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


morning. The counsel on both sides was
present except Judge Black.
PROCEEDINGS COMMENCED.
Justice Clifford stated that proceedings were
now in order under the orders adopted by the
commission yesterday.
Mr.. Green, of the counsel on the democratic
side, called as a witness George p. Rae, of
Florida. who resides in Tallahassee, and is
attorney general OF the state.
Q.-Were you present when the writ of quo
tOdrTdntO was served?
Mr.. Evarts objected to the question as not
| within the order of the court.
Mr.. Green said they proposed to fix the date
| consider that the order of the commission ex-
| cluded that question.
The question was then put to the court. The
/ objection of Mr.. Evarts was sustained.
J. Mr. 4. G. Humphreys having been identi-
\ fed, Counsel Green presented the commission
! of Humphreys and the certificate from the
| was filed that no resignation had been filed up
| to January "a, 1871
l. HUMPHREYS EXAMINED.
| Humphreys was called on the republican
side, and examined by Mr.. Stoughton.
He testified that he resigned the Office of
| United states commissioner, and his resigna-
tion was accepted October by Judge Wood,
| from whom tie office came.
The witness produced written acceptance
Of his resignation.
Mr.. Merrick objected to the production of
| the paper as il was an act of an Individual and
not the act of court. -4 -r
Mr.. Stoughton-The paper was received
ton, which was accepted and that, until he
Judge Woods) could come to Pensacola and
hold court, duties would be discharged by col
lector.
The Introduction of a letter from Hiram Pot
ter, Jr collector of customs, dated October 5,
1876, asking the witness to turn over the books
Merrick - -
The witness stated that he did turn over the
the Office since. .--l.l
aCross-examined by Mr.. Green: The letter
was addressed to Judge Wood at Newark,
had been no session of the court at Pensacola
since that time The testimony here closed.
Justice Clifford announced that the whole
case was now ready for argument, and under
the third rule each side would be allowed two
hours.
Mr.. Merrick said they had to ask the indul-
gence of being heard by three counsel and that
as some important questions had arisen this
forenoon the time be extended another hour.
The commission granted the extension
asked.
THE COMMISSION ADDRESSED,
Judse Hoodley then addressed the commits
sion. He contended that the tender of the res
ignation to the judge in Ohio and his accept
rnce of the same by the judge in Ohio
was not an act OF the circuit court of Florida,
and therefore the resignation of Humphreys
had not been legally accepted, and he was con-
sequently all this time no ding an office of
profit and trust under the United States, and
therefore was Ineligible as an elector.
The effect OF the disqualification extended not
only to the election, but to the state which
oi,1tafions from debates when lie constitu
ton was arranged, holding that the election
Ofan ligibe elector worked forfeiture OF
the vote to the state. III was intended to pro-
tect several states against the llegltlmate use
state. Time had. not shown
that the evils from federal interference were
any less than our fOrefathers had apprehend-
ed. In 1887 five postmasters were among the
electors, and Clay introduced a resolution di-
recting the joint commission to inquire
int In friVa MT of
of the constitution. 1t then held
II was the duty OF congress to take testimony
and inquire into facts. The commission did
not find time TO ascertain whether the par
ties of the same name were the same individ-
ual, and as their votes would not change the
result, the inquiry was not carried but, al
though at the time the idea was not expressed,
although the committee did not think
that single disqualified elector vitiated the
whole electoral vote. Judge Hoadley quoted
the English authorities TO show that in the
event of the election of an ineligible individ-
ual the election was void. There was no
American precedent to the contrary, although
there had been wide range as to the effect
of such a failure TO elect upon
the other candidate. In the Penn
sylvania case, where the candidate
was disqualified, the election went back TO
highest candidate had been elected, and in
| other cases the party had been unseated with
out seating his opponent, The acts of con-
remedy where a disqualified electOr had
| been chosen, as what ii was pro-
vided state might select new
elector where one disqualified had been chO-
sen. The state having failed TO take advant-
age of the thirty-fOurt section of the revised
| statutes, having failed to remedy the non
electOr, there was a vacancy, and one vote
was, ne claimed, lost to the state. He referred
to the decision ofjudges in late Rhode Island
to the effect that the ineligibility of candi
dates worked a vacancy which could be filled
| by the legislature, and argued that
had the offices not been filed there would
| have a vacancy existed in that state, and Flor
| ida, like Rhode Island. had ample opportunity
/ to correct the error and I'LL the vacancy exist
| ing had she chosen TO avail herself OF 1t.
Mr.. Green desired TO call the attention of
the commission to the claim that the letter of
Humphreys to Judge Wood and the reply of
| the same were not an act of the court and the
certificate of the clerk of the circuit court OF
/ Florida, read this morning, showed that the
/ registration had not been made matter of
record in the office of the court. He discussed
the case under the first part of the order of the
| court to consider only the papers contained in
senate. He argued that the formal character
| of certificate No. entitled it to
some consideration. by the commission
| and contended that the statutes and action of
| the courts of the state were matters that the
| commission should inquire into to establish
| the illegality of certificate No. l. The colnmiS-
| Sion had before them in the third certificate,
/ not only the certificate of the governor, but a
tabulated statement of the precise number of
votes cast in each county in the state for the
| had the authority OF the execu-
tive and a. Judiciary and the legislature,
| all speaking in unanimous and united voice
| upon the question which is to be decided by
this tribunal. 1t might be said the third Ger
| tificsite did not arrive in Washington by the
| first Wednesday in January, and was there
/ fore too late. He cited authorities 10 sustain
his proposition that the clause was directory,
not mandatory. q The main fact was:
| Did the electors vote according to
| the constitutional requirement.? and the mere
/ transmission of their message 10 the vice
/ president was the indential matter and time
| with the prescribed limit Was not, of the es-
sepce ofthe transaction. The main point was
/ bof no vol chnnIH hQ rpQoiX Ql hqfOra the
count took place. He claimed that the lists
submitted with, certificate No: were eff
| fectual, and that delay in the per-
| formance of their plain duty did not
| prevent the performance of that
! duty. In conclusion, Mr.. Greene contended
that the laws passed by the legislature of Flor
/ ida since LanIiarY I. In relation 10 the recent