The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-01-23
FIVE TO FOUR.
Two Reports on Quay Case Sub
mitted to Senate.
Majority FavOrs Keeping Him
Out of That Body.
MAKE A STRONG CASE.
A Long List of Precedents Is
Cited.
One Republican Joins With
the Democrats.
MAKE A STRONG CASE

Washington, Jan 23.-The reports of
| the committee on privileges and cleo
tions in the case of NJ. S. Quay, who
claims a seat in the United States SEN
ate on the strength of an appointment
from the governor of Pennyslvania,wer
! presented in the senate today. The
majority report, opposing the seating
| of Mr.. Quay, was signed by Senators
Caffery, Pettus, Turley, Harris and
! Burrows, the last named the only Re
publican signing it. The minority re-
port bears the signatures of Senators
Hoar, Chandler, Pritchard and McCom-
as, all Republicans, and advocates CIV
| ing the seat to Mr.. Quay.
| The majority report first reviews the
| circumstances under which Mr.. Quay
appointment was made, including the
| failure of the Pennsylvania legislature
to elect a senator 1t then says:
| After a vacancy in the office of Unit
! ed States senator occurs or comes to
/ pass if the next legislature does not fill
! it, it continues to exist. 1t is the same
| vacancy, not a new one. Now the state
| executive is given power to make
| temporary appointment in case Of
| vacancy, not. as long as it continues or
| exists, but only until the next meeting
| of the legislature, which is then re-
| quired to fill the vacancy. This clearly
| means that the paramount intent to
| have the legislature choose the senators
| is to prevail, and that, whenever the
| legislature has had the opportunity to
| fill the vacancy, either before or after
| it occurs, the executive has no power
| to appoint. And when take the
| phrase if vacancies happen by resigna-
| ton, or otherwise, during the recess of
| the legislature of any state if We con-
| cede that the general word otherwise
| is not qualified nor limited by the
| specific word resignation and that 1t
| includes vacancies which are caused by
| effiux of time and which can be fore
| Which
] caused by a casualty or the happening
! of an unexpected event and which can
| not be foreseen, still it must be con-
Strued and defined with reference to the
| balance of the phrase so as to give
effect to all its parts; and it thus re-
| suits that the vacancy, no matter how
it is IlIsoduced, must happen, take place,
| or begin during recess of the iegls-
| lature; and this of itself would be de-
cisive against Mr.. Quay's claim"
Continuing, the report says:
! Thus construed, this clause of the
constitution affords every facility for
| always keeping the senate filled with
| senators who are the real representa-
| tives of their respective states. A SEN
! ator who is chosen by the legislature of
| his state is likely to be the choice of
! the majority Of the citizens of his state.
A senator who is appointed by an ex-
ecutiVe is frequently only the personal
/ or political =favOrite of the executive.
| 1.-The legislature, as We construe the
| clause, chooses the senator in the first
/ instance. 1t he Gecn1eS TO serve or Q1eS
before he is inducted into office, or If,
| after qualifying, he dies, resigns, or is
expelled, the executive may make
temporary appointment until the 1egis
| lature meets again; or if, owing to
/ changes in state constitutions, the legiS-
| lature, which is authorized to fill the
| term at it's commencement, can not
meet until after the term has COM
| menced, the executive can also make
| temporary appointment.
| Every contingency is thus provided
| for except the sole contingency that the
| legislature will fail to perform its
| sworn duty. Against a contingency of
! this kind the trainers of the constitu-
ton did not intend to provide"
| After discussing at length the circum-
stances under which the constitution
was framed the majority announces its
| conclusion as follows:
| 1--WE think that the trainers of the
constitution never contemplated nor
| intended to provide for case where a
state, by its own deliberate act, should
deprive it's legislature of the power to
fill an entire term at its beginning. In
our opinion they never intended to give
| the executive of a state the power to
fill an entire term by original appoint
| ment unless, possibly, in q. case where
the legislature had chosen and the per-
son elected had refused to accept 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 re-
cess of the legislature and was Occa-
stoned by some casualty like death or
resignation"
The report then quotes numerous pre-
cedents. beginning with that of Kensey
| Jones' of Delaware, in 1894, and closing
with the case of Henry W. Corbett, of
Oregon, in 1888. 1t then ends as FOL
| lows:
The statement of these cases and
| precedents show that from the begin
ming of the government now to the
1na ia hoc
| ognized the right of a state executive
to make a temporary appointment
where the vacancy happened or oc-
CURED during session of the leg1sla-
ture 1t shows, further that for sew
enty-five years the senate has refused to
to make a temporary appointment, even
where the vacancy happened or oc-
CURED during a recess OF the Ieglsla-
ture IL the legislature, either before
or after it occurred and prior to the
date of the appointment, had had an
opportunity to fill it.
'HThe fundamental principle thus es-
tablished is that if the legislature.
either before or after the happening CT
a vacancy, has had an opportunity to
fill it, then there is no power in the
state executive to appoint. The result
is fatal to the claims of Mr.. Quay. No
| danger nor evil has resulted TO the gov
ernment from the enforcement of this
principle.
I'VE therefore submit that the SEN
| ate, for it's own honor and dignity,
should stand by its previous solemn and
deliberate decisions
The minority report takes the oppo-
site view Quoting section 3, article 1,
of the constitution, the minority say
that the failure of the governor to call
the legislature together to elect SEN
ator does not act to deprive the gov
ernor of the power of appointment. Re
| ferring to the constitutional provision