The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1877-02-14

the appointment cOuld be had after the APP
pointment had been made and the office had
passed away.
HE Is INTERRUPTED BY Mr.. THURMAN.
Mr.. Thurman asl1ed-Supposing the case to
be as stated, would there be action taken look
ing To an inquiry whether any appointment
Mr.. Shellabarger said that when all that
cording TO the requirements of the law OF the
state existing on the day of election, The pow
er OF the state passed away, and il
PSe Bower o the state f %ss on fRa
day forever ended. He conceded that ii was
In the power of a state to try by her own ma
chinery the power of her electors. but the
scrutiny made must be made prior to the dis
charge of the functions of the Office. The
machinery to contest an election after the
ofhce had passed away, would be, he said, an
absurdity- t.l
MIR. EvART's SPEECH
Mr.: Evart's closed the argument for the re-
decided that in one particular it will receive
evidence touching the eligibility of one OF the
Florida electors Humphreys. LIDO not under
stand the commission to have passed upon the
question, what the effect is, as to the accept
ance or rejection of vote thus challenged for
that on that point it will receive evil
oence which may be offered First
reys's vote is maintainable, and secondly,
whether the maintainable and maintained
methods of the constitution permit of any
lection from the certified vote transmitted
and opened. ON that ground Mr. Evarts went
on 10 argue that the evidence in regard TO
Humphreys holding office fell short of show
Ing that he was in office at the time of his
casting the electoral vote, and that the
burden OF proving 1t rested on the side
that made the objec IONS Was it,
he asked TO be pretended that under the law
there was any power to hold the occupant of
civil office to the per ormance of psduties
moment beyond his will? The authorities he
said, were clear as to the right of citizen re-
signing an Office. Even without his resigna-
ton being accepted, all that was heces-
his Office. He then went on to say: 'eThis
subject, then, being rejected from further con-
sderation, understand that there is no mat
ter left but for the execution, by this commits
sion of the duty accorded to it by the act of
congress under which it is organized TO de-
termine out of the material of these certif-
counted for the state of Florida"
Mr.. Evarts said that the first certificate in
surance, the vote of the state of Florida, and
went on TO argue against the second and
third certificates. What, said he, are the pro-
state court states complete vote is to be re-
trieved and reversed and that when a judge of
state court has so decided the supreme
court OF the United States must make
low obeisance to Mr.. Judge White, and say:
"That is the end of the law, that is the fiat of
the state" Well, suppose that we do succeed
in counting president in, and suppose that
quo lCdTrdntO is started to prove that the presi
dent in his seat should be dislodged because
some of the votes counted for him were not
cast by the de j,re electors, then ii is proposed
that the decision of a state court
is the be all " and the =" end
all OF this inquiry. You must never lose sight
of the matter that you are to advise what votes
and how many shall be counted by the two
houses, and when you have determined that
extraneOus evidence shall not invade the reg
ularity of the finished transaction of a state.
You have determined as by double decision
that it shall not be invaded, uisparaged or eX-
posed to any question by a mere certificate
which is its own agent and author; a volun-
teer in disturbance in the counting of the
votes.
MR.. MERRICK CLOSES FOR THE DEMOCRATS.
Mr. Merrick closed the argument on the
democratic side. He said the burden of proof
rested on the ether side TO show that at the
time of casting the vote Humphreys did not
hold office. He argued that until a resignation
was accepted by the power that conferred the
Office and that the fact appeared on record, he
must be held TO be still occupying the office
Representative HOar put the case of an of
ficeholder being elected to the senate, and
asked whether, IL an officers resignation of an
office were not accepted, he was thereby to be
kept from his seat?
Mr. Merrick replied that the fact of his be-
ing admitted to his seat in the senate would be
a discharge from the office he held, provided
he had prior to that time rendered his resigna-
ton.
: Mr.. Hoar inquired whether the same rule
would not apply in the case of an elector as
well as in the case of a senator:
Mr.. Merrick replied that in the case of a SEN
ator the disability would be only personal,
while in that of an elector il un personal
In other words, a state was positively forbid
1t was limitation upon the power of a state
and not a personal disability of the man.
Representative Abbott-YOu also claim that
even if the acceptance of a resignation was
not necessary the resignation itself must be
made to the court?
Mr. Merriek-Unauestiona the reslgna-
ton must be made to the power that gave the
appointment. Suppose Humphreys had re-
signed to the clerk OF the court; addressing d a
would that be sufficient?
The Presiding Justice-But If he sent it to
81. %
Mr. Merrick-If that is done while the court
is in session, then ii is an act of the court.
Representative Garfeld-Do you hold that,
in the case of n long vacation, or in the case of
a court being abolished by law, or in the case
of the death Of the judge who gave the APP
pointment, that this officer never could have
resigned?
MI Merrick-I should have referred that
case to one of the returning boards in the
south. / hardly know what reply to make.
Mr.. Garfield understand your position to
be he could not resign except while the court
Mr.. Merrick-I presume that the death and
extinction of Office and abolition of a govern
ment and wiping out of a nation make excep-
items to all principles OF law.
Justice Miller-You say that the distinction
between q man who accepts the Office OF Sena-
tor and the man who accepts the office Of cleo
tor is, that in one The objection goes to the
power of the state, and in the other case 1T
does not. What is the difference in the ques-
Mr.. Merrick-In one case the prohibition is
| that no person shall be a representative or
senator who has la not not d attained "a a
| it is that no person shall be appointed
elector who holds an office of trust orfiprofit.
Wherever there is power given to do an act
| the donee of the power can only exercise it
according to the precise restrictions and limi-
tatlon of donation. Mr.. Merrick then passed
on to the question of rival certificates and was
| arguing in favor of the legitimacy of the Sec
ond and third certificates of the Tilden elect
OrS. .rt $40 et r..~--..-..... ii. -,ra- atfrf
| Senator Thurmhn- Suppose the Tilden elect
ors had not voted at all, wouldn't be competent
| to show by subsequent state proceedings that
Hayes, who did not vote, had no titee That
is the real question 81 ,oh la oui.rgd = d
Mr. Merrick-Most unquestionably, 7, The
state can not have her voice simulated
tT,aYI herr IL an or