The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1871-08-21

be passed by either branch without an
Affirmative vote Of u majority OF the mem-
hers elected thereto" Counsel Tor theap-
pellees contend thai members elected"
means peTsqm elected as members at the
last preceding election, whether members
al the tune the vote is taken Or MOI, while
the counsel Tor the appellants contend
that members elected means members
who would be entitled tovoir nj the time
the vote was taken uu the passage ul the
bill il present
Il appears that when the vote was taken
On the passage Of the bill, the President
OF the Senate ruled that eleven yeas were
sufficient 70 pass it, An appeal was taken
from this decision Of the Chair 10 the
Senate and the Chair sustained
The true theory Of representative gov.
eminent is, that majority Of the repre-
sentatives Of all the people to be bound
by any law, should assent 70 ii; and it
cannot be doubted that the people, when
they put this provision in the Constitu-
ton, intended to secure themselves against
the passage of any law to which a ma
jority Of all the people should not con
sent, The representatives of the people
should be governed by the spirit OF The
Constitution, and, in doubtful cases, should
decline the exercise Of power. For these
reasons, with all respent, It was the duty
Of the Senate 10 have declared the bill
moi passed. But the Senate having de-
Olaretl the bill passed, this court is called
upon to decide whether or not It can
stand rs II valid law.
While the Legislature is governed by
the spirit OF the Constitution. the courts
cannot declare an act Of the Legislature
invalid unless its invalidity is placed, in
their judgment, beyond reasonable doubt.
A reasonable doubt must he solved in
favor OF the legislative action, and the
act be sustained The courts must he
guided by the express words Of the Con
stitution, and not by its supposed spirit.
Whenever an act OF the Legislature
can be so construed and applied
as TO avoid conflict with the Constitution,
and give il fOrCe of law, such construction
will be adopted by the Courts. Cooley's
Constitutional Limitations lS9.-3-.4-.5;
Cooper ~. Telhir, Dallas p. Is; Welding.
ton, petitioner, rs Pickering p. Of; The
People Is. Fisher, "a Wendell p. 99O; Scars
Is. Cottrell' . Mich, Rep, p. 95l; Tyler vs.
The People, Sibid p. $50; City Of Balti-
more o. The State, 10 Maryland Rep, p.
$40.
In the light of these well established
rules, what is the meaning which should
be given TO the words members elected" ?
If they can be held 10 be persons who are
members at the time the vote is taken,
then the bill was passed by q sufficient
number OF votes. The words appear to
me 10 mean that person must be q "mGm.
Der" as well as Selected" and II a Senator
resigns his seat and his resignation Is nc.
copied, Is he still n member" 1t is Ger.
tainly not clear beyond n reasonable
doubt that the words members elected"
can Only-rGler to persons elected at the
last preceding elections, although they
may have ceased to be members ut the
time the vote is taken on the passage of a
bill, and n reasonable doubt as TO this Is
sufficient to sustain the validity Of the net
In question.
And again, according to another rule of
construction stated, TINT whenever an act
of the Legislature can be so construed MS
To avoid conflict with the Constitution,
and give 1t force Of law, such construction
will be adopted by the Courts, the CON
struCtiOn that members elected" refers to
those who were members at the time the
vote was taken should he adopted To sus.
tain tho validity Of the act. Upon the
whole no good cause appears to require
the Court to declare that the act is uncon.
stitutiOnal and invalid.
The decree or order complained Of will
therefore have TO be reversed, the iniunc.
ton dissolved, and the bill and amended
bill dismissed.
NOTE.-MoOre, j., COncurrcd in the
conclusion and reserved right to furnish
notes to reporter.
Berkshire, r, disscnted and reserved
right to furnish notes to reporters.