Harwood v. Wentworth

42 P. 1025 | Ariz. | 1895

Lead Opinion

ROUSE, J.

(after stating the facts).—This action, though entitled a proceeding in mandamus, was in fact an action for an office by plaintiff, in his own right, as provided by title 62 of the Revised Statutes, entitled “Usurpation of Office.” No question having been raised in the district court or in _ this court as to the form of the action, we will consider it only on the record before us.

The action is based on the provisions of act No. 51 of the eighteenth legislative assembly of the territory of Arizona, as it appears in the published laws of that session, on pages 68, 69, and 70. Plaintiff was the duly elected and qualified recordel’ of Cochise County, and, ns such recorder, claims possession of the boobs, records, etc., of the board of supervisors of said county, as per the provisions of the third subdivision of section 2 of the act last men Honed. Cochise County is a county of the third class, as established by said act; and by said subdivision plaintiff is ex officio clerb of the board of supervisors of said county. In said subdivision is the following: “Third. . . . The county recorder shall be ex officio clerk of the board of supervisoi:;. ...” Said act was first introduced in the house as house bill No. 9. The plaintiff offered in evidence a certified copy of said bill. The certificate attached thereto is as follows: “I, Charles M. Bruce, secretary of the territory of Arizona , do hereby certify that the within copy is a true and complete transcript of the house bill No. 9 of the eighteenth legislative assembly of the territory of Arizona, filed in this office the 22nd day of March, A. D. 1895, at 4 o’clock p. m., as provided by law. ...” The said certified copy of the act is the same as act No. 51, published on pages 68, 69, and 70 of the Session Laws of the eighteenth legislative assembly of the territory of Arizona. The defendant contends that when said bill passed the respective houses of the legislative assembly it had two sections (viz., sections. 5 and 6) more than are in the said certified copy of said act; that said sections were omitted or stricken from the engrossed bill after the bill was passed, and before it was enrolled, and signed by the presiding officers cf the two houses, and the governor. And the evidence offered by him was for the purpose of establishing that fact.

It is admitted by the counsel for defendant that the introduction of the copy of the act certified to by the secretary of the territory, as evidence, was proper, as per paragraphs. 1867-1870 of the Revised Statutes of Arizona, but he contends that the journals of the respective houses of the legislative assembly may be received to show that said act is not correct. It is admitted that said 'Ortified copy is printed in the acts of the eighteenth legislative assembly. Paragraph 1867, supra, is as follows: “The printed statute-books of this territory, . . . shall be received a? evidence of the acts . . .. therein contained.” It is provided in paragraph 1868: “A certified copy under the hand an .1 seal of the secretary of the territory of any act . . . deposited in his office, in accordanee with law, shall he received as evidence thereof.” Paragraphs 1869 and 1870 contain similar provisions. By the provisions of the foregoing paragraphs, it is clear that the certified copy of the act referred to must be received as evidence, and its provisions cannot be added to nor taken from, unless the said paragraphs are in conflict with the provisions of the constitution of the United States, or of the acts of Congress. Said paragraphs cannot be in conflict with said constitution and the acts of Congress, unless the constitution and the acts of Congress make the journals of the legislative assémbly evidence of that nature that acts of said assembly may be shown to be different from the acts which have been enrolled and signed, and deposited with the secretary of the territory. By section 1844 of the Revised Statutes of the United States it is provided: ‘ ‘ The secretary shall record and preserve all the laws and proceedings of the legislative assembly, and all the acts and proceedings of the governor in the executive department; he shall transmit one copy of the laws and journals of the legislative assembly. . . . He shall prepare the acts passed by the legislative assembly for publication and furnish a copy thereof to the public printer of the territory within ten days after the passage of such act.” The officer mentioned in the statute just quoted is the secretary of the territory,—an officer appointed by the President of the United States, and one on whom, by said statute, certain official duties are imposed. It is thereby made his duty to record and preserve the laws of the legislative assembly, and to prepare the acts (laws) for publication, and to furnish copies thereof for publication. Prom him alone can the acts be received and published. The laws of the territory are therefore committed to his keeping, and from him, and in no other way, can they be received for publication, and be published by authority. By an act of Congress approved July 19, 1876, (1 Supp. Rev. Stats. U. S., p. 230, c. 212,) it is provided “that every bill which shall have passed the legislative council and house of representatives of the territory of Arizona shall, before it becomes a law, be presented to the governor of the territory; if he approve it, he shall sign it; but if he do not approve it, he shall return it, with his objections, to the house in which it originated, who shall enter the objections at large upon their journal, and proceed to reconsider it. If, after such consideration, 1 wo thirds of that house shall pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house it shall become a law, the governor’s objections to the contrary notwithstanding; but in such case the votes of both houses shall be determined by yeas and nays, and be entered upon the journals of each house respectively. ...” By said act of Congress, it is provided that every bill which shall have passed the legislative assembly shall, before it becomes a law, be presented to the governor. If he approves it, he must sign it. When signed by the governor, r; is a law, and then it must be recorded, and preserved by the secretary, and published, etc., as specified in section 1844 of the Revised Statutes of the United States, supra. If a document purporting to be an act of the legislative assembly be presented to the secretary of the territory, having upon it the signature of the governor, and purporting to have been approved and signed by him as a law, the secretary may treat it as a law, and cannot resort to any other means to determine whether it is a law or not. The act under consideration is such a, document. It is not necessary for us to determine what would be the duty of the said secretary in case such a document had not been approved by the governor when presented to him, and had been returned by him to the house in which it originated, with his objections. If the journals of the legislative assembly can be received in evidence, it is certain that they can be received as evidence only in cases where the bill has been returned by the governor to the house in which it originated, without his approval.

Counsel for appellant contends that certain paragraphs of chapter 4 of title 60 of Revised Statutes of Arizona make the journals of the legislative assembly evidence in this case. We have carefully examined that statnte, and find nothing therein to warrant such a conclusion. That statute contains provisions directing the mode of procedure of the legislative assembly, but it contains no provisions differing materially from those contained in the acts of Congress heretofore quoted.

The courts of many of the states have decided that the journals of the legislative assemblies are proper evidence in -cases similar to the one before us, while the opposite has been held by the courts of about an equal number of states. As a rule, the courts that have held that the journals are evidence base their decisions upon the provisions of the constitutions •of their respective states, and it will be observed that those provisions differ materially from the congressional acts herein cited. The acts of Congress with reference to the territories are to the territories what the constitutions are to the states. The act of Congress as to the journals, referred to, is nearly identical with the provisions of article 1, section 5, of the constitution of the United States. The supreme court of the United States, in the case of Field v. Clark,—a case possessing facts nearly identical with the facts in this case,—decided that the signing by the speaker of the house of representatives and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress, and when the bill, thus attested, receives the approval of the President, and is deposited in the department of state according to law, its authentication as a bill that has passed Congress is complete and unimpeachable; that it is not competent to show from the journals of either house of Congress that an act so authenticated, approved, and deposited did not pass in the precise form in which it was signed by the presiding officers of the two houses, and approved by the President. Field v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495.

The question involved in this case is as to the evidence that can be introduced with reference to a bill which has passed the legislative assembly, been signed by the presiding officers of the respective houses, approved and signed by the governor, and deposited with and recorded by the secretary of the territory according to law. No question can be raised in this case with reference to a bill which had not been passed, and authenticated by the signatures of the presiding officers of the respective houses of the legislative assembly, and by the governor. A bill of that character would not become a law by any acts of the secretary of the territory. His acts are simply ministerial, with reference to all the duties required of him by the said acts of Congress, supra.

The only contention of the appellant in this case is, that the enrolled bill, when signed by the presiding officers and approved by the governor, had not all the parts which it had when it passed the respective houses of the legislative assembly, and he contends that the journals of the respective houses are evidence in this ease. The acts of Congress and the statute of Arizona referred to expressly require that certain matters shall be entered upon the journals. We need not determine what would be the effect of a failure to comply with said requirements. No such question is before us. As to matters not expressly required to be entered in the-journals, they are left to the discretion of the legislative assembly. We are not advised of any rule of said legislative-assembly, or either house thereof , requiring the entry of bills-in full on the journals, or of the c-ntry of amendments thereto-in full on the journals. Unless the bill in question was spread upon the journals in full at the time it passed, it would not-be possible to determine by the journals whether the enrolled bill was the same as the engrossed bill or not. The journals,, therefore, would not be sufficient to prove the facts contended for by appellant, or to peove any fact contended for, without the aid of parol evidence. The journals of a legislative assembly, as a rule, are made up of short minute entries, framed by the clerk, in language chosen by him, without time for deliberation, which, in his judgment, he believes sufficient to express what was done. Bills and amendments; thereto are usually mentioned in the journals, and noted therein, by their title and numbers. The journals, in the nature of things, must be constructed out of loose and hasty memoranda made often in the pressure of business. In the main they are kept for the benefit of the members of the body, to aid them in the discharge of their legislative duties, and that the public may be informed of the acts of the individual members. 1 Story on the Constitution, secs. 840, 841. In Pangborn v. Young, 32 N. J. L. 29, 37, it is said: “Can any one deny that if the laws, are to be tested by a comparison with these journals, so imperfect, so unauthenticated, that the stability of all written law will be shaken to its very foundation? In judging of consequences, it is scarcely too much to say that the legal existence of almost every legislative act would be at the mercy of all persons having access to these journals; for it is obvious that any law can be invalidated by the interpolation of a few lines, or the obliteration of one-name and the substitution of another in its stead.” For a court to permit, evidence to impeach an act which purports to-have passed the' legislative assembly, attested by the signatures of the presiding officers of the respective houses thereof, approved and signed by the governor, and deposited with the officer who by law is the custodian thereof, without authority by constitutional provisions clearly expressed, would be to destroy the independence of one of the three co-ordinate branches of our government, and make the legislative department subordinate to the judicial. Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825.

The only other question presented is as to the constitutionality of said act. Appellant contends that it is in conflict with the provisions of the act of Congress commonly •called the “Harrison Act,” and for that reason void. Said act of Congress contains, among other provisions, the following, viz.: ‘ ‘ That the legislatures of the territories of the United States . . . shall not pass local or special laws in any of the following enumerated eases, that is to say: Granting divorces. Changing the names of persons or places. Laying nut, opening, altering, and working roads or highways. . . . Regulating county and township affairs. Regulating the practice in courts of justice.. . . . For the punishment of «rimes or misdemeanors. . . . Regulating the rate of interest ■on money. . . . Creating, increasing, or decreasing fees, peroentage, or allowances of public officers during the term for which said officers are elected or appointed. ...” 24 Stats. 170. The contention is that it is in conflict with the last sentence quoted, viz., “Creating, increasing, or decreasing fees, percentage,” etc. Before the act under consideration was passed, the counties of the territory were divided into three classes,—viz., first, second, and third. Said classification was based upon the number of registered voters. All counties having a certain number of voters were counties of the first class; counties having a less number of voters than what was required for a first-class county, and more than a certain designated number, were counties of the second class; and counties having a less number of voters than the number required to make a county of the second class were of the third class. During the existence of such classification, laws were enacted fixing the fees and salaries of county officers according to the said classification. As a rule, an officer of a first-class county received more than an officer of the second class, and an officer of the second-class counties morn than one of the third class. The officers of counties of one class received the same compensation,—i. e. a sheriff of one first-class county received the same compensation which was allowed the sheriffs of all other first-class counties. The act in question changed the mode of classification from the number of registered voters to the assessed valuation of the property within the counties. By it, counties having the greatest amount of property are made first-class counties. Under this act the counties of the territory are divided into six classes, and the fees and compensation of the officers of each class are uniform throughout, just as they were under the former classification. The purpose of said act of Congress is to prevent special legislation. The act under consideration is not such legislation. The judgment of the district court is affirmed.

Hawkins, J., concurs.

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Concurrence Opinion

BAKER, C. J.,

concurring.—The great importance of the questions involved in this appeal must serve as an apology for outlining my views. The delicate equipoise existing between the judiciary and the legislative departments of the government, if not the integrity of the latter, and the stability of the whole body of our statute laws, are fairly within the issues presented, and in such a case it must be permissible to urge every sound reason in support of the final conclusion.

The point is, Can the journa.s of the legislature be introduced in evidence to contradict or nullify the enrolled bill? In other words, Is this the bill as it passed the legislature? The duty of the courts to pronounce an act void which is repugnant to the constitution must hot be confounded with this inquiry. For more than a .hundred years the courts of this country have not hesitated to declare an act of the legislature void when clearly in conflict with the fundamental law. 1 Kent’s Commentaries, 450. And this duty does not involve any conflict between the courts and the legislature, for it is only securing to each kind of law its due authority. The conflict is really between the different kinds of law,—the constitution and the statute. Xor does the exercise of this function show that the judicial power is superior in dignity to the legislative. Cooley on Constitutional Limitations, 195. Manifestly, the. legislature cannot settle the question of the constitutionality of a statute, because it is a party interested, and must of necessity decide in its own favor. The method of determination pursued by the courts is to put the statute alongside the constitution, and the final determination is made upon the face of the two instruments. Now, the contention here is not that the bill is in conflict with some provision of the constitution, but it is that it never passed the legislature in its present form; that two material sections are omitted from the act, one of which postpones its effect until January, 1897. The proposition is to prove such omission by the joirrnal entries. It may be conceded that to decide whether or not the journals of the legislature may be explored to determine whether or not the act passed the legislature is to declare a rule of evidence. This being so, the argument is pressed that the undisputed facts in the case show that this is not the bill passed by the legislature, and that the omissions referred to actually occurred. The parties agreed to this,—agreed that certain affidavits and exhibits attached (copies of journal entries) should be considered in evidence; and these clearly show the omission. Counsel for appellant then proceeds to argue: “The facts show that this bill was never before either house at all,—was never passed by either house,—but after a bill had passed both houses an entirely different bill was made up by some clerk of a committee and handed to the governor to sign. The bill handed to the governor is not an enrolled copy of the bill which had passed the house, hence the bill never passed at all. Here is the question presented, and here is the issue.” It is plainly to be seen that this gives the question the slip. By what authority is the admission made? Who is to defend the legislature when a private litigant is suffered to admit that it stultified itself? I will never consent that suitors may stipulate the invalidity of a statute. If the journals themselves are inadmissible to contradict the law, the admissions of the parties are equally so. If the journals are incompetent evidence, the admissions will not make them competent, and the case must be decided as if the journals were offered in evidence, and objected to in due time as incompetent. Mr. Justice Cooley declares that the courts will not act upon the admissions of parties that a bill was not passed in accordance with the constitution. Cooley on Constitutional Limitations. 163.

But to the exact point: At common law an authenticated act of parliament was conclusive and unimpeachable. “And it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament; for it is a maxim in law that it requires the same strength to dissolve as to create an obligation.” 1 Blackstone’s Commentaries, 185, 186. “The journal is of good use for the intercourse between tl:e two houses, and the like. When the act is passed, the journal is expired. The journals of parliament are not records, and cannot weaken or' control a statute, which is a record, and to be tried only by itself.” Rex v. Arundel, (Trinity Term) 14 Jac. Hob. 109-111. Lord Coke declared: “A record or enrollment is a monument of so high a matter, and importeth in itself such absolute verity, that, if it be pleaded there is no such record, it shall not receive trial by witnesses, jury, or otherwise, but only by itself.” 2 Blackstone’s Commentaries, 330. “The secretary [territories] shall record and preserve all the laws and proceedings of the legislative assembly,” etc. Rev. Stats. U. S., see. 1844. Thus, by an express statute, the. acts of the legislature become a “matter of record,” in a permanent and lasting form. It cannot be successfully denied but that the rule announced by these ancient authorities is the same as is understood and practiced in the English courts to-day. “The •common law of England as now practiced and understood, shall, in its application to evidence, be followed and practiced by the courts of this territory, i.o far as the same may not be inconsistent with this act, or nay other law.” Rev. Stats. Ariz., par. 1862. So it may be fairly claimed that the English rule is established by statute. I am inclined also to view the effort to introduce the journal entries in this case as collateral attack upon a high reco :d, which cannot be sustained by proof aliunde. Brodnax v. Groom, 64 N. C. 244. That a solemn record may not be assailed by evidence outside of itself is a universal doctrine in our jurisprudence. So stringent is the rule that it is not allowable to introduce a minute entry of the same court to show that a judgment was set aside. The court said: “There is no doubt of the competent power in the court to make such a rule, but the question is whether the entry of such a rule upon the minutes is to be received as evidence against the record. It appears contrary to all well-settled technical rules upon the subject to give the entry that effect. A record imports verity, and can only be tried by itself.” Croswell v. Byrnes, 9 Johns. 290. “The minute entry may be used to correct the judgment, but not to contradict it.” Hahn v. Kelly, 34 Cal. 423. It cannot be well argued that the journal entries of a legislature, in their relationship to the bill, are superior to the minute entries of a court, in their relationship to the judgment. Besides, it may be inferred by the direction to keep a journal (Rev. Stats. Ariz., par. 2895) that its use is to be for the information of the legislative body alone. Board v. Stevenson, 46 N. J. L. 173; Rex v. Arundel, supra. The decisions in other jurisdictions greatly vary. In numbers, merely, they may preponderate in favor of the rule which accepts the journal entries in evidence. But many of these cases are inapplicable to the case at bar. They have been decided generally upon some mandatory provision of the state constitution, requiring the evidence of a compliance with the mandate to be “entered” in the journals. Thus a reason is given for the case. All such cases may be safely laid aside in this matter, for no constitutional provision is in issue, except the general requirement that all laws shall be enacted by the legislature. ■“An opinion in a particular case, founded on special circumstance, is not applicable to cases under circumstances essentially different.” Brooks v. Marbury, 11 Wheat. 90. Besides, we ought not to be influenced so much by the mere numerical array which can be paraded for either side, as by the sound principles of law and just reasoning which may be embodied in the cases. It may be well to observe, also, that in the jurisdictions holding the journal entries admissible the tendency is to recede from the position. In Glidewell v. Martin, 51 Ark. 559, 11 S. W. 882, Mr. Justice Sandels says, “The courts are gravitating towards the English rule,”— as much may be understood from People v. Starne, 35 Ill. 136. Prom the number of cases supporting, the stand taken by this court, I will cite but a few in addition to those noted in the main opinion, and this is done because of the sound reasoning upon which they are based: State v. Jones, 6 Wash. 452, 34 Pac. 201; Territory v. Clayton, 5 Utah, 598, 18 Pac. 628; Carr v. Coke, 116 N. C. 223, 47 Am. St. Rep. 801, 22 S. E. 16. Is not there too much dynamite in the proposition which admits the journals in evidence to contradict the enrolled bills 1 Is not every statutory right—rights independent of the common law, and out of which have grown valuable title, etc.—endangered when other evidence than the enrolled bill is presented to show that ic is not the law? All of the laws upon our statute-book come from enrolled bills. Punishments, even of death sentence- and life imprisonment, have been passed under them. If these statutes are to be questioned, and forsooth overthrown, in instances, by the loosely kept and fragmentary journals, who is so blind as not to see the result. The United States supreme court declared: “We cannot be unmindful of the consequences that must result if this court feel obliged to declare an enrolled bill, on which depends public and private interests of vast magnitude, which has been duly authenticated by che presiding officers, and deposited in the archives as an act of Congress, was not in fact passed, and therefore did not become a law. ’ ’ Field v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495. Judge Black, in an opinion given upon a similar question, said: “I fear to turn loose a principle which might devour the whole statute-book. ’ ’ Op. Attys.-Gen. U. S. Again, it must be conceded that the different courts, in determining the question, would come to different conclusions,—one holding that the statute was a law, and another holding that it was not the law. What utter confusion would arase! All are presumed to know the law,— are held to know.the law; but, if their knowledge be made to depend upon the varying decisions necessarily arising from contradictory records and hastily prepared journals, the requirement will involve endless confusion and hardship. State v. Boyce, 140 Ind. 506, 39 N. E. 64, 40 N. E. 113. The clear-cut issue here is one of power,—of jurisdiction. The powers of the legislative and judicial departments are not merely equal. They are exclusive in respect to the duties assigned to each. They are absolutely independent of each other. Each, within its sphere, is hedged about with the divinity of sovereignty. “The difference between the departments is that the legislature makes, and the executive executes, and the judiciary construes the law.” Chief Justice Marshall, in Wayman v. Southard, 10 Wheat. 46. “ ‘Judge-made law’ may be judicial tyranny. The invasion of the province of the one by the other is wholly unwarranted. The legislative and judicial are co-ordinate departments of the government, of equal dignity. Each is alike supreme in the exercise of its proper functions, and cannot, directly or indirectly, while acting within the limits of its authority, be subject to the control or supervision of the other without an unwarrantable assumption by that other of power which, by the constitution, is not conferred on it. ’ ’ Judge Cooley, in People v. Governor, 29 Mich. 320, 18 Am. Rep. 89; Cooley on Constitutional Limitations, 159. In the sense of the separate and distinct functions of these two powers, the power to make the laws carries with it the power to declare what has been done in that respect; otherwise the grant is a mockery.

“That palter -with us in a double sense;

That keep the word of promise to our ear,

And break it to our hope.”

To look into the journals, and give them controlling effect, is nothing less than to supervise the making of .the laws. It is an indirect, but nevertheless an effective, way of doing it. And, once set in motion, where would the power end? Suppose the engrossing committee were about to insert a clause in the bill that was never enacted, and the. journal clerks were about to record it; would an injunction issue to prevent the wrong ? It is not so clear why this would not be done, if these entries could be subsequently considered, and given the effect of controlling the bill. Every one must see that such a course would necessarily lead to collisions between the legislative and judicial departments dangerous to the well-being of the whole body politic. It is better—safer—to mark the point where the courts are requested to consider and weigh the formulae by which a bill is enacted, with a view to test the existence of the law itself, as the further limit of judicial power. This rule respects the distinctions existing between the two powers, and accords to the enrolled bill its just due, as being a certain and fixed test, and the highest evidence, of what the legislature has done. It is true that, under the rule announced by the decision, some forger may, for a brief while, play the role of a lawmaker, but that is a less evil than to turn loose in the legislative halls an unbitted and unbridled power of supervision. The succeeding legislature ean undo the villainy of the forger, and, if he is caught red-handed, he can be dealt with as a criminal.