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members and officers for disorderly behavior by imprisonment, but no member shall be expelled until a report of a committee appointed to inquire into the facts alleged as grounds of his expulsion shall have been made."
The provision of the present Legislative Law on the subject reads as follows:
Sec. 3. Each house has the power to expel any of its members after the report of a committee to inquire into the charges against him shall have been made."
The jurisdiction inherent in the Assembly is so exclusive in character that even the judicial pronouncement of the highest court in this State as to the eligibility of one elected to sit in the Assembly would be ineffectual ex proprio vigore so far as the decision of the Assembly is concerned.
"But it is claimed that we have no jurisdiction. to determine that the relator was ineligible to the office of Senator because the Constitution in Sec. 10 of Art. 3, provides that each house of the legislature shall be the judge of the elections, returns, and qualifications of its own members.' The courts cannot interfere with this jurisdiction of the SenWhatever may be determined here or else
as to the election or qualification of the relator, or the result of the election in the 27th senatorial district, when the senate convenes, and not until then, it will have absolute jurisdiction of the whole subject, and may determine which of the two persons claiming seats therein was duly elected and qualified to sit therein; and it may determine that one was ineligible, and that the other was not
elected, and that thus there is a vacancy in that district for a new election." (People ex rel Sherwood v. Bd. Canvassers, 129 N. Y. 360, at pp. 372-373 of opinion of the Court, per Earl, J. See also opinion per Cullen, Ch. J., in matter of Sherrill v. O'Brien, 188 N. Y. 185, at p. 214.)
Moreover, even when there is no judicial power to declare disabled to hold office, on a proceeding by or in the nature of a quo warranto, because of bribery in procuring his election, one elected to such office, the power of the Legislature to determine questions of membership is not affected by such limitation on the judicial power which is necessarily dependent on the law itself.
"We are also cited to cases where persons have been excluded from public bodies for bribery in procuring their appointment or election thereto, but in those cases such bodies were empowered to determine questions of membership.* Those cases do not touch the question of disability to hold office presented to the court on a proceeding by or in the nature of a quo warranto."
People ex rel. Bush v. Thornton, 25 Hun, 456, 465.
Care must be exercised in considering judicial decisions dealing with express limitation on the jurisdiction of courts in political cases, for it must always be remembered that the judicial branch of the government has no power to suggest even the disqualification or exigeney which the legislative branch may consider sufficient for the exclusion or expulsion of a legislative memher. Indeed, judicial decisions are of interest only, and only then, in so far as they are declaratory of the exclusive power of the Legislature in all matters pertaining to its membership.
These proceedings, therefore, not only do not tend to subvert the foundations upon which our institutions rest but constitute the exclusive means and method by which the issue of the eligibility and qualifications of the five Socialists must be tried and determined. An investigation into the eligibility and qualifications of these men was the only proper and just course to pursue when their eligibility and qualifications were questioned. The exercise of the inherent power of the Assembly to declare qualified or disqualified, to seat or exclude, to retain or expel these men, should properly follow an inquiry such as has been had. The result of this inquiry will determine what action the Assembly will take. In taking such action the Legislature will merely exercise its inherent parliamentary and declared constitutional and statutory powers. Parliamentary power is an incident of parliamentary government; the Constitution is certainly a part of our contitutional system.
(2) Disloyalty is a recognized reason for exercising the power of exclusion or expulsion.
It is inherently implied in every constitutional provision under which the Assembly has its existence that no man is qualified to sit as a member who has not the indispensable qualification of loyalty to the Government.
The Third Section of the Fourteenth Amendment to the Constitution of the United States does not make loyalty a qualification and disloyalty a disability, but is merely a limitation on Power of Congress and State Legislatures to disregard the disloyalty of those who, having been members of the Federal or any State Legislature, "shall have engaged in insurrection or rebellion against the United States" or given aid or comfort to the enemies thereof." Such a person may not be accepted by the National or any State
Legislature as eligible to membership therein until
The Amendment is therefore a limitation upon the power of qualification by the National and State Legislatures and not the imposition of a new qualification or disability.
It was conceded by counsel for the Socialist Assemblymen at the very beginning of these proceedings that if the disloyalty alleged in the resolution appointing this Committee were proved, such disloyalty must necessarily result in the exclusion from the Assembly of these five men.
We have seen that every parliamentary body has the inherent power to judge of the qualifications of its members and is the sole judge of such qualifications and of the exigency which may justify and require the exercise of the power of expulsion.
We have seen further that constitutional provisions relating to that power are either declaratory of its existence or limitations on the exercise of it.
Such constitutional provisions do not therefore either create or extend the power, for as an inherent power it is ample.
We now come to a consideration of the cases in which loyalty has been held to be an indispensable qualification and disloyalty a disqualification for membership in a parliamentary body, justifying exclusion from the body.
The first reported case in which disloyalty as a disqualification was considered is that of Benjamin Stark, appointed a Senator of the United States by the Governor of Oregon to fill a vacancy. His credentials were presented on January 6th, 1862, in the Senate, by his colleague, Senator Nesmith. A motion was made by
Senator Fessenden of Maine that the oath be not administered and that the credentials, with certain papers which he offered, be referred to the Committee on Judiciary. This motion was debated at length.
It was admitted by Mr. Fessenden that he considered the motion unprecedented, but he considered it justified by the papers which he presented. These papers consisted of affidavits of persons in Oregon who swore that they had heard Mr. Stark make disloyal speeches.
In the debate it appeared that persons presenting credentials as Senators had been denied their seats pending investigation; but that in such cases there had been involved questions of law only raised by the wording of the credentials themselves or by the Senate taking judicial knowledge of a fact as to the session of a Legislature. But in this case a fact as to qualification was raised, and it was contended that loyalty was not one of the three enumerated qualifications.. (1 Hinds Parliamentary Precedents, ubi infra.)
Senator Fessenden's motion was agreed to, and on Ferbuary 7, 1862, Senator Harris. of New York submitted the report of the Committee on Judiciary, as
"The Committee on the Judiciary to whom were referred the credentials of Benjamin Stark as a Senator from the State of Oregon, with the accompanying papers, have had the same under consideration, and without expressing any opinion as to the effect of the papers before them upon any subsequent proceedings in the case, they report the following resolution:
Resolved, That Benjamin Stark of Oregon, appointed a Senator of that State by the Governor thereof is entitled to take the constitutional oath of office."