New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1877-02-21

iann "as olsfthhCnlbeul ana invite the
gentlemen on the other side who may sup
pose this act is repealed, by which only the
Electoral College can be filed, TO show me
some statute that forces upon you, either by
direct provision or By any fair interpreta-
ton, the conclusion that Louisiana has
been diefranchised in this process of legis.
latiOn. There is nothing to repeal that sec
ton which provides for the filling of vacan-
cies under the law of 1868 and 1879, ex-
cept the repeating clause Of the act of
1877, which says that "all other
acts on the subject of election laws
are hereby repealed" Is it possible for the
act of 1870 to stand, consistent with that
repeating clausel If it is, you are bound
by your oath, and by all rules of interpre-
tation, to let it stand; first, because you
must not make it repealed by implication if
you can help it; and second, because if you
do make it work repeal, you work dis
reimbursement of the State. Another rule
of Interpretation Is this that where a
statute has received what your Supreme
Court calls a practical construction, and
has been executed according to that praeti-
cal construction, in every case of doubt the
practical construction that has been given
to the law ia conclusive. The next question
is: What was there left for doubt, debate,
or dispute in regard to the question of the
power of Governor Kellogg to certify this
electionl / want to add to Mr.. Stoughton's
Ory, and will quote the words of the Su-
preme Court of the United States on that
point, because they are so exactly opposite
and conclusive that it seems to me to close
forever, and to all intents and purposes, the
discussion in regard to the question as to
who was the rightful Governor of Louisi.
ana, and who was entitled to make the eer-
tifcste.
MIR. Commissioner Payne inquired of the
counsel whether there we're any provisions
of the act of 1868 that the counsel claimed
were not repealed by the repeating clause
of 1872 except those namedF
Mr.. Shellabarger stated in reply that he
had not gone over the law Of 1875 or that of
1870 in all its parts, and could not, there
fore, answer the question categoricslly.
But" he said, II understand that an ex-
| animation will result in finding that all the
provisions of the act of 1868 are super
seeded, without exception, by the revision
| of 1870"
Mr. Commissioner Hoar said that the law
# 1870 was a revision of the whole statute
law, and contained provisions for the ap.
pointment of the presidential electors and
how they shall certify their acts, etc.
Mr.. Evarts said he would like to suggest
to Mr.. Commissioner Payne that there was
a general election law of 1868, and an elee-
.tOral law of 1868, which are two independ-
| emit acts, found in the laws of the same year.
Mr.. Shellabarger continued IS follows:
Now, take the language of the Supreme
| Court of the United States and apply it to
| these propositions. 1t is in these words: at
rests with Congress to decide what govern
ment is the established one in a State, and
/ when the Senators and Representatives
from State are admitted into the councils
of the Union the authority of the govern
ment under which they arc appointed, as
well as its republican character, is reoog-
nized by the proper constitutional author
| ity, and it's decision is binding on every de-
psrtment of the government, and could not
be questioned in any judicial tribunal"
| That language is absolute and conclusive
of this whole question. Now, as to the in.
eligibility alleged to be wrought as to GER
tain of these electors by the fact that some
| of them held State offices, l will make a
familiar quotation from q speech made by
Charles Plnckney on bill that was pend.
ing in Congress in the year 1900, proposing
to create a commission like this, and want
to show by it that it was not the design of
the constitution to permit State by any
method to add to or subtract from the
qualifications of the presidential electors.
He SAYS that it was the spirit to give TO
Congress no right of interference or con-
troll over the election of President; that
Congress could not object to any vote or
say whether it was oonstitutiOnally given,
but that was a matter left to the State Leg.
islature, and with that alone rests the
power to look into the matter. He says the
disqualificatiOns against any citizen being
an eleotor are very few; they are that nc
officer of the United States shall be an
elector, and that no member of Congress
| shall be an electOr.
Mr.. Commissioners Thurman inquired
whether it would be unconstitutional for a
State to require the electOr to be citizen
of the State in which he resides.
Mr.. Shellabarger said that in his judg
ment it would be.
Mr.. Commissioner Thurman asked
whether State could choose an alien TO
eleotOr or Senator2
Mr. Shellabarger replied that if Their
was any ineligibility on the part of an cleo
tor it must be such as the constitution o.
the United States has indicated. The con
} stitutiOn has not prohibited it; it has Onl.
} made the two prohibitions already referred
to. 1t was long time doubted whethe
the States could appoint their electors b,
an act of the Legislature; but that was SET
tied long ago that there was no limitation
of the power of q State in regard to tn
method of appointment, but that there wa
a prohibition in regard to what the qualif
cation of the eleotOr should be. The mex
question is whether the Returning Board
as organized, was legal board as to it
mem bers. 1t is said that because it hai
! but four, when there ought to have bee
| 0CsAOA
1 Mr.. Shellabarger quoted several author
ties, showing that this was not defect i
9 their action. In one of these cases it wa
shown that q board composed of ten pei
! sons, with power to fill vacancy, did, by
1 vote of five its members, remove supei
8 intendeDt of schools at time when Their
was an untitled vacancy in the board, on tn
t ground that a majority could act and fiv
9 was a majority of nine. This was cas-
a where the facts were much like those W
q are dealing with. In the case quoted th
!. number of persons were fixed by statut'
+ There was vacancy at the time of the al
i ton, and there was power to fill the vaeal
: oy in the body. 1t was also case whel
r thew failed to fill the vacancy, and wher
l. had they filed the vacancy, the vote b
n which the act was done, viz: five, would NJ
g have accomplished the removal. In tn
}, case the court was brought s1uarely to tn
a question whether board thus constitute
could act 1t is the exact case with whiC
= we are dealing.
d In response to a question from COmmi
4 sioner Abbott as to whether the board WI
/ full and therefore the vacancy was mel
d absence in the cases he had examined, Il
:. counsel replied that these cases we're not
IT directly on all four with the case at bar
IA the case he had read, because in most
p them the absence was not by reason
/, death SO as to create an actual vacanc
b but all the reasoning of the court, said
v is entirely in harmony with our position
4 wit: That the public interest will not be il
J. periled or stopped by absence, whether tn
i absence is death or what not.
q Commissioner Abbott put the questl'
4 because am quite sure there are 'respet
v able cases where court has held that m
8 iority may act if the board is full but t
!. action of majority will not bind.
g Mr.. Shellabsrger-The provision is, IN