Evening journal., 1896-01-08
HAS NO JURISDICTION.
State Senate to Judge Quail
hcation of Members.
NATIONAL LEGISLATURE GAN NOT

Iho Argument In OppoeltiOn to Colonel
Henry. A. DuPont's Claim to Repre-
sent tho State Of Delaware pieted
aud Ready for Use--A Brief Synopsis Of
the Propositions Advanced
The argument in opposition TO the
c c'aim Of Cilone Henry A DUPONT to the
Office OF United States Senator for the
State OF Delaware. as complied by James
l. Wolcott, John Basfett Moore and
Wiilism f Kuriz, counsel. has bsen
issued and the initial copies reached this
city this morning The document com
prlsed seventy pages and ia pronounced 4
wonderfully clear and lucid paper
After presenting the facts connacted
with the balloting for senator which cnl.
minated IN the adjournment without
having reached q choice, the document
presents the propositions of counssl for
the claimant. which are eight in number,
aud which, for tho purposes
or argument, are reduced to
three As II is admitted that
Mr.. Watson on May 0. 1895 either was
governor or was simpy acting ss
governor The propositions are rsducsd
TO the single one that be Was on the day
[ In question forbidden 20 act both ~
governor aud senator The three propo.
aitlons then are
IL 10 rule OF the common law that
no person shall exercise two iuconpstible
fiises at he same time
. Under the AmerlcRn eystem execu
tive and legislative Offices are iu-
compatible aud no psrton can exercise
both simultaneously without express or
implied statutory or constitutional
authority.
B. rno constitution Of Delaware not
only does not authorlzs but expressly
forblds "ths Simultaneous exercise, by
the same person OF the cfiices OF gov.
ernor and senator
Propositions OF Opposing Counsel.
In answer TO the first proposition the
counsel oppose that there is no such
rulr known to common Law as the ruls
that no person ahali exercise tHo
incompatible Offices AZ the same Tins
The rule is that no shall not hold two
incompatible Offices, ard II does not
sanction the holding by que man OF two
or more otfices that he cannot discharge
To proposition second Is opposed that,
under the American system. executive
aud Legislative offices are not ia them
selves incompatible. The fact that two
off ses happen 10 be In different depart.
ments OF tn, government. as In the
legislative and executive. or judicial,
does not, In itself. render them lncom.
patlble.
And third that the constitution OF
Delaware not only does not forbid but that
20 expressly authorizes The Speaker Of the
Senate, while holding that ofice, 70
exercise the Office Of governor
IncompatlbnitY At Common Law.
Uider this caption, referring to the
proposition advanced IN opposition to
Colonel DuPont's claim. the argument
Is made that the provision Of the con-
sii,utlon that tho speaker Of the sem
ate shall, Ia certain contingency.
exercise the Office o governor had. until
May g. 1895, always been held to mean
that the person SO exercising the Office OF
governor did not vacste his senatorial
Office The cases cited by Colonel DuPont's
counsel show thrt no man 8hall hold two
Incompatible Offices and II they are
Incompatible. tho acceptance Of the
second vacates the FIRST
While undoubtedly true that Ia the
American system the separation into
executive legislative and judicial ds-
blending Of functions ia the different
departments is not new thing Ia Della
waie
Particular Provislons Of tho Constitution.
The counsel calls attention to the
provisions Of the constitution relative to
governor IL is provided that he shall
be chosen by the ctlzsns OF the state,
shall bold Office four years. shall not be
eligible for a second time, and must be
At least 30 years OF age These are
all IN applicable to a speaker Of the
Senate who exercises the office Of
governor A senator mas be only 27
Years Of age as Is the case OF Governor
Salisbury IN 1856 be elected governor
while exercising the Off ie Of speaker
He DOES not exercise the office Of
governor for particular term but only
until a governor elected by the psople
shall be duly qualified In Gaze OF q
vacancy 10 the Office OF governor he
simply performs the duties Of that office
I'd interim
Council for claimant contend that,
under section article 3. Of the son
stitution mo member o. Congress OF
person holding Office under the United
States, or this slate shall exercise the
! NUct OF NONtNuult HAA uNucI sec
. tlon 10, article 2. that no
person concerned n any army or navy
) contract, no member Of Congress nor any
Z person holding any office under the state
or United States With certain exceptions
shall during his continuance in Con-
gress or IN Office be senator OF
representative. The counsel for clalm-
ant do not deny that uuder the on.
' section no senator shall exercise tn,
d oiIice Of governor while holding
the office OF senator. and undsl
? the other that no person holding the
I. office Of governor shall during his cor
= tinuance in that flee DO a senator II
their theory be correct senator con
T cerned In an armv or navy contract,
Z would BE- at liberty to exchange at viii
the character Of senator for contractor
Suspension From once.
Under this caption counsel against
o claimant takes up the theory, advanced
BY Colenel DuPont's counsel, OF implied
4 suspension from cfhss or from
{ the furctlons Of office In the
absencs Of an express provision OF law
the spectacle of an officer stripped
lot the powers OF bis ofnc'
] rs an anomaly. The purpose o.
! Iaa nj T. =.