also dissenting:
Today’s holding by this court does violence to established parlimentary rules relating to methods of determining the presence of a quorum in legislative bodies. The court’s opinion considers the necessary inference to be drawn from Auditor General v. Board of Supervisors (1891), 89 Mich. 552, 51 N.W. 483, is that a recess destroys the presumption of the continued presence of a quorum. This inference is not supported by section 504(1) of Mason’s Manual of Legislative Procedure For Legislative and Other Governmental Bodies (1979) (hereafter Mason’s Manual), which is cited in the opinion. That section states:
“When a body has convened with a quorum present, it can continue to transact business as long as a quorum is present and it is presumed that the quorum continues to be present until the question of no quorum is raised or the lack of a quorum is disclosed by a vote.”
Of necessity, the presumption of a quorum must continue after a recess. A recess is a short intermission within a meeting which does not end the meeting or destroy its continuity, after which proceedings are resumed at the point where they were interrupted. (H. Robert, Robert’s Rules of Order sec. 8, at 71, sec. 20, at 196-97 (S. Robert ed. 1981) (hereafter Robert’s Rules of Order).) At the conclusion of a recess and the resumption of business, there are no “opening proceedings.” Business is immediately resumed where it left off, just as if there had been no recess. (Robert’s Rules of Order sec. 8, at 73.) This is in contrast to an adjournment which terminates a meeting and after which a meeting begins with the procedure of opening a new meeting. (Mason’s Manual sec. 214, at 184.) Thus, after a recess there is no occasion to again call the roll to determine the presence of a quorum. Following the recess in this case, the fact that only 29 voters voted on the appeal of the Governor’s ruling concerning the number of votes necessary to elect the President of the Senate did not establish that a quorum was not present. The number of members voting does not establish the absence of a quorum. A quorum is determined by the number of members present, not the number voting. (Mason’s Manual sec. 503(1), at 347.) Section 504(6) of Mason’s Manual provides that when the question of no quorum is raised, the presiding officer may count the members, or he may assume the responsibility of declaring a quorum present or not present. Section 504(7) of Mason’s Manual provides that the question of no quorum is decided by the presiding officer as any other point of order, and is subject to appeal in the same manner.
In this case, after the recess and after two requests by Senator Rock had been denied by the Chair, Senator Netsch suggested the absence of a quorum. The Governor, as the presiding officer, assumed the responsibility, as he had the authority to do, of declaring a quorum present without a roll call by stating: “The Chair observes a quorum is present.” (Transcript of 82nd General Assembly Regular Session, at 18 (Jan. 15, 1981).) This ruling was subject to an appeal as any other ruling by the Chair on a point of order. No appeal was taken from this ruling. The Governor, nonetheless, stated that if Senator Netsch desired, he could direct that a roll call be had on the question of a quorum and he then directed that the roll be called. While the roll was being called, Senator Netsch apparently left the floor, returned and left again. In any event, the Governor, as the presiding officer, stopped the roll call and ruled it was out of order because the mover on the question of a quorum had left the floor. Again, no appeal was taken from that ruling. Thus, when the call of the roll on the appeal from the Chair’s ruling on the number of votes necessary to elect the President of the Senate was commenced, there had been a determination by the presiding officer, on the suggestion of no quorum, that a quorum was present, and that ruling was not appealed. Therefore, under accepted rules of parliamentary procedure, there had been a determination following the recess that a quorum was present, and there is nothing in the record to contradict this determination.
The plurality opinion states that a presiding officer’s determination that a quorum is present is presumed correct only until challenged or until a vote discloses the absence of a quorum. In this case there was no appeal from the Governor’s ruling that a quorum was present. Therefore, it appears that the opinion holds that since only 29 votes were cast on the question of the number of votes necessary to elect the President of the Senate, the presumption of the continuance of a quorum following the Governor’s determination of a quorum was destroyed. I do not agree. Regardless of how the determination of a quorum is made following the raising of the question of no quorum, that question is decided by the presiding officer, whether it is by a call of the roll, or by a declaration by the presiding officer without a roll call. (Mason’s Manual secs. 504(6), 504(7), at 850.) A quorum is determined by the number of members present, not the number voting. Those present and not voting cannot defeat a proposition by not participating, thereby hoping to establish that a quorum was not present. Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137; Mason’s Manual sec. 503(1), at 347.
Although I believe that after the recess there was a proper determination of the presence of a quorum and that the continued presence of a quorum must be presumed, we need not rely solely on that presumption. The transcript of the record clearly shows that the Governor’s determination was correct. After the recess 29 members voted on the appeal of the Governor’s ruling concerning the number of votes needed to elect the President of the Senate. In addition, after the recess, the transcript discloses that Senator Rock and Senator Netsch were both present on the floor of the Senate, and both members, during this presence, addressed the Chair. Senator Rock first requested debate on a motion to limit debate and then asked leave to amend the motion. Although the transcript discloses that Senator Netsch left the floor, there is no showing that Senator Rock did so. Nothing has been presented to this court that would show that Senator Rock was not present during the vote on the appeal from the Governor’s ruling concerning the number of votes required to elect the President of the Senate or during the vote for the President of the Senate itself. Section 505(8), of Mason’s Manual states that when the journal shows a quorum present it will be presumed that a quorum continues to be present unless the presumption is contradicted by the journal itself. There is nothing in this transcript that would contradict this presumption. We must therefore conlcude that a quorum of 30 Senators was present when the Senate voted on the appeal from the Governor’s ruling. We must also conclude that at least 30 Senators were present at the election of the President to the Senate. The fact that less than a quorum voted on the appeal from the Governor’s ruling and for the election of the President of the Senate did not destroy the presence of a quorum.
In addition to the presumed presence of Senator Rock, during the vote for President of the Senate the Governor interrupted the roll call and stated: “The Chair notes the presence of Senator Savickas.” (Transcript of 82nd General Assembly Regular Session, at 20 (Jan. 15, 1981).) Following the roll call, the Governor stated:
“The Chair will again note that *** Senator Frank Savickas was present on the Floor of the Senate during the roll call.” (Transcript of 82nd General Assembly Regular Session, at 21-22 (Jan. 15, 1981).)
The plurality opinion finds that the Governor had no authority to count nonvoting members in order to make up a quorum. The plurality finds support for its conclusion in the language of the North Carolina Supreme Court in State ex rel. Stanford v. Ellington (1895), 117 N.C. 158, 23 S.E. 250, which construed the holding of the United States Supreme Court in United States v. Ballin (1892), 144 U.S. 1, 36 L. Ed. 321, 12 S. Ct. 507. Ballin involved the question of the methods that could be used in determining the presence of a quorum. The court noted that the Constitution had prescribed no method for making such determination but concluded that the House of Representatives of Congress could adopt a rule providing the method of determining the presence of a quorum and found that Rule 15, which authorizes the Speaker to suggest the names of members present and not voting to be counted in determining the count, was permissible as not being contrary to any constitutional provision or any fundamental principle. I cannot find in Ballin the conclusion of this court and the North Carolina Supreme Court in Ellington that in the absence of such a rule the presiding officer has no authority to determine the presence of a quorum in this manner. If it ever was the accepted practice to limit the presiding officer in this regard, it is a practice apparently no longer followed in legislative bodies. Mason’s Manual states:
“In Congress, on the demand of any member, or at the suggestion of the presiding officer, the names of members sufficient to make a quorum, who are in the house but who did not vote, may be noted by the clerk, recorded in the journal, and be reported to the presiding officer with the names of the members voting, to be counted and announced in determining the presence of a quorum. This would seem to be a proper practice in any legislative body in case the presence of a quorum is disputed.” (Emphasis added.) Mason’s Manual sec. 503(5), at 348.
Although Ellington is cited in support of several other sections dealing with other questions in Mason’s Manual (see sec. 500(2), at 341-42, sec. 504(2), at 349, sec. 510(1), at 355, sec. 532(4), at 385, sec. 532(5), at 385, sec. 535(9), at 390), it is not cited for the construction it has placed on the holding of the United States Supreme Court in Ballin referred to above. That construction is contrary to the appropriate procedure suggested in section 503(5), at page 348, of Mason’s Manual quoted above.
In concluding its discussion on the quorum question, the plurality opinion states:
“Because the transcript fails to reflect the presence of a quorum, we hold that the purported election of respondent Shapiro did not constitute compliance with the provision of article IV, section 6(b), that the Senate while convened, ‘elect from its membership a President of the Senate as presiding officer.’ ” (Emphasis added.) (85 Ill. 2d at 427.)
The italicized language is not a correct statement. On the contrary, following the recess the transcript shows that 29 Senators, plus Senator Rock, were present, and nothing in the transcript or anywhere else shows that a lesser number than that was present. I noted above that Mason’s Manual, section 505(8), at page 352, provides that when the journal shows a quorum present, it is presumed that a quorum continues to be present unless the presumption is contradicted by the journal itself. Once the presence of a quorum had been determined, “[t] he fact that less than a quorum vote does not raise a presumption that no quorum is present, but a quorum is presumed to be present until the absence of a quorum is determined.” Mason’s Manual sec. 503(2), at 347.
My colleague Mr. Justice Simon agrees that the Constitution does not require 30 votes, a majority of those elected to the Senate, to elect its President. He finds, however, that the election of Senator Shapiro is invalid because the Senate never adopted a rule which provides that a majority of those members present and voting is sufficient to elect the President. It is true, as my colleague observes, that the Constitution is silent on this subject. Also, as my colleague observes, when the Senate was convened by the Governor there were no rules of that body in effect that provided the vote required to transact business. However, after the Senate was convened, business was transacted according to some set of accepted rules of parliamentary procedure. Candidates for President of the Senate were nominated, and their nominations were seconded. A motion was made to adjourn the Senate until February 10. The Governor recognized the motion as being in order, and the motion was seconded. Senator Rock moved to place the motion on the table. The Governor recognized this motion as being in order and not debatable and directed that the roll be called on the motion to table. On the roll call the motion to table carried. Senator Newhouse then moved adjournment until January 22. The Governor stated that the Parliamentarian had informed him that, there being no intervening business since the previous motion to adjourn, the motion was out of order. A motion was then made to close the nominations, which carried by a voice vote. Senator Newhouse then again addressed the Chair and stated that since there had been intervening business, he renewed his motion to adjourn. The motion was seconded and defeated on a voice vote. The Governor then requested that the Secretary call the roll. Senator Carroll, addressing the Chair, suggested that according to Robert’s Rules of Order, “under which we are operating,” they could have a vote by a division of the House by standing, “which is allowed under Robert’s” instead of having a roll call. Senator New-house withdrew his motion for a roll call. The Governor at that time announced his ruling that a majority of those present and voting was required to elect the President. Senator Netsch questioned the ruling. Following an explanation of his ruling, the Governor stated he would treat the inquiry concerning the ruling as an appeal and asked if there was a second. Senator Rock seconded the appeal and moved for a recess. After a brief discussion of the question, the Governor again referred to parliamentary procedure and stated the appeal was a debatable question and that the vote of the majority of those present and voting was required to overrule the ruling of the Chair. Following some discussion the Governor stated, “Senator Rock, the Chair is advised by the Parliamentarian *** that you are entitled to your request even in the middle of the appeal.” (Transcript of 82nd General Assembly Regular Session, at 16 (Jan. 15, 1981).) The Governor then recessed the Senate.
Thus, although the Senate had no adopted rules governing its procedure, it plainly was operating under rules of parliamentary procedure, and it appears from the transcript that Robert’s Rules of Order was being followed. It is not correct, as my colleague states, that the custom cannot supply “a body of rules for the Senate, even temporarily.” If that were true, in what manner will the Senate proceed in adopting the rules which my colleague finds necessary?
Our constitution provides that each house shall determine the rules of its proceedings and choose its officers. (Ill. Const. 1970, art. IV, sec. 6(d).) Therefore, the rules which the Senate follows and the method it elects to adopt in choosing its officers are purely legislative matters. The Constitution neither specifies nor prohibits any particular method of choosing the officers. It does not even provide that the officer shall be elected. Mason’s Manual section 37(1), at page 61, provides: “All matters of procedure not governed by constitutional provisions, adopted rules, *** or an adopted manual, are governed by the rules of the general parliamentary law.” Chapter 8 of Mason’s Manual, page 66, sets out the principles of parliamentary law. Section 43(8), at page 68, provides that to make a decision the constitution or statute may require more than an affirmative vote of a majority of the legal votes cast, but that parliamentary law requires only a majority vote. This section refers to section 510, at page 355, which provides that a majority of the legal votes cast, a quorum being present, is sufficient to carry the proposition unless a larger vote is required by constitution, charter or controlling provisions of the law. Robert’s Rules of Order section 1, at page 3, likewise provides that a majority vote of those present and voting on a particular matter in a meeting at which a quorum is present is sufficient, provided there is no requirement that a greater number is necessary. Thus, whether the Senate was operating under Robert’s Rules of Order, as some of the members indicated in the transcript, or whether it was operating under the general principles of parliamentary law by virtue of its failure to adopt rules, it was not operating in a vacuum. There were established principles of procedure which applied to the Senate proceedings which authorized the election of its officers by a vote of a majority of those present and voting.
My greatest concern is that this court has taken it upon itself to become involved in this question. The Constitution vests solely in each house of the General Assembly the authority to determine the rules of its proceedings and to choose its officers. (Ill. Const. 1970, art. IV, sec. 6(d).) As noted above, the Constitution does not even require that the officers be elected. Even if the Senate would have adopted specific rules governing the procedure for selection or election of its President, and if it would have failed to follow the rules adopted, this court would have no authority to intervene. This would also be true if the Senate, after having failed to adopt rules, and being governed by general principles of parliamentary law, had failed to comply with those procedures. Mason’s Manual provides:
“Under a constitutional provision declaring that each house of the legislature shall determine the rules of its own proceedings, the fact that a house acted in violation of its own rules or in violation of parliamentary law in a matter clearly within its power does not make its action subject to review by the courts.” (Emphasis added.) Mason’s Manual sec. 24(4), at 53.
The same section of the Constitution that provides that each house shall choose its officers also authorizes it to judge the qualifications of its members. In Reif v. Barrett (1933), 355 Ill. 104, 127, overruled on other grounds in Thorpe v. Mahin (1969), 43 Ill. 2d 36, 45, this court held that under a similar provision in our 1870 Constitution the final decision of the House of Representatives on that subject is conclusive and the court has no right to review its decision. In Humphrey v. City of Youngstown (Ohio App. 1955), 143 N.E.2d 321, the court held that a legislative act will not be declared invalid for noncompliance with the rules of that body. In State v. Savings Bank (1906), 79 Conn. 141, 152, 64 A. 5, 9, the court stated that when the constitution gave the legislature the power to determine its own rules, if the legislature, acting in a matter clearly within its power, abused the power, the court should not intervene. “ [I] t would be an unwarranted invasion of the independence of the legislative department for the court to set aside such an action as void ***.” In Goodwin v. State Board of Administration (1925), 212 Ala. 453, 455, 102 So. 718, 719, the court held that the fact that the House overlooked or violated a rule not required by the Constitution in the passage of an act did not impair its validity. (See also Schweizer v. Territory (1897), 50 Okla. 1297, 47 P. 1094; McDonald v. State (1891), 80 Wis. 407, 50 N.W. 185; Keenan v. Price (1948), 68 Idaho 423, 195 P.2d 662.) In State v. Cumberland Club (1916), 136 Tenn. 84, 91-92, 188 S.W. 583, 585, the court stated, “The Senate has the right, under the constitution, to make its own rules ***, and it must be the judge of those rules. All the court can do is to ascertain whether the constitution has been complied with.” In State v. Lewis the court, in considering a procedure followed by the legislature, stated:
“The general statement of the rule is that the powers of the General Assembly are plenary as to all matters of legislation unless prohibited by some provision of the constitution.” State ex rel Coleman v. Lewis (1936), 181 S.C. 10, 24, 186 S.E. 625, 631.
Under this well-established authority, the choosing of the officers of the Senate being vested in that body by the Constitution, the power of the Senate to choose its officers is plenary, and the doctrine of separation of powers prohibits this court from doing anything other than ascertaining whether the provisions of the Constitution have been complied with. The only constitutional requirement applicable here is that a quorum of the majority of the members elected to the Senate must be present before business can be transacted. (Ill. Const. 1970, art. IV, sec. 6(a).) I have considered that question above. Beyond that, this court has no authority to inquire into the proceedings of the Senate in selecting its President.
UNDERWOOD and MORAN, JJ., join in this dissent.