The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-01-07

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last, in many counties under the autharity
OF the Supervisors thereof, for Represen.
tatives in Congress, for the same term
and the returns Of this election were also
certified to me in the usual way. Thus
there are on file In my Office returns Of
two distinct elections for Representatives
in the Congress Of the United States, for
the same term.
By law the Governor Is required, from
the certificates returned to him, TO ascer-
tain and proclaim the result and to issue
certificates to the persons who appear to
have been elected. The power 70 ascer-
tain the result Of an election Of this kind
is generally lodged in a board Of canvass
ers in other States, but In the simplicity
OF our laws this power is here vested IN
the Governor. Consequently there is the
same Limitation upon the powers Of the
Governor in this State IN ascertainiDg and
declaring the result oil an election that
there is In other States upon the powers
Of their boards Of canVOSsers. The gen.
eral principles Of law on this point seem
to be carefully stated by MIR. Cooley in
his constitutional Limitation" page 022.
he SAYS that In ascertainfng and declaring
the result oil an election, boards OF can.
vassers tact for the most part ministerial
" only, and are not vested with judicial
powers to correct the errors and mistakes
that may have occurred with any officer
who preceded them in the performance Of
any duty connected with the election, on
to pass up0n any disputed fact tohtch may
affect the result. Each board Is to receive
the returns transmitted to It, If in due
form, as correct, and Is to ascertain and
declare the result as shown by such re.
turns" IF district or State board OF
canvassers assumes to reject returns
transmitted to it on other grounds than
those appearing on It's face, or declare
persons who are not shown by the re-
turns to have received the requisite plu.
rality, It Is tLSurpiHg functions, and Its
conduct will be reprehensible, If not even
criminal"
Our laws in letter and spirit are entire.
" in accord with the doctrines thus laid
down by Mr.. Cooley. Neither the Con.
stitution nor the laws have authorized
the Governor to pass upon any disputed
fact" touching elections, and an attempt
on his part to do so would be "usurping
functions" and "reprehensible." Hell has
no control over the holding Of elections
in the first instance. BE cannot direct
either by proclamation or writ OF cleo.
ton when the election for members Of
Congress shall be held, nor can he pro.
hibit tho holding Of an election. These
elections are he'd by the Supervisors and
Inspectors OF election; the only competent
authority known to tho law, and the re-
turns thereof transmitted to the Gov.
ernor. What disposition must be made
Of these returns? To sum up the whole
question in o few words, two elections
were held in a large majority Of the coun.
ties under the authority OF the proper
officers, for Representatives in Congress
for the same terms, one on the twenty
second Of August and the other on the
twenty.fourth Of October, land returns Of
both these elections were made to mo. !
have no information that the Supervisors
have failed or refused to make any re-
turns in counties In which elections were
actually held, although such may be the
fact. Is 1t competent, therefore, for me,
as Governor OF the State, to ascertain and
declare the result Of one Of these cleo
tions, and to reject the returns OF the
other2
Where Is the authority for.such pro.
ceecdiDg 10 be found in our laws? There
is no express authority certainly tor such
action, and none can be inferred from any
fair construction Of the statutes upon the
subject. But this bill provides that 1.-THE
Governor shall thereupon ascertain who
were elected for Representatives In the
Congress of the United States at said cleo.
ton, (that is on the Gath of October, and
make proclamation thereof in the same
manner and with like effect, as II the re.
suit of said election had been Rscertained
and certified by the Supervisors Of the
several counties, within the time hereto.
fore prescribed by law" Tins Is not q
grant OF DOW authority to the executive
department, for the duties prescribed are
precisely the same as those to be found In
the existing laws. But 1t does in express
terms, direct that the Governor shall as
certain and declare the result Of one Of
the elections aforesaid, namely: that
held on the Gath day Of October, and by
clear implication, that he shall reject the
returns Of the other election. In
other words, in cases pending, under lsws
which have not been changed, before the
Governor, for his final official action; this
bill prescribes what this action shall be-.
1t is not necessary to inquire what would
be the results Of legislation Of this charac-
ter. The propriety or improperly Of It are
no longer open questions. The Constitu.
ton provides that "the Legislative, Exec.
utive and Judicial departments shall be
separate and distinct, so that neither shall
exercise the powers properly belonging to
either Of the others; nor shall any person
exercise the powers Of more than one Of
them at the same time, except that Jus
ticcs OF the Peace shall be eligible to the
Legislature"
This bill being clearly in contravention
oil this Article Of the Constitution, In that
1t directs the mode in which the Execu-
two Is to discharge his official duties, ],
have felt 1t my duty to return II to you
without my approval But II neither the
Executive nor the Legislative department
can pass upon the validity Of the elections
in question, where does the power reside
to do soH The Constitution Of the Uni
ted States affords a ready solution OF the
question when It declares that each
House shall be the Judge Of tho elections,
returns and qualifications Of It's own
members" It would be contradiction
OF terms TO say that the power. exists
in some branch Of the State govern.
ment, (elther Legislative Or Executive to
decide upon the validity Of the election Of
members OF Congress, and that the same
power resides at tie same time In
Congress itself. Is congress bound to res
pect and obey any decision Of the
state authorities touching the election
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