The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1872-06-27

with The, election Of Representative id
Congress ip prder. to lsgslize oryslidste
the latter. In other words that though
HE Legislature was bound to designate
. 6nss when the election Of the latter
should take place andip soidoing pre-
scribsd the same day that the Constitu-
ton had fixed for the general election of
State officers, that II in any mode a
change was made 10 the time for the
latter such change NECESSARILY must
apply to the other, also. 1 do not concur
In this view. The Constitution 10 pre-
scribing October aud the fourth Thurs
day thereof for the: day OF election, only
does 30 for State officers. The Act of
1868 carrying out this provision, applies
the same not only to them, but, in
accordance with the Constitution Of the
United States, applies it also to the
election of members Of Congress,
making the same day, as matter OF
convenience, answer both purposes-for
the former because the State Constitu-
ton imperatively fixed that day; for
the latter because they must designate
the time and in 80 doing they seem at
liberty to select any day which would
best suit the people and attain the
desired end. whilst both objects would
be readily attained by the designation
of the same day, yet they were distinct
and severable, and the provision of the
statute should be. | think, looked at and
construed in that light. Strike out or
repeal all of the second paragraph of
section / of Act of 1863 which refers to
State officers, and leave the provision as
to Representatives in Congress, aud
there could be no question that the time
ofelection would be the fourth Thursday
of October, 1872, not because of constitu-
tional provision for general elections Of
State officers-but because Of specified
time designated for another specific pur-
pose, viz: election of representatives in
Congress. Such repeal or striking out
of the part suggested could not be made
by ordinary legislation, because in con-
Hict with the Constitution, but 1t has
been done as to State officers, by the
Schedule annexed to the proposed Con.
stitution, but no further; nor could it
have gone further, without assuming
authority only conferred by the Constl'
tuition of the United States on the
LEGISLATURE. know it may be said that
constitutional power transcends leglsla-
tive, but / hold neither can violate
the Constitution of the United States
or assume to act in derogation Of its
express provisions. Strike out OIL sec
ton 2 of Chapter 3 OF the Code all
which the Schedule by its pro-
visions can exclude, and the same
result follows, viz: that the election
must take place on the fourth Thurs
day in October, unless you are to be
controlled by the first section Of that
Chapter. l cannot think that this Sec
ton can have aoy such influence; it is
nothing more than direct recognition
OF the Constitutional provision as to the
general election for State officers, which
was as strongly and necessarily implied
by the Act Of 1868, and as fully recog-
nized thereby. l hold, therefore, that
the Code does designate q specific time
for the Congressional elections, viz: the
fourth Thursday in October, 1872, and
that in 30 doing they were fulfilling q
Constitutional obligation, and that their
act in this regard, though coupled in
the same statute with provisions for
general election of State otficers-at the
same time, is really distinct and severa-
BILE from the other, applying to
different objects, and their authority to
act emanatiug from entirely different
sources. I hold that as to the election
for State officers, the legislative provis-
ion has been superseded by the Conven-
tionsl Schedule, but only to that
extent, leaving the residue intact ,
uuseparated and in full force. l hold,
further, that if the Conventional action
had gone 20 far as to designate 9 differ
eut time for the Congressional election,
it would not have operated as a repeal
of the legislative authority and action,
because they had no such right; but
the same was in fact inhibited by the
couferriug of the authority upon the
Legislature exclusively. | hold that
the Convention could not do indirectly
what it could not do directly, and there
fore that a Congressional election in
August would be illegal and invalid. l
hold that unless the fourth Thursday OF
October be the time legally designated,
that then no election can be held with.
out further legislation and that no
gubernatorial action can be OF any ben
eft.
| think it would be very unwise for
our friends to submit their election to
the voters in August, as this might in.
volve very serious trouble and difficulty,
in the event of different result in any
case, as might possibly, at least, be the
case. l have thus hurriedly given you
nv views and some of the reasons
therefor. l hope the conclusion reached
from comparison Of opinions may be
sound. am, yours respectfully, e
JNo. T. ALLEN
MARrINsBURG, June %.