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

the letter Of the constitution II Ia at least
doubtful whether tho president ofthe senate
10 required TO take q new oath before ex~r-
cisinE the office Of governor when that OF.
ice has become vacant in the manner apec.
i6ed therein. The practice since the
organization Of the slate has, We believe.
been uniform against requiring suoh new
oath aud to such practical Interpretation Of
the constitution, in the absence Of the
express provision or manifest int ntion to
the contrary, we think the effect should be
given to the sixteenth question. A legally
chosen president of the senate may become
acting governor without the administration
of any other qualifying oath than that
which is taken in the office of senator. The
answer to the sixteenth question renders a
reply to the seventeenth unnecessary.
Question 1S.-Arswer. 1t appears from
the statement Of facts that the members
from the five cities of Portland, Lewiston,
Rockland, Bath and Saco were duly
elected, as we'll as by the returns before
the governor aud council; that by law a
summons should Of right have been issued
to them; that in fact no summons was issued
and that the names were borne on the roll
Terrified to the house as provided by the
revised statutes wv. G. 2, section 25]. A
motion was s%easonably made that those
members appearing by the returns before
the house to have been duly elected should
be permitted to participate in it's organiza.
ton, but the assistant clerk refused to per-
nit the motion and entertain an appeal,
BY the constitution the returns were before
the house. By these returns the re.
presentatives above named appeared to be
elected. Their seats we're not contested.
The governor and council could not with.
out violation of their constitutional
duty neglect to issue to them the summons,
nor the secretary of state to place their
names on the certified roll, which it was his
duty to furnish. The governor and council
could not legally withhold their mmonses
from these appearing to be elected. They
could not order a summons to issue to some
appearing to be elected and withhold 1t
from others. If thew could, it would be in
their power To select from members appear
ing to be elected those who should and those
who should not take part in the organiza-
ton of the house. (Section %, Revised
Statutes, G. 22.) To restrict the vote to
those whose names were borne OH the certi.
fed roll, and the instruction to those only
whose names are thus borne, is at variance
with the constitution in 80 far as it restricts
and permits the action Of the house TO those
whom the governor and council may select.
and not to those appearing to be chosen,
and to those the house may determine are
members. Twelve members had a right to
act IN the organization Of the house. Their
election was patent on inspection of the
returns. The house is no way denied their
right. The question whether their names
should be added to the roll was not submit-
ted to its determination. On the facts set
forth they appeared to be, and we're, elected
and it is not to be presumed that the house,
knowing such facts, would have prohibited
their acting. Ii the clerk had permitted
the questions to be put these members had a
right to take part in the organization of the
house until it should reach a determine.
tion.
Question 19.-Answer. The house can
not legally organize or act under the certi-
fed roll of 139 names only and giving no
representatives to the five cities named, pro.
vided the representatives from the cities ap.
peared and claimed their seats, and the
house took no action whateyer upon the
question oftheir right to participate 10 the
organization, the clerk refusing to entertain
y motion made for that purpose and refu-
sing to entertain an appeal from his ruling
thereon. e
Question 20. We answer in the afarms-
tive, unless the house has acted upOn the
question of their right to act as members
and determine to the contrary.
Questions 81 and 22.-Answer. It ia the
opinion of the court that questions 81 and
% may be conveniently answered together.
Our answer Is this: Circumstances NAV
exist which will justify and render legal
such an organization OF the senate and such
an organization of the house. We think
such organizations would be justified and
rendered legal by the existence of such cir.
cumstances ss we have recited in the state
ment of the facts submitted to US, and that
such organization effected under such cir
cumstances would constitute q legal legisls.
ture.
Question rs. Answered in the aflrma-
tive.
Question 26. Answer One who under
SUCH circumstances returns his summons
and resigns his seat, thereby makes a va
cancy in the house which Ia to assemble,
which vacancy may be filed by a new cleo
ton. CProvisions of article 4. part /, Sec
ton 6 of the constitutional. That steps may
be taken by the municipal officers to tina,
end, it Is necessary to regard such resigna
lion as irrevocable. II, when once made, II
could be recalled at will. the municipal off
GERS could never know that the seat was va
Gated by resignation. One who has thus
resigned cannot be compelled to attend as
a member. He is no longer q member, and
we therefore swer negatively.
Question 2 7-Auswer. In our recent an.
ewer to the questions presented by the gov.
ernor, we said in substance that the objects
of the constitutional requirements that a
record Of the vote be made at the same
time and authenticated in a like manner
with the returns. was to guard against pos.
sible result of mistake, accidental, or fraud
in the official returns of votes. When such
returns Of vote for governor are lost, con
cealed, or inaccessible by accident or fraud,
The result Of the election may be ascertained
by using a certified copy OF the official rec
ords mentioned in question. We answer
the questionin the affirmative.
"
THE BRADLY