91 Mich. 78 | Mich. | 1892
Lead Opinion
This proceeding brings before us for examination Act No. 200, Laws of 1891, being a revision, of the general tax laws of the State.
It is claimed — First, that this purported statute, as it. appears upon the statute-book, was not duly enacted;, and, second, that the law as promulgated is in parts-unconstitutional.
I. It has been repeatedly held that the Court may-look beyond the engrossed bill to the legislative journals with a view to ascertaining whether the Legislature enacted the statute. This has long been a recognized power of the Court, frequently invoked. People v. Mahaney, 13 Mich. 492; Attorney General v. Joy, 55 Id. 94; Attorney General v. Burch, 84 Id. 408. In many of the-states the courts have denied that this power rests with the judiciary, and have held that the engrossed bill, duly-authenticated, is final, and cannot be impeached. This Court, while adhering to the view that the journals are-open to inspection, has frequently, and particularly in the latter cases, held that every iDtendment is in favor
The history of the present' statute, so far as it is important to be noted, is as follows: On June 29, after the bill had been amended, it was voted “ that the bill be laid on the table, and ordered printed as a supplement in to-day's journal." The bill had the file number 340, and was a substitute for House bill No. 178. A supplement to the House Journal was printed as of the date June 29, with the heading: “File No. 340. House of Representatives. Substitute for Senate Bill No. 178. (Introduced by Mr. Doremus.) Ordered printed for the use of the committee on judiciary. Lansing, June 29, 1891," — . followed by the title. The bill contained 116 sections. On June 30, Mr. Doremus moved that House substitute for Senate bill No. 178 (title No. 340) be taken from the table and placed on its immediate passage, which motion, ■prevailed. The question being on the passage of the bill; the bill was read a third time, and pending the vote on the passage thereof, on motion of Mr. Doremus, the bill was laid on the table. On July 1, Mr. Doremus moved that House substitute bill No. 178 (file No. 340) be taken from the table and put on its immediate passage, which motion prevailed. Numerous amendments were then made to the bill, and after sUch amendments the bill duly passed the House, which was the final action taken by the House on the bill. If it be the fact that the bill as printed was the bill with which the House was dealing on July 1, it is entirely clear that the bill as it passed the House is not the bill engrossed and signed by
It is claimed, however, that the journal itself furnishes on its face evidence that after the bill in question was printed in the journal the House dealt, not with the printed bill, but with some other instrument, and that it is fairly to be inferred from what appears on the face of the journal that there were errors in the printing of the bill which the House discovered, and which led to the abandonment of the printed copy appearing in the journal. These evidences are as follows:
1. It appears that the House took up the bill by its title and reference as printed in the journal, and before taking action on it laid it on the table, and that, when the bill was again taken up, it was referred to, not as a substitute for Senate bill 178, but as a substitute for House bill 178, which it really was.
2. The amendments offered from time to time do not correspond with the bill as printed. As, for instance, ■one amendment offered ivas by inserting in line 1 of .section 33, after the word “time,” the words “or upon ■any mortgage or other obligation taxed as an interest in lands owned by such person as provided by this act.” Not only does it appear by section 33 as printed that ■the word “time” does not appear in line 1, but it further appears that there is no provision in section 33 to. which the proposed amendment is in any way germane. Without tracing all the instances through, it appears beyond cavil that the amendments could not
3. The bill as printed had its sections numbered consecutively, and was not after being printed considered at all in committee of the whole; and yet we find on July 1 the following in the journal:
“Mr. Doremus stated that certain sections of the bill had been stricken out and some added in the committee of the whole, which, with the above amendments, would not leave the sections in consecutive order; and thereupon Mr. Doremus further moved to amend the bill by directing the engrossing and enrolling committee to renumber the sections of the bill so that they should be numbered, as near as may be, by consecutive numbers; which motion prevailed, and the sections of the bill were thereupon accordingly renumbered.”
This action of the House makes it entirely clear, not only that the House was not dealing with the bill as printed in the journal, but also that it was not dealing with an exact copy of the same. It appears, however, that this last-quoted section does not appear in the House Journal as it was printed from day to day; and it is suggested, therefore, that this must be disregarded. But it •does appear in the bound volume published by authority and certified by the clerk of the House. The daily journal, as printed, is subject to amendment. Are we at liberty to infer that this emendation is a forgery? It seems to me that the case of Attorney General v. Burch, 84 Mich. 408, furnishes a decisive answer to this question. In that case the journal as printed from day to day, and as printed in the bound volume, showed the following:
“Mr. Wesselius moved to reconsider the vote by which the Senate passed the bill, which motion prevailed. The •question being on the passage of the bill, on motion of Mr. Wesselius, the bill was ordered returned to the House.”
At the close of the Senate Journal, and preceding the
“ Errata in the Record of Bills. * * * On page 811,. lines ten and eleven, the vote reconsidered was not the passage of the bill, but the vote by which the Senate concurred in the House amendments to the bill on page 797.”
The Court say:
“ It does not affirmatively appear at what time the secretary made this correction of the record, but it is to be presumed, from the place where the errata is found, that he made it on or before the date of his certificate, July 3,. 1889, as the certificate follows the correction. The Legislature adjourned sine die upon that date; and, as every intendment is to be taken in favor of the correctness of' legislative action, it must also be presumed that the correction was made- before the adjournment of the Senate. If it was done, as we must presume that it was, before-the final adjournment of the Legislature, we must also presume that it was authorized by the Senate, and that the true journal entry of the proceedings is as corrected by the ‘errata.’”
So in the case of the law under consideration. The House adjourned July 3, 1891. The certificate of the clerk bears date July 3, 1891, and as the correction to-the daily journal as originally printed appears before his-certificate, and indeed as of a prior- date, we must presume that it was made before the final adjournment of the Legislature, and we. must also presume that it was-authorized by the house.
In McCulloch v. State, 11 Ind. 424, the court, in speaking of such records, said:
“This journal must be held conclusive evidence of the facts which appear on its face, because it must be presumed that the members as a body inspected it and made all necessary corrections before they allowed it to assume the character of a journal of their proceedings. As well might evidence be received to contradict a statute to show that it contained certain provisions inserted through*85 mistake as to contradict an entry made upon tbe journal. The house keeping the journal is the only tribunal by which it can be corrected, and, until corrected by such authority, it must be considered conclusive as to the facts which it contains.”
In the case of' Turley v. Logan Co., 17 Ill. 151, it was held that the journals must show that the constitutional requirements have been observed; but in that case the journals having been produced, and it appearing from ■the minutes of the clerk that the same legislature had ■corrected their journals at a subsequent session so as to conform to the constitutional requirements, this was held to be sufficient, and the law was sustained.
In Post v. Supervisors, 105 U. S. 670, it was said:
“By virtue of the statute of Illinois of February 12, 1849, the copies of the original daily journals kept by the ■clerks of the two houses, made by persons contracted with or employed for the purpose, as authorized and •directed by that act (though not sworn public officers), in well-bound books furnished by the secretary of state, pursuant to the duty thereby imposed upon him, and afterwards deposited and kept in his office, are official records in his custody, copies of which, certified by him, are admissible, upon settled rules of evidence, as well as by the decision of the supreme court of Illinois in Milter -v. Goodwin, 70 Ill. 659; and neither the competency nor the effect of such copies is impaired by the loss or destruction of the daily journals or minutes.”
In Attorney General v. Rice, 64 Mich. 385, Mr. Justice Morse uses the following language:
“Are these journals kept by the clerk of each house, and read and corrected each day by each body, and duly certified by the proper officers to be correct, to stand as conclusive evidence of their proceedings, or are they liable to be disputed and overthrown by parol testimony, either of individual officers and members, or of strangers, who may be interested in nullifying legislative action? It would seem that there can be but one answer. The legislative record must prevail. Any other' ruling would necessarily lead to dangerous and alarming results.”
Some of my brethren are of the opinion that the supplement referred to • cannot be treated as a part of the journal; that, as there is no requirement that bills shall be printed in the journal, the order entered on June 29 for the printing of the bill in question should have been construed as having been made for the convenience of the members, and not with the intent that the bill when printed should become a part of the journal. While not assenting to this view, I think-it is clear that, if it be treated as a part of the journal, yet, for the reasons stated, it is not possible to say that the bill with which the House was dealing was the one printed in the supplement.
Attention has been directed to an unbound portion of the journal, with paging corresponding to that in the bound volume, and it is suggested that this demonstrates that the statement purporting to have been made by Mr. Doi’emus was inserted after the Legislature adjourned. But as well might it he said that the printer’s proof-sheet, before correction, is more authentic than the corrected publication. No such view can be adopted, unless we reverse the usual doctrine in such cases, and start out with the presumption that the clerk of the House has falsified instead of correctly certifying the record. This I am not prepared to do.
II. It is claimed that so much of the statute as provides for the taxation of the mortgage interest in lands,
The provisions of the law, so far as necessary to be-noted, are as follows:
“ Section 2. Any real-estate mortgage, deed of trust,, contract, or other obligation, by which a debt is secured, when land within this State is' pledged, * * *' shall, for the purpose of assessment and taxation, be deemed and treated as an interest in the land so pledged.”
Section 17 provides that “the value of the property affected by such mortgage, * * . * less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof.”
Section 15 provides that in making the assessment roll the value of the interest in such real estate represented by a mortgage, deed of trust, or other obligation shall be set opposite the name of the owner, and the-value of the interest of the owner of the fee, less the-value of the mortgage or other interest, shall be set down opposite the names of the owner and occupant.
Section 17 further provides that the taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security. If paid by the mortgagor or holder of the real property, such portion as was assessed to the mortgagee shall be considered and. treated as payment on any interest that may be due, or, if there is no interest due, then as payment of so much of the principal. If paid by the mortgagee or holder of the security, such portion as was assessed to the mortgagor or owner of the fee shall become a lien upon the land, and be added to all other obligations. It is further provided that neither the mortgagee nor the mortgagor shall be at liberty to pay so much of the tax as is assessed against the other until the warrant has been in the h-ands of the collector 30 days; thus affording the party assessed the opportunity himself to pay the tax in the first instance.
The case of Robertson v. Land Commissioner, 44 Mich. 274, does not conflict with these views. What was held in that case, in effect, was that authorizing the one party to. the contract to refuse performance until evidence-should be produced of -the payment of the tax was in the nature of a penalty, and not a means of collecting the tax directly. But the Court say:
“It must no doubt be admitted that the State may provide modes for collecting its revenues that will seem harsh, unreasonable, and arbitrary. Some such are to be found in the laws of Congress, as well as in the legislation of the states. The judiciary would not venture to indicate limits to the power of the sovereign in this regard, so long as its laws were general and impartial/*'
The case of State Tax on Foreign-Held Bonds is apparently in conflict with these cases. The doctrine of that case was announced by a bare majority of the court, and ■ought not to be treated as binding authority, except as to the precise questions before the court. The law which the court had under consideration provided that—
“ The president, treasurer, or cashier of every company, except banks or savings institutions, incorporated under the laws of this commonwealth, doing business in this state, which pays interest to its bondholders or other •creditors, shall, before the payment of the same, retain from said bondholders or creditors a tax of five per •centum upon every dollar of interest paid as aforesaid.”
In the opinion of the majority of the court, Mr.
“The question presented in this case for our determination is whether the eleventh section of the act of Pennsylvania of May, 1868, so far as it applies to the interest on bonds of the railroad company made and payable out of the state, issued to and held by non-residents of the state, citizens of other states, is a valid and constitutional exercise of the taxing power of the state, or whether it is an interference, under the name of a tax, with the obligation of the contracts between the nonresident bondholders and the corporation.”
It will be seen that the court was not dealing with a-statute which in terms imposed a tax upon a mortgage interest in lands. This statute was a clear attempt to-tax credits distinctively as such, and applied alike to bonds secured by mortgages, and to those which were not so secured. In that respect it is distinguishable from the statute of Michigan, as our statute, in all its provisions relating to the subject, imposes a tax upon an interest in real estate as such. It seems to me that the-case is not given any added force as authority here by the fact that the particular bonds in question were secured by mortgage, for the attempt was not to tax the-mortgage interest in lands, but to impose a tax upon the-bond itself, which the court held to have a situs at the domicile of its owner.
So in Latrobe v. Baltimore, 19 Md. 20, it was held that the situs of the mortgage was the domicile of the-owner, and that such owner could not be taxed where the property covered by it was located. But in the opinion it is said:
“We are not aware that the acts of the assembly regulating the imposition and collection of taxes have effected any modification of the rules of law which otherwise must govern the determination of this question.”
So it will be seen that the question of the power of
The law provides for the assessment as personal property •of “all shares in banks organized in this State under any law of this State or of the United States at their •cash value, after deducting the value of the real estate taxed to the banks.” As to insurance companies, it is provided that, “in computing the taxable property of insurance companies organized under the laws of this •State, the value of the real property on which a company pays taxes shall be deducted from its net assets above liabilities,” as ascertained at the last report.
I think the intent is clear to treat mortgages as real estate, and that the interest in real estate so taxed to banks and insurance companies may be deducted from the shares of stock as assessed. See Insurance Co. v. Com., 137 Mass. 80. It is said that the amount of mortgages held by savings banks in many cases greatly exceeds the capital stock, so, if the amount for which such mortgages are assessed is deducted, there will be no tax •on their shares; and this state of things is urged as a reason why the Legislature could not have intended to tax mortgages held by these institutions. But, on the
It is also contended that, if the statute be construed so as to admit of taxation of mortgages of savings banks as real property, the result is double taxation in many cases, inasmuch as the mortgages represent deposits, and the depositors are required to pay a tax. I do not think -this amounts to double taxation, in any objectionable sense. If the banks hold property subject to taxation in ■excess of their actual capital, the case is no harder for them than it is in the case of any individual taxed for the value of the property owned by him, though he may ■at the time be indebted to the amount of nearly or quite its full value. In Cooley on Taxation (page 160) it is said:
“Now, whether there is injustice in the taxation in ■every instance in which it can be shown that an individual who has been directly taxed his due proportion is .also compelled indirectly to contribute, is a question we have no occasion to discuss. It is sufficient for our purposes to show that the decisions are nearly, if not •quite, unanimous in holding that taxation is not invalid because of any such unequal results. It cannot be too • distinctly borne in mind that any possible system of tax legislation must inevitably produce unequal and unjust results in individual instances; and, if inequality in result must defeat the general law, then taxation becomes impossible, and governments must fall back upon -arbi■trary exactions/'’
It is not within the power of this Court, as I under
I thing the mandamus should issue as prayed, commanding the board of assessors—
1. To assess the value of any land contract to the owner of such security as real estate.
2. To assess as real estate, to the owner thereof, the value of any real-estate mortgage executed either before or after the law of 1891 took effect, and whether held by residents or non-residents of this State.
3. To assess to savings banks or insurance companies, as real estate,, the value of any real-estate mortgages owned by such banks or insurance companies, and to deduct the value of all real-estate mortgages owned by any-savings banks or insurance companies from the value of the capital stock of such banks as determined for assessment purposes.
There is no better settled rule of law in this State than that, in the investigation of a question whether a law has been properly and constitutionally passed by the Legislature, every presumption and intendment are strongly in favor of its due enactment; and if the journals are resorted to, the law can only fail where it conclusively appears from such journals that constitutional methods were lacking in its passage.
In the law before us, we have:
First. The law published in the Public Acts, which are made presumptive proof that the laws therein con
Second. We find in the office of the Secretary of State, where it is provided it shall be kept, the duly enrolled and engrossed manuscript act, signed by the speaker of the House, the president of the Senate, and the Governor. This engrossed act agrees entirely with the published law. Here we have, again, another strong presumption in support of the proper passage of the act, which we thus find enrolled and certified by the proper officers.
Third. We now. go to the journals of both houses, published by authority of law and certified to be correct by the proper officers, and the only journals that the Constitution or laws prescribe shall be kept and preserved as journals of the Legislature, and find nothing in such official journals militating against the proper and constitutional passage of the act in question. These journals are also presumed to be correct, and it is doubtful if they could be overthrown by parol proof.
Fourth. This bill was read section by section, at length, just before its passage. It is to be presumed that the Legislature knew what was being voted upon.
Fifth. It was reported to the House as correctly enrolled and engrossed, and the presumption is that it was.
Sixth. Fortunately, although not required by law to be preserved, the original bill itself, as passed, with its erasures, amendments, and riders, is found in the office of the Secretary of State, and upon examination is found to be identically the same as the published law.
This bill could not be resorted to in order, by its discrepancies, if any there were, to defeat the law, yet it establishes the fact that there is no difference between
Senate substitute bill No. 64 (file No. 464), the general election law. “On motion of Mr. Diekema the bill was ordered printed as a supplement to to-day's journal.'' House Jour. 2143.
And House bill No. 538 (file No. 269) charter of the city of Detroit. “The bill was then ordered printed as a supplement to the journal, referred to the committee of the whole, and placed on the general order.” House Jour. 2031.
Neither of these supplements is found in the published volumes of the House Journals. This effectually disposes of the claim that the supplement of June 29 was left out of the published journals for fraudulent purposes, and also establishes the fact that, under legislative practice, these supplements are not considered as parts of the journal, but that they are the mere printing of bills for the convenience of the members, and can be no more used to stultify or contradict the journals than can any other printed copy of a bill laid upon the desks of members, and used by them for reference during the session. The natural as well as the legal presumption is that these supplements were printed, as other bills are printed, for the convenience and use of the members, and that it was not the intention of the Legislature to make them a part of the journals. This natural and
If this supplement can be used here, then any other purported supplement, or any paper purporting on its face to be a portion or a part of the printed daily journals of the Legislature, can be brought into court at any time to dispute and impeach the authenticity of the official journals published and bound by the State printer by authority of the Legislature, and certified to be correct by the clerk of the House and the secretary of the Senate. It will not be necessary, under the reasoning of the argument in favor of this supplement, to inquire where the paper came from. It will be conclusively presumed that it is an exact copy of those that it will also be presumed were laid upon the desks of the members of the Legislature; and whether picked up in the street, or found in the files preserved by some one, by whom it was received in the mails, it will, by presumptions never before indulged in in favor of any document, and without proof, because no proof can be received, stand in the courts as the journal of the Legislature for the day or days it purports to cover, and, if it conflicts with the published journals, the latter must fall. It is to be hoped that no such dangerous precedent as this will ever be established by this Court.
As for myself, from the beginning, I have regarded this supplement — as the Legislature evidently regarded it — as no part of the journals; and a. patient and laborious investigation of the journals in connection with it,
This case is not at all like the case of Rode v. Phelps, 80 Mich. 598. In that case the bill under consideration was found printed in the body of the journal as it came from the Senate. “The bill as amended was ordered printed at length in the journal. The bill is as follows:” (Then follows the bill in full.) See House Jour. 1889, p. 1792. Every subsequent alteration of the bill as printed appears upon- the journals, and it was never read again in the House, and it was finally passed by a concurrence in the report of the conference committee of the two houses. No presumptions were indulged in in that ease, because everything appeared plainly and conclusively in the official journals, and there was no possible escape from the fact that the bill, as signed by the Governor, never passed either house of the Legislature.
The writ must issue as prayed.
Concurrence Opinion
I concur in the views expressed by Mr. Justice Montgomery as to the constitutionality of the act in question. ■ . .
Respecting the enactment of the law, I. do not regard
The bill was originally ordered printed for the use of the committee. House Jour. 1246. The committee reported a substitute on June 19, which was also printed for the use of the House. Id. 2050. This print was known as “ Substituted for House Bill No. 178 (File No. 340).” On June 29, after it was again reported, it was •ordered printed as a supplement to the journal. Hence, we have three distinct prints of the pending bill, two of which were presumably in the usual form of printed bills, with numbered lines and wide spaces between the lines, and the other printed in double columns on daily journal size paper, without numbering of lines, and with ordinary spacing. On June 29, “Mr. Doremus moved that the bill be laid on the table, and ordered printed as a supplement in to-day’s journal.” Prior to this time the .several prints of the bill had been considered in committee, reported with amendments, and had been considered in committee of the whole. In the supplement the print was entitled, “Substitute for Senate Bill No. 178.” On June 30, “Mr. Doremus moved that House substitute for Senate bill No. 178, entitled,” etc., be taken from the table, and on motion by same party said bill was again laid upon the table. It is significant that in this
On July 1, on motion of Mr. Doremus, House substitute bill No. 178 (file No. 340), was taken from the table and put upon its passage. A large number of amendments were offered by Messrs. Doremus, Dafoe, Connor, and Richardson:
1. To strike out of line 9 of section 11 the words “to-hire," and insert, etc. Line 9 uf section 11 of the supplement print is as follows: “Procuring any such property to be manufactured upon contract shall be."
2. By adding to section 11, line 33, after the word “assessment," the words, etc. Line 33 of section 11 reads thus: “Any shed, shall not be deemed in transit, but shall be assessed to the."
3. To insert in line 12 of section 15, after the word “properly," the words, etc. Line 12 of section 15 reads as follows: “The quantity of land comprised in any town, city, or village."
4. To insert in line 1 of section 33, after the word “time,” the words, etc., and to insert in line 10 of section 33, after the word “necessary,” the words, etc. There is no such word as “time" in the first 10 lines of section 33, and no such word as “necessary" in the-tenth line.
5. To strike out of line 40 of section 34 the word “assessment," and insert, etc. Line 40 of section 34 reads: “Collected as hereinafter provided, and shall give his receipt therefor. The."
6. To strike out of line 5 of section 38 the word “ a;" but line 5 of section 3.8 contains no such word.
7. To strike out of lines 8 and 9 of section 38 certain words; but the words do not occur in lines 8 and 9, and do occur in lines 9 and 10.
9. To insert in line 7 of section 48, after the words “and the;" but no such words are contained in line 7.
10. To insert in line 3 of section 48, after the words’ “ State and;” but line 3 has no suGh words.
11. To strike out all of section 48 between the words-“each year" in line 15; but line 15 contains no such words.
12. To insert in line 17 of section 55, after the words-“sold for the,” etc.; but line 17 of section 55 contains no such words.
13. To strike out of line 21 of section 60 the words-“Auditor General," and insert, etc.; but the words-“Auditor General" do not occur in line 21 of section 60.
14. To strike out of section 71, commencing with the word “shall," in line 5, etc.; but the part stricken out. commences in line 6.
15. To strike out lines 9 to 23, inclusive, of section 71; but the part actually stricken out includes 14 other-lines which appear in the supplement. The journal' strikes out 15 lines, whereas 39 lines, as they appear in-the supplement, were actually stricken out.
It does not appear that the bill was considered in committee or in committee of the whole after it was ordered printed in the supplement. The California mortgage tax system, and the county system for the collection of delinquent taxes, refer to provisions which at the time-were already incorporated in the bill, as indicated by the resolutions themselves. House Jour. 2167, 2168. The supplement print, however, contains sections 43, 44, 64, 65, 66, 67, 68, and 69, which do not appear in the law as published, and sections 20, 21, 51, 63, 67, 74, 75, 76a, 78, 79, 81a, 815, and 82, contained in the law, do not appear-in the supplemental punt; and nowhere does the journal, after the print was ordered in the supplement to the-journal on June 29, refer to any amendment striking out-either óf the sections 43 to 69 above named, or to the incorporation of sections 20 to 82, inclusive, above
It cannot be presumed that four different members •of the House, each offering amendments, had before them this supplemental print, when every amendment that was offered refers to some other print of the bill. The ■supplement print contained no numbered lines. The numbered lines appeared only in the other prints of the bill, which existed before the print. was ordered in the ■supplement to the journal. If either of the four members offering amendments had before him a copy of the bill which was being considered by the House, in which the lines were numbered, he must have had a copy previously made. If the clerk had a copy in which the lines were numbered, he too must have had a copy of
It will not do to say that this supplement print received-certain amendments which appear upon the journal; for none of the 16 amendments above referred to are directed to or aimed at the said print, and none of the other amendments offered necessarily refer to said printed copy. There is not a figure, line, or sentence in the journal of' July 1 that necessarily refers to the print contained in the journal supplement. On the other hand, the 16 motions to amend, enumerated above, refer to som& other print which was then before the House, in the hands of the members offering amendments, before the-clerk, and understood by the members of the House generally. The House had the undoubted right to disregard this print in the supplement. So far as we know, it may have been incorrectly printed. Some other copy than that intended may have been printed. The House had a clear right to discard this print for any reason,, and to take up either of the other prints. They had been presented, referred to the committee, reported with amendments, and considered in committee of the whole. No House rule or parliamentary precedent can be invoked to defeat legislation. Every amendment offered can be-found in the act as passed in its proper place, with the proper context. Sixteen of the amendments offered cannot be associated with the supplemental print without doing violence to the express language of the journal. If the validity of the act passed is to be tested by
It being clear that some copy of the bill other than the supplement print was before the House when the •amendments were offered, the natural presumption is that the House kept that copy in sight, and that this is the same copy that was read a third time and passed. The committee on engrossment and enrollment report the bill “as correctly enrolled, signed, and presented to •the Governor,” and the Governor approves the bill so ■engrossed and enrolled. The passage of the act intervened between amendments and enrollment. The same theory, .and the only theory, that explains the journal entries when the bill was before the House for amendment,
Concurrence Opinion
I fully concur in the views expressed in the -opinion by my Brother Grant, in which it is held that the act signed by the Governor is not the act which passed the Legislature, and is therefore void. Aside from that, conceding that the act signed is the one which passed the Legislature, as held by the majority of the Court, there are many provisions which, in my opinion, ■should be held unconstitutional.
The whole scheme of the act for taxing mortgages is that the owner's interest and the mortgagee's interest ■shall be taxed separately. Section 17 provides that—
“If the said mortgagee shall neglect or refuse to pay the tax assessed to him as the holder of any such mortgage, deed of trust, contract, or other obligation, the treasurer shall proceed to collect the same from the mortgagor or holder of the said real estate in the same manner as is provided by law for collecting other taxes; .and any delinquent tax accruing by reason of the failure to collect the tax assessed upon any such mortgage, deed of trust, contract, or other obligation may be returned ■against the said land in the same manner as other delin■quent taxes.”
The act applies as well to existing mortgages as those hereafter given, and to mortgages held by non-residents .as well as those held by residents.
The scheme for taxation is as follows: The assessing officer, in the first column of his roll, is to set down a description of the land. In the second column, and •opposite to the description, he gives the name of the
At first blush, this would seem to be just and equitable. But let us look at the means of collection. It often happens that taxes are not paid. The mortgagee may be a non-resident and fail to pay the tax, or the mortgagor may be a non-resident and fail to pay upon his interest. If the tax is not paid, and there can be found no personal property of the owner of the land from which the tax can be collected by distress, the whole tax upon the land and upon the mortgage interest is made a lien upon the land, for which it can be sold; and thus the land of the owner is sold to pay a debt of •(¡he mortgagee. It is also provided that, if the owner of the fee has personal property, not only his portion of the tax may be collected from him, but the taxes upon the mortgage interest may also be collected from him, by distress and sale of his personal property. The tax upon the mortgage interest is not against the mortgagor, but against the mortgagee, and yet the personal property of the mortgagor may be seized and sold for such tax. It is true that the law provides that the mortgagor, upon payment of the mortgagee’s tax after 30 days from the time the roll goes into the hands of the collecting-officer, or upon the payment by distress and sale of the goods and chattels of the mortgagor, may have the same treated as a payment upon the interest that may be due on the mortgage, and, if • no interest is due, then as a.
It will be seen from this that whatever the contract may be, as stipulated in the mortgage, between the mortgagor and the mortgagee, and though not a dollar is due upon the principal or interest of the mortgage, and not a dollar to become due for five years thereafter, yet the collecting officer is authorized and empowered under the act to seize for the debt of the mortgagee the last piece of personal property the mortgagor has; for there are no exemptions from seizure and sale from taxes under this act. Under certain circumstances, it is distressful enough for a man to be compelled to surrender the last article of personal property he possesses to pay his own tax; but to say that this distress may be visited upon him to pay the debt of another is not only monstrous, but clearly beyond the constitutional power of the Legislature. The Constitution, y article 4, § 43, provides that—
“ The Legislature shall pass no bill of attainder, ex post facto law, or law impairing the obligation of contracts.”
Under the circumstances above stated the mortgagor would be compelled to pay upon his mortgage the amount of the mortgagee’s tax, five years before any amount was due thereon. This compulsion of payment precipitates the maturity of the obligation, and changes the contract between the parties, in violation of the above provision of the Constitution.
In Lyon v. Receiver of Taxes, 52 Mich. 271, it appears that' a tax was assessed against Cornwell, Price & Co., a
“ Several cases decided by' this Court have been referred to as supporting this position, but they ar.e not applicable to the facts in this case. This was not the case of a person whose property had been illegally assessed, and against whom the collector’s warrant ran, but an attempt .to take the property of one person to pay another person’s tax. This cannot be done, under our Constitution or laws. It would be the grossest injustice, and finds no support in the decisions of this Court,”
But, again, if the mortgagee does not pay the tax,, and ■it is not collected of the mortgagor by distress,' it becomes a lien upon the land of the mortgagor, and thus the property of the mortgagor is taken to pay the mortgagee’s taxes. Under this law the assessment or listing and ■.valuing of property is made in April or May, but no
Mr. Justice Campbell, in Attorney General v. Supervisors of Sanilac Gounty, 71 Mich. 31, says:
“ K mortgage, under our legislation, conveys no legal ■or equitable estate in land. It is no more and no less than a collateral secui'ity upon land, which has no value in itself, but depends entirely on some outside obligation, from which it is inseparable. If it is given to secure a debt, it belongs to the owner of that debt, and passes with it to any lawful holder, without assignment. If ■the debt is negotiable, it passes to any one to whom the paper belongs. If it is given to secure several debts or several installments, it belongs ratably to as many persons as there are owners of these. It may be given by way of indemnity, and in that case it may never have*116 any money value. It may be given for a debt amply secured by other mortgages on other property, or it may be on property already so heavily incumbered as to make it no security at all. So the mortgagee may be a mere-trustee, with no interest himself in it.”
There are many other circumstances which might be stated where it would be impossible to separate these interests, and enforce the payment of the tax out of the goods of the mortgagor, without violating the obligations-of the contract.
The obligation of a contract is the law which binds the parties to perform their agreement. Sturges v. Crowninshield, 4 Wheat. 197. In Green v. Biddle, 8 Wheat. 84, it was said:
“The objection to a law on the ground of its impairing the obligation of a contract can never depend upon the extent of the change which the law effects in it. Any deviation from its terms by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are,- however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation.”
“One of the tests,” say the court in Bank v. Sharp, 6 How. 327, “that a contract has been impaired, is that its value has by legislation been diminished. It is not,, by the Constitution, to be impaired at all. This is not-a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force.”
In Bourgette v. Williams, 73 Mich. 214, it was said:
“The obligation of a contract is said to consist in its-binding force on the party who makes it. This depends-upon the law in existence when it was made. These laws are necessarily referred to in all contracts, and form a part of them, as the measure of the obligation to perform them by one party and the right acquired by the other; and, if any subsequent law affects to diminish the duty or to impair the right, it necessarily bears upon the*117 •obligation of the contract in favor of one party to the injury of the other.”
At the time these prior mortgages were made, the law then in force did not permit the mortgagor's property to •be seized to pay the tax of the mortgagee. It is now sought by the present’ law to authorize such seizure. To my mind, no plainer case could be stated where an attempt is made by the Legislature, by subsequent enactment, to impair the obligation of existing contracts; and these unconstitutional provisions are so interwoven in the law that no part of it can be carried out.
This position is sought to be answered by the proposition that, inasmuch as it would be competent for the Legislature to cause the entire value of the land to be assessed to the mortgagor, therefore it does not impair the obligation of the contract between the mortgagor and the mortgagee to compel the mortgagor to pay that qrart of the tax assessed to the mortgagee. The illustrations of the workings of the law before given are sufficient answers to this proposition. Under the present law the mortgage interest is not assessed to the mortgagor at all. It is assessed to the mortgagee, and then the tax may be collected by distress of the property of the mortgagor; and in the last illustration used, the assignee of the mortgagee, if he procures it before the tax becomes a lien, and for value, takes it freed of any •obligation to pay to the mortgagor after payment by him ■of the tax. Again, let it be supposed that one class of .mortgagees pay their taxes, and thus relieve the mortgagors of the burden. Another class of mortgagees fail to pay, and the mortgagors are compelled by distress to make the payments. We have the anomaly of the Legislature compelling in one instance tha payment of a part of the tax upon the land by the mortgagee, and in .another case, where the mortgagee does not pay, compel
It is also said that the imposition of this burden upon the mortgagor does not impair the obligation of contracts, for, if the mortgagee does not pay, the State simply appropriates so much of the fund which the mortgage represents as is necessary to pay the tax before it. reaches the mortgagee. In other words, it is proposed to permit the State to take the money of one man to-pay the debt of another, or to appropriate a fund not yet due and compel its payment before due; that is, compel the mortgagor to make payment upon his mortgage long before anything is due thereon, so that the State may get its revenues, — the very thing which the Constitution prohibits. The assumption that this may be done is based upon the idea, as before stated, that the Legislature might in the first instance have compelled the assessmént upon the land of the whole tax. The idea upon which the act was brought into existence was that this was unjust, and a burden upon the land owner, from which he ought to he relieved, and therefore the part which the mortgage bears should be assessed against, the holder of the mortgage. This undoubtedly could have been done, if the Legislature had confined the provisions of the act to mortgages thereafter made; but it is beyond the power of the Legislature to change existing contacts between the parties to the extent pointed out.
Many mortgages contain a provision that the mortgagor shall pay all the taxes assessed on the land. By the act the Legislature attempts, in violation of such contracts, to divide the tax, and compel the payment of a part of it by the mortgagee, which by section 35 of
“If any person shall neglect or refuse to pay any tax assessed to him, or upon any mortgage or other obligation taxed as an interest in lands owned by such person, as provided by this act, the township treasurer shall collect the same by seizing the personal property of such person, to an amount sufficient to pay such tax, fees, and charges for subsequent sale, whenever the same may be found in the county, from which seizure no property shall be exempt."
The law under which the mortgage was given did not"prohibit the entering into contracts by which the mortgagor was compelled to pay the tax assessed upon the’ whole land. The contract in the mortgage is that the-mortgagor shall pay the tax. The Legislature now provides that the amount of the mortgage shall be deducted/ from the value of the land, and that the mortgagee shall! pay the tax on that part, and compels the payment by-distress of his personal property. A bare statement of this proposition shows a violation of the Constitution, as it clearly violates the obligation of the contract.
The whole scheme of taxation of mortgages, and the collection of the taxes thereon, by the methods pointed out by this act, is so defective that for this reason the whole-act should fail. Let us take a few examples of the practical workings of the scheme. The mortgage interest is to be assessed in the taxing district where the land is situated-In case the mortgage covers lands in more than one taxing district, which is frequently the case, the law provides as to future mortgages, when this is shown to be the case, that they shall not be entitled to record unless-there be appended a statement showing the proportionate amounts to be assessed as an interest on each parcel in the different assessing districts. There is no sufficient provision in regard to existing mortgages for ascertaining-
“ It shall be the duty of the holder of any such mortgage * * * to file with the supervisor or other assessing officer of the township or assessing district in which the land or real property affected thereby is situated, .before the 10th day of April of each year, a written statement, under oath, of all his estate situated in such township or assessing district, liable to assessment and taxation under the provisions of this act; otherwise, a written statement of the mortgagee’s interest in any such real estate may be filed with the supervisor by the mortgagor or owner of the fee.”
In other words, as to existing mortgages the only means the assessing officer has in ascertaining the value of the mortgage interest in each parcel, when situate in separate assessing districts, are these statements of the mortgagor or mortgagee. If they are both nonresidents, as the case often happens to be, and the mortgage is upon real property in different assessing districts, there is no way pointed out, except as above stated, to ascertain the facts; and, if the parties are not accessible, then no means is given to ascertain the facts. Let us suppose the case of a mortgage given by a resident of Detroit, or by an owner residing out of the State, upon lands in Oscoda and Eoscommon counties, in the Lower Peninsula, and Chippewa county, in the Upper Peninsula. The supervisors in Oscoda county or Eoscommon county enter the land for assessment upon their respective rolls, and then find it incumbered by a mortgage covering lands in the other two counties, and they attempt to apportion the mortgage upon the several parcels of land in all the counties according to their respective values. How can it be done? The land is assessed, “‘Owner unknown.” The mortgagee is a non-resident. Neither can be reached. Must a supervisor ascertain the
Again, in the matter of review under this statute. If the mortgagee does not appear before the board of review, he will be barred from contesting the amount of his tax in any court, as he will have had an opportunity to .appear before that body, and such an appearance or ■opportunity for an appearance would be regarded as his day in court upon the question of the amount of his assessment. Mortgagees must therefore be on the watch in every assessing district where their mortgages may be assessed, — and a mortgage may be assessed in every .assessing district where any of the land lies covered by it, — or suffer the consequences of an overassessment or •overvaluation by each assessing officer on the one mortgage. Take the case of the savings banks and insurance companies situated in Detroit, all of which are organized under the laws of this State. They own nearly $14,000,-000 of real-estate mortgages, held by them as security to depositors in banks and policy-holders in insurance companies. Many of these mortgages cover more than •one piece of land, and presumably lands which are situated in two or more taxing districts are covered by the same mortgage. These mortgages are upon lands in different parts of the State. The assessing officers not having the values at hand by which they can apportion the mortgage according to the value-of each parcel of land, each assessing officer may assess the mortgage in each district according to his own view as to the proportion which it bears to the whole land. Must the bank or insurance company, in order to prevent an overvaluation in each district* appear before the board of •.review, or in default thereof be held to the amount
Many other defects could be pointed out, and the imperfections of the law shown. These defects may not prove insurmountable barriers to a valid assessment, but I have cited them to show the difficulties of carrying the law into effect;
Upon the questions which have not been discussed by my Brother Grant or myself, I concur fully in the views of my Brother Montgomery.
I am of the opinion, however, that the writ of mandamus should be denied.
This is an application for the writ of mandamus to compel the respondents, who are the assessors of the city of Detroit, whose duty it is to assess at its true cash value all the real and personal property in the city, and to make out the assessment rolls, to comply with the provisions of Act No. 200, Laws of 1891, which require them—
1. To assess the value of any laud contract to the owner of such security as real estate.
2. To assess as real estate, to the owner thereof, the value of any real-estate mortgage executed before the tax law of 1891 went into effect.
3. To assess to any savings bank or insurance company,, as real estate, the value of any real-estate mortgage-owned by such bank or insurance company, executed since said tax law took effect.
4. To assess the value of any real-estate mortgage executed since said tax law took effect to the owner thereof, as real estate.
5. To assess the value of any real-estate mortgage-executed since said tax law took effect, and owned by a non-resident of this State, to such non-resident owner,, as real estate.
6. To deduct the value of all real-estate mortgages-owned by any savings bank or insurance company from the value of the capital stock of such bank or insurance
The respondents answered, alleging various reasons-against the constitutionality of the act.
The first question for determination is whether the-act approved by the Governor and deposited with the Secretary of State is the act which passed the Legislature. Courts will not go behind the legislative-journal for any evidence touching the validity of an act of the Legislature. ¥e must be able to determine-from an inspection of the journal that the act as signed did not pass, in order to declare it void. The history of this act, as found in the journal, is as follows:
Early in the session a joint special committee of the-Senate and House was appointed, to which were referred the recommendations of the retiring and incoming Governors on taxation, with instructions to prepare and report a general tax bill. Three general tax bills were introduced, — two in the House and one in the Senate,— and referred to this committee.. The House bills were numbered . 178 and 984, and the Senate bill, 325. April 17 this committee reported a substitute for House bill No.. 178, which was concurred in, ordered printed, and referred to the committee on judiciary. House Jour. 1246.
June 19, the judiciary committee reported to the House-House bill No. 178 (file No. 340), entitled' “A bill to provide for the assessment of property, and the levy of taxes thereon, and for the collection of taxes heretofore- and hereafter levied, and to repeal Act No. 195 of the-Session Laws of 1889, and all other acts in any wise contravening any of the provisions of the same;” reported a substitute therefor; recommended the substitute be concurred in and passed. This report was accepted, the-committee discharged, and the substitute ordered printed, and made the special order for the next Tuesday. House:
The bill was considered in committee of the whole •June 27, which reported that they had had under consideration substitute for House bill No. 178 (file No. 340), entitled A bill/” etc. (giving the same title as ■above); that they had not gone through therewith, and .asked leave to sit again, which was granted. Id. 2156. The same bill was further considered in the committee ■of the whole on the same day, and the committee asked leave to sit again. Id. 2157. The same bill was again considered in committee of the whole June 29, but its ■ consideration w«as not completed, and leave was granted to sit again. Id. 2163. The like proceedings were .repeated the same day upon this same bill. Id. 2164. At the evening session of the same day the bill was further considered in committee of the whole, when the same was reported back to the House with sundry amendments thereto, in which the House was asked to concur, and its passage recommended. The House concurred in the amendments, and the bill was placed on the order of third reading. Subsequently the vote by which they ■concurred in the amendments was reconsidered, and a •motion was made to concur in all the amendments, except .the amendments made to section 17 and section 12, which
Two resolutions were then passed by the House, — one declaring that it was desirable to incorporate into the tax laws of this State the California mortgage tax system, as provided in House bill No. 178 (file No. 340); the other declaring that it was desirable to incorporate-the county system for the collection of delinquent taxes, as provided for in the same bill. House Jour. 3167,. 3168. The bill was printed in the journal as directed, under the heading:
“Supplement to House Journal. File No. 340. House-of Bepresentatives. Substitute for Senate bill No. 178. (Introduced by Mr. Doremus.) Ordered printed for the use of the committee on judiciary. Lansing, June 39, 1891.”
It is conceded that the expression, “Substitute for Senate bill No. 178,” should read: “Substitute for House bill No. 178.” This was a clerical error, and corrects itself, since no tax bill by that number was pending in the Senate. A statement of this clerical error is-made in the index to the journal. The bound volumes of the journal are now produced, and this bill, which the House ordered printed in that day’s journal, is omitted therefrom.
July 1 it. appears from the journal that,—
“On motion of Mr. Doremus, House substitute bill No.*126 178 (file No, 340), entitled * * * was taken from fhe table and put upon its immediate passage.”
Several amendments were then made to the bill by the House, which appear in the hound volumes of the journal on pages 2199 to 2201, and on pages 1431 and 1432 •of the journal as issued daily. I do not consider it necessary to state them here. The bill was then passed and sent to the Senate, and on the same day the Senate ■returned the bill to the House, reporting that it had passed the bill with some amendments. These amendments were concurred in by the House, appear upon the journal, and are in the act as signed by the Governor.
July 1, while the bill was being considered by the House, and just before its passage, the journal contains the following:
"Mr. Doremus moved to further amend the bill as follows:
"1. By striking otit sections 109, 110, 111, 113, and 116.
" 2. By inserting in line 3 of section 114, after the word such/ the word ' blank/ and after the words •' forms of/ the words ' delinquent tax record, certificates, ■deeds, and other necessary papers/
"3. By inserting in line 5 of section 115, after the word 'accrued/ the words 'or may hereafter accrue/—
"Which motion prevailed. The question recurring to the passage of the bill, pending the taking of the vote •thereon, Mr. Doremus moved that there be a call of the House, which motion prevailed.”
After the roll of the House was called, the pending bill was laid on the table. Shortly after this, on the .same day, by unanimous consent, the bill was taken from the table and placed upon its immediate passage. Here, again, a clerical error was committed, by referring to the bill as "House substitute for Senate bill No. 178;” but it was also referred to as file No. 340, and the title given - identical with the one just before laid upon the
“Mr. Doremus stated that certain sections of the bill had been stricken out and some added in the committee of the whole, which, with the above amendments, would not leave the sections in consecutive order; and thereupon Mr. Doremus further moved to amend the bill by directing the engrossing and enrolling committee to renumber the sections of the bill so that they should be numbered, as near as may be, by consecutive numbers; which motion prevailed, and the sections of the bill were thereupon accordingly renumbered.”
It is apparent that the numbering of the sections might have been done by the committee on engrossment and enrollment without any instruction from the House, and without in any manner affecting the validity of the bill.
It must first be determined whether the bill ordered-
Courts will go behind the acts of the Legislature, published by authority, to the written act, as signed by the-Governor and found in the office of the Secretary of State, to ascertain what the law is. For the same reason, they will go behind the bound volumes of the journal, to the record made and approved by the Legislature, to ascertain what that journal is. The language of this-Court in Rode v. Phelps, 80 Mich. 609, speaking through my Brother Morse, applies with equal force to the facts of this case, viz.:
“If the rule prevailed here which is adopted in some-of the states of the Union, that the courts have no power to go behind the authentication of a law by the-presiding officers of the Legislature and the approval of*129 the Governor to ascertain whether or not it was legally passed, under the requirements of the Constitution, we should always be in danger of having laws upon our statute-books which, although the courts would be obliged to hold them valid under such a rule, were never passed by the Legislature, and were really created by the carelessness or corruption of some member, clerk, or employé of that body, or perhaps by the interpolation of a member of what is sometimes facetiously called the ‘Third House,' but which is nothing more nor less than an organized and generally unscrupulous lobby.''
Courts will take judicial notice of the methods of procedure in the Legislature. No written journal is kept by the House or Senate. The journal, as published and placed upon the desks of the members every morning, is the only record kept of its proceedings. By resolution of the House, the record of its proceedings, called the ‘‘ Journal,'' was sent daily to the various township, county, and State officials, including the Secretary of State and the members of this Court. For what purpose, other than to be received and acted upon as the official record of its proceedings, and the original record thereof?
Rule 8 of the House Rules is as follows:
“ Upon the announcement by the clerk that a quorum of the House is present, the journal of the preceding day shall be read, unless otherwise ordered by the House, a.nd any mistake therein corrected.”
It is provided by Rule 11 that,—
“After correcting the journal of the preceding day, the order of business shall be as follows,” etc.
In practice, under these rules, the record of each day's proceedings, as it appears in this journal, which is in the hands of every member, stands approved, unless a correction is suggested and made, which will then appear in the journal the next day.
Section 15 of Howell's Statutes provides for printing
“ That the secretary of the Senate and the clerk of the House of Representatives be and - they are hereby directed to compile and prepare for publication, make indexes, and superintend the publication of the journals,” etc.
What constitutes this “official journal” mentioned in the statute, and “the journals” mentioned in this resolution? Has there been no official journal before this time? Can there be none until one is compiled, indexed, and bound into volumes, which do not and cannot appear for months afterwards? Is there no official journal in existence, of which courts will take judicial cognizance? If a question arises as to the passage of a law enacted early in the session, and given immediate effect, to what “official journal” will the courts resort to determine it while the Legislature is in session? Ample opportunity is now offered to test such questions in the courts before the adjournment of the Legislature. The Constitution also requires each bouse to keep and publish a journal of its proceedings.
The decision in Attorney General v. Burch, 84 Mich. 408, went no further than to hold that the clerk, under a resolution directly "authorizing him, might make corrections before the Legislature adjourned. In the present case the clerk omitted this part of the journal from the copy he certified, not by any direction of the House nor to correct any error, but upon his own motion, and apparently because he did not consider it a part of the journal.
The liquor tax law of 1889 Was printed in the journal
But it is insisted that the words, “ ordered printed for ¡the use of the committee on judiciary,” appearing on the supplement, show that it was not published for the use of the House. The fallacy of this claim is apparent when it is considered that the committee on the judiciary had
It is also urged that this daily journal may be produced from a supervisor, or from any person to whom it was sent, and who has taken the pains to preserve it, and be received to contradict the bound volumes. This position might be tenable if the bound volume were the original record. But it is not. No one original is made or kept. Each number issued is an original. This journal; issued daily to its members and to the people of the State, purports to be made and published by author-ty, is in fact made and published by authority and bears upon its face its own authentication. It and the bound volumes are both published by authority, are open to the examination of the courts, and it is of no consequence whether they are found in public or private libraries, in public or private offices, in the possession of members of this Court or of private individuals. When produced, each authenticates itself. The Legislature has provided that both shall be sent to the members of this Court. When so sent and received, by which are they to be governed? We are not pointed to, nor can I find, any statute which makes this bound volume conclusive evidence of the proceedings of the Legislature. It follows in the present case that this journal, as issued daily, preserved by the Secretary of State, and produced to this Court, is one of the original, official journals of the House, and to it we must look to determine what action the House took, and what it did not take, upon the act in question.
The following cases are cited in support of the position
In McCulloch v. State, evidence was offered to show that two members who were shown by the record as having voted for the bill were not present and did not vote for it, and that another member, who was recorded as having voted for it, in fact voted against it. It was with reference to this state of facts that the language .in that opinion was used. No dispute arose as to what was in fact the journal. It,is' there said:
“ The house keeping the journal is the only tribunal by which it can be corrected, and, until corrected by such authority, it must be considered conclusive as to the facts which it contains.''’
Applying this language to the present case, and where is found any correction of the journal by the only tribunal which can correct it?
In Turley v Logan Co., a correction was made at a subsequent session by the legislature itself, and in the decision is this language:
“We cannot doubt the power of the same legislature, at the same or a subsequent session, to correct its own journals by amendments which show the true facts as they actually occurred, when they are satisfied that hy neglect or design the truth has teen omitted or suppressed (The italics are my own.)
So far as this language is applicable to the present case, it is clear that the Legislature alone can make the correction, and that it must appear on, the journal as made by its authority.
In Post v. Supervisors the law was held void because the journals did not show it to have been enacted in
“If the journals, being produced or proved, fail to-show that an act has been passed in the mode prescribed by the constitution, the presumption of its validity, arising from the signatures of the presiding, officers and of the executive, is overthrown, and the act is void.”
Under the statute of Illinois,—
“The copies of the original daily journals kept by the clerks of the two houses, made by persons contracted' with or employed for the purpose, as authorized and' directed by that act, * * * in well-bound books-furnished by the secretary of state, pursuant to the-duty thereby imposed upon him, and afterwards deposited' and kept in his office, are official records in his custody,, copies of which, certified by him, are admissible, upon settled rules of evidence; * * * and neither the competency nor the effect of such copies is impaired by the loss or destruction of the daily journals or minutes,”
It is further said:
“The copies of the journals, certified by the. secretary of state, and the printed journals, published in obedience to law, are both competent evidence of the proceedings in the legislature.”
If in that case the daily “journals” or “minutes” had been “produced” or “proved,” and they had differed from the bound books, by which would the court have been guided? See same case, reported in 94 U. S. 260.
In Attorney General v. Rice, Mr. Justice Morse, speaking for the Court, referred to these “journals kept by the clerk of each house, and read and corrected each day by each body, and duly certified by the proper officers to be correct.” If the bound volumes differ from these journals, “kept, read, and corrected, each day,” which should govern? The offer in that case was to contradict the journal, which showed that a certain bill was.
I cite also, in this connection, Miller v. Goodwin, 70 Ill. 659. In that case the statute of Illinois required the secretary of state to record in a bound volume prepared and kept in his office for that purpose the daily proceedings of the legislature. The proper officers of the respective houses kept the minutes of their proceedings upon blanks furnished to them. These were daily sent to the secretary of state, recorded in this book, which was called the “Journal Record," and, after they were so transcribed, he sent them to the public printer, and they were never returned. Objection was made‘that the journal record was not the original record, and parol proof was offered of the proceedings of the legislature to contradict this record. This was held incompetent. In that case this record was made by law the official record. In the present case, as already stated, the journal published daily is the official record. The court in that case said:
“Public information of the proceedings is required to be furnished by publication; and, if this record is not designed to be a permanent depository of the evidence of the proceedings required to be copied into it, then we must presume that the law requires the making and preservation of a public record with no end in view."
The nest question for determination is whether the statement and motion appearing in the bound volume, and above given in full, are a part of the official journal of the House. As already stated, they do not appear in the journal of July 1, as it was published at that time. The Legislature continued in session July 2 and 3, and neither in the journals of those days, as they were then published, nor as they appear in the bound volume, is there found any correction of the journal of July 1, nor any reference whatever to any such state
The conclusion that no such proceedings took place nan safely rest upon the records as above given. But they are not the only evidence within our reach. Whatever of credit is to be given to these bound volumes is not derived from the fact that they are bound, but from the certificate of the clerk, attached thereto, that it is a correct journal of the proceedings, and the fact that they are published by the Legislature as its official journal. That is what gives it its official character contemplated in the statute and resolution above referred to, and determines its prima facie authenticity and correctness. Courts, in their search for the truth as to what the proceedings actually were, will examine an unbound as well as a bound copy. The compilation and publica
* Of the right of this Court to examine this copy, there is no doubt. When the case of Auditor General v. Board of Supervisors of Menominee Co., 89 Mich. 552, was heard, October 29 and 30, 1891, this Court was referred to the unbound numbers of the Senate Journal, certified to by the secretary of the Senate, for the official record of the Senate on the act then in question, and they were accepted without objection as an official record of the proceedings of that body. If,- when bound, that record should be found to differ from the record then before the Court, by which should it be governed, in the absence -of any evidence upon the journal of a correction by the Senate?
It is established beyond controversy that the ■ bill, as
It is said by counsel for relator, in his brief:
“Every affirmative amendment proposed [referring to the amendments found in the journal] is found in the act as now enrolled.”
When a bill by order of the House is printed in its-journal, as the bill then pending, is shown by the same-journal never to have been referred to any committee, but to have received certain amendments, which appear in full upon the journals and then, as thus amended, to have passed both branches of the Legislature, such bill, as thus amended, is the one that has become enacted into law, and having received the solemn sanction of the Legislature. If the bill, when engrossed and enrolled, and signed by the Governor, contains other provisions, it is null and void, and must be set aside. This I believe to be the rule founded upon authority and reason. See
“ Every contract hereafter made, by which a debtor ■ obligates himself to pay any tax assessed on the interest •of the holder of any mortgage, deed of trust, or other lien, shall, to the extent of such obligation, be null and ■void.”
This provision does not appear in the bill signed by ■the Governor, nor in the act as published in the Public .Acts. The House Journal does not show even an attempt to strike it out. The only record to be found anywhere :in regard to it is on the printed copy of the bill, with riders attached, found in the office of the Secretary of State, and which is claimed to be the bill as passed, and from which the engrossed copy was made; and there, opposite this clause, is found the following pencil memorandum: “ Richardson says this was struck out.” But I do not consider this as competent evidence. It is to the journal that we must look. By the absence of this provision from the law, it is shorn of all its force and effect, so far as taxing mortgages is concerned; for it is now conceded by counsel for the relator that under the
It is of no avail to say that certain sections of the-bill printed in the journal are not contained in the law, nor that the law contains certain sections which do not appear in the printed bill. This may seem strange, as-was said in Attorney General v. Joy, infra, but this-furnishes no basis for courts to infer that amendments were made which the journal does not show. The journal must control. In Attorney General v. Joy, 55 Mich. 94, the bill under consideration required the vote of two-thirds of the members to secure its passage. The journal showed one vote short of this number, but the bill was declared carried by the requisite majority, and the parties interested acted upon that assumption. It was urged that there was evidently a mistake in the journal, but the-Court said, speaking through Chief Justice Cooley:
"There was a considerable vote in opposition to the act in question, and, if the vote in its favor was insufficient, it seems strange that attention was not challenged to the fact immediately; * * * and it seems-incredible that, if a mistake was made in declaring a bill passed which had not received the necessary vote, the mistake should not have been discovered as early as the day following. * * * But we cannot now judicially determine that there was any such mistake. The legislative journals furnish no proof of it, and it remains merely a plausible conjecture.”
The act in question should be held void, and the writ.
I concur in the conclusion reached by my Brother Long, that the law is unconstitutional.