Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-01-18

| the opinion on the former
occasion that the Senate could organize with
less than quorum of members, IS Maine, 563,
where less than quorum were elected. il con-
diticn of things that might happen when IT re-
quired majority of votes to elect Senators,
| but the doctrine of that case cannot apply
when quorum is in fact elected.
| Question T-Auswer-Without legal organi-
zatIon formed and legal officers chosen by
seventy-six members present and vot-
| ing iii the House of Representatives., and
| by sixteen members present and voting
| in the Seuate, upon Il given measure, no officer
| can be chosen nor law passed, nor business
done. except to adjourn.
| Question S-Answer-No less than seventy
six members can constitute a quorum OF
| the HouseOf Representatives, nor can less than
sixteen members, now that plurality elects.
constitute quorum of the Senate, nor can either
house, without legal organization formed
and without legal officers chosen, compel the
attendance of absent members. 1t is the House
| or Senate when formed and organized, that has
power to compel such attendance, and 1t Is not
within the power of persons who are persons
elect to do so. Thes attendance Inay
under our constitution be compelled by such
penalties as each house may provide. Until a
| legal organization has been effected there is no
| house to provide penalties for such
purpose. Until legal organization is
completed there is no officer in either house to
| Issue a warra Mt against absent members No
such power was committed OF intended to be
committed into hands of persons not compris-
| ing and acting as an organized body
Question 9-Answer-Not if the attention of
| the House is called to the fact that such per-
sons are illegally summoned and objection is
reasonably made to the counting of such per-
sons for the purpose of making up quorum,
and the House does not act upon the question
of their admissibility. BY the constitution
tart 4, sec. S. the Senate shall, on the first
Wednesday Of January, annually determine
who elected by plurality of votes to be
Senators in each district.
Questions TO- IL and 12-Answer-
These three questions, referring to the
qualifications of members by the adj
ministration OF the required oath,
may be answered together. By the con-
sti.ution the oath is to be taken and subscribed
to in the presence of the governor and conn
Gil. By statute (rev. stat. chap. %, sec. 23)
the clerk of the preceding House shall preside
until the representatlves-elect' shall be quail
fed and elect a speaker, and if no quorum ap-
re4r, be shall preside and representatives-eiect
present shall adjourn from day TO day until a
quorum appear and are qualified and a speaker
Il elected" Thus it will be seen that while
by statute the clerk is to preside until quo
rum shall appear and be qualified. it is not Pro
vlded either in the constitution or statute,
that less number than a quorum shall not be
qualified, nor can yea and nay vote on a mo-
ton to request the attendance of the governor
and council for the purpose of administering
the oath be deemed of any Importance.
If the governor and council had appeared
without motion vote, their authority would
have been the same We therefore answer that
qualifying oaths under the constitution or stat
ate may be administered to members elect of
either branch in any numbers, though a quo
rum must appear, and be qualified before pro-
ceeding to an election of speaker, and if the
whole number Of votes for speaker is less than
\ quorum, and there is nothing on the record
to show that quorum was present and acting,
there would be election.
Question 13-Answer--The governors term
of office, and also that of his council, expired
at midnight following the first Wednesday of
January, 1850 The term of the other officers
mentioned in this question will expire when
their several successors elected, as provided
in the constitution.
Questions a. "a and 25-In answer to the
fourteenth. twenty-fourth and twenty fifth
questions proposed we answer az follows: In
the general provisions of the constitution,
article pine certain oaths or affirmations are
prescribed for persons elected, appointed or
commissioned 10 offices therein mentioned 1t
apDears that those before whom prescribed
oaths were to be administered refused to act,
and that Eow there is an existing governor and
council before HON they can be administered.
The oath is prescribed, the terms are essen
tisl Its binding force depends upon its terms,
not on the magistrate by whom it is admins
tered. If there is no governors council, or be-
ing governors council they refuse 10 ad.
minister the oath to one representative to
all, for there can be refusal to all equally IA
to ono, what is the result? Is anarchy to
triumph? Can the government be destroyed
or its action paralyZed because there is no
governor and council before whom the pre-
scribed oath is to be taken: We think not.
The prescribed oath from the necessity of the
case may be taken before q magistrate autboriz-
ed TO administer Oaths. The members must
be sworn before they can act. 1t is by their
action that 4 governor and council thereafter
is to be elected and the government continued.
1t cannot be presumed that the trainers OF the
constitution had in contem platicr that the
oath had better not be administered at all than
be administered by any other officer than the
one designated there. This is one of the most
reliable tests by which to distinguish direc-
tory from mandatory provision. State Va.
Smith, CT Maine $685.
Question l5-Answer-Our reply to the
fifteenth question Is in the negative; That one
whose only title to the presidency of the
Senate is by virtue of such an election cannot
become the acting governor, because he is not
legal president of the Senate. If of twenty
voting at such choice of president of the Senate
eight did not appear to be elected by the official
returns under the constitution and decision of
the court, and were rot In fact elected, there
was then 10 legal quorum, and there could be
no walls. election of permanent officers, not
the eight had been summoned by
- re governor and council without legal quo
rum: arG with. these eight participating n
the proceedings to the exclusion Of those right
fully elected in their places there could be no
valid election of president of the Senate to
proceed with the organization of the Senate
without first determining and declaring its own
membership. When attention properly
called to the fact that persons were present
and acting without right. and that mem
bers were excluded, the secretary refusing
to entertain q motion for the correction of
the roll, and refusing to allow an appeal from
his ruling, and the Senate taking action, al
though d protest was made, was illegal and
void.
Questions l6 and 17-Answer-Under the
letter of the constitution /. is at least doubt
full whether the president of the Senate is re-
quircd to take new oath, before exercising
the office OF governor when that Office has
been vacant IL the manner specified there
in. The practice since the organization of
the State mas, we believe, been uniform
against requiring such new OATH, and to such
practical Interpretation of the constitution in
the absence of an express provision or mani
fest intention on the contrary, We think effect
should be given to the sixteenth question. We
reply that legally chosen president OF the
Senate may become acting governor without