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The Committee on Privileges and Elections, to whom was referred the memorial of Francis W. Sykes, claiming to be Senator-elect from the State of Alabama, together with accompanying documents, respectfully submit the following report :

Mr. Sykes claims the seat now held by Hon. George E. Spencer, as Senator from the State of Alabama; and his claim is based upon the assertion that the body claiming to be the legislature of the State of Alabama which elected the said Spencer was not the rightful legislature of that State, but that another body of men was such legislature; and that the latter body, on the 10th day of December, A. D., 1872, duly elected the said Sykes to be the Senator of the United States from that State for the term of six years, commencing on the 4th day of March, A. D. 1873.

It is a fact that for some time after the day fixed by law for the organization of the legislature of that State, in 1872, there were two bodies, each claiming to be the legislature of that State-one known as the state-house legislature, which pretended to elect Mr. Sykes, and the other known as the court-house legislature, which pretended to elect Mr. Spencer; and the question is, which of these two bodies ought to be considered the rightful legislature at that time? On the 3d day of De cember, 1872, the court-house legislature, so-called, pretended to elect Mr. Spencer. The governor of the State certified that Mr. Spencer had been duly elected on that day by the legislature of the State; and the Senate, upon that certificate, seated Mr. Spencer as a Senator for the term in question. The first question is, therefore, whether the body of en which pretended to elect Mr. Spencer can properly be regarded as tae legislature of the State at the time of such pretended election. If so. Mr. Spencer's election was valid, and, of course, if that be so, Mr. Sykes can have no right to the same seat during the same term.

The general election in that State was held on the 5th day of Novemvember, 1872. The time fixed for the meeting of the legislature thereafter was on the 18th of November, 1872. The constitution of the State provides, section 6, article 4: "The house of representatives, when as sembled, shall choose a speaker and its other officers, and the senate shall choose a president, in the absence of the lieutenant-governor, and its other officers; each house shall judge of the qualifications, elections, and returns of its own members, but a contested election shall be determined in such manner as shall be directed by law. The president of

the senate and the speaker of the house of representatives shall remain in office until their successors are elected and qualified."

By article 8 of the constitution of Alabama, the house of representatives is declared to consist of one hundred members, apportioned among, and elected from, the counties of the State as directed in said article. The senate consists of thirty-three members, elected by the voters from the senatorial districts, as directed in said article, and these two bodies constitute the general assembly of the State, and in them, by section 1, article 1, of the constitution, is vested the legislative power of the State. By section 38, of the revised code of Alabama, which was re-enacted and continued in force by an act approved July 29, 1868, the general assembly is required to convene in the city of Montgomery.

It is provided by the act to regulate elections in Alabama as fol

lows:

SEC. 33. Be it further enacted, That one of the inspectors must number each ballot with the same number as the name of the voter on the poll-list, and the ballot must then, without being opened or examined, be deposited in the proper ballot-box.

SEC. 34. Be it further enacted, That there shall be no challenging of electors appearing to vote at any election hereafter held in this State, and any registered voter appearing to vote at any election in this State shall be allowed to do so without question, challenge, or objection by any person; and any person who questions, challenges, or objects, or who unlawfully hinders or delays any person offering to vote, shall be guilty of a misdemeanor, and, on conviction, shall be fined five hundred dollars, and, on failure to pay the same, shall be imprisoned in the county jail for six months.

SLC. 35. Be it further enacted, That it shall be the duty of the inspectors of all elections in the election-precincts, immediately on the closing of the polls, to count out the votes that have been polled, and, after so doing, to promptly certify the poll-list, seal up the boxes containing the ballots and poll-list, and deliver them to the returning officer, who shall deliver such sealed boxes to the judge of probate within fortyeight hours after they may be delivered to him, and take a receipt from the judge of probate for such sealed ballot-boxes.

SEC. 36, Be it further enacted, That judges of probate, sheriffs, and clerks of the circuit court, or any two of them of the several counties, are hereby constituted a board of supervisors of elections in and for their respective counties; and it shall be the duty of said board of supervisors to open, compare, and count the ballots cast at all elections.

SEC. 37. Be it further enacted, That it shall be the duty of the board of supervisors of elections, upon good and sufficient evidence that fraud has been perpetrated, or unlawful or wrongful means resorted to to prevent electors from freely and fearlessly casting their baliots, to reject such illegal or fraudulent votes cast at any of such polling-places, which rejection, so made as aforesaid, shall be final, unless appeal is taken within ten days to the probate court; and in case of a tie for any county officer, the board of supervisors shall decide.

SEC. 38. Be it further enacted, That it shall be the duty of the board of supervisors, within five days from the date of receiving the sealed boxes and certificates of the number of votes cast at each polling-place from the inspectors, to make certificates, on blanks furnished by the secretary of state, of the exact number of votes cast in their county for each person, stating the office such person is voted for, and forward them, excepting for governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-general, to the secretary of state, who shall, after such returns have been duly examined by the secretary of state, be filed as other public papers required to be kept in his office, and shall be subject to the inspection of any elector of this State. SEC. 39. Be it further enacted, That the board of supervisors shall forward a certified return of election for governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-general, to the presiding officer of the senate, at least thirty days before the time fixed for the meeting of the next general assembly.

SEC. 40. Be it further enacted, That it shall be the duty of the presiding officer of the senate, within five days after the assembling of the general assembly, in the presence of a majority of the members of the general assembly, to open the returns and proclaim the result of such election, after which they shall be filed in the office of secretary of state, as required by section thirty-seven of this act.

SEC. 41. Be it further enacted, That it shall be the duty of the secretary of state to furnish, from time to time, the board of county supervisors with all necessary blanks upon which to make election returns.

SEC. 42. Be it further enacted, That it shall be the duty of the secretary of state to forward certificates of election to such persons as may be ascertained to be elected to

any office in this State, addressed to the board of supervisors, at the court-house of the county in which such person returned as elected may reside, within ten days after receiving such returns of election from the supervising board of the county, and it shall be the duty of said board of supervisors to forward said election certificates to the persons entitled thereto.

Section 7 of article 4 of the constitution provides as follows:

A majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members, in such manner and under such penalties as each house may provide.

On the 18th day of November, 1872, the day fixed by law for the assembling of the legislature, eighteen persons, holding the required certificates of election as senators, issued to them by the secretary of state, appeared in the senate-chamber in the capitol, at Montgomery, and at 12 o'clock noon were called to order by the holding-over lieutenant governor, Moren. They exhibited their certificates of election, issued to them by the secretary of state, enrolled their names as senators, took the oath of office in due form, and proceeded to the election of officers pro tempore, viz, secretary, assistant secretary, and other officers. On the next day another senator presented his certificate, enrolled himself, and took the oath of office, in pursuance of section 48 of the revised code of Alabama. All of said senators took the oath prescribed by article 15 of the constitution before the Hon. J. Q. Smith, one of the circuit judges of the State of Alabama. On the next day the senate, so constituted, proceeded to elect its permanent officers, all its proceedings being under the presidency of the Hon. E. H. Moren, lieutenant-governor of the State. Said proceedings were had by a majority of the whole number required by the constitution to constitute a senate.

On the 18th day of November, 1872, at the hour of 12 o'clock noon, the Hon. John P. Hubbard, speaker of the previous house of representatives, took his seat at the speaker's desk in the hall of the house of representatives, in the capitol, in Montgomery, and called the house to order. Less than one-half of the hundred persons who constitute a full house appeared in their places. These persons exhibited certificates of election to the house of representatives, issued to them by the secretary of state, as required by the act before quoted, enrolled themselves as members of the house, and adjourned until the next day.

Pursuant to adjournment, the house met the next day in the same hall, but still less than one-half of the whole number of members appeared, though some additional members appeared and presented their certificates of election, issued to them by the secretary of state, and enrolled themselves as members of the house. An adjournment was then had to the next day.

On Wednesday, the 20th of November, 1872, the house was again called to order, when fifty-three members appeared. Those who had not been previously enrolled presented their certificates of election, issued to them by the secretary of state, and were enrolled. All of said persons 80 appearing and presenting their certificates of election, took the oath of office required by the constitution, the same oath being administered to them as was administered to the members of the senate by the Hon. J. Q. Smith. The house of representatives, thus assembled, then proceeded to the election of a speaker, and Hon. Lewis M. Stone, holding a certificate of election, issued to him by the secretary of state, as a member of said house from the county of Pickens, was chosen speaker of said house of representatives. All of these proceedings of said house were taken by it under the presidency of Hon. John P. Hubbard, the speaker of the previous house of representatives, who, until the election

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of his successor, occupied the chair. Mr. Hubbard, upon the election of the new speaker, retired, and Mr. Stone assumed the duties of speaker of the house. The house then proceeded to the election of subordinate officers, and so fully organized itself, as the senate had previously, under the authority of article 4, section 6, of the constitution of Alabama.

These two bodies of men constituted what is known as the Statehouse legislature, which pretended to elect Mr. Sykes as Senator. This legislature was recognized by the Hon. Robert B. Lindsay, who, under the constitution, remained governor of the State until the canvass of votes subsequently made by the state-house legislature, when it was ascertained and declared by them that Hon. David P. Lewis had been elected governor; and thereupon the said Lewis took the oath of office, and entered upon the discharge of its duties.

On the same 18th day of November, two other bodies of men assembled at the court-house, one claiming to be the senate and the other the house of representatives-the legislature of said State. After Governor Lewis was inaugurated, he recognized the court-house legislature as the proper and legal legislature of the State.

The contest between these two legislatures depends upon this; In the state-house legislature were eight or nine members who had received regular certificates of election, but who are conceded not to have been elected. There were of this class a sufficient number, together with unquestioned members, to make a quorum in both houses of the state-house legislature. In the court house legislature, persons claiming the seats of this class of members of the state-house legislature, assembled with others who were undoubted members-elect to the senate and house of representatives, and thereby constituted in numbers a quorum of the two houses at the court-house. And the question is, whether at the time the election of Spencer took place by the courthouse legislature, that legislature composed of a quorum of the persons actually elected, should be regarded as the legislature of the State; or whether the state-house legislature, a quorum in both houses being made by this class of persons who in fact were not elected, but had the regular certificates of election, should be regarded as the legal legis lature? And this, again, depends upon another question: whether, for the time being, and until some decision by the two houses could be arrived at, the eight or nine persons holding certificates, without the election, or the eight or nine persons elected, but having no certificates, are to be considered as entitled to act, and form part of the legislature of the State.

It is provided by the law of the State, passed in pursuance of sec. 6, art. 4, of the Constitution, among other things, as follows:

SEC. 45. That the election of persons declared elected to any office, whether State, county, Representatives in Congress, or to any office which is filled by a vote of the people, may be contested by any qualified elector of this State, for any one or more of the following causes: First. Malconduct, fraud, or corruption on the part of any inspector, clerk, returning-officer, or board of supervisors. Second. When the persons whose election to such office is contested was not eligible thereto at the time of such election. Third. On account of illegal votes. Fourth. Any intimidation, threats to discharge from employment, offer to bribe or bribery, violence, abuse, or any other misconduct calculated to prevent a fair, free, and full exercise of the elective franchise. But no person can contest the election of any person to any office on account of race, color, or previous condition.

SEC. 46. That no testimony must be received of any illegal votes, or other grounds of contest, unless the party contesting has given to the adverse party notice in writing of the cause or causes which he expects to name on the trial, which notice must be served personally, at least ten days before the trial.

SEC. 47. That whenever any elector chooses to contest any election to any office

embraced in this act, he must make a statement in writing setting forth specifically, first, the names of the party contesting, and that he was a qualified voter at the time the election was held; second, the office which said election was held to fill, and the time of holding the same; third, the particular ground or grounds of such contest; which statement must be verified by the oath of the contesting party, or some one for such party, to the effect that he believes the same to be true.

SEC. 48. That it shall be the duty of the probate judge to deliver to either party, on his application, copies of the poll-lists on being paid his legal fees therefor, and on the trial of the contest the judge of probate shall be required by a subpœna duces tecum to produce the original poll-lists and ballots, filed in his office for enumeration, which shall be received as conclusive evidence of the fact that the person named in the poll-lists voted, and for whom he voted.

SEC. 51. That any elector contesting the election of any senator or representative to the general assembly, he must first give security for the costs of such contest, which must be acknowledged before and approved by the clerk of the circuit court of any county of the senatorial district, if such contest be for the election of a senator; or if for the election of a representative, by the clerk of the circuit court of the county in which such election was held.

SEC. 52. That the contesting party must next give notice to the person whose election is contested, by having served on him, or left at his usual place of residence, by the sheriff or some constable, a copy of the grounds of contestation and affidavit, as required by the provision of section 45 of this act.

SEC. 53. That the security for costs must be given, and the person whose election is contested notified in the mode prescribed in the preceding section, within twenty days after he is declared elected.

SEC. 54. That the original statement of the grounds of contest and affidavit must, after such service, be returned to the office of the clerk of the circuit court in which security for the costs has been given, with the return of the officer indorsed, which is presumptive evidence of the service.

SEC. 61. That testimony taken in contests of election under this act must be certified, indorsed, and sealed up, as is required in taking depositions at suits at law. And if the contest is of the election of a senator or member of the house of representatives of the general assemby, the depositions must be directed to the presiding officer of that branch of the general assembly before which such contest is to be tried, at the seat of government, and deposited in the nearest post-office.

SEC. 62. That on the determination of such contest, the secretary of the senate or clerk of the house, as the case may be, must tax the costs due to the commissioner, witnesses, the sheriff and other officers, for serving notices and subpoenas as for similar service in courts of law, and certify the amount of each separate item, the name of the person entitled thereto, and the result of such contest, to the clerk of the circuit court, in which security for costs is required to be given by the provisions of this act. And the clerk of such court must thereupon issue execution in favor of the successful party for the amount of such costs, specifying the items, the amount of each, and the persons entitled thereto, in the bill of costs, which execution must be made returnable to the term of the circuit court of such county next after its issue, and may be issued as often as may be necessary, and must, when collected, be paid by the officer collecting on demand to the parties entitled thereto.

It is not pretended that the persons who were elected, but had not received certificates of election, took the steps required by this statute to contest the seats of the persons who held the certifiates, but had not been elected. It is claimed, and with great force, that, until a contest, in the manner provided by law, the members who had received the certificates of election, although those certificates had been erroneously delivered and they were not in fact elected, were entitled to sit as members of the legislature. It is undoubtedly true that had all the persons claiming to be members of the legislature met in the state-house, and the two houses had proceeded there to organize, the persons holding the certificate, without the election, would have been entitled to their seats, until the persons who had been elected but had received no certificates, should make contests for their seats and their claim should be determined by the houses themselves.

The matter, then, comes to this: The state-house legislature was the legislature in form, and the court-house legislature was the legislature

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