Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1874-03-05


The hour having arrived for the
Weimer-Welsh contest to begin,
Mr.. offered a resolution that
the Senate now be sworn, and proceed
at once with the case. Adopted-21 TO
IA.
A call for the Senate showed 81 MEM
bers present-all except Mr.. Wallace.
Chief Justice Day administered the
oath.
The counsel for Mr.. Welsh asked,
and the Senate voted to grant two
hours to each side to hear the argument
upon the question raised yesterday by
the contestee, namely: as to whether
the Senate has jurisdiction Of the case.
MIR. LITTLE.
Mr.. John Little, Acknowledgement,
opened the argument for Mr.. Welsh.
He argued generally that the question
as to whether WeImer or Welsh is en-
titled to the treasurership is purely a
judicial question, and cannot be tried
by either branch of the legislative
power. In fact, the exercise ofjudicial
authority is expressly forbidden to the
Legislature except in certain specifical-
ly enumerated cases, such as deciding
the question of contested seats in the
Senate or House. The only clause of
the Constitution that can be quoted in
favor of such Jurisdiction as is claimed
for the Senate in this case is section q,
article 2, 1.-The General Assembly shall
determine by law before what author
ity, and in what manner, the trial Of
contested elections shall be conducted
Mr.. Little claimed that this section
must be interpreted i'm harmony with
section 80, which forhi'5 he exercise
of judicial power Ia tie General AS
sembly. Consequently it (section 2l)
must mean, and can only mean, that
the Assembly can select the court, the
judicial tribunal before which the con-
test is to be tried. 1t may determine
the tribunal, but in doing so it must
determine in accordance with the linn
itatiOns of the ConstitutiOn-that Is, it
may determine what judicial authority
shall try the case. Now, the Senate is
not judicial authority, except for cer-
tain purposes enumerated in the Con-
stitution of which the trial of contested
elections Except election to the Senate
itself is not one. Hence the law Of
1852 protesting to confer that jurisdic-
ton upon the Senate, is unconstitutional
and void as would be any law of like
nature that could possibly be enacted.
Mr.. Little argued all these points
with great force and ability, holding the
close attention of the Senate and large
body Of intelligent spectators.
MR.. DUNCAN.
Mr.. T. 8. Duncan, of Columbus, ,coun-
sci for Mr.. Weimer, took the position
that the Senate for the purpose OF try
ing that contest is not a court in the
proper sense of that term nor does the
law of 1852, which gives the Senate
Jurisdiction in contested election cases,
contemplate that it shall be court. 1t
is simply the authority before which
the contest is to be conducted in accor-
dance with the language of the COnsti-
tuition, and as determined by the
General Assembly in 1852. Mr.. Dun
can went on at length to define the diff
ference between court and the Senate
trying contested election case, the ar
gument being that if the Senate is not
a court, in trying the contest, it does
not, therefore, exercise judicial author
ity, add consequently is not prohibited
from the jurisdiction by the 23d section
of article II.
Mr.. Little had also made the point that
if the General Assembly had, in 1852,
intended to constitute the Senate
court, it would have been substantial
ly the creation of new Judges, and
would, under section Is, article 3 of the
Constitution, require vote OF two
thirds of each branch of the Assembly,
where the law of 1852 was not passed
by two-thtrds vote. Of course, Mr..
Duncan's argument that the Senate is
not court was intended also to meet
the above argument of Mr.. Little. Be-
sides, as the Constitution already clear
ly contemplates that some authority
either the Senate or court, shall try
contested elections, and as the General
Assembly might clearly, without a
two-thirds vote, confer the jurisdiction
upon the Senate without a two-thirds
vote, as it has done in the act of 1852.
MR.. M'swENY.
Mr.. McSWeny, of Wooster, counsel
for Mr.. Welsh, next spoke. He de-
clared that the determining which of
two persons is entitled to exercise the
authority and enjoy the emoluments of
highest exercises of judicial power. No
lawyer will deny it, and if it were de-
MED, he had authorities by the score to
maintain it. The words of section 21,
article 2, that the contest of an election
case is a trial. and trial is judicial
process the world over.
Mr.. Mckinney, of Ashland, counsel
for Weimer-I defy the gentleman to
cite single case in which, in trying a
contested election, the authority trying
it was called a court.
Mr.. McSweney-I care nothing for
the name of the thing. 1t is the SUBJ
stance that am after. The Constitu-
ton does not forbid the Senate being
called a court. 1t forbids the exercise
of judicial power, and that is what we
hold to-day.
Mr.. insolvency further argued that
proceeding in quo warranto before the
Supreme Court, and that Mr.. Weimer
should go for his remedy. That would
be the method of trying all contested
election cases, even of county officers,
if the General Assembly had not by
law determined that these latter Ca
ses should first go before inferior courts.
Section q, Article II, cOnfers no new
power upon the General Assembly. 1t
always had power to determine how
and by whom contested elections were
to be decided. But under the Consti-
tuition of 1902 the Assembly neglected
to make any provision for the trial of
contests for county officers, &c. They
had always before been taken, through
the writ of quo warranto, to the Su-
preme Court, and to remind them of
this neglect, and thus prevent it for the
i future, section q was putin.
! Suppose section q had said The Gen
eral Assembly shall by law determine
in what manuer, and before what au-
authority, the trial of cases in eject
ment (cOntests for the possession of
| -nnl ort,toA shall he conducted UOuld