The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1871-08-21

on the journal, ana th2t no Dill snali pe
passed by either branch without an Of:
firmatiye vote of majority Of the mem.
befsi elected thereto, this Court should
look beyond the authorization Of the act
to the journal Of the Senate to see if the
bill was passed by the required number
Of votes. -. Y, -, q. - ~
It was insisted In the argument Of the
case that such a conclusion as this
would be inconsistent with the case OF
Lusher vs., Scites, decided by this court
at a former term, and reported in 4 W.
Va. R., p, II. That case was in no re-
spect like the present one. In the case
OF Lusher vs.. Settles, the passage OF the
acts by both branches of the Legisla-
ture, by the required number Of votes,
was not questioned, and the only ques-
ton was as to the effect of the acts IN
question when passed. 1t was held in
that case that when an act is passed by
both branches OF the Legislature by the
number OF votes required by the con.
stitution, the courts cannot 60 behind
the passage of the act for any purpose,
whatever, and that decision rests upon
abundant authority, we'll known to
every lawyer of Intelligence. The
fourth and last point made by the
counsel for the appellants is that only q
majority of the members remaining
after the resignation of one member 10
required to pass bill.
The Senate when full consists OF
twenty-five members, and it is conced'
ed that at the commencement Of the
session of the Legislature at which the
bill in question was passed, this branch
was full.
The pleadings in the cause are In
definite and uncertain, but it sufficient
ly appears from the pleadings and the
admissions OF the parties that at the
time the vote was taken, the journal
will show that one member Of the Sen
ate had resigned his seat and that only
eleven Senators voted yea or the pass
age Of the bill.
The point of difference between coun-
sci is the construction to be given to the
provision of the Constitution: "No bill
shall be passed by either branch with.
out an affirmative vote Of majority OF
the members elected thereto" Counsel
for appellees contend that members
elected" means persons elected as
members at the last preceding elections,
whether members at the time the vote 10
taken or not, while the counsel for ap-
pellants conaend that members elect
ed" means who would be entitled to
vote at the time the vote is taken on the
passage of the bill, if present.
1t seems that when the vote was
taken on the passage of the bill, the
President OF the Senate ruled that
eleven yeas were sufficient to pass it.
An appeal was taken from this decision
Of the chair to the Senate, and the
chair sustained
The true theory Representative gov
eminent is that a majority Of the rep
resentatives Of all the people to be
bound by any law, should assent to it,
and it cannot be but doubted that the
people when they put this provision
in the Constitution intended to secure
themselves against the passage OF any
law to which a majority of all the peo-
pie should not consent. The represen-
tatives OF the people should be govern
ed by the spirit Of the Constitution, and
in doubtful cases should decline the ex-
ercise of power. For these reasons,
with all respect, it was the duty OF the
Senate to have declared the bill not
passed.
But the Senate having declared the
bill passed, this Court is called upon to
decide whether or not it can stand as a
valid law.
While the Legislature is governed by
the spirit of the Constitution the courts
cannot declare an act Of the Leg
islature invalid, unless its invaldity
is placed in their judgment be.
yond reasonable doubt. A reason
able doubt must be solved in favor
of the legislative action and the act be
sustained. The courts must be guided
by the express words Of the Constitu-
ton, and not by its supposed spirit.
Whenever an act of the Legislature can
be so construed and applied as 10 avoid
conflict with the Constitution and give
it force Of law, such construction will
be adopted by the courts.
Cooleys Const Lin, p. lS2-3-4-5 ;
Cooper vs. Telfair, t Dallas, IS; We'll
lington, Petitioner l6, Pickering 95;
The People vs.. Fisher "a, Wendell
DO; Sears VS.. Cottrell, 5, Michigan
Rep, ISL Tyler va. The People, s,
Ibid 800 City of Baltimore vs.. The
State, Is Maryland Rep, 376.
1t the light of these well established
rules, what is the meaning which
should be given by the Courts to the
words members elected?' If they can
be held to mean persons who are mem
bers at the time the vote is taken, then
the bill was passed by sufficient num-
Der OF votes.
The words appear to mean that a
person must be member" as well as
elected" and il a Senator resigns his
seat and his resignation is accepted is
he still member
1t is certainly not clear beyond rea-
sonable doubt, that the words mem
bers elected can only refer to persons
elected at the last preceding elections,
although they may Rave ceased to be
members at the time the vote is taken
on the passage OF bill, and reasona-
BILE doubt as to this is sufficient to sus-
tain the validity of the act in question.
And again, according TO an other
rule OF construction stated that when
ever an act OF the Legislature can be so
construed as to avoid conflict with the
Constitution and give it force of law,
such Construction will be adopted
by the courts, the construction that
"members elected" refers to those who
were members at the time the vote was
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