The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-02-22


these matters. tits preliminary decision that must
be made and SO there must be preliminary decision
governments, TOO. The Executive is called upon
TO exercise certain duties and rights. and he
must decide For instance, man has 80 ceased
he dies. The Governor must take cognizance Of tho
death OF incumbent without the court deciding that
fact He takes notice Of an abandonment when
person leaves the State The speaker here referred 10
the case In 14th Indiana, which was mandamus
to compel tho Governor 10 a commission
where the Court said the Governor might determine
whether candidate was entitled 10 receive
rests upon the ground that tue constitutional
inhibition in force II me Governor has ascertancd
that has issued commission to person ineligible
10 the Office he may issue another commission. The
speaker also referred 10 thrtynnth Missouri, where
II says that tho Governor must have discretion in ap
pointing commissioners. he may go behind q cerna
cate. The Issuing OF commission Is an act OF
IN, the Executive ip his political capacity and not
cises political discretion for the OF
which no T. atone answeraOc to his country Why
then IL his discretion taken away destroyed, when
his' duty refers TO the issuing OF commssicnY Il
certainly not II the Court has jurisdiction in that
instance 10 prescribe the rule OF his conduct they
tainly possess II IN all other aud this would
make the Judges tho Interpreters, not only OF the will
Of the executor, but OF his conscience and reason
BY Commissioner Thurman-Does the law OF Oregon
require the Secretary OF State to give any decision at
all or does II require tho Governor to give the cvi
dencc OF the iacty
Senator Key--Lct me read:-
The for the electors shall be given, received
turned and canvassed the given returned and
canysed for members Of Congress- The Of State
the the State tho same signed
oy the ana sssssary ana :" the COLLEGE
cember.
by Comm .ssioner Thurman-Does the Secretary Of
State make out that list including the name OF Watts
Senator keiy-No, sir; II did not include the name
OF Watts Tho decision upon the facts and upon tho
law was upon the interpretation OF protest by num-
Der OF gentlemen to The counting OF tho OF Watts
The Governor undertook TO decide the matter, us he
had right to decide II, under the decision have
stated
Commissioner Abbott inquired whether the certif-
cate which presented here was not Ia
cordance with the provisions OF the law OF Oregon in
every respect
Senator Kelly replied that It was IN direct accord
ance with tho law OF Oregon and the law Of the United
States.
Commissioner Abbott inquired whether there
any otner Board In Oregon except that constituted by
the Governor aud Secretary of State who could certify
to the election Of electors
Senator Kelly replied that there was none
ARGUMENT OF REPRESENTATIVES, jerks
Representative jerks next addressed the commission
on benaf OF the democratic side, substantially discuss
ing the same points those referred IN the urgu-
ment OF Senator Kelly.
oaLlaArIoNs To OBSERVE THE LAW
Mr.. jerks then quoted several authorities In tho
Pennsylvania regard the election Sem
aors and Representatives to Congress- and said tho
the election aud the time OF holding the
office in regard TO these offices, as well
electors. The citizen who votes Is much bound
10 regard the requirements Of the law the person
who is voted for and II he dsregards those provisions
you must treat his act as nuy II Is to be treated
us though II was not done. The learned counsel on
the other side have argued that, Notwithstanding u
u
law. why II act performed and must be re.
garded On that reasoning the provisions OF the law
could be disregarded and the constitution wouQ Mt
once become piece OF obsolete literature, useful only
for the study OF the antiquary
Mr. jerks quoted authorities to show that tho legal
votes control the that illegally.
In reply to an inquiry from Commissioner Edmunds
Mr. jerks sad that II puts the question independent
OF the knowledge of the voters The English cases
assume this doctrine, that If the person who votes
knows that the person Tor whom he has voted Is dis
qualified IN that event his vote Is thrown II that
the doctrine In this country, tho people being
the principals and the officers their agents (supposing
the English doctrine tho true one that the
know that the disqualified eector disquahed)
still the theory OF our government is that the people
are principals and the officers their agents. aud
they are presumed have any agent that they do
not recognize. SO that Watts elected II nc
ceived majority of the votes
Commissioner TMURMAN-Your proposition Is that
where cannot be voted Tor then knowledge on
the part OF the voter Is OF no consequences.
Mr. Jenks-lt,is OF no consequence whatever. The
English authorities do not pretend that the voter
should know the disqualncations Of the candidate.
1t Is only rs TO whether the next highest candidate
elected. In any event the man Is not elected who
ceives the majority or the highest number OF votes
under The theory Of government that the people
the principals and the officers the agents. does
not apply. We will then assume that Watts not
elected
Commissioner Edmunis inquired how The statutes OF
Oregon would apply the action Ot Governor In
declaring the place vacanty
MIR. Jonks-The act OF the Governor was IN pursu
ance OF duty conferred by the constitution upon him.
in which ho was to exercise honest discretion
which was conclusive political duty. After having
sworn he would commission who was disoua
lied; he could do that, aud ne had tho right to
decide the question as TO whether there election
or not.
Commissioner Edmunds-Had this been an ORDINARY
State Office for the term OF year, Tor instance and
the 1cvernor had done the same thing, would 1t have
been competent tor the courts to have reversed his
judgment and decided the other wayY
Mr.. jerks conformity to the law OF the land It
would, but without that conformity and without that
express statutory enactment II would not In tho
first instance, controlled by express statutory
provision.
Mr.. Morton inquired whether, In counscrs opinion,
1t would DO competent for State constitution regu.
late Ia any way the appointment oi electors.
Mr. jerks replied that the consultation o the United
conferred that power In some Instances upon the
Legislature OF the State. The constitution OF the
United States becomes part OF and incorporates IL
sell into that OF every State. The Legislature tho
State conformity TINS double instrument and the
power conferred by both, may 80 regulate, IL 1t does
not infringe upon either The Governors functions
IN the commission are political, and such, when
not Of the well asce rtaned law they
conclusive, and u II be u discretion which
may be exercised politically, that discretion without
nuUa fce Is conclusive. Mr. JenKs, IN resumiug said
the propositions, then. that we have attempted 10
show are these:-That the only evidence before you
which conforms to the law of the land is the evidence
AS required by the law Of Oregon and The law OF The
United States-that which certified by Cover
Lor vi the Stale OF Oregon.
SecOnd-That the act OF that Governor Is conclusive
upon this tribunal in tins inquiry.
Thivd-rnat Watts could not be elected, IL he
had majority OF the votes
FourM-rhat the votes being for who could
not DO appointed, Cronn, tho next highest, WIS
elected.
FitM-That even II Cronin not elected there
was no vacancy and being no vacancy there could BIZ
no lilng by any college whatever.
Then the case stands in this way :-Cronin comes
and votes; two others come and vote, but you do
know whether they are the persons voted not. be-
they do not come identified tho law says they
shall come. But assuming that they the same
persons VINO were voted for and properly idoutined,
which vi these votes should u" counted 7
Cronin's should be counted cast, and
the other two rs they are cast, would be the
conclusion should come To from these several propo
tons. We believe this to be exposition OF
the and the true case because the
disqualification not To he forgotten repud iaed
II perhaps 100 common now To regard the PROVISIONS
Of the constitution as directory and to be oboycd or
disobey ed the option Oi the person who
ininistering them But we ask you TO give 10 this
truth its proper weight IN ITS decision, and giving IL
such proper weight the result will be have ind
Gated
Mr Inul. q cancluleI=I AJAX this