cepting, qualifying for, and taking the oath of office as a Senator of the United States.

Third, if Mr. Peddy could successfully prosecute his contest, which is not admitted but denied. h's right to a seat in the Senate of the United States would date from the 4th of March, 1923, and Mr. Peddy would thereupon beentitled to receive and would receive compensation as United States Senator and at the same time be receiving compensation as assistant United States district attorney, all of which would be in violation of and come within the inhibition of the constitutional provisions of the United States of America.

The contestee at the proper time will produce proof of the facts assigned in this motion; and for the reasons assigned it is urged that the contest be dismissed.

Respectfully submitted.

W. A. HANGER,

W. P. MCLEAN, Jr..

W. F. ZUMBRUNN, Attorneys for Earle B. Mayfield.

Since preparing that motion this morning. I have received the proof which I want to tender in connection with it, which is represented by affidavits, showing that Mr. Peddy was appointed a special assistant to the Attorney General rather than assistant United States district attorney, as I have it assigned in the motion. I want to tender the affidavit in support of the motion, to which are attached excerpts from the Constitution of the United States, which prevent anyone from receiving compensation or holding two offices representing the Government of the United States at the same time. I desire to file that in support of this motion.

Senator KING. May I ask you one question?

Mr. ZUMBRUNN. Yes, sir.

Senator KING. Assume that Mr. Peddy, by reason of the act referred to or any other act, should be disqualified: is not the question still before the committee?

Mr. ZUMBRUNN. Oh, yes; there is no question about that. I am going to reach that.

I am preparing and will submit to the committee within a very short time a brief touching the legal questions involved, and I will call your attention to the precedents that have been established by the House and by the courts of the United States, and I do not think there will be any question, when you read that brief, that the contest itself ought to be dismissed.

That leaves us with the protest.

We have tendered this motion at this time in order that there might not be any misunderstanding on the part of the committee with reference to the position assumed by counsel for Mr. Mayfield. The CHAIRMAN. Mr. Zumbrunn, have you received copies of the brief of the contestant on the legal effect of the ballots?

Mr. ZUMBRUNN. Yes, sir; but you will recall when we had our meetings here for the taking of testimony, which is to-day. The brief of counsel for contestant was delivered to us while we were eating breakfast in my room two days ago. They had practically 10 days in the preparation of that brief, and the time was so limited that we have not found sufficient opportunity to reply, and we will ask for leave to file our brief in reply by Tuesday of next week.

The CHAIRMAN. There is no objection. The contestant may proceed.

Mr. NICKELS. There are some witnesses in the room that we would like to have sworn in at this time.

The CHAIRMAN. Will you take them one at a time or have them sworn together?

Mr. NICKELS. I would like to have them all sworn at this time. I see them here in the committee room, some of them.

The CHAIRMAN. I will call the names I have on this list. Mr. McNamara, Mr. John C. Townes, Mr. J. E. MeQuinn, Mr. Erwin J. Clark, of Houston, Tex.; Mr. Hunter, and R. L. Henry.

Each of the witnesses named who was present arose and remained standing in the committee room as his name was called by the chairman.)

The CHAIRMAN. Four of these gentlemen are here.

Mr. NICKELS. I believe that is all.

The CHAIRMAN. Those four are all that are present here to-day?
Mr. NICKELS. Yes, sir.

The CHAIRMAN. For the record I will state the full names and residences of these witnesses. They are Mr. Mike McNamara, residing at Waco, Tex.; Mr. John C. Townes, jr., residing at Houston, Tex.: Mr. Erwin J. Clark, who lives at Houston and was subpoenaed here, and Mr. R. L. Henry, Houston, Tex.

(The four witnesses above named were here sworn by the chairman.)

Mr. NICKELS. We will examine Mr. McNamara first.

TESTIMONY OF MIKE MCNAMARA

Mr. ZUMERUNN. Mr. Chairman, have you any rule as to the exclusion of witnesses from the room?

The CHAIRMAN. We have not any rule.

Senator KING. I assume that the committee would consider any application of counsel.

Mr. ZUMERUNN. The rule is that the witnesses other than the witness on the stand be excluded from the room, and the witness on the stand be admonished not to reveal the nature of his testimony to any witness yet to be called.

The CHAIRMAN. The general rule of law in those matters is that. where a reason is given and sufficient cause is shown, witnesses are excluded.

The latter part of your motion would be a difficult thing in a public hearing, because there would be the room full of people who would hear everything that each witness said and could tell it.

Senator KING. The rule is that the witness shall not talk with witnesses concerning the testimony.

The CHAIRMAN. It is suggested by counsel for contestee that witnesses be excluded from the hearing room until they are called for testimony, and that witnesses who are testifying be admonished not to disclose the nature of their testimony to other witnesses. Is that your point, Mr. Zumbrunn?

Mr. ZUMBRUNN. Yes.

The CHAIRMAN. What have counsel for the contestant to say as to that?

Mr. NICKELS. As a matter of course, Mr. Chairman, we have no particular objection to that. We think that the exclusion of the other witnesses as proposed would perhaps be a hardship. That is a thing we have nothing to do with.

Senator KING. I think it is usually granted pro forma, and I see no reason why we should deny the request.

Senator WATSON. I think not, if they want it done.

Senator KING. I move that the request be granted.

The CHAIRMAN. Such will be the rule of the committee. Those three witnesses who have been sworn, in addition to Mr. McNamara, will make themselves as comfortable as they can on the outside while we are hearing Mr. McNamara.

Senator KING. It might be well to state to counsel that if there are any other persons who may expect to be called, who subsequently come into the room, they should inform them that they should remain outside, because of the rule which has been invoked, which would exclude them.

Mr. NICKELS. We will comply carefully, as far as we know the people. There may be some persons come in whom we will not personally know.

The CHAIRMAN. Proceed with the examination of the witness. Mr. NICKELS. Mr. McNamara, your name is Mike McNamara? Mr. ZUMBRUNN. Just a minute. Before this witness is interrogated, we want to protest against receiving the testimony of the witness here for the reasons which I now assign. Counsel for the contestant a couple of months ago, when we first had our executive hearings or meetings with the committee, made the request of counsel for the contestee that the record in the Corsicana case be received, so far as it is material and proper, as evidence in this contest.

When we had our meeting with Senator Spencer and the other Senators of the committee who were present about two weeks ago, we then dictated into the record the agreement that so far as it was material and competent the record in the Corsicana case may be received.

He

The witness whose testimony is now sought to be introduced was a witness, and one of the chief witnesses in the Corsicana case; and in spite of the agreement counsel saw fit, after he had made it himself, to subpoena this man here and bring him here at great expense, and I want to call the attention of the committee to that fact now. was placed upon the stand in the Corsicana case, and thoroughly examined on his examination in chief, and was thoroughly cross-examined, as the record in that case shows. That record is here. The request was made by counsel for the contestant that he be permitted to use that record, to which we agreed.

Now, I want to call the committee's attention to the fact that in the face of that agreement, and in the face of the fact that they thanked us 10 days ago for making that agreement, they now bring this witness here at great expense, a long ways from home, and now seek to introduce him as a witness to testify here.

The CHAIRMAN. The committee has no means of knowing what this witness will testify. The objection will be overruled at this time.

Senator KING. First, I would like to know if that was an agreement?

Mr. ZUMBRUNN. It was dictated into the record, and that was the agreement. Senator Watson and Senator Ernst were both here. Senator KING. Then counsel does not intend to interrogate the witness in regard to the matters to which he testified in that case?

Mr. NICKELS. No further than is necessary. We expect to interrogate him principally about new matter that was not covered in that case; and if counsel saw fit to wait until they learned what this witness was going to testify perhaps he would not have made these unjust remarks that were made. We are perfectly willing that the Senate rule should be applied to any witness we examine. If the testimony is not material and relevant, we will bear the expense.

The CHAIRMAN. You may proceed.

Mr. NICKELS. Mr. McNamara, your name is Mike McNamara ? Mr. MCNAMARA. Yes, sir.

Mr. NICKELS. Where do you live?

Mr. MCNAMARA. Waco, McLennan County, Tex.

Mr. NICKELS. How long have you lived there?

Mr. MCNAMARA. That has been my home for pretty near 33

years.

Mr. NICKELS. How old are you?

Mr. MCNAMARA. Thirty-three years old in June this year.

Mr. NICKELS. During the year 1922, did you occupy any official position with the railroad commission of Texas?

Mr. MCNAMARA. Yes.

Mr. NICKELS. What was that position?

Mr. MCNAMARA. I was deputy oil and gas supervisor.

Mr. NICKELS. In a general way, what were the duties of your position?

Mr. MCNAMARA. Supervision of the oil and gas fields in the district I was located in.

Mr. NICKELS. What was that district?

Mr. MCNAMARA. Graham, in Young County.

Mr. NICKELS. How many counties did that include?

Mr. MCNAMARA. That included that county.

Mr. NICKELS. Young County?

Mr. MCNAMARA. Yes.

Mr. NICKELS. The oil fields in Young County?

Mr. MCNAMARA. Yes.

Mr. NICKELS. Who were the railroad commissioners at that time? Mr. MCNAMARA. Allison Mayfield and Earle B. Mayfield, and Clarence Gilmore.

Mr. NICKELS. When did you become connected with the railroad commission?

Mr. MCNAMARA. In January, 1920.

Mr. NICKELS. And when did you sever your connection with the commission?

Mr. MCNAMARA. I was fired by the railroaad commission October 31, 1922.

Senator WATSON. What was the relation between the two Mayfields?

Mr. MCNAMARA. I think they were cousins.

Mr. NICKELS. State whether or not at any time, say during 1921, and while you were thus employed by the Railroad Commission of Texas, you had any conversation with Mr. Earle B. Mayfield with reference to his contemplated candidacy for the office of United States Senator?

Mr. MCNAMARA. I did.

Mr. NICKELS. Can you approximate the date of that conversation?

Mr. MCNAMARA. It was in July, 1921.

Mr. NICKELS. What, in brief, were the circumstances leading up to the conversation?

Mr. MCNAMARA. I wrote Mr. Mayfield and asked for a leave of absence or vacation. I had not had any vacation since I had been in the commission. He answered my letter stating that he would be very willing to grant it himself, and when I took the vacation and went to Waco to come down to Austin, he had some matters he wanted to talk to me about.

Mr. ZUMBRUNN. That was Earle B. Mayfield you wrote to?
Mr. MCNAMARA. Yes.

Mr. NICKELS. Did you or not get a letter from Mr. Mayfield about your request for a vacation?

Mr. MCNAMARA. Yes, sir.

Mr. NICKELS. Examine this instrument and see whether or not that is the letter [handing paper to the witness].

Mr. MCNAMARA. No, sir; that is not the letter.

Mr. NICKELS. I was mistaken in the date. Examine this instrument and see whether that is the letter you received from Mr. Mayfield, to which you referred [handing witness another paper]. Mr. MCNAMARA. That is.

Mr. NICKELS. Now, if there is any particular part of that letter on which you acted in making the trip to Austin to confer with Mr. Mayfield, point out that portion of it.

Mr. MCNAMARA. The second paragraph.

Senator WATSON. Let us have it read and find out what it is about.

Mr. NICKELS. Do you want the whole letter read?

Senator WATSON. Yes, let us have it. I will read it. [Reading]:

RAILROAD COMMISSION OF TEXAS.
Austin, June 22. 1921.

Mr. MIKE MCNAMARA.

Graham, Ter.

DEAR MIKE: I have your letter of the 19th and contents noted. As to your vacation, I beg to advise that as far as I am concerned personally I have no objection to your taking a vacation and will be willing to leave it to you when you will take the same. However, let me suggest that you make application to the railroad commission for a vacation and address your letter to Hon. Allison Mayfield, chairman of the commission.

When you come down to this section of the State I want you to be sure to wire me when you can come to Austin as I desire to discuss with you several important matters.

With kin lest regards and best wishes, I beg to remain.

Sincerely your friend,

EARLE B. MAYFIELD.

Mr. NICKELS. Now, as a result of the discussion of the question of your vacation, did you or not go to Austin and confer with Mr. Mayfield?

Mr. MCNAMARA. I did.

Mr. NICKELS. Can you approximate the dates when you were there for that purpose?

Mr. MCNAMARA. Somewhere between the 10th and the 13th.

Mr. NICKELS. Of July?

Mr. MCNAMARA. Yes.