I

1892. CONGRESSIONAL ·RECORD-SENATE. . 1381

By Mr. DALZELL: Petition of the United Presbyterian Church By Mr. MITCHELL: Petition of citizens of Fort Atkinson, of Braddock, Pa., in relation to closing of the World's Fair on Wis., requesting the closing of the World's Fair on Sunday-to Sunday and to other matters-to the Select Committee on the Co­ the Select Committee on the Columbian Exposition. lumbian Exposition. Also, petition of Daniel OjConnell for the removal of the charge Also, petition of Nancy G. Miller, to accompany House bill of desertion-to the Committee on Military Affairs. 4698-to the Committee on Claims. Also, petition of the mayor and common council of Superior, Also, statement to accompany House bill 6200, for the relief of Wis., protesting against the bill to attach the city of Superior to Wilhelmine Kirchner, Washington, D. C.-tothe Committee on the customs collection district of Duluth-to the Committee on Claims. Interstate and Foreign Commerce. By Mr. ENGLISH: Petition of Robert H. Cornish, in favor of By Mr. O'NEILL of Missouri: Petition of James Hawkins for adopting the metric system in the custom-house service-to the pension-to the Committee on Invalid Pensions. · Committee on Coinage, Weights, and Measures. By Mr. POWERS: Petition of W. A. Martin and others, citi­ Also, petition of the Rev. S. K. Doolittle and others, in favor zens of Fairfax, Vt.; of Dr. F. W. Carpenter and others, of Ru; of a loan to the Columbian Exposition on condition that the Expo­ pert, and of Edward Adams and 47 others, of Grand Isle, for the sition be closed on Sunday-to the Select Committee on the Co- free delivery of mails in country districts-to the Committee on lumbian Exposition. . . the Post-Office and Post-Roads. By Mr. EVERETT: Papers in the claim of EdwardFpwler, of By Mr. RAY: Petition of citizens of New Berlin, Chenango Catoosa County, Ga.-to the Committee on War Claims. County, N.Y., in favor of a constitutional amendment separat­ By Mr. GILLESPIE: Petition of the National Woman's (jh-ris­ ing church and state, etc.-to the Committee on the Judiciary. tian 'J,'emperance Union, asking that no exposition or exhibition Also, petition of the United States court at the city of Bing- for which appropriations are made by Congress be opened on hamton, N. Y.-to the Committee on the Judiciary. - Sunday:-to the Select Committee on the Columbian Exposition. Also, petition of comrades of Walton Dwight, of Binghamton, By Mr. GEISSENHAINER: Petition of 525 members of the N.Y., for the proposed law giving preference to veterans of the Methodist Episcopal Church of Ocean Grove, N. J., against open­ late war, etc.-to the Committee on Invalid Pensions. ing the World's Fair on Sunday-to the Select Committee on the Also, resolutions of the Board of Trade of Binghamton, N.Y.; Columbian Exposition. asking for a term of court at that city-to the Committee on the By Mr. GROUT: Memorial of the Baptist Church in West Judiciary. Wardsboro, Vt., E. B. Earle, pastor, against Sunday opening By Mr. REED: Petition of D. W. True & Co. and 30 others, of the Columbian Exposition-to the Select Committee on the citizens and business firms of Portland, Me.; of S. C. Straut and Columbian Exposition. 33 others, of S. B. Gunnison and others, of Cumberland County, Also, memorial of the Milwaukee Chamber of Commerce, re­ and of J~ R. Libby and25others, merchants of Portland, in favor monstrating against the passage of Senate bills 1757 and 1268 of an amendment to the Constitution prohibiting sectarian ap­ and House bill 2699-to the Committee on Interstate and Foreign propriations-to the Committee on the Judiciary. Commerce . By Mr. TOWNSEND: Resolutions of U.S. Grant Post, No. 13, . Also, memorial of Mrs. D. F. Fuller, State president of the Grand Army of the Republic, of Greeley, Colo., in favor of certain nonpartisan Woman's Christian Temperance Union, Montpelier, pension legislation-to the Committee on Invalid Pensions. • a.gamBt selling intoxicating drinks on the grounds of the Colum­ Also, resolutions of A. Lincoln Post, No. 4, Department of bian Exposition-to the Select Committee on the Columbian Ex­ Colorado and Wyoming, Grand Army of the Republic, indors­ position. ing the· resolutions of the Twenty-fifth National Encampment, Also, memorial of J. W. F. Podmore in behalf of Indian edu­ Grand Army of the Republic, held August 5, 6, and 7, 1891-to cation~to the Committee on Indian Affairs. the Committee on Invalid Pensions. · By Mr. HARTER: Papers to accompany House bill5310-to Also, petition of citizens of Eagle County, Colo., in favor of the the Committee on Invalid Pensions. election of Senators by direct vote of the people-to the Commit­ Also, papers accompanying House bill1344-to the Committee tee on the Election of President and Vice-President and Repre- on Invalid Pensions. sentatives in Congress. . Also, papers to accompany House bill 4086 for an honorable dis­ By Mr. VAN HORN: Petition of residents of the town of charge of Solomon Boston, of Galena, One hundred and twenty­ Herkimer, N.Y., for free delivery of mail in country districts­ first Ohio Volunteer Infantry-to the Committee on Military to the Committee on the Post-Office and Post-Roads. Affairs. By Mr. WHEELER of Alabama: Papers in the claim of Reu­ Also, petition of VVilliam Wikel to accompany petition for the ben Street, of Madison County, Ala.-to the Committee on War removal of the charge of desertion-to the Committee on Military Claims. Affairs. By Mr. WILLIAMS of Massachusetts: Petition of 22 citizens Also, papers in the matter of :WilsonS. Lafferty, to accompany of Ashland, of 17 of Sheldonville, of Hopkinton, and Ashland, House bill 5964-to the Committee on Militar·y Affairs. praying for free delivery of mails in country districts-to the Also, petition of Henry P. Cassell, to accompany House bill Committee on the Post-Office and Post-Roads. 6239, for an honorable discharge-to the Committee on Military Affairs. By Mr. HENDERSON of Iowa: Petition of the Wisconsin In­ dian Association, recommending a full appropriation for Indian SEN.ATE. education-to the Committee-on Indian Affairs. By Mr. HOLMAN: Petition to a-ccompany House bill for the WEDNESDAY, Febrtta.ry 24, 1892. relief of John Gray-to the Committee on Invalid Pensions. Prayer by the Chaplain, R-ev. J. G. BUTLER, D. D. Also, papers to accompany a bill for the relief of Mildred Pate­ to the Committee on Invalid Pensions. The Journal of yes~rday's proceedings was read and approved. By Mr. HOOKER of Mississippi; Papers in the clai~ of the VISITORS TO WEST POINT . Roman Catholic Church at Jackson. M1ss.-totheComm1ttee on . The VICE-PRESIDENT appointed Mr. CAMERON and Mr. WarClaims. · BUTLER members of the Board of Visitora on the part of the Sen­ By Mr. JOLLEY: Petition of citizens of Douglas County, S. ~te to attend the next annual. examination of the cadets at the Dak., asking Congress to pass the Conger lard bill-to the Com­ United States Military Academy at West Point, N. Y. m~ttee on Agriculture. Also, petition of citizens of the same place, asking Congress to PETITIONS AND MEMORIALS. pass the Butterworth option bill-to the Committee on Agricul­ Mr. BUTLER presented resolutions adopted by the Cotton Ex­ ture. change of Charleston, S. C., and resolutions adopted by the Cham­ By Mr. LAYTON: Petition of J. H. Berryman and 37 other ber of Commerce of Charleston, H. C., favoring the continuance citizens, of Shawnee Township, Allen County, Ohio, praying for of the appropriation for the fast-mail service between Tampa, the pa-ssage of the Hatch option bill-to the Committee on Agri­ Fla., and the Northern and Eastern cities; which were referred culture. to the Committee on Post-Offices and Post-Roads. _ By Mr. LODGE: Petition of A. B. Merrill and 9 others, of He also presented additional papers to accompany the bill (S. Everett, Mass., to remove the. duty o:r;t pof?tage stamps-to the 2043) for the relief of Carrie 0. Walla9e; which were referred to Committee on the Post-Office and Post-Roads. · · the Committee on Pensions. By Mr. McCREARY: Affidavit of Robert Siger, to file with · Mr. STEWART presented the petition of R. W. Tarry and 51 bill-to the Committee on War Claims. other citizens of Washoe County; the petition of George D. Mof­ Also, affidavits to be filed with bill for 1-he relief of Mrs. Mors fett and 47 other citizens of Humboldt County; the petition of Bell M. Robard....:...... to the· Committee ·on War Claims. James H.-Murphy and 18 other citizens of Eureka County; and By Mr. ~DITH: Pe?tiori.of.James Jac~so_n, for a. pension- the petition of Joseph Frenchey and 35 other citizens of Lincoln to the Committee on Invahd Pens1ons. ·; County, all in the State of Nevada, praying for the ceding to the 1382 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

States of certain public lands for the purposes of irrigation and islation to preveilt gambling in farm products; which was re· reclamation; which were referred to the Committee on Irriga­ ferred to Committee on the Judiciary. tion and Reclamation of Arid Lands. Mr. WASHBURN presented a petition of the Association of Mr. SHERMAN presented a petition of 76 citizens of Darke Post-Office Clerks of Duluth, Minn., praying for the passage of County, Ohio, praying for the passage of the antioption bill; House bill3608, in relation to such appropriations as shall enable which was referr2d to the Committee on the Judiciary. the Post-Office Department to carry out the provisions of the He also presented apetition,signed by85 citizensof NewPhil­ laws; which was referred to the Committee on Post-Offices and a.delphia, Ohio, praying for a constitutional amendment prohib­ Post-Roads. iting any State from passing laws respecting the establishment Mr. HIGGINS presented a memorial numerously signed by of religion, etc.; which was referred to the Committee on Edu­ citizens of Washington, D. C., remonstrating against the grant­ cation and Labor. ing of liquor licenses within 1 mile of the Soldiers' Home, in the Mr. MANDERSON. I present a memorial of Gen. Auger District of Columbia; which was referred to the Committee on Post, No. 192, Grand Army of the Republic, of Ewing, Nebr., the District of Columbia. which, while it is addressed to me, is evidently intended to be REPORTS OF COMMITTEES. presented in the form of a memorial to the Senate, and is over Mr. MORRILL. I am directed by the Committee on Finance, the seal of the post, protesting against and condemning the free­ to whom was referred the bill (S. 675 ) to amend the laws in re­ coinage bill now before Congress. I move that the memorial be gard to national-banking associations, to retire their circulation, referred to the Committee on Finance. and for other purposes, to submit an adverse report thereon. I The motion was agreed to. · ask that the bill be pla-ced on the Calendar. Mr. MITCHELL, I present petitions numerously signed by The VICE-PRESIDENT. The bill will be placed on the Cal· citizens of Corvallis, Oregon; Albany, Oregon; Jefferson, Ore­ endar with the adverse report of the committee. gon; Eugene City, Oregon; Newport, Oregon, and Orange, Cal., Mr. BUTLER, from the CommitteeonNavalAffairs, towhom all praying Congress to provide such guaranty as will assist, was referred the bill (S. 135) for the relief of D. H. Trefethen, protect, and hasten the completion, and secure the national . reported it without amendment, and submitted a report thereon. control of the Nicaragua Maritime Canal, as recommended to Mr. HIGGINS, from the Committee on the District of Colum­ Congress by the President in his recent message. I move that bia, to whom was r eferred the bill (S. 1666) to amend an act enti­ the petitions be referred to the Committee on Foreign R elations. tled ''An act to incorporate theWashington and Arlington Rail­ The motion was agreed to. way Company of the District of Columbia,:' approved February Mr. PADDOCK presented a petition of 28 citizens of Boston, 28, 1891 , chapter 382, volume 26 of the United. States Statutes at Mass., praying for the passage of the Paddock pure-food bill; Large, Fifty-first Congress, second session, submitted an adverse which was ordered to lie on the table. report thereon; which was agreed to, and the bill was postponed Mr. VOORHEES. I present a petition numerously and ex­ indefinitely. tensively signed by citizens of Indiana, praying for the adoption Mr. BLACKBURN, submitted a report to accompany -the bill of an amendment to the Constitution, as follows: (S. 205) for the relief of Maj. Green Clay Goodloe, heretofore re-: No State shall pass any law respecting an establishment of religion, or prohibiting the tree exercise thereof, or use its property or credit, or any ported from the Committee on Naval Affairs; which was ordered ~oney raised by taxation, or authorize either to be used, tor the purpose of to be printed. :rounding, ma.inta.ining, or aiding, by appropriation, payment tor s~rvices, ex­ FOREIGN EXHIBITORS AT THE WORLD'S FAIR. penses, or otherwise any church, religious denomination, or religious so­ ciety, or any institution, society, or undertaking which is, wholly orin part, Mr. SHERMAN. I am directed by the Committee on Foreign under sectarian or ecclesiastical control Relations to report an original bill, and to askfor its immediate I likewise present a petition of exactly the same character, ex­ consideration for the reasons which I shall state. tensively signed by citizens of South Bend, Ind. The bill (S. 2315) to protect foreign exhibitors at the World's I move that the petitions be referred to the Committee on Ed­ Columbian Exposition from prosecution for exhibiting wares ucation and Labor. protected by American patents and trade-marks was read the The motion was agreed to. first time by its title. . Mr. SHOUP. I present a memorial of the Milwaukee (Wis.) Mr. SHERMAN. The necessity for the immediate passage of Chamber of Commerce, remonstrating against the passage of what this bill is shown by a letter of the Secretary of State which I is known as the Washburn__bill. !present the memorial by re­ hold in my hand, and also by a letter of the Secretary of the In­ quest, and move that it be referred to the Committee on the Ju­ terior. The bill was framed also by the Commissioner of Pat­ diciary. ents to meet the difficulty that will occur in bringing over arti­ The motion was agreed to. cles from the different European countries for exhibition at Chi­ Mr. CALL. I present a petition signed by a large number of cago. Our law which protects trade-marks and patents will very citizens of Arcadia, Fla., and Punta Gorda, Fla., praying Con­ seriously embarrass them, and therefore it is important to have gress to pass a bill making Punta Gorda a port of entry. the bill passed as soon as possible. I also present a petition signed by a large number of citizens The VICE-PRESIDENT. The bill will bs read at length for of Punta Gorda, Fla., praying that that place be made a port of information. entry, and kept in the district of Key West, Fla. The bill was read the second time at length, as follows: Be it enacted, etc., That no citizen of any other country shall be held liable I move that the petitions be referred to the Committee on for the infringement of any patent granted by the United St ates, or of any Commerce. - trade-mark or label registered in the United States, wher e the act complained The motion was agreed to. . otis or shall be performed in connection with the exhibition o! any article or Mr. CALL presented a petition of the Board of Trade of Key thing at the World's Columbian Exposition at Chicago. West, Fla., praying for the improvement of the channel at Sa­ The VICE-PRESIDENT. Is there objection to the present vannah, Ga.; which was referred to the Committee on Commerce. consideration of the bill? Mr. FRYE presented a petition of members of West Minot There being no objection, the Senate, as in Committee of the Grange, No_ 42, Patrons of Husbandry, of Maine, prayingforthe Whole, proceeded to consider the bill. passage of legislation for the encouragement of silk culture; The bill was reported to the Senate without amendment, or­ which was referred to the Committee ~m Agriculture and For- dered to be engrossed for a third reading, read the third time, estry. · and passed. He also presented a petition of West Minot Grange, N<;>. 42, RECIPROCAL TRADE REL.i\.TIONS WITH CANADA. Patrons of Husbandry, of Maine, praying for the passage of the Mr. SHERMAN. I am directed by the Committee on Foreign bill defining lardand imposing a tax thereon; which was referred Relations to report back favorably the resolution relative to re­ to the Committee on Agriculture and Forestry. ciprocal trade relations with Canada, and to ask for its passage. He also presented the petition of J. S. Winslow and other The resolution.(submitted by Mr. HIGGINS, February 19, 1892) citizens of Portland, Me., praying for the passage of the bill to was considered by unanimous consent, and agreed to· as follows: regulate fisheries, etc.; which was ref(3rred to the Committee on Resolved, That the President be requested, 1! in his opinion not incompat­ Fisheries. ible with the public interests, to inform the Sena.teo! the proceedings recently He also presented a petition of West Minot Grange, No. 42, had with the representatives of the. Dominion o! Canada and of the British Government as to arrangements for reciprocal trade between Canada and the Patrons of Husbandry, of Maine, praying for the passage of leg­ United States. islation for the free delivery of mails in rural districts; which REVISED SENATE MANUAL. was referred to the Committee on Post-Offices and Post-Roads. Mr. MANDERSON, from the Committee on Printing, towhom He also presented a petition of West Minot Grange, No. 42, was referred the resolution submitted by him February 19,1892, Patrons of Husbandry, of Maine, praying for the passage of an reported it without amendment, and it was co~idered by unani­ act making certain issues of money full legal tender in payment mous consent, and agreed to; as follows: of all debts; which was referred to the Committee on Finance. Resolved, That there be printed for the use of the Senate, under the direc­ He also presented a petition of West Minot Grange, No. 42, tion of the Committee on Rules. a second edition of 830 copies of the Revised Patrons o.f Husbandry, of Maine, praying for the passage of leg- Senate Manual for 1892. • 1892. CONGRESSIONAL RECORD-SENATE. 1383

BILLS IN'l'RODUCED. The VICE-PRESIDENT. That change of reference will be made if there be no objection. The Chair hears none, and it is Mr. WARREN introduced a bill (S. 2316) to pension Mary A. so ordered. ,Abbott, late army nurse; which was read twice by its title, and referred to the Committee on Pensions. BILL RECOMMITTED. He also introduced a bill (S. 2317) for the relief of women en­ Mr. CULLOM. - Some 9-ays ago there was an adverse report rolled as army nurses; which was read twice by its title, andre­ made by the Senator from Mississippi [Mr. WALTHALL] upon the ferred to the Cqmmittee on Pensions. bill {S.1938} authorizing the restoration of the name of Wilbur Mr. MITCHELL introduced a bill (S. 2318) granting an in­ F. Melbourne, late first lieutenant, Fifteenth United States In­ Qrease of pension to Thomas Espy, of Oregon; which was read fantry, to the rolls of the Army, and providing that he be placed twice by its title, and referred to the Committee on Pensions. on the list of retired officers, and the bill was indefinitely post­ Mr. ALLISON introduced a bill {S. 2319) to provide for the es­ poned. After a conversation with the Senator from Mississippi tablishment of a port of delivery at Council Bluffs, Iowa; whiCh he consented that I may ask that the indefinite postponement of was read twice by its title, and referred to the Committee on the bill be reconsidered, and that the bill be recommitted to the Commerce. , Committee on Military Affairs. I do not see the Senator now in Mr. WASHBURN introduced a bill {S. 2320) to amend section his seat, but he said I might make this statement for him if he ~920 of the Revised Statutes of the United States, and for other were not present. I ask, therefore, that that be done. purposes; which was read twice by its title, and, with the ac­ The PRESIDING OFFICER (Mr. PLATT in the chair). The oompa.nying papers, referred to the Committee on Post-Offices Senator from Illinois asks that the vote by which the bill indi­ and Post-Roads. cated by him was indefinitely postponed be reconsidered, and Mr. SHERMAN introduced a bill (S. 2321) granting an increase that the bill be recommitted to the Committee on Military Af­ of pension to Jonas Deyo; which was read twice by its title, and fairs. By the unanimous consent of the Senate the vote by which referred to the Committee on Pensions. the bill was indefinitely postponed is reconsidered, and the bill He also introduced a bill {S. 2322) to provide for the erection will be recommitted. of a public building in the city of Findlay, Ohio; which was read REPRESENTATIVES OF GEORGE K. OTIS. twice by its title, and referred to the Committee on Public Build­ Mr. SAWYER. I wish to enter a motion to reconsider the ings and Grounds. vote by which the bill (S. 460) for the relief of the legal repre­ Mr. PERKINS introduced a bill {S. 2323) making appropria:­ sentatives of George K. Otis, deceased was passed. There was tions for fulfilling treaty stipulations with the Eastern band of f!.n error in the bill as passed. I do not care to have action upon Shawnee Indians; which was read twice by its title, and referred the motion now, but I merely enter it. to the Committee on Indian Affairs. He also introduced a bill {S. 2324) granting an increase of pen­ The PRESIDING OFFICER. The motion to reconsider will sion to James W. McMillan, late brevet major-general volun­ be entered. teers; which was read twice by its title, and referred to the Com­ NATIONAL BANKS. mittee. on Pensions. Mr. FRYE. I desire to offer an amendment to the bill (H. R. Mr. VOORHEES introduced a bill (S. 2325) granting an increase 5681) for the better control of and to promote the safety of national of pension to Serena J. Washburn; which was read twice by its banks, pending now before the Senate Committee on Finance. title, and referred to the Committee on Pensions. It is an amendment providing that national banks shall be pro­ M1·. MANDERSON. I hold in my hand several bills which_! hibited from paying interests on deposits. I offer the amen - propose to introduce that have had their source in the complaints ment byrequest. Ihavenotexamined thematterwithsufiicient which have come to many members of Congress with reference care to have or to express at any rate an opinion as to its merits to the gross swindle that seems to have its head in the city of now. I ask the Finance Committee to examin.e it with care. We New York, by which the country is flooded with circulars from do know that many national banks have recklessly run races to those who pretend to have counterfeit money for sale. It seems obtain deposits, the result of which has been disastrous. that to reach this very great evil, this crime in fact, there is no The PRESIDING OFFICER. The amendment will be printed law upon the statute book. I introduce a bill with the accom­ and referred to the Committee on Finance. panying letter from the chief of the Secret Service Division of the DEATH OF REPRESENTATIVE LEE. Treasury Department, and ask that it may be referred to the Committee on the Judiciary. Mr. BARBOUR. Mr. President, I desire to give notice that · / The bill (S. 2326} to prevent and punish persons for preparing on Friday, the 4th of March, at 3 o'clock, I shall ask the leave or instigating, or in any manner assisting in the preparation of of the Senate to take up for consideration the resolutions which a letter, or circular or handbill,. or pamphlet; or book, or any have come from the House of Representatives to this body in other thing intended to convey the impression that counterfeit reference to the death of William H. F. Lee, late a Representa­ money is being advertised for sale, etc.; was read twice by its tive from the State of Virginia. title, and, with the accompanying paper, referred to the Com- WORLD'S COLUMBIAN EXPOSITION. mittee on the Judiciary. . . . . The PRESIDING OFFICER laid before the Senate a message Mr. MANDERSON. I ~lso mtroduce t~~billsof hke rmport, from the President of the United States relative to the World's for refer:ence to the Com.m1ttee OJ?- the Judiciary. . Columbian Exposition; :; which was read, and, with the accom- The bil~ {S. 2327) to amend sectwn 545~ of the ReviSed S!-atutes l· panying papers, referred to the Committee on the Quadro-Cen­ of t~e '£! ruted. States to preve~ t and _Pun~h persons for willfully tennial (Select), and ordered to be printed. mutila~mg cOins was r~a;d twice by 1ts title, and referred to the The message is as follows: CoTIDmlhbtteille(oSn the J) udiOlary · . f "An .· . To the Senate and House of Repre8entatlves: e . · 2328 to a;mend sect~on 5 0 act authonzmg I transmit herewith, for the inf{)rmation of Congress, the annual report of the appomtment of receivers of national banks, and for other pur- the World's Columbian Commission, a supplementary report of the sa.m.e poses," was read twice by its title, and referred to the Committee Commission submitted February 16, 1892, the report of the Board appointed on the Judiciary by me under section 16oftheactof April25, 1890, to have charge of the exhibit . · . . . to be made by the Executive Departments, the Smithsonian Institution, the Mr. SHOUP mtroduced a bill{S. 2329) grantmg to the Uruver- Fish Commission, and the National Museum, and the report of the board of sity of Utah a site off the public domain; which was read twice lady ~anagers provide9- for by section 6of the act referred to. by its title and referred to the Committee on Public Lands The mforma~on fnrnished l;IY these repo;rts as to the progress of the work ' . . . • is not only satisfactory but highly gratlfymg. The plan and scope adopted Mr. VANCE mtroduced a bill (S. 2330) for the relief of St. and the site and buildings selected and now being erected are fully commen- John's Lodge Ancient Free and Accepted Masons, No.3, of New suratewiththena~nal ~nd international char~te': of the en~rtse con­ Berne N c · which wa-s read twice by its title and with the templated by the legiSlation of Congress. The Dlm01s corporation has fully ' · . ·' . ' ' . complied with the condition of the law, that$10,000,000 should be provided, and accompanymg paper, referred to the Committee on Clanns. the Government Comm..ission reports that" the grounds and buildings will Mr. ALDRICH introduced a bill (S. 2331) for the erection of a be themostextensive, adequate,andornateeverdevotedtosuchpnrpo.ses." ublic building in the city of Woonsocket R.I.. which was read Itse~ms, however, tha.tfromfiveto eight millions ~f dollars more w111, :In the P . . . ' . ' . . opinion of the local board and the National Commission be necessary to pre­ twice by Its title, and referred to the Committee on Public Build- pare the Exposition for a complete and successful inauguration. It will be ings and Grounds. noticed from the reports that ft was first proposed by the local commission BAYLESS w. HANNA. to ask of Congress a loan of $5,000,000, to be Yepaidfromreceipts, and that the National Comm..ission approved this suggestion. Subsequently the llllnois Mr. VOORHEES. Some weeks ago I introduced a. bill (S. E~sitionCo~rationreconsidereditsactionanddetermmedtoru>kasub- 8 0 2047) for the relief of the heirs and legal representatives of ~:S:p~l~en~ report of the National Comm..ission seems to approve Bayless W. Hanna, deceased, late envoy extraordinary and min.- this amended proposition. I have not myself that detailed information as \ ister plenipotentiary to the Argentine Republic, and had it re- to the financial necessities of the enterJ;>rise which would enable me to form rred to the Committee on Claims, which I am satlS•fied was not an independent judgment of the a.ddit10nal amount necessary, and am not, te therefore, prepared to make any specific recommendation to Congress upon he committee to which it should have gone. I ask that the bill the subject. The committees of Congress having this matter in charge Will ~y be recalled from the Committee on Claims and referred to undoubtedly obtain full and accurate information before final action. The Exposition, notwithstanding the lim.1tation.s which the act contains, is an t h o Committee on Foreign Relatipns. enterprise to which the United States is so tar committed that Congress 1384 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

ought not, I think, to withhold just and reasonable !urther ..support, if the Washington. The reason urged for such division was the sepa­ local cox:poration consents to proper conditions. Liberality on the nart o! the United States is due to the !oreign nattbns ration of Northern Idaho from Southern Idaho by a high range that have respondea 1n a. friendly way to the invitation o! this Government of motmtains which prevented business intercourse between the to participate in the EXJ)Osition, and will, I am sure, meet the approval ot our sections. It was in that controversy claimed that Southern Idaho people. The Exposition will be one o! the most illustrious incidents in our civic history. had all the advantages of appropriations, and being the larger, I transmit also certain resolutions adopted by representatives o! the Na· exercised all the• political power, creating great dissatisfaction; tional Guards o! the various States appointed by the governors to attend a but finally, when there came a prospect of creating a new Sta~ convention which was held in Chicago on the 27th o! October, 1891, with a view to consider the subject o! holding a military encampment at Chicago out of Idaho ·undivided, all parties ceased. the ·controversy and during the Exposition. favored the admission of the Territory according to its then ex­ BENJ. HARRISON. isting boundaries. EXECUTIVE MANSION, February U, 1892. But the controversy had raged so long and the natural divi­ ENROL.LED BILLS SIGNED. sion between the two sections was so permanent and the people A message from the House of Representatives, by Mr. T. 0. were tosuchan extentstrangers to each other thatthere still ex­ TOWLES, its Chief Clerk, announced that the Speaker of the isted a feeling which necessarily entered into their politics. It House had signed the following enrolled bill and joint resolution; was necessary to harmonize that sentiment and do justice to both and they were thereupon signed by the Vice-President: sections. The importance of such harmony was recognized by A bill (S. 1183) to extend the privileges of the transportation both political parties. They agreed in their conventions and put of dutiablemerchandisewithoutappraisement to the port of San­ it into their platforms that Northern Idaho should have one of dusky, Ohio; and the two Senators and Southern Idaho the other. That having A joint resolution (S. R. 45) to regulate licenses to proprietors been done, the election took pla{}e with a clear understanding of theaters in the city of Washington, D. C., and for other pur­ that it should be carried out. This wa.s something more than an ordinary pledge in a plat­ poses. SENATOR FROM IDAHO. form, because it had reference to a pending difficulty which had a real foundation. There is no intercourse between Northern The VICE-PRESIDENT. If there be no further morning busi­ and Southern Idaho except for political purposes, and both par­ ness that order is closed, and the Calendar undAr Rule VIIl will ties found it necessary to harmonize the difficulty existing by a. be proceeded with. · fair distribution of the offices. Mr. MITCHELL. I move that the Senate proceed to the con­ I am not one of those who regard pledges to the people as trifling / sideration of the contested-election case of Clagett us. Dubois. matters. I believe when any public man makes a pledge ·to the The VICE-PRESIDENT. The question is on agreeing to the people prior to election he is bound to carry out that pledge in motion made by the Senator !rom Oregon. good faith. I know of no greater political crime than to obtain Mr. PADDOCK. Mr. President, I had hoped that the Sena- office. by violating a solemn pledge to the people. Such a pledge • tor would withhold this motion to-day and ·auow the Senate to ought to bind every honest and honorable man. It is a growing proceed with the bill which was under consideration yesterday complaint throughout the country that politicians violate their and upon which I had the floor, with an uncompleted speech pledges to the people. It creates dissatisfaction, destroys con­ · when the Senate adjourned. I had expected to go ahead this fidence, and nothing is more prejudicial to good government morning and make further answer to the Senators on the other than a violation of pledges to the people. side who had spoken against the measure. But I understand There is no dispute about this pledge. It was deliberately, that the Senator from Oregon has made arrangements dating solemnly given, a compromise by which the votes of the people some time back by which the Senator from Nevada [Mr. STEW- were obtained. ART] is expected to speak to-day. · There was placed on file on the 27th day of February, 1891, the The VICE-PRESIDENT. Debate on the motion can only pro- affidavits of a majority of the Legislature stating how this pledge ceed by unanimous consent. . was made and how it was violated. Although that charge has Mr. PADDOCK. My speech is about finished, Mr.President. been made and has been on :file here for nearly a year, no attempt I only desire to say in conclusion that, under the circumstances, has been made to deny it, and no denial has come from any source; I feel constrained to make no further objection to the motion of and in considering this question, as I shall hereafter endeavor to the Senator from Oregon. show, the violation of this pledge was the leading cause of the Mr. MITCHELL. I desire to say a word in answer to the Sen­ disregard of the statute. ator from Nebraska. I should be very glad, of course, to accom­ Now, I ask the indulgence of the Senate to call attention to a modate him, but this report has been on the Calendar something portion of these affidavits as a sample of the understanding and over three weeks, I think, now, and it is but justice both to the the mode of its violation. I read :first the affidavit of eight mem­ sitting member and to the contestant that the matter should be bers of the Legislature who were for Mr. Clagett throughout the taken up and proceeded with to a close. contest: Mr. PADDOCK. There are two sides to that question, if the STATE OF IDAHO, County of Ada, 88: Senator will allow me. John A. Finch, J. S. Langrishe, J. F. Cameron, C. D. Porter, A. L. Scofield, The VICE-PRESIDENT. The question is on the motion made John Hanly, Ira S. Sperry, and Henry Armstrong, being tl.rst duly sworn, do by the Senator from Oregon. say under oath, each !or himsel! and not one tor the other, that we are all Republicans in politics and members of the present session o! the Legisla· The motion was agreed to; and the Senate resumed the con­ ture of the State o! Idaho, and all voted !or William H. Clagett !or United sideration of the resolution reported by Mr. MITCHELL from the States Senator at the election that was held in December, 1890, and again Committee on Privileges and Elections relative to the contested voted !or him at the second election held in February, 1891; that as among all o! the candidates be! ore the convention in December, Mr. Clagett was our seat from the State of Idaho. tl.rst choice. and we have supported him in both elections: that the !our Re· The VICE-PRESIDENT. The question is upon agreeing to publican candidates !or Senator, namely, Messrs. SHOUP, McConnell, Dubois, the first resolution reported from the Committee on Privileges and Clagett, all had their rooms. commonly called headquarters, at the Cap­ itol Hotel, in Boise City, and that these rooms all adjoined each otber. and Elections, which will be read. That during aU o! the preliminary arrangements prior to and down to the The Chief Clerk read the :first resolution, as follows: close o! the joint convention on December 18, 1890, being what was known and callea the original Clagett men, we were almost constantly at his head· Resolved. That Frederick T. Dubois is entitled to retain the seat he now quarters and consulted by him as to the various moves on the Senatorial holds as Senator !rom the State o! Idaho !or the !ull term commencing checkerboard, and were advised as to his actions and motives on every propo­ March 4, 1891. sition o! any special importance: that the two sections o! the State are di­ vided by a very high range of mountains known as the Salmon River Range, Mr. STEWART. Mr. President, this is a matter of grave running !rom eru~t to west, over which there is no regular means o! commu· importance to the State of Idaho, to the contestant, and to the nication,and that it is practically impossible to go from North to South Idaho organization of the Senate. The majority of the committee dis­ except by making a detour around throughtheStateson the eastor the west ofldaho; that this total separation of the two ends o! the State in all matters pose of the facts leadin~ up to the irregularities complained of o! business connection gave rise years ago to a proposition to annex North by denominating them 'minor issues." On page 29 of the re­ Idaho to the Territory of Washington, and that this agitation was kept up port I find the following: !or a period of many years, resulting in a very great alienation between the two sections, and especially on the part o! the old inhabitants 1n the northern An immaterial issue was raised in the hearing be! ore your committee, and portion o! the State. · both parties were permitted to argue it, inv~lvfug the good !aith of Mr. Du­ That when the Republican State convention met at Boise in August, 1890, bois and others in connection With certain resolutions in each o! the State it was deemed wise to draw the people o! the State together in bonds o! mu­ platforms of the two political parties in the State of Idaho in the campaign .tual sympathf and :3upport, and to that end it was proposed to insert a plank preceding the election of the first Legislature o! the State of Idaho, and un· in the Republican platform in favor of equal representation of the two sec­ der and in pursuance o! which it is claimed that one Senator should have tions of the State in the Senate of the United States. That a resolution to been chosen !rom Northern Idaho and another from Southern Idaho, the this efrect was reported by a minority o! the committee on resolutions, was State being thus geographically divided. debated at length before the convention, was adopted by a vote of 61 to39, and was then addea to the Republican platform as a part thereo! by the una.ni· It is well known to many members of the Senate that there mous vote of the Republican convention; that !our o! the five northerncoun· has been a long controversy pending between these two sections ties are Demoeratic in sentiment or exceedingly doubtful, but that in conse­ of the State of Idaho. Some years ~o the Legislature of the quence o! the feeling o! confidence which the insertion of that pledge in the Republican platform gave to the people, all five counties went Republican, Territory of Idaho petitioned for a diviSion of that Territory, and and sent solid Republican delegations to the State Legislature. asked that the Northern portion be added to the Territory of That when we reached Boise we !ound that Mr. Dubois and Governor 1892. CONGRESSION.A.. L RECORD-SENATE. 1385

SHOUP had formed a. combination to defeat the pledge upon which the party them, I will r..ead what the 8 Democratswho finally voted for Mr. had carried the State; that every eirort was made by us and by Mr. Clagett to induce the Republicans ot the Legislature to abide by the platform upon Clagett say with regard to their votes and to. their proceedings: which the State had been carried; that all ot our efforts were a failure, be­ STATE OF IDAHO, County of ..tlda, ss: cause it was impossible to separate Mr. Dubois and Governor SHOUP, or t<> ~duce or persuade either one of them to state that he intended to abide by Steven Dempsey, Green White, Edward S. Jewell, Frank Steunenberg, J. the platform of his party; that Governor SHOUP and Mr. Dubois together M. Ballentine, B. H. Smith, John Q. Dryden, and Isaac Irwin, being first duly had23or 24 votes, and onlylacked4or5of a majority; that between Mr. Dubois sworn, say under oath, each .for himself and not one for the other, that they and Mr. McConnell there was a deep-seated feeling ot hostility, and that Mr. are all members of the Democratic party and members of the present session McConnell declared over and over again that under no circumstances would of the Idaho Legislature; that we all, with the exception of Mr. B. H. Smith he ever form any combination or make any arrangement by which Mr. Du­ who had lett town at the time the same was signed, signed the protest of bois would be elected to the Senate as his colleague; that this hostility in part members forwarded to Washin~n against the legality of Mr. Dubois's grew out of the fact that Mr. McConnell, for reasons satisfactory to himself, election; that this protest was s1gned because we were persuaded that his had refUSed to submit himself to the direction of the Republican State com­ so-called election was wholly void. The facts and circumstances attending mittee in the campaign before the election, and although a Republican had that election were such as reflected no credit upon the State. When the con­ made an independent canvass of his own, calling his own meetings, and in current resolution passed the two houses that we would on Tuesday, Decem­ every way repudiating the political authority of the State committee; that ber 16, 1890, proceed to elect United States Senators, as provided by law, there this reeling or hostility, to our personal knowledge, was shared by many or was no law for holding an election at that time except to elect two Senators the supporters of Mr. Dubois. to fill existing vacancies as required by the constitution of the State, and it That on thenightot December17,1890, Messrs. SHoUP and Dubois took Mr. was universally understood by all the members of the Legislature that that McConnell into their combination for the purpose of securing the 4 or 5 votes election was limited to the election of the two Senators to till such vacancies. necessary to secure the election of the two former, and that 17 or the 18 sup­ It was with that understanding that we voted in favor of the concurrent porters of Mr. Dubois voted for Mr. McConnell, notwithstanding the re­ resolution, as we were required to bold said election within ten days from peated declarations of many of them ot hostility to him and that they would the organization of the Legislature; that the Legislature was organized on never under any circumstances vote for him. That prior to this combina­ the 9th day of December, 1890, and that the second Tuesday after its organi­ tion, on December 17, we knewfrommanysourcesthatGovernor SHOUP and zation fell on the 23d day of December, 1890; that after taking the separate Mr. Dubois were willing to form a. combination with Mr. Clagett on the ballot in the two houses on December 16 without a. choice being had, the joint same terms as wereafterwardsobtained by Mr. McConnell, namely, that Mr. assembly convened on December 17 pursuant to the concurrent resolution, Dubois should be conceded an election to the term beginn1.ng March 4, 1891, and the universal understanding among the members of the Legislature, as While Governor SHOUP and Mr. Clagett should be elected to fill existing va­ shown by their expressions on all occasions, was that the joint assembly met cancies, and dra.w for terms; that Mr. Clagett absolutely refused to accept to elect these two Senators only. The balloting on the first day in the joint any such terms, claiming that in case he should accept them the party assembly resulted in no choice. · pledge would be dishonored, inasmuch as after March 4, 1891, the question On the next day, December 18, when the joint assembly met, Senator Gunn as to whether North Idaho should have any representation in the Senate offered the resolution in the joint assembly to,proceed to fill the vacancy oc­ would then depend upon the mere chance of a. drawing instead of upon the curring March 4, 1891, immediately after the other two Senators should be tul1illment of a party pledge. And these amants do further say that from elected; that late on the night of December 17we became advised or the fact the whole tenor of Mr. Clagett's conversations with us, of a. confidential that Messrs. SHOUP, McConnell, and Dubois had formed a combination to elect nature we are entirely satisfied and know that he voluntarily accepted de­ themselves the next day, but we did not learn until a few moments before the I· teat rather than place his party in such a humiliating and defenseless position meeting of the joint assembly on December 18 what the programme was or and leave the section of the State in which he resided unprotected in its in· how it was expected to be carried out. 'l'hat the whole proceedings in the terests, as it would be in case he should be elected under the proposed ar­ joint assembly indicated a. cut and dried programme, and the rights or the rangement and draw the term ending March 4, 1891. minority were overruled, in spite of the fact that Senator Gray, acting as the We do further say that Mr. Clagett, from the time the electio-. was held spokesman and representative of the minority or twenty-five members ar­ in December~ always claimed that Mr. Dubois was not elected, and when in gued and protested against the election of the third Senator, for the reason · January the drawing for terms was had in Washington and Mr. McConnell that such Senator could not. legally be elected unt.il the second Tuesday after drew the term ending March 4,1891, thus depriving North Idaho of represen­ the organization of the Legislature. tation in the Senate, he suggested to us and to others that tbe only way to save That these amants are informed and believe that the reason why no con­ the party from dissolution in consequence of the repudiation of the party current resolution was oirered in either house to elect the third Senator at platform,was to hold another election and elect some one from North Idaho the same time that the others were elected was because such resolution could to succeed Wllliam J. McConnell for the six years beginning March 4, 1891; not have passed the senate, and that the action taken in the joint assembly t;bat in the second election Mr. Clagett was a candidate, but repeatedly stated to violate the law as to the method of electing the third Senator, and the time that if any pert'lon acceptable to the northern portion of the State could be for such election, was necessitated by the terms of the combination, which in found who could poll the same strength as himself in the Legislature he all human probability would have been dissolved if the election of the third would without hesitation gladly support him; that the second fight which Senator had been postponed until the time provided by law for such election. we and other Republican members of the Legislature made for him was And these a.mants aver and charge on knowledge, information, or belief that purely voluntary on our part, and was made for the purpose of redeeming as the election of Mr. Dubois was due entirely to the .violation of law by him far as possible the record of the Republican party on this subject. and others in bringing on the election ot the third Senator by action taken . JOHN HANLY. J. F. CAMERON. in the first instance in the joint assembly instead of in the two houses acting H. ARMSTRONG. J. S. LANGRISHE. separately, and in advance of the time fixed by law; that he owes his election A. L. SCOFIELD. JOHN A. FINCH. to such violation of law, and that without it he could not have been elected· C. D. PORTER. IRA S. SPERRY. that this statement of opinion and belief is based upon a multitude of cir: cumstances some of which are known to one, and others to others of these Subscribed and sworn to before me this 17th day of February, 1891. amants, whlch all tend to the conclusion stated above, and which call tor in [SEAL). JONAS W. BROWN, Notary Public. ~~~~s.a. thorough investigation on the part of the Senate of the United Mr. MITCHELL. Will the Senator yield to me for a question And these amants further say that during the session of the joint assembly, at that.point? on December 18, Senator Gray, acting on behalf ot the minority in such as­ sembly, in addition to objecting to the election of the third Senator for the Mr. STEWART. Yes. reason that it was in advance ot the time fixed bylaw, also objected that such Mr. MITCHELL. Admitting, for the sake of the argument,-and an election at that time was in violation of the resolution of the separate only for that, that all that is said in that affidavit and all that is houses calling the joint assembly together, and that such election at that tiree would be illegal for the further reason that no action had been taken said in the other affidavits that the Senator has now read or is thereon by the two houses acting separately, as required by the Revised Stat­ about to read is true, what possible bearing can it have, I inquire utes ot the United States; that on December 19, 1890, J. M. Ballentine, one of of the Senator, on the legal andconstitutionalquestionsinvolved these atnants, oirered an amendment to the journal of the house when the same was read upon that day, setting forth the reasons as stated by Judge in this case as to whether or not Mr. Dubois was or was not Gray as the ground for his protest and that of the minority, and asked that legally elected Senator from the State of Idaho? · the JOUrnal be amended accordingly; that such reqnest or motion was denied Mr. STEWART. Most important. by the house, which refused to place upon its journal such statement ot fact as was strictly according to truth, and that the amendment thus rejected Mr. MITCHELL. I should like to know how. but recorded in the journal as rejected, states the t.ruth relating to the o bjec: Mr. STEWART. It is claimed here that this was a mere tions made to the election of a third Senator on December 18 by Senator technical and incidental violation, and that the State ought not Gray. . tut. a program which was bad in morals, bad in politics, and in­ said in their report, that this combination to set aside an election JUrious to good government. that· had taken place did not occur to these parties until some Before I read the affidavits of the Republicans setting forth weeks after Mr. Dubois's election. particularly this combination, which was reduced to writing and Mr. STEWART. The committee have said a .great many which some of the persons signing it claimed was misread to things in their report which I shall refute and show the inac- 1386 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

curacy of. I shall beg leave that that sha.ll not ba taken as evi­ We do fUrther say that at no time prior to his election did Mr. Clagett ever in person solicit the vote or either one of us, nor did any friend of his in his dence here until it is verified by proof. Many things are said behalf, and that one of the reason we favored his election was because ha in that report which the committee took from counsel and which never attemJ)ted at any time to interfere with our perfect freedom of actioD they could not have investigated. I complain of that report, and as representatives of a. party opposed to his own. shall direct my attention to its inaccuracies. I do not think the And tm·ther we say not. JAMES M. BALLENTINE. committee has given its personal attention to some of these mat­ JOHN Q. DRYDEN. ters, but I think they were misled by counsel. ISAAC IRWIN. These affidavits we:re filed here on the 2'7thof February, 1891. B. H. SMITH. STEPHEN DEMPSEY. There was a protest filed here on the lOth of January, setting E. S. JEWELL. forth these same facts, which I shall hereafter call attention to. FRANK STEUNENBERG. / . But I was proceeding to read this affidavit. It appears when GREEN WHITE. Sworn to before me and subscribed in my presence by the above-named this joint convention, as they called it, when this assembly were Stephen Dempsey, Green White, Edward S. Jewell, Frank Steunenberg. J. collected together without authority, were in session and propos­ M. Ballantyne, B. H. Smith, John Q. Dryden, and Isaac Irwin, on this 7th day ing to elect a third s.enator, there were matters w~ch tended of February, A. D. IS9L to mislead them and mduce them to pass the resolution to elect [SEAL.] JONAS W. BROWN. the third Senator. I go on now with this same affidavit; it pro­ Notary Puhlic. ceeds: I will not weary the Senate with many affidavits, but I must call attention to one or two more. All the members of the Leg­ We do :tu.rther say that during the debate that sprung up on the introduc­ tion of the resolution otrered by Sena.t.or Gunn in the joint assembly for the islature who voted for Mr. Clagett have made affidavits stating purpose of carrying the resolution to its passage and showing that it wn.s the facts how this thing was done. I will read the affidavit of J. proper to elect the third Senator in ad:r-mce of the time fixed by law and C. Martin. There is a large number of affidavits going into this Without ta.klng a separate vote in the two houses., a dispat~h. Pll_!l> be elected. At the same time that this paper was being pre­ expected at any time that it was possible to elect a Democrat, and for this J>ared and signed in Mr. McConnell's room, another paper, as I was in­ reason, at th~ Senatorial election in .February, when Mr. Clagett was elected, formed, was being prepared and signed by the supportel'S of Mr. Dubois, 1n we were of the opinion as Democrats that we should stand together as a. the adjoining room, occupied by Mr. Dubois, and I saw the gentlemen who party, and that this attitude of the Democratic members was based upon a were known as Dubois men all gathering into that room for uch purpose. ca:ncus taken by them as a party in the Legislature, After we had signed the paper in Mr. McConnell's room, Mr. Brown took We do further say that at no time did we ever have with Mr. Clagett, or it out into the room of Mr. Dubois, from which he returned and told us that any one acting in his behalf, any understanding agreement, bargain, or con­ Mr. Dubois's friends had signed a paper, which as a friend of Mr. McConnell, tract of any sort whatever, but that our action 1':xi supP.ortinghim was purely he would not consent to; that Senator Shoup, from Custer County, a brother and solely because, first, we knew that it was impossible to secure a Demo­ of GEORGE L. SHOUP, refused to accede to the proposition to elan<; Mr. McCon­ cratic Senator, and, secondly, because we were of the opinion that his elec­ nell first, and insisted upon it that his brother should be elected first; and tion would redound to the interest of justice and right. that the paper which had been signed in Mr. Dubois's room was one that he We make this a.tndavit for the reason that we have heard thatit is reported would not consent to havethefriendsof Mr. McConnell sign; tha.tMr.Brown 1n Washington that charges have been made by Mr. Dubois and his friends then returned to Mr. Dubois's room and after awhile came back into Mr. Mc­ there that Mr. Clagett's election wa.s due to a bargain made between him and Connell's room and informed us that he had dictated a new paper for Mr. the Democratic members. Dubois's supporters to sign, and that they were then engaged in signing the

-' 1892. CONGRESSIONAL RECORD-SENATE. 1387

same, and that some of Mr. Dubois's supporters had lett for the night and North Idaho to draw a Senator; and when I found that this drawing, how­ th.ey were hunting them up to get them in to sign this second paper. The ever brought about, left us com~,>letely out in the cold, I was determined, if pa.peT written in Mr. McConnell's room, signed by his friends, and myself :possible, to still secure the prinCipal object of my coming to the Legislature, among the number, was destroyed, and we aft erwards, on the same night, m the election of some northern man, so that our local ihterests might be signed the second paper drawn in Mr. Dubois's room and stated by Mr. Brown protected and the good faith of the party kept intact. And further I say not. a.s having been dictated by him. J. C. MARTIN. The only difference that I remember between the two papers was 'that in­ Subscribed in my presence and sworn to before me by the said J. C. Mar- stead of electing Mr. McConnell first and then Governor SHOUP, it was changed tin on this 16th day of February, 1891. to elect Governor SHOUF first and then Mr. McConnell, and it was also under­ [SEAL.] JONAS W. BROWN, Nota1'1J Public. etood that we were to elect on the next day Governor SHoUP and Mr. McCon­ :pell only, and were to elect Mr. Dubois wpen the time prescribed by law Mr. MITCHELL. Will the Senator allow me at that point? $hould arrive for electing the third Senator. I did not read the paper signed Mr. STEWART. Yes, at any point. by Mr. Dubois's friends and then brought to Mr. McConnell's room and signed by us; the paper was read in our presence by Mr. Brown, and its purport was Mr. MITCHELL. Suppose that Mr. McConnell, instead of as I have previously stated, that Mr. Dubois was to be elected, not at that having drawn the third term, had drawn the long term, so that time, but when the time arrived prescribed by lawfortheelectionof the third we should have had a Senator from Northern Idaho as well as Senator. It was understood that Mr. Dubois was to take his chances on being able from Southern Idaho, what would he say then as to the election to hold the combination together until this time should arrive, and I for Ol,le of Mr. Dubois? Would it have been valid? l>elleved that it was utterly impossible for the combination to exist long: Mr. STEWART. No, it would not have been valid. cough to allow the second Tuesday after the meeting and organization of he Le ature to arrive. If it had been prop6Sed that Mr. Dubois should Mr. MITCHELL. Mr. Clagett himself seems to plp.ce the fact elecf!f immediately after the other two, I would not under any circum­ that he is here contesting upon the ground that Nortbern Iaaho !stances have gone into the arrangement. because I knew such election to be has been deprived of a Senator. ~ontrary to law, and also because, as a North Idaho man, I knew that if we elected the third Senator at the :oame time as the other two it would endanger Mr. STEWART. No, he does not do that. He places it on ~e result of my section of the State having any representation after March the ground that the Dubois election was illegal and that the 4, 1891. motive which induced the Legislature to hold a second election Mr. GEORGE. What was the date of that agreement? was that North Idaho was entitled to a Senator and by that ar­ ~r. STEWART. The date of the agreement was the night of rangement it was deprived of it. You ask me if the moral of the 17t1.; the election occurred on the 18th. this would have been otherwise if North Idaho had won in the Mr. MITCHELL. What is the date of the affidavit? game of chance? I say that no moral consideration entered into Mr. STEWART. That is not essential. I suppose that th~y the combination, and that had Mr. McConnell drawn the four­ could swear to the truth and ha¥ it made known afterwards as year term it would not have changed the political immorality well. I do not think there is anydoubt about that. Nobody has of such combination. ever denied that combination. It was in writing, and several of Mr. MITCHELL. I am not talking about the morality of it. the parties say they did not understand it the way it was read; I am talking about the legality. and then there was brought to bear, as they stated, the influence Mr. STEWART. The legality would have been unchanged of these telegrams, and they got two or three votes of men who and the moral of it would have been unchanged. Because a man had been misled by the telegrams, and rushed the election wins at a game of chance, does that therefore make it the less through. gamblingr They had no right to enter intosuchacombination. Mr. GEORGE. Werethoseagreementsreferred to made after Mr. Clagett stated in the ·correspondence, whjch is here, that he the election held separately in each house and before the election would not make any combiaation or arrangement that would take finally resulted in the completion of the whole thing? a chance of violating the platform, because his proposition was Mr. STEWART. They voted separately in the two houses to carry out the platform in good faith; and in the correspond­ on the 16th. Then on the 17th they voted in joint assembly. ence here on file he proposed that they first elect two Senators, Mr. GEORGE. And failed to elect? as provided by the constitution of the State and the law of Con­ Mr. STEWART. Andfailed to elect. gress, and then when the drawing was had here for terms to elect Mr. GEORGE. And on the night of the 17th they made this the third Senator, and elect him from that section of the State agreement? that had drawn the short term, and in that way the pledge in the Mr.STEWART. Yes. . platform could surely be kept. He would not make any other Mr. GEORGE. And the next day they carried out the pro­ al'rangemeilt; he would not gamble away the party platform or gramme? the interests of his section. · ' Mr. STEWART. And the next day they carried out the pro­ Mr. GEORGE. I should like to ask the Senator a question. gramme. But I return to the affidavit of Mr. Martin: The PRESIDING OFFICER (Mr. JoNES of Arkansas in the The above is the understanding which I and other supporters of Mr. Mc­ chair). Does the Senator from Nevada yield? Connell who signed the~,>aperhad, and we never had any 1deathatit was con­ Mr. STEWART. I do. templated to elect the third Senator immediately after the two vacancies were Mr. GEORGE. I was listening to the account given by the filled, until Senator Gunn o:t'fered the resolution to that e:t'fect in the joint as· sembly on the next day, December 18, 1890. I was taken completely by sur­ Senator from Nevada as to the conduct of the Republican party prise by this resolution of Senator Gunn, and when Judge Gray, in the joint in the State of Idaho. I want to know of the Senator if I am convention, otrered his substitute to limit the election to the two Senators right in the impression which I got from the reading of the affi~ only, I voted for it, and voted against the passage of the resolution, and in favor of the motion to adjourn after the election of Mr. McConnell. davits of the Republican party-a party I have sometimes heard After the second motion to adjourn was voted down and the joint assembly called the party of God and morality-that that party deliber­ pro~ded to vote for the third Senator, I voted for Mr. Dubois because the ately put in their platform· adopted by a State convention a previous votes on the substitute and the adjournment showed that we could not prevent the third Senater from being voted for at that tilne, and I did not solemn pledge to the people of Idaho that they would give one look upon the vote as amounting to anything, for the reason that this election Senator to Northern Idaho and one Senator to Southern Idaho; was manifestlf illegal, as I believed, on account of its violation of the acts of also that upon that pledge the State was carried for the Repub­ Congressrelatdn.gtotheelectionof aSenatortofillafUturevacancy; andeven then I would have voted for Mr. Clagettinstead of Mr. Dubois for this third lican party, and without that pledge it could not have been car­ term, because of the trickery which had been practiced upon me and other ried by that party. If that be so, what I wish to know is if after friends of Mr. McConnell in the Legislature in bringing on this election in vio­ all that the Republican party could deliberately violate their lation of law, it I had pot known that my vote, and others also who were in favor of Mr. Clagett, could not change the result. pledge? Was that the amount ofit? I do further say from the facts above stated, and from all the circumstances Mr. STEWART. These candidates did it, there is no doubt attending and surrounding t;he so-called election of Mr. Dubois, that he owes about that; and the Republican party carried the State because it his election, it elected at all, to a palpable violation of the laws of the United States, and that without such violation he could not have been elected; from came out firat with that in its platform. my knowledge of the hostility existing between Messrs. McConnell and Du­ Mr. GEORGE. Did not the members of the Legislature join bois and many of their respective supporters, I am entirely satisfied that had in that? the agreement been carried out to wait until the time came around prescribed by law for electing the third Senator, that long before this time arrived the Mr. STEWART. The candidates got a majority; .and several combination would have dissolved by its own inherent weakness, and it was of the members who voted for it and made this majority of two because or this knowledge evidently on the part of Mr. Dubois that they either or three have explained that they were taken by surprise, and changed the programme after I and other of Mr. McConnell's friends had signed the paper, or else he had deliberately obtained our signatures by false did not understand what they were doing; that they were mis­ and fraudulent representations made to the effect that he was willing to take led, and did not have any time to consider their action, and that his chances of holding the combination together until the regular time pre­ it was sprung upon them. scribed by law for electing the third Senator. I do further say that when Mr. McConnell drew the term ending March 4, Pretty good men may do wrong in a mob like that and may get 1891, and that had come to pass which I had always feared, that after that their votes wrong. They are not all bad men. They rectified date North Idaho would be without a Senator, and the platform of theRe­ the wrong as soon as they got an opportunity, and a majority of publican party was dishonored, believing as I did that the interests of my State and the preservation of the good faith of the party were of paramount the Legislature voted in separate houses for Senator, and then 1mportance to all other considerations, and further believing that Mr. Dubois went into joint convention and elected Mr. Clagett. That is the had not been legally elected, when it was proposed to hold a. second election will of the State, and that is according to the platform of the for a. Senator to succeed William J. McConnell, I supported the-movement, and voted for Mr. Clagett at all stages of the contest. two parties. That is honest; that is not trickery. The other To summarize the whole matter, I came to Boise to get equal representa­ was a combination in writing to spring it on the night of Decem­ tion in the Senate for my section of the State. On account of the combina­ ber 17, after they had voted one day in joint assembly without tion between Messrs. SHOUP and Dubois, it was impossible to get it as it was pledged, and I was forced to take the step that I d1d in order to get the only giving anybody a majority. Who ever heard of such a proceed- thing that was possible, as it seemed to me at that time, namely, a chanoo for ing as that before? , 1.388 " CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

Mr. GEORGE. If the Senator will allow me, I wish to inter~ been unlike in the di1!erent States. In my State we have always elected by joint convention; we never had separate action in each house· but out of rupt him here on a point that I regard as more material than the deference to the practice ~hich has prevailed, I think in most' ot the New one I interrupted him on just now. I have listened to the Sen~ England States, and also m the State of New York of voting in separate tor with some interest, and I wish to know ii this is the fact as houses, it was thought better, as no evil could result f;om that. to adopt that plan for the election of Senators; but in case that !ailed, to provide that the developed, that no separate proceedings were ever had in either two houses should then come together and make an election. house of the Legislature looking to the election of this third The public interest requires that each State should be represented in the United States Senator? Is that the fact? Senate o! the United States, and it may sometimes happen that the two branches of the Legislature are o! difterent politics and then will not meet Mr. STEWART. That is the fact as to the election of Mr. Du­ together to elect a Senator. We think the public interest is not subserved bois. "!lY leaving a State unrepresented; the intention of the Constitution is that Mr. MITCHELL. That we deny, as far as the majority of the 1t should be represented, and it is for the public good that we should have a committee is concerned. ~f~~at will produce uniformity in these elections and secure representa- Mr. STEWART. I will show that it is the fact. That I am coming to. I have not come to the law of the case yet The evil to be avoided was the refusal of one house or the Mr. GEORGE. Is it the fact that no separate proceedings other to pass a resolution creating a joint assembly. A joint were had in the houses in reference to it? assembly, though composed of members of the Legislature is Mr. STEWART. None. no more than if it was composed of men from the street a~y­ Mr. GEORGE. Now, is this a fact, that the two houses took where unless it is created by some law. The joint assembly their vote for Senators on the 16th separately, according to the he;e.w:as created by no law, by no resolution. No law created statute? thiS JOmt assembly for this purpose. The joint assembly was Mr. STEWART. Yes. not created and the law could not operate I claim until they Mr. GEORGE. And failed to elect? h~ ~ctually complie~ with its terms, or attempted' to comply Mr.STEWART. Yes. w1th 1ts terms. If ?-e1ther house wanted to go in, no convention Mr. GEORGE. They then met on Wednesday, the 17th, and could be held; but if one house voted for Senator and the other took a vote for each Senator? house.r~fused to vote, then the law provided that there might Mr. STEWART. They took a vote for one Senator. be a JOmt assembly to complete the work. But it was never Mr. GEORGE. For one Senator? . intended to create a joint convention where both houses refused Mr. STEWART. Yes. to act. However, I shall come to that later. Mr. GEORGE. And failed to elect? Mr. MITCHELL: I ask the Senator if the very question that Mr. STEWART. Yes; failed to elect. we are nowdiscussingwaq not decided by the Senate of the Uni­ Mr. GEORGE. And up to this time they were all proceeding ted States in the case of Gilbert, from Florida? on the idea that no election would be held for the third Senator? Mr. STEWART. No. Mr. STEWART. That is stated in the affidavit of all of them Mr. MITCHELL. And, furthermore, was it not decided again and the proceedings show it. There are twenty-eight men all on the report made by the Senato1' himself in the case of Flan~ swearing that they were proceeding on that idea. gan and Hamilton and two other contestants from Texas? Mr. GEORGE. On the night of Wednesday, after they had Mr. STEWART. No; it was never decided in that case. It made this failure, then these contracts or agreements were re­ was neve; raised. I was upon the committee in both those cases. duced to writing, and then the next morning a resolution was In the Gilbert case the people organized a State government by introduced to go into the election of a third Senator, and that forming the constitution, elected a Legislature, and proceeded was the first time, so far as the record shows, that any resolu­ to c:lect Senators before t~e. act of Congress was passed· rehabili­ tion had been proposed to go into an election on that day for the tatmg the States or adm1ttmg the State on the reconstruction third Senator. . plan. I wish the Senator to pay attention to this point because Mr. STEWART. There had been a motion made in one house. I want to enlighten him. The main contention in that'case was Mr. GEORGE. But not passed. that the .state, not having been admitted by an act of Congress Mr. STEWART. There had been a motion to elect a third had no r1ght to elect Senators. That was th3 main contention' Senator, but it was almost immediately withdrawn. This was but in that case the Legirllature had failed to take a vote in th~ six days before the election. . two houses separately. Mr. GEORGE. Bt:lt it was not passed. No objection was made, however, to that on the hearing, be­ Mr. STEWART. It.was not passed. It was withdrawn. It cause the two houses had passed a resolution to go into a joint was merely put in by one of the members. ~ convention for that purpose. That action of the two houses cre­ Mr. GEORGE. Then I call the Senator's attention to this as ated a joint convention. It was created by the State. Nobody a principle of law, ii it meets his approbation, that this joint made any point on it, and it was no·t insisted upon that they had convention, which was the result of the failure to elect under not voted separately. The senate was not called upon to pass the statute on the 16th, was a convention of a special jurisdiction upon it, and did not. having no other power than that named in the statute, and that In the casa of Hamilton, of Texas, that question did not arise was to vote for the Senators for whom they had voted before and because the two houses there voted. The only question thai about whom they had failed to agree. arose in that case was that the State had not been admitted to its Mr. STEW ART. I have no doubt but that is the law. !thad :elations to the Union at the time the electiqn took place. But no more jurisdiction to elect, as I shall go on to show, than any m both cases the Senate held that the subsequent admission re­ number of men at a meeting anywhere. Thefactthattheywere lated back and cured all the defects. That is a correct statement members of the Legislature did not make them a legal body. of those cases. They were unknown to the law entirely when they commenced Now, I wish to call attention to the law governing the election and proceeded upon this basis, as I shall proceed to show. ' of the United States Senators in the State of Idaho at the time Before I proceed to the question of organization and the stat­ of that election in December, 1890. The constitution of the ute I wish to call attention to the law. I was on the Committee State provided that- Within ten days after the organization oft.he Legislature both houses of the on the Judiciary when the law was prepared and Mr. Trumbull Legislature shall then and there proceed to elect, as p-:-ovided by law two was chairman. Mr. Trumbull, as the organ of the committee, Senators of the United States for the State of Idaho. At ~aid election the stated the reasons for the passage of the bill, and his speech two persons who shall receive the majority of an the votes cast by said sena­ tors and representatives shall be elected as such United States Senators and throws considerable light upon the construction 6f the statute, shall be so declared by the presiding oftlcer of the said joint session. ' The particularly upon the construction of that portion of it which re­ presiding oftlcers of the senate and house shall issue a certificate to each of quired a vote to be taken in the separate houses. I read from the said Senators, certifying his election, which certificate shall also be signed Congressional Globe, Part II, first session, Thirty-ninth Con­ by the governor and attested by the secretary of state. gress, 1865-'66, page 3727: Congress approved of that, and in the twentieth section of the act admitting Idaho Congress provided: . · I will say further, that the committee were unanimous in I'egard to this bilL It is a bill the want of whichhasbeen!elt ever since I have been a mem­ That the Legislature of the said State may elect two Senators o! the United ber of Congress whenever a contested election has arisen; and such cases States, as provided by the constitution o! the said State; and the Senators have most !requently arisen out of the difflculty of the two houses o! a Legis­ and Representatives of s_aid State shall be entitled to seats in Congress, and lature meeting together. It has always been considered desirable that Con­ to all the rights and pnvileges of Senators and Representatives of other gress should pass some law on the subject, and I think the Judiciary Com­ States in the Congress of the United States. fuittee, of which I have been a member for the last eight or ten years, in dis­ That was the law lmder which the two Senators were to be cussing this matter have alwafs agreed that it was desirable that Congress should pass-some law on the subject and avoid those contests that arise from elected. Now, when the two were elected that law was exhausted. the fact that a factious opposition in one branch of the Legislature or the There could be no pretext that Congress intended to make that other sometimes prevents the two houses from meeting together. a permanent law for the filling of all vacancies thatshould there­ Several occasions have passed by and it ha.s remained, until another occa­ sion recently arose to ca.ll attention to the subject. Then some member of after occur. That can not be claimed. the Senate, I think the Senator !rom Oregon [Mr. Williams) introduced a Then the election of the third Senator necessarily came under resolution instructing the Committee on the Judiciary to inquire into this the general law. Jt came under this section which is exactly de- matt-er, a.nd this blll was prepared in consequence of that resolution which went to the committee. It is impossible to make it conform exactly to the scribed here, section 14 of the Revised Statutes: . practice which has prevailed in the several States, because the practice has The Legislature of each State which is chosen next preceding the exptra-

·I 1892. CONGRESSIONAL RECORD-SENATE. 1389

tion ot the time tor which any Senator was elected to represent such S~te ted for the sake of the argument that he formed part of that ma- 1n Congress shall, on the second Tuesday after the meeting and organization thereof, t>roceed to eleot a Senator in Congress. chinery. - Then a very important resolution was passed after they adopted I will consider the point made by the Senator from New Hamp­ the rules of the former house requiring. the oath of office to be shire hereafter. I trunk he will find that a two-edged sword. administered to the officers elected: I am going now to answer the position taken by the majority of Mr. Brigham moved that the president appoint a committee of three on the committee. The majority of the committee claim that Mr. organization to designate and determine the number and order of omces to Dubois was elected under this provision. That is the position. be filled by the senate. I shall show that there is nothing in it, and if he was not electe.d This is all that occurred on Monday, the day that it is claimed under this provision he was not elected at all. the organization was perfected, except to swear in the members. Mr. MITCHELL. The committee claims that the fa~ts sur­ The members were sworn in, and this was all the proceeding rounding and connected with the election of Mr. Dubois are of taken-a resolution adopting the rules and a resolution appoint­ such a character that if an election could take place legally ing a committee to designate the number and order of the offices under either one, that is, under the constitution of the State and to be filled. Then on Tuesday the report came ·in. the enabling act on the one hand or under the Revised Statutes Mr. President: We, your committee on organization appointed to desig­ on the other, then his election would be legal, and that is suffi­ nate and determine the number and order of the o1Hces to be filled by the senate, ask leave to report as follows: cient. " 1st. President pro tempore of the senate. Mr. STEWART. I suppose the Senator means by that that he ·• 2d. Secretary of the senate. was a citizen of the United States, having baen a resident nine •·3d. Assistant secretary of the senate. ·'4th. Engrossing clerk. years, and was over 30 years of age. '·5th. Assistant engrossing clerk. Mr. MITCHELL. I mean a great deal more than that, as the ''6th. Enrolling clerk. Senator will understand. " 7th. Assistant enrolling clerk. " 8th. Two pages. Mr. STEWART. There is nothing more than that in it, and " 10th. Doorkeeper. I shall show when I get to that that there was nothing surround­ " 11th . .Janitor. ing the facts to show otherwise. If he was elected at all under '·12th. Chaplain. that law there was no surrounding fact but what I am about to " Respectfully submitted. allude to. I am aware that the committee understand the weak­ ".J. W. BRIGHAM, Ohairman." ness of their position and want to fall back on some imaginary Then they designated the office of secretary of the senaw to cases, but I will examine the pin-hook point of no law applying be filled. Still it is said that they wera organized. Did the senate before I get through. I wish now to confine my consideration to regard itself as organized? Did it consider the office of secretary the proposition that the Legislature was not organized until Tues­ was already filled when it appointed a committee to report what day, the 9th of Dacember, and that the election of Mr. Dubois, if offices should b3 filled and the committee reported the office of regular in every other particular, is void because he anticipated secretary should be filled? Did it attempt to do anything? Did the time. The time being anticipated that is sufficient to avoid any legislative body in America ever recognize any business as the election. bemg in order pending its permanent organization? The sen­ If there is any proposition on earth that is certain, it is this. ate appointed a committee on organization to determine the offi­ There is not a shadow of a pretext for pretending, in my judg­ ces to be filled, and to say that it was then organized, within ment, that that Legislature was organized on Monday. The the judgment of that senate or within the rule of any legislar Legislature did not so regard it; nobody so regarded it; it is an tive body that ever existed, is too absurd :for argument. It is afterthought, one of those attempts to patch up a bad case. brazen effrontery to claim it. _ Now we will examine what occurred on Monday first, because In the organization of the two bodies it is agt·eed by both the the majority report in its statement of facts in the beginning majority and the minority of the committee that the two houses does not state all that occurred. On Monday the persons com­ are the exclusive judges of their own organization, and that they have a right say what shall constitute such organization, and posin~ the senate met. After they had met and before the proc­ to lamatiOn of the governor was read or anybody knew who were what they say is supreme; and that the Senate of the United the senators and who were the bystanders, Mr. Gunn moved that States can not determine that question for them. The two houses M. C. Athey be elected secretary of the senate pm tempore. Re­ have a right to say what offices they will have. That is admitted; member that it wasonot a senate at that time. Nobody was ·en­ and it ia granted in the constitution of Idaho, to which I have titled to vote. They did not know who were ihe senate; they called attention, and it is admitted in this report. I read now had not been called or sworn. Mr. Gray got up in the ordinary from page 3 of the majority report: The house, therefore, was possessed of the inherent and exclusive power way to commence proceedings and moved to have somebody as not only of electing its own omcers but also of determining the number and secretary pro tempore. kind of omcers to be elected. They called in Mr. Athey. Whether Mr. Athey acted on that That is the majority report. They were the exclusive judges. day or not does not appear from the journal. After this was done Then again on page 16 of the report the majority say: the president then read the proclamation of the governor con­ Inasmuch as each house of the State Legislature has the right to determine vening the Legislature of the State of Idaho at Boise City the as to its own organization, as to the number and kind of organs it shall have 8th day of December, 1890. to represent its action, record its decrees, and aid 1n the transaction of its The president of the senate then called the roll of members as certified by business, etc. the secretary of state, and the following-named gentlemen responded to This is the majority report. The minority report is equally their names. explicit in ascribing to each house the exclusive right and juris· It would have baen the duty of the secretary in ordinary cases diction to determine its own organization. The minority report to call the roll, but this man who had been designated before there states: was a senate at all did not assume even to call the roll. The The Constitution of the United States provides that Senators shall be chosen president of the senate, who was the lieutenant-governor, called by t.he Legislatures of l>he States, resP.ectively, and grants to Congress the power of regulating the " time " and ' manner" of so choosing them. The the roll, and so far as the record of the first day is concerned act of Congress of .July, 1866, has fixed the time for initiating the proceedings there is nothing but the signature of Mr. Ath~y signed the next for such choosing as the second Tuesday after the meeting and organization day in making up the proceedings to show that he acted as sec­ of the Legislature next preceding, etc. Clearlythedutyimposed by.the Con­ retary. stitution is upon a lawmaking body; upon that department of the Govern· ment having the legislative function; and when the act speaks of the organ­ Then what occurred? Mr. Gray moved that the rules of the ization of that body, it must, by every I'easonable intendment, mean that legislative council of the fifteenth session be adopted so far as systematized arrangement of constituent and independent parts, or organi· zation of each house, which by the determination of each house shall be ap­ consistent for the regulation of the senate until the report of the propriate and necessary for the discharge ofits legislative !unction. committee on rules be adopted, and the motion was carried. What stage, or degree, or kind of organization may be appropriate and The fiftieth rule then adopted required that- necessary for this purpose is not for the Senate of the United States to de­ cide. That must belong to the two houses, respectively, of the Legislature, These omcers- and is necessarily exclusive. That is, officers of the senate- There is no doubt about that. Then will anybody say that the These omcers shall severally take an oath truly and faithfully to discharge the duties of their omce. senate which met together and appointed a committee on organ­ ization and adjourned for that committee to come in and report No oath was administered to Mr. Athey or anyone else on that had decided that it was already organized then? Did they mean day. . to say that they were then organized, or did they mean to say Mr. MITCHELL. The oath was administered to all the mem­ that they appointed a committee to be organized? Is it a con­ bers of the senate. tradiction of terms to say that the senate determined on the 8th Mr. STEWART. Yes, the oath was administered to the mem- of December that it was organized. Both sides admit that it ·bers, but not to Mr. Athey. That rule does not apply to mem­ was in the power of the senate to determine, and it determined bers of the senate, but to the officers of the senate. So he was as clear as language can make it that it was not organized by not sworn in. As far as the record is concerned it does not ap­ providing a committee to perfect an organization. pear that he acted at all, though they say he did, and it is a~mit- There is something in this State constitution which I think 1390 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24, has a further bearing upon the question of organization. Ar­ Mr. MITCHELL. I said the 6th of February, but I meant the ticle 3, section 9, says: lOth of .January. I had reference 'tio the 10th of January. Each house when assembled shall ehoose its own o:m.cers, jud~ of the elec­ Mr. STEWART. Of course this protest musthave been made tion. qu.aJ.iftcations, and returns o:tits own members, determine J.ts own rules of proceeding, and sit upon its own a.djourmnents; but neither house shall, long before that time in Idaho. It was tiled here on the lOth 'Of without the concurrence ot the other, adjourn for more than three days, nor January, and the remonstrance 'States here 'the reasons why Mr. to any other place than that in which it may b~ sitting. Duboiswasnotelected. Thereare twenty-three who signed this, Then it says in the second clause of the tenth section of this as reputable men as there are in the State of Idaho or anywhere article: else. Now what do they say: A quorum being in attendance, if either house fail to e:trect an organization P.ftOTEST AGAINST THE ELECTION OF THE RON. ron. T. DUBOIS TO THE Within the fl::rst four days thereafter, the members ot the house so fai.linJ:1: SENATE OF THE UNI'r.ED STA.TES FOR THE ST.A'l'E OF IDAHG. sha.ll be entitled to no compensation from the end of the said !our days until We, the undersigned, members of the first session of th-e Legislature o:fthe an organiza.tion shall have been e:trected. State of Idaho, respectfully protest against the admission of the Hon. Fred. What meanmg· and e:ffect would such a provision have if get- ·T. Dubois to a. seat in the Senate of the United States as Senator from the State of Idaho, tor the term beginning on the 4th·d-ay ot March, 1891, on the ting together and appointing a committee on organization wa.s ground that he has not been Legally elected such Senator, and in support understood to be an <>rganization? Of course the constitution thereofwerespectfullyshow; -1..:1 • d be ad f b · d (1) Thatthsfirstsessionof itheLegislatureottheState-ofidahowasoon- meantth a t they 'S h Ow.u. organ1ze an re Y or iUSl.ness, an veued a.t the capitol of the State at 12 o'clock m. on Monday, the 8th da.y of should not be paid for it if they were fooling away their time. December, 1890, by proclamation of the governor of the State. But stress was laid in that constitution upon a bUBiness <>rganiza- (2) That t.llf senate did not organize on Monday, December 8, 1890, and was . d th Le · 1 tu ded •th -11 bl tch not organized until Tuesday the 9th day of December. 1890, on which da.y t IOn, an e giS a reprocee · Wl .w. reasona e a·ISpa fortheftrsttimeitorga.nizedbytheetectionofa.llitsotncersexceptthepre- the first day to initiate the proceedings for such organization. siding o:tllcer who is designated by the constitution, and on th&t day sent Mr. VANCE. Who is to judge of that organization? ~~~~Jif~t~et:;e~~~\~~-its organization to the other branch oU.he Legisla.· Mr. STEWART. Both the majority ·and the minority of the (3) That thereafter, on the 13th da.y of December, J890, a concurrent reso- committee say that it is the two houses acting separately. The lntion was passed by the senate to the e1fect that the respective houses or the constitution of the State _says so and all the precedents that have Legislature would proceed ou Tu'8Sda.y, the 16th day of December1. ro &l.ect ever been established recognize it. It is one of the inherent at- ' United States Senators, which .resolutiOn was concurred in l:Jy the n.ouse G't ~ ~.- tr1butes· 0.1 1eglB · 1 at1ve · cJ..uuCtions· t h at t h e h ouses s hall h ave t h e representatives.(4) Tha-t on Tnesday, December 16, being the first 'l'uesday a:rter the 'Dr· power to determine when thev are organized and to .say what ganization of the Legislature, as above stated, each house of the Legislature · t'l! Th . •~ afte •t had voted for the election of one United States Senator and adjourned. 13 h a.ll cons titute. sueh organiZa lOll; e sena~, r 1 or- 'Onth. e. nextda.y, Wednesday, December17,1890, thetwohousesmetmjotn-t ganlZed on the second day by electmg these officers, d~lared that assembly, and the journals of each house being read~ it was shown ~at. no it was urganized by the election of those officers. Before that , :pe:son ha.d received a majority of the votes cast m either house, :and the tiine it was not organized and no business was in order. JO~t assemb~ t~en proceeded to vote for one Senator.. and no person re- ·u th S to ti ? ce1ving a. maJOrity of the votes cast, the joint assembly a.djou:rned'to meet M r. MITCHELL. W 1 e ena r .answer me a ques on. thenextday. Mr. ST-EWART. Oh, certainly. (5) That the two houses oi the Legislature mettor th~ second time mjomt Mr MITCHELL Could that Leo-il'llature have enacted a law assembly on Thursday, the 18thda.yo!December.1890 a.ndbyresolutio.npro- . · o- . · ceeded to elect two Senators to fill the existing vacancies for the State 'Of on Monday that would have been a valid law? Idaho, after which the joint assembly immediately proceeded, aga1Ilst 'the Mr. STEW ART. Certainly it could if it was organized. protestofme~berspresent,whoobjectedtherewbeca.usethejointa.ssembly ' dmit - had no legal nght so to do 1llltil the second Tuesday after organization of tbe M r. MITCHELL. . · Then the S enato _r a ~-- . Legislature (toelectaSenatorforthetermcommencing on the 4th day 'Of Mr. STEWART. No, I do not adnut anythmg of the kind. M.ar<'h, 1890), a.n.d the Ron. Fred T. Dubois was declared elected. Mr. MITCHELL. The Senator'Mmits that the Legislature · Andyourp:rotestantsrespectf~yshowtha-tsaidpretendedelectionwa.shad was organized sufficiently to enable it to pass laws? before the second Tuesday aft& the organization of the senate. to wit, the . . · 23d da.y of December, 1890. Mr. STEWART. I do not adnut It. That neither house of the Legislature had voted ror or named any person Mr. MITCHELL. I 'SO understood you. as Senator for said term, as required by ehapter 1 of Title n -of th.e Revised Mr STEWART 1 do not admit it sir I sav they could have Statutes ot the United States, and the election of a Senator :tor said term, :. • J • :J beginning March 4, 1891, had never been agreed to or considered favorablY by done 1t. either houseof the Legislature, but was first resolved upon in thejo.intassem· M:r. MITCHELL. That admission is made, I understand, by bly convened for ~he election ot Senators to fill t~e exi:stiug vacancl.es, and Mr Clagett himself. ~s proceeded with against the protest and obJection .of members of the . STEWART If th h d ad d ti th t th Jomta;ssem'bly,onthegroundtha.tsuchelectionattha.ttimewa.snotauthor· M r. . ey a m e a ec1 ara on a ey ized bylaw. were .organized and ready to proceed with business-if they had Your protesta.I?-ts therefore pray that ~e Hon. Fred T~ Dubois be not ad- ade a declaration to that effect they could organize on that day mitted to a. seat m the .Senate of the Uruted States as a Senator from the m . ' .State of Idaho. if they pleased. But they did not do so. They could have or- Johns. Gray, president pro tempore of the senate; .J.R. DeLam&r, ganired by electing a single officer and then proceeded to busi- ' J . .s. Langrishe, John Hanly, Goo. w. Emery, James F. Cam· ness · eron, A. L. Scofield, Carey D. Porter, Joseph Hawkins, James · . . . M. Ballentine., Frank Steunenberg, H. Armstrong, H. M. Oasey, Mr. MITCHELL. The question, I subnut, lS not what they .J. Q. Dryden. w. H. Smith, J. c. Martin, E. s . .rewe}.l. Isaac declared, but what did they actually do? If the;y: did that which Irwin, E. w . .Jo:nes, Stephen Demp.seyJ Green Wh.1.te. Ira s. was .sufficient to ~ustily them in passing a bill that would have Sperry, Wm. Wmg. . been a good iaw if passed, then I insist that they had a right to This was filed here on the lOth of January. There was not elect a United States Senator. much delay about it. Thetwenty-threemenstate that theypro- Mr. STEWART. Who was to determine when theyhad done tested at the time that Mr. Gray raised this point, a.nd 1twas that which was sufficient? Who was to determine it? The one of the points they tried to urge to prevent them from pass­ Legislature. Did the Legislature determine that it had organ- ing a resolution to go into the election of a third Senator. Talk ized? about delay; they have been protesting against it from the be· Mr. MITCHELL. It did, because it elected a Senator the ginning. It was conceived in a conspiracy and opposed as soon next Tuesday after that. as the ·conspiracy was developed by the resolution on the 18th Mr. STEWART. Ahl 'There is yourmobagain; thatusurp- day of December, offered by Gunn in the joint convention. ing body, that body that was carrying out the behests of a .com- Mr. MITCHELL.. The Senator will admit, because he desires bination, made that declaration among other faLse declarations, to be fair, I take it, that so far as the journal of that Legislature but the Legislature never determined in 'Separate houses, it is concerned there is nothing in it on that point from beginning neverpretended, thatitwasorganized until Tuesday. Now,then, to end until the 6th day of February. we have- Mr. STEWART. Who had th.e JOurnal? Mr. MITCHELL. Right there one other word, if it does not Mr. MITCHELL. The Legislature had the journal. disturb the Senator. . Mr. STEWART. Who made up the journaL Mr. STEWART. Nothing disturb.3 me. Mr. MITCHELL. The minority report certifies to the integ· Mr. MITCHELL. I make this statement, that no declaration rity of that journal. was ever made in that Legislature by any one member of either Mr. STEWART. Ahl ,Jrouse or by any number of members <>f either house that it was Mr. MITCHELL. Certainly the Senator will not ttack it. JLOt organized on Monday until the 6th day of February, nearly Mr. STEWART. Because it was not recorded in the journal two months after the election of Mr. Dubois~ . it does not make the fact less that the conspiracy existed and that Mr. STEWART. Now the Senator wants to break up my ar- the pr<>tests were signed. Twenty-three men have stated, and gument. I was coming to that, but I will tell you right here. sixteen men have sworn that they did protest, and it was not put Mr. MITCHELL. It is not a very difficult thing tD do. on the journal. Mr. Reed was clerk of the house. We have the Mr. STEWART. It will be a difficult thing to do, because I history in the Supreme Court reports of Mr. Reed's .capacity to am on the right side, and no matter which way it turns <>ut, what falsify journals, if it is necessary to go into that. No, their rea­ l say will be true. The Senator said that it was not determined sons for the protest were omitted from the journal, but that does til the 6th day of February. Here is a protest filed here on the not chang. e the fact that they protested at the time. th of January and signed by twenty-threemembers of the Legis- The PRESIDING OFFICER {Mr. PLAT~ dn the chair). The ~&ture. Senator from Nevada will suspend. The hour of 2 o~loek ha.s 1892. CONGRESSIONAL RECORD-SENATE. 1391 arrived, at which time the unfinished business is usua.ll:y laid be­ ganized. That is all there is about it. They were in process of fore the Senate. But the Chair understands that this lS a priv­ organization. It is a contradiction of terms to say they were or­ ileged question and that it goes on until completed or something ganized when they were organizing; that they had completed else intervenes. Therefore the unfinished business will not be their organization when they were organizing. laid-before the Senate at this time, but will keep its place and The committee has undoubtedly been misled in many ways. It come up after this matter shall have been disposed of. has stated that no oath was required. They state in their re­ Mr. PADDOCK. That will simply be given a.s a notice to the port that no oath was necessary. They had not discovered that Senate that that order is made. It is sufficient. an oath was necessary. They had not discovered that the rule The PRESIDING OFFICER. The Senator from Nevada wiU had been adopted requiring an oath, and they devote a page to proceed. the fact that they dispensed with the oath to Mr. Athey on the Mr. STEWART. Now the senate on Tuesday, December 9, as ground that no oath was required. That is one of the things I have said, elected its officers and passed the usual resolution showing that they had not made due investigation. Then they and notified the house of its organization. The house met on occupy several pages of their report to show that Mr. Athey was Monday, the clerk of the former house ·officiated, the members elected when it was admitted all around that he was elected as were sworn in, the speaker elected, and most of the officers were much as he could be elected by a body of men who had not been elected, and the house then adjourned until the next day. The brought together themselves. What occurred was admitted in next day they completed the election of officers. It was on Tues­ the beginning, and it is said that Mr. Clagett finally conceded day that they completed the election of officers and then after that. He did not make any point on it. What occurred was ad­ such offi~rs were sworn in, and not before, they notified the mitted. eenate th t they were organized. After the journal was read on But as to the precedents, the minority report has given us these Tuesday a following proceeding took plaoo; precedents in a most satisfactory manner. The majority report There being no objection, the speaker declared the election or omcers now claims that there are eleven precedents in the House of Repre­ tnorde-r. . sentatives where the House has passed a resolution notifying the Mr. Armstrong then nominated Rev. J. H. Barton for chaplain. Mr. Stu­ nenberg moved that the election be made by acclamation. Senate that it has organized when it had nothingbut a Speaker. Motion }>re-vailed, and Rev. J. H. Barton was declared duly elected. On investigation it is shown that there are none. If the com­ On motion of Mr. Monroe, the duties of the assistant enrolling clerk were mittee had examined it they would have found that there was not JD.ade those of journal clerk'until such time as the business o! the house should require the services of an additional clerk. acaseof that kind. The elevencasesa.re put into this report and on examination it is found that there were none. On the con- Then a resolution was adopted to notif,y the senate, a com­ trary-- · mittee was appointed in the usual way to jom a committee of the Mr. MITCHELL. Ha.s the Senator the record? senate and to notify the governor. Both houses decided that Mr. STEWART. I have the record. I have looked at the they were organized on Tuesday, and that they were not organ­ record, and I have it here. ized before. They were proceeding 'vith an organization on Mr. MITCHELL. It is here. Monday, but they had not got it completed. Mr. STEWART. The Senator ought to have looked at it be­ It is said that they could ha. ve legislated on Monday. Of course fore he made his report. they could have organized and determined that they had organ­ Mr. MITCHELL. The report is all right, as the Senator will ized, but they did not do so. The question is, when did theyor­ :find before he gets through. • ganize? The language of the statute is, "after the organiza­ Mr. STEWART. I am reading now from some portions of the tion," not" after the time that they could organize," but" after minority report because they have it correct. I have looked at they have organized.n It is admitted that the two houses are these cases myself, and the minority report is correct. the absolute and exclusive judges of the time when theyha.veor­ ganized, and no business was in order under the ordinary rules Mr. MITCHELL. What p~o-e does the Senator read from? of parliamentary procedure until they had organized. Mr. STEWART. I read from page 43. The minority report states, commencing on page 43: ~ Mr. GEORGE. Mr. President-- . The PRESIDING OFFICER. Does theSenatorfrom Nevada The eleven Congressional precedents ln the house of t•epresentatives cited in the committee's report, }>age 19, are cited to show that in these eleven yield to the Senator from Mississippi? cases the house of representatives has voted that 1t was o:rga.n.ized and ready Mr. STEWART. Certainly. to proceed .to business when it had a. permanent presiding o11lcer only, and Mr. GEORGE. I have been looking over a. copy of the consti­ when it had no regularly chosen and quali.fled recording o.tll.cer. tution of Idaho, which contains a conclusive answer to the sug­ The language o the majority report is as follows: gestion made by the Senator from Oregon [Mr. MITCHELL] that on Monday they could have passed a law. I will read it. Sec­ On not less, therefo-re, than eleven definite occasions has the House of Rep­ resentatives of the United States decided, and ln its decision the Senate and tion 15 of article 3 provides that- the President have acquiesced, that it is an organized House when a quorum No law shall be passed except by bill, nor shall any bill be put upon its of the Representatives have assembled, taken the oath of omce, and chosen final passage until the same, Wl~ the amendments thereto, sha~ have been a presiding officer. printed for the use of the members; nor shall any bill become a law unless the same shall have been read on three several days in each house previous Now, the minority goes on to say: to the final vote thereon. The conclusion reached by the committee, that in these eleven houses the That would take six -days, if they had commenced it then. house had no regularly chosen and qualified recording officer, is based upon the fact that after the election o! speaker, and before the election o! the Mr. MITCHELL. That would be the case at any stage of the clerk, the house has notified the senate that it was o-rganized and ready to session, whether the Legislature was organized or not. That has proceed to business, and in many instances has transacted legislative busi­ no bearing on the argument. ness during the time intervening between the election o! the speaker anq the election of a clerk. Mr. GEORGE. The Senator's contention was that they were The alleged precedents are no precedents at all in favo:r of Mr. Dubois, able to pass a. law on Monday. but are precedents or the most conclusi-ve character in favor of contestant, Mr. MITCHELL. Certainly. fo:r the reason that since the beginning of the Twenty-fifth Congress (1B39) the House has had a standing rule by which its Clerk and Sergeant-at-Arms. Mr. GEORGE. The constitution says they could not do so. and at a later date its Doorkeeper and Chaplain, when once elected, hold Mr. MITCHELL. The constitution does not say that they their omces untll their successo-rs are elected and qualified. Prior to 1839 could not pass a law on Monday. It simply says they could not the practice of the House is thus summarized by Mr. Barclay: "On the 1st of April, 1789, being the first day of a quorum of the House as­ pass a law until it had been read on three se-veral days. sembled under the new Constitution, the House immediately elected a. Clerk Mr. PUGH. I will ask the Senator from Mississippi if it would by ballot, without a previous order being passed for that purpose, although have made any difference; if there had been on Monday a perma­ in the case of a Speaker, who was chosen on the same day, an order was nent organization they would not have had any more power to previously adopted. A Clerk has been regularly chosen at the commence­ ment of every Co~ess since. The provision for the election of all omcers put a bill through. o! the House by t1tVa 'VOC4 vote was a4opted December 10, 1839." (See Bar• Mr. MITCHELL. Not at all. That is the point I make. clay's Digest, p.163.) 0 Mr. STEWART. I do not give way for a general discussion. ~rit~d~:~~¥~:Wo~~~~~~~~~fut~~~~n~~~~~ f~~ dis- Mr. PUGH. On the question of organization it is wholly im- charge of the duties ot his omce to th~ best ot his knowledge and ability, and material. They could not have passed a bill under three days if Shall be deemed to continue in o:mce until another be appointed. (Constitu­ tion, Rules, and Manual, Twenty-fifth Congress, p. 67.) there had been a permanent organization on Monday in the sen­ "A Sergeant-at-Arms shall be appointed to hold his omce during the pleas­ ate. So that is a wholly immaterial question. ure of the House, whose duty it shall be to attend the House during its sit­ Mr. STEWART. But as to the question of organization it is tings; to execute the commands of the House from time to time, together with all such powers issued b~ auYJ.ority thereof as shall be directed to him absolutely essential that the Legislature shall so determine in by the Speaker." (See Constitution, Rules, and Manual, Twenty-fifth Con- some form. Perhaps by going into legislation and passing a bill ~~~~ . they determine that fact. If they had gone into legislative busi­ These rules were adopted, by specia.t order, by the Twenty-sixth Con~ess (Congressional Globe, voL 6, p. 56), by the Twenty-seventh Congress (Con­ ness on Monday with such organization as they had they could gressional Globe, voL 8, p. 4), by the Twenty-eighth Congress (vols. 12 and 13, so determine that they had organized. But they were in the p. 335}, by the Twenty-ninth Congress (voL 15, pp. 4 and 428), by the Thirtieth inidst of organization and had not got through with their organ­ Congress (vol. 18, pp. 3 and 49), by the Thirty-first Congress (vol. 21, p. 78), by the Thirty-second Congress (voL 26, p. 10), by the Thirty-third Congress (vol ization, and no business was in order until their organization was 38, p. 4), by the Thirty-fourth Congress (vol. 38, p. 35), and by the Thirty-llfth completed, and they were entitled to no pay until they were or- Congress (VOL 4, p. 3). 1392 CONGRESSIONAL RECO.RD-SENATE. FEBRUARY 24, _

At the first session of the Thirty-sixth Congress, on March 16, 1860, these and a Postmaster foisted upon it and he, for one, was not willing that a Clerk old rules were changed to read as follows: should be put upon the House in the same way. He objected to the Journal ''There shall be electedatthecommencementof each Congress, to continue being read until the House-had authorized some individual to read it. inofficeuntil theirsuccessorsareappointed, a Clerk, Sergeant-at-Arms, Door­ The SPE.AKER. The Chair will state to the House that t.be Journal has been keeper, and Postmaster, each or whom shall take an oath :for the true and pr~>pared as ..usual under the direction of the Speaker. The individual at the f{loith:ful discharge or the duties of his office to the best of his knowledge and desk, who was reading the Journal, was one of the subordinate o:lilcers of the ability, and to keep the secrets of the House; and the appointees of the Door­ late Clerk of the House of Representatives. The positions occupied by the~e keeper and Postmaster shall be subject to the approva of the Speaker; and officers previous to the death of the Clerk are still, in the judgment of the in all cases of election by the House of its officers the vote shall be taken Chair, occupied by them. They are not authorized, however, to discharge viva vo~." (Rule X, Constitution, Rules, and Manual, 1876, p. 163.) the duties or Clerk. In the opinion of the Chair until a Clerk shall have been This .Rule X remained the standing rule of the House until the present Rule elected the House is not organized and no business can be transacted un­ n was adopted, which rule is as follows: til an election shall have taken place. But this state of things does not "There shall be elected by a viva voce vote at the commencement of each prevent the preparation or thereadingof the Journal. The Journal has been Congress to continue in office until their successors are chosen and qualified, regularly read even before the election of the Speaker in the original organi­ a Clerk, a Sergeant-at-Arms, Doorkeeper, Postmaster, and Chaplain, each of zation of the House, and the Chair is not able to perceive any objection against whom shall take an oath to support the Constitution of the United States, the reading. • for the true and faithful discharge of their duties to the best of their knowl­ Mr. Hall said he wished to remark that he considered the present state of edge and ability, and to keep the secrets of the House, and each shall appoint things very di.IJerent from that which existed when the House was organized. all of the employ~s of his department~rovided for by law." (Rule n , Consti­ Under the rule of the House the .Clerk of each Congress .held over until his tution, Manual, and Digest, Fifty-second Congress.) successor was elected. It the gentleman who read the Journal did so merely It thus appears that during the entire period covered by the eleven Con­ at the di8cretion of the House, and not as clerk, he (Mr. Hall) had no ob­ gressional precedents referred to by the committee the Clerk and Sergeant-at­ jection to it. But he widerstood that the gentleman was acting a.s Clerk. Arms of the House of Representatives, after being once chosen and qualified, The SPEAKER. The Chair ha.s stated that no person was authorized to dis- continued in office as the regular officers of the House until their successors charge the duties of Clerk. . were chosen and qualified. The Journal was then read and approved. It results, therefore, that in every instance referred to by the committee to Mr. Harris of Illinois rose and moved that the House proceed to t he elec- show that the House had no Clerk when it notified the Senate that it was or­ tion of a Clerk. · ganized after the election of the S:pea.ker is incorrect, because in every case Mr. Brown of Mississipp.i moved to amend the motion by adding after the Clerk elected at the last preceding Congress was in office, holding over the word " Clerk" the words "and Doorkeeper." under the rules of the House. The SPEAKER. In the opinion of the Chair the amendment is not in order. Mr. BROWN. Then I offer the following resolut.ion: They adopted these rules. They adopted these rules and The resolution was read, as follows: r changed them from time to time, continuing the old officers. " Resolved, That the order heretofore passed by the House postponing the election of Doorkeeper be, and the same is hereby, rescinded; and that the Mr. MITCHELL. Right there I wish to ask the Senator a House of Representatives proceed to the election of Clerk and Doorkeeper." question. The Senator denies the statement in the majority re­ The resolution having been read, port, which says that there were eleven precedents of a certain The SPEAKER. In the opinion of the Chair no resolution, no business is in order until a Clerk shall have been elected, and the House can take action character? The Senator denies that? upon no subject whatever until the election of a Clerk, that being necessary Mr. STEWART. Yes. to the organization o:t the House. Mr. MITCHELL. He says that is an incorrect statement? Mr. BROWN. I suppose some motion is necessarily in order? . The SPEAKER. No motion is in order except the motion made by the gen­ Mr. STEWART. I do. tleman from Illinois [Mr. Harris) that the House proceed to the election of a Mr. MITCHELL. Now he seeks to avoid it how? Clerk. . Mr. STEWART. By the fact that they had officers then. Mr. Kaufman rose to inquire whether the motion of the gentleman from Illinois [Mr. Harris] was debatable; because, if it was so, he had -risen tor the Mr. MITCHELL. By the fact that some House of Represent- purpdse of moving the previous question. • atives had adopted a rule, which was continued in force from time The SPEAKER. The Chair does not think that the motion to go into the elec­ to ti.llle, by which the officers elected by the House of Represent­ tion of a Clerk is debatable. If it is so, the debate must be confined within very narrow limits. But the Chair thinks that the question is not debatable atives should hold their offices until their suc~essors were elected at all. and qualified. ti~· KAUFMAN. Then it is uni).ecessary for me to move the previous ques- Mr. STEWART. Yes. Mr. BROWN. That I may have the sense of the House on that question, I Mr. MITCHELL. Now, does the Senator pretend to claim appeal from the decision of the Chair, and I would like to submit a. remark. here as a constitutional lawyer, in view of the statement in the The SPEAKER. The Chair has ruled that the resolution of the gentleman Constitution of the United Sta~s itself, that one House of Rep­ from Mississippi [Mr. Brown] is out of order, upon the ground that the House is not organized until a Clerk shall have been elected, and that no business is resentatives can elect officers who will be the officers of the other in order until the House shall have been organized by the election of a Clerk. House? Is it not a fact that they are only continued by virtue of From this decision the gentleman from Mississippi appeals. And the ques­ the action of the new House, by virtue of the recognition of the tion is- "Shall the decision of the CMir stand as the judgment of the House?" new House? The rule the Senator talks about, in order to avoid And the question thereon wa.s taken and decided in the affirmative without the statement of the committee, is no more than so much waste a division. paper in so far as the claim is made here that one House of Rep­ So the judgment was affirmed. resentatives can elect officers that will hold their office by virtue The question then recurred and was taken on the motion ot the gentleman ft•om Illinois [Mr. IJa.rris], that the House do now proce~ to the election of of that election in another and a new House of Representatives, a Clerk; and it was decided in the affirmative without a division. and without an acquiescence or recognition from the other and So the motion was agreed to. And thereup<>n the House proceeded to the election vive voce of a. Clerk.-Congressional Globe, volume 21, Part 1, 1849-'50, the new House. pages 740. 741. Mr. STEWART. Are you through? Mr. MITCHELL. Yes, sir. Mr. MITCHELL. What does the Senator claim that p~·oves? Mr. STEWART. Therehasbeenastanding rule all this time What application does he make of it? that these officers should continue in office. It has been done Mr. STEWART. I do not suppose it can prove anything to , by common consent, but they have been treated as permanent the Senator from Oregon, but I claim it proves that the House officers. decided that it was not organized without a Clerk, and that it Mr. MITCHELL. But is it not by the consent of the new could not be organized without a Clerk, and it drew the distinc­ House as far as that is concerned? tion between the case where there was a vacancy and where the Mr. STEWART. Yes; they cankeepthemrightalongasper­ officers held over. It was decided in that case that it was differ­ manent officers; but if they werenotconsideredaspermanentoffi­ ent from the case where the officers held over under a rule-, be­ cers no business would be in order according to the ruling of the cause the rule made them permanent officers. House, and one of the precedents cited here shows that most Mr. MITCHELL. That there may be no misunderstanding conclusively. about this matter, I ask if the Senator claims that in the eleven Mr. MITCHELL. Is there anything- to show that the new cases cited in the majority report there had been a Clerk elected House did recognize them as their officers? ·by that House? . Mr. STEW ART. Certainly. Mr. STEWART. No, the Clerk held over under the rule. Mr. MITCHELL. .What? The Clerks were permanent officers. In the very case here cited Mr. STEWART. · Theywentondoingbusiness. That was the they had no Clerk, because the Clerk died during the session. ln recognition of the House. Some of them went on for a consider­ this very case the election of Doorkeeper had been postponed, able time before there was an election. That has been the prac­ and the Doorkeeper in the last preceding House still held his tice. To show how the House views the necessity of having a office, all the officers might have continued permanently; they permanent clerk, one who is elected, we have a case here which were regarded a-s permanent officers, and that is the only basis on decides that questionand covers the whole business. A case oc­ which there was a valid organization. curred in the House of Representatives which puts an end to the Mr. MITCHELL. In each of those cases is it not a fact that controversy and should have been conclusive on the majority of that same House elected another Clerk afterwards? the committee. The House of Representatives decided Aprill6, Mr. STEWART. They did elect other Clerks sometimes. 1850-and I want to PJlt in my remarks this action of the House: Mr. VANCE. And part of the time they reelected the same HOUSE OF REPRESENTATIVES, T uesday, ..4.p?'il16, 1850. Clerk. The Syea.ker called the House to order at 12 o'clock. Mr. STEWART. And sometimes they postponed it and did One Of the assistants of the late Clerk of the House, Mr. J. C. Walker, pro­ not alec~ at all, but let the old officers hold over, showing by ceeded to read the Journal of yesterday. their action that they regarded them as permanent officers until Mr. Hall interposed and said that he had risen to inquire by what authority a.v person prepared the Journal here, under what authority the individual their successors were elected. In fact, that is the way a.ll the now at the desk was reading t.he Journal. The House had had:a Doorkeeper officers hold, until their successors are elected. 1892. CONGRESSIONAL RECOR.D-· SENATE. -1393

Whereupon an appeal was taken from the decision of the chah·. And now, what is a little tougher than this, is the repo~t of The speaker decided that the senate being now only partially organized the committee on the precedents of the Senate. The committee and engaged in the process of organization an appeal can not be enter tained say as to Senatoria~ precedents: at this stage of the proceedings. (See page 9, Senate Journal, 1875.) The Senate has at dilferent times for periods aggregating thirty-two days MARYLAND. transacted its ordinary business with the offl.ce of the Secretary vacant. House. On Thursday. January 8 (the speaker p1·o tempore having been chosen on I controvert that as a fact, but that is the precise language of the 7th), the following occurred: :Mr. Paine's brief. The first case to which the committee refer Mr. Gill moved that the house do now proceed to the election of speaker, which was decided in the affl.rma.tive. as to proceedingsthat?ccurred i.n.theSenatei submit is a pr_ece­ Mr. Lane nominated Hon. Jesse K. Hines, of Kent; Mr. Duer nominated dent against the committee's position, because the Senate decided Hon. John A. Koons, of Frederick. that a permanent secretary was necessary. This js one of the Mr. Seth moved to submit certain papers for the consideration of the house. The speaker decided that all motions were out of order until the house was cases where the committee allege the Senate proceeded to do duly and pronerly organized. (See page 6, H. Jour., Md., 1874.) business without a Secretary. · Whereupon an appeal was taken fron the decision of the chah·, aud the The record is as follows: chair was sustained, and the house immediately proceeded to duly and pl·op­ Re&olved, As the former Secretary of the Senate has departed this life, that erly organize itself by the election and qualification of its permanent speaker the Chief Clerk do act as the Secretary thereof until one shall be appointed. and chief clerk, and immediately thereafter notified the senate that it had And thereupon such Clerk was regularly sworn in as the Secretary of the organized by the election of those offl.cers. Senate. (Senate Journal, 1814, vol. 5, p. 523,) WEDNESDAY, December 12, 1866. Part of the proceedings of the council of the Territory of Colorado. The Could the Senate act without a Secretary? Certainly not. It temporary offl.cers having been chosen on December 3, 1866. l'3ee Council elected the Chief Clerk and swore him in as Secretary and then Journal, page 3.) proceeded. The Senate and the House had permanent officers, Mr. Douglass chosen president. * "' * Message from the house of repre- sentatives. . and they found it absolutely necessary in order to be organized to Mr. De Mary objected to the reception of the message on the ground that have permanent officers, at least a Speaker of the House and Pres­ the council was not organized. ident of the Senate and aClerkor Secretary of each body. Those The message was not received. · are the Congressional precedents. That having been the uniform They have gone through all these cases since the passage of practice of the two Houses of Congress, it is fair to presume that the act of 1866, and there can not be found a case where any Leg­ Congress in passing this act had reference to the general parlia­ islature of any State has attempted to do business on a tempo­ mentary usages of the country, not only in Congress''but in the rary organization. several States, and that the body itself must be the judge of its Very much has been said about the Iowa case, but undoubtedly own organization and must have reached the point ready for there was a mistake from the beginning. They elected on two business, and so declare, either by resolution or its conduc~ of occasions, dating from the temporary organization. Afterwards, legislative business and not be merely in process of reachmg in five different cases, where they elected bafore the organiza­ that point. That was universally understood. tion, they elected afterwards the same person, so as to meet the The minority have been industrious, and they have examined difficulty; and finally, at the last election, they waited a long the journals of the various Legislatures to find out what has been time until they had a permanent organization, and then waited the universal practice. I have the collection here of the views until the second Tuesday, and fell in line with all the States. of the minority; and it is interesting to understand what they So that we have the concurrence of all the States of the Union found by examining all th'e journals that are accessible here. that by their universal practice the time to elect Senators shall They lay down this as incontrovertible in regard to that: date from the end of the permanent organization. There is no In no case has either branch of any State Legislature ever notified the other exception to this rule. branch that it was organized when it had a temporary organization only, or was permanently organized in part only., or until it had completed its per­ Mr. MITCHELL. Will the Senator at that point allow me to manent organization by the election and qualification in all cases of its per­ read a few lines as to what the Legislature of Iowa resolved on manent presiding and recording offl.cers, at least, and, in most cases, of all that subject. the om.cers which it deemed necessary to elect. Mr. STEWART. I know what they did. This is the universal practice that one House has never notified Mr. MITCHELL. I do not know whether you do or not. This the other by the passage of a resolution that it was organized is the resolution they adopted: until it had a permanent organization, nor until then transa-cted Be it 1·esolved by the senate (the house concu?'ring), That our Senators and any legislative business, not even in the two Iowa cases in 1870 Representatives in Congress be, and they are hereby, requested to introduce and urge the adoption of an amendment to said section 14, so that the elec­ and 1872, of which the majority makes such great account in tion of United States Senators shall occur un the second Tuesday after the their report. permanent organization of the two houses of the Legislature. ' Continuing the minority report: And no case where such house ever t1·ansacted any legislative business Mr. STEWART. That was the law before. until after such permanent organization.- In three cases, in Pennsylvania, Mr. MITCHELL. It shows at least that the Legislature of Maryland, and Colorado Territory, respectively, attempts were made to do Iowa for a good many years was laboring under the impression business prior to the permanent-organization, and in each case:it was decideu t.hat no business other than the permanent organization was in order until that the law as it stood provided for an election after what is­ such permanent organization was completed. These three cases appear at known as a temporary organization. the beginning of the digest. Mr. STEWART. Then all you have here to hang your catse The !ollowfug is the list of States the proceedings of whose legislative or­ ganization (since 1866) are embraced in the digest: Massachusetts, Ken­ on is the precedent of a mistake made by the Legislature of Iowa, tucky, California, Virginia, Maryland, Pennsylvania, Michigan, New York, which as soon as it was called to their attention, they corrected Minnesota., Vermont, 'Oregon, Alabama, Colorado, Connecticut, New Hamp­ both times, and finally abandoned the temporary organization as shire, Delaware Indiana, lllinois, Missouri, and Maine. Exclusive of the six new States recently admitted and which have no his­ the time from which to date, and they concurred in the practice tory bearing upon this question, there are thirty-eight States, the legislative of the other States and do so now, because they committed an proceedings of twenty of which are contained in the digest. These are the only error which they admitted was wrong and which they had over­ States whose journals have been e.xamined in this connection. Where the journals of a majority of the thirty-eight older States show a uniform prac­ ruled. That is your precedent, and it is the only one you have tice in the organization of their legislative houses, to treat the permanent as got in all the States. the only organization, and the so-called temporary organization as only a pre­ Mr. MITCHELL. As a matter of course, it was safer in view liminary step in such real organization, it is fair to presume that the journals of the question about it to have the election take place after the of the remaining eighteen would if examined show the same practice. permanent organization. All the journals are not in the 'Library and could not be exam­ Mr. STEWART. I have no doubt it was safer to follow the ined. Taking up the case of Pennsylvania, where one house of law. the Legislature attempted to do business in the condition that Mr. MITCHELL. Itdoesnotfollowfrom that that anelection the Idaho Legislature was on Monday, we find: could not have taken place after a temporary organization. PENNSYLV .ANIA. TUESDAY, January 5, 1875. Mr. STEWART. Thenitdoesnotfollowbeeause all the States Met Tuesday, January 5, and were called to order by the speaker. * * * do it, it does not follow because both Houses of Congress do it, it A motion was made by Mr. Rutan, that the clerk proceed to open and read does not follow because the language so commands it, that the the returns as presented. second Tuesday after the permanent organization is the proper Which was agreed to. * * * When the returns of the Thirtieth district were read the speaker laid ·be­ time. Upon what premises can vou put it? fore the senate the following communication, protesting against the swear­ Mr. MI'l'CHELL. The s~atute says so. ing in of the person returned as elected from said district, accompanied with Mr. STEWART. The statute does not say so. These are the affidavits to sustain the same. · (Here the communication was read.) facts. It does not follow because the Legislature had not or­ Whereupon a motion was made by Mr. Strang that said papers, together ganized that it might not have organized. The senate of IdahQ with the credentials of the said John P. Colihan, be referred to a special com­ passed a resolution to go into an organization, appointed a com­ mittee of five, etc. * * * On the question; Will the senate agree to the motion? Mr. Wallace sub­ mittee to determine the offices to be filled, and adjourned. · They mitt-ed the point of order that the certificate of election of Mr. Colihan hav­ had the power to determine that they were organized and both ing been received and read he was entitled to be sworn in as senator, and houses determined they were organized on Tuesday, the 9th day that it was not in order to proceed with any other business until the senat-ors were sworn. of December, 1890. They passed their resolutions, and did not The speaker ruled the point of order noti'Well taken. attempt to do any other business. They were pursuing the XXIII-88 1394 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24, ordinary course, and to give any other construction and say these The PRESIDING OFFICER (Mr. PLATT in the chair). The bodies were organized when they said th~y were not, is to violate Senator fromNevadaisentitled to the floor and declines to yield. the common meaning of language, to violate the common sense Mr.OHANDLER. DoestheSenatordeclinetobeinterrupted? of mankind for the purpose ofcarrying out a scheme agreed upon Mr. STEWART. I decline to be interrupted until I have a that could not brook delay. It is difficult to argue so plain a chance to say something on this point. proposition. Mr. CHANDLER. Will the Senator allow me to say one word They did not determine they were organized on Monday, but before I sit down? they did determine they were organized on Tuesday. Mr. STEWART. If you do not w: nt to make a speech. Now I will proceed to call attention to what I denominate the Mr. CHANDLER. I will simply ay that nG one interrupts pin-point of the Senator from NewHampshire [Mr. CHANDLER], other Senators more than the Senator from Nevada. because it is so small that it is difficult to observe it with the Mr. STEWART. That is a mistake. naked eye. Iti.s the point that the committee still want to fall Mr. CHANDLER. And I only interrupted the Senator be· back upon. It is this: That there was no law applying to the cause he asked a question which I supposed he wanted an answer election of a third Senator in Idaho; that the act of 1866 does not to. apply, although as I read the act it covers the exact case. But Mr. STEWART. No; I was replying to what the Senator suppose that act does not apply, in what position is the-case? If · said. showing he did not understand what I wa trying to exp that act does notB>pply, what act does? ..-Ifi the first place, there plain to him, and he interrupted me and went right on talking. never was a resolution passed by either house of the Legislature I was saying that he had failed to recognize the necessity of hav­ to go into joint convention. I call the attention of the Senator ing some law to get a joint convention, that if the ReviBed Stat­ from New Hampshire to the language of the resolution that was utes of the United States did not apply to the election of this third passed. He says there is no law applying to the electio~ and Senator, then by what authority were they there together? They consequently the State had the right to elect. This resolution were not togethe-r by the authority of the two houses of the Leg­ reads as follows: islature, because n_o r esolution had been passed to get them to~ That the senate and house of representatives proceed to elect, as provided gather. By what a11thodty were they there? It was because by law, United States Senators at; t;he hour of 12 o'clock m .. .on Tuesday, De­ one or the other house might refuse to create a joint convention, cember 16, 1890. which had to be created by law, 'by the action of the two houses That appears in the senate journal, page 25. That was the separately, because one or the other of the houses might fail to concurrent resolution concerning this election, that they would do it. That is the reason hy this law was passed, and they had proceed to elect as provided by law. Now, if there was no law gone on with that trouble for .seventy-five years before it was providing for it at all, if there was no law applicable to it, no passed. Stat~ law, how did they get their joint convention? By what The Senator from New Hampshire tells ustha.tm.embersof the authority did they get a joint convention for that purpose? Legislature of the State of ld.aho had a right to get together Mr. CHANDLER. Does the Senator want an answer? without being authorized to do so by the separate action of the Mr. STEWART. I can runderstand how you get a joint con­ two houses, which would have made a joint convention. There vention to elect two Senators, because the constitution provides is no other law that .applies if the law of Congress does not apply. that they shall be elected according to law, and so far as not modi­ He says the law of Congress does not .apply,-but still they could fied the law of the United States would apply. I should like to get together without .any authority of law. I say if the law of have anybody answer how they can get into joint convention in Congress did ,not .apply to the election of Mr. Dubois in filling any other way if the law does not apply? If the law says two that vacancy, then there is no action taken by any body author­ Senators Bhall be elected, by what authority was that third Sen­ ized to act, because they did not resolve to go into joint conven­ ator there, what business had he there? There had been no tion at all. That is just the size of the point they have to fall resolution. Formerly it required some action of the two houses bac~ upon, and ridiculous as this point is, it is ~rfectly palpable to get into joint convention, and this law was paased because one thafthere could be no election at all in the jomt convention un­ or the other house would refuse to go into convention. Here less the autho1·ity be derived !rom the act of Congress. The Sen­ we have a genera'lmeeting, neithel' houseaskingforitatall, and ator who made the report of the committee falls back upon that if they did not get there in pursuance of Congressional law, how just a-s a drowing man catches at a straw, and whataflimsystraw did they get there? What kind of a body was that? it is that a drowning man will catch at! Mr~ CHANDLER. Mr. President I think the election was But I undet·take to say that there was another veTy e ential good nnder the .statute. They said 1'We will proceed to elect direction in this law Tiolated which was not violated in the according to law," and I think it was a good election under the Iowa case, and which was never violated in fact, although the statute, as the majority of the com.Dlittee think, but I do not case in Florida was where the two houses resolved to go into joint think the statute applied. I think they conformed to the law convention and no objection was made on that account. In all needlessly, and having elected two Senators, then 54 members other instances there have been attempts to elect in the houses of the Legislature, being the whole number of the members of Separately, in compliance with the law, and that is the universal the Legislature, proceeded to vote for Senator. They were in construction of the law, and I undertake to say that the houses joint convention. It did not make any difference, if the Senator can not go into joint convention by virtue of this law without fol­ will allow ;me, how they got there. 'They were there. They lowing the law; that they have no right to be there except by met there at that time for the purpose -of electing a Senator, the following the law. ~tis the law as to the time when they whole of them. They had elected two, and then they proceeded may be in joint convention? The omission of this preliminary to elect, as they had a right to do, the successor of vne of them. to make an attempt in the two houses was a signiftcant thing, It is all YeJ.'Y simple to me. and I believe is conclusive and should be held conclusive. Sec­ The Senator asks how could the Legislature get into joint con­ tion 15, Revised Statutes; vention lawfully? They were all there and they were all there SEa. 15. Sucheleetdonshall be-conducted in the following manner: Ea.eh house to elect a Senator and they all participated in it. I do not see shall openly, 'by a "Viva voce vote o! each member pre ent, name one person for Senator in Congress from such State, ana. the name of the person so voted for my part how anybody can doubt that that was a good election for who receives a majority of the whole number of votes cast in each hoUBe of a United Stat~s Senator when 32 men voted one way and 22 .Rhall be entered on the journal of that house by the clerk or seeretary thereof; or, if either house fails to give such ma.jority to either lltlrson on tha.li day, voted the other, when we have already admitted the Senator the fact shall be entered on the journal. At 12 o'clock meridian of the day from Florida [Mr. CALL], who got 51 out of 100, and the others following that on which proceedings are required to take t>lace as afore aid, were all gone. the members of the two houses ahall conven in joint as emb1y, and the j ourna.l of each house shall then be read, and if the sa.m.e person ha.s received Mr. STEWART. The Senator is perfectly oblivious to the a majority of all the votes in each house, he l:lhall be declared duly elected fact that the joint convention, as it appears to me, is not a legis~ Senator. lative body. A joint convention is not a Legislature. It is created That is a simple declaration. They merely got together, with­ by law. out any legislative function, to declare the result. They are Mr. CHANDLER. Not at all. I had the honor of showing to brought together for that purpose, and when they may vote to the Senate in the debate on the Florida case thatLegislatures had elect is determined in the following clause: acted as joint bodies from the foundation of the Government~ for But if the same person has not received a. majority of the vote in each a hundred years, and that it is almost the universal method of house. or if either house has fa.1led t.o take proceedings as required by this State Legislatures making elections'to meet together and do it, ·ection, the joint assembly shall then proceed to ch,oose, by a. vtva voce vote of each member present, a. person for Senator, and the per on who receives every man the equal of every other man, and I am not oblivious the majority of all the votes of thejointassembly-.amajorityof all the mem· to any law. bers elected t;o both houses being present and voting-shall be declared duly Mr. STEWART. The Senator is perfectly oblivious to the elected. main question. The two cases in which the Legislature may have .a joint con­ Mr. CHANDLER. I am willing the Senator should state that vention for the purpose of electing are specifically named. One I am oblivious to anything 1 am oblivious to. is where they voted in the two houses separately and no one had Mr. STEWART. The Senatorisoblivioustothelaw. I have received a majority of the combined vote and had been elected; the floor. the other is where either one or the other of the houses fails to 1892. CONGRESSIONAL RECORD-SENATE. 1395 elect fails to take action. Then they may come together, but · lutions, or l:;l.ad·taken the initiative proceedings, to elect the third the c'onvention must be inaugurated by one or the other house. Senator, because they voted to fill the existing vacancies. This It was attempted the other day to change its meaning, and to same Senator Gunn, who offered the resolution on the 16th as to say that "either" meant" both." That, however, was not the the time they were to vote, moved that the senate do now pro­ difficulty that existed, because always one house or the other ceed to elect a second United States Senator to fill the existing would want to go into an election, but i! either failed then there vacancy after they had voted for one and did not fill it. Then might be a joint convention. It would be idle to provide for a they adjourned. They were votingtoelectUnited States Senators joint convention if both refused, because then they would not to fill existing vacancies. That is what they were doing, and no~ , elect in a joint convention. That case was never dreamed of or body ever dreamed that they were doiD;g anything else. They provided for. If both refused to go in and take actjon, they could were voting in the separate houses to fill those vacancies. The not be compelled to elect a Senator; but if one wanted to elect whole thing was inaugurated by the following- resolution: sprung and the other did not, then their proceeding would be inaugu- while they were in joint meeting for another purpose: .. rated. Resolved by the joint assembly of the senate and house of representatives of the Mr. MITCHELL. Allow me to test the soundness of the Sen- Legislature of the State Qf Idaho, That we proceed to elect two United States Senators to fill vacanCles, and t.hat after such elections we imm.ediately pro­ a tor's argument. The Senator concedes that that Legislature, ce~o elect one United States Senator to fill v11cancy occurring March the which met in joint conveutiqn had the right to elect two Sen- 4th, 1891. ators? This joint convention, when it. was together, providing it was Mr. STEWART. Yes. together under the law, had a specific duty to perform, viz, to Mr. MITCHELL. Now, suppose when the vote was taken in complete the election previously inaugurated in the two houses, the separate houses on the 16th, instea-d of voting for two, they not to resolve itself into a legislative body and declare that they had simply cast one vote for a Senator. Had they or had they would do another thing, viz, elect a United States Senator to not the right in the joint convention the next day or two days fill another vacancy which was not an existing vacancy at all. afterwards, the 18th, to elect two Senators, although they had So that by no fa1r construction of language did they go into only voted for one in the separate houses? that joint co11vention for any purpose except to :fill existing Mr. STEWART. I do not know. There is some doubt about vacancies, and, as a matter of fact, they had only voted for one that. Senator, and really they had only a right to fill that one vacancy. Mr. MITCHELL. I think that tests the Senator's argument. They should have voted again in the separate houses if they Mr. STEWART. Is it to test the argument? wished to follo·w· the law. But the idea that they voted. for this . '· Mr. MITCHELL. Yes. third Senator in separate houses is not true. The eleeting of Mr. STEWART. My argument is on the statute. I am say- Senators is a separate act. It requires a separate vote. to elect a i.B~ that the statute is not merely directory. Your argument is Senator for a particular term; and it cannot be said, because they this: That notwithstanding Congress has passed a law, having voted for one Senator to fill an existing vacancy, that they com­ the authority to do so, requiring that the house3 shall meet sep- plied with the law in voting in separate houses for a Senator, arately and providing for a joint convention in case of either of which the law expressly requires.. them failing to act, therefore it means they shall have a joint This statute has no application at all, and is entirely ignored convention when they both fail to act. I say that is not the law. by the committee. The committee do not pretend to say that The law is plain, that a joint convention is only created in case tbe Leo-islature declared itself organized on Monday. They do of necessity, and that necessity never exists, and is never pre- not pr:tend to say that it or any other legislative body ever did eumed to exist, except in the case named, and the case named is a legislative act under such circumstances; but still they say the where one or the other house refuses to go into joint convention. Legislature might have been organized on Monday and might Mr. MITCHELL. The Senator is getting away from the have resolved to do a legislative act, and therefore, contrary to point that I wished to hold him to. the fact, they will hold that the Legislature didorganizeanddid Mr. STEWART. You can not hold me to a point that does do legislative business within the meaning of the law, because not exist. they might have done it, when they did directly the opposite. Mr. MITCHELL. The Senator will admit that the two houses That is plainly the position of the committee~ and there can be did meet separatel;y on the 16th? · question about it. . Mr. STEWART. I doubt whether they had a right to so I do not know whether Senators have investigated this case meet. and made up their minds or not: This, however, I may say: Mr. MITCHELL. And they cast on that day a vote for Sena- That if Mr. Dubois retains his seat in the Senate he is elected by ' tors. The argument of the committee is, having done that~ the the Senate of the United St&tes and not by the Legislature of condition precedent required by the law was performed, and . Idaho. The Legislature of Idaho have expressed themselves in whethertherewasoneortwoorthreeorfourSenators to be elected most unequivocal language on this subject. On the 9-th of Feb­ by that Legislature, having voted for one Senator the condition ruary, 1891, the following concurrent resolution was passed by was performed, and then it was their duty to go into joint con- the two houses: vention on the next day and elect as many Senators as it was the Whereas, the present session of the Legislature was organized on Tnes- duty of that Legislature to elect at that session. That is pre- day, December 9, 1890, etc. cisely the position of the committee. It seems to me that here was a legislative declaration, and it Mr. STEWART. That is, the position of the committee is, is the first one since the Tuesday when they passed the various that there having been a law passed in pursuance of the consti- resolutions declaring that they were organized on that day. It tutional provision, that two Senators might be elected within is. the only one by the Legislature. This pretendedjointassem­ tendays, they thengoinand voteforoneSenator. Then they may bly did not pass any resolution to the effect that the Legislature elect all the. Senators and fill all the vacancies that may occur was organized on Tuesday. They went on and elected without thereafter. Thatisthepositionof thecommittee. Thatisabout passing any resolution in the two houses. The Legislature ol in keeping with other positions of the committee. Idaho never declared that they were organized on Monday. On The position of the committee is that the statute is entirely the contrary, each house of the Legislature on Tuesday, Decem­ directory, that because the Legislature voted for one of the two ber 9,. passed a resolution that it was then organized and ready Senators to be elected within the first ten days, therefore they for business. On Monday they wera engaged in the business of can elect all the Senators who will have to be elected from that organization. State during the whole session. The whole proceeding shows The only argument in favor of the idea that the Legislature that they had reference exclusively to the election of those two considered they were organized on Monday is the fact that they Senators. Nobody ever dreamed OJ.' suggested that they would do elected Mr. Dubois before the time, but they did not in the res­ anything else. On the contrary, twenty-eight mtm swear that it olution that I read proposing to elect a third Senator, recite the was understood when these resolutions passed that they applied to fact that they were organized on Tuesday. They did not say any­ two Senators, and nobody suggested the contrary. It has been thing about that. But when the matter was called to the atten­ invented by the committee. You never denied thefactthatthat tion of the senate and thehouseandtheyexaminedtheirrecords, was the understand.ing when they went into joint convention, they knew what they had done, and they passed a solemn resolu­ and to say because they voted for one Senator that that means tion by both houses to this effect: voting separately for all the Senators is ridiculous. Anything Wh~reasthe present session of the Legislature was organized on Tuesday, standing in the way of this combination had to move, and if they December 9, 1890; and could not find it in the record the committee invents something Whereas the State constitution and the admission act require that two far-fetched and never thought of. Let us look at these records · United States Senators should be elected within ten days afterthe-organiza· ' · ht Th' · th J. t' tion of the Legislature; and and see whether they are r1g . 1S IS e reso u wn: Whereas, on Tuesday, the 16th day of December, 1890, the Legislature pur- That the senate and house of representatives proceed to elect, as pro- snant to the requirements of the cons1litution and the admission act, 1voted vlded by law, United States Senators at the hour of 12 o'clock m. on Tues- for a United States Senator, in the two houses acting separately, and there- day December 16 1890 after, as provided by law, m.et on Decem be? 17, in joint assembly, and vot.ed ' ' · · for a United States Senator, and thereafter, on December 18, 1890. again met It is now claimed that the two houses saparately passed reso- in j(}int assembly, and within ten days after its organization, elected, in the 1396 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24,

manner provided by law. the Hons. GEORGE L. SHOUP and WilliamJ. McCon­ nell Unit<"d States Senators; and have been knownhereifit had not been anece~sityforthecombi­ Whereas the Legislature thereupon immediately proceeded to vote for nation to go right ahead, on the night of the 17th,with the agree­ lion. Fred. T. Dubois for the term beginning Marcn 4, 1891, in advance of ment drawn up, and they went in the next day. Of course they the drawing for terms by the two Senators elect, in advance ofthetimeftxed by law, without first voting in the two houses acting separately, and against had no time; of course they could not give the members time I ~ the protest of the members of the joint assembly; a.nd to consider, a.nd of course such an arrangement as that would Whereas, upon full consideration of the facts, it is the opinion of the Leg­ not stand investigation. It was then or never, and the _statute islature that if the alleged election of said Hon. Fred. T. Dubois is not void, all there is at least grave doubts as to its validity: Therefore, had to be laid aside and preliminary steps had to be disre­ Resolved by the senate (the house of representatives concurring), That at the garded. hour of 12 o'clock meridian of the first legislative day after the passage of What did that proceeding in the joint convention on Decem­ this resolution the Legislature will proceed to elect a. United States Senator to succeed Hon. Will1am J. McConnell for the term beginning March 4, 1891, ber 18 imply? It implied extraordinary haste to accomplish a a.nd that such election shall be conducted in all respects in the manner pro­ purpose that couldnot otherwisebeaccomplisbed. That is what vided in section 15 of the Revised Statutes of the United States. it implied and nothing else. Everybody knows it. It is known If the Legislature is the judge of that, it has twice judged the to the world. If Mr. Dub<>is is retained here be is retained in facts and never to the contrary. If, as the majority report says, violation of the party platform; he is retained here without re­ the Legislature shall be the judge of when it is organized: the gard to the statute; he is retained here by a construction that two houses each declare that they organized on Tuesday, the will come back to plague us. This· was the beginning of the new 9th, by passing the resolution,-and previous to that time they session of the Legislature of a new State, and it ought to have were engaged in the work of organization. The two houses, been understood and discussed in the two houses as to how the when the matter was taken up for them to act upon, in February, proceeding should be pursued. These resolutions ought to have judged that they were not organized until Tuesday. That was been passed. There ought to have been no undue haste. Fair adjudged by their solemn resolution. Amendments were offered play required it. But ii you indorse such proceedings as these to the effect that they were organized on Monday and they were you will encourage the violation of platforms, trampling upon voted down. The resolution was discussed and 1t was finally de­ your laws, and proceeding in the most irregular way. termined by the Legislature that that organization took place This law was passed for the identical purpose of avoiding just on Tuesday. such a proceeding as this; to point out and to indicate the steps What, then, becomes of this talk about the power of the Legis­ that fix a time; to create uniformity_. But what becomes of the lature to determine these facts if Congress ruthlessly steps in law, the steps amount to nothing if the time must be disregarded, and says your determination amounts to nothing; that you can if the very definition of organization is to b3 blotted out, i:f the n{)t find these facts; that you shall not produce them? We say precedents of both Houses of Congress and of the States are to you might have done something else, and therefore we will hold be disregarded? I say they might have legislated, but Senators that you did do something that you did not do, and we will give can not find a case in all the books- in all the States where any Mr. Dubois the seat because we want him, not because he was State Legislature ever did regard itself as 'organized until it elected by the Legislature of Idaho. That is the position of this had elected at least the presiding officer and clerk. report. Nobody will undertake to say that that Legislature has No State ever atte:!D.pted to legislate or do business. and so fal· not determined the fa

should be elected by the people ii there is any chance for the been legally filled, and now we are told that the sitting member Senate of the United States to elect Senators without even the must be considered and nobody else. action of the State. If Senators can be elected in violation of I understand the advantage of the sitting member. He is here pledges, in violation of law, if judgments by midnight agree­ and a good fellow and talks to everybody and has had the inside ments can be enforced and sanctioned in this way, you will not track all the time. It is an uneven contest between a sitting hear the last of it. A great wrong like this has many voices and member and one on the outside who does not have a chance to it will be brought back to trouble you years after. It will be a see Senators. It is hard to go against a man with whom we are precedent that will make confusion. The law that was passed in associated all the time and. who is infactagood fellow. Weare 1866 has made at least the elections in the several States orderly inclined that way and we do not look into the case. It is said up to this time; but if you blot out the date, if you say it does we are going to deprive him of his seat. He has never been en­ not make any difference when the election takes place, if you titled to the seat. disregard the necessity of taking separate votes, you will leave Do you deprive him of anything? If he had come down and it so that it will be a trap of which the members of the Legisla­ stood by the platform and stood in regular range he would not ture may not know, of which the people may not know when the have got anywhere near this seat. Why did he not come in and election is taking place. · be elected the second time if he was the man? Why did he not Here twenty-eight men come up and say they had no idea that get the majority if he was the choice of Idaho? It would have a third Senator was to be elected. All these menswearthatthey bean no trouble. He was notified; he knew the election wa-s heard the rumors on the night of the 17th of December that a coming on; why did he not do it? Because he could not do it compact had been formed to elect a third Senator, and then they any more than he could have been elected if he had adjourned say they did not know they were going to be forced on before the the joint-convention. He had to be elected then or at no time. time fixed by law. Here we have a proceeding inaugurated with­ Must we say that because a man has not been hei·e and has not out notice to the parties concerned, a conspiracy secret at mid­ had an opportunity of making our acquaint-ance, ~d has not had night, and it is carried out the next day, and in carrying it out an opportunity of pleading with us to vote for him, we will not they have trampled upon the law, and we are asked to sanction give him a fair hearing, that we will not look into his oase and that. see that he has his legal rights? That is all he a-sks and all we It is said that this must be done so that Idaho may be repre­ ask for him, because if Mr. Dubois has a legal right it would sented here. I say that Idaho ought to be represented. Idaho be a great offense to deprive him of his seat; but we think we has a right to be represented, and she has a right to be repre­ have shown that he has not a legal right. Now, I think in all sented by her chosen Senator, chosen according to the forms of fairness it would be right to give Mr. Clagett an opportunity the laws of the United States, elected after due notice, so that to argue this case as a question of law, and if there be no objec­ they may know it is not represented by a Senator elected by a tion I shall make that motion now, and offer a resolution, the joint convention coming together without any authority of law, present consideration of which I ask, that he have a chance to be meeting fqr another purpose and misled by the reading of tele­ heard. grams from Washington, misled in every way, misled by not Mr. MITCHELL. Is the Senator from Nevada through? knowing exactly what the agreement was, and by that· means Mr. STEWART. I will offer the resolution. they get a bare majority to pass a resolution to go into the elec­ Mr. MITCHELL. I object to any resolution pending-- tion of a third United States Senator and then elect him. Now Mr. STEWART. I have the floor and can offer the resolution. it is said because Idaho repudiates this, because Idaho comes for­ Mr. MITCHELL. I certainly object to any resolution being ward and says, ''This is not the Senator we elected; our voice was offered on any suhject while this matter is unsettled. not beard," we are depriving Idaho of a Senator. I say she is en­ Mr. STEWART. It is on this subject. It is a part of this titled to a Senator, but she is entitled to the Senator she elected, subject. not to the Senator who was not elected. Mr. VANCE. I begleave to suggest tothe Senatorfrom Ol·e­ It is too important to know when a Senatorial election is com­ gon that if we wait until this matter is settled it will be entirely ing on to have a dozen different definitions as to the time for too late to effect the purpose of the resolution. ' electing. From the foundation of the Government until now the Mr. STEWART. I offer the resolution and ask for its present same definition has been given. Here are the precedents. No consideration. I think I have the right to offer it. Legislature ever attempted to do legislative business until it had The PRESIDING OFFICER. The Senator from Nevada of­ permanently organized, and that is the date from which every fers a resolution which will be read. one goes. That has been examined here and there are no prece­ The Secretary r ead as follows: dents to the contrary. Every Legislature has followed that date. R esolved, That William H. Clagett, the contestant for the seat in the United When they permanently organize they invariably pass a resolu­ States Senate. now occupied by Hon. Fred. T. Dubois. have leave to occupy tion to that effect and notify the other house, and they date the a seat on the fioor of the Senate pending the discussion of the report o:t the Committee on Privileges and Elections, and that he have leave to speak to Senatorial election from that day. the merits of his right to the seat and on the report of the committee. , The only exception is the Iowa ca-se. Iowa was wrong tempo­ rarily, but she has got right now. That is the consensus of all Mr. MITCHELL. Will the Senator allow me a moment? the authority; that is the necessity of the case, providing we are Mr. STEWART. Certainly. going to get any guidance from this law. The law is to cover Mr. MITCHELL. I ask that the resolution may gooveruntil such a case. We must take it from the organization as the Legis­ to-morrow in order that we may look into the precedents. For lature declares it and not from the organization we imagine here one I do not intend to throw any obstacles in thewayofanyrights might be made. When the Legislature is the only power that that the contestant may have. I am not informed as to the pre­ can determine when it is organized or proeeed to legislative busi­ cedents of the Senate, and for that reason I simply object to the ness, what an absurdity to say, after it has determined that it consideration of the resolution to-day. was organized on one day, that it was organized on another. Mr. STEWART. I have looked at the precedents. Whatever may be the result of this case, if Mr. Dubois retains The PRESIDING OFFICER. The present occupant of the his seat, I predict great evils to grow out of it, not only in Idaho, chair would observe that he has doubt as to whether the resolu­ but confusion everywhere. Is this to be an encouragement of tion is in order at this time. He expresses no opinion on that unfair dealing? There is not a Senator here who, if he was a subject. candidate for the Senate, would not feel outraged as an individ­ Mr. STEWART. Let the resolution be offered and go over ual if at night time an arrangement was fixed up to arrange a until to-morrow on objection. time for electing a Senator never dreamed of, and to fix a mode Mr. MITCHELL. Let it go over until to-morrow and be of electing him unknown to the law. printed. The time and mode of this election was fixed in the night, and The PRESIDING OFFICER.. It will be so ordered. does not any citizen feel outraged to see it done that way? If Mr. TURPIE. Mr. President, I concur very sincerely with there is anything that our citizens dislike it is jobs, and when the felicitations which have been so often expressed during this you see a job you may always know that the law is being circum­ debate that the case from Id_aho is entirely without partisan a-s­ vented if possible. The people do not like Legislative jobs. It is pects. Both the claimants are members of the Republican party. one of the evils of the country that the law is evaded, and shall The question which claimant is entitled to the seat is one wholly it be evaded here? Shall we say that the Legislature was organ­ judicial. Under all circumstances such a question ought to be ized when it was only in the process of organization? Shall we purely judicial, but it is gratifying to know that in this case it not wait until it gets through and date from that, as all the other must be so. Whatever our action may be with respect to the States do? In other words, shall we elect a Senator here or shall two claimants to the seat from Idaho, it will not change or affect the Legislature of Idaho have the privilege? The Legislature the political complexion of this body. of Idaho have elected Mr. Clagett. They elected him by voting The theory that the election of a United States Senator is a in both houses. They elected him deliberately by fixing a time. legislative act, and that it must be in some manner controlled and They elected him because there- was a vacancy which ha-d not regulated by legislative limitations and conditions and by the

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1398 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24~

action oi the two houses as such, has obtained some credence, Wlien the record of one court or the record of two or three probably from the fact that in the Federal Constitution it is pro- cou;-ts, as we .have often heard them read, is read in a fourth vided that Senators shall be chosen by the Legislature of the sev- court to sustam a defense or to support a recovery, does any im­ era.l States, though it is very evident that the term" legisla- plication follow that the court whose record is read is a part of ture" in that section refers only to the body of persons chosen by the court in which it is read? Does any implication follow that the people of the State to perform legislative functions and has the court in whose hearing and for whose purposes the record of no reference to the Legislature as divided into two, three, four, another is read is a constituent part of the court which made the or more chambers~ record? · I recollect very well a time in Indiana, and I think the same There is not the slightest implication !rom this provision of custom obtained in all the other States of the Union, when the the statute that the two houses are present as such. Their sap­ Legislature of the State elected all the State officers except gov- arate action is read as evidence of an election or of their fail­ ernor and lieutenant-governor; when it elected canal commis- ure either to take proceedings or to elect; but it is read as evi­ sioners; when it elected circuit judges, as well as JJnited States dence to a third body, which is neither the senatenorthehouse, Senators. Now no elections are left to the Legislature in our and yet it is the Legislature; because by the very terms of the State, and very few, I presume, to the Legislatures of other constitution of the body it should embrace all the members States, excep~ that of United States Senator. The people now elected to either house. Itmustembraceamajorityofthemem­ elect, as the Legislatures did formerly, canal commissioners, and · bers elected to both houses. / they elect the auditor of state, the secretary of state, the treas- Some Senator may say, why pursue such an endless analogy urer of the State, and attorney-general. between. courts. and Legislatures? Your precedent makes the The people do sometimes legislate. They legislate when they case very plain as to courts. There is a reason for it, Mr. Presi­ vote upon an amendment, or upon the whole body of a constitu- dent. The connection between courts and Legislatures has been tion submitted to them under the modern practice for approval so long continued, and in the beginning the two bodies were co­ or rejection. But are the people when they are engaged in the incident; every Legislature was a court and every court was a. election of a. secretary of state or an auditor of state or canal Legislature. One of the first Legislatures ever organized in the CQmmissioner engaged in legislating then? Certainly not. And United States was called the General Court of Massachusetts, if they are not so engaged, how does it come that the Legislature and I do not know whether the name is changed to-day. It had when it elected those officers was in the performance of a. legis- most extensive judicial powers as well as legislative powers. lative act? The truth is as to the election of these 0fficers, either I recollect very well when only Legislatures granted divorces, United States Senators or others, by the Legislature or by the when the Legislature might be appealed to to grant a new trial, people-as the time may come when they will even choose United and it is hardly necessary for me to remind Senators that this States Senators-in neither case is such election a legislative act. afternoon this body is a court. Every Legislature is a court-in To avoid the multiplicity of functions, and especially of officers, such a question our determination is a judgment, an adjudication, it has been the practice in our Government to add to the regular and we are membez:s of a court in regular session. This is one duties of officers well known certain others for the purpose of sa.v- of the reasons why judicial precedents apply so closely to legis­ ing time and saving salaries. For example, judges of courts of lative proceedings. record in Indiana and many of the other States are authorized to There has been some prefatory discussion as to the election of solemnize matrimony. Supposing, now, a judge of a court of three Senators from the State of Idaho, as to its regularityorir­ record leaves his associates and the court and goes to the resi- regularity. Idaho had been admitted as a State into the Union. dence of the bride, according to immemorial custom, and cele- That is very clear. It must have been so before this Legislature ' brates a marriage, is it a judicial act; or supposing, as I once wit- was elected. Senators here are divided in three classes in re­ nessed, the happy couple come to the court while itis in session, spect to the years at the end of which the term expires,· and the and the ceremony is performed in open court by one of the judges arrangement of these classes is determined here, not by the Leg­ thet·eof, is that a judicial act? These judges are also authorized islatures of the Stat-es. Where more than one Senator is elected, to take an acknowledgment of deeds and other instruments of the respective terms of the two Senators elected from a new writing. Is taking the acknowledgment of a deed there in open State are determined here, not by the Legislatures of the States. court or at chambers or in any place within their jurisdiction a The Legislature of a new State can not know certainly as to judicial act? any person elected what particular term he will have in such Many of the acts of judges are not judicial and many of the a.cts cases. The Legislature of Idaho knew as much as the Legislar of Legislatures are not legislative. As ii to cut up by the root the ture of any other State in like circumstances would know, but opiriio;n that the election of a United States Senator was a legis- with respect to the classes to which the persons elected should lative proceeding, Congress more than a quarter of a century ago belong as Senators, that was known long before the Legislature enacted the law of 1866, in which they remit this duty, according of Idaho met. It was determined by the previous classificatiQll to a precedent much older than the act itself, to the joint assem- of the series of Senators elected from the new States. bly, a b.ody wholly nonlegislative, for I do not think it will be I find here in the Congressional Directory-! have not referred contended for a moment that the joint assembly as constituted to the official journals of the Senate, because I think Mr. Michael' under the act of 1866 is a legislative body. You can not intro- compilation is taken, and taken very correctly, without a single duce a bill, consider a resolution, or take even a single step in error, from those official journals-! find that the classification ' legislation in the joint assembly. It is a body wholly nonlegis- in the State of- Wyoming, which fixed that in the State of ldaho, lative and wholly devoid of legislative functions; yetitmayelect embraced two Senators, CAREY and WARREN, one of whom was a United States Senator. The express authority is given to this assigned to the class of 1895, and one of whom was assigned to body, wholly nonlegislative, to elect a United States Senator, the class of 1893. This was done in December, 1890, before the showing that this election, whatever else it maybe, isnotalegis- meeting of the Idaho Legislature, and this classification made it lative act. . a necessity that the two Senators elected from Idaho could not In reference, however, to the survival of the old theory for- belong to 1893 or 1895-those classes would be too largely in­ merly spoken of, that the Senatorial election is a legislative act, creased-but they must belong, one to the series of 1891, and the in the debate the other day upon the question of the case from other to the series of 1895, in order to keep up the equality of Florida, I heard the learned and -honorable Senator from Dela- the classes, for that is one of the rules of classification. ware [Mr. GRAY], who, I regret to see, is not present this even- When the Legislature of Idaho met, then, it was fully known, ing, put this question, whether the clause which provided that and it was known before they met, that there were two Senators the journals of the two houses should be read at the opening of to be elected from that State, one belonging to the class of 1891, the joint assembly did not imply the existence of the two houses whose terms expired March 3, 1891, and the other to the class of as such? 1895; and it must have been just as fully known as it is known to I should answer the question in the affirmative; most certainly us to-day that as to one Senator, whoever he might happen to be it does; it implies the existence of the two houses as such, form- in the drawing of lots, the expiration of his term on March 3, ing a regular session of the Legislature, during which the United 1891, would create a vacancy which must be filled, under the Ian­ States Senator must be elected. That distinguishedSenatorfol- guage of the law, by the Legislature of Idaho in session next be­ lowed this up with also another question, not reposing in reply fore the vacancy occurred. upon any position himself, whetherthereadingofthesetwojour- Mr. MITCHELL. Will the Senator yield to me? nals did not imply the action of the twohousesas such!. to which Mr. TURPIE. I prefer not to be interrupted. I answer in the affirmative; it most certainly does imply the ac- Mr. MITCHELL. I think the Senator was mistaken in the tion of the two houses as such. But it is their past action; their ·date. I wish to call his attention to the fact that Wyoming was action of the day before. Then the distinguished Senator asked admitted in the same year the Idaho Legislature met. also whether the fact that the journals were read in the joint Mr. TURPIE. I said the same. I was speaking of the admis­ assembly was not an implication that the two houses as such were sionof Wyoming as occurring in 1890, and its two Senators, CAREY present in the joint assembly; to which I anBwer, no, not the and WARREN, were seated here before the Legislature of Idaho slightest implication. met.

. 1. 1892. CONGRESSIONAL RECORD--SENATE. / 1399

The Wyoming classification made it an unavoidabm necessity been here; he has appeared; he has qualified; he has run his tbat{)lle<>f the two Senators :fi.rst.electedlrom the State<>f Idaho race~ his Se-natorial course is finished, and yet be was elected by should belong to the class of 1891, .and that his term should ex- a joint oonvention1 this same jill.nt What I think, sir, there is one fact which the Legislature .of a State objections have ever been made to the legality of his right while are judges of, 1IDd only '{)ne thing, in a Senatorial election; they he has been .acting here? Th~ Mr~ Dubois, quoad hoc, .as far I are judges of j,h-e election and qualification of their own members, ' as these things are concerne-d, is also a lawful Senaror. and being 'Such judges they may determine ~bsolutely who shall Now., wh-at !is meant by the term ''organization?"-' I do not constitute the members of the two houses, and in determining think the word in the statute <>f 1866 has any special local or pro­ that they determine also who shall constitute the members of the vincial meaning. It is claimed here under this construct ion that joint convention, and that is the only thing that they can judge. the term " ·organization" applies to the .officers of the two h-ouses, We judge of everything else. and that the two houses must judge of the organization. What Will it be contended that this body is not a judg.e of the.elec- would be the effect of suchan~djudication,ofsucha judgment by tion and quali£oation oi its own ·members? How then shall we 'US? The effect w-ould be to break down the practic.e entircly of judg'B of th-eelectionof our own members under the act of 1866 or ' cleeting hy joint convention and tovitiatewhollythe act of 1.866. the traditional mode pursued ibefore the adoption of the act? ln 'Such a easel. wherever the two houses differed politically with In the first place, we must determine where the election oc- respect to suell an election, one af the houses w-ould delay .any curred, ·as that of Mr. Dubois di~ in a joint con-v-ention; we must declaration of <>rganization, and migh t ·even go so far as to declare determine with :res~ to the validity of such joint convention . itself unorganized in order to def-eat a Senatorial election. and the time at whiCh it was held., and the steps precedent to its 'We know what the :strength .of -partisan motives and purposes organization. in ·order, then, to ·determine the validity of this is, and if we abdicate our own authority .and do .not perform the joint convention wemustdeterminewhether necessary steps were duty deyolved on us of judging when the •Organization occurred taken to form it on the day after the second Tuesday after the and what the organization is~ the State senate -or lhonse would meeting -and or~a.nization of the Legislature. We must deter- refuse to .elect a doorkeeper until the time of the electt-on was mine then, in determining the day after the ini1ii.al day of the . pushed beyond a legislative session, and the fGrm.ation of a joint proceedings of the joint rconvention, when the second Tuesday , convention would always depend upon the action of >One -of the and when \the fi.Tst'J'uesdayoccurred, andespeciallywhen the or- houses, the very thing which the :statute intended to guard ganiza.tion 'Of the two houses oc.curre-d, and to determine that we against, and it would be determined by a question about woother must determine what the organization of the two houses is., what the house of representatives of Idaho bad yet elected its chaplain, is the very act that constitutes the organization of the two houses. because without a chaplain the organizati"On is not complete~ he When we have reached that point then the question is, when did is one of the office"!'B, it seems, of the Legislature of Idaho. the ·O ganization transpire? We judge of these things because I do not think that the term ''organiza.ti<>n" in the act, as I it is necessary for us in order to adjudicate the 'One thing, the le- have said befo~ has any provincial or local meaning. If you gality of the election in this case. give it such meaning as that, if it has such s:ignificance, then Now, sir, there are a number of objections taken to this elec- · organization, theactoforganization, would denominate, describe, tion which apply with equal forne to Mr. McConnell and Mr. and be defined by a. series of actions as variant as the numbers SHOUP. For example, it 1s said that on the day when the two of the States-forty-four. There would be forty-four different houses met separately they only voted once, when it is ·elaJmed meanings of the word -organization, forty-f-our varian11 descrip­ they ought to have voted three times, because there were three tions '{)f acts which constitute organ.i.zation, for in our Legisla­ Senators to elect. That is an objection taken to the validity of ture we have only a principal clerk and assistants, a doot~keeper, the joint convention. Then, again, it is said in the manner of an and a sergeant-at-arms. Many of the States have not even so objection 'also they ilid not determine when they voted fo:r what many officers. Some of th-e States have no sergeant-at-arms, Senator they voted, whether it was for the long term or for the some -of the States have no doorkeepers, and those two offices short term or the term to fill the v.acancy occurring on the 3d of -are consolidated. March, 1891. Th-at is an objection also to the validity, as they The majority of the States h.avenosuchofficeraschaplainoras claim,o.ftheproceedingsofthejointconvention. Itisalsoclaimed doorkeeper, and by law no such officer .as .a journal clerk; he is th.at the houses passed reBolu~ions for a jointconvention, making simply assistant of the principal secretary. I do not think there no mention of a third Senator. are two States in the Union in which under this interpretation Now, sir, to begin with, I do not think that the two houses, "organization·" would mean the same. I do not recall any two after they have held a. separate meeting and taken a vote,· if States in the Union which, in respect to -officers of legisl~tive they do so, have anything to do further as houses with the joint bodies, are alik~ ~onvention. It makes no difference whether they passed a reso- I reject, then, that interpretation, not warranted by the lan­ lution or not. The joint convention does not depend upon the guage, not warranted by the specific term used, and especially action of the two houses, and after the houses have -once failed unwarranted by the purpose and object of :the act of Congress, to hold proceedings or failed to elect; the joint ·convention is . which was certainly amongst other things to enforce, as far &s created by th13 act of Congress, and whether they passed a reso- 1 Federal legislati-on could do it, uniformity in the proceedings in lution for one, two, or three Senators, or whether they passed a el-ecting United States Senators, whether it was done by the resolution at all, whethBr the house invited the senate .or the action of the two houses or by a joint convention composed -of senate invited the house, or whether there was any movement, the m~mber.s of both. _ · TeciproqaJ. ur otherwise, between the two bodies with respect to I think the conjunction "or" in the statute, quoted in 'One :of th-e joint -convention, is wholly immaterial. It ~ was the duty of these briefs, in which it is said that "if they have failed to elect every member cl each house to meet, under the act of Congress, 'Or have failed to take proceedings" connects disjun-ctively two and organize the joint assembly. altern~tives which are precisely th"B equivalent in -effect of ,each .But if there was anything in the validity of these objections, I , ()ther. The same oonsequence follows whether there is no -eleo­ -wish lor '8o moment to -call the -a.ttention of Senarors to -our posi- tion by the meeting, and the separate voting -of_the two houses, tion on them. Mr. MeOonnell must be congratulated. He has · or whether there have been no proceedings taken to have a sep- 1400 CONGRESSIONAL RECORD-SENATE. FEBRUARY 24, arate vote of the two houses. The alternatives are precisely When, then, is such a body organized? In other words, when equivalent and coincident in meaning. I think every successive is it placed in a state of readiness to exercise its functions? I step unsuccessfully taken is comprised in the word failure, and find here in the journal of the two houses that on Monday, the every successful step in the case of election is comprised in that 8th day of December, all the members of the house met-their word, and whether there was one ballot, or two ballots, or three nanies are given here-in the hall at the capitot, that they ap­ ballots, or no ballot at all taken, or no meeting held of the two peared severally and were qualified by one of the justices of the houses separately, neither of these affects the validity of the supreme court, and took their seats. I find also upon page 30 of joint convention. the same book that all the members of the senate on the same , I have heard the expression used here that this section seemed day, Monday, the 8th of December, at the place appointed bylaw, to imply compulsory action to hold a separate meeting of the two appeared, were qualified, and took their seats. houses and to hold a joint convention. I do not think the statute Now, sir, that was not only a perfect organization, but a full is compulsory at all. I do not see how it can be. There are no organization of both houses of the Legislature of the State of pains and penalties prescribed. Recollect, Senators, we are deal­ Idaho. The moment a quorum appeared and were sworn there ing here with -the Legislature of a sovereign State-! will not was an organization; there was a perfect organization. Nothing apologize for using the word-and it is impossible physically to could be added to it. Nothing could be added to its powers or compel either of these meetings. It would be a much better in­ its functions the moment the call passed the quorum number; terpretation to say the object and purpose of the statute is in the but here was something more. There were no absentees; the first instance to give to the houses separately a chance to elect, whole body appeared; and that is the reason that it was not only but if they will not avail themselves of that opportunity, to give a perfect but a full and complete organization of both houses. to the majority of the two houses an opportunity to elect. It is I know Senators say, "Wb.y, certainly this can be no organi­ a most liberal statute, without compulsion, and I think without zation; they must go on and elect a secretary, a doorkeeper, a mandate or direction, except that substantially it should be obeyed sergeant-at-arms, and a chaplain; that is one of the functions of by the Legislature. the house." But what is the house? The house is the body or­ Now, if Congress had gone on and expressly prescribed that ganized. Can a body unorganized choose a doorkeeper, choose the failure of one house should justify the subsequent holding of even a speaker? If they can, let us look at the consequence.of a joint assembly, I would say that would be sufficient, for in con­ that position. To assume that anything but the organization struing these two alternatives connected by" or" I would reason, can choose the speaker, the doorkeeper, or any other officer, is afortim-i, if the failure of one house causes the joint assembly to to assume that the Legislature can add to its own number. be called, the failure of two houses can do no less. If the failure I know it is yery common on the first day of the session to of one hous·e is a basis for the organization and existence of the choose these officers, but before they are chosen the functions joint convention, the failure of both would certainly have no less under the constitution and powers of the Legislature are defined, effect. and defined as belonging to the house or to the senate; that is, a. But Congress has not left this matter indefinite. It has not quorum of either of these bodies. What additional function or left even a corner for a doubt in the language of the act, for in power or authority or what increase of either is given to the one of these alternatives it is said "upon the failure of either house or to tire senate by the election of a doorkeeper or a chap­ house." In this discussion I have heard it said either means lain? You say these are constituent parts of the organization one. Either means one of two. I do not believe that either and that the organization can not be completed without the elec­ ever means one, or that it means one of two only. "Either" tion of these officers. I ask what part of the legislative function always implies two, at least, and it includes both where the con­ dO'ei ther of these officers exercise? What part of the lawmaking text is confined only to two objects or subject-matters. "Either" power is confided to or devolved upon the doorkeeper, upon the can not be used with respect to one house or any other object, chaplain, upon the janitor, upon the journal clerk?" and hence it is never used with respect to the unit absolute. The constituent members of an organization must all be en­ The Christian can not say in reference to the SuJ?reme Being, dowed with equal functions. When we find a person outside of "either God." It is a contradiction in terms. Neither can any the organization, having none of its functions, he must be con­ one correctly say in speaking of the principal luminaries of the sidered as a stranger, extraneous to the organization, foreign to solar system, "either sun" or "either moon." They may speak the body, entirely foreign to it. I might, sir, hold, in case it of "either moon of Jupiter," because there are several; of were necessary-it is simply obiter here in this ease-l might hold "either star," because there are many in the firmament; of that an organization of a legislative body was not complete until ''either pole," with reference to the extremities of the earth's a presiding officer was chosen; but I would not hold it on the axis, because there are two; of "either tropic," for the same rea­ ground that the choice of a presiding officer was necessary to son; but you can not say" either equator." The ~e of the term complete the organization, because I know that nothing but the "either" with reference to a single subject-matter is thus shown organization can make such a choice. Less than the organiza­ to be contrary to the very genius of the language, as well as to tion can not do it; less than a quorum can not do it. But I would the usus loquendi. It is wholly inadmissible. I think that Con­ hold, under certain circumstances, that the presiding officer of gress has prescribed by the strongest intendment three things either house was a part of the organization, and might be so upon the failure of the house, or the failure of the senate, or the called because he was so nearly related to, and so closely con­ failure of both house and senate to take proceedings or to elect, nected with the organization, and always a member of the house; the joine convention is in either conjunction of circumstances at all events, that he might be considered as a part of it; but I called into existence and authorized to supply their default. would go no further, sir. But it is said, sir, that this joint convention must be held on After the house had met and chosen a speaker and after the sen­ the day after the second Tuesday after the meeting and organi­ ate had taken the oath and been qualified and the lieutenant-gov­ zation of the Legislature. What, then, is the organization of ernor appears, authorized under the constitution of the State to the two houses? The word is used here as it always is in statutes preside, the organization of each of those houses is complete and when it is not otherwise expressed. It is used in its ordinary perfect. The most definite and concrete description of organi­ signification, just as you would s:peak of the organization of any zation, in fact it is the interpretation of the term given in law other public body or the orgarusm of the human body, of any writers and in legislative writers, is the quorum. The quorum body which is composed of members, of any entity necessary to is the house, the number necessary to transact business, to elect which there is a composition or organization. It is defined to officers, and exercise all other functions; and the house in that be the putting in readiness of apublicbodyfor operation, for the meaning must be in existence before any of these functions can be exercise of its functions. Organization does not imply, neither exercised. The quorum is the house; the house is the organiza­ does it require, any exercise of function. It is wholly indifferent tion; the quorum is the organization; and in this case the quorum whether the Legislature of Idaho passed a bill or offered to pass in both houses appeared on the first Monday, the 8th of Decem­ a bill or did anything else after they organized. ber. The Legislature, I was going to say, by which I had the honor This may be shown by the succeeding history of legislative of bein~ chosen passed no law. There was a deadlock from the bodies. Supposing all the members appear, ora quorum appear beginnmg to the close of the session, but nobody doubied that on the first day of the session, and there is an organization, yet they could have passed laws if they had wished to. The question some time afterwards the organization may be interrupted and is not whether the Legislature passed any laws or elected any the !unctions of the body may be temporarily suspend,ed. How? officers or did any legislative act, but whether it was in the con­ By an absence of members large enough to leave not a quorum dition to exercise its functions, whether it was in astate of readi­ in the body. What follows? How shall the function of legisla­ ness to exercise its functions, and these functions are not declared tion be restored? How sh&ll the suspended organization be re­ or defined by the Legislature and do not depend on any action of newed? There is no other way, except to procure the attendance the Legislature. They are defined and declared in this case by of absentees up to the quorum line. the constitution of the State of Idaho and conferred upon a cer­ But you say that the employes are necessary to an organiza­ tain number of persons chosen by the people, who meet at a cer­ tion and are parts of the organization. Would it do any good in tain time and place. the absence of a quorum to suggest to the presiding officer that

- 1892 . . CONGRESSIONAL RECORD-SENATE. 1401 t_he Secretary is in his seat, the Chief Clerk is in his seat, the from any .correct interpretation of this clause, officers, as they Sergeant-at-Arms is in his chair, and all the employes of the are sometrmes called, are wholly excluded. Sen~te are present? I do not think it would amend the matter The term" temporary organization" and'~ permanent organ­ at all. I have heard of many ways of counting a quorum, but I ization," as it is used relating to officers, means nothing at all, P,ave never heard of a presiding officer within the metes and and has no relation to the act of 1866. All theoffi"cers, as has been bounds of 'Civilization who counted the employes to make one. remarked here, of a legislative body are transient, temporary; f'Laughter.] Why are they not to be counted if they are part of none of them are permanent. You may say the Senate is per­ the organization, constituent parts of the body, necessary to its manently Or!!anized to-day, and so it is, because there is a quorum 9rganization, without which 1t can not act, and the gentlemen present, not because there is a Secretary and a Sergeant-at-Arms say without which its functions are lost? Why may they not be here, for we can remove those officers at anytime. -There is no counted? But supposing we have gone on and procured the at­ reference in the clause to the officers of either House. tendance of members up to the quorum line and we look around The permanent org-anization refers to the organization with­ and find the employes all gone. Does that interfere with the out any adjective. The organization of a legislative body re­ legislative functions? Not a moment. I do not care, sir, if the lates only to its members; and when enough of its members presiding officer were gone; we would supply his place and every meet and are qualified, the organization is perfected and com­ other in thirty minutes. pleted. I must ask Senators a moment to contrast this inter­ So that it will be seen as to these parties held to be necessary pretation with that travesty which has been sought tO be forced and constituent elements in an organization that neither their upon this body in respect of the meaning of this term.- "Organ­ presence nor their total absence affects the legality of the organ­ ization,"meaningthequalification and the admission of a quorum iZation or affects its functions in any way whatever. Yes, sir; or all the membership of a legislative body, is an act everywhere we may elect officers of the house at any time, but we can not known, recognized, acknowledged, and always under all circum­ elect constituent members; we can not choose them. They have stances and in all places the same. It is the same ceremony. to be sent for. There is this distinction between attaches and The act of org-anization of the Legislature of Massachusetts un­ instrumentalities and constituent parts of a legislative body or der this significance is the same a-s the act of organization of the any other public deliberative body. They are to be chosen by Legislature of Idaho. The newest and the oldest States both our masters. As to the tools, the instruments-! wish to speak comply with it. It is the same in California as it is in Maine. with all respect-as to the means of carrying on the exterior It is the same all over the free political world wherever the phrase labor and the work of the organization, of course the secretary "free parliament" has had course-and it has had magnificent is the pen, the sergeant-at-arms is the hand and shoulder, and course since 1688,. when it was first used-wherever this phrase the doorkeeper may be the shovel and broom, but they are not of a "free parliament" is used among English-speaking people, parts of the organization. this act of organization, and none other, that is, the appearance The human body is a very complex organization. A man might and qualification of members of a legislative body, is confessed be in such circumstances as to be compelled to 'Write, and he might and acknowledged as the beginning of legislative life, the com­ say: "I can not write. I am willing to write; I am able to write; mencement, the origin of organized parliamentary existence. I know how to write; but without pen and ink and paper I can Mr. MANDERSON. I move that the Senate do now adjourn. not write." Does it follow, then, that this pen, ink, and paper Mr. HISCOCK. I wish the Senator would withdraw that. to are a part of the human organism, although they may be very allow me to make a motion to proceed to the consideration of ex­ necessary to the exercise of some things which are imposed ecutive business. The PRESIDING OFFICER. Does the Senator from Ne­ upio~~! issue with gentlemen who say it is impossible to legis­ braska yield to the Senator from New York? late until officers are chosen. We may simply by designation, as Mr. MANDERSON. I yield for that purpose. the Senator occupying the chair now occupies it in this manner, Mr. HISCOCK. I move that the Senate proceed to the con­ authorize any member of this body to perform the duties of the sideration of executive business. highest officer in it. Why not, then, designate members to per­ The motion was agreed to; and the Senate proceeded to the form other inferior duties, one at the desk, one at the door. I consideration of executive business. After five minutes spent in have frequently seen a member of a legislative body carrying a executive session the doors were reopened, and (at 4 o'clock and message either to the governor or to the other house, engross his 52 minutes p.m.) the Senate adjourned until to-morrow, Thurs­ own bill, enroll it, and read it at the desk. I am certain there is day, February 25, 1892, at 12 o'clock m. no duty performed here by an officer which can not be performed by a member. There is no such thing as an· absolute necessity for any officers. They are wholly matters of convention and con- NOMINATIONS. venience. , Executive nominations 'received by the Senate Feb1·uwry 24, 1892. These views, sir, are very well supported, if they needed any RECEIVER OF PUBLIC MONEYS. support, by a somewhat careful analysis of part of the first clause Charles F. Gardner, of Sacramento, Cal., to be receiver of pub­ in the section relating to the formation and action of the joint lic mpneys at Sacramento, Cal., vice John F. Linthicum, term assembly. It is said that: expired. On the second Tuesday after the meeting and organization of the Legis­ lature. NAVAL CONSTRUCTOR. Now, sir, it seems to me it must be con,cededin that clause that Assistant Naval Constructor Samuel W. Armistead, a resident "meeting" refers to the Legislature and that organization refers of Virginia, to be a nav8.1 constructor in the United States Navy. to the Legislature. To supply the ellipsis there made by the word ''and," it would be meeting of the Legislature and the or­ ganization of the Legislature, or the meeting of the Legislature CONFIRMATIONS. and the organization of the same. The same body meets which Executive rwm.inations oonfir'Yfl.ed by the Senate February 24, 1892. f)rganizes, and the same collection of persons organize who meet. ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY. Now, sir, I can very well understand how members elect of a Rowland B. Mahany, of New York, to be envoy extraordinary legislative body can meet each other at the capitol under ap­ and minister plenipotentiary of the United States to Ecuador. pointment and in accordance with law, make each other's ac­ quaintance, be recognized, be identified, meet the officer who is CONSULS. charged with their appearance and qualification, and meet the James Leitch, of Louisiana, to be consul of the United States general public, which generally assembles on the first day of the at Belize. session to witness this ceremony. I can conceive that very well Charles W. Erdman, of Kentueky, to be consul of the United with respect to members; but how are the doorkeeper, the sec­ States at Breslau. retary, and the sergeant-at-arms to meet at this time? Why, it is not known who they are. What credentials have they, what COMMISSIONER OF NAVIGATION. commission, what certificate? How can such creatures-! use Edward C. O'Brien, of New York, to be Commissioner of N av­ the word with all possible respect-as these meet before their igation. creation? They are not even created; they are not even in ex­ COLLECTOR OF CUSTOMS. istence; ,.and yet it is very certain that the members must meet, Charles F. Roberts, of California, to be collector of customs and that the same persons meet as those who organize. for the district of Humboldt, in the State of California. This word "meet" is used in all the statutes and constitutions of the States in respect of the time when the Legislature shall ASSISTANT APPRAISER OF MERCHANDISE. come together. It refers always to the members of the Legis­ Robert E. Browne, of New York, to be assistant appraiser of lature. The word "organization" rightly interpreted in this merchandise in the district of New York, in.the State of New clau~ refers to the same persons. It will be seen, therefore, that York.