The Bismarck tribune., 1925-12-30

ms appolntlve power was practically
prepared in Fargo. Some declare
that while the hand was that of
Moses the pen was that Of Burlcigh
Spalding, legal advisor Of the Fargo
political machine, director Of the
dcstinies of the real and the near
Republicans of the sovereign state
Of North Dakota.
Since the death Of Alexander Nc
kcnzic and Judge n. c. Young, one
of the best informed and most astute
political manipulators is Burleigh
Spalding members of the constitu-
tional convention, congressman, su-
prcmc court judge and office holder
for half a century par excellence.
What Spalding does not know
about North Dakota politics, its
leaders and its shortcomings is hard
1y worth bothcring about. He knows
his political stuff and it is felt in
many circles that he is the man who
directed the fight against Nye at
Washington.
Emphasis Not Properly Placed
Some of the Republican leaders at
Washington, however, are not pleas
ed with the way in which the legal
end Of the fight against Nye was
handled. Too little emphasis was
placed upon the constitutional provi-
sions of North Dakota relative to
appointments and also the signifi-
cancc Of section 696 Of the North
Dakota Code as amended in 1917 by
chapter 2i9 Of the session laws.
Copies Of the minority report sub
mittcd by Senator Stephens were re-
ceIved in Bismarck today. 1t is pre-
sentcd herewith in full:
"Thc credentials Of Mr.. Nyc state
that he is "to represent the State
of North Dakota in the Senate Of
the United States until the vacancy
caused by the death Of E. +. Ladd is
filled by election duly called for
June 30, 1926"
"Mr. Nyc's right to scat in the
Senate is challenged. the ground Of
challenge being that the governor
had no power to make the appoint
ment. The Committee on Privileges
and Elections has, by u majority
vote, upheld this contention, and as
] do not agree with the majority,
am filing this brief statement.
The Scvcnt ccnth Amendment
The seventeenth amendment to the
Constitution of the United States
contains this language:
When vacancies happen in the rep
rcscntation Of any State in the Sem
ate, tho executive authority of such
State shall issue writs of election to
fill such vacancies: Provided, That
the legislature of any State may em-
power the executive thereof to make
temporary appointments until the
people fill the vacancies by election
as the Legislature may direct.
This amendment was ratified in
1913. 1t was held by the majority
that the Legislature Of North Dakot;
has not. empowered the governor to
make temporary appointment and
therefore, he was without authority
to appoint Mr.. Nye; that the only
authority that he had was to issue a
writ Of election so that the people
could vote for and elect Mr.. Ladd's
successor.
If the legislature failed to grant
the governor this authority, OF
course Mr.. Nye's appointment was IL
MED the right to sit in the Senate.
North Dakota Statute
There is a statute in North Dakota
to which attention is now directed
1t is section COG of the code of that
State, as amended in 1917 by chap
ter 249 of the session laws. This
section, as amended, reads as fol
lows:
SEC. 696. Vacanies, how filled:
All vacancies, except in the office OF
member of the legislative assem-
bly,, shall be filled by appointment
as follows:
/. In the office of States attor-
ncy, in which vacancy has occurred
by reason Of removal under section
Gs5 Of the Compiled Laws Of North
Dakota for the year 1918, by The
board of county commissioners by
and with the advice and consent OF
the governor.
2 In county and precinct Offices
by the board Of county commission
crs, except vacancies in such board.
3. In offices of civil townships, by
the justices Of the peace Of such
townships together with the boart
Of supervisors or majority OF
them and if Il vacancy occurs from
any cause in the board Of supervi-
sors, the remaining members Of the
board shall fill such vacancy.
4. In State and district Offices
by the governor.
This law was enacted about fou,
ment was ratified, SO the question
which arises is: Does this section
meet the requirement Of the seven
tccnth amendment with reference tt
empowering the governor to make q
temporary appointment?
Argued That Governor Cannot Ap'
point
The majority decided that it doe:
not grant such power. 1t was arguet
i'm the committee that the statute
gave no such power to the governor
for several reasons.
!. The legislature had no such in
tcntion when this statute was en-
acted.
In support Of that argument, at
tcntion was called to the fact thai
for long time prior to the adoption
Of the seventeenth amendment there
had been statute, identical ir
language with the statute as amend
cd by the acts Of 1917 in SO far as f;
provision authorizing the govcrno
to fill such vacancies is concerned.
That part of the statute which re
lates to the power Of the governor
to fill vacancies was the language
"in State and district Offices" A!
the words estate and district offices
were written into the law many year:
before the Constitution was amend
ed, so as to provide for the election
Of Senators by the people, and a.
tho statute was reenacted withou
any reference to the seventeenth
amendment and without any addi
tional grant of power to the COVER
nor so far as using any differen
Language, it lis argued that it wa
not the intention of the legislator,
to grant such power. do not agree
with the argument.
It was unnecessary for the legisla
ture in granting the governor powe
to make Temporary appointments t,
refer in any way to the seventeenth
amendment; nor was it necessary TO
the legislature, in reenacting the sta