Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-02-27
AGAINST THE DU DON'T CLAIM.
Opposition Counsel Make Reply 10 the Ar
gnments of MIR. du Points Counsel.

gnments of MIR. du Points Counsel.
Hon. James l.. Wolcott, Prof. John
i. Moore and William +. Kurt, eoun-
sol in opposition to the claim Of Col.
ii. \. du Pont for seat in the United
States Senate, have filed an answer to
the reply of counsel for Mr.. du Font.
In REPUTATION of the statement Of
counsel for Mr.. du Pont that Acting
Governor Watson did not take part in
the proceedings in the Senate on May
9th, tho alfidavits produced By Mr.. du
Points counsel are taken up and the
error of the claims are shown. The
admissions Of the atlantis arc quoted to
show that Mr.. Watson, according 10
their own statements, was in the Sen
ate chamber. The answer says; All
three atlantis admit, expressly or by
necessary implication, that Mr., Watson
took the chair in the Senate; that no
protest was made against his doing
80: that they all recognized him as pre-
siding officer when he announced the
hour for the joint assembly that they
followed him as he proceeded, at the
head Of the Senate, TO tho hall of the
House of Representatives; and that
they recognized him as the lawful pre-
siding officer of the joint assembly. .
The fact that Mr.. du Points counsel
deems the Senate of the United States
and not the Senate of Delaware the
proper judge of the qualifications of
the members of the latter body is also
taken up, and after quoting the origi-
nal argument bearing on the subject,
the answer says; ut cannot be pre-
tended that Mr.. Watson was u mere
intruder or 'interloper He was a
duly elected Senator, and was tho duly
elected Speaker of the Senate. His
term as Senator was still running.
Though month had elapsed since ne
assumed the duties of Governor no ono
had suggested that his seat in the Sen
ate was vacant, although, il it had been,
the Constitution of the State required
the Senate to issue writ for an cleo
ton to fill the vacancy
The existence of the rule that "no
person shall exercise two incompatible
offices at the same timen is denied,
and it is demonstrated that the rule
of common law is that no person shall
hold two Incompatible offices, and
| that, il two Offices are incompatible,
| the acceptance of the second vacates
| the first" 1t is also pointed out that
the exercise by the Speaker of the
| Senate of Delaware of the office of
| Governor did not vacate his Senatorial
Office, and that therefore the offices were
not Incompatible. The difference be-
tween holding and exercising" two
offices is dwelt on at length.
The fact that the Constitution of the
| State provides that leach house shall
choose its Speaker and other officers
and also each house whose Speaker
shall exercise the office of Governor,
may choose a Speaker pro tempore" is
cited, and the alternative meaning OF
tho word "may" gone into at length,
authorities being cited.
The argument holds that "a member
of the Legislature in voting for q
United States Senator does not exer-
else legislative function He acts as
an elector, precisely as, in the trial Of
an impeachment, member of the
Senate sits as judge, and performs q
judicial, not Legislative function.
The Constitution of Delaware
not only does not forbid, but it ex
pressly authorizes, the Speaker of tht
Senate while holding that office, tc
exercise the office of Governor. This
proposition is established by the Ian
guage of the Constitution; and by the
uniform construction of the Constitu
ton; by the construction of similar
plauses in the Constitution of Penn
syl iania, from which the provisions il
the Delaware Constitution were do
rived; and by the principle that thu
constitutional incumbent of an Office il
not to be disqualified by implication
from discharging its functions "
Tho argument also holds that the
action Of tine Senate of Delaware or
the qualifications Of its members il
final. The argument of counsel iol
Mr.. du Pont is taken up in sections
and refuted. Very few new facts are
brought out, Messrs. Wolcott, Moor,
and Kurtz simply referring in thu
main to what they have already con
tended and proved.