Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1898-12-23
the case Of Representative Yell, of


ARKANSAS and Representative Blair, of |
Missouri. The California Supreme
Court as tO>a State office also held
that the acceptance>of an Office vacated
the Office instanter, AND the incumbent
could not resign the new once ana
resume the duties OF the oAd.
When the war with Spain was in
augurated. Senator Sewell, OF New
Jersey. requested the President to APP
point him Major General OF volunteers.
The apointment was made, and uhahi-
mously confirmed. Senator SeWeil was
advised by Attorney General Grlggs IL
a non-official opinion that he coula
not accept the commission without va
eating his seat in the Senate. senator
Sewell then wrote the President a iet-
ter declining the appointment upon the
express ground that its acceptance
would vacate his seat in the Senate.
Representative Joe Wheeler, OF Ala
bama, was appointed Major General
in the volunteer army and believing
that this vacated his seat in Congress,
of his own motion he declined to vote
or take any part in the dellberatlohs
of the House. | am positively IN
formed by member of a committee
upon which Representative Nheeler
served, that General Wheeler deemed
to enter the committee room even lot
the purpose of making a quorum Al
torney FitZ, of Alabama, in we'll con-
sidered opinion, declared General
Wheeler's seat in Congress vacant.
At the opening of the present SEES
sion of Congress, General Wheeler
went to the White House for the pur-
nose of resigning as Major General
Owing to some unsettled plans, Presl-
dent Mckinley requested General
| Wheeler to take no immediate action.
! II his services are required IN CUBA
| he will resign his seat in Congress;
| if his services are not required III
! Cuba he will resign from the army
| He has not drawn dollar or salary
as Congressman, since his acceptance
i Of a commission as MaJor-Genefal.
| The news was sent cut that the AT
torney General had decided in favor OF
| General Wheeler'S rights to MAINTAIN
| both positions. This is Incorrect no
| such opinion ever emanated from the
| Attorney Generals office. There was
an unofficial opinion to the effect that
as the military appointment was IN the
volunteer army and not in the regular
| service. that it was not an once, DuI
a mere temporary position from when
| General Wheeler could resign and re-
sumo his congressional duties. AS the
wording of the United States ConSti-
tuition is wholly different from that OF
| West Virginia upon this point, this I'M
official opinion has not the least appll-
cation to the case of the two West
Virginia Senators. Under the author
ity of the VanNess case, the California
case already referred to- and the case
of BENJAMIN Harrison in Indiana, the
positions in West Virginia were rem
dered absolutely vacant the moment
the two Senators accepted their COM
missions, and those vacancies can only
be filled by new elections. The Sena-
tors cannot resign from the army, ana
resume their seats in the Senate with
out being reelected thereto.
Ex-President Benjamin Harrison,
when reporter of the decisions OF the
Supreme Court of Indiana, accepted a
colonelcy in the Volunteer army dur
ing the Mexican war. He appointed a
deputy to attend to the duties of State
Reporter while he was absent. The
| Supreme Court of Indiana, under con-
r | ~A:A-.+:~.> nrtina1 with t1>a+ o. UIG1'
mission in the volunteer army created
a vacancy in the Office Of State Report
er, and that the deputy appointed by
Gen. Harrison had no right to serve.
The common law rule is, that no man
is allowed to hold two offices which are
Incompatible with each other and
that the acceptance of one vacates any
previous Office that is incompatible
with the new Office accepted.
There could scarcely be a greater in
compatibility between two offices than
between that of a soldier in the United
States army, liable at any time to be
ordered to a foreign country, and a
member of the Legislature. In times
of great war excitement, it might easily
happen that a majority of the legisla-
tors would be given commissions in the
army and ordered out of the State. In
such case West Virginia would be
without a legislature, and the gov
eminent would have to stop by reason
! of no appropriations being possible
| with which To- carry it on.
Realizing the Importance of the
| question to the people of West Vir-
| ginia, and believing that there must
be two sides to it, | have given it a
| great deal of study in order to try to
|
| latiye or judicial character under
which these Senators could predicate
| their claims to the retention of their
| seats.
| have not been able to find de-
| cisiOn either in England or the United
! States where an army officer was al
| lowed to retain any civil office. | have
not been able to find in any of the con-
| tested election cases in Congress or any
! Of the State legislatures a single in
| stance where an active military officer
| was held eligible to a seat in Congress
| or in any legislative assembly.
| have not been able to find any dis
tinction between officers in the volun-
| teer and regular service if on the ac-
| tive list. There is a distinction be
| tween officers on the active list, and
on the retired list. Representative
Van Ness was member of militia;
Representative Yell was a volunteer
officer; Representative Blair was a
regular; General Harrison was a vol
unteer.
The only distinction ever sought to be
drawn is the case of Gen. Wheeler. where