National Republican. (Washington City (D.C.)) 1872-1888, 1880-01-17

meaning the bodies assembled TO be organized as
such-were dobarrcd from any action thereon by
the conduct of tho presiding secretary and clerk.
Inc assumption OF such officers that no question
should be entertained relative to tho rights of per-
sons whose names are not upon the rolls furnished
by the Secretary of the State, but who were claim.
ants OF seats was unw1rrnntablc
The statute of 1862 embodied In the Revised stat.
utes (ch. p sec. 2j) cannot preclude either the Sem
alto or House from amending and completing the
rolls of membership. According to the facts, each
House has the constitutional right to organize
ITSELF The form provided for aid and convenience
in ellecting tho organization does not confer upon
temporarily presiding officer such conclusive
power We have not failed to carefully consider
the act Of 1869 &c. ca incorporated into Revised
Statutes (ch 2 2j and so far rs II declares that
NO person shall DO allowed to vote or take
part in the organization of either branch Of the
legislature as n member unless his name appears
on the certified roll OF that branch Of the lcgsla
turo In which he claims to act, we think II clearly
fepugnant TO the Constitution, which declares
that each House shall be the judge OF the election
and qualification OF its own members-is aims TO
control the action of each within ITS constitutional
powers till after full organization with u major
ity determined and fixed by the Governor and
Council. by their action in granting certificates
TO men not appearing to DO elected, refusing to
grant certificates to mcn clearly elected, they may
constitute each House with q majority to sui
their own purposes, thus stranglng aud owe =
throwing the popular will rs honestly expressed
by the ballot The doctrine of that uct gives to tho
executive department the power to rob the people
OF the legislature they have chosen and force upon
them one 70 serve Us purposes It poisons the very
legislative department of the government. II
strikes n death blow ut the heart OF popular gov.
ernment and renders its foundation and great bull
warlt-tho viii of tho people as expressed by tibet
bnllot-a farce. Each House has the same power
aud Is charged with the same duty-to declare tho
election of Its own members aud organize in any
legitimate way as before the passage OF that act.
QUESTION 3. Answer-Gn the answers OF January
s. 1880 the court held that in cases like those stated
in the question IL Is the duty of the Governor
and Council to hear the evidence and determine
whether the record or return is correct ard II
they determine the record to be correct to re.
ceve It, duly certified copy of II, to correct the
return us is provided in chapter 2l2 OF the acts OF
1877, but in such case they are required
TO determine All issue of fact whether
the record or return Is correct, and so far
as their action is concerned In determining that
fact, we think their determination is conclusive
subject, of course. TO be revcrseFby the House. IT,
however they should refuse to hear evidence aud
determine the question, and should by reason oil
such refusal issue the summons tD the candidate
not elected, the case would fall under the rule
QuEsrIoY 6. Answer-If objection was made
to the Odmissbity of the illegally y-sllmmoned
us and the House took no action thereon then the
organizing of the House or Senate in the manner
described IN the question would be Illegal aud
void. The court expressed the opinion OH former
occasion that the Senate could organize with less
than a quorum of members were less than u
quorum elected, Il condition of things that might
happen when 1t required majority Of votes t.
elect Senators. That decision met the necessities
OF that OCCASION but the doctrine of that case can
not apply when quorum is in fact elected.
QUESTION 7. Answcr-Without legal OrgnniZa
ton formed aud legal officers chosen by seventy
six members present and voting in The House OF
Representatives and by sixteen members present
and voting In the Senate upon n given measure
no officers can be chosen nor law passed nor any
business done, except to adjourn. No less thar
| sevontysix members can constitute quorum ol
tho House of Representatives. nor can less than
sixteen members, now that plurality elects, con
stitute n quorum of the Senate; nor can eithei
House. without legal organization formed and
| NtFfI n
| ance of absent members 1t is the House or Sem
ate, when formed aud organized, that has Tho
power to compel such attendance, and II is no
within the power of persons who aro merely mem
| bersClect to do so The attendance may, under
our Constitution, be compelled by such penalties n
each House may provide Until legal organ izatioi
has been effected, there is no House 10 provide pen
altes for such purpose. Until legal Organization
is completed there is no officer in either House Il
| issue a warrant against the absent members. NJ
such power was committed or intended to b,
committed, into the hands of persons not compris
| ing and acting as All organized and completed
that legislative bodies have been delayed days an;
sometimes weeks, without being able TO compet,
an organization for the want Of a quorum.
| QUESTION 0. Answer-But If the attention OF the
House Is called to the fact that such persons II
legally summoned and objection Is reasonably
made to tho coming OF such persons for the pur
pose of making up aquorum. ana the House doe
not act upon the question of their admissability
by the constitution, Act H. section ., The Senate
SHALL on the first Wednesday of January, Gnnu
\
| the votes 10 he Senators in each district
QUESTIONS 10, II and l2-Answor, r,I,.TheSe three
questions referring to the QUALIFICATION Inc
oath may be answered together By the C0nsttu
ton the oath Is to be taken and subscribed In thu
| presence OF the Governor and Council. BY tn,
statute (Rcyised Statutes chap. 2 sec. 23) the Cerl
| of the preceding House shall preside until The
| Represcntatves-elec "sha bo qualified and cleo
| a Speaker, and If no quorum appear he shall pre-
side, and tho Representatives-elec present shal
| adjourn from day to day until quorum appear
and are qualified and Speaker Is elected Thus u
will he seen that while by the statute the clerk Is
10 preside until quorum shall appear to be qunl
fed II Is not provided either in the Constitution oi
the statute that less number than quorum shall
not be qualified, nor can the ea.andnay vote Oh
the motion TO request the attendance OF the Gov
ernor and Council for the purpose of administer
Ing the oath be deemed of any Importance. If the
Governor and Council had appeared without q
motion or q vote their authority would have been
the same We therefore answer that the quail
flying oahs under the Constitution or the statute
may be administered to the mcmbcrselcCt of either
branch In any numbers, though quorum must
appear and be qualified before proceeding to M
election of Speaker and if tho whole number OF
votes for Speaker is less than a quorum and there
Is nothing OH the records TO show that u quorum.
was present and acting, there would bcno election
Question 10. AnSWer-The Governors term OF
office and also that OF his Council expired at mid
night following the first Wednesday of January
1880. The term of the other officers mentioned IN
this question will expire when their several sue
cessois are elected, as provided IN the Constitu'
ton,
QUESTIONS II, 2i ana 20. AnSWer-TO the l4th
9th aud 2jth questions proposed we answer fol
lows In the general provisions OF the COnslllu'
ton article g. certain olthS or 0nlrmNtions are
prescribed for persons elected, appOintoi or com.
mssioncd TO the Onlces therein mentioned. II ap-
pears that those before whom the prescribed Ouths
were to be administered refused to act, and that now
there is no existing Governor and Council before
whom they can be administered. The oath is pre-
SCribed; the terms are essential, llS binding DrCc
depends upon It's terms-not on the magistrate by
whom 1t Is administered. II there are no Governor
aud Council, or being Governor and Council,
thoy refuse to administer the oath 10 one Repre-
sentative or 70 all Qor there eau be refusal to NIL
equally to one) what Is the result? Is anarchy to
triumph?
lis The government to be destroyed or It's action
paralyZed because there Is no Governor and COun-
Gil before whom the presc rlbod oath tObe taken
We think not. The prescribed oath from tho ne.
trsie authorized to administer oaths The
members must be sworn before thoy can
act. II is by their action that n Gov.
ernor and Council thereafter is to bo elected
not be presumed that the trainers OF the consttl-
tiOm had IN contemplation that the oath had better
not be administered at all than administered by
any other officer than tho one designated thorei
This is one Of the most reliable tests by which 70
distinguish directory from u mandatory provi'
sion Estate VS.. Smith 81, Maine 32S.l
QUESTION To- Answer-Our reply TO the fifteenth
question ~ in tho negatiyei that ono whose only
title 10 the Presidency of the Sonute is by Virtue OF
such an election cannot become the Acting Cover
nor because lie Is not tho legal President Of the
Senate II of the twenty voting at such OaOiCe OF
President OF tho Senate eight did not appear 10 be
elected by the official returns under the COnstitu'
ton and tho decision of the court, and were not In
could be no valid election OF permanent officers,
Notwithstanding the eight had been summoned by
the Governor and Council Without legal
quorum, aud with these eight participating IN the
"a nf Iu la