Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-25

court could be called upon TO administer it,
and ii would be in contempt of nobody that
any court or citizen refused 10 recognize it.
But Just here we are met by the proseeu-
ton with a question Of law. They say
the Legislature is alone the Judge of its
action-that the Judiciary have no right
to look to its journals in order to ascertain
whether an enactment Received majority
Of the votes cast whether the bill was
properly and correctly enrolled; whether
it was signed by the Speakers, or in those
States where ii is required, by the
Governor; and TO give application Of this
principle 10 this court they insist that
Judge Frazier did not have the legal right
to enquire whether or not the resolutions
ordering the arrest Of Williams and others
were passed by majority vote, or to en-
quire whether, at that time, there had as
sembled at the capitol a quorum Of the
members. This would be an exceedingly
dangerous doctrine, If admitted to be cor
rect. Because, under this rule, one de-
partment Of the government might be
usurped in defiance of all authority and
neither the judiciary or executive could
enquire into it, and the life and liberties of
the citizen passed upon and legislated
away without the power of remedy. If the
Judiciary could not inquire into these ques-
tions, when a proper case was presented,
what power cauld L. it not better to
allow the question to be passed upon by
the peaceful means the judiciary affords,
than compel the citizens to revolutionary
means? Besides, the argument inn
plies that one, two, three, or any
number of members less than a quorum
- q 81. I'll I
luton ordering the arrest and Impeachment
of the other seventy or eighty members,
because if less than quorum could do
these acts-We are not permitted TO stop
short of any numbeT--and one or two
members might meet, each pass upon the
others certificate of election and dualifca-
ton as member5-Create all necessary Off
GERS, Sergeant-at-Arms etc, and arrest all
the remainder. This is the necessary result
and inevitable consequence of the position
contended for. 1t might be extended
and presented to the court in many and
various forms, which the solemnity and
gravity of the occasion, do not allow. /
know that many eminent lawyers, without
examining into the question, have thought
otherwise, and it would not detract from
their reputation to have so held. Judge
Harrison told you that he so thought until
recently, when he had occasion to look into
! the question. But we will not content our
selves with reference TO unconsidered off
! hand opinions Of gentlemen, but look into
! the action of the courts of other States and
! countries, for it is to these we must look for
light wheu our own decisions fail u.s. And
| | will ask the court to keep in mind that the
! authorities | shall refer tOrelate to the action
of both houses Of the Legislature and not as
in this case 10 one branch of the General
/ Assembly, because if any constitutional
veil is thrown over the acts of the Legia-
lature, beyond which the eye of the Judi
ciary Is not permitted to penetrate, it
would be an extension Of the doctrine, un-
warrented by any decision with which
am acquainted. To hold that this rule
applied to one branch, or a part of the
! Legislature, aud to extend still further and
make il apply to any number of members
less than a quorum of either house, would
be to extend il beyond safe credality, and
destroy the constitutional requirement in
regard to maiorities and two thirds all to-
gether; and the very essence of the con-
stitution would be simmered away by con
struction. The Court in the adjustment OF
private rights, have, at all times, exercised
the powers of pronOuncing acts Of the
General Assembly regularly passed, I'M
constitutional and void. Our own books
have many decisions of this character and
in other States, the Courts have looked he
hind the authorization of an act, and in
vestigated the point whether il was, in fact
what prjmn tucie it appeared TO be, law
Then IL has been held repeatedly. that the
e 10 4
are presumptive evidence of the passage
of the law, but the journals may
be examined, and the original engro44,
ment of the bill looked to, to ascertain
whether the constitutional requirements
have been complied with.-People VS..
Purdy, . Hill, NY. 81; DeBow We. People l
DEMO, 9 Turley Va. City of Logan, Il H.,
l5l Prescott vs.. Ill. Canal, 10 Ill.,, 324
Spangler VS. Jacoby, IA Ill.,, 297 Rex VS..
Jefries, SITS. 44G, Scam 462 4 Mo, 1903;
: Md, 6Sl; Supervisors VS.. Heenan,
Mimi, $50 ,Hethengton VS.. Russell, 10
Iowa, l45 Iowa 80 and 1914 10 Ga, 65;
10 Iowa, I02 % Penn, $40 Fowler VS..
Pierce, Cal, los eleven States Dew vs.
Cunningham, % Ala, ACC.
These decisions and many others, 90 to
this extent, that although the enactment OF
laws is the province of the Legislature, yet
! IL is for the courts to determine whether
! the Legislature has, in fact, constitution
ally enacted them. The current and re-
speciality of these decisions are over
whelming, when put against the otf-hand
| opinion of lawyers-are solemn decisions
upon grave questions of law, and apply
not only 10 one House of the General As
sembly, but the entire Legislature. The
case before the court, relates to less still
! the action Of less than a quorum, which
action involved serious consequences 70 two
citizens; involve the question oftheir liberty
Now, it is true, as a general proposition,
thai where authority is conferred upon
several or many persons to be exercised,
all the persons authorized and empowered
to act must be present in order to a valid
exercise of the power. If less than the
number required be present, il is no legal
and valid act, it binds nobody, although the
formaities and ceremonies required may
have been gone through with. Now
if this principle, so universal in the
law, was strictly applied To legisla-
tive proceedings, and each member
was required to be present aud par
ticipate in order 10 the doing Of any valid
act, it would be extremely inconvenient III
general, and, assthe greater number Of our
legislative assemblies are bodies Of consid
cradle size, and composed Of many mem
bers these proceedings would be wholly
impracticable. Hence it has been found
necessary, in the constitution of legislative
assemblies, 10 make them an exception e
the general principle above stated, and t
allow smaller number than the whole O
each House to transact business and 10 dC
valid acts but it will be apparent TO tn,
court that this exception is made indispen
sihlp from the necessity Of the case, bu
does hot change the theory, or thereb'
exempt member for nUn-attendanCe.
Ii was necessary therefore, a. all coul,
not possibly be in attendance or participlt,
in each act or proceeding, that a specific,
number OF members should meet and b.
present, and this specified number shout,
6 | have all the power and authority to do an,
and all the acts that the whole might lie
: rally DO Less than this specified numbe
/ could do none Of them, otherwise it wer
useless to specify any number.
, This specified number is called 4 QUO
rum, and il regulated by constitutional pro
vision: and in the different States thi
, particular number is left to different regu
iaiicns. In Tennessee this numbe
T Is ascertained by section II c
the ID article Of the constitu
. nnn. which declares that "twO-third
Of each House shall constitute a quorum
~ 4 81 atr,.sa