[Hinds' Precedents, Volume 1]
[Chapter 17 - Times, Places, and Manner of Election]
[From the U.S. Government Publishing Office, www.gpo.gov]
TIMES, PLACES, AND MANNER OF ELECTION.
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1. Provisions of Constitution and statutes. Sections 507
516.\1\
2. Power of State executive to call elections to fill
vacancies. Sections 517, 518.\2\
3. Time fixed by schedules of new State constitutions. Sections
519, 520.\3\
4. Disputes as to legal day of election. Sections 521-525.
5. Failure of Territorial legislature to prescribe manner, etc.
Sections 526, 527.
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507. The times, places, and manner of elections of Representatives
are prescribed by the State legislatures, but Congress may make or
alter such regulations.
Reference to discussions of the constitutional provision as to fixing
the time, etc., of elections.
Section 4 of Article I of the Constitution provides:
Section 4. The times, places, and manner of holding elections for
Senators and Representatives shall be prescribed in each State by the
legislature thereof; but the Congress may at any time by law make or
alter such regulations, except as to the places of chusing Senators.\4\
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\1\ Election must be by the people and not by lot. Section 775 of
this volume.
\2\ Discussion of the functions of the State executive. Section 312
of this volume.
\3\ Relative powers of State constitutional conventions and
legislatures in fixing times, places, and manner. Sections 363, 367,
388 of this volume; sections 846, 856, 1133 of Volume II.
Is the establishing of districts a prescribing of ``manner?''
Sections 310, 311 of this volume.
Respective powers of Congress and the States discussed. Section 313
of this volume.
Argument that State laws are, as to Congressional elections, really
Federal laws. Section 1105 of Volume II.
Federal statutes in relation to State laws. Section 961 of Volume II
The Federal Constitution the source of the States' power. Sections
947, 959 of Volume II.
May the State legislature delegate the power of prescribing the
``manner?'' Section 975 of Volume II.
\4\ The history and intent of this clause of the Constitution have
been discussed elaborately in House and Senate in connection with
legislation. Thus in the Fifty-first Congress, in connection with a
bill (H. R. 11045) relating to Federal regulations for elections, Mr.
Henry Cabot Lodge, of Massachusetts, from the Committee on the Election
of President, Vice President, and Representatives in Congress,
submitted a report (House Report No. 2493, first session Fifty-first
Congress) discussing the meaning of the clause. Mr. C. R. Buckalew, of
Pennsylvania, submitted minority views in connection with this report.
In reference especially to a limited construction of the clause the
minority views submitted by Mr. Henry St. George Tucker, of Virginia,
from the same committee, in connection with the bill [H.R. 7712]
discussed the subject very elaborately. (House Report No. 1882, first
session Fifty-first Congress.) In 1893, in the Fifty-third Congress,
the clause was again examined fully in connection with the bill H.R.
2331) to repeal certain portions of the Federal election laws. Mr.
Tucker in this case submitted the report, and Mr. Martin N. Johnson, of
North Dakota, submitted the minority views. (Report No. 18, first
session
Sec. 508
508. A Federal law fixes the Tuesday next after the first Monday of
November of every second (even numbered) year for election of Members
and Delegates.
Certain States, by special exception, elect their Members on a day
other than the day fixed generally by Federal statute.
Section 25 of the Revised Statutes, embodying the laws of February 8,
1872, and March 3, 1875, provides:
The Tuesday next after the first Monday in November, in the year
1876, is established as the day, in each of the States and Territories
of the United States, for the election of Representatives and Delegates
to the Forty-fifth Congress; and the Tuesday next after the first
Monday of November, in every second year thereafter, is established as
the day for the election, in each of said States and Territories, of
Representatives and Delegates to the Congress commencing on the fourth
day of March next thereafter.
By the act of March 3, 1875,\1\ the above provision was modified--
so as not to apply to any State that has not yet. changed its day of
election and whose constitution must be amended in order to effect a
change in the day of the election of State officers in said State.\2\
509. Territorial laws fix the times, places, and manner of election
of Delegates.--Section 1863 of the Revised Statutes provides:
The first election of a Delegate in any Territory for which a
temporary government is hereafter provided by Congress shall be held at
the time and places and in the manner the governor of such Territory
may direct, after at least sixty days' notice, to be given by
proclamation; but at all subsequent elections therein, as well as at
all elections for a Delegate in organized Territories, such time,
places, and manner of holding the election shall be prescribed by the
law of each Territory.
510. A Federal law provides that votes for Representatives to be
valid must be by written or printed ballot or by voting machine
indorsed by State law.--Section 27 of the Revised Statutes, dating from
February 28, 1871, and May 30, 1872, provides:
All votes for Representatives in Congress must be by written or
printed ballot, and all votes received or recorded contrary to this
section shall be of no effect. But this section shall not apply to any
State voting otherwise whose election for Representatives occurs
previous to the regular meeting of its legislature next after the
twenty-eighth day of February, 1871.
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Fifty-third Congress.) The Senate report at the next session merely
quoted the House report. (Senate Report No. 113, second session Fifty-
third Congress.)
In the Forty-fifth Congress an ambiguity in Colorado law as to the
date of the election led to the contest of Patterson and Belford. In
order to remove all further doubt Congress passed a law, approved June
11, 1878, ``designating the times for the election of Representatives
to the Forty-sixth and succeeding Congresses from the State of
Colorado.'' (20 Stat. L., p. 112, second session Forty-fifth Congress,
Record, pp. 4082, 4083.)
Also in the same Congress an act (approved June 19, 1878) (2 Stat.
L., p. 174) was passed to regulate the election in North Carolina in
the coming Congressional elections, specifying that an election
conducted by the sheriffs or other duly appointed persons in accordance
with certain specified North Carolina laws should be legal. See history
of bill, H. R. 4931, second session Forty-fifth Congress, for further
explanation.
In 1879, in connection with proposed legislation to repeal the
Federal election laws, the subject was discussed. See Record, first
session Forty-sixth Congress, p. 513 (Senator Teller's speech); also
President Hayes's veto message (first session Forty-sixth Congress,
Record, p. 1710).
The Supreme Court has also considered this clause. See, for
instances, ex parte Siebold, 100 U. S., 371; ex parte Clarke, 100 U.
S., 399; ex parte Yarbrough, 110 U. S., 651; in re Coy, 127 U. S., 731.
\1\ 18 Stat. L., p. 400.
\2\ The States of Maine, Vermont, and Oregon elect under the law
providing the exceptions.
Sec. 511
On February 14, 1899,\1\ the above section was amended to read as
follows:
All votes for Representatives in Congress must be by written or
printed ballot or voting machine, the use of which has been duly
authorized by the State law; and all votes received or recorded
contrary to this section shall be of no effect.\2\
511. A Federal statute provides that all citizens of the United
States qualified to vote shall be allowed to do so without distinction
of race, etc.--Section 2004 of the Revised Statutes, which dates from
May 31, 1870, provides:
All citizens of the United States who are otherwise qualified by law
to vote at any election by the people in any State, Territory,
district, county, city, parish, township, school district,
municipality, or other territorial subdivision, shall be entitled and
allowed to vote at all such elections, without distinction of race,
color, or previous condition of servitude; any constitution, law,
custom, usage, or regulation of any State or Territory, or by or under
its authority, to the contrary notwithstanding.\3\
512. No officer of the Army or Navy shall prescribe qualifications of
voters or interfere with the suffrage. Section 2003 of the Revised
Statutes provides:
No officer of the Army or Navy of the United States shall prescribe
or fix, or attempt to prescribe or fix, by proclamation, order, or
otherwise, the qualifications of voters in any State, or in any manner
interfere with the freedom of any election in any State or with the
exercise of the free right of suffrage in any State.\4\
Section 5530 of the Revised Statutes, dating from February 25, 1865,
provides:
Every officer of the Army or Navy who prescribes or fixes, or
attempts to prescribe or fix, whether by proclamation, order, or
otherwise, the qualifications of voters at any election in any State
shall be punished as provided in the preceding section [section
5529].\5\
513. A Federal law provides a penalty against armed interference of
Federal troops at an election.--Section 5528 of the Revised Statutes,
dating from February 25, 1865, provides:
Every officer of the Army or Navy, or other person in the civil,
military, or naval service of the United States, who orders, brings,
keeps, or has under his authority or control, any troops or armed men
at any place where a general or special election is held in any State,
unless such force be necessary to repel armed enemies of the United
States or to keep the peace at the polls, shall be fined not more than
five thousand dollars and suffer imprisonment at hard labor not less
than three months nor more than five years.
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\1\ 30 Stat. L., p. 836.
\2\ The Revised Statutes, sections 14 to 17, inclusive, provide for
the times and manner of election of Senators.
\3\ The following decisions relate to the above: 2 Abb. U. S., 120;
McKay v. Campbell, 1 Saw., 374; U. S. v. Reese et al., 92 U. S., 214;
U. S. v. Cruikshank et al., 92 U. S., 542.
The above section was originally the first section of the act of May
30, 1870, ``to enforce the rights of citizens of the United States to
vote in the several States of this Union, and for other purposes.'' (16
Stat. L., p. 140.) This section simply declared a right, without
providing for its enforcement. Other sections of the act provided
penalties for the denial of the right. The decisions of the court
impaired somewhat the efficiency of the act, and in the Fifty third
Congress the sections of the statutes containing the efficient
provisions of the act were repealed. (28 Stat. L., pp. 36, 37.) The
declaratory section was permitted to remain, however.
\4\ This law dates from February 25, 1865.
\5\ See section 514 of this chapter.
Sec. 514
514. A penalty is provided against interference by military or naval
force in the exercise of the right of suffrage and conduct of
elections.--Section 5529 of the Revised Statutes, dating from February
25, 1865, provides:
Every officer or other person in the military or naval service who,
by force, threat, intimidation, order, advice, or otherwise, prevents,
or attempts to prevent, any qualified voter of any State from freely
exercising the right of suffrage at any general or special election in
such State shall be fined not more than five thousand dollars and
imprisoned at hard labor not more than five years.\1\
Section 5531 of the Revised Statutes, dating from February 25, 1865,
provides:
Every officer or other person in the military or naval service who,
by force, threat, intimidation, order, or otherwise, compels, or
attempts to compel, any officer holding an election in any State to
receive a vote from a person not legally qualified to vote, or who
imposes, or attempts to impose, any regulations for conducting any
general or special election in a State different from those prescribed
by law, or who interferes in any manner with any officer of an election
in the discharge of his duty shall be punished as provided in section
5529 [of the Revised Statutes].
515. The executive of a State issues writs of election to fill
vacancies in its representation in the House.--Section 2 of article 1
of the Constitution, provides:
When vacancies happen in the representation from any State, the
executive authority thereof shall issue writs of election to fill such
vacancies.
516. A Federal law empowers the States and Territories to provide by
law the times of elections to fill vacancies in the House.--Section 26
of the Revised Statutes, dating from February 2, 1872, provides:
The time for holding elections in any State, District, or Territory
for a Representative or Delegate to fill a vacancy, whether such
vacancy is caused by a failure to elect at the time prescribed by law,
or by the death, resignation, or incapacity of a person elected, may be
prescribed by the laws of the several States and Territories
respectively.
517. The Pennsylvania election case of John Hoge, in the Eighth
Congress.
An election to fill a vacancy, called by the governor in pursuance of
constitutional authority, was held valid although no State law
prescribed time, place, or manner of such election.
In 1804,\2\ the House considered a petition alleging the undue
election and return of Mr. John Hoge, of Pennsylvania, who claimed a
seat as successor of William Hoge, resigned. On December 19, 1804, the
Committee on Elections, in their report in favor of John Hoge, found
the following state of facts:
That William Hoge, Member of the House of Representatives for the
Eighth Congress, having, by letter to the governor of the State of
Pennsylvania, dated the 15th of October, resigned his seat in Congress,
the governor, in pursuance of the provisions made in the second section
of the first article of the Constitution of the United States, issued a
writ of election to supply the vacancy which had thus taken place. That
the said writ was issued on the 22d day of October, and the election
directed to be held on
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\1\ Sections 5507 to 5510 of the Revised Statutes, inclusive, provide
penalties for punishment of persons who, individually or in conspiracy,
influence or prevent by bribery or intimidation the exercise of the
right of suffrage by those to whom it is guaranteed by the fifteenth
amendment.
Sections 5516 to 5519 (the Hains case (106 U. S., 629) involves the
constitutionality of section 5519), inclusive, provide penalties for
obstructing the enforcement of the Civil Rights Law, and for denying to
persons offices or privileges thereunder.
\2\ Second session Eighth Congress, Contested Elections in Congress,
from 1789 to 1834, p. 135.
Sec. 518
the 2d day of November, eleven days after the date of the said writ;
that the writ was brought by the mail to the prothonotary's office in
Washington County on the 30th of October, but not proclaimed by the
sheriff till the 31st.
It appears to the committee that, though, by the second section of
the first article of the Constitution of the United States, it is made
the duty of the executive authority of the respective States to issue
writs of election to fill vacancies, yet, by the fourth section of the
said article, it is made the duty of the legislature of each State to
prescribe the times, places, and manner of holding such elections. It
appears, however, that several elections to supply vacancies in
Congress have been held heretofore in Pennsylvania; yet, on examining
the laws of that State, it appears that no law exists prescribing the
times, places, and manner of holding elections to supply such vacancies
as may happen in the representation in Congress; and, consequently, if
the election of John Hoge is, on this account, set aside, no election
can be held to supply the vacancy until the legislature of the State
enact a law for that purpose.
The committee go on to show that the Pennsylvania law for general
election of Representatives to Congress required a notice of thirty
days. In this special election the governor directed the election to be
held on the same day on which the electors of President and Vice
President were to be chosen. And although it so happened that the
notice was in effect but two days, the committee found no evidence of
abuse in the manner of conducting the election. Therefore they reported
the opinion that John Hoge was entitled to a seat in the House.
On December 19, after full debate, the recommendation of the
committee was concurred in, by a vote of 69 yeas to 38 nays, and John
Hoge was admitted to his seat.
518. The Mississippi election cases of Gholson, Claiborne, Prentiss,
and Word in the Twenty-fifth Congress.
Discussion of power of a State executive to call an election to fill
a vacancy, although the State law did not provide for the contingency.
Examination of the term ``vacancy'' as used in the Federal
Constitution to empower a State executive to issue writs for an
election.
An instance wherein a State law prescribed a day of election which
arrived after the beginning of the term of the Congress affected.
The House declined to give prima facie effect to credentials regular
in form but relating to seats already occupied.
The House gave prima facie effect to credentials, although there
appeared a question as to the regularity of the writs of the election.
In a case wherein a contestant appeared after a determination of
final right to a seat by the House the sitting Member was unseated and
a vacancy declared.
There being rival claimants to a seat, elected on days different but
each constitutionally fixed, the House declared the seat vacant.
On September 25, 1837,\1\ the Committee on Elections reported in the
case of Messrs. Gholson and Claiborne, of Mississippi.
The law of Mississippi provided that Representatives in Congress
should be elected once in every two years, to be computed from the
first Monday in November, 1833. And, acting in pursuance of this law,
the people of Mississippi would, on the first Monday of November, 1837,
elect Representatives for the Congress actually
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\1\ First session Twenty fifth Congress, 1st Bartlett, p. 9; Globe,
pp. 95, 97; Journal, p. 142.
Sec. 518
beginning March 4, 1837, but not to assemble, in the ordinary course,
until December, 1837.
But the President, by proclamation of May 15, 1837, called an extra
session of the Twenty fifth Congress, to meet September 4, 1837. Thus
it happened that Mississippi had no Representatives, the terms of the
Representatives in the Twenty fourth Congress having expired March 4,
1837.
The governor of Mississippi--there being no State law providing for
such a contingency issued his proclamation under the clause of the
Constitution of the United States:
When vacancies happen in the representation from any State, the
executive authority thereof shall issue writs of election to fill such
vacancies.
The governor accordingly issued his writ calling an election for the
third Monday in July ``for two Representatives to Congress, to fill
said vacancy, until superseded by the Members to be elected at the next
regular election on the first Monday and day following in November
next.''
When the House organized, Messrs. Samuel J. Gholson and John F. H.
Claiborne appeared with credentials showing their election at the
election called in pursuance of the governor's writ.
Objection to their taking their seats was overruled, and the question
was referred to the Committee on Elections.
Two objections were urged before the committee. In the first place,
the point was raised in relation to the power of the governor to
restrict the terms of those elected to the time of the next regular
election. The committee, with one Member only dissenting, held that the
writ of election might not make such restriction, and that the two
Members were elected for the whole term of the Congress. They did not
conceive, moreover, that the election was invalidated by the illegal
clause in the writ.
The second objection occasioned considerable controversy, involving
the meaning of the word ``vacancy'' as used by the Constitution in this
connection. The committee were divided, a majority holding that in this
case a vacancy existed as much as if it had been occasioned by death or
resignation. The committee were of the opinion that the Constitution
authorized the executive power of the States, respectively, to order
the filling of all vacancies which have actually happened, whether by
death, resignation, or expiration of the terms of Members previous to
the election of their successors. The word ``happen'' made use of in
the Constitution, was not necessarily confined to fortuitous or
unforeseen events, but was equally applicable to an events which by any
means occur or come to pass, whether foreseen or not; and as in this
case confessedly the vacancy existed, it might properly be said to have
happened, although the means or circumstances by which it was brought
about may have been foreseen.
Therefore the committee reported the following resolution, which, on
October 3, was agreed to by the House--yeas 118, nays 101:
Resolved, That Samuel J. Gholson and John F. H. Claiborne are duly
elected Members of the Twenty fifth Congress, and, as such, are
entitled to their seats.
Sec. 518
On the first Monday of November--the time for the regular election--
Messrs. Gholson and Claiborne announced that they were not candidates,
considering that their reelection was not necessary, in view of the
decision of the House. Nevertheless, there was an election for
Congress, Messrs. S. S. Prentiss and Thomas J. Word contesting. Votes
were cast for Messrs. Gholson and Claiborne, however, although they
were not candidates. Messrs. Prentiss and Word received large
majorities over Messrs. Gholson and Claiborne; but the general state of
the poll indicated the probability that the two latter gentlemen would
have been elected had they entered the contest.
The governor of the State issued credentials to Messrs. Prentiss and
Word, which were presented soon after the opening of the regular
session, on December 27, 1837.\1\
The subject was, after debate, referred to the Committee on
Elections, Messrs. Prentiss and Word not being sworn in.
On January 12, 1838,\2\ the committee reported the facts of the case,
and on January 16 \3\ consideration by the House began, when Mr. Isaac
H. Bronson, of New York, offered the following:
Resolved, That Sergeant S. Prentiss and Thomas J. Word are not
Members of the Twenty-fifth Congress and are not entitled to seats in
this House as such.
On January 31 \4\ this resolution was amended by striking out all
after the word ``Resolved'' and inserting:
That the resolution of this House on the 3d of October last,
declaring that Samuel J. Gholson and John F.H. Claiborne were duly
elected Members of the Twenty-fifth Congress be rescinded; and that
John F.H. Claiborne and Samuel J. Gholson are not duly elected Members
of the Twenty-fifth Congress.
This amendment was agreed to--yeas 119, nays 112.
On February 1 a motion was made to further amend the resolution as
amended by adding the following:
Resolved, That Sergeant S. Prentiss and Thomas J. Word are not
Members of the Twenty-fifth Congress.
On February 5 \5\ that resolution was carried--yeas 118, nays 117,
the Speaker voting in the affirmative to break the tie.
A motion was agreed to to further amend by adding the following:
Resolved, That the Speaker of the House do communicate a copy of the
above resolutions to the governor of the State of Mississippi.
The question then recurred on agreeing to the original amended
resolution as amended by the addition of the second and third
resolutions. A division of the question being demanded, the first
resolution, rescinding the decision of October 3 and unseating Messrs.
Gholson and Claiborne, was agreed to--yeas 121, nays 113.
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\1\ Second session Twenty-fourth Congress, Journal, p. 150; Globe, p.
56.
\2\ Journal, p. 257.
\3\ Journal, p. 289; Globe, p. 104.
\4\ Journal, p. 338; Globe, p. 150.
\5\ Journal, p. 354; Globe, p. 158.
Sec. 519
Then the second resolution, declaring Messrs. Prentiss and Word not
entitled to seats, was agreed to--yeas 118, nays 116.
The third resolution was agreed to--yeas 122, nays 88.\1\
519. The Minnesota election case of Phelps, Cavanaugh, and Becker, in
the Thirty-fifth Congress.
Objection being made to the administration of the oath to a Member-
elect, the Speaker held that the question should be decided by the
House and not by the Chair.
The House declined to give immediate prima facie effect to
credentials when historic facts impeached the authority of the governor
and the legality of the election.
The House gave prima facie effect to the perfect credentials of a
State delegation, declining at that time to inquire whether or not the
election was invalidated by choice of three persons for two seats.
The House sometimes seats Members-elect on their prima facie showing,
stipulating that this shall not preclude examination as to the final
right.
Representatives elected at the time the constitution of a new State
was adopted were seated after the State was admitted to the Union.
Indorsement of the principle that a State may elect Representatives
on a general ticket, even though the law of Congress requires their
election by districts.
On May 13, 1858,\2\ Mr. Henry M. Phillips, of Pennsylvania, announced
the presence of Representatives from the recently admitted State of
Minnesota and moved that they be sworn in, at the same time presenting
the following credentials:
I, Samuel Medary, governor of Minnesota, hereby certify that at a
general election held on the 13th day of October, 1857, under the
constitution adopted by the people of Minnesota preparatory to their
admission into the Union as a State, W. W. Phelps received a majority
of the votes cast at said election as one of the Members of the United
States House of Representatives of the Thirty-fifth Congress from the
State of Minnesota; and by an official canvass of said votes was, on
the 17th day of December, 1857, declared duly elected one of said
Members.
Great Seal In testimony whereof I have hereunto set my hand, and
caused to be affixed
<3-ln {> of <3-ln }> the great seal of Minnesota, at the city at the
city of St. Paul, this 18th day of
Minnesota. December, 1857. S. Medary.
A similar certificate was presented for James M. Cavanaugh.
Mr. John Sherman, of Ohio, objected to the motion to swear in the two
gentlemen. The constitution of Minnesota had provided for the election
of three Representatives, while only two had appeared. Furthermore,
Samuel Medary, who signed the certificates, was no longer governor of
Minnesota. He had been Territorial governor, but the only mode by which
the House could judge was by the certificate of the executive officer
of the State, under the seal of the State.
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\1\ Besides the debates printed in the Globe on the days the subject
was considered, several able speeches are found in the Appendix (pages
68, 93, 124, 127), wherein the constitutional features are discussed.
\2\ First session Thirty-fifth Congress, Journal, p. 792; Globe, p.
2108.
Sec. 519
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES.
TIMES, PLACES, AND MANNER OF ELECTION.
Question being raised as to the procedure, the Speaker \1\ said: \2\
The Chair will follow the precedent, which he thinks is a correct
one, which was set in the case of the California Members. The Chair did
not undertake thereto decide that the Members should be sworn in when
they presented themselves, inasmuch as the Constitution of the United
States provides that each House shall be the judge of the election,
returns, and qualifications of its own Members. The Chair then referred
the question to the House to let it decide whether the Members
purporting to be elected should be sworn in or not. Therefore the Chair
now entertains the motion of the gentleman from Pennsylvania as a
proper one, which refers the question to the House to decide whether
they should or should not be sworn in.
As a substitute for the pending motion, Mr. Sherman offered a
proposition referring the credentials to the Committee on Elections,
with instructions to inquire into and report upon the right of those
gentlemen to be admitted and sworn as Members of this House.
This amendment was agreed to, yeas 91, nays 84.
The original motion as amended was then agreed to, yeas 108, nays 84.
On May 20 the Committee on Elections reported.\3\ The following facts
appeared:
By the act of February 26, 1857, Minnesota Territory was authorized
to form a constitution and State government preparatory to admission
into the Union; and it was declared that they should have one
Representative, and as many more as their population might entitle them
to under the existing ratio.
On October 13, 1857, the people of Minnesota voted on and adopted a
constitution, and on the same day elected three Representatives in
Congress, in accordance with a section of the constitution providing
that the State should consist of one district and elect three
Representatives. The votes for the three Representatives were canvassed
and the results declared. It was alleged by the minority that
certificates were issued to the three; but only two were presented to
the House.
On May 11, 1858, an act of Congress admitted Minnesota to the Union
and provided that the State should ``be entitled to two Representatives
in Congress.''
The majority of the committee contended that their only jurisdiction
was to inquire into the prima facie right of Messrs. Phelps and
Cavanaugh to be admitted and sworn. The question of election was not
involved, and hence the question as to the election of three Members
did not arise. The committee had seen no other credentials, and had no
evidence before them that more than two were elected. The House would
not voluntarily search for evidence to reject those appearing with
credentials, regular on their face. The committee quoted the
constitution of the State of Minnesota to show that the certificates
were ``in due form, certified according to law.'' The majority
therefore recommended a resolution admitting Messrs. Phelps and
Cavanaugh to be sworn, but reserving the privilege of contesting their
final right.
The minority admitted the inexpediency of discussing the right to the
seat on the presentation of credentials, but doubted the strict
propriety of such a course whenever the papers in possession of the
House and the laws which the House was presumed to know showed that
there could have been no legal election. The House must know that an
election was held under the constitution of Minnesota for three
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\1\ James L. Orr, of South Carolina, Speaker.
\2\ Globe, p. 2109.
\3\ House Report No. 408; 1 Bartlett, p. 248; Rowell's Digest, p.
154.
Sec. 519
Representatives, and that under the law admitting the State only two
were allowed. If the law of Minnesota was valid, three were elected. If
not valid, none were elected. The case of Reed v. Causden had shown
that the people only should elect, and that no power could prefer two
out of three elected by the people.
The minority further objected that on October 13, the election day,
Minnesota was still a Territory, and the people were engaged in voting
under a law of Congress on a constitution. The Territorial laws and
authorities, as decided by the Supreme Court, continued exclusively in
force until the passage of the act of admission. Therefore the election
of the Representatives was an act of usurpation and void. There is no
case'' say the minority, ``where the people of a Territory have
presumed to elect, by the same ballots which determined whether they
should adopt the constitution preparatory to admission, Representatives
to Congress; still less when on that day they elected more
Representatives than the act, under which they were proceeding, said
they should have when admitted as a State.'' The census so far as
completed indicated that the State would be entitled to but one
Representative under the act of Congress authorizing the adoption of
the constitution.
In reply to this contention, the majority say:
An objection is urged to the right of the claimants to their seats on
the ground that their election was prior to the admission of the State
into the Union. In the opinion of the committee, if it be admitted that
there is no force in numerous precedents scattered through the journals
of Congress, and extending back to the earliest times of the Republic,
sanctioning this course, it should be considered that Congress, by the
enabling act authorizing the formation of a constitution and State
government, thereby fully empowered the people of Minnesota to prepare
themselves to assume, upon their admission, all the rights, powers, and
attributes of a sovereign State in the Union. One of these rights is
that of being represented in Congress; and were elections held prior to
admission for Members of the House of Representatives held void, States
must remain unrepresented after their admission, and until elections
can be subsequently held, presenting the anomalous spectacle of States
in the Union without representation or voice in the national councils.
The act of admission into the Union upon being consummated, relates
back to and legalizes every act of the Territorial authorities
exercised in pursuance of the original authority conferred. As the
election of Members to this House looks directly to the end in view
contemplated by the enabling act of Congress, the committee think it
entirely within the scope of action conferred upon the people of the
Territory, and should be respected by Congress.
As to the objection that the Representatives were elected on a
general ticket, which was forbidden by the act of 1842, the majority
say that even if the act of 1842 were still in force, yet the decision
of the House in the cases from New Hampshire, Georgia, etc., would
dispose of this objection.
On May 20 to 22 \1\ the report was considered by the House. The
debate occurred on the latter date, when attention was called to a
certificate on the files of the House dated December 18, 1857, and
certifying the election of three Representatives, George L. Becker
being the third. A signed statement of the canvassers was also
presented to show that the highest votes were thrown for Messrs. Phelps
and Cavanaugh.
Mr. Thomas L. Harris, of Illinois, who had made the majority report,
said these papers had not been brought to the attention of the
committee, and did not form part of the case. The majority of the
committee still adhered to the opinion that the question involved was
not one of election, but of prima facie right.
-----------------------------------------------------------------------
\1\ Journal, pp. 859, 870, 883; Globe, pp. 2275, 2292, 2310, 2315.
Sec. 520
The minority proposition, that Messrs. Phelps and Cavanaugh be not
sworn, was disagreed to--yeas 74, nays 125.
Then the resolution of the majority, providing that they be sworn,
but that a contest should not thereby be precluded, was agreed to, yeas
135, nays 63.
Then the two Representatives from Minnesota were sworn in.
520. The California election case relating to Gilbert and Wright in
the Thirty-first Congress.
The House has sworn in on prima facie showing Members-elect chosen at
an election the day, etc., of which was fixed by the schedule of a
constitution adopted on that election day.
Objection being made to the administration of the oath to a Member-
elect, the Speaker held that the question should be decided by the
House and not the Chair.
References to elections of Representatives in new States wherein no
legislation had fixed the time, place, and manner.
On September 10, 1850,\1\ the credentials of Edouard Gilbert and
George W. Wright, as Representatives from California, were presented to
the House. These credentials showed that the two gentlemen had been
elected on November 13, 1849, ``in pursuance of the sixth section of
the schedule appended to the constitution of the State of California.''
This section of the schedule provided, among other things, that ``this
constitution shall be submitted to the people for their ratification or
rejection at the general election to be held on Tuesday, the thirteenth
day of November'' [1849], and furthermore provided machinery for
holding the election. Section 8 of the schedule provided that on the
above date ``two Members of Congress'' should be elected.
Mr. Abraham W. Venable, of North Carolina, objected to the swearing
in of the two gentlemen, and moved that the credentials be referred to
the Committee on Elections.
Mr. James Thompson, of Pennsylvania, made the point of order that it
was the duty of the Speaker, immediately upon the presentation of the
credentials under the seal of the State, to administer the oath of
office.
The Speaker \2\ overruled the point of order, saying that if
objection was made it was the duty of the House, not of the Speaker, to
determine the question. This decision the Speaker justified under the
clause of the Constitution providing that--
each House shall be the judge of the elections, returns, and
qualifications of its own Members.
Mr. Venable then presented his objections to the swearing in of the
two gentlemen. He said that the credentials and the annexed schedule of
the constitution of the State of California showed that at the time of
the election there was no constitution, no legislature, and no law in
California other than the Constitution and laws of the United States.
The constitution perfected by the California convention was of no force
until ratified by the people. By the provisions of the Constitution
itself it was not legally ratified until after a comparison of the
votes and a proclamation of the governor, thirty days after the
election. Elections to be valid must
-----------------------------------------------------------------------
\1\ First session Thirty-first Congress, Journal, p. 1442; Globe, pp.
1789, 1795; Appendix, p. 1253.
\2\ Howell Cobb, of Georgia, Speaker.
Sec. 521
take place under the constitution and not anterior to its ratification.
The Constitution further provided that the times, places, and manner of
elections of Representatives in Congress ``shall be prescribed in each
State by the legislature thereof.'' This condition had not been
complied with, for California was not legally a State when the election
took place. There was no legislature in existence to regulate the
times, places, and manner. There was no standard of qualification of
voters as provided by the Constitution. Furthermore, the convention of
California, without a census, had assumed that they were entitled to
two Representatives. If California had assumed for herself 10 Members,
they would have been admissible on the same reasoning that would admit
the 2. It could not be argued that the constitutional convention was a
primary assembly of the people, and its action equivalent to a
corresponding act of a legislature, because the instrument carried on
its own face the evidence of its nullity until ratified by the people.
In reply to this argument it was stated that all the new States,
except Missouri and Texas, had sent Representatives before any law had
been passed by the legislatures designating the times, places, and
manner of holding elections. It was customary for a schedule to be
appended to the constitutions such as had been appended in this case.
It was true that in most cases the constitutions had been adopted
before the Members of Congress were elected; but in the case of
Michigan the constitution had been voted on the very day when the
Members of Congress were elected.
On September 11, by a vote of yeas 109, nays 59, the motion of Mr.
Venable was amended by adding--
that the Speaker proceed to administer the oath, as prescribed by law,
to Edouard Gilbert and George W. Wright, as Members of the House from
the State of California.
The original motion, as amended, was then agreed to. So it was
ordered that the credentials be referred, and that the gentlemen be
sworn in.
521. The election case of Tennessee Members in the Forty-second
Congress.
Members-elect from Tennessee were seated in 1871 on prima facie
showing, although there was a question as to whether or not the day of
their election was the legal day.
An opinion that the House, in construction of a State law, should
follow the construction given by the proper State officers.
On March 22, 1871,\1\ Mr. George W. McCrary, of Iowa, submitted the
report of the Committee on Elections in the case of the Tennessee
Members, who had been sworn in at the organization of the House, but of
whose election there was doubt because they had been chosen on November
8, 1870, while there was a question as to whether or not the law of
Tennessee did not provide for election in August instead of November.
The committee, after a discussion of the Tennessee statutes,
concluded that November 8 was the legal day of election. They further
said:
If, however, the question as to whether by the act of 1870 the time
for holding the election in question was changed from August to
November was one of doubt, we should feel bound to follow the
construction given to it by all the authorities of the State of
Tennessee whose duty it has been to construe it and to execute it. It
is admitted that the governor and all other authorities in Tennessee
having
-----------------------------------------------------------------------
\1\ House Report No. 1, first session Forty-second Congress, Smith,
p. 3; Rowell's Digest, p. 261.
Sec. 522
anything to do with the construction and enforcement of this act of
1870 have construed it as in nowise affecting the act of 1868, and by
common and universal assent the election was held at the time fixed in
the latter act. It is a well established and most salutary rule that
where the proper authorities of the State government have given a
construction to their own constitution or statutes that construction
will be followed by the Federal authorities. This rule is absolutely
necessary to the harmonious working of our complex governments, State
and National, and your committee are not disposed to be the first to
depart from it. The committee recommend the adoption of the following
resolution:
Resolved, That the election for Members of Congress from the State of
Tennessee, held on the 8th day of November, 1870, was held on the day
fixed by law, and was not void by reason of having been held on the
said day.
On April 11 \1\ the resolution was agreed to by the House without
debate or division.
522. The election case of the West Virginia Members in the Forty-
third Congress.
The House seated a claimant elected on what it decided to be the
legal day.
Discussion as to the power of a State convention to fix the time for
election of Representatives in Congress, when the legislature had
already acted.
Discussion as to the retroactive effect of the schedule of a new
State constitution, whereby a date for election of Congressmen was
fixed.
A question as to whether or not a State might make the time of
election of Congressmen contingent on the time of the State election.
Credentials issued by a governor raising a doubt as to election, the
Clerk and the House declined to allow to them prima facie effect,
although positive credentials authorized by the State legislature
accompanied.
Discussion as to whether or not credentials which required reference
to State law to make certain their import should be given prima facie
effect.
Instance of an amendment changing the character of a resolution by
striking out the word ``not.''
At the session of 1873-74 \2\ the House was confronted with a
question relating to the validity of the election of the three
Representatives from West Virginia, at the election due to be held in
that State in 1872 for Members of the Forty-third Congress.
A law enacted by the West Virginia legislature in 1869 provided:
1. The general election of State, district, county, and township
officers, and members of the legislature, shall be held on the fourth
Thursday of October.
2. At the said elections in every year there shall be elected
delegates to the legislature and one senator for every senatorial
district. And in the year 1870, and every second year thereafter, a
governor, secretary of state, treasurer, auditor, and attorney general
for the State, a prosecuting attorney, surveyor of lands, recorder, and
the number of assessors prescribed by law, and a Representative in the
Congress of the United States for the term beginning on the 4th day of
March next after the election, for every Congressional district; and in
the year 1870, and every fourth year thereafter, a judge of the supreme
court of appeals for the State, and a clerk of the circuit court, and a
sheriff for every county; and in the year 1874, and every sixth year
thereafter, a judge for every circuit.
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\1\ Journal, p. 146; Globe, p. 582.
\2\ First session Forty-third Congress.
Sec. 522
In the early winter months of 1872 a constitutional convention was in
session in West Virginia, and prepared a new constitution, one of the
provisions of which was:
The general elections of State and county officers and members of the
legislature shall be held on the second Tuesday of October until
otherwise provided by law.
The constitutional convention also agreed to a schedule as follows:
Sec. 3. The officers authorized by existing laws to conduct general
elections shall cause elections to be held at the several places for
voting established by law in each county on the fourth Thursday of
August, 1872, at which elections the votes of all persons qualified to
vote under the existing constitution, and offering to vote, shall be
taken upon the question of ratifying or rejecting this constitution and
schedule.
Sec. 7. On the same day, and under the superintendence of the
officers who shall conduct the election for determining the
ratification or rejection of the constitution and schedule, elections
shall be held at the several places of voting in each county for
senators and members of the house of delegates, and all officers,
executive, judicial, county, or district, required by this constitution
to be elected by the people.
The new constitution did not specify any requirement as to the
election of Members of Congress by the people. It did provide as
follows:
Such parts of the common law and of the laws of this State as are in
force when this constitution goes into operation, and are not repugnant
thereto, shall be and continue the laws of this State until altered or
repealed by the legislature.
The schedule further provided, in event of ratification, that ``this
constitution and schedule shall be operative and in full force from and
including the fourth Thursday of August, 1872.'' They were ratffied by
the people on the said day.
Several things are evident from the above state of facts:
(a) That the constitutional convention, by its schedule, established
a new date and a new machinery for the election of State officers,
thereby superseding the requirements of the law passed by the
legislature in 1869.
(b) That the constitutional convention did not specifically name the
Congressional elections as taking place on the day set apart for
election of State officers.
(c) That the Constitution of the United States provides that the
times for holding Congressional elections shall be prescribed by the
``legislature'' of the State, and that the West Virginia law of 1869
fulfilled that requirement, although it might be claimed that the
schedule of the constitutional convention had swept away the machinery
of that act.
(d) That the schedule was of doubtful validity in prescribing the
time of a Congressional election, especially since it was ratffied only
on the very day when that election would be held.
There was much doubt in West Virginia as to what should be done, and
elections for Congressmen were held both on the fourth Thursday of
August and the fourth Thursday of October. At the August election
81,875 votes were cast on the constitutional question and 44,917 for
Congressmen.
In the Third district Frank Hereford was a candidate and was elected
at each election. Therefore the Clerk of the House put his name on the
roll at the organization of the House.\1\
-----------------------------------------------------------------------
\1\ First session Forty-third Congress, Record, p. 5.
Sec. 522
In the other districts the following took place,\1\ as stated in the
report of the Committee of Elections in its description of the August
election:
At this election, in the first district--
Votes.
Mr. Davis received 13,361
Mr. Wilson 12,948
H.W. Rook 4
------
Aggregate 26,313
In the second district the Congressional conventions of both parties
met before the August election and adjourned without making
nominations. At the August election, however, Mr. Hagans received 3,441
votes returned, and, it is claimed, other votes which were not
returned. There were 600 votes for other candidates.
Upon the fourth Thursday of October another election for
Representatives was held, at which the aggregate vote cast was 22,146.
In the first district--
Votes.
Mr. Wilson received 3,708
Thirty nine other candidates 381
------
Total vote 4,089
In the second district, at the October election, Mr. Martin received
nearly 6,000 votes, which was a majority over all other candidates.
The governor of West Virginia gave Messrs. Davis and Hagans
credentials certifying that they were elected, provided the fourth
Thursday of August was the legal day for electing Representatives in
Congress; and to Messrs. Wilson and Martin like credentials certifying
that they were elected, provided the fourth Thursday of October was the
legal day for electing Representatives.
The legislature of West Virginia subsequently passed an act directing
certain State officers to give certificates to the Representatives
elected to Congress, who gave formal certificates to Messrs. Wilson and
Martin,
who had been elected in October.
The form of the certificates \2\ given was:
State OF West Virginia, to wit:
I, John J. Jacob, governor of the said State, pursuant to the act of
the legislature thereof in such case made and provided, do hereby
certify that Benjamin Wilson was duly chosen on the 24th day of
October, 1872 (provided that was the time prescribed by law for holding
an election for Representatives in the Congress of the United States),
a Representative in the Congress of the United States for the First
Congressional district of this State, composed of the counties, etc. *
* *, for the term commencing on the 4th day of March next.
Given under my hand and the great seal of the State of West Virginia,
this 29th day of January, 1873.
[seal.]
John J. Jacob.
By the governor:
John M. Phillips,
Secretary of State.
The certificate given in pursuance of the act of the legislature was
in this form:
State OF West Virginia, to Wit:
We [names of officials enumerated], of said State, pursuant to the
act of the legislature thereof in such case made and provided, do
hereby certify that Benjamin Wilson, of the county of Harrison, was
duly chosen and regularly elected, in accordance with the laws of this
State, on the 24th day of October, 1872, a Representative in the
Congress of the United States, for the First Congressional
-----------------------------------------------------------------------
\1\ See House Report No. 7.
\2\ Record, p. 40.
Sec. 522
district of this State, composed of the counties, etc., * * *, for the
term commencing on the 4th day of March, 1873.
Given under our hands and the great seal of the State of West
Virginia, which is hereto affixed by the secretary of state, this 22d
day of November, 1873.
Charles Hedrich , Secretary of State, etc.
(Other signatures being appended.)
The Clerk, in view of the alternative nature of the certificates
issued by the governor, announced to the House, at its organization on
December 2, 1873, \1\ that he considered them inadmissible for
enrolling either of the candidates from the First and Second districts.
On December 3 \2\ Mr. John Cessna, of Pennsylvania, proposed the
following resolution:
Resolved, That the name of John J. Davis be placed on the roll of
this House as a Representative from the First Congressional district of
West Virginia, without prejudice to the right of Benjamin Wilson to
contest the seat hereafter; and that the name of J. Marshall Hagans be
placed on the roll of this House as a Representative from the Second
Congressional district of West Virginia, without prejudice to the right
of Benjamin F. Martin to contest his seat hereafter, and that they be
forthwith sworn in as Members of this House.
This resolution precipitated a long debate on the sufficiency of the
prima facie evidence in the case. The argument for the resolution was
based on the supposition that a reference to the law of West Virginia
would show the August election legal. On the other hand it was argued,
especially by Mr. L.Q.C. Lamar, of Mississippi, that such an argument
was fatal, since no prima facie right could be based on a certificate
which had to be supported by reference to other matters, whether
circumstances of law or fact. Furthermore, the alternating feature of
the governor's certificate emasculated the certificates. Also the Clerk
had, acting under the law, rejected the certificates, and the House
ought not to reverse his decision until after examination by a
committee.
The demand for the previous question on the resolution was
negatived--ayes 54, noes 109. Then the resolution was, without
division, referred to the Committee on Elections, and the oath was not
administered to either of the claimants.
On January 14, 1874,\3\ the report of the committee was submitted by
the chairman, Mr. H. Boardman Smith, of New York. It was also signed by
Mr. C. K. Thomas, of North Carolina; Edward Crossland, of Kentucky; R.
M. Speer, of Pennsylvania, and L.Q.C. Lamar, of Mississippi. Messrs.
Lemuel Todd, of Pennsylvania; Horace H. Harrison, of Tennessee, and Ira
B. Hyde, of Missouri, gave a qualified approval. Mr. Speer submitted
views supplemental to the report, giving the argument in a different
way. Messrs. J. W. Hazelton, of Wisconsin, and J.W. Robinson, of Ohio,
filed minority views sustaining the August election, while the majority
of the committee sustained the October election.
The questions discussed may be divided into several branches, and for
convenience the minority propositions may be stated first, since the
House ultimately decided in favor of the minority views:
(1) May a constitutional convention prescribe the time for electing
Representatives in Congress?
-----------------------------------------------------------------------
\1\ Record, p. 5.
\2\ Record, pp. 35 46; Journal, pp. 39 41.
\3\ House Report No. 7; Smith, p. 108; Rowell's Digest, p. 284.
Sec. 522
The minority say:
The constitutional convention had authority to prescribe a time,
after its ratification, for the election of Representatives. The case
of Michigan is in point. The State constitution was adopted on the 24th
day of June, 1835. Section 6 of the schedule contained these words:
``The first election of governor, lieutenant-governor, members of the
State legislature, and a Representative in the Congress of the United
States shall be held on the first Monday of October next and on the
succeeding day.''
The Representative was so elected on the first Monday and succeeding
day in October, 1835, and was subsequently admitted to his seat in the
House.
See also the case of Iowa. The constitution of Iowa was adopted May
18, and ratified August 3, 1846. The sixth section of the schedule
provides as follows:
``The first general election under this constitution shall be held at
such time as the governor of the Territory, by proclamation, may
appoint, within three months after its adoption, for the election of a
governor, two Representatives in the Congress of the United States
(unless Congress shall provide for the election of one Representative),
members of the general assembly, and one auditor, treasurer, and
secretary of state.''
Representatives were chosen under the governor's proclamation on the
26th of October, 1846, and subsequently admitted to seats in the House.
We are very firmly impressed with the conviction that the precedents
cited are conclusive upon this question. The word ``prescribe,'' as
used in the Constitution of the United States in connection with the
election of Representatives, may well be said to have a settled meaning
and construction.
We may add, in conclusion, that we are all the more willing to follow
this construction in the present case, because it saves us from the
alternative of disfranchising a State, while it seems to do no
injustice to anyone.
As a precedent, it is entirely without consequence one way or the
other, because Congress has already fixed a uniform time for electing
Representatives in Congress, and thus taken the whole subject out of
State control, after the year 1876.
The supplemental majority report, presented by Mr. Speer and signed
by Messrs. Lamar and Crossland, took the contrary view:
But if it is possible to claim that the convention did change the day
for holding Congressional elections in West Virginia from the fourth
Thursday of October to the fourth Thursday of August, in 1872, then it
is respectfully submitted that its act was unauthorized and void. Where
the legislature has prescribed no time, a different question may arise.
But in this case the legislature had prescribed a time, had obeyed the
requirement of the Federal Constitution, had discharged its sworn duty,
and had exercised its undoubted power. What shadow of authority,
therefore, was there in the convention to interfere? The State
constitution had not given to the legislature the power to say when
Congressmen shall be elected (for it did not have it to give), and
neither State constitution nor State convention could take it away. The
legislature derived it from the supreme law of the land, the
Constitution of the United States, and in its exercise it knew but one
master.
In the Massachusetts convention of 1820 a resolution was submitted
declaring that the State constitution ought to be so amended as to
provide for the election of Members of Congress in such districts ``as
the legislature shall direct,'' thus limiting its discretion to
prescribe ``the times, places, and manner'' of their election. In the
discussion that followed Justice Story opposed the resolution,
declaring that it ``assumes a control over the legislature which the
Constitution of the United States does not justify. It is bound to
exercise its authority according to its own views of public policy and
principle; and yet this proposition compels it to surrender all
discretion. In my humble judgment, and I speak with great deference for
the convention, it is a direct and palpable infringement of the
constitutional provisions to which I have referred.''
Mr. Webster followed, limiting himself, however, to the expediency of
the proposition. He declared that ``whatsoever was enjoined on the
legislature by the Constitution of the United States, the legislature
was bound to perform; and he thought it would not be well by a
provision of this constitution to regulate the mode in which the
legislature should exercise a power conferred on it by another
constitution.'' And the proposition failed.
Sec. 522
In the case of Baldwin v. Trowbridge, in the Thirty-ninth Congress,
this House held that ``where there is a conflict of authority between
the constitution and the legislature of a State in regard to fixing the
place of elections, the power of the legislature is paramount.''
This case goes further than is required in the cases now pending.
An apparently contrary doctrine was sustained in the case of Shiel v.
Thayer, from Oregon, in the Thirty-seventh Congress. The committee
there say they ``have no doubt that the constitution of the State has
fixed, beyond the control of the legislature, the time for holding an
election for Representative in Congress.''
But this part of the report was a mere dictum, for there was nothing
in the case to require the committee to determine any such question.
Shiel had been elected on the day fixed by the constitution, while
Thayer claimed to have been elected on the day of the Presidential
election--a day not prescribed by any authority for the election of a
Member of Congress. No question as to the power of the legislature to
fix the time arose in the case; and what was said upon this point was
wholly unnecessary, in view of the undisputed facts.
In the debate,\1\ quoting the Federal Constitution, Mr. Wilson, of
Maryland, contended that the word ``prescribe'' meant the laying down
beforehand of an absolute rule, not a conditional one, and therefore
that the schedule in question did not ``prescribe'' sufficiently.
Mr. Lamar contended \2\ that the distinction between the words
``legislature'' and ``convention'' were well understood by the framers
of the Constitution. A convention could not by its essential nature and
functions overrule the legislature. A convention, like the legislature,
was not sovereign, but only one of the agencies of absolute sovereignty
which resided in the people.
Mr. Robinson, of Ohio, argued \3\ that the issue was not drawn
between the convention and the legislature, since the convention merely
changed the occasion which the legislature had prescribed as the time
for holding Congressional elections.
(2) Might the schedule of the constitution, the ratification of which
could be certain only at the conclusion of the election, actually
attempt to prescribe the time for the election of Representatives in
Congress?
The minority say:
We maintain the affirmative of this proposition. Even if we concede
that the word ``prescribe'' shall have here its narrowest and most
technical signification, there seems to us to have been a sufficient
prescription of the time.
The schedule submitted with the new constitution provides that, in
case of adoption, the same shall be deemed and taken to have been in
force from and during the whole said fourth Thursday of August. The law
knows no fraction of a day. Being ratified, it became and was, in fact
as well as legal intendment, the law of the State prior to the opening
of the polls on that day. The time was therefore prescribed when the
ballot boxes were opened on that day; that is to say, the law making
that day the day of the general election for State and local officers
was in force before a vote was polled. But it is said that this was not
a prescription of the time, because, if the constitution had not been
ratified, the election would have amounted to nothing. Saying nothing
just here about the impolicy and injustice of applying so technical a
rule for the purpose of disfranchising a State, we submit that it is
too late to raise that question.
The majority report thus combats this theory:
5. In answer to these difficulties, it is suggested that by night of
election day the old constitution was superseded, and that the new
constitution was thereupon ``operative and in full force from and
including the fourth Thursday of August, 1872,'' and that ``fractions
of days are not noticed by the makers either of statutory or organic
laws.''
But the answer suggested admits that down to the morning of the
fourth Thursday of August any
-----------------------------------------------------------------------
\1\ Record, p. 934.
\2\ Record, p. 846.
\3\ Record, p. 848.
Sec. 522
law or ordinance prescribing the holding of a Congressional or State
election on that day was unconstitutional and void. Nor (if this be
material) is it unqualifiedly true that ``fractions of a day are not
noticed.''
``Common sense and common justice equally sustain the propriety of
allowing. fractions of a day whenever it will promote the purposes of
substantial justice.'' (Potter's Dwarris, 101; see 2 Story, C. C. R.,
571.)
It is also suggested that the admission of Senators and
Representatives simultaneously with the admission of new States, who
have been elected at the same time with the ratifications of the first
State constitutions, is sufficient authority for sustaining the
validity of the August election. But these cases have always been put
upon the ground of ``necessity,'' and upon the theory, whether it be a
``legal fiction'' or whatever else, that a State is not fully in the
Union until it is in its normal and constitutional relations with the
Union and represented in Congress. Of course between such cases,
whether right or wrong, and the case of West Virginia no analogy can be
drawn. The constitutional provision had been in full sway in West
Virginia for some ten years. What suspended it?
At page 409 of Jameson's work on constitutional conventions the
author says of these precedents:
``There being as yet no State, and of course no State legislature,
unless the convention could make a temporary arrangement for the
election of Members of Congress, the new State must, after its
admission into the Union, be unrepresented in that body until a State
legislature could be elected and could pass the necessary laws--a
condition involving often a considerable delay. In such cases,
accordingly, the custom has been for the convention to anticipate the
action of the legislature, a course which, on account of its obvious
convenience, has been commonly acquiesced in. These cases, however,
form exceptions to a rule which is general--that it is the State
legislatures which apportion their several States for Congressional
elections. I have failed to find a single exception to that rule, save
in the cases of Territories seeking to become States or of States
standing substantially upon the same footing as Territories.
``Besides, in one view of the subject such action of the Territories,
taken in connection with that of Congress following it, involves no
impropriety, if it is not strictly regular. Immediately following that
clause of the Federal Constitution giving the power of determining the
`times, places, and manner of electing Senators and Representatives' to
the State legislature, is the important reservation, `but the Congress
may at any time, by law, make or alter such regulations, except as to
the place of choosing Senators.' Hence, having the power to make or
alter, Congress doubtless might ratify such regulations, however made;
or if a State, actual or inchoate, were in such a condition that it had
no lawful legislature, Congress might itself, for the sake of
convenience, establish them by its direct action. This it does, in
substance, by anticipation in those cases in which it accepts and
admits into the Union Territories presenting themselves with
constitutions containing the apportionments referred to.''
In the course of the debate \1\ the chairman of the committee, Mr.
Smith, called attention to the fact that the old constitution of West
Virginia provided that the ordinances of the constitutional convention
should have no effect until they were ratified, and that they should
not have any retroactive effect. Senators and Members admitted
simultaneously with the admission of new States had always been elected
outside the constitution. Such was the case in elections under the
reconstruction acts, such as that of March 11, 1868. These precedents
could not be applied to the case of a State already within the Union.
It was further urged by Mr. Lamar \2\ that the schedule was a mere
addendum, temporary in its nature, to test the will of the people and
secure the transition from the old to the new system. As to the point
that the schedule was retroactive, and no one could tell in advance
whether the election was to be valid or not, Mr. Benjamin F. Butler, of
Massachusetts, pointed out \3\ that it proved too much, since if the
objection was good it went to the whole State government of West
Virginia and invalidated it.
(3) Might the State make the election of Representatives in Congress
contingent upon the date of election of State officers, and moveable
therewith?
-----------------------------------------------------------------------
\1\ Record, pp. 818, 819.
\2\ Record, p. 843.
\3\ Record, p. 959.
Sec. 522
The minority views say:
The legislature of 1869, when it framed the election law and provided
all the machinery for conducting an election, and enacted that
Representatives in Congress should be elected at said elections,
intended to point out and designate the occasion for electing such
Representatives; intended that the one election should be held in
conjunction with the other; in other words, that when it provided the
means or agencies for holding the State election, and authorized
Representatives to be elected at the time of said election, and under
and by virtue of the machinery for said election, it did not intend
that Representatives in Congress should not be elected at said election
and without any legal ``manner'' whatever provided therefor.
Connecting the election of Representatives with an occasion was,
moreover, entirely in harmony with the practice of the old State of
Virginia, which for some forty years, it seems, was authorized to elect
Representatives in Congress under a statute which fixed the election at
the holding or opening of certain terms of court, which latter were
constantly changing with successive acts of the legislature.
It being, we think, clearly the purpose of the legislature that
Representatives in Congress should be elected at the general election,
it follows that when the occasion was changed, transplanted, the
election of Representatives in Congress went with it.
The majority say, in the views filed by Mr. Speer--
West Virginia was a State in full life, with all the departments of
her local government in active and harmonious operation. It was the
duty--the sworn duty--of her legislature to prescribe the time of
electing her Representatives in Congress. Recognizing this duty, the
legislature, as we believe, did definitely prescribe the time, and if
it did, there was no power in the State or out of it competent to
change the time except Congress and the legislature itself. It is
claimed by those who hold the August election to be valid that the
legislature prescribed only the ``occasion'' and not the time. But this
assumes that the legislature did not only not do its duty, but that it
did not intend to do it. For whence does it derive the power to
prescribe the occasion for holding Congressional elections--to
prescribe an event, the happening of which may be placed utterly beyond
its control or authority? It not only has the power, but it is under
the most positive obligation, to prescribe the time. But naming an
event on the occurrence of which the election shall be held, and
leaving the time of the event to be fixed or changed by another body,
which has no power to fix the time of the election itself, it seems to
us can in no just sense be regarded as a compliance with the mandate of
the Federal Constitution. And hence no intention on the part of the
legislature so to evade its duty is to be inferred, and no such
construction should be placed upon its act, unless the language
absolutely demands it. If the legislature can discharge its duty by
naming an occasion, which occasion may be fixed by some other power in
the State, then that other power may, under the same reasoning,
entirely abolish the occasion. If it is competent to postpone it for a
day, it is equally competent to postpone it for a year or for all time.
Under this view the legislature would legally prescribe the occasion,
which occasion could legally never happen.
Premises which lead to such a conclusion can not be sound, and any
construction of the statute of a State legislature which logically
leads to such a result should be adopted with extreme hesitation, and
only from absolute necessity.
The report of the majority says:
A general State election can only be ``prescribed'' by law. Does it
stand to reason that section 2, chapter 3, of the code meant to fix any
other kind of a State election as the ``occasion'' of the Congressional
election? But this convention could not enact a ``law,'' and if it
could, and had full legislative power, a law (though it may be made to
take effect on the happening of a future contingency) must be a valid
law, in presenti, when it leaves the hands of the legislature, and can
not become a ``law'' by the approval of a popular vote. (4 Seld., N.
Y., 483, etc.; Rice v. Foster, Brightly's Election Cases, 3.)
The right of the legislature to hinge the Congressional election on
the State election was strongly combated in debate. Mr. Lamar said \1\
that the Congressional
-----------------------------------------------------------------------
\1\ Record, p. 843.
Sec. 522
elections must be final and unconditioned by any contingencies which
looked to their nullification. If the makers of the West Virginia law
of 1869 had intended such a construction they would have made it plain.
Mr. Lamar challenged the alleged Virginia precedents; but Mr. Robinson,
of Ohio, replied \1\ by quoting the Virginia law of 1813, which was in
force forty years, and fixed the Congressional elections ``on the first
day of their April court'' in each county. He also quoted a Kentucky
statute of 1802, a Louisiana law of 1841, and a New Jersey law of 1820
to the same effect.
(4) Did the law of 1869 actually prescribe the fourth Thursday of
October as the date for the election of Representatives in Congress
independent of the State election?
Speaking of the West Virginia law of 1869, already quoted, the
minority views say:
The second section says--
At the said election, * * * in the year 1870, and every second year
thereafter, a governor, secretary of state, etc., ``and a
Representative in the Congress of the United States'' shall be elected.
At the said election; at what said election? Clearly that election
mentioned in the first section, to wit, the general election for State,
district, county, and township officers.
The word which is employed to introduce the said second section, as
well as the general meaning and obvious intent of the section, render
this very manifest.
``At the said election for State and local officers Representatives
shall be elected.'' ``At,'' in its ordinary and usual application as
applied to time, means contemporary with, in conjunction with.
Now, how can it be claimed that Representatives in Congress can be
elected at the general election for State and local officers on the
fourth Thursday of October when there is no general election for State
and local officers on that day?
Again, we fail to understand what authority there was for holding an
election for Representatives in Congress only, on the fourth Thursday
of October. The law of the State, the code of 1869, regulating the
manner of holding the elections, prescribing the officers who should
conduct the same, directing as to the making returns, etc., had
reference to the State election--the election of the officers of the
State government as distinguished from the Federal Government. The
election of Representatives in Congress was hinged on to the State
election. It was a mere incident of the State election. They were to be
elected at the general election for State and local officers.
Where is the authority for setting in motion the machinery provided
for the State government to elect Representatives in Congress alone?
Who is to give the requisite notice; who to act as inspectors; who to
furnish places for conducting the election; who to make the returns and
declare the result? The code of West Virginia does not require one of
the officers named in the election act to take a step or lift a finger
at any election of Representatives in Congress apart and distinct from
the State election. Their duty relates exclusively to the State
election and the election of Representatives in connection with such
election.
The majority report joins issue on this point:
Section 2 is simply an enumeration of the officers, the day of whose
election was prescribed under generic terms in section 1.
The legislature therefore had implicitly obeyed the requirement of
Article I, section 4, of the Constitution of the United States, and had
``prescribed'' for the election of Representatives in Congress a day
certain in section 1 and not an occasion in section 2.
The fact that Representatives are specially mentioned in section 2
does not affect the question, except to demonstrate that they are
included in the term ``district officers'' in section 1. So is the
governor mentioned in section 2, though plainly included in the class
of ``State officers'' mentioned in section 1.
-----------------------------------------------------------------------
\1\ Record, p. 847.
Sec. 522
4. Is there any opportunity for ``construction'' here? If there be,
then the old election law of West Virginia, passed November 13, 1863,
quoted above, and which was codified and somewhat abbreviated in
chapter 3 of the code, seems to be important on this question. By the
second paragraph of that act it is provided, ``And on the fourth
Thursday of October, in 1864, and on the same day in every second year
thereafter, a governor, * * * a Representative in the Congress of the
United States,'' etc., shall be elected.
This act prescribed a day certain. Can it be fairly claimed that, as
abbreviated in the codification, there was an ``intention'' to change
the ``prescribed time'' from a day certain to an ambulatory
``occasion?''
The attempt at abbreviation consisted in the mention but once of the
prescribed day, whereas in the act codified it was often repeated, and
in grouping each class of officers to be elected under a generic term
in the first section, which alone prescribes the time.
In the debate \1\ Mr. Robinson, of Ohio, urged that the code of 1869
in failing to specify Representatives particularly in the first
section, had intended to change the more specific designation of the
former law. It was also urged \2\ by Mr. Wilson, of Maryland, that
manifestly the lawmakers of West Virginia never contemplated that the
fourth Thursday of October should continue an election day for
Congressmen after it had ceased to be a State election day. It was
further argued that in 1872 there manifestly could be no State election
in October, because the new constitution had abrogated it.
(5) Did the schedule of the new constitution actually provide for a
general election and repeal the law of 1869 prescribing the October
election?
The minority views say:
It is true it was not held at the same time as had previously been
designated for the general election, but uniformity of time is not of
the essence of a general election. It may be one year in October and
the next in November and yet be the general election. In the State of
Iowa, for instance, the general election every fourth year is held in a
different month from that in which it occurs in the intermediate years.
The legislature in a State where there is no constitutional
inhibition may change the time of the election every year or every
other year, but it is no less the general election.
It is true it was not ``to count'' in case the constitution should
fail to be ratified. It is equally true that an acknowledged general
election does not count in case of a tie. If a mere uncertainty as to
results varies the case in one instance, it does in another.
It is not true that it was an election simply to ratify or reject the
constitution. It was equally an election--made so by the same section
of the schedule--to officer the State. Every officer required to be
elected by the people, from governor down to constable, was to be
elected on that day. The people were required to do exactly that thing
in August, 1872, which in October, two years before, was known to
everybody to be the general election and which all concede will be the
general election when it occurs in October, 1874; and yet for some
reason it is insisted that it was, nevertheless, not a general election
then. It is unnecessary to enlarge upon what is a general election.
Definitions are easy. The case under consideration seems to us to
comprehend all the elements of what we every day speak of and recognize
as a general election. It was the only general election held in 1872.
It was intended to and did provide the entire official staff of the
State government.
The minority hold that the convention had full and ample authority to
change the election from October to August.
The majority, in the views submitted by Mr. Speer, quoted the
language of the schedule and say:
Here is a plain, clear designation by name or class, of all the
officers to be voted for at the August election. Members of Congress
are not named, and as they are not State officers and are not
``required
-----------------------------------------------------------------------
\1\ Record, p. 847.
\2\ Record, p. 935.
Sec. 522
by this constitution to be elected,'' they are excluded from the
provisions of the section upon the familiar maxim, ``expressio unius,
exclusio alterius.'' The convention, apparently conscious of its want
of power, was careful in the use of its language.
Under what authority, then, could an election for Representatives in
Congress be held on the fourth Thursday of August, 1872? The code
prescribed the fourth Thursday of October, and the constitution and
schedule were intentionally silent upon the subject. No change in the
time of holding the Congressional election in West Virginia has been
directly made or attempted by any power, competent or incompetent,
authorized or unauthorized. If made at all, it has been made indirectly
by a body that had no power to make it directly, or, if it had, clearly
did not attempt to exercise it. If the code, as claimed by those who
hold the August election valid, prescribed only the occasion, and that
the general election, yet the new constitution did not provide that the
general elections should be held in August, but ``on the second Tuesday
of October until otherwise provided by law.'' The election held in
August, 1872, was for the special purpose of voting for or against the
constitution; specially for this purpose, because a candidate for any
of the offices voted for might have received every vote cast, and yet
he would not have been elected, or, what is practically the same, would
not have been entitled to hold the office if the constitution bad been
defeated, for there would have been no office to hold. It is not easy
to understand how the ``general elections'' provided for by the code
can be construed to mean a single election, held for an extraordinary
purpose, on a day not prescribed by the legislature, and never to be
held again on that day or for that purpose, and which, in a certain
contingency, is not to elect anybody! The code provides that ``at the
said elections'' certain officers shall be elected; and yet it is urged
that the schedule supplants these ``said elections'' with an election
at which nobody can, in one event, be elected! It seems to us too clear
for argument that no legal election for Congressmen could be held in
August, either under the code or the constitution. There was no
provision in the schedule for such an election, and there was clearly
none in the constitution, for upon its ratification it became operative
for every hour of the day on which the August election is held, and, by
the express language of section 7, article 4, transferred the ``general
elections'' to the second Tuesday of October. Hence, from the earliest
hour of that day it was the organic law of the State that the ``general
elections'' must be held in October, until otherwise provided; and yet
it is claimed that the general elections prescribed in the code were
held in August by virtue and force of this same constitution.
Neither Congress nor the legislature having changed the time of
holding the Congressional election, and the convention not having done
so directly, if changed at all, how was it done?
The schedule could not by implication carry with it the repeal of the
law prescribing a time for the election of Congressmen, as there was
nothing repugnant to the new constitution in that law.
In debate \1\ an equal diversity of views arose as to whether or not
the election provided by the schedule was a special or general
election.
(6) As to the merits of the case, considering the elections as
expressions of the will of the people.
The minority views argue:
In view of the foregoing considerations, and of the further facts
that nearly double the number of votes were polled in August as in
October; that the Representative from the Third district has already
taken his seat and entered on his duties; that in the First district,
at the August election, a joint discussion was held, a larger vote was
polled--larger than that for several of the candidates on the State
ticket--and that no public interest is likely to be subserved by
imposing upon the State the expense, agitation, and delay of another
election, we are in favor of sustaining the August election.
The majority call attention to the fact that in the Second district
the conventions of both parties assumed that the election would be in
October and that the vote received by Mr. Hagans in August was much
smaller than that received by Mr. Martin in October.
-----------------------------------------------------------------------
\1\ Record, pp. 843, 934, 958.
Sec. 523
In the debate this point was dwelt on at greater length, Mr. Todd
denying that a sufficient number of votes was cast in October in the
First district to constitute an election, and quoting various cases in
support thereof.
After having been debated on January 21, 22, 23, 26, and 27,\1\ the
questions came to an issue on the latter date.\2\
The first question was on two resolutions of the majority of the
committee declaring the two persons claiming seats by virtue of the
August election not entitled thereto:
First. Resolved, That Mr. Davis, claiming to have been elected a
Representative in the Forty-third Congress from the First Congressional
districts of West Virginia, was not duly elected, and is not entitled
to a seat in this House.
Second. Resolved, That Mr. Hagans, claiming to have been elected a
Representative in the Forty-third Congress from the Second
Congressional district of West Virginia, was not duly elected, and is
not entitled to a seat in this House.
On behalf of the minority Mr. Hazelton moved to strike out the word
``not'' in the first of the two resolutions; and this motion was agreed
to--yeas 147, nays 82. Then the resolution as amended was agreed to--
yeas 137, nays 81.
Thereupon Mr. Davis appeared and took the oath.
In a similar manner the word ``not'' was stricken from the second
resolution by a vote of yeas 119, nays 88, and then the resolution as
amended was agreed to--yeas 115, nays 75.
Thereupon Mr. Hagans appeared and took the oath.
523. The Colorado election case of Patterson and Belford in the
Forty-fifth Congress.
The Clerk declined to enroll the bearer of credentials regular in
form but showing an election at a time apparently not that fixed by
law.
The House declined to give prima facie effect to credentials perfect
in form, but referring to an election on a day of doubtful legality.
Instance wherein credentials were referred to a committee with
instructions to inquire either as to prima facie or final right.
Form of resolution instructing a committee to inquiry either as to
prima facie or final title to a seat.
On October 15, 1877,\3\ at the organization of the House, after the
roll of Members had been called, the Clerk \4\ announced that there had
been received from the State of Colorado a certificate signed by the
governor and under the seal of the State, declaring the election of
James B. Belford on the 3d day of October, 1876. The Clerk stated that
under the law he could enroll only those whose credentials showed them
to be elected in accordance with the laws of their States respectively,
or the laws of the United States. In the opinion of the Clerk there was
no law of Colorado or the United States authorizing the election of a
Representative to the Forty-fifth Congress on the 3d day of October,
1876. Therefore he had not enrolled the name of Mr. Belford. The Clerk
also announced that he had received a protest signed by Thomas M.
Patterson, claiming to be a Representative-elect from the State
-----------------------------------------------------------------------
\1\ Record, pp. 816, 842, 875, 933, 958-964.
\2\ Journal, pp. 325-331.
\3\ First session Forty-fifth Congress, Record, p. 52.
\4\ George M. Adams, Clerk.
Sec. 524
of Colorado, and accompanying that protest a certified copy of an
abstract of the votes cast in each county on the Tuesday after the
first Monday of November for Representative to the Forty-fifth
Congress. The abstract showed, however, that the votes were never
canvassed by any board of canvassers and that no certificate was ever
issued by anyone declaring the result of the election. While of the
opinion that the November election was the one provided for by law, the
Clerk did not consider that Mr. Patterson's credentials entitled him to
be enrolled.
On October 17,\1\ after the House had been organized, Mr. Eugene
Hale, of Maine, presented Mr. Belford's certificate, and moved that he
be sworn in. The question was discussed on the 17th, 22d, 24th, and
25th. \2\ Mr. Hale urged that as Mr. Belford had a certificate in due
form he was entitled prima facie to the seat. But it was objected that
as the certificate specified that the election was on October 3, it
became the duty of the House in determining the prima facie right to
decide whether October 3 was really the election day.
On October 25,\3\ by a vote of yeas 137, nays 130, the House
substituted for the motion of Mr. Hale the following, proposed by Mr.
John T. Harris, of Virginia:
Resolved, That the certificate presented by James B. Belford and the
certified abstracts of votes cast upon the 7th day of November, A. D.
1876, for Representative to the Forty-fifth Congress, and accompanying
papers, presented by Thomas M. Patterson, upon which each claims the
office of Representative to the Forty-fifth Congress of the United
States from the State of Colorado, be referred to the Committee on
Elections, to be appointed hereafter, with instructions to said
committee to report either as to the prima facie right or final right
of said claimants, as the committee shall deem proper, and that neither
claimant be sworn in until said committee reports.
Then Mr. Hale's motion as amended by the substitute was agreed to.
524. The election case of Patterson and Belford, continued.
A question as to the right of a constitutional convention of a State
to fix the time for the election of Representatives in Congress.
A claimant who received a small vote, not officially canvassed or
declared, but cast on the legal day, was preferred to one receiving a
far larger vote on a day not the legal one.
Votes cast on a legal election day were held valid by the House
although the State official had withdrawn his proclamation calling the
election for that day.
The fact that a large portion of the electors fail to participate
does not invalidate an election held on the legal day.
A question as to the authority of a construction of law by State
officials and people in a case relating to time of electing
Congressmen.
On December 6, 1877, \4\ Mr. John T. Harris, of Virginia, from the
Committee on Elections, submitted the report of the majority of the
committee.
The report disregarded the question of prima facie right, and
proceeded at once to a discussion of the merits of the case.
-----------------------------------------------------------------------
\1\ Journal, p. 25; Record, p. 94.
\2\ Record, pp. 94, 118, 135, 150-163.
\3\ Journal, pp. 38-40.
\4\ House Report No. 14, second session Forty-fifth Congress; 1st
Ellsworth, p. 52.
Sec. 524
In brief, two elections were held in the State, and the question at
issue was as to which, if either, was the legal election. The
circumstances of the two elections were thus stated in one of the
minority views:
At a general election held in that State on the 3d day of October, A.
D. 1876, votes were cast for a Representative in both the Forty-fourth
and Forty-fifth Congresses. A little over 26,000 votes were polled for
the two candidates, which is admitted to be a full vote for the State.
The vote for the Representative for the Forty-fifth Congress, as polled
and returned, was a little larger than that for Representative in the
Forty-fourth Congress. There is no reasonable doubt that both political
parties did, in fact, cast their full vote at that election for
Representative in both Congresses, and that if said election can be
considered as a lawful election for a Member of the Forty-fifth
Congress, James B. Belford is entitled to the seat, he having received
a majority of the votes cast. As to this there is no dispute.
Thomas M. Patterson, who received a minority of the votes cast for
Representative in the Forty-fifth Congress at the election above
mentioned, seems to have claimed, prior to the October election, that
no valid election for the present Congress could be held in October,
but that the 7th of November, the day fixed by Federal statute (if such
statute controlled the matter), was the day on which the election for
the Forty-fifth Congress must be held. He accordingly seems to have
taken steps to have an election held on said 7th of November, and on
that day 3,829 votes were cast for Representative in this Congress, of
which 3,580 were cast for said Patterson and 172 for said Belford, the
rest scattering. If said 7th of November was the lawful day for holding
said election, and if a real election was then held by the people of
Colorado, Thomas M. Patterson is entitled to the seat, he having
received nearly all the votes cast.
A question arose in the course of the discussion as to whether or not
the November election could, in view of the small number of votes cast,
be considered an election. The majority of the committee held that it
could be, saying:
Objection has been made to the seating of Mr. Patterson, upon the
ground that there was a light vote polled at the November election,
compared with the vote at the October election. But Mr. Belford can not
complain of this, nor can his political supporters, for his name was
withdrawn from the canvass three weeks before the November election,
and his supporters were advised not to participate in the election. The
absence of 9a. contest would naturally result in a light vote. At the
recent election for governor and other State officers in the State of
Virginia there were polled in the city of Richmond less than 2,000
votes out ofan aggregate voting population of 13,000. There was no
contest between opposing forces, and a light vote was the result. But
no one will seriously contend that this impaired, in the slightest
degree, the validity of the election. The law is well settled on this
point. Mr. McCrary, in his work on the law of elections, states the
rule thus (see. 448):
``If an election is held according to law, and a fair opportunity is
presented to all voters to participate, those who do not vote are bound
by the result.''
In the case of Rem v. Munday (2 Couper, 238), Lord Mansfield, in
delivering the opinion of the court, said:
``Upon the election of a member of Parliament, where the electors
must proceed to an election because they can not stop for that day to
defer it to another time, there must be a candidate or candidates; and
in that case there is no way of defeating the election of one candidate
proposed but by voting for another.''
In the case of The Commonwealth v. Read (Brightly's Election Cases,
130-131) this rule is recognized to the fullest extent. In this case it
was the duty of the board of county commissioners, under the statute,
to elect a county treasurer. The board consisted of 20 members, all of
whom were present, but a controversy arose among them as to the manner
of voting, whether viva voce or by ballot, and only one of their
number, Abraham Miller, voted by ballot, while the others voted viva
voce. The statute required the election to be by ballot, and by virtue
of this one vote Read claimed to be elected. The court instructed the
jury as follows:
``In all our public elections those who neglect or refuse to vote
according to law are bound by the votes of those who do vote, no matter
how small a minority those who do vote are of the whole constituency.
It is an historical fact that about 40,000 electors who voted for one
or the other of the candidates for governor at the late election did
not cast any vote for or against the amended constitution,
Sec. 524
and yet that instrument has, by a comparatively small minority, become
the supreme law of the land. The result of our opinion is that if you
are satisfied from the evidence that Abraham Miller tendered a vote by
ballot for the defendant, and that his vote by ballot was received as
such, then has the defendant sustained his plea of having been, on the
1st of April last, duly elected county treasurer.''
A former Committee of Elections of this House (Nineteenth Congress,
first session), in the case of Biddle and Richard v. Wing (Clark and
Hall, p. 507), laid down the rule which has always been recognized. The
report in that case held that--
``The law appoints a particular time and place for the expression of
the public voice. When that time is past it is too late to inquire who
did not vote, or the reason why. The only question now to be determined
is for whom the greatest number of legal votes have been given.''
The small vote on the 7th of November in Colorado was not the result
of intimidation of voters; but, on the contrary, the supporters of one
of the claimants of the seat voluntarily absented themselves from the
election by preconcerted arrangement, and for the very purpose of
invalidating the election, so far as it was in their power to do so by
their absence. Conceding that there was an honest difference of opinion
among the voters of Colorado as to the legal day for the election, some
believing the 3d day of October and others the 7th day of November to
be the lawful day, yet it will not be pretended that the proper
construction of an act of Congress is to be determined by the voters of
a particular district. The provisions of law which fix the time or
place of holding elections are mandatory. As to the time of election,
the day cannot be changed even by the consent of all the voters.
(McCrary, sec. 114.)
Ignorance of the proper time or a misunderstanding of the law on the
part of a portion of the electors will not deprive those who do
understand the law and who do act upon the day prescribed by law from
their right to vote and control the election. It is not denied that the
election on the 7th day of November was conducted in accordance with
the general election law of the State, that all electors who desired to
do so were permitted to vote, and that the canvass and result were
honestly made and published.
Mr. J.D. Cox, of Ohio, who filed individual views, held the opposite
view:
In regard to the 7th of November election, the day was not only not
the lawful one, as we have above shown, but the State officials had
become convinced of this and withdrawn the election proclamation and
notices.
The condition of the public mind is probably best described by the
secretary of state, Mr. Clark, who testifies:
``Many were doubting the legality of an election for Representative
in the Forty-fifth Congress on the 7th day of November, others claiming
that it would be a mere matter of form anyway, because there was some
kind of an understanding between Mr. Belford and Mr. Patterson that
whichever was beaten at the October election would not be a contestant
against the other at the November election; others claimed that only a
Member to the Forty-fourth Congress could be elected under the
constitution and that the general assembly must provide by law for the
holding of an election for the Forty-fifth Congress.'' (Record, p. 16.)
When in the midst of the public uncertainty thus described, in which
the confusion was increased by the acts of party committees, prompted
by the fear that their opponents would get the start of them, an
election was nominally held, in which hardly more than one-seventh of
the electors took part, less than one-third, even, of the party
claiming the victory, and almost none of their opponents; when in the
city of Denver, the capital of the State, and where were the political
managers and committeemen, the proportion of votes cast was not larger
than in the rest of the State; and when in eight counties there was not
even a show of election, it would be doing violence to language and to
justice to call the result an expression of the popular will or the
formalities which took place an election by the people of the State.
In the debate on December 13,\1\ this feature of the case was
discussed somewhat at length, the minority citing the case of Buttz v.
Mackey, where after casting out a third of the poll it was decided that
the remainder of the votes were not sufficient to constitute an
election and the seat was declared vacant. In opposi-
-----------------------------------------------------------------------
\1\ Record, pp. 186, 187.
Sec. 524
tion the majority cited the West Virginia election cases of 1873 and
the vote for Mr. Hagans.
But the main issue of the case was as to which election was legal.
Section 25 of the Revised Statutes of the United States provided:
The Tuesday next after the first Monday in November, in the year
eighteen hundred and seventy-six, is established as the day, in each of
the States and Territories of the United States, for the election of
Representatives and Delegates to the Forty-fifth Congress; and the
Tuesday next after the first Monday in November, in every second year
thereafter, is established as the day for the election, in each of said
States and Territories, of Representatives and Delegates to Congress
commencing on the fourth day of March next thereafter.
On March 3, 1875, after the above law had been enacted, the law
admitting Colorado as a State was approved. It contained this
provision:
That until the next general census said State shall be entitled to
one Representative in the House of Representatives of the United
States, which Representative, together with the governor and State and
other officers provided for in said constitution, shall be elected on a
day subsequent to the adoption of the constitution and to be fixed by
said constitutional convention; and until such State officers are
elected and qualified under the provisions of the constitution, the
Territorial officers shall continue to discharge the duties of their
respective offices.
In accordance with this enabling act the constitutional convention of
Colorado adopted the following sections:
One Representative in the Congress of the United States shall be
elected from the State at large at the first election under this
constitution, and thereafter at such times and places and in such
manner as may be provided by law.
Sec. 16. The votes cast for Representative in Congress at the first
election held under this constitution shall be canvassed and determined
in the manner provided by the laws of the Territory for the canvass of
votes for Delegates in Congress.
Section 7 of the Colorado constitution provided:
A general election shall be held on the first Tuesday of October, in
the years of our Lord 1876, 1877, and 1878, and annually thereafter on
such day as may be prescribed by law.\1\
These conflicting provisions left a doubt as to when the election of
1876 for Congressman should be held. The majority report thus sets
forth what was done:
The following facts are established beyond controversy:
1. That the secretary of state did, on the 31st day of August, 1876,
issue his proclamation (printed Record, p. 138) notifying the people
that there would be an election on the 3d day of October, 1876, for
State officers and for ``one Representative for the unexpired term,
Forty-fourth Congress; ``that this proclamation made no mention of the
election of a Representative in the Forty-fifth Congress, and that the
sheriffs of the several counties of the State promulgated like
proclamations and notices.
2. That on the 14th day of September, 1876, the secretary of state
issued his proclamation (printed Record, p. 254) giving notice of an
election to be held November 7, 1876, for a Representative from the
State at large for the Forty-fifth Congress; that no other officers
were to be elected at such election, and that the sheriffs of the
several counties issued like notices in their several counties.
3. That these proclamations by the secretary of state and the
sheriffs of the several counties were the only notices published by
legal authority or otherwise relating to said elections until after the
election on the 3d day of October.
4. That the names of both contestant and contestee were printed
generally upon the tickets used at the election on the 3d day of
October for both the Forty-fourth Congress (unexpired term) and the
Forty-fifth Congress; but there was no agreement between the respective
claimants or their friends
-----------------------------------------------------------------------
\1\ This provision of the constitution appears in full in the
debates, Record, p. 147.
Sec. 524
as to whether the 3d day of October was the day prescribed by law for
holding the election for a Representative in the Forty-fifth Congress.
5. That on the 10th day of October, one week after the election on
the 3d day of that mouth, J.C. Wilson, chairman of a State political
committee favoring the election of Mr. Belford, issued an address
(Record, pp. 45-47) calling on the friends of Mr. Belford to prepare by
registration and otherwise for the election on the 7th day of November.
6. That on the 16th day of October the secretary of state issued a
proclamation withdrawing his proclamation of September 14, which gave
notice of the election on the 7th of November.
7. That on the 14th day of October the said J. C. Wilson, on behalf
of Mr. Belford, withdrew his name from any further candidacy for
Congress, claiming that he had been elected on the 3d day of October to
the Forty-fifth Congress, as well as to the unexpired term of the
Forty-fourth Congress, and advised Mr. Belford's friends to take no
part whatever in the election on the 7th day of November.
8. That the votes cast at the election on the 7th day of November
were counted by the proper officers in 11 counties and transmitted to
the secretary of state, but were not canvassed by that officer or by
any State canvassing board; that in the other 15 counties of the State
no abstracts of the votes cast were sent to the secretary of state by
the county clerks; but the stipulation filed by the parties to the
contest, and above set forth, shows the true result of the votes
actually cast in the whole State.
A diversity of opinion existed in the committee and the House as to
which day the law designated for the election. The majority contended
that November 7 was the legal day. The minority views, presented by Mr.
John T. Wait, of Connecticut, contended that the October election was
the legal one, while Mr. Cox contended that neither was legal.
The majority admitted that the failure of the proper officer to give
notice of the election of a Congressman in October did not invalidate
the election, since it was settled by authorities (Cooley and McCrary)
``that where the time and place for holding an election are fixed by
statute, any voter has a right to take notice of the law and to deposit
his ballot.''
Also the majority held that the failure to canvass the votes and
declare the result ``does not invalidate an election otherwise regular
and valid.''
This therefore left as the important question the determination of
the day fixed by law.
The majority held that the enabling act did not repeal the statute
fixing generally the day of election in all the States, citing
authorities to show the danger of the doctrine of repeal by
implication. The law of Congress was the supreme law of the land, and
Congress having, in the exercise of its constitutional power, fixed the
time for holding the election for Representative in the Forty-fifth
Congress in all the States, from the moment of the passage of the act
of Congress it became and was engrafted upon the statutes of every
State in the Union, and it required no auxiliary State legislation to
give effect to the national statute. But the election laws of the
several States which fixed the places and prescribed the manner of such
elections were not affected, altered, or repealed; and the national
statute fixing the time and the State statutes fixing the places and
prescribing the manner of holding the Congressional elections, formed a
complete election machinery for the election of Representatives in
Congress.
The schedule to the Colorado constitution (sec. 1) provided that all
laws in force in Colorado at the adoption of the constitution should
remain in force until altered or repealed by the legislature. It was
not disputed that there was a well-defined and perfect code of election
laws in force in Colorado at the time of the adoption
Sec. 524
of the constitution. In pursuance of these laws, the State election and
the election for Representative in Congress for the unexpired term of
the Forty-fourth Congress were held on the 3d day of October, 1876, and
Mr. Belford did not question the validity of such laws, for he claimed
his own election on the 3d of October, 1876, to this Congress, by
virtue of an election held in pursuance thereof. These State laws
provided fully for the places and prescribed the manner in which ``all
general and special elections'' should be held in the State. There
were, then, in force in the State of Colorado on the 7th day of
November, 1876, laws providing a full, complete, and perfect election
machinery for electing a Representative to the Forty-fifth Congress--
the time fixed by Congress, and the places and manner provided by the
State statutes.
The minority, after quoting section 16 of the Colorado constitution,
say:
That the constitutional convention assumed it had full jurisdiction
of the question and intended to exercise it the last-quoted section
makes apparent; it continued the election laws of the Territory to the
election in October and no further, and by the provisions of the
constitution fixing the time of the assembling of the first legislature
of the State and its methods of enacting laws, it was impossible for it
to provide election laws for the first Tuesday after the first Monday
in November (see constitution of Colorado); the inference follows it
assumed a Representative to this Congress was to be elected in October,
1876; otherwise it intended not to make provision for such an election.
The minority contended, on another point, that the action of the
people of Colorado settled the question:
But the State of Colorado and her people alone are interested in this
question. She is entitled to representation, and the proper and only
function of the House is to see that, within the principles of
representation underlying the legislative branch of our Government, she
has her constitutional right. And upon this complex question--for we
suppose it must be complex, since the views of members of your
committee are so diverse--her people have put a construction.
We suppose it to be well settled in cases of the doubtful
construction of a statute involving the rights of the people, and only
their rights as distinguished from individual rights, the adoption of a
particular construction with entire unanimity has never been disturbed
by a power only interested to preserve the rights of the State;
certainly never when the only possible injury to the constituency is in
the political associations of the individual who shall represent the
State if that construction shall remain unreversed. And we affirm most
confidently the people of Colorado have construed the provisions
hereinbefore discussed in accordance with our views.
The majority considered that the constitution of Colorado intended to
fix only the day for the election of the first Congressman, and it was
contended in debate that this was as far as a constitutional convention
might go.\1\ The minority views, however, contended that the convention
might fix also the times of other elections, citing the case of Shiel
v. Thayer. This also was urged in debate.\2\
The majority concluded that Mr. Patterson was entitled to the seat
and presented a resolution so declaring.\3\
The minority presented a resolution declaring Mr. Belford entitled to
the seat.
The report was debated at length on December 12 and 14.\4\ On the
latter day the House disagreed to the minority resolution, yeas 109,
nays 126. The proposi-
-----------------------------------------------------------------------
\1\ Record, p. 160.
\2\ Record, p. 180.
\3\ Congress passed a law to remove any ambiguity as to the next
election in Colorado. Second session Forty-fifth Congress, Record, pp.
4082, 4083; 20 Stat. L., p. 112.
\4\ Record, pp. 145, 178-199.
Sec. 525
tion declaring that there had been no legal election was decided in the
negative, yeas 116, nays 117. Then the resolution of the majority was
agreed to, yeas 116, nays 110. Mr. Patterson was then sworn in.\1\
525. The Iowa election case of Holmes, Wilson, Sapp, and Carpenter in
the Forty-sixth Congress.
An instance after the enactment of the law regulating election
contests wherein a contest was instituted by petition.
An election for Congressmen not called or sanctioned by State
officers, and participated in by a fraction merely of the people, would
not be valid even although held on the legal day.
Discussion of the force to be given by the House to a construction by
the proper State officials of a State law fixing the time for electing
Congressmen.
The constitution of a State may not control its legislature in
fixing, under the Federal Constitution, the time of election of
Congressmen.
Reference to practice of agreeing to questions of fact in contested
election cases as liable to abuse.
An instance wherein an elections committee held certain testimony,
which was not legal in form, as an offer of proof.
On December 21, 1880,\2\ Mr. Walbridge A. Field, of Massachusetts,
from the Committee on Elections, submitted a report in the Iowa
election cases raised by the petitions of J. C. Holmes and John J.
Wilson. All of the committee but one concurred in the conclusions of
this report, but four of the ten stated that they did not concur in all
the legal opinions stated in the report. Mr. Walpole G. Colerick, of
Indiana, filed minority views dissenting from both the reasoning and
the conclusion.
The salient facts underlying the question are included in the
following extract from the minority views:
The Constitution of the United States declares that ``The times,
places, and manner of holding elections for Senators and
Representatives shall be prescribed in each State by the legislature
thereof, but the Congress may at any time by law make or alter such
regulations, except as to the places of choosing Senators.'' (Art. I,
sec. 4.)
Under this provision of the Constitution the legislature of the State
of Iowa was authorized and required to prescribe the time, place, and
manner of holding elections in that State for Representatives in
Congress, subject to the power of Congress to alter at any time such
regulations. By virtue of this provision of the Constitution the
legislature of that State did enact a law prescribing ``the time,
place, and manner'' of holding elections for Representatives, and
designated the second Tuesday in October as the time for the holding of
said election. Subsequently, in February, 1872, Congress, exercising
the power conferred upon it by the Constitution, altered the
regulations so prescribed by the legislature of Iowa, as to the time
designated for the holding of said election, by the following
enactment:
``The Tuesday after the first Monday in November, in the year 1876,
is established as the day in each of the States and Territories for the
election of Representatives and Delegates in the Forty-fifth Congress,
and the Tuesday next after the first Monday in November in every second
year thereafter is established as the day for the election in each of
said States and Territories of Representatives and Delegates to the
Congress commencing on the 4th day of March thereafter.'' (Sec. 25 Rev.
Stat., U.S., 1878.)
-----------------------------------------------------------------------
\1\ Journal, pp. 113-116.
\2\ Third session Forty-sixth Congress, House Report No. 19; 1
Ellsworth, p. 322.
Sec. 525
Afterwards Congress modified said law, as follows:
``That section 25 of the Revised Statutes, prescribing the time for
the holding elections for Representatives to Congress is hereby
modified so as not to apply to any State that has not yet changed its
day of election, and whose constitution must be amended in order to
effect a change in the day of the election of State officers in said
State.'' (Sec. 6, ch. 130, acts 2d sess. 43d Cong., approved Mar. 3,
1875.)
The question presented to us is, Does the State of Iowa come within
the exception named in said act, as modified? Must her constitution be
amended ``in order to effect a change in the day of the election of
State officers in said State''?
The constitution of Iowa provides that ``The first election for
secretary of state, auditor, and treasurer of state, attorney-general,
district judges, members of the board of education, district attorneys,
Members of Congress, and such State officers as shall be elected at the
April election in the year 1857, * * * shall be held on the second
Tuesday of October, 1858.'' (Sec. 7, art. 12.)
This language of the constitution gave rise to a doubt as to whether
the constitution would have to be amended in order to effect the change
prescribed by the law of Congress.
At the general election of October 8, 1878, in Iowa, Messrs. William
F. Sapp and Cyrus C. Carpenter were elected Representatives,
respectively, from the Eighth and Ninth districts of Iowa, received
their certificates from the governor, and were seated in the House.
But Mr. J. C. Holmes, in the Eighth district, and Mr. John J. Wilson,
in the Ninth district, offered themselves for election on November 5,
1878, claiming that it was the legal election day, according to the
constitution and laws of Iowa.
In Mr. Holmes's district votes were cast in four townships, and the
report thus summarizes:
The result is, in the case of Holmes, that the papers, if taken to be
true statements, show that in these four townships certain voters got
together and went through the forms of an election for Representative
in Congress; that in all 171 votes were cast, of which Holmes received
162, Sapp 2, and Chapman 6, and there was 1 blank; and that these votes
were never canvassed by any State officers and no certificate of
election issued. In the Congressional Directory, which refers to the
election held in October, Sapp is put down as receiving 15,343 votes,
against 7,453 votes for Keatley, Democrat, and 7,760 votes for Hicks,
National, in all 30,556 votes.
It does not appear that the voters of this Representative district
understood generally that an election was to be held on the 5th day of
November, being the Tuesday next after the first Monday of November,
for Representative in Congress, or that any attempt would be made by
anybody to hold such an election or that any person had notice that any
such election would be held, except the persons voting.
It does not appear that the governor issued his proclamation for any
such election, which by section 577 of the code of Iowa he is required
to issue thirty days before any general election, ``designating all the
offices to be filled by the votes of the electors of the State, or by
those of any Congressional, legislative, or judicial district, and
transmit a copy thereof to the sheriff of each county.''
It does not appear that the sheriff gave ``at least ten days' notice
thereof, by causing a copy of such proclamation to be published in some
newspaper printed in the county, or if there be no such paper, by
posting such a copy in at least five of the most public places in the
county,'' as required by section 578 of the code.
It does not appear that any registry of voters was established, or
that any of the regularly appointed officers, except one township
clerk, took any part in this election, or that the board of supervisors
of the county canvassed the returns and made abstracts thereof, as
provided in section 635 of the code of Iowa, or that any abstracts
thereof were forwarded to the secretary of state or filed by the county
auditor (section 637 of code), or that any canvass was made by the
executive council (sections 651, 652, code), or that any certificate of
election was issued under the seal of the State (section 653 of code).
So far as appears this might have been an election held by a few
persons in only four townships, without
Sec. 525
any knowledge on the part of anybody except themselves that any attempt
to hold an election would be made, and without any recognition at all
by the authorities of the State.
It was stated in argument that Mr. Holmes had his ballots secretly
printed in St. Louis, Mo., and that the election was in fact a secret
to nearly all the electors of the district, but as the committee have
not been authorized to take testimony, the undersigned have considered
this as hearsay, and have not regarded it.
In Mr. Wilson's district the result is thus summarized:
If the statements in these papers are taken to be true there were
votes cast in twelve townships on the 5th of November, 1878, for
Representative in Congress to the number of 357, of which Wilson
received 260 and Carpenter 97. In the Congressional Directory, which
refers to the October election, Carpenter is put down as receiving
16,489 votes, against 1,202 for W. H. Brown, Democrat, and 12,338 votes
for L. Q. Hoggatt, National; in all, 30,029 votes.
There is the same absence of any evidence of action on the part of
the authorities of the State in making proclamation and giving notice
of the election and canvassing the votes cast after the elections as in
Holmes's case, and there is no evidence whatever that it was generally
understood that an election for Representative in Congress was to be
held on the 5th day of November, or that any attempt was to be made to
hold any election on that day, or that it was known to anybody except
the persons voting that any such election was to be held. The papers do
show that the governor of Iowa was advised by the persons named that
such an election could lawfully be held only on the second Tuesday of
October.
Several questions arose from this dispute as to the date of election
and the proceedings resulting therefrom:
(1) Both Holmes and Wilson petitioned, not against the election of
Messrs. Sapp and Carpenter, but that such action might be taken as
would give them their legal rights as Representatives elected in
November. Their petitions were referred to the Committee of Elections.
That committee, after discussing its own powers, said:
The power of the House to judge of the elections, returns, and
qualifications of its members is ample, and it can proceed in its own
way; a committee of the House has such power as is given it.
The importance of election cases demands that the testimony should be
taken on notice to all persons interested, with the right on their part
to cross-examine witnesses and to exhibit testimony in reply, so far as
their rights may be affected by the inquiry.
This may be done under or after the analogy of the statute relating
to contested elections, or by summoning witnesses before the committee,
or in any other manner the House may direct.
None of the certificates or affidavits found in the papers in a
judicial court would prove themselves or be judicially recognized
except the certificates of the sitting Members.
The committee sent notice of the pendency of these petitions to the
Members in Congress from the State of Iowa, and some of them appeared
specially, without acknowledging by their appearance that their rights
could be determined under these petitions. The undersigned agree with
the remainder of the committee that chapter 8 of the Revised Statutes
of the United States, relating to contested elections, has no direct
application to a contest between persons claiming under elections held
on different days, and could only be made applicable by a resolution of
the House authorizing such parties to proceed after the analogy of the
statute and fixing in the resolution a time from which the first thirty
days should begin to run.
The undersigned think that the words ``such election'' in the third
line of section 105 of the Revised Statutes mean an election contested,
and a person claiming to be elected on a subsequent day might not be
elected until more than thirty days after the result of the first
election had been determined, and might not be able under the statute
to give any notice at all; but they think that the provisions of that
chapter or some analogous provisions ought in general to be made
applicable to any contest in which the rights of sitting Members are
involved, or else that the Committee on Elections should be authorized
to summon persons and take testimony, with notice to the sitting
members, and perhaps, in a case like this, to the State of Iowa, to
appear and by testimony and arguments be heard. The
Sec. 525
petitions in these cases should not, therefore, be dismissed merely
because they do not conform to the statutes.
The agreement of parties has sometimes been received as to disputed
questions of fact, but it has always been held that this should be done
with great caution, as these are not merely contests between the
parties, but the rights of the people of the district and of the State
and of the people of the United States are involved and can not be
agreed away.
In these cases no testimony has been taken by the committee; there
are no parties and no agreement of parties. Certain facts have been
stated in argument for and against the cases of the petitioners, and
have been conceded in argument by counsel, but the undersigned do not
feel at liberty to consider them as agreed facts.
It was suggested to the counsel of the petitioners that if they
proposed to prove any other facts than those set forth in their papers,
they should state them; but there was no intimation that they desired
to offer evidence of any other facts than those alleged in the papers.
In determining what should be done with the petitions, the
undersigned were of the opinion that the affidavits and certificates
accompanying the petitions should be regarded as offers of proofs; that
is, statements by the petitioners of the facts which they propose to
prove; and that the committee should consider whether, if all these
statements of facts were taken to be true, the petitions could be
maintained; that if they could not, it would not be worth while to ask
this House for authority to take testimony on the subject, or to take
any other action than to dismiss the petitions.
(2) After reviewing the facts as to the alleged November elections,
the report says:
The undersigned think that it is impossible to hold on these alleged
facts, if proved, that either Mr. Holmes or Mr. Wilson has been duly
elected Representative in Congress, whether the Tuesday after the first
Monday of November or the second Tuesday of October be the lawful day
for such an election, and that there is no need of taking testimony in
these cases, because the facts alleged, if proved, would not entitle
either of these gentlemen to a seat, and that the committee should be
discharged from any further consideration of these petitions; and that
in coming to this conclusion it is not necessary to decide whether the
authorities of the State were right or not in determining that the
legal day of election was the 8th day of October, because if it be
assumed to be true that the 5th day of November was the legal day of
election, the election was not held under the sanction of the
authorities of the State of Iowa, was not generally known so far as
appears, and was not participated in by such numbers of the people of
Iowa that on any grounds this House would be justified in declaring Mr.
Holmes or Mr. Wilson entitled to a seat.
These petitions, as has been said, can not be considered as petitions
of citizens or voters of Iowa asking that the whole election in Iowa
for Representatives in Congress in October should be declared void.
They are not drawn with any such intention and pray no such relief.
So far as appears, if Holmes and Wilson can not be seated they are
content as citizens of Iowa that the existing delegation of Iowa should
retain their seats.
If resolutions should be offered in the usual form declaring either
Mr. Holmes or Mr. Wilson entitled to a seat, the undersigned think that
they should be decided in the negative.
The minority views reach the same conclusion:
While, in my judgment, the failure of the governor to issue a
proclamation, and the omission of other officers to perform their
duties would not alone invalidate the election, as their neglect or
refusal to comply with their duties should not result in depriving the
people of the right to elect their officers at the time fixed by law
for that purpose, yet it is quite evident from the very small vote cast
that the voters of the district generally abstained from voting or
taking any part whatever in said election, and it is fair to assume
that the cause of their failure to do so is alone attributable to the
fact that they believed that the election which had been held in
October for Representative to Congress was authorized by law and legal,
and that said subsequent election was unauthorized and illegal, and by
reason of this belief, so created, they failed to participate in said
election and thereby the will of the people was not fairly or fully
expressed at the election held in November, and therefore I do not
think that the claimants who base their right to the seats in dispute
under and by virtue of said election are entitled to the same.
Sec. 525
(3) The majority further held that under the petitions in the present
case the committee might not investigate the validity of the October
election:
And if resolutions should be offered declaring Mr. Sapp and Mr.
Carpenter entitled to their seats, that they should be decided in the
affirmative, because nothing as yet has appeared to invalidate the
title by which they now hold them; and that as a decision of the
validity of the election of Messrs. Sapp and Carpenter, or perhaps of
all the delegation from Iowa, is not necessary, in the opinion of the
undersigned, in order to make a proper disposition of these petitions,
a decision against them or against the whole delegation of Iowa should
not be made without formal notice to the Representatives of Iowa, and
perhaps to the State of Iowa, and after taking testimony of such facts
and circumstances surrounding the election on the second Tuesday of
October as might properly be considered in construing the statutes and
laws relating to the legality of an election on that day.
Mr. Colerick, having concluded that the law and constitution of Iowa
were so worded that the legal time of election was in November, said
that it followed that the seats of Messrs. Sapp and Carpenter were
vacant, and he proposed resolutions declaring the vacancies.
(4) The majority, while deeming it unnecessary under their view of
the case to investigate the legality of the October election, still
discussed the question, since other opinions had been expressed. In
this discussion the following questions appeared:
(a) The report points out that the House might, if it chose, take
action as to Messrs. Sapp and Carpenter independently of the petitions.
But it appeared that both political parties and the State officials,
with the acquiescence of the great mass of the people, had decided that
the laws and constitution of Iowa were of such tenor as to make the
October election the legal one. These facts were undoubted, although
there might be a question as to whether they were properly before the
committee. They were of great significance, for--
It is the doctrine of the Supreme Court of the United States that
decisions of the highest judicial court of a State upon the meaning of
the State laws and constitution, when its decisions are uniform, are
binding on that court.
The construction of the Constitution and laws of the United States
belongs of course to the courts of the United States in any controversy
before those courts; but in considering whether the laws and
constitution of a State conflict with the laws and Constitution of the
United States as construed by the courts of the United States, those
courts take the laws and constitution of the State as construed by the
courts of the State when their decisions are uniform.
The undersigned are not prepared to hold that the decision of the
highest authority of a State upon the meaning of its constitution in
reference to whether the day of the election of State officers is fixed
by that constitution or not, so far as it is material in determining
the legality of an election of Representatives in Congress, is
absolutely binding upon this House.
In a report from the Committee on Elections, adopted by this House
April 11, 1871, in the matter of the Tennessee election (Digest of
Election Cases, compiled by J. M. Smith, p. 1), the committee say:
``It is a well established and most salutary rule that where the
proper authorities of the State government have given a construction to
their own constitution or statutes, that construction will be followed
by the Federal authorities. This rule is absolutely necessary to the
harmonious working of our complex Government, State and national, and
your committee are not disposed to be the first to depart from it.''
We are not disposed to be the first to depart from it, and we
certainly think that such a decision made in good faith and acquiesced
in at the time by the people of the State, and followed by a full and
fair election, should not be overthrown or questioned except for the
gravest reasons, founded on an undoubting conviction that it was
plainly an error, and that the error had worked some substantial
injury.
Sec. 525
Mr. Colerick, in the minority views, denied this reasoning:
While it is true that the Federal courts have repeatedly held that
the construction placed upon the constitution and laws of the
respective States by the latest utterances of the highest judicial
tribunals thereof, will be respected and adopted by the Federal courts
(7 Wallace, 523; 9 Wallace, 35; 14 Howard, 438; 23 Wallace, 108), yet
they have never, so far as I am aware, extended the limits of this rule
so as to embrace decisions rendered by any other than the judicial
department of a State. It is not claimed that the highest or any other
judicial tribunal of the State of Iowa has given a construction to
these provisions of her constitution, and in the absence of such
decision we are left unrestrained to place our own construction
thereon.
(b) As to the sufficiency of a provision in a State constitution
prescribing the time of electing Representatives in Congress, the
majority report says:
Section 4, article 1, of the Constitution of the United States
confers power on the legislatures of the States to prescribe the time
of electing Representatives in Congress in the absence of any
controlling regulations by Congress.
The provisions of the constitution of a State can not take this power
from the legislature of a State and Congress can not take from a State
the right to fix either by its constitution or by its laws the day of
electing State officers.
The object of section 6, chapter 130, of the acts of 1875, was to
prevent compelling any State against the will of its legislature to
have two elections on different days, one for Representatives in
Congress and one for State officers, or else to change its
constitution.
We are therefore of opinion that the governor of Iowa adopted the
right construction of the constitution of that State in deciding that
it did fix the day of election of State officers (with the exception
perhaps of the attorney-general), whether those State officers were to
be elected on the odd or even numbered years, so that it would require
a change in that constitution to elect State officers (who were
required by the State constitution to be regularly elected by the
people in the year 1878) on the Tuesday next after the first Monday in
November, and that the election of Representatives in Congress, held in
accordance with the laws of the State on the second Tuesday in October,
1878, was held on the day on which alone it could lawfully have been
held.
In reaching this conclusion we disregard altogether the provision for
the election of Members of Congress found in section 7, article 12, of
the constitution of Iowa. That provision may tend to show that it was
the intention of the people of Iowa that Members of Congress should be
elected on the second Tuesday in October of the even numbered years not
Presidential, but the time of electing Members of Congress can not be
prescribed by the constitution of a State, as against an act of the
legislature of a State or an act of Congress, and the amendment to the
twenty-fifth section of the Revised Statutes of the United States is
confined to States whose constitutions fix the day of election of State
officers in said State.
The only apparent exception has been in the constitutions which have
been formed by Territories, and with which such Territories have been
admitted into the Union as States; but this, if it be a valid
exception, does not prove that Territories have the right by a
constitution to fix the time for electing Representatives in Congress
when they become States; but the authority of these provisions rests on
the sanction and adoption of them by Congress in admitting such
Territories as States with constitutions containing such provisions.
(c) As to the interpretation of the constitutional provision of Iowa,
the majority concluded that it would need to be amended in order to
effect a change of the election day, and so the law of Congress fixing
elections in November would not apply in Iowa. Mr. Colerick took the
opposite view.
In accordance with their conclusions the majority reported the
following:
Resolved, That the petitioner, J. C. Holmes, in the matter of his
petition asking to be admitted to a seat in the Forty-sixth Congress as
a Representative from the Eighth Congressional district of the State of
Iowa, have leave to withdraw his petition.
And also a similar resolution applying to Mr. Wilson.
Sec. 526
On January 31, 1881,\1\ these resolutions were agreed to in the House
without debate or division.
526. The election case relating to Delegate Wilcox, of Hawaii, in the
Fifty-sixth Congress.
Failure of a Territorial legislature to prescribe specially time,
place, and manner of electing a Delegate did not invalidate an election
actually held.
Instance of the impeachment of the election and qualifications of a
Delegate through proceedings instituted by a memorial.
Instance of examination by a House Committee of charges of bigamy and
treason against a Delegate.
The organic act of Hawaii fixed the qualifications of the Delegate
therefrom.
A memorial preferring charges against Mr. Robert W. Wilcox, Delegate
from Hawaii, having been referred to the Committee on Elections No. 1,
at a time after the Delegate had taken the oath, that committee on
March 1, 1901,\2\ submitted a report.\3\ The charges were three: (1)
that he was guilty of bigamy; (2) that he was guilty of treason against
the United States, and (3) that there had been no valid election for
Delegate from Hawaii.
1. As to the first charge the committee found that Mr. Wilcox had
married his second wife under an erroneous impression that he had
secured a valid divorce from his first wife. But as there was no
pretense that he had lived with the two women at the same time or held
himself out as the husband of two women the committee did not conceive
that a question of ineligibility was presented.
2. In regard to the charge of treason the committee found:
On the 7th of July, 1898, Congress adopted a joint resolution to
provide for annexing the Hawaiian Islands to the United States. The
organic act providing for a system of government for these islands was
not passed until April 30, 1900. Early in 1899 Wilcox wrote several
letters to an Italian friend of his in Washington, and one letter of
introduction of this friend to certain representatives of the
Philippines then in Washington, in which he gave expression to
unpatriotic and treasonable propositions. In one of these letters he
told the Philippine representatives that he was ready to give his
services to their country and ready to obey orders to go to their
country and fight for the independence of their people.
Your committee has carefully considered the duty of the House in this
relation, and after full discussion and consideration are clearly of
opinion that under the circumstances of the case no action ought to be
taken by the House.
Wilcox was one of the adherents of Queen Liliuokalani, and therefore
of the ``royalist party.'' Against his will, and in spite of his
objection and the objection of his associates, the monarchy was
overthrown and a republic created. No doubt this revolution was in the
interest of civilization and good government, but the attitude of those
who believed in the monarchy and whose government was overthrown was
not to be scrutinized with the same care as if those whose conduct was
questioned could justly be compelled to show instant allegiance to the
new governing power.
When in 1898 the Republic of Hawaii proposed to the United States
terms of annexation, which were accepted by the joint resolution of
July 7, 1898, it is not strange that those who were opposed to the
Republic and hoped for the restoration of the monarchy should be
unwilling to yield allegiance to the power which, as it seemed to them,
had forcibly assumed jurisdiction of their country. At the time
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\1\ Record, p. 1074.
\2\ Second session Fifty-sixth Congress, House Report No. 3001;
Rowell's Digest, p. 601.
\3\ The report was drawn by Mr. R. W. Tayler, of Ohio.
Sec. 526
when Wilcox wrote his treasonable letters the only government which the
Hawaiian people had was that which the Republic of Hawaii had set up,
supplemented by the resolution of 1898, which merely transferred
nominal sovereignty to the United States. When in 1900 Congress
provided a system of government for the Hawaiian people at once just
and generous, by the orderly operation of which the Hawaiian people, on
a full and representative vote, elected Wilcox as their Delegate in
Congress, it was natural that a revolution in public sentiment should
occur.
A Territorial Delegate has no legislative power; he can in no respect
influence the legislation applicable to the States; he has no power to
be feared, and is indeed merely the agent and spokesman of his people.
Such being the case, in view of the changed--the radically changed--
politics relations between the Hawaiian people and the United States,
resulting from the act of April, 1900, we do not think that the conduct
of a native of the Hawaiian Islands a year or more prior to the
adoption of that organic act, however improper it may have been,
abstractly viewed, ought to deprive the Hawaiian people of the
representative whom they have solemnly sent.
3. The objection that the election was not valid was found by the
committee to be technically of some force:
The organic act passed April 13, 1900, has this provision:
``Sec. 85. That a Delegate to the House of Representatives of the
United States, to serve during each Congress, shall be elected by the
voters qualified to vote for members of the house of representatives of
the legislature; such Delegate shall possess the qualifications
necessary for membership of the senate of the legislature of Hawaii.
The times, places, and manner of holding elections shall be as fixed by
law. The person having the greatest number of votes shall be declared
by the governor duly elected, and a certificate shall be given
accordingly. Every such Delegate shall have a seat in the House of
Representatives, with the right of debate but not of voting.''
It is not clear that the expression ``shall be as fixed by law'' does
not mean as fixed by the law then in force in the Hawaiian Islands.
This organic act reenacts all of the election laws of the Republic of
Hawaii, in so far as they are applicable to the conditions then
existing, or made to exist, by the organic act itself. Under the
Hawaiian system of government the only officials elected were the
representatives and senators to the legislature of the Republic. For
the election of these senators and representatives full and complete
machinery was devised and had been in operation up to the time of the
joint resolution annexing the islands. Of course they made no provision
for the election of a Delegate to Congress, nor was any additional
legislation had, except that which is contained in section 85 of the
act of Congress above referred to. With no machinery of election except
that provided by the laws of the Republic of Hawaii and section 85
above quoted, it is claimed that no valid election could be held. In
this view we do not concur.
Previous to the election of November, 1900, the proper officers
issued a proclamation calling for the election of a Delegate to the
United States Congress, as well as for the election of representatives
and senators to the Territorial legislature. Separate ballot boxes were
provided, tickets were printed, and the whole machinery set in perfect
motion for the election of the Delegate to Congress. The same
precautions were observed and the same kind of machinery of election
provided for the election of Delegate as for representative and senator
in the Territorial legislature. Practically all of the people voted,
and quite as many voted for Delegate to Congress as for representatives
and senators in the Territorial legislature. There was a full and free
expression of the popular will, under the theory that the Territory was
entitled to send a Delegate to Congress, and as a result of that full
and free popular expression, Wilcox was chosen by a considerable
plurality. He comes here, therefore, as the agent of his people, chosen
apparently under the forms of and with all the solemnity which
surrounds the most carefully conducted election, and we think he ought
to be permitted to retain his seat as their representative in the
capacity of a Delegate.
We are not uninfluenced, in arriving at this conclusion, by a
consideration of the fact that the people who send him here are to a
large extent unfamiliar with the methods, the policy, and the
inspiration, of a free government.
The report was not acted on by the House, and Mr. Wilcox of course
retained his seat.
Sec. 527
527. The election case of Iaukea v. Kalanianaole from the Territory
of Hawaii in the Fifty-ninth Congress.
Instance in the absence of specific law of an election of a Delegate
on rules based on analogy to the law providing for election of other
Territorial officers.
Ballots which were by error cast with a numbered stub still attached
were deducted from the poll as bearing a distinguishing mark forbidden
by law.
An informal removal of a numbered stub by election officers from
ballots erroneously cast with such illegal distinguishing mark did not
save the ballots from rejection by the House.
On March 26, 1906,\1\ Mr. Michael E. Driscoll, of New York, from the
Committee on Elections No. 3, submitted the report of the committee in
the case of Iaukea v. Kalanianaole from the Territory of Hawaii.
The report sets forth at the outset the following conditions:
The Territory of Hawaii is divided into 6 election districts and 69
election or voting precincts. The said election took place on the 8th
day of November, 1904. Thereafter the votes cast at said election for
the office of Delegate to Congress were counted and canvassed, and as
the result of said count and canvass Hon. Jonah K. Kalanianaole, the
contestee, was declared to have received 6,833 votes, Hon. Curtis P.
Iaukea, the contestant, to have received 2,868 votes, and the Hon.
Charles Notley, the candidate of the Home Rule party, to have received
2,289 votes, making a total of 11,990 votes cast for this office, and
the governor of the Territory issued to the contestee herein the
certificate of election.
The notice of contest was served by the contestant on the contestee
within the time specified by law, and sets forth the allegations and
charges on which this contest is based, and which, briefly stated, are
substantially as follows:
That the official ballots prepared by the secretary of the Territory
of Hawaii and furnished to the various inspectors of election
throughout the Territory were illegal, in that said ballots had printed
thereon numbers whereby they could be identified, contrary to the
express provisions of law regulating such election; that said ballots
with the numbers on were actually cast or voted in many of the
precincts; that the numbers on such ballots corresponded with the
numbers entered on the poll book opposite the electors' names, and by
that method the secrecy of the ballot was destroyed; that many of the
electors in the Territory were, prior to and at the time of said
election, in the employ of the Territorial government, whose officers
and agents were the party friends and supporters of the contestee, and
the fact that the election inspectors could determine how any man voted
afforded a means of intimidating and coercing those employees to vote
for the contestee even against their convictions; that employees of the
Territorial government engaged in the construction of roads and other
public works were organized into political clubs by government
officials in authority over them and were prevented from attending or
participating in meetings held in behalf of contestant, and were
threatened with loss of employment if they manifested any favor for his
candidacy, and that such employees were marched to the polls and voted
in bodies while wearing the uniforms of such clubs, and were threatened
with loss of employment if they did not vote for the contestee; that
there were several precincts in which ballots were cast with the
numbers on, and such numbers were torn off by the election officers
before they were counted or before they were opened and credited to the
several candidates; that this was a mutilation of the ballots, and that
those ballots were void and should have been rejected.
In due time the contestee filed an answer to the notice of contest,
which is, in substance, a general denial of the material allegations
set forth in the notice of contest.
The contestant, through his counsel, expressly stated that the
contestee was not personally responsible, directly or indirectly, for
any of the irregularities or violations of law set forth in the notice
of contest.
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\1\ First session Fifty-ninth Congress, Record, p. 4285; House Report
No. 2651.
Sec. 527
Section 85 of the organic act for the government of the Territory of
Hawaii provides:
``That a Delegate to the House of Representatives of the United
States, to serve during each Congress, shall be elected by the voters
qualified to vote for members of the house of representatives of the
legislature. Such Delegate shall possess the qualifications necessary
for membership of the senate of the legislature of Hawaii. The times,
places, and manner of holding elections shall be as fixed by law. The
person having the greatest number of votes shall be declared by the
governor duly elected, and a certificate shall be given accordingly.
Every such Delegate shall have a seat in the House of Representatives
with the right of debate, but not of voting.''
Section 6 of that act provides: ``That the laws of Hawaii not
inconsistent with the Constitution or laws of the United States or the
provisions of this act shall continue in force, subject to repeal or
amendment by the legislature of Hawaii or the Congress of the United
States.''
Section 64 of said act provides that the rules and regulations for
holding elections under the Republic shall continue in force after the
annexation, with a few modifications therein set forth, which were made
necessary by the change of government from the Republic to its present
status as a Territory of the United States, and no provision is there
made for the election of a Delegate to the Congress.
Section 65 of said act provides: ``That the legislature of the
Territory may from time to time establish and alter the boundaries of
election districts and voting precincts, and apportion the senators and
representatives to be elected from such districts.''
Section 55 of said act, which sets forth and enumerates the
legislative powers of the Territory, confers no jurisdiction on the
Territorial legislature to modify or amend the election law, and makes
no reference to it. The election laws of the Republic contained no
provision for the election of a Delegate to Congress, for no such
office existed, and the organic act has no provision for that purpose
except as contained in section 85, and apparently confers no power on
the legislature of Hawaii to amend or supplement those laws. But Hawaii
is entitled to a Delegate in Congress, and such Delegate must be
elected by the voters qualified to vote for members of the house of
representatives of its legislature. The time for holding such election
is fixed by section 14 of the organic act, but neither in that act nor
in the laws of the Territory is there any definite procedure for the
conduct of such election. Therefore the secretary of the Territory was
obliged to formulate entirely new and independent rules and regulations
for the election of a Delegate, or to so adjust and supplement its
present election laws and machinery as to accomplish the same purpose.
The counsel for both parties to this contest assumed that the Delegate
should be elected according to the election laws of the Territory, so
far as they applied, and made their briefs and arguments on that
assumption. The report in the Wilcox contested-election case (Rowell's
Digest of Contested Election Cases, p. 601) is an authority in support
of their action.
The committee were unanimous (with the possible exception of one
Member) in declaring that they did not find in the record sufficient
evidence of intimidation, fraud, corruption, or irregularities of any
kind to justify it in unseating the contestee or in setting aside the
election.
In conclusion the committee respectfully recommended to the House of
Representatives that the election laws of the Territory of Hawaii be so
amended and supplemented as to provide definitely for the election of a
Delegate to the Congress.
On the remaining question, that of the ballots, five Members
concurred in the report, which purged the poll, while three, Messrs. W.
E. Humphrey, of Washington, Marshall Van Winkle, of New Jersey, and
Frank B. Fulkerson, of Missouri, did not agree that any ballots should
be rejected.
The report found as follows in regard to the ballots:
Under the Hawaiian election law it was the duty of the secretary of
state to have all the ballots printed and sent to the several voting
precincts, to furnish ballot boxes, and generally to provide the ways
and means for holding elections. This he undertook to do. The statute
requires that two suitable ballot boxes be provided for each election
precinct. That one be marked in plain letters, ``For senators,'' and
the other ``For representatives.'' That was done, and a third box was
provided and marked, ``For Delegate.'' The statute requires that
ballots for senators be of blue paper, and the ballots for
representatives of white paper, and in the absence of statutory
direction the ballots for Delegate were
Sec. 527
made of pink paper. Thus far no fault is found with the preparations
made or criticism offered on the action of the secretary of state in
supplementing the statute by providing for separate balloting for
Delegate. Aside from the Delegate to Congress, senators and
representatives to the legislature of the Territory of Hawaii are the
only officers of that government elected by the people. The secretary
of state and election officers of Hawaii, having attempted to follow
the election law in the choice of Delegate, with the apparent consent
of the several candidates for that office, are bound by that law.
They should not be permitted to invoke it for one purpose and reject
it for another. So far as it goes it is definite and clear. It declares
that the ballot shall bear no word, motto, device, sign, or symbol
other than allowed therein, and shall be so printed that the type shall
not show a trace on the back; and if a ballot contains any mark or
symbol contrary to the provisions therein set forth it must be
rejected, and otherwise carefully guards and protects the secrecy of
the ballot. It has no provision for numbering the ballots, or implied
authority so far as your committee can discover. However, in the year
1903 the ballots prepared for the county election did contain numbers.
Those were on the sides of and separated from the main parts of the
ballots by perforated lines. This was done to avoid substitutions and
perhaps other possibilities of fraud or irregularity, and according to
the evidence they proved satisfactory and tended toward honest
elections. In the preparation of the ballots for the general election
of 1904 the secretary of state adopted the same plan so far as
numbering was concemed. But the numbers were not placed in the same
relative positions.
The ballots were printed and put up in pads of 100 each and numbered
in sequences from 1 to 100. Clear across the top of each ballot and
separating it from its stub was a distinctly perforated line, and a
number on such stub corresponded with the number on the upper right-
hand corner of the ballot separated from the balance of it by less
distinctly perforated lines. It was the intention that the ballot
should be torn off from the stub on such large perforated line. But
this, by mistake of the election officers, was not done in all
instances. The two numbers, one on the stub and one on the upper
righthand corner of the ballot proper, were liable to lead to confusion
and mistakes on the part of election officers, some of whom naturally
had not much experience and were not particularly instructed as to
their duty. When an elector was given a ballot his name was put down on
the poll list, and his number, which was apt to correspond with the
last figures on his ballot number. It is therefore clear that if the
number were not removed from the ballot before depositing it in the box
the identity of his vote could be determined by the election officers
or other persons who afterwards examined the ballots and poll lists,
and the secrecy of the ballot was violated. This was admitted by
contestee's counsel. It was the intention of the secretary of state
that the number in the upper right-hand corner of the ballot should be
removed before such ballot was deposited in the box, for the
instructions sent out by him to the voters and election officers alike
contained this provision:
``Before leaving the compartment the voter is to refold his ballot
just as he received it from the chairman, and thus folded deliver it to
the inspector of election in charge of the ballot box and announce his
name. After his name is checked on the register, the inspector shall
remove the perforated slip, so that the ballot shall have no mark of
identification, and then deposit it in the ballot box.''
The ``perforated slip'' here referred to is clearly intended to be
the perforated slip in the upper right-hand corner. This perforation is
not so distinct as the one across the top of the ballot dividing it
from the stub, and it was claimed by contestant's counsel that it was
not in fact a perforation, but an indentation. However, it is very
frequently spoken of by witnesses for both parties as a ``perforation''
and a ``perforated line.'' Besides, if the number were left on the
ballot it would contain a mark of identification, which the instruction
sought to guard against.
In many of the precincts the election officers, by a misconception of
the law and directions, did not detach the numbers in the upper right-
hand corners of the ballots before depositing them in the boxes. Of
those ballots 5,127 were cast. In the afternoon of election day the
secretary of state learned that at some of the precincts ballots were
being deposited with the numbers on, and he immediately notified the
election officers as far as possible, by the use of the telephone and
special messengers, that they were making mistakes. After the polls
were closed some of them undertook to correct those mistakes by
removing the numbers from such ballots before they were counted, or, at
all events, before they were opened and credited to the several
candidates. Of those ballots from which the numbers were removed there
were 2,200, leaving 2,927 on which the numbers were allowed to remain.
The counsel for the contestee in their briefs and arguments admitted
that these 2,927 ballots were void and should be rejected from the
count. But they insisted that the 2,200 ballots from which the numbers
had been removed were valid and should be counted. With this conclusion
your committee can not agree. If the 2,927 ballots from which the
numbers were not removed were void, we are of the opinion that the
2,200 from which the numbers
Sec. 527
had been removed were valid and should be counted. With this conclusion
your committee can not agree. If the 2,927 ballots from which the
numbers were not removed were void, we are of the opinion that the
2,200 from which the numbers were removed were void also. Those ballots
were cast when they were deposited in the boxes, and if void then
nothing which the election officers did afterwards could make them
valid.
Section 95 of the Hawaiian election law provides that ``all questions
as to the validity of any ballot shall be decided immediately, and the
opinion of a majority of the inspectors shall be final and binding,
subject to revision by the supreme court as herein provided.''
But this does not permit the inspectors to add to, take from, or
change any ballot, nor is any power or discretion to do that given them
anywhere in the law. They must pass on the validity of a ballot and
return it just as it is, with their decision thereon, subject to
revision by the supreme court. Open the door and permit election
inspectors, after the polls are closed, to meddle with the ballots,
even to correct their own mistakes, and no one can tell what the abuse
of that discretion may lead to. The duties of such inspectors are and
should be strictly ministerial. There should be no relaxation of the
law in this regard. They should be required to carefully follow the
statute, leaving discretionary power, if at all, to the court or
reviewing boards. This procedure is apt to secure more uniformity and
safer results. If the election inspectors had the right to remove the
numbers from the 2,200 ballots and count them, it may be argued with
considerable force that the canvassing board had a right to remove the
numbers from the 2,927 ballots and count them.
We therefore reject 5,127 ballots as void. Deducting these from the
total of 11,990 it leaves 6,863 valid ballots. Of these, contestee
received 4,097; contestant, 1,578; Mr. Notley, 1,188.
The contestee received a plurality over contestant of 2,519, and a
majority over all of 1,331. We are of the opinion, after a careful
examination of the record, that the secretary of state intended no
wrong in preparing the ballots in the manner described, nor do we find
that a conspiracy was entered into for party success by means of fraud
or intimidation. We believe that the depositing of the ballots without
detaching the numbers was done by mistake and misapprehension on the
part of the election inspectors, and not through any design or
concerted plan to commit any wrong against the contestant or any other
candidate. An examination of the returns confirms this view. One would
naturally expect, if there was a scheme devised for the purpose of
intimidating voters to support contestee, that he would have received
an unduly large proportion of the votes where such scheme was carried
out, whereas the contrary appears to be the fact, for his percentage of
the void and rejected ballots was not as large as of all the ballots
cast nor was it as large as his percentage of the valid ballots.
The following resolutions, in which all the committee concurred, were
agreed to without division by the House:
Resolved, That Curtis P. Iaukea, the contestant, was not elected a
Delegate to the Fifty-ninth Congress from the Territory of Hawaii.
Resolved, That Jonah K. Kalanianaole, the contestee, was duly elected
a Delegate to the Fifty-ninth Congress from the Territory of Hawaii,
and is entitled to a seat therein.