New-York tribune., 1880-01-17

tentGh to the cph'll&, "a We tbc sixteenth
question oTD,iH We reply that legally chosen scll
President OF the Senate may Oecon'c anv
! ing G vcrnor without the administration ol "nS h
otLcr oualiiviug oath than that whlch ne
has taken in his office of Senator me atsWrl ,e,, W.
the sixteenth question renders rcP'S " '"o
! tcenth unnecessary.
THE CITY MEMBERS ENTITLED 10 SEATS
XVlII.-To the eighteenth question we answer
as follows: 1t appears from the statement
of facts that the members from 'ho
five cities of Portland lewiston Rock
land. Bath and Saco were duly elected, az
well as by the returns before the uonoiroa ,',inns
and Council that hat by oon law WS.snc5 70 them;
that IN fact no summons was issued, and maj ma 'nom
names were not borne ON me foi p
ln'N W e. = n' ,ec r.o:s 25 motion was season
ably made that these membets appc"r'hg ~, Nv i '+d
turns before the House TO have been uniN e-,rco, -
should he permitted to partirpate y ne nnt
| zation but the Assistant Clerk rciu'eu 10 Pno P
tie motion and 10 entertain an appea,. pf ouse ,n
/ RI, tho.e returns the Representatives above a3-
reared TO be- elected; their seats were hot w.;
The Governor and Council could nor Wllhoi i'o to
lation of thci1 constitutional duy neglect TO issue ~
| Them 4 summons. nor the Secretary oi State ~
place ther names the certified roll Whch II WM11
bis duiv 10 furnish. The Governor and Couhcll
could not LEGALLY withhold their snmA9lSo' uIH li"iI
/ those appearing To be elected. lhoy c""!u
not ordcra summons 10 issue to some aPP''u,H. ~, ~
| be elected and withhold II from olhtis. II 'i'R
! could il would be in their power 10 s'i'C!
/ from the members appearing 10 De 1''lC.
those who should and those VINO snou'" 1iho H.,
take part IN the organlZa ION of the House lhr
section. - Il. :. {. .. restricts tine Nolc 10 tSc t
whose names are borne on the certified roll Inc
restricting the vote to those only whose h@luo9 ',I
| thus borne IS at variance WIN ,nH No.fa,t N.f
tuition, an far as restricts ana nllS me ar.lo,
| OF the House 20 those whom the Governor ana
! Council may select ana Eot 10 tio>c az
| nearing to he chosen and 10 those the
! House may determine To be lhemprIS. luo
| twelve members had right 10 act IN the oreahl-
It.fff leefi iDn
iusn,cnu of me returns. fhc House IN no way dcnlcu
fhcir right The question whether them names
shonll bee added to the roll VAS no, s"Dmis',,Ii s.,i
- ITS determination. pom tie I"c'' S5' Io'."
t,c, opcarr.l to bc aud were elected, and II is 10
be presumed that the House. knowing such l1ciS'
| Woud have prohibited Their acton, IL thc ci'I"
b.d 1,rn,ittod thc question to be put These NOM
bcrs had richt to take Part in tn" organization
of the House, until II shonld othcrN So determine
or act under certified roll Of l3o names
only and giving 40 rclrCScntauon 10 tnc
FIVE cities named, provided ne h1 1plfsen,a5I p,,.ii'a5
] lives from thc cities appeared ana CIalih'u
thc,r seats and the House took no action whatever
upon tine question Of thclr right 10 participate III
tfc oroaulz1 ,ion the clerk refusing 10 entertain
motion made for that purpose and refusing to EN-
| terrain an appeal from hi, ruling thereon.
XX.-To question twenty We answer IN the all.ih
atiyr unless the House has acted upon thc question
of :her nights 10 act rs members. ana determined
Xxi. and Mil Itistho opinion Of the Court that
! oupstionS II and 22 may be conveniently an
| syored together. Our answer Is this: or
| cnwsioncrs NAV exist which will JUS
tllv and render legal such an organization ~ the
senate and such an organization oi the House;
We think such organization, would he just ana
rendered legal by the existence oi hHcii
I circumstances as are rccitcd ln Tue statement oi
facts Submitted % Us, and that huch oigdhlzaiuh7'
effected under such circumstances, Wnuld constitute
| n legal Legislature competent TO perform all the
! functions cOnstltutlOuallY belonging 10 that
| department of our Government. lumult ana
violence are not requisites Ia the duc assertion "i
lcg,l rights. They should be avoided whenever
It H.. Nrl.rrs Inc .fft ftff
| except in cases of the EXTREMIST necessity such
peaceful modes % Organization are inr prcicrAbe -
= resort 10 violence NoIights should be los, by those
who scasmaby assert them and appeal 10 the
! Constitutional tribunals, instead oil TrsoitinS 10
| XXIu. II Will follow from the answers TO ques-
tous ~ and ~ that this question Tor the reasons
and upou the cIrcum-ia ianccs there referred 10, must
| he answered also in the affirmative.
! NXNI-Ouc. who under such circumstances. rc-
| turu. his summons and resigns bis scat, thereby
| makes "a vacancy i'm tie House which II to
| assemble which vacancy may bc hucd b. a
new election. under the provisions "l Atc'e j..
| Pant l. See g. OF the constitution. That the proper
steps may De- taken by the municipal officers to That
| end il ~ necessary 10 regard such resignation As
| irr.vocable. II when once made II could be re-
! called at will, the municipal officers could
never know that TIE seat was vacated
signed cannot be- cOmpcll'N attend as q member.
| lie IL no longer member. The language ot the
Court touching the power OF the houses 10 compel
thcatendancc of thelr member III ~,
opinion gwen III % Maine 3G3 applies only those
who without yacatlng their scat, absent thcli-
selves from the sessions OF tHc n""F l"
which tlrv were elected. IL would be alike
contrary to the spirit OF onr INSTITUTIONS
and detrimental TO pubic policV 10 holi th'l
a man uliaht be compelled To accept an office OF
such character. We therefore answer the question
AWHILE our recent answer to questions pre-
seBted by the Governor We saii III SUD
stance that one of the objects ol
the Constitutional requirements Of record
of the vote to be made at the same tune
.tfg
fhc return, was to guard against the
possible result of mistake, accident, -, OF
iraud In the official returns of votes When
are lost concealed, or inaccessible by ac-
cdcnt or fraud, the result OF the election
NAV still bo ascertancd by using certified
COPIES of the official records mentioned IN
! thc question. Neither the carclcssncss nor the
| tnrpItude of tie officers charged with the making
or custody of tho returns can be suffered To
defeat The will of the people. rs expressed ill
tho election. 40 long the Legislature can ascertain
il from the records thus made. True, IN,
Constitution provides that the Secretary of STATE
shall on the fiIst Wednesday Of JanUafy lay
the lists before The senate and House OF Rrpescn-
tiycs but this provision Is directory ana ialur.
| TO comply with II cannot defeat the H@hi
Of the Legislature TO ascertain and declare
the result of the election. When the francr-
of our Constitution and our legislators have
taken such pains 10 perDetnatc the evidence
Of the votes cas- cas-. ana TO Enard tnat cyid'hg, hG
of human fallibility or perlidy. 1t Is not
TO be thrown away because the Secretary O
the State fails, or Is unable 10 comply VIII
this direction. The Constitution ~ 10 be construed
when practicable. IN all It's parts not n
| 10 thwart, but Hs to advance, its man
obcct-tho continuance and orderly conduct o
government by the people. We answcrthc question
| In the affirmative.
GENERAL CONCLUSIONS.
The questions before us are attestcd II
the usual mode. and purport to com'
from organized bodies They are of the ut
most importance. Our answers are entirely
based on the assumption of tic existence of the fact
as therein set forth We cannot decline an answer
we would in case like the present. he remark
of Chicf-Justico Marshall in Cohens agt. Vir