The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1876-02-18
VACANCIES" IN THE SENATE.

'NAChNClEo' In The SENATE.
1t is stated, apparently upon authority,
that the supporters of Pltchback, in the
United Safes senate, seeing that, if the
question is pressed to a vote, Senator Ed
munds' resolution, declaring that Pinch
back is not entitled to sea-, will be
adopted propose to stave off action there
on until after the adjournment of the
Louisiana legislature. The avowed object
of this ptlicy is, that Governor Kellogg
may fill the vacancy" by a temporary ap-
pointment in order that a republican may be
secured, because, If the present legislature
should elect, a democrat would be returned.
1t may he, and probably liz, true that &C.
ton will be postponed until after the adj
journment Of the Louisiana legislature
unless the legislature should enter upon
trial of endurance with the senate and
beat it at It's own game-but it would be
impossible to conceive that the senators
should have any hopes of the success of
such q policy, if it were not for the fact
that we have come to be prepared for
almost any folly--both in opinion and &C.
tion-0n the part of certain senators and
for the further fact. that certain usually
well informed journals seem to think that
such a course would be "shrewd dodge"
on the part of Pinchback's friends, and
result IN securing his appointment, or
that of some other republican like him, to
Ali the vacancy so created. We propose
briefly, to inquire how much foundation
there is for sucH an opinion.
The power to fill vacancies in the Of
flee of senator is derived from section
three of article first of the constitution of
the United States, and is as follows: eff
" vacancies happen by resignation or
" otherwise during the recess of the legis-
" lature of any state, the executive there
" of may make temporary appointments
" until the next meeting of the legislature,
which shall then fill such vacancies" If
the senate adopt Senator Edmunds' resolu-
ton, what will be its effect-to make
vacancy" or to declare that one has ex-
listed ever since March 4, 1873, the term for
which Pnchback claims seat Clearly,
as it seems to us, the latter, for il there has
been legal election of senator there is and
can be no vacancy" and Pinchback is
entited to his seat. He will be declared
not entitled thereto, if at all, simply be-
cause he never was legally elected and,
If so, there has been ''yacancy" all along,
and his being claimant under a void cleo
ton cannot change the status of tie seat.
There is, moreover, case in point from
Vermont, which, although not precisely
similar, is TO all intents and purposes q
parallel case, and seems to be a decisive
precedent. William Upham was a senator
from Vermont for the term expiring March
A, 1856. He died, during the session of
congress, January ID, 1858, and Samuel s.
Phelps was appointed, by Governor Fair
banks. as senator in his place /" until SAID
" vacancy shall be provided for by the gen.
" eral assembly of the state of Vermont"
lie took his seat as such. The general as
sembly convened in its regular session in
October, 1868, but, in consequence of a
disagreement between the senate and house,
failed to elect senator to supply the va
cancy. The general assembly adjourned
sine die leaving Vermont without senator
for Mr.. Upham's unexpred term, unless
Judge Phelps was such senator. Congress
convened on the first Monday of December
1858, and Judge Phelps appeared, took his
seat as senator, and continued to occupy
it, without question, until January 3, 1854.
On that day, Mr.. Seward introduced q
resolution directing the committee on the
judiciary to inquire as 10 Judge Phelps
right to seat and the committee, sub
sequently, presented a majority and NIL
nority report the former declaring that he
was ''entltled to retain his seat in the SEN
ate" The resolution was deliberately and
ably discussed by Senators Badger, Bayard,
Butler, Clayton, Foot, Mason, Seward.
Toucey and others, and by Judge Phelps
himself, and resulted In the rejection of
the resolution by vote of twelve to TWEEN
ty-six. The result is an authoritative de-
termination of the power of the governor
to fill a vacancy, and, also, defines what a
Vacancy in the meaning of the constitu-
ton, is. Judge Phelps was declared not
entitled to his seat. He had occupied his
seat and served as senator, and the senate
declared that his appointment was not
valid, but this did not create Vacancy
which the governor, under the constitution,
was authorized to ill.
Is there any practical difference between
the "vacancy" created in Judge Phelps
case, by the action of:the senate, and the
vacancy" which would be created in
Pinchback's case by the adoption of Ed
munds' resolution One was appointed by
the governor, the other by a so-called legis.
lature-and both acting without authority;
the one because he exceeded his power,
and the other because ii had no legal de
faoto existence. The 'vacancy" in Judge
Phelps case existed, as the senate declared,
from the meeting of the legislature, and,
under the constitution the governor could
not fill it. The vacancy" in Plnchbacks
case, If 1t exists at all, has existed since
March 4, 1878, and Kellogg cannot supply
the vacancy, because there has been meet
ing of the legislature since that day.