[Fifty-ninth Congress, first session.]

JOSEPH R. BURTON,

of Kansas.

The credentials of Joseph R. Burton, certifying to his election by the Legislature of Kansas as a Senator from that State for the term beginning March 4, 1901, were submitted to the Senate on January 25, 1901. He took his seat in the Senate on March 4, 1901. On May 22, 1906, a resolution directing the Committee on Privileges and Elections to examine into the legal effect of the decision of the Supreme Court in the case of Joseph R. Burton was adopted in the Senate. (For decision see 202 U. S., 344). Subsequently, on June 5, 1906, a telegram from the governor of Kansas, was laid before the Senate notifying the Senate of the resignation of Mr. Burton. No report was ever made to the Senate on the resolution above referred to.

[Fifty-sixth Congress, second session.]

TUESDAY, JANUARY 25, 1901. Mr. Baker presented the credentials of Joseph Ralph Burton, chosen by the Legislature of the State of Kansas a Senator from that State for the term beginning March 4, 1901; which were read, and ordered to be filed. (Cong. Rec., vol. 35, p. 1591.)

[Fifty-seventh Congress, special session.]

Swearing in of Senators:

MONDAY, MARCH 4, 1901.

In the list, Joseph R. Burton of the State of Kansas. (Cong. Rec., vol. 35, p. 1.)

[Fifty-ninth Congress, first session.]

TUESDAY, MAY 22, 1906.

Mr. HALE. Mr. President, I offer the following resolve. I had intended to ask the Senator from Michigan [Mr. Burrows], the chairman of the Committee on Privileges and Elections, to present the resolve. As he is not here, I send it now to the desk. The resolution was read, as follows:

"Resolved, That the Committee on Privileges and Elections be, and are hereby, directed to examine into the legal effect of the late decision of the Supreme Court in the case of Joseph R. Burton, a Senator from the State of Kansas, and, as soon as may be, to report their recommendation as to what action, if any, shall be taken by the Senate."

The VICE PRESIDENT. Does the Senator from Maine desire the present consideration of the resolution just read?

Mr. HALE. It is simply directing the committee to investigate. There is no objection, I suppose, to the resolution.

The resolution was considered by unanimous consent, and agreed to. (Cong. Rec., vol. 40, p. 7211.)

TUESDAY, JUNE 5, 1906.

The Vice President laid before the Senate the following telegram; which was read, and ordered to lie on the table:

Hon. CHARLES W. FAIRBANKS,

[Telegram.]

TOPEKA, KANS., June 4, 1906.

Vice President of the United States, Washington, D. C.:

Hon. J. R. Burton has this day tendered his resignation as United States Senator from Kansas, and I have accepted the same.

(Cong. Rec., vol. 40, p. 7821.)

E. W. HOCH, Governor of Kansas.

[Sixtieth Congress, first session.]

JOHN W. SMITH,

of Maryland.

On Thursday, March 26, 1908, the credentials of John Walter Smith were presented to the Senate, certifying to the election by the Legislature of Maryland, on the 25th day of March, of the said John Walter Smith as a Senator from that State to fill the vacancy caused by the death of William P. Whyte.

After the reading of the credentials, a motion was made that he be sworn. Objection was made to the oath of office being administered to Mr. Smith upon the expression of opinion that the election was not according to the Constitution and laws of the United States. There was no contest in this case, the ground taken for this objection being that the credentials showed that Mr. Smith was elected on March 25 and the records of the Senate showed that Mr. Whyte died the previous Tuesday, March 17, which, it was contended, was in violation of the Federal act of 1866 providing that in case of a vacancy occurring during a session of the legislature the proceedings to fill such vacancy "shall be had on the second Tuesday after the legislature has organized and has notice of such vacancy." The second Tuesday in this case, it was contended, would

have been March 31.

On the other hand, it was contended that the credentials were regular and that the regular custom should be observed and Mr. Smith be allowed to take the oath on the face of his credentials, without regard for what the records of the Senate showed with reference to the date of Mr. Whyte's death, that being a question for consideration by the Committee of Privileges and Elections after the oath had been administered and the credentials had been ordered referred to that committee. An extended debate followed on the question of the interpretation of the section of the Federal act above referred to, as to whether "the second Tuesday" applied to the date after organization of the legislature when an election could be had or to the date after notice of vacancy when an election should be proceeded with.

A substitute resolution, to refer the credentials to the Committee on Privileges and Elections, was offered for the motion that the oath be administered to Mr. Smith. This substitute failed of adoption by a vote of 28 to 34. The original motion was then adopted, and Mr. Smith, having been sworn, took his seat. No further action was taken in the case.

The history of this case as here presented includes portions of the remarks of certain Senators as presented in the Record, an extract from the debate in the same volume, and the vote on the resolution to refer the credentials to the Committee on Privileges and Elections.

THURSDAY, MArch 26, 1908.

Mr. Rayner presented the credentials of John Walter Smith, elected a Senator by the Legislature of the State of Maryland to fill the vacancy occasioned by the death of Hon. William Pinkney Whyte; which were read and placed on file.

Mr. Kean raised a question as to the presence of a quorum,

Whereupon,

The Vice President directed the roll to be called,

When,

Fifty-six Senators answered to their names,

A quorum being present.

The Secretary read as follows:

To the President of the Senate of the United States:

THE STATE OF MARYLAND,
EXECUTIVE Department.

This is to certify that on the 25th day of March, 1908, John Walter Smith was, in accordance with law, duly chosen by the Legislature of the State of Maryland a Senator from said State to represent said State in the Senate of the United States for the unexpired portion of the term of six years, beginning on the 4th day of March, 1903, to fill the vacancy caused by the decease of Hon. William Pinkney Whyte.

Witness his excellency our governor and our seal hereto affixed at Annapolis this 25th day of March, in year of our Lord 1908.

By the Governor: [SEAL.]

AUSTIN L. CROTHERS.

N. WINSLOW WILLIAMS,
Secretary of State.

Mr. Rayner made a motion that the oath prescribed by law be administered to Mr. Smith. (Cong. Rec., vol. 42, p. 3938.)

[Extracts from remarks of Mr. Burrows, of Michigan, in objection to the oath of office being administered. Found in the proceedings of March 26, 1908, in the Congressional Record, vo'. 42, pp. 393s 3 39, 3945, 3947, 3948.1

Mr. President, it will be observed that this act (act of 1866) prescribes the method of procedure for the election of a Senator under three different conditions: First, at the beginning of a full term; second, for filling a vacancy which happens during a

recess of the legislature; and, third, for filling a vacancy happening when the legislature is in session.

The case now before the Senate arises under section 17 of this act, which is as follows:

"SEC. 17. Whenever, during the session of the legislature of any State, a vacancy occurs in the representation of such State in the Senate, similar proceedings to fill such vacancy shall be had on the second Tuesday after the legislature has organized and has notice of such vacancy."

The Senate will observe that the proceedings for the election of a Senator at the beginning of a term are as follows:

"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."

Section 17 modifies the general course of procedure only in providing that the legislature shall proceed on the second Tuesday after the legislature has organized and has notice of such vacancy.

It appears from the certificate presented and the records of the Senate that this election on the 25th day of March was not the second Tuesday after the organization of the legislature and notification of the vacancy.

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It is conceded that Senator Whyte died on the 17th day of March, and that Mr. Smith's election took place on the 25th. It is admitted that the vacancy happened on Tuesday, March 17. The second Tuesday thereafter would be March 31. The Legislature of Maryland proceeded to the election of a Senator on Tuesday, March 24, and consummated it in joint assembly March 25.

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Mr. President, as to the credentials presented in this case, I think there can be no question but that they are in due form and are not subject, on their face, to criticism. But, in determining the right of Mr. Smith under these credentilas to a seat in the Senate, the Senate will take cognizance of its own records and its journal entries. The credentials presented showing that Mr. Smith was elected on Wednesday, the 25th of March, and the journal of the Senate disclosing that the vacancy occurred on Tuesday, the 17th of March, the Senate has knowledge of these facts, and it seems to me that the validity of his title is thereby impeached, and that instead of a prima facie case being established in favor of the party holding such credentials, a prima facie case is made out against such right.

I think it will throw some light upon this question by alluding to the history of this legislation. The occasion for the enactment of the statute of 1866 every Senator will recall. Congress exercised its power under that provision of the Constitution referred to first in 1842 by directing the manner in which the Members of the House of Representatives should be elected. Previous to that time the whole membership of the House was elected upon a general ticket, so that whatever divisions there might have been in a State politically the dominant party in the State carried the the entire representation. So, in 1842, Congress passed an act under this right to regulate the method of electing Representatives in Congress, declaring that the State should be divided into districts. Then subsequently another act was passed requiring that the election of Members of the House should occur on the same day throughout the United States, so that the practice of colonizing from one State into another on election day should be prevented.

Then came 1866, when this provision was made as to the manner of electing Senators. Previous to that time the legislatures had failed to elect Senators in many instances. One house would act and then the other, and there was no system and no method by which the election could be certainly secured. So Congress sought to regulate the manner of the election of Senators by this provision.

If we turn back to the history of this legislation it throws a flood of light upon the meaning of its provisions, and I think disposes of the contention of Senators on the other side that it was unnecessary to have two weeks elapse after notification before proceeding to fill the vacancy. The act was reported from the Committee on the Judiciary in 1866, a committee composed of Lyman Trumbull, of Illinois; Ira Harris, of New York; Daniel Clark, of New Hampshire; Luke Poland, of Vermont; William M. Stewart, of Nevada; Thomas A. Hendricks, of Indiana; and Reverdy Johnson, of Maryland. That list of names should carry with it the conviction that the act was very carefully framed.

79908°-S. Doc. 1036, 62-3--65

The report of the committee was made on the 9th of July, 1866, and so far as the first and second sections are concerned they were adopted substantially as reported and as they stand to-day. But coming to the section in controversy, providing for filling a vacancy occurring when the legislature is in session, the committee reported as follows:

"And be it further enacted, That whenever, on the meeting of the legislature of any State, a vacancy shall exist in the representation of such State in the Senate of the United States, said legislature shall proceed, on the second Tuesday after the commencement of its session, to elect a person to fill such vacancy, in the manner hereinbefore provided for the election of a Senator for a full term

Now I come to the provision under which this contention has arisen-“and if a vacancy shall happen during the session of the legislature, then on the second Tuesday after the legislature shall have notice thereof.

Now, Mr. President, as this bill was reported from the Committee on the Judiciary the provision over which this controversy has arisen read as follows:

"And if a vacancy shall happen during the session of the legislature, then on the second Tuesday after the legislature shall have notice thereof."

Can anyone misunderstand that language? They could not elect until the second Tuesday after notice. Now, the Senator from Texas [Mr. Culberson] suggests that it was changed. I know that, and I am going to show the Senate how it was changed and for what reason. But, mark you, there was no change in the bill as to the time of electing on the second Tuesday after notice. Let me read the debate. Mr. Clark in his discussion in the Senate said:

"I move further to amend the bill in the fifth line of the second section by inserting the words and organization' after the word 'commencement.'"

That is all, "and organization," leaving the balance just as it read, "the second Tuesday after notice."

"Mr. JOHNSON"

Reverdy Johnson

"How will it read then?

"Mr. CLARK"

Quoting

"And if a vacancy shall happen during the session of the legislature, then on the second Tuesday after the legislature shall have been organized and shall have notice of the vacancy.

That was the only change, and that is the law as it reads to-day. The only change made by the Senate when the bill was before the Senate declaring that the election should take place on the second Tuesday after notice was to insert the words "and organization," so as to read "organization and notice," for the reason that they could not proceed, of course, until after the legislature was organized.

"Mr. TRUMBULL. I suggest to the Senator from New Hampshire that that can hardly be necessary. This provision is, 'If a vacancy shall happen during the session of the legislature." Is it session' of the legislature until it is organized?

Mr. CLARK. It may be. The legislature may be together and sitting, but not organized. I want to avoid that difficulty.

Mr. TRUMBULL. I have no objection to it.

"Mr. CLARK. I think it would make it a little more specific to insert those words." That, Mr. President, is the history of this enactment. That is how the amendment "organization" came in, and thus it conforms to the provision of the other sections. Is it contended that because the word "organization was inserted before the word notice it changed the whole meaning of the section? That can not be possible. The second Tuesday after organization and notice of the vacancy applies with equal force to "notice" as to organization. My contention therefore is that the legislature of Maryland, in proceeding to the election of a Senator on the 25th day of March to fill the vacancy occasioned by the death of Senator Whyte, which occurred on the 17th day of the same month, acted prematurely and in violation of the statute of 1866. Mr. President, I have taken occasion to look over the precedents of the Senate since 1866, when this measure was enacted. There have been 14 deaths in the Senate at a time when the legislature of the State in which the vacancy happened was in session and in not one single instance has any State presumed to defy or ignore this statute and elect until the second Tuesday after they were notified of the vacancy. The cases are all like the one now pending before the Senate-a death during the session, an election by the legislature after the legislature had been notified and the second Tuesday after such notification-and in no single instance has a Senator been permitted to take his seat who has not conformed to that statute.

In the case of George Hearst, of California, who died February 28, 1891, and his successor was elected March 19, 1891, the second Tuesday.

Orville H. Platt, of Connecticut, díed April 21, 1905, and his successor was elected May 10, 1905.

Benjamin H. Hill, of Georgia, died August 16, 1882, and his successor was elected November 15, 1882.

John A. Logan, of Illinois, died December 26, 1886, and his successor was elected January 19, 1887.

James B. Beck, of Kentucky, died May 3, 1890, and his successor was elected May 17, 1890.

Charles Sumner, of Massachusetts, died March 11, 1874, and his successor was elected April 17, 1874.

Russell A. Alger, of Michigan, died January 24, 1907, and his successor was elected February 6, 1907.

William J. Sewell, of New Jersey, died December 27, 1901, and his successor was elected January 29, 1902.

Marcus A. Hanna, of Ohio, died February 15, 1994, and his successor was elected March 2, 1904.

Ambrose E. Burnside died September 13, 1881, and his successor was elected October 1881.

William B. Bate, of Tennessee, died March 9, 1905, and his successor was elected March 21, 1905, and the election on the second Tuesday.

John E. Kenna, of West Virginia, died January 11, 1893, and his successor was elected January 25, 1893.

Matthew H. Carpenter, of Wisconsin, died February 24, 1881, and his successor was elected March 10, 1881.

Asbury C. Latimer died February 20, 1908, and his successor was elected March 6, 1908.

So in all the cases in every other State where a vacancy has occurred in the representation in the Senate from such State during the session of the legislature that legislature has conformed to the statute and waited before filling the vacancy until the second Tuesday after notice of the vacancy.

Now, I submit, Mr. President, to admit the gentleman holding these credentials to a seat in this body is not only in violation of the Constitution and laws of the United States, but he has not even a prima facie case which would entitle him to admission. I insist, therefore, to admit Mr. Smith under these circumstances will be to reverse the judgment of the Senate for 40 years, overthrow all precedents, and receive into the membership of this body a person under circumstances which can not for one moment, in my judgment, be justified.

[Extracts from remarks of Mr. Rayner, of Maryland, in favor of the oath being administered. the proceedings of March 26, 1908, Congressional Record, vol. 42, pp. 3940, 3942, 3944.]

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Found in

Mr. President, * * I shall be very much mistaken if I can not convince the Senate within a very short time that the Senator from Michigan has fallen into an error upon the question under discussion. I shall do this principally by precedents that I have that I think conclusively settle the matter.

I wish to state, in the first place, that there is no contestant here at all. There is no protest whatever against the seating of the Senator-elect. Gov. Whyte died last Tuesday a week at 7 o'clock. The general assembly of Maryland, then in session, had immediate notice of his death. The law does not speak of any official notice, and does not require any,

On the following Tuesday-that is to say, Tuesday of this week-the two Houses nitiated their proceedings for the election of a Senator to fill the unexpired term of Senator Whyte. They met on Tuesday for that purpose, and yesterday, Wednesday, met in joint convention. The Senator-elect who is present was declared in accordance with the law to have received the majority of votes and to be the duly elected Senator. The legislature of Maryland adjourns next Monday by constitutional limitation. If the Senator is right in what he states, Maryland will be without its proper representation upon this floor.

Now, Mr. President, what does this section mean? I want Senators to look at it to see whether I am not right in having all the other sections taken with it. You must construe the whole act of 1866 together. You can not take just one provision of an act and give it a construction without looking at the whole of the act. It means this and the Senate will come to the conclusion that it means it, and if it comes to any other conclusion it is treading on dangerous ground-that an election for United