The Bismarck Tribune Newspaper, December 30, 1925, Page 3

WEDNESDAY, DEC EMBER 30, 1928 SENATOR MOSES’ BRIEF IN THE SENATORIAL SITUATION BELIEVED =| PREPARED IN FARGO. TO HAVE BEEN | Minority Report of Committee on Privileges and Elections | Concerning It is reported on good authority that the brief which Senator Moses sent to Gov. Sorlie in reference to his appointive power was practically prepared in Fargo. Some declare that while the hand was Moses the pen was that of Burleigh Spalding, legal advisor of the Fargo political. machine, director of the destinies of the real and the Republicans of the sovereign f North Dakota, ince the death of Alexander Me- Renzic and Judge N. C. Young, one of the best informed and most astute political manipulators is Burleigh Spalding members of the constitu- tional convention, congréssman, su- preme court judge and office holder for u half a century par excellence. What Iding does not know about h Dakota _ politi its leaders and its shortcomings is hard- ly worth bothering about. “He knows his political stuff and it is felt in e ‘fight ay state rected the shington. Emphasis Not Properly Placed Some of the Republican leaders shington, however, are not pl ed with the y in which the le; end of the fight against Nye was) handled. Too Ittle emphasis was; d upon the constitutional provi- | ions of North Dakota relative to} ppointments and also the | cance 0} ction 696 of the North} Dakota Code as amended in 1917 by chapter 249 of the session laws, Copies of the minority report sub- ted by Senator Stephens were re-| ceived in Bas: It is pre-| sented here’ “The that he is North United right to a scat in the enged, the ground of challenge being that the had no power to make the ment. The Committee on P and Eleetions h vot upheld this contention, and as T donot eS eenth Amendment the seventeenth amendment to the { the United States tate shi fill such 1 is: power the executive thereof to make temporary appointments — until people fill the v by election aw the legislature This amendment 1913. It was held by the that the Legislature of North D: powered the governor to] a ea temporary appointment and, erefore, he was without author to appoint Mr. Nye; that the only: authority that he had was to issue a! writ of election so that the people could vote for and elect Mr, Ladd’s successor. If the legislature failed to grant the governor this authority, of course Mr. appointment was il- legal and id and he should be de- nied the right to sit in the Senate. North Dakota Statute There is a statute in North Dakota to which attention is now directed. Ip is section 696 of the code of that State, as amended in 1917 by chap- ter 249 of the session laws. This section, as amended, reads as fol- Vacanies, how filled: All-vacancien, except in the office of a member of the legislative assem- bly, shall be filled “by appointment as follows: 1, In the office of State’s attor- ney, In which a vacancy has occurred by reason of removal under section of the Compiled Laws of North Dakota for the year 1913, by the board of county commissioners by ith the advice and consent of the governor, 2. In county and precinct offi the board of county commission- ancjes in such board. f civil townships, by s of the peace of such together with the board pervisors 0 majority of them; and if a vacancy occurs from any. cause in the board of supervi- sors, the remaining members of the board shall fill such vacancy 1. In State and qlistrict by ‘the governor. This law was enacted about four years after the seventeenth amend- iment, was ratified, 0 the offices, net the requireme; vy teenth amendment with reference to empowering the governor to make a temporary appointment? Argued That Govern Cannot Ap- The majority Ffecided that it’ docs not grant such power. [t was argued in the committee that the tute gave no such power to the governor for several reasons. I, The legislature had no such in- ion when this statute was en- In support of that argument, at- tention was called to the fact that for a long time prior to the adoption of the seventeenth amendment there had been a statute, identical in language with the statute as_amend- ed by the acts of 1917 in so far as a provision authorizing the governor to fill such vacancies is concerned. That part of the statute which re- lates to the power of the governor to fill vacancies was the language, “in State and district offices.” As the words “State and district offices” were written into the law many years before the Constitution was amend- ed, so as to provide for the election of Senators by the people, and as the statute was reenacted without any reference to the seventeenth amendment and without any addi- tional grant of power to the gover- nor so far as using any different language, it .is argued that it was not the intention of the legislature to grant such power. I do not agree with the argument. It was unnecessary for the legisla- ture in granting the governor power to make lla es weg appointments to refer in any w&y to the seventeenth amendment; nor was it necessary for the legislature, in reenacting the sta- tute, to make use of words different from those used in the original act, if the language originally used was inclusive enough to include a Sena- Siginad esr airtel @ Sufficient ‘other words, if the legislature, ing for a grant of power ‘in that of|¢ near | 1 \to have cy| statute is in | merit in this argument. yjis that a ight of Gerald P. Nye to Senate Seat Holds Appointment Is Valid i at a later that is added con- it is sufficient to use the language used in the i cert contingencies, time, enacted legislation broad enough to cover an tingenc identi al law in opt} n ber of the leg- comprehensive | enough to include a ney in the United States Senate. nsiveness of the term it s not lessened now AUSE the same term was used with refer- ence to the power of filling vacan cies before the adoption of the se’ teenth amendment. It is true th the amendment had added anothe to the class of vacan the filling} of which the legi s empow- | ered to make pro’ . | So we find that, according to the | language used in the title of | statute, the legislature ing to provide for the 1 filling with : in line | of filling | There is not ingle 1 in the State for filling the vaca by election, except where there is constitutional provision to that Fall of} signifi- | fee! Fach State Has Right Representation How natural, then, that the legi lature should p legislation a provided for the seventeenth | amendment. nxious. full in Senate, ght to full and representa the framers of the under Constitution yoargued that thi invalid so far as it relates | to authority on the part of the gov Ise conumis nly until hould be held. ‘T) no r| | Uns er a le Of course, the go’ and his right to to be considered the light of the include: trued in| seventeenth anend: | ment; and the time that his ap-| pointee can serve would be limite and restricted by the provisions of that amendment. Cases In support refer to two ¢ ers (61 ebr. The legisl 620) the court ure has clearly here ¢ pressed its will, but it has gone far; it has transcended the limi its authority. It has, in an unmis - ble manner, signified its purpose not only to authorize the commit- ment to the reform s children under 16 though guiltless inced a criminal tend without proper parental The legislature having dec! will, and its command to the courts being in part valid and in part void, the deci question is, Shall section 5 be given effect ras it is in ord and agreement with the par amount law It seems that both ood sense and judicial authority re-} quire that the question should re ceive an affirmative answer. The other case Commiss George (104 Ky, 261 se there appears this lang} The act construed created of penitentiary + commi: provided that of the first board one; should hold for two years, one tO four years, and one for six yeu and that thei! sors should Me elected for six § The constitu- tion forbade the creation of officers with a longer term than four years, The act was held to create a four- ir term and to be valid as so mod- ve The language employed shows that the general assembly was willing that one of the commissioners should hold his office for six years-—-two years longer than the constitution will permit. As the general assem- bly expressed illingness that one of the commissioners should hold for two years longer than the con’ tion permits, it is certainly ri able to conclude that it was the will of that body that the commissioners should hold f vin’ the dl. s it makes the tead of four, still ct is completg e purpose and intent of the g 1 assembly that the commiss should = manage and control the penitentiaries — can he effectuated by eliminating from the act that part which attempted to ‘ix instead of four years. The holding of these cu to s effect: That the appointment is not invali but that the time pointee can hold is limited; that when some is duly elected, the person who was appointed is ne longer entitled to hold the office. Senator Ix a State Officer |. Age it is contended that ute referred to does not in t United States Senator in its grant of authority to the governor to fill vacancies, although the ley lature may have intended to so in clude Senators. The language of the statute is “in State and district. offices.” So th question arises:. Is this langua broad enough to give the authori to appoint a Senator? Of course, it does not refer to a Senator in terms. It might well have been more definite. But there is strong legal authority for the contention that a Senator is a State officer. The Supreme Court, in the Burton case (2@2 U. S. 344) says: While the Senate, as a branch of the legislative department, owes its existence to the Constitution, and participates in passing laws that concern the entire country, its Mem- hers are chosen by the State legisla- tures and can not properly be said to hold their places under the Gov- ernment of the United States. In United States v. Mouat (124 U. S. 307) there is this langua; Unless a person who is in the ser- vice of the Government holds his place by virtue of an appointment by the President,’ or of the courts of justice, or hedas, of departments ‘authorized by law to make such a pointment, he is not strictly an offi cer of the United States. The holding of the court is to the! same effect in United States v. Ger- term si the balance of the and enforceab! | | two, jot |p maine (99 8. 309). In the th“ Congress‘ an effort was made ~ to impeach William}, Blount, a United States Senator, The! proceeding was dismissed on the ind that he was not a United ites officer, Dr. Moore Quoted William Bennett Moore, pro-! rvard University, in his vernment of the Unit- Dr book “T ed States The b: Con- | gress, therefore, in- Members in Congress, the ple of the several er hand, are repr va ing number of. Representa ntives the lower branch of Con both cases the unit the Stat Congress accordi i nvention of ember whieh: the are not office f ernment Tucker's page 414, Nowhere Senator or san offic or even as article 1, “Constitutional Law,” n the Constitution Representat r of th an officer section 6, Constitu the distin a Senator and a Repre civil officer of the is very clearly, set forth. In anothe M Sta not of th te Th ntennth amendment says The ate of the United States hall be composed of two Senators’ from cach : Again it say When vacancies happen in the rep- resentation of any State in the § ate. 1 onstituents Se ng of Words Often Instances without number where the meaning of tention of Sutherl tion say When the from the Statutory Construe intention can be collect to obv y such intention. ntion of th liters The use or provision is cecords with the purpose of the part. ¢ hould be kept cope a * The that the maker purpose rdopted sin harm * Words rent parts of as na ubject of the » pend sense with the purpose mer matter which 1 _THEATRE it 3—DAYS- TODAY Wednesday - Thursday Friday ATRE CECIL B! DeMILLES § poguct. tion See the remarkable views of the Grand Can- yon —the thrilling rail- “road accident—the won- drous glory of England of the 17th Century— the reawakening of hearts and souls in this remarkable screen pro- duction—DeMille’s best. OUR GANG COMEDY “THE LOVE BUG” |SORENS requires: tha The s in their lit- “lun testion » members of i knowledge of any rate, the n knows the right to pre f the Weed liar with At ave the particular so large and extensive s those used her } statute; i act, they and extensive exp} ther parts the r egislature, it is th t to the larger expre Is Broad stated, not | in its import arts of the | 1 he whole | tion to the facts of the more uble conclusion essions used ont of Mr. Ny intention | ized, and that he is duty tojseat in the Senate Seat Would Inflict Serious rong on ° this case, hat sown entitled ar is ton To Deny yuage 1 been To deprive wrongfully i importance rth Dakota o ntation it was the nt; the amend iter adoptios ent in the e been used— “all vacan w As the the Constitution ritten i artic without. its consent mend:ent had heen adopt- years before the ute acted, no. one will seriously HARDWARE FOR HARD WARE rove deprive 2 to deny seated would be kota. that de. ul be deprive equal sat frage in the if Mr. N Lseat is Valid in every 1 suggested, — the provides appointment the the Ove larity controll presumption uniustifl Mr. Nye rong upon the Therefore, dyment are lopted claring that Gerald I. Nye is et titled to 1 wy a seat in the S from the State HW dakota Db. STEPH pat the que: enator is an officer avily ith that except NS. eport FE. D. conclusion of , but for reason SMITH the not 1 concur srexoing re nod thereit M M. NEELY eas al North tion} Inve ives _ PAGE THRER He died in a few am was thoaght by family physician to have | cleaning a revolver when it was discharged. | | Program W ill Be Given at Prison | Next Tuesday Eve | The jto ha ram which was the peni Christm t riven —-# | tiary postpone It Last Minute News Bulletins Kan City, De Four robbers lugged away 000 in silver and. currency day when they held up the le State Bank, town Are The Helling Agency General Insurance and Bonds. First Guaranty Bank Bldg. one 8277 —‘ Bismarck, N. D. —P)— Albert 0, di ‘at mt * was found today medical shot through the HARDWARE FOR HARD WARE Give You Some Real Bargains in Aluminum, Granite, Tin, Copper and Galvanized Ware Sale Starts Dec. 31st and Lasts 6 Days if interested in Any of the Following Articles You Should Come Early, As Our Stock is Limited Lot No Aluminum Ware-—500 Pieces. Round: Roasters, value 10 qt. Pail, value 6 qt. Convex Kettle, value 8 qt. Convex Kettle, value ttle, value 8 qt. Preserving Kettle, value. . 1! qt. Double Boiler, Large size Collander, 14 qt. Dish Pan, value 21, qt. Water Pitcher, 6 qt. Preserving Ke value... value... value... Lot No. No. 1 Heavy Galvanized Tub, regular $1.75 No No. ». 2 Heavy Galvanized Tub, 3 Heavy Galvanized Tub, regular $2.25 5 gal. Never Fail Kerosene Can, regular $2.50. 3 gal. Never Fail Kerosene Can, regular $2. Lot No. 7 White and White Tea Kettles, regular $ regular $2.00. YOUR CHOICE FOR ANY PIECE ONLY \75° $1.50 Special $1.65 $1.85 2.00 1.65 . Special . Special Special. 00. Special 12 qt. White and White Water Pail, regular $1.25. Special..85¢ Lot No. 2 No. 9, 20 oz. Copper Boiler, the heav- lest ever suid in the city, regular $7.50 value. Special. No. 9 14 oz. Copper Boiler, regular $6.25 value. Special $ Lot No. 3 No. 9, 3X Tin Boiler with 14 oz. Cop- per Bottom, regular $4.50 value. Special Lot No. 4 No. 9 Heavy Galvanized Boiler, reg- war $3.50 value. Special Lot No. 6 12 qt. Extra Heavy Galvanized regular 80c. Special 12 yt. Heavy Galvanized Pail, ular 60¢. Special 14 qt. Tin Dairy Pail, long style, reg- ular $1.25. Special. . 12 qt. Tin Dairy Pail, heavy, regular 5c. Special 12 qt. Tin Dairy Pail, hea wy, regular 65¢. Special 14 qt. Tin Bread $2.25. Special 17 qt. 2X Tin Bread Raiser, $ 2.75. Special poles ape: rail, reg- Raiser, “regular A Special Discount of 10% on Any Other Item in Our Stock § During This Sale