State ex rel. Werts v. Rogers

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 8th, 1894. On January 9th there were existent thirteen hold-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 *633 ■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 senator's, 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 ease are: First, whether this 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 tlie 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 respondents therefore depends upon the answer to the question, was either of these bodies the senate of New Jersey?

I have reached the conclusion, 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. McCra. El. *634 396; Prince v. Skillin, 71 Me. 367 ; In re Gunn, 50 Kans. 155 . This jurisdiction has also been upheld where it relates to the executive department, and the question Avas Avhich of two contestants Avas lieutenant-governor of a state. Attorney-General 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 claim to be the senate, a judicial question is presented.

This court, in Pangborn et al. v. Young, 3 Vroom 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 could 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 Avhich of the claimants, if either, has shown title to the office. This 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 neAv 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, and thereby gives continuity to that body. The debates in the constitutional convention of 1787, and those in the senate, and the procedure of that body, shoAV *635 that the senate of the United States is continuous, and in the-case of Robertson v. Smith, 109 Ind. 79 , 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 holdover 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 holdover 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- *636 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, section 3.—1. The senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof for six years, and each senator shall have one vote.

“ 2. Immediately after they shall be assembled, in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; and *637 if vacancies happen, by resignation or otherwise, during the recess of the legislature of any'State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.”

“Section 5.—1. Each house shall be the judge of the elections, returns and qualifications ■ of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each house may provide.

“ 2. Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.

“4. Neither house, during the session of congress, shall, withont the consent of the other,, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.”

The constitution of New Jersey provides:

“Article 4, section 2.—1. 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.

“ 2. 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. The seats of the senators of the first class shall be 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 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.”

“Section 4. Each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized *638 to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide.

“3. Each house shall'choose its own officers, determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, may expel a member.

“5. Neither house, during the session of the legislature, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.”

A comparison of these provisions in the two constitutions shows that they are exactly parallel, and it is apparent that the language of the New Jersey constitution of .1844 is a copy of provisions in the constitution of the United States, with only such changes as were rendered necessary by reason of the difference in the terms of office of senators in the two bodies nnd the constituencies they represent. The only real difference is that our senators are chosen for three years instead of six, and represent counties instead of states. But that one •constitution was modeled upon the other, seems to me beyond ■question. The reasons given ‘by Judge Niblack for the continuity of the United States senate, exist with reference to •our senate under language similar to that used in the constitution of the United States to create a continuous senate. Not only does this clearly appear from the language itself, but the history of the adoption of the provisions of our constitution, and the arguments and debate in our constitutional •convention, and the procedure thereunder, confirm this conclusion.

When the convention met in 1844, two different views were represented by the members of that body. One party was in favor of continuing the policy laid down in the constitution of 1776, and making the terms of office of the members of both houses annual, while the majority were in favor •of modeling our senate upon that of the United States. The convention, after a most interesting debate upon the report of *639 the committee on this point, favored the latter proposition, and settled the question by a vote of thirty to twenty-two.

The reasons influencing the majority were clearly stated by Mr. "Vroom, in his speech to the convention, June 7th, 1844. The composition of the senate .being under consideration, he ■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.”

On motion made to amend the term of senators from three years to two, Mr. Ogden, although advocating it, said: “The reasons given in favor of permanency of the senate are strong.”

That the statesmen in the convention of 1844 meant to make the state senate an ever-liying body, when they used in •our constitution the language of the federal constitution that made the United States senate continuous, cannot be more forcibly presented than by quoting the language of the learned judge who wrote the opinion in Fritts v. Kuhl, 22 Vroom 199 . He says: “That, in a convention in which these distinguished men exercised a controlling influence, a clause •should have been incorporated in our state constitution, with •the intention that it should receive an interpretation different from that which we may reasonably assume they knew had been applied to it in the unvarying practice of the federal government for nearly half a century, is scarcely conceivable.”

After the constitutional convention of 1844 had thus, for the purpose expressed, incorporated in our fundamental law the provisions of the constitution of the United States which make the United States senate “an ever-living body,” we find that the state senate at its first session, in 1845, proceeded to follow the exact mode of procedure, under the constitution •of 1844, that the United States senate at its first session adopted under similar provisions in the United States constitution.

*640 The action of the senate at its first session, under the constitution of 1844, was in strict conformity to the action taken by the senate of the United States when it first met in 1789. In both bodies a special committee was appointed and reported a mode of classifying the senators, which divided them into-three classes, and the term of each class was decided by lot, and each senate decided “ That the classes shall vacate their seats in the senate according to the order of numbers drawn for them, beginning with number one.”

Not only was the provision of our constitution, in reference to classification of senators, suggested by the provisions of the-federal constitution, but the exact .mode of dividing the classes used by the United States senate was adopted by the New Jersey senate. See 1 Bent. Abr. 14, 15, and Senate Journal 1845, p. 169.

The procedure of the first two sessions of the senate undoubtedly reflected the views of the framers of the constitution of 1844. Alexander Wurts, president of the constitutional convention of 1844, was a member of the senate of 1-845. He was also president pro tempore of the senate of' 1846.

It is important and instructive to note the difference between the steps taken to induct into office the senators-elect in 1845, and those taken to induct the senators-elect at the next legislative session in 1846.

The Senate journal of January 14th, 1845, shows that “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.” And thereafter each-senator-elect produced and presented his own certificate of election, and the same was read and the same action taken-thereon as in the case of Mr. Smallwood, and each thereafter took and subscribed the same affirmation before Mr. Small— *641 Avood, and thereafter took his seat in the senate, and then the record proceeds: “ The members of the senate present having all been sworn or affirmed, proceeded to the election of a president of the senate.”

In 1846, however, the senate did not proceed in this manner. It changed its mode of procedure, because there was then an existing senate composed of two hold-over classes—class two and class three drawn and named by the senate in 1845. In 1846, the record shows that Senator Wurts, being then a hold-over senator, was appointed president pro tempore, and the journal of January 13th, 1846, states: “ The president pro tempore having taken the chair, Mr.-Hulme presented the credentials of the Hon. Stephen R. Grover, elected a senator from the county of Essex, which Avere read and approved; and the oath prescribed by law having been administered to Mr. Grover, he took his seat in the senate.”

The same procedure was had with reference to all the other senators-elect who had been chosen by the counties to succeed the senators in class one, whose terms of office had expired at the close of the legislative year of 1845. These credentials, according to the journal, were in every instance presented, read and approved, and the oath of office administered to the senators-elect before they took their seats in the senate. It will be noted that, at the first session of the senate, each senator-elect presented the certificate of his own election; the next year the credentials of each senator-elect were presented by a senator of one of the hold-over classes. The credentials thus presented were “ read and approved.” Can there be any doubt of the significance of this procedure ? To whom were the credentials presented, if not to the senate ? And if there was no difference between the first and second sessions, if each was a “ new senate,” why was it considered necessary, after the senate was organized in 1845, that an inducted senator should in every instance present the credentials of a senator-elect. The procedure shows that Senator Wurts and his hold-over associates (composed of the second and third classes *642 ■of the senate of 1845) entertained the belief that they were the senate, and that the bearers of credentials, the senators-elect, could not participate in' the proceedings of the senate, even to the extent of presenting credentials, until they had been admitted to membership by the affirmative action of an existing and continuing senate. If there was not a senate in existence, to whom did Mr. Hulme present the credentials of Mr. Grover, as stated in the journal?

The organization of the senate in 1845 was necessarily ■done in the manner stated by the journal. It was necessary, because there was no senate then in existence which could judge of the credentials of senators-elect. The New Jersey ■senate, .in this respect, followed the procedure of the oz’ganiza■tion of the senate of the United States. Each took the same •action because of the necessity of organizing at the beginning •of their existence, by the consent of those claiming to be senators. The procedure of induction into the state senate, thus instituted in 1846, has never been changed. No senator, with but a single exception, has ever been admitted to membership, except by the presentation of his credentials by an inducted member and by the approval of those credentials by a vote of the senate, presided over by a president pro tempore or permanent. The single exception is found in the journal of January 12th, 1875, which states that “ Mr. Taylor moved that, in consequence of the Hon. J. Howard Willets not ¡having his credentials present as senator-elect from the county ■of Cumberland, he be permitted to take the oath of office, and to file his credentials with the secretary at his earliest convenience, which was agreed to. The oath prescribed by law having been duly administered to Mr. Willets by the president pro tempore, he took his seat in the senate.”

This exception shows that the senate composed of the holdover senators (which, according to the journal on that day, were fourteen in number) exercised the power of admitting a senator without the presentation of his credentials. They determined his election, returns and qualifications without the presence of. any certificate of the result of the election.

*643 Continuing the history of the senate from 1847 to 1893, inclusive, the unbroken custom has been for the president of the senate, permanent or pro tempore, to administer the oath fo those admitted to the body, and the record of each of these years shows that these oaths were administered in open session, whether there was or was not a contest as to a seat. An •examination of the cases where the right of the member-elect ■to take a seat in the senate has been impeached, shows that no senator-elect has ever been permitted to take his seat in the senate as a matter of right, upon the mere presentation of his credentials. In every instance the senate has acted as an organized, existing senate, and the senate when thus acting has, in every instance, been composed exclusively of inducted senators, acting as an organized body. No senator-elect since 1845 has ever been inducted into office as a senator except by permission or affirmative action of the senate. ■

The cases of contest shown in the record are as follows: John Torrey, Jr., senator-elect from Ocean county (Senate Journal, January 12th, 1869); John Hopper, senator-elect from Passaic county {Id., January 13th, 1874); Edward.F. McDonald, senator-elect from Hudson county {Id., January 14th, 1890); William J. Keys, senator-elect from Somerset county {Id., January 13th, 1891); Robert S. Hudspeth, senator-elect from Hudson. county {Id., January 12th, 1892). In each of these years the journal shows that the roll of senators was called by the secretary chosen at the preceding session of the senate, and that only the names of the hold-over ■senators were called as members of the then existing senate. In every instance a president pro tempore was chosen by the hold-over senators, acting as the senate, and was in the chair as presiding officer of that body, before any credentials of senators-elect were presented to the senate. These credentials were always presented by a hold-over senator, and the returns and protests were read and referred to a committee, or otherwise disposed of by the senate acting as a tribunal having absolute power over the subject-matter. In Mr. Torrey’s case, in 1869, fourteen hold-over senators acted as the senate, *644 and as such elected a president pro tempore. The credentials of this senator-elect were presented to this senate by a member thereof, one of the hold-over senators, and on motion were referred to the committee on elections, with the petition accompanying them. Then, upon motion of a hold-over senator, the record states that he “ was allowed ” to take the oath prescribed by law. The oath was administered to him by the president pro tempore of the senate. After all this action of the senate, and not before, the record shows that he “took his seat in the senate.” The only difference in Mr. Hopper’s-case, in 1874, was that the protest against his election was read and laid on the table, this senate being composed of fifteen hold-over senators, and his credentials were “ read and approved ” by the senate, and thereafter, on taking an oath in like manner, “ he took his seat in the senate.” In the contests in 1890, 1891 and 1892 similar action was taken by the senate, the protests in each case being read and referred to the committee on elections, the oath administered in open senate by its presiding officer, and then, and not until then, the senator-elect taking his seat as a senator. The existence of the power to thus receive protests and act thereon, to waive the production of credentials (as in 1875), to adopt special motions for admission without adjudication upon returns, to choose a president pro tempore by the hold-over senators, who presided and administered the oath to the incoming senators, can be supported only upon the theory that the senate is an everliving body, the vitality of which is not interrupted by .the expiration annually of the terms of a class of senators composing one-third of its membership.

At the commencement of the legislative year of 1887 there were fourteen hold-over senators, and they alone acted as the senate j they repeatedly by motion and by a majority vote postponed the organization of the senate from January 11th to February 1st, and, on this last date, the hold-over senators, still acting as the senate, elected a president pro tempore, and proceeded as a senate to induct the senators-elect into office in the same way as heretofore stated. This precedent *645 and the record of votes taken clearly show that it was then considered unquestioned that the hold-over senators constituted the senate, and that senators-elect had no right to participate in the action of the senate until they were inducted into office by the senate composed of hold-over senators in the mode that had been recognized as proper for nearly half a century.

From 1846, when Senator Wurts was chosen president pro tempore of the senate, to the present time, no one has ever been admitted to the senate until after the election by the hold-over senators of a president pro tempore; nor has the •holder of credentials from any county ever been admitted to the senate (except in the case of Senator "Willets, in 1875, hereinbefore referred to), except upon the presentation to that body of his credentials and its acceptance or approval of the same. No senator-elect has ever been admitted except upon the approval of his credentials or the waiver thereof by a senate, presided over by a president; nor is there a single instance, since 1845, where a senator has been inducted except by taking the oath of office in open senate, administered to him by the president of that body. The senate journals from 1849 to 1893, inclusive, show in every instance that the holdover senators only were called to order as the senate by the secretary of the preceding session. The journal of the sessions of 1846, 1847 and 1848 do not show any participation, by vote or action in the senate, of any senators-elect, although it is stated by the secretary in those years that both senators and senators-elect appeared in their seats. The journals of those years do, however,-show that no senator-elect was ever president or nominated any officer, or ever made any motion, voted upon any question, or participated in any way in the proceedings of the senate until after his credentials had been presented by an inducted senator and been received and approved by the senate. Only after this was done were these •senators-elect sworn in by the president of the senate. After all this action by the senate, and not before, do the journals of these years state, as to each senator-elect, “he took liis>,seat *646 in the senate.” The journal of 1849, and every journal since,, expressly shows that the senate called to order consisted only. of the hold-over senators. No others are stated to have appeared in their seats or to have been called. This was so in-years when there were contests and in years when there was no contest.

The question in this ease is not what the hold-over senators should do in the performance of their constitutional duty, but whether they had the power and authority to act as a senate under the constitution. If they had this power, this court cannot review their action for any reason whatever. “The question of power alone can be considered by this-court.” Fritts v. Kuhl, 22 Vroom 206 . This court has no-right to instruct the senate as to matters which involve its duty only and not its power. Id. 208 .

This history of the senate of New Jersey, showing a claim of continuous existence on the part of hold-over senators for nearly fifty years, without protest, seems to me to be a complete answer to the insistment that the contention that the senate is an ever-living body is a novel one.

The unbroken usage .and construction of our constitution, for nearly fifty years by the senate itself, should, under the authority of Fritts v. Kuhl, settle the question of the continuity of the senate and the right of the hold-over senators to judge of the elections, returns and qualifications of senators-elect, unless the constitution of the state contains some clear and express provision which is incompatible with this result. That case cites with approval the following language-of Mr. Cooley, which is especially applicable to the question now before us: “ When there has been a practical construction which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction present themselves to the courts with a plausibility and force-which it is not easy to resist.”

It is insisted, however, that our state constitution did not create a continuous senate, because it does not, in terms, provide for an always-existing presiding officer, as does the con *647 stitution of the United States when it makes the vice president the president of the senate, or as did our first state constitution, which made the governor the “ constant president ” of the legislative council. It is argued that the permanency of the presiding officer creates the permanency of the body itself, as under such a provision there is no necessity for periodical reorganization. It is also argued that the provision of our constitution that the senate shall be composed of one senator from each county in the state, elected by the legal voters from each county, is obviously to provide that each county shall be represented at all times by a senator, and have a voice in the senate, through him, on every measure or question that comes before it. It is further insisted that the continuity of the state senate is negatived by the constitutional provision-requiring the two houses composing the legislature to meet separately, on the second Tuesday in January, after each election.

I cannot find in these provisions, or in any other clause in the constitution, anything which will annually disorganize the senate, as the house of assembly is disorganized every year by the expiration of the terms of all of its members. How is the existence of a permanent officer necessary for a continuous senate? The senate has express power under the constitution to choose its own officers, and whether it exists as a senate expiring every year, or as a continuous senate, that power can be exercised at any session. The death or resignation of the president of the senate would have no-influence upon the continuity of that body. "Whenever the-senate meets and has no presiding officer, it can elect one and proceed with its business. Under the constitution of 1776,. all the members of the legislative council were elected annually, for one year. So careful were the framers of that instrument to provide for the yearly disorganization of that body, that they required the members of the council to take-a constitutional oath that -they would never, by any act, word or proceeding, do anything which would change their term of office beyond the annual elections. The same constitution *648 provided that the governor of the state should be chosen aunually by the joint meeting of the legislative council and the house of assembly, and each governor when thus chosen became “the constant” presiding officer of the council. The council was not, however, a continuous body because a “ constant” presiding officer was provided for it, and the senate does not fail to be a continuous body because it has no constant president, while it has the power at all times to elect its own president. Its continuing existence gives it the continuing power to always have a president by its own action as a senate.

The claim that the senate of the United States is a continuous body does not rest upon the fact that the federal constitution provides an always-existing presiding officer. The provisions of that instrument upon this point are these:

“The vice president of the United States shall be president of the seuate, but shall have no vote unless they be equally divided.

“The senate shall choose their other officers, and also a president' pro tempore in the absence of the vice president or when he shall exercise the office of president of the United States.”

It would be difficult, ih these provisions, to find any sup7 port for the continuity of the United States senate. The absence of a presiding officer does not work the dissolution of a legislative body. What shall be done in the absence of' the vic.e president is provided for by the federal constitution •, what is to be done in the absence of the president of our state senate is provided, in the absence of rules adopted by the body, by ordinary parliamentary procedure. Our senate has the power to elect its presiding officer, and thus provision is made, which is equally efficacious with that contained in the constitution of the United States, to always have a president of the senate. Would anyone contend that if the vice president of the United States and the president pro tempore were both absent or dead, or unable to act, that the United States senate would cease to be a continuous body ? It could and *649 would, under such circumstances, exercise the inherent power of every legislative body under universal parliamentary law, and choose a presiding officer, and proceed with its business, just the same as if nothing had happened to affect its existence or its powers.

An examination of the provisions of our constitution as to what constitutes the senate and a consideration of similar provisions in the federal constitution, will also fail to disclose any ■substantial difference affecting the question of the continuity of the two bodies.

The constitution of the United States provides that the senate shall be composed of two senators from each state, yet no one has ever contended that the fact that certain states were not represented in the senate deprived that body of its continued existence or affected the power of the other senators to act so long as a quorum remained to do business. This court has also said, in Mueller v. Egg Harbor City, 26 Vroom 247 , that “it has never been supposed that the death of a member of a state legislature suspended its power to enact laws until the vacancy was filled.” This is true because the quorum remains to do business. I have failed to find any text-writer, authority or precedent to uphold the proposition that the expiration of the terms of office of less than a quorum of a legislative body suspends.its existence or any of the powers given to it by the constitution. If the United States senate continues to exercise its powers as such when certain states are unrepresented therein,'it is difficult to perceive how the fact that all the counties of our state are not actually represented in the state senate at the commencement of the legislative session can deprive that body of its continued existence and right to act as the senate so long as a quorum is present. If all of the counties in the state having senators whose terms ■expired failed to elect senators, or elected those whom the constitution declared should not be members of the senate, would anyone doubt that the hold-over senators would still be a senate if the quorum provided for in the constitution remained? If they would be the senate in such a case, it is *650 difficult to conceive of any case in which they would not constitute a constitutional senate.

The case of Mueller v. Egg Harbor City, 26 Vroom 245 , would seem to recognize the principle that a legislative body is not rendered incompetent to act by reason of a vacancy in its membership by death, resignation or otherwise, if a quorum remains. That was a case in Egg Harbor City. There-were, at the time of the passage of an ordinance, two vacancies in the common council, caused by resignation, which the mayor had power to fill. He had not exercised this power, and only six of the ten members of the council convened and voted for the ordinance. The charter required the concurrence of a majority to pass ordinances. The court says: “ In. this instance six members convened and voted for the ordinance. A qucfrum was therefore present, and a majority of the whole number of members voted in the affirmative. A legislative body thus constituted is not rendered incompetent to act by the death or resignation of one or more of its members so long as there continues to be the quorum required by the statute. It has never been supposed that the death of a member of a state legislature suspended its power to enact, laws until the vacancy was filled.”

Accepting this decision as a correct statement of the law,, and applying the principles upon which it is based to the-present case, I am unable to perceive what force there is in the insistment that the senate must-at all times be composed of one member from each of the twenty-one counties of the-state. If neither death nor resignation disorganizes the senate, so long as a “ quorum ” remains to do business, it is because its continued existence does not depend upon every-county having at all times a member in the senate.. If this- “ quorum ” is a senate for any purpose under the constitution, it is a senate for all purposes mentioned therein, and its existence is not interrupted or affected because there are senators-elect claiming seats in that body. The presence of these-persons, and their presentation of credentials, has no effect whatever except to call upon this tribunal, the senate, to ex *651 ercise its constitutional power as to these claimants, by judging of their elections, returns and qualifications. Our constitution and that of the United States are practically alike so far as their provisions affect this question. The constitution of the United States says: “ The senate of the United States shall be composed of two senators from each state.”' Our constitution provides that “ the senate shall be composed of one senator from each county in the state.” The fact that at times the United States senate has not been thus composed, either by reason of civil war, failure of the state legislatures to act, or any other reason whatever, has never affected its continuity, either in the estimation of the senate itself or of any text-writer or judicial authority. Unless we are to adopt a different rule in this state, and to do so without precedent or authority, our senate, so long as it has a “quorum,” will,, like the senate of the United States, continue to be an ever-existing body, unaffected by the fact that certain counties are-temporarily for any reason, unrepresented.

It is also contended that, the New Jersey senate is not continuous because our constitution provides that the “houses shall meet separately on the second Tuesday in January next after the said day of election.” It is argued that this provision negatives the idea of a continuous senate. So far from this being a supportable inference, this section may, without violence to its obvious intent, be held to be wholly irrelevant to the question before us. The direction to meet on a certain-day or days could be as well given to a continuous body as to-a novel one. Section 4, article 1, of the federal constitution provides that “the congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.”'

The congress consists of the senate and house of representatives. In that constitution each of these bodies is designated as a “house.” The direction that congress shall assemble-annually has never been construed to affect the continuity of the senate of the United States, nor have I found any writer who alludes to this direction for annual meetings as in any *652 way affecting this question of continuity. The federal senate and the state senate may be called upon to meet at any time by invitation of the executive. For legislative purposes the houses constituting the congress, and the houses constituting our legislature, are directed to meet at certain times, but it is difficult to perceive why a continuous senate could not, as well •as a novel body, be the subject of this constitutional mandate to meet on a certain day. Nor is it'perceived why the words requiring “ each house ” to meet annually should be construed to disorganize the state senate, when a like requirement in the federal constitution does not affect the continuity of the federal senate. The vitality of the body depends upon the existence of a “ quorum ” capable of doing business. That quorum constitutes a senate. Its action is the expression of •the will of the senate, and no authority can be found which states any other conclusion. All difficulty and confusion in constitutional construction is avoided by applying the rule laid down by Judge Niblack, that the continuity of the body ■depends upon the fact that in the senate 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.

Every other element, power or condition of the senate can be absent except that stated by Judge Niblack, and yet it will still be a continuous body. The senate of the United States remains a continuous body because two-thirds of its members are always, in contemplation of the constitution, in existence. That body is an ever-existing senate, although the vice president may be acting as president and the president pro tempore be absent or dead. An examination will, I am confident, fail to find any provision in the federal constitution which can be successfully invoked, upon principle, to sustain the proposition that the senate is an ever-living, continuous body, except that one which provides for the division of the senate into three classes, two of which always hold over, and the further provision that makes a majority of the whole number of possible senators a “ quorum ” to do business and act as the *653 senate for all purposes. These provisions were, by the convention of 1844, incorporated into our state constitution, and,, under the case of Fritts v. Kuhl, should have the same force and effect as were theretofore given to them in the construction of the federal constitution.

In the argument of counsel for Mr. Rogers, great stress has been placed upon section 85 of the Election act, which makes the certificate of election prima fade evidence in the organization of the two houses.

The origin of this section is found in section 94 of “An act to regulate elections,” passed March 12th, 1839 (Pamph. L., p. 229), which provides “ that the legislative council and general assembly shall convene and hold their sessions in the state-house at Trenton, and shall commence their session on the fourth Tuesday of October next after they shall have been elected; and in the organization of each house the certified copies of the statements of determination made under the direction of the seventy-eighth, section of this act shall be deemed and taken to be prima fade evidence of the right of the persons therein mentioned to seats in the houses respectively ” to which they shall have been elected.

In 1839 both houses—the legislative council and the general assembly—were yearly bodies, expiring annually as to their entire membership.

The constitution of 1776, then operative, vested the government “in a governor, legislative council and general assembly.” Under it the counties severally chose annually, at the same election, one person to be a member of the legislative council and three members of .assembly, with the right of a majority of the representatives in council and general assembly convened, to add to or diminish the number or proportion of the members of the assembly for any county. Under this instrument the assembly and council, “ when met,” were severally made the judges of the qualifications and elections of their own members. The constitution was silent with reference to “returns.” It ‘appears that the act of 1839 was passed in view of this omission in the constitution, and the *654 legislature had undoubtedly a right, in the absence of constitutional provision in reference thereto, to declare that certified copies of the statements of determination of election made by the board of county canvassers should be prima facie evidence of the result of the election.

When the convention framed the constitution of 1844 it provided therein not only that the senate should be the judge of the elections and qualifications of its members, a§ provided in the constitution of 1776, but it went further and' gave the senate like power as to the “ returns.” The power as to all these matters affecting senators-elect was thereafter vested in the senate itself. The act of the legislature of 1846, passed -after the adoption of the constitution and after the second meeting of the senate elected under that instrument, cannot, therefore, affect or in any way abridge th'ese powers of the senate given to it by the constitution of 1844. This view is recognized as “invincible” in the opinion of the court, read by the Chief Justice, if the proposition is established that “ the senate is ever-living ” If, therefore, it has been demonstrated that the state senate, like the federal senate, is a continuous body, the act of 1846 is void in so far as it purports to establish a rule controlling its action in a matter committed to the exclusive jurisdiction of the senate by the constitution.

The Supreme Court has clearly stated the limitation of the power of the legislature in this matter, in reference to the house of assembly, and the same rule applies to the senate under the same constitutional provision. The court says: “ The legislature have the power to determine the source from which the certificate of election shall issue, but the house of assembly being, by the constitution, the judge of the election of its own members, can go behind the certificate whether issued by a board of canvassers or by order of a justice of the Supreme Court, and finally decide who is entitled to the seat. Ruh v. Frambach, 18 Vroom 85 , 88.

If it was ever the intention of the legislature to attempt to give any force or validity to the certificates of the county boards of canvassers, except to make them evidence, in the *655 •first instance, of the right of the holders thereof ¿o claim as members-elect, an examination of the record and history of the senate will show that the act has remained a dead letter ■since its passage. The record shows that the senate has never given to the certificates of election any force or validity not •entirely subject to the will of the senate. In the unbroken history of the senate since the act was passed in 1846, no member has ever been admitted upon his credentials as a matter of right. The senate, in every instance, according to its record, has passed upon these credentials. Sometimes it has waived their presentation, at other times it has admitted the senator-elect and referred the credentials to the committee •on elections for trial thereafter, but always, the record shows, without a single exception, the senate has asserted its right to ■decide upon the admission of the members-elect. No senator-elect has ever been inducted except with the consent of the senate as an existing body. In every instance these credentials have been presented by a hold-over senator, or, if presented after the first meeting in January, then by a member of the senate, theretofore inducted into office by the action of the senate.

With this unbroken line of precedents, it may be stated with confidence that' a certificate of election entitles the holder to no right whatever as against the constitutional power of the ever-existing senate to take such action thereon as it may decide to be proper.

The consideration stated having led me irresistibly to the conclusion that the senate, at the commencement of the legislative session of 1894, was a continuous body, composed of the two classes of hold-over members, it necessarily follows that, on the 9th of January, 1894, the thirteen hold-over senators who composed the two classes of senators whose terms had not expired at that time were the senate of New Jersey, and as such had the exclusive right to decide upon the qualifications, elections and returns of the eight senators-■elect. If this be established then the body composed of seven .-senators-elect and four hold-over senators was not, at that *656 time, the true senate of New Jersey, authorized to determine-the elections, returns and qualifications of these senators-elect, and- had no power to elect a president of the senate.

The question still remains, was the body which elected Mr. Adrain its presiding officer.the senate of New Jersey ?

The constitution provides, in reference to the senate and assembly, that “ a majority of each shall constitute a quorum to do business.” Art. 4, § 4, ¶ 2. This paragraph should be construed in connection with article 4, section 2, which provides that “ the senate shall be composed of one senator from each county in the state.” These taken together would require in this state eleven senators to constitute a “quorum” to do business. There was at that time no rule of the senate in existence enabling the nine senators present to compel the attendance of absent members. The rules adopted in 1893 had been expressly limited in their application to that session of the senate, and the power to make rules necessarily carried with it the power to fix the time during which they would be operative, subject always to the power of the senate to create or change rules at any time in its discretion.

Mr. Adrain was not, on the 9th of January, 1894, president of the senate by reason of his election as such at the session of 1893, because the senate in 1893, in the exercise of its power to choose its presiding officer, had limited his term of office to that session.' It is further contended on his behalf that the four hold-over senators ratified the proceedings of the nine by their acquiescence, and that if that contention cannot be sustained he is nevertheless the president of the senate, because nine senators were two more than a majority of the thirteen senators then holding office, and that consequently their action was the action of the senate.

To support this contention the court has been referred by counsel to the standing rule of the United States senate, which provides that “A quorum shall consist of a majority of the-senators duly chosen and sworn.” Bare. Dig., 1868, p. 233.

That this is the present rule of the United States senate is unquestioned, and its application to legislation in that body *657 is such that the most important measures may be enacted without the assent of a number equal to a majority of all the senators to which all the states are entitled under the constitution. "Within a few weeks a most important measure, affecting the coinage of silver, was passed in the United States senate by forty-four affirmative votes, there being then two or three vacancies existing in the representation of the forty-four states.

The constitution of the United States provides that a “majority of each [house] shall constitute a quorum to do business,” and this provision was copied into our state constitution of 1844. If the above rule, now in force in the federal senate, had been in force at the time of the adoption of our constitution, in 1844, the contention based thereon would be controlling. The present rule, however, was not in force in 1844, and consequently its definition of a “quorum” was unknown to the able statesmen who composed the constitutional convention of that year. On the contrary, the opposite rule then prevailed. Prior to 1864 it was held by the senate of the United States that a “ quorum ” co.uld be formed only by the presence of a majority of all the senators possible from all the states. On June 30th, 1862, Senator Sherman introduced the following resolution: “ That a majority of the senators duly elected and entitled to seats in this body is a constitutional quorum,” which met with such opposition that it was not until the 1st day of May, 1864, that it was finally adopted in the following form: “Resolved, That a quorum of the senate consists of a majority of the senators duly chosen.” The rule adopted was modified in 1868 by adding the words “and sworn.” This rule, changing the basis of the “ quorum,” had its origin in the fear that the senate of the United States, by reason of secession and other events, was in danger of being frequently without a quorum, if the rule requiring a majority of all the senators possible under the constitution was adhered to. The necessity for the adoption of Mr. Sherman’s resolution has passed away, but the rule has been continued in its present shape since 1868. The *658 interesting debate upon this resolution during the two years that it was pending shows conclusively that, at the time of the adoption of our constitution in 1844, the unchallenged practice of the United States senate required the presence of a majority of all possible senators to. constitute a quorum. Gong. Globe, 1861-62, 1863-64, Index, tit. “Quorvm.” This being the view held in the United States senate when our convention met in 1844, it is safe to assume that when its members adopted the language of the United States constitution as to a “ quorum,” they meant to use it in the sense then accepted by the senate of the United States. I therefore assume that, on the 9th of last January,, the presence and participation of at least eleven senators were necessary to constitute a quorum of the senate of New Jersey. At the usual hour for commencing the annual session of the legislature there were but nine senators in the chamber, and it was not within the power of these nine to choose a president of the senate or do any other business as a senate. They had, however, the right common to every body—to choose one of their number to preside over their deliberations. The constitution confers upon a number less than a quorum the right to adjourn from day to day, and that this might be done in an orderly manner, it was proper that' one of such minority should be called upon to preside. The person thus chosen to provide form for the doings of this minority would not, however, be the president of the senate, because the senate was not present at his election. It is further contended that after Mr. Adrain had, upon motion adopted by nine senators, taken the chair, the four other hold-over senators appeared and thus supplied the number necessary to constitute a quorum. If the four had, as a matter of fact, joined the nine in acting upon the resolution which is depended upon to secure Mr. Adrain’s title, there yrould be good ground for the contention in this case that he was elected president by their votes. The meeting of the thirteen hold-over members would then have constituted the senate of New Jersey, and they could have proceeded to the enactment of laws, and have done all other *659 acts that a senate of twenty-one members may do. The four, however, insist that they did not join the nine, that they did not act with them, and that they were present only for the purpose of demanding the induction of certain senators-elect •upon the presentation of their credentials. They further ■insist-that their demands meeting with refusal, they withdrew from the company of the nine. The evidence in this case •clearly supports this claim, and the mere presence of the four in the senate chamber, in the attitude of protestants, and distinctly refusing to act with the nine, except upon certain conditions which were denied, cannot be held to have supplied the “quorum” necessary to do business. Mr. Adrain was, therefore, only presiding officer of- a body consisting of nine senators, and was not elected presidént of the senate by a “ quorum ” of that body.

In view of these conclusions, I am of the opinion that judgment of ouster should be entered against both respondents.