Case of Fellows

1 Armstrong. Election Cases 37

• Court: New York State Assembly
• Decided: January 31, 1816
• Status: Published

Opinion

Report of Committee. — Henry Fellows awarded the Seat.

In Assembly, February 1th, 1816.

Mr. H. Lee, from the' committee of privileges and elections, to whom was referred the petition of Henry Fellows, with the documents accompanying the same, reported:

That.the committee have investigated the claim of Mr. Fellows to be admitted to his seat as a member of this House, in the place of Peter Allen who wan returned by the clerk of the county of Ontario as duly elected ; that Mr. Allen and Mr. Fellows, according to notice given to that effect, appeared .before the committee to enforce their respective claims; that from the documents referred to the committee the following facts are fully aud clearly proven, and were not contradicted or denied by Mr. Allen.

That at the last anniversary election of member of Assembly in the town of Perrington, in ,£he county .of Ontario, forty-nine votes were given for Henry Fellows, by his name printed at full length ; that the votes were duly canvassed by the inspectors of election, and duplicate certificates made according to the act, .one of which was filed in the clerk’s office of that town, in which the name of Henry Fellows was written at full length; but in the certificate made by the said inspectors and filed in the clerk’s office of the county of Ontario, tl^e Christian name of the said Henry Fellows was written with the abbreviation of Hen. Fellows; that in calculating and ascertaining the number of votes given for the said Henry Fellows the clerk of the said county of Ontario refused to allow him those given in the said town of Perrington for Henry Fellows aud returned to him by the name of Hen. Fellows, and determined that Peter Allen was elected and gave him his certificate accordingly.

The committee further report, that the whole number of votes given at the said election in and for the county of Ontario for Peter Allen was three thousand six hundred and ninety-five, and for Henry Fellows, including those given for him by that name in the town of Perrington, three thousand seven hundred and twenty-five. The committee are, therefore, unanimously of opinion that the seat of Peter Allen, Esquire, should be vacated, and the petitioner be admitted as a member of this House.

Resolved, That the House do agree with the committee in their said report.

Thereupon IVIr. H. Lee made a motion that the Plouse should agree to a resolution which was read in the words following, to wit:

• Resolved, That Henry Eellows ought to be permitted to take his seat as a member of the Plouse of Assembly, duly elected in the comity of Ontario, in the room of Peter Allen the sitting member, and that the seat of the said Peter Allen, the sitting member, be vacated accordingly.

Mr. Speaker put the question whether the Plouse would agree thereto, and it was determined in the affirmative. , ' ■

The ayes and noes were called for by Mr. Yan Rensselaer and seeonded by Mr. Huer, and were as follows, to wit:

For affirmative, 115.

For negative, 1.

Mr. Fellows appeared in the Assembly Chamber, was qualified, and took his seat.

Assembly Journal, 1816, pages 51, 52, 53.

See as to question whether Peter Allen had a right to vote, &c., pages 83, 84 and 85, and 88 to 99.

Resolutions Adopted Relative to right of Peter Allen to vote, AND OTHER QUESTIONS OF REGULARITY, AND QUESTIONS OF ORDER, &C.

In Assembly, February 15th, 1816.

In farther considering the said resolutions, with recitals, the same having been amended, were read in the words following, tS wit:

Whereas, On the thirty-first day of January last, a petition was presented to this House from Henry Fellows, of the county of Ontario, claiming a right to a seat in this House as a member elected in the county of Ontario, in the place of Peter Allen to whom, as the petition alledged, a certificate had been improperly granted by tlie„clerk of that county; and,

Whereas, It was thereupon moved that the reading of the said petition, and the docoments accompanying the same, should be postponed until the next day; and,

Whereas, The said resolution was objected to as. not. being in order; and,

Whereas, The Speaker decided that the said motion was in order; and,

Whereas, The said decision of the Speaker was appealed from ; and,

Whereas, A motion was made that the said Peter Allen should be omitted in calling of the division on the said appeal, upon the ground of his not being entitled to vote on a question collaterally affecting his right to a seat in this_ House; and, .

Whereas, The Speaker decided that the last mentioned motion was out of order, and that the said Peter Allen had a right to vote-thereon ; and,

Whereas, The last mentioned decision of the Speaker was appealed from, on the ground that the said Peter Allen had not a right to vote on the question, whether he had a right to vote on & question collaterally affecting his right to a seat in this House; and

Whereas, A motion was thereupon made that the name of the said Peter Allen should be passed over, in calling of the division on the said appeal; and,

Whereas, The Speaker decided that the last mentioned motion was out of order, and that the said Peter Allen might vote on the last aforesaid appeal as a question of order; and,

Whereas, On the second day of February instant, the said petition of Henry Fellows, and the documents accompanying the same, was read, from which documents it appeared that the said Peter Allen had no right to a seat in this House; and,

Whereas, The said Peter Allen did not deny the authenticity of the said documents, nor the truth of the facts contained therein; and,

Whereas, On the third day0 of February instant, a motion was made that the House should agree to a resolution, in the words following, to wit:

“ Resolved, That this House will immediately proceed to nominate and appoint a Council of Appointment;” and,

Whereas, A motion was thereupon made that the' House should agree to strike out the word immediately, in the said resolutions, and to add to the same the words following, to wit: “On Wednesday next, and that in the meantime the House will proceed to consider and determine the right of Peter Allen to his seat in this House;” and,

Whereas, A motion was then made that the House should agree to exclude the said Peter Allen from voting on the said proposed amendment, and that he retire from the House; and,

Whereas, The Speaker decided that the last mentioned motion was out of order; and, -

Whereas, The last recited decision of the Speaker was appealed from; and,

Whereas, On the fifth day of February instant, the House proceeded to the consideration of the last mentioned appeal, and the ajres and noes being called for, a motion was made that the House should agree to order the said Peter Allen to withdraw during the taking of the division of the House on the said appeal; and,

Whereas, The Speaker decided that the last mentioned motion was out of order; and,

Whereas, The question being put, whether the House would agree to strike out the word immediately, in the said resolution, and to add to the same the words following, to wit: “ On Wednesday next, and that in the meantime the House will proceed to consider and determine the right of Peter Allen to his seat in this House,” and the yeas and nays being called for, and the said Peter Allen voting in the negative, the House was equally divided, whereupon the Speaker gave the casting vote in the negative; and,

Whereas, A motion was then made that the House should agree to expunge from the said division, the vote of the said Peter Allen ; and,

Whereas, The question being put, whether the House would agree to the said motion, and the yeas and nays being called for, and the said Peter Allen voting in the negative, the House was equally divided, whereupon the Speaker gave the casting vote in the negative ; and, ' »

Whereas, A motion was thereupon made that the House should agree to insert in the said proposed resolution, before the word immediately, the words “ on Thursday next proceed to inquire into the right of Peter Allen to a seat in this House, and thereafter;” and,

Whereas, The Speaker decided that the said proposed amendment was out of order; fvnd,

Whereas, The last mentioned decision was appealed from; and

Whereas, The yeas and nays upon the said appeal being called for, and the said Peter Allen voting in support of the said decision, the House -was equally divided, whereupon the Speaker decided the said appeal to be lost; and,

Whereas, The question being then put, whether the House would agree to the said resolution, immediately to proceed to n^ninate and appoint a council of appointment, and the yeas and nays'heing called for, and the said Peter Allen voting in the affirmative, the House was equally divided, whereupon the Speaker gave the casting vote in the affirmative; and,

Whereas, The House thereupon proceeded to nominate a council of appointment; and,

Whereas, It was thereupon moved, that the House should agree to a resolution in the words following, to wit:

“ JSesolved, That Darius Orosby, one of the Senators from the southern district; "William Poss, one of the Senators from the middle district; Parley Keys, one of the Senators from the eastern district; and Archibald S. Clark, one of the -Senators from the western district, be and they are hereby nominated and appointed, according to the form and effect of the articles of the Constitution in such case made and provided, a council for the appointment of all officers within this State, other than those who by the Constitution are directed to be otherwise chosen or appointed.” and,

Whereas, The qnestion being put, whether the House would agree to the said resolution, and the yeas and nays being called for, and the said Peter Allen voting in thé affirmative, the House was equally divided, whereupon the Speaker gave the casting vote in the affirmative; and,

Whereas, On the sixth day of February instant, a motion was made that the House should agree to a resolution in the words following, to wit:

“ liesolvecl, That this House will proceed to investigate the merits of the claim of Henry Fellows to a seat as one of the members of Assembly, elected in and for the county of Ontario, and that Peter Allen, the sitting member, appear and be heard in his defense.” and,

Whereas, It was thereupon moved that the said resolution be laid upon the table; and,

Whereas, The question being put, whether the House would agree thereto, and the ayes and noes being called for, a motion was made that the House should exclude the said Peter Allen from a vote on the last mentioned question; and,

Whereas, The Speaker decided that said motion was out of order; and,

Whereas, The question being put on the said motion to lay upon the table the said proposed resolution, and the ayes and noes being called for^nd the said Peter Allen voting in the affirmative, the House was equally divided, whereupon the Speaker gave the casting-vote in the affirmative; and,

Whereas, On the last day aforesaid, the said petition of Fellows, and the documents accompanying the same, were referred to the committee of privileges and elections; and,' ,

Whereas, ”On the ensuing day the said committee reported, in substance, that the said Peter Allen had appeared before them, and had not denied the authenticity of the said documents, nor the truth of the facts therein set forth; and that it was the unanimous opinion of the said committee that the seat of the said Peter Allen ought to be vacated; and,

Whereas, It was thereupon moved, that the House should agree to a resolution that the seat of the said Peter Allen ought tobe vacated ; and,

Whereas, The question being put, whether the Houes would agree to the said resolution, and the yeas and nays being called for, it appeared that every member present, except one, voted in the affirmative ; and,

Whereas, It is contrary to the practice of this and all other well regulated legislative bodies, and to reason, justice and law, to permit any man to be a judge in his own cause, or to allow him by his own vote to defeat or postpone an inquiry into his right, to sit in this House, or decide upon his own right to vote therein ; and,

Whereas, Py divers of the before recited decisions, the said Peter Allen was permitted to vote for the postponement of an inquiry into his own right to sit in this House, and did, in fact, by his own vote defeat such inquiry until after he had voted for certain Senators to constitute a council of 'apportionment, which Senators would not have been elected if the right of the said Peter Allen to sit in this House had been previously investigated and decided; and,

• Whereas, By divers others of the said recited decisions, it was decided that the said Peter Allen had a right to vote on the question whether he had a right to rote, and did in fact, by his own vote, decide such question in his own favor; and to the end that the said decisions may never hereafter be considered as,precedents, and that they may be marked with the disapprobation and displeasure of this House; *

Resolved, That all the before recited decisions, whereby it was decided that the said Peter Allen had a right to vote upon questions which tended, directly or indirectly, to decide whether an inquiry into his right to sit in this House should or should not be delayed; or whereby it was decided that the said Peter Allen had a right to vote tipon the question whether he had or had not a right to vote; are contrary to the practice of all well regulated legislative bodies, and are unreasonable, unjust and illegal, and are expressly disapproved and condemned by this House. And,

Whereas, It appears from the proceedings before recited, that it was decided to proceed to the election of a Council of Appointment before any inquiry was made into the right of the said Peter Allen to a seat in this House, although there was then before the House official documents, undenied by the said Peter Allen, and proving that he had no right to sit therein, upon which said documents the House, after the election of the said Council, resolved that his seat should be vacated;

Resolved,, That the decision to proceed, under such circumstances, to the election of a Council of Appointment, previous to any inquiry into the right of the said Peter Allen to vote thereat, was improper and unjust, and irreconcilable to the spirit of the Constitution of this State.

Mr. Speaker put the question whether the House would agree thereto, and it was carried in the affirmative.

The ayes and noes being called for by Mr. Beach, seconded by Mr. Burt, were as follows, to wit:

For the affirmative, 62.

For the negative, 57.

Assembly Journal, 1816, pages 99, 100, 101, 102, 103.