Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1899-01-06
GETZENDANNER AND PERSON.
Legal View of the situation as Presented
by Inei. cts.

by Inei. acts.
10 the Editor OF the Register.
IL is apparent now Lnar by reSigna-
ton OF Getzendanner and Pierson OF
their respective offices in the army,
they Will present themselves at the
coming session of the Senate to re-
occupy their seats in the Senate.
In this connection il is claimed a
member of Congress who may hold a
military commission during mis- term
may resign such commission and con-
tlnue member of Congress, and if So
\ IL is asserted by a feigned analogy, a
state Senator can do the same.
The Federal Constitution and the
Constitution OF West Virginia, in Ian
guage, in this regard, are essentially
different
The Federal Constitution in it's parts
applicable to the question-Article list
I'd subdivision of Sec. 6 thereof-is as
follows: mo person holding any office
under the United States shall be a
member of either House" (of Congress-
during his continuance in Office"
The words during his continuance
in office" no doubt, have suggested the
thought that General Wheeler can re-
sign his military office and continue
to be a member of Congress, and no
/ doubt this language of the Federal Con-
stitution occasioned General Wheeler
to offer his resignation to the Presi-
dent, as has been stated. 1t is not nee
essary in this paper to question Gen
eral Wheeler's right to continue upon
such resignation to be a member, be-
cause the Federal Constitution and the
Constitution Of this State. in that re-
gard, are not the same. The trend OF
rulings as to a member of Congress
under like circumstances, is that they
can not resume their seats in Congress.
That, however, is not material on the
matter proposed to be presented by
this paper. Mr.. Madison, who was, in
chief, the maker of the Federal Con-
stitution, in the SD article of the
Federalist, in treating of the qualifi-
cations to be members of Congress,
employs, when having in his mind the
language quoted above, in the then
proposed Federal Constitution, the fol-
lowing expressions, as to member of
Congress: During the time of service
must be in no Office under the United
States" The time of service, as eX-
pressed by him, would seem to embrace
the full term.
We can we'll see by the Constitution
of the United States, as to the legisla-
tive department of the government, it
only looks to its sole provisions, for it's
legislative department., and in no re-
spect does it invade or prescribe any
test or qualification for members of the
legislative department of State The
cNNprpiUn TiOht of n ~ tn no
qualifications for members of the leg
islature is unimpaired, except as linn
tied by recent amendments, and they
do not, in any sense, apply to the ques-
ton in hand
We have in this State the following
Constitutional provision:
mo person holding lucrative Office
under this State. the United States
shall be eligible to seat in
the Legislature" Our Constitution
contains no such words applicable to
members of the Legislature as the fol-
lowing in the Federal Constitution, ap-
plicable to members of Congress: mo
person holding any Office under the
United States shall be a member of
either House during his continuance in
Office"
Now, as to our Constitution the words
Lucrative office" are employed The
definition of lucrative when applied to
an Office. is that TO which there is at
tached a compensation for services rem
dered. Anderson's Law Dictionary. p.
cal, 44th Indiana, 4o5. All authorities
are the same on this subject The
courts say when employed in a Consti-
tuition they know no other test. Amer
lean Encyclopedia of Law, vol. IS, p.
1892. The word 'eligible," above quo
ted, is in our Constitution. No one
will pretend that either Getzendanner
nor Pierson would have been eligible to
have been elected members of the Leg
islature, after they had accepted and
were holding military offices, whether
under State or Federal authority. Hav-
ing been appointed TO military Offices,
since their election, and having accept
ed and acted, have they vacated their
seats?
The word eligible" in our Constitu-
ton, embraces both ideas of being
elected and of continuing to hold after
accepting a constitutioRally declared
incompatible Office. The acceptance OF
such incompatible Office, ipso facto, is
an abandonment, resignation and vaca-
ton of a seat in the Legislature.
Am. & Eng. Ency. OF Law, vol. 6, d.
AZ, and notes.
Brightly, p. 143.
18th Indiana, p. 327.
18th Cal, p. III.
Sd New, p. 566 -
McCrary. sec. sol.
Law of Elections by Payne, sec. 55S
McCrary on Elections, sec. 305.
Schell, Judge VS.. Cousins, x Virginia
p. 329.
These authorities have direct appli-
cation as to the word eligible" in our
Constitution and hold that such ac-
ceptance Of an incompatible Office va
Gates a seat in the Legislature.
Any other construction Of the We
eligible would lead to the concl' yon
that an eligible person might be 4ecied
to-day to seat in the Legislature and
on tomorrow accept constitutionalliy
declared incompatible Office.
No eyigency in political conditions
or of parties can justify Getzendanner
and Pierson to resume or be admitted
to their seats. No considerations ot
mere personality to fill place can lus-
tify such fragrant disregard of II
Constitution. The retrospect on s, b