act, the duties imposed upon him relative to the preparation of the roll or the organization of the House devolve upon the sergeant at arms, and in case of vacancy in both of said offices, or the absence or inability of both to act, the said duties are to be performed by the door-keeper of the House. (For this statute in full, see appendix to this volume.) And by the laws of most of the States, similar statutory regulations are provided. Thus, in many of the States the Lieutenant Governor is ex officio president of the State Senate, and presides over the organization of the new Senate which commences with the expiration of his term of office. In most of the States, (and perhaps in all of them,) the lower House of the General Assembly is required to be called to order by the clerk of the preceding House, and to be organized by proceedings similar to those above described, in the organization of the lower House of Congress.

§ 512. Of course no business other than that which pertains to the organization of the body, can be properly transacted until after the members have been sworn according to law. In the absence of any law designating the person by whom the oath of office shall be administered, it is usual to require the services of a judge of one of the higher Courts, and the chief justice of the Supreme Court of the State is apt to be called upon to discharge this duty, though it is presumed that in the absence of any established rule upon the subject, the oath may be administered by any person having authority to administer oaths generally. Immediately upon the election of a permanent presiding officer, and upon

his being sworn, it is proper to proceed to call the roll of members, to the end, that each member as his name is called, may advance and take the oath of office. In the House of Representatives of the United States, the oath of office is administered to the speaker by a member of the House, (usually by that one who has been longest a member,) and the other members are sworn in by the speaker.

§ 513. Notwithstanding the fact that these rules and regulations governing the organization of legislative bodies, are well settled, and generally understood, it will sometimes occur that an organization may not be effected without great delay and difficulty, and it has sometimes happened that two bodies have organized and elected officers, being nearly equal in point of numbers, and each claiming to be the lawful organization. Nor has the lower House of Congress always been able to organize without delay or difficulty. In the twenty-sixth Congress, the clerk of the House undertook to omit from the roll both the claimants for each of several contested seats, and by this action the organization was delayed for some ten days. In this he was clearly wrong, for it was his duty to place upon the roll the names of the persons holding proper certificates of election, without regard to the question whether the seats of any such persons were to be contested. In the thirty-first, thirty-fourth, and thirty-sixth Congresses, the organization of the House was delayed by reason of the failure of a majority of the members to vote for any candidate for speaker, thus preventing an election. Delay from this cause may frequently occur, and cannot be prevented, so long as

the votes of a majority of members are required to elect a speaker. It was found necessary, in the 31st and 34th Congresses, to adopt the plurality rule in the election of a speaker, for the reason that the majority seemed altogether unable to agree upon any person for that office. This was effected by a resolution of the House, authorizing an election of speaker by a plurality, and afterwards by the pas sage of a confirmatory resolution, declaring him. "duly elected." (Barclay's Dig., 126.)

§ 514. In case of a division of a legislative body, that ought to be a unit, it becomes important to determine which is the legal, and which the illegal assembly. In such a case the true test is this; that is the legal organization which has "maintained the regular forms of organization, according to the laws and usages of the body, or in the absence of these, according to the laws, customs and usages of similar bodies in like cases, or in analogy to them." Kerr vs. Trego, supra.) This rule affords the best possible test of legitimate organization.

In all cases where part of a legislative body remains, and where the body is to be completed by the reception of new members, the old members who hold over remain as an organized nucleus, which receives the new members, when the whole body proceeds to the exercise of all its functions. The new members, though they be in the majority, must meet with the old at the time and place fixed by law, and proceed regularly with the organization of the body, and they cannot assemble elsewhere and organize the body. They must join themselves to the existing body, for the members holding over,

though they may be in the minority, and not sufficiently numerous to constitute a quorum, are yet the body, for the purposes of receiving the new members and acting as the organs of re-organizing the body. And this principle applies, and often becomes very important, in those cases where but a single officer of the preceding body holds over, and is authorized to take charge of the organization of the new body. Thus, as we have seen, the Clerk of the previous House of Representatives of the United States, is authorized, by law, to preside at the organization of the new House, and he is, therefore, (unless he be absent, or incapacitated, or the office be vacant, in which cases the law provides a substitute,) the only person who can take charge of the organization. Even if a quorum of the House should refuse to recognize him, and should choose another to preside over the organization, that action would be null and void.

It is apparent that this rule will, if adhered to, ensure a legal organization, and prevent a schism of the body, in every case, though the process of organization may, in some cases, be tardy. It may be urged that this rule puts too much power in the hands of the person or persons who are empowered to prepare a roll of members, and take charge of the organization, but the answer is, that whatever of inconvenience or hardships may result from this rule, cannot be compared to the advantages of securing a regular and legal organization, and avoiding the possibility of division, disorganization, and conflict. Besides, the majority can always, by legal and orderly means, correct errors and redress wrongs, if any are attempted upon their rights.

§ 515. In the event that a municipal or legislative body which ought to be a unit, divides into two separate bodies, each claiming to be the legitimate and legal organization, what is the remedy by which the authority of the lawful body may be maintained, and the unlawful body be restrained from assuming and attempting to exercise functions which do not belong to it? In considering this question, we must keep in view the fact that there are two classes of legislative bodies, to-wit: those which are supreme, and those which are subordinate. To the former class belong the Congress of the United States, and the legislatures of the several States. These represent the supreme legislative power of the nation and of the State. To the latter class belong the common councils of cities and towns, and other similar municipal legislative bodies. These are under law, and subordinate to the judgments and orders of the courts of justice.

For a failure to organize a supreme legislature, there is no remedy which courts of justice can administer, and this fact makes it all the more important that the rules which have been established to prevent such failure, and avoid the anarchy, confusion, and possible bloodshed, which might ensue, should be adhered to. As to subordinate legislatures, such as are not supreme, but subject to the jurisdiction of the judiciary, it has been held that an illegal body may be restrained by injunction, from acting. In the case of Kerr vs. Trego, supra, the Supreme Court of Pennsylvania discussed the question of the remedy for these evils, as follows:

"Have the Courts authority to redress this wrong?