Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1888-01-26
The Houston.E Ellis Case.

Inc houston EillS OdSC'
We acknowledge the courtesy OF the
Wing in reproducing in full our short
article on Tuesday on the HoUsToN-
ELLIS contested-election case ; and If we
were going to deny the soundness OF our
neighbor's argument we might follow ITS
good example. But inasmuch as the
Whig assumes rs fact what we do not
admit TO he fact, we must ask that this
question of fact be disposed of first. Our
neighbor says;
"Can law which was passed in due
form by the Legislature under express
grant OF authority by the Constitution
he properly termed an unconstitutional
law ?"
We answer emphatically in the mega
tive and we repeat what we said on tins
point last week. The constitutional pro-
vision (section % of Article W is that
the manner of conducting and making
returns of elections and of determining
contested elections shall be prescribed
by law only ia cases not Pr0rided FOR
speciahy by the Constitution. Now,
what cases are specially provided for by
the Constitution Why, in Article v,
section 2, that instrument provides how
contested elections for Governor shall be
decided (including provision for legis-
lation on the subject, and in the very
next artice-Article V, section lit
provides that leach house of the Lee
gislature shall Judge of the "election "
of its members. Not the Legislature
not the two houses tOgether-but leach
house" must Judge for itself. Clearly,
then. this is one of the cases which the
Constitution itself provides for, and
therefore section % of Article V. does
not apply. Unless there is "contest-
ed election" in the Senate that body
would have no occasion to judge OF the
selection of its members. They are all
seated mem. CON. But whenever sena-
tor raises a question as to the election or
qualifications of member, that is
contested election and the Const;tu-
ton itself provides that this "contest
shall be decided by the Senate itself.
Note the facts. The Constitution
leaves it to the Legislature to provide
how all contested elections shall be de-
cided except contested elections for
the Legislature and for Governor
the lawmaking power. In the case
of Governor it provides that the
contested election shall be decided "by
like vote that is, "by the joint vote
of the two houses of the General Assem-
bly," And "the mode of proceeding in
such cases shall be prescribed by law"
But when the Constitution comes to
contested elections for the Legislature,
il provides that each house shall decide
these cases for itself. each house" it
Says, "shaU Judge of the election,
qualifications, and returns of its mem
bers." This does not mean that the
House of Delegates can by law
or otherwise have a voice in deciding
contested elections for the Senate, but
that each house "8hGU" decide its CON
tested elections for itself. In the same
sentence the Constitution provides that
each bouse may punish its members for
disorderly behavior and with the concur
renee of two thirds expel member
Now whatever power the Legislature has
under the first clause of that sentence
that body has under the second clause,
and no more. The Legislature cannot
pass valid law providing that men,
Der Of the Senate may be expelled by
majority vote nor prescribing punish
ment for disOrderly behavior in the Sen
ate. And it necessarily follows, it seems
10 us, that the Legislature cannot pass
valid law prescribing a mode of proceed
ing in contested elections for the Senate.
Again In the case of Governor the
power TO legislate is expressly granted.
Erpressio pius CrcluSiO est ateyi,tS.
The fact that this power was conferred
in the one case and withheld in the
other argues strongly in favor of our
view Of this matter.
II the Senate chooses to adopt for its
own purposes statute providing how
contested elections for that body shall be
decided, Of course nobody could object.
1t is sole Judge of the elections OF its
members and may ascertain the facts 10
its own way.