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* There are certain matters which each house deter- (* 133] mines for itself, and in respect to which its decision is conclusive. It chooses its own officers, except where, by constitution or statute, other provision is made; it determines its own rules of proceeding; it decides upon the election and qualification of its own members. These powers it is obviously proper should rest with the body immediately interested, as essential to enable it to enter upon and proceed with its legislative functions, without liability to interruption and confusion. In determining questions concerning contested seats, the house will exercise judicial power, but generally in accordance with a course of practice which has sprung from precedents in similar cases, and no other authority is at liberty to interfere.

Each house has also the power to punish members for disorderly behavior, and other contempts of its authority, as well as to

requesting a return of the resolution excepted, had become laws under the by the Senate. While matters stood constitution. The Supreme Court thus, the governor, assuming that held that, as the two houses had such a disagreement existed as em- practically acquiesced in the action of powered him to interfere, sent in his the governor, the session had come to proclamation, declaring the legislature an end, and that the members had adjourned to a day named, and which no power to reconvene on their own was at the very end of the official term motion, as had been attempted. The of the members. The message created case is a very full and valuable one on excitement; it does not seem to have several points pertaining to legislative been at once acquiesced in, and a pro- proceedings and authority. As to the test against the governor's authority governor's discretion in calling an was entered upon the journal; but for extra session and revoking the call, eleven days in one house and twelve see ante, p. *115, note. in the other no entries were made i In People r. Mahaney, 13 Mich. upon their journals, and it was un- 481, it was held that the correctness questionable that practically they had of a decision by one of the houses, acquiesced in the action of the gov- that certain persons had been chosen ernor, and adjourned. At the expira- members, could not be inquired into tion of the twelve days, a portion of by the courts. In that case a law was the members came together again, assailed as void, on the ground that a and it was claimed by them that the portion of the members who voted for message of the governor was without it, and without whose votes it would authority, and the two houses must not have had the requisite majority, be considered as having been, in point had been given their seats in the of law, in session during the inter- house in defiance of law, and to the Fening period, and that consequently exclusion of others who had a majority any bills which had before been passed of legal votes. See the same principle by them and sent to the governor for in State v. Jarrett, 17 Md. 309. See his approval, and which he had not also Lamb v. Lynd, 44 Penn. St. 336; returned within ten days, Sundays Opinion of Justices, 56 N. H. 570.

And,“

expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. This power is generally enumerated in the constitution among those which the two houses may exercise, but it need not be specified in that instrument, since it would exist whether expressly conferred or not. It is “ a necessary and incidental power, to enable the house to perform its high functions, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent, and disorderly, or in the habit of using profane, obscene, and abusive language."

independently of parliamentary customs and usages, our legislative houses have the power to protect themselves by the punishment and expulsion of a member;" and the courts cannot inquire into the justice of the decision, or even so much as examine the proceedings to see whether or not the proper opportunity for

defence was furnished.1 (* 134] * Each house may also punish contempts of its authority

by other persons, where they are committed in its presence, or where they tend directly to embarrass or obstruct its legislative proceedings; and it requires for the purpose no express provision of the constitution conferring the authority. It is not very well settled what are the limits to this power; and in the leading case in this country the speaker's warrant for the arrest of the person adjudged guilty of contempt was sustained, though it did not show in what the alleged contempt consisted. In the leading English case a libellous publication concerning the house was treated as a contempt ;4 and punishment has sometimes been inflicted for assaults upon members of the house, not committed in or near the place of sitting, and for the arrest of members in disregard of their constitutional privilege. Where imprisonment

1 Hiss v. Bartlett, 3 Gray, 468. 4 Burdett v. Abbott, 14 East, 1. And see Anderson v. Dunn, 6 Wheat. 6 Mr. Potter discusses such a case 204.

in his edition of Dwarris on Statutes, ? Anderson v. Dunn, 6 Wheat. c. 18, and Mr. Robinson deals with 201; Burdett v. Abbott, 14 East, 1; the case of an arrest for a criminal Burnham v. Morrissey, 14 Gray, 226; act, not committed in the presence of State v. Matthews, 37 N. H. 450. See the house, in the preface to the sixth post, p. *158, note.

volume of his Practice. As to the 3 Anderson v. Dunn, 6 Wheat. 204. general right of Parliament to punish And see Gosset v. Howard, 10 Q. B. for contempt, see Gosset v. Howard, 451; Stewart v. Blaine, 1 McArthur, 10 Q. B. 411. 453.

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is imposed as a punishment, it must terminate with the final adjournment of the house, and if the prisoner be not then discharged by its order, he may be released on habeas corpus.1

By common parliamentary law, the members of the legislature are privileged from arrest on civil process during the session of that body, and for a reasonable time before and after, to enable them to go to and return from the same. By the constitutions of some of the States this privilege has been enlarged, so as to exempt the persons of legislators from any service of civil process, and in others their estates are exempt from attachment for some prescribed period. For any arrest contrary to the parliamentary law or to these provisions, the house of which the person arrested is a member may give summary relief by ordering his discharge, and if the order is not complied with, by punishing the persons concerned in the arrest as for a contempt of its authority. The remedy of the member, however, is not confined to this mode of relief. His privilege is not the privilege of the house merely, but of the people, and is conferred to enable him to discharge the trust confided to him by his constituents;+ and if the house neglect to interfere, the court from which the process issued should set it aside on the facts being represented, and any court or officer having authority to issue writs of habeas corpus may also * inquire into the case, and release the party (* 135] from the unlawful imprisonment.“

Each house must also be allowed to proceed in its own way in

1 Jefferson's Manual, $ 18; Prich- tions in civil cases. Gentry v. Grifard's Case, 1 Lev. 165; 1 Sid. 245; T. fith, 27 Tex. 461; Case v. Rorabacker, Raym. 120.

15 Mich. 537. 3 " Senators and representatives 8 The Constitution of Rhode Island shall, in all cases except treason, fel- provides that " the person of every ony, or breach of the peace, be privi- member of the General Assembly leged from arrest. They shall not be shall be exempt from arrest, and his subject to any civil process during the estate from attachment, in any civil session of the legislature, or for fifteen action, during the session of the Gendays next before the commencement eral Assembly, and two days before and after the termination of each ses- the commencement and two days after sion.". Const. of Mich. art. 4, § 7. the termination thereof, and all proA like exemption from civil process is cess served contrary hereto shall be found in the Constitutions of Kansas, void.” Art. 4, $ 5. Nebraska, Alabama, Arkansas, Cali- 4 Coffin v. Coffin, 4 Mass. 27. fornia, Missouri, Mississippi, Wiscon- 5 On this subject, Cushing on Law - sin, Indiana, Oregon, and Colorado. and Practice of Parliamentary AssemExemption from arrest is not violated blies, $S 546-597, will be consulted by the service of citations or declara- with profit.

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the collection of such information as may seem important to a proper discharge of its functions, and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case.

Such a committee has no authority to sit during a recess of the house which has appointed it, without its permission to that effect; but the house is at liberty to confer such authority if it see fit. A refusal to appear or to testify before such committee, or to produce books or papers, would be a contempt of the house ; 3 but the committee cannot punish for contempts; it can only report the conduct of the offending party to the house for its action. The power of the committee will terminate with the final dissolution of the house appointing it.

Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals that any act did

1 See Tillinghast v. Carr, 4 Mc- ishment for failure to give informaCord, 152.

tion must be left to a jury, few 2 Branham v. Lange, 16 Ind. 497; convictions are to be expected, and no Marshall v. Harwood, 7 Md. 406. See wholesome fear of the consequences of also parliamentary cases, 5 Gray, 374; a refusal. On questions of conflict 9 Gray, 350; 1 Chandler, 50.

between the legislature and the courts 3 In re Falvey, 7 Wis. 630 ; Burn- in matters of contempt, the great case ham v. Morrissey, 14 Gray, 226. But of Stockdale v. Hansard, 9 Ad. & El. the privilege of a witness to be exempt 1, s. c. 3 Per. & Dav. 330, is of the from a compulsory disclosure of his highest interest. See May, Const. own criminal conduct is the same

Hist. c. 7. when examined by a legislative body Spangler v. Jacoby, 14 lll. 297; or committee as when sworn in court. Turley v. Logan Co., 17 III. 151; Jones Emery's Case, 107 Mass. 172. In the v. Hutchinson, 43 Ala. 721; State r. Matter of Kilbourn (May, 1876), Moffit, 5 Ohio, 358; Miller r. State, Chief Justice Carter, of the Supreme 3 Ohio, n. s. 475; Fordyce e. GodCourt of the District of Columbia, man, 20 Ohio, n. s. 1; People 1. Sudischarged on habeas corpus a person pervisors of Chenango, 8 N. Y. 317; committed by the House of Represen. People v. Mahaney, 13 Mich. 481; tatives for a contempt in refusing to Southwark Bank v. Commonwealth, testify; holding that as the refusal 2 Penn. St. 446; McCulloch v. State, was an indictable offence by statute, 11 Ind. 430; Osborn v. Staley, 5 W. a trial therefor must be in the courts, Va. 85; 8. c. 17 Am. Rep. 28; State and not elsewhere. If this is correct, v. Platt, 2 S. C. N. s. 150; s. C. the necessities of legislation will re- 16 Am. Rep. 647; Moody v. State, quire a repeal of the statute; for if, 48 Ala. 115; Gardner v. The Colin political cases, the question of pun- lector, 6 Wall. 499; South Ottawa

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not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of a legislative body; it will not be presumed in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a *constitutional requirement in the passage of legislative (* 136] acts, unless where the constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.2

The law also seeks to cast its protection around legislative sessions, and to shield them against corrupt and improper influences, r. Perkins, 94 U. S. Rep. 260. also Prescott v. Trustees, &c., 19 Ill. The presumption always is, when 324. the act, as signed and enrolled, does 2 Miller v. State, 3 Ohio, n. s. not show the contrary, that it has 475; McCulloch v. State, 11 Ind. 424; gone through all necessary formal- Supervisors r. People, 25 III. 181. ities ; but this presumption may be But where a statute can only be overthrown by the journals. Berry enacted by a certain majority, e. g. r. Baltimore, &c. R. R. Co., 41 Md. two-thirds, it must affirmatively ap416; 8. c. 20 Am. Rep. 69; Green v. pear by the printed statute or the act Weller, 32 Miss. 650. And see Opin- on file that such a vote was had. ions of Justices, 52 N. H. 622; Hen- People v. Commissioners of Highsoldt Petersburg, 63 III. 157; ways, 54 N. Y. 276. It seems that, in Larrison o. Peoria, &c. R. R. Co., Illinois, if one claims that a supposed 77 III. 12; People v. Commissioners law was never passed, and relies upon of Highways, 54 N. Y. 276; English the records to show it, he must prove r. Oliver, 28 Ark. 317; State v. Swift, them. Illinois Cent. R. R. Co. v. 10 Nev. 176. In a few States the Wren, 43 III. 77; Grob v. Cushman, ruling is contra. See Sherman v. 45 Ill. 119; Bedard v. Hall, 44 Ni. 91. Story, 30 Cal. 253; People v. Burt, The court will not act upon the 43 Cal. 560; Louisiana Lottery Co. v. admission of parties that an act was Richoux, 23 La. Ann. 743; s. c. 8 not passed in the constitutional manAm. Rep. 602; Blessing v. Galveston, ner. Happel v. Brethauer, 70 III. 166. 42 Tex. 641. It has been held that The Constitution of Alabama, art. where the constitution requires pre- 4, § 27, requires the presiding officer vious notice of an application for a of each house, in the presence of the private act, the courts cannot go house, to sign them “after the titles behind the act to inquire whether have been publicly read immediately the notice was given. Brodnax v. before signing, and the fact of signGroom, 64 N. C. 244. See People v. ing shall be entered on the journal.” Hurlbut, 24 Mich. 44; Day v. Stet. This seems a very imperative requireson, 8 Me. 365.

ment. 1 See cases cited in preceding note ;

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