884          JOURNAL OF PROCEEDINGS [March 9,

notified by Mr. George Freaner, 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 was 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 powers and rights of a delegate. So much of the Consti-
tution as is pertinent to this matter is in these words: "No
person shall be eligible, an a senator or delegate, who at the
time of his election, is not a citizen of the United States, and
who has not resided at least three years next preceding the day
of his election in this State."

The declaration is free from all ambiguity. Mr. Freaner
states that he had not the residence of "three years next pre-
ceding his election," and by his statement establishes his con-
stitutional disqualification at that time. The Constitution is
the supreme law of this State, and of course would override
any act of Assembly in conflict with it, if there were any such;
but there is none. The 25th section of the Code adopted at
this session has no application to the case; it refers, exclu-
sively, to cases of ' contested "elections, in which class that
of Mr. Freaner is not embraced; no one contests his election.
Your committee arc, therefore, of opinion, that Mr. Freaner
was not at the time he was voted for as a delegate, possessed
of the qualifications required by the Constitution.

The only question involved in the reference is: Was the
person receiving, 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 laws of the State contemplate the substitution of one
person for another only when there is "a contest." Your
committee are of opinion, that the Speaker of the House
should issue his warrant for the holding of an election to fill
the vacancy now 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, which he, as is likely was the
case with most, if not all the members of the House, had over-
looked or forgotten during their candidacy, he immediately noti-
fied the House of his relations to it, 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 which he discharged the duties of a delegate
whilst he acted in that capacity.