1892 ] OF THE SENATE. 623

The provisions of this Act as to the use of official
ballots, as to nomination papers, and as to the duty
of the Secretary of State are mandatory, and cannot
lawfully be disregarded. No elections not held in
conformity with the requirements of that law can be
valid.

Chief Judge Alvey so decided in reference to a
local election in Hagerstown, and in the now famous
election cases recently decided by the Court of Ap-
peals of New York, the same doctrine was vigorously
maintained.

From what I have already said, you will perceive
that in my opinion, the proviso at the end of
section 13, of Article 3, of the Constitution, ap-
plies equally to the warrant for a new election,
whether such warrant be issued by the President of
the Senate during the session, or by the Governor
during the recess. There is no reason whatever for
applying this proviso to the Governor alone. It is a
proviso to the whole of the preceding part of the sec-
tion and not being in terms restricted in its applica-
tion to the case of an election ordered upon the war-
rant of the Governor, it must, according to a well es-
tablished rule of interpretation, be held to embrace
and cover as well the case of an election ordered to be
held upon the warrant of the President.

And the reasonableness and necessity of this view,
will be at once apparent we suppose the case of a
vacancy occurring less than ten days before the end of
the session. In the case, the President must order a
new election, ana. issue his warrant to the Sheriff, but
as the minimum notice prescribed by the Constitution
could not be given, the election of necessity must go
over until the next general election. Neither the
President nor the Governor, in my opinion, has any
duty to perform so far as the appointing of a day for
holding the election is concerned.

Their duty begins and ends with the issuing of the
warrant for the election. The time for holding it and the
regulations under which it is to be conducted are pre-
scribed by Statute, subject to the two paramount limi-
tations in section 13, of Article 3, of the Constitution,
viz: First, that not less than ten days notice must be
given in any event; and second, that if a session of