Division of Howard County

15 Kan. 194

• Court: Supreme Court of Kansas
• Decided: July 15, 1875
• Status: Published

Opinion

The.opinion of the court was delivered by

Valentine, J.:

The only question involved in these three cases is, whether a certain act of the legislature entitled “An act to divide the county of Howard, and to erect the territoiy thereof into the counties of Chautauqua and Elk, to provide for the due organization of said counties, the filling of vacancies ,in offices, for the proper division .of the property and indebtedness of Howard county, and in regard to the taxes and records thereof,” approved March 5th 1875, (Laws of 1875, p. 148,) is sufficiently valid to accomplish its object; that is, to create the two new counties of Chautauqua and Elk out of the old county of Howard; or whether said act is wholly and absolutely void. Said act was house bill No. 54. Said bill was passed by the house in a legal and proper manner. It was then taken to the senate, where it was amended in several particulars, and as amended was then passed in a legal and proper manner. It was then returned to the house, but the house refused to concur in any of the several amendments. It was then returned to the senate, and the senate, by a vote by yeas and nays properly entered on the journal, receded from all its amendments. The bill was not passed by the legislature in any other manner than as above specified. The bill was then enrolled; but by a mistake of the enrolling clerk and the enrolling committee “Sec. 3” of the original bill was left out, and the numbers of sections 4 to 12 inclusive, of the original bill, were changed, and in the enrolled bill numbered respectively from 3 to 11. The bill as enrolled was properly signed by the chief clerk of the house, the secretary of the senate, the presiding officers of the two houses, and was then presented to the governor, who approved and signed the same, and it was then filed with the secretary of state, where it is now preserved. The published act is an exact copy of the enrolled bill, except that the signatures to the enrolled .bill are omitted in the published copy. After the enrolled bill was presented to the governor,'the committee on enrolled bills reported to the house that the bill was “correctly enrolled,” and that they had presented the same to the governor for his approval. The engrossed bill, as it passed the house, is also on file in the office of the secretary of state, but it is not signed by any person, and there is no record evidence of any kind whatever tending to show that it is in fact such engrossed bill. The only record evidence of any kind whatever showing what said bill No. 54 contained, in any of its stages from the time it was first introduced in the house until it was finally filed as an enrolled bill in the office of the secretary of state, is the enrolled bill itself. The journals of the two houses are entirely silent upon the matter, and the said engrossed bill, as we shall presently see, is not a record, nor a part of any record. An engrossed bill, in this state, is the bill as copied for final passage in either house. It is the bill, as copied before its passage, with the amendments made up to that time, and there may be one or more engrossed bills of each bill introduced; and each of these engrossed bills may be different from any of the others, for each engrossed bill simply represents the bill as the bill is when it is engrossed. The enrolled bill is the bill as copied after its final passage through both houses, and as it has passed both houses, and as presented to the governor for his signature and approval. There can be only one enrolled bill. Our laws with regard to preserving records of the proceedings of the legislature are as follows. The constitution, article 2, provides :

“Sec. 10. Each house shall keep and publish a journal of its proceedings. The yeas and nays shall be taken, and entered immediately on the journal, upon the final passage of every bill or joint resolution.

“Sec. 11. Any member of either house shall have the right to protest against any bill or resolution; and such protest shall, without delay or alteration, be entered on the journal.

“Sec. 14. Every bill and joint resolution passed by the house of representatives and senate, shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve it, he shall sign it; but if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal, and proceed to reconsider the same. If after such reconsideration, two-thirds of the members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the senate, by which it shall likewise be reconsidered; and if approved by two-thirds of all the members elected, it shall become a law. But in all such cases the vote shall be taken by yeas and nays, and entered upon the journal of each house.”

The statutes provide — Gen. Stat. 975, section 15, subdivision sixth:

“He [the secretary of state] shall be charged with the safekeeping of all enrolled laws and resolutions, and he shall not permit the same, or any of them, to be taken out of his office, or inspected, unless by order of the governor, or by resolution of one or both houses of the legislature, under a penalty of one hundred dollars.”

“Sec. 19. It shall be the duty of the secretary of state to cause the original enrolled laws and joint resolutions passed at each session of the legislature, together with an index containing the titles of the same, to be bound in a volume in a substantial manner, and in the order in which they are approved; and no other or further record of the official acts of the legislature, so far as relates to acts and joint resolutions, shall be required of said secretary; and he shall also cause the title thereof, with the session at which the same shall have been passed, to be written or printed on the back of such volume.”

The statutes require that the secretary of gtate shall publish the laws from these enrolled laws filed in his office. (Gen. Stat. 544, § 2.) The secretary of state is also required to publish the legislative journals. (Gen. Stat. 544, § 5.) It will be noticed, that the legislative journals and the enrolled bills are the only records required by law to be kept for the purpose of showing any of the legislative proceedings. There is no provision for preserving the engrossed bills as a record of the legislative proceedings. And as the legislative journals and the enrolled bills are, by law, records, and the only records of legislative proceedings, they must of course import absolute verity, and be conclusive proof as to whether any particular bill has passed the legislature, when it passed, how it passed, and whether it is valid or not. In many of the states, the enrolled bills alone are conclusive evidence upon this subject: Sherman v. Story, 30 Cal. 253; Evans v. Browne, 30 Ind. 514; Pangborn v. Young, 32 N. J. (3 Vrooms) 29; Green v. Weller, 32 Miss. (3 George) 650; Swan v. Buck, 40 Miss. 268; Pacific Rld. Co. v. The Governor, 23 Mo. 352; Eld v. Gorham, 20 Conn. 8; Duncombe v. Prindle, 12 Iowa, 2; Broadnax v. Grown, 64 N. C. 244, 247; Fouke v. Flemming, 13 Md. 392; Mayor v. Harwood, 32 Md. 471. See also in this connection, Miller v. The State, 3 Ohio St. 475, 479; The People v. Supervisors, &c., 8 N. Y. 317; People v. Devlin, 33 N. Y. 269; Supervisors v. People, 25 Ill. 181, 183; People v. Starne, 35 Ill. 121. In nearly every state from which the foregoing decisions are taken, and perhaps in' every one of them, they have constitutional provisions requiring that each branch of the legislature shall keep a journal of its proceedings. This is particularly true in California, Indiana, New Jersey, and Connecticut. And in every one of these states, except Connecticut, Ohio, New York, and Illinois, it is held that the final bill signed by the presiding officers of the two houses, and approved by the governor, usually called the “ enrolled bill,” is conclusive evidence of the proper passage of such bill, and of its validity. In Connecticut, in accordance with certain statutes in force there, the published laws on file in the office of the secretary of state, properly certified, are conclusive evidence of the passage and validity of such laws, notwithstanding that the constitution requires that legislative journals shall be kept arid preserved. Since the decision made in New York, reported in 33 N. Y. 269, 279 to 282, 283, we suppose it will hardly be claimed that the state of New York furnishes any authority for going behind the enrolled bills for the purpose of impeaching the law. In Illinois it is held, that, except for certain constitutional provisions in that state, “a bill signed by the speaker of the two houses and approved by the governor would be conclusive of its validity, and binding force as a law.” (People v. Starne, 35 Ill. 121, 135.) The principal constitutional provision referred to is as follows:

“On the final passage of all bills, the vote shall be by ayes and nays, and shall be entered on the journal; and no bill shall become a law without the consent of a majority of all the members elect in each house.” Const, of Ill. of 1848, Art. 3, § 21.

But the supreme court of Illinois has never held that the enrolled bills may be impeached by anything except by the legislative journals. And the legislative journals, even where they apparently contradict the enrolled bills, are not always sufficient to invalidate such enrolled bills. In the case of Supervisors v. The People, 25 Ill. 183, the supreme court of that state say: “The constitution does require that every bill shall be read three times in each branch of the general assembly before it shall be passed into a law, but the constitution does not say that these several readings shall be entered on the journals.” And therefore, said court held in that case that an act of the legislature was valid although the senate journal did not show that the bill had been read three times.

Now let us apply the doctrine of the supreme court of Illinois to the case at the bar. And the able and venerable counsel representing the parties claiming that said Howard county division-law is void, relied, in his argument upon the question, almost wholly upon an earlier decision of the supreme court of Illinois, to-wit, Spangler v. Jacoby, 14 Ill. 297. We have no constitutional provision requiring that a bill introduced into either house of the legislature shall in any of its stages be spread upon the journal of either house. We have no constitutional provision requiring that any record of any such bill shall be kept or preserved, except as it is kept and preserved in what we call the “enrolled bill.” The bill in this particular case (and this is true of all other bills,) was not in any .of its stages entered upon the journal of either house of the legislature. The journals in this case do not contradict the enrolled bill. They do not in any manner conflict with any presumption in favor of the validity of the enrolled bill. Nor do they furnish the slightest evidence that the bill was not legally passed by both branches of the legislature, or that it was not properly enrolled, or properly signed, by the presiding officers of the two houses, or that it was not properly approved, and signed by the governor, and properly filed away in the office of the secretary of state. Indeed, the report of the enrolling committee entered in the journal of the house does furnish some evidence that the bill was “ oorredly enrolled.” We do not think that we can resort to evidence outside of the enrolled bill, and outside of the journals of the legislature, for the purpose of impeaching the enrolled bill as a valid law. Of course, we take judicial notice, without proof, of all the laws of our own state. All the courts of the state are required to do this. And in doing this, we take judicial notice of what our books of published laws contain, of what the enrolled bills contain, of what the journals of the legislature contain, and indeed of everything that is allowed to affect the validity of any law, or that is allowed to affect or modify its meaning in any respect whatever. But in doing this, if it be merely for the purpose of taking judicial notice of our laws, we cannot take judicial notice of a fact which is not allowed to affect the validity or meaning of a law in any respect whatever; and such fact cannot even be proved to us for any such purpose. For instance, if the mistake in enrolling said bill No. 54 were allowed in any manner to affect the validity or meaning of the law, as enrolled and filed in the secretary’s office, we would take judicial notice of such mistake; but as such mistake (not being shown by any record) is not allowed to have any such effect upon the validity or meaning of said law, we can neither take judicial notice of the mistake, nor can it be proved' to us. Now as we have before intimated, the enrolled bills, and the legislative journals, being records provided for by the constitution, importing absolute verity, we cannot take judicial notice that they are untrue, nor can we even allow evidence to be introduced for the purpose of proving that they are not true. Therefore, as the enrolled bill of the law dividing Howard county, and the journals of the legislature, would seem to "prove that said bill had been legally passed by the legislature, and had been legally approved by the governor in the form as it now appears enrolled in the secretary’s office, we cannot take judicial notice that said bill was not properly so passed and so approved, and we cannot even allow evidence to be introduced showing that it was not so passed and so approved. We must therefore determine that the bill was legally passed and approved, and that it is now a valid law as it appears in the secretary’s office.

There were several other objections urged against the validity of said law, but, as we think, none of them are tenable, and all of them must therefore be overruled. We think that the provision of the constitution requiring that “The yeas and nays shall be taken, and entered immediately on the journal, upon the final passage of every bill or joint resolution,” (art. 2, § 10,) was sufficiently complied with. It would of course have been more formal if the senate, after receding from its own amendments, had again put the bill upon its final passage, and passed the bill without the amendments, as it had done with the amendments. But the manner in which this bill was passed has always been acted upon; and if we should now hold it insufficient we should probably invalidate a very large proportion of all the laws that have ever been enacted in Kansas. Upon this question see the case of The People v. Chenango, 8 N. Y. 318, 327, et seq.

The “subject” to be contained in a bill under § 16, art. 2, of the constitution, which provides that “No bill shall contain more than one subject, which shall be clearly expressed in its title,” may be as broad and comprehensive as the legislature may choose to make it. It may include innumerable minor subjects, provided all these minor subjects are capable of being so combined as to form only one grand and comprehensive subject; and if the title to the bill, containing this grand and comprehensive subject, is also comprehensive enough to include all these minor subjects as one subject, the bill, and all parts thereof, will be valid. (Bowman v. Cockrill, 6 Kas. 334, 335; Sedgwick Stat. & Const. Law, (2 ed.) 517, et seq.) The title to the bill now under consideration is, as we think, sufficient for the purpose of creating, upon equitable principles as to indebtedness, property and taxation, two fully-organized new counties, to be named Elk and Chautauqua, out of the old county of Howard; and this is really but one subject, which is the substance of the bill. We would also refer to the following authorities upon this question: Blood v. Mercelliott, 53 Penn. St. 391; Duncombe v. Prindle, 12 Iowa, 1; Brandon v. The State, 16 Ind. 197; Humboldt Co. v. Churchill Co. Comm’rs, 6 Nevada, 30. Even if § 10 of the act (Laws of 1875, page 152,) should be void, the rest of the act may be valid.

We think the legislature has thé power to abolish counties, and county organizations, whenever it becomes necessary for them to do so in changing county lines, or in creating new counties. Whether they could do so in any other case, it is not necessary for us now to determine. In the case of Hunt v. Meadows, 1 Kas. 90, it was held that an act of the territorial legislature, (Territorial Laws of 1861, page 17,) passed after the state was admitted into the union, destroying the county of Madison, was valid. In Iowa, in the case of Duncombe v. Prindle, 12 Iowa, 1, it was held that an act destroying the county of Humboldt, was valid. And we think such acts are valid. Of course, when a county is destroyed, the county-seat must go with it. The county-seat of an old county need not be made the county-seat of any new county, or indeed of any county, new or old, into which such county-seat may be placed by a change of county lines, or by the creation of a new county. For if such county-seat must continue to be the county-seat of the county into which it may be placed by a change of county lines, a county might some time by such change of county lines, have two or three county-seats. In this connection see Blood v. Mercettiott, supra; Atty. Gen. v. Fitzpatrick, 2 Wis. 542.

In two of the three cases at bar — that brought by Oberlander, as relator, against Wright and others, and that brought by McBrian, as relator, against Titus and others — judgment will be rendered in favor of the plaintiff, and peremptory writs of mandamus will be issued as prayed for. In the third case, brought by Powell and Barber, as relators, against Light, judgment will be rendered in favor of the defendant, and the peremptory writ of mandamus prayed for will be refused.

All the Justices concurring.