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ABSTRACT OF VOTES POLLED FOR SECRETARY OF STATE
AT THE OCTOBER ELECTION, 1880.
ABSTRACT OF VOTES CAST FOR SECRETARY OF STATE—Continued.
OLTIOVJ . .............................
REPORT OF THE COMMITTEE ON PRIVILEGES AND
Mr. Hollingsworth submitted the following report:
The standing committte on Privileges and Elections, to whom was re. ferred 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 suid 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 Com. mon Pleas Court within and for the said county of Wyandot, which resig. nation 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.”
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