fill such vacancies."23 The executive authority of a State may receive the resignation of a member of the House of Representatives, and issue writs for a new election, without waiting to be informed by the House that a vacancy exists in the representation of that State." 24

§ 124. Qualifications of Representatives. "No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State, in which he shall be chosen."25

By an inhabitant in this clause is meant a bona fide resident of a state, subject to its laws, and entitled to all the privileges which they confer.20 Length of residence is immaterial,27 and it is not necessary that the person elected to Congress is a voter in the State 28 he must be, however, something more than a mere sojourner.20

The age requirement has been construed to mean that a representative must be twenty-five years of age at the time he takes his seat, not necessarily at the time of his election. If a district elects as their representative a man less than twenty-five years of age, but who will reach such age before the expiration of the term for which he has been chosen, the district will remain without representation until the party they have chosen completes his twenty-fifth year.

Neither the House of Representatives30 nor the legislature of any State can change the qualifications for representatives.31

§ 125. The Senate. "The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six years; and each senator shall have one vote. Immediately after they shall be assembled in consequence of the first election they shall be divided as equally as may be

into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.

"No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.

"The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

"The Senate shall choose their other officers, and also a president pro tempore, in the absence of the Vice-President ,or when. he shall exercise the office of President of the United States." 32

The equal representation of the States in the Senate was a concession to the smaller States and was one of the provisions in the Connecticut Compromise.33 This provision is the most strongly protected one in the Constitution, the Fifth Article limiting the power of amending the constitution by providing that no State without its consent shall be deprived of equal representation in the Senate.

The division of the Senators first elected into three classes was determined by lot, the States not being allowed to designate which of the two Senators they chose should take the longer term. The same procedure is followed upon the admission of new States. Although there is nothing in the Constitution directing it, it has always been so arranged that the two senators from the same State should not be in the same class.

The second clause of the third section of the First Article closes with an ambiguous provision which has since been the oc

32 United States Constitution,

Art. I., Sec. III., Clauses 1-5, in

clusive.

33 See Chapter IV.

casion of a great deal of controversy: "And if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancy." Under this clause the question has arisen several times whether, when the legislature is in session when the vacancy occurs, and then adjourns without electing a senator, the governor may fill the vacancy.

The intention of the Constitutional Convention on this point can be readily seen by examination of the first draft of the Constitution as reported to the Convention by the Committee on Detail on August 6th. In this draft, Article V., Section 4, read as follows: "The Senate of the United States shall be chosen by the legislature of the several States. Each legislature shall choose two members. Vacancies may be supplied by the. Executive until the next meeting of the legislature. Each member shall have one vote."34 Here is an unequivocal grant to the executive of the several States of the right to fill vacancies in the Senate, no matter when occurring. This grant of power was never thereafter changed by the vote of the Convention, and never intentionally changed at all. The ambiguity arose from the language adopted by the Committee on Style, in their final draft of the Constitution. This was a finishing committee appointed by the Convention to correct the style and form of the Constitution without any power to alter its substance. It is thus clear from the study of the history of the Constitutional Convenion that the executive authority of the State should have the power to fill a vacancy in the Senate, even when the same arises from the failure of the legislature to elect; the Senate, however, upon every occasion when the question has come before them, has refused to seat the member thus appointed.35 It must therefore be taken as the settled law that the governor of a State cannot fill a vacancy in the Senate which existed while the legislature was in session.

The statutes of the United Statesse provide that the legislature

"Madison's Journal of the Federal Convention, under date of August 6th.

35 Johns, Taft El. Cases, 1.

Rev. Stat. U. S., Sec. 14.

37

chosen next preceding the expiration of the term of office of any senator shall elect a senator on the second Tuesday after its meeting and organization. In case of a vacancy the election shall be held on the second Tuesday after the legislature shall be organized and have notice thereof. In either case at least one ballot a day must be taken till the end of the session by the legislature, unless the senator be sooner chosen.38 A senator can never be elected by a minority vote, even if the person receiving the majority vote is ineligible.39 Where each of two rival legislatures; one more nearly approaching a de facto legislature and the other more nearly a de jure legislature, but neither of which has a majority of legally elected members, elect senators, neither of such senators can claim a legal election and both will be denied a seat.40

§ 126. Method of Electing Senators and Representatives. Meetings of Congress. The respective powers of the Federal and State governments over the elections of senators and representatives have already been discussed. The constitution provides that Congress shall meet at least once in each year and that such meeting shall take place on the first Monday in December unless Congress shall fix a different day.2 The Articles of Confederation had provided for a yearly meeting of Congress on the first Monday in November.

43

§ 127. Contested Elections. Rules and Regulations of Congress. The Constitution makes each house the judge of the elections, returns and qualifications of its members. Either house can decide all questions both of law and of fact necessary to determine the right of any individual who may claim to be one of its members.11 The returns from the State authorities are only prima facie evidence.45 A decision made by either house can

37 Rev. Stat. U. S., Sec. 17. 35 Rev. Stat. U. S., Sec. 15.

39 Rawson v. Abbott, Taft. El. Cases, 338.

40 The Louisiana Cases, Taft. El. Cases, 426.

"See Chapter V.

42 United States Constitution, Art. I., Sec. IV., Clause II.

43 United States Constitution, Art. I., Sec. V., Clause I.

45

"Baker, 1 Bart, El. Cases, 92. Spaulding v. Mead, Cl. & H. El. Cases, 157.

not be reconsidered and reversed.40 The courts have no jurisdiction over questions involving the right to a seat in either branch of Congress.1

A quorum of each house is fixed at a majority of its members: "But a smaller number may adjourn from day to day and may be authorized to compel the attendance of absent members in such manner and under such penalties as each house may provide." The Fifty-first Congress passed the following rule relative to a quorum: "On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerks and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. The constitutionality of this rule was upheld by the Supreme Court in the case of the United States v. Ballin, Joseph & Co."50

§ 128. Rules of Proceedings; Punishment and Expulsion of Members. "Each house may determine the rules of its proceedings, punish its members for disorderly behavior and, with the concurrence of two-thirds, expel a member.”51

The power of each house over its rules of proceedings is absolute and is not subject to judicial supervision. "Neither do the advantages or disadvantages, the wisdom or folly of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rule of proceedings. It may not by its rules ignore constitutional restraints, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are

46 The Louisiana Cases, Taft. El. Cases, 426; Corbin v. Butler, Taft. El. Cases, 582.

State v. Crawford, 28 Fla., 441; McDill v. Board of State Canvassers, 36 Wis., 505.

48 United States Constitution,

Art. I., Sec. V., last paragraph of
Clause I.

49

Rule XV., Sec. III., House Journal, 230, Feb. 14, 1890. 50 144 U. S. 1.

51 United States Constitution. Art. I., Sec. V., Clause II.