The Portland daily press., 1880-01-17


own purposes. 1t poisons the very fountain of
legislation and tends 70 corrupt the legislative
department. of the State. 1t strikes sdeath
blow at the heart of popular government and
renders itsi fountain and great bulwark--the
will of the people as expressed by the ballot
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 as before the passage of
that act.
Question 5.
5. Does the same rule apply when the men,
Der summoned appears by the returns to be
elected only because of some error in the name
Or initials of the candidate not summoned,
when such error is correctable by law under
the decision of the court, and the official re-
cords state the name and initials correctly, I'M
der the facts of the Lincoln Senatorial district
and the Representative districts of Exeter
Newcastle, Gouldsboro, Webster and Robbins
ton. as recited in the statement herewith sub
mitted; or when the member summoned APP
pears by the returns to be elected only by re-
jecting the returns OF one town because UNI
signed by the town clerk; though duly at
tested copy of the record of said town is seas.
onably offered as substitute and rejected, UNI
der the facts as recited in the statement of the
district?
AnS.-In the answers of January $3.50, 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 correct, and if
they determined the record to be erect, to
ceive it or duly certified copy of it, to correct
the return as is provided in chapter 212 of the
acts of 1877. But in such a case they are re-
quired to determine an issue OF fact whether
the record or return is correct. And, SO far as
their action is concerned, in determining
that fact, we think their determination is con-
elusive, subject, of course, to be reversed by
the House IF, however, they should refuse to
hear evidence and determine the question,
and should, by reason of ssuch refusal, issue
the summons to the candidate not elected that
would fall under the rule above stated
Question g.
g. If the summons described in question
is void, and persons holding such summons
take part in the organization of either Senate
or House of Representatives, and without the
votes of such persons there are less than SIX
teen members in the Senate and less than
seventy-six members in the House voting Tor
and against any of the officers of the so-called
Senate or House, have such bodies any legal
organization or officers?
Ans-If objection was made to the admissi-
bility of the illegally summoned persons as set
forth in the statement presented to us, and the
houses took no action thereon, then an organi-
cation 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 quorum OF members 80 Me.
563) where less than quorum were elected-a
condition of things that might happen when 1t
required majority OF votes to elect Senators.
That decision met the necessities of that oc-
casion. But the doctrine of that case cannot
apply when quorum is in fact elected.
Questions and 8.
Z. Without such legal organization in either
House or Senate, or without sixteen members
in the Senate and seventy'six members III the
House, present and voting on the given meas
ure, can any valid law be enacted, any legal
officer be chosen, or any business whatever be
legally done, except to adjourn; and if any
business, what business?
s. Without legal organization formed and
legal officers chosen by seventy-SlX members
present and voting in the House of Represen-
tatives and sixteen members present and vot-
ing in the Senate, can either house compel
the attendance of absent members?
.4ns.-Without legal organization formed
and legal officers chosen by seventy-six mem
bers present and voting in the House of Rep
resentatives, by 16 members present and vot-
ing in the Senate upon the given measure, no
officers can be chosen, nor law passed, nor
business done except to adjourn. No less than
Seventy-siX can constitute quorum OF the
House of Representatives, nor can less than
sixteen members-now that plurality elects
constitute a quorum of the Senate, nor can
either house without a legal organization
formed and without legal officers chosen COM
pei the attendance of absent members. 1t is
the House Or Senate when formed and organ
lied that has the power to compel such atten-
Dance and it is not within the power OF per-
sons who are merely members elect to do SO.
The attendance may under our Constitution
be compelled by such penalties as each house
may provide. Until a legal organization has
been effected there is no House to provide PEN
alties for such purpose. Until legal organi-
cation is completed there is no officer in either
house to issue warrant against the Absent
members. No such power was committed or
intended to be committed into the hands OF
persons not comprising and acting as an Or
ganized and completed house. IL has fire.
quently happened in our history that legisla-
tive bodies have been delayed days and some
times weeks without being able to complete an
Organization for the want of quorum.
Question g.
8. To make up the legal quorum required
on any vote in either house, can the vote of
any person be counted who though summoned
does not appear to be elected by the official
returns under the Constitution ana the decl-
sion of the court?
Ans.-Not if the attention of the House is
called to the fact that such persons are illegal
ly summoned and objection is seasonably made
to the counting of such persons for the purpose
of making up quorum, and the House does
not act upon the questioned their admisabillty.
By the constitution article 4, section 5, The
Senate shall on the first Wednesday of
January annually determine who are elected
by plurality of votes to be Senators in each
district.
Questions 10, Ii and IL.
10. Can the Governor and Council legally
administer the qualifying oath to the members
elect of the House Of Representatives when
on yea and nay vote, as shown by the record,
only seventy-three members on both Sides in
elusive, vote on the motion to request the at
tendance of the Governor and Council for that
purpose?
II. Can valid organization of the House
be made under the Revised Statutes, chapter
2, section 49, when under the facts as stated IN
question 10, protest was entered at the time,
that no quorum was manifest on the yea and
nay vote, and notwithstanding that protest the
clerk refused to put motion to adjourn and
the Governor appeared and administered the
oath?
administer the qualifying oaths to the men,
bers elect of the Senate when only twenty
members, both sides inclusive, vote on the mo-
ton to request their presence for that purpose,
and of that twenty, eight though summoned
did not appear to be elected by the official re-
turns under the constitution and the decision
of the court, and were not in fact elected?
Ans.-These three questions referring to the
qualification of members by the administration
of the required oath may be answered to-
cether. BY the constitution the oath is to be
taken and subscribed in the presence OF the
Governor and Council. By thesstatute, Revised
Statutes, chap. 2,ssec. %, the clerk of the pre-
ceding House shall preside until the Represen-
tatives elect "shall be qualified and elect
speaker. and if no quorum appear he shall pre-
side and the representatives elect present shall
adjourn from day to day until quorum ap-
pear and are qualified and a speaker is
elected"
Thus it will be seen that while by the
statute the clerk is to preside until a quoru m
shall appear and be qualified, it is not pro-
yided either in the constitution or the statute
that less number than quorum shall not be
qualified Nor can the yea and nay vote on
the motion to request the attendance OF the
Governor and Council for the purpose of ad
ministering4 the oath besdeemed OF any impor
lance. II the Governor and Council had APP
peared without motion on vote their au-
thority would have been the same. We there
fore answer that the qualifying oaths under
the constitution or statute may be administered
to the members elect of either branch in any
numbers though quorum must appear and
be qualified before proceeding to an election
of speaker, and if the whole number OF votes
for speaker is less than a quorum and there IS
nothing upon the record to show that
quorum was present and acting there would
be no election.
Question 10.
10. At what date in the year 1880 do the
terms of office OF the following State officers
elected in January, 1879, expire the Govern
or, the Executive Council the Secretary OF
State, the Treasurer, the Attorney General,