New-York tribune., 1907-06-09
THE DE FACTO SENATE.

1t is perhaps little early to decide the ques-
ton whether not, if n reapportionment bill
becomes law, new Senate. as we'll as a
Assembly, will have 10 be chosen next NOvem-
ber. The decision of the Court of Appeals up
setting the apport onment of 1905 is not entirely
clear on this point. The court held that the
present Legislature is a de facto body. and that
its legislative powers cannC' be challenged As
Ge factO Legislature it must exercise not only
its customary functions, but has devolved upon
it the additional duty of providing for the elec-
tion of body to replace II. chosen In accord
ance with a better understanding of the mean
Ing Of the apportiOnment clauses of the cOnStl-
tuition. 1t is not so obvious. however, that IFS
de facto status must continue unmpaired after
the performance of this special duty. Having
paved the way for the choice of a de jure sue
cessor, it may be doubted whether constitutional
propriey or political expedienCy requires it TO
stand pat on a title which, as the court de
cided. held good solely. or chiefly. because there
was 20 practical way by which another and
better title could be Immediately perfected
There are those who hold that the Senate,
having been elected for two years and having
been accepted as de facto. must serve out the
two-year term In that event the Legislature
would he composed in 1905 of lower house
constitutionalIy elected and an upper house not
conStitutionally elected and merely serving
from necessity ad interim Another decision
from the Court of Appeals will undoubtedly be
needed TO clear up these uncertainties. Incl
dentally. some light may be thrown on the stua-
ton by the recent decision Of the Kentucky
Court of Appeals on the election contests car
ried before it from he city of Louisville ana
the county of Jefferson. City and county officers
were voted for In 1905, and the Mayor and
other officials who were declared elected found
their titles challenged the ground of gross
frauds at the polls minor court decided In
favor of the contesteeS but on appeal to the
highest court this decision was reversed and
the conclusion was reached that there had been
no valid and constitutional election. The in
cumbents were of course. recognized as de faCto
officers. and their acts were validated But the
court decided that they should be displaced
soon as it could be conveniently done. and. act
ing under a Kentucky statute, empowered the
Governor 20 appoint a Mayor and certain other
officers, and these officers TO fill by appointment
the remaining vacancies.
The Kentucky judges declared moreover that
the offices thus unconstitutiOnaIly filled must be
considered vacant with the same legal effect
as if the person elected had refused to qualify"
The fact that the ncumbents were elected to
four-year terms was not considered 10 involve
their de facto continuance in Office for the full
four years, their de facto functions lasting, on
the contrary, only until the proper machinery
could be put In operation to supplant them with
legally chosen successors If In our own case
de factO Senators, means having been supplied
for replacing them constitutiOnally have no
other status than that Of officers who have
failed or declined to qualify, then an election
this fall seems requisite. At any rate, the Ken
tucky parallel may be worth consideration at
Albany.