The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1899-04-27
THE SENATE AND MIR. QUAY.

Senator Frye Is reported as saying in New
York. II cannot speak for all the sena-
tors, but | know that I shall vote to seat
Mr.. Quay" Senate Frye is a good lawyer,
and his positive assertion that he will vote
to seat MIR Quay shows that his mind is
clear on the legal and constitutional ques-
ton involved regarding Mr.. Quay's right TO
the seat. The question is a close one, and
while the decisions of the Senate are some
what conflicting they furnish strong sup
port for the position taken by Senator Frye.
The question arises under the following pro-
vision of the Constitution:
II a vacancy happens by resignation or
otherwise during the recess of the Legisla-
ture Of any State the executive thereof may
make temporary appointments until the
meeting of the Legislature, which shall fill
such vacancies.
The question turns on the construction to
be given to the word happens" One view
is that the Governor of a State can only
make an appointment to fill a senatorial
vacancy which originally happens" or oc-
ours during the recess of the Legislature.
that such appointment only holds good until
the next meeting of the Legislature there
~ aA4 bAaN IL iN tN5ARaANAAN NJOAAAS
without electing a senator the Governor has
no further power to appoint. Another view
IS that If the Legislature adjourn without
electing the vacancy happens again dur
ing the recess and may be filled by appoint
ment. In the present case Senator Quay's
term expired and the vacancy happened"
on March 4, 1899, while the Pennsylvania
II n-sc1o $3.50 L. .ncri1o 10 u,on oIa0-lx,
the duty'of the Legislature to elect a sena-
tor, but as 1t adjourned without doing so
the question is has the vacancy happened"
again? In answering this question II must
be remembered that it is the intention of
the Constitution that each State shall berep-
resented all of the time by two senators, and
the fact that it gives the Governor power
to fill a vacancy happening during a recess
of the Legislature shows that it was not
intended that any State should at any time
be short one senator. The evident purpose
of the Constitution is to nave the Senate
always full. This is as much the interest Of
the country at large as it is of a particu-
for the whole country.
The word happens" is used elsewhere in
the Constitution regarding appointments to
fill vacancies. Thus it provides that THE
President shall have power to fill up all
~acancies that may happen during the re-
cess OF the Senate by granting commits
sions, which shall expire at the end of their
next session." Under this provision the
President exercises the u%ndisputed power Of
filing offices which have a term fixed by
law that expires in the recess of Congress.
II the appointment is one that requires con-
firmation by the Senate and is not con-
firmed at the next session OF the Senate,
the President may fill the vacancy again.
At least two attorneys-general of the United
States, and very distinguished ones. Roger
B. fancy and William Writ, nave discussed
the meaning of the phrase vacancies that
may happen during the recess" with refer
ence to the power of the President to fill
an Office which is vacant in the recess. be-
cause the Senate adjourned without acting
on a nomination. the original vacancy hav-
ing happened during the session. Both of
these eminent jurists agreed that the term
happen" is equivalent to happen TO ex-
ist." or IF it come 10 pass that there be
a vacancy" Mr.. fancy. afterwards chief
justice. said: THE Constitution was formed
for practical purposes, and a construction
that defeats the very object of the grant
intention of the Constitution that the offices
created by law should always be full"
From the First 10 the Forty-ninth Con-
sress. that is from 1890 to 1855. there were
12S cases of senator's appointed by Gov
ernors of States. a considerable number OF
which were TO fill continuing vacancies
or vacancies running beyond the session OF
a Legislature. Not all OF these were ad-
mitted 10 their seats. but many were. the
action OF the Senate being controlled by the
peculiar circumstance OF each case. The
first case that occurred after the adoption
of the Constitution was decided against the
claimant. George Read. a senator from
Delaware. resigned his seat in December.
1873, during the recess of the State Legis-
lature. The Legislature met in January,
and adjourned in February. 1894, without
electing a senator. On the 18th OF March
the Governor OF Delaware appointed Mr..
kensey Johns TO ill the vacancy,
but the Senate refused to admit him
10 the seat because a session OF the Legis-
lature had interviewed between the resigna-
ton of Mr.. Read and the appointment OF
Mr.. Johns. The precedent thus established
was followed in some cases and disregarded
In others. according to the facts and cir
cumstances of each case. In the case OF
Senator Bell. OF New Hampshire. which oc-