The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-01-03

opecIuI LHSputCn 10 tNe lNtciIlEcNccr i .
CLARKSDURG, W. Va, Jan. a.-Yes-
tefdas your correspondent handed
Judge Edwin Maxwell. OF this city. a
copy OF the Wheeling Register OF De-
cembcr &c, containing lengthy article
on the case OF Getzendanner and Pier
son. as to their right to occupy scuts In
the senate, and requested the Judge 10
give his opinion In the case 'or the In
telllgencer This evening in an inter-
view with your reporter, the judge
made the following statement In re-
gard to the article referred to-
z II have looked over the article In the
Wheeling Register In relation TO the
right OF Getzcndanner and Plersor 10
occupy their seats In the senate during
the approaching session or the lcglsla-
ture, which E0u handed TO me ycstcr-
dag and requested me TO answer.
The article Is well written and ap-
pears TO cover everything on the sub
ject from the standpoint OF the writer
but very little appears to bear upon the
ease. The most of his references are to
cases In decidedly different courts under
constitutions and laws different from
ours, and can have no bearing here,
aud will not be noticed further --M..
The case Of Schenck and Blair aud
the case of Finley are In point and will
be referred 10 further on.
"Getzendanncr. and Pierson are both
members OF the senate and at the COM
mencement OF the war with Spain we're
commissioned by the governor OF this
state rs military officers and mustered
Into the volunteer army Of the United
States: can thev occupy their seats In
the senate at the session OF the legls-
lature TO meet the second Wednesday In
january next. Is the question.
This question Is to be determined by
the vote OF majority OF the senate.
but In deciding Il these two senators
have no right TO vote.
Hight to Their Seats.
Their right 10 their seats Is govern
cd by section IL of article of the con-
stitut!on, which Is rs follows:
mo person holding lucrative of
fice under . the United States ..'--
'stdiasinis Be eiigibie'to a seat In tbejlegis-
lature.' sA{;l q
THAT they hold their military. Of
fees under the United States and that
they are lucrative" Is admitted. but II
is denied that bS accepting military Of
fees they have forfeited their right to
seats In the senate.
Senators are elected for four years
and during that time have two regular
sessions. or sittings OF f1rty-tlve days
each rs provided In the constitution.
subject to called or extended sessions
and during all the remainder OF the four
years have no further or other scna-
tor!al duties to perform. When these
senator's accepted their military COM
missions they were not discharGing any
senatorial duties and knew they would
have none 10 discharge until the second
Wednesday In January next. the time
fixed In the constitution for the next
session or sitting OF the senate. They
have until that time 10 elect whether
they Will remain in the army or take
thel: seats IN the senate. If they elect
to remain In the army at thai time, they
thereby forfeit their seats In the senate
and the senate nny then or afterwards
declare the seats vacant. but II they at
that time appear and take their seats
In the senate their military commits
sions are then abandoned and vacated
according TO the common law II That is
TO apply. but. ms am Informed. they
having both resigned their military COM
missions, no question Will arise as 10
that.
by what rule are the members OF
the senate 10 determine whether or not
these military senators are entitled to
occupy their seats? It Is question
that addresses Itself TO their Judgment
and discretion In tine light Of all the
surrounding circumstances. and In adj
dillon they may be aided and assisted
In coming to conclusion by consider
Ing what their own body has done un-
der Ike circumstances and what other
legislative bodies have done under con.
stitutions like our own. -.
The Prcccdcnts Cited.
eve have been. living under our pres
ent constitution only from 1872. which
Is very short time In the history of n
state, and that time has furnished no
ad1udlcated precedent on the question.
but two cases are referred to which are
claimed by some to be precedents. The
first Is the case Of Oxley, who was n
senator and at the} same time was q
clerk In the auditors soflice.I' ] do NOT
attach any weight, to his precedent be-,
cause would mot like;to claim 1 hat a
'otericai position III the auditors office,
IL an office within the meaning Of the
constitution OF this state. ~ 7>as
= THE other Is the case OF Finley, who
was elected In November. 1892. 10 tho
senate for the full term OF four years.
In the spring Of 1899 just after the !egis-
luture adjourned, Finley was appointed
deputy collector OF internal revenue and
qualified and acted rs such until just
before the senate met In January, 1895.
wien he resigned rs revenue collector
and took his seat In the senate. Deputy
revenue collector is q lucrative office.
FlnlcF occupied his seat In the senate
during the session OF 1895, without any
objection being raised.
This case IS exactly like the case OF
Getzendaaner and 'Piersoa. except that
Finley held a.''incTatire" federal Office
for almost the whole time between. the
two sessions or sittings OF the senate In
which he was cntltledSto occupy u seat.
''fn one respect this case is Il conclu-
sive precedent, II the seats OF Getzen-
dannor and Person were forfeited and
II was the duty OF Governor Atkinson
to issue writ Of election the seat OF
Finley was forfeited and$it was the
duty OF Governor MncCorkle TO issue n
writ OF election. but he didlnot d. so
and thereby mad" u preeedent whicn
Governor Atkinson was bounl TO fol-
low. .H ~ -..a
"But the seat OF Flnles' was not foI-
feI.ed and Nl1cCorklc did right tin re-
fusing to issue n writ OF election ~.
Question was Never Raised.
"If the question OF the right OF Finley
to occupy hIs sea; had been raised and
determined by the senate. ,itwould have
furnished u precedent FOR the present