The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1900-03-03
The Senior West Virginia Senator
Makes a strong Argument In
Favor of Seating Quay
ON CONSTITUTIONAL GROUNDS,
Showing Right Of Governor to Ap-
point Where the Legislature
Fails to Act.
peeIal DIgpateh Q I'd InteIIIEeneer.


arguments on the Quay case that has
been heard in the senate during the dis
cusslon Of the claimants righe to a
seat under the governors appointment.
During the progress Of his speech sena-
tor Elklns said:
'The question presented to the senate
is one purely Of lava proper construc-
ton OF the constitutIon-and no other
element or factor should enter into its
determination. Mr.. Quay's merits or
dement's. or his personality, has moth
ing to do with the case or in reaching
conclusion.
The Intention Presented.
at was clearly the intenhSn OF the
makers of the constitution that each
state should be constantly represented
in the senate by two esnators. It pro-
vides, in the first instance, that the
state legislatures shall choose senator's:
But IL a vacancy happens by resIgna-
ton or otherwise during the recess OF
the legislature, the governor OF the
state may make a temporary appoint
ment to I'LL such vacancy. This clearly
indicates that the constitution intended
state should always have full repro.
sentation In the senate, and to insure
this ut at times, the governor is em-
powered to fill vacancies that happen
during the recess OF the legislature.
ut was the right and duty of the leg
islature during the session to fill this
vacancy. but 1t came about that the
legislature failed or refused to do so,
and adjourned, whereupon the COVER
nor filled the vacancy during the recess
Of the legislature. The vacancy not
only happened during the session. but
continued throughout the entire session
Of the Legislature and after Its adjourn
ment. The material question under the
constitution is, was there a vacancy,
and was there a recess OF the legisla-
ture, qt the time OF the appointment CT
Mr.. Quay?
The Or Otherwise" Feature.
"If SO, the case comes under the pro-
vision Of The constitution, because the
words are II vacancies happen by
resignation or otherwise during the re-
cess of the legislature The word
otherwise embraces every possible
way vacancy could happen except by
resignation. Now, this vacancy hap
pened otherwise than by resignation
It happened by reason OF the legIsla-
lures inability or refusal to elect n
senator; and this being the case, the
power OF the governor to appoint at
taches at once. and he performed his
duty under the constitution BY filling
the vacancy.
II take it that this appointment would
last only until the next meeting OF the
legislature. But suppose, ut the next
meeting of the legislature, 1t should
still refuse to elect n senator and adj
journ without doing SO. Then I hold,
under the language of the constitution,
there wouid be a vacahcy during the
recess Of the legislature which the gov
ernor could fill by appointment. The
legislature, under the constitution, has
the right to elect a senator. and the
governor has an equal right to appoint
a senator IL the Legislature falls to elect,
and this failure continues until after
the adjournment, because, in this event,
a vacancy happens or there is a vncau-
cy during The recess. not by resignation,
but otherwise and this fact author
ICES the governor to appoint.
In Certain Contingencies.
'"The provision in the constitution
that in certain contingencies the Cover.
nors OF states may appoint senator's is
n wiso one, because 1t lnsures at all
times full representation OF states in
the senate. II ten OF twenty states in
the Union should fail, on account OF
war, Invasion, or for any cause, to elect
senators, whose term had expired dur
ing the session Of the legislature. and
the right 10 appoint by he governor In
such an event being denied. It might
prove disastrous and dangerous. The
policy Of the government on the gravest
and most important questions might be
changed by the legislatures failing to
elect senators II the right to appoint by
the governor Is denied; the ratification
Of an important treaty might fail; an
important revenue bill necessary to
carry might fail.
"If the doctrine Is adhered to that in
case the Legislature fails to elect a sem
ator during Its session, the governor
cannot appoint because the legislature
had On opportunity to elect and failed,
then a legislature can, by refusing to
elect senator, defeat for six years. or
n full senatorial term. full representa-
tion OF n state In the senate. II this bo
the case, what becomes Of the plain
Language Of the constitution, that the
governor may make temporary ap.
polntmentb until the next meeting Of the
legislature? This would certainly de-
feat the plain meaning and intent Of
the constitution.
When Senate Fails to Confirm.
1--WE all know that II tho senate falls
or refuses to connrm Il nomination
made by the President. that Immediate
" upon the adjournment of the senate,
tho President cnn make the same noml-
nation during tho recess until the next