Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1865-11-23

ment OF the Executive OF this State,
then by the letter of the language, the
right of the appointee TO hold his seat
would expire by constitutional limita.
ton, upon the meeting of the Legislature
And yet the committee TO whom was
referred the claim of Senator Phelps
cited over forty Instances in which the
Senate had permitted Senator'S appoint,
ed by the Executives OF their respective
| States, to hold their seats dtt'ng the srs-
so,f OF the Legislature next following
their appointment, or until successor
was dun chosen and appeared in the
Senate With his credentials. Thus the
word ,tp,eo, '"e," as applied to the right
~ ~. $50. hold his seat, is con-
OF the appointee to = 20 wee, %.
strued in the large sens, $50 ~,
si.op.-in other words the end L. ~ ~ ~ y.
the beginning of the session,-in orr az, W
uphold the right Of representa'''A'
But as applied to the right Of the Exec
utive to appoint, the same word is con-
strued in its most narrow and limited
sense, so as to restrict the right to the
commencement Of the session.
Now, these are cases in which the let
ter of the constitution has been en-
larged, and powers have been implied,
in order to efiectuate the evident inten-
ton of the trainers of the instrument.
And upon the ground well known to
every lawyer that the rules Of grammar
are not necessarily the rules of law.
There are many legal rules of interpre-
tation which override the mere letter,
as, that the instrument is to be con-
strued in regard to the subject matter;
2 that the whole is to be considered in
determining the meaning OF any of its
parts 8 that it is to be construed so
as to support rather than defeat the
meaning Of the trainers, &c. And in the
application Of these rules great liberal
ity is INDUCED in constituting the mean
ing of words, often permitting specific
words to include the generic, thus en-
bracing things collateral rather than
identical merely.
What has been said thus far in the
discussion will hardly be attempted to
be controverted. Adopting then, these
con illusions and principles Of interpre-
tation as guide, I proceed to consider
briefly the question Did the vacancy
in the Senate, occasioned by the death
of Judge Collamer, ten hours previous
to the final adjournment Of the Legisla-
ture, and not made known to that body
while in session, happen during the re-
cess" within the resi- intent and mean
ing of the trainers Of the Constitution
as either expressed or fairly implied by
the language used
1t is obvious that it was intended by
uue cluuse III question TO secure W Une
States at oil times a full and equal rep
resentation, and therefore it should be
literally construed if necessary to COM
pass and accomplish the intent. The pri-
mary power Of appointment is lodged in
the Legislature. Buta secondary power
of making temporary appointments is
given to the Executive to provide for such
vacancies as could not have been foreseen
by the Legislature, and IN the filing Of
Vhish it has had NO opportunity to act. Then,
the legal inquiry apprehend to be, not
merely whether the vacancy happened
while the Legislature possessed the po-
tential capacity to elect a successor
but also whether it came to the knowl.
edge of the Legislature so as to enable
it to assume and exercise jurisdiction
over the matter Of an appointment
while it possessed the potential capacity
to do 50. So far as any legal actor
could be practically taken by the Legis
lature, and in the legal purview and in
tendment of the word, the vacancy die
"happen "-.faR oat,-during the recess
And this is but fixing the time of the
event, not in its primary sense, as {
point indicated upon the dial plate, bu
with reference to its legal relation to tht
power Of the Legislature to perform 81
act which, it is provided in the clause
shall be done in consequence Of tn
event. This is sensible ana practica
BILE rule, and obviates the objection made
by the writer in the Times, that if the Gov
ernor can appoint in case the vacancy
occurs ten hours before the final adjourn
ment, then he may if it occurs ten day
before, or in fact at any time during tn
session. Besides, the argument ad al
suraam is equally strong when reversed
Suppose the vacancy happens ten min
> utes, or ten seconds before the adjourn
ment, or suppose both to happen at tn
ga me moment, will it be said that prac
tically and in the legal purview the va
oaney did not happen in the recess
The difficulty arising out of this refine
ment is solved by the enquiry did th
Legislature have an opportunity to I'll
the vacancy Ifnot, then the power o
OF the Governor to appoint attaches.
But If it be still insisted that no plac