Ex parte Wren

63 Miss. 512

• Court: Mississippi Supreme Court
• Decided: April 15, 1886
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

The right of the sheriff of Hinds County to detain the petitioner depends upon the validity of “ An act to amend §§ 557 and 585, Code of 1880, so as to increase the public revenue, and provide for the faithful collection of the same,” approved March 18, 1886, and published by authority as a law. Its validity as a law is assailed on the ground that, while it was signed by the president of the senate and the speaker of the house of representatives and by the governor, it is not to be accepted as a law, because by reference to the journals of the senate and house it appears that a bill with the title of the foregoing act was introduced in the house and passed and sent to the senate, which passed it with thirty-seven amendments, of which that numbered 34 related to that part of the bill which imposed the tax for the non-payment of which petitioner was arrested, and materially altered it, and that the bill was amended in other particulars by the senate and returned to the house, which concurred in these amendments, but the act as approved by the governor does not contain said amendment 34 and said other amendment particularly mentioned, but wholly omits both ; wherefore it is alleged that the bill signed by the governor was not passed by both houses, and, therefore, is not a law, or if a law in part, is not as to the part under which the petitioner is detained.

The question thus presented is not whether the journals of the senate and house of representatives are evidence, and may be resorted to as such in some cases and for some purposes; or whether the approval and signing by the governor of an act which was not passed by both houses would give it the force of law; or whether an alteration of an act passed by both houses and signed by the governor, after such signing, would affect it.

The precise question for decision is this: Is an act signed by the governor, after having been signed by the president of the senate and the speaker of the house of representatives in attestation of the fact that it had passed both houses, the sole evidence of its contents as passed by both houses, or‘may'resort be had to the journals or either to determine whether the bill as signed by the president of the senate and speaker of the house contains amendments which appear to have been adopted? in other words, whether the bill as signed by the presiding officers is that which was passed by both houses.

It is not questioned that a bill entitled as above passed both houses, and the dispute is whether the two houses consented to precisely the same provisions. It is a question as to the contents .and provisions of the bill.

There is great diversity of opinion on the general subject to which this question relates.

One view is that the legislature can act only as authorized by the constitution, and that the journals must show affirmatively conformity to the requirements of the constitution in the progress of a bill through its several stages to become a law, or else that it is not a law, and is to be so declared and treated by the courts.

Another is that mere silence of the journals as to those matters not required by tire constitution to be entered on them will not invalidate a bill passed by both houses, but a presumption will be indulged in favor of conformity to the constitution and the act will be upheld on that presumption; but if the constitution requires the entry on the journals of certain things, and they are not shown by the journals, or if the journals affirmatively show a failure to observe these provisions of the constitution which relate to the passing of bills, but are not required to be entered on the journals, the bill will not become a law.

A third view is that the enrolled act signed by the president of the senate and the speaker of the house of representatives and the governor is the sole expositor of its contents and the conclusive evidence of its existence according to its purport, and that it is not allowable to look further to discover the history of the act or ascertain its provisions.

There may be modifications of these several views, but they embrace substantially the different rules announced on this much mooted subject.

The first-mentioned has but feeble support. Its absurdity is so manifest as to have found few advocates. It degrades the legislature below the level of an inferior court of special and limited jurisdiction, and demands that its daily record of proceedings shall affirmatively show the existence of all those facts and conditions on which its power to act depends, and indulges no presumption in favor of its proper action, even as to matters over which its power to act is undoubted.

This view appears to have obtained a firm footing in Illinois, founded on a change in the constitution which was held to make that rule proper. As formulated in Barnes v. Starnes, 35 111. 121, the doctrine is that, “ when a bill has become'a law, there must be record evidence of every material requirement from its introduction until it becomes a law. And this evidence is found upon the journals of the two houses.” Similar utterances have been made elsewhere. It is evident that able judges in Illinois have been dissatisfied with the rule in that State. In the case just mentioned it is said, “ Were it not for the somewhat peculiar provision of our constitution, which requires that all bills, before they can become laAvs, shall be read three several times in each house, and shall be passed by a vote of a majority of all the members elect, a bill thus signed and approved would be conclusive of its validity and binding force as a law.” It Avas also said, “We are not, hoAvever, prepared to say that a different rule might not have subserved the public interest equally well, leaving the legislature and the executive to guard the public interest in this regard or to become responsible for its neglect.”

The second view mentioned has considerable support. There is a quite general concurrence in the proposition that mere silence of the journals as to those steps in the progress of a bill through the two houses, not required by the constitution to be entered on the journals, will not invalidate a bill, Avhich, in such case, avüI be presumed to have been passed in conformity to the constitution ; but among the courts holding to this second view there is not complete accord as to Avhen the failure of the journals to show entries required by the constitution to be made on them Avill invalidate an act of the legislature; nor is there harmony as to the scope of judicial %'ision beyond the enrolled act in the effort to ascertain the law.

This view puts the legislature on the footing of an inferior tribunal, with special authority to act in a prescribed state of case and manner, and presumes in favor of the regularity of its action in cases in which its action is not required to be shown by its record, and against it as to matters required to be of record on its journal, and decides against its action in the absence of such record evidence, as well as where its record shows affirmatively noncompliance with directions of the constitution as to the mode of exercising legislative power. This view is supported by Jones v. Hutchinson, 43 Ala. 721; Moody v. The State, 48 Ala. 115; Walter v. Griffith, 70 Ala. 361; Worthen v. Badget, 32 Ark. 496 ; Smithee v. Garth, 33 Ark. 17 ; Weill v. Kenfield, 54 Cal. 111 ; In re Roberts, 5 Col. 525; McCulloch v. The State, 11 Ind. 424; Berry v. R. R. Co., 41 Md. 446 ; Legg v. Mayor, 42 Md, 203 ; Supervisors v. Heenan, 2 Minn. 330 ; State v. Hastings, 24 Minn. 78 ; State v. Mead, 71 Mo. 266 ; Hull V. Miller, 4 Neb. 503; Judicial Opinion, 35 N. H. 579 ; Judicial Opinion, 52 N. H. 622; Fordyce v. Godman, 20 Ohio St. 1; State v. Platt, 2 S. C. 150; State v. Hagood, 13 S. C. 46; Osbourne v. Staley, 5 W. Va. 85.

The precise question in the case cited from 70 Ala. is whether the absence of an affirmative showing by the journals of matters not required by the constitution to be entered on them invalidated an act signed by the presiding officers of the two houses and the governor, and it was decided in the negative. No reference is made by the court in that case to the cases'in' 43 and 48 Ala., respectively, or either of them, and it does not appear how that learned court will decide the question now before us. We admit that the cases in 43 Ala. and 48 lb. are against our view, but they appear not to have commanded sufficient respect at home to have been cited in the case in 70 Ala.

The case in 54 Cal. Ill makes no mention of the case in 30 Cal., in which the contrary doctrine is held, and contains no satisfactory reason for the conclusion reached.

The cases in 41 and 42 Maryland are peculiar, and when considered in connection with Fouke v. Fleming, 13 Md, 392, and Mayor v. Harwood, 32 Md. 471, cannot be considered as putting Maryland among the States whose courts permit the enrolled act of the legislature to be overthrown by the journals. In the latest case cited the court said: “ Nor do we decide in this case that the journals of the two houses, though required by the constitution to be kept as records of their proceedings, would be evidence per se upon which the validity of a statute having the required authentication could be successfully questioned as to the manner of its enactments. But we think the journals, in connection with other competent evidence upon the subject, may be examined as means of information to aid in arriving at a correct conclusion as to what was the action of the legislature on any particular bill before it.”

It-is observable also that the constitution of Maryland expressly requires that every bill shall be “ actually engrossed for a third reading,” and the code of that State declares the journals evidence.

In both the Minnesota cases the acts of the legislature were upheld. The case in 11 Ind. was overruled by Evans v. Browne, 30 Ind. 514. The decision reported in 20 Ohio St., supra, is rested on Miller v. State, 3 Ohio St. 475, the opinion in which by Thurman, C. J., we submit, strongly supports our view.

State v. Platt, 2 S. C., was decided by a divided court, and the dissenting opinion is far more satisfactory than that of the majority of the court. In State v. Hagood, 13 S. C., the doctrine of the former case was followed in deference to stare decisis, but an able opinion shows the error of the former ruling.

The third view mentioned above meets our unqualified approval, because it is the simplest, the surest to avoid errors and difficulties, in accord with the constitution, and supported by an array of authority and a cogency of argument that commands our fullest assent. Every other view subordinates the legislature and disregards that coequal position in our system of the three departments of government. If the validity of every act published as law is to be tested by examining its history, as shown by the journals of the two houses of the legislature, there will be an amount of litigation, difficulty, and painful uncertainty appalling in its contemplation and multiplying a hundred fold the alleged uncertainty of the law. Every suit before every court where the validity of a statute may be called in question as affecting the right of a litigant will be in the nature of an appeal or writ of error or bill of review for errors apparent on the face of the legislative records, and the journals must be explored to determine if some contradiction does not exist between the journals and the bill signed by the presiding officers of the two houses. What is the law is to be declared by the court. It must inform itself as best it can what is the law. If it may go beyond the enrolled and signed bill and try its validity by the record contained in the journals, it must perform this task as often as called on, and every court must do it. A justice of the peace must do it, for he has as much right and is as much bound to preserve the constitution and declare and apply the law as any other court, and we will have the spectacle of examination of journals by justices of the peace and statutes declared to be not law as the result of tlieir journalistic history, and the circuit and chancery courts will be constantly engaged in like manner, and this court will, on appeal, have often to try the correctness of the determination of the court below as to the conclusion to be drawn from the legislative journals on the inquiry as to the validity of statutes thus tested. It is difficult enough often to say what an admitted statute means, and while we would not shrink from the investigation of all questions of fact on the existence of which any statute depends, we decline to review the legislative records to try the regularity of its action as to the manner of exercising its constitutional authority to enact laws, over which its power is as plenary as that of this court as to the manner in which it shall exercise its jurisdiction.

The rule which we announce as the correct one is supported by Sherman v. Story, 30 California 253 ; People v. Burt, 43 California 560; Evans v. Browne, 30 Indiana 514; Koehler v. Hill, 60 Iowa 543; Company v. Richoux, 23 La. An. 743; Mayor v. Harwood, 32 Md. 471; Railroad Co. v. Governor, 23 Mo. 353; Swann v. Buck, 40 Miss. 268; State v. Swift, 10 Nevada 176 ; Pangborn v. Young, 32 N. J. Law 29 ; People v. Devlin, 33 N. Y. 269 ; Brodnax v. Groom, 64 N. C. 244.

There are other cases supporting the opposite views, but we have cited the most important on both sides.

The English rule is conceded to be that for which we contend.

The fundamental error of any view which permits an appeal to the journals to see if the constitution has been observed in the passage by both houses of their enactments, is the assumed right of the judicial department to revise and supervise the legislative as to the manner of its performance of its appointed constitutional functions. It is the admitted province of the courts to judge and declare if an act of the legislature violates the constitution, but this duty of the courts begins with the completed act of the legislature. ' It does not antedate it. The legislature is one of the three co-ordinate and co-equal departments into which the powers of government are divided by the constitution, possessing all legislative power and not subject to supervision and control during its performance of its constitutional functions, nor to judicial revision afterward of the manner in which it obeyed the constitution its members are sworn to support. From necessity the judicial department must judge of the conformity of legislative acts to the constitution, but what are legislative acts must be determined by what are authenticated as such according to the constitution.

That instrument contains many provisions as to the passage of bills which are admitted to be addressed to legislators exclusively, and for non-observance of which there is confessedly no remedy which courts can apply. Why should' a distinction be drawn between the different -provisions of the constitution, and some be held mandatory and others directory? There is no reason for such a distinction, and it is the offspring of a necessity born of the error of regarding any of the provisions of the constitution addressed to and obligatory on the legislature as enforceable by the courts as supervisors of the legislature. The sound view, and that which avoids the inconsistency of the distinction méntioned, is to regard all of the provisions of the constitution as mandatory, and those regulating the legislative department as addressed to and mandatory to that body, and with which the courts have nothing to do in the way of revision of how the legislature has performed its duty in the matters confided exclusively to it by the constitution.

Let the courts accept as statutes, duly enacted, such bills as are delivered by the legislature as their acts authenticated as such in the prescribed mode.

. The language of the constitution, § 23, art. iv, is : Bills may originate in either house, * * *■ and every bill shall be read on three different days in- each ■ house; unless, etc., * * * and every bill, having passed both houses, shall be signed by the president of the senate and the speaker of the house of representatives in open session.”

“ Section 24. Every bill which has passed both houses shall be presented to the governor of the State.” Is it not manifest that the requirement that the bills which have passed both houses shall be signed, by their presiding officers, ■ in open session, was designed as an official attestation of the fact of such passage, and a solemn and unimpeachable authentication of the bills passed by both houses, an assurance of their identity and of the fact that they had been passed by both houses, in the manner required by the constitution ? Thus attested, every bill is to be presented to the governor. Must he search the journals to guard against a disregard by the legislature of the constitution as to the manner of legislating, and to avoid giving approval to an act passed without a due observance by the legislature of its provisions?

Is every person on whom the law operates to look beyond the enrolled act duly signed as required by the constitution, to see if the journal nullifies what appears by the act thus attested ? The proposition is monstrous, and the recognition of such a doctrine is full of mischief, without any compensating advantage. But, it is said, the courts are guardians of the constitution, and if they do not look into the history of legislative doings that department may disregard the constitution as to the manner of passing laws. True, the courts are guardians of the constitution in the performance of their duty to decide causes, and should not shrink from declaring an act of the legislature enacted precisely in the mode prescribed by the constitution void if its provisions violate it; and, on the other hand, the courts should not arrogate the unconstitutional prerogative of reviewing and revising the course of legislative procedure in passing bills in the exercise of its clearly conferred right to pass them by virtue of an instrument containing injunctions binding on it, and sought to be enforced by the oath required of members, and not committed to the courts.

Undoubtedly the journals may be evidence, and may be resorted to in some cases, and must be as to some matters. They were properly looked to in Gardner v. The Collector, 6 Wallace 499, in' the effort to fix the date of approval of a bill by the president. They must furnish the evidence that a bill returned by the governor without his signature and with his objections was so dealt with as to become a law, for it is only by the approval by two-thirds of both houses, determined by yeas and nays entered on the journal of each house, that such a bill can become a law, and as the constitution so provides, and has not prescribed any means of attesting or authenticating the concurrence of those requisites to such a bill becoming a law, it rests, necessarily, on the journal, which must show that, although the bill was not signed by the governor but returned with objections, it nevertheless became a law according to the constitution. The case is peculiar and extraordinary, and not governed by the rules applicable to the ordinary case where the governor signs the bill. The provision for the signing of bills by the presiding officers does not apply here, and whether the bill on reconsideration became a law may depend on those things prescribed, and which cannot be shown except by the journals of both houses. Had the constitution provided any means of authentication of such action by the two houses as to make a bill returned by the governor with his objections a law, it would have been exclusive, but in the absence of such provision the journals are the memorial of the action which converts a bill returned by the governor with his objections into a law.

The constitution provides for its amendment, and contains specific provisions on the subject. The provision is that, “ Whenever two-tbirds of each branch of the legislature shall deem any c.hange, alteration, or amendment necessary to this constitution, such proposed change, alteration, or amendment shall be read and passed by a two-thirds vote of each house respectively, on each day for three several days; public notice shall then be given,” etc. This is aside from the ordinary business of legislation. It is not legislation, it is a proposal by two-thirds of each house to amend the constitution. It is not called a bill by the constitution, for a bill is a proposed law, and this is not. This is a proposition, originated as provided, to the qualified electors for them to vote on.

It is not required to be signed by the president of the senate and the speaker of the house of representatives, for the provision on that subject relates to bills for the enactment of laws. A proposed amendment to the constitution is not required to be presented to the governor. He has nothing to do with a proposal to amend the constitution. Only such bills are to be presented to him as he may make laws by approval and signing, or by not returning them. This is unmistakably true, and yet in the case of Green v. Weller, 32 Miss. 650, the plain distinction between- the enactment of laws by passing bills, and proposing an amendment of the constitution was not adverted to.

The proposal to amend the constitution was spoken of as passing a bill, and stress was laid on its having been signed by the presiding officers of the two houses and by the governor. Certainly, their signing not being required by the constitution, had no virtue. As to a proposal to amend the constitution, the journals of the two houses are by the constitution made the only evidence of the proposal by the required number of each branch, and they should show what the constitution prescribes as to this.

In the case cited Judge Handy was clearly right on the general question as to the enrolled bill being conclusive evidence in the enactment of laws, but he was as clearly wrong in applying that wholesome rule to a proposal to amend the constitution; and Judge Smith was clearly wrong as to the rule as applied to- laws, but right in claiming that the journals were to be looked to as the memorial of the proposed amendment to the constitution, if it was a question for the court to decide.

Were the question before us it is not improbable that we should concur in the view of Judge Fisher, as reported in the appendix of 33 Miss. Beports, and hold that the power to propose amendments of the constitution is confided to the legislature, and that it is a matter between the people and the legislature, and that there is no authority in the courts to revise the conjoint action of the legislature and the qualified electors. The question is political and not judicial, and for the determination of the political department of the government.

The case of Green v. Weller, supra, although by a divided court, was published as placing Mississippi in line with those who make the enrolled bill duly signed conclusive evidence of its existence and contents, and in the case of Swann v. Buck, 40 Miss. 268, the former case was cited, and the rule announced as settled in accordance with this view. This was then considered to be the settled doctrine in this State. In 1869 a new constitution was adopted in this State, and it contains substantially the provisions of the former constitution in the particulars mentioned, without any change to indicate a new rule on the subject being considered. In Brady v. West, 50 Miss. 68, this court pronounced “ an act to regulate the fees and salaries of public officers ” void, because it was “evident from an inspection of the enrolled' bill as signed by the governor and deposited in the office of secretary of state, that it was not the bill passed by the legislature,” and the former doctrine in this State, and with reference to which it may be assumed the constitution was framed and adopted, was departed from, and views were announced which we regard as unsound and mischievous in their tendency. That case is now overruled. We decline to decide upon the guilt or innocence of the appellant, and remand him to the custody of the sheriff to be proceeded against as provided by law, when, upon the plea of not guilty, the question of guilt or innocence will be presented.

Affirmed.