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

office of Senator, in the joint assembly,
and the Office of president Of the assem-
bly,, was Illegal; and his votes for
United States Senator was a nullty.
I. Ii it had not been true that Mr..
Watson was on the 9th of May, 1885,
in every sense of the State Constitu-
tion, the Governofs of Delaware, it
would nevertheless have been true that
he was exercising the office of Cover
nor, and was, therefore, incapable of
exercising the Office Of Senator, or the
office of Speaker of the Senate; and
that his disability could not be re-
moved, for his senatorial term will end
before Governor, elected by the peo-
pie, can be qualified.
8. MIR. du Pont having received a
majority of the legal votes cast in the
joint assembly, his right to the office
of Senator is not impaired by the fact
that he fails to present the certificate
of Gov, Watson, AS evidence OF his
election.
For the purposes of our argument;
the eight propositions on which coun-
sci for the claimant rely may be re-
duced to three. As it is admitted that
Mr.. Watson, on the 9th day of May,
1895, either was Governor of Delaware,
or was exercising the Office of Governor
lin other words, that he was either
Governor or acting Governor -propo-
sitions3, A. 5, 6 and Z, may be reduced
to the single and simple proposition
that Mr.. Watson, on the day in ques-
| tion, was not only authorized, but was
forbidden, by the Constitution of
Delaware, to act both rs Governor and
as Senator. Proposition 8, that the
title of Mr.. du pont, il he received a
majority of the votes cast in the joint
assembly, is not necessarily impaired
by the fact that he fails to present the
certificate of the Governor, we freely
admit.
The whole case of the claimant,
therefore, as presented by his counsel,
reduces itself to the three following
propositions:
/. Wis a rule of common law that
no person shall exercise two incompati-
BILE Offices at the same time.
.. Under the American system, ex-
ecutive and legislative offices are in
compatible, and no person can exercise
both simultaneously, without express
or implied statutory or constitutional
| authority.
3. The Constitution of Delaware not
only does not authorize but expressly
forbitls, "the simultaneous exercise,
| by the same person, of the Offices of
Governor and Senator.
To these propositions we confidently
oppose the following propositions:
|. That there is no such rule known
to the common law, as the rule that
no person shall exercise two incompati-
Bile offices at the same time.
The rule of the common law is that
| hal hnl
offices, and that, if two offices are in
compatible. the acceptance of the
second vacates the first. The common
law, which has been called the gum
tessence of common sense, does not
sanction the rule that man may hold
two or more offices, the duties OF
which, by reason of their incompati
bility, he cannot discharge.
2. That, undor the American system,
executive ard Legislative offices are not
in themselves Incompatible.
Under the American system, as we'll
as under other systems, the incom-
patibility of offices grows out of
the incompatibility of their functions
in the particular case. Such incom-
patibility may exist between offices in
different departments, as well as be-
tween offices in different departments
of the government. The fact that two
or more Offices happen to be in diff
ferent departments of the government,
as in the legislative and the executive,
the legislative and the judicial, or the
executive and judicial, does not in
itself render them incompatible.
g. That the Constitution of Delaware
not only does not forbid, but that il
expressly authorizes, the Speaker Of
the Senats, while holding that Office,
to exercise the Office of Governor.
In support Of the first proposition,
in opposition to Mr.. du Points claim,
that there is no such rule known tc
the common law as tho rule .'that nc
person shall exercise two incompatible
Offices at tho same time" the attor-
ueys say:
Why counsel for the claimant have
felt obliged to mintain the existence
of such rule, il is not difficult to con
lecture AS will hereafter appear tht
provisions Of the Constitution Of Della
ware that the Speaker OF the Senate
shall, in q certain contingency, eXer.
else the Office of Governor, had, unit
the 9thsof May, 1895, always been helo
to mean that the person SO exercising
the office of Governor did not vaeatt
HIS Senatorial office. In view of thii
fact, counsel for the claimant are
LfUrced to take tho ground that tht
Scommon law does not forbid a person
to hold two Incompatible offices, bu
only forbids him to exercise" then
sat the same time.i But the rule o
the common law is otherwise.
In order to show that the rule of thu
common law ia that no person shal
hold two Incompatible offices, ii is onl,
necessary to refer to the three cases
cited in the brief for Mr.. du Pont.
In Milward vs. Thatcher, . Term r.
SO, Mr.. Justice Butler said
Now, if the offices be incompatible
his being jurat before is no objection
10 his election; and if they be incom
patible, the election to the latter Office
is good, because tho acceptance of th'
The case of ''The King vs.. Sir w
entered into, is an authority. Their
, the court did not distinguish between
! "A superior and inferior Office: bu
| Lord Mansfield expressly said that i
the two offices were Incompatible, tn
| acceptance of the latter would imply
surrender of the former. -
In the case Of King vs. Pateman,
Durnf. & East III, Lord Kenyon said
"If an alderman be also magistrate
! and tho town clerk act ministerial
under him, then, indeed, these tw
i offices cannot he held by the same per
{ son. Now, here is question whethe
g the town clerks accounts are no
> allowed by the alderman; if they are
I / think the two offices are incompati
| III ND tbip in forpa finn ahnul1 he fn