New-York tribune., 1909-04-13
SENATOR'S BY APPOINTMENT.

Tho question raised as TO the right of Alex
ordor : CLAW of Georgia, and Duncan l.
Fletcher. of Florida. TO sit i'll the United states
senate under commissions granted them by the
Governors of Georgia and Florida, respectively
rnvives an old controversy. The point at issue
is whether such appointments are Valld uhuer
the Senates constructions OF the ConSliIulioh
md tho federal statutes The Constitution pro-
vidps thai = Governor may fill by appointment
vacancies happening by resignation or o'nei-
wise during the recess of the legislature me
meaning of this provision has Deen lnuch u'
batad and the Senate has veered from one opln-
ion to another. In recent years. however. IL mas
been established by numerous decisions that
q vacancy happening" means an accidental
vacancy and not a vacancy occurring through the
expiration of a term of service which could he
foreseen and provided against In the wen
known QUAY case the Senate accepted the 1udS-
7nent of its Committee Privileges and Elec-
+ionS that whenever the Legislature has the
right and an opportunity. TO Ill vacancy
either before or after il begins, the executive
cannot lawfully appoint.
The vacancies 10 fill which Mr.. Clay and MI
Fletcher were appointed could be foreseen ana
should have been filled at the session of each
STATE Legislature nearest to the date on which
the term expired. That is the custom now in
all the states except Florida and Georgia. These
Two states have misarranged the dates of their
legislative sessions so as 10 leave gap pe-
tween March 4 the date on which Senatorial
commissions expire and the days in April ana
June respectively, which the legislatures
elected the year before convene. The duty OF
electing Senators has been cOntided to these
legislatures. instead of to the legislatures
chosen two years previously because the law
of July -. 1868 governing elections of Sen
that ipuS he
the Legislature Of each state chosen next pre-
"cedinC the expiration of the time for wNich
ANY Senator was elected to represent such state
lin Congress" The phrase chosen" was ap-
parently intended to include chosen with
possibility Of conveuing and acting. since an
other section Of the law prepared 10 deal
with vacancies occurring between the time or
the Legislatures election and its conveninS.
compliance with the letter Of the law Of 1866
as it affects the situation in Florida and Gcor-
gia would seem to uullify the Senate's present
rule. that the Governor has no right to appoint
if the Legislature qualified to act in anticpa-
ton of a foroseen vacancy falls to act
No harm is ordinarily done when such an
hiatus occurs since an extra session of Con
gress is seldom called in the spring and cleo
tfons made in April and June date back in effect
to March f. But when an extra session like that
OF 1909 is called Florida and Georgia may he
caught temporarily without representation and
the questionable device of appointments has 20
be resorted to- New Hampshire had the same
experience for time but tired Of the annoy
auccS which if caused and advanced the date
for the Legislatures session. Florida and Gcor-
gia should do the same thing, or else eject he
fore a foreseen vacancy occurs. instead of after
Under the Seuate's later decisions such titles
Senators Clay and Fletcher have offered might
iusifiahly Ice declared invalid.