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§ 3. Members of the Assembly shall be elected in the year eighteen hundred and seventy-nine, at the time and in the manner now provided by law. The second election of members of the Assembly, after the adoption of this Constitution, shall be on the first Tuesday after the first Monday in November, eighteen hundred and eighty. Thereafter, members of the Assembly shall be chosen biennially, and their term of office shall be two years; and each election shall be on the first Tuesday after the first Monday in November, unless otherwise ordered by the Legislature.
Election.-If a majority of the votes have been cast for a disqualified person, the one who received the next highest number is not to be returned as elected.
Saunders v. Haynes, 13 Cal. 145; State v. Giles, 1 Chand. 112; Comm. v. Cluley, 56 Pa. St. 270. But see Stewart v. Hayes, 3 Ch. L. N. 117; Gulick v. New, 14 Ind. 93; Carson v. McPhetridge, 15 Ind. 327; People v. Chute, 50 N. Y. 451
§ 4. Senators shall be chosen for the term of four years, at the same time and places as members of the Assembly, and no person shall be a member of the Senate or Assembly who has not been a citizen and inhabitant of the State three years, and of the district for which he shall be chosen one year, next before his election.
8 5. The Senate shall consist of forty members, and the Assembly of eighty members, to be elected by districts, numbered as hereinafter provided. The seats of the twenty Senators elected in the year eighteen hundred and eighty-two from the odd-numbered districts shall be vacated at the expiration of the second year, so that one-half of the Senators shall be elected every two years; provided, that all the Senators elected at the first election under this Constitution shall hold office for the term of three years.
§ 6. For the purpose of choosing members of the Legislature, the State shall be divided into forty senatorial and eighty assembly districts, as nearly equal in population as may be, and composed of contiguous territory, to be called senatorial and assembly districts. Each senatorial district shall choose one Senator, and each assembly district shall choose one member of Assembly. The senatorial districts shall be numbered from one to forty, inclusive, in numerical order, and the assembly districts shall be numbered from one to eighty, in the same order, commencing at the northern boundary of the State, and ending at the southern boundary thereof. In the formation of such districts, no county, or city and county, shall be divided, unless it contain sufficient population within itself to form two or more districts; nor shall a part of any county, or of any city and county, be united with any other county, or city and county, in forming any district. The census taken under the direction of the Congress of the United States, in the year one thousand eight hundred and eighty, and every ten years thereafter, shall be the basis of fixing and adjusting the legislative districts; and the Legislature shall, at its first session after each census, adjust such districts and reapportion the representation so as to preserve them as near equal in population as may be. But in making such adjustment no persons who are not eligible to become citizens of the United States, under the naturalization laws, shall be counted as forming a part of the population of any district. Until such districting as herein provided for shall be made, Senators and Assemblymen shall be elected by the districts according to the apportionment now provided for by law.
§ 7. Each House shall choose its officers, and judge of the qualifications, elections, and returns of its members. 2
1 Ark. V, 14; Mich. IV, 10; Mo. IV, 19; Neb. II, 10; N. J. IV,4,3; N. Y. III, 10; N. C. II, 18, 20, 22;' Or. IV, 11; 'S. C. II, 15;' Va. V,7; W.'ya. VI, 24; Wis. IV, 8.
2 U.S. 1,5 (1); Ala. IV,8; Ark. V, 11; Colo. V, 10; Del. II, 6; Fla. IV, 6; Ga. IJI, 4; Ill. IV, 9; Ind. IV, 10; Iowa, III, 7; Kan. II,8; Ky. II, 20; La. 34; Me. IV; Part III,3; Md. III, 19; Mich. IV, 10; Miss. IV, 10; Mo. IV, 17, Neb. IIÍ,7; Nev. IV, 6; N. J. IV,4,2; N. Y. III, 10; N. C. II, 22; Ohio,
11, 68; Or. IV, 11; Pa. 1, 13; R. I. IV,6; S. C. II, 14; Tenn. II, 11; Tex. III, 8;' Vt. Part II, 7; Va. V, 7; W. Vá. VI, 24; Wis. IV, 6.
Qualifications of members.-Whether a Senator has been regularly elected is a question exclusively for the Senate. Members elected for an extra or special session must give way to regularly elected members for that Congress. The House is to judge of the election of its members, and the returns are only prima facie evidence of election.3 A State law requiring votes to be returned within a certain time is directory only, and if not so returned are to be counted, if opportunity is had to count them. The refusal of the executive of a State to grant a certificate of election will not prejudice the right to a seat. The certificate may be followed by another under a changed condition of the facts.7 A certificate may issue on an amended return of votes, 8 and a supplementary return is entitled to be received.' The governor may revoke the certificate for fraud. 10 The qualifications of members being fixed by the Constitution, additions cannot be required by State legislation or other acts.11 If the House is unable to decide which of two is entitled to his seat, it must be declared vacant. 12 One who was allowed to take his seat on a prima facie case, but was afterwards ousted by a competitor rightfully elected, cannot be deemed to have been a member. 13 1 Anonymous, 12 Fla. 686. 2 Gehlson & Claibborne's Case, 2 Cong. El. Cas. 9.
3 Chrisman v. Anderson, 2 Cong. El. Cas. 328; Spaulding o. Mead, 1 Ibid. 157.
4 Brockenborough v. Cabell, 2 Cong. El. Cas. 79. 5 Richard's Case, 1 Cong. El. Cas. 95.
6 Richard's Case, Clark & H. 95; Clement's Case, Cont. El. Caso 1864-5, 366.
7 Wallace v. Simpson, Cont. El. Cas. 1865–71, 552. 8 Sleeper o. Rice, Cont. El. Cas. 1864-5, 472. 9 Archer v. Allen, 2 Cong. El. Cas. 169; Brockenborough o. Cabell, Ibid. 84. 10 Morlon v. Daily, 2 Cong. El. Cas. 403. 11 Barney v. McCreery, 1 Cong. El. Cas. 167; Turney v. Marshall, 1 Cong. El. Cas. 167; Trumbull's Case, Ibid. 618. 12 Letcher v. Moore, 1 Cong. El. Cas. 715. 13 Bowman v. Coffroth, 59 Pa. St. 19.
§ 8. A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner, and under such penalties, as each House may provide.
U.S. 1,5 (1); Ala. IV, 10; Ark. V, 14; Conn. III,7; Del. II,6; Fla. IV, 8; Ga. III, 1, iii; Iowa, III, 8; Me. IV, Part III,3; Mích. IV, 8; Minn. IV, 3; Miss. IV, 12; Mo. IV, 18; Neb. II, 7; N. J. IV, $ 4,2; Pa. II, 10; W. Va. VI, 24; Wis. IV, 6.
§ 9. Each House shall determine the rule of its proceed. ing, and may, with the concurrence of two-thirds of all the members elected, expel a member.2
1 U.S. 1,5 (2); Ala. IV, 11; Ark. IV, 14; Conn. III, 8; Del. II, 7; Fla. IV, 6; III. IV,
9; 'Ind. IV, 10; Kan. 11, 8; Iowa, III,9; Ky. I1,21; La. 39; Md. III, 19; Mass. Part II, Ch. 1, $_2, 7, 83, 10Mich. IV, 10,
Minn. IV, 4; Miss. IV, 14; MO. IV 19; Neb. II, 10; Nev. III, 7; N. H. Part II, 22, 31; N. J.JV, 43; N. Y. III, 10; Ohio, 11, 8; Or. IV, II; Pa. I, 13, II, 11; R. 1. IV, 7; S. C. II, 15; Tenn. II, 12; Tex. III, 16; Va. V,7; W. Va. IV, 28; VI, 24; Wis. IV, 7.
2 Ala. IV. 11; Ark. V, 12; Ga. III, 4; Ill. IV, 9; Mich. IV, 9; Mo. IV, 17; Md. III, 19;'Wis. IV, 7; 'Tex. III, 2.
See U.S. Const. I, 5 (2).
Rules of its proceedings. - An express power to make laws was not necessary to enable the legislature to make them. The express grant of power to punish for a contempt does not exclude the power to punish others than members of their own body,2 in secret as in open session.3 The implied power to punish for contempt shall not extend beyond its known and acknowledged limit of tine and imprisonment, but the imprisonment must terminate with the adjournment. The power to punish for disobedience and contempt is a necessary incident to the power to require and compel attendance.5. The warrant need not set forth the facts constituting the alleged contempt,6 the legislative body being the only judge of its own privileges and contempts.? A member may be expelled for any misdemeanor which, though not punishable by statute, is inconsistent with the trust and duty of a member. 8 1 McCulloch v. Maryland, 4 Wheat. 316. 2 Anderson v. Dunn, 6 Wheat. 204; Bolton v. Martin, 1 Dall. 296; Nugent's Case, 1 Amer. Law J. 139. 3 Nugent's Case, 1 Amer. Law J. 139 4 Anderson v. Dunn, 6 Wheat. 204. 5 Stewart v. Blaine, 1 McAr. 453; Anderson o. Damn, 6 Wheat. 204; Wickelhausen v. Willett, 10 Abb. Pr. 164. 6 Ex parte Nugent, 1 Amer. Law J. N. S. 107. 7 Ex parte Nugent, 1 Amer. Law J. N. S. 107. 8 Smith's Case, 1 Hall Law J. 459.
§ 10. Each House shall keep a Journal of its proceed. ings, and publish the same, and the yeas and nays of the members of either House, on any question, shall, at the desire of any three members present, be entered on the Journal.2
1 Fla. IV, 10; Ga. IV,4 iv; Ill. IV, 10; Ind. IV, 12; Ky. II, 22; W. Va. VI, 24; Colo. V, 12; La. 136; MA. III, 22; Minn. IV,5; Nev. IV, 14; N. J. IV, 4, 9; Ohio, II, 9; Tex. III, 12; Va. V, 10; W. Va. IV, 39. 2 Fla. IV, 10; Nev. IV, 14; Tex. III, 12; See Ala. IV, 13. See U.S. Const. I, 5 (3); Neb. III, 8; N. C. IV, 13; Pa. II, 12.