Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-05-18
Fact. Law md Morals.

1t is physical fact that Mr. Clark Of
Montana occupied seat in the Senate for
nearly six months. drawing the salary, ex-
ercising the prerogatves and casting the
vote of a senator. 1t is also a fact that no
action by the Senate can eliminate this
ord. That is the extent of the ground upon
which Mr.. C!ark's partsans rely to force
the Senate now to accept his new creden-
tials. urging that it is impossible to ignore
this record and therefore to declare the
seat vacant from the beginning
Indeed the case presents a dilemma
either horn of which it is difficult to grasp
firmly. If the legislatures choice Is now
declared to have been Illegal because fraud
ulent matter of morals Mr.. Clark held
his seat by fraud. and it is proper for the
sake of good morals so to declare whatever
may be his present status. This assuredly
establishes the doctrine that the legisla-
ture failed to observe the forms required by
the Senate in the election of it's members
and places the case the basis of the
Quay case, where the legislature, unaffect-
ed by charges of fraud. maintained a sup
posedly honest deadlock. Would Mr.. Quay
have been entitled to his seat in the Senate
if he had won by bribery, and then. after
bribery had been proved against him. re-
signed and accepted new credentials from
IFS SONeIHoT. Is NIL SldTh 10 De TeWdTueu
for his nefarious practices while Mr.. Quay
is punished for his failure to win by SINH
lar practices?
When the House unseats member on
contest it permits him to depart with
record of membership pending investigation
and with the salary for the period he has
served. But it pays to the incoming mem
Der. the successful contestant, a salary for
the full period of his term. from the begin
ming of the Congress. not from the time he
takes his OATH on the ground that 1t was
through the fraud of another that he was
prevented from attending the sessions and
earning the salary. Thus the practice of
the House suggests that while the physical
fact of membership pending investigation
cannot be ignored the legal rights of the
honestly elected candidate are not obliter-
ated by fraud.
The rule of contests in the House offers
analogy which is instructive in consid-
ering the Clark case. The ordinary prOvi-
sion of law is that when a vacancy occurs
in the House a special election shall be held
to fill it. A member whose title is assaied
cannot create such a vacancy by resigning.
The House proceeds with the consideration
of the contest though he had retained
his seat. Otherwise he might, when he
Clark, nullfy the proceedings by his volun-
tary retirement and. by appealing to the
ballot, secure perhaps a further fraudulent
title. thus wiping out the rights of the
contestant.
Thus while the House recognizes the fact
of physical membership it carefully guards
the rights of contestants. The Senate has
in this case no such rights to guard. But
the principle of membership remains and
it would seem to be the part of wisdom and
dignity, doubtless of safety as well. to pros
coed TO declare that the Montana election
was void because of fraud and that while
in fact Mr.. Clark did occupy seat in the
Senate for a few months he did against
the requirements of the law and the morals
of membership and that he cannot now
cure his own fraud by an act which savors
in itself of fraud and does not nullify a
single item Of the allegations against him.