Year: 1877

WASHINGTON, feD. 6.-EvaftS clos
ed the argument for the republicans.
The Commission had decided to re-
ceiye evidence touching the eligibili-
ty of Humphreys, but had not passed
on the question as to what the effect
is as to the acceptance or rejection Of
vote thus challenged for ineligibili-
ty. 1t will receive evidence on that
point, which is offered; first, as to
whether the exception to Humphreys
vote is maintainable; second, wheth-
er, if maintainable and maintained,
the constitution allows the rejection
of a certified vote transmitted and
opened, on that ground. He argues
that the other side had failed to prove
that he held office when he voted, and
the burden Of proof was on them.
Could the law hold an office -holder
to the performance OF his duties one
moment beyond his will. The au-
thorities were clear that a citizen
might resign his Office, even without
his resignation being accepted. This,
then, being rejected from the commits
sion's consideration, the sole duty for
the commission is tn determine out
of these three certificates what and
how many votes are to be counted
for the state. He argued that the
first certificate was clear and certain.
He argued against the other, and
represented the absurdity ofa circuit
Judge making law which should
receive the vote of a state and compel
a judge of the supreme court to ac-
quiesce. You must never lose sight
of the matter that you are to advise
what votes, and how many, shall be
counted by the two houses, and when
you have determined that extraneous
evidence shall not invade the regular
ity of the finished transaction Of a
state, you have determined as by q
double decision, that it shall not be
invaded, disparaged or exposed to
any question by mere certificate,
which is its own agent and author
a volunteer in disturbance in the
counting of the votes.


Merrick closed the argument ON the
democratic side. He said the burden
of proof rested on the other side, to
show that at the time of casting the
electoral vote Humphreys did not
hold Office. He argued that until his
resignation was accepted by the pow
er that conferred the Office, and that
fact appeared on the record, he must
be held to be still occupying the of.
flee.


Representative Hoar put the case
of an officeholder being elected To
the senate, and asked whether, if his
resignation of the Office were not ac-
cepted, he was thereby to be kept
from his seat?


Merrick replied that the fact of his
being admitted to his seat in the Sen.
ate would be a discharge from the
Office which he had held, provided lac
had prior to that time rendered his
resignation.


Hoar inquired whether the same
rule would not apply in the case oi
an elector, as well as in the case of q
Senator?


Merrick replied that in the case ol
q Senator the disability would be
only personal, while in that of an
elector it was impersonal-in other
words, q State was positively forbid,
den to appoint an office-holder as an
elector; it was limitation upon the
power of state, and not a. personal
disability of the man.


| Representative Abbott-You also
claim that even if the acceptance of q
resignation was not necessary, tht
resignation itself must be made to the
court.


Merrick-Unquestionaply. The res
ignation must be made to the power
that gave the appointment. Suppos,
Humphreys had resigned to the clerl
of the court, addressing a private let
ter to the clerk at Newark, Ohio
would that be sufficient?


The presiding justice-But if h,
! sent il to the Judge, and the judg,
| ordered it to be filed?


court is in session, then it is an act O.
the court.


Representative Garfield-Do yo,
hold that in case of a long vacation
or in case of a court being abolished
by law, or in case of the death of tn,
judge who gave the appointant thi
office, he never could have resigned


Merrick-.I should have referred
that case to one Of the returning
boards in the north. hardly know
what reply to make.


| Garfield understand your posi-
ton to be that he could not resigl
except while.th court was i'm session


Merrick--I presume that the dealt
and extinction of an officer, and tn,
abolition of government, and tn


wiping out of nation, make excep
tions to all principles Of law.


j Justice Miller-YOu say that tn


distinction between man who &C
cepts the office of senator and a maj


who accepts the Office Of electOr,


that in one case the objection goes t


the power of the state, and in tn
other case II does not. What Is III


Difference in the question of tn
power Of state2


Merrick-In one case the prohib


tion is that no person shall be Q rer


rcsentative or senator who has nc
attained certain age; in the othe


case 1t Is that NO person shall be aI


pointed an elector who holds q
Office of trust or profit. Whereve
there is power to do an act, the done


of the power can only exercise it &C
c0rding to the precise restrictions an,
Limitations Of the donor.


Merrick then passed on to the qucs
; ton of the rival certificates, and wa
'larguing in favor Of the legitimacy Q