Congress shall be chosen by the legislatures of the several States, and that "times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but that Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators."

Not until 1866 did Congress exercise the control over the election of Senators thus given it. Prior to that date the Senate had recognized the validity of elections based on majority votes in joint conventions of the two houses of the State legislatures, where a concurrent choice of the two houses sitting separately was not obtained. It was held, however, in the case of James Harlan, 1857, that in such joint conventions a quorum of both houses must be present. By the act of 1866 the entire matter was federally determined. The text of this law is given in the footnote.19

19 40 Rev. Stat., §§ 14-19.

Section 14. The legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to represent such State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress.

Section 15. Such election shall be conducted in the following manner: Each house shall openly by viva-voce vote of each member present, name one person for Senator in Congress from such State, and the name of the person so voted for, who receives a majority of the whole number of votes cast in each house, shall be entered on the journal of that house by the clerk or secretary thereof; or if either house fails to give such majority to any person on that day, the fact shall be entered on the journal. At twelve o'clock meridian of the day following that on which proceedings are required to take place as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person has received a majority of all the votes in each house, he shall be declared duly elected Senator. But if the same person has not received a majority of the votes in each house, or if either house has failed to take proceedings as required by this section, the joint assembly shall then proceed to choose, by a viva-voce vote

When there is a dispute as to which of two contesting State bodies is the de jure legislature, the United States Senate, while having the power to exercise its own judgment, will ordinarily recognize that body which is accepted as de jure by the other State authorities.

Vacancies in the Senate

It is provided by the Constitution that if vacancies in the Senate "happen by resignation or otherwise, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies."

There has been considerable difference of opinion as to the proper construction to be given to the term "happen as employed in the foregoing constitutional clause. By some it has been argued that a vacancy" happens" whenever, for any reason whatever, there is a vacancy in the representation of a State in the Senate. By others; it is asserted, that where a State legislature has had the opportunity to elect a Senator and has failed to do so, it cannot be said that a vacancy has “happened," but that it has been present and brought about by the non-action of the State electoral body, and that that body has thus impliedly shown that it does not desire the vacancy to be filled. This was the position taken by the Senate in 1900 in the case of Senator Quay from Pennsylvania.

The senatorial practice has not been uniform in respect to executive appointments to fill vacancies, but its action

of each member present, a person for Senator, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected. If no person receives such majority on the first day, the joint assembly shall meet at twelve o'clock meridian of each succeeding day during the session of the legislature, and shall take at least one vote, until a Senator is elected.

in the Quay case has probably determined the doctrine for the future.

Vacancies in the House of Representatives

When vacancies happen in the representation from any State, it is provided that the executive authority thereof shall issue writs of election to fill such vacancies.

Vacancies are occasioned by death, by resignation, or by acceptance of a disqualifying office.

CHAPTER XXIX

THE PROCESS OF LEGISLATION AS CONSTITUTIONALLY DETERMINED

Constitutional provisions

To a certain extent the manner of conducting business in Congress, and the processes of legislation are determined by the Constitution. It is provided that the Vice President shall be the president of the Senate, but shall have no vote except in case of a tie. The Senate, however, is empowered to choose its other officers, including the President pro tempore to preside in the absence of the Vice President or when he is exercising the office of President of the United States. The House is empowered to choose all of its officers, including the presiding officer, the Speaker.

It is required that Congress shall assemble at least once in every year, and that such meeting shall be on the first Monday in December, unless by law a different day is appointed.

A majority of each House is fixed as a quorum to do business, but a smaller number is competent to adjourn from day to day, and to compel the attendance of absent members in such manner and under such penalties as each House may provide.

Each House is authorized to determine the rules of its procedure, to punish its members for disorderly behavior, and with the concurrence of two-thirds to expel a member. Neither House may, without the consent of the other

House, adjourn for more than three days, nor to any other place than that in which the Houses are sitting.

Each House is required to keep a journal of its proceedings, and from time to time to publish the same, excepting such parts as may in its judgment require secrecy; and it is ordered that, at the desire of one-fifth of those present, the yeas and nays of members of either House on any question shall be entered on this journal.

The foregoing constitutional provisions impose duties upon and grant powers to the two Houses of Congress, the fulfillment and exercise of which are placed within the discretion of the Houses themselves. Very few questions arising under these clauses have, therefore, or could have been, brought before the courts. One important point has, however, been raised and deserves attention. This is discussed in the next section.

Conclusiveness of the records of congressional proceedings In a few instances the validity of laws purporting to have been enacted by Congress has been questioned upon the ground that they have not, in fact, been enacted by that body in accordance with the requirements of the Constitution. This has necessitated the examination of the records of the proceedings of Congress and a determination of the evidential value to be given to those proceedings.

In Field v. Clark1 it was contended by the appellants that an enrolled act in the custody of the Secretary of State, and appearing upon its face to be a law enacted by Congress, was a nullity, because, as was shown by the records of proceedings in Congress, and the reports of committees, including that of the committee on conference, a section of the bill as finally passed was not in the bill authenticated by the signatures of the presiding officers of

1143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.