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 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 vacancy, 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 oc-urrence 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 vacaney, 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

41 See Haynes, The Election of Senators. Also Sen. Rep. 530, 54th Cong., st Sess.; and Sen. Doc. 400, 57th Cong., 1st Sess.

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.