APPENDIX TO THE BREVIER LEGISLATIVE REPORTS.
TWELFTH VOLUME.
The Wile and Shoenemann Contested Election Case--Debate in Continuation.
HOUSE OF REPRESENTATIVES.
WEDNESDAY, January 11, 1871.[Morning Session.]
Mr. CAUTHORN, from the Committee on Elections submitted the following:
Mr. Speaker: The Committee to whom was referred the Contested Election case wherein Simon Wile is the contestor and William Shoenemann the contestee, involving the right to a seat on this floor as Representative for the county of Laporte, have had the same under consideration and being fully and sufficiently advised in the premises submit the following report:
The Committee find that at the general election held on the 11th day of October, 1870, the contestor and contestee were the opposing candidates in the county of Laporte for Representatives to the General Assembly from said county; that they were the only candidates for said office and both received legal votes therefor; that on the 11th day of October, 1870, the day said General Election was held, the contestee was holding the office of Postmaster at Michigan City, Indiana, an office created and held under the authority of the United States, that said holding of said office by the contestee was generally known to the legal voters of said county; that the salary or compensation realized by the contestee from said office was fourteen hundred dollars per annum; that the contestee continued to hold said office until the 4th day of January, 1871, when he left home to attend the present session of the General Assembly to take his seat as a member thereof; that said office is now managed by his employees, and that he has received no notification of the appointment or confirmation of a successor.
Upon the above statement of facts, which, are admitted by the parties, the question is presented as to which of the parties, if either, is entitled to the seat on this floor as the Representative from the county of Laporte. It is purely a question of law, and its solution depends upon the proper consideration of section 9 Article 2, of the Constitution of the State of Indiana, which reads as follows:
SEC. 9. No person holding a lucrative office or appointment under the United States, or under this State, shall be eligible to a seat in the General Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constitution expressly permitted: PROVIDED, that officers in the militia, to which there is attached no annual salary, and the office of Deputy Post Master, where the compensation does not exceed ninety dollars per annum, shall not be deemed lucrative: AND, PROVIDED, ALSO, that counties containing less than one thousand polls, may confer the office of Clerk Recorder, and Auditor, or any two of said offices upon the same person.
The Committee are of opinion that by virtue of said provision of the Constitution the contestee was not eligible to a seat in this House as a Representative. It is clear from the text of the Constitution that the framers of that instrument intended to make the holding of certain offices of itself sufficient to render the holder thereof not eligible to a seat in the General Assembly. This is a selfevident proposition and needs no elucidation. There may be offices the holding of which may not bring the incumbent within the constitutional restriction and render him inelligible. But the case in point is not one of them. The office held by the contestee was that of Deputy Postmaster, an office known and recognized by the framers of the Constitution and to which their attention in drafting this section was particularly directed, as in the proviso it is directly alluded to, and Deputy page: 464[View Page 464] Postmasters whose compensation do not exceed ninety dollars per annum are exempted from its operation. But the office admitted to have been held in this case does not come within the exception, as the annual compensation exceeds ninety dollars per annum. There can be no escape therefore, from the positive conclusion that the contestee was not eligible to a seat in this House by virtue of that Constitutional restriction.
We presume (there being no evidence whatever on the point) that the contestee received a majority of the votes cast at said election for the office of Representative as he holds the certificate. Such being the case we would not exclude him from the seat he holds on a mere technicality or informality. But in this case he is disqualified by the Constitution, the paramount law of the State, and to admit him would, in the opinion of the committee be a palpable violation of that instrument which we have sworn to support.
Having thus disposed of one branch of the inquiry presented, it only remains for the committee, in the discharge of its duty, to dispose of the remaining one. And as to this we are of opinion that the contestor was duly elected Representative from the county of Laporte, at the election held on the 11th day of October last. On that day it was competent for the voters of that county to elect a Representative, and the elegible person receiving the highest number of votes would, of course, be elected. And it was not competent for any number of the voters of that county to defeat that right, either by absenting themselves from the polls, casting blank ballots or voting for a person not eligible.
In the case before us the contestor was the only person eligible for said office voted for and consequently elected. It may be indelicate for any person to assume the duties of a Representative office with a majority of the voters of his county arrayed against him, but we are not called upon to decide this.
The view of the case and conclusion reached by the committee may appear to militate against the American doctrine of the right of the majority to rule, and perhaps, to some extent it is the case. But in contemplation of the law, and this is purely a legal question with which we deal, it is in harmony with that principle. The law presumes that every one knows the law, and ignorance thereof cannot be pleaded. In many cases it is a violent presumption and may work hardships. It may be so in this case, yet it is nevertheless the law. And therefore in the eye of the law the voters of Laporte county who cast their ballots for the contestee accomplished indirectly what the voters who cast their ballots for the contestor directly accomplished. They knew in contemplation of law, that the contestee was not eligible, and by voting for him they indirectly accomplished the election of the contestor, as surely as if they had absented themselves from the polls or cast blank ballots.
The committee therefore find that the contestee is not entitled to the seat he now holds in this House, as Representative from the county of Laporte, and that the contestor is entitled to said seat. The committee therefore recommend the adoption of the following resolution:
RESOLVED, That Simon Wile and William Shoenemann, being the only persons voted for at the general election, held on the eleventh day of October, 1870, for the office of Representative, from the county of Laporte, in the General Assembly of the State of Indiana, and William Shoenemann not being eligible for that office at said election, and Simon Wile being the only person voted for who was eligible, that William Shoenemann has no legal right to a seat in the House of Representatives, as the Representative from the county of Laporte, and that Simon Wile was duly elected a Representative from the county aforesaid, in the General Assembly of the State of Indiana, and is hereby admitted to his seat in the House of Representatives, for the said county of Laporte.
[Signed] GEORGE McDOWELL, Chairman, HENRY S. CAUTHORN, FRANK D. CALDWELL, JONATHAN D. COX, HENRY S. BARNABY.
On his motion, and by unanimous consent, this report was referred to the Judiciary Committee.
HOUSE OF REPRESENTATIVES.
WEDNESDAY, February 1, 1871.[Afternoon Session.]
Mr. McDONALD, from a majority of Committee on the Judiciary, returned the above report and submitted the following:
Mr. SPEAKER: The Committee on the Judiciary to whom was referred the matter of contest in the case of Wile against Shoenemann, from the county of Laporte, have had the same under consideration, and have not been able to agree. The undersigned are of the opinion that the resolution as reported to this House by the Committee on Elections should be adopted.
[Signed] ISIAH B. McDONALD, HENRY S. CAUTHORN, WILLIS G. NEFF, R. P. DAVIDSON.
Mr. WILSON, intimating that a majority report would be ready to-morrow, the matter was passed over informally.
HOUSE OF REPRESENTATIVES.
FRIDAY, February 3, 1871.[IN CONTINUATION FROM PAGE 214 NEAR THE MIDDLE OF SECOND COLUMN.]
Mr. WILSON, from a majority of the Committee on the Judiciary submitted the following:
page: 465[View Page 465]The Committee on Judiciary to whom was referred the report of the Committee on Elections, in the case of Wile vs. Shoenemann--wherein said Committee recommended the adoption of a resolution declaring the sitting member from the county of Laporte not entitled to his seat by reason of ineligibility, in this being at the time of his election, Deputy Postmaster at Michigan City,--herewith submit the following report, dissenting from the opinion expressed by said Committee. The case briefly stated is as follows:--
On the 11th day of October, 1870, Shoenemann the contestee, was elected the Representative for Laporte county to the General Assembly, by a majority of 275 votes over the contestor, his only competitor. At the time of his election he held the appointment of Deputy Postmaster at Michigan City in said county, and continued to hold said oppointment until Nov. 17th, 1870, when he resigned his office as such postmaster, addressing his resignation to the Postmaster General, whom he then thought the proper person and officer to receive it. Afterwards ascertaining that such resignation should have been directed to the President, he accordingly in due form forwarded to the President his resignation as postmaster in these words:
U. S. Grant, President of the United States:
SIR--At the last State election, I was elected Representative to the State Legislature for the county of Laporte, by the Republican party. It now becomes necessary for me to resign the office as Postmaster at Michigan City. I would ask most respectfully to be relieved of duty of said office as soon as possible, and herewith resign the office as Postmaster of said city. Thanking you very kindly for the honor and trust of which I have been bestowed with, I am, respectfully your obedient servant.
WM. SHOENEMANN, P. M.
Michigan City, Dec. 10,'70.
On the 5th day of January, A. D., 1871, he presents his certificate of election, at the Bar of this House, and was duly sworn in as a member of this General Assembly. The report of the Committee on Elections declares the contestee ineligible by reason of holding an office at the time of his election to this House. We are unable to agree with the conclusion of the Committee, for the following reasons:
- It is against established precedent and the lex et consuetude of parliament.
- It is against the object, spirit, and meaning of our constituticu.
- It is not sustained by law.
In support of the first proposition, reference will be had to the law, and custom as well as jurisdiction of parliament, for--
The Legislative Assemblies of the United States, having all been constructed upon the model of the two Houses of the British Parliament; the forms of proceeding which prevail in the latter have been adopted by them as their common Parliamentary Law; and upon that have been engrafted the peculiar usages which distinguish the various systems of parliamentary practice in this country; precisely, as, upon the basis of the common law of England, the different legal systems of the several States have been established. [Cushing's Law and Practice of Legislative Assemblies, sec. 697.]
The Constitution of the United States and of almost all the States, contain provisions relating to the incidental powers of the legislative assemblies, and they do not in any degree change, either by enlarging or diminishing, the powers of jurisdiction recognized by the ordinary parliamentary law.
When therefore, the framers of our constitution engrafted therein the 10th sec. in article 4, providing that "Each House when assembled shall choose its own officers, judge the election, qualifications and returns of its own members, and sit upon its own adjournment;" as well as that other section, 14, which provides that, "Either House may punish its own members for disorderly behavior, and may with the concurrence of two thirds, expel a member;" and that other section, 16, "Each House shall have all powers necessary for a branch of the legislative department of a free and independent State;" they were simply following the precepts which had withstood the inovations of centuries "as a part of the unwritten law, and as such, only to be collected out of the rolls of parliament and other records, and by precedents and continued experience." [Coke Inst.]
They found that these privileges, and this power and authority in the making, confining, enlarging, restraining, abrogating, repealing, revising and expounding of laws so transcendent and absolute, could nowhere better be preserved than in our Constitution--thus recognizing the doctrine of the wisest statesmen, and greatest lawyers, through a long succession, from Sir Edward Coke, and Mr. Seldon, to the Earl of Hardwicke, Lord Kenyon, Erskine, Mansfield, even to the present Lord Chancellor of England, "that matters moved in Parliament shall be managed, adjudged, and discussed by the course of Parliament, and in no sort by the law civil, or by the common law of the land, used in the other lower courts," [Coke Inst. Lex. Parl. 83.] For, as Sir Edward Coke says, "Every court of justice hath laws and customs for its direction, some by the common law, some by the civil and cannon law, so the high court of parliament, suis propriis legibus et conseutudinibus consistit, and it is only by the Lex et consuetude Parliamenti that all weighty matters concerning the Peers of the Realm, or Commons in Parliament assembled, ought to be discussed, adjudged and determined." [Coke Inst.]
This will not be denied. In order therefore to get a complete and intelligible view of the law and practice of our Legislative Assemblies, it will be necessary to understand fully and distinctly the law and practice of the British Parliament, [Gushing 698,] for what is given to the Legislature in our Constitution is simply an inheritance from the Parliament page: 466[View Page 466] and statute law of England, which for nearly three centuries has been claimed, and is recognized as the acknowledged franchise of the Lords and Commons, that they are the judges of the election and qualification of their own members, to be determined only by the law of Parliament [May 40, 42] and it will be seen that our Constitution, in its grant of jurisdiction regarding elections, is identical with that exercised by the Commons, which have no control, and never claimed to have, over the eligibility of candidates, except in the administration of the laws which define their qualifications; [May 42.]
We are compelled, therefore, in our examination of this case to consider it with reference to its identity and application to like cases determined in parliament, under laws though more certain and defined, yet not so limited, as the language of our Constitution, would seem in such cases in the use of a single word, to limit in its sense and meaning. "It is not the word of the law, says the ancient Plowden, but the internal sense of it, that makes the law; the letter of the law is the body, the sense and reason of the law is the soul."--" Every statute ought to be expounded not according to the letter but according to the meaning." [Dwarris 272.]
We ask then for a determination of this case upon the recognized and accepted interpretation of the law established for centuries in the British Parliament, and as the House of Commons is in such cases, a court of jurisdiction [Dwarris 299,] so can it be said that this House has special and exclusive jurisdiction under our Constitution for the same purpose; and we submit that in the exercise of this high discretionary power, great deference is certainly due to a legislative exposition of a constitutional provision, and especially when it is made almost contemperaneously with such provisions, and might be supposed to result from the same views of policy, and modes of reasoning which prevailed among the framers of the instrument expounded; [2 Wend 266 274.]
Recognizing this high power, and the precedents established thereupon, we claim that this case should be determined by these precedents, based upon the statute law from which our own system of laws is drawn, and the spirit of which so fitly dwells in the great charter of our liberties and declared rights, for when determined, your proceedings cannot be revised nor your judgment suspended by any other court or tribunal. [C. L. & P. 649.]
We ask a comparison between the laws upon which a succession of precedents has been drawn, and the language of our Constitution upon which the resolution of the committee is moved.
By the 7th act George 2 c I6, s 4, no judge of the court of session, or judiciary, or baron of the court of exchequer in Scotland, shall be capable of being elected, or of sitting or voting.
By the 22d act George 3 c 45, no person who shall hold, or enjoy any contract entered into for the public service shall be capable of being elected, or of sitting, or voting as a member of the House of Commons.
Nor any person holding any office or place of profit under the lord lieutenant, or lord justice, created since the 33d George 3d, shall be capable of being elected, or chosen.
Persons having or holding new offices under the Crown created since 1705, are incapable of being elected or of siting, and voting as members. [6 Anne c 7, 525. See 1 Luder 455, Whitley Harvey's case 1839, DeLolme English Constitution 622.]
Nor any person having a pension from the Crown, shall be capable of being elected, or of sitting or voting as a member of the House of Commons.
Commissioners of the revenue in Ireland, and their deputies or clerks, (and many other classified officers) are all disqualified not only from being elected, but also from setting, and voting as members of Parliament, [22 George 3 c 45.]
Any person who shall directly, or indirectly * * * execute hold or enjoy * * any contract, agreement, or commission of his majesty's treasury, navy, &c., shall be incapable of being elected, or of sitting, or voting as a member of the House of Commons; and any person being a member who shall enter into such contract, or having entered into it shall continue to hold it, his seat shall be void. [Same.]
Now, what is the language of our Constitution. Section nine of article 2, reads as follows:
No person holding a lucrative office or appointment under the United States, or under this State, shall be eligible to a seat in the General Assembly.
It must indeed be a mind of extraordinary power of analysis that can detect a distinction between this section, and that law which has been so often interpreted in parliament, to which reference has just been made. If indeed there is a distinction it is without a difference, except in this, that the law of England goes farther, so far, as to disqualify in certain cases, persons not only from sitting, but from being elected, and being elected, voting.
The law of Parliament or statute law of England, as well as our own laws of Congress, recognize two grades of members: 1st, those qualified to be elected, and to sit and vote; and, 2d, those qualified to be elected and sit without voting. The same qualifications are not required, nor can they be possessed in one sense, for both purposes. This distinction or grade is recognized in our own laws. By act of March 1817, delegates to Congress are entitled to a seat with the right of debating but not of voting. They may make motions, except a motion to reconsider, which being dependent upon a right to vote, cannot be exercised by a delegate. [Wilson's Digest Parl. Law p. 188.]
No section in our Constitution declares a disqualification "where these qualifications are of the same nature as those required of an elector," except Section 17, Art. 7. Under this section he is not eligible to an election to any page: 467[View Page 467] other than a judicial office, during the term for which he was elected thereto. Here the the language is explicit: it declares what constitutes ineligibility which shall disqualify him for an election. Section 9, declares simply, that one holding office shall not be eligible to a seat. In other words, with the exception in said section, he could not while he held one office possess another, and hold both.
It is a principle of law, that where a question arises as to the construction or expounding of a will it is not what the testator meant, as distinguished from what his words express, but simply what is the literal meaning of the words, [Dwarris 561.] Construing then, with parity of reasoning, the words "eligible to a seat" in their grammatical and natural sense, the mind must indeed be dark that refuses to receive their accepted signification as against the words "eligible to an election." In what a labyrinth of nonsense and contradiction would men involve themselves, when, forsaking the rules of evidence, they would draw conclusions from words in contradiction to language, and in defiance of common sense. If ineligibility to a seat means ineligibility to an election, or if the former can relate back to the time when ineligibility existed--at some time past--then we must believe that in the construction of our laws when one thing is said another is meant, and that a man means one thing because he says another.
Under the head "disqualifying officers or employments," in section 78, of "Cushing's Law and Practice of Legislative Assemblies," the principle there laid down is in these words:
Disqualifications of this kind result from the holding of certain offices, or from the exercising of certain employments, commissions and professions, the functions of which are deemed incompatible with the proper discharge of the duties of a member, but of which one may divest himself at pleasure, and which are therefore relative rather than absolute. In general as these disqualifications are not derived from the personal character of the individual, or inflicted by way of punishment, they do not render him ineligible, that is, incapable to be elected, but prevent him from assuming the functions of a member until they are removed. [See also, Panyters Practice at Elections, Douglas 1, 143, Douglas 3, 450,]
But this depends upon the language used in reference to each particular disqualification and the time to which it relates. Thus where it is said that no person holding a particular office, &c., "shall have a seat,"--"shall be a member"--"shall at the same time have aseat"--"shall hold a seat"--"shall be capable of having a seat"--"shall be capable of being a member"--"shall be capable of holding an office"--"shall act as a member," the disqualification relates to the time of assuming the functions of a member. But where the following terms are used "shall be incapable of being elected," the disqualification relates to the time of the election. Section 16, Article7, clearly comes within the purview of the last clause of this section, providing that "no person elected to a judicial office shall be eligible to another," &c.
It needs no reasoning to show upon what grounds this line of precedents touching the qualification of members upon this very same question, has been established by the law of parliament and indeed other tribunals in cases of contested elections from which no deliberative body has as yet deemed a departure wise or justifiable. The same rule has ever obtained in courts, that in construing acts of Parliament, and instruments of writing, the only means is to take the words in their ordinary grammatical sense, according to the natural and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation.
Further the Committee on Elections claim that by reason of holding an office at the time of his election, the contestee is disqualified though he may have relinquished all claims to said office since his election and before taking his seat.
We think otherwise, and we respectfully submit, that, if at the time of the election to the General Assembly, one holds an office, the holding of which is not by the letter of the Constitution, a disqualification for any other office at the time, if he divests himself of that office before taking his seat, he is eligible. To sustain this proposition we cite 2 Hatsell's Precedents, 52; Clerk on Election Committees 1852, 156; Commons Journals 18, Jan. 1717; 20 May, 1715; 1 Luder 72, 445; 38 38 Comm. Jour. 15, 245,414, 689; Clifford's Reports 1796, 141, 221, 261, 342; 1 Peck, 526.
The determinations in Parliament on this question, have been accepted and followed for many years by all Legislative Assemblies, where there was not by special construction, a constitutional provision to the contrary. In support, therefore, of our proposition, we cite a few of the determinations in the House of Commons:
On the 5th of February, 1708, Sir Richard Allen is declared duly elected for Dunwich, on the hearing his petition. On the 7th February, he surrenders an office to the customs for life, to which he had been appointed in May, 1678. On the 8th February this surrender is enrolled, and on the 9th of February he desires the sense of the House before he takes his seat, and upon reading the letters patent and surrender, he is admitted to take his seat.
On the 10th day of April 1728, it is resolved by the Committee of Elections, that Mr. Ongley, having an office in the customs at the time of his election, is capable of claiming to sit. 2 Hats., Prec. 38. The idea says Hatsel, of excluding from the House of Commons, one who holds an office in the Government of the country, and who from that situation is the best qualified to give the necessary information relative to the Department which he belongs to, is too absurd to be seriously maintained for a moment.--Same, 47.
page: 468[View Page 468]Another case cited in Hatsel is that of Lord Althrope. He was chosen a member of the House of Commons, April 4th, 1782, for Northampton. On Wednesday the 3rd of April at a meeting held to consider of a proper person to represent the county of Surrey, Lord Althrope was nominated and unanimously approved of, and at the election on Wednesday the 10th of April, he was elected Knight of the shire for that county. It was held that Lord Althrope being elected, and returned for Northampton, was not eligible for Surrey, without first vacating his seat, and on the 8th of April he accordingly vacated his seat for Northampton.--Same.
With these determinations, selected from many others, we turn to those of more recent decision in Congress. And as they bear so directly upon the case at bar, we ask that indulgence commensurate with the importance of this case. In the case of Hammond vs. Herrick, determined in the 15th Congress 1st session 1817, the principle is laid down that though the sitting member may have held office at the time of his election to the House, by resigning that office before the session, he is eligible to a seat in the body.
The case at bar is directly in point. Shoenemann, the contestee, was at the time of his election, October 11th, Deputy Postmaster at Michigan City. On the 17th day of November, seven weeks before he was sworn in as a member of this House, he resigned his office as Deputy Postmaster, and when he accepted by his oath of office the duties and responsibilities of a member on this floor, that moment he divested himself of any office or appointment under any other person or power, or by force of any election. Not only because the possesion of one office vacates the other, but for the reason that having in the only manner prescribed by law, vacated one office by resignation, he was free to exercise the trust the great majority of Laporte county imposed upon him.
The committee in the case of Hammond vs. Herrick, were sustained in this opinion, and as the arguments in that case are presented so ably, concisely, and intelligibly, we refer to those opinions, and wish to make them a part of this report, for we have no other conclusion than as given there. Nor can we present to this House any better law, which freed from party bias goes to the fullest extent in declaring the object, spirit, and meaning of our Federal and State Constitution. In this case
The sitting member was elected to Congress in October 1816, being then in commission as District Attorney of the United States. On the 29th of November 1817, he resigned his office as District Attorney and on the first day of December following took his seat in Congress. It was decided that he was not rendered incapable of being a member of the House by reason of his having held the said office after the 4th of March, and until the 29th of November 1817.
The inquiry here presents itself as in the case now before the House, as to the time when the rights of membership commence. The 6th section of the first Article in the Federal Constitution provides, that--
No person holding an office under the United States shall be a member of either House during his continuance in office.
The incompatibility is not limited to exercising an office and at the same time being a member of either House of Congress, but is equally extended to the case of holding, that is, having, keeping, possessing or retaining an office under such circumstances. The only difference between this section in the Federal Constitution, and section 9 of our Constitution, is the phraseology, for to become a member admits of eligibility to a seat.
As to the time when this membership commences or when one may be considered eligible to a seat; it has often been decided by the Committee of Elections of the House of Commons that a person holding an office incompatible with membership, is nevertheless capable of prosecuting his claim to a seat. Persons elected to the House of Commons become at one time members for certain purposes, and at another time for other purposes, and this committee in Congress say, that--
After examination of all Parliamentary Registers, Histories and Journals within our reach, we have found no case where a person elected to the House of Commons was brought in on a call of the House, before he had voluntarily appeared, qualified and taken his seat. The act of becoming in reality a member of the House depends wholly upon the will of the person elected, and returned. Election does not of itself constitute membership. * * * Neither does a return necessarily confer membership. These acts are nothing more than the designation of the individual who when called upon in the manner prescribed by law, shall be authorized to claim title to a seat.
What then is necessary to constitute a person a member of Congress? There are yet two other acts to be performed, one by the Goverment, another by the inchoate member, or the Representative elect, before his right to his seat is consummated, and before he is, agreeably to the language, and spirit of the Constitution, a member. He must appear in this place and take the oath as prescribed to support the Constitution. This act of his, in consenting to take the oath is the only legal evidence known to our constitution and laws, of his having accepted the office, and his having taken the oath is the only legal evidence that he is in law and in fact a member. No rights or privileges of a member attach to a Representative elect, before he takes the oath of office.
In nearly every Congress since the commencement of the goverment, postmasters have been returned as members, and such members have almost uniformly held their offices after the 4th of March succeeding their election.
page: 469[View Page 469]In the case of Elias Earle, of South Carolina, who was Postmaster at Centerville, in that State. On the 10th of February 1817, the Governor executed a certificate of his election and he continued to execute the duties of his office until the 12th of June 1817, in the meantime, but after his election, having forwarded his resignation as such Postmaster to the Postmaster General. It was held in this case that--
Continuing to execute the duties of an office under The United States after one is elected to Congress, but before he takes his seat, is not a disqualification, such office being resigned prior to the taking of his seat.
And in the case of George Mumford of North Carolina, a Collector of Revenue, it was held that--
The formal resignation of an officer held by a member elect, is not necessary, if the duties of it have so far ceased as to have operated a virtual abolition of the office.
What was said in the determination of this case may be said in the case at bar. They are parallel. The question of sovereignty does not exist, nor cannot be maintained in this case. But whether it did or not, underlying the whole case is a principle upon which the decision of this body must be made and from which they cannot shrink by technical evasive rules, or questions of doubt.
Shoenemann, the contestee, resigned as Deputy Postmaster in November, then again in December. The contestor, with his counsel,and the contestee, came before the Judiciary Committee after the report of the Committee on Elections had been referred to us. The chairman of the committee gave them a hearing. We all heard the plea in behalf of the contestor. We heard Shoenemann say that he had resigned, that he had sent his unconditional resignation to Washington in November, and then in December. Not having a copy of that resignation he produced the following letter from Hon. Jasper Packard, representing his District in Congress:
H. R., WASHINGTON, Dec. 19, 1870.
Hon. WM. SHOENEMANN; My Dear Sir--Your resignation has been received at the Department and duly accepted, of which I had notice on Saturday. I shall to-morrow make a recommendation to fill the vacancy.
Hoping you will have a pleasant time this winterat Indianapolis, I am
Yours Very Truly, JASPER PACKARD.
But we fail to find anything about his resignation in the report of the Committee on Elections, though honorable members of that committee acknowledge on this floor that such evidence was adduced.
Then a question arises as to whether Shoenemann's resignation was accepted. The committee deemed this unnecessary, but desiring to satisfy all minds, a telegram was sent asking when Shoenemann's resignation was accepted. The following answer came:
WASHINGTON, Jan. 18, 1871.
Hon. Wm. Shoenemann, House of Representatives:
Willett's name was sent to the Senate Dec. 20th, vice Shoenemann, resigned, showing acceptance of resignation that date.
JASPER PACKARD,
Still not satisfied, a copy of the resignation must be had, and so agreed by all the parties, the contestor agreeing to furnish it, saying that "he knew better than the contestee," the man who wrote, it "that it was conditional." We waited some time and then he had not sent, nor did he intend to send for it. The contestee was then privately told to send for a copy of his resignation. In answer to his telegram he received the following answer:
WASHINGTON, Jan. 26, 1871.
Hon. Wm. Shoenemann, House of Representatives:
Your resignation is unconditional. Will sendcertified copy by mail.
JASPER PACKARD.
These are the facts. In support of the 3rd reason we assign for dissenting from the conclusion of the Committee on Elections,--sustained by a minority of the Judiciary Committee, namely, that such conclusions are not sustained by law, we make reference to the following authorities and decisions:
In the case of Gilbert vs. Ince, 11 Barbour 94, 95:
A seal is not necessary to the act of resignation the office becomes ipso facto vacant by such resignation. The act of resignation is the act of the Deputy, and when he does the act the office becomes vacant.
When, therefore, the resignation was received by the Sheriff in this case, the defendent then ceased to hold the office of Deputy Sheriff, and his sureties ceased to be responsible for any act of his done thereafter.
In the case of Van Onsdall vs. Hazard, 3 Hill, 247, 248, it was held:
On the mode of resignation it is here said, that it may be either in writing, or by parol, express or even by implication, so that there be an intent to resign on one side, and an acceptance on the other.
When no particular mode of resignation is prescribed by law, and where the appointment is not by deed, it may be by parol; as by the incumbent declaring to the appointing power that he resigns his office, or will continue to serve no longer, and requesting an acceptance of his resignation. Nor need the acceptance be in writing. It is enough that the office be treated as vacant, for instance by appointing a successor.
The leading case of Rex vs. Rippon (1 Lord Raymond 563, Salkend 433 S. C.,) resolves both of these points.
A vacancy may sometimes arise from a mere implied resignation, as by accepting an office incompatible with that which is claimed to be vacant. (The People ex. rel. Whiting vs. Carrique. 2 Hills Rep 97, and cases there cited.)
This is an absolute determination of the original office and leaves no shadow of title to the posses- page: 470[View Page 470]sor--so that neither quo warranto nor a motion is necessary before ony other may be elected. 3 Burr 1616, T. R. 87.
In this case last cited Bullen (Judge) cited Lord Mansfield who had held that if the two offices were incompatible, the acceptance of the latter would imply a surrender of the former.
In Angel & Ames on Corporations, 255 1st ed., it is there laid down that the appointment to one office, is a temporary disqualification which renders the officer ineligible to the other incompatible office, though it is admitted, on the same page that the appointee may accept the new one on abandoning the other.
There is not a doubt that he had a right to elect whether he would hold his seat there, or accept his new appointment. 3 Hills, 97.
In the case of U. S. vs. John C. Wright. 1 McLean, 509 it was held:
A civil officer has a right at any time to resign his office, and after his resignation has been received at the proper department, his surety is not bound for his faithful performance.
The President has no power to refuse a resignation, or require an officer to continue in office.
Judge McLean in discussing this case said:
There can be no doubt that a civil officer has a right to resign his office at pleasure, and it is not in the power of an Executive to compel him to remain in office. It is only necessary that the resignation should be received, to take effect, and this does not depend upon the acceptance or rejection of the resignation by the President.
In conclusion of this report we can but repeat from the argument upon which the case of George Mumford, above referred to was determined in Congress, in his favor, permitting him to hold his seat:
Is it not indecorous, after a man has taken an oath to support the Constitution, and thereby qualified himself and taken his seat as a member, to insist that he does hold an office which is as much as to say that he has violated the Constitution and his oath, without having some evidence, that he has discharged, or attempted to discharge other duties than those of a member?
In this case Shoenemann had abandoned the office long before he took his oath of membership at the bar of this House. He is not responsible nor is he regarded as Postmaster, at home or at Washington--nor has he been since Dec. 20, 1870.
Who has proven that he did not send forward his resignation? We have shown that he did. Suppose indeed his resignation did not get to Washington safely. Will it be claimed for a moment that any power there can take him from the high and important duties assigned to him on this floor by his constituents? Must he still be regarded as the Postmaster, notwithstanding he has told your committee that he holds no office at the time he qualifies as a member? He has done all required of him, and it might be said he has even gone beyond the requirements of the law. But having so promptly presented his resignation, will it be said that the President is not bound to know and provide for the vacancy in an office which has before his face, been made vacant, and which it is his duty to fill?
For the minority of the Judiciary Committee to contend that there was no evidence of the receipt of this resignation, places them, and this House in a very humble attidude indeed, for by so doing they put it completely in the power of the heads of demartments, by refusing to accept; or by omitting to acknowledge the receipt of a resignation, to prevent any one who has been chosen by the people from taking his seat on this floor. This does not conform to the spirit of our republican institutions nor form of Government. Adopt this theory and there will no longer be privileges of Parliament except such as may be dictated and prescribed by a few. In other words, instead of that old saying vox populi, vox dei, we must accept a new version, vox potentati vox populi.
The committee, therefore, are of the opinion that Shoenemann, the sitting member,
holding no office at the time of taking the oath of office as a member of this assembly,
is eligible to his seat and entitled to hold the same.
O. M. WILSON,
JOS.
HENDERSON,
G. W.FRIEDLEY,
R. T. STJOHN,
E. CALKINS, Fulton.
Mr. CAUTHORN. Mr. Speaker: As a member of the Committee on Elections, this case was heard and considered by me, and when that committee submitted its report to the House, the legal question involved was on my motion, referred to the Judiciary Committee for investigation and report. As a member of that committee also, I have had this case under consideration, and have by patient research and inquiry endeavored to discharge my duty, not only to the parties immediately interested, but to the country and the House. I therefore claim attention for a very few moments whilst I present my view of the case.
This case involves directly one clause of the Constitution of the State of Indiana. Such being the fact it commends itself to the careful consideration of us all. For you, Mr. Speaker, and every member of this House, has taken a solemn oath to support and defend that instrument. And if we have any regard for that oath, we must carefully and honestly examine the facts and the reasons upon which we arrive at a conclusion and predicate our action.
For my part I propose to act dispassionately and impartially, without regard to political considerations or personal consequences. I will do what I think right in the premises, come what may as a sequence. Often men are influenced in their actions by extraneous and disturbing influences. But on this occasion, sir, I disclaim such. The path I will tread is not strewed with flowers and leads to no asylum where I will find a welcome, except such page: 471[View Page 471] as arises from the consciousness of having discharged my duty.
I will, moreover, say at the outset that if instating this case I shall make any statement that is not unquestionably warranted by the evidence, I will thank any gentleman on this floor to rise in his place and correct me at the time I make it.
What are the facts in the case? It appears from the admissions of the parties made before the Committee on Elections, that at the last general election held in Laporte county, on the 11th day of October last, the contestor, Simon Wile, and William Shoenemann, the contestee, were candidates, and the only candidates for the office of Representative to this General Assembly for that county. It further appears from said admissions that on said day the said William Shoenemann was holding the office of Deputy Postmaster at Michigan City, Indiana, an office created and held under the authority of the United States, and that the annual compensation thereof was $1,400 per annum. That the said William Shoenemann continued to hold said office until the 3d day of January last, when he left his home to come to this city and take his seat in this Hall as Representative for said county; and that in the meantime said postoffice is being operated in his name by his employes, and that he had no knowledge on the 16th day of January last of the appointment or confirmation of any successor. This, sir, is substantially a brief statement of the case as presented to the Committee on Elections, and was so presented by the mutual agreement and admission of the parties to the contest and their legal advisers. And it was upon this state of case that the Committee on Elections predicated their report which was made to the House, and in which report they submitted a full exposition of the reasons and inducements which led them to the conclusion they ultimately reached and rendered it proper in their opinion to recommend to the House the adoption of two resolutions; one declaring Mr. Shoenemann not entitled to retain his seat, and the other declaring Mr. Wile entitled thereto. The reasons and arguments of the committee are set forth in the report and I will not now notice them in detail.
The committee based their judgment upon a constitutional restriction disqualifying Mr. Shoenemann, and decided the case solely upon a legal proposition. This being true, it seemed right that the report of that committee on said legal question should be referred to the Judiciary Committee for investigation as that committee, as its name implies, is organized specially to deal with such questions. I therefore moved, contrary to the usual practice with reports from standing committees, to refer the report to that comittee.
The Judiciary Committee has carefully investigated this case, not only with reference to the legal question arising upon the admitted facts presented to the Election Committee, but also upon additional evidence submitted to them. This proceeding, to say the least, was irregular. The Judiciary Committee should no more have gone outside the record submitted to them than the Supreme Court in deciding a cause on appeal should receive additional evidence not introduced in the court below. If it became necessary, in the investigation of the case, to rely upon: facts not introduced in evidence before the Election Committee, comity and fair dealing required that the case should have been referred back to the Election Committee for them to hear the additional evidence and consider it with a view of enabling them to change their decision of the case if they should see proper so to do. But I will not complain further of this.
What additional evidence was introduced before the Judiciary Committee? It was the fact that Mr. Shoenemann had tendered his resignation of the postoffice at Michigan City on or about the 14th day of December, and forwarded it to the proper department of the Federal Government at Washington City. But the terms of the said resignation, whether conditional or unconditional; whether to take affect in presenti or in futuro, was not made clear and manifest. But I hold this to be immaterial and as being entitled to no weight in the determination of this case. For it is clear to my mind that this case is decided aliunde.
I hold that this case is controlled and governed exclusively by section nine of article two of the constitution of the State. That section reads as follows: [Mr. C. reads.]
Now in this case it is admitted that Mr. Shoenemann held the office of Deputy Postmaster at Michigan City on the election day, and continuously up to the present time. He is today the Postmaster at that place de facto if not de jure. He is still holding the office. The Constitution of the State disqualifies any one from occupying a seat here who simply holds a Federal office of this kind, whether the holding is de facto or de jure it makes no difference. This being true Mr. Shoenemann is clearly not entitled to represent on this floor, the county of Laporte as Representative. Any other conclusion will defeat the object had in view in placing this restriction in the constitution.
What was the object sought to be accomplished by the framers of the constitution in putting therein this prohibitory clause? It was, sir, to exclude from these halls undue Federal influence. And if Mr. Shoenemann is permitted to retain his seat in this House this provision of the constitution is subverted. page: 472[View Page 472] For he is to-day holding by some sort of title a Federal office expressly prohibited by the constitution to be held by a person occupying a seat on this floor as a member.
So far as the resignation claimed is concerned I hold it does not affect the case. The fact of his holding the office fixes upon him a disqualification. The simple fact of his having tendered his resignation does not remove his disability. Cases might arise, I do not say this is one, in which the Federal officer would tender his resignation with the understanding that it would not be accepted for the purpose of gaining admission to a seat on this floor, and after the exigency had passed, would withdraw his resignation and continue in the service of the Federal Goverment in the same capacity as before.
I may be permitted in this connection to remark without subjecting myself to the charge of casting any unfounded suspicion upon the sitting member that this case presents a curious anomaly. The notice of the contest of his seat was served upon him on the 15th day of October, a few days after the election. The ground of contest, and the sole ground, was th fact of his holding this Federal office. He had therefore nearly three months to divest himself of his Federal official robes, and purify himself in the eye of the Constitution of our State before presenting himself at the bar of the House to take the oath prescribed by the Constitution, and take his seat. But this he failed to do. And no sufficient reason has, or, in my judgment can be assigned for the failure. He was in close communication with the Federal appointing power and could, in the space of three or four days, have signified his intention of giving up the disqualifying office. And, sir, unless Michigan City is populated by people actuated by different motives from any community I have any knowledge of, quite a number of patriotic citizens could be found willing and anxious to sacrifice themselves in this behalf upon the altar of their country, and assist in relieving him of the encumbrance. Besides, sir, the power of accepting his resignation and appointing his successor, lies with his own political friends. And it occurs to me that from motives of prudence and policy it would be necessary barely to communicate the fact that the seat of a Republican Representative in this House depended upon his divesting himself of this Federal office, to induce them speedily to consummate the work. The avenues to the appointing power were open to him, and able representatives of his party were within the shadows of the Executive Mansion, and he could have been relieved of this disability long before the time he appeared at the bar of the House to assume his duties as Representative on this floor. Congress convened on the first Monday in December, and this House on the fifth day of January, and after the assembling of Congress and before the assembling of this Legislature ample time intervened to enable Mr. Shoenemann to purify himself in the eye of our Constitution by divesting himself of this disabling office. But be failed to do so, and his conduct in this regard is open to remark, and he must abide the consequences of his failure.
I therefore hold that by virtue of his holding a Federal office, the compensation of which is $1,400 per annum, at the commencement of the present session, he was, and still is, disqualified by the Constitution of the State from holding a seat on this floor. The disqualification attaches to him at the time he presents himself at the bar to be sworn in as a member, and, if disqualified then, no subsequent act of his can remove it. His divesting himself of his disability after that time would be of no avail. His right under the certificate of election he held would be then forfeited, and no subsequent act of his could revive his right Nothing short of the will of the people expressed through the ballot-box could renew his right.
Having thus, to my satisfaction, at least, disposed of Mr. Shoenemann, what becomes of the seat he occupies? Is Mr. Wile entitled to take and hold the seat thus vacated? I hold, sir, that he is not, and that the same is vacant and can only be filled by the voters of Laporte county.
There is a marked difference made by the framers of our constitution between cases of disability affecting the office of Represenative and that of membership in the General Assembly. This distinction is neither a new or original feature in our Constitution. The same distinction obtains and is recognized in the Federal constitution. Our State constitution in point of time was framed after the Federal constitution, and was patterned after it. And it is reasonable to suppose that the terms used by the framers of our Constitution, in cases where applicable were used in the same sense as used and interpreted in the Federal Constitution. Now, the Constitution of the United States makes a marked distinction between the office of Representative and membership in the House of Representatives. Whenever the Constitution of the United States disqualifies for Reprsentative it relates to the office and attaches at the time of the election, and all votes cast for a person so disqualified are virtually thrown away. But whenever it disqualifies for membership, it only has reference to the time the party appears to assume the duties and take upon himself the responsibilities of the office.
This distinction was clearly drawn and established, so far as the Federal Constitution is concerned, in the celebrated contested election case of Hammond vs. Hereick. In that page: 473[View Page 473] case Herrick was District Attorney for the United States, in Ohio, at the time he was elected a member of Congress from one of the districts of that State. He continued to hold said office after his election, and up to within a few days prior to his taking his seat as a member of Congress on its organization. His seat was contested on the ground of his having held said office at the time of his election. The Constitution of the United States provides that no person shall be a member of Congress who holds another Federal office. Now, if the restriction in the Constitution relates to the status of the party on election day, Herrick was ineligible. But if it relates to the time he was to take his seat, he was eligible. This was the issue in that case, and determined by it. This case was argued by able counsel and determined by eminent statesmen, and the decision was that the disqualifiction only attached to the party at the time he appeared to take the oath and enter upon the discharge of his duties, and not to the time of the election. In that case, Herrick, the successful candidate, on the day of the election was not qualified to be a member, as he was holding another Federal office. But he divested himself of this before he appeared at the bar of the House to take the oath as a member and upon full and searching investigation and calm deliberation, it was held by Congress that he was entitled to his seat.
This case clearly settled the principle so far as Congress was concerned that a person may be eligible as a candidate who would riot in his then condition be eligible as a member in cases where the Constitution simply refers in its disqualifications to membership. And that ease also settled the further principle that when the Constitution refers to the office and disqualifies a party, it relates to the day of the election, and all votes cast for a party so disqualified are thrown away. This distinction is recognised and decisively adjudicated by the Congress of the United States.
The Constitution of Indiana, as I have already remarked, is fashioned after the Federal Constitution, and its terms and allusions, where applicable, may properly be measured, expanded and determined by it. The Constitution of Indiana recognizes the same distinction between the representative office and membership in the organized legislative body. It provides that no person shall be eligible as Representative who has not certain qualifications. Here the disqualification refers to the office itself, and operates on the day of election, and all votes cast for a disqualified person are thrown away. Again, it provides that no person shall be eligible to a seat in the General Assembly who holds certain office. This is the cause operating in this case. And this clause, by the terms used, plainly refers to membership only, and the disqualification does not operate on the day of election, but the time the party presents himself for admission into the organized body as a member. The people elect the Represntative, but each House elects its own members, as they are severally constitued, by the Constitution, the judges of the election return and qualification of the members. Such being true, it is clear in this case that the disqualifying clause in the Constitution relied on relates to membership only, and not to the office of Representative and did not render the contestee ineligible to be voted for on the day of election, and consequently votes cast for him were not void. It was competent for the voters of Laporte county to vote for Mr. Shoenemann and it he had taken the proper steps in time to divest himself of this disqualitying office he would have been entitled by virtue of said election to take and hold his seat, But he did not divest himself at all, or at least in time.
The constitution expressly fixes the time when the General Assembly shall meet and organize, being the Thursday first succeeding the first Monday in January. This year the time thus designated fell on the 5th day of January. Now if Mr. Shoenemann had at any time before that day divested himself of his disability and presented himself free and unincumbered at the bar of this House, I hold that he would have been entitled to be sworn and to take and hold his seat But if he did not do so on or before that time he could not do so at all. Because all questions of qualification of members relate back to the first day of the session. Before that day Representatives are elected by the people, but on the day of organization each House elects and judges of the of the qualifications of its members. Before organization there are Representatives elect but no members. Organization must take place before membership attaches. And Mr. Shoenemann having continued to remain under the shadow of disability up to and after that date, cannot hold.
But having, as I have stated, been eligible to be voted for, the votes cast for him were not thrown away, and Mr. Wile can claim no advantage and treat them as void. His right depends upon showing that Mr. Shoenenmnn was ineligible on election day. If he can not show that, his right to the seat fails entirely. From what I have said, I hold it clear that Mr. Wile is not entitled to the seat, but that the same is vacant. I therefore am of opinion that the resolutions I have offered are right, and to use a Masonic expression, shall govern myself accordingly.
HOUSE OF REPRESENTATIVES.
TUESDAY, February 7, 1871.[Morning Session.]
Mr. STJOHN. Mr. Speaker: The subject page: 474[View Page 474] under consideration is of such a character as to demand a calm and dispassionate examination from every Representative of this body, not as partizans but as unprejudiced and impartial judges. It is a question which does not alone affect or interest the parties who are claiming a seat upon this floor, but goes behind all such considerations and reaches the right of an intelligent constituency to representation in the body to whom is entrusted, for the time being, the most important interests of the people. It is due that constituency that we treat this case with all the dignified consideration which it deserves; and to do this, we should for the time forget that some of us are Democrats and others Republicans. Neither should we act as mere attorneys, catching at technicalities, and reasonable doubts; but we should form our conclusions under the solemn oaths we have taken upon the facts as we know them to exist, and in the light of those books of acknowledged authority, and the adjudications which have been had in cases of similar nature before deliberative bodies of the highest order of ability.
It is agreed that no one except the contestor and contestee, was an aspirant for a seat in this House, from the county of Laporte alone. It is further agreed that the contestee, of the votes that were cast for the office of Representative, receive a majority of 275. That he was duly elected, there can be no controversy, unless the holding of office of deputy Postmaster were such a disqualification as to render the contestee ineligible to an election.
I assume, with great confidence, that the contestee, notwithstanding he was Deputy Postmaster was eligible to an election, and that to entitle him to a seat in this House, he had but to divest himself of the disability which that office threw upon him, before he presented himself at this bar to be sworn as a Representative. I am fortified in this position by not only the solemn adjudications of the Congress of the United States, but by the well matured opinions of our own learned Supreme Court.
Eligibility to an election is one thing, eligibility to a seat another. If the contestee were not a citizen of the United States or of the State of Indiana on the day of election, voting for him would simply have been a void act because he was not eligible to an election. But if the disability were such that he could by his own act divest himself of it at any moment, it would not be such as would reach to and affect his right to sit in this House if he performed that act at any time before he presented himself here for membership. He is chosen a Representative by the people; he is admitted to a seat by this body, who judge of his qualifications for that distinction.
I am gratified to be able to refer this House to a case almost precisely similar to this, which was decided in the British House of Parliament, as long ago as 1708. That of Sir Richard Allen, who was elected for Dunwich, and also, on the day of election, held an office in the customs for life, which disqualified him for a seat in Parliament. He was elected on the 5th of February, and on the 7th of the same month surrendered his letters patent under which he held the office in the customs, on the 8th of February his surrender was enrolled, and on the 9th of February he took his seat as a member of Parliament, after having submitted the facts for the judgment of that body who, without a division, pronounced in favor of his right to sit as a member of Parliament. I know well, sir, that gentlemen assert there is a distinction between that case and the one now under consideration in this; that Sir Richard Allen, held his office in the customs under the same sovereignty under which he sough a seat in Parliament, while Mr. Shoenemann held an office by appointment under the sovereignty of the United States, and seeks to hold an office here under the sovereignty of the State of Indian.
But I am still further gratified to be able to answer that objction by reference to a case decided by the Congress of the United States, in the first session of the tenth Congress. The case of Philip Barton Key, who was chosen a member of Congress from the State of Maryland. He was an officer in the British army, had served as such from 1778 until 1783, from which time he was placed under half pay, still holding his commission. On the 6th of October, 1806, Mr. Key was elected to Congress, for two years. Mr. Key addressed a letter to Mr. Erskine, the British Embassador, at Washington, formerly resigning his commission and half pay, in the British army, and this letter did not reach Mr. Erskine until the 28th or 29th of October, three days after the meeting of Congress, and after Mr. Key had taken his seat. This was a case wherein the contestee held an appointment under a sovereignty different from that under which he claimed a seat in Congress, and I think wholly disposes of that objection against the contestee in this case.
Then, if I am correct in this, the case of Elias Earle, elected from Soutli Carolina, is directly in point. He was a Postmaster on the day of election, and resigned his office as such prior to presenting himself at the bar of Congress to be sworn as a representative from South Carolina, and it was held by Congress that he was not disqualified.
Cases similar in principle might be multipled but I do not desire to occupy the time of the House by referring to them, and will pass to the question of fact so ably considered by the gentleman from Knox [Mr. Cauthorn.]
Did Shoenemann resign the office of Deputy Postmaster prior to taking his seat here? The page: 475[View Page 475] discussion of this question involves somewhat the definition of the word "resignation." Webster defines it to be, "to give up an office or commission, to withdraw," &c. In the argument of this question I am aware that I shall be met with the assertion that some of the testimony I rely upon was not before the Committee on Elections, whose report is in possession of the House. But, Mr. Speaker, I am not here to quibble over technicalities, like a pettifogger before a justice of the peace, but to decide upon the right of a free and intelligent people to be represented on this floor by the person whom they have chosen by a large majority to do so.
We are not setting as a jury in the trial of a man for his life, catching at every doubt, reasonable and unreasonable, upon which to base a verdict, but as intelligent men, with the facts before us, no matter whether they have come through the medium of a committee of this House or from some other source, so they be reliable.
If Mr. Shoenemann was Postmaster at Michigan City on the day of election, he was competent to be voted for and elected. If he was not such Postmaster on the day he presented himself to be sworn as a Representative from Laporte county, he was eligible to a seat in this House, and no hair-splitting, trickery or catching at doubts should exclude him. It is in evidence, that on the 15th day of November last, Shoenemann forwared his resignation of the office of Postmaster, to the Postmaster General at Washington City. That he subsequently learned, the President of the U. S. was the proper authority to whom to forward such resignation and on the 19th day of December last, the same was received at Washington and on the 20th day of December was accepted. This occurred fifteen days prior to his taking a seat in this Assembly. I shall be told this testimony was not before the Committee on Elections. I have a distinct recollection that before this case was referred to the Judiciary Committee the admission was made upon this floor by the friends of the contestor that such was the fact.
But I am not to rely upon this alone, there is other and equally reliable testimony in the shape of letters and dispatches. But I am not confined to this. When the case came on for hearing, before the Judiciary Committee, the parties were present, the contestor by his attorney, and the contestee in person, and both I were heard before the committee, upon which occasion, the contestee informed the committee that his resignation was so forwarded, and was unconditional. Do gentlemen doubt this statement? then I refer them to the letters and I dispatches which are made a part of the majority report in this case. We certainly do not possess the hardihood, to say in our places, that the dispatches received from Mr. Packard, are forgeries, or that that gentleman has been guilty of falsehood in stating that the resignation was received, accepted and the name of Willets sent to the Senate for confirmation.
But say gentlemen these dispatches were not all of them in evidence before the committee. I ask, does the circumstance that they were not before the committee render them less true, or entitled to less weight in this House? If they would have been true before the committee, they are no less so here. And this House will not be justified in rejecting them, because they happen to become known as facts since the report of the Committee on Elections.
Assuming these facts to be true, there certainly can be no one in this Assembly who will assert that the resignation of Shoenemann was not forwarded, received and accepted prior to his taking the oath as a member of this General Assembly. These acts of the contestee, I assert, ended his official career for the time as Postmaster, and relieved him of all the disability with which that office had encumbered him, and fully prepared him to as sume the responsibilities of the office of Representative.
But, say gentlemen, his resignation although forwarded and received is not yet complete to divest him of the responsibilities and the office of Postmaster. This position, I think, untenable. The resignation is the act of the appointed, and not of the appointing power which created him; and the resignation being an unconditional act, the failure of the superior to recognize or accept that resignation, cannot prolong the office in the appointee one hour. If such be the conclusion from the weight of acknowledged authority, does it become the dignity of this House to plant our feet on a failure of testimony at the moment when the Committee on Elections had the case under consideration, or would it better comport with the dignity of Representatives of a great Commonwealth to decide the case upon the testimony before the House and in the direction which that testimony pointed?
I will suppose for the sake of the argument, that it requires the concurrence of the appointing power to complete a resignation and to divest the appointee of his office. We have then this condition of things: A being appointed to office by the President, resigns, or attempts to do so, by tendering his resignation, which the President declines to accept. A becomes the slave to a two hundred dollar Postoffice, and his securities perpetually bound for his faithful performace of its duties. Such a proposition needs only to be stated to become absurd and ridiculous. If the failure or refusal of the appointing power to select a successor could prolong the official career of the page: 476[View Page 476] appointee, then I can plainly perceive how much mischief might result from such refusal.
I will suppose the Senate of the United State to be Democratic and a House of Representatives chosen in which there are also three majority Democratic and that five of the Democrats so elected, had been Postmasters at a salary of one hundred dollars per year at the date of their elections and in order to qualify themselves to sit as Representatives they tender their resignations in due form and time to President Grant, who for obvious reasons declines to accept them, thereby, upon the theory of gentlemen, making a Republican House of Representatives, when the constituency of that House was clearly Democratic. This would create out of our democratic Republic a military despotism whose darkness would relieve by contrast the repulsive features of the middle ages. It is not difficult to imagine the appearance of the horrified countenances of our democratic friends at such a wanton disregard of the sacred rights of representation by one who was the servant and not the master of the people.
Fortunately, however, the wisdom of those who have been called upon to determine this question, took a broader and more democratic view of the rights of the citizen, and have decided both in the English courts and our own, that the resignation is complete when the document announcing it has been received at the proper department. That it is the act of the officer and not of the Administration. I refer for authority on this subject to the case of Gilbert vs. Luce, 11 Barbour N. Y. Report 94, 95, in which it is clearly held that the act of the deputy Sheriff in tendering his resignation relieves him at once from the office without the concurrence of the Sheriff who appointed him. Again, in VanOsdall vs. Hagard 3, Hill, N. Y. Reports 243, where the same doctrine is as strongly held. Again, in the United States Digest, Vol. 2, page 317, section 30, 31, 32, 33 and on page 318, section 42, the same ruling is made. Again, in the United States vs. John C. Wright, decided by Judge McLean, it was clearly announced as sound law that the appointing power cannot compel the appointed to continue in office against his express desires. And these cases were not decided upon the local statutes of any State, but upon the broad and universal principles of the common law and common right.
I trust, sir, it will be long before this free and prosperous State shall be cursed by a line of decisions authoritatively pronounced which shall unsettle the doctrine therein published or trample on the rights which it has been the delight of these eminent jurists to guard as the sacred inheritance of a people; rights for an infraction of which the fathers of the Republic, met in the shock of battle the proudest nation of the world.
I may be pardoned for glancing at the Constitutional argument and objections put forward in the minority report of the Judiciary Committee. For an argument against Mr. Sheonemann's right to a seat we have the assertion of the minority that the provision of the Constitution found in section nine of article two, at once forbids the contestee a seat in this House. If this clause of the Constitution was meant by the framers of that instrument to prohibit the election of persons under the disability charged upon the contestee, I am at a loss to know what the same distinguised gentlemen meant when they adopted section seven, of article four, which informs us who shall not be a Senator or a Representative as follows; [Mr. StJ. reads.]
Here, sir, are disqualifications which forbid an election; why are they so? Simply because they are disabilities from which the party may not by his own act relieve himself. If the disability mentioned in section nine, article two, were intended by the framers of that instrument to operate equally upon eligibility to an election, why do we find the two provisions so separated? Is it not reasonable to suppose both would have been contained in the same sections instead of being found in different sections of different articles? The inference, from the language and position of the clauses,is most forcible that the one was intended to inform us what disabilities prohibited an election, and the other such as would disable the party from taking his seat while the disability continued. The language of the one is "no person shall be a Senator or Representative" &c., the other, "no person holding a lucrative office" &c., ''shall be eligible to a seat."
There remains but a single point made in the minority report to which I desire to refer, and then I have done. It is asserted that the contestee held the office of Deputy Postmaster at Michigan City, at the date of his election, and that such holding was a notice to all the electors of the county of Laporte, and consequently the votes which were cast for him were simply thrown away, and could not be counted. This position is not well taken, nor can it be sustained by the course of reasoning pursued by the minority report.
To support this theory ot the report the office must have been such an one as the whole population of the county were legally bound at least to take notice of--an office the jurisdiction of which extended throughout the county. The office of Postmaster cannot be presumed to have any jurisdiction attached to it. No particular number of citizens, were compelled to recognize its existence; no particular territory was bounded by its authority, no person in fact, within the State, except the officer himself was in any manner bound to recognize its existence or to avail himself of its facilities. Unless some one or more of these page: 477[View Page 477] attributes attached to it, it was not, nor can it be such an office as is claimed in the minority report, and the electors of Laporte county were in no wise bound to take notice of its existence.
The citizens and electors of Michigan City and vicinity, could as well have used any other office in the county or State, without a question of power or right. Such an office as would meet the theory of the minority report would be that of Clerk, Treasurer, Sheriff, Auditor, &c., offices through which the citizen is bound in law to transact business, or leave it undone;--offices whose writs and commands the citizen is compelled to respect, and whose seals he is bound to recognize.
From the facts and the law in this case I arrive at the following conclusions:--see page 237--middle of the second column.
CONSTITUTIONAL CONVENTION.
[IN CONTINUATION FROM PAGE 239--MIDDLE OF THE FIRST COLUMN.]
The question being on a motion to indefinitely postpone the Convention bill--
Mr. CALKINS of Porter, said: Mr. Speaker, I shall take up but very little time upon this question. But I have thought it due to a large portion of the people of the State--to much the larger portion of the people of my district--that I should present this question here to the General Assembly. I was sorry to find that my friend from Putnam [Mr. Neff] was desirous of strangling this matter at the very threshhold. But it would seem that when a man of his eloquence and power, his position and influence in this House, makes such a prompt and decisive opposition to any bill, such a bill might be considered as no indifferent matter--as no mean thing.
This bill which I introduced is copied from the act of 1848, under the provisions of which the Constitutional Convention was called in 1840, whose labors resulted in the adoption of the present Constitution of the State. It was copied with the necessary changes as to the time of holding the election (next September.) As to the question of calling a Constitutional Convention, it seems to me that there could be no possible harm in submitting this question to the people. Even if there be not any general feeling in favor of a convention the simple reference to the matter for a popular expression could result in no harm. But seeing a disposition from respectable quarters to trample the matter under foot, I shall present only a few considerations in favor of the bill--and very briefly.
The first matter to which I desire to call the attention of the House is the Judiciary article in our present Constitution. It is known to all that this article provides for certain courts, leaving a discretionary power with the Legislature to provide other courts. It has been found by experience, for nearly the last quarter of a century, that our judiciary system is very imperfect, as now organized. And in every session of the Legislature we find that one-half of the entire time is taken up with the consideration of court bills; and I ask, respectfully, if this one fact of taking up so much time here with these purely local matters is not a sufficient argument to convince any man that we need reform in this respect? Again, the Constitution limits the number of Judges of the Supreme Court to five, throwing entirely too much labor and responsibility upon the men in this exalted position.
It has been found by experience in the adjacent States--in Michigan, in Illinois and in Ohio--that five members of the Supreme bench are not sufficient; and the number has been increased in those States. The new Constitution of Illinois, increases the number, by providing that it shall not be less than seven, letting them go as high as may be necessary. Now, as we have been informed here, if we increase the number of our Supreme Judges to five, it will be at least two years before the last ease will be reached which is now on the docket. And what is the consequence? If a man goes into court to enforce the collection of his debt, it is inevitable delay. And all the dishonest party has to do to gain time is to appeal to the Supreme Court, and he gains two years time. With respect to the Circuit Courts: If we take my own district for example, in that district there are eight counties--about twenty-five thousand voters--and the business there will require the court to be held thirty-seven weeks out of the fifty-two. And I suppose the same can be said of other circuits. Now I submit that this requires a remedy in the Constitution, by limiting the number of inhabitants in each district or circuit; which will enable the Judges of the different circuits to do the business of the circuits, giving that due attention to each case which ought to be given. And yet we find gentlemen here opposed to increasing the circuits on the score of its expensiveness. I state only what is true with respect to my circuit and many others. And as to the Common Pleas Court--that Court has a jurisdiction almost co-extensive with the Circuit Court and there crowded into it is all the Probate business besides.
According to my experience (though it has been but a brief experience) of all the Probate cases, there is not one in ten of the cases of administration and guardianship which is not settled by the attorneys and administrators exclusively, because the Judges have not time to hear them, and the result is that a great many widows and orphans are cheated out of their rights before the law; and I call upon page: 478[View Page 478] every lawyer to bear me out in what I now say. There is, of course, occasionally an exception--occasionally there is a judge who is alive to these interests, and he examines all the cases coming before him. Now these are some of the defects in our Judiciary system. But gentlemen say we can reorganize the system by legislation. I grant it in part; but so far as the Supreme Court is concerned you can't increase the districts and judges beyond five. Then we should call a Constitutional Convention, for such a body only can afford a remedy.
I will call the attention of the House to the very perfect judiciary system of the new Constitution of Illinois. I have not time to read it at length, but just to refer to it. But there is another thing to which I ought first to refer and that is the importance of removing these Judges away from the influence of the mere will of partizans. No people, perhaps, have suffered more for these partizan decisions than the people of Indiana. My position here is that the Judges should be elected or appointed by some other method. But perhaps it would be urged that if they were appointed by the Governor or chosen by the Legislature the same results would follow; so I will leave that branch of the subject without discussion here, and call attention to another great defect as I claim in our State Constitution, and that is with regard to corporations.
It is well know that when the Constitution was adopted there were but very lew railroads in the State; but to-day the railroads of the State control the entire balance of power as to capital. It was thought important to engraft into the old constitution a provision in relation to banks. Banks were then the corporations the people were fighting. I can remember, myself, the time when it was a peculiar hobby for politicians to point at the banks, as holding in their hands a very dangerous power. And it was thought of so much importance that they incorporated into the Constitution an article on the subject of banks. The subject of railroads was not touched in the convention. There is not a single line in the constitution regulating these railroad corporations. Now in the State of New York, almost everything, whether social, financial or political, is in the hands of those who own or control railroad corporations, and the people of Indiana, if not now, they are likely soon to be just a much controlled by railroads, and certainly will stand just as much in need oi regulations for railroads as the people of the State of New York. In the State of Illinois, that was a principal consideration urged by the friends of that measure for the call of a Constitutional Convention; and was regarded as the principal thing throughout the State. This interest in Illinois, is no greater than it is in Indiana; yet they found it absolutely necessary there, in order to protect themselves from the grasping hands of these moneyed corporations to call a Constitutional Convention.
Now, I am in favor of railroads--in favor of building them everywhere, as needful and necessary to the development of the resources and the very civilization of every country; but I am not in favor of giving them power to monopolize the financial and commercial interests of the State. As the case is now, I can go to the city of Chicago and get a ticket to New York for five dollars less money than I can get it from Valparaiso or from Plymouth; and I can go to Chicago and get a freight car to the Eastern cities cheaper than I can get it from any interior town in Indiana. What is the reason of this? It is because the railroads have a perfect legal right to trample the rights of the citizens of the State under foot in this way. Now, it is a fact that these railroad corporatiens--that is, their roads are considered as quasi highways. And in one respect these corporations are common carriers, and their roads are highways; and in another respect they are private corporations. They are so recognized in the new constitution of Illinois, and I desire to call attention particularly to that section in the constitution of Illinois defining the rights of railroad corporations in this respect:
Railroads heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and shall be free to all persons for the transportation of their persona and property thereon, under such regulations as may be prescribed by law, etc.
So it has been thought best to define the powers and duties of these corporations and place proper restrictions upon them in the State of Illinois, because they recognize the fact that they hold the balance of power.
There is another thing to notice here, and that is the power of the railroad companies to "water their stock;" that is to say if one or two individuals buy up or happen to own a majority of the stock of such a corporation, in entire disregard of the rights of other stockholders; they can "water their stock," so as to render the stock owned by the minority absolutely worthless. This matter ought to be remedied. We ought not to allow companies to hold such entire control over the moneyed interests of the State and of individuals. Looking into the statutes of this State, I find a law passed by the General Assembly by which railroad companies have the right to condemn absolutely, the realty of individuals in this State for the purposes of right of way, of getting gravel for their road beds, and for any purpose in the interests of those corporations, to condemn the property of individuals and that without notice. The law gives the railroad corporations the right of possession--no page: 479[View Page 479] matter if the assessment is greatly too low no matter if the rights of the individual have been entirely disregarded--he is completely at the mercy of the corporation. It may be said that this is a matter of hasty legislation, and that it can be remedied in that way. My answer to that is: If there were proper guards in the Constitution no such hasty legislation would take place, and there would be no suffering of wrongs to which I have referred. The Constitution is the proper place in which to guard this matter. But I will not take up further time with it than to say this: That if the House be determined to vote down the present bill--and I apprehend they will--the time is not far distant when there will be such a popular thundering for relief at the doors of these halls as will be entirely irresistable--even like that which was heard in the State of Illinois. It is true, we do not feel this evil so much now. But every year, by the consolidation of these roads, wealth is being added to these corporations; and the great power that is given to them to trample on the rights of individuals, is fast making them great centers of selfish influences that should be regulated by the supreme power.
There is another matter to which I will call the attention of the House; and that is in relation to warehouses. That is a subject to which the attention of the Constitutional Convention of Illinois was also particulaaly directed. There are no restrictions in this State in relation to grain warehouses. I may consign a car load of grain at Michigan City to some party in Indianapolis, and the railroad may deliver my grain to any elevator near its track without respect to my particular assignment, and it must be shipped from thence to the consignee at my expense. And if the railroad party happens to be at enmity with the party to whom I make my consignment the railroad may absolutely refuse to deliver it to the particular warehouse to which it is assigned. This matter was thought to be so important that they made it the subject of a distinct article in the Constitution of Illinois; and I desire to read it for it is a very good one:
All railroad companies receiving and transporting grain, in bulk or otherwise, shall deliver the same to any consignee thereof, or any elevator or public warehouse to which it may be consigned: Provided, such consignee, or the elevator, or public warehouse can be reached by any track owned, leased or used, or which can be used by any such railroad companies; and all railroad companies shall permit connections to be made with their tracks, so that any such consignee and any public warehouse, coal bank, or coal yard may be reached by the cars on such railroad.
Thus taking out of the hands of the railroad companies the power to control the handling of all the grain shipped on their lines. Now a railroad may build a warehouse of their own, and place my grain in their own warehouse. It is exclusively within their power to control all this, and it adds a large item to their finances at the expense of the people. By this means, alone, there would result to the shippers in a single year a gain of more than treble the expense of a constitutional convention and this money would be retained in the hands of shippers. The Illinois Constitution also defines warehouses, declaring them to be public warehouses, and provides for the inspection thereof.
There is yet another thing to consider, Mr. Speaker, (and I will soon yield the floor,) and that is in relation to minority representation. I announce this principle to be true: That it is just as essential that the people of the different States of this Union adopt this principle of protection against political abuses, as it is to do anything else to maintain their own existence. Unless the different States shall sooner or later adopt something of that kind, in my judgment, sooner or later, such internal commotions will be produced that an absolute demand will be made for it. Now in the Illinois constitution it is provided that there shall be three members of the General Assembly chosen for each representative district, and every elector shall be entitled to cast as many votes as there are representatives for his district; and any person desiring to vote the three for the same candidate he shall be entitled to do so, and his votes shall be counted--so that two representatives of the majority party and one of the minority may be Representatives on the floor of the halls of legislation. No matter what the political complexion of the district, the minority can always select one and the majority two. The principle is being embedded in the popular mind that the whole people shall be represented. Take now the State of Delaware--there they elect Democrats entirely--there is no Republican representation whatever. But take the State of Iowa and there they have but seeenteen members that belong to the Democratic party out of one hundred and fifty. Perhaps, Mr. Speaker, all this has been well enough so far, considering the trying circumstances we have just passed through, but the time will soon come, when this partizan feeling shall have died away, and when this principle of representation will be demanded, and I believe it is just as essential in such a Government as ours to have the principle of minority representation engrafted into our organic law as it is to have a Constitution at all.
Mr. Speaker: With these remarks I submit this question. I ask those who are opposed to this bill, what harm can it do to allow the people to say whether or riot they will have a constitutional convention--?whether or not there are omissions and defects in the present constitution which ought to be supplied and amended?--and especially when I have shown page: 480[View Page 480] that by the supply of one article ia a single year there will be saved to the people three times the expense of such a convention?
Now, sir, I am proud of my State, but I look into the State of Illinois and I find that they have outstripped us as to the increase of population; and I look into the State of Ohio, and I find the same result. In the last ten years Illinois and Ohio have increased in material wealth almost one-third more than the State of Indiana, and I ask myself, why is it that with just as good resources, just as favorable seasons, just as good a people, just as enterprising, why is it that they have outstripped us, not only in population but also in material wealth Illinois can not be a better State than Indiana. She may be for agricultural purposes, but neither Illinois nor Ohio are ahead of our State in mineral resources. Yet it is nevertheless true that both of these States have in the last decade increased in population and material wealth almost one-third more than the State of Indiana. If this is the result of bad legislation, then I ask that the question be submitted to the people. If gentlemen say the State is ruined in consequence of bad legislation, my answer is, that just so long as gentlemen continue to vote capital out of the State, just so long will the State remain in the rear; and that may not be the fault of the constitution. But still the defects I have pointed out in the present constitution certainly demonstrate that amendment much needed in that instrument; that the better policy will be to revise lhe entire constitution. [See page 239.]
