tion by the one recognized by the other State authorities, but it has exercised the power to examine into the facts and determine which of the two contained a majority of members lawfully elected, although the other may have been organized with technical regularity. Thus, where a senator had been elected by a legislature, of which members had previously extended their own terms in alleged violation of the Constitution, there having been no election of their successors, and it appeared that bills passed by the body thus composed were recognized as laws of the State; the Senate seated a member thus elected, although a subsequent legislature had passed an act declaring the election void and chosen another.26 Where a body claiming to be a State senate had been recognized by the governor and the lower house, the Senate of the United States refused to examine the question whether it had lawfully obtained a majority in favor of the person chosen by admitting two persons who had not, and excluding two who had been, elected members.27 But where two bodies each claimed to constitute the legislature of the State, and each elected a senator, the Senate has examined into the question as to which of them was composed of persons duly elected to the same.2 28 In one case, it refused to recognize that organized by a majority of those holding regular certificates of election, when it considered that a majority of the other had been in fact legally elected, and the latter had been subsequently recognized as the legislature by the governor.29 The report said:

"We are called upon to choose between the form and the substance, the fiction and the fact; and, considering the importance of the election of a Senator, in the opinion of your committee the Senate would not be justified in overriding the will of the people as expressed at the bal

26 Potter v. Robbins, Taft's Senate Election Cases, continued by Furber, p. 83. But see the strong minority report by Silas Wright; Whiteley and Farrow v. Hill and Miller, ibid., p. 264; Lane and McCarty v. Fitch and Bright, ibid., p. 148; Louisiana Cases, Spofford V. Kellogg, ibid., p. 471.

27 Case of David Turpie of Indiana, A. D. 1887, ibid., p. 623. But see

Corbin v. Butler, A. D. 1877, ibid., p. 541.

28 Sykes v. Spencer, A. D. 1874, ibid., p. 515; Louisiana Cases, A.D. 1873, ibid., p. 385; Corbin v. Butler, A. D. 1877, ibid., p. 541; Clark and Maginnis v. Sanders and Power, A. D. 1890, ibid., p. 631.

29 Sykes v. Spencer, A. D. 1874, ibid., p. 515.

lot box, out of deference to certificates issued erroneously to persons who were not elected." 80

The authority of this has been shaken by a later decision.31

Where States were in insurrection and occupied by military force, the Senate determined that there could be no free choice, and that, consequently, the action by their respective legislatures in electing senators was void.82 During the Reconstruction, both houses of Congress refused to admit senators from States which had been in insurrection and which had not ratified the Fourteenth Amendment.& 33

Where senators and representatives were elected before the expulsion of their predecessors, before the admission of a Territory into the Union as a State, and before the readmission of a State into the Union after Reconstruction, it was held that the admission related back so as to ratify their election.35 A senator thus elected was not, however, admitted to the Senate after the passage of an enabling act but before the admission of the State.36 It has been held that an election of a territorial delegate before the organization of the territory is void. 37

80 Taft's Senate Election Cases, continued by Furber, p. 521. See a larger quotation from this report, infra, Ch. XVI.

31 Clark and Maginnis v. Sanders and Power, A. D. 1890, ibid., p. 631, 637: 66 The report on Sykes v. Spencer, decided by the Senate in 1873, is relied upon as supporting an opinion contrary to that which we have stated. If so, we dissent from it. But it is to be remarked that in that case, which was upon an election held less than seven years after the close of the war, the doctrine of the report is not relied upon in the debate. It is further to be observed that that case is to be distinguished from this by the fact that there it was conceded that the persons who had not certificates were duly elected."

32 Cases of Fishback, Baxter and Snow, ibid., p. 202; cases of Cutler, Smith and Hahn, ibid., p. 210; cases

of Segar and Underwood, ibid., p. 214; supra, § 38.

33 Jones and Garland v. McDonald and Rice, ibid., p. 244; Marvin v. Osborn, ibid., p. 245; Whiteley and Farrow v. Hill and Miller, ibid., p. 247; Hart v. Gilbert, ibid., p. 282; supra, $ 38.

34 Case of Willey and Carlile, A. D. 1861, ibid., p. 177.

35 Case of Phelps and Cavanaugh of Minnesota, 1 Bart., 248; Hart v. Gilbert, Taft's Senate Election Cases, continued by Furber, p. 282; Reynolds v. Hamilton, ibid., p. 285; McCrary on Elections, 3d ed., § 210. Contra. But see case of Blount and Cocke, Taft's Senate Election Cases, continued by Furber, p. 77.

36 Case of James Shields, Taft's Senate Election Cases, continued by Furber, p. 171.

87 Case of J. S. Casement, 2 Bart., 516.

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. bers of the equal classes were put in the box. Then each senator

The num

§ 78. 1 Constitution, Article I, Section 3. See supra, § 76, over notes 19–21.

The

drew one and was classed according to the number he drew. 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