The age-herald., 1900-01-24

to provide for case where a state. by its own deliberate act should deprive it's legfs- lature of the power to ill an entire term at Its beginning. In our opinion they never intended to give the executive of a state the power to fill an entire term by original appointment unless, 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 power of appointment was not to be exercised unless the vacancy occurred in the recess of the legislature and was oc- casioned by some casualty like death or resignation"
 Numerous PrecedeAts
 The report then quotes numerous prece- dents, beginning w,th that of Kensey Johns, of Delaware. in 17s4. and closing with tho case of Henry w. Corbett of Oregon, in lS96, 1t then ends us follows:
 ''The statement of these cases and prece- dents shows that from the beginning of ehe governmeuet down to the present time the senate has never recognized the right of a state executive to make e temporary ap- pointment where the vacancy happened or occurred during q session of the legislature. It shows further, .ihat for seventy-dive years the senate has refused to recognize the rigfp. of tltate executive to make temporary appointment even where the va cancy happened or occurred during a recess of the legislature If tine legislature either before or aftete 1t occurred and prior to the date of the appoipment. had had an oppor- tunity to fill it.
 ''Illa fundamental principle thus esfab- lisI-ed Is ehat if tne legislature, before CT after tine Happening of 0 vacancy, has had an opportunity to ffl it, then there IS no power n the state executive to appoint. The resul. is fa,.al to MT Quay. No dan ger or evil tlas resulted to the government From ahe enforcement. of t.ts principle.
 "WQ. therefore submit tlai tLlp senate, for Us own honor and digsltty, should stand by its previous solemn and deliber- ate dec.s.on.'
 The Majority Report
 Tue minority report takes the opposite view. Quoting eecticn 3, article 1, of the cons l1.lI.on, the minortty says: "The fadi- ure Of Iie govt:nor to clA the legislature together to elect senator does not de- prive the governor of the power of appo5 t. meIl.." Referring to ehe constitutional provision, the question is asked:
 Does the language of G;e coSi9tl. Li.fon of the United States mean just what the conri-itution of &lle commonwealth of PeIl.- sylyania says:
 Tn case of vacancy dn the office of Urhted States senator in recess between sessions, CT does tt mean that the vacancy must be one wEdch comes by chance, so that 1t does not apply at all to the case of a Nuoancy at I-le beglnning of term
 
 fo eseen sLsd inevitable
 Tue question is answered as follows: of the words have the former meaning, then all distinction between cases where a leg sSlature has been tn session and those where legislature has not been In session be- tween vacancies at She Beginning of q term and vacancies beginning after the term itself has begun and the office fer that term once filled, are without importance. We p1dnk that the former IS the true mean ing of the constitution. We think that fl was the intention of the constitution to provide as far as possible that every state should nave two senators.
 ''First-The constitutional convention hesitated between conferring the power of appointing senators upon the executive and the legislature of the state in the begin ming. Like the legislature, uhe executive of the state was supposed to represent the will of the people. Under the consti- tutiona1 arrangement then existing he ap- pointed all state officers and appointed judges, who held their office for life. So there Is no reason to suppose that they considered the executive unfit instru- ment for sudl appointment. And they set tied the question by giving the power of permanent appointment to the legislature and of temporary appointment to the ex- ecutlye.
 Can Conceive No k,
 "Second--We can conceive no reason
 
 constitution for making d distinction be- tween cases Of vacarlcy occurring In one way or at certain time and vacancies oc- curing in any other way or at any other time The office of senator may be at time of infinite imoo.sance to the inter- ests Of a state. Upon sGngie vote may often depend, and sometimes las de- pended, the fate of measures which would bring prosperity or misery into every wSrksohp and almost every family in Pennsylvania.
 I've do not Believe Ehat when the con stitution was enacted it would have oc- cured to anybody that If a senat tor died within a week of the adjournment of the legislature, or at a time when there were fafee parties dn the legislature, who could not agree. or at time vixen the .wo houses formally made an election concurrent vote were of ways of rIlsnking in polt,ics so differert that they could ncr De reconc.led; that the state must remain unrepTesented until new Legislature st.ouGd be chosen.
 They mea,t as we believe, r.at for the 'aLNereSt or the stata aild the interest of tine whole country the esiiere should el ways be ful, so far they could devise a cohsuaautonal mechanism to accomplish that puC:pose.'
 They say further that the Language of the very clause in question cannot be con- strued as the opponents of Mir. Quay would construe it CT fin any other way that the undersigned construe 1t, without destroying its own purpose. If there be no power fin the executive of Pennsylvania to appoint a successor to MT. Quay under this clause or the constitution, there is no power in the legislature to choose such successor until the end of the term, and in every case where senator dies or resigns, where the legislature is not in session, or where, after such death or resignation, the legislature mas met and adjourned without a choice, or wherever at the beginning of a term the vacancy remains unified it must remain unillled until the end of the six years. &C., cording to the logic of the majority of the committee"
 The State Is In Fault
 On another point the minority says:
 Tt Is said that if the legislature has been in session after vacancy and has failed to ill, the state is in fault; that the legis Lure has neglected its duty and so if is not Just that the state should suffer. There are two answers as to this argument. First, that 1t is not for the interest of the whole people that every state should be fully