The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-03-28
FAVOR SEATING MANTLE,
Report OF the Majority Of the SEN
ate Committee on Privileges
Presented.
Constitution Does Not Mean That
u State Shall Be Unrep-
resented.
Hold That tho Governor Has Power to FIJI
Vacancy at Any Time, From
Any Cause.

WASHINGTON. March 27-The report of
tho majority on tho contested election case
of Lee Mantle, senator appointed by tho
governor of Montana, was made TO the
senate to-day. There arc two other cases.
those of Beckwith. appointed by the gov
ernor of Wyoming. and Allen. appointed
by the governor Of Washington. Inasmuch
as the facts are tho same n test will be made
in the case Of the senator upon whose ore
dentials the report was made. and it 10 not
unlikely that IA this ig decided, 10 will be
the Others. Tho report Is rather lengthy
and quotes voluminously from the early
decisions OF the senate upon cases dealing
with the same question. The majority
state that they began their inquiry with
the primal and controlling mandate of the
constitution resting upon them; that the
senate should be kept full, and that the
separate representation therein OF each
state was the most important, unchanRe-
able single obligation which the instru-
ment creates. The constitution provided
that no state should ever be deprived OF an
equal vote in the senate except by its own
consent. by change in the constitution
itself, and this consideration was held to be
OF infinitely more Importance than the
| question whether the appointments should
be made by legislative or executive power.
In discussing the subject of vacancies the
committee reproduce part of the famous
debate between Webster and Calhoun,
| and re-afirm the doctrine laid down at
that time by Webster. when he took q
| stand against state sovereignty. Upon
this line. and in reply to the assertion that
failure by the Legislature to elect senator
ia refusal by the state to be represented,
the majority make two-fold answer:
| First. That the constitution of the
United States did not mean to permit q
state to be unrepzesented. and that this
constitutional purpose has been carried out
as far as possible by the statute OF 1866.
| Second. The inability OF state legisIa-
date. to agree upon senator is by no
| means equivalent to refusal of the state
| to elect one.
The majority set out, in the argument,
with the clear, unquestionable purpose of
the constitution to keep the senate full.
and the fact that every other purpose of
| the constitution relating to such matters ia
accomplished by holding that the power in
question resides in the governor. The Lam
guage OF the constitution. say the majority,
| is quite as we'll suited to confer the power
upon the governor of appointing to va
oancy occurring at the beginning OF term
or to vacancy which began to exist when
| the legislature was actually in session, and
| continued after the adjournment OF the
legislature. as any language likely to be
used. After quoting various definitions of
the word vacancy" the majority come to
the conclusion that the words of the con-
stitutlon convey to al ordinary apprehen-
sion the simple meaning that if there be a
vacancy by resignation or otherwise the
executive may mako temporary appoint
ments, etc.
"Ihe language of the constitution" says
the ma jority, lit seems to us, was carefully
designed to apply to the case OF not a ain
gle vacancy which might occur only in q
single recess of the legislature. but to every
case where the legislature, having adjourned
without action, second or third vacancy
should occur which, under the language OF
the constitution, may be provided for by
Temporary appointment"
This position is supported by numerous
decisions quoted, after which the majority
gays: We have then the first clear con-
trolling constitutional purpose that every
state shall be at all times represented in
the senate by two senators.
Second, The declaration by the constitu-
tion of that purpose is to be accomplished
by the authority of the executive of the
state when the legislature has failed to elect
O senator.
Third. The use of the language in the con-
stitution which, according to good and es-
tablished usage, is sufficient in its ordinary
meaning to confer this power ON an execu-
tive IN case of vacancy existing for any
cause whatever and at any time whenever,
while the legislature 10 not sitting. whether
contingent or otherwise.
Fourth, Where like phraseology is used
in the constitution in regard to other Of
fees it has been uniformly held to have the
meaning we attribute to it here.
Fifth. The construction given by the very
able supreme court of Indiana ia in Ian
guage substantially identical.
Sixth, The senate has for many wears
past invariably recognized tho controlling
obligation OF this purpose of the oonstitu-
tion. even where the language is doubtful
or a literal construction would lead to all
other result.
After quoting in extenso from the Bell
case New Hampshire) tho majority CON
o!ude their report as follows: 1T WAS shown
by All unbroken line of decisions with one
possible but doubtful exception. that the
senate has maintained the authority of the
executive to appoint to vacancy which
occurs at the beginning of the term, by rea-
son of failure to elect. We do not think it
necessary to insist upon the Importance of
adherence by this high court to prscedents
i'll Judicial matters such as title to its seats. |
1.-The only alternative is. in the judgment |
of the senate. whether the rights Of the |
states are to be dependent upon changing
political majorities of this chamber. It
seems quite as Important that the construc-
tion given by the senate to the constitution ,
in proceedings of a judicial nature should
be infiexibly adhered to. except in cases of |
a clear error. in spite of the grave and seri- !
ous astempt which must be met to induce |
this tribunal, beyond all Others, to depart
from them IN times Of high political exotic.
ment."
SUPREME COURT DECISION.