Berry v. Baltimore & Drum Point Railroad

41 Md. 446, 1875 Md. LEXIS 61

• Court: Court of Appeals of Maryland
• Decided: February 27, 1875
• Status: Published

Opinion

Alvet, J.,

delivered the opinion of the Court.

This is an appeal from a pro forma order of the Court below, refusing an injunction to the appellant, to restrain the execution of a judgment recovered against him by the appellee, for balance of subscription to the stock of that corporation; and the ground of the application is, that, under the Act of 1874, chapter 389, section 3, amendatory of the company’s charter, which was granted by the Act of 1868, chapter 364, the duration of the charter is limited to the first of January, 1875, the company not having finished or completed its road as provided it should have done.

By the 19th section of the original charter of 1868, it was provided that if the company did not commence the road within six years from the passage of the Act, and should not finish the same in four years from the time of the commencement thereof, then the charter should be null and void. By agreement filed in the cause it is admitted that the road was commenced in 1873; and by the preamble to the third section of the amendatory Act of 1874, chapter 389, it is stated that the company had been duly organized, and the work of construction of the road commenced, but that it was feared the time allowed by its charter for the completion of the road was insufficient, and that an extension of time therefor was desired; and following this preamble is the third section of the Act of 1874, which, as published in the printed volume of the laws, provides that if the road shall not be finished in five years from the first of January, 1870, then the charter, and all its amendments, to be null and void. Under the charter, before it was amended by the Act of 1874, the company had until the year 1877 to complete the road, but under the third section of the amendatory Act, as published, it has only until the first of January, 1875 ; so that instead of obtaining an extension of time, as was designed, the company has in fact been restricted in the time allowed by the original charter.

The appellee, in its answer to the appellant’s bill, avers and insists that the third section of the amendatory Act of 1874, as it appears in the printed volume of the statutes of the last session, never in fact passed either House of the Legislature. That the third section of the Act, as it in truth and reality did pass the two Houses of the G-eneral Assembly, provided for an extension of time for the completion of the road for five years from the first of January eighteen hundred and seventy-five; and that the change was made in the section after tiie final passage of the Act, either by design or mistake, by some clerk or copyist, in omitting the word “five” after the word “seventy.” And in verification of the fact that such was the time for which the extension was given by the section of the Act as actually passed, the engrossed bill, as it was finally acted on by«the two Houses of the Legislature, with the endorsements thereon by the proper officers, as to the action of the respective Houses, together with the journals of both Houses, have been produced from the custody of their proper custodian; and from the evidence thus furnished, it is made clear beyond all question or dispute, that the particular section of the Act involved, as it passed the two Houses of the Legislature, is essentially different from the corresponding section in the Act that received the imprint of the Great Seal, the signature of the Governor, and was lodged in the office of this Court for record, and afterwards published. As the bill passed the Legislature, the extension of time for the completion of the road, as provided in the third section, was for five years from the first of January, 1875 ; as it now reads in the printed statute hook, the extension is for five years from the first of January, 1870. How this change or alteration occurred can only he matter of conjecture. But we may readily suppose that if the engrossed bill, as it was finally acted on by the two Houses of the Legislature, had been sealed and submitted to the Governor for his signature, instead of being entrusted to some careless or inexpert clerk to be copied for such authentication and approval, the alteration or omission would hardly have occurred.

This change or alteration in the Act is of serious import to the Railroad Company; and the question now is, how is the matter to be dealt with by the Courts ? It is contended by the appellant that the law must be taken to be as we find it evidenced by the bill filed in the office of this Court, under the Great Seal, and the signature of the Governor ; while, on the other hand, it is insisted by the appellee that it is competent to this Court to examine the journals of the two Houses of the General Assembly, and the original engrossed bill, with the* indorsements thereon, in order to ascertain and determine what were the provisions of the Act that really passed the two Houses of the General Assembly.

In opposition to the right to examine the journals, and the engrossed bill with its endorsements, to ascertain what the particular Act was that received the assent of the Legislature, the appellant relies upon the cases of Fouke vs. Fleming & Douglass, 13 Md., 392, and The Mayor, &c. of Annapolis vs. Harwood, 32 Md., 471. But those cases were not in all respects similar to the one now under consideration. In those cases it was not made distinctly to appear that the particular provision of the statutes as published, did not receive the legislative assent; the evidence not being such as the Court,was willing to accept to overcome the strong presumption arising from the due authentication of the statutes there involved. It was assumed, from the fact that the bills, as published, corresponded in all respects with the bills as engrossed, that they did receive the assent of the Legislature. But in the case now before us, it is plainly shown by the most unquestionable evidence, that the third section of the bill as engrossed, before the third reading and the passage thereof, pursuant to the requirement of the Constitution, Art. 3, sec. 27, and as it actually passed, is essentially different from the corresponding section in the bill that was attested, sealed, signed by the Governor, and filed for record. There is therefore no ground for presumption in favor of the identity of the bill as recorded in the office of this Court, with that which passed the Legislature, unless we make the facts of the attestation, the imprint of the Great Seal, the signature of the Governor, and the filing for record, conclusive upon the question as to what is law, and exclude all other evidence upon the subject, no matter how plain and direct it may be. But to do this would he virtually denying to the people of the State the benefit of the safe-guards provided hy the Constitution, and to allow and enforce that as law which has not been assented to hy their representatives. The Constitution has prescribed certain modes and prerequisites for the enactment of laws, and as these, hy the terms of the Constitution, are imperative conditions, no bill, not so enacted into law, should be allowed to affect the rights of the citizen. Suppose, for instance, it could be plainly shown by competent evidence for the purpose, that a particular hill, alleged to have been passed by the Legislature, had never been put to final vote,, or that it had been declared passed without previous readings, and in total disregard of the expressed mandatory requirements of the Constitution, as to the manner in which a hill can he enacted into a law, could it be successfully maintained that such alleged .Act should he enforced as law, notwithstanding the omission or non-observance of the essential conditions and prerequisites upon which a law can be enacted under the Constitution? We suppose not. And if not in such case, a fortiori should it not he enforced as law when it is plainly made to apjjear that it has never been before the Legislature at all.

Unquestionably, where an Act has been duly authenticated and published as law by authority, the presumption is, that all the constitutional solemnities and prerequisites necessary to its valid enactment have been complied with; and this presumption exists until the contrary is clearly made to appear. But when it can be made clearly to appear, as in this case it has been, that the particular bill or section of a bill, although it may have all the forms of authentication, has never in fact received the legislative assent, we think the Court is bound to look not only behind the printed statute book, but beyond the forms of authentication of the hill as recorded in the office .of this Court, and if the evidence he clear and entirely satisfactory to the mind of the Court, to decide accordingly.

This question has repeatedly arisen in several of the State Courts of the highest authority, and in all cases, with but few exceptions, it has been held, that neither the printed statute book, nor the ordinary authentication of the statute after its passage, would preclude the inquiry into the fact, whether the statute as published had in truth passed the Legislature ; and as evidence upon the question, the legislative journals, and the bills as acted upon by the legislative assemblies, have been consulted. Purdy vs. The People, 2 Hill, (N. Y.,) 33 ; S. C., 4 Hill, 384 ; De Bow vs. The People, 1 Denio, 11; Southwark Bank vs. Commonwealth, 2 Penn. St., 446; Spangler vs. Jacoby, 14 Ill., 297 ; Turley vs. Logan County, 17 Ill., 151; People vs. Stone, 35 Ill., 121, 141; People vs. Mahany, 13 Mich., 481; 35 N. H., 579; 52 N. H., 622; Cooley on Const. Lim., 135 ; Smith on Const. & Stat. Law, secs. 949, 50 ; Sedgw. on Const. & Stat. Law, 69 ; Cushing on the Law of Legislative Assemblies, secs. 2211-12-19-22 and 2405.

But while the authorities just cited maintain that it is the right and duty of the Court to go behind the authentication of the statute, and to receive evidence, such as that furnished by the engrossed bills, with the indorsements thereon, and the journal of proceedings of the two Houses of the Legislature, upon the question of the Constitutional enactment of what purports to be a statute, they all seem to concur in maintaining that no statute, having the proper forms of authentication, can be impeached or questioned upon mere parol evidence. Eor do we decide in this case, that the journals of the two Houses, though required by the Constitution to be kept as records of their proceedings, would be evidence per se upon which the validity of a statute, having the required authentication, could be successfully questioned as to the manner of its enactment. But we think the journals, in connection with other competent evidence upon the subject, may be examined as means of information to aid in arriving at a correct conclusion as to what was the action of the Legislature on any particular bill before it. And while the evidence must be of the most satisfactory character, in order to overcome the presumption arising from due authentication of the statute, we think we may safely conclude with the Supreme Court of the United States, in the case of Gardner vs. The Collector, 6 Wall., 499, that, on princijdeas well as authority, whenever a question arises 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 reliable and 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. And applying this rule to the present case, as we can have no doubt Avhatever that the third section of the Act in question, as that Act was sealed and approved by the Governor, is materially different from the third section of the Act as it passed the two Houses of the Legislature, we must, therefore, declare that particular section of the Act to be null and void.

And having thus declared the third section of the Act' a nullity, the next question is, how does that affect the remainder of the statute ? Upon examination it is found that the third section is entirely separate and disconnected from the other sections of the Act, and that the operation and effect of those sections in no manner depend upon the co-existence of the third section. As applicable to such case, Judge Cooley, in his work on Constitutional Limitations, p. 177, says: ”It will sometimes be found that an Act of the Legislature is opposed in some of its provisions to the Constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may "be sufficient for some of the purposes sought to he accomplished "by it, but insufficient for others. In any such case the portion which conflicts with the Constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association, must depend upon a consideration of the object of the law, and in what manner, and to what extent the unconstitutional portion affects the remainder.” Here, as the entire published statute, except the third section, was regularly passed by the Legislature, and approved by the Governor, there can be no reason for declaring the other portions of it void, because the third section is found to be a nullity. Statutes may be void in part and good in part; and if the part that is valid is entirely distinct and severable from that which is void, the Courts will uphold and enforce the former as if passed disconnected from the latter. State vs. Commissioners of Balto. Co., 29 Md., 521; Mayor, &c. of Hagerstown vs. Dechert, 32 Md., 369. That principle applies to this case.

(Decided 27th February, 1875.)

It follows from what we have said, that the 19th section of the appellee’s charter is left unaffected by the Act of 1874, and that that section still prescribes the limitation for the commencement and completion of the road. And, as in this view of the case the appellant’s bill presents no ground for an injunction, the order appealed from will be affirmed, and the bill dismissed.

Order affirmed, and bill dismissed.