The daily union., 1852-12-07
com,aunicaled.
senator elect from KENTUCKY

senator elect from Kentucky.
The constitutional rgh, Of this gentleman 10 take his
seat in the Senate lis approaching session will
sary give rise to interesting point OF constitutional
law, touching the true organization OF the Senate, and
worthy OF the grayest consideration of that distinguished
and coordinate branch of national slaure The
principle involved in Il, and the precedent 10 be estab
shed by its settlement, invest It's examination with
profound interest and occasion little speculation and
discussion with the public at large 10 lis nal adjust
ment pervades the bosom OF ALL because all in
erested in the true Interpretation OF the organic law OF
the republic. which should be held sacred and nvioabe
by all and neither of the conlesng claimants can in
spt OF chiva!rc generosity relinqulsh the to the
other He alone can occupy TO whom the constitution
awards il, according 10 its meaning expounded by
the Senate.
The circumstances of this controversy or difficulty are
few, and briefly iold Mr. Clay senator from Kentucky,
whilst in his seat and during the last session of the
legislature of his State, resigned his sea, in the Senate
the resignation to take effect the first OF September
last and the legislature thereupon proceeded TO elect Mr.
Archibald Dixon 10 fill the unexpred term OF Mr.. Clay
commencing on that day when the resignation would
create vacancy in the Senate. T he legislature subse-
quenuy adjourned. Mr.. Clay died after that adjourn
men but before the arrival Of the first OF September
when his resignation TO take effect, and Governor
Powell appointed Mr.. David Meriwelher 10 fill the va
cancy occasoned by Mr. Cays death, and expressly lin
tied The duration OF his appointment TO the first OF Sep
tember. the presumption that Mr. Dxons term OF ser
vice would then constituonally commence.
II must be recoleced, in considering these circumstances
that the resignation OF Mr. Clay prospective in its
operaoA-occasioned actual vacancy at the time of
sending it to the legislature and was intended to occasion
none until the first OF September succeeding IT, Until
the arrival Of that day the vacancy contemplated and in
tended by Mr.. Clay stood suspended or remained in
feri, having actual existence matter of fact II
was thing merely in contemplation; and prior 10 the
of first nj he
lucky had adjourned. On the or happening
of the vacancy arising from his act of resignationin
other words, the first of September when The vacancy
took eeca Of the legislature actually existed
The resignation of Mr.. Clay but an act of that day.
With this understanding Of the facts, let us see what
remedy the constitution has provided 10 meet vacancy
in the Senate caused by resignation or otherwise.
The constitution, first article and third section in treat
ing of the organization, powers and renewal of the Sen
ate holds the following clear and distinct language a.
vacancies happen by resignation otherwise, during the
of the legislature ofany State, the executive thereof
may make temporary appointments until The meeting
of The legislature, which shall then fill such vacancies
According to the true meaning and Interpretation OF this
clause, the vacancy happen during the Of the
Legislature the State executive is authorized to h it by
temporary appointment, which is 10 last until the next
meeting of the egsature and if the vacancy happen
during the session Of the legislature they authorized
TO fill it. Whenever it occurs, whether in the recess or
in the session of the legislature it is met by an ample
provision, leaving only to ascertain tohen the vacancy
has happened TO determine which OF the departments
of the State government is TO fill it,
Itis important al this point OF the investigation to in
9uire what is meant by the expression, " if vacancy
happen by resignation" Does il mean vacancy in fact
or prospective, potential, constructive vacancy Pro-
spective vacancies, the ordinary acceptaon of the
term, OF two descriptions. One is vacancy which
occurs in,ermediaely in senatorial tenn Of service be-
tween IFS commencement and termination, and cannot be
filled by the legislature in anticipation, without an en-
croachment upon the constitutional authority OF the
State executive fill all vacancies which occur or may
occur, fact, during the OF the legislature Such
an anticipation, in principle, could be made compre
bend all vacancies, whenever and however occurring
which would efecually annihllate all executive ap-
ponments. Bot inertegnums between senatorial terms
OF service not within the purview and operation OF
this clause such vacancy cannot with any propreiy
of speech, be said 10 happen by resignation when the
term OF service has not been hled. The legislature may
provide prospecivey for an inerregnum, possessing
they do the sole power to fill it, without interference
or collision with another department in the exercise of
its constitutional powers. But not 10 the other
class OF vacancies II the legislature exercise the power
10 anticipate and oil prospective vacancies 10 the Senate
OF the first description, such may in fact dur
ing their recess the authority OF the State executive to
make temporary appointments IN such cases is
ry and completely annulled-collslon al once occurs
making temporary appointments, instead OF depending on
the contingency OF vacancy happening in The Senate as
provided by the constitution, s made TO depend on the
forbegonee OF the legislature 10 anticipate the occur.
renee approach, existence OF such vacancy. Such
rule OF Interpretation cannot be counienanced The .
reconeeable antagonism and conflict which practically
introduces in reference 10 vacancies between two depa.
mens OF The State government, intended to act in har-
mony, and in The alternative only, acting where the
other could no act conveniently, is an unanswerabe
Argument against IT,
But however satisfactory or convincing this view OF
the subject may appear general reasoning, it is not
without high authority 10 strengthen and support it.
Judge Story, in his Commentaries the Constitution,
uses the following language "As vacancies night occur
in the Senate during the Of the State legislature
II became indispensable provide for that exgency Ac-
cordngy the clause proceeds 10 declare, And if
vacancies happen, by resignation otherwise, during The
recess Of the legislature the executive thereof may make
temporary appointments until the next meeting of the
Legislature which shall then I'll such vacancies It does
not appear that any strong objection urged against
this proposition, although it not adopted without
some opposition There seem 10 have been three
presented for the consideration OF The convention either
to leave the vacancies unhled until the meeting Of
the State legislature 10 iow The State legislatures 10
prouids al their pleasure properely for the Occurrence
or TO conhde a temporary appointment TO select
State funeonay or body The latter was deemed the
most satisfactory and convenient course" And in
note this paragraph he observes ain the OF Mr.
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