Omaha daily bee., 1900-01-24
QUAY NOT ENTITLED TO SEAT
State Unrepresented by Failure Of Legisla-
ture to Elect, Says Majority.
PRscEOENTS IN SUPPORT OF POSITION
Minority Take Exactly Opposite view
that Constitution ContcmpIntrs
Equal Representation
of states.

of states.
WASHINGTON, Jan 22-The reports n
the committee on privileges and election
IN the case of NJ. S. Quay, who claims a sea
III the united States senate on the strength
Oh an appointment from the governor o
tenhsylVania, were presented to the senat,
today The majority report, opposing th,
seatlhg OF Mr. Quay, was signed by Sena
tors Cafiery Pettus, Turley Harris and Bur.
rows, the last named the only republican
signing 1t. The minority report bears III,
SIGNATURES of Senator'S Hoar, Chandler
FTitchard and McComas, all republicans. ant
advocates giving the seat to MIR. Quay. The
majority report first views the clrcum.
stances under which Mr. Quay's appoint.
ment was made, including the failure Of
the pennsylvania legislature to elect .
senator 1t says;
After vacancy in the office of United
states senator occurs or comes to pass. II the
next legislature does not fill it, it con
'i"ueS 10 exist. IL is the same vacancy. not
a new one. Now the state executive is
gwen power 10 make temporary appoint
ment IN case of vacancy not as long as II
continues or exists, but only until
the next meeting of the legisla-
| ture which, is then required ia
| MI the vacancy. This clearly means that
! 'ne paramount intent to have the legislature
| cuooSe the senators is to prevail and that
whenever the Legislature has had the op-
portuntty TO fill the vacancy, either before
OF after it occurs, the executive has no
power to appoint"
Opportunity for Representation.
Continuing, the report saws. ".rhrs 90,
| strued, this clause of the constitution affords
every facility for always keeping the senate
hiled with senators who are the real repre-
sehtatlVes OF their respective STATES
senator VINO Is chosen by the legislature of
MS state is likely to be the choice of the
majority of the citizens of his state. A
senator who is appointed by an executive
Is frequently only the personal or politica1
taVorlte of the executive. The legislature.
as we construe the clause chooses the sena
'or III the nrst instance. If he declines to
seINe' OF dies before he is inducted into
oihce' OF II after qualifying he dies, re-
signs or is expelled the executive NAV make
temporary appointment until the leeisIa
ture meets again; or if owing to, the
changes in the state constitutions tho
legislature which is authorized To flI tho
term at its commencement cannot meet
until atter the term has commenced the
executive can also make a temporary an
pointment.
Every contingency is thus provided for
except the sole contingency that the legisla
ture Will fail to perform its sworn dutv
Against contingency, of this kind the
trainers OF the constitution did not intend
to provide"
After discussing at leqgth the circum-
stances under which the constitution was
framed the majority announces its concIu-
sion as follows :
I'VE think that the trainers of the copsti-
tuition never contemplated nor intended to
provide for case where state BY its own
deliberate act should deprive its legislature
OF the power to fill an entire term at its
beginning In, our opinion they never in
tended to give the executive of a. state the
power to fill an entire term by original
appointment unless possibly in a case
where the legislature had chosen and the
person elected had refused to accent or died
before qualification. In other words we
conclude that the power of appointment
was not to be exercised unless the vacancy
occurred in the recess OF the legislature
and was occasioned by some casualty like
death or resignation"
Report Quotes Precedents.
The report then quotes numerous prece- |
dents, beginning with that of Kensey Johns |
of Delaware, in 1894, and closing with the
case of Henry W. Corbett of Oregon in 1898. |
1t then ends as follows:
The statement Of these cases and prece- |
dents shows that from the beginning of the |
government down to the present time the |
senate has never recognized the right of |
a state executive to make a temporary an
pointment in which the vacancy happened
or occurred during the session of the
legislature. 1t shows further that for
seventy five years the senate has refused
to recognize the right of a state executive
to make a temporary appointment even
where the vacancy happened or occurred
during recess Of the legislature if the
Legislature either before or after it oc.
CURED and prior to the date of the ap-
pointment hal had an opportunity to fill it,"
"he minority repo"t takes tk4 opposite
view. Quoting section g. article l. of the
the minority says that the fail
ure OF the governor to call the Legislature
together to elect a senator does not act to
deprive the governor of the power of ap-
pointment Referring to the constitutional
provision, the question Is asked:
Does the language of the constitution of
he United States mean just what the con-
'titution Of the commonwealth of Pennsy-
'ania says: In case of a vacancy in the
)ffice of United States senator in a recess
between sessions, or does it mean that the
vacancy must be one which comes by chance, /
20 that IL does not apply at all to the case
1f vacancy at the beginning of a term,
which does not come by chance but Is fore
seen and inevitable?"
This question is answered as follows: "If
he words have tho former meaning then all l
distinctions between cases where a legisla-
ure has been in session and those whore {
latg Ias, not
'acancies at the beginning OF a term ana l
'acancies beginning after the term itself
las begun and the Office for that term once {
He'd, are without Importance. We think ]
hat the former is the true meaning of the |
constitution. We think that it was the in G
ent of the constitution to provide, as far
s possible, that every state should have j
wo senators.
a. The constitutional convention hes I
tated between comforting tho power of ap-
ointing senators upon the executive and the .
91pt I'm Af tt,n ~.