The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1926-01-09
ARGUMENTS
PRESENTED
IN SENATE
Governor Had No Right 10
Fill Vacancy, Says Senator
George, Democrat
TECHNICALITIES URGED
North Dakota Legislature
Has Not Enacted Necessary
Legislation, He Says

Washington, Jan. 0.-R-With
prospects Of vote before the end
Of the day. the senate today heard
more argument for and against the
seating of Senator designate Gerald
p. Nye of North Dakota.
Senator George, Democrat Georgia,
contended that the governor did not
have the right to fill the vacancy by
appointment.
The Georgia senator declared that
no senator could be admitted to the
senate unless he had been elected
either by the people or appointed to
an unexpired term by a governor ex-
pressly authorized by the state leg
islature.
Most States Give Governor Right To
Appoint
Although the majority of the
states had given their governors this
power, he declared, North Dakota's
legislature had not enacted similar
legislation.
"Thosc who accuse US Of standing
on technicalities will do we'll to re-
examine the grounds on which they
stand. because il Nye is admitted it
will be on a fine technicality," he
said
1--WE invoke the broad doctrine that
the people OF state choose senators
and it is not within the province of
a governor to name them"
Legislature Must Act First
Senator George insisted that the
constitutional amendment for clec-
tion Of senators by direct vote of the
people required that legislatures nf
states must take some affirmative
action following it's adoption, provia-
ing for the filling of vacancies by the
governor pending an election, be-
fore he would have authority to make
temporary appointment.
He declared that while the consti-
tuition Of North Dakota as adopted
25 years ago, before the constitu-
tional amendment was ratified, did
not authorize appointment by the
governor Of d senator to fill a va
cancy, nevertheless, had it contained
= direct authorization for filling u
senatorial vacancy it would not have
been effective in the present case.
His two reasons for taking that
position were, he stated, that the
legislature could not validity antici-
pate the constitutional amendment
which specifically provided how SEN
ate vacancies could be filled and that
the authorization in question was by
the constitution of the state and
not by Legislature MS the constition-
al amendment had provided.
Other Senators Disagree
He was interrupted in this line Of
argument by Senators HELM, Ala.
bama. Wheeler, Montana, and Brat
ton, New Mexico, Democrats, and
Frazier Of North Dakota, and Norris.
Nebraska, Republicans, who disa-
greed.
The Glass case from Alabama, SEN
atOr George asserted, is a precedent
under which the senate should deny a
seat to Nye.
The Georgia senator insisted that
the people Of North Dakota had abb
solutely no power to instruct the
governor to fill q vacancy in the SEN
ate by appointment. The seventeenth
amendment to the constitution pro-
hibits it, he said, and specifically
declares vacancy shall be filed by
election. Only temporary appoint
ment can be made, he argued.
Butler Appointment Cited
Senator Walsh, Democrat, Montana,
questioned the validity of state acts
specifying that elections to fill va
cancies shall be held at the next
general election. Senator Nealy,
Democrat, West Virginia, then re-
called that Senator Butler, Republi-
can. Massachusetts,, had been ap-
pointed under such a state law to
hold the seat of the late Senator
Lodge and compared this appoint
ment to that of Nye.