New-York tribune., 1907-08-02
THE DE FACTO SENATE.

Most Of the confusion over the status OF Ihe
present State Senate has arisen apparently
from q failure TO discriminate between realty
and anpearance. There is a natural Yet qulIe
unwarranted disposition 10 assume 'hat Oc-
cause certain persons were elected as oeiliOo!
in 1906 they must be real Senators and remain
real Senators-until their two-year terms eA-
pire But though e person may use tle lItio
of Senator it is not necessary to agree that Ho
i a Senator in all that the designation IN
Mics If il is to be admitted that the plalh-
tiff in the action before Justice tlltS IS Il
real and rightfuI Senator, then 1t foHoWs tli'l'
he may appeal with justification TO provisions
of the constitution and the statutes intended
N dafine the powers and protect the rights OF
real Senators. But If he and his collea5uGS
are mere simulacra of Senators-emergehcy SUI
stttutes exercising the functions OF SENATORS oH
s1,fferance and enjoying certain powers not III
their own right but simply as lhdIIeh u
nnblIc conYenience-then it is not at al oD-
Iions that they can claim the protection guar
on+ned to Senators with clear tides ana uhuf
r,lnishad attributes Mr.. Cassidy holqs Ihdl lc
was elected Senator for a two-year term anu
must serve out that term. But the COulI %
ApneaIs has already said that MS eIecuoA Mt'9
invalid and thus altered his status from lnat
Of \ Senator standing on his own leel 70 tLHI
of an I'd interim intruder whose services Alls-,'
in the public interest be Temporarily IroIonSe0'
T2r- how can an ad interim Senator WIN q
,,,aroI- de focto title be said 70 be entitled 10
sorva ont fixed term? From a common sense
,,ojn+ of view it looks rs If he were serving on
tolerance only until his legislative aotlVlueS
corld le conveniently dispensed "lth' anu as
if the only question which could arse III toH-
nnction with the termination of his functions
was one Of public expedency and not OF
personal right ,. c,uo+o
The present Senate was Il dc jUfe neh'''o
mil +hn Court Of Appeals decided that 1t was
elected in violation Of the apporuonlneht PLo-
visions Of the state constitution But tie
oa,,,.+ declared MS IS the custom In such cases,
4Ia+ the LEGISLATURE could continue to act as
d, de fqcto body until some provision should ne
,oada for replacing It with a conSututohily
chosen successor. Nature abhors vacuum"
and so does the law and the de Tdc'o hl,tu'
has been invented as q legal fiction Tor orluE-
inc over governmental hiatuses ana IH'iA4n7
iutcrre@nums tolerabe. The existence OF "li
iIIecitimate body was art1caHy pTolohEeu
cbicqr for +be purpose of securing 4 new leg
islatfve apportionment, and when 'hat apPoi-
tjonrnent was secured the only important puOhc
reason for maintaining the de fdcto inter
,,arn11rn dIsappeared. The moribund, stoI-Eap
rody- had done its work, and there was 10
longer anv public exigpncy requiring ued'H
he'd proIongation Of heroic methods
An election for Assemblymcn is 10 be held
this fall ana a new de jTe lower Lcu7e "',t -
moot in Albany in January. Why should II
Ia oor,,TeIIa5 70 act with q de fGcto Senate
y-bnn means are at hand for suppIahuhS INC
de fo,t0 hold-over body by new De jHTe bodS :
We have already called attention 10 Recent
decision by the Kentucky Court of Appeals
~-ricb throws some light on the limitations OF
tho de facto status. City officers were elected
in louisville In 1905 for terms Of four years
But their election was contested on lhe grouIlH
of fraud Mt the polls, and the Court or Appears
~acided that they had not been legally CHOSEN
rrbeir acts IN office were recognized rs Fallu'
o,d +bev continued for q month or two after
tho decision TO exercise de fdctO powers. But
M claim of q right to flll out the four-ycaf
4or,,,e was admitted, and under the KENTUCKY
statutes the Governor named new ofnclalS 70
o,, until the next city election It seems 10
nc that officials whom Il court Of last resort
6rds TO have been Illegally elected ana WHO
orn thus shorn Of everything but dc fGcto
e+o+1,s serve thereafter only under q squatter
tito They are only courtesy officials with no
Inherent rights and are logically to be claSsi-
fed SO far as the termination OF uer SUP
stitute activities is concerned W!th oIclal'
Dbo have been elected but failed to quaIny.
THAT WAS the view recently enuAc1ated Dy uo
, Jzent71clyy court. In passing the new aIpor-
tionmant act the de fGctO Legislature OF l0oi'
logically. at least, wrote its own death SEN
+enee Legal refnements apart 1t seems %
ne IN have died, as every de tdct0 body IS
c,nected to die. as soon as it had fully served
it's nurpose as a bridge and a stopgap