Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-05-08

business but smaller number mag adjourn
from day TO day, and may be authorized bg lat0.
70 compel the attendance of absent members
Now, 1t is insisted by the counsel for the reti-
toner that there was ne quorum in the House
when the resolution was passed, and that there
is 10 law passed either for the government OF
the House or otherwise. authorizing less num-
Der than quorum to enforce such attendance
| and hence the resolution is without authority of
law. and void. Or the other hand il Is insisted
! that. by the common law, by parliamentary
usage, and the necessity OF the case IL may be
| done. and that the Legislature, or any humber
| of its members elect, can do anything in the
! ordinary bounds of legislation, which is not ax-
| pressly prohibited by the contribution. II seems
| very clear, that IN this country the power ofthe
Legislature to make laws is derived alone from
! the constitution, either expressly granted or
| reasonablyto be inferred that individual men,
bers can do no legislative act, merely from their
election no more THAI man could act from an
appointment or election without commission;
| 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, theremust be pres
ent at least two thirds of the whole number
| Now, II the construction contended for, was ad-
| missible. that any number of members duly as
/ sembled, eau do any business not expressly for
| bidden, this provision Of the constitution would
be wholly nugatory. The consiitution permits a
| quorum to do business but il surely does not
| by express terms or reasonable e0nst structiOn
| permit less mum ber, TO do more than TO ad
! Jonrn from day TO day. and to enforce any law in
| existence made to compel the attendance Of alb
| sent members. Then, is there any law or rule of
| the ouse. adopted by quorum, authorizing a
less number Of members than quorum to en-
| force the attendance of members There has
| been none referred 20 the court nor has il been
| able t. find any. Is such law or power Inherent
in such a number, or may ii be inferred from the
necessity or nature Of the case? The court is
unable to see tiff it is can be inferred Ii is
readily conceded that it is the duty. and a high
and solemn duty; of every member Of the Legis-
| lature. when duly called by the Executve or
otherwise and to take part in its proceedings no
| matter what may be before it, or how much he
| may be opposed TO the action of the majority;
but II his sense OF duty and moral obligation, do
not force his attendance, and the Legislature has
| provided no law by which less number than a |
quorum Of the members can enforce
great must be borne till a remedy is |
legally provided. and his arrest without |
authority OF law, must be deemed Illegal And |
II cannot be perceived how the declaring by |
court that the acts of one or any number of |
members of the Legislature. less than that au- |
thOrized by the constitution and laws of the |
State TO act in the capacity of Legislature to
he illegal. could be construed TO be interfering |
with the privileges of the Legislature or con- |
hieting with the legislative department of the |
government, simply because the court under |
tas o. TO decide upon questions arising between /
some of its members. Surely il woald never be |
contended. that if one or many of the members /
of the Legislature should, seize and i'm /
prison another member, that court /
could not interfere for his relief, simply /
because they were all members of the same Lee /
gislature. Members of the Legislature are, in L
their individual capacity. 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 70 and from the L
place of assembly. But It's said that there is
no sufficient evidence before the court showing |
that the resolutions set up in the return a de-
fense. were passed by less number than two |
thirds of the whole Legislature, and that in the |
present state of the pleadings in this case. il
should be taken that they were passed by quo |
rum. The petitioner alleges. as one ground of
the illsgality of his restraint. that he was ar
rested under an order or resolution passed by /
number of the members of the Legislature less !
than quorum. The return of the defendant |
does not deny this allegation or is the fact that
the resolution was passed by quorum affirmed L
in the return. except inferentialy; and it was
not denied in point of fact, in the argument Il
The fact that no quorum had been obtained was
daily published In the legislative organ, and il Il
may we'll be inferred from the resolution itself.
il directs process against various absent mem
ber5, indicating that the desire for their attend.
ance was TO secure quorum. II is true that the /
resolution charges the absent members with dis i
orderly condur' ar 4 Pant shet thee are indsti-
nlte eXpressicn Rn- might be applted 10 an 9b-
xtinats refusal GO sFrear. Bat there seens TO be
distinction drawn by the constitution between
disorderiy conduct in the Assembly and q mere
refusal to attend. In the former they had to be Il
presented by the House; in the latter, their at
tendance is enforced by laws passed for that ex-
press purpose. In view of all these facts and i
circumstances, it would be a very technical ad- 4
herence to the rules ofpleading and evidence to
hold that these resolutions were passed by
quorum. !!1- ,.,. .o
ious reflection, and surely unbiased and unin- Il
huenced by any external circumstances or re-
suits, but alone influenced by solemn cOnvic-
tion Of public duty, the court is constrained to
decide that the return shows no legal ground for
the restraint of the petitioner. and affords no
legal justification 10 the defendant, for the ar
rest; and 0s the defendant has failed to produce
the prisoner before the court, as required by the
writ, an attachment must issue against him for i
contempt"
And having reached the conclusion announced
in said opinion, he therefore issued said writ of
attachment, upon the renewed motion Of she
counsel, for petitioner and precept for the body
Of said Williams, who has been held up to this
time, TO the Sheriff, as follows;
STATE OF TEyKEssEE-TO the Sheriff David
son county: Whereas, A writ of hGbeas corpus
was issued by me- Thomas N. Frazier, Judge Of !
the Criminal Court, etc, on the 18th day Of july /
1866, commanding William Heydt to bring be- 1
fore me the body of one Pleasant Williams who, l
it was alleged, was illegally constrained Of his l
liberty by said Heydt; and whereas, said Heydt
made return without bringing the body Of said /
Williams, and which return shows that said l
Williems is held under and by aresolutiOn ofthe 1
House of Representatives Of the State of Ten
nessee; but it being expressly charged in the /
petition, that this resolution was passed By less
than quorum, and not being denied by the re- 1
turn, and the undersigned Judge being satisfied /
from the whole case, that said Williams is held /
under resolution OF persons who are members |
of the Legislature but that there was no quorum, |
the object being to procure quorum. and the |
undersigned Judge being of opinion that less |
than quorum could not arrest another member. |
and therefore, that said return is insufficient and
that said Heydt is in contempti and the peti |
toner by his counsel, having moved for writ
of attachment to attach the body Ofsaid Heydt
These are, therefore, to command YOU the 1
Sheriff of Davidson county, to attach the body |
of VIM. Heydt and bring him before me to |
also bring up the body efsaid Pleasant Williams, |
to the enathat be be discharged and no longer l
restrained of his liberty, and that you execute
this writ and make return thereof, instanter, be 1
fore me, at the courthouse in Nashville.
Given under my hand and seal, this 18th day
of July, 1866. IHos. N. Frazier.
Judge of the Criminal Court"
And the same was returned as follows: Il
FIRST RETURS.-"Came to hand the same day 1
issued. and executed in part BY taking the body |
Of Capt, z; Williams, and bringing him before |
the Hon. Thos. n. Frazier by command. Heydt |
has not yet been nj lpqPd g l., ~ D.nntv sh.r,e.
SECOND RETURN.-"Since last evening l have /
executed the within writ of attachment. by /
taking the body OF William Heydt, and have him
here now before your Honor, 10 be disposed of as |
the law directs, This July 10Th, 1855,
Nv. G. SHAW. Deputy Sheriff"
And thereupon, respondent, as Judge aiore-
said, delivered the following as his opinion
JUDGMENT or THE COURT.
The State of Tennessee on the relation of
Pleasant Williams ~. William Heydt and |
Thomas Frame.
Petition for Wra Of HaJeas C5rDns
Upon the petition in this cause, a writ was
issued to the Sheriff Of DaviFson county, re-
Heydt and Frame that they were required TO |
bring the body of the petitioner, before me- at the
courthouse in Nashville, on the llth Of July, /
1866; which was returned. executed on the de- /
tendant Heydt, Frame not TO be found. On the |
18th Of July. 1866. the defendant Heydt. BY his
attorney, without producing the petitioner be-
fore the court. presented his return; and the /
necessity for the production of the petitioner /
being for the present waived, the legal !
questions involved in the return were ar
gued at great length by counsel on both /
sides; the court delivered its opinion in
writing, upon the sufieiency Of the return
which is referred TO. and made a part Of /
this Judgment and for the reasons therein as l
signed, the court held the return was insufficient |
60 Justify the arrest and detention Of the peti. |
TONER and ordered an attachment against the |
defendant Heydt. which was returned executed
Ia part, by producing the body Of the petitioner |
before the court, on the 18th Of July, 1850; and |
therefore. the said Pleasant Williams was re- /
leased and discharged from custody by the court !
and sad attachment being returned again on the 1
1lth Of July. 1866, executed in full by sTesting,
snd bringing the body Of the defendant, Heydt, ]
before the court; and the court being satisfied 1
from the return and the whole care, that the !
defendant Heydt, h&d intended no contempt of
the authority Of the court thst the arrest Of
the petitioner. and subsequent detention, was |
done BY him, under what be supposed was legal
authority it was therefore ordered and eonsid- |
cred, that the said defendant, Hsydts be dis |
charged and released from the attachment; and
that he pay the costs OF this application, which |
costs we're paid over by him In the presence OF |
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