The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1880-01-28

ulLlSe anu Ahe dGLluu VI LHe hUFeIHOl
: and Council thereon, Of which We must
take Judicial notice, show that men were
thus admitted and excluded on grounds
: which this Court declared in their answer
to Governor GarCeloH's questions TO be
untenable and illegal. II cannot be sue
cessfully claimed that there was ever q
quorum in the House Of Representatives
which undertook TO organize OH the first
Wednesday OF January without counting
men who could only appear 10 be elected,
because the late Governor and Council
pursued modes which this Court declared
in their answers TO his questions TO be- I'M
constitutional, illegal and void. These
men ere not in fact elected.
They did not appear to be elected by
the returns canvaseed IN the manner In
which the constitution and laws, rightly
interpreted, required the Governor
and Council to canvass them. We can
not recognize House of Representatives
TO make quorum on which the presence
OF these men was necessary as a lawfully
constituted body, or capable OF performing
any functions OF the House ot Represent
atiyes, when due protest was made in be-
half OF those who were in fact elected by
the people. In like manner tho presence
in the'Senate OF those.claiming seats TO the
exclusion OF those whom a canvass, legally
conducted, would show to be elected, and
being recognized as members Of the Con.
vention by temporary presiding officer,
who, though protest against his illegal
action, refused TO permit an appeal from
his decision 70 the Convention OF Senators
elect, vitiated the organization OF that
body.
We have only 10 reatfirm the principles
we asserted in our an0wers OF January l6,
1850, upon these subjects, in coming to the
result that the bodies propounding to US
the foregoing questions are not legally
organized House OF Representatives and
Senate under the constitution fthe State.
1t remains to be considered whether there
is legally organized legislature in exist
ence entitled TO enact laws that must be
binding upon the people and courts OF the
State. The action OF those controlling the
proceedings on the first Wednesday in
January, 1850, has not been acquiosced in
by quorum OF those appearing to have
been elected to either house.
1t is matter OF history that after an un-
successful resistance to the illegal action
OF the officers attempting to create legisla-
tive organization on that day, majority
OF the persons who appeared TO be elected
in the two houses formed IN organization
OF themselves. They reirained from form
ing an independent organization until the
18th OF January, hoping until then TO OBJ
tain their rights. They were forced
into such position by the illegal action
OF tho minority 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 l2th were made by majority
OF the members appearing 10 be elected
and having prina facia rights to seats.
The point is raised by the statement and
questions submitted that no legal organi-
cations could be formed on January IL,
because no notice OF intended action was
given to the minority or non.attending
members so as to enable them to particle
pate therein. The minority were not ex-
clnded; the organization was made in a
public manner. The minority were at
the time claiming 10 be, and are still claim
ing to be, the lawful Legislature. Its not
presumed that they would have aban-
doned that organization at that time had
notices been given. We do not think
that want OF notice invalidates the orgdni-
zation OF January u.
There may be Irregularities in the man
ner IN which such organization was form
ed, but the voice OF the people Ia not on
that account to be stiiled, nor the true
government. TO fail TO be maintained. No
essential defects any where exist, but only
such departures from ordinary forms as
circumstances compelled. History can
fail ~ ttgNlaSa thn vital fart th ak tho
organizations OF January 18th were form.
ed by full quorums OF persons appearing
by the records and returns as duly
elected members OF either house.
1t cannot be that such q con-
struction must be given 70 the con-
stitution OF the State as will subvert u
plain and obvious intention of its trainers,
or place 1t in the power Of few men to
perpetuate their hold on Offices in the
giit OF people in the defiance OF the will OF
the voters constitutionally expressed and
ascertained because their own neglect OF
duty has made some departure from the
directory provisions and ordinary forms
inevitable.
a legally organized Legislature being
nog in existence and exercising its con-
stitutional functions, 1t follows that no
convention OF members elect OF either
house can exist which can be treated as
nucleus for another organization. Two
governments claiming to be in existence
as voted and entitled to the obedience OF
the people, both cannot rightfully exist at
the same time; but one government oAn
be recognized and obeyed. The RESPONSE
bility and solemn duty arc imposed on US
to determine which Is entitled to judicial
recognition. =,
We therefore, after due deliberalion
and consideration OF all the matters In
yolved, ailirm and declare our judgment TO
be that the Senate whose presiding officer
Is Hon. Jos. A. Locke, and the House oi
Representatives whose presiding officer IS
Hon. Geo. L. Weeks, constitute the legal
and Constitutional Legislature OF the State.
[Slgnedl JSo. ArrLEToN,
CHAs. W. WALTON, .
WA. G. BARRows,
l.........-. CnAs. D4EFoHrn,
j.. JOHN A. PETERS,
ARrEMUs LIBBEY,
JOsEPH W. SYN0SDs,
10 .iibert G. .indrSS and Il. H.'Checrer,
Esgn., Aug,lta, Maine.
DEPRESSED! WELL, WE SHOULD SAY so.
Auopsr4, January .7.-rhe Fusionists
wsre very much depressed at the reception
Of the views Of the Court. Major Smith
said he believed the controversy was now
ended. He said that while tue previous
opinion of the Judges was based on Re-
publican statement there was room for
reasonable doubt, hut in view Of the fact
that the Court had decided against them
ON a Fuslon abatement they could but