The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-04-27
A DISTINCTION AND A DIFFERENCE.

1t is to be noted, however. that this provi.
sion applies to elections and not to ''tempo.
rary appointments" to fill vacancies. Section ,
or article /, as VIC have seen, expressly gives
the power of temporary appointment TO the gov
ernor and not to the Legislature The state leg.
islaturc does not have, under the federal consti-
tuition, the power to make temporary appoint.
rhcnts." This power is solely lodged in the
governor. As the federal constitution in the SUI
prcmc law of the land, and each governor swears
supreme allegiance to it, the federal and not the
state constitution must govern on this question.
II, for example, the constitution Of Pennsylva-
MIA expressly provided that the governor OF the
state should not make temporary appointments to
fill such vacancies, it is evident that this pro-
vision, being directly in conflict with the provl'
sions of the federal constitution would be void,
and it would become the duty of the governor,
when the emergency arose, to appoint. Ii is
possible to put strained and technical inter.
probation on the words in the constitution OF
Pennsylvania sin a recess between sessions" to
the effect that the nearing of this provision was
intended especially, and perhaps only, to cover
the case Of vacancy that originated after an
adjournment. The word 'recess'' is not used
in its unrestricted sense as in the federal consti
tuition, but is limited and restricted by the words
between sessions
Ii We are to indulge in the strict and technical
construction contendcd for by the opponents of
the validity of the executive appointment now
under discussion, there is ample reason for doubt
whether under this provision Of the constitution
of Pennsylvania. the governor of that state had
any authority to convene session of the lcgis.
laturc in this particular case of Mr. Quay. The
section referred to provides that the governor
shall convene the two houses in case of a vacan-
cy in the office of United States senator in a re-
cess between sessions, but the present vacancy
originated some time before the legislature of
Pennsylvania had adjourned. It is, therefore,
more than vacancy in recess between sessions;
it is vacancy during considerable period Of
the legislative session and extending into a recess
between sessions. 1t might be well argued by
our strict constructionst friends that the consti
tuition applies only to vacancies originating in a
recess between sessions and that the constitution
OF Pennsylvania never intended TO impose upon
the governor Of Pennsylvania the necessity Of
convenng Legislature soon after its final ad
iournment, which had failed after continued and
protracted efforts TO elect 4 senator, and which
by the admission OF all parties and factions to
the controversy could not possibly come together
on such basis of agreement as would bring
about the majority required to elect senator
In other words the constitution OF Pennsylvania
declared that the governor should call an extra
session where vacancy originated while the
Legislature was not in session. but the constitu.
tion never intended TO apply this provision to
legislature, which the legislature had been una.
BILE to fill.
1t may be assumed for the sake of argument,
however, that the clause does fairly include A
case of vacancy originating during a session and
continuing after an adjournment The meaning
OF the clause, however, cannot certainly be to
deny to the governor the power committed to
him by the federal constitution to make ten =
porary appointments II evidently refers to
elections and not 10 temporary appointments
until the next meeting of the legislature. II 1t
does not cover the case of temporary appoint
ments, and takes from the governor the power to
make such temporary appointments, and lodges
it in the legislature, then it is in palpablc and
direct conflict with tine federal constitution and
is therefore void, the latter is the supreme
law of the land
AS TO PRECEDENTS.
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