Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1885-03-11
FORTY-NINTH CONGRESS-.
Special Session,
sen ATE.
WASHINGTON March 10

WASHINGTON March 10.
me chair laid before the Senate a memo
nal from the governor of Arizona, asking for
the appointment of fourth Judge of the U.
>. district court; referred to the judiciary
committee
The resolution offered yesterday BY Mr.. Hoar
that Henry w. Blair be sworn in as senator
to NIL vacancy, was taken up.
Mr.. Vest reaffirmed the opinion expressed
by him when the Bell case was under discus.
sion, upon the power of the executive of a
State to appoint senator. He held that the
vacancy came within the provision of the
wide field of discussion which this question
opened. The Senate would, he thought, rest
its actien upon the authority of the Bell pre-
cedent. If legislative body could ever be
bound by precedent, the Senate had bound
itself. Should that decision be reversed the
people of New Hampshire and other States
would be compelled to change their practice
from time to time according to the changing
maJoritles of the opinions of the Senate. The
controlling provision of the constitution was
that which declared that the several States
should have an equal right and authority in
the Senate. Such was not the case when
there was single vacancy. In order that
the States might be equally represented, the
provision was made that where vacancies
should happen by resignation or otherwise
during the vacancy Of the legislature, the
State executive should have power to appoint.
The provision regarding the filling of execu-
tive offices by the President during the re-
cess of the Senate was similar in character.
Mr.. Vest held that the two provisions were
not analogous. The first related to vacancy
which should happen by resignation or other
wise. In the matter of vacancies IN execu-
tive offices, the words "by resignation or
otherwise" were omitted.
Mr.. Hoar asked if vacancies could happen
except by resgnati or otherwise.
Mr.. Vest thought so. The trainers of the
constitution put in no word which did not
have meaning. He held that the words ''by
resignation or otherwise" plainly meant by
some casualty or accident, such as death, or
resignation. and that they were in antagonism
to expiration by the operation of the law
Mr.. HOar held that if Mr.. Vests interpre.a-
ton was correct, the phrazeology would have
been, 'by resignation and not otherwise"
Continuing his remarks he referred to several
precedents, and held that in the Lanman case
| there was clear objection. The decision in
that case not to admit Lanman was for the
clear and indisputable reason that the gov
ernor had made an appointment before the
vacancy existed.
Mr.. Vest said that in proof that the Lam
man case was constructed by the Senate as
he argued. there had been no less than eight
decisions of the Senate since, in accordance
with the precedent, and vacancies of from
one to two years had existed in accordance
with it.
Mr.. Salisbury said he could not vote to
seat Mr.. Blair.
The Senators who had read sketch in the
Lanman case, 10 1925, knew that this very
question now before the Senate had been
before the Senate had been discussed on that
occasion. Happen was held to be the gov
erning word of the constitutional provision,
as it always implied contingency. The
Senator from Massachusetts, seemed to think
alone upon the right of a governor to sp-
point to a vacancy for full term before the
vacancy existed. The legislature of New
Hampshire at its session had neglected its
duty, and now the question was as to the
the Governors right to fill vacancy. Were
all precedents and authorities to be overruled
bv single act of the Senate at a time when
party spirit ran high, when the republicans
| were in the minority, wheD as he had rea-
sons to know, votes were given in support of
Mr.. Bell for expediency, and not because
the law in the case was in his favor?
| MIR. Jones, OF Florida, said that he was
| glad this was not, in one sense, an original
question in this body, and that review of
the Bell case would give ample light for
guidance. He had voted for seating, but he
had not so voted for expediency, but for con-
vction. So far as he knew party feeling had
not controlled in the Bell case at all. When
the case was pending he had examined the
constitution, and had satisfied himself that
its strongest safeguards were thrown around
| the rights of the State and its full represeD-
tation in the Senate. One of these safeguards
was the provision authorizing the Governor
of the State to make temporary appoint
ments.
Mr.. Ingall, interrupting, asked if the legis-
lature meeting next after the occurrence of
the vacancy should fail to elect, that then
the Governor have power to appoint.
| Mr.. Jones replied that in that case he did
not think the temporary appointee could hold
his seat with disregard to the authorities and
precedents. He held that the Senate was
the defendant, and might exercise the same
right of judgment as was exercised by its
predecessors. 1t was not bound as the su-
preme court was bound, by precedent.
Mr.. Ingalls, was not able to understand
why the last legislature had not elected a
Senator. Suppose there should be an inva-
sion of the State of New Hampshire, what
legislature would the Governor convoke?
Mr. Pike replied, the legislature chosen in
November, 1882.
MrIngalls said the inference was irrestable
that the legislature chosen in 1882 was today
the legislature of New Hampshire, and the
only legislative body competent to act That
being the case, that legislature had the right
at the last term to choose q successor to Mr.
Blair. That legislature did not exercise its
power, and the question arose whether any
vacancy had occurred which the Executive
could fill. The Senate, he said was now
settling the case for New Hampshire alone
There were vacancies in Oregon and Illi-
nois. He was not convinced that a single
appointment by the governor did not exhaust
its power. He regretted that the connection
of affairs in New Hampshire exposed the
Senate to the revival of this controversy
every two or four years.
| Mr.. Mcpherson assumed that there was no
State without a legislature which could be
convened IN emergencies. He did not see
why the governor could not convene the leg
islature for the purpose of electing a Sena-
ator.
Mr. Pike explained the law of New Hamp-
shir bearing upon the election of Senators
| The constitution of the State provided for
the election of legislature once In two
years. The question had arisen whether the
body elected next before the expiration of the
senaforial term had a right TO a II tho vsaancv