in fact. While these two pretended legislatures were in existence, each claiming to possess the legislative power of the State, Spencer was elected to the Senate by the court-house legislature, and Sykes was elected by the state house legislature. Spencer was first elected, and on the day of his election the court-house legislature was recognized by the governor as the legal legislature of the State. Therefore, in determining as to the right of Spencer or Sykes to this seat, the Senate is compelled to choose between the body in fact elected, organized, acting, and recognized by the executive department as the legislature, and another body, organized in form, but without the election and without a recognition on the part of the executive of the State at the time they pretended to elect Sykes. When we consider that all the forms prescribed by law for canvassing and certifying an election, and for the organization of the two houses, are designed to secure to the persons actually elected the right to act in the offices to which in fact they have been elected, it would be sacrificing the end to the means were the Senate to adhere to the mere form, and thus defeat the end. which the forms were intended to secure.

The persons in the two bodies claiming to be the senate and house of representatives who voted for Spencer constituted a quorum of both houses of the members actually elected; the persons in the state-house legislature who voted for Sykes did not constitute a quorum of the two houses duly elected, but a quorum of persons certified to have been elected to the two houses. Were the Senate to hold Sykes's election to be valid, it would follow that erroneous certificates, delivered to men conceded not to be elected, had enabled persons who in fact ought not to vote for a Senator to elect a Senator to misrepresent the State for six years. On the other hand, if we treat the court-house legislature as the legal legislature of the State, it is conceded that we give effect to the will of the people as evidenced by the election. So that, to state the proposition in other words, we are called upon to choose between the form and the substance, the fiction and the fact; and, considering the importance of the election of a Senator, in the opinion of your committee the Senate would not be justified in overriding the will of the people, as expressed at the ballot-box, out of deference to certificates Issued erroneously to persons who were not elected.

In the opinion of your committee it is not competent for the Senate to inquire as to the right of individual members to sit in a legislature which is conceded to have a quorum in both houses of legally elected members. But, undoubtedly, the Senate must always inquire whether the body which pretended to elect a Senator was the legislature of the State or not; because a Senator can only be elected by the legislature of a State. In this case, Spencer having been seated by the Senate, and being prima-facie entitled to hold the seat, the Senate cannot oust him without going into an inquiry in regard to the right of the individual persons who claim to constitute the quorum in these respective bodies at the court-house and at the state-house. We cannot oust Spencer from his seat without inquiring and determining that the eight or nine individuals who were elected were not entitled to sit in the legislature of the State, because they lacked the certificates. But if the Senate can inquire into this question at all, it must certainly inquire for the fact rather than the evidence of the fact. It cannot be maintained that when the Senate has been compelled to enter upon such an examination it is estopped by mere prima facie evidence of the fact, and the certificate is conceded to be nothing more than prima-facie evidence. But the Senate must go back of that to the fact itself, and determine

whether the persons claiming to hold seats were in fact elected. When we do this we come to the conceded fact that these persons, lacking the certificate, had in fact been elected, and that the persons who claimed to be the quorum of the two houses were in fact the persons who, in virtue of the election, were entitled to constitute the quorum of both houses. So that, in any view of the matter which your committee can take, we are of opinion that Mr. Sykes makes no case entitling him to the seat now occupied by Mr. Spencer, and your committee ask to be discharged from the further consideration of the memorial of Mr. Sykes.

VIEWS OF THE MINORITY.

In the case presented by the memorial of Francis W. Sykes, contesting the election of Hon. George E. Spencer as a Senator from the State of Alabama, the undersigned respectfully submit the following minority report:

By a law of the State of Alabama, the third Monday in November in each year is fixed as the day for the annual meeting of the general assembly of said State, and on the 18th day of November, A. D. 1872, being the third Monday of said month, two separate bodies of men, each claiming to be the legislature of Alabama, assembled at different places in the city of Montgomery and proceeded to organize as such legislature.

One of these bodies, which met in the capitol, or state-house, in said city, on the 10th day of December, 1872, elected the Hon. Francis W. Sykes a Senator in Congress from the said State for the constitutional term commencing on the 4th day of March, 1873; and on the 3d day of the same month the other body, which met at the United States courtrooms, also claiming to be the legislature of the State, elected the Hon. George E. Spencer a Senator in Congress from said State for the said term.

The two bodies subsequently became merged into one general assembly, under an arrangement proposed by the Attorney-General of the United States. The organization of the fusion legislature took place after the election of both Mr. Sykes and Mr. Spencer, and the right of neither the one nor the other depends upon the action of that legislature or anything connected with its history.

Whatever claim either of the persons named may have to a seat in the Senate as a Senator from the State of Alabama rests entirely upon the question whether the body that elected him at the time of such election was in fact the legislature of the State, and not upon anything that took place in the legislative history of the State subsequent to the time of his election. It is admitted that there could be but one lawful general assembly in Alabama, and in order to determine whether Mr. Sykes or Mr. Spencer is entitled to a seat in the Senate, it is necessary to decide which of the two bodies, if either, claiming to have been the general assembly of the State, was, in fact, the legal legislature, and competent to elect a Senator. If either of the bodies, known as the capitol legislature and the court-house legislature, assembled in accordance with the provisions of the constitution and laws of Alabama, it cannot be doubted that such body so assembled in conformity with law was vested exclusively with the legislative power of the State, and was alone competent to elect a Senator to represent the State in Congress. On the other hand, it cannot be maintained, if either of said bodies assembled in violation of law or without authority of law, that such body so meeting, by whatever name it chose to style itself, was clothed with any legislative authority, or had any rightful claim to be regarded, for any purpose, as the general assembly.

These propositions are self-evident, and cannot be questioned or denied. They are too clear to admit of argument, or to need illustration

or enforcement. As isolated truths, unconnected with other questions, they would receive the ready assent of not only every member of the Senate, but of every man in the country at all familiar with the constitution and laws of Alabama. The undersigned, therefore, deem it proper to refer to such provisions of the constitution and laws of the State of Alabama as bear upon the election of members of the senate and house of representatives-and their organization as legislative bodies-composing the general assembly of the State. The following are some of the provisions of the constitution and laws of said State. Article 5, sections 2, 3, and 16 of the Constitution:

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

SEC. 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.

SEC. 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 be shall exercise the office of governor, the senate shall choose a president pro tempore.

By section 6, article 4, of the constitution of Alabama, the president of the senate and the speaker of the house of representatives remain in office until their successors are elected and qualified, as follows:

SEC. 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 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 therein, by section 1, of article 4, of the constitution, is vested the legislative power of the State, as follows:

SEC. 1. The legislative power of this State shall be vested in a general assembly, which shall consist of a senate and house of representatives.

By act of the general assembly of Alabama, approved 31st December, 1868, entitled "An act to fix the time of the annual session of the general assembly," the third Monday of November in each year is declared to be the day for the annual assembling of the general assembly.

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, as follows:

The members of the general assembly shall convere in the city of Montgomery on the first day of November in each year, unless that day be Sunday, and if that day be Sunday, then on the next day afterward.

This provision of the law was amended so as to require the general assembly to meet on the third Monday of November, as before stated.

By act of the general assembly of Alabama, approved 13th February, 1850, entitled "An act supplemental to an act making appropriations to establish the State-house at Montgomery," and by the original act approved 11th February, 1850, the State of Alabama provided for the erection of the present capitol, or State-house, at Montgomery, and the construction therein of a hall of the house of representatives and the senate-chamber, for the use of the general assembly of this State, and from the time of the removal of the seat of government from Tusca loosa to Montgomery the two branches of the general assembly have been accustomed to use, for the purposes of their legislative sessions, the hall and chamber provided for them in the capitol now in use, and in that previously standing on the same site; and no other hall or chamber in Montgomery or elsewhere, except for a short period in 1849-50, during a session of the legislature, when, in consequence of the destruction of the State-house by fire, the general assembly, by the concurrent action of the two houses, held their sessions in another building in Montgomery.

By act of the general assembly of Alabama, approved October 8, 1868, entitled "An act to regulate elections in this State, it is provided (section 7) that State senators shall be elected on the first Tuesday after the first Monday of November, 1872, and every four years thereafter; in section 6, that representatives in the general assembly shall be elected on the first Tuesday after the first Monday in November, 1870, and every two years thereafter.

This act further provides as follows:

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.

SEC. 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 elec

tions.

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 ballots, 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.