Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1880-01-19

OF the ectA OF 1871. But IN such case they
are required to determine an issue Of fact
whether the record or return is correct, and
30 far - this action is concerned in deter
mining that fact We think their determina-
ton is conclusive. subject of course, to be
reversed BY the house. II, however, they
should refuse to hear the evidence and
determine the question, and should by rea.
son of such refusal issue \ summons to
candidates not elected, the case would fall
under the rule above stated.
Question 6.-Answer. If objection was
maderto the ad%missibllity Of the illegally
summoned persons, as set forth in the state.
ment presented us, and the house took no
action thereon, then an organization of The
house or senate in the manner described in
this question would be illegal and void.
The court expressed the opinion on a former
occasion that the senate could organize with
less than q quorum of members, (l35, Maine
$685. where less than q quorum were elect.
ed, q condition of things that might happen
when it required a majority of the votes to
elect the senators. That decision met the
necessities of that occasion, but the doctrine
OF that case cannot apply when a quorum is
in fact elected.
Question 7.-Answer. Without a legal
organization formed, and legal officers
chosen by seventy-six members present and
voting in the house of representatives, and
BY sixteen members present and voting up.
on a given measure, no officers can be
chosen, nor law passed. nor business done
except to adjourn. No less than seventy
six members can constitute a quorum of the
house of representatives nor can less than
sixteen members DOW that a plurality elects,
constitute a quorum of the senate ; nor can
either house without a legal organization
formed, and without legal officers chosen,
compel the attendance of absent members.
It's the house or senate when formed and
organized that has the power to compel such
attendance. Attendance may under our
constitution be compelled by such penalties
as each house may provide until legal or
ganization has been effected. There is no
house to provide penalties for such purpose
until legal organization is completed.
Question 9-Answer Not if the atten-
ton of the house is called to the fact that
such persons are illegally summoned and
the objection is reasonably made to the
counting of such persons for the purpose of
making up a quorum and the house does
not act upon the question OF their admissa.
5ility. By the constitution (%article 4, sec.
G1Ou OSJ tuC 6GA6kC 6uhlk vi Iuc uESL wen.
nesday OF January, annually determine who
are elected by a plurality Of the votes to be
senators in each district.
Questions 10, IL and 12-Answers. These
three questions referring to the qualification
quired oath may be answered together. By
subscribed in the presence of the governor
/ orl oo,,nns1 h. III ,sot.,k, (Do.:onl
OF, sections 2 end 81 The clerk of the
resentatives elect shall be qualified and elect
a speaker, and if mo quorum appear he .hall
preside and the representatives elect present
UNI appears and are qualified and the speak
while by statute, the clerk is to preside
until a quorum shall appear and be qualified,
it is not provided either in the c%on-titution
or statute that's less number than a quorum
shall not be qualified, nor can a yea and
nay vote on a motion to request the atlen-
dance of the governor and council, for the
purpose of administering the oath, be de-
creed of any Importance. If the governor
and council had appeared without motion or
vote, their authority would have been the
III 80 W. SACACtOlC duSWGx Su0t ludllIy iIS
oaths under the constitution or statute may
be administered to members elect of either
branch in any number, though a quorum
ing to an election of a speaker, and if the
whole number of votes for speaker is less
tn IN a quorum, and there is nothing upon
sent and acting, there would be no election.
Question 13-Apswer. The governors
term of Office, and also that of his council,
expired at midnight following the first
Wednesday Of January. 1880. The term of
the other officers mentioned in this question
will expire when their several successors
are elected, as provided 10 the constitution.
Questions IA. "a and 25.-Answers. The
questions proposed are answered as follows:
10 the general provision Of the constitution.
article 8. certain other af1rmations are pre-
scribed for persons elected, appointed or
commissioned to the offices therein men,
toned. 1t appears that those before whom
the prescribed 0atbs we're to De admins
tered refused to act. and that now there is
no existing governor and council before
whom they can be administered. In the
administration of the oath, prescribed terms
are essential. Its binding force depends
upon its terms, not on the magistrate by
whom it is administered. If there Is no
governor and council, or being a governor
and council they refuse to administer the
oath to representative, or to all, for
there can be refusal to all equally as TO one.
The prescribed oath from the necessity of
the case may be taken before a magistrate.
authorized to administer oaths. The mem
bers must be sworn before they can act. It
is by their action that the governor and
council thereafter is to be elected and the
governor continued. 1t cannot be presumed
thetf trainers of the constitution had in
contemplation that the oath had better be
administered at all than administered by
any other officer than The one designated
This is one of the most reliable
tests by which to distinguish a directory
from a mandatory provision Estate vs..
81 Maine 328).
Question 15.-Answer. The reply is in
he negative. One who're only title to the
of the senate is by virtue of
such election cannot become acting COVER
nor, because he is not legal president Of the
senate. If of twenty voting at such choice
president Of the senate, eight did not