to matters concerning the election of members of the legislature, and the acts and conduct of members of the legislature and candidates in relation to the election of a Senator by the legislature.

The direct primary, legally speaking, is no part of an election of a United States Senator. The duty of an election of a Senator does not under any law rest with the electorate, but is vested by the Constitution solely in the legislature. The legislature electing had no existence until after the general election. The nomination of such members at the primary vested in the nominees not even an inchoate status. A State may give force and effect to a direct primary law providing for the nomination of candidates for State or minor offices to be elected under the laws of the State, but the legislature has no power to regulate in any manner or to any extent the election of a United States Senator, and there is no such proceeding known under any law of the United States as the nomination of a candidate for the United States Senate.

The question arises, Can any act in contravention of a law that is absolutely void work a forfeiture of any right to an office vested. through the compliance with the Constitution and laws of the United States? Did the proceedings preceding and at the direct primary relative to a choice for United States Senator amount to more than a "straw vote"?

The mere fact that the Legislature of Wisconsin had undertaken to include a senatorial selection within the provisions of its directprimary law, in the absence of power to so legislate, could not affect the validity of an election by the legislature made pursuant to national law; this must be obvious from the fact that the legislature was not in duty bound to elect anyone or consider anyone a candidate for election because of the action of the direct primary. It might have ignored such action altogether, and its having done so would not in any way affect the validity of its action.

There is no law of the United States recognizing such a thing as "candidacy" for the United States Senate, and no legal status is given to the frame of mind constituting an intention on the part of a man or his friends that he become a candidate before the legislature. The question also arises as to the period when a man can be charged with responsibility for his acts so as to affect the validity of his subsequent election by the legislature.

It frequently occurs that none of the men who are avowed candidates are chosen. The matter rests solely with the legislature, and under existing laws one legislature can not dictate the rule governing a subsequent legislature in the manner of its procedure relative to matters resting entirely within its discretion.

It would be entirely within the power of a legislature, charged with the responsibility of electing a United States Senator before proceeding to elect a Senator, to repeal any legislation enacted by a previous legislature which placed a limit upon or directed its action.

It seems from this consideration of the question we must conclude that the direct-primary proceedings can not be held to affect the validity of an election by the legislature.

FAILURE TO FILE PROPER EXPENSE ACCOUNT.

The fifteenth specific charge is based upon the failure or neglect of Isaac Stephenson to make and file an expense account under the laws of Wisconsin. This requirement is under section 270 of the election laws which provides that every person who shall be a candidate before any convention or at any primary or election to fill an office for which a nomination paper or certificate of nomination may be filed, shall, within thirty days after the election held to fill such office, make out and file with the officer empowered by law to issue the certificate of election to such office or place, a statement in writing, etc., and that any person failing to comply with this section. shall be punished by fine of not less than $25 or more than $500. This being a penal statute, the validity of an election could not be affected by the failure to comply with it.

GENERAL COMMENT.

The rule adopted by the several candidates for said office seems to have been unanimous in regard to filing expense accounts.

Senator Stephenson's expense account was $107,793.05.

S. A. Cook's expense account was $42,293.29.
William H. Hatton's expense account was $26,413.
Francis E. McGovern's expenditure was $11,063.88.
Neal Brown's expense account was $1,075.87.

The total expenditures of all candidates for the office of United States Senator before the primary election was about $225,000.

Less than one-half of the voters at the general election voted at the primary. The total vote cast in the Republican primaries for the nomination of United States Senator was 182,915, being 81 per cent of the total primary vote cast by all political parties for Senator.

The total vote cast in the Democratic Party for United States Senator was 37,479, or about 17 per cent of the total primary vote of all parties cast for Senator, and about 23 per cent of the total Democratic vote cast for governor at the general election.

Mr. Stephenson, a Republican candidate, received 56,909 votes.
Mr. Cook, a Republican candidate, received 47,825 votes.
Mr. McGovern, a Republican candidate, received 42,631 votes.
Mr. Hatton, a Republican candidate, received 35,552 votes.
Mr. Brown, a Democratic candidate, received 24,937 votes.
Mr. Hoyt, a Democratic candidate, received 12,227 votes.
Mr. Rummel, Social Democratic candidate, received 4,047 votes.
On the basis of the total vote received by each senatorial candidate
and the total cost of each candidate's campaign:

Mr. Stephenson spent $1.89 for every vote cast for him.
Mr. Cook spent $0.88 for every vote cast for him.

Mr. Hatton spent $0.85 for every vote cast for him.

Mr. McGovern spent $0.26 for every vote cast for him.

Mr. Brown spent $0.42 for every vote cast for him.

Mr. Hoyt spent $0.16 for every vote cast for him.

And there was spent in behalf of Mr. Rummel, the Socialist Democratic candidate, about $1 per vote.

Were it possible to hold that Mr. Stephenson was subject to the same restrictions under the laws of Wisconsin as a candidate for a State office, we would feel compelled to enter more fully upon the nature and character of the expenditures made by him and on his behalf during the primary campaign.

The amount of money expended by Mr. Stephenson, Mr. Cook, Mr. Hatton, and Mr. McGovern in the primary campaign was so extravagant and the expenditures made by and on behalf of these gentlemen were made with such reckless disregard of propriety as to justify the sharpest criticism. Such expenditures were in violation of the fundamental principles underlying our system of Government, which contemplated the selection of candidates by the electors and not the selection of the electors by the candidate.

Regardless of any statute requiring that strict accounts be kept of money expended by and on behalf of candidates, a candidate and every man representing him should know that public opinion would expect the parties to place and maintain themselves in a position so that if any of their acts were questioned they could justify such acts to the extent of giving every detail in regard thereto.

While I do not believe that the law of Wisconsin could constitute any man a candidate or place him in the position of and under the responsibilities of a candidate for an office over which the State had no control and which was not to be filled under any law of the State, yet I feel impelled to criticize the acts of those in charge of the expenditure of the money of men who are called candidates for the Senate, and especially of Mr. Stephenson, in the irresponsible and reckless manner in which they disbursed the money furnished them by Mr. Stephenson during the period of the primary campaign.

The failure to keep detailed accounts, the destruction of memoranda, the shifting of records and papers concerning the campaign from one place to another, the adoption of mysterious methods and roundabout ways in regard to matters that might just as well have been performed in open daylight in the presence of the people, would go far toward creating the impression that there was some occasion for Mr. Stephenson's representatives to avoid candor and to obscure conditions.

The subcommittee has gone carefully through all of the letters and correspondence which had been in the hands of Mr. Stephenson and his managers and which had been shifted from Milwaukee to Marinette. and from Marinette to points in Michigan, and back again, under most unusual and mysterious circumstances. These letters are not out of the ordinary political correspondence of campaign managers and citizens whose votes, influence, or services are solicited in behalf of a candidate.

The letters transmitting and acknowledging the receipt of money have been considered separately from those giving information in regard to political conditions and instructions in regard to how political work shall be done. There is nothing in the letters transmitting or acknowleding the receipt of money that would seem to add anything to the information given by witnesses in explaining these expenditures so far as they could explain them. The subcommittee has not thought it necessary to print this correspondence, which is in evidence and might be held to constitute a part of the record of the investigation. In our judgment, it would add nothing in the way of

assistance to the committee in ascertaining the facts necessary and proper to be considered in connection with the investigation.

Were a candidate for a State office in Wisconsin to conduct a campaign in the manner in which the campaign of Mr. Stephenson, and of other men who sought election to the United States Senate, were conducted, it would be very difficult to justify such conduct under the laws of the State.

The joint senatorial primary investigating committee in its report (submitted Mar. 18, 1910, but never acted upon), after reviewing the testimony, says:

Your committee believes that the Republican senatorial candidates and their managers did not deliberately plan to violate the law, but in their desire to win these candidates, particularly Stephenson, Cook, and Hatton, conducted their campaigns with the idea of getting results, and men were hired and money spent, and State officials and employees and members of the legislature were used without much regard to propriety. All of the Republican candidates probably spent all they could afford and the amount spent by the different candidates was probably limited more by their ability to spend than their appreciation of the moral effect of the expenditure of such large sums of money to secure the nomination.

This committee evidently looked upon the result of the direct primary as shown by the vote cast therein for each of the men who sought election to the United States Senate as constituting a legal nomination. I entertain a different view of that matter and look upon the primary nomination as a mere expression of a choice without legal effect, and do not recognize such expression as binding upon the legislature.

CONCLUSION.

The testimony clearly shows that the candidates felt compelled to spend more money than they wanted to spend. The pressure upon them from those who were undertaking to manage their campaigns seems to have been very great and persistent, but I can find nothing in the testimony nor in the circumstances or conditions surrounding the senatorial contest which resulted in the election of Mr. Stephenson that in my judgment would justify the committee in recommending that the seat be vacated, or that he be declared not legally elected to the United States Senate; and therefore I recommend that the Senate find that the charges preferred by the Legislature of Wisconsin against Isaac Stephenson, a Senator of the United States from the State of Wisconsin, are not true, and that Isaac Stephenson be acquitted of such charges.

W. B. HEYBURN.