[Cannon's Precedents, Volume 6]
[Chapter 172 - General Election Cases, 1926 To 1930]
[From the U.S. Government Publishing Office, www.gpo.gov]
GENERAL ELECTION CASES, 1926 TO 1930.
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1. Cases in the Sixty-ninth Congress. Sections 166-173.
2. Cases in the Seventieth Congress. Sections 174-180.
3. Cases in the Seventy-first Congress. Sections 181-185.
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166. The Pennsylvania election case of Bailey v. Walters, in the
Sixty-ninth Congress.
In order to secure a recount before an elections committee, it is
necessary to produce tangible evidence to show likelihood of such
recount changing the result of the original returns.
Returns made by duly appointed officials are presumed to be correct
until impeached by proof of such irregularity and fraud as to raise the
presumption of incompetency or dishonesty, and the House will not
constitute itself a mere board of recount.
Illegal ballots are subtracted from the vote of the candidate for
whom cast and when the candidate for whom cast can not be ascertained
are subtracted from the vote of all candidates in accordance with the
pro rata share of the total vote obtained by each candidate in the
precinct in which cast.
Under a decision of the Supreme Court an American-born woman married
to a foreigner prior to the passage of the Cable Act and continuing
residence in the United States does not lose citizenship or right to
vote by such marriage.
Form of resolution authorizing production of ballots for recount by
committee.
A State law providing for custody of ballots was held to be directory
and not mandatory.
A question relating to votes cast by unregistered voters was not
finally passed upon.
On June 10, 1926,\1\ Mr. Bird J. Vincent, of Michigan, from the
Committee on Elections No. 2, submitted the report of the committee in
the Pennsylvania case of Warren Worth Bailey v. Anderson H. Walters.
At the general election held November 4, 1924, the contestee had a
majority of 63 votes over the contestant and received the certificate
of election.
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\1\ First session Sixty-ninth Congress, House Report No. 1450.
Sec. 166
However, the law of the State of Pennsylvania approved May 19, 1923,
provided:
And in case the returns of any election district shall be missing
when the returns are presented, or in case of complaint of a qualified
elector, under oath, charging palpable fraud or mistake, and
particularly specifying the alleged fraud or mistake, or where fraud or
mistake is apparent on the return, the court shall examine the return.
In compliance with this law, electors in 12 precincts presented
petitions charging fraud or mistake and praying for an examination of
the ballots of certain precincts, and the case being heard before the
three judges as provided by law, the court rendered this opinion:
The judges who heard this case are equally divided in opinion on the
question as to whether or not the votes in the ballot box of St.
Michael district could legally be counted by the computing board. When
these ballots are counted Bailey is entitled to the certificate of
election, but when not, Walters is entitled to receive it. The court
being divided on the question of the legal right to count the votes
considered, it follows that the order appealed from must stand and the
certificate issued to Anderson H. Walters. It is so ordered.
A petition for a rehearing was denied and the contestant applied to
the Supreme Court for a writ of certiorari which was also denied.
Thereupon the contestant filed a notice of contest in the House.
The first question discussed by the committee report is the
application of the contestant for a general recount of all the votes of
all the precincts of the congressional district. The majority of the
committee find that:
No testimony nor proof casting suspicion upon any ballot boxes in the
district, nor \4\ the returns from them, was produced except as to the
21 ballot boxes which have been recounted.
and agree that:
As to the petition for a general recount, it seems to be in
accordance with a long line of precedents in Congress that in order to
secure a recount, before an elections committee, that tangible evidence
must first be produced tending to show that such recount will probably
change the result of the original returns from such ballot boxes, and
that in the absence of such tangible evidence or testimony recounts
will be refused.
Accordingly, the committee reaffirm the statement made in the case of
Ansorge v. Weller to the effect that:
It has been said again and again by the House, by the court, by every
tribunal that has this duty of passing upon a contested election that
the returns which are made by the inspectors, regularly appointed by
the laws of the State where the election is held, are presumed to be
correct until they are impeached by proof of irregularity and fraud,
and that the House will not erect itself, nor will it erect its
committees as mere boards of recount. It is conceived that when the
statutes of the State have set up these bipartisan boards and made due
and proper provision for their selection, that it is, as a matter of
public policy, wise and right that their conclusions shall be accepted
by the parties to the election, by the public, and by any board charged
with the duty of passing on the result, until such time as such
irregularities and frauds are proved as to raise a fair presumption
that their duties were not honestly performed.
The committee therefore conclude that no cause had been shown why a
general recount should be ordered outside of the 21 precincts about
which the testimony centers.
The committee having decided to recount the ballots in these
precincts, Mr. Bird J. Vincent, of Michigan, by direction of the
committee, offered the following resolution in the House:
Sec. 166
Resolved, That Logan M. Keller, sheriff of Cambria County, State of
Pennsylvania or his deputy, be, and he is hereby, ordered to appear by
himself or his deputy, before Elections Committee No. 2, of the House
of Representatives forthwith, then and there to testify before said
committee in the contested-election ease of Warren Worth Bailey,
contestant, against Anderson H. Walters, contestee, now pending before
said committee for investigation and report and that said sheriff or
his deputy bring with him all the ballots cast in the sixteenth ward of
the city of Johnstown, Pa., and in Westmont Borough No. 2, of Cambria
County, Pa., at the general election held in the twentieth
congressional district of the State of Pennsylvania on November 4,
1924. That said ballots be brought to be examined and counted by and
under the authority of said Committee on Elections in said case, and to
that end that the proper subpoena be issued to the Sergeant at Arms of
this House, commanding him to summon said sheriff, or his deputy, to
appear with such ballots as a witness in said case, and that the
expense of said witness, and all other expenses under this resolution,
shall be paid out of the contingent fund of the House; and that the
aforesaid expense be paid on the requisition of the chairman of said
committee after the auditing and allowance thereof by said Committee on
Elections No. 2.
The resolution was accorded immediate consideration as privileged and
was agreed to, and the ballots having been recounted in the sixteenth
ward of Johnston City, were found to sustain the contention of the
contestant. Accordingly 16 additional votes were allotted to the
contestant.
The contestant also claimed 40 additional votes in the St. Michael
district, which, in alleged violation of the Pennsylvania law, had been
left at the polling place instead of with ``the nearest justice of the
peace,'' as required by statute. The committee found, however, that the
law was directory and not mandatory and as the ballots were found
intact in the box allotted them to the contestant.
The dispute as to votes cast at Westmont Borough hinged on the
allegation that ballots had been marked by a peculiar cross different
from other crosses on the ballots and the contention that they had been
placed on numerous ballots by the same person. On examination of the
ballots the committee sustained the contention and recounted the
ballots with a resulting gain of 76 votes for the contestee.
As to the allegation that unnaturalized voters had participated in
the election, the committee found that women had voted who had married
aliens prior to the passage of the Cable Act, September 22, 1922, and
who had not taken out naturalization papers to regain their citizenship
and therefore rejected such votes.
In cases where such voters when questioned testified as to the
candidate for whom they had voted the vote was subtracted from the
total vote of that candidate. Where such voters refused to testify for
whom they had voted, the subtraction was made by reducing the vote of
each candidate in the precinct where the illegal votes were shown to be
cast in accordance with the pro rata share of the total vote obtained
by each candidate in that particular precinct.
In this connection the contestant, through his counsel, claimed that
an American-born woman who had married a foreigner prior to the Cable
Act, but who continued to reside in the United States, did not lose her
citizenship thereby. However, as the Supreme Court has passed upon this
question, the committee in accordance with that decision rejected such
alien votes.
The last question in the contest related to ballots cast by
unregistered voters. Proof was submitted that 586 illegal votes had
been cast which should not have been counted because vitiated by the
law of the State of Pennsylvania denying the right
Sec. 167
of franchise to unregistered voters. It was conceded that the law was
mandatory and that under the rule fixed by the precedents in Congress
such ballots could not be counted if proof was established. But as
there was a difference of opinion in the committee as to whether the
methods of proof were proper and sufficient, and as the contestee
already had sufficient votes for election without such additional votes
as might accrue from this source, the committee refrained from
expressing an opinion on the question.
Summing up the change of votes resulting from the determination of
the various questions involved in the case, the committee found that
the contestee had received a majority of 51 votes and recommended the
adoption of the following resolutions:
Resolved, That Warren Worth Bailey was not elected a Member of the
House of Representatives in the Sixty-ninth Congress from the twentieth
congressional district of the State of Pennsylvania and is not entitled
to a seat herein.
Resolved, That Anderson H. Walters was duly elected a Member of the
House of Representatives in the Sixty-ninth Congress from the twentieth
congressional district of the State of Pennsylvania and is entitled to
retain his seat herein.
The case was debated at length in the House on June 15,\1\ when the
resolutions recommended by the committee were agreed to without
division.
167. The Florida election case of Brown v. Green, in the Sixty-ninth
Congress.
The contestant having withdrawn from the contest, the committee
reported a resolution confirming the right of the incumbent to his
seat.
On February 24, 1926,\2\ Mr. Charles L. Gifford, of Massachusetts,
from the Committee on Elections No. 3, submitted the unanimous report
of the committee in the case of H.O. Brown v. Robert A. Green.
The committee reported that the contestant had withdrawn from the
contest by a letter duly subscribed and sworn to before a notary public
and submitted the following resolution:
Resolved, That Hon. Robert A. Green was duly elected as
Representative from the second congressional district of Florida to the
Sixty-ninth Congress and is entitled to his seat.
The report was considered on March 12 \3\ and the resolution was
agreed to without debate or division.
168. The Georgia election case of Clark v. Edwards, in the Sixty-
ninth Congress.
The contestant failing to file a brief within the time required by
the rules of the House, the committee construed the laches as an
abandonment of the contest.
The committee having reached the conclusion that the contestant was
not acting in good faith in bringing the contest announced that it
would decline to authorize payment of any expense incurred by the
contestant therein.
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\1\ Record, p. 11307.
\2\ First session Sixty-ninth Congress, House Report No. 359.
\3\ Record, p. 5471.
Sec. 168
On June 10, 1926,\1\ Mr. Bird J. Vincent, of Michigan, from the
Committee on Elections No. 2, presented a report in the case of Don H.
Clark v. Charles G. Edwards, of Georgia.
According to the official returns the contestee, as the Democratic
candidate, had received 14,694 votes; Herbert G. Aarons, as the
Republic candidate, had received 627 votes; and the contestant,
appearing on the ballots in the various counties under such headings as
``Independent Party'' or ``Independent Republican Party,'' had received
448 votes.
The contestant alleges that he was the duly nominated Republican
candidate but that he was wrongfully denied that designation on the
ballots.
The committee find, however:
That Herbert G. Aarons was the regularly nominated Republican
candidate and that the contestant was not. It seemes to the committee
that in securing the placing of his name upon the ballots under the
party designations used contestant was accorded at least all that he
was entitled to.
Further charges by the contestant are set forth in the report, as
follows:
The contestant charges further that the entire election was illegal,
false, and fraudulent, because of the existence of a political
oligarchy and general conspiracy throughout the district.
As to this the committee finds no testimony worthy of credence to
sustain such charge.
The contestant further charges the public officials of the
congressional district with skillfully, flagrantly, and criminally
violating the provisions of the Neil Act, which is a late election law
of Georgia.
The committee finds this charge not to be sustained by the evidence.
The contestant in bombastic and reckless language makes other charges
of crime, fraud, deceit, and conspiracy in the district, none of which
charges the committee finds to have been supported by evidence.
The failure of the contestant to file a brief, as required by the
rules of procedure, is thus reported and pawed on:
In an endeavor to support his contest the contestant took testimony
throughout the district, which testimony has, with some exceptions,
been returned to the House of Representatives and delivered to this
committee in the form of a record. Although notified by the Clerk of
the House of Representatives in due time as to the requirement of the
rules of the House and the law governing contests, as to when he should
file his brief, the contestant has not filed any brief up to this time,
and has taken no action in the further prosecution of his case since
the settlement of the record. As the time has long gone by in which he
is permitted to file a brief, the committee assumes that he has
abandoned his contest. Whether this be true or not, however, the
committee finds that there is absolutely no merit in his contest.
So impressed are the committee with the lack of merit in the
contentions of the contestant and his delay in the prosecution of his
claims that they conclude:
The Committee on Elections No. 2 in the present case not only finds
that the present contest is not grounded in any merit, but also finds
that the contestant is not acting with bona fides in bringing it; and
it desires to announce to the House of Representatives that, unless
otherwise directed by the House, it will decline to authorize the
payment by the Government to the contestant in this case of any expense
incurred by him in bringing the present contest.
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\1\ First session Sixty-ninth Congress, House Report No. 1449.
Sec. 169
The committee therefore recommend resolutions reciting that the
contestant was not elected and that the contestee was duly elected,
which were adopted by the House on June 15,\1\ without debate or
division.
169. The New York election case of Sirovich v. Perlman, in the Sixty-
ninth Congress.
It being admitted that the contestee had a majority of the votes
cast, the committee declined to pass on disputed ballots submitted for
their consideration.
The contestant having failed to exercise due diligence in securing
evidence within the time allotted, the committee overruled his
application that the case be reopened to permit him to adduce further
testimony.
On April 12, 1926 \2\ Mr. Don B. Colton, of Utah, from the Committee
on Elections No. 1, submitted the report of that committee in the case
of William I. Sirovich v. Nathan D. Perlman.
According to the official returns the sitting Member had received a
plurality of 126 votes. The contestant, however, served notice of
contest on numerous grounds, which are summarized by the committee as
follows:
That the State board of canvassers of New York and the board of
elections of the city of New York, in their canvass and return of the
votes cast at said election, had erred in declaring Nathan D. Perlman,
the contestee herein, elected, and in issuing to him a certificate of
election based upon said canvass and return.
That if contestee did receive an alleged majority of votes it was
because of the frauds practiced by said contestee on the electorate on
the day of election and prior thereto, and as a result of a conspiracy
on the part of eontestee to commit a fraud, which was carried out, upon
the electorate on the day of election.
That the contestee entered into a conspiracy with one George Rosken
and one Abe Lewis to falsify the tally sheets in the twentieth and in
the twenty-third election districts.
The contestee having answered with a general denial, the committee
subpoenaed the disputed ballots and counted them. At the close of the
count so small a number remained in dispute that the committee
concluded:
The committee was not called upon to determine whether these disputed
ballots were bona fide votes. It was admitted at the close of the count
that contestee had a majority of the votes cast. They were used merely
as exhibits in the argument to show fraud and conspiracy.
During the proceedings, the counsel for the contestant made
application for the reopening of the case to take further testimony.
The application was denied for the reason that:
The committee found that the contestant had not used due diligence in
securing the proper evidence at the time of making his case in chief
and therefore did not feel justified in asking the House for authority
to reopen the case.
The majority therefore sum up the case:
Your committee finds after a careful analysis of the testimony and
argument, and in conformity with a long line of congressional
precedents, that the proof presented before the committee by the
contestant did not sustain the charges made against the contestee by
the contestant.
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\1\ Record, p. 11312.
\2\ First session Sixty-ninth Congress, House Report No. 858.
Sec. 170
The minority members of the committee, while refraining from
submitting minority views, declined to vote to approve the conclusions
reached by the majority, for the reason as explained by Mr. C. B.
Hudspeth, of Texas, during the debate on the report in the House on
April 15.\1\
In this contest the contestant did not ask that he be given the seat
in the fourteenth congressional district, but his prayer was that the
seat now held by Mr. Perlman be declared vacant and void and another
election held. I want to state to you frankly, Mr. Speaker, the case
was not properly prepared before it was presented to the committee of
Congress. I think every man on that committee will agree to that, and
counsel for the contestant asked for additional time to produce
additional testimony, but under the rules governing contested-election
cases and the law it could not be granted.
At the conclusion of the debate, however, the resolutions reported by
the majority, declaring that the contestant had not been elected and
confirming the title of the contestee to his seat, were adopted without
division.
170. The Senate election case of Bursum v. Bratton, from New Mexico,
In the Sixty-ninth Congress.
A general recount of ballots is unwarranted without preliminary
evidence tending to cast doubt on the accuracy of the official returns.
Counsel for the contestant having conceded that a recount of the
ballots was all that was relied on and that if a recount did not
overcome the contestee's plurality the contest would be dismissed, the
committee held it was not warranted on the pleadings in recounting the
ballots but permitted an amendment of pleadings to justify recount.
An instance wherein the committee, overruling a demurrer conceded to
be well taken, elected to decide the ease on the pleadings, aff1davits,
exhibits, and statements of counsel and parties.
In 1926,\2\ the Senate investigated the case of Holm O. Bursum. v.
Sam G. Bratton, of New Mexico.
In the election held November 4, 1924, the official returns gave the
contestant 54,558 votes and the contestee 57,335, a plurality of 2,797
votes for the contestee.
The petition in contest contained general averments as follows:
That various employees of the Government and the State, as well as
others, voted without possessing the requisite residential
qualifications; that residents of the State who were attending schools
and colleges therein voted at the places they were attending school
instead of their home precincts; that aliens, minors, and ex-convicts
were permitted to vote and certain Indians denied the right; that in
one county the county clerk failed to comply strictly with the law in
the preparation of the official ballots; and that martial law was
improperly declared in one county. A general allegation was made that
votes cast for contestant, as well as the candidate on the Progressive
ticket, were counted for contestee. Other averments of incidental
importance were made.
However, in a hearing before the subcommittee, and later before the
committee en banc, the attorney for the contestant made the statement:
That a recount of the ballots was all that was relied upon; that the
pleading tendered other issues, but that he did not rely upon them, and
that if a recount of the ballots did not totally or substantially
overcome the contestee's plurality the protest would be dismissed.
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\1\ Record, p. 7533.
\2\ First session Sixty-ninth Congress, Senate Report No. 724.
Sec. 170
On the strength of this statement the subcommittee concluded that:
The pleading filed by the contestant failed to state grounds
justifying the committee in taking steps to impound, open, and recount
the ballots cast throughout the State, or for further proceedings, but
that the matter should be submitted to the full committee for its
consideration.
The committee adopted the views of the subcommittee but held that the
contestant could, if he so desired, amend his pleading in order to set
forth a bill of particulars showing fraud in the count or any pertinent
facts expected to be proved sufficient to warrant a recount.
The contestant availed himself of this permission and seven
affidavits were presented, together with certain documents, much of
which was foreign to the subject and related to matters which could not
be determined by a recount of the ballots. Two of such affidavits
tended to show fraud committed in three precincts in Curry County. When
the substance of the two is combined they charge that in precinct 13,
10 votes were cast for the contestant and counted for the contestee;
that in precinct 1, 122 Progressive ballots were scratched for the
contestant but counted for the contestee; that in said precinct 85
Democratic ballots were scratched for the contestant but counted for
the contestee; that the tallies in said precinct were kept on separate
paper from the official poll books; that there is confusion and doubt
with reference to the variance between the tallies and the certificate,
under one view such variance reaches the maximum of 225, under another
view it is 75; that in precinct 9 of said county 50 ballots cast for
the contestant were counted for the contestee and that 45 were declared
to be mutilated when they should have been counted for the contestant.
One of these affiants undertook to state facts occurring in the count
at three separate precincts. The other does not purport to know any
facts except as to one precinct. This is the only attack made upon the
entire State, consisting of 31 counties and approximately 715
precincts.
To these allegations the contestee interposed a demurrer on the
ground that, granting they were true, they could not change the result
of the election but could only increase the size of his plurality:
Notwithstanding the conceded merit of this contention, the report
recites that:
Upon the entire record thus presented the committee concluded to
overrule the demurrer and to decide the contest upon the pleadings,
affidavits, documents, photographs, admissions, and statements of
counsel and the parties.
The committee then conclude:
That under the contention of either party, the contestee has a
plurality of the vote east for the office in question. According to the
contestant's contention, and giving him credit for everything claimed,
such plurality is 1,220; that according to the contestee's contention
the facts pleaded by contestant show that such plurality is
approximately 2,300.
That all other matters set forth in said contest are of such
character that a recount of the ballots would have no bearing
whatsoever. Contestant having waived and abandoned an such issues,
there remains no other question to be determined.
That the prevailing rule of law throughout the country with regard to
a general recount of ballots without some preliminary evidence tending
to cast doubt or suspicion upon the correctness of the official returns
may be seen from the following, which are merely a part of the many
authorities upon the subject.
Sec. 171
The report incorporates numerous citations from authorities in
support of its conclusions and closes with the finding:
That Sam G. Bratton received a plurality of the votes cast in the
election held in the State of New Mexico on November 4, 1924, for the
office of United States Senator from said State for a term of six years
beginning March 4, A. D. 1925, and is entitled to hold said office and
exercise the functions thereof.
On April 30, 1926,\1\ the report was considered by the Senate and the
recommendation of the committee was approved without debate.
171. The Senate election ewe of Johnson v. Schall, of Minnesota, in
the Sixty-ninth Congress.
The Senate is judge of the election and qualification of its Members
and judgments of State courts while persuasive are not binding.
On June 7, 1926 \2\ Mr. Charles S. Deneen, of Illinois, submitted the
report of the Committee on Privileges and Elections ``in the matter of
the contest and protest in connection with the election of United
States Senator from the State of Minnesota, 1924.''
The committee reported that at the general election held November 4,
1924, Thomas D. Schall received 388,594 votes, Magnus Johnson received
380,646 votes, and three other candidates received a nominal number of
votes.
Subsequently Mr. Johnson filed with the Senate a petition contesting
the election of Mr. Schall and incorporating allegations which are
summarized by the committee as follows:
(1) That certain violators of the liquor laws were induced to
contribute money for the expenses of contestee's campaign by certain
persons who were either employed by or were constant visitors at the
``Schall political headquarters ``at the West Hotel in Minneapolis.
(2) That sums in excess of the amount permitted to candidates for the
United States Senate were expended by contestee in violation of the
statutes of the United States and of the State of Minnesota.
(3) That false statements about contestant were made by contestee
during the campaign for election in violation of the Corrupt Practices
Act of Minnesota. That contestee caused the publication of 450,000
copies of a paper called the Minnesota Harpoon, and caused said Harpoon
to be unlawfully mailed as second-class matter in the United States
post office at Minneapolis.
(4) That said contestee violated the franking law privilege in
sending through the mails ``millions of copies of speeches and
extensions of remarks.''
(5) That contestee promised offices and positions for influence and
support in his campaign.
(6) That contestee conspired to expend a sum of money in excess of
$50,000 in procuring the election of said contestee.
The committee having subpoenaed witnesses and taken testimony,
reported its findings on these charges in this form:
In the opinion of the committee:
(1) The evidence does not show that any violators of the liquor laws
were induced to contribute money or did contribute any money for the
expenses of contestee's campaign for election or that the contestee
received or expended any such funds.
(2) There was no testimony offered to show that contestee expended
any money during his campaign for election as United States Senator, or
in the primary which preceded it. There was
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\1\ Record, p. 8482.
\2\ First session Sixty-ninth Congress, Senate Report No. 1021.
Sec. 172
no testimony to show that contestee received any money during the
campaign preceding the election of November 4, 1924, or at the primary
immediately before it.
(4) No testimony was offered in support of the allegation that the
franking privilege had been abused.
(5) The testimony does not show that any promises were made of
offices or positions in return for influence or support by contestee in
his campaign for nomination or election.
(6) The testimony does not support the allegation that contestee
conspired to expend a sum of money in excess of $50,000 or any sum in
securing the election of contestee.
As to the third item in the contestant's arraignment charging
violation of the corrupt practices act of the State of Minnesota, the
committee tabulate the provisions of that law:
(3) Your committee states that said statutes,
(a) Prohibit certain acts and made them grounds for contest or
annulment of election.
(b) Give to the defeated candidate or to 25 voters the right to bring
an action to contest or annul the election.
(c) Require that such action be brought within 30 days after
election.
(d) Require such action to be brought in the district court of the
county where contestee resides.
(e) Require such action shall be tried according to law.
(f) ``If a candidate for United States Senator be adjudicated guilty,
the court, after entering such adjudication, shall forwith transmit to
the presiding officer of the Senate a certificate setting forth such
adjudication of guilty.''
The committee then find that no contest contemplated by the statute
has been filed in the district court of Minnesota where the contestee
resides, and further holds that:
The Senate is a judge of the election and qualification of its
members and a judgment of a court under the provisions of the Minnesota
law referred to would not be binding upon the Senate, but it would have
great weight. It should not be expected that the Senate act as a
substitute for a district court of that State.
With reference to the allegations relating to the publication of a
paper claimed to have been mailed in violation of the postal laws the
committee say:
Regarding the publication of the Minnesota Harpoon, the testimony
does not support the allegation that contestee published the paper or
knew the contents of contestant's Exhibit No. 2; or mailed or caused to
be mailed the paper of which contestant's Exhibit No. is a copy, or
knew that it was mailed.
Furthermore, the testimony submitted does not create any issue upon
the alleged false statements made in speeches or published in the
Minnesota Harpoon.
In conclusion the committee unanimously recommend:
That the contest in this case be dismissed and that the protest
against the seating of Thomas D. Schall be overruled.
The Senate considered the report on June 16, 1926,\1\ and after
debate, including a discussion of the case by the contestee, declared
Mr. Schall to be ``a duly elected Senator of the United States from the
State of Minnesota.''
172. The Senate election case of Steck v. Brookhart, of Iowa, in the
Sixty-ninth Congress.
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\1\ Record, p. 11351.
Sec. 172
Instance wherein a stipulation was entered into under which all votes
cast at an election were brought to Washington and recounted.
On a recount by the committee the question of rejecting ballots is
properly raised when they are received in Washington and before
recounting or at least when tabulated, and the motion comes too late
after the record has been made and argument heard.
Denial of charges of irregularity or fraud places the burden of proof
of such charges on the proponents.
A State law requiring the transportation and preservation of ballots
under seal was held to rebut the unsustained presumption that ballots
received with broken seals had been tampered with.
In determining issues in a contested election all cases of doubt were
resolved in favor of the incumbent, for the reason that he had received
the certificate of election.
In 1926 \1\ the Senate investigated the case of Daniel F. Steck v.
Smith W. Brookhart, of Iowa.
The State canvassing board found that Mr. Brookhart had received
450,099 votes, a plurality of the votes cast, and a certificate of
election was issued to him and he was seated by the Senate.
Three notices of contest or protest were filed--one by Luther A.
Bruewer, who received 862 votes in the election and who took no further
steps in the contest; one by the Republican State central committee of
Iowa, who alleged that the incumbent had obtained votes under a
fraudulent representation that he was a Republican, and that he had not
been elected; and one by Daniel F. Steck, who filed formal allegations
that ballots were cast for him and not counted, that ballots were cast
for him and counted for the incumbent, and that illegal votes were
counted for the incumbent.
The incumbent answered denying specifically all material charges set
out in the various petitions and, the issues being joined, a
stipulation for a recount of all the votes cast in the election was
entered into by counsel for contestant and incumbent, respectively, as
follows:
stipulation.
In the Senate of the United States. In the matter of the contest of
Daniel F. Steck v. Smith W. Brookhart.
Come now the parties to the above-entitled contest, namely Daniel F.
Steck, contestant, and Smith W. Brookhart, contestee, and stipulate and
agree as follows:
(1) That the above-entitled contest may be immediately referred to
the Committee on Privileges and Elections of the Senate of the United
States.
(2) That the said contestant and contestee are and will be throughout
the course of the Said contest represented by their respective counsel,
viz, J. M. Parsons of Des Moines, Iowa, on behalf of the contestant,
Daniel F. Steck; and J. G. Mitchell of Des Moines, Iowa, on behalf of
the contestee, Smith W. Brookhart.
(3) That certain voters at the general election held on the 4th day
of November, A. D. 1924, at which the said contestant and contestee
were candidates for the office of Senator of the United States for the
State of Iowa in certain counties, hereinafter more specifically
enumerated, recorded their votes in mechanical devices known as voting
machines.
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\1\ First session Sixty-ninth Congress, Senate Report No. 498.
Sec. 172
(4) That voting machines were employed for the said purpose in 18
counties of the said State, viz, Benton, Boone, Calhoun, Clay,
Crawford, Des Moines, Dickinson, Dubuque, Franklin, Hardin, Iowa,
Jackson, Johnson, Mahasaka, Marshall, Muscatine, Pocahontas, Polk,
Scott, Story, and Webster:
(5) That the said voting machines and each and all of them have been
kept locked in order that the evidence of the votes cast by means of
said machines shall be preserved for the purposes of the said contest,
and that the Senate of the United States, through its Committee upon
Privileges and Elections, may inform itself as to the verity or
otherwise of the returns made by the several election officials, and
the regularity or otherwise of the election in so far as it may be
determined by the canvass of the votes cast by means of said voting
machines.
(6) That it is necessary, in order that the said voting machines may
be employed at elections to be held shortly in said counties, and in
order further that certain voting machines which are not the property
of certain counties, but have been used under a rental contract, may be
released, that the add machines be examined at the earliest possible
date by a committee appointed by and under the supervision of the
Committee on Privileges and Elections of the United States Senate, and
to this end it agreed, subject to the approval of the Committee on
Privileges and Elections, that three persons shall examine the said
voting machines forthwith and report their findings to the said
committee, so as to show the votes cast in each precinct, and identify
the machine used in each precinct, and the vote shown by each machine.
(7) That a city and school election will be held in the city of
Dubuque, county of Dubuque, in said State, on the 7th day of March, A.
D. 1925, and that for the purpose of making examination and reporting
the votes cast and such other findings by the parties appointed for the
said purpose in the said county of Dubuque, and in view of the fact
that the Senate is now in session and will be unable to delegate one of
the members of the Committee on Privileges and Elections to supervise
the examination of the voting machines in the said county of Dubuque,
the following persons, representing, respectively, the contestant and
contestee, shall, subject to the approval of the said Committee on
Privileges and Elections, constitute the counting board authorized to
make the said examination in the said Dubuque County--for the
contestant, Maurice P. Cahill, of Cedar Rapids; and for the contestee,
Louis H. Cook, of the city of Des Moines, Polk County, Iowa.
(8) That the said Maurice P. Cahill and Louis H. Cook may appoint a
third member of the said counting board, but if unable to agree upon
such member on or before the 28th day of February, A. D. 1925, shall
immediately proceed to the examination of the said machines and the
counting of the votes therein and make separate report thereof to the
Committee on Privileges and Elections of the United States Senate.
(9) That immediately upon the adjournment of the present session of
the Senate of the United States, there may be appointed by the
Committee on Privileges and Elections one of the members of the said
committee, or such other persons as said committee may select, who
shall supervise the examination of the said machines and the counting
of the votes cast by means thereof, and who shall be present at the
opening of each machine for the said examination and counting:
Provided, however, That the presence of said member of the said
committee shall not be necessary at the examination of and counting of
the ballots cast by means of machines in Dubuque County.
(10) That the report of each and all the committees or boards
appointed for the purpose of examining the said machines, and the
counting of the votes cast thereby, shall include any other matters or
conditions which may in the opinion of the board or either of its
members affect the regularity of the votes cast on the machines
themselves.
(11) That there shall be subpoenaed to Washington all absentee
ballots, cast by means of said voting machines and rejected ballots,
and all registration books, poll books, and other books and documents
of every character or kind whatsoever used in connection with the
voting machines at the said election.
(12) That the counting board shall, with the county auditor, in each
of said counties voting by machines identify each and all of the
packages of ballots and the books and other documents so subpoenaed and
transmitted, which said identification shall be evidence thereof.
(13) That there shall be subpoenaed and transmitted to the Sergeant
at Arms of the Senate of the United States all paper ballots from each
and every precinct of the State of Iowa where such
Sec. 172
ballots were employed in their original packages as are now in the
possession of the several county auditors, together with all
registration books, poll books, tally sheets, and other books and
documents of every kind and character whatsoever used or employed in
connection with the general election held on the 4th day of November,
A.D. 1924, aforesaid.
(14) That the packages of ballots and each and all of them
transmitted to the Sergeant at Arms shall be identified by the auditor
of each and every county and may be further identified by two
assistants, one of whom shall represent the contestant and the other
the contestee, and the said registration books, poll books, tally
sheets, and other books and documents so transmitted shall be similarly
identified.
Daniel F. Steck,
Contestant.
J. M. Parsons,
Counsel for Contestant.
Smith W. Brookhart,
Contestee.
J. G. Mitchell,
Counsel for Contestee.
Subsequently this was supplemented by the following second
stipulations.
stipulation for subpeona of ballots
In the Senate of the United States. In the matter of the contest of
Daniel F. Steck against the seating of Smith W. Brookhart in the United
States Senate as Senator from Iowa
To the Senate of the United States:
It is hereby stipulated and agreed by and between the parties to the
above-entitled contest as follows:
(1) That the Sergeant at Arms of the Senate of the United States
shall forthwith address a subpoena to each and all the county auditors
of each and every county of the State of Iowa, a list of which said
counties with the county seats thereof, the said county seats being the
official residences of the said county auditors, is hereto attached,
marked ``Exhibit A,'' and made a part hereof.
(2) That the said subpoena shall provide:
(a) That the said county auditors and each of them are commanded to
transmit unto the said Sergeant at Arms all of the following books,
papers, and documents in their custody used in their respective
counties and in each and every precinct thereof in connection with and
for the purposes of the general election held in the said State of Iowa
on the 4th day of November, A. D. 1924, viz: All registration books,
poll books, official canvass books, tally-sheet books, and other books
of every kind or character; all paper ballots and their envelopes or
other containers; all absentee ballots, together with affidavits made
by persons casting their votes by means of such absentee ballots; and
all other papers and documents of every kind and character and their
envelopes or other containers:
(b) That the said county auditors, so long as the said books, papers,
and documents remain in their possession, shall take full charge and
custody thereof, and restrain and prevent any and all persons from in
any manner interfering or tampering therewith, except as is hereinafter
specifically provided:
(c) That immediately prior to the transmission of the said books,
papers, and documents the envelopes and containers thereof shall be
examined by the county auditor in the presence of a representative of
each of the contesting parties, who shall be designated for that duty
by the respective counsel for the said parties, and the said examiners
and county auditor shall sign their names on each and every envelope or
container, which shall be sealed in such manner that they may not be
tampered with or opened except by authority of the Committee on
Privileges and Elections of the United States Senate without evidence
of such tampering or opening appearing thereon. Should there appear any
evidence of opening or tampering with any original package prior to the
said examination by said county auditor and examiners, notation of the
character thereof shall be made upon the envelope or container by the
said county auditor and examiners, or either of them.
(d) That the said books, papers, and documents shall, immediately
upon their certification as provided in the immediately preceding
paragraph (c), be securely packed in substantial cases, the said cases
and each of them to be certified in manner and form, so far as
applicable, as provided
Sec. 172
for individual envelopes and containers, and thereupon forwarded by
express to the said Sergeant at Arms at the city of Washington, D. C.
Dated this 30th day of March, A. D. 1925.
Dan F. Steck,
By J. M. Parsons,
of Counsel
Smith W.
Brookhart
By J. G. Mitchell,
of Counsel.
Under these stipulations and subsequent agreements all ballots cast
in the election were brought to Washington and recounted.
One of the questions rising out of the recount was the charge by the
incumbent that ballots reaching Washington with broken seals were
subject to the presumption of having been tampered with.
On this contention the committee find as to fact:
It is true that some reached Washington in packages the seals to
which had been loosened or broken, but evidently and conclusively this
occurred in transporting in the mails. It is contended, however, by
counsel for incumbent, that even this condition raised a presumption
that they might have been tampered with, or could have been tampered
with, and, therefore, that they could not be received.
The committee take the position, however, that:
Inasmuch as the law of Iowa required the election officials to seal
and transmit all the ballots, poll books, and tally sheets to the
county auditors, and required that the county auditors should keep and
preserve them after they were received, it seemed to your committee
that this presumption would rebut and overcome the presumption
suggested by counsel for incumbent.
In this connection the question as to the burden of proof is thus
treated by the committee:
The committee calls attention to the denial in the response of
incumbent to all acts of irregularity and fraud set up in the petition
of contestant. Therefore, any facts relied upon by incumbent would have
to be affirmatively shown.
No evidence was offered to support the suggestion of the incumbent.
No acts of fraud were alleged or proved, or were sought to be proved.
No witness was introduced to establish such an issue, nor were any
pretended to be available.
In fact, counsel for incumbent admitted that he knew of no acts or
circumstances, other than the unsealed packages, to sustain such a
presumption.
Obviously no burden rested upon the contestant to refute the
suggestion of counsel for incumbent. This view is sustained by not only
the courts of Iowa but by those of most of the jurisdictions of the
United States.
Numerous authorities are cited by the Committee in support of this
position and the report continues:
These cases answer the contention of incumbent regarding the absence
of proof that the ballots were legally preserved.
A substantial compliance with the laws of Iowa has been shown in
this, that the ballots were found in the custody of the various county
auditors, the legal custodians of the ballots, and that out of the
large number of Iowa precincts in only two do the county auditors show,
in compliance with the stipulation of the parties, that there was any
defect in the envelopes in which the ballots were contained. This
showing makes a prima facie case, and no effort was made by incumbent
to amend his pleading or to overturn this presumption.
Under the Iowa law it was not open to incumbent to suggest the
existence of a mere possibility that the ballots were tampered with,
but he would have been compelled to offer evidence.
Sec. 172
showing that the ballots had been in actual point of fact tampered
with. That he did not offer to do.
This position is vigorously combated by the minority who insist:
The burden of proof is on the contestant to show that the ballots,
when they reached here, were in the same condition as they were in when
the judges of election delivered them to the county auditors. This is
not a technical objection. It is based upon the statute referred to
with reference to the duty of the county auditor in preserving ballots,
upon the stipulations agreed upon by the parties, and upon well-known
principles of law.
Unless the contestant meets this burden, the official count made by
the returning officers, upon which a certificate of election was given
to Brookhart, must stand. The certificate of election gives him a prima
facie right to a seat in the Senate, and that prima facie right can be
overturned only upon positive proof that he did not receive a plurality
of the votes.
It is apparent from the face of the record that the law was not
complied with in many instances. Two county auditors made a notation on
the bags containing the ballots to the effect that they were unsealed
at the time they prepared them for mail. Sixty-seven bags of ballots
came to Washington unsealed. There were 1,068 precincts in which there
was a discrepancy between the number of names on the polling list and
the number of ballots found in the boxes when they were counted here.
In one precinct, there were 198 missing ballots; in another precinct
there were 20 ballots missing. Later, a batch of ballots were sent from
that precinct to the committee, thus showing conclusively that the
ballots at that precinct had not been kept together and safely
preserved as required by statute. These instances of discrepancies and
shortages of ballots are referred to, in this connection, only to show
that the law was not complied with with reference to the preservation
of ballots.
In these circumstances, it can not be said that the contestant has
met the burden the law places upon him to prove that the ballots were
kept as required by statute and that they are the identical ballots
cast at the election. Because of the failure to make such proof, a
recount of the ballots should not have been made.
The majority and minority further disagree as to the doctrine of
intention of voters. The majority adopt this policy:
In determining for whom the votes included under the remaining
classes should be counted, your committee sought to ascertain the true
intent of the voters. In reaching. this conclusion, it took into
consideration every circumstance that might shed any possible light
upon such intent. It disregarded all claims put forward to disfranchise
the voter, either by a contention that certain marks were
distinguishing marks, or that the voter had not complied technically
with the provisions of the statute.
And in ascertaining the intent of the voter they are guided by the
further rule that:
In any and all cases of doubt the advantage was given the incumbent,
because he had the certificate of nomination.
The minority, while tacitly concurring as to the rule followed by the
majority in case of doubt, dissent from the ``rule of intention of
voters'' promulgated by the majority:
It is contended by the majority that the ``rule of the intention of
the voter'' should be followed. Grant that, but how is ``the intention
of the voter'' to be determined? The intention of the voter must be
found by an examination of his ballot, viewed in the light of the law
of the State informing the voter how to mark his ballot.
The majority do not agree to this opinion, and proceed to reach a
conclusion without regard to the law aliende the ballot.
Sec. 172
The true rule of law is that if the intention of the voter is
manifest from what appears on the face of his ballot, in the light of
the law under which it was cast, it must be counted for the candidate
for whom it appears to have been cast.
No evidence is permissible to explain a ballot which is unambiguous
on its face. Ballots that are ambiguous may be explained by extrinsic
evidence.
It will likely be admitted by each member of the majority that under
the law of Iowa, these 1,344 votes should be counted for Brookhart. But
they are not counted for him because of disaffection in the Republican
Party in Iowa and cordial dislike of Brookhart by many members of that
party.
So, the majority decided that it had a right to take into
consideration this condition and to refuse to count a ballot for
Brookhart, which under the law of Iowa he was entitled to have counted
for him.
No voter of any of these ballots had testified as to his intention.
The majority entered into the broad field of surmise and speculation,
and in the face of the law, declared that the voter, although he marked
his ballot under the provisions of the law and thus cast a vote for
Brookhart, did not intend to do so.
Text writers on ``Elections'' and cases almost without number support
the contention that is made with reference to the legal propositions
advanced here. It is not deemed necessary to cite them. Indeed, it is
to be doubted whether there can be found any respectable authority to
the contrary.
It was stated by the majority in the consideration of the matter in
the committee that many of these 1,344 ballots are what is called a
``mixed ballot.'' That does not prevent those from being counted for
Brookhart. Sections 812, 814, and 815 of the Iowa Code settle this in
his favor.
It is only by holding that a State has no right to pass any law on
the subject of voting for a Senator, or if it does enact any such law
it shall not be given consideration by the Senate, that the 1,344 votes
can be denied Brookhart. Being unable to agree to any such doctrine and
being unwilling to disfranchise a voter of Iowa who has followed the
law of his State in marking his ballot, I contend that a grave
injustice will be done, not only to Brookhart, but to the voters
themselves, and that a precedent will be established that may rise up
in later times to haunt us and produce a harmful and disastrous effect
upon many States to the end that such States may be denied rights given
under the Constitution of the United States.
The minority views conclude:
Reviewing the whole matter, it appears:
1. That if no recount should be had, on the face of the returns
Brookhart has a plurality.
2. That if a recount should be had in the machine counties and in the
precincts where the ballots corresponded with the names on the polling
lists, Brookhart has a plurality, irrespective of the 1,344 votes that
the committee refused to count for him.
3. That on a proper count of the legal ballots before the committee,
in the light of the law of Iowa, Brookhart has a plurality.
Therefore, it is respectfully submitted that he should be declared to
be entitled to a seat in the United States Senate as a Senator from the
State of Iowa
.However, the majority maintain:
Your committee, having found that the contestant, Daniel F. Steck,
received a plurality of all the votes cast for United States Senator in
the State of Iowa at the election held on November 4, 1924, and that
the incumbent, the Hon. Smith W. Brookhart, did not receive a majority
of the votes cast at said election, it therefore recommends that the
Senate shall declare that the Hon. Smith W. Brookhart was not elected a
Senator from the State of Iowa at the election held
Sec. 173
on November 4, 1924, and is not entitled to a seat as a Senator from
said State, but that the Hon. Daniel F. Steck did receive a plurality
of the votes cast for United States Senator from said State at the said
election, and is entitled to a seat as a Senator from said State.
In conformity with this finding the following resolution was offered
in the Senate, and taken up for consideration on April 6.\1\
Resolved, That Daniel F. Steck is hereby declared to be a duly
elected Senator of the United States from the State of Iowa for the
term of six years, commencing on the 4th day of March, 1925, and is
entitled to be seated as such.
To this resolution the following substitute was proposed:
Resolved, That Smith W. Brookhart is hereby declared to be a duly
elected Senator of the United States from the State of Iowa for the
term of six years, commencing on the 4th day of March, 1925, and is
entitled to a seat as such.
Debate continued intermittently until April 12, when the substitute
was rejected and the resolution was agreed to without amendment, yeas
45, nays 41.
173. The Senate election case of Gerald P. Nye, from North Dakota,
in the Sixty-ninth Congress.
Instance wherein the Senate, overruling the recommendation of its
committee, seated a Senator designate whose credentials the committee
had reported to be invalid.
The sufficiency of authorization conferred by a State statute on the
State executive to appoint a United States Senator under the provisions
of the seventeenth amendment to the Constitution.
A resolution determining title to a seat in the Senate raises a
question of the highest privilege and takes precedence over any other
order.
On January 4, 1926,\2\ Mr. Guy D. Goff, of West Virginia, on behalf
of the Committee on Elections and Privileges, proposed to submit the
following resolution:
Resolved, That Gerald P. Nye is not entitled to a seat in the Senate
of the United States as a Senator from the State of North Dakota.
Mr. C. C. Dill, of Washington, rising simultaneously, claimed the
floor in debate.
The Vice President \3\ recognized Mr. Goff and said:
The Secretary will read the resolution reported by the Senator from
West Virginia. It relates to a question of the highest privilege and
takes precedence over any other order.
Mr. Nye had presented credentials in regular form certifying to his
appointment by the Governor of the State of North Dakota to fill a
vacancy, and the question in the case turned on the governor's
authority to fill the vacancy under the State law, and the
interpretation of the provisions and requirements of the seventeenth
amendment to the Constitution of the United States in construing that
law.
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\1\ Record, pp. 6859-7281.
\2\ First session Sixty-ninth Congress, Record, p. 1408.
\3\ Charles G. Dawes, Vice President.
Sec. 173
The act of March 15, 1917, chapter 249 of the Laws of the State of
North Dakota, provided:
Be it enacted by the Legislative Assembly of the State of North
Dakota:
(1) That section 696 of the Compiled Laws of North Dakota for 1913 be
amended and reenacted to read as follows:
696. Vacancies, how filled: All vacancies, except in the office of a
member of the legislative assembly, shall be filled by appointment as
follows:
1. In the office of State's attorney in which a vacancy has occurred
by reason of removal under section 695 of the Compiled Laws of North
Dakota for the year 1913, by the board of county commissioners by and
with the advice and consent of the governor.
2. In county and precinct offices by the board of county
commissioners, except vacancies in such board.
3. In offices of civil townships, by the justices of the peace of
such township, together with the board of supervisors or a majority of
them, and if a vacancy occurs from any cause in the board of
supervisors, the remaining member of the board shall fill such vacancy.
4. In State and district offices by the governor.
(2) All sets or sections in conflict herewith are hereby repealed.
In the report of the Committee on Privileges and Elections, filed on
December 16, 1925,\1\ the majority took the view that the authority
conferred by the statute was insufficient.
The majority say:
The act of March 15, 1917, supra, does not refer expressly or by
implication to the office of United States Senator, and does not in the
language used, in the light of the history of the act, disclose a clear
legislative intent to incorporate into the laws of the State of North
Dakota the provisions of the seventeenth amendment to the Constitution
of the United States. Nowhere is express reference made to the
Constitution of the United States, and nowhere in said act does the
language used indicate that the Legislature of the State of North
Dakota had the seventeenth amendment to the Constitution of the United
States in mind when the act of March 15, 1917, supra, was passed.
Certainly the reasonable presumption is that if the Legislature of
North Dakota had intended to incorporate into the act of March 15,
1917, supra, the provisions of the seventeenth amendment to the
Constitution of the United States, it would have given the executive of
that State the power, as the seventeenth amendment provides, to make a
temporary appointment only, until the people should fill the vacancy by
election, and would not have given the executive power to fill the
vacancy. The act of March 15, 1917, supra, in so far as it can be held
by construction and intendment to confer upon the executive of the
State of North Dakota, the power to make a temporary appointment, is in
conflict with the seventeenth amendment to the Constitution of the
United States, because it expressly, if it confers any power in the
case of a United States Senator, confers the power to fill a vacancy,
not the power to make a temporary appointment. It is only reasonable to
assume that the Legislature of North Dakota would have noted the
language employed in the applicable provisions of the seventeenth
amendment to the United States Constitution and would, by the use of
apt language, have conferred upon the executive the power to make
temporary appointments in the case of a vacancy in the office of United
States Senator and would not have premeditatedly exceeded the authority
delegated and the power conferred to fill vacancies.
The majority also fail to find authorization for the appointment of a
United States Senator in the constitution of the State of North Dakota.
The report says:
Obviously it can not be logically and legally asserted that the
affirmative legislation contemplated by the seventeenth amendment can
be found in the provisions of a constitution adopted and
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\1\ First session Sixty-ninth Congress, Senate Report No. 3.
Sec. 174
ratified in 1889, approximately 24 years before the adoption of the
seventeenth amendment to the United States Constitution. Then, again
the power of the executive under section 78 of the constitution of
North Dakota is limited to cases where ``no mode is provided by the
constitution or law for filling such vacancy.'' A mode for filling a
senatorial vacancy, assuming the constitutional provision to be
applicable, has been expressly provided by the seventeenth amendment to
the Constitution of the United States, which is concededly the supreme
law of the land, and which the Governor of the State of North Dakota is
compelled to support. This amendment, in the absence of legislative
action empowering him to make a temporary appointment, commands him to
issue writs of election.
The majority therefore conclude:
It is therefore respectfully submitted that neither section 78 of the
constitution of North Dakota nor the act of March 15, 1917, conferred
any authority upon the executive of North Dakota either to make a
temporary appointment or to fill a vacancy in the office of United
States Senator by appointment; and that the Legislature of the State of
North Dakota has not by due legislation conferred upon the governor of
that State such appointive power as was delegated to it by the
seventeenth amendment to the United States Constitution.
The minority, while dissenting sharply from the conclusion of the
majority, differ as to the line of reasoning leading to that opinion.
Debate on the resolution continued on January 7, 8, 9, 11, and 12,
when the Senate agreed, yeas 41, nays 39, to a substitute proposed by
Mr. Hubert D. Stephens, of Mississippi, in the following form:
Resolved, That Gerald P. Nye is entitled to a seat in the Senate of
the United States as a Senator from the State of North Dakota.
Thereupon Mr. Nye took the oath and assumed his seat in the Senate.
174. The election case of James M. Beck, of Pennsylvania, in the
Seventieth Congress.
The right of a Member elect to take the oath being challenged, the
Speaker directed him to stand aside temporarily.
The oath having been administered to other members elect, a
resolution relating to the election of a Member elect temporarily
denied administration of the oath was entertained as a matter of the
highest privilege.
Discussion of the term ``inhabitant'' as a constitutional
qualification for membership in the House.
Instance wherein the question of qualification was passed on after a
Member elect had been sworn in on his prima facie showing.
A Member renting an apartment June 1, 1926, in the State from which
elected November 6, 1926, and occupying it ``one or more times each
week'' was held to be qualified, although owning at the time a summer
home in another State and owning and maintaining a residence in the
District of Columbia.
On December 5,1927,\1\ the Speaker \2\ directed the Clerk to call the
roll by States for the administration of the oath of office to Members
and Delegates.
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\1\ First session Seventieth Congress, Record, p. 8.
\2\ Nicholas Longworth, of Ohio, Speaker.
Sec. 174
The State of Pennsylvania had been reached and the name of Mr. James
M. Beck, of Pennsylvania, was called, when Mr. Finis J. Garrett, of
Tennessee, rising in his place said:
Mr. Speaker, I object to the oath at this time being administered to
Mr. James M. Beck, a Representative elect from the State of
Pennsylvania, upon the ground that there is a question as to his
eligibility under the Constitution of the United States, there being a
question as to whether he was an inhabitant of the State of
Pennsylvania at the time of his election, as is required by the
Constitution. Later I shall present a resolution upon the subject.
The Speaker directed:
The Chair asks the gentleman from Pennsylvania to temporarily step
aside.
The call of the roll having been resumed and completed, Mr. Garrett
offered as privileged, the following resolution:
Whereas it is charged that James M. Beck, a Representative elect to
the Seventieth Congress from the State of Pennsylvania, is ineligible
to a seat in the House of Representatives for the reason that he was
not at the time of his election an inhabitant of the State of
Pennsylvania in the sense of the provision of the Constitution of the
United States (par. 5 of sec. 2, Art. I) prescribing the qualifications
for Members thereof; and whereas such charge is made through a Member
of the House and on his responsibility as such Member, upon the basis,
as he asserts, of records and papers evidencing such ineligibility:
Resolved, That the question of the prima facie right of James M. Beck
to be sworn in as a Representative from the State of Pennsylvania of
the Seventieth Congress, as well as of his final right to a seat
therein as such Representative, be referred to Committee on Elections
No. 2; and until such committee shall report upon and the House decide
such question and right, the said James M. Beck shall not be sworn in
nor be entitled to the privileges of the floor; and said committee
shall have power to send for persons and papers and examine witnesses
on oath relative to the subject matter of this resolution.
After debate Mr. Garrett moved the previous question on the
resolution, and the yeas and nays being ordered, it was decided in the
negative, yeas 159, nays 245. So the previous question was refused.
Mr. Bertrand H. Snell, of New York, then proposed as a substitute:
Resolved, That the gentleman from Pennsylvania, Mr. Beck, be now
permitted to take the oath of office.
The substitute was agreed to and, the resolution as amended having
been adopted, Mr. Beck came forward and took the oath.
Following the organization of the House, Mr. Garrett offered this
resolution which was entertained as privileged and agreed to:
Whereas it is charged that James M. Beck, a Representative elect to
the Seventieth Congress from the State of Pennsylvania, is ineligible
to a seat in the House of Representatives for the reason that he was
not at the time of his election an inhabitant of the State of
Pennsylvania in the sense of the provision of the Constitution of the
United States (par. 5 of sec. 2, Art. I) prescribing the qualifications
for Members thereof; and
Whereas such charge is made through a Member of the House, and on his
responsibility as such Member upon the basis, as he asserts, of records
and paper evidencing such ineligibility:
Resolved, That the right of James M. Beck to a seat in the House of
Representatives of the Seventieth Congress be referred to the Committee
on Elections No. 2, which committee shall have power to send for
persons and papers and examine witnesses on oath relative to the
subject matter of the resolution.
Sec. 174
On March 17, 1928,\1\ Mr. Bird J. Vincent, of Michigan, from the
Committee on Elections No. 2 submitted its report.
The report points out that the sole question raised is whether Mr.
Beck at the time of his election was an inhabitant of Pennsylvania
within the purview of paragraph 2 of section 2, Article I of the
Constitution of the United States. No other issued is involved.
The report finds as to facts that Mr. Beck was born in Pennsylvania
and resided there continuously until 1900 when he removed to
Washington, D. C., and later to New York City, returning in 1920 to
Washington where he established his residence and purchased a home
which he still owns. On June 1, 1926, he leased an apartment in
Philadelphia, which he ``occupied one of more times each week.''
The report also shows that from 1924, when he voted in New York, he
did not vote again until in Philadelphia in September, 1927; that he
paid a poll tax of 25 cents in Philadelphia in September, 1927, but has
paid his income taxes in Washington; that he has maintained membership
in social and civic organizations in Pennsylvania but is carried on the
roll of all but one as a nonresident member; that he has registered in
hotels as residing at Washington and that his automobiles carry license
plates issued by the District of Columbia.
The report quotes the entire debate from the Madison Papers attending
the adoption of the clause requiring residence in the State as a
qualification for membership in Congress, and deduces:
It is evident that in this debate the framers of the Constitution
were seeking for a nontechnical word, the main purpose of which would
be to insure that the Representative, when chose, from a particular
State should have adequate knowledge of its local affairs and
conditions. Mr. Madison, Mr. Wilson, and Mr. Mercer, all emphasized
that it was not desired to exclude men who had once been inhabitants of
a State and who were returning to resettle in their original state, or
men who were absent for considerable periods on public or private
business. The convention by vote deliberately declined to fix any time
limit during which inhabitancy must persist.
The majority hold:
To be an inhabitant within the Constitution, it seems clear that one
must have, first, as a matter of fact, a place of abode, and, second,
that this place of abode be intended by him as his headquarters; the
place where his civic duties and responsibilities center; the place
from which he will exercise his civic rights. We think that a fair
reading of the debate on this paragraph of the Constitution discloses
that it was not intended that the word ``inhabitant'' should be
regarded in a captious, technical sense. Can it be that the fathers
intended that to determine whether one was an inhabitant of a
particular place that the number of days which he actually spent there
in a given period should be counted and his absences balanced against
the periods of his physical presence? Can it be that the fathers
intended that the tenure of his holding of a particular abode, whether
it be by fee-simple title or by leasehold, should govern the question
as to whether it was the place of inhabitance? We feel positive that
such a construction would in no sense carry out the meaning which the
framers of the Constitution regarded as contained in this word.
Further, such a technical attempt at construction would result in the
very confusion which the debate showed the framers hoped to avoid by
the rejection of the word ``resident.'' We think that a fair
interpretation of the letter and the spirit of this paragraph with
respect to the word ``inhabitant'' is that the frames intended that for
a person to bring himself within the scope of its meaning he must have
and occupy a place of abode within the particular State in which he
claims inhabitancy,
-----------------------------------------------------------------------
\1\ House Report No. 975.
Sec. 175
and that he must have openly and avowedly by act and by word subjected
himself to the duties and responsibilities of a member of the body
politic of that particular State.
The majority therefore conclude:
We do not think that the framers of the Constitution intended by the
use of the word ``inhabitant'' that the anomalous situation might ever
arise that a man should be a citizen, a legal resident, and a voter
within a given State and yet be constitutionally an inhabitant
elsewhere. If any such conclusion could be reached we might have the
peculiar result in this country of a man being a resident, a citizen,
and a voter in a given State, and yet within the constitutional sense
barred from the right of representing a district in that State in
Congress, but having the right to represent a district in another State
in Congress. No such interpretation can fairly be read into this
provision. We think that Mr. Beck having legally subjected himself to
the duties and responsibilities of a citizen and an inhabitant of
Pennsylvania, having maintained an habitation there, and having
occupied the same regularly, though not continuously, is also entitled
to the rights of a citizen and an inhabitant of Pennsylvania. We think
that such a finding is entirely within the meaning, the spirit, and the
letter of the Constitution.
The minority place an entirely different interpretation on the
account given in the Madison papers and note that:
On the 8th of August, 1787, in the Constitutional Convention, the
committee of detail struck out of the text at this place the word
``resident'' and substituted the word ``inhabitant.'' The motion was
made by Mr. Sherman and seconded by Mr. Madison, who thought the latter
less vague, and would permit absence for a considerable time on public
or private business without disqualification. They were trying to get
away from the abuse being made of the loose construction of
``resident'' by personal enemies of those who sought to qualify. There
is no suggestion of an uncommon meaning to be given the word in their
use of it here. The construction placed on these statements of Mr.
Madison and others by Mr. Beck is to apply it to his case wherein he
was absent from Pennsylvania 23 years, under his own admission, and yet
he would not be disqualified on the grounds of inhabitancy.
Continuing its application to the pending case, the minority say:
The word was substituted for ``resident``, and the reason clearly
given by the great Madison was to allow a temporary absence from a true
domicile, not to place it on a casual presence in a temporary domicile.
Mr. Beck was not a qualified elector of the State of Pennsylvania at
the time he voted in the primary of September 1927, nor at the time of
his election to Congress. The constitution of that State requires that
an elector must be a ``resident'' of the State for 6 months next before
voting in his case, and 12 months for one who has never before been a
citizen of Pennsylvania. And the courts of that State have repeatedly
and uniformly held as in Fry's election case:
``When the Constitution declares that the elector must be a resident
of the State for one year, it refers beyond question, to the State as
his home or domicile, and not as the place of a temporary sojourn.''
The report was taken up for consideration in the House on January
8.\1\ At the conclusion of the debate a substitute resolution offered
by Mr. Gordon Browning, of Tennessee, denying Mr. Beck's title to his
seat was rejected, yeas 78, nays 248, and the resolution, declaring him
``entitled to a seat in the Seventieth Congress as a Member of the
House of Representatives from the first congressional district of the
State of Pennsylvania'', was agreed to.
175. The Kansas election case of Clark v. White, in the Seventieth
Congress.
-----------------------------------------------------------------------
\1\ Record, p. 1351.
Sec. 175
Contestant having failed to serve notice of contest within the
prescribed time, the committee recommended that the case be dismissed.
The committee exercises its discretion as to the amount of fees
allowed in contested-election cases.
On February 21, 1928,\1\ Mr. Don B. Colton, of Utah, presented the
report of the Committee on Elections No. 1 in the Kansas case of W. H.
Clark v. Hays B. White.
The official returns gave contestant 31,065 votes and contestee
31,159 votes, a plurality of 94 votes for the sitting Member.
The pleadings in the case are summarized in the report as follows:
The contestant served on the contestee a notice of contest, a copy of
which notice and attached petition was in due course filed with the
Clerk of the House of Representatives.
To said notice and petition the contestee filed his answer setting
forth that ``by his ]aches, delay, and failure to comply with the
statute promulgated in this behalf by the Congress, or to serve on the
contestee any notice of intention to contest prior to December 11,
1926, the contestant is precluded from asserting or proceeding with
said contest, and that said contest be dismissed.
Thereafter nothing was done except that the attorneys for the parties
appeared before your committee and made brief statements and requested
that the contest be dismissed.
The committee therefore finds:
Your committee therefore finds, after a careful analysis of this case
and in conformity with congressional precedents, that this contested-
election case should be dismissed,
and recommend the usual resolutions declaring that the contestant was
not elected and that the contestee was elected and is entitled to his
seat.
In the course of the debate on the report in the House on February 23
\2\ Mr. Colton, the chairman of the committee, referred to the fees
asked in the case and said:
The committee feels that we should take this occasion to say that the
fees in this ease are allowed as we believe a fair and impartial judge
would allow such fees for the actual services rendered. In this case,
particularly on one side, there appears to have been very little work
done, and yet a claim was submitted for more then the entire amount
authorized by Congress. The committee has not allowed the amount that
was claimed. We went over the matter carefully and allowed what we
believed was a fair compensation for the work which was done; in fact,
I believe it is a generous allowance, and yet it is less than one-half
of the amount that was claimed. We expect to follow the practice of
allowing a reasonable fee only, and that for service actually rendered.
Mr. Edward E. Eslick, of Tennessee, the ranking minority member of
the committee, corroborated:
We took up the question of fees and costs, as the chairman has said,
just as an impartial judge would. This case was not viewed from the
political standpoint, but in order that fairness might be done between
the Government on the one hand and the contestant and the contestee on
the other, both as to fees and expense account.
There was no difference of opinion between the individual members of
the committee and after going over and carefully investigating the
expense items and the labor performed by the attorneys, this report
comes to the House as a unanimous report, both on the seating of Mr.
White and on the question of expenditures.
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\1\ First session Seventieth Congress. House Report No. 717.
\2\ Record, p. 3546.
Sec. 176
The resolutions recommended by the committee were unanimously agreed
to.
176. The New York election case of Hubbard v. LaGuardia, in the
Seventieth Congress.
The contestant having withdrawn from the contest by letter duly
certified, the committee reported a resolution confirming the title of
the sitting Member.
On February 28, 1929,\1\ Mr. Don B. Colton, of Utah, from the
Committee on Elections No. 1, submitted the report of that committee on
the case of Hubbard v. LaGuardia, in form, as follows:
The Committee on Elections No. 1, which has had under consideration
the contested election case of H. Warren Hubbard v. Fiorello, H.
LaGuardia, from the twentieth district of New York, reports as follows:
The contestant having withdrawn from the contest by a letter of
abatement duly subscribed and sworn to before a notary public, we
submit the following resolution for adoption:
Resolved, That Hon. Fiorello H. LaGuardia was duly elected a
Representative from the twentieth congressional district of the State
of New York to the Seventieth Congress and is entitled to his seat.
On March 1 \2\ the resolution was agreed to by the House without
debate or division.
177. The West Virginia election case of Taylor v. England, in the
Seventieth Congress.
An instance wherein irregularity of pleading as to time of filing was
waived by consent of other party.
The House in adjudicating contested-election cases is not bound by
State statutes prescribing details of election procedure.
On April 9, 1928 \3\ Mr. Charles L. Gifford, of Massachusetts,
submitted the report of the Committee on Elections No. 3, in the
election case of J. Alfred Taylor v. E. T. England, of West Virginia.
On the basis of the official returns, the incumbent had received a
plurality of 217 votes.
The grounds of the contest as set forth by the contestant and briefed
by the committee were--
(a) That several hundred ballots were cast which did not bear the
signature of the clerks of election written in the manner prescribed by
the West Virginia statute governing election procedure and which the
election officials refused to canvass, tabulate, or count, although
said ballots expressed the clear intent of the voter and consequently
should have been counted, his contention being that if the ballots so
rejected were to be counted they would give him a majority of the votes
cast.
(b) That fraud was exercised by the proponents of the contestee in
precinct no. 27, known as the Triangle precinct, and that all the votes
cast in said precinct, which gave a majority therein of 385 for the
contestee, should be rejected.
Irregularity in the pleadings is thus treated in the report:
Evidence was taken by depositions, the contestee's brief was filed on
the 31st of December, 1927, and thereafter, to wit, on the 10th day of
February, 1928, the contestant filed his reply brief,
-----------------------------------------------------------------------
\1\ First session Seventieth Congress, House Report No. 787.
\2\ Record, p. 3862.
\3\ First session Seventieth Congress, House Report No. 1181.
Sec. 178
said brief being submitted after the expiration of the 30-day period
prescribed for the filing thereof, but being accepted by your committee
with the consent of the contestee.
After a full consideration of the issues thus presented the committee
agreed unanimously that--
(1) The House of Representatives should not consider itself obligated
to follow the drastic statute of the State of West Virginia, under the
provisions of which all ballots not personally signed by the clerks of
election in strict compliance with the manner prescribed had been
rejected, but should retain the discretionary right to follow the rule
of endeavoring to discover the clear intent of the voter. However, your
committee further found that the contestant had not substantiated his
allegation that if all the votes which had been rejected by the
election officials on the ground stated were to be counted the result
would be a majority in his favor.
(2) That neither the contestant nor the contestee had presented
sufficient evidence to establish their mutual contentions that fraud
had been practiced in various precincts, including the so-called
Triangle precinct, the rejection of the votes cast in which would have
been necessary if the contestant were to prevail, and that no votes
should be thrown out because of fraud.
In accordance with these findings the committee agree:
That the contestant has not sustained the contentions which were the
basis of his contest and begs to submit for adoption the following
resolution:
``Resolved, That E. T. England was duly elected a Representative from
the sixth district of West Virginia to the Seventieth Congress, and is
entitled to his seat therein.''
The resolution submitted by the committee was unanimously adopted by
the House on April 12,\1\ without debate.
178. The Minnesota election case of Wefald v. Selvig in the
Seventieth Congress.
Instance wherein the contestant having failed to file testimony, the
case abated.
The contestant having failed to prosecute his case according to law
or to take testimony, the House took no further notice of his claim.
On December 14, 1927,\2\ the Speaker laid before the House a
communication from the Clerk transmitting papers in the contested-
election case of Knud Wefald v. C. G. Selvig, of Minnesota, as follows:
Sir: I have the honor to inform the House that in the ninth
congressional district of the State of Minnesota, at the election held
on November 2, 1926, C. G. Selvig was certified as having been duly
elected as a Representative in the Seventieth Congress, and his
certificate of election in due form of law was filed in this office.
His right to the seat was questioned by another candidate, Knud Wefald,
who served notice on the returned Member of his purpose to contest the
election. A copy of this notice, together with the reply of contestee,
were filed in the office of the Clerk of the House, who also received
the affidavit of contestee and of his counsel to the effect that no
notice of taking depositions or of the introduction of proof of any
kind was served upon contestee or upon his attorneys, and that more
than 40 days elapsed from the date of service of contestee's answer. No
testimony has been filed with the Clerk. The contest, therefore,
appears to have abated.
The case was referred to the Committee on Elections No. 2, and no
further record appears.
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\1\ Record, p. 6298.
\2\ First session Seventieth Congress, Record, p. 664.
Sec. 179
179. The Senate election case of Frank L. Smith, of Illinois, in the
Seventieth Congress.
Refutation of the doctrine that neither the Senate nor its committees
have jurisdiction to pass upon the qualifications of a Senator elect
prior to the administration of the oath of office.
Instance wherein the Senate declined to seat one whose election was
declared to be tainted with fraud and corruption.
A candidate in whose behalf exorbitant sums of money were received
and dispensed by personal agents and representatives with his knowledge
and consent was held to be disqualified.
Instance wherein a Senator rising in his place objected to the
swearing in of a Senator elect and offered resolution authorizing
appointment of a committee to determine his qualifications and
eligibility.
On December 16, 1926,\1\ Mr. Henry F. Ashurst, of Arizona, rising in
his place in the Senate, said:
Mr. President, I send to the desk a resolution and I ask that the
same be read. Telegraphic dispatches announce that the Governor of
Illinois has appointed Mr. Frank L. Smith to be a Senator of the United
States from the State of Illinois to fill the vacancy created by the
death of former Senator William B. McKinley. It is difficult to believe
that Mr. Smith, under the circumstances, and in view of the testimony
and record in the case, will accept this appointment.
I ask that the resolution be read and lie on the table.
The Clerk read:
Resolved, That the qualifying oath be not administered to Hon. Frank
L. Smith, the Member designate, and that the special committee
appointed under and by authority of Senate Resolution 195, Sixty-ninth
Congress, first session, be, and it hereby is, directed to report to
the Senate at the earliest convenient date such recommendations in the
premises as may to said special committee seem warranted.
The resolution was ordered to lie on the table.
On January 18, 1927 \2\ Mr. Charles S. Deneen, of Illinois, sent to
the desk the credentials of Mr. Smith certifying to his appointment as
Senator from the State of Illinois by the governor of that State to
fill a vacancy and submitted the following resolutions:
Whereas Frank L. Smith, claiming to be a Senator from the State of
Illinois, has presented his credentials, which are regular and in due
form, and there being no contestant for the seat: Therefore be it
Resolved, That the oath of office be now administered to the said
Frank L. Smith: Be it further
Resolved, That his credentials and all charges which may be filed
against him and all objections that may be raised as to his right to a
seat in the Senate be, and the same are hereby, referred to the
Committee on Privileges and Elections, and that committee is hereby
directed to hear and determine all charges and objections which may be
submitted and to report to the Senate after due inquiry and as early as
convenient.
-----------------------------------------------------------------------
\1\ Second session Sixty-ninth Congress, Record, p. 554.
\2\ Record, p. 1911.
Sec. 179
In support of the resolution Mr. Deneen argued that in accordance
with the precedents a Senator designate presenting proper credentials
must be sworn in before consideration could be given to any question of
qualifications.
However, after extended debate, the Senate overruled that contention
and agreed to a substitute proposed by Mr. James A. Reed, of Missouri,
in the following form:
Resolved, That the question of the prima facie right of Frank L.
Smith to be sworn in as a Senator from the State of Illinois, as well
as his final right to a seat as such Senator, be referred to the
Committee on Privileges and Elections; and until such committee shall
report upon and the Senate decide such question and right, the said
Frank L. Smith shall not be sworn in or be permitted to occupy a seat
in the Senate.
The said committee shall proceed promptly and report to the Senate at
the earliest possible moment.
The report \1\ of the committee was submitted on the last day of the
session and reported briefly that:
Owing to the illness of Mr. Smith, the committee was unable to
complete its hearings and the matter is now pending before your
committee.
On the first day \2\ of the succeeding Congress, when Mr. Smith,
having filed credentials certifying to his election, presented himself
to take the oath, Mr. George W. Norris, of Nebraska, objected and
offered resolutions concluding with the following:
Resolved, That the claim of the said Frank L. Smith to a seat in the
United States Senate is hereby referred to the said special committee
of the Senate, with instructions to grant such further hearing to the
said Frank L. Smith, and to take such further evidence on its own
motion as shall be proper in the premises, and to report to the Senate
at the earliest possible date; and that until the coming in of the
report of said committee and until the final action of the Senate
thereon the said Frank L. Smith be, and he is hereby, denied a seat in
the United States Senate: Provided, That the said Frank L. Smith shall
be accorded the privileges of the floor of the Senate for the purpose
of being heard touching his right to receive the oath of office and to
membership in the Senate.
After debate extending through several days the Senate agreed to the
resolutions on December 7, 1927--yeas 53, nays 28.
Mr. Reed, from the special committee to which the case was thus
referred, submitted the report of the committee on January 17, 1928.\3\
The report thus tersely disposes of the question of jurisdiction of
the Senate prior to the administration of the oath of office:
The attorney general of Illinois, State Senator Dailey, and Mr. Smith
all took the position that until and unless Mr. Smith was sworn in as a
United States Senator neither the special committee nor any regular
committee of the Senate, nor the Senate itself, had the power or
jurisdiction to pass upon the qualifications of Mr. Smith, or to take
any action whatsoever in relation to his claim to a seat.
It will be observed that nothing was presented by Mr. Smith or on his
behalf which has not in substance been heretofore presented upon the
floor of the Senate. He offered no new evidence; he presented no new
argument; he simply stood upon the claim that the committee and the
Senate were alike without jurisdiction to consider and pass upon his
right to a seat in the Senate until it shall have first seated him as a
Senator.
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\1\ Second session Sixty-ninth Congress, Senate Report No. 1717.
\2\ First session, Seventieth Congress, Record, p. 3.
\3\ First session, Seventieth Congress, Senate Report No. 92.
Sec. 180
The committee disregard this contention and recommend the adoption of
resolutions which after slight modification, were agreed to by the
Senate on January 19, 1928, as follows:
Whereas on the l7th day of May, 1926, the Senate passed a resolution
creating a special committee to investigate and determine the improper
use of money to promote the nomination or election of persons to the
United States Senate, and the employment of certain other corrupt and
unlawful means to secure such nomination or election.
Whereas said committee in the discharge of its duties notified Frank
L. Smith, of Illinois, then a candidate for the United States Senate
from that State, of its proceeding, and the said Frank L. Smith
appeared in person and was permitted to counsel with and be represented
by his attorneys and agents
Whereas the said committee has reported
That the evidence without substantial dispute shows that there was
expended directly or indirectly for and on behalf of the candidacy of
the said Frank L. Smith for the United States Senate the sum of
$458,782; that all of the above sum except $171,500 was contributed
directly to and received by the personal agent and representative of
the said Frank L. Smith with his full knowledge and consent; and that
of the total sum aforesaid there was contributed by officers of large
public service institutions doing business in the State of Illinois or
by said institutions the sum of $203,000, a substantial part of which
sum was contributed by men who were nonresidents of Illinois, but who
were officers of Illinois public-service corporations.
That at all of the times aforesaid the said Frank L. Smith was
chairman of the Illinois Commerce Commission, and that said public-
service corporations commonly and generally had business before said
commission, and said commission was, among other things, empowered to
regulate the rates, charges and business of said corporations.
That by the statutes of Illinois it is made a misdemeanor for any
officer or agent of such public-service corporations to contribute any
money to any member of said commission, or for any member of said
commission to accept such moneys upon penalty of removal from office.
That said Smith has in no manner controverted the truth of the
foregoing facts, although full and complete opportunity was given to
him, not only to present evidence but arguments in his behalf; and
Whereas the said official report of said committee and the sworn
evidence is now and for many months has been on file with the Senate,
and all of the said facts appear without substantial dispute Now
therefore be it
Resolved, That the acceptance and expenditure of the various sum of
money aforesaid in behalf of the candidacy of the said Frank L. Smith
is contrary to sound public policy, harmful to the dignity and honor of
the Senate, dangerous to the perpetuity of free government, and taints
with fraud and corruption the credentials for a seat in the Senate
presented by the said Frank L. Smith; and be it further
Resolved, That the said Frank L. Smith is not entitled to membership
in the Senate of the United States, and that a vacancy exists in the
representation of the State of Illinois in the United States Senate.
180. The Senate election case of William B. Wilson v. William S.
Vare, of Pennsylvania, in the Seventieth Congress.
A Senator elect, challenged as he was about to take the oath, stood
aside upon the suggestion of the Vice President.
An instance wherein the Senate declined to permit the oath to be
administered to a Senator-elect pending the examination of his
qualifications.
The right of a Senator elect to take the oath having been denied
pending an investigation, the Senate by resolution conferred on him the
privilege of appearing on the floor in his own behalf.
Sec. 180
The consideration of an election case is a matter of the highest
privilege.
Instance wherein the Senate condemned the excessive use of money in a
primary election.
The Senate, as a continuing body, may continue its committees through
the recess following the expiration of a Congress.\1\
A select committee created during a previous Congress was declared by
resolution to have continued in full force and operation during the
interim between the two Congresses.
On May 19, 1926,\2\ the Senate agreed to a resolution providing for
the appointment of a select committee to investigate expenditures in
Senatorial primaries and general elections. This resolution \3\ was
subsequently supplemented by the passage of the following:
Whereas William B. Wilson, of the State of Pennsylvania, has
presented his petition to the Senate of the United States contesting
the election of William S. Vare as a Senator from Pennsylvania in the
election held on the 2d day of November, 1926; and
Whereas the said William B. Wilson charges in his petition fraudulent
and unlawful practices in connection with the nomination and in
connection with the alleged election of the said Vare as Senator from
the State of Pennsylvania, and that unless preserved for the use of the
Senate certain evidence relating to said charges and said election will
be lost or destroyed; and
Whereas the special committee of five organized under Senate
Resolution Numbered 195, Sixty-ninth Congress, first session, by
direction of the Senate has entered upon an investigation pertaining to
alleged corrupt practices in the election held November 2, 1926, and in
the primary preceding it in the State of Pennsylvania: Therefore be it
Resolved, That the special committee of five constituted under Senate
Resolution Numbered 195, Sixty-ninth Congress, first session, in
addition to and not in detraction from the powers conferred in said
resolution, be, and it is hereby, authorized and empowered:
(1) To take possession, in the presence of the said William S. Vare
or his representative if the said William S. Vare desires to be present
or to have a representative present, and preserve all ballot boxes and
other containers of ballots, ballots, return sheets, voters' check
lists, tally sheets, registration lists and other records, books, and
documents used in said senatorial election held in the State of
Pennsylvania on the 2d day of November, 1926.
(2) To take and preserve all evidence as to the various matters
alleged in said petition, including any alleged fraud, irregularity,
unlawful expenditure of money, and intimidation of voters or other acts
or facts affecting the result of said election. Sixty-ninth Congress,
first session, with respect to the subject matter of that resolution.
(3) That said committee is hereby vested with all powers of procedure
with respect to the subject matter of this resolution that said
committee possesses under Resolution Numbered 195.
(4) That the Sergeant at Arms of the Senate and his deputies axe
directed to attend the said special committee and to execute its
directions. That the said special committee may appoint subcommittees
of one or more members with power and authority to act for the full
committee in taking possession of evidence and in the subpoenaing of
witnesses and taking testimony.
Resolved further, That the expenses incurred in carrying out this
resolution shall be paid from. the contingent fund of the Senate upon
vouchers ordered by the committee or any subcommittee thereof and
approved by the chairman of the committee, the cost of same not to
exceed $15,000 in addition to the moneys heretofore authorized to be
expended.
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\1\ See see. 4544 of Hinds' Precedents.
\2\ First session Sixty-ninth Congress, Record, p. 9677.
\3\ Second session Sixty-ninth Congress, Record, p. 1413.
Sec. 180
The committee thus created failing to conclude its investigations,
and a question having arisen as to the continuance of the authority of
the committee beyond the expiration of the Congress, Mr. James A. Reed,
of Missouri, on December 12, 1927,\1\ offered the following resolution,
which was agreed to, yeas 58, nays 21:
Resolved, That Senate Resolutions Numbered 195, 227, and 258 of the
Sixty-ninth Congress, first session, and Senate Resolution Numbered 324
of the Sixty-ninth Congress, second session, be, and they hereby are,
continued in force during the interim between the Sixty-ninth Congress
and the Seventieth Congress and thereafter until the 30th day of
December, 1927.
That the special committee created pursuant to Senate Resolution
Numbered 195 of the Sixty-ninth Congress, first session, is authorized
in its discretion, and/or at the request of either William S. Vare or
William B. Wilson, to open any or all ballot boxes and examine and
tabulate any or all ballots and scrutinize all books, papers, and
documents which are now in its possession, or any that shall come into
its possession, concerning the general election held in the State of
Pennsylvania on the 2d day of November, 1926.
On December 5, 1927 \2\ while Senators were being sworn in, the name
of Mr. Vare was called, whereupon Mr. George W. Norris, of Nebraska,
rising to a question of privilege, objected to administration of the
oath to Mr. Vare and offered, as privileged, a resolution declaring him
not entitled to a seat in the Senate.
Mr. Charles Curtis, of Kansas, having requested that Mr. Vare stand
aside until the oath should have been administered to Senators against
whom there were no objections, the Vice President \3\ said:
Without objection, the resolution will lie over, and the Senator
elect from Pennsylvania win stand aside.
The resolutions proposed by Mr. Norris were considered at intervals
and on December 9,\4\ were agreed to in the following form:
Whereas on the 17th day of May, 1926, the Senate passed a resolution
creating a special committee to investigate and determine the improper
use of money to promote the nomination or election of persons to the
United States Senate, and the employment of certain other corrupt and
unlawful means to secure such nomination or election; and
Whereas said committee, in the discharge of its duties, notified
William S. Vare, of Pennsylvania, then a candidate for the United
States Senate from that State, of its proceeding and the said William
S. Vare appeared in person and by attorney before said committee while
it was engaged in making such investigation; and
Whereas the said committee has reported the evidence which without
substantial dispute shows that at the primary election at which the
said William S. Vare is alleged to have been nominated as a candidate
for the United States Senate, there were numerous and various instances
of fraud and corruption in behalf of the candidacy of the said William
S. Vare, and that there was spent in behalf of the said William S. Vare
in said primary election, by the said William S. Vare and his friends,
a sum of money exceeding $785,000; and
Whereas the said William S. Vare has in no manner controverted the
truth of the foregoing facts, although full and complete opportunity
was given him, not only to present evidence but arguments in his
behalf; and
Whereas the said official report of said committee and the sworn
evidence taken by said committee is now and for many months has been on
file in the Senate, and all of the said facts appear without
substantial dispute; and
-----------------------------------------------------------------------
\1\ First session Seventieth Congress, Record, p. 488.
\2\ First session Seventieth Congress, Record, p. 4.
\3\ Charles G. Dawes, of Illinois, Vice President.
\4\ First session Seventieth Congress, Record, p. 337.
Sec. 180
Whereas on the 10th day of January, 1927, there was filed in the
Senate an official communication from the then Governor of
Pennsylvania, made and delivered to the Senate in pursuance of law, the
following certificate:
Commonwealth of Pennsylvania,
Governor's Office,
Harrisburg, January 8, 1927.
The President of the Senate of the United States,
Washington, D.C.
Sir: I have the honor to transmit herewith the returns of the
election of United States Senator held on November 2, 1926, as the law
of this Commonwealth directs.
I have the honor also to inform you that I have to-day signed and by
registered mail delivered to Honorable William S. Vare a certificate
which is as follows:
``To the President of the Senate of the United States:
``This is to certify that on the face of the returns filed, in the
office of the secretary of the Commonwealth of the election held on the
2d day of November, 1926, William S. Vare appears to have been chosen
by the qualified electors of the State of Pennsylvania a Senator from
said State to represent said State in the Senate of the United States
for the term of six years beginning on the 4th day of March, 1927.''
The form of words customarily used for such certificates by the
governors of this Commonwealth and the form recommended by the Senate
of the United States both include certification that the candidate in
question has been ``duly chosen by the qualified electors'' of the
Commonwealth.
I can not so verify, because I do not believe that Mr. Vare has been
duly chosen. On the contrary, I am convinced, and have repeatedly
declared, that his nomination was partly bought and partly stolen, and
that frauds committed in his interest have tainted both the primary and
the .general election. But even if there had been no fraud in the
election, a man who was not honestly nominated can not be honestly
entitled to a seat.
The stealing of votes for Mr. Vare, and the amount and the sources of
the money spent in his behalf, make it clear to me that the election
returns do not in fact correctly represent the will of the sovereign
voters of Pennsylvania.
Therefore, I have so worded the certificate required by law that I
can sign it without distorting the truth.
I have the honor to be, sir,
Very respectfully yours,
Gifford Pinchot, Governor.
Now, therefore be it
Resolved, That the expenditure of such a large sum of money to secure
the nomination of the said William S. Vare as a candidate for the
United States Senate prima facie is contrary to sound public policy,
harmful to the dignity and honor of the Senate, dangerous to the
perpetuity of a free ,government, and, together with the charges of
corruption and fraud made in the report of said committee, and
substantiated by the evidence taken by said committee, and the charges
of corruption and fraud officially made by the Governor of
Pennsylvania, prima facie taints with fraud and corruption the
credentials of the said William S. Vare for a seat in the United States
Senate; and be it further
Resolved, That the claim of the said William S. Vare to a seat in the
United States Senate is hereby referred to the said special committee
of the Senate, with instructions to grant such further hearing to the
said William S. Vare and to take such further evidence on its own
motion as shall be proper in the premises, and to report to the Senate
within sixty days if practicable; and that until the coming in of the
report of said committee and until the final action of the Senate
thereon the said William S. Vare be, and he is hereby, denied a seat in
the United States Senate: Provided, That the said William S. Vare shall
be accorded the privileges of the floor of the Senate for the purpose
of being heard touching his right to receive the oath of office and to
membership in the Senate.
Sec. 180
The special committee thus authorized submitted a partial report on
December 22, 1926,\1\ and on February 22, 1929 \2\ after lengthy
investigations, presented a final report which charged fraud and
concluded:
It is respectfully submitted that the evidence as to fraud and
corruption in the primary election stands as it did when the committee
filed its partial report with the Senate; and that Mr. Vare and his
attorneys have failed to rebut the findings of the committee touching
the election records.
In the meantime, on January 8, 1927 \3\ and again on March 4 \4\
William B. Wilson had protested the election of Mr. Vare and the
contest had been referred to the Committee on Privileges and Elections,
which submitted a majority report on December 4, 1929,\5\ declaring Mr.
Wilson was not elected and that Mr. Vare had--
received a plurality of the legal votes cast at the general election
held on November 2, 1926, for the office of the United States Senate
from the State of Pennsylvania.
The report was filed and no further action was taken thereon.
On September 9, 1929,\6\ Mr. Norris proposed a resolution reviewing
the proceeding and denying the contestee a seat in the Senate.
Mr. James E. Watson, of Indiana, raised a question as to the
privilege of the resolution.
The Vice President \7\ held:
If the question were submitted to the Chair, the Chair would hold
that the matter is of the highest privilege, and under the rule should
be disposed of at once.
The resolution was exhaustively debated and on December 6, 1929,\8\
was agreed to, yeas 58, nays 22, in this form:
Whereas on the 17th day of May, 1926, the Senate passed a resolution
creating a special committee to investigate and determine the improper
use of money to promote the nomination or election of persons to the
United States Senate and the employment of certain other corrupt and
unlawful means to secure such nomination or election; and
Whereas said committee, in the discharge of its duties, notified
William S. Vare, of Pennsylvania, then a candidate for the United
States Senate from that State, of its proceedings, and the said William
S. Vare appeared in person and by attorney before said committee while
it was engaged in making such investigation; and
Whereas the said committee, in its report to the Senate (Rept. No.
1197, pt. 2, 69th Cong.), found that the evidence, without substantial
dispute, showed that at the primary election at which the said William
S. Vare was alleged to have been nominated as a candidate for the
United States Senate there were numerous and various instances of fraud
and corruption in behalf of the candidacy of the said William S. Vare;
that there was spent in behalf of the said William S. Vare in said
primary election, by the said William S. Vare and his friends, a sum of
money exceeding $785,000; and that the said William S. Vare had in no
manner controverted the truth of the foregoing facts, although full and
complete opportunity had been given him not only to present evidence
but arguments in his behalf; and
-----------------------------------------------------------------------
\1\ Second session Sixty-ninth Congress, Senate Report No. 1197, part
2.
\2\ Second session Seventieth Congress, Senate Report No. 1858.
\3\ Second session Sixty-ninth Congress, Record, p. 1259.
\4\ Record, p. 5895.
\5\ Second session Seventy-first Congress, Senate Report No. 47.
\6\ First session Seventy-first Congress, Record, p. 3413.
\7\ Charles Curtis, of Kansas as, Vice President.
\8\ Second session Seventy-first Congress, Record, p. 197.
Sec. 181
Whereas in the consideration of said report, on the 9th day of
December, 1927, the Senate, by solemn declaration declared ``that the
expenditure of such a large sum of money to secure the nomination of
the said William S. Vare as a candidate for the United States Senate
prima facie is contrary to sound public policy, harmful to the dignity
and honor of the Senate, dangerous to the perpetuity of a free
government, and, together with the charges of corruption and fraud made
in the report of said committee, and substantiated by the evidence
taken by said committee, prima facie taints with fraud and corruption
the credentials of the said William S. Vare for a seat in the United
States Senate''; and thereupon the Senate referred the claim of the
said William S. Vare to a seat in the United States Senate to the said
committee, with instructions to grant such further hearing to the said
William S. Vare and to take such further evidence on its own motion as
it deemed proper in the premises; and
Whereas the said committee, having complied with the direction of the
Senate, has made a further report to the Senate (Rept. No. 1858, 70th
Cong., 2d sess.) of its doings in the premises. From said report and
the evidence taken by the committee it appears that the evidence as to
fraud and corruption in said primary election has not been refuted and
the same stands as it did when the committee filed its partial report
to the Senate (Rept. No. 1197, 69th Cong); and
Whereas the said committee, from the foregoing facts and conclusions,
including those previously reported in regard to said primary election,
has reported to the Senate (Rept. No. 1858, 70th Cong., 2d sess., p.
15) that the said William S. Vare is not entitled to a seat in the
United States Senate; and
Whereas the Senate has delayed action upon said report on account of
the illness of the said William S. Vare; and
Whereas the said William S. Vare has recovered from said illness and
no further reason exists for longer delay on the part of the Senate:
Therefore be it
Resolved, That the said report (S. Rept. No. 1858, 70th Cong., 2d
sess.) be, and the same is hereby, approved and adopted; and be it
further
Resolved, That the said William S. Vare be, and he is hereby, denied
a seat in the United States Senate.
The Senate then \1\ agreed to the following resolution without debate
or record vote:
Resolved, That William B. Wilson was not elected and is not entitled
to a seat in the United States Senate from the State of Pennsylvania.
On November 12, 1929,\2\ the Senate adopted resolutions authorizing
the reimbursement of Mr. Wilson and Mr. Vare for expenses incurred in
the contest.
181. The Texas election case of Wurzbach v. McCloskey, in the
Seventy-first Congress.
The sitting Member having appeared before the committee and conceded
the election of the contestant and withdrawn all pleadings, the
committee expurgated its findings of fraud and confined its report to
the brief statement that the contestant was entitled to be seated.
A resolution directing county officials to produce election records,
in effect a subpoena duces tecum, was accorded high privilege.
On February 10, 1930,\3\ Mr. Willis G. Sears, of Nebraska, from the
Committee on Elections No. 3, submitted the report of the committee in
the Texas case of Harry M. Wurzbach v. Augustus McCloskey.
-----------------------------------------------------------------------
\1\ Ibid.
\2\ First session Seventy-first Congress, Record, p. 5476.
\3\ Second session, Seventy-first Congress, House Report No. 648.
Sec. 181
In response to allegations of gross fraud the committee determined to
examine election records and recount sundry ballots cast in the
election, and on January 7, 1930,\1\ Mr. Sears, by direction of the
committee, requested immediate consideration for the following
resolution:
Resolved, That Jack R. Burke, county clerk, or one of his deputies,
Perry Robertson, county judge, or one of his deputies, and Lamar
Seeligson, district attorney, all of Bexar County, State of Texas, are
hereby ordered to appear before Elections Committee No. 3, of the House
of Representatives as required then and there to testify before said
committee in the contested-election case of Harry M. Wurzbach,
contestant, versus Augustus McCloskey, contestee, now pending before
said committee, for investigation and report; and that said county
clerk or his deputy, said county judge or his deputy, and said district
attorney bring with them all the election returns they and each of them
have in their custody, control, or/and possession, returned in the said
county of Bexar, Tex., at the general election held on November 6,
1928, and that said county clerk also bring with him the election
record book for the said county of Bexar, Tex., showing the record of
returns made in the congressional election for the fourteenth
congressional district of Texas, for the said general election held on
November 6, 1928, and to that end that the proper subpoenas be issued
to the Sergeant at Arms of this House commanding him to summon all of
said witnesses, and that said county clerk, said county judge, and said
district attorney to appear with said election returns, as witnesses in
said case, and add county clerk with said election record book; and
that the expense of said witnesses and all other expenses under this
resolution shall be paid out of the contingent fund of the House; and
that said committee be, and hereby is, empowered to send for all other
persons or papers as it may find necessary for the proper determination
of said controversy.
The circumstances attending the preparation of the report were
explained by Mr. Sears in the course of the debate in the House:
As a matter of fact, the committee sat--and, I think, patiently--for
about 10 days, and the committee unanimously was satisfied that Mr.
Wurzbach had been elected and that his grave charges of fraud were
true. Every member of the committee would have said that. At that stage
of the proceedings, the contestee, Mr. McCloskey, appeared and said, in
effect, ``I am satisfied that I was not elected and that Mr. Wurzbach
was elected, and I am contending no further in this matter.''
The previous question being ordered, the resolution was unanimously
agreed to and Mr. Wurzbach appeared and took the oath.
Mr. William H. Stafford, of Wisconsin, having reserved a point of
order as to its privilege, the Speaker \2\ said:
The resolution not only provides for the presence of witnesses, but
also provides for bringing before them the ballot boxes, and so forth.
The Chair thinks it would be necessary to have such a resolution to
bring that about.
The Chair can not recall an immediate precedent, but would think this
is the proper way to cover the appearance of witnesses under the
circumstances set forth.
The Chair would think that the committee might have adopted other
methods, but thinks that this is clearly in order.
Extended hearings were held and preparations were made to indite a
report, when the sitting Member appeared before the committee and
conceded the nomination of the contestant and announced his withdrawal
from the contest.
The committee accordingly submitted a brief report reading in full:
-----------------------------------------------------------------------
\1\ Record, p. 1236.
\2\ Nicholas Longworth, of Ohio, Speaker.
Sec. 182
To the Speaker and the House of Representatives:
Your committee begs leave to report, that after a full hearing, we
find that Harry M. Wurzbach, contestant, is entitled to be seated as
Member of the House of Representatives, from the fourteenth
congressional district of Texas, and that Augustus McCloskey is not
entitled to retain his seat in said body.
Willis G. Sears,
Chairman.
Charles L. Gifford,
Chas. Brand,
Albert R. Hall,
Ed. H. Campbell,
John W. McCormick,
John H. Kerr,
Butler B. Hare.
182. The Maryland election case of Hill v. Palmisano, in the Seventy-
first Congress.
A point of order being raised challenging the validity of a report on
a contested-election case presented for filing, the Speaker directed
that the report be printed with a reservation of the point of order.
Consideration of the point of order that the report on a contested-
election case was not submitted within the time specified by the rules
of the House.
On June 14, 1930,\1\ Mr. Randolph Perkins, of New Jersey, submitted
the report of the majority of the Committee on Elections No. 2 in the
Maryland case of John Philip Hill v. Vincent L. Palmisano. According to
the report, the contestant was credited by the official returns with
having 27,047 votes and the contestee 27,377 votes, a majority of 330
votes for the latter.
The contestee having been seated, the contestant filed his notice of
contest challenging the election returns, denying the validity of the
election certificate, and assigning numerous grounds for the contest.
The proceedings of the committee are epitomized in the minority
report as follows:
First, At its meeting on June 6, 1930, the committee unanimously
decided that aside from charges pertaining to the fourth precinct of
the third ward in the city of Baltimore, there was nothing in the
record authorizing interference with the result of the election as
certified by the proper officials of the State of Maryland.
Second, By a vote of 5 to 3, the committee decided that the evidence
did not justify throwing out the returns of said precinct.
Third, The effect of these findings being necessarily a conclusion
that the contestant did not receive a majority of the votes cast at the
election, the committee voted, 5 to 3, that the contestant was not
elected and is not entitled to a seat in this House.
Fourth, A motion then being offered to the effect that the contestee
was not elected and is not entitled to a seat in the House, two members
of the majority indicated their inability to support such a motion, and
while no vote was taken, these members, with the minority members,
constituted a majority of the committee.
Fifth, A motion then being offered to the effect that the contestee
is not entitled to a seat in the House, was adopted, 5 to 3, and it was
agreed to ask for an extension of time from the House in which to agree
upon the form of resolution to be reported and upon the contents of the
majority report.
-----------------------------------------------------------------------
\1\ Second session Seventy-first Congress, House Report No. 1901.
Sec. 182
The majority find that the issues presented by the case may be
reduced to two questions, the conduct of the election in the fourth
precinct of the fourth ward and the personal knowledge and conduct of
the contestee.
In considering the first of these questions the majority report:
This committee finds that the election board in the fourth precinct
of the third ward flagrantly disregarded every provision of the
election laws of the State of Maryland with respect to the taking the
ballots from the box, the counting, recording, and certification of the
ballots in that precinct.
No attempt whatever was made by the election board to follow the law
as to counting, recording, or certifying the vote in this precinct.
The law is clear in its provision that the judges shall open the
ballots and that the ballots shall be canvassed separately by them, one
by one. This was not done.
The majority therefore conclude:
We can not and do not place the seal of approval on the conduct of
this election board in this precinct nor accept the ballots and returns
as genuine, and this, when taken in connection with the personal
conduct and knowledge of Palmisano hereinafter considered, requires us
to report that he was not elected and should not retain his seat in
this House.
As to the second question the majority report:
There were registered from Palmisano's house his brother-in-law,
Vincent Fermes, and his wife, Anna, Fermes. The undisputed fact is that
both Vincent and Anna Fermes resided in Hagerstown, Md., and had
resided there for several years and were voters there.
The names of both Vincent and Anna Fermes were voted on from
Palmisano's residence at the election on November 6, 1928. Vincent's
name was voted on just before the polls closed, being the next to the
last vote cast, and while Palmisano was at the polling place.
Palmisano knew that his brother-in-law and sister-in-law were not
entitled to vote in his precinct and knew that they were not residing
in his home. He knew that they actually lived in Hagerstown.
These votes so cast on the names of Vincent and Anna Fermes were
illegal and fraudulent and in the judgment of your committee, were cast
with the knowledge, consent, and approval of the contestee, Palmisano.
On this finding of fact the majority decide:
Having first determined that the conduct of the count, tally, and the
certificate of the election officers was entirely contrary to law and
that opportunity had been afforded by the election officers for
partisan workers of the contestee to not only participate in the
handling of the ballots, but in the removing from the ballot box,
sorting, shuffling, and pretended count thereof, we have come to the
conclusion that we can not say that the ballots counted by the
committee were genuine ballots cast by the voters. For this reason, and
in view of the committee's findings that Palmisano was personally
chargeable with fraud, we find that he was not elected, and that he
should not be permitted to retain his seat in the House.
The minority views dissent from the majority findings of fact,
insisting that charges of fraud in the precinct in question have not
been substantiated and that the vote of alleged relatives of the
contestee illegally cast from his residence was by impersonation, and
recommending the adoption of resolutions declaring that the contestant
has not been elected and that the sitting member is entitled to his
seat.
On presentation \1\ of the majority report for filing, Mr. Malcolm
Tarver, of Georgia, raised a point of order and said:
-----------------------------------------------------------------------
\1\ Second session Seventy-first Congress, Record, p. 11199.
Sec. 183
The report has not been authorized. I will state that on June 6,
1930, the Committee on Elections No. 2 held the last meeting it has
held, and on that day voted 5 to 3 against seating contestant, John
Philip Hill, and it voted 5 to 3 against throwing out the returns from
the fourth precinct of the third ward in the city of Baltimore. The
copy of the report that I hold in my hand is directly at variance with
the action taken by the committee, in that the report finds that the
returns from the fourth precinct in the third ward should be thrown
out, when the committee voted that they should not be and further finds
that the contestant, if this is done, would be entitled to his seat in
the House, whereas the committee voted to the contrary.
There has been no meeting of the committee since then, and no
resolution approved by the committee, although I presume that one that
has been reported by the gentleman who is acting for the committee,
except that the first portion of a resolution dealing with the rights
of the contestant was approved by the committee by a vote of 5 to 3,
finding that he was not entitled to his seat and had not been elected.
The second part of the resolution was never placed before the
committee, but the members of the committee were unable to agree upon
its verbiage, and the statement was made that another meeting of the
committee would be held in order that its verbiage might be agreed
upon. Notwithstanding that, the gentleman purports to report to the
House this morning a report which includes, I presume, a resolution
which was not acted upon by the committee as to the rights of the
contestee.
Mr. Bertrand H. Snell, of New York, objected that the point of order
was not properly presented at this time.
The Speaker \1\ entertained the point of order and decided:
Under the circumstances the Chair thinks the fair thing to do, he not
being apprised of all the facts in connection with the matter, is to
permit the report now to be printed, and the gentleman from Georgia may
reserve his point of order, and if the case is called up the Chair will
give the matter consideration.
The Chair will permit the report to be received and printed at this
time, but the gentleman from Georgia will have his full rights in the
matter in case the report is called up.
Thereupon Mr. Fiorello H. LaGuardia, of New York, submitted the
further point that the report was not in order for the reason that it
was presented in violation of paragraph 47 of Rule XI.
The Speaker announced:
The gentleman from New York reserves a point of order.
183. The Missouri election case of Lawrence v. Milligan, in the
Seventy-first Congress.
The accuracy of the count in a disputed precinct being challenged,
the House ordered a recount.
On June 6, 1930,\2\ Mr. Randolph Perkins, of New Jersey, from the
Committee on Elections No. 2, presented the report of that committee on
the contested-election case of H. F. Lawrence v. Jacob L. Milligan, of
Missouri.
According to the returns originally certified the contestant had
received 32,626 votes and the contestee 32,665, a majority of 39 votes
for the sitting Member. On this return the certificate of election was
issued to the contestee who was seated by the House.
In the hearing of the case it developed that the issue turned on the
accuracy of the count of the vote cast in the northeast precinct of
Liberty. Accordingly an
-----------------------------------------------------------------------
\1\ Nicholas Longworth, of Ohio. Speaker.
\2\ Second session Seventy-first Congress, Record, p. 1814.
Sec. 184
order was secured from the House and the ballots in question were
brought to Washington and counted by the committee who report the
following finding:
After the regular hearing of this case upon the record and the
argument of counsel it was apparent that the controversy turned largely
on the vote cast in the northeast precinct of Liberty, Clay County,
Mo., the contestant insisting that Jacob L. Milligan, the sitting
Member and contestee, had been accredited with 125 more votes than he
was entitled to in said precinct; the contestant insisting that the
correct vote in this precinct as shown by return of precinct election
officers was 173 votes for contestant and 345 votes for the contestee
but that the returns certified by the county canvassing board of Clay
County showed 173 votes for the contestant and 470 votes for the
contestee.
The committee of its own motion directed that said original ballot
box and ballots in said precinct be brought before the committee, that
the count of the same might be made by said committee, which was
accordingly done, and by said count as made by the committee it showed
170 ballots were cast for the contestant and 474 ballots were cast for
the contestee.
The recount of this precinct gave the contestee a clear majority of
46 votes, and the report of the committee confirming his title to his
seat was agreed to in the House on June 13,\1\ without debate or record
vote.
184. The Florida election case of Lawson v. Owen, in the Seventy-
first Congress.
A woman who had forfeited her citizenship through marriage to a
foreign subject and who later resumed it through naturalization less
than seven years prior to her election was held to fulfill the
constitutional requirements as to citizenship to a seat in the House.
On March 24, 1930,\2\ Mr. Carroll L. Beedy, of Maine, presented the
report of the Committee on Elections No. I on the Florida case of
William C. Lawson v. Ruth Bryan Owen.
The official return gave the sitting Member a majority of 30,842
votes. There was no question of fraud and the only issue involved in
the case was whether Mrs. Owen on the date of her election had been
seven years a citizen of the United States within the meaning of
paragraph 2 of section 2, Article I of the Constitution.
Mrs. Owen was born in the United States and remained a citizen until
her marriage to Reginald Altham Owen, a British subject, on May 3,1910.
Following her marriage she resided in England until May 30, 1919, when
she and her husband returned permanently to the United States, where
she made application for naturalization and was restored to citizenship
on April 27, 1925. She was a candidate for Representative in Congress
from the fourth congressional district of the State of Florida at the
election held on November 6, 1928, and the petition in contest filed by
the contestant cites numerous cases holding that votes cast for persons
not in a position to serve have been construed as null and void.
In passing on this question the committee find:
An examination of all the precedents cited by counsel for the
contestant reveals the fact that knowledge brought home to the voters
respecting the ineligibility of candidates for office and for which
candidates they voted despite their knowledge of ineligibility, is
limited to cases involving ineligibility based on a palpable physical
fact or on an established legal fact.
-----------------------------------------------------------------------
\1\ Second session Seventy-first Congress, Record, p. 11099.
\2\ Second session Seventy-first Congress, House Report No. 968.
Sec. 184
The committee agrees with counsel for the contestant that the case of
State v. Frear and other cases cited in connection therewith are good
authority for the proposition that where the ineligibility of a
candidate is an established and unquestioned fact, and voters who with
knowledge, willfully insist upon voting for a candidate physically or
legally dead, they should lose their votes and that the remaining
candidate although receiving only a minority of the votes cast, is in
fact elected.
The committee then differentiate:
It is the judgment of the committee that the above cases are not
applicable to the case of Mrs. Ruth Bryan Owen. The question of her
citizenship and her incidental eligibility or ineligibility was a
highly disputable question. It was not an established physical or legal
fact.
The committee therefore conclude:
Your committee therefore concludes inasmuch as the voters of the
fourth congressional district of Florida cast a majority of votes for
Mrs. Owen in an election legally held, not in the face of an
established fact of ineligibility but rather in the face of an
opponent's contention as to ineligibility, that their votes were not
thrown away. It is the view of your committee that the majority vote in
question expressed a preference for Mrs. Owen, who was physically able
to take a seat in the House of Representatives, and who could not
legally be precluded therefrom except by action of the House of
Representatives.
As to whether the contestee had been seven years a citizen prior to
the election, the committee agree unanimously that the sitting Member
is eligible to election but differ as to methods of reaching that
conclusion.
Five members of the committee, without regard to political
considerations--
arrive at their conclusion through a consideration of the
constitutional provision alone. They believe that the 7-year period of
citizenship is cumulative; that it was not the intent of the framers of
the Constitution, and that it is not now to be construed as meaning
that the seven years' citizenship qualification for a Representative in
the House of Representatives is to be limited to the seven years next
preceding the date of election.
They take the position that in construing any section of the
Constitution, the ordinary meaning should be ascribed to its language
and that when that meaning is apparent on the face of the instrument,
the language used must be accepted both by legislatures and by courts,
without adding to it or taking from it. Their view is that if the
framers had intended the seven years' citizenship to have been limited
to the seven years next preceding an election, they would have said so.
Their final conclusion is that inasmuch as Mrs. Ruth Bryan Owen had
been a citizen of the United States for 24 years and 7 months prior to
her marriage, and for 3 years and 6 months subsequent to her
naturalization, she enjoyed an American citizenship extending over a
period of 28 years and 1 month, and is, therefore, eligible to a seat
in the Federal House of Representatives.
The remaining four members of the committee reason that:
The 7-year period of citizenship required of eligibles to a seat in
the House of Representatives must be construed as meaning seven years
next preceding the date of election. Their view is that while Mrs. Owen
lost her American citizenship under the expatriation act of March 2,
1907, by her marriage to an alien on May 3, 1910, she nevertheless
regained her American citizenship through naturalization under the
terms of the Cable Act of September 22, 1922. They concede that the
Cable Act was not retroactive in the sense that its enactment, though
it expressly repealed section 3 of the expatriation act of 1907,
restored lost citizenship.
Their view is that the Federal Congress which had the power to
deprive Mrs. Owen of her American citizenship under the expatriation
act of 1907, also had the power to pass a law which set out the
procedure by means of which she could recover her American citizenship.
This she did when she became a naturalized American citizen under the
provisions of section 2 of the Cable Act. They hold that though Mrs.
Owen lost her United States citizenship under the
Sec. 185
expatriation act of 1907 by reason of her marriage to an alien, she
nevertheless regained it under the Cable Act which, in the concluding
sentence of section 3, declares that--
``after her naturalization she shall have the same citizenship status
as if her marriage had taken place after the passage of this act.''
That status, say those of the committee who insist upon a 7-year
period of American citizenship next preceding the election, is clearly
set forth in the first sentence of section 3 of the Cable Act, which
declares that--
``a woman citizen of the United States shall not cease to be a
citizen of the United States by reason of her marriage after the
passage of this act * * *.''
They hold that the Cable Act passed subsequent to the adoption of the
nineteenth amendment, which gave the ballot to the American women,
should be viewed in the light of that amendment as but another step in
extending the rights and privileges of American women. Their view is
that it should be liberally construed as a measure intended to right an
injustice done American women by the act of 1907, and to place her upon
an equality with American men who never lost their American citizenship
through marriage with an alien.
Their conclusion is that Mrs. Ruth Bryan Owen, through
naturalization, enjoys the status as an American woman who marries an
alien subsequent to the passage of the Cable Act, namely, the status of
one who never loses her citizenship. In the terms of the Cable Act
itself, hers is the status of a woman who--
``does not cease to be a citizen of the United States by reason of
her marriage.''
The committee therefore unanimously conclude that the sitting Member
meets the constitutional requirements of eligibility as to citizenship,
and recommend the adoption of the usual resolutions denying the
election of the contestant and affirming the election of the contestee.
After brief debate the resolutions were agreed to in the House on
June 6 \1\ without division.
185. The Indiana election case of Updike v. Ludlow, in the Seventy-
first Congress.
Instance wherein the time permitted by the rules in which the
election committees of the House shall make final report on contested-
election cases was extended by resolution.
On June 25, 1930,\2\ on motion of Mr. Carroll L. Beedy, of Maine,
from the Committee on Elections No. 1, the House agreed to the
following resolution:
Resolved, That the Committee on Elections No. 1 shall have until
January 20, 1931, in which to file a report on the contested-election
case of Updike v. Ludlow, notwithstanding the provisions of clause 47
of Rule XI.
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\1\ Second session Seventy-first Congress, Record, p. 10620.
\2\ Second session Seventy-first Congress, Record, p. 11701.