The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1875-06-09


and Council, whether it be regarded as within
or exceeding their constitutional powers,
Messrs. Priest and Proctor received the usual
credentials which authorized them to assemble
with the other ten Senators and take the pre-
scrbed oaths of Office and thereupon become
Senators subject to the constitutional authority
of the Senate as final judges OF the qualihca-
ton and election of its members
1t further appears that the Senate has pro-
ceeded to examine the returns of votes for Sem
ators and has adjudged that Messrs. Priest and
Proctor, having received a majority of the votes
legally cast and returned within respective dis
tricts were elected Senators thereof. By article
35th Of the constitution, the Senate are made
final Judges of the election returns and qualiti-
cations of their own members, as pointed out
in the constitution We are of opinion that
from the action of the Senate in this respect
there can be no appeal. By the express terms
of the constitution the action OF the Senate is
made final If the trainers Of our organic law
had intended that some court or other tribunal
should have the power by writ of quo oCdrrdnto
or manddnaus or other process to revise the &C
tiop of the Senate, they would have expressed
themselves in language which could not be
misunderstood. We are therefore of the opin-
ion that when the Senate adjudged that Messrs
Priest and Proctor were duly elected Senators,
their action was final and conclusive of the
right of said Priest and Proctor to hold their
seats as Senators.
The foregoing opinion is based entirely upon
the facts stated in the preamble to the resolu-
tion and upon the assumption that when the
Senate undertook to act as final judges of the
qualifications and election of Messrs. Priest
and Proctor there was a constitutional quorum
present.
(Signed) u. ). GUSHING.
w. S. LADD,
ISAAC w. SMITH,
Justices of the Superior Court of Judcature.
1t was voted that the above communication
be placed on file aud spread on the records No
further business being before the Senate, they
adjourned at II o'clock to 8 p. m.
The House met at 10 o'clock, the Speaker in
the chair. The Speaker proceeded to read the
following communication from the Justices OF
the Superior Court:
To the House of Representatives
The undersigned Justices of the Supreme
Court have considered the questions addressed
to them by the House of Representatives by
the resolution passed June Sd, 1875, whether
upon the ficts stated IN the preamble to SAID
resolution the Governor had constitutional
authority to issue summons to appear as
Senators to either of the persons mentioned as
having received votes for that office. In oena-
torial districts No, 2 and No. some doubt were
at first entertained as to the precise question
upon which the opinion of the Justices was
desired. The facts laid before US, however, are
simply statements of the vote in the two dis
tricts named as above by the returned copies OF
the records on file in the Office of the Secretary
of State, and our opinion is desired whether the
Governor had the constitutional authority to
issue a summons to either OF the persons
named. We have, therefore, concluded upon
consideration that the House desire the Jus.
tees to say whether upon any possible state OF
facts the Governor and Council, in dscharging
the duties laid upon them by articles 80 and 81
of the constitution, could lawfully consider any
other matter or thing except what appears
upon the face Of the copies of the records re-,
turned to the Secretary of State by the several
town clerks, in accordance with article 81 of
the constitution 1t is now a matter of history
that summons were in fact issued by the Gov
ernOr and Council to James Priest and John
Proctor in the second and fourth districts, re-
spectively, and that these gentlemen appeared
and were sworn as Senators, and we think 1T
duty which the Justices on an occasion like
this cannot avoid, to take Judicial notices OF
these historical facts. The resolution of the
House therefore calls for an expression of
opinion by the Justices as to the correctness or
incorrectness of the construction put BY the
Governor and Council upon that article of the
constitution. which prescrbes their duty in the
premises and the legality or ilegality Of an act
done by them in pursuance OF that construc-
ton. There is no principle more fundamental,
more thoroughly interviewer with the whole
fabric of our Republican institution and form
of government, and probably none more
familiar to the great mass of intelligent citizens
of the state than that the three branches OF
the government, the legislative, the executive
and the judicial, are coordinate and independ-
ent Neither can interfere with the duties of
function of either of the others without strik-
ing blow at the foundation, upon which rests
ali security, as well for private rights as the
public welfare. The vital character of this
provision is recognized as its observance is
en- forced in cogent terms by the 37th article of
our bill OF rights, as follows:
In one government of this state the three
essential powers thereof to wit, the legislative,
executive and judicial, ought to be kept as sep
from nd indpnan6npt Of each other
the nature of a free government Will admit, or
as is consistent with the chain of connection
that binds the whole fabric of our constitution
in one indssoluble bond of union and amity.
1t does not admit of doubt that 1t was lncum-
bent on the Governor and Council in the first
instance to give construction to articles 80 and
IS of the constitution, which prescribe their
duty with respect to determining who were
elected senators and converting the Senate. In
deed, there was an inseparabls and necessary
incident of the injunction lying upon them the
duty to act. They could not obey that iDjunc-
ton and act at all without first determining the
question in which mode they were bound to act
by the constitution. Judge Cooley, very high
authority on questions of constitutional law.
says, .'We have to day seen that we are to ex-
meet every constitution an oppositionment Of
the powers of government. We shall also lind
certain duties impressed upon the several de-
partments as we'll as upon spec officers in
each, and we shall likewise discover that the
CONSTITUTION HAS SOuSub " hcuSO dUouO thCIl
actions in various ways with view to the pro-
lection oe individual rights and the proper sep
araton of duties, and whenever any one is call
ed upon to perform any constitutional duty, or
to do any act in respect to which it can be sup
ported, that the constitution has spoken. 1t is
obvious that question of constitution may at
once arise upon which some one must decide
before the duty is performed or the act done.
From the very nature of the case this division
must commonly be made by the person, body
or department upon whom the duty is cevolved
or from whom the duty is required He then
supposed several cases for illustration, and con-
cludes:
sUnder every constitution cases of this de-
scription are to be met with, and though 1t will
sometimes be found difficult to classify them,
there can be no doubt when the case is proper
ly determined to be one of this character, that
the rule must prevail which makes the dacis-
ion final" Cooley's constitutional limitations
80, Al. Further observations of the same learn
ed writer in the pages following those quoted
from also throw light upon the subject of our
present enquiry. We cannot hesitate to declare
our opinion that when the Governor and Coun-
Gil acted in the premises that solemn act of the
Executive Department of the government ne
cessarily involved a construction by them of the
clause in the constitution prescribing their du.
ties, and that such action cannot be regarded
as the subject of revision by either OF the other
departments of the government except in the
mode distinctly provided in the constitution,
by t06 SeDdCe, WHO, ny drJlClo %, are
made the final judges of the election returns
and qualifications of their own members. The
Governor and Council must act in the matter
the same as the Legislature or the Court act in
matters coming within the range Of their seve-
raj prescribed constitutional duties upon their
own responsibility Under the somewhat excep- |
tional provision found in our constitution, the
and Council may upon important |
questions of law and on solemn occasions re-
duire the opinion of the Justices of the Supe- |
rior Court; it makes no difference as to the APP
plication of these principles.
1t is obviously for them first to de- |
termne an exigency making it expeient to |
require such opinion has arisen and for the |
judicial or legislative branch of the government
to offer the opinion of the court unasked would |
obviously be an interference with the duties of |
the executive entirely unwarranted by the con- |
stitution. In the view we take of the question |
it calls for our opinion upon a past and COM |
plete act of the executive department of the |
performed in the discharge of |
duty expressly required of that department by |
the constitution, and in any aspect which the |
subjects presents to our minds, such opinion |
if given could have no great weight or author |
ity other than criticism of approval or dis |
approval by one branch of the government up |
on the conduct of another co -ordinanate branch.
We have been unable, after the most careful |