The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-04-25
PenPose in Behalf
OF Mr.. Quay

OF clause OF section ! OF article |, anU IL VIII
be difficult TO detect purpose so far OF any
opCning for objection to the validity of executive
appointments. On the contrary, it is evident,
in view of the paramount purpose OF the Consti'
tuition and the express words OF the provision
ITSELF that every effort should be made TO pro-
mote the preservation Of irll senate, and in
two cases to which have referred, the words
have actually been strained, and properly SO, to
secure the purpose.
shall now proceed to consider briefly that
part Of clause Of section which reads as fol-
lows:
"Immedatcly after they shall be assembled in
consequence of the first election they shall be
divided as equally as may be into three classes
The seats OF the senators of the first class shall
be vacated at the expiration OF the second year.
of the second class at the expiration of the fourth
year. and of the third class at the expiration of
the sixth year, so that one.third may be chosen
every second year"
We herein reach the first word involved in the
dispute. The words "vacated" and "vacancy'
are the subjects OF the argument. Certainly
there cannot be any doubt about the meaning
of the word vacated" in this conjunction. It
is distinctly stated by the words OF the Const-
tuition that the seats of senator's vacated at
the expiration Of the term foi which they are
elected. In the beginning these terms were de.
termined by lot. After they have been once es.
tablished, they are vacated at the expiration of
the terms, which will occur upon days fixed
and certain.
There can be no difference Of opinion as to
the meaning Of the constitution in the use of
the word vacated" The senatorial term is
vacated" at the expiration of the term The
seat being Vacated the logical consequence
is that there is vacancy. vacancy should
originally be filled by the legislature by the
election of senator fox full term OF six
years, as we have seen; but where that does
not occur or can not occur for any reason,
the office remains vacated" vacancy exists,
and the purpose Of the constitution is that il
shall he filed uy election by the legislature,
for the full term, or by temporary executive
appointment until the legislature meets. 1t was
an old contention, and in fact. it was the first
limitation attempted to be set up against the
right Of the governor to appoint, that the gov
crnor could not appoint to fill a vacancy hap
pcning at the beginning OF senatorial term.
Happen" was construed to mean vacancy
happening in a term after that term had once
been filed. This view undoubtedly prevailed at
one time, but. as a matter of fact, the senate
has allowed many appointments by governors
at the beginning of senatorial terms.
Beginning with the case of Cooke, of Tennes
see, in 1897, and coming down to the case OF
Pasco of Florida in March, 1898. there have
been thirteen cases in which the governor has
appointed senator to take As seat at the
beginning of senatorial term, and in each
case the senator has been admitted to his seat
BY these precedents therefore, the senate has
utterly destroyed the old notion that a vacancy
not possibly happen in term unless that
very term has once been filed. The ingenious
reasoning by which a term vacated by its ex-
piraton was declared to be not vacant because
il had never once been filed, illustrated by
many arguments, is now of little except as
marking the futity Of such abstruse specuations
and as indicating another stage in the progress
of a liberal construction OF the constitution in
order that the senate may be kept illled.
The remaining paragraph of the clause al
ready quoted reads as follows:
"And if vacancies happen by resignation, or
otherwise. during the recess OF the legislature
of any state. the executive thereof may make
temporary appointments until the next meeting
of the legislature, which shall then fill such
vacancies.
Almost every word in this simple paragraph
has been the subject of argument and of refine
ment and speculation. The contention begins
over the word vacancy" II was obvious to
the trainers of the constitution that vacancies
might occur which would defeat the intention
of always having two senator's from each state,
and, therefore. find this provision. Legisla-
lures might not be in session, and vacancies
might naturally be expected to occur at such
periods. 1t mign, be nconyenient and needless.
Il
for special session prior to the time OF its
regular meeting, and, therefore, il was provided
that the executive might make temporary ap.
pointments, and il is under this part of the
clause last quoted that the governor of state
| derives his power to fill vacancies regardless OF
| any state constitution law.
! To the ordinary man /. Is clear that Eva.
cancy" is the state of being empty or untitled.
| The natural and common-sense meaning of the
1inI 70, 4, tl,,t
any office without an incumbent is vacant with,
| in proper legal or constitutional construction.
| Such office is certainly not filed and no in
cumbent exercises the functions Of the office.
| II it is not filled, in what condition does q.
| exist, il it is not vacant? Black and Bouvier
| define the word vacancy" to be "a place which
| is empty" Webster defines il as "the state OF
| being destitute an incumbent" In fact, il
| may he very seriously questioned whether any
authority can be cited upon which lawyer
would he willing TO rely that takes different
| view Of the question. In the light of every
authority the word "vaCanCy" applies to every
| office without an incumbent which the Cover
nor has tho power to fill, no matter how the
| vacancy is created. that the conclusion neccs
sary forces itself upon MS that the governor
has the right to fill any vacancy that may hap
| pen from any cause which exists after the legis
| lsture has adjourned.
John Quincy Adams stated that he believed
| in relation TO offices that every happens tC
| he vacant which is not full, and that, he be
| ieved was the meaning and sense of the con
| stitution whether the vacancy occurred from
casualty, the regular course of events, the ex
| pratiOn Of term, or other cause. | take it thai
there can he no dispute among sensible men az
| to the meaning of the word vacancy" if w
take it standing alone. 1t refers TO an Office
as ! have said, without an incumbent; anC
| taken in connection with the similar word al
| ready referred TO and used a few lines above
the word Vacated it is clear that upon tht
| expiration of senatorial term the Office is va
Gated and the vacancy exists.
So far. therefore, in our progress in reading
the words of the constitution, there would seen
no ground for dispute. But approach th
next word, and there the opportunity is appar
| entity given for the food OF argument and dis
uuisiton which has obscured this subject Tn
vacancy must "happen," Those who deny tn
power of the governor to fill the present va
cancy give the word "happen a restricted
technical meaning, and say that it refers onl.
TO the point of time at which the vacancy be
gan This point Of time, it is alleged, is mo
mentary and connected only with the beginning
OF the event II is stated that the word hap
pened means originated, and it is argued tha
in this sense alone the word happen wa
used An attempt is made sharply to define tn
word 'happen" and to deny that il covers an,
part OF the duration of the event happening
This construction, however, of the word chap
pen" is forced and technical 1t disregards som
oi the most ordinary uses of the word chap
pen, which include duration of the event
| hesitate to go into the battle of dictionarc
which has been witnessed time and time agal
upon the floor of rs senate There is not
dictionary OF received authority that does no
define "happen" being ito take places 4
come to pass; to be met with; to fall out; T.
meet with" Examples need not be multiple
| to show that at east one OF the common sens
| II