No. 2260; No. 2329; No. 2261 | Tex. App. | Nov 4, 1886
These are convictions for keeping and exhibiting a gaming bank, and the punishment assessed in each" case is fine and imprisonment under and by virtue of the act of March 19, 1885 (Gen. Laws Nineteenth Leg., p. 34), amendatory of Article 358 of the Penal Code; which act enlarges the punishment for said offense by adding to the punishment by fine, as prescribed by said article 358, the punishment of imprisonment in the county jail.
The question presented for our determination is the validity of this said act of March 19, 1885. It is contended" by defendants that said act is invalid, because it was not enacted in conformity with Section 38, Article 3, of the Constitution, which reads as follows: “The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the Legislature, after their titles have been publicly read before signing; and the fact of signing shall be entered on the journals.” It is asserted that this provision was disregarded by the Legislature in that the fact of the signing of this bill by the presiding officer of the Senate was not entered upon the journals of the Senate. The truth of this assertion is unquestionably established by reference to said journals, and if such omission can be noticed by the court, and invalidates the act, then said act is void, and these convictions must be set aside.
In considering the subject, we think it necessary to first determine whether, in the construction of the organic law, we may, as we might in the construction of a statute, apply the distinction between directory and mandatory provisions, or whether we must construe all provisions of the organic law to be mandatory. There is considerable conflict of decisions upon this point. In
But notwithstanding these decisions are by able courts, the great weight of authority seems to be the other way, holding that the courts nor any other department of the government are at liberty to regard any provision of the Constitution as merely directory, but that each and every of its provisions must be treated as imperative and mandatory, without reference to the rules distinguishing between directory and mandatory statutes. Judge Cooley, in his great work on Constitutional Limitation, upon this subject says: “The courts tread upon very dangerous ground when they venture to apply the rules which dististinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essentia] to the things to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a Constitntion provisions, which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which,
In referring to decisions holding a contrary doctrine to his text above quoted, the author says: “ There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions, as they now stand, do not sanction the application.” (Id., 95.)
In our own State we know of no instance in which a constitutional provision has been held to be directory merely. This court has more than once held that constitutional provisions are always mandatory, and has adopted the doctrine laid down by Judge Cooley, which we have quoted above. (Cox v. The State, 8 Texas Ct. App., 254; Holly vs. The State, 14 Texas Ct. App., 505.) We believe this to be the sound and only safe doctrine. It seems to us that the rule which gives to the courts and other departments of the government a discretionary power to treat a constitutional provision as directory, and to obey it or not, at their pleasure, is fraught with great danger to the government. We can conceive of no greater danger to constitutional government, and to the rights and liberties of the people than the doctrine which permits a loose, latitudinous, discretionary construction of the organic law. “We are taught by the Constitution itself that those who administer this government are divided into three co-ordinate departments; each of these can only act within its own limited sphere, and they, respectively, are the servants of the sovereign power, the people. There is no power above the people. There is no discretionary power granted in
And here we deem it proper to again use the language of Judge Cooley. He says: “Whatever constitutional provision can be looked upon as directory merely, is very likely to be treated by the Legislature as if it was devoid of even moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so is conceded; that it is so, we have abundant reason and good authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregards it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law, so great is that which is done, by' the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.” (Const. Lim., p. 183.)
Upon the weight of authority, and, to our minds, upon the soundest of reasons, we conclude that the provision of the Constitution under consideration, and all other provisions of our Constitution, are mandatory and can in no case be regarded as directory merely, to be obeyed or not within the discretion of either, or all of the departments united, of the government.
We will next consider whether, and to what extent, the courts may inquire into and determine the validity of a statute which upon its face purports to be a valid law, but which is attacked as invalid because the Legislature, in enacting it, did not conform to the requirements of the Constitution. Upon this subject, also, there is much contrariety and conflict of authority. Judge Cooley says: “Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals
In the instance we are considering the Constitution expressly requires that the journals shall show the fact of the signing of the bill by the presiding officer of each house, etc. This is an imperative requirement and as plain as the English language could make it. As we understand the rule stated in the quotation just made the fact of such signing of the bill must appear from the journals. Such fact can not be presumed, or established by any other evidence, while the journals are in existence, because the Constitution expressly requires the journals to show the fact, and thereby, as long as said journals exist, makes them the best, the only and the conclusive evidence of the fact. If there was not an express requirement that the journals should show the fact of signing, then the mere silence of the journals as to such signing would not affect the validity of the statute, because in such case the legal presumption would prevail that the bill had been signed in the manner required.
The distinction between cases in which the law will presume that all the requirements of the Constitution have been observed in the enactment of a statute, and those in which such presumption can not be entertained, is very clearly stated by Judge Stone in Perry v. Railroad Company, 58 Alabama, 546, as follows: “We think the only safe rule for interpreting clauses of the Constitution which command certain things to be done, or certain methods to be observed in the enactment of statutes, is to hold that when it is affirmatively shown by legal evidence that, in the attempt to legislate, some mandate of the Constitution has been disregarded, such attempt never becomes a law. We do not mean to be understood as affirming that in all cases the silence of the journal proves some constitutional requirement
The same able court, through the same judge, in a previous case in which the constitutionality of a statute was assailed upon the ground that the yeas and nays upon its passage had not been entered upon the journals as required by the Constitution, used the following language: “The inquiry naturally presents itself, what intendments, if any, are to be indulged for or against the constitutionality of legislative enactments? On the question of the yeas and nays required to be spread on the journal, there can be no reasonable ground for doubt. The journal is the record which the Legislature keeps, and is required to keep, of its proceedings. Like all other records required by law to be kept, it imports verity. Taking into account the character of the body whose record it is, a co-ordinate department of the government, we hold that it imports absolute, indisputable verity. The Constitution, then, requiring that the yeas and nays shall be matter of record, no other evidence can be received of this requirement, nor can its want be supplied by intendment. Of this fact the record (journal) must speak, and, if silent, the fact in legal contemplation does not exist.” (State v. Buckley, 54 Ala., 599" court="Ala." date_filed="1875-12-15" href="https://app.midpage.ai/document/state-ex-rel-attorney-general-v-buckley-6509325?utm_source=webapp" opinion_id="6509325">54 Ala., 599.)
In Spangler v. Jacoby, 14 Ill., 297" court="Ill." date_filed="1853-06-15" href="https://app.midpage.ai/document/spangler-v-jacoby-6947953?utm_source=webapp" opinion_id="6947953">14 Ill., 297, it is said: “In our opinion it is clearly competent to show from the journals of either branch of the Legislature that a particular act was not passed in the mode prescribed by the Constitution, and thus defeat its operation altogether. The Constitution requires each house to keep a journal, and declares that certain facts, made essential to the passage of a law, shall be stated therein. If those facts are not set forth, the conclusion is that they did not transpire. The journal is made up under the immediate direction of the house, and is presumed to contain a full and complete history of its proceedings. If a certain act received the constitutional assent of the body, it will so appear on the face of its journal. And, when a contest arises as to whether the act was thus passed, the journal may be appealed to to settle it. It is the evi
We could quote from many other authorities to the same effect, but it would not be profitable to do so. We conclude that the weight of authority is with the text and decisions we have quoted, and that, in a case like the one before us, where the constitution expressly requires, in the enactment of a statute, that certain facts shall be entered upon the journals, the courts will look behind the statute to the journals, and ascertain if such entry was made; and if the journals fail to show affirmatively that such entry was made, the statute will be held void.
This conclusion is in opposition to the views expressed by our Supreme Court in Blessing v. City of Galveston, 42 Tex., 641" court="Tex." date_filed="1874-07-01" href="https://app.midpage.ai/document/blessing-v-city-of-galveston-4892411?utm_source=webapp" opinion_id="4892411">42 Texas, 641, and to views of this court as expressed in Usener v. The State, 8 Texas Court of Appeals 177. In both the cases named the conclusion seems to be that the courts will not look behind a statute which upon its face is valid, which has been signed by the proper officers of each house, approved by the Governor, and filed in the office of the Secretary of State, to ascertain whether or not the statute was enacted in conformity with the requirements of the Constitution, but will conclusively presume that all the requirements of the Constitution with regard to the passage of the statute were observed and obeyed. In support of this view, in the Blessing case but one authority is cited, that being Miller v. The State, 3 Ohio State, 483, which opinion, as we have already observed, is not only obiter, but is at variance with the great weight of authority.
In Usener’s case, supra, the Blessing case is cited in-support of the opinion; also Panghorn v. Young, 32 New Jersey, Law, 29; The State v. Swift, 10 Nevada, 176; Sherman v. Story, 30 California, 253, and Miller v. The State, 3 Ohio State, 483. The opinion in the Usener case is obiter, the court holding that in
We hold, therefore, that we may and should look, behind the enrolled act, to the journals of the houses, and inquire whether or not this provision of the constitution has been obeyed in the enactment of the statute. Finding that it has not been obeyed, we hold that the act of March 19, 1885, amendatory of Article 358, of the Penal Code, never became a law, and is void. This being the case, these convictions must be set aside. Article 358, of the Penal Code, is in no way affected by said act, but is still in full force and effect, and the punishment therein prescribed for the offense of which defendants have been convicted may, upon trials of these cases hereafter had, be meted out to these alleged offenders.
The judgments are reversed and the causes are remanded for new trials. Reversed and Remanded.