The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1877-02-16
la Fow of che Lav.Points I'm tho Lo'sisf-
ANA Case.
During Mr. .Tfumbups speech on We'd

Justice Miller Allow me to make point
which came up IN the Florida case, and to
which ] attach good deal OF importance.
II the only thing that q Republican return
ing board can do Is to determine whether
certain polls are to be counted or rejected,
your argument Is perfectly good one. But
is It not also true that the Jurisdiction Of
the Board is commemorate with the duties
and functions which it has to periorm3 And
IS 1t not true that the one main fact which
1t has to perform Is to ascertain who are
electors and to declare that fact2 And can
it be said that II that Board mistakes the
law on some points while discharging that
function that mistake Is SO 1ur:sdietional as
to vitiate its return?
Mr.. Trumbull: No, sir; do not contend
for that.
Justice Miller: Then my suggestion Is
that the Jurisdiction OF that Board Is to as
certain and declare who were elected, and
that all below that IL the exercise OF the
means and mode Of procedure.
Mr.. Trumbull: To that cannot quite
assent entirely to the proposition that in
any matter over which this Board
had jurisdiction and discretion to net
its Judgment Is not TO be disturbed;
that the point which / make is whether 1t
is it's duty to canvass and compile the vote.
1t is also its sworn duty not to take iuris-
diction OF the question OF rejecting votes
unless foundation is laid for it. We also
offer to prove that the Board was not so
constituted as to have Jurisdiction OF the
| canvass at all because the law declares that
five persons, to be elected by the Senate
from all political parties, shall constitute
the Returning Board OF that State, and in
| sist that it was not competent for four per-
| ,;rxtt oofiF
| the Board was full, but where duty is to
| be performed by five persons OF different
| political parties it is no. lawful to perform
| it By four persons all OF the same party.
| do not insist that it was necessary for
all the members to be present. but do it,
sist that all must have had an opportunity
| to be present, and that when the Board had
authority to supply vacancy it had no au-
| thority to 90 OH and make the canvass with
out supplying that vacancy. 1t was not
fair. II was not what the law intended,
and the Board was in no better position,
failing to supply the vacancy, than would
have been II il had supplied the vacancy,
and then three or four Of its members had
got together without giving the fifth man
notice Of their meeting, or ah'ording him
an opportunity to meet with them, and that
would have been fatal.
| Senator Edmunds Your point IS that no
step could be taken by the Returning Board
until the Board was full.
! Mr. Trumbull: No step could be taken
until the Board was full, they having au-
thority to ill It. Possibly different rule
might apply if they had not the power to
! Ell e., vacancies. Rn. the power being there,
and the constituent elements OF which this
Returning Board being required to consist
OF persons OF different political PARTIES. I
insist that the Board could not so on With
out filling up the vacancy.
| The Presiding Justice notified Mr.. Trum-
bull that his time had expired, hut in con-
sideration of the various Interruptions to
which he had been subjected some further
time was accorded to him, which he used
| in presenting the objections to the electoral
votes of Brewster and Leyiscc, who held
Federal offices at the time OF their election
Justice Bradley: Do you intend to prove
that they were Federal ottice-holders at the
time they were elected!
Mr.. Trumbull: Yes.
Justice Bradley: And that they were Of
| fce-hoders at the time they cast their
votes?
Mr.. Trumbull: No. l understand that
the proof Will show that Brewster rendered
his resignation on the 4th Of November,
and that it was accepted on the 10th, and
that very singularly it was accepted to take
effect on the 4th, some twelve days before it
was received at the Interior Department.
Senator Thurman: Does not the law OF
Louisiana provide that il an elector who has
been chosen does not appear by certain
hour the remaining electors may proceed TO
fill the vacancy '..
Mr.. Trumbull: There Is such provision
in the act OF 1868.
Senator Edmunds: But you say that that
law is not in force.
Senator Thurman: II that law was in
force, and il Brewster did not appear OF
the time, then was there vacancy under
that law?
Mr.. Trumbull: No, l do not consider
that there was. The statutes OF the United
States make two proyisions-one is for fill
ing any vacancy that may occur In the col
lege when the electors meet to give the cleo
toral vote, and the other is when an cleo
ton has been held and No choice has beer
made on the day prescribed by law. 1r
that case the elector may be chosen on {
subsequent day. Here there was no choice
1t was Just as il two persons had received
the same vote, or as II there had been nc
election on the 7th of November.
Senator Thurman: Is not the real ques'
ton whether there was any power in the
electors to fill the capcies ? Suppose these
persons had been qualified, but had not ap
peared2
Mr.. Trumbull: Then, II this statute o
1868 was In force, the other electors coule
have filed the vacancy.
Senator Thurman: But suppose that Law
was not in force2
Mr.. Trumbull: Then there Is no law tc
fill the vacancies.
Representative Hunton: Except b. cleo
ton.
Mr.. rrumbull: That brings up these
complicated statutes. The statute OF 1877:
provides for filing all vacancies by popular
election. II that statute was in force thet
these vacancies would have to be filed by
popular election. II the law OF 1868 wa!
in force then the absence OF these two elect
ors would give the others authority TO III
the vacancies, provided anybody had beer
;. elected. II the votes OF Leyisee and Brew
ster are to be counted. and il a man Is to b.
made President OF the United States by
counting their votes and the votes OF Lou
isiana, then 1t Is done by the mere forms
law, contrary to the principles OF the Con
stitution OF the United States, and in viola
ton of the rights Of the people.
Senator Thurman: Is there any statute o
Louisiana that requires the certificate OF tn
GOVERNOR
Mr., Trumbull: There Is statute which
REQUIRES the Governor to commission al
officers except certain persons therein
named, md which does not include presi
Dental electors.
Senator Thurman: That Ia the law 0
). 1872. But Is there any statute requirln:
him TO issue certificates to presidential olec