The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1881-07-15
rlecs,ng united states Senators The
Law.

yidlng for the election Of such senator's
The Federal Constitution provides tna'
un,,ed states senators shall be elected oy lne
.Legsslatures . OF the several States Tne
act az Congress Ia question was OF course
intended TO carry out this provision OF toe
constitution. But n 1t provides .hat such
election shall be made by scsae body OF mer
which 4 not +" Legislature" then OF course
ItIsuneonstIiuiional. The New York Herald
aecordipc 10 the loose notions OF constltu
tional construction which prevail 10 the
porthorn section Of the Union, Winds up ~
article as follows:
.We raise these as questions OF genera
and timely interest rather than as having
anv immediate practical bearing on tue con.
fest now going on 10 Albany: FOR ever Y
Tho election by Joint Assembly be contrary
10 the Federal Constitution, tne senate y
not Iikely 10 reject q senator regularly
eecled by such Assembly"
The Herald only followed other journals
II did not "raisev the question at all. But
that IL not important. Its supposticni
however, that an election "contrary to the
Federal Constitution would nevertheless
be ratided by the United States Senate, !;
$ rs own, and Is, too, poor compliment &c
that body. Let the question be raised 10
the Senate, aud that body would refuse "a
seat any person thus eiected--that IS, Of
course. II its judgment should be that the
person was uneonstllufonalry chosen. The
Senate IA not what 1t used to be; but 1t I:
still body that would for the reason given
unanimously reject claimant.
The Herald further says:
"Tbe majority OF the two bodies TO-
gcther is very different from a majority oil
each, Tie majority OF Joint session can
not pass q bill or perform an act OF the
Legislature. Can it elect a senator? Can
senator be lawfully elected by the Assem-
bis alone without the concurrence OF the
Seuaief Would this be an election by The
Legislature! And yet this may be result
OF the present plan. The Senate is com
posed OF thirty.two and the Assembly OF
one hundred and twenty.eight members,
making total Of one hundred and sixty,
of which eighty-oDe are majority
The act OF Congress says that 9
: majority OF the votes OF the joint assembly
shall elect. Now this majority, even when
the Senate Is present and voting in Iul
force, may be made up entirely OF assem-
blymen without a single senator. AND
when this happens Federal senator is cbo
sen by one branch Of the Legislature. Nc
one win claim that Congress bus any consti
tuiional power TO pass law expressly ant
opcnly yesting 10 the Assembly alone th'
right OF choosing senators, thereby deprv
ing the Senate OF its voice in the matter. Ii
II any less unconstitutional 10 work The
same result by indirect meansi"
The Herald misses the point. From The
fouudation OF the Government until now
il has always been heid-as it must neces
sarily be held IL scnstors are to be elected
at all when the two houses are controlled
by different parties-that majority of thu
votes OF the too houses Of the Legislature
Is all that Is necessary TO an election, 81
there be joint vote, and there be voting 1
majority OF the members OF each House. i
does not matter that the majority received
by The successful candidate be made vi
altogether OF members of one house
All that is requisite is that II bt
majority Of the votes cast by the two
houses, aud, as we have said, that majority
OF each house be present and voting. L
this were not so, a Democratic Senate tying
a Republican House OF Delegates nigh
forever prevent the election OF UnileC
States senator. II the two houses OF tht
New York Legislature assemble together
and cast joint vote, and Mr.. CoNKLING re
ceives eighty.oDe votes, all cast by the lower
house, he will have been constitutionalll
elected United States senator. But eacl
house must contain quorum OF its Owl
members. In other words, the body elect
ing must be legislature; and there canno
be legislature II either house lacks ever
one vote Of quorum.
We conclude, therefore, that the act 0
Congress Is not unconstitutional in that !
provides that the person shall be " declared
duly elected" "who receives majority o
all the votes Of the joint assembly" Blu
we think there can be no doubt that the sait
act Is unconstitutional in that it provide
that such election may be made II there b.
present and voting ga majority Of all tb
members elected TO both houses" Their
ougat to be, aud must be, "present ant
voliugv majority OF all the member
elected TO each house; but IL so May b
"present and voting" then a majority o
all the members elected to both houses i
sufficient TO render an election valid.
We have no doubt that this was the con
structlon put upon the act Of Congress b.
its trainers. For it is plain that II there b
present and voting majority OF all th
members elected to each house, there mus
necessarily be present aud voting a ma
iority OF all the members elected to bot
houses. The word +" both " was seen AMI
known TO be right so far as the election OF
senator was concerned provided maiorit
OF each house was present and voting, ant
IL was. therefore, the most natural thing II
the world that the same word "both
should have been again employed whel
Congress undertook to describe the bod
capable of electing United States senator
Generally, though not always, too, it will b.
found hereafter as it has been found hereto
fore, that when majority OF both houses
present a majority Of each house is present
and so that the election Is valid one.
-
Ohio.
The Democratic State Convention OF OH
uy~a.oeao., Iact -. al Tor Go