The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1894-02-01
IT is QUO WARRANTO
Text of the Attorney-Gen-
erals Last Opinion on
the Senatorial
Middle.
THE COURT HAS JURISDICTION.
Proceedings Will Be Greatly De-
layed BY the Republicans
Refusal to be Served.
WHAT GOV. WERTS SAYS he WILL Do

eslsa
Governor Werts took night off yesterday
and sought relaxation from the cares OF
state at the comfortable house of the Carteret
Club on Bergen avenue. When he reached
his home later in the evening he found await
ing him bulky package from the Attorney
General, which contained an opinion of the
quo tod,Yanto proceedings When the At
torney General submitted the memoranda of
various modes by which the Senatorial mud
die could be brought into the courts, the
Governor requested him to prepare a formal
opinion upon the advisability of instituting
the quo ,cayrunto proceedings The opinion
received this morning was in compliance with
that request.
After reading the opinion, the Governor
dictated this
"While I will probably for the time being
concur in the suggestions of the Attorney
General as to the advisibility of the immedi-
ate institution of the quo tearranto proceed
ings, I shall unless the question as to which
is the constitutional Senate is soon brough bit
before the court in soma other way, insist
that the proceedings by quo tcarranto be in
stitutedn
THE ATToRNEY-GENERALs OPINION.
The following opinion of the Attorney
General was submitted to Governor Werts
to-day:
TRENTON, N. j., Jan. 90, 1894.
Hon. George T. Wegts, Governor.
have no doubt of the jurisdiction of the
Supreme Court in a case where there are two
conflicting legislatures, each claiming right
to exercise legislative functions, to determine
by which body legislative authority can be
lawfully exercised. In the case of Prince vs.
Skillin, IL Maine 367. tine Supreme Court
of Maine said: when different bodies
of men, each claiming to be and to
exercise the functions of the legislative de-
partment of the State appear. each asserting
their titles TO be regarded as the law-givers
for the people, it is the obvious duty of the
judicial department, who must inevitably,
ut no distant day, be called to pass upon the
validity of the laws that may be enacted by
the respective claimants to legislative au-
thority to inquire and ascertain for them
selves, with or without questions pre-
sented by the claimants, which of those
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
will recognize as laws of binding force, whose
leyies of taxes it will enforce when brought
judicially before it, whose choice of prose
cutting officer before the court it will respect.
In thousand ways, it becomes essential
that the court should forthwith ascertain
and take judicial cognizance of the question:
which is the true Legislaturew
THE COURTS MUST DECIDE.
McCrary says, where there are two bodies
each claiming to be the Legislature, then the
courts, whose duty it is to respect and exc
cute the acts of such Legislature, must, of
necessity, decide which is the Legislature.
McCrary, page S96.
In the case of Attorney General VS.. Bar
stow to be found in Fourth Wisconsin. page
ha1d fhof ftfho off of
in this State is a civil Office, and an unlawful
intrusion into or usurpation of the same can
be tried in this court by information in the
nature of quo aCGa7dnto, and the intruder or
usurper be ousted and punished 1t was held
that although the court had no power to inter
fere with the functions of the executive de-
partment. yet it had jurisdiction of the citi-
zens of the State to prevent them from
usurping the offices and franchises of the
State 1t has been said that there are three
departments of the government; this may be
true, but there are not three governments
nor three parts of the government
deriving power from separate sources;
they all derive power from the same
source When the executive department
acts the whole Government and not part OF
it operates through that department. The
State with all its sovereign power is in mo-
ton. just SO with the Legislature and judi
cial departments.
Though the executive power is vested in
the Governor, it is not vested in any indi-
vidual who may by accident, mistake or
fraud obtain possession of the Office"
1t Is undoubtedly true that for failure to
organize a supreme legislature there is no
remedy which courts of Justice can admin
ister, and this fact makes it all the more i'm
portant that the rules which have been es-
tabliShed to prevent such failure and avoid
the anarchy, confusion and possible blood
shed which might ensue, should be adhered
TO-" McCrary, Sec. 593.
RULE TO BE FOLLOWED.
This high authority also lays down the
hered to, thus
I'm case of a division of legislative body,
that ought to be unit, it becomes impor-
tant to determine which Is the legal and
which the illegal Assembly. In such case
the true test is this:-That IS the legal or
ganization which has maintained the regu-
lar forms of organization, according to the
laws and usages of the body, or, in the abb
sence of these, according to the laws, Gus
toms and usages of similar bodies in like
cases, or in analogy to Them This rule af-
fords the best possible test OF legitimate or
ganization.
SIN all cases where part of a legislative
body remains, aud where the body is to be
completed by the reception of new members,
the old members who hold over remain as an
organized nucleus, which receives the new
members, when the whole body proceeds to
the exercise OF all its functions. The new
members, though they be in the majority,
mnst meet with the old at the
ilne and place fixed by law, and proceed
regularly with the organization of the body,
md they cannot assemble elsewhere and
organize the body. They must join them
,eives to the existing body, for the members
holding over, though they may be in the
minority and not sufficiently numerous to
constitute a quorum, are yet the body for
The purpose of receiving the new members
Ind acting as the organs of reorganizing the
pody.n McCrary, sec 592.
A POSITIVE RULE.
know Of no authority on which the rule,
Is laid down by Gushing and McCrary, in
he case where the body is SO constituted
HAT there are always hold-over members
san be disputed. The debates that took place
b the convention that framed the Consti-
mtion of the United States, in the conven-
lions of the States to which it was
mbmitted for approval, the declara-
ions of the United States Senate
~ ifs abIest constitutional lawyers, the de-
,ates in the convention which framed the
constitution of New Jersey, all support the
hle at laid down by the commentators, too
lrmIy to be shaken by the opinions OF parti-
ans +, q time of popular excitement.
The contiuuity of the Senate of New Jer-
az and Of the Senate Of the United States
|oes not depend upon the opinions OF any