VIEWS OF MR. POMERENE AND MR. SUTHERLAND.

The Senate Committee on Privileges and Elections authorized and directed its subcommittee "to investigate certain charges preferred by the Legislature of Wisconsin against Isaac Stephenson, a Senator of the United States from the State of Wisconsin, and to report whether there was used or employed corrupt methods or practices' in his election."

Without intending to specifically enumerate the charges made or to review in extenso the evidence in support or in refutation thereof, it will be sufficient for our purpose to classify the charges and evidence pertaining thereto, as follows:

First, those connected with the proceedings of the legislature affecting the election; and,

Second, those growing out of the primary election.

PROCEEDINGS OF THE LEGISLATURE.

Each house, pursuant to the Federal statute, convened for the election of the United States Senator on January 26, 1909. The senate consisted of 33 members and the assembly of 100 members. Thirty-three members of the senate were present, and, before balloting, passed a resolution providing that "any senator who does not wish to vote for a candidate may vote by answering present.'" The roll was called, and 17 senators voted for candidates, 12 of whom voted for Isaac Stephenson. The 16 other senators simply voted "present." In other words, a quorum, in the language of the statute, voted for "one person for Senator in Congress," and of this quorum Isaac Stephenson received a majority. While the vote "present" of the 16 senators was in accordance with the resolution passed, we do not believe it could either add to or detract from the requirements of the statute. All members, no doubt, should have voted for "some person," but 16 voted "present," which was equivalent to a blank vote.

In the language of the majority of the committee in Ransom v. Abbott, "Senate Election Cases," page 400, "The vote must be for a person, not a blank-in fact, not for a myth, but for a person.

Without intending to review the authorities it is clearly established that "votes knowingly cast for a candidate who can not possibly exercise the function of the office if elected are thrown away." (State ex rel. Bancroft v. Frear, 144 Wisc., 87.) And, if this be true, it must follow that a mere vote of "present" is nothing more than a vote for "no person," or, in other words, a "blank," and should not, therefore, be counted in determining whether Senator Stephenson received a majority of the quorum of those who voted for "one person for Senator," and thereby complied with the letter and spirit of the statute.

XXVII

For other authorities bearing upon this proposition see Sawyer v. Makie, 149 Mass., 269; "Cooley on Constitution Limitations," 932, Note 1; Rushville Gas Co. v. Rushville, 6 L. R. A., 315; Hopkins v. Duluth, 81 Minn., 189; and Commonwealth v. Cluley, 56 Pa. St., 270. On the same day in the assembly 82 votes out of the 100 assemblymen were cast, and Isaac Stephenson received 60 out of the 82 votes. He, therefore, received, in our judgment, "a majority of the whole number of votes cast in each house." The vote thus cast was entered upon the journal of the senate and of the house. In conformity with the provisions of the Federal statute, the members of the two houses convened at 12 o'clock noon, on the day following, in joint assembly. The journal of each house was read, and showed the result of the balloting on the previous day in each house separately, as hereinbefore stated. Having received a majority of all of the votes cast in each house, it was the duty of the presiding officer to declare Senator Stephenson duly elected. This was purely a ministerial duty, and the mere fact that he failed to perform that duty could not, under any legal principle, undo that which was legally done in the separate and joint sessions, and, except for this failure of the presiding officer, was completely done.

Instead of declaring the result, over the protest of Senator Hudnall, a ballot was ordered and taken on that day and on each succeeding day until and including the 4th day of March, 1909. Prior to March 4 no one in any of the sessions received a majority of the votes cast. On March 4 there were 123 votes cast, of which Isaac Stephenson received 63, and he was then declared duly elected.

CHARGES OF CORRUPTION IN ACTION OF GENERAL ASSEMBLY.

Charges of corruption were made to the effect that-

(a) Assemblyman Leuch was offered money to go upon the floor and vote for the purpose of effecting a quorum;

(b) That Assemblyman Joseph Damochowski had been offered $1,500 for his vote; and

(c) That Assemblymen Farrel, Ramsey, and Towne absented themselves from the joint session of the joint assembly on March 4 through corrupt influences.

CHARGE AS TO ASSEMBLYMAN LEUCH.

He testified that David H. Davies, on March 1, 1909, said: "I have authority to tell you that you can have anything you want if you will stay in the joint convention to-day and vote." Mr. Davies denied having any such conversation, and swore that he neither authorized nor was in a position to pay or promise Mr. Leuch anything whatsoever. Whether this conversation occurred or not, there is no evidence connecting it directly with Senator Stephenson, or even indirectly through any authorized agent.

CHARGE AS TO ASSEMBLYMAN DAMOCHOWSKI.

There was testimony to the effect that Joseph A. Damochowski had said to several parties that he had been offered $1,500 for his vote in the assembly. He admitted that he had so stated upon several

occasions, but in explanation thereof said that any statements he made to that effect were in jest, and that no such offer was in fact made. Outside of these admitted statements, there was no evidence either that any bribe had been offered to or received by him, and no evidence tending to connect Senator Stephenson or his managers with this alleged attempt to bribe.

MEMBERS ABSENTING THEMSELVES ON MARCH 4.

On March 4, 123 members of the joint assembly were present and voting. Sixty-three members being a majority of those voting, cast their ballots for Mr. Stephenson, and, having for the first time received a majority of those voting in the joint session, he was duly declared elected.

We think it is fair to say that the record shows that an effort was made by some of the friends of Mr. Stephenson either to pair some of those who were opposed to Stephenson's election with those who were absent and favorable to his election, or to secure the absence of those who were opposed to his election, for the purpose of reducing the number who might be in the joint session and voting, and thereby enable those who were favorable to his election to have a majority of the votes cast.

Richard J. White, a friend of Mr. Stephenson, succeeded in pairing Ramsey, a Democrat, who was opposed to Stephenson's election, with Mr. Fenelon, who was a supporter of Mr. Stephenson and because of sickness was not able to attend the session.

Towne, a Democrat, left the chamber just before the voting began and was taken into a cloakroom by C. C. Wayland, one of Mr. Stephenson's lieutenants, and there held in conversation while the balloting was going on, and we have no doubt that Wayland purposely detained him, and Towne to say the least-was indifferent

about the situation.

Farrel left the assembly room before the roll was called and went to a café for luncheon, and did not return until sometime after the result of the election had been declared. The absence of Towne and Farrel while the joint assembly was in session is not consistent with their duties as assemblymen, nor is their explanation satisfactory. But, whatever the facts may be, there is no evidence in the record, nor any obtainable, so far as the committee knows, which would justify the conclusion that the absence of any of these three men was secured by corrupt means. It was necessary for Ramsey, Farrel, and Towne all to have been present and voting in order to prevent Stephenson from having a majority vote in the session. The other seven absentees were satisfactorily accounted for, and no suspicion, so far as we know, attaches to them.

We therefore conclude:

First, that the election in fact occurred on January 26, 1909; and Second, that there is no evidence justifying the conclusion that corrupt "methods or practices" were employed in securing the vote on March 4, 1909, even if it should be held that the election took place on March 4.

PRIMARY ELECTION IRREGULARITIES.

Senator Stephenson's account filed with the Secretary of State shows that there was expended by him and through his committee

in connection with the primary election $107,793.05. He received 56,909 votes, which cost him $1.89 for every vote cast.

These expenditures, for the purpose of this report, may be divided into the following classes:

First, moneys paid out to persons employed by him or in his behalf to circulate nomination papers in order to get the number of signatures required by the Wisconsin statutes before his name could be placed upon the ticket.

Second, moneys paid out as follows:

(a) to newspapers for political advertising;

(b) for editorial support;

(c) for lithographs, campaign material, postage, telephone, telegraph, and express charges;

(d) office expenses, including rent, clerk hire, and assistants.

Third, payment for services of speakers, hall rent, music, and for men devoting their time and efforts in cultivating Stephenson sentiment throughout the State;

Fourth, moneys expended for workers at the polls, and for conveyances and services in getting out the voters;

Fifth, for drinks and cigars;

Sixth, money given to C. C. Wellensgard, L. L. Bancroft, and Thomas Reynolds, who were candidates for the legislature, to be used by them in the interest of Senator Stephenson;

Seventh, money paid to the game warden, John W. Stone, for use in the Senator's campaign;

Eighth, $2,000 contributed by Senator Stephenson to the State campaign committee for general election purposes; and

Ninth, expenses incurred during the session of the general assembly in opening and maintaining headquarters at Madison from the beginning of the session until after March 4, 1909, and for hotel bills and traveling expenses.

No part of the contribution to the general campaign committee or the expenses incident to the headquarters during the session of the general assembly were ever reported to the secretary of state. The above we believe to fairly represent the different classes of expenditure, which were disclosed by the evidence.

There was no evidence before the committee from which it could be fairly concluded that any of this money was expended for “corrupt methods or practices," unless those recited are to be construed as corrupt under the provisions of the Wisconsin statutes.

MANAGEMENT OF THE CAMPAIGN.

The testimony showed that Senator Stephenson had on deposit in the Marshall & Illsley Bank $50,000, which was used in the campaign, with other added as required. His campaign was in charge of E. A. Edmonds, J. H. Puelicher, and Rodney Sackett.

There are 71 counties in the State and 2.200 election precincts. The method of the managers was to employ a lieutenant or campaign manager in each of the counties. In several instances one man had charge of a number of counties. Arrangements were made with these managers by which sums of money would be placed in their hands varying from $100 or several hundred dollars to several thousand dollars. In some in-tances the manager was not given, and

would not accept, compensation for his services. In others definite arrangements were made for the amount of compensation the manager was to receive, and in many cases the manager would determine and retain for himself such sum or sums as he deemed proper. It is quite clear that a very substantial part of the money expended in the organization of the several counties never went beyond the pockets of those who received it. The money expended by these managers, so far as the testimony discloses, was for one or more or all of the purposes above described.

WISCONSIN ELECTION STATUTES.

The Wisconsin statutes defining election offenses are fully set forth on pages 10, 11, and 12 of the views submitted by Senator Heyburn, chairman of the subcommittee, and it will not be necessary, therefore, to insert them here.

APPLICATION OF THE LAW TO THE FACTS-NOMINATION PAPERS.

Before a candidate for office is entitled to have his name placed upon the ticket at a primary, the Wisconsin statute requires that petitions or nomination papers shall be filed, signed by at least 1 per cent of the voters of his party in at least each of six counties in the State, and in the aggregate not less than 1 per cent nor more than 10 per cent of the total vote of his party in the State.

The testimony shows that Senator Stephenson hired and paid men to circulate his nomination papers in order to get the required number of signatures, but there was no evidence showing that any money was paid, in the language of the statute, to induce anyone to sign his nomination papers, and we do not think it was seriously claimed by those who were interested in the instigation of these proceedings that any money was unlawfully expended for this purpose.

EXPENDITURES OF MONEY DURING THE PRIMARY CAMPAIGN.

Was it a violation of the statute to pay out money for political advertising in the newspapers, or for editorial support, or for lithographs, campaign material, or for telegraph, telephone, or express charges, or for office expenses, including rent and hire of assistants, or for the hiring of speakers, halls, rent, music, and for men devoting their time and efforts in cultivating Stephenson sentiment throughout the State, or to pay workers at the polls, or for conveyances and services in getting out the voters, or for money for drinks and cigars given in a social way during the campaign?

A careful examination of the bribery statutes of Wisconsin will indicate clearly that the expenditures of money of the character recited only comes within the inhibitions thereof, when they are made. corruptly, unless section 298 forbids it. This section reads:

Every person who, by bribery or corrupt or unlawful means, prevents or attempts to prevent any voter from attending or voting at any caucus mentioned in this act, or who shall give or offer to give any valuable thing or bribe to any officer, inspector, or delegate, whose office is created by this act, or who shall give or offer to give any valuable thing or bribe to any elector as a consideration for some act to be done in relation to such caucus or convention shall be deemed guilty of a misdemeanor, etc.