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

SOHStASAs nv "a w ~ LIE
question covers much of the ground en-
braced by these questions. The holders o
summ0nses which are void for the resso,
that the governor and council failed to cor
rectlv perform the constitutional obligatio,
resting on them, have no right to take par
in the organization, or 10 any subseQuen
proceedings OF the house to which they ar
wrongly certificated.A They Ore not in fac
members. but the members rightfully elect
ed, as shown BY the official returns and tn
Opinion Of the Sburt or the proposition,
heretofore by the governor presented to tn
court, are entitled to appear and act in th,
organization of the house to which they be
long, unless the house and senate 10 judg.
ing Of the election and qualification OF mem
bers shall determine to the contrary. A
member who is not summoned, who ap-
pears to claim bis seat, ia prima facia enti-
tied to equal consideration with q member
who has the summons. He is not to be de
prived of position belonging to him or
account of the direliction OF those whose
du:v it was to have given him the usual
summons. The absence of that evidence
may be supplied bv other evidence of mem
bership. The house and senate have the
same right to consider and determine
whether In the first instance such persons
appear to have been elected, and finally
whether they were in fact elected, as they
have of any and al! persons who appear for
the purpose of composing their respective
bodies under the facts recitcd in the state
ment submitted to US. We are Of The opin-
ion that Lewis Water and associates, first
named in the question. we're not entitled to
act. and Cyrus Thomas and associates, last
~ named in the QueEtion, were entitled to
act IN the house as members, and Daniel w.
True and those first named in question four
were not entitled to act, and that An
drew Holmes and others with him named
were entitled to act as members
of the senate. In neither case did
the senate OF house itself act on the question
of their membership. Both the senate and
house, meaning the bodies assembled to be
organized as such, were debarred from any
action therein by the conduct of the presid-
log secretary and clerk. The assumption
of such officers that no question should be
entertained relative to the rights of the per-
son whose names are not on the rolls
furnished by the secretary of state, but who
were claimants of the seats understandable.
The statute of 1869 embodied in the revised
&c. II. 2, Sec. 25), cannot preclude
tu0 oC0otC VI AOu6C HULL 0uuCuAluk SUI
the rolls of membership accord
ing to the facts. Each house has the con.
right to organize itself. The
form provided for aid and convenience in.
organization does not confer upon
. temporarily presiding officer such con.
power. We have not failed to care
fully consider the act Of 1869 &C. 67) incor-
into the REVISED statutes, &c. 2, C.
H. 25), and go far as it declares that mo
person shall be allowed to vote OF take part
in the Organization of either branch of the
legislature ~ a member, unless his name
lppears on the certified roll Of that branch
II the legislature in which he claims to
act," We think it clearly repugnant to the
which declares that each house
lhall be judge of election and the qualities
lion of ito own members. 1t aims to con-
Erol the action of each within it's cons.itu-
tionsl powers till after the full org anization.
With . majority determined and fixed by
he governor and council by, their action in
certificates 10 men appearing to be
or refusing to gran certificates to
men clearly elected, they may constitute
sash house with . majority to suit thei,
OWN purposes, thus %strangling and over
the popular will as honestly
impressed by the ballot. The doctrine Of
that act gives to the executive department
power TO rob the people of the legislature
they: have chosen, and force upon them one
serve its own purposes. 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 q before the passage of that act.
Ques,lon 5.-Answer. In the answer of
January 8, 1880, this court held that in