97 N.Y.S. 336 | N.Y. App. Div. | 1905
The tax purports to be authorized by chapter 41 of the Laws of 1903,
The precise claim of the. appellants is that the .constitutional three-' fifths quorum was not present in either house when the amendment of 1903 was. passed. '■ This stand is not taken upon the facts, but it is contended- that the condition of the statutory la,w with respect to .the certification and publication of bills is such that Upon the certificates originally attached to this- bill by the presiding officer of the . Senate and Assembly,- respectively, a conclusive presumption arises
The original certificates to which we are confined, like the certificate of the Secretary of State printed in the Session Laws, fail to show, as has been seen, that the constitutional three-fifths quorum was present in eabli house when the bill was passed, and it must fail unless recourse may be had to the journals of the respective houses. Section 40 of the Legislative Law (as amd. by Laws of 1894, chap. 53) is as follows: “ Certificate of presiding officer.— Upon the passage of a bill or concurrent resolution by either house, the presiding officer thereof shall append to such hill or resolution, a certificate of the date of its passage by the votes of a majority of all the members elected to such house., or in the presence of three-fifths of such members, if such be the case, or by the votes of two-thirds of all the members elected to such house, as the case may be. Ho bills shall be deemed to have so passed unless certified by the
The, learned qouñsel for the appellant contends that the Legislature, acting within its province to prescribe rules of evidence, has, b)r this statute, prescribed a concl/usive• rule of evidence'for determining whether a bill has.been passed by.the requisite vote and with the requisite quorum present; Literally construed, this statute 'provides that nó bill requiring the presence of three-fifths of the members elected'to each house shall he deemed to have passed in the presence of such quorum! unless the presiding officer appends a - certificate thereto to that effect and if. he does so certify that shall be conclusive, even though it he untrue either through mistake or design. There is a Conflict in judicial decisions, leaving the law in a doubtful and Unsettled state as to whether and when resort may be had to the journals, of the respective houses to show by what vote a bill was passed and the number of members present. I think this is largely owing to a failure to distinguish between the power of the Legislature to enact rules of evidence in general, where it is unrestricted by the Constitution,, and its power to enact rules of evidence with respect to the proving the enactment .of statutes where the Com , stitution itself prescribes how the vote shall be taken, how the number of members present shall be shoWn,'and how the récord thereof shall be made and preserved. Section 11 of.árticle 3 of the; State Constitution requires that each house shall keep a journal of-its meetings. Section 25 of article 3 of the State Constitution provides' that: “ On the, final passage, in either house of the Legislature,' of any act which imposes, continues or revives a tax, or creates a debt or charge; or makes,, continues or revives any. appropriation of public or trust.money or. property, or releases, discharges or commutes any claim or demand of the State, the question shall he taken by yeas and nays, which shall be duly entered upon the journals,, and three^ fifths of all the members elected to either, house shall, in all. such cases, be necessary to constitute a quorum therein.” There is much force in the contention that these constitutional provisions constitute the journals tlie original evidence of . the vote and quorum-present on the passage of bills and were designed to afford’ -definite and conclusive evidence of those facts. (Cooley Const. .Lim. .[Tth ed,] 201.)- The journals are kept under the direction of the"respec
It follows that the order should be affirmed, with ten dollars costs and disbursements.
O’Brien, P. J., Patterson, ■ Ingraham and Clarke, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
Amdg. Tax Law (Laws of 1896,. chap. 908), § 221.— [Rep.