Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-12-02
WILL SCOTT BE SEATED?

WILL owl DA ~JLfA A<Ds
A Concise Review OF the Reasons Why He
should Not Be Allowed to Usurp Place
to Which He was Never Elected.
F'aifmont Index.
The brief in the case of John T. Nc
Graw and forty-nine members compos-
ing a majority of the last Legislature,
demonstrating against the seating OF
N. B. Scott as a Senator from West
Virginia. has been filed in the United
States Senate.
There are FIVE reasons assigned why
Mr.. Scott is not legally entitled to be
seated in the Senate under what pur-
ported to be an election by the joint
assembly of the last Legislature, any
one of which, If sustained by the facts,
will, under the precendents heretofore
established by the Senate, prevent him
from being seated In that body.
The first reason assigned is that Mr..
Scott did not receive majority of the
votes of all members elected to both
houses of the Legis Stature, as seems TO
be required under the act of Congress
regulating such elections The argu-
ment upon this point is not so conclu-
siye as on some other points raised IN
the case, yet it is fact that no SEN
ator has ever been seated who failed
to obtain the votes CT a mojority OF all
the members elected to both branches
of the Legislature at the first session OF
the Joint assembly. There were 81
members elected to both branches Of
the Legislature, and only So were per-
mitted to vote. OF these Mr. Scott re-
ceiyed 4S votes, Mr.. McGraw IS, and
Judge Golf l. The contention on this
point is that while Mr.. Scott received
a majority of the 95 who were allowed
to vote, he did not receive majority
of the 81 who were elected and entitled
TO vote. A somewhat similar case arose
from Kentucky a few years ago. OW-
ing to the death of Democratic members
of the Legislature, the Republicans Sc
cured majority Of those remaining
and elected DR.. Hunter by this major
ity; but though he had majority OF
the members remaining in the joint as
sembly, he did not have, as Scott did
not have, a majority OF all elected, two
of them being dead. The Governor of
the State took the position that he was
not therefore elected, though ne had
been declared elected by the president
OF the joint assembly, and he refused
to give him a certificate of election.
DR. Hunter applied to the Supreme
Court for a mandamus to compel the
Governor to certify his election. The
Supreme Court denied the writ, and
Hunter took his case to the Senate
upon the record of the action of the
joint assembly. Upon reaching Wash
ington and comforting with a number
of Senator'S of his own parry, he was
informed that it was useless to- press
his case; that the fact that he had not
received a majority OF all members
elected to both branches Of the Legis-
iature was fatal to his claim, and that
the only thing he could do was 10 go
back to his State, and wait until these
vacancies were filled and secure a re-
election. Under this advice, he aban-
doned his claim, and when the vacan-
cies were filled, the Legislature went
into another election, and Senator De-
Doe, a Republican, was elected, and is
still In the Senate under such election.
This is perhaps as near president as
has been established on this point
The second point raises the question
of the eligibility of the two war Senao
tors, and challenges their right to vote
in the joint assembly.
Mr.. Scott relies upon the action of
the State Senate as to these two men
as being final and conclusive under
that provision Of the constitution which
says that each branch of the Legisla-
ture shall be the sole judge of the
qualification, election and returns OF
its members. and his contention no
doubt will be that The State Senate
having passed upon their qualification,
election and returns, the United States
Senate will regard that as conclusive
and refuse to go into the question OF
their eligibility at the time OF the meet
ing Of the joint assembly. But the
precederts have been the other way
where the question OF proper inter
probation of the constitution Of State
bearing on the eligibility Of members
Of Legislature has arisen. The Du
pont case from Delaware is case sub
stantially like this. In that case, the
President Of the Senate mad become
acting Governor by reason Of the death
OF the Governor. Under the constitu-
ton of Delaware, member of the Leg
islature could not hold any other lucra-
tive Office under the State Government,
but it was claimed for him that mas
much as he was a member of the State
Senate, and was only acting Governor
by virtue of being President CT the
TIA a.