Opinion of the Justices , 56 N.H. 570 ( 1875 )

To the Honorable Senate of - the State of Hew Hampshire:

The justices of the superior court have been furnished with a copy of the preamble and resolution passed by the senate on the 3d inst., by which resolution their opinion is required in regard to the “ right of James Priest and John. Proctor to retain their seats in the senate,” upon the facts stated in the preamble.

We have, in reply to a resolution from the house of representatives, declined to express our opinion upon a past and completed act of the executive department of tlie government, performed in the discharge of a duty expressly required of that department by the constitution, upon the ground that such opinion, if given, could have no greater weight or authority than a criticism of one branch of the government upon the conduct of another coordinate branch; and that such official act on the part of the justices of this court would not be consistent with the grave duties imposed upon them by the constitution of the state.

June 8, 1875.

It appears by the preamble that the governor and council, assuming to discharge their duties as prescribed in Article XXXIII of the constitution of this state, declared that Messrs. Priest and Proctor appeared to be elected senators according to the provisions of that article, and that the governor did thereupon issue summonses to them, and that they, in obedience thereto, appeared, on the first Wednesday of June inst., at the senate chamber, and, with the other ten persons who had been summoned by the governor to appear at the same time and place, were qualified as senators by taking the oaths prescribed by the constitution. By this action of the governor and council, whether it be regarded as within or exceeding their constitutional powers, Messrs. Priest and Proctor received the usual credentials, which authorized them to assemble with the other ten senators and take the prescribed oath of office ; and they thereupon became senator’s, subject to the constitutional authority of the senate as final judges of the qualifications and elections of its members.

It further appears that the senate have proceeded to examine the returns of votes for senators, and have adjudged that Messrs. Priest and Proctor, having received a majority of all the votes legally cast and returned in their respective districts, were elected senators thereof.

By Article XXXY of the constitution, the senate are made “ final judges of the elections, returns, and qualifications of their own members, as pointed out in this constitution.” We are of opinion that from the action of the senate in this respect there can be no appeal. By the express terms of the constitution, the action of the senate is made_/inai. If the framers of our organic law had intended that some court or other tribunal should have the power, by writ of quo warranto or mandamus, or other process, to reverse the action of the senate, they would have so expressed themselves, in language which could not be misunderstood. We are therefore of opinion that when the senate adjudged that Messrs. Priest and Proctor were duly elected senators, their action was final and conclusive of the right of said Priest and Proctor to hold their seats as senators.

The foregoing opinion is based entirely upon the facts stated in the preamble to the resolution, and upon the assumption that when the senate undertook to act as final judges of the qualifications and elections of Messrs. Priest and Proctor, there was a constitutional quorum present.

E. L. CUSHING,

W. S. LADD,

ISAAC W. SMITH,

Justices of the Superior Court of Judicature.