« AnteriorContinuar »
take from the act as published, but ap. state without objection thereto within peared in the original bill. The court, upon thirty days, and the court held that it did examination of the enrolled bill, found this not become a law. not to be so, and added : "This enrolled In Miller v. Oelwein, 155 Iowa, 706, 136 bill, thus filed and preserved in the secre- N. W. 1045, it was declared that “the entary's office, is the authenticated copy of rolled bills duly signed and deposited with the real bill which the general assembly the secretary of state constitute the ultipassed, and is the ultimate proof of the mate proof of their regular enactment, and true expression of the legislative will, as behind them it is impossible for any court this court have before held. Clare v. State, i to go for the purpose of ascertaining what 5 Iowa, 510. And that for the obvious the law is." reason that it is the bill which received the Duncombe v. Prindle, supra, and Collins signatures of the officers of both branches of v. Laucier, 45 Iowa, 702, were cited, and althe legislature, after a committee appointed so Western U. Teleg. Co. v. Taggart, 141 for that purpose had compared it with the Ind. 281, 60 L.R.A. 671, 40 N. E. 1051. law as passed, and reported it a correct But later on this was added: The "mere copy of the same. Behind this it is im- failure of the journals to show compliance possible for any court to go for the purpose with the requirements as to the method of ascertaining what the law is. There is of enacting a law will not be conclusive that no other bill, original or a copy, to which such requirements were not complied with” the signatures of the president of the senate -citing Leavenworth County v. Higginand speaker of the house of representatives botham, 17 Kan. 62. are affixed, or to which is appended the ap- In the recent case of Conly v. Dilley, 153 proval by the governor. And when counsel Iowa, 677, 133 N. W. 730, the contention speak of some other original bill than this, was that the two houses did not adopt the in which the township 90 was embraced, we same bill, in that in passing the house it confess we are at a loss to conceive what included two amendments omitted by the they mean. Are we to suppose that the senate, and, among other things, the court enrolling clerk, and the committee appoint-observed that “in the first place, it is exed to examine and report upon the accuracy tremely doubtful if the courts can properly of his work, have all been guilty of laches go behind the enrolled bill to scrutinize the or corruption, especially in the absence of details of its legislative history for grounds any competent proof to that effect?”
upon which to hold it invalid.
Clare v. Though not involved in Koehler v. Hill, State and Duncombe v. Prindle, supra; 36 60 Iowa, 543, 14 N. W. 738, the court in Cyc. 971. It may be held that if the record the course of its opinion observed that “in- affirmatively disclosed the adoption of an asmuch as a bill, before it becomes a law, amendment which does not appear in the must be signed by the presiding officers of enrolled bill, or that such bill did not rethe two houses and by the governor, as will ceive a constitutional majority of either be assumed, we may, for the purposes of this house, or other vital defect of that nature, case, concede, when it has been enrolled and the court would not be bound to accept the so signed and deposited in the office of the enrolment and publication of an alleged secretary of state, it is the ultimate and statute as a finality; but we are here asked conclusive evidence of the contents of the to go very much farther than the suggested bill which passed the general assembly, case, and to presume that the house did and that it cannot be contradicted by the adopt certain amendments of which there journals, because there is no constitutional is not the slightest record, except of the provisions requiring that it shall be en- fact that they were recommended by a comtered on the journals."
mittee. The fact that the journal does not And further on at page 563, of 60 Iowa, show what was done with these amendit was said: “For fear we may be misun-ments may afford good ground to criticize derstood, we will repeat that, when a bill or the manner of keeping the record; but we joint resolution is required to be signed by know of no rule of law or reason by which the presiding officers and the governor, and we can presume they were adopted by the it is so signed, it will be conceded that such house." bill or resolution constitutes the ultimate It will be noted that the point under conand conclusive evidence of the contents sideration was not involved in any of those thereof."
cases, but it was covered by what was said In Darling v. Boesch, 67 Iowa, 702, 25 in Duncombe v. Prindle, supra, and that N. W. 887, the bill was presented to the decision is generally cited in opinions holdgovernor for his approval during the lasting that the enrolled bill in office of the three days of the session of the general secretary of state, when properly attested, assembly, and he did not sign it and merely is conclusive evidence of its enactment, and, deposited it in the office of the secretary of even though what was said in other deci. sions be dicta, these indicate the trend of exacted in the passage of a bill also required thought of those concurring therein. More to be preserved? The Constitution noover, upon an examination of the conflicting where requires the bill to be made of record. authorities, we are inclined to the opinion | Aside from entering the yeas and nays on that this construction has the better reason, the journal on final passage, no record exfor its support. There is quite enough un- cept the enrolled bill duly authenticated certainty as to what the law is without is exacted by the fundamental law, and as saying that no one may be certain that an the legislature is a co-ordinate branch of act of the legislature has become such un- the government, in no sense inferior to the til the issue has been determined by some other branches, and equally bound by oath court whose decision might not be regarded of obedience to the Constitution, we peras conclusive in an action between other ceive no reason for not regarding its final parties. Regardless of the good faith of a record as embodied in such enrolled bill, person or officer relying on the enrolled bill authenticated as required by $ 16 of article in the office of the secretary of state, this 3 of the Constitution, as absolute a verity would afford no protection from the con- as the judgment of a court. Of course, a sequence of his acts if it should turn out judgment may be attacked, but not collaterthat the journals or other evidence dis- ally, and that is the only way an enrolled closed fatal defects in its passage. One be- bill may be assailed. lieving that he were complying with the Each of the three departments of our law might be unwittingly committing a government is equal, and each should be crime, or an officer paying out money in responsible to the people whom it represupposed obedience to a statute might dis- sents. The legislature enacts laws, and is cover too late that the enactment he under commanded by the Constitution to enact took to obey had not been adopted in the them in a certain way. The executive manner prescribed by the Constitution, ac- enforces the laws, and by the Constitution cording to record of clerks, though the it is made his duty to take certain steps legislators were proceeding under solemn looking toward such enforcement in the oath of obedience to the fundamental law. manner prescribed therein upon the hapIt seems quite enough that the average citi pening of certain contingencies. The judizen must take notice of the contents of the cial department is charged with the duty enrolled bill when duly authorized, sub- of interpreting the laws, adjudging rights sequent to July 4th after passage, without and obligations thereunder. Such being the also putting upon him the burden of ascer- respective duties of the several departments, taining the condition of the journal of the it would seem that, when certified to have respective houses bearing thereon, and de- been performed as required by the Constitermining for himself the effect of any ir-tution, this should be conclusive on the regularity therein tending to invalidate the other departments, and there would seem no bill. Courts could not rely upon the pub- more impropriety in the legislature seeking lished session laws, but would be required to go behind the final record of a court to to look beyond these to the journals of the determine whether it had obeyed some prohouse and senate, and often to any printed vision of the Constitution in making such bills or amendments which might be found record, than there would be in the courts after the adjournment of the general as seeking to go behind the final record made sembly. Otherwise, after relying on the by the legislative department. Where the prima facie evidence of the enrolled bills, executive is charged with taking certain authenticated as exacted by the Constitu- things upon contingencies happening, and is tion, for years, it might be ascertained from given no power to act except upon such the journals that an act theretofore en contingency, if he determined that the conforced had never become a law. The incon- tingeney exists and acts in pursuance therevenience of such a rule and the consequent of, the courts will not inquire into the fact confusion are a strong argument against its | as to whether he decided correctly in deadoption. What is the design of exacting termining the existence of the contingency. the signing of the enrolled bills by the pre- Indeed, to preserve the harmony of our siding officers of the two houses and the form of government, these mandatory pro: approval of the governor, and that they be visions must be considered as addressed to deposited with the secretary of state? Is the department which is called upon to perit not that these are the final records of the form them, and neither of the other departacts of the legislature for the information ments will be permitted in any manner to and guidance of other departments of gov- coerce that department into obedience thereernment? If so, why should they not be to. Those courts which uphold the inquiry accorded the respect usually accorded sol- as to whether the legislature has observed emn records? If merely steps in the en- the mandatory provisions of the Constiartment of laws, why are not other matters 'tution necessarily assume that it is safer
to intrust the enforcement of these to the Constitution itself. If it may, then, for the judicial department than the legislature, same reason it may go beyond the journal, and that the judicial department is the when that is impeached; and so the validity only one in which sufficient integrity ex- of legislation may be made to depend upon ists to insure observance of the provisions the memory of witnesses, and no man can, of the Constitution. Such attitude in fact, know the law, which he is bound seems intolerable, and not to be endured. to obey. Such consequences would be a It is sometimes said that the courts assume large price to pay for immunity from the superiority over the legislature in deter- possible abuse of authority by the high cffimining that an act violates a provision of cers who are, as we think, charged with the the Constitution. This is not so, however, duty of certifying to the public the fact for they merely undertake to determine that a statute has been enacted by compewhether an act of the general assembly is , tent houses. Human governments must rein conflict with the Constitution, and, if it pose confidence in officers. It
be is, the statute necessarily must yield, for abused, and there may be no remedy. Nor that the Constitution has a sanction great is there any great force in the argument er than can be given by the action of any which seems to be regarded as of weight by department of state.
some American courts, that some important "Upon principle then, in view of the divi- provisions of the Constitution would be a sion into departments under our form of dead letter if inquiry may not be made by government, each of equal authority, one de- the court beyond the rolls. This argument partment cannot rightfully go behind the overlooks the fact that legislators are sworn final record certified to it or to the public to support the Constitution, or else it asfrom either of the other departments. And sumes that they will wilfully violate that the judicial department is no more justi- I oath. It is neither modest nor just for fied in going behind the final act of the leg- judges thus to impeach the integrity of anislature to see if it has obeyed every man- other department of government, and to datory provision of the Constitution than claim that the judiciary only will be faithis the legislature to go back of the final | ful to its obligations.” record made by the courts to see whether It is also to be observed that the manner or not they have complied with all the con- of keeping the journal, by either the house stitutional requirements."
State ex rel.
or senate, is not prescribed in the ConstiReed v. Jones, 6 Wash. 452, 23 L.R.A. 340, tution. Nor does it require that the acts 34 Pac. 201.
finally passed shall be preserved in any What was said in Evans v. Browne, 30 form or place other than as enrolled bills Ind. 514, 95 Am. Dec. 710, is especially authenticated as exacted therein and depertinent: “It is argued that, if the au- posited with the secretary of state.
In thenticated roll is conclusive upon the State ex rel. Reed v. Jones, supra, the court, courts, then less than a quorum of each in reverting to this matter, said: “The enhouse may, by the aid of corrupt presiding rolled acts are prepared with some care, oficers, impose laws upon the state in de and, under the rules of our legislature, and fiance of the inhibition of the Constitution. of every legislative body of which we have It must be admitted that the consequence any knowledge, some committee is charged stated would be possible. Public authority with the responsibility of seeing that such and political power must, of necessity, be enrolled bills are compared with the one confided to officers, who, being human, may which actualy passed the legislature before violate the trusts reposed in them. This, they are presented to the presiding officer perhaps, cannot be avoided absolutely. But for signature. There is therefore some proit applies also to all human agencies. It tection thrown around these enrolled acts, is not fit that the judiciary should claim and it would be a difficult matter for anyfor itself a purity beyond others, nor has it one through carelessness or fraud to prebeen able at all times with truth to say vent the will of the legislature, as expressed that its high places have not been disgraced. in the bill actually passed, being embodied The framers of our government have not in the enrolment thereof. But, if the docconstituted it with faculties to supervise co trine be once established that the fact that ordinate departments, and correct or pre- such bill had passed can be negatived by vent abuses of their authority. It cannot the journal, there would be very little to authenticate a statute; that power does not prevent a bill which had been properly belong to it; nor can it keep the legislative passed being defeated by the carelessness or journal. It ascertains the statute law by fraud of the journal clerk or some employee looking at its authentication, and then its under him. Under the practice prevailing function is merely to expound and ad- in the legislature of this state, and in most minister it. It cannot, we think, look be of the other states, there is very little ag. yond that authentication, because of the surance that the journal will fully and accurately show the proceedings of the body, ernment which has as its basis the equal for which it is kept. The practice in nearly authority of the three departments into all such bodies is to have the journal read, which it is divided.” if read at all, from loose slips of paper, made In Pacific R. Co. v. The Governor, 23 up partly in writing and partly by pasted Mo. 353, 66 Am. Dec. 673, in considering slips, and, after being thus read, ordered this subject, the court, speaking through approved. It is also a fact of which every Scott, J., said: “If the legislature exceed one has knowledge that often upon such its powers in the enactment of a law, the reading there is such inattention on the courts, being sworn to support the Constipart of the members of the legislature that tution, must judge that law by the standgross errors might pass unnoticed. The ard of the Constitution, and declare its vajournal as thus read and approved from lidity. But the question whether a law on loose slips of paper is then passed to the its face violates the Constitution is very difjournal clerk, and by him, or under his di- ferent from that growing out of the nonrection, transcribed into a book, and the compliance with the forms required to be slips then carelessly preserved or entirely observed in its enactment. In the one case, destroyed. The transcription of these min. a power is exercised, not delegated, or which utes, without any further action on the part is prohibited, and the question of the validof the legislature, or of any person but the ity of the law is determined from the lanone who makes it, except superficial exami-guage of it. In the other, the law is not, in nation by the journal clerk, and possibly by its terms, contrary to the Constitution; on the presiding officer, becomes the formal | its face it is regular, but resort is had to journal. It follows that the chances of mis- something behind the law itself in order to take are very great, and for fraud upon the ascertain whether the general assembly, in part of the copyist even greater. The Con- making the law, was governed by the rules stitution requires that there should be a prescribed for its action by the Constitumajority of the body recorded as voting in tion. This would seem like an inquisition favor of a bill upon its final passage. Upon into the conduct of the members of the gensuch passage the bill in fact receives one eral assembly, and it must be seen at once or two more than such constitutional ma
that it is a very delicate power, the frejority, and is duly passed; but if by care- quent exercise of which must lead to endlessness or fraud the copyist should change less confusion in the administration of the one or two of the names of those voting, law. This inquiry may be extended to good from the affirmative to the negative, the as well as to bad laws,-to those passed as will of the legislature, regularly expressed, well with the approval of the governor, as to would be defeated. And the same result those which are passed his objections to the might follow if in copying he should omit a contrary notwithstanding; for it is clear name. Not only would such results follow that, if a law passed over the objections of in the cases specified, but in many cther the governor may be impeached by inquirways the least error in making up or tran- ing whether the forms of the Constitution scribing the journal might result in the de- were observed in its enactment, the same feat of the will of the legislature. Unless inquiry may be instituted in relation to the method of keeping journals should at laws passed with his sanction, and thus once be revolutionized, and so much atten- statutes, constitutional on their face, regution be paid to them that they will be made lar in their terms, which may have been the to absolutely represent all the doings of rules of action for years, and under which the body to such an extent as to very much large amounts of property have been vested, prolong the sessions of the legislature, the and numerous titles taken, may be abrogatsanctity of legislative enactments will be ed and declared void. A principle with such entirely dependent upon the carefulness and a consequence should be supported by a good faith of some copyist employed by the weight of authority which no court can relegislature at a few dollars a day. Much sist. When we reflect on the manner in less evil will grow out of a course of de which the journals are made up, and the cision which will give the people to under- rank of the officers to which that duty is stand that the legislative is a department intrusted, how startling must the proposiof the government of as high authority as tion be that all our statute laws depend the judicial, and that with the mandatory for their validity on the journals of the provisions directed to it, the other depart-two houses of the general assembly showments of the government have no concern. ing that all the forms required by the ConWhen this is once well understood, the stitution to be observed in their enactment people will see to it that such mandatory have been complied with. The required provisions are complied with by the legis- forms may be observed, and the clerks may lature, or, if they do not, the blame must fail to make the necessary or correct entry. rest upon themselves or the system of gov. ' If the journals had been designed as the
evidence in the last resort that the laws | to be seen whether there is anything in our were constitutionally passed, would not constitution or laws requiring or authorizsome method have been adopted by which ing a departure from the common-law rule. greater care would have been exacted in
When we once depart from principle, entering the proceedings of the two houses? -from a sound rule of law,-where shall Would the task of making them have been we stop? Do not the circumstances of this intrusted to a single clerk, with a power in case open to our vision a vista of absurdithe houses to dispense with their reading, ties into which we shall stumble if we ateven should there be a rule requiring them tempt to explore forbidden fields for evito be read,-a matter, however, about which i dence of a vague, shadowy, and unsatisfacthe Constitution and laws are silent? In tory character upon which to overthrow that country from which we borrow so the enrolled statutes of the land? In this many of our ideas respecting government case, the enrolment, the record of the statand laws, and whose common law and early ute, exists, and we are satisfied that we statutes constitute the substratum of all') should not look beyond it, certainly not beour systems of jurisprudence, the statute yond the record aided by the journals, and roll is the only and exclusive evidence of looking at both, we must hold the entire act what the statute law is, so long as it is in to be a valid law." existence. Then it is maintained that, if This decision was followed in Yolo Counthe journal were every way full and perfect, ty v. Colgan, 132 Cal. 265, 84 Am. St. Rep. yet it hath no power to satisfy, destroy, or 41, 64 Pac. 403, though its author, since a weaken the act, which, being a high record. judge of the United States circuit court, afmust be tried only by itself,-teste meipso. terwards seems to have raised some doubt
So it appears that by the common as to its correctness in San Mateo County law the statute roll was the absolute and v. Southern P. R. Co. (C. C.) 8 Sawy. 238, conclusive proof of a statute. This record 13 Fed. 722. could not be contradicted. It implied ab- The question was exhaustively considered solute verity. There was no plea by which in State ex rel. Pangborn v. Young, 32 N. J. the existence of a statute could be put in L. 29, where, among other things, the court issue. Under this state of the law our Con- said [in 10 Nev. 182, 21 Am. Rep. 721]: stitution was adopted."
“For whoever engages in any transaction the In Sherman v. Story, 30 Cal. 253, 89 Am. validity or construction of which depends Dec. 93, will be found a review of the au- upon statutory provisions, whoever holds or thorities up to that time; the court conclud acquires any sort of property or right, the ing that “the result of authorities in Eng. title or enjoyment of which may be affectland and in the other states clearly is that ed by the operation of any law, is bound to at common law, whenever a general statute take notice, at his peril, what the law is. is misrecited, or its existence denied, the And it is not enough for him to know what question is to be tried and determined by the law is after a court of last resort has the court as a question of law; that is to made an investigation and determined what say, the court is bound to take notice of it, part of the statute roll is to stand and what and inform itself the best way it can; that part to fall, but he must know in advance there is no plea by which its existence can of litigation, and govern his conduct acbe put in issue and tried as a question of cordingly. If there is any record or docufact; that, if the enrolment of the statute ment outside of the statute roll to which a is in existence, the enrolment itself is the court will resort for the purpose of testing record, which is conclusive as to what the the validity of an enrolled law, he must not statute is, and cannot be impeached, de overlook it. If a court will hear oral testistroyed, or weakened by the journals of mony to impeach the record, he must be Parliament or any other less authentic or able to conjecture in advance what the testiless satisfactory memorials; and that there mony will be, and what weight will be alhas been no departure from the principles lowed to it. Considering the exigency of of common law in this respect in the United this rule, it is easy to perceive of what ex. States, except in instances where a depar- treme importance it is that there should ture has been grounded on, or taken in pur- be some high, authentic, and unquestionable suance of, some express constitutional or record to which not only courts and public statutory provision requiring some relax. | officers, but private citizens, may resort, and ation of the rule, in order that full effect by a simple inspection determine for themmight be given to such provisions; and in selves with infallible certainty what are the such instances the rule has been relaxed by statutes of the state, and what are their judges with great caution and hesitation, terms. Considerations such as these had and the departure has never been extended led to the firm establishment in England, beyond an inspection of the journals of at a date anterior to American independboth branches of the legislature. It remains ence, of the maxims that matters of public