CHAPTER XIII. LEGISLATIVE POWER IN THE STATES. 135. Organization and Government of Legislature. 141. Private, Special, and Local Legislation. 146-148. Title and Subject-Matter of Statutes. ORGANIZATION AND GOVERNMENT OF LEGISLATURE. 135. By constitutional provisions in the several states, or by common parliamentary law, the state legislature has the power (a) To make rules for its own government and for the regulation of its legislative proceedings. (b) To choose its own officers in each house. (c) To exercise an exclusive right of determination upon the election and qualification of its own members. (d) To control and discipline its members, for disorderly or contemptuous behavior, even to the extent of expelling them. (e) To appoint committees and define their powers, and authorize them to send for persons and papers in the course of their investigations. (f) To punish persons who may be guilty of contempts against it or breaches of its privileges. (g) To secure the uninterrupted service of all its members on the public business, by the exemption of each member from arrest on civil process while engaged in parliamentary duties or while going to or returning from the seat of government. (h) To keep, in each house, a journal of its proceedings, the publication and amendment of which are within its power and discretion. Rules of Procedure. The power of a legislative body to make rules for its own government necessarily includes the power to grant members leave of absence, to excuse them from voting, when proper, and to recognize what are called, in parliamentary language, "pairs." The state constitution sometimes fixes the number of members of either house who shall constitute a quorum for the transaction of business. If it does not, the number may be fixed by a rule of the house. In the absence of either a constitutional provision or a rule, the general rule is that a majority of the members of the house will constitute a quorum." Officers. As a general rule, each house of the legislature has the power to choose its own officers, although, in some states, the power of the senate or upper house to choose its presiding officer is taken away by the constitutional assignment of that position to the lieutenant governor. Besides the presiding officer, each house of a state legislature generally elects a clerk, sergeant at arms, and doorkeeper. Election and Qualification of Members. The power to determine whether a person claiming to be a state senator or representative was duly elected and is qualified to take his seat belongs exclusively to that branch of the legislature of which he professes to be a member. And its decision of the question cannot be challenged or inquired into by the executive or the judicial department. And it is held that the constitutional requirement which obliges the members of each house to take the oath to support the constitution is merely directory, at least to the extent that the omission to take the oath does not affect the validity of the statutes passed by them. But the constitutional provision 1 Wise v. Bigger, 79 Va. 269. 2 State v. Ellington, 117 N. C. 158, 23 S. E. 250. People v. Mahaney, 13 Mich. 481; Opinion of the Justices, 56 N. H. 570. Hill v. Boyland, 40 Miss. 618. that each house shall judge of the election and qualification of its own members does not prevent a court, on application by one claiming to be elected to the legislature for a mandamus to compel the canvassing board to issue to him a certificate of election, from determining whether or not he is eligible to the office." Expulsion of Members. The power of expelling members for adequate cause is generally granted in the constitution, but it would necessarily exist even without constitutional sanction, as it is a power which is indispensable for the proper discharge of those functions for which the legislature is created. The reasons for the expulsion, and the question whether the member was duly heard before sentence was passed upon him, cannot be inquired into by the courts in any collateral proceeding. Punishment of Contempts. In most of the states, the constitution gives power to each house of the legislature to punish its own members for disorderly conduct; and in many, by constitutional grant of authority, either house may punish any person not a member for disorderly or contemptuous conduct, though such punishment must not extend beyond the final adjournment of the session. But no American legislative body may claim such plenary power to punish for contempt as is possessed by the higher courts of justice. It seems clear that any person who violates the privilege of a member from arrest is in contempt of the house, and may be punished therefor by common parliamentary law. Again, any person guilty of violent, tumultuous, or disorderly behavior in the presence of the house is certainly liable to punishment. But, beyond this point, the power of legislative bodies to punish for contempts is not very clearly settled. The question of the extent of this power chiefly arises when it is sought to compel a witness to appear before a house of the legislature, or a committee of the same, and answer questions. In the case of congress, this power depends upon the nature of the inquiry conducted by the committee. If the inquiry relates to the organization or government of the house, the election or qualifica People v. State Board of Canvassers, 129 N. Y. 360, 29 N. E. 345. tion of its members, the observance of its lawful rules, the privilege of its members, or to impeachment proceedings, it is within the jurisdiction of the house, and the witness may be punished if contumacious. But the courts are unwilling to extend the power beyond these limits. In regard to the state legislatures, the power to punish for contempt apparently extends to all cases of witnesses before the house or a committee where the subject of investigation is properly legislative; that is, where it relates to the organization or government of the house, the election or privileges of its members, or some subject of intended or contemplated legislative action. Thus, a committee trying a contested election of a member of the house may summon witnesses, and if they refuse to appear, or to answer proper questions, they are in contempt of the house and may be punished. In a recent case it was held that a resolution of the United States senate appointing a committee to investigate newspaper charges of bribery and corruption of senators in connection with certain items of a tariff bill then pending, and to ascertain whether any senator had been or was engaged in speculating in stocks likely to be affected by such items, embraced a matter properly and constitutionally within the cognizance and jurisdiction of the senate; and a witness before such committee, refusing to answer proper and pertinent questions, was rightly punished for his contumacy. In another case it was ruled that an inquiry who, if any one, had violated a rule of the senate which requires that all treaties laid before them shall be kept secret until the senate shall take off the injunction of secrecy, is a matter within the jurisdiction of the senate; and a witness summoned before the senate on such an inquiry, who refuses to respond 7 See Kilbourn v. Thompson, 103 U. S. 168. Congress has enacted a law (Rev. St. U. S. § 102) that any person who, being summoned to appear as a witness before either house or a committee of either house, to give testimony or produce papers upon any matter under inquiry by the house, shall willfully make default, or who, having appeared, refuses to answer any pertinent question, shall be guilty of a misdemeanor, and punished by fine and imprisonment. The constitutionality of this act has been sustained. Chapman v. U. S., 5 App. Cas. D. C. 122. 8 In re Gunn, 50 Kan, 155, 32 Pac. 471. Chapman v. U. S., 5 App. Cas. D. C. 122. And see Ex parte McCarthy, 29 Cai. 395. to proper questions put to him, may be punished for contempt.1o But an investigation instituted by a house of the legislature for the mere purpose of discovering certain facts, or for political purposes, not connected with any intended legislation or other matters upon which the house could act, is not a legislative proceeding, and a witness cannot be compelled to appear and answer questions." And it should be remembered that it is always the priv ilege of the citizen to be excused from responding to any ques tions the answers to which might tend to criminate him or furnish a link in a chain of criminal evidence against him. And what the courts cannot compel him to do, in this respect, cannot be required of him by a legislative body or one of its committees.12 It has also been held that congress cannot compel the production of private books and papers of citizens for its inspection, except in the course of judicial proceedings or in suits instituted for that purpose, and then only upon averments that its rights in some way depend upon the evidence therein contained. Consequently a committee of con gress, or a commission appointed by it, cannot compel a private person thus to exhibit his books and papers for their examination, nor punish him for contumacy or contempt if he refuses to obey their command in that behalf.18 A person who has been punished by imprisonment for a contempt of a house of the legislature cannot maintain an action in damages against the members who voted to punish him, or the sergeant at arms who obeyed the command. of the house, as for an unlawful and malicious arrest and imprisonment.14 Privilege of Members from Arrest. The constitutions of most, if not all, of the states provide that members of the legislature shall be privileged from arrest, except for treason, felony, or breach of the peace, while in attendance upon a session of the legislature; and in some states this privilege also embraces the time which may be reasonably required by them for going to and returning from the place of meeting of the legisla 10 Ex parte Nugent, 1 Am. Law J. (N. S.) 107, Fed. Cas. No. 10,375. 11 People v. Keeler, 99 N. Y. 463, 2 N. E. 615. 12 Emery's Case, 107 Mass. 172. 18 In re Pacific Railway Commission, 32 Fed. 241. 14 Canfield v. Gresham, 82 Tex. 10, 17 S. W. 390. |