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thorities exercised in pursuance of the enabling act. (Case of Phelps and Cavanaugh of Minnesota, 1 Bartlett, 248.) But if the territory is not organized at the time of the holding of an election for delegate, the same is void. (Case of 7. S. Casement, 2 Bart

lett 516.)

§ 173. Whether, when a State government is formed of a part of an organized territory, the remainder of such territory continues to enjoy the benefits of the original territorial organization, and among them the right to be represented in Congress by a delegate, seems to be an unsettled question. In Fuller vs. Kingsbury, (1 Bartlett 251,) the house held against the report of the majority of the committee, that upon the admission of the State of Minnesota, the territory of Minnesota ceased to be, and that so much of the territory as lay outside the limits of the State, was left without any legally organized government, and that the people thereof were not entitled to elect a delegate in Congress until that right was conferred upon them by Statute. And this ruling would seem to accord with reason, and yet it appears that the opposite rule was adopted in the case of Paul Fearing of Ohio Territory in 1802, and in the case of Henry H. Sibley of Wisconsin Territory in 1848. (See report of majority of committee in Fuller vs. Kingsbury, 2 Bartlett, 253.) There may be a distinction between a case where the territory is very large and a State is formed out of it, leaving yet a large territory and considerable population within the original territorial limits, and one where the State when formed embraces the principal part of the territory and its population, and this may explain the apparent conflict.

174. In Chrisman vs. Anderson, (1 Bartlett, 328,) it was held to be the duty of the house of Representatives in the investigation of an election contest to go behind all certificates for the purpose of correcting mistakes brought to its notice. In the same case however it was held that a return not signed or certified by any of the officers of the election, was not admissible, and the same point was held in Barnes vs. Adams. (2 Bartlett, 760.) It is the duty of the party seeking to avail himself of a vote which is not legally certified or returned, to make the necessary proof to supply the place of the usual formal certificate and return, and if he fails to do so, such vote cannot of course be received.

§ 175. Where the Statute directed the returns of an election for representatives in Congress to be filed with the County Judge, and an abstract forwarded to the Secretary of State, and the County officers mistaking their duty forwarded the original returns to the Secretary of State, it was held that this did not vitiate the election, or furnish proper ground for throwing out the vote of the entire county. In the absence of fraud, an irregularity of this character, not affecting the result in any way, cannot be regarded as sufficient cause for rejecting the vote of a county, or even of a voting precinct. (Bennett vs. Chapman, 1 Bartlett, 204,) and see also Clark vs. Hall, (Ibid. 215.) The Statute in question clearly belonged to that class of statutory provisions concerning the conduct of elections, which are directory merely.

176. It was held by the House of Representa tives of the United States, after a long and able dis

cussion, that where the legislature of a State has failed to provide the time, place and manner of hold. ing an election to fill a vacancy occurring in the house; that the Governor of such State, upon being informed of the vacancy, may issue a writ of election, and therein fix the time and places of holding such election. [Case of John Hoge, of Penn. Cl. & H., 135.] The power given to the Governor, by the second section of the first article of the Constitution, to issue writs of election to fill vacancies, carries with it the power to fix the times and places of holding such election in cases where such times and places are not fixed by law.

It is of course desirable and indeed necessary, that proclamation be made of such election, or that it appear that it was generally known for a reasonable length of time, though in the case just referred to it was held, that a very short notice (only two or three days) was sufficient, when it appeared that the election was fixed for the same day as the election for President and Vice President of the United States, and where it was evident that the great mass of the electors were in fact apprised of it, and participated in it.

§ 177. If a case should arise where no authority, either State or federal, has fixed either the time or place of electing a Representative in Congress, no election could be legally held. And yet, if, in such an event, the electors, by common consent should come together and choose a Representative, the house might validate their action, and admit their chosen Representative. Such action would be within the power, and therefore, within the discretion of the house.

§ 178. But whether a military Governor may, under any circumstances, order or fix the time of an election for Representatives in Congress, has been much discussed. The better opinion seems to be that if the government of a State has been disorganized by insurrection and rebellion, or otherwise, so that there are no State officials, and can be none until an election occurs, the United States may take military control of the territory of such State, and appoint a military Governor, who may perform such acts as may be required of the executive of such State, as a prerequisite to the holding of an election. The reason for this doctrine was thus stated by the report of the committee of elections in the Louisiana case, in the 37th Congress, (1 Bartlett, 446,) and again repeated in case of M. F. Bonzano, (2 Bartlett, 1,) as follows:

"Representation is one of the very essentials of a republican form of government, and no one doubts that the United States cannot fulfill this obligation without guaranteeing that representation here. It was in fulfillment of this obligation that the army of the Union entered New Orleans, drove out the rebel usurpation, and restored to the discharge of its appropriate functions, the civil authority there. Its work is not ended till there is representation here. It cannot secure that representation through the aid of a rebel Governor. Hence the necessity for a military Governor to discharge such functions, both military and civil, which necessity imposes in the interim between the absolute reign of rebellion and the complete restoration of law. Suppose Governor Moore to be the only traitor in Louisiana;

one of two things must take place: the people must remain unrepresented, or some one must assume to fix a time to hold these elections. Which alternative approaches nearest to republicanism, nearest to the fulfillment of our obligations to guarantee a republican form of government to that people-closing the door of representation, or recognizing as valid the time fixed by the military Governor? Are this people to wait for representation here till their rebel Governor returns to his loyalty and appoints a day for an election, or is the government to guarantee that representation as best it may? The committee cannot distinguish between this act of the military Governor, and the many civil functions he is performing every day, acquiesced in by everybody. To pronounce this illegal, and refuse to recognize it, is to pronounce his whole administration void and a usurpation. But necessity put him there and

keeps him there."

179. In the case of Jared Perkins of New Hampshire, (1 Bartlett, 142,) the following facts appeared: On the second day of July, 1846, the State of New Hampshire was divided by an act of her legislature into four Congressional districts, and in March, 1849, a representative in Congress was chosen from each of said districts, and the gentlemen so chosen took their seats as members of the 31st Congress. In July, 1850, by another act of the legislature, said State was re-districted, and the boundaries of the several districts changed. In September, 1850, Hon. James Wilson, who was the representative from the old third district, resigned. A vacancy having been thus created, the Governor ordered an elec

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