Page images
PDF
EPUB
[ocr errors]

ing officers of the two Houses of the Legislature, that three-fifths of the
members, the constitutional majority, were present at the passage of
a bill, may be supported by parol evidence, on the theory that the cer-
tificate is only presumptive evidence of the fact. It is perceived that
this is tantamount to holding that parol evidence may be heard for the
purpose of sustaining the validity of a statute.

In considering this question the courts have had to determine, first,
whether they would go behind the fact of the enrollment of the bill in
the office of the Secretary of State. Some of them, proceeding with a
just delicacy in regard to the faith and credit which is to be given to
the acts of a co-ordinate branch of the government, have held that they
would not look beyond the fact of the signing and enrollment of the
bill. The meaning of this is that the presumption which springs from
the fact of the bill being signed and enrolled is conclusive, and that the
courts will not look either to the journals of the Houses of the Legisla-
ture, or hear any evidence for the purpose of overthrowing that pre-
sumption. Other courts have held that it is competent for the courts
to go behind the official enrollment and publication of a statute, and
look to the journals of the two Houses of the Legislature, for the purpose
of ascertaining whether the statute was passed in conformity with the
requirements of the constitution, and that they may declare it to be no
law if they find that it was not so passed.3

1 People v. Chenango, 10 N. Y. 317.

2 Whited v. Lewis, 25 La. An. 568; Danielly v. Cabiniss, 52 Ga. 211; Territory v. Clayton, 5 Utah, 598; . c. 18 Pac. Rep. 628; Exp. Wren, 63 Miss. 512 (overruling Brady v. West, 50 Miss. 68); Jones v. Hutchinson, 43 Ala. 721; Commonwealth v. Jackson, 5 Bush (Ky.), 680; Evans v. Browne, 30 Ind. 514; Paine v. Lake Erie &c. R. Co., 31 Ind. 283; Broadax v. Groom, 64 N. C. 244 (private act); Usener v. State, 8 Tex. App. 177 (overruled by Hunt v. State, 22 Tex. App. 399); People v. Commissioners of Highways, 54 N. Y. 276; Ryan v. Lynch, 68 Ill. 160. Compare Jordan v. Wapello Circuit Court, 69 Iowa, 177; 8. C. 28 N. W. Rep. 548.

3 Hunt ». State, 22 Tex, App. 396 (disapproving); Blessing v. Galveston, 42 Tex. 641; Usener v. State, 8 Tex. App. 177; State v. Robinson, 20 Neb.

96 (journals made competent evidence
by statute); State v. Brown, 20 Fla.
407; Brown v. Nash, 1 Wyo. Ter. 85;
Berry v. Baltimore &c. R. Co., 41 Md.
446; Post v. Supervisors, 105 U. S.
667; Smithee v. Garth, 33 Ark. 17;
Osburn v. Stanley, 5 W. Va. 85;
Gardner v. The Collector, 6 Wall.
(U. S.) 499; Ryan v. Lynch, 68 Ill. 160
(statute held not void because not
read on three different days in the
Senate and not passed by a vote of the
ayes and noes); Smith v. Campbell,
41 Ark. 471 (statute held void because
never formally passed by the Senate).
It is competent for the Supreme Court
of Missouri to examine into the sulli-
ciency of the preliminary proceedings
of the General Assembly, in order to
determine the validity of an amend-
ment of the constitution. State v.
McBride, 4 Mo. 303. The journals of

با

[ocr errors]

But even under this rule, the courts will indulge in every reasonable presumption in support of the validity of an act of the Legislature, which has been duly authenticated, enrolled and published. Thus, the publication of an act in the volume of session laws of the year, verified by the Secretary of State creates a presumption that it became a law pursuant to constitutional requirements. The courts must receive a law, so published, as having been duly passed, unless the contrary is clearly made to appear. In favor of the regularity of the passage of a law, the courts will, if necessary, presume that a motion to reconsider prevailed ; 3 that it was duly referred to the appropriate committees ; 4 and that it was passed by a majority of all the members elected, where that is the constitutional requirement. They will presume, in the silence of the record, that it received the constitutional majority, where the record shows that it was signed in open session, and that it was read three times on three different days, as required by the constitution, although this involves a presumption that a rule was suspended by the requisite two-thirds vote.8 It is but a different expression of this rule to say that the courts will not declare that a published statute is not a valid law, from the mere fact that the journals of the Legislature fail to show a strict observance of the formalities prescribed by the constitution for the enactment of laws.9 In line with this view, another court has reasoned that it must clearly appear that it was not enacted.10

When the fact of the passage of an act over the Governor's veto appears from the published journals of the Legislature, its validity cannot be questioned because of the failure of the clerk of the House and secretary of the Senate to certify to its passage before termination of their official functions. 11 As to mistakes in enrolled laws, it seems to be a sound view that if it clearly appear, from all the sources of interpre

Houses of the Legislature, though not
evidence of the meaning of a statute,
are admissible to identify a bill re-
ferred to in a subsequent act. South-
wark Bank v. Commonwealth, 27 Pa.
St. 446.

1 Bound v. Wisconsin Central R.
Co., 45 Wis. 543.

· Hensoldt v. Petersburg, 63 Ill. 157.

3 State v. Algood, 87 Tenn. 163; 8. c. 10 S. W. Rep. 310.

* Dayland &c. Co. v. State, 68 Tex. 526; 3. c. 4 S. W. Rep. 865.

5 People v. Chenango, 10 N. Y. 317.

6 Williams v. State, 6 Lea (Tenn.), 549.

7 State v. Illinois Central R. Co., 33 Fed. Rep. 730: Glidewell v. Martin, 51 Ark, 559; 8. c. 11 S. W. Rep. 882.

8 State v. Peterson, 38 Minn. 143; 8. C. 36 N. W. Rep. 443; State v. Oleson, 38 Minn. 150; State v. Sannerud, 38 Minn. 229.

9 Ştate v. Mead, 71 Mo. 266; Blessing v. Galveston, 42 Tex. 641.

10 State v. Brown, 20 Fla. 407.

11 Houston &c. Co. v. Odum, 53 Tex. 343.

tation, that a provision of a statute was inserted through inadvertence, it will be disregarded.1 In each of the cases just cited the statute was upheld. In the Opinion of the Justices, the Justices of the Supreme Court of New Hampshire having been called upon, presumably under the constitution of that State, by the Governor and Council, for their opinion as to whether what purported to be a certain statute which had been published by authority as one of the public statutes of the State, was in fact such a statute or not, they held that the journals of the two Houses of the Legislature were in the nature of public records, and were evidentiary documents to be looked to in deciding the question; and, upon an inspection of those journals, finding that the bill for the statute in question had passed the House and been sent to the Senate, and that it had been returned by the Senate to the House as passed by the Senate, but with an amendment, and finding on the journal of the House no evidence that the House had concurred in this amendment, the Justices advised the Governor and Council that the statute was not a law of the State.3 In a subsequent Opinion of the Justices,4 the doctrine of this preceding opinion was affirmed on all its points; and the syllabus, by the very learned and able reporter, the late John M. Shirley, expresses the conclusion of the court in both cases, which is the doctrine of many other American courts, as follows: When an act is found lodged in the office of the Secretary of State, with other public acts passed at the same session, signed by the speaker of the House of Representatives and the president of the Senate, and approved and signed by the Governor, and published by authority as one of the public statutes of the State, that constitutes

i Pond v. Maddox, 38 Cal. 572. 2 35 N. H. 579. Compare Jones v. Hutchinson, 43 Ala. 3 In this decision, as stated in a 721; Walnut v. Wade, 103 V. S. 683 subsequent note by the reporter of the (word dropped from title while on its

court, 52 N. H. 622, “ before the conpassage); Williams v. State, 6 Lea sultation,an elaborate opinion had been (Tenn.) 549 (mistake in the number prepared by one of the members of of the bill); Dow v. Beidelman, 49 the court, reviewing at length all the Ark. 325; 8. c. 5 S. W. Rep. 297 (mis- authorities, from the days of Hobart take in enrollment discovered after

and Strange, which patience and indusadjournment and corrected); Ayers v. try could collect. This opinion was Trego, 37 Kan. 240; 8. c. 15 Pac. Rep. read in consultation, the authorities 229 (irregularities of title as shown by were carefully considered, the opinthe house journal); State v. Robert ions of the judges were taken seriatim, son, 41 Kan. 200; 8. 6. 21 Pac. Rep. and the court were united." 382 (discrepancies as shown by house 4 52 N. H. 622. journal – correction of omission not appearing).

[merged small][merged small][ocr errors][ocr errors][ocr errors]

prima facie evidence that said act received the assent of the two branches of the Legislature, and the approval of the Governor, in the manner required by the constitution, to make it a valid statute of this State. But the journals of each branch of the Legislature are to be considered and treated as authentic records of the proceedings of the Legislature, and they may be resorted to in such cases to ascertain whether the two Houses in fact concurred in the passage of any specified act; and if it appears by the journals that both Houses did not concur,

the prima facie evidence derived from an examination of the act itself will be overcome, and the act will be held to be invalid, and of no effect as a law.” And the court accordingly, finding that the statute in respect of which its opinion had been asked by the Governor and Council, had not received the assent of the House of Representatives, advised that it was no law. The Supreme Court of Oregon, following substantially the same doctrine, have held that when it affirmatively appears from the journals of the Legislature that a bill, as filed in the office of the Secretary of State, did not in fact pass the Legislature, the courts will pronounce it invalid. But they also hold that every reasonable presumption is to be made in favor of legislative proceedings; so that whep the constitution does not require certain matters to be entered in the journal, the absence of such a record will not invalidate what purports to be a statute. In a previous decision the same court proceeded upon the same doctrine, thus expressed in the reporter's syllabus: “Where a bill has been regularly enrolled, signed by the presiding officers of the two Houses of the legislative assembly, and filed with the Secretary of State, approved by the Governor, it will be held a valid law, unless the journal of one of the Houses affirmatively show that some condition imposed by the constitution on the enactment of laws has not been observed.” In other words, judicial courts will judge the acts of the Legislature by its record, just as the acts of the court are judged. In the particular case a statute was declared inoperative which had been upon the statute books and acted upon by the courts and people of Oregon for seven years, on the ground that the Senate journal showed that, on the final vote upon the passage of the bill, it did not receive the constitutional majority, and so the bill failed to pass.” 2

[ocr errors][ocr errors][ocr errors][ocr errors]

1 State o. Rogers, 22 Ore. 348, 364.

9 Currie v. Southern Pacific Co., 21 Ore. 566. The opinion in this case was written by Chief Justice Strahan, said to have been the ablest judge that ever sat in Oregon, but it was weak

ened by the fact that Mr. Justice Bean concurred, but “ with some hesitation; and that Mr. Justice Lord

expressed no opinion, but reserved his judgment.”

It thus appears that, although the course of decision concerning the evidence upon which alone the courts will act in determining whether a given document is or is not a public statute, duly enacted, restrains the courts to the journals of the two Houses and prohibits them from looking beyond these records,- yet this is only a rule of procedure ; it is not a rule of jurisdiction. But while the courts have no power to make their own rules of jurisdiction, that is to create for themselves a jurisdiction which has not been conferred upon them by the constitution and laws, -- yet they have the power to create their own rules of procedure; and whenever they have made rules of procedure which are inadequate for the purposes of justice, they have the power to unmake them or to modify them. It is, therefore, plainly within the power of the courts of judicature to refuse to give effect to a forgery as a statute, and inci dentally to inquire, upon such evidence as will assist them in arriving at the real truth, whether a document propounded as a statute is or is not what it purports to be.

INTERVENTION OF THE UNITED STATES IN THE CALIFORNIA RAILROAD) COMMISSION CASE.— Since our note on the subject of the suit in the Circuit Court of the United States for the Northern District of California, to enjoin the railroad commissioners of that State from reducing the rates of freight charges on the Southern Pacific Company and their leased lines, a new and very important turn was taken in the case, in the form of an intervention by the United States, praying for an injunction against the enforcement of the rates so fixed. In other words, the United States joined hands with the Southern Pacific Company, the complainant in the case, to all intents and purposes. Argument was had on the right of the United States to intervene, and the question was speedily decided in favor of that right. The action of the United States Attorney for the Northern District of California was taken without special authorization from the Attorney-General, but was within the general powers granted to the former officer. It is needless to say that public opinion in California almost unanimously condemned this move on the part of the United States District Attorney, an i statements were freely made in the California lay press to the effect that the bill of intervention had been concocted in the law office of the Southern Pacific Company. It is believed that the newspapers had no ground whatever for such a charge, though there are things on the face of the bill of intervention which give color to the idea of a concert of action in respect of it between the law officers of the United States

« PreviousContinue »