Werts v. Rogers | Cases | Westlaw

*726 The facts are substantially as follows:

On the 21st day of February, 1894, the attorney general presented to this court the petition of the relator, who is the governor of the state, setting forth that the defendants each claimed to be possessed of the office of president of the senate of New Jersey, with all the rights, powers, and privileges appertaining to that office, and that each of them, in pursuance of such claim, is actually engaged in exercising the functions of said office. The petition shows that the interests of the people of this state are being greatly imperiled by these conflicting claims, and that a speedy determination of the same is imperatively demanded, in the interest of good government and public order. On the filing of this petition, a rule was granted requiring the defendants to show cause before this court why leave should not be given to the attorney general to exhibit an information in the nature of a quo warranto against them, and each of them, for usurping, intruding into, and unlawfully holding and exercising the office of president of the senate of the state of New Jersey. Leave was also given to all parties to take affidavits, to be used on the return of the rule. The attorney general immediately gave notice to both defendants of the taking of affidavits before a supreme court commissioner on the 24th day of February last. At the time designated, both defendants appeared in person and by counsel, and the examination of witnesses was proceeded with. On behalf of the attorney general and the relator only two witnesses were examined. They were Samuel C. Thompson, secretary of the body which elected Robert Adrain president, and Wilbur A. Mott, secretary of the body which elected Maurice A. Rogers. Several witnesses were sworn on behalf of Maurice A. Rogers, and one on behalf of Robert Adrain. The testimony was closed on Wednesday, February 28th, and the parties are now here to present their case.

The state of facts thus exhibited, in so far as it appears to be pertinent to this inquiry, is as follows: A short time before 3 o'clock on the afternoon of January 9th, the nine Democratic hold–over senators assembled in the senate chamber. At about 3 minutes before 3 o'clock, Samuel C. Thompson, who was secretary of the session of 1893, called the senate to order, and Senator Daly offered a resolution naming Robert Adrain as president pro tempore. This resolution was immediately adopted. Robert Adrain thereupon took the chair, and, after waiting until 3 o'clock or later, ordered a roll call of the senate. The nine senators referred to alone answered to their names. There was then another wait of 3 or 4 minutes, ending in another roll call. To this roll call, also, only the nine senators referred to answered. Thereupon Senator Daly moved a recess of 5 minutes, which motion was adopted. At about 15 minutes past 3 o'clock the senate came to order again. At this time the four hold–over Republican senators, accompanied by the seven Republican senators–elect, entered the chamber, and took their seats on the floor. Immediately after the Republican senators had taken their seats, Robert Adrain, as presiding officer, ordered another roll call. The names of the hold–over senators, both Republican and Democratic, were called. At the conclusion of the call, the secretary announced, in a loud tone of voice: “Mr. President, there are thirteen senators present, and have answered to their names.” The secretary testified that he believed the whole 13 did answer to their names. He did not, however, swear positively that they did; and the evidence given by other witnesses makes it very clear, I think, that they did not. However, no objection was made by anybody to the announcement of the result of the roll call by the secretary as above mentioned, and *727 the president thereupon declared that there was a quorum present. No objection appears to have been made by anybody to this declaration. While this roll call was proceeding, Senator Stokes, one of the hold–over Republican senators, arose, and entered a protest against the organization of the senate on account of its having been effected in the absence of the Republican senators. Senator Adrain ruled him out of order, on the ground that a roll call was in progress. At the conclusion of the roll call, Senator Adrain recognized Senator Stokes, and the latter said he arose to a question of the highest privilege, and asked Senator Adrain, as presiding officer, if the usual custom would be followed, and senators admitted on their credentials. Senator Adrain replied that he was only one of the body, and could not give the desired information. Senator Skirm, another of the Republican hold–over senators, then arose, and announced to Senator Stokes, without addressing the chair, that he had the credentials and affidavits of the seven newly–elected Republican senators. At that point Senator Adrain stated that Senator Daly had a resolution which he thought would cover the matter and give the information desired. Thereupon Senator Daly, one of the Democratic hold–over senators, offered the following resolution: “Resolved, that all certificates of election or other credentials of those claiming seats in this senate by virtue of the election held on the 7th day of November, 1893, together with all protests, petitions, and other communications or papers presented to this senate concerning its membership, be in the first instance referred to a special committee of three, to be appointed by the president, which committee shall report upon the validity of such credentials, and shall make such report concerning such protests, petitions, communications, or papers as shall be necessary.” After the resolution was offered, Senator–Elect Voorhees, one of the newly–elected Republican senators, arose in his seat, and attempted to address the chair, stating that he claimed his rights on the floor of the senate as senator–elect from the county of Union, Senator Adrain refused to recognize him, and ordered him to take his seat. Senator Voorhees declined to be seated, and Senator Adrain thereupon directed the sergeant at arms to seat him. Senator Voorhees still refused to be seated, and, after some further protest, invited the Republican senators and senators–elect to withdraw to one of the lobbies of the senate chamber, and they all immediately did so. No notice was taken of the withdrawal of the Republican senators by the nine Democratic senators. Soon after such withdrawal, the resolution last offered by Senator Daly was adopted, and a committee on credentials appointed. Immediately after such appointment, Senator Daly arose, and presented the credentials of Christopher S. Staats, a Democratic senator–elect from the county of Warren. These credentials were referred to the said committee, who immediately reported favorably upon them, and Senator Staats was thereupon admitted, sworn in, and took his seat.

Next, a resolution was passed, as follows: “Resolved, that no one shall be admitted to membership of this senate except on motion made for his admission, and its adoption by a majority of the qualified and admitted senators.” Senator Daly then offered a resolution “that the officers of the session of 1893 be, and the same are hereby, appointed officers of this session, to hold until further orders shall be made concerning their positions by the vote of a majority of the qualified and admitted members of the senate.” After the passage of this resolution, Senator Daly offered the following: “Resolved, that the president pro tempore of this senate shall hold said office of president until his successor shall be elected by the votes of a majority of the qualified and admitted members of the senate.” This resolution was also adopted. A number of the old officers thereupon took the oath of office. The president, however, does not seem to have done so. This body, thus organized, continued in session some time after the passage of these resolutions, and transacted, or attempted to transact, considerable business. Among other things, it appointed a committee to wait upon the governor, and inform him that the senate had organized. It also directed the secretary of the senate to inform the house of assembly that the senate had organized. It also passed a resolution adopting the rules of the senate of 1893 for its guidance, and received and referred to committees, when appointed, three or four legislative bills. Ever since said organization, or attempted organization, this body has met as a senate, at intervals of not more than three days each. Its presiding officer has always been Robert Adrain. It recognizes him as president of the senate, and he claims to be such, we are informed, not only by virtue of his election as temporary president, and his after–election as president until his successor should be elected, but also by virtue of his election as president at the beginning of the session of 1893. He has done no act as president, however, so far as the testimony discloses, except to preside over the deliberations of this body.

Upon the withdrawal of the Republican senators and senators–elect, as aforesaid, they proceeded at once to organize a senate in the lobby of the senate chamber, to which they had withdrawn, as above mentioned. Before proceeding with their organization, Senator Stokes stepped into the door opening from the lobby upon the floor of the senate chamber, and announced to the Democratic senators there remaining that the senate was about to proceed to organize, and requested them to participate in such organization. No notice was taken of this announcement, and the Republican senators proceeded to organize *728 alone. Senator Stokes assumed the chairmanship of the meeting, and Wilbur A. Mott assumed the position of temporary secretary. The credentials of the newly–elected Rebublican senators were produced and inspected, and handed to the secretary pro tempore. These senators had taken the oath of office before appearing in the senate chamber, and their respective oaths were produced, with their credentials, and handed to the secretary pro tempore. The secretary thereupon called a roll of the senators, including those newly elected. The 11 Republican senators all answered to their names. Thereupon Senator Skirm moved that they go into an election of a president. Maurice A. Rogers was nominated, and upon a roll call he received 11 votes. A secretary and the usual number of officers of the senate were next elected by the same vote. After the officers were elected, they were all sworn in, including Maurice A. Rogers. Mr. Rogers thereupon took his seat as president of the senate. A committee was then appointed to wait upon the governor, and inform him that the senate was organized. A message was also received from the house of assembly to the effect that the assembly was duly organized, and had proceeded to business. The body thus organized has also been in session at intervals of not more than three days each ever since its organization. Senator Rogers regularly presides over it, and is recognized by it as president of the senate. It has passed bills, and Senator Rogers has authenticated them as president of the senate. It has also been recognized regularly and continuously by the house of assembly as the true senate, and has met in joint assembly with the house, and such assembly has elected, or attempted to elect, a state treasurer and comptroller.

Upon this state of facts, the attorney general and the relator ask the court to determine which of these claimants, if either of them, is the true president of the senate of New Jersey.

R. V. Lindabury, for relator.

By our statute, an information with leave of the court lies at the suit of the attorney general, on the relation of anybody desiring to prosecute the same, against any person or persons who shall usurp, intrude into, or unlawfully hold or execute any office or franchise within this state. It has been authoritatively determined, in this court at least, that under this act any intruder into any office of a public character in this state may be judicially ousted by a proceeding in this court. State v. Utter, 14 N. J. Law, 84; Bownes v. Meehan, 45 N. J. Law, 190.

The office of president of the senate is recognized in the constitution in four places. In article 4, § 4, par. 7, it is provided that “the president of the senate and the speaker of the house of assembly shall, in virtue of their offices, receive an additional compensation, equal to one–third of their per diem allowance as members.” In article 5, par. 12, it is provided that, “in case of the death, resignation or removal from office of the governor, the powers, duties and emoluments of the office shall devolve upon the president of the senate, and in case of his death, resignation, or removal, then upon the speaker of the house of assembly for the time being, until another governor shall be elected and qualified.” Paragraphs 13 and 14 of the same article are as follows: “113. In case of the impeachment of the governor, his absence from the state or inability to discharge the duties of his office, the powers, duties and emoluments of the office shall devolve upon the president of the senate; and in case of his death, resignation or removal, then upon the speaker of the house of assembly for the time being, until the governor, absent or impeached, shall return or be acquitted, or until the disqualification or inability shall cease, or until a new governor be elected and qualified. 14. In case of a vacancy in the office of governor from any other cause than those herein enumerated, or in case of the death of the governor–elect before he is qualified into office, the powers, duties and emoluments of the office shall devolve upon the president of the senate or speaker of the house of assembly, as above provided for, until a new governor be elected and qualified.” On February 14, 1845, the legislature passed the following act: “Section 1. The powers, privileges, duties, and remunerations, granted to or imposed upon the vice–president of council by law, at and immediately before the time when the present constitution of the state took effect, shall hereafter be exercised, enjoyed, and performed by the president of the senate, so far as the same are not inconsistent with the present constitution; and all such powers or duties heretofore exercised or performed by the president of the senate, are hereby ratified and confirmed, and shall have the same force and effect as if exercised or performed after the passage of this act.” Revision, p. 748. Since the adoption of the constitution, the president of the senate has been made ex officio one of “the trustees for the support of public schools.” Id. p. 1081, § 65. He has also, by the same act, been made a member of the “state board of education.” Id. p. 1071, § 1.

In Bownes v. Meehan, 45 N. J. Law, 189, it was contended that the jailer of the workhouse on the county farm of Hudson county is not an independent public officer, but the mere servant of the chosen freeholders, and that, therefore, an information would not lie against him. The court held, however, that as his duties were of a public nature, and his office had an independent existence, it being created by statute, an information would lie against him even at common law, and that much more would it lie under the liberal terms of our statute. It was also contended in this case that as the board of *729 freeholders could vacate the office of jailer at will, and elect a successor, there was no need to resort to a quo warranto. To this the court replied that the argument failed, because it did not show how the incumbent could be ousted from his station if he chose to retain it after he had been removed by the board of freeholders. In State v. Utter, 14 N. J. Law, 84, an information was filed against a usurper of the office of deputy adjutant general of the Essex brigade of militia of Newark. It was objected that the information would not lie, because a deputy adjutant general was a member of the general staff, and belonged to the “family of the commander in chief,” and, as such, was removable at his will and pleasure. The court pronounced judgment of ouster. In his opinion Chief Justice Hornblower points out that the office is created by law; that it concerns the public, and is valuable, as well as honorable. He says the question of whether or not judgment of ouster shall be given does not depend upon the tenure by which the office is held, or whether the lawful incumbent may be removed by the ipse dixit of the commander in chief, or can only be ousted by impeachment, or by the judgment of a court martial. He is still the lawful incumbent until lawfully removed.

II. But an information will not lie against a mere claimant to an office. User must be shown in every case. Maurice A. Rogers has presided over his senate, and has attested legislative bills as president of the senate. In so doing, he has executed the office in two of its important functions, and is clearly guilty of a user of that office, unless he has a title thereto. Besides, he has taken the official oath to “perform all the duties of the office of president of the senate,” according to the constitution, and that, by all the cases, is a sufficient user to support an information. King v. Harwood, 2 East, 177; King v. Tate, 4 East, 337; People v. Callaghan, 83 Ill. 128.

Robert Adrain has not taken the oath of office as president of the senate, but he has constantly presided over his senate, since its organization, as the president of the senate. I submit that this is a sufficient user on his part.

III. The court cannot inquire into and determine the titles of these gentlemen without inquiring into and determining the status of the respective senates which elected them, but I deny that the court is without the power to do this for any of the reasons stated, or for any other reason.

Nothing can be more obvious than that power must exist in the judicial department of any constitutional government to pass in some way or other upon the constitutional existence of any body setting itself up as the lawmaking power.

In 1868 a man named Barstow usurped the governorship of Wisconsin. The attorney general filed an information against him, on the relation of the rightful governor. Barstow came into court, and moved to dismiss the information, on the ground that it would not lie against a man occupying the office of governor. The court, however, refused to dismiss the information, and finally gave judgment of ouster, holding that, although it had no control over the executive department of the government, it did have the power to ascertain and decide whether or not the executive held his office according to the constitution, or was a mere usurper. This was the first quo warranto case in this country against a usurping governor, and the discussion of counsel and judges is of very great interest. 4 Wis. 567. After the Wisconsin decision, a similar case arose in Connecticut, and another in Nebraska. In both cases jurisdiction was assumed by the state courts, and, in the Nebraska case, by the supreme court of the United States on appeal. Boyd v. Nebraska, (1892,) 12 Sup. Ct. 375; 143 U. S. 135; State v. Bulkeley, (1892,) 23 Atl. 186.

In the fall of 1879 a question arose in the state of Maine as to which of the two great political parties had elected a majority of the legislature. By the constitution of that state, a council of seven persons is created to advise with the governor respecting affairs of state, and it is provided that the governor and council shall examine the election returns of members of the senate and house of representatives, and issue summonses to such as appear to have been elected. They are also to make up a list of such members, and the houses are to be organized according thereto. The constitution also provides that the justices of the supreme judicial court “shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the governor, council, senate or house of representatives.” The governor and council, being in doubt as to what persons were entitled to be summoned to organize the legislature of 1880, in view of the disputed election referred to, addressed sundry questions to the justices bearing upon that subject. These were duly answered by the justices, but the answers were not regarded by the governor and council, who issued summonses contrary thereto. In consequence, on the 12th of January, two rival legislatures assembled, and both organized at about the same hour. Shortly after its organization, one of these legislatures propounded questions to the judges, which they duly answered on the 16th of January. Thereupon, on the 23d of January, the other legislature propounded questions; and on the 24th of January the judges replied thereto, stating that the solemn occasion had arisen when they were bound to declare that the questions presented were not presented by a legally constituted legislative body, so as to require an opinion from them. In support of their right to thus refuse *730 recognition to the body presenting the questions, they said: “When different bodies of men, each claiming to be and to exercise the functions of the legislative department of the state, appear, each asserting their titles, to be regarded as the lawgivers for the people, it is the obvious duty of the judicial department, who must inevitably, at no distant day, be called to pass upon the validity of the laws that may be enacted by the respective claimants to legislative authority, to inquire and ascertain for themselves, with or without questions presented by the claimants, which of those bodies lawfully represents the people, from whom they derive their power. There can be but one lawful legislature. The court must know for itself whose enactments it will recognize as laws of binding force, whose levies of taxes it will enforce when brought judicially before it, whose choice of a prosecuting officer before the court it will respect. In a thousand ways it becomes essential that the court should forthwith ascertain and take judicial cognizance of the question, which is the true legislature?”70 Me. 608. Subsequently, in Prince v. Skillin, 71 Me. 367, when a law passed by one of these legislatures was challenged, the court reaffirmed its former decision, upon precisely the same grounds.

In January, 1893, two houses of representatives, each claiming to have been elected by the people, met and organized in the state of Kansas. It is a matter of history that, in consequence, the utmost disorder and confusion prevailed for a long time. Finally, the speaker of one of the bodies issued his warrant for the arrest of a witness named Gunn, who had refused to obey a subpoena to appear and testify. The warrant was duly served, and Gunn thereupon sued out a writ of habeas corpus. Upon the return of the writ, no question was raised except as to the authority of the speaker to issue the warrant, and that, in turn, was conceded to depend upon the constitutional authority of the body which elected him. The whole question, therefore, was as to the title of the speaker, which admittedly depended upon the organization of the house. The court took jurisdiction of the question, and settled the whole controversy upon the return of the writ, holding that to be the legal house, in which, at the time of the organization, there was a majority of duly–certified members. In re Gunn, 32 Pac. 470.

The principles here contended for, and illustrated by the foregoing cases, find their best expression in the unanimous resolution adopted by the supreme court of Massachusetts in 1859, in the case of Burnham v. Morrissey, reported in 14 Gray, 238.

IV. But it has been argued that as the constitution makes the senate the judge of the election, qualifications, and returns of its members, and as the title of the defendants, respectively, depends not so much upon the action of their respective senates as upon the qualifications of the members of those senates to act, the court cannot try such titles without passing upon the very questions exclusively committed to the judgment of that tribunal. I admit that the court cannot inquire into the qualifications, election, or returns of members of the senate, but I deny that it is necessary for it to do so in order to determine this controversy. It might be the court could not, upon quo warranto proceedings, oust the uncertified members from either house, but it certainly could, without difficulty, upon a proper case, determine which was the true house, by determining which was organized according to the constitution. Trying them by that standard, it would be found that the true house was that body which organized with a quorum of certified members; and the fact that the other body consisted of 60 members, whose election, qualifications, and returns had been regularly passed upon by their fellows, would go for nothing, because of the fact that the body which passed upon them was without jurisdiction as a court, for want of a quorum. In re Gunn, (Kan.) 32 Pac. 470; State v. Tomlinson, 20 Kan. 692; State v. Francis, 26 Kan. 724.

The simple question to be considered, therefore, is this: Who constitute the senate at the beginning of a session? Upon that question every other question in this case depends, and it is folly to claim that in solving it the court will be required to pass upon the election, qualifications, or returns of any member of the senate.

V. No question can arise in this case as to the de facto existence of either of these bodies. As was pointed out by the judges in both the Maine and Kansas cases, there can neither be two de facto legislatures, nor a de facto and a de jure legislature, at the same time.

Cortlandt Parker, for respondent Maurice A. Rogers.

I. The senate is no continuous body, in the sense of one continuing from session to session. The members all continue members “until the second Tuesday in January of each year, at which time of meeting the legislative year begins.”Const. art. 4, § 1, par. 3. During the period between their adjournment sine die and the meeting of the new senate, the old subsists, but in a state of suspended animation. The governor, by calling a special meeting of the legislature, can break this suspended condition. The same is true of the house of assembly. It continues to exist, in identically the same way; that is, the members remain members for the year, without power to convene, except at the governor's call. When the time of meeting which begins the legislative year arrives, then the old members of the assembly go out, and new members take their places. And this is true of one–third of the number of the senators. *731 They go out, and others take their places. The fact that all do not go out does not make the senators who remain constitute a body. They cannot do so till they meet their new fellows. Then the old and the new make up the senate of that year.

It is urged—and the argument made is upon this alleged analogy—that the senate of New Jersey is like the senate of the United States. Both are made up by classes. That the United States senate is pronounced to be a continuous body, and that, therefore, this is the case with the New Jersey senate. Mr. Clay, quoted by the attorney general, seems nearer right. “In the true contemplation of the constitution, the senate, and the house, too, were supposed to be in existence. The senate and house were, in the contemplation of the constitution, continuous bodies.” Mr. Buchanan argued for the senate's being a permanent body thus: “Its rules were permanent;” not so with our senate. “Its secretary was permanent;” not so with our senate. “The senate always had a president;” not so with ours.

II. If the senate be a continuous body, in any sense, its members possess no power to sit upon the right of their fellows in organization. At the first session of the United States senate, in April, 1789, the members came slowly in. At last, April 6th, the journal shows the presence of senators from eight states, three of them only represented by one senator each. The journal states their appearance by name, proceeding: “Being a quorum, consisting of a majority of the whole number of senators of the United States. The credentials of the aforesaid members were read, and ordered to be filed. The senate proceeded to elect a president, for the sole purpose of counting the votes for president.” Hon. John Langdon was elected. April 13th other senators are named as appearing, of whom the journal says that they “severally produced their credentials, and took their seats in the senate.” No committee; no approval; no vote of admission. In the second session of the same congress, the journal gives the names of a quorum as appearing, and resolutions then inform the president and the house that they are ready to proceed to business. In the third session new members appear, “produced their credentials, and took their seats.” At a later day, P. Dickinson, from New Jersey, “produced his credentials, and took his seat in place of Gov. Paterson.”

The ordinary way with the journal is as follows: First. It announces that, the day for session having arrived, the following senators appeared, giving the names of all, both old and new. Then the new are mentioned by name, a second time, and then the journal says: “Who severally produced their credentials, and took their seats in the senate.” Such was the entry in 1789. After this “the senate elected a president pro tem., to whom, by motion, Mr. Read administered the oath required by law.” Then a resolution is stated that a message be sent to the house, and to the executive, that a quorum was ready to attend to business. In 1801 the journal gives a list of all, and then names eight new members, who are stated to have severally produced their credentials, and taken their seats. Then came election by all of a president pro tem.,—a legal officer, by force of the statute,—and that officer administered the oath to the new members. In 1803–1805 like entries occur. In 1807, Vice President Clinton being in the chair, the statement is that the new members respectively took their seats, and presented their credentials, which were read, and the oath prescribed by law was administered to them. Hon. John Pope had left his credentials at home, but said he expected soon to get them, “whereupon he took his seat, and the oath was administered to him, as the law prescribes.” The same practice obtained year by year. In the twenty–third congress, 1833, the journal is noticeable. A full list of members is given. Then new ones named in it are mentioned, and stated to have produced their credentials, been sworn in, and to have taken their seats. Then occurs this entry: “The president communicated an act of the general assembly of Rhode Island declaring void the election of Asher Robbins, and a certificate by the governor of that state of the election of Elisha R. Potter.” Then a motion was made to administer the oath to Mr. Robbins, whose credentials were received at the last session. Mr. Benton then moved to refer the matter to a committee to consider and report. Ayes and nays being called, that motion was lost. Then the motion to administer the oath was put and carried. The oath was administered, and Mr. Robbins took his seat; and then came the resolution of notification that a quorum was in session ready for business. Throughout the long period examined, this is the only case in which action was formally taken upon the right of a member during the process of organization. In this case contest was made by the state, and by an individual contestant himself bringing a certificate of election; and the vote of the court indorsed the law that not even the statute of the state represented, declaring the election void, and the contesting credentials of a governor, authorized considering the members' credentials. Even the practice of the house of lords in England demolishes the idea of a continuous body. There are periods there when no parliament exists. At every new parliament every peer renews his oath of office. New peers present their patents, and take their seats. Peers by inheritance simply take their seats.

III and IV. If any practice has obtained in the New Jersey senate of passing upon credentials of senators–elect, it has no warrant of law, and is not obligatory. On the contrary, it is a breach of the constitution.

What says the constitution? “Members of *732 the legislature shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation.” Then comes the oath comprising allegiance to the Union, to the state, and faithful discharge of his official duty, and the section proceeds: “And members–elect of the senate or general assembly are hereby empowered to administer to each other the said oath or affirmation.”Article 4, § 8, par. 1. Taking this oath, or producing it in an assembly of a quorum, is the initial act of organization of the body. It does not complete organization. Something more is necessary before the body is “ready for business.” That the quorum must do. They must elect a president and a secretary. They notify the governor and the house of assembly. Communications of like readiness in reply come from the house, and then the legislature can act.

We return, then, to this provision of the constitution, and ask: If a practice has obtained in our senate of passing upon credentials of members–elect, giving hold–over members the right to sit and admit members–elect, and, as argued, the right to refuse or delay, is it not a breach of the constitution? If a man comes, bearing a certificate that he is a member–elect, and an official oath is taken, or has been taken, by him, administered by a fellow member–elect, is not that man a senator, entitled to take his seat, and without legal right on the part of any other man to say him nay? And, more, is it not true that a practice or custom by which holdover members regard only themselves as the senate is forbidden by the constitution? That this is so, and that no rights exist through the hold–overs forming a “continuous body,” appears from the fact that this provision of the constitution applies to both houses. The house of assembly being elected annually, no such question can there arise. There is nobody but the members–elect who can act in the organization. Yet the provision is emphatic and clear: “Members–elect of the senate or general assembly are hereby empowered to administer to each other.” So the practice in the house, necessary because there are no members but members–elect, is to be the practice in the senate.

Article 10 of the constitution is as follows: “It is hereby declared and ordained that the common law and statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitation or be altered or repealed by the legislature.” Now, at this time (1844) there subsisted a statute passed in 1839, entitled “An act to regulate elections.” It regulated the whole subject of elections. By its seventy–eighth section it directs the county clerk to certify the result under the county seal, and deliver the certificate to each member; and by section 94 it provides that, “in the organization of each house, the certified copies of the statements of determination made under the direction of the 78th section shall be deemed and taken to be prima facie evidence of the right of the persons therein mentioned to seats in the houses, respectively, to which they will have been so determined to be elected.” P. L. 1839, p. 229. This act then becomes, by the constitution, a temporary part of it. It is not repugnant to it. It had not expired by its own limitation. It was not altered or repealed by the legislature September 2, 1844, when the constitution went into force. It remained upon the statute book untouched for several years. In 1844 an act was passed adding to the section, but renewing this part of it. During this period the senate convened several times The enactment had the force of all statutes, and, besides, the force of the constitutional adoption and confirmation. Does it not, in combination with the section empowering members–elect to administer the oath of office to each other, settle the question that the late practice of the senate, if it be as described and contended for, is contrary to the constitution, abolishing all argument based on the theory, whether true or false, that the senate is a continuing body? For, the two provisions, taken together, say: “There shall be no question when senators, hold–over and elect, convene for organization, as to the credentials held by those who attend. In organization, these credentials shall be deemed and taken to be prima facie evidence of the right to seats of those who bring them. There is no right, then, to go behind them, and those who bring them are hereby authorized—that is, directed—to administer the oath of office to each other.” This act of 1839 was followed in 1846 by an act to regulate elections, approved April 17, 1846, the ninety–sixth section of which re–enacts section 94 of the act of 1839, with an addition. P. L. 222. It is printed also in the Revision of 1847. It reads as follows: “96. And be it enacted that the senate and general assembly shall convene and hold their sessions in the state house at Trenton; and in the organization of each house, the certified copies of the statements of determination made under the direction of the 79th section of this act shall be deemed and taken to be prima facie evidence of the persons therein mentioned to seats in the houses respectively, to which they shall have been so determined to be elected.” “So determined to be elected.” Every word is important. The election, the right of the member, was determined by the canvassing board, officer, or officers. The certificate of it is a judgment of record, estopping all denial, save that afterwards, when there is a “house,” it shall be the judge of the elections, returns, and qualifications of its own members. The section remains the law. It was re–enacted in the last (1876) Revision in the same words. R. L. p. 353, § 85. How any such practice has sprung up as that alleged to exist in the senate, in the face of these enactments, the constitution and the statutes regulating elections, is difficult *733 to comprehend. It did not begin its sessions thus. The senate journals for 1845, 1846, 1847, and the evidence of Mr. Daniel Dodd, the first secretary of the New Jersey senate, show this, and show also that the practice then begun was according to the constitutional and statutory requirements.

The journals read as follows:

“Trenton, Tuesday, January 14, 1845. This being the time and place appointed by the constitution for the annual meeting of the legislature, the following members of the senate, viz. [eighteen names,] appeared in their seats. John C. Smallwood, Esq., of the county of Gloucester, produced a certificate of election as a member of the senate for the county of Gloucester, which certificate was read and approved. Whereupon he took and subscribed the affirmation prescribed by the constitution and laws of New Jersey, before the Hon. Alexander Wurts, one of the members of the senate–elect, and took his seat in the senate. [Other senators] severally produced certificates of their election as members of the senate of New Jersey, from their respective counties, which were severally read and approved; whereupon they severally took and subscribed the oaths and affirmations prescribed by the constitution and laws of New Jersey, before the Hon. John C. Smallwood, and took their seats in the senate. The members of the senate present, having all been sworn or affirmed, proceeded to the election of a president of the senate. President elected, and other officers elected, and senate communicated with governor.”

“Trenton, January 13, 1846. This being the time and place appointed by law for the meeting of the legislature, the following members of the senate, viz. [all the hold–overs and senators–elect.] The senate having been called to order by the late secretary, Mr. Hulme moved that the Hon. Alexander Wurts be appointed president of the senate pro tempore, which motion was unanimously agreed to. The president pro tempore having taken the chair, Mr. Hulme presented the credentials of the Honorable Stephen R. Gower, from the county of Essex, which were read and approved; and, the oath prescribed by law having been administered to Mr. Gower, he took his seat in the senate. Ditto of newly–elected senators. The members of the senate present, having been all sworn or affirmed, proceeded to the election of a president of the senate for the present session.”

Trenton, January 12, 1847; January 11, 1848. The same course was pursued these years as in the year 1846.

In 1849 the new practice seems half begun. The hold–overs are stated to have appeared in their seats. The secretary of the last senate called to order. Then one of the hold–overs, on motion, was made president pro tempore. Then one of the hold–overs presented the credentials of a member–elect, which were read and approved; “and, the oath prescribed by law having been administered to him by the president pro tempore, he took his seat in the senate.” So with others newly elected. Then, the journal proceeds, the newly–elected members of the senate having been all sworn or affirmed, the senate proceeded to the choice of a president for the present session.

This is the first time when any one as president pro tempore administered the oath of office. It would seem probable that some one got hold of a journal of the United States senate, and did not notice the difference between its president pro tempore—an officer directed to be created by statute—and one who was a mere chairman of an unauthorized meeting, taking the place of president over such members as appeared in their seats to facilitate an orderly organization. And so the use of the word “approved”—an entirely incorrect word to express the only fact, to wit, that the credentials as read appeared to come from the right source; a word not found in the early minutes of the United States senate—was a mistake. There was no more right to approve than there is in a judge to approve the record of a judgment put in evidence by its production before him; yet it could mean nothing more than that it was in form. Yet, what right had a president pro tempore, as such, to administer the official oath? He did not have it by the constitution, as such, I say. I will not here argue, for it is unnecessary, that he was not a member–elect, and therefore could not swear members–elect in. That would perhaps be giving too narrow a meaning to the phase “member–elect.” And yet the statutes are curiously drawn on this subject. The act relative to oaths and affidavits, (Revision, p. 740,) passed 1857, allows (section 1) all necessary or proper oaths to be taken before a number of officers, but provides that it shall not apply to official oaths required by any officers of this state. Section 4 authorizes the president of the senate to administer oaths in any matter or case under examination, but it does not mention the official oaths of members. The act prescribing oaths of public officers (Id. p. 901) begins with prescribing the oath of allegiance, and (by section 9) empowers any member of the senate or general assembly to administer the oath of allegiance to his fellow members of the same house. But there is no authority given to administer the official oath. So there is more doubt as to the right of the president of the senate, or pro tempore, as such, to administer oaths of office to members–elect than there is of their right to do this to each other. I do not see where either gets his right, except that any member elected comes within the description “member–elect.” The result of all this is that the method of organization adopted by the holdover senators had not the warrant of the constitution of New Jersey or of its statutes, and was, besides, dissimilar to that with which the New Jersey senate began, and to *734 that which the United States senate has practiced from 1789 to 1849, if not to the present day. And a rightful inference is that, for this reason, there was no lawful claim on the four hold–over senators or the seven senators–elect to remain with the nine hold–overs who convened, and still convene, as the senate of New Jersey, and that this convention of the nine or the ten is not only no senate, but it is yet acting contrary to their duty in refusing to join the majority. This is so even if, in any unsubstantial particular, the proceedings of the eleven who elected the respondent Rogers were irregular. Mere irregularity never vitiates, especially when it occurs on the part of those who, by law, have no responsibility for their conduct to any court. A fortiori is it the duty of the Adrain and Daly party to give up their daily and laborious occupation of adjourning, and enter the room where the eleven meet, because the organization by the eleven was and is in strict obedience to the constitution and the laws.

V. But the insistment is that the action of Messrs. Stokes, Skirm, Hoffman, and Smith in leaving their fellows who had taken their seats as the senate in the chamber appropriated to that body broke up a quorum which had existed, and that a senate had convened, wherefore the majority could create no other. In opposition to this, we say that the presence of these four gentlemen there at that time did not make up a senate.

VI. But, even if this action by the four members was secession on their part, still their union with those whose rights to be and act as members the nine denied transferred the locality of the senate. It created a quorum of that body, and its proceedings then and from thenceforth made a senate de facto and de jure, acting from and after that moment lawfully.

Another view may be taken of this action by the 11 members, leading on different grounds to the same result. They started for the senate chamber in full time to get there. They were physically obstructed. But for this they would have been there, not perhaps as early as the energy of the 9 brought about, but by 3 p. m. They were half an hour late, and their ingress there was far from dignified. The 9 had assembled. What of that? They were not a majority of 21. They had chosen a chairman for themselves. What of it? They had passed, or did pass, a resolution claiming authority to determine upon the rights of certificated members–elect. None of their action was senatorial. None of it was legal. The 11 rescinded what had been done. They might have stayed there, and physically fought out the difference between them. They did not. They simply went into a cloakroom, and then carried out the rescission. They were senators, all of them, because certificated. They were the majority. Like conduct was confirmed in State v. Foster, 7 N. J. Law, 107; Kendell v. City of Camden, 47 N. J. Law, 67, indorsing this decision, confining it to action during the same day, and so approving it. This view, of course, takes it for granted that members–elect are members. But surely this is so. And see Feurey v. Roe, 35 N. J. Law, 123, where the majority of a board of chosen freeholders, part hold–overs, part members–elect, acted without notice to the minority.

VII. In Kearns v. Edwards, (N. J. Sup.) reported in 28 Atl., at page 723, Mr. Justice Depue says: “The constitution provides, in the second paragraph of section 4, art. 4, that each house shall be the judge of the elections, qualifications, and returns of its own members. The constitution having conferred on the legislative department the power to judge,—that is, judicially determine,—it would not be competent for the legislature to confer that authority on the judicial department of the government.” He refers to Ruh v. Frambach, 47 N. J. Law, 85, where the late Mr. Justice Parker said: “The certificate of election presented to the house is prima facie evidence of the rights of the person holding it. The person producing the certificate issued by authority of the officer or officers issued by law to give the credentials is permitted, in the first instance, to take his seat in the body.” In the case of Feurey v. Roe, 35 N. J. Law, 123, already mentioned, there seems to have been a dispute which led the majority to ignore the minority of a board of chosen freeholders, and elect without notice to them. The case is not very fully reported, but it appears that in this majority were both some hold–overs and some members–elect, and the votes of those elected the officer whose right was in question. The election was sustained. In the case of Kendell v. City of Camden, 47 N. J. Law, 67, also already mentioned, it was held that action by a body, reversing prior action, electing an officer during the session, by electing another, was lawful, and the last man was held elected. Applying this, the action of the 11 is sustainable, as reversing what had occurred before. The cases of Billings v. Fielder, 44 N. J. Law, 381, and State v. City of Patterson, 35 N. J. Law, 190, are also worthy of attention; as, also, the case of In re Contested Election of McNeil, 2 Atl. 341, 111 Pa. St. 235, a well–considered case, arising upon language giving the legislative houses the right to judge as to qualifications, etc., similar to that in our constitution.

S. H. Grey, for Mr. Rogers.

I. The object of the proposed inquiry is to ascertain by what title Rogers holds his office as president. The inquisition can only be made by a tribunal having power to investigate and determine the title challenged. That tribunal is not this court. It is the senate of New Jersey, when organized as a house. The initial inquiry into the question of titles involves the investigation of the “election, qualifications, and returns” of *735 those claiming to be members of the senate. The constitution expressly confers upon each house the sole power “to judge of the election, qualifications, and returns of its members.” This power admits of no division, and is necessarily exclusive. Nor can this court make inquisition far the purpose of deciding whether the senate which, in organizing itself into a constitutional house, elected Mr. Rogers as its president, was or was not composed of a majority of the members of that body, unless it accepts the certificate of election as prima facie evidence of right to a seat for organization purposes.

In People v. Mahaney, 13 Mich. 481, Judge Cooley said: “While the constitution has conferred the general judicial power of the state upon the courts and officers specified, there are certain powers of a judicial nature, which, by the same instrument, are expressly conferred upon other bodies, and among them is the power to judge of the election, qualification, and returns of members of the legislature. The terms employed clearly show that each house, in deciding, acts in a general capacity, and there is no clause in the constitution which empowers this or any other court to review their action.” To the same effect is Dalton v. State, 3 N. E. 685, 43 Ohio St. 652–680. In Robertson v. State, 10 N. E. 582, 643, 109 Ind. 79, which was a case involving a contest over an election of lieutenant governor, Elliott, C. J., said: “In many instances powers of a judicial nature are conferred upon the legislature, and it has always been held that, where such power is conferred, it is exclusive and supreme.” See, also, Clough v. Curtis, 10 Sup. Ct. 573, 134 U. S. 361, 371; Sinking Fund Cases, 99 U. S. 700–718; Story, Const. § 374; 1 Kent. Comm. pp. 221–235; Cooley, Const. Lim. pp. 50, 51; State v. Governor, 25 N. J. Law, 331–351; Pangborn v. Young, 32 N. J. Law, 29, 32, 40, 41; State v. Pritchard, 36 N. J. Law, 101, 112, 113.

So well settled is the rule that there is no judicial supervision over the legislative department in the discharge of its duty that Throop, in his work on Officers, lays it down thus, (section 793:) “A very obvious principle of public policy exempts members of the state and national legislature from judicial supervision in the performance of their legislative duty.” And again, (in section 814:) “A mandamus will not lie against a member of the legislature to compel his action with respect to a matter pertaining to his legislative duty. Thus, it cannot be granted against the speaker of the assembly, upon the application of a member, to compel him to send to the senate a bill which the relator insists has duly passed the house, and which the speaker insists has not duly passed.” See, also, Ex parte Echols, 39 Ala. 698.

II. Is the office of “president of the senate” an office of the state of New Jersey as an organized government, one of the “civil offices” spoken of in the constitution, or is it an office of the legislature only, one of the co–ordinate branches of the state government? If the latter, can this court, under any circumstances, inquire into the title by which it is held? By article 4 of the constitution, the legislative power is vested in a senate and general assembly, and provision is made for the election to these legislative bodies of such persons as possess the requisite qualifications, which are age, the right of suffrage, citizenship, and inhabitancy. The two legislative houses have each the power “to choose its own officers, determine the rules of its proceedings,” and punish or expel its members. Article 4, § 4, par. 3. And every “officer of the legislature” is required to take an oath, the form of which is prescribed in the constitution, “before he enters upon his duties.”Article 4, § 8, par. 2. The “president of the senate” is an officer described in the constitution, (article 4, § 4, par. 7,) and, in virtue of that office, receives an additional compensation, equal to one–third of his allowance as a member. By article 7, § 2, provisions are made for the appointment or election of all civil officers who are to be “commissioned by the governor.” Paragraph 10: Their “terms of office *** shall commence on the day of the date of their respective commissions; but no commission shall *** bear date prior to the expiration of the term of the incumbent of said office.” That the members of the legislature should be absolutely incapable of holding any other state or federal office is expressly provided by article 4, § 5. We have, then, an office created by the constitution, for the express purpose of making the legislative power effective, whose incumbent must possess, as his sole qualification, the character of a legislator, whose title rests entirely upon that of his fellow members, who is chosen from and exercises his official function wholly among them, whose compensation is based upon theirs, whose official oath defines his functions and duties as those appertaining to the exercise of legislative power, and whose term is limited by that of the legislature of which he is a member. Can it be said that such an officer holds an office of the state of New Jersey as an organized government? He is but the “mouth of the house” which elects him. May, Hist. Parl. 195. His duties are all associated with and inseparable from that house. See them defined in Cush. Parl. Law, § 291. The president of the senate holds his office by the warrant, not of the state government, but of the people, who organized that government. They expressed in the constitution, which they made, their purpose to confer upon one branch only of the three co–ordinate governmental agencies the power to make laws. They separated that branch wholly from the other two. They invested it with the only creative power, as all legislative action essentially is, which they were willing to delegate to their agents; and they, in terms, excluded *736 this, the highest field of sovereign power, from the possibility of interference from or invasion by any persons belonging to or constituting either of the other departments, and by the same article preserved the executive and judicial departments, in the exercise of their proper functions, from invasion by the legislature. Says Judge Cooley, in his work on Constitutional Limitations, (page 133:) “There are certain matters which each house determines for itself, and in respect to which its decision is conclusive. It chooses its own officers, except where, by the constitution or statute, it is otherwise provided. It determines its own rules of proceeding. It decides upon the election and qualifications of its own members.” Here it will be seen that the choice of officers is put upon the same plane with the unquestionable legislative powers possessed and used exclusively by the legislature of judging of the “title” of members, and adopting “rules.”

How, then, can it be said that such an office as this is an office the title to which may be inquired into as if it were one of the civil offices of the organized state government? Nor does the constitutional provision that the president of the senate shall assume executive functions (article 5, §§ 12–14) indicate that his office as president is other than a purely legislative one. These provisions against the inability of the governor to act are simply means of transmitting eo instanti the executive function, not the office of governor, when the contingency guarded against occurs, to a person designated by the description of the legislative office he holds. In the event of his temporary assumption of executive duty, he is not described as the “governor,” but he is described as the “person administering the government.” Article 5, §§ 8–10. If it were designed that he should fill the executive office, the functions of which he assumes by virtue of his title to the legislative office which he held, there could be no occasion for the provision to fill the executive office by an election, as there is, but the president of the senate would be governor for the unexpired term. The provision, however, is that he administers the government until “another governor shall be elected and qualified,” (article 5, § 12;) thus clearly drawing the distinction between the occupancy of an office and the temporary assumption of its duties. But if the president of the senate were to be regarded as a governor, filling that office, instead of merely administering the government by the exercise for a time of its functions, could his title as governor be here questioned? The provisions of article 5, § 2, would seem to exclude this court from such an inquiry, because “contested elections for the office of governor shall be determined in such manner as the legislature shall direct by law.” This is an indication of an intent to exclude purely judicial inquiry into the title to the executive office, emanating directly from the people, as an independent branch of the government, and to give exclusive control over the method of determining that question to another branch of the government, also directly emanating from the people, i. e. the legislature. That power the legislature has exercised by statute. Revision, p. 353, § 88 et seq. It cannot be claimed that the power of investigating the king's title to his crown ever vested in the king's bench, or that it was there when this state declared its independence of Great Britain, and so this power is not derivative by our supreme court from any claim of unlimited potentiality in that court. Another evidence that the presidency of the senate is a purely legislative office, and not an office under the organized government of the state, described in the constitution as a civil office, is found in the fact that no commission from the governor is necessary to its full investiture, as is the case with “all officers elected or appointed pursuant to the provisions of the constitution.”Article 7, § 2, pars. 10, 11. No commission ever issues to the presiding officers of either house, nor to the governor himself; and for the same obvious reason they draw their titles directly from the people, as independent agents in the triunity of state government.

III. Another reason why this court cannot take jurisdiction over this matter by a writ of quo warranto is that the question presented is a purely political one, and not in any sense judicial. The president of the senate is a member and presiding officer of a political body. The whole function of legislation is political, essentially. In Penn v. Lord Baltimore, 1 Ves. Sr. 444, Lord Hardwicke, Ch., declared that the court of chancery had no original jurisdiction on the direct question of the original right of boundaries of political provinces in the American colonies, and that the power to establish the boundaries was in the king and council; but in this case he took jurisdiction of the subject–matter of controversy because it grew out of a valid contract made in England, over which contract, and the private rights created by and flowing from it, he had jurisdiction. In the case of Nabob of Carnatic v. East India Co., 1 Ves. Jr. 371, 2 Ves. Jr. 56, it was held that the question presented was political, and involved no private rights. The court refused to take jurisdiction, upon the objection to its jurisdiction being raised. The same doctrine was recognized by the supreme court of the United States in the opinion of Chief Justice Marshall in the case of Foster v. Neilson, 2 Pet. 306, who said: “The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided. Its duty commonly is to decide upon individual rights, according to those principles which the political departments of the government have established.” The same principle is declared in the following cases: *737 Williams v. Insurance Co., 13 Pet. 420, (McLane, J.;) Kendall v. U. S., 12 Pet. 524; Georgia v. Stanton, 6 Wall. 50; Gelston v. Hoyt, 3 Wheat. 246, 324; U. S. v. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat. 52; Garcia v. Lee, 12 Pet. 511–520; Williams v. Insurance Co., 13 Pet. 415; U. S. v. Yorba, 1 Wall. 412–423; U. S. v. Lynde, 11 Wall. 632–638; and in the very recent case growing out of the disputes touching the jurisdiction over Behring sea,—In re Cooper, 12 Sup. Ct. 453, 143 U. S. 472, 503. See also, opinion by Judge Woodbury in the great case of Luther v. Borden, 7 How. 1, which was the outgrowth of the Dorr Rebellion in Rhode Island, and turned upon the question as to whether the new or the old constitution of the state was the organic law.

IV. But, assuming that the court desires to have the views of counsel upon the situation which the facts present, our claim is that Mr. Rogers is the president of the senate, lawfully elected by its duly qualified, elected, and returned members. The senate of New Jersey is not a continuous, perpetual entity, but a body of limited vitality. Under the charter of July 2, 1776, (Wilson's Laws, P. L., art. 7,) it was provided that the governor, who was elected for one year, “shall be constant president of the council, and have a casting vote in their proceedings; and the council themselves shall chose a vice president, who shall act as such in the absence of the governor.” The power to convene the council was in the governor or vice president, but it “must be convened at all times when the assembly sits.” Article 6. The speaker of the house of assembly had power to convene that house, if the assembly had empowered the speaker so to do, “whenever any extraordinary occurrence shall render it necessary.”Article 5. These powers of convention were not indicative of the continuity of either house as an organized body, because they were both elected “yearly and every year.” Article 3. Nor was the fact that the governor (who was elective by the council and assembly for one year) was the “constant president of the council,” with a casting vote, any evidence of a continuity of character in the council. As neither the council nor the governor had any official character beyond one year, there could not be the same body continuing from year to year. What there was was a body which, during the official life of its members, was continuously organized, because the charter provided for it “a constant president,” hence there was always a council, perpetually clothed with power to act, and ready for action whenever convened by its “constant president” or its own “vice president.” There were reasons for this condition of things at that time. The functions of the council were both legislative and judicial. It, with the governor, was then the court of “last resort in all causes of law.” But, when the constitution of 1844 came to be made, a marked difference is apparent. There is no provision for continuous organization of either legislative house. The governor is no longer a “constant president” of the upper house, with a casting vote. Neither does the senate exercise the ultimate judicial power as a “court of last resort in all causes.” On the contrary, the legislative year is defined (article 4, § 1, par. 3) as beginning on the second Tuesday of January next after the general election, when “the two houses shall meet separately, *** at which time of meeting the legislative year shall commence.” Here we have an express declaration of the “time of meeting,” coupled with a statement that at this “time of meeting the legislative year shall commence.” While this language is not substantially different from that of the old charter, which is that “on the second Tuesday next after the day of election the council and assembly shall separately meet,” (article 3,) the omission in the new constitution of any provisions for a continuous organization of the upper house or senate is to me conclusive that a new organization should be annually made, and that no power existed in the body which was transmitted from one year to another, of any sort. There could be no power in the senate as a legislative house until it had, by its organization, become a house, as distinguished from a collection of members, qualified to act in effecting an organization of themselves into a house. Hence until there was an organization there was no house, which alone was empowered to “judge of the elections, returns, and qualifications” of its members, (article 5, § 4;) and, consequently, as all stood upon a plane as to the source of their title as members, all were equally qualified to act in accomplishing an organization. This is true of the house of commons, for, upon the assembling of a new parliament, each member participates in the organization, by reason of his election only. The evidence of that election is the return book, in which the clerk of the house records the names of those gentlemen which are returned to the clerk of the crown in chancery, and by him transmitted to the clerk of the house, who holds office for life under royal appointment. These members all vote in selecting a speaker before any of them are sworn. Hurdle v. Waring, L. R. 9 C. P. 435, 43 Law J. C. P. 209, 212, 213.

The senate is composed of one senator from each county in the state, elected by the legal voters of the counties, respectively, for three years. Article 4, § 2. The provision for the division of the original senate into three classes was designed to secure annually the election of one–third of the whole body by the people. The title to the office must necessarily be drawn from the people, who, as “the legal voters of the counties, respectively,” elect the senator from that county. The evidence of that title is the election, and the evidence of that election is the return *738 which the law requires to be made, and which is described as a “statement of the determination” of the “board of the county canvassers,” (Revision, pp. 346–348;) and, “on the organization of each house,” certified copies of these “statements of determination” shall be deemed and taken to be prima facie evidence of the right of the persons therein mentioned to seats in the houses respectively to which they shall have been so determined to be elected,” (Id. p. 353, § 85.) So that we seem to have provided by the constitution a method of determining the fact of that election for the purpose of “the organization of each house” of the legislature, and thus it seems that we find in the constitution and law, as they now are, and for more than 50 years have been, a sufficient and clear explanation of the invariable rule heretofore pursued in organizing the senate. If, then, the constitution and the statute are to guide the senatorial footsteps in the organization of the senate, the way should be as clear now as it has always heretofore been. The newly–elected senators would have the right to participate in the organization of the senate upon the exhibition of “certified copies of statements of the determination” of their election. This view, it will be seen, excludes the idea of the exercise by the senate of any judicial function, when assembled for organization only, and thus there does not seem to be, under our states system, any senate, existing continuously as an organized body, clothed with perpetual legislative power, including the power which is invested in it only as a legislative house, completely organized, and capable of exercising its full constitutional functions, to be the “judge of the elections, returns, and qualifications of its own members.” This latter power is not given to the older senators, erroneously described as “hold–overs,” nor to the senators–elect, but to the completely organized senate, which is described in the constitution as a house, (article 4, § 4,) a majority of which “shall constitute a quorum to do business.” How, then, can it be legally or logically claimed that there is a senate which, as a senate completely organized, is continuous in character, and clothed with legislative power or senatorial authority perpetually? If this be so, why does the constitution secure to the people, by the annual election of one–third of this continuous body, the power to destroy a chrysolite so perfect in all its parts by the introduction of new and possibly discordant elements? Why does the constitution prescribe a legislative year for the continuance of a legislative body, consisting of a senate and general assembly, the members of which shall be “elected yearly and every year, *** and meet separately on the second Tuesday in January” next after the election in November, at “which time of meeting the legislative year shall commence?”Article 4, § 1, par. 3. One would suppose that if a legislative year commenced for both the senate and assembly, as by this express provision of the constitution it does, it would scarcely be possible that one of the bodies—the senate—was eternal, without beginning and without end. I am unable to see upon what ground, under the constitution and law of New Jersey, there can be such a thing as a continuous, never–ending legislative body; and, if there is no such body, then, the senate requiring, as it does, organization each year to make of it a constitutional house, that organization must precede its creation as a house, capable of recognition or action as a legislative body, and in this organization members–elect, holding “certified copies of the determination” of their election, have had secured to them by the statute a right to a seat, and, being so entitled to a seat, they can lawfully participate in its organization, as is their duty to those who elected them. The power to organize the senate is in all those who are elected to its membership and who present the statutory credentials. The power “to judge of election returns and qualifications of its own members” is not conferred on individual senators, but upon the collective body. It is given by the constitution to each house, and, as already shown, there is no house until an organization of that house, which is the act welding its elements, its members, into a homogeneous body, has been effected. Then only, and not before, there is given to the house the power to judge of the “election returns and qualifications of its members.” Who are its members? Are they those only whose title is more than one year old? This cannot be if “certified copies of statements of determination” of election are valid, prima facie evidence of membership for purposes of organization. The members who participate in organizing are those who produce, or who have before produced, certificates of election. These are the members whose title after organization may be inquired into by the organized body,—the house. If they were not such members, there would be nothing for the organized house to investigate. The power given is to “judge of the election returns and qualifications” of these very members who, with prima facie evidence of title only, are subject to have that title challenged by a claimant, and judged by the house. There is a provision in our state constitution which is not to be found in the federal constitution. It has sufficient pertinence to the subject under consideration to warrant a reference to it. The provision is this: “Members of the legislature shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: *** And members–elect of the senate or general assembly are hereby empowered to administer to each other the said oath or affirmation.”Article 4, § 8.

I have gone far enough to show that the title to the senatorial office is drawn from *739 the people directly; that the statute law provides a way, by certified copies of determination of election, to evidence that title; that those persons who hold that evidence are entitled to seats for the purpose of organizing the senate; and that as members–elect, empowered and entitled to swear in each other, there is a clear constitutional recognition of their right thus to qualify themselves to participate as members–elect in the organization of the body. The character and value of certificates of election as prima facie evidence of the fact of election is universally recognized by legislative bodies and by courts. McCreary, Elect. §§ 509–586. In section 586, when dealing with organization of legislative bodies, (chapter 18,) Judge McCreary lays down this doctrine: “It is to be observed in the outset that when a number of persons come together, each claiming to be a member of a legislative body, those persons who hold the usual credentials of membership are alone entitled to participate in the organization; and if it is, as we have had occasion several times to repeat, a well–settled rule, that, where there has been an authorized election for an office, the certificate of election, which is sanctioned by law or usage, is the prima facie written title of the office.” This doctrine is affirmed in all the courts. See State v. Van Camp, (Neb.) 54 N. W. 114; also, 21 Cong. Rec. pt. 3, pp. 2906–2910; In re Gunn, 32 Pac. 470, 948, 50 Kan. 155–175, 179.

V. Mr. Rogers was elected as president by the majority of all the members of the senate certified and sworn, and so is entitled to his office. As the senators, in organizing themselves into a house, could not look beyond the “statement of the determination” of election to ascertain who were entitled, for purposes of organization, to seats in the senate to which it had been determined they were elected, and as Mr. Rogers' title to his office rests upon his election by the members of a body composed of those whose prima facie right to vote is not challenged, the judgment of the court must necessarily be that, looking at the evidence which those who elected Mr. Rogers were bound to consider and be controlled by, and which on this rule controls this action of this court, he was lawfully elected to the legislative office which he fills. Nor can the practice of the senate heretofore affect the question if that practice is inconsistent with the statute, for the statute is the law of the legislature, and not of the senate only. It cannot be disregarded by either house, for such a disregard would be tantamount to a repeal by one house of an act of both which the governor had approved. This is true in England, where it is said by Hatsell, in his Precedents of Proceedings of Parliament, “that a rule laid down by the house of commons as a regulation of themselves cannot supersede the directions of an act of parliament.” 2 Hats. Prec. p. 167.

VI. It may be well to examine into the question whether there is such a position as that of temporary president, which Mr. Adrain claims to be an office. The action of the minority of the members of the senate here under inspection was to select a president pro tempore in the process of organization. This selection was made before a majority of senators, old or new, had arrived; hence, as the action was not that of a quorum, it was absolutely ineffective to make the position of temporary president, or to fill it if made.

VII. The only power given to a minority of the members of the senate by the constitution is the provision of article 4, § 4, that they may adjourn from day to day, and may be authorized to compel attendance of absent members.

VIII. No argument can be drawn in support of Mr. Adrain's position from the fact of the presence in the senate chamber of a majority of the senators. They went there to organize. They found an apparent organization. They denounced it as an usurpation, and, to avoid a breach of the peace, withdrew to another part of the senate chamber, inviting the nine gentlemen to join them, and there organized the senate by the election of Mr. Rogers as president, Mr. Mott as secretary, and the other necessary officers. It would, indeed, he a new feature of legislative law, more arbitrary than any known ruling, if a dignified protest against an outrageous usurpation could be construed into a participation and acquiescence in the wrong upon the people of this state committed by this flagrant defiance of their lawfully expressed will.

Allan L. McDermott, for Robert Adrain.

The legislative scheme of the constitution contemplates a continuous body, composed of three classes of senators, with their terms so arranged “that one class may be elected every year.” There is nothing in the constitution preventing the election of a president for three years. Article 4, § 4, par. 3, provides that “each house shall choose its own officers.” The senate being a continuous body, it may designate whom it chooses to act as president, during his term as senator, subject to reconsideration. A class goes out each year, but the senate remains. That there may not be an interruption in the life of the senate,—that there may always be two classes remaining.—it is provided that the persons elected to fill vacancies shall be elected for the unexpired terms only. These two ever–existing classes form a senate. No one can become a member of the body except by its action. The constitution provides that each house shall be the judge of the elections, returns, and qualifications of its own members. The argument that the senate, which is to judge of its own membership, must be composed of one member from each county in the state, is fallacious, because article 4, § 2, par. 1, provides that it shall be composed of such senators “elected *740 by the legal voters of the counties;” and it is the decision of this very question, of whether an applicant for membership was elected by the legal voters of the county he seeks to represent, that is committed to the senate. It may judge, first, of the elections of its members. No man is entitled to a seat in the senate unless he is elected to that body. No one can finally say that a senator has been elected except the senate itself. Section 85 of the general election law is invoked to give value to certified copies of election statements. The legislature cannot give to a return any force subtractive from the power of the senate to examine it, approve of it, object to it, or do whatever it will with the paper. A person must not only be elected; he must be qualified. A person applying for admission must have certain qualifications.

The framers of our state constitution designed the state senate as a continuous body; its prototype, in this particular, being the United States senate. The federal constitution makes provision for a president of the senate pro tempore, but this is to meet such emergencies as may arise, and to qualify the constitutional proposition that the vice president shall be president of the senate. The absence of the vice president and the president pro tempore will not disorganize the senate. The framers of the state constitution intended to make the senate an ever–living body. On the 7th of June, 1844, the composition of the senate being under consideration by the constitutional convention, Mr. Vroom said: “The reason, the great object, of fixing the terms of senators at three years, is not only because they are connected with the executive, but by this means the senate will be a more permanent body than the house of assembly. If the senate is elected annually, you will have a changing legislature, as we always have had.” A motion to amend the term of senators from three to two years being considered the same day, Mr. Ogden advocated it, but said: “The reasons given in favor of the permanency of the senate are strong.” Newark Daily Advertiser, June 8 and 10, 1844. Not only was the provision of our constitution suggested by the federal constitution, but the mode of determining the classes adopted by the first United States senate was adopted by the senate of New Jersey. See 1 Benton, Abr. pp. 14, 15; Senate J. 1845, p. 169. The expression of the constitution is not that the terms of senators shall end agreeable to the division, but that their seats shall be vacated. Vacated in what, pray, if not in a continuous body? This provision is in the federal constitution, “so that one–third may be chosen every year.” It is in the state constitution, so that “one class may be elected every year.” One class of what, if not of a continuous senate? Does the fact that the seats of one of three classes are vacated destroy the senate? Does it, for a second, vacate the seats of the other classes? The organization is composed of three classes. Does the retirement of one destroy the body? Does it take from it the right to order elections, to elect officers, to transact business, to judge of the elections, returns, and qualifications of its own members? Is it so impotent that it cannot reject an unqualified applicant for admission? Are not the two remaining classes the senate? To answer negatively is to say that the senate may die although two–thirds of its members exist. This cannot be. Those whose seats are not vacated remain the senate. They are the organization. They are the judges of the elections, returns, and qualifications of their membership.

The senators–elect claim that their certificates of election are prima facie evidence of their rights to seats. Evidence to whom? In what tribunal are they to present this evidence? Not in this court, because it cannot pass upon their titles. Where, indeed, but in the senate, which is the only judge of the weight of that evidence? And, when this prima facie evidence is submitted, its probative force is neither more nor less than is accorded by the tribunal which is to pass upon the evidence. Section 85 of the election law was enacted in 1839, (Harrison's Laws 1834–43, p. 368,) and was intended to apply to the conditions as they were found under the constitution of 1776. Then the legislature was composed of a legislative council and general assembly. They were each chosen every year, and they chose, at their first meeting, a governor for one year. In consequence of these provisions, there was not any organization which did not expire within the year that witnessed its inception. The council was then, as the house of assembly is now, annually elected; and as there was not any one to pass upon elections, returns, and qualifications, as there was not any continuing council, it was entirely competent for the legislature to say who should have a seat at the organization. The constitution of 1846 added to the judicial power of the houses. It provides that they shall be the judges, not only of the elections and qualifications of their members, but of their returns,—of the certificates of their election,—and I submit that the adoption of that constitution repealed this provision of the act of 1839. Its re–enactment under the new constitution, if it was intended to serve the purpose claimed, was unconstitutional.

The argument for Mr. Rogers is: The constitution says that the senate shall be the judge of the qualifications, etc., of its own members, and that the senate shall be composed of one senator from each county; therefore it is necessarily a senate composed of 21 members that is to do the judging; and that the rights of a claimant cannot be the subject of senatorial scrutiny until he has been inducted. The contrary is the constitutional proposition. He must be elected, and the judgment of the senate given upon his *741 election. He must be qualified, and the judgment of the senate must be given on his qualifications. Constitutional provision is made for the election of a successor in case of the death or resignation of a senator. Take the case then presented. A special election is held; a candidate returned. Can he walk into the senate, present his credentials and oath of office, and thereupon successfully demand that his name be placed upon the roll?

I now come to the title of Robert Adrain, and I submit that he was elected by the senate, even if the four hold–over Republican senators had not entered the senate on the 9th of January. At the first moment of that day the membership of the senate was reduced to thirteen members. A majority of these constituted a “quorum to do business.” Seven members constituted that majority. These thirteen members were the senate of New Jersey. Their proper place of meeting was in the senate chamber, and they were entitled to meet there at any time after 12 o'clock on the night of January 8th, and form not only a temporary, but a permanent, organization. They were and are the senate of the legislature of 1894. Nine of these thirteen members met at, or within two or three minutes of, 3 o'clock, in the senate chamber, and elected a president. They were not bound to wait for the four other members. They were a majority of the then existing senate. The membership of that senate could not be increased by the action of the gentlemen who were swearing themselves in at the Windsor Hotel. The oath of office should not be administered until the right to a seat has been decided. To give assent to the proposition that a senator–elect becomes a senator by taking the oath of office might result in grave complications. A candidate becomes a senator–elect by the declaration of a county board of canvassers. Learning that his election will be contested, he takes an oath before another senator–elect. The contest results in a revocation of the canvasser's certificate by a justice of this court. What efficacy remains in his oath of office? The taking of the oath can have no effect upon the powers of the senate to determine its membership.

If the four Republicans had remained with the nine Democrats to this day, would the thirteen have constituted a senate? And, if so, what would be a quorum of that senate? Could not the thirteen hold–over members meet this day and legislate? And, if they did, would they not be the senate? And if they are the senate, or were the senate on the 9th of January, are not nine a quorum of that senate? State v. Farr, 47 N. J. Law, 208; Mueller v. Egg Harbor City, 26 Atl. 89, 55 N. J. Law, 247.

The argument that induction is a condition precedent to the exercise of the judicial powers of the senate is absurd. It amounts to saying that the senate can put the holder of a certificate of election out, but cannot prevent him from getting in. The time for judgment upon the qualifications of a senator–elect is when he presents his credentials, for the constitution expressly declares that “no person shall be a member of the senate” who has not certain qualifications.

It is said that the body over which Mr. Rogers presides must be the senate, because there are 21 counties, and each of the 11 gentlemen who recognize him as president and themselves as a senate are a majority of 21. But how did the fifth gentleman get into that body? He answers that he had credentials which were prima facie evidence of his right to a seat. Who passed upon that evidence? Each gentleman must have passed upon his own case. Each adjudicated that his election and returns were all right, and that he was qualified. But prima facie evidence is not conclusive, and, if the position taken for Mr. Rogers is tenable, the body over which Mr. Adrain presides may invite any one who claims to be a senator, from any of the counties in the class whose seats were vacated in January, to present his evidence, adjudicate upon it, and admit him to a seat. If there is any force in the argument that 11 are greater than 10, it is answered by saying that 9 are greater than 4.

Section 85 of the alection law is void. The legislature cannot pass any statute making a return evidence of anything whatever. Each house has the absolute and unqualified right to receive or to reject a return. The right to judge the elections, returns, and qualifications of those who apply for admission to the senate cannot be controlled, interfered with, or legislated upon by any action of the house of assembly, whether that action is in the shape of a statute or a resolution. If the legislature had the right to enact this law, and the governor to approve it, why could they not have added, “And the supreme court shall give legal effect to the prima facie evidence thus provided for?” If this statute is sound, the onus probandi is shifted, and the duty is imposed upon the senate of proving, before they can deny an applicant admission, that he was not elected. If it is prima facie evidence, it is conclusive until disproved.

I am asked, “Can the senate seat one who was not a candidate for the office?” May I not answer the question after the manner of the descendants of the Pilgrim fathers, and ask, “Who can question it if they do?” May I not ask, “Cannot the court of errors and appeals in the last resort in all causes decide that not to be the law which that same court formerly adjudicated to be the law?” The senate has the right to oust a senator whom it knows to have been elected by thousands of majority, and to induct one whom not a member voting for the admission believes to have the slightest claim to a seat, and the next senate has the right to undo the wrong. What is the difference between inducting one *742 who was not a candidate and inducting one whom you know has not the shadow of a title to the seat? And if a candidate receives one vote, and his opponent receives ten thousand, and the senate inducts the candidate who received the single vote, is it within the province of this court to even comment upon the action of the senate?

Thirteen senators participated. There was a quorum present, however, even if it is held that eleven members were necessary to constitute that quorum. The senate journal shows this, and the question of whether they answered to their names or not is wholly immaterial. It was the duty of the thirteen members to attend the first meeting of the session at the usual time and place of such meeting. One moment they are here, protesting that they were not present, and the next moment counsel charges that they were prevented from reaching the chamber. They say: “We were present, but did not answer the roll call.” But the roll is called only to find out who is present, not who is ready to proceed to business. Can the four hold–over Republicans present themselves at every meeting, and prevent business by refusing to answer their names?

The court can declare Mr. Adrain president pro tempore of the senate. If the senate is a continuous body, admission to which cannot be obtained against its consent, Mr. Adrain's title is complete. There was a quorum present when it was declared that he should occupy the office until his successor should be chosen. If there were 13 members present when this resolution was adopted, Mr. Adrain's position is as unassailable as that of any man who ever presided over the senate. And the 13 were present, in law and fact. If he was not elected, no man can be elected without the consent of the four Republicans. I have been unable to find any suggestion of a law or rule, governing parliamentary proceedings, which will reduce the number of the senate, at the time that vote was taken, below the number 13. The law says they were present. It being established that the resolution was adopted by a senate, the possibility of another senate is excluded, and any person acting as president of that other body is without right to claim that he is president of the senate of New Jersey.

Frederic W. Stevens, for relator.

We contend that neither Mr. Adrain nor Mr. Rogers has been elected to the constitutional office of president of the senate. We say that Mr. Rogers has not: (1) Because the senate of New Jersey is a continuous body, and that it is to that body that the senators–elect must come and present their credentials. They cannot, with a minority of hold–over senators, leave the body, and go off and organize by themselves. (2) Because, whether the senate is or is not a continuous body, the hold–over senators remain as an organized nucleus, which receives, and which alone is competent to receive, the new members, who must come and attach themselves to it. We say, on the other hand, that Mr. Adrain has not been so elected, because a minority of the whole number of members is without power to elect a president of the senate. The constitution provides that the senate shall be composed of one senator from each county in the state, (article 4, § 2,) and that a majority of the senate—i. e. a majority of the senate so composed—shall constitute a quorum to do business, (article 4, § 4.) In the case in hand, 4 hold–over senators left the lawful body, then consisting of 13, before it was permanently organized. The part that remained was therefore without power to pass the resolution which declared that the president pro tempore should hold the office of president until the election of his successor.

We are met at the outset with an objection to the jurisdiction of the court. The language of the quo warranto act is general. It extends in terms to every office. If it does not in fact extend to the office of president of the senate, this can only be because that office has, by the terms of the constitution, been expressly or by implication excluded from the operation of the act.

I will consider (1) the nature and purpose of the quo warranto act; (2) the provisions of the constitution bearing upon the office of president of the senate.

I. While our act is in most other respects a copy of the statute of Anne, it differs from it altogether in respect of the extent of its application. The statute of Anne extends only to corporate offices. Our act extends to all offices. The course of decision is uniform on this point. State v. Parkhurst, 9 N. J. Law, 437; State v. Utter, 14 N. J. Law, 84; State v. Crowell, 9 N. J. Law, 390; State v. Paterson & H. Turnpike Co., 21 N. J. Law, 10; State v. Gummersall, 24 N. J. Law, 529; State v. Tolan, 33 N. J. Law, 198; Bownes v. Meehan, 45 N. J. Law, 196. In State v. Paterson & H. Turnpike Co., Judge Carpenter says: “The language of our statute is more extensive than the statute of Anne, and applies to the intrusion into or unlawful holding of any office or franchise within this state.” And Chief Justice Beasley, in Bownes v. Meehan, supra, says: “Instead of giving the remedy in a limited class of cases, our act in this respect is entirely unrestricted.” There can, then, be no doubt that the statute in terms covers the case of all offices. It certainly cannot be denied that the president of the senate is an officer. He is not only an officer, but a constitutional officer. Const. art. 4, § 4, par. 7; Id. art. 5, par. 13. Each of the defendants not only claims, but has entered upon the performance of the duties of, the office. Mr. Rogers has taken the oath of office prescribed by the constitution, (article 4, § 8,) and such oath, without user, is a sufficient foundation for the information. *743 Rex v. Tate, 4 East, 337; High, Extr. Rem. § 627.

II. Do the constitutional provisions relating to the senate or the president of the senate deprive the court of its jurisdiction to try the title to that office? As the president of the senate holds an office, and as the quo warranto act applies in terms to all offices, this court must have jurisdiction, unless some constitutional provision takes it away, or unless the court declines to take jurisdiction on some ground of political expediency. It must be borne in mind that the court is not asked, in this case, to interfere with the action of the senate of New Jersey. There are two persons before the court, each of whom claims to be president of the senate, and each of whom has been elected by a body claiming to be the senate; but it is plain that there cannot be two senates, and two presidents of the senate, in existence at the same moment. One, at least, of the bodies, cannot be the senate; and one, at least, of the presidents, must be a usurper. Can these usurpers, not existing in conformity with the constitution, claim for themselves the privileges and immunities guarantied by the constitution? What constitutional privileges or immunities do they possess? The moment the court concludes that either of these bodies is the true senate the investigation comes to an end, for my only contention here is that the bodies that elected Mr. Rogers and Mr. Adrain are not the senate. If either of these bodies is found to be the senate, their president is beyond all question the president of the senate mentioned in the constitution.

In the first place, I assert that there is no express provision of the constitution which debars the court from considering the question. There are only two provisions which have any bearing upon it. The first is that which provides that each house shall be the judge of the elections, returns, and qualifications of its own members. This provision obviously relates to the title of members to sit in the senate as senators, not to officers of the senate. We do not attack the title of any senator. There is not the slightest pretense of an effort to interfere with the seating of any senator in any body. All we assert is that one group of senators have attempted to elect Mr. Rogers to the presidency of the senate, and another group of senators have attempted to elect Mr. Adrain to the same office, and that both groups have failed, because neither is in fact the senate. The second provision relied upon is that which declares that “each house shall choose its own officers,” but certainly this provision does not, in terms, take from the courts the power to pass upon the title of president of the senate. As well might it be said that, when the constitution provides that clerks and surrogates of counties shall be elected by the people of their respective counties, it delegates to the people the right to pass upon the validity of the election. Nothing is better settled than that when the legislative body, or an officer of that body, goes beyond its own walls, the ordinary jurisdiction of the law courts attaches. Beyond those walls its adjudication of its powers or prerogatives binds no one. This is well illustrated by the following leading cases: Ashby v. White, 1 Smith, Lead. Cas. 281; Stockdale v. Hansard, 9 Adol. & E. 13; Bradlaugh v. Gossett, 12 Q. B. Div. 283; Kilbourn v. Thompson, 103 U. S. 168; U. S. v. Ballin, 12 Sup. Ct. 507, 144 U. S. 1. The principle is further illustrated by the case of Pangborn v. Young, 32 N. J. Law, 29. These cases show that the courts will not interfere with the action of the senate within its own walls, while it is engaged (according to its own methods of procedure) in discharging its peculiar functions. And if, in the orderly course of procedure, it had chosen a chairman to preside over its meetings and act as its spokesman, it might, perhaps, claim for this chairman immunity from judicial attack. But, the moment it attempted to impose upon the people at large an officer whose duties had no relation to the senate as a legislative body, its acts would be scrutinized and judged in the same manner as that of any other public body or functionary, for the obvious reason that it was then acting, not in a legislative capacity, but as a body of electors, performing identically the same functions as any other body of electors. The limited privilege thus accorded to a body which is conceded to be a true legislative body does not apply to a body which claims to be a legislative body, but is not really so.

But this is not the case of a constitutional senate proceeding in an unconstitutional way, but the case of a body, not the senate, attempting to usurp the functions of the senate in electing a president thereof. Certainly such a body derives no protection in its usurpation either from the constitution or the laws. But it is urged with great earnestness that the question is a political, and not a judicial, question, the point really involved being the status of the two contending senates. In a certain sense, all questions which relate to government, whether they arise under the federal or the state constitution, are political. Thus, questions involving the title conferred upon an officer by an election or appointment, questions concerning the legality of the acts of municipal boards or other public bodies or officers, questions concerning the constitutionality of laws, are political questions, because they are concerned not so much with private right as with the constitution of the body politic, the binding force of laws, and the acts or title of its officers. The court deals with questions like these every day. On the other hand, the case of Luther v. Borden, 7 How. 1, which involved the question of which was the true government in Rhode Island, during the time of the Dorr Rebellion; the case of *744 Georgia v. Stanton, 6 Wall. 50, which involved the status of the state of Georgia under the reconstruction acts; and the case of Jones v. U. S., 11 Sup. Ct. 80, 137 U. S. 212, which involved the inquiry whether the jurisdiction of the United States extended over one of the guano islands,—are illustrations of a class of political questions which the court will not undertake to decide in opposition to the decision of the president, to whom, under the distribution of powers conferred by the federal constitution, the decision properly belongs.

I freely concede that, if the court were asked to do nothing but to make a declaration as to which senate was the true senate, it would be obliged to decline. But it by no means follows that because the court cannot pass directly upon the status of the legislature, or either of its branches, it cannot do so at all. It is the duty of the court to expound and enforce legislative acts, and, in so doing, it must necessarily determine whether what purport to be laws are so in fact. If two bodies, sitting at the same time, both claim to be the legislature, and pass acts, the court must determine which of those bodies is the legislature, in order that it may ascertain whose acts it shall enforce. In doing so it necessarily reviews the claims of the contending bodies, and decides between them, i. e. decides the question which is called “political.” So, too, if each legislature should, under our constitution, proceed to elect a comptroller and treasurer, the court would necessarily be compelled to decide which of the persons elected were really comptroller and treasurer. The question was presented in the Maine and Kansas cases, and in both the court assumed jurisdiction to decide. Prince v. Skillin, 71 Me. 367; In re Gunn, 32 Pac. 470. See, also, Burnham v. Morrissey, 14 Gray, 226. The cases in which the writ has gone against incumbents of the office of governor are directly in point. See State v. Boyd, (Neb.) 48 N. W. 739; Id., 12 Sup. Ct. 375, 143 U. S. 135; State v. Bulkeley, (Conn.) 23 Atl. 186; High, Extr. Rem. § 634; McCrary, Elect. § 347; Cooley, Const. Lim. p. 786. The form in which the question arises—whether it be a suit brought to test the validity of the law, a habeas corpus proceeding, a proceeding to determine whether a comptroller or treasurer have been elected, or a quo warranto proceeding—can make no difference. If it arise in the regular course of a customary proceeding, that is sufficient. In each case the title of the senate is incidentally, not directly, questioned.

Thomas N. McCarter, for Maurice A. Rogers.

This is not the case of a writ filed ex officio by the attorney general without leave, but is a petition by a private relator for leave for the attorney general to file such information. The cases are different, and the proceedings thereon differ. Vanatta v. Railroad Co., 38 N. J. Law, 282; State v. Tolan, 33 N. J. Law, 195; High, Extr. Rem. § 605.

In one aspect of this case, to reach a complete determination of the questions affecting Mr. Rogers' claim of title, it would be incumbent on the court to decide whether the body which elected him as president was a lawful senate of the state of New Jersey, whether its members were duly elected and qualified, and whether, being so elected and qualified, they were lawfully organized, and, being organized, lawfully elected Mr. Rogers their president. This court has no power or jurisdiction to enter upon an inquiry which involves a determination of any of those questions. The proceedings which resulted in his election were of a purely legislative character, with which this court cannot interfere. The court cannot inquire into the election or qualification of the 11 members who compose the majority of the senate, and who elected Mr. Rogers as president. The following authorities establish rules and settle principles which absolutely control this part of the case: State v. Governor, 25 N. J. Law, 331; Thompson v. Railroad Co., 22 N. J. Eq. 111; Kendell v. City Council of Camden, 47 N. J. Law, 64; Pangborn v. Young, 32 N. J. Law, 40, 41, also 35, 46; State v. Frambach, 47 N. J. Law, 85, (followed by Judge Depue in Kearns v. Edwards, [N. J. Sup.] 28 Atl. 723;) People v. Hall, 80 N. Y. 117; State v. Marlow, 15 Ohio St. 114, 134; Hiss v. Bartlett, 3 Gray, 468; People v. Bissell, 19 Ill. 229; McCrary, Elect. § 593, also section 350; State v. Berry, (Ohio,) 24 N. E. 266; 6 Am. & Eng. Enc. Law, p. 387, tit. “Elections;” State v. Tomlinson, 20 Kan. 692; Selleck v. Common Council, 40 Conn. 359; Kerr v. Trego, 47 Pa. St. 295–298, (particularly paragraph 5;) Hartranft's Appeal, 85 Pa. St. 433; State v. Towns, 8 Ga. 360; State v. Jarrett, 17 Md. 309; Cooley, Const. Lim. 131; Mos. Mand. 80.

The next question involved in the supposed proceeding would be the legality of the organization of the body and of the election by such body of Mr. Rogers. This, also, is a legislative question, which has been decided by the legislature itself, and from which decision there is no appeal to the supreme court. When we find a quorum of the senate meeting at the place and on the day required by the constitution and laws of the state, and perfecting an organization, and taking the oaths of office, and electing their presiding officer and other officers, and the house has recognized it and acted with it, it becomes, by those facts, a complete legislature, requiring for its legality the recognition of no other person, and subject to review by no other department of the government. Such recognition was within the designation of legislative or political acts over which, by well–settled principles, the court can have no jurisdiction. *745 Luther v. Borden, 7 How. 1, 51, (opinion of Woodbury, J.;) Decatur v. Paulding, 14 Pet. 515, 516; Kendall v. U. S. 12 Pet. 524; State v. Stanton, 6 Wall. 50; People v. Hatch, 33 Ill. 9; Com. v. Allen, 70 Pa. St. 465; Hartranft's Appeal, 85 Pa St. 433, cited above; Burnham v. Morrissey, 14 Gray, 226; State v. Jarret, 17 Md. 309, cited supra. See also, the dissenting opinion of Judge Allen in the late and well–known case of In re Gunn, (Kan.) 32 Pac. 948. In many of the cases above cited, the question arose as to the power of courts to deal with the election or qualification of members of city councils or other municipal bodies, and, wherever the courts in such cases did assume to exercise jurisdiction, it was upon the distinct ground that the rule recognized by the courts which made the houses of the legislatures or congress judges of the election and qualification of its own members, and which exempted them from supervision by the courts, did not extend to municipal bodies which were the creators of the legislature; and in every instance it was recognized that, in the case of the supreme legislature, courts would have no power to consider the question.

The claim of the prosecutors of this proceeding is that the senate of New Jersey is a continuous body, and has been from its first organization; that, although 6 go out every year, the remaining 15 continue to be the senate, and, when they meet at the constitutional time, they have power to pass upon the qualification of the new senators; that the new senators do not become members until the old members have admitted them. According to this contention, although the constitution says the senate shall be composed of one member from each county, yet, every year when the senate meets, it shall only be composed of one member from each county that has not elected a new one; and whether it will ever be composed of more or not will depend, not on the constitution, but on the will of the members from the 14 counties holding over. If such choose to admit the new ones, all well; if not, their judgment is final and conclusive.

The argument in support of the doctrine is founded on the supposed analogy between the senate of New Jersey and the senate of the United States. In this particular, the distinction between the two is made manifest by the quotation from the attorney general's opinion, from Mr. Cushing's treaties, in which, for the reasons given by Mr. Cushing, he concludes: “The consequence is that at the commencement of each congress there is a presiding officer of the senate, already in office, ready to proceed at once with his duties as such, and without any further authority from the senate. The secretary and other officers of this branch remain in office until their successors are chosen. There is no necessity, therefore, at the commencement of each congress, for the ‘reorganization’ of the senate of the United States, in the ordinary sense of that term. In these points the senate of the United States bears a close analogy to the house of lords.” This view expressed by Mr. Cushing is overthrown, so far as the senate of New Jersey is concerned, by the legislative provision that the senate and general assembly shall convene and hold their sessions in the state house at Trenton; and in the organization of each house the certified copies of the statements of determination shall be deemed and taken to be prima facie evidence of the right of the persons therein mentioned to seats in the house, respectively, to which they shall have been so determined elected. No writer on this subject has ever claimed that the doctrine of a continuous body, as it is contended for in this case, applies to the house. The house organizes each year, or at each meeting de novo, and always has. But this eighty–fifth section provided for the organization of each house, treating both houses exactly alike, and implying that each house will require a new organization every year. The practice in our state from the beginning has always been to re–elect a president at every meeting of the senate, to re–elect the other officers, to adopt new rules, and to take proceedings, all of which would be unnecessary and illogical, if not illegal, if the doctrine of the attorney general were sound. The constitution says: “The senate shall be composed of one member from each county, and that each house shall be the judge of the election returns and qualifications of its own members, and the majority of which shall constitute a quorum to do business.” What is the constitutional house? Is it a quorum of the 21, or is it a quorum of 14? There can be no stronger assertion of the right of these newly–elected members to participate in the organization of this senate than that found in McCrary on Elections, which book is quoted as an authority by the attorney general. In section 282 he says: “There can be no doubt but that a certificate of election regular in form, signed by the proper authority, constitutes prima facie evidence of title to the office, which can only be set aside by such proceedings for contesting the election as the law provides. The certificate, whether rightfully or wrongfully given, confers upon the person holding it the prima facie right to the office. If, however, the certificate contains upon its face a recital of facts, and these facts show affirmatively that the party holding it was not duly elected, it may be disregarded.” Section 283. “The regular certificate of election, properly signed, is, as we have seen, to be taken as sufficient to authorize the person holding it to be sworn in. It is prima facie evidence of his election, and the only evidence thereof which can be considered in the first instance, and in the course of the organization of a legislative body.”

There is enough in this case to justify the court in denying this writ, and refusing to interfere with the title of Mr. Rogers, without *746 exercising the jurisdiction to try his title, or the election and qualifications of those who elected him, and that is, that Mr. Rogers is the president de facto. The position occupied by him is one which has been recognized by the house, and questioned only by the relator in this case,—the governor of the state. If the court finds from the evidence that he was elected by the quorum of the senate, and that the house has acquiesced in such election, and treated his legislative body as its associate in the making of laws, the court can easily find that he occupies the position of president de facto, without passing upon any other question or trenching upon the jurisdiction of the senate; and the ascertainment of that result would necessarily lead to a denial of leave to file this information, because there cannot be the slightest pretense that Mr. Adrain is lawful president of any senate, or ever has been of the present senate. He does not even claim to be anything more than president pro tempore. It is not claimed for him that, by virtue of that appointment, he can exercise the incidental and statutory functions which ex officio belong to the president of the senate. As before stated, he has never been elected permanent president. He has never taken the oath of the office, and has never done anything but to aid in keeping up a purely temporary organization of a minority of the senate. That minority, failing to meet with the quorum and to participate in its action, can have no legislative power whatever. In the case of People v. Hatch, 33 Ill. 164, it is said: “The spontaneous meeting of all the members, except in the case stated, at a time not appointed by law, and without a previous vote for such purpose, would avail nothing. The executive, if he desired, could not recognize it as a legislative body, nor could it perform a legislative act, having any binding authority. This being so, it follows, a less number than a quorum cannot meet and hold a legislative session, no matter under what convictions they may assemble, or what rights they may suppose they can preserved by such meeting. It would be a proceeding not sanctioned by our constitution and laws.”

The court, in the exercise of its discretion, ought not to allow the filing of this information. This is a discretionary power, and the case above referred to of State v. Tolan, 33 N. J. Law, 195, lays down rules regulating the exercise of such discretion. Taking that case as a guide, this leave ought to be denied on several grounds: (1) The application is not made in good faith. The records and evidence show that, as to Adrain, he has never assumed to act as president of an organized senate. He is merely president pro tempore. He has never been sworn into office. (2) The governor and attorney general are estopped from asking for this relief. This court, in the case of State v. Tolan, above cited, said: “In Rex v. Dawes and Rex v. Marten, 4 Burrows, 2122, which are known as the ‘Winchelsea Cases,’ Mr. Justice Yates says: ‘In all questions of this kind one great distinction is always to be attended to,—that these are applications by common relators, who have no inherent rights of prosecution, but, by the statute of Queen Anne, are left to the discretion of the court whether they shall be permitted to prosecute or not. In the exercise of this discretion, the court is not merely to consider the validity or defect of the defendant's title, but the expediency of allowing or stopping the prosecution under all its circumstances.’ In that case, Lord Mansfield, in the exercise of that discretionary power, viewed the facts of the case—First, in the light in which the relators, informing the court of the defect of title, appear from their behavior and conduct in relation to the subject–matter of their information previous to their making the application; secondly, in the light in which the application itself manifestly shows their motives, and the purpose which it is calculated to suit; and, thirdly, the consequences of granting the information,—and the application for leave was denied, although it appeared clear that the title of both the defendants was invalid. King v. Parry, 6 Adol. & E. 810; Cole, Cr. Inf. 165; Grant, Corp. 253; Willc. Mun. Corp. 476; State v. Utter, 14 N. J. Law, 84.” (3) The public interest will not be served by continuing this prosecution. (4) The court is asked to become a party to a political conspiracy, having for its object the reversal of the popular will.

John P. Stockton, Atty. Gen., for relator.

I. There is no doubt of the jurisdiction of the supreme court in a case where there are two conflicting senates, each claiming a right to exercise legislative functions, to determine by which body legislative authority can be lawfully exercised. In the case of Prince v. Skillin, 71 Me. 367, the supreme court of Maine said: “When different bodies of men, each claiming to be and to exercise the functions of the legislative department of the state, appear, each asserting their titles to be regarded as the lawgivers for the people, it is the obvious duty of the judicial department, who must inevitably, at no distant day, be called to pass upon the validity of the laws that may be enacted by the respective claimants to legislative authority, to inquire and ascertain for themselves, with or without questions presented by the claimants, which of those bodies lawfully represents the people, from whom they derive their power. There can be but one lawful legislature. The court must know for itself whose enactments it will recognize as laws of binding force, whose levies of taxes it will enforce when brought judicially before it, whose choice of a prosecuting officer before the court it will respect. In a thousand ways it becomes essential that the court should forthwith ascertain and take judicial cognizance of the question, which is the true *747 legislature?” See, also, McCrary, Elect. p. 396; Attorney General v. Barstow, 4 Wis. 567; In re Gunn, 32 Pac. 470, 948, 50 Kan. 155.

II. In case of a division of a legislative body that ought to be a unit, that is the legal organization which has maintained the regular forms of organization, according to the laws and usages of the body, or, in the absence of these, according to the laws, customs, and usages of similar bodies in like cases, or in analogy to them. The new members, though they be in the majority, must meet with the old at the time and place fixed by law, and proceed regularly with the organization of the body. They must join themselves to the existing body, for the members holding over, though they may be in the minority, and not sufficiently numerous to constitute a quorum, are yet the body, for the purpose of receiving the new members, and acting as the organs of reorganizing the body. Mr. McCrary, in his work on Elections, says: “It is undoubtedly true that, for failure to organize a supreme legislature, there is no remedy which courts of justice can administer; and this fact makes it all the more important that the rules which have been established to prevent such failure, and avoid the anarchy, confusion, and possible bloodshed which might ensue, should be adhered to.” Section 593. This high authority also lays down the rule thus: “In case of a division of a legislative body that ought to be a unit, it becomes important to determine which is the legal and which the illegal assembly. In such a case the true test is this: That is the legal organization which has ‘maintained the regular forms of organization, according to the laws and usages of the body, or, in the absence of these, according to the laws, customs, and usages of similar bodies in like cases, or in analogy to them.’ This rule affords the best possible test of legitimate organization. In all cases where part of a legislative body remains, and where the body is to be completed by the reception of new members, the old members who hold over remain as an organized nucleus, which receives the new members, when the whole body proceeds to the exercise of all its functions. The new members, though they be in the majority, must meet with the old at the time and place fixed by law, and proceed regularly with the organization of the body, and they cannot assemble elsewhere and organize the body. They must join themselves to the existing body, for the members holding over, though they may be in the minority, and not sufficiently numerous to constitute a quorum, are yet the body, for the purpose of receiving the new members and acting as the organs of reorganizing the body.” Id. § 592.

The senate of New Jersey is a continuous body, with hold–over members, as is clearly demonstrated by reference to the constitution. Article 4, § 1, par. 1, provides that the legislative power shall be vested in a senate and general assembly; and in paragraph 3 of the same section it is provided that “members of the senate and general assembly shall be elected yearly and every year, and on the first Tuesday after the first Monday in November; and the two houses shall meet separately on the second Tuesday in January next after the said day of election, at which time of meeting the legislative year shall commence; but the time of holding such election may be altered by the legislature.”Section 2 provides that “the senate shall be composed of one senator from each county in the state, elected by the legal voters of the counties, respectively, for three years.”Section 4, par. 1, provides that “each house shall direct writs of election for supplying vacancies, occasioned by death, resignation, or otherwise; but if vacancies occur during the recess of the legislature, the writs may be issued by the governor, under such regulations as may be prescribed by law.” Paragraph 6 provides that “no bill or joint resolution shall pass unless there be a majority of all the members of each body personally present and agreeing thereto; and the yeas and nays of the members voting on such final passage shall be entered on the journal.”Paragraph 12 of article 5 provides that, “in case of the death, resignation or removal from office of the governor, the powers, duties and emoluments of the office shall devolve upon the president of the senate, and in case of his death, resignation or removal, then upon the speaker of the house of assembly, for the time being.” The provisions of the constitution of 1844, so far as they concern the creation, organization, and powers of the senate, are manifestly copied from the constitution of the United States. In fact, the words are precisely the same, except in such changes as are rendered necessary by reason of the difference in the terms for which senators are chosen, and the body of electors. Mr. Cushing, in his treatise, “Law and Practice of Legislative Assemblies,” (section 272,) thus describes the status and continuancy of the senate of the United States: “The senate of the United States, though it constitutes a branch of each succeeding congress, and its sessions are held periodically, and correspond with those of the house of representatives, is a continuous and permanent body *** One–third of the members of the senate go out of office every two years; hence, at the commencement of each congress, two–thirds of the senate, at least, which is more than a quorum, are then in office, duly qualified, and ready to proceed to business. The presiding officer of the senate being the vice president of the United States, by virtue of his office, and, in his absence, one of the senators, chosen temporarily, and the former retiring from the senate towards the end of each congress, in order that his place may be supplied by the choice of a temporary president, the consequence is that at the commencement of each *748 congress there is a presiding officer of the senate already in office, ready to proceed at once with his duties as such, and without any further authority from the senate. The secretary and other officers of this branch remain in office until their successors are chosen. There is no necessity, therefore, at the commencement of each congress, for a ‘reorganization’ of the senate of the United States, in the ordinary sense of that term.” The continuity of both the senate of the United States and the senate of New Jersey is created by the mode of election and term of the members, and not by the manner of providing for a temporary presiding officer. But the state of New Jersey has endeavored to provide a permanent and continuing presiding officer for the senate. The New Jersey law and practice has been to provide for a presiding officer of the senate during the entire existence of the senate, not, as in the case of the United States senate, in advance, but contemporaneously, and with ample power to meet any contingency as it may arise. Under the constitution of 1776, the legislative council was invested with the power of choosing a vice president of council. The governor of the state was the constant president of the council, and, in his absence, the vice president acted in his place. To this vice president were given other powers, among which were those which belonged to the governor, in case of the absence of the governor. In other words, the vice president of the council stood in the same relation to the council that a president pro tempore does to the senate. In the United States senate the vice president of the United States is the president of the senate; the temporary president takes his place in his absence. In the New Jersey senate the governor was the constant president of the senate; in his absence the vice president of the council took his place as constant president of the council. This was the position of affairs in this regard at the time that the constitution of 1844 was considered and adopted. That constitution provided for an officer to be known as the “President of the Senate,” who was to preside over the senate and to take the place of the governor in his absence or inability. This officer was not to be a mere presiding officer over the senate while it was in session. He was the continuing officer of the senate, whether that senate was in regular or special session or in recess. He is by law ex officio member of various state boards, which he attends when the senate is not in session. He signs deeds and conveys land as president of the senate, and ex officio one of the trustees of the school fund. While the constitution of 1844 did not say so, the legislature of 1845 took care to supply the omission by providing that “the powers, privileges, duties and remunerations granted to or imposed upon the vice president by law, at and immediately before the time when the president constitution of the state took effect, shall hereafter be exercised, enjoyed and performed by the president of the senate, so far as the same are not inconsistent with the present constitution; and all such powers or duties heretofore exercised or performed by the president of the senate are hereby ratified and confirmed, and shall have the same force and effect as if exercised and performed after the passage of this act.” This provision of a permanent officer, with great general and continuing powers, seems to be as ample a provision for the proper and timely organization of the senate as does that of the federal constitution and custom. This provision has been further fortified by a custom of 50 years' existence that each session of the senate shall be called to order by the secretary of the preceding session, which custom, in origin, duration, and efficacy, has all the force and effect possessed by the custom of the United States senate in providing for a president pro tempore to call the senate to order in the absence of the vice president. The constitution, in settling the succession, recognizes the president of the senate as always existing. It distinguishes between his existence and that of the speaker of the house. The expression is “the president of the senate, and the speaker of the house, for the time being.” It is therefore a question that does not admit of dispute that the senate of the United States is a continuous body, with organized hold–over members, and that that was a construction of the constitutional clause creating the senate before the constitution of New Jersey was framed, and that this was well known to the learned lawyers who were engaged in framing that constitution.

The rule is well settled that where a statute or a constitutional provision of doubtful import has been adopted in one state from the statutes or constitution of another state, after a practical construction has been given to the language by judicial decision, it will be presumed that the interpretation adopted in the state from which it is taken has been accepted, as well as the words. Gray v. Askew, 3 Ohio, 466; Langdon v. Applegate, 5 Ind. 327; Rigg v. Wilton, 13 Ill. 15; Adams v. Field, 21 Vt. 256; Rutland v. Mendon, 1 Pick. 154.

The debates that took place in the convention that formed the constitution of the United States and in the conventions of the states to which it was submitted for approval, the declarations of the United States senate by its ablest constitutional lawyers, the debates in the convention which framed the constitution of New Jersey, all support the rule as laid down by the commentators too firmly to be shaken by the opinions of partisans, promulgated in a time of popular excitement. The statute law of the state also recognizes the constitutional right of the senate to be the judge of the returns presented by members–elect, for it provides that the credentials shall be prima facie evidence. *749 Evidence for what purpose? Before what tribunal? The tribunal is fixed by the constitution. Its jurisdiction is made exclusive, and the statute law provides that the presentation of the credentials shall be prima facie evidence before that court. This, so far from attempting to take away any of the constitutional power of the tribunal, simply reasserts it. No legislative act could interfere with the constitutional power granted to each house. It is not a question committed to legislative action, because each house is given control over its own membership. By the ninety–sixth section of an act to regulate elections, approved April 17, 1846, it was provided “that the senate and general assembly shall convene and hold their sessions in the state house of Trenton; and in the organization of each house the certified copies of the statements of determination, made under the direction of the seventy–ninth section of this act, shall be deemed and taken to be prima facie evidence of the right of the persons therein mentioned to seats in the houses, respectively, to which they shall have been so determined to be elected.” It will be observed that it is not provided that a member shall be entitled to take his seat on the presentation of the certified copy of the statement of determination. The act could not do this, because the constitution provided that each body should be the judge of the returns of the members. So the act simply confines itself to making this certificate prima facie evidence,—evidence to be submitted to the tribunal which, by the constitution, could alone make the determination; evidence which, if uncontradicted, is sufficient to establish the right to the seat. The act, in connection with the constitutional provision, is an absolute recognition of the right of the senate to adjudge the question of membership. An act was passed on the 11th day of March, 1880, which provided “that whenever any candidate at any election in this state for member of the senate or member of the assembly shall have reason to believe that an error has been made in any board of election or of canvassers, in counting the vote or declaring the result of such election, whereby the result of such election has been changed, such candidate may apply to any justice of the supreme court, who is authorized to order and cause a recount of the votes, and if it shall appear, upon such recount of the ballots cast, that an error has been made sufficient to change the result of such election as declared by the board of canvassers, then such justice of the supreme court shall be empowered to revoke the certificate of election already issued, and order to be issued in its place another certificate to the person who shall be found by such recount to have received a majority of the votes cast.” The courts have held, without dissent, that it was beyond the power of the legislature to make a justice of the supreme court a judge of the election of a member of either house, because that power was committed by the constitution to each house, and not to the legislature; that the power given was simply to recount for the purpose of correcting a mistake, and changing the position of the parties, by revoking the certificate, and granting another, which action would prevent the certificate of the canvassers from being prima facie evidence, as provided by the former statute, and make the certificate of the justice prima facie evidence. The provision of both statutes, the ruling of the courts, and the custom of the body, all recognize the power of each body to render judgment on the presentation of the evidence. The constitution provides that the members of the legislature shall, before they enter on the duties of their respective offices, take and subscribe a specified oath or affirmation, and then adds that members–elect of the senate or general assembly are hereby empowered to administer to each other the said oath or affirmation. It will be remembered that in section 2 it is provided that as soon as the senate shall meet, after the first election to be held in pursuance of this constitution, they shall be divided, as equally as may be, into three classes, etc. It is manifest that the provision permitting the members–elect to take the oath before one another was a necessity in the first organization of the senate. It was a necessity, if they took an oath at all, that some person should be designated to administer that oath. It could not be the president of the senate, because there was no president. The body had to organize. In the senate it was only necessary for the purposes of the first organization, and therefore it appears that from the time the senate was organized as a continuous body to the present time the members–elect have been sworn in by the president pro tempore of the senate, in the presence of the senate. But, even if this were not so, how absurd it is to claim that the power to take an oath, given in one clause of the constitution to a member, constitutes that member the judge of the returns of a claimant, which power, by express provision, is vested solely and exclusively in the organized body, and is necessary to its independent existence.

It is claimed that under the clauses which provided that “members of the legislature shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation,”*** and “members–elect of the senate or general assembly are hereby empowered to administer to each other the said oath or affirmation,” senators–elect could take such an oath or affirmation in private; then appear with an attested certificate, and insist upon taking their seats, without permitting the existing senate, even if they were all present, to pass upon their returns. Such a proposition can find no support, either from principle or authority. When it is determined to admit a *750 senator to his seat because his credentials are regular, he is then admitted to take the oath of office; but he does not become a member of the body by virtue of the oath of office, but by virtue of the judgment of the senators upon his credentials, and their determination that he is entitled to admission. While the official oath may be a necessary part of his induction into office, it does not make him a member of the body until his credentials have been approved by the body who are the constitutional judges.

The constitution provides that “each house shall be the judge of the elections, returns and qualifications of its own members,” and the question has been raised as to when this judgment shall be exercised,—shall it be before or after the admission of the members upon these returns? An examination of the records discloses the fact that, as a common practice, the method has been to admit the applicant upon the returns, and then to afterwards examine into the manner. But, in every instance, it is apparent that the body claimed and retained to itself the power to act when and how it pleased. It is difficult to see how it could be otherwise. The power of a legislative body to judge of the election of its own members is an absolute power, controlled by no other tribunal. In this country it was adopted from the English system, and it was embodied in the unwritten constitution of Great Britain, as the result of one of the earliest of the conflicts between the house of commons, on the one hand, and the sovereign or the lords, or both, on the other, and has ever since been admitted to belong exclusively to the house itself, as “its ancient, natural, and undoubted privilege.” It is a power held to be essential to the free election and independent existence of a legislative assembly, and it has been guarantied to the legislative bodies of New Jersey by express constitutional provisions, which have been fully supported and protected by our courts and our executives. It is a power which has always been exercised by every legislative body in this state and country, at its own will, as to time or manner, without the possibility of successful opposition or review, save that of an appeal to the people.

The journal of the senate of 1846, the first continuing senate after the adoption of the present constitution, is in these words: “The president pro tempore having taken the chair, Mr. Hulme presented the credentials of Hon. Stephen R. Grover, elected a senator from the county of Essex, which were read and approved, and, the oath prescribed by law having been administered to Mr. Grover, he took his seat in the senate.” This form is continued to the present day, and demonstrates that every admission of a member to the oath and his seat has been made upon, and only upon, the approval of the senate. That approval necessarily involves the power of the senate and its desire to judge of the matter at the time; and whether it happens, as in the Ames and Revels case, in the United States senate, (Congressional Globe,) forty–first congress, that the admission was denied to the presenting members until the matter had been referred to and reported on by the judiciary committee; or in the Hooper–Torrey case, in the New Jersey senate, (1869,) where the protest was referred to a committee and the presenting member seated; or as at the session of 1887, when, after the temporary organization, the newly–elected senators were prevented for a month from presenting their certificates and their oaths, and taking their part in the proceedings,—the principle is the same; it is an exercise of a power carefully bestowed on each legislative body, and not reviewable by any other.

The record of the 48 senates between 1845 and 1894 show that no senator–elect was ever admitted to his seat as a senator, save after judgment upon and approval of his credentials by the senate, and the taking of the official oath by the senator–elect. In two instances, wherein a statement was made that the credentials had been forgotten, a resolution of the senate was required to waive the presentation of the credentials at that time, and to accept them as if they had been presented and judged. No instance can be found in the history of this state or of the federal government in which a senator–elect ever voted on the approval of his own certificate of election.

1845: The first meeting after the constitution (journal of 1845) they organized in the only way they could organize. There were no hold–over members. It was the first organization provided for by the constitution, and before any division of the senate had been made by law, as prescribed by the constitution; but the credentials of each member were presented, and, after their credentials had been presented, they were, respectively, sworn in by one of their fellow members. On Wednesday, January 14th, a resolution was offered to appoint a committee to report on the proper method of dividing the senate into three classes, as directed by the constitution. The announcement is simply that 18 of the 19 senators appeared in their seats. There was no call of the roll.

1846: In 1846 the journal records that 18 members appeared in their seats. Mr. Hulme moved that Alexander Wurts be appointed president of the senate pro tempore, which motion was unanimously agreed to. The president pro tempore having taken the chair, Mr. Hulme presented the credentials of Grover, etc. Mr. Crowell presented the credentials of Leupp. Mr. Paulison presented the credentials of George F. Fort, of Monmouth. In each case, they were read and approved. It is manifest that the record of the journal that the members–elect, in common with the hold–over senators, “appeared in their seats,” is a mere statement of their appearance in the chamber, and not of their participation in the proceedings, because *751 it is always recorded that the credentials of each newly–elected member were presented and approved, that he was then admitted to take the oath, and that after this ceremony was performed he took his seat in the senate; and no vote is ever recorded to have been taken, at which any newly–elected member voted, until he is first recorded to have taken his seat in the senate, showing that no one of the senators took his seat as a senator, or voted on the credentials of any other senator–elect, until after his credentials had been approved, and he had taken the oath of office.

1847: In the journal of 1847, it mentions that 19 senators appeared in their seats. The senate was called to order by Mr. Dodd, the late secretary. Mr. Grover moved that Paulison be appointed president of the senate pro tempore. This was unanimously agreed to, no vote being taken. The president having taken the chair, Mr. Olden presented the credentials of the Hon. Adam Lee, elected senator from the county of Middlesex, which were read and approved; and, the oath prescribed by law having been administered to Mr. Lee by the president pro tempore, he took his seat in the senate. Mr. Leupp presented the credentials of Farlee, from Hunterdon, which were read and approved. And so it is recorded, in the case of each senator–elect, that the credentials were presented and approved, and that then the member took his seat. The words are, “The members of the senate, having all been sworn, proceeded to the election of a president of the senate for the present session;” showing that no newly–elected senator was permitted to vote or to take his seat as a member of the body until after the preliminary organization had taken place, and his credentials had been presented, approved, and he had been sworn in before the body. The journal, in every case, says that they appeared in their seats, but it is careful to note that their credentials were presented and approved; that they were sworn in; and that after that they took their seats in the senate, and proceeded to assist in the election of a president of the session in place of the president pro tempore, who had been elected by the hold–over members.

1848: Records precisely the same circumstances: First, stated that 18 members appeared in their seats, that a president pro tempore was unanimously elected, that the credentials of the new members named were presented, that they were acted upon and approved, that they were sworn in; and then comes the forceful statement that, “the members of the senate having all been sworn in, the senate proceeded to the election of a presiding officer for the session,” which, of course, was the first action of the senate of the session. For the first four years after the first organization, ending with 1848, a record is made of the appearance in the senate chamber of the newly–elected members, but no vote or other act is recorded, showing their participation in any of the business of the senate. On the contrary, although the expression is used that the newly–elected members, in common with the hold–over members, appeared in their seats, it is yet stated fully and explicitly that it was not until after the credentials of the newly–elected members had been presented to the senate, and approved by that body, and the oath administered to each one separately and in sequence, that that member took his seat as a member of the senate. It has been presented in evidence by the counsel for Mr. Rogers that, by the memory of Mr. Daniel Dodd, who was secretary of the senate in 1845, 1846, and 1847, the senators all appeared in their seats at the opening of those sessions, no distinction being made between the senators–elect and hold–over senators, and that all participated in the organization of the senate, or in the selection of a president pro tempore, for that is all that was done before the admission of the new senators. The memory of this witness of events nearly 50 years ago is that, a person being named as president pro tempore, the motion was submitted without contest to the members present; that the vote was taken viva voce, and always without a negative; and that he could not distinguish between the voices of the senators in esse and the senators in posse. This vague and inconclusive memory can hardly prevail against the contemporaneous record explicitly made in every instance, by the same person, that every member–elect was admitted to his seat only after presentation and judgment on his credentials, and his taking of the oath of office. An examination of the journals of the senates of 1845, 1846, 1847, and 1848 shows these indisputable facts: The senate of 1845 was made up of 19 senators, who, in obedience to the constitutional provision to that end, divided themselves into three classes, so that one class would go out at the end of that legislative year, the other at the end of the next legislative year, and the third at the end of the third legislative year. In the first class, which was to expire with the then current year, were: Ihrie, of Warren; Dodd, of Essex; Brown, of Somerset; Combs, of Monmouth; Smallwood, of Gloucester; Howell, of Camden; and Shinn, of Salem. In 1846, when the senate met in session, there were present and in office the senators of the preceding session, as follows: Garrison, of Passaic; Wurts, of Hunterdon; Crowell, of Middlesex; Hulme, of Burlington; Hamilton, of Sussex; Willets of Cape May; Outwater, of Hudson; Johnes, of Morris; Paulison, of Bergen; Olden, of Mercer; Adams, of Atlantic; and Moore, of Cumberland. The senators–elect who presented themselves were: Grover, of Essex; Leupp, of Somerset; Fort, of Monmouth; Smallwood, of Gloucester; Stafford, of Camden; and Acton, of Salem. Mr. Mackey, of Warren, had been elected, but *752 did not present himself. The journal states that all of the senators and senators–elect “appeared in their seats;” and verbal testimony has been introduced to show that the senators–elect participated in the proceeding of electing a president pro tempore, and in passing upon the credentials. The journal is silent as to any part which the senators–elect took in the selection of a president pro tempore, as that act was performed without opposition, viva voce, except that Hulme, one of the hold–over senators, moved that Wurts, another of the hold–over senators, be appointed president pro tempore. In the presentation of the credentials, Hulme, a hold–over member, presented the credentials of Grover, a member–elect; Crowell, a hold–over senator, presented the credentials of Leupp, a member–elect; Paulison, a hold–over member, presented the credentials of Fort, a member–elect; Adams, a hold–over member, presented the credentials of Stafford, a member–elect; Willets, a hold–over member, presented the credentials of Smallwood, a member–elect; Moore, a hold–over member, presented the credentials of Acton, a member–elect. And then the minutes state: “The members of the senate, having been all sworn or affirmed, proceeded to the election of a president for the present session.” In 1847 the members–elect were Ryerson, of Passaic; Farlee, of Hunterdon; Lee, of Middlesex; Richards, of Burlington; Nathan Smith, of Sussex; and James L. Smith, of Cape May. The journal states that these senators “appeared in their seats” with the existing hold–over members of the senate, but they show that Grover, a hold–over senator, moved that Paulison, a hold–over senator, be appointed president pro tempore, and that that motion was unanimously agreed to, viva voce. The president pro tempore having taken the chair, Olden, a hold–over member, presented the credentials of Lee, senator–elect; Leupp, a hold–over member, presented the credentials of Farlee, a senator–elect; Grover, a hold–over senator, presented the credentials of Garrison, a senator–elect; Smallwood, a hold–over senator, presented the credentials of Richards, a senator–elect. Fort, a hold–over senator, presented the credentials of Mackey, who then presented his credentials for adjudication and approval, although elected for the previous year; Acton, a hold–over member, presented the credentials of James L. Smith, a member–elect; Adams, a hold–over member, presented the credentials of Nathan Smith, a member–elect; Outwater, a hold–over member, presented the credentials of Ryerson, a member–elect. These credentials were separately read and separately approved, and the member admitted to his seat in turn; and “the members of the senate, having been all sworn, proceeded to the election of a president of the senate for the present session.” In 1848 the members–elect were Tonnele, of Hudson; Marsh, of Morris; Haring, of Bergen; Olden, of Mercer; Walker, of Atlantic; and Garrison, of Cumberland. As before, the journal states that these members, in common with the existing senators, “appeared in their seats,” and that Richards, a hold–over senator, moved that Fort, a hold–over senator, be appointed president pro tempore, which being done, that Lee, a hold–over senator, presented the credentials of Olden, a member–elect. Richards, a hold–over senator, presented the credentials of Tonnele, a senator–elect; J. L. Smith, a hold–over senator, presented the credentials of Garrison, a senator–elect; Acton, a hold–over senator, presented the credentials of Marsh, a senator–elect; Nathan Smith, a hold–over senator, presented the credentials of Haring, a senator–elect; Stafford, a hold–over senator, presented the credentials of Walker, a senator–elect. These credentials were separately read and separately approved, and the oath was administered to each in turn; and as each qualified himself by his oath, in the presence of the senate, after having presented his credentials and having them approved, he took his seat, and “the members of the senate present, having been all sworn, proceeded to the election of a president of the senate for the present session.” It is a notable fact that of all the senators–elect who are recorded as “appearing in their seats,” before they were admitted to their seats, not one was ever selected for president pro tempore, nor ever nominated a senator for the temporary presidency, nor ever presented the credentials of a senator–elect, nor ever performed any recordable act in the organization. The grouping of the senators–elect with the existing senators was evidently a blunder by the secretary, committed through the then seeming unimportance of the form of the record, which he has since endeavored to fortify by vague recollections, and which is exposed by the fact that in 1849, when Mr. Dodd had ceased to be the secretary of the senate, and his place had been taken by Philip J. Grey, of Camden, the journal ceased showing that the senators–elect “appeared in their seats,” and were subsequently “admitted to their seats,” after the important intermediary processes of the presentation of their credentials, the judgment and approval of the senate upon them, and the taking of their official oath. The precedent set by Mr. Grey, in 1849, in recording the participation in the formation of the senate of only those who did in fact participate, has been followed to the present day.

1849: In 1849 there were but 12 members who are recorded as having appeared in their seats. The secretary called the senate to order, and a president pro tempore was unanimously elected. The credentials were presented one after the other, and in each instance approved, and then comes this record: “The newly–elected members having been all sworn or affirmed, the senate proceeded to the choice of a president for the present session.”

*753 1850: In 1850 it is recorded that 10 members appeared in their seats. The journal states that a president pro tempore was unanimously elected, and then the credentials of eight senators were presented in succession, and, being read and approved, they took their seats in the senate, and proceeded to the election of a president for the session.

1851: The county of Ocean was admitted, and the number of the senators increased to 20. The minutes report the presence of 13 senators. It is recorded that the secretary of the senate called it to order, and that Asa Whitehead was elected president pro tempore. The credentials of seven senators were separately presented, read, and approved, and the oath prescribed to each in turn. The minutes say that, “the newly–elected members of the senate having been all sworn or affirmed, the senate proceeded to the choice of a president for the present session, whereupon Silas D. Canfield was unanimously elected.”

1852: The minutes record the presence of 12 senators; the election of Abraham Zabriskie as president pro tempore; the presentation of the credentials of 8 senators–elect, the approval of those credentials by the senate, as made up. There were 20 senators in this year, and it is recorded, in reference to each of the 8 new senators, that after his credentials were approved, and he had taken the oath, he took his seat.

1853: The senate then consisting of 20 members; 14 are recorded as appearing in their seats. Mr. Allen, the late secretary, called it to order. Mr. Sitgreaves moved that the Honorable Reuben Fithian be appointed president pro tempore, which was unanimously agreed to. The president pro tempore having taken the chair, Mr. Alexander presented the credentials of Mr. Bonnell, of Sussex, which are reported to have been read and approved; and, the oath prescribed by law having been duly administered to Mr. Bonnell by the president pro tempore, he took his seat in the senate. Mr. Zabriskie presented the credentials of the Honorable Joseph W. Allen, a senator from the county of Burlington, which were read and approved; and, the oath prescribed by law having been administered, he took his seat in the senate. The same record is made as to five newly–elected senators, and the statement follows that the newly–elected members of the senate who were present, having all been sworn, proceeded to the choice of a president for the present session.

1854: This being the time and place appointed by the constitution for the meeting of the legislature, the following members of the senate—13—appeared in their seats: The senate was called to order by Mr. Allen, the late secretary, and Mr. Conger was appointed president pro tempore. The credentials of James Cowperthwaite, of Ocean, were presented, read, and approved; and, the affirmation prescribed by law having been duly administered to Mr. Cowperthwaite by the president pro tempore, he took his seat in the senate. Mr. Sitgreaves presented the credentials of the Honorable William C. Alexander, from the county of Mercer, which were read and approved; and, the oath prescribed by law having been duly administered to Mr. Alexander by the president pro tempore, he took his seat in the senate. Seven senators presented their credentials in succession, which were, as theretofore, separately read and separately approved; and it is recorded in each individual case that thereupon the member was admitted to take the oath of office, and his seat in the senate. Then comes the minute: “The newly–elected members of the senate appearing, and having all been sworn, the senate proceeded to the choice of a president for the present session.” It will be observed that the record is always that the senate was called to order by the late secretary, so that, although the presidents were elected for each session, the senate that was called to order was the continuous body of hold–over members, who, because they had no other presiding officer, chose one pro tempore, in order that the credentials of the newly–elected members might be presented, and that they could then take part in the election of a permanent president of the body.

1855: Thirteen senators present. Seven credentials presented. Usual form of approval and admission to seat.

1856: Thirteen senators present. Six presented credentials. Usual form of approval and admission to seats.

1857: Eleven senators present. Seven presented credentials. Usual form of approval and admission to seat.

1858: Twelve senators present. Union county admitted, making the whole number 21. Eight senators admitted.

1859: Fifteen senators present. Six members admitted in the usual form, the note this year being, “The newly–elected members of the senate appearing, all having been duly sworn, the senate proceeded to the choice of a president for the ensuing session.

1860: Fourteen senators present. Seven members admitted.

1861: Thirteen members appeared in their seats. Eight members admitted.

1862: Fourteen senators appeared. Seven members admitted in the usual form. The election of a president involved a protracted contest, in the course of which the president pro tempore is recorded as deciding that the rules of the last session continued in force until others were adopted.

1863: Thirteen senators present. Seven members admitted. The credentials are reported as being read and approved, and the members duly sworn.

1864: Twelve members present. Six members admitted.

1865: Thirteen senators present. Six members admitted in usual form.

*754 1866: Thirteen members present. Eight members admitted.

1867: Eleven present. Seven admitted to membership in usual form.

1868: Fourteen senators present. Six admitted to membership in usual form.

1869: Fourteen members present. Six admitted to membership in usual form. Subsequently Mr. Bettle presented the credentials of the Honorable John Torrey, Jr., senator from the county of Ocean. On motion of Mr. Robbins, the credentials of Hon. John Torrey,Jr., and petition accompanying it, were referred to a committee on elections. Upon motion of the same senator, the senator was allowed to take the oath prescribed by law, which was duly administered to him by the president pro tempore, and he then took his seat in the senate.

1870: Thirteen members present. Eight admitted to membership in the usual form.

1871: Fourteen senators present. Seven admitted to membership in the usual form.

1872: Thirteen members present. Seven admitted in the usual form. The Honorable John G. W. Havens, a senator from the county of Ocean, appeared without his credentials. Mr. Taylor moved that he be permitted to take the oath of office, and his seat in the senate, without them. The motion was agreed to, and, the oath prescribed by law having been duly administered, he took his seat.

1873: Thirteen members present. Eight admitted in usual form.

1874: Fifteen senators present. Five senators admitted. Subsequently, the credentials of John Hopper, as a senator from Passaic county, were presented. At the same time, a petition from Adam Carr, giving notice of his intention to contest. The notice was read and laid on the table. The credentials of the Honorable John Hopper, senator–elect from the county of Passaic, were then read and approved, and, the oath prescribed by law having been duly administered to Mr. Hopper by the president pro tempore, he took his seat in the senate.

1875: Fourteen members present. Six admitted. Mr. Taylor moved that in consequence of the Honorable J. Howard Willets, senator–elect from the county of Cumberland, not having his credentials present, he be permitted to take the oath of office, and file his credentials with the secretary at his earliest convenience. The oath prescribed by law having been duly administered to Mr. Willets by the president pro tempore, he took his seat in the senate.

1876: Eleven senators recorded as present. Eight admitted in usual form.

1877: It is recorded that the roll was called by the secretary, and 14 senators appeared and answered to the call. These were the 14 hold–over senators, on which Mr. Moore moved that the Honorable William J. Sewell be appointed president pro tempore, which motion was agreed to, and Senators Dayton and Magie conducted the president pro tempore to the chair, on which the credentials of the new members were presented and approved, and the senators–elect were sworn in, and took their seats.

1878: The roll was called, and 14, being the hold–over senators, answered to the call. William J. Sewell was appointed president pro tempore, and the credentials of Hon. John J. Gardner, senator–elect from the county of Atlantic, were presented by Mr. Magie. They were read and approved, and, the oath prescribed by law having been duly administered to Mr. Gardner by the president pro tempore, he took his seat in the senate; and the same record is made in the case of all the newly–elected members. The senate then proceeded to the election of a president for the ensuing year.

1879: The roll was called, and 13 hold–over senators answered to the call. Mr. Hobart moved that the Honorable George C. Ludlow be elected president pro tempore, which motion was agreed to, and Senators Hobart and Ward conducted the president pro tempore to the chair. Mr. Hobart presented the credentials of the Honorable John F. Bodine, senator–elect from the county of Gloucester. The credentials of six other members were presented, and it is recorded in each case that they were read and approved, and, the oath prescribed by law having been duly administered, the member took his seat in the senate. Then, under the direction of the president, as heretofore, the secretary called the senate, and they proceeded to the election of a president for the ensuing year.

1880: The roll was called by the secretary, and 15 senators answered to their names. Mr. Vail moved that the Honorable Rudolph F. Rabe be appointed president pro tempore, which was agreed to, and Senators Vail and Beekman conducted the president pro tempore to the chair. The credentials of six newly–elected senators were presented, read, and approved, and the oath prescribed by law administered. Under the direction of the president pro tempore, the secretary then called the senate, when 21 senators answered the call. The senate then proceeded to the election of a president for the ensuing year.

1881: The roll was called, and 14 senators answered to their names. After the election of Benjamin Vail as president pro tempore, the new members (seven in number) had their credentials presented and approved, and took the oath prescribed.

1882: The roll was called, and 13 senators answered to their names. Hon. James C. Youngblood was appointed president pro tempore on motion of Mr. Gardner, and the credentials of newly–elected members were presented in the usual form, and approved, and the oath taken as prescribed by law, and a record made of the same in each case.

1883: The roll was called, and 15 hold–over members answered to their names. A president pro tempore was elected by the hold– *755 over senate, and the credentials of the new members were presented and approved, and the oath administered as recorded in the previous years.

1884: Twelve senators answered to the call. These 12 senators elected a president pro tempore, and the credentials of 7 newly–elected members were presented, approved, and the oath administered, and the member allowed to take his seat as heretofore.

1885: The roll was called, and 13 hold–over members answered to their names. They elected a president pro tempore. The credentials of eight members were presented, and the usual record is made of their approval, and the member taking his seat.

1886: The roll was called, 13 hold–over senators answering to their names. A president pro tempore was elected, and the credentials of seven newly–elected senators were presented, and took the usual course.

1887: The roll was called by the secretary, and 13 senators appeared, and answered the call. Mr. Griggs offered the following: “Resolved, that the organization of the senate be postponed until to–morrow, at the hour of three p. m., and that we do now adjourn until that day and hour;” which was agreed to, and the senate thereupon adjourned. At 3 o'clock on the next day, under the direction of the president, the secretary called the senate, when 14 hold–over senators appeared, and answered to their names. Mr. Griggs then offered the following: “Resolved, that the organization of the senate be ordered postponed until to–morrow, at the hour of three o'clock p. m., and that we do now adjourn until that day and hour;” which was agreed to by the following vote: In the affirmative are recorded 9; in the negative are recorded 5. The senate thereupon adjourned. On the next day 8 senators appeared, and answered to their names, and passed a similar resolution. On the next day, under the direction of the president, the secretary called the senate, when three senators appeared, and Mr. Griggs offered the same resolution, which is recorded as agreed to; and the senate thereupon adjourned. These proceedings were continued from time to time until Thursday, February 1st, when it is recorded that, under the direction of the president, the secretary called the roll, and 13 senators answered the call, and Mr. Griggs moved that the Honorable John A. McBride be appointed president pro tempore. The proceedings then record the presentation of the credentials of 7 newly–elected senators. It will be observed that in this case the newly–elected senators were not permitted to take any part in the proceedings, or to present their credentials, until February 1st, although the senate, under the constitution, commenced its sessions on January 11th, and adjourned from day to day by the adoption of the resolutions offered by Senator Griggs.

1888: In 1888 the roll call was answered by 13 senators, who elected Senator Chase president pro tempore, on which the credentials of 7 newly–elected senators were presented in succession, read, and approved, and the oath prescribed by law administered by the president pro tempore; and it is recorded in each case that after taking the oath, the member took his seat in the senate.

1889: Fourteen members answered the call. Hon. John J. Gardner was elected president pro tempore. The credentials of six newly–elected members were presented, and the usual record made of their approval.

1890: Fourteen senators answered the call. A president pro tempore was elected. Mr. Smith presented the credentials of George T. Cranmer, which were read and approved, and, the oath prescribed by law having been administered, Mr. Cranmer took his seat in the senate. Mr. Pfeiffer presented the credentials of Hon. George T. Werts, senator–elect from the county of Morris. They were read and approved, and, the oath prescribed by law being duly administered, Mr. Werts took his seat in the senate. Mr. Pfeiffer presented the credentials of John J. Gardner, senator–elect from the county of Atlantic, and the same proceedings are recorded as before. Mr. Nevius presented the credentials of Hon. Edward F. McDonald, senator–elect from the county of Hudson, which were read. Mr. Roe presented a protest, which was read, and referred to a committee on elections, when appointed. The oath prescribed by law having been duly administered to Mr. McDonald by the president pro tempore, he took his seat in the senate. Mr. Smith presented the credentials of the Honorable Henry D. Winton, senator–elect from the county of Bergen, which were read and approved; and, the oath prescribed by law having been duly administered to Mr. Winton by the president pro tempore, he took his seat in the senate. Mr. Nevius presented the credentials of the Honorable Seaman R. Fowler, senator–elect from the county of Cumberland, which were read and approved; and, the oath prescribed by law having been duly administered, he took his seat in the senate. Mr. Werts presented the credentials of John D. Rue, senator–elect from the county of Mercer, which were read and approved; and, the oath prescribed by law having been duly administered to Mr. Rue by the president pro tempore, he took his seat in the senate. They then proceeded to the election of a president.

1891: It is recorded that the roll was called by the secretary, and 12 senators answered to their names. On motion of Mr. Werts, Hon. George T. Cranmer was appointed president pro tempore. The credentials of eight senators were presented, and acted upon in the usual way, with this exception: On the presentation by Senator Werts of the credentials of the Honorable William J. Keys, senator–elect from the county of Somerset, Mr. Gardner presented a protest, which was referred to committee *756 on elections, when appointed. It is recorded that, the oath prescribed by law having been duly administered to Mr. Keys by the president pro tempore, he took his seat in the senate.

1892: The roll was called by the secretary, and 13 senators answered to their names. Mr. Werts moved that the Honorable Maurice A. Rogers be appointed president pro tempore, and the secretary appointed Senators Marsh and Werts to conduct the president pro tempore to the chair. The credentials of the newly–elected members (seven in number) were then presented, and acted upon in the usual way, except that when Mr. Barrett presented the credentials of the Honorable Robert S. Hudspeth, senator–elect from the county of Hudson, they were read, upon which Mr. Cranmer presented a protest, which was referred to the committee on elections, when appointed; and, the oath prescribed by law having been duly administered to Mr. Hudspeth by the president pro tempore, he took his seat in the senate.

It is urged that the rule which requires the judgment of the existing body on the returns of its members is unreasonable; that members–elect may be deprived of their seats, and of taking proper part in the organization, by the unjust action of those whom the constitution has made the judges. This is an argument from inconvenience, which goes a very little distance in the consideration of a constitutional question. The very existence of the government depends upon the theory that those in high official position will perform the duty enjoined by the constitution, and to the performance of which they are obligated. There is an argument from inconvenience against almost every provision of the constitution. By way of example: Who can compel the states to elect United States senators? And yet the failure would stop the wheels of the federal government. Who can compel the executive of a state to deliver up fugitives from justice? And yet it is especially required by the United States constitution. Who can compel a legislature to go into joint meeting to elect state officers? The senate, in this state, has often refused to go into joint meeting for the election of important officials. Who can compel the supreme court to action other than that which accords with its own judgment? There is usually an inconvenience on both sides of these propositions, and in this case the constitution has adopted the provision which was considered the least objectionable. If the constitution had provided that without the examination of any certificates, or the judgment of the body, one claiming to have been elected a member of the body could take his seat and act with the body, the legislature, with all its great inherent powers, would be destroyed by intruders. And if it be true, as insisted, that newly–elected members need not show their credentials, or unite themselves to an organized existing body, and that the courts have no jurisdiction in the premises, the result would be anarchy and civil war, instead of regulated constitutional liberty and civil government.

It is also insisted that 11 is a majority of the senate, and a larger number than 10, and, for this reason, that the Rogers senate should be recognized as the legal senate. This proposition is founded on the theory that it is the action of individuals which makes laws, and elects United States senators and other prominent state officers. It is not a matter of any importance whatever, so far as the question of organization is concerned, how many members joined the Rogers senate. Unless organized according to law and constitutional provisions, if every member of both bodies were assembled, they would be nothing but a mob, and incapable of making laws, or electing United States senators or state officers. It is impossible to overestimate the importance of observing the distinction between the members of the body individually, and the body itself, as an organized political body. All the members of any body may be assembled together; but, if they are not properly organized, they can do no legislative act. This is not a matter of form, but it is a matter of substance, because it is a matter of constitutional law. The constitution of the state prescribes what the legislature shall be; and, unless it is organized as directed by the constitution, it is powerless. The importance of this principle is not only dwelt upon by all the commentators on the constitution, but is illustrated in the debates in the senate of the United States, in considering the validity of the election of members to that body. One of the most valuable of these cases is Harlan's Case, because it was debated by the ablest constitutional lawyers at that time in the senate, and because it involved no party question. The legislature of Iowa was in session, and it was stated in the debate that, if Mr. Harlan were unseated, he would be immediately returned, both of which circumstances subsequently occurred.

In Reply on Question of Jurisdiction.

It has been contended on behalf of one of the defendants that the court has not jurisdiction in this case, for the following reasons:

First. Because the question submitted is political, and not judicial, and must therefore be decided by the executive, and not by the courts.

Let us see just what the question to be decided is? Stripped of all subsidiary considerations, it is simply this: Which of these two senates is organized according to the constitution? Manifestly, they cannot both be so organized, and that one only can be which has complied with the constitutional forms and requirements. To decide this question, there must be determined—First, what the constitution requires; and, second, *757 which body, if either, has conformed to such requirements. What is there in these inquiries that is not judicial? Political questions may be raised in a state; but they can only be raised by the supreme power, not by one of its creatures. The people have the right to set up one government, and pull down another; and they have the power to destroy constitutions, as well as to make them. Whether or not they have done the latter in a given case is a political question, and the courts cannot deal with it, because it arises, not under the constitution, but outside and above it. Such was the case in Rhode Island at the time of the Dorr Rebellion.

Second. It has also been argued that the president of the senate is the mere servant and mouthpiece of the senate, and not, therefore, a public substantive officer.

The argument is based upon the character of the office of speaker of the house of commons, which bears only a slight analogy to that of president of the senate of New Jersey. The office is substantive and independent, as well as public, because it was created by the constitution, and will exist without the will of the senate, so long as the constitution remains unaltered.

Third. It has also been contended that, as the senate has the right to choose its own officers, it may elect any one to the office of president of the senate whom it chooses, and the court cannot inquire into his title without interfering with the legislative department of the government.

The senate has the undoubted right to choose its own officers, but it does not follow that it has the right to elect a person to the office of president of the senate who is constitutionally disqualified from holding that position. If he were a mere servant of the senate, its act in electing him, as already conceded, could not be reviewed elsewhere; but, surely, power must exist in the judicial department of the government to pass upon the constitutional qualifications of a person whom the senate puts into the chair of the executive of the state, or makes a member of the state board of education, and to oust him from such position if he be found constitutionally disqualified therefor. But with that question we have nothing to do in this case. We are not here seeking to review the act of the senate of New Jersey in electing either of these respondents. The question here is, has either of them been elected by the true senate? Both, of course, have not been; and, if either of them has been he has an unquestionable title to the office which he claims. There is really but one question in this case. It is simply a construction of those provisions of the constitution which created the senate of New Jersey.