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Colonial Assemblies had always exercised the right of judging whether their members were duly elected; a right which seems to me inherent in all representative bodies."
Some of these authorites were cited with approval by Judge Folgee, in People ex rel. Hatzel v. Hall (80 N. Y.,121), where, after referring to the powers of the House of Commons as defined by Cushing, he says: The same author says that the power is so essential to the free election and independent existence of a legislative assembly that it may be regarded as a necessary incident to every body of that description which emanates directly from the people; and that the Constitutional provisions are out of abundant caution."
In 1846, while a bill relating to the appointment of delegates to the Convention, which had been provided for in the previous year, was pending before the Legislature, the Assembly referred the proposed act to the justices of the Supreme Court, requesting them to communicate forthwith to the house whether in their opinion the delegates to be chosen to the Convention should be selected according to the old apportionment or the new. The court, consisting of Judges Bronson, Beardsley and Jewett, in the course of their opinion, rendered in response to the legislative request, used the following significant language:
"The Legislature is not supreme. It is only a part of that absolute sovereignty which resides in the whole people. Like other departments of the govenrment, it acts under a delegation of powers, and cannot rightfully go beyond the limits which have been assigned to it. This delegation of powers has been made by the fundamental law, which no one department of the govern ment, nor all the departments united have authority to change. That can only be done by the people themselves. A power has been given to the Legislature to propose amendments to the Constitution, which, when approved and ratified by the people, became a part of the fundamental law. But no power has been delegated to the Legislature to call a Convention to revise the Constitution. That is a measure which must come from, and be the act of the people themselves. Neither the calling of a Convention nor the Convention itself is a proceeding under the Constitution. It is above and beyond the Constitution. Instead of acting under the forms and within the limits prescribed by that instrument, the very business of a Convention is to change those forms and boundaries as the public interest may seem to require. A Convention is not a government measure, but a
movement of the people, having for its object a change, either in whole or in part, of the existing form of government."
"As the whole people have not only omitted to confer any power on the Legislature to call a Convention, but have also prescribed another mode of amending the organic law, we are unable to see that the act of 1845 had any obligatory force at the time of its enactment. It could operate by way of advice, or recommendation, and not as law. It amounted to nothing more than a proposition or suggestion to the people to decide whether they would or would not have a Convention. That question the people have settled in the affirmative, and the law derives its obligation from that act and not from the power of the Legislature to pass it."
"The people have not only decided in favor of a Convention, but they have determined that it shall be held in accordance with the provisions of the act of 1845. No other proposition was before them, and, of course, their votes could have had reference to nothing else. They have decided on the time and manner of electing delegates and how they shall be apportioned among the several counties."
"If the act of the last session is not a law of the Legislature but a law made by the people themselves, the conclusion is obvious that the Legislature cannot annul it, nor make any substantial change in its provision. If the Legislature can alter the rule of representation, it can repeal the law altogether, and thus defeat a measure which has been willed by a higher power."
"A change in the fundamental law, when not made in the form which the law has prescribed, must always be a work of the utmost delicacy. Under any other form of government than our own, it could amount to nothing less than a revolution. The greatest care should, therefore, be taken that nothing be done which can give rise to debates or difficulties in the choice of delegates, or the harmonious organization and action of the Convention. A controversy about the number of delegates to which any county is entitled may lead to irregular and disorderly proceedings at the election, and an imperfect expression of the will of the electors in the choice of delegates. It may embarrass the inspectors of election and the canvassers of votes. It may also tend to disorder in the convention where the question must finally be settled, who are and who are not members of the body."
This language is the more significant in view of the fact that neither the act of 1845 nor the act of 1846 contained a provision similar to that found in the act of 1893, conferring upon the Convention the power to adjudge the qualification and elections of its members.
That a body of this character must ex necessitate, be invested with quasi judicial powers with respect to its organization and the conduct of its business, although there is no express grant of power in the Constitution, becomes further evident from the numerous adjudications recognizing the right of legislative bodies to expel their members, and to punish for contempt, not only those who are constituents of the body exercising the power, but also strangers who may be guilty of disorderly conduct, recusant witnesses, and others who perform acts tending to obstruct its proceedings.
In Hiss v. Bartlett (3 Gray, Mass., 473), Chief Justice Shaw said, in a case involving the right of the Legislature to expel one of its members :
"There is nothing to show that the framers of the Constitution intended to withhold this power. It may have been given expressly in other States, either ex majori cautela, or for the purpose of limiting it by requiring a vote of more than a majority."
"It is suggested that the true remedy is by impeachment. But that form of proceeding has never been applied to members of the Legislature; and would be slow, laborious and expensive, and inadequate to the object sought to be obtained. Impeachment lies only for the purpose of punishment, by deprivation of office, and disqualification to hold office, leaving the offender still liable to indictment, if the offense be indictable."
The power of expulsion is a necessary and incidental power, to enable the house to perform its high functions and it 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 afflicted with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene or abusive language. It is necessary to put extreme cases to test a principle. If the power exists, the house may necessarily be the sole judge of the exigency which may justify and require its exercise. As to the law and custom of Parliament, the authorities cited clearly show that the jurisdiction to commit and also
to expel, has long been recognized, not only in Parliament, but in the courts of law, for the purpose of protection and punishment." "But there is another consideration, which seems to render it proper to look into the law and practice of Parliament, to some extent. I am strongly inclined to believe, as above, intimated, that the power to commit and to expel its members was not given to the house and senate respectively, because it was regarded as inherent, incidental and necessary, and must exist in every aggregate and deliberative body, in order to the exercise of its functions, and because without it such a body would be powerless to accomplish the purposes of its Constitution; and, therefore, any attempt to express or define it would impair rather than strengthen it. This being so, the practice and usage of other legislative bodies, exercising the same functions, under similar exigencies, and the reasons and grounds, existing in the nature of things, upon which their rules and practice have been founded may serve as an example and as some guide to the adoption of good rules, when the exigencies arise under our Constitution. But independently of parliamentary custom and usages, our legislative houses have the power to protect themselves, by the punishment and expulsion of a member."
In People ex rel. McDonald v. Keeler (99 N. Y., 463), the power of the Senate to punish a witness summoned before an investigating committee was involved. The proceedings were instituted under the provisions of the Revised Statutes, which were, however, claimed to be unconstitutional in that they permitted the Senate to exercise a power judicial in its nature, and that the Constitution, being silent on the subject, intended to withhold from the Legislature the right to exercise such judicial functions. The objection was, however, disapproved by the court, Judge Rapallo, saying:
"At the time of their enactment, as appears by the note of the revisers, it was assumed that although the State Constitution of 1821 was silent upon the subject of the privileges of the Legislature or of either house, yet that it was not intended to deprive the two houses of the power which the revisers characterized as indispensable, of punishing contempts, which it had then been determined by the Supreme Court of the United States, in the case of Anderson v. Dunn (6 Wheat, 204), was possessed by the Houses of Congress by necessary implication, the Constitution of the United States being equally silent upon the subject, and it was deemed proper to provide a legislative definition of those
privileges of the houses and their members, the breach of which should be regarded as a contempt. With this view the new provisions were framed. (See note to tit. 2, chap. 7, part 1, R. S.)”
"The Constitution of the United States declares, in terms, that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time, order and establish. Although no similar declaration is contained in the Constitution of this State, still it is a recognized principle that in the division of power among the great departments of government, the judicial power has been committed to the judiciary, as the executive power, has been committed to the executive department, and the legislative to the Legislature, and that body has no power to assume the functions of the judiciary to determine controversies among citizens or even to expound its own laws, so as to control the decisions of the courts in respect to past transactions. (People v. Supervisors, 16 N. Y., 432.) To declare what the law shall be is a legislative power; to declare what it is, or has been, is judicial. (Thompson, J., in Dash v. Van Kleeck, 7 Johns., 498.) But notwithstanding this general division of powers, certain powers in their nature judicial are by the express terms of the Constitution, vested in the Legislature. The power of impeachment is vested in the Assembly. Each house is made the judge of the qualifications and elections of its own members. The power of removal of certain judicial officers for cause is given by the Constitution to the Senate and Assembly, and involves inquiries judicial in their nature, and by statute certain other officers may be removed by the Senate on recommendation of the Governor. (1 R. S., 125, section 41.) I think it would be going too far to say that every statute is necessarily void which involves action on the part of either house, partaking in any degree of a judicial character, if not expressly authorized by the Constitution. Where the statute relates to the proceedings of the legislative body itself, and is necessary or appropriate to enable it to perform its constitutional functions, I cannot regard it as such an invasion of the province of the judiciary as should bring it within any implied prohibition of the State Constitution. That instrument contains no express provision declaring any of the privileges of the members of either house, except that for any speech or debate in either house, the member shall not be questioned in any other place. Even the privilege of exemption from arrest during the sessions, is not declared. No power to keep order or to punish members or others