Vernon County censor. [volume] (Viroqua, Wis.) 1865-1955, 1907-03-20
LEGISLATURE CANNOT SAFELY
act SOONER.
FEDRAL SENATE JUDGES
Seated Men Elected Prior to Actual
Vacancy but Adversely Comment
ed on Such Action-vacancy Does
not Exist Until Resignation Takes
Etfect-Many Presidents Cited.
Madison. March II.

III * oPOAoC ~ d JOlnl ACSOAutioA
adopted last week, Attorney General
Gilber4 yesterday delivered an opinion
relative to the proper time for ballot
| ing for a successor to Senator spoon
balloting cannot safely be done until
! the second Tuesday after May /,
when the resignation is to take effect.
The opinion concludes with the fol
lowing remark: Should you, how
ever. decide to proceed to ballot at an
earlier date, relying upon the Chiffon
and Hemenway cases, the election
may be subject to contest on the floor
Of the senate. Such a contingency
can safely be avoided by following
the procedure l have advised.
Mr.. Gilbert does not hold that no
precedents can be found where I'M
der similar circumstances senator's
elect have been seated by the United
States senate but he does point out
that they have not always been
Sc ated without comment or objec-
ton He holds;
From the foregoing it will be seen
that the filing of a pros 0ective vacan-
cy in the United States senate, even
by a legislature, caused by a resigna-
| ton to take effect in the future, has
been questioned and the validity
| thereof seriously doubted by lawyers
CT eminence, themselves members of
the senata, not only in previous cases,
but also in the most recent instances
upon which the subject was dis
| cussed." The recent case referred to
when, after the notice of resignation
on The part of Senator Fairbanks, to
take effect March 4, 1905. Mr.. Hem
enway was elected to fill the vacan-
cy, on January II, 1905. Senators
Bailey and Pratt at that time serious
~ questioned the procedure of seat
ing the senator-elect. The interpre-
tation of the word vacancy" was the
cause of the difference of opinion in
that case, and the attorney general
points out what the legal interpreta
ton of that word ia according to the
American and English Encyclopedia
OF Law, volume 20, second edition.
page 562 IAN Office is not vacant so
/ long as it is supplied in the manner
provided by the constitution or law
with an incumbent who is legally
! qualiied to exercise the powers and
perform the duties which appertain
to it; and, conversely, it is vacant in
the eye of the law whenever it is I'M
occupied by legally qualified incum-
| bent, who has lawful right to con-
tinue therein until the happening of
some future event"
Might Withdraw Resignation.
Because a resignation or vacancy
| to take effect in the future may be
withdrawn, a vacancy, such as may
Justify filing of the same by the
governor or the legislature, does not
| yet exist when the notice is given.
The attorney general says on this
point
An unconditional resignation, to
take effect Immediately cannot be
withdrawn, even with the consent OF
the power authorized to accept it, but
a prospective resignation may in
point of law, amount to but notice
lct iutention to resign at a future date
O. i proposition to so resign, and, for
thu. reason that it is not accompanied
by the giving up of the Office, may
withdraw his proposition to resign"
Where the resignation is to take
effect in the future, there is no va
cancy until the time comes Wien the
incumbent is to give UP his office
The cases which have arisen in the
past in the United States senate are
reviewed Most Of these show that the
sc nators-elect were actually seated
but their right vas questioned by
members of that fody and from the
standpoint of a strict Interpretation
OF the law they should not have been
allowed to take their seats in con-
congress. In the case of Lannan of
Connecticut the senate rejected his
credentials of appointment by the
governor The first case which in
volved the filling Of the vacancy by
the legislature was the Dixon case of
Kentucky The contestee was seated
by vote of 81 to 16. The Chiffon
case of Texas caused the greatest stir
ia the senate and brought out the
reasons for the objections to filling
the vacancy before it had actually oc-
CURED. The committee on privileges
and elections, of which Senator Hoar
was chairman, investigated the prece-
dents upon which Mr.. Chiffon was to
be awarded his seat. and reported
among other things as follows:
| ON the other hand, an examination
OF the very numerous cases where the
Executives of states have made APP
.-. nuy... S-vNsruA