The New York herald. [volume] (New York, N.Y.) 1920-1924, 1922-02-05
KENYON DEMANDS
JUDGESHIP RULING
Despite Justice Department
Opinion He Retains SEN
ate Seat.
MUST BE NO DOUBT
Wires Gov. Kendall That Elig-
Utility Must Be Put Be-
80 yond Question.
MUST BE NO DOUBT

Special Dispatch to THE NEW York HERALD.
New York Herald Bureau,
Washington, ID. O., Feb. 4.
Although the Department OF Justice
and leading lawyers in the Senate have
expressed the opinion that Senator Ken
yon (Iowa) clearly is eligible FOR ap-
pointment as United States Circuit
Judge to which position he has been
nominated by President Harding and
confirmed by the Senate. Senator Ken
yon desires that there be no question
whatever about it before he assumes the
new office
He telegraphed to Gov. Kendall to-
day that he would not resign his seat
until the constitutional question involved
in the appointment had been thoroughly
cleared up.
IF there is any real doubt about my
eligibility for the office" said Senator
Kenyon. II would not think of leaving
the Senate to accept 1t. Before 1 con-
sidere dthe appointment at all this ques-
ton was examined by some of the ablest
lawyers In the Senate and the Depart
ment OF Justice and the opinion was
slven that the constitutional inhibition
did not fit my CASE
Salary Increase Involved.
The question of the eligibility of SEN
ator Kenyon has been raised because the
salary OF the Judgeship was increased
from $1,000 to $500 while he was serv-
ing as Senator-not during his present
six year term, but near the end of his
previous term.
Rush l.. Holland Assistant Attorney
General, gave to THE NEW YORK HERALD
a. a W n Gfn fNP~ <;,,tN
which he has prepared on behalf Of the
Department Of Justice. 1t says:
No Senator or Representative shall.
during the time for which he was
elected, he appointed to any civil office
Under the authority of the United
States, which shall have been created,
or the emouments whereof shall have
been Increased during such time. and
10 person holding any office under the
United States shall be member of
either house during his continuance in
office.
Tho salary of the office to which
Senator Kenyon has been appointed
was increased by act Of Congress
February Is. 1919 (40 Stat. 1850, at which
time he was member of the Senate.
his term expiring March 4. 1919. He
was elected in 1918 for a six year term
beginning March 4. 1919.
He was elected for the period from
March 4. 1915, to March 4. 1919 and 1t
was during this time that tho salary
OF Circuit Judge was increased.
Declares for Eligibility.
''His appointment made at the pres
cnt time is therefore not made during
the time for which he was elected, when
the salary was increased. and hence
does not come within the constitutional
prohibition"
So far as could be learned to-day
there never has been court decision
interpreting this section OF the Consti-
tuition as applied to a case exactly like
that Of Senator Kenyon. The lawyers
who have expressed their opinions
point to the fact that the increase In
salary was voted in the Senate prior
to the Senatorial term during which
the appointment was made.
IL the legal opinion were against the
eligibility of Senator Kenyon the only
way his inability to serve as judge
could be removed would be by the pas
sage of a. resolution through Congress
reducing the salary OF the Eighth Dis
tr,ct 1udgeship to the old figure.
such action was taken In the case OF
Tho late Philander G. Knox when he
WAS appointed Secretary OF State i'm
the Taft Cabinet The salary OF Cabi-
re- officers had been increased from
$1,000 year to $4,000. The appoint
1nent to the cabinet and the salary in
crease had taken place during the same
senatorial term OF Senator Knox There
being no question Of his ineligibility the
salary was reduced in his case and he
served as Secretary of State