746 



PUBLIC DOCUMENTS. 



that fact, we think their determination is conclusive, 

 subject, of course, to be reversed by the House. If, 

 however, they should refuse to hear evidence and de- 

 termine the Question, and should by reason of such 

 refusal issue trie summons to the candidate not elected, 

 the case would fall under the rule above stated. 



If objection was made to the admissibility of the 

 illegally summoned persons as set forth in the state- 

 ment presented to us, and the Houses took no action 

 thereon, then an organization of House or Senate with 

 less than a quorum would be illegal and void. The 

 Court expressed the opinion on a former occasion that 

 the Senate could organize with less than a quorum of 

 members (35 Maine, 563) where less than a quorum 

 were elected a condition of things that might happen 

 when it required a majority of votes to elect Senators. 

 That decision met the necessities of that occasion, but 

 the doctrine of that case can not apply when a quorum 

 is in fact elected. 



Without a legal organization formed and legal offi- 

 cers chosen by seventy-six members present and vot- 

 ing in the House of Representatives, and by sixteen 

 members present and voting in the Senate, upon the 

 given measure, no officers can be chosen or law passed, 

 nor business done, except to adjourn. No less than 

 seventy-six members can constitute a quorum of the 

 House of Representatives, nor can less than sixteen 

 members, now that a plurality elects, constitute a quo- 

 rum of the Senate. Nor can either House, without a 

 legal organization formed and without legal officers 

 chosen, compel the attendance of absent members. It 

 ia the House or Senate, when formed and organized, 

 that has the power to compel such attendance, and it 

 ia not within the power of persons who are merely 

 members elect to do so. 



Attendance of members may, under our Constitu- 

 tion, be compelled by such penalties as each House may 

 provide. Until a legal organization has been effected., 

 there is no House to provide penalties for such pur- 

 pose : until a legal organization is completed, there is 

 no officer in either House to issue a warrant against the 

 absent members. No such power was committed or 

 intended to be committed into the hands of persons 

 not composing and acting as an organized and com- 

 pleted House. It has frequently happened in our his- 

 tory, that legislative bodies have been delayed days, 

 and sometimes weeks, without being able to complete 

 an organization for the want of a quorum. 



The vote of no person can be counted to make up a 

 legal quorum who, though summoned, does not appear 

 to be elected by the official returns under the Constitu- 

 tion and the decision of the Court^ if the attention of 

 the House is called to the fact that such persons are 

 illegally summoned, and objection is seasonably made 

 to the counting of such persons for the purpose of 

 making up a quorum, and the House does not act upon 

 the question of their admissibility. By the Constitu- 

 tion, Art. IV., sec. 5, " the Senate shall, on the first 

 Wednesday of January annually, determine who are 

 elected by a plurality of votes to be Senators in each 

 district." 



By the Constitution, the oath is to be taken and sub- 

 scribed in the presence of the Governor and Council. 

 By the statute (Eevised Statutes, chap. 2, section 23) 

 the Clerk of the preceding House shall preside until 

 the representatives elect " shall be qualified and elect 

 a Speaker ; and if no quorum appear, he shall preside, 

 and the representatives elect present shall adjourn 

 from day to day until a quorum appears and are quali- 

 fied, and a Speaker is elected." Thus it will be seen 

 that while by the statute the Clerk is to preside until 

 a quorum shall appear and be qualified, it is not pro- 

 vided, either in the Constitution or the statute, that a 

 less number than a quorum shall not be qualified, nor 

 can the yea and nay vote on the motion to request the 

 attendance of the Governor and Council for the pur- 

 pose of administering the oath be deemed of any im- 

 portance. If the Governor and Council had appeared 

 without a motion or a vote, their authority would have 

 been the same. The qualifying oaths under the Con- 

 stitution or statute may be administered to the mem- 



bers elect of either branch, in any numbers, though a 

 quorum must appear and be qualified before proceed- 

 ing to an election of Speaker : and if the whole num- 

 ber of votes for Speaker is less than a quorum, and 

 there is nothing upon the record to show that a quo- 

 rum was present and acting, there would be no elec- 

 tion. 



In the general provisions of the Constitution, Art. 

 IX., certain oaths or affirmations are prescribed for 

 persons elected, appointed, or commissioned to the 

 offices therein mentioned. It appears that those before 

 whom the prescribed oaths were to be administered 

 refused to act, and that now there is no existing Gov- 

 ernor and Council before whom they can be adminis- 

 tered. The oath is prescribed. The terms are the 

 essential. Its binding force depends upon its terms, 

 not on the magistrate by whom it is administered. If 

 there is no Governor and Council, or, there being a 

 Governor and Council, they refuse to administer the 

 oath to one representative or to all (for there can be a 

 refusal to all equally as to one), what is the result ? 

 Is anarchy to triumph ? Can the government be de- 

 stroyed, or its action paralyzed, because there is no 

 Governor and Council before whom the prescribed 

 oath is to be taken ? We think not. The prescribed 

 oath, from the necessity of the case ; may be taken be- 

 fore a magistrate authorized to administer oaths. The 

 members must be sworn before they can act It is by 

 their action that a Governor and Council thereafter are 

 to be elected and the government continued. It can 

 not be presumed that the framers of the Constitution 

 had in contemplation that the oath had better not bo 

 administered at all than administered by any other 

 officer than the one designated therein. This is one 

 of the most reliable tests by which to distinguish a 

 directory from a mandatory provision (State m. Smith, 

 67 Maine, 328). 



One whose only title to the Presidency of the Sen- 

 ate is by virtue of an election at which twenty votes 

 only are cast for and against him, and those twenty 

 votes are made up as described, can not become the 

 acting Governor, because he is not a legal President of 

 the Senate. If, of the twenty voting at such choice of 

 President of the Senate, eight did not appear to b 

 elected by the official returns under the Constitution 

 and the decision of the Court, and were not in fact 

 elected, there was then no legal quorum, and could be 

 no valid election of permanent officers, notwithstand- 

 ing the eight had been summoned by the Governor 

 and Council. Without a legal quorum, and with these 

 eight participating in the proceedings, to the exclusion 

 of those rightfully elected in their places, there could 

 be no valid election of President of the Senate. To 

 proceed with the organization of the Senate without 

 first determining and declaring its own membership, 

 when attention was properly called to the fact that per- 

 sons were present and acting without right, and that 

 members were excluded, the Secretary refusing to en- 

 tertain a motion for the correction of tne roll and refus- 

 ing to allow an appeal from his ruling, and the Senate 

 taking no action although protest was made, was illegal 

 and void. 



Under the letter of the Constitution, it is at least 

 doubtful whether the President of the Senate is re- 

 quired to take a new oath before exorcising the office 

 of Governor, when that office has become vacant in 

 the manner specified therein. The practice since the 

 organization of the State has, we believe, been uniform 

 against requiring such new oaths, and to such practi- 

 cal interpretations of the Constitution, in the absence 

 of express provisions or manifest intention to the con- 

 trary, we think effect should be given. A legally 

 chosen President of the Senate may become acting 

 Governor without the administration of any other 

 qualifying oath than that which he has taken in hi* 

 office of Senator. 



It appears from the statement of facts that the mem- 

 bers from the five cities of Portland, Lewiston, Eock- 

 land, Bath, and Saco were duly elected, as well as by the 

 returns before the Governor and Council ; that by law 

 a summons should of right have been issued to them ; 



