The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1889-03-18

only partly Governor, not tully so, no
entitled 10 enter into office, The Con
stItution Is not, In section is article vii
making provision for the discharge o
i the duties Of one who, under no cir
, cumstances, Is entitled or ready TO per
form such duties himself,
The President Of the Senate acts or
the death Of the Governor or on the
conviction on impeachment OF the
Governor, or on the failure OF the
Governor to quallfyIor on the resigna
ton OF the Governor, or other disability
Of the Governor, He must be, in any
or all those occasions calling on the
President Of the Senate to act, one who
in law can be deemed o Governor. But
as yet no one has been declared Cover
nor,
Such declaration Is, under the cases
cited from New York and our decision
in Gotf vs., Wilson, indispensable to give
any one title as Governor and none Of
the candidates having been declared
elected NO one OF them Is such q Cover
nor under that section Of the constitu-
ton as that the President Of the Senate
can be called on to assume the functions
in his stead, which functions such
Governor could not himself assume be-
cause OF such disability, Again, do
not think the non-declaratlon OF the
result Of tho election Is q disability Of
the Governor such as Is meant by the
constitution, 1t Is simply non-action,
or incomplete action by the agencies Of
tho law assigned to vest the title In the
candidate, It Is not like insanity, con.
ylCtion OF the officer for crime, continued
absence or other disability connected
with the person OF the Governor,
Death, conviction on impeachment,
failure To qualify or resignation would
produce vacancy and Il would seem
that the language Tor other disability
means something OF q different character
from those cases named, something at.
taching to the person OF the Governor
and disabling him and this construction
seems confirmed by the after language
Of the section providing that "the Presi.
dent OF the Senate shall act as Governor
until the vacancy Is filled or tho disa.
bility Is removed, thus using the words
"yaCancy" and disability" as meaning
different things, vacancy referring to
death, conviction, failing to qualify and
resignation, but disability referring to
something relating to the person and for
the time being disabling him, notwith.
standing the use OF the word "other."
The words "shall continue to discharge
the duties OF their respective offices until
their successors arc elected and quail.
fed" seem TO lit this case, where the
proceedings leading 10 the completion
OF the election are yet pending, but will
end In the declaration OF q result when
the Governor will come on 10 qualify;
whilst the other section as to the Presi.
don't Of tho Senate acting seems to pro.
vide for different class OF cases, that is,
where the election Is complete, but there
is q vacancy caused by death or other
disability preventing his action. And in
I.owheIne's case, 18th Graf. 03, the court
under similar provisions In the Virginia
constitution held that the clause relating
TO tho Lieutenant Governors acting In
case OF death or other cause disabling the
Governor, did apply only to a case not
provided for by the section authorizing
officers to hold over. Again, this posi-.
tion OF President Carr assumes that
somebody was elected Governor in No.
vember last. His petition says either
Fleming or Golf Is elected. The asser.
ton OF his petition that some one was
elected, even Is not denied in respond.
ent's answer (buL 1t Is denied) could
not be taken for true, for 1t asserts
a fact which, legally speaking, can.
not be yet known, and Is not
susceptible OF proof hero. There Is no
declaration OF the result, aud the returns
have never been approved or published
their contents arc yet sealed and sacred
In the keeping Of the join assembly,
awaiting publication, Can VIC or PreSi.
dent Carr say whether or not they show
an election? They may show the vote.
Is II clear We can presume because an
election was held some one was electedR
The Judge, delivering the opinion in
the Court Of Appeals Of New York, in
People vs.. Crissy, supra, says, "at this
point 1t appears needful to determine
who was lawfully the Alderman OF the
Seventh ward, entitled to occupy the
seat for which Morrissy and Fleming
contested. We cannot say that either
was elected. It's argued that ono must
have been. That does not follow. A
canvass In which all or a majority Of the
inspectors concurred, or an investiga.
ton bya court OF justice, in which the
votes actually and honestly cast were
correctly counted might have resulted
In a tie. While that Is not probable 1t
is certainly possible. We cannot know.
We have no legal evidence before us
from which We can give the seat to
either by virtue OF the election. He
further said, the votes are not here for
US 10 count
The authority appointed by law has not
acted, has certified nothing, and stands
equally divided asserting contrary re-
suits both Of which cannot be true. He
also says "for us nothing Is possible ex.
cept TO treat the election rs failure so
far as either party seeks to found right
upon 1t and deny TO either any resulting
benefit from that source" Under these
principles the claim Of President Carr
that some one was elected and that he
can stand on that iaCtas a foundation to
entitle him to act, Ia untenable, as for
purposes OF this case, the election Is a
failure or has no yet known result; and
he must DO denied any resulting benefit
from that source. And II It should up.
pear there was o tic vote, whereby the
Legislature would elect that election
would date and confer title only from
the day Of election, and not relate back
TO the election In November, and thus
prove that no person was then elected
Thus no contingency has arisen, no con.
dition exists such as 10 call upon the
President Of the Senate 10 act as Cover.
nor. The clause Of the Constitution on
which he rests 10 au exception TO the
general rule fixed by another clause de.
claring that all officers shall continue to
discharge their duties until their success.
sors are elected and qualified, and as h0
does not como within that exception hG
cannot act, but under said general
rule OF section Article ~ OF the
Constitution +. Willis Wilson has
the right TO continue 10 act as Governor
until his successor shall come In. We
are In this cause called on by both sideS
10 decide not only whether Carr has
title TO admit him, but also whether
Wilson has title 10 hold over and as we
see II We are compelled 10 pass on VIII.
sons right TO hold over; for II seems
nnFthin undnr thpHA two f1foviBionH oi