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UNITED STATES SENATE,
Washington, D.C. The subcommittee met pursuant to adjournment, at 2 o'clock p. m., Senator Selden P. Spencer presiding.
Present: Senators Spencer (chairman), Watson, Ernst, King, and Neely.
Present also: Luther Nickels, Esq., and Scott Woodward, Esq., counsel for contestant, and W. F. Zumbrunn, Esq., W. P. McLean, jr., Esq., and W. A. Hanger, Esq., counsel for the contestee.
The committee met pursuant to Senate Resolution 97, which is here printed in full as follows:
['S. Res. 97, Sixty-eighth Congress, first session] Whereas charges of excessive and illegal expenditures of money and of unlawful practices have been made in connection with the primary nomination and the election of a Senator from the State of Texas, which election was held on the 7th day of November, 1922: Therefore be it
Resolved, That the Committee on Privileges and Elections, or any subcommittee thereof, be, and it is hereby authorized and directed to investigate the said charges and counter charges, if any, of excessive and illegal expenditures of money and of unlawful practices in comection with the said election of a Senator from the State of Texas, including the proceedings for the nomination of candidates at the primary heretofore held, and to take possession of the ballots, poll lists, registration lists, tally lists, and all other documents and records relating to the said primary nomination and election; and the Sergeant at Arms of the Senate, and his deputies and assistants, be, and they are hereby, instructed to carry out the directions of the said Committee on Privileges and Elections, or any subcommittee thereof, in that behalf; and that the said Committee on Privileges and Elections, or any subcommittee thereof, be, and it is hereby, directed to proceed with all convenient speed to take all necessary steps for the preservation of the said ballots, poll lists, registration lists, tally lists, and other documents, and to recount the said ballots, and to take and preserve all evidence as to the various matters alleged in the said charges and counter charges and any answers hereafter filed, and of any alleged fraud, irregularity, and excessive or illegal expenditures of money, and of any unlawful practices in the said election and primary, and as to the intimidaton of voters or other facts affecting the result of said election.
Resolved further, That the Committee on Privileges and Elections, or any subcommittee thereof, be authorized to sit during the sessions of the Senate and during any recess of the Senate, or of the Congress, and to hold its sessions at such place or places as it shall deem most convenient for the purposes of the investigation; and to have full power to subpæna parties and witnesses, and to require the production of all papers, books, and documents, and other evidence relating to the said investigation; and to employ clerks and other necessary assistants, and stenographers (at a cost not to exceed 25 cents per one hundred words). to take and make a record of all evidence taken and
received by the committee; and to keep a record of its proceedings; and to have such evidence, records, and other matter required by the committee printed.
Resowed further, That the Sergeant at Arms of the Senate and his deputies and assistants are hereby required to attend the said Committee on Privileges and Elections, or any subcommittee thereof, and to execute its directions; that the chairman or any member of the committee be, and is hereby, empowered to administer oaths; that each of the parties to the said contest be entitled to representatives and attorneys at the recount and the taking of evidence; that all disputed ballots and records be preserved so that final action may be had thereon by the full committee and the Senate; that the committee may appoint subcommittees of one or more members to represent the committee at the various places in the making of the recount and the taking of evidence, and the committee may appoint such supervisors of the recount as it may deem best; and that the committee may adopt and enforce such rules and regulations for the conduct of the recount and the taking of evidence as it may deem wise, not inconsistent with this resolution; and that the committee shall report to the Senate as early as may be, and from time to time, if it deems best, submit all the testimony and the result of the recount and of the investigation.
Resolved further, That the expenses incurred in the carrying out of these resolutions shall be paid from the contingent fund of the Senate upon vouchers ordered by the committee, or any subcommittee thereof, and approved by the chairman of the committee.
The CHAIRMAN. The committee will come to order. The burden of proof in this case is upon the contestant.
The question in regard to which we are hearing to-day is the illegal expenditure of money.
Are counsel for the contestant ready to proceed?
Senator KING. Mr. Chairman, has the attention of counsel for the respective parties been called to the matter of the subpænaing of witnesses and the charging of the same to the Government? Mr. Neely and myself addressed a letter to the chairman of this committee expressing our views on this matter, and I want to emphasize it now, that if witnesses are subpænaed and their testimony is immaterial or irrelevant, or is merely cumulative, we shall object to the (overnment of the United States paying one cent of the witness fees or mileage. I think that before subpanas are issued by either party the committee ought to be made aware of the names of the witnesses, the character of the testimony, and determine whether or not the testimony is material and relevant; and I think that the counsel ought to file affidavits stating the usual ficts, before subpænas are issued.
The CHAIRMAN. The subcommittee had that matter up at the last meeting, which you were unable to attend.
Senator Kixg. No; I was in the Finance Committee.
The CHAIRMAN. And agreed that counsel should be admonished along those lines; that we did not want to hear witnesses whose testimony was merely cumulative, nor did we want a large number of witnesses; that we would hold counsel responsible for the materiality and relevancy of the testimony of witnesses, and they were cautioned along the very line you mention, Senator King. My understanding is that to-day there were four or five witnesses to come, and that probably there would be five or six, or a larger number, subpoenaed for Monday.
Senator NFLY. That there may be no misunderstanding in regard to the attitude of the committee in regard to this matter, I make a motion, which I have reduced to writing. I move that in the
future no subpoenas be issued in behalf of either the contestant or contestee unless the application for such subpænas be reduced to writing and accompanied by a written statement of the testimony which the witness will adduce before this committee and showing the materiality thereof. I further move that all applications for process be signed by counsel and that a copy of all applications be served upon opposing counsel prior to the filing of the original with the committee.
Of course, I do not mean that there shall be a written statement, and that that statement shall be followed and set out here by the testimony, but that there shall be a sufficient statement to show the materiality and relevancy of the testimony.
The CHAIRMAN. Perhaps it would be fair to wait until the case opens a little, and to give each side an opportunity to proceed without restrictions for the present; you have heard the motion of Senator Neely.
Senator Ernst. I am not ready for it yet. Mr. Chairman.
Senator NEELY. My purpose in offering this before any testimony was given was in the event that any of the testimony might prove to be irrelevant or immaterial. This is not by way of criticism of what testimony might be offered. I do not know what witnesses have been subpoenaed or what they will testify to.
Senator Watson. Let us see what they offer.
Senator KING. I want to state this, that if witnesses are subpoenaed and their tesitmony is apparently not relevant or material, I shall object to the United States Government paying one penny of the expense of those witnesses, and I shall carry it to the floor of the Senate, if it is absolutely necessary, to support that position. I am opposed to drag-net subpoenas by either side to bring witnesses here ad libitum, and I think no witness ought to be subpenaed unless counsel place before the subcommittee, under their oath or the oath of their client the name of the witness, where he resides, the general character of the testimony, and its materiality.
The CHAIRMAN. Counsel for contestant may proceed.
Senator King. Of course, it is all for the purpose of saving the Government expense and saving our time. We want to have both parties have full opportunity to present all material and relevant testimony.
Senator NEELY. I wish to concur in the views that have been expressed by Senator King,
Mr. ZUMBRUNN. Before you proceed with the taking of this testimony, I want to present this motion [reading]:
('omes now Earle B. Mayfield, United States Senator from Texas, the contestee, and moves the dismissal of the contest being urged on the part of Hon. George E. B. Peddy; and as grounds therefor assigns the following:
First, that since the general election in November of 1922, and since the 1st of March, 1923, but prior to the convening of the instant Congress of the United States in December, 1923, the said George E. B. Peddy was appointed, did qualify, and has since and still is discharging the duties of assistant Cnited States district attorney in and for the Southern Division of the United States District Court for the State of Texas.
Second, having accepted the appointment of and qualified for and having discharged the duties of assistant l'nited States district attorney the said George E. B. Peddy did then and there and by such act waive his right to a seat in the Senate of the U'nited States, and by the act dil disqualify himself from ac