[Hinds' Precedents, Volume 1]
[Chapter 21 - The House the Judge of Contested Elections]
[From the U.S. Government Publishing Office, www.gpo.gov]
THE HOUSE THE JUDGE OF CONTESTED ELECTIONS.
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1. Provision of the Constitution. Section 634.\1\
2. Functions of Elections Committee. Sections 635, 636.
3. House not bound by returns of State authorities. Sections
637, 638.
4. Relations of House to acts of canvassing officers. Sections
639-645.\2\
5. House ascertains intent of voter when ballot is ambiguous.
Sections 646-650.
6. Discretion of House in investigating elections. Sections
651-653.\3\
7. Practice in making decisions. Sections 654-656.\4\
8. Privileges of contestant and returned Member in debate.
Sections 657-672.\5\
9. General practice. Sections 673-677.\6\
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634. The House is the judge of the elections, returns, and
qualifications of its own Members.--``Each House shall be the judge of
the elections, returns, and qualifications, of its own Members.'' \7\
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\1\ House may not delegate this constitutional function. (Sec. 608 of
this volume.) Elections of Delegates as well as those of Members
investigated. (Sec. 772 of this volume.)
\2\ House respects the State laws. (Sec. 822 of this volume, and
secs. 967 and 1011 of Vol. II.) As to duty of House to respect the
construction of State laws made by State officers and courts. (Secs.
346, 352, 423, 521, 525, 574, 608, 630, 731 of this volume, and secs.
856, 909, 959, 996, 1002, 1041, 1048, 1056, 1069, 1071, 1105, 1121 of
Vol. II.)
\3\ House may set aside procedure prescribed by law for conducting
contests and prescribe new procedure in whole or in part. (Secs. 330,
339, 559, 597, 598 of this volume, and secs. 965, 1042, and 1070 of
Vol. 11.) But the House does not unnecessarily set aside the
recommendations of the law. (Sec. 719 of this volume and 852 of Vol.
II.)
See also the cases of Letcher v. Moore (sec. 53) and Blakely v.
Golladay (sec. 322).
\4\ Senate decisions that an election case once decided is res
adjudicata, and not to be reopened. (Secs. 344, 357, 546, 629, 825,
833.) House reopens the Mississippi case in 1837. (Sec. 518.)
Effect of laying on the table a resolution relating to the right of a
Member to his seat. (Secs. 461, 467, 618.)
Effect of negative votes on affirmative declarations as to Member's
right to his seat. (Sec. 2588 of Vol. III.)
\5\ Instance wherein the privileges of the floor were denied to a
claimant to a seat. (Sec. 315.)
Senate declines to admit contestant to the floor (sec. 546); and also
declines to hear contestant in debate (sec. 392).
\6\ A contest was maintained although the returned Member had
resigned. (Sec. 985 of Vol. II.)
A proposition relating to the right of a Member to his seat presents
a question of privilege. (Secs. 2579-2596 of Vol. III.)
\7\ Constitution, Art. I, sec. 5.
Sec. 635
635. The House has declared that an election committee should act as
a judicial body, according to the rules of law.--On January 24,
1870,\1\ Mr. Albert G. Burr, of Illinois, proposed the following
resolution:
Resolved, That from the nature of its duties the Committee of
Elections of the House of Representatives is a judicial body, and in
deciding contested cases referred to such committee the members thereof
should act according to all the rules of law, without partiality or
prejudice, as fully as though under special oath in each particular
case so decided.
A motion to lay this resolution on the table was decided in the
negative, yeas 44, nays 129.
The resolution was then agreed to, yeas 140, nays 23.
At a later day in this session--February 9 \2\--this resolution was
referred to in debate, several Members explaining their attitude.
636. Instance wherein a Member of the House was authorized to act as
a member of the Elections Committee during the consideration of certain
cases.--On December 7, 1869, the House adopted a resolution authorizing
Mr. Michael C. Kerr, of Indiana, to act as a member of the Committee on
Elections in the consideration of the pending election cases from the
State of Louisiana.\3\ Mr. Kerr had been a member of the committee in
the preceding Congress.
637. The Georgia election case of Spaulding v. Mead in the Ninth
Congress.
The certificate of the governor of a State as to the election of a
Member is only prima facie evidence of the fact.
The certificate of a State executive, issued in strict accordance
with State law, does not prevent examination of the votes by the House,
and a reversal of the return.
Discussion of the House's right to judge of the elections and returns
of its Members, as related to State laws.
The Elections Committee in 1805 declined to examine a contention
sought to be established by ex parte testimony.
On December 18, 1805,\4\ the Committee on Elections reported in the
contested election case of Spaulding v. Mead, of Georgia. The committee
found that the law of Georgia required the county magistrates presiding
at the election to transmit their returns to the governor of the State
within twenty days after closing the poll; and required the governor,
within five days after the expiration of the said twenty days, to count
the votes returned, and immediately thereafter to issue his
proclamation declaring the result, and grant a certificate thereof
under the great seal of the State. The votes of three counties were not
returned within the twenty days, nor within the further term of five
days thereafter.
The governor, complying with the terms of the law, issued a
certificate to Cowles Mead, who had a majority of the votes so far as
received when the certificate was issued. When the returns from the
three counties were received it appeared that they changed the result
and gave the majority to Thomas Spaulding. It does
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\1\ Second session Forty-first Congress, Journal, p. 190; Globe, pp.
709, 710.
\2\ Globe, pp. 1158-1160.
\3\ Second session Forty-first Congress, Journal, p. 28; Globe, p.
22.
\4\ First session Ninth Congress, Contested Elections in Congress
from 1789 to 1834, p. 157.
Sec. 638
not appear that irregularities sufficient to change this majority for
Mr. Spaulding were alleged in the three counties. The committee
declined to examine the contention sought to be established by ex parte
testimony, and disputed by contestee, that the delay in forwarding the
late returns was caused by a hurricane which injured the roads.
The committee found that, as the votes in the three counties in
question were good and lawful, no action either by voters or candidate
requiring their forfeiture, they should be counted by the House, the
certificate of the governor although made in accordance with the State
law being only prima facie evidence, and not conclusive on the House.
Therefore the committee reported that Cowles Mead was not entitled to
the seat, but that Thomas Spaulding was entitled to it.
The report was debated at length on the constitutional point as to
what extent the House was judge of the elections and returns of its own
Members. It was contended on the one side that the House must exercise
its right in accordance with the fixed rules of the State of Georgia,
that State having the constitutional right to prescribe them, and they
being conclusive until revoked by Congress. On the other hand, it was
contended that the power of judging the returns was different from the
State power of determining time, place, and manner of elections. The
law of Georgia could only be considered as constituting the governor
the organ of information to this House, the only tribunal to which the
returns can ultimately be made. The fact that the governor had counted
only a part of the votes could not prevent this House counting all of
them. The power of the House to Judge could not be concluded by a State
law or executive.
The House decided, yeas 68, nays 53, that Cowles Mead was not
entitled to the seat; and by a vote of yeas 68, nays 53, that Thomas
Spaulding was entitled to a seat.
638. The New York election case of Colden v. Sharpe in the
Seventeenth Congress.
Votes fairly and honestly given should not be set aside for the
omission or error of the returning officer.
Instance wherein the House decided an election contest against a
returned Member who had not appeared to claim the seat.
On December 12, 1821,\1\ the House concurred with the report of the
Committee on Elections in the case of Colden v. Sharpe, from New York,
seating Mr. Colden and declaring Mr. Sharpe not entitled to the seat.
It appeared that the majority of votes were cast for ``Mr.
Cadwallader D. Colden,'' but that by errors of returning officers 220
votes were returned as for ``Cadwallader D. Colder'' and 395 for
``Cadwallader Colden,'' although all these votes had really been cast
for the contestant under his appropriate name, as was shown by
testimony.
The committee forbear to adduce arguments to show that votes fairly
and honestly given should not be set aside for the omission or mistake
of a returning officer.
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\1\ First session Seventeenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 369.
Sec. 639
Mr. Sharpe, as appeared by testimony, was notified of the intention
to contest the seat, but took no testimony and made no resistance to
Mr. Colden's claim. Indeed, it did not appear affirmatively that Mr.
Sharpe had obtained from the governor of New York a certificate of
election, but it was presumed that he had. It appears that Mr. Sharpe
did not take a seat in the House.\1\
639. The Virginia election case of McKenzie v. Braxton in the Forty-
second Congress.
The House may go behind the ballot to ascertain the intent of the
voter, so as to explain what is ambiguous or doubtful.
In dealing with ballots whereon occurs an error in a name, the
limitations of the House are very different from those of canvassing
officers.
Discussion as to the effect of the use of initials or the omission of
a middle letter of a name on a ballot.
On January 9, 1872,\2\ Mr. George W. McCrary, of Iowa, from the
Committee on Elections, submitted the report of the committee in the
Virginia case of McKenzie v. Braxton.
The official returns gave Lewis McKenzie 10,259 votes, Elliot M.
Braxton 9,065, E. M. Braxton 3,654, and L. McKenzie 935. The report
says:
The board of canvassers decided that the votes set down in the above
abstract as cast for E. M. Braxton should be counted for the sitting
Member, and that those set down in said abstract as cast for L.
McKenzie should be counted for contestant, and they awarded the
certificate to the sitting Member. It will be seen that if this
decision of the board was correct, and if no votes are rejected for any
other cause, the majority of the sitting Member is 1,525 votes.
The contestant, among other things, denied the correctness of the
decision, and on this point the committee found that the case turned.
The law as to the imperfect ballots is thus discussed:
The proof in this case clearly shows that the sitting Member is known
throughout the district as well by the name of E. M. Braxton as by that
of Elliott M. Braxton, and that he is familiarly called Elliott
Braxton; also, that there is no other person in the district, except
the sitting Member's infant son, who bears the name of Elliott M.
Braxton, E. M. Braxton, or Elliott Braxton, and that the sitting Member
was regularly nominated for Congress by the Democratic or conservative
convention of the district; that his letter of acceptance was signed E.
M. Braxton; that he canvassed the district and was the only person of
the name of Braxton who was a candidate. These facts are not disputed
by contestant; but we are asked to throw out a large number of votes,
unquestionably cast in good faith for the sitting Member, upon the
purely technical ground that his name was printed upon the ballots E.
M. Braxton or Elliott Braxton, instead of Elliott M. Braxton. The
grounds upon which the contestant makes this claim seem to be--
1. That we are not permitted to look beyond the ballot to ascertain
the voter's intent; and
2. That the ballots in question can not, upon their face, be held to
have been intended for Elliott M. Braxton.
It may, and doubtless is, sometimes necessary to sacrifice justice in
a particular case in order to maintain an inflexible legal rule, but
all just men must regret such necessity and avoid it when possible to
do so. Your committee are clearly of the opinion that no such necessity
exists here. So far from demanding such a sacrifice of right the law as
well as equity forbids it.
The contestant asks the House to apply the strict rule which has
sometimes, though not always, been held to govern canvassing officers
whose duty is purely ministerial, who have no discretionary powers, and
can neither receive nor consider any evidence aliunde the ballots
themselves. It is mani-
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\1\ Journal, pp. 4, 23, 682.
\2\ Second session Forty-second Congress, House Report No. 4; Smith,
p. 19; Rowell's Digest, p. 265.
Sec. 639
fest that the House, with its large powers and wide discretion, should
not be confined within any such narrow limits. The House possesses all
the powers of a court having jurisdiction to try the question, Who was
elected? It is not even limited to the powers of a court of law merely,
but, under the Constitution, clearly possesses the functions of a court
of equity also. If, therefore, it were conceded that the canvassers
erred in counting for the sitting Member the votes cast for E. M.
Braxton and Elliott Braxton, it would not determine the question as to
what the House should do. What, then, is the true rule for the
government of the House in determining what votes to count for the
sitting Member? Your committee are clearly of the opinion that where
the ballots give the true initials of the candidate's name that is
sufficient, and we, therefore, without hesitation, hold that the
ballots given for E. M. Braxton must be counted for the sitting Member.
Another objection, urged with much more zeal by contestant's counsel,
is to the votes cast for Elliott Braxton, 235 in number. These, it is
urged, can not be counted for Elliott M. Braxton, the sitting Member.
Even if we were not permitted to look beyond the ballots themselves, we
could have little doubt as to our duty; but, under some circumstances,
and for certain purposes, evidence outside of the ballots themselves is
admissible. It is true that no evidence aliunde can be received to
contradict the ballot, nor to give it a meaning when it expresses no
meaning of itself; but, if it be ambiguous or of doubtful import, the
circumstances surrounding the election may be given in evidence to
explain it and to enable the House to get at the voter's intent. We see
no reason why a ballot, ambiguous on its face, may not be construed in
the light of surrounding circumstances in the same manner and to the
same extent as a written contract.
Thereupon Cooley on Constitutional Limitations, Attorney-General v.
Ely (4 Wis., 430), People v. Ferguson (8 Cowan, 102), People v. Cook
(14 Barbour, 259), People v. Seaman (5 Denis, 409), and People v.
Cicote (16 Mich., 283). The latter case is quoted from at length.
The report then says:
The cases are numerous where an imperfect ballot, by the aid of
extrinsic evidence, can be made clear and perfect. No harm can result
from admitting such extrinsic evidence so long as it is only admitted
to cure or explain such imperfections and ambiguities as could be cured
if they occurred in the most solemn written instruments, and to this
extent and no further would we carry it. Thus guarded and qualified,
the rule is most salutary and most just.
Since, therefore, the testimony clearly shows that the votes cast for
Elliott Braxton were intended for the sitting Member, we deem it our
duty to count them for him. We might, with great propriety, rest this
ruling upon another and different ground. The doctrine is well settled
that the law knows but one Christian name, and accordingly the courts
have uniformly held that the omission of the middle name, or the
initial thereof, is not a material or fatal omission. The following are
among the authorities upon this point: People v. Cook (14 Barb., 259,
and same case, 4 Selden, 67), where this rule is applied to a
contested-election case very much like the one before us; Milk v.
Christie (1 Hill, N. Y., 102); Bratton v. Seymour (4 Watts, Pa., 329);
Franklin v. Talmadge (5 Johns., 84).
The sitting Member might with safety have relied upon this doctrine
and insisted that the ballots cast for Elliot Braxton designated
Elliott M. Braxton with sufficient certainty. He has, however, gone
further, and proved the facts necessary to show clearly that such
designation was intended by the voters.
Contestant insists that the committee and the House ought to adopt
and follow an opinion given in 1860 by the attorney-general of Virginia
to the then governor of that State, and which it is insisted covers the
question now under consideration. An examination of that opinion will
show that the question decided by the attorney-general was not the same
as that now before us.
Where a wrong initial is given, the case is, of course, very
different from one where the first name is correctly given and the
middle initial omitted; and so, if the Christian name is given as
Anthony when it should have been Andrew, or where the surname is
erroneously given. These are very different questions from the one
before us, which is simply whether votes for E. M. Braxton and for
Elliot Braxton shall be counted for Elliott M. Braxton. We leave out of
view, for the present, votes cast for C. M. Braxton and Braxton. The
opinion of the attorney-general, then, does not cover this case.
But a further and still more conclusive answer to this position of
contestant is found in the fact
Sec. 640
that the opinion of the attorney-general was given to an executive
officer to guide him in the discharge of purely ministerial duties, and
not intended to be a rule for the guidance of courts or legislative
bodies in the exercise of their judicial functions. The opinion in
question may, and possibly does, lay down the correct rule for the
government of ministerial officers whose powers are limited to a
consideration of what appears upon the face of the returns themselves;
but, as we have already seen, a very different rule applies when the
parties in interest come before a body clothed with full power to pass
upon their rights in the light not only of the returns themselves, but
of all competent evidence.
640. The election case of McKenzie v. Braxton, continued.
The contestant in an election case must confine his proof to the
allegations of his notice.
In the absence of any statutory prohibition and no injury being shown
to complainant, the numbering of the ballots was held not to invalidate
the election.
The failure of an officer to certify properly a return does not
prevent the admission of secondary evidence to prove the actual state
of the vote.
The committee also passes on the following questions not vital to the
determination of the case--
1. The contestant objected to the vote of certain precincts because
the ballots were numbered, and in his argument included Murkham
precinct, which was not mentioned in the notice of contest. ``The House
has often held,'' says the report, ``that the contestant must confine
his proof to the allegations of his notice.''
2. The ``numbering of the ballots cast at an election, in the absence
of a statute expressly so declaring, does not of itself invalidate an
election, unless some injury is shown to have resulted to the party
complaining.'' The former Virginia law had required the numbering of
the ballots, and at a few precincts the officers, unaware of the repeal
of the law, continued the practice. Although this numbering rendered if
possible to show how each person voted, it is not claimed that it was
done in this case, or that the tickets were numbered for any such
purpose or for any improper or unlawful purpose. Therefore the
committee concluded that the votes should not be thrown out.
3. As to the failure to certify certain returns, the report says:
Of course the returns of an election must be certified by the proper
officers. If not so certified, they prove nothing, and when offered in
evidence, if objected to, they must be rejected. It was so held by the
House in Barnes v. Adams in the last Congress. It does not, however,
necessarily follow that the vote cast at such an election is lost or
thrown away. An uncertified return does not prove what the vote was--
that is all. The duly certified return is the best evidence, but if it
be shown that this does not exist, we doubt not secondary evidence
would be admissible to prove the actual state of the vote. The failure
of an officer, either by mistake or design, to certify a return, should
not be allowed to nullify an election, or to change a result, if other
and sufficient and satisfactory evidence is forthcoming to show what
the vote actually was.
In accordance with their findings the committee reported a resolution
confirming the title of sitting Member to the seat.
On January 18 \1\ the resolution was agreed to without debate or
division.
641. The South Carolina election case of Lee v. Rainey in the Forty-
fourth Congress.
While canvassing officers must return votes as they are cast, the
House is not bound by the return.
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\1\ Journal, p. 182; Globe, p. 470.
Sec. 641
The House may go behind the ballot to ascertain the intent of the
voter so as to explain what is ambiguous or doubtful.
The name of a candidate being written wrongly on a ballot, the House
examined testimony as to the intent of the voter.
On May 24, 1876,\1\ Mr. John T. Harris, of Virginia, submitted the
report of the committee in the South Carolina case of Lee v. Rainey.
The report says:
In this case the main question to be determined is, whether 669
ballots bearing ``J A S H R A I N E Y, '' in the county of Georgetown,
were intended for and cast for ``Joseph H. Rainey,'' for if those
ballots are counted for Joseph H. Rainey, then he has a decided
majority and is duly elected; while, on the other hand, if the same are
not counted for him he is not elected. As this question is clearly
decisive of the case, the committee have not deemed it necessary to
consider the other questions raised by the notice of contest and
answer. There is a question of law and a question of fact involved. The
question of law is, whether the House can look beyond the ballot to
ascertain the voter's intent. The committee think it clear, although
canvassing officers charged with purely ministerial duties may not go
outside of the ballot, whatever may be the defect in the same, but must
make their return upon the ballots as they appear on their face, that
the House, as the final judge of the elections, returns, and
qualifications of its Members, has not only the right but the duty,
when a ballot is ambiguous or of doubtful import, to look at the
circumstances surrounding the election explaining the ballot, and to
get at the intent and real act of the voter.
This will not give the right to contradict the ballot itself, but
simply to explain what is uncertain and ambiguous in reference to it.
This rule of law has become too well settled to admit of question.
(McCrary on Elections, chap. 7, and cases there cited; Gunter v.
Wilshire, first session Forty-third Congress, Report 631.)
Such being the law, the remaining question is purely one of fact,
viz: For whom did those who cast the ballots ``J A S H R A I N E Y''
intend to vote and for whom did they vote? What are the facts upon this
point? It appears that only two candidates were nominated, viz: Samuel
Lee and Joseph H. Rainey. No other persons appear to have been named in
connection with the office of Representative to Congress from that
district. There is no pretense that any person by the name of James H.
Rainey, other than Joseph H. Rainey, was a candidate for that office,
and it is not seriously contended by any one that any person who cast
the ballot ``J A S H R A I N E Y'' cast it intentionally for any other
than Joseph E. Rainey, the sitting Member.
The evidence clearly shows that the ballots printed ``J A S H R A I N
E Y'' were printed for ``Joseph H. Rainey,'' and the fact that such was
the case was explained to the voters to whom the tickets were given by
the party who had them printed. (Evidence of Joseph Bush, p. 27;
Charles H. Sperry, p. 28.) There is no evidence in this case showing
that there was at the time of the election any man in the district by
the name of James H. Rainey, who was eligible to the office of
Representative to Congress, or who had ever been spoken of for that
office, or that any person did vote for ``James H. Rainey,'' except one
Russell Green (p. 41), and he testified ``that he did not know that
Joseph H. Rainey was running,'' and then says ``that he had made up his
mind before going to the poll that he did not intend to vote for Joseph
H. Rainey.'' His evidence is not of such a character as to entitle it
to weight, and your committee are far from being satisfied that he ever
knew that the name ``J A S H R A I N E Y'' was upon the ticket he
voted. The fact that no person by the name of Rainey other than Joseph
H. Rainey was named in connection with the office of Representative to
Congress is a fact entitled to the greatest weight in determining the
intent of the voter.
The report goes on to say that it is clear that those who voted for
Jas. H. Rainey did it ignorantly or with the intention of casting blank
ballots. It could not be presumed that 669 voters thus intended to cast
blank ballots. And the evidence showed clearly that they intended to
vote for sitting Member. The report says:
If this House can not consider at all the surrounding circumstances
attending the election to learn the intention of the voter, then how is
it to determine the identity of the person voted for? How
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\1\ First session Forty-fourth Congress, House Report No. 578; Smith,
p. 589; Rowell's Digest, p. 313.
Sec. 642
will it determine between two men of the same name if it can not look
to the surrounding circumstances to determine who was voted for? The
House must, in such a case, certainly look to something besides the
face of the ballot; it must inquire into the intent of the voter. It
would, indeed, be a singular position for this House to assume that,
because there are two men bearing the same name as the one voted for in
a district, it has no power to determine who was voted for or elected.
If it can not, how can it determine the elections, returns, and
qualification of its Members? It has always examined into the intent of
the voter when it did not clearly appear by the face of the ballot,
where it could be done without contradicting the ballot.
The report then quotes the cases of Gunter v. Wilshire and McKenzie
v. Broxton, and further says:
The decision of the committee to count these votes for Joseph H.
Rainey can be fully sustained upon the ground that Joseph H. Rainey
was, on election day, in the county of Georgetown, known by the name
``J A S H R A I N E Y'' as well as by the name Joseph H. Rainey. There
is evidence that the voters were so informed at the polls; were
informed that J A S H R A I N E Y was the same as Joseph H. Rainey, and
there is every reason to believe that the voters so regarded it, and in
a criminal case this would be evidence tending to show that he was
known by the one name as well as by the other, and upon this evidence
the House has not only the right, but is bound so to find, if satisfied
of the fact. Your committee believe that great injustice will be done
the First district of South Carolina should the House, where there is
really no serious question made by any one but that the ballots for ``J
A S H R A I N E Y'' were intended for Joseph H. Rainey, fail to count
them for him.
The report further points out that there is equal reason for the
decision which is reached, if the name was printed wrong with
fraudulent intent.
Therefore the committee report a resolution confirming title of
sitting Member to the seat, and on June 23 \1\ the House agreed to the
resolution without debate or division.
642. Declaration of a House committee that returning boards with
judicial authority are dangerous.--In a report submitted on March 3,
1879,\2\ Mr. Clarkson N. Potter, of New York, from the committee
appointed to investigate alleged frauds in the Presidential election of
1876, included the following:
When the Democrats recovered control of Louisiana they abolished the
returning board, and there no longer exists in the United States any
tribunal having discretion to receive or reject at pleasure the votes
cast. No such body ought ever again to be permitted. If the wisdom of
the fathers and the experience of free government have settled
anything, it is the necessity of keeping the functions of judging and
of administering the laws separate. No tribunal ought to be clothed
with such a discretion; no persons ought to be trusted with absolute
powers, upon the exercise of which the success of their own party and
their own power and that of their friends depend.
643. The Texas election case of Houston v. Broocks in the Fifty-ninth
Congress.
The House does not change the returned result of an election because
of frauds and irregularities unless they be sufficient to change the
result.
Instance wherein an elections committee considered a question not
raised in the notice of contest.
The name of a candidate for United States Senator on the ballot was
held not to be such distinguishing mark as would destroy the secrecy of
the ballot.
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\1\ Journal, p. 1143; Record, p. 4076.
\2\ Third session Forty-fifth Congress, House Report No. 140, p. 64.
Sec. 644
On June 23, 1906,\1\ Mr. M. E. Driscoll, of New York, from the
Committee on Elections, No. 3, submitted the report of the committee in
the case of Houston v. Broocks, from Texas. As to the status of the
case, the report says:
The said election took place on the 8th day of November, 1904.
Thereafter the votes cast at said election for the office of
Representative in Congress were counted and canvassed, and as the
result of said count and canvass, the Hon. M. L. Broocks, the
contestee, was declared to have received 13,119 votes, and in like
manner the Hon. A. J. Houston, the contestant, was declared to have
received 4,161 votes, and in pursuance of said count and canvass the
Hon. M. L. Broocks received the certificate of election by a plurality
of 8,958 votes.
Three questions were involved in decision:
1. The committee, without dissent, held as follows as to the merits
of the election:
While there was some evidence of fraud, irregularity, and
intimidation in several of the counties of said district, your
committee is of the opinion that such frauds, irregularities, and
intimidations, separately or combined, were not so gross, general, or
far-reaching as to account for the large plurality of votes cast and
counted for the contestee, and your committee does not feel justified
in rejecting a sufficient number of the votes cast for the contestee on
these grounds to give the contestant a plurality, nor is your committee
of the opinion that the refusal of Democratic officers empowered by law
to appoint judges and clerks of elections, to appoint Republican judges
and clerks where requested by Republican voters so to do, justifies it
in rejecting a sufficient number of votes which were cast and counted
for the contestee to give the contestant a plurality and to say that he
was under the law fairly elected Representative in Congress from said
district.
2. The next question was one which was not referred to in the notice
of contest, but which the committee nevertheless notice in their
report:
The point is made in the evidence and in contestant's brief that all
the Democratic ballots cast in the Second Congressional district of the
State of Texas were illegal, invalid, and void, for the reason that on
them appeared the name of C. A. Culberson for United States Senator, on
the ground that this was a distinguishing mark or device. The names of
party candidates for United States Senator were not on other party
tickets, and it is claimed that this was a distinguishing mark or
device. With this claim we can not agree. The words, ``For United
States Senator, C. A. Culberson,'' were no more a distinguishing mark
or device than were the words, ``For Congressman, Second district, M.
L. Broocks.''
Both names were on the same ticket next to each other. The names of
all the State Democratic electors were on the same ticket. It was the
intention to give notice to all that it was the regular Democratic
ticket for that district, for the words, ``Official ballot, Democratic
party,'' were distinctly written at the top of the ticket above all the
names. It is difficult to see how the name of Senator Culberson could
distinguish and identify those ballots, which were without that fully
identified and distinguished from all others. This name can hardly be
said to be a ``picture, sign, vignette, device, or mark,'' and did not
disclose the secrecy of the ballot. This point is very technical, and
is not mentioned in the notice of contest. Election contests should be
decided on the substantial merits. The will of the electors as
expressed in their ballots should be recognized and respected, and your
committee does not believe that all of the ballots cast for the
contestee in said election should be rejected on account of this error,
which did not affect the result.
644. The case of Houston v. Broocks, continued.
It being charged that the State laws establishing qualifications of
voters violated the reconstruction laws and the Constitution of the
United States, a divided committee considered the question one for the
courts.
-----------------------------------------------------------------------
\1\ First session Fifty-ninth Congress, Record, p. 9036; House Report
No. 4998.
Sec. 644
The laws of Texas have a poll-tax qualification for suffrage, which
discriminates between residents of the city and the country.
The validity of the election laws of a State being impeached and the
question not being determined, the House declared a contestant not
elected, but did not affirm the title of returned Member, who had a
majority of the votes cast.
3. The real issue in the case was set forth by the majority of the
committee:
The serious question for the consideration of your committee and of
the House in the determination of this contest is involved and set
forth in the first and second counts in the notice of contest. These
counts may be considered together, because each of them questions the
constitutionality of the election law of the State of Texas, which was
approved April 1, 1903, and under and in pursuance of which the
elections in the State of Texas were conducted in the year 1904. That
law makes the payment of a poll tax a necessary qualification for the
right to vote by any citizen or class of citizens of the United States.
That poll tax in cities of 10,000 inhabitants or upward, is $2.75, and
in small towns and rural districts $1.75, and it must be paid on or
before the 1st day of February to enable the person paying it to vote
at the following November election. In this particular case no man
otherwise qualified to vote for Representative in Congress was
permitted to vote on the 8th day of November, 1904, unless he had paid
his poll tax on or before the 1st day of February, 1904, and produced
his receipt for such payment, or otherwise proved that he had paid it.
It is claimed by the contestant that this law is illegal, invalid,
and unconstitutional, because it is in direct conflict with and in
violation of the act of Congress approved March 30, 1870, as follows:
AN ACT to admit the State of Texas to representation in the Congress
of the United States.
Whereas the people of Texas have framed and adopted a constitution of
State government, which is Republican; and whereas the legislature of
Texas, elected under said constitution, has ratified the fourteenth and
fifteenth amendments to the Constitution of the United States; and
whereas the performance of these several acts in good faith is a
condition precedent to the representation of the State in Congress:
Therefore
Be it enacted by the Senate and Howe of Representatives of the United
States of America in Congress assembled, That the said State of Texas
is entitled to representation in the Congress of the United States. * *
*
* * * And provided further, That the State of Texas is admitted to
representation in Congress as one of the States of the Union upon the
following fundamental conditions: First. That the constitution of Texas
shall never be so amended or changed as to deprive any citizen or class
of citizens of the United States of the right to vote who are entitled
to vote by the Constitution herein recognized, except as a punishment
for such crimes as are now felonies at common law, whereof they shall
have been duly convicted under laws equally applicable to all the
inhabitants of said State: Provided, That any alteration of said
constitution prospective in its effects may be made in regard to the
time and place of residence of voters. * * *
It is also claimed by the contestant that this poll-tax qualification
for citizens of the United States violates the fourteenth and fifteenth
amendments of the Federal Constitution. It is further alleged that the
enforcement of this poll-tax law disqualified and prevented from voting
a very large number of colored voters, citizens of the United States,
who would except for this law and its enforcement have been qualified
to vote for Representative in Congress at the election held on the 8th
day of November, 1904; that the overwhelming majority of those colored
voters who were disfranchised by said poll-tax law and its enforcement
were Republicans, and would have voted for the contestant at said
election, and that were it not for said poll-tax law and its
enforcement the contestant would have received a majority of the votes
cast at said election and would have been duly elected as
Representative in Congress from said Congressional district.
These allegations and the evidence taken under them directly question
the constitutionality of the Texas constitution adopted in the year
1902, and the Texas election law passed in the year 1903, and applied
to the election in this particular case. If this Committee on Elections
and the House of Representatives should hold that the election laws of
the State of Texas are violative of the Federal
Sec. 644
Constitution, the conclusion would necessarily follow, not that the
contestant was elected, but that the whole election was null and void,
and that the Second Congressional district of the State of Texas is not
entitled to representation in Congress.
This is the only election contest from that State before the House of
Representatives for determination. But the decision in this case,
construing the election laws of the State of Texas, applies to the
whole State, and if the contestee in this particular case is not
legally entitled to retain his seat, then none of the sixteen
Representatives from that State are legally entitled to seats on the
floor of this House, and none of them will in the future be entitled to
seats if elected under the present law in their State. Therefore the
gravity of the question involved in this particular case is manifest.
Texas is one of the great States of the Union, and is entitled to its
full delegation in Congress. But its constitution and laws should
conform to the Constitution and laws of the United States so as to
leave no cloud on the title of that delegation to their seats.
Your committee appreciates the unusual responsibility which devolves
on it in the determination of this question, and each Member has
applied himself to its consideration with as much honesty, patriotism,
and ability as he possessed. If we declared this election void and our
report were confirmed by the House, all the Representatives from that
State, and the State itself, would suffer a great and irreparable
wrong. On the other hand, if this House should adopt a resolution that
the contestee was duly elected Representative in Congress from the
Second Congressional district, with reference to which several members
of this committee, at least, entertain grave doubt, that action would
stamp with approval the present constitution and election laws of the
State of Texas. We have therefore concluded to follow neither course.
We report that the contestant was not elected, but do not report that
the contestee was elected. We are silent on that phase of the case. We
realize that we may be accused of shirking our responsibility. To this
we answer that the responsibility is so great, and the consequences of
a mistake would be so serious and far-reaching, that we respectfully
request that this important question be referred to the Supreme Court
of the United States for their decision. Your committee is aware that a
decision in this case concerns not alone the State of Texas. That many
other, if not all, of the reconstructed States have in recent years
adopted constitutions and enacted election laws which are claimed to be
in violation of the Federal Constitution and laws. That election
contests are brought before every Congress, predicated on the alleged
violation of the Federal Constitution and laws by the constitutions and
laws of the States from which these contests come. All those questions
are substantially alike, and a decision in this case would be a
precedent in many others which may arise.
We have precedents which may be considered authority for our action
in this case, which in effect advise the reference of this
constitutional question to the Supreme Court. In the last Congress, two
years ago, the contested election case of Prioleau v. Legareu, from the
State of South Carolina, was referred to this committee. The question
presented in that case was substantially the same as the one in this.
While the constitution and election laws of the State of South Carolina
are not exactly like those of Texas, the constitutionality of the
election law was raised, and the question was practically the same as
the one under consideration. This committee advised the contestant, Mr.
Prioleau, and his counsel to make a case and present the question to
the courts for determination, and did not submit a report or
resolutions to the House.
Also, in the last Congress, the contested election case of Dantzler
v. Lever, from South Carolina, involving exactly the same questions,
was referred to the Committee on Elections No. 1. That committee
submitted a resolution, which was adopted by the House, that the
contestant was not elected, and the report, written by the chairman,
Mr. Mann, of Illinois, recommended that the constitutional question be
referred to the Supreme Court for decision. Four contested election
cases were brought from the same State to this Congress, all of which
were referred to the Committee on Elections No. 1, and we are informed
that the same disposition will be made of them. Since the questions in
those cases are exactly the same as the one raised two years ago in
Dantzler v. Lever, no other conclusion can be expected. Therefore, this
committee, in order to be consistent with its action in the last
Congress, and in deference to the decision of the House in the other
cases referred to, notwithstanding the individual opinions of some of
its Members, feels constrained to submit this report and the resolution
in pursuance thereof.
If this House, with its large Republican majority, should declare the
election held in the Second Congressional district of Texas void and
unseat the contestee in this case, such action would very likely
Sec. 644
be looked upon as a partisan decision. And if perchance the next
Congress should have a Democratic majority and the same question should
arise, the strong probabilities are that it would be decided the other
way. Such conflicting decisions would lead only to confusion,
uncertainty, and possibly to more serious consequences. The Supreme
Court is a continuing body. We are led to believe that the members
thereof are not influenced by political considerations; that partisan
spirit is eliminated as far as possible. The people respect that
tribunal and bow with deference to its judgments. The constitutional
questions presented by the election laws of Texas and other
reconstructed States should be submitted to that court for final
determination. Such a decision would be recognized by the people of
those several States and by the Congress as the law of the land, and
would be a positive benefit to all concerned.
If the election laws of Texas are violative of the Federal
Constitution and the reconstruction acts, those laws should be repealed
or so amended as to conform with the decision and opinion of the
Supreme Court. If they should be held to be legal and valid, then its
Representatives would hold their seats without any question or cloud on
their titles. Furthermore, the Democrats as well as the Republicans of
that great State and other States similarly situated should unite and
assist one another in submitting those issues to the Supreme Court, and
in obtaining from that great tribunal a comprehensive and positive
decision on their merits, in order that those people may know what are
their political rights.
Mr. Henry Bannon, of Ohio, did not concur in the opinion of the
committee, but filed minority views, as follows:
It seems to me that the propositions to be considered in this case
are the following:
1. Texas was admitted to representation in Congress as a State of the
Union under the provisions of an act of Congress approved March 30,
1870, by the terms of which it was provided, as a fundamental condition
to admission--
``That the constitution of Texas shall never be so amended or changed
as to deprive any citizen or class of citizens of the United States of
the right to vote who are entitled to vote by the Constitution herein
recognized, except as a punishment for such crimes as are now felonies
at common law, whereof they shall have been duly convicted under laws
equally applicable to all the inhabitants of said State.''
2. On July 28, 1868, the proclamation was issued that the fourteenth
amendment had been ratified. Section 2 of said amendment reads as
follows:
``Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of
persons in each State, excluding Indians not tared. But when the right
to vote at any election for the choice of electors for President and
Vice-President of the United States, Representatives in Congress, the
executive and judicial officers of a State, or the members of the
legislature thereof is denied to any of the male inhabitants of such
State, being twenty-one years of age, and citizens of the United
States, or in any way abridged, except for participation in rebellion
or other crime, the basis of representation therein shall be reduced in
the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.''
3. On April 1, 1904, Texas enacted a law making the payment of a
certain poll tax on or before February 1 preceding the November
election a condition precedent to the right to vote. This legislation
has deprived some citizens of the United States residing in Texas of
the right to vote.
It is contended in this case that Texas has deprived herself of the
right to any representation in Congress; but, if not, that the
contestant was duly elected as a Representative from that State.
There is nothing in the proof that would warrant a finding that
contestant was elected. That is sufficient to dispose of that
contention.
I do not think that the present election laws of Texas deprive that
State of all representation in Congress. If these laws deprive some of
her citizens of the right to vote, the remedy is not to deny all
representation in Congress, but the remedy is found in the second
section of the fourteenth amendment. That remedy, I think, is exclusive
of all others. If Texas has deprived some of her citizens of the right
to vote, her representation in Congress should be proportionately
reduced.
The obligation to do this is with Congress, and not the judiciary. In
the case of Giles v. Board of Registration (189 U. S., 488), decided by
the Supreme Court of the United States on April 27, 1903, the court, in
the Alabama election-law case, said:
``Apart from damages to the individual, relief from a great political
wrong, if done as alleged, by
Sec. 645
the people of a State, and the State itself, must be given by them or
by the legislative and political departments of the Government of the
United States.''
In my opinion there is nothing in these cases that can be submitted
to the courts. The obligation is upon the legislative department of the
Federal Government to ascertain whether the right to vote has been
denied any of the citizens of Texas, and if so, its representation in
Congress should be reduced proportionately.
In accordance with their conclusions, the majority of the committee
recommended this resolution, in which Mr. Bannon also concurred:
Resolved, That A. J. Houston was not elected a Member of the Fifty-
ninth Congress from the Second Congressional district of Texas and is
not entitled to a seat therein.
The resolution was agreed to without debate or division.
645. The election case of the California Members in the Forty-ninth
Congress.
After examination of precedents the Committee on Elections and the
House followed the interpretation of a State law given by the highest
court of the State.
On May 11, 1886,\1\ Mr. Robert Lowry, of Indiana, presented the
report of the Committee on Elections in the California case. The report
states the case thus:
It is claimed on behalf of contestants that the votes cast at the
Congressional elections of the 4th day of November, 1884, in the State
of California, should have been compared and estimated under the
apportionment law existing in that State prior to the 13th day of
March, 1883, and not in accordance with the act of the legislature of
that State of the day named, entitled ``An act to divide the State of
California into congressional districts.'' Under the prior law the
State was divided into four districts, with two Representatives at
large. Under the latter act the State was apportioned into six
Congressional districts, each one of which was entitled to one
Representative, and none at large. In order to sustain the contention
of the contestants, it is obligatory upon them to show that the act of
March 13, 1883, is invalid, and this they attempt to do.
The claim is that this act was not passed in accordance with section
15, Article IV, of the State constitution, which requires that every
bill should be read on three several days in each house.
Passing by a number of immaterial points upon which testimony was
taken in this contest, we proceed at once to the substantial ground
urged against the sitting Members. That, we think, has been fully and
definitely settled in a decision of the supreme court of the State of
California in a case reported in volume 8, West Coast Reporter, page
29, entitled ``People, ex rel. Leverson, v. Thompson, secretary of
state.''
After quoting in full the opinion, the report proceeds:
It will be seen that the foregoing case was an application by these
contestants to the supreme court of the State of California for a writ
of mandate to compel the secretary of state to compare and certify to
the votes cast at the last elections, in accordance with the law in
force in California prior to the passage of the act the validity of
which is brought in question by this contest.
It is not denied in this case that the bill itself was read in
accordance with the constitutional provisions, but it is said that
there was an amendment thereto which should also have been read ``upon
three several days.''
The Miller case was presented for decision in the State of Ohio,
entitled ``Miller v. The State'' (3 Ohio St. Rep., 479). The point was
very satisfactorily disposed of by Judge Thurman, who was then upon the
supreme bench of that State. He admits in his decision that there might
be some plausibility in the argument that an amendment radically
changing the subject-matter should be read three times, the same as a
bill, but holds that to bring an amendment within that objection it
should be of such a character as to change the subject or proposition
of the bill wholly, and where the amend
-----------------------------------------------------------------------
\1\ First session Forty-ninth Congress, House Report No. 2338; Mobly,
p. 481.
Sec. 646
ment does not effect any such radical change in the purpose, aim, and
scope of the bill, that it does not come within the constitutional
requirement that it should be read three times.
The decision cited of the full bench of the supreme court of the
State of California seems to be fully definitive of the principles
involved here. Such being the case, your committee, in conformity with
an almost invariable rule, follow the construction of the statutes
given by the court of last resort of the State from which the cases
come.
Such is the rule of the Supreme Court of the United States, and we do
not perceive why one so well based upon reason and common sense should
be departed from in this case.
In Leavenworth v. Barnes (94 U. S. Rep., 70), the validity of a
statute of the State of Kansas being assailed as having been improperly
passed, the Supreme Court said:
``The recent decision upon this identical statute by the supreme
court of Kamm, in a suit against this county, relieves us from all
embarrassment upon this question. It gives effect and construction to
one of its own statutes, and, according to well-settled rules, will be
followed by this court.''
In support of this rule of construction a number of well-considered
cases are cited in the opinion.
The same rule has been followed by the House of Representatives in
election contests. In the matter of the election of a Representative
from the State of Tennessee, in the Forty-second Congress, the
Elections Committee said:
``It is a well-established and most salutary rule that when the
proper authorities of the State government have given a construction to
their constitution and statutes, that construction will be followed by
the Federal authorities. This rule is absolutely necessary to the
harmonious workings of our complex government, State and national, and
your committee are not disposed to be the first to depart from it. In
the case of Birch v. Van Horn (2 Bartlett, 205) the House refused to go
into an inquiry as to the validity of the new constitution of Missouri,
upon the ground that it had been recognized as valid by all the
departments of the State government.''
While the conclusion arrived at by Justices Ross and Myrick is not
authority to the full extent to which the opinion of the full bench is
thus recognized, we present their views as embodying what we regard to
be a reasonable construction of that clause of the constitution of
California bearing upon the question raised. It is one, we think, which
we would not hesitate to adopt did the controversy turn upon the
question of constitutional construction alone.
This disposes of everything requiring notice in these cases.
The contestants only received a vote running from six to fifty each,
and upon no ground that would be recognized under any rule of law, or
commend itself to any principle of justice, can either one of the
contestees be unseated. Even if they could, it is quite clear that no
one of the contestants is entitled to a seat.
Your committee therefore recommend the adoption of the following
resolutions:
Resolved, That Barclay Henley, James A. Loutitt, Joseph McKenna, W.
W. Morrow, Charles N. Felton, and H. H. Markham were duly elected as
Representatives from the State of California to the Forty-ninth
Congress, and are legally entitled to their seats.
Resolved, That Alexander M. McKay, Montague R. Leverson, and
Archibald McGrew were not elected as such Representatives, and are not
entitled to seats in this body.
The resolutions were agreed to in the House without debate or
division.\1\
646. The Massachusetts election case of Turner v. Baylies in the
Eleventh Congress.
The House held that ballots wherein the word ``junior'' was omitted
from the candidate's name should be counted on proof that they were
intended for the candidate.
The House unseated a person returned as elected at a second election
on ascertaining that another person had actually been chosen at the
first election.
Instance of a House election contest instituted by petition.
-----------------------------------------------------------------------
\1\ Journal, p. 1571.
Sec. 647
One of the parties to an election case having failed to attend the
taking of testimony after notification, the House considered the
testimony, although ex parte.
On May 24, 1809,\1\ a petition was presented on behalf of Charles
Turner, jr., who contested the right of William Baylies to a seat in
the House of Representatives from one of the Massachusetts districts.
The facts in this case, as found by the Committee of Elections, were as
follows:
At the election held in conformity with State law on the first Monday
of November, 1808, the votes were returned to the governor as follows:
For ``Charles Turner, junior, esq.,'' 1,443; for ``Charles Turner,
esq.,'' 430; a total of 1,873 votes for the two names. These 1,873
votes constituted the required majority for an election, but the
governor, finding that a majority of votes had not been cast for any
one name, and exercising a prerogative lawful in cases where no
candidate received a majority of votes, ordered another election for
January 19, 1809. At this second election William Baylies received a
majority of the votes and, receiving the certificate of the governor,
took his seat in the House.
The committee received testimony showing that the votes cast for
``Charles Turner, junior, esq.'' and for ``Charles Turner, esq.,'' must
have been meant for one and the same person. The sitting Member had
been cited to appear during the taking of this testimony and had
neglected to do so. Therefore the Committee of Elections admitted the
testimony, although in fact taken ex parte.
The conclusions of the committee were embodied in the following
resolutions:
Resolved, That the election held in Plymouth district in November
last was legal and proper.
Resolved, That William Baylies is not entitled to a seat in this
House.
Resolved, That Charles Turner, jr., is entitled to a seat in this
House.
On June 23, the House agreed to the first resolution, yeas 58, nays
13; to the second, yeas 60, nays 40; to the third, yeas 62, nays 41.
Thereupon Mr. Turner appeared and qualified.
647. The New York election case of Williams, jr., v. Bowers in the
Thirteenth Congress.
The House held that ballots wherein the word ``junior'' was omitted
from the candidate's name should be counted on proof that they were
intended for the candidate.
On July 2, 1813,\2\ the Committee on Elections reported in the
contested election case of Williams, jr., v. Bowers, from New York,
that the return of the votes for the district was as follows:
Votes.
John M. Bowers 4,287
Isaac Williams, jr 4,129
Isaac Williams 434
John M. Bowey 1
Several other persons, in all 17
It appeared to the committee that there were residing within the
district three persons by the name of Isaac Williams, one of whom was
distinguished by the
-----------------------------------------------------------------------
\1\ First session Eleventh Congress, Contested Elections in Congress,
from 1789 to 1834, p. 234.
\2\ First session Thirteenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 263.
Sec. 648
addition of ``junior.'' It was also admitted by the sitting Member that
Isaac Williams, jr., was the only candidate opposed to him, within his
knowledge. The committee also found that in each of four towns of the
district nearly 100 votes were given for Isaac Williams, and not one
for Isaac Williams, jr. It therefore appeared to the committee that the
votes given for Isaac Williams were intended for Isaac Williams, jr.,
but considered that further evidence was necessary.
So the subject was postponed until the next session, and on December
16, 1813, the committee again reported, finding that in the towns of
Exeter, Milford, and Westford, 322 votes were, through the mistakes of
the local inspectors of election, returned for Isaac Williams. From the
testimony of these inspectors it appeared that these 322 votes were
given to, and ought to have been returned for, Isaac Williams, jr.
Adding these votes to the poll of Isaac Williams, jr., gave him a
majority of 164 votes over Mr. Bowers. Therefore the committee
submitted the following resolutions, which were unanimously agreed to
by the House:
Resolved, That John M. Bowers is not entitled to a seat in this
House.
Resolved, That Isaac Williams, jr., is entitled to a seat in this
House.
648. The New York election case of Willoughby v. Smith in the
Fourteenth Congress.
Election officers having omitted the word ``junior'' in returning the
vote of a candidate in two towns, the House seated the candidate on
finding that the error had affected the result decisively.
On December 11, 1815,\1\ the Committee on Elections, to whom had been
referred the case of Willoughby, jr., v. Smith, of New York, reported
that it appeared from the testimony of certain local inspectors of
elections, that in the towns of German Flats and Litchfield, 299 votes
were, through the mistake of the said inspectors, returned for Westel
Willoughby, although in fact they were given for Westel Willoughby,
jr., and that in the said towns no votes were given for Westal
Willoughby without having the, word ``junior'' added thereto. The 299
votes above mentioned being added to the poll of Westel Willoughby,
jr., gave him a majority of 255 votes over William S. Smith. The
committee therefore recommended resolutions that Mr. Smith was not
entitled to the seat, and that Westel Willoughby, jr., was entitled to
it.
On December 15 the House agreed to the recommendation of the
committee, and Mr. Willoughby took his seat.
649. The New York election cases of Guyon, jr., v. Sage and Hugunin
v. Ten Eyck in the Sixteenth and Nineteenth Congresses.
The omission of the word ``junior'' in the return of a candidate's
vote was corrected by the House on being shown by testimony.
Instance wherein the House decided an election contest against a
returned Member who had not appeared to claim the seat.
On January 12, 1820,\2\ the Committee on Elections reported in the
contested
-----------------------------------------------------------------------
\1\ First session Fourteenth Congress, Contested Elections in
Congress from 1789 to 1834, p. 265.
\2\ First session Sixteenth Congress, Contested Elections in Congress
from 1789 to 1834, p. 348.
Sec. 650
case of Guyon, jr., v. Sage, of New York, which had been instituted by
a petition. The committee found that votes were cast as follows:
Votes.
For Ebenezer Sage 2,085
For James Guyon, jr 1,701
For James Guyon 396
The evidence showed that the 396 votes were actually cast for ``James
Guyon, jr,'' but that the word ``junior'' was omitted through the
mistake of certain returning officers.
The committee therefore submitted the following resolutions, which
were agreed to by the House on January 14, 1820:
Resolved, That Ebenezer Sage is not entitled to a seat in this House.
Resolved, That James Guyon, jr., is entitled to a seat in this House.
The committee also found that Mr. Sage had not appeared to claim his
seat, and no evidence had been adduced of his intention to make such
claim.
On December 15, 1825,\1\ in the case of Hugunin, jr., v. Ten Eyck, of
New York, the House unseated Mr. Ten Eyck and seated Mr. Hugunin,
because a correction of the returns showed that the omission of the
word ``junior'' in certain returns had deprived the latter of enough
votes actually cast for him to secure his election. The question was
not discussed, since the principle had been discussed and passed on
several times.
650. The New York election cases of Wright, jr., v. Fisher and Root
v. Adams in the Twenty-first and Fourteenth Congresses.
The omission of the word ``junior'' in the return of a candidate's
vote was corrected by the House on being shown by testimony.
Instance wherein a person declined to take a seat assigned him after
a contest as to final right.
On January 19, 1830,\2\ the Committee on Elections reported in the
case of Wright, jr., v. Fisher, of New York. It appeared that at the
election in November, 1828, there were given to ``Silas Wright,
junior,'' 42 votes in the town of Edwards, which were returned for
``Silas Wright;'' and there were given for ``Silas Wright, junior,'' in
two other towns a total of 130 votes which, by mistake of election
officers, were not returned for him.
The addition of these votes to the poll showed the election of Silas
Wright, jr.; and in accordance with this showing the committee reported
a resolution unseating Mr. Fisher and declaring Mr. Wright entitled to
the seat.
On February 5 the House agreed to the resolution.
Mr. Wright, not having appeared, on February 13 \3\ it was
Resolved, That the Speaker of this House inform the executive of New
York that the seat in the present Congress, for the Twentieth
Congressional district, occupied by George Fisher, has been, by a
resolution of the House, awarded to Silas Wright, jr.
-----------------------------------------------------------------------
\1\ First session Nineteenth Congress, Contested Elections in
Congress from 1789 to 1834, p. 501.
\2\ First session Twenty-first Congress, Contested Elections in
Congress from 1789 to 1834, p. 518.
\3\ Journal, p. 293.
Sec. 651
Mr. Wright did not appear, and on March 9 a letter from him declining
the seat was presented to the House.\1\
On December 26, 1815,\2\ the Committee on Elections reported in the
contested election case of Root v. Adams, of New York, that John Adams
was not entitled to a seat in the House, and that Erastus Root was
entitled to the seat.
In this case it appeared from the sworn statement of a clerk in one
of the counties that his deputy had returned the votes of certain towns
as cast for ``Erastus Rott'' instead of ``Erastus Root,'' for whom they
were in fact cast. The stiting Member admitted the truth of this
statement, and as the number of votes so incorrectly returned was
sufficient to change the result of the election in favor of the sitting
Member, the House, concurred in the report of the committee. Mr. Root
therefore qualified and took his seat.
651. The South Carolina election case of McKissick v. Wallace in the
Forty-second Congress.
Contestant's evidence being too indefinite to establish his case, the
House confirmed the title of sitting Member although irregularities in
the election were evident.
On May 7, 1872,\3\ Mr. G. W. Hazelton, of Wisconsin, from the
Committee on Elections, submitted the report of the committee in the
case of McKissick v. Wallace, of South Carolina. The sitting Member had
been returned by a certified majority of 3,304. The contestant claimed
that the election was irregular.
The committee found the evidence voluminous, but not sufficiently
definite and tangible to warrant the committee in assailing the
apparent or prima facie right of the sitting Member to the seat. The
report says:
Indeed, there is no evidence of the actual vote certified in the
several counties of the district on which the certificate of election
was predicated.
There is some reason for the belief that irregularities may have
occurred in some localities, but the evidence of the contestant falls
short of determining to what extent these irregularities were carried,
or affording any means of ascertaining their effect upon the actual
vote of the district.
The law under which the election was held seems to be well calculated
to cover, if not to encourage, fraud, inasmuch as it neither requires
registration of the voters nor a public canvass of the votes at the
close of the polls, but allows the managers of each precinct, or one of
them, to retain possession of the boxes containing the ballots
uncounted for three days, at the end of which time they are required to
deliver them over to the commissioners of election for their county,
together with the poll list, and these latter officers may retain the
boxes for ten days longer before making the canvass.
But the committee, having no power over this law, must content itself
with simply calling attention to it.
Therefore the committee recommended a resolution confirming the title
of sitting Member to the seat.
On May 9 \4\ this report was agreed to by the House without division.
652. The House in the Fifty-eighth Congress declined to investigate
the election of a Delegate to the Fifty-ninth Congress.--On February
-----------------------------------------------------------------------
\1\ Journal, p. 394.
\2\ First session Fourteenth Congress, Contested Elections in
Congress from 1789 to 1834, p. 271.
\3\ Second session Forty-second Congress, House Report No. 66; Smith,
p. 98.
\4\ Journal, pp. 831, 832; Globe, p. 3243, 3244.
Sec. 653
22, 1905,\1\ Mr. Martin E. Olmsted, of Pennsylvania, submitted, from
the Committee on Elections No. 2, the following report:
The Committee on Elections No. 2, to which was referred the following
memorial, viz:
``Memorial\2\ of the Independent Home Rule party of Hawaii praying for
the appointment of a commission to investigate the recent election in
that Territory.
``resolutions.
``Whereas the official printed ballots used in every election
precinct throughout the Territory of Hawaii on the Tuesday (November 8)
after the first Monday in November, 1904, were ballots attached to a
numbered stub, and in the right comer of said ballot, which corner is
perforated for purposes of detachment therefrom, is contained the
number of said ballot, corresponding with the number printed upon the
stub aforesaid; and * * *
``Be it resolved, That Congress is hereby memorialized and requested
to send as soon as practicable a commission to this Territory to
inquire and investigate into the illegal ballots as aforesaid, or order
the governor of this Territory to send to Congress one or two ballot
boxes containing the aforesaid numbered and perforated ballots or
sample thereof; and * * * ''
respectfully begs leave to report that it has also received from
citizens of Hawaii a numerously signed ``Palapala Hoopii,'' asking
``that the territorial election held on Tuesday, November 8,1904, be
declared by the Congress of the United States null and void,'' for
reasons therein set forth, which are substantially those contained in
the foregoing memorial. No person desiring such action has appeared
before your committee or submitted any proof of the allegations
contained in the memorial. But the Hon. A. L. C. Atkinson, the
secretary of the Territory of Hawaii, the official referred to in the
said memorial, has appeared, submitted a sample showing the form of
ballot used, and explained its use.
After describing the ballot, the committee continues:
Upon this point it would, perhaps, be improper for your committee or
for this House to express an opinion, in view of the fact that it will
in any event have to be passed upon by the Fifty-ninth Congress in a
contest which has been filed against the person returned as elected to
be a Delegate therein. So far as the eight senators and thirty
representatives elected to the territorial legislature are concerned,
no reason has been shown us why the legality of their elections may
not, or might not have been, determined upon proper proceedings
instituted before the designated local legal tribunals.
We therefore submit that there is no occasion for the present
Congress to send a commission to Hawaii or to take any action in the
premises, and recommend the adoption of the following resolution:
Resolved, That it is inexpedient for this House, at this time, to
take any action in relation to the election of senators and
representatives to the territorial legislature in Hawaii, or the
election of Delegate to the Fifty-ninth Congress.
After short debate this resolution was agreed to without division.\3\
653. The Senate election case of Lane and McCarty v. Fitch and
Bright, from Indiana, in the Thirty-fifth Congress.
In 1868 the Senate decided that a decision once made in an election
case should not be revised or reversed.
-----------------------------------------------------------------------
\1\ Third session Fifty-eighth Congress, Record, p. 3075.
\2\This memorial had been referred in the regular course.
\3\ In 1890 the Senate considered the case of Fred T. Dubois, of
Idaho. (Election Cases, Senate Document No. 11, special session Fifty-
eighth Congress, p. 763.) December 30, 1890, the credentials of Mr.
Dubois, as Senator from Idaho for six years beginning March 4, 1891,
were laid before the Senate and referred to the Committee on Privileges
and Elections. January 5 that committee reported that it was not
customary to consider any questions arising on the credentials of a
Senator until the term for which he claimed to be elected, and
recommended that the credentials be placed on file. The credentials
were filed accordingly.
Sec. 653
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES.
THE HOUSE THE JUDGE OF CONTESTED ELECTIONS.
On June 12, 1858,\1\ the Senate had declared Messrs. Graham N. Fitch
and Jesse D. Bright, of Indiana, entitled to their seats, after
proceedings on a memorial objecting to the validity of their election.
At the next session of Congress Messrs. Henry S. Lane and William M.
McCarty appeared, bearing credentials as Senators-elect from Indiana.
The question was referred to the Committee on the Judiciary, which on
February 3, 1859, reported.\2\ This report, after reviewing the history
of the case, said:
It appears by the memorial that the legislature of Indiana, at its
recent session in December last, assumed the power of revising the
final decision thus made by the Senate of the United States, under its
unquestioned and undoubted constitutional authority to ``be the judge
of the qualifications of its own members.'' Under this assumption, it
also appears by the journals of the senate and house of representatives
of the State of Indiana, the legislature of Indiana, treating the seats
of the Senators from that State as vacant, proceeded, subsequently, by
a concurrent vote of the senate and house of representatives of the
State, to elect the Hon. Henry S. Lane as a Senator of the United
States for the State of Indiana, to serve as such until the 4th of
March, 1863, and the Hon. William Monroe McCarty as a Senator for the
same State, to serve as such until the 4th of March, A. D. 1861. Under
this action of the legislature of Indiana those gentlemen now claim
their seats in the Senate of the United States.
It may be conceded that the election would have been valid and the
claimants entitled to their seats had the legislature of Indiana
possessed the authority to revise the decision of the Senate of the
United States that Messrs. Fitch and Bright had been duly elected
Senators from Indiana, the former until the 4th of March, 1861, and the
latter until the 4th of March, 1863.
In the opinion of the committee, however, no such authority existed
in the legislature of Indiana. There was no vacancy in the
representation of that State in the Senate, and the decision of the
Senate, made on the 12th of June, 1858, established finally and (in the
absence of a motion to reconsider) irreversibly the right of the Hon.
Graham N. Fitch as a Senator of the State of Indiana until the 4th of
March, 1861, and the right of the Hon. Jesse D. Bright as a Senator
from the same State until the 4th of March, A. D. 1863.
The decision was made by an authority having exclusive jurisdiction
of the subject; was judicial in its nature; and, being made on a
contest in which all the facts and questions of law involving the
validity of the election of Messrs. Fitch and Bright, and their
respective rights to their seats, were as fully known and presented to
the Senate as they are now in the memorial of the legislature of
Indiana, the judgment of the Senate then rendered is final, and
precludes further inquiry into the subject to which it relates.
There being, by the decision of the Senate, no vacancy from the State
of Indiana in the Senate of the United States, the election held by the
legislature of that State at its recent session is, in the opinion of
the committee, a nullity, and merely void, and confers no rights upon
the persons it assumed to elect as Senators of the United States. The
committee ask to be discharged from the further consideration of the
memorial of the legislature of Indiana.
The minority combated these views, as follows:
The power of the Senate to judge of the election and qualification of
its own members is unlimited and abiding. It is not exhausted in any
particular case by once adjudicating the same, as the power of
reexamination and the correction of error or mistake, incident to all
judicial tribunals and proceedings, remains with the Senate in this
respect, as well to do justice to itself as to the States represented,
or to the persons claiming or holding seats. Such an abiding power must
exist to purge the body from intruders, otherwise anyone might retain
his seat who had once wrongly procured a decision of the Senate in his
favor by fraud and falsehood, or even by papers forged or fabricated.
In what cases and at whose application a rehearing will at all times
be granted is not now necessary to inquire; but when new parties, with
apparently legal claim, apply, and especially when a sovereign State,
by its legislature, makes respectful application to be represented by
persons in the Senate legally elected, and insists that the sitting
members from that State were never legally chosen, we consider
-----------------------------------------------------------------------
\1\ First session Thirty-fifth Congress, Globe, p. 2981.
\2\ 1 Bartlett, p. 632; Globe, p. 772.
Sec. 654
that the subject should be fully reexamined, and that neither the
State, the legislature, nor the persons now claiming seats can legally
or justly be estopped, or even prejudiced, by any former proceedings of
the Senate to which they were not parties.
* * * * * * *
In the case of the State of Mississippi, in the House of
Representatives in the Twenty-fifth Congress, the power to reexamine a
decision made on an election of Members was fully considered and
decided. Gholson and Claiborne were, at a special election held on the
proclamation of the governor, chosen Representatives from that State to
a special session of Congress called by the President. At that session
exception was taken to them, but after some objection they were
admitted to their seats. Their case and papers were referred to the
Committee of Elections, who made report, and thereupon, on full and
elaborate discussion, it was resolved that they were duly elected
Members of the Twenty-fifth Congress and entitled to their seats. This
was in September. In November following an election was holden in said
State, and Prentiss and Ward were elected Members of the Twenty-fifth
Congress, who, in December following, presented their credentials and
claimed their seats. It was then insisted in that case, as it now is in
this, that the decision so before made was conclusive of the right of
Claiborne and Gholson to their seats as Members of the Twenty-fifth
Congress, and the whole matter was res adjudicata. But on full
examination and after full discussion, the former resolution declaring
said Claiborne and Gholson as duly elected Members of the Twenty-fifth
Congress was rescinded.
On February 11 the question was debated, especially with reference to
the right of review, and the Senate by a vote of yeas 31, nays 20 the
subject laid on the table. So Messrs. Fitch and Bright retained their
seats.
654. The House, overruling its Speaker, held that a negative decision
on a resolution declaring a person not entitled to a seat was not
equivalent to an affirmation of the title.--On March 19, 1822,\1\ the
House was considering the contested election case of Reed v. Causden,
from the State of Maryland, the Committee on Elections having reported
the resolutions, which, as amended by the Committee of the Whole, came
before the House as follows:
Resolved, That Jeremiah Causden is not entitled to a seat in this
House.
Resolved, That Philip Reed is not entitled to a seat in this House.
The first resolution was agreed to by the House; and on the question
of agreeing to the second resolution there were, yeas 74, nays 75.
The Speaker \2\ voted in the affirmative, thereby making an equal
division, and, as provided by the rule, announced that the question was
lost. The resolution being lost, he decided, as a necessary consequence
thereof, that the converse of the proposition contained in the said
resolution was affirmed, to wit, that Philip Reed is entitled to a seat
in this House.
Mr. Henry Baldwin, of Pennsylvania, appealed, and the decision of the
Speaker was overruled, after debate.
Mr. Romulus M. Sanders, of North Carolina, then moved this
resolution, which was agreed to--yeas 82, nays 77:
Resolved, That Philip Reed is entitled to a seat in this House as one
of the Representatives from the State of Maryland.
Mr. Reed thereupon appeared and qualified.
655. In voting on election cases the negativing of one proposition is
not regarded as affirming its converse.--On January 29, 1881,\3\
majority and
-----------------------------------------------------------------------
\1\ First session Seventeenth Congress, Journal, pp. 368-370; Annals,
pp. 1321-1323.
\2\ Philip P. Barbour, of Virginia, Speaker.
\3\ Third session Forty-sixth Congress, Record, pp. 1050, 1051.
Sec. 656
minority resolutions were before the House in a contested election
case, the minority resolutions being the converse of the majority in
their declarations. After the minority proposition, which had been
offered as an amendment in the nature of a substitute, had been
rejected, the point of order was made that this action decided the
majority proposition, and that a further vote was unnecessary. The
Speaker pro tempore (Mr. Adlai E. Stevenson, of Illinois) held that, as
the substitute had been voted on, the question was then on the majority
resolution.
656. A resolution declaring a Delegate (already seated on prima facie
showing) entitled to his seat being laid on the table, his status was
not thereby affected.--On July 23, 1868,\1\ the House considered these
resolutions:
Resolved, That William McGrorty is not entitled to a seat in this
House as a Delegate from the Territory of Utah.
Resolved, That William H. Hooper is entitled to a seat in this House
as a Delegate from the Territory of Utah.
The contestant, Mr. McGrorty, charged the sitting Member, Mr. Hooper,
with having, as a Mormon, taken oaths inconsistent with his duties as a
Delegate, with suspicious connection with the perpetrators of the
Mountain Meadow massacre, etc. The official canvass showed, however,
that Mr. Hooper received 15,068 votes and Mr. McGrorty 105. The
contestant having been heard, the first resolution was agreed to and
the second resolution was laid on the table.
As Mr. Hooper had already taken the oath and exercised his functions
as a Delegate, the laying on the table of the resolution declaring him
entitled to the seat did not affect his status. He continued to be a
Member through this Congress.\2\
657. In 1792, 1804, and 1841 the House permitted parties in election
cases to be heard by attorneys at the bar of the House.--On March 10,
1792, at the time of the trial of the contested election case of
Jackson v. Wayne, leave was granted to the sitting Member ``to be heard
by his counsel at the bar of the House.'' \3\
658. On March 1, 1804,\4\ in the contested election case of Moore v.
Lewis, it was--
Resolved, That the memorialist and the sitting Member shall, if they
desire it, be heard by counsel before the bar of the House.
On March 3 Mr. Lewis was heard by his counsel.
659. On September 4, 1841,\5\ the House agreed to a resolution that
David Levy, claiming a seat as Delegate from Florida, be heard in
person or by counsel at the bar of the House.
660. In 1836 the House, after full discussion, declined to permit the
contestant in an election case to be heard by counsel at the bar of the
House.--On March 2, 1836,\6\ when the House was about to proceed to the
con-
-----------------------------------------------------------------------
\1\ Second session Fortieth Congress, Globe, pp. 4383-4389.
\2\ Third session Fortieth Congress, Journal, p. 181.
\3\ First session Second Congress, Contested Elections in Congress,
from 1789 to 1834, p. 49.
\4\ First session Eighth Congress, Journal, pp. 609, 615.
\5\ First session Twenty-seventh Congress, Journal, p. 460.
\6\ First session Twenty-fourth Congress, Journal, pp. 445, 468, 499,
500; Debates, pp. 2664, 2759.
Sec. 661
sideration of the contested election case of Newland v. Graham, from
North Carolina, a motion was made that the petitioner, David Newland,
have leave to appear at the bar and address the House on the subject of
his petition.
Mr. Jesse A. Bynum, of North Carolina, moved as an amendment to this
motion ``that he have leave to address the House by himself or counsel
on the main question.''
Over this motion a debate arose as to the propriety of allowing the
petitioner to be heard by counsel. In support of his motion Mr. Bynum
cited precedents in 1789 and 1804 in which the petitioner was heard by
counsel.
On March 5 Mr. Bynum's amendment was disagreed to by the House, yeas
67, nays 112.
On March 12 a motion to reconsider this vote was decided in the
negative, yeas 91, nays 96. Then the original motion that the
petitioner have leave to appear at the bar and address the House was
agreed to.\1\
661. The House, in 1856, declined to permit a contestant who could
not speak the English language to be heard by counsel at the bar of the
House.--On May 8, 1856,\2\ Mr. William R. Smith, of Alabama, from the
Committee on Elections, submitted the following resolutions:
Resolved, That Jose M. Gallegos is not entitled to a seat in this
body as a delegate from the Territory of New Mexico.
Resolved, That Miguel A. Otero is entitled to a seat in this body as
such Delegate.
Resolved, That the parties to this contest be allowed to appear
before this House, either in person or by counsel, to defend their
respective claims.
The House proceeded first to the consideration of the last of the
series of resolutions, which was reported principally for the reason
that Mr. Gallegos could not speak the English language.
The subject was considered at length, Mr. Alexander H. Stephens, of
Georgia, going into a careful examination of the precedents, and
favoring the resolution as a result of that examination. But on May 9
the resolution was disagreed to.\3\
662. The contestant in an election case is sometimes permitted to
address the House in his own behalf.--On January 30, 1896,\4\ Mr. John
J. Jenkins, of Wisconsin, from the Committee on Elections No. 3, made a
report in the case of Rosenthal v. Crowley, and gave notice that he
would call up the case on the next day. Thereupon he asked unanimous
consent of the House that the contestant be allowed one hour to debate
when the case should come up.
The request was granted, there being no objection.
-----------------------------------------------------------------------
\1\ On March 11 Mr. Bynum made an elaborate argument in favor of
allowing the petitioner to be heard by counsel, citing numerous
precedents, both American and English. (Debates, pp. 2737-2746.) This
was replied to on March 12, also with a learned discussion of
precedents. (Globe, p. 230.)
On July 16, 1840, in the New Jersey case, a proposition was made that
the contestants be heard on the floor of the House by themselves or
counsel; but was ruled out, the previous question having been ordered.
(First session Twenty-sixth Congress, Journal, p. 1295.)
\2\ First session Thirty-fourth Congress, Journal, pp. 943, 947, 952;
Globe, pp. 1162, 1179, 1186.
\3\ Subsequently, on May 26 (Globe, p. 1302; Journal, p. 1045), Mr.
Stephens presented from Mr. Gallegos 9, speech written in English and
giving his case, which was ordered to be printed. Mr. Stephens
presented this as privileged, but no issue was raised.
\4\ First session Fifty-fourth Congress, Record, pp. 1120, 1168.
Sec. 663
663. The House in early years gave the privileges of the floor to
contestants during discussion of the reports on their cases, with leave
to speak on the merits.--On January 5, 1820,\1\ Mr. John W. Taylor, of
New York, chairman of the Committee on Elections, offered the following
order to give privilege to a contestant for a seat:
Ordered, That Rollin C. Mallary have leave to occupy a seat on the
floor of this House, pending the discussion of the report of the
Committee on Elections upon his petition; and that he have leave to
speak on the merits of the petition, and the report thereon.
The order was agreed to.
664. On January 6, 1824,\2\ it was--
Resolved, That Parmelio Adams, who contests the election of Isaac
Wilson, returned a Member of this House, be permitted to appear within
the bar, and be heard in support of his petition, during the discussion
of the report of the Committee on Elections on said petition.
665. In 1830,\3\ during consideration of the Tennessee contested
election case of Arnold v. Lea, the contestant had as usual been
admitted to the floor and had addressed the Committee of the Whole
(wherein the case was considered), and had concluded. Thereupon the
sitting Member was recognized and proceeded to address the committee.
When he had concluded, the contestant requested recognition. A question
being made as to his right to be heard, the chairman \4\ declared that
he did not have the right, as it was not proper to have any collision
between the petitioner and the sitting Member.
666. The House, in 1841, indicated its opinion that the returned
Member might speak of right in his own election case, but that the
contestant needed the consent of the House.--On January 5, 1841,\5\ the
House, after some debate, voted that Charles J. Ingersoll, a contestant
for the seat occupied by Charles Naylor, of Pennsylvania, have leave as
well as Mr. Naylor, to address the House. This resolution created
debate. The propriety of allowing Mr. Ingersoll to speak seems to have
been admitted, but it was objected that the form of the resolution
seemed to imply that the sitting Member also needed the permission of
the House, whereas, it was contended, he had as much right to the floor
as any other Member. Therefore the resolution, before being adopted,
was amended by striking out the reference to Mr. Naylor.\6\
667. Form of resolution used in 1848 to give to a contestant the
right to be heard in person at the bar of the House.--On March 29,
1848,\7\ the House agreed to the following resolution:
Resolved, That James Monroe, who contests the seat of David S.
Jackson, have leave to be heard in person at the bar of this House.
-----------------------------------------------------------------------
\1\ First session Sixteenth Congress, Journal, p. 107 (Gales & Seaton
ed.); Annals, p. 860.
\2\ First session Eighteenth Congress, Journal, p. 119; Annals, p.
940.
\3\ First session Twenty-first Congress, Journal, p. 137; Contested
Elections (Clarke), p. 643.
\4\ Mr. George McDuffie, of South Carolina.
\5\ Second session Twenty-sixth Congress, Journal, p. 145; Globe, pp.
83, 84.
\6\ A question arose as to whether, in view of the fact that the
proceedings had arisen from a petition of people of the district, Mr.
Ingersoll appeared as a claimant or as attorney for the people. It was
shown that Mr. Ingersoll also had claimed the seat by petition, and the
House, by a vote of 139 to 42, confirmed to him the privilege of being
heard.
\7\ First session Thirtieth Congress, Journal, p. 626; Globe, p. 549.
Sec. 668
668. A contestant having the privilege of the floor with leave to
speak ``to the merits of said contest and the report thereon,'' was
permitted to speak on a preliminary question.--On January 27, 1858,\1\
the contestant in the contested election case of Vallandigham v.
Campbell, of Ohio, was, by resolution, allowed to occupy a seat on the
floor ``pending the discussion of the report'' of the committee, and
was given leave to speak ``to the merits of said contest and the report
thereon.''
On February 3 there arose a question as to whether the contestant
could be on the floor and participate in the discussion of a resolution
relating to extending the time for taking testimony in the case. By
laying on the table a motion to reconsider the House permitted the
contestant to be present and participate in the decision of the
preliminary question. Precedents were cited to show that this was in
accordance with the practice.
669. The practice of giving general permission to claimants for seats
to enjoy the privileges of the floor was embodied in a rule in 1880.
The House in one case included the right to speak to the merits with
a general permission to contestants to enjoy the privileges of the
floor.
On July 5, 1861,\2\ the House agreed to the following resolution:
Resolved, That the several gentlemen who shall have contests for
seats pending before this House have the privilege of the floor during
such contest, with the right to speak with regard to their respective
cases.
Before this the above permission had been granted in each case as it
came up.
670. On July 5, 1867,\3\ the House gave leave to contestants for
seats to have the privileges of the floor until their cases should be
disposed of.
671. In the Thirty-ninth Congress (1865-67) \4\ contestants for seats
were, in each case from a loyal State, admitted by special resolution
to seats on the floor, generally with the right to speak on the case.
These resolutions were passed generally early in the session, giving
the contestant the privilege during the time the case was being
considered in committee, as well as during the time of actual
consideration by the House.
But a general resolution giving the privilege of the floor to
claimants from States lately in rebellion was negative yeas--40, nays,
111--on December 11, 1865.\5\
On December 12, 1865,\6\ a resolution reciting the loyalty of the
persons claiming seats from Tennessee and granting them the privileges
of the floor was laid on the table--yeas 90, nays 63--and then a
resolution inviting these persons as individuals to seats on the floor,
but not referring to them as claimants, was agreed to, yeas 133, nays
35.
672. In 1880,\7\ when the rules of the House were revised, a
provision was inserted in Rule XXXIV allowing the privileges of the
floor to ``contestants in election cases during the pendency of their
cases in the House.''
-----------------------------------------------------------------------
\1\ First session Thirty-fifth Congress, Globe, pp. 452, 558.
\2\ First session Thirty-seventh Congress, Journal, p. 20; Globe, p.
12.
\3\ First session Fortieth Congress, Journal, p. 165.
\4\ First session Thirty-ninth Congress, Journal, pp. 17, 41, etc.;
Globe, pp. 9, 20, etc.
\5\ Journal, p. 47; Globe, pp. 21, 22.
\6\ Journal, pp. 53-55; Globe, p. 33.
\7\ Second session Forty-sixth Congress, Journal, p. 1552.
Sec. 673
673. A resolution for the employment of a handwriting expert in an
election case was admitted as privileged.--On January 13, 1904,\1\ Mr.
Marlin E. Olmsted, of Pennsylvania, from the Committee on Elections No.
3, offered, as involving a question of privilege, the following:
Resolved, That Committee on Elections No. 2 shall be, and is hereby,
authorized to employ an expert in handwriting to pass upon such matters
or questions as shall be submitted to him by said committee or any
subcommittee thereof in the contested election case of Bonynge v.
Shafroth, from the First Congressional district of Colorado, the
expense of employing such expert to be paid out of the contingent fund
of the House.
The resolution was entertained as a question of privilege,\2\ and was
agreed to by the House.
674. A proposition relating to the pay of a contestant for a seat is
not a question of privilege.--On May 17, 1864,\3\ the House had
disposed of the contested election cases of Joseph Segar and L. H.
Chandler, of Virginia, when Mr. Henry L. Dawes, of Massachusetts, from
the Committee on Elections, submitted, as a question of privilege, a
resolution providing for payments out of the contingent fund of the
House to the two claimants of sums equal to mileage and pay for the
session up to the time of the decision of the cases.
Mr. William S. Holman, of Indiana, made the point of order that the
resolution was not privileged.
The Speaker \4\ said:
The resolution would certainly not be privileged if delayed until
after the subject had passed away from the House, but the Chair thinks
that, offered in connection with the subject, it has been usually
regarded as privileged.
675. On June 17, 1870,\5\ after the disposition of the contested
election case of Whittlesey v. McKenzie, from Virginia, a resolution
was presented for compensating the contestant.
Objection being made, the Speaker \6\ said:
The unqualified privilege of the Committee on Elections in regard to
a report as to the right to a seat does not carry with it as privileged
a resolution as to compensation. * * * Such a resolution is not
privileged.
676. Reference to the laws relating to payment of contestants and
contestees in an election case.
The amount for which a party to an election case may be reimbursed
for expenses is limited by law.
A party to an election case must file a detailed account and vouchers
in support of his claim for expenses.
Allowances for witness fees in an election case must be in strict
conformity to section 128, Revised Statutes.
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\1\ Second session Fifty-eighth Congress, Journal, p. 142; Record, p.
721.
\2\ Joseph G. Cannon, of Illinois, Speaker.
\3\ First session Thirty-eighth Congress, Globe, p. 2323.
\4\ Schuyler Colfax, of Indiana, Speaker.
\5\ Second session Forty-first Congress, Globe, p. 4519.
\6\ James G. Blaine, of Maine, Speaker.
Sec. 677
The statutes \1\ provide:
That hereafter no contestee or contestant for a seat in the House of
Representatives shall be paid exceeding two thousand dollars for
expenses in election contests; and before any sum whatever shall be
paid to a contestant or contestee for expenses of election contests he
shall file with the clerk of the Committee on Elections a full and
detailed account of his expenses, accompanied by vouchers and receipts
for each item, which account and vouchers shall be sworn to by the
party presenting the same, and no charges for witness fees shall be
allowed in said accounts unless made in strict conformity to section
one hundred and twenty-eight, Revised Statutes of the United States.
677. Payments for the expenses of either party to an election case,
may not be made by the House out of its contingent fund or otherwise.
The statutes provide:
No payment shall be made by the House of Representatives, out of its
contingent fund \2\ or otherwise to either party to a contested
election case for expenses incurred in prosecuting or defending the
same.\3\
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\1\ 20 Stat. L., p. 400.
\2\ On February 19, 1861, a resolution was agreed to providing for
the payment of the expenses of the contested elections out of the
contingent fund of the House. (Second session Thirty-sixth Congress,
Journal, p. 350; Globe, p. 1030.)
\3\ Revised Statutes, sec. 130.