IN SENATE.
FRIDAY, January 16 , 1863.On motion by Mr. WILLIAMS the bill [H,R. 26] changing the time of holding Courts in the 3d Judicial Circuit was taken up, and, under a suspension of the rules, read three times and passed yeas 43, nays 0.
CONTESTED ELECTION CASES.
On motion by Mr. WOLFE, it was--
Resolved, That the committee on elections be requested to return to the Senate all matter referred to them in regard to the contested seats of Senators and the rights of Senators to their seats; and that when said matters are to returned the contestants and contestees, and the members whose rights to seats are called in question by the resolution introduced by Mr. Claypool [see page 44 of the BREVIER LEGISLATIVE REPORTS,] have the right to be heard before the Senate, by themselves or by counsel; and, when so argued, the same matter be returned to said committee for its further action.
Mr. SHIELDS reported the papers from the Committee on Elections, the order of business was suspended, and the case of W. H. Dill, Esq., contesting the seat of Mr. Dickinson, the sitting member from the counties of Noble, DeKalb and Steuben, was taken up. It was understood to be a test case, involving a point of law which would govern in several other cases.
On motion, seats were provided for tr parties and their attorneys on the floor of the Senate.
The PRESIDENT called Mr. Shields, the chairman of the committee on Elections, to the Chair.
Hon. JOSEPH E. McDONALD, as the attorney for Mr. Dill, addressed the Senate on the legal points at issue. The records show that Mr. Dickinson, and other members whose seats are contested, act as Enrolling Commissioners. Art. 2. sec. 9, of the Constitution of the State provides that "no person holding a lucrative office or appointment under the United States, or under this State, shall be eligible to seat in the General Assembly, nor shall any person hold more than one lucrative office at the same time, except as in the Constitution expressly provided." He quoted from Chief Justice Marshall, in the case of the United States vs. Morris, to define the meaning of an office, and also from 8th Blackford, page 329, the case of Daley vs. The State, where the Supreme Court of Indiana adopted the definition given by Blackstone, as its decision or definition of the term. Now, was an Enrolling and Drafting Commissioner an office under this definition? There might be some doubt about the Enrolling Commissioner, but could be none as to the Drafting Commissioner. His business was continuous, and the emolument was lucrative. The office was created under the Act of Congress amending the Act of 1795, to give the President power to call out the page: 51[View Page 51] militia for a longer term than 90 days, and to provide rules and regulations therefor. This made the rules and regulations a part and parcel of the law. General order No. 99, issued in August. 1862, prescribed the duties of Enrolling and Draft Commissioners. It was the act of the President by his agent, the Secretary of War, and was clearly a part of the law.-- The case decided by Chief Justice Marshall was pertinent to those under consideration--that of the United States vs. Morris. It was there decided that the Superintendent of Fortifications, although not expressly created by law, was an office, for reasons which he read. As to the definition of "ineligible" in our State Constitution, he read from 15th Indiana Reports, McPetridge vs. Carson, and from Ashing on Parliamentary law, commencing at page 31. The case quoted (McF. vs C.) he contended applied to the case under consideration. In the case of Mr. Browne, of Randolph, Mr. McDonald said that he (Browne) was elected at a special election, to fill a vacancy caused by the acceptance of a military appointment by General Stone. The law provides for the election of Senators biennially. His point was that under the law, the result of a special election could only hold until the time fixed by law for holding the election. It was also alleged by the contestant that Mr., Browne, held by appointment the office of Circuit Judge for one day He was unable to see that this was a disqualification, as the office was at the same time filled by another.
Mr. BROWNE, of Randolph, questioned the similarity of the cases quoted to those under consideration. On the point that persons ineligible at the time of election, but eligible at the period they would be required to act in the office to which they may be elected, he cited the cases of John Randolph, of Virginia, and Henry Clay, of Kentucky, and the more recent case of John Young Brown, of Kentucky. The object of the Constitutional provision requiring one half of the Senators to fee elected biennially, was to secure the coming in of one hall of the Senate every two years, but such provision could not be construed as prohibiting elections at other times than once in every two years. Were such the case, then there would have to be in his case two elections to fill one vacancy, created by General Stone's disqualification. He claimed that one election was sufficient, and that the person so elected was entitled to serve out the balance of the unexpired time of his predecessor. The time at which the question of eligibility of a Senator commenced was when he presented himself to take his seat, and not the time of his election. The Constitution provided that no person holding a lucrative office shall be eligible to a seat in the General Assembly, while in some other cases it was provided that no one should be eligible to an election to a particular office.-- If an office be accepted by any one elected Senator after the election, the duties of which expire before he takes his seat as Senator, he is not disqualified from hold- that seat. He contended that Enrolling and Drafting Commissioners were not United States officers, but, if officers at all, were officers of the State militia, as the manner of filling the President's quota of the militia of the States was left to the Governors thereof, and that no soldier or officer was in the United States service until he had been mustered into the service. This clearly showed the State's control up to the time the volunteer entered the army of the United States by the act of mustering. The Commissioners had received no commissions from the United States, and had discharged no duties connected with the army of the United States that did not end prior to the turning over of the drafted militia to the United States, The Constitution provided that no office of the militia should be considered lucrative to which was fixed no annual salary, and there being no annual salary paid to the Commissioners referred to, no disqualification could follow in accepting the position that would prevent Senators from holding their seats on that floor.
AFTERNOON SESSION.
Mr. RAY said that Enrolling Commissioners were not officers within the meaning of the Constitution, because the militia of the State being under State authority, the agents selected by the Governor to enroll the same had but to perform a specific temporary duty, and when that service was performed the functions of the agency ceased. Such agencies do not necessarily become offices. In a late case the Supreme Court had decided that where a Senator had served as a member of the Military Auditing Committee, raised under an act defining specific duties and fixing the compensation of its members, he had not accepted an office, but a special appointment to perform a certain service. The Governor of Indiana was almost daily appointing agencies to discharge certain duties which he is required to perform, such as an agent to purchase arms, and agents to go to the army to look after the sick and wounded, bring back soldiers' money, &c. No law existed creating such agencies, or the agencies termed Enrolling Commissioners, and in no case could either be considered an office. But if the latter was an office it was a State and not a Federal office. In the case of Kerr vs. Jones, the Supreme Court lately held that if Col. Harrison, of the 70th Regiment, held a commission in the Federal army he was holding two offices, and could not retain that of Reporter page: 52[View Page 52] of the Supreme Court. But if he had been a Colonel of the drafted militia he would not have been disqualified from still holding the office of Reporter. The call for that militia was but for nine months, and no annual salary could be affixed. He contended that the President had made the call not directly on the militia but upon the State Executive. Congress had the right to pass a law directly calling out the militia, bat it had not done so. The President had no power to control the State militia until it was in the active service of the United States. The active service did not commence before the muster into the service of the militiamen. The duties of Enrolling Commissioners were to enroll the able-bodied militia of the counties. They never were appointed Drafting Commissioners, but executed the duties of drawing by lot from the enrolled militia, under orders from the Adjutant General of the State. When this was done the names were reported to the sheriff of the counties, who called out the drafted men. Judge Story, in his commentaries says, that the President of the United States is not Commander-in-Chief of the militia until they are called into active service. Until that is done, they are under the control of the Executive of the several States. If an office, it was a State office. It was not a civil, but a military office of the State, and excepted by the Constitution as a disqualifying office. The usage of Parliament was cited to show that the statesmen in England, as well as in this country, held that ineligibility at the period of election did not have force if the party was eligible at the period of taking the seat. The weight of authority was all in favor of this view. He asked when the prohibition applied to Mr. Dickinson? Not when he was elected in 1860, for he was eligible then and had served two sessions since, nor during the vacation, because he had held no office that did not expire with the expiration of its temporary duties. It could not be now, for the Constitution said no one was eligible to a seat who "holds" a lucrative office, and he held no such office then. The Enrollment was made in August and the draft concluded in October. Administrative and judicial offices were continuous, legislative were periodic. A holder of the former class could not hold two offices at the same time because of their incompatibility, but the latter class could divest themselves of the one at their pleasure and hold the other without begetting any disqualification, for when the incompatibility was removed the party could assume the other office. Many years ago, in 1826, a resolution was introduced in the Legislature declaring that Governor Ray had vacated the office of Governor by visiting a tribe of Indiana and treating with them under authority from the General Government, but it was voted down. The case of Leroy Woods in 1857 was different. He accepted a lucrative office created while he was a member of the Senate, and for that reason it was decided that he vacated his seat thereby. It was the rule of parliamentary law, as expounded by Cushing, that when it was provided that a person holding a lucrative office was not eligible to election to an office the ineligibility took effect at the time of the election, but where it was provided that such person was ineligible to a seat in the General Assembly, the disqualification-must exist at the time of taking his seat, and that the office to which exception is taken must be held at the time of taking the seat. He wished the Senate to bear in mind that the case from Chief Justice? Marshall, quoted by Mr. McDonald, was not in point. The Superintendent of Fortifications, in that ease, was an office created by law of Congress, and not a mere appointment growing out of the temporary exigencies of the War Department.
Mr. MELLETT contended that, under the Constitution of the United States, the President had no power to call out the militia of the United States, but the militia of the several States and this must be done through the State Executive, by the President making his requisition for the State's quota. When turned over by the State, they became the active militia of which the President was Commander-in-Chief. In the first stages of their organization, and before their muster into the United States service, they were the militia of the State. Hence it followed that the President could not commission a citizen of Indiana to enroll the militia therein. That power belonged solely to the Governor. There was an express reservation in the Constitution that the Governors of States should organize the militia of their States and commission the officers thereof. The militia was not the people but a class of inhabitants within certain ages. To ascertain who these were, an enrollment was necessary, and the persons appointed to do this were not officers, under the Constitution,or any State law, but simply the agents of the State Executive, commissioned by him for a specific purpose, and to discharge a temporary duty. Were Congress to attempt to take from the State the right to do this, it would be a palpable violation of Constitution. He read from the Constitution ot the United States and from Story, to show that the militia was under the exclusive control of the State authorities, and was to be organized, officered and trained under the State laws, and was no part ot the Federal power until after it was so organized. The appointments made for the purpose of organizing the militia, were special appointments for a special duty. page: 53[View Page 53] were from the State and not from the President, and its officers were State officers, They were merely to enroll the militia, and acted under the orders of the State officers only. When the Governor made these appointments, he was not acting as a United States officer, but as the Executive of the State. If they were the creatures of the President, then they held no office, because it was a nullity to exercise such power in violation of the Constitution. There could be no disqualification, and in his county no one had thought of raising the question as to his having lost his seat in the Senate by taking the appointment of enrolling commissioner.
LEGISLATIVE EXPENSES.
Mr. WILLIAMS called up the message of the House, returning the bill [S. 1] appropriating $25,000 for the expenses of the General Assembly, with a House amendment appropriating $75.000.
The amendment was concurred in.
On motion by Mr. BROWNE, of Randolph, it was--
Resolved, That when the Senate adjourn it be until Monday at 2 p.m.
