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.

Applying these provisions of the constitution and laws of Alabama to the respective organizations, known as the capitol and the court-house. legislatures, we are not left in doubt as to which of the two bodies was the lawful general assembly.

The undersigned have no hesitation in declaring it as their opinion, that the senate and house of representatives which met at the capitol and elected Mr. Sykes a Senator from the State of Alabama, were organized in strict compliance with the provisions of the constitution and laws of the State, and thus organized, constituted the general assembly, and were vested exclusively with legislative power. To sustain the opinion, we need only to refer to facts which were admitted before the committee or shown by record evidence to be true.

、

In pursuance of the act of the general assembly of Alabama, approved October 8, 1868, herein before referred to, an election for governor, lieutenant-governor, secretary of state, treasurer, attorney-general, and other State officers, and also for senators and representatives in the general assembly was held on the first Tuesday after the first Monday in November, 1872, in all the counties in the State. The returns of said election, certified as by law required, were made by the boards of supervisors of election to the secretary of state, and were by him filed in his office. Certificates of election were then issued by the secretary of state to the persons shown by said returns to have been elected to the general assembly, namely, to thirty-three senators and one hundred representatives. The duty of the secretary of state in this regard is prescribed by the 42d section of the said act of October 8, 1868, as follows: 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 offices 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.

It is not denied that the election had been held in strict compliance with the provisions of law, or that the persons to whom certificates of election were issued had been voted for at said election for the offices to which they were respectively certified to have been elected. Nor will it be denied that the board of supervisors of elections in the several counties of the State had made returns as required by section 38 of the act aforesaid to the secretary of state, showing that the persons to whom certificates of election were subsequently issued had been elected to the State senate and house of representatives.

Over these returns the secretary of state had no control, other than their custody. He was required to receive them and file them in his office, and within ten days to issue certificates to the persons shown thereby to have been elected. His duty was purely ministerial, and enforced by penalties prescribed by law.

The suggestion has been made that the secretary of state, in issuing and causing to be delivered, certificates of election to the members of the capitol legislature from Barber County, acted in bad faith, but no evidence was offered to sustain such suggestion, and, in fact, the imputation was not pressed in argument before the committee.

In the absence of any proof to the contrary, public officers must be presumed to act in good faith in the performance of official duty, and the undersigned know of no reason for denying to this officer the vindication arising from such presumption. He sought the advice of eminent counsel of both political bodies in reference to his duty in the matter, and acted in accordance with their written instructions in issu ing the certificates referred to.

The constitution of Alabama provides, article 4, section 21, as follows: "The general assembly shall meet annually on such day as may be by law prescribed, and shall not remain in session longer than thirty days, except by vote of two-thirds of each house."

The act of the general assembly of the State hereinbefore referred to, approved December 31, 1868, fixes the time for the annual meeting of the general assembly on the third Monday of November in each year.

Before proceeding to recite the facts connected with the organization of the two houses of the capitol legislature, it may be proper to refer to the following provisions of the constitution of Alabama, showing, among other things, the part to be taken by the lieutenant-governor and the speaker of the last house of representatives in the organization of the two houses of the general assembly of the State, and also that a majority of each house shall constitute a quorum to do business, and that each house "shall judge of the qualification, election, and returns of its members."

Article 4, sections 6 and 7, are as follows:

§ 6. The house of representatives, when assembled, shall choose a speaker, and its other officers; and the senate shall choose a president, in the absence of the lientenant-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 speaker of the house of representatives shall remain in office until their successors are elected and qualified.

§ 7. 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.

Article 5, section 16, of the constitution also provides:

§ 16. The lieutenant-governor shall be president of the senate, but shall vote only when the senate is equally divided; and in case of his absence or impeachment, or when he shall exercise the office of governor, the senate shall choose a president pro tempore.

Bearing in mind these provisions of the constitution and laws of the State in reference to the meeting and organization of the two houses of the general assembly, let us inquire whether the senate and house of representatives, known as the capitol legislature, met and organized in conformity therewith.

The journals of the two houses of the capitol legislature, published by authority, show the following facts in common with the organization

of the two houses. These facts were not disputed in the argument before the committee.

On the 18th day of November, 1872, being the third Monday of said. mouth, the time prescribed by law for the aunual meeting of the general assembly, eighteen persons, holding certificates of their election as senators from the secretary of state, appeared in the senate-chamber in the capitol at Montgomery, and at the hour of 12 o'clock of the day were called to order by Lieutenant-Governor Moren, who was present in conformity with the requirement of the constitution for the purpose of organizing the senate and presiding over its deliberations. The eighteen members present, constituting a quorum of the whole number of senators, exhibited the certificates of their election issued by the secretary of state, enrolled their names, and took the oaths of office administered in due form, and proceeded to elect officers, namely, sec-. retary, assistant secretary, and other officers. On the following day another senator appeared in the senate-chamber, was qualified, and took his seat in the senate. The oaths of office prescribed by the constitution of Alabama were taken by these nineteen senators before the Hon. J. Q. Smith, one of the judges of the circuit court of the State, and all the proceedings were conducted under the presidency of the lieutenant-governor, who is made the presiding officer of the senate by the constitution. These are the facts connected with the meeting and organization of the senate; let us now inquire into the organization of the house of representatives.

It appears from the journal of the proceedings, and is not disputed, that on the 18th day of November, 1872, being the third Monday of said month, the day fixed by law for the meeting of the legislature, fortyfive persons, holding the certificates of their election as members of the house of representatives, convened in the hall of the house in the capitol at the city of Montgomery, and at the hour of 12 o'clock on that day the house was called to order by John P. Hubbard, speaker of the last house of representatives. A temporary clerk and doorkeeper were appointed, and a call of the house made, when forty-five persons enrolled their names, and, having been duly sworn, took their seats as members of the house. The number present being less than a quorum, an adjournment took place until 12 o'clock the next day, when the house again met. The speaker being in the chair, five additional members having certificates of election appeared, enrolled their names, were duly sworn, and took their seats as members of the house. The whole number of members then present being fifty, one less than a quorum, the house adjourned until 11 o'clock the following day. Pursuant to adjournment, the house again met on the 20th November, when three other members having certificates as aforesaid appeared and qualified by taking the oaths prescribed by the constitution, and took their seats as members of the body.

Fifty-three members of the house were present on that day, and, being a quorum of the whole number of representatives, proceeded to the election of a speaker and other officers.

Mr. Stone, a member from Pickens, received fifty-one votes for speaker, and was declared duly and constitutionally elected speaker of the house of representatives by the presiding officer. Mr. Stone then qualified as speaker and entered upon the discharge of the duties of the office. Other officers of the house were elected on the same day, some of them receiving as many as fifty-three votes, and the house on the said 20th day of November thus became fully organized.

After the organization of the house, to wit, on the 25th of November, another member appeared and also qualified and took his seat.

All the proceedings in the organization of the two houses appear to have been orderly, regular, and in strict conformity with the requirements of the constitution and laws of the State. Both houses assembled on the day prescribed by law for the meeting of the general assembly in their respective chambers in the State capitol, set apart and appropriated by the State of Alabama for the use of the respective houses of the general assembly.

The senate was presided over by the lieutenant-governor, and the house of representatives by the speaker of the last house, during the whole time of the organization of the respective bodies, and a quorum of members holding certificates of election issued by the secretary of state as required by law were present in each house, and duly qualified, and participated in such organization and in the further proceedings of the two bodies.

Both houses of the capitol legislature, having organized, notified the governor that they were ready to receive any communication he might have to make to the general assembly. The constitution of Alabama, article 5, section 7, makes it the duty of the governor to "communicate at every session, by message to the general assembly, the condition of the State, and recommend such measures as he shall deem expedient." In performance of this duty, Robert B. Lindsay, then governor of the State, on the 22d day of November, 1872, sent his annual message, in writing, to the capitol legislature, a copy of which was delivered to each house.

This action of the governor, in the performance of a duty imposed by the constitution, was an unequivocal recognition by the executive department of the State of the capitol legislature as the lawful general assembly of Alabama, and is entitled to weight in the consideration of the question referred to the committee.

After the organization of the two houses of the capitol legislature, further proceedings were had by those houses, to which it may be proper here to advert.

The constitution of the State provides, in article 5, sections 2 and 3, as follows:

§ 2. The governor, lieutenant-governor, secretary of state, treasurer, and attorneygeneral shall hold their offices for the term of two years, and the auditor for the term of four years.

§3. The returns of every election for the officers named in the preceding section shall be sealed up and transmitted to the seat of government, by the returning-officers, directed to the presiding officer of the senate, who, during the first week of the session, shall open and publish the same in the presence of a majority of the members of the general assembly; the person having the highest number of votes shall be declared duly elected, but if two or more shall be highest and equal in votes for the same office, one of them shall be chosen by the joint vote of both houses. Contested elections for executive officers shall be determined by both houses of the general assembly, in such manner as shall be prescribed by law.

For the purpose of complying with these provisions of the constitu tion, the two houses of the capitol legislature, on the 22d day of November, 1872, under a resolution previously passed, met in the hall of the house of representatives to witness the opening and counting of the returns of the election of the officers named in section 2 above cited. Lieutenant-Governor Moren, the then lieutenant-governor of the State and the presiding officer of the senate, to whom said returns had been directed by the returning-officers, in the presence of a majority of the members of the two houses proceeded to open and count said returns; and on the fol

lowing day, the opening and counting thereof having been completed, the lieutenant-governor, as presiding officer of the senate, published the result of the election as shown by the count of the returns; and thereupon the Hon. David P. Lewis was declared elected governor and Alexander McKinstry lieutenant-governor of the State, who were duly noti fied thereof, and afterward took the oaths prescribed, and entered upon the discharge of the duties of their respective offices. The election of the other State officers was also duly declared, and said officers afterward entered upon the discharge of the duties of their several offices. These proceedings of the two houses of the capitol legislature were had in fulfillment of duties imposed by the constitution of Alabama on the general assembly of the State-duties essential to the regular and orderly transmission of the executive offices from the possession of incumbents whose terms have expired to their legally-elected successors in office. This is one of the most important functions devolved upon the legislature, and its honest performance secures the existence of legitimate executive government in the State.

No suggestion has been made from any quarter that in counting the returns and declaring the election of the governor, lieutenant-governor, and other State officers, the capitol legislature exceeded its authority or did not act fairly and impartially.

The said legislature during its existence enacted at least one statute, which is still a law of the State, and the validity of which has never been called in question, and, at the time and in the manner prescribed by the act of Congress, proceeded to elect a Senator from the State of Alabama to the Congress of the United States, aud on the 10th day of December, 1872, Francis W. Sykes, as herein before stated, was elected such Senator, in conformity with the provisions of the act of Congress aforesaid relating to the election of Senators.

In the opinion of the undersigned, no element was wanting essential to the validity of the election of the contestant, Mr. Sykes, or the legal existence of the legislature that elected him; they therefore declare it as their judgment, based upon a thorough and careful investigation of every question of law or fact that could arise in the case, that Francis W. Sykes, on the said 10th day of December, 1872, was legally elected a Senator from the State of Alabama for the constitutional term commencing on the 4th day of March, 1873, and is entitled to the seat now held by the Hon. George E. Spencer.

The lawfulness of the capitol legislature cannot be denied, or the validity of its acts questioned, because a minority of the persons holding certificates of election from the secretary of state, and entitled to seats therein, chose, factiously or otherwise, to absent themselves, and to assemble at a different place.

The senate chamber and the hall of the house of representatives in the capitol, erected at the public expense, and dedicated to the use of the senate and house, and used exclusively by the two houses respectively during the sessions of preceding legislatures, were the proper, usual, and fitting places for the assembling of the two houses of the general assembly. No justification or excuse can be found for the action of the persons entitled to seats therein as members, in absenting themselves from the hall dedicated to the use of the bodies in which they were entitled to be seated. No violence, threats, or intimidation is alleged to have prevented them from so doing.

The lieutenant governor was present at the senate-chamber, and the speaker of the last house of representatives was in the hall of the house on the day prescribed by law for the annual meeting of the general