Before the commission for counting presidential votes in the states where there are more than one return from the electoral colleges, 1877.

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Class IK 5 £.6?

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I

The first questions naturally suggested by this discussion are, what is the character of this Tribunal, and what is the nature of the powers conferred upon it?

The Constitution of the United States embodies the American conception of a Republic. It creates a Government to exercise the powers of sovereignty over certain enumerated subjects. It proceeds upon the fundamental idea that the rights, privileges, and liberties of the people can only be secured against encroachment on the part of those charged with the execution of governmental powers by a careful separation of legislative, executive, and judicial powers, and a distribution of such powers among three great, equal, and co-ordinate departments. The legislative power is vested in the Congress, the executive power is vested in the President, and the judicial power is vested in one Supreme Court, and in such inferior courts as the

Confess may from time to time ordain and establish. "The indues, both of the Supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a stated compensation, which shall not be diminished during their continuance in office." ,

It is well settled that "the judicial power cannot be vested elsewhere than in courts composed of judges holding their offices during good behavior.

It is therefore certain that no part of « the judicial power" can be vested in a Tribunal organized as tins Tribunal is. No Tribunal created by act ot Congress, whose decisions are subject to review except by other judieial courts of superior jurisdiction, can be considered as jndicial court, The Court of Claims, as i original y constituted, could render judgments, so called; but _sueh judgments were submitted to the approval and ultimate 'action of Congress. For this reason, the Supreme Court of the United States held that no appeal would lie from its decisions to the Supreme Court of the United States. Gordon v. The United States, 2 Wall., 561.

After this decision, Congress remodeled that court and gav e conclusive effect to its judgment; sine e wh eh appals have been entertained by the Supreme Court of the United States.

In The United States v. Ferriera, 13 How 40, an act of Confess had conferred upon the district judge of the Un ted 1 as for Florida authority to adjudicate upon certain 2£ arising under the treaty with Spain ; which ^

i „ Vindicated bv him, should be paid, if the, secretary tZ tet:; iudd, on' a report of the evidence, deem it equitable. The court, by Taney, C. J., say :

"The powers conferred by these acts of Congress agon

K^Knir^tlusttlng more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty, or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of that description may constitutionally be conferred on a Secretary as well as on a commissioner. But is not judicial in either case in the sense in which judicial power is granted by the Constitution to the courts of the United States."

See also Ray burn's Case, 2 Dall., 409.

It is, therefore, plain from the provisions of the Constitution that the judicial power could not be vested in this Tribunal, and it is equally clear that the bill organizing this Tribunal does not pretend to clothe it with such power, because the decision, so called, which this Tribunal may render is submitted to the approval of and may be reversed by the two Houses of Congress.

What, then, is this Tribunal? It is, we submit, a mere legislative commission, exercising political power pertaining to the jurisdiction of Congress. Congress finds itself charged with the duty of ascertaining who, if any one, has been elected President of the United States, by the votes cast in ths several Electoral Colleges on the 6th of December last. And to aid it in the performance of this duty — the exercise of this political power — it has raised this commission to investigate, and decide, and report to the two Houses of Congress upon certain matters included in the performance of that duty ; and the bill raising this commission provides that its report shall be made to the two Houses, and shall be conclusive, unless reversed by the Houses themselves.

There is no doubt of the power of both Houses of Congress by law, or perhaps by a joint resolution, to create a commission to investigate and report upon any subject falling within the scope of ordinary legislation, or relating to the performance of any duty cast upon Congress by the Constitution. Similar parliamentary commissions frequently occur in English history; sometimes raised by 2 i"

toes authorized by statute and appointed ^by For instance, by statute 15 aud 16 W >

to enquire into alleged coiiu F F comm issiou

u f t-Lo House of Commons, wnicn eoimu members of the House oi persons and

was authorized by the statute to send ^ to p papers, administer oaths, examine witnesse e 11 swearing before such commission w^db*

tion upon that important subject.

^Constitution ^^^^^Z the votes given in the several Electa ^U- of ^ shall be certified and ret urned to he ft Senate, and then provides as follows .

the Senate aud l* 0086 °* T , THEN be counted.' certificates, and the votes shall then

tion does not declare. M ostot the I the Constitution of the Unit d Stages are ^ ^

some designated department ^or office^ r _

powers, however, conferred upon the ^

erally. For instance, article 4, section *, F follows :

f0 . T W h; United States ^JT^J^CT^ this Union a ^publican foimot gov a p p ii C atiou

protect each of them ^jj^;^ the^egiBlabatW5i?^K domeiiic violence.

The last Cause of the Legislative article confers upon Congress the power — other powers rested by this Constitution in the Government of the United States, or in any Department or Office thereof."

Congress has provided by law for the execution of the power as to protection against domectic violence by the President.

The constitutionality of the bill creating this commission may be considered upon one or the other of two grounds.

(1) If the power to count the votes is vested in the two houses of Congress, then this commission is a proper instrumentality for making the necessary investigation to enable the two houses intelligently to execute the power. If on the other hand the case is to be treated as one of power granted generally — that is, without designation as to who shall perform it — then it falls within the power of Congress to make laws for its execution as a power vested by the Constitution in the Government of the United States, or in some department or officr thereof. If the latter is the true view of the Constitution, then Congress might pass a law creating a commission or court, to be appointed by the President to count the votes, and leave the matter entirely to them.

But, evidently, the bill proceeds upon the theory that the votes are to be counted by the two houses of Congress, because by the bill power is reserved to the two houses to set aside the report — called the decision — to be made by this commission. And considering the matter in this light it is manifest that Congress may impose upon the commission such duties — that is, order it to investigate such questions as it may see fit. It may direct the commission to report what is the prima facie right of either candidate appearing from the face of certain papers, or it may direct this commission to ascertain and report upon the real de jure right of the several candidates.

What duty, then, does the law creating this tribunal impose upon it? The law declares tha' you shall —

" By a majority of votes decide whether any and what votes from such State are the votes provided for by the iTJtZn of the United States, and how rnany and what ■persons were duly appointed electors in such State ?

Inasmuch as by the Constitution no per.on can cast a vote for President who has not been duly appointed an elector, it would undoubtedly have been sufficient to provide that this tribunal should decide "what votes from such State are the votes provided for by the Constitution But for greater certainty, and to end all question, ,t s further expressly provided that this tribunal shall jec do "how many and what persons were duly appointed elec-

tors in such State. ,

And to enable you to perform this duty, the act clothes you with all the powers of the two Houses of Congress What this means may be inferred from the fact that he two Houses of Congress in the last count ofp^den^ votes concurred in deciding that the electoral vote of the Louisiana college ought to be excluded, because the votes cast at the popular election for electors had not been canvassed according to the laws of that State ; thus going behind a regular certificate of the Governor that the electors had been duly appointed, and a regular return of the votes cast by said college. This is at least a construction by the two Houses themselves of their power to go behind the certificate of the Governor to ascertain whether the electors had been duly appointed. It will be said that this was under the 22d joint rule of the two Houses. It seems to be a matter of dispute between the two House to-day whether or not that rule is now in force; but whether it is or uot, is wholly immaterial. Either House, or the two Houses, may regulate practice in the exercise of their constitutional authority; but ueither, nor both, can add to that authority by rules of their own If this ioint rule added to the Constitution, it was void; if it took from the Constitution, it was void ; if it did neither, it was useless. And the concurrent action of both Houses of Congress, in rejecting the vote of Loui 8l ana four years ago, must be regarded as a declaration by them of their power in the premises, and that power they have confered upon this tribunal.

This tribunal has been created to meet a great national emergency. The public welfare and business interests alike require a speedy, final, and satisfactory settlement of the presidential question. The people will be content with, and the rival candidates will acquiesce in, any determination of the question founded upon the full merits of the case. But no one will be content with, no candidate will acquiesce in, a determination of this great question which ignores the merits and rests upon technicalities or false certificates.

It is a total error to suppose that this tribunal can make any decision which, in the judicial sense of that term, can settle this question. And it is an equal error to suppose that Congress has pretended to clothe this tribunal with any such power.

On the contrary, section 6 of this bill reserves to the defeated candidate the right — if any such right now exists by law — to prosecute a writ of quo warranto against the candidate who may be counted in. It has been settled in England for more than one hundred years, and is perfectly well settled in this country, that information in the nature of quo warranto is in its nature a civil proceeding, and must be so classified in the distribution of cases between courts of civil and courts of criminal jurisdiction. Rex v. Francis, 2 D. $ R, 484.

In State Bank v. The State, 1 Blackford, 272, the court said : "We have no need of resorting to the general doctrine or information, for a quo ivarranto on information is a criminal proceeding only in name and in form ; in its nature it is purely a civil proceeding. ' '

ttf

The proceeding by information in the nature of a quo warranto is essentially a civil proceeding, and the pleadings in it are as much subject to amendment as they are in ordinary civil actions. It is criminal only in form."

State of Florida v. Gleason, Flor., 109.

In Brison v. Lingo, 26 Mo., 496, the Supreme Court said : " The inquiry arises, is this a criminal case? For a great while it has been applied to the simple purpose of trying civil right, and regarded as a remedy to try the right to office." The court held it was a civil case.

See also State v. Kupfurle, 44 Mo., 154.

A proceeding by quo warranto is not a criminal proceeding. Ensminger v . Peo, 47 III., 384.

In Commonivealth v. Browne, 1 S. & R., 382, it was held that " an information in the nature of a quo warranto, although a criminal proceeding in form, is in substance but a civil one ; and is therefore not within the prohibition of the 10th article of the Constitution of Pennsylvania."

In State ex rel., Bashford v. Barstow, 4 Wis., 567, the Attorney General, after some proceedings, filed a formal discontinuance on the part of the State, but the court held the suit must proceed as between the relator and the defendant, and the court proceeded and rendered judgment in favor of the relator ; and he thereupon entered into and held the office for the balance of the term.

The Constitution of the United States, art. 3, sec. 2, declares that the judicial power of the United States " shall extend to all cases arising under this Constitution, the laws of the United States, and treaties made under their authority," etc.

A contest between Mr. Tilden, if he shall be counted out, aud Mr. Hayes, if he shall be counted in, touching the right to exercise the office of President, would undoubtedly be a case arising under the Constitution and laws of the United States.

The act of Congress March 3, 1815, 18 Statutes at Large, Part 3, provides as follows :

"That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority," &c.

It is well settled that where the title to an office is in dispute the amount involved, for the purpose of jurisdiction, is the salary of the office.

U. S. v. Addison, 22 How., 174.

It is true the act of Congress quoted above says nothing about writ or information, of quo ivarranto. But when an act of Congress confers upon a Circuit Court jurisdiction of a case or controversy, the power of the court to issue the proper writ, or entertain the proper proceedings to bring the case or controversy before the court, cannot be questioned.

It is well settled that in proceedings by quo ivarranto the court will ascertain the right to the office and go through all forms, fictions, certificates of canvassing boards and commissions of office to ascertain that right.

People v. Van Slyck, 4 Cow., 297.

People v. Ferguson, 8 Cow., 102.

Jeter v. State, 1 McCord, 233.

People v. Vail, 20 Wend., 12.

Bashford v. Bar stow, 4 Wis., 567.

Hill v. State, 1 Ala., (N, S. s ) 559.

As a determination of this question by this tribunal based upon the broad merits of the case would give peace to the country and set the obstructed wheels of enterprise once more in motion, so, on the other hand, a narrow and technical decision which would throw the question into a judicial controversy to continue for months would be a calamity to the country and cast a shadow upon the efficiency of free institutions.

This is undoubtedly the reason why Congress has directed this commission to inquire into the ultimate, final fact as a court of law would do on a quo warranto — reserving to itself, however, the right to adopt or reject such conclusion in the final counting of votes, which is to be done by the two Houses themselves after this commission shall have performed its functions. The duty cast upon this commission to inquire and decide — that is, report — w T hat persons were "duly appointed electors" can be satisfied in no way but by an inquiry into the ultimate fact; that is, the legality of such appointment. This commission must take judicial notice of the laws of Louisiana. [Peningion v. Gibson, 16 How., 65.) It must therefore ascertain whether any law of that State directs the manner in which electors shall be appointed; whether such State law is in accordance with the Constitution of that State, and whether in fact the electors were appointed according to such law. Without this it is impossible to say whether or not they were duly appointed.

II

Whether the election law of 1870 was repealed by the revision, or whether it remained in force after April 1, 1870, when the revision took effect, depends upon the effect to be given to several acts of the legislature enacted at the session of 1870.

On the 28th February, 1870, the following act was

" "No. 50. An act giving precedence in authority to all the other acts and joint resolutions passed by the general assembly at this session over the acts known as c The "Revision of the Statutes and of the Civil Code and Code of Practice' when there exists any conflict in the provisions of said acts and revisions.

" Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana in general assembly convened, That all the acts and joint resolutions passed during the present session of the general assembly which may be contrary to or in any manner conflict with the acts of the present session known as ' Revision of the Statutes of a general character, and of the Civil Code and Code of Practice,' shall have precedence of said revisions, and be held as the law in opposition thereto, and as repealing those acts so far as they may be in opposition or conflict." — Promulgated March 20, 1870.

On the 14th March, 1870, the revision was passed, and by its terms was to go into effect April 1, 1870.

On the 16th March, 1870, the election law was passed, to take effect from its passage.

The question is whether after the 1st April the revision repealed the election law of 1870, or whether the election law of 1870, by virtue of the act of February 28, 1870, remained in force notwithstanding the revision, and nullified the general election law contained in the revision. The general rule is that an act passed to take effect on a future day, has on that day the same effect as though it had been passed on that day.

"A law speaks from the time of its going into effect."

Rice v. Ruddiman, 10 Mich., 125.

Peo. v. Johnson, 6 Cat, 673.

Arthur v. Franklin, 16 Ohio N. S., 193.

Supervisors v. Keady, 34 PL, 293.

Price v. Hopkins, 13 Mich., 318.

Treating the revision as havingbeen passed April 1, 1870, the time when by its own terms it was to take effect, it repealed the election law of 1870, and also repealed all prior acts denying to it the full force and effect which would otherwise attach to it as a law. And this I believe to be the sound view of the subject.

But if it is competent for the Legislature to provide that 3 of two acts thereafter to be passed the first shall repeal the second, then the revision taking effect April 1st, 1870, was subordinated to the election law of March 16, 1870.

It is not very material to this case which view of this matter shall be taken by the court. It is certain that the act of 1868, re-enacted in the revision, was or it was not in force at the last election.

I shall present the case first upon the ground that the act of 1868 was in force, as I incline to that opinion.

(1.) Assuming the act of 1868 (re-enacted in the revision of 1870) as in force, it is not preteuded that the votes given for electors at the last election in that State have ever been canvassed as required by this act. It is evident that the canvass which was made, and which resulted in the exclusion of over 6,000 votes in favor of the Tilden electors, was not only unauthorized by this act, but in direct violation of its express provisions.

By this law, section 2826, it is provided that —

"Immediately after the receipt of a return from each parish, or on the fourth Monday of November if the returns should not sooner arrive, the Governor in the presence of the Secretary of State, the Attorney General, a district judge of the district in which the seat of government may be established, or any two of them, shall examine the returns, and ascertain therefrom the persons who have been duly elected electors.

"Sec. 2827. One of the returns from each parish, indorsed by the Governor, shall be placed on file and preserved among the archives of the Secretary of State.

" Sec. 2828. The names of persons elected, together with a copy of the returns from the several parishes, shall forthwith be published in the newspaper or papers in which the laws of the State may be directed to be published."

Under this law no returns whatever could be excluded. The result must be ascertained from all the returns " from each parish." No judicial power and no discretion is conferred by this act; the duty is purely mathematical. The returns from each parish are to be preserved among the archives of the Secretary of State. It will not be pretended by any one that if this law was in force the election was conducted and returned according to its provisions. If the election law of 1868, as re-enacted in the revision of April 1, 1870, was not repealed by the act of March 16, 1870, then it certainly was in force at the time of the election, unless repealed by the act of 1872. The history of this act of 1872 is well known. In the early part of 1872 the Legislature passed this bill and sent it to Governor Warmoth for his approval. He neither approved or vetoed the bill during the session of the Legislature. But after the presidential and the State elections of November, 1872, when Governor Warmouth was engaged in a contest with Judge Durrell, months after the adjournment of the Legislature which passed the bill, and after Judge Durrell in the Circuit Court of the United States had tied up the canvass of those elections, Governor Warmoth, as the only means of counteracting the usurpations of a Federal judge, took this act of 1872 from his pocket and pretended to give it his approval, and caused it to be promulgated as a law of the State.

The repealing clause contained in this act is very sweeping in terms, but was evidently intended to repeal only the general election laws of the State. An examination of these statutes will show that the Legislature always treated the election of electors as a matter distinct from the general elections of the State.

In 1868 the Legislature, on the 19th of October, passed an act entitled " An act relative to elections in the State of Louisiana," &c.,and on the 30th day of the same month passed another act entitled an act —

"Relative to presidential electors," and both were published in the session laws of that year as distinct and independent acts.

In the Revised Statutes of 1870 the general election law of the State is published under the head ''Elections," on pages 272-282; under the head of "Presidential Electors," on pages 550-553, is published the act of 1868,

Here the intention is manifest to treat the two elections as distinct, and they are regulated by different provisions. The election of State officers under the authority of the State constitution, and the election of electors under the authority of the Constitution and laws of the United States, are treated in the laws of Louisiana as distinct subjects, and, notwithstanding the repealing clause of the act of 1872 is very broad, it is evident from the whole act that it was only intended to repeal all laws relating to general elections under State authority. It is a well-established rule for the interpretation of statutes, that, for the purpose of ascertaining the intentiou of the Legislature in any particular part of the act, the whole act must be considered; and if the general intention manifested by the whole act is clear, such intention will enable the court to control the language of other parts of the act. Blanchard v. Sprague, 3 Sumner, 279.

"In doubtful cases a court should compare all the parts of a statute, and different statutes in pari materia, to ascertain the intention of the Legislature."

The Elizabeth, 1 Paine, 10.

"Words which, standing alone in an act of Congress, may properly be understood to pass a beneficial interest in land, will not be regarded as having that effect if the context shows that they were not intended to be so used." Bice v. Railroad Co., 1 Black, 358.

That the act of 1872 was intended as a regulation only of the election, for State officers, and the repeal of former laws upon that subject, is manifest from the first section of that act.

"Section 1. That all elections for State, parish, and judicial officers, members of the General Assembly, and for members of Congress, shall be held on the first Monday in November, and said election shall be styled the general elections. They shall be held in the manner and form and subject to the regulations hereinafter prescribed, and in no other."

Presidential electors are not State officers. As between the Union and the States to determine whether an officer is a Federal or State officer, we have only to determine whether the office is created by the Constitution and laws of the Union or the constitution and laws of a State. Senators are elected by the Legislatures of the States, but the office is created by the Constitution of the United States, and nobody doubts that a Senator is an officer of the United States and not of the State which elects him. The office of elector is created by the Constitution of the United States. The office is therefore a Federal office and the fact that a State may fill the office by appointment does not change the character of the office. Suppose an amendment of the Constitution to be adopted to-morrow, providing that in addition to the present number each State might appoint an additional judge of the Supreme Court of the Unk©d States, would it be pretended that a judge thus appointed was any less an officer of the United States than the other judges appointed by the President? The effect of the Constitution is simply this: it establishes an office and authorizes a State to fill it. The only power possessed by the State in regard to the electoral college for each State is the power of appointment; but in what manner the duties of the office shall be performed, when the electors shall meet, and how they shall vote, the manner and order of their proceedings, the authentication of their action, and how to make return to the General Government, whether they shall give bonds or take oaths and receive compensation, and indeed all things concerning the office except the filling of the office are subjects of Federal regulation; subjects over which the State has no control whatever.

Again, the act of 1872 contains no direction in regard to the manner of appointing electors. It does not declare, nor does any other law of the State, except that of 1868, whether the electors shall be chosen by the people, elected by the Legislature, or appointed by the Governor. The act of 1868 is a specific and complete regulation of the whole subject, and provides for the election of electors by a popular vote ; and provides that, in case of the absence of any of the electors, the other electors may supply their place by ballot ; that two electors shall be elected at large, and one from each Congressional district ; and provides how the votes given shall be canvassed and certified. The act of 1872 contains no provision upon any of these subjects, and only refers to electors for the purpose of fixing the time for the appointment, a provision wholly useless, because Congress, and not the State, must fix the time for making such appointment. All that the State can do is to direct, by its Legislature, the manner in which, and not the time at which, the appointment shall be made, when the time arrives for making it as provided by Congress.

It is not to be supposed that the Legislature, in the act of 1872, intended to strike down the only act regulating the manner for appointing Presidential electors, without making any other provision covering the subject.

Again, the act of Congress (Rev. Stats., p. 21, sec. 133) provides as follows :