The Providence news. (Providence [R.I.]) 1891-1906, 1893-07-01
The Republican Side Ably Presented
by Benz \. BosVorth, Esq.
THE GOVERNOR USED DISCRETION.
In AdJourning Assembly aud His Act Can
not be Reviewed by = Coordinate
Branch OF Government-Mr. Brown
Contends Assembly Could Not Adjourn

bly, had been prorogued by the governor
were filed in the Office of the clerk Of the
supreme court.
Benjamin N. Bosworth, Esq. prepared
the brief for Governor Brown aud the
senate and Arthur L. Brown Esq. that
for the Democratic house. Both are long
documents--that Of Mr.. Bosworth illing
thirty-one pages OF printed matter and
that Of Mr.. Brown fourty-four pages.
There is OF course more or less specula-
tion as to when an opinion will be render
cd. 1t is we'll known that Colonel Honey,
who will sail today for England. has
sought to have the rendering OF an
opinion postponed until his return on
August 10, but on tue Republican side
there is a strong feeling tn .t the colonel
need be- in no hurry to return as they
believe the supreme court Will conclude
that it has no jurisdiction in the matter
and will, therefore, give no answer At all
to.the questions propounded.
Mr. Bosworth's Brief
In opening his argu meat in the brief,
Mr.. Bosworth quotes the questions ask
by the house Democrata These quest
tions are:
I. Has the senate tho constitutions power at the
May session TO pass resolution OF adtournment
joined with the house OF representatives la grand
committee, request having been ma 10 70 the sen 70
ns for s ai q
2. In case a resoIutIon OF adjournment TO the
~ foilowins should have been adopted by the SEN
ate befro joining the house OF representatives IN
the purpose OF counting and declaring the votes
cast Tor general officers at the preceiinx gens.al
house OF representative does such state OF things
constitute Disagreement on the subject OF az
power TO adjourn the general assembly under sec
iion Q, article vii. Of the constitution.
be adjourned Dy the governor under the pow or con-
ssrrsd upon him by section Article vil nS 81 sss
IN ,S for ss q ocsr
the preceding April electionf
Was 1t q House Resolutionf
The first form for consideration Is
whether the resolution embodying the
questions was pass d by the house of
representatives. II it WAS. the judges
should answer the questions. but
IL IL was passed by portion OF the mem-
bers OF the house at time when the
general assembly was not In session and
consequently not in legal existence for
the purpose of trapsac ing business. the
judges cannot with propriety give any
written opinion as requested.
Mr.. Bosworth then goes on to state
that OH June I'd the senate passed
resolution certifying the governor of
the fact that u disagreement existed be-
tween the two houses AS To the time and
place Of adjournment Upon receipt of
this resolution from the secretary OF state
the governor issued this proclamation.
adjourning the assembly to the last
tuesday in January 1894, under the pro-
vision II section 6 of article VII. OF the
constitution, which says:
In Of disagreement between the two houses
of e general assembly ersspeesng Pc s m the lime or
may may adjourn , them to such time and place as he
;n" 5nnk r. S Soe e me a. ADJ
the next stated session.
Cannot BE Reviewed.
It was after the assembly had been ad-
iourned by the governor that the resolu.
sed. A request for an opinion. after
legal adjournment OF the two houses, is
not request, in the constitutional sense
of the house Of representatives.
The constitutional power of the COVER
nor TO adjourn the general assembly. in a
certain contingency, Is inquest onel.
That contingency is q disagreement
between the two houses respecting either
the time or place OF Adjournment, cerii-
fed to him by either house. As a cor
diton precedent to the right Of the ex.
ecutive to act, one OF the houses Of the
general assembly must determine that
there is disagreement aud must certify
that fact to him.
Upon receiving such certificate the
governor, by the supreme law, is vested
with discretion to act as to him shall
seem proper. The question of whether
a disagreement exists bet cen the two
houses Is question OF fact and not OF
law. and of the fact either the house GER
tifying Engagement or the executive
is the exclusive aud final Judge.
Upon proper certificate. the question
OF adjournment is addressed exclusively
to the executive Judgment, aud to hold
that either. the judicial or legislative de-
partment can intervene to compel or pre-
vent action by the executive, involves
the absurdity that coordinate depart
ment of government. acting within the
scope OF its exclusive authority, may be
rendered bordinate and its constitu-
tional prerogative destroyed.
The Same Law Applies.
In support OF this contention Mr.. Bos.
worth quotes from Cooley's constitu-
tional limitations
When the constitution EN- powers the executive TO
convene the leg stature OF extraordinary occasions
any any one e ~ determining what is and wnat y
not sucn occasion in the constt ma sense IL Is
obvious that the question Is addressed exclusively
to the executive Judgment, neither the iegssa-
tive nor tue judIcai department can Intervene TO
action, H. In his opinion the proper occasion has
arisen.
Then Q asks why the same law should
not be applicable in case OF adjournment
by the executive. Judge Story also says:
whenever statute gives a discretionary power to
ANY person to be exercised by him upon his own
opinion OF certain facts. IL Is a sound rule OF
struction that the statute constitutes him the sole
and exclusive juuge ~ the existence of those facts
II IL no answer that such power may be abused,
for the q Is no power which Is not susceptible OF
abuse The remedy for this, well a. for all
othef official misconduct IL IL should occur, Il 10
be tounn IN the constitution Itself. In free gov
ernmtnt. he dang n must % remote since In adj
dition 10 the hign qualities the executive must be
presumed To possess, OF pubic virtue ana honest
devotion TO TIE public interest the frequency OF
elections, and the watchiulness OF the representa-
tlves OF the Rovrnmen,, carry with th,m all the
heck which can be nseful to guard against usur-
patton or wanton tyranny.
other Authorities Cited.
Many other aut horities are cited in sup
port OF the same point, among them
that of the Supreme Court of Wis
consin which says 1.-THE duties AMI
powers with which the executive IL in-
vested under the constitution are specified
aud limited. They are political, are
derived directly from the constitution,
and for the most part have relation, not
Il Il -"