Delaware gazette and state journal., 1896-01-16


moment 1t involves an abandonment |
Of the claimants whole case. 1t i'm
pliedly admits that it is impossible, in
view of the precedents, to maintain
that the Senatorial Office is vacated
when the Speaker Of the Senate exer-
cised, under the Constitution. the
office of Governor. 1t thus abandons
the theory that the offices are either
inherently incompatible or forbidden
to be held together. Yet, in spite Of
the fact that the Constitution provides
that 1.-THE Speaker of the Senate shall
exercise the office (of Goyernorl until
Governor elected by the people shall
be duly qualified, " and authorizes the
Senate in the meantime to eject a
| Speaker pro tempore, the paragraph as
sumes that the office of Speaker at the
same time may or may not be vacant.
"Ift, say counsel, ''upon his return
to the Senate. he (the Speaker who has
been exercising the Office of Governorl
find tho Office Of Speaker vacant, he
may take the Speakers chair, if the
Senate permit. !" This language neces-
sarily implies that the Senate may
have elected another Speaker; and the
situation contemplated is this: That
the Senate, instead of exercising the
authority to elect a Speaker pro fem
pore, may have instead two Speakers
one in esse and the other in posse. the
SpeaKer in posse being the person
whose vacation of the office has rem
| dered it possible to elect another
Speaker. But the incongruity docs
end here for the Speaker in posse it
seems is not to be treated as a real
Speaker but only as having capacity to
take the Speakers chair if it is vacant
and if the Senate permit; though in
fact no one can take the chair other
wise.
10 such extremitieH are we brought
by the theory of counsel that person
may vaeate one Office after another and
yet possess the faculty of restoring
himself to each Of them in succession If
he happen to find them vacant. Coun
sci say that upon their construction
of the Delaware Constitution there
can never be either supernumerary
Senator or supernumerary Speaker of
the Senate" 1t is only by adopting
theories suggested by writer's for the
press that any question of supernum-
erary relation can arise. No theory
suggested by us could have such re-
suit. But counsel for claimant while
expressing abhorrence of the idea of a
supernumerary Senator or supernum-
eIary Speaker of the Senate find them
selves driven to embrace theory which
requires the existence of Senatorships
and Speakerships which are both va
cant and not vacant.
But apart from the specific direction
that 'the Speaker of the Senate shall
exercise the office of Governor until a
Governor elected by the people shall be
duly qualified" there is another pro-
vision of the Constitution which may
be said to be decisive.
,, Section Article relating to the
General Assembly provides as follows
Each house shall chose its Speaker
and other officers; and also each house
} whose Speaker shall exercise the office
/ of Governor may choose Speaker pro
tempore.
| Counsel for the claimant in vain
} strive to escape the force of this pro-
! vision. They grow facetious over the
! idea that the words pro tempore
necessarily imply the contemporane-
, GUS official existence of another
} Speaker. - and point out that there nj ay
be a presiding officer pro tempore of a
, legislative assembly though there may
} not be at the time regular or perma-
nent presiding officer. We do not con-
trovert the argument but it does moi
/ meet the case.
t There may undoubtedly be presid-
0 ing officer pro tempore of Legislative
! body, before the election of a regular
j presiding officer: there may be pre-
D siding officer pro tempore to act IN
|, place Of the regular presiding officer,
j who is absent from his post; there
may also be presiding officer pre-
. teinpore where the presiding office
being separate and distinct office
4 is vacant as it is the case where
: there is no Vice President Of the United
r States and consequently no President
{ of the United States Senate
t Counsel for the claimant resort ir
= their extremity to classical antiquity
4 in order to find among the poets anc
4 historians some rare and literary use
of the words pro tempore. But while
q we would not cast any reflection upor
0 the accomplishments of the men whc
framed the Constitution of Delaware
q we cannot suppose that they employed
Q their leisure moments in raneacking
the Latin writer's for words to insert il
/ a misleading sense in that instrument
But even the rare uses of the words
I pro tempore discovered by counsel fol
D
tion. In no sense of time or of eXigency
Y could the words pro tempore have beer
: used in the Constitution of Delawart
+ in the clause in which they are founC
{ unless the Speaker of the Senate whilt
o exercising the office of Governor hac
: continued to hold his Senatorial offices
D Delaware has had three Constitution!
tho Constitution of 1776, the Consti
! tuition of 1882 and the Constitution o
| 1881 which is still in force. With tht
arrangements of government under tht
e Constitution of 1776 we are not nov
concerned. But in the Constitution o.
: 1892 and 1881, the provisions which art
s alleged TO apply to the questions under
1 consideration arc substantially the
g same Both provide that 6 No member
Y of Congress nor person holding any
9 office under the United States or thit
: State shall exercise the office of Cover
nor" and both also provide that in cast
of vacancy in the Office of Governor
t the Speaker of the Senate "shall exer
{ else the Office till another Governor
e shall be duly qualified.
a When William T. Watson on the 9tf
: Of May, 1895, took the chair as Speake
1 Of the Senate it had repeatedly beer
o determined in Delaware that the excr
1 else by the Speaker of the Senate 0
{ the office of Governor did not affect hi
Senatorial office.
d The next II pages of the brief are de
k voted by the counsel in citing tht
!, precedents which have occurred il
!, Delaware, sustaining the action o
r Gov. Watson. The cases of Danie
n Rooers John Sykes ,Jarob Stout