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undertaken by the Federal Government. As regards Senators and Presidential Electors, however, the Federal Government could not itself undertake their election, and it is difficult to suggest legal means by which state action could be compelled. In Cohens v. Virginia,39 Barbour, arguing in behalf of the position which had been taken by Virginia, declared: "Whenever the States shall be determined to destroy the Federal Government, they will not find it necessary to act, and to act in violation of the Constitution. They can quietly accomplish the purpose by not acting. Upon the state legislatures it depends to appoint the Senators and Presidential Electors, or to provide for their election. Let them merely not act in these particulars, the executive department and part of the legislature ceases to exist, and the Federal Government thus perishes by a sin of omission not of commission." To this position Webster alluded in his speech in reply to Calhoun, and endeavored to minimize its importance from the States' Rights standpoint. "I hear it often suggested," he said, "that the States, by refusing to appoint Senators and Electors, might bring this government to an end. Perhaps this is true; but the same may be said of the state governments themselves. Suppose the legislature of a State, having the power to appoint the governor and the judges, should omit that duty, would not the state government remain unorganized? No doubt, all elective governments may be broken up by a general abandonment on the part of those entrusted with political powers, of their ap propriate duties." Moreover, as a matter of fact, as Webster went on to show, in a certain very important sense the federal Constitution relies, for the maintenance of the government which it establishes, upon the plighted faith not of the States, as States, but upon the several oaths of its individual citizens, in that all members of a state legislature are obliged, as a condition precedent to their taking their seats, to swear to support the federal Constitution, and from the obligation of this oath no state power can discharge them. Thus, says Webster, "no member of a state legislature can refuse to proceed at the proper time to elect Sena

29 6 Wh. 264; 5 L. ed. 257.

tors to Congress, or to provide for the choice of Electors of President and Vice-President, any more than the members of this body [Senate] can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers, and to ascertain who are chosen. In both cases, the duty binds, and with equal strength, the conscience of the individual member, and it is imposed on all by an oath in the very same words. Let it then never be said, Sir, that it is a matter of discretion with the States whether they will continue the government, or break it up by refusing to appoint Senators and Electors. They have no discretion in the matter. The members of the legislatures cannot avoid doing either, so often as the time arrives, without a direct violation of their duty and their oaths; such a violation as would break up any other government."

The correctness of the reasoning of Webster may be granted, and yet the fact remains that however great a moral obligation there may be upon the individual members of the several state governments to take such action as is necessary to equip the Federal Government with the officials necessary for its operation, there exists no legal means, by an issue of mandamus or otherwise, to compel such action when refused.

§ 244. Election of Senators.

The Constitution provides that Senators in the federal Congress shall be chosen by the legislatures of the several States, and that "the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but that Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators."

Not until 1866 did Congress exercise the control over the election of Senators thus given it. Prior to that date the Senate had recognized the validity of elections based on majority votes in joint conventions of the two houses of the state legislatures, where a concurrent choice of the two houses sitting separately was not obtained. It was held, however, in the case of James Harlan,

1857, that in such joint conventions a quorum of both houses must be present.

By the act of 1866 the entire matter was federally determined. The text of the law is given below.40

In the case of James B. Eustis, the Senate held that, under this law, an election made by a majority vote in a joint convention was

40 Rev. Stat., §§ 14-19.

"§ 14. The legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to represent such State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress.

§ 15. Such election shall be conducted in the following manner: Each house shall openly by viva-voce vote of each member present, name one person for Senator in Congress from such State, and the name of the person so voted for, who receives a majority of the whole number of votes cast in each house, shall be entered on the journal of that house by the clerk or secretary thereof; or if either house fails to give such majority to any person on that day, the fact shall be entered on the journal. At twelve o'clock meridian of the day following that on which proceedings are required to take place as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person has received a majority of all the votes in each house, he shall be declared duly elected Senator. But if the same person has not received a majority of the votes in each house, or if either house has failed to take proceedings as required by this section, the joint assembly shall then proceed to choose. by a viva-voce vote of each member present, a person for Senator, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected. If no person receives such majority on the first day, the joint assembly shall meet at twelve o'clock meridian of each succeeding day during the session of the legislature, and shall take at least one vote, until a Senator is elected."

§ 16. Whenever on the meeting of the legislature of any State a vacancy exists in the representation of such State in the Senate, the legis lature shall proceed, on the second Tuesday after meeting and organization, to elect a person to fill such vacancy, in the manner prescribed in the preceding section for the election of a Senator for a full term.

§ 17. Whenever during the session of the legislature of any State a vacancy occurs in the representation of such State in the Senate, similar proceedings to fill such vacancy shall be had on the second Tuesday after the legislature has organized and has notice of such vacancy.

§ 18. It shall be the duty of the executive of the State from which any Senator has been chosen, to certify his election, under the seal of the State, to the President of the Senate of the United States.

§ 19. The certificate mentioned in the preceding section shall be countersigned by the secretary of state of the State.

valid, even though there was not present a quorum of one of the houses.

When there is a dispute as to which of two contesting state bodies is the de jure legislature, the United States Senate, while having the power to exercise its own judgment will ordinarily recognize that body which is accepted as de jure by the other state authorities.

§ 245. Popular Election of Senators.

The constitutional provision that Senators shall in each State be elected by the legislature thereof has, in a number of instances, been practically evaded by state laws or party regulations providing either that the people shall by popular vote indicate their choice for Senators, such indication being in practice, if not legally, binding upon the members of the state legislature; or that each political party shall in a primary vote indicate its choice, which choice in effect binds the party's Representatives in the state legislature.11

§ 246. Vacancies in the Senate.

It is provided by the Constitution that if vacancies in the Senate "happen by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies."

There has been considerable difference of opinion as to the proper construction to be given to the term "happen" as employed in the foregoing constitutional clause. By some it has been argued that a vacancy "happens" whenever, for any reason whatever, there is a vacancy in the representation of a State in the Senate. By others, it is asserted, that where a state legislature has had the opportunity to elect a Senator and has failed to do so, it cannot be said that a vacancy has " happened but that it has been present and brought about by the non-action of the state electoral body, and that that body has thus impliedly

41 See Haynes, The Election of Senators. Also Sen. Rep. 530, 54th Cong., 1st Sess.; and Sen. Doc. 406, 57th Cong., 1st Sess.

shown that it does not desire the vacancy to be filled. This was the position taken by the Senate in 1900 in the case of Senator Quay from Pennsylvania. The Committee on Privileges and Elections, in its report to the Senate recommending this action, after stating the facts, said: "It will thus be seen that the va cancy, which the Governor of Pennsylvania has here attempted to provide for by a temporary appointment, was one which was foreseen, one which was caused by the expiration of a prior term, one which occurred while the legislature of Pennsylvania was in session, and one which that legislature had an opportunity of filling before it occurred, in the interim between the date of the occurrence and the appointment of the Governor. Under these facts we think that the appointment is invalid. . . After a vacancy in the office of United States Senator occurs or comes to pass, if the next legislature does not fill it, it continues to exist. It is the same vacancy, not a new one. Now the state executive is given power to make temporary appointments in case of a vacancy not as long as it continues or exists, but only until the next meeting of the legislature, which is then required to fill the vacancy. This clearly means that the paramount intent to have the legislature choose the Senators is to prevail, and that, whenever the legislature has had the opportunity to fill the vacancy, either before or after it occurs, the executive has no power to appoint." 42

The senatorial practice has not been uniform in respect to executive appointments to fill vacancies, but the action in the Quay case has probably determined the doctrine for the future.

247. Vacancies in the House of Representatives.

When vacancies happen in the representation from any State, it is provided that the executive authority thereof shall issue writs of election to fill such vacancies.

Vacancies are occasioned by death, by resignation, or by acceptance of a disqualifying office.

42 Sen. Rpt. 153, 56th Cong., 1st Sess. 43 Van Ness Case, Cl. & H. 122.

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