The evening times., 1900-01-27
THE N'GRAW- SCOTT CASE
Argument Before the Privileges and
Elections Committee.
Legal Questions Bearing Upon the
Right Of the West VIrEinIn senator
tion Of the Legislature Question
ed-The Contentious of Counsel.

ture or West virginia who question ihe
right Of Senator Nathan b. Scott of West
Virginia to a seat in the United States
Senate was begun before the Committee
on Privileges and Elections Of the Senate
at II o'clock this morning. Former Sena-
tor Faulkner ot West Virginia appeared
for Senator Scott. and Messrs. Welles. Ben
nett a WeIles and Judge Holt for ,he Ie-
monstrants. The members Of the COM
mittee present were Senators Chandler.
Hoar. Pettus. Harris. Pritchard. ana Nc
Comas
SenUto- Chandler read an agreement en-
tered into between counsel and the com
mittee concerning the admission Of the
journal. or parts thereof. Of the Lesisla-
ture OF West Virginia. as evidence. and
other papers. Mr. Chandler said that the
object Of the committee today was 20 hear
argument by counsel. and that then. If the
committee believed that the taking Of tes-
timony would be essential TO the just cen
sideration Of the case. this would De Or
dered.
The RemOnstrnntS' Case.
II was agreed in advance that the le-
monstrants should be allowed two hours.
Mr.. Faulkner said less time would satisfy
him. Judge Holt Of West Virginia. open
ed Tor the remOnstrants. He at first took
up the cases Of the so-caIled military STATE
senators whose votes were counted for
Senator Scott. the contention Of The re-
nonstrants being that those state senator's.
Gatzendanner and Pierson. had forfeited
their right to seats in the State Legisla-
Jure.
Judge Holt stated the facts TO be that
the gentlemen named were duly and Prop
erly elected to the State Legislature. There
was no question about that They served
through one session Of the legislature.
During the next session they accepted
commissions In the volunteer army of the
United States. Counsel read from the con
stiJutiOn of the State % West Virginia
which recites that amy person holding any
other Office 0i emolumeu- under the state
United states, or any fo-eigu government
legislature
The point dwelr on by counsel was that
The acceptance 10y NeSsrg- GaJZCndauuer
and Piersou OF Offices of emolument under
the Government 0i the United States vacat-
cu their offices as State senators. Counsel
cited a number of authorities 10 sustain
this point quoting az some length from
the report Of the Committee on the Judi
ciary of the H0Gse Of Representative iu
the case OF General Joseph Wheeler OF Ala
bsms
During a recess Of the legislature. Cat
zendauner and Pierson resigned their mill
tarv commissions and re-entertd the state
senate. There having been TWO vacancies
created by The gentlemen uUou their ac-
ceptauce Of military commissions these
men could not again di those vacancies
simply by yheir individual acts. The Leg
isIarUfe OF West Virginia voted that Cat
zcndanuer and Pierson were entitled To-
their seats but that decision said counsel
Tor the remOustrants. was not final as a
constitutional question was involved The
senate OF the United States was asked 10
construe the constitution of West Virginia
and 10 determine the qualification and re-
turns OF It's oNu members. Counsel
brought forward numerous authorities TO
sustain the contention that the Senate OF
the United States could 90 behind the re-
turns Of state Legislature.
Not a Majority Vote.
Judge Holt made a strong argument that
The returns OF d StaJe Legislature did not
bind the senate of The Uni,ed states Pro
ceeding in his argument he declared that
even though il should be held that Sena-
tors Gstzendanner and PiersOn did have a
right 20 vote. still. Senator Scott was no.
elected. as the voies cas-; for him did not
constitute q majority Of the joint assem-
bIy OF the legislature
The record" said counsel showed
upon IT'S face that the Legislature Of West
Virginia consisted Of ninety seven mem
bers and that Nathan r. Scott received buJ
forJy-eIgbr votes It was maintained that
forty nine votes were necessary 90 cOnsIi-.
tute a majority
Judge Holt said.
There is no question whatever that the
United States Senators must be elected 10y
the Sta-e legislature The joint assem-
bly, is he Legislature The language of
the act Of 1866 iu requiring a majority uf
the votes OF the joint assembly must be
cquivalCu, to requiring a majority OF the
legislature. The act does not say or mean
q majority of votes cast. bat a majority
of The legislature.
1T is the universal rule Of law applying
to all bodies composed Of a definite num-
ber formed for the purpose OF doing a
definite thing that a majority of the whole
is required. although a majority where
notice ls given TO an. may transact busi-
ness by a vote which represents the entire
body. The common-law rule IN such cases
was that a such a body all must be act
ually present and in a number Of English
mayor or a single member Of a city coun-
ell iuvalidated any election because an
integral part OF the body was absent The
later and better rule is thar those absent
must be considered in determining the
question OF majority. but that a majority
of the body can meet for the transaction
OF business"
Judge Holt then took up the contention
that the election Of Senator Scott was void
as the joint convention was held under a
fraudulent private agreement. and not un-
Ger the statute. II was maintained that
under the terms OF q compromise agree
ment. one senator. whom the State senate
: admitted by a resolution. spread uDOn the
records OF that body was suspended solely
for the purpose of affecting the election Of
a Senator. and one delegate. whose case
was concluded and who was entitled to
vote we're prevented from voting in the
joint assembly This private agreement de
MED Two men the right 10 vote when ttey
were not even parties to the agreement
contended Judge Holt.
Continuing ne said, The Legislature of
West Virginia could not give validity TO
an agreement. void As against public poll
cy, by spreading IL upon the records Of The
twt houses as separate resolutions. and
thus deprive two men not parties 10 the
agreement Of their constitutional right to
vote A majority which is sufficient 20
perpetrate q fraud is sufficient to ratisy
that fraud, and the contention that after
a fraud is ratified the United States Senate
must endorse IT is an insult TO the greatest
deliberative body OF the world
Judge Holt was followed by Frank W
Welles. of counsel for the remonstrants.