The record-union., 1899-04-25
EXECUTIVES AND SENATORS.
AN OPEN QUESTION AS TO FILL
ING VACANCIES.
Interesting Law Points on Which
Senatorial Appointments by
Governors Hinge.

Governors Hinge.
In the first volume of Fosters Com
mertarieS on the Constitution of the
United States the Record Union" finds
an exhaustive treatise on the United
States Senate in all its phases. Under
the title, Filling vacancies in the Sen
ate" the subject is treated in detail,
and authorities are cited UP to 1899,
which was before the decision in the
Oregon case, wherein the Senate re-
fused to seat a Senator appointed by
the Governor.
At the outset of his discussion, the
author lin paragraph 20, page 4S4 of
volume ID says: 1.-The Constitution
provides that Gf vacancies happen by
resignation, or otherwise, during the
recess of the Legislature of any State,
the Executive thereof may make tenn
porary appointments until the next
meeting of the Legislature, which shall
then fill such vacancies The meaning
of the phrase happen during the recess
of the Legislature is a question which
has been the subject of conflicting pre-
cedents, and is not yet definitely set
tied. Is the expiration of the term of
hoCAolOI, WIiCIi 10 lfOl llllCu ny lUt
Legislature, either through it's failure
to meet after the ternd expires, or by its
adjournment without an election, the
happening of a vacancy which author
ICES an appointment by the State Exec
utive? In other words, is the word
happen in this connection synonymous
with the word occur or does it mean
the occurrence of an event which can
NOT he f0rQSaQ0 a nd od for NV
the calling of the Legislature in extra
ordinary session, if that be necessary.
to fill vacancy?
I'm support of the more restricted
meaning of the word happen, its advo-
Gates rely upon the ordinary meaning
of the word, which, it must be admit
ted, suggests that the event was unex-
pected; upon the surrounding words in
that clause of the Constitution by res
ignation, or otherwise the last two
words being claimed to be in accord
ance with a well known maxim of in
depreciation of the common law, re-
strlcted I'M their meaning to events of q
like character with resignation-were
they not, the words by resignation or
otherwise would be mere surplusage
and would not have been inserted and.
finally, by the theory of our form of
government which favors the emana-
tlon of political power, as directly as
may be, from the people, and makes it
seem unwise, in case of doubt, to
strengthen the Executive"
The author shows that the advocates
OF a broader power in the Executive
urge that the most important end of |
public policy is to keep the Senate al |
ways full; that the Constitution had |
this in view, lest States be deprived of |
their full representation. They rely |
upon the practical construction of the |
subsequent similar language that "the |
PRESIDENT shall have power to fill up all |
vacancies that may happen during the |
recess of the Senate by granting com
missions which shall expire at the end |
Of the next session."
Under the foregoing the power of the |
President to fill vacancies caused by the |
expiration of official terms during the |
recess OF the Senate has been recognized |
by statute U. S. Rev. Stat Section |
ll69); has been extended in practice. |
under the sanction of nine Attorney |
Generals, including Roger B. Taney.
afterward Chief Justice of the United |
states, to cases where the Senate had |
adjourned without acting on a nomina- |
ton to fill vacancy which had occur
red during its session; and is sanction |
ed by decisions of the Supreme Court |
Of Indiana under a similar cons stitu-
t1onal provision concerning powers of |
the Governor
1t Is shown that in the Montana case
OF Lee Mantle, decided August %. 1893. |
the Senate, by a vote of 80 to 80 re- |
fused to recognize an appointment by |
the Governor to fill a vacancy caused |
by the expiration of a Senator's term,
made after the adjournment of the Leg |
lslature, which met after the term ex- |
pired, and failed to elect a Senator. |
This decision overruled the majority re- |
port of the Committee on Privileges and /
Elections. The decisions are so con- |
ficting that the question is still open. |
1t seems that where the duration of the |
term OF Senator is determined by lot, |
but is limited by less period than six |
years, is expiration the happening of a |
vacancy which will authorize an ap- |
pointment by State Executive (Se- |
vier's Arkansas case, in ''Toft's Senate |
election cases.O 1t has been held by the |
Senate that the Governor of a State |
may appoint a Senator to fill an antici- |
pated vacancy before it occurs. as in |
Tic case vi CIldll Tracy, clIeQ by IOtt. !
Foster himself takes the view that an |
event that is provided for by law (as /
the expiration Of a United States Sena- I
tors term) is not correctly spoken of |
as happening within the meaning of |
the Constitution: for the expiration of |
the term at a date known to all men |
has no element Of uncertainty (happen-
ing) in it.
In the case of Horace Chiffon of |
Texas in 1891 the Governor had ap- /
pointed him to fill a vacancy caused by |
the resignation Of a Senator before the /
period when the resignation took effect. +
The Senate admitted the Governors |
appointee. Similar action was taken /
in the case of Robert NJ Charlton of t
Georgia, who was similarly appointed |
by the Governor. His appointment took
effect from and after the date for which |
his predecessor had resigned; but if |
this point was decided in Lanman's case
Connecticut, 1929 it was different
ruling.