The Birmingham age-herald., 1913-08-21
JUDGE ROGERS ON
NAMING OF TERM"
Cites Authorities to Uphold
Governors Right to
Appoint Senator


enced a change of mind relative to the
validity of the appointment of Mr.. Clay
ton by Governor O'Neal to fill the late
Senator Johnston's unexpired term, bas-
ing his present position on the words "or
term" used in the third section or para
graph of the seventeenth amendment.
Senator Robinson, as 1 understand the
dispatches is convinced after careful
| reading Of this section and study of prece-
dents, that the word term means the
entire time for which Senator Johnston
was elected or chosen. and that his term
did not terminate upon his death
This is the position I have maintained
ever since 1 read with care the entire
amendment and this position ! assumed
when, as part OF the sinister influence .
I insisted to Governor o. Neal that he not
only had the right, but that it was his
duty, to fill the vacancy by appointment,
and that he was without authority to call
special election.
In my communication published in The
Age-Herald on Monday morning. and cor
rected in The Age-Herald on Tuesday, I
gave briefly my reasons for holding that
Governor o'Neal had the right to make
an appointment; but that communication
was written hurriedly and l did not there
fore, undertake to cite any authorities in
support of my contention. With your kind
permission l would now like to elaborate
my argument and present some authors
ties upon which my conclusion was based.
The third section or paragraph of the
seventeenth amendment is as follows;
This amendment shall not be SO con-
strued as to affect the election or term
of any senator chosen before it becomes
valid as part of the constitution
Senator Johnston was elected or
chosen by the Alaabma legislature in
January 1907, for the term of six
years beginning on the 4th day of
March, 1909, when the present term of
Edmund Winston Pettus as such sena-
tor from the state of Alabama shaE
expire" There can, therefore, be no
questioning the fact that Senator john
ston was chosen" and elected before
the seventeenth amendment became
valid as part of the constitution, or
that he was elected or chosen for a
term of six years beginning on the 4th
day of March, 1909, and that his term
expired on the 4th day of March, 1916
not before.
islature expire at the end of the term
for which they are elected.
Is Current Law, p. 1929.
State VS.. Meyer, IN, D. 127 n. w.
Rep. S34
While it is true that the above cita-
| tion refers to state legislatures, yet
the same rule has been recognized in
our national egislature-Congres
ever since the constitution was first
Ddnntad Saptinn of arti0 of "a
federal constitution provides that If
vacancies in the Senate happen by
resignation, or otherwise, during the
recess of the Legislature of any state,
the executive thereof may make tenn
porary appointments until the next
meeting of the Legislature, which shall
then fill such vacancies. This provision
of the federal constitution is proof
positive that when vacancy occurs,
even by death, the term of the deceased
member does not cease and determine
but that the balance of the time for
which he was elected or chosen becomes
and is known as IAN unexpired term"
Unexpired term Is remainder of
period prescribed by law after por-
tion of such term has passed.
State vs.. Metcalfe 80 Ohio St, 244:
So N. e. Rep. 7S3.
Section of article OF the federal con-
stitution. applies to vacancies that may
happen in the representation from state
in the lower House of Congress, but pro-
vides for the filing of the unexpired term
by the qualified voters of the district,
by means of a special election.
The methods of filling vacancies in both
houses of Congress have been followed
where vacancy was caused by death
of the incumbent, and no claim or pre-
| tense was ever made that the death of a
member terminated the term for which
he had been elected or chosen.
Term of office relates to the office IL
self. (Russell VS.. State, Ind. 81, N. f. Re-
| porter, 13).
period of time, designated by law. "a
, Current Law, p. 1929. State VS.. Williams
| 222 Mo-, 26S; 121 S. W. Rep. GD
| The term of a public officer is gen.
| orally fixed by constitutional or statutory
provisions. Is Current Law, p. 1900.
| In legal contemplation the choosing of
an officer at an election duly proclaimed
| is choosing for the constitutional or
| statutory term as the case may be- Or
dinarily the word or words term" or
term of Office means a fixed and def
mite period of time. f6 Current Law PIP
s50-s51. State VS.. Calusha, Neb. 104; N
| W. Rep. 19O.
Where the law points out what par
| ticular officer shall exercise the du-
\ liCS VI diOihCi OAliCt, OIL the Q6aLn OF
| disability of its incumbent. the sue
ceeding officer generally holds the full
| term, to which his principal was elected
as in the case of the Vice President
of the United States or the lieutenant
governor of state. This is true also
of an appointive office having a des-
| ignated term. as to which it is held that
the appointee to a vacancy, occurring
by death or resignation, holds only for
| the balance Of the IpeXpired term and
not for full term.
| Current law, p. 1913;
State VS. Mcbride. 70 Wash. 5S5; 20
Pac. Rep. %.
Tansey VS.. Stringer, 20 Ky l.. r. GIG;
| rs S. w. Rep. 597.
Under constitution, article 16, sec
| tions 27, 2S, a Judge elected at the
general election in 1902 in place of the
judge regularly elected In 1909. whose
office became vacant by DEATH was
elected for the unexpired term of the
| deceased judge only, and not for the
iull, constitutional term of four years.
Hicks VS.. Curl, (Tex.) Sc S. W.. Rep.
| 36S.
| One elected to fill vacancy takes only
| the unexpired term of his predecessor %
I Current Law, p. S52).
An appointee to fill a vacancy holds
| for the unexpired term "a Current Law,
I p. 1130, and notes..
| Term of office of one appointed to va
cancy is for unexpired term only (McKen-
zie VS. Elliott, n j., 72 Atlantic Re-
! porter, 40.
( l think it entirely unnecessary to give
more citations. Those / have given are
I sufficient TO prove that the word term
means the constitutional or statutory
period of time for which the officer was
elected, and that term does not and never
| in hapn 10 determine