Delaware gazette and state journal., 1896-02-13

were well qualified to sit in that body.
These facts comprise more solemn
and emphatic adjudication of that
question than il it had been specifically
passed upon by the courts after full
argument. 1t has on its side all Of the
moral force which is given to it by the
Acouiescence of all the agencies of
government established by the Della.
ware Constitution, and of the absence
of all protest by the people themselves,
and these reasons become positive to
make the potency of these precedents
overwhelming and conclusive.
But the conditions and circumstances
are radically different when it is at
tempted, by analogy, to claim that the
mere non exercise of senatorial func-
tions by n Speaker who is acting as
Governor, is also such binding prece-
dent. The present case is the first one
which the Senate has been actually
called to pass upon, and 1T has con-
structiyely declared that Mr.. Watson
had right to exercise his senatorial
functions while exercising the Office of
Governor at the same time. When we
have proved, as we think we have, that
there is no vacancy in the Senate when
the Speaker of that body exercises the
executive authority, we have also shown
that such speaker is still Senator; /;
and as offices are created TO be exer-
cised, and it is one of the inherent
rights belonging to an office that it's
functions can be exercised whenever
the person holding the Office sees proper
TO do SO, it follows logically that such
| Speaker has the right to exercise his
senatorial functions at all times, in the
absence of some constitutional pro-
hibition, either express or necessarily
implied The functions are inherently
appended to the Office and their mere
non-user is an abstention of the in
diyidual from exercising functions i'm
posed on him, but his on-action can
never bind his successors by being in.
voked as precedent.
| The eontemporaneou5 construction
assumed by opposing counsel to have
thus been given, involves not only
| tho destruction OF the right of Sena-
tor to participate in the proceedings OF
the Senate, but that which is of vastly
more importance, tho obstruction Of
the fundamental right of the people to
have th.ir full quota of Senators guar
anteed to them by the Constitution OF
the State in the most express and I'm.
equivocal language. To thus seek to
turn rule designed as a shield of the
peoples rights into sword with which
J TO cleave them down, is a proposition
/ not to be entertained for an instant by
a judicial tribunal. The people of each
county have been given clear right,
and to attempt to defeat that right by
"contemporaneous construction" would
be an abrogation OF the text of the con
stitution and an attempt to fritter away
its plain meaning.
Relative to the affidavits of opposing
counsel which tend to divert the minds
of Senators from the real issue in this
case, by questioning the legality of the
action of Speaker pro tenn Records il
signing bills on May 9th, 1895, while
Speaker Watson was presiding over the
Senate and joint meeting, we need only
reply that, perhaps, such action of Mr..
Records might give rise to question
as to the legality of the bills thur
signed, but whether his action wal
legal or illegal, constitutional Or uncon
stitutional, it can have no earthly bear
ing on tho question whether or not Mr.
Watson had constitutional right tt
vote for United States Senator OF
that day. That is the sole issue in th,
case. and wagon loads of affidavits ant
endless arguments on irrelevant topic
cannot change this issue.
James j.. Wolcott,
John Bassett Moore,
William +. kurtz,
Counsel in Opposition to the Claim o
Mr.. du Pont.