28 Kan. 243 | Kan. | 1882
The opinion of the court was delivered by
The question in this case is, whether the conviction and sentence of the petitioner, Franklin Vanderberg, in the district court of Ellis county at the April term for 1882, were absolutely void. It is alleged on the part of the petitioner that there is not, and never was, any seven
First, that chapter 100, Laws of 1881, entitled “An act to create the seventeenth judicial court to provide a judge therefor, and for holding terms of court therein,” cannot be regarded as a legislative act enforcible by the courts, because it is claimed on the part of the petitioner that the act on its final passage by the house of representatives did not receive the votes of two-thirds of the members thereof, as ordained by the constitution of the state to be necessary to increase the number of judicial districts. (Sec. 14, art. 3, State Const.)
Second, that chapter 98, Laws of 1881, providing for terms of court in the fourteenth judicial district, designates that court shall be held in the county of Ellis on the fourth Monday of March and the last Monday of September in each year, and is therefore in conflict with chapter 100, Laws of 1881, creating the seventeenth judicial district and naming Ellis county as a part thereof, and fixing the time for the holding of courts therein on the fourth Monday of April and the third Monday of October of each year.
If we accept the enrolled statute embodying the act now challenged by the petitioner as conclusive evidence of thet regularity of the passage of the act and of its validity — as
“In this state, where each house is required by the constitution to keep and publish a journal of its proceedings, we cannot wholly ignore such journals as evidence, and therefore, when there can be no room for doubt from the evidence furnished by such journals, that the statute was not passed by a constitutional majority of the members of either house, then the courts may declare that the supposed statute was not legally passed, and is invalid.”
This language of the opinion is qualified, however, as follows:
“ The enrolled statute is very strong presumptive evidence of the regularity of the passage of the act and of its validity, and it is conclusive evidence of such regularity and validity, unless the journals of the legislature show clearly, conclusively and beyond all doubt that the act was not passed regularly and legally. If there is any room to doubt as to what the journals of the legislature show; if they are merely silent or ambiguous; or, if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.”
In view of these decisions of our court, we have examined with great care the original house journal of 1881, to ascertain if it establishes “clearly, conclusively, and beyond all doubt,” that chapter 100 was not regularly add legally passed. The house of representatives of the state for 1881 consisted apparently of one hundred and thirty-seven persons. At
One thing further as to the conflict between chapter 98 and chapter 100. Both acts were approved March 5, 1881. It is contended on the part of counsel of the petitioner, that chapter 98 is the last expression of the legislative will. Even if this were true, the insertion of Ellis county in chapter 98 was evidently an inadvertence. Chapter 100 created the seventeenth judicial district, and mentions Ellis county as comprising a part thereof. It further provides for the holding of two terms of court in the county for each year. Chapter 98 provides for the terms of the court in the fourteenth judicial district, another and a different district than that in which Ellis county had’been located by chapter 100. If it clearly appears from all the sources of interpretation that a provision of a statute has been inserted through inadvertence, it will 'be disregarded. (Pond v. Maddox, 38 Cal. 572.
We must, therefore, upon this doctrine, disregard the provision relating to Ellis county in chapter 98. Of course, if chapter 100 were the last enactment of the legislature, it would be valid and binding in all of its terms, notwithstanding the provisions of chapter 98, even if none of the provisions thereof had been inserted by inadvertence.
Several other questions have been fully and elaborately presented upon the hearing of this case, but the conclusion obtained makes it unnecessary to consider them.
Nothing appearing before us -upon the record or evidence presented, warranting any judgment annulling the conviction of the petitioner, he must be remanded into custody.