of his election, or a resolution of the House declaring him entitled to a seat. In such case, his equitable title to a seat would begin from the first moment of time he was entitled to receive a certificate of election. This would not be prior to the time when it was possible to make the proper returns of the election. The result is, that the claimant is entitled to compensation to be computed from the period within which the election returns were made as required by law on which to base a certificate of election. Or, if no returns were made, compensation should be computed and paid from the period when it would have been practicable to have made them within the limit prescribed by law. The Sergeant-at-Arms of the House of Representatives will be advised accordingly.* TREASURY DEPARTMENT, First Comptroller's Office, February 8, 1883. NOTE BY FIRST COMPTROLLER. * In House Report No. 559, first session Forty-seventh Congress, February 28, 1882, will be found the views of several members of the House Committee on Elections in the contested election case of Cannon v. Campbell, some portions of which are respectively, in substance, as follow: 66 VIEWS OF MR. CALKINS. "If the English doctrine, as it has been applied and enforced in the British Parliament, prevailed in the American Congress, viz, that where the majority candidate is ineligible, and sufficient notice of his ineligibility has been given, the person receiving the next highest number of votes, being eligible, must be declared elected, the governor's position would be unassailable, provided it is true that Mr. Cannon never was naturalized and sufficient notice of the fact had been given. "But the English rule does not prevail in America. In the case of Smith v. Brown, 2 Bartlett, 395, in the report submitted by Mr. Dawes, then chairman of the Committee on Elections, it is declared "That the law of the British Parliament, in this particular, has never been adopted in this country, and is wholly inapplicable to the system of government under which we live.' "And Judge McCrary in his work on contested elections, in words as perspicuous as they are terse, sums up the matter thus : It is a fundamental idea with us that the majority shall rule, and that a majority, or at least a plurality, shall be required to elect a person to office, by popular vote. "An election with us is the deliberate choice of a majority or plurality of the electors. Any doctrine which opens the way for minority rule in any case is anti-republican and anti-American.'" (McCrary, ó 234.) One objection made to Mr. Cannon's right to a seat was, that he was not a citizen. He presented a certificate of naturalization dated December 7, 1854, signed by the clerk of the United States district court for the Territory of Utah, and under the seal of the court, and a record book of naturalization kept by the clerk, in which was a memorandum of this and other naturalizations. As to this certificate, it is said by Mr. Calkins in the House report above referred to: "It is objected that this was not signed by the judge, and was therefore not a proper record of the court, and that the naturalization papers thus issued are void. We cannot agree to that proposition. In some of the States of the Union, the signing of the record by a judge is made mandatory, in others it is made directory only, and in others still it is not required at all. At common law no judgment-roll was required to be signed by the presiding judge. Hence it is purely a statutory provision. We are inclined to the opinion that the law is not mandatory, as applied to the Territory of Utah, requiring the judge to sign the record. But however this may be, we are inclined to hold that this was a sufficient naturalization under the laws of the United States, especially where it is affirmatively shown by Mr. Cannon that the proceedings in court were regular in form, that witnesses were duly sworn who testified to necessary facts, and that judgment was orally pronounced by the court from the bench. It is the judgment of the court which makes its action efficacious, and not the accuracy with which the clerk writes it down. (Stephen, Pl., 138; Whitney r. Townsend, 67 N. Y., 40; Rollins v. Henry, 78 N. C., 342; Van Vleit r. Philips, 5 Iowa, 558; Childs v. McChesny, 20 Iowa, 431; Jorgenson v. Griffin, 14 Minn., 464.) "The other point made, that Mr. Cannon had not been a resident of any State or Territory of the United States for five years next preceding the date of naturalization, involves quite a novel question. We hold, however, on this point, that the record cannot be collaterally questioned, and that therefore it is incompetent to show by evidence in this proceeding that the certificate is null. (Pruit v. Cummings, 16 Wend., 616; State r. Penny, 10 Ark., 616; McCarthy r. Marsh, 1 Seld., 263; In re Colman, 15 Blatchf., 406; Spratt v. Spratt, 4 Pet., 393.) * "We are now brought face to face with the question, whether this House will admit to a seat a Delegate who practices and teaches the doctrine of a plurality of wives, in violation of the statute of the United States." And he then cites the Constitution, Art. I, sections 1, 2, and 5; and Art. IV, section 3, par. 2, and says: "There is no provision in the Constitution for the election of Delegates to the House of Representatives or to the Senate. They are entirely the creature of statute. They are clearly not within the clause of the Constitution last above quoted, for the House is "composed of members chosen every second year by the people of the several States"; and nothing is said of the Territories. Delegates have never been regarded as members, in any constitutional sense, because their powers, duties, and privileges on the floor of the House when admitted, are limited. They may speak for their Territories; they may advocate such measures as they think proper; they may introduce bills and serve on committees; but they are deprived of the right to vote. And we doubt whether Congress could clothe them with the right to vote on measures affecting the people of the States or of the Territories, because they do not represent any integral part of the nation, but simply an unorganized territory belonging to the whole peo ple. Hence, Delegates are creatures of statute, and it would be competent, at any time, for the legislative branch of the Government to abolish the office altogether. "The writer of this report goes further than that. He holds that it is incompetent for Congress and the Executive to impose on any future House the right of Delegates to seats with defined qualifications." Mr. Calkins then says, as to Mr. Cannon: "Having admitted that he practices, teaches and advises others to the commission of that offense [polygamy], we feel it our duty to say to the people of that Territory that we will exclude such persons from representing them in this House. In saying this we desire to cast no imputation on the contestant personally, because in his deportment and conduct in all other respects he is certainly the equal of any other person on this floor." VIEWS OF MR. BELTZHOOVER. After an elaborate argument, conclusions were presented by Mr. Beltzhoover as follow: "The following is a summary of the reasons for my concurrence in the resolutions of the majority of the committee: "1. The history of the cession and organization of the Territory, which belonged to the Federal Government at the time of its formation, the history of the clause in the Constitution which relates to that Territory, and the Constitution itself, all show clearly that it was not contemplated or intended that Delegates which might be sent from said Territory, then immediately under the Constitution, should have the same qualifications as members of Congress. "2. The Constitution does not extend over Utah, except as a part of the statute law provided for that Territory by Congress, and there is therefore more reason for holding that the qualifications required for members of Congress by the Constitution, do not extend to Delegates from that Territory, than there is in relation to Delegates from Territory immediately under the Constitution. "3. The Constitution not only does not provide that Delegates shall have the same qualifications as members of Congress, but no law, in almost a century of legislation on the subject, has so provided. "4. There is no reason why the qualifications of Delegates should be the same as those of members of Congress. Their status and duties and powers are widely different, and their qualifications should be made to conform to those powers and duties, which in case of Delegates are purely of a local and business character. "5. The Territories can only be held and governed by Congress with one single pur pose in view, which is to adapt and prepare them for admission as States of the Union. It will hardly be contended that Utah will ever be admitted as a State while polygamy dominates it, or that it is preparing it for admission as a State to hold out to its people the delusive doctrine that a polygamist is not disqualified as a member of Congress, and therefore that polygamy is no bar to the admission of Utah to the Union. "6. No law fixing the qualifications of Delegates passed by any former Congress would be binding on any subsequent Congress. EACH House shall be the judge of the qualifications of its own members, and, for a much stronger reason, IT should be the exclusive judge of the qualifications of the Delegates, which are its creatures, and which it admits as a matter of its own discretion. "7. Congress has held, from 1862 down to this time, that it has the right to prevent the admission of persons as members who are hostile to the Government by excluding them on that ground, although they possess all the other qualifications required by the Constitution; with much more propriety, and much less stretch of power, Congress has the right to exclude a Delegate who is not well disposed toward the Government, and who openly defies its laws." The resolutions of the majority of the committee were those adopted by the House. Other able and elaborate arguments were made, and the minority of the committee concluded their views as follow: "Mr. Campbell insists that although he may be a minority candidate Mr. Cannon's ineligibility entitles him to the seat. If there are any questions settled, beyond the reach of argument, this is one of them. "In the case of Maxwell v. Cannon (Smith, 182) the Committee of Elections say: "The contestant insists upon his right to the seat as the minority candidate, in case the House shall ultimately determine to unseat or expel the sitting member. The counsel for the contestant referred the committee to the case of A. S. Wallace v. W. O. Simpson, in the Forty-first Congress, in support of the claim of contestant. A critical examination of the case will show that it cannot be considered as authority for the doctrine. Not only is this not an authority for the doctrine contended for, but the cases establishing the opposite doctrine are so numerous and uniform as to absolutely remove the question in this country from the realm of debate.' "The committee cite the following cases: Smith v. Brown (2 Bartlett, 395); Ramsey v. Smith (Clark & Hall, 23); Albert Gallatin, Senate, 1793; Philip B. Key, House, 1807; John Bailey, House, 1824; James Shields, Senate, 1849; J. Y. Brown, House, 1859; Cushing's Treatise; Zeigler v. Rice (2 Bartlett, 884); Simeon Corley, P. M. B. Young, Nelson Tift, and R. B. Butler, House, Forty-third Congress; F. E. Shober, House, Forty-first Congress; and J. C. Abbott, Senate, Forty-second Congress. "Our conclusions are that Cannon had a clear majority of the legal votes for Delegate. "That he possesses the necessary qualifications under the Constitution and laws. "That he is entitled to the seat, and we recommend the following resolution for the consideration of the House: "Resolved, That George Q. Cannon was duly elected and returned as Delegate from the Territory of Utah, and is entitled to a seat as Delegate in the Forty-seventh Congress. "S. W. MOULTON. FURTHER PROCEEDINGS IN THE FOREGOING CASE. April 19, 1883, Hon. H. E. Paine, as counsel for Mr. Caine, submitted an argument in his behalf, addressed to the First Comptroller, and saying, inter alia : "There are certain facts, not brought to your notice by Mr. Caine, nor weighed by you in your consideration of the case, which, I think, justify me in earnestly requesting you to inquire whether it is now proper for the disbursing officers of the House, or the accounting officers of the Treasury, to question Mr. Caine's right to compensation for the full term of the Forty-seventh Congress, however strong may be their conviction of the soundness of the original reasoning by which you have reached your decision of the case. "In one hundred and forty different cases, covering a period of thirty years, former disbursing officers of the House and Senate, and accounting officers of the Treasury have, with the knowledge and approval of the House and Senate, adopted and practically enforced a construction of the law exactly opposite to that which commends itself to your judgment in this case. "The Representatives of the State of Kentucky, in the Thirty-fifth, Thirty-sixth, Thirty-seventh, Thirty-eighth, and Thirty-ninth Congresses, were chosen on the first Monday in August, after the commencement of their respective terms. The Representatives from the same State in the Fortieth Congress were chosen on the 4th day of May, after the commencement of their term. These Representatives numbered, in the aggregate, 42. Each received the full compensation for a term of two years. "The Representatives of the State of California, in the Thirty-fifth, Thirty-seventh, Thirty-eighth, Fortieth, Forty-third, Forty-fourth, and Forty-fifth Congresses, twenty-two in number, were all chosen on the first Wednesday in September, after the commencement of their respective terms. Each received compensation for the full term of two years. "The Representatives of the State of Connecticut, in the Thirty-fifth, Thirty-sixth, Thirty-seventh, Thirty-eighth, Thirty-ninth, Fortieth, Forty-first, Forty-second, Forty-third, and Forty-fourth Congresses, numbering forty, were chosen on the first Monday of April, after the commencement of their respective terms. Each received compensation for the full term of two years. "The Representatives of the State of New Hampshire, in the Thirty-fifth, Thirtysixth, Thirty-seventh, Thirty-eighth, Thirty-ninth, Fortieth, Forty-first, Forty-second, Forty-third, and Forty-fourth Congresses, numbering thirty in all, were elected on the second Tuesday of March, after the commencement of their respective terms. Each received full compensation for the term of two years. "Andrew Johnson, a Senator from the State of Tennessee, was elected October 8, 1857, and was paid from the commencement of the term, March 4, 1857. (Credentials of Senators, folio 2, page 395. Senate Ledger, account of Andrew Johnson.) James H. Hammond was elected senator for the State of South Carolina December 7, 1857, and was paid from the commencement of the term, March 4, 1857. (Credentials of Senators, folio 2, page 396. Senate Ledger, account of J. H. Hammond). J. Ĉ. Ten Eyck was chosen senator for the State of New Jersey, March 7, 1859, and was paid from the commencement of the term, March 4, 1859. (Credentials of Senators, folio 2, page 424. Senators' Ledger, account of J. C. Ten Eyck.) M. S. Wilkinson was chosen senator from Minnesota, December 15, 1859, and was paid from the commencement of the term, March 4, 1859. (Credentials of Senators, folio 2, page 427. Senators' Ledger, account of M. S. Wilkinson.) J. A. McDougall was chosen senator for the State of California, April 2, 1861, and was paid from the commencement of the term, March 4, 1861. (Credentials of senators, folio 2, page 451. Senators' Ledger, account of J. A. McDougall.) J. H. Lane was elected senator for the State of Kansas, April 4, 1861, and was paid from the commencement of the term, March 4, 1861. (Credentials of Senators, folio 2, page 452. Senators' Ledger, account of J. H. Lane.) S. C. Pomeroy was chosen a senator for the State of Kansas, April 4, 1861, and was paid from the commencment of the term, March 4, 1861. (Credentials of Senators, folio 2, page 452. Senators' Ledger account of S C. Pomeroy.) P. G. Van Winkle was chosen senator for the State of West Virginia, August 4, 1863, and was paid from the commencement of the term, March 4, 1863. (Credentials of senators, folio 2, page 477. Senators' Ledger account of P. G. Van Winkle.) W. T. Willey was chosen Senator for the State of West Virginia, August 4, 1863, and was paid from the commencement of the term, March 4, 1863. (Credentials of Senators, folio 2, page 478. Senator's Ledger, account of W. T. Willey.) Geo. Vickers was chosen Senator for the State of Maryland, March 7, 1868, and paid from the commencement of the term, March 4, 1867. (Credentials of Senators, folio 2. Senators' Ledger, account of Geo. Vickers.) J. B. Henderson was chosen Senator for the State of Missouri, November 13, 1863, and was paid from the commencement of the term, March 4, 1863. (Credentials of Senators, folio 2, page 479. Senators' Ledger, account of J. B. Henderson.) J. P. Stockton was chosen Senator for the State of New Jersey, March 15, 1865, and was paid from the commencement of the term, March 4, 1865. (Credentials of Senators, folio 2, page 509. Senators Ledger, account of J. P. Stockton.) J. W. Johnston was chosen a Senator for the State of Virginia, March 15, 1871, and was paid from the commencement of the term, March 4, 1871. (Credentials of Senators, folio 3, page 120. Senators' Ledger, account of J. W. Johnston.) Powell Clayton was chosen a Senator for the State of Arkansas, March 14, 1871, and was paid from the commencement of the term, March 4, 1871. (Credentials of Senators, folio 3, page 121. Senators' Ledger, account of Powell Clayton.) T. M. Norwood was chosen a Senator for the State of Georgia, November 14, 1871, and was paid from the commencement of the term, March 4, 1871. (Credentials of Senators, folio 3, page 123. Senators' Ledger, account of T. M. Norwood.) sors. "It is a sound and salutary maxim of administrative law that the precedents established by uniform decisions of administrative officers are authorities for their succesIt is also a rule, established by numerous decisions of the Supreme Court of the United States, that, in the case of a doubtful or ambiguous law, the contemporaneous construction of those who have been called upon to carry it into effect is an authority for the courts as well as the administrative officers. (United States v. Pugh, 99 U. S., 265; United States v. Moore, 95 U. S., 760; Edward's lessee v. Darby, 12 Wheat., 207; United States v. State Bank, 6 Pet., 29; Smythe v. Fiske, 23 Wall., 382; United States t. Alexander, 12 Wall., 177; Peabody v. Stark, 16 Wall., 240; Hahn v. United States, U. S. Supreme Court, March 26, 1883)." Citations of the State laws, under which the elections were held, are hereto appended: Rev. Stat., Ky., 1852, page 288; Ky., Acts, 1867, Chap. 1254, Sec. 1; Gen. Stat., Ky., 1873, page 380, Sec. 2. California, Acts, April 24, 1852; Acts April 15, 1858; Acts April 1, 1864; Acts March 13, 1866; Acts March 11, 1868; Acts April 4, 1870; Political Code, 1872, Secs. 1041, 1343; Amendment Political Code, April 16, 1880, Sec. 1343. Stat., onn., Compilation 1854, p. 449, Sec. 23; p. 463, Sec. 41; Gen. Stat., Conn., revision 1866, p. 372, Sec. 69; p. 383, Sec. 101. New Hampshire, Compiled Stat., 1852, p. 92, Sec. 3; Gen. Stat., N. H., 1867, p. 84, Sec. 3; Gen. Laws, N. H., 1878, p. 103, Sec. 3. OPINION BY WILLIAM LAWRENCE, First Comptroller. The cases cited in the foregoing argument are different from the case of Mr. Caine. The statutes in force now are different from those in force when the salaries were paid in the cases cited. In those cases, so cited, there was only one election in each Congressional district for a representative for each term in Congress, and not two elections as in Caine's Case. Under the election laws then in force, in the States referred to, the regular election was not held until after the term, but before the session, of Congress had commenced. The act of August 16, 1856 (11 Stat., 48), provides: "That the compensation of each Senator, Representative, and Delegate in Congress shall be six thousand dollars for each Congress, and mileage as now provided by law for two sessions only, to be paid in manner following, to wit: on the first day of each regular session each Senator, Representative, and Delegate shall receive his mileage for one session, and on the first day of each month thereafter during each session, compensation at the rate of three thousand dollars per annum during the continuance of such session, and at the end of such session he shall receive the residue of his salary due to him at such time at the rate aforesaid still unpaid; and at the beginning of the second regular session of the Congress, each Senator, Representative, and Delegate shall receive his mileage for such second session and monthly during such session compensation at the rate of three thousand dollars per annum till the fourth day of March terminating the Congress, and on that day each Senator, Representative, and Delegate shall be entitled to receive any balance of the six thousand dollars not theretofore paid in the said monthly installments as above directed." Payments under this, or similar statutes, furnish no authority for payment as asked by the claimant in this case. It has already been shown, that a Representative elect does not become an officer, until a session of Congress commences and he has taken the required oath. (Crowley's Case, 3 Lawrence, Compt. Dec., App., 431.) In the cases of the members elected after a term, but before a session of Congress commenced, they became members of Congress in time to get the full salary, none of which was, or could have been, paid until after a session began, as the act of August 16, 1856, provided. The statute now in force is entirely different. The claimant is not entitled to the payment he demands. First Comptroller's Office, July 21, 1883. |