Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress Page: 4,311
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4311
GALES & SEATON'S REGISTER
4312
H. oi R.]
Kentucky Election.
[Mat 28, 1834.
He is one who is acting in office without having- a legal
appointment; but whilst in office, his acts are good as
concerns the public and third persons. Those of an
officer de jure are good against all the world. The
validity of the acts of an officer de facto are expressly-
recognised by the decisions of the supreme court of the
State of New York; for the truth of which, I appeal to
an honorable gentleman who is himself an able lawyer—
I do not mean the gentleman before the Speaker's chair,
[Mr. Vastderpoei,,] but him who occupies the seat to
my right, [Mr. Beahbsi.i;t.] I suppose I am right
when I call him lawyer. I judge from his very able
speech on the deposite question; although I differed
from him in every particular, he certainly searched the
three departments very closely, though some have said
he was quite unfortunate in some few expressions, I
mean "perish credit, perish commerce;" but be that as
it may, it was certainly very wanton, yea, cruel, for the
editors of newspapers to attack a member of Congress,
because, in the heat and fury of debate, he happened to
get hold of a few wrong words; but, perhaps, to re-
lieve the honorable gentleman from unnecessary trouble,
I had better read the extract:
" Acts of an officer de facto, who comes into office by
color of title, are valid as it concerns the public or third
persons who have an interest in his acts—7 Johns. Heps,
p. 549." The gentleman from Kinderhook [Mr. Vax-
DKitroEi,] has argued that, in this case, the sheriff of
Garrard county had no power under the law to make
an appointment before ten o'clock; that the power
being contingent was improperly exercised; and, conse-
quently, Grant was not a legal judge; and from these
premises lie lias laid down the broad proposition, "that
whenever a contingent power is to be exercised, it can
never be exercised until the contingency happens; that,
fit should, an officer's appointment would be illegal and
his acts absolutely void." To grant the premises, ! deny
the conclusion; because it is at war with reason and the
settled laws of the land. The gentleman from Philadel-
phia [Mr. Binhey] touched on this subject, but I pro-
pose to investigate the subject a little farther. The' gen-
tleman [Mr. VANDiiitroEt] has presented legal proposi-
tions, but no law, no book; why did he not? I suppose
he is a considerable lawyer; but that is not sufficient, I
want other evidence. He says he has not examined into
the law since the question was made. And why ? Time was
given; several days have elapsed since the gentleman from
Philadelphia addressed the House. The library is near
at hand, quite convenient for him at any time; and yet he
says he has not examined into the law. That may be, but
he has said enough to convince my mind tiiat he either
does not understand the subject, or examined far enough
to find the law does not bear him out in his absurd posi-
tions. The gentleman does not stand alone in his doctrine
of contingent power. I believe the same ground is taken
by all who advocate that side of the question. As this is
the foundation of all the arguments on this branch ®f the
subject, it deserves minute inquiry.
I will now present a case in point, decided in the court
of appeals of Kentucky, which ought to be familiar to the
mind of my colleague from Louisville, [Mr. Pope.] The
case is, the justices of Jefferson county vs. Clark, report-
ed in first Monro, page 82. The facts of the case were
these: the county court recommended Lawrence and
Clark to the Governor of Kentucky, as fit persons, the
first to be commissioned a justice of the oeace. Law-
rence, who was commissioned, refused to accept the office,
and the governor without any further recommendation,
commissioned Clark a justice of the peace. The constitu-
tion of the Stale declares that, when a justice of the
„ . peace shall be needed in any county, the county court
to have forgotten the validity of the acts of an officer de for the same shall recommend to the governor two per-
facto, recognised bylaw. What is an officer de facto?) sons to fill the office, one of whom he shall appoint.
tion 5th—" elections for representatives for the several
counties entitled to representation, shall be holden at the
places of holding their respective courts," &c. This latter
clause shows that the terms are embraced in the general
term of the former; but the former is not restricted to the
latter, it is plain, because different expressions, not synony-
mous, must mean different things, and convey different
ideas to the mind; and when the constitution speaks alone
of representatives to the Legislature, the language is used
according to the latter clause, specifically pointing out
representatives for the several counties; and then, again,
the clause recited concerning the qualifications of voters,
speaks emphatically, that every citizen, having the said
qualifications, shall enjoy the right of an elector in all
elections for representatives. Now, according to the
construction of the honorable gentleman, this latter ex-
pression does not include a representative to Congress,
but must mean a representative to the Legislature of the
State; which would narrow down the meaning so as
to exclude State senators, governors, and lieutenant
governors; and from this argument the qualification of
voters for these latter officers could be qualified and
changed by the Legislature just as they pleased; whilst
that of the former would be permanently fixed, which
would certainly be a strange state of things indeed. But
it is plain that such reasoning is unsound, and the evi-
dent meaning- of the expression, representative, as used
throughout, is a word of general import, relating to all
public agents chosen by the people at the general elec-
tions. If these considerations arc duly weighed, I think
the gentleman will not persist farther with his doctrine
of legislative restriction. It is now contended by the op-
position, generally, that the votes taken in Garrard coun-
ty, on" the first day of the election, before the hour of ten
o'clock, were illegally taken, and cannot be counted,
the greater part of which were given for Mr. Letcher.
This is a position which I deny. What are the facts as
stated in the depositions? An election had been held
for trustees of the town of Garrard county; on the first
morning of the election, voters were at the polls insist-
ing to vote early in the morning for fear a crowd would
produce the cholera, which had just prevailed with
almost unparalleled mortality. The officers all being
present, except Mr. Wheeler, one of the judges appoint-
ed by the court, the sheriff appointed Moses Grant, Esq.
in his stead, and the polls were opened about nine
o'clock in the morning; Grant agreeing to act only until
Wheeler should arrive, having first taken the necessary
oath. The inquiry is now presented, What is a proper
construction of the law as to the time of opening the
poll? The expression, by ten o'clock, shows, conclu-
sively, that restriction of time was not intended; the
preposition by, in the sense here used, means at or be-
fore. This is merely a command to the officer, saying,
You shall not delay the performance of your duties after
that hour, leaving his discretion free to act before the
time in perfect accordance with the provision of the con-
stitution, giving the whole day, as I think T have clearly
demonstrated. This being the case, when Wheeler failed
to attend, could the sheriff legally appoint Grant to act
in his stead? Most unequivocally; for such is the express
authority given in such a case, as has been shown from
the law which I have read to the House. But to sup
pose that 1 have been wrong in the positions which !
have taken, and the gentlemen in the opposition are right
when they say that the sheriff could not appoint before
ten o'clock, and that Grant was not a legal judge of the
election, will these admissions prove that the votes taken
are illegal and the election void? Certainly not. Gen.
tletnen have not properly considered the difference be
tween illegal officers and illegal acts; they seem entirely
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Gales, Joseph, 1761-1841. Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress, book, 1834; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30759/m1/70/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.