Attorney Gen. v. Rogers

• Decision Date: 18 May 1894
• Citation: 56 N.J.L. 480,29 A. 173
• Parties: ATTORNEY GENERAL ex rd. WERTS, Governor, v. ROGERS et al.
• Court: New Jersey Supreme Court

29 A. 173

56 N.J.L. 480

ATTORNEY GENERAL ex rd. WERTS, Governor,

v. ROGERS et al.

Supreme Court of New Jersey.

May 18, 1894.

For majority opinion, see 28 Atl. 726.

ABBETT, J. (dissenting). The senate of New Jersey came into existence under the constitution of 1844. It was created to take the place of the legislative council provided by the constitution of 1776. The council was an annual body, its members being all elected for one year only. The senate at its first meeting in 1845 consisted of nineteen members, one from each of the then counties of the state. It was divided as equally as possible into three classes. The seats of the senators of the first class were vacated at the expiration of the first year, of the second class at the expiration of the second year, and of the third class at the expiration of the third year, so that, in accordance with the constitution, one class may be elected every year; and, if vacancies happen by resignation or otherwise, the persons elected to supply such vacancies shall be elected for the unexpired terms only. The term of office of senators is three years. Two new counties have been created since 1844, and the full senate now consists of twenty-one senators, of whom eleven are a quorum to do business. At the election held in November, 1893, eight senators were elected to take the places of the senators whose terms of office would expire January 8, 1894. On January 9th there were existent thirteen bold-over senators, and eight senators-elect Nine of the hold-over senators met in the senate chamber and elected one of their number, Robert Adrain, their presiding officer, and thereafter claimed to have elected him "president of the senate," upon the insistment that the four other hold-over senators were actually or constructively present at the time of his election. The four, however, insisted upon certain assurances from the nine as to their future action, and, these being refused, they withdrew, and associated themselves with seven of the senators-elect, and these eleven organized themselves into a second body, which they insist is the true senate of New Jersey, because, as they contend, the quorum of the senate provided for by the constitution was present at this organization. This body elected Maurice A. Rogers as "president of the senate." The thirteen hold-over senators, constituting the two classes of the senate whose terms of office had not expired, did not voluntarily act together as one body, but divided themselves as I have stated. Under the constitution the senate elects its own president. If either of the bodies described was the true senate of New Jersey at the time it acted, then the person chosen by that body is president of the senate.

The questions in this case are: First, whether the court has jurisdiction to try the issues raised by the record; second, jurisdiction being found, is either of the respondents president of the senate of New Jersey? It is clear that to elect a president of the senate the body exercising such power must be the senate. There can be only one senate in existence, and the decision of the rights of the respondent, therefore, depends upon the answer to the question, was either of these bodies the senate of New Jersey? I have reached the conclusions, for the reasons hereinafter stated, that neither, of said bodies at the time it acted was the true senate of New Jersey; that the senate is a continuous body, and, at that time, consisted of the thirteen senators composing the two classes whose terms of office had not then expired. The jurisdiction of the court to try this controversy is, in my judgment, clear. The object of the litigation is not to interfere with the functions of the legislative department of the state, or either of the houses which together constitute that department; it is to ascertain whether either of the two bodies claiming to be the senate is really the senate of New Jersey. That such an inquiry is a judicial one seems to be established on principle and authority. McCrary, Elect 396; Prince v. Skillin, 71 Me. 367; In re Gunn, 50 Kan. 155, 32 Pac. 470, 948. This jurisdiction has also been upheld where it relates to the executive department, and the question was, which of two contestants was lieutenant governor of a state? State v. Barstow, 4 Wis. 567. The reasons for upholding the jurisdiction of this court, stated in the opinion of the learned chief justice, are conclusive. It is true that our constitution declares that "the legislative power shall be vested in a senate and general assembly," but, when two bodies each claim to be the senate, a judicial question is presented. This court in Pangborn v. Young, 32 N. J. Law, 29, 32, says that "a legislative bill, which wanted the approval of either the assembly or the senate, or that of the governor, would be so plainly defective, on constitutional grounds, that this court would not hesitate, in the exercise of its clearly legitimate power, in declaring it absolutely void." In the same case it treats the certificate signed by the president of the senate and the speaker of the house as "conclusive evidence" of the passage of a bill through the two houses. The court may, therefore, inquire into the question of title when two persons claim to be; president of the senate, and to do so in this case it is necessary to decide which body, if either, is the constitutional senate.

This court having jurisdiction, the duty is imposed upon it of deciding which of the claimants, if either, has shown title to the office. The question of title involves the inquiry whether our senate expires annually in the same sense that the assembly does, or is, like the senate of the United States, a continuous, "ever-living body." There is no such body as a "new senate" known to the constitution of the United States. There is biennially a new house of representatives, because the entire membership of that body expires at the end of every second year; but not so the senate. The constitution replenishes that body every two years, by the election of a class of senators, thereby giving continuity to that body. The debates in the constitutional convention of 1787, and those in the senate, and the procedure of that body, show that the senate of the United States is continuous, and in the case of Robertson, v. State, 109 Ind. 79, 10 N. E. 582, 643, the supreme court of Indiana, while holding that the senate of Indiana is not a continuous body, states the reason why it is not such, and recognizes the feature which establishes the continuity of the United States senate. Judge Niblack, in delivering the opinion of the court, says: "I feel quite assured that the senate of this state is not, like the senate of the United States, a continuous body. In the senate of the United States a majority constitutes a quorum, and, as there is always more than a quorum of qualified senators holding seats in that body, its organic existence is necessarily continuous. But in the senate of this state two-thirds of its members are necessary to make a quorum. As one-half of its members go out of office at the end of each legislative term of two years, that is to say, on the day after each general and biennial election, it becomes, at the end of each such legislative term, a disorganized body." The reasons given by this learned judge for stating that the United States senate is necessarily continuous, apply equally to both the United States senate and to the senate of New Jersey. A majority constitutes a quorum in both bodies, and in both there is always more than a quorum of qualified senators holding seats in the body. If it is necessarily continuous in one case, it must, for the same reasons, be necessarily continuous in the other. If the rule applicable to the United States senate is to be applied to the senate of this state, the thirteen so-called hold-over senators were the senate of New Jersey on January 9th, and as such had the exclusive and absolute power to determine "the elections, returns, and qualifications of its own members." Such has ever been the practice and usage in the senate of the United States. Every senator-elect must there present his credentials to the senate, composed of the hold-over senators, and must be inducted into office with the assent of that senate, so composed. Upon the question of the admission of a senator into the senate of the United States, no senator-elect has ever been treated as a member of that body. In every instance induction has been by the action of a majority of a quorum of the senate composed of senators theretofore inducted into office. This practice is necessarily based upon the assumption that the senate is always in existence, always composed of inducted senators, and that it has existed, as an ever-living senate, from the time of its organization to the present hour. I feel the more confidence in stating this view thus broadly because in the opinion of the court in this case, read by the learned chief justice, it is stated as an incontrovertible proposition that the United States senate "is an ever-living body."

It is insisted, however, that although it is true that the senate of the United States is a continuous body, yet the New Jersey senate is different from its great prototype. This contention is founded upon alleged differences between the constitution of the United States and the constitution of the state of New Jersey, and an alleged difference of practice prevailing in this state. An examination of the two instruments, and the practice thereunder, will not support this contention. The language of our constitution is substantially identical with that part of the constitution of the United States whose provisions have been held to create a continuous senate. Let us compare the two instruments. The constitution of the United States provides: Article 1, § 3: "1. The senate of the United States shall be composed of two senators from each state, chosen by ...