presence of the two Houses of Congress, and objections thereto having been made, the said returns, with all accompanying papers, and also the objections thereto, are herewith submitted to the judgment and decision of the Commission, as provided by law. T. W. FERRY, President of the Senate. Mr. Commissioner ABBOTT. papers received be printed. I move, Mr. President, that all the Mr. Commissioner EDMUNDS. I hope that order will not be entered, because I trust we shall be able to use the papers here, as they are evidently tolerably brief, and no doubt both sides understand exactly what are the points. I hope the papers will be here for the mere purpose of examining them; and upon them it is understood a question of law arises. The only doubt about the printing is that it may involve a delay until to-morrow. The PRESIDENT. The question is on the motion to print. Mr. Commissioner ABBOTT. I think they ought to be printed. The PRESIDENT. One of the assistant secretaries has suggested to me that they are pretty long. Mr Commissioner MILLER. If by printing is meant that they shall be printed when it is convenient to send them out, I see no objection; but if it is meant that they shall be sent out at once to be printed, I for one object to it. I think we ought to get along with this case; but if we can have them printed by to-night or to-morrow morning, very well, we going on in the mean time. Mr. Commissioner ABBOTT. I want to get along with this case as fast as anybody else. Nobody is more desirous of getting on fast than I am, and I believe I have given evidence of it generally; but I do not think with the bundle of papers here submitted, which we are to pass on, that we ought to pass on them without seeing them in print. I think it is better to get along rightly than to get along too fast and not get along rightly. Mr. Commissioner EDMUNDS. May I ask if there are not duplicates of each set? I have no doubt there are. Now, Mr. President, if I can have the attention of my brother, Judge Abbott, I understand, as undoubtedly the fact is, that there are duplicates of each of the conflicting certificates; and, that being the case, I have no objection to the order to print, because only one set need go away, reserving the ques tion of what shall be done if the printing is not completed in time. The PRESIDENT. The question is on the motion to print. The motion was agreed to. Mr. Commissioner EDMUNDS. Now, Mr. President, I ask that the papers be read, that we may see what we have before us. The PRESIDENT. Mr. Commissioner Edmunds moves that one set of the papers, as he understands there are two, be read. Mr. Commissioner EDMUNDS. By that I mean one copy of each set. The PRESIDENT. The question is on the motion of Mr. Commissioner Edmunds. The motion was agreed to. The PRESIDENT. The Secretary will read the papers. The Secretary read the various certificates and objections. The PRESIDENT. Two objectors to certificate No. 1 are entitled to be heard. Who represent the objectors? Mr. Senator KELLY. Mr. President and gentlemen of the Commission, I will open the case on the part of the objectors to the first cer tificate. I should like, however, a few minutes. Mr. Commissioner EDMUNDS. What other objector appears to certificate No. 1? Mr. Senator KELLY. Mr. Jenks, of the House of Representatives. The PRESIDENT. Who appear for the objectors to certificate No. 2? Mr. Senator SARGENT. Senator Mitchell of Oregon, and Mr. Lawrence of Ohio, of the House of Representatives. Mr. Representative JENKS. Mr. President and gentlemen, before proceeding with the hearing of the cause, it may be necessary to have certain testimony obtained-the certificate of appointment and the commission of J. W. Watts as postmaster from the Post-Office Department, and also the certificate of appointment and commission of his successor. I applied personally to that Department for those papers, and they declined to give them unless ordered by the Commission. We would ask that an order be made that they may be produced. We also desire a subpoena for two witnesses, Mr. Watts and Senator Mitchell. Senator Mitchell, however, is here, and I suppose will readily respond. Mr. Commissioner HOAR. Mr. Jenks, is it not possible for you to agree with the other side as to the facts? The PRESIDENT. Please wait a moment, Mr. Hoar. Let me suggest that the application had better be made by counsel. Mr. Representative JENKS. I apprehend that it is not important from whom the application comes. Those who make the objection have a right to be heard personally. It is only to save time that we make the application now, so that the witnesses may be here when wanted. Mr. MERRICK. It is done at the suggestion of counsel. The PRESIDENT. The request is before the Commission. What order shall be taken? Mr. Commissioner EDMUNDS. I move that the Commission issue the subpoena as requested and ask for certified copies of the papers wanted, to be furnished by the Post-Office Department. Whether the evidence will be competent is another question. The PRESIDENT. Mr. Commissioner Edmunds moves that the Commission grant subpoenas for the witnesses named and also an order for the papers called for from the Post-Office Department. Mr. Commissioner EDMUNDS. Are the witnesses within reach? Mr. Senator MITCHELL. I will say in. reference to the witnesses Mr. Jenks desires, that they are here in the court-room and will respond at any time whenever the Commission determines that it is proper that they should be called. The PRESIDENT. The question is on the motion of Mr. Commissioner Edmunds. The motion was agreed to. Mr. Senator KELLY. I should like a few minutes' time to gather together some books before proceeding. The PRESIDENT. How much time do you wish? Mr. Senator KELLY. Half an hour, or any time that will suit the Commission. Mr. Commissioner EDMUNDS. Mr. President, I move that the Commission take a recess for half an hour. The motion was agreed to; and (at one o'clock and forty minutes p. m.) the Commission took a recess for half an hour. At two o'clock and ten minutes p. m. the Commission re-assembled, all the members being present. 30 E C The objectors were also present, and the following counsel: Richard T. Merrick, esq., George Hoadly, esq., Ashbel Green, esq., Alexander Porter Morse, esq., J Hon. William M. Evarts, Hon. Stanley Matthews, In opposition to certificate No. 1. In opposition to certificate No. 2. The PRESIDENT. The objectors to certificate No. 1 may proceed under Rule 4, two hours to a side. Mr. Senator MITCHELL. I desire to know whether the objectors on that side both proceed before the objectors on the other side? The PRESIDENT. They both speak first. Counsel alternate, but objectors do not in this proceeding. Mr. Senator KELLY. Mr. President and gentlemen of the Commission, the first objection to certificate No. 1 on which I shall dwell is this: The said J. W. Watts, therein claimed to be one of the said electors, was in the month of February, 1873, appointed a postmaster at La Fayette, in the State of Oregon, and was duly commissioned and qualified as such postmaster, that being an office of trust and profit under the laws of the United States, and continued to be and act as such postmaster from February, 1873, until after the 13th day of November, 1876, and was acting as such postmaster on the 7th day of November, 1876, when presidential electors were appointed by the State of Oregon, and that he, the said John W. Watts, was ineligible to be appointed as one of the said presidential electors. There will be no dispute, I presume, of the facts averred here. It is true beyond doubt that this Mr. Watts was a postmaster, and I do not think it is necessary for us under the circumstances to offer any proof of that, because the view we take of it is that that matter was found by the returning-board, and the returning-board really decided that he had no part in that election. I think, therefore, it will be unnecessary for us to produce proof of that fact. But be that as it may, if it become necessary we shall establish the point. Now what is the result of these facts? I refer to the Constitution of the United States: Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. The question occurs, is this an office of profit or trust? If so, the constitutional inhibition is as clear as the English language can make it. No person shall be appointed an elector who holds an office of trust or profit. On the first point, whether it is an office of trust or profit, I will refer in the first place to the fifteenth volume of California Reports, the case of Searcy vs. Grow, reported on pages 120 and 121. I will read only so far as may be necessary and no further, because I do not wish my time to be consumed in reading unnecessary matter: This case was before us at the last term, and was decided upon a point not now presented. The proceeding is a contest for the office of sheriff of Siskiyou County. Grow, the appellant, was returned as elected to the office at the September election, 1859. The ground of contest is that, at the time of the election, he was postmaster in the town of Yreka, and that the compensation of the office exceeded $500 per aunum. The court below found for the contestant, and Grow appeals. I call attention to this: The court below found for the contestant. That is, for the person next highest. I shall dwell upon that in an after portion of the argument, to show that the person next highest to the ineligible candidate received the office. The constitution, in the twenty-first section of the fourth article, provides: "No person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this State: Provided, That offices in the militia to which there is attached no annual salary, or local officers and postmasters whose compensation does not exceed $500 per annum shall not be deemed lucrative." The act of the legislature prescribing the mode of contesting elections and the grounds of contest makes the fact that the returned candidate was ineligible at the time of the election one of those grounds. Grow was postmaster at the time of the election, but had resigned at the time of his qualification. It is in proof, and so found, that the income of the office of postmaster was some $1,400, but that the expenses of assistant, rent, &c., were some $1,000 per annum, so that the net sum received or enjoyed by Grow was less than $500. The counsel for the appellant contends that the true meaning of the constitution is that the person holding the Federal office described in the twenty-first section is forbidden to take a civil State office while so holding the other; but that he is capable of receiving votes cast for him, so as to give him a right to take the State office upon or after resigning the Federal office. But we think the plain meaning of the words quoted is the opposite of this construction. The language is not that the Federal officer shall hold a State office while he is such Federal officer, but that he shall not while in such Federal office be eligible to the State office. We understand the word "eligible" to mean capable of being chosen, the subject of selection or choice. The people in this case were clothed with this power of choice; their selection of the candidate gave him all the claim to the office which he has; his title to the office comes from their designation of him as sheriff. But they could not designate or choose a man not eligible; i. e., not capable of being selected. They might select any man they chose, subject only to this exception, that the man they selected was capable of taking what they had the power to give. We do not see how the fact that he became capable of taking office after they had exhausted their power can avail the appellant. If he was not eligible at the time the votes were cast for him, the election failed. We do not see how it can be argued that, by the act of the candidate, the votes which, when cast, were ineffectual, because not given for a qualified candidate, became effectual to elect him to office. Can it be contended that, if Grow had not been a citizen of the county or of the State at the time of the election, or had been an alien at that time, the bare fact that he did so become a citizen at the time he qualified would entitle him to the office? Or suppose a man, when elected, under sentence and conviction for crime-if such a case can be supposed-wonld a pardon before qualification give him a right to hold the office? When the words of the constitution are plain, we cannot go into curious speculation of the policy they were meant to declare. It may, however, have been a part of the policy of the provision quoted to prevent the employment of Federal patronage in a State election. I refer to that case as conclusive if the law stated be sound. And here I may just as well as at any other time call attention to the marked distinction that exists between a person who is ineligible or incapable of being appointed and one who may hold the office. If a person may hold the office he may be elected while he is under disqualifications, and if he becomes qualified at the time of holding, it is sufficient. For instance, let us refer to the provisions of the Constitution of the United States as to the election of Senators and Members of the House of Representatives: No person shall be a Senator who shall not have attained to the age of thirty years. No person shall be a Representative who shall not have attained a certain number of years and have certain other qualifications. "No person shall be a Senator;" that is, while he may be disqualified before, yet if the disqualification is removed when he becomes a Senator or Representative, he can hold the office. For instance, a man is holding the office of governor this day, a State office; he has been elected Senator while so holding the office. It is no bar to him taking his seat on the 4th of March next if on that day he does not hold the office of governor. That, however, is a very different case from this, which strikes at the beginning of the matter; that is, where the prohibition is to the election, or, in this instance, to the appointment. Now, when does the appointment begin? What is the day of appointment? It is contended, or at least was by other gentlemen in Oregon-it was contended by Mr. Watts that he could hold the office of elector if he was eligible at the time the vote was cast; that the appointment was not complete until the certificate was given; and I here say, if it was not complete until the certificate was given, it was never completed at all, because he never got one. But he contends that the appointment was not perfect by the election of the 7th of November, but was perfected when the canvass of votes was made. That is a fallacious position. It cannot be maintained, because the returns of a canvass are merely evidence of appointment; they are not the appointment itself. The Constitution gives the right to Congress to appoint the time of holding the election, and section 131 of the Revised Statutes provides: The electors of President and Vice-President shall be appointed, in each State, on the Tuesday next after the first Monday in November in every fourth year succeeding every election of a President and Vice-President. They must be appointed on that day; if they are not appointed on that day they are not appointed at all. I contend, therefore, that the appointment of Mr. Watts, if it was not made on the 7th day of November, could not be made at any other time by a canvass of the votes. The mere evidence of a fact is not the fact itself. That I am correct in that position I think there can be no doubt. So it was held by the court in California. I refer now to the election in the State of Vermont. Of course I do not know all the facts attending it except those which were current at the time or shortly after the election; but as nearly as I can recollect them they are these: A man by the name of Sollace was a postmaster at the time of the election on the 7th of November; he resigned a few days afterward; he was a candidate for elector. The legislature of Vermont convened, I do not know whether by proclamation, but I think the honorable Senator from Vermont [Mr. Edmunds] stated sometime ago that it was by virtue of some law in that State, without proclamation of the governor. At all events the legislature of that State convened. They took this matter into consideration; they declared virtually, I do not know whether by resolution or otherwise, that Sollace was not appointed on that day, and proceeded by legislative enactment, as prescribed by the Constitution, to fill that vacancy occasioned by a failure to elect. It was under this section of the Revised Statutes, I presume: SEC. 134. Whenever any State has held an election for the purpose of choosing olectors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day, in such a manner as the legislature of such tate may direct. So the State of Vermont in its sovereign capacity declared that a postmaster was an officer holding an office of trust and profit under the United States, and that there was a failure to elect, and they proceeded to provide for the case. So in Rhode Island: Mr. Corliss was a centennial commissioner under the United States. Under the peculiar provisions of many of the New England States the governor has the right to submit questions of law to the courts. The governor of Rhode Island did submit the question to the supreme court of Rhode Island. There was one dissenting voice as to whether the position of centennial commissioner was an office of trust or profit. The majority of the court held that it was, and the unanimous voice of the court was that, if it was an office of trust or profit, the person holding it who had been voted for was not elected, |