Semi-weekly North-Carolina standard. [volume] (Raleigh, N.C.) 1852-1853, 1853-02-23
For the Standard.
On the pouoer Of the Governor to appoint 'Sen0-
tor OF the commencement of term.

tor at the commencement of q term.
The clause, to which alone reference is usually
made, in the argument on the question under consu.
Grafton, must be construed in connection win oS
portions of the Constitution. When brought '0se''
sr, they read as follows:
I" All legislative powers herein granted snati oe
vested in Congress of the United S'5teS, wiz"
shall consist of Senate and House OF Representa-
tives.'
s.The House of Representatives shall be composed
of members chosen every second year oy tne Pe"p'e
of the severaI States. When vacancies happen In
the renresentatou from any State the executive au-
Ihor,y thereof shall issue wris of election to fill such
vacancies. :,
posed of Senators from each State, chosen oy
the Legislature thereof for six gears"
I" Immediately after they shall be assembled IN
consequence of the first Election, they shall be divl-
ded as equally as may be, into three classes. Inc
seats of the Senators of the frat class shall be vacat-
ed the expiration of the second year. oil the
class the expiration of the fourth year, ana Oh "e
third class at the expiration OF the sixth year, 30
one third may be chosen every second year. anu u
vacancies happen by resignation otherwise, dur
ing the recess of the Legislature OF any STATE ue
Executive thereof may make temporary aPPcIn' ir
until the next meeting OF Inc Legislature ""iI" 0""
then fill such vacancies. :. :,
portions of the Constitution, speak OF the forming
organizing, and keeping full the Senate:
Two distinct things are clearly created: Flrst' the
office of Senator. Second, the seat of Senator. Inc
office is perpetual the is term OF the ONCE dch
may become vacant. The 05Tce was vacant on Inc
adoption of the Constitution, and before any cleo
ton. 1t never is, nor can be completely nheo iui
then, the appointment would be perpetual, WIN the
Office. The seat, however, may be completely hiIeu'
There may be, and often are, two species OF Vacan
cies one, vacancy in the office; this occurs when-
seat ends by ettiux OF time 'he o'heT
a vacancy in the term or seat: this may happen OF
occur by resignation, and never by e1lluA oil llhe'
because, them the seat is gone, -
When the Constitution declares that seat shall
- fbatf hall he a there
10, then, portion of it xpired 1t is all gone. IL
is absurd therefore to talk of vasancy in vacated
expired seat; but when the seat OIL term Is eXhaus
ed, we may, with proPrlety, speak oil vacancy IN
the office. So, that those who maintain, that the
Governor may fill seat, which has never had an
incumbent, maintain, that the Constitution, when IN
terpreed reads thus: 80 find vGcdncies shall happen
in the oce Of SenatOr in the seat Of Senator oy
resignation otherwise. during the recess Of the Leg
isLafure, the Executive shall fill them by temporary
appointments" 6rc.
Now, it is clearly absurd to speak Of a vacancy in
the office of Senator by resignation; for no one can
resign, who is not incumbent. 1t Is true, that
resignation put, by way Of instance; but, surely
it denotes, in strong manner, what sort CT vacancy
intended.
Another view NAV be taken of this section of the
Constitution, which will shed light on its meaning
The Constitution vacates seats. first, at the end OF
two years next at the end of four years and Then,
the end of six years. These vacations, being OF
prescribed Constitut ional TERMS fixed and made
certain by the ef1ux of measured time. But the fra
of the Constitution knew, that there might be.
and often would be, other vacancies happening, not
by efflux of time, and therefore not certain IN the
period of their occurrence, and OF course necessarily
remaining open in the absence Of the elective faculty
AS to these which do not al stated and known
time, if they should happen when the Legislature
cannot fill them, the Executive may do SO, till the
Legislature have opportunity TO fill them. So, that
here be two classes of vacancies contemplated: one
created by the Constitution the other, not created,
but happening or occurring, in some other mode as
by resignation otherwise. AS TO these, 1t cannot
be known at what time they will commence; and,
therefore, the Executive may fill them, during the
of the Legislature, " until The nert meeting Of
the Legislature, Which shall then fill such racancies
Now, l enquire, whether, upon meeting of the
ensuing Legislature, such Executive appointment be
not at end9 So say the words CT the Constitution
If this be SO, and the Legislature will not fill the
vacancy, may the Executive make another temporary
appointments; and So totes quotes, until, net, the
"n1eeting of the Legislature, but, until that body
shall till it.
Here is another vacancy, and it has not happened
by 'resignatOn,'' but it has occurred " otherWise
The Constitution says, the Legislature - shall then
fill such vacancy." The argument Of the advocates
of the Executive authority necessarily afrms both
the power and the duty of the Executive to fill this
second h1ppening vacancy; yet hey will hardly
maintain it. Because, first, the Executive appoint.
ment is at an end; and because secondly, the Con-
stitution says, that " the Legislature shall Msn fHH
And, of course, no other power
Here then, is a of Legislative omission, de-
which the Executive may not fill. This concession
ends the whole argument for power in the Executive
TO fill an original seat in the Senate For the Consti-
tuition is equally imperative, that the Legislature shall
elect Senator to begin the service of term as it is
to supersede by legislative election the temporary
appointment Of the Executive in the middle of the
term. The omission fill is the same the nd ate
is the same the casually is the same.
1t s argued by the advocates of the Executive pow
er, that, as the Constitution has ordained in the most
emphatic language, that the Senate shall be compos-
ed OF ttcO Senators from each Sate' it must be SO
composed and hence they conclude, that if the leg
lsature, through negligence, party spirit, any other
cause, will not elect to the beginning of term the
Executive must appoint. Now, if this be SO, and |
still he cannot make second temporary appointment
when the Legislature shall have been unmindfu of
lis duty, because the Constitution has denied to him
the power and irrevocably fixed in the LEGISLATURE
would enquire, why, in this instance, has the Con-
sHtuton, In such emphatic language, denied him the
Power Is 1t out o! Difference to the legislative dig
nifty If so, why shonld this Difference have been |
conceded to legislature, which refuses TO fill the
part OF term, and be withheld from that body, when
refuses TO fill tchOe term! Especially as the ap-
Polntmen In both cases, by the Executive, is but
until the Legislature may meet!
Ii may be assumed, then, certain, that the pow
eT was not given to the Executive to commence
term out of any disrust of the Legislatures ese the
dlstrust had been extended, to second
temporary appointment. And it irreestibly follows
from the certainty of commencement in the psriod.
cal terms, that if it be not giveI to the Executive
because of distrust in the Legislature, IS not iven
at all.
FOR 1t 10 manifest, that the Legislature is the fav-
orte body to make the selection. Indeed, it should
nave been So for the Senator created represent