Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-10
ARPOINTING UNITED STATES
n SENATARS.

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The Columbus (Ga.) Enquirer says;
Some of the papers are discussing the
question whether the Governor has the
power to appoint a successor TO DR.. Mil
Ter, TO hold seat inthe United States
Senate until the Legislature can meet and
make an election. The Nashville UNION
AND AMERICAN Correctly, we think)
maintains that DR.. Miller did not resign,
and as histsrpi ended on the4th Of March,
the Governor cannot make an appoint
ment; while the Atlanta Constitution,
(recording the views Eof the Savannah
Republican, quotes the Constitution of
the United States to show that if 'vacan-
cies happen, by resignation or otherwise,
during the recess of the Legislature of any
State, the Executive thereof may make
temporary appointments until the next
meeting of the Legislature, which shall
then ill such vacancies -
'The practical question whether there
is Vacancy is, in our Judgment, the
pivot upon which the controversy must
turn. There is avacancy, the Governor
is empowered temporarily to fill it. But
we do not understandable word 'vacancy''
rs used in the constitution, in its applica-
ton to Offices, 10 cover and bridge the in
| terval between two distinct terms of
office. Webster gives as one of the mean
ings of the word, "a chasm, a VOID space
between bodies or objects'-not 9 con-
tinuation of, or a connecting link between
them. Again, he defines vacancy as
IAN Office or post which is destitute of al
incumbent but this evidently means an
office which has had an incumbent for
definite term, but is now vacant. The
vacancy could not be said 10 happen if
it occurred by the expiration Of term of
Office. That is an event contemplated aud
to be provided for. If the Legislature
fails to make an election for new term,
the Governor can hardly have power TO
appoint Senator TO commence the term.
We do not know of single case in which
the Governor of State has thus supplied
an omission by its Legislature to elect a
Senator to Congress for a new term, and
we know that there have been instances
in which States have gone partially un-
represented in the Senate, because of the
failure Of their Legislature to elect in
time
Our Columbus contemporary takes the
correct view of this question. In con-
temptation of law, the Senate is per-
petual body, and the Legislatures of the
| several States were expected to elect their
Senators before the expiration of the
term of a serving Senator. Bat the Leg
islatures did not always do this, and there
were very often vacancies. 1t was the
custom of the Legislature in this Sta'e to
elect in the fall of the year the successor
to the Senator whose term had expired
the previous March, and Tennessee was
without representation for year or two
in the twenty seventh or twenty eighth
Congress, because the Legislature OF
IlS4l-2 failed TO elect-one term having
expired March 4, 1S4l, and the other be.
coming vacant by the death of Hon.
Felix Grundy, Dec. 10, 1910. 1t was to
prevent vacancies occurring in this way
that The act of July 25, 1860, was
passed, requiring "that the Legislature OF
each State which shall be chosen next
preceding the expiration of the term fol
which any Senator was elected TO repre-.
sent such State in Congress, shall, on the
secord Tuesday after the meeting and or.
ga1ization thereof, proceed to elect 6
Senator in Congress, in the place of sucI
Senator so going out of office" There
are also some decisions which establish
conclrsively this view of the case. Fol
instance:
'"The Senate is a permanent body; III
existence is continued ard perpetual. y
| Cushing's Law of Legislative Assemblies
19.
"But should majority of The State
persistently refuse to elect Senators, The
government would come TO an end. y
Cohens vs.. Virginia, VIII. 264; 5 COnd
100.
We then see that it was the purpose o
the trainers of the Constitution to provid
for the election of Senators by the Legis
latures before a vacancy should occur
and Congress, by the actof July 25, 1866
has required that the Legislatures shall s
elect. No Governor has ever appOinte
a person to succeed a Senator whose teri
bad expired by limitation, nor would III
Senate receive such a person as a Senstol