Wheeling times and advertiser. [volume] (Wheeling, Va. [W. Va.]) 1839-1849, 1848-10-10
SeCv oi Tom.
SHERRARD CLENtNs, ESQ. Wheeling Va,
OPINION FOB THE EXECUTIVE.

| SHEkRARD CLENTNs, Esq. w heelhg Va
OPINION FOR THE EXECUTIVE.
The Executive of Virginia has
referred to me letter from Sherrsrd Clem-
ems one Of the Commissioners to conduct ihe
Presidential election in The county of ONO;
in which lettertwo questions are proPoundeo'
The questions are
LIST. Can the Commissioners nor under our
law keep the polls OPEN or adjourn the taking
of the votes for three days forany cause what
ever; or must the votes be all taken on the
Tuesday designated BY The act Of Congress, or
be not received atall
ID Can he who offers to vote, merely as
tax payer, and head OF family, vote unless
he has paid the State ak Of lS47 with which
he was assessed, and ;hat in the county where
he offers to vote7
My opinion has been requested on these
questions.
The 4ih of the 2nd article OF the Consi-
tuCion or The United S,~t4s i IN these verbs;
"Ths Congress may determine The time Of
choosing the electors; and the day on which
they shall give their votes; which day shall be
uniform throughout the United States"
In pursuance of the first branch OF this sec
ton Congress, on the 23d of January, lSi5
passed the following law:
That the electors of President and Vice
President shall be appointed in each State on
the Tuesday next after the first Monday in
the month OF November, of ;he year in which
they are to be appointed; ProUidcd, That each
State NAV By law provide for the filling OF
any vacancy or vacancies which may occur IN
its college OF electors when such college meets
TO give its electoral vote, aud Provided also,
when any State shall have held an election for
the purpose OF choosing electors and shall
fail TO make a choice on the day aforesaid,
then the electors may be appointed on sub
sequent day in such manner as the Stale shall
by law provide"
Since the passage of this law the legisla
ture of Virginia has not acted on this subject.
The election in this State must therefore be
held under the act OF assembly Of the 18th OF
Feb'y lS44, modified by the act OF Congress
above quoted.
The act OF 18th Feb'y, l844, contains the
following provision, (see the Sessions acts OF
1884,, page 2S.) al it shall appear to the
said commissioners that many persons emit
tied to vote were prevented from attending by
bad weather or any other cause, they are here
BY empowered and required TO keep the poles
upon for three days including the first day"
The first question propounded is, can the
commissioners now under our law keep the
poles open three days?
The Section OF the Constitution of the u
nited States above quoted, coniers on Congress
the power to determine the time OF choosing
the electors The act OF Congress OF the 23d
OF Jan'y, 1915, being passed in pursuance of
that section is the paramount law OF the cleo
ton so lar as its provisions extend. 1t must
control the election, aud repeal Inc State law
so tar as il is inconsistent with it.
The question then is, whether the power 10
keep open the polls Tor three days including
the first day is Inconsistent with the act of
tCongress which directs the election to be held
on the Tuesday next after the first Monday
&c?
think it is inconsistent with the act of
Congress in this respect.
The act of Congress enacts that the electors
shall be appointed on the Tuesday &c
The enactment that the electors shall be
appointed on Tuesday, necessarily imports
that the election shall be completed on that
day, for the word appointed when applied TO
the popular votes means elected. II then the
election is TO be completed on that day it is
inconsistent TO say, the polls may be kept O.
pen for the two following days. To keep open
the polls for three days under our act, would
be TO appoint the electors on those three days,
instead of the one day directed by the act of
Congress.
But think keeping open the polls for three
days would be inconsistent with the design of
the act of Congress. The design OF that act
was, by holding the election on one day
throughout the Union to prevent the citizens
OF contiguous States, voting in two or more
States. This design would be as fully defea-
ted by keeping open the polls for three days,
as by voting on separate days. The proviso
in the act that when any State shall have held
an election &c, and shall fail to make choice of
electors on the day aforesaid, then the elcctoIs
may be appointed on a subsequent day in such
manner as the State shall by law provide, is
not inconsistent with the construction OF the
act OF Congress above given. The object Of
that proviso is chiefly to enable those States
which require majority OF votes to elect
President, to provide for an election il no tick
ct obtains majority.
think this section is not only inconss-
tent with, but furnishes a strong argument TO
sustain the construction have given the act
of Congress.
The proyiso in its terms contemplate an
election on one day.; it looks TO the possible
failure on that day, and provides that such
failure may be remedied by an appointment
on subs 'quent day in such a manner as the
Stat eby law may provide. The ascertain
ment ola failure to elect on the day designated
by the act OF Congress is manilesty to BE- the
act OF State authorities which may compare
the whole returns and not the act OF commits
sioners 10 superin,cnd one precinct election
in one or noreoi the numerous count les of
State. The remedy tor such failure is in the
hands oil the legislature OF the State aud not
IN the hands OF precinct Commissioners.