Hunt v. Wright

70 Miss. 298 | Miss. | 1892

Campbell, C. J.,

delivered the opinion of the court.

This case presents the question whether chapters 37 and 108 of the code of 1892 are in force. One is the “dram-shop” chapter, and the other is entitled “privilege taxes.” It is admitted that an act to adopt and make of force the code was duly passed and approved on April 2,1892, -which declared the-above-mentioned chapters in force, but the claim is that this was ineffectual, because the chapters were adopted by their titles only, and without their contents being set forth, and because of divers specific objections, having reference to the method of procedure by the legislature in dealing with the-several chapters constituting the code; and that these particular chapters were passed within the last five days of the session, and did not receive three-fifths of the votes of the members of each house voting; that there is no enrolled bill in existence containing any part of said chapters, nor any such bill signed by the presiding officers of the two houses and the governor, and authenticated as the constitution requires; that there is doubt and uncertainty as to what is the code adopted, and material variance in certain particulars between two authorized versions of it, but it is not alleged that these-versions differ as to the two chapters mentioned.

Most of the objections urged by appellant are fully met by the decision of this court in Ex parte Wren, 63 Miss., 512, in which it was declared that the legislature, as a co-ordinate department of the state government, invested by the constitution with legislative power, is not subject to supervision and revision by the courts as to those rules of procedure prescribed by the constitution for its observance, because, while those rules are all authoritative and mandatory to legislators, who are sworn to note and observe them, they exhaust themselves upon legislators, and are not for the consideration . of courts, which cannot explore legislative journals to see if all the directions of the constitution were observed, but must accept as legislative enactments, duly passed as prescribed by the constitution, all such acts as are duly authenticated as ¡__such in the mode prescribed by it. The opinion of the court in that case contains a full presentation of our views on the important question discussed, and with1 its reasoning and conclusion we are still content. It seems, too, that the constitutional convention of 1890 adopted those views, for all of the provisions of the constitution of 1869 with reference to which that case was decided, weré re-adopted as part of the "constitution of 1890, without any indication of purpose to introduce a new rule on this important subject; and, while the new constitution contains new provisions restrictive of legislative power, and designed to guard against evils in legislative proceedings, there is nothing to suggest that the courts are to pry into the record of the proceedings of the legislature to ascertain if it regarded rules prescribed for its observance while about its business. So far as the new constitution contains the provisions of the old, it must be held to have adopted with them the view of this court with reference to them as announced in the case mentioned.

The question is: Ho the new provisions alter the rule heretofore announced ? Those relied on are all the sections from number sixty to seventy-one inclusive. • Those particularly mentioned as supporting the claim of appellant are section 60, which declares that “ no law shall be passed, except by bill;” section 61, “No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length; ” section 68, “Appropriation and revenue bills shall, etc., . . . and no such bills shall be passed during the last five days of the session;” section 70, “No revenue bill shall become a law, except by a vote of at least' three-fifths of the members of each house present and voting; ” section 71, “ Every bill shall have a title, and the title ought to indicate clearly the subject-matter,.” etc.

All the provisions, old and new, relating to this matter, are contained in article 4 of the constitution of 1890. That article is headed “ Legislative Department,” and is subdivided with a heading to each subdivision. Among these is found, “Rules of Procedure,” and under this subdivision is grouped sections 54 to 77, inclusive, including all from which it is contended that the code chapters must be pronounced invalid as having not been adopted. Among these provisions are certainly some that are not mere rules of procedure addressed to and ending with the members of the legislature. An example of this is found in section 61: “No law shall be revived or amended by its title only,” etc. An act of the legislature disregarding this, would be disregarded by the courts. That would present the question of the validity of a completed enactment. Another example is section 63: “No appropriation .bill shall be passed . . . which does not fix definitely the maximum sum thereby authorized to-be drawn from the treasury.” Another is section 64: “No bill ... to make appropriations . . . out of the state treasury shall continue in force more than six months after,” etc. Section 75 is: “No law of a general nature, unless therein otherwise provided, shall be enforced until sixty days after its passage.” These provisions pertain to the operation of acts of1 the legislature, passed with due regard to all the requirements of the constitution, and would seem to be out of place among rules of procedure. With those matters courts must deal, but their duty as to them, as in all other cases, commences after the termination of legislative action. Then the duty of the judicial department^ begins. It is not an overseer of the legislature during its1 labors, but it takes its completed work and tries it by the constitution, starting with the conclusive and .irrebuttable presumption, that, as to all the requirements of that instrument, they who swore to observe it, did so. Every act which bears on its face evidence of disregard of the constitution, invites, and must receive, the condemnation of all w.ho are called on to deal with it, and that is the test.

The adoption of the code by the act of April 2,1892, was not invalid, as prohibited by section 61, which says: “No law shall be revived or amended by its title only,” etc. This section is aimed at a well-known evil in legislation. But, adopting and declaring of force the code, or certain chapters of it, was not reviving or amending within the meaning of this section. Besides, it appears that the matter of the code was inserted at length and considered in extenso. The code does not amend or revive any law by reference to its title only. Nearly all of the code, excluding new subjects, was law before, in the very form in -which it reproduces it, and would have continued in full foi’ce, if the code of 1892 had not been adopted; and, wherein. former laws are amended by it, it was competent to' adopt it by an act referring to it as an existing thing. This was not reviving or amending laws by reference to title only, in the meaning of section 61, which has no application to adopting a code or piarts 0f 0ne, but to the ordinary case of reviving or amending a law in the strict sense of these terms. All familiar with the subject know the particular evil intended to be corrected by this provision, and it is plain that the prohibition does not embrace the case we are now considering, for it is not within the evil, and, therefore, not within the remedy.

The declaration of section 68 that no appropnation or revenue bill shall be passed during the last five days of the session, has reference to being passed by the legislature, and does not refer to approval by the governor. The two houses pass bills. The governor approves, and he may approve at any time when the legislature is in session. While the provision of section 68 is obligatory on the legislature, its disregard of it is beyond the reach of courts, which are not keepers of the consciences of legislators, and deal only with what they do, and not what they should have done or omitted. We would not be understood as holding that the “dram-shop ” law is a revenue bill or law, but, if it was, it would not be affected by what is alleged as to when it was’passed. The fact that it was passed within the last five days of the session, and did not receive three-fifths of the votes of members voting, if it be a fact, is not a matter of which courts will take cognizance.

If members of the legislature violate their oaths by disregarding the plain directions of the constitution, the courts are powerless to redress the wrong, except as to matters apparent in their finished action. The constitution, as to mere rules of procedure prescribed for the legislature, is committed to the members individually and collectively, and the houses are intended as a mutual check, and the governor on both, and courts will not inquire into the antecedents of legislative enactments, and have no claim to be present at the parturition. Their duty begins when legislative travail is over.

That there is no enrolled bill on “dram-shops” and “privilege taxes” makes no difference, since, none such is required by the constitution, which has nothing about enrolled or engrossed bills. It is undeniable that there is an enactment adopting and putting in force as a code certain printed or written chapters. That enactment has all the forms and requirements of law as prescribed by the constitution, and all is made larv by it which it could and does declare to be.

A bill is a written or printed draft of a proposed law. The constitution, without defining, says, “ Bills may originate in either house,” etc., and has various provisions for dealing with them (section 59); and in section 60 says, “No law shall be passed except by bill ” — i. e., except by conforming to the preceding requirements as to passing bills.

It is true that journals are required to be kept, and yeas and nays are to be entered on them as provided, but that is not that courts majr scrutinize the daily doings of the legislature. The purpose is widely different. The houses have complete control of their journals, both as to what they shall contain and their publication, which shows that matters of mere procedure are committed to the keeping of legislators, all of whom 'are bound by a most solemn oath to observe and maintain the constitution in all its provisions; and, in order to insure familiarity with the instrument thus committed to their charge, each member is required, on qualifying, to swear that he will, soon after being sworn as a member, “ carefully read (or have read to ,him.) the constitution, and will endeavor to note, and as a legislator to execute, all the requirements thereof imposed on the legislature.”

We have already said that the adoption of the chapters by reference and description as existing is not within the prohibition of section 61, and therefore they-became law as declared.

Questions- may arise as to what was embraced in the adopting act. The identity and authenticity of what is alleged to be the text of the code may arise, and perhaps present difficulty when they arise, but it is not claimed that there is any doubt or uncertainty as to the “dram-shop ” law or that on the subject of “privilege taxes” and auy other does not concern the appellant, and cannot avail him in this appeal. It is for the courts, as questions arise, to ascertain what is the law. The printed code is evidence, but it is not the best evidence. Eesort will be made to the “duplicate ” described in the act of April 2, 1892, adopting the code, in the office of the secretary of state, in case of alleged inaccuracy as to the text of the printed code. If, in any case, it shall be found that the “duplicates ” mentioned by the adopting act do not, agree, it will be time then to consider the effect of the discrepancy. “ Sufficient unto the day is the evil thereof.” None of the objections made to the chapters of the code under consideration are valid, and all combined are ineffectual.

Affirmed.