Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-01-18

ent ON an inspection of the returns. Inc house
| in no way denied their right. The question
| whether their names should be added to the
roll was not submitted to its determination.
| Upon the facts set forth thoy appeared to be
and were elected, and it is not to be presumed
that the house, showing such fears, would have
prohibited their acting if the clerk had per-
mitted the question to be put. These mem
| bers had a right to take part in the Orgauiza-
| ton of the house until 1t should otherwise de-
termine.
| Question l9-Answer-The house cannot le-
gally organize or act under certified roll OF
! 1879 names only, and giving no representation
| to the five cities named provided representa-
tives from the cities appeared and claimed
| their seats, and the house took no action what
ev r upon the question of their right to partic-
ipate in the organization, the clerk refusing to
! entertain motion made for that purpose and
refusing to entertain an appeal from his ruling
thereon.
Question 2O-Answer-We answer in the af-
firmative, unless the house has acted upon the
question of the right to act az members and
determined to the contrary.
Questions 81 and 22-Answer-It is the
| opinion of the court that questions Fl and 20
may Ice conveniently answered together. Our
answer is this: Circumstances may exist
which willsjustify and render legal such an
ganization of the house. We think such
CARNATIONS would be justified and rendered
legal by the existence of such circumstances
as we have repeated in the statement of facts
submitted to US and that such Organiza-
tions effected under such circumstances
would constitute legal legislature competent
to perform all the functions constitutionally
belonging to the department of our govern
ment. Tumult and violence are not requisites
to due assertion legal rights. They should be
| avoided whenever it is possible to do SO. They
can never be justified, except in cases of the
EXTREMIST necessity. Such peaceful modes of
organization are far preferable than a resort to
violence. No rights should be lost by those
who reasonably assert them, and appeal to
constitutional tribunals. instead of resorting TO
force.
Question 23-Answer-It will follow from
the answer to questions twenty-frst and
twent y-second, that this question, for the
reason and upon the circumstances thus refer
red to. must be answered also in the affirma-
tive.
Question 26-Answer-One who under such
circumstances returns his summons and re-
signs his seat thereby makes vacancy In the
house which is to assemble, which vacancy
may be filled by election, under the pro-
visions of article D, part !, section of the con-
stitution. That steps may be taken by NUM-
cipal officers to that end it is necessary to re-
gard such resignation as irrevocable if. when
once made, it could be recalled at will, NUM-
cipal officers could never know that seat was
vacated by the resignation. One who has thus
resigned cannot be compelled to attend
as member. He isJno longer member. The
language of the court touching the power of
the house to compel the attendance
of their members in the constitutional
opinion given in 81 Maine. 353, applies only
to those who, withsut vacating their seats
absent themselves from sessions of the body
to which they were elected. 1t would be
alike contrary to the spirit of our institutions
and detrimental to public policy to hold that a
man might be compelled to accept office of
such a character; we therefore answer the
question in the negative.
Question 27-Answer-ln our recent answer
to questions presented by the governor, We said
in substance that one object of the C"nstltu-
tiOnal requirement is that the record of the
vote be made at the same time and authenti-
Gated in like manner with the return, was to
guard against the possible result of mistake,
accident or fraud, in official returns of votes
when such returns of the State for governor
are lost, concealed or inaccessible by accident
or fraud, the result of the election may be
ascertained by using certified copy of the
official records mentioned IN the question.
Neither the carelessness nor turpitude of Off
GERS charged with making n custody of re-
turns, can be suffered to defeat the will
of the people as expressed in the election, SO
long as the legislature can ascertain 1t from
the records thus made true.
The constitution provides that the Secretary
of State shall on the first Wednesday OF Janu
airy lay lists before the Senate and House of
Representatives, but this provision is direc-
tory, aud failure to comply with is cannot
defeat the right OF the legislature to ascertain
and declare the results of the election. When
the trainers of our constitution and our legis-
lators have taken such pains to per-
petuate evidence, votes cast, aud guard
that evidence against the effort. not only of
accident by human fallibility or perfdy, i. is
not to be thrown away because the Secretary
of State fails or is unable to comply with this
direction of the constitution to be construed
when practicable in all facts not to
thwart but to advance its main object, continu-
ence and orderly conduct CT government by
the people. We answer the question in the
affirmative. The questions before are at
tested in the usual mode, ard purport to come
from organized bodies. They are of the Mt
most importance. Oar answers are entirely
based upon the sumption that OF exist
ence of facts therein set forth. We can
not decline answer of the world in q case
like the present. The remark of Chief Justice
Marshall in Cohens VS.. Virginia. peculiarly
applicable. st is most true" he says, that
this court will rot take jurisdiction if it
shonld not; but it is equally true that it
must take jurisdiction. If it should. The
Judiciary cannot, as the legislature may avoid
a measure because it approaches the cenfHes
of the constitution. We cannot pass it by
because it is doubtful, with whatever doubt
or whatever difficulties case may be amend
ed, we must decide if it be brought before
US. We have no more right to decline the ex-
ercise of jurisdiction which Is given them
to nsurp that which is not given. The one
the other would be treason TO the constitu-
ton. Questions may occur which we would
gladly avoid, but We can't avoid them.
(Signed)
JOHN APPLETON, CHARLES W. WALTON,
NM. q. BARROwS, CHARLES DANFORTE,
JOHN A. PETERS. ARTEMUS LIBBEY,
JOSEPH w. SYMoNDs.