Omaha daily bee., 1922-02-11
Is
Eligible to
u. S. Bench
Attorney General Holds Iowa
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outside Meaning Of Law


Washington, Feb. l0.-Senator
William s. Kenyon OF Iowa can le-
gally qualify as Judge OF the United
States circuit court in the Eighth
district to which he was recently ap-
pointed by President Harding and
confirmed by the senate. Attorney
General Daugherty holds in an opn-
ion transmitted 10 President Har-
ding which was made public al the
White House late today.
The opinion was requested by the
president after doubt had arisen in
some circles concerning the sem
ator's eligibility because OF the SON
stitutional provision which prohibits
senator or representative being ap-
pointed TO civil Office under the
federal government il ''the cmolu-
ments whereof have been increased
during the time for which the sem
ator or representative was elected.
The salaries OF circuit Judges were
increased from $1,000 to $500 on
February 25, 1919. whereas Senator
Kenyon did not begin his Present
term until March 4. 1919. so that he
does, not come within the meaning
OF the prohibition, the attornel gem
eral declared.
Text Of Letter.
The following is the text OF At
torney General Daugherty's letter to
the president:
Il have given careful consideration
TO your request for an opinion as to
whether or not the provisions of the
constitution make it impossible for
the Hon. William S. Kenyon to
qualify as United States circuit Judge
in the Eighth district, a position to
which he was recently appointed by
you, such appointment having been
confirmed by the senate, and beg
leave to report as follows: ~
"The salary of judges OF the cir
cult court was increased by act OF
congress February Is. 1919 (40 Stat.
1850. On this date Mr.. Kenyon
was a member of the senate. The
term which he was then serving ex-
pired March 4, 1919.
"In 1918 Senator Kenyon had
been reelected for a term which be-
gan March 4, 1919" Section /,
article 6, of the constitution of the
United States provides:
Quotes Constitution.
"No senator or representative
shall, during the time for which he
was selected, be appointed to any
civil office under the authority of
the United States which shall have
been created or the, emolumcnts
whereof shall have been increased
during such time and no person
holding any office under the United
States shall be member of either
house during his continuance in Of
flee.
The question, therefore, is as ito
whether or not the emoluments OF
the office to which he was appointed
on the 3lst day of January, 1922,
were increased during the time for
which he was elected with the mean-
ing OF this term as used in the fore
going provisions of the constitution.
There is dearth of authority on
this question and no decided cases.
Judge Story was of the opinion that
two things must concur in addition
to the representative or senator of
his right to appointment to civil
office under the above quoted Sec
ton of the constitution, to-wit;
"(a.) Increasing the emoluments
of an office; (b) Appointing 'sena-
tor or representative to All office, the
OF which had been in
creased, both occurring during the
term which the senator or represen-
tative was then serving.
Terms Do Not Apply.
"There is no such concurrences of
events in the case of Mr.. Kenyon.
The emoluments of the office to
which he has been appointed were
not increased during the time for
which he was elected at the time
of his appointment. ....
"If the trainers of the constitution
lad intended that increased the
of any office were in
creased during the term then being
served by United States senator,
such senator would be precluded
from being appointed to such office
during a subsequent term to which
he Lad been elected, more apt Ian
gGage would have unquestionably
been adopted. In this event the con-
stitution would have contained some
such language as no senator or rep
snail ever be appointed
to any civil office under the authority
of the United States, the emolu-
ments of which shall have been in
creased during the term of service
of such senator or representative.
81 am clearly of the opinion, under
the facts as above stated, that no
question can be recommended as to
the right of Senator Kenyon to
qualify as United States circuit
Judge"