The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1893-03-28
Clearly Entitled to Two
Senators.
HERE IS A VITAL QUESTION.
Does the Failure of a Legislature to
Elect Constitute Refusal by
the State Itself?
Special to THE MoRNINe CALL.


report In favor OF seating Mantle. There
are two other cases-those of Beckwith.
appointed by the Governor of Wyoming,
and Allen, appointed by the Governor of
Washington. Inasmuch as the facts are
the same test will be made in the case of
the Senator upon whose credentials the re-
port IS made. Il is not unlikely that as this
is decided so will be the others.
The report Is rather lengthy. and quotes
yoluminOusly from earlier decisions OF the
Senate upon cases dealing with the same
question.
The majority state thatit began It's inquiry
with the primal and controlling mandate of
the constitution resting upon it; that the
Senate should be kept full. and a separate
representation therein of each State was the
most important apd unchangeable single
obligation which the instrument creates.
The constitution provided that no State
should ever be deprived of Its equal vote in
the Senate except by its own consent, and
TO so deprive it amounts to change in the
constitution itself. and this consideration
was held to be of infinitely m ore Importance
than the question whether the appointment
should be made by the Legislature or the
executive
In discussing the subject of vacancies the
committee reproduces part of the famous
debate between Webster and Calhoun, and
reaffirms the doctrine laid down at that time
by Webster. when he took the stand against
State sovereignty. Upon this line, and In
reply to the assertion that failure by the
Legislature to elect a Senator is a refusal by
the State to be represented, the majority
makes two-fold answer.
First - That the constitution of the
United States did not mean to permit the
State to be unrepresented, and that this
constitutional purpose has been carried out
as far as possible by the statute of 1868
Second-The inability of the State Legis-
lature, where there is more than one candi-
date, to agree upon a Senator, is by no
means equivalent to the refusal of the State
TO elect one.
The majority sets out in It's argument the
clear. unQuestionable purpose of the con-
stitutiOn 10 keep the Senate full. and the
fact that every other purpose of the con-
stituton relating to such matters is accom-
plished by holding that the power in
question resides in the Governor The
language of the constitution, says the ma
jorlty is quite as well suited to confer the
power upon the Governor of appointing TO
a vacancy occurring at the beginning of
term or to a vacancy which began 10 exist
when the Legislature was actually in ses-
sion 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 comes TO the
conclusion that the words OF the stitu-
tion convey 10 the ordinary apprehension
the simple meaning that il there be va
cancy by resignation or otherwise the ex-
ecutive may make TEN porary appointments.
THE language of the constitution" says
the majority, "it seems, was carefully de-
signed to apply TO the case Of not a single
vacancy which might occur only in single
recess of the Legislature, hut to every case
where the Legislature, having adjoured
without action, second or third vacancy
should occur, which, under the language of
the constitution, may be provided for by
temporary appointments"
This pc sition is supported by numerous
decisions quoted hereafter which the ma
jorlty append:
"First-The clear controlling eonstieu-
tiOnal purpose that every State shall be at
all times represented in the Senate by two
Senator'S
''Second-The declaration of the consti-
tuition that the purpose is to be accomplished
by authority of the executive OF the State
when the Legislature has failed to elect a
Senator.
"Third-The use of language in the con-
stitution which. according to good and
established usage, is sufficient in its ordi-
nary meaning to confer this power on the
executive in case Of a vacancy existing for
any cause whatever, and at any time what
ever, while the Legislature is not sitting,
whether contingent or otherwise.
"Fourth-Where like phraseology Is used
in the constitution in regard to other offices
it has been uniformly held TO have the
meaning attributed to it here.
"Fiftl-The construction given by the
very able Supreme Court of Indiana is in
language substantially identical.
''Sixth-The Senate has for many wears
past invariably recognized the controlling
obligation of this purpose of the constitu-
tion. even where the language was doubtful
or where a literal construction would lead
to another result"
After quoting in extenso the Bell case in
New Hampshire, the majority concludes
the report as follows: ut was shown by
an unbroken line of decisions. with one pos
si5le but doubtful exception, That the Sem
ate has maintained the authority of the
executive to appoint to q vacancy which
occurs at the beginning of a term by reason
OF failure TO elect. The committee does
not think it necessary to insist upon the
Importance of the adherence by this high
court to precedents in judicial matters such
as title to its seats. The only alternative
is, in the Judgment of the Senate, whether
the rights OF the States are to be dependent
upon changing the political majorities of
this chamber.
ut seems quite as importantthat the con-
structlon given by the Senate to the consti-
tuition in proceedings of a judicial nature
should be intiexibly adhered to, except in
cases of clear error, in spite of the grave
and serious attempt which must beset this
tribunal. beyond all others, to depart from
them in times Of high political excitement"
The minority report. adverse to the
above, will be presented to the Senate to-
morrow by Vance, chairman of the COM
mttee.
Call then addressed the Senate on his
resolution annulling the provision of the
last legislative appropriation bill for the
appointment Of a commission of the Senate
and House to examine into the civil service
Of the Executive Department.
CalPs resolution went over without
action and the Senate went into executive
business session.
In the executive session an effort was
made to obtain release for publication of
the recently ratified Russian extradition
treaty. but the motion has not been finally
passed upon.
The question Of reorganization was briefly
touched upon also without result. and a
number Of combinations were made, in
Guiding John b. Risley to be Minister to
Denmark, but the treaty will not be re-
leased until after the next executive session.