Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-01-17
THE COURTS DICTUN.

Jos. A. Locke, president OF the SENATE, anu
Hon. Geo. E. Weeks, speaker of the House oil
Representatives:
BANGOR, Me-. Jan. l6, 1Ss0.-The under
signed justices of the supreme court have the
honor to submit the following answers to the
interrogatories proposed and based upon the
accompanying statement OF facts.
Question Answer: An election has been
had by the electors of this State. The rights
of the several persons voted for depends on the
votes cast in accordance with the constitution
and laws of the State. It was the duty of
the Governor and council thus to de-
clare it. Any other declaration is
council examined the returns and undertook to
declare the result as appeared by the returns.
Various questions involving this construction
of the constitution and statutes relating there
to arose. and the Governor, by virtue of his
constitutional prerogative, called upon this
court for its opinion upon questions PROFOUND
ed by the provisions of the constitution. The
court was required to expound and
construe the provisions of the constitution and
statutes involved. 1t gave full answers TO those
questions. The opinion of the court was thus
obtained in one of the modes provided in the
constitution for an authoritative determination
of important questions Of law. The law thus
determined is a conclusive guide for the Gov
ernor and council in the performance of Their
determining the vote as it appears by the re-
turns in violation of the provisions of the con-
stitutien and law thus declared, is usurpation
of authority, and must be held void.
It only remains to apply these principles to
the subject embraced in the questions pro-
pounded. The government and council had
no right to summon q person to attend and
sentative. who by the returns before
them was not voted for, or being
voted fer was defeated, to summon enc for
whom no votes lad been cast, would be a de-
liberate violation of official duty. To summon
those who the returns show were not eiected,
would be equally such a violation. Either
will intrude without right into the Legislative
body. The summonses thus given would be
void as in excess of any powers conferred by
the contribution. Grant the power and the
right of the people to elect their officers is at
an end.
The second, third and fourth questions may
be answered together. The answer to the first
question covers much Of the ground embraced
by these questions. The holders of summons
which are void for the reason that the governor
and council failed to correctly perform the con-
stitutional obligation resting upon them have
no right to take part in the organization or in
any subsequent proceedings of the House to
which they are wrongfully csrtifcated. They
are not in fact members, bat the
members rightfully elected, as shown by the
official returns and the opinion of the court
upon the propositions heretofore by the COVER
nor presented to the court are entitled to ap-
pear and act in the organization of the Houaes,
to which they belong, unless tho House and
Senate, in judging of election and qualification
of members shall determine to the contrary.
A member without summons, who
appears to claim his seat is primo fdcie en-
titled to consideration with member who has
H. -. ,,k - IL. rad, ~ ha
position belonging to him on account of the
dereliction of those whose duty it was to have
given him the usual summons. The absence
of that evidence may be supplied by other evil
dence of membership. The House and Senate
have the same right TO consider and determine
whether in the first instance
such persona appear to have
elected, as they have of any and all persoas
who appeor for the purpose of composing their
respective bodies. Under these facts recited
in the statement submitted to US we are of
opinion that Lewis Voter and associates, first
named in the question, were not entitled to act
and that Cyrus A. Thomas and associates lastly
a t;es to ia a sas question: n the were Hoe.e
as members, and that Daniel W. True, and
those first named IN the question were not en-
titled to act, and that Andrew Howes, and
others with hira named, were entitled to act as
members of the Senate. In neither case did
the Senate or House itself act upon the ques-
ton of their membership. Both the Senate
and House, meaning the bodies assembled to
be organized as such, were debarred from any
action thereon by the conduct Of presidas-
ing secretary and clerk. The &C.
sumption of such officers that no
question should be entertained relative to the
rights of persons whose names are not upon
the rolls furnished by the secretary of state.
but who were claimants of seats, was unwar-
rantable. The statute of 1869 embodied in the
revised statutes, chapter 2, section %, cannot
preclude either the Senate or House from
amending and completing the rolls of member
ship according to the facts. Each house has
the constitutional right to organize itself. The
form provided for aid and convenience in eff
feeling organic alton. does not confer upon \
temporarily presiding officer such conclusive
power.
act, of 1869. chapter Sc, incorporated into re-
vised statues, vol. 2. CHI. D. and far as it de-
clares that mo pei son shall be allowed to vote
or take part in the organization of either
branch of the legislature as member unless
his name appears upon the certified roll
of that branch of the Legislature in which he
claims to act,' We think it clearly
declares that each body shall be
the Judge of the election and qualification of
its own members. 1t aims to control the
action of each within its constitutional powers
till after full organization. With the majority
determined and fixed by the governor and
council by their action in granting certificates
to men not appearing to be elected, OF refes-
ing to grant certificates to men
clearly elected, they may constitute
each House with q majority to suit their own
purposes. thus stranging and overthrowing
the popular will as honestly expressed by the
ballot. The doctrine of that act gives to the
executive department the power to rob the peo-
pie of a legislature they have chosen and
force upon them one to serve its own pur-
poses. It poisors the very fountains
of legislation and tends to corrupt
the legislative department of the government.
1t strikes death blow at the heart of popular
government and readers its foundation and
great bulewark, the will of the people as ex-
pressed By the ballot, a farce. Each House
has the same power and is charged with the
same duty to declare the election OF its own
members and organize in any legitimate way,
IS before the passage of that act.
Question 5-Answer-In the answer of jan
uary 8, 1850, this court held that in cases like
those stated in this question it is the duty of
the Governor and council to hear evidence and
determine whether the record or return is cor
rect, and if they determined the record
to be correct to receive it, duly
certified copy of it, to correct the
return as is provided in ch. 212 Of the act of
1877, but in such cases they are required to
determine an issue of fact whether the record