The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1899-05-03
APPOINTED SENATORS.

- OF Senators who are appointed by the
- tive says he may be criticized for his present
position because he voted to seat Cobett OF Oregon
The first case decided by the Senate was that
OF Kensey Johns, appointed by the Governor
of Delaware in 1904 after a legislative SEES
sion had been held subsequent to the occur
renee OF the vacancy The Senate held that the
Legislature having met, the Governor took no lurs
dction by its failure to elect Senator. Up this
time this rule has been adhered to- The issue raised
in the Corbett case, however, was new A careful
study of the discussion proves this plainly. The
case was stated by Senator Spooner of Wisconsin, an
able LAWYER 1t turned what constitutes "a meet
ing" of the Legislature. The Legislature of Oregon
met and the Senate organized permanently for the
transaction of business. The House never reached
even temporary organization, but met from day to
day without quorum, in futile effort to get
quorum and permanently organize. In this way the
time allotted to the session passed away without the
transaction of any legislative business and of course
without notice to the Governor that the Legislature
was in session ALL since the official notification to
him OF that fact by committee never occurred. The
issue in the Corbett case, then, was, Does such
gathering of the members elected to the Legislature
constitute meeting of that body within the legal and
constitutional meaning?
Senator Spooner said: "The constitution has de-
VOWED that Federal function election OF a Senaor)
upon the Legislature OF State SO it is but step
to argue, and the conclusion is inevitable that
there is no jurisdiction under the constitution
OF the United States to perform this Federal
function until, by compliance with the consti-
tuition of the State and the law of the State
there exists organized legislative body, consti-
tutng Legislature capable OF legisating So it was
at the suggestion of Mr. Fessenden in 1866 that the
present law passed find in the statutes
da1y
OF the Legislature Now what is the Organization
of Legislature? l looked at Andersons Law Die
tionary this morning and it says: In the sense OF
constitute to qualify for the exercise of appropriate
functions. 1t may refer to a government court,
legislative body, board OF deputies other officers
IF there is quorum of members in each
House, who have elected a Speaker or President
pro tenpore who have provided themselves with ia
cities for expressing and recording the legislative
will, who have clothed themselves by performance
of conditions precedent with the power to egslate so
that they may pass laws which will be valid and bind
ing rule OF action upon the people of the State,
even though they may not have been able to elect
permanent Speaker they should be taken as Legisla
ture within the constitutional sense and qualified to
choose Senator"
The Oregon House consists OF sixty members. The
constitution of the State requires that twothirds OF
each House shall constitute a quorum to do bust
ness but a smaller number may meet and compel at
tendance OF absentees and adjourn from day to day.
Observe the language, "may'-not must
"shall-compe attendance OF absentees. At the first
meeting of the House thrty-fOur present and
twenty-six absent. When the roll called thirty
responded and thirty absent So it continued
from day to day the highest number responding to
rollcall being thirty-one There not tenn
porary organization, no temporary Speaker was
elected and only hiry-one of the sixty members
even sworn in.
Senator Spooner's argument that this did not con-
stitute "a meeting and organization of the Legisa-
ture perfectly correct. and his deduction there
from that the Legislature having and organ
lied the Governor had not lost jurisdiction of the
Senatorial appointment was highly plausible and
justifable But observe that very argument
complete admission that if the Legislature had met
and had organized and had then failed to elect Sen
the Governors jurisdiction would have been lost
Therefore in voting to seat Corbet Senator Perkins
remained in line with the adjudicated cases of Johns
and Lanman and his vote was not inconsistent with
his present position The doctrine OF the constitution
is that the Governor takes jurisdiction only when the
vacancy occurs during a recess of the Legislature
that such jurisdiction ceases upon the meeting and
ganizaton OF the Legislature and does not return to
the Governor upon legislative failure to exercise it
1t was plausiby held in the Corbett case, in line
with the foregoing doctrine that the Governors juris
dicton remains intact if the Legislature fail to or-
ganize."
AS have said before, the whole matter is so
plain that it needs no lawyer to state it The Legis
latures of California Utah, Delaware and Pennsyl-
vania had met organized and in session transact
ing legislative business and the executives were off
cally notified and cognizant thereof when the
cies occurred in the Senate by expiration of the
regular terms. Therefore jurisdiction was never in
the Governors of those States, but originally in
the Legislatures and remains there until the Legis-
latures choose to exercise it.