New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1877-02-24
NEW ORLEANS REPURLIOAN. SATURDAY. FEBRUARY "a 1871

pose this act is repealed, by which only the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 disfranchised in this process of legis-
latien. There is nothing to repeal that Sec
ton which provides for the filling of vacan-
cies under the law of 1868 and 1870 ex-
cept the repeating clause of the act of
1872, 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are hereby repealed" Is it possible for the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.
tariOn, 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must not make it repealed by implication if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 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 is 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
| electiOn2 wanttO add to Mr.. StOughtOn's
argument, by way of refreshing your mem
| DRY, 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 intentH 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-
| tifcate.
MIR. Commissioner Payne inquired of the
counsel whether there were any provisions
of the act of 1868 that the counsel claimed
were not repealed by the repeating clause
of 1879 except those named?
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 oategorically.
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 HoRr said that the law
| Cf 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
general election law of 1868, and an cleo
toral law of 1868, which are two independ.
emit acts, found in the laws of the same year.
Mr.. Shellabarger continued ss 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 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 are appointed, az
well as its republican character, is reeOg
nized by the proper constitutional author
| ity, and its decision is binding on every de
| of ha ond amid moi
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, will make {
} familiar quotation from speech made by
Charles Pinekney on bill that was pend
ing in Congress in the year 1900, proposing
to create q commission like this, and wan
: to show by it that it was not the design o
. 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 Il
Congress no right of interference or con
troll over the election of President; tina
Congress could not object to any vote o
{ say whether it was cOnstitutionally given
but that was a matter left to the State Leg
islature and with that alone rests til
power to look into the matter. He says tn
= disqualifoations against any citizen bein
an electOr are very few; they are that
officer of the United States shall be a
} electOr, and that no member of Congress
4 shall be an electOr.
{ Mr.. Commissioner Thurman inquired
| whether il would be unconstitutional for
! | State to require the electOr to be cltizel
D of the State in which he resides.
. Mr.. Shellabarger said that in his JUDI
: ment it would be.
q | NJ unTninaiOnaY Thurman aakp
= whether State could choose an alien IL
4 elector or Senator2
q Mr.. Shellabarger replied that if thel
: was any ineligibility on the part of an ele'
tor it must be such as the constitution {
;. the United States has indicated. The col
9 stitution has not prohibited it; it has onl
o made the two prohibitions already reterre
to. 1t was long time doubted wheth'
!, the States could appoint their electors
Q an act of the Legislature; but that was sc
tied long ago that there was no limitatlC
a of the power of State in regard to Il
% method of appointment, but that there Wi
u a prohibition in regard to what the quail
o cation of the electOr should be. The ne
J. question is whether the Returning Boar
% as organized, was legal board as to
q members. 1t is said that because it hi
% but four, when there ought to have be-
], five, 1t was rendered incapable OF aotl0
"a Mr.. Shellabarger quoted several autho
20 ties, showing that this was net defect
10 their action. In one of these cases 1t "
1t shown that board composed of ten pt
q sons, with power to fill vacancy, did, BY
ID vote of five of its members, remove sup
50 intendent of schools at time when the
a was an untitled vacancy in the board, on
AJ ground that majority could act, and
30 was q majority of nine. This was Ga
IN where the facts were much like those
In are dealing with. 10 the case quoted
It, number of persons were fixed by statu
OF There was vacancy at the time OF the
's- ton, and there was power to fill the yaei
n cy in the body. 1t was also case VIII
or they failed to fill the vacancy, and whe
d. had they filed the vacancy, the vote
en- which the act was done, viz: five, would ]
tie have accomplished the removal. In
's, case the court was brought sQuarely to
a question whether board thus constltu
could act. 1t is the exact case with VIII
se- we are dealing.
is- In response to a question from Comm
lat sioner Abbott as to whether the board '
di full, and therefore the vacancy was m
nd absence in the cases he had examined,
)v. counsel replied that these cases we're moi
ter directly on all four with the case at ba
rus the case he had read, because in mos
Dv- them the absence was not by reason
on, death so as to create an actual Vaea1
ich but all the reasoning of the court, said
by is entirely in harmony with our position
nd | wit; That the public interest will not be
ro- pariled or stopped by absence, whether
ln- absence is death or what not.
1as Commissioner Abbott put the ques
of because am quite sure there are resp
sly | able cases where court has held that q
the iority may act if the board is full, but
70. action of a majority will not bind.
ing Mr., Shellabarger-Th provision is, il
act very nature and by the necessities OF
cry oaae direetorV and IL does not 90 to tn