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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 by the Senate. While matters stood thus, the governor, assuming that such a disagreement existed as empowered him to interfere, sent in his proclamation, declaring the legislature adjourned to a day named, and which was at the very end of the official term of the members. The message created excitement; it does not seem to have been at once acquiesced in, and a protest against the governor's authority was entered upon the journal; but for eleven days in one house and twelve in the other no entries were made upon their journals, and it was unquestionable that practically they had acquiesced in the action of the governor, and adjourned. At the expiration of the twelve days, a portion of the members came together again, and it was claimed by them that the message of the governor was without authority, and the two houses must be considered as having been, in point of law, in session during the intervening period, and that consequently any bills which had before been passed by them and sent to the governor for his approval, and which he had not returned within ten days, Sundays

excepted, had become laws under the constitution. The Supreme Court held that, as the two houses had practically acquiesced in the action of the governor, the session had come to an end, and that the members had no power to reconvene on their own motion, as had been attempted. The case is a very full and valuable one on several points pertaining to legislative proceedings and authority. As to the governor's discretion in calling an extra session and revoking the call, see ante, p. 115, note.

1 In People v. Mahaney, 13 Mich. 481, it was held that the correctness of a decision by one of the houses, that certain persons had been chosen members, could not be inquired into by the courts. In that case a law was assailed as void, on the ground that a portion of the members who voted for it, and without whose votes it would not have had the requisite majority, had been given their seats in the house in defiance of law, and to the exclusion of others who had a majority of legal votes. See the same principle in State v. Jarrett, 17 Md. 309. See also Lamb v. Lynd, 44 Penn. St. 336; Opinion of Justices, 56 N. H. 570.

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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." And," 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

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*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.3 In the leading English case a libellous publication concerning the house was treated as a contempt; 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.5 Where imprisonment

1 Hiss v. Bartlett, 3 Gray, 468. And see Anderson v. Dunn, 6 Wheat. 204.

2 Anderson v. Dunn, 6 Wheat. 204; Burdett v. Abbott, 14 East, 1; Burnham v. Morrissey, 14 Gray, 226; State v. Matthews, 37 N. H. 450. See post, p. 458, note.

3 Anderson v. Dunn, 6 Wheat. 204. And see Gosset v. Howard, 10 Q. B. 451; Stewart v. Blaine, 1 McArthur, 453.

4 Burdett v. Abbott, 14 East, 1.

5 Mr. Potter discusses such a case in his edition of Dwarris on Statutes, c. 18, and Mr. Robinson deals with the case of an arrest for a criminal act, not committed in the presence of the house, in the preface to the sixth volume of his Practice. As to the general right of Parliament to punish for contempt, see Gosset v. Howard, 10 Q. B. 411.

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; Prichard's Case, 1 Lev. 165; 1 Sid. 245; T. Raym. 120.

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Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest. They shall not be subject to any civil process during the session of the legislature, or for fifteen days next before the commencement and after the termination of each session." Const. of Mich. art. 4, § 7. A like exemption from civil process is found in the Constitutions of Kansas, Nebraska, Alabama, Arkansas, California, Missouri, Mississippi, Wisconsin, Indiana, Oregon, and Colorado. Exemption from arrest is not violated by the service of citations or declara

tions in civil cases. Gentry v. Griffith, 27 Tex. 461; Case v. Rorabacker, 15 Mich. 537.

8 The Constitution of Rhode Island provides that "the person of every member of the General Assembly shall be exempt from arrest, and his estate from attachment, in any civil action, during the session of the General Assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void." Art. 4, § 5.

4 Coffin v. Coffin, 4 Mass. 27.

5 On this subject, Cushing on Law and Practice of Parliamentary Assemblies, §§ 546-597, will be consulted with profit.

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; 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.

2 Branham v. Lange, 16 Ind. 497; Marshall v. Harwood, 7 Md. 466. See also parliamentary cases, 5 Gray, 374; 9 Gray, 350; 1 Chandler, 50.

3 In re Falvey, 7 Wis. 630; Burnham v. Morrissey, 14 Gray, 226. But the privilege of a witness to be exempt from a compulsory disclosure of his own criminal conduct is the same when examined by a legislative body or committee as when sworn in court. Emery's Case, 107 Mass. 172. In the Matter of Kilbourn (May, 1876), Chief Justice Carter, of the Supreme Court of the District of Columbia, discharged on habeas corpus a person committed by the House of Representatives for a contempt in refusing to testify; holding that as the refusal was an indictable offence by statute, a trial therefor must be in the courts, and not elsewhere. If this is correct, the necessities of legislation will require a repeal of the statute; for if, in political cases, the question of pun

tion must be left to a jury, few convictions are to be expected, and no wholesome fear of the consequences of a refusal. On questions of conflict between the legislature and the courts in matters of contempt, the great case of Stockdale v. Hansard, 9 Ad. & El. 1, s. c. 3 Per. & Dav. 330, is of the highest interest. See May, Const.

Hist. c. 7.

Spangler v. Jacoby, 14 Ill. 297; Turley v. Logan Co., 17 Ill. 151; Jones v. Hutchinson, 43 Ala. 721; State v. Moffit, 5 Ohio, 358; Miller v. State, 3 Ohio, N. s. 475; Fordyce v. Godman, 20 Ohio, N. s. 1; People v. Supervisors of Chenango, 8 N. Y. 317; People v. Mahaney, 13 Mich. 481; Southwark Bank v. Commonwealth, 2 Penn. St. 446; McCulloch v. State, 11 Ind. 430; Osborn v. Staley, 5 W. Va. 85; s. c. 17 Am. Rep. 28; State v. Platt, 2 S. C. N. s. 150; s. c. 16 Am. Rep. 647; Moody v. State, 48 Ala. 115; Gardner v. The Collector, 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, also Prescott v. Trustees, &c., 19 Ill.

r. Perkins, 94 U. S. Rep. 260. The presumption always is, when the act, as signed and enrolled, does not show the contrary, that it has gone through all necessary formalities; but this presumption may be overthrown by the journals. Berry r. Baltimore, &c. R. R. Co., 41 Md. 446; 8. c. 20 Am. Rep. 69; Green v. Weller, 32 Miss. 650. And see Opinions of Justices, 52 N. H. 622; Hensoldt Petersburg, 63 Ill. 157; Larrison v. Peoria, &c. R. R. Co., 77 I. 12; People v. Commissioners of Highways, 54 N. Y. 276; English v. Oliver, 28 Ark. 317; State v. Swift, 10 Nev. 176. In a few States the ruling is contra. See Sherman v. Story, 30 Cal. 253; People v. Burt, 43 Cal. 560; Louisiana Lottery Co. v. Richoux, 23 La. Ann. 743; s. c. 8 Am. Rep. 602; Blessing v. Galveston, 42 Tex. 641. It has been held that where the constitution requires previous notice of an application for a private act, the courts cannot go behind the act to inquire whether the notice was given. Brodnax v. Groom, 64 N. C. 244. See People v. Hurlbut, 24 Mich. 44; Day v. Stet. son, 8 Me. 365.

1 See cases cited in preceding note;

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2 Miller v. State, 3 Ohio, N. 475; McCulloch v. State, 11 Ind. 424; Supervisors v. People, 25 Ill. 181. But where a statute can only be enacted by a certain majority, e. g. two-thirds, it must affirmatively appear by the printed statute or the act on file that such a vote was had. People v. Commissioners of Highways, 54 N. Y. 276. It seems that, in Illinois, if one claims that a supposed law was never passed, and relies upon the records to show it, he must prove them. Illinois Cent. R. R. Co. v. Wren, 43 Ill. 77; Grob v. Cushman, 45 Ill. 119; Bedard v. Hall, 44 Ill. 91. The court will not act upon the admission of parties that an act was not passed in the constitutional manner. Happel v. Brethauer, 70 Ill. 166.

The Constitution of Alabama, art. 4, § 27, requires the presiding officer of each house, in the presence of the house, to sign them "after the titles have been publicly read immediately before signing, and the fact of signing shall be entered on the journal.” This seems a very imperative require

ment.

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