happens during the recess of the legislature of any State shall be filled by the legisiature at its next meeting. The statute of the United States merely prescribes the time and manner in which, at such meeting, the constitutional mandate shall be obeyed. The only question, therefore, which can possibly arise, is whether the body which sat in pursuance of the call of the governor was a legislature in the constitutional sense.

It is claimed by Mr. Lueas, that, as this body was not permitted to enter upon any legislative business, except such as related to the eight matters set forth in the call, it was not a legislature, but was a body deriving its power from the will of the execu tive, and so was exerting a certain executive or quasi executive function, something like that which is exercised by the Senate in giving its assent to the nominations of public officers.

But it seems to us that this view can not be supported. In the first place, the body is expressly declared by the constitution of West Virginia itself to be a legislature. In the next place, the function which it exercised in making enactments upon the eight great subjects mentioned in the call of the governor is clearly a legislative function. Among them, under Articles I and II, is the making appropriations of public money; under Article III, the regulating of procedure in criminal cases; under Articles V, VI, and VII would exist the power to declare certain high crimes and misdemeanors; and under Article VIII, to give the assent of the State to the establishment and confirmation of its boundary lines.

It is difficult to conceive of any definition of the word "legislature" which would not include a body capable of passing and actually passing such enactments as these. They can be binding on the people of the Commonwealth only as legislation. They would be subject to be construed and enforced by the courts of that State only in their character as laws.

But it seems to the committee that the construction of the State constitution of West Virginia, upon which the above argument is based, is one which will not bear examination. When that constitution provided that the legislature so convened in extraordinary occasions "should enter upon no business except that stated in the proclamation by which it was called together," the people must be presumed to have had in mind business to be transacted under authority of the State constitution, and not to have intended to prohibit the performance of duties imposed upon it by the supreme authority of the Constitution of the United States.

If the argument be sound that a legislative body which is prohibited from entering upon certain classes of business, or which is confined to certain classes of business clearly legislative in their character, is no legislature in the constitutional sense, its logic would require us to declare that the legislature of every State whose bill of rights excludes it from large domains of legislation is no legislative body. If, under the same provision of the Constitution of the United States, the act of Congress had fixed a day for holding elections for Representatives to Congress, and the State constitution or laws should prohibit the assembling of the people for such elections on the day so fixed, it would, we suppose, be held clear that the act of the State would be void and the authority of the act of Congress would prevail. We can not see any difference between such prohibition of a State constitution applicable to the constitutional electors of Senators, who are members of the State legislature, and the constitutional electors of representatives, who are a body of electors authorized to vote for members of the most numerous branch of the State legislature. We are therefore clearly of opinion that the election of Mr. Faulkner at the special session of the legislature of West Virginia was valid.

It is insisted that Mr. Faulkner was ineligible to the office of Senator by reason of the provision of the constitution of West Virginia:

"No judge during his term of office shall practice the profession of law or hold any other office, appointment, or public trust, under this or any other government, and the acceptance thereof shall vacate his judicial office. Nor shall he, during his continuance therein, be eligible to any political office. (Article VIII, section 16.)"

But we are of opinion that no State can prescribe any qualification to the office of United States Senator in addition to those declared in the Constitution of the United States. (See the debates on the case of Mr. Trumbull, supra p. 148.)

This provision, according to the settled rule of construction, must be so construed as to attribute to it a meaning not inconsistent with the constitution of West Virginia. This can well and properly be done by holding it to mean eligible to office under the constitution of West Virginia."

66

We therefore find that Mr. Faulkner has been constitutionally elected to the seat in the Senate made vacant by the expiration of the term of Mr. Camden and that he is entitled to take the oath.

We report the following resolutions:

Resolved, That Daniei B. Lucas is not entitled to a seat in the Senate from the State of West Virginia.

79908°-S. Doc. 1036, 62-3- 48

Resolved, That Charles J. Faulkner has been duly elected Senator from the State of West Virginia for the term of six years, commencing on the 4th day of March, 1887, and that he is entitled to a seat in the Senate as such Senator.

EXPENSES OF MR. LUCAS.

TUESDAY, December 20, 1887.

Mr. Faulkner submitted the following resolution, which was referred to the Committee on Privileges and Elections: Resolved, That the sum of dollars be paid out of the contingent fund of the United States Senate to D. B. Lucas in full of all expenses, etc., incurred by him as a contestant for a seat in the Senate as a Senator from the State of West Virginia.

THURSDAY, January 12, 1888.

Mr. Hoar, from the Committee on Privileges and Elections, reported the following resolution, which was referred to the Committee to Audit and Control the Contingent Expenses of the Senate:

Resolved, That there be paid to Daniel B. Lucas, of West Virginia, out of the contingent fund of the Senate, as compensation for expenses incurred in contesting the seat of Hon. Charles J. Faulkner in the United States Senate, $1,000, the same to be in full for all claims for such expenses, and also for any claim for salary as Senator.

WEDNESDAY, January 25, 1888.

Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent Expenses of the Senate, to whom was referred the resolution submitted by Mr. Hoar on the 12th instant, to pay Daniel B. Lucas $1,000 for expenses incurred by him in contesting for a seat in the Senate, reported it without amendment.

The Senate proceeded, by unanimous consent, to consider the said resolution; and Resolved, That the Senate agree thereto.

[Fifty-first Congress-First session.]

CLARK AND MAGINNIS vs. SANDERS AND POWER,

of Montana.

January 16, 1890, papers purporting to be the credentials of Messrs. Sanders and Power as Senators from the State of Montana, were presented and referred to the Committee on Privileges and Elections. January 23, papers purporting to be the credentials of Merssrs. Clark and Maginnis were also presented, and were referred to the same committee. March 24 the committee reported and on the next day the views of the minority were submitteed. The reports agree in finding the facts to be as follows: Messrs. Sanders and Power were elected by a joint assembly composed of one-half of the senate of Montana and a body calling itself the house of representatives made up of twenty-five persons of whose right to sit and act in the house there was no question, and five persons claiming the right to sit and act as members from the county of Silver Bow. Messrs. Clark and Maginnis were elected by a joint assembly composed of one-half of the senate, and a body claiming to be the house of representatives and made up of twenty-four persons whose title to seats was undisputed, and five persons claiming to be members from Silver Bow County.

The question which of these two bodies was the lawful house depended upon the question which of the two delegations of five members from the county of Silver Bow was entitled to sit in the house of representatives until their title was adjudicated by the house. The decision as to which delegation was so entitled to sit depended upon the question who was lawfully entitled to give credentials to the representatives elect, and the decision of the body entitled to give the credentials depended upon the question whether the vote of precinct 34 of Silver Bow County should be admitted or rejected. The majority of the committee held that, under the law applicable to this election, it was the duty of the State canvassing board to receive the returns, declare the result, and give the credentials in accord. ance with such declaration, and that as that board had given the lawful certificates of election to the first-named five persons, they were lawfully entitled to take part in the organization of the house and to sit until the house adjudicated the title to their seats and to take part in its proceedings and in the joint convention for the election of Senators of the United States.

The minority of the committee contended that the county commissioners were the proper canvassing board, the clerk of the county the proper authority to issue certificates of election, and that, as the county commissioners had counted the vote of precinct 34, under mandamus from the district court of the Territory, and the clerk of the county had issued certificates accordingly to the second five persons above mentioned as claiming to represent Silver Bow, the body in which they sat, was the lawful joint assembly of the senate and house of representatives of Montana, and Messrs. Clark and Maginnis the lawfully elected Senators from that State. The minority further contended that in any event the powers of the State or county canvassing board were merely ministerial, and that, therefore, the vote of precinct 34 must be counted and the persons certified by county clerk accepted as members of the house until the house itself had passed on their title.

April 16 the case was decided in accordance with the majority report and Messrs. Sanders and Power were scated.

The history of the case here given consists of a transcript of the Journal of the Senate, 1st sess., 51st Cong., in relation to it and the reports of the committees from Sen. Rep. No. 538, 1st sess., 51st Cong.

The provisions of the constitution of Montana and of the acts of Congress and of the Territory upon which the decision depended appear in the report of the committee below.

THURSDAY, January 16, 1890.

Mr. Teller presented a paper purporting to be the credentials of Wilbur F. Sanders, chosen a Senator by the legislature of Montana, and also a paper purporting to be the credentials of Thomas C. Power, chosen a Senator by the legislature of the same State; which were read and referred to the Committee on Privileges and Elections.

THURSDAY, January 23, 1890.

Mr. Vest presented a paper purporting to be the credentials of William A. Clark, and also a paper purporting to be the credentials of Martin Maginnis, elected Senators by the legislature of the State of Montana; which were read and referred to the Committee on Privileges and Elections.

On motion by Mr. Vest, and by unanimous consent,

Ordered, That pending the settlement of the contested-election cases of Senators from the State of Montana, Messrs. Wilbur F. Sanders, Thomas E. Power, William A. Clark, and Martin Maginnis be admitted to the privileges of the floor of the Senate

[The motion was agreed to without objection and without discussion.]

MONDAY, March 24, 1890. Mr. Hoar, from the Committee on Privileges and Elections, to whom were referred the papers purporting to be credentials of Wilbur F. Sanders, Thomas C. Power, William A. Clark, and Martin Maginis, severally claiming seats in the Senate from

the State of Montana, submitted a report (No. 538) accompanied by the following resolutions:

Resolved, That William A. Clark is not entitled to be admitted to a seat in the Senate from the State of Montana.

Resolved, That Martin Maginnis is not entitled to be admitted to a seat in the Senate from the State of Montana.

Resolved, That Wilbur F. Sanders is entitled, upon the merits of the case, to be admitted to a seat in the Senate from the State of Montana.

Resolved, That Thomas C. Power is entitled, upon the merits of the case, to be admitted to a seat in the Senate from the State of Montana.

Mr. Gray asked and obtained leave to submit at some future day the views of a minority of the Committee on Privileges and Elections on the foregoing cases.

TUESDAY, March 25, 1890.

Mr. Gray, in pursuance of leave granted, submitted the views of the minority of the Committee on Privileges and Elections on the contested seats in the Senate from the State of Montana, accompanied by the following resolutions intended to be proposed as amendments to the resolutions reported by the committee; which were ordered to be printed, to accompany the report No. 538:

Resolved, That William A. Clark is entitled to be admitted to a seat in the Senate from the State of Montana.

Resolved, That Martin Maginnis is entitled to be admitted to a seat in the Senate from the State of Montana.

Resolved, That Wilbur F. Sanders is not entitled, upon the merits of the case, to be admitted to a seat in the Senate from the State of Montana.

Resolved, That Thomas C. Power is not entitled, upon the merits of the case, to be admitted to a seat in the Senate from the State of Montana.

On motion by Mr. Hoar,

FRIDAY, March 28, 1890.

Ordered, That 1,500 additional copies of the reports of the majority and minority of the Committee on Privileges and Elections in the Montana contested-election case be printed for the use of the Senate.

REPORT OF THE COMMITTEE.

[The committee consisted of Messrs. Hoar (chairman), Frye, Teller, Evarts, Spooner, Vance, Pugh, Gray, Turpie.]

IN THE SENATE OF THE UNITED STATES.

MARCH 24, 1890.-Ordered to be printed.

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

The Committee on Privileges and Elections, to whom were referred sundry documents purporting to be, respectively, the credentials of Messrs. Wilbur F. Sanders, Thomas C. Power, William A. Clark, and Martin Maginnis, each claiming to be entitled to a seat in the Senate from the State of Montana, have considered the same and respectfully report:

No distinction exists between the cases of Messrs. Sanders and Power, and no distinction exists between the cases of Messrs. Clark and Maginnis. The cases on each side have been presented and argued upon the merits of the title, and not merely upon the question presented by the certificate of the governor or of the secretary of the State. The committee, therefore, have considered and report upon the whole case upon its merits.

The claimants on both sides seem to be agreed that a lawful joint convention was held in Montana by the members of the two houses of the legislature, and elected Senators by due proceedings. The dispute is which of two bodies claiming to be the lawfully-organized house of representatives of Montana was entitled to that character.

There was no election of Senator by concurrent vote on the Tuesday appointed for that purpose by the statute of the United States (Rev. Stat., sections 14, 15). On the following day one-half the members of the senate met in joint assembly with a body which had assembled and organized in a room called the Iron Hall, which body was known as the Iron Hall or Republican house, whereupon, a ballot for Senator being had, Mr. Sanders had a majority of all the votes cast, and was declared duly elected. No other person having such majority, the convention was adjourned until the day following, when, a ballot for Senator being held, Mr. Power had a

majority of all the votes cast and was declared duly elected. If this body were the lawful house of representatives of Montana, these two gentlemen were duly chosen Senators.

On the same day the other half of the members of the senate met in joint assembly with a body which had assembled and organized in the court-house, which body was known as the court-house or Democratic house, voted for Senators by separate ballotings, adjourned from day to day, and continued balloting until Messrs. Clark and Maginnis had a majority of all the votes cast and were declared duly elected. If this body were the lawful house of representatives of Montana these two gentlemen were duly chosen Senators.

These two bodies were composed as follows: By the constitution of Montana the house of representatives consists of fifty-five members, of whom twenty-eight are a quorum. Twenty-five persons of whose title to sit in the house of representatives and take part in its proceedings no question is made, together with five persons claiming to be entitled to sit and take part as representatives from the county of Silver Bow, met, as above stated, at the Iron Hall, at the time fixed by the constitution for the meeting of the legislature, and organized there. The auditor, who is required by the constitution to preside at the organization of the house, called them to order and presided till a speaker was chosen. Twenty-four other persons of whose title to sit in the house of representatives and take part in its proceedings no question is made, together with five other persons claiming to be entitled so to sit and take part as representatives from the county of Silver Bow, met, as above stated, at the courthouse, at the time fixed by the constitution for the meeting of the legislature, and organized there.

The whole case, therefore turns upon the question which of these two sets of five persons was entitled to sit in the house of representatives from the county of Silver Bow, take part in the organization and other proceedings down to and including the time of the election of Senators. It is not claimed that there was any adjudication of the house itself affirming or denying such title.

To determine this question the committee have been led to consider three others, the decision of which, in our judgment, disposes of the whole case.

First. Which of the two sets or groups of five members claiming to sit for the county of Silver Bow had credentials from the officer or board entitled to canvass the vote and declare the result?

Second. If one group of five had the lawful credentials, but the other group were in fact elected, which was legally entitled to sit in the house at its original organization, and remain and take part in all subsequent proceedings until the house itself had adjudicated their title, there being in existence two bodies each claiming to be the true house?

Third. Is there evidence which warrants the Senate in finding that the persons who had the credentials were not, in fact, duly elected?

There was another view of the case which in the opinion of one or two only of the committee rendered the foregoing questions immaterial. We will refer to it before closing the report. But the foregoing statement presents the whole matter to be inquired into, as understood by the large majority of the committee.

First. Who had the lawful credentials? It appears from the record of the body. which met at the Iron Hall that "the roll of the members elected and holding certificates of the State canvassing board was called," and that thirty members answered to their names, including Messrs. A. F. Bray, P. R. Dolman, F. H. Hoffman, J. H. Monteath, and William Thompson, claiming to be members from Silver Bow; that these persons took the oath of office, took part in the organization, and remained members of said body until after the election of Messrs. Sanders and Power, in which they took part. The certificate of the State canvassing board will be found in the appendix, marked A.

It appears from the records of the body which met at the court-house that the roll of the members elected was called and twenty-eight persons, holding certificates of election from the clerks of their respective counties, appeared and answered to their names, including Messrs. Thomas F. Courtney, A. H. Day, A. M. Dusseault, John W. Gilligan, and Joseph Hogan, claiming to be members from Silver Bow; that these persons took the oath of office, took part in the organization, and remained members of said body until after the election of Messrs. Clark and Maginnis, in which they took part. As our decision does not depend upon any question as to the form of the certificate of the county clerk, it is not necessary to annex a copy of his certificate.

The enabling act, which authorized a constitutional convention for Montana, was approved by the President February 22, 1889. It provided (section 24)—

"The constitutional convention may, by ordinance, provide for the election of officers for full State governments, including members of the legislature." It is also provided (section 8):

"And the constitutional conventions which may assemble in North Dakota, Mon