Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1895-05-23
MOREOPINIONS BY SENATOR'S
Upon the Senatorial Situation
in Delaware.
ANOTHER LETTER BY MITCHELL
Senator Pugh Endorses the
Act of Speaker Watson.
his View of tho Constitution is Tint
speaker Watson Was Acting Clearly
Within His Rights in Presiding Over
the Joint Session Senator Mitchell
Writes another Letter to higgins.

WAsHtSoTox, May II. = Senator
OF Oregon has written letter
more fully and modifying
somewhat the views expressed by HIM
in recent letter on the du Pont sena-
torial election contest in Delaware. The
letter in full is as follows:
WASHINGTON, D. O.. May Is 1856 Hon
anthony Higgins. Wilmington, Dsl.--MY
DEAR SENATOR. Since writing you on the
l4th inst. have given to the various pro-
visions of The Constitution Of Delaware,
which bear in part upon the question as
to whether Or not there was an election Of
United States Senator by your late Legis-
lature q very careful consideration, and
am now strongly of the opinion that
when the Speaker of your State Senate
entered upon the duties of Governor OF
the State hc not only ceased to have any
power to further exercise the functions OF
both Speaker Of the Senate and of Sena-
tor. as intimated in my former letter, but
that the offices of both Speaker of the
Senate and of Senator held by him, be-
came vacant and the right upon the part
of the county, whose Senator he was, to
fill such vacancy Immediately attached.
As understand it, the following are the
provisions Of the Constitution of your
State which have any bearing upon the
question:
Article :, section g. The Senators shall be
chosen for four years by the citizens residing
In the several counties. There shall be three
Senators chosen In each county. 4.
II the otice of Representative or the office OF
Senator becomes vacant before tue regular
expiration Of the term thereof, q Representa-
tive or q Senator shall be elected to MI such
vacancy, and shall hold the Office for the
residue Il said term.
the General Assembly, and the General
Assembly is not III session, the Governor shah
have power 10 issue ii writ OF election 10 Ill
such vacancy. which writ shall be executed MS
| n writ issued by the Speaker OF either house
In case oil vacancy.
Article ., section L. The General Assembly
| shall meet ON tue first Tuesday OF january,
blennialy, unless sooner convened by the
Sec. 8 Each House shall choose its speaker
and other officers; and also each House, whose
| Speaker shall exercise tho ofIlce of Governor,
| may choose a speaker pro temp0re
| sec l2 No person concerned in any
army or navy contract, no member OF Congress
| nor any person holding any Oiiice under this
| State OF the United states, except tho attorney
| general, officers usually appointed by the
| courts oil Justice respectively, attorneys al
law and officers in the tlilita, holding no dis.
qualifying Office, shall during his continuance
IN Congress or In office be senator or Repre-
sentative
Article 3, section 8. The Governor shall hold
his Office during four years from the third
Yuesdgy oil January next ensuing his cleo
| ton.
sec. g. No member of Congress, nor person
holding any Office under the United States oil
| this state, shall exercise the office OF Governor
Sec. Il, Upon any vacancy happening in the
office OF Governor by his death, removal, resig
nation or inability, the Speaker OF the senau
shall exercise the office until Governor
elected by the people, shall DO duly qualified
~ 49,. nee ERW.u
a further vacancy happening in the office b!
| his death, removal, resignation or inability
the Speaker Of tho House of Representative
shall exercise the ofllce until GOverno
elected by tho people shall DO duly qu4lliled
| II the person elected Governor shall die, o
become disqualified, before the commence
Iuent OF his term OF orfice, or shall refuse I
take the same, the per,on hUlding the ollie
shall c1Dtinue to exercise IL until u Governo
shall bs,Glected ana duly qualified. II upon
vacancy happening in the ONCE OF Governor
thereby no other person. VINO can cxercis
said ONCE within the provisions OF the Const
luton, the Secretary Of state shall exercis
the same until the next meeting OF the Gen
eral Assembly, who shall immediately prucoe
TO elect by Joint ballot OF both houses perso
To exercise tue Office until Governor elec!e
by The people shall be duly qualified. IL
vacancy occur In the ollte OF Governor, or
tho GOvernur-elect ie, OF become disq IallheI
before The com ueucCment OF his term, or n
fuse to take tic Office, an election for GorrrnC
shall DO held AT tho next general eject oi
unless the vacancy lappsn within SIX day
next proceeding tho election, exclusive OF ~
day OF tho happening Of the vacancy and u
day Of the election; i'll that case, II an electlo
for Governor would not have been held al raj
election, without. the happening OF sue
vacancy, no election Tor Governor shall be hel
nv said election in consequence OF sue
vacancy. II the trial OF Il contested electio
shall continue longer than the third Tuesdt
OF January next ensuing the election OF Go
ernur. the Governor OF tho last year, or Il
Speaker Of the Senate, or OF the House oil Rel
rehentatiVes, who may then be in the eSercii
OF tile executive authority, shall conunt
therein until u dissemination Of such COZ
tested election, The Governor shall not be /
moved from his Office for inability, but with u
concurrence OF twO-thirds oil all the memoe
of each branch OF the Legislature.
: These several provisions, it seems to M
: construed, as they must be in pari materi
were intended to preserve and do preser,
beyond all question the well-recOgnizC
, general rule relating 10 iheoulpauolIity
: office.
. 1t will scarcely be denied BY any oil
! that unless the general rule upon this stu
iect has been modified or wholly changl
by the trainers of your Constitution, Il
, | same person cannot ut the same time no
the office OF legislator aud executive al
exercise the functions Of eHch al one al
/, the same time. as the two offices, in Il
:. absence OF any special provision to u
CONTRARY, are OlhlhthblS.
1t will be observed that whenever eth
the Speaker Of the Senate or the speak
of the House holds the office of Govern
aud exercises its functions, that he co
tinues to hold the same until the vncanl
accustomed shall be filled by the peUpl
8 either ut the next general election. pr
\ yided the vacancy happen within six da.
t next preceding such election, exclusive
4 the day of the happening OF the vacan
o and the day of the election, or else at y
a next general election.
Il 1t will be observed that it is special
u provided by section IL Of the Conslitutio
i supra, that certain persons holding ]
Il compatable offices shall not, to quote t
e precise language OF the provision, be
:. senator or Representative"
d In virtue of section II, whenever
Q vacancy happens in the office of Govern
e by his death, us was the case i'll Delawai
the Speaker of the Senate advances to I
position of Governor and is clothed At on
by the operation of this provision OF t
o Constitution with every executive functi
h which attaches to the Governor OF I
Z. State. He then is within the meaning
II section II of the Constitution "hOldln
1t an office under the State OF Delaware
IL language OF the Constitution being n
y any person holding any office under u
10 State or the United states; and thus no
lie ing an office under the State, he shall !
BY the speciic provision OF this same 3
ton L. any longer he Senator.
other words, he Immediately ceases to
ct u Senator.
H. But not only so. The principle of
es compatibility of office is further speca
Ly preserved By section of your Constr
ne ton which provides that mo member,
~ Congress nor person holding amy OF
under the United States or tins State Sh
exercise the office Of Governor.
1t will, probably, be replied to this u
i'll section IA provides specifically that
40 Speaker of the Senate shall exercise
rs office Of Governor, and that, therefore,
us continues to be Speaker anu senator WI
Fir exercising the functions Of eXecutl
This might be so we're 1t not for the otl
! 81 70