New-York tribune., 1909-04-13
ARE THEY SENATOR'S?
TWO NOT YET ELECTED.
Mr. Clay and Nr. Fletcher Serr'ng
by appointment of Governors.
rFrom The Tribune Bureau.l

Washington April 12.-Is Senator Clay of Geor-
ga entitled take part in the framing or the
tariff bill? This question has not been raised OF
fciaIIy but it has aroused interest among those
Senators who look to the strict letter of the CON
sttuton guidance in all matters relating 10 the
right Of Senators to hold their seats The case
Of the Georgia Senator is analogous to that or
Senator Fletcher of Florida, but all doubt OF
Mr. Fietcher's right sit in the Senate will be
removed next week. when the Florida Legislature
will formally choose him Senator.
Senator Clay has fear that any of his colleagues
will question his right to serve in the Senate No
protest made when his credentials were pre-
sented and objection offered to his taking
the oath of office March 4. He is de facto
Senator and such is held to be entitled to all the
rights and privileges enjoyed by his colleagues
Both the Georgia and Florida Senators realize, how
ever, that while they safe ground this time
the future bring troubles if steps are not taken
to guard against the lack of harmony between the
laws of their states the federal Constitution re-
spectng the choosing of United States Senators
The act of Congress of July %, 1866. provides
that the Legislature of each state which is chosen
next preceding the expiration of the time for
which any Senator elected to represent such
state in Congress shall elect Senator. All the
state legislatures except those of Florida and
Georgia have taken notice of this provision of the
federal law. and they meet date prior TO the
expiration of the Senatorial term. In Georgia the
legislative session does not begin unt. the fourth
Wednesday in June while in Florida the Legisla-
the first Tuesday after the first
Monday in April.
In the Florida primaries Mr. Fletcher was the
nominee for Senator, while in Georgia Senator Clay
the primary nominee to succeed himself. In
neither case it possible to ratfy the primary
choice by legislative election in time to permit
Messrs. Fletcher and Clay to take up their duties
Accordingly commissions were issued to them by
their governors. These commissions we're received
and in the absence OF any protest both Senators
were sworn
10 Of 4irc, int
by governors in cases where the Legislature OF
the state chosen next preceding March did
convene until after that date, there are prec-
edents on both sides. Charles II. Bell was ap-
pointed United States Senator March l3 1879.
by the Governor OF New Hampshire to fill a va
cancy happening March OF that year After
a contest he seated by vote Of 81 to 2S. I'm
der the same circumstances Henry W. Blair. OF
New Hampshire. seated in 1885. contest
made against Mr BIair's right 10 his seat,
the vote being 36 to 20 in his favor.
Senator Bacon, one of the closest students OF
constitutional law the Democratic side holds
that it is the settled rule Of the Senate that an
appointment is legal when, under the law or q
state the legislative session does not begin until
after March 4 Senators Bacon and Clay voted
against the seating OF Senator Quay, OF Pennsyi-
, vanfa. who claimed his under appointment
Of the Governor II that II has been sus-
gested that the Quay case furnishes a precedent
for the Florida and Georgia cases. BY vote OF
81 to 32. the Senate adopted resolution that Mr..
Quay not entitled TO sit in the Senate The
Pennsylvania Senator'S term expired while the
Legislature Of the in session, and no
election made. The majority Of the Com
mittee Privileges and Elections held that
whenever the Legislature has the right and an
opportunity TO I'LL a vacancy, either before or
after il begins the Executive cannot lawfully ap-
point"
Senators Taliaferro and Fletcher. Of Florida and
Senators Bacon and Clay. OF Georgia, are hopeful
that their respective state legislatures will take
steps this year change the dates OF their ses-
sions so that meetings Will be held prior 10 March
1. Under present conditions these Senators must
look to their executives to carry out the popular
viii expressed in the primaries 1t IS pointed out
that there legal constitutional obga-
ton upon the Governor of Georgia 10 appoint Mr..
Clay Senator for the three months from March 10
June Of this year. Had he appointed another for
this period Senator Clay would have lost his
seniority rights and. upon hts election by the
Legislature in June. would have come 10 the Sen
ate to take service tie foot of the committees
While there IS likely be any injustice done
as long as Florida and Georgia have primary cleo
tion laws which are directory both 10 the Gov
ernor and the Legislature, the Senators from those
states would feel more II their legislatures
changed their meeting dates so that the executive
branch would have opportunity 10 fill va
cances In the iutcrreEnum