The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1876-12-21

elected. Such ia not the English doclrine Tor
they are In the familiar habit OF sealing members
In Parliament who received the minority VoIe
where the majority was cast for disqualified can
didate, but II seems 10 me more consonant 10 the
spirit of American institutions, and that neither
the view expressed by the Indiana Supreme Court
and by Chief Justices Chase and Thompson, nor
that of the Court Of Appeals OF New York ought
TO apply TO an election to representative Dody'
as the Senate aad House Of Representatives, on
the simple principle that a minority can never
elect representative of the whole people. But@
Presidential Elector Ia not representative. on
the contrary To treat him as such Is VIOLATION OF
the letter of the Constitution as well as OF its spirit
and of the known purpose OF ib founders Ihe
ineligibility OF Federal Oticeholder to the once
of Elector must be determined In view OF the
character Of that ofiCe, as II was understood oy
the trainers of the Constitution, and not by any
change OF opinion In regard to the character OF
that Office which has since occurred. Again, the
language Of disqualification varies In various cas-
es, Federal officer is not eligible 10 be "appoin
ted" The Fourteenth Amendment disqualihes
those who are within It's provisions not from ap
pointment, but on the contrary, uses these words
mo person shall be Senator or Representative
In Congress or Elector of President or Vice Presi
dent. or hold any office, civil OF military, under
the United States, or under any State, who, haV'
ing previously taken an oath as member OF
Congress or as an officer Of the United States or
as a member Of any state Legislature. or as an
executive or judicial officer of any State, to sup
port the Constitution of the United States, shall
have engaged in insnrreGtion or rebellion against
the same, or given aid or comfort to the enemies
thereof, but Congress may, by two.thrds of each
House, remove such disability" Here the cis'
qualification attaches not to the appointment and
relates not TO the date Of the appointment, but to
the act of holding the Office, and thus to the date
of performing It's duties so that person subject
TO the disqualiacations of the Fourteenth Amend
ment may well be appointed, and If eligibility be
conferred on him before the time for performance
of its duties may enter upon such Office. There
fore votes for person thus disqualified as in the
case of Vance in the United States Senate, and in
the case of General Frost in Missouri, can not be
treated as null and void, but at the most create a
vacancy if the disqualification be not removed
before the time for the performance of duty in
the Office has arrived
| will take the trouble of calling your attention
to another question cognate to the above, sup
pose votes given for Watts not to be rejected
as null and void and the doctrine of the Indiana
and Maryland cases do not apply; and suppose
that these votes can not be rejected under the
rule established by the case of the people against
Clute, then third question is presented, Was
there vacancy in the Office of Elector, and was
there failure to elect which can be treated as
vacancy? .....
It seems to me pefectly clear that either Cronin
| was elected or there was no election and no va
cancy which could be filed by vote of the other
Electors; and that the same is true of the election
| of Soace in Vermont and in several other cases
of the election of Federal ofiice.holders which
have occurred come to this conclusion by
| consideration of the Revised Statutes of the Uni
ted States. IN general principles, to make va
| Cancy it requires that there should have been an
office to which some one has been elected. 1t can
not be said | suggest though | have not exam
ined the question fully, that If the people fail at
| the first election to an Office to chose any one,
there is, in any proper sense of the word, vacan-
| cy in that Office There has bten simply failure
| to fill the office. But whether this be so or not
that the omission to elect an Eector by the people
does not constitute vacancy, is made perfectly
clear by comparison of Sections 1873 and 1874, Of
the Revised Statutes of the United States Section
| 1873 is in these words: Each State may by law
provide for the filling Of any vacancies which
may occur in Its College of Electors, when such
college meets to give Its Electoral vote" Section
| 1874 provides that whenever any State has held
an election for the purpose Of choosing Electors,
and has failed to make choice on the day pre-
scribed by law the Electors may be appointed on
q subsequent day in such manner as the Legisla-
ture Of such State may direct" These sections
treat vacancies as being something qnite different
from failure to make a choice on the day pre-
scrbed by law In the case of Watts and Sollace,
either their highest competitors were chosen, or
there was failure to make choice on the day
prescribed by law. If there was a failure to make
choice on the day prescribed by law there is no
doubt that, under Section 34, the number OF Elec-
tors not chosen might be appointed on subse'
Quent day in such manner as the Legislature
Of such State might direct But as this is dis.
tinct provision from that for filling of vacancies
in Section 1873, this appointment can not be made
under provision of law adopted by the Legisla-
ture for filling vacancies, for the filling of vacan-
cies is one thing and failure to elect another un-
der these statutes and if the Legislatures of Ore
gon and Vermont have never provided Ghey GER
tsinly have not in Oregon, whatever may be the
case in Vermont-asto to which am not informed)
for the case of failure to make choice on the
day prescribed by law then certainly If Cronin's
and Sollace's highest competitors were not duly
elected at least the vote cast under the pretense
of filling the vacancy can not be counted. In
Oregon this view is confirmed by the provisions Of
the Oregon statutes relative to the filling ofvacan
cies They are in these words--[General Laws
chapter 45, Section 2, page 4OE "The Electors ol
President and Vice President shall convene at the
seat of Government on the first Wednesday of De-
cemter next after their election, at the hour of L
of the clock of noon Of that day, and If there
shall be any vacancy in the office of an Elector
occasioned by death, refusal to act, neglect to at
tend or otherwise, the Electors present shall I'M
mediately proceed to FILL by UtUd VOce plurality Of
votes, such vacancy in the Electoral College, and
when all the Electors shall appear, and the va
cancies, if any, shall have been filed as above
provided, such Electors shall proceed to perform
the duties required of them by the Constitution
and laws of the United States"
Had the Legislature of Oregon intended to au
thorze any vacancy, however caused to be filled
by the Electors present, they would not have used
the Words "If there shall be any vacancy in the
Office of an Elector, occasloned by death, refusal
to act neglect to attend, or otherwise" These
words, "Dccasloned by death, refusal to act, ne
glect to attend, or otherwise are entirely super
fiuOus upon this theory. For the sentence would
then have read IF there shall be any vacancy
in the Office Of an Elector, the Electors presen
shall Immediately proceed to fill by viva vOce plu
rality Of votes such vacancy in the Electoral Col
lege" The use of these words "oceasioned by
death, refusal to act neglect to attend or other
WISE" indicates that there are cases of vacancy
which the Electors may not fill, and this view Il
strengthened by the character Of the vacancies
thus described the three named, death, refusal Il
act and neglect to attend being all the results O.
; events occurring after the election. The word
"or otherwise" upon canons Of Interpretation
, we'll known to every lawyer can not enlarge the
preceding words 80 as to make them apply to ev
cry case of vacancy but only refers to other like
cases depending upon conditions similar to tht
enumerated cases. The maxim applicable is nus
citur sOctis So statute treating of "deans pre-
bendaries, parsons Wears and others having spirit
ual promotion" is held not to extend to bishops
though they have spiritual promotions, Deans be
, ing the highest persons named, and Bishops beinl