The opinion of the court was delivered by
Beasley, Chief Justice.
This case has been placed before the court on a-rule to show cause why an information in the nature of a quo loctrranto should not "be issued against these respondents, each of whom claims, and to some extent has exercised, the office of president of the senate of New Jersey. Under this procedure evidence has been taken, and it thus appears that the twenty-one senators of the state have divided themselves into two bodies, that is to say, nine of the [615] old members, who were styled in the argument “ hold-over members,” constituting one of such bodies, and four holdover members with seven newly-chosen senators constituting the other body. Subsequently a newly-chosen senator joined himself to the body made up of hold-over senators, making that body to consist of ten senators, the other consisting, as just shown, of eleven. The former of these bodies will be referred to, in order to avoid periphrase, as the Adrain senate, the latter as the Rogers senate. Mr. Adrain’s so-called senate has been recognized officially by the governor and remains in session. The Rogers so-called senate is recognized officially by the house of assembly, but has been refused official recognition by the executive; it has passed various laws and, with the co-operation of the lower house, has appointed a treasurer and comptroller of the state.
The above is a description of the general aspect of the case, and it will be sufficient for immediate purposes.
The object of the present course of law is to establish by a judicial judgment which of these contestants is the genuine and which the spurious state senate, for they cannot both be genuine. But before proceeding to dispose of that important question, the counsel of Mr. Rogers have interposed a preliminary one, which is whether this court can take cognizance of such a litigation.
It is confessed that the argument on this subject denying the existence of the judicial power in question has not been impressive. In my judgment it is founded, in all its parts, on a sheer petitio prineipii, or on a denial of a legal principle so entirely established as not to be debatable, for it proceeds on the assumption that the senate it advocates is a constitutional senate, or that the judgment of a majority of the senators elected with respect to the question whether or not they have organized in conformity to or in violation of the constitution of the state is conclusive and final. It will be observed that the contention of the applicants for the writ is that the Rogers senate has no legal existence, inasmuch as it was organized in a manner contrary to the fundamental law; and the proposi[616] tion, therefore, would seem very evident that, as no power is vested by the constitution in the majority of senators to construe such law in this respect, the power to expound and enforce it is lodged in the ordinary legal tribunals. Referring to this judicial prerogative, Mr. Cooley, in his work on ■Constitutional Limitation, p. 46, says: “ The right and power of the courts to do this are so plain and the duty is so generally, we may almost say universally, conceded that we should not be justified in wearying the patience of the reader in quoting from the very numerous authorities on the subject.” It was certainly, therefore, the unexpected that happened when learned counsel, in reply to the contention that the senatorial organization in question was inconsistent with constitutional prescriptions, assumed the position that this court could not entertain jurisdiction in the case, as the interpretation of the constitution was a matter, in the language of the brief before us, “ of a purely legislative character.” It is believed that no decision has been made for a century past that does not antagonize such a proposition.
It will be understood that in this vindication of what is esteemed to be the undeniable prerogative of this court, there is not the slightest suggestion of the existence of a judicial capacity to control the legislative authority when exercised within its appropriate sphere. If the question here ¡presented had been whether this senatorial body had been organized in the accustomed mode, or in open violation of its own practices and rules, a totally different subject of inquiry would have been sub judice, and it' may well be that the decision of such senatorial body itself Avould have been received as conclusive and entirely beyond the power of this tribunal to review. This court does not claim the slightest legal faculty to supervise or interfere with such transactions. All that is asserted is that when the inquiry is whether the legislature or any other body or officer has violated the regulations of the constitution, it is entirely plain that the decision of that subject must rest exclusively with the judicial department of the government. Nor can we for a moment forget that, in en[617] tering upon the inquiry that is now imposed upon us as a duty, we have to do with a subject of great importance and delicacy, and that before the restraining power of. this court can be exerted to interfere with the action of a co-ordinate branch of the state government, we must be as certain as care and diligence can make us that the foundation on which we place ourselves is sure and stable.
That this court has the legal right to entertain jurisdiction in the case displayed by this record, we have no doubt, and we are further of opinion that it is scarcely possible to conceive of any crisis in public affairs that would more imperatively than the present one call for the intervention of such judicial authority.
With respect to the further contention that the presidency •of the senate does not belong to that class of officers whose legality can be put to the test by force of a proceeding in the nature of a quo warranto, our conclusion is that such contention cannot prevail. The statute of this state, being broader thau its English prototype, describes in terms of the utmost generality the scope of this remedy, for it declares that it shall be applicable to every case in which “ any person or persons shall usurp, intrude into or unlawfully hold or execute any office or franchise within this state.” Consequently it does not seem deniable that all offices, as well those derived from the legislature as those derived from other sources, are comprehended by this definition, and the consequence must be, therefore, that the statutory provision just cited justifies the present proceeding, unless it can be shown that such action would be inconsistent with the constitution or privileges of the senate as an independent department of the government, and, indeed, this was one of the positions of counsel in the argument before us, but we think it is obvious that whatever seeming force such an argument has is derived from the petitio prinoipii before alluded to, for it assumes as its •basis that the court is taking proceedings against the officer of a genuine senate. But the assumption is unfounded, as the process that we are now asked to order is to be directed [618] against the appointee of a senate that it is alleged is spurious-It seems to be plain that such action cannot be an infringement of the prerogatives of the real senate of the state. And in disposing of this part of the case no stress is laid on the-fact that each of these respondents, if legally in power, is entitled to hold, ex offieio, certain high offices by virtue of the constitution and laws-of this state, for it seems to be well to-place the right of the court to authorize the use of the present procedure on the distinct ground that it is the appropriate- and legal remedy whenever it shall be made to appear that any person is holding himself out as a public officer by senatorial appointment, when, in point of fact, such appointing-body has no existence, in view of constitutional provisions- and regulations. As at present advised, I do not perceive how in any case there can be any judicial interference with the actions, appointments or proceedings of a true* senate of the state, unless the same shall be shown to be out of harmony with the constitution itself. We wish it to be understood that we do not intend to, and do not decide anything-further than the case now before us. When by judicial action it becomes necessary to demark the constitutional lines which-separate the jurisdiction and powers of the several independent departments of government, each from the others, we are-deeply conscious that in such momentous matters we should be always on our guard, and that our judgment with respect to them should be invariably in the concrete, for experience has demonstrated that theorizing and speculation on such occasions are dangerous in the extreme, and are inventions that have generally returned “ to plague the inventor.”
Having thus briefly disposed of the preliminary question-in favor of the jurisdiction of this court-, it becomes necessary to proceed to an examination of the legal .aspect of the case as presented in the issue upon the record.
That issue has been framed in this wise, in order to expedite the determination of the case: The counsel of these litigants agreed that if cognizance should be taken by the court of this controversy, it should be assumed that an information [619] had been filed and that each of the contending parties had interposed his answer stating the facts which appear in the-evidence and which are not in dispute, by force of which he seeks to vindicate his title and that reciprocal demurrers-should then be put in, thus exhibiting to the court the litigated points to be determined.
The facts contained in the answers alluded to are somewhat voluminous, and will be found contained in the statement which prefaces this proceeding.
Upon looking into the presentation of the facts thus indicated, it will be at once apparent that the central ground of controversy between these rival organizations, is with respect to the right of the Adrain senate, or what is called the holdover senate, to dominate on the occasion of the introduction of newly-elected members into the senate.
In the very able and carefully-considered briefs of the-attorney-general and his associates, this dominance is claimed to exist on the ground that, by the proper construction of the constitution of the state, the state senate is a continuous body—that is, that it has perpetual life, and that consequently a member elected to one of its seats cannot enter it until his title has been passed upon by the ever-existing body. It has-not and cannot be pretended that this doctrine has its root in the actual expressions of the constitution, and it therefore is admittedly the creature of construction.
The only provisions of the constitution pertinent to this-subject are the following: Article 4, section 1, provides that the legislative'power shall be vested in a senate and general assembly, and in paragraph 3 of the same section, it is provided that “ Members of the senate and general assembly shall be elected yearly and every year, and on the first Tuesday after the first Monday in November; and the two-houses shall meet separately on the second Tuesday of January next after the said day of election, at which time of meeting the legislative year shall commence,” &e.
Section 2 provides that the senate shall be composed of one [620] senator from each county in the state, elected by the legal voters of the counties respectively for three years.
By the second paragraph of section 2, article 4, it is provided “that as soon as the senate shall meet after the first ■election to be held in pursuance of this constitution, they shall be divided as equally as may be into three classes.” The seats •of the senators of the first class shall be vacated at the expiration of the first year, of the second class at the expiration of the second year, and of the third class at the expiration of the third year, so that one class may be elected every year, &c. It is apparent that these recitals fully justify the remark just made that the constitution does not attempt to define the life of the senate, yet, notwithstanding such silence, the attorney-general and the counsel of President Adrain raise the contention that the state senate, like the senate of the United States, has a continuous existence; that there can be no such thing as an old senate and a new senate, and that there has ■been an unbroken continuity of existence of this body from its birth to this hour. And as a corollary of this doctrine, it is further insisted that this self-sustaining body is the sole judge of the right of newly-elected senators when they apply for admission to its seats, and that it can, on such occasions, receive or reject them at its will.
•In the application of this theory to this case it was claimed that the body presided over by Mr. Adrain had the right to require that the credentials of senators-elect should be placed before it to be retained and to be adjudicated upon at such time and in such mode as itself might deem proper.
If the state senate has the inherent vitality thus asserted, it seems to be undeniable that it had the power to act as it ■did on the occasion that has given rise to this litigation, for, by the plain language of the constitution itself, it is declared ■that “ each house shall be the judge of the elections, returns and qualifications of its own members.”
It will be perceived, therefore, that the question now to be ■considered and decided by this court is, has the senate .of the state the perpetuity thus claimed ?
[621] The first and most elaborate argument pressed with such force and earnestness upon the attention of the court by the learned attorney-general and his able associate, Mr. McDermott, was grounded almost entirely upon the fact that the clause in the constitution of the state that gives to the membership of the senate a continuity of life by a succession of members in such a way that provides for the continued presence of a quorum of the body, was a transcript of a similar provision in the federal constitution, and it was thereupon further insisted that the language of the regulation so adopted had, before its adoption, a settled meaning, denoting the permanent existence of the body regulated by it.
If we were to assume the truth of the foregoing statement in all its parts, no one could doubt that the reasoning founded upon it would be entitled to great weight. It cannot be denied that the section is, in substance, a copy of a clause of the same import in the constitution of the United States, and if the clause so imported had antecedently received an authoritative interpretation, it would be but reasonable to infer that the framers of our organic law, many of whom were jurists of great learning and experience, understood the provision in the sense thus impressed upon it. Under such circumstances, no other conclusion would be at all rational. The “ rule is well settled,” says this court in the case of Fritts v. Kuhl, 22 Vroom 191, “that where a statute or a constitutional provision of a doubful import has been adopted in one slate from the statutes or constitution of another state, after a practical construction has been given to the language by judicial decision, it will be presumed that the interpretation adopted in the state from which it is taken has been adopted as well as its words.”
If, therefore, counsel on this occasion are jusiified in predicating that the clause under criticism had acquired, in the manner indicated, a settled signification at the time in question, it must be admitted that this would be the sense in which it should be now read and understood.
[622] But, upon careful examination of the subject, I am' satisfied that the assumption in question is wholly without basis. So far as I have ascertained, no person, whether text-writer, jurist or statesman, has ever asserted that the clause under discussion bears the force and meaning now for the first time imputed to it. And it would have been singular indeed if any critic had ventured to express such an opinion, for the constitutional provision obviously would refuse to bear such treatment. The expressions employed do not in any degree import the continuance of the senate itself, but simply provide for the succession and length of the terms of the members of that body. It is true that, by providing an always-•existent membership, the clause imparts to the body the potentiality of a permanent existence, but it does not impart to the body such continuous vitality. I think it is safe to say that never, on any occasion, has it been suggested that the clause has any further reach than this. The senate of the United States has been declared to be a permanent body, and when the subject was under discussion it was on all sides assumed that the section' in the federal constitution from which, as has been stated, our own has been copied gave to the senate an aptitude for a continuous existence, but it was never alleged that it was possessed of any further effect. The vivifying force that was infused into the body thus made capable of receiving it was looked for and discovered in other constitutional adjustments, and especially in the provision that gave to the senate an always-existing presiding officer. This is a factor mentioned and relied on by every one who has written upon the subject, and, similarly, it has been the principal argument in all debates relating to the longevity of the senate. It was deemed that permanency of the presiding •officer constituted the permanency of the body itself, as, by such a constitution, there was no necessity for periodical reorganizations.
It is obvious, therefore, that the construction put upon the national constitution can have but little effect in- an effort to construe our own. The problems are differently conditioned, [623] •so that the solution of one of them, will afford but slender assistance in the solution of the' other. We must construe our own constitution exclusively by its own lights.
Adopting this method, I will now turn to the several pro-, visions of the constitution of the state that appear to me in any degree to elucidate the question under consideration.
Upon opening this instrument, the first feature of it that, in connection with the subject in hand, strikes our attention is the declaration that “ the senate shall be composed of one senator from each county in the state, elected by the legal voters of the counties,” &c.
In looking at this constitutional mandate, the inquiry at ■once arises, does it mean that at all times, within the range of human possibility, such shall be the composition of the body in question, or that it shall have such composition only sometimes? Does it mean that, on some occasions, the senate shall be composed of one senator from each county, and on ■other occasions, in the orderly working of the system established, it shall be composed of only two-thirds of such members ? It is’ difficult to see how it can be plausibly argued that the clause cited is not designed to establish, as far as possible, a permanent composition of the senate.
And this view, it must be admitted, is much strengthened when we look at the purpose of this provision. That purpose, obviously, is to provide that each county shall be perpetually represented and have a voice in this body on every measure that comes before it, whatever its nature may be. To deprive a county of such a prerogative is plainly unjust, ■and therefore it is clear that any construction that tends to the production of such a wrong should be viewed with distrust and should not be sanctioned unless upon considerations that amount to a demonstration of its correctness. And, adopting this as the guiding principle, it becomes at once manifest that it is scarcely possible to maintain, successfully, the proposition that it is not the entire body of senators, but •only a class of them, who are to take part in the organization of the senatorial body. The importance of that function [624] strongly repels such a theory. Organization involves the' composition of the body organized, and consequently it involves the right of the counties to participate in the decision of the all-important question, which of them shall be represented in the body and which of them shall be unrepresented?' It seems to me that the mandate of the constitution, that the senate shall be composed of one senator from each county, cannot be reasonably enforced except by the adoption of the' hypothesis that each senator shall have a voice in all the proceedings that result in the composition of the body itself. When, therefore, on the occasion that gave rise to the present controversy, it was asserted that one-third of all the counties of the state should be excluded from all participation in a transaction so vital to their rights and affecting so intimately the interests of the entire commonwealth, a doctrine was asserted that must be considered as devoid of all reasonable foundation, unless it can be made plainly manifest from the provisions of the primary law of our state. The principle that two-thirds, or even a lesser number, of the senators chosen by the counties shall have absolute ascendency in the organization of the senate is, it should be noticed in passing, not only antagonistic to the language and spirit of the constitutional clause just cited, but is, likewise, in conspicuous violation of that great and fundamental law underlying all our institutions, that it is the will of the majority of the people that is supreme. He who asserts that this axiom, which may be called national in its character, does not prevail on any occasion, must prove his proposition, and must prove it conclusively, for every legal intendment will, a priori, be against its truth. It is not too much to say that, with regard to the transaction before us, this cannot be done except by putting a finger on the very section or sections of the constitution in which the alleged heterodoxy is to be found unambiguously written.
That this was not done by the counsel arguing before us in favor of the doctrine that in the all-important affair of organizing the state senate it is the minority and not the majority [625] that shall rule, is conspicuously manifest from the fact that the only constitutional clause that was relied upon was the one that distributes senators into classes, but as it has appeared that such clause is just as applicable to the supposition of an annual senate as it is to that of a perpetual senate, it is manifest that a reference to that section is altogether futile.
But while this was the only citation relied on for the purpose of proving the existence in this state of an ever-living senate, my examination has led me to the discovery that others exist that cannot, in my opinion, be reconciled with the doctrine contended for.
The first provisions of the class indicated are those clauses of the constitution which to all appearance provide for a yearly organization of both the senate and the house of assembly. In this respect the two bodies are placed upon the same footing and subjected to the same regulations. Ho express power to organize is conferred upon either of them, but by necessary implication it belongs similarly to both. The assemblymen and senators are required to meet yearly at an appointed day. With respect to the former class, each of the class lias the undoubted right to take part in the organization, and it would certainly seem to follow that each senator is vested with a similar prerogative. When the power to organize is merely a legal intendment, the power consists in a right to organize in- the customary manner, and it therefore excludes the notion of a minority ruling in the transaction. In the case of the assembly, it is admitted that the organization must be effected in accordance with usual -modes; in that affair it is not pretended that there can be any dominance of a minority. It does not appear, therefore, how it can be reasonably maintained that the senate, in exercising this important function, shall,be subjected to an abnormal condition, and that in its case there shall be a dominance of the minority. The organizing power of the senate being derived in its totality by legal implication, it appears to be plain that the law will not imply a regulation that would be both unusual and unjust.
[626] The next provision to which reference will be made appears to be of paramount importance. It is to be found in paragraph 3 of section .1, in article 4. It is thus expressed: “ Members of the senate and general assembly shall be elected yearly and every year on the first Tuesday in November, and the two houses shall meet separately on the second Tuesday in January next after the said day of election, at which time of meeting the legislative year shall commence.”
This clause is significant, with respect to the subject we are considering, in all its parts, its first observable feature being that it appoints a day for the organization of both legislative houses. The purpose for the meeting on the day specified cannot be doubted, indeed it never has been doubted; it has always been so understood and acted upon. It therefore is plain that it is a direction for the senate to organize, for the expression is, “ the two houses shall meet separately.” Both houses here are placed upon the same basis for the same purpose, and most assuredly they are thus similarly treated as though an organization were equally essential to the legal existence of each body. The assembly is of course a body that needs a yearly reorganization, and the senate is here required, to all appearances, to do precisely what the assembly is directed to do. Beyond all question we here find that a duty is imposed on both the assembly and the senate to convene at an appointed time and to effect a yearly organization. Such a regulation is appropriate to a body that expires yearly, but it is most inappropriate and unprecedented in its application to a body that is possessed of a permanent life. In the practice of the United States senate, which we have stated is an ever-living body, there, is no fixed day for the admission of members-elect. The certificates of incoming senators are presented from time to time on convenient occasions, and are thus severally passed upon.
From the regulation in question it appears to be, if not the necessary at least the reasonable inference, that the senate of this state is no more a continuous body than is the assembly.
[627] The two remaining regulations of the section cited lead strongly, as it is deemed, to the same result. The first of •these is the direction, in the language of the statute, “that the two houses shall meet separately on,” &c. Now it is obvious that the expression “houses” must of necessity be construed to denote the members of such houses; it can mean nothing else, for it is obvious that at the time specified there is no house of assembly in existence. Ascribing, then, this necessary signification to this expression, we have a constitutional direction that the members of the senate shall assemble at the time specified in order to organize. It does not seem that it can be denied that such a regulation in a very perspicuous form repudiates the notion of a continuous senate.
Also, in the next place, the designation of a legislative year—that is, when such year shall begin and when it shall end—tends in the same direction. What has a perpetual body to do' with prescribed periods of time ? The legislative year thus established obviously accords with the official life of the assembly, and it appears to be reasonable to suppose that it was meant to accord with a senatorial life of equal extent.
In fine, after a very careful study of the constitution of the state, my conclusion is that its intimations are all to this effect, that the claim advanced for the first time on this occasion, that the senate is a permanent, continuous body, is without any solid foundation.
Nor has there been found any more substantial basis for the doctrine just discarded in the past practice of the senate in respect to its yearly organization.
The practice may be thus generally described: In the first instance the senate, under the new constitution, was organized as the house of assembly now is, by the action of all its members ; then for some years afterwards upon the senators convening, a roll containing the names of all the senators was called, but in subsequent years the practice was to call the names only of the senators holding over. This was not an unnatural course, as those senators had theretofore taken the oath of office and their credentials had already been inspected. [628] In this condition of things the custom obtained for the incoming. members to present their credentials to the body of senators holding over, and upon their approval they were-sworn in. The office thus performed by the old senators was, in substance, purely formal, as much so as though they had been a committee appointed by the body of senators to inspect and to report upon the credentials of the new senators. On. no occasion did they exercise any other power, nor did they ever pretend to be possessed of any other power. There is not an instance' in which they undertook to adjudicate on the-right of a senator-elect- to his seat, nor did they ever hold such right in suspense.
If this body has the absolute power now asserted for the first time and after a lapse of half a century, it certainly would be a most strange circumstance that, during this long period, the existence of such power was never manifested by a single word or a single act. The claim of such an imperial authority made at this late day is an entire novelty, and, like most novelties in legal matters, is not well founded. It is likewise in this connection important to note that during this-long time the senatorial action was regulated by the eighty-fifth section of the act relating to elections (Rev., p. 353), which is in the following terms*: “That the senate and assembly shall convene and hold their sessions in the statehouse in Trenton ; and in the organization of each house the certified copies of the statements of determination made under the direction of the sixty-ninth section of this act, shall be deemed and taken to be prima facie evidence of the right of the- persons therein mentioned to the seats in the houses respectively to which they shall have been so determined to be elected.”
No one can look at this act and fail to perceive that it is absolutely irreconcilable with the theory of an ever-existent senate. This is so entirely the case that the very astute counsel of President Adrain insisted that it was void, as it attempted to prescribe to an existing senate a rule controlling its action in a matter committed to its exclusive jurisdiction-[629] by the constitution. On the premises postulated by counsel "that the senate is ever living, his argument was invincible, but the existence of the statute and a submission to it for such a cycle of years, exhibit, in a very impressive form, the fact that the contemporaneous construction of the constitution in the particular in question was adverse to the present claim ■which I have designated as a_novelty. This statute is not to be misunderstood in this respect, that it provides for the introduction of senators by the process of organization, and it rejects altogether the idea of an admission of senators into a body already formed and continually existing. When we add to the fact that the ancient and continued practice has been in pursuance of and in obedience to this law, the further •circumstance that the senate as a riiatter of fact has been and must of necessity be yearly organized, and that in the performance of the ultimate act in such process—that is, in the choice of its permanent president—all the senators elected have invariably co-operated, the pretence of a continuous senate must be declared, to be an utter fallacy. The construction that would convert this customary method of senatorial procedure into a practice to admit members into a body ■•always existing, and therefore always organized, seems to me an afterthought; and the fact that such a theory is a novelty undreamed of for half a century is, of itself, enough to explode it. In legal affairs it is the practical and common-sense view ‘ that in general is the true view, as neither the affairs of men nor of states can be regulated by logical refinement; where ■subtilty begins the law ends. When I accept, therefore, the understanding that plainly appears to have prevailed for so long a time, I feel great confidence that I have not fallen into error. The doctrine in question stands, I think, condemned, both by the intimations of the constitution itself as well as by a-long-continued and practical exposition.
There is still another consideration that should not be overlooked. It is this: that if if be true, as claimed, that the senate of the state be a continuous body, into which no member can enter except by its own action, it inevitably [630] follows that the constitutional government of this commonwealth. must come to an end whenever and at the moment that it shall occur that four of the members of such continuous body shall, before the introduction of new members, be permanently absent, by reason of death, resignation or from the exercise of an unbridled will. Annually there are fourteen senators continuing in office. Of these, eleven are necessary to form a quorum, and, in the absence of such quorum, the constitution itself declares'that all that a smaller number can do is “to adjourn from day to day.” No person will claim, therefore, that a senate destitute of a quorum could' admit as one of its members a newly-elected senator. The consequence is that if, in any year, the senate should lose four of its members from any cause whatever, the state government would be, ipso facto, destroyed. In such a crisis the state would be without a legislature, and it could not rehabilitate itself in that respect by any method inherent in the constitution. Such an anarchic condition could not be remedied' by a constitutional amendment, as such a device could not be effected without the assent of a legal senate, which, in the-case supposed, would be non-existent. In fact, no resort would be available but an appeal to the people of the state to-construct a new government in the exercise of their right of ultimate sovereignty. For it will be observed that to fill up-the mutilated senate by an election would be of no avail, as such new members could not be inducted into a senate that was devoid of a quorum. It is believed that no one will maintain that the distinguished jurists and statesmen, who-constructed our government with so much skill and wisdom,, intended to stake its very existence on the happening of an event that might occur within a few months after its establishment. And it is equally certain that no citizen of this state has ever, until the present occasion, entertained the belief that the entire government was, like a house of cards built by a child, likely to fall to pieces at any moment at the touch of an accident. It seems irresistibly to follow that a theory [631] necessitating such a result as this cannot be well founded—it calls for no refutation—res ipsa loquitur.
It will not be unobserved that the foregoing consideration appears to repel altogether the hypothesis that there is any real similitude between the state of things to which our own constitution applies and that which is the subject of the constitution of the United States. In point of fact, no differentiation could be more marked, for if we adopt the discarded theory, the constitution of this state, as has appeared, must, from an inherent defect, come, in its normal operation, io a casual and violent death, while that of the Union, as applied to its subject, is not liable to any defeasance by reason of any intrinsic imperfection. It appears to the court, therefore, in the light of such conditions as these, that it is unreasonable in the extreme to contend that the latter constitution has been, with respect to its general structure and purpose, the prototype of the former merely because, in certain of the clauses of the two instruments, there is found to be an identity of expression and purpose.
The result of the inquiry before us is that we have concluded that the senate of New Jersey is not a continuous body, but that it expires annually, in the same sense that the assembly does.
Therefore, our conclusion is that Mr. Adrain has no title to the office that he ostensibly holds, and that the appropriate judgment- must be entered against him.
With respect to the title of the opposite claimant, Mr. Rogers, we hold that his title must be regarded as constitutional and valid. Our resolution in this regard is founded entirely on the ground that, touching the act of reorganizing its own body, the majority of senators are the absolute masters of the occasion. Such action is taken by a body co-ordinate with ourselves, and whose proceedings, when not violative of the constitution of the -state, we have no capacity to supervise or control. In our opinion, when a majority of senators organized the senate and elected Mr. Rogers its president, [632] such action was and is conclusive upon this court as well as upon all departments of the government.
Let a judgment be entered accordingly.
Justices Depue, Van Syckel, Dixon, Reed, Garrison and Lippincott concurred.