Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1903-01-03
lily MI Fan BARRED | | |. |: D
~ H. " E7S & 2 - =
TEE, TO MAKE A#REPoRT.
CONCLUSION he REACHES.

CONCLUSION he REACHES.
Contends That DR.. Mclean Has Al
ready Vacated His Office By Acc
cept1ng suInried Position Under
the Federal Goyernment-In vio-
1ation of State Statute.
The subcommittee of the House Com
.mittee on Privileges and Elections, will
submit three separate reports to the
i full committee-a separate report for each.
member. Though all reach their con-
illusions by different processes, all are.
substantially agreed that DR.. Mclean
is not entitled to sit as a member of the
House, not having taken the oath Mr..
Heermans contends that the Mecklenb11rg
man would be entitled to a seat if he
complied with the constitutional require,
ment as to taking the oath, and serves
notice on him that if he does not appear
here and take the oath and attend the
! sessions by a stated date. the seat will
be declared vacant.
Mr.. Cumming takes the ground that.
having refused to take the oath, Mr.. Nc
Lean is not member Of the House He
further contends that, though composed
of the same members, the General Assem-
bly, now sitting is not the General Assem-
bly, which convened last December, but
that 1t is an entirely new General Assem-
bly, crea ted by behest of the constitutional
convention and owing allegiance thereto.
He makes the point that until the oath
has been taken by any member of the
General Assembly. s prescribed by the
Constitution, such person Is not entitled
to seat
Mr.. West, the third member. contends
that DR.. Mclean has already vacated
his Office by accepting a salaried position
| under the Federal government, in viola
ton of the statute prescribing qualitlca-
tons Of members Of the General Assem-
bly,.
MR. VESTS REPORT.
Here is the report which he will make
to the Committee on Privileges and Elec-
tons:
December g. 1902
AS a member of the subcommittee Of
the Committee on Privileges and Elec-
tons, of the House of Delegates. to re-
port on the right Of Dr.. E. P. Mclean to
seat in the House of Delega ties, l beg
to submit the following report:
LII IIluSL NC UOIuc III IIillu liide Ills
case must be viewed under the former
Constitution and under the statutes en-
acted since 1870. Attention is called to s.ie
two vital issues that grow out of the Con-
stitution and out Of the Code Of 1887. The
| first is a constitutional declaration as to
eligibility to election to the House of
Delegates, and the second is both con-
i stitutional declaration and statutory
| enactment as to qualifications OF mem
Of Of Ha1o foc
capacity to hold a seat therein after cleo
| ton.
l. AS to eligibility to election. Article
| ". section 5, reads "and any per-
son may be elected a member of the
House Of Delegates, who, at the time of
! election, is - qualified to vote for
| members of the General Assembly &C
cording to this Constitution 1t
| will be observed that this section refers
to eligibility to election and to that and
nothing else. The qualification of a per-
| son as to his eligibility to election to the
! House Of Delegates are, therefore. con-.
| stitutional and cannot be changed by
| enlargement or by curtailment by statute.
It is to be stressed that there is no where
any statute that attempts any such
| change.
Pursuant, therefore, to Article v. sec
| ton S. on the constitutional declaration as
| to eligibility. DR.. E. P. Mclean was on
| the 5th of November, 1901, eligible to cleo
ton. and was elected to the House Of
Delegates, and in further pursuance
thereto, did take his seat on the 9Th Of
December, 1901, as the then legally auali-
fed member from Aecklenburg county.
He continued to hold this state of quail
fcation until March Goth, 1902, when he
became a. Federal officer.
! SECOND VITAL ISSUE.
2. This brings attention to the second
vital issue of the contention, viz: "quali-
ication'' of membership and capacity
to hold a seat in the House of Delegates
Article W, section 7, reads. .
Each house shall judge of the election.
qualification and returns of its members"
This constitutional provision must point
to the expectation that each House will
fix some test of election. and some STAN
dard Of qualification. In due time, stat
utes 1852 and 163 Of Code of 1887 follow
as the expressions of the General Assem-
bly, as to the qualifications of its mem
bers," and as to capacity to hold
seat" in either body.
AS section 162 refers in the main to
duelling,, section 1853 alone will be cited
in full, to-wit: mo person Shall be cap
able of holding any Office, or post men,
toned in the preceding section, who holds
any office, or post of profit, trust or
emolument, civil, or military, legislative,
executive or judicial, under the govern
| ment of the United States, or who is in
the employment of such government, or
who receives from It, in any way, emolu-
ments whatever and the acceptance OF
any such office, post, trust, or emolument,
or the acceptance of any emolument
whatever under such government shall.
ipso facto, vacate any Office, or post OF
profit, trust or emolument under the gov
eminent of this Comm onWealth. or under
any county, city or town thereof.
UNMiSTAkABLY CLEAR.
This statute In unmistakable clearness
sets forth the disqualification and the in
capacity to hold a State office of any
person, who accepts federal office. And
the only exception to it. is a subsequent
statute permitting school trustees to ac-
cept the Federal office of forth-class post
master. 1t is alleged. and tits not denied,
that on the Both day of March, 1907, Dr.
E. P. Mclean did accept a Federal office
by qualifying as a deputy collector OF
internal revenue under the government of
the United States Now, therefore, it is
contended, article v, section Z, that the
House of Delegates has the right to
Judge of the qualification of DR.. Nc
Lean, and that section 1853. Of Code of 1887
defines the qualifications. and that said
statute is not repugnant to article v.
section 5.
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