Bismarck weekly tribune., 1900-01-26
THECASE0FQUAY
Majority and Minority Commit
tee Reports Are l.aid Before
the Senate.
Majority Report Holds Senate
Not Responsible for Legisla-
tive Negligence.
Every Contingency but This One
Provided Against in the
Constitution.


of the committee on privileges and cleo
tions in the case Of NJ. S. Quay, who
claims IL seat in the United States sen-
ate on the strength of an appointment
from the governor of Pennsylvania, have
been presented III the senate. The ma
jority report opposing the seating OF
MIR. Quay was signed by Senators CAT
fiery, Pcttus, Turley, Harris and Bur-
rows, the last named the only Republi-
can signing it. The minority report
bears the signatures of Senators Hoar,
Chandler, Pritchard and McComas, all
Republicans. aud advocates giving the
seat to Mr.. Quay.
The majority report reviews the cir
ounstanccs under which Mr.. Quay's ap-
pointment was made, including the
failure of the Pennsylvania legislature
to elect a senator. It then says:
Only Until the Next Meeting.
After vacancy in the office Of United
States senator occurs Or comes to pass,
if the next legislature does not fill it, it
continues to exist. 1t is the same va
cancy, not IL new one. Now the state
executive is given power to make tempo
rary appointments in case Of a vacancy,
not as long us it continues or exists, but
only until the next meeting Of the legis-
lat,lre, which is then required to fill the
vacancy. This clearly means that the
paramount intention to have the legisla-
turc choose the senators is to prevail,
and whenever the legislature has had
the opportunity to fill the vacancy either
before or after it occurs, the cxecu-
tive has no power to appoint,
And when we take the phrase,
s'if vacancies happen by resignation or
otherwise, during the recess Of the legis
latllre of any statc,' if we concede that
the general word "othcrwise' is not
qualified nor limited by the specific word
"resignation" and that it includes va
cancics which are caused by etfiuX of
time and which can be foreseen, as well
as vacancies which are caused by cas-
ualty or the happening Of an expected
event and which cannot be fOreseen,
still it must be construed and defined
with reference to the balance Of the
phrase so as to give effect to allits parts;
and it thus results that the vacancy, no
matter how it is produced, must happen,
take place or begin during a recess OF
the legislature, and this in itself would
be decisive against Mr.. Quay's claim. >
No Intention to Provide For This.
''Every contingency is thus provided
Tor, except the sole contingency that tho
legislature will fail to perform its sworl
duty. Against a contingency Of thi
kind the Trainers Of the Constitution die
not intend to provide.'
After discussing ut length the circum
stances under which the Constitution
was framed, the majority announces it,
conclusion as follows:
"We think that the trainers of tn
Constitution never contemplated nor in
tended to provide for case where
state by it's own deliberate act shoul'
deprive its legislature Of the powe
to fill an entire term at it
beginning. In our opinion they neve
intended to give the governor Of stat
the power to fill the entire terms b
original appointment, unless possibly il
a case where the legislature had chose
and the person elected had refused t
act or died before qualification. I
other works we conclude that the powe
Of appointment was not to be exercise
unless the vacancy occurred in a reces
of the legislature and was Occasioned
some casualty like death or signation.
The report then quotes nulneror
precedenrs, beginning with that of Kel
sey Johns of Delaware, in 1894, al
closing with the case Of Henry w. Co
bett of Oregon III 1898.
The minority report takes the opposi
view. Quoting Section 3, Article
the Constitution, the minority say th
the failure of the governor to call Il
legislature to elect a senator does not a
to deprive the governor of the power
appointment.
THE P0RFRVS CASE