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ABSTRACT OF VOTES CAST FOR SECRETARY OF STATE-Continued.

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ABSTRACT OF VOTES CAST FOR SECRETARY OF STATE-Continued.

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REPORT OF THE COMMITTEE ON PRIVILEGES AND

ELECTIONS.

Mr. Hollingsworth submitted the following report:

The standing committte on Privileges and Elections, to whom was referred the memorial of Chester R. Mott, an elector of the Thirty-first Senatorial District, with accompanying documents and evidence, contesting the right of Mos s H. Kirby to represent said district in the Ohio Senate, having had the same under consideration, submits the following report:

The seat of Moses H. Kirby is contested, as alleged by the contestant, Chester R. Mott, on the sole ground that said Kirby, at the time of his nomination and election to the office of Senator of said district, was duly commissioned, qualified, and acting as Prosecuting Attorney in and for Wyandot county, Ohio.

No question is made as to Mr. Kirby having received a majority of all the votes cast for Senator in said district at the October election, 1879, his majority over his opponent, Stephen R. Harris, being four thousand one hundred and ninety-four.

The proofs submitted to the committee show that the contestee, Moses H. Kirby, was duly elected to the office of Prosecuting Attorney of Wyandot county at the general election on the second Tuesday of October, 1877, for the period of two years, commencing on the first Monday in January, 1878, and continuing until the first Monday in January, 1880, and until his successor should be elected and qualified; that he was subsequently legally commissioned and qualified as such Prosecuting Attorney, and entered upon the discharge of the duties thereof; that he continued to hold said office until December 2, 1879, when he tendered his resignation in open court to Hon. Thomas Beer, Judge of the Common Pleas Court within and for the said county of Wyandot, which resignation was then and there duly accepted, and the vacancy thus occasioned was immediately filled by appointment in due form of law.

On this state of facts it is claimed by the contestant that the contestee, Moses H. Kirby, was disqualified by Section 4, Article 2, of the Constitution of Ohio, from being voted for at the October election, 1879, for the office of State Senator, and that all votes cast for him at said election were absolutely void.

Section 4, Article 2, of the present Constitution of Ohio reads as follows:

"SEC. 4. No person holding office under the authority of the United States, or any lucrative office under the authority of this state, shall be eligible to or have a seat in the general assembly; but this provision shall not extend to township officers, justices of the peace, notaries public, or officers of the militia.'

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The corresponding section in the Constitution of 1802 reads as follows: "SEC. 26, ART. 1. No judge of any court of law or equity, secretary of

state, attorney general, register, clerk of any court of record, sheriff, or collector, member of either house of congress, or person holding any office under the authority of the United States, or any lucrative office under the authority of this state (provided that appointments in the militia or justices of the peace shall not be considered lucrative offices), shall be eligible as a candidate for, or have a seat in, the general assembly."

The proper solution of the question presented to the committee involves a construction of the words "eligible to or have a seat in the general assembly," as used in the Constitution of 1851. The contestant insists that these words are synonymous with the corresponding clause in the above section of the Constitution of 1802, to wit, "eligible as a candidate for, or have a seat in, the general assembly."

This is the real point in issue. Under this latter section it has been repeatedly decided that a person holding an office "under the authority of the United States, or a lucrative office under the authority of this state," at the time of being voted for as a candidate for member of the General Assembly, cannot, by subsequently resigning such office, become qualified to take his seat in the General Assembly. The reports of committees in both houses, however, as well as the votes taken on the question, show that this conclusion has been seldom if ever reached without a contest and division of opinion. The question, therefore, even under the Constitution of 1802, is not entirely free from doubt. In fact, an uncertainty seems to have existed in relation to this clause in said Constitution from the time it went into effect until it was replaced by the Constitution of 1851.

In the exhaustive brief furnished the committee by the contestant, he cites cases as late as 1849, in one of which (Brown vs. Edson) the issue involve an exact parallel to the one now under consideration. The point is stated in the jity report of the committee on Privileges and Elections in the following language: "The real question of issue between the majority and the minority of the committee is, does the fact, that Mr. Edson, holding the office of prosecuting attorney at the time of his election, render him ineligible as a candidate for and to holda seat in the general assembly?" Appendix to House Journal, 1848-9, page 218. In this unsatisfactory state of the decisions on the subject, the Constitutional Convention of 1851 met for the purpose of framing a new Constitution, and presumably to amend and make certain that which had been found to be defective, or ambiguous in the old. In doing, or attempting to do this, the Convention omitted the words "as a candidate for," in the corresponding section to the one which had given rise to so much uncertainty in the old Conttitution. The contestant claims this was done, because the words were tautological, but the contestee, on the other hand, insists that the Convention intended thereby to make the prohibition apply only to qualification to hold a seat in the General Assembly, and thus finally settle the questions which had troubled the General Assembly for years.

This seems to be the only disputed points between the parties, as presented in their briefs.

The committee, after a through consideration of all the arguments urged by the contestant, is unable to agree with him, that these seemingly pertinent and important words were omited as meaningless by the Convention of 1851, especially in view of the fact that they had given rise to so many troublesome contests, under the old Constitution.

An examination of the character of other important charges incorporated into the Constitution of 1851, ought to aid very materially in determining the intention of the Convention in making the change in question.

By such examination it appears that changes and modifications have generally been introduced in the new Constitution with the idea of rendering it more definite and certain, and not to increase the number of ambiguities already existing. To illustrate: By Sec. 8, Art. 3, of the old Constitution, judges are disqualified from holding "any other office of profit or trust under the authority of this State, or the United States;" yet the Convention deemed it necesssary in the corresponding section (Sec. 14, Art. 4,) of the new Constitution to add to the above language the following words, to wit: "All votes for either of them, for any elective office, except a judicial office, under the authority of this State, given by the General Assembly, or the people, shall be void.”

Here the Convention uses language which the people can understand. Its meaning is fixed and certain, and it is suceptible of but one interpretation. The contestant, however, would insist that all this is useless verbiage, and that the Convention might more aptly have expressed its meaning by simply using the term "ineligible," and without even adding the words "as a candidate for." He does not attempt to explain why this brief form of expression is used in one section and not in the other.

In his brief the following reason is given for this particular omission, to-wit:

"The words as 'a candidate for' were stricken out as surplusage, and meaningless, by the committee on revision, Judge Ranney, chairman, but the substance was not changed."

If this be so, Judge Ranney and his revision committee must have neglected their duty, or entrusted to novices, the revision of other sections of the Constitution, notably the one above referred to in relation to the judiciary. The committee is unable to concur in contestant's belief that so eminent a jurist as Judge Ranney would make such a change without calling the attention of the Convention to it, but is willing to concede that the position taken by contestant is sustained by some very respectable authorities, and the meaning he gives to the term "ineligi ble" is not without support; yet the fact remains, that authors and law writers differ on the subject.

Recourse must, therefore, be had to judicial decisions.

The precise point, so far as the committee is advised, has never come before the Supreme Court of Ohio. In other States, the term "ineligible" has been heid to mean, "as well disqualification to hold an office, as disqualication to be elected to an office." State ex rel. Schuet v. Murry, 28 Wis., 99, Carson v. McPhertridge, 15 Ind., 327.

The committee is unanimous in the opinion, that the Convention of 1851 used the term in the former sense, and intended only to disqualify persons from holding certain other offices, while acting as members of the General Assembly.

The conclusion will, in the judgment of the committee, be found to be in harmony with a uniform current of decisions in both houses of the General Assembly, since the adoption of the present Constitution.

The only case cited by contestant under the constitution of 1851, is that of Lockheart v. Loveland, House Journal 1856, Index Appendix

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