(dissenting.) — I concur with the Chief Justice in the following propositions: 1. That it is not indispensable to the organization and existence of the General Assembly that it shorild meet in the capitol, or be presided over in the_ Senate by the lieutenant-governor, and in the House of Representatives by the speaker, or be recognized by the governor. 2. That the members thereof derive their authority to act, as such, from their election by the people, and not otherwise. But I maintain that there are cases in which there is no General Assembly, notwithstanding a majority of each house may meet at a time and place appointed by law, and organize and assume to be the General Assembly, and that the present is such a case.
We know now who are entitled as members thereof to compose the General Assembly, because it has been ascertained by an undoubted General Assembly. It appears from the finding that the prior assemblage at the capitol lacked the indispensable requisite of a General Assembly, to wit, a majority of the members of each house. This' was the only defect of that assemblage, either in form or substance. But it is vital, and fatal to its claim to be the General Assembly. The assemblage at the United States Court-room, lacking every mere form in its organization, had, as has-been subsequently ascertained, a majority of the duly elected members of each house. In refusing to attend at the capitol, and in organizing at another place, its members staked their defence upon the truth of their claim to be a majority of each house; The result of a proper investigation vindicated this claim, and prevented the other body from constituting the General Assembly. Necessity is a *67law. But the validity of acts, dependent alone upon it, fails, if there was not the necessity. The court-house assemblage might have been held to have been the legislature, if nothing else had transpired within a reasonable time.
Appeal was made by each claimant to the President of the United States for recognition. One body was meditating the impeachment of the governor for refusing to recognize it, and both were proceeding to declare vacant the seats of members who belonged to the other. Nothing but force could have decided the dispute, if it had not been for the intervention of the President through the United States Attorney General. In obedience to his suggestion, the House of Representatives readily organized, and awaited the organization of the Senate, which was effected some time afterwards. The most important of the contested seats have been determined in this new organization, by the whole number of members undoubtedly , entitled to seats, and others are awaiting its action. Notwithstanding this inquest determined that the court-house assemblage had a majority of each house, I insist it was not the General Assembly.
A legislature, to be such, must, of course, have all the powers which it may exercise. Some of the powers require to be exercised by two thirds of each house. Can a bare majority, in favor of such exercise in a particular instance, expel the minority opposed, or refuse to let them meet with them ? May the majority, wherever congregated in the city of Montgomery, assume on the instant to be the legislature, and pass a law? These extreme cases suggest the right, both of the minority and of the people, to have their voice in the passage of the laws, or the performance of other duties by the legislature. The rule I deduce for determining the right of the majority to hold a session of the legislature, and the right of the minority to be present, without which the majority cannot legislate, is this : The minority must be absent, either necessarily or wilfully, without fault on the part of the majority, to enable the latter to hold such, session. If they are sick, or unable from any cause to come, or if they are refractory, and will not come, the majority may proceed without them. But if their absence proceeds from a reasonable belief that the body claiming their attendance has no right to do so, their objections ought to be removed through conference with them, or they should be placed in fault by such attempt, so that they may be brought in by compulsion. When a large number are absent, their attendance ought to be compelled ; because the people have a right to the influence they may exert, and also to have all doubts about the validity of the legislature removed.
*68In this instance, thé conference was held, and resulted in the proper organization of the assembly according to all the forms of law. No necessity exists now for regarding the court-house assemblage as the General Assembly; and without such necessity it ought not to be so regarded. The undoubted General Assembly has been in session more than a month, with the question of the validity of the claims of the former assemblages to be such constantly before it; and it has been unable to formally ratify or repudiate either, while the acts of both, with some exception, have been ignored or revised.
The Convention Parliament, which restored Charles II., met without the summons of the king; and the first thing done after the king’s return was to pass an act declaring it to be a good parliament, notwithstanding the defect of the king’s writs. Blackstone says the meeting was for the necessity of the thing, which supersedes all law; for if they had not §o met, it was morally impossible that the kingdom should have been settled in peace. So, at the time of the Revolution in 1688, the Lords and Commons, by their own authority, met in a convention, and disposed of the crown and kingdom. This assembling was upon a like principle of necessity as at the Restoration,— that is, upon a full conviction that King James II. had abdicated the government, and that the throne was thereby vacant, which supposition of the individual members was 'confirmed by their concurrent resolution when they actually came together. The Convention was declared to be really the two Houses of Parliament, notwithstanding the want of writs, or other defects of form, by statute. 1 Wm, & M. St. 1 ch. 1; 1 Blackstone’s Com. m.. p. 151, 152.
In the People v. Hatch (33 Ill. 9), a portion of the members of the legislature came together, and assumed to act as the legislature, after it had been adjourned by the governor, under a misapprehension of a disagreement between. the two houses about adjournment. The members had been disconcerted by the prorogation, and for twelve days had taken no action. This was considered an acquiescence in the action of the governor, and the subsequent assembling was declared by the court not to have been a meeting of the legislature. In that case, every ingredient of validity seems to have existed : a meeting at a time and place appointed by law; no dispute as to membership ; a session begun, and not actually terminated ; an admitted mistake of the governor in proroguing the body ; disconcertion of the-members, rather than acquiescence.
How easy will it be, when the parties into which the members. may be divided are nearly equal, for a sufficient number of seats to be contested, to raise genuine doubts about who are entitled to them •? The State is liable to be convulsed on the *69most frivolous occasions and long afterwards private citizens may be greatly injured, without fault of theirs, by judicial determination of the validity of laws, which they were unable in any way correctly to determine for themselves. Such doubt and difficulty now exist in this State; and to the beneficent interposition of the federal authority alone are we indebted for the privilege of deciding this case before • a civil tribunal, rather than having it submitted to the crude arbitrament of intestine strife.