The Pulaski citizen. [volume] (Pulaski, Tenn.) 1866-current, 1866-12-07
[Coneluded from first paqel

ties, IN the apportionment OF members OF
the House Of Representatives, shall be made
up to such county or counties in the Senate |
as near as may be practicable"
These provisions leave no doubt that the
trainers of our Constitution intended that |
the General Assembly should be composed !
of representatives elected by the people |
from the several counties and districts all |
over the State. They have sedulously pro-
vided for the representation of fractions of
counties either in the House or Senate =
They could not have shown more explicitly
their deliberate intention that the General
Assembly should represent the whole peo-
pie upon whom it is dependent. 1t was
never intended that part of the State
might alone be represented, or that a domi-
nant majority might exclude minority for
any cause.
To constitute General Assembly there
must be representation of the entire State.
All the members need not be in attendance.
but all must have the right to attend If
there be not a full and fair representation,
unless by the wilful act of the electors Them
selves, there can be no constitutional As
sembly. A body, although styling itself
the General Assembly. which, in violation
of it's duty, excludes the representatives of
par. of the people, either by mere physi-
cal force or by unlawfully excluding them,
is in fact not General Assembly within
the meaning Of the organic law of this State.
The only remaining point to be cOnsid-
cred is, whether the Courts can, in the ad-
justment of private rights, take notice of
these unconstitutional acts of the Senate and
House in wrongfully excluding their mem
bers. 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 reluctant they might be to call in
question the conduct or proceedings of
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 measure is in fact
law, must be determined by the Courts.
An act may be void because violative of
some positive provision of the Constitution,
1t may be nudity becsuse not accompanied
by the Constitutional forms which determ-
inc 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 is law of the land, binding
on the citizen, is another. When the in
validity turns upon the conduct Of the Leg
islature themselves, the task of the court is
indeed very delicate one, and, fortunately
for our country, without many preceden ts.
In one of the Northwestern States, be-
Iieve, it has been judciously decided by It's
courts that an act appropFiating a very
large body of land to a railroad was void
it being shown that majority of those vot-
ing in favor of the measure were bribed.
Ifit were made to appear that a supposed
law had never been passed by the General
Assembly at all, but had been fraudulently
inserted In the statute books by the COM
bined action of the Speakers of the two
Houses, and the Secretary of State, can
there be doubt that the courts could pro-
nounee the supposed law a nudity? (Turley
VS.. county of Logan, IL sec. 157.
If only a fraction of the Legislature, with
its officers, were shown to have forcibly ex-
cluded the rest of the members, and setting
themselves up as Legislature, to have
passed aud published what they pleased TO
term laws. can there be as little doubt that
the courts could and ought to renounce the
ESQ called) acts invalid? And can there be
any difference in principle between these
cases and the one before us? I can see
none. 6. s -a ..i 'r.srs ..
The body whIch undertook to pass the
act now undeF consideration had ceased 10
be a constitutional General Assembly by its
wrongful exclusion of a number of the rep
resentatives q the people,. To hold other
wise would. be to put the people at the mer-
cY Of dominant faction, aud make the
courts, which ought to be the impartial ad-
ministrators of justice, plant tools of in
justice and wrong. Laws, to be binding,
must be the deliberate act of irregular Gen
eral Assembly, fairly representing every
portion of the State. III. ...af-., -.
All the representatives., as ] have before
said, need not be present, but all must have
the right to be present If any material
part OF them are wrVugfully excluded, IL
would not perhaps be going too far TO say
(although not Necessary in this case to be so
held any one of them be wrongfully
excluded-the body ceases to be the Cen
eral Assembly. and becomes an unauthor-
lied mob. r.aae Eaa ta.F : .
II, am correct IN the foregoing reason
ing, the act IN question is simply null and
void, and all acts done under itillegal.
The proper office of a mandamus ia to
enforce the performance of official duty,
and it will not be to compel an officer ~
other person to do an act which il vouI5
not have been lawful for him 10 do witbout
its command. johnson aud others vs.
Lucas and Gather, Ia Hump. 3O6.) It
therefore becomes the duty Of the court to
dismiss the petition Of the relator With
costs. .....e -ae -.