The Portland daily press., 1880-01-28
SETTLED.
The Supreme Courts Answer
to the Fusionists.
The Republican Legislature De-
clared to be the Legal One.
SETTLED.

BANGOR, JAN 27.-The following is the fuu
text of the unanimous decision of the Supreme
Judicial Court completed this evening, decln-
ing to recognize the Fusionist bodies at Au-
gusta and explicitly declaring the House and
Senate now holding sessions in the State House
the legal Legislature of Maine.
BANGOR, Jan. 81, 1880.
In response to the foregoing communication
the undersigned, Justices of the Supreme Jul
dical Court, have the honor to say that while
we cannot admit, even by implication, that the
statement and questions now before us are
presented by any legally organized Legislative
body SO as to require an opinion from us under
the Constitutional provision TART. 3, sec. - we
feel that we should be emitting an important
service which the people OF this beloved state
and the gentlemen VIII have presented these
questions, presumably from an honest desire to
know their duty as citizens in the premises,
might fairly expect of us, if we failed to give
some of the reasons which compel US to de-
cline to entertain and respond to the aforesaid
statement and questions based thereupon.
The solemn occasion is indeed here, in the
UNPARALLELED and ominous events of our his
tory which have occurred within the last few
months, but we are bound to declare that these
questions are not presented by legally con-
stituted legislative body, for the following
reasons briefly stated: When different bodies
of men. each claiming to be and to exercise
the functions of the legislative department. OF
the state, appear, each asserting their title to
be regarded as the law givers for the people, 1t
issthe obvious duty of the Judicial department
who must inevitably at no distant day be call
ed to pass upon the validity of the laws that
may be enacted by the respective claimants to
legislative authority, to inquire and ascertain
for themselves, with or without questions pre-
sented by the claimants, which Of these bodies
lawfully represents the people!from whom they
derive their power. There can be but one
lawful legislature. The court must know for
itself whose enactments it viii recognize as
laws of binding force. whose leYies of taxes it
will enforce when brought judically before it,
whose choice of prosecuting officer before
the court it will respect. In thousand ways
it becomes essential that the court should
forthwith ascertain and take judicial cogniZ-
ance of the questions which IS the true Legs
lature.
The existence OF certain facts, raising ques-
lions as to the powers and duties of the Cover
nor and Council in canvassing the votes for
members of the Senate and House of Repre-
sentatives, was necessarily implied In the
questions propounded by Governor Garcelon
and answered by this court under date of JAN
uary Sd.
To put such questions in the absence OF
facts requiring their solution would be an
abuse of the power of the executive local for
the opinion of the court upon questions OF law
on solemn occasions. These questions were
fully answered and by the answers it appeared
that the acts and doings of the Governor and
Council in issuing certificates OF election to
certain men as Senators and members OF the
House of Representatives who did not appear
to be elected, and declining to issue certificates
and s,lInmonSes to certain men who did APP
pear to be elected, were in violation OF their
legal and constitutional Obligations and duties.
We are bound to take judicial notice of the
doings of the executive and legislative depart
ments of the government, and when called
upon by proper authority to pass upon their
validity. We are bound to take judicial
notice of historical facts, matters OF public
notoriety and interest transpiring in our
midst We cannot accept statement which
asserts as facts, matters that are in conflict
with the record and with the historical facts
that we are not at liberty to disregard. We
cannot shut our eyes, to the TACT that the
garded the opinion of the Court given in
answer to the Governors questions. omitted to
revoke the summonses illegally issued to men
who did not appear to be elected, or to issue
summonses to men who did appear tc be
elected.
We know that the officers who presided in
the conventions of members-elect of the
Senate and House on the first Wednesday in
January recognized as members OF both those
bodies men who were unlawfully introduced
into them by the unconstitutional and illegal
methods pursued by the Governor and Council,
and refused to recognize men who appeared to
be legally elected, and refused to permit any
appeal from their illegal decisions to the
bodies over WHICH Ju0y WOIO tOAlItOldihy pro
siding. The report of the committee of the
Council and the action of the Governor and
Council thereon, of which we must take
judicial notice, show that men were thus ad-
mitted and excluded upon grounds which this
court declared in their answer to Governor
Garcelon's questions to be illegal.
1t cannot be successfully claimed that there
was ever quorum in the House OF Represen-
tatives which undertook to organize on the
first Wednesday of January without counting
| FOL aa1a tod haoo
the late Governor and Council pursued modes
which this court declared in their lswers to
his questions to be unconstitutional, illegal
and void. These men were not in fact elected.
They did not appear to be elected by the re-
turns canvassed in the manner in which the
constitution and laws, rightly interpreted, re-
CURED the Governor and Council to canvass
them We cannot recognize House of Rep
resentatives, to make quorum in which the
presence of these men was necessary, as a
lawfully constituted body or capable OF per-
forming any of the functions of a House of
Representatives when due protest was made
on behalf of those who were in fact elected by
the people.
In like manner the presence in the Senate
of men claiming seats to the exclusion of those
whom canvass legally conducted would show
to be elected-and Eeing recognized as MEM
| bers by the tie mporary presiding officer, who,
though protest against his illegal action was
made on the spot, refused to permit an appeal
tors elect, vitated the organization of that
| body. We have only to reaffirm the principles
we asserted in our answer of Jan. 16, 1880, upon
these subjects, in coming to the result that the
bodies propoundihg to US the foregoing CUES
tions are not legally organized House of Rep
resentatiyes and Senate under the constitution
| of the State.
1t remains to be considered whether there
| is a legally organized Legislature in existence,
| entitled to enact laws that will be binding up
~, nd of tho State The
| action of those controlling the proceedings on
| the first Wednesday of January 1880, has not
| been acquiesced in by quorum OF those ap-
| pearing to have been elected to either house.
| 1t is matter of history that, after unsuccess-
full resistance to the illegal action of the off
| GERS attempting to create the legislative organ
| ization on that day, majority of persons who
| appeared to be elected to the two houses form
| ed an organization of themselves. They re-
| Trained from forming an independent Organi-
zatisn until the 18th of January, hoping until
| then to obtain their rights in some other way.
| They were forced into such position by the
| illegal action of the minority OF members,
whose action they were not obliged to submit
| to and which they could in no other reasonable
| manner resist The organizations made on
January 18th, were made by majority of the
| members appearing to be elected and having
the prinoa facie right to seats. The point is
raised, by the statement and questions sub
| mitted, that no legal organization could be
formed on January 18th, because no notice OF
| the intended action was given to the minority
| or non attending members so as to enable them
| to participate therein. The minority were not
excluded. The organization was made ai IN
| claiming to be, and still claiming to be, the
| lawful Legislature.
1t is not to be presumed that they would have
abandoned that organization at that time mad
notice been given. We do not think that the
want of notice invalidates the organizations of
| January the 18th There may be irregulari-