1. Understanding Under Which Assemblies Meet.— Every assembly meets with the implied understanding that it will be governed and controlled by the general custom applicable to assemblies, which custom is called general parliamentary law. This is implied from its very existence, since no action can be taken without some rules, and special rules can not be had without parliamentary action. In a word, a lawful assembly met to express an opinion or do an act must have some order of proceeding, and the system which we call parliamentary law, having grown out of the necessities of the case and having been universally acquiesced in, has become the governing law of such assemblies, confidently appealed to by each member. Where special exigencies require it these unwritten rules are supplemented by Special Rules just as the common law is supplemented by statutes. Where the special rules do not modify, change, or obliterate any rule of general parliamentary law, that rule still governs just as the common law controls where the statute has not modified it.
2. Nature of Assemblies.— Assemblies differ, not only in their character as legal or voluntary, but also in the nature of the right of membership. Some require an elaborate organization. Others are best served by the simplest methods.
3. Voluntary Assemblies.— An assembly may be a voluntary one, called together by those interested, and of which any one who comes and who answers to the description of those called, can be a member. Political mass meetings, meetings to express the opinions of citizens, and meetings to form associations, are of this class.
4. Legislative and Constituent Assemblies.— An assembly may be one constituted by law, and those only can be members who are chosen or appointed by law, or who by virtue of credentials seem to be so chosen or appointed. Constitutional conventions, legislatures, and municipal councils are examples of this kind of assembly.
Other assemblies are constituted under a call by competent authority without special warrant of law, though under its sanction, in such a way that each member of them, though chosen by a voluntary assembly, must present credentials in order to prove himself a member. Political conventions to make nominations are examples of this sort of assembly.
5. Adaptation of Organization to the Assembly.— It is evident from the nature of the case that these different kinds of assemblies require different kinds of organization, not different in character, but in extent. Those assemblies the membership of which can not be in dispute, and the purposes of which are neither numerous nor complicated, can organize permanently at once, and need only a very simple system.
6. Membership of Assemblies—Credentials.— Those assemblies the membership of which may be in dispute, and in which individuals have no right to participate without credentials, can not, it is obvious, fully organize until the preliminary question of membership is settled. Such a question is too vital to be postponed, and the results of a convention or a legislature are too deeply affected by the organization for that to take final shape until the question of membership is settled.
In bodies constituted by law, that chaotic moment when the assembly meets and does not yet know its membership has been fraught with so much disorder, confusion, and discord that there is usually some method pointed out by statute for the preliminary examination of credentials.
7. Permanent Organization of Assemblies.— In the House of Representatives the Clerk of the preceding House makes up the list of members, which list is regarded as conclusive for the time being, and at once the House called to order by him proceeds to permanent organization. Until the Speaker is chosen this Clerk presides.
So important is the initiative of organization, and so dangerous is the situation considered, that various expedients have been adopted for legislative bodies in various countries. We have already stated that adopted in this country in regard to the House of Representatives. In France the Chamber of Deputies is organized by the oldest member taking the chair, with the six youngest members as secretaries. The secretaries act until the permanent organization, but the presiding officer, who takes the chair by virtue of his age, retains it only so long as is necessary to choose a temporary president and two temporary vice-presidents. The temporary president is then installed, and the assembly proceeds to ascertain who are members. When the membership is ascertained, then the permanent organization is made.
In Italy the chair is taken by the earliest named vice-president of the preceding session, or, if there be none of that session present, then by the one present of the session least remote. If there are none of any session then the oldest member acts.
By the provisions of the constitution of Rhode Island, “the senior member from the town of Newport” is temporary president of the popular branch.
8. Temporary Organizations.— Where no provision of constitution or statute exists, and in bodies voluntary in their origin, but requiring credentials to entitle those proposing to act to membership, a preliminary or temporary organization is first had, and immediately the credentials are examined, usually by the aid of a committee, whose judgment is submitted to the assembly and passed upon by it. The permanent organization is then made.
9. Definition.— The quorum of an assembly is that number which must be present to constitute the assembly a body competent to transact business legally.
10. Number Necessary.— There is no definite rule applicable to all cases. It is commonly stated that in the absence of special regulations, either constitutional, legal, or by order of the assembly itself, a majority of the members is necessary to make a quorum. This statement is inaccurate. In some assemblies whoever comes is authorized to act and bind all the others. In other assemblies the quorum is a majority, and in still other cases all must be present.
11. Assemblies Which Do Not Require a Quorum.— Assemblies which act on their own responsibilities, and which are not representative or judicial, do not require any quorum. Town meetings in New England, stockholders' meetings, and voluntary meetings generally are of this class.
12. Assemblies Which Require a Majority.— Where the body is a representative one, performing the functions of government for a constituency, or a financial one, managing the business of the corporation which selected it, the quorum is a majority, and can neither be increased nor diminished by the vote of the body. City councils and boards of directors are of this class.
13. Cases Where All Must Be Present.— Where the body is appointed by law, or by virtue of law, to perform a single act, or a series of acts relating to a single subject, which requires the exercise of judgment and discretion, the whole board constitutes the quorum. All must be present and deliberate, but the majority is competent to act. Referees are of this class.
14. Fixed Quorums.— In most public bodies the number necessary to make a quorum is fixed by the constitution or by statute. In voluntary bodies it may be fixed by the body itself.
15. The Presence Only of a Quorum Required.— The quorum required to constitute an assembly and render it competent to transact business is a present quorum and not a voting quorum. In all cases, if the number necessary to make a quorum is present, it makes no difference how many or how few actually participate in the decision. Those who sit silent are regarded as consenting to the result. Such was the recent decision of the United States Supreme Court, which decision was in accord with every decision of every State Supreme Court which has ever passed upon the question.
In strictness a chairman ought not to take the chair until after the appearance of a quorum, but in practice in this country he always does; and until a member from the floor or the presiding officer raises the question of quorum a quorum is always supposed to be present.
16. Practice in the House of Representatives.— Under the rules of the United States House of Representatives the Speaker takes the chair at the hour indicated by the rules or by the special order of the House, and, “upon the appearance of a quorum,” proceeds to lay before the House the business in order. In practice, notwithstanding this rule, the business begins as soon as the Speaker takes the chair, a quorum being presumed to be present, and continues until the suggestion of no quorum is made.
Notwithstanding the decision of the United States Supreme Court already mentioned, the Fifty-second Congress continued to require a voting quorum. No one who refused to vote was regarded as present, however visible or vociferous he might be. In the Fifty-first Congress a constitutional quorum, that is, a “present quorum,” was required, which practice was pronounced legal by the Supreme Court.
On April 17th, 1894, the Fifty-third Congress adopted the doctrine of a present quorum by a vote of 213 to 47, and that question seems to be settled.
In the French Chamber, where a majority is a quorum, it was decided in 1878 by President Grévy that the presence and not the participation in the vote of 267 members is necessary for the validity of the votes of the Chamber of Deputies.
17. Is a Quorum Required During Debate?— While it is settled that no conclusion can be arrived at, no decision made by a parliamentary body unless the quorum be present, it has not yet been authoritatively and definitely decided in the House of Representatives that the presence of a quorum is absolutely necessary during a debate. In the House of Commons, where forty constitutes a quorum, a member speaking may be taken off his feet on a suggestion to the Speaker that there is no quorum. The Speaker then, after a short interval, and after causing bells to be sounded in the lobby, counts the members in sight, even those whom he can see approaching through the open doors, and if forty can be counted the speech may go on; if not, the House is adjourned and the member speaking is said to be “counted out,” which “counting out” is not regarded as flattering.
Reason and analogy would seem to be on the side of the English practice, which is also the practice of the Senate, but where so large a quorum as a majority is required, and where the body is numerous, there would be much inconvenience caused by insisting on the requirement. In the French Chamber a quorum is not necessary for debate.
18. Quorum in Committee of the Whole.— The quorum of the Committee of the Whole is a majority, unless the assembly should otherwise determine. As the Committee of the Whole is the creature of the assembly, its instrument and means of work, and is merely advisory in its action, any number may constitute a quorum at the pleasure of the assembly.
19. Practical Application of the Doctrine of Quorum.— A quorum is presumed to be present, even if the vote does not indicate it, if no member raises the question. In practice, in large continuous assemblies, the majority of members a great part of the time neither audibly nor visibly vote, being content to assent passively to the result.
20. Adjournment, a Quorum Not Being Present.— If a quorum be not present, and that fact is ascertained by a count by the Chair, or in any other way previously determined by the assembly, the assembly must adjourn, unless it remains in session to compel attendance. If no time has been fixed for the next meeting, the assembly, even if there be no quorum, may fix the time. Otherwise an adjournment would be a dissolution.
21. Effect of No Quorum in the House of Representatives.— In the House of Representatives the lack of a quorum does not itself adjourn the House, because under the Constitution a smaller number may be authorized to compel the attendance of absent members. Under the ordinary rules fifteen members, including the Speaker, if there be one, may determine to compel the attendance of absent members. Moreover, the Constitution expressly provides that a smaller number than a quorum may adjourn from day to day, which takes from the Speaker the power which the English Speaker has to declare the House adjourned on his own count. For the same reason, probably, the rules of the House provide that the Speaker shall take the chair irrespective of the question of the presence of the quorum.
22. A Practical Suggestion.— All bodies which have the power to determine their own quorum after organization, and after the time and place of subsequent meetings have been fixed, or the method of calling other meetings has been determined upon, so as to avoid double meetings, should reduce the quorum, at least for ordinary business, below the majority. Such a course will be found much more convenient and just as safe.
23. Rule of the Majority.— Unless by organic law or by virtue of rules adopted by an assembly, the number required for an affirmative decision is increased above a majority, the majority rules. The general principle of decision is the natural one that the majority shall govern. Any increase in the requirement is of course in the interest of conservatism.
24. Unanimous Consent.— By unanimous consent an assembly may do anything which it is competent to do, and that notwithstanding any rule or regulation, or any provision of parliamentary law, to the contrary.
25. Election of Officers by Plurality.— Officers are sometimes, under a Special resolution, elected by a plurality of votes, as in the case of the election of N.P. Banks as Speaker of the Thirty-fourth Congress. But in this case the action of the minority had the antecedent sanction of the majority; that is, the majority had voted that whenever any member had a plurality of votes he should be Speaker, whoever he might be.