Representatives in Congress are required to be chosen in August, and not in November, and that the month of August, 1871, is the time fixed by law for the election of Representatives from Tennessee in the present Congress. The legislation which bears upon the question is as follows: 1. The code of Tennessee, adopted in 1858, fixed the time for the election of Representatives in Congress "on the first Thursday in August in every second year, dating from August, 1833." (Code of 1858, p, 223.) This provision is found in chapter 2, article 3, of said code of 1858.

2. By an act approved February 28, 1868, it is provided that the election for Representatives in Congress shall be held "on the Tuesday next after the first Monday in November, 1868," and on the same day in each alternate year thereafter. (Acts of 1867–268, p. 69.)

3. An act of the legislature, approved June 16, 1870, and which is entitled "An act to regulate the elective franchise in accordance with article 4, section 1, of the constitution of the State" is relied upon as having the effect of repealing the act of 1868, which fixed the time for the election in November and of re-enacting that of 1858, which fixed it in August. If it did repeal the one and re-enact the other, the election in question was void, as having been held on the wrong day.

To determine, therefore, the force and effect of this act of 1870 is to decide the question before us. This act contains in the first section provisions defining and regulating the elective franchise. Section 2 enumerates and gives the titles of three separate acts relating to the elective franchise, which it declares repealed; but it does not include in this list the act of 1868, fixing November as the time for holding the Congressional election. Then follows the following section:

That title 6, chapter 2, articles 3, 4, 5, 6, 7, and 8 of the code of Tennessee, relating to elections by the people, be and the same are hereby re-enacted and revived, except as altered or repealed by this act.

It is admitted that the provision of the code of 1858, fixing August as the time for the Congressional election, is found in article 3 of chapter 2 of said code, referred to in the section quoted.

The language itself is broad enough, therefore, to amount to a re-enactment of everything contained in all the articles enumerated, including the provision in relation to the time of holding the election. But that such could not have been the intention of the legislature is evident from several considerations, which we will briefly state:

The title of the act declares its object to be "to regulate the elective franchise in accordance with article 4, section 1, of the constitution of the State." The provision of the constitution here referred to relates exclusively to the qualifications of electors. It is, then, clear that there is but one subject referred to in the title, and that is the regulation of the right to vote-the prescribing of the qualifications of voters. It is the opinion of the committee that the act should be construed so as to harmonize with its title, and that to ascertain the legislative intent (which is the thing to be sought) we should examine the act in connection with the title.

In this connection we quote the following provision of the constitution of Tennessee:

No bill shall become a law which embraces more than one subject; that subject to be expressed in the title. All acts which repeal, revive, or amend former laws shall recite in their caption, or otherwise, the title or substance of the law repealed, revived, or amended. (Art. 2, sec. 17, Const. of Tenn.)

We do not in this connection discuss the question whether under this provision of the constitution so much of an act as is not embraced

within the subject set forth in its title should be held void. Of that hereafter. We are now seeking to ascertain the intent of the legislators who passed this act.

If the intent was to re-enact and give the force of law to all the provisions of articles, 3, 4, 5, 6, 7, and 8 of chapter 2 of the code, then the intention must have been to violate the constitution in several important particulars. If such was the intention, then the provision we have quoted, forbidding the introduction of more than one subject into an act, must have been intentionally violated, because the articles referred to embrace several distinct matters which are not embraced within the scope of the title to this act. Again, if the intention was to revive and re-enact all the articles named, it would amount, we think, to an inten tional violation of the latter clause of the section of the constitution above quoted, which declares that "All acts which repeal, revive, or amend former laws shall recite in their caption or otherwise the title or substance of the law repealed, revived, or amended."

The section of the act of 1870 relied upon as reviving the provisions. of the code of 1858 fixing the time for holding the election, does not, either in its caption or otherwise, "state the title or substance" of those provisions of the code. The act of 1870 names the chapter, but that chapter covers some thirteen pages and embraces a variety of subjects. It names the articles as being articles 3, 4, 5, 6, 7, and 8, of said chapter, but these articles cover some ten pages, and embrace a variety of provisions coming properly under the head of "elections by the people," but not all relating to the "elective franchise." It seems to us to have been the intent of the framers of this constitutional provision to prevent the re-enactment in this way, by wholesale, of repealed and obsolete statutes.

But again, if we hold that the intention of the legislature was to revive all the provisions of the chapter and articles of the code to which we have referred, we must also hold that there was a further intentional violation of the constitution in this. The constitution under which this legislature was acting, itself fixed the time for the election of gov ernor of the State, of members of the general assembly, of judges and chancellors, and of county officers. The provisions of the code which it is claimed were revived by the act of 1870 also fixed times for the election of these same officers, and fixed them on days different from those fixed by the constitution. Therefore, if the legislature intended to revive all the provisious of the code embraced within the chapter and articles named, then they must have intended to violate the provisions of the new constitution, just referred to.

And, again, the act of 1870 expressly enumerates the statutes intended to be repealed, and does not mention the act of 1868, which fixes November as the time for holding the Congressional election. How easy and how natural to have included this act in the list of statutes repealed if the intention had been to repeal it. Is not its omission from this list a most significant fact, as bearing upon the question of intent? Would the legislature have left this act of 1868 out of the list of statutes expressly repealed, in order to reach its repeal by implication arising under a subsequent provision of doubtful construction and doubtful constitutionality? The committee think not.

It is therefore perfectly apparent that the legislature did not intend to revive in toto the provisions of the chapter and articles of the code referred to. The question, then, is, which, if any, of those provisions should be held revived? Unquestionably only such as relate to the

subject named in the caption or title of the act, viz, the regulation of "the elective franchise in accordance with article 4, section 1, of the constitution of the State." Thus construed, the committee hold that the act did not have the effect to repeal the act of 1868 and to revive that portion of the code of 1868 which relates to the time of holding of the election for members of Congress.

Your committee are not prepared to admit the correctness of the doctrine that the provisions of article 2, section 17, of the constitution of Tennessee are merely directory. While it may not be necessary to the determination of this case to pass upon this point, we deem it proper to say that we have grave doubts, to say the least, as to the validity of any provisions inserted in the body of an act not coming within the scope of the one subject set forth in the title. The language of the constitution is peculiar, and seems to be altogether prohibitory of that pernicious legislation which is the result of the power to combine in one bill various interests and objects. The language is, "no bill shall become a law," &c. This is much stronger than to say, no bill shall contain more than one subject," &c. The former declares that no bill containing more than one subject "shall become a law." The latter might not be held to go so far as this, and might with more propriety be held to be directory.

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If, however, the question as to whether by the act of 1870 the time for holding the election in question was changed from August to November was one of doubt, we should feel bound to follow the construction given to it by all the authorities of the State of Tennessee whose duty it has been to construe it and to execute it. It is admitted that the governor and all other authorities in Tennessee having anything to do with the construction and enforcement of this act of 1870, have construed it as in nowise affecting the act of 1868, and by common and universal assent the election was held at the time fixed in the latter act. It is a well-established and most salutary rule, that where the proper authorities of the State government have given a construction to their own constitution or statutes, that construction will be followed by the Federal authorities. This rule is absolutely necessary to the harmonious working of our complex governments, State and National, and your committee are not disposed to be the first to depart from it. The committee recommend the adoption of the following resolution:

Resolved, That the election for members of Congress from the State of Tennessee, held on the 8th day of November, 1870, was held on the day fixed by law, and was not void by reason of having been held on the said day.

W. T. CLARKE.—THIRD CONGRESSIONAL DISTRICT OF

TEXAS.

This case related to the certificate forwarded to the Clerk of the House of Representatives by the secretary of state of Texas. It was regarded as regular and authentic evidence of the result of the election, without prejudice to the right of any other person claiming to have been elected to contest his right to said seat.

The House adopted the report January 10, 1872. Yeas, 102; nays, 78; not voting, 58. William T. Clarke was sworn in.

Authorities referred to: U. S. Statutes, 1857, chap. 56, page 1; Statute of Texas, 1870, chap. 78, sec. 23.

December 18, 1871.-Mr. Hoar, from the Committee of Elections, submitted the following report:

The Committee of Elections, to whom was referred the certificate of the election of Hon. W. T. Clarke as a Representative from the third district of Texas, respectfully report:

The only question before the committee is whether the document, a copy of which is annexed, marked A, entitles Mr. Clarke prima facie to a seat in the House, subject to the right of any other person hereafter, who may claim to be duly entitled thereto, to contest his right upon the merits. This is a simple question of law.

Statutes United States, 1867, ch. 56, § 1, requires the Clerk of the preceding House of Representatives to make, before the meeting of Congress, a roll of those persons "whose credentials show that they were regularly elected in accordance with the laws of their States, respectively, or the laws of the United States."

The certificate of Mr. Clarke, signed by the governor of Texas, and authenticated by the great seal of the State and the signature of the secretary, declares that Mr. Clarke was duly elected. In the absence of

any express provisions of the State law, authorizing any officer to certify to the due election of members of Congress, it is presumed that, under the usages of the House, a certificate, under the great seal of a State, signed by its chief executive officer, would constitute sufficient creden tials within the meaning of the statute of 1867.

But the committee are of opinion that the document submitted is the certificate required by the laws of Texas to be transmitted to the member-elect and to the Clerk of the House, and constitutes prima facie evidence of the election of Mr. Clarke. The statute of Texas of 1870, ch. 78, is a codification of the laws of that State touching elections. The provisions material to this question are annexed, marked B.

It will be seen that the laws of Texas, under which the election for members of the Forty-second Congress was held, provide that the judges of election at each poll or voting place (section 33) shall count the ballots, make a list of the names of persons and officers voted for, the number of votes for each, the number of ballots in the box, the number of ballots rejected, and the reasons therefor. All this is to be done "immediately after the close of the polls." This statement is to be made out in triplicate, signed and sworn to, one copy sent by mail to the secretary of state, another copy sent to the governor, and a third retained by the registrar.

The twenty-first section provides that if there be any disturbance, intimidation, or corruption, which prevent or tend to prevent a free and peaceable election, the judges or registrar shall make a statement, under oath, thereof, corroborated by the oaths of three citizens, and transmit the same to the governor. Section 34 requires the secretary of state to make a table containing an alphabetical list of the counties, with columns for the names of candidates and the number of votes; and on the sixteenth day after the close of the election, in the presence of the governor and the attorney-general, to open the returns and enter on the table the number of votes given for the candidates, respectively, and then put the returns back in the envelope, and seal and file them away.

The returning officers are to compile the statements first from all places where there has been a fair, free, and peaceable registration and election. Then if there has been received any statement from any

judge or registrar, of violence, intimidation, or corruption, as above stated, they are to see whether these, if proved, would affect the result. If they would not, they are to proceed to canvass and compile the returns from such voting-place as if no such statement had been made. If they would, the returning officers are to examine further testimony, with power to send for persons and papers, and, whenever such illegalities are shown to have taken place at any voting-place so as materially to affect the result, then the said returning officers shall not canvass or compile the statement of the votes at such poll or voting-place, but shall exclude it from their returns. The secretary may also employ clerks to compile the returns for a length of time not to exceed twenty days.

The foregoing provisions are all contained in a statute entitled "An act to provide for the mode and manner of conducting elections, making returns, and for the protection and purity of the ballot-box." They do not make, in terms, any distinction between different classes of officers or purport to be limited in their application to State officers exclusively, and they are the only provisions for forwarding returns to the secretary of state or for any canvass or compilation which shall ascertain the result. But section 23 provides that

As soon as possible after the expiration of the time of taking the returns of the election for Representatives in Congress, a certificate of the returns of the election for such Representatives shall be entered on record by the secretary of state, and signed by the governor, and a copy thereof, subscribed by said officers, shall be delivered to the person so elected, and another copy transmitted to the House of Representatives of the Congress of the United States.

The opponents of Mr. Clarke claim that this section requires copies of the original returns made by the local judges and registrar from their various polling-places, to be sent to the House and to the person elected, and that the provisions of sections 33 and 34 requiring a canvass and advertisement of the result by the three highest officers of State, have no application to members of Congress. On the other hand, Mr. Clarke claims that the provisions of those sections are applicable to members of Congress, that the certificate required by section 23 to be entered on record by the secretary of state, a copy of which is to be delivered to the member elected and forwarded to the Clerk of the House, is the certificate of the results of the election after the returns are tabulated and canvassed by the returning officers, and that the certificate he produces is such advertisement, and the regular and authentic evidence both of their action and his election.

And we are clearly of opinion that he is right; for these reasons:

1. It is highly improbable that the statute of Texas, which provides so carefully for a scrutiny of the proceedings in the case of all local officers, should have made no provision for the case of members of Congress.

2. It is not to be believed that it was the purpose of the legislature to require a mass of local returns to be transmitted to the Clerk of this House, as the only evidence of the election of their members, leaving him to foot them up and to determine all questions which might arise of their regularity and legal effect in making up the roll of members.

3. Section 23 clearly shows that the certificate is a certificate of the result, as ascertained by the returning officers, the same which is spoken of at the close of section 35, as "their returns." It is to be given "as soon as possible after the expiration of the time of making the returns of the election for Representatives in Congress." The only time limited is in sections 34 and 35, which require the returns to be opened on the