The ineligibility of the person who receives a majority of the votes does not give the election to the candidate with the next highest number.

§ 78. Classification of the Senate.

The Constitution directs a classification of the Senate as follows:

"Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as nearly 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."1

On the original organization of the Senate, May 14th, 1789, a committee was appointed to consider and report a mode of carrying into effect this constitutional provision. In accordance with their report, the senators then sitting were arbitrarily divided into three classes, the first including six members, and the second and third, seven each. Three papers, numbered 1, 2 and 3 respectively, were rolled up and put into a box by the secretary; and then one senator from each class drew a number. The class which drew number 1 vacated their seats at the expiration of the second, the class which drew number 2 vacated their seats at the end of the fourth, and those who drew number 3 at the end of the sixth year. This plan, on account of the number then present at the Senate, left the first class, who vacated their seats at the expiration of the second year, one less in number than each of the other two. To prevent any unnecessary inequality in the classes, when the senators from New York appeared, two lots, one numbered 3, that of the small class, and one blank, were placed in the box. After each senator had drawn a lot, the one who drew number 3 was placed in the small class; and the other drew again from the box containing numbers 1 and 2, taking his place. in the class whose number he drew. When the senators from North Carolina appeared, there were then two classes of equal numbers, and one with a number in excess of each. The numbers of the equal classes were put in the box. Then each senator

§ 78.1 Constitution, Article I, Section 3. See supra, § 76, over notes 19-21.

drew one and was classed according to the number he drew. The classes were then equal in number. Accordingly, when the senators from Rhode Island appeared, papers numbered 1, 2, and 3 respectively, were again placed in the box from which each senator drew one. The proceedings continued according to these successive methods until the admission of the senators from Washington, North Dakota and South Dakota at the same time. The same three numbers were then placed in the box, and drawn by one senator from each of the new States. The secretary then placed in the ballot-box two papers of equal size, numbered 1 and 3 respectively. Each of the senators from the State which had thus drawn number 1 drew out a paper and was assigned in accordance with the number he drew. The secretary then placed in the ballot-box numbers 1, 2, and 3, and each of the senators from the State which had drawn number 2 drew a lot from the box. They were then assigned in accordance with the number drawn by each; and the remaining lot with a blank was again placed in the box and the senators from the remaining State drew from them. He who drew a number was assigned to the class represented by it; and he who drew a blank drew again from the box which then contained the other two numbers, and was assigned according to the number drawn. When the senators from Idaho, Montana, and Wyoming were admitted at the same time, the same proceedings took place.2 A custom has been thus established which will be followed in the future.

§ 79. Filling Vacancies in the Senate.

The Constitution provides 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, which shall then fill such Vacancies." The meaning of the phrase, "happen during the Recess of the Legislature," is a question which has been the subject of conflicting precedents and is not yet definitely settled. Is the expiration of the term of a senator, which is not filled by the

2 Furber, Precedents Relating to the Privileges of the Senate, pp. 190

§ 79. 1 Constitution, Article I, Section 3.

legislature, either through its failure to meet after the term expires, or by its adjournment without an election, the happening of a vacancy which authorizes an appointment by the State executive? In other words, is the word "happen" in this connection synonymous with the word "occur," or does it mean the occurrence of an event which cannot be foreseen and so provided for by the calling of the legislature in extraordinary session, if that be necessary, to fill the vacancy?

In support of the more restricted meaning of the word " "happen," its advocates rely upon the ordinary meaning of the word, which, it must be admitted, suggests that the event was unexpected; 2 upon the surrounding words in that clause of the Con

66

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An

2" But it is said that the word 'happen' does not necessarily refer to a casualty or an unexpected event; that in our language we make use of that word indifferently for occur''or come to pass.' It is respectfully submitted that this is not true. event that is provided for by law to take place at stated periods known to all men is not correctly spoken of by people of ordinary education as 'happening,' because there is no element of uncertainty in it. The examples given of statutes providing for certain things to be done on a certain day of a month if it happen not on a Sunday,' etc., will not bear out the assertion. It is true that it might be known to all men who are astronomers, and would sit down and make calculations that a certain date in a certain year would fall on Sunday; but the great masses of mankind do not think of it in that way. They speak as though the thing were absolutely uncertain. But we do not say, for instance, that any natural event, which all men know and look for, did happen' to come at the time on which it was expected; we do not say that the sun happened' to rise on a certain day; we do not say that water 'happens' to flow down a descent by the

force of gravity. That is a known law of nature. We do not say that Christmas happens' to come on the 25th of December; by the universal consent of Christendom that event comes on that day without peradventure. We do not say that a note

' happens to fall due on the day which is specified in the instrument, though it no doubt is often said that it happened' to fall due when the maker did not have the money to pay it. We do not say that Congress happened to meet on the first Monday in December, that is the law. We do not say that a Senator's term in this body happened to expire on the 3d day of March, for that is the law written in the Constitution. We do say, per contra, that Senator A. B. 'happened' to die before his term had expired; we do say that Senator C. D. 'happened' to resign before his term had expired; we do say that Senator E. F. happened' to become disqualified by accepting an incompatible office or to be expelled before his term had expired, and so on. In the common acceptation of mankind these phrases are used and understood without controversy. So obvious is their meaning that those who contend for the power of the governor to appoint

stitution, "by resignation, or otherwise," the last two words being claimed to be in accordance with a well-known maxim of interpretation of the common law, restricted in their meaning to events of a like character with resignation 3 were they not, the words "by resignation, or otherwise," would be mere surplusage and would not have been inserted; and finally by the theory of our form of government, which favors the emanation of political power, as directly as may be, from the people, and makes it seem unwise, in case of doubt, to strengthen the executive.5

The advocates of the view that a broader power exists in the executive, urge that the most important end required by public policy and designed by this and other provisions of the Constitution is to keep the Senate always full, and to prevent any State

for any vacancy whatever occurring in the recess of the legislature of a State, are compelled to resort to the argument ab inconvenienti." (Minority Report in Lee Mantle's Case.)

3 Ham v. Missouri, 18 Howard, 126; Tennicks v. Schwaltz, L. R. 3 C. P., 315; Ashbury Ry. & C. Co. v. Riche, L. R. 7 H. L., 653; Countess of Rothes Kirkaldy Water Works Commissioners, v. L. R., 7 Appeal Cases, 694, 706.

6

466 'In applying these definitions and legal rules to the clause we are discussing, if the words or otherwise' are not limited to vacancies occurring in a manner similar to a 'resignation' of a Senator, it would seem impossible to make an idea plain by the use of language. It can not refer to a vacancy occurring by the regular expiration of a term. That suggestion is excluded by the previous mention in special words of those terms, provision in like special words being made for filling them; therefore, the next clause is independent and entirely disconnected from that preceding it inasmuch as it refers and must refer to the filling of a vacancy happening otherwise than by the expiration of a regular term. The enlarging or general words used by the authori

ties must relate to the same kind of things to which the special words relate; they must be ejusdem generis, as the law says. Now the only pos

sible kindred between the accidental and the regular termination of senatorial seat is that they are both racancies, but they are not ejusdem generis, in that the one is a vacancy created by law and the other is a vacancy created by accident, and are entirely different in their legal effects. The one is a basis for the exercise of executive power, the other is not." (Minority Report in Lee Mantle's Case.)

5A Senator under an executive appointment, may or may not represent the political views of his State. He may be the mere personal favorite of the governor. The Senate, as far as practicable, should be made to represent its constitutional constituency, and in this respect should preserve the republican feature of our Union." (Minority Report of Committee on Privileges and Elections adopted by the Senate, in Phelps Case, Taft's Senate Election Cases, continued by Furber, p. 20.)

6 Citing Article V, which provides that "no State, without its consent.

from being deprived at any time of its full representation in the same. They rely upon the practical construction of the subsequent similar language that

"the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the end of the next Session." "

11

Under this, the power of the President to fill vacancies caused by the expiration of official terms during the recess of the Senate has been recognized by statute; 8 has been extended in practice, under the sanction of nine Attorneys-General, including Roger B. Taney,10 afterwards Chief-Justice of the United States, to cases where the Senate had adjourned without acting on a nomination to fill a vacancy which had occurred during its session; and is sanctioned by the decisions of the Supreme Court of Indiana under a similar constitutional provision concerning the powers of the governor. It appears by the reports of the debates of the Federal Convention that the words, "by resignation, or otherwise," were not contained in the first draft of the Constition, as reported by the Committee on Detail,12 and were subsequently inserted upon the motion of Madison "in order to prevent doubts whether resignations could be made by senators." 13 "We hear much of the word 'otherwise.' If Mr. Madison by proposing, or the Convention by adopting, the words resignation, or otherwise,' had meant to classify a series of cases like resignation, why would not Mr. Madison, eminent in his knowledge of the English language and clear in its expression, have said likewise'? "14 The latest precedent was the Montana case of Lee

shall be deprived of its equal Suffrage

in the Senate."

7 Constitution, Article II, Section 2. 8 U. S. Rev. St., § 1769.

9 Opinions of Attorneys-General, vol. ii, p. 525; ibid., vol. i, p. 631; ibid., vol. iii, p. 673; ibid., vol. iv, p. 523; ibid., vol. vii, p. 186; ibid., vol. x, p. 356; ibid., vol. xii, pp. 32, 455; ibid., vol. xvi, p. 522.

10 Ibid., vol. ii, p. 525.

11 State ex rel. Yancey v. Hyde, 121 Indiana, 20; State v. Gorby, 122 Indi

6

ana, 17. See also Gormley v. Taylor, 44 Ga., 76; Walsh v. Commonwealth, 7 Weekly Notes (Pa. S. C.), 21.

12 Madison's Papers, Elliot's Debates, 2d ed., vol. v, p. 377.

18 Ibid., p. 396. Supra, § 76, over note 25.

14 Senator George F. Edmunds of Vermont, in the Debate on Blair's Case, Congressional Record, vol. xvi, Part I, p. 23; Taft's Senate Election Cases, continued by Furber, p. 46.