electors, as it is also presented in one of the objections that have been submitted in the House. I have not had time since last evening to do more than to become possessed in my own mind of the general arguments and the results of those arguments applicable to the general principles of this case.

I have no doubt that the provision of the Constitution touching offices of trust, profit, and emolument, and that also relating to persons disqualified by participation in the rebellion, are imperative upon the several States, and it is expected that they will conform to them. Whether we can go behind, whether it was intended that we should go behind, the action of the States upon the assumption that they had violated that constitutional duty, or to prove that they had violated it, is a question that I leave to the consideration of those who shall follow me.

Of course I understand that one of the objections in Florida, if you do permit yourselves to go behind and examine it, does involve that point; but as my time has now nearly expired, I have not the opportunity to go into it and will leave it to counsel.

The PRESIDENT. You have five minutes of your hour.

Mr. Representative KASSON. May it please the Commission, I have said all that I regard essential in that part of the case which has fallen to me, and I trust my honorable friend who is associated with me will address himself still more effectually to points which I have alluded to and to the remaining points of the case.

My great anxiety and my belief in the great importance of this case all rest upon the fact that it is proposed that Congress shall, through you, usurp judicial powers for the first time in the history of this country. It is a usurpation which loses sight of the great divisions of authority in the Constitution of the United States and of the original reserved rights of the States.

I wish, in addition, to simply call the attention of the Commission to the recent decision in Florida, which has been published, and in which that court bases its decision against a judicial quality in the returningboard of Florida upon the constitution of Florida, which has the same division of powers to which I have referred as existing in the Constitution of the United States. The court therefore says that this canvassing-board cannot do anything except the ministerial act of determining upon the face of the returns irregularity, fraud, &c.; and by a strange inconsistency of argument, the gentlemen on the other side, coming to Washington in the case of Florida, ask this Commission to take the other ground, which has been overruled as law in Florida, and say that we, who have not the powers conferred by statute upon the Florida board, have immensely larger powers, which have not been hinted at in the Constitution and laws of the United States, and do have the right to exercise judicial functions.

I commend to the consideration of the Commission that decision, to which I refer, in the case of Drew vs. Stearns. And with that I submit this part of the case to the consideration of the Commission.

The PRESIDENT. The second objector will be heard on the same conditions and limitations.

Mr. Representative MCCRARY. Mr. President and gentlemen of the Commission, I think I ought to say in justice to myself that perhaps no counsel ever appeared in so important a case upon so short a notice and with such inadequate opportunity for preparation. It was not until about four o'clock yesterday that I was made aware of the rule which the Commission had promulgated during the day, providing that gen. tlemen of either House uniting in objections to these votes should be

heard before the tribunal; but appreciating the great importance of dispatch in the conduct of this case, I have not felt at liberty to ask for any greater indulgence than that which the tribunal has already awarded.

The question which this Commission is to decide is tersely and clearly set forth in the act of Congress under which it has been organized, and it is "by a majority of votes" to "decide whether any, and what, votes from such State, are the votes provided for by the Constitution of the United States."

How broad is the jurisdiction given by this act? How far can the Commission go in this inquiry? It has been asserted by counsel who addressed the tribunal this morning that you sit here as a court possessing all the functions and powers of a judicial tribuual clothed with authority to hear, try, and determine a case of quo warranto, in order to settle the title to an office. The announcement of the learned counsel of this proposition, I must confess, was a startling one to me. If it be true, what are to be the consequences? If this tribunal shall so construe the Constitution, and shall hold that it sits here as a court with these judicial powers to try the title of every one of the three hundred and sixty-nine presidential electors chosen at the recent election or at any election, it will follow that the two Houses of Congress sit as a court clothed with this great power to review and revise and set aside and hold for naught the action of all the States of this Union. If one case can be made against one elector in the United States, requiring Congress or this tribunal to go down among the forty-five millions of people and decide how many votes were legally cast for this candidate or that, a case can be made against every one of the members of the electoral college of the United States, and the result is-I say it with deliberation-that, unless the two Houses of Congress shall consent, the people of the United States can never again be allowed to choose a President and Vice-President. It is not necessary for me to say to this tribunal that it is utterly impossible for the two Houses of Congress to exercise such a jurisdiction as this. It is utterly impossible for this tribunal to exercise it with any degree of discretion or deliberation even in the few cases that will be brought to your attention and adjudication. If the Constitution clothes the two Houses with the power now asserted to try the title of all the electors, not upon the credentials that come here under the seal of the States of the Union, not upon the evidence which the laws of the land prescribe as evidence of title to this office, but by an inquiry into the question how many people have voted for this candidate and that, and in all the States of the Union, I say it is utterly impossible for either the two Houses of Congress or this tribunal to exercise a jurisdiction like that.

How are we to determine what are the votes of a State provided for by the Constitution? The Constitution has provided the extent of this inquiry, has limited and defined it:

Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.

The election of President of the United States is by the States, and the States appoint the electors. Gentlemen have argued, and their whole case rests upon the argument, that the appointment of electors is by the votes of the people at the polls; that that constitutes the appointment; and that, therefore, the Commission must inquire how the people have voted at the polls in order that Congress may decide who have been appointed electors. But, may it please the Commission, the

appointment of the electors is not by the votes of the people at the poils. That may possibly be one of the steps required by the laws of the State, but the appointment of the electors is by the vote of the people cast at the polls, by the action of such tribunals as the State laws have created, canvassing, determining, and ascertaining the result of that vote, and by the issuing in pursuance of that canvass of the evidence showing the election of the electors. The State acts through its officials, through its constituted authorities, and the State declares who has been appointed. Therefore when the Constitution says that we shall inquire who have been appointed electors by the State in accordance with the laws of the State or as directed by the legislature of the State, we are simply to inquire what persons have been declared to be electors by the tribunal and the authority which the State law has created for that purpose. Now, the law of Florida, which has already been called to the attention of the Commission, provides:

On the thirty-fifth day after the holding of any general or special election for any State officer, member of the legislature, or Representative in Congress, or sooner, if the returns shall have been received from the several counties wherein elections shall have been held, the secretary of state, attorney-general, and the comptroller of public accounts, or any two of them, together with any other member of the cabinet who may be designated by them, shall meet at the office of the secretary of state, pursuant to notice to be given by the secretary of state, and form a board of State canvassers, and proceed to canvass the returns of said election, and determine and declare who shall have been elected to any such office or as such member, as shown by such returns. If any such returns shall be shown or shall appear to be so irregular, false, or fraudulent that the board shall be unable to determine the true vote for any such officer or member, they shall so certify, and shall not include such return in their determination and declaration.

By that statute this tribunal was created with the power to canvass the votes and declare the result. The tribunal did canvass the votes and the canvass will be found on the third page of the same document, which I will not take the time now to read; but acting under the authority given them by that statute, they ascertained the result. How far they went in the exercise of the discretionary power which is given them by the statute, may not be material; but it is a fact, which will appear if this Commission shall go into the inquiry, that on three separate occasions, the first and regular canvass, the second canvass made under the mandamus proceedings and in relation to the office of governor, and on a third canvass made subsequently, this board constituted by the laws of the State of Florida ascertained and declared that the gentlemen known as the Hayes electors had a majority of all the votes cast.

Now, Mr. President and gentlemen, what law of Florida is to be looked at in order to determine the mode prescribed by the legislature of that State for appointing these electors? Are we to look at the law as it existed at the time of their appointment, or may we consider statutes that have been passed since? One of the papers which is presented is based entirely upon an adjudication of one of the inferior courts of that State and upon an act of the legislature of that State made long after the appointment of these electors, and long after they had discharged the functions of their office. It appears that a proceeding in quo warranto was commenced by the filing of a petition on the 6th day of December, the day upon which the electors met to cast their votes; that a summons was served upon that day at an hour in the day which is named in the papers; and that the electors were cited to appear and answer on the 18th day of the same month. The suit thus commenced continued and passed through various stages until the latter part of January, when a judgment was finally rendered in favor of the gentle

men known as the Tilden electors; but in the mean time-whether before or after the commencement of the original suit does not appear; I have seen nothing in the record that shows at what time in the day the votes were canvassed, but it is entirely immaterial-the electors appointed according to the laws of Florida proceeded to discharge their duties; they cast their votes; they adjourned sine die.

It is claimed by counsel that this quo warranto proceeding, which went into judgment nearly two months after the casting of the vote of Florida for President and Vice-President by the electors, relates back to the date of the filing of the petition and vacates and vitiates everything that was done in the mean time. That I think is not the law. The writ of quo warranto is a proceeding to test the right of an incumbent of an office. It does not restrain him from acting from the time that the original summons may be served. It does not oust him from the office until there is a final judgment of ouster; and there is no authority for the declaration of counsel, I undertake to say, that the judgment in quo warranto relates back to the time of the filing of the original petition and vitiates the acts of the officer in the mean time. The authorities are the other way, and I beg to cite a few cases upon that point.

I refer to section 756 of High on Extraordinary Legal Remedies:

The effect of judgment of ouster upon the officer himself, where the information is brought to test the right of one usurping an office, is to constitute a full and complete amotion from the office and to render null and void all pretended official acts of the officer after such judgment, and the party thus amoved is entirely divested of all official authority and excluded from the office as long as the judgment remains in force. In 55 Illinois Reports, page 173, will be found the case of The People es. Whitcomb, and there the court say:

The question sought to be raised by the information in this case is, whether the city officers can extend the city government beyond the original limits of the town, and canilevy taxes and enforce ordinances in the portion of territory annexed by the act of February 23, 1869, and which is used exclusively for agricultural purposes, and whether that act is not unconstitutional and void. The demurrer to the answer of respondents brought the whole record, as well the information as the answer, before the court to determine its sufficiency. The first question presented by the demurrer is, whether the remedy, if any exists, has not been misconceived; whether the question of power to extend the city government over this territory thus annexed can be raised by quo warranto.

This writ is generally employed to try the right a person claims to an office, and not test the legality of his acts. If an officer threatens to exercise power not conferred upon the office, or to exercise the powers of his office in a territory or jurisdiction within which he is not authorized to act, persons feeling themselves aggrieved may usually restrain the act by injunction.

I next refer to 2d Johnson's Reports, page 184. The whole opinion is very brief, and I will read it:

This court has a discretion to grant motions of this kind or to refuse them, if no sufficient reasons appear for allowing this mode of proceeding. The office of Sweeting, the acting supervisor, will expire in April, and before the remedy now prayed for cau have any effect. There must be an issue joined, and a trial, which could not take place before the next election, so that it would be impossible to restore Teel to his office. It would, therefore, be idle and useless to grant the motion.

That was an application for the writ of quo warranto to try a title to this office.

If the justices have been guilty of any misdemeanor, the party aggrieved must seek a different remedy.

Here, if the Commission please, is a case in Florida, where at the time of the judgment every function of the office of presidential elector had been exercised. The office had ceased to be. The officer had ceased to

be and was functus officio. What is the extent of the term of office of a presidential elector? There is no period of time given in the statute during which he shall act; but he is an officer chosen for the discharge of a particular public duty. When that duty has been performed the term of his office has expired.

I call attention also to a case in Massachusetts decided as early as 1807, the case of Commonwealth vs. Athearn, 3 Massachusetts Reports, page 285:

At the last July adjournment in Suffolk, B. Whitman filed a motion for a rule of court against the respondent to show cause why an information in the nature of a quo warranto should not be awarded against him for claiming to hold the office of town clerk of Tisbury, in Dukes County. The court granted a rule, de bene esse, returnable at this term.

And now the chief-justice suggested to Whitman that since granting the rule to show cause the court had considered the subject more fully and doubted whether, from the impracticability of giving a remedy in the case, an information ought to be awarded against an officer holding by election for a year only. Whatever may be the authority of the court to issue process of this kind, from the present organization of the terms of the court, it will in no case be possible to come to a decision of the question until a year has expired. In the mean time another election will pass, and the respondent will be either out of office or lawfully in by virtue of a new choice.

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PARKER, J. I should not be for granting an information in any case where the judgment of the court upon the information can have no effect. The officer may be liable to a fine in case judgment of amotion be rendered, but not otherwise, as I now recollect. When the information comes to a hearing, this man's tenure in the office he claims will have expired.

And therefore they refused to grant the writ, because the functions of the officer would have ceased before there could be a judgment of ouster, and because a judgment of that character, if the man had ceased to act in his official capacity, would be null and void.

I refer also to the case of the State upon the relation of Newman vs. Jacobs, 17 Ohio Reports, and I read a sentence from page 153:

But further, there is an objection to the proceeding in this case, even as to the ap pointment of February the 28th, because the term of office has at this time expired. In England it seems not to be considered necessary that the person should continue to hold the office at the time of applying for the information. In New York, however, and Massachusetts, the information has been refused when the time must expire before the inquiry would have any effect, leaving the parties to their common remedies.

I next cite a case decided by the supreme court of Georgia, and read from 19 Georgia Reports, page 563, the case of Morris et al. vs. Underwood et al.:

In England, notwithstanding the term of office has expired for which the incumbent has been elected who is sought to be removed, still the courts of that country will grant leave to file the information for the purpose of inflicting a fine for the usurpation; and that, too, perhaps, where no judgment of ouster can be awarded. It will be found, however, that even this is only done in those cases where the office illegally held is one of a public nature, such as mayor, &c. But the American courts, from the peculiarity of their constitutions, laws, and forms of government, or for some other cause, have, with great unanimity, repudiated this doctrine of imposing a penalty. It has never been enforced in this State, even where the proceeding was directly at the instance of the State. Much less would it be in a case like this, where the effort making is not to forfeit the charter of the bank, but to redress the wrongs of the relators within the corporation. In such a case it is strictly a civil proceeding.

In this case, the term for which these directors were elected had expired by efflux of time six months before the rule was made absolute. There could, therefore, be no judgment of amotion rendered.

There was an attempt in this quo warranto proceeding in Florida to render a judgment of amotion or of ouster nearly two months after the expiration of the term of office by the discharge of every duty and every function which belongs to an elector under the laws of the land.