The Delawarean., 1900-05-02

furtherance of and not opposed to ths
same, and yet the opponents of the
governors power advocate a construc-
tion directly opposed to this marked
intent
Then comes, as if still further clearly
impressing and declaring the intention
TO provide full Senate, the provision
under discussion, in these words:
y If vacancies happen by resig-
nation, or otherwise, during the recess
of the Legislature of any State, the ex-
ecutive thereof may make temporary
appointments until the next meeting OF
the Legislature, which shall then fill
such vacancies.
The makers of the Constitution used
the language most aptly. If the pur-
pose had been to limit the governors
power to fill vacancies only which be-
gan in recess and not to include Those
which began before but continued into
recess, they would have used words de-
fining that intent and, instead of the
language used, would have said, IF
vacancies shall begin or originate in
recess" Both the words begin" and
Originate are left out and the woru
happen" used, and so with the intent
that it should include the duration of
the vacancy till filled.
Senator Turpie, in discussing the
question in the Mantle case in 1898, ex-
presses himself ON the use of the
words ''by resignation or otherwise" as
follows:
The original draft of the instru-
ment did not contain the words "by
resignation or otherwise" Having
done away with the obstacle in the use
of the word happen" the opponents
of this construction take refuge in the
phrase "by resignation or otherwise. {"
They claim that it is limitation upon
the power of the governor, and that
Dhe vacancy which happens is one that
is occasioned by resignation, or as they
claim it, otherwise" meaning by SINH
lar modes TO resignation, something
like resignation.
We of the majority say that "other-
wise" includes every other casualty by
which "a vacancy should occur; every
other casualty, no matter what it may
be. Otherwise" means other ways +"
Gentlemen may examine Johnson, the
contemporary authority with the Con
Stitution of the United States, the near
est contemporary, the first of English
photographers, not the last nor the
least in learning He defines the term
"otherwise' to mean ''other ways, in
manner, not in a similar way, not in
the same way, not in a way like the
first named" And the real question in
this debate is not how vacancy occur
red, but whether it exists.
The giving to the governor the power
to fill vacancies was in order that that
body should be full, There could have
been no other purpose in the minds of
the trainers of the Constitution, and
that being so, and the purpose for the
granting of that power, how can it be
successfully contended that in cases
like the present one that power shall
be or is withheld? If the power was
given that the Senate might be kept
full, then certainly that reason should
govern not in class OF vacancies. but
in all.
The Senate, besides its Legislative
powers, has in a degree executive func-
tions. Our foreign representatives,
judges of the Federal Courts, and all
other officers of the Government can
only be appointed by the advice and
consent of the Senate"
In these appointments, as in other
matters, the President is entitled to
have the advice of the Senate, not a
part of that body, but that body as
created and authorized by the Consti-
tution-two from each State. This
body otherwise composed is not, can
mot be, such a Senate as is provided
for by the Constitution, neither is any
representative in this body from a
State which is less than two, such a
representation as is provided by the
Constitution that that State is entitled
to. Each State is guaranteed two Sen
ators, and it is not an answer to diff
ferent condition to say that by the fail
ure of Legislature to do its duty that
therefore all the people of the State
shall suffer, and they and the Govern
ment shall be deprived of the right
guaranteed to both by the Constitution.
In the Bell case in 1879 Mr.. Edmunds
said:
"The Constitution is looking to have
each State represented in this body all
the time, and by some method that til
Constitution provides, and hooks to do
it, and therefore when it uses the word
otherwise it uses a comprehensive
term, so that in whatever way a State
ceases to have opportunity to express
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