Norman v. Kentucky Board of Managers

20 S.W. 901, 93 Ky. 537, 1892 Ky. LEXIS 137

• Court: Court of Appeals of Kentucky
• Decided: December 9, 1892
• Status: Published

Opinions

CHIEF JUSTICE HOLT

delivered the opinion op the court.

The questions in this case are of supreme importance. Thé President of the State Board of Managers of the "World’s Columbian Exposition presented a proper order to the appellant, the State Auditor, for a warrant upon the State Treasurer for a portion of the one hundred thousand dollars claimed to have been appropriated by an act of'the Legislature to make an exhibit of the resources of our State at the exposition.

The Auditor, acting no doubt from a conscientious desire to properly discharge his duty, and under the advice •of the Attorney-General, who is by law his legal adviser in such matters, refused it, and this is an action for a mandamus to compel him to give it.

It is said, in limine, that he has no personal interest in the matter; and being a ministerial officer can not refuse to issue it upon the ground that the Legislature could not constitutionally make the appropriation, or that the ■act was not constitutionally passed. In short, that his only duty was obedience, and that he has no standing in •court.

It is a general rule that a court will not listen to one who says a legislative act is unconstitutional, unless his rights are involved, or he has a right to question it. Section 230 of our new Constitution,however, says: “No money shall be drawn from the State Treasury except in pursuance of appropriations made by law;” and our statute forbids the issue by the Auditor of a warrant upon the. Treasury “ unless the money to pay the same has been appropriated by law.” (Gen. Stat., chap. 6, art. 1, sec. 6.) If the act of the Legislature be void for want of power to pass it, or because it was not passed in the manner required by the Constitution, then it is not law; and the Auditor is vested with such power and occupies such ' a position that it is not only his right, but his duty, whenever he is called upon to order the payment of money out of the Treasury, to inquire whether it is being done legally. He is, in a certain sense, a trustee, and the public interest requires that his office should give him the right to question the validity of a legislative act under which, by means of his warrant, the public money is to be expended.

The right to the mandamus is denied by him, first, upon the ground that the Legislature had no power to make-file appropriation. It is urged that it is not for a public or governmental purpose. Our Constitution says: “ Taxes, shall be levied and collected for public purposes only.” (Section 171.) It is often difficult to draw the line which bounds constitutional taxation, or to determine whether the purpose is one in aid of which the taxing power may be invoked, or the money thus raised expended. If it be doubtful, and the Legislature has seen proper to exercise the power, the judiciary should not interfere. The-doubt is then to be solved in favor of the legislative action. The object in this instance, however, is to exhibit the resources and progress of the State. It is not to promote the interest of one or a few individuals, and perhaps, incidentally, that of the public; but the purpose is. public in character and calculated and intended to benefit the entire State. Our Legislature has repeatedly heretofore, and running through many years, appropriated money for like purposes, and its power to do so is now for the first time questioned. It was done in 1876 for the Centennial Exposition at Philadelphia, and later for the one at New Orleans. This was well known to the framers of our present Constitution, adopted in 1891, and had it been intended to forbid the exercise of the power by the Legislature for such purposes, it would no doubt have been done in unmistakable terms. In our opinion it contains no such provision. It is not a loaning of the credit of the State-, and, therefore, forbidden by it. The commissioners selected to expend the money are merely the State’s agents to do so and provide the exhibit for the benefit of its people. The Legislature had the power to provide the means for such a purpose, but in doing so was bound to act in conformity to the Constitution. The troublesome question in the case is whether it has done-so, and what is the duty and power of this court as the parties present themselves. The Auditor claims that it has not, and this is the second ground of his defense.

Section 46 of our Constitution provides: “No bill shall become a law unless, on its final passage, it receives the votes of at least two-fiffchs of the members elected to each House, and a majority of the members voting, the vote to be taken by yeas and nays and entered in the journal: Provided, Any act or resolution for the appropriation of money, or the creation of debt, shall, on its final passage, receive the votes of a majority of all the members elected to each House.” The act originated in the Senate, and passed that body upon a yea and nay vote,, entered upon its journal, by the required majority. It then went to the .other House, where, after being amended, it passed upon a like vote, entered upon its journal, by a like majority. It then came back to the Senate, where the amendments were concurred in without a yea and nay vote, and without the vote of a majority of the members elected.

It is conceded by the counsel for the appellees, and seems plain, that this mode of proceeding did not conform to the Constitution. It complied with it in neither letter nor spirit. The object of the section above cited was to have the assent of a majority of all the members elected to each House to all the provisions of the act, and that this should appear by a yea and nay vote entered upon its journal. If a bill, after passing one House in the proper manner and then, after amendment, passing the other House in like manner, could come back to the House in which it originated and be adopted by a majority •of those voting, or a quorum, it would defeat this object and render the section ineffectual. Let us look at it practically. An appropriation bill of one hundred dollars •originates in the Senate and is properly passed. It goes to the House, where it is amended by making the sum ten thousand dollars, and is then properly passed by it. It returns to the Senate for concurrence, and is adopted as amended by a majority of those present without a yea and nay vote. Can it be well contended that this would be a compliance with the Constitution? If so, then there being thirty-eight Senators, it would require twenty, or a majority of them, to pass a bill for a trifle, but after being .amended in the House, so as to perhaps bankrupt the Treasury, it could be concurred in by the Senate by the votes of eleven members, or a majority of a quorum; and in case of the House with its one hundred members, it would require fifty-one to pass the bill, if it originated there, but only twenty-six, or a majority of a quorum, to concur in it after it had been changed in like manner by the Senate. Further illustration seems needless.

It is true it has been held that the “ final passage ” of a bill means when it first passes the body, and not when it returns to it, after amendment, for adoption; and it is said that the constitutional provision as to the number of votes, and the entry of the yea and nay vote on the journal, does not apply to amendments or the reports of conference committees. If so, then no matter how material the change, a majority vote of a quorum may pass the bill. The words “final passage,” as used in our Constitution, mean final passage. They do not mean some passage before the final one, but the last one. They do not mean the passage of a part of a bill, or what is first introduced, .and which may by reason of amendment become the least important. If so, then the body may pass what is practically a new bill in a manner counter to both the letter and spirit of the Constitution. When the bill was voted on in the Senate as amended, and after its return from the House, there never was any further action by the Senate. It was the final vote, and, therefore, its final passage; and being so, a majority vote of all the members elected, with an entry by yea and nay vote upon the journal, was necessary to its constitutional enactment. The bill, as approved by the Speakers of the two Houses and by the Governor, never was passed by the Senate by a majority of all its members, nor by a yea and nay vote. It is said, however, upon the one side, that having been enrolled, signed by the presiding officer of each House and approved by the Governor, the act must be conclusively presumed to have been constitutionally enacted; that public policy requires this rule, else confusion will result by our statute law being reduced from a state of certainty to one of doubt. Upon the other side it is urged, with equal ability, that a prima facie case only is thereby presented, and that resort may be had to the journals of the Legislature, which are required by the Constitution to be kept, and are kept, under the supervision of all the members, as to the truth of the matter.

Each position is supported by numerous authorities, and whether the one rule or the other obtains, more or less abuse and danger may result. There is some dynamite either way, but perhaps not as much in the latter as some apprehend, as the party questioning the enrolled and approved act must at the outset overcome a prima fade case.

The first view is the English one, where there is no written Constitution. It has been followed by our Supreme Court, and by at least nine of the Supreme Courts of the States. The weight of authority in this country, as declared in perhaps as many as nineteen States, is, however, the other way. All agree that the enrolled and approved bill can not be impeached bjr loose papers or parol evidence. Public policy forbids it. Too much mischief would result. A review or citation of the numerous cases is unnecessary. They have been examined. The most, if not all of them, will be found cited in the notes on page 135 of Cooley’s Con. Limitations, and to the case of Field v. Clark, 143 U. S., 661. It is not necessary, however, to a proper determination of this case to decide this question. It would, at most, be settling a mere rule of evidence, not prescribed by constitution or statute, and subject to exception and modification by the courts. If it had heretofore been prescribed, it would not control this case. Here no property rights have become fixed, no interests vested; but two parties, each the agent of the State, are contending for the control of a fund, and we must consider this case as it is presented. The court is asked to exercise its power and compel the Auditor to comply with an act of the Legislature which the Constitution required should be passed in a certain way. If the answer of the Auditor merely averred that it was not a law, or denied its existence, or that it had not been constitutionally passed, this would be merely pleading a legal conclusion. It would need no denial. The failure to do1 so would not be an admission of its truth. A court takes judicial notice of and determines for itself the law. You can not aver or prove a public statute. Thus, although a pleading may purport to state its terms or effect, but do so incorrectly, a demurrer does not admit the averment. (Pennie v. Reis, 132 U. S., 464; Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S., 569.) The court tries the question as one of law, and a demurrer admits as true only averments of facts well pleaded, and not legal conclusions.

The answer of the Auditor, however, sets out the steps connected with the passage of the act. It states what was done and what was not done. It avers the facts connected with its passage and files as a part of it a copy made by the Public Printer of the journal of the Senate relating to it. These facts, as to the manner of its passage, were admitted by a general demurrer. They show the act when it came back to the Senate, after amendment, was not voted for by a majority of all the Senators, and that a yea and nay vote was not taken. It-was not, therefore, constitutionally, passed; and yet the court is asked by the appellees' to use its power to enforce it by mandamus when, by their demurrer to the answer and failure to plead, they are to be regarded as agreeing that this is true.

A court, when asked to exercise its power by means of mandamus, should regard the substance and not the shadow. Its use is confined to those cases where the law has given no specific remedy, and where in justice and good government there ought to be one. It is summary in character, and may be resorted to when injustice is about to be done. A court should, in its discretion, grant it only when it is essential to this end. The petitioner must have a clear right and no other appropriate remedy to prevent injustice and wrong. It is defined in our Civil Code as an order “ to perform an act, or omit to do an act, the performance or omission of which is enjoined, by laxo,” and is the instrument of a court of law as much as an injunction is that of a court of equity. Cases may be found where it has been refused in the exercise of a proper discretion, although the petitioner had a clear legal right; and it is to be granted or withheld in the discretion of the court as the purposes of justice may require. This being the end and object of the writ, it should not be granted to afford relief which the party claims by virtue of an act confessed by him to be unconstitutional. The attitude of the appiellees and the nature of the relief asked must be considered. Although the appellees, like the Auditor, represent the State, yet they demur to the answer, saying, you can not go behind the enrolled bill, nor consider the admitted facts sot out in the answer; the intended effect of this being to prevent a decision as to the validity of the act. Their action can not be disregarded when asking this writ.

The provision of the Constitution is mandatory; and when this court is called upon to exercise a power, respect for a co-ordinate department of the Government can not be suffered to override the fundamental law by virtue of which both act and exist. A constitutional rule is not only for the Legislature, but this and all other courts. We must exercise our power with fidelity to it; and when we are urged to hold that the signatures to the act import what is confessed by the party asking relief to be untrue, and to -enforce as law an act plainly in violation of the Constitution, the court, in the exercise of its discretion in the use of this writ, should withhold it.

Our personal wishes in the matter can not be consulted. If the people desire this appropriation made,- the Legislature will doubtless do so; but nothing connected with the matter is more important to all than that it shall be done according to law. It is manifest the answer can not be truthfully denied; this was in substance admitted, upon the argument of the cause, by the appellees’ counsel.

Under this state of case it is proper to reverse the judgment, with directions to dismiss the petition, and it is so ordered.