548 



NEW HAMPSHIRE. 



The matter in controversy was argued on 

 both sides, in writing and orally, before the 

 three justices, on June 7th. On the 8th the 

 court officially communicated its decisions to 

 the Senate and House of Representatives upon 

 the questions which those bodies had respec- 

 tively propounded. The principal and conclud- 

 ing parts of the said documents were as follows : 

 To the Honorable Senate of tfo State of New Hampshire : 



The justices of the Superior Court have been fur- 

 nished with a copy of the preamble and resolution, 

 passed by the Senate on the 3d instant, by which 

 resolution their opinion is required in regard to the 

 "right of James Priest and John Proctor to retain 

 their seats in the Senate " upon the facts stated in 

 the preamble. . . . 



By this action of the Governor and Council, 

 whether it be regarded as within or exceeding their 

 constitutional powers, Messrs, Priest and Proctor 

 received the usual credentials, which authorized 

 them to assemble with the other ten Senators and 

 take the prescribed oaths of office, and they there- 

 upon became Senators, subject to the constitutional 

 authority of the Senate as final judges of the quali- 

 fications and election of its members. 



It further appears that the Senate has proceeded 

 to examine the returns of votes for Senators, and 

 has adjudged that Messrs. Priest and Proctor, hav- 

 ing received a majority of all the votes legally cast 

 and returned in their respective districts, were elect- 

 ed Senators thereof. 



By Article XXXV. of the constitution the Senate 

 are made "final judges of the elections, returns, and 

 qualifi cations ? of their own members, as pointed out 

 in this constitution." We are of the opinion that 

 from the action of the Senators in this respect there 

 was no appeal. By the express terms of the consti- 

 tution the action of the Senate is made final. We 

 are therefore of the opinion that when the Senate 

 adjudged that Messrs. Priest and Proctor were duly 

 elected Senators, their action was final and conclu- 

 sive of the right of said Priest and Proctor to hold 

 their seats as Senators. 



The foregoing opinion is based entirely upon the 

 facts stated in the preamble to the resolution, and 

 upon the assumption that, when the Senate acted as 

 final judges of the qualifications and election of 

 Messrs. Priest and Proctor there was a constitu- 

 tional quorum present. 



W \ L^ S DD NG ' 1'Justices of the Superior 

 ISAAC W. SMITH, ( Court of Judicature. 

 To the House of Representatives : 



The undersigned, justices of the Superior Court, 

 have considered the questions addressed to them by 

 the House of Kepresentatives, by a resolution passed 

 June 3, 1875, whether, upon the facts stated in the 

 preamble to said resolution, the Governor had con- 

 stitutional authority to issue a summons to appear 

 as Senator to either of the persons mentioned as 

 having received votes for that office in Senatorial 

 Districts No. 2 and No. 4. ... 



In the view we take of this question it calls for 

 our opinion upon a past and completed act of the 

 Executive Department of the government, performed 

 in discharge of the duty expressly required of that 

 department by_ a constitution. And in any aspect 

 which the subject presents to our minds such opin- 

 ion, if given, could have no greater weight or author- 

 ity than a criticism of approval or disapproval by 

 one branch of the government upon the conduct of 

 another coordinate branch. We have been unable, 

 after most careful consideration, to discover any way 

 in which such an official act, on the part of the jus- 

 tices of this court, could be made consistent with 

 the grave duties imposed upon them by the consti- 

 tution of the State. 



If a mistake, or even an intentional wrong, should 



be committed by the Executive, the remedies, under 

 our form of government, are ample and prompt the 

 wrong to be suffered temporary. If, on the other 

 hand, a precedent of interference by one department 

 with the discharge of its duties by another should 

 be established by the form of a judicial decision, a 

 dangerous blow would, in our judgment, be struck at 

 one of the most vital principles of our system of 

 government, the consequences of which no one could 

 foretell, but which no intelligent and candid citizen 

 could fail to see must be lasting and pernicious. 



For these reasons, with a full sense of the respon- 

 sibilities under which we act ; we are constrained, 

 most respectfully, to decline giving a further answer 

 to the question contained in the resolution of the 

 House of Kepresentatives, as we understand the 

 purport and effect of that question. 



W ^' T U A S |?A NG> I Justices of the Superior 

 ISAAC W. SMITH, j Oourt of Judicature. 

 June 8, 1875. 



These decisions were read to the two Houses 

 by their presiding officers, respectively. The 

 Republican Senators, who had withdrawn on 

 the first day of the session, acquiesced in the 

 opinion rendered by the court, and at the after- 

 noon sitting of the Senate on June 8th ap- 

 peared in their seats to take part with the 

 other Senators in the business of legislation. 



In the House of Representatives, the opin- 

 ion of the Superior Court, declining to decide 

 the question propounded to it by that body, 

 was acquiesced in so far as the transaction of 

 present legislative business in conjunction with 

 the Senate might be concerned ; but the ma- 

 jority would not recognize the legality of the 

 action taken by the Governor and the Demo- 

 cratic portion of the Senate in the election 

 and seating of Mr. Priest and Mr. Proctor as 

 Senators. 



The House, therefore, after long debates, 

 finally adopted, on June 25th, the following 

 resolutions yeas 174, nays 166 : 



Resolved, That the action of Governor Weston and 

 his Council, in throwing out the return of votes given 

 for Natt Head and Arthur Deeriug^ was unconstitu- 

 tional, without precedent in the history of the State, 

 and contrary to the overwhelming weight of legisla- 

 tive and judicial authority in this country. 



Resolved, That said action of the Executive De- 

 partment constitutes a mischievous and dangerous 

 precedent, that will be fatal to the rights of the elec- 

 tors and of a coordinate Branch of the government 

 unless it shall be condemned by the people at the 

 ballot-box. 



Resolved, That the action of the Senate on the 1st 

 day of June, in perpetuating the arbitrary and un- 

 constitutional action of the Governor and Council, 

 in rejecting the return of votes given for Natt Head 

 and Arthur Deering, and thereupon declaring elec- 

 tions where vacancies existed, was an unconstitu- 

 tional assumption of power, in part expressly con- 

 ferred by the constitution upon the members of the 

 House of Eepresentatives. 



Resolved, That said action of the Senate having 

 been regarded as final, but not justified by the Su- 

 perior Court, the House of Kepresentatives hereby 

 enter their solemn protest against the arbitrary and 

 unconstitutional precedent which it establishes, and 

 confidently appeal to the people to revise and re- 

 verse it at the ballot-box next March. 



On the 9th of June both Houses met in 

 joint convention for the purpose of electing the 



