The Montgomery advertiser., 1905-03-01
THE SENATE'S VERDICT
CAN BE NO SUCH THING AS CON.
 sTRUCTIvE RECESS.
If Decision Were Given Any Legal StandinE 1t Would Affect Nomina-
 tion of Wood, Crum and Many Others.

washington. Feb. 2s.--The Senate committee on, tho judiciary teddy by adopting the views of Senator Spooner concerning recess nomination and what constitutes a recess of the Senate has declared that there can be oonstruc. tive recess.
 The decisicn, if it were given any legal standing by action of the Senate. would affect the nomination of Gen. Leonard Wood. W. D. Crum. collector of the port of Charleston. S. C.. and 166 other nominations sent to the Sem ate in the period between the adjourn ment of the special session convened on November 9. 1903 and the converting of the regular session on December [. the two sessions having merged. All the nominations were sent to the Sem ate later and confirmed but the of- ficers drew salaries for the time. The Senate committee now decides they were not serving under authority of law.
 The question originally was raised by Senator Tillman, who opposing tho confirmation of Collector Crum, in q resolution asked that the committee on Judiciary construe the statutes and the constitution concerning appointments and define the term recess"
 Referring to the word recess, the committees report says:
 Tt was evidently intended by the framers of the constitution that it should mean something real, not some thing maginery; something actual, not something fictitious They use the word as the mass of mankind then under derstood and now understand 1t: 1t means in our judgment, in this con- nection. the period of time when the Senate is not sitting in regular or ex- traordinary session as a branch of the congress or in extraordinary session for the dicharge of executive functions: when its members owe no duty of att tendance, when its chamber is empty: when during its absence 1t cannot re- ceive communications from the presi- dent or participate as a body In mak- ing appointments.
 Tt would seem quite as natural that there should be a constructive session of congress or of the senate's construc- tive recess
 We think there cannot be any con structive end of a session. or a con structive beginning of assembling of Congress or of the Senate.
 "The provision of the constitution that the term (of an Officer) shall ex- pire at the end of the next session is self-executing and when the session expires the right to hold under the commission expires with it. If there be no appreciable point of time be- tween the end of one session and the beginning of another, since of neces- sity one ends and another begins. the tenure under the commission is abso- lutely terminal and is as If months of recess supervened.
 There was not a morent when the President could not. had he chosen. have sent nominations to the Senate. It was in session to receive any nom nations or messages he might com municate. There was no recess with in the letter or spirit oI the constitu- tion and therefore there was no right to issue commissions and induce the officers commissioned into office.
 The theory of constructive recess constitutes a heavy draft up0h the tive ending of one session. a construc- tive beginning of another and a con structive recess between the two"
 This decision. as the matter now stands, would affect accounts only. and 1t is not intended that action should he taken. It Is expected rather than the opinion of the committee only shall be used to govern In the future. The officers of the government affected were appointed during the summer of 1903 and their nominations were sent to the special session convened in November. They were not confirmed at that ses- sion and they were named as recess appointments in the imaginary time between the merging of the sessions. Under the law as construed by the judi ciary committee. the nominations had failed and a recess appointment could not be made.