Year: 1877

LILO Ietter VI humphreys 70 Judge w OOQ
and the reply Of the same were not the


act OF the court, and that the certificate
Of the clerk of the Circuit Court Of Flor
ida, received this morning, showed that
the esignstion had not been made a
matter of record IN the Office of the court


He discussed the case under the first part
of the order of the court to consider only
the papers contained in the package
opened by the President of the Senate.


He claimed that the lists submitted
with certificate No 3, were ettectus!
and delay in the performance of plain
duty did not prevent the performance of
that duty. In conclusion Mr.. Green
contended that the laws passed by the
legislature of Florida since January Isl,


in relation to the recent election were
not er post facto laws within the
meaning of the Constitution. He
gave notice to the other side that un-
der the order of the Commission
they should insist that the Commis-
sion could look into the proceedings un-
der quo Udrranto.


Mr.. Shellabarger followed on the other
side. He said that since he had heard
the decision of the Commission refusing
to hear testimony in relation to the quo
snarranto proceedings he had thought all
discussion of that subject uncalled for.
In the papers laid before the two houses
there was but one allusion to these pro.
ceedings in quo ,caTranto, and that was
in a certificate of Governor Drew.
These proceedings were not before the
Commission and could not be brought
here by sllusion in the governors message
He submitted the proposition that all
acts IN relation to the accomplishment OF
a certain act must anticipate the act itself!s
and on this proposition every act that
followed the electoral vote was excluded.
He contended that the power Of q seal
was limited to the appointment and no
act pertaining to the appointment had
been made and the office has passed
away.


Mr.. Thurman asked, supposing the
case to be as stated, would there be
action looking to an inquiry, whether
any appointment was made.


Mr.. Shellabarger SAID that when sll
that could be done by State had been
done according to the require
ments OF the law of the State
existing on the day of the election, the
power of the State passed away and 1t
became thereafter a Federal trust. The
power of the state was on that day for
ever ended. He conceded that it was in
the power of state to try by her own
machinery the power OF her electors, but
the scrutiny must be made prior to the
discharge of the functions OF the office.
Machinery to contes. an election after
the office had passed away would be an
sbsurdity.


He argued that the formal character
of the certificates was entitled TO some
consideration by the Commission, and
contended that the statutes and action
of the courts OF the State were matters
that the Commission should inquire into
to establish the legality OF certificate
No. /. The Commission had before
them in the second certificate not only
the certificate OF the Governor but q
tsbulated statement of the precise num-
Der of votes cast in each county III the
State for the different candidates. This
certificate had the authority OF the ex.
ecutive, Judiciary and legislature. all
speaking in unanimous and united
voice upen the question which is to
be decided by this tribunal. 1t
might be said that the second certificate
did not arrive in Washington BY the
first Wednesday in January, and was
therefore Loo late. He cited the authorl-
ty to sustain his proposition that the
clause was directory and not mandatory.
The mere fact was did the electors vote
according to the Constitutional require
ment. and mere transaction Of their
messenger to the Vice President, the in
cidentisl matter and time with the pre-
scribed limits was not OF the essence of
transaction. The main point was that
the votes should be received before the
count took place.


Mr. Evarts closed his argument on the
Republican side. He said that the Com
mission has decided that in one psrijc i
lar it will receive evidence, touching t"o
eligibility of one the Florida eIect".S,
Mr.. Humphreys. do not understand
the Commission to have ever pa'sod on
question what the effect is rs to the nccep-
tance or rejection of the vote thus chat
lcnged for inelgibilty, but 10 have
decided that on that point 1t will receive
evidence which may be offered: First,
as to whether the exception taken TO Mr..
Humphreys vote is mslntalnabLei
and, second, whether if the MAIN
tsinable and maintained methods
of the Constitution permit OF
any rejection from the certlfcsted vote
tran smtted and opened, oa that ground.


Mr.. Evsrts went on to argue that the
evidence,in regard toHumphreys holding
office fell short of showing that hr was
An officer at the time OF casting the elec-
toral vote, aud that the burden OF prov
inv il rested with the objectors. VAST,
he asked. to be pretended that under
law there was any power TO hold the oe-
cupant of civil office to the perform
auce of ITS duties moment beyond his
will? The authorities, he said,
were clear as 70 the right OF
citizen resigning an office, even

without his resig siion being accepted.
All that was necessary wss7 to make
public vacation of the office. lie then
went on TO say that this subject then
being rejected from further consideration,
I understand that there is no mstter let
but for the execution, by this Commis-
sion, ofthe duty accorded to i. by the act
Of Congress under which il Is organized.
to Determine out of the material OF these
three certificates what and how many
votes are 10 be counted tor the State OF
Florida.


Mr.. Evarts said the fret certificate in-
cludes, with every degree OF certainty
snd assurance, the votes OF the
State of FIorids ana went on to argue
against The second and third certificates
Whist he SAID, are the prodigious claims
here, that the Florida State court states
that the complete vote is 20 be retrieved
and reversed. and thst when ajsdge Of .