Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-03-28


port presented yesterday by Senator Hoar. the
minority report deals directly only with the
claims of Mr.. Mantle. but both are intended 20
cover as well the cases of all three OF the ap-
pointed Senators-Messrs. Mantle. Beckwith
and Allen.
The question presented. according to the
minority report. is: Could the governor Of the
state appoint a senator at the beginning of
new term. the legislature being in session and
refusing or failing to elect?
The report quotes the Constitution provision
and the act Of 1896 relative to the election and
appointment Of Senators ard then contends
that the original terms of Senators must begin
by being chosen by the legislature.
As there are but two WAYS OF constituting
Senators, so there are obviously but two WAYS
OF creating vacancies; one. the primary way,
oy the expiration OF the constitutional
term for which the Senator was
elected; the other. the accidental or unforeseen
or unexpected happening of some casualty to
or upon the incumbent. such as death before
ms term ended. resignation. expulsion disoual-
incation or any other cause that should take
him out OF the Office to which he was elected.
ACCIDENTAL ISrERRuPrIox.
Now, the Constitution having made specific
and express provision for filing the original
term of each Senator by the legislature. there
remained nothing else to provide for except
those accidental Interruptions Of a term which
should happen TO create vacancy. The
manner of this happening and the
kind of vacancy or of the cause
which might create such a vacancy is signi-
fed by the example given, as by 'sresicnation
or otherwise" The rule of legal INTERPRETATION
undoubtedly is that where specific words are
used, followed by more general words the gem
erai words are qualified by the specific words
Copious citations from high legal authorities
are given to sustain this contention. which is
then applied to the clause Of the Constitution
in question. 1t is held that the method of
choosing senators for the full term having been
provided for there remained no other
necessity of providing for the filling
OF Senator's seats except in case of an
accidental happening. and this is provided for
by the words: IF vacancies shall happen by
resignation or otherwise during the recess Of
the Legislature" etc. Plainly and Enthusiastically
the manner in which such vacancies were to
happen are exemplified by the word ''resigna-
ton" and addition of the general words
''or otherwise" referred only to the unenumer-
ated methods of a similar kind by which such
accidental vacancy might occur. IL we apply
the ordinary rules Of construction there is no
escape from this. but if. as commended the word
otherwise" embraces any possible vacancy
then it would be without any limitation or
qualification whatever, and the word '.resigna-
ton" would be eliminated and DESTROYED 1t
may be added also without irreverence that
our respect for the learning and common
sense of the trainers of our constitution
would be likewise destroyed. If they had in
tended to provide that the governors should
fill every vacancy that could possibly happen
during the recess OF the legislature then thew
would have said SO. thev did in the case Of a
similar provision for filing vacancies in the
house, which happen in the representation Of
any state, as provided in the fourth clause Of
section 2
MEANING OF THE WORD ''HAPPEN."
At this point the report discusses at length
the exact meaning of the word happen as
used in the Constitution. and denies that it is
used indiferently for occur" or "come to
pass"
Touching the contention that the Constitu-
ton requires the Senate to be full. by any and
all means, the report denies the correctness of
that statement, although its purpose was to
have the state representation full by the opera
ton OF its specific provisions for filling
regular terms both at the beginning and
as they legally expire; and for provid-
ing against any accidental or unfor-
seen Casualties by which seats thus filed might
become vacant other than by legal expiration of
terms. Further than this no man say that
the constitution makers intended to go. 1t
cannot for moment be supposed that they
contemplate or intended TO provide for
case where either the legislature or the gov
eruor Of a state should want only or with
any other motive or for any reason
either refuse or fail to perform their duty in
the creation OF Senators. This would have been
to express a doubt and want of faith in the
perpetuity of the structure which they were
building. On the country, it is just and rea-
sonable to suppose that, having in
vested each state with certain specific rights
as to representation in this body and imposed
upon them the duty of exercising these
rights In a certain specified way, patriotism
and self-interest would combine to secure the
enjoyment of these rights more effectually than
any provision which they could possibly insert
In the coustitut ton.
OPPOSING THE MAJORITY.
The majority say that the permissive power
to appoint controls and is paramount to the
mandatory power Of the legislature to elect,
which is illogical in the extreme. The language
clearly is only intended to give state executives
a right to keep the Senate full by appointments
and nothing more. In every mention in the
Constitution Of the crealion of Senator'S but
one, an election, is contemplated.
1t is calculated to excite smile to suggest
that a state is deprived by the action of Con-
gress In any possible way of her equal suffrage
in the Senate il her legislature refuses to elect
Senator and send him here or If the COVER
nor, in the case OF failure Of the legislature to
elect, shall refuse to appoint Senator aud send
him here. Both of these things have happened and
nine states at different times have been for one
or more years with but one Senator in these
halls and no harm happened to state or nation.
The danger arising from the failure of a state
to have full representation for a short time is
not for moment to be compared with the
danger which comes from departure from the
Constitution. The idea cannot be tolerated
that We are at liberty to compel a construction
OF the instrument in any manner opposed to .
clear meaning Of particular words and phrases.
THE THREE CASES.
The spectacle here presented Of three states.
at the same time and in the same manner, and
by the same or similar combinations, refusing
to perform their constitutional duty OF elect
ing Senators to this body for the purpose Of
throwing the appointment into the hands Of
the executive under the vicious precedents which
have lately been established is little
short Of a scandal upon constitutional govern
ment. 1t enables us to see with what ease q
few ambitious and aspiring men in every legis-
lature, by q combination with the executive,
can defeat the will of the people and the plain
purpose Of execution.
In the cases of Mantle and Beckwith the
legislatures adjourned the day before the va
cancies occurred despite their sworn duty to
fill them. II legislatures can thus be permitted
to tamper with the Constitution and laws Of
their country and be rewarded with success
and impunity, we respectfully submit that a
great blow has been inflicted upon the good
order and legal government Of our country and
the permanency of its institutions.
The report afirms rs uncontra iicted prop-
osition that where q governor has exercised his
power Of appointment until the meeting Of the
legislature and that legislature has failed n ll