Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1873-11-18
The Membership Of West Virginia in
the next Congress-.
From che Wheeling Intellioe,cer /

GA0 uoAt OUuSreSSs
from che Wheeling Intelligencerl
The Lower House of the Legislature at
Charleston has passed bill reauirinp the Ell,
ecutiye officers of the State to certify to the cleo
ton of the members of the next House of Rem.
resentatives at Washington, from the several
districts of this State. Up to this time the
Governor has declined to certify to nybody's
election as member from any one of the
three districts of the State, because of the fact
that two elections were held throughout the
State and two sets of claimants are in the field
One election was held on the fourth Thursday
of August, 1872, at the time the new Con.
st'tutlon was voted on, and the other was held
on the regular day prescribed in the Code.
VIZ; the fourth Thursday of October, 1871.
NOW, the question is, who of these claims
ants are entitled to seats in Congress. those
elected in August. or those elected in October2
In this Congressional district the Hon.
John J. Davis and the Hon. Ben. Wilson
were Candidates at the August election. and
the for mer received majority of the votes
csst. AT the October election MIR. Davis de-
chned TO run again, taking the ground that
he was already elected at the August election.
The Hon Ben. Wilson, however, conclude a
t. run once more, as he had not been suf.
fciently elected as yet. So he had the field
all to himself in October, and was of course
duly and unanimously elected.
The Constitution of the United States nre.
scribes in section i of article LIST, as follows
in regard to elections for members of Con.
gress:
The times, places and manner of holding
elections for Senators and Representatives
shall be prescribed in each State ly the Lea>
's|a'ure thereof; but the Congress may at
any time by law make or alter such resula.
tions except as to the places of choosing
Senators"
This is all the provision there is in the
Constitution of the Unoted States bearing on
the election of members of Congress in the
different States The time. place and mans
per" is left to each State Legislature to pre>
scribe. and the words are that said time place
and manner ''s1aH'b be prescribed" by the said
legislatures.
The Constitution Of West Virginia pro.
vided in the 7th clause of its scl,eiafe for
general election on the 4th Thursday of Au
gust 1872 @for Senator'S and members of she
House of Delegates, and all officers executive.
judicial county district, required by this
Constitution to be elected by the people,"
Nothing is said in this clause about an elcc-
ton for members of Congress. n member Of
Congress does not come under The head of an
executive, judicial, county OF distrc, officer
of the State Of West Virginia. He is not an
officer OF the State at all. The clause pro-
vides for the election of every class of candi-
dates who are ever voted for by the people of
West Virgipia except members of CONGRESS-,
They omitted from the euumeration-
Why? Because perhaps the trainers of the
new Constitution did not consider that thew
had the power to prescribe the "time. place
and manner" of holding elections for mems
bers of Congress, that power having been as.
signed already in express terms by the Con-
stitution of the United States to LEGISLATURES
not Constitutional Conventions. of the various
States. The legislative provisions in existence
at the time in this State are found on page
A, section and 2 of the Code as follows:
l. 1.-The general elections for State, district,
county and township officers. and members Of
the Legislature shall be held on the 4th
Thursday of October.
2. cat said election in every year there
shall be elected delegates to the Legislature,
aud one Senator for every senatorial district.
And in the year 1870 and every second year
thereafter, a Governor, Secretary of State,
Treasurer, Auditor and Aattorney General
Tor the State, Prosecuting Attorney, Sur,
vcyor Of Land, Recorder, and the number of
assessors prescribed by law, and a represen>
tative in The Congress OF The United States,
for the term beginning on the 4th day of
March next after the election, for every Con.
gressional district
T" US this provision of the code seems con-
elusive because it is in accord with the nan>
datory provision of the Constitution of the
United States on the subject We do not
see how the provision is to be ignored Unless
upon the ground that it ceased to be operative
ceased. in other words, to be law, after the
adoption of the new Constitution of the State.
But this view is met with clause In the
schedule which expressly says that the cleo,
ton to be held on the 18th Thursday of Au>
gust Shall be conducted in all things ac-
cording to the provisions of the Code of West
Virginia, and the amendments thereto gov
erning elections, ercept as herein otherwise
prouiaed"
The exceptions thus provided for are those
We have already quoted from the new Cons
st'tution, such as the election for members of
the Legislature and of all executive judicial,
county and district officers. And even if this
clause perpetuating the force and effect of the
provision OF the Code on the subject was not
in our Constitution at all, yet we do not see
how the Constitution of the United States
could be got rid of 1t of course takes pre-
cedenee over both the Constitutions and the laws
OF West Virginia, and they must be construed
to conform to it, whether they conflict with
each other or not. This positive necessity,
together with the fact that the trainers of the
new Constitution while providing for the cleo
ton of all other officials did not provide for
an election for members of Congress. is very
strong evidence that no legal election for said
members could take place at the August cleo,
tions and that therefore the riehsful members
elect are those who were voted for at the Oc-
tobes election las. year.