The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-04-29

This Is what tho commission itself decided.
that they had no power to 20 into the merits Of
the case. and no power to do anything moro
than the mere ministerial act OF counting up
the figures as returned by the State Board.
1t is perfectly truo that II the Constitution has
given to Congress. or any other tribunal, tho
power to decide the question of the Presidential
title on the merits. and as n judicial net. no
court car 10 into 1t again under the quo war
rantO bill.
But it seems clear. land it certainly is so under
the theory on which the majority OF the Eec-
toral Commission proceeded that Congress has
only ministerial. and no judicial power in the
promises.
" The President OF tho Senate
shall open the certificates. and the vote shall
| then be counted"
| This Is mere ministerial duty. n mere mat
| ter of figures. Certainly the Electoral Commits
sion had only tho powers Of Congress las Just
duotcdl even II 1t had any powers. The only
possible ground on which the consttutiOnality
| of the Commission can be sustained Is that the
powers Of Congress. with which it the com
missonl was invested. were purely min
isterial. since judicial powers cannot be dele
gated II. then. the law creating the Com
mission was constitutional. and II its own
! theory Uhat Of tho majority WAS correct. as
| think II was. then the only power or duty which
| Congress or the Commission had. and the only
| power which has been exercised in the prem
ises, is the mere counting OF votes. not an in
vcstigaton OF their legality.
How. then. can this mere ministerial net. not
touching the merits Of the cnse. be pleaded in
bar OF an action to try :he title any moro than
the action Of our state Canvassing Board can be
pleaded in bar OF quo warranto in the State
cours2
We all know that such actions are brought.
| The People agt. Cook. somewhere in New York
Reports tabout Sth or 9TH. was a case in
which the State Treasurer was ousted. although
| he had the certificate Of the Board of State Can
vassers.
The point il that the Constitution Of the
United States does not provide for any judicial
inquiry into the title Of the President and none
such has been had. and hence what has taken
place is no bar to an action under the proposed
| law.
| may be mistaken. but 1t seems very clear TO
me that this view of 1t is correct.
As to the power OF Congress to pass n law au-
thorizing the title OF Federal officers to be tried
in proper action. 1t seems to me that II is clear
under the clause which provides that the iu-
dcial power OF the United States shall extend TO
" all cases in law and equity arising under this
Constitution"
Whether an officer provided for in the Con-
sttution is rightiully in office would seem to be
emphatically question arising under the
| Constitution"
In fact AS to certain Offices Congress has al
ready given the Federal courts the power to en-
terrain actions in the nature of a uuo warranto.
lSee L. =. r. s.. section sos. subdivision 49, and
section 629, subdivision l3 conierring this uris-
diction on the U. S. District and Circuit Courts.
This jurisdiction goes on the questions OF race
md sOta md no Dr.a
President. &c. but If it may be done as to one
Office why not as TO anotherp
II has sometimes been suggested that the ju-
| dicial power does not extend to trying the title
to the chief executive Office. because II is an
tabished principle that the courts cannot inter-
fere with the executive or administrative duties
of n coordinate branch OF the Government-the
President.
But 10 determine whether a man is the Presl-
dent or an usurper does not seem TO be inter
ferng with executive functions within the rule
In Wisconsin. ii has been held thht the title to
the Office OF Governor might be tried in the
courts. and it actually was done. and the in
cumbent ousted.
This is the same in principle as trying the
title to the office Of President
These are hurried views. only by way OF sug-
gestion.
But one thing is certainly perfectly clear and
that is that the Electoral Commission never
passed on the question whether or not Hayes's
election was fraudulent. We often hear it said
that Mr.. Hayes's title has been passed on by
court. and that this ought 10 be the end OF 1t.
both in its legal and moral aspects.
Even where n question is decided by COM
petent court. after full investigation and upon
the merits. it sometimes happens that evidence
is afterward discovered Tor perhaps existed at
| the time. but was not sufficiently attended to on
| the tra) which makes it against good con-
| science for man TO retain property which has
been awarded to him. though his le0dlttle may
be- perfect. For example. an estate is devised
by will. and the will admitted to probate. The
legal title becomes perfect But suppose il is
afterward discovered that the instrument is
forgery. and that the witnesses have sworn
falsely. will it be pretended that the dcvsce is
in sound morals. justified in retaining the
estate even though a competent court has de-
cided that II is his Ordinarily. however the
decision Of a court upon conflicting evidence as
| to the facts would satisfy man s conscience as
| well as give legal title.
But the error SO commonly prevalent in this
case is TO consider the decision Of the Electoral
Commission TO be that OF court. or as having
gone upon the merits Of the case.
That body. by its majority expressly decided
that it could not try the case on its merits. and
| II did not. 1t held that 1t could only take the
returns as they were made. Its action was as
| purely ministerial as that Of our Board Of Su-
| pervisors acting as canvnssers.
1t seems idle. then. to talk about the merits OF
Hayes's title having been passed upon by COM
petent tribunal.
Nothing Of the kind has been done. and the
action OF the commission cannot be pleaded,
! either in law or in morals. as having done any
| thing more than Ito use the words Of the Const-
tutonl counted the votes" and decided that it
| could not 20 into the merits.
| 1t il true that in some cases in which there
were two sets Of returns las in the Florida easel
| they decided that one set OF them were the
true and lawful returns. but this was only
| deciding that the latter were the returns made
| by the legally established Returning Board Of
the State, not that the returns themselves were
correct and free from fraud
The Words Of Witness.
Fran he PiHJnqh Pot
Mr. Malcolm Hay said, at the outset OF the