Where a state constitution directed the governor to call a special session of the leg islature upon the happening of a vacancy in the senate, and he was required by the fed eral constitution to make a temporary ap pointment, he considered that the two were in conflict and he exercised his discretion to disregard the positive mandate of the state constitution and appoint a senator to fill the vacancy. Knox's Case, 29 Pa. Co. Ct. 471 (opinion of Governor (formerly Judge) Pennypacker).
In the trials of impeachment in which thq Chief Justice presides, he is a member of the court with a right to vote. 1 Trial of Pres. Johnson 185 ; Utica Bank v. Wagar, 8 Cow. (N. Y.) 398 ; Rights of Lieutenant-Gov ernor, 2 Wend. (N. Y.) 213.
Sec. 4. When the legislature has failed to "prescribe the times, places and manner" of holding an election under this section, the governor may issue a writ of election, al lowing a reasonable time.for notice. 1 Cont. Elect. Cas. 135. Congress may control the election of senators and representatives and change any existing state regulations; In re Siebold, 100 U. S. 371, 25 L. Ed. 717; In re Clarke, 100 U. S. 399, 25 L. Ed. 715; and it may pass such laws as are required to secure the free exercise of a right of suf frage and punish illegal interference with it; In re Coy, 127 U. S. 731, 8 Sup. Ct. 1263, 32 L. Ed. 274 ; it may also punish violation of duty by election officers ; U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. 857; it may authorize the appointment of supervisors and deputy marshals ; In re Siebold, 100 U. S. 371, 309, 25 L. Ed. 717; and generally may regulate the return and counting of the vote; In re Coy, 127 •U. S. 731, 8 Sup. Ct. 1263, 32 L. Ed. 274.
, Sec. 5. The returns from the state au thorities are only prima facie evidence of election and are not conclusive upon either house of congress ; Spaulding v. Mead, 1 Cont. Elect. Cas. 157 ; Reed v. Cosden, 1 Cont. Elect. Cas. 353 ; and 'a failure of the state executive to grant a certificate of elec tion does not affect the right of one who is elected a member of congress ; id. 95.
A majority of the house is a quorum and a majority of the quorum is sufficient to pass a bill ; U. S. v. Bailin, 144 U. S. 1, 12 Sup. Ct. 507, 36 L. Ed. 321; and the house may deter mine any means, not in violation of the con stitutional restraints or fundamental rights, for ascertaining the presence of a quorum, as by rule authorizing the counting of members who do not vote sufficient to make a quo rum; U. S. v. Bailin, 144 U. S. 1, 12 Sup. Ct.
507, 36 L. Ed. 321.
Each of the two houses possesses an in herent power to punish for contempt; Ander son v. Dunn, 6 Wheat. (U. S.) 204, 5 L. Ed. 242 ; the power cannot be delegated, though a law providing for the indictment of a con tumacious witness is valid ; In re Chapman, 166 U. S. 661, 17 Sup. Ct. 677, 41 L Ed. 1154. The power to punish for contempt requires that the matter in question shall be strictly within the jurisdiction of the body ; bourne v. Thompson, 103 U. S. 168, 26 L. Ed. 377, which overrules Anderson v. Dunn, (I Wheat. (U. S.) 204, 5 L. Ed. 242, on the point that the warrant of the speaker for the com mitment of the witness is not conclusive by way of justification to the serjeant-at-arms in an action for false imprisonment. The court relied upon some English cases as au thorities; 4 Moore P. C. 63 ; 11 Moore P. C. 347; 4 Moore P. C. (N. S.) 203.
The power to expel a member has been held to cover an offence not punishable by statute but inconsistent with the duty of a member. Blount's Case, cited 1 Story, Const. § 838 ; Smith's Case, I Hall, L. 459. The constitutional power granted to each house to keep a journal of its proceedings does not make it evidence that an enrolled bill has passed containing a section not ap pearing in the enrolled act filed in the state department ; Marshall Field & Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294. Sec. 6. The privilege from arrest extends to all indictable offences ; 1 Story, Const. § 865; but it has been held that the privilege from arrest of a member of the legislature applies only to civil process and not to cases of crime or misdemeanor. Com. v.. Keeper of Jail, 4 W. N. C. (Pa.) 540. The privilege ex tends to the service of civil process while in attendance on their public duties ; Geyer v. Irwin, 4 Dall. (U. S.) 107, 1 L. Ed. 762 ; Nones v. Edsall, 1 Wallace, Jr. 191, Fed. Cas. 10, 290; Respublica v. Duane, 4 Yeates (Pa.) 347; and the privilege extends to the period of going or returning as well as the time of attendance ; Lewis v. Elmendorf, 2 Johns. Cas. (N. Y.) 222 ; and it protects a member who loses his seat on a contest until his re turn home in the shortest reasonable time; Com. v. Crans, 2 Clark (Pa.) 450.