Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1868-08-14
'''' ''7o' COLUMBUS, o. FRIDAY MORNING,

The minority of the committee, in their
anxiety to escape this inevitable result and
cypher out taoo majority for Jones, have.
as shown by their own figures. been com
PEELED to set up claim to nine illegal votes.
as cast for Mr.. Onderdonko about four of
which, not question could be raised, and if
even five of these votes were, for the sake
OF argument, excluded, OnderdOnk's ma
IJority would still be touo. Verify small
outcome to Mr.. Jones' notice thaetwo hum
dred illegal votes were polled for Mr. On,
derdonk, and the newspaper outcry that
the ballot-boxes in the Gallia Senatorial
District were stuffed with the votes of de.
serters and rebels from Kentucky and West
Virginia. Out of the eight thousand votes
cast tor him, after the most diligent search
and taking of ex parte testimony for two
months in the four counties, only fifty-six
of these votes are disputed in any way, and
not half are proved illegal, which would
give only three and a half illegal votes in
each thousand. On the other hand, forty-s
two palpaSly Illegal votes of persons hav-
ing a distinct and visible admixture OF
African blood are polled for Homer c.
Jones, under color of a decision of your
Supreme Court multiplying the word sohite in
the Constitution of the State. This is1the
rugged issue, and there will be no hesitancy,
on our part in meeting it. In the argu-
ment before the committee. contestants
counsel claimed ,twenty-seven of these
votes as having q prepOpderance of black
blood, and the Attorney General admitted
that If all having distinct and visible ad>.
mixture of African blood were held to be
illegal, then the case was clearly against
| II the testimony in Gallia and Meigs
counties is rejected, then Onderdonk, per-
hapS, might claim the seat under the rule
OF prepOnderance,- but it is our purpose to
argue here no such issue. " ..la 50 sS7
! The Senate, by the Constitution of Ohio,
/ Art. 2, sec. 6, being the sole judge of the
election returns and qualifications of its
members, must judicially decide the inter-
probation of the word white" in this case,
irrespective of the decision OF the Supreme
Court OF the State, giving to it. only such
weight and authority as it may be entitled
| to as precedent. This position is fully
conceded in the argument for Jones by
Attorney General West, and thelegislative
history of the State shows this rule to have
been well settled. In the Ashland contested
election case, Cary VS.. Larwill, In the Ohio
| House of Representatives, involving the
constitutionality of the Soldiers Voting
law, when Mr.. Dresel, on the Goth of JAN
uary. 1854, moved to lay the report of the
committee of Elections on the table to be
printed, and Mr.. Putnam held that it would
be proper to await the decision of the Su-
preme Court upon the cOnstitutionality of
the Soldiers Voting law. See Cincinnati
Enquirer of January %, 1864. In reply MIR.
Delano took the ground, that as the House
was the judge of the election of its MEM
bers, whatever opinion another branch of
the Government gave as to such elections,
did not affect the right OF the
members of the House to decide
it for themselves. Hence, he thou ght
it proper to argue the constitutionality of
the soldiers voting law in that body, it
being pertinent to the contest under COM
sideration" see Cincinnati Gazette, January
81, 1854, and the House Immediately pro-
ceeded to act upon the case. In Baldwin
VS.. Trowbridge, contested election case
from Michigan, February Is. 1866, it ap-
pears that both Congress and the Legisla-
ture OF Michigan overruled the opinion of
the Supreme Court of that State against the
constitutionality of the soldiers voting
law, as unanimously rendered by the Re-
publican judges in Twitchett VS.. Blodgett,
18th Michigan Reports, PIP. 127 to 1885,.
Messrs. Dawes, Scofield, Shellabarger, Bax-
ter and Upson were on the committee of
Elections which sanctioned this ruling. 1t
seems further from the speech of Mr.
Trowbridge, the Radical sitting member,
that after the supreme Court, composed
entirely OF Radical judges, decided she SOL
diers' voting law unconstitutional, the Leg
islature of Michigan admitted to seats the
members elected by the soldiers vote and
subsequently, wnen the constitutionality of
law (Detroit. police act), passed in the
Legislature by these very votes, was
brought before the same court in the case
OF the People VS.. Mahany, 18th Michigan
Reports, p. 4Sl, the court held that in con-
tested elections the Constitution ssconfers
upon the House powers of judicial nature,
in the exercise of which Its decisions is
conclusive, and'not subject to review of the
courts" See citations in Cong. Globe, 1st ses.
80 Cong, Part l, 1866, PIP. Sl4, $40. S45
This case is so much in point that the
learned Attorney General cannot gainsay
it, and is further strengthened by the rule
laid down in Cushing's Law and Practice
of Legislative Assemblies ssThus the As
sembly is the judge of the election of its
members, and may consequently, for that
purpose, decide upon the right of an elector
to vote; but, notwithstanding an elector,
| whose vote has been refused by the return
ing officers, may also bring his action
against them for damages for such refusal,
and for that purpose may establish his
right to vote at law, though the Assembly
may have decided otherwise in determining
the election" p. 257, par. 64S. -lH-
1t being settled that the Senate mustju-
dicially decide whether persons having a
visible admixture of African blood are
white male citizens of the United States,
and consequently electors in this State,
what weight has the decision of our Su.
preme Court, that a preponderance ofwhite
blood makes man white? In Anderson
vs.. Milliken, 9th Ohio State Rep, p. 56S,
the court. through Judge Gholsen, held
that preponderance of white blood made
man white for the purpose of voting on
the authority of the decisions of the Su-
preme Court under the old Constitu-
ton; and yet at the same term the
same court held that children hav-
| ing a preponderance of white blood
"are not white in the ordinary,
if they are in the legal sense white" Van
Camp VS.. Board OF Education of Logan,
9th Ohio, s. r. p. All, and therefore cannot
be admitted into the common schools Or
ganized for white children-thus overruling
the VERY decisions of the Supreme Court
OH that subject under the old constitution,
which they cited to sustain their first decis-
ion, as clearly demonstrated by Judge SUIT
cliff in his dissenting opinion. The old
Court, If wrong in its decisions, had at
least the merit of consistency, for if per-
son is white for one purpose, he is SO for all.
The monstrous absurdity of holding that a
man, ,having mere preponderance ofwhite
blood, can vote as white man, but that his
children by quadroon woman, who are
whittier than he, are not white, is too obvious
for comment. There is no foundation In
the attempt of the Court to escape this di-
lemma by hair-splittiDg distinction be-
tween the word "colored," in the school
law of 1853, and the words "black," or
]" mulatto," in the school laws of 1s4S9
especially as it is provided in the 9Th Sec
tion of the act of 49, "that the term coll
ored, as used in this act, shall be construed
as being OF the same Specification as the
term black or mulatto,' as used in for
mer acts." A legislative construction
of the swords "black and mulatto," as in
cluding all persons not white-a common
sense use of the language, which, if it had
been followed by the old court, would have
relieved us of the absurdity of using Ian
guage to mean one thing legally, and another
in its ordinary sense. .z..--..
The change of language in the Constitu-