Gambar halaman
PDF
ePub

army and to exercise his functions, under it, after Congress met and after he had such option or election. Because of this important difference between the two cases, the seat of Gen. Blair was declared vacant, while that of Gen. Schenck was declared not vacant. So far as Gen. Schenck's case was concerned the question presented had been previously decided by the House, it having been held that a person may continue to exercise the functions of an office under the United States, after he is elected a member of Congress, and after the constitutional term of Congress commences, and prior to his taking his seat. (Hammond vs. Herreck, Cl. & H., 28. Case of Elias Earle, Ibid, 314.) But Gen. Blair's case presented a new question. An able and interesting report upon these two cases was made from the committee of elections by its chairman, the Hon. Henry L. Dawes of Mass. (Report No. 110, 1st. Sess. thirty-eighth Congress.) From this report, which contains an elaborate discussion of the whole subject, it is deemed proper here to quote as follows:

"The authorities are equally clear that the mere appointment or election to an office, the duties of which are incompatible with those of one already held, will not vacate such office. This is true even in England, where the appointment to office cannot always be avoided, and where once assumed it cannot, as we have seen, be always voluntarily resigned by the incumbent. [Willcock on Mun. Corp., 243, 248.] And in this country, where the acceptance of office is purely voluntary, and its resignation equally so, the reason of the thing as well as authority clearly leads to the same conclusion. The incum

bent is free to choose in which of the two offices he will serve. He cannot be compelled to serve in the one or forced to vacate the other, except in some manner provided in its tenure. The mere appointment or election to one office, unaccompanied with consent or acceptance, cannot force a man out of an office he already holds. Anciently it was tried in England. A man who was town clerk was elected alderman without his consent, in order to turn him out of his former office, they being incompatible, and thereupon he prayed a writ of restitution to the office of town clerk, which was granted. (Dyer 332, 6, in the notes.) So that consent and acceptance create the vacancy. And Willcock, in his Treatise upon Municipal Corporations, before cited, states that the election of an officer to an incompatible office does not vacate the former before acceptance by the officer, [p. 243.] In this country, Angel and Ames on Corporations (Sec. 434,) adopt this same language, and incorporate it into the text of their treatise. In Whitney vs. Canique, before cited, [2 Hill, 93,] the same doctrine is clearly stated in the following words: "The appointment of a person to a second office incompatible with the first is not absolutely void, but on his subsequently accepting the appointment and qualifying, the first office is ipso facto vacated." And Mr. Cushing, in his Law and Practice of Legislative Assemblies, [Sec. 479,] lays down the same rule, in stating a case which is the converse of the one involved in this reference. "It "It may be considered as a rule founded in the reason of the thing, and corresponding with the practice, as far as it is known, of all our legisla

He says:

says:

tive assemblies, that in order to vacate the seat of a member by the acceptance of the disqualifying or incompatible office, the election or appointment thereto alone is not sufficient, but the member must either have signified his acceptance of the office in a formal manner, or have done what is incumbent on him to qualify him to discharge its duties, or have actually entered upon its discharge."

"The common law has been shown to be clear that the election alone to an incompatible office will not vacate one already held. The language of the Constitution is, that "no person holding any office under the United States, shall be a member of either House during his continuance in office." The words are, "shall be a member," not "shall be elected." No one can be made a "member" against his will. He may be elected without his consent or knowledge, for he may be in a foreign land; but to "become a member" he must not only be elected, but he must take the oath of office. The Constitution says: "Each house shall be the judge of the elections, returns, and qualifications of its own members;" that is, of those who have qualified and taken seats. Again: "A majority of each shall constitute a quorum, but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members." But the attendance of a representative elect was never yet compelled. And, again : "Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." The committee are not aware of any attempt to punish a representative elect, and of but

one instance of an attempt to expel one. A resolution was adopted by the last House, under the previous question, to expel a person who was a representative elect, but had never signified his acceptance of the office, or qualified, or even appeared in Washington for the purpose of taking his seat. But when the Constitution uses the word "representative," it is in this connexion: "The times, places, and manner of holding elections of Senators and Representatives, shall be," &c. "No person shall be a Representative who shall not have attained to the age of twenty-five years." In the clause now under consideration, the language is: "No person holding any office under the United States shall be a member of either House during his continuance in office." No one doubts that the object of the constitutional inhibition was to guard the House against Executive influence. This object is attained, so far as it can be by this provision, if the inhibition attaches the moment the member enters upon the discharge of his duties as such, and nothing is gained by an earlier application of it.

The committee are, therefore, of opinion that the reasons in which this constitutional provision originated, as well as its express language and the practice of the House under it, are in harmony with the rule of law which existed before the formation of the Constitution, that the acceptance and entering upon the discharge of the duties of an office, which, from the nature of its duties, or from express legal or constitutional prohibition, is incompatible with another previously held, vacated the former office from the time of such acceptance and entering upon the duties assigned to the latter office.

And, consequently, when a person elected to Congress accepts that office, or qualifies and enters upon the discharge of its duties, he vacates or forfeits any office he may then hold under the United States. And when any 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 the duties of "any office under the United States," he, ipso facto, vacates or forfeits his seat as a member of Congress.

Mr.

But this record raises another question which, so far as the committee can learn, has not before arisen, and which it becomes necessary to examine. Blair was appointed a Brigadier General, August 7, 1862, and a Major General, November 29, 1862, the duties of which latter office he discharged till January 1, 1864, when he tendered his resignation, which was accepted January 12, 1864. On this latter day he was qualified, and took his seat in the House of Representatives. The first regular session of the thirty-eighth Congress, fixed by law, commenced on the first Monday of December, 1863. It therefore appears that Mr. Blair held and discharged the duties of the office of Major General for more than a month after the commencement of the session fixed by law of the Congress in which, after resigning that office, he subsequently took his seat. Now, if the reasoning already submitted, and the conclusions which the committee have drawn therefrom, be correct, viz., that the acceptance of an office incompatible with one already held must be deemed and treated as a resignation of the former, then does it not follow that the continuance in the

« SebelumnyaLanjutkan »