The times. [volume] (Washington [D.C.]) 1897-1901, 1900-01-28
SENATOR SCOll'S STATUS
The McGraw Protest Considered by
the Senate Committee.
Arguments Made in Behnif of the
R.moBsirants ts-A Grave ronstitu-
dionnl Question Alleged 10 BE In
yoI,ed-C. j. Faulkner Maintains
the Regularity of the Election.


tions Of the Senate heard argument OF
counsel Yesterday in the case of John I.
McGraw ard members of the Legislature II
West Virginia against Senator Nathan b.
Scott; Of that State The remoastrants
were represented by Judge Holt, cf Wet
Virginia.. Henry n Russell. Frank L.
Nelles, Claude ~ Bennett and j. C.
Welles Senator Scott was represented ty
former Senator Charles J. Faulkner Of
West Virginia. The day was consumed u
the hearing. and at O'Clock the commit
Tee went into executive session. The
members will be furnished with a state
ment af what the remonstrants desire to
prove. Upon this the committee will de-
ierminp whether II will go into the ques-
tions of fact and hear testimony, ard
whether ii will determine the case by pass
ing only on the law points involved. TIE
opposing counsel being agreed on many Of
the facts
The opening argument. was made by
Judge HUlt. The first contention was that
Senator Scott did not receive majority Of
the votes of the joint assembly of West
Virginia -Ie said that the record shows
upon its face that the Legislature of Wet
Virginia consisted of ninety-seyen mem
bers and that Senator Sect re1e.ved hut
fcrty-eight votes. He held that two of the
votes cast for Senator Scott were Of State
senators who had vacated their Offices 10y
accepting military commissions in the Vol
unteer Army Of the United states.
The point dwelt by counsel was that
the acceptance by Messrs. Gatzendanner
and Pierson of Offices of emolument under
the Government of the United States vacat-
ed their offices as State senators. Counsel
cited a number of authorities to sustain
this noint quoting at some length from
the report of the Committee on the Judi
ciary Of the House OF Representatives in
the case of Gen. Joseph Wheeler Of Ala
hama.
During a recess of the Legislature. Cat
Zendanner and PieTson resigned their mill
tary commissions and re-entered the State
senate There having been two vacancies
created by the gentlemen upon their ae-
ceptance of military commissions. these
men could not again fill those vacancies
simply by their individual acts. The Leg
islatu-e OF West Virginia voted that Cat
zendanner and Pierson were entitled TO
their seats, but thet decision said counsel
for the remonstrants, WAS not final. as a
constitutional question WIS involved. The
Senate of the United States was asked 10
construe the constitution OF West Virginia
and to determine the qualification and re-
turns of its own members. Counsel
brought forward numerous authorities to
sustain the contention that the Senate of
the United States could 20 behind the re-
turns ii State legislature.
jude Holt said:
There is no question whatever that the
United States Senators must be elected by
the state legislatures. The joint assem-
bly, Is The legislature. The language OF
The act OF 1856 in requiring a majority OF
the votes of the joint assembly must be
equivalent TO requiring majority OF the
legislature The act does not say or mean
majority OF votes cast, but a majority
ui the Legislature.
III is the universal rule of law applying
10 ell bodies composed of definite mum
Der formed for the purpose of doing a
defiai'e thing that a majority OF the whole
il required. although a majority. where
notice is given to ALL may transact bust
ness by vote which represents the entire
BODY The coTnmon-law rule in such cases
WAS that in such body all must be act
uaily present. and In number Of English
cases il WAS held that the absence of the
mayor or a single member Of city coun~
ell inNaiidated any election because an
integral part Of the body was absent The
Iaier and better rule is that those absent
must be considered in determining the
question of majority. but 1hat majority
ei the body can meet for the transaction
Of business
Judge Holt entered upon discussion Of
the contention OF the remonstrants thai
the election of Senator Scott is void on
the ground that the joint convention was
held under fraudulent private agreement
and not under the statute. He fol-
lowed by Frank L. Welles. who maintained
thai Senator Scott at the time of his cleo
ton as a United States Senator was not
an inhabitant of the State in which he
was elected, as required under the Fed
srsl Constitution. He admitted that Sena
tor Scott. at the time of his election was q
citizen of West Virginia. Mr.. Welles said
In substance that for a great many pur-
poses the terms inhabitants" and resi-
dents are synonomous. But very differ
ent meaning was intended TO the word
-'inhabitant." 4" as used in the Constitution.
At the time OF his election. Senator Scott
was holding a Federal appointive Office
at Washington. and living in that city.
There is no authority which holds that
a person residing in Washington holding
an sppointiye Office is an inhabitant OF the
State frcm which he came. said Air.
Weles. AN the authorities hold the 9TH
er way. The contention that this would
deprive Senators ot the right to reelection
Is not sound II man is elected by his
4
ants with him to represent them for a
term Of years. he retains his inhabitancy
because he remains their agent in con
Etant touch with them. But a man who
leaves his State under an appointment Of
she Federal Government and acts not as a
representative of the State. but of the Fed
..fal Government. and inhabits the city OF
Washington for an indefinite period. comes
within the constitutional inhibition.
~ n
Revenue has no definite term. and the oc-
cupani of that Office. being absent from
his State for sn indefinite period. loses his
inhabtancy."
A. The afternoon session OF the com
mittee former Senator Faulkner presented
the case for Senator Scott He maintained
that the joint assembly met regularly.
that ~ votes werc cast for Nathan y.
Scott 4S for John T. NcGraw. and for
Judge Goif. Mr.. Faulkner proceeded 10
discuss the question whether Senator
Scott at the time OF his election as a
United States Senator was an inhabitant
OF West Virginia. Senator Pettus inter
ruPted him and told him to pass the point
by. Senator Burrows also said Yes. you
need not discuss that" This was taken TO
indicate that the Senators thought the
point made by the remonstrants against
Senator Scott was not worthy OF further
consideration.
Passing to the question OF the final
right of the legislature of a State TO con
struc the constitution OF that State. so far
as 81 concerns the eligibility OF the mem
bers OF such Legislature. Mr.. Faulkner
maintained vigorously and eloquently that
the United States Senate could not enquire
into the constituent parts of the Stale [
legislature when the legality of those
parts had been determined by the legisla-
fire itself IIa d.fied tho retnonatrantg 10