Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1865-11-23
RUTLAND HERALD.
MnEspAY. NOVEMBER %, 1866.
The senatorial Vacancy.

Burlington had published a communi-
oaaion in the Burlington Times TO show
that the Executive had not the power
under the constitution to I'LL the exist.
ing vacancy in the U. s. Senate. We
now have.the pleasure of presenting an
aygsnent'on the other side Of the ques.
tlon by member of the Rutland bar
We bespeak for the communie& ton a
careful reading:
Bditoy Rttlaaa HeralS'--A few days ago
the Burlington Times contained an az
ticle upon the question of the constitu.
tlonal power of the Governor to I'LL by
appointment the vacancy in the Senate
oecasioned by the death Of the Hon, ia
cob Collamer, written as stated by the
sA'tor, "by one oft.~ 49,. 49,. Affection,
~ p, sAIs 9vsV vvnsUIs"Vion-
NH ors Of Burlington" in which IL
ismaintained that because Judge coma
mer's death occurred in the evening pre-
yious to the morning Of the final adj
purnment of the Legislature, Gov. Dill
bingham has no power under the const-
tuition to I'LL the vacancy thereby occa-
stoned by temporary appointment. As 1T
is q question of considerable practical
importance to this State whether a call
ed session of the Legislature is the only
mode of proceeding for filling the va
In
others, no doubt, been led to investigate
the subject somewhat, and though the
&ticle in the Times, on account both of
the source from which it emanates, and
the ability and cogency of the reasoning
with which the views Of its author are
maintained is entitled to great consid-
eration and respect, have not been able
to bring my mind to the same result
The general legislative authority TO
appoint Senators is contained in the fol-
lpwing clause of the constitution:
nThe Senate of the United States
shall be composed of two Senators from
each state, chosen by the Legislature
thereof for six years, and each Senator
shall have one vote"
The authority to supply vacancy is
conferred by the same clause, in these
words:
"And if vacancies happen by resigna-
hon or otherwise, during the recess Of tho
xzsSlatsye Of any State, the executive
thereof may make temporary appoint
40 nnxyt firp IF 7
elature, which shall then fill said va
sanCies." Ul. ta,. .-.-.
The argument of the writer of the ar
ticle alluded to Is based wholly upon
The strict grammatical construction and
The literal sense of the words of this
clause, without giving any place at all
to the office of construction q rule
which, if generally adopted, would mar
row the Interpretation Of contracts and
constitutions to mere pathological and
grammatical dlsquisitions, and, as SAID
hy an ancient lawyer Of great eminence
and learning, would be to "uphold the
naper at one, instead of the four cor
Asrs." -~
An adherence to the letter in the con-
struction Of the clause would lead to
@ very grave consequences.
Gil l. By the letter of the provision, it is
g only when paea,leies" occur that APP
pointments may be made to fill "such
ySsaneies, no cypress provision being made
d 70 fill ga vacancy" in the singular. 1t
is true that by the application of the
Fule that the greater contains the less,
IL is held that single vacancy is pro-
vided for, but this arises by implication
and inference, and not by express words.
I allude to it only to show the absurd
Hy of adhering to the mere letter, in
giving an Interpretation to the clause.
Q. BY the letter Of the clause, the
power of the Legislature to fill vacan.
ey attaches only when the vacancy shall
occur during the recess, and at the
next meeting" and attaches only by i'm.
plication when the vacancy occurs dur
ing the session. By recurring to the
clause, it will be seen that no provision
Is made for filling vacancies except such
as happen during "the recess of the Leg
stature" And if the letter were to bt
adhered to, a vacancy happening during
me session, being easHS O0'Issas, could no
be filed at all, either by the Legislature
or the Executive, And yet vacancies
occurring during the session have offer
been filled by the Legislature, and nevel
disputed, not because Of any specific
grant in the constitution, but because
the power is derived by implication K
carry out the apparent intent of tn
trainers Of the constitution that all VI
sancies should be filed.
9. Another instance in which tn
power to appoint a Senator arises b.
implication, and not by express grant
Is illustrated in the case of Mr.. Sevie
OF Arkansas, who was one of her frs
Senators, and whose term under tn
Eoyision of the constitution requiring
q classification of Senators, was Gu
down by lot from six to two years. Hi