The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1898-12-20

ing Il member of the legislative de-art-
ment. He is Judge of the Court of Inn
parchment, and may try himself IL he
remains Senator. The State Constituflss=
provides that no member of Congress or
person holding an office under the Unit
ed States or this State shall exercise the
office of Governor; that no Justice of the
Supreme Court nor Judge of any other
court, Sheriff, Justice of the Peace, nor
any person or persons possessed of any
office of profit under the government of
said State shall be entitled to a seat
either in the Senate or in the General
Assembly. 1t divides the powers of the
government into three distinct depart
ments-the Legislative, the Judicial and
the Executive, and provides that no per-
son or persons belonging to or consti-
tuting one of these departments shall
exercise any of the powers properly be-
longing to either of the others, except
as herein expressly provided"
When the President of the Senate sue
ceeded to the office of Governor and took
the oath required by law, he ceased to be
a member of the Senate, and he held the
position of Governor for the term fixed
by the Constitution until another Cover
nor should be elected. His resignation
of his seat in the Senate was unnecessary,
and could not in any way affect the ten
ure of his office as Governor.
Chief Justice Kirkpatrick delivered an
opinion which was unanimously approved
by the Court of Errors, in which he held
that where a person holding a seat in the
Legislature and afterward was appointed
to and accepted an Office of profit, his
seat in the Legislature was thereby va
Gated. That If a person holding an Office
be appointed to and accept another office
Incompatible Herewith, such acceptance
of the second is a virtual surrender of
and vacates the first. The Judge says
The House of Assembly. therefore, in
these cases does not look for resignation.
1t only needs to be informed that a
member has been elected to and accepted
an office of profit in order to
lay the ground for declaring the
seat vacant and ordering a new
election. But in this form will be found.
minutes in cases of this kind. OF this I
think l could Mention many instances. 1t
is my own case, when first appointed 10 a
seat on this bench. In that case the resig-
nation was actually called for by some Of
ltle younger AIH2IlDGTS VI tile E1OuSG, anu
the question brought forward in argument
but it was held and determined that no
resignation was necessary; that the ac-
ceptance of the office vacated the seat,
and in this instance, too. 1t was a mere
parole acceptance, made to the. Speaker,
out of the House, and by him reported.
and it was held sufficient to ground the
order for a new election. This then /
lake 10 be the legislative and the only
liberal and true construction of the sec
ton. A member Of the Assembly is in no
way preeluded from the acceptance of
office at any time more than others, but
his acceptance, If it be an Office of profit,
vacates his seat
Mr.. Stockton cited a number Of other
cases and attacking the act of the last
Legislature, which gave to Mr.. Voorhees,
the title President of the Senate and Act
ing Governor, which, he said, was q
compound not recognized by the Consti
tuition
Justice Van Syckel remarked that the
Court would have to interpret the Con-
stitution. and not the act.
Precisely, said Attorney General
Grey.
Mr.. Stockton went on to say that there
was no ~evading the fact that Foster Nj.
Voorhees, is Governor today. His resig-
nation as Senator from Union county was
a work of s-upererogation. He ceased to
be senate WEen ne became governor
You may say" he added. that If he Is
Governor now he can't succeed himself,
because of the express prohibition in the
Constitution. That question win be ar
gued in January, when his term of SER
vice expires
ar. Stockton then urged that David Q.
Watkins is not Governor de facto, be-
cause there was no acancy. Voorhees,
was Governor de facto and de jure, and
he has never resigned, died or removed.
A stranger usurping the duties of the
office which is full is not an officer de
facto." An office is deemed to be full
de facto whenever a person selected has
been admitted TO it.
He ended his argument with a brief re-
ference 10 the po.nt elaborated in his
brief. that Edward Clifford was never
convicted by a lawful jury, the evidence
and traverse of return TO habeas corpus
showing that he was tried by a struck
jury. which in capital cases is not such a
jury as is required by the Constitution.
This question is under review in the
Court of Errors and Appeals. which will
render a decision in a few days.
The Court reserved decision, announcing
that it's findings will be announced on
Friday December 20.