By the Court,
Kingman, J.
The facts of the case were agreed upon leaving for the Court to decide the single question, whether the session held by the Senate when it tried' and pronounced judgment in the case, was a legal and constitutional one.
This is denied on two grounds.
1st. There is no power in the Senate to set for the purpose of trying impeaclúnents when the House is not in session.
2d. If such power exists, the adjournment of the Senate to the 1st Monday in June was without consent of the House, and void; and if valid, was annulled by the subsequent concurrent resolution adjourning the Legislature, sme die.
By constitutional provision all impeachment cases are to be tried by the Senate; but as to when the Senate shall set for that purpose or how the trial shall be conducted the constitution is silent except in declaring that the Senators when sitting for that purpose shall be sworn; that the concurrence of two-thirds of the Senators elected is necessary to a conviction, and a limitation as to the extent of the punishment.
In the absence of express provisions..it is presumed that the common law “ will regulate, interpret, and control the powers and duties of the Court of Impeachment,” but this rule, applicable only to the trial and proceedings, affords no guide in determining the question as to the organization of the Court, for in this State the tribunal that tries, as well as the body that prefers the accusation, are entirely unknown to the common law, and if there is such a general resemblance of our legislative assembly to the [27]*27Parliament of Great Britain, as to be easily noticed, the points of dissimilarity are still more apparent and striking. And this, not only in the organization and general powers of the two bodies, but even in this matter of impeachment.
By our law the House of Representatives alone can prefer charges of impeachment; by the common law of Parliament, not only the Commons, but a Peer or the Attorney General at the suit of the King may prefer articles of impeachment. [Com. Dig. V. 238.)
In prosecutions by the Commons upon an impeachment, it belongs to the Commons to demand judgment, (Com. Dig. V. 211,) and the House of Commons have a right to be present whether they appoint managers or not, that every member may satisfy his conscience whether- he will give his vote to demand judgment. (Strafford's Case, 2 Commons Jowmal, 105-108.)
This right of the Commons to be present in cases where the impeachment was presented by them grows out of the assumed right of the Commons to arrest the prosecution by refusing to demand judgment, even after the person impeached has been found guilty. Such power has never been exercised or claimed in this country by the House exhibiting the accusation, and would be utterly subversive of the independent jurisdiction of the Senate as a Court of Impeachment, by subjecting the judgments of the Senate to the review of the House before they would be of any force or effect.
The reason of the usage or right of attendance upon the trial by the Commons having failed, the rule itself ceases, as vre have adopted no more of the common law in this State than is adapted to our situation and applicable to our institutions. The laws of this State, however, by express provision, have empowered the Senate, when sitting as a Court for the trial of impeachments, to hold sessions after the adjournment of the Legislature, and whatever may [28]*28have been the rule of common law, it was perfectly competent for this Legislature to prescribe a different rule unless prohibited by the constitution, and we look in vain for any such provision, either express or implied. Nor is there in that instrument any inhibition of the session of one branch of the Legislature when the other is not in session. There is a fixed time when both Houses shall meet, a limitation of the power of one House to adjourn for a longer period than two days without the consent of the other, and in case of disagreement, the Governor may adjourn them.
If it be admitted, as claimed, that when acting in their legislative capacity, the proceedings of one house, when the other is not in session, have no validity, it can only be upon the ground that their legislative power is a unit, though distributed, and the parts can only act in unison, and neither the reason nor principle would apjfiy to this case. But the principle contended for cannot be admitted. If at the commencement of the regular session of the Legislature, the Senate, for any cause, should fail for weeks to organize, there can bo no doubt that it would be perfectly competent for the House to perfect its organization, appoint its committees, and initiate legislation. In such case, if after its organization the Senate should pass an Act that had, previous to its organization passed the House in the prescribed constitutional form, would' not such bo a valid law ? The case before the Court presents much stronger reasons why the separate action of one body may be valid in the absence or non-organization of the other, for the Senate acts entirely in a judicial capacity. Its action is independent of the House; and as we have seen, there is no reason why the House should be present or in session, and in the absence of constitutional inhibition we can perceive no reason why the Senate, with the consent of the House, may not adjourn to any period during their term of office, and not beyond the regular [29]*29meeting of tlie Legislature, whether the House be in session or not. If at such adjourned session its acts were confined, as in this case, to duties in which they were entirely independent of the House or any action it might talco, those acts would be valid aud conclusive.
Another view of this point in tho case will illustrate and strengthen the conclusion. Had the constitution conferred the power of trying impeachments upon any other tribunal than the Senate, and named no time for the trial, and fixed no limits for adjournment, no one would have the hardihood to deny that both these matters might be regulated by law.
In this State the Legislature has given express power to the Senate, when organized and sitting as a court for the trial of any impeachment, to adjourn from time to time and hold a session after the adjournment of the Legislature.
Such a law is clearly within the province of the Legislature to enact, but would of course be limited by the last clause of Sec. 10, Art. 2 of the constitution, so that such adjournments can only be made by consent of the House. The law may well be taken as the clearly manifested consent of the House that passed it, that the then Senate might adjourn and hold sessions after the Legislature, but not as the consent of any subsequent House that such sessions may bo held.
But it is denied that the House ever gave its consent to the adjournment of the Senate till June.
So much of the action of the tvro Houses in the premises as is necessary to understand this point, is as follows, as shown in the agreed facts of the case:
On the 26th of February, A. D. 1862, in the House, Mr. Plumb offered the following resolution, which was adopted :
“ JSesolved, That the Board of managers on the part of the House be instructed to move that the first Monday in [30]*30June be set apart for tbe trial of the cases of impeachment against the State officers.”
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By the Court,
Kingman, J.
The facts of the case were agreed upon leaving for the Court to decide the single question, whether the session held by the Senate when it tried' and pronounced judgment in the case, was a legal and constitutional one.
This is denied on two grounds.
1st. There is no power in the Senate to set for the purpose of trying impeaclúnents when the House is not in session.
2d. If such power exists, the adjournment of the Senate to the 1st Monday in June was without consent of the House, and void; and if valid, was annulled by the subsequent concurrent resolution adjourning the Legislature, sme die.
By constitutional provision all impeachment cases are to be tried by the Senate; but as to when the Senate shall set for that purpose or how the trial shall be conducted the constitution is silent except in declaring that the Senators when sitting for that purpose shall be sworn; that the concurrence of two-thirds of the Senators elected is necessary to a conviction, and a limitation as to the extent of the punishment.
In the absence of express provisions..it is presumed that the common law “ will regulate, interpret, and control the powers and duties of the Court of Impeachment,” but this rule, applicable only to the trial and proceedings, affords no guide in determining the question as to the organization of the Court, for in this State the tribunal that tries, as well as the body that prefers the accusation, are entirely unknown to the common law, and if there is such a general resemblance of our legislative assembly to the [27]*27Parliament of Great Britain, as to be easily noticed, the points of dissimilarity are still more apparent and striking. And this, not only in the organization and general powers of the two bodies, but even in this matter of impeachment.
By our law the House of Representatives alone can prefer charges of impeachment; by the common law of Parliament, not only the Commons, but a Peer or the Attorney General at the suit of the King may prefer articles of impeachment. [Com. Dig. V. 238.)
In prosecutions by the Commons upon an impeachment, it belongs to the Commons to demand judgment, (Com. Dig. V. 211,) and the House of Commons have a right to be present whether they appoint managers or not, that every member may satisfy his conscience whether- he will give his vote to demand judgment. (Strafford's Case, 2 Commons Jowmal, 105-108.)
This right of the Commons to be present in cases where the impeachment was presented by them grows out of the assumed right of the Commons to arrest the prosecution by refusing to demand judgment, even after the person impeached has been found guilty. Such power has never been exercised or claimed in this country by the House exhibiting the accusation, and would be utterly subversive of the independent jurisdiction of the Senate as a Court of Impeachment, by subjecting the judgments of the Senate to the review of the House before they would be of any force or effect.
The reason of the usage or right of attendance upon the trial by the Commons having failed, the rule itself ceases, as vre have adopted no more of the common law in this State than is adapted to our situation and applicable to our institutions. The laws of this State, however, by express provision, have empowered the Senate, when sitting as a Court for the trial of impeachments, to hold sessions after the adjournment of the Legislature, and whatever may [28]*28have been the rule of common law, it was perfectly competent for this Legislature to prescribe a different rule unless prohibited by the constitution, and we look in vain for any such provision, either express or implied. Nor is there in that instrument any inhibition of the session of one branch of the Legislature when the other is not in session. There is a fixed time when both Houses shall meet, a limitation of the power of one House to adjourn for a longer period than two days without the consent of the other, and in case of disagreement, the Governor may adjourn them.
If it be admitted, as claimed, that when acting in their legislative capacity, the proceedings of one house, when the other is not in session, have no validity, it can only be upon the ground that their legislative power is a unit, though distributed, and the parts can only act in unison, and neither the reason nor principle would apjfiy to this case. But the principle contended for cannot be admitted. If at the commencement of the regular session of the Legislature, the Senate, for any cause, should fail for weeks to organize, there can bo no doubt that it would be perfectly competent for the House to perfect its organization, appoint its committees, and initiate legislation. In such case, if after its organization the Senate should pass an Act that had, previous to its organization passed the House in the prescribed constitutional form, would' not such bo a valid law ? The case before the Court presents much stronger reasons why the separate action of one body may be valid in the absence or non-organization of the other, for the Senate acts entirely in a judicial capacity. Its action is independent of the House; and as we have seen, there is no reason why the House should be present or in session, and in the absence of constitutional inhibition we can perceive no reason why the Senate, with the consent of the House, may not adjourn to any period during their term of office, and not beyond the regular [29]*29meeting of tlie Legislature, whether the House be in session or not. If at such adjourned session its acts were confined, as in this case, to duties in which they were entirely independent of the House or any action it might talco, those acts would be valid aud conclusive.
Another view of this point in tho case will illustrate and strengthen the conclusion. Had the constitution conferred the power of trying impeachments upon any other tribunal than the Senate, and named no time for the trial, and fixed no limits for adjournment, no one would have the hardihood to deny that both these matters might be regulated by law.
In this State the Legislature has given express power to the Senate, when organized and sitting as a court for the trial of any impeachment, to adjourn from time to time and hold a session after the adjournment of the Legislature.
Such a law is clearly within the province of the Legislature to enact, but would of course be limited by the last clause of Sec. 10, Art. 2 of the constitution, so that such adjournments can only be made by consent of the House. The law may well be taken as the clearly manifested consent of the House that passed it, that the then Senate might adjourn and hold sessions after the Legislature, but not as the consent of any subsequent House that such sessions may bo held.
But it is denied that the House ever gave its consent to the adjournment of the Senate till June.
So much of the action of the tvro Houses in the premises as is necessary to understand this point, is as follows, as shown in the agreed facts of the case:
On the 26th of February, A. D. 1862, in the House, Mr. Plumb offered the following resolution, which was adopted :
“ JSesolved, That the Board of managers on the part of the House be instructed to move that the first Monday in [30]*30June be set apart for tbe trial of the cases of impeachment against the State officers.”
' On the 27th of February, Mr. Anderson by consent, offered the following resolution, which was adopted:
“ Whereas, It has come to the knowledge of this House that there are material and important witnesses, on the part of the prosecution of the impeachments now pending before the Senate, in "Washington, to-wit; James C. Stone, S. C. Pomeroy, George W. Collamore and Martin F. Conway, and that D. H. Wier, Chas. Chadwick and James H. Lane, have left this city since the initiation of these prosecutions, and the House is unable at present to ascertain where the said Lane, Wier and Chadwick are at this time : and
Whereas, These prosecutions nor neither of them can be conducted with effect without the testimony of said witnesses, and the said witnesses are material and important for said prosecutions without whose evidence this House cannot safely proceed to trial; therefore, be it
Resolved, That the Board of managers-be requested to present this preamble and resolution to the Senate and, ask that the trial of these impeachments be postponed until such time as in the opinion of .the Board will enable said managers to procure the testimony of said witness.”
And on the 28th February, in the Senate sitting as a Court of Impeachment, the following proceedings were had:
Hon. S. A. Stinson on the part of the managers submitted the following motion:
“We move that the Court do now adjourn to the first Monday in June next, at 11 o’clock, A. M., which motion prevailed.
Also-an Act which was introduced into the House on the 21st February and was finally passed by both Houses on the 1st day of March, providing:
[31]*31“ That the Senate of the State of Kansas when organized. and sitting as a Court for the trial of any impeachment brought by the House of Representatives, shall have power to adjourn from time to time, and hold sessions after the adjournment of the Legislature.”
These different acts of each House and of both Houses of the Legislature relating to the same subject matter, are both to be taken together.
The passage of the resolution by the House on the 26th of February, asking the Senate to set the trial for the 1st Monday in June, and the adjournment of the Senate sitting as a Court till that time cannot be viewed in any other light than as the consent of the House, previously given, to such an adjournment.
The constitution prohibits the adjournment of one House for more than two days without the consent of the other, but does not point out how or when that consent shall be given. It would be difficult to conceive of a stronger manner of giving that consent than by previous request, reiterated, as in this case, that it be done. But to avoid all cavil the law above quoted was passed the next day, and was in the most solemn manner and with all the forms of legislation, a declaration of the consent of that House, that the then Senate might adjourn at its pleasme and hold sessions after the adjournment of the Legislature. It is essential to the validity of a contract that each of all the parties tó it should give his assent to its terms. Yet few contracts upheld and enforced by the Courts present so strong and varied evidence of the assent of the parties as this case does of the consent of the House to the adjournment of the Senate till the first Monday in June.
But it is insisted that the concurrent resolution adjourning the Legislature sine die on the 6th day of March, 1862, dissolved both branches of the Legislature finally, and they could not be convened again save by an exercise of executive power. It is evident that each branch of the [32]*32Legislature considered this resolution with reference to the previous adjournment of the Senate sitting as a Court of Impeachment, and the law which had just been enacted; and this is the plain sense and clear legal import of the several acts. The Senate, sitting as a Court, having adjourned its sessions as such, to the 1st Monday in June, united with the House in a concurrent resolution to terminate their Legislative sittings by an adjournment sine die on the 6th of March. This is all that the language of the resolution would indicate and all that was intended; and the meeting of the Senate as a Court in June was not in conflict with it, and it must be so held.
All the Justices concurring; Ewing, C. J., Rally and Kingman on the bench.