Can the Legislature Fill Elective Offices?
March 25, 1870
The debate on the constitutionality of appointing officials to elective offices continues.
Every one remembers the desperate effort which was made two years ago to remove Mr. Johnson from the Presidential office and put into his place Benjamin Wade, of Ohio. If the impeachment charges had been sustained, Mr. Johnson, a man chosen by the people, would have been compelled to surrender his office to Ben. Wade, the appointee of the Radical Senate. The Underwood Convention, at the time in session in this city, passed resolutions in favor of removing this officer, elected by the people and filling his place with one elected by a body of mere partisans. No one ever heard from Mr. Johnson's counsel-who were among the most learned lawyers of this country-an intimation that it would be a violation of the federal Constitution to fill a vacancy in an elective office with an appointee of the Senate. The Congress had power to provide for filling such vacancies, and no one had the hardihood to deny its power. Referring again to the question of the power of the legislature of Virginia to fill the vacancy in the office of LieutenantGovernor itself, instead of putting the State to the immense expense of a popular election, we quote the provision of the Federal Constitution relative to vacancies in the office of President or Vice-President, and also the provision of our State Constitution relative to vacancies in the office of Governor or Lieutenant-Governor. Article 2, section 6, of the Federal Constitution is as follows: "In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President; and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act a President, and such officer shall act accordingly until the disability be removed or a President shall be elected." Congress did act, but it did not pass a law authorizing the people to elect a new President or Vice-President. On the contrary, the act of Congress provides, as we stated yesterday, that the Speaker of the House of Representatives shall succeed the Vice-President as President; that the President pro tempore of the Senate shall succeed the Speaker, and that the Chief Justice shall succeed the President pro tempore. Did anybody ever hear it intimated that this act of Congress was unconstitutional because the Presidency is an elective office? Article 4, section 10 of our State Constitution is as follows: "Section 10. In case of the removal of the Governor from office, or of his death, failure to qualify, resignation, removal from the State, or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve upon the Lieutenant-Governor; and the General Assembly shall provide by law for the discharge of the Executive functions in other necessary cases." Now, it is plain that this last section is patterned after that in the Federal Constitution, and that if Congress had a right to pass the law we have referred to, the General Assembly of Virginia had the right to elect a Lieutenant-Governor. For if Congress can provide that two of its own officers shall successively take the Presidency in cases of vacancies, surely the General Assembly of Virginia has the same power, under an exactly similar constitutional grant, to provide that the Speaker of the House of Delegates and the President pro tem. of the Senate shall successively take the office of Governor if Mr. Walker and Mr. Marye should both become unable to fill it. And if the General Assembly thus has the power to fill a vacancy in an elective office caused by the death or resignation of both the Governor and Lieutenant-Governor, no one can dispute its power to fill a vacancy caused by the death or resignation of either one of them. This argument leads to this unavoidable conclusion-namely, that the General Assembly unquestionably has the power to fill a vacancy in any elective office in any manner which to that body may seem wise and expedient. There is no room for doubt on this subject.
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“Can the Legislature Fill Elective Offices?,” Reconstructing Virginia, accessed December 3, 2022, https://reconstructingvirginia.richmond.edu/items/show/1608.