Eastern times. [volume] (Bath, Me.) 1846-1857, 1854-02-09
OPINION.

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The undersigned, in response to the order OF
the Senate, dated January 80, 1894, presents
some of the considerations for the answers by
him returned to the questions propoundcd by
the House of Representatives, January IL,
1854. TO the Justices of the Supreme Judicial
Court, and the reasons for his non concurrence
with a majority of the Court in all the answers
by them returned.
The powers of our government, conferred by
the constitution, are, primarily, divided into
three distinct departments-the Legislative,
ErecttiUe, and Judicial These departments
are severally entrusted with certain specified
powers which they arc required to exercise,
each for ITSELF entirely independent of the 9TH
er. The powers contded to these departments
are in many instances, subdivided and distrib-
uted among different branches, and upon these
branches are conferred powers, to be exercised,
sometimes in concurrence with each other, and
in other cases, by independent action thus
constituting government, at once free, and so
regulated by checks and balances arising out
Of the distribution of its powers, as to prevent
precipitate and inconsiderate action, in times,
when by reason of excitement, sing bodies,
acting under a common impulse, may be in
danger of running into error.
Though our government is thus complex in
its form, with important powers contided to
the independent action of its different depart
ments, and the different branches Of those de-
partments, yet there are in it no conflicting
powers, but the legitimate action of the whole
will be found to be entirely harmonious
Thus, when a power is conferred upon de-
partment or branch, to be by it exercised indie
pendently, the exercise of that power is either
by distinct provision, or by necessary mplica-
ton, withheld from all others.
In the construction of provisions of the con-
stitution. which may appear ambiguous, regard
should be had TO the general scope and object
of the whole instrument, and when it is doubt
full to which department or branch the exer-
else of an independent power belongs, it
should be assigned to that, by which. from its
character, it can be most appropriately exer-
cised.
These considerations being kept in view
when cases Of apparent conflict arise, will al
ways afford a safe rule of Interpretation.
The legislative power of the government is
vested in two distinct branches, house of
Representatives and Senate, each having a
negative upon the other. Some of the powers
conferred on these branches are common to
both, and are 10 be exercised in concurrence.
Others are conhded TO the separate action of
each, and are 10 be exercised by each with alb
solute Independence of the other.
Prominent among the latter, stands the pro-
vision, in the third section Of part third, article
fourth, which declares that leach house shall
be the judge of the elections and qualifications
of IFS own members This provision, SO far as
the senate is concerned, may be deemed rather
declaratcry Of existing rights than as confer
ring new powers. Section five, of article four
part I'd, conterS upon the senate the power 10
determine who elected to be senators, by
a majority of the votes, in each district" and
as a necessary correlative, who are not elected
or rather, in what districts, if any, vacancies
exist.
In the same class of independent powers, is
found the power Of the senate to try all i'm
peachmen;s, and Of each house to choose its
own officers to compel the attendance of alb
sent members 10 determine the rules of its
proceedings; to punish its members for disor-
derby behavior, to keep journal OF its pro-
ceedings to punish persons not members for
disrespectful disordcrly be havior in its pres
ence; or for obstructing any of its proceed
ings; or for threatening, assaulting or abusing
any of its members for anything sid, done, or
doing in either house.
These powers can only be exercised by each
house, according to its discretion, and neither
has the right to exercise them for the other, or
in any way to dictate the manner in which
they shall be exercised by the other. All Of
them may be exercised when majority of
members, or a quorum for doing business is in
attendance, and many Of them when less than
a quorum is present.
The result of the possession of these indie
pendent powers is to authorize each branch, or
house, to perfect its own organization. 10 the
House this power, in its fullest extent, has
never been denied, or questioned. 1t is pow
CT incident to. and inherent in all independent
deliberatiYe bodies, founded upon the most
universally recognized principles Of parliament
AIRY law.
Article fourth, part second. section fourth.
provides, that the governor shall issue a sum
moas TO such persons as appear to be elected, to
attend and take their seats
Like the ere lentials of the members Of the
house. the summons Of the governor is prima
facia evidence Of clcstion. and authorizes those
who appear % be elected in the first in
stance. 10 take their seats as members Of the
senate.
These members, when assembled, the 9Th
section recognizes as the senate" and confers
upon IL the power. and imposes the duty, 70
determine who are elected by majority Ot the
votes. 90 be senators in each district This
section also oontcmplates that vacancies may
be- found 20 exist. aud makes no distinction in
the power Of the senate. dependent upon the
number q those vacancies. but in all cases
where vacancies exist. the duty Of the senate
and the mode % IL procedure in eaecting its
organization are the same.
IL has been supposed that the power 70 act,
does not exist, on the part Of the senate, unless
a majority Of is meinbers appear 20 be elected,
and shall have been summoned By the govern
or. This opinion i based upon that clause of
section third. pat third Of article fourth
which declares that "a majority shall consti-
tutc a quorum for the transaction of business.
In constituting particular provisions Of the
constitution, care should always be taken to
observe the connection in which they occur.
Fart second, Of article fourth. treats of the
e'eeuon and qualification of senators. and the
0y""-atton OF the senate. Part third, of the
same aruce, treats Of the Legislative power"
after both branches have been duly organized
and are IN condition to act as legislature:
ana tne clause referred to. as limiting the pow
or OF the two houses when less than q majority
is present, Is manifestly intended n orr,Iy ~
the transaction OF that kind of bnsinnSs ~;
dent to legislation. Any other constr,,a, 49,,
would be liable to obstruct and wholly nra,.o,.
the organization of the senate, even W.
majority appeared to have been elected ga
had been summoned by the governor. An exN
animation of the returns, or other evidence
might disclose errors which would compel the
senate to determine, that only part of those
who had been summoned. less than a majority,
had actually been elected. Under the con-
struction contended for, that body would
therefore be rendered powerless, unable to pro-
coed. and that branch Of the legislature be
practically dissolved. The same result "would
follow when less than majority were sum-
moned" by the governor
The constitution is not Justly chargeable
with any such self destrnct;yo nr;co;nlo, 7,