Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1857-12-22

WE take pleasure in publishing the following lucid
and able communication relative to the appointment
of Lieutenant Governor. Its arguments are conclu.
sive
For the enquirer.
THE APPOINTMENT OF LIEUTENANT GO
VERNON.
Under this caption. the Wing" Of Friday pub
fishes al article purporEg to be from the pen OF an
able and distinguished member of the Reform Cor
ventiOn, presenting a of argument intended TO
demonstrate the iHcspacity under tha Constitution
first OF the General Assembly TO provide by law for
supplying vacancy occasionsd by the resignation OF
the Lieutenant Governor of the State-and conse.
quently, the ncapacity Of the Governor 10 fill such
vacancy by temporary appointment, in the absence
OF Legislative action on the subject.
The argument proceeds thus
let. That, the point involved, the Constitution
OF the United States and the Constitution of Virginia
are, and were Intended by the Reform Convention TO
be. identical.
3D. That in each case there is an entire omission TO
provide for the filling of vacancy occasioned by the
resignation of the Vice.President or the Lieutenant
Governor.
each case intends that the Office shall remain vacant
IN all instances for the that in tn0 specified
instances President pro tempore is empowered to
fulfil the functions of the office.
II requires no very minute investigation 10 refute
the first assumption upon which ,hi. reasoning is
tirey dependent-hat of an identity of constitution
al provisions. No such identity exists. 1t is true
that the Federal Constitution does omit 10 make di.
provision for filling vacancy occasoned by the
resignation Of the Vice PRECEDENT and that Congress
has implied from The constitutional provision author.
zing President pro tcmpore to act As presiding Off
of the Senate in the case OF the absence of the
Vice President, or his being called upon to assume
the Presidents functions, an analogous authorization
for similar arrangement in the case Of his resigns
ton. Ii is not necessary 10 enquire now into the
soundness or unsoundness OF such constructive ex-
tension OF powers expressyiaccorded. Ii s sufficient
to remember that this constructive extension OF pow
resored to in the absence of express consti.
tutonal provision sufficient 10 eupply the exgency
occasioned by the resignation of the Vice President.
1t cannot be- denied that had the Constitution of the
United States provided by express terms for any
mode OF election or appointment by which to h the
vacancy Congress could not have rsored to analogous
construction 10 cOntravene sn express constitutional
provision The construction resorted 10 by Congress
is indeed, possible, but il it is at all necessary con-
strucion, il is rendered necessary and unavoidable
only by the absence of express constitutional provi
sion. The powers granted by the Constitution of the
United States to be strictly construed and il is no
justification of the application of construction 10
prove that such construction ia possible or pho
sophical it must be made 10 appear that il is neces-
sary and unavoidable before it can receive govern.
mental sanction.
Now it so happens that the Constitution Of Virgi.
MIA does not exhibit the same deficiency of express
regulation which We find in the Constitution OF the
United States In article w. sect. 80 of the State
Constitution, is made the duty of The General As
sembIy to "prescribe by law" 1.-The manner of fHtng
vacancies in Office, in all cases not specially provided
for by this Constitution
And in article V, eect. 5, it is provided that the
Governor shall, "during the of the General
Assembly Jill, pro tempore. all vacancies for which
the Constitution and laws make no provision"
How can it be argued, then that there is an nsH-
perabe obligation TO resort TO unnecessary analo-
gous construction TO defeat the express provision OF
the Constitution which declares that vacancy shall
be filed! The Constitution of the State expressly
declares that every vacancy not expressly provided
ior by the CONSTITUTIONS shall be filled by law; no dis
erection s left to the General Assembly, except as to
the mere manner Of fHing the vacancy The Gen
eral Assembly ia not at liberty merely to 'ease ne
racaacy" II must be flIed, or the express provision
of the Constitution will be violated. For it cannot
be pretended that the Constitution contains any spe
ciai provision for vacancy occasloned by the re
signation of the Vice Presidsnt-or that general
implication can be made tantatnount to Pec'al Pr"
rision Thus, it s apparent, that The Constitution
makes il the unavoidable duty OF the General A-
semby to provide manner in which the office ul
Lieutenant Governor shall be FHcd during tile con
tinuauce of the unexpred term of office, rs the saline
organic instrument positively required that the Gov.
ernor should act as he has done IN making Tempo
rary appointment to EH IN. came office.
A word as to the expedient necessity OF the Cover
nor's action. And here find state of facts which
exhibits in its full extent the difference existing br
tween the Federal and the State Constitution. The aci
event of removal, DEATH resignation or inability
occurring simultaneously the both OF President
and icePreadent, an existing vacancy IN the oi
flee of Vice. President, at the time OF the removal
or &C. of the President and provides that, in such
case, the President of the Senate pro tempore shall
Immediately succeed the President Of the United
States
The Act of Assembly OF May 10Th, 1852, on the
other hand, contemplates no such contingency. IL
does not contemplate existing vacancy in the
of \ Df-(r
moyal, or, &c. of the Governor. 1t provides that
the Attorney General shall succeed to the office OF
Governor only after such office shall have devolved
on the Lieutenant Governor, and the latter shall
have ceased to exercise the functions OF the Guber
material office. Thus it is evident that the General
Assembly did not intend that vacancy occurring in
the office of Leutenant-G should be LETT uh'
filed.
Az the law now stands, there is no provision made
for the performance of the Governors duties should
the Governor die or resign during vacancy IN the
office OF Lieutenant Governor. In such case, the
Attorney General might eE ncceSsatate be permitted
to assume the functions of Governor under debate
able analogous extension OF the power conferred by
law; but the omission to provide specially and eI'
pressly for euch case clearly indicates the sense OF
the General Assembly to be in favor of Immediately
supplying vacancy in the office OF Lieutenant Go
vernon
Moreover, the case may occur again in which there
will be no Lieutenant Governor, no Attorney Gene.
rail- no President pro tempore OF the Senate, and the
death of the Governor, under such circumstances
might leave no authorized successor competent to call
a session of the Legislature.
Thus it is manifest that there was practical ne.
cessy as we'll as constitutional provision requiring
the appointment made by the Governor, and that the
same requiremens of law and expediency dictate the
election Of Lieutenant GOuernor in manner to be
prescribed by the General Assembly.
While the opinion of member OF the Reform
Convention is entitled to respect on a point OF
constitutional construction, yet the simple fact Of
an irreconcilabIe difference of opinion between two
members of the same Convention demonstrates that
the opinion of neither can be referred TO as critic
rion We must resort to logical and comprehen-
siye construction of the constitutional provisions
themselves and such construction leaves no doubt
to the propriety of the appointment made by the
Governor, or as to the duty Of the General Assembly
in the present instance. SPECTATOR.