32 Miss. 650 | Miss. | 1856
Lead Opinion
delivered the opinion of the court.
This case presents for our determination tbe important question, whether the bill passed by the legislature of this State, at the January session, 1854, abrogating the 16th section of the 4th article of the Constitution, which established the Superior Court of Chancery, and transferring full and complete equity jurisdiction to the judges of the Circuit Courts, was passed in conformity to the provisions of the Constitution.
It is not denied that this bill was, after its passage, duly and properly published, and submitted to the action of the people at the general election in November, 1855; and that it then received the approval of a majority of the people; and that the action of the legislature of 1856, incorporating it in the Constitution, was in due form. But it is contended, nevertheless, that the act is not a valid part of the Constitution, because the original bill, in one of its readings in the senate, did not receive the votes of two-thirds of all the members composing that body, in its favor — the whole number of senators being thirty-two, and only twenty-one members voting for it on that reading.
It appears, by an inspection of the original enrolled bill in the office of the secretary of state, that it was signed by the president of the senate, and the speaker of the house of representatives, and by the governor, in due form, as a bill duly passed by both houses and approved by the governor.
In the consideration of the case, two questions arise:—
1st. Whether the Constitution requires that a bill proposing an alteration or amendment to the Constitution, to be submitted to the action of the people for their sanction or rejection, shall be passed by a majority of two-thirds of all the members constituting each house, or whether it is sufficient that it be passed by a majority of two-thirds of a quorum of each house.
2nd. Whether, after the bill has been signed by the speaker and president of the respective houses, as having regularly passed, and after it has received the approval of the governor, and been filed in the office of the secretary of state, it is competent for this court, ex officio, to take notice of the journals of proceedings of the two houses, and thereby to inquire and determine whether or not the
These questions have been discussed with great learning and ability by the counsel for the respective parties; and I have given to them that careful and mature consideration which their grave importance demands, and will now proceed to state briefly my conclusions, and the reasons which have led me to them.
The article in the Constitution providing for alterations or amendments of that instrument, and under which the bill involved in this case was passed, is in the following words :—
“ Whenever two-thirds of each branch of the legislature shall deem any change, alteration or amendment, necessary to this Constitution, such proposed change, alteration or amendment, shall be read and passed by a majority of two-thirds of each house respectively, on each day, for three several days; public notice thereof shall then be given by the secretary of state, at least six months preceding the next general election, at which the qualified electors shall vote directly for or against such change, alteration or amendment; and if it shall appear that a majority of the qualified electors voting for members of the legislature, shall have voted for the proposed change, alteration or amendment, then it shall be inserted by the next succeeding legislature, as a part of this Constitution, and not otherwise.”
The solution of the first question, above stated, depends upon the construction to be given to the words “ branch of the legislature,” and “each house,” in this article of the Constitution; and we have to ascertain the sense in which these words were intended to be used by the framers of the instrument.
The true sense in which words are used in a statute, is to be ascertained generally by taking them in their ordinary and popular signification, or, if they be terms of art, in their technical signification. But it is also a cardinal rule of exposition, that the intention is to be deduced from the whole and every part of the statute, taken and compared together — from the words and the context— and such a construction adopted as will best effectuate the intention of the law-giver. One part is referred to in order to-help the construction of another, and the intent of the legislature is not to be collected from any particular expression, but from a general
It follows, from these principles, that the statute itself furnishes the best means of its own exposition, and if the sense in which words were intended to be used can be clearly ascertained from all its parts and provisions, the intention thus indicated shall prevail without resorting to other means of aiding in the construction. And these familiar rules of construction apply with at least as much force to the construction of written constitutions, as to statutes; the former being presumed to be framed with much greater care and consideration than the latter.
Let us, then, inquire whether the various provisions of our Constitution do not show the sense in which the words in question were intended to be used.
By article 3, section 4, “ The legislative power of the State is vested in two distinct branches, the one to be styled ‘ the senate,’ the other ‘ the house of representatives,’ and both together, c the legislature of the State of Mississippi.’ ”
These two u branches” of the legislature are afterwards called “ houses” in sections 15,16,17,18, 20,21, 23, of the same article; and in article 5, sections 15 and 16 ; and again, in article 7, section 8, they are termed “branches.” It is manifest from these provisions, that the terms, “ branch” and “ house” are used indiscriminately to mean the same thing, — one division of the legislature.
The 15th section of article 3, provides, that “a majority of each house shall constitute a quorum to do business,” and that “ each house shall judge of the qualifications and elections of its own members.” “ Mach house may determine the rules of its own
From these and other provisions, it is evident that the term house means one branch of the legislature as contradistinguished from the other branch, and that a majority of the entire members composing the body constitute, in legal contemplation, the house or branch of the legislature; and under the rules of parliamentary law, which, by the silence of the Constitution, must be considered as the rule of action of the body so constituted, a majority of the quorum are competent to do any legislative act which that house could do, unless the particular act be required to be done by a greater number than a majority, by some specific provision of the Constitution. Thus, a quorum is competent to judge of the qualifications and elections of its own members; to elect a speaker or president; to determine its rules of proceeding, and to do legislative acts generally, except in cases where that power is specially negatived, because these powers are given to the “ house,” and a majority of the whole members constitute the “ house.”
Several limitations are made upon this power of a mere majority of the quorum to do particular acts. Thus, “ each house may punish members for disorderly behavior, and with the consent of twó-thirds, expel a member;” article 3, section 16. It is plain, that the “house” intended by this provision is the quorum mentioned in the section immediately preceding; but instead of leaving the power of expulsion to the parliamentary rule of a majority of the “house,” that is, of the quorum competent to perform general legislative functions, it required the consent of two-thirds of such house to perform the act. So, in article 4, section 27, it is provided that judges may be removed from office' by the governor, on the address of “two-thirds of both homes of the legislature.” And by article 7, section 8, in order to appropriate
The propriety of this construction is made more manifest by comparison of the above provisions with others. For instance, it is clear that the provision of article 4, section 27, that judges should be removed upon the address of “ two-thirds of both houses of the legislature” intended such “house” as was competent to perform general legislative acts, because, in the subsequent article 6, section 2, it is provided that any civil officer may be convicted on impeachment by the senate, “ with the concurrence of two-thirds of the members present.” Considering the fact that the consequences of impeachment fixed by the Constitution are much more severe than those of mere removal from office, it is not to be supposed that the Constitution intended that two7thirds of the members of the senate present should have power to do the more highly penal act of convicting on an impeachment, but that it should require two-thirds of the entire members composing the body to concur in an address to remove a judge from office.
Again, article 7, section 8, provides that no money shall be appropriated to objects of internal improvements, “ unless a bill for that purpose be approved by two-thirds of both branches of the legislature.” The section immediately following this provides, that “ no law shall ever be passed to raise a loan of money upon the credit of the State, or to pledge the faith of the State for the payment or redemption of any loan or debt, unless such law be proposed in the senate or house of representatives, and be agreed to by a majority of the members of each house, and entered on their journals, with the yeas and nays taken thereon, and be referred to the next succeeding legislature, and published,” &c. Considering the difference between the phraseology used in this section, and that used in the section immediately preceding it, and in all the other parts of the Constitution, it appears that the mode of legislative action authorized in other proceedings, was intended not to apply to acts embraced in the restrictions of this section. In other parts, the language is, the “house,” or “branch of the legislature“a majority of the house” or “branch two-thirds of the “ house,” or of the “ branch;” but in this, it is “a majority of the members of each house.” This difference is significant, and
It appears to me, therefore, to be clear, that when the term “ house,” or “ branch” of the legislature is used in the Constitution, without further words defining the sense in which it is used, such an organized legislative body was intended as was competent to do acts of legislation generally, and that such is the general sense in which these words are employed in the Constitution. If the act be such as may be done by the “ house” or “ branch,” such house being constituted by a quorum of its members, the act may be done by a majority of such quorum. If it require two-thirds or four-fifths of the house or branch, it may be done by two-thirds or four-fifths of the quorum. Consequently, I am of opinion, that the words, “two-thirds of each branch of the legislature,” and “ two-thirds of each house,” in the article of the Constitution under consideration, should be taken in the general sense in which the words “ house” and “ branch” are used in that instrument, and that two-thirds of a duly constituted quorum of each house were competent to do the act provided for in that section.
This conclusion has been sanctioned and sustained by the recent action of the senate of the United States, in reconsidering certain bills passed by congress for internal improvement, and to which the President of the United States had interposed his veto. When these bills came up for reconsideration, upon the objections of the President to their becoming laws, the question arose, whether a bill could be passed over the veto of the President by two-thirds of the members present of each house, or whether two-thirds of the whole number of members composing the body were requisite. After full debate, in which many of the ablest jurists of the senate participated, it was decided by an almost unanimous vote of that body, that it was only necessary in such case, that the bill should be voted for by two-thirds of the members present, there being a quorum, in order to make it a law. And it was stated by learned
The authority of the senate of the United States upon the construction of words in the Federal Constitution, identical with those employed in our Constitution, composed as that body is, for the most part, of very learned lawyers, is certainly entitled to great consideration and respect. And especially when we consider that the amendments to the Federal Constitution referred to were passed by the votes of two-thirds of the members present only, many of whom were members of the convention which framed the Constitution, then but recently formed, it tends strongly to show the true construction, intended by the framers of the Constitution, to be given to the words “two-thirds of the .house,” and has an important bearing upon the same words in our Constitution, which were doubtless taken from that precedent. If the question were merely doubtful from the words and context of our Constitution, such an authority and such a precedent might be safely followed.
It has been urged by the counsel for the appellant, that it could not have been intended that an act of so much importance and solemnity, as one for the change of the organic law of the State, should be passed lightly, and by less than a majority of all the members composing each branch of the legislature.
This objection would have more force, if the act of itself operated as an alteration of the Constitution. But it is merely a proposition to be submitted to the action of the people. It is a means provided, by which the people may exercise their sovereign right of declaring whether they will change their Constitution or not, thereby establishing the mode in which the government shall be changed, instead of leaving it to unregulated popular impulse. The proposition is presumed to emanate from the people, through their repre
It may, therefore, be well concluded, that the framers of the Constitution were actuated by these considerations, and thought fit to render the exercise of this high sovereign right as free and untrammelled as possible, believing that, if it was exercised in a regular and established mode, it would never be abused by the people to whom it was reserved.
2. The next question for consideration is, whether it is competent for this court to look behind the enrolled bill on file in the office of the secretary of state, and ex officio, to take notice of the journals of the legislature, and thereby to determine whether the bill was passed by the number of votes recognized by the Constitution.
By article 8, section 28, “Every bill, having passed both houses, shall be signed by the speaker and president of their respective houses;” and by article 5, section 15, “Every such bill shall be presented to the governor, and if he approve of it he shall sign it.” The Act of March 1st, 1833, which was passed immediately after the adoption of the Constitution, requires that the original rolls of bills and acts of the legislature shall be filed and kept in the office of the secretary of state. Hutch. Code, 386, § 3.
When an act of the legislature has passed through these forms, which are shown upon its face to have been complied with, and is
Let us see what is the character and legal effect of such acts in England, and observe bow nearly tbe mode of preserving and perpetuating them there resembles tbe mode which we have adopted.
“ After tbe royal assent is given to a bill, tbe clerk of tbe parliament transcribes tbe act into a roll,” and “public acts, after enrollment, are delivered into chancery, and this is the original record.” 5 Comyn, Dig. Parliament, Gr. 22.
“ Records are tbe memorials of tbe proceedings, of tbe legislature and of tbe king’s courts of justice, preserved in rolls of parchment, and they are considered of such authority that no evidence is allowed to contradict.” 1 Phill. Ev. 316, 4th Amer. edition. “ Acts of tbe legislature are records written on tbe rolls of parliament, and are of tbe highest and most absolute proof.” 1 Stark. Ev. 281, 7th Am. edition.
A public statute requires no proof, and when it is necessary to refer to one a copy is not given in evidence, but merely referred to, as it were, to refresh tbe memory. 1 Stark. Ev. 231, 7th Am. edition.
In this country tbe courts take judicial notice of our Constitutions, as tbe fundamental law, and of public acts of the legislature, upon tbe same principle as in England. Greenl. Ev. § 479.
Tbe record of a public act of tbe legislature of this State is tbe enrolled bill, clothed with tbe solemnities required by tbe Constitution, and filed in tbe office of tbe secretary of-state. Tbe signatures of the presiding officers of tbe two bouses, and of tbe governor, are required in attestation that tbe bill was passed in due form. This implies tbe power to determine whether the Act bas been passed in conformity to tbe requisites of the Constitution, and a memorial of it is required to be made, in order that it may stand as a record of tbe authenticity and validity of tbe Act. No other record of the Act is required to be kept, and of necessity it must have been intended that the Act so sanctioned and required to be preserved, shall constitute a record, with the incidents appertaining to such a record at common law, importing absolute verity
The record, consisting of the act signed by the presiding officers of the two houses of the legislature, and by the governor, and filed among the archives of the State, is the entire record by which the genuineness or validity of the act is to be ascertained; and the facts implied by such a record could no more be contradicted, than could it be shown that a judgment of this court, which appeared by the record to be rendered by the whole court, was, in truth, rendered by but one member of the court, or that a formal judgment of an inferior court was rendered without evidence.
But if it was competent to show by extrinsic evidence that an act, verified and attested and enrolled according to the forms of the Constitution, had not been passed as it appeared by the record to have been passed, yet this court cannot take judicial notice of the journals of the legislature in order to ascertain the true state of facts.
In, England, the journals of the lords and commons, which are kept as memorials of their proceedings, may be proved by an examined copy; but the courts do not judicially notice them, and they do not import absolute verity, and are not conclusive of the facts stated in them, except in the case of a judgment rendered by the house of lords, as a judicial tribunal, upon appeal. 1 Phill. Ev. 406. In this country the same rule prevails, and such documents are not noticed judicially by the courts, but must be proved. 1 Greenl. Ev. § 481, 482.
In this State, there is no law making the journals of the two houses of the legislature evidence for any purpose, and upon no
An exception to this rule is probably to be found in the 15th section of article 5, which provides for the passage, upon reconsideration by the two houses, of bills which shall, not receive the approval of the governor, requiring that, upon such reconsideration, such bill may become a law upon its receiving the votes of two-thirds of each house in its favor. But in such case, the provision is imperative, that the names of the members voting for and against the bill shall be entered on the journals of each house respectively. This is not required to be done in other cases; and therefore it may be fairly concluded, that the framers of the Constitution intended to make this 'an exception to the general rule which they must be presumed to have known, by which the journals could not be judicially noticed. And, as no other provision is
The object of the requirement in the Constitution that each house should keep and publish a journal of its proceedings, is doubtless the same as that of the Federal Constitution, which is stated by judge Story to be “to ensure publicity to the proceedings of the'legislature, and a correspondent responsibility of the members to their respective constituents. The public mind is enlightened by an attentive examination of public measures; patriotism and integrity and wisdom obtain their due reward, arid votes are ascertained not by vague conjecture but by positive facts.” 2 Story, Comm, on Const. § 888.
In opposition to the view which I take of this subject, the case of The State v. M'Bride, 4 Missouri, R. 303, is relied upon. It appears to me that the reasoning of that case is loose and unsatisfactory, and is irreconcilable with the fundamental principles of the law of evidence, which are, for the most part, unchanged by the written constitutions of this country. That a court determining upon the constitutionality of an act of the legislature, is bound to support the Constitution, and to decide the question by that test, can furnish no valid reason why the court should take notice of that which is not legal evidence before it, and go into an investigation of matters in pais, inspect journals, and settle their authenticity and accuracy, examine witnesses, and hear evidence generally to ascertain whether some form required by the Constitution had not been omitted, or some rule violated in the passage of the Act. Yet such would appear to be the doctrine which the case in Missouri tends to establish.
Several cases from New York, are also relied upon in support of the position that it is competent to inspect the journals in order to ascertain whether the bill was properly passed. The most important of these is that of The People v. Purdy, 2 Hill, 34, and the same case on appeal in 4 lb. 394. In that case, the legislative act under consideration was of that character which was required, by the Con
In the same way, and upon the same principle, it cannot be doubted but that it would be' competent for this court to examine an original enrolled bill, in the office of the secretary of state, to see whether it has the signature of the presiding officer of each house, and of the governor, or whether it was correctly copied in the published volume of the acts of the legislature; because these •filings are pre-requisites to the validity of the act, which must appear by the act itself, and the original bill, as it passed the legislature, and is enrolled in the secretary’s office as a record of the act, is the best evidence of its authenticity and true character. But there is a great difference between looking behind the printed statute book to the enrolled Act, and looking behind the enrolled Act to the journals.
It has been urged that it is the duty of the judiciary, in passing upon the constitutionality of acts of the legislature, to preserve with strictness the limitations and safeguards provided in the Constitution against the undue exercise of power by the stronger de
The courts of justice of the State have no more power to transcend their jurisdiction, than has the legislative department of the government; no more power to determine the rights of a party to a suit oyer whom they have not jurisdiction, than has the legislature the power to pass an act without a compliance with the forms required by the Constitution. The powers of both department are subject to the limitations and restrictions imposed by the Constitution. Yet it is perfectly well settled, that if the record of a court shows that the court had jurisdiction over the party, and the subject-matter of the suit be within its jurisdiction, the judgment is conclusive, and incapable of contradiction by proof that the court never, in truth, had jurisdiction over the party. The reason of this is, that, to permit the record to be contradicted, would be to promote litigation, and destroy confidence in the solemn judgments of courts of justice; and that it is better that particular acts of injustice should be borne, than that the administration of
It appears to me, therefore, that when the record of an act of the legislature has the sanctions which the' Constitution has provided in order to its validity, the same presumptions of law as to the compliance with incidental forms, and the same reasons of public policy in its favor, which give sanctity to the statements of the record of a judgment of a court, demand that it should be held to have been enacted, as the officers charged with the duty have attested that.it was enacted, in conformity to the provisions of the Constitution.
I am therefore of opinion, that the original bill under consideration must be taken as having been duly passed by both branches of the legislature according to the forms of the Constitution, and that the amendment abolishing the Superior Court of Chancery, is
Dissenting Opinion
delivered the following dissenting opinion.
The questions presented by this case are:—
1st. Whether it is requisite to the validity of a bill, proposing “an alteration, change or an amendment” of the Constitution, that it should be passed by a majority of two-thirds of all the members of each branch of the legislature; or whether it is sufficient if the bill be passed by a vote of two-thirds of a majority, or of a quorum of each house?
2nd. Whether it is competent for this court, after the bill is passed, signed by the speaker and president of the respective houses, and has received the executive sanction, and been filed in the office of the secretary of state, to inquire into the regularity of its passage; and in so doing to notice the legislative journals for the purpose of ascertaining whether the bill has or has not been passed by the required majority ?
Under any conditions, and at all times, these are very serious questions. Under the circumstances in which they are now presented, their gravity and importance are greatly enhanced.
The legislature, at its biennial session in 1854, passed an Act for an amendment of the Constitution, by which it was proposed to abolish the Superior Court of Chancery, and to vest full equity jurisdiction in the circuit courts. The Act was published and submitted to the people, at the general election in 1855; and having been voted for by a majority of the electors, was, in due form, inserted by the legislature of 1856, in the Constitution, as a part of that instrument. The Act, thus incorporated, has been recognized and acted under by all the officers and departments of the government, as a part of the fundamental law of the land. Hence, if the Act itself be void, and the consequent action of the people and the legislature under it be held nugatory, considerable injury will be sustained by many citizens, and embarrassment ensue to the State at large.
Under these circumstances the argumentum ab injuria, forcibly presses itself upon our consideration. . But in the examination of
The people, in their aggregate or sovereign capacity, in distinct and express terms, have prescribed the manner in which the Constitution may be altered or amended. They have declared, in effect, therefore, that the Constitution shall not be amended in any. other mode; for the express and explicit directions as to the manner in which it shall be altered or amended, necessarily, excludes every other method. Hence, the only authentic mode in which'the sovereign will of the people can be evoked and ascertained in reference to a projected alteration of the organic law, is by a law enacted in conformity with the directions of the Constitution.
In laying down this proposition, I am, however, not to be understood as meaning that the State, or the people constituting the State, have not at all times and under all circumstances, in the plenitude of their sovereignty, the right to alter or abolish, at will, the existing Constitution and government, and' to ordain, in their stead, another Constitution or form of government better calculated to promote their interests; but that, while we affect to act under the Constitution, as it now exists, there is but one way in which the sovereign will of the people can be expressed or ascertained upon a proposed amendment to the Constitution.
If the sovereign will of the people has been evoked and ascertained in the prescribed and authentic mode, there is an end of the question. But until that is done,' we are judicially incapable of knowing that any alteration whatever of the Constitution is desired by the people of the State. The alleged facts, therefore, that the proposed amendment received the popular sanction, and that it is a cherished object with the people, ought to have no influence whatever in determining the questions under consideration.
As the supreme judicial tribunal of the State, this court is vested
Thus understanding my duties to the public, I shall proceed, as briefly as possible, to state my conclusions, and the reasons for •them, in relation to the questions under consideration.
The Constitution provides that “whenever two-thirds of each branch of the legislature shall deem any change, alteration or amendment necessary to this Constitution, such proposed change, alteration or amendment shall be read and passed by a majority of two-thirds of each house respectively, on each day, for three several days; public notice thereof shall then be given by the secretary of state, at least six months preceding the next general election, at which the qualified electors shall vote directly for or against such change, alteration or amendment; and if it shall appear that a majority of the qualified electors, voting for members of the legislature, shall have voted for the proposed change, alteration or amendment, then it shall be inserted by the next succeeding legis-luture, as a part of this Constitution, and not otherwise.”
The legislature, in the passage of the Act proposing the amendment to the Constitution, proceeded under these provisions of that instrument. It is manifest, therefore, that the question first above stated, must be determined exclusively by the meaning attached by the authors of the Constitution to the words “each branch of the legislature,” and “each house,” employed in the first clause of the article above quoted.
The rules which prevail in the interpretation of statutes, apply generally to the construction of written Constitutions. The object in all cases, is, to ascertain the true meaning or intention of the law; and whenever that intention can be indubitably ascertained, courts are bound to give it effect. Hence, in the exposition of a Constitution, the leading clue to the construction to be made, is the intention of those by whom it was ordained. And to discover that intention, those rules and maxims which have been suggested and sustained by reason and experience, should be employed.
A primary rule of construction is, that the intention of the
Another rule of construction, peculiarly applicable to instruments by which governments are created, and the fundamental laws of States are laid down, is, that one provision must be construed with reference, or in connexion with the others, so that full, complete, and harmonious action maybe given to all of them. We are not to look only at the language of any particular clause, but the intention of the framers is to be deduced from the whole and every part, taken and compared together.
When words or phrases are used in one part, in a plain and manifest sense, they are to receive the same interpretation when used in every other part, unless it manifestly appears from the context, or otherwise, that a different meaning was intended to be applied to them.
And it is laid down, in reference to the construction of statutes, that “ where the legislature has used words of a plain and definite import, it would be very dangerous to put upon them a construction, which would amount to holding that the legislature did not mean what it had expressed. The fittest course, in all cases where the intention of the legislature is brought in question is, to adhere to the words of the statute, construing them according to their nature and import, in the order in which they stand-in the act.” Dwarr. on Stat. (8 L. Lib.) 703.
A judicious application of these rules cannot fail to conduct us to a satisfactory conclusion.
The words above quoted, the construction of which, is the subject of examination, occur in several articles, and numerous sections of the Constitution. The words “ branch” and “house,” as words having a fixed, definite, and constitutional meaning, are used first in section 4 of article 3, under the head of “ Legislative Department.” This section declares, that “ the legislative power of the State shall be vested in two distinct branches; the one to be styled the senate, the other the house of representatives; and both together, the legislature of the State of Mississippi.”
It seems difficult to imagine how any misconception or difference of opinion, as to the true import of these terms, as used in this section, could have arisen. “Branch,” or “house of representatives,” “branch,” or “ senate,” designate a component member of the legislative body; and, manifestly, mean not a part of the representatives or senators, but the whole of the constituent members of the respective houses or branches of the legislature. The grant of legislative power is not made to the persons individually, who compose either house or branch, but to the branch or house, as a collective body. The Constitution and the law, made pursuant to it, ascertain and fix the number of members of each house. Indubitably, therefore, the true and only meaning, in this section, of the terms “branch,” “house,” and “senate,” isa component member of the legislative body, constituted of the persons who are duly elected as members of the same.
If any doubt could exist, as to the import of the term “house,” as it is used in this article and section, a reference to the 15th section of the same article cannot fail to remove all uncertainty. In that section it is declared, that “ a majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to-day,” &c. The word “house,” is, indubitably, used here in. the same sense in which it is employed in the 4th section. It would be vain to argue, that the word “house,” in this connection, does not mean the whole of the members, unless it can be proved that a majority is a smaller number than one-half.
We have thus ascertained the true meaning and import of the terms “branch” and “house,” where they are first used in the Constitution. Wherever they are subsequently used, according to one of the' rules of construction above laid dawn, they should receive the same interpretation, unless from the context, the subject-matter, or the object of the convention who framed the Constitution, it is manifest that a different signification was attached to them.
A reference to these terms, as they occur in the different dm-
Thus, in the 18th section of the same article, where it is provided, that “ when vacancies happen in either house,” the governor is authorized to issue writs of election, &c., it is evident that the word “house” is used to designate a component member of the legislative body, constituted of all the members elect, and not to mean a quorum or majority. For it would be absurd to hold that there could be a “ vacancy” in the quorum or majority of either house.
So, in article 4, section 27, under the head of “ Judicial Department,” the word “houses,” has precisely the same signification.
Under the provisions of this section, the “ two houses of the legislature,” acting as a joint body, constitute an extraordinary tribunal, vested with authority in no wise pertaining to them in their capacity as the law-making department of the government, but purely of a judicial character. The terms “quorum,” or “ majority,” used in reference to the two houses, when alluded to in their legislative capacity, has no application to the subject here treated of. This is manifest from the following considerations. First. The term “quorum,” as applied to a joint meeting of the two houses, is not recognized in the Constitution, and is unknown in parliamentary law. Second. In voting an address for the removal of a judicial officer, the concurrence of even a majority of a quorum is not contemplated 'by the Constitution. “ The address (is) to be by joint vote of both houses;” and “two-thirds of both houses of the legislature” must concur, before it can be passed. Hence, as the legislature is now organized, the house of representatives consisting of ninety-nine members, and the senate of thirty-two, it is evident that an address for the removal of a judge may be carried against the vote of every member of the senate. It is, therefore, not to be doubted, that the words “ two-thirds of both houses of the legislature,” import two-thirds of all the members of each house, and not two-thirds of a quorum of each house.
There is nothing in tbe context, or in tbe subject-matter of this section, from which it can be collected that a different or qualified meaning was applied to this term. Tbe inference is, therefore, conclusive, that it was used here in the same sense in which it was employed in tbe two preceding articles of tbe Constitution. But, in addition, there are other considerations which demonstrate that the word “house” in this article and section, was designed to indicate, not a majority or quorum, but the whole of the members elect of either house of the legislature.
Generally, the executive sanction is essential to all the enactments of the legislature; but in this section it is laid down, that “ every bill which shall have passed both houses of the legislature, shall be presented to the governor; if he approve, he shall sign it; but if not, he shall return it with his objections, to the house in which it shall have originated, which shall enter the objections at large upon their journals, and proceed to consider it; if, after such reconsideration, two-thirds of the house shall agree to pass the bill, it shall be sent with the objections to the other house, by which it shall likewise be reconsidered; if approved by two-thirds of that house, it shall become a law,” &c.
In the estimation of the Constitution the houses are always full, and all the members elect present whenever the legislature is in session. Hence, in theory, a law, in ordinary cases, is the expressed will of the legislative department, declared by, at least, a majority of each house, to which the executive approval has been given. The power granted to the two houses in this section is an extraordinary power, not embraced in the general range of their legislative authority. It contemplates the enactment of a law, not with the concurrence of the executive department, as required in ordinary cases, but against the veto of the governor. Now, if the term “ house” in this section means a quorum, or simple majority of the members of either branch of the legislature, and not the whole of the members of the respective houses, a bill, which could only become a law, according to the theory of the Constitution, by, the vote of a majority of each house, with the executive sanction, might be made a law against ’the assent of the governor, by the
And again, in article 7, sections 8, 9, under the head of “ General Provisions,” the words “branch” and “house” evidently import the whole body, as organized by the Constitution and the law,- and not a quorum, or majority of the members.
Thus, in every division or department of the Constitution the same meaning is attached to the terms “branch” and.“house.” And it may be safely affirmed, that in every instance where legislation of more than ordinary importance is contemplated, and that in all cases where it was deemed necessary to guard the interests of the public, by requiring a concurrence of more than a simple majority of the two houses, these terms import the whole, and not a part of the house. In all these instances the convention has employed the proper and appropriate language to express their intention. The words or phrases usually employed for this purpose are, “two-thirds of both houses of the legislature;” article 4; section 27. “Two-thirds of each house;” article 5, section 15; and “two-thirds of both branches of the legislature;” article 7, section 8. These words, of themselves, unexplained by other or superadded words, clearly import the whole body, and exclude the idea that a quorum, or only part of the body referred to was meant. In the very clause (article 3, section 15,) in which it is declared that a majority of each house shall constitute a quorum to do business, the meaning of the term “ house” is indubitably ascertained to be a component member of the legislative body, consisting of all the members elect.
The construction which, in my opinion, ought to be put upon these terms, vindicates the consistency, the policy, and the wisdom of the Constitution. By adopting this construction, we secure, in reference to all legislation of more than ordinary importance and solemnity, maturer deliberation, and a concurrence of a greater proportion of the two houses; thus preventing, to some extent at least, hasty, ill-advised and sinister legislation. By holding that the words “branch” and.“house,” in every instance in which they are used — unless from the context, or otherwise, it plainly appears that they were employed in a qualified sense — import the whole and not a part of the body to which they refer; and, as it is the house which always acts, whether the act is performed by a “ quorum,” “two-thirds,” or a greater proportion, by holding also that whenever “the house” may act by a simple majority, a quorum
Having ascertained the true constitifcmalij|)pÍ!!rt ofdpm ijérms “branch” and “house,” it follows, of n^ft^ty, tja'^’iney^re to receive the same construction, in the articl(»|or ^tep-dmagohe Constitution, unless, it is manifest from the conte^¿^g,sá^ect-matter, or the object, that a different interpretation was applied to them.
It is not pretended that the language of the article, taken without reference to any other part or provision of the Constitution, furnishes evidence of such intention. On the contrary, it is not to be questioned that these terms, as they stand associated with the language of the article, bear the precise signification applied to them in the fourth section, third article of the Constitution, where their import is fixed. Hence, unless these terms are explained by some other provision of the Constitution, or unless a different meaning, arising from the subject of the article in which they occur, is to be affixed, by “two-thirds of each house” is meant, not two-thirds of a quorum of each house, but two-thirds of the members of each house.
But in the argument it was assumed, that the terms “ branch” or “house” implied, according to their general meaning, an organized body, which, under the Constitution, was authorized to perform acts of general legislation. Hence, it is contended, that wherever these terms are used in the Constitution, without further words defining the sense in which they are used, a quorum or simple majority of the house is indicated.
I have shown that this assumption is unfounded. It remains, then, to be ascertained whether, from the nature and character of the subject and object of the article, it can be collected that a different meaning was intended.
That this inquiry must be responded to in the negative, seems scarcely to admit of doubt.
According to the American theory of government, the legislative power does not embrace the authority to ordain constitutions, or to alter or abolish the form of government. It is hence, not to
The power, therefore, which by this article in the Constitution, was delegated to the senate and house of representatives, is not, in its nature, legislative. It is an extraordinary power, pertaining in no respect, whatever, to their legislative functions. The effect of the provision is to erect the legislative branches into a tribunal, whose peculiar and exclusive duty it is to determine, in the name of the sovereign power of the State, when it is necessary to amend the fundamental laws, and what alterations should be made in them. It is true, in regard to any proposition to amend the Constitution, submitted by this tribunal, an absolute veto is reserved to the people. But for this reason its functions are not the less solemn and important. It has the exclusive right to decide when it is expedient to propose a change, and to determine the precise form and character of the projected amendment; the people have no right to modify the proposition submitted to them; they have reserved the power simply to approve or reject.
Surely, if any thing should be stable and permanent — not to be changed for slight and transient causes; if any thing ought to be held sacred — not to be touched, except by the cautious hand of wisdom, it is the organic law which a people have ordained.
I may safely assume that, if there be any one matter of greater importance, and of a more solemn character than another; or if there be a measure which should require greater deliberation, and a concurrence of a greater proportion of the two houses to pass it, it is a proposition to change the Constitution.
In my opinion, therefore, all the considerations arising out of the subject-matter of this provision, and the objects of the convention, fortify the conclusion that it is essential to the validity of an act, the object of which is to change, alter or amend the Constitution, that it should be passed by a majority of two-thirds of the whole of each house “on three several occasions.”
2. It is admitted, according to this construction, that the bill in question was not passed in conformity with the provisions of the Constitution. It becomes, therefore, necessary to examine the second question, as above stated.
No bill, except in the cases especially provided for, can have the force and effect of a law until this is done. The general method of authenticating the acts of the legislature is, therefore, by the signature of the presiding officers, and the governor.
By the Act of March 1st, 1833, it is made the duty of the secretary of state to take charge of, and safely keep in his office, the journals, papers, documents, and proceedings of both houses of the legislature. It is also made the duty of the secretary of the senate, and the clerk of the house of representatives, immediately upon the adjournment of the legislature, to deliver to the secretary of state, “ every document and paper in anywise appertaining to the same.” Hutch. Code, 386, § 2.
Unless the terms, “documents and papers” pertaining to the proceedings of the legislature, include the acts and resolutions, no authority is given by law to any one to deliver these documents to the secretary of state. The law, however, presumes that they go legally into his possession, as he is required, immediately after they shall have been delivered to him, to cause to be made out and delivered to the printer, an attested copy of the acts and resolutions passed at each session; and to compare the printed. copies with the original rolls, “ which original rolls shall be filed and kept in his office.” Hutch. Dig. 386, § 3.
It was said, in argument, that when an act of the legislature has passed through these forms, and has been filed in the secretary’s office, it becomes a record, and has all the legal incidents of a record, by the rules of the common law; and the same effect as evidence of the validity and existence of the Act, as the parliament rolls have in England.
It is, hence, contended, that the Act, which it is admitted was signed by the presiding officers of the two houses, and by the governor,-and filed in the secretary’s office, is conclusive, not only
The public acts of parliament, after they have received the royal assent, are transcribed upon parchment rolls, certified by the clerk of parliament, and deposited in the rolls office. The original acts are retained in the custody of parliament. The rolls, when thus certified and deposited in chancery, are records, and import evidence of the highest and most absolute character. 2 Phil. Ev. (ed.-by H. & C.) 128; 1 Stark. Ev. 231, (7th Am. ed.)
In England, the courts take judicial notice of the public acts of the realm. And, as the plea of nul tiel record cannot be pleaded to a general statute, whether it be a statute or not must be ascertained by the judges, from an inspection of the record, or in any other appropriate method. Dwarr. on Stat. 631.
In Great Britain, there is no written fundamental law, defining and limiting the powers of the government, by which the validity of the acts of any of the departments may be tested. The parliament, in a political and legislative sense, is omnipotent and .supreme. The power and jurisdiction of parliament, says Lord Coke, are so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. 4 Inst. 36. “And so long,” adds Sir William Blackstone, “ as the British Constitution lasts, it may be safely affirmed, that the power of parliament is absolute and uncontrolled.” 2 Com. 162.
A void act of legislation necessarily implies the existence of a superior and controlling power in the State. There are but two conceivable reasons for which an act can be void. First. For want of power in the legislature to pass it. ' Second. Because it has not been passed in the method required to make it valid. And the universally received doctrine in England is, that an act of parliament of which the terms are explicit, and the meaning plain, cannot be questioned, or its authority controlled in any court whatever. The idea, therefore, of an unconstitutional law of parliament, can have' no existence under the English system of government. The parliament rolls, which are transcripts of the acts, made up under the supervision of officers appointed by parliament, and declared by law to be records, necessarily, I may say naturally, are conclusive evidence of the existence of the statute, and imply the due per
The principles of the common law, unsuited to our condition, or repugnant to the spirit of our government, have no existence within this commonwealth. It required no act of positive legislation to repeal them. They have been excluded by the silent operation of our institutions. It is clear, therefore, that this rule, as a principle of the -common law, can have no operation within this State.
For, under the American theory of government, the jus summi imperii, the supreme, absolute, uncontrolled authority, does not reside in any of the departments of the government, nor in all of them united. It is inherent in the (people, from whom all power is derived, and upon whose consent all government is founded. The Constitution derives its existence from the immediate act and consent of the people. It is a law to the government “ which derives its just powers therefrom,, as from the assent of the governed, for whose benefit that power is intrusted.” As the Constitution is the supreme law, all the acts of the government or the departments thereof, done in contravention of its provisions, are inoperative and void. An act of the legislature which has not been passed in conformity with the directions of the Constitution, is equally void, with one whose terms violate its provisions. Bill of Rights, article 8.
The judiciary, like all the departments, are bound by the Constitution, and sworn to support it. It is, therefore, their duty to pronounce an act of the legislature null, and to refuse to give it effect, if it be void for either of these causes.
It will not be controverted, that an act making an appropriation for works of internal improvement, which was not passed by two-thirds of each branch of the legislature, is as perfect a nullity, — is as void, — as a statute, although agreed to by every member, which impairs the obligation of a contract. Nor can it be a subject of debate, that if, in the case supposed, it could be judicially ascertained, that the Act was not passed by a two-thirds vote of each house, the courts would have the power, and, hence, be bound to declare it void.
But if, upon the principle of the common law, on which it is
The proposition, that when an act, purporting upon its face to have been regularly passed, is signed by the presiding officers of their respective houses, it is to be taken and held conclusive evidence that it was duly enacted, whether, in fact, it was so passed or not, is, therefore, clearly inconsistent with the existence of a higher authority — a supreme law — to whose behests the legislative power is bound to conform. The assertion of the principle contained in this proposition would practically abrogate the explicit and imperative directions of the Constitution, in regard to the forms and modes of passing laws having reference to the various subjects of legislation. It would leave as the sole safeguard for the protection of the Constitution, and the only security for the rights of the people, the honesty and fidelity of the legislative bodies.
It was said, in argument, that in all political organizations, some individual or some tribunal must ultimately be trusted; that there is a point, beyond which it' is impracticable to apply any effective check against the abuse of delegated authority; and, that in the arrangement of the political machinery, society, in many instances, is, of necessity, compelled to confide in the virtue, intelligence, and patriotism of those intrusted with power, as the sole guaranty for its faithful exercise. And, that as the authority to determine when a bill has been passed by the legislature in the mode prescribed in the Constitution, must be lodged somewhere, it' has been properly and necessarily deposited with the presiding officers of the two houses, and the governor; and when they determine that question by affixing their signatures to the Act, their decision is final and conclusive.
That these positions are untenable, and, hence, are no sufficient answer to the views above expressed, a brief examination will show.
When the question before either house of the legislature is, whether a bill — as for example, a bill proposing an amendment of the Constitution — should be passed by two-thirds of a quorum; or, whether it is essential that two-thirds of the whole house should concur in its passage, it is manifest that the point to be determined is not a question of mere fact; that is, whether two-thirds of a majority, or two-thirds of the whole house have concurred in passing the bill. It is clearly a question of constitutional power, which the house must decide, but which it can only determine by construing the Constitution.
Would the judgment or decision of the house, in the supposed case, be final and conclusive, and hence, necessarily exclusive of the power of the judiciary ? It seems to me, if there is a settled principle of constitutional law, it would not.
In all cases, whatever, where the legislature proceeds to act upon a given subject, it must, beforehand, judge of its authority to legislate. It must, of necessity, before it can legislate on any subject, decide that it possesses the power to do so. And there is not the slightest distinction in principle, between a case where the house decides that it has the power, by a majority, or two-thirds of a quorum, to enact a law, and a case in which it determines that it is vested with authority to legislate on a given subject. Both questions must be determined by a construction of the Constitution ; but, as the legislature derives its power from the Constitution, and can only act in subserviency to its mandates, it would be absurd to hold, that its determination upon either question is final and conclusive. The legislature is not the exclusive judge of its own .jurisdiction and power; and it is not to be contested that, whatever view it may take of them, will not preclude the judiciary from declaring its acts void.
When the validity, and of consequence, the existence of a statute is brought in question, upon the ground that the Constitution was violated in the mode of its enactment, the question is, in what way shall it be ascertained ? By what evidence- shall the question be determined ?
The Constitution has not, by implication, nor in express language, declared that the enrolled act deposited in the secretary’s office, shall constitute the record of the statute, to which the same incidents attach which belong to the parliament rolls in England. And if I am correct in the views above expressed, of the theory and structure of our government, it results, logically and necessarily, that the enrolled act is not the highest nor the most conclusive evidence to which resort may be had.
There is no statute which declares expressly, that either the enrolled act, deposited with the secretary of state, nor the printed copy of the acts, shall be the evidence to prove the existence of the statutes. There can exist no doubt, however, that the enrolled act would be better evidence than the printed copy, and that either is prima facie evidence of'the existence of the act. The question then is, what is the highest and best evidence on the subject ?
The Constitution requires each house to keep a journal of its proceedings,- and to publish the same: article 8, section 17. These journals are made up under the immediate supervision of the re
The Constitution has laid down specific directions as to the method in which certain laws must be enacted. If not passed agreeably to these directions, it is needless to say that they are null and void. But why declare an act to be null and void, unless it be pass.ed in the prescribed mode, if the mere fact that it was adopted by the legislature, is conclusive that it was so passed ? The proposition presents a palpable absurdity. It is absurd to say, that an act not done in a prescribed mode shall be void, and at the same time to hold that, in no matter what way it shall have been performed it is valid. Upon this construction, the restriction upon the will and power of the legislature is totally unmeaning and ineffectual; it nullifies the Constitution. It is of the very nature and essence of the fundamental law of a State, that it renders void every act done in violation of its provisions. The idea cannot exist, that a statute which is repugnant to it, can have the force and effect of a law. It belongs to the judicial department, as a matter of right and of duty, to declare every act of the legislature made in violation of the Constitution, or any provision of it, null and void. It may, therefore, be assumed, that the framers of that instrument designed to provide the means by which all acts of the legislature violative of its provisions, might be inquired into and avoided.
If such was their intention, what more appropriate method, I ask, could they have devised, than the one which, in my opinion, they have adopted. It is made the solemn duty of the two houses to keep a journal of their proceedings. This was certainly the most appropriate, as well as the most natural method, of securing a correct history and record of their legislative proceedings. If the journals are honestly kept; if the manifest intention of the Constitution is complied with, they must contain distinct and positive evidence whether, in the enactment of any statute, the mandates of the Constitution have been obeyed ? If so kept, they
In the absence of any constitutional provision or statutory enactment declaring in what method the statutes may be proved, it may therefore be safely affirmed that the legislative journals constitute the highest and most conclusive evidence of the existence and due enactment of an alleged statute.
Additional considerations exist, which would seem to render this position positively certain.
When a bill, having passed both houses, is vetoed by the governor and returned to the house in which it shall have originated, it is reconsidered; if agreed to by two-thirds, it is sent to the other house, which is likewise required to reconsider it; and if two-thirds of that house concur in its passage it becomes a law, without or rather against the assent of the governor. Art. 5, sect. 15. It is provided also, in the same section, that “ if any bill shall not be returned by the governor within six days (Sundays excepted) after it shall have been presented to him, the same shall become a law, in like manner as if he had signed it, unless the legislature, by their adjournment, prevent its return, in which case it shall not become a law.”
Generally, the signature of the governor is essential. But in these instances the enrolled act, which has become a law, if filed in the secretary’s office, will be unattested by the signature of the executive. Under these circumstances what would it prove ? what is the nature of the evidence which it imports ?
If the legal effect and incidents of a record at the common law attach to the legislative rolls, as they are called, an act signed by the speaker and president of their respective houses, but which is unattested by the governor’s signature, would not be any evidence whatever of the existence of the law, for the obvious reason that the record would show, upon its face, that the act was not approved by the executive department. If the legislative roll was the conclusive, and hence exclusive proof of the existence of a statute, it would, in this ease, be evidence not of the existence, but conclusive proof of the non-existence of the law.
Courts are bound to take notice of public statutes without their
Let us take the case of a bill which, having passed both houses, is vetoed by the governor, and returned with his objections. If it be re-enacted by a concurrence of two-thirds of each house, it becomes a law. The act, at the close of the session, is delivered by the clerk of the house or the secretary of the senate, to the secretary of state, and is placed on file with “ all the papers and documents pertaining to the proceedings of the legislature.” As neither the law nor the Constitution has authorized or required the presiding officers of the two houses to certify to the governor or to any other officer, the fact of the re-enactment of the bill over the executive veto, it could exhibit, when on file in the secretary’s office no evidence of its having become a law, except what is furnished by the attestation of the presiding officers of the two houses. But as their signatures were affixed to the bill upon its passage, in the first instance, before it was presented to the governor' for approval, and of consequence, before it was a law, they would be no attestation of any subsequent act of either the executive or legislative department, which would be essential to its validity as a statute.
Again, where a bill, having passed both houses, has, in consequence of its retention for six days, become a law without the approval of the governor, the legislative rolls would furnish no better evidence of the bill having become a law, than in the instance where a bill has been re-enacted against the veto of the governor. Indeed there might be no legislative or statute roll on file in the secretary’s office; as neither the Constitution nor the law has made, in such a case, any provision for certifying and filing the bill in the office of the secretary.
In each of these instances, it is not to be questioned that the act is a law. But in either case the rolls furnish no evidence of that fact; on the contrary, if they alone are to be consulted, the proof would be conclusive against the existence of the law. In either case the courts are bound to take notice of the act; they are bound
This question is not a new one in this country. In Missouri, in the case of The State v. M'Bride, 4 Missouri, R. 303, it was held that the legislative journals were competent evidence to show, whether in the passage of an act to amend the Constitution, the provisions of the Constitution had been complied with, and the bill passed by the requisite majority.
In the State of Illinois, the same doctrine has been recognized. In the case of The People v. Campbell, 3 Gilman, R. 466. It was decided that a joint resolution repealing a statute, was null and void, because it was not read on three several occasions as required by the Constitution. It is true, in that case, that the question whether it was competent to look beyond the legislative roll for the purpose of ascertaining from the journal, if the resolution was adopted in the mode prescribed in the Constitution, was not raised. The right was conceded, and the journals were referred to for that purpose.
In the case of The People v. Purdy, 2 Hill, (N. Y.) Rep. 31, the question was, whether the court could, legitimately, look beyond the printed statute book, for the purpose of ascertaining whether bills coming within the two-thirds clause of the Constitution had received, on their passage, the requisite number of votes.
The printed copy of the statutes, published by the State printer, was made evidence by the statute law of New York. 1 R. S. 164, § 191. It was also declared, that “ no bill should be deemed
The question arose upon a statute coming within the two-thirds clause, but which was certified as an ordinary majority bill. And Mr. Justice Bronson held, notwithstanding the explicit declaration of the statute, that “ all laws passed by the legislature might be read from the volumes printed under the direction of the secretary of state that it was competent to look beyond the printed copy contained in the statute book, for the purpose of ascertaining whether the act was passed in conformity with the directions of the Constitution.
Although it was also held, that the engrossed bill on file in the secretary’s office, certified as an ordinary majority bill, was prima faeie evidence that it was not passed by the assent of two-thirds of each house; as a matter of fact, the journals were inspected by the court, and they proved the fact, that the bill had not been passed by the constitutional vote. It is manifest, therefore, that the question before the court in that case, is precisely analogous to the question now before us. And I quote the language of the learned judge, as a strong vindication of the doctrine contended for in this case.
He said: “We live under a government of laws, reaching as well to the legislature as to the other departments of government; and if we wish to uphold and perpetuate free institutions, we must maintain a vigilant watch against all encroachments of power, whether arising from mistake or design, and from whatever source they may proceed. The Constitution, in its terms, and upon a particular class of cases upon which the legislature may act, denies to a bare majority of members, the power, which, in other cases, they undeniably possess. To give efficiency to this provision, and secure the people against the exercise of powers not granted, we must, I think, look beyond the printed statute book, and inquire whether bills creating or altering corporations have received the requisite number of votes.”
The views and opinion of Judge Bronson, upon this question, were sanctioned and sustained, unanimously, by the Court of Errors; and to judge from the opinions of the different members
I have found no American authority holding a different doctrine ; and believe that none can be found. As the question stands now before the courts of this country, the authority is all in favor of the view which I have taken of it; and I have endeavored to show 'that that view is sustained by reason.
I have thus, in as brief a manner as possible, stated my conclusions, and the reasons on which they are founded. It remains only, to declare my opinion, which is, that the Act of the 2d March, 1854, proposing an amendment of the Constitution, was null and void, having been passed in violation of its express provisions; consequently, that the subsequent action of the people and the legislature, under it, is equally null and void; and, hence, that the amendment inserted in the Constitution at the late session of the legislature, is no part of the Constitution of the State of Mississippi.
Note. — Nor Judge Nisher’s opinion, see appendix to vol. 4.
