The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1893-11-22
GREENWOOD-S EELY CASE
The Hearing at Last Held Before the
Commission.
The LOwe-Seaman Case also Argued
Judges of General Election VIII Act
in The School Election.

mission in the contest case of Joshua
Greenwood VS. Orange Seeiy was
brought on yesterday morning, and,
before night, that case and the one
Of Lowe VS.. Seaman were fully argued
and submitted to the commission for
its decision. The case of Dougall VS..
Robertson was continued over until
10 o'clock this morning
In the Greenwood Seely hearing,
Messrs. Farley L. Williams and A T.
Schroeder represented the former and
Afessrs. E. W Tatlock and Arthur
Brown the latter. Before the contest
was taken up, the attorneys agreed
that since November 18th, Orange Seely
has met with the county court of
Emery county and performed the
duties of a. member thereof.
After fling a telegram from the at
tOrney-general at Washington, dated
Nov. 18th, in which Seely's appoint
ment is affirmed and no mention is
made of any resignation, and after the
Seely, published in Fridays Herald,
the argument was opened by A. I.
Schroeder on behalf of the contestant
He showed the position taken by the
contestant, which is in substance as
follows: That the resignation of See
ly made on the 18th day of September
did not take effect until it should be
accepted by the President of the Uni
ted States and a successor qualified.
In this connection he called atten-
ton to section 81 of the laws of Utah,
page 237 specifying that the term of
Office Of the probate judge was for
period Of two years and until his sue
cessor shall be qualified" He read
from Meacham On public officers to the
effect that in states where there is a
statute in the words Of the one quoted,
that there no resignation can take eff
feet until it is accepted and the sue
cessOr qualified
He read from the case of EdmondS
VS.. the United States, 103 United States
AIS. where the Supreme Court Of the
United States held that although an
officer may have done all in his power
to resign an office that yet the resig-
nation is not completed until it is
accepted and that until that time
mandamus viii lie to compel the Of
fcer to perform his duties. Other
cases were cited TO the same effect
The next question discussed was as
to whether or not Seeley could re-
ceiVe the certificate, even though he
were still the probate judge, upon the
presumption that he could resign his
Office of probate judge before the be-
ginning of the term of the legislature.
UPON lIllS QueSUol the case OL tNOl1
VS.. ProSser, II Pac. Rep. 1913, was
cited to the effect that the word
eligibility meant eligibility for election
as well as eligibility to hold the Office
and that the language Of the act of
Congress in prescribing the duties of
the commission when it says that the
certificate shall be issued to the person
appearing to be elected ''who is eligible
for such election precluding the pre-
sumption that a man might be in
eligible to hold an Office and at the
same time be eligible for election to
the Office. Other authorities were
cited.
Upon the third point it was argued
that where the person who had re-
ceived the highest number of votes
was ineligible for election to the Office
that then the person who being eligible
had the highest number OF votes
should receive the certificate OF cleo
ton. In support Of this proposition
the case of Gulick VS. New. II Am.
Dec. 49, and many other American and
English cases were cited in support of
this view.
II was urged that in interpreting the
language of the statute defining the
duties Of the commission the inten-
ton Of Congress must govern in the
Interpretation, that the evident pur-
pose Of Congress in passing the Ed
munds law was to destroy the political
influence of the polygamists and other
classes of disqualified persons, and
that to put upon the act in question
the construction that a minority can
didate could not receive the certificate
of election was to say that while Con-
gress intended to destroy the political
influence Of pOlygamists and those in
sympathy with them, yet it intended
to leave it in the power of a. majority
t,r-x- n laO
either polygamists or sympathizers
with polygamy to defeat absolutely the
purpose of Congress by casting their
votes in favor of polygamists and there
by preventing an election.
He argued that it was more reason
able to presume that Congress intended
20 give this commission authority to
issue certificates of election TO such
monogamists as had received the high
est number Of votes. Notwithstanding
the fact that a majority of the votes
might have been cast for a polyga-
mist. or other disqualified person.
1t was claimed that this presump-
ton was trengthened by the fact that
our statute nowhere requires ma
jority vote for election; also that there
is no provision made for the filing of
a vacancy which may occur by re-
fuSal of the commission TO issue a GER
tiflcate of election to the person re-
ceiving the highest number of votes
among those who are eligible: and also
by the fact that our statute makes
no provision for the holding over of
Office on the part of the members of
the legislature until their successors
are qualified. 1t viii not be presumed
that the legislature believed it better
to have any district of this territory
unrepresented in the legislative as
sembly than that they should be rep
tod nv y TorSOO EbC, had rApeiU-
ed the highest number of votes among
those candidates who We're eligible,
even though he may have received
less than a majority of all the votes
cast.
E. w. Tatlock followed for the con-
testee. After reading a telegram from
the encouragement, dated the goth,
acknowledg ing the receipt and filing
OF the resignation of Seely, he began
the argument by insisting that the
resignation of Seely was in force
from the time he mailed it to the
president. On this he cited many
authorities and made an able EXPOSE
ton of his side of the case. As to the
time of filing the resignation he held
that Seely had a right to withhold the
document until the time came for him
TO qualify as a member of the legis-
lature, and as the time for assembling
is yet many weeks distant, there is
still time for the contestee to file his
resignation. The question of the eligi-
bility, he insisted, does not come up
at the time of the election, but only
when the attempt is made to assume
the duties of the ether office. He held
it to be an indisputable principle that
the people may vote for whom they
please, but when the time came TO
take the oath of Office, then an ineligi-
bic person should be barred out On
the question Of whether or not man