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be taken by it in the interim. It is therefore necessary to determine whether he had such power. The only authority relied on to sustain his action is section 36 of the constitution, which is as follows: "The 289 first general assembly, the members of which shall be elected under this constitution, shall meet on the first Tuesday after the first Monday in January, 1894, and thereafter the general assembly shall meet on the same day every second year, and its sessions shall be held at the seat of government, except in case of war, insurrection or pestilence, when it may, by proclamation of the governor, assemble, for the time being, elsewhere." At first blush it must strike anyone that the thing in the mind of the framers of this section was not an adjournment of the general assembly after it had assembled, but a provision for a place of assembling. Until an assembly is organized, it cannot control its movements; and in case of an insurrection or pestilence preventing it from meeting at the capitol it was necessary for some one to have power to name another place at which it might assemble for the time being, and organize. This seems, on its face, to be all the section was intended to provide for, and that it was not intended to authorize such action as was taken in this case is clear from section 80, which provides, among other things: "In case of disagreement between the two houses with respect to the time of adjournment, he [the governor) may adjourn them to such time as he shall think proper, not exceeding four months." From this provision it is clear that the governor had no power over the time of adjournment of the two houses, except in case of disagreement between them, There had been no disagreement between the two houses here, and, if the governor could have adjourned them from January ölst to February 6th, he might have made the time one month or four months, and then by a similar proclamation, adjourned them again, and indefinitely prevented action upon the contest. 200 It is also to be observed that while the constitution gives the governor power with respect to the time of adjournment in case of disagreement between the two houses, it confers upon him no such power to name another place than that in which the legislature may be sitting. Section 41 provides: "Neither house during the session of the general as. sembly shall, without the consent of the other, adjourn for more than three days nor to any other place than that in which it may be sitting.” Under familiar rules of constitutional construction, either house, by virtue of this section, may,
with the consent of the other, adjourn for more than three days or to any other place than that in which it is sitting. It was never intended by the constitution that the two houses might name a time or place of adjournment, and that the governor could also have like power; for this would be not only to create confusion, but to destroy the independence of the legislative branch of the government. By section 27, the powers of a government are divided into three distinct and independent departments, and by section 42 the regular sessions of the general assembly are limited to sixty legislative days. If the governor can, without its consent, adjourn it from time to time, or from place to place, as he may see proper, he might be able to prevent it from taking any action that he might be opposed to. The legislative branch of the government more nearly represents the people than any other branch, and it is charged by the constitution and laws of this state with many important interests directly affecting the people, to secure which their independence of the executive is absolutely necessary. Section 41, above referred to, is taken literally from the federal constitution. After showing that Congress is, with the single exception of a disagreement between 291 the two houses in respect of the time of adjournment, wholly independent of the President, Judge Story adds: “In no other case is the President allowed to interfere with the time and extent of their deliberations. And thus their independence is effectually guarded against any encroachment on the part of the executive”: Story on the Constitution, sec. 843. The reasons leading to the insertion of such a clause in the constitution of the United States and in all the constitutions of this state were the danger of executive control over
legislature, and the fact that the colonial governors exercised this power to destroy the effectiveness of the colonial legislatures. We are clearly of the opinion that the state constitution was intended to maintain the absolute independence of the legislative branch of the government; that the power claimed by the appellant Taylor is in conflict with both the letter and the spirit of the instrument, and that his attempt to adjourn the legislature from January 31st to February 6th was void, and did not interfere with the right of the legislature to proceed with its sessions at Frankfort.
2. As to the death of Goebel. The death of Goebel on February 3d did not affect the right of the appellee Beckham. If Goebel was elected governor and Beckham lieutenant-gov
ernor, in November, Beckham, upon Goebel's death on February 30, became entitled to the office of governor, and had the right to continue the contest to secure what the constitution guaranteed to him. So that, if the legislature had not acted until February 19th, it had a right then to act upon the contest, and its action would be none the less valid because not taken in Goebel's lifetime. But, as the legislative action of February 19th and 20th is assailed on substantially the same grounds as that on February 2d, this view of the case is not important, as 202 the question remains, Was either action valid? This brings us to the consideration of the third point.
3. As to the validity of the entries in the journal, and the effect to be given them. It is alleged that the journals are fraudulent, the work of a conspiracy between the clerks of the two houses, certain of the members, and the contestants, and that the facts shown by the journals as to the presence of the members of the two houses and the action taken by them, are untrue. The question is, therefore, Can the court hear evidence of this character assailing the integrity of the legislative journals? Section 40 of the constitution provides: "Each house of the general assembly shall keep and publish daily a journal of its proceedings; and the yeas and nays of the members on any question shall, at the desire of any two of the members elected, be entered on the journal.” The journal of each house of the general assembly, kept pursuant to this provision of the constitution under the supervision of the house, is, when approved by the house, not the act of the clerk, but the act of the house itself and is entitled to the same respect as any of its other official acts. So far as we have seen, the authorities are uniform that evidence cannot be received in court to impeach thie verity of the record provided by the constitution as evidence of the legislative proceedings. Thus, in Cooley's Constitutional Limitations, page 220, it is said: “And although it sometimes has been urged at the bar that the court ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegations were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. The reasons are the same here as those which preclude an inquiry into the 203 motives of the governor in the exercise of a discretion vested in him exclusively. He is responsible for his acts in such a case, not to the court, but to the people.
In Wright v. Defreese, 8 Ind. 298, which was a quo warranto proceeding, involving the exercise of a franchise under an act of the general assembly, it was alleged that the act was secured by fraud, corruption and bribery. The court refused to hear the evidence. It is said: "The powers of the three departments are not merely equal. They are exclusive in respect to the duties assigned to each. They are absolutely independent of each other. It is now proposed that one of the three powers shall institute an inquiry into the conduct of another department, and form an issue to try by what motives legislators were governed in the enactment of a law. If this may be done, we may also inquire by what motives the executive is induced to approve a bill or withhold his approval, and, in case of withholding it corruptly, by our mandate compel its approval. "To institute the proposed inquiry would be a direct attack upon the independence of the legislature, and a usurpation of power subversive of the coustitution.” A similar question was presented in McCulloch v. State, 11 Ind. 424, where not only fraud, corruption and bribery were alleged, but also that one member of the assembly, whose vote was recorded in the affirmative, in fact voted in the negative, and that without his vote the bill did not receive a constitutional majority. The court said: "The facts thus alleged raise the question whether the journals of the houses of the general assembly can be contradicted or impeached on the ground of mistake or fraud. The affirmative of this inquiry cannot, in our opinion, be maintained. Article 4, section 12 of the constitution requires each house to keep ,
a journal of its proceedings, 204 and publish the same.
This journal must be held conclusive evidence of the facts which appear on its face, because it must be presumed that the members, as a body, inspected it, and made all necessary corrections, before they allowed it to assume the character of a journal of their proceedings. As well might evidence be received to contradict a statute, to show that it contained certain provisions inserted through mistake, as to contradict an entry made upon the journal. The house keeping the journal is the only tribunal by which it can be corrected, and, until corrected by such authority, it must be considered conclusive as to the facts which it contains: State v. Moffitt, 5 Ohio, 358; Turley v. Logan Co., 17 Ill. 151. We must, therefore, hold that the members alleged to have been absent when the bill passed over the governor's veto were present and voted as averred in the journal, and that McMurray did vote in favor of
the bill on its final passage in the house.” In the case of State V. Moffitt, 5 Ohio, 358, above referred to, the question was whether Lemuel Moffitt had been elected judge of the common pleas court by the general assembly. The senate journal showed his election by the senate but the house journal showed the election of Samuel Moffitt. Depositions from members and officers of the general assembly were offered to prove that Lemuel and not Samuel Moffitt was the individual actually voted for and elected in the house, but the court held the evidence inadmissible to impeach the journal, and that Lemuel was not entitled to the office. The court said: "In the ninth section and first article of the constitution it is required that each house shall keep a journal of its proceedings and publish them. This journal, when taken in connection with the 29.5 laws and rez. olutions, would seem to be the appropriate evidence of legislative actions. It is not the action of a single member of the legislature of which I speak, but of the whole body of the general assembly. The former might, with propriety, be proven by parol testimony, but the latter is evidenced by evidence of a higher nature. The testimony of an individual member could not be received to contradict a statute, and, if not, why receive it to contradict an entry upon the journal?” In Wise v. Bigger, 79 Va. 269, it was alleged that only nineteen senators Foted aye on the passage of the bill, and that it did not receive, in fact, the affirmative vote of two-thirds of the senators present, and never became a law, although the contrary appeared on the Senate journal. The court said: “In the face of this solemn record, in which the senate of Virginia certifies its proceedings, in a matter of fact, relating to its own conduct, in the apparent performance of its legal functions, this court is asked to inquire into or dispute the veracity of that certificate. To do this would be to violate both the letter and the spirit of the constitution; to invade a co-ordinate and independent department of the government, and to interfere with the separate and legitimate power and functions of the legislature.” In a similar case the supreme court of Pennsylvania also said, where fraud and corruption were charged on the legislature, and the court was asked to hold its action void for this reason : "We cannot hesitate a moment on this question. We have no such authority, and ought not to have. However far the legislature may depart from the right line of constitutional moral. ity, we have no authority to supervise and correct their act on the mere ground of fraudulent or dishonest motives. We know