[First session-Fifty-second Congress.1

WILKINSON CALL,

Of Florida.

December 7, 1891, R. H. M. Davidson presented the credentials from the governor of Florida described in the following case, at the same time a transcript of the proceedings of the two houses of the legis lature of Florida in a joint convention, composed of a majority of the members of the two houses, but not of a majority of the members of each, recording what purported to be the election of Wilkinson Call. Mr. Call presented himself on the same day, claiming the right to take the oath by virtue of the proceedings of that joint convention. The facts set forth in the transcript were undisputed. The matter went over under objection to the next day, when Mr. Call was admitted to take the oath, on motion by Mr. Hoar, and the credentials were referred to the Committee on Privileges and Elections. The history of the case here given consists of a transcript of the Journal of the Senate in relation

to it.

MONDAY, December 7, 1891.

The Vice-President laid before the Senate the credentials of Wilkinson Call, being a transcript of the proceedings of the legislature of the State of Florida, in joint assembly, certifying to the election of Mr. Call as Senator from that State for the term of six years commencing March 4, 1891; which were read. Ordered, That they lie on the table.

Mr. Harris presented the credentials of Robert H. M. Davidson, appointed a Senator by the governor of the State of Florida to fill a vacancy alleged to exist in the term commencing March 4, 1891; which were read.

Ordered, That they lie on the table.

*

On motion by Mr. Hoar, that the oath prescribed by law be administered to Mr. Wilkinson Call as Senator from the State of Florida,

Ordered, That the consideration of the motion be postponed to to-morrow.

On motion by Mr. Hoar,

TUESDAY, December 8, 1891.

The Senate proceeded to consider the motion yesterday submitted by him, that the oath of office be administered to Wilkinson Čall as a Senator from the State of Florida; and

The motion was agreed to.

Whereupon

Mr. Call appeared, and the oath prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate.

On motion by Mr. Hoar,

Ordered, That the credentials of Wilkinson Call and also the credentials of R. H. M. Davidson, claiming a seat in the Senate by appointment of the governor of Florida, be referred to the Committee on Privileges and Elections.

The transcript of the proceedings of the legislature of Florida in joint assembly, resulting in the election of Mr. Call, is printed in the Record, 1st sess. 52d Cong., p. 2. The credentials of Mr. Davidson may be found in the same place.

79908°-S. Doc. 1036, 62-3- -53

[First session-Fifty-second Congress.]

R. H. M. DAVIDSON v. WILKINSON CALL,

Of Florida.

In April, 1891, the legislature of the State of Florida met and was duly organized at the time and place appointed by law. On the second Tuesday after such organization, being the 21st day of April, 1891, the two chambers of which it was composed held a session and voted, each separately, for the election of a United States Senator. No one was chosen at this election, and it was so declared and entered upon the journals of the respective houses. On the following day, being Wednesday, the 224 of April aforesaid, the legislature met at noon in joint assembly, and one vote was taken for Senator, which resulted in no election. And on every succeeding day, except Sundays, until the 26th day of May, 1891, they met and took one vote in the same manner, with the same result. On the 26th day of May, 1891, the joint assembly met as before, and upon a vote being taken for United States Senator it was found that Wilkinson Call had received a majority of the votes of those present and voting, the same being also a majority of all the members elected to both houses of the legislature. Thereupon Mr. Call was declared duly elected.

The validity of this election was questioned upon the ground that there was not a quorum of the State senate present and voting at the time it occurred. This objection was based upon the proposi tion that the joint convention or assembly in such cases is composed of the two houses as such, and that therefore a quorum of each must attend to properly form such convention.

The governor being of the opinion that this position was sound appointed Robert H. M. Davidson to be Senator from the State of Florida until the next meeting of the legislature, and issued credentials in the usual form under date of September 22, 1891, to which the secretary of State affixed the great seal of the State in obedience to a peremptory writ of mandamus issued by the supreme court of Florida, November 17, 1891. The credentials of both claimants were presented to the Senate December 7, 1891. On the following day Mr. Call was sworn and his credentials, as well as those of Mr. Davidson, were referred to the Committee on Privileges and Elections. The committee reported, February 1, 1892, finding the facts set forth in the preceding paragraph, and holding that "This act [of July 25, 1866] provides that the members of the two houses shall convene in joint assembly,' etc. The joint assembly is thus composed not of the two houses, but of the members thereof. The joint assembly is not a junction or union of the two houses as such; it is not a merger of the two houses into one of either, but it is a body distinct and separate from either as such, and has by the words of the enactment a quorum of its own prescribed and defined, to wit, a majority of all the members elected to both houses,' without any reference to a quorum either of the senate or the house.

The term legislature in this clause is not to be construed technically with reference to the separate chambers which may exist within it, but as designating the collective number of all the persons composing it," and that therefore Mr. Call was duly elected.

February 4, 1892, the Senate considered the report of the committee and declared Mr. Call “lawfully entitled to a seat in the Senate."

The history of the case here given consists of a transcript of the Journal of the Senate relating to it with the report of the committee, No. 106, Parts 1 and 2, 1st sess., 52d Cong.

The decision of the supreme court of Florida was rendered in the case of The State of Florida ez rel. Francis P. Fleming, governor, v. John L. Crawford, secretary of State, 28 Fla. 441. [For the first proceedings in this case see the case of Wilkinson Call, supra, p. 805.]

MONDAY, January 25, 1892,

Mr. Turpie, from the Committee on Privileges and Elections, to whom were referred the papers, evidence, and certificates in the case of Wilkinson Call, and of the contestant R. H. M. Davidson, respecting the question of the title to a seat in the Senate, submitted a report (No. 106) with the following resolution:

Resolved, That the Hon. Wilkinson Call, of Florida, was duly elected by the legislature of the said State on the 26th day of May, 1891, a Senator of the United States from the said State for the term of six years commencing on the 4th day of March, 1891, and that he is lawfully entitled to a seat in the Senate.

[The resolution may also be found in the Record, 1st sess. 52d Cong., p. 512. There was no discussion at this time.]

REPORT OF THE COMMITTEE.

[The committee consisted of Messrs. Teller (chairman), Hoar, Mitchell, Chandler, Higgins, Vance, Pugh, Gray, Turpie.]

IN THE SENATE OF THE UNITED STATES.

FEBRUARY 1, 1892.-Ordered to be printed.

Mr. Turpie, from the Committee on Privileges and Elections, submitted the following report:

The Committee on Privileges and Elections, to whom were referred the papers in the case of R. H. M. Davidson, contestor, against Wilkinson Call, contestee, concern.

ing the right to a seat in this body for the State of Florida, have had the same under consideration, and have instructed me to make the following report:

In April, 1891, the legislature of the State of Florida met and was duly organized at the time and place appointed by law. On the second Tuesday after such organization, being the 21st day of April, 1891, the two chambers of which it was composed held a session and voted, each separately, for the election of a United States Senator. No one was chosen at this election, and it was so declared and entered upon the journals of the respective houses. On the following day, being Wednesday, the 22d of April aforesaid, the legislature met at noon in joint assembly, and one vote was taken for Senator, which resulted in no election. And on every succeeding day, except Sundays, until the 26th day of May, 1891, they met and took one vote in the same manner, with the same result. On the 26th day of May, 1891, the joint assembly met as before, and upon a vote being taken for United States Senator it was found that Wilkinson Calf had received a majority of the votes of those present and voting, the same being also a majority of all the members elected to both houses of the legislature. Thereupon Mr. Call was declared duly elected.

The validity of this election is questioned upon the ground that there was not a quorum of the State senate present and voting at the time it occurred. This objection is based upon the position that the joint convention or assembly in such cases is composed of the two houses as such, and that therefore a quorum of each must attend to properly form such convention. The law of the case is found in the act of Congress of July 25, 1866, being chapter 1, title 2, of the Revised Statutes, concerning the election of United States Senators, an act adopted by the constitution of the State of Florida in respect to such elections, and so in a double sense to be regarded as the law of this case. But if the constitution of Florida had provided in express terms that a quorum of both houses was necessary to constitute a joint assembly this would not be the law unless the same is required by said act of 1866. The Federal law is paramount.

This act provides that "the members of the two houses shall convene in joint assembly," etc. The joint assembly is thus composed not of the two houses, but of the members thereof. The joint assembly is not a junction or union of the two houses as such; it is not a merger of the two houses into one of either; but it is a body distinct and separate from either as such, and has by the words of the enactment a quorum of its own prescribed and defined, to wit, "a majority of all the members elected to both houses," without any reference to a quorum either of the senate or the house. The joint assembly is authorized and created by the act of Congress, and when the circumstances have transpired which make it necessary to convene the same, all the members of both houses, without any reference to the further action of either house as such, are entitled to seats in it, and may join together and coöperate as members in the choice of a Senator until one is elected. It has always been conceded that the object of the statute of 1866 was to prevent the inaction or neglect of either house-that is, of a majority or quorum of either house-from delaying or defeating the will and voice of the majority of the whole legislative body.

The two houses, as such, are given their day in court-are given, under a previous provision of the act, an opportunity to make the choice of Senator. After they have failed to make a choice, to hold that a quorum of each is necessary to make a joint assembly is to give them a chance to repeat this failure-it is to vitiate the very purpose of the enactment and to reinstate the evil which it was designed to remedy. It was not the intention of the makers of the law of 1886 to place or leave it in the power of any minority of the whole number, or of a quorum in either house, as such, to prevent or postpone the representation of the State in this body. For this reason the law operates, so far as it relates to the joint meeting, upon members as individuals, not as component parts of the respective bodies to which they may belong; and for this reason also a majority of the whole number of members is constituted the quorum of the joint assembly; that is, the number requisite to transact its business in the senatorial election. If the minority of the members, absent at the time of Mr. Call's election, had all been present and voted, this would not have changed the result. It seems unreasonable, under the provisions of this statute or any other, to give a greater effect to the absence and nonaction of this minority than to their presence

and action.

It seems yet more unreasonable to hold that a quorum of the senate, in Florida 17 members, should defeat the action of thrice their number under a statute designed expressly to provide for the permanent and, as far as practical, the continuous representation of the States in the Senate of the United States.

It is implied in the argument made against the right of the contestee that this construction of the act is in conflict with the section of the Constitution which provides that Senators shall be chosen by the legislature that this is composed of two houses-and that a quorum of each is practically and legally the house; that without a quorm there is no house. We grant that the quorum is in legal effect the house. But the term legislature in this clause is not to be construed technically with reference to the separate chambers which may exist within it, but as designating the col

lective number of all the persons composing it. This is clear from the fact that one of the States at least, Pennsylvania, had at the time of the adoption of the Constitution only one legislative chamber. Besides this the word legislature is commonly used in this way-as the word magistracy is used and indeed is defined to mean "the body of magistrates" in a State or country. Legislature in this section means the body of legislators of the State, without reference to the different chambers, as such, in which they may serve. The joint assembly created by the act of 1866 is thus in the fullest sense of the term the legislature of the State, its whole number being equal to that of all the persons elected to either branch of the legislature and its quorum being a majority of that number.

In these views the recent decisions of the Senate agree.

The legislature of Florida is composed of a house of 68 and a senate of 32 members, in all 100. Fifty-two members attended the joint assembly of the 26th of May aforesaid; were present and voted. Mr. Call received of this number the votes of 51. So that the joint assembly contained and the person chosen received the votes of a majority of all the members elected to both houses.

We are therefore of the opinion that Mr. Call was duly elected.

The appointment by the governor thereafter of Mr. Davidson, under the erroneous supposition that a vacancy existed in the office of United States Senator, was an act of mere irrelevancy which it is not necessary further to notice.

On motion by Mr. Turpie,

'THURSDAY, February 4, 1892.

The Senate proceeded to consider the report of the Committee on Privileges and Elections on the question of the title to a seat in the Senate from the State of Florida; and,

After debate,

The resolution reported by the committee was agreed to, as follows:

Resolved, That the Hon. Wilkinson Call, of Florida, was duly elected by the legis lature of said State on the 26th day of May, 1891, a Senator of the United States from said State for the term of six years, commencing on the 4th day of March, 1891, and that he is lawfully entitled to a seat in the Senate.

[The debate may be found, Cong. Record, 1st sess. 52d Cong., pp. 833-846.]

EXPENSES OF CONTESTANTS.

WEDNESDAY, February 10, 1892.

Mr. Vance submitted the following resolution; which was referred to the Committee on Privileges and Elections:

Resolved, That there be paid out of the contingent fund of the Senate the sum of $1,258 to the Hon. R. H. M. Davidson for expenses in prosecuting his claim to a seat in the Senate under the appointment of the governor of Florida.

THURSDAY, March 31, 1892.

Mr. Chandler, from the Committee on Privileges and Elections, to whom was referred the resolution submitted by Mr. Vance February 10, 1892, to pay R. H. M. Davidson for expenses in prosecuting his claim to a seat in the Senate under the appointment of the governor of Florida, reported the following amendment, intended to be proposed in the general deficiency bill; which was referred to the Committee on Appropriations:

To enable the Secretary of the Senate to pay R. H. M. Davidson the expenses incurred by him in prosecuting his claim to a seat in the Senate under the appointment of the governor of Florida, $1,250.

[See Cong. Record, 1st sess. 52d Cong., p. 2754.]

[Special session of the Senate, March 4, 1893.]

WILLIAM N. ROACH, Senator from North Dakota.

On the 28th day of March, 1893, Mr. Hoar submitted a resolution providing for an investigation of certain allegations charging William N. Roach, a Senator from the State of North Dakota, with the offense of criminal embezzlement. On the 10th day of April, 1893, a substitute for this resolution was introduced by Mr. Hoar, and on the 14th day of April, 1893, a substitute for the resolutions then pending in said matter was introduced by Mr. Gorman. The resolution and the substitutes were the subject of debate in the Senate, but no action was had or taken thereon.

It appears from the debates that the case presented the question as to the right of the Senate to take cognizance of an accusation against a Senator of an offense committed before his election to the Senate.

The history of the case here given consists of a statement of the proceedings in the Senate in relation thereto, as published in the Congressional Record, with a reference to the debate as contained in the Congressional Record, and extracts from remarks by Mr. Chandler in such debate, with the statement made by Mr. Roach in the Senate in reference to the matters referred to in such resolution and substitutes.

PROCEEDINGS IN THE SENATE.

TUESDAY, March 28, 1893.

Mr. Hoar submitted the following resolution, which was read:

"Resolved, That the Committee on Privileges and Elections be directed to investigate the allegations recently extensively made in the public press, charging William N. Roach, a Senator from the State of North Dakota, with the offense of criminal embezzlement, to report the facts of the transactions referred to, and further to report what is the duty of the Senate in regard thereto. For that purpose the committee shall have authority to send for persons and papers, to administer oaths, to employ a stenographer, and to act through a subcommittee.

The resolution was ordered to lie over and be printed. (Cong. Rec., vol. 25, p. 37.)

MONDAY, April 10, 1893.

Mr. Hoar submitted the following resolution, which was read: "Resolved, That the Committee on Privileges and Elections be directed to examine the allegations recently made in the public press, charging William N. Roach, a Senator from the State of North Dakota, with certain criminal offenses committed while cashier or officer of a bank in the city of Washington, and to ascertain the facts and circumstances so far as to enable the committee to determine and report what are the duty and power of the Senate in regard thereto; and for that purpose the committee shall have authority to send for persons and papers, to employ a stenographer, to sit during the recess of the Senate, and to act through a subcommittee; and its expenses shall be paid from the contingent fund of the Senate."

Mr. HOAR. This resolution is proposed as a substitute for one introduced by me the other day, and has been agreed upon after a conference between several Senators on both sides of the Chamber as the proper form. I will let it lie over, however, one day in order that it may be seen by Senators.

The resolution was ordered to lie over and be printed. (Cong. Rec., vol. 25, pp. 111, 112.)

FRIDAY, April 14, 1893.

Mr. ROACH. Mr. President, I rise to a question of personal privilege. My colleague, the senior Senator from North Dakota [Mr. Hansbrough], is reported to have said, referring to the charges alleged in the resolution of the Senator from Massachusetts, that I told him I desired to offer a resolution for investigation, or that I thought it was the best thing to do. I rise now to confirm that statement, and to say further that as far as that investigation is concerned I desire it and am perfectly willing that it shall be proceeded with.