49 P. 985 | Idaho | 1897
Lead Opinion
The controlling question in this case is, Is the act of March 12, 1897, regulating the fees and compensation of county and precinct officers, valid? Section 15, article 3, of' the constitution, is as follows: “No law shall be passed except by bill, nor shall any bill be put upon its final passage until the •same, with the amendments thereto, shall have been printed,
The people, in making and adopting the constitution, were not content with requiring the printing and reading one time only of bills, but have absolutely required that all bills shall be read on three several days in each House; and these several readings cannot be dispensed- with, except “in case of urgency, two-thirds of the House where such bill may be pending may upon a vote of the yeas and nays dispense with this provision.”
The history of the passage of the act in question, first known-as “Senate bill No. 2,” afterwards as “Substitute Senate bill
In the Senate: “January 7. Senate bill No. 2, introduced by Senator Thomas A. Davis, read for the first time, and referred to the committee on judiciary. January 11. Judiciary reported, and recommended that the bill be printed. January 20. Bill reported printed. Same day, Senate bill No. 2, by Davis, was read the second time by title and referred to committee on engrossment. January 22. Taken from committee on engrossment, and referred to general calendar for action of the committee of the whole. January 23. Senate bill No. 2 made a special order of business for Monday, January 27, at 2:35 o’clock P. M. January 26. Committee of the whole, having the bill under consideration, reported progress, and further consideration postponed for one week. February 2. The committee of the whole reported progress, and asked leave to sit again. February 8. Consideration by the committee of the whole. The committee reported progress, and recommends that the bill retain its place on the calendar, and asked and was granted leave to sit again. On motion of Senator Joseph C. Kieh, Senators Ballentine (of Blaine), Keller, and Davis (of Oneida) were appointed a special conference committee on Senate bill No. 2, and as such to report at 2 o’clock P. M. to-morrow, and the further consideration of the bill postponed until that hour. February 10. Thomas A. Davis of the special conference committee on Senate bill No. 2, informed the Senate that the House had passed a resolution to confer with a like committee from the Senate on said matter, and asked further time, which was granted. February 15, Committee reported, and submitted a substitute for Senate bill No. 2, and recommended the passage of the same. Substitute for Senate bill No. 2, introduced by conference committee: ‘An act regulating the fees and eom-•pensation of the various county and precinct officers within the state of Idaho.’ Bead the first time by title, under suspension of section 15, article 3, of the constitution, and Senate rules, by unanimous consent, and referred to committee on public printing. February 17. Substitute for Senate bill No. 2 reported back, printed and placed on the calendar. February 24. The committee of the whole reported progress in consideration of
In the House: “February 2. Message from the Senate that the Senate had passed substitute to Senate bill No. 2, and that same was therewith transmitted. March 1. Mr. Heat moved that the rules of the House, and article 3, section 15, of the constitution, be suspended, and all Senate and House bills, joint resolutions, and memorials on first and second reading be read first and second time by title, and referred to their appropriate committees, which motion was adopted by an aye and nay vote of twenty-four to five; and under the said motion substitute for Senate bill No. 2, by conference committee, £An act regulating the fees and compensation of the various county and precinct officers within the state of Idaho,’ was read the first and second time by title, and referred to committee on county officers. March 2. The committee on county officers reported the bill back, and recommended its passage. The bill was then read a third time, and referred to the judiciary committee. March 4. The committee on judiciary reported the bill back,
And this is the record as it appears in the journals of the two Houses. While many irregularities worthy of criticism appear in this record, we will only call attention to some of the more flagrant violations of the constitution. As shown by the Senate journal, substitute to Senate bill No. 2, .offered by the conference committee, which was, in effect and in fact, a new bill, was read the first time by title; the Senate assuming to suspend section 15 of artiole 3 of the constitution without an aye and nay vote, a thing which cannot be done under the provisions of the constitution. It does not appear from the journal of the Senate that substitute to Senate bill No. 2 was read the second time. The recital that it “was filed for a second reading” does not show that it was read a second time. Each House is required, by section 13, article 3, of the constitution, to keep a journal of its proceedings. This means that the journal shall show all of the proceedings of the House, and all of the steps taken in the passage of every bill. By reason of this provision the journal becomes, not only the best evidence, but the exclusive evidence, of what was done by the House keeping such journal, and courts must impute to the record and statements in the journal absolute verity. The recitals in the journal are conclusive and cannot be contradicted. (Burkhart v. Reed, 2 Idaho, 503, 22 Pac. 1; Clough, v. Curtis, 2 Idaho, 522, 22 Pac. 8; Wright v. Kelly, 4 Idaho, 624, 43 Pac. 565; Water Co. v. Stockslager, 4 Idaho, 636, 43 Pac. 568; Blaine Co. v. Heard, ante, p. 6, 45 Pac. 890.) In the passage of a bill by either House, the journal of such House must show affirmatively that all of the requirements of the constitution were complied with by such House. To suspend the provision in regard to reading all bills on three several days in each House, an urgency must exist; and the suspension must he by an aye and nay vote, and
The plaintiff, in preparing his case, procured a transcript of the journals’ of both Houses, certified by the Secretary of State to be full and correct. This is the correct practice, and we commend it.
The court should treat the enrolled bill (the fact that it is regularly enrolled) as presumptive evidence that the legislature, in passing it, performed all of its duties; but this presumption is subject to rebuttal. And when the validity of a statute is attacked the party attacking should show by the journals that at least one requirement of the constitution was disregarded, and the failure of the journals to show that any constitutional requirement was obeyed is conclusive evidence that such requirement was not obeyed. If all the requirements of the constitution had been complied with, as to reading, printing and voting on final passage, in regard to the bill in question, by
The conclusions reached, after a careful and full consideration, are: 1. To determine the validity of a statute, the. court can and should, in the proper case, go back of the enrolled bill to the journals of both Houses, to ascertain whether the requirements of the constitution were complied with by the legislature in enacting such statute. 2. The act in question is void in toto, by reason of the failure of the journals of the legislature to show a compliance with the requirements of the constitution in passing said act. The judgment appealed from is reversed, and the cause remanded, with instructions to the trial court to enter judgment in favor of the defendant. Costs of appeal awarded to the appellant.
Rehearing
ON REHEARING.
The learned attorney general, on behalf of the respondent, has filed a voluminous petition for rehearing, which we have carefully considered. A perusal of the same shows that the acquaintance of the attorney general with the arguments of appellant, printed and oral, is as limited as is his knowledge of the decision heretofore rendered in this case. In the petition he says: “No reference is made in the opinion of the court herein to said section 13 [article 3], and we are of the opinion that the court, in deciding said case, overlooked said section.” An inspection of the opinion will show that we did refer to section 13, article 3, of the constitution; and for
Again, the attorney general is in error when he says in the petition for rehearing, at page 5, that “appellant has never contended that the journals do not show that yea and nay vote was taken upon the final passage of the bill.” We respectfully refer the attorney general, and all other persons who entertain erroneous ideas of the court’s rulings and what was argued before the court, to page 9 of appellant’s brief, where the fol-loAving language is found, to wit: “Calling the court’s attention
It is a matter of regret that the attorney general of the state should ridicule any of the provisions of the constitution, or speak of them as “insignificant,” or use this language, which we find in the petition for rehearing: “We admit that the constitution of the state is surrounded with a halo of sanctity and solemnity, a great part of which is fictitious.” The constitution requires certain things to be done in connection with the passage of any and all laws. It is true that the doing of these things is a matter of procedure. But by what right shall anyone be permitted to say that any of the things required by the constitution to be done are “insignificant,” and may therefore be omitted ? Has anyone more right to say that one of the things required by the constitution is insignificant and may be omitted than he has to say that any other thing required is insignificant and may therefore be omitted? If the right to ignore one provision exists, the right to ignore all exists. If the court must wink at one violation of the constitution, it must wink at other violations of it. If the court must approve one violation of the constitution, it must, to be consistent, approve other violations of it. We must be subject to the constitution, or else subject to the whims of those individuals who treat the sanctity of the constitution as fictitious and its provisions as insignificant. We cannot serve both God and Mammon. We must
Mr. Sutherland, in his work on Statutory Construction, speaking of another provision, at section 79, says: “The efficiency of this constitutional remedy to cure the evil and mischief which has been pointed out depends on judicial enforcement; on this constitutional injunction being regarded as mandatory, and compliance with it essential to the validity of legislation. The mischief existed notwithstanding the sworn obligation of legislators. It might be expected to continue, notwithstanding that obligation is formulated and emphasized in this constitutional injunction, if it be construed as addressed exclusively to them, and only directory. It would, in a general sense, be a dangerous doctrine to announce that any of the provisions of the constitution may be obeyed or disregarded at the mere will or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of that instrument. It would seem to be a lowering of the proper dignity of the fundamental law to say that it descends to prescribing rules of order in unessential matters, which may be followed or disregarded at pleasure. The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid of moral obligation, and to be therefore habitually disregarded.'’ Mr. Black, in his work on Interpretation of Laws, at section 13, quotes from the above section of Mr. Sutherland’s work with approval, and adds: “As a rule, therefore, whenever the language used in a constitution is prohibitory it is to be understood as intended to be a positive and unequivocal negation.” Judge Cooley, in his work on Constitutional Limitations, fifth edition, page 93, says: “But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of the constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are
The persistent contention of the respondent that the court should not go back of the enrolled bill to the legislative journals to see if the act in question was passed in the mode required by the constitution in face of the fact that this court has repeatedly held that it may do so, is ill-advised and not worthy of consideration. To hold in accordance with this contention of respondent would make the provisions of the constitution merely directory and subject to the whims of either House of the legislature, contrary to the expressed will of the people. That the court may go to the journals of the legislature to see if the provisions of the constitution were obeyed by the legislature in the enactment of a law had become the established doctrine of
There is no intention disclosed in the constitution to make the legislature the exclusive judges of the constitutionality of its acts. The legislature must, in the very nature of things, use its judgment, in the first instance, as to whether a proposed action by it is constitutional or not, or whether it is acting in the manner required by the constitution. But whether the legislature should make an honest mistake, or perversely violate the constitution, the remedy for such violation exists, nevertheless, and courts must refuse to aid and abet such violations of the constitution. The court does this by refusing to recognize the validity of any act passed in violation of the mandates of the constitution.
The learned counsel for respondent (the attorney general) cites the provisions of section 9, article 3, of our constitution* to the effect that each House shall “determine its own rules and proceedings,” etc. We are somewhat at a loss to understand the pertinency of this quotation in the consideration of the questions involved. Does the learned attorney general desire to be understood as claiming that this is a controlling provision of the constitution, and is to be taken literally, without regard to the provision of section 15, article 3? This would be a strange and unheard-of rule of construction, but without it the quotation, of counsel is idle.
In preparing his petition for rehearing the learned attorney general says: “Nor have they [counsel for appellant] ever claimed that the journals affirmatively show that the other requirements of the constitution relating to the passage of the bill were not complied with.5’ This proposition is on a par with that other proposition so often reiterated, that this court, in its opinion in this case, assumed to be the judge as to whether an “urgency,55 as provided in section 15 of article 3, existed. Is it carelessness or fatuity which causes such an entire misstatement of fact as well as conclusion? What the court did say, in effect, was this: That as the constitution authorized the suspension by the legislature of the provisions of section 15,-
We cannot better answer the oft-reiterated claim, not argument, against the decision in this case, that it assumes that the amendments to a bill must be subjected to the same constitutional rules as the original bill, than by quoting from some of the very numerous authorities cited by the learned attorney general in his petition for a rehearing, as illustrative of the utter inutility of the rule contended for by him. We cite from Cooley’s Constitutional Limitations, fifth edition, page 167, note 3: “A practice has sprung up of evading these constitutional provisions by introducing a new bill, after the time has expired when it may constitutionally be done, as an amendment to some pending bill, the whole of which, except the enacting clause, is struck out to make way for it. Thus, the member who thinks he may possibly have occasion for the introduction of a new bill after the constitutional period has expired takes care to introduce sham bills in due season, which he can use as stocks to graft upon, and which he uses irrespective of their character or contents. The sham bill is perhaps a bill to incorporate the city of Siam. One of the member’s constituents applies to him for legislative permission to construct a dam across the Wild Cat river. Forthwith, by amendment, the bill entitled a bill to incorporate the city of Siam has all after the enacting clause stricken out, and it is made to provide, as its sole object, that Johli Doe may construct a dam across the Wild Cat. With this title and in this form it is passed, but
In this connection, and in approval of what is therein said, we will quote extensively from the decision of the Kentucky court of appeals in Norman v. Board of Managers, 93 Ky. 537, 20 S. W. 901, as follows: “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-fifths 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 wére 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 of the members elected to each House to all the provisions of the act, and that this should appear by 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 $100 originates in the Senate, and is properly passed. It goes to the House, where it is amended by making the sum $10,000, and is then properly passed by it. It returns to the Senate for concurrence, and is adopted as
Since the rendition of the opinion supra the court of appeals of Kentucky have held, in Lafferty v. Huffman, 99 Ky. 80, 35 S. W. 125, that a bill which has been properly enrolled, signed by the presiding officer of each House, and approved by the governor cannot be impeached by reference to the journals of either House to show the mode of its enactment. The latter •decision was followed by the same court in two later cases, Commissioner v. Shelton, 99 Ky. 120, 35 S. W. 128, and Commissioner v. Hardin Co. Court, 99 Ky. 188, 35 S. W. 275. Whether this change in the opinion of that eminent court was caused through fear of appearing guilty of indelicacy and disrespect toward a co-ordinate branch of government, or through fear that the rules enunciated in Norman v. Board of Managers would entail upon the court considerable labor which otherwise would not devolve upon it, or other grave reason, we •are at a loss to determine. But the doctrine announced in Lafferty v. Huffman simply places it in the power of the legislature to violate the provisions of the Kentucky constitution in ■regard to the passage of bills. Look at it practically, taking •our illustration from the decision in Norman v. Board of Managers, supra. A bill originates in the Senate, appropriating
Eespondent, in the petition for rehearing, says: "Can it be said that section 15 of article 3 of our constitution requires each amendment to a bill to be printed, or to be read on three several days? If such is the intent and purpose of the constitution, one member in either House can obstruct all legislation by simply offering amendments thereto. If all amendments, however numerous, are required to be printed, and read on three several days after printing, it would cause untold delay.” To this we answer: The offering of an amendment or proposition to change a bill is not an amendment, and does not. become such until the House in which it is offered accepts or adopts it. Then, under the express commands of the constitution, an amendment which has been offered and accepted, and thus enters into and becomes a part of the bill, must be printed, and the whole bill, not a part of it, must be read on three several days, unless, owing to the existence of an urgency, the three readings on several days be dispensed with by two-thirds of the House on an aye and nay vote entered in the journal. The presumption is that no member of either House will offer amendments merely for the purpose of delay. And if an amendment is offered to a meritorious bill which is pending in either House, merely for delay, the House
Bespondent contends that it is not necessary for the journals to show anything except what the constitution expressly says must be entered upon the journals. This would dispense' entirely with the office of the journal, and limit the entries therein to a record of the vote upon the expulsion of a member and on final passage of bills. The idea is not in accord with the spirit, and is opposed to the letter, of our constitution.
Bespondent also contends that, except as to the entry of the vote on final passage and the vote .on expulsion of a member, it is unnecessary to enter any vote in the journal unless demanded by three members under section 13, article 3, of the constitution. It is the settled rule in nearly all of the courts that when an aye and nay vote is required by the constitution an entry of such vote must appear in the journal. Our constitution says that the reading on those several days cannot be dispensed with unless two-thirds of the House, “voting by yeas and nays,” should, in case of urgency, dispense with this provision. This means that such vote shall be entered on the journal. Under section 13, three members, when they desire it, may have the vote on any motion, committee report, or any other question taken by yeas and naj's, and entered in the journal. But the vote on final passage of any bill, or on a suspension of the provision which requires the reading of bills on three several days, or on the expulsion of a member, must, whether demanded by three members or not, be by yeas and nays, and entered in the journal.
Bespondent contends that some reliance and confidence must be bestowed upon the proceedings of the legislature. This is true, and clearly intended by our constitution. The legislature is required to keep a record of its proceedings. Courts must rely upon that record, and presume it to be ab
It has been said that the decision in this ease abrogates the principle of majority rule. Does it? The people adopted the constitution, and have expressed in it the will of the majority as to the manner in which laws shall be enacted. Shall forty-nine members or any part thereof, in one House, or twent3r-one members, or any portion thereof, in the other House, be permitted to enact a law in any other manner? If so, the will of the people is set at naught, and the will of a small number of individuals substituted for the will of .the great majority. The creature must not be regarded as greater than the creator. Each of the three co-ordinate branches of our government is the creature of the constitution, subject and necessarily subordinate, thereto. In construing constitutional provisions, certain fixed and absolute rules, which the court cannot disregard, must be observed, viz.: The words of the instrument are to control. The intent of the people in adopting it is to govern. The intent of the people is to be found in the words used. The whole instrument must be examined. Words are not to be regarded as used without occasion. The words used are to be considered with reference to their usual signification. Effect must be given to the whole instrument, etc. It is needless to use further illustrations or cite additional authorities. After another full and careful consideration of this case in
Dissenting Opinion
Dissenting. — I think the original opinion in this case should be modified upon two points, at least: 1. Wherein it holds that the journals must affirmatively show that each and every requirement of the constitution has been complied with in the passage of a bill; 2. Wherein it holds that the constitutional provisions require bills to be read on three several days in each House before the final vote thereon.
As to the first point: Section 13, article 3, of the constitution of this state is as follows: “Each House shall keep a journal of its proceedings; and the yeas and nays of the members of either House on any question shall at the request of any three members present be entered on the journal.” In the opinion it is held that the meaning of the first clause of said section is that the journal must show all of the proceedings of the House and all of the steps taken in the passage of a bill. While that may be true, I do not think the silence of the journal as to some of the proceedings required by the constitution to pass a bill should be held conclusive evidence, or any evidence, to show that such bill was not regularly passed. The last clause of said section refers to and commands the entry on the journal of the yeas and nays on any question when requested by three members. Voting is a proceeding required in the passage of motions, resolutions, etc. And, if it was intended by the framers of the constitution that the first clause of said section was mandatory as to every act and proceeding of either House, what vras the necessity for the last clause of said section? If the first clause absolutely required the entry on the journals of the yeas and nays whenever a vote was so taken, the last clause of said section adds nothing thereto, and was a work of supererogation. I am of the opinion that it was not intended by the first clause of said section to have all laws held invalid where the journals failed to show that each and every step required by the constitution in the passage of a bill had not been taken. Said section clearly intimates, to my mind, that in the passage of motions, resolutions, etc., when a yea and nay vote is taken, it need not be entered on the journal, unless requested by three members, although said section
In Miller v. State, 3 Ohio, St. 475, Chief Justice Thurman, .speaking for the court, said: “Thus we have, inter alia, the provisions before quoted, that every bill shall be fully and ■distinctly read on three different days, unless, in case of urgency, three-fourths of the House in which it shall be pending shall dispense with this rule/ This is an important provision, without doubt, but nevertheless there is much reason for saying that it is merely directory in its character, and that its observance by the assembly is secured by their sense of •duty and official oaths, and not by any- supervisory power of the courts. Any other construction, we incline to think, would lead to very absurd and alarming consequences.” It is said by Mr. Sutherland in his work on Statutory Construction (page 48): “Journals are records, and, in all respects touching proceedings under the mandatory provisions of the constitution, will be effectual to impeach and .avoid the acts recorded
The weight of authority under constitutions similar to ours, so far as I have examined, is that, unless the journal affirmatively shows that some requirement of the constitution in the passage of a bill has been omitted, the presumption is that such requirement has been complied with, although the jour
On the second point in the opinion in this ease we held that amendments to a bill must be read three times on three several days, the same as the original bill. In People v. Wallace, 70 Ill. 680, it is held that the constitutional provision requiring bills to be read on three several days before their passage does
Concurrence Opinion
Concurring. — I concur with the views. expressed in the opinion of Mr. Justice Huston in this case. His conclusions, and the reasons given therefor, I regard as being in- perfect harmony with the letter and spirit of our constitution. Mr. Chief Justice Sullivan, while concurring with the conclusion reached in this case, does not agree with the majority opinion on two points which I» will briefly discuss.
1. That the legislative journals must affirmatively show a compliance with the -requirements of the constitution in the passage of a bill, the validity of which is questioned. Upon this point we are cited to a number of authorities, and furnished with a number of quotations. But a careful study of the authorities cited is all that is needed to show that the rule therein announced is based merely upon precedent — because some court has so decided — and not upon reason and common sense, the basis and foundation of all law. The careful and painstaking student finds many inconsistencies in the authorities touching constitutional questions. A careful study of the adjudicated cases leads to the conclusion th.at both the legislative and judicial departments of government of several of our states have chafed under the limitations and restrictions imposed by constitutions, and that they have at times done indirectly what the constitution directly forbids. In one case cited by Mr. Chief Justice Sullivan the constitution prohibited the introduction of any bill after the fiftieth day. A bill to incorporate a township had been introduced in due season, but after the fiftieth day a substitute for this bill, incorporating a city outside
As evidence of the inconsistencies of writers upon constitutional law, read the quotations from Mr. Sutherland, Judge Cooley, and Mr. Black given by my associates in this case. Then carefully study all of the authorities cited. How, then, are we to determine whether a bill becomes a law or not? In my opinion there is but one way to ascertain, and that is to
The functions of the legislature consist exclusively in making laws, with but few exceptions. Then why command it, in the supreme law of the land, to “keep a journal of its proceedings,” unless the journal is to show what bills have been enacted inte law? Mr. Chief Justice Sullivan says in his opinion that the first clause of section 13, article 3, of the constitution, “commands the legislature to keep a full and complete journal of its-proceedings.” This is undoubtedly true, and it is apparent that the object of this provision is to make the legislature show what it has done, leaving nothing whatever to implication. And,, when the legislature says what it has done with regard to the^ passage of any bill, it negatives the idea that it has done anything else in regard thereto. Silence proves nothing where one is commanded to speak. But in such case the refusal of the witness to say that he did that which he should have done would justify the presumption that he did not do it. Our constitution commands certain things to be done in regard to the passage of a bill, and says that no bill shall become a law unless these things are done. It seems a travesty upon our supreme law to say that it guarantees to the people the right to have their laws made in this manner only, and that there is no way-of enforcing this right, or for the court to say that this is law when the constitution says it is not law. There is one safe course which is in harmony with the constitution, and that is to adhere to the rule that the legislature must show, as commanded by the constitution, that it has done everything re
Our views of the good faith and integrity of the legislature • can best he expressed by quoting the language of the supreme court of the state of California in the case of Weill v. Kenfield, 54 Cal. 111, as follows: “To our respect for a co-ordinate department of the state government is added our personal regard for the distinguished gentlemen who have so ably presented the view of this case from which we have felt constrained to dissent. We might freely admit that none of the restrictions of' the constitution would be necessary to the proper discharge of their- duties by the honorable gentlemen who compose the present assembly. But the people may not always he so happy in the choice of their representatives, and we deem it our- duty to require a strict compliance with mandatory provisions intended to prevent evils in the past, and which may reappear in the future.” The doctrine of presumption, as applied by Chief Justice Sullivan to the passage of bills, originated in-England, where they have no written constitution. The Eng-