Evans v. Browne

30 Ind. 514

• Court: Indiana Supreme Court
• Decided: May 15, 1869
• Status: Published

Opinion

Frazer, J.

The following questions only, are necessary to be considered in order to reach a decision of this cause, viz: 1. Must the courts of this-State take judicial know-edge of what is and -what is not the public statutory law of the State? 2. 'When a statute is authenticated by the signatures of the presiding officers of the two houses, will the courts search further, to ascertain whether such facts existed as gave constitutional warrant to those officers to thus authenticate the act as having received legislativo sanction in such manner as to give it the force of law?

1. There are some cases in our reports in -which it has been conceded that an issue may be made upon the record by pleading, upon the determination of which, upon evidence adduced, the courts are to be governed in deciding what is a statute of the State; but a very full consideration of the question on the present occasion, aided by able counsel, has resulted in the clearest conviction that the doctrine has no support whatever in sound principle. Can it be tolerated that a court must be informed what the law is .by the verdict of a jury, as would be in criminal cases? that in -one case it shall be compelled, by the finding of an issue, to determine that the legislature has enacted thus and so, and in the very next case to be tried, where the same issue is not made by the pleadings, or the same evidence has not been produced, or another jury has found differently, the very same court must determine that there is no such statute? It is a maxim old as the common law, and a rule of necessity, that the court takes judicial notice of public law; it is presumed to know what it is, and it is its duty to know it. Even the private citizen must know it at his peril; and his responsibilities and duties are based upon the conclusive presumption that he has this knowledge. Must the court employ the machinery of a trial to give information to the judge, which, as a citizen, he must, at the risk, possibly, of his liberty or life, have possessed before he was called to the bench ? • It is a most mischievous departure from plain and wise maxims derived from that system of laws which forms the basis of, and constitutes largely the body of, ours; and, while it would have disturbed the harmony and order of judicial administration in England, it would in this State, in view of the provisions of our constitution, which contains specific directions for the mode of authenticating statutes by high legislative officers, acting under solemn oath, and requires a journal of legislative proceedings to be kept and published, bo entirely destitute of any conceivable utility. The enrolled acts, with their authentication, are deposited in a public office, and are there accessible to everybody. The journals are public documents, at least, if not records; and are also within reach of all. Whatever, affecting the question of a quorum, such as the resignation of members, may have been lodged with the Governor, may also be inspected. In short, every fact upon which, in any view, depends the question whether a document purporting to be a statute has, by legislative action, been invested with the force of law, is, in its nature, a public fact which may be easily ascertained; it is a fact of public current history, and there is therefore no necessity for bringing it to judicial knowledge by the finding of an issue. It may be true that, "* ordinarily, the courts would not, unless the matter was questioned, make any investigations beyond the statutoA book itself; but this argument is not forcible; for the industry and research of counsel can as well put the court upon inquiry by an argument and a reference to the sources of information, as by pleading upon the record. To us it seems an astonishing fact in- the history of jurisprudence, that there should, in this country especially, have ever existed a conflict of decisions upon the subject, or that it should have been seriously presented as a question for judicial determination.

In Skinner v. Deming, 2 Ind. 558, this question was virtually decided the other way, on the authority of Purdy v. The People, 4 Hill (N. Y.), 384. In Coleman v. Dobbins, 8 Ind. 156, there is a dictum to the same effect, though it is expressly declared that the point is not decided definitely. The judgment, however, implies such a decision, and cannot be supported otherwise than by this implication. These cases, and some others in our reports which concede the same point, have embarrassed us; but we cannot concur in them.

It is believed that this anomalous and essentially mischievous doctrine had its. origin in New York. After the subject had there become enveloped in uncertainty by a multitude of curious opinions delivered in Purdy v. The People, supra—a case from the report of which it is almost impossible to tell what was held by the majority to be law upon any subject, but in which the actual judgment of reversal in favor of the plaintiff' in error (who disputed the validity of the passage of an act, and yet did not raise the question by pleading) precludes the possibility of such a ruling — the Court of Appeals finally, in The People v. The Supervisors, &c., 4 Seld. 317, without giving any reason or citing any authority to sustain it, did distinctly lay down the doctrine, in a case where it was entirely unnecessary to have considered the question at all. The opinion in Coleman v. Dobbins cites Speer v. Plank Road Co. 22 Penn. St. (10 Harris) 376. That case is not to the effect supposed. Miller v. The State, 3 Ohio St. 475, decides nothing whatever upon the subject. It is probable, however, that this New York doctrine (now exploded in that State) has passed into other States, and been adopted without much examination. Indeed, whenever it is admitted that there is no certain and conclusive method by which the legislature is to make known its action, and the question, what is the statute law? is held to require search in all quarters for facts to answer it, it becomes quite plausible to say that these facts should bo ascertained by'an issue. When we come to consider the second question which we have proposed to ourselves, it will be seen that our view of it does not, however, involve us in that entanglement.

2. Immemorial usage, having the force of law, and therefore incumbent as a duty upon the presiding officer of a legislative body, requires that he should not proceed with business in the absence of a quorum. In case of doubt,he may count the members present, and thus ascertain the fact. A call of the house may be had in order to determine it. The very fact that the body proceeds with legislative business must therefore be, to all the world, very strong evidence of the presence of a quorum; for, if a quorum wei’e not present, then a duty imposed by parliamentary law upon the presiding officer has not been performed; and it is not becoming that one co-ordinate department of the government should thus condemn another. But this is not all. Of necessity, the body must, in the first instance, judge for itself as to the presence of a quorum. No other tribunal can so well ascertain the fact as itself; and it would seem scarcely fit, therefore, that the courts should be at liberty to enter into that investigation. It may be possible that the question of the presence of a quorum is a legislative and not a judicial question, and that the courts, in a ease like this, cannot inquire into it without passing beyond their jurisdiction as limited by the constitution, and thereby invading the field which belongs exclusively to the legislature. The form of our State government was intended to make these two departments co-equal but separate and independent of each other, each having distinct functions to perform, and wholly beyond the control of the other. Bnt these remarks are not intended as a decision of the point suggested, nor as an intimation of what would be its determination in a case where a solution of it might be necessary. The doubt is expressed as to our power to enter upon .the question, because it should, unless the matter is otherwise clear, have some little weight in the consideration of the inquiry whether we can look behind the official authentication made by the proper officers of the two houses. Courts should bo very careful not to invade the authority of the legislature. Tor should anxiety to maintain the constitution, laudable as that must ever be esteemed, lessen their caution in that particular; for if they overstep the authority which belongs to them, and assume that which pertains to the legislature, they violate the very constitution which they thereby seek to preserve and maintain. To person charged with official duties under the judicial department shall exercise any of the functions of the legislative department. Art. 3, sec. 1.

■The question in hand may now be approached more elosety, and, indeed, its importance only, and not at all any difficulties attending it, will justify the foregoing preliminary observations.

The constitution provides that a majority of all the mem- * bers elected to each house shall be necessary to pass every bill, and that all bills “so passed shall be signed by the presiding officers of the x’esjxective houses.” Art. 4. see. 25. The vote on the passage of a bill cannot, of course, be lawfully taken ixx the absexxce of a quorum. What, then, was the pux’pose in requiring this attestation by the presiding officers? Was it intended as an idle form? It is xxot fair so to assume. What possible object, then, was sought to be accomplished by it, unless it was to furnish evidence that the paper thus attested had been by the proper processes of each house clothed with the fox’ce of law — evidence upon the enrolled act itself which should be taken as authentication and px’ovo itself upon inspection? The act, the validity of which is here controverted, is thus attested by sworn public officers, in the form required by the constitution. It is important, certainly, that the question, whether the enactment of a statute is valid, shall be made capable of ready and correct solution, and that the evidence thereof shall be preserved, and that it shall not depend upon doubtful or conflicting evidence. When all arc bound to know the law, they should have the means of knowledge, and not merely reasons for conjecture, uncertainty, and doubt. It has been conceded in the argument for the appellant that the attestation in this case is probably prima facie sufficient to show a statute regularly and properly enacted, but contended that this only is the force of the au4 thentication required by the constitution. The houses must keep journals of their proceédings, which, however, are not, like the enrollment, required to be either attested or preserved (1 GL & II. 563); and it is argued that there is an appeal to these, from the official’ attestation of the presiding officers, and to the archives in the executive depart- ' ment. Would the journals be as satisfactory to the mind ? Such journals, it is notorious, are, and must be, made in haste, in the confusion of business, and are often inaccurate. Their reading is frequently omitted from day to day, so that those errors go without correction. They do not show the nature of the bill as introduced, but merely the amendments which have been proposed to it. They are not required to contain anything by which it could bo even identified and its passage traced. They are not required to show whether or not a quorum is present. Journals such as these had been kept by the legislature of this State from the begin.ning. The convention which framed the present constitution must be supposed to have had knowledge of these things. Can the opinion be entertained that they meant that the journals, necessarily imperfect and incomplete memorials, should, as evidence, override the solemn attestation of the passage of a bill, which they were so careful to require, by the presiding officers? Or can it be supposed that they meant that two records should be looked to as concurrent proofs of the same fact, and yet made no provision for guidance when these should happen to be in conflict? By what reason or analogy can we sustain ourselves in holding that the journal should override the signatures upon the enrolled act? Surely not because it is, in the nature of things, more likely to speak the whole truth upon the question in hand. Surely not because it is a rule that the truth of any other record in the world, attested as the law requires to make it proof, may be successfully combat-ted by something else, not made by law superior to the attestation of the proper officer.

This exact question has received the consideration of other American courts, who have thoughtfully and with careful steps reached the conclusion,that the authentication of the presiding officers of the legislature is conclusive evidence of the proper enactment of a law, and that they cannot look elsewhere to falsify it. State ex. rel. &c. v. Young, 5 Am. Law Reg. (n. s.), 679; Pacific R. R. Co. v. The Governor, 23 Mo. 353; Duncombe v. Prindle, 12 Iowa, 1; Eld v. Gorham, 20 Conn. 8; Fouke v. Fleming, 13 Md. 392; People v. Supervisors of Chenango, 4 Seld. 317; People v. Devlin, 33 N. Y. 269.

Some other blew York cases have been cited in the argument, as in conflict with the view which we have already expressed. "We do not so deem them, but if they were so intended, the recent one of The People v. Berlin, supra, shows that that doctrine is no longer maintained in that State.

■ It is believed that the English cases are, without exception, to the same effect — that the roll, called here the enrolled act, imports absolute verity, and therefore cannot be questioned. It is argued, however, that the English cases are not applicable here, for the reason that parliament did not keep, nor was it required to keep a journal of legislative proceedings. This argument is plausible, but it is, nevertheless, unsound. It assumes that the journal is in its nature equal or superior, as an instrument of evidence, to the authenticated enrollment. But we have seen that in its nature it is not so, and that it is not admissible to infer therefrom that it was intended as sufficient to overthrow the latter. If wo are correct in this, then the English cases upon the subject are entitled to great consideration.

But it is argued, that if the authenticated roll is conclusive upon the courts, then less than a quorum of each house may, by the aid of corrupt presiding officers, impose laws upon the State in defiance of the inhibition of the constitution. It must he admitted that the consequence stated would be possible. Public authority and political power must, of necessity, be confided to officers, who, being human, may violate the trusts reposed in them. This perhaps cannot bo avoided absolutely. But it applies also to all human agencies. It is not fit that the judiciary should claim for itself a purity beyond others; nor has it been able at all times with’ truth to say that its high places have not been disgraced. The framers of our government have not constituted it with faculties to supervise co-ordiuate departments and correct or prevent abuses of their authority. It canno.t authenticate a statute; that power does not belong to it; nor can it keep the legislative journal. It ascertains the statute law by looking at its authentication, and then its function is merely to expound and administer it. It cannot, wo think,, look beyond that authentication, because of the constitution itself. If it may, then for the same reason it may go beyond the journal, when that is impeached; and so the validity of legislation may be made to depend upon the memory of witnesses, and no man can, in fact, know the law, which he is hound to obey. Such consequences would be a large price to pay for immunity from the possible abuse of authority by the high officers who are, as we think, chai’ged with the duty of certifying to the public the fact that a statute has been enacted by competent houses. Human governments must repose confidence in officers. It may he abused, and there may be no remedy.

.Nor is there any great force in the argument which seems to be regarded as of weight by some American courts, that some important provisions of the constitution would be a dead letter if inquiry may not be made by the courts beyond the rolls. This argument overlooks the fact that legislators are sworn to support the constitution, or else it assumes that they will willfully violate that oath. It is neither modest nor just for judges thus to impeach the integrity of another department of government, and to claim that the judiciary only will be faithful to its obligations.

J. IF. Gordon, IF. Morrow, and N. Trusler, for appellant. T. M. Browne, S. E. Berldns, J. S. Harvey, N. Van Horn, J. E. McDonald, A. D. Roadie, and E. M. McDonald, for appellee.

It is finally suggested, in argument, that the endorsement upon the roll by the Governor and the statement by him attached thereto constitute a veto of the bill. This idea is wholly inadmissible, and, indeed, is expressly contradicted by those instruments. Certain facts are stated, but they are not made the basis of objection to the bill becoming a law. Both instruments must be looked to, to ascertain the intention of the executive.

Having reached the conclusion that the courts must, for themselves, ascertain what is the public law of the State, it follows that there was much unnecessary pleading in the case, and that the questions made by the demurrers were wholly immaterial, except simply the question, was the complaint sufficient? and, having determined that the courts cannot look beyond the enrolled act and its authentication, it results that the complaint was good in law, and that there is no available error in the record.

The case being thus disposed of without reaching the question — much and ahly discussed in the argument — what constitutes a quorum under our State constitution? there is no necessity, nor indeed propriety, in any consideration of that subject by this court upon the present occasion.

The judgment is affirmed, with costs.