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

ubCihIdLlpu tnub nO llNIpoi LpitAAS lhO
Office of Governor of Delaware, shall,
during his continuance in that Office,
be Senator. -
The other constitutional provisions
on which counsel rely is section 5,
article 3, which provides that .tno
member of Congress, or person holding
office under the United States, or this
State, shall exercise the Office Of Gov
ernor. :"
1.-THE effect of this section - say
counsel (p 8 of their argument), sis
not to declare that no Senator shall be
eligible to the office Of Governor, but
to declare that no person shall exercise
the Office OF Governor, while holding
the office Of Senator. -
Yet, mindful of the fact that the set
fled construction of the Constitution
is against them, counsel almost imme-
diately abandon this ground, deny that
a Senator or Representative, while act
ing as such, may, at the same time,
exercise the office of Governor" Up.
IL, and declare that it sis not neces-
sary for the determination of the issue
in this case to decide whether the
Speaker upon becoming Governor,
ceases to be u Senator, or is only sus-
pended in his functions as Senator
until such time as his term as Cover
nor shall end" Up. 191.
1t needs no argument to show that
both these positions cannot be main
tanned. Ii the provisions in question
govern the present case, the Speaker OF
the Senate, when he enters upon the
exercise of the office of Governor, is in
capable of holding the office of Sena
tor. He is not, and cannot be, under
the language of the prohibition, merely
suspended in his functions as Sena.
tori he ceases to ''bold'' the office of
Senator, and it ipso facto becomes
vacant.
If this theory of counsel were cor
rect, Senator who was concerned in
any army or navy contract would be
merely suspended in his functions;'
and would be at liberty to exchange
the character OF Senator for that of con-
tractor, and vice versa, whenever and
as often as no might find it profitable
to do SO.
BY the same logic we might have a
General Assembly composed of mem
hers who were alternately contractors,
their offices as legislators being sus-
pended while they exercised their func-
tions as contractors, and their func-
tions as contractors being tperhapsl
suspended while they exercised their
offices as legislators.
But it is plain that the prohibition
has no application to the case of the
Speaker of the Senate when he eXer-
cises the office Of Governor. The pro-
hihition is general, and must therefore
yield in particular case to an incon'
sistent specific provision, in accordance
with the following we'll known rule OF
constitutional and statutory construc
| tion:
.'Where there are words expressive
of general intention, ard then of q
particular intention Incompatible with
| it, the particular must be taken as an
exception to the general, and SO all the
parts of the act will stand. And, as a
broad proposition, general words in
one clause may be restrained by the
particular words in subsequent clause
of the same statute. Bishop on the
Written Laws and their interpretations.
Hence, also, the general prohibition
that mo * person holding office
under Il this State, shall exer
else the Office of Governor, must ylelC
to the specific direction that, upor
any vacancy happening in the office o
Governor, the Speaker of the Senate
shall exercise the Office until Gov
ernor elected by the people shall b,
duly qualified. . Treating the two
clauses, therefore, as respectivel,
general and specific, the exception
thus made is as clear as if the pro
hibition had been qualified by thu
phrase ''eXcept as hereinafter pro
vided.'' If the contention of counse
were correct, that general provision
must be absolutely enforced, Speake
of the Senate or of the House o
Representatives, or Secretary o
State, who did not possess the requisite
qualifications Of age, citizenship. ant
inhabitancy for the governorship, coulC
not exercise the office of Governor
But, in reality, the words Hexercist
the office of Governor" have, in th'
prohibition now in question, restrc
tive operSion, and show that it wa
intended to apply only to an elective
Governor. Their manifest purpose is
by expressly restricting the prohibition
to the exercise OF the office Of Governor
to make it clear that a person holdin!
another Office may nevertheless b
elected Governor. I
Counsel for tho claimant not onl,
|
ieet of incompatibility, but, in orde
to meet the well-settled construction o
the Constitution of Delaware, they ar,
forced to take positions which are con
flicting and which it is impossible t,
maintain on any theory of law. Thus
in referring to the case of Charlie
Polk, who completed his senatorial
term after exercising the office o
Governor, counsel say that this cas-
sis to be received for what 1T is worth
as an authority in support of the con
tention that, il Governor Watson
senatorial term had extended beyonC
the Inauguration of a new Governor HI
would not absolutely and permanent,
but only temporarily have vacated tn
office of Senator, when he became Gov
ernor But in that question MIR
du Pont has no interest.
With all Difference we beg to sugges
that, so far as Mr.. du Points claim o
title depends upon the existence of th
legal proposition here assumed, that ;
person may vacate one office by accept
ing another that is Incompatible, ant
then, after exercising the latter, restQt
himself to the office which he hat
vacated, Mr. du Points claim mus
utterly fail.
In other places, however, counsel, il
order to meet the cases Of Charles Poll
and other Speakers of the Senate. who
/ after exercising the office of Governor
filled out their senatorial terms, recu
, to the position that the same persol
may continue to hold the two Offices
, though he cannot exercise them at th
same time. Thus Up. S5l, counsel say
} eff Governor elected by the peopi
be qualified, before the expiration! G