The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-01-24
AGAINST NAT QUAY
IS the Majority Report of the
Investigators.
PURELY ON LEGAL MERITS
Is the Case Argued by Major
ity and Minority.
PURELY ON LEGAL MERITS

| the case of NJ. S. Quay, who claims sea
in the United States senate on tn
strength Of an appointment from the gov
ernor of Pennsylvania, weree presented i
the senate today. The majority report
opposing the seating of Mr.. Quay, wa
signed by Senators Caffery, Pettus, Tur
ley, Harris and Burrows. The last
named the only Republican signing il
The minority report bears the signature
Of Senators Hoar, Chandler, PritcharI
and McComas. all Republicans, and advo
Gates giving the seat to Mr.. Quay.
| The majority report first reviews tn
circumstances under which Mr.. Quay.
! appointment was made, including tn,
failure ofthe Pennsylvania legislature Il
| elect a senator. 1t then says: "After {
vacancy in the Office of United State:
senator occurs or comes 70 pass, if tht
next legislature does not fill it, it con
! tinues to exist. 1t is the same vacancy
not new one. Now the state executive
is given power to make a temporary APP
pointment in case of a vacancy, not as
lon gas it continues or exists but only
until the meeting Of the legislature,
which is then required TO fill the vacancy.
This clearly means that the paramount
intent to have the legislature choose the
senators is to prevail and that, wi y
ever the legislature has had the oppor-
tunity to fill the vacancy, either before
or after it occurs, the executive has no
powers to appoint And when we take
the phrase IF vacancies happen by resig-
nation. or other wise during the recess
r.
concede that the general word 'therwise'
is not qualified nor limited by the spe-
cific word resignation, and that it in
cludes vacanmiesetaouurdus cmfwypp
cludes vacancies which are caused by
ux Of time and which can be fore
seen. as well as vacancies which are
caused by a casualty or the happening OF
an unexpected event and which cannot
be foreseen, still it must construed and
defined with reference to the balance of
the phrases so as TO give effect to all its
parts; and it thus results that the vacan-
cy, no matter how it is produced must
happen, take place, or begin during a re-
cess of the legislature; and this Of itself
would be decisive against Mr.. Quay's
claim:
\
construed, this clause of the constitution
affords every facility for always Keeping
the senate filled with senators who are
the real representatives of their respec-
tive states. A senator who is chosen by
the legislature of his state is likely to
be the choice ofthe majority of the eiti-
zens of his state A senator who is APP
pointed by an executive is frequently on
~ the personal or political favOrite of the
executive The legislature, as ave con-
strue the clause, chooses the senator in
the first instance. If he declines to serve
or dies before he is indicted into office,
or if, after qualifying, he dies, resigns or
is expelled, the executive may make
temporary appointment until the legisla-
ture meets again: or if, owing to changes
in state constitutions, the legislature,
which is authorized to fill the term at its
commencement. cannot meet until after
the term has commenced, the executive
can also make a temporary appointment.
Every contingency is thus provided for,
except the sole contingency that the leg
stature will fail to perform It's sworn
duty Against a contingency of this
kim the trainers of the constitution did
not intend to provide.
After discussing at length the circum-
stances under which the constitution was
framed. the majority announces its con
clusion as follows: 1--WE think that the
trainers of the constitution never con-
nor intended to provide for a
Ease where a state, by its own deliberate
act. should deprive its legislature of the
power to fill an entire term at its begin /
1ing. In our opinion, they never intend /
ID to give the executive OF state the pow
~ to fill an entire term by original ap- !
continent. unless, possibly. in a case /
where the legislature had chosen and the !
person elected had refused to accent. or /
lied before qualification. In other words, /
We conclude thatthe power Of appoint /
nent was not to be exercised unless the /
stature and was occasioned by some cas-
lalty like death or resignation"
The report then quotes numerous pre-
.edents. beginning with that OF Kensev
Johns Of Delaware. in 1874. and closing
With the case Of Henry W. Corhett of
oregon in 1885 1t then ends as follows:
The statement of these cases and pTece-
Tents shows that from the beginning Of
he government down to the present
ime the senate has never recognized +
he right Of a state executive TO make d
emp0rary appointment where the vacan-
y happened TO occur during Il session Of
he legislature. 1t shows, further. that
or seventy-five years the senate has re-
used % recognize the right OF q state
Executive TO make q temporary appoint
nent even where the vacancy happened
II occurred during q recess of the legis-
ature L the legislature. either before or
fter it occurred and prior TO the date Of
he appointment, had had an opportunity
o I'll it. The fundamental principle thus
established Is that If the legislature I
ither before or after the happening of a
acancy, has had an opportunity to I'll
t, then there IS no power IN the state ex-
cutive TO appoint The result is fatal TO
he claims Of 8ir. Quay No danger nor
vii has resulted 70 the government from
he enforcement Of this principle. We
therefore, submit that me senate. for its
WI honor and dignity. should stand by
IS previous solemn and deliberate reefs
ons."
The minority reports takes the opposite
lew. Quoting section 5, Article Z. on cor
utution. the minority say tIlat the fail
Re OF the governor 10 call the legislature
1getae~ IN Il cenagor d9es not act 10
eprive the governor or the power of ap-
Ointment Referring to the consdtu-
o1al provision. the uestien IS asked.
Does the language of the constitution af
be United States mean Just what the
onstitusioa q the commonwealth OF
says: In c8se OF a yvacaacv
ghe of1ce q United States sen9ter IN q /
scess between sessions or does Il mean