Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1893-09-14
THURSDAY. IA, 1893.
Thn O,Ferrall Case.

Some years AGO, IN Augusta county, q
candidate for the House Of Delegates re-
ceived the return as the member-elect.
His election was contested, and due notice
was given 10 him Of the contest, and due
preparation made TO render the contest
cfectual. Then the gentleman who had
been returned as the member-elect sent TO
1ae Governor letter resIgning his seat
Cor what be claimed 10 be his seat). The
Governor thereupon issued writ ordering
a special election 10 fill the vacancy which
be had assumed 10 exist. The DIsPATcH
made the point that in issuing this writ of
election the Governor had usurped the
constitutional right Of the House of Dele
rates 10 Judge OF the elections and returns
uf It's own members. Whereupon, in ac-
cordance with the revised opinion of tho
Attorney -(icneral. one of the oldest and
most accomplished lawyers IN the state.
The Governor revoked his writ Of election
and left il to the House of Delegates to
decide which Of the two gentlemen ciaim-
ing the seat was entitled 20 II.
So 1t thus appears that an able, distin-
guished, and accomplished lawyer may err
~ giving an opinion. Eve take 1t for
granted that the Governor had consulted
LIS Attorney General upon issuing a writ
If electionl And with all due Difference
10 audlsspect for Attorney General ScorT
We must take leave to say that his opinion
IN the OFFRBAIL case now under consider
alton seems 70 us TO be erroneous. 1t Is
based upon the assumption that there
cannot be vacancy" in the House OF
Representatives in the sense in which tho
word vacancies" is used in the Federal
Constitution until after the member deslr-
iBe e. resign emptics his seat. This is too
narrow view 10 take Of the subject. IL
the technical argument is sound-lf we are
thus to stick in the bark and rely upon
single word-we suggest that single
vacancy cannot be filed at all. seeing that
theFederal Constitution provides only that
II vacancies happen the executive au-
thority shall issue writs of election TO fill
such vacancies not a writ of election
10 Gil such vacancy.
What. then. is a vacancy in cOntempla-
ton Of law: What did the trainers of the
Constitution meang They did not mean
that member must empty his seat in the
House--nahe 1t physically and practically
vacant-make vacancy that is visible.
They meant that the same sort Of vacancy
mustexist as thOse vacancies IN the Sem
ate which exist when senator IS elected
for full term, or the same sort of vacan-
cy which exists IN the Senate when sena-
tors are chosen 10 fill vacancies" Mr..
in no IN = oh
States Senate. Is that seat vacant in con-
temptation OF law? Of course 1t is, or else
nobody can be elected to I'LL it. And yet
Mr.. HUNToS occupies it every day. There
must be vacancy, says the Attorney
General, before a vacancy can DO filled.
A plausible statement of the case, we adj
NIT. but one which fails to be held appli-
cable as soon as we are called upon TO
elect senator TO fill vacancy where no
such vacancy exists as that referred to IN
the Attorney Generals opinion.
What, then, We repeat. is vacancy in
the sense in which that word is employed
in the Constitution? It's such condition
of things as renders it impossible for the
person resigning TO hold the Office one
moment after the date which he shall
have fixed upon for his resignation to take
effect. That is certain which can be
rendered certain" Ergo, Mr., O'FEBBALL
can now resign his seat in the House of
Representatives, his resignation to take
effect on the 9th Of November next, and
yet the Governor can now order special
election TO be held the day after that re-
signation takes effect. United States SEN
ators, judges, congressman, State legis-
lators, even constsbles, overseers of the
poor, and all sorts of officials may resign
their offices. their resignation to take
effect in the future at time to be fixed
by themselves. Why make an exception
of members of the national House of Rep
fesentatives: