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certifying and with the duty of deciding what laws have been enacted. Like rulings have been made under similar constitutional provisions in Pennsylvania, Iowa, New Jersey
i State v. Swift, 10 Nev. 176; State istics and nature of the copies of legv. Glenn, 18 id. 39.
islative bills deposited according to ? Const. 1873, art. 3, sec. 4; art. 2, the ordinary routine in the office of sec. 12; Commonwealth v. Martin, the secretary of state. . The 107 Pa St. 185; Kilgore v. Magee, 85 principal argument in favor of this id. 412.
judicial appeal from the enrolled law 3 Const. 1816, art. 3, secs. 9, 11; to the legislative journal, and which Const. 1857, art. 3, secs. 9, 17; Clare was much pressed in the discussion v. State, 5 Iowa, 510; Duncombe v. at the bar, was, that the existence of Prindle, 12 id. 1.
this power was necessary to keep the * Const. 1876, art. 4, sec. 4. In the legislature from overstepping the leading case in that state on this sub-, bounds of the constitution. The ject (Pangborn v. Young, 32 N. J. L course of reasoning urged was that 29), the court by Beasley, C. J., said: if the court cannot look at the facts “From the earliest times, so far as I and examine the legislative action, am able to ascertain, it has been the that department of the government invariable course of legislative prac- can, at will, set at defiance, in the entice in this state, for the speaker of actment of statutes, the restraints of each house to sign the bill as finally the organic law. This argument, engrossed and passed. It is likewise however specious, is not solid.” The certified by indorsement by the clerk answer of the court, briefly stated, of the house in which it originated. was that if the legislature intends a With these attestations of authentic- violation of the constitution in the ity upon it, it is then filed in the of- enactment of a statute it is futile to fice of the secretary of state. This rely on its journals or any extrinsic has been the course of proceeding evidence to show the irregularity. from certainly a very remote period The journals are under its direction, to the present time; under our pres- and not kept nor authenticated in a ent constitution the written approval manner to weigh as evidence against of the governor is requisite. There enrolled acts. “ In my estimation," seems, therefore, to be no doubt said the chief justice, “the doctrine whatever that these copies, thus au- in question if entertained would, as thenticated and filed, are to be re- against legislative encroachments, be garded as enrolled bills, correspond- useless as a guard to the constitution, ing in their general character, and and it certainly would be attended partaking, if not in all, at least in with many evils. Its practical applimost respects, of the nature of par- cation would be full of embarrassliamentary rolls. In the statute book ment. If the courts, in order to test they are frequently referred to as en- the validity of a statute, are to draw rolled bills; and if we go back to the comparison between the enrolled provincial times we find indorsed copy of an act and the entries on the upon these copies, with the executive legislative journal, how great, to have approval, a direction to enroll them, the effect of exploding the act, must which meant nothing more than to be the discrepancy between the two? file them. These are the character. Will the omission of any provision,
and New York since the adoption of the constitution of 1846.1
$ 36. Evidence of statutes in New York. Though the constitution of New York provides that the votes required on the passage of bills shall be taken by yeas and nays and entered on the journals, it is nevertheless held that a certificate made pursuant to a statute by the secretary of state on acts being deposited in his office, certifying the day, month and year when the same became a law, excludes all resort to any other evidence of its passage, and makes the act so deposited and certified the original record of it, invulnerable under the common-law rules applicable to enrolled acts of parliament. The statute ? provides that such certificate shall be conclusive evidence of the facts therein declared.?
$ 37. Same - State of Indiana.— The Indiana constitution of 1851 required each house to keep a journal of its proceedings and publish the same. It also provides that “every bill shall be read by sections, on three several days in each house, unless, in case of emergency, two-thirds of the house where such bill may be depending shall, by a vote of yeas and nays, , deem it expedient to dispense with this rule; but the reading of a bill by sections, on its final passage, shall in no case
no matter how unimportant, have given to the judiciary, to inquire into that effect? The difficulty of a satis- the veracity of the certificate by factory answer to these and similar which the legislature by its officers interrogatories is too apparent to need authenticates its enactments. In the comment. And, again, to notice one opinion of the court, the power to among the many practical difficul- certify to the public laws itself has ties which suggest themselves, what enacted is one of the trusts of the is to be the extent of the application constitution to the legislature of the of this doctrine? If an enrolled stat- state. ute of this state does not carry within 1 Art. 3, secs. 11, 15; People v. Suitself conclusive evidence of its own pervisors, 8 N. Y. 317, 327, 328. authenticity, it would seem that the 21 R. S. p. 187, SS 10, 11. same principle must be extended to 3 See People v. Devlin, 33 N. Y. the statutes, however authenticated, 269, 283; People v. Commissioners, of other states." The court also men- 54 id. 276; Purdy v. People, 4 Hill, tions that in the frame of the state 384; People v. Purdy, 2 id. 31 ; Degovernment there are three co-ordi- Bow v. People, 1 Denio, 14; Warner nate branches, in all things equal v. Beers, 23 Wend. 125; Thomas v. and independent, each in its sphere Dakin, 22 id. 9. the trusted agent of the public; and 4 Art. 4, sec. 12. it is arrogating an authority, not
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be dispensed with; and the vote on the passage of every bill or joint resolution shall be taken by yeas and nays." other section it is declared that “a majority of all the members elected to each house shall be necessary to pass every
bill or joint resolution; and all bills and joint resolutions so passed shall be signed by the presiding officers of the respective houses.” A like vote after a veto will adopt the bill, and
? give it the force of law; but no similar certificate of the presiding officers in that case is provided for. If the governor fail for three days, Sundays excepted, to act upon a bill after it is presented to him, it becomes a law without his signature, unless a general adjournment prevents its return, and he does not, within five days after the adjournment, file his objections thereto in the oflice of the secretary of state. No verification of these facts appears to be provided for in the constitution preliminary to the deposit of the act with the secretary of state. The constitution also prohibits the presentation to the governor of any bill during the last two days before the final adjournment.
$ 38. In Evans v. Browne, the act appears without the governor's approval. It was accompanied, however, by a statement signed by the governer, and it may be inferred he caused it to be filed. In his statement he explains that it was a house bill amended in the senate, and the amendments concurred in by the house the day after forty-two members had resigned by delivering their resignations to him in writing, and thereby as claimed reducing the number below a constitutional quorum. The bill was certified by the presiding officers. It was held that where a statute is authenticated by the signature of the presiding officers of the two houses, the courts will not search further to ascertain whether such facts existed as gave constitutional warrant to those officers to thus authenticate the act as having received legislative sanction in such manner as to give it the force of law. The court say: “ The framers of our government have not constituted it [the judiciary] with faculties to supervise co-ordinate departments and correct or prevent abuses of their authority. It cannot authenticate a statute; that power does not belong to it; nor can it 1 Art. 4, sec, 18.
3 See art. 5, sec. 14. ? Art. 4, sec. 25.
450 Ind. 514.
keep the legislative journal. It ascertains the statute law by looking at its authentication, and then its function is merely to expound and administer it. It cannot, we think, look beyond that authentication, because of the constitution itself.”
$ 39. In Bender v. State, it was held not for the court to look beyond the enrolled act of the legislature to ascertain whether there had been a compliance with the injunction of the constitution that "No bill shall be presented to the governor within the last two days next preceding the final adjournment of the general assembly.'
$ 40. It thus appears that in these several states legislative acts may be enrolled; that is, become of record in the office of the secretary of state by agencies not appointed in the constitution, and without any verification on certain points as to which there are positive directions or prohibitions in the constitution, without verification by any officer charged in the constitution with the duty to know the essential facts, or standing in such relation to the people that in his certificate should be reposed an abso,te confidence that the requirements of the constitution have been obeyed in all the procedure which it regulates. If it may be said that there are no certificates required by the constitution to authenticate the journals, so it may be said that none is so required to verify the entire process of enactment, whether the act be enrolled with or without executive approval.
The printed statutes under all the authorities may be corrected by reference to the enrolled act, especially if the discrepancy is pointed out before public acquiescence in or ratification of the statute as published. 3
1868, art. 4, § 25; Const. 1866, art. 5, 2 In the Texas constitution the gov- $ 17. ernor must act on every bill presented 3 IIulburt v. Merriam, 3 Mich. 144; to him one day previous to the ad- Reed v. Clark, 3 McLean, 480; People journment of the legislature before v. Commissioners, 54 N. Y. 276; Greer the adjournment; otherwise it will v. State, 54 Miss. 378; De Bow v. Peobecome a law without his approval; ple, 1 Denio, 9; Rex v. Jefferies, 1 and under it it is held that the gov- Strange, 446. ernor must have the bill at least It was held in Town of Pacific v. twenty-four hours before the ad- Seifert, 79 Mo. 210, that the original journment. Hyde v. White, 24 Tex. roll, as deposited with the secretary 137; Const. 1845, art. 5, S 17; Const. of state, is the best evidence of a leg
153 Ind. 254.
$ 41. Constitutional regulations of procedure, where mandatory. The authority of the organic law is universally acknowledged; it speaks the sovereign will of the people. The sovereign power of the state being inherently in them, their injunctions in the constitution regarding the process of legislation is as authoritative as are those touching the substance of it. If the former are treated as directory to the legislature, acts passed in violation of them, either by intention, inadvertence, or erroneous construction, are nevertheless valid; and the same would be true of like violations of the constitution in respect to the substance of legislation. The law has always been recognized as clear and indisputable, and has been settled without dissent, that acts which are unconstitutional on their face are nullities. And it was settled early in our constitutional jurisprudence that it was the peculiar function and duty of the judiciary to pronounce on their validity. In the exercise of this function the judiciary does not trench on the domain of the legislative department, though it pronounces judgment on its official work. The courts are bound by statutes when they are constitutional, but when otherwise it is the duty of the courts to treat them as void. Acts which contravene any provision of the constitution in their substance are invalid though the constitution has not declared that consequence. The function of the courts is the same to determine the validity of acts questioned on the ground of having been passed by a proceeding not in accordance with the procedure prescribed in the constitution. In a large majority of the states in which the question has arisen, the courts have
islative enactment. Where, however, tion of the defendant upon üe trial, there is a discrepancy between the about twenty years after the enactcharter of the town as published in: ment of the charter, in an action by the printed laws of the state and the the town to recover of him the penstatute roll on file in the office of the alty of $90 for refusing to take out a secretary of state in this, that in the merchant's license as required by an former it was provided that the ordinance, it was held that, under trustees of the town might impose these exceptional circumstances, the fines for breach of any of the ordi- printed copy of the charter should nances not to exceed twenty dollars control in determining the defendin amount, and in the latter the word ant's liability. See Att'y-General v. twenty was ninety, and for aught that Joy, 55 Mich. 94; Pease v. Peck, 18 appeared on the record this discrep- How. 595. ancy was first brought to the atten