« 이전계속 »
held constitutional provisions in reference to parliamentary procedure in legislation to be mandatory, and against permitting any careless or dishonest officer's certificate or use of the great seal, or filing for record of documents having the form of legislative acts, to give the force of law to such acts, if they have not been constitutionally enacted. These courts unite in holding that a valid statute can be passed only in the manner prescribed by the constitution; and when the provisions of that instrument in regard to the manner of enacting laws are disregarded in respect to a particular act, it will be declared a nullity though having the forms of authenticity.
9:42. Legislative journals and files as evidence.— The subject of proof has been a prominent one in the discussion of the constitutional provisions relative to legislative procedure. The inconvenience, and sometimes great hardship, to the public resulting from allowing records and published statutes to be, at any time, modified or avoided by extrinsic evidence has been the principal cause of the diversity of judicial opinion
1 Legg v. Mayor, etc. 42 Md. 203; v. Horrigan, 4 Lea, 608; Memphis F. Berry v. Baltimore, etc. R. R. Co. 41 Co. v. Mayor, 4 Cold. 419; Spangler v. id. 446; S. C. 20 Am. R. 69; People Jacoby, 14 Ill. 297; People v. Starne, v. Mahaney, 13 Mich. 481; Green v. 35 id. 121; Ryan v. Lynch, 68 id. 160; Graves, 1 Doug. 351; Att’y-General Miller v. Goodwin, 70 id. 659; People v. Joy, 55 Mich. 94; Meracle v. Down, v. DeWolf, 62 id. 253; Houston, etc. 64 Wis. 323; South Ottawa v. Per- R. R. Co. v. Odum, 53 Tex. 343; kins, 94 U. S. 260; State v. Platt, 2 S. Blessing v. Galveston, 42 id. 641; C. 150; S. C. 16 Am. R. 647; State v. Opinion of Justices, 35 N. H. 579, 52 McLelland, 18 Neb. 236; Board of Su- id. 622 ; Weill v. Kenfield, 54 Cal. 111; pervisors v. Heenan, 2 Minn. 330; County of San Mateo v. R. R. Co. State v. Hastings, 24 Minn. 78; Burt Sawyer, 238; S. C. 8 Am. & Eng. R. v. Winona, etc. R. R. Co. 31 id. 472; R. Cas. 1; Moog v. Randolph, 77 Ala S. C. 4 Am. & Eng. Cor. Cas. 426; 597; Jones v. Hutchinson, 43 id. 721 , Wise v. Bigger, 79 Va. 369; Fowler v. Perry County v. R. R. Co. 58 id. 546; Peirce, 2 Cal. 165; Smithee v. Camp- Dane v. McArthur, 57 id. 454; Moody bell, 41 Ark. 471; Webster v. Little v. State, 48 id. 115; S. C. 17 Am. R. Rock, 44 Ark. 536; Worthen County 28; Sayre v. Pollard, 77 Ala. 608; Clerk v. Badgett, 32 id. 496; State v. State v. Buckley, 54 id. 599; Stein v. Little Rock, etc. R. R. Co. 31 id. 701; Leeper, 78 id. 517; Osburn v. Staley, 5 State v. Crawford, 35 id. 237; Vin- W. Va. 85; S. C. 13 Am. R. 640; Gardsant v. Knox, 27 id. 266; Smithee v. ner v. Collector, 6 Wall. 499; State v. Garth, 33 id. 17; Burr v. Ross, 19 id. Smalls, 11 S. C. 262; State v. Hagood, 250; Post v. Supervisors, 105 U. S. 13 S. C. 46; Bond Debt Cases, 12 id. 667; State v. Francis, 26 Kan. 724; 200; Lyman v. Martin, 2 Utah, 136; Williams v. State, 6 Lea, 549; Gaines Brown v. Nash, 1 Wyoming, 85.
which exists on this subject. The tendency, however, of the law's growth is to preserve the supremacy of constitutional authority, leaving it to the wisdom of the legislature to mitigate any incidental inconvenience by closer observance of the prescribed procedure, and more diligent attention to the making and preservation of a public record of the essentials. The cases cited in the preceding section hold the constitutional injunctions imperative; and as the constitutions require the keeping and publication of legislative journals, these are treated as sources of information to be relied on by the courts as well as the public. In Fordyce v. Godman,' the court say “if it could be shown that the requisite vote were not given on the passage of a bill, and the evidence were rejected because the bill was properly authenticated, the court would, in effect, hold that a single presiding officer might, by his signature, give the force of law to a bill which the journal of the body over which he presides and which was kept under the supervision of the whole body showed not to have been voted for by the constitutional number of members.” The court concluded that “the plain provisions of the constitution are not to be thus nullified, and the evidence which it requires to be kept under the supervision of the collective body must control when a question arises as to the due passage of a bill.” 2
§ 43. The courts have been exceedingly conservative in their researches involving the validity of statutes having a regular record or authentication; they have not opened the door to all kinds of evidence nor freely consulted all sources of information. They have given great weight to such authentication; irregularity by departing from a practice laid down by the constitution is not readily inferred, where written evidence should exist, in the absence of proof of that nature.
The intention of constitutional provisions that they should operate as conditions, or be treated as mandatory, is inferred largely from the accompanying requirement that legislative journals be kept, preserved and given publicity by publication, and that certain steps in the process of legislation be therein
: 20 Ohio St. 1.
Ottowa v. Perkins, 94 U. S. 260; 2 Berliner v. Town of W. 14 Wis. Osburn v. Staley, 5 W. Va. 86; Berry 378; Bound 7, R. R. Co. 45 Wis. 543; v. Baltimore, etc. R. R. Co. 41 Md. Meracle v. Down, 54 Wis. 323; South 446; Legg v. Mayor, etc. 42 Md. 203.
recorded. The parliamentary history of any act in question in the legislative journals and files is the only evidence which the cases generally recognize, though some cases intimate that other evidence may be considered. Parol evidence of the action of the two houses is excluded.4
$ 44. The journals, by being required by the constitution or laws, are records. At common law the legislative journals were not strictly records; while admissible in evidence for certain purposes as official memorials or remembrances, they were not admissible to show that an act of parliament had not been passed according to its own rules. But when required, as is extensively the case in this country, by a paramount law, for the obvious purpose of showing how the mandatory pro visions of that law have been followed in the methods and forms of legislation, they are thus made records in dignity, and are of great importance. The legislative acts regularly authenticated are also records; the acts passed, duly authenticated, and such journals are parallel records, but the latter are superior when explicit and conflicting with the other, for the acts authenticated speak decisively only when the journals are silent, and not even then as to particulars required to be en tered therein.
In Gardner v. The Collector," Mr. Justice Miller, speaking for the whole court on the question of proving the date of the president's approval of a bill, laid down this general rule: that "on principle as well as authority, whenever a question arises
1 Osburn v. Staley, 5 W. Va. 86; 115; Gaines v. Harrigan, 4 Lea, 608; People v. Mahaney, 13 Mich. 481; Perry County v. R. R. Co. 58 Ala. Spangler v. Jacoby, 14 Ill. 297; State 546; Jones v. Hutchinson, 43 id. 721 ; v. Buckley, 54 Ala. 599; Jones v. Stein v. Leeper, 78 id. 517; Spangler v. Hutchinson, 43 id. 721.
Jacoby, 14 III. 297; S. C. 58 Am. Dec. 2 Moog v. Randolph, 77 Ala. 597; 571. Osburn v. Staley, 5 W. Va. 86; Hap- 3 State v. Platt, 2 S. C. 150; S. C. 16 pel v. Brethauer, 70 III. 166; Wise v. Am. R. 647. Bigger, 79 Va. 269; State v. McLelland, Berry v. Baltimore, etc. R. R. Co. 18 Neb. 236; Board of Supervisors v. 41 Md. 446; Wise v. Bigger, 79 Va. Heenan, 2 Minn, 330; People v. Ma- 269. haney, 13 Mich. 481; Webster v. 5 King v. Arundel, Hob. 110. Little Rock, 44 Ark. 536; Smithee 6 Opinion of Justices, 35 N. H. 579; V. Campbell, 41 id. 471; Weill v. 52 id. 622; Wise v. Bigger, 79 Va. Kenfield, 54 Cal. 111; State v. Fran- 269; State v. Smalls, 11 S. C. 262. cis, 26 Kans. 724; Williams v. State, 76 Wall. 499, 511. 6 Lea, 549; Moody v. State, 48 Ala.
in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule."
$ 45. A statute will not be declared void for having been enacted in violation of provisions of the constitutions relating to procedure on the admissions of parties in pleadings or otherwise, but only on facts being ascertained from proper evidence. When it clearly appears by the journals and legislative files that any required proceeding was omitted; as when one of the prescribed readings did not take place, or was by title, when required by sections or at length;? or when it appears that the bill, passed by one branch of the legislature, was in materially different terms from the bill passed by the other branch, or when one branch wholly failed to pass it;? or when the bill approved by the governor and authenticated as the law requires is materially different from the bill passed by the two houses, it will be held a nullity.
§ 46. Presumption in favor of validity of statutes.-—When an act is found lodged in the oflice of the secretary of state, with the public acts passed at the same session, signed by the presiding officers, approved and signed by the governor, and it is published by authority as one of the public statutes of the state, or is otherwise authenticated according to law, and in proper custody, the presumption is that it was regularly
Happel v. Brethauer, 70 Ill. 166; Wolf, 62 III. 253: Opinions of Justices, Legg v. Mayor, etc. 42 Md. 203. 35 N. H. 579; 52 id. 622.
2 Ryan v. Lynch, 68 III, 160 ; Super- 4 Moog v. Randolph, 77 Ala. 597; visors v. Heenan, 2 Minn. 330; Weill v. Moody v. State, 48 id. 115; S. C. 17 Kenfield, 54 Cal. 111; People v. Loe- Am. R. 28; Jones v. Hutchinson, 43 wenthal, 93 II. 191; State v. Hagood, Ala. 721; Sayre v. Pollard, 77 id. 608; 13 S. C. 46. See County of San Mateo Stein v. Leeper, 78 id. 517; Legg v. v. R. R. Co. 8 Am. & E. R. R. Cas. 1; Mayor, etc. 42 Md. 203; State v. S. C. 13 Fed. Rep. 722.
Liedtke, 9 Neb. 462; Berry v. Balti3 Bound v. R. R. Co. 45 Wis. 543; more, etc. R. R. Co. 41 Md. 446; S. C. Meracle v. Down, 64 id. 323; Wise 20 Am. R. 69; State v. Platt, 2 S. C. v. Bigger, 79 Va. 269; People v. De 150; S. C. 16 Am. R. 617; State v.
Hagood, 13 S. C. 46.
passed, unless there is evidence of which the courts take judicial notice showing the contrary.' The journals are records, and in all respects touching proceedings under the mandatory provisions of the constitution will be effectual to impeach and avoid the acts recorded as laws and duly authenticated, if the journals affirmatively show that these provisions have been disregarded. In the absence of such an affirmative showing, and even in cases of doubt, it will be presumed that a quorum was present; that the necessary readings occurred;? that amendments made by one branch, though extensive, were germane;' that they were concurred in by the other branch, though the journals may be silent.*
$ 47. As all particulars of compliance with the constitution are not specially required to be entered on the journals, such compliance will be presumed in the absence of proof to the contrary; the silence of the journals will not be accepted as proof that a proceeding required and not found recorded was omitted, even though it be a proceeding required in the two houses, and such as would appear in the journals if it occurred and they contained a memorial of all that was done. The presumption of regularity is exemplified also in cases where notice is required to be published before application to the legislature for certain private or local legislation. In the absence of any entry in the journals showing such previous notice or alluding to it, it will be presumed in favor of the law, that such notice was given, and that the legislature exacted proof of it. The legislature need not express on the
1 See post, $ 52; Opinions of Justices, 2 McCulloch v. State, 11 Ind. 424; 35 N. H. 579; 52 id. 622; Larrison v. Supervisors v. People, 25 Ill. 181; R. R. Co. 77 Ill. 11; State v. Francis, Miller v. State, 3 Ohio St. 475. 26 Kan. 724; State v. McLelland, 18 3 Miller v. State, supra; Pack v. Neb. 236; People v. Briggs, 50 N. Y. Barton, 47 Mich. 520. 558; Williams v. State, 6 Lea, 549; 4 State v. Hastings, 24 Minn. 78; State v. McConnell, 3 id. 332; Miller Walker v. Grisith, 60 Ala. 361; Blessv. State, 3 Ohio St. 475; Supervisors ing v. Galveston, 42 Tex. 641; Miller r. v. People, 25 Ill. 181 ; Perry County v. State, 3 Ohio St. 475; Vinsant v. Knox, R. R. Co. 58 Ala. 546; Bound v. R. R. 27 Ark. 279; English v. Oliver, 28 id. Co. 45 Wis. 543; Harrison v. Gordy, 317; Usener v. State, 8 Tex. App. 177; 57 Ala. 49; People v. Loewenthal, 93 Worthen v. Badgett, 32 Ark. 516; Ill. 191; Speer v. Plank R. Co. 22 Supervisors v. People, 25 III. 181. Pa. St. 376; Wise v. Bigger, 79 Va. 5 Id. 269.
6 Walker v. Griffith. 60 Ala. 361: