New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1864-06-22


some manner provided In its tenuic. Tie mere tI-
polntment election 10 one Office unmt comp panied WIN
consent or acceptance cannot i"fce man on, OF az ~
fee he alreany holds. Anciently il was tried In Nm
gland. man who was town clerk was elected hldrr'
without his ut ~ order a. tn'n him ont m MS
former Office thes being Incompatible. ard theieupoh
he prayed writ II restitution u the office OF toxin
clerk which was granted. dyer 30, IN tue notes.
So that consent and acceptance crete tie vacancy
And Wicock. In his Treat.se upon Municipal Cnrpoia
tjonr before cited states that the election ~ ncrrp
m ncompahc Office does not yncac The former bclofc
acceptance by the officer (p 2Io. In this country,
Angel q Ames on Corporations (sec 434) adopt this
same language aud incorporate II into The text oil TIER
TREATISE In Wbiin,y agt. Canque, hetrc cited g l.h
90 the doctrine Is clearly st ted IN Tie oiowa
words: The appointment OF person u see"nn az
fee incon patibe nth the first not absolutely Voiu
but on lis subsequently accepting the appointment and
quaiifyiAe tie first Office is .pso Jao'o v'caied Anu
Mr. Gushing IN bis Law and Pr ,ctice OF Leg'sat'e
Assemblies (sec 40 lays down the same rule ~ s,it
ing case which n the converse oil Tie oie in
tbs reference He SAWS II may liz c"n-,dcrod as !"
Tue founded the Of the thing and correspond.
ing with the actlcc as Tar ns II kh""n "i u o
legislative ass brs that in order To vacie TIE seat
Of A member by the acceptance OF the dl-qunlylhE or
Incompatible Office the election or nppointment thereto
alone Is no. sufficient buI the member mus e.iher nave
sirHinpd hir acceptance of tie Office IN "a frbh MAJ
nef or hsse doue what IL Incumbent on nim ~ dislni
~ lin TO dscargc lis duties or have actually ehe'ed
upon It's discharge"
But the Honse Of Representatives has been called
npou heretofore 10 decide ills y,ry question ~ oet'
Der 1916 samuel Hcrrick. wio WIS then holding the
office of United states District Attorney for TIE dis.
let of OHIO was elected II the Representatives ~
that ate IN the 18th Congress whose regular aessn
did TIL one yerr from the December ioi
lowing MI. lirrick continued 10 hold The oiice ~
United States District Attorney ulti Nov. ~. iel7.
vhrn he resigned that office and entered upon the
dunes Of the Office OF Representative ~ COM ~ AZ be
commencement Of the regular session on the hrs Mon
day II the following month. Upon proper reference
tn the Committee oi Elections az e burHc report vas
made in formty with tie views her taken and con-
Guiding With n resolution that samnd Hrrrick
Is entii Ell 10 seat IN tbs House." Contested Elcc
tions IN Cong. D. 2s7) 1Lis report wa yey fully and
ably discussed aud doubts 10 have ncen NJ
first uiefaincd whether by dscaiging Ihe duties of
the Office Of United States Dstlci Att They Willie lie
was KeprrscrLatve elect, Mr. Hrriick bad not dis
qnaihed himself from holding the Office Of Represents.
lye. Tie resolution confirming him In his seat vas
nevertheless adopted. Its positions were subsequently,
ratified hy to same Congress IN two three other
involving the same pri cplrs. with lii'ic or 10
opposition And II u believed tat the pr etiee 81 the
House frUm that time 70 the present has been uniformly
In conformity with this position Tic common Law bias
been shown to b. thui the election aone 10 81 IN
compatible -" viii not ,acnte one airrndy held Tie
language ID, Constitution Is I at " 10 person hold
ing any Office nder the United States ,LGN b. aSahor
of either HO. during bis continuance In Office. The
words are slHll be- nSfsbsr. not shall De- IL ctd.
No one can BE- made "mrmh. r agan.t his Viii flo
may DO elcisd tboui his consent OF knowledge Tor he
mas De In foreign land. hut IL heroine member
he must net only be elected but he must take The oath
OF Office. !nc Constitution says; Each House shau
BE- tie Judge u the eetony returns md QUO Elections
God aud taken their seats. Agnif; 4 maJ lrty of
each shall %. rt!tuie quorum. bat smaller number
may adjourn fiom day 10 gay. and NAV b" sur>ed TO
compel tie attendance uf absent -rmbtrs But the Mt
tendeDce Of Representative eject never Yet com.
peeled. Aud. agniu. Ench House nny dctfmine the
rus II IT, proceedings punish IT. n'rb FOR di'ord,r
~ behavior. auh. with the concurrence n tEohirds.
expel merb,r." The Committee not aware Of any
attempt To punish n Representative elect, snd II but
one Hstinee 81 an attempt 10 cxP'l ore resolution
adopted 10y the last House. under tie rrrvnns question:
. n
elect. but haa never siguiiSd lis nrcrlta ee -
he Office or qualified, or ele1 Hppaird ~ " is g.
ton ioT the purpose ~ taking he seat. But when
the Constitution uses tie word "rrpics ntatvr," II II
In tho connection. " The times pncrs. md nler ~
holding elections II Senators and rrsrsfairss u all
be" Be. No person shr BE- r,frss- nfa're 'o sh II
bot have attained H. the age of twenty-five years In
TIE clause now under consideration the lnlu &c -;
Ne person holding any office nndcr o. Unite" STATES
shall be member ~ either lionsc during his cuniuni &c
in ofcc" NO doubts th.t The object OF the oonsti-
tuti0nL Inhibition b. guard TIE orse againt III
ecutiyc inhurnoe This object l. tianrd ~ FIR "a II
he by this pr.v-inn. II the inhibition stachrs the
m"meni tie member enters up'n ih discharge 81 his
1nties rs s1oh and nothing IS easd by "n cartier sP-
phcsiion oft
The Committee are therc'orr. n opinion thu, the
reasons IN which this constitutional prov aiou urlg
innted rs well ns its express language and prnric
~ the House under H. arr 10 runny with IT, ru" of
law which crised before the formato II tie Cons;itn-
ton, that the acceptance aud entering upap thc dis
charge II the duties " An Ollie" which ffu the mat
Of MS duies from express lcg constitutional pro
vacated the former office 'rOm the tire ~ such accept
and entering uIoa The dates assigned 10 the latter
office
And, consequently when a person elected 10 Con.
gfcts ccccpts tha Office. qnnlhrs sud ctrfs upon
tie discharge If rs duties he vacnt's iufcs my
oiice he may tLen hold under { e United STATES. And
ten any member Of C"nCrrss. nitor be har quail
fed or entered upon the discharge ~ his duties a.
,uc member accepts enters upIn the dsrrgc ~ the
duties Of ANY Office under tie United Siaer be- ipso
Jaoo, vaoates or foTfes his seat as member Of Con-
grcSs.
But this record raises another question which, 20 far
The Committee lcarn has not before arisen, md
which u becomes necessary to cxHminr. Mr.. Blair
WIS appointed Biigndi.r General August 1892 aud
NaloT.i"nerai November - 1872 the duties Of which
latter Office he discharged till Janu " lrdt when he
rendered BIZ resignation which vas acrer,ed Junuery
u. isC4. On this latter day be WIS quihicdsand took
Ms seat I'm the House OF Representatives. The fret
regular session ~ the XXXNiiiih Congress. hted by
law. commenced on tie hrt Monday Of Dccrmbcr.
1863. IL therefore alp-rts that Mr. Blair held and
discharged tie duties ~ the office OF Mrl 'irnrr Tor
than month after the commencement Of the ses
sion fixed by lss Of the Congress IN which after resign
ing that Office be subsequently, took his seat Nov. II
the reasoning aTeads submitted, ard the conclusions
which the Committee have drawn heGrfrom, be correct
viz. that the sccspa II M office incompatible with
already - must lie seemed and treated rcsig.
nation ~ the noner then dos IL moi follow thrt The
iinuancc IN the discharge of tie duties Of the former Of
fee after the me az which the law requires the enter
ing upon and discharge ~ the Incompatible duties of
ttc latter must be deemed ard est. "a decinatOn
oi this latter object !. two offices rendered 1T tho
time TO the person. and be Is al liberty Ia
chuO-~ between the two but either the nnurr Il III" Of
fees the requir II the law Constitution. for
bid tho acceptance OF both viii doubt but that
after election between them ID made and the duiirs
Of havo boon entered upon Il is late then to take
the other As both cannot be- taken. the one Is dc.
clned In the acceptance Of the other Does the fact
that the-e two Offices rendered nj the same time
make any difference In the priacipci A man in the
discharge Of the duties " Office s rendered another
whose duties be il required enter upon NJ certain
time bat the functons Of both he cannot perform.
When the time which the duties OF the latter
office commence he Is NJ liberty 10 choose II he takes
the inter. the functions Of the former ipro