E Wass_EiL_64. Book : HB 3=L X 3±] "F 1 FACTS AND THE LAW, ON BEHALF OF THE HON. FOSTER BLODGETT, : ENATOR ELECT FROM GEORGIA. Empowered by the several reconstruction acts <>i Congress the people of Georgia held a convention which, on the 1 1 tli day of March, 1S68, adopted a constitution providing that "the General Assembly may by law change the time of election," and "members shall hold until their successors are elected and qualified." A Legislature of Georgia was elected under this con- stitution which, by the revolutionary proceedings of its members, was required to be reorganized under the orders of the Commanding General, in pursuance of an act of Congress approved December 22, 1869, which legislature ratified the Fourteenth and Fifteenth Amend- ments to the Constitution of the United States ; where- upon, by the act of Congress of July 15, 1870, said legis- lature was declared to be a " legal legislature of said State." And it was also further provided that " nothing in this act, or any other aet of Congress, shall be con- strued to affect the term of any member of the legisla- ture." Eut- .B65B2 This legislature, so elected and so legalized, chose, in the manner prescribed by a law of Congress and the laws of the State of Georgia, the Hon. H. B. M. Miller and the Hon. Foster Blodgett ; the former to serve in the Senate of the United States an unexpired term until the 4th day of March, 1871, and the latter to serve in the Senate for the term of six years from said 4th day of March. No criticism is had upon the manner or form in which either election was made, and Mr. Miller has been ad- mitted and holds his seat in the Senate under it. In pursuance of the power given by the constitution of Georgia, the General Assembly, by an act passed October 3, 1870, fixed the time for holding the election for members of the next succeeding legislature, to wit : on the 20th and 22c! days of December, 1870, inclusive ; and also by another act, passed October 25, provided "that the time for the annual meeting of the legislature shall be on the first Wednesday of November of each and every year, beginning with the year 187 1, and there shall be no annual meeting after the adjournment of this session until said time." At the time appointed by law an election for members of the legislature was had, to hold its first meeting at the last-mentioned date. The question now arises, under the act of Congress of July 25, 1866, whether the present Legislature ol Georgia is competent to choose a Senator for the term commencing on the 4th of March, 1871? By the constitution and laws of Georgia, as declared legal by the act of Congress, which further expressly provides that no construction of any act of Congress shall be made, otherwise the present legislature con- tinues in being until the qualification of its successors on the first Wednesday of November next; it will b( admitted that until that time there is no other legislature which can elect a Senator of the United States from Georgia to fill the term commencing on the 4th day oi March. Hence, if this legislature is not competent to elect a Senator Georgia, must be unrepresented in the Senate for more than eight months. It is an obvious and well-known rule of construction of statutes that all acts ought to be so interpreted as to prevent all failures in governmental action and all vacan- cies in office. The only doubt in the case of Mr. Blodgett arises upon the construction of the act of Congress of July 25, 1S66, which, so far as it affects this matter, enacts : kt That the legislature of each State which shall be chosen next preceding the expiration of the time for which any Senator was elected to represent said State in Congress, shall on the second Tuesday after the meeting and organi- zation thereof proceed to elect a Senator in Congress in the place of such Senator so going out of office. " By art. 1, sec. 4, Constitution United States, ' k the time, place, and manner of holding elections of Senators and Representatives shall be prescribed in each State by the legislature thereof, and Congress may at any time alter such regulations, except as to the place of choosing Senators." On the 25th of July, 1866, the State of Georgia, on account of her rebellion, had not then "any practical relations as a State with the United States," and it had no legal State government known to the laws of the United States, as by the act of July 19, 1S67, it was ex- pressly declared that the government of Georgia on the 23d of March " was not a legal State government." 4 On the 1 2th of March, 1868, by reviving the code of laws of Georgia, the law was made in section 1363, for the election of Senators, as follows : " The election of Senators for the United States Con • gress from this State shall be held by the General As- sembly during the sitting or session which immediately precedes the beginning of the term which they are to fill." It will be observed that the act of Congress of July 25, 1866, is merely directory in its provisions as to time and manner, and that the failure to comply with the act of Congress so regulatinjr it does not render an election, !~< OCT in all other respects regular, invalid; and it was so held by the Judiciary Committee of the Senate in their report upon the case of Senator Gilbert, of Florida, which was affirmed by a very decided majority of the Senate. The report is as follows : " Did its (the legislature's) failure to take action on that day and the two subsequent days, (which w r ere oc- cupied in electing the first two Senators,) in reference to the third Senator, render his election, in all other respects regular, invalid ? We think not/' The failure to comply with the act of Congress in the case of Gilbert was two-fold : First, that he was elected by the joint assembly without being previously voted upon by each house separately, and on a day other and different from that prescribed by the act of Congress. But it will be further observed, that the Constitution only empowers Congress to regulate the time and man- ner of choosing Senators, leaving to the States to pre- scribe the qualifications of the legislature which shall choose the Senator, precisely as the Constitution leaves the qualifications of electors of the House of Represent- atives to the legislature of the several States. Now, the Legislature of Georgia has prescribed, by the act before recited, the legislature which shall choose its Senators to be the one "holding its sitting or session which immedi- ately precedes the beginning of the term which they are to fill." Must not the act of July be construed to mean by " chosen" the legislature chosen, which by the laws and constitution of Georgia is competent to make the election to the next ensuing vacant term in the Senate. The act certainly ought not to be held to require an election of a Senator by a legislature, which, by the law which governs it, cannot hold a session in season to fulfill the required function. If the act of July 25, 1S66, is to be construed as pre- scribing the legislature and the qualifications thereof which shall elect a Senator, then such regulation is not within the power of Congress ; nor to say when and how a legislature shall be chosen. That is expressly re- served to the States. And such prescription, it is submitted, would render the act pro lento unconstitutional. Therefore the word " chosen" next before, must be construed only as descriptive equivalent to saying the legislature qualified and holding its session next before the occurrence of the vacancy, competent to do the act required of it. Indeed, when is a legislature chosen ? The members may be voted for on a given day. Is it chosen when the votes are cast? When they are counted or declared ? When thi certificate is given to the member which is only prima facie evidence of choice? Or is it chosen in contemplation of law at the time of its meeting, and, being judges of the qualifications of its own members, it is determined by rules previously estab- lished by law or by its own adjudication, that a quorum of its members is chosen, have appeared and qualified and competent to any legislative act? Can any legis- lature, in acceptation of law, be " chosen" until the members have accepted the trust and appeared and taken their seats? It is respectfully submitted that a legis- lature is not l ' chosen" until it has qualified itself in all respects to exercise its functions, powers, and duties. This reasonable construction of the word "chosen" in the act of July 25, 1S66, removes all question or doubt in the case of Mr. Blodgett. It removes all doubt or ques- tion of the constitutional exercise of the power of Con- gress in regulating the time and manner in the act of July 25, 1866; and it further enables Georgia to be rep- resented in the Senate of the United States during a very considerable period, when such representation would be otherwise lost. It will be seen that Mr. Blodgett was elected exactly according to the 1363d section of the code of laws of Georgia, by a legislature therein de- scribed as competent and legal to do the required act ; and therefore that next preceding the vacancy there is and can be no other legislature qualified, or holding its sessions, to make this election. This vacancy may not be supplied by the governor, because it is not a vacancy happening, that is, by accident or casualty, such as resig- nation or otherwise, during the recess of the legislature ; and if the governor should call together a legislature to make a new election, he would be obliged by law to call together the legislature that elected Mr. Blodgett, none other having existed in Georgia. It is further submitted, that non-compliance with mere directory enactments are never held to invalidate legis- lative or judicial action otherwise valid. And the Senate has decided, as we have seen, that failing to comply with the act of Congress, in regard to either time or man- ner, does not invalidate an election. And time and man- ner only are within the competency of regulation by act of Congress. If it be said that the legislature had not the power to provide for a change of time of meeting of the legisla- ture, then it had no power to change the time of election, and no legislature is therefore elected. It is therefore submitted, that there can be no doubt oi the right of the Hon. Foster Blodgett to his seat, espe- cially as no one appears to contest it with him. \ Gaylord Bros. Makers Syracuse, N. Y. PAT. JAN. 21, 1908 LIBRARY OF CONGRESS 013 704 916 8 * Bffl ' : .': : ::;;;: