Cohn v. Kingsley

49 P. 985, 5 Idaho 416, 1897 Ida. LEXIS 34

• Court: Idaho Supreme Court
• Decided: July 9, 1897
• Status: Published

Opinions

QTTAKLES, J.

The controlling question in this case is, Is the act of March 12, 1897, regulating the fees and compensation of county and precinct officers, valid? Section 15, article 3, of' the constitution, is as follows: “No law shall be passed except by bill, nor shall any bill be put upon its final passage until the •same, with the amendments thereto, shall have been printed, for the use of the members: nor shall any bill become a law unless the same shall have been read on three several days in each House previous to the final vote thereon; provided, in case of urgency, two-thirds of the House where such bill may be pending may, upon a vote of the yeas and nays, dispense with this provision. On the final passage of all bills they shall be read at length, section by section, and the vote shall be by yeas and nays upon each bill separately, and shall be entered upon the journal; and no bill shall become a law without the concurrence of a majority of the members present.'” It is contended by the appellant that the provisions of said section of the constitution were not complied with by the legislature in the passage of said act. The respondent contends that the presumption is that the legislature complied with all of the provisions of the constitution, and that the court cannot go back of the enrolled bill for the purpose of ascertaining whether the provisions of the constitution were followed or not. Hpon this question there is some conflict of authority, but the gTeat weight of authority and the soundest reasoning support the rule that the court not only may, but it is the imperative duty of the court, when this issue is before it, to look to the journals of the legislature, and see if, in passing the statute in question, the legislature have proceeded in the manner provided by the constitution. By the terms of said section of the constitution, supra, six things must be done in the passage of a law, to wit: (1) The introduction of the proposed law by bill, necessarily in writing; (2) the printing of the bill, with the amendments thereto; (3) the reading of the bill on three several days, in each House, previous to a final vote thereon; (4) the reading of the bill on its final passage, section by section; (5) a vote on the final passage, by yeas and nays; (6) the concurrence of a majority of the members present. These provisions are mandatory, and it is the imperative duty of the legislature to obey them. As we said in the case of Dunbar v. Board of Commissioners (decided at the present term), ante, p. 407, 49 Pac. 409, the duty of supporting the constitution of the state is imposed upon all public officers by the solemn obligations of the official oath, which obligations cannot be discharged by disobeying, ignoring, and setting at naught the plain provisions of the constitution, but only by obedience thereto. In construing said section of tbe constitution, it is necessary to inquire into- the extent of the application of the proviso which we find therein, viz.: “In ease of urgency, two-thirds of the House where such bill may be pending may upon a vote of the yeas and nays dispense with this provision.” A careful reading of the section shows that that part of the section which precedes the proviso consists of three separate clauses disjunctively stated. The first clause relates to the introduction of the bill, the second to the printing of the bill, the third to the reading on three several days. We are of the opinion, from the context, from the conditions which the framers of the constitution thought might arise, and from the apparent object which they had in view, that said proviso applies, and was only intended to apply, to the last clause preceding the proviso. It was not intended to authorize the legislature to dispense with the introduction of the proposed law by bill, nor was it intended to authorize the legislature to dispense with printing the bill. The framers of the constitution evidently intended by said provision to put it in the hands of the legislature, in ease of necessity to act promptly, to pass a bill in one, instead of not less- than six, days, and we can imagine a case where such urgency would exist. For instance, an insurrection should take place, and in order to quell it an appropriation should be promptly made, or the executive should be given some power not then given by existing law, or it should be necessary to forthwith enlarge the militia. The object of requiring the printing and three several readings on separate days is a good one. It was to insure the rights and interests of the people against hasty and inconsiderate legislation.

The people, in making and adopting the constitution, were not content with requiring the printing and reading one time only of bills, but have absolutely required that all bills shall be read on three several days in each House; and these several readings cannot be dispensed- with, except “in case of urgency, two-thirds of the House where such bill may be pending may upon a vote of the yeas and nays dispense with this provision.”

The history of the passage of the act in question, first known-as “Senate bill No. 2,” afterwards as “Substitute Senate bill No. 2,” as shown by the journals of both Houses, is briefly as follows:

In the Senate: “January 7. Senate bill No. 2, introduced by Senator Thomas A. Davis, read for the first time, and referred to the committee on judiciary. January 11. Judiciary reported, and recommended that the bill be printed. January 20. Bill reported printed. Same day, Senate bill No. 2, by Davis, was read the second time by title and referred to committee on engrossment. January 22. Taken from committee on engrossment, and referred to general calendar for action of the committee of the whole. January 23. Senate bill No. 2 made a special order of business for Monday, January 27, at 2:35 o’clock P. M. January 26. Committee of the whole, having the bill under consideration, reported progress, and further consideration postponed for one week. February 2. The committee of the whole reported progress, and asked leave to sit again. February 8. Consideration by the committee of the whole. The committee reported progress, and recommends that the bill retain its place on the calendar, and asked and was granted leave to sit again. On motion of Senator Joseph C. Kieh, Senators Ballentine (of Blaine), Keller, and Davis (of Oneida) were appointed a special conference committee on Senate bill No. 2, and as such to report at 2 o’clock P. M. to-morrow, and the further consideration of the bill postponed until that hour. February 10. Thomas A. Davis of the special conference committee on Senate bill No. 2, informed the Senate that the House had passed a resolution to confer with a like committee from the Senate on said matter, and asked further time, which was granted. February 15, Committee reported, and submitted a substitute for Senate bill No. 2, and recommended the passage of the same. Substitute for Senate bill No. 2, introduced by conference committee: ‘An act regulating the fees and eom-•pensation of the various county and precinct officers within the state of Idaho.’ Bead the first time by title, under suspension of section 15, article 3, of the constitution, and Senate rules, by unanimous consent, and referred to committee on public printing. February 17. Substitute for Senate bill No. 2 reported back, printed and placed on the calendar. February 24. The committee of the whole reported progress in consideration of substitute Senate bill No. 2, and asked and was granted Have to sit again. On the same day the following report was adopted by an aye and nay vote of twelve to seven, viz.: £Mr President: Tour committee of the whole reports that it has had under consideration substitute for Senate bill No. 2, and reports same back, with the recommendation that it do pass/ Substitute for Senate bill No. 2 was filed for second reading, and considered engrossed. Motion made to reconsider the report of the committee of the whole was laid on the table by an aye and nay vote of thirteen to seven. Substitute bill No. 2 was considered engrossed, and filed for third reading. February 16. Substitute to Senate bill No. 2 read the third time, and passed by an aye and nay vote of fifteen to five. March 8. On motion the Senate concurred in House amendments to substitute Senate bill No. 2, with the exception of the twenty-second amendment, and the House notified of such concurrence. On the same day the Senate received a message from the House to the effect that the House of ^Representatives had passed substitute to Senate bill No. 2, by conference committee, as amended. On the same day the bill was reported correctly enrolled, and signed by the president of the Senate and speaker of the House and transmitted to the governor/’

In the House: “February 2. Message from the Senate that the Senate had passed substitute to Senate bill No. 2, and that same was therewith transmitted. March 1. Mr. Heat moved that the rules of the House, and article 3, section 15, of the constitution, be suspended, and all Senate and House bills, joint resolutions, and memorials on first and second reading be read first and second time by title, and referred to their appropriate committees, which motion was adopted by an aye and nay vote of twenty-four to five; and under the said motion substitute for Senate bill No. 2, by conference committee, £An act regulating the fees and compensation of the various county and precinct officers within the state of Idaho,’ was read the first and second time by title, and referred to committee on county officers. March 2. The committee on county officers reported the bill back, and recommended its passage. The bill was then read a third time, and referred to the judiciary committee. March 4. The committee on judiciary reported the bill back, with amendments, and recommended tbat said amendments be considered seriatim by the House, and recommended tbat tbe bill, with the amendments thereto, do pass. March 6. Mr. Keat offered two amendments which were adopted. Mr. Rogers offered an amendment which was rejected. Mr. Wright offered two amendments which were rejected. The committee of the whole recommended twenty amendments, numbered from 1 to 20, respectively. The question was then put, ‘Shall the bill as amended be passed to third reading?’ and which question prevailed. Mr. Rice then offered an amendment which was adopted. Then, on an aye and nay vote, twenty-one to eighteen, the vote to pass the bill to third reading was reconsidered. Mr. Workman moved, as a substitute to amendment No. 13 by committee of the whole, the amendment herein referred to, as an amendment to the amendment by the committee of the whole, being amendment No. 13. The question was then put, ‘Shall the substitute motion be adopted?’ and carried by an aye and nay vote of twenty-five to ten, and so the substitute motion was adopted. It was then ordered that the bill be passed to third reading. Mr. Elder then moved that the rules of the House and section 15 of article 3 of the constitution be suspended, and Senate bill No. 2 be considered engrossed, read a third time, and placed upon its final passage, which motion was, on an aye and nay vote of twenty-three to three, declared carried. And so the rules and constitution were suspended, and the House passed to the order of third reading of House bills. Senate bill No. 2 by conference committee, ‘An act regulating the fees and compensation of the various county and precinct officers within the state of Idaho,’ was read a third time. The bill was then put on its final passage, on an aye and nay vote, and carried, the vote being thirty-two to three. March 8. Message received from the Senate as follows: ‘Mr. Speaker: I am instructed to inform your honorable body that the Senate has had under consideration and concurred in House amendments to substitute a Senate bill No. 2, with the exception as to the twenty-second amendment, which has been amended as follows: In line 1, after the word “subdivision,” strike out the figure “5” and insert the figure “3”; in line 2, strike out the figures “79” and insert the figures “78” — which is herewith transmitted. Bespectfully, ¥m. Y. Helfrieh, Asst. Secretary.’ On the same day the committee on printing reported that it had had printed amendments to substitute for Senate bill No. 2, original amendments returned. Workman moved that House concur in the amendment proposed by the Senate as to Senate bill No. 2, in twenty-second amendment; subdivision 5 to be changed to 3, and to be line 78 instead of line 79, which motion prevailed.”

And this is the record as it appears in the journals of the two Houses. While many irregularities worthy of criticism appear in this record, we will only call attention to some of the more flagrant violations of the constitution. As shown by the Senate journal, substitute to Senate bill No. 2, .offered by the conference committee, which was, in effect and in fact, a new bill, was read the first time by title; the Senate assuming to suspend section 15 of artiole 3 of the constitution without an aye and nay vote, a thing which cannot be done under the provisions of the constitution. It does not appear from the journal of the Senate that substitute to Senate bill No. 2 was read the second time. The recital that it “was filed for a second reading” does not show that it was read a second time. Each House is required, by section 13, article 3, of the constitution, to keep a journal of its proceedings. This means that the journal shall show all of the proceedings of the House, and all of the steps taken in the passage of every bill. By reason of this provision the journal becomes, not only the best evidence, but the exclusive evidence, of what was done by the House keeping such journal, and courts must impute to the record and statements in the journal absolute verity. The recitals in the journal are conclusive and cannot be contradicted. (Burkhart v. Reed, 2 Idaho, 503, 22 Pac. 1; Clough, v. Curtis, 2 Idaho, 522, 22 Pac. 8; Wright v. Kelly, 4 Idaho, 624, 43 Pac. 565; Water Co. v. Stockslager, 4 Idaho, 636, 43 Pac. 568; Blaine Co. v. Heard, ante, p. 6, 45 Pac. 890.) In the passage of a bill by either House, the journal of such House must show affirmatively that all of the requirements of the constitution were complied with by such House. To suspend the provision in regard to reading all bills on three several days in each House, an urgency must exist; and the suspension must he by an aye and nay vote, and by two-thirds of the House. It is difficult to see that an urgency could possibly exist in the passage of ordinary measures like the act in question, but, waiving that question, it appears that the Senate assumed to suspend the reading of the bill at length without an aye and nay vote thereon, in absolute violation of the constitution. If either House can disregard one plain provision of the constitution, then it may disregard all of its provisions, and the constitution, instead of being the fundamental law of the land, is a mere sham, an idle mockery, a nullity. In the House of Eepresentatives it does not appear from the journal that the bill was read a first and second time on several days, or that the provision in this regard was suspended. True it is that on the first day of March Mr. Heat introduced in the House an omnibiis motion suspending section 15, article 3, of the constitution, and dispensing with the reading in full the first and second times of “all Senate and House bills, joint resolutions, and memorials,” and permitting the same to be read the first and second time by title only. This provision of the constitution is to be suspended only in case of urgency, and only with reference to a bill which is then pending and before the House for consideration at the time of the suspension. It cannot be suspended generally. It cannot be suspended for one day. If the legislature, or either House thereof, can suspend it for one day, then such House could suspend it for the entire session, and as to all business, and the provision would be an idle toy to be played with and tossed aside at will. The House adopted twenty-two amendments, and it does not appear from the House journal that these amendments were read on three several days. This is required by the constitution. Nor does it appear that these amendments were printed prior to the final passage of the bill by the House, which the constitution absolutely requires. The journal of the Senate fails to show that the bill was read on three separate days in the Senate after it had been amended twenty-two times by the House, or that it was read in the Senate at all after it was amended by the House, or that the bill Avith the House amendments thereto was ever finally voted on in the Senate after it had passed the House. A bill may originate in and pass one House, and then be sent to the other House, and be amended in the latter House so as to change the entire purpose of the bill. In such event, if the amended bill is permitted to become a law without having been read or passed by the other House, it would be a violation of the constitution.. It was the intention of the framers of the constitution to require amendments that might be adopted to a pending bill to be read three times on several days, the same as original bills, or sections of the pending bill which is amended. In the case at bar, speaking from the journal of the Senate, the bill in question, which passed the House after being materially changed, was never read in the Senate or put to a vote on final passage in the Senate. A bill which passes one House, and is materially changed by amendment by the other House, and then sent back to the House where it first originated, must go through the same procedure as to reading and final vote as if it was an original bill. The reason for this rule is obvious. In the case at bar, substitute to Senate bill No. 2, after it was amended in twenty-two instances, was not the bill which the Senate passed and sent to the House, and must, under the constitution, when returned to the Senate, be treated (at least, so far as the amendments are concerned) by the Senate as if it originated in the House. The mere declaration by the Senate that “we concur in the House amendments” does not answer the requirements of the constitution.

The plaintiff, in preparing his case, procured a transcript of the journals’ of both Houses, certified by the Secretary of State to be full and correct. This is the correct practice, and we commend it.

The court should treat the enrolled bill (the fact that it is regularly enrolled) as presumptive evidence that the legislature, in passing it, performed all of its duties; but this presumption is subject to rebuttal. And when the validity of a statute is attacked the party attacking should show by the journals that at least one requirement of the constitution was disregarded, and the failure of the journals to show that any constitutional requirement was obeyed is conclusive evidence that such requirement was not obeyed. If all the requirements of the constitution had been complied with, as to reading, printing and voting on final passage, in regard to the bill in question, by both Houses, then those portions of the act in question which relate to state officials are void, for the reason that such matter is not embraced in the title to said act, as required by section 16, article 3, of the constitution. We only refer to this for the reason that it tends to show how lightly the legislature treated the provisions of the constitution in passing the act in question. The object of the act in question, which was to cut down the excessive cost of litigation, and correct abuses in the regulation of fees of county and precinct officers, is a good one, and one with which this court is in full sympathy. It is therefore with great reluctance that we hold the act in question to be void, but there is no other alternative.

The conclusions reached, after a careful and full consideration, are: 1. To determine the validity of a statute, the. court can and should, in the proper case, go back of the enrolled bill to the journals of both Houses, to ascertain whether the requirements of the constitution were complied with by the legislature in enacting such statute. 2. The act in question is void in toto, by reason of the failure of the journals of the legislature to show a compliance with the requirements of the constitution in passing said act. The judgment appealed from is reversed, and the cause remanded, with instructions to the trial court to enter judgment in favor of the defendant. Costs of appeal awarded to the appellant.

Sullivan, C. J., and Huston, J., concur.