CHAPTER II. THE LEGISLATURE, AND THE ESSENTIAL PARLIAMENTARY PROCEDURE. § 26. The legislature. 27. Common-law record of legisla- 28. Our legislative record. 35. Same in Louisiana, etc. 36. Evidence of statutes in New York; Indiana. § 41. Constitutional regulations of procedure, where mandatory. 42. Legislative journals and files are evidence. 46. Presumption in favor of valid- 49. Required reading of bills. 52. How validity of statutes tried. § 26. The legislature. It is a primary requisite to the enactment of laws that there be a legal legislature. In time and place the members entitled so to do must lawfully convene.1 The American legislature, acting under written constitutions, can only exercise a delegated power. It must keep within the limits of power granted to it and observe the directions as to membership, the time of meeting and length of its sessions, procedure in its deliberations, the number of votes necessary for any purpose, and the making of its records. When convened in extra session and limited by the constitution to business for which the session was specially called, all acts passed relating to other subjects will be void.? If the constitution prohibits the introduction of bills after a certain period in a session, the regulation cannot be evaded by substituting new measures by amendment of pending bills.' 1 Tennant's Case, 3 Neb. 409; State v. Judge, 29 La. Ann. 223; Macon, etc. R. R. Co. v. Little, 45 Ga. 370; Gormley v. Taylor, 44 Ga. 76. See Rohrbacker v. Jackson, 51 Miss. 735; People v. Hatch, 33 IIL 9, 151. 2 Davidson v. Moorman, 2 Heisk. 575; Jones v. Theall, 3 Nev. 233. See Speed v. Crawford, 3 Met. (Ky.) 207. 3 Pack v. Barton, 47 Mich. 520; Powell v. Jackson, 51 id. 129. See Sayre v. Pollard, 77 Ala. 608. But whatever is within the proper scope of amendment is admissible after that period, and this embraces whatever is germane to the purpose which the bill had in view. Therefore, it was held that a bill to organize a township might be changed by amendment to organize the same territory into a county.1 27. The common-law record of legislation conclusive.The British parliament, including the three great estates of the realm the king, lords and commons,-possesses a transcendent power. It enacts laws by a procedure devised by itself, and it is subject to no paramount law. When a statute is framed and recorded according to its traditional forms as an act of parliament, it is a record which expresses the will of the sovereign power. General acts are "enrolled by the clerk of the parliament, and delivered over into the chancery, which enrollment in the chancery makes them the original record.” Private acts filed, sealed, and remaining with the clerk of parliament, are also original records. 1 Pack v. Barton, supra. 2 King v. Arundel, Hob. 110; 5 Comyn's Dig. Parliament; 1 Phil. Evi. 316. Anciently, the manner of proceeding in parliament was much different from what it is at the present day; for, formerly, the bill was in the form of a petition, and these petitions were entered upon the lords rolls, and upon these rolls the royal assent was likewise entered; and upon this, as a groundwork, the judges used, at the end of the parliament, to draw up the act of parliament into the form of the statute which was afterwards entered upon the rolls, called the statute-rolls; which were different from those called the lords-rolls, or the rolls of parliament; upon these statute-rolls neither the bill nor petition from the commons, nor the answer of the lords, nor the royal assent, were entered, but only the statute, as it was drawn up and penned by the judges; and this was the method till about Henry the Fifth's time. In his time, it was desired that the acts of parlia The record is deemed a ment might be drawn up and penned high record. It imports absolute verity, and must be tried by itself, teste meipso. This is the dignity and quality of all technical records. No plea can raise any other question regarding a record than that of its existence. Upon that issue the record itself is the only evidence; the trial is merely by the record. A record or enrollment is a monument of so high a nature, and imports in itself such absolute verity, that if it be pleaded that there is no such record there is no trial by witnesses, jury or otherwise than by the court inspecting the record itself. The court being bound to take judicial notice of the laws, no plea can be necessary or permitted denying the existence of the record of an act of parliament. In Prince's Case it was resolved "that against a general act of parliament, or such act whereof the judges ex officio ought to take notice, the other party cannot plead nul tiel record; for of such acts the judges ought to take notice; but if it be misrecited the party ought to demur in law upon it. And, in that case, the law is grounded upon great reason; for God forbid, if the record of such acts should be lost or consumed by fire or other means, that it should tend to the general prejudice of the commonwealth; but rather, although it be lost or consumed, the judges, either by the printed copy, or by the record in which it was pleaded, or by other means, may inform themselves of it."3 § 28. Legislative records.-The conclusiveness of records is a conclusion of the common law. We have in America the common law so far as it is suited to our condition. A technical record here has the same effect as by the common law of England, except as it is modified by the written law, or conditions are so changed as to render the common law inapplicable. The conditions in respect to legislation in this country, where a mandatory procedure is prescribed in a constitution, are not the same as in England.* statute rolls, and then issued out writs to the sheriffs, with transcript of the statute rolls, viz.: of the bill drawn at first in the form of a stat ute and without the answer of the king, lords and commons, to the bill, to proclaim the statute. Bac. Abr. title Court of Parliament, F. 12 Black. Com. 331. 3 Dwarris on St. 613; Sherman v. Story, 30 Cal. 276; Eld v. Gorham, 20 Conn. 8. 4 The dissenting opinion of Smith, C. J., in Green v. Weller, 32 Miss. 704, is instructive on this point. He says: § 29. A legislature in our republican system of government is a representative body. Its power is delegated by a charter from the people—a constitution. This is a sacred instrument, "In Great Britain there is no written fundamental law defining and limiting the powers of the government, by which the validity of the acts of any of the departments may be tested. The parliament, in a political and legislative sense, is omnipotent and supreme. The power and jurisdiction of parliament, says Lord Coke, are so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds. 4 Inst. 36. And so long,' adds Sir William Blackstone, 'as the British constitution lasts, it may be safely affirmed that the power of parliament is absolute and uncontrolled.' 2 Com. 162. "A void act of legislation necessarily implies the existence of a superior and controlling power in the state. There are but two conceivable reasons for which an act can be void. First, for want of power in the legislature to pass it. Second, because it has not been passed in the method required to make it valid. And the universally received doctrine in England is, that an act of parliament of which the terms are explicit, and the meaning plain, cannot be questioned or its authority controlled in any court whatever. The idea, therefore, of an unconstitutional law of parliament can have no existence under the English system of government. The parliament rolls, which are transcripts of the acts, made up under the supervision of officers appointed by parliament, and declared by law to be records, necessarily, I may say naturally, are conclusive evidence of the existence of the statute, and imply the due performance of the necessary prerequisites in their enact ment. It is a rule which flows from the absolute and unlimited jurisdiction and power of parliament. "The principles of the common law, unsuited to our condition, or repugnant to the spirit of our government, have no existence within this commonwealth. It required no act of positive legislation to repeal them. They have been excluded by the silent operation of our institutions. It is clear, therefore, that this rule, as a principle of the common law, can have no operation within this state. "For under the American theory of government the jus summi imperii, the supreme, absolute, uncontrolled authority does not reside in any of the departments of the gov ernment, nor in all of them united. It is inherent in the people, from whom all power is derived, and upon whose consent all government is founded. The constitution derives its existence from the immediate act and consent of the people. It is a law to the government which derives its just powers therefrom, or from the assent of the governed, for whose benefit that power is intrusted. As the constitution is the supreme law, all the acts of the government or the departments thereof, done in contravention of its provisions, are inoperative and void. An act of the legislature which has not been passed in conformity with the directions of the constitution, is equally void with one whose terms violate its provisions. Bill of Rights, art. 3. and upon it as a foundation is reared the whole fabric of our civil government. It confers all the powers deemed necessary to that government; in its limitations is all the security of the people against usurpation. Therefore, it is one of the beneficent axioms of our constitutional jurisprudence that the pecple are the source of all the power possessed and exercised by the organized state; its restrictions are of the nature of prohibitions and mandatory. The authority which confers the power to make laws has the acknowledged right to qualify the grant and peremptorily regulate the exercise of the power conferred; so that acts of legislation to be valid must not only be within the grant and not exceeding the restrictions imposed, but also be passed or adopted in the mode or by the procedure prescribed.1 § 30. Effect of constitutional provisions prescribing parliamentary procedure. The federal constitution and that of nearly every state in the Union contain directions in respect to the manner of enacting as well as of authenticating statutes. These directions vary in terms and to considerable extent in substance. As to some very important particulars compliance will not appear upon the face of the statute. The procedure thus regulated and directed includes the meeting of the two houses, their action respectively in the introduction, amendment and passage of bills, communications between the houses, the time of presenting bills to the governor for approval, and of his action thereon. In part their procedure is historically entered, and in some particulars required to be entered in the legislative journals; in part it so occurs that material points will not be or are not required to be mentioned in any record or official memorial; as for instance when a bill is presented to the governor, or when he approves it. Legisla tive journals were in use in the British parliament at the time to give it effect, if it be void for either of these causes." In Sherman v. Story, 30 Cal. 253, is a lucid and thorough exposition of the common law on this subject, and it seems to have been properly applied to the case under consideration, for there was no departure from a constitutional practice complained of. 1 Legg v. Mayor, etc. 42 Md. 203; Moog v. Randolph, 77 Ala. 597; Jones v. Hutchinson, 43 id. 721; Perry County v. Railroad Co. 58 id. 546; Moody v. State, 48 id. 115; S. C. 17 Am. R. 28; Supervisors v. Heenan, 2 Minn. 330. |