Ritchie v. Richards

47 P. 670, 14 Utah 345, 1896 Utah LEXIS 99

• Court: Utah Supreme Court
• Decided: December 21, 1896
• Docket: No. 764
• Status: Published

Opinions

Zane, C. J.:

The plaintiff is one of the judges of the Third judicial district of the state of Utah, appointed by the governor on June 1st to fill the vacancy caused by the resignation of Judge Le Grand Young, whose term of office extended to the first Monday of January, 1901. In pursuance of an act entitled “An act relating to and making sundry provisions concerning elections,” in force April 5, 1896' (Sess. Haws Utah 1896, p. 369), and of an act in relation to elections, defining offenses against the same, and prescribing punishments therefor, in force March 28 (Id. p. 183), a general election was held on the 3d day of November of that year, at which a person was elected to fill the vacancy so held by the plaintiff. The plaintiff asks the court to issue a writ prohibiting the defendants from canvassing the returns of the election of his successor, held and conducted according to those laws. The plaintiff insists that they are void, and that, therefore, the writ should issue. The journals of the legislature do not expressly show how the votes were taken on the final passage of the bills, but the plaintiff claims that the entries authorize the inference that they were viva voce. The fact is entered upon the journals of the respective houses that the presiding officer of each house over which he presided signed both bills.

It is conceded that the bills were properly enrolled, signed by the presiding officer of each house, and approved and signed by the governor, and duly filed in the office of the secretary of state. The defendants insist that these bills, so authenticated, should be deemed complete and unimpeachable; that such authentication furnishes conclusive evidence that the legislature complied with all requisite constitutional provisions in their enactment, and that they were duly enrolled, signed, approved, and deposited in the public archives.

Section 14 of article 6 of the state constitution declares that “each house shall keep a journal of its proceedings, which, except in cases of executive sessions, shall be published, and the yeas and nays on any question, at the request of five members of such house, shall be entered upon the journal.” This section requires the yeas and nays upon any question to be entered on the journals upon the request of five members. If such entry had been required for evidence of the passage of the bill, it would not have been made to depend on a request. The purpose of this entry appears to be for future reference and publicity, that the members may act under a consciousness of their responsibility to their constituents and to the public. Section 22 of the same article provides: “The enacting clause of every law shall be: Be it enacted by the legislature of the state of Utah, and no bill or joint resolution shall be passed, except with the assent of a majority of all the members elected to each house of the legislature, and after it has been read three times. The vote upon the final passage of all bills shall be by yeas and nays; and no law shall be revised or amended by reference to its title only; but the act as revised, or section as amended, shall be re-enacted and published at length.” This section prescribes the enacting clause of every law, and requires the assent of a majority of all the members elected to each house thereto after it has been read three times, and a vote by yeas and nays upon its final passage; and forbids the revision of any law by reference to its title, but requires the act revised, or section as amended, to be enacted and published at length. This section does not expressly require the yeas and nays to be entered on the journals, nor does it say by what means the acts specified shall be evidenced. Section 24 of the same article declares: “The presiding officer of each house in the presence of the house over which he .presides shall sign all bills and joint resolutions passed by the legislature, after their titles have been publicly read, immediately before signing, and the fact of such signing shall be entered upon the journal.” This section requires the title of each bill passed to be publicly read in the presence of each house, and the bill to be then signed, and the fact of signing to be entered on the journals. Section 8 of article 7 of the same instrument so far as necessary to quote it, is: “Every bill passed by the legislature before it becomes a law, shall be presented to the governor; if he approve, he shall sign it, and thereupon it shall become a law.” This provision, in effect, says that every bill passed by the legislature becomes a law upon being signed by the governor, but it does not say how the passage of a law shall be evidenced.

Constitutional provisions prescribing modes of enacting laws should be observed. But whether the proof of such observance consists of the enrolled laws deposited in the office of the secretary of state, duly signed by the presiding officers of the respective houses, and with the approval and signature of the governor, or of the entries found on the journals of the respective houses, furnishes a question as to which the courts of last resort in the various states'differ. Objections may be urged to either means of proof. Minutes and memoranda may not always be correctly transcribed upon the journals. And the minutes and memoranda are sometimes made amid circumstances calculated to confuse and distract the attention, and to divert it from the business in hand. Bills may sometimes be enrolled, and signed by presiding officers, and approved by the governor, that have never been duly passed. Either source is subject to possible error. Courts and lawyers will differ as to which is the surest and best source of information. However, when statutes are published people shape their actions and conduct with respect to them; they incur obligations, acquire rights, and discharge duties in reliance upon them. If such a law, in any instance, should turn out to be void, because some requirement of the constitution had not been observed in its passage, great injustice would be likely to follow. We must.regard the enrolled bill, duly signed, approved, and deposited in the public archives, as a more accessible and convenient source of authentication, and, if referred to, less liable to overturn law, and quite as reliable as the journals of the two houses. The people ought not to be required to ransack such journals to ascertain whether laws have been duly passed, and they cannot be expected to do so. Nor should lawyers, before advising clients, be required to search such journals. Statutory enactments should not depend nor stand upon such a sandy and uncertain foundation, if a better one can be found. Laws evidenced by the signatures of the presiding officers, and the approval and signature of the governor, and the filing in the public archives, ought not to be overthrown by memoranda on the journals which the constitution does not require to be made.

We are of the opinion that the enrolled bill, duly signed, approved, and deposited in the office of the secretary of state, is quite as reliable, and more accessible and convenient than the entries, or the absence of entries, of legislative action shown by the journals of the two houses, and, if relied upon as unimpeachable, will be less liable to overturn laws upon which the people have relied, and under which they have acquired rights, incurred obligations, and performed duties,- — less liable in that way to cause litigation and confusion. The question involves consideration of public policy. In Lafferty v. Huffman (a late case decided by the Kentucky court of appeals), 35 S. W. 123, the objection to the law was “that on the final passage in the senate of the bill, as amended in the other house, the vote was not taken by yeas and nays.” After a thorough examination of the question, similar to the one now under consideration, the court said: “From every point of reason, therefore, we are convinced that the enrolled bill, when attested by the presiding officers as the law requires, must be accepted by the courts as the very bill adopted by the legislature, and that its mode of enactment was in conformity to all the constitutional requirements. When so authenticated, it imports absolute verity, and is unimpeached by the journals. When we look to the authorities, we find, as indicated before, a great diversity of opinion. They are too numerous to be reviewed here. We notice, however, that the more recent cases are adopting the English rule, and holding: the enrolled bill conclusive. In several of the cases, where the courts felt constrained to follow their former rulings, bolding tbe journals competent, regret is expressed that a different rule bad not prevailed.” Warren v. Board (Mich.), 40 N. W. 553; State v. Young, 32 N. J. Law 29; Sherman v. Story, 30 Cal. 253; State v. Swift, 10 Nev. 176.

In Field v. Clark, 143 U. S. 649, 495, tbe court, after stating that it was not necesasry to decide in that case to wbat extent tbe validity of legislative, acts may be affected by tbe failure to enter on tbe journals matters wbicb tbe constitution expressly requires to be entered, used tbe following language: “Tbe signing by tbe speaker of tbe bouse of representatives, and by tbe president of tbe senate, in open session, of an enrolled bill, is an official attestation by tbe two bouses of sucb bill as one that passed congress. It is a declaration by tbe two bouses, through their presiding officers, to tbe president, that a bill thus attested has received, in due form, tbe sanction of tbe legislative branch of the government, - and that it is delivered to him in obedience to tbe constitutional requirement that all bills wbicb pass congress shall be presented to him. And when a bill thus attested receives bis approval, and is deposited in tbe public archives, its authentication as a bill that has passed congress .should be deemed complete and unimpeachable.” Harwood v. Wentworth, 162 U. S. 547. Tbe constitutions of many of tbe states expressly require tbe yeas and nays on tbe passage of a bill, as well as other matters, to be entered on tbe journals, while tbe constitutions of other states do not expressly require sucb entries. Tbe decisions bolding that tbe court may look beyond the enrolled bill in tbe public archives, duly signed and approved, in nearly every instance, were made in states whose constitutions expressly require sucb entries upon tbe journals, while tbe decisions, with some exceptions, bolding tbe law, duly signed and approved, in tbe public archives, as unimpeachable, were made under constitutions not requiring such entries. There are, however, well-considered cases that hold such laws, so deposited, signed, and approved, as conclusively authenticated,, though constitutional provisions expressly require such entries to be made on the journals. It is not necessary for us to go that far in this case, as our constitution does not expressly require such entries to be made, except when demanded by five members; and that entry, we have seen, is mainly for the purpose of publication. English statutes found in the proper custody, duly authenticated, import absolute verity. Such has been the common law of England from early times. The statutes in question having been duly signed, approved and deposited in the office of the secretary of state, we must conclusively presume that all constitutional requisites were complied with in their enactment.

It is also claimed that section 2G of the act in force March 28, 1896, supra, is void because it conflicts with section 8 of article 4 of the state constitution, which reads: “All elections shall be by secret ballot. Nothing in this section shall be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election: Provided, That secrecy in voting be preserved.” It is conceded that this section requires a secret ballot, but defendants claim that the statute provides for a secret ballot. The portion of section 26 objected to is as follows: “The judge or clerk shall immediately write the name of such voter upon the poll list, and shall take the ballot of such voter and number it in ink in one corner upon the top thereof, in such manner as not to expose or show how the voter bas voted. The same to be numbered in the order in which it shall be received consecutively, and so as to permit the corner to be turned and pasted down with mucilage, which shall then be done so that the number is not thereafter visible, and such seal shall only be broken in case of a contested election; and the same number shall be recorded by the election judge or clerk on the list of voters beside the name of such voter.” Without a violation of law, no one can ascertain from this numbering for whom any citizen has voted, without a contest, and then the court or tribunal before whom the contest is conducted should only allow tickets cast by persons who are not legal voters to be examined, and persons casting such votes cannot insist upon secrecy. • If a person succeeds in getting an illegal ticket into the box, it cannot be thrown out without identification; and without the number, or some other character or mark, upon the ticket, it cannot be identified. When the name of a*person who has cast an illegal ticket is ascertained, and the number is learned from the poll list, some authorized person must open the box and break the seals until the right number is found; but, until that one is reached, such person has no right to examine the names on any ticket. The number being on the corner, it would not be necessary, nor would it be lawful, for him to examine the names on any lawful ticket. If it should become necessary to count the tickets in the box, it would not be proper to break the seals and examine the numbers for that purpose. It is clear. that an examination necessary to a contest cannot disclose for whom any persons, except fraudulent voters, have voted, without a violation of the spirit of the law. We cannot presume that the authors of the constitution intended to prevent election contests, — to prevent any proceeding by which ballots cast by illegal voters can be thrown out. The method devised by this law preserves legal secrecy. The members of .the convention must have known that election contests were permitted in all the states, and that they are deemed necessary wherever the people express their will at the polls. Justice should be permitted to pursue fraud, even into the ballot box. No man should be allowed to hold an office obtained by corrupt or illegal votes. To prevent it, a numbering of ballots is necessary in some cases. It is sanctioned by authority. Hodges v. Linn, 100 Ill. 397; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350. While we are of the opinion that a law might be framed, permitting an election contest, and better adapted to secure a secret ballot, we are disposed to hold the present law valid notwithstanding this objection.

The plaintiff insists further that the subject of the act in force April 5th, supra, is not clearly expressed in its title, and that it contains more than one subject, and that it does not conform to section 23 of article 6 of the constitution, which declares that, “except general appropriation bills, and bills for the codification and general revision of laws, no bill shall pass containing more than one subject, which shall be clearly expressed in its title.” Undoubtedly this provision requires the subjects of all bills not within the exceptions to be clearly expressed in their titles, and the title limited to one subject. Such limitations were not imposed formerly on legislation, but observation and experience have demonstrated a necessity for their application. It is believed that such restrictions tend to prevent hasty, inconsiderate, improvident, and sometimes corrupt legislation, to the detriment of the common good. The object may be a general one, however, and it may be stated in terms sufficiently comprehensive to embrace every means and end necessary or convenient for the accomplishment of the general purpose. Their'purpose is not fragmentary legislation, however, nor will they permit subjects to be included not connected with the general purpose, — not necessary or convenient as a means to the general end. The title of the act in question is expressed as follows: “An act relating to and making sundry provisions concerning elections.” The title, as expressed, indicates provisions relating to or concerning elections. It states a general purpose. It asserts that the entire act relates to elections, and that it contains sundry provisions concerning elections. In that way the title describes the act, and the provisions it contains. The elections which the act concerns, and for which it professes to make provision, are described in general terms, broad enough to include all elections, special and general elections to fill offices for the term, or to fill a vacancy.' Thus the subject is expressed, and we think it is expressed with sufficient clearness. Cooley, Const. Lim. pp. 170, 172; People v. Mahaney, 13 Mich. 481; Tuttle v. Strout, 7 Minn. 465 ( Gill. 374).

This brings us to the further question, is the act what the title says it is, and do its provisions concern elections? Two of its sections we will consider with respect to the title: Section 5 is as follows: “If a vacancy occurs in the office of judge of the supreme or district court, secretary of state, state auditor, state treasurer, attorney general or superintendent of public instruction, the governor shall appoint a person to hold the office until the election and qualification of a successor to fill the vacancy, which election shall take place at the next succeeding general election, and the person so elected shall hold the office for the remainder of the unexpired term.” In case of a vacancy in either of the offices mentioned, this section makes provision for filling it by election at the next sue-ceeding general election, and requires the governor to appoint a person to hold it until that time. The provision for the election of a person to fill the vacancy is indicated by the title of the act, but the provision for appointing an incumbent in the meantime is not. The general purpose described in the title includes the election, but does not include the appointment. The provision for the election is valid unless it conflicts with section 10 of article 7 of the constitution. This provision for an election will be considered with respect to said section 10 further on. But the power to appoint a person to hold the office is conferred on the governor by section 10 of the constitution mentioned, and the invalidity of the provision for such appointment, because it is not embraced in the title of the act, is immaterial. It also appears in section 42 of the act under discussion that “all appointive officers in said cities and towns shall hold their respective offices until their successors shall be appointed and qualified.” This section does not relate to elections, nor does it concern elections. Therefore the title does not embrace it. The other provisions of the act appear to relate to elections, and are therefore valid, so far as they depend on the title, and they are not affected by those held to be void. If the act is broader than the title, the rule is that the provisions indicated by the tiifle may stand, while those not indicated must fall, unless they are so dependent on each other that they cannot be executed separately. Cooley, Const. Lim. (6th Ed.) p. 177.

As we have seen, this is the first term of office of district judges under the constitution, and that the term extends to the first Monday in January, 1901, and that plaintiff was appointed in May last to succeed Judge Young, who had resigned; and a further question in this case is, can he hold until the end of the term, on the first Monday of January, 1901, or until the qualification of the person who was elected in pursuance of section 5, supra, -on the 3d day of November last? If that section governs, his successor was duly elected as provided by law, and upon his qualification the petitioner’s right to the office will be at once terminated. Whether it shall govern depends upon the meaning of section 10 of article 7 of the constitution. That section reads as follows: “The governor shall nominate and, by and with the consent of the senate, appoint all state and district officers, whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. If, during the recess of the senate, a vacancy occur in any state or district office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate, when he shall nominate some person to fill such office. If the office of justice of the supreme court or district court, ■secretary of state, state auditor, state treasurer, attorney general or superintendent of public instruction be vacated by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified as may be by law provided.” This section is composed of three distinct clauses or provisions. The .first makes it the duty of the governor to nominate, and, with the consent of the senate, appoint, all state and district officers whose offices are established by the constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. If a vacancy occurs in any state or district office during the recess of the senate, the second clause requires the governor to appoint a fit person to discharge the duties of the office until the next meeting of the senate, and then it requires him to nominate a person to fill the office. If the office of justice of the supreme or district court, secretary of state, state auditor, state treasurer, attorney, general, or superintendent of public instruction becomes vacant, the third and last clause of the section makes it the duty of the governor to fill the same by appointment, and provides that such appointee shall hold the office until his successor shall be elected and qualified as provided by law. Doubtless a legislative enactment was contemplated. In the absence of such a law, there would be great force in the claim that such appointee would hold until the general election to fill the office in 1901, and until the qualification of such person, or a successor after that time. But so much of section 5 of the act of April 5th, above quoted, as relates to elections, we hold to be valid, and it must be held to govern.

The plaintiff also insists that ballots prepared and printed according to the act of March 28th, above mentioned, and exclusively used at the November election, do not afford equal facilities to vote to all voters; that a ballot may be cast for party candidates with less difficulty than for those candidates who have no emblem on the ballot to represent them; that a partisan can vote easier than an independent; and that the law does not operate equally and uniformly'on all voters. It is true that party organizations may, by the observance of certain requirements, have the names of their candidates and their emblem printed on the ticket, while other candidates are required to obtain the signatures of a specified number of voters to a certificate before their name can be printed on the ballot. And by simply placing a cross opposite a party emblem a vote may be cast for all the candidates of a party, while a vote for any number of candidates of a party less than all can only be given by a cross opposite tbe name of each candidate; and if a voter wishes to cast a vote for a candidate whose name is not on it, he is obliged to write the name on the ballot, and place a cross opposite to it. Of course the voter should be allowed to perform this duty with the least difficulty and inconvenience consistent with an honest and fair election. No unnecessary impediments or inconveniences should be thrown in his way. The system tends to encourage the voting of straight tickets, and to discourage, independent voting, which some think is an objection. The system has its merits as well as its demerits, and the legislative department of the state government has seen fit, in its wisdom, to enact the law; and we do not feel authorized to overturn the people’s will, as expressed through that body, in the law. The court holds that none of the various objections urged by the plaintiff is well founded. We therefore deny the application for the writ.