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864 J'OUHNAL OF PROCEEDINGS [March 9,
notified by Mr. George Frcanor, one of them, that he had not been three years immediately preceding his election a resident, of this State. If he had not been, then, in the opinion of your committee, under the 9th section of the third article of the Constitution, he Avas ineligible to a seat as a delegate, when he was voted for as such, and as a consequence, not having the legal qualification, he could not be endowed with the pOAvers and rights of a delegate. So much of the Constitution as is pertinent to this matter is in these Avords : " No person shall be eligible, n.s a senator or delegate, Avho at 'the lime of his election, is not a citizen of the United States, and Avho has not rexidrd&i leaxl three yepr* next preceding tie day of iiis election in //)?'••? Htalc."
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The declaration is free from all ambiguity. Mr. Freaner states that he had not the residence of "three years next preceding his election," and by his statement establishes his constitutional disqualification at that time. The Constitution is the supreme laAv of this State, and of course Avould OArerride any act of Assembly in conflict Avith it, if there Avcre any such; but there is none. The 25th section of the Code adopted at this session has no application to the case; it refers, exclusively, to cases of ( contested "elections, in which class that of Mr. Freaner is not embraced ; noj.one contests his election. Your committee are, therefore, of opinion, that Mr. Freaner was not at the time he Avas Aroted for as a delegate, possessed of the qualifications required by the Constitution.
The only question iiwolvcd in the reference is: Was the person receiA'ing, at the same time, the next highest number of votes, if qualified in all other particulars, duly elected a delegate ? Your committee think not. Both, the constitution and the laAvs of the State contemplate the substitution of one person for another only Avhen there is ((a contest," Your committee arc of opinion, that the Speaker of the House should issue his Avarrant for the holding of an election to fill the vacancy IIOAV existing in the number of the delegation from Washington county.
Your committee deem it to be due to Mr. Freaner to say, that so soon as his attention was called to the clause in the Constitution affecting his case, Avhich he, as is likely Avas the case Avith most, if not all the members of the House, had overlooked or forgotten during their candidacy, he immediately notified the Houseof his relations to k, and tendered his resignation of the seat occupied by him. thus giving testimony of his ready obedience to law, comporting well with the industry, fairness and ability with Avhich he discharged the duties of a delegate whilst he acted in that capacity.
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