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Show the uonmssiox. CONTINUED FBOJ1 THE FIRST PAGZ. - Green claimed that the delay in the performance of a plain duty did not prevent the performance thereof. Ho notified the republicans that under the order of the court they should insist that the commission should look into the proceedings quo warranto. Shellabarger followed for tbo republicans. repub-licans. Ho said since tho commission refused to hear testimony concerning the quo warranto, he thought the discussions dis-cussions on that were uncalled for. The quo warranto was only alluded to in Governor Drew's certificate. Those I proceedings could not therefore be brought here. He submitted the proposition that all the acts in relation rela-tion to the accomplishment of a certain cer-tain act must anticipate the act itself. Hence every act that followed the electoral vote was excluded. Ho contended con-tended that the power of the state was limited to the appointment, and that no act pertaining to the appointment ap-pointment could be had after the appointment had been made and the office had passed away. Thurman asked, supposing the case to be as stilted, would there be action looking to n:i inquiry whether ny appoiatment was umdo. Shellabarger sid: When all that lould be done by a state had been ione according to the requirements of he law ol the state existing; on the lay of the election, the power of the late passed away, and it became hereiiltpr n fptlftr! inut Tl. of the state waa on that day forever ended. He conceded that it was in ; the power of tho state to try by her i own machinery the power of hei electors, but the scrutiny must be made prior to the discharge of the functions of the office. Machinery to conttst an election after the office had passed away would, he said, be an absurdity. Evarts closed his argument for the republicans. He said: The commin-sion commin-sion had decided to receive evidence touching the eligibility of Hum-phreys, Hum-phreys, but had not passed on the question of what the effect is as to the acceptance or rejection of the vote thus challenged for ineligibility. It will reccive'evidence on that point, which is oflered, first, as to whether the exception to Humphreys' vote is maintainable; second, whether if maintainable and maintained, the constitution allows the rejection of a certified vote transmitted and opened, on that ground. He argued that tho other side had failed to prove that he held an office when he was voted for, and the burden of proof was oh thorn. Could the law hold an officeholder to the performance of his duties one ' moment beyond hia will? The authorities au-thorities Were clear that a cUisen might resign his oilice even without the resignation being accepted. This, then, being rejected from the commission's com-mission's consideration, the sole duty for the commission is to determine, out of thceH tnrco certificates, what and biiw many votrsare to be counted for the state. He argued that the first certificate was elearly and certainly the one to be counted. He argued against the circuit judge making a law which should reverse the vote of a stale and compel the judge of the supieme court toacquitsce. The BUte is nut to be defrauded. She might beforo the electoral vote was cast have instituted her quo warranto standing in her own tribunals, clothed with the majesty of her executive ex-ecutive power and appealing to her judicial authority, and asiied theoe men : " By whai warrant do ye presume pre-sume to exercise the power of this state ?" and eo standing she could have stripped from them the government govern-ment they had stolen. Merrick closed the argument on the democratic side. He said the burden of proof rested on their side, to bIiaw that at the time of casting the electoral vote Humphreys did not hold office. He argued thai until the recognition waa accepted by the power that conferred the office and the fact appeared on record, he must be held to beatill occupying the office. llepresentative Hoar put the case of an officeholder being elected to the senate, and linked whether if his resignation of the office were not accepted, he was thereby to be kept from his seal? Merrick replied that the fact ot his being admitted to his seat in the senate sen-ate would be a discharge from the offiuo which lie had he-Id, provided ho had, prior to that time, tendered his resiguatien. Hoar inquired whether the siibo rule would not apply in the case of an elector as well as in the case of a senator? Merrick replied that in the case of senator the disability would be only personal, while in that of the elector it would be impersonal; in other words, the state waa positively forbidden forbid-den to appoint an office holder as an elcelor. It was a limitation upon the power f the state and not personal disability of men. Representative Abbott You also claim that even if the acceptance of the resignation was necessary, the resignation itself must be made to the court? Merrick Unquestionably the resignation re-signation must be made to the power; that gave the appointment. Suppose Humphreys had resigned to the clerk of the court at Newark, Ohio, would that be sufficient ? i Presiding Justice But if he sent it to the judge and tho judge directed it to be filed? Merrick If that is done while the court ia in session then it is the act of the court. Representative Garfield Do you hold that in case of a long vacation, or in case of tho court being abolished by law, or in case of the death of tho judge who gave the appointment, this officer could never have resigued? i Merrick I should have referred that case lo one of the returning boards in the south. I hardly know what reply to make. Garfield I understand your position posi-tion to be that he could not reeigu except while the court was in session? Merrick I presume that death and tho extinction of the office aud the abolition of government, and the wiping out of the nation, make exceptions ex-ceptions to all principles of law. ' Justice Miller You s.ty that the distinction between a man who accepts ac-cepts the office of senator and the man who accepts the office oi elector is that in one case the objection goes to the power of the state and in the other oase does not; what is the difference iu the question of the power of a state? . . . , Merrick In one case the prohibition prohibi-tion is that no person shall be a representative re-presentative or senator who has not attained a certain age; in the other case it is that no person ehall be appointed ap-pointed an elector who holds fin office of trust or profit. Wherever there is power given to do an act the donee of the power can only exercise it according accord-ing to precise restrictions and limita- lions of tho donation, i Merrick then passed on to the question of the rival certificates and was arguing in favor of the legitimacy legiti-macy of the second and third certificates. certifi-cates. 1 - Senator Thurman Suppose the Tilden electors had net voted at all, would it be competent toBhow by subsequent sub-sequent state proceeding that the "J " LIU U1U XiUl vuuo tiuu no title? That ia the real question. Merrick Most unquestionably. The state cannot have her voice simulated, sim-ulated, whether her real voice , is spoken or not. Merrick then quoted a number of authorities from the supreme court, showing that the uniform rule was for that court to follow state decisions de-cisions on the subject of local laws of the state, and commented on Borne of Judge Bradley's opinions lo that effect.. Merrick claimed, iu conclu-Hion, conclu-Hion, that tho record of the quo warranto war-ranto proceedings was, therefore, a commission, if not as evidence, at least as Bhowing the law of Florida, and that it informed the commission that according to Florida's law the Hayes electors were not appointed and tho Tilden electors were. Adjourned. |