Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-09-23

argument. nut as soon ds ~ "oS
that nothing serious had happened Judge
Cullen motioned him to proceed
Shortly before the adjournment TOT
lunch Edgar T. Bracket hesan TO speak
in behalf of the prosecution
Suffers Contention Overruled.
The high court OF Impeachment last
night by a vote OF u to |. overruied
the motion OF the governors counsel 10
dismiss the proceedings on the ground
that ne was unconstitutionaliy impeacheo
by the assembly because that body was
in extra session when the Impeachment
was brought.
Senator Gottfried III. Wende of Bunao,
democrat an ardent supporter OF the gov
ernor east the only vote IN taVor OF the
Sulzer contention.
The governors defeat was the second
that has marked the battle waged by
his attorneys To ann:hi!ate the inlpeaen
r,ent proceedings. Last week the court
thva-ted their attempt to prevent iour
senators from sitting as members.
Last nights vote was taken In secret
session after an afternoon devoteu 10
speeches by the opposing attorneys When
the time came for the court to render
IT'S decision Presiding Judge Cullen an
nounced that he did not feel inclined 10
use the power granted him under tue
rules 10 be the first TO express an opinion.
NV brethren" he said. you will
readily appreciate that the point wnich
has been discussed goes TO the very
foundat on of this proceeding. II oeciueu
IN one way the proceedings must heces-
sar,iy stop. You have the power 10 cit ar
the court for priva'e consu taton' uhuer
the rules"
This was done on motion of Judge
Collin tanother judge. hut the vote was
later announced in "A brief pubic ses-
sion, and the record of the proceedings
Immediately was made public IL showed
that tentative roll call on the motion
was mined atey taken and that the pre-
siding Judge delivered a long opinion on
the points al issue when his name was
called thirteenth on the list.
Judge Cullen's Opinion.
Judge cu'lens opinion. in substance.
was that the provision of the constitution
which Emitted the acts of the legislature
in extra session to such subjects as were
recommended 10 1t BY The governor
should be given a reasonable construc-
ton. 1t upheld the contention OF the
prosecution that the provision referred
to the legislature as a whole and not 10
the assembly as an independent oooy.
$50 construed" said Judge Cullen.
these subjects al relate to what the
legislature. as a body. can do. and not
TO the power vested in one branch OF the
leg stature"
Judge Cullen's opinion. in part. was:
II l. urged by the learned counsel for
80 managers that the assembly has the
inherent right at any time to present
ar ices o impeachment. From that doc
trine j dissent in toto. Ii is true that
Il IL the assembly that has the right
given IL by the constitution to impeach,
but TIE assembly does not con list or the
individual members of its body except
when they are duly assembled. That -
plain elementary parliamentary law. IT
ole no
all bodies
The individual action even OF ma
jority does not constitute the action OF
the body. whatever il may be. unless all
parties have had an opportunity to at
tend and be hea d. Any other rule, 1t
seems to me would cause or might cause
inextricable confusion in the management
of public affairs.
Discusses an Assumption.
IF we assume that any member OF
the assembly may convene that body or
the speaker for the purpose Of impeach-
nent, the body so meeting would have
no power to protect itself.
cit would be scene of disorder. and IL
So before there had been any election of
a speaker one member might convene II
at one spot and one at another. 1t would
lead to anarchy. The extreme that has
been suggested. that governor might
commit treason. while 1t is Theoretical ly
possible TO imagine. II Is quite improb-
able and i think little weight should be
given to II. Anyway. extreme cases do
not control the construction of statutes
or constitutions.
THE constitution gives the assembly
power to impeach Ii was a regular ses-
sion II was a regular session In the
sense that II was regularly convened In
response to a call by the governor. Now.
having the power OF impeachment 1t
could exercise that at any time. unless
we find another provision in the constltu-
ton which retracts II or forb!ds II. That
provision is claimed to be found in the
fourth section of the fourth article of the
constitution. in which ii is said: AT ex-
traordinary sessions no subject shall be
acted upon except such as the governor
may recommend for consideration.
Does that apply to this power Of i'm
parchment? IL is urged, of course. that
this is not an ordinary legislative power
except in the sense that anything that
Is done by the legislature is legislative.
Counsel for the respondent contends that
this includes all business that may be
transacted by either house of any char
acter.
Now, there would be force In that
argument # there were not other facts
that really abrogate the force OF the
arrument and lend to establish a con-
,frary proposition
~eaning of Constitution Trainers.
After giving his Interpretation OF the
meaning the trainers of the constitution
meant TO convey. Judge Cullen concluded:
II think that when II was said that
the governor shall submit business for
consideration to the legislature II was
the governors business that was meant.
and not that of the legislature nor OF
the senate. But II gave the assembly
the right to impeach.
81 therefore am of the opinion that this
right does not come within the limita-
tons OF the Constitution. We must gve
a reasonable construction of II and. so
construed. these subjects all relate to
what the Legislature as body can do
and not to the power vested In one
branch OF the legislature. i vote no."
The tentative roll call was followed by
a viva voce vote and then with a final
roll call. with the same result.
Senator Wende explained his vote In a
brief argument. in which he held that
when the assembly adjourned without
date some weeks before reconvening to
bring the impeachment articles they
+. foreclosed their right TO act upon any
question of Impeachment when called
together In extraordinary session"