The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1894-03-13
BEASLEY'S REQUEST,
Wants Service Of Writ in
Quo WarTanto Admitted
by Counsel.
EARLY DECISION WILL FOLLOW
Republican Counsel Consult, but
Refuse to Tell What Agree
ment They Reaehe d.
Arguments of Ex-Judge Stevens,
Gilbert Collins and Thomas
N. McCarter.
spectol to the Jerseu Citv News.

Special to the jersey City Neus.
TRENTON, March Is, 1S94.-The argument
of ex-Judge Stevens yesterday was a great
surprise to the supporters of the Adraln
Senate. They had believed that because the
ex-Judge had been requested by the Gov
ernor to assist the Acknowledgement in the
quo w~aaqanto proceedings, he was on their
side, and would argue for the legality and
constitutionality of the Democratic Senate.
When, therefore,, the Judge, with his cold,
lev logic began to knock the foundation Of
the Democratic position to smitheree US, as
published in TIE JERSEY CITY News yes
ferday, the surprise and chagrin which they
displayed is better imagined than described.
Resuming where the yesterdays dispatches
to THE News ended, Judge Stevens con-
tinued:-
A JUDICIAL QUESTION.
"If it be said that it is necessary to the in
dependence of the legislative body that 1t
should have the right not only to select It's
own officers. but also to adjudicate on the
validity of their election and that therefore
the court has no jurisdiction to pass upon the
question of who is President OF the Senate, L
reply that the question is a judicial question
vested by the Constitution in the judicial
Department of the Government, and not
taken from that department by any con-
stitutional provision.
Suppose, by the Constitution, the Senate
had the right to elect the Judges of the
Supreme Court or the State Treasurer,
would the court be barred from inquiring
whether these officers had been chosen In a
constitutional model Even II the whole
Legislature, of which the Senate is merely a
branch, had been vested with the power to
choose, the manne of their choice would be
open to investigation.
-"I admit that the court cannot pass upon
some kinds of political questions, and if
this were such a question, l admit that the
court could not pass upon It; but 1t Is not.
In a certain sense, all questions which relate
to government, whether they arise under the
Federal or the State Constitution, are
political.
ssThus questions involving the title confer
red upon an officer by an election or appoint.
ment. questions concerning the legailty OF
the acts of municipal boards of other public
bodies or officers, questions concerning the
constitutionality of laws, are political CUES
tons, because they are concerned not SO
much with private right as with the consul
tuition of the body polite, the binding force
of laws. and the acts or title OF its officers.
The court deals with questions like these
every day.
8 the other hand, the case of Luther v.
Borden, which involved the question of
which was the true government in Rhode
Island. during the time of the Dorr rebellion;
the case of Georgia v. Stanton, which tp
volved the status of the State of Georgia
under the Reconstruction acts, and the case
of Jones v. United States, which involved
the inquiry whether the jurisdiction OF the
United States extended over one of the
Guano Islands, are illustrations of a class of
political questions which the court VIII not
undertake to decide in opposition to that OF
the President, to whom, under the distribu-
ton of powers conferred by the Federai
Constitution, the decision properly belongs.
RIGHTS OF INDIVIDUALS.
ST rule in this class of cases is that the
judiciary will follow the lead of the Execur
tive. The rule, even here, is, not that when
the court finds that there is a political cues
ton involved, it will have nothing to do with
the CONTROVERSY. On the contrary, it will
decide the controversy if the conflicting
legal rights of individuals are involved in it,
but in deciding it will adopt that view OF the
political question presented, which the
Executive has adopted.
aIf the court declines to compel the Gov
ernor by its own writs to proceed to do a
plain duty which he neglects or refuses to
do, it refuses to interfere, not on the ground
that the question is political, but on the
ground that, on the theory OF our Const1tu-
ton, the Executive is one of the coordinate
branches of the Government, and is supreme
within his own sphere.
"And SO if the court refuses to compel the
Legislature, or either branch of the Legis-
lature, to legislate on a particular subject. or
in a particular way, or according to a parti-
cular mode of procedure, or even to proceed
merely. it Is because the Legislature Is su-
preme in its own sphere and can no more be
compelled to act against its will or even
against its caprice, than the courts can.
9TH lack Of power to institute a judicial
inquiry into the election of members of the
Legislature, springs from a different cause.
The question of membership is, in its essence,
judicial, but tho Constitution following the
bill Of rights has committed the decision OF
it to the tribunals of the Houses Themselves.
sST f~ao1v ooanado than that the c0urf has
no means of acting directly upon either of
the coordinate branches of the Legislature
and if the court, here, were asked to do
nothing but to make a declaration as to
which Senate was the true Senate, it would
be obliged to decline for that reason.
"But it, by no means, follows that because
the court cannot pass directly upon the
status of the Legislature. or either of its
branches it cannot do SO at all"
sit is the duty of the court to expound
and enforce legislative acts, and, in SO doing,
it must necessarily determine whether what
purport to be law are 80 in fact"
QUESTION OF ELECTION.
Nov, the form in which the question
arises can, of course, make no difference
provided it arises In the regular course Of a
CUSTOMARY legal proceeding. It will hardly
be commended that quo t~caardnto is not such
a proceeding
a quo UdaS,dnto proceeding should be in
Gitut6Q against Gne preSeuC 6OlHpbfOueT anu
Treasurer to GUST them from their offices, on
the ground that the House of Assembly, in
JOINT meeting with the Rogers Senate, had
elected their successors, who had duly
qualified, and that, therefore, the present
Comptroller's and Treasures terms had ex-
Spired, it would not be competent for the
court to inquire whether there had in fact
been a constitutional joint meetingfp
sThis, of course, would depend upon the
question whether the Rogers Senate was in
fact the Senate of New Jersey. Its assertion
that it was, would, in such an inquiry, go
for nothing. But If 1t would be competent to
pass upon the question where it was claimed
that the entire legislative body had acted, a
fortiori, would 10 be competent to pass upon
it where it appeared that only one branch OF
the Legislature had acted, and that the
branch whose title to elect the officer was In
dispute.
1T was originally my intention to have
showna at some length that the writ should go
against both defendants, on the ground that
neither had been duly elected by a body com
petent to elect them. But the argument has
been gone SO fully into by the counsel Of the
respective claimants, that have concluded
that | would better discharge my duty to the
re6ator by simply demonstrating that the
case is one of which 1t was the duty OF the
court to take cognizance.
.sThat a judicial determination Is prefer
able to an appeal to force, will, ! think, pc
undisputed BY everyone who has at heart the
sJF.w,o ord xuolfayo of his Statatu