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discharge of the duties of the former office, after the time at which the law requires the entering upon and discharge of the incompatible duties of the latter, must be deemed and treated as a declination of this office? If two offices are tendered at the same time to the same person, and he is at liberty to choose between the two, but either the nature of the offices, or the requirements of the law or Constitution, forbid the acceptance of both, no one will doubt but that, after an election between them is made and the duties of one have been entered upon, it is too late then to take the other. As both cannot be taken, the one is declined in the acceptance of the other. Does the fact that these two offices are tendered at the same time, make any difference in the principle? A man in the discharge of the duties of one office is tendered another, whose duties he is required to enter upon at a certain time, but the functions of both he cannot perform. When the time arrives at which the duties of the latter office commence, he is at liberty to choose. If he takes the latter, the functions of the former, ipso facto, cease as the result of his choice. If he determines to continue to hold the former, does he not of necessity decline the latter, as a like result of that choice? When he accepts one office, the law interprets the act as a surrender of any incompatible office. Shall it not put a like interpretation upon a continuance to discharge the duties of the other? If he may be permitted to keep vacant the one office one month by continuing in the incompatible one during that time, he may two or twelve, or during its whole term. If those acts are not to be taken as an elec

tion on his part, then that election is yet to be made, and what interposes to require it to be made till the day before the term expires, or then? And thus may the people of any district, or any number of districts, be deprived altogether of representation. The committee cannot arrive at any conclusion fraught with such results, but are of opinion that, when the time arrives at which the duties of two incompatible offices are by law to be discharged, a man at liberty to choose between the two, as effectually declines one not entered upon, by continuing in the one already held, as he would vacate the former if he did enter upon the latter.

It therefore follows that Mr. Blair, by voluntarily continuing to hold and discharge the duties of the office of Major General till January, 1864, declined and disqualified himself for the office of representative, the duties of which, by law, commenced on the first Monday of the December preceding."

§ 243. A person who held a federal office after being elected to Congress, but who had ceased to discharge its duties before taking his seat as a member of Congress, is qualified for the latter office without having formally resigned the former.(Case of George Mumford, Cl. & H. 316.) And there can be no doubt, but that the accepting of the office of Representative in Congress and entering upon the discharge of its duties, amounts to a resignation and abandonment of any incompatible office previously held, and hence a formal resignation is not necessary in any such case.

§ 244. As early as the year 1791, it was decided in the lower House of Congress that a member of

that body may tender his resignation to the Governor of his State, and that such Governor may issue a writ for a new election, without any notice to, or action by the House of Representatives. (Case of John F. Mercer, Clark & Hall, 44. Case of Benj. Edwards, Ibid, 92.) The constitution provides that, "when vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies." (Const. Art. 1. Sec. 2.) It is now well settled that the consent of the House is not necessary to the resignation of a member. The right to resign is absolute, and may be exercised even by a member when under charges, or pending a resolution for his expulsion. (Case of Matteson, 38th Congress, and of Whittemore, forty-first Congress.) Such being the law, it is of course not essential to the validity of a resignation that it be addressed to the House, or to its Speaker. If addressed to the Executive of the State, it is sufficient, and creates a vacancy for the filling of which he may issue a writ in accordance with the law of the State. It is however highly proper, that the House be informed of the resignation of one of its members, at the earliest moment practicable, and if the House be in session at the time of such resignation, it is the uniform custom for the member resigning to address a letter to the Speaker, informing him and the House of the fact, that he has sent his resignation to the Executive of

the

State.

245. Where the qualifications required for office "a residence in the State of one year" and that one shall be "a citizen of the United States," if a

are

person elected has resided in the State for the time required, it is not essential that he shall have been a citizen during the whole of that time; it is sufficient if he were naturalized at the time of the election. "It is not the citizen who is required to have resided in that quality for one year next preceeding the election. It is the person, the individual, the man, who is spoken of, and who is to possess the qualifications of residence, age, freedom, &c., at the time he offers to vote, or is to be voted for." (Biddel vs. Richard, Cl. & H., 407.)

§ 246. The constitution, Art. 1, Sec. 3, provides, "no person shall be a senator who shall not have attained the age of thirty years and been nine years a citizen of the United States, and who shall not when elected be an inhabitant of the State for which he shall be chosen." Mr. Shields, of Illinois, who was an alien by birth, and who was elected Senator before he had been a citizen of the United States the term of years required, was held not entitled to a seat under said election. Such an election is entirely void. (Case of James Shields, 1 Bartlett, 606.)

§ 247. A member of the Senate of the United States holding the office under executive appointment, has a right to occupy his seat until the vacancy is filled by the State legislature and the credentials of the person so elected are presented to the Senate. (Case of Winthrop, 1 Bartlett, 607.)

§ 248. Art. 1, Sec. 3, of the constitution provides, that if vacancies happen in the Senate of the United States, "by resignation or otherwise during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next

meeting of the legislature, which shall then fill such vacancies." In the case of Phelps of Vermont, (1 Bartlett, 613,) it was held that an executive appointment made to fill a vacancy expires with the adjournment of the next session of the legislature of the State, after such appointment is made, so that if the legislature meets after such appointment is made and adjourns without electing a Senator, the seat becomes vacant. The appointee of the executive cannot hold over after the failure of the legislature to elect. The language of the constitution "until the next meeting of the legislature" was construed to be equivalent to the words, "until the next session" &c., and the appointee was held entitled to hold the seat until the adjournment of the legislature without action, when his term of service was held to have expired. The case of Senator Phelps, in which these propositions may be said to have been finally settled, was decided by the Senate after full discussion, and against the majority of the judiciary committee and sustaining the views of the minority. This minority report has become the law of the Senate upon the subject. It is an able and exhaustive discussion of the whole subject, and contains a citation of all the precedents. It will be found in 1 Bartlett, pages 613 to 618 inclusive.

§ 249. It will be seen by reference to the constitution of the United States, Art. 1, Secs. 2 and 3, that no person can be a Representative "who shall not, when elected, be an inhabitant of the State in which he shall be chosen," and that no person shall be a Senator who shall not, "when elected, be an inhabitant of that State, for which he shall be

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