The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1872-08-15
CONGRESSIONAL ELECTION.
OpiniOn or Hon. &. j. Faulkner ~
60 the Day for the Congressional
Election. ... a. be-
MARrINsBURG, WEST VA,
- August 5, 1872.

MARrINsBURG, WEST VA,
' August 5, 1872.
Joseph s. DlckVaH. Esq:
DEAR SfR-l received to-day you
favor OF the Sd inst, in which you sub
nit to me the following inquiries
First, Why did not the Convention
when it prescribed a day for genera
election Of State officers under the ney
Constitution, also prescribe Vie day fo
the election of members Of Congress from
this State? Secondly, What, according
to existing law, is the proper and tcya
day, for the election Of members o
Congress in this State?
In answer to your first inquiry,
say, that the State Convention had M
authority to prescribe day for holding
al election for representatives to the
Congress of the United States. This
authority is. by the express Ian guage o.
the fourth section, first article OIL
the Constitution OF the United States
restricted to the Legislatures OF tne
States, and any attempt upon our part
to have usurped such power, would
have been idle and upavailing; it was
subject over which we had no jurls,
diction or control.
| know there are some persons who
have maintained that a State Convento,
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 Legislator" is used ten times
in that instrument, and the word "cOn-
vention," four times. and in a manner
to make the distinctive meaning Of
those words uumistakable. The word
Convention" is used solely in reference
10 framing or ratifying tody OF tunda
mental laws. The word Legislature
is always preceded by the article "the,
rs importing an institution well under
stood, and as designating the ordinary
law making power, and not a couven.
ton or other body. The Federal Con.
stitution says, that Senators shall be
elected by the Legislatures OF the States.
What would be thought OF Contention
that would assume to exercise this
power thus expressly conferred upon the
Legislature2
In reply to your second inquiry,
have already shown you that the Con-
vention, if so disposed, conld not have
changed the day fixed by law for the
election Of representatives to Congress.
We, however, made no attempt to do
so. The schedule, in the most express
and explicit language, restricts the cleo
tons, to be held on the I'D OF August,
exclusively to State officers. The Con-
stitutiou further provides, thirty-sixth
section, eighth article, that the laws Of
this State in force when that Constitu-
ton goes into operation, shall be, and
continue the laws of this State, until
altered or repealed by the Legislature.
Now, the existing law OF this State,
fixes the fourth Thursday IN October as
the day for holding the Congressional
elections. 1t will admittedly, and by
the concurrence Of all persons, be the
proper dgy 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 Constitution is adopted.
Some idea is entertained, that because
the Code OF 1869 fixes the general State
elections on the fourth Thursday in o.
tober, and also fixes the Congressional
elections on the same day with the
State elections. that the schedule, in
changing the day Of the State elections
has imphedly changed the day Of the
Congressional elections; but this would
be to concede to the Convention a
power which it does not possess, as |
have already shown that such would be
the assertion of an authority, beyond the
OF the Convention. 1t could rightiully
change the day for holding the State
elections, but it possessed no power to
change the day prescribed by the Lesis
lature for holding the Congressional
elections, nor has it sought to do so.
am clearly Of the opinion that the only
day upon which, according to to our En-
listing la,0, Congressional election can
be held, will be the fourth Thursday in
October; ard that all votes cast for any
candidate for Congress at the August
elections, will be null and uoid, and
should be rejected by the officers OF the
election, as an illegal interference with
the duties prescribed by law on thai
day.
The argument may be summed up in
these few words: The Federal Constitu
ton gives TO the Legislature the sole au
thority to fix The day for holding the
Congressional election. The Legislature
has exercised that power 10y prescribing
the fourth Thursday in October as IN
day. The Convention had no power tc
change that day, il disposed to do so, bu
it has carefully guarded against all IN.
reference with the exclusive power thu
vested in the Legislature. What, there
fore, is there to impair the force OF th'
cristing law, or to give color to the pre-
tense ola Congressional election in Au
gust A poll might, with just as mucl
propriety,. be opened on that day, for th'
election OF Grant or Greeley to the offic'
of President OF the united States.