The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1854-03-29

sion Of duty on the part ofthc Legislature.
The Legislature. when in condition to
act, we admit has the exclusive jurisdic.
ton Of the election, and consequently
susponds the provisional power but its
f operation upon an appointment previous
Iy aud duly made, respectfully submit,
depends upon the eIc1tion ana not upon
the mere existence of the superior power.
Indeed, strictly speaking the Legislative
power is continually existing power,
though It's condition for exertlon is only
occasional. When that power is not cx-
crted, though in a capacity for cxeriion,
5 it is as imperative upon the act Of tho
Executive as its passiveness when not in
a capacity for txortion
q Let us take another view. Suppose
5 the concluding words Of the clause
] shall then fill such vacancies" which,
ior the purposes Of this argument, We
will regard as mandatory upon tho Leg
g islature, had been omitted. That
0 would have left the exclusive power with
- the Legislature, where it now is, TO fill
d vacancies happening during its sessions;
- and with the Executive to fill vacancies
happening during the recess and his ap-
pontments in that case would unques-
tlonably run to the end Of the constitu-
P, tional term. without regard to an inter
ycniug Legislature. How are his np-
b pointm9nts any more or otherwise al
tectcd. when the mandate is in force, bus
Il not obcyed Or, suppose the direction
It to the Legislature to ell such vacan-
r cies had left it discretionary with them
| Lao,
Q should think best aud in the exercise
Of that discretion, they should deem it
= best not to fill the vacancy in particular
: casol Would that discretionary omis-
- sion to act arrest subssting tempo
rary appointment ~ Or would it still
Is continue Undoubtedly it would con-
p tinuc. How then. tell Inc. does the neg
) oct or refusal Of tho Legislature 10 eI-
: ecutc a mandatory order, any more than
{ would thsir omission to execute dis
&c cretonary order, affect tho temporary
e appointment ?" la either case, the very
act is wanting which is necessary to ar
1t rest and supersede that appointment.
Of Again 1t has been insisted in argu-
r mcnt that the " temporary appointment
T, ceases with the authority which CON-
t. ferred it. According to this theory, the
Is appointment must cease at the very
t. opening, the commencement Of the next
n legsla,ii ie session; for beyond all dis
u putc or cavil, that is the limit Of the
lc Executive authority. But this con-
s. strnction il onuosed to the uniform usage
O. of the Sona,e for mora than forty wears
f From tho time of tho easc Of Mr. Smith.
=. of Norvland in 1909 TO the case of Mr.
C. Winthron Of Il,ss,chusett, in 1851
ID and even TO the casa of Mr.. Catbcart. Of
n. Indiana =. the last session Of Congress.
-" Senators boldin, under Executive an.
it nointment. havs koan allowed not mere
is IL witboui question Of their right bu.
nv by ,Lo dslibor,to and .,nrcssc1 ;ndc.
~ mont NJ thc senate 10 retain their seats
he here for wcel;s and f.r month, aftor tho
to commencement Of the NEXT Leplslaturo
ry and consequently for weeks and for
on months after the epeeise authority which
m. conferred the snpoiutinants had ceased
&c. II is euourh to say that this theory i,
i, inconsistent with the long and settled
n. nsooe of the Senate Bosidea if il be
rs Insisted as Il not nnf,e,nentlv has beon
he th,t the words Of limitation snplv both
. to the nowey and ~ tho annaintment
r. Won ara then mat with this difficulty
ry The same identical words which anpiy
es 10 the ono anoly also TO the other and
,n il is clear beyond all doub, or contro.
m versv thai tha mower ceases a. the mo.
he meut Of the meeting of the legislature;
IN. but bv n nractical Construction too lone
bv settled and acouiesced in. established by
to procedents too ofton reneated and too
"A nnmcr,rs NOW to treat it a, an oncn
il question. tLe snnointment run, bevond
ID hat period Of time and conss,ucntly be.
of youd tho limit of the amounting nower.
or The same word, in the same connection.
iu cannot be applied in restricted sense to
in, the power, aud in latitudinous sense to
he the appointment The theory furnishes but
re another excmplfcation of the arsun,cn.
a. tum ad absurduw
is. If the fact of the superior authority,
rv The Legislature. coming into condition
sa to act aud to discharge its constitutional
lc. functions and duties ,pso titcto, suspends
OF or annuls the provisional appointment, as
is. the minority Of your committee seem to
nd think, then it must do SO at the instant
m. of its organzation for at that moment
ch it has assumed its full capacity to act.
en By what rule of logic Of reason. or anal.
70 ogy. then, may the provisional appoint.
- mcnt hold until the superior authority is
,s itself suspended by adjournment of the
. Legislature, and no longcrl This theo.
NJ, ry must fall, or your preccdcnts are all