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 2 Const. 1873, art. 3, sec. 4; art. 2, sec. 12; Commonwealth v. Martin, 107 Pa. St. 185; Kilgore v. Magee, 85 id. 412. Const. 1846, art. 3, secs. 9, 11; Const. 1857, art. 3, secs. 9, 17; Clare v. State, 5 Iowa, 510; Duncombe v. Prindle, 12 id. 1. 1 State v. Swift, 10 Nev. 176; State istics and nature of the copies of legv. Glenn, 18 id. 39. islative bills deposited according to the ordinary routine in the office of the secretary of state. . . . The principal argument in favor of this judicial appeal from the enrolled law to the legislative journal, and which was much pressed in the discussion at the bar, was, that the existence of this power was necessary to keep the legislature from overstepping the bounds of the constitution. The course of reasoning urged was that if the court cannot look at the facts and examine the legislative action, that department of the government can, at will, set at defiance, in the enactment of statutes, the restraints of the organic law. This argument, however specious, is not solid." The answer of the court, briefly stated, was that if the legislature intends a violation of the constitution in the enactment of a statute it is futile to rely on its journals or any extrinsic evidence to show the irregularity. The journals are under its direction, and not kept nor authenticated in a manner to weigh as evidence against enrolled acts. "In my estimation," said the chief justice, "the doctrine in question if entertained would, as against legislative encroachments, be useless as a guard to the constitution, and it certainly would be attended with many evils. Its practical application would be full of embarrassment. If the courts, in order to test the validity of a statute, are to draw the comparison between the enrolled copy of an act and the entries on the legislative journal, how great, to have the effect of exploding the act, must be the discrepancy between the two? Will the omission of any provision, Const. 1876, art. 4, sec. 4. In the leading case in that state on this sub-, ject (Pangborn v. Young, 32 N. J. L. 29), the court by Beasley, C. J., said: "From the earliest times, so far as I am able to ascertain, it has been the invariable course of legislative practice in this state, for the speaker of each house to sign the bill as finally engrossed and passed. It is likewise certified by indorsement by the clerk of the house in which it originated. With these attestations of authenticity upon it, it is then filed in the office of the secretary of state. This has been the course of proceeding from certainly a very remote period to the present time; under our present constitution the written approval of the governor is requisite. There seems, therefore, to be no doubt whatever that these copies, thus authenticated and filed, are to be regarded as enrolled bills, corresponding in their general character, and partaking, if not in all, at least in most respects, of the nature of parliamentary rolls. In the statute book they are frequently referred to as enrolled bills; and if we go back to provincial times we find indorsed upon these copies, with the executive approval, a direction to enroll them, which meant nothing more than to file them. These are the character 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 that effect? The difficulty of a satisfactory answer to these and similar interrogatories is too apparent to need comment. And, again, to notice one among the many practical difficulties which suggest themselves, what is to be the extent of the application of this doctrine? If an enrolled statute of this state does not carry within itself conclusive evidence of its own authenticity, it would seem that the same principle must be extended to the statutes, however authenticated, of other states." The court also mentions that in the frame of the state government there are three co-ordinate branches, in all things equal and independent, each in its sphere the trusted agent of the public; and it is arrogating an authority, not given to the judiciary, to inquire into the veracity of the certificate by which the legislature by its officers authenticates its enactments. In the opinion of the court, the power to certify to the public laws itself has enacted is one of the trusts of the constitution to the legislature of the state. Art. 3, secs. 11, 15; People v. Supervisors, 8 N. Y. 317, 327, 328. 21 R. S. p. 187, §§ 10, 11. 3 See People v. Devlin, 33 N. Y. 269, 283; People v. Commissioners, 54 id. 276; Purdy v. People, 4 Hill, 384; People v. Purdy, 2 id. 31; DeBow v. People, 1 Denio, 14; Warner v. Beers, 23 Wend. 125; Thomas v. Dakin, 22 id. 9. 4 Art. 4, sec. 12. be dispensed with; and the vote on the passage of every bill or joint resolution shall be taken by yeas and nays." By another 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 office 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 J Art. 4, sec. 18. 3 See art. 5, sec. 14. 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.ate 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.3 153 Ind. 254. 2 In the Texas constitution the governor must act on every bill presented to him one day previous to the adjournment of the legislature before the adjournment; otherwise it will become a law without his approval; and under it it is held that the governor must have the bill at least twenty-four hours before the adjournment. Hyde v. White, 24 Tex. 137; Const. 1845, art. 5, § 17; Const. 1868, art. 4, § 25; Const. 1866, art. 5, § 17. 3 Hulburt v. Merriam, 3 Mich. 144; Reed v. Clark, 3 McLean, 480; People v. Commissioners, 54 N. Y. 276; Greer v. State, 54 Miss. 378; De Bow v. People, 1 Denio, 9; Rex v. Jefferies, 1 Strange, 446. It was held in Town of Pacific v. Seifert, 79 Mo. 210, that the original roll, as deposited with the secretary of state, is the best evidence of a leg $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, there is a discrepancy between the charter of the town as published in· the printed laws of the state and the statute roll on file in the office of the secretary of state in this, that in the former it was provided that the trustees of the town might impose fines for breach of any of the ordinances not to exceed twenty dollars in amount, and in the latter the word twenty was ninety, and for aught that appeared on the record this discrep ancy was first brought to the atten tion of the defendant upon the trial, about twenty years after the enactment of the charter, in an action by the town to recover of him the penalty of $90 for refusing to take out a merchant's license as required by an ordinance, it was held that, under these exceptional circumstances, the printed copy of the charter should control in determining the defendant's liability. See Att'y-General v. Joy, 55 Mich. 94; Pease v. Peck, 18 How. 595. |