The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1893-03-28
In the Case of the Title of Mantle
to Seat in the Senate,
A VERY INTERESTING ARGUMENT
Covering the Questions InvolTod-Ets
Rejection or Adoption will Proba-
bly, Determine tho Status to All
Three of the Senators appointed
from tho Western states-SIr' Hoar
Presents tho Minority Report

eTnOF OF MOHlUHaI "SiV HN"HS W. '''N
senate to-day, Mr.. Hoar submitting the
report OF the minority in favor Of seat
ipg Mr.. Mantle, and Mr., Vance, chair
man Of tho committee, tho report
AGAINST seating. There arc two other
cases-those OF Mr.. Beokwith, up
pointed by the governor Of Wyoming,
and Mr. Allen, appointed by the gov
ernor OF Washington. Inasmuch us
tile facts are tho same the'test will be
made in the case OF the senator upon
whose credentials the report has been
made. 1t is not unlikely that as this
case is decided so will be the Others.
Both reports are rather lengthy and
onote yoluminously from the earlier
decisions OF the senate upon cases deal
ing with the Same question, The ma
iority state that they begin their in
ouiry with tho primal and controlling
mandate OF tho constitution resting
upon the senate, that the senate should
be kent iull and the separate repre-
gentation thoroin OF each state was the
most important and Interchangeable single
obligation which the instrument creates,
The consideration provided that no
state should ever DO deprived OF its
equal vote in the senate except by its
own consen. TO n change in the con-
stitutlon itself, and this consideration
itself was held TO be OF infinitely more
importance than tho question whether
the appointment should he made BY the
legislative or the executive.
In discussing the subject OF Vacan.
cies, the committee reproduce Il part OF
the famous debate between Webster
and Calhoun and reattirm the doctrine
laid down at that time by Mr.. Webster
when he took his stand against state
sovereignty Upon this line, and in
reply TO the assertion that failure by
tho legislature to elect senator is re-
fusal by the state to be represented,
the majority make two-iold answer:
First-That the constitution ot the
United States did not mean to permit
stateto be unrepresented andthis Consti-
tutional purpose has been carried out as
far as possible by the statute OF 1886.
Second-The inability OF a state legis-
lature where there is more than one
candidate to agree upon senator is by
no means equivalent to refusal OF
state TO elect one. The majority set
out in the argument with the clear, IN
questionable purpose OF the cOnstitu-
ton to keep the senate full, and the
fact that every other purpose OF tho
constitution relating to such matters is
accomplished by holding that the
power in question resides in tho gov.
ernor. The language OF the constitu-
ton, says the majority, is quite as well
suited 10 confer the power upon the
governor OF appointing to vacancy &C.
cupying at the beginning OF term, or
TO vacancy which began to exist
when legislature was actually in ses-
sion, and continued after the adjourn
ment OF the Legislature, as any Ian
guage likely to be used. After quoting
the various definitions of the word wa
cancy" tho majority come to the con-
Clusion that the words OF tho constitu-
ton convey to an ordinary apprehen-
sion the simple meaning III there be a
vacancy by resignation or otherwise the
executive may make temporary ap.
pointments, etc"
"The language OF the constitution"
says tho majority, tit seems to us, was
carefully destined to apply to the case,
not OF q single vacancy which might
occur only in single recess OF the leg.
islature, but to every case where legis-
lature having adjourned without action
second or third vacancy should occur
which, under tho language OF the con-
Htitution, may be provided for by tenn
porary appointments" This PROPOSE
ton was supported by numerous deci-
sions which are quoted, after which the
majority says: ave have then first a
clear and controlling constitutional pur-
pose that every state shall be at all times
represented in the senate by two sena-
tors.
"second-A declaration by the con.
stitution that that purpose Is to DO ac-
complshed by the authority Of the
executive Of tho statewhen the iogisia-
ture has failed to elect o senator.
"Thrd-rhe language In the consti-
tuition which, according to good estab-
lished usage, is sufficient in its ordinary
meaning to confer this power on the
executive in the case OF q vacancy ex-
listing from any cause whatever, and at
any timo whatever, while the legisla-
ture is not sitting, whether contingent
or otherwise.
"Fourth-Whcro like phraseology is
used in tho constitution in regard to
other offices it has been uniformly held
to have the meaning we attribute to 1t
here,
"Fifth-The construction given by the
very able supreme court OF Indiana to
language substantially identical.
"sixth-Tho senate has for many
years past invariably recognized the
controlling obligation Of this purpose Of
tho constitution, even where tho Ian
gunge Is doubtful, or literal construc.
ton would lead to another result"
Alter quoting In extenso from the
Fell case, tho majority conclude their
report US follows; ut was shown by an
unbroken limo Of decisions, with ono
possible but doubtful exception, that
tho senate has maintained authority OF
the. executive to appoint vacancy
which occurs at the beginning OF term
by reason OF tho failure to elect.
"WO do not think II necessary to in.
sist upon tho importance OF adherence
by ,ilis high court to preCodents in Judi
ciol matters, such as titles to It's seats.
The only alternative is in tho Judgment
oil tho senate whether tho rights q tho
states arc to DO dependent upon tho
changing political majorlties OF this
chamber 1t seems quito az important
that tho construction given by the sen.
ato to tho constitution In proceedings Of
q Judicial nature should DO inneSibly
adhered TO, except in cases Of clear or.
ror IN spite Of the grave and serious nj.
tempt which must beset this tribunal
bOyonl all othpra IN dnnarL frnu, ,hn,,