Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1866-11-24
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cause To constitute General Assembly
there must be represention of the entire
State. All the members need not be in at
tendance, but all must have the right 10 at
tend. If there be not full and fair repre-
sentatiOn, unless by the willful act of the
electors themselves, there can be no consti-
tutional assembly. A body, although styling
itselfthe General Assembly, which in viO-
lation Of its duty, excludes .her representa-
tives of a part Of the people, either by mere
physical force or by unlawfully excluding
them, is in fact not General Assembly
within the meaning of the organic law Of
this State. E.e.Tt L.. 80 10 T.F
The only remaining point to be considered
is, whether the courts can, in the adjustment
of private rights, take notice Of these uncon-
stitutional acts of the Senate and House in
wrongfully excluding their members. And
here the authorities are uniform upon the
principle involved, although no decision can
be found upon the precise state Of facts The
courts have always said that, however re-
luctant they might be to call in question the
conduct or proceedings Of a coordinate
branch of the government, they would be
guilty of plain violation Of duty if they
failed to act in proper case. They have
also always said that the enactment of laws
was the province of the Legislature, but
whether particular measures in fact law
must be determined by the courts. An act
may be void because violative of some posi-
tive provision of the Constitution. 1t may
be nullity because not accompanied by
the constitutional forms. Il may have all
the constitutional forms which determine
its authority, and yet be held invalid be-
cause, in reality, not passed by the General
Assembly. The decision of these points falls
clearly within the jurisdiction of the Courts.
To pass an act is one thing, and to decide
whether that act is a law Of the land, bind
ing on the citizen, is another. When the
invalidity turns upon the conduct of the
Legislators themselves, the task of the Court
is indeed very delicate one, and, Fortunate
" for our country, without many precedents.
In one Of the Northwestern States, believe,
it has been judicially decided by its Courts
that an act appropriating very large body
of land to a railroad was void, it being
shown that majority of those voting in
favor of the measure were bribed. If it
were made to appear that a supposed law
had never been passed by the General AS
sembly at all, but had been frandnlently IN
serted in the statute books by the combined
action of the speakers of the two Houses,
and the Secretary Of State, can there be a
doubt that the Courts could pronounce the
supposed law a nullity (Turley VS.. Coonty
of Logan, II sec, l57- .rF1a rarH
If only fraction of the Legislature, with
its officers, we're shown to have foreibly ex-
cluded the rest of the members, and setting
themselves up as a Legislature, TO have
passed and published what they pleased to
term laws can there be as little doubt that
the Courts could and ought to pronounce
the (so-called) acts invalid? And can there
be any difference in principle between these
cases and the one before us :? L can see none.
The body which undertook to pass the act
now under consideration had ceased to be a
Constitutional General Assembly by its
wrongful exclusion Of number of the repre-
sentatives of the people. To hold otherwise
would be to put the peopleat the mercy of
dominant faction, and make the Courts,
which ought to be the impartial administra-
tors Of Justice plant tools of Injustice and
wrong. Laws to be binding must be the de-
liberate act of regular General Assembly,
fairly representing every portion # the
State. All the Representatives, as l have be-
fore said, need not be present, but all must
have the right to be present. If any mate
rial part of them are wrcngfully excluded,
it would not perhaps be going too far to say.
(although not necessaryin this case to be 50
held) if any one of them be wrongfdlly ex-
cluded, the body ceases to be the General
Assembly, and becomes an unauthorized
mob.
If lam correct in the foregoing reasoning,
the act in question is simply null and void,
and all acts done under itillegal. E8E|
The proper Office Of mandamus is to en-
force the performance of an official duty,
and it will not lie to compel an officer or
other person to do an act which it would
not have been lawful for him to do without
its command. johnson and others VS.. Luz
cas- & Gather, IL Hump, S06.) 1t there
fore becomes the duty of the court to dis
miss the petition of the relator with costs.