The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-07-24
Sathre's Opinion
On Extra Session

6athre'S opinion to senator a. -
Bonzer, Jr., holding the house Of rep
resentatives could meet on It's own
: motion as an impeaching body:
"You have requested an opinion
from this office as to whether or not
the house Of representatives in this
state may convene Of its own motion
for the purpose Of impeachment.
THE constitution Is silent on this
point.
sec. So Of the constitution reads as
follows:
"'The senate and house Of repre-
sentatives, jointly, shall be designated
as the legislative assembly Of the
state Of North Dakota
1T Is clear, therefore, that when
ever the term Legislative assembly Is
employed in the constitution, 1t has
reference to both houses Of the legis-
iature. In all matters In which the
legislature has power to act Is such,
it is referred to in the constitution
as the Legislative assembly,
Quotes Constitutional Provision
Art. n Of the constitution deals
with impeachment and removal from
office. Sec. 1914 Of said article reads
as follows:
The house Of representatives shall
have the sole power Of impeachment.
The concurrence Of majority Of all
members elected. shall be necessary to
an impeachment
TT will be observed that Art. II
deals with impeachment and removal
from office and does not deal with
legislation. It should be observed
that here the term house Of repre-
sentatives' Is used rather than the
term Legislative assembly The in
ference to be drawn from the use Of
such language Is that the house Of
representatives may convene Of its
own motion for the purpose Of Inn
parchment. II articles Of impeach-
ment are prepared and filed, the duty
Is then upon the senate to sit Is .
tribunal and try the charges embodied
In the articles Of impeachment.
II am aware that the supreme court
Of the state Of Oklahoma has held in
the case of Simpson v. Hill, IS AIR
706, that the legislature has no In
herent right or authority to convene
itself for impeachment purposes. but
the supreme court Of New York In the
case Of the People v. Hyes, l43 NV
Supp. 325. has taken the opposite view.
quote from the opinion In that case:
Assembly May Impeach
"'The measure Of the power Of our
rulers in the assembly as respects the
governor IS that 1t may iInpeach him.
Once impeached, that function ends.
What time during It's yearly office,
the constitution does not specify. The
assembly is the assembly, whether In
regular or extraordinary session or
whether self convened. It is the sole
impeaching functionary. and In It's
exercise Of power 1t Is beyond the let
or hindrance Of the executive or the
courts. It Is the exclusive and final
Judge Of the occasion or time 1t shall
select to impeach, and Of the acts Of
the governor It may specify as grounds
for impeachment. This great power
is political. History Is replete with
illustrations Of It's use and abuse. It
is reserved to the state for its preser-
walton and the destruction Of its enc
mics and is beyond the control Of
every. court except the court empow.
cred to try the impeached and find
his guilt or innocence
Martin '. Mott, II Wheat. -. l.
Ed 537:
Matter Of ouden. III N Y $40. 81
NE 45l:
People ex rel Broderick ". Morton,
1856 NY 1876. so NE 7el, II Ira 23l, 66
Am. st. Rep. SAT.
"'(0 The argument that the as-
sembly clothed with the power to Inn
peach has no power to convene itself
for such purpose has little to COM
mend it, for 1t is at war with that
Interpretation Of our federal and state
constitution which has made them
equal to al vicissitudes involved in .
century and q third Of national life.
Judge Cooley has stated the rule with
precision:
".Where . general power Is con-
fefred or duty enjoined, every partic-
uar power necessary for the exercise
Of the one Or the performance Of the
other is conferred
"Cooley'S Const. Lin. p. g.;
"Peo. ex rel Mcdonald v. Keeler,
% NY ~,
20 NE 6l5, 81 Am. Rep. -.
1.-THE case Of Poo. ex rel Carter v.
Rice, l35 NY 485, 81 NE o2l, Is Ira
B36, does not aid the contention Of the
relator. Judge Peckham In It says:
The constitution provides for the
assembling Of the legislature on the
first Tuesday IN January In each year.
When 1t adjourns sine die, has not
the session Of the legislature ended?
The term Of office Of It's members may
not have ended, but the Legislative
session has certainly terminated By
IN aAjaalxument without DAY. +,