49 Ala. 57 | Ala. | 1873
Lead Opinion
— This important case has been pressed upon the court at the very heel of the term, while much other necessary business remained to be disposed of, before the final adjournment. Less than forty-eight hours remained to us, after the record and briefs, and arguments of the counsel, came to our hands. This time has mainly been employed in examining the case. The record, the facts settled and agreed upon by the parties, with the arguments 'of counsel, to enable us to
1. Every officer who, by the Constitution or laws of the State, is required to be elected by the people, derives his right to the office by his election; and the evidence of his election, in the first place, usually is the certificate of the proper officer ; or, if he is an officer who, by the Constitution or laws, is required to be commissioned by the governor, then his commis- - sion is the evidence. This evidence, the certificate or commission, is not conclusive, but primé facie evidence only, which may be overcome or destroyed by better evidence, to wit, by the judgment of a competent court, if he is an executive or judicial officer ; if a legislative officer, — a senator, or representative of the General Assembly, — then, such better evidence is the determination of the legislative body of which he claims to be a member, to wit, the Senate, or House of Representatives, declaring him to be, or not to be, a member of said body. Each house of the General Assembly is, by the Constitution, made the sole judge of the qualifications, elections, and returns of its own members. Art. IY. § 6. When, therefore, either house declares that a certain person is a member of its body,, that is final and conclusive, and no court can go behind it.
The Senate and House.of Representatives, each, since their organization under the proposal of the Attorney General of the United States, made for that purpose, has declared, that certain persons who had no certificates of election were elected by the people ; and certain other persons who had certificates of election were not elected by the people; and the first named’ persons have been declared and recognized as members of the respective houses. This is conclusive upon us, and we have no power to review or revise what has thus been done. These persons, if elected by the qualified electors, were members of the General Assembly, from the day of their election; and, being members, then, the two bodies, who convened and organized at the court-house in Montgomery, had a majority in both houses; and having such majority, when recognized by the governor;'were a constitutional General Assembly, and were competent to do any act, as a General Assembly, except such acts as can only be done by a majority of two thirds of the members of each house. They could elect a public printer, or a senator to the Congress of the United States.
I do not regard it necessary that the General Assembly should convene and organize in the capitol building; neither the Constitution, nor any law of the State, requires this. They
2. The statement of facts in this case, settled and agreed upon by the parties, shows that on the 10th day of December, 1872, the bodies that convened and organized at the courthouse in Montgomery, claiming to be the General Assembly, were recognized by the governor as the General Assembly of the State of Alabama, and elected Arthur Bingham, the public printer of the State. We hold that, notwithstanding the peculiar circumstances attending the meeting and organization of said bodies, and their recognition by the governor, said election was not void, but valid; and that, as said Bingham has given his official bond, which was approved of by the governor, and has received a commission as public printer, &c., he is to be regarded as the public printer of the State, and entitled to all the privileges and emoluments of said office, and authorized to discharge the duties of the same ; consequently, the decision of the City Court, denying the writ of mandamus, prayed for by petitioner in his petition, is free from error, and must be affirmed at petitioner’s cost. ■
Concurrence Opinion
— I concur not only in the reasoning, but also in the conclusions of the opinion of the Chief Justice, which has just been read in this case. The state printer is an officer elected by the General Assembly, at the time appointed by law. That time had arrived when the election'of Mr. Bingham was made in this case. After the election of the state printer by the General Assembly, he is required to give bond, as prescribed by the statute, and to take the constitutional oath of office. Rev. Code, §§ 123, 126, 127; Const, of Ala. 1867, Art. XY. § 1. When this is done, he becomes one of the executive officers of the State. And although he is not one of those officers specially required to be commissioned by the governor, yet the governor alone can approve his bond. And if, as evidence of this approval, and of the proper qualification of the officer so appointed to discharge the functions of- his office, he is commissioned by the governor, this court cannot say that such commission has been inadvertently issued, and step in and aid the Chief Executive of the State in the manner of performing his duties, or perform them for him. Rev. Code, §§ 126, 148. We must presume that the governor knows his own duties, and how to perform them ; and that he would not approve the bond, and commission any person as state printer, without the
If I had much greater doubt about the regularity of the organization of the legislative body that elected Arthur Bingham state printer, on the 10th day of Dedember last, than I do, I would still feel a very grave reluctance to declare such election void. The constituent elements of the same body are still acting in the capacity of the General Assembly of this State, and they have not, and do not, repudiate the election thus made. It is their affair. If they are content with it, they have the power and the right to be so content. In this matter, they alone speak the sovereign will; and in this they must be followed by the courts. No judgment of this court, or any other, so long as they act within their constitutional limits, can reverse or interfere with their decisions. In such a matter, they are, a law unto themselves. They are the sole judges of the thing to be done, and the manner in which it should be done. Their action, however irregular it may be when compared with -former usage, is the law with them, and it is equally the law of this court. Until they choose to change their action, it must be final with this tribunal. Courts cannot regulate legislatures, but legislatures can regulate courts. It is the duty of the courts, so far as they can, to find out the legislative will,- and to follow it in their judgments. Guided by this maxim, I can do no more than to concur with the venerable Chief Justice of
The legislative body may make mistakes. They may do wrong. They may commit what the over-fastidious may pronounce serious blunders. They are but men, and humanity is never, in a legislative sense, infallible, But this court can only interfere to control their mistakes, should such mistakes occur, when they involve a disregard of some constitutional restraint, or limitation of their powers, in the enactment of a law. Beyond this, courts cannot go. Non nostrum est tantas oomponere lites. See Challefoux et al. v. Ducharme et al. 4 Wis. 554; Kottam et al. v. Ayer, 3 Strob. 92; Drake, ex rel. v. Mahaney, 13 Mich. 481; The State v. Johnson, 17 Ark. 407; Marbury v. Madison, 1 Cranch, 187; and Luther v. Borden, 7 How. U. S. R. 1 et seq.
The judgment of the court below,is free from error, and should be affirmed.
Dissenting Opinion
(dissenting.) — I concur with the Chief Justice in the following propositions: 1. That it is not indispensable to the organization and existence of the General Assembly that it shorild meet in the capitol, or be presided over in the_ Senate by the lieutenant-governor, and in the House of Representatives by the speaker, or be recognized by the governor. 2. That the members thereof derive their authority to act, as such, from their election by the people, and not otherwise. But I maintain that there are cases in which there is no General Assembly, notwithstanding a majority of each house may meet at a time and place appointed by law, and organize and assume to be the General Assembly, and that the present is such a case.
We know now who are entitled as members thereof to compose the General Assembly, because it has been ascertained by an undoubted General Assembly. It appears from the finding that the prior assemblage at the capitol lacked the indispensable requisite of a General Assembly, to wit, a majority of the members of each house. This' was the only defect of that assemblage, either in form or substance. But it is vital, and fatal to its claim to be the General Assembly. The assemblage at the United States Court-room, lacking every mere form in its organization, had, as has-been subsequently ascertained, a majority of the duly elected members of each house. In refusing to attend at the capitol, and in organizing at another place, its members staked their defence upon the truth of their claim to be a majority of each house; The result of a proper investigation vindicated this claim, and prevented the other body from constituting the General Assembly. Necessity is a
Appeal was made by each claimant to the President of the United States for recognition. One body was meditating the impeachment of the governor for refusing to recognize it, and both were proceeding to declare vacant the seats of members who belonged to the other. Nothing but force could have decided the dispute, if it had not been for the intervention of the President through the United States Attorney General. In obedience to his suggestion, the House of Representatives readily organized, and awaited the organization of the Senate, which was effected some time afterwards. The most important of the contested seats have been determined in this new organization, by the whole number of members undoubtedly , entitled to seats, and others are awaiting its action. Notwithstanding this inquest determined that the court-house assemblage had a majority of each house, I insist it was not the General Assembly.
A legislature, to be such, must, of course, have all the powers which it may exercise. Some of the powers require to be exercised by two thirds of each house. Can a bare majority, in favor of such exercise in a particular instance, expel the minority opposed, or refuse to let them meet with them ? May the majority, wherever congregated in the city of Montgomery, assume on the instant to be the legislature, and pass a law? These extreme cases suggest the right, both of the minority and of the people, to have their voice in the passage of the laws, or the performance of other duties by the legislature. The rule I deduce for determining the right of the majority to hold a session of the legislature, and the right of the minority to be present, without which the majority cannot legislate, is this : The minority must be absent, either necessarily or wilfully, without fault on the part of the majority, to enable the latter to hold such, session. If they are sick, or unable from any cause to come, or if they are refractory, and will not come, the majority may proceed without them. But if their absence proceeds from a reasonable belief that the body claiming their attendance has no right to do so, their objections ought to be removed through conference with them, or they should be placed in fault by such attempt, so that they may be brought in by compulsion. When a large number are absent, their attendance ought to be compelled ; because the people have a right to the influence they may exert, and also to have all doubts about the validity of the legislature removed.
The Convention Parliament, which restored Charles II., met without the summons of the king; and the first thing done after the king’s return was to pass an act declaring it to be a good parliament, notwithstanding the defect of the king’s writs. Blackstone says the meeting was for the necessity of the thing, which supersedes all law; for if they had not §o met, it was morally impossible that the kingdom should have been settled in peace. So, at the time of the Revolution in 1688, the Lords and Commons, by their own authority, met in a convention, and disposed of the crown and kingdom. This assembling was upon a like principle of necessity as at the Restoration,— that is, upon a full conviction that King James II. had abdicated the government, and that the throne was thereby vacant, which supposition of the individual members was 'confirmed by their concurrent resolution when they actually came together. The Convention was declared to be really the two Houses of Parliament, notwithstanding the want of writs, or other defects of form, by statute. 1 Wm, & M. St. 1 ch. 1; 1 Blackstone’s Com. m.. p. 151, 152.
In the People v. Hatch (33 Ill. 9), a portion of the members of the legislature came together, and assumed to act as the legislature, after it had been adjourned by the governor, under a misapprehension of a disagreement between. the two houses about adjournment. The members had been disconcerted by the prorogation, and for twelve days had taken no action. This was considered an acquiescence in the action of the governor, and the subsequent assembling was declared by the court not to have been a meeting of the legislature. In that case, every ingredient of validity seems to have existed : a meeting at a time and place appointed by law; no dispute as to membership ; a session begun, and not actually terminated ; an admitted mistake of the governor in proroguing the body ; disconcertion of the-members, rather than acquiescence.
How easy will it be, when the parties into which the members. may be divided are nearly equal, for a sufficient number of seats to be contested, to raise genuine doubts about who are entitled to them •? The State is liable to be convulsed on the
