State ex rel. Attorney General v. Platt

2 S.C. 150, 1870 S.C. LEXIS 17

• Court: Supreme Court of South Carolina
• Decided: November 23, 1870
• Status: Published

Opinions

The opinion of the Court was delivered by

WillaRD, A. J.

The Attorney General asks that writs of mandamus may issue from this Court in the case first above entitled, to the Circuit Judge of the Second Circuit, commanding him to hold the Courts of Common Pleas and General Sessions for Barnwell County at Blackville, instead of Barnwell, and, in the last named case, commanding the Sheriff of Barnwell County to hold his office at Blackville.

The main question involved is, whether Blackville or Barnwell is the place appointed by law for the holding of the Courts of Common Pleas and General Sessions for that County.

It is alleged that Section 19 of the “Act to revise, simplify and abridge the Rules, Practice, Pleadings and Forms of Courts in this State,” passed March 1, 1870, as published by law, does not conform to the enrolled Act deposited in the office of the Secretary of State, as that Act stood at the time the enrollment was made.

It is admitted, and is to bo taken as one of the facts of this case, that, at the time of the enrollment of the Act, and of its signature by the President of the Senate and Speaker of the House of Representatives, and of its presentation to, and approval by, the Governor, and also at the time of its deposit in the office of the Secretary of State, the 19th Section of the Act provided that the Courts of Common Pleas and General Sessions should be held at Barnwell, but that, since being so deposited, the text of the enrolled Act has been altered, so that the Act, as it now stands, requires that these Courts should be held at Blackville.

It is also alleged by the relator that it appears by the Journals of the two Houses of the General Assembly that the Act, as passed by the General Assembly, required the Courts to be held at Black-ville, and that the enrollment did not, in this respect, conform to the law as passed.

It becomes a question for our consideration, therefore, whether we can look into the Journals to see in what form the law actually passed the General Assembly, or whether we are precluded, by the form of the enrollment, from further inquiry as to the terms of the Act.

Under the Constitution, the question whether an Act of legislation has the force of law, does not depend merely upon the constitutional majorities of the two Houses having so determined, but upon the performance of certain acts, in part legislative and in part executive, and following each other in a certain order. By Section 21, Art. II, it must have been read three times, and on three several days, in -each House-; it must have the Great Seal of the State affixed to it, and it must be signed in the Senate-House by the President of the Senate and -the Speaker of the House of Representatives. By Section 22, Article III, it must have been presented to the Governor, and have been approved and signed by him. But the Governor’s signature is not indispensable. If after being returned with his objections, it shall have been reconsidered and approved, in each House, by two-thirds of such House, or if, after being presented for his approval, he shall neither approve it nor return it with his objections, within three days — when these prerequisites are complied with, the Act acquires the force of law under the terms of the Constitution. If either one fails, there cannot be a compliance with the conditions upon which, under the express terms of the Constitution, the force of the Act, as law, depends.

It appertains to the office and authority of the'judicial department to enforce the limits imposed by the Constitution upon the authority of the Legislature, by refusing to give force to acts without their sanction, and, accordingly, to determine whether the acts have been duly performed upon which the force of the enactment, as law, depends. Having power to inquire into the existence of these jurisdictional facts, it may resort to whatever evidence, in conformity with the principles and rules of law, is esteemed most conclusive of the fact to be determined.

It is argued, however, that if the enrollment is fair- on its face, and if the Great Seal is affixed to it, inquiry must there stop, at least so far as it is a question what are the provisions of the law that has been passed.

The Constitution does not assume to determine what shall, or what shall not, constitute evidence, whether primary or secondary, of the facts upon which the authority of an Act depends. To what source, then, shall we refer, in order to ascertain upon what evidence a judicial inquiry of this nature ought to ¡proceed ? This question is substantially answered by Judge Cooley in a manner that commends itself for the breadth and soundness of its reason. He says (Cooley’s Constitutional Limitations, 130): “ If) when the Constitution was adopted, there were known and settled rules and usages forming a part of the law of the country, in reference to which the Constitution has evidently been framed, and these rules and usages required the observance of particular forms, the Constitution must be understood as requiring them, because, in assuming the existence of such laws and usages, and being framed with reference to them, it has, in effect, adopted them as part of itself, as much as if they were expressly incorporated in its provisions.”

It would be putting too narrow a construction upon the language just quoted to assume that its whole force was confined to cases involving- mere questions of technical forms. The rules of evidence which should govern judicial deliberation upon questions of right arising directly out of the Constitution are, in an enlarged sense, observances of form; and the principle laid down by Judge Cooley, and carefully limited by him, embraces fairly matters of form in the sense thus employed. The necessities of this case do not require that this principle should he carded as far as it may with safety bo carried. Following this rule thus laid down, in the absence of any express constitutional declaration as to the character and effect of the evidence appropriate for determining the existence of the facts upon which the force of an Act as law depends, we must look to the settled rules and usages forming a part of the law of the country at the time of the adoption of the Constitution, and also to the Constitution itself, to see how far those rules and usages enter into its sense, and have become interwoven with its text. Upon the question, w'hcther the Great Seal should stand as conclusive proof of any of the required facts, other than that of its being fixed as required, Sec. 21, Art. IT, furnishes negative evidence.

When several independent acts are required to be performed, in order to accomplish a given result, to say that proof of the performance of one of them shall be admitted as conclusive proof of tho performance of the others, is to say, in effect, that that one alone is really requisite. If it should be admitted that the Great Seal possessed, by law, at the adoption of the Constitution, the attributes ascribed to it, in respect of affording final aiid conclusive evidence of the facts certified under it, still there would be wanting evidence, to be sought for in the Constitution alone, that such force was intended to be given to it in its bearing in weakening the safeguards of the Constitution. Assuming the question to be, whether the Act had passed the Houses by the due number of readings — of which fact the Constitution provided appropriate evidence,namely, the Journals of the proceedings of the Houses (Sec. 26, Art. II) — it is not to be presumed that it was intended that the act of affixing the Great Seal, an act performed apart from the legislative body, in an executive office, should furnish higher evidence of the proceedings of the body than its own Journals.

Looking carefully into the essential character of the judicial act cast upon this Court, it is evident that, allowing the Great Seal, or the signatures of the presiding officers of the respective Houses, to stand as unimpeachable evidence of the identity of the Act, as enrolled, with that acted upon by the Houses, would be equally inconsistent with the object and intent of the Constitution, as in the case just supposed. In order to- determine whether an. Act has passed through all the requisite stages of legislative progress, its identity, in each of those stages, must be determined. If the formalities of enrollment do not prevent us from looking into the Journals, in order to see that the Bill had its proper readings, of what value will that be to us, if we are estojjped by the enrollmem from enquiry as to what Bill the Journals have relation? To give full force and effect to the Constitution, if an issue of identity is raised, we must look into the Bill or Act, at each step of its progress, to determine that that which has received part of the formalities requisite to its validity as law is the same with that which has received the residue of such formalities. Hitherto this question has been considered in the simplest form in which it is likely to arise, that is, upon the supposition that the Act, regarded as a whole, is not the same, as appearing by the enrollment, with that which passed through the ju’eeeding stages of enactment. In regard to this assumed case, we have no doubt but that we may look at the Journals for the purpose of ascertaining the action of the Houses, and into any evidence that may be appropriate to show the nature of the Bill, the subject of such action. A more difficult question here presents itself.". When, as in the present ease, the Act, as a whole, has unquestionably passed through all the requisite stages, but some part, either of a section or clause, or, as in the case in hand, a mere word, is found to constitute the difference between the Act in its different stages of progress, it is necessary to look beyond the expressions of the Constitution, to its substantial meaning and intent. As regards the general question, it is much simplified by the fact that the alleged error does not affect the general-integrity or efficiency of the Act, 'nor enter into any of the limitations and conditions by which the Legislature sought to bound the sphere and scope of its provisions. It was, indeed, urged upon the argument that, in the course of legislative complications attending the passage of the Bill, the choice between Barnwell and Blackville became an element of importance, as bearing on the composition of the vote that was relied upon to pass it; but that is a matter with-which we have no concern, as we are not called upon to analyze the majority that voted for the Bill, or to say what cousiderations might, or what might not, have influenced any portion of that majority to a different course of action. From the stand-point of legal construetion, we must regard it as a matter of indifference, so far as the general scope of the Act is concerned, whether the selection fell upon Barnwell or Blackville, or whether the subject was included or excluded from the Bill. It is evident that a Bill, having in contemplation a complete change in the modes and forms of legal procedure, could not be prejudicially affected in its general usefulness, and perverted-from the objeets it was intended to secure, by uncertainty as to whether the Circuit Courts of Barnwell County were to be held at the one place or at the other.

It follows, as a necessary consequence, from what has been said, that if the clauses of the Constitution in question operate to the extent of withholding force from a subordinate part of an Act, on the ground that the formalities required for the Act, as a whole, cannot be ascribed to such subordinate part, then we not only have power so to declare, but may resort to such evidence as, in conformity with the ordinary rules of procedure, may be appropriate i¡o make such fact appear.

There remains the important question, whether the Constitution, in prescribing the formalities that should attend legislative enactment, can be regarded as looking to the several parts of which an Act is composed, as well as to the Act as a whole. Section 22, Art. II, of the Constitution, declares that “ every Bill or Joint Resolution which shall have passed the General Assembly, except on a question of adjournment, shall, before it becomes a law, be presented to the Governor, and if he approve he shall sign it.”

There are but two modes of viewing this clause as it regards the present question: either the term “ Bill ” is to be regarded as exclusively applicable to the entire enactment as a whole, or else each substantial part thereof is to be regarded as a separate Bill, dependent for its force upon its relation to the several stages of legislative and executive action. "

It will be proper here to remark that this doctrine does not lead to the rejection of amendments, notwithstanding they have not-received all the readings, for one of the main objects in requiring these separate readings is to increase the facility of amendment. This may, therefore, be regarded as an exception to the general doctrine we have stated above, not springing as a limitation out of the principles fundamental to that doctrine, but imposed by the Constitution itself, as read by the light of the usages and laws of the country prevailing at the time of its adoption.

In a technical sense, the term “ Bill ” is applicable properly to the enactment as a whole. Although the technical sense of words should prevail, where not inconsistent with the clear intent of the instrument, yet when such intent requires that words should be used in the larger sense, it is competent so to regard them. If we should hold that the Constitution regards the enactment as a whole, in an exclusive sense, we would be led to the inevitable conclusion that 'tt> become a law all the substantial parts of the measure must have together passed through all the requisite stages. The consequences of this would be, that alteration in a substantial part during such progress would be fatal to the whole Bill.

By á substantial part, is meant any Section, clause or Avord, that conveys a distinct expression of the legislative will which cannot be supplied by construction from the other parts of the Act, leaving-out of view that part in which the defect lies. Whether it is to be regarded as substantial, does not depend upon its importance or unimportance to the rest of the Act, but upon its being, in itself, an expression of the legislative will, capable of being the subject of a separate Act. It would lead us to the conclusion, in the present case, that, if the law in question, although, in substance, a code of legal procedure, differed, as it passed the Houses, from the enrolled Act, in respect of any matter, though a mere word, that covered a distinct expression of the legislative will, not capable of being made out by construction, applied to the rest of the Act, the whole must be regarded as unconstitutional. That the Constitution intended no such absurdity, is manifest. When a deed or contract cannot be carried into full execution by reason of error, the law invariably eliminates the error, either by construction or reformation, when that can be done without the substantial destruction of that in which it inheres. This principle is constantly applied to statutes where some independent matter, capable of severance from the body of a statute, is inoperative under the Constitution. The rules of construction are based, in part, upon this principle, so vital to them that they would not only lose their scientific character, but fail to express that common sense fundamental to all legal systems if deprived of it.

Forced upon the opposite construction, that every substantial part of a Bill is to be regarded as a Bill in the sense of the Constitution, we find nothing in our way but the technical- import of the term “ Bill.” It is not easy to perceive why, if any detached part of a statute is a law within the meaning of the Constitution of the United States forbidding States passing laws impairing the obligation of contracts, any part of a Bill is not a Bill under a clause intended to secure deliberation on the passage of legislative enactments. Such a conclusion is inevitable, if regard is had to the fixed principles governing constitutional construction. The objects had in view, by a Constitution of government, are habitually substantial; matters of form are usually left to the legislative body, as subject to change with the progress of ideas and events. The great objects in view, in framing a Constitution, are the division and distribution of the powers of government., the establishment of limits and boundaries beyond which they shall not be exercised, and the creation of an efficient responsibility tending to restrain and furnish the means to correct neglect or abuse of public authority. Clauses having for their object the creation of responsibility in the exercise of political functions are, to a large extent, intended to act upon the motive, either by way of creating inducements for right actioD, or removing the temptation or' opportunity to such abusive exercise. This is, in part, accomplished by fixing the responsibility for all political action in some defined person; or body of persons, by securing deliberation in the performance of public acts, and by ascertaining modes of authentication and action in important cases vitally affecting the welfare of the State. It is obvious that, in construing clauses of this class, substance, rather than form, is to be considered. The object to be secured is to be sought for, not alone in the formal expressions of the Constitution, nor yet in the technical character of the means employed to secure its ends, but, in the nature of the subject, intended to be acted upon through such means. In a word, the language of the Constitution, in such cases, is to be construed in the largest sense fairly attributable to it, and that will best subserve the objects it has in view.

The clauses of our Constitution under examination belong to the class just specified, their objects being to prevent abuses in the exercise of the most important function of the government, namely, that of making laws, by securing deliberation and solemnity of authentication in such form as to fix a personal responsibility at every stage in the progress of an Act of legislation. It is altogether a mistaken view to suppose that the object of these clauses was either to confer upon the signatures of the attesting officers power to cover up fatal defects in the passage of Acts, or to conserve the outward, visible and tangible form of a law, without consideration for the vital matters that are contained within it. We would altogether fail to appreciate the.spirit that animates the system of constitutional law, the flower of jurisprudence, native to our own country, should we apply the narrow rules of technical construction contended for to the clauses in question. The principles characteristic of that system have been evolved from the highest reason under the experiences of a political system securing the largest field of human action and motive for the enterprise of thought. They are like the atmosphere we breathe, animating and all-pervading, and if not definable with that sharpness of outline that affords the highest qualification to the scientific mind, yet they are capable of reducing to precision -and definiteness of outline the institutions and laws which derive their substance and vigor from them.

We are forced to conclude that the safeguards set forth in Section 23, Art. Ill, of the Constitution, aré applicable not only to the title and body of an Act of legislation, but to every substantial matter contained therein, with the same effect as if such substantial matter was an independent Act of legislation in itself.

As we have already concluded that we may look into the Journals, or beyond them, in a proper case, in order to see that there has been a compliance with the terms of the Constitution, it remains for us to ascertain whether the designation of a place for holding the Courts of Common Pleas and General Sessions for the County of Barnwell has been accomplished by Section 19 of the Act in question, in accordance with the' requirements of the Constitution.

The Journals of the General Assembly make it to appear that, as the Bill stood on its final passage, Section 19 read Blackville, while it read Barnwell as presented to the Governor for his approval. The consequence is, that so much ofSection 19 as attempts to designate a place of holding said Court is without the force of law. In other wmrds, the legal effect is the same as if an independent Act, making Blackville the place of holding the Courts, had passed the General Assembly, and a totally different Act, making Barnwell the place, had been submitted to the Governor, in lieu of that passed by the General Assembly.

Previous to the passage of the Act in question, the place of holding the Courts was fixed by law at Blackville, and, unless that law has been repealed by this Act, that place still remains the place of holding such Courts. Section 471 of the Act of March 1st, 1870, contains the repealing clauses, which only extend to statutory provisions inconsistent with that Act. As the Act does not designate as law any place of holding such Courts, there is nothing inconsistent that can lead to the repeal of the former Act.

Before leaving this portion of the case, it is proper to remark, in view of the important bearing of the Act in question on the jurisdiction and forms of proceeding of the Courts, that, in our-judgment, the residue of the Act, beyond that portion held by us not to be of force as law, is unaffected thereby, inasmuch as that 'is a distinct and independent matter, no way affecting the scope and efficiency of the Act, according to the intention of the law-maker.

In the case of the application against the Circuit Judge of the Second Circuit, it is sought to obtain a mandamus requiring him to hold his Courts of Common Pleas and General Sessions at Blackville instead of at Barnwell. It is admitted that the last term was held at Barnwell. The next term for Barnwell is to commence on thesecond Monday of December next. The initiatory step towards the holding of that term is the issuing of the venire facias. By Section 8 of the “ Act to regulate the manner of drawing jurors,” passed September 26, 1868, this writ is to be issued by the Clerk at least fifteen days before the commencement of the term. Unless that act is compelled, or voluntarily performed, the term must, for all substantial purposes, fail. The Circuit Judge has no other power than this Court possesses to compel the performance of this act, namely a writ of •mandamus. By mandamus he may compel the Clerk to make his writ returnable at the proper place of holding the Court. Should a writ of man-damns be issued to the Circuit Judge, he could be called upon to yield no further obedience to it than by his personal attendance at the time and place of holding the Court. His presence does not insure the presence of the other necessary component parts of the Court. It is not the office of the writ, when issued by this Court, to forestall such judicial determination as he may make on a writ of mandamus issued by himself, nor to compel him to issue such writ.

The issuing of the writ by us, under such circumstances, is novel, ineffectual and unnecessary. It is to be presumed, in view of the present determination of this Court, that the Circuit Judge will hold his Court at the proper time and place, if the requisite preparations have been made by the other officers whose corporate action is necessary to the assembling of a Court. Should they fail to perform their duty, there is abundant means of compelling such performance; but that cannot be done by means of a mandate addressed to the Circuit Judge.

The Sheriff is bound to hold his office at the place of holding the Courts, and that, as we have held, is Blackville. The public have an interest in the performance of this duty, and they have a right to the means of compelling it through their official representative, the Attorney General.

The prayer for a writ against the Circuit Judge of the Second Circuit is denied. A peremptory writ will issue in the case against the Sheriff in accordance with the relator’s prayer.

Wright, A. J., concurred.