BALDWIN vs. TROWBRIDGE.

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February 9, 1866.—Laid on the table and ordered to be printed.

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Mr. Marshall, from the minority of the Committee of Elections, submitted the following

REPORT.

The undersigned, having carefully considered the questions of law involved in this case, has come to the conclusion that Mr. Baldwin was duly elected and is entitled to the seat which he claims.

It is admitted that of the votes cast within the State of Michigan for representative in Congress from the fifth congressional district of that State Mr. Baldwin had a majority. It is also admitted that a large number of citizens of Michigan who were out of the State and in the service of the United States on the day of said election, in pursuance of the provisions of an act of the legislature of Michigan, approved February 5, 1864, voted at the places where they happened to be on the day of election; and that if these votes can be lawfully counted, Mr. Trowbridge had a majority and was duly elected. If they cannot be lawfully counted, Mr. Baldwin was duly elected, and is entitled to the seat.

The question submitted is, therefore, purely a legal one, and involves some nice questions of constitutional law.

Article VII, section 1, of the constitution of the State of Michigan, after prescribing the qualification of electors, provides that "no citizen or inhabitant shall be an elector, or entitled to vote at any election, unless he shall be above the age of twenty-one years, and has resided in the State three months, and in the township or ward in which he offers to vote ten days next preceding such election."

The supreme court of Michigan, in a case arising out of the identical election out of which this contest has arisen, (the case of The People ex rel. Daniel S. Twitchel vs. Amos C. Blodgett,) have construed this provision of their constitution to mean that the elector shall be personally present, in the township in which he resides, on the day of election, and there in person present his ballot at the place of voting; and that the act of the legislature of February 5, 1864, "IS IN DIRECT CONFLICT WITH THE CONSTITUTION, AND FOR THIS REASON VOID." This case was very thoroughly discussed and considered by the court, the judges all giving separate opinions, and it seems to me impossible to read the case without arriving at the same conclusion. This is the highest and most authoritative exposition of that provision of the State constitution that can be given. The supreme court of Michigan is the most authoritative expounder of the constitution and laws of the State, and all other tribunals, including even the Supreme Court of the United States itself, are bound to follow and abide by the construction which the State court has placed upon their own constitution.

I will not dwell upon this point in the case, as I do not understand the majority of the committee, or, indeed, any one in behalf of the claims of the sitting member, to seriously dispute the correctness of the construction placed upon their constitution by the supreme court of the State. It is admitted, I believe, that the act of the legislature of February 5, 1864, was in direct conflict with the organic law of the State.

It is contended, however, that the legislature, in determining the times, places, and manner of holding elections for representatives in Congress, are not bound to conform to the provisions of the organic law of the State. That they have a power above, and wholly independent of their State constitution. And this power is supposed to be found in section 4, of article 1, of the federal Constitution, which is as follows:

"The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law make or alter such regulations, except as to the places of choosing senators."

In determining the proper construction to be placed on this clause of the federal Constitution, it is important to inquire, first, What was the object of the framers of that instrument in engrafting into it such a provision? Why was it deemed necessary and proper? It is hardly possible that there can be two opinions in regard to this.

The convention had provided for a federal Senate and House of Representatives, in which the legislative power of the proposed government was to reside. The effective organization and continuance of these bodies were necessary to the very existence of the government under the plan proposed. To have a Senate and House of Representatives it was necessary that members thereof must be elected at regular and stated periods; and it was argued with great force that a majority of the States, becoming refractory, might, by the simple act of refusing to provide the times, places, and manner of holding elections for senators and representatives, and thereby defeating the election of these officers, suspend the action, destroy the power, or even blot out of existence the federal government.

It became necessary, therefore—absolutely necessary—to secure the continued existence and effectiveness of the federal government, to reserve to Congress the power at any time by law to make or alter such regulations. The object was to secure to the federal government, for its own safety, the due election of these officers—not to confer upon the States, or any department thereof, any powers whatever, or to interfere in any way with them in their mode of electing these officers, as long as the exercise of this power was left to the States. The object manifestly was simply to leave to the States the power to determine the times, places, and manner of holding these elections, until Congress saw proper to exercise the powers conferred upon it for that purpose.

But it is argued that this power was by express terms left not to the States simply, but to the legislatures thereof, and that this is such a limitation upon the people of the States that they have no power to restrict their legislatures in the exercise of this right conferred upon them by the federal Constitution; but I submit, with all due respect, that not only the history and object of the section under consideration, but the proper definition of the term "legislature," as therein used, show the fallacy of this construction.

The "legislature" of a State, in its fullest and broadest sense, signifies that body in which all the legislative powers of a State reside, and that body is the people themselves who exercise the elective franchise, and upon their power of legislation there is no limitation or restriction, except such as may be found in the federal Constitution, or such as they may themselves provide by the organic law of the State. When they assemble in convention, which in large communities is from necessity done by the agency of delegates or representatives of the people, the whole legislative power of the State is then vested in such convention. It can abolish, or in whole or in part abrogate the proceedings of "the general assembly" or "legislative council" or "general court," or whatever may be the designation of that subordinate body in which is usually lodged a portion or residuum of the legislative power of a State. Indeed, the people of a State might provide for the periodical assembling of their convention, which would exercise and perform all legislative powers and duties without the intervention of that body of limited and restricted powers, popularly called a legislature, but which in the constitutions of most of the States is called by some other name. It is variously designated a "general assembly," a "legislative council," a "general court," and the like, and is nowhere understood to hold in its grasp all the legislative powers of a State.

In Missouri during the late rebellion, the State convention continued its existence for years, performing all the ordinary acts of legislation, and its power to do so is not questioned. That that was a "legislature" within the sense of the term as it is used in this clause of the federal Constitution will hardly be controverted; and indeed every State convention called by the people to determine the form of government, or the powers and duties of the various officers thereby created, is a legislature, and performs many of the ordinary acts of legislation. Indeed, it is the legislature par excellence of the State, and that other body usually created by it, whether called a "general assembly," "general court," or otherwise, is the creature of this paramount legislature, and is liable to be modified or annihilated whenever this "legislature" proper—the convention of a State— shall again assemble. This secondary or subordinate body is the creature of the organic law of the State, owes its existence to it, and can rightfully do nothing in contravention of its provisions.

If, then, this section of the federal Constitution can be construed to refer to this secondary or subordinate legislative body of a State, it must be held to mean that the time, place and manner of holding elections for representatives shall be prescribed in each State by the legislature thereof, such legislature acting in subordination and in conformity to that organic law to which it owes its own existence. If the State constitution has fixed no limitation, the power of the legislature is ample and complete. But if the constitution has fixed limits this legislature cannot transcend them, but must act within the limits prescribed, and if it goes beyond them its action is to that extent absolutely void.

Indeed, from the adoption of the federal Constitution until this time, it was never before contended, as far as I am informed, that the clause in question conferred upon that body in a State in which was reposed that residuum of legislative power, not exercised by the State convention, power to act utterly independent of, and in utter disregard of, the State constitution, by virtue of which alone it has any existence. The people have everywhere supposed that they had the power to fix a limitation upon the action of their legislature, in determining the times, places, and manner of holding elections for all offices. They have exercised this power in most of the States by fixing limitations in their State constitutions, and in every instance, I believe, where a conflict has been found to exist in this respect between the State constitution and an act of their legislature, the constitution has, by courts and legislative bodies, been sustained, and the acts of the legislature, to that extent, held to be null and void. And this House is now, for the first time, called upon to decide that in this respect a State legislature may override and utterly disregard the provisions of the very constitution that brings it into being. I admit that if there was an irreconcilable antagonism between the federal and State constitutions, in such case, there would be ground for the position taken by the majority of the committee. But no such antagonism exists. I therefore call upon the House to pause long before they establish a precedent that will operate as an invitation to the State legislatures to disregard those wholesome limitations which the people have attempted to place around the action of their own servants.

This long and undisturbed construction of their power to fix these limitations upon the action of their servants, placed upon the Constitution by the people themselves, and by all departments of the government, ought not at this late day to be disturbed, unless it is rendered absolutely necessary by the very terms of the Constitution itself.

This House has a record of its own, and has ever attempted to adhere to the construction placed by itself in former adjudicated cases upon the Constitution and laws. This is not a new question, as far as this House even is concerned. It is, indeed, res adjudicata. And we should not, without very strong reasons,indeed, depart from the precedents established by ourselves. These precedents are all in favor of the construction which I have here placed upon this clause of the Constitution.

The case of Shiel vs. Thayer, in the 37th Congress, reported in Bartlett's Contested Election Cases, page 319, is directly in point. The syllabus of the case says:

"The constitution of Oregon has fixed beyond the control of its legislature the time for holding an election for representative in Congress."

The report in that case was made by the then and now able chairman of the Committee of Elections, Mr. Dawes, and the right of Mr. Shiel to the seat was placed distinctly on the ground that the people of Oregon had the right, in their constitution, to fix the time for the election of a member of Congress.

"The committee," says the report, "are of opinion that the election held for representative in Congress on the first Monday in June, 1860, was held in pursuance of, and in conformity with the constitution and laws of Oregon, and that consequently the contestant is entitled to the seat." And again: "Notwithstanding this constitutional provision that general elections shall be held on the first Monday of June biennially, the legislature of Oregon seems to have believed that it had power to fix another time for the election of representative in Congress. * * * The committee have not deemed it necessary to determine what those reasons are for. With all due respect to the opinions of the gentlemen composing that legislature, they are of opinion that this House must, nevertheless, be the final judge of the meaning of this clause of the constitution of Oregon. And, for the reason stated, the committee have no doubt that the CONSTITUTION of the State has fixed BEYOND THE CONTROL OF THE LEGISLATURE the time for holding an election for representative in Congress, at the general election to be held biennially, and that at such election, so held IN PURSUANCE of the constitution, the contestant was duly elected." And again, in the debate in the House on this case, Mr. Dawes said: "It occurs to me, sir, that that provision of the Constitution of the United States which says that the time and place shall be specified by the legislature of each State, meant simply that they should be fixed by the constituted authority of the State until Congress itself should fix a time for the election in all the States."

In the case of Farlee vs. Runk, in the twenty-ninth Congress, it was held that where there was a conflict between the State constitution and an act of the legislature in regard to the place of voting for representative in Congress the provision of the constitution was binding, and the act of the legislature, so far as it conflicted with it, was void. (See Bartlett's Contested Election Cases, p.87.) And, without troubling this House with a further citation of authorities, I respectfully submit that the ruling of the House on this point has been uniform in every case in which the question arose.

But admitting that the legislature was acting, and had the right to act, by virtue of this section 4, article 1 of the federal Constitution, without regard to the State constitution, I still submit that all votes cast out of and beyond the State of Michigan were cast without any due, legal authority, and cannot properly be counted in determining the result of elections in that State, for the reason—

First. It seems to me plain that neither Congress nor the State legislature can, under that clause of the Constitution, fix or prescribe any places of voting for any office outside of the district, and especially outside of the State, within and for which the officer is elected. In the construction of all powers granted, we must have reference to the object for which the power is given. At and before the adoption of the Constitution, and ever since until within the last five years, all voters, everywhere in the United States, were required to vote within the district and State for which the officer is elected. At the time of the adoption of this clause, it is not easy to suppose that any one member of the convention for one moment thought that they were granting to Congress the power to permit citizens to vote outside of the district and State for which the officers were to be elected. If the legislature possesses this power, undoubtedly Congress possesses the same power. And if Congress possesses the power to prescribe places of voting outside of a district or State for a portion of its citizens, why not the power to prescribe places of voting outside of the State for all the citizens thereof? Why not prescribe that all the citizens of Michigan shall vote in Chicago for their members of Congress, and all the voters of Illinois go to St. Louis to vote for theirs? It may be said that this would be a gross abuse of power. But I deny the existence of any such power. And yet, if the power contended for by the committee exists, the other follows as a necessary consequence.

But the act of the Michigan legislature (by virtue of which the votes were cast outside of the State that it is proposed to count for the sitting member) does not prescribe the place or places of voting, and consequently the votes were not cast in pursuance of any competent authority. The provision of said statute is as follows:

"SEC. 7. At the elections herein provided for a poll shall be opened at every place, whether within or without the State, where a regiment, battalion, battery or company of Michigan soldiers may be found or stationed, and at such election all persons may vote who are thereto entitled by law and by the provisions of this act."

Now, will any one pretend that that prescribes a place or places of election? What place or places? Would a law which provided that any elector of Michigan should vote at any place, within or without the State, where he might happen to be on the day of election, prescribe a place of voting? This is too clear, I submit with all deference, to admit of argument. If Congress or the legislature can prescribe places of election outside of the State, I insist that the places must be named in the act; and that it is no compliance with the Constitution to provide that a man, or a company of men, may vote at any place where they may happen to be on the day of election, and that such a law does not prescribe a place of election at all.

It the above positions, or any one of them, be correct, it follows that all cast for either Mr. Trowbridge or Mr. Baldwin outside of the State of Michigan were cast without any authority of law, and cannot properly be counted in making up the result, and, consequently, that Mr. Baldwin is entitled to the seat.

I therefore propose, as a substitute for the resolution reported by the committee, the following:

Resolved, That the Hon. Rowland E. Trowbridge is not entitled to hold the now occupied by him in this House as a representative from the State of Michigan.

That Augustus C. Baldwin has been duly elected as a representative from the State of Michigan to the thirty-ninth Congress, and is entitled to a seat in this House.

S. S. MARSHALL.

• Minority Report on the Contested Election of Baldwin vs. Trowbridge (introduced on 1866-02-09 12:00:00 - CREATE_FROM - e677250) [This document]
• Report on the Contested Election of Baldwin vs. Trowbridge (introduced on 1866-02-05 12:00:00 - CREATE_FROM - e663587)
• Resolution on the Contested Election of Baldwin vs. Trowbridge (introduced on 1866-02-05 12:00:00 - CREATE_FROM - e663603)

• Minority Report on the Contested Election of Baldwin vs. Trowbridge (introduced on 1866-02-09 12:00:00 - CREATE_FROM - e677250) [This document] [view current proposal at this moment]
  • Motion to Print the Minority Report (introduced on 1866-02-09 12:00:00 - PROCEDURE - e663995) [view current proposal at this moment]
    • None (introduced on 1866-02-09 12:00:00 - ADOPT_PROPOSAL - e663996) [view current proposal at this moment]
  • None (introduced on 1866-02-09 12:00:00 - POSTPONE_DEBATE - e864282) [view current proposal at this moment]
  • Motion to Consider the Contested Election Case of Baldwin vs. Trowbridge (introduced on 1866-02-13 12:00:00 - PROCEDURE - e864283) [view current proposal at this moment]
    • None (introduced on 1866-02-13 12:00:00 - ADOPT_PROPOSAL - e864284) [view current proposal at this moment]