The sun. [volume] (New York [N.Y.]) 1833-1916, 1894-02-06
END OF THE SENATE FIGHT.
JUDGE CDUIB TAcATEs mrs INJUNc-
IRON AGAINST CLERK KENYON


m. C,-,. 20 ~. t,onssusioa that ne Hed No
Jurisdioton-Fridsy's Joprp-i Approved
wuAou, Ohi.etiop. els. Clerk Cniiisr the
Nsu. Of Henry woirerr-Lieut-tsov. sbss-
haa Makes - Long stste@ept IN Deienes
or Hi. Coarse n the Contest, ssd De
et.re. that ths.AetIon or the CIerk sud
senator s.xton in CaIiing the Roll Was
/. vioIatiou OF Law sud the Esiei-ses-
stor ssxtor Replies n-d Arfervsrd Intro
dues. /. Resolution to Investigate JudGo
t,.te for Granting the Iniunetion Agsinst
the Cierk-Tbs Greater New Tork Biii
re. H.sn Advanced 90 - Third Reading.
ALBANY, Feb. 5.--The galleries and the floor
OF the Senate Chamber we're crowded o-niGht
with the expectation that the battle over the
unseatinE Of Senator McCarty would DO re-
newed. The audience assembled some time
before half past =, the hour when the
Senate meets Senator McCnrty arrived
early. He did not attempt to take his seat.
but went into the Lieutenant Governors
room. Henry wotert tho contestant to his
seat whom the Republican Scoators seated on
Thursday. came I'm and Occupied the seat OF
tho Senator from tho sixth district and busiod
himself with his, correspondence.
The Injunction which Judge Clute OF Albany
county had granted on Friday morning to re-
strain Clerk Kenyon from calling the name Of
Henry Wolfert was vacated Ivy tho Judge to-
day so that the Clerk was free TO call tho roll
ss he chose. This Injunction brought up n
number OF interesting constitutional ques-
tons. which the LAWYERS OF the Senate have
busted themselves discussing.
Il concerns the power OF n Judge TO enioin
or grant orders in regard 10 tho Legislature
such power is denied by auumber OF Senators
The question has nothiuG-o do with the merits
OF the controversy. but simply concerns the
jurisdiction Of the courts The order was
vacated on the ground that the Court had
not the Jurisdiction which 1t had assumed. and
that. no matter what the rights in the cnse
were. Il was not question for the Court to
Interfere
While waiting for the Scu,ate TO come to
order tho crowd became so dLsorderly that the
Lieutenant G oVernor had to call on tho Ser
geant-at-Arms to restore quiet. The journal
OF Friday was approved without objection. and
then Lieut.. Gov. Sheeban made q statement
which he had prepared on the. McC arty VOL
teit case.
the IrEUrESANr-GpvErNoR's STATEMENT.
After quoting from tho Constitution and tho
rules OF tho Senate defining tho powers and
duties o; the Lieutenant G Governor. and also
quoting the cloture rule recently adopted by
the Senate. he said:
AT ten minutes past IL on the morning OF
Thursday last the resolution of Senator Pound
declaring that Senator McCarty was not on
titled to his seat was read. aIsl debate then be-
gan upon its adoption or rejection. This reso-
luton was under consideration until the hour
OF 3is o'clock in the afternoon. At 81 o'clock
Senator Wolf, who was tho minority member
OF tho Committee on Privileges and Elections.
offered n substitute for tho original resolu-
ton. to the effect that the prayer Of Henry
Woliert for the seat from the Sixth Senatorial
district be denied and that John McCary
he entitled to retain his seat. As soon
as such substitute was road debate
began on its adoption or rejection.
llearly under the ruio above quoted the SEN
ate had the right 10 debate this substitute for
six hours from tho time OF its presentation.
At $40. and while the Clerk reading
to the Senate the testimony In the case.
senator SaXtoa moved to close debate.
The Chair held that under the rule this re-
uuirod unanimous consent. which was refused
The Chair was and IS decidedly OF the
opinion that the Senate was entitled t.
debate the Wolf substitute. which was then
the pending question for the period OF six
hours from the time OF It's introduction. It
was q proposition lust tho reverse OF the one
offered by Senator Pound. II was unlike
an amendment. because tho ADOPTION Of
tho substitute would have killed tho original
proposition. It was separate and Independent
proposition. and was clearly entitled to be de-
bated for the period OF six hours. or. in other
words. until $3.50 o'clock in the evening. The
vote would first have to be taken oil the adop-
tIon or rejection o. that substitute. and clearly
NO motion could he made TO close debate until
Il is claimed that the Chair orred in con-
STRUNG this rule. but alter mature elaboration
Sul after consultation with men well qualified
10 pass upon such aduestion the Chair believes
that this Is the proper construction 81 the
minority when an at,empt is made to stifls or
close Legitimate debate. to insist npon strict
and even a technical construction u. any rule
Afrvr the presiding officer had decided that
st,tnte Tor the period of six hours. Senator
fsXton stated That he aPnsaled from the de;
sision OF the Chair The Chair decided
cause Senator saxton had raised no
question Of order which ie upais;
Elk hours debate on the substitute. il was the
duty Of the Chair to enforce the rule This
Assembly and was always eontended for by
Ary law, unless otherwise prescribed by the
rules that an appeal can only he taken from
the decision 81 the presiding officer on point
or question Of order. Cushing on legislative
assemblies says at page 56n:
ef:"s: %9.Ss' @ ssTan s1I:s specially
ylduAi InsmhsT 70 determine what are Questions o,
herein NO other general Ins can 0s iald do~HtEAn
thai question OF order always Is one WniCh Ahsrts
the present stats of busness otth Assembly, hut the
D. sent eject OF motion as TO lts subsc matter or
its prospective Operatlnn a matter OF order
bu,nsss OF the HOuSe, IL not a question OF order.
Assuming; for the sake OF argument. that
the attempted appeal of Senator SRxton came
within this deanition Of a question OF order
because ~ affected the, then present bust
was not, properly raised. and 1t is not
shAps Of a question or point OF order. II,
however. as Gushing says, the motion had
reference TO prospective operation. as a matter
OF order. on the business OF the House. which
WAS this case under rule 1, giving the right
OF debate beyond tho six hours. 1t was not "a
point or question OF order, and was not APP
DeAlahls-
Suppose. after the original resolution had
been under consideration for three hours.
Senator saxton had moved 10 close debate on
that question and the Chair had held that
under the rules six hours was psrmissi-
BILE. Clearly the Senator would have had
NO right to an appeal and the Chair
would re hagrantly Violating the rules 10
permit an appeal to 10 taken under such cir