New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1877-02-15
SPEECH OF Mr.. sHELLABARGER.

SPEECH OF Mr.. SIIELLABARGER.
Mr.. Shciabargcr of counsel for the Republi-
can side next addressed the Commission. lie said
After you have carefully gone over the statutes and
looked them in all their parts you win be unanimous
in your opinion that the OF 1872 did govern in 1876
during the Presidential election, and that the
reyisory act OF 1e7O, which provided FOR q
canvass Of the returns by tho board and Gov
ornor, was repealed and not in force in 1870.
1t was also repealed by the repeating clause OF the Ses-
sion act Of 1870 These propositions arc all beyo3d
doubt think YOU viii also bc unanimous in yO.r oin-
ion that the election Law Of 1872 applies 10 all elections
and furnishes the machinery or means OF conducting All
The only other Proposition Is whether the c9nseqhces
OF the proposition / have gone over lead me TO any
ease in regard to this POINT, VIZ, that that
section OF the act OF 1870, which PROVIDES lof ming
vacancies in tho Electoral Coifge Is hereby also re-
pealcd That is the piedlcament are stated 20 have
placed ourselves IN Wien we say the act OF ls'2 Las
superseded the act OF 1870 including that section ID re-
gard 10 the Governors aGva4sng lie vote II Is an eX
1eyc by new act nm ess chr expressly SO
DONE else the rrpusnance % sch at IL woud be in
possible for the acts to stand together Another
rule of Interpretation Is this: That ~ eases OF dOnbJ
either absurd or hur:tui to The public welfare
thht lneillrlu3Pn WI ~ 80 70, 81 H.. Ist mss
escape the conclusion that, under the legislation %
Lurisana, Louisiana Gisfranci;isedi Ard liuyu"
the gentlemen the other side WHO may suppc6e ms
act Is repealed, Dy when O4iy tie E'c"%! 'oIcSt can
BE- filed show some statute mt forces uHOi You
either by ditci PROVISION or any lalr ih!ci.irt4tion,
in his plUc.ss oil Legislation There is nothing repeal
tna sei ION which provides the filling vacancies
under Tie law oi 1865 and So except the repeating of
the clause the 1872, which says tia; l cther
acis ON The slleci OF laws hereby repealed
H. II possible Tor 1870 stand cUns!s nj with
that repeating clusci il II 49, you are bound NY youf
0afh AID by all rus OF Interpretation 10 let II stand
oonis, ioucr Payne inquired the counsel whether
there any provisions OF The act Of ISIS that inc
counsel claimed we're not ecd 10y the repeating cA''o
VI 1872 except those nameGi
Mr. sneaoa:Ser stated in reply that he had not gone
over Tie law ~ 1863, at of 1870 n AL IL pi 4;i
could not therefore answer Che question 'tc-"iiiiy
int he faid understand mat examination wal re-
sG finding thai all to provisions I the hci OF loo
superseded without exception ~ lAe REVISION "a
Commissioner Hoar said that Tie law IF 1870 was
revision OF the wOe statute HY ana contained pONs-
a d now they hall certify tler acts. Sc.
lir EyaIi; sad hc would like "a suggest 20 Connie
l,,;. and iii ccc Law .! lsb- which arr $50 indo-
pendent acts. FOUND al the session laws 81 'h' S-i' '''
Az ESTABLISHED STATE GpNrIlS 'iENr
Mr. Sueabar-cr continued as follows: SOW, iyhe tie
language @. the Supreme Court " the United State. II
T. in these words:
II rest, WITH Congress to decide wha. Government the
established one ~ SiAie anu ~he1 ~. 9e!"o ..i -
UG1n TIE snthcri. Of tie ycrlmgut under wmeh hey
Gis b. he Dron r Coast q. ACCESSION
ulIu every department 81 ~ no Ih'h an" ''ui'
L5t oc q,c-'i - 90 b. Any political iuJula'. ,,.,.
Ih. language g. absolute AHA Tu' s'Nt OF thS "ip.S
quest 0r, nness the suggestion ne ~ JUICE LfnmbI
TO my friend Who preceded ne - an aSN tr ~ sd
.ston was J:t i was Congress to G,"riins' an
he Here We are IN Congress Tor tht pi0st 81
having you do.t1nIac tie t:IS the clher W a., NON'
plainly and man'ic>ty the SUGGESTION : i9GhL,H ~
error; first because II you we're congress vim aI h
sovereign powers OF COuLlcsH, d1i could maze tW SUI
you could not maac your act n F1s J0co e.. retroactive
Az t. the iuclibity all gtd TO pe "i0dsht - J." Ger
talu OF these electors by the iacs ndt soe uI te bcd
state offices At wa not The detigh Of the CONSTITUTION
permit state by "h, mttnHa TO ,Vlu 70 VI aup
from thr qualifications OF The Presidential clccl"s
Another rule al construction Is that wren the Con:tu-
ton defines the circumstances under which tue fshi
may be eNelclsnn or pehaly pay re ini-
hibton against legislative interlcrcbcc and IL
has been nald that where the Constitution Gcihitt
tnr legislature to change supcrddd to that unless the
power 10 is expressly given given by Implication
OF Mr. P.ncGuey OF the trainers of tie Constitution,
how 1t that so few disquifcatons were I'M
pos ed upon the holding OF the electoral Office.
Commissioner Thurman inquired whether it would DC
unconstitutional for state 20 require the elector To bc
Il citizrn oi the state In which he resides.
Mr. shciibarger said that IN his judgment II would he
Commissioners Thurman asked whether state could
choose an alien for oectOr or Senator.
Mr. sheilabaIser replied that II there was any IN
eligibility the part OF elector IT must be such ~ the
Constitution OF the United States has Indicated The
Constitution has not prohibited IT,
org.nizrd was legal board as its members. IL Is
SAID because 1t had but four when there ought to
have been Gye IL rendered Incapable of action Mr.
Shellabdrger quoted several authorities showing that
ihis not a defect In their action.
as to whether this board full, and therefore the
vacancy was mere absence, the counsel replied mat
these cases not directly on all Tours WIN tbe
ease bar the he had read. because In most OF
them the absence was not by reason OF death so as
create actual vacancy; but all the reasoning
OF the court, said he Is entirely IN harmony Wlth our
pOsitIOu--D VIII, That the puDlC interests VIII ne
Imperfect cstoppcd by absence whether that absence
Is death or what not The provision OF the law creating
board s la its very nature aud by the necessities OF
the ease, directory, and 1t does not go to the essen
tal power III that You must KNOW that
from the very common sense OF the case, be
cause how you to test whether "A man Is
Democrat Republican, How you 10 find whether
VIII tomorrow Ii Is uo-t obvious, submit, that mat
is directory provision 10 be abided BY ana performed III
good faith, and IL there for Its being
omitted In this case, then II Is an act To be condemned
but II does not 20 to the jurisdiction of tho party
| FUNCTIONS Oh THE RETURNING BOARD.
To the proposition that senator Carpenter
seemed To attach consequence to, though do not
know that any body else his side specially dis
cussed II, and it Is the proposition that these func
| no's Of the Returning Board are judicial In
their nature, that they cannot, under the Con
| stitution of Louisiana, be conferred. aud hence
| this law goes by the Board for that reason.
II has been decided that IL ID valid law, and that the
quasi judicial powers that conferred upon the Re
turning Board are entirely competent To be conferred
under the Constitution OF Louisiana come now 20 the
real question In this case. and really the only question
| there is, aud that ia decided by what you
and that IL, whether not 1t 10 competent
for you behind the action OF the Returning Board
OF Louisiana for the purpose OF finding out what hap
pcned la It's exercise VI the Jurisdiction bestowed by
statue. Will restate what has been decided In
Florida know that the logic and law OF that case
legal principle at ALL except the question whether the
Louisiana Returning Board was one authorized by law
by valid law u exercise the Jurisdiction that 1t under
| took 10 exercise.
II Is gu insult to your intelligence 70 say that because
counters aud mere ministerial officers. because