Akron daily Democrat. [volume] (Akron, Ohio) 1892-1902, 1900-01-24
Reports Were Made In the u.
s. Senate.
BOTH SIDES QUOTE PRECEDENT.
Each Claimed to Have the Right on His
side--Both Construed the Constitution
In Way to Back Up Their Attitude
on the Question.

were presented in the senate. The ma
jority report, opposing the seating of
Mr.. Quay, was signed by Senators Caf.
fiery, Pettus, Turley. Harris and Bur.
rows, the last named the only Republi-
can signing It. The minority report
bears the signatures OF Senators Hoar.
Chandler, Pritchard and McComas, all
Republicans and advocates giving tho
seat to Mr.. Quay.
The majority report first reviews the
circumstances under which Mr.. Quay's
appointment was made, including the
failure Of tho Pennsylvania legislature
70 elect senator. It then said in part;
After a vacancy in the Office of United States
senator occurs or comes to pass, II the next
legislature does not I'LL II, IL continues to cx-
ist. ~ is tho same vacancy, not new one.
Now the state executive Is given power TO
make temporary appointments in case Of n va.
cancy, not rs long as 10 continues or exists,
but only until the next meeting OF the lcgsla-
ture, which Is then required to FIJI the va
cancy. This clearly means that the para.
mount intent to have the legislature choose
the senator's is to prevail, and that. whenever
the legislature has had the opportunity to fill
tho vacancy. either before or after II occurs
the executive has no power to appoint. And
when we take the phase "if vacancies happen
by resignation. or otherwise, during the recess
OF tho Legislature OF any state" II we conoode
that the general word "othorwise" IL not quail.
flied nor limited by the specific word "resig.
nntion." and that 1t includes vacancies which
are caused by effiux OF time and which can be
foreseon. as well as vacancies which are caused
by a casualty or the happening of an unex.
pected event and which cannot be forescen,
still II must be construed and defined with
reference TO the balance OF the phrase so as to
give effect to all Its parts; and II thus results
that the vacancy, no matter how II Ia pro.
duced, must happen. take place, or begin dur.
ing recess of the Legislature; and this OF
itself would be dccisivu against Mr.. Quay's
claim.
ton affords every facility for always keeping
the senate filled with senators who are the
real representatives of their respective states.
A senator who " chosen by the legislature OF
his state IL likely TO be the choice OF tho ma
jority of the citizens OF his state. A senator
who In appointed by an executive Is frequently
only the personal or political favorito NJ the
executive.
Tho legislature, as wo construe the clause.
chooses thr senator In tho first instance II
he decline, 10 serve dies before he IL In.
ductad into office; or II, after qualifying. he
dies. resigns, or Is expelled, tho executive
may make a Temporary appointment until tho
legislature neots again. or if. owing to
changes In the state constitutions the legiBa
ture. which Is authorized TO I'LL the term at IL.
term has commenced, the executive can alsu
mako temporary appointment.
Evory contingency Ii thus provided for ex
cept the sole contingency that the Legislature
will fail TO perform its sworn duty. Against
u contingency of this kind the framers OF the
constitution did not intend TO provide.
The report quotes numerous prece.
dents. beginning with that Of Kenscy
Johns. OF Delaware, in l704, and closing
with the case Of Henry w. Corbett, OF
Oregon, in 1893. 1t then read in part:
Tho statement Of these cases and prece
dents shows that from the beginning OF tho
government down to tho present time the sen.
ate has never recognized tho right of n state
executive TO make temporary appointment
where the vacancy happened or occurred dur
ing session of the legislature.
The minority report takes the oppo.
alto view. Quoting section 8, article !, i,
of the constitutional provision. the ques.
tion of the failure OF the governor TO
call the legislature together to elect u
senator does not act to deprive the gov.
ernor of the power OF appointment.
Referring to the constitutional provision
the question IL asked:
Does tha Language OF the constitution OF tho
United States mean Just what the constitu.
tion OF the commonwealth of Pennsylvania
Rays. In ease of vacancy In tho office OF
United Btates senator In recess between scs-
s1ns, or does II mean that the vacancy must
he one wnieh comes by chance. 80 that It does
not apply at all To the case OF a vacancy at the
boginning OF u term, which does not come by
chsnce, but is foreseon and inevitable.
This question is answered in part az
follows:
AL distinctions between cases where n legisln.
turo has beon In session and those whore a
legislature has not been In session, between
vacancies at tho beginning OF n term and ya.
csncios beginning after term itself has begun
and tho ofics for that term once filed are
without Importance. wo think that the for
mer Is the truo meaning OF tho constitution.
We think that 10 was tho intent OF tho oonsti.
sutton 10 provide, as far as possible. that every
state should have two senators.
FirBt-Thc constitutional convention hesi-
tatod between comforting tho power of ap.
pointing senator's upon the executive and the
legislature OF tho state In tho beginning. Like
tho legislature, the executive OF the state was
supposed 10 represent the will OF tho people
Under the constitutional nrrang gemonts then
existing. he appointed all state officers and mp.
pointed Judges, who held their office for life.
10 there Is no reason 10 suppose that they con
aidored the executive an unit instrument for
such appointment. And thoy settled tho aucs.
sion by giving the power OF permanent ap.
pointment to tho legislature, and of tempo
Tary appointment TO the executive.
Second-Wo conceive no reason likely to
have influenced the framera OF the constltu.
tlop FOR making n distinction between cases
of vacancy occurring In one way or ~ one
time and vacancies occurring In any other
way or at any other time. The oflico OF sena.
tor may b0 at any time OF infinite Importance
- tho interests Of state, Upon single vote
may often depend, and sometime has do.
pended, the fate Of measures which would
bring prosperity or misery into evory work.
shop and almost every family In Pennsyiya.
Mia.
The report read further in part.
The language OF tho very clause In question
cannot he construed ~ the opponents Of Mr.
Quay would construe II, or In any other way
than tho undersigned construe II. without do.
stroying It's own purpose. IL there be na
power In the executive OF Pennsylvania to m,
point a successor to Mr.. Quay under this
clause Of the constitution, there Is no power
In the legislature to choose such successor
antii the end OF tho torm and In every case
where senator dies or resigns, where the
legislature IL not In session. or where, after
such death or resignation, the legislature has
met and adjourned without choico, or
wherever. at the beginning OF term. the va.
oancy remains untitled. II must remain un,
nilsd until tho end OF the six years, accordln,
TO the logic OF the majority OF the COMMITTEES.
The minority then gave considerable
attention TO the various cases and con.
cluded as follows:
Tho case OF Allen. OF Washington, was do.
cided with the LeeMantie case and without
argument. decision to which Mr.. Beckwith,
OF Wyoming. submitted without further con,
test. At that time there Whs nm earnest al.