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

Q tendance OF the Governor and Council tC
= the purpose OF administering an oath to ;
4 deemed OF any importance. 1.-THE Coy
d ernor and Council had appeared without
8 motion or vote their authority would hay
z been the same. We therefore answe
s that qualifying oaths under the Consti
!, tuition or statutes may be administed !
r members OF either branch in any mum
= Der, though quorum must appear and b
] qualified before proceeding to the election
B OF q speaker. II the whole number Q
D votes for speaker is less than q quorum
and there Is nothing upon the record I,
! show that o quorum was present AM
acting there would be an election.
! Question Is: Answer-The Governor,
I term OF office, and also that OF his council
: expired at midnight following the frs
: Wednesday in January, 1880. The tern
i OF the other officers mentioned in th,
; question will expire when their severa
, successors are elected as provided in tht
constitution.
!, Questions II, "a and 25: Answer.-Tht
answers to the l4th, 24th and 25th ques
tons proposed we answer as follows: II
the general provisions Of the constitution
article 0, certain oaths or atiirmations are
prescribed for persons elected, appointed
or commissioned TO offices therein men,
toned. 1t appears that those before
whom prescribed oaths were to be ad.
ministered refused To act, and that now
there are no existing Governor and
Council before whom they can be ad.
miuistered. The oath is prescribed,
the terms are tho essential, and It's
binding force depends on its terms, not
on the magistrate by whom 1t is admins
tered. II there Is no Governor and Coun.
Gil, or, being Governor and Council,
they refuse 10 administer the oath to one
Representative, or to all for there can be
refusal to all equally as to one, what is
the result? Is anarchy to triumph Can
the government be destroyed or its action
paralyzed because there Is no Governor
and Council before whom the prescribed
oath is to be taken? Wethink not. The
prescribed oath, from the necessity OF
the case, may be taken before magistrate
authorized to administer oaths. Members
must be sworn before they can act. It is
by their action that Governor and
Council thereafter is to be elected and the
government continued. Itcannot be PIE
sumed thatth trainers OF tho Constitu.
tiOn had in contemplation the oath had
better not he administered at all than ad.
mistered by any other officer than the one
designated therein? This is one OF the
most reliable tests by which TO distinguish
a directory from mandatory provision.
Estate VS.. Smith, 81 Maine, S2S
Question 10: Answer-0ur reply to Is
is, "the question is in the negative, that
one whose only title to the presidency
Of the Senate is by virtue OF such an cleo.
ton, and cannot become the acting Gov.
ernor, because he is not the legal presi-
dent OF the Senate. II of twenty voting at
such choice OF the president OF the
Senate, eight did not appear TO be elected
by the official returns under the constitu.
tion and the decision OF tho court, and
were not, in fact, elected, there was then
no legal quorum and could be no valid
election OF the permanent officer,
Notwithstanding the eight had been
summoned by the Governor and
Council without legal quorum, and
with those eight participating In the pro-
ceedings 10 the exclusion Of those right
fully elected in their places, there could be
no valid election. OF the President OF the
Senate. To proceed with the organiza-
ton OF the Senate without first determin-
ing and declaring its own membership,
when attention was properly called to the
fact that persons were present and acting
without right, and the members were ex.
cluded, the Secretary refusing to entertain
the motion for the correction OF the roll,
and refusing to allow an appeal from his
ruling, and the Senate taking no action,
although u protest was made, was illegal
and void.
Questions 10 and IA: Answer Under
the letter OF the Constitution 1t Is at least
doubtful whether the President OF the
Senate is required TO take new oath be-
fore exercising the office OF Governor
when that Office has become vacant in the
manner specified therein. The practice
since the organization OF the State has, we
believe, been uniform against requiring
such new oath, and 10 such practical in
depreciation OF the Constitution, in the
the absence OF express provision or mani
fest intention to the contrary, we think
effect should be given. To the sixteenth
question We reply that legally chosen
President OF the. Senate may become act
ing Governor without the administration.
OF any other qualifying oath than that
which was taken In the office OF Senator.
The answer to the sixteenth question
renders the reply TO the seventeenth un-
necessary.
Question IS; Answer-It appears from
the statement OF facts that the members
from the FIVE cities OF Portland, Lewiston,
Rockland, Bath and Saco, were duly elect
ed as well as by returns as before the Gov
ernor and Council; that by law a sum-
mons should OF right have been issued TO
them; that in fact no summons was issued
and that their names were not borne on
the roll or certified to by the House, as
!, gl'Is,sIoa section Is. 4 A motion nc " was "a,
seasonably made that these members
appearing by the returns before the House
10 have been duly elected, should be per-
mitted to participate in It's organization;
but the assistant clerk refused to put the
motion and to entertain an appeal. By
the Constitution the returns were before
the House. BY those returns the Repre-
sen,atives above named appeared 10 be
elected; their seats were not contested. The
Governor and Council could not, without
violation Of their constitutional duty
neglect to issue TO them asummon nor
the Secretary OF State to place their names
on the certified roll, which 1t was his duty
TO furnish, the Governor and Council
could not legally withhold their summons
from those appearing to be elected. They
could not order summons to be issued to
some appearingt 10 be elected and withhold
1t from others. II they could 1t would be
In their power 10 select from the members
appearing to be elected those who should
and those who should not take part "a
the organization OF the House. The
section 25, R., S. O. 9, restricts the
vote OF those whose names are
borne on the certified roll. The
restriction OF the vote TO those only whose
names are thus borne, Is at variance with
the Constitution, in so far as " restricts
and permits the action oil the House to
those whom the Governor and Council
may select, and not to those appearing to
be chosen, and TO those the House may
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