The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1894-03-22

that this assumption is not unfounded, as
the process that we are now asked to order
is to be directed against the Senate, that, it
is alleged, is curious.
It seems to be plain that such action can
not be an infringement of the prerogatives
Of the State and in disposing of this part OF
the case, no stress is laid on the fact that
each of these respondents is legally entitled
to hold ex-officlo certain high offices by
virtue of the constitutional laws or the state,
for it seems to be well to place the right OF
the court to authorize the use of the present
procedure on the distinct ground that 1T IS
the appropriate and legal remedy whenever
it shall be made to appear that any person IS
holding himself out as public ofhcer Dy
Senatorial appointment, when in point OF
fact such appointing body has no existence IN
view of the constitutional provisions and
regulations As at present advised, do
not perceive how in any case there can
be any judicial interference with the
action, appointments or proceedings OF the
true Senate of the State unless the same
shall be shown out of harmony with the
Constitutional law We wish it to be un-
derstood that we do not intend to and do
not decide anything further than the case
now before u.s. When by judicial action it
becomes necessary to denmark the constltl-
tional line, which separates the jurisdiction
and powers of the several independent de-
partments of government, each from the
others, we are deeply conscious that IN such
momentous matters we should be always on
our guard, and that our Judgment with re-
spect to that should be invariably in the
concrete, for experience has demon
strated that theorizing and specula-
tion on such matters are dangerous
in the extreme, and which invention gem
orally returns to plague the inventor.
LEGAL ASPECT OF THE CASE.
Having thus disposed of the preliminary
question involved, of the jurisdiction Of this
court, it becomes necessary to proceed to an
examination of the legal aspect of the case
as presented in the issue upon the record.
That an issue has been framed in this way,
in order to expedite the determination of the
case, the counsel agree-that if cognizance
should be taken by the court of this contro-
versy, it should be assured that an lnforma-
tion had been filed, and that each of the con-
tending parties had interposed his answer
stating the facts which appeared in the evil
dence, and which are not in dispute, by force
of which he seeks to vindicate his title, and
that reciprocal demurrers are to be put in,
thus exhibiting to the court the htigated
point to be determined. The facts claimed
in the answers alluded to are somewhat vol
luminous, and will be found in the statement
of this opinion. Upon looking into the pre-
sentation of the facts thus indicated, it will
be apparent that the Senatorial ground of
controversy between these rival organiza-
tions is with respect to the right of the
Adrain Senate, or what is called the hold
over Senate, to dominate on the occasion of
the introduction of the newly-elected mem
bers into the Senate.
The Senate, in the very able and carefully
considered briefs of the Attorney General
and his associates, contend that this continu-
ance is called to exist on the ground that, by
Cff
of the State, the State Senate is a continu-
GUS body, that is that it has perpetual life,
and that consequently member elected to
one of its seats cannot enter it until his title
has been passed upon by this ever-existing
body. 1t is not, and cannot be pretended
that this doctrine has had its root
and distinct expression in the Constitution,
and it, therefore, is admittedly the creature
Of construction. :
PERTINENT CONSTITUTIONAL PROVISIONS.
The only provisions of the Constitution
pertinent to this subject are the following =
Article 4, section /, revised, that the legis
lative power shall be vested in Senate and
General Assembly, and in paragraph OF the
same section, it is provided that members OF
the Senate and General Assembly shall be
elected yearly and every year, en- the first
Tuesday of the first Monday of November,
and the two Houses shall meet separately on
the second Tuesday of January next, after
the said day of election, at which time OF
meeting the Legislative year shall commence.
The second section provides that the Senate
shall be comprised of one Senator from each
county of the State elected by the legal
voters of the county respectively for three
years By the second paragraph of Section
2 of Article 4, it is provided that as soon as
the Senate shall meet after the first election
to be held in pursuance OF this Constitution,
they shall be divided as quickly as may be
into three classes; the seats of the Senators
of the first class shall be vacated at the ex-
piration of the first year, OF the second class
at the expiration of the second year, and of
the third class at the expiration of the third
year, SO that one class may be elected every
year. It is apparent that these citations
fully Justify the remark Just made that the
Constitution does not attempt to define the
life of the Senate; yet Notwithstanding its
silence the Attorney General and the coun-
sci of President Adrain raised the conten-
tion that the Senate like the Senate of the
United States has a continuous existence;
that there can be no such thing as an old
Senate and a new Senate, and that
there has been an unbroken continuity of
existence of this body from its birth till this
hour, and as a corollary of this doctrine, it
is further insisted that such sustaining body
is the sole judge of the right of the newly
elected Senators when they apply for ad-
such occasion proceed or reject them at its
will.
In the application of this theory to this
case, it is claimed that the body presided
over by Adrain had the right to require
that the Senators elect should be placed be-
fore it to be ordained, and to be adjudicated
upon at such times, and in such mode as its
self might be deemed proper. If the State
Senate has the inherent vitality thus as
sociated, it seems to be undenjable that it had
the power to act on the occasion that has
given rise to this litigation, for by the plain
language of the Constitution itself, it is de-
clared that each House shall be the proper
Judge of the elections, returns and qualifica-
tions of its members
QUESTION OF PERPETUITY.
It will be perceived therefore that the
question now to be considered and decided
by this court is, has the Senate of this State
the perpetuity thus claimed. The first and
most elaborate argument pressed with earnest
ness and force upon the attention of the court
by the learned Attorney General and his as
sociate, Mr. McDermott, was grounded al
most entirely upon the fact that the clause
In the Constitution of the State that gives
the members of the Senate continuity OF
life by succession of members in such a
way that provides for a continual form of
q body was transcript of a small provis-
ion in the Federal Constitution, and it was
thereupon further insisted that the
language of the regulation, SO adopted, had,
berore its adoption, a settled meaning denot-
lug the permanent existence OF the body
regulated by it. If we were to as
ment in all its parts no one could doubt
Az, <l 700 c<,,.i,,r fa,oSod ,1pnn II would he