Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1900-01-24

/, died before qualification. In other
words. we conclude that the power OF
appointment
Was Not to BE Exercised
unless the vacancy occurred in the ro-
cess OF the legislature and was occa-
stoned by some casualty like death or
resignation
The report then quotes numerous
p~recedents, beginning with that of
Kensey Johns, of Delaware, in 1894.
and closing with the case of Henry w.
Corbett, OF Oregon, in 1898. 1t then
ends as follows: the statement OF
these cases and ~precedents show that
from the beginning of the government
down to the present time the Senate
has never recognized the right of a
State executive to make a temporary
appointment where the vacancy hap
pened or oceurred during the session Of
the legislature. 1t shows, further, that
for seventy-ive years the Senate has
SLdoNO u ANNo5AANO AZ ISL VI
State executive to make a temporary
appointment, even where the vacancy
happened or occurred during a recess
of the legislature, if the legislature,
either before or after it occurred and
prior to the date of the appointment,
had had an opportunity to I'LL it.
The fundamental principle thus es-
tablished is that il the legislature. eth
er before o after the happening OF q
vacancy, has had In opportunity to hll
it, then there is M power in the State
executive to appoint. The result is
fatal to the claims of Mr.. Quay. No
danger nor evil has resulted to the gov
eminent from the enforcement of this
principle. We therefore submit that
the Senate, for its own honor and dig
nifty, should stand by its previous SOL
emn and deliberate decisions"
The minority report takes the oppo-
site view. Quoting Sec. 8, Art. 1 Of
the constitutional provision, the ques-
ton of the failure of the governor to
call the legislature together to elect a
Senator does not act to deprive the
governor of the power of appointment.
Referring to the constitutional proyis-
ion, the question is asked:
Does the language OF the Constitu-
tion of the United States mean just
what the Constitution OF the Common
wealth of Pennsylvania says: In case
OF a vacancy in the Office of United
States Senator in a recess between
sessions or does 1t mean that the
vavancy must be one which comes by
chance, so that it does not apply at all
to the case of a vacancy at the begin
ming of a term, which does not come
by chance but is foreseen and newt
able?"
This Question is Answered
as follows: IF the words have tho
former meaning, then all distinctions
between cases where a legislature has
been in session and those where a
legislature has not been in session, be-
tween vacancies at the beginning of a
term itself has begun and the Office
for that term once filed, are without
Importance. We think that the for
mer is the true meaning Of the constl-
tuition. We think that it was the in
tent OF the constitution to provide,
as far as possible, that every State
should have two Senators.
"First-The constitutional conyen-
ton hesltated between comforting the
power OF appointing Senators upon
the executive and the legislature of the
State in the beginning. Like the leg
isIature, the executive Of the State was
supposed TO represent the viii of the
people. Under the constitutional ar
r~angements then existing. ne appointed
all State officers and appointed judges,
who held their Office for life. So there
is no reason to suppose that they con-
sidered the executive an unfit instr,I-
meRt for such appointment And they
settled the question by giving the
power Of permanent appointment to
the legislature, and Of temporary APP
pointment tc the executive.
"Second-We conceive no reason
likely 10 have influenced of the franz
ers OF the constitution for making a
distinction between cases II vacancy
occurring in n way or at one time
and vacancies occurring in any other