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JANUARY 22 AND 29, 1927


Printed for the use of the Committee on Privileges and Elections

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Washington, D. C. The committee met, pursuant to the call of the chairman, at 10 o'clock a. m., in the room of the Committee on Privileges and Elections in the Capitol, Senator Richard P. Ernst presiding.

Present: Senators Ernst (chairman), Watson, Shortridge, Greene, Deneen, Edge, King, George, Neely, Stephens, Smith, and Caraway. There appeared before the committee in this executive session Oscar E. Carlstrom, attorney general of the State of Illinois; Cyrus E. Dietz, assistant attorney general of the State of Illinois; and on behalf of Frank L. Smith personally, James M. Beck, Cornelius J. Doyle, and James G. Condon; William H. Culver, secretary to Mr. Smith; and Mr. William C. Barnes.

The CHAIRMAN. The committee has been called together to consider the resolution which was offered by Mr. Reed of Missouri, which is as follows [reading]:

Resolved, That the question of the prima facie right of Frank L. Smith to be sworn in as a Senator from the State of Illinois, as well as his final right to a seat as such Senator, be referred to the Committee on Privileges and Elections; and until such committee shall report upon and the Senate decide such question and right, the said Frank L. Smith shall not be sworn in, or be permitted to occupy a seat in the Senate.

The said committee shall proceed promptly and report to the Senate at the earliest possible moment.

I thought that it would be well for the committee to have a conference this morning to determine what our method of procedure should be. We are all anxious to expedite the matter, and we would like to have suggestions from those who represent Mr. Smith, and if there be anybody here who is expected to take a position against Mr. Smith, we would like to hear from him or from them.

Mr. CARLSTROM. Mr. Chairman and gentlemen of the committee, I am attorney general of the State of Illinois. My purpose in rising is merely to enter my appearance in the proceeding representing the State of Illinois.

The CHAIRMAN. Have you any suggestions to make, representing the State of Illinois, with respect to the procedure in this case?

Mr. CARLSTROM. Not that I care to make at this time. I have arrived only this morning in Washington. I prefer to leave that to the counsel who have been here on the ground and are more thoroughly familiar with the matter than I.

Mr. BECK. Mr. Chairman, did you desire to note at this time the appearance of other counsel for Col. Frank L. Smith?


Mr. BECK. There are present here Mr. James G. Condon, of the Chicago bar; Mr. C. J. Doyle, of the Springfield, Ill., bar, and the speaker, James M. Beck, who represent Col. Frank L. Smith in the


I desire to say, if the committee will permit me, with respect to my own appearance for Col. Frank L. Smith, that he saw me about 10 days ago in the city of Chicago and asked me to represent his interests, and I accepted the employment, not as a professional employment or in the spirit of professional employment, but in a desire to be of whatever public service I could in the matter, which I am sure the whole committee will agree is of profound import.

The CHAIRMAN. Is there any other person who desires to be heard? Senator GEORGE. I suppose, Mr. Chairman, that the author of the resolution, Senator Reed, will appear before the committee?

The CHAIRMAN. I have requested him to be here. I notified him of the time of the meeting, and asked him to be here.

Senator CARAWAY. It strikes me that the first thing to do and the only thing we could do to-day, is to agree upon the procedure. I would like to have the chairman ask if those representing Mr. Smith have any suggestions that they want to make before we go into the regular consideration of the procedure.

Senator SHORTRIDGE. As to procedure, as to method, and as to when and where.

Senator CARAWAY. As to whether they want to offer some evidence, and when.

The CHAIRMAN. That will simplify the matter very much. Senator Deneen, we will be very glad to hear any suggestions that you have to make.

Senator DENEEN. I rise, Mr. Chairman, to present to the committee another counsel, Mr. Cyrus E. Dietz, of Moline, Ill., assistant attorney general of our State.

The CHAIRMAN. We would like to hear from you if you have anything in mind as to how you want this case presented.

Mr. DOYLE. I wonder if counsel would be permitted five minutes in which to confer. General Carlstrom has just arrived, this morning, and we have not had opportunity for any consultation with him. We will step out into the hall and confer and be back inside of five minutes, if you will give us that opportunity.

The CHAIRMAN. Very well. I wish you would make it only five minutes.

We can do very little more to-day than to provide for the method of procedure.

(At this point counsel representing the State of Illinois and personal counsel of Mr. Smith withdrew from the committee room for consultation.)

Senator DENEEN. I suggest that the clerk of the committee telephone to Senator Reed.

The CHAIRMAN. Let the clerk of the committee telephone to Senator Reed and notify him that we are meeting, and ask him if he will come over.

Senator CARAWAY. I do not think we are vitally concerned in Senator Reed's attitude, at all, because he will have to adapt himself to the procedure we finally take.

Senator DENEEN. I have not conferred with the counsel, and I do not know what their plans are.

Senator CARAWAY. You do not know whether they want to offer anything or not?

Senator DENEEN. I do not. I take it, however, that the initiative would be with Senator Reed. He complains or makes protest. Senator CARAWAY. Yes, but it is the issue with the committee. Senator DENEEN. I think it would be proper to have a complaint made, and then answer it.

Senator CARAWAY. Of course the complaint has been here, and we have discussed that.

Senator GEORGE. It was referred to our committee formally; what we all know as the report of the special committee.

Senator CARAWAY. And the testimony taken by them.

Senator GEORGE. And the testimony taken by them. That would be the basis of any hearing.

(At this point counsel returned to the committee room.)

Mr. BECK. Mr. Chairman and gentlemen of the committee, representing the views of my associates and my own views, we have to submit for the consideration of the committee the following suggestion. It seems to us that the Senate in its decision, under which this matter is referred to this committee, decided nothing except that they would not administer the oath until a committee of the Senate had considered the constitutional and other legal reasons which underlie the whole controversy. Therefore it was referred to this committee with a direction to consider two questions, both of which, in the last analysis, are purely legal.

The first question is the prima facie right of Frank L. Smith to be sworn in upon a certificate which has been submitted to the Senate. The second question is the final right of Frank L. Smith upon those credentials to sit in the Senate.

By the final right of Frank L. Smith I do not understand that indefinite right which, if he were a Senator for the next 20 years, would subject him, as any other Senator, to the possibilities of a motion to expel, because that right, of course, is the right that is necessarily predicated upon recognized membership; and therefore no suggestion is made here that a "final right" is a continuing right, which would be beyond the power of expulsion, because there is no such final power

Senator CARAWAY. Will you pardon me a moment?

Mr. BECK. Yes.

Senator CARAWAY. I think the thing that the committee is going to consider and I know that is what the Senate is finally going to pass upon is whether or not under the state of facts as it may be developed, Mr. Smith will be permitted to take the oath of office as a Senator. That will be a question of both law and fact.

Mr. BECK. Yes, exactly.

Mr. CARAWAY. I do not take it that this committee is going to have anything to do with, or that we in fact will make any report on, whether or not Mr. Smith might be expelled from the Senate.

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