The New York herald., 1877-02-09

not rclieve humphreys from the duties with which
no bad been invested by another powcr-namcly tho
Circuit Court OF Florida-the alleged resignation
no effect paIpab;y therefore, Mr. Humphreys, in bis
opinion held an office OF pront and the day OF
the election, and tho vote cast by him could not bo
counted.
Mr. Commissioner Thurman injured whether This
was an oce the resignation Of which must be accepted
In orjer 10 give che resignation validity, whether
the officer could resign OF his own motive auy time.
Mr. Hoadlcy remarked that there was nothing IN the
statute with reference 10 the question OF resignation
Humphreys however, having accepted the Office could
not, he submitted, dvest himself OF by his own act
alone. because public policy required that Offices
should not be entirely at the will aud pleasure OF tho
holder. Especially was this the case with oinces
for the performance OF the duties Of which bond was
required.
Mr. Hoadley regarded the provision OF the
constitution dsqualfying persons holding Offices Of
profit or trust as mandatory and as limitation and
dminution OF Inc grant OF power the State, that
Stale itself It's organized aud corporate capacity
This provision, he maintained, rs IN substance impera
i've aud admits OF no evasion Ho read from the
Madison papers, page 343 10 show that the trainers OF
the constitution intended that this disqualification
should attach as exception provso TO he grant
should attach by d,squah OF all ineligible per-
sons. Tho State was disqualified from appointing
FORE id:-Frst upon the appointing power, and
secondy, upon the candidate, and the effect OF such
disqualification hc submitted render the
of the State IN that regard null aud void II was the
duty OF the Federal government, OF the Satcs
insist upon and carry into iul force tho provision.
The question not a new one. In 1887 there had
been Ave pos masters appointed attempted to be
appointed as PI esidentai electors The question had
then been submitted ION resolution offered by Henry
CIay) TO select committee OF tho two houses and the
report Of that committee, made by Mr. Grundy, was TO
the effect That single unautborized vote could MT
vitiatc the whole vote OF tho Electoral College, and
that the constitutional prohibition ought DO carried
vent officers OF the general government from bringing
official power 10 influence the Presidential election.
That the provision excluded and disqualified even
deputy posmasters, and that the resignation Of tho
Office after the appointment OF tho clector did not
entitlc him TO vote AS an eccor
Senator EpNuxDs-Wbat did the committee say
ought to be done?
Mr.. HoApLgy-Only that the article ought to bo car
ricd III its whole spirit into rigid execution.
Senator EDMUSDs-Havo you read tho conclusion of
the repurtY
Mr.. HoApLKY-Oniy In an excerpt.
Senator EDxUNDs-I hau the impression that the
committee had added something else. .
TiiK QUESTION PRESkETED,
Mr. HoADLkY went on u say that Two questions
were presented here;
First-Dd Humphreys at the timc he elected,
hold an office oil pront and trust?
S,cond-What Is tho effect OF such holding?
Ho argued that there was multitude oi cases In
England aud America, citing some or them, all OF
which treated the appointment OF ono who was non.
qualified and attempted to act, as an absolutely null
appointments; and in one Indiana Tho next
highest competing canddnte was declared appointed.
But mono OF tho authorities favored Inc idea
that tho election oil one consttutionaliy DIS
qualified could result n anything else than
without remedy, because the statute of tho United
States l34 oi Revised Statutes, provided
case or failure 10 elect on the day bed BY law,
then the Legislature may appoint subsequent day.
This the o failure to elect, and would have
to be shown that tho state OF Florida had taken advan
tnge that provision section 13i else that sin
gle vote was lost Tho inhibition OF the constitution
being poremptory, the vote OF the State would
ry uc lost II was not Tor the provision OF section
1874 except could be shown by principle OF law
that the cletcion OF disqualified candidate Is possible
What lest peradventuro by mistake and without
TO violate the spirit Of the constitutional provision,
had Congress provided that in o election in
any State, the Legislature may supply method OF
supplying the dciettY l the State Of FLORIDA did not
take advantage OF the rcmedy IL was her own FAULT
ARGUMENT OF MR. GREEN
Mr.. Ashbel Green, OF New Jersey, followed on the
same side, adding TO Mr. Hoadlcys argument the ioi
lowing points, VIZ That Office oi Shpping Conl-
missioner held by Humphreys bcing an office TO bo
nled by the Court could DC only surrendered up to the
sent TO Judge Woods failed TO perform the Office
sought be imputed u until reached
Court Itself and that certificate had been received
from the Clerk OF the Court; that IN 10 recent
period, certainly subsequently TO tho timc when Hum
reached the archives oi the Court.
THE ELEcrIOx QUESTION.
Ho then passed on 10 the other branch Of the In
quiry, whether thedemocratc electors not duly
clected and whether thor certificate duly
He II As
had before It such evidence must carry conviction
that ths supreme Court OF the State o Florida has
hold and determined on quo warranio proceedings,
merely matter OF law but matter o fact thai
the Tiiden electors entitled to tho Office against
Inc huycS oIeCtOfS, ana All the WOrlu thu.
court had also determined that the action OF tho
Board Of Canvasscrs in November last, by which
tide Hayes electors claimed 10 have been right
fully elected, was UNAUTHORIZED illegal and
VOID. He held that 1t was tho duty OF tho isson
IL tie rule OF every other court consider us
binding conclusive upon the construction gwen
by State Courts to state Statues ana that
this decision by he highest court OF Florida must be
taken into consideration. In addition this tho
mission had before II The certificate OF the Governor
OF Florida and tabulated statement showing, county
by county, all the votes cast tor electors, and showing
the election OF the Tildcn electors.
Thus the Executive had spoken, the Judiciary had
spoken ana then, In tho third certificate the Iegisa
ture had spoken ail in the same unmistakabIe notes
Un Tie 26th oil January 1877 the Legislature passed
recitng that according to the returns office
OF the Secretary OF STATE. the Tdcn elccto were
chosen in the manner required by law that orisi-
nal canvassers had interpreted tho law defining the
powers and duties In such manner u to give them
power TO exclude certain regular returns, and
did exclude certain returns, winch Interpretation
had been adiudged by the Supreme Court to be r.
roneous end Ilega that Governor Stearns, mslcd and
deceived ty such erroneous action OF tho Board OF
Canvassars, had erroneously caused to DO made aud
certified lists OF Hayes when such per-
sons had not received the highest number OF votes,
and then declaring in section one, that the Tildcn
electors were duly appointed and authorized act
and in section two authorizing the Gov
electors and authorizing tho latter to meet
at Tallahassee and 10 give an additional
certificate OF the votes which had been cast by them
tho 9th Of December and send to the Presdent
the Senate as required by law; so that tho comms-
had in this return No D. all the branches tho
government OI FOruu, speaking Win uuanln ana
united voices, the tone, and certifying TO the
same fact, which tho question before the unal
Tor decision.
QUESTION TIME.
He then proceeded 10 meet and reply TO the objection
made TO return No. because " had the
scat of government within the tme prescribed, ana
he argued that in that matter time
element II 1t was received at any tino prior TO the
counting of the he submitted that was su-
cicnt. Such Of public officers II done within
the time prescribed by law, dii not thereby become
incapable Of beng done aftcrward. They
remained not only capable OF being done,
but the duty OF pubic officers 10 do
Them subsislcd in full vsor and obligation,
and the right to compel their performance by pubnc
officers accrued by the very ihat the lime Inn
tied by law had passed lie quoted prcccdens In sup
port of that proposition. The act OF the Florida
Legislature OF January IL, 1871. simply allowed a
piece Of evidence TO be supplied alter the time when
tho law required public clccrs TO furnish H. IL
curative act. IL was allowing an act to be done nunc
pro tune in tVrhcrancc OF right and justice Neither
oI these acts OF tho Legislature post lacto
law.
He was proceeding TO citc authorities that point
when he was reminded By the presiding Justice that
" hardly do n ne usiO n