New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-12-09
HILLS SEAT IN THE SENATE.
TT MAY BE DECLARED VACANT UPON HIS
RETENTION OF THE GovERNoRsHIP
A SINGLE DAYS ABSENCE FROM HIS POST w
DUTY MAY BE TAKEN TO PROVE HIS oN'
WILLINGNESS TO CARRY OUT HIS CON-
TRACT WITH THE UNITED STATES
AN ARGUMENT UPON THE
CONSTITUTIONAL LAW


AN ARGUMENT UPON THE
CONSTITUTIONAL LAW
IN HIS CASE
TO the Editor Of The Tri buhe
Sir There can be no question but that the trainers
NJ rhe Constitution Of tho United States contemp'aou
and intended that the members OF the Congess es.aV
ushed by the Constitution should meet ana tahe 'non
aeat AT the sessions which should be held under tho
rroyisions of the Constitution, Senator'S ana hepie
sentauves alike. The Constitution PROVIDES t'a' n'
Congress shall assemble at least once In every year
and suoh meetings shall be on the hfst holuhy ~
December unless they shall by law appoint "i".'s
days The fair meaning and import Oh t'''s p'o,l"'O
f. that each and every person elected 10 c'ie' otS.
Of Congress shall be present at the ufhe ueeisn" ~
assemblacc by law person who Is eiecueu W 49,
branch OF Congress. II he asSents % suon ob
rnaes By word or act that he intends TO accep. su'
once Is I'm duty bound to present at the opening "
Congress present his credentials. take ms seat anu
remain there as servant OF the uhltd ouOe' -"
the term TO render ouch service as may DC ioP
hi, rnaer the ru,es and regulations OF the branch III
which he ats He stands in the posuoh Vi n"'m
made n contract with the United States 10 take MS So
ut the opening Of Congress- 10 rch'',' 49, ,,a q,
term and to render such service as may be rePro VI
h7,r n, before stated The other contracting parry
the United States in consideration OF such serVe' "a'
contracted to pay him $4,000 year ana ihiie'ee
Hence. when member has so taken MS sea' u'o W.
tract Is complete and the respective parties nave en-
tered upon its performance. Each parry '"''N
fore under Obligation to fulfil the contract
II is an elementary principle OF tie III" u ~
tracts that one contracting to perform personal service
q, a o,ven time and place must be at the place au
tbe time designated ready to enter upon the sefVlce
II ia also well settled law that the failure Oh such
contractor to be at the place at the tune specineu
ready to enter upon its performance "arr'n' '
other contracting party In treating SUCH au'on'o " o.
abandonment OF the contract by the absent party vi
course IL will be conceded that there may NC PRIV
DENTAL and perhaps other causes that would vary
th,s rue to some extent but when the failure is pre-
medtated voluntary and without good ana suihcieh'
cause the falling party has abandoned the contract
and is liable to all the consequences when esinS m
low a failure to fulfil contract The III" Is aiso
well settled that when one who has entered upoii
service under contract for stated time abandons ue
service voluntarily without good ana suihcieht chu'o
the abandonment Is such breach OF the contract as
resc,nds IT, as to both parties except that it leaves
the party who has abandoned the service liable for te
damage the other party has thereby sustained
Let us suppose that man who has been elected a
United States Senator does not make ms appearance 0
the opening of the first stated term Oh congress or
which he was elected that reasonable cause Is as
signed therefor that ii is known ana can De sho"h
that he is engaged i'm other business which he has vol
UNFAIRLY entered upon, or continued I'm. subsequent
to his election-busness requiring his whole uhe anu
attention for a considerable time Mt least AFTER u'e
opening OF the session: can II be questlohed una, III
such case the Office is vacantf We apprehehd tla'
he would stand in precisely the same position uegay)
that person would who had contracted TO do years
service. say TO work upon a farm, to begin on
certain day who should, after making the contract
enter into another contract with different party 10
perform service for the same time, and on the uay
fixed for the beginning OF the service under the
first contract should not put In an appearance pul
should begin work under the second contract. The
LEGAL status would OF be the same IL the con-
tractor at time of making the contract to render
the years service under contract 10 render con-
tinuous service to another party covering ire same
time and should continue in that service after the ume
had arrived for him to enter upon the new service
under the later contract.
Again let us suppose that the memberelect makes
his appearance at the opening OF a session Oh tne
senate presents his credentials and is admitted to his
seat but at the time Is engaged In Other OHaai
business in another place requiring his full time and at
tenuon and that he Immediately or soon thereafter
withdraws himself from the Senate leaves Washington,
returns TO his own State hundreds OF miles away,
and resumes his other official business Is not this such
an abandonment of his Senatorial Office as creates
vacancys We apprehend that it is complete and
full abandonment Of his contract to the same extent
and upon exactly parallel grounds with case where
a party who has contracted 10 perform years service
to begin on certain day should begin the service on
the day fixed by the contract but In a short ume
leave the service and begin service under another
contract for different party. If we are correct In
our position thus far, and We feel oonnoeht
that IL cannot be successfully c0ntroVerten'
the next question is whnt Is the remedy In such
case. The question is not, is there remedy This
would be absurd. There must be a remedy. the laws
and Constitution OF the United states contemplate ana
provide that there shall be Senate ana d HOUSE oi
Representatives tnat the members elected to act as
Sanat nd ReOr
sessions thereof to take part in the business Al IL
Simniv make his APPEARANCE present his credentials
take his seat and then absent himself at MS pleasure
and 90 about other business which renders impossible
for him to render the service In Congress contemplated
by the Constitution and the laws II Is equally true
country without Congress. Such II proposition is
50 obviously untenabe That 1t would seem ludcrous 70
discuss it. 1t will be conceded We apprehend, that
the Senate or the House has ample power in such
cases. and that 1t would be the duty OF either branch
oq rsao Suio that that the seat Of member Is
vacant who has not appeared and taken ms
OF the session. unless ample proof should be furnished
that he sa DrSE
home to the senate House that the delinquent has
voluntarily failed to appear and that he is engaged IN
other business and especially II lie is performing the
duties OF another office, should be treated as prma
facie proof that he has abandoned his Office and his
is the duty Of either branch 50 declare vacancy
when member, after taking his seat absents himself,
otherwise which renders it mpracticabe for him to
render the services In Congress which by the Con-
,ttution and laws are required of member.
Let US apply these views OF the law TO case which
seems imminent David u. Hill, Of New-fork, was
elected United States senator ten months ago.
His term senator began on March 4, 1891. DOUBT.
less he has drawn will draw pay from the United
states from that time At the time of his election
senator he Governor Of the State of New.York
has continued TO execute the duties OF ~ Office ever
since. and doubtless has will draw his salary
Governor during the time. 1t is given out and
generally understood to be fact that he proposes 10
continue to hold the Office Of Governor Of the state Of
New-YOrk until some time In the month OF January
1892 10 perform the duties Of that Office receive the
pay which attaches to IL, and at the same time be
Senaor Of the United States and TO draw the pay