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Group Title: Did the Florida Legislature of 1891 elect a Senator? : opinion of Gov. F.P. Fleming
Title: Did the Florida Legislature of 1891 elect a senator?
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Title: Did the Florida Legislature of 1891 elect a senator? Opinion of Gov. F. P. Fleming
Physical Description: 22 p. : ; 23 cm.
Language: English
Creator: Fleming, Francis P ( Francis Philip ), 1841-1908
Publisher: Floridian printing co.
Place of Publication: Tallahassee Fla
Publication Date: 1891
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Full Text


-~F;- :-J L


DID THE 1




FLORIDA LEGISLATURE
*4


OF 1891


ELECT.A SENATOR?

Id~LA4E c&taj


OPINION OF


GOY. F.


P. FLEMING.


TALLAHAtlKB, FLA.:
FLORIDIAN PRINTING COMPAIT.
1891.


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DID THE





FLORIDA LEGISLATU




OF 1891




ELECT A SENATOR?


0 INION OF GOV. F. P. FLEMING..










TALLAHA88EB, PLA.:
FLORIDIAN PRBITING OOM'PANT.
1891.







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/



THE FLORIDA SENATORSHI



EXECUTIVE DEPARTMENT,
TALLAHASSEE, FLA., August 4, 1891. f
To the People of Florida:
The term of office of Hon. Wilkinson Call, as Uni
States Senator from Florida expired March 3, 1891.
therefore became the duty of the Legislature of Flori,
which convened on the 7th of April, 1891, under the
visions of law, to elect a United States Senator to fill
vacancy caused by the expiration of Senator Call's term,
Section 18 of the Revised Statutes of the United Sta
provides-: "It shall be the duty of the Executive of
" State from which any Senator has been chosen to cert
" his election, under the seal of the State, to the Preside
" of the Senate of the United States."
The question now presented for my consideration
determination is whether there was an election of a Uni
States Senator by the said Legislature, so as to devol
upon me the duty of certifying the same to the Presid
of the Senate of the United.States.
The facts, as to which there is no dispute, so far as I
advised, are as follows: On April 21, 1891, being
second Tuesday after the meeting and organization of
Legislature, the Senate and House of Representatives,
in its own chamber, voted for a.United States Senator, l
in neither house did any one receive a majority of t
whole number ot votes cast. On Wednesday, April









the two houses convened in joint assembly, and the journal
of each house was read, and, it appearing that no person
had received a majority of the votes in each house the'
joint assembly proceeded to take a vote for United States
Senator, but no person received a majority of all the votes
of the joint assembly. The joint assembly continued to
meet at 12 m. each succeeding day and took at least one
vote, without electing a United States Senator up to and
inclusive of Monday, May 25, 1891. On Tuesday, May
26, there was not a quorum of the Senate present in session,
the whole number of the Senate being 32, and a majority
being necessary to constitute a quorum. At 12 o'clock m.
of that day the President of the Senate and 14 other Sen-
ators entered the hall of the House of Representatives and
were received by the House. Roll call of the joint assem-
bly disclosed 16 members of the Senate present and 39
members of the House of Representatives, being a minority
of the Senate and a majority of the House (the whole num-
ber of the House being 68.) A ballot was then taken for
United States Senator, whereupon Wilkinsonr Call re-
ceived 14 votes of the members of the Senate preAent and
37 votes of the members of the House present, and D. H.
Mays received one vote of the members of the House. The
whole number of votes cast was 52, of which Wilkinson
Call received 51 and D. H. Mays received 1; whereupon
the presiding officer, the Hon. Jefferson B. Browne, Presi-
dent of the Senate, announced that Wilkinson Call, having
received a majority of all the votes of the joint assembly,'
and a majority of all the members elected to both houses
being present and voting, is duly elected a United States
Senator from the 4th of March, 1891. No other ballot for
Senator was had during the legislative session.
Subsequent to the ballot taken on May 26th, and before
the adjournment of the Legislature, a paper was filed with
me signed by 15 members of the Senate and 26 members of
the House, claiming and arguing that under the facts Wil-








kinson Call was not elected United States Senator, as a
nounced by the presiding officer of the joint assembly, am
protesting against the issuance of a certificate of election |
him.
Subsequent thereto 15 other members of the Senate ar
37 members of the House signed ard filed with me a papa
setting forth the facts and claiming that Wilkinson C~1
was duly elected United States Senator on May 26th, an
embracing an argument to sustain such claim.
The question of the election of Mr. Call is limited to th6
inquiry whether a majority of each house, which is necqe
sary to constitute a quorum, must be present and parti4i
pate in the joint assembly ih order to elect a United State
Senator; or whether a majority of the House and;'
minority of the Senate, a quorum of one and le
than a quorum of the other, may meet in joint asses
bly and .elect a Senator, provided a majority of all t44
members elected to the two houses, in the aggregate, i
present and voting.
The Constitution of the United States, paragraph 1 9
section 8, Article I, provides the Senate of the Uniti
States shall be composed of two Senators from each State
chosen by the Legislature thereof." Paragraph 1 of section
4 of the same article provides that the times, places a4ri
manner of holding elections for Wsators and Representh
tives shall be prescribed in each tate by the Legislatup
thereof; but the Congress may at any time by law make i
alter such regulations, except as to the places of chusin
Senators."
There was no legislation by Congress on the subject un
til the act of July 25, 1866, which constitutes sections 14
15, 16, 17,,18 and 19 of the Revised Statutes.
I will only refer at present to that portion of the aol
providing for an election by the joint assembly of bof
houses after the failure to elect by separate vote in eaco
house on the first day of balloting, which is as follow!
(









"But if the same person has not received a majority of the
"votes in each house, or if either house has failed to -take
proceedings as required by this section, tie joint assembly
shall then proceed to choose, by a viva voce vote of each
member present, a person for Senator, anA the person wh&o
"receives a majority of all the votes of thi joint assembly,
"a majority of all the members elected to both houses being
"present and voting, shall be declared duly elected. If no
person receives such majority on the first day,the joint as-
sembly shall meetat 12 o'clock meridian of each succeed-
ing day during the session of the Legislature, and shall
take at least one vote, until a Senator is elected."
The requirement of the Constitution of the United
States is plain and positive that Senators from each State
shall be chosen by the Legislature thereof." What con-
stitutes the Legislature? This question is answered as to
Florida by section 1, Article 8, of the State Constitution,
in the following language: "The Legislative authority of
"this State shall be vested in a Senate and a House of Repre.
sentatives,which shall be designated, the Legislature of,
a' the State of Florida.'" Section 11 of Article III of the
Constitution provides that "A majority of each House shall
constitute a quorum to do business, but a smaller number
may adjourn from day to day, and compel the presence of
"absent members in su m anner and under such penalties
"asit may prescribe."
The Legislature of this State, as shown above, is com-
posed of the Senate and House of Representatives, neither of
which is authorized to do any business whatever without a
majority which constitutes a quorum, except to adjourn
from day to day,'and to compel the presence of absent
members. Neither exception involved the authority for
less than a quorum of eacl house to participate in the elec-
Stion of a Senator, which is eminently a part of the busi-
ness of the Legislature, as much so as the passage of a bill,
the adoption of a resolution, or the election ot a legislative








officer, whicn nothing less than a quorum of each ho 's
permitted to transact. N o other conclusion can be rea
without a disregard of the provisions of the Constituti f
Florida.
The requirement of the Constitution of the U
States that Senators shall be chosen by the e
evidently means a valid constitutional legislature consi g
of two houses acting by a quorum of each. .
The Hon. Geo. McCreary, late Judge of the U
States Circuit Court, formerly Chairman of the Comm e
of Elections of the United States House of Representati ,
in his work on Elections, Section 115, says: Under t
" lause of the Constitution providifig that Senators m
"'chosen by the Legislature' of each State, an election f
" Senator, to be valid, must be participated in by both ho
" of the Legislature in their organized capacity. It isc t
"enough that a majority of the members of each sh& d
"participate." The cases of Harlan and of Bright and h
are cited to sustain the text. These cases will be consid d
hereafter.
In People, ex rel. Upham vs. Whiteside, 23 Wende 9,
the court held that "When the power of appointment a
" certain class of officers is given by law to two di ct
"bodies who are required to assemble in separate cha r
" and make separate nominations and then meet together d
"compare the nominations made, and on disagreement to
" proceed to an election byjoint ballot: no election is id
" unless both bodies assent to go intojoint meeting for at
" purpose and actually attend.
"Nor is the removal of an officer valid unless there a
" like assent and attendance, although one of the bodi e-
"fuse to go intojoint meeting after due notice given to m
" for that purpose."
The same principle is decided in King vs. Butl 8
East. 139.
The argument in behalf of the election of Mr. Call n-







8
tends that whatever may have been the requirement prior
to the passage of the act of 1866, that under the provisions
of this act it is not necessary that both houses' should be
present in their organized capacity, but that such act only
requires that the members of the two houses should meet
in joint assembly, and that less than a majority of one
house may meet and act with the other, provided there is
a majority of all the members elected to both houses pres-
ent and voting. It is further argued that the validity of
this statute is recognized by the Constitution of the State
of Florida, Article III, section 81, which provides that "the
Legislature shall elect United States Senators in the man-
ner prescribed by the Congress of the United States and by
this Constitution.'" To sustain their position they cite the
following extract from the report of the Coommittee in the
Eustis case, (Taft's Senate Election Cases, 508;) "Your
committee find that although the Senate refused to take
part as such in said Election, and although a minority of
the Senate only did take part in it, yet there was a sub.
stantial compliance with the act of Congress of 1866. Up-"
on the constitutionality of that act, your committee ex-
"press no opinion. The Senate has repeatedly, however, by
its action, affirmed its/constitutionality; and your com
mittee feel bound by the precedents which the Senate has
established."
They quote also at considerable length from the re-.
port of the majority of the committee in the
Montana cases, of which, as follows: "The sug-
gestion has been made that, to elect a Senator, there must
be in existence a Legislature exercising, or at least capable
"of exercising the law making function, and that when this
"function is interrupted or abdicated, or has never been set in
motion because either house refuses to recognize and act in
concert with the other, or because the Governor refuses to
"treat either as possessed of legislative authority, there is, in
" fact, no Legislature in the constitutional sense, and, there-








" fore, nobody competent to appoint a Senator." *'
"The suggestion is ingenious but we do not think it
"bear examination." *
"This theory enables one house, or the Executive,
overthrow at once all constitutional securities for
preservation of the legislative power. It is utterly opp
"to the act of Congress prescribing the manner of the elec
of Senators (Revised Statutes, section 14 to 19). If no -
"current election be had, 'the members of the two ho
"' shall convene in joint assembly.'
"This is intended to put it out of the power of
majority of either house to prevent a choice of. a Senat
This provision we think clearly constitutional. It is in -
cordance with legislative usage in the manner of elect
officers whose choice may be prevented altogether if
"distinct bodies must concur to produce a valid result."
The following from McCreary pn Elections in secti
117 is cited:' "The principal purpose of the act of Cong
was, to deprive one house of the Legislature of the powepi
prevent an electing by refusing to go into a joiit conv
tion for that purpose."
The election cases referred to will be considered h
after. The whole section from which the quotation fr
McCreary was taken is as follows: "It is not necess
' under the act of Congress of July 28th, 1866, to regul
"the time and manner of holding elections for senators,
" Congress, that 'the election by the Legislature sho
"actuallytake place on the second Tuesday after its org
" ization.' It is enough if on that day the Legislature ta
"action on the subject, and actually votes, though unsucc
"fully, for a person to fill the office of senator. The
"lature must, however, continue to meet in joint convent"
" until a choice is reached. The principal purpose of the
'of Congress was to deprive one house of the Legislature;
"the power to prevent an election by refusing to go into
"joint convention for that purpose." The language of

'.'









learned author does not appear to be used in the same con-
nection as that by the committee in the Mohtana cases, and
S whatever may be his opinion as to the purpose of the act
"of Congress his legal reputation is too high to suppose that
he intended in section 117 to convey the idea that Congress
is competent to enact a law which would avoid what, in sec-
tion 115, he declares to be a requirement of the Constitu-
tion, that is, that an election of a Senator to be valid must
be participated in by both houses of the Legislature in their
organized capacity, especially as he sets forth in section 117
that the Legislature must continue to meet in joint conven-
tion and not a majority of the members of the Legislature.
It is more reasonable to suppose his meaning to be that the
act emphatically imposed the obligation of duty upon each
to attend the joint assembly until a choice is reached.
The Constitution of the United Statqes is the supreme
law of the land, and wherein the Constitution of Florida or
an act of Congress may be.in violation of it,-the State Con-
stitution or the act, to that extent, is void. I am not pre-
pared, however, to pronounce either Section 31 of Article III
of the Florida Constitution invalid, as in derogation of the
Constitution of the United States, or the said act of Con-
,gress unconstitutional. In each the Constitution require-
ment of paragraph 1, section 3, Article I, that Senators
shall be "chosen by the Legislature," is recognized and ex-
pressed. The language of the State Constitution being
"The Legislature shall elect United States Senators," etc.,
and the said act of Congress, (section 14, Rerised Statutes)
The Legislature of each State which is chosen next pre-
ceding the expiration of the time for which any Senator was
"elected to represent such State in Congress shall, on the dee'.
ond Tuesday after the meeting and organization thereof,
"proceed to elect a Senator in Congress."
We have the following rules of construction of stat-
utes: "The popular or received import of words furnishes
the general rule for the interpretation of statutes." (Pot-
ter's Dwarris on Statutes, 143.)







11
"Statutes should be interpreted according 'to the t
"natural and obvious import of their language." (Ibid, .)
The same rules of interpretation apply to the Cons -
tion. (Ibid, 656.)
Applying these rules to the provision of the Con u-
tion of the United States; the Constitution of Florid st
referred to, and to the said act of Congress, the "po ar
"and received" aid the most natural and obvious -
'port" of the word Legislature is that body, consisting.o o
organized houses, to-wit: the Senate and House of
sentatives,and not an aggregation of the members elect to
both without reference to the organization of either. g-
uage could not be plainer or more forcible to express h
meaning. If the framers of the Constitution intend to
provide for the election of a Senator, as contended it m be
done by the argument for Mr. Call, without the require int
of participation'by the two houses in their respect r-
ganized capacity, they would have used the words, c n
by the members of the Legislature, or words of like -
port, instead of "chosen by the Legislature."
The following language in the act of Congress: he
personn who receives a majority of all the votes of the nt
"assembly, a majority of all the members elected to th
"houses being present and voting, shall be declared ele
without reference to the preceding section of the act, oF e
Constitution would appear to be susceptible of the cons
tion contended for it in behalf of Mr. Call. But, ii y
opinion, such would be to give it a construction in viol on
of the Constitution.
"It is a. cardinal rule that all statutes are to be so n-
"strued as to sustain rather than ignore or defeat them to
"give them operation, if the language will permit, inste of
" treating them as meaningless: ut ree magis valeat, m
"pereat. Whenever an act can be so construed and ap ed
" as to avoid conflict with the Constitution, and give i e
"force of law, this will be done. Where one construction ill









"make a statute void for conflict with the Constitution, and
"another would render it valid, the latter will be adopted
"though the former at first -view. is otherwise the more
"natural interpretation of the language." (Sutherland,
Stat. Cons., section 332.)
Webster defines the word "both as two considered as
"distinct from others or by themselves; the one and the
"other." Applying this definition to the clause "a major-
"ity of all the members elected to both Houses," it may
readily be construed a majority of all the members
elected to the one house and. of all elected to the
other-a majority of each house, constituting the valid
Legilature as expressed in the Constitution of the
United States, the preceding section of the act and the
Constitution of Florida. Such construction avoids conflict
with the Constitution and harmonizes all parts of the act.
In 'the construction of a statute, every part of, it must
be viewed in connection with the whole, so as to make all
"its parts harmonize, if practicable." Potter's Dwarris on
Statutes, 144-5.
If the construction contended for in the argument for
Mr. Call is correct, it would follow as a logical sequence
that the House of Representatives, which in the number of
its members constitutes a majority of all the members
elected to both houses, is competent to elect a Senator
without participation by the Senate; and, indeed, with
51 members of the Bouse present and voting,and no mem-
ber of the Senate, and 26 votes cast for an individual (be-
ing a majority of 51) would elect a Senator. Would it be
contended by any one that such an election would be the
choosing of a Senator by the Legislature, as required by
the Constitution ?
It has been suggested, but I do not think it has ever
been seriously contended, that section 4 of Article I of the
Constitution of the United States which provides that
" The Times, Places and Manner of holding Elections for









" Senators and Representatives shall be prescribed in c
" State by the Legislature thereof, but the congress at
" any time by law make or alter such Regulations exe as
" to the places of chusing Senators," permits Congr to
depart from the requirement of paragraph 1, secti 3,
Article I, which designates the body authorized to ct
a Senator. The regulations of the time, place and m er
of electing a Senator are given, in the first place, to e
States, with the right of Congress to make or alter i ch
regulations, in no sense authorizing Congress to change he
body or substitute any other body or organization, th
Power to elect. Congress has not been delegated y
power to create ah assembly other tCan the Legis re
for such purpose. The words "manner" and regulatei "
are not susceptible of such a construction.
It is contended in the argument for Mr. Call that e
construction of the statute upon which the claim of his ec-
tion is based, is sustained by the Senate in numerous e-
cedents. I will now take up the cases which appear to ve
a bearing upon this investigation.
The first is the case of Mr. Harlan from Iowa ( 's
Senate Election Cases, 155.) which is directly in point, th
a remarkable similarity as to numbers, and was deo d
upon the identical issue herein involved.
After several ineffectual ballots, the joint convention of
Iowa, as it was termed, on January 5th, 1855, adjou d
until 10 o'clock next day. The Senate met at 9 o'c ,
January 6th, and at once adjourned until January 8th. It
did not proceed to the hall of the House in ,a body tho
15 members of the Senate attended. (The wholt bo of
the Senate was 31.) There were present a majority of e
House and a minority of the Senate-a quorum of one d
not a quorum of the other. The roll was called and a a-
jority of the members of both houses, not a majority f
each branch, answered to their names. The Speaker e-
elared that the joint assembly was regularly organized -









cording to its adjournment and proceeded to vote for a
United States Senator. Mr. Harlan received 52 votes, and
was declared elected.
I quote from the pertinent argument of Mr. Bayard in
the Senate on this case as follows: "On this state of facts,
Sthe question which I suppose to arise is, whether the Legis-
lature of a State, under the language of the Federal Con-
stitution, delegating to the Legislature the right to elect
Senators of the United States, is to be taken to mean the
individual members of the Legislature, or the body or
"bodies of which the Legislature is composed. I suppose
the term as used in the Constitution means the bodies of
which the Legislature is composed. The honorable Senator
from Georgia, if I appreciate his argument, insists that the
power being delegated to the Legislature, is vested in the
members of the Legislature, and that whenever a majority
of the members of the whole Legislature, under a law as
"that existing in Iowa, vote for a man, he is elected, though
one of the co-ordinate branches of that Legislature maynbt
vote for him, and may, as a body, refuse togo into an elec-
tion. Sir, I hold it to be a principle of law which has, I
"think, no exception that where two integral bodies are au-
'thorized to do an act, it cannot be done without the consent
"of those two integral bodies. They must both be present and
act in the matter, or there can be no validity in the act
done. This is a universal law. I can call to mind no case
"where a contrary principle prevails, whether relating to
"legislative action or corporate action. Indeed, in refer-
"ence to corporations, it has been decided over and over
"again that where there are two integral bodies who must
4'concur in an act, they must both be present and act upon
the matter as bodies, not as individuals."
It was held by the Senate in accord with the report of '
the Judiciary Committee, that Mr. Harlan was not entitled
to his seat.
It is argued that this case does not apply to the ques-








tion of Mr. Call's election because it was determined by
Senate before the-passage of the act of 1866. Such con -
tion ignores the fact that the law of Iowa, under w
such attempted election was held, was substantially
same as those provisions of the act of Congress, in acc -
ance with which it is claimed Mr. Call was elected. e
Iowa statute provided that "The members of both Ho
"shall meet in convention in the hall of the House of
' resentatives for the purpose of electing a Senatr,V'
"When the convention shall be organized as aforesaid
" members present shall proceed-to choose viva voce a S
"tor," etc. "When any person shall have received a ma -
" ity of the. votes aforesaid the president shall declare ]
"to be duly elected Senator."
An act of the Legislature passed in pursuance of -
tion 4, Article I, of the Constitution of the United Sta s
was at that time just as binding upon the Senate as was e
act of Congress when it became a law.
The next cases are those of Bright and Fitch bet n
which there is no distinction.
There was a dispute as to the facts, as shown by the
port of the Judiciary Committee of the Senate in the F h
case, as follows: (Taft's Senate Election Cases 167,) e
"committee have had the same under consideration, and
"that important matters of fact alleged by the protestan n
" connection with the manner in which the election of e
"sitting member was had are denied by him, and that it -
" comes necessary, in the opinion of the committee, to e
" the testimony of persons residing in the State of Indi ,
" for the better ascertainment of these disputed facts, r
"instance, it is, among other things, alleged by a porti f
"the protestants that 'there was no joint convention of e
" two houses of said general assembly on said day' on w h
Sthe election in dispute took place, and that minority y
" of the legally sitting Senators of Indiana participated n
" said election, which statements are denied by the sit g








16
"member; and he affirms, on the contrary, that "he was
"' elected to said ofice'by a majority of all the members com-
posing the Legislature of the State, they being then and
'for that purpose assembled in joint convention,' and that
"he was elected whilst in such joint convention by a major-
ity of the legally qualified members of the Senate of the
"State and of the legally qualified members of the House of
Representatives, respectively. For the proper ascertain-
"ment of these contested facts, and the better elucidation of
the matters in dispute contained in the several protests
herewith submitted, and the reply of the Hon. Graham N.
"Fitch, your committee recommend that leave be given to
take testimony in the City of Indianapolis and state of In-
diana, and recommend the adoption of the following res-
"olution."
The resolution provided for the taking of testimony as
to the disputed facts.
There was a resolution finally passed authorizing the
taking of testimony in the case. The testimony was
taken and the committee reported that Graham N. 'Fitch
and Jesse D. Bright, Senators returned and admitted from
the State of Indiana, are entitled to their seats.
The findings of facts are not stated in the report t of the
committee, nor is the testimony reported in Taft's Election
Cases to which I refer. But from the report of the com-
mittee sustaining Mr. Fitch, it is reasonable to suppose
that his contention as to the facts was sustained.
Mr. Eustis from Louisiana was admitted to his seat in
December, 1877, upon an election by the House of Repre-
sentatives and a minority of the Senate. The committee,
in their report (Taft's Senate Election Cases, 508,) say:
" Your committee find that although the Senate refused
" to take part as such in said election, and although a minor
" ity of the Senate only did take part in, it, yet there was a
" substantial compliance with the act of Congress of 1866.
"Upon the constitutionality of that act your committee ex-







17
Press no opinion. The Senate has repeatedly, however',
"its action, affirmed its constitutionality; and your com
* tee feel bound by the precedents which the Senate
" established."
The implied doubt in the minds of the committee at
the constitutionality of the act, in a substantial compel
withwhich they report Mr. Eustis elected, although o
a minority-of the State Senate, participated, is signifi .
The Senate may well have affirmed the constitutionality f
the act without holding such election to be valid.
committee close their report with the following paragra :
"This seat has long been vacant. Mr. Eustis is the
"person who appears to claim it. The lawful character
" the Legislature which elected him is admitted. His
"tion was substantially in compliance with the law of
" gress. No one appears to contest his right to a seat.
"der these circumstances your committee believe that
" Eustis should be admitted to the Senate, and report a
" lution to that effect and recommend its passage."
The fact that the seat had long been vacant and t t
there was no contest for it doubtless had much weight
the committee and the action of the Senate in seating
Eustis.
W. P. Kellogg and H. M. Spofford each claimed to e
elected by the Legislature of Louisiana, which conve
in 1877. A majority of the Committee on Privileges
Elections reported in favor of Mr. Kellogg. While s
report shows that Mr. Kellogg was elected by a joint -
sembly composed of a majority of the House and a mi
ity of the Senate, the constitutional objection to such
election does not appear to have been raised. The
question considered and treated by the reports of the -
jority and minority of the committee, which cover m
pages, involving the heated political controversies wh
grew out of the elections of 1876, was which was legal t
the two rival bodies each claiming to be the Legislat
r; \









one known as the Packard, or Republican Legislature,
and the other the Nicholls, or Democratic Legislature.
The former claimed to have elected Kellogg, Republican,
and the latter Spofford, Democrat, to the Senate.
Some appreciation may be had of the confusion and po-
litical excitement involving the condition of affairs out of
which the contest arose by the following from the minority
report:
An election was held in the State of Louisiana on the
7th day of November, A. D. 1876, for a Governor and
"members of the Legislature. Francis T. Nicholls and
SStephen B. Packard each claimed that he was elected
Governor at that election, and on and after the 8th day of
January last each claimed to be the Governor of that
State. Two rival bodies of men composed of persons
"claiming to have beeq elected at that election were or-
" ganized on the 1st day of January last in the city of New
"Orleans, and each claimed to be the lawful Legislature of
" the State, one of these bodies commonly called the Nich-
"'olls Legislature' and the other the 'Packard Legisla-
"'ture.' This conflict of claim, aggravated by the recol-
"leetions of like repeated contests in the past, produced
"general angry commotions among the contestants and the
"people which seriously threatened the peace of society
"and a state of anarchy. Detachments of the army of the
"United States were employed for many weeks lo preserve
" the peace and prevent bloodshed. It will not be denied
" that the people of that State of all classes and conditions
"were profoundly and fearfully agitated."
Mr. Kellogg was seated by a strict party vote. Such a
case is of but little value as a precedent.
As another instance resulting from the confusion and
fierce political contests which grew out of the elections of
1876, Messrs. M. C. Butler, Democrat, and D. T. Corbin,
Republican, were rival claimants for the seat in the United
States Senate from South Carolina. The controversy arose








as to which of two bodies was the legal House of Repr
sentatives. One known as the Wallace, or Democrati
House, presided, over by Speaker Wallace, recognize
Hampton as Governor. The other.known as the Mackey
or Republican House, presided over by Mackey as Speakei
recognized Chamberlain as Governor. The Wallace Houi
and a minority of the Senate (11 members) elected Butlei
and the Mackey House (claimed by the Democrats to be i
minority) and a quorum ot the Senate, elected Corbin. T1i$
credentials of both claimants were referred to the Commit
tee of Privileges and Elections.
Before the report by the committee Butler's case wai
withdrawn from their consideration and he was seated bi
a vote of the Democrats, with two Republican members-,
Messrs. Conover and Patterson. The reasons for the with
drawal of this case from the committee by the Senate do nel
appear in Taft's Senate Election Cases, to which I have ref
erence. The same Democrats who voted against the seating
of Kellogg voted to seat Butler, and the same Republican]
who voted to seat Kellogg voted against the seating ad
Butler, with two exceptions above mentioned.
Corbin's case was afterwards reported by the committee
The majority report in his favor, reported that he was 16
gally elected by a majority and quorum of both house
and that Butler was not elected, stating, among pther rei
sons, "But admitting all that is claimed by Mr. Butler fiu
"the Wallace House at Carolina Hall, that it was lawfully
"organized and had a quorum of the House present, stilt
" while this would invalidate Mr. Corbin's election, it would
"not make valid Mr. Butler's election. The single ana
"isolated House of Representatives of South Carolina can
"not, by any process of reasoning, be held to constitute tht
"Legislature of the State. The Constitution of that Stato
" requires a Senate and House of Representatives for thal
"purpose, but the Wallace House had no Senate to recog
"nize it. It stood isolated and alone, and so standing, it










"could originate no lawful action. It could no more elect a
" Senator than it could enact laws."
This position was taken by the Republican majorityof
the same committee, composed of the same members,,which,
in the Eustis case, reported in his favor ard declared that
they express no opinion as to the constitutionality of the
act of Congress, and the same majority personally of the
same committee that reported in favor of seating Mr. Kel-
log, who, they found,'had a majority of the House but not
of the Senate.
The Democratic minority of the committee in the Cor-
bin case reported against his election because they say both
"in fact and in law, therefore, 59 was not a quorum of the
"house to do business, and Mr. Corbin was not elected by a
"legal Legislatire."
Theytook the position as to Mr. Butler that the action
of the Senate in seating him was rea a4judicata.
Thus we see the Republican majority of the committee
declaring that Butler was not elected becanue the Senate, as
an organized body did not participate, and the Democratic
minority declaring that Corbin was not elected because the
House with a quorum did not participate; each division of
the committee practically holding that a quorum of each
house is necessary to participate in the election of a S8nator.
Within a few days after the reports were made and be-
fore action thereon by the Senate, Mr. Corbin withdrew his
claim and no further action was had.
In the Montana cases we again find the contest as to
which'was legal ot two rival legislative bodies, which were
also divided by party lines-one known as the Iron Hall or
Republican house, and the other the Court-house or Demo-
cratic house. The Senate was equally -divided politically.
Fifteen members of that body met with the Republican.
House and claimed toelect Messrs. Powers and Sanders, and
fifteen other' members of the Senate met with the Demo-
cratic House and claimed to elect Messrs. Clark and Megin-







"21
niss. Neither side, with the hope of seating respective cl
ants, could afford to take the position that a majority of
Senate was necessary to elect. The question as to which
the two houses claiming to be the House of Representati
hada quorum and was, therefore, the legally organized Ho
depended upon the elections of the five members f
Silver Bow county. The five Democrats who claimed to,
elected acted with the so-called Democratic House, and
five Republicans who claimed to be elected acted with
so-called Republican House.
The report of the majority of the Committee on Pri
leges and Elections, to whom this' case was referred by
Senate, states: "The whole case, therefore, turns upon t
"question which of these two sets of five persons was -
"titled to sit in the House of Representatives from
"county of Silver Bow, take part in the organization a
"other proceedings down to and including the time of
"election of Senators." The Republican majority of the c -
mittee reported that the Republicans from Silver Bow conn
were elected and that the Iron Hall House wasdlegal,
consequently, Messrs. Powers and Sanders were entitled'
their seats. The Democratic minority of the committee
ported that the Silver Bow Democrats were duly elect
that the Court-house House of Representatives was
legal House, and Messrs. Clark and Meginniss were enti
to their seats. The question was decided by the Senate,
a strict party vote, and Messrs. Powers and Sanders
seated.
I have thus given the Senate cases which, so far as I
aware, bear upon the question of this investigation. It
true that in certain of them claimants were seated whe
quorum of the Senate did not participate in the elect
It is equally true that in nearly all of such cases partyli
were strictly drawn, and, it cannot be doubted, largely i
fluenced the result.
Notwithstanding the results which have been reached








22

certain cases and the dictum of Senate committees, so far
as my investigation extends, there is a noticeable absence of
argument to sustain the position that a Senator may be
elected in conformity with the requirements of the Consti-
tution without the participation of a quorum of each house
of the Legislature. And I cannot doubt that when the
Senate shall investigate and consider the question as con-
stitutional lawyers, free from party bias, the precedent in
the Harlan case will be accepted as the true exposition of
the law.
After a careful investigation and consideration of the
question, no doubt remains in my mind that the Constitu-
tion of the United States requires that the election of a
Senator must be by the State Legislature, a quorum of
each house participating. Inasmuch as a quorum of the
Senate of the State of Florida did not participate with the
House in the joint assembly on the 26th of May last, it is
my opinion that Wilkinson Call was not elected United
States Senator. I cannot, therefore, in the discharge of
duty, certify that he was elected.

FRANCIS P. FLEMING.




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