McDonald v. State

80 Wis. 407 | Wis. | 1891

The following opinion, was filed October 20, 1891:

LyoN, J.

When return was - made to the first writ of error herein, a bill of exceptions had been regularly settled and signed by the judge. It was therefore a part of the record at that time. E. S. sec. 2873. It is immaterial that the clerk had omitted to indorse the same “ Piled.” If it contained exceptions which the plaintiffs in error desired this court to pass upon, they should have had it returned on the first writ as a part of the record. In contemplation of law, the whole record was before this court on the first writ, and all the rulings of the circuit court on the trial were approved by this court, down to the erroneous sentences. Such is the necessary effect of the judgment of this court directing the circuit court to resentence the plaintiffs in error without another trial. Hence the judgment of this court on the first writ is necessarily res adjudi-cateof all questions arising upon the record previous to the first sentence, and brings the. case within the principle that successive writs of error cannot be brought upon the same judgment. In Zimmerman v. Turner, 24 Wis. 483, the court went further, and held that “ when on a writ of error the judgment has been affirmed, plaintiffs in error cannot have a new bill of exceptions settled so as to present a question not presented by the former, and sue out a new writ.”

It is claimed that the case of Benedict v. State, 12 Wis. 313, and 14 Wis. 423, establishes a different rule. That case, like this, was in this court on two successive writs of error. Here the analogy between the two cases ceases. On the first writ the court held that no judgment had been rendered. So it reversed nothing, but simply directed the circuit court to pronounce judgment, which was accordingly done. Then a bill of exceptions was settled and signed, and another writ of error sued out. There was but one judgment, and, as a matter of course, all exceptions taken during the progress of the cause, and preserved in the bill of exceptions, were before the court for review, and were reviewed. They could not have been properly reviewed on the first writ, because there was then no judgment. If there is any ground for criticising that case, it is that the court, on writ of error, finding no judgment, awarded a procedendo. This practice seems to rest upon the necessity of the case, and English authorities are cited in the opinion by Dixon, C. J., justifying it.

We therefore decline to determine, on this writ of error, the exceptions taken before the first judgment was pronounced. We do this with less hesitation for the reason that the argument has failed to convince us that any material error occurred during the trial.

After the cause was remanded, and before the last judgment and sentences were pronounced, the plaintiffs in error severally moved the court to arrest the judgment and for a new trial. These motions were made upon two grounds. The first of these is that ch. 488, Laws of 1887, purporting to create the fifteenth judicial circuit, is not a valid law, and hence that there is no such circuit, and Judge Paeish, who was elected under that statute, is not the judge of the cir- ' cuit court of Ashland county de jure or defacto. The validity of ch. 488 is challenged on two general grounds. These are: (1) That the two houses of the legislature, in attempting to enact that chapter, violated their own rules of procedure in several particulars; and (2) that the yeas and nays were not called on the passage of the bill and entered on the journals of the respective houses.

The courts will take judicial notice of the statute laws of the state, and to this end they will take like notice of the contents of the journals of the two houses of the legislature far enough to determine whether an act published as a law was actually passed by the respective houses in accordance with constitutional requirements. Further than this the courts will not go. When it appears that an act was so passed, no inquiry will be permitted to ascertain whether the two houses have or have not complied strictly with their own rules in their procedure upon the bill, intermediate its introduction and final passage. The presumption is conclusive that they have done so. We-think no court has ever declared an act of the legislature void for non-compliance with the rules of procedure made by itself, or the respective branches thereof, and which it or they may change or suspend at will. If there are any such adjudications, we decline to follow them.

The journals of the senate and assembly of 1887 show that ch. 488 was passed in both houses in the usual manner, but it does not appear that the yeas and nays were called on its passage in the assembly. At least, they are not entered on the journal. The bill for ch. 488 was therefore regularly passed, and the chapter is a valid law, unless it comes within the provisions of sec. 8, art. YIII, of the constitution. The section is as follows: “ On the passage in either house of the legislature of any law which imposes, continues, or renews a tax, or creates a debt or charge, or makes, continues, or renews an appropriation of public or trust money, or releases, discharges, or commutes a claim or demand of' the state, the question shall be taken by yeas and nays, which shall be duly entered on the journal; and three fifths of all the members elected to such house shall, in all such cases, be required to constitute a quorum therein.

If ch. 488 is within the above provision, it is so either because it “creates a debt or charge, or makes, continues, or renews an appropriation of public money.” In our opinion, it does not come within the meaning of any of those terms as used in tbe constitution. Tbe term “debt or charge ” manifestly refers to tbe contracting of a public debt for extraordinary expenditures, referred to and limited in sec. 6 of tbe same article, and has no reference to tbe salaries of public officers. Tbe appropriation for tbe payment of tbe salaries of circuit judges (which includes tbe salary of tbe judge of each judicial circuit in tbe state) is made by'secs. 170, 172, S. & B. Ann. Stats.,'and tbe enactment of cb. 488 neither “ makes, continues, nor renews ” it. Hence, cb. 488 is not within tbe requirements of tbe constitutional provision, and is therefore a valid law, although not passed with tbe formalities therein required. It follows that there is a fifteenth judicial circuit, and that it includes Ashland county. We take judicial notice that Hon. J. K. Paeish is the duly elected and qualified judge of that circuit.

Tbe remaining ground upon which tbe motion in arrest of judgment was founded is that one of the plaintiffs in error is a subject of tbe queen of Great Britain, and tbe other is a citizen of tbe state of Maine, and hence that tbe courts of this state have no jurisdiction to pronounce sentence upon them. Counsel seem to think that tbe case is within sec. 641, E. S. of U. S. Clearly it is not, and, if it were, no seasonable application for a change of venue to tbe federal court was made. Tbe plaintiffs in error must be content with tbe same measure of justice which would have been meted to them under tbe same procedure bad they been citizens of this state.

Tbe plaintiffs in error have submitted to this court a third petition for a writ of habeas corpus based upon tbe same grounds as were urged herein for an arrest of judgment. Having held that none of said grounds are tenable, tbe petition for a writ of habeas corpus must be denied.

After this case was remitted to the circuit court for entry of tbe proper judgment, that court was requested to appoint counsel for the plaintiffs in error,- under sec. 4713, B. S. The court refused to do so, and the motion was renewed in this court ore terms, when the cause was argued. We have held that sec. 4713 confers no such power upon this court. State v. Wentler, 76 Wis. 89, 97. The motion must be denied.

By the Court.— The judgment of the. circuit court is affirmed.

A motion for a rehearing was denied November 17,1891.