PUBLIC DOCUMENTS. 



745 



tatem to administer oaths. la tho organization of 

 both branches of tho Legislature the names of all tho 

 members elect, who appear by the unoorrected returns 

 to be elected, were placed upon a roll and were culled 

 before proceeding to organize the same as heroin lust 

 mentioned. 



Twenty-seven questions, covering the points 

 comprised in the foregoing statement, were sub- 

 mitted to the Court, to which answers were 

 returned as follows (the answer in some in- 

 stances, as given below, embodying the terms 

 of the question, and in others sufficiently indi- 

 cating its nature) : 



An election has been had by the electors of this 

 State. The rights of the several persons voted for 

 depend upon the -votes cast. The result should be 

 truly determined in accordance with the Constitution 

 and laws of the State. It was the duty of tho Gov- 

 ernor and Council thus to declare it. Any declaration 

 of the vote not thus ascertained and declared is unau- 

 thorized and void. 



The Governor and Council examined the returns, 

 and undertook to declare the result as appeared by 

 the returns. Various questions involving the true 

 construction of the Constitution and statutes relating 

 thereto arose, and the Governor, by virtue of his con- 

 stitutional prerogative, called upon this Court for its 

 opinion upon the questions propounded. By the pro- 

 visions or tho Constitution the Court was required to 



expound and construe the provisions of the Constitu- 

 tion and statutes involved. It gave full answers to 

 those questions. The opinion of the Court waa thus 

 obtained in one of the modes provided in the Consti- 

 tution for an authoritative determination of " impor- 

 portant questions of law." The law thus determined 

 is the conclusive guide of the Governor and Council 

 in the performance of their ministerial duties. Any 

 action on their part in determining the vote as it ap- 

 pears by the returns in violation of the provision of 

 the Constitution and laws, thus declared, is a usur- 

 pation of authority, and must be held void. It only 

 remains to apply those principles to the subjects em- 

 braced in the questions propounded. 



The Governor and Council have no right to sum- 

 mon a person to attend and take his seat in tho Senate 

 or House of Representatives who by the returns before 

 them was not voted for, or being voted for was defeat- 

 ed. To summon one for whom no votes had been cast 

 would be a deliberate violation of official duty. To 

 summon those whom the returns show were not elect- 

 ed would be equally such violation. Either would be 

 Intruders without right into a legislative body. The 

 summons thus given would be void as in excess of any 

 powers conferred by the Constitution. Grant this pow- 

 er, and tho right of the people to elect their officers is 

 at an end. 



Holders of summonses which are void, for the rea- 

 son that tho Governor and Council have failed to cor- 

 rectly perform the constitutional obligations resting 

 upon them, have no right to toko a part in the organ- 

 ization, or in any subsequent proceedings of tho House 

 to which they are wrongfully certificated. They are 

 not in fact members ; but the members rightfully elect- 

 ed, as shown by the official returns, and tho opinion 

 of the Court upon the propositions heretofore by the 

 Governor presented to the Court, are entitled to ap- 

 pear and act in tho organisation of tho Houses to which 

 they belong, unless the House and Senate, in judging 

 of the election and qualification of members, shall de- 

 termine to the contrary. 



A member without a summons who appears to claim 

 his seat is prima facie entitled to equal consideration 

 with a member who has a summons. He is not to be 

 deprived of the position belonging to him on account 

 of the dereliction of those whose duty it was to have 

 given him the usual summons. Tho absence of that 

 evidence may be supplied by other evidence of mem- 

 bership. 



The House and Senate have tho same right W con- 

 sider and determine whether in tho first intunoe such 

 persons appear to have been elected, and finally wheth- 

 er they were in fact elected, as they have of any and all 

 the persons who appear for the purpose of composing 

 their respective bodies. Under the facts recited in the 

 statement submitted to us, wo are of the opinion that 

 Lewis Voter and associates first named in question 

 three were not entitled to act, and that Cyrus A. Thom- 

 as and associates lastly named in the question were 

 entitled to act hi the House as members ; and that 

 Daniel \V.. True and those first named in question 

 four were not entitled to act, and that Andrew Hawes 

 and others with him named were entitled to act as 

 members of the Senate. In neither case did the 

 Senate or House itself act upon the question of their 

 membership. Both the Senate and House, " meaning 

 the bodies assembled to be organized as such," were 

 debarred from any action thereon by tho conduct of 

 the presiding Secretary and Clerk. The assumption 

 of such officers that no questions should be entertained 

 relative to tho rights of persons whose names were not 

 upon the rolls furnished by the Secretary of State, 

 but who were claimants of seats, was unwarrantable. 

 The statute of 1869, embodied in the Revised Statutes, 

 chap. 2, sec. 25, can not preclude either the Senate or 

 House from amending and completing the rolls of 

 membership according to the facts. 



Each House has the constitutional right to organize 

 itself. The form provided for aid and convenience in 

 effecting the organization does not confer upon a tem- 

 porarily presiding officer such conclusive power. We 

 nave not failed to carefully consider the act of 1869, 

 chap. 67, incorporated into the Revised Statutes, chap. 

 2, sec. 25, and so for as it declares that " no person 

 shall be allowed to vote or take part hi the organiza- 

 tion of either branch of the Legislature as a member, 

 unless his name appears upon the certified roll of that 

 branch of the Legislature in which he chums to act," 

 we think it clearly repugnant to the Constitution, 

 which declares that each House shall be the judge or 

 the election and qualification of its own members. It 

 aims to control the action of each within it* constitu- 

 tional powers, till after a full organization with a ma- 

 jority determined and fixed by the Governor and Coun- 

 cil. By their action in granting certificates to men 

 not appearing to be elected, or refusing to grant cer- 

 tificates to men clearly elected, they may constitute 

 its 



thus strangling and overthrowing the popular will, as 

 honestly expressed by the ballot. The doctrine of 

 that act gives to the executive department the power 

 to rob the people of the Legislature they have chosen, 

 and force upon them one to servo its own purpose. It 

 poisons the very fountain of legislation, and tends to 

 corrupt the legislative department of the government. 

 It strikes a death-blow at the heart of popular govern- 

 ment, and renders its foundation and great bulwark, 

 tho will of tho people as expressed by the ballot, a 

 farce. Each House has the same power, and is charged 

 with the same duty, to declare the election of its own 

 members, and organize in any legitimate way, as be- 

 fore the passage of that act. 



When the member summoned appears by the re- 

 turns to be elected only because of some error in the 

 name or initial of the candidate not summoned, when 

 such error is correctable by law under the decision of 

 the Court, and the official record states tho name and 

 initials correctly, or when the member summoned ap- 

 pears by the returns to be elected only by rejecting 

 the returns of one town because unsigned by the town 

 clerk, though a duly attested copy of the record of 

 said town is seasonably offered as a substitute, it is 

 the duty of the Governor and Council to hear evidence 

 and determine whether the record or return is correct, 

 and, if they determine the record to be correct, to re- 

 ceive it, or a duly certified copy of it. to correct the 

 return, as is provided in chap. 212 of the acts of 1877. 

 But in such case they are required to determine an 

 issue of fact whether the record or return is correct ; 

 and so far as their action is concerned in determining 



