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1857, that in such joint conventions a quorum of both houses must be present.

By the act of 1866 the entire matter was federally determined. The text of the law is given below.40

In the case of James B. Eustis, the Senate held that, under this law, an election made by a majority vote in a joint convention was

40 Rev. Stat., §§ 14-19.

"§ 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.

§ 15. Such election shall be conducted in the following manner: Each house shall openly by viva-voce vote of each member present, name one person for Senator in Congress from such State, and the name of the person so voted for, who receives a majority of the whole number of votes cast in each house, shall be entered on the journal of that house by the clerk or secretary thereof; or if either house fails to give such majority to any person on that day, the fact shall be entered on the journal. At twelve o'clock meridian of the day following that on which proceedings are required to take place as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person has received a majority of all the votes in each house, he shall be declared duly elected Senator. 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, the joint assembly shall then proceed to choose, by a viva-voce vote of each member present, a person for Senator, and the person who receives a majority of all the votes of the 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 assembly shall meet at twelve o'clock meridian of each succeeding day during the session of the legislature, and shall take at least one vote, until a Senator is elected."

§ 16. Whenever on the meeting of the legislature of any State a vacancy exists in the representation of such State in the Senate, the legis lature shall proceed, on the second Tuesday after meeting and organization, to elect a person to fill such vacancy, in the manner prescribed in the preceding section for the election of a Senator for a full term.

§ 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.

§ 18. It shall be the duty of the executive of the State from which any Senator has been chosen, to certify his election, under the seal of the State, to the President of the Senate of the United States.

§ 19. The certificate mentioned in the preceding section shall be countersigned by the secretary of state of the State.

valid, even though there was not present a quorum of one of the

houses.

When there is a dispute as to which of two contesting state bodies is the de jure legislature, the United States Senate, while having the power to exercise its own judgment will ordinarily recognize that body which is. accepted as de jure by the other state authorities.

§ 245. Popular Election of Senators.

The constitutional provision that Senators shall in each State be elected by the legislature thereof has, in a number of instances, been practically evaded by state laws or party regulations providing either that the people shall by popular vote indicate their choice for Senators, such indication being in practice, if not legally, binding upon the members of the state legislature; or that each political party shall in a primary vote indicate its choice, which choice in effect binds the party's Representatives in the state legislature.11

§ 246. Vacancies in the Senate.

It is provided by the Constitution that if vacancies in the Senate "happen by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies."

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There has been considerable difference of opinion as to the proper construction to be given to the term "happen as employed in the foregoing constitutional clause. By some it has been argued that a vacancy "happens" whenever, for any reason whatever, there is a vacancy in the representation of a State in the Senate. By others, it is asserted, that where a state legislature has had the opportunity to elect a Senator and has failed to do so, it cannot be said that a vacancy has "happened" but that it has been present and brought about by the non-action of the state electoral body, and that that body has thus impliedly

41 See Haynes, The Election of Senators. Also Sen. Rep. 530, 54th Cong., 1st Sess.; and Sen. Doc. 406, 57th Cong., 1st Sess.

shown that it does not desire the vacancy to be filled. This was the position taken by the Senate in 1900 in the case of Senator Quay from Pennsylvania. The Committee on Privileges and Elections, in its report to the Senate recommending this action, after stating the facts, said: "It will thus be seen that the va cancy, which the Governor of Pennsylvania has here attempted to provide for by a temporary appointment, was one which was foreseen, one which was caused by the expiration of a prior term, one which occurred while the legislature of Pennsylvania was in session, and one which that legislature had an opportunity of filling before it occurred, in the interim between the date of the occurrence and the appointment of the Governor.

Under these

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facts we think that the appointment is invalid. vacancy in the office of United States Senator occurs or comes to pass, if the next legislature does not fill it, it continues to exist. It is the same vacancy, not a new one. Now the state executive is given power to make temporary appointments in case of a vacancy not as long as it continues or exists, but only until the next meeting of the legislature, which is then required to fill the vacancy. This clearly means that the paramount intent to have the legislature choose the Senators is to prevail, and that, whenever the legislature has had the opportunity to fill the vacancy, either before or after it occurs, the executive has no power to appoint." 42

The senatorial practice has not been uniform in respect to executive appointments to fill vacancies, but the action in the Quay case has probably determined the doctrine for the future.

§ 247. Vacancies in the House of Representatives.

When vacancies happen in the representation from any State, it is provided that the executive authority thereof shall issue writs of election to fill such vacancies.

Vacancies are occasioned by death, by resignation, or by acceptance of a disqualifying office. 43

42 Sen. Rpt. 153, 56th Cong., 1st Sess.

43 Van Ness Case, Cl. & H. 122.

CHAPTER XXXIX.

THE PROCESS OF LEGISLATION AS CONSTITUTIONALLY

DETERMINED.

§ 248. Constitutional Provisions.

To a certain extent the manner of conducting business in Congress, and the process of legislation are determined by the Constitution. It is provided that the Vice-President shall be the president of the Senate, but shall have no vote except in case of a tie. The Senate, however, is empowered to choose its other officers, including the president pro tempore to preside in the absence of the Vice-President or when he is exercising the office of President of the United States. The House is empowered to choose all of the officers, including its presiding officer, the Speaker.

It is required that Congress shall assemble at least once in every year, and that such meeting shall be on the first Monday in December, unless by law a different day is appointed.

A majority of each House is fixed as a quorum to do business, but a smaller number is competent to adjourn from day to day, and to compel the attendance of absent members in such manner and under such penalties as each House may provide.

Each House is authorized to determine the rules of its procedure, to punish its members for disorderly behavior, and, as we have seen, with the concurrence of two-thirds to expel a member.

Neither House may, without the consent of the other House, during a session of Congress adjourn for more than three days, nor to any other place than that in which the Houses are sitting.

Each House is required to keep a journal of its proceedings, and from time to time to publish the same, excepting such parts as may in their judgment require secrecy; and it is ordered that, at the desire of one-fifth of those present, the yeas and nays of members of either House on any question shall be entered on this journal.

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The foregoing constitutional provisions impose duties upon and grant powers to the two Houses of Congress, the fulfilment and exercise of which are placed within the discretion of the Houses themselves. Very few questions arising under these clauses have, therefore, been, or could have been, brought before the courts. One important point has, however, been raised and deserves attention. This is discussed in the next section.

§ 249. Conclusiveness of the Records of Congressional Proceedings.

In a few instances the validity of laws purported to have been enacted by Congress has been questioned upon the ground that they have not, in fact, been enacted by that body in accordance with the requirements of the Constitution. This has necessitated the examination of the records of the proceedings of Congress and a determination of the evidential value to be given to these proceedings.

In Field v. Clark' it was contended by the appellants that an enrolled act in the custody of the Secretary of State, and appearing upon its face to be a law enacted by Congress, was a nullity, because, as was shown by the records of proceedings in Congress, and the reports of committees, including that of the committee on conference, a section of the bill as finally passed was not in the bill authenticated by the signatures of the presiding officers of the two Houses and signed by the President. The court, however, declared that the attestation of the Speaker of the House and of the President of the Senate, the signature of the President of the United States, and the deposit of a measure as a law in the public archives are to be taken as unimpeachable evidence that the constitutional requirements for legislation have been satisfied, and that the measure as thus certified to has received the approval of the legislative branch of the government. The opinion concludes: "We are of the opinion, for the reasons stated, that it is not competent for the appellants to show, from the journals of either House, from the reports of committees, or from other documents,

1143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

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