The Bismarck tribune., 1925-12-30
SENATOR MOSES BRIEF IN THE
SENATORIAL SITUATI0NBELlEVED
T0HAVE BEEN PREPARED IN FARGO
Minority Report of Committee Privileges and Elections
Concerning Right of Gerald p Nye to Senate Seat
; Holds Appointment Is Valid

tlngency, 1t is sufficient to use the
| identical language used in the ori-
ginal law.
With what subject was the legis-
| lature dealing in each instance?
Vacancies in office? What vacancies?
| The law says call vacancies except
| in the office of a member Of the leg
islative assembly,
"All vacancies is comprehensive
| enough to include Il vacancy in the
| United States Senate. The cumprc-
hcnsivencss of the term "all vacan-
| cies" is not lcsscncd now because
| the same term was used with refer
| ence to the power Of filling vacan-
cies before the adoption of the seven
tcenth amendment. 1t is true that
the amendment had added another
to the class of vacancies, the filling
of which the legislature was cmpow-
! cred to make provision for.
! So we find that, according to the
language used in the title Of the
| statute, the legislature was attempt
! ing to provide for the filling of
| vacancies of every class, with Il
single exception. This was in line
with the previous history of filling
vacancies. There is not single law
in tho State for filling the vacancy
by election, except where there is Il
| constitutional provision to that cf-
| feet.
Each State Has Right TO Full
Representation
How natural, then, that the lcgis-
laturc should pass Legislation as
provided for under the seventeenth
amendment. Each State is anxious
to have full representation in the
! Senate. The right to full and equal
representation was jealousy guarded
by the trainers Of the Constitution.
| III. II was also argued that this
statute is invalid so far as it relates
! to authority on the part Of the gov
IL provided for tho filling Of the va
cancics when, under the seventeenth
amendment, he could commission Il
Senator to serve only until an cleo
tion should be held. There is no
merit in this argument. The answer
is that greater includes Il lesser.
OF course, the governors commission
and his right to appoint would have
to be considered and construed in
the light of the seventeenth amend
mcnt; and the time that his APP
pointce can serve would be limited
and restricted by tho provisions Of
that amendment.
Cases Support Contention
| In support Of this contention /
refer to two cases. In Scott V. Flow
crs (Gl Nebr. 62O) the court said
| The legislature has clearly here cx-
pressed its will, but it has gone too
! far; it has transccndcd the limits of
its authority. 1t has, in an unmistak-
able manner, significd its purpose
t, not only to authorize the commit
| ment to the reform school Of certain
children under 16 years of age, but
also children beyond that age, who
although guiltless of crime, have
| evinced a criminal tendency and are
without proper parental restraint.
The legislature having declared its
F, will, and its command to the courts
being in part valid and in part void,
the decisive question is, Shall section
5 be given effect so far as it is in
accord and agreement with the par
amount law? 1t seems that both
quire that the question should re
ceive an affirmative answer.
The other case is Commissioners
". George Goa Ky. 26O). In this
case there appears this language:
The act construed created board
of penitentiary. commissioner and
provided that of the first board one
should hold for two years, one for
four years, and one for six years,
and that their successors should be
elected for six jca.. The constitu-
tion forbade the creation Of officers
with longer term than four years.
The act was held to create four
| year term and to be valid as so mod
flied.
The language employed shows that
the general assembly was willing
that one Of the commiss toner's should
hold his office for six ycars--two
years longer than the constitution
will permit. AS the general assem-
bly, expressed Il willingness that one
of the commissioners should hold for
two years longer than the constitu.
tion permits, it is certainly reason
able to conclude that it was the will
of that body that the commissions RS
should hold for four years. as this
term is necessarily included in the
longer ono which is fixed. TO hold
the act void in SO far as it makes the
term six years instead Of four, still
the balance of the act is complete
and enforceable. The purpose and
the commissioners should manage
and control the pcnitcntiarics can
be cffcctuatcd by eliminating from
the act that part which attempted to
make terms six instead of four years
The holding Of these eases is to
this effect: That the appointment is
not invalidatcd, but that the time
the appointcc can hold is limited; !;
that when some one is duly elected,
the person who was appointed is no
i longer entitled to hold tho Office.
Senator IL a State Officer
! III. Again, it is contended that
the statute referred to does not in
cludc a United States Senator in it's
grant of authority to the governor
to fill vacancies, although the lcgis'
laturc may have intended to so in
cludc Senators.
The language Of the statute is 'in
State and district Offices" SO the
question arises: Is this language
3 broad enough to give the authority
to appoint Senator?
Of course, it does not refer to !,
Senator in terms. 1t might well
have been more definite. But there
is strong legal authority for the
contention that Senator is a State
officer.
! The Supreme Court, in the Burton
case (2Q2 U. S. 344) says:
Il While the Senate, as branch of
; the legislative department, owes its
existence to the Constitution, ant
participates in passing laws that
concern the entire country, it's Mem.
, hers are chosen by the State leg,sla
!, lures and can not properly be said
. to hold their places under the Gov
, ernment of the United States.
In United States v. Mouat (124 U
S. 3O7) there is this language:
: Unless a person who is in the ser
, vice of the Government holds his
place by virtue of an appointment
! by the President, or Of the courts o1
. Justice, or heads of departments