Evening star., 1925-11-29
NYE SEAT HINGES
ON FINE LAW POINT
Conflicting Precedents Puz-
zIe Senators in Considering
Right to Office.
BY G. GOULD LINCOLN.

If a Senator, a State officer or a
Federal officer?
The question threatens to become
more widely discussed than How Old
Is Ann" or Which came first. the
chicken or the egg?" 1t arises be-
cause of the appointment OF Gerald
p. Nye by Gov. Sorlie of North Da-
kota to fill vacancy in the Senate
caused by the death of Senator Ed
win +. Ladd. The source of Gov.
Sorlies authority to make the ap-
pointment is held to be a North Da-
kota law enacted in 1917 giving the
governor power to fill vacancies which
may arise in State and district Of
fees"
Barring this statute, it appears that
Gov. Sorlie has no authority to ap-
point to fill a vacancy in the Senate,
since no other law has been passed
by the State Legislature dealing with
vacancies Tin the Senate0 since the
adoption of the constitutional amend
ment providing for the direct election
of Senators. That amendment directs
that when vacancies occur in the
Senate, they shall be filed by cleo
tions, providing, however, that State
Legislatures may empower the state
executives to make temporary ap-
pointments until the people may fill
such vacancies by election.
Insists on Right.
Senator Nye is now in Washington.
He insists that the governor only
used his rightful authority In appoint
ing him to the Senate.
The legal lights of the Senate are
engaged in a careful study of the ques-
ton, realizing that the Senate itself
will be called upon within a very rev
days to seat Mr.. Nye or to deny him
the right to sit in that body. Dec1-
sions of the Supreme Court are be-
ing scanned carefully, ana preceoentS
in the Senate itself.
Senator Nye pointed out yesterday
that the law giving the governor au-
thority to appoint to fill vacancies In
State and district offices is practically
identical with the old statute, which
ran prior to the year 1913, when Sen
ators were elected by the state Leg
islatures, and the governor of North
Dakota was held to be empowered to
make appointments to fill vacancies In
the Senate until the Legislature could
elect.
As an offset to that argument, how
ever. the statement was advanced in
other quarters that before the adop-
tion of the constitutional amendment
Droyiding for the direct election OF
senators no State law was required to
give the governors of States authority
TO fill vacancies, since the language
of the Constitution itself gave this
authority. The Constitution then
said: And if vacancies happen by
resignation or otherwise during the
recess of the Legislature Of any State
the executive thereof may make tenn
norary appointments until the next
meeting of the Legislature. which
shall then All such vacancies
Two Cases i'm Point.
Two cases decided in the past by
the Supreme Court of the United
States have dealt with the status of
Senators and Representatives, one of
which indicates that they may not be
considered to "hold their places under
the Government of the United States, !"
and the other declares that a member
of the House of Representatives is an
officer of the United States, at least
within the meaning of section 80 of
the penal code. The first of these
cases Is that of Burton versus the
United States. and the second, the
case of Lamar, the Wolf of Wall
Street" versus the United States.
]. Ralph Burton, a Senator from
Kansas, was indicted on the ground
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