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"Mr. SPOONER. The State constitution; and the court held that the act was constitutional. Years after, a new court considering the question as a new question, and arguing it with very great ability, came to the conclusion, and so announced, that the original interpretation of the constitution was without good warrant of law; but when it was brought to the attention of the court that the former decision had become a rule of property in the State, and that to overturn it would overturn thousands of titles which had grown up, based upon it, and disturb all the tax proceedings in the intervening years, the court declared that, in view of the harmful result to follow, they felt obliged within the doctrine of stare decisis to allow the decision to stand, although were it nova res they would hold differently.

"The author, referring in the same connection to a case from Texas, says: "But the Texas court, speaking of the same subject of taxation, in reference to the constitutional provision lays down some limitations, which, doubtless, may be properly admitted, to the effect that where the decisions relate not to matters of title, or contract, but abstractly to the structure of the Government, the limits of executive and legislative power, etc., the doctrine of stare decisis does not apply. I give, however, the views of the court verbatim on this important topic.'

"The supreme court of Texas has well earned in later years-I do not know so much of it before-by learning, by strong reasoning, and the utmost judicial assiduity, the favor of the profession and of the courts with which their decisions are now received.

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"The proper determination of each of these cases depends upon the validity or invalidity of the 'Act to organize and maintain a system of public schools,' approved April 24, 1872, and the authority conferred thereby to collect the taxes brought in question in them. The constitutionality of this law, and the liability of the taxpayer for these taxes, has been sustained by this court. It may be, therefore, thought that the question should not be regarded by us as now open for discussion'. "That is the doctrine of the Senator from Alabama"that whatever might be our views in respect to it, upon the principle of stare decisis we should hold it as definitely settled and concluded."

"We can not, however, regard the rule of stare decisis as having any just application to questions of the character involved in these cases. This doctrine grows out of the necessity for a uniform and settled rule of property and a definite basis for contracts and business transactions. If a decision is wrong, it is only when it has been so long the rule of action as that time and its continued application as the rule of right between parties demand the sanction of its error; because when a decision has been recognized as the law of property, and conflicting demands have been adjusted, and contracts have been made with reference to and on faith of it, greater injustice would be done to individuals and more injury result to society by a reversal of that decision, though erroneous, than to follow and observe it. But when a decision is not of this character, upon no sound principle do we feel at liberty to perpetuate an error into which either our predecessors or ourselves may have unadvisedly fallen merely upon the ground of such erroneous decision having been previously rendered. "The questions to be considered in these cases’

"As the question to be considered and determined in this matter, even if this were

a court

"have no application whatever to the title or transfer of property, or to matters of contract. They involve the construction and interpretation of the organic law, and present for consideration the structure of the Government, the limitations upon legislative and executive power as safeguards against tyranny and oppression. Certainly it can not be seriously insisted that questions of this character can be disposed of by the doctrine of stare decisis.'

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"Therefore, a question like that now before the Senate, even if it were pending before a court, would not be so far regarded as settled by a prior adjudication as to properly preclude a court from reviewing its decision and settling it in harmony with its judgment as to constitutional construction.

"But, Mr. President, this doctrine of stare decisis, as I said before, applies to courts. Nobody ever heard before, so far as I am aware, of an attempt to apply it strictly and firmly and broadly, as the Senator from Alabama attempts to do, to the decisions of the Senate, of the House of Representatives, and of the different branches of the legislatures in dealing with contested election cases."

[Extracts from remarks of Mr. Foraker in opposition to the resolution that Hon. Henry W. Corbett is not entitled to take his seat in the Senate as a Senator from the State of Oregon. Found in the proceedings of February 26, 1898, in volume 31 of the Congressional Record, pages 2225, 2226, 2227, 2228.]

"Mr. President, the debate with respect to the seating of Mr. Corbett is already long protracted. It is not too much to say, perhaps, that every legitimate argument

that can be presented on both sides has been presented to the Senate. Surely I am justified in saying, after the speech of the Senator from Wisconsin [Mr. Spooner], that I might well be content to discharge my duty with the simple casting of my vote in favor of the seating of Mr. Corbett, as I shall cast it, for that speech was elaborate, masterly, and to my mind conclusive.

"Yet, Mr. President, I feel with respect to this matter as though I want to do something more than cast my vote. I want to at least briefly give the reasons why I do not intend to follow, as Senators have been insisting we should follow, the decision in the Mantle case. I do not intend to follow it, because in my judgment it was an erroneous decision. I think it was so regarded by the legal profession generally throughout the country at the time when that decision was made, for whether the Senators who were then here and made that decision recognized the fact or not, it was, I think, generally thought throughout the country that the silver question had more to do with the making of that decision than legal principles.

"I think the fact that that decision was erroneous is recognized by the Senators who are speaking in opposition here now in this debate to the seating of Mr. Corbett when they make to us the elaborate arguments that they have been making about the doctrine of stare decisis.

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"But now to recur to what I was about to say. Our action in determining whether or not a Senator who comes here with credentials shall be seated is not judicial action. I need not stop to read, for all Senators are familiar with the fact that the Constitution of the United States, in the third article, provides that the judicial power of this Government shall be conferred upon certain courts which are named in the Constitution, or which according to that provision are authorized to be created by statute. There is no conferring of judicial power upon any body but the courts. The legislative branch has no judicial power.

"I have not been able to find any decision of the Supreme Court directly in point upon that question in the limited time I have had to make an examination, but being familiar with a decision of the supreme court of Ohio that is directly applicable, I want to call attention to it. The constitution of the State of Ohio provides, just as the Constitution of the United States does, that the judicial power shall be conferred upon the courts enumerated in the constitution and authorized by statute. The constitution further provides that in all contested cases of election the trial shall be had before such tribunal as the legislature may appoint.

"The legislature of Ohio provided by statute that in every case of contested election of a judge the trial should be before the State senate. We had a judicial contest. It was brought before the State senate, and the State senate found against the contestee. I believe that is the way the case arose. At any rate the decision of the State senate came before our supreme court, and one of the questions involved was whether it was competent under our constitution to confer upon the State senate the power to hear and determine a case of contest. It was claimed that senators could not sit as judges in that contested-election case without exercising judicial power; but our supreme court said, in answering that proposition, that the judicial power was conferred upon the courts, and that while this involved a necessity to sit and hear testimony and pass judgment, yet it was not in an appropriate sense an exercise of judicial power, although approaching the exercise of judicial power in its nature, remarking in that connection that there were many powers which would be held to be legislative or judicial accordingly as the exercise of those powers might be conferred upon a court or upon a legislative body.

"I will not stop to read the case, but it is the case of The Stater. Harmon (31 Ohio State Reports, p. 250). The case there is precisely what the case is here. The senate of Ohio was empowered to hear and determine. They had to hear and weigh testimony; they had to examine witnesses; they had to pass judgment; they had to determine rights. That is all we have to do in this case. We hear the testimony, we hear what the facts are, and we then apply the law to the case.

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"Therefore it is that I do not believe we ought now to follow the decision in the Mantle case, because in my opinion that decision was erroneous, and because, Mr. President, this country has never accepted it and followed it in such a way as to make it appropriate to apply here, if otherwise it might be appropriately applied, the doctrine of stare decisis. No rights have been vested on account of it; no rule of property has been created on account of it; no rule of public policy will be violated that has been adopted on account of the Mantle case if we now depart from it. Therefore, if the Mantle decision was erroneous, as invoking the doctrine of stare decisis implies that it was and concedes that it was, we are under no obligation whatever to follow it and now make a second erroneous decision.

"In the next place I object to following it, Mr. President, because, not being a judicial decision, if it were otherwise on all fours with this case, the disposition of the Mantle case would not bind us now upon the doctrine of stare decisis or res adjudicata, because that doctrine can be applied only to a judicial decision, and that decision was not judicial. Judicial power in this country is conferred upon the courts. It is only when courts pass judgment upon those things with respect to which they have been given jurisdiction that judicial power is exercised and the predicate is laid for invoking the doctrine of stare decisis, other things being appropriate for its application.

“But, Mr. President, there is a stronger reason to my mind-if it be possible to have any stronger-than the one I have suggested why the decision in the Mantle case should not bind anybody in this case; why we should feel ourselves at liberty to take up this case and consider it res nova. It has been said here, and repeated over and over again, that this case is identical with the Mantle case upon the facts. I do not so understand it. Not only do I not understand the facts to be the same, but I can not comprehend how any Senator can make that statement about the facts, admitted and conceded to be what all agree that they are-but when I speak of facts I contradistinguish simple facts from the mixed case of law and fact.

"There is not any question but that in the Mantle case the legislature had met, had organized, and as an organized body was in session, with full power and opportunity to elect a Senator if it had seen fit to do so, and failed. In this case it is an admitted fact that while the members-elect to that general assembly had a meeting, they never did have an organization as a legislature under and in accordance with the provisions of the constitution of the State of Oregon.

"I listened to the Senator from Tennessee [Mr. Turley] yesterday as he stated the undisputed facts. If I do not state them exactly as they are, I trust that he will correct me. The senate met-the members-elect. They had a temporary organization. They met subsequently and had a permanent organization, and there is not any question but that the senate of Oregon was duly constituted, duly met, duly organized, and duly in session, with power to do its part in the election of a Senator. "As to the house the case was different. They met; they had a temporary organization; appointed a committee on credentials, and adjourned without anybody taking the oath of office. They never met again, except only a portion of them. The constitution of Oregon provides that two-thirds of the whole number of members elected, or 40-having reference to the figures that will represent the number of members of that house-shall constitute a quorum. There were never but 31 assembled after the first meeting; never but 31 members met who had taken the oath of office; there was not, therefore, ever a quorum of the house of Oregon in meeting or in session of any kind whatsoever, and yet it is said they were in session and full opportunity to elect a Senator.

"How is that said? It is said they were in session, because the constitution of Oregon provides that less than a quorum may adjourn from day to day, and shall have power to send for and compel the attendance of absent members; and because, while they were so sitting and adjourning from day to day and undertaking to compel the attendance of absent members, they were not subject to arrest; they were in the enjoyment of all the privileges conferred upon those who were in attendance upon the general assembly in the performance of their duties, and because, further, it is provided by the statute of Congress that on the second day of the Senatorial election, when the two houses of the legislature meet in joint session, they shall proceed with the election, provided there be a majority of both houses present. "Well, now, Mr. President, let us examine that just for a moment. It does not seem to me that upon these facts there was a house of representatives in session when less than a quorum had taken the oath of office and were meeting from day to day and adjourning from day to day, with power to compel the attendance of absent members, and when it is admitted that they never did compel such attendance.

"Certainly it can not be contended that there was ever an organization of that house which met the requirements of the constitution of Oregon, and surely, for the purposes of organization, that constitution would be the organic and supreme law to govern the house of representatives. It does not cut any figure, Mr. President, that there was a majority present, or more than a majority, who had taken the oath of office, so long as the majority failed to be a quorum. If there had been only 10 members of the general assembly present who had taken the oath of office, who were meeting from day to day and adjourning from day to day, with power to send for the other members and compel their attendance, those 10 would have been just as much a legally organized and acting house of representatives of the State of Oregon as the 31 members were or ever could be. It does not make any difference, when you come to consider the question of organization, whether they had 31 members, or 21 members, or 10 members, or 5 members. So long as less than 40 members

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assembled and took the oath of office and undertook to act together, there was less than a quorum and never any organization. Nothing, it seems to me, can be more definitely established than that.

"How did the Senator from Tennessee yesterday, in his very able argument, with which I was pleased, although he differed from me in the opinion he was trying to uphold, undertake to say that that legislature, which he was compelled to admit never had any valid organization under the constitution of Oregon, had an opportunity to elect a Senator? He got around that by pointing out to us the language of the statute of the United States governing in such case and commenting upon that feature of it to which I have already adverted, that on the second day, if there be a majority of each house present, they may proceed to the election of a Senator. Ah, but, Mr. President, the Senator from Tennessee skipped over lightly the preceding section of the statute. This statute can have no application or operation except only the condition precedent, for the second day's session, the joint session, shall have been complied with. What is the language of the statute? I will read section 14, title 2, chapter 1:

"SEC. 14. The legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to represent such State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress.'

"When came the time-will some Senator please answer-when it was competent under this statute for the legislature of Oregon to proceed with the election of a United States Senator? This statute can have no application, can confer no power or authority, until after the legislature shall have met and shall have organized. When did it organize? The senate organized, we all agree; but the organization of the senate is not an organization of the legislature. When did the house organize? Never. That, Mr. President, is the crucial point in the whole case. There never was any organized legislature in the State of Oregon."

MONDAY, February 28, 1898.

Mr. Hoar moved to amend the resolution reported from the Committee on Privileges and Elections by striking out the word "not," so as to make the resolution read: Resolved, That the Hon. Henry W. Corbett is entitled to take his seat in this body as a Senator from the State of Oregon.'

A vote being taken thereon, the amendment was rejected by the following vote: Ayes-Messrs. Aldrich, Allison, Baker, Fairbanks, Foraker, Frye, Hanna, Hansbrough, Hawley, Hoar, Lodge, Mantle, Mason, Morrill, Perkins, Sewell, Turner, Wetmore, and Wilson-19.

Nays-Messrs. Allen, Bacon, Bate, Berry, Burrows, Butler, Caffery, Carter, Chilton, Clark, Clay, Cockrell, Cullom, Davis, Deboe, Faulkner, Gallinger, Gorman, Gray, Hale, Heitfeld, Jones (Ark.), Jones (Nev.), Kenney, Lindsay, McBride, McMillan, Mallory, Martin, Mills, Mitchell, Money, Nelson, Pasco, Penrose, Pettigrew, Pettus, Platt (Conn.), Rawlins, Roach, Shoup, Stewart, Teller, Thurston, Tillman, Turley, Turpie, Vest, Warren, and Wellington-50.

Thereupon a vote was taken on agreeing to the resolution as reported from the Committee on Privileges and Elections and the same was agreed to by the following

vote:

Ayes-Messrs. Allen, Bacon, Bate, Berry, Burrows, Butler, Caffery, Carter, Chilton, Clark, Clay, Cockrell, Cullom, Davis, Deboe, Faulkner, Gallinger, Gorman, Gray, Hale, Heitfeld, Jones (Ark.), Jones (Nev.), Kenney, Lindsay, McBride, McMillan, Mallory, Martin, Mills, Mitchell, Money, Nelson, Pasco, Penrose, Pettigrew, Pettus, Platt (Conn.), Rawlins, Roach, Shoup, Stewart, Teller, Thurston, Tillman, Turley, Turpie, Vest, Warren, and Wellington-50.

Nays-Messrs. Aldrich, Allison, Baker, Fairbanks, Foraker, Frye, Hanna, Hansbrough, Hawley, Hoar, Lodge, Mantle, Mason, Morrill, Perkins, Sewell, Turner, Wetmore, and Wilson-19.

(Cong. Rec., vol. 31, p. 2275.)

At the first session of the Fifty-sixth Congress, and during the debate in the case of Matthew S. Quay, the case of Henry W. Corbett was discussed by Mr. Carter and Mr. Simon and certain papers relating to the case were inserted in the Record and are referred to here.

(Cong. Rec., vol. 33, pp. 2573-2579.)

[Fifty-fifth Congress-Special session of the Senate.]

ANDREW T. WOOD, of Kentucky.

The term of Joseph C. S. Blackburn, a Senator from the State of Kentucky, expired March 3, 1897. The legislature of said State not being then in session, the governor of said State, on the 5th day of March, 1897, appointed Andrew T. Wood to fill the vacancy in the Senate caused by the expiration of the term of Mr. Blackburn. The credentials of Mr. Wood were presented in the Senate March 10, 17, and were referred to the Committee on Privileges and Elections. No report was submitted by the committee concerning the claim of Mr. Wood to a seat in the Senate. Afterwards William J. Deboe was duly elected by the legislature of the State of Kentucky to succeed Joseph C. S. Blackburn sa Senator from said State. Mr. Deboe appeared and took his seat in the Senate during the first session of the Fifty-fifth Congress, and no further action was taken in respect to the claim of Mr. Wood. The history of the case here given consists of a statement of the proceedings in the Senate in reference to the claim of Mr. Wood, as published in the Congressional Record.

PROCEEDINGS IN THE SENATE.

WEDNESDAY, March 10, 1897.

The Vice-President presented a communication from the governor of Kentucky, which was read, as follows:

"COMMONWEALTH OF KENTUCKY, Executive Office,
"Frankfort, Ky., March 5, 1897.

"SIR: I have the honor to notify you that I have this day appointed Andrew T. Wood, of Montgomery County, this State, Senator from Kentucky in the United States Senate (to supply the vacancy occasioned by the expiration of the term of J. C. S. Blackburn as such Senator, which happened during the recess of the legislature of Kentucky, said body not being now in session) temporarily until the next meeting of said legislature and election thereby of his successor.

"In testimony of which, as governor of said Commonwealth, my name, with seal of State, is hereto attached, day and date above written, and in the one hundred and fifth year of the Commonwealth.

"Attest:

"CHARLES FINLAY, Secretary of State.

"By E. D. GUFFEY, Assistant Secretary of State.

"Hon. GARRET A. HOBART,

"WILLIAM O. BRADLEY.

"Vice-President of the United States and President of the Senate."

Mr. Hoar moved that the Senator appointed from the State of Kentucky be admitted to take the oatn.

On motion of Mr. Gorman the credentials presented, with the motion of the Senator from Massachusetts, were referred to the Committee on Privileges and Elections. Cong. Rec., vol. 30, p. 7.)

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