'620 JOURNAL OF PROCEEDINGS [Mar. 9,

If they shall adopt the report of the majority of the
Committee on Elections, and finally decide that Mr.
Talbott was duly and lawfully elected, then, upon the
adoption of said report and the dismissal of Dr. Bird's
contest, a vacancy will necessarily be determined to
exist, for the death pending the contest of the gentle-
man thus decided to hare been entitled to the seat,
leaves the seat vacant, and requires an election by
the people to fill the vacancy thus arising.

The same result will happen, it the Senate, upon a
review of the whole case, instead of adopting the re-
port of the majority of the committee, shall determine
that neither the contestant. Dr. Bird, nor the con-
testee, Mr. Talbott, was duly elected.

And should the Senate reach either of these two sug-
gested conclusions, to wit: 1st. That Mr. Talbott was
duly elected; or 2nd. That there was no valid election
at all, a warrant for a new election must be issued.

But, until the contest is disposed of and the dis-
puted question of title to the seat settled, it cannot be
known that Dr. Bird may not be declared to have
been duly elected, the content may be decided in his
favor, and, of course, in this event, there will be no
vacancy and consequently no occasion for the issuing
by the President of the Senate of a warrant for a new

election.

It is manifest, therefore, that until there shall be a
final decision by the Senate that a vacancy in fact
exists, the President has no power to assume that one

does exist, and upon such assumption issue his warrant
for an election.

In fact, his right and duty to issue such warrant

depend entirely upon the existence of a conceded or
an adjudicated vacancy.

As to the Second and Third Questions.

As soon as the pending contest shall be finally
determined by the Senate, and a vacancy decided to
exist, it will be the duty of the President to issue his
warrant to the Sheriff of Calvert county, notifying
him of the existence of said vacancy and authorizing
him to appoint a day for holding an election for the
purpose of filling it. As I interpret section 13, of
Article 3, of the Constitution, it is no part of the duty