Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-05-18
S URELY A SEN ATOR
The Election in Delaware of Mr.. Dupont
Believed to b Legal
Constitutional Lawyers Are Said to
Be Almost Unanimous In Hold
ing This View.

Senator Higgins is confident that Mr..
Dupont has been elected United States
Senator from Delaware
Senator Higgins arrived In this city to-
day. To a Star reporter he said he had
received opinions on the question of the
legality of Mr.. Dupont's election from
many leading constitutional lawyers
throughout the country, and the almost
unanimous belief is that the speaker of the
Senate of Delaware, upon succeeding to
the office of governor through constitu-
tiona1 provisions, ceased to have the right
to exercise the office of speaker, and with
out his vote Mr.. Dupont was elected.
Analogous Cases.
He remarked that the succession provid-
ed by the constitution of the state of Della
ware was analogous to that of the United
States, as referring to the presidency, be-
fore the passage of the new law placing the
succession in the cabinet after the Vice
President. The law was tested in this re-
spect in the case of the Impeachment trial
of President johnson. The question was
then brought up whether Mr.. Johnson
should be tried as. Vice President or as
President, as in the latter case only the
chief justice would preside. AS is well
known, Mr.. Johnson was tried as President
Mr.. Higgins remarked that the common
law and general practice since the forma-
tion of the government has been to divorce
the legislative and executive branches Of
the government.
Arguments of the Opposition.
1t was argued by those opposed to Mr..
Dupont's election, continued the Senator,
that the speaker of the senate being ele-
waited to the gubernatorial Office, a speaker
pro tenn. was chosen and was never known
except as speaker pro tenn. That, they
claimed, gave the speaker, although filling
the office of governor, right to relieve the
presiding officer when. be pleased and to
assume those duties.
that the officer elected to fill the place Of
speaker was known as speaker pro tem y
rather than speaker, because such cleo
tion did not carry with it the right of sue
cession to the governorship.
Points in MIR. DuRoat's Favor.
A similar case. Mr.. Higgins says, would
be presented were the President and Vice
President Of the United States to be re-
moved from Office by death. The President
pro tenn of the Senate, would not succeed
to the office of President. In similar way,
the Vice President, when called to be Pres
ident Of the United States. could not pre-
sumo to act as President of the Senate on
some important occasion.
The constitutional provision of the state
OF Delaware that no person holding any
other public office shah be governor was
the keynote to the situation. Mr.. Higgins
feels confident that the controversy over
Duponts election Is practically at an end
and that he will be seated in the United
States Senate in due time. ..-
Senator MitcheIfs Views.
Senator Mitchell of Oregon has written a
letter to Senator Higgins explaining more
fully and modifying somewhat the views
expressed by him in recent letter on the
Dupont senatorial election contest in Della
ware. He declares that the governor had
no right to act as senator. Mr.. Mitchell
says:
'Since writing you on the 14th instant, 1
have given to the various provisions of the
constitution Of Delaware " hich bear in part
upon the question as to whether or not
there was an election of United States
Senator by your late legislature, 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 he not only ceased
to have any power to further exercise the
functions of both speaker of the senate
and of senator, as intimated in my former
letter, but that the offices of both speaker
of the senate and of senator held by him
became vacant, and the right upon the
part of the county. whose senator he was.
to fill such vacancy Immediately attached.
Had No Rights as Senator.
after careful consideration, then, with
the light before me, I am, as at present
advised, strongly of the opinion that Speak
er Watson, when he entered upon the du-
ties of executive, then held the office within
the meaning of the provisions of your con-
stitution, and in virtue Of those same pro-
visions he ceased to be senator, the office
of senator became vacant, could have been
filled by election on proper writ issued, and,
as result, the governor had no right to
exercise longer the Office Of senator, either
in the election of United States Senator or
otherwise. This is my present view, reserv-
ing the right. should be convinced to the
contrary, after full argument, to change
my opinion.
"On one question, however, permit me to
say in conclusion, / am fully convinced.
and never expect to change my mind, and
that is that the governor of state has no
power under the Constitution to appoint
Senator where the legislature whose duty 1t
was to elect to a full term has failed in
such election"