<DOC>
[Cannon's Precedents -- Volume VIII]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:cannon_cclviii.wais]



                          Chapter CCLVIII.\1\
 
                    VOTING BY TELLERS AND BY BALLOT.

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   1. Rule for tellers. Section 3096.
   2. Vote by tellers interrupted by failure of a quorum. Section 
     3097.
   3. Inaccuracies in vote by tellers. Sections 3098, 3099..
   4. Chair may be counted in vote by tellers. Sections 3100, 
     3101.
   5. Request for tellers does not preclude demand for division. 
     Section 3102.
   6. Tellers may be demanded after refusal of yeas and nays. 
     Section 3103.
   7. Right to demand tellers not precluded by intervening 
     question as to quorum. Section 3104.
   8. No appeal from count of chair. Section 3105.
   9. The rule for election by ballot. Section 3106.

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  3096. The rules do not specify the manner in which tellers shall 
count the vote.
  In a vote by tellers it is a matter of mutual agreement as to whether 
each teller shall count his own side or the opposing side.
  On June 4, 1929,\2\ during the consideration of the bill (S. 312) to 
provide for the fifteenth and subsequent decennial censuses, and at the 
close of a vote by tellers on an amendment proposed by Mr. George 
Holden Tinkham, of Massachusetts, Mr. Robert A. Green, of Florida, 
inquired.

  Mr. Chairman a parliamentary inquiry. I desire to inquire if it is 
not in order under the rules of the House that when a teller vote is 
taken the opposing sides count the vote. Is not that true?

  The Chairman \3\ replied:

  There is no rule. The tellers are supposed to agree as to how they 
count the vote.

  3097. A vote on an amendment taken by tellers in the Committee of the 
Whole having disclosed the lack of a quorum and objections being made 
for that reason, the vote by tellers is taken anew upon the appearance 
of a quorum.
  Debate on a pending proposition is closed when the question is put on 
both the affirmative and negative, and the voidance of this vote 
through lack of a quorum does not open the question to debate when 
again under consideration.
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  \1\ Supplementary to Chapter CXXVIII.
  \2\ First session Seventy-first Congress, Record, p. 2364.
  \3\ Carl R. Chindblom, of Illinois, Chairman.
                                                            Sec. 3098
  On December 21, 1922,\1\ the Committee of the Whole House on the 
state of the Union resumed consideration of the agricultural 
appropriation bill with the question pending on an amendment offered by 
Mr. Albert Johnson, of Washington.
  Mr. Johnson recalled that on the previous day on which the bill had 
been under consideration the question had been taken on the amendment 
and tellers had been ordered when the lack of a quorum developed and 
the committee had arisen. Mr. Johnson as a parliamentary inquiry 
desired to know the status of the question.
  In response the Chairman \2\ said:

  The Chair has taken under consideration the situation in which the 
committee finds itself, due to the inquiry of the gentleman from 
Washington. Following the precedents and, in the opinion of the Chair, 
in the interest of orderly procedure, the Chair thinks that the 
committee should now revert to the point in its procedure where the 
gentleman from Washington originally offered his amendment, and that 
the several votes taken on the amendment be considered void. The Chair 
feels that when a vote is taken to which objection is made, due to the 
absence of a quorum, and the committee thereupon rises, the matter 
rests in the same state, so far as voting is concerned, in which it was 
in before the vote was taken, and must be resumed at this point when 
the bill is again considered. The Chair fortifies his position by a 
decision of Chairman Tilson on March 16, 1920, and by one of his own on 
December 5, 1919. Therefore the Chair will hold that the question now 
before the committee is on the amendment offered by the gentleman from 
Washington, which, without objection, the Clerk will again report.

  The Clerk read as follows:

  Amendment offered by Mr. Johnson of Washington: Page 4, line 14, 
strike out the figures ``85,000'' and insert in lieu thereof the 
figures ``$3,500.''

  Thereupon Mr. Johnson proposed to debate the amendment.
  The Chairman said:

  The Chair feels that any debate must be had by unanimous consent, and 
bases this ruling on a decision rendered by Chairman Walsh on January 
5, 1921, when the sundry civil bill was under consideration. On the 
previous day on an amendment offered the question was taken and the 
result announced. Division was had and the result of this vote 
announced. Then a point of no quorum was made and sustained. Thereupon 
the committee rose. The debate on the amendment had not been closed by 
motion or agreement. On the following day, when the amendment was again 
considered, a motion to strike out the last two words was made. In 
denying the right of further debate the Chair said:
  ``The Chair will state that debate upon this amendment is exhausted. 
The question had been put, the point of no quorum was raised, and the 
committee rose.''
  The Chairman feels that the ruling was correct.
  If further debate is to be permitted, is it not competent to ask why 
any additional time accrues because of the absence of a quorum, which, 
if a quorum had been present, would have disposed of the amendment 
without further debate? Why should the absence of a quorum permit 
additional time when the presence of a quorum would have denied it? The 
Chair feels that debate has been exhausted and can only proceed by 
unanimous consent.

  3098. On a vote by tellers the Chair announces the vote as reported 
by the tellers and does not inquire as to the correctness of such 
report.
  The report of the tellers having been announced by the Chair, it is 
too late to raise a question as to the correctness of the report.
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  \1\ Fourth session Sixty-seventh Congress, Record, p. 825.
  \2\ Frederick C. Hicks, of New York, Chairman.
Sec. 3099
  On December 12, 1919,\1\ during consideration of the Army 
appropriation bill in the Committee of the Whole House on the state of 
the Union, the pending question was on agreeing to an amendment 
recommended by the committee reporting the bill.
  The question being put, on a division, the yeas were 48 and the nays 
were 50.
  Mr. David R. Anthony, Jr., of Kansas, demanded tellers, which were 
ordered, and the Chairman appointed as tellers Mr. Anthony and Mr. 
Fiorello H. LaGuardia of New York.
  The tellers having reported, the Chairman announced that the yeas 
were 58 and the nays were 58, and the amendment was rejected.
  Following the announcement of the vote by the Chairman, Mr. Anthony 
said:

  Mr. Chairman, we counted General Sherwood's vote wrongly. He voted in 
the affirmative, and we counted him in the negative.

  The Chairman \2\ ruled:

  The Chair thinks the Chair could do nothing more or less than to 
announce the vote as reported by the tellers; and, since the Chair has 
made the announcement, as far as the Chair is concerned, the result 
will stand.
  The Chair has no personal interest upon either side of the question. 
There is but one thing for the Chair to do, and this is to announce the 
result as it is handed to him by the tellers.
  After the announcement of the result it is impossible to open the 
case and the Chair refuses to permit it.

  Mr. Warren Gard, of Ohio, asked unanimous consent that the Chairman 
be permitted to restate the vote.
  The Chairman said:

  Let the Chair state the question. The gentleman from Ohio asks 
unanimous consent that the Chairman be permitted to state the correct 
vote. Is there objection?
  Objection is heard.

  3099. Representation being made before announcement of the result 
that the count by tellers was incorrect, on a close vote, the Chairman 
ordered a recount.--On January 12, 1921,\3\ during consideration of the 
legislative, executive, and judicial appropriation bill in the 
Committee of the Whole House on the State of the Union, Mr. James H. 
Mays, of Utah, offered an amendment providing for an assay office at 
Salt Lake City.
  The vote being taken by tellers, the tellers reported yeas 42, noes 
42.
  Mr. Mays said:

  Mr. Chairman, I think it proper to have a recount. I ask for a 
recount because of the fact that I know of one gentleman who voted in 
the affirmative who was actually counted in the negative.

  The Chairman \4\ decided:

  The Chair presumes that the question of a recount would be within the 
discretion of the Chair. The vote is so close that the Chair thinks 
there might well be a recount.
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  \1\ Second session Sixty-sixth Congress, Record, p. 495.
  \2\ Martin B. Madden, of Illinois, Chairman.
  \3\ Third session Sixty-sixth Congress, Record, p. 1335.
  \4\ Nicholas Longworth, of Ohio, Speaker.
                                                            Sec. 3100
  3100. On a vote by tellers the Chair may be counted without passing 
between the tellers.
  The Chair may vote to make a tie and so decide the question in the 
negative as he may vote to break a tie and decide a question in the 
affirmative.
  On Fridays other than the second and fourth Fridays a motion 
providing for consideration of bills reported from the Committee on 
Claims or the Committee on War Claims has precedence of a motion to 
consider other bills on the Private Calendar.
  On Friday, February 18, 1921,\1\ it being the third Friday and a day 
on which bills reported from the Committee on Claims were in order, the 
House resolved itself into the Committee of the Whole House for the 
consideration of bills on the Private Calendar.
  Mr. Louis C. Cramton, of Michigan, moved that the Committee of the 
Whole House proceed to the consideration of bills reported from the 
Committee on Claims.
  Mr. Frank L. Greene, of Vermont, moved as a substitute that the 
committee proceed to consider the bill (S. 2867) to authorize 
retirement of Major General Crowder as a lieutenant general.
  Mr. Cramton made the point of order that on this day a motion to 
consider bills reported by the Committee on Claims was preferential.
  The Chairman \2\ held:

  The Chair sustains that point of order. It is clear that the 
preference is intended to be given to the Committee on Claims to-day, 
and the gentleman from Michigan has made the preferential motion that 
bills from that committee be considered, and that motion is not in 
order.

  The question being taken by tellers on the motion to proceed to 
consideration of bills reported from the Committee on Claims, the 
Chairman announced:

  On this vote the tellers report that the ayes are 110, the noes 109. 
The Chair votes in the negative; the ayes are 110, the noes, 110, the 
noes have it, and the motion is lost.

  Mr. Cramton made the point of order that the Chairman has not passed 
between the tellers and was not entitled to vote to make a tie.
  Mr. James R. Mann, of Illinois, in discussing the point of order 
said:

  The Chair announced the result of the vote by tellers, and did not 
declare whether the affirmative or negative had it. But I doubt whether 
the Chair is authorized to vote without passing between the tellers, 
except in case of a tie vote. The Chair in case of a tie vote, where he 
has not passed between the tellers, has the right to vote in the 
affirmative in order to carry a proposition. But in this case there was 
no tie vote. I do not recall whether there is any precedent on the 
subject, but barring a precedent, certainly it seems the Chair could 
have come down and passed between the tellers by calling somebody else 
to the chair.

  The Chairman ruled:

  The Chair thinks, reasoning by analogy, that if the Chair can vote on 
a tie, he should be permitted to vote to make a tie, which would be 
equivalent to breaking a tie since it would change the result. But the 
Chair will examine the precedents, and, if wrong, will recall his vote. 
The present occupant of the chair wishes to rule and vote only in 
accordance with the rules of the
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  \1\ Third session Sixty-sixth Congress, Record, p. 3415.
  \2\ John Q. Tilson, of Connecticut, Chairman.
Sec. 3101
House and the precedents. [After a pause.] The only precedent the Chair 
is able to find in the very brief time at his disposal is the 
following. It is very brief, and the Chair will read it in full:
  ``5997. Hinds' Precedents. On February 18, 1904, the fortifications 
appropriation bill was under consideration in Committee of the Whole 
House on the state of the Union when Mr. Choice B. Randell, of Texas, 
proposed an amendment and a vote thereon was ordered by tellers.
  ``The tellers reported--ayes 79, noes 78.
  ``Thereupon the Chairman announced that he voted in the negative; 
that the ayes were 79 and the noes 79, and that the amendment was 
disagreed to.''
  This is the precedent that the Chair finds. The Chair overrules the 
point of order.

  3101. The Chairman may be counted on a vote by tellers without 
passing between the tellers.
  It is within the discretion of the Chairman as to whether he will 
vacate the chair on an appeal from his decision.
  On January 12, 1927,\1\ while the independent office appropriation 
bill was being considered in the Committee of the Whole House on the 
state of the Union, Mr. John McDuffie, of Alabama, offered an amendment 
authorizing the use of $5,000,000 for expenses of the United States 
Shipping Board Emergency Fleet Corporation.
  The vote being taken on agreeing to the amendment, on a division, the 
yeas were 62 and the nays were 70.
  Mr. Duffie having demanded tellers, the Chairman \2\ announced the 
result of the vote as follows:

  On this vote the tellers report, ayes 79, noes 78. The Chair votes 
``No,'' making the vote a tie, and the amendment is therefore rejected.

  Mr. Tom Connally, of Texas, made the point of order that the Chairman 
had not passed between the tellers and could not be counted.
  The Chairman overruled the point of order and read the following 
excerpt from section 5996 of Hinds' Precedents:

  On February 14, 1901, while the sundry civil appropriation bill was 
under consideration in Committee of the Whole House on the state of the 
Union, a vote was taken on an amendment proposed by Mr. James D. 
Richardson, of Tennessee, and relating to certain payments on account 
of the old customhouse in New York City.
  On a division, there being ayes 75, noes 75, Mr. Richardson demanded 
tellers, which were ordered.
  Before the announcement of the vote by tellers the Chairman announced 
that he would like to be considered as having gone between the tellers. 
Thereupon he announced the result, ayes 92, noes 92, and that the 
amendment was lost.

  On appeal from the decision of the Chair, Mr. Connally argued:

  I submit that the precedent which the Chair submitted does not cover 
this case. If the chairman of the committee this afternoon, as was done 
in the precedent which he cited, had announced prior to the 
announcement of the vote he desired to be considered as passing between 
the tellers, I am sure no gentleman on this side of the aisle and none 
on that side of the aisle would have objected to the Chairman being 
considered as having passed between the tellers. That is not the case 
here at all.
  After the Members had passed between the tellers and after the 
tellers had announced the vote by which this amendment was adopted by 
one vote, after the book had been closed, after the record had been 
made, the Chairman arbitrarily, without asking the consent of the 
committee that
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  \1\ Second session, Sixty-ninth Congress, Record, pp. 1528, 1530.
  \2\ James T. Begg, of Ohio, Chairman.
                                                            Sec. 3102
he be considered as having passed between the tellers and without 
physically having passed between the tellers, from his place assumed 
the right to say that he would vote in derogation of the custom of this 
House, which provides that he must pass between the tellers or have 
consent of the committee to be considered as having passed between the 
tellers.

  Mr. John Q. Tilson, of Connecticut, said in opposition:

  Mr. Chairman, no one has been able to cite a precedent on the other 
side; but let us for a moment reason by analogy. The Chairman is a 
Member of this body. He has a right to have his vote cast in case it 
will be decisive. There would be no occasion for him to cast it, no 
reason why he should leave the rostrum to vote unless his vote is 
decisive. Then, why require him to leave his post of duty at all? On 
this vote taken by tellers the noes were one short. The Chairman, being 
a Member of this body and entitled to vote, voted in the negative, 
thereby making a tie which, under the rules of the House, defeats the 
amendment.

  The Chairman is putting the question on the appeal said:

  The Chair feels that it is only fair to make a statement as the Chair 
understands the conditions as they happened. On the vote by tellers 
after all present had passed between the tellers who cared to pass 
between them, and the tellers had reported to the Chair, the Chair made 
the statement--
  ``On this vote the tellers report--ayes 79, noes 78. The Chair votes 
in the negative, making the vote a tie, and the amendment is, 
therefore, rejected.''
  To that announcement the gentleman from Texas made the point of 
order. The Chair overruled the point of order. The gentleman from Texas 
appealed from the decision of the Chair.
  The question now, is, Shall the decision of the Chair stand as the 
judgment of the committee?

  Mr. Connally, as a parliamentary inquiry, asked:

  Mr. Chairman, a parliamentary inquiry. Do not the rules require that 
the chairman vacate the chair when there is an appeal from his 
decision?

  The Chairman replied:

  They do not.

  The question being taken, on a division, the yeas were 113, nays 82, 
and the decision of the Chair stood as the judgment of the committee.
  3102. A Member having requested tellers is not thereby precluded from 
demanding a division.
  On April 11, 1924,\1\ during consideration of the bill H. R. 7995, 
the immigration bill, in the Committee of the Whole House on the state 
of the Union, the Chairman \2\ put the question on agreeing to an 
amendment offered by Mr. Hamilton Fish, Jr., of New York.
  The vote being taken, the Chairman announced that the noes seemed to 
have it, when Mr. Fish requested tellers.
  A sufficient number of Members failing to support the request for 
tellers, Mr. Fish then demanded a division on the question.
  Mr. Albert Johnson, of Washington, made the point of order that the 
demand for a division came too late after tellers had been requested 
and refused.
  The Chairman said tentatively:

  A viva voce vote had been taken on the amendment offered by the 
gentleman from New York. The Chair declared the amendment lost. 
Whereupon the gentleman from New York asked for tellers. On a demand 
for tellers, tellers are not ordered unless the demand is supported by 
20
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  \1\ First session, Sixty-eighth Congress, Record, p. 6141.
  \2\ Everett Sanders, of Indiana, Chairman.
Sec. 3103
Members. There was not a sufficient number rising to order tellers. The 
question that is presented here is whether a demand for tellers having 
been made the proceedings have elapsed so that the gentleman from New 
York loses his right to demand a division. The Chair is of the opinion 
that the gentleman from New York at the time that a demand for tellers 
was made was entitled to a division, and that that request for a 
division would have had precedence of a demand for tellers. The 
gentleman from New York not having demanded a division then, and 
subsequent proceedings having occurred, the Chair is of the opinion 
that it then is too late to demand a division. The Chair is of that 
notion, but being a novel question, if any gentleman desires to discuss 
the matter, the Chair will be very glad to hear him.

  Mr. John Q. Tilson, of Connecticut, took issue with this position and 
said:

  Mr. Chairman, this is an important matter, and if the Chair has no 
precedent that controls, I should like to be heard. It is clear that a 
viva voce vote having been taken there exists a right to have a 
division. Any one Member can demand a division, and it must be granted 
to him. The demand for tellers is a higher demand, or at least it is a 
more accurate method of taking the vote. Tellers having been asked for 
and refused, it does not seem to me that a Member should be deprived of 
his right to demand a division. If it were so that he could be deprived 
of it by some one demanding tellers and then voting down the demand, 
the Member would be deprived altogether of his right to a division. It 
seeks to me that this might lead to a practice of tellers being asked 
for and refused thereby defeating the right to even a division, with 
the result that a vote might be decided without an opportunity for 
determining its accuracy otherwise than by a viva voce vote.

  The Chairman ruled:

  At first blush the Chair was of opinion that failure by the gentleman 
from New York to demand a division at the time, and to at least have it 
pending, was a waiver of his right to later demand it. The precedent in 
Volume V, section 5998, is not quite in point, but it comes very near 
it. In that case there was a demand for tellers and another Member 
demanded the yeas and nays. The yeas and nays were refused. The Chair 
then held that the pending demand for tellers was not obliterated by 
the failure to get the yeas and nays. In the present case there was no 
demand pending for a division. However, this seems to be a novel 
question, and the Chair is not going to follow his first-blush opinion 
but is going to follow the suggestions later made and not deprive the 
Member of the right to a definite division upon his amendment. The 
Chair overrules the point of order.

  3103. A demand for tellers or for a division is not precluded by the 
fact that the yeas and nays have been demanded and refused.
  On March 3, 1937,\1\ Mr. Bertrand H. Snell, of New York, from the 
Committee on Rules, reported the resolution (H. Res. 454) providing for 
the consideration of the joint resolution (S. J. Res. 152) amending the 
immigration act of 1924.
  During consideration of the resolution Mr. Finis J. Garrett, of 
Tennessee, made the point of order that there was not a quorum present, 
and a quorum not being present, a call of the House was ordered.
  The roll was called and 289 Members having answered to their names, a 
quorum, Mr. Snell moved to dispense with further proceedings under the 
call.
  Mr. Garrett demanded the yeas and nays.
  The question of ordering the yeas and nays having been submitted to 
the House, the Speaker \2\ announced that not a sufficient number had 
risen and the request for the yeas and nays was refused.
  Mr. Garrett thereupon demanded a division on the question of 
dispensing with further proceedings under the call of the House.
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  \1\ Second session Sixty-ninth Congress, Record, p. 56538.
  \2\ Nicholas Longworth, of Ohio, Speaker.
                                                            Sec. 3104
  Mr. Snell made the point of order that the yeas and nays having been 
requested and refused it was too late to ask for a division on the 
question.
  The Speaker overruled the point of order and said:

  The Chair simply announced that not a sufficient number had risen to 
order the yeas and nays. The Chair thinks that in the absence of any 
rule stating the order in which division on various questions may be 
called for, it would still be in order to demand a division.

  The House divided, and the yeas were 110, noes 42.
  Mr. Garrett asked for tellers.
  Mr. Snell submitted the point of order that the request for tellers 
was not in order.
  The Speaker ruled:

  The chair thinks that even at this stage one-fifth of those present, 
a quorum, can demand tellers. As many as favor taking this vote by 
tellers will rise and stand until they are counted. [After counting.] 
Forty-eight gentlemen have risen, a sufficient number.

  3104. The right to demand tellers is not prejudiced by the fact that 
a point of no quorum has been made against a division of the question 
on which tellers are requested.
  On December 13, 1917,\1\ the post-office appropriation bill was under 
consideration in the Committee of the Whole House on the state of the 
Union.
  On an amendment proposed by Mr. Halvor Steenerson, of Minnesota, 
limiting salary payments to persons appointed under the civil service, 
on a division, the yeas were 25 and the nays were 22.
  Mr. William E. Cox, of Indiana, made the point of order that there 
was not a quorum present, but while the Chairman was counting to 
ascertain the presence of a quorum, withdrew the point of no quorum and 
requested tellers on the vote.
  Mr. William H. Stafford, of Wisconsin, raised the question of order 
that the point of no quorum was an intervention of such business as 
would preclude a demand for tellers.
  The Chairman \2\ overruled the point of order and said:

  It is a very common occurrence here that when a point of no quorum is 
made tellers are demanded, and the Chair understood that was done in 
this case. The Chair will count. [After counting.] Twenty-five 
gentlemen have demanded tellers--a sufficient number for tellers on the 
vote.

  3105 There is no appeal from the count by the chair of the number 
rising to demand tellers.
  On April 27, 1933,\3\ the Committee of the Whole House on the state 
of the Union was considering the bill (H. R. 5240), providing for loans 
to home owners, when Mr. Robert L. Bacon, of New York, offered an 
amendment increasing the limit of valuation of homesteads affected by 
the bill.
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  \1\ Second session Sixty-fifth Congress, Record, p. 270.
  \2\ Scott Ferris, of Oklahoma, Chairman.
  \3\ First session Seventy-third Congress, Record, p. 2490.
Sec. 3106
  The question being taken on agreeing to the amendment, and tellers 
being demanded, the Chairman \1\ announced:

  Twelve Members have risen, not a sufficient number, and tellers are 
refused.

  Mr. John J. Boylan, of New York, rising to a parliamentary inquiry, 
submitted that a sufficient number had risen to order tellers and 
proposed to appeal from the count of the Chair.
  Mr. Edward W. Goss, of Connecticut, made the point of order that an 
appeal from the count of the Chair was not in order.
  The Chairman sustained the point of order.
  3106. The rule provides that on an election by ballot a majority 
shall be required to elect, and, if necessary, ballots shall be 
repeated until a majority be obtained.
  In balloting in early years of the House there was uncertainty as to 
treatment of blanks, but later a rule established the principle that 
they should not be considered as votes.
  Recent history and present form of Rule XXXIX.
  Rule XXXIX provides:

  In all cases of ballot a majority of the votes given shall be 
necessary to an election, and where there shall not be such a majority 
on the first ballot the ballots shall be repeated until a majority be 
obtained; and in all balloting blanks shall be rejected and not taken 
into the count in enumeration of votes or reported by the tellers.

  This rule, formerly known as Rule XL, retained the form adopted in 
1880 until the revision of 1911,\2\ when a provision which it carried 
at that time excepting its application in the election of committees 
was omitted to conform to the change in the method of selection of 
committees. The rule was also transposed at that time, becoming Rule 
XXXIX.
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  \1\ Fritz G. Lanham, of Texas, Chairman.
  \2\ First session Sixty-second Congress, Record, pp. 20, 80.