The daily silver state. [volume] (Winnemucca, Nev.) 1903-1907, 1904-03-07

qualifications of its members may seat
any person who presents himself as
a senator-elect The power seems to be
absolute in that body. 1t is equally
true that Senator Trumbull was seat
ed under circumstance somewhat sim
liar to what Judge Fitzgerald's case
would be, if he should be elected. Blu
me Irumbull case was dec ded Amos.
utty years ago., and how can the judge
u anyone else know that the prece-
aent would be followed now. Such
,. ecedents are not binding upon the
senale. Indeed, political considerations
frequently control in the seating OF
.nempeIs in both houses of congress-,
esal dIess of ~precedents. In this case
Judge Fitzgerald ineligibility under
ne construction is so perfectly clear,
NAT it would be almost political idiocy
or the legislature to elect him on the
strength of a precedent established
.imost half a century ago., and which
ne ena can disregard at it's own
weet will.
1ab liz 40 I'LL III ILLS ildli
a the mere question of what the
enate might possibly do in the event
If the judges election. Grant for the
AXE of argument hat the senate has
ABSOLUTE power to seat when it will
Ind may entirely ignore our state con-
sIitution; and still the question re-
mains. Has Judge Fitzgerald the
l0hf RI nArAnt E..,-ole - IL (; - . -
or an office to which the constitution
If his own state declares him to be
Ineligible? He has taken a solemn
oath to support and defend hat con-
5titution. He has taken no oath to
support, protect n defend any pre-
cedent of the senate with reference to
he seating of members. What right
mas he, then, to become a candidate
Tor the senate in the hope and expec-
-ation that he will be seated in direct
violation of the constitution which he
aas sworn to support, protect M de-
Iend? Whether the constitution of
Nevada is binding upon the senate or
lot, 1t certainly is binding upon Judge
Fitzgerald and the opinion is very re-
spectfully ventuled that he has Meth
ar a legal nor a moral right to become
| party to its violation.
The reason for this. constitutional
provision Is perfectly clear. 1t was In
ended to preserve the purity of h
'ourts by prohibiting judges from en-
5aging during their terms in a scram-
lie for political preferment on other
han judicial lines. The trainers of
he constitution recognized the fact
nat judges are nothing more or less
han men and have the usual imper-
-ectlons and weaknesses which pertain
20 humanity in general. They knew
hat If a judge was full of political
ambition. and eligible for strictly polit.
cal office, he might use his judicial
,ffice to advance his political interests
and thus polute the very fountain Of
justice. Hence. they sought to segre-
sate to the fullest extent possible the
'iilces that are judicial from those
ma are usually considered political.
mo one will deny tina the United
states senatorship is an office No
me will claim that it is a judicial Of
ice-it is legislative in character.
there probably has never been a JUS
ice of u supreme court who would
nave exchanged his judicial office for
any other within the gift of the state
unless it was the United States sena-
eorship. Therefore, If this constitution
al provision does not apply to that of
ice, it is virtually a dead letter.
1T is also unfortunate for Judge
fitzgerald that he is compelled to rely
upon the Trumbull case as a precedent,
for there is a wide difference between
he facts of nat case and the case OF
Judge Fitzgerald as far as 1t has gone.
Judge Trumbull did not cling to his
judgeship until he was sure of an elec-
ton to the senate. and her step ou
of n office into the other. He re-
signed the judgship a year and sever
months before he was elected senator
and made his nva for the senator
ship as a private citizen and not as
a judge. If Judge Fitzgerald had re.
signed about six months ago. his case
If he should be elected. would be ex-
aetly parallel with that OF Judge
Trumbull. Possibly this difference
may affect the cold law of the case
but 1t is well worthy OF consideration
because of Its bearing upon the ques-
tion of political n judicial ethics
wi ich are involved in the question.
" Perhaps. though. Judge Fitzgerald