Semi-weekly North-Carolina standard. [volume] (Raleigh, N.C.) 1852-1853, 1853-01-19

which Senators be appointed, so as to prevent
the Executives from filling vacancies caused by the
reguarexpiration of terms, it does not follow, when
neither them chooses to exercise that power, that
State shall continue without fall Senatorial repre-
sentaton, should term expire when the Legislature
is not in session. The Governors cannot anticipate
vacancy of any sort, because the single power con-
tered upon them is to fill vacancies when they have
happened during the recess of the Legislatures-the
Legislatures cannot account Of any inherent pow
in themselves but if at all, because the Constitu
ton has conferred upon them the power of fixing the
times at which they shall elect, and because it has
been acquiesced in have already said, that they
should anticipate known vacancies and fill them. ow
this would be if the question should be rased and
the right disputed, is not free from doubt But we
think it certain that when Legislature has made no
provision for filing vacancy caused by the exPira-
ton of term during the recess of the Legislature,
the Executive may and ought to fill it.
These views of this upon argument !;
but whichever side of the question the strength
of the argument may be, it is said that authority and
precedent against If authority and Prece lent
be opposed to sound reason, they ought be over
ruled But it is believed that neither authority nor
precedent is against u.s. but that this impression hav
ing been taken up, arguments have been invented to
support the supposed presidents.
The fret precedent rolled on Is that of Mr.. Lam
man, Senator from Connecticut, and we take the
statement Of the and the decision of the Senate
from note made, we understand, by Judge Story
himself in his commentaries on the Constitution,
VOL I'd, page 90 s. In the case of Mr.. Lanman, a
Senator from Connecticut, question occurred wheth-
State Executive could make appointment in
the of the State Legislature in anticipation of
the expiration of the term OF Office Of existing
Senator. 1t decided by the Senate that he could
not make such appointment The fac IS that Mr.
Lanman's term of service Senator expired on the
Sd of March, 1925. The President had convoked
the Senate on the 4th of March. Tho Governor of
Connecticut, in the of the Legislature (whose
session would be in May,) on the 9th of the preced
ing February appointed Mr.. Lanman Senator to sit
in the Senate after the third of March. The Senate
by vote of % to ID, decided that the appointment
could not legally be made until after the vacancy had
actually occurred" Here then Is out Of Al Senators
held that the Governor had, like the Legislature the
right of anticipating. In this the minority over
ruled by majority of only five. But 1t seems that
neither the ority the minority In those early
days thought of holding or at least putting their de-
cison upon the grounds that q" vacancy " and 'hap-
pen " had such peculiar meanings that the Governor
could not appoint at all; but distinctly upon the
ground that he could appoint if he had waited till
the vacancy occurred.
And Judge Story's own remarks upon the fea-
ture Of the Constitution under consideration,
worthy of notice. Story's commentaries on the
Constitution, chap 10, 725,page 2O3 vol. 2, he
says: "As vacancies might occur in the Senate dur
ingthe of the State Legislature, it became in
dispensable to provide for that exigency. According
", the same clause proceeds declare And if va
cancies, &c. 1t does not appear that any strong OBJ
lection urged in the Convention against this pro-
position; although it was not adopted without some
opposition. There seem to have been three
presented
either TO leave the vacancies untitled uRtil the meeting
of the State Legislature to allow the Legislature
to provide at their pleasure prosPectvey for the
currence, or to con6de a temporary appointment to
some select State functionary body. The latter
was deemed the most satisfactory and convenient
course. Confidence might justly be reposed in the
State Executive representing once the interests
and wishes of the State and enjoying all the proper
measures of knowledge and responsibility TO insure
a judcious appointment 1t will be observed
the very of the paragraph that Story
occur conveying the same idea az the word happen
in the Constitution. never occurred to him TO crit
icse the words - happen and - vacancy ner that
there in the Convention prudent disirust Of the
Executive of the States, that Lanman's ought
have been put upon other ground than that the
Governor had appointed before the happening of the
vacancy.
And what is still more to the point, Judge Story
evidently understands the Convention to have adop-
ted the third alternative of condng the temporary
appointment to select State functionary body.
towit: the Executive, opposition to leaving the
vacancies untitled until the meeting of the State Leg
sIatures, and to allowing them to provide at their
pleasure prospectivey for their And yet
it is contended in the face of the language of
The Constitution and the understanding Of its com.
nentators almost cotemporaneous with its formation,
that the adopted was TO allow the Legislatures
provide at their pleasure prosPectiyey for the
currence of these vacancies and that the Executives
should be excluded. Both Lanman's case, therefore,
and the above paragraph from Judge Story, al
thorties in favor.
The next authority cited is the of Mr. Sewer,
rom Arkansas. We have not at hand any staten snt
IF that case, but take it from the Speech of Mr..
Brooke in Senate the discussion of late
IF Dixon and Meriweather. According to that state
nen Mr.. Sewer received, and of course the case
cannot be cited authority for tn exclusion of
nybody.
But Mr.. Brooke informs that sc although the ex-
oiration of his Mr.. Seyers) term fixed by law,
IS in that of Lanman, yet from the peculiar crcum
stances of the the Legislature could not have
provided for the vacancy, and therefore the appoint
nent Of the Executive sustained. - What those
peculiar circumstances is not stated do
remember what they were. At any rate the case is
lot put upon the ground that there session of
he Legislature. And if it is to be taken that the
legislature did sit before the occurrence of the
ocular vacancy, and some circumstance prevented |
heir making election, this is direct authority for
,ur position. For there in case moral i'm
for the majority of both houses unite |
lpon any man. At any rate, the case is au-
hority against US.
The remaining case is the late of Dixon and
In December, 1851, MIR. Clay, the |
great American statesman resigned his seat in the
Senate to the Legislature of Kentucky, then in ses-
zion, take effect in September following and the.
Legislature proceeded forthwith to fill the vacancy
hat would then occur by the election Of Mr.. Dixon
The Legislature after adjourned. In June fol-
owing MIR. Clay died, leaving his Office vacant by
eath, and the Governor proceeded to fill that vacancy
" the appointment of Mr. Merweather. Mr.. Meri-
weather. took his and held it until the adjourn
nent Of Congress and, on the meeting OF Con-
,ress the first Monday of December last, the ques
ions came up whether either of these gentlemen,
cir - Id