authority vested in me by the Constitution and laws of the United States and of the State of Texas, do hereby appoint Horace Chilton, of Smith County, Texas, Senator in the Congress of the United States from the State of Texas, to fill the vacancy occasioned by the resignation of the Hon. John S. Reagan. This appointment to take effect the 10th day of June, A. D. 1891.”

The certificate bears date April 25, 1891.

Mr. Chilton is in all other respects duly qualified to be a Senator from the State of Texas. The only question is whether the governor might lawfully make this appointment before the resignation of Mr. Reagan actually took effect.

The provision of the Constitution affecting the question is as follows:

"ART. I, Sec. 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof for six years,

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and

if vacancies 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."

A similar state of facts has arisen in a number of instances since the Constitution went into operation.

The term of Uriah Tracy, Senator from Connecticut, expired March 3, 1801; he was appointed by the governor of Connecticut February 20, 1801, "from the 3d of March next until the next meeting of the legislature of said State," the legislature of the State not being in session at the time of said appointment or thereafter until after said 4th of March. Exception being taken to his credentials, he was admitted to the seat by a vote of 13 yeas to 10 nays, and held the seat during the special session of the Senate, March 4 and 5.

Joseph Anderson, of Tennessee, was appointed by the executive February 6, 1809, to fill the vacancy which would result from the expiration of his term, March 3, 1809. He held the seat under these credentials during the special session of the Senate, March 4 to March 7, 1809.

John Williams, of Tennessee, was appointed by the executive to fill the vacancy which would result from the expiration of his own term, March 3, 1817. Under these credentials he held his seat from March 4 to 6, 1817.

John McPherson Berrien, of Georgia, resigned by letter dated Washington, May 28, 1852, addressed to the President pro tempore, and read in Senate same date. (Globe, first session Thirty-second Congress, p. 1493.)

Robert M. Charlton, his successor, appeared June 11, 1852, with credentials signed by the governor of Georgia, and dated May 18, 1852, to take effect from and after May 31, 1852. He was sworn and took his seat without objection. (Senate Journal, first session. Thirty-second Congress, p. 468.)

March 4, 1825, James Lanman, of Connecticut, presented credentials showing an appointment made February 8, 1825, by the governor of the State to fill the vacancy about to result from the expiration of his term, March 3, 1825. Objection being made, Mr. Lanman was refused a seat a a vote of 23 to 13. There is no historical evidence from which we can determine on what ground the Senate rejected Mr. Lanman, whether it was on the ground that the governor could not fill a vacancy happening at the beginning of a term, or on the ground that the governor could not lawfully make the appointment in anticipation and before a vacancy occurred, and before he could possibly know whether the legislature might not be called together before that time. Judge Story (Const., sec. 727, n. 2) says:

"In the case of Mr. Lanman, a Senator from Connecticut, a question occurred whether the State executive could make an appointment in the recess of the State legislature in anticipation of the expiration of the term of office of an existing Senator. It was decided by the Senate that he could not make such an appointment. The facts were that Mr. Lanman's term as Senator expired on the 3d of March, 1825. The President had convoked the Senate to meet on the 4th of March. The governor of Connecticut, in the recess of the legislature (whose session would be in May), on the 9th of the preceding February appointed Mr. Lanman as Senator, to sit in the Senate after the 3d of March. The Senate by a vote of 23 to 18 decided that the appointment could not be constitutionally made until after the vacancy had actually occurred."

The following statement appears in the National Intelligencer of Tuesday, March 8, 1825:

"An important constitutional question was yesterday decided in the Senate by the refusal to admit Mr. Lanman to a seat in the Senate under a commission from the governor, granted before the expiration of Mr. Lanman's late term of service. This is the first time this question has been adjudicated under such circumstances as to form a precedent; and we presume it may now be considered a settled construction of the constitutional provision that a vacancy must have literally happened' or come to pass before an appointment can be made to fill it. The case has once been questioned and decided differently, but it was in strong party times, all the Federal members voting for the member's taking his seat and all the Democratic members

against it, under which circumstances the decision has not been much respected as a precedent. So far as it was a precedent it is now reversed."

Gorden's Digest of the Laws of the United States, 1827, appendix, note 1 B, states the ground of the decision in the same way, but manifestly bases the statement on the authority of the National Intelligencer.

On the other hand, Mr. Grundy, in his report from the Committee on the Judiciary in the case of Mr. Sevier, Senator from the State of Arkansas, who was appointed by the governor of Arkansas January 17, 1837, to fill the vacancy which would occur on the 3d of March following, by the expiration of Mr. Sevier's previous term, declared that the decision in the Lanman case was on the ground "that the legislature must provide for all vacancies, which must occur at stated and known periods, and that the expiration of a regular term of service is not such a contingency as is embraced in the second section of the first article of the Constitution." He distinguished Mr. Sevier's case from the Lanman case by the fact that the time that Mr. Sevier was to go out of office was decided by lot, he having been one of the Senators appointed by the State on its admission.

Niles's Register of Friday, March 12, states the question in regard to the Lanman

case:

"The question was whether the failure by the legislature to make a choice of Senator constitutes the contingency in which the governor may appoint a Senator." Mr. Benton, in his Thirty Years' View, states that the principal argument against the admission of Mr. Lanman was made by Mr. Tazewell, that argument being that the word "happen" in the Constitution could not apply to a foreseen event, bound to occur at a fixed period, and that therefore it was the right of the legislature only to fill a vacancy which was foreseen, regular, and certain, and that there was no right in the governor to supply that omission.

Mr. Lanman was not admitted to the seat. There is nothing in the contemporary record of the debates or in the resolution which enables us to determine whether the majority of the Senate based its action on the ground stated by Mr. Benton to have been maintained by Mr. Tazewell, or on the ground stated by Judge Story and by the National Intelligencer. The case, therefore, is not an authority on either side of the question. So that it is impossible to determine whether the Senate meant to overrule the Tracy case on one ground or the other.

On the other hand, an examination of the very numerous cases where the executives of States have made appointments when the legislature was not in session shows that in a great many of them the executive has postponed action, where the resignations were made to take effect at a future time or where the previous term had expired by its own limitation, until after the vacancy existed. In all probability this postponement was caused by a belief on the part of the executive that he had no authority to provide for filling a vacancy until it actually occurred, or at any rate, that the question was so far in doubt that it would be unsafe to make the appointment in anticipation.

So far, then, as the precedents are concerned, it appears that in three cases persons so appointed have been admitted to their seats without question; that Mr. Tracy was admitted and Mr. Lanman rejected, where the executive made the appointment in anticipation of a vacancy, there being a discussion in the Senate, but no satisfactory evidence of the grounds of the judgment; that in one case, that of Mr. Sevier, a person so appointed has been admitted, when the validity of the appointment was questioned, upon other grounds, without raising this question specifically; and that in modern times, the practice has been uniform for the State executive to delay appointment until the actual happening of the vacancy.

Under these circumstances, it seems to us that the Senate may now determine the question, unhampered by any precedents of its own.

We suppose that where the power is given to fill vacancies in public offices, it has been the uniform practice to permit resignations of such offices to be made, to take effect at a future day, and to hold that the appointing power is entitled to make the appointment in advance to fill the vacancy, to take effect when the resignation becomes operative, unless the language of the constitutional or statute provision under which the authority is exercised forbids such construction.

The Constitution of the United States, Article II, section 2, in providing for the appointing power, enacts:

The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

We believe it has been the uniform practice of the Executive from the beginning to accept resignations which are to take effect in the future, and to make appointments, also to take effect in the future, to fill them. We suppose that a like practice also prevails in regard to the heads of Departments in the exercise of the appointing power conferred by law upon them. The language of the provision of the Constitution under consideration, that "if vacancies 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," seems to us to admit easily of a like construction, We do not suppose that it was the intention of the framers of the Constitution to establish different rules for these two cases. The Senate has recently, after full consideration, determined that the constitutional provision that the Senate shall choose a president pro tempore in the absence of the Vice-President permits the choice of an officer in advance of the actual occurrence of the contingency referred to, who may take the chair whenever the VicePresident may be absent, until the Senate otherwise order. In all these cases, including that which we are now considering, the important consideration is that it must have been the purpose of the framers of the Constitution, as it is clearly for the public interest, that the office as far as possible should always be filled. This consideration applies with peculiar force to the office of Senator. We should be very unwilling to establish a construction of the Constitution which would make it certain that in no case of the resignation of a Senator, however necessary that resignation might be, there should be a succession without a considerable interval. This would bear with peculiar hardship upon States remote from the seat of government, and might determine the policy of the country in great emergencies and in matters peculiarly affecting particular States, when such States were but partially represented, or possibly not represented at all. The tendency of the opinion of the Senate, as evidenced by its more recent decisions, has been more and more to lean to a construction which, as far as possible, secures that the seats in the Senate should be filled without any interruption in the representation of the State. Thus, in the case of Mr. Bell and Mr. Blair, Senators from the State of New Hampshire, it has been held that the executive might fill the vacancy occurring at the beginning of the constitutional term in consequence of the failure or the inability of the legislature to elect a Senator for that term, in compliance with the statute of 1866 (Revised Statutes, sections 14 and 19), in spite of very weighty and influential opinions to the contrary.

So it has been held and is now the settled construction, that if a vacancy occur during the recess of the Senate, and a person be regularly nominated to the Senate at its next session to fill it, and be rejected, and the Senate adjourn without the office being filled, the President is entitled to make a new appointment in the next vacation. So, if the officer died during the session, and his death be not known until after the adjournment, as is said by the Attorney-General Taney, in his able report (Opinions of Attorneys-General, Vol. 2, p. 523):

"It is admitted by everyone that the President may appoint in such cases, and the practice of the Government has continually conformed to that construction." "It was the intention of the Constitution," Mr. Taney further says, "that the offices created by law and necessary to carry out the operations of the Government should always be full, or, at all events, that the vacancy should not be a protracted one." (See also, to the same effect, the opinion of William Wirt, 1 Op. Att'ysGen., 631.)

It has been suggested that if this construction be established it will be in the power of the governor of the State to provide by appointment for the filling of future vacancies long before they occur, and, therefore, the will of the people of the State, as it exists at or near the time of filling the vacancy, fail of being carried into effect. But the instances must necessarily be very rare indeed where the vacancy can be anticipated beforehand under circumstances which will create such temptation to the executive. Against that, as against many other evils which are possible under a popular government, as under other governments, the protection in general must be in the character and integrity of the persons clothed with high public office.

We, therefore, are of the opinion that Mr. Chilton was lawfully appointed by the executive of the State of Texas to the seat which he now holds, and recommend the adoption of the following resolution:

Resolved, That Mr. Horace Chilton, appointed by the executive of the State of Texas on the 25th day of April, 1891, to fill the vacancy occasioned by the sesignation of the Hon. John H. Reagan, which had previously been made, to take effect on the 10th day of June, 1891, is entitled to retain his seat.

On motion by Mr. Hoar,

WEDNESDAY, January 27, 1892.

The Senate proceeded to consider the report of the Committee on Privileges and Elections on the circumstances and validity of the appointment of Mr. Horace Chilton as a Senator from the State of Texas; and

The resolution reported by the committee was agreed to, as follows.

Resolved, That Mr. Horace Chilton, appointed by the executive of the State of Texas, on the 25th day of April, 1891, to fill the vacancy occasioned by the Resignation of the Hon. John H. Reagan, which had previously been made to take effect on the 10th day of June, 1891, is entitled to retain his seat.

[The debate will be found in Cong. Record, 1st sess. 52d Cong., p. 635, daily edition.]

[Special session of the Senate, March 4, 1893, and first session Fifty-third Congress.]

LEE MANTLE, of Montana.

The term of Wilbur S. Sanders, a Senator from the State of Montana, expired March 3, 1893. The legislature of said State, which was elected next preceding the expiration of the term of Mr. Sanders, adjourned March 3, 1893, after a full session, without electing a Senator. On the 4th day of March, 1893, John E. Richards, the governor of Montana, appointed Lee Mantle to fill the vacancy caused by the expiration of the term of Mr. Sanders. On the 9th day of March, 1893, the Senate of the United States having been convened in special session, the credentials of Mr. Mantle were presented and ordered to lie on the table, and were afterwards referred to the Committee on Privileges and Elections. March 27, 1893, the committee submitted a report, which was chiefly devoted to a discussion of the question of the right of the executive of a State to appoint a Senator to represent the State in the Congress of the United States at the expiration of the term of a Senator in case the legislature having authority to choose a successor to the Senator whose term so expires fails to do so. The conclusion of the committee was in favor of the right of the executive of the State to appoint under such circumstances. The report was accompanied by a resolution declaring Mr. Mantle entitled to be admitted to a seat as a Senator from the State of Montana.

From the views expressed in this report a minority of the committee dissented, affirming the view that where the legislature of a State has had an opportunity to elect a Senator and has failed to do so, it is not thereafter competent for the executive of the State to appoint a person to the United States Senate to fill the vacancy caused by the expiration of the term of a Senator. The views of the minority were also accompanied by a resolution that Mr. Mantle was not entitled to take his seat in the Senate as a Senator from the State of Montana.

The question raised by the report of the committee and the resolutions thus submitted was debated in the Senate at considerable length, and on the 28th day of August, 1893, it was decided by a vote of 32 to 29 that Mr. Mantle was not entitled to a seat in the Senate.

The history of the case here given consists of a statement of the proceedings in the Senate in relation thereto as published in the Congressional Record, the report of the Committee on Privileges and Elections, the views of the minority of the committee, a statement of the days on which the debate occurred with a reference to the record of the same, a portion of the remarks of Senators in such debate, the vote on the substitute for the resolution submitted by the committee, the record of the proceedings on the motion to reconsider such vote, and the proceedings on the final adoption of the substitute for the resolution submitted by the committee.

PROCEEDINGS IN THE SENATE.

THURSDAY, March 9, 1893.

Mr. Teller presented the credentials of Hon. Lee Mantle, who had been appointed a Senator from the State of Montana by the governor of that State. He asked that the credentials be read and lie on the table until the Committee on Privileges and Elections should be formed, and then be referred to that committee. The credentials were read as follows:

"Whereas a vacancy hath happened in the office of Senator in the Congress of the United States from the State of Montana by the expiration of the official term of Wilbur S. Saunders, which said vacancy happened at noon on the 4th day of March, 1893, which said date was during a recess of the legislature of said State, which said recess still continues and said vacancy still exists; and

"Whereas by section 3 of the Constitution of the United States it is provided as to Senators in the Congress of the United States 'if vacancies 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,' and the exigency therein contemplated hath occurred.

Now, therefore, I, John E. Richards, governor of the State of Montana, by virtue of the power in me vested, have appointed and do hereby appoint Lee Mantle to be a Senator in the Congress of the United States from the State of Montana to fill such vacancy until the next meeting of the legislature of the State of Montana.

"In witness whereof I have hereunto set my hand and caused the seal of the State of Montana to be hereto affixed, at Helena, in said State, at 12.30 o'clock on the 4th day of March, in the year of our Lord 1893, and of the Independence of the United States of America the one hundred and seventeenth,

"[SEAL.]

"By the governor:

"L. ROTWITT, Secretary of State."

"J. E. RICHARDS, Governor.

After a brief discussion the credentials were ordered to lie on the table (Cong. Rec., vol. 25, p. 5.)

MONDAY, March 27, 1893.

Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred the credentials of Lee Mantle, claiming a seat in the Senate from the State of Montana, submitted a report with a resolution accompanying the same, which resolution he asked to have read. The resolution was read as follows:

"Resolved, That Lee Mantle is entitled to be admitted to a seat as a Senator from the State of Montana."

At the request of Mr. Vance and Mr. Hoar the report, with the accompanying resolution, was ordered to lie on the table to be printed with the views of the minority, when submitted. (Cong. Rec., vol. 25, pp. 32 and 33.)

REPORT OF THE COMMITTEE.

[The committee consisted of Messrs. Vance (chairman), Gray, Pugh, Turpie, Palmer, Hoar, Mitchell of Oregon, Chandler, and Higgins.]

IN THE SENATE OF THE UNITED STATES.

MARCH 27, 1893.-Ordered to be printed.

Mr. Hoar, from the Committee on Privileges and Elections, submitted the following report to accompany Senate resolution relative to admitting Lee Mantle, of Montana, to a seat as a Senator:

The Committee on Privileges and Elections, to whom were referred the credentials of Lee Mantle, claiming a seat in the Senate from the State of Montana, respectfully report:

The term of Mr. Sanders, Senator from Montana, ended March 3, 1893. The legislature of said State, who were, under Revised Statutes, sections 14, 15, entitled to elect his successor, had adjourned without an election. Thereupon the governor of Montana, on the 4th day of March, 1893, appointed Mr. Mantle to hold the office of Senator until the next meeting of the legislature.

We think said appointment valid.

The provisions of the Constitution under which the question arises are as follows (Art. I, sec. 3):

"The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have

one vote.

"Immediately after they shall have assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies 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."

In the construction of every contract the leading purpose which it was intended to accomplish is to be kept constantly in mind. This purpose is to be appealed to to supply all omissions, to reconcile all inconsistencies, to give a meaning to all ambiguities, and even, in clear cases, to compel a construction opposed sometimes to a clear meaning of particular words and phrases. Human language is imperfect and human intellects differ in respect to the meaning which they attach to language of ordinary clearness. Without this principle of construction it would be impossible for men to deal with each other with any security or to be held justly and reasonably to any obligation whatever.

This principle is of tenfold more importance in a construction of a constitution of government. Without it the grossest injustice and oppression must be wrought under the fundamental law of the State, to be followed inevitably in their turn by revolution, disorder, and anarchy. "Never forget," said Chief Justice Marshall in McCulloch v. Maryland, "that it is a constitution we are construing." What is the

great and leading purpose which the provision now under consideration was designed to accomplish? It is that the Senate of the United States shall be full, always full. Each State was to be represented there by two Senators. No State was ever to be deprived of its equal vote in the Senate except by its own consent to a change in the Constitution itself. This consideration was held to be of infinitely more importance than the question whether the appointment should be made by the legislature or by the executive. Indeed, the latter plan had many advocates in the convention itself.

79908°-S. Doc. 1036, 62-3- -6