The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-01-24
Majority OF Committee on Privileges
and Elections Opposed To seat
ing the Pennsylvanian.
LEGAL PHASES EXPLAINED
AND THE CONTENTION MADE THE
APPOINTMENT WAS ILLEGAL.
Minority Report I'm Favor of Permit
ting the senator to Take His Seat
-Synopses of Arguments.

WASHINGTON, Jan. 23.-The reports OF
the committee on privileges and elections
In the case of NJ. s. Quay, who claims a
seat in the United States Senate on the
strength of an appointment from the Gov
ernor of Pennsylvania. were presented in
the Senate to-day. The majority report.
opposing the seating OF Mr.. Quay. was
signed by Senators Caffery, Pettus Turley,
Harris and Burrows. the last named the
only Republican signing it. The minority
report bears the signatures of Senators
Hoar. Chandler. Pritchard and McComas.
all Republicans. and advocates giving the
seat to Mr.. Quay. The majority report
first reviews the circumstances under which
Mr.. Quay's appointment was made. includ-
ing the failure of the Pennsylvania Legis-
lature to elect a senator. 1t then says:
After vacancy in the office of United
states senator occurs or comes to pass,
IL the next Legislature does not fill IT. IL
continues to exist. 1t is the same vacancy
not new one. Now the state executive
is given power TO make temporary appoint
ments In case Of vacancy. not as long
as IL continues 10 exist, but only until the
next meeting OF the Legislature. which Is
then required to fill the vacancy. This
clearly means that the paramount intent
TO nave the Legislature choose the senators
is to prevail and that whenever the Legis-
lature has had the opportunity 10 NIL the
vacancy. either before or after IL occurs.
the executive has no power to appoint.
And when we take the phrase If vacancies
happen by resignation, or otherwise. during
the recess of the Legislature of any State
IL we concede that the general word other
wise is not qualified nor limited by the
specific word resignation. and that IL in
cludes vacancies which are caused by eff
fiux Of time and which can be foreseen.
as well as vacancies which are caused by
a casualty or the happening OF an unex-
pected event and which cannot be FORE
seen, still IL must be construed and de-
fined with reference to the balance OF the
phrase so as to give effect to all its parts;
and IL thus results that the vacancy, no
matter how 1t is produced. must happen.
take place or begin during a recess of the
Legislature; and this of itself would be
decisive against Mr.. Quay's claim"
Continuing. the report says: THUS con-
strued, this clause OF the Constitution af-
fords every facility for always keeping the
Senate filled with senator's who are the
real representatives Of their respective
States. senator who is chosen by the
legislature of his State Is likely to be the
choice of the majority of the citizens OF
his State. A senator who Is appointed by
an executive is frequently only the per-
sonal or political favorite Of the execu-
tive. The Legislature. we construe the
clause, chooses the senator In the first In
stance. If he declines TO serve or dies be-
fore he is indicted into Office, or II. after
qualifying. he dies, resigns, or is expelled
the executive may make a temporary APP
pointment until the Legislature meets
again; or If, owing to changes in state
constitutions, the Legislature which is au-
thorized to fill the term at its commence
ment cannot meet until after the term has
commenced the executive can also make a
temporary appointment. Every contingency
is thus provided for except the sole con-
tingency that the Legislature Will fail TO
perform its sworn duty. Again contin-
Constitution did not intend TO provide
After discussing at length the circum-
stances under which the Constitution was
framed the majority announces Its conciu-
sion as follows:
1--WE think the trainers of the Constitu-
ton never contemplated nor intended 10
provide for a case where State, by It's
own deliberate act, should deprive It's Leg
islature of the power TO NIL an entlre term
at its beginning. In our opinion they never
intended to give the executive or a state
the power to- fill entire term by original
appointment, until, possibly In case where
the Legislature had chosen and the person
elected had refused to accept or died before
qualification. In other words. we conclude
that the mower of appointment was not 10
be exercised unless the vacancy occurred In
the recess of the Legislature and was occa-
stoned by some casualty like death or re-
signation."
The report then quotes numerous prece-
dents, beginning with that or hensey
Johns of Delaware, in 1874 and closing with
the case OF Henry w. Corbett, OF oregon
in 1895 1t then ends as follows:
.sThe statement OF these cases and prece-
dents shows that from the beginning or the
government down TO the present time the
Senate has never recognized the right OF a
state executive TO make temporary APP
noIntment where the vacancy happened or
occurred during a session OF the Legisia-
ture II shows further, that Tor seventy
Ave years the Senate has refused TO recog-
nize the right of a state executive 10 MAKE
a temporary appointment, even where the
vacancy happened or occurred curing re-
cess of the Legisiature II the Legislature.
either before or after II occurred and prior
TO the date of the appointment had had an
opportunity TO I'LL IT The fundamental
principle thus established Is that the
LEGISLATURE either before or after the nap
nening of a vacancy, has had al opportu-
nitv to fill It. then there Is no power In the
state executive to appoint The result Is
fatal TO the clp.ms of Mr. Quay. No danger
nor evil has resulted TO the government
from the enforcement OF this principle.
we therefore submit that the Senate. Tor
its own honor and dignity. should stand py
Sc nrevious solemn and deliberate deci-
sions." 49,.
The resolution presented with the ma
ioritv report reads: THAT Matthew >.
QUAY is not entitled TO take his seat In
this body as senator from the State OK
Pennsylvania.