Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-07-20

ton, no more tiaD man COulQ act rom an
appointment or election without a commits
sion, hence before they can pass laws or do
any other valid act Of legislation, they must
unite and form themselves into an assembly,
and before they can proceed to business,
there must be present at least two-thirds Of
the whole number. Now if the construction
contended for was admissible, that any num-
Der Of members duly assembled, can do any
business not expressly forbidden, this pro-
vision Of the Constitution would be
wholly nugatory. The Constitution per
mits quorum to do business,
but it surely does not, by express
or reasonable construction, permit a less
number; except to adjourn from day to day,
and to enforce any law in existence, made to
compel the attendance Of absent members.
Then is there any law or rule Of the House,
adopted by a quorum, authorizing a less
number Of members than a quorum to en-
force the attendance of members. There
HIS been none referred to the court, nor has
it been able to find any. Is such law or
power inherent in such a number, or may it
be inferred from the necessity or nature of
the case. The court is unable to see it if it
is, or can beinferred. 1t is readily conceded
that it is the duty, and high and solemn
duty of every member of the Legislature to
attend, when duly called by the executive or
otherwise, and to take part : its proceed
ings, no matter what may Je before it, or
how muck he may be opposed to the ac-
ton of the maiority-but if mis- sense Of
duty and moral obligation do not force
his attendance and the Legislature has
provided no law by which less number
than quorum Of the members can enforce
his attendance, the evil, no matter how
great, must be borne until a remedy is le-
gally provided; and his arrest without
authority must be deemed illegal. And it
cannot be perceived how the declaring by a
court that the acts Of one or any number of
members of the Legislature less than that
authorized by the Constitution and laws of
the State, to act in the capacity Of Legisla-
tor, to be illegal, could be construed to be
interfering with the privileges of the Legis-
lature, or conflicting with the legislative
department of the Government, simply
because the court undertakes to de-
eide between some of its members?
Surely it would never be contended that
if one, or many of the members of the Lee
gislature should, during a recess of the Lee
gislature seize and imprison another men,
Der, that a court could not interfere for his
relief, simply because they were all men,
bers of the same Legislature; members of
the Legislature are in their individual ca
pacity as amenable to law as other persons,
and have no privileges above other citizens,
except while in the capacity of Legislators in
session, or going to and from the place of
assembly. But it is said that there is no
sufficient evidence before the court showing
that the resolutions set up in the return as a
Il nd -oI H. Iogs hos. fhor
two-thirds of the whole Legislature, and
that in the present state of the pleadings
in this case, it should be taken that
petitioner alledges as one ground of
the illegality Of his restraint that
he was arrested under an order of resolu-
ton passed by a number of the members of
the Legislature less than a quorum. The
return of the defendant does not deny the
ALLEGATION, nor is the fact that the resolution
was passed by a quorum affirmed in the re-
turn, except inherently; and it was not de-
MED in point of fact in the argument. The
fact that no quorum had been obtained was
daily published in the legislative organ, and
it NAV well be inferred from the resolution
itself; it directs process against various alb
sent members, indicating that the desire for
is true that the resolution charges the abb
sent members with disorderly conduct and
contempt; these are indefinite expressions,
and might be applied to an obstinate refusal
toappear. But there seems to be distinction
drawn by the Constitution, between disor-
derby conduct in the Assembly, and mere
refusal to attend in the former they had to
be presented by the House, in the latter their
attendance is to be enforced by the laws
passed for that express purpose. In view of
all these facts and circumstances, it would
be very technical adherence to the rules of
pleading and evidence to hold that these
resolutions were passed by quorum.
Upon the whole case, after mature and
anxious reflection, and surely unbiased, and
uninfuenced by any external circumstances
and results, but alone influenced by solemn
conviction of public duty, the court is con-
strained to decide, that the return shows no
legal ground for the restraint of the petit
toner, and affords no legal justification to
the defendant for the arrest; and as the de-
PENDANT has failed to produce the prisoner
before the court, as required by the writ, an
attachment must issue against him for con-
temDt