Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1895-05-23

tend strongly to strengthen this view of
the case. This construction, il seems to
me, preserves the harmony and integrity
of both the executive and legislative
branches Of the government Of your state.
This construction will keep the offices of
both Governor and senator full, each by
separate person. ltayoids the adherence
of a vacancy In either.
The vacancy which, it seems to me-
occurs upon the accession of the Speaker
of the Senate to the executive office is one
which under the provisions of article =.
section 3, of your Constitution could have
been filled by an election--a writ of
election for which could have been
properly issucd by the Speaker pro
tempore of the Senate. who, | understand,
was elected by that body Oh the accession
of the Speaker to the governorship, the
General Assembly then being in session;
or had this vacancy occurred when the
General Assembly was not IN session, bya
writ issued by the Governor.
1t will be observed that section IL Of
your Constitution creating an inhibition
as to certain persons and declaring that
suCli persons shall not be u Senator, does
not refer 10 person elected to State
| office, but simply to one holding any
office under the State" This provision is
wisely worded and, as it appears to ine,
was clearly intended to cover not merely
by election, but every case. whether by
election or by operation of law in virtue
| of constitutional provision, as in this case
Should 1t be said that this construction
| OF the Constitution might result in limit
ing the tenure of office to which Senator
has been elected, the answer is conclusive
| that in accepting the Office OF Speaker of
| the Senate, a voluntary act upon the part of
a Senator, he does so subject to this con-
stitutional provision. And hence is vol
| untary resignation of his office of Sena-
tor In the event of a gubernatorial vacancy.
After careful consideration, then. with
the light before me, | am, Us at present
advised, strongly of the opinion that
Speaker Watson when he entered upon
the duties Of executive, then held the
office within the meaning of the provi..
sions of your Constitution, and in virtue of
those same provisions he ceased to be q
Senator; the office of Senator became
vacant, could have been filled by election
on proper writ Issued, aud us 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, reserying the
right, should | be convinced to the con
trarv. after full argument, to change my
opinion.
Ehe 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 nc
power under the Constitution to appoint q
Senator where the Legislature whose duty
it was to elect TO j full term has failed III
! such election.
In view OF the suggestions contained il
my former letter, | have felt II due ate
, further consideration TO submit TO you the
: foregoing suggestions.
Yours very truly,
JonN H. MITCHELL.
, SENATOR PuGHs OPINION.
Philadelphia Ledger Special.
3 WASHINGTON, May Ex-senator Pugh o
: Alabama, who is chairman of the Senate
judiciary committee, has given the Inuddli
!, over the Delaware Senatorship some eX
|. animation, and as the result of this eXami
q nation expresses the opinion that Acting
Governor Watson had the legal right t,
assume the functions of Senator ant
q Speaker of the Senate at pleasure. Atte
quoting the provision Of the Constitution
Of Delaware which creates the Genera
n Assembly. senator Pugh said: ARTICLE
r section III reads: on the death of tn
e Governor the Speaker of the Senate at tina
Q time shall exercise the office until IL b
!. regularly vested in new Governor
:. While the Legislature was in session an
/. engaged in the election OF United State
u Senator the Governor died, and the Speake
!, the Senate and House met in joint cor
\, rention to elect United States Senate
/. and during the balloting the Speaker q
" the Senate, who was exercising the othC
g of Governor, appeared in the joint col
to vention and presided as Speaker Of th
e Senate and cast his vote for United State
=, Senator.
T, THE ACTING GOVERNORS RIGHT TO VOTE.
e 'The whole question is: Did he hay
-, q, the right to vote? II so, it is concede
~ that MIR. du Pont did not receive u su
ID llCicnt number of votes u elect hi
IN United States Senator. What was II
ID legal effect Of the death OF the Govern,
e upon the office of the State Senator VII
4 was at that time Speaker of the Senate
e. am quite clear in my conviction that IL
or death of the Governor did not have Il
II, least effect upon the rights, powers, dutit
y or functions of the State Senator lie Iii
llo to continue his existence as Il State Senat,
m to enable HIM and quality him to exerci
id the Office OF Governor. IL was only
Gu state Senator and us Speaker OF the Seua
Id that he WAS authorized to exercise Il
Gu office of Governor. The office OF Govern
IN devolves upon the Speaker Of the Scna
" rs Speaker, and as Speaker he exercis
he the rights. powers, duties or functions
T. the Chief Executive.
Se AN ANALOGOUS CASE CITED.
N ''If the existence of State Senator al
@ Speaker terminated on the death of d
ne Governor, then there waSa vacancy in 4
40 State Senate, and the county from whit
- the Speaker was elected had put two Sen
w. tors, when the Constitution entitled 1t
~, three. 1t is manifest from the provisio
~ of the Constitution that there was
~ vacancy in the Senate, and there is
Va authority anywhere to ill such vacanc
In the 18th section it is provided that
| In piu nf a ~ plnptinn Govern
s'l shall continue longer than II stated tim
~ the Speaker of the Senate who may TIN
~ be in the exercise Of the office of Govern
III shall continue therein until the determine
~ ton OF such contested election. Duri
~ the time the contest is continuing and q
~ Speaker is exercising the office of tic
"S crnor, what becomes of the Office Of STU
Senator and Speaker Of the Senate?
~ there Il vacancy III the Senate pending /
~ contest TINT is filled when the contest
w. determined by the restoration OF the sal
~. man To the Senate vino had been exercise
~ the office of Governor?
~ Then, again, tho Constitution,
,.s article ., section 3. provides that if t
" office of Senator becomes vacant befC
~ the regular expiration of the term there
- a Senator shall be elected to I'LL sll
nc yacancy' Can it be claimed that VIII
IL, the Governor died vacancy was there
~, made in the office OF the Senator who v
III Speaker OF the SENATE tnat coulu NC nj
ih a by an election, as above provided2
he the third section Senator is elected for
term of four years. Suppose q Sena
the first year of his election is chos
"a Speaker of the Senate and while SpeaE
ioi the Governor dies, docs the State Sena
r. 20 out of office while exercising the OIL
,ne of Governor for perhaps only a +
tGe months until the election Of Goyernc
on EXERCISE OF DUAL FUNCTIONS EXPLAIN
~ ~ But the question is asked, How can
% soma man h.. Senator and Sneaker and