99 Ky. 80 | Ky. Ct. App. | 1896
delivered the opinion oe th'e court.
Pursuant to the prolusions of wbat is known as the “local option” law of August 4,1892, a vote in the town of Berry, in Harrison county, was taken on January 31, 1894, and resulted in favor of the sale of spirituous, vinous and malt liquors.
When the county judge was about to direct the certificate of the election officers to be entered of record, and the trustees of the toivn were accordingly about to grant licenses, the appellees, certain citizens of the town, instituted this
The chief point relied on in the petition for injunction is that thé law under which the election was held was not enacted by the General Assembly in the manner required by the Constitution; the allegation on that behalf being, in effect, that, on the final passage in the Senate of the bill, as amended in the other House, the vote was not taken by yeas and nays and entered in the journal as required by section 46 of the Constitution.
A consideration of other points relied on will be deferred until after disposition of the principal question.
It is conceded that the bill, properly enrolled, was signed by the presiding officer of each of the two Houses, and signed and approved by the governor.
The question is, can a law thus promulgated be impeached by reference to the journals of either House?
Different answers have been given to this inquiry in various courts of last resort in this country, but in this State it remains substantially unanswered; for whatever may be said of the argument of the question in the World’s Fair Case (Norman, auditor v. The Kentucky Board, &c., 93 Ky., 537), we are not to take the case as decisive of that which it expressly disclaims to decide. After a discussion tending, it may be admitted, to the conclusion that such an impeachment might be had, the majority opinion yet determines it to be unnecessary to decide the question, and the plaintiffs seeking to recover under a law sought to be so impeached were there denied relief on grounds not pertinent to this' inquiry.
It is to be observed, at the outset, that this is not a case where'the enrolled bill is supposed to be in anywise different
It is not a dispute over contents. Such a question is presented in many of the cases. Thus in Field v. Clark, 143 U. S., 649 (1891), the allegation was that a section of the bill, as it actually passed, was not in the enrolled bill as authenticated by the signatures of the presiding officers, and deposited with the Secretary of State. And so in State v. Town Council of Chester, 39 S. C., 307 (1893), the contention was that the original bill, which was sent from the Senate to the other Plouse, was altered by the Speaker of the House of Representatives at the time or after it passed that House, and amended as he saw fit, when the journals of the House showed no such alterations.
These cases, and we note them here as samples of many others to the same effect, hold that the official attestation of the presiding officers of the legislative bodies and of the executive are conclusive that an act so authenticated is the very act passed by the body, and leave undetermined, in express terms at least, the further question whether an act may be impeached if the journals fail to show that which the Constitution expressly requires them to show; such as that the bill was passed by a yea and nay vote.
An examination of these cases, however, shows that the argument against the use of the journals to show that the bill was not the same as that actually adopted is quite conclusive against their use to show the absence of the steps contemplated by the organic law.
And we may observe in this connection, it would be strange if it were otherwise; for why should the journals, if deemed capable of shedding light on any question touching the bill, be rejected as evidence affecting the substance (the
Indeed, does there not seem to be stronger reasons for seizing hold of the journals to expose the fraud of promulgating as valid a law which had in fact never passed at all, than for using them to undermine a law because of flaws in the steps taken during its passage?
Manifestly, therefore, the case of Field v. Clark, and the numerous decisions of the State courts, which have gone to the extent, and no further, because the particular case did not demand it, of holding the journals incompetent to declare the enrolled bill not to be the very one adopted by the legislative body, must be classed with a few exceptions, along with the authorities holding that the verity of the enrolled bill, when duly certified and authenticated by the presiding officers, is absolute and conclusive.
So construing these cases, it becomes palpable that the overwhelming weight of authority is against the impeachment of the enrolled bill by the journals whether in a matter affecting the contents of the bill, or merely the regularity of the steps taken in its passage.
When we look to the argument, much may be said on either side of the question, and we shall content ourselves with suggesting only a few of the controlling reasons for our opinion.
In the first place, no court can begin its scrutiny of the manner in which the legislative department may have performed the details of its work, as shown by its daily journals, without a sense of assumed superiority, or without seeming to arrogate to itself a supervisory power wholly inconsistent with the fundamental truth that the departments
The judiciary, at every step of itsi investigation into the journals of a legislative body, must find itself confronted with the embarrassing question, how is it that the courts have come to be the exclusive guardians of those mandatory provisions of the Constitution which direct the legislature only how to transact its business?
The answer must be more embarrassing because such a thing can not be except on the assumption that the courts must regard themselves as alone competent for such oversight.
It- is to be admitted that unless the constitutional mandate is followed “no bill can become a law.” The Constitution so says. But the question remains, what shall be taken by the courts as the basis of judicial knowledge? Must they look to the journals and accept as conclusive the hasty memoranda of the clerk or his assistant, or shall they assume that the legislature obeyed the Constitution and accept as conclusive the certifications of its presiding officers?
That the act or successive acts of some agency somewhere or somehow must be held conclusive is entirely evident, unless we open the doors to all competent proof, including that of the member on the floor, an absurdity not to be thought of. The result is we must accept as conclusive either the entries of the clerk in the journals or the more deliberate acts of the presiding officers.
Gan it be said that a statute has not become a law if the journals show it was not reported by a committee or printed for the use of the members, or read at length on three different days, or was signed by the presiding officer without a suspension of all other business, and when no entry appears in the journals noting such signature? At least some of these steps are especially required to be entered in the jour: nal, and nearly all of them ought to appear there if the
In some of the courts, where the journals are held to be competent evidence to impeach the enrolled bill, it is said that where those records are merely silent the presumption is absolute that the required steps were in fact taken. This seems to us hardly logical. If the validity of a law is to rest at all on the entries in the journals, it seems to us when there is a total absence of evidence that a necessary step has been taken,the superstructure — the law — thus built up without a foundation must fall.
Those courts assume that the failure of the cleric to make the entry and in this violate the Constitution requiring the entry to be made was an oversight or mistake, and treat the entry as made, supplying the omission, and yet are not willing to assume it to be a mistake or mere misapprehension of the inferior officer, if an entry is made, showing steps taken notin conformity with the constitutional requirements.
Even if resort is had to the journals it would seem as consistent to overlook the sins of commission by the clerk and treat his entry showing a violation of ihe Constitution as not true as to overlook his sins of omission and supply the defects in his record. To avoid the necessity of resorting to these fine-spun distinctions we are convinced that the consistent and safe rule is to assume that the legislature, in obedience to the Constitution, has taken the steps required by that instrument in the passage of every law, attested by the signatures of its presiding officers, the journals to the contrary notwithstanding.
The enrolled bill, so attested and signed and approved by the Executive, is easy of access and inspection, but what shall we say of the journals? At the session at which the
But it is said, since the Constitution requires the journals to be kept, it must be because they are to be used as evidence of legislative compliance or noncompliance with the constitutional requirements. We can see, however, much use for these journals other than the one suggested. Besides being necessary for the conduct of the business, it is to be remembered that our government is a representative one, and the journals show the respective parts borne by each representative in the enactment of the laws and the conduct of the
In after years the careless omission of a name on the affirmative side of a law, requiring a certain number of votes is made the basis of a judicial finding that the law has not been enacted by a constitutional majority.
This feature is well put in the recent case of State ex rel Reed v. Jones Co., 6 Washington, 468 (1893), where it is said: “Unless the method of keeping journals should at once be revolutionized, and so much attention be paid to them that they will be made to absolutely represent all the doings of the body to such an extent as to very much prolong the sessions of the legislature, the sanctity of legislative enactments will be entirely dependent upon the carefulness and good faith of some copyist employed by the legislature at a few dollars a day.”
The same point is thus stated by Justice Harlan in Field
It is said, however, that such a conclusion results in leaving the legislative department free to nullify the plain provisions of the Constitution, and refuse to comply with the formalities required by that instrument in the enactment of the laws. If this is true it does not follow that the courts may interfere with the processes of the legislature in that respect. If that department fails or refuses to do the bidding of the Constitution it is responsible to the people and not to the courts. Besides, an assumption that it will so fail or refuse is not to be made the basis of judicial action. To the argument that if the authenticated roll is conclusive upon the courts, then less than a quorum of each House may, by the aid of corrupt presiding officers, impose laws upon the State in defiance of the inhibition of the Constitution, the Supreme Court of Indiana, in Evans v. Brown, 30 Ind., 514, responded thus: “It must be admitted that the consequence stated would be possible. Public authority and political power must of necessity be confided to officers, who, being human, may violate the trusts reposed in them. This, perhaps, can not be avoided absolutely, but it applies also to all human agencies. It is not fit that the judiciary
From every point of reason, therefore, we are convinced that the enrolled bill, when attested by the presiding officers as the law requires, must be accepted by the courts as the very bill adopted by the legislature, and that its mode of enactment was in conformity to all constitutional requirements. When so authenticated it imports absolute verity and is unimpeachable by the journals.
When we look to the authorities we find, as indicated before, a great diversity of opinion. They are too numerous to be reviewed here. We notice, however, that the more recent cases are adopting the English rule, and holding the enrolled bill conclusive. In several of the cases where the courts felt constrained to follow their former rulings, hold
In the recent case of Carr v. Coke, 116, N. C., 223 (1895), the question was considered as one of new impression in that State, and, after what seems to us a verj^ satisfactory course of reasoning and a review of the principal authorities, the conclusion was reached that “when the legislature has solemnly certified to a fact, that is to the passage and ratification of an act which is within its own sphere,” the judiciary will not be permitted “to inquire into or dispute that certification.”
To the same effect is the case of Hardee v. Wentworth, 42 Pacific Rep., 1028 (Arizona, 189). The opinion in this caséis well considered, and the doctrine restated on principle and authority. See also the recent cases of Lyons v. Woods, 153 U. S., 649; State v. Nye, 42 Pacific Rep., 856 (Nev.); Hunt v. Wright, 70 Miss., 298; Hollingsworth v. Thompson, 12 Southern Rep., 4; 45 L. A., 222; State v. Boyce, 40 N. E. R., 113 (Ind.), and Western Union Telegraph Co. v. Taggart, 40 N. E. R., 1051.
The older authorities are found collected in the notes to Field v. Clark, and the Washington & North Carolina cases cited, and need hot be further discussed.
Regarding, therefore, the act of August, 1892, as constitutionally enacted, it is yet insisted by the appellees that as prior to January 31,1894, when the vote in the town of Berry was taken, a special prohibitory law (1884) was in force in the magisterial precinct that included the town; therefore,
The case of King, &c., v. Commonwealth, 86 Ky., 436, is relied on to support this contention. But in that case the right claimed by the town to take a separate vote was confessedly derived from the same law which conferred a similar right on the precinct which included the town. The power given each subdivision was from the same source, and was simultaneously conferred. Hence the conclusion was reached that no greater but equal power was conferred on each, and when the whole acted under the general law the part could not undo what it had done. But here we have a new political division created and new powers conferred. A complete separate entity is erected by a new charter of the town of Berry, and the trustees thereof given exclusive control of the question at hand except they can not grant license when forbidden by a previous law until the law is changed. And as showing that such a change might be had and how, we have only to quote a provision of the charter on that subject, adopted in July, 1893, to-wit: “That in any town of the sixth class, in which the question as to whether spirituous, vinous and malt liquors might or should be sold shall hereafter be submitted to the voters thereof, and the majority of votes cast thereat shall be in favor of the sale of such liquors therein, then the said board of trustees of such town shall have no right, power, privilege or discretion to refuse to grant licenses to sell such liquors therein, until another election is held therein, as provided by general laws, and a majority of the voters of said town have voted against the sale of such liquors.” (Subsection 4, section 3704, Kentucky Statutes.)
Of course the same precinct in which the vote was originally taken can never have another vote taken. It is well known that both the magisterial and voting precincts of 1881 have long since been obliterated and new ones erected (Kentucky Statutes,sections 1078, 1143), and it is even doubtful if a special act of the Legislature could be constitutionally enacted, as where a general law can be made applicable a special one shall not be enacted.
Nor do we find any difficulty in determining the appellants to have been the trustees of the town of Berry at the time of the institution of this suit. They had been regularly elected under the old charter for one year from April, 1893, and while section 167 of the Constitution provided for a termination of their offices at the November election, 1893, it provided that the old officers should yet hold until their successors should be elected and qualified.
In the Wilson-Johnson case, 95 Ky., 415, the successor of the old officer wms in fact elected at the November election, 1893, and the old officer was not entitled to hold thereafter. In answer to his contention that he might so hold over, we said: “It is true he was to hold until the general election in November, 1893, and until his successor was elected and qualified, but this is the usual, method provided to prevent a vacancy, when from some unforeseen circumstance no election has been held at the regular time,
Here there was no election held in the town of Berry in November, 1898, and under the express terms of the Constitution the appellants were entitled to hold over, and were, therefore, not usurpers, as contended by appellees. The act of March, 1894 (section 3672, Kentucky Statutes), was passed to cure.any possible doubt of the legality of the acting trustees of towns of the sixth class, arising out of the failure of many of those towns to elect trustees in November, 1893, and was not enacted, as contended by counsel, in recognition of the alleged fact that there wrere vacancies in those offices, or that the acts of the hold-overs were void. Such a legislative declaration, if made, would have been inoperative as an unauthorized interference with the functions of the judiciary in the exercise of its exclusive right to construe and interpret the laws.
We conclude, therefore, that upon none of the grounds relied on are the appellees entitled to the relief granted by the perpetuation of the injunction, and the judgment below is reversed with directions to dismiss the petition.