Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1854-03-31

agree, flfther, tnat ~ vacancies happen dur
ing the recess of the Legislative. nfid the Ex-
ecrisb Quilts to tiinkc appointments to tliem
until the "De&t mccriig ui the Legislature" he
cannot, thereafter, make appointments to "such
vacancies" even though the Legislature should
fail TO I'LL them; and the reasUn is clearly that
his authority ceases with tho conveniny Of the
Legislature. Tie secondary authority then
yields to the primary, and cannot be resumed,
even though the antecedent vacancy remain
fulfilled by the action of the Legislatiire.-
When the Legislature have had the opporu-
nifty to perform the dtity enloined upon them
BY the Constitution of eleCling Senator, cith-
er originally or to fill an existing vacancy; and
yet fail to perform that duty, there is no au-
ihority conferred upon the Executive 10 meet
the contingency by supplying the omission.-
And that 10 the full extent of the decisions IN
the case of Mr. Johns, of Delaware, in 1894,
and in the case of Mr.. Lanman, Of Connect
cut, in 1925, both of whose appointments were
overrlled BY the Senate. And slice those de-
clsions, am not aware that an Executive has
attempted 10 assunie the exercise Of the au-
thority in such instances. So III this case, If
no Executive appointment had been made be-
fore the meeting Of the Legislature, and the
Legislature having failed to All the vacancy
when ii had the opportunity, the vacancy must
have continued until filled by the subsequent
action of the Legislature or until 1t expired
by Its own Limitation. But non considt that an
Executive api ointment, previously and const.-
lutionally made, and still subslstng. shall cease
or be- in any manner affected by such failure of
action or omission of duty on the par, of the
Legislature. The Legislature, when in con-
dtion to act, VIC admit, has the exclusive luris-
dcton Of the election, and consequently SIS
pends the provisional power; but its operation
upon an appointment previously and duly made,
| respectfully submit depends Upon the trer-
tion and not upon the mere sristence of the sli-
perior power. Indeed, strictly speaking, the
| legislative power is continually existing pow
er, though its condition for exertlon is only oc-
casional. When that power is not exerted,
though in a capacity for exeriIon it is as mop
cra,lve upon the act Of the Executive as Its
passiveness when not in capacity for exer-
| ton.
Let us take another view Suppose the con-
cuding words of the clause "shall then I'LL
such vacancies" which, for the purposes of this
argument, we will regard as mandatory upon
the Legislature, had been omitted. That would
! have left the exclusive power with the Legs-
lature, where it now is to fill vacancies hap
pening during its sessions and with the Exc
cutivoto fill vacancies happening during the
recess aud his appointments in that case would
unquestonaby run to the end of the consitu-
/ tional term, without regard to an intervening
! Legislature How are his appointments any
| more or otherwise affected, when the mandate
| is in force, but not obeyed? Or, suppose the
direction to the Legislature to ''fill such vacan-
cies" had left it Discretionary with them to "fill
the vacancies" or not, as they should think best;
and in the exercise of that discretion, they
should deem i; best not to fill the vacancy in
particular case: Would that discretionary
| omission to act arrest a subslStins "temporary
appointment Or would it still continue p
Undoubtedly it would continue. How then,
tell me, does the neglect refusal of the Le-
glslature to execute mandatory order, any
more than would their omission to execute a
discretionary order, nfect the "temporary ap-
pointment 7" In either case, the very act is
wanting which is necessary to arrest and su-
persedc that appointment
Again 1t has been insisted in argument
that the "temporary appointment" ceases with
the authority which conferred it. According
to this theory, the appointment must cease at
the very opening, the commencement of the
next legislative session tor, beyond all dispute
or cavil, that is the limit of the Executive au.
thorlty. But this construction Is opposed TO
the uniform usage of the Senate for more than
forty years. From the time of the case of Mr.
Smith, of Maryland, in 1909, to the case of
Mr. Winthrop, of Massachusetts, in 1851, and
even to the case OF Mr.. Cathcart, Of Indiana,
at the last session of Congress, Senators hold
ing under Executive appointments have been
allowed, not merely without question of their
right but by the deliberate and expressed
Judgment of the Senate, TO retain their seats
here for weeks and for monthe after the com
mcncement fthc next Legislature, and conse-
quently for weeks and for months after the
specific authority which conferred the appoint
ments had ceased II Is enough to say thai
this theory is inconsistent with the long and
settled usage Of the Senate, Besides, if it be
insisted, as 1t not unGequen,ly has been, that
the words of Limitation apply both to the power
and to the appointment, you are then met with
this difficulty. The same identical words
which apply to the one apply also to the other
and 1t is clear, beyond all doubt or controversy
that the power ceases at the moment of the
meeting of the Legislature but, by pract
cal construction too long settled and acqules
ced in, established by precedcnts too often re-
peated, and too numerous now to treat 1t as al
open question, the appointment runs beyond
that period OF time, and consequently, beyond
the limit of the appointing power The same
words, in the same connection, cannot be ap
piled in restricted sense to the power, and n
a lautudinous sense to the appointment. The
theory furnishes but another exemplitication o
the urgumentum nd ubsurdum.
If the fact of tho superior authority, the
Legislature, coming into condition TO &C,
and to discharge its constitutional function,
and duties, ipso facto, suspends or annuls the
provisional appointment, as the minority o
your committee seem to think, then it mus
do 50 at the instant Of Its organization, for a
that moment 1t has assumed its full capacit,
to act. BY what rule of logic, of reason, OF
analogy, then, may the provisional appoint
ment hold until the superior authority il
itself suspended by adjournment of the Leg
islature and no longer This theory mus
fall, or your precedents are all wrong. 7,
maintain the one is to overrule the other.
invite to tho task the logical powers of an,
man, OF any Senator, to reconcile the settled
practice of the Senate with the theory tina
the tenure of the provisional appointment i,
limited to, and terminated by, the A." mex
meeting ot the Legislature"
Again, Mr.. President if the word meet
ing, as used in this connection, signifies tn,
opening or beginning of the session, as i
manitestly does, then whenever You have al
lowed senators under temporary appoint
ments " to hold their seats here after tn,
- next meeting Of the Legislature and un
I'll they were actually superseded by al
election by that Legislature, AS You hav,
uniformly done these forty years, you have 81
far forth given practical recognition of thu
construction contend for, that - temporary
appointments continue until superseded by
AN actual election; and thus, virtually, i
there be no election, that they continue t,
the end of the constitutional term. One o
these events must occur to terminate chem
say, then. that the expiration of the term
or the interposition of legislative election
i, the only Limitation upon an Executive ar
puiutmcnt cuns,itutionally made; and You
have not the authority of an adiudscd cas-,
upon your Journals adverse to this PROPOSE
ton. These " temporary appointments by
thur terms, and from their nature, are not
aud cannot be, and were never intended to be
subject to the law OF a fixed limitation. They
are analogous to the ordinary eases of pr,
fcmpore appointments which hold until su