Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1898-12-12
THE VACANCIES
In the Ninth aud Thirteenth Senatorial
Districts Again Eiaborateiy Considered
by Judge RranuOu

by Judge BranuOn
Weston, w. Va, December 11.-Your
correspondent again called on Judge
John Brannon and stated to him it was
being claimed that if vacancies did ex-
list in the Ninth and Thirteenth Sena-
torial districts, prior to the last gen.
eral election, by the reason of the ac-
iceptance by the former elected incum-
bents, that there was no legal election
to fill the vacancies at the last general
election, because the Governor had is
sued no writ of election to fill the
| vacancies.
The Judge took some time to meet
the inquiries l made, and handed to
me the following:
"The whole range on this subject is:
First Did the vacancies exist? The
thirteenth section of Article or the
Constitution provides: No person hold
ing a lucrative Office under this State,
the United States or foreign govern
ments shall be eligible to
seat in the legislature
81 stated to you, in reply to your
former inquiry, which you published,
| that the two Senators who had accept
ed military commissions in the army
thereby vacated their seats in the Sem
ate, and, in substance, that member
| of the Legislature who accepted, as
they did. when Senators, constitution
| ally declared ineligible offices to the
first. ipso facto, vacated their seats In
the Senate.
I'm support of this I cited authorl-
ties. and in support of the statement
that the word eligible employed in
the constitution, not only referred to
eligibility to be elected, but also as to
capacity, after accepting an incompat-
! ible Office, to continue to hold seat
in the Senate. l then made reference
to 18th Indiana, p. 327, 18th Cal, p. III,
and Sd Nevada, p. SOS.
"The word eligible embraces both
ideas-of being elected and holding
one as to the election when eligible.
and the other, although eligible when
| elected, to continue to hold the first
after acceptance of an incompatible Of
flee to the first American Encyclo-
pedia Of Law, vol. 6, p. 447, and notes,
Leading Cases on Election, Brightly,
page 143.
in cases of constitutionally declared
| incompatible offices, as in this case, TO
! the one held the acceptance OF such in
compatible office is the abandonment
and resignation of the first held, even
though the duties of the two may be
entirely compatible
| "McCray on Elections, Sd edition,
sec 30i; The Law of Elections, by
Payne, sec. 55S.
| THE acceptances by said Senators
| ipsO facto vacated their places in the
Senate, and no proceedings were neces-
sary to declare the vacancies. McCray
on Elections, Sec 305.
"In support of the fact of the vacan-
cies and that the acceptance of incom-
patible offices absolutely vacated their
seats, | find that even then they can
not be restored to their seats as Sena-
| tors by resigning their last accepted
offices. | find a very important and
well considered case, of Schell, Judge,
VS.. Cousins, II Virginia, 329, not only
bearing on the last statement, but bear
ing conclusiveIy on the question of an
ipso facto vacation by the acceptance
by the former two Senators of military
commissions. 1t may be commissions
may have issued to the two Senators,
under State authority. This does not
change the result stated. Although
they may have issued under State
authority, it does not follow they are
| State officers, but they are officers OF
the United States McCray on Elec-
| tons. sec. 302.
| Even if improperly so considered,
their commissions then made them
State officers, the incompatibility still
exists. See Sec. Is of Art. 6 of the
Constitution.
You now state there remains ques-
! ton which is, in a manner in debate,
as to how the vacancies, occaSioned by
| the acceptance of incompatible offices
| by the two Senators can be filled, as
no writs of election were issued by
the Governor.
| There having occurred the two va
cancies, certainly the omission by the
| Governor to issue writs of election, if
| indeed in the cases it was his duty to
do so, does not restore the two Senators
to their seats in the Senate, and plain
| ly because, as before stated and by
authorities cited the acceptance by
| them of constitutionally declared in
compatible offices, ipso facto, vacated
their seats in the Senate.
The seventh section of Chap. 4 of
| the Code provides that in cases of
vacancies in the Legislature, the Gov
ernor shall issue writs of election. I
| have noticed he IS been charged with
dereliction of duty in not having issued
such writs. This may not have been
just to him. He may have concluded
the vacancies had not occurred; that it
was a judicial question, or he may have
thought that they could be filled at the
| then succeeding general election with
out writs of election. If the latter,
believe he was right
1t occurs to me the section OF the
Code referred to is merely directory.
No writS of election in the particular
cases could be necessary, unless nece5-
sary by some eXigency OF special seS-
sion of the Legislature before the next
general election. 1t is to be observed
that this seventh section of chapter
Of the Code, which provides that the
Governor shall issue writs of election
and shall prescribe the day, applies
only to special elections, and when
necessity for special election may oc-
cur Take an instance of a called ses-
sion of the Legislature, when some va
cancy may exist, writ of election
would supply the place, by a special
election under such writ. This conclu-
sion is strengthened by the fact that
the seventh section of article 4 of the
Constitution, which provides for cleo
ton of members of the Legislature at
the general elections. makes reference