Comm'rs of Leavenworth Co. v. Higginbotham

17 Kan. 62

• Court: Supreme Court of Kansas
• Decided: July 15, 1876
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

i. DeM not paid by mere levy of taxes. This was an action brought by John Higginbotham against Leavenworth county on certain bonds issued by said county to the Union Pacific Eailway Co. The county says in its brief in this court, that it “rests its defense upon two different theories — first, that the pretended bonds sued on are [were] void ah initio, and have never been so ratified as to become the bonds of the county; second, but if valid, still that the county had levied and caused ' pi ~ to be collected taxes for the express purpose of paying these bonds, and sufficient in amount to pay them long before this suit was commenced;” and that as these bonds had been due more than five years when this suit was commenced, all action on the same was at that time barred by the five-year statute of limitations. With regard to the second theory of the plaintiff in error, we would say: -First— Admitting “that the county had levied and caused to be collected taxes for the express purpose of paying these bonds, and sufficient in amount to pay them long before this suit was commenced,” still the county never has paid them; it refuses to pay them, and has used the money collected for their payment for other purposes. Such a defense as the above is therefore hardly sufficient. And second — Admitting that more than five years had elapsed after these bonds became due, and before this suit was commenced, still, the county in 1873 paid all the interest due on said bonds up to that time, and has otherwise in writing and repeatedly acknowledged its own liability on said bonds. The cause of action therefore is evidently not barred. (Civil Code, §24.)

s. statutes not impeacfea. Turning now to the first theory of the plaintiff in error, defendant below: Are said bonds valid? The defendant below claims that they are void; first, because the act of the legislature under which they were issued never became a law; second, because the bonds were not legally issued under the act. The defendant claims that said act never became a law, and is therefore void, for the following reasons: lgt, because the yeas and nays were not called and entered on the senate journal on the final passage of the act in the senate; 2d, the enrolled bill of the act was never signed by the presiding officer of the senate; 3d, the act was published in the “Leavenworth Daily Conservative,” when it should have been published in the “Daily Conservative;” 4th, the signatures of the officers of the two houses affixed to the act were not publish^;! with the act. (Ch. 12, Laws of 1865, pp. 41, 42.) This act was passed and published more than eleven years ago. Since that time all the departments of the state government, the legislative, the executive, and the judicial, have held it to be valid. (Laws of 1866, pp. 72 to 74, 249, 250; Leavenworth Co. v. Miller, 7 Kas. 479; Morris v. Morris Co., 7 Kas. 576.) Its validity has never before been questioned upon any such grounds as are now urged against it. The only objection ever before urged against its validity was, that the legislature had no constitutional power to pass such acts; and that objection was long ago overruled by the courts. Many rights have accrued under the act, in the honest belief of its validity. And therefore, unless a very clear showing of invalidity can now be made out against it, it will be the duty of the courts to hold the act valid.

«passing bins-•yeas and nays. The question • raised by the first objection to the act we think has been settled by the decision of this court in the case of Haynes v. Heller, 12 Kas. 384, reporter's note, and P. 392, opinion. See also, Division of Howard County, 15 Kas. 195, 214. Said aot was Senate Bill No. 63, being senate bills Nos. 62 and 63 consolidated. On its final passage in the senate the yeas and nays were taken and entered on the senate journal, precisely as the constitution requires. The bill was .then taken to the house of representatives, where it was properly passed, with certain slight amendments, and was then returned to the senate for its concurrence. •The senate journal then shows that, “Mr. Gamble moved that the senate concur in the house amendments to Senate Bill No. 63, ‘an act to authorize counties to issue bonds to railroad companies.’ Motion prevailed.” Here is where it is claimed that the yeas and nays should have been taken and entered upon the journal. But what is there even here, and in this place, that shows that the yeas and nays were not taken? It is true, the clerk failed to enter them upon the journal; but as to whether they were actually taken or not, the journal is silent. And mere silence of record, does not as a rule invalidate the proceeding. It is a general principle of law, that it will be presumed, in the absencé of anything to the contrary, and in favor of the regularity and validity of the official proceedings of any official body having superior jurisdiction, that whatever ought to have been done was not only done, but rightly done. (McCulloch v. The State, 11 Ind. 425, 433 to 435. As to courts, see Hunter v. Furguson, 13 Kas. 462; Ogden v. Walters, 12 Kas. 283.) The journal shows that the “motion prevailed;” but in what manner the vote was taken, the journal does not show.

te ATittimticatmg wlls' Whether the failure of the presiding officer of the senate to sign the enrolled bill of said act, invalidates the law or not, is the main question in this case. Indeed, it is the only new question that merits any consideration from this court. The constitution requires that “ Every bill and joint resoluti°n passed by the house of representatives and senate shall within two days thereafter be signed by the presiding officers, and presented to the governor,” etc. The regular presiding officer of the senate is the lieutenant-governor. (Const., art. 1, §12.) But the senate may also elect a president pro tern, of the senate, who may preside in case of the absence or impeachment of the lieutenant-governor, or when the lieutenant-governor holds the office of governor. Now it seems from the book of enrolled bills of the session of the legislature of 1865, that the regular president of the senate signed very few of the bills passed at that session. The most of them were signed by the president pro tern. But some of them however were not signed by any presiding officer of the senate, among which was the bill now under consideration. The bill now under consideration was signed by the secretary of the senate, by the speaker of the house, by the chief clerk of the house, and by the governor. Does the failure of the presiding officer of the senate to sign said bill, invalidate everything cannected therewith? If it does, then the presiding officer of the senate has more power to veto bills than the governor, or than any other person or officer in the state. The legislature may pass a bill over the veto of the governor; but if the plaintiff in error is correct, they cannot pass a bill over the veto (so to speak) of the lieutenant-governor, so as to make the bill become a valid law. The lieutenant-governor is the president of the senate; he holds his office independent of the legislature; they have no power to remove him from office, except by the slow and tedious proceeding of impeachment; they have no power to compel him to sign a bill, except by the equally slow and tedious proceeding of mandamus, and this can only be done in the courts; and if the plaintiff in error is correct they have no power to make a valid law except with the aid of his signature, so long as he is the acting presiding officer of the senate. Of course, he has the whole of the two days given him within which to sign a bill. He would not be in default — no action could accrue against him for any supposed default, prior to the expiration of the two days. And upon the theory of plaintiff in error, when the two days have elapsed, if the bill has not yet been signed, it has become defunct.' Everything connected therewith is dead. All the proceedings of the legislature with reference thereto have been annulled; and there is no power anywhere that can ever afterward breathe life or vitality into them again. The constitution provides that when a bill has passed the two houses it “shall within two days thereafter be signed by the presiding officers,” etc.: (art. 2, § 14.) And there is no power given by the constitution or elsewhere for the presiding officers to sign the bill at any time subsequent to the expiration of said two days. Plaintiff in error claims that this provision of the constitution is absolutely mandatory, and therefore that no valid law can be made unless its terms are fulfilled to the very letter, and therefore no valid law can be made unless the bill is signed by the presiding officers of the two houses within the prescribed two days. To admit that a bill might under any circumstances become a law without being signed within the two days, would be to admit that said provision of the constitution is not mandatory. ' It would be to admit that a law might be made without said provision being strictly complied with. It would be to admit that a failure on the part of the presiding officers to sign a bill within the two days does not absolutely destroy the life and vitality of the bill, and render all the proceedings of the legislature with reference thereto nugatory. And to admit that an action of mandamus would under any circumstances lie to compel a presiding officer who had failed to sign a bill for more than two days to afterward sign the same, would be to admit the foregoing. It would be to admit that a bill might become a law, although it was not signed within the two days as prescribed by the constitution. We think that mandamus would lie in such a case; but ordinarily it would be a very inadequate remedy. It would lie for the purpose of furnishing the additional evidence which the signatures of the presiding officers would give as to the passage and the validity of the laws, but it would ordinarily be a very inadequate remedy, if, as the plaintiff in error claims, the validity of the law depends entirely upon the signatures of the presiding officers; for ordinarily, nearly all the bills of any particular session are passed just before the close of the session; and ordinarily, before any action of mandamus could be heard and determined the legislature would be adjourned sine die. Therefore, as the action of mandamus would ordinarily be a very inadequate remedy, it would be extremely unfortunate if it were the only remedy. If it were the only remedy, then the power of the presiding officers to practically annul the proceedings of the legislature, to practically veto the bills passed by the legislature, would be almost as absolute as if no such remedy were in existence. But we think that mandamus is not the only remedy so far as determining the validity of the law is concerned. The signatures of the presiding officers do not constitute any portion of the law. It is not necessary that the consent of the presiding officers should be had in order to enact the law. The only office that the signatures of the presiding officers is intended to perform, is to furnish evidence of the due passage and validity of the bill'. Such signatures are only portions of the many evidences of the due passage and validity of the bill. And a bill may in some instances, as we think, be valid, although the signatures of one of the presiding officers may be omitted. With one of such signatures gone, the evidence of the passage and validity of the bill would, of course be somewhat weakened. If the signatures of both of the presiding officers were gone, the ' evidence would of course be weaker still. If in addition to this, the journals did not show the passage of the bill, then the evidence of its passage would be almost wholly gone. And taking the whole of the evidence together, if it should not clearly appear to the courts that the bill had been passed by the legislature, and approved by the governor, it would be the duty of the courts to declare that the bill had never become a law. The courts must decide as to the passage and validity of a bill upon the whole of the legal evidence applicable in such cases. If the enrolled bill were perfect and formal in every particular, then the courts might say that the bill had passed and become a law, although there might be omissions from the journals. (See authorities cited in 15 Kas. 211, and State v. Swift, 10 Nevada, 176.) Or, if the journals were perfect in every particular, and showing that the bill had been regularly and duly passed, then the courts might say that the bill had passed and become a law, although there might be some omissions from the enrolled bill. The enrolled bills and the journals of the legislature are the principal evidences of the passage and validity of a bill, and generally they cannot be contradicted. Probably they can never be cob tradicted if they are harmonious with themselves and with each other. (Division of Howard Co., 15 Kas. 194.) But in doubtful cases, extrinsic evidence may. probably be received to corroborate what they seem to prove, or to explain the doubtful import of their language. We think that the enrolled bill and the legislative journals in the present case, when taken together, clearly show- that the bill, now under consideration was duly passed by the legislature, and approved by *the governor, and that it regularly became a valid law. And all the extrinsic evidence having any application to the case also clearly shows the same thing. Among the evidences (record and extrinsic) which show that said bill has become a valid law are the following: The legislative journals show beyond all doubt that the bill passed the two houses. The senate journal shows that the bill passed the senate. The house journal shows that the secretary of the senate reported to the house, that the bill had passed the senate. The house journal also shows that the bill regularly passed the house, with amendments. The senate journal shows that the senate concurred in the house amendments. The house journal shows that the secretary of the senate reported to the house that the senate had concurred in the house amendments. The senate journal shows that the committee on enrolled bills reported to the senate that the bill had been correctly enrolled, and presented to the governor for his approval. And the senate journal also shows, that the governor reported to the senate that he had approved the bill. The enrolled bill is now preserved in the office of the secretary of state, bound in a book along with the other enrolled bills of that session, and it contains the following evidences of its own.passage and validity: It contains the certificate and signature of the secretary of the senate, showing that the bill passed the senate; the certificates and signatures of the speaker and the chief clerk of the house, showing that the bill passed the house, and inferentially that it passed the senate; and the signature and approval of the governor, which inferentially shows that it passed both houses. The bill has been published as a law by the secretary of state, both in a newspaper and in the statute book. (Laws of 1865, pp. 41, 42.) It has subsequently been recognized as a law by the legislature and the governor; (Laws of 1866, pp.72 to 74, 249, 250;) and also by the courts; (7 Kas. 479, 576.) And indeed, it has generally been recognized to be as much a law as any other law on the statute book. And the question that it was not duly passed, or signed, has never been raised until recently, although it has been on the statute book "for over eleven years. We think the mere failure of the president of the senate to do his duty cannot have the effect to invalidate the law.

«.publication of laws. The defendant in error says in his brief, that “ The claim of the plaintiff in error that the law was not duly published, is too fine for extended comment; and further, the same act was published on the 19th of June 1865, with the other laws same session, and by §4 of the act previoug gubmiggioiig [to the people of the question of voting bonds, etc.,] were made valid,” etc. We suppose that the plaintiff in error, through its agents and counsel, knows that the “Leavenworth Daily Conservative” was the only “Daily Conservative” in the state, for such was the fact; but how it knows that the signatures of the officers affixed to the act were not published, we are not informed. But suppose they were not published: we do not think that such omission would invalidate the law. If it would, then the plaintiff’s present petition in error in this court should be •dismissed for the following reasons: Neither the signatures to the act defining the jurisdiction of this court, (Gen. Stat. 299, 300,) nor the signatures to the act authorizing petitions in error, (Gen. Stat. 735, 736,) have ever been published. We think the act in the present .case was properly published.

Plaintiff in error claims that said bonds are void because, as it claims, they were not issued in accordance with said act of the legislature, and urges several reasons for this claim. Some of these reasons controvert the facts as found by the court below, and as they ought to have been found; some of tbem controvert the law; some of them have already been considered and decided by this court in the case of Leavenworth Co. v. Miller, 7 Kas. 541; and none of them are tenable. Making the bonds payable in New York, and making the interest seven per cent, per annum, payable semi-annually, certainly does not invalidate the bonds.

We think the election to vote upon the question of issuing the bonds was valid, although it was called by the county board on the eleventh day of their May term 1865. (See arguments of counsel in their briefs.) There are probably good reasons however why the bonds should be held valid, even if said election was not strictly valid. They have been ratified,, not only by the county board, but substantially by the legislature, and by the people of Leavenworth county themselves.

The judgment of the court below must be affirmed.

All the Justices concurring.