Evening journal., 1914-09-30

uOn, or winch has any bearing
upon their eligibility in case they
DO move from the District from
which they were elected.
Relative TO Chauncey =. Holcomb,
appointed clerk by the United States
Senate Committee on Coast and In
sular Survey since the regular ses-
sion of the General Assembly, we
are Of the opinion that his appoint
ment by said committee does not
constitute the holding of an Office
under the United States within the
meaning of the fourteenth section
of the second article of our State
Constitution. We are drawn to this
opinion by the rulings of the Su-
preme Court of the United States
in the case of United States v. Ger
maine, 90 u. S. 500, which case has
been followed by the same court in
numerous cases since, and the rul-
ing in which case has been adopted
by text book writers as the undis-
puted law. This case and the cases
which have followed it have clearly
and definitely decided that an Office
under the United States can only be
created by an appointment by the
President or by the Judicial De-
partment, or by the head of a de-
partment of the United States Gov
ernment. Mr.. Holcomb falls within
none of these classes. His position
as clerk of the committee in ques-
tion was that of an employe, rather
than as the holder of an Office.
Section 2 of Article II of the Con-
stitution of the United States con
stituted the basis Of the decision in
United States V. Germaine This
provision of the Constitution is as
follows:
He .the President) shall
nominate, and by and with the
advice and consent Of the Sen
ate, shall appoint ambassa-
dors and consuls, Judges of the
Supreme Court and all other
officers of the United States,
whose appointments are not
herein otherwise provided for,
and which shall be established
by law; but the Congress may
by law vest the appointment Of
such inferior officers as they
think proper, in the President
alone. in the courts Of law. or
in the heads Of departments.
We are therefore Of the opinion
that Mr.. Holcomb is in no respect
ineligible to sit in the House Of
Representatives at this session.
In regard to Zachary T. Harris,
elected from the Sixth Senatorial
district OF New Castle county. and
who was at the time of his election
postmaster at Glasgow, but who
resigned from such office prior to
the sitting of the General Assem-
bly, in January, 1913, and prior to
his qualification as senator from
such district in the General Assem-
bly,, We are of the opinion that
there is no question in regard to his
right to sit at this special session
of the General Assembly. We have
found on examination of reports.
of contests in various legislatures
and in the Congress of the United
States, that similar cases to his
have frequently arisen, and that
whenever the persons elected have
ceased to hold the disqualifying Of
flee before the time for qualification
to hold the Office for which they
were elected, they have been uni
formly held entitled to sit in the
Legislature to which they were
elected. This has unquestionably
been the prior practice in our own
State.
In Senator Harris case, where
there is also the further fact,
which we also deem conclusive
upon the present question, that in
the session of 1913 his qualifica-
tions were considered and passed
upon by the Senate, and that his
right to sit is no longer an open
question.
The case of Albert I. swan, ap-
pointed postmaster at Delaware
City since the regular session Of
the General Assembly in 1913. to
which he was elected a Represen-f
tatiYe, and the case of Thomas o.
Cooper, appointed by the Presi-
dent and confirmed by the United
States Senate as inspector of
drugs at Philadelphia, since the
regular session of the General
Assembly in 1913, to which he
also was elected a Representa-
tive, present more difficult ques-
tions. We understand that il is
fact that both of these gentle
men, prior to the sitting of the
special session of the General As
sembly, sent in their designations
from their respective Offices under
the United States, and that both
of their said designations are now
subject to acceptance by the
United States. Whether such
designations have been accepted
or not we are not advised.
It seems clear that the offices
held by Messrs. Swan and Cooper
fall distinctly within the descrip-
ton Of Article II of our State
Constitution, and that during
their continuance in such offices,
they could not be Representatives
I'm the General Assembly. Wheth-
er by their resignation from such
Offices before the sitting of the
special session of the General As
sembly they could reinstate them
selves in their Office of Repre-
sentative. under the peculiar Ian
guage of Section IA of Article II
is in our judgment doubtful We
have given the question a very
careful study, inasmuch as
resolution of the House, declar-
ing the seats vacant, would make