The Birmingham age-herald., 1913-09-08
Had no Candidate in Mind.
Hopes to Remain Neutral
During Campaign
ALABAMA RIGHT IN
BRINGING UP ISSUE
Republicans Would Have Raised OBJ
lection no Matter How the State
Proceeded to Fill the
Vacancy
by c. E. STEWART

by c. L. STEWART
Washington, September 7.-(special)
Senator Bankhead today made the fol-
lowing interesting statement regarding his
position toward the complicated senatorial
situation in Alabama brought about bf
the untimely death of Senator Johnston,
and the first real test of the seventeenth
amendment to the federal constitution:
I'm view of certain criticisms of my
advice to the governor to appoint sue
oessor to Senator Johnston and for the
sole purpose of keeping the record
straight, deem it proper to state briefly
The reasons which actuated me-
Heard the Arguments
II am not a lawyer, but l heard the
debates on the seventeenth amendment,
and from a common sense understanding
of the language employed, and the pur-
pose to be accomplished by that part OF
the amendment dealing with vacancies, l
believed that the governor had power to
appoint pending the filling of the vacancy
in some other legal way In this view
WIS sustained by leading lawyers and
courts L knew the great need to the
party to have the vacancy promptly
filled. l believed that any democrat ap-
pointed by the governor would give cor
dial support to the Underwood tariff bill
We were all apprehensive about the mar
Tow margin in the Senate. | knew that
the right of the governor to order an
election was as much in doubt as his
right to appoint and that one presenting
credentials as result of the delay and
cost to the state incident to an election
would be challenged with the same OBJ
jections, viz: n want of power in the gov
ernor in the absence of legislation to or
der an election
"There was no way to secure a senator
whose right would not be challenged, ex-
cept, possibly by having the legislature
assembled and get authority by the leg
jslature for the governor to appoint But
that course would have caused delay as
will be herein shown and great expense
To the state.
Would Also Have Been Challenged
IF the governor had ordered an cleo
ton, or if the legislature had been called
in special session and had provided for a
special election by the people, the right
of the one elected would have been chal-
longed by those who believe that the sew
enteenth amendment does not apply to
Senator Johnston's term" of office. Ii
the amendment did not apply to the term
Tor which he was elected, as is contended
by a large number of senators, then there
nr;+ oIa of
q senator by direct vote to fill vacancy.
There is sharp conflict of opinion in
the Senate over the proper construction
OF the vacancy clause of the amendment.
"Some believe that the amendment is
presently operative. while others hold
that the provision that it doeSnot apply
to the terms" of senators in office at
the time of its adoption, delays it's appli-
cation until the expiration of the term
OF office of senators then in office.
All Lawyers Agree
..If the amendment did not operate on
the terms of senators in office, it is per-
1ectly clear that neither the governor nor
the legislature had power to order an
election vacancy could only be filled
ly appointment to hold until the legsla-
ture met as provided in the constitution
prior to the adoption of the amendment.
If the amendment did not apply to the
term for which Senator Johnston was
elected, then it would have been the duty
CT the legislature, if called in extra ses-
sion, 10 eject senator. 1t would have
had no power to authorize the governor
10 appoint nor to order a special election.
! am informed that all lawyers will agree
to .hat proposition. 1t is therefore APP
parent that with the different opinions of
the meaning of the amendment senator
could not have been chosen in any way SO
as to avoid contest over his seat.
THE question then arose, what was the
quickest and cheapest way to the tax
Iayers of Alabama to get the matter be-
lore the Senate and have the question
finally settled. There was no way in ad-
vance to know what a majority of the
Senate thought the amendment meant
There is no way yet to ascertain that
fact. Many senators are still in doubt
Before advising the governor to~appoint
/ considered the time necessary to Sc
erre special election. ] found that Sec
zion 46 OF the constitution contained the
following: Whenever a vacancy shall
occur in either house. the governor shall
issue a writ of election to fill such va
cancv for the remainder of the term.
also found that section 439 of the code
was as follows:
Holding Special Elections
Special elections are to be held in the
following cases
q. T. When a vacancy occurs in the Of
fce of senator or representative in the
legislature. when the legislature will be
in session prior to the next general elec-
ton for that office.
q assumed that the governor would
I3n3IT-YNY. T1I11iV