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seat, there was no dissent from the proposition of Mr. Dawes, that if Mr. Golladay were sworn in without such reservation, Mr. Blakey would be foreclosed “from any further investigation of the question of a vacancy existing at that time.” Now, in the present case, not only was there no reservation of the right to contest Mr. Dibble's seat when he was sworn in, but the House, by a very decided vote, tabled a motion to refer the credentials of Mr. Dibble and the papers in Mackey vs. O'Connor to the Committee on Elections, and tabled a motion to reconsider its vote thereon. We do not mean to say, nor have we ever understood Mr. Dibble to contend, that it is beyond the power of the House to make inquiry into his right to his seat by such means as it may see fit to adopt in an investigation de noro. Such an investigation would give to the sitting member the opportunity, which he has never enjoyed, of defending his seat by pleadings of his own, and such proofs as he may be disposed to offer in his cause. It must be borne in mindt hat by the action of the House itself Mr. Dibble was placed in full possession and enjoy. ment of the office of member, on December 5, 1881. This possession was clear from any qualification, reservation, or condition ; it was as absolute as the possession of any member on the floor. Can it be said a contest was pending in the case of Mackey rs. O'Connor ? The answer is that the House had decisively given “its death-blow" to the motion to make Mr. Dibble a party to that contest before he was sworn in. It is premature to discuss and to pass judgment upon the effect of the election of November, 1880, upon the special election of June, 1881, because it is a mere speculative inquiry, until by some order of the House, which order has never yet been made, the sitting member is placed in the position of a party to a contest, either under the statute or under a special order of the House adopted for the specific case. If we look at the statute we find the following language: SEC. 105. Whenever any person intends to contest an election of any member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the otticers or board of canvassers authorized by law to determine the same, give notice, in writing, to the member whose seat he designs to contest, of his intention to contest the same, and in such notice shall specify particularly the grounds upon which he relies in the contest. Section 106 provides for an answer by the member thus served with notice. Section 107 provides for the taking of testimony, and incidentally, but without doubt, defines the term member to mean “returned member.” Now, there is nothing in the statute to limit its application to general in contradistinction to special elections. “To contest an election of any member” is broad and comprehensive; and in this category Mr. Dibble, as a “returned member,” certainly may be embraced. Mr. Dibble was certainly elected at an election regularly held according to law. The cases of Hoge (Clark & Hall, 136), Edwards (Clark & Hall, 92), and Mercer (Clark & Hall, 44), and the case of Blakey rs. Golladay settle that. The action of the House in seating Mr. Dibble recognizes the fact, and puts it beyond dispute. It is unnecessary to cite authorities to show that questions concerning the legality of an election are proper matters of contest under the statute; they have been so treated in numerous cases. And when we consider that Mr. O'Connor, the “returned member” of the November election, had a right to a seat only so long as he lived, and had no inheritable or transmissible interest to be affected after his death, it is enough to state that a contest for his seat after his death is a contest for something that had ceased to exist. The only relation that could exist between himself and any one that succeeded him was a relation of time, not a relation of privity. It cannot be said that because Mr. O'Connor was elected for a term of two years he had a right in himself and his privies for two years whether he lived or died. He only had a right for two years, provided he should live; the very fact of his death creating a vacancy shows that his right was absolutely gone at his death. And for any one else to have or claim a right the original granting power, i. e., the people, had to be invoked, and they alone had the right to bestow the remainder of the term. In law the case of a suit against a life tenant is analogous. Can any one claim that where one of two litigants of a close—the one in possession— dies, and another person enter into possession of the disputed terri. tory under a fresh grant from the sovereign, that the tenant thus enter. ing can be ousted upon the proceedings had against his predecessor, such predecessor being neither his ancestor or grantor, but simply a life tenant And shall the right of a member of this House to his seat, a right held to be a right of property, be decided on principles antago. mistic to those which govern the decisions of other rights of property! We think not. Recurring to the statute, we think it a reasonable construction of the same, when we come to the conclusion that Mr. Dibble, as the returned member of the House, was entitled to the notice required thereunder, in like maner as a member elected and returned at a general election. One thing is certain, that it was in the power of Mr. Mackey to serve such notice, and to state as his grounds the same reasons he now advances for contesting the election of Mr. Dibble, and if the evidence taken in the previous contest of Mackey rs. O'Connor were competent in the new case, he had the opportunity of submitting it on notice, as evidence in a contest against Mr. Dibble thus inaugurated, and we fail to find any statutory means by which Mr. Dibble, after his election, could, by any act of his, become a party to the case of Mackey rs. O'Connor. This being the case, and the House having seated Mr. Dibble, is there any precedent in law or in the decisions of this House in contested cases, whereby the party in possession of his seat should go out to hunt an adversary 2 Is he to be the actor in any way: We fail to find any such precedent, and can only come to the conclusion that Mr. Mackey, hav. ing neglected to avail himself of the opportunity afforded him by the terms of the statute, whereby he could have inaugurated a contest in the usual form, in the first instance either willfully or mistakenly prevented Mr. Dibble from being a party to the issues he is now trying to force upon him. Failing to find in the statute any mode whereby Mr. Dibble could be made a party to the case of Mackey rs. O'Connor, and finding in it a mode whereby Mr. Mackey might have made the issues with Mr. Dibble, on which he now invokes the judgment of the House, but did not so take issue with Mr. Dibble, we cannot come to the conclusion that the usual resolution of reference to the Committee on Elections, of contested cases, adopted December 21, 1881, operated to revive the case of Mackey rs. 40’Connor, which had received “its death blow” by the action of the House itself over two weeks previously to that time. Such resolution certainly did not make Mr. Dibble a party to the case of Mackey r*. O'Connor; and we fail to find any action of the House which at any time had that effect. It therefore seems to us, that if the case is within the statute, then Mr. Mackey has neglected to give the notice prescribed
by the statute to be given to the member whose “election” is to be contested; and, on the other hand, if the case be outside of the statute, the House has never taken any order for proceedings in the matter against Mr. Dibble, the sitting member, and without such order the committee are without jurisdiction to act concerning Mr. Dibble in the premises, having neither the statute nor any precedents of the House on which to support such claim for jurisdiction. Under that provision of the Constitution which makes the House of Representatives the judge of the election, returns, and qualifications of its members, the House may adjudicate the question of right to a seat in either of the four following cases: (1) In the case of a contest between a contestant and a returned member of the House, instituted in accordance with the provisions of title 2, chapter 8, of the Revised Statutes; (2) in the case of a protest by an elector of the district concerned; (3) in the case of a protest by any other person; and (4) on the motion of a member of the House. The proceeding in the first of these cases is, by the Revised Statutes, made a proceeding inter partes —a suit or action in which the contestant is plaintiff and the returned Representative defendant. A case adjudicated by the House on the protest of an elector, or other person, or on the motion of a Representative, is not an action inter partes. It is a proceeding under the Constitution, and not under the Statute. The action inter partes provided for by the Revised Statutes abates on the death of either party. While the power of the House to adjudi. cate any question of title involved in that action survives, the action itself abates upon the death of either party thereto. It follows that the contest of Mackey rs. O'Connor abated on the death of Mr. O'Connor. That contest was an action inter partes. It was the technical action specially provided for in the Revised Statutes. If the House shall hereafter adjudicate any of these questions, in a proceeding against Mr. Dibble, it will have the power, under the Constitution, to provide the rules for such adjudication. When the House undertakes the adjudication of the light of a member to his seat on the protest of an elector or other person, or on the motion of a Representative, it does not look to the statutes for its rules of procedure; it prescribes its own rules, in the exercise of its unquestionable constitutional power. If it finds any of the rules prescribed by law for technical contests available and useful in the case it adopts them. Such rules then have force, not because found in the statutes, but because adopted by the House. But this constitutional power of the House to prescribe the rules for such adjudications is not an absolute or undefined power to be arbitrarily exercised by the House. Like every other constitutional power of the House, it is to be exercised in subordination to those principles of justice which lie at the root of the Constitution and send their influences through all its provisions. For an adjudication made on the protest of an elector or other person, or on motion of a Representative, the House has no constitutional right to prescribe any rules which shall bind the sitting member by pleadings or avernments which he never made, by the testimony of witnesses whom he never had an opportunity to examine or cross-examine, by stipulations or admissions, or waivers which he never made, or by laches which he never incurred. The House has no right to make the title of a Representative to his seat subject to the acts or omissions, the diligence or laches, the wisdom or folly, of another man. But if it were conceivable that the contest, which is by the Revised Statutes so clearly made a proceeding inter partes, could survive one of the parties, it would, nevertheless, be certain that when the House seated Mr. Dibble on his credentials that contest was dismissed and passed from the jurisdiction of the House. From the time when Mr. Dibble took his seat, in pursuance of the resolution of the House, it was his right to that seat which was to be assailed by any contestant, or claimant, or protestant. Since that time Mr. O'Connor's right has been a question for the adjudication of the House, not because it was once involved in the contest of Mackey vs. O'Connor, but because it is now involved in the question of Mr. Dibble’s right to the seat which he occupies. When the House admitted Mr. Dibble to the seat without condition or reservation it invested him with the right which belongs to other sitting mem. bers under the Constitution and the law to receive due notice of any proposed contest, to have the opportunity to answer, to examine his own witnesses, to cross-examine those of his opponents, and to be concluded by no acts, omissions, stipulations, laches, or waivers except his OWI). It may, perhaps, be suggested that the contest of Mackey vs. O'Connor was revived and referred to the committee by the resolution which was adopted December 22, 1881, in the following words: Resolved, That all of the testimony and all other papers relating to the rights of members to hold seats on this floor in contested cases now on file with the Clerk of this House or in his possession, and all memorials, petitions, and other papers now in the possession of this House, or under its control, relating to the same subject not otherwise referred, be, and the same hereby are, referred to the Committee on Elections, and ordered to be printed. But the answer is obvious. The resolution did not refer to the committee papers which related to abated contests, but only those which related to pending contests. It did not revive dead suits. It only referred to the committee papers which related to existing suits. An order of reference places a paper before the committee for what it is worth. It imparts no new legal character or quality to the paper. It does not transform an answer in the case of Mackey rs. O'Connor into an an swer in the case of Mackey rs. Dibble. It does not transform illegal evi. dence into legal evidence. It does not transform a witness for or against Mr. O'Connor into a witness for or against Mr. Dibble. It does not transform an admission, stipulation, or waiver by Mr. O'Connor into an admission, stipulation, or waiver by Mr. Dibble. It does not transform a dead suit, to which the papers relate, into a revived and pending action. The first and only notice of contest of his seat ever served on the sitting member, Mr. Dibble, by Mr. Mackey, was not served until January 4, 1882. Thereupon Mr. Dibble filed with the committee a protest against the committee's proceeding to consider and act upon the case of Mackey vs. O'Connor, because it was evident from the notice served by Mr. Mackey that it was the intention of the contestant to assail his right to his seat by means of a case to which he was not a party. But a majority of the committee decided to proceed with the case, and overruled the protest of the sitting member. For the reasons already set forth, we are of the opinion that the protest should have been sustained. We cannot concur in establishing as a precedent that a member of this House, duly admitted to his seat, can be rightfully removed there. from without any opportunity of defending his title thereto, either by pleading his defense, or by introducing evidence in his behalf. Nor can we subscribe to the opinion that the Committee on Elections, under its ordinary powers, can summon a member of this House to defend a cause in which he is not the contestee, in which he is in no way mained as a party, and in which the House has not only not required him to appear,
but has by its action declined to make him a party. If such a precedent is to be established, it will be giving to the Committee on Elections jurisdiction to act outside of the statute, and to inquire as to the seat : *}. member on the floor at its discretion, and without the order of the House.
A few words as to the claim of the contestant concerning the prima facie case.
On pp. 10, 11 of the printed Record, we find that the contestant himself introduced the following certificate:
STATE of South CAROLINA, Office of Secretary of State : I, R. M. Sims, secretary of state, do hereby certify that the following is a correct statement of the total number of votes cast in the several counties comprising the second Congressional district of South Carolina, and also of the votes cast for a member of Congress from said district at the general election held November 2d, 1880, as certified to by the State board of canvassers:
M. P. E. W. M. Total No. O'Connor. Mackey.
Witness my hand and the seal of State, at Columbia, this 20th day of January, A. D. 1S-1, and in the 105th year of American Independence. [SEAL. J R. M. SIMS, Sec. State.
In his brief (p. 4) he claims that certain boxes were not counted by the county canvassers, and also claims the vote thereat to have been as below copied from said brief. Without conceding the sufficiency of the evidence of the said votes, for reasons hereinbefore stated, we give his figures as claimed in his brief, page 4, as follows:
Applying these figures to the vote canvassed, we have the following summary, viz: