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State vs. Anderson, (1 Cox, N. 7. 318. State vs. Vail, 53 Mo. 97. People vs. Clute, 50 N. Y.) But in Indiana the doctrine of the English authorities has been followed. (Gulich vs. New, 14 Ind. 93. Carson vs. Phetridge, 15 Ind. 327. Price vs. Baker, 41 Ind. 572,) and see Stewart vs. Hoges in Circuit Court of Stephenson County, Illinois. (3 Chicago Legal News 117.)

§ 234. Thus, it will be seen that the weight of authority in this country is decidedly against the adoption here of the English doctrine. And we think that sound policy, as well as reason and authority, forbids the adoption of that doctrine in this country. It is a fundamental idea with us that the majority shall rule, and that a majority or at least a plurality shall be required to elect a person to office by popu lar vote. An election with us, is the deliberate choice of a majority or plurality of the electors. Any doctrine, which opens the way for minority rule in any case, is anti-Republican and anti-American. The English rule, if adhered to, would in many cases result in compelling very large majorities to submit to very small minorities, as an ineligible person may receive, and in many cases has received, a great majority of the votes. It is enough, in such a case, to hold the election void.

§ 235. This question was elaborately discussed and settled, so far as the Senate of the United States is concerned, in the case of Joseph C. Abbot, of North Carolina. The decision in that case was against the adoption of the English rule in this country, and Abbott, who, notwithstanding he received only a minority of the votes cast, claimed a seat, upon the ground that he was the only eligible person voted for, was declared not elected. And it was distinctly asser

ted, in the report of the committee, that the fact that the voters have notice of the ineligibility of the candidate at the time they cast their votes for him, makes no difference. The remark of Judge Strong, in Commonwealth vs. Cluley, [supra,] that "the disqualified person is a person still, and every vote thrown for him is formal," is quoted with approbation. The broad doctrine was asserted that in this country an election, by a minority of the persons voting, is not to be tolerated under any circumstances. Mr. Carpenter, from the minority of the committee, submitted an elaborate report maintaining the right of Mr. Abbott to the seat, and the debate was exhaustive, but the Senate sustained the majority of the committee. (Senate Rep. No. 58, 42d Congress, Second Session.)

§ 236. If the official term of a public officer is limited to a given number of years, of course, at the end of such term, unless a successor has been chosen and qualified, the office becomes vacant. Hence it is that in most of the States there are constitutional or statutory provisions, to the effect that all public officers shall hold for a given period, and until their successors are duly qualified. Such a clause is to be found in the constitution of Pennsylvania, and under it the Supreme Court of that State held that where the person elected to an office dies before being qualified, the previous incumbent holds over. (Commonwealth vs. Hauley, 9 Pa. St. R. 513.) In such a case the elected creates no vacancy. the office, his death made no fore, though the Governor be authorized to fill all

death of the person Never having occupied change in it. There

vacancies by appointment, he had no power in such a case to appoint.

§ 237 To the same effect is State vs. Jenkins, (43) Mo., 261.) State vs. Robinson, (1 Kansas, 17.) State vs. Benedict, (15 Minn., 199.) It is very clear that no appointment can be made to fill a vacancy until the office has once been full. And, accordingly, it has been held by the Senate of the United States that the words "all vacancies that may happen during the recess of the Senate," mean such vacancies as occur from death, resignation, promotion or removal. (Sargeant Const. Law, 373.) See also the decision of Caldwell, J., in the Circuit Court of the United States, eastern district of Arkansas, April term, 1868, in Schenck vs. Peay. Story on the Constitution, Sec. 1559. Ex parte Dodd., 6 Eng., 152. Per contra, see case of Bell, of N. H., in U. S. Senate, 46th Congress. See Section 534.

§ 238. It is well settled that the acceptance by a member of Congress of a disqualifying office after he has taken his seat, operates as a forfeiture of it, and creates a vacancy in the house to which such member belongs. (Case of Van Ness, Clark and Hall, 122. Cases of Baker and Yell, 1 Bartlett, 92. Byington vs. Vandever, do 395. Stanton vs. Lane, do. 637.)

Whether the incumbent of one office becomes disqualified by accepting another, depends upon the question whether the law forbids the holding of the two offices by the same person, and if not, then upon the further question whether the functions and duties of the two offices are incompatible.

§ 239 If there is a statutory or constitutional provision prohibiting the same person from holding both the offices at the same time, then of course the

question of their incompatibility does not necessarily arise, for in such a case the acceptance of the second is ipso facto, the abandonment and resignation of the first, though the duties of the two may be entirely compatible. But if the statute and constitution are silent upon the subject, then the question whether the two offices can be held at the same time by the same person, depends upon their compatibility.

§ 240. The sixth section of the first article of the constitution of the United States provides that, "no person holding any office under the United States, shall be a member of either House during his continuance in office." Under this provision it has been frequently held, that the acceptance of a commission as an officer of volunteers in the U. S. Army, is the acceptance of an office under the United States, and that the acceptance of such commission by a member of Congress, vacates his seat. [See cases last above cited.] While it is true that the commissions of officers of volunteers are ordinarily issued by the State authorities, it does not follow that they are State officers. They serve the United States, they are paid by the United States, and subject to the orders of the President. They are responsible only to federal authority for the faithful performance of their duties. These tests show them to be officers of the United States.

§ 241. But an important question has arisen, as to whether a member of Congress elect, who has not yet been qualified as such, may be an officer of volunteers. In the case of Robert C. Schenck, of Ohio, this identical question arose in the House of

Representatives of the thirty-eighth Congress. In that case it was held that if a "member of Congress, after he has qualified or entered upon the discharge of his duties as such member, accepts or enters upon the discharge of any office under the United States, he, ipso facto, vacates or forfeits his seat as a member of Congress." Gen. Schenck was elected to the thirty-eighth Congress in October 1862. That Congress did not organize until December 1863. On the 16th of March 1863, he was commissioned a Major General of volunteers, and entered upon the discharge of his duties as such, but resigned prior to the meeting of Congress in December 1863, and did no act as a Representative in Congress and indicated no acceptance of it, until after his resignation as Major General, nor until the meeting of Congress at the time above named.

§ 242. The case of Gen. Blair of Missouri decided at the same time, was precisely similar to that of Gen. Schenck in all respects except one. Gen. Blair continued to exercise. the functions of the office of Major General after Congress met and organized, having resigned his commission January 1, 1864, in order to take his seat in the House. The two cases were alike in this; each held another office under the United States after his election to the thirty-eighth Congress, and after the legal existence or constitutional term of that Congress commenced, to-wit, March 4th, 1863; they were unlike in this; General Schenck resigned his commission in the army, before Congress met, and consequently before he had an opportunity to elect between the two offices, whilst Gen. Blair continued to hold his commission in the

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