Comstock v. Tracey

46 F. 162, 1891 U.S. App. LEXIS 1231

• Court: U.S. Circuit Court for the District of Minnesota
• Decided: May 15, 1891
• Status: Published

Opinions

Thomas, J.,

(after stating the facts as above.) Upon these conceded facts the plaintiff contends that the judgment of the court of common pleas of Hennepin county in Hale v. Comstock, avoiding the deed from Joseph Hodges and wife to the plaintiff, under which . she claims title to the property in question, is, and was at the time of its rendition, absolutely void, because said court was never constitutionally created or established. Section 1, art. 6, of the constitution of the state of Minnesota reads as follows:

“The judicial power of the state shall be vested in the supreme court, district courts, courts of probate, justices of the peace, and such other courts, inferior to the supreme court, as the legislature may from time to time establish by a two-thirds vote.”

The supreme court of the state of Minnesota has held in State v. Gould, 31 Minn. 189, 17 N. W. Rep. 276, that the “two-thirds vote by which the constitution authorizes the legislature to establish courts is a vote in each house of two-thirds of all the members thereof.” Under the stipulation allowing either party to object to any or all of the facts on the ground of competency or materiality as evidence, the defendant interposed an objection on the^ trial io that part of subdivision 10 of the agreed statement by which the plaintiff offered to prove by the journals of the two houses of the legislature that the act purporting to create the court of common pleas of Hennepin county was never passed bj^ the requisite two-thirds vote as irrelevant and immaterial, for the reason that the question cannot be raised or determined in this action, or in any collateral proceeding; citing Supervisors v. Heenan, 2 Minn. 330, (Gil. 281;) State v. City of Hastings, 24 Minn. 78; Burt v. Railroad Co., 31 Minn. 472, 18 N. W Rep. 285, 289. Reference to subdivision 10 of the agreed statement shows that the bill in question was duly enrolled and signed by the presiding officers of each house, was approved by the governor, and promulgated along with the other laws of the session of the year 1872. The act upon its face must be presumed to be valid, and to have been passed in accordance with the requirements of the constitution. Relying upon its apparent validity, a judge was appointed, and the court organized in accordance with the terms of the act. For over five years that court exercised jurisdiction in civil and criminal cases in one of the most populous and important judicial districts in the state, embracing the progressive city of. Minneapolis, without question, and unchallenged as to its constitutional creation. It w’as apparently recognized as a valid, existing court by the legislature of the state in 1875, by an act requiring the judges of the several common pleas courts of the state to meet with the district judges to promulgate rules of practice governing the procedure of both courts; in 1876, by amending the act of 1872, by providing for the transfer of causes to the district court in case the judge is interested in the litigation, and for calling in the judge of another court of common pleas in case of illness; in 1877, by an act merging this court with the district court of the fourth judicial district, and continuing the judge of the former court in office as one of the judges of the latter; also transferring to the latter court all pending cases. It is admitted that these various acts were regularly adopted and approved, except that none of them show by the journals to have been passed by two-thircls vote. Rules of property have necessarily been established, and rights vested, or supposed to have been vested, by the judgments of that court. The consequences following and naturally resulting from a judgment declaring the judgments of the court absolutely void would or might be serious. In view of these facts and consequences, this court, sitting and exercising jurisdiction in this state, should approach the question involved with due care and caution. Section 5, art. 4, of the constitution of the state of Minnesota is as follows:-

“The house of representatives shall elect its presiding officer, and the senate and house of representatives shall elect such other officers as may be provided bylaw. They shall keep journals of their proceedings, and from time to time publish the same, and the yeas and nays, when taken on any question, shall be entered on such journals. ”

The statute of the state relating to such journals also provides:

“Each journal shall be recorded in books to be furnished by the secretary of state for that purpose. After the journals are recorded, said books shall be deposited with the secretary of state, who shall carefully preserve the same, and said records shall be considered the true and authentic journal. ” Gen. St. Minn. 1878, c. 5, §23; Laws Minn. 1868, e. 46, § 23.

Should this court look to the journals and inspect them in this action for the purpose of ascertaining whether or not the act in question received the requisite two-thirds vote in each house? In other words, should this court appropriate the journals as evidence to determine the ultimate fact as to whether or not this law received the requisite two-thirds votes upon this collateral attack? The law is upon its face ^presumptively valid, and can only be successfully attacked, if at all, by going back of the regular authenticated enrolled bills, bearing the approval of the executive, and regularly deposited in the archives of the state. We must go to the journals to find the death wound of the statute, if at all. In view of the law as now laid down in the federal courts relative to.following the decisions of the highest court of the state respecting rules of property and actions, what is our duty in relation to the facts of this case? In State v. Gould, supra, the supreme court oí the state held that, in a direct proceeding to test the question of the passage of a similar law of the state in accordance with the constitutional requirements, the court would resort to the journals of the legislature in order to ascertain whether the law had been constitutionally passed. In Supervisors v. Heenan, supra, it was held that the court might inspect the original bills on file with the secretary of state, and have recourse to the journals of the legislature, to ascertain whether or not the law had received all the constitutional sanctions to its validity. There was an application for a writ of mandamus in that case by the supervisors of the county to compel the register of deeds to deliver to the board certain books and papers relating to the taxes of the county. The' application was made under section 9 of the act of August 13,1858. It was argued against the issuing of the writ that the act was unconstitutional, it not having been read on three different days in each house of the legislature, and twice at length, and not having been voted for by a majority of all the members elected to each house. The court examined the journals, and came to the conclusion that the act had been constitutionally passed. In State v. City of Hastings, supra, an application was so made for a writ of mandamus by the St. Paul & Chicago Railway Company, to compel the city of Hastings to issue certain bonds. The issue was authorized by Sp. Laws 1869, c. 34; but the city refused to issue the bonds, on the ground, as it claimed, that the senate in passing the bill did not comply with section 20, art. 4, of the state constitution, which reads as follows:

“Every bill shall be read on three different days in each separate house, unless in case of urgency two-thirds of the house where such bill is pending shall deem it expedient to dispense with this rule; and no bill shall be passed by either house until it shall have been previously read twice at length. ”

The court, speaking through Barry, J., said in that case:

“In Supervisors v. Heenan, 2 Minn. S30, (Gil. 281,) it was held that, upon an inquiry whether an alleged statute has been passed in accordance with the requirements of the constitution, the court may inspect the original bills on file with the secretary of state, and have recourse to the journals of the houses of the legislature, to ascertain whether or not the law has received all constitutional sanctions to its validity. The respondent’s claim in the case at bar is that in passing the special laws of 1869, c. 34, the senate did not comply with section 20, art. 4, of our state constitution, and that therefore said chapter is not a law. No other objection is made to the validity of the chapter mentioned, and to sustain this the respondent relies wholly upon the senate journal. The enrolled bill on file with the secretary of state is properly authenticated in accordance with section 21, art. 4, of our constitution, which provides that every bill having passed both houses shall be carefully enrolled, and shall be signed by the presiding officer of each house. The effect of a compliance with this direction of the constitution is to authenticate the bill; and, being thus authenticated, it is to be presumed to have passed in accordance with the requirements of the constitution. But under the rules laid down in Supervisors v. Heenan, supra, this presumption is not conclusive, but may be overthrown by a reference to the journals. Section 13, art. 4, of the constitution declares that no law shall be passed unless voted for by a majority of all the members elected to each branch of the legislature, and the vote entered upon the journal of each house. Section 5, same article, provides that the senate and house shall keep journals of their proceedings, and from time to time publish the same, and the yeas and nays, when taken on any question, be entered on such journals; and there are other provisions of the constitution specifically requiring certain facts to be entered upon the journals of the houses. Now, whatever might be the effect of the failure of the journals to show the entry of any of these matters specifically required to be entered, it is obvious that the presumption arising from the authentication of the enrolled bill under section 21 cannot be overcome by the failure of the journals to show any fact which is not required to be entered thereon. Of this character are the facts with regard to the reading of the bill under section 20. There is no provision of the constitution specifically requiring their entry upon the journal. For the respondent, it is argued that they are required to be entered by the latter clause of section 5, which declares that the two houses shall keep journals of their proceedings. ⅜ * * In the case at bar there is nothing in the journals to show that the provisions of section 20 were not complied with on the passage of the bill in question. From the foregoing consideration, it follows, then, that the presumption arising from the due authentication of the bill is not overthrown by the journals, and it is therefore to be taken to have passed in accordance with the directions of the constitution.”

Subsequently, at the January term of that court, an appeal from an order of the municipal court of Mankato was argued and submitted, but, before the court rendered its decision on this appeal, the case of State v. Gould, supra, was decided, and the appellant on said appeal moved the court to disaffirm the judgment appealed from, on the alleged ground that the court rendering it was not a legal court, and its judgment therefore a nullity; because the act assuming to establish it, to-wit, “An act of November 22, 1881., entitled ‘An act to establish a municipal court in the city of Mankato, Blue Earth county, Minnesota,’ did not receive a vote of two-thirds of the entire senate in its passage through that body, and consequently it did not pass in accordance with the requirements of the constitution, as construed by the court at this term in the case of State v. Gould. ” Upon the application to disaffirm, the court, speaking through Gilfillan, C. J., said:

“To establish the fact it [the Winona & St. Peter R. R. Co.] refers to the journal of the senate, and claims that the .courts take judicial notice of the •journals of the legislature in respect to the passage of bills. The plain tiff answers that the court, if not a de jure, was at least a de facto, court, and its acts and judgments cannot be impeached collaterally for want of legality in the court itself, nor its legal existence be called in question except in a direct proceeding on behalf of the state for that purpose, as was the case in State v. Gould. The argument of the defendant is that a judgment rendered without jurisdiction is void; that want of jurisdiction may always be shown; that if the legislative act under which the court assumes to act as such be void, there is a want of jurisdiction; and that, this act being void, there was no jurisdiction. Generally, if the record shows that a court has assumed jurisdiction over a matter not committed to it by the constitution or some valid statute, it may be inquired into, and the excess of jurisdiction corrected or annulled on appeal from its judgment. The defect here alleged is the non-existence in law of the court itself. That presents a somewhat different case from an exception to the right of a court admitted to exist to try particular matters. The latter is permitted, while public policy may prohibit the other.”

The court then discusses the doctrine of a & facto court. Further along in the opinion the court said:

“We may go so far as.to lay down this proposition, that, where a court or office has been established by an act of the legislature apparently valid, and the court has gone into operation, or the office is filled, and exists under such act, it is to be regarded as a defacto court or office; in other words, that the people shall not be made to suffer because misled by the apparent legality of such public institutions.”

Again:

. “The act in question having been authenticated in the proper manner, and approved by the governor, and the subject of it being within the constitutional power of the legislature, was, under the presumption cited in State v. City of Hastings, supra, prima facie a valid law, and the court it attempted to create prima facie a legal court. ”