Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-01-04
THREsHING OVER OLD STRAW.

1t is rather surprising to find law
yer of the standing of Judge Edwin
Maxwell, of Clarksburg, taking the po-
sition that Messrs. Pierson and GetZ-
endanner are still entitled to seats in
the State Senate in the face of the plain
language of the Constitution which dis
bars them. AS precedents covering the
cases of Pierson and Getzendanner
Judge Maxwell refers to those of Fin
ley in our Legislature and Schenck and
Blair in Congress. His position is the
more remarkable because at the outset
the Judge claims to have read the arti-
Gle in the Register of December 26 last
in which these three cases with numer-
GUS others bearing on the subject were
cited together with the law and shown
in detail and at length either to have
no bearing on the cases in point as that
of Finley, or to be precedents showing
the validity of the Democratic conten-
ton that Pierson and Getzendanner are
not entitled to seats in the Senate, as
the cases of Schenck and Blair. To re-
fresh Judge Maxwell's memory we will
briefly recall those cases.
The case of Finley cannot be taken
as precedent since the question of
whether he was disqualified or not was
never formally raised, discussed or
passed upon by the Senate and Judge
Maxwell has no right to consider this
case as a precedent, even as "tacit''
precedent, because it was never brought
to official notice. How this question
would have been decided had it been
raised neither Judge Maxwell nor any
one else has any means of knowing.
The reason no action was taken by the
Senate was probably because Mr.. Fin
ley's successor could only have been
elected for the unexpired term and
could hardly have been seated in time
to have been of any use in the current
session, while there was not likely to
have been another session during the
term, and the only practical effect of
ousting Mr. Finley would have been to
incur the expense of a useless special
election. However this may be, Judge
Maxwell surely should be aware of the
fact that the case is no precedent for
those of Pierson and Getzendanner. AS
to the suggestion that the Governor
should have issued a writ of election to
fill the Office of Senator thus made va
cant by Mr.. Finley's acceptance of a
deputy collectorship in the Internal
Revenue service, it has no bearing for
the reason that the Governor had no
official knowledge of such appointment,
or the nature of the Office to which Mr..
Finley was appointed. And here again
there is no precedent or analogy. for
in the cases of Pierson and Getzendan-
ner Gov. Atkinson, himself, appointed
both of them to their commissions in
The army witt full knowledge.
AS to the cases OF Schenck and Blair
which Judge Maxwell dwells upon, they
are really illustrations of the very
point in the law which is the substance
of the Democratic contention, and
Judge Maxwell, himself unconsciously
makes the point but the stronger by
adding emphasis to it. The settled
doctrine under the provision of the
federal constitution, which is very sim
liar on this point to the Constitution
of West Virginia, is that the prohibi-
ton does not refer to the election, but
only to the holding of the office. that
is, United States of1iceholder may be
elected to Congress but must resign his
Office BEFORE the time fixed for en-
tering upon the duties of his Congress
sional Office, and if member of Con-
gtess. having entered upon his legisla-
tive duties, accepts federal Office he
thereby ipso facto vacates his Office
of Congressman. Generals Schenck and