The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1880-01-17


the same right to consider and determin
whether in the first instances such pc
sons appear TO have been elected, al
finally whether they were in fact electe
as they have OF any and all person
who appear for the purpose OF composin
their respective bodies. Under the iact
recited in the statement submitted to III
we are OF the opinion that Lewis Vate
and associates oil the first named in ques
tion third, were not entitled to act, an
that Cyrus A. Thomas and associate
named in question third were entitled I
act in the House as members, and tha
Daniel W. True and those first named Il
question fourth were not entitled to act
and Andrew Howes and others with hin
named were entitled TO act as members o
the Senate. In neither case did the Sen
ate or House itself act on the ques
ton OF their membership. Boil
the Senate and House (meanini
the bodies assembled TO be organized n
such), were debarred from any actor
thereon by the conduct OF the presiding
secretary and clerk. The assumption o
such officers that no question can be en-
tertained relative to the rights OF person'
whose names are not on the rolls furnish
ed by the Secretary OF State, but who were
claimants OF seats, was unwarrantable
the statutepf 1869, embodied in the Re
vised Statutes, O. II. 2, section 25, cannot
preclude either the Senate or House from
amending and completing the rolls Of
membership according to the facts. Each
house has a constitutional right to or.
ganize itself. The form provided
for aid and convenience in effect
ing the organization does not confer
on the temporarily presiding officer such
power. We have not failed TO
consider the act OF 1860 70. 67,
into r. S. @. 2, O. II. 25), aud
30 far as it declares that "no person shall
be allowed TO vote or take part In the
OF either branch OF the Leg
islature as member unless his name
appears on the certified roll OF that branch
OIL the Legislature In which he claims to
act" We think It clearly repugnant to the
which declares that each
house shall be the Judge OF the election
and qualification OF its own members.
1t aims TO control the action Of
each house within its Constitutional
powers till after full organization with
the majority Is determined and fixed by
he Governor and council. lBy their action
n granting certificates to men not appear
ng to be elected, or refusing to grant GER
iticates to men clearly elected, they may
constitute each house with a majority to
Iuit their own purpose, thus strangling
md over-throwing the popular will, as
expressed by the ballot doctrine.
That the act gives to the executive depart
nent the power to rob the people OF the
legislature they have chosen, and force
ipon them one to serve its own
purposes, poisons the very fountains
II legislation; tends TO corrupt the legis-
alive department OF the government; 1t
itrikes death blow at the heart OF the
popular government, and renders its foun-
iation aud great bulwark, the will of the
people as expressed by the ballot, farce.
Zach house has the same power, and is
charged with the same duty to declare the
election OF its own members, and organize
n any legitimate way as before the pass
lge ofthat act.
Question 5: Answer-In the answers OF
January 8, 1880, this court held that in
:ases like those stated in this question,
hat tits the duty OF the Governor and
Council to hear the evidence and deter
nine whether the record or return is cor
ect, and il they determined the record to
% correct to receive 1t, or a duly certified
,opy OF IL, to correct the return, as is pro-
'ided in chapter 2l2, Of the acts
II. 1877. But in such cases they
IRE required to determine on the
ssue OF the fact whether the record
'r return Is correct, and so far as their
lction is concerned in determining that
act we think their determination Is con.
,lusive, subject, OF course, to be reversed
)y the House. II, however, they should
'efuse 10 hear evidence and determine
he question, and should by reason OF such
.efusal issue summons 10 candidates not
elected, the case would fall under the rule
.bove stated.
Question 6: Answer.-If objection was
made TO the admissibility OF illegally sum-
noned persons as set forth in the state.
nent presented US, the House took no &C.
ion thereon, then an organization OF the
House Or Senate, in the manner described
n this question, would be illegal and void.
The Court expressed the opinion on q
ormer occasion, that the Senate could or
,anize with less than n quorum OF mem.
,ers (S5 Maine 5G3), where less than a
quorum were elected,-a condition OF
hings that might happen when 1t requir-
ID majority OF votes 10 elect Senators
hat the decision met the necessities OF
hat occasion, but the doctrine OF that
'ase cannot apply, when quorum Is in
act elected.
Question Z: Answer.-Without legal
formed and legal officers
chosen by seventy.six members present
md voting in the House Of Representa-.
ives, and by 10 members present and
'oting in the Senate on given measure,
10 officers can be chosen, nor law passed,
Tor business done except to adjourn.
Question s: Answef-No less than 70
can constitute quorum OF the
House Of Representatives. nor can less
han 10 members, now that plurality
,lects, constitute q quorum OF the Senate;
lor can either house, without legal or
,anization formed and without legal Off
,ers chosen, compel the attendance OF
lbsent members. 1t is the House or SEN
.te, when formed and organized, that has
power TO compel such attendance, and 1t
5 not within the power Of persons who
ire merely members elect to do so. The
may, under the Constitution,
be compelled by such penalties as each
house may provide until legal organiza-
ion has been effected. There Is
no house to provide penalties for
such purpose, until the legal organization
IS completed. There is no ofiicerin either
house 10 issue q warrant against absent
members. No such power was committed
Or intended 10 be committed into the
hands OF persons not comprising and act
ing as an orgranized and completed House.
II has frequently happened. In our history,
that the Legislative bodies have been de-
Iayed for days, and sometimes weeks,
without being able to complete an organ
ization for want OF quorum.
Question 0: Answer-Not II the atten-
lion OF the House is called TO the fact.
Such persons are illegally summoned, and
objection Is reasonably made 10 counting
Of such persons for the making up Of .
quorum, and the House does not act on