Title: Opinion File 77-9 thru 77-32
CITATION THUMBNAILS ZOOMABLE
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 Material Information
Title: Opinion File 77-9 thru 77-32
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Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 77-9 thru 77-32
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 37
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003484
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


77 -9


J e 15, 1977
KEY WORDS: ..-

,' /
MORANDUM


TO LMB

F RM: DBM

RE: S.W.F.W.M.D. Membership-Minimum Requirements



Two Florida Supreme Court cases have construed the problem of
m:.imum number of members necessary to legally effect action,
and the answer is unfortunately as you suspected. Generally,
in a deliberative body/assembly with an enrolled membership,
where no By-Laws specify a quorum, the quorum is a majority of
aL the qualified members. However, where the membership falls
below a majority of the nine members capable of being appointed
to the governing board (or the three members capable of being
appointed to the basin board), the board cannot legally conduct
an business, other than that necessary to obtain a quorum, re-
coss, or adjourn, since the board could never obtain a quorum.

0 unionn of Justices, 12 Fla. 653 (1869) "Quorum", as used in
tE Flori'a -Constitution for governing general legislative
bi3iness, is not less than a majority of the entire membership
o2 which each House is composed. Vacancies, whether from death,
resignation, expulsion, or failure to elect a representative,
cinot be deducted from the total membership in ascertaining
tu presence or absence of a quorum. The Court expressed con-
crn that casual circumstances resulting in vacancies would re-
daEine the meaning of "House" if a quorum were determined by
ta number of members existing in fact rather than the number
oE members capable of being elected. A copy of this case is
attached.

Cl rk v. North Bay Village et al, 54 So. 2d 240 (Fla., 1951) -
reiterated the above, saying that "this Court is committed to
te proposition that 'vacancies from death, resignation or fail-
ure to elect, cannot be deducted in ascertaining a quorum.'"
(Ephasist in the original). In this case the Court held that
to councilmen could not compose a governing body, de jurEor
dfacto, for the transaction of business for North Bay Village,
cause the Charter required a council of five, three of whom
instituted a quorum and were necessary to transact business.
Vacancies had been created because two members had ceased to be
sidents of the Village. The Charter provided toa in different
actions that:

1. The of North Bay Island shall be governed by
a council of five."


2. The Council shall act on all matters on a majority





77- 10




vote of those present, a majority of the Council
being necessary for a quorum.

In this case, two of the three remaining Councilmen attempted to
adopt a resolution. The Court held the action invalid because of
the lack of the quorum.

A subsequent case, Willets et al v. North Bay Village, 60 So. 2d
922 (Fla. 1952), a similar case, held that where the Village had
three Councilmen and no more, where two of them had called a referen-
du election to approve a new Village Charter, where the third
Councilman was notified of the meeting but did not attend, and
where the election was actually held and the Charter approved with-
out any irregularity, the Court would uphold the election inpite
of the lack of a quorum at the essential meeting. The distinction
between Willets and Clark seems to be that the election in Willets
was actually held, thereby ratifying the illegal action. The
W:.lets Court acknowledged the holding of Clark, but apparently
d:i not want to upset the election.

The bottom line on all of this seems to be that if five members of
SWIWMD's governing board resign, creating vacancies in those posi-
ti ns, the board cannot function, other than to take emergency or
ministerial action. Even then the action would apparently be at
thn risk of each participating member.


DB41:bjc












TERMS HELD IN 1868-'9. 653

rH Opinious rendered to the Governor-Quorum-Impeachment.

Stil tioned; and until relieved are incapable of holding offices ; but
persons who had previously been members of the Secession
Convention and afterwards engaged in insurrection or rebel-
r-- lion are not necessarily included in such disability.
..*' The provision referred to is obviously penal in its character,
and judicial tribunals lwve ever been strict constructionists in
and dealing with enactments of that class, whether in the fundamen-
,'. tal law or in ordinary statutes.
JIsla- As to the cligibili<' of persons to be members of the Legisla-
to. o ture,-the Legislature itself is the sole judge.
d e.. For the court,
abarg eo E. M. RA, IALI,, Chief'-J justice.

Mernmen SUPREME Cou'T, Tallahasree, Fla., Oct. 19, 1868.

'is' not a
ljo perform ----
order" r T
tr r
Sare of equal IN TIME MATTIti OF TIU ExEtc'rJIVE ('MUNm'A'IN w irul
pursuance of 9TH OF NoviE3IHni, A. 1). 1868.
take the oth
o S Sect. 8, Art. IV., of the Constitution provides that a Imajority o' each

not St te 11ouse shall constitute a quorum to do business, but a smaller number may
'. officers, lor a djourn trom day to day, and may compel the presence of absent
trictly le- members, in such manner and under, such penalties aseach llou~ie may
Sst y prescribe."
.h of office, nd
1. The term House in this clause of the Constitution, wlh'ln use(l in
n.in any reference to the matter of quorum, means the entire.number of which the
Assembly or Senate may be composed. A qtiorum for the purposes of

-'insurrecti n or general legislation is not less than a majority of the whole number of
rhaps' and which the House may be composed. .Vacancies from death, resignation,
United Sta es" or failure to elect, cannot be deducted in ascertaining a quorum.
ath as certain .2. To constitute an impeachment so as to be effective'under the Consti-
". Ordinance of tuition to suspend the officer, the articles of impeachment must be pre-
i scented to the Senate, and-a constitutional quorum of the Senate must re-
disability men- ccive them.







2


SUI'IME C()UTf.


Opinions icnldcrea to the Governor Letter of th (Governor.


ExE.CUTrvl,- D)E l'AIT.'MNlNTf
TALLAAMASEE,, qth NovCember, 1808.
To the IoJlorable the Justices of the #Suiqreme Court of the State
of Florida:
As Governor of the State of Florida, I hereby, under and in
pursuance of the sixteenth section of thy fifth article of the Con-
stitution of the State, require the opinion of your Honors as to
the interpretation of certain portions of said Constitution, and
upon certain points of law hereinafter n.ntioned and stated,
and respectfully request that you render me such opinion in
writing.
For the inbornation of your Honors, I present herewith a
copy of' the proceedings of the Joint Legislative Convention,
begun and held at the Capitol, in the city of Tallahassee, on the
third day of November, in the year of our Lord one thousand
eight hundred and sixty-eight, pursuant to adjournment, and in
accordance with the provisions of An Act entitled An Act
prescribing on the part of this State the manner of appointing
Electors of President and Vice-President of the United States,"
approved August 6th, 1868, marked Exhibit "A," and a copy
of what purports to be a Senate Journal, at an Extraordinary
Session of the Legislature convened at the Capitol, at Tallahas-
see, Florida, on Tuesday, the 3d day of November, A. D., -188,.
at eight o'clock, P. M., by virtue of a proclamation of the Gov-
ernor," marked Exhibit B," and a copy of what purports to
be. a "Journal of the Assembly, at an Extraordinary Session of.
the Legislature convened at the Capitol, at Tallahassee, Florida,
on Tuesday, the 3d day of November, A. ). .18GS, at eight
o'clock, P. M., by virtue of a proclamation of the Governor,'
marked Exhibit C," which said Exhibits A, I1, and C, I re-
spectfully ask may be taken and considered as a part hereof.
Article III., on Distribution of Powers," provides: "The
powers of the government of the State of Florida shall be divided
into three departments, to wit: Legislative, Executive, and Ju-
dicial, and no person properly belonging to one of the depart-


9,




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er and in
Sthe Con-
t0ors as to
i.tion, and
>d stated,
,,union.in

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ouvention,
see, on the
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and a cop
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atlve, andha
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of the (oe.
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ry Session f
see, Flori a,
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ail be divided
itive, and u-
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T.- 13
'i


TERMS. IELl) IN, 1808-'N. 655


I


Opinions rendered to the Governor-Letter of the Governor.

lments shall exercise any functions appertaining to either of the
others, except in those cases expressly provided for by this Con-
stitution."
Section 1, of Article IV., of the Constitution provides that
" the Legislative authority of this State .shall be. vested in a
Senate and Assembly, which shall be designated the Legisla-
turn of the State of Florida, and the sessions thereof shall be
held at the seat or government of the State," and section 8
of the same article provides that a majority of each House
shall conistitiute a lquornull to do business, but a smaller number
' may adjourn from day to day, and may compel the presence of
absent members in such manner and under such penalties as
vach l louse may prescribe."
Section 8, of Article V., of the Constitution provides: "The
Governor may on extraordinary occasions convene the Legisla-
ture by proclamation, and shall state to both Houses, when or-
ganized, the purposes for which they have been convened, and
the Legislature then shall transact no legislative business except
that for which they are especially convened, or such other legis-
lative business as the Governor may call to the attention of the
Legislature while in session, except by the unanimous consent of
both Houses."
An interpretation of these several provisions of the Constitu-
tion is required in order to determine :
First. Whether a Legislature of the State of Florida, consist-
ing of a Senate and "Assembly" vested with the legisla-
tive authority of the State, has convened in Extraordinary Ses-
sion under the proclamation of the Governor of, November 3d,
A. D. 1868.
Upon this point, to assist your Honors in interpreting said
I ro\isions of the Constitution with reference to -the facts, I
refer your Honors more particularly to Exhibit B," or the
.lournal of the Senate," from which it will be seen that the
Senate, as a co-ordinate branch of the Legislature of the State,
had not, at any time, since it assumed to do business in conjunc-


I -~-YpL~hyl~C~~l~l~~XB~~g7, WL


I ____ ?a~Y-~..




I I


7 -14



065 SUPREME COURT.

Opinions rendered to the Governor-Letter of the Governor.

tion with the Assembly, under said proclamation, a lquorunt-
consisting of a majority of its members. That I called the at-
tention of the Senate and Assembly, as soon as the official rec-
ords disclosed the same, to this fact in my message to them of
November 3d, which message appears in said exhibit "B."
That certain persons who assumed to act as Senators, to wit:
George J. Alden, Horatio Jenkins, Jr., C. R. Mobley, and .
Robert Meachani, had, before assuming so to act, vacated their
positions as Senators, and their seats in the Senate had *been
declared vacant by "proclamation for and notice of election"
of 28th October, A. D. 1868, duly made and published, and
a copy of which proclamation," marked Exhibit "D," is pre-
sented herewith to be taken and considered as :L part hereot.
That, excluding said persons who had assumed so to act as
Senators, there were in the Senate only eight Senators whose
names appear upon the Senate Journal, to wit: Messrs. Ginn,
Katzenberg, Krimminger, Morauge, Underwood, Smith, Brad-
well, and Pearce.
It is provided in section 29, of Article XVI., of the Constitu-
tion, that there shall be twenty-four Senatorial Districts."
The Senate, therefore, as one of the fouises of tie Legisla-
ture, being composed of twenty-four Senators, cannot without a
majority constitute a quuorum to do business, and any legisla-
tive business transacted by it with eight members, which is five
less than a majority, is lcearly without constitutional sanction
and is void.
If your Honors, in interpreting said provisions of the Con-"
stitution, should give me the opinion that there has not con- '
veiled under said prolalmation in Extraordinary Sessioll, a Leg- .
islatnre of the State, consisting of a Senate and Assembly,
vested with the legislative authority of the State, competent to
transact legislative business, it would be unnecessary to trouble
you further ; but if your opinion be otherwise, then I present
for' your interpretation and opinion:
'Second. 'Admitting, under the several provisions of the Con-


'* .

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Sa poru
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offlicial re
; to.them
exhibit ''B
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Vacated the
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Mljssrs. Gil
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177-15


TERMS HELD IN 1868-'9. 657

Opinions rendered to the Governor-Letter of the Governor.

'stitution referred to, that a Legislature of the State, consisting
of a Senate and Assembly duly organized and vested with the
legislative authority of the State, had convened in Extraordi-
nary Session under the proclamation aforesaid,' and were, under
the Constitution, competent to transact legislative business, are.
the proceedings of said Legislature, as shown by said Exhibits
B and C, in so far as they relate to my impeachment as Gover-
nor of the State of Florida, of constitutional validity of force,
and am I, under section 15, of Article V., and section 9, of Arti-
cle XVI., disqualified from performing the duties of my office,
by reason of the proceedings had and taken as aforesaid in ref-
erence to my impeachment ? '
Upon this point I respectfully refer your Honors to my proc-
lamation of November 3d, A. 1. 1868, concerning said Extra-
ordinary Session, and to my message of same date, addressed to
the Senate and Assembly, both of which appear in said Exhibits
B and C, and present for your consideration the fact that neither
in said proclamation or message is it stated, or can it be im-
plied, that among the purposes for which said Legislature was
convened was my impeachment. Nor have I called to the at-
tention of said Legislature, while in session, any other legisla-
tive business than that for which they were especially convened
by said proclamation, and mentioned in said message.
I further present for the consideration of your Honors, that
the Assembly, in originating and bringing before itself and
Senate these impeachment proceedings, were acting in thrcir
legislative capacity, and the members thereof sitting as legisla-
tors; and that in so doing they were transacting legislative
business other than that for which they were especially con-
vened, and this, too, without the unanimous consent of both
Houses, to wit: of the Assembly and Senate, all which will
more fully appear by reference to said exhibits B and C.
It should be affirmatively shown by said Exhibits B and C
that such unanimots consent was first had and obtained, and if
it should be made to appear that objection was made to the


''
ki

i
*







S7-16



(i-,s, SUPREME COURT.

Opinions 'eudered to the Governor-Letter of the Governor.

transaction of any other legislative business than that for which
said Extraordinary Session was especially convened, I not only
call your Honors' attention to said Exhibit-" C," where'objcc-
tion does so appear to have been made by a member of the As-
scmbly, but to the accompanying affidavits, marked Exhibit
"E," and which I respectfully ask may be taken and considered
as a part hereof.
In asking the opinion of your -onors upon the grave questions
above submitted, I fool it my duty to bring to your attention
the fact-that upon said proceedings for my impeachment, the
Lieutenant-Governor of this State, William II. Gleason, has at
once assumed to be the Acting Governor thereof; that said
Gleason has issued a proclamation as such Acting Governor,
a copy of which is herewith filed, marked F," and which I T
ask may be taken and considered as a part. hereof; that I
am still in possession of the Executive Chamber, in the Capitol
of the State; that said Gleason, as acting Governor as afore-
said, has demanded of me the surrender of the Executive De-
partment. This demand I refused, stating to him that I claimed '
to be, under the Constitution and laws of this State, the right-
fil Governor thereof; that I should continue to exercise all the
power and authority, and discharge all the duties belonging to
the Executive Department until the courts should determine
otherwise; that should the judicial tribunals of the State deter-
mine against me, I should, like any other good citizen, not only
render peaceful but immediate obedience; that I am continuing
to act as Governor, and that said Gleason is also assuming to
act as Governor; that the officers of the State do not know, in
this unsettled and anomalous condition of things, Whom to rec-
ognize as at the head of the Executive Department; that the
administration of the State government is obstructed, and the
peace and welfare of the whole State jeoparded. It is but
natural that I should, therefore, under such circumstances, seek .
your counsel and opinion at the earliest moment, Mnd you will
pardon me for urging you, in view of the possibly momentous


} 0


__~__ ___ __ ~_l__ll__CCe~11113~bm4~




-I-gil


T77- 1,


TERMS HELD IN 1868-'9. <59

Opinions rendered to the Governor-Letter of the Lieutenant-Governor.

hlich 3 ..results of these issues, to furnish me your opinion at the earliest
only practicable moment.
lbjCe- I will state, in conclusion, that I have foreborne, as I felt it
SAs- my duty to do, to bring to your notice any matter of political
hibit controversy, and I will add, that if, in your opinion, it is proper
lered to give Lieutenant-Governor Gleason notice of this paper, to
the end that he may, as a party in interest, be represented b(-
,tions fore your' onors, you can direct the clerk of the court to hand
ntion him a copy hereof, if he will consent with me to submit the
t, the matter to'you, and be bound by your opinion to be given in the
as ti premises. Should you desire it, I will appear before you by
,nil ,counsel, at such time as your Honors may be pleased, to desig-
*ror,. hnate.. .... IAIUmSON REED, ,
ich I .. Governor of Florida.
hat I
capitol
at-orc- -h ) o T
Se-Dp. e To the Honorable the .Iwtices of the Supreme (ovrnt of the Ntate
aimed of Florida :
right- I would respectfully inform your H donors that I have received
ill the a copy. of the communication, bearing the seal of the Supreme
ing Court, of Harrison 1 eed, Governor of Florida, asking the opinion
ri. of your Honors upon certain points as connected with the im-
deter- peachment of Iarrison Reed, Governor of Florida, by thdAs-
.t only sembly of the State, and in reply would say :
inning What the journal of the Assembly shows that he was legally
king to impeached for high crimes and misdemeanors in office, and that
Vow, in a presentment of the impeachment was formally and legally
to rco-'. made to the Senate, and the Senate formally and legally agreed
hat the to entertain and take action in the matter, as is shown by the
ad the journal of the Senate. Consequently, the entire matter of the
is, but impeachment of Harrison Reed, Governor of Florida, is before
*s, seek the Senate in its judicial capacity as connected with the Assem-
ou will b ly in its appropriate capacity, it having the sole power of im-
icntous peachment.


I I I -










I

(p


660 SUPREME COURT.

Opinion of Westcott, J.-Quorum.

As no other court than the Senate of the State has any juris-
diction whatever in matters bf impeachments, and as there is no
question or interpretation, or constitutional or statute law in-
volved, but only a question of fact as to the retention by Harri-
son Reed, Governor, of the possession of the Executive Cham-
ber and the Archives of the State, after his formal impeachment
by the Assembly, and the recognition of myself as Lieut. and
acting' Governor by both bodies of the Legislature, I do not per-
ceive how any question connected with the matter of impeach-
ment can possibly be submitted to your Honors for a legal opin-
ion under the provisions of Article V., Section 10, of the Consti-
tution of the State. Therefore, having no power to do so, I
most respectfully decline to submit any question connected with
the matter of impeachment to your Hlonors, even while I hold
the opinions of your Honors upon all proper questions and mat-
ters in the highest possible estimation.
[Sigped,j W. II. GLEAsoN,
Lieutenant and'Acting Gqvernor.



SUPIIE.LE COURT OF FLOIl)A,
STALLAIIASSEE, Florida, Nov. 24, 1868.
To his Excellency, HAIRRSON RIlEn), Governor of Florida :
S. : Your communication of the oth of November is re-
ceived. It is accompanied by exhibits consisting of Your
proclamation of the 3d of November, calling an extraordinary
session of the Legislature; of what purport to be Journals of the
Senate and Assembly at such session, and a proclamation of
your Excellency containing notice for an election to fill certain
vacancies alleged to exist in the Senate and Assembly, occasioned
by parties who were elected to seats in the Legislature having
subsequently accepted offices and exercised functions appertain-
ing to the'Executive and judiciall departments of the Govern-
ment.


0
+


.77-18


YoI
and r
terpre
The
your <
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Th<
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Flori(
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I-lylj* II---rlid~*i$~ ~


S'TERMS HELD-IN 1868-'9. 661

S-" ''Opinion of Westcott, J.-QuoumI.

You present for 6ur consideration several "points of law,"
uris- and require of us an opinion upon two questions involving the in-
re 1is 10 terpretation of several clauses of the Constitution of this State.'
law in-. The first question is-Whether, upon the facts appearing in
HIarri- your communication, a Legislature of the State of Florida, con-
3 Cham- .; sisting of a Senate and Assembly, vested with the legislative
thiment authority of the State, has convened in extraordinary session
ut. and under your proclamation of November 3d, 1868 ?
not per- The second question is-If such a Legislature has assembled,
apeach- are the proceedings," as shown by exhibits B and C, in so far
al opin- as they i:elate to your impeachment as Governor of the State of
onsti- Florida, of constitutional validity and of force, and are you,
o so, I under section fifteen of Article V., and section nine of Article
ed wit XVI., disqualified from performing the duties of your office by
Sh reason of the proceedings had and taken in reference to your
nd mat- impeachment ?
An answer to the second question is not required by your
S' "' Excellency in the event that a negative reply is given to the
rnor. first, your Excellency having in substance remarked that in case
our opinion is that a Legislature of the State of Florida did not
convene, it would be unnecessary that the court should pro-
ceed further; but if the opinion of the court is otherwise, then
-6 "you present the second question for consideration.
da Before expressing an opinion upon the question propounded, it
may be well to determine whether .there is anything in the
r is re- character of the opinions required which would authorize the
of )our. court to decline to act in the premises. The Governor of this
ordinary State is authorized to require opinions of this court by virtue of
ils of the the following clause in the Constitution of the State :
nation of Section 16, Article V. "The Governor may at any time re-
1l certain quire the opinion of the justices of the Supreme Court as to the
;casioned interpretation of any portion of this Constitution or upon any
e having point of law, and the Supreme Court shall render such opinion
.ppertain- in writing."
Govern- rThis clause has not been embraced in the antecedent Consti-







f W.








. .. ... IIIII I, -B B-i-i ... :_ _"1,, ," -



7,.-20


coGi SUPREME, COURT. -

Opinion of Westcott, J.-Quorum.

tutions of this State, and we must look to other State Coustitu- th
Lions having similar provisions to obtain an idea of the practice tio
under it. : the
An almost entirely similar clause is found in the constitutions, so
of Maine, New Hampshire and 'Massachusetts. The' character cal
,of questions considered by the courts of these States, in answer
to inquiries made, will show to what extent the courts of these a
States have gone, and will indicate whether they have at any ho
time felt justified, on account of the character of the questions
submitted, to decline to make a reply.
In 3d Grcenleaf, 447, we find that the opinion of the Supreme wl
Court of Maine upon the construction of the following section de
in the Constitution of that State was required : "Thle number i
of ItRpresentatives shall, at the several periods of making the tni
enumeraCtion, be l.xed and apportioned among the several conn- .or
ties as near as may be according to the number of inhabitants, su
having regard to the relative increase of population." Hero a el
construction was desired of a clause which in part relates to the ? -
exercise of a purely legislative discretion. ,
It will not be denied that a judicial tribunal cannot review or tl1
control a purely legislative discretion. In a constitutional govern-
ment such as ours,.all departments are limited in their powers by bt
the Constitution; each being independent, are severally su- of
prcene within their legitimate and appropriate sphere of action ; ..
and while it is unquestionably true that wherever a power and c
trust is expressly confided to one co-ordinate branch of the gov- d
ernment, neither of the others, in a government with constitu- 1t
tional restrictions similar to those contained in ours, can exer- .
cise any supervisory control over the other departments when
acting within the limits of their constitutional power, yet we h
see in this instance that the Supreme Judicial Tribunal of y
Maine did not hesitate to give a construction to this clause iln r
the Constitution as requested. s
In 3d Greenleaf, 481, the following question was submitted :
"Is the offce-of agent, appointed under a resolution authorizing t



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albfth'pr ltice

te d'onustititons
*T rhe clharictir
i.ates, in answer
* courts of these
icy have as. any
ofj the questions

Sdf thie Supreme
allowing section
: L'The inu nbler
of making the
;l several couln-
Sof inhabi ants,
d1on." H1 re a
rt relates t the


anlnot revi
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it with col
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apartmentss
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ial Tribunl
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-w or
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gov-
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ct we
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was submitted :
ution authorizing


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.


r77 -21


TERMS HELD IN 1868-'9. 663

Opinion of Wcstcott, J.-Quorum.

the Governor to appoint one or more agents for the preserva-
tion of timber upon the public lands, a civil office of profit within.
the meaning of Article IV., part 3, section 10 of the Constitution,
so that no Senator or Representative of the present Legislature
can constitutionally be appointed as agent ?",
In 3d Greenleaf, 481, the following question is asked : "Can
any person, according to the third article of the Constitution,
hold and exercise at the same time the several offices of deputy
sheriff and justice of the cace ?"
In iGth (Greenlcaf: Do the executive duties of the State,
when constitutionally exercised by the Presideut of the Senate,
devolve at the end of the political"year when so exercised on the
'resident of the Senate or Speaker of the House of Representa-
tives of the next political year, whichever shall be first chosen,
or shall such executive duties still continue to be exercised by
such President of the Senate until another Governor of the State
chosen by the people or by the Legislaturee be qualified .?'
Here was a question propounded which settled a matter of
controversy in that State, involving the question as to who was
the Governor.
The question was asked with reference to a clause in tile Con-
stitution of that State, which was as follows: "Whenever the
office of Governor shall become vacant by death, resignation, re-
moval from office or otherwise, the President of the Senate shall
exercise the office of Governor until-another Governor shall be
duly qualified." There was a further provision to the effect
that a President of the Senate should be elected for the term .of
one year.
lion. Nathan Cutler had been elected for the year 182,, and
had discharged the duties of. the office of Governor during that
year, there being a vacancy in the office of Governor. Another
President was elected for the year 1830. Under these circum-
stances, IIon. Nathan Cutler, Acting Governor, whose term as
President of the Senate had expired, addressed a communication
to the Justices of the Supreme Court of that State and pro-


I I




--~r--- c C Us~,-~~s


664 SUPREME COUR1T...

Opinion of Westcott, J.-Quorum.

pounded the question above set forth. The Justices, with the
exception of one, advised him that hewas not authorized to act
longer as Governor. ...
Other citations showing the extent to, which the courts have
gone in opinions of this character, are, 7th Greenlcaf,,482; ,16
Maine, 474 ; 35 Maine, 585; 35 N. H., 578. .
In the case first cited, one of the questions asked was, whether,
"on the statement of facts made,. Messrs. Appletori, Bodwell,
Ushe:r and Hill were constitutionallgentitled to retain their
seats in the Senate ?" In giving their opinion the Justices re-
mark,'" The returns of votes are before the Senators, and their
decision upon them will of course be in accordance with the Con-
stitution as understood and construed by the court."
It will be perceived that the Justices in this case go so far as
to say that the Senate in making its decision must construe the
Constitution in accordance with the opinion of the court, thus
intimating that their opinion interpreting a clause in the Consti-
tution as to the manner of exercising a power vested exclu-
sively in the Senate, was a law to the Senate itself, in its ac-
tion.
These precedents show that there is no power in the court to
decline to give an opinion upon questions submitted by the Ex-
ecutive in so far as the act of giving such opinion, whenever
they have been required, goes to establish the rule.
Whilst I have been thus careful to cite at some length the
practice of the courts, to show their uniform course of action in
other States with similar constitutions, yet I do not think that
this clause in our constitution vesting this power admits of doubt
as to its construction. Its language is-" The Governor may at
any time require the opinion of the justices of the Supreme Court
as to the interpretation of any portion of this Constitution, or
upon any point of law, and the Supreme Court shall render such
opinion in writing."
It is evident from the language used that there is a discretion
vested in the Governor as to requiring opinions, and it is equally


j
i
1


j
I


77- 22


plain that there
quired involves,
portion of the C
any point of law
an'opinion; and
* While this s 1
such communica
it is not its duty
officer of the Go
upon whom the
devolve by areas
disability within
upon this subject
pro tanto, a recoo
nor of Florida-
so to recognize.
barrassment. T
cising the functi
zation of the Go'
1868 up. to this
has not expired,
in the exercise o
nication and ex
court certain pro
ture reflection as
that an opinion E
While I do nc
the Governor ma
upon by the cou
the court from it
fault, a fault of t
to remedy, yet n
upon the questic
the event that a
shall not considi
54


I I




-


,7 2


p r



LI ilq, wi tlhe
ulhorizd o act

9o courts have
1el, 8 ; .16

SWas, 1wh their,
lCAtoi', Bo well,
to retain heir
thCe Justic s re-
atbrs, and heir
e with the Con-
ilrt."
ise go so fIr a.
st constru the
the court, thlus
:e in the C nsti-
r tested e cliu-
itself, in it, ac-

in the con t to
tcd by th Ex-
ilion whee ver

)me lcngtl the
rse of acti n ii;
not think that
admits of d ubt
governor m y at
Supreme C urt
'onstitutionr or
all render iuch

Sis a discre ion
ad it is equally


TERMS IIELD IN 1868-'9. 665

Opinion of Wcstcott, J.-Quorum.

S plain that there is no discretion in the court, if the opinion re-,
quired involves, upon a given state offacts, an interpretation ofany;
portion of the Constitution or the expression of an opinion upon--'.
any point of law. The language is: "The.Governor may require
an opinion, and the Supreme Court shall render such opinion.'~t
SWhile this is true as to the duty of the court in reference to:
such communications from the Executive, it is equally true that
S it is not its duty to render opinions of this character to any other:
officer of the Government except the Governor, or to the person
upon whom the functions of the executive office mni at anytime.
S devolve by reason of suspension, by impeachment, or any other
S disability within the meaning of the constitutional provisions,
upon this subject. To answer this communication is, therefore,
pro tanto, a recognition of its writer as the Constitutional Gover-..
nor of Florida-to decline to answer it, is no less than a refusal;
so to recognize. This dilemma has been a source of no little em-
barrassment. The writer of the communication has been exer-
cising the functions of the office of Governor from the organi-
zation of the Government of this State under the Constitution of
18(8 up to this time, his term of office under the.Constitution
has not expired, and heis now, whether rightfully or wrongfully,
in the exercise of the duties of the office. It is true the commu-
nication and exhibits attached, bring to the attention of the.
court certain proceedings, looking to impeachment, but after ma-
ture reflection as to the duty of the court in the premises, I think.
that an opinion should be rendered..
S While I do not think that because the opinions' required by
the Governor may be upon points of law likely soon to be passed. .
upon by the court in cases involving individual rights, relieves
the court from its duty under the Constitution, this being, if a
fault, a fault of the Constitution beyond the power of the court
to remedy, yet not being required by the'communication to pass.
upon the question alluded to (the question of impeachment), in.
S the event that a negative answer to the first question, is given, I:
shall not consider it..' '
.54


`-77-77-1__C__-~













666 SUPREME COURT.


Opinion of Wcstcott, J.--Quorum.

I now proceed to the consideration of the first question as to
which an opinion is required, with the remark that in passing
upon any communication of this character, the facts therein
stated must be accepted as true, and the points'of law arising
therefrom, and in reference to which our opinion is. required,
must be passed upon in this view. No case being before the,
court in the exercise of original jurisdiction, no evidence can be
introduced; there are no pleadings raising issues, and hence
nothing to beproved.
The question is : Upon the facts appearing from your com-
munication and exhibits, did a "Legislature of the State of
Florida, consisting of a Senate and Assembly, vested with the
legislative authority of the State, convene in extraordinary ses-
sion under your Proclamation of November :1, 1808 ?"
What are the facts with reference to which this question is
asked, and the points. of law which pre involved, to be deter-
mined ? ;
It appears affirmatively from the Journal of the Assembly
that there were present on the 3d of November forty members,
on the 4th of November thirty-four members, on the 5th of No-
vember thirty-one, on the 6th of November thirty, and on'the
7th of November thirty-four members.
So far then as the Assembly is concerned, there was a quorum
present, whatever construction may be given to the requirement
of the Constitution, to the effect that a majority of each House
shall constitute a quorum to do business;" but as, to constitute
a :" Legislature of the State of Florida vested with legislative.
power," (the point to which,your inquiry is directed,) :it is
necessary -that a quorum of the :Senate within the meaning
of the constitutional requirement recited, should be present, I"
address myself to this specific inquiry : Was there a constitu-
tional quorum of the Senate for the purpose. of general business,:
present at any time during this session ? : ;.
What are the facts ? As they appear from. your.communica-
tion, and so.far.as they appear affirmatively ,from the Journals




*


`- 0


o ,-,




-i






































.4?










Vi
*

.."











.I't



*i=



"







c
^";










.I


.1
** *'.
"'- II

**ril


41,


bib"~rrr--- I-c- -..


77-24


of the Sena
SPeople vs.]
any time -w
.:upon the g
- Legislature
ble with' le
in that claul
that "no pe
of Govern
of the other
to such a c:
apartment of
another, the
at liberty tc
the last posi
that his ace
office, and t
by formal re
Such a dc
York, Mass:
of Colonel '
gress, 2d ses
hold the poe
volunteers c
time did he
was, so far':
Sthe'date'of 1
SAs the gr
our Constiti
Address myi
., Are tweh
this State, fq
tradistingui
amine retur.
other powei


















first questi n as to
rk that, in passing
,the- facts therein
ints'of la arising
.pinion is required
e .being b fore th
no evidence can b
issues, an hene

A from y ur com-
re of the tato o
ly[ vested with th
a extraord nary ses
:!, 1.868 ?"
ic Y this, q estion i
olved, to o deter

I. of the sscmbl
ber forty ember,
, on the 5 i of .N
Stl'v, 'ad on'th

there was quoru
i to the re uireme
jorityof e hIIous
'ut as, to onstitu
4ted with 1 gislati
is direct d,) it
.vithin the meaning
shouldd be resent,
"as there a constit
of generalbusies

n. your'co mun
/ from th jorna


N 71


j


STERMSAIELD'IN 1868-'0. 667

Opinion of Westcott, J.-Quorum.

'- of the Senate, (which is a requirement according to decision in
*a^- tPeople.vs. Hatch, 33d Ill., 156,) the highest number present at
any time was twelve, and the right of four of these .is questioned,'
i: upon the ground that since their election as members of the
S Legislature they accepted and entered upon offices incompati-
ble with legislative functions, thus coming, as is claimed, with-
Sin that clause of the Constitution of this State which provides
That no person properly belonging to one of the departments
'. of Government shall exercise any functions appertaining to either
of the others;" it being claimed that the. rule of law applicable
to such a case is : The citizen occupying a position in one de-
. i^11, apartment of the Government, and being appointed or elected to
Another, the duties of which are incompatible with the first, is
at liberty to accept and qualify and to discharge the' duties 'of
the last position; that he is free to elect which he will have, and
' that his acceptance of the second office, is the election of that
office, and the legal effect is the vacation of the other, whether
SllB by formal resignation or not.
Such a doctrine has. been held in many of the States, New
York, Massachusetts, Rhode Island, and Maine, and in the case
of Colonel Yell, of Arkansas, (a legislative precedent, 29th Con-
gress, 2d session,) the question was, admitting that he could not
hold the position of a Representative in Congress and .colonel of
volunteers of the United States army at the same time, at what
time did he vacate his office as representative? The 'decision
i i ;'. was, so far as one w's made, that there existed a vacancy from
the date'of the acceptance by him of the commission as colonel.
As the greater number embraces the smaller, I shall," under
our Constitution, (without regard to the special Representative,)
address myself to the following question: !
SAre twelve Senators a constitutional quorum of the Senate of
this State, for the purpose of general legislative business, as con-
tradistinguished from its power to punish for contempts, to ex-
amine returns, to compel the attendance of absent members, and
other powers necessary to its organization ? The whole number


A",




A A


-. a


668 SUPREME COURT.

Opinion of Westcott,'J.-Quorum. ,

of the Senate, excluding the special 'Iepresentative, is twenty-
four. If no less than a majority of the whole number is a quo-
rum, then the least lumber constituting' a quorum is thirteen.
Is there anything in our Constitution, or legislative precedent, or-
judicial decisions, to authorize in estimating a quorum a deduc-
tion to be made for vacancies by death, resignation, expulsion
failure to elect, or other cause of this character? -While the
constitutional provisions on'this subject' are by no means the
same, but on the contrary there is a very great difference, it may
be well to institute a comparison between the provisions of the
Constitution of the United States and the Constitution of this.
State, and examine the precedents, as this will enable us perhaps.
to come to a more correct conclusion.
I shall consider the Constitution of this State without reference
to sections 7 and 8, Article XVI. Its provisions are:
Section 29, Article XVI. "There shall be twenty-four Senato-
rial Districts, which shall be as follows, and shall be known by
their respective numbers from one to twenty-four, inclusive. The
First Senatorial District shall be composed of Escambia county,
the second of Santa Rosa and Walton," and so on, enumerating
each Senatorial District, including the twenty-fourth. It pro-
vides further that "each Senatorial District shall be entitled to
one Senator."
Section 8, Article IV. "A majority of each House shall con-
stitute a quorum to do business."
Section 1, Article IV. "The legislative authority of this State
shall be vested in a Senate and Assembly, which shall be desig-
nated the Legislature of the State of Florida." : ..
The provisions of the Constitution of the United States are:
Section 2, Article I. "The House of Representatives shall be
composed of members chosen every second year by the people of
the several States."
Section 3, Article I. "The Senate of the United States'shall
be composed of two Senators from each State, chosen by the
Legislature thereof." '" '' .
+- + +. ., ,j < 7


77 -26


S.ectic
tute a q
-The 1
S United
Squire t
,but whe
true th,
ference i
when wi
is conce
trial D
one Sen
SWe h;
.:fine the
The I]
Schbosen
As to
compos(
lature tl
The v
the Con
is, in re:
have in
and hen
House c
census v
Sentitle
: erative.
SAlld<
'only wi
-tives sh
&e.
Whai
The f
'louse (





. *.. ,r. 1.


itative, is twenty-
number is a quo-
nrum.is thirteen.
4tive precedent, or-
quorum a deduo-
nation, expulsion,
tor? ':-Whilo the
by no nicans tho
differxioe, it may '
ipovision of thb'
lttitution or thh"
4L'tlile Ia perlumai

without rferfi'rte
ins are:
enty-four SoIato-'
ilU lie" known by"
Ir, hiclusive. The
EI:scambia county,
SoIn, enumerating
y-fourth.' It pro.'
lall f entitled to

House shall von-


ority of this State
cli shall bo desig-
., *,.**.. ,, t.ti.

,ited Slates are:
ntativos shall b:'
-by the people of

,ited Stat'eshall':
to,' chosenby
i, a t '
"I' ^ Mit e..


..
s .7 s -.


I

at~:~


>frc












r'V
jC 'C'


TERMS HELD IN 1808-'O. ;;0

Opiui:.u ur Wc,:tcott, ..-Quorum.
.... .7 ` .. . .. . . _-- .- 7 _w
Section 5, Article I. A majority of each Housp shall qonsti-
tute a quorum to do businesss" ,, *
The language of the Constitution of this State and, opf.e
United States, in so far as that a majority of each House is re-
quired to constitute a quorum to do business, is precisely similar,
but when we come to define the words "each Iouse" and cou-
ltrili the Aeveral articles with refi:reni o to itsr definition, the dif-
frrence is marked. We have in the Constitution of this State,
when we come to define theo word House," so faras the Senate
is .coni:crncd, the following: There shall be twenty-fi,'r Sena-
torial Districts, :ind each Senatorial District shall be entitled to
one Sen-iatLr."
\Ve Larv inl tihe Coin itiition of tlie UIlnited States when wed e-
tinl( the \wiorl I ouLIe," a- I.i t I':- Hloefse of lRepreseiitatives,
"LThe House of Pepre-eitativh: -:dall bI. conllpose'l of members
clh.0.,s. cv:.,ry second year," &.e. *r
.\ to tle Senate, "The Seiinati.. thi: UnTitrl Sintatr Shainll Ie,
comnl,)ose'l .t r wo Seinat,-'r' fr'im eachl' Sitae co.qeIt lIy ithe Legis.
lat reii tlit.rot."
Th'I :. vorlj ntitl ," 1 iith r.I'V ;'i':11C' t- thi linhject, OCOirIA iin
thli ('.il-tititinui of tlie Uiiit.-:l .nl:t> iln Iut one ilane'-, l. .] ilhat
i-1. i ll r 111r>:.i' ;,-. to t1h iX-|II ', i .ntati,, ll w hiell thle Stat,:. % \iere to
hli r .. iin tiihe I of I |.r:-.i ai n ,: :'iterir to ti.i hi lt censutSi,
anil henLrio any dteci-'iuin as t,, what c-ii;titite.l a iurilrumni of the
IIHoue of It.rerentative. i" thl.e Uiite State -, after the fir4
e,:-n;uii wa- completed, was maide withliut reference.' to tchie word
"ciinitled inl this claun.-, the whole clause having become inop)-
.'a ti .'. i
.All decisions, therefore, rade after te ti. r-t CU;'4IlsI, were niade
only with reference to the termsr, Tlie, House of lelpresenta-
livie hall Tbe comlpo-ivd of neoi.hE.- ,Io.: .'0. every ('co.nd y.vpr,"

W'lhat aru the Igislative precedents.'
The first I will mention was during the war. Journals of the
Ba.irSe of teperesentativ?.s, :27th Congre-; 117.


4*

.-'

-1-^


77.-227











670 SUPREME COURT.

Opinion of \estcott, J.-Quorumn.' '

The House of Representatives then, in view of the clauses I
have cited above, decided several of the States having failed
to send -Representatives, that a majority of the'members chosen
constituted a quorum to do business." .. '' ; .-"
This ruling, in my judgment 'an incorrect one, becauseothe '
word "chosen," in the connection in which 'it'is used, has ex V..
elusive reference to the time of election' was based upon a state: .
of facts then existing in the United States, which do' not now
exist in the Senatorial Districts of Florida. At this time some
of the States had refused to send members to Congress, and their
citizens were in arms against the government of the United .
States. Admitting, however, that such a construction is correct
when applied to the terms used in the Constitution of the United
States, the language being the House of Representatives shall
be composed of members chosen," the case is not at all in point
when we are to construe the Constitution of this State, where, in
reference to the Senate, there is no such word as chosen except '
when used to fix the duration of their term, aindwhere no Sena-
torial District has failed to elect a Senator when an opportunity '
has been afforded.
The word ehosun in the Constitution of this State is used
solely in reference to the term of office and date of election.
The word entitled" in the Constitution of this State is used
with reference to a subject that does not vary, to wit, a Senat-
rial District, and if the word House is to be construed with ref-
erence to this term, which it must be in the connection in which
it is.used, it should indicate a fixed, a certain.number." The
term "chosen," used in the Constitution of the United. States,,.
implies, indeed admits, the idea of a right of choice when used:
with'roference to a person or "member;" the word "entitled" .'
in our Constitution is used in reference to a fixed subject, such .
as a Senatorial District, and involves no such idea even in the
most limited degree. ..
Leaving this precedent, applicable to a particular state of .
facts not now existing in the State of Florida, we come to a pre-;


,I
r


""'""""*~~l'~l`~~""r`"-U- rrr~lyp-~..-- ----4~---,


- ---~-----


~ ~~
..
..,.

I


77-28





ccdent somewbl
of difference in
Congressional
"Mr. Jones,
Contended that
stitute a quo'ur
to represent thi
and been this n
Counting these
hundred and t
hundred and si
S"The Chair
that one hundro
permitted to ey
Wisconsin trer
There were threat
Hundred and fo
S"Mr. Jones d
Mr Duer c
be included in
consisted, and
those actually <
The. chair rul
in the account.
It will thus
members from
posed of two 1
cancies; ald e
which member
compos-'d of t\
hundred and fo
quorum.:
The point w,
not be counted
they should be
















ihe clauses I
,i5ny/ jailed.
bears s chosen
,, '..': -,V '
becauso'the
ised, has ex-"
'1pon a state :
do not now
I time some
sd, and their
the United
oiA is correct
i thie United
4ttives shall
all in point
e, where, in
I.(en except ,
;re no Sena-
opportunity

tate is' used
election '-
te', s used
it, ;. cuato-
ed with ref-
on in which
imber.'"-The .*
,ited. States,:.
0 when used
" entitled .
objectt,' such 1..
even in the

lar state of i
'mo to a pro-ir' i


77-29


TE;RMS 1EI-L)D IN 1818'-'9. 671

Opinuino t W\ctr cjltl i.-Quoruin.......

cL-, lIlt ois,~n hat ltmore inI point, ilt hoIgh not entirely on account
of 0dill'cruce in thl, constitutional proviRions.
('ungr-.,'ionnl G(hli.-, volnne 18, page S-' :
Mr. Jones, of Tennesec., raised a question ot order. He
( contended that one Ihusdred and fourteen members did not con-
I. stitulte a quornm -I't the Ioio:i. Two members had been elected
S to replreiLent thle Sintt ...I', \Wicnsin, one of:' whom hadl aiipered
anil b.c.n thi' Imirlniing sworn, :inl th .'tlliher was .nn hlis way.
S(..''oni;iiig th i :;. .' I.\. i'ni)mb r-, the HOIsi-., .coilsll coi'iskrii t wo
L hiirnl .1 an l tliirty mnmvilsli, sani it would of coiirs~ tak., one
Silinil, ,I .il, si'\lxt.in to Inlak a quiorum.
S"''Th' 'Ih rliir stated tliat heil hlad beenl inlormced by the clerk
ithat 'iIn. hln'ircd inld tfourte?..-n were a quorum. The clerk bing
I i initte-ll to explain, said that inclluing the two uenibers from
\rWicon.)Iin there would be two hlllldrel and thirty members, but
th>r'? ie.re Il/r. ,; ,iacietics to ibe ( leichtttd. ThI, being done, one
i. hundred and I.iturteen would constitute a qiunrum.
... Mr. Jones dij-niitd that the \.n.antdistricts were to bi: deducted.
Mr. Diier contended that IIbe vacant di' tricts ought not to
be iii:cludiI.d in lctcerminir nr ttih. n hilnibr ,of which tle I House
con.-ist-l.,1, an that none oiiglit t,. le taken-into account but
'' 'those actually c-li:ted and returned."
Thl'e clir I iiled that the vacant district, '7rrc to /,, inlderd
in Ill. l' ah count.
It will tlilu h.-e s.'ee thai t ll up that day, including the two
me(-nlm-r fIrom Wisconsc iii, the Ilo,sie woul'l have been crom-
possi.'d of: two hundred and thirty nmembneirs, including three va-
S anci's; and excluding tile three vacancies, that ia seats for
which llelemberrs wsyrt ,iot c El'olen., tle iHouse wounlI hiavo been
S comini.- .1 o two huinired and twent y-s'-. en mf':nil)er-, and s.ine
hlundrin .d ,nin. tirteen would have, with llthis conrtructiuli, been .

Th ,e pl'init wj. ler. r aiSi :-1i c'.,jile.-ly tlh:-t the vacIancieLs houildl
nrlt le cojunt'ed iin .'l lninagl a qiuorutnim and it Iwaq decided that.
thri y i-houill le.


'"c3
~'~
~:
...
i









C /


3o30


672 SUPREME. COURT.

Opinion of Westcott, J.--Quorum.

Cushing's Law and Practice of Legislative Assemblies, 100:
S",When the number of which an Assembly may .consist at
any given time is fixed by: the Constitution, and an aliquot pro- ;
portion of such aniAssembly is :requiredsin order to;constitute
a quorum, the number of which such Assembly may consist, and' '
not the number ofwhich it does in fact .consist at the time,in
question, is the number of the Assembly, and the number ne-
essary to constitute a quorum is to be reckoned accordingly."
J. of IH., VL, 274-395; J. of H., VII., 214. .. 3 ..
"Thus, in the Senate of the United States to, which, by the
Constitution, each State in the Union may elect two members,
and which may consequently consist of two members from each
State, the quorum is a majority of that number, whether the
States have all exercised their constitutional right or not." J.
of:S., 32d Congressional Globe; Congressional Globe, X., 1. .' '
," So in the second.branch of Congress, in which, by the Con- '-::?
stitution, the whole number of Representatives of which the
House may consist, is fixed by the last .appointment, increased
by the number of members to which newly-admitted States
may be entitled, the quorum is a majority of the whole number,
including the number to which such new States may be entitled,
whether they have elected members or not, making no deduc-
tion on account of vacant districts." J. of II., 30th Congress, 'J
1st Session, 877; Congressional Globe, 18-821.
In examining, this question I have given citations showing' "
legislative practice. -This, is a question of constitutional law. ,'
The.;action.of, Legislative Assemblies, and especially the popu-. :
lar, branch,;is, not authority in the legal sense of that word, :
that is, the authority which attends a judicial decision. It is ,::
seldom a safecriterion, and I should not hesitate to depart
from it if I thought it wrong. The question here is an original one. i
The judicial decisions in all the States whose courts have.
passed upon the subject, so far as I have been able to obtain
them, define a quorum to be a majority of all the members that
may be elected, including casual vacancies. ',*'. '. '


.;' ,Sc
'that
,' the
. .. ,lqho
.Sup
Ill.,
C4
than
samI

busi
Ir
ist f
*.Sen,
S deci
quo
: II
tuti
mes
rest
lati
the

** tha
Sbe'
Sdei
:afi
to
K4.
the
-. cor
wb
o col
7


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seniblies, 100:
may. consist at
an:aliquot pro-
eorto;constitute ,
Lay consist, and
at the time.in
ie number nec-
l accordingly."

' which, by the
two members,
ib rs from each
rbwhethe'r the
lit or not.' J.
lobe, X., 1.
-'h by the Con-.
df which the
nent, increased
admitted: States
whole number,
iay be entitled,
kinr" deduc-
:>0ti. -ongress,

itions showing
:titutional; law.'
;ally the:.popu-'
of that word,
decision.' It is"
ate to depart
:n original one.'
>se courts have
able to obtain
Members that.


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7*' IF;
-:
-J.


44


TERMSHIELD IN 1868-'9. 673'

Opinion of Wcstcott, J.-Quorum.

Section 12, Article III., of the Constitution of .Illinois, requires
that "two-thirds of each House shall constitute a quorum,'! and -'' '
"the Senate shall consist of twenty-five members.",:'., ;i
In .examining,.the .Constitution as to -what ;constituted: av-', ,.
quorum of the Senate under these constitutional, provisions, the::'
Supreme Court of Illinois, in the case of People vs. Hatch, 33d:
II., 130-159, held it to be 17.
Constitution of Maine.-" The Senate shall consist of not less
than twenty nor more than thirty-one members elected at the
same time as the Representatives."
A majority of each I-ouse shall constitute a quorum to:do
business." '. ',
In 6th Greenleaf, 516,'the court held a "' Senate cannot ex-
ist for the purpose of doing business, unless composed of eleven ''.
Senators at least, and such. Senate can act only by vote, and
decide ..only by the: power, of a major of the constitutional
luorun."
If such a construction was given to this clause in our Consti-
tution as would permit the word Iouse to be modified in its
meaning by casual circumstances resulting in vacancies, such a
result is possible as would vest.the entire powers of the Legis-'
l.tive Department of the government in less than one-third of
the members for which the Constitution provides.
There is as much reason under our Constitution ,for-ruling,.
that the term House means the members present, whether they
be three or six, as there is for deciding that vacancies should b6
dedlucted'where there are vacanciesfrom death, resignation, or
a failure to, cle.t, when there has been no opportunity afforded
to elect. ,
: The meaning of the word "House," as used in the clause of-
t he Constitution under .consideration, 'does not depend on such
contingencies. .It has a fixed meaning under all circumstances,
which is, the entire number of which it may be composed, and a
constitutional quorum must be a majority of -that number. ,
It is, therefore, my opinion, upon the facts submitted in your'







I'


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tvI


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074. SUPREME COURT.'., 1


1r-


Opinion of Randall, C. J;-Quorum-aImpeachment.k -. -.

communication and upon the authorities and precedents cited, '
that twelve Senators did not constitute a quorum- to do busi-
ness; and hence, that there was no Senate within the meaning ,
of this clause of the Constitution, and that*," a Legislature of
S the State'of Florida, consisting of. aS'Sonate and.4Ahsembly,W-
S* vested with' tho-legislative' authority or the!State,'!AdidiJio
S convene in- extraordinary" session'under your proclamgtipnbf'
November 3, 1868. "`I' ':* ." .
"' As your'Excellency does not require an opinion upon the'j,
points submitted in your second question, if a negative. reply is t
returned to the first, having made such a reply I do.not'con- .,
S sider the second question. 1 '
f '.t JAMES D. W\VsTCOrr, J .,' .'
4. Associate-Justice Supreme.Court. .

S -
Opinion by E:. RANDALL, C.: J, in 'repy tothlette "
of the Governor, of November 9, 1868: "8 pf
4 To His EXCELLENCY, the Governor: ...'...' '. ." ',
As pertinent to the first question proposed by the Governor, '
S. and fully embraced in its scope, it is deemed proper to give the
:'. result of our examination of authorities and our conclusions ,f
therefrom, based upon the facts as stated in his communication
and in the documents presented- therewith, upon the important .';;
; question as to what constitutes an effective 'impeachment and i:
,i .. suspension from office under the Constitution.- In view of itsii
,y L importance, we have. no hesitation in doing'so, and in viewtof
the further fact that we find no aotually.-onflictingedecisions o
.. varying precedents. .: .. '; v, j;
*:' Concurring fully in the views expressed by Justice Westoott, .S
., *' the following are respectfully submitted, with the premise that.-
the niles which have'governed courts and deliberative bodies,..- i .
through a long series of years, are much more satisfaotoryitoL i
ourselves than onr'own speculations and first impressions.;h4bl t10

* .. .- .


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** '/.?..


.7 prTAnini,..' r&
i ^ *l---~l ',, r i
p drea#_ ittinjn
"i. cnd a'idestih






Sthe provisions of'the (
inents are thus introduce
have recourse to the c(
'.of the term. In Ingh
0 House pf Cornmbn si
very a cient times. T
sents' the people, bring
,. Burrill's Law Diet, tit
exhibit articles ofAc,
~.' competent tribunal. '
Macaulay, referring t
S says:' "At length the
of charge, directed *]
S 'impeahithe. late Gpve
m- meanoras^^&ttis 'ftiZ-
-' nderrAthetConstitt
Simpbachment mi6y be'd
.the H..of RI td theiSene
. feeding inxtheinstitutic
w l"'Whet'a' person'$wh
'r: guiltyAoris supposed t,
a resolution is'generall]
HIonseO6f Representati,
committee of inquiry."t
partyiaocused; they'giv.
mend thaS he be impeach
the'House,.a'committto



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