Essex County herald. [volume] (Guildhall, Vt.) 1873-1964, 1875-06-19
The N. n. Legislature.


Oar space VIII permit Us to publish only |
the names of Coos members and thecom-
niittees upon which they have been as
signed positions.
National AGairs-,Vheeler, Of Berlin.
Railruads-knights, OF GOrham.
Bauks-Bolles, OF jefferson.
state Prison-WoOds, of Randolph.
lnsurance-Eyaus, of Shelburc,( chairman).
Agriculture-Ttus Of Columbia.
FinanCe-Dimick, of Lancaster
Towns aud Parishps-Cummings, of CulebrOok.
Division of Towns-Danforth of Pittsburg.
lRsane Asylum-ROgers, of Jefferson.
Roads, Bridges, and Canals-Chesslnun, of
Northumberland.
Fisheries-Adloy, of Milan (chairman).
Retrenchment and RelOm-Bragg, of Enrol.
Reform School-Lbbey, Of Whitehead,
Normal School-Thompson, of Stark.
Bills on their Third Reading-Blanchard, of
Stewartstown.
Printers Accounts-Ilimball, of Stafford
Unfinished Business-Lane, of Nmefeld
(chairman).
Resolutions were offered inquirlng by
what right the two Representatives from
Harris Location and the Representative
from Mason hold seats in the House.
.. TUESDAY, June s.
HOUSE.
The Speaker read the resolutions passed
June 4th in regard to presenting the Sen
atorial questions to the Superior Court
and the opinion of the Judges in response
thereto. The following is
THE OPINION.
To THE HOUSE OF REPRESENTATIVES,: -
The undersigned, Justices of She Superior Court,
have considered the questions addressed to them
by the House of Representatives by resolution
passed June ), 1919, whether upon the facts stated
in the Preamble to said resolution the Governor
had constitutional authority to issue a summons
to appear as Senator to either OF the persons
mentioned as having received votes for that office
Senatorial Districts number two and number
four Some doubts 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 a statement of the vote
in the two districts named, as above, "by the re-
turned copies of the records, on file ia the Office
of the Secretary of State" and our opinion is de
| sired whether the Governor had constitutional
| authority to issue summons to either of the per-
! sons named. Wehave, therefore, concluded upon
consideration, that the House desires the Justices
! to say whether, upon any possible state Of tht
| ia cts, the Governor and Council, in dischargng
the duty laid upon them by Articles 33 and 81 o.
the Constitution, could lawfully consider any
other matter or thing except what appears upOT
the face of the copies of the record returned tc
the Secretary of State by the several town clerks
in accordance with Article 80 of the Constitution
It's now a matter of history that summonse'
We're, in fact issued by the Governor to james
| Priest in the Second District, and John Proctor
in the Fourth District and that these gentleman
| appeared and We're sworn in as Senator's; and We
think it duty which the Justices, on an occasion
like this cannot avoid, to take judicial notice o
these historical facts. The resolution of th'
house, therefore, calls for an expression of Opin
ion Of the Justices to the correctness or incor
rectness of the construction put by the Goveuo
and CouAcil upon that article of the Constitution
which prescrbes their duty in the premises, ant
the legality or illegally of an act done by Them il
pursuance of that construction.
| There is no principle more fundamental, NOR
thoroughly interviewer with the whole fabrics o
our Republican institutions and form of govern
ment, and probably more familiar with the grea
mass of intelligent citizens of the State than tina
the three branches of government, the Legisla
tive the Executive, and the Judicial are CO-oI
dinate and independent. Neither can interior
with the duties or functions of either of the other
without striking q blow at the foundation upo
which rests all security as well for private right
as the public welfare.
The vital character of this provision is recoe
nized and its observance enforced il c0geI
, terms by the 37th article of our bill of rights n
, follows; ain the government of this State th
three essential powers thereof, to wit, the egislt
tive, executive, and judicial ought to be kept a
separate from and independent of each other a
the nature free government will admit or as
! consistent with that chain of connection thu
binds the whole fabric of the Constitution in on
, indisSOluble bond of union and amity."
1t does not admit of doubt that it was incun
bent on the Governor and Council, in the first il
stance, to give construction to Article SO and :
5 of the Constitution, which prescribe their dut
with respect to determining who were electe
/ Senator'S, and cOnyening the Senate Indee,
this was an inseparable and necessary incidel
4 of the injunction laying upon them the duty
act They could not obey that injunction and az
Y ut all without first determining the question
what mode they were bound to act by the Const
= tuition.
, Judge Cooley, a very high authority on que
I tions of constitutional law, says: eve have a
, ready seen that we are to expect in every cOnst
l tuition an appOrtonment of the powers of Cover
ment We shall also find certain duties impose
. upon the several departments, as well as upC
specified officers in each, and we shall likeWi
discover that the constitution has sought to hedl
: | about their action in various ways, with a vie
) to the protection of individual rights and Il
= proper separation Of duties.
And whenever anyone is called upon to pcrfor
any constitutional duty, or to do any act in /
spect to which it can be supposed that the co
stitution has spoken, it is obvious that questiC
. of construction may at once arise, upon whit
\ some one must decide before the duty is performt
- or the act done From the very nature Of i
e case, this division must commonly be made
- the person, body or department upon whom Il
= duty is devolved, or from whom the duty is
CURED" He then supposes several cases for
q lustration and concludes :-''Undcr every co
= stituton cases of this description are to be III
n with, and though it will sometimes be foul
difficult to classify them, there can be no dOul
v when the case is properly determined to be one
this character, that the rule must prevail viii
{ makes the decision final" Cooley's Constitute
nj Limitations, 80 Al. Further observations
2 the same learned writer, i'll pages following tho
quoted FROM also throw light upon the subject
L our present inquiry.
We cannot hesitate to declare our opinion til
l. when the Governor and Council acted in
, premises that solemn act of the Executive !
u paTtnent of tho Government necessarily invotv
a construction by them of the clause in the CO
9 stitution prescribing their duties, and that su
action cannot be regarded as the subject of
} vision by either of the other departments of [
:, government except in the mode distinctly p
q yidel in the Constitution, namely, by the Sena
who by Article 80, are made the final judges
K the elections, returns and qualifications Of tn
own members.
) The Governor and Council must act in 81
y matter the same as the legislature or the court
" IN matters coming within the range of their 81
. erill prescribed constitutional duties, upon tn
u, own official responsibility, under the sanction
~, their official oaths. The somewhat exception
y provision found in our constitution that the G.
:, ernor and Council may, upon important questiC
III of law, and upon solemn occasions, require
10 opinion of the Justices of the Superior Cou
~ makes no difference to the application of TIN
IT, principles. 1t is obviously for Them first TO
- termine whether an eXigency making it eXpedi
n to require such opinion has arisen And for
- judicial on Legislative branch o" the govenm
of to offer the opinion of the court Ilnasked wol
- obviously be an interference with the duties
the executive entirely unwarrantcd by the Con
tuition. '
In the view we take of this question, it calls
our opinion upon past and completed act of
RS executive department of the government z
~, formed in the discharge of duty expressly
~ CURED of that department by the CONSTITUTE
nv And in any aspect which the subject presents
our minds such opinion, il given could have
ne greater weight or authority, than Il criticism
20 approval or disapproval by one branch Of
w. government upon the conduct of another
OIL. 10. 1..tu. l.