1892. ] OF THE SENATE. 619

death during the session of the Senate of a member
thereof, to fix the time of such election at the next
ensuing election for Delegates and Senators?

3. Would such an election as is referred to in the
preceding inquiries be held under the provisions of
the Act of 1890, chapter 538, said Act being in force in
the county where the election was to be held, and if
so, what length of time would candidates be required
before said election under said act to tile with the
Supervisors of Election for the county certificates of
nomination and nomination papers, and are the provi-
sions of said Act as to the time of filing said certifi-
cates and papers mandatory, and could a legal elec-
tion be held under such a warrant of the Presi lent of
the Senate without a compliance with this provision
of said act? Does the proviso at the close of section
13 of Article 3 of the Constitution limit and quality
the time at which the election is to be held under the
warrant of the President of the Senate, as well as the
time at which the election is to be held under the
warrant of the Governor, referred to in said section.
As to the first of these Questions:

It seems quite clear to me that until the Senate has
finally disposed of the contest and thereby determined
whether a vacancy exists or not, it is not within the
power of the President to issue his warrant for a new
election.

In the contest in question, Dr. Samuel R. Bird
claims that he was in truth and in fact elected Sena-
tor from Calvert county on the 4th of November last,
and his petition prays that the seat shall be awarded
to him. And that his competitor shall be decided not
to have been really and truly elected. In such a con-
test, these conclusions may be reached by the Senate:
1st. That the late Mr. Talbott was elected; or 2nd.
That Dr. Bird's contention is well founded, and that
he was elected; or 3rd. That there was no valid elec-
tion at all.

The death of Mr. Talbott does not settle the contro-
versy or relieve the Senate of its duty and responsi-
bility to decide the contest. Nor does it ipso facto
create a vacancy. Before a vacancy can legally be
ascertained to exist, it will be necessary for the Senate
to determine either that Mr. Talbott was elected, or
that there was no election whatever.