페이지 이미지
PDF
ePub

CHAPTER II.

THE LEGISLATURE, AND THE ESSENTIAL PARLIAMENTARY

PROCEDURE.

$ 26. The legislature.
27. Common-law record of legisla-

tion conclusive.
28. Our legislative record.
30. Effect of constitutional regula-

tions of legislative procedure. 33. States holding statutes conclu

sive in Missouri and Missis

sippi. 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

ity of statutes. 49. Required reading of bills. 51. Necessity of signature of pre

siding officers. 52. How validity of statutes tried. 52. When acts should be approved.

$ 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.

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 2 Davidson v. Moorman, 2 Heisk. V. Judge, 29 La. Ann. 223; Macon, 575; Jones v. Theall, 3 Nev. 233. See etc. R. R. Co. v. Little, 45 Ga. 370; Speed v. Crawford, 3 Met. (Ky.) 207. Gormley v. Taylor, 44 Ga. 76. See 3 Pack v. Barton, 47 Mich. 520; Rohrbacker v. Jackson, 51 Miss. 735; Powell v. Jackson, 51 id. 129. See People v. Hatch, 33 Ill. 9, 151. 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.'

$ 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. The record is deemed a 1 Pack v. Barton, supra.

ment might be drawn up and penned 2 King V. Arundel, Hob. 110; 5 by the judges before the end of parComyn's Dig. Parliament; 1 Phil. liament; and this was by reason of Evi. 316. Anciently, the manner of a complaint then made, that the statproceeding in parliament was much utes were not equally and fairly different from what it is at the pres- drawn up and worded. After the ent day; for, formerly, the bill was in parliament was dissolved or prothe form of a petition, and these pe- rogued in Henry the Sixth's time, the titions were entered upon the lords former method was altered, and these rolls, and upon these rolls the royal bills contenentes formam actus parassent was likewise entered; and liamenti were first used to be brought upon this, as

a groundwork, the into the house. The bills (before they judges used, at the end of the parlia- were brought into the house) were ment, to draw up the act of parlia- ready drawn, in the form of an act ment into the form of the statute of parliament, and not in the form of which was afterwards entered upon a petition, as before; upon which the rolls, called the statute-rolls; bill it was written by the commons, which were different from those soite baile al seigneurs; and by the called the lords-rolls, or the rolls of lords, soit bayle al roye; and by the parliament; upon these statute-rolls king, le roy le veut; all this was writneither the bill nor petition from the ten upon the bill, and the bill, thus commons, nor the answer of the indorsed, was to remain with the lords, nor the royal assent, were en- clerk of the parliament, and he was tered, but only the statute, as it was to enter the bill thus drawn at first, drawn up and penned by the judges; in the form of an act of parliament and this was the method till about or statute, upon the statute rolls, Henry the Fifth's time. In his time, without entering the answer of the it was desired that the acts of parlia- king, lords or commons upon the

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.*

a

statute rolls, and then issued out 12 Black. Com. 331 writs to the sheriffs, with transcript of 28 Coke, 28. the statute rolls, viz.: of the bill 3 Dwarris on St. 613; Sherman v. drawn at first in the form of a stat. Story, 30 Cal. 276; Eld v. Gorham, 20 ute and without the answer of the Conn. 8. king, lords and commons, to the bill, 4 The dissenting opinion of Smith, to proclaim the statute. Bac. Abr. C. J., in Green v. Weller, 32 Miss. 704, title Court of Parliament, F.

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 ment. It is a rule which flows from fundamental law defining and lim- the absolute and unlimited jurisdiciting the powers of the government, tion and power of parliament. by which the validity of the acts of “The principles of the common any of the departments may be tested. law, unsuited to our condition, or reThe parliament, in a political and pugnant to the spirit of our governlegislative sense, is omnipotent and ment, have no existence within this supreme. The power and jurisdic- commonwealth. It required no act tion of parliament, says Lord Coke, of positive legislation to repeal them. are so transcendent and absolute that They have been excluded by the siit cannot be confined, either for lent operation of our institutions. It causes or persons, within any bounds. is clear, therefore, that this rule, as a 4 Inst. 36. 'And so long,' adds Sir principle of the common law, can William Blackstone, as the British have no operation within this state. constitution lasts, it may be safely “For under the American theory affirmed that the power of parlia- of government the jus summi imment is absolute and uncontrolled.' perii, the supreme, absolute, uncon2 Com. 162.

trolled authority does not reside in “A void act of legislation neces- any of the departments of the govsarily implies the existence of a su- ernment, nor in all of them united. perior and controlling power in the It is inherent in the people, from state. There are but two conceivable whom all power is derived, and upon reasons for which an act can be void. whose consent all government is First, for want of power in the legis- founded. The constitution derives its lature to pass it. Second, because it existence from the immediate act and has not been passed in the method consent of the people. It is a law to required to make it valid. And the the government which derives its universally received doctrine in Eng- just powers therefrom, or from the land is, that an act of parliament of assent of the governed, for whose which the terms are explicit, and the benefit that power is intrusted. As meaning plain, cannot be questioned the constitution is the supreme law, or its authority controlled in any all the acts of the government or the court whatever. The idea, therefore, departments thereof, done in contraof an unconstitutional law of parlia- vention of its provisions, are inoperament can have no existence under tive and void. An act of the legislathe English system of government. ture which has not been passed in The parliament rolls, which are tran- conformity with the directions of the scripts of the acts, made up under the constitution, is equally void with one supervision of officers appointed by whose terms violate its provisions. parliament, and declared by law to Bill of Rights, art. 3. be records, necessarily, I may say "The judiciary, like all the departnaturally, are conclusive evidence of ments, are bound by the constitution, the existence of the statute, and im- and sworn to support it. It is, there ply the due performance of the nec- fore, their duty to pronounce an act essary prerequisites in their enact- of the legislature null, and to refusa

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.

$ 30. Effect of cor:stitutional 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. Legislative journals were in use in the British parliament at the time

to give it effect, if it be void for either 1 Legs v. Mayor, etc. 42 Md. 203; of these causes."

Moog v. Randolph, 77 Ala. 597; Jones In Sherman v. Story, 30 Cal. 253, is v. Hutchinson, 43 id. 721; Perry a lucid and thorough exposition of County v. Railroad Co. 58 id. 546; the common law on this subject, and Moody v. State, 48 id. 115; S. C. 17 it seems to have been properly ap- Am. R. 28; Supervisors v. Heenan, 2 plied to the case under consideration, Minn. 330. for there was no departure from a constitutional practice complained of.

« 이전계속 »