Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-12-04
JUDGE JOIN BRANNO!| s
Brief for Hon. John I. McGraW and !
Majority Of the Legislature,
REMONSTRANTS, AGAINST Ma
THAN B. SCOTT, CLAIMING TO
HAVE BEEN ELECTED UNITED
STATES SENATOR FROM THE
STATE OF WEST VIRGINIA.

In the SENATE OF the DnItcQ SIatcbs-
The brief presented by Messrs Welles.
Bennett & Welles seems to be thoroughly
full on the questions involved; and ! have
concluded that cannot add materially to
it, but by this paper l have deemed 1t
proper to add what l regard as conclus-
i've on particular question involved.
1t is claimed by protestants to the adrnis-
sion of N. B. Scott as a member of the
Senate of the United States from the
Ctate OF West Virginia that H. c. Get
zendanner and E. G. Pierson, at joint
convention of the two bodies of the Legis-
lature, voted for n. B. Scott for Senator,
and against protest. Their votes given to
Scott were counted to make As votes, and
claimed to make a majority Of one vote
Said H. c. Getzendanner was claimed to
have been elected a Senator at general
election held in 1896; that ne qualified and
acted as such, at session in the year 1897;
that after said service he was what is
called a ''ho.d-over Senator" that on the
9th day of July, 1888, he accepted the office
and acted in the capacity of Captain in the
Second Regiment, West Virginia Voun-
teers, in the United States Army.
Said Pierson was also elected a Senator
at said general election in 1896. He acted
after accepted a commission in said army,
on the 4th day Of July, 1898, and SO acted.
II is here claimed the acceptance of said
military positions, and by so acting there
under, the said Getzendanner and Pier
son respectively vacated their offices and
seats as member sof the Senate of West
Virginia.
That such acceptance operated ipso facto
oLo =. ~,
respective offices of Senator, and they
had no right at the time of the election
for Senator of the United States to yo.e.
or participate therein. as members Of the
Senate.
By their votes, the 48 votes were counted
for Scott, and with them he received only
an apparent majority of one vote in joint
convention But for scheming methods,
thEeats of exclusion of members ana by
such exclusion until after the Election CT
Senator. the votes of Getzendannec and
Pierson would not have been sufficient.
All the evidence in regard to the means
and methods referred to are set out au-
chemically in the brief of Messrs. Welles,
Bennett & Welles
1t is claimed, by some. and enormously
contended, that member of Congress can
. member Of Congress, and if so it is as
serted by a fegned analogy, a State Sena-
tor can do so. This is clear mistake. The
Federal Constitution and the Constitution
of West Virginia, in language in this re-
gard, are different. The Federal Consti-
tuition in its parts applicable to such ques-
ton, Is as follows: No person holding
any office under the United States shall
f.n aIN1r - =
during his continuance in office
1t is not necessary, in this paper to
discuss the matter as to the effect of
member of Congress accepting a military
commission The trend of the holding,
however, is that such acceptance vacates
the place Of such member of Congress.
Mr.. Madison, who was the great con-
structive statesman of his day and the
chief maker of the Federal Constitution,
in the SD Article of the Federalist III
treating of the qualifications of members
OF Congress, employs when having i'll his
mind the language above quoted, tee fol-
lowing expression: During the time Of
service must be in no office under the
United States"
We can well see by the Constitution of
the United States, as to the legislative de-
poi liiicill VI lllc N1ONcIItlHSAL At only lOOhS
to the sole provision for is Legislative
Department, and in no respect does Il in
wade or prescribe any test or qualification
for member of the legislative department
OF a State. The sovereign right of State
to prescribe qualifications for members of
its Legislature is unimpaired except as
limited by recent amendments, and they do
not apply, in any sense, to the question in
hand.
We have in the State of West Virginia
the following Constitutional provision:
mo person holding a lucrative office un-
der this State, the United States, shall be
eligible to seat in the legislature" Our
Constitution contains no such words APP
plicable to members of the Legislature, as
the following in the Federal Constitution:
mo person holding any office under the
United States shall be a member Of either
House CCongress) during his continuance
in office"
Now in our State Constitution, the words
lucrative office" are employed The def
milton of lucrative" when applied to an
office, is that TO which there is attached
a compensation for services rendered. An
derson's Dictionary, page Gal; 44th In
diana APP, 405. All >are the same on this
subject The courts say when employed
in Constitution they know no other