Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1872-08-17
Mr.. Faulkner's Opinion.

Faulkner, elected by one from Joseph S. Duck
wall, Esq, Of Morgan. 1t discusses clearly
the question at issue, and upon this opinion,
doubtless, was based the action of the recent
Grafton Convention. The views Of Mr.. F., on
this question, to the credit Of the Spirit, are in
accord with those of that Misunderstanding
the old saw that great minds, &C.;
MARTINsBURe, w. Va, |
Aug. 9Th, 1872.
Jos. s. DUcKwALL, Esq,
Dear Sir: received to-day your
favor Of the Ord inst, in which you submit to
me the two following inquiries First, Why
did not the Convention, when il prescribed a
day for the general election Of state officers
under the New Constitution, alse prescribe the
day for the election Of members Of Congress
from this State? Secondly, What, according
to existing law, is the proper and legal day.
for the election Of members Of Congress in this
State?
In answer to your FIRST inquiry, say, that
the state C0nreHtiOn had no authority to pre-
scribe day for holding an election for repre-
sentatyes to the Congress Of the United States
This authority is, by the express language Of
the fourth section, first article Of the Constitu-
ton Of the United States, restricted to the
Legislatures Of the States, and any attempt
upon our part TO have usurped such power
would have been idle and unavailing it was {
subject over which We had no jurisdiction or
control.
know there are some persons who have
maintained that a State Convention, is for some
purposes, and in the broad sense Of the term, a
LEGISLATURE but this is not the sense in which
that word is used in the Federal Constitution
The word " legislature is used ten times in
that instrument, and the word convention"
four times, and in a manner to make the dis
tnctiye meaning Of those words unmstakable
The word, i" convention is used solely in refer
ence to framing or ratifying body Of funda-
mental laws The word legislature is al
ways preceded by the article the, as import
ing an institution well understood and as
designating the ordinary law making power,
and not a convention or other body. The
Federal Constitution says that senators shall
be elected by the Legislatures Of the States
VIVA. would be thought Of a CoHrORtion that
would assume to exercise this power thus ex-
press!y conferred upon the Legislature;
In reply to your second inquiry, have al
ready shown lou that the Convention, if so
disposed, could not have changed the day fixed
/ by existing law for the election Of representa-
tives to Congress We, however, made no at
tempt to do so. The schedule, in the most
express and explicit language restricts the cleo
tons, to be held on the 22d Of August, exclu-
sively to State officers The Constitution
further provides, thrty-sixth section, eighth
article, that the laws of this State in force
when that Constitution goes into operation,
1 shall be, aud continue, the laws Of this State,
until altered or repealed by the Legislature
Now, the existing law Of this State, fixes the
/ fourth Thursday ia October as the day for
holding the Congressional elections. 1t will
admittedly, and by the concurrence Of all per-
sons, be the proper day if the Constitution is
not adopted and as neither the Constitution
nor schedule at all interferes with or changes
it, it must be the proper day, if the Constitu-
tion is adopted.
Some idea is entertained, that because tho
Code of 1869 fixes the general state elections
on the fourth Thursday in October, and also
fyes the Congressional elections on the same
day with the state elections, that the schedule,
ia changing the day Of the state elections, has
implicitly changed the day Of the Congression-
al elections; but this would be to concede to
the Convention a power which il does not
possess, as 1 have already shown that such
would be the assertion Of an authority be-
yond the power Of the Convention ID could
rightfully change the day for holding the
state elections, but it possessed no power to
change the day prescribed by the Legislature
for holding the Congressional elections, nor
has it sought to do so. am clearly of the
opinion, that the only day upon which, &C
c0rding 10 Our existing lac, a Congressional
election can be held, will be the fourth Thurs
day in October; and that all votes cast for any
candidate for Congress at the August elections,
will be nail and r0id, and should be rejected
by the officers Of election, as au illegal inter-
ference with the duties prescribed by law on
that day.
The argument may be summed up in these
few words; The Federal Constitution gives to
the Legislature the sole authority to fix the
dag for holding the Congressional election
The Legislature has exercised that power by
prescribing the fourth Thursday in October
as DE day. The Convention had no power to
change that dag, if disposed to do so. but it
has carefully guarded against all interference
with the exclusive power thus vested in the
LEGISLATURE. What, therefore, is there to i'm
pair the force Of the erisiiRg lalC, or to give
co.or to the pretense ofa Congressional election
in August? A poll might, with Just as much
propriety, be opened on that day, for the
election Of Grant or Greeley 10 the Office of
President Of the United States.
| am truly yours,
CHAs. j. FAULKNER.