NEW HAMPSHIRE. 



607 



mentioned. The bill was referred to the Com- 

 mittee on Privileges and Elections, who early 

 in June submitted to the Senate a detailed re- 

 port, concluding with a recommendation that 

 the bill should be indefinitely postponed, as 

 follows : 



The Committee on Privileges and Elections, to which was 

 referred the bill (8. 1341) to declare the true intent and 

 meaning of title 2, chapter 1, section 14, of the Revised Stat- 

 utes, have considered the same, and submit the following 



Under the Constitution of New Hampshire, adopted 

 in 1792. the Legislature of that State was chosen an- 

 nually in March and met in June following. In 1877 

 an amendment of the Constitution was adopted by 

 which the State Legislature will be. chosen biennially 

 on the first Tuesday of November. The amendment 

 takes effect on the 1st day of October, 1878, and a 

 Legislature will be chosen in November next, which 

 will first meet in June, 1879, whose term of office will 

 be two years from and after the seventh day prior to 

 the first Wednesday in June, 1879. The official term 

 of one of the Senators from New Hampshire expires 

 on the 3d day of March, 1879. If the Legislature 

 chosen in November next must elect the Senator for 

 the term commencing on the 4th of March next, the 

 State will be deprived of one of her representatives 

 in the Senate from the 4th of March, 1879, until the 

 Legislature meets in June, 1879. If, on the other 

 hand, the Legislature now chosen, which meets on 

 the first Wednesday of June next, may, under the 

 act of Congress, elect a Senator for the term com- 

 mencing on the 4th of March next, there will be no 

 interruption in the representation of the State in the 

 United States Senate. The question, therefore, is 

 one of great importance. 



The Constitution of the United States (Article I., 

 section 3) provides that "the Senate of the United 

 States shall be composed of two Senators from each 

 State, chosen by the Legislature thereof." Section 

 4 of the same article provides that 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, ex- 

 C3pt as to the places of choosing Senators." 



The effect of these provisions clearly is: 1. To 

 give to the Legislatures of the States, respectively, 

 the right to choose Senators in the Congress ; 2. To 

 give to the Legislatures of the States, respectively, 

 the exclusive power to fix the places of electing Sena- 

 tors, and in the absence of action by Congress the 

 power to prescribe the times and manner of electing 

 Senators; 3. To give to Congress the paramount 

 right at any time bylaw to make or alter regulations 

 aa to the times and manner of choosing Senators by 

 the Legislature of each State. In the exercise of the 

 power thus given by the Constitution of the United 

 States, Congress passed the act regulating the elec- 

 tion of Senators, approved July 25, 1866 (14 Stat. at 

 Large, p. 243). The provisions of this act were in- 

 corporated into the Revised Statutes, and are found 

 in section 14, chapter 1, title 2, of that volume, as 

 follows : 



" 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." 



Prior to the act of July 25, 1866, each State regu- 

 lated the times and manner of electing Senators as 

 well as the place of holding the election. Abuses 

 sprung up under this system which the act of Con- 

 gress was intended to avoid. In Borne cases parti- 

 Han members having control of a State Legislature 

 elected without reference to the choice of a Senator, 

 anticipating the expiration of a Senatorial term, and 

 that an intervening Legislature ohosen, or to he 



chosen, would be composed of a majority of members 

 of adverse politics to their own, elected a Senator 

 long before the term for which he was elected began. 

 In other instances, when the two Houses of the Legis- 

 lature were of adverse politics, the election of Sena- 

 tors was obstructed. To avoid these and other abuses, 

 and to secure the latest expression of the people 

 through its Legislature, and to enable the States re- 

 spectively to make such provision that no vacancy 

 for any period would occur in their representation in 

 the Senate for want of an election in time, Congress 

 passed the act of 1866, regulating both the time and 

 the manner of the election of Senators by the Legis- 

 lature of each State. 



The first section is the only one which it is neces- 

 sary here to consider. The word " chosen," used 

 in this section, is used in its ordinary signification 

 |* made choice of," " selected," " elected." The ob- 

 ject of the section is to prescribe the time of choosing 

 Senators ; nothing else. It does not confer any pow- 

 er of election upon the Legislature the Constitution 

 vests that power exclusively in the Legislature ; but 

 it does fix the time of the election. For the pur- 

 pose of avoiding the difficulties which would inevi- 

 tably happen if a particular day of the month were 

 named, the time is fixed with reference to the " meet- 

 ing and organization" of the Legislature which is to 

 elect. In order to do this, the Legislature which is 

 to elect must be clearly identified. That is intended 

 to be done in the language, " The Legislature of each 

 State which is chosen next preceding the expiration 

 of the time for which any Senator was elected," etc. 

 A Legislature is chosen when the members of the 

 two Houses of which it is composed are elected. 

 The Legislature specified in the section under con- 

 sideration is the one chosen next preceding the ex- 

 piration of the time for which any Senator was elected. 

 The choice, the meeting, and the organization of the 

 Legislature, are subjects which are all referred to in 

 this section, and were in the mind of the Congress 

 when the law was made; but they applied them to 

 different purposes. The word " chosen " is used, as 

 we have seen, to identify the Legislature which is to 

 elect ; the meeting and organization are referred to 

 for the purpose of fixing the day upon which the 

 election shall be commenced. If Congress had in- 

 tended to authorize the Legislature chosen and or- 

 ganized next preceding the expiration of the time for 

 which any Senator was elected, it would have said 

 so ; but it has not done so ; and in this connection, 

 recurring to the fact that the object of the act was to 

 secure the latest expression of the public will pre- 

 ceding the commencement of the term in the election 

 of a Senator by its Legislature, the omission to do 

 so must have been intentional. 



Congress undoubtedly intended to keep filled the 

 representation in the Senate from every State, and 

 expected when the act of 1866 was passed that the 

 States would so fix the time of the election and meet- 

 ing of their Legislatures as to accomplish this result. 

 But it also intended, what the act of 1866 expressly 

 declares, that Senators shall be elected at such times 

 as will enable the Legislature last chosen, and repre- 

 senting the last expression of the public will, to make 

 the choice. 



If the construction that the Legislature chosen and 

 organized next preceding the expiration of such term 

 must elect, is, as we think, against the plain language 

 of the statute, then the purpose to obtain the last ex- 

 pression of the public will may, in all oases, as it 

 would in this, be entirely defeated. A construction 

 which would admit of such results can not be given. 



The law of Congress upon this subject is, by the 

 Constitution, the supreme law of the land, and is ob- 

 ligatory upon all the States ; and if the section under 

 consideration be so construed as to vest the power to 

 elect in the Legislature chosen next preceding the 

 expiration of the Senatorial term, irrespective of the 

 time of its meeting, every State may BO regulate the 

 times of the election and meeting of its Legislature 



