Asheville daily citizen., 1893-04-03
MONDAY, APRIL 8, 1898.
= orsr1rUr1o~ALoUEsr1ors

n CONSTITUTIONAL AL0UEsTKoN
While in extra session to receive and
consider presidential appointments, the
Senate is also proftably engaged in co y
sidering the question of the adnis ion To
that body of the gentle men named by he
governors of Wyoming, Montana and
Washington to be senator's from those
states to fill the full terms, or, as some
contend, till the next meeting of the leg
islatures of their respective States.
In each OF these states, it will be re-
menbered. the legisla lures failed to elect
a senator and the governor filled the va
ca ncy by appointment. The Senate com
n1ittee on Privileges and Elections, of
which Senator Vance is chairman re-
ported unfavorably the admission of
such appointees to the Senate. The dis
cussion that followed has been in
teresting. 1t turns mainly on the mean
ing of the words in the Constitution
conterrinP on the governors the power
OF appointing senator's w hen there are
vacancies caused by resignation or
otherwise " Senator Mitchell of Oregon
thus stated his position:
The executive of a State has no CON
stltut'onal power to choose a senator
for a State, not fo- even the br iefest
possible period of time; that belongs
alone and exclusively under the Consti-
tuition to the legislature The executive,
however, is, by a certain carefully pre-
scrlbed, clearly defined, limited constitu-
tIonal grant, clothed wit n the prerOga-
tive w h1ch he alone can exercise, as l
shall confidently contend, only after a
senator has been thus chosen by the
proper constitutional "A Il t hOritV- he leg
lSlature-and vacancy in that Senator's
term so chosen subseq uently happens
by resignation or other wise, by which
he can. in the event such vacancy or va
canc1eS happen during the recess of the
legislature, not choose Il senator. MT
even fill the vacancy, but make tempo
rarV appointments until the next meet.
ing of the legislature, w hich shall then
fill such vacancy"
In other words. the Constitution does
not contemplate or provide for the fail
ure OF a Legislature to do it's mandatory
duty, any more than that of governor
to do his, otherwise a Senator Mitchell
points out, the Constitution would have
provided that, in case the governor of a
state failed to act, then the duty would
devolve on some other state officer. The
Legislature having neglected to elect a
senator no power is lodged in Il COVER
nor to hll the vacancy, it not coming
about through resignation or other
WISE As to the force of his last word
taken in connection with the context
no one has spoken with greater clearness |
than Senator Hill of Georgia:
Now, the w ord otherwise there, as
decisions, has meaning; it has very
definite and well-settled meaning; and
that is this: vacancy that happens
otherwise is one that is similar to those
enumerated. For instance, a vacancy
may happen by death, resignation. or
Otherw1se. Otherwise, how? In some
similar method upon the incun bent. |
The vacancy occurs by death upon the
incumbent; the vacancy occurs by res
1gna tion-the act of the ir1cunb bent: and
if 50 1T occurs in any other wise the
other wise that is in Il similar manner
upon the incumbent; that is, if the in
cum bent shall be expelled; that is, if the
lncum bent should not take his seat after
he has been elected. The word 'Ot herw wise
there evidently means a vacancy happen
ing in a similar manner by casualty
those specified"
Thus, a few years ago, when Senator
Jones, of Florid; showed lack |
of sense if of sanity by |
endeavorinE to force his atten- |
tions on lady of great wealth and re-
fused to return to the Capital to attend |
to his senatorial duties. it was seriously |
urged that vacancy had been created |
''by the act of the incum bent" and that
it was the duty of the governor of Flor.
ida to fill it. The was without pre-
cedent, however. and no action was
taken till Senator Jones's term expired,
w hen che Legislature of Florida elected
his successor
The position taken by Senator Vance
and the other members of he co IN rnittee
on Privileges and Elections, that the fail
ure OF the Legislature to elect a Sc ator
does not create a vacancy the mean
ing of the Constitution, would seem to |
be well taken Is it not incumbent on
the governor of State where such a
failure exists, to call the 1egisIat ature in
special session for the one purpose of do
ing their duty required by the manda
tory words of the Constitution p
. If vacancies happen by resigna-
ton or otherwise during the recess of the
legislature of any State, the executive
thereof may make temporary appoint
ments It'll the next meeting of the Leg
islature, hich shall then fill such vacan-
cics."
The Test
he w |