
    CHARLES H. PAGE v. THE UNITED STATES.
    [No. 15594.
    Decided December 12, 1887.]
    
      On the Proofs.
    In 1884 William A. Pirce receives a certificate of election to the House of Eepresentatives from the governor. He is sworn in and takes his-seat. The claimant contests the election. The House decides that Mr. Pirce was not elected, and declares the seat vacant. A second election being held, the claimant is elected. He is paid from the-date of the resolution declaring the seat vacant. He claims for the period when Mr. Pirce occupied the seat.
    I.Though the election of a member of the House of Eepresentatives be-contested, yet so long as he occupies the seat under color of title, and until ousted by the action of the House, his acts as a member | are as legal as those of any of his colleagues.
    II.When a member of the House, having received his certificate of admission, is seated, he is prima facie entitled to the seat and to the salary.
    III.The Eevised Statutes (§ 51) contemplate a vacancy occurring during; a session of Congress, not one existing at its commencement. The predecessor referred to is some individual in the same Congress. [Affirmed, vide post.]
    
      The Reporters’ statement of the case:
    This case was appealed and submitted at the same term,, and was affirmed by the Supreme Court. The following' are the facts as found by the court below, and upon which the case-was considered by the Supreme Court:
    I. An election was held November 4,1SS4, for the purpose of electing, by the people, a Representative to the Forty-ninth Congress for the Second Congressional district of Rhode Island.
    II. The general assembly of said State, the 7th day of January, 1885, in grand committee, counted the vote and declared William A. Pirce elected, whereupon the governor of the State of Rhode Island delivered to him the following certificate of election, to wit:
    “ By his excellency'Augustus O. Bowen, governor, captain-general, and commander-in-chief of the State of Rhode Island and Providence Plantations :
    “ Be it known, that William A. Pirce, of Johnston, in the-State aforesaid, qualified according to the Constitution of the United States for a Representative in the Congress thereof, was, by the people of the Second district of said State, having’ the qualifications requisite for electors of the most numerous branch of the legislature thereof, on the 4th day of November, A. D. 1834, regularly elected a Representative from said State in the Forty-ninth Congress of the United States, in accordance with the laws of said State.
    “ In testimony whereof I have hereunto set my hand and ■caused the seal of said State to be affixed at Providence, this ninth day of January, in the year of our Lord one thousand ■eight hundred and eighty-five, and of the Independence of the United States of America the one hundred and ninth.
    “ [SEAL.] “AUGUSTUS O. BOWEN.
    “ By the governor:
    “Joshua M. Addeman,
    
      “Secretary of State.”
    
    Mr. Pirce was sworn in and took his seat in the Congress of the United States March 4, 1885.
    III. February 5, 1885, Charles H. Page served notice on said William A. Pirce that he .contestedhis election to the office of Representative in the Forty-ninth Congress of the United ■States for the Second Congressional district of Rhode Island.
    IY. January 25, 1887, the House of Representatives of the •Congress of the United States agreed to the following resolution, to wit:
    “Resolved, That William A. Pirce was not elected a member of the House of Representatives of the Forty-ninth Congress, from the Second Congressional district of Rhode Island, and that the seat be declared vacant.”
    An election thereafter was held in the said State of Rhode Island to fill said vacancy.
    Y. February 25, 1887, the certificate of election of Charles H. Page to the House of Representatives, Forty-ninth Congress, for the Second Congressional district of Rhode Island, was presented to said House. [It was in the same form as the certificate set forth in Finding II, except that the following words were added: “To fill the vacancy caused by the action of the National House of Representatives in declaring the seat of William A. Pirce vacant.”]
    Whereupon Charles H. Page was sworn in and took the seat formerly occupied by said Pirce.
    YI. William A. Pirce occupied the seat in the Forty-ninth ■Congress, House of Representatives, from the Second Congressional district of Bhode Island, from March 4,1885, to January-25, 1887; was recognized as the sitting member, voted, served on committees, and drew the salary for that time, amounting to $9,468.18 ; also, received mileage in the sum of $344.
    YII. Charles II. Page occupied the seat in the Forty-ninth Congress, House of Bepresentatives, from the Second Congressional district of Bhode Island, from February 25, 1887, to March 3, 1887; was recognized as the sitting member for that time, voted, served on committees, and drew salary from January-25, 1887, to March 3,1887, amounting to $531.82; also, received mileage in the sum of $175.20.
    
      Mr. Allan Rutherford for the claimant:
    The House of Bepresentatives, being the sole judge, by its. solemn resolution declared that no person had been elected to represent the Second district of Bhode Island in the Forty-ninth Congress, and that the seat was vacant. c Now, if there had been no election, and the seat was vacant, the vacancy must have existed from the very commencement of the Con-' gress, and as it appears from the certificate of the governor of Bhode Island, under which Charles H. Page was duly sworn in as a member of the Forty-ninth Congress from the Second district of Bhode Island, that he was “ regularly elected a Bepresentative from said State in the Forty-ninth Congress of the United States, in accordance with the laws of said State, to fill the vacancy caused by the action of the National House of Bepresentatives in declaring the seat of William A. Pirce vacant,” it must follow that Charles H. Page was elected to the whole of the Forty-ninth Congress, and not to any fractional part thereof. It may be the case that William A. Pirce had occupied the seat under color of title and received pay, but this can in no way affect the rights of Page as the only Bepresentative in the Forty-ninth Congress from the Second district of Bhode Island. The payment of any portion of the salary as a Bepresentative in Congress to a man who was never elected can constitute no legal bar to the payment of the only man who was elected.
    It remains to inquire who was the “predecessor” of Charles-H. Page in Congress as a Bepresentative from the Second district of Bhode Island.
    
      To claim that William A. Pirce was “ the predecessor” in Congress of Charles H. Page would involve the absurd conclusion that the House of Representatives did not possess the power to pass upon the “election” or “qualifications” of its own members, and that, notwithstanding the. resolution of the House stating that William A. Pirce had ‘■'•not been elected a member of the House of Representatives,” that he had been elected, because, unless he was elected, he could not be the “predecessor” in Congress of Charles H. Page. The two sections, 49 and 51, of the Revised Statutes must be read and construed together, and, so construed, there can be only one conclusion* viz, that Charles H. Page was elected to the whole of the Forty-ninth Congress, as no other person had been elected, and, that being so elected, he is entitled to pay for the whole term.
    The difference between this case and that of Shelley v. The United States (19 C. Cls. R., 653) is, that in the Shelley Case the House found that some person (Smith) had been elected, and although Smith was never sworn in as a member of Congress, yet his widow received the pay due him up to the time of his death. This was in accord with section 49 of the Revised Statutes, and required no “straining” of the law,as under that section his widow had a legal right to the pay, and it can not be considered as a gift. The fact that it was not ascertained until after Smith’s death that he had been elected a Representative in Congress could not impair the right of his widow under section 49. Smith had “ been elected” a member of Congress. He had died after -the commencement of the Congress to which he had been elected.
    If the court had fully considered section 49 in their judgment in the Shelley Case, I doubt if they would have said “that he (Smith) could have had no successor to a place which he never possessed himself, and that he could have been a predecessor in nothing save an abstract right which had not even the at-, tribute of a chose in action. The declaration that Smith had been duly elected conferred no legal, right upon Smith or his heirs.” I contend that immediately upon the fact being ascertained (by the resolution of the House) that he was duly elected as a Representative from the Fourth Congressional district of Alabama to the Forty-seventh Congress, that Smith’s rights and the rights of his widow to his pay as such member vested under section 49.
    
      
      Mr. Heber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Davis, J.,

delivered the opinion of the court:

In November, 1884, an election was held in Rhode Island, one of the results of which was that William A. Pirce received from the governor a certificate in due form that he had been elected a member of the House of Representatives of the Forty-ninth Congress from the Second Congressional district of that State.' Mr. Pirce was accordingly sworn in and took his seat in that body. The claimant in this case contested the election, and in January, 1887, the House resolved that Mr. Pirce was not elected and declared the seat vacant. A second election was then held, claimant was elected, took his seat in the House, and received his mileage and his salary as Representative from the date of the resolution declaring the seat vacant until the expiration of the Congress. He claims in this action salary during the period when Mr. Pirce occupied the seat, upon the ground that as the latter was declared “not elected,” and as the seat was declared “ vacant,” claimant's “predecessor” was not Mr. Pirce, but the Representative from his Congressional district who sat in the Forty-eighth Congress. This contention is based upon section 51 of the Revised Statutes, which reads as follows :

“Whenever a vacancy occurs in either House of Congress, by death or otherwise, of any member or delegate elected or appointed thereto after the commencement of the Congress to which he has been elected or appointed, the person elected or appointed to fill it shall be compensated and paid from the time that the compensation of his predecessor ceased.”

Section 49 of the Revised Statutes is also relied upon by the claimant; this section provides that—

“When any person who has been elected a member of or delegate in Congress dies after the commencement of the Congress to which he has been elected, his salary shall be computed and paid to his widow, or, if no widow survive him, to his heirs at law for the period that has elapsed from the commencement of such Congress, or from the last payment received by him to the time of his death. * *

It is urged that as Mr. Pirce was declared not elected he was not claimant’s predecessor, and that the two sections above cited construed together lead to the conclusion that claimant was' elected to the whole of the Forty-ninth Congress, as no other person had been elected, and therefore is entitled to pay for the whole term.

We fail to see a distinction between this case and that of Shelley (19 C. Cls. R. 653). The facts in that case "show that Mr. .Shelley was paid as the member defacto, as,was Mr. Pirce in the case at bar; the House declared Mr. Shelley not elected, as it did Mr. Pirce, but added that Mr. Smith had been elected, and because of his death declared the seat vacant. After the resolution, but during the same Congress, at a second election, Mr. Shelley was returned as member. lie was paid salary from the date of the resolution declaring the seat, vacant, but not from the prior date of Mr. Smith’s death. Salary for this intervening period he claimed iu this court, but his contention was not sustained, the court holding that—

“The statute does not intend that the Government shall pay two salaries for the same seat at the same time; and the term “predecessor” must be restricted to him who was predecessor not in abstract right by virtue of a legal election, but predecessor in the matter of the salary of the place.”

Mr. Pirce presented the proper credentials. He was sworn in, served, and was paid. He held the position under a color of title at least, and until ousted by the action of House his acts as a member were as legal as those of any of his colleagues. The resolution unseating Mr. Pirce did not seat Mr. Page, and between its date and the date when the latter was sworn in a vacancy existed in the representation from Ehode Island. Mr. Pirce, when seated, was prima facie entitled to his seat and therefore to the salary (Kev. Stat., §§ 31, 38, 39, 46, 47, 48).

Eememberiug that the law gives to the sitting member — to him who presents the proper credentials — his salary in monthly payments after he shall have taken the prescribed oath, we turn to the following section (51), upon which claimant relies. This section contemplates a vacancy occurring during the session of Congress, not one existing at its commencement. It says when a “vacancy occurs,” “by death or otherwise,” “after the commencement of the Congress” the person elected “to fill it” shall be paid “from the time that the compensation of his predecessor ceased.” This ph raseology then refers to a vacancy occurring after the beginning of a Congress, and in that event authorizes a reference back to the predecessor, who is to be found in some individual previously in the same, not a preceding, Congress. This statute does not authorize the claimant to look for his predecessor in the Forty-eighth Congress. He must find him in the Forty-ninth Congress, and that predecessor is found in Mr. Pirce, who held the office and was paid by provision of law.

The only object of the section (51) is to provide as to salary, and the word “predecessor” as used therein must he held to mean predecessor in payment.

Petition dismissed.  