Montgomery County sentinel. [volume] (Rockville, Md.) 1855-1974, 1913-06-06
The Seventeenth Amendment And
The Senatorial Situation.

To the Editor of the Montgomery County
Sentinel:
Since the ratification of the Seventeenth
Amendment to the Constitution the Ques-
ton of the nomination and election of a
United States Senator for the short term
under the present election laws of Maryland
has arisen, and has created much interest
and diversity of opinion. The States lead
ing lawyers differ on the subject, one of
the main points Of difference being in re-
spect to the status of a senator, l. e.,
whether he is State or Federal officer.
1t is conceded on all sides that if sena-
tor is not State officer he cannot be
nominated under the present law, for our
primary law provides for the nomination |
of candidates for State Offices only. In an |
opinion recently published in the Baltimore
Sun an eminent attorney was quoted as |
stating that the Supreme Court of the |
United States had decided the Office of |
senator to be State office, and recently |
relied upon Burton vs. u. S., 202 u. S., as
authority for his position. In that case |
the court decided that a senator cannot |
properly be said to hold his Office under |
the Government of the United States" My |
examination of the authorities fails to dis |
close any other utterance of that court on |
the subject. From an analysis Of the Bur- |
ton case, it would seem that the court did
not decide that senator is State officer,
but in order to uphold the constitutionality
of penal statute, decided that a senator
did not come within the meaning of the
clause Of Federal statute providing that
any person convicted of certain offenses
shall "be rendered forever thereafter inca
pable Of holding any Office OF honor, trust,
or profit under the United States" To
construe this provision of the statute to
apply to senator would deprive him of
his seat upon conviction Of the offense
mentioned in the statute. The court points
out in its opinion a senator's seat can be-
come vacant in but three ways first, by his
death; second. by expiration of his term
and third. by some direct action on the
part Of the Senate in the exercise of its
constitutional powers. To have held a
senator to be within the clause in question
would have invalidated the act, since it
would be unconstitutional to bestow upon
the judiciary a power in respect to senators
which was vested by the Constitution in
the Senate alone. The court was constru.
ing the particular act before ii and decided
that a senator did not hold his office under
the Government Of the United State" with
in the meaning Of that statute.
The Supreme Court has repeatedly said
that the Office Of representative in the
lower house of Congress is Federal Office
See Ex Parte Yarbrough, ITO u. S., ISL. and
In Re. Coy. 1877 u S., 731, and indeed this
seems to be conceded in the opinions re-
Gently published in the newspapers wherein
ii has been said that the Office of United
States Senator is State Office. As sena-
tors are hereafter to be elected by direct
vote of the people it would seem to follow
that the status Of the Office Of senator
should be the same as that Of a represen-
tative. for, if the Burton case be construed
as deciding senator to be State officer
it must be admitted that the court placed
its decision upon the sole ground that a
senator was elected by the State legisla-
ture. Other points of similarity between
the two offices tend to show senator, like a
representative, to be a Federal officer.
Among these the following might be men
toned:
l. When a senator is sworn into Office
he, like representative, is sworn to up
hold and defend the Constitution of the
United States and not the Constitution of
the State from which he comes If he is
State officer. why is he not sworn to up
hold the latter also?
2. A senator's salary. like that of a rep
resentative. is paid by the Federal Govern
ment and not by the State from which he
comes. II the States which ratified and
adopted the Federal Constitution had
thought that senator was State officer,
would they have given authority to the
Federal Government in the constitution to
pay senators salariesl
3. The commission of a senator is issued
in the same manner as that Of a represen-
tative.
The Supreme Court has held that unless
person holds his Office by appointment
of the President by and with the advice
and consent Of the Senate. or by a court of
law, or by the head Of a department. he is
not, strictly speaking. an officer of the
United States. But it would seem that the
court had reference to appOintive offices
only and the case would therefore, have
no bearing on the senatorial situation.
To hold that our present primary law is
broad enough to permit the nomination of
a candidate for the Senate, would be
equivalent to holding that the State leg
islature, in passing the law in question,
intended to provide. and did provide, for a
situation which did not exist at the time
of the passage of the statute, and, more
over was scarcely contemplated at that
time. The wording of the act itself seems
to indicate that the Legislature did not in
tend it to apply TO senatorial candidates.
II
be so construed is to construe the express
sion State Office" as used therein to be
broad enough TO include senators. Ii is
difficult, however, to see how this can be
done, for in another section of the act the
same expression, viz. State Office" ap-
pears, In connection with which the leg
islature enumerated the Offices to be in
Guided therein. In so doing il did not
name the Office Of United States Senator
II follows, therefore. from well-known rules
Of construction, that the Office of United
States Senator was not intended to be in
cluded within the scope of the last-mention-
ed part OF the act II this construction be
correct. ii also follows that the Office of
United States Senator should not be held
within the expression State office" as
used in the aforementioned part of the
act. for. by another well-known rule of statu-
tory construction, the expression State
Office" should be given a uniform meaning
throughout the statute.
II it be correct that the present primary
law is not broad enough to permit the
nomination OF senator. then the first step
in remedying the situation lies with the
Governor in exercising his power to call
an extra session of the Legislature, or with
the Federal Congress. which has power 70
legislate on the subject Il is to be hoped
that the Governor will exercise his power
in order to give the people Of Maryland
the opportunity next November of choosing
for themselves a new senator.
JULIAN w. WHITING.
Rockville. Nd. May 20. 1918.
NorE-This letter was sent to the Balti-
more American in the following form and
published by that paper with such omissions
II h a. he