The San Francisco call., 1899-04-29
THE. APPOINTMENT OF SENATOR'S

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the Governor and that in for the executive in
huence which has committed majority OF Senators
to that plan the State OF Pennsylvania will support
President Mckinley for denomination.
AS feature in the fux and change with which Our
institutions are threatened the subject OF appointment
of Senators by Governors should be thoroughly dis
cussed and understood
The abhorrent word Treason" is creeping into
common use to characterize who discuss the al
legged principles of our Government but we assume
that an examination of the constitutional provisions
in reference the Senate may yet be carried on with
out incurring the charge of being traitor.
The constitution, article I, section 5, provides:
"The Senate of the United States shall be composed
of two Senators from each State chosen by the Leg
sature thereof for six'years and each Senator shall
have one vote. Immediately after they shall be as
sembed in consequence OF the first election they shall
be divided as equally may be into three classes.
The seats of Senators of the first class shall be
Gated the expiration of the second year. OF the sec
ond class at the expiration of the fourth year. and OF
the third class the expiration of the sixth year. so
that onethird may be chosen every second year, and
if vacancies happen by resignation otherwise, dur
ing the recess OF the Legislature OF any State the
executive thereof may make temporary appointments
until the meeting OF the Legislature which shall
then fill such vacancies"
sent, shall be deprived of its equal suffrage in the
Senate"
1t would seem that there be no two opinions
as to the origin and limitation of Governors jurs-
dicton over the appointment of Senator The plain
language of the constitution seems to settle that:
81 vacancies happen, by resignation or otherwise,
during the recess of the Legislature of any State the
executive thereof may make temporary appointments
until the meeting of the Legislature which shall
then fill such vacancies"
Ever since 1903 from time to time the exercise OF this
executive jurisdiction has been discussed in the Sen
ate In many cases that have arisen the discussion has
been upon the cause of the vacancy and legal con-
struction of the term happen" 1t has been argued
that executive jurisdiction appears and Governor
may appoint only if a Senator during his term
signs dies is expelled or by incapacty through in
sanity becomes incompetent and cannot even resign,
that being act requiring sanity. III this view OF 1t
the set and fixed of the Senatorial office is not
d happening Its beginning and end are fixed by
law. Senator Whites term, for instance, did not
happen" to end on March 3 last did the result
ing vacancy happen" Its occurrence was fixed by
law. What happens is defined by all English
lexicographers to be that which unexpectedly.
But passing by the discussion OF the right OF Gov
crnor to appoint when vacancy has not happened,
but has come about by the expiration OF the term
from the rule that the Governors jurisdiction arises
only when the vacancy occurs in the recess OF the
Legislature The constitution therein so plain that
4 ayman without knowledge of the rules OF legal
construction, cannot in its Interpretation. When
the terms OF Senators White Quay, Gray and Cannon
expired by law the sd of March, 1890 the Legis
latures OF California, Pennsylvania, Delaware and
Utah were in session and not in recess.
The first case involving the jurisdiction OF Gov
ernor to appoint a Senator arose in Delaware. In
December, 1893 George Reade, Senator from Della
ware, resigned. The Legislature met January. 1894,
and adjourned without electing Senator. The Gov
ernor thereupon appointed Mr. Kensey Johns to the
vacancy The Senate refused to seat him because the
Legislature had been in session since the vacancy
Cured and its failure to elect did not give the Gov
ernor jurisdiction to appoint. In the Senate at that
time were several members who had been members
Of the convention which framed the Federal constitu
ton and for that the decision OF this has
always been given special weight and has been held
warrant the application OF the principle of stare de-
csis to the issue.
The next leading case, in which full discussion
has been preserved was that OF Mr.. Lanman of Con-
necticut His term expired March g. 1926 On March
the Governor appointed him to succeed himself.
His credentials dated February 28, and he ap-
peared on March to take his seat at special ses-
seat on the ground that: "The Legislature of the
State, by making elections themselves, shall provide
for all vacancies which may at stated and known
periods and that the expiration of a regular OF
service is not such contingency is embraced in
the third section of the first article of the consttu
ton"
This decision acquiesced in for fifty years dur
ing which time Governors in nine States refused to
appoint fill vacancies caused by expiration of regu-
lar terms.
But in no case has the Senate seated an appointee
of Governor when the Legislature has been in ses-
sion and had chance to fill the vacancy as decided
in the Kensey Johns case.
If Quay seated it will be in violation of that pre-
cedent established by who helped make the con-
stuon and less in violation of the plain letter of
that instrument.
Against this there have been long arguments in
defense of the right of State to full representation
in the Senate In the constitutional sense the Legs
lature is the constituent of the Senator who repre-