The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-03-30

lowing: IL VACANCIES huppen Ov feS1pnu
ton or othervtss during the recess of tn,
Legislature Of any State" meaning by
the words "or otherwise that II In any
way Whatsoever. aside from resignation, q
vacancy shall occur, 1t can be filled by the
Executive. That our view Of the proper
construction Of this provision Of tho Federal
Constitution is sound, Is shown by the de-
bates which occurred In the Constitutional
Convention in Philadelphia in 1887. At
that time, for instance, Mr.. ELLSWORTH
said "As there will be but two Senators
from a State. vacancies may be of great
moment !" and on the question Of striking
out vacancies may be supplied by the
Executives" one State voted faye" and
eight States voted mo"
The great Attorney General of the United
States, WILLIAM WRIT, held, and all his
successors who have expressed an opinion
on this constitutional provision have also
held, that the words should be construed as IL
the phrase were "If It happens that there
Is a vacancy in the recess" or, If a vacancy
happens to exist In the recess"
Now, what has been the Interpretation
put upon this provision of the Constitution
by the United States Senate itselfH The
earliest case was within q year after the
Inauguration of WASHINGTON, on March 81,
1890. Mr.. GRAYsoN, q Senator from Vir-
ginia, had died, and GEORGE MASON, elected
by the Legislature to succeed him, declined
the election. The Governor appointed JOHN
WALKER, who was seated by the Senate.
There were eight other cases between that
time and 1880, in which the Legislature of
n Stata Ind fof1al IN a1aof m arcroooor and
the Governor Of the State had appointed
the Senator whose term had expired to sue
coed himself, and In all of these cases the
Senate seated the ap~pointee of the Governor.
The term Of AARON OGDEN, q Senator
from New Jersey, expired on the Sd of
March, 1903. The Legislature failed to
elect his successor. The Governor appoint
ed JOHN CoNDIT, and CoNDIT was seated by
the Senate.
The later precedents bear out the Same
Interpretation.
1t Is true hat in 1925 JAMES LANMAN
of Connecticut, who had been appointed by
the Governor in February to fill a vacancy
expected to occur In March, was refused his
seat, but Judge STORY says that "LANMAN
was excluded because he had been appointed
before the vacancy occurred" So his case
turned upon an entirely different point.
In 1879 the term Of a Senator from New
Hampshire expired, and the Legislature
failed to elect a successor. The Governor
appointed CHARLES H. BELL. to fll the va
cancy, and, after an exhaustive debate, Mr..
BELL was seated by the Senate. In this
debate GEORGE F. EpMUNDs, one of the
greatest lawyers who has ever adorned the
Senate of the United States or addressed tho
Supreme Court, said:
Tho word happen II has been said, means q
casualty. o contingency. SO IL does. 1t also means
anything that takes place or oocurs. that comes to
pass. By what authority do constitutional lawyers, |
when q word OF several meanings Is used, which in
cludes several particulars within those meanings, say |
tionary and by the common understanding of man. !
kind now as It was then? By what species OF law or
OF logicis It that We arc told that Q word is to be shorn
Of half its meaning? Tho Constitution does cover the
Of a death undoubtedly. That happens. 1t hap
pens much more than q resignation does. A resiRnn.
ton in the sense Of chance docs not happen at all, in
that sense happen because q resignation docs not
come by chance. 1t comes by the free will of the per
son who is competent to make IT."
And siA years later HENRY W. BLAIR of
the same State was seated under exactly
SiSoihot0lCCo, ohu III JuAU ucDaC0
Senator EDMUNDs pointed out the absurd
consequences OF a narrow or restrictive view
IF this provision of the Constitution.
Again, in 1889, Mr.. MARsroN of New
Hampshire was seated under like circum.
stances, and in 1893 the Senate seated
PAsCo of Florida, his case being
IN all fours with the New Hampshire cases.
And 1t must be noted that in all these cases,
he vacancies arose by the expiration of the
and in every one of them it was held
hat the Governor had the right to appoint
when the Legislature had not elected. The
'nly precedent the other way ia that of the
case in 1898. The Legislature of
Montana met, duly organized, and balloted
n joint convention for United States Sena-
or from day to by for nearly two months.
t adjourned on March 3, and a day or two
alter the Governor appointed LEE MANTLE
o fill the vacancy caused by the expiration,
March +, of the term of Senator SAUN-
The United States Senate declined
o seat Senator MANTLE. This action of the
of the United States wa in viola
ion of all precedent, and was not consis-
with its action the same year with ref
renee to Senator PAsco Of Florida. But
he Mantle case can be differentiated from
he Corbett case in this way. In Mon
ana the Legislature had been regularly or
anized, and it had had an opportunity to
iect a United States Senator, and for
in joint convention ballots had been {
for Senator. There the due or
Of the Legislature and the
p~portunity to elect formed salient points I
I difference from the case of Senator 1
'oRBETT, and it would seem to be clear I
hat the Senate must nave based It's I
ction in the Mantle case upon the failure |
( a Legislature to elect when it has had q
lie opportunity. We, however, care not
the Mantle case turned on this [
oint or not, for we take the broad position
nat in every case where u term has expired. G
nd there has been a failure on the part of 1
nc Legislature to elect a new Senator, and
le Legislature has adjourned, in the 4
me of recess the Governor of the State has q
clear right to appoint a United States t