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should be invoked for offenses committed before election.
While the resolutions presented by the Investigating Committee providing for the expulsion of Ames and Brooks were under consideration, a member of the House offered a substitute containing the following preamble:
"Whereas, by the report of the Special Committee herein, it appears that the acts charged as offenses against members of this House in connection with the Credit Mobilier occurred more than five years ago, and long before the election of such persons to this Congress, two elections by the people having intervened; and whereas, grave doubt exists as to the rightful exercise by this House of its powers to expel a member for offenses committed by such member long before his election thereto, and not connected with such election:
This preamble expressing doubt as to the power to expel for offenses committed before election, was disagreed to: Yeas 98, Noes 113.
For the long and careful debate on the expulsion of members in connection with this preamble see Congressional Globe, 42d Congress, Third Session, pp. 137, 159, 164, 176, 188, 195.
Case of Justice George G. Barnard in the Court of Impeachment. Articles of Impeachment against Justice Barnard were presented by the Assembly to the President of the Senate of the State of New York, May 13, 1872. In the main the articles referred to misconduct of Justice Barnard in a prior term and the question was argued at great length whether he could be impeached for offenses committed during said prior
term (the argument upon that question begins at page 151 and closes on page 191 of the record), the court holding by a vote of 23 to 9 that "the impeachment could properly rest upon said prior* offenses."
The argument on behalf of the respondent was made by William A. Beach, and on behalf of the managers by Josiah M. Van Cott, and the decision of the court stands as unquestioned law today in this State. All the precedents were then collated and examined and the correctness of that decision has never been successfully challenged.
It was cited and upheld upon the impeachment of Governor Sulzer in 1913.
Case of Governor Sulzer. Governor Sulzer was accused by the Assembly and tried before the Court for the Trial of Impeachments principally for acts committed before the opening of his term January 1, 1913.
It was strenuously maintained by the learned counsel for the Governor that he could not be impeached for acts committed before the commencement of his term and much stress was laid upon the proposition that the Barnard case was not a precedent inasmuch as the offenses were committed by Judge Barnard while he was acting as a Justice of the Supreme Court, although in a preceding term, but the acts charged against Sulzer were committed before he ever occupied the gubernatorial chair.
The question received most careful attention and there was an extended discussion not only by the learned counsel who represented the managers and the Governor but also by the members of the Court. The Judges of the Court of Appeals and the Senators were divided upon the subject but by a vote of 39 to 18 Charge No. 1, which involved acts committed prior to the commencement of his term, was sustained.
Vol. 2, p. 1686, Proceedings in the Court of Impeachment, People v. Sulzer, 1913.)
The case of Senator James Wood, cited by counsel for the Socialist Assemblymen (Brief for S. A., pp. 108-109), is therefore against the weight of authority and the Assembly, despite the assertion to the contrary in that brief (id. p. 97), is not limited to conduct during the term of office in considering the question of expulsion.
(4) There is no constitutional limitation in this state of the power of expulsion as there is under the Federal Constitution requiring a two-thirds vote of the Members of either House to expel a member. Exclusion or expulsion can be accomplished by the Assembly by a majority vote and it makes little difference whether the judgment is exclusion or expulsion, since the offense of which these men stand convicted before this Committee is a continuing one of which they were guilty at the time they presented themselves for membership in the Assembly.
Whether the members of the Committee reach the conclusion that the testimony justifies exclusion or are convinced that while it does not justify exclusion, it justifies the expulsion of these five men is of no great consequence, for the authority vested in this Committee to conduct an "investigation of the qualifications and eligibility of the said persons to their respective seats in this Assembly," and to report to the Assembly "its determinations as to the qualifications and eligibility" of these men and each of them respectively to a seat in the Assembly, is broad enough, if the finding shall be that they are guilty of disloyalty and that such disloyalty existed before and continued up to the time of their appearance in this House, to
warrant a recommendation either of exclusion or expulsion.
(5) The provision in the Constitution of this State that no other oath, declaration or test shall be required as a qualification for any office of public trust" than the oath to support the Constitution of the United States and the Constitution of the State of New York (Art. XIII, Sec. 1), does not eliminate loyalty as a qualification for membership in the Assembly and dis loyalty as a disqualification for such membership; neither does it deprive the Assembly of its inherent power to exclude disloyal persons form membership in this body.
It is insisted that the language of Article XIII, Section 1, of the Constitution of this State declaring that no other oath, declaration or test shall be required as a qualification for any office of public trust" than the oath to support the Constitution of the United States and the Constitution of the State of New York, eliminates loyalty as a qualification for membership in the Assembly and disloyalty as a disqualification for such membership and renders the Assembly of this State legally powerless to exclude or expel a disloyal person from membership in this body. In fact, the contention is pressed even further, and it is insisted that anyone, no matter how incompetent or utterly unfit in any respect, must be admitted to this body if he accomplishes the formality of taking, truly or falsely, comprehendingly or even insanely, the constitutional oath of office.
A mere statement of this proposition is its refutation. The astonishing contention which results in such an absurd conclusion is due to confusing qualification with test.
No test, i. e., no attestation of the possession of qualification, is required or permitted by our Constitution other than the taking of an oath of loyalty, and every other test, i. e., the attestation of the possession of any other qualification than that of loyalty, is prohibited. The qualification of loyalty, of course, is, as we shall hereinafter see (infra, p. 73), attested by the taking of the oath to support the Constitution of the United States and the Constitution of the State of New York; but by requiring that such an oath and no other shall be exacted, the Constitution does not dispense with the qualification of loyalty itself. Otherwise, the profession of the possession of the qualification would take the place of the qualification and the mere taking of the oath would be a substitute for loyalty and a shield for disloyalty.
No such result was ever intended to be accomplished by this constitutional provision, whose purpose it is to prohibit the requiring or imposing of a religious, political or other qualification, and the possession thereof to be attested by an oath, declaration or test, in addition to the constitutional oath. (People ex rel. Rogers v. Common Council of Buffalo, 123 N. Y. 173; Rathbone v. Wirth, 150 N. Y. 459, at p. 484 of Opinion per O'Brien, J.) In short, the nature of the constitutional oath is itself expressive and declarative of the only qualification for membership in this body with which the Constitution is concerned, to wit, the qualification of loyalty to the United States and the State of New York. Therefore, it is prescribed that no other test than such oath may be required, for such test would necessarily refer to and require other qualifications in addition to loyalty.
In this respect there is no difference between the Federal and State Constitutions. Each requires a test