcommittee, not to exceed $5,000, including the 
    expenditures for the employment of experts, clerical, stenographic, 
    and other assistants, shall be paid out of the contingent fund of 
    the House on vouchers authorized by such committee or by any 
    subcommittee thereof, conducting such investigation or any part 
    thereof, signed by the chairman of the committee and approved by 
    the Committee on Accounts.
        Sec. 2. Provided, That the committee shall during hearings in 
    the District of Columbia use the committee stenographers of the 
    House.

Mr. Lindsay C. Warren, of North Carolina, reserving the right to 
object, stated that this resolution should properly come from the 
Committee on Accounts. But, observing that the amount was reasonable 
and that the resolution was for the purpose of carrying out the mandate 
of the House to conduct an additional investigation, he withdrew his 
objection. Whereupon, the resolution was agreed to by voice vote and 
without further debate.

    On Aug. 21, 1937, the final day of the first session of the 75th 
Congress, Mr. John C. Nichols, of Oklahoma, asked unanimous consent for 
the immediate consideration of House Resolution 339,(1) 
which stated as follows:
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 1. 81 Cong. Rec. 9627, 75th Cong. 1st Sess.; H. Jour. 932.
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        Resolved, That the Committee on Elections No. 3, as a whole or 
    by subcommittee, is authorized, pursuant to order of the House, 
    August 18, 1937, to sit and act during the recesses of the Seventy-
    fifth Congress, in the District of Columbia or elsewhere, and to 
    hold such hearings as the committee may determine in connection 
    with the contested-election case of Roy v. Jenks. For the purpose 
    of this resolution, the committee may require the attendance of 
    such witnesses and the production of such books, papers, and 
    documents, by subpena or otherwise, and to take such testimony as 
    it deems necessary. Subpenas shall be issued under the signature of 
    the Speaker of the House of Representatives or the chairman of said 
    committee, and shall be served by any person designated by them or 
    either of them. The chairman of the committee or any member thereof 
    may administer oaths to witnesses. Every person who, having been 
    summoned as a witness by authority of said committee or any 
    subcommittee thereof, willfully makes default, or who, having 
    appeared, refuses to answer any questions pertinent to the matter 
    herein authorized, shall be held to the pen

[[Page 1151]]

    alties provided by sections 102, 103, and 104 of the Revised 
    Statutes of the United States, as amended (U.S.C., title 2, secs. 
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    192, 193, and 194.)

Mr. Nichols then advised that the purpose of this resolution was to 
modify the authority embodied in the motion to recommit, adopted 
previously, so as to permit either the whole committee or a 
subcommittee thereof, to conduct the investigation in Newton, New 
Hampshire. This resolution further provided for administration of oaths 
and issuance of subpenas. The resolution was thereupon agreed to.

    On Apr. 28, 1938, Mr. Kerr submitted the majority report from the 
Committee on Elections No. 3.(2) In that report the majority 
of the committee stated that they had found no evidence as a result of 
the investigation in Newton, New Hampshire, which changed their opinion 
(incorporated in H. Rept. No. 1521 which accompanied H. Res. 309). 
House Report No. 2255 and House Resolution 482 which it accompanied 
were based on three findings of fact by the majority: first, the 
original official returns from the Nov. 3, 1936, election having given 
Mr. Roy 51,370 votes and Mr. Jenks 51,920 votes, Mr. Roy on Nov. 9 
applied to the secretary of state of New Hampshire for a recount, 
pursuant to state law making it mandatory upon that official to conduct 
a recount upon request of either candidate. At the recount Nov. 24, at 
which both parties were represented, discrepancies were found in 114 of 
129 voting precincts, resulting in a net loss of 241 votes to Mr. Jenks 
and in a net gain of 309 to Mr. Roy, and thus a tie vote of 51,690 
votes to each candidate.
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 2. H. Rept. No. 2255, 83 Cong. Rec. 5957, 5960, 75th Cong. 3d Sess.; 
        H. Jour. 422.
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    Second, upon declaration of the tie vote, both candidates 
immediately appealed to the ballot-law commission for final 
determination. At the hearing of Dec. 2 and 3, both parties stipulated 
that they would only contest 108 ballots at the recount of the 
secretary of state, and thus the commission accepted the recount of all 
other ballots. The commission found that Mr. Roy had received 51,695 
votes and Mr. Jenks 51,678 votes, giving Mr. Roy a majority of 17 
votes. Thereupon Mr. Roy requested a certificate of election from the 
secretary of state, and Mr. Jenks notified the Governor and state 
council that he had obtained proof of a 34- or 36-vote discrepancy, in 
his favor in the town of Newton, New Hampshire, and requested that, 
pending in

[[Page 1152]]

vestigation, the election certificate be withheld. Mr. Jenks had not 
cited this discrepancy at the first recount or hearing, but it was 
considered by the committee as one of the discrepancies found in 114 of 
the 129 precincts upon the first recount.
    Third, the state ballot-law commission granted Mr. Jenk's petition 
for a rehearing on Dec. 16-18, 1936, to examine the discrepancies 
between the election officers return and the recount of ballots in the 
Newton precinct. Without deciding the matter, the commission on Dec. 19 
ordered a recount of the total vote, and found, pursuant thereto, that 
Mr. Roy had gained 7 votes, increasing his majority to 24 votes. Then, 
for the first time, the commission held that there were 34 votes 
missing in the Newton precinct box, all of which had been cast for Mr. 
Jenks, thereby making him the winner by 10 votes. The secretary of 
state thereupon issued an election certificate to Mr. Jenks. The 
majority declared that the issue to be decided was whether the tally 
sheets and check lists of the Newton precinct were to be considered the 
best evidence as to the number of votes cast, or whether the ballots 
themselves, which the committee, upon extensive testimony of the town 
officials responsible for preserving the ballots, had found to be 
preserved according to law without a ``scintilla'' of direct evidence 
to the contrary, were to be considered the best evidence. The committee 
placed the burden of proof upon the contestee Mr. Jenks to establish 
that ``there were 34 votes cast for him in the Newton precinct ballot 
box, which were not given to him in either recount, and that these 
ballots by fraud or mistake were removed from this ballot box at some 
time before a recount of same by the Secretary of State.''

    Following a recitation in the report of testimony of each of the 
officials responsible for safeguarding the ballots in question, the 
committee ``declined to accept the tally sheets and the check lists as 
the best evidence as to how many votes were cast for the contestant and 
the contestee in Newton precinct.''
    The committee report stated, at page 8, as follows:

        . . . This official return was only prima facie evidence of its 
    correctness. This has been overcome by a mandatory recount of the 
    Newton ballots together with all other ballots cast for Congress, 
    which recounts disclosed that the contention of the contestee 
    (Jenks) that he received 34 votes in Newton was not correct since 
    the ballots cast . . . were preserved as required by law and their 
    integrity unimpeached.

[[Page 1153]]

    The committee accepted the recount of the Newton ballots as the 
best evidence of the number of votes cast, decided that Mr. Jenks was 
entitled to four votes from a recount of 61 other ballots, and declared 
Mr. Roy elected by a majority of 20 votes.
    Mr. Charles L. Gifford, of Massachusetts, submitted the minority 
report (H. Rept. No. 2255, part 2) on May 5, 1938, the minority of the 
elections committee having been granted, by unanimous consent on Apr. 
28, one week to file minority views. The minority declared the crucial 
issue to be the number of ballots cast in Newton, and found the number 
to be 458, the original number as shown by the official town returns 
and as substantiated by the additional investigation conducted by the 
committee as ordered by the House. They sought to substantiate this 
number: (1) by evidence that 720 ballots were originally sent to Newton 
as required by statute, but only 686 used and unused ballots were found 
after the recount, a loss of 34 ballots; (2) by testimony of bipartisan 
town election officials that 458 voters had entered the polls and been 
checked on the tally sheets, and their ballots had been counted and 
recorded on check lists; and (3) by the official recount record, which 
showed a constant discrepancy between the ballot box and poll lists of 
34 votes, and showed that each Republican candidate had lost 34 votes 
by the recount, while no Democrat had lost a single vote.
    The minority claimed that the ballot box, alleged to be the best 
evidence, had been successfully impeached during the committee 
investigation in Newton, where 436 voters had appeared before the 
committee. The minority report relied on the sworn testimony of the 
voters themselves and of other witnesses, including testimony to the 
effect that the ballots in question had not been kept in safe custody 
before the recount, and that the ballots had been left unguarded during 
the recount.
    The minority therefore considered that it had been conclusively 
established that 458 voters did in fact enter the polls on election day 
and cast ballots. ``Since only 424 of these ballots have ever been 
found since the official returns in Newton were compiled--a loss of 34 
used ballots--no recount of the 424 ballots can either legally or on a 
basis of morality or justice be used to impeach or change the original 
returns on the basis of which Mr. Jenks, the contestee, is clearly 
entitled to his seat in this Congress.'' Joining Mr. Gifford in the 
minority report were Mr.

[[Page 1154]]

James W. Wadsworth, of New York, and Mr. Charles A. Wolverton, of New 
Jersey.
    House Resolution 482 was called up as privileged (3) on 
June 9, 1938, and general debate thereon limited to three hours, 
equally divided between Mr. Kerr and Mr. Gifford by unanimous consent. 
During the course of the debate, Mr. John J. Nichols, of Oklahoma, 
called the attention of the House to the presence of the contestant, 
Mr. Roy, in the gallery, and was ruled out of order by the Speaker pro 
tempore. Mr. Jenks, the seated contestee, took the floor, though he 
``had not intended to,'' to plead that the House take ``the sworn 
testimony of 458 people in the State of New Hampshire.'' (4) 
The three hours of debate were consumed and the previous question 
ordered pursuant to the unanimous consent request.
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 3. 83 Cong. Rec. 8642, 75th Cong. 3d Sess.; H. Jour. 641.
 4. 83 Cong. Rec. 8650, 75th Cong. 3d Sess.
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    Mr. Snell demanded a division of the two propositions in the 
resolution. The yeas and nays were ordered, and on the first resolve 
clause the House voted that Mr. Jenks was not entitled to a seat, 214 
yeas to 122 nays. On the second resolve clause, the House voted 227 to 
109 that Mr. Roy was entitled to a seat in the House of Representatives 
in the 75th Congress from the First Congressional District of New 
Hampshire.
    Note: Syllabi for Roy v Jenks may be found herein at Sec. 36.9 
(correctness of talley sheets); Sec. 37.2 (ballots as best evidence); 
Sec. 40.3 (burden of showing fraud, irregularity or mistake); Sec. 41.2 
(recounts permitted by state law); Sec. 42.6 (participation of parties 
and debate on resolution disposing of contests); Sec. 42.9 (extension 
of time for debate on resolution disposing of contests); Sec. 42.14 
(demand for division on resolution disposing of contests); Sec. 42.15 
(resolutions admitting neither candidate to a seat); Sec. Sec. 43.5, 
43.6 (timeliness of committee report); Sec. 43.7 (minority reports); 
Sec. 45.2 (payments from contingent fund).

Sec. 49.2 Rutherford v Taylor

    On June 30, 1937, the Clerk of the House transmitted to the Speaker 
a letter (5) concerning the contested election of J. Will 
Taylor, Second Congressional District of Tennessee, in the 75th 
Congress. The letter recited that on Dec. 4, 1936, Calvin Rutherford 
had served notice on Mr. Taylor, the returned Member, of his pur

[[Page 1155]]

pose to contest the election of said Mr. Taylor, and that Mr. Taylor 
did, on Dec. 21, 1936, answer the notice of contest served upon him. 
The letter further recited that contestant had begun taking testimony 
on Jan. 27, 1937, again on Jan. 29, and finally on Apr. 27, 1937, but 
that no further testimony had been adduced, despite contestee's 
requests that contestant complete his case within the 90 days permitted 
by 2 USC Sec. 203. Contestee claimed that he was entitled to 
reimbursement for legal expenses as permitted by 2 USC Sec. 226.
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 5. H. Doc. No. 282, 81 Cong. Rec. 6630, 6643, 75th Cong. 1st Sess.; H. 
        Jour. 675, 682.
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    Contestant claimed in his notice of contest (1) that certain 
election boards had willfully refused to place his name on official 
ballots; (2) that contestee had procured such conduct by the election 
officials; and (3) that contestee had, during the primary election of 
Aug. 6, 1936, purchased tax receipts of voters in order to influence 
their vote in November. Contestee's demurrer and answer specifically 
denied each allegation of the notice of contest and further 
demonstrated that, even where contestant's claim that his name had been 
left off ballots in four counties substantiated, and had contestant 
received all the votes in those counties, contestee would nevertheless 
have won the election by a majority of 11,566. The final total showed 
that contestee had received 40,527 votes; his opponent, Mr. O'Conner, 
39,080 votes, and Mr. Rutherford, 220 votes.
    The Clerk's letter, which contained copies of the notice and 
answer, as well as transcripts of all testimony, advised that the 
contest had abated. This letter was referred by the Speaker to the 
Committee on Elections No. 1 on June 30, 1937, and ordered printed with 
accompanying papers as a House document (H. Doc. No. 282).
    Note: Syllabi for Rutherford v Taylor may be found herein at 
Sec. 43.11 (effect of contestant's withdrawal or abandonment of 
contest); Sec. 45.6 (reimbursement request where contest has abated).

Sec. 49.3 Williams v Maas

    On Mar. 30, 1937, the Clerk of the House wrote a letter 
(6) to the Speaker concerning the contested election case 
brought by Howard Y. Williams against Melvin J. Maas in the Fourth 
Congressional District of Minnesota. The letter stated that during the 
time allowed by law for the taking of testimony, the Clerk had received 
a

[[Page 1156]]

statement from the contestant, Mr. Williams, dated Feb. 27, 1937, 
withdrawing the contest and asking that it be dismissed. The notice of 
withdrawal was referred to the Committee on Elections No. 1 on Mar. 30, 
1937, and ordered printed by the Speaker as part of the Clerk's letter.
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 6. H. Doc. No. 182, 81 Cong. Rec. 2901, 75th Cong. 1st Sess.; H. Jour. 
        341.
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    There is no record that the House took further action in this 
contest, or that the Committee on Elections No. 1 reported thereon.
    Note: Syllabi for Williams v Maas may be found herein at Sec. 33.4 
(manner of withdrawal from contests).