88 P. 551 | Kan. | 1907
Lead Opinion
The opinion of the court was delivered by
The question involved in this proceeding is the validity of the act creating the thirty-eighth judicial district. It purports to take Crawford
It is claimed that the statute in question has no legal existence because the legislature did not fully comply with the constitutional requirements in its passage. The particular defect pointed out is that according to the house journal the act did not receive a constitutional majority of the members of the house of representatives. The act was designated as “House Bill No. 979,” and the entry in the journal, after giving the number and title of the bill, is that it “was read the third time, and the question being, Shall the bill pass? the roll was called, with the following result: Yeas 83, nays 2; absent or not voting, 40.” Then follows the entry, “a constitutional majority having voted in favor of the passage of the bill, the bill passed, and the title, as above, was agreed to.” Immediately following this is a list of eighty-three names purporting to be the affirmative vote on the bill; then follows a list of two names purporting to be the negative vote, and that is followed by a list of forty names of members reported to have been absent or not voting. (House Jour. 1905, pp. 935, 936.)
The constitution provides that the legislature may “increase . . . the number of judicial districts whenever two-thirds of the members of each house shall concur” (Const., art. 3, § 14; Gen. Stat. 19.01, § 161), and if we assume, as counsel on both sides do, that this means two-thirds of all members elected to each house, and that only eighty-three of the one hundred and twenty-five members of the house of representatives voted in favor of the bill, it is plain that it did not receive the requisite number of votes. We have, then, an enrolled bill duly certified and authenticated, an entry in the house journal that it received á constitutional majority and had been passed, and another entry in the journal that only eighty-three members voted for the measure, which is less than a constitutional majority.
Two theories obtain as to the method of determining whether what purports to be an act of the legislature was constitutionally enacted. One, designated as the common-law rule, is that an enrolled bill authenticated and * promulgated by the legislature as having been duly enacted is conclusive evidence of the existence and contents of the act. The other is that when a
We are asked to reopen and reconsider the question, but we see no good reason to disturb a rule declared shortly after the constitution was framed and from which there has been no departure or deviation. It is not deemed necessary to consider which rule affords the greater safety to the public, nor to set forth the positions now held by the several courts of the country. It may safely be said, however, that the weight of authority favors the theory that courts may look to the journals of the legislature when the existence of an authenticated act is challenged. In Kansas the enrolled bill is regarded as record evidence of the highest character, but not as conclusive evidence. The constitution provides the manner in which a law shall
“The enrolled statute is very strong presumptive evidence of the regularity of the passage of the act and of its validity, and that 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.” (Page 731.)
In Homrighausen v. Knoche, 58 Kan. 646, 50 Pac. 879, the validity of an act was challenged upon the ground that a constitutional majority of the house did not vote in favor of the measure. Some of the entries in the journal indicated that a constitutional majority had voted for the bill, while others indicated the contrary, and it was held that the journal did not make that clear and conclusive showing of invalidity which would overthrow the evidence furnished by the en
“While the journals of the two houses may be examined for the purpose of ascertaining whether the legislative branch has expressed its will in accordance with constitutional requirements, yet. a legislative measure which has taken upon itself all the forms and appearances of verity which are. involved in its enrolment in the office of the secretary of state, its certification by the president of the senate and speaker of the house and its approval by the governor, may not be impeached by the legislative journals except when the proof furnished by them is of the clearest, strongest and most undoubted character.” (Page 92.)
In The State v. Andrews, 64 Kan. 474, 67 Pac. 870, the rule was stated in about the same form, except that it was intensified by an additional adverb:
“An enrolled statute imports absolute verity and is conclusive evidence of the passage of the act and of its validity, unless the journals of the legislature show affirmatively, clearly, conclusively and beyond all doubt that the act was not passed regularly and legally.” (Syllabus.)
The application of this rule sustains the validity of the statute in question. The presumption of validity which goes with an enrolled bill can never be overthrown by entries in a journal which are themselves inconsistent and contradictory. The journal does not show “affirmatively, clearly, conclusively and beyond all doubt” that the bill failed to receive a constitutional majority. It is true that the entry of the yeas and nays on the roll-call shows but eighty-three affirmative votes, but there is a later entry in the same journal that a constitutional majority did vote for the measure and that the bill passed. The duty devolved upon the speaker, with the assistance of the clerk, to ascertain how many votes were cast for and against the bill, and to decide whether a constitutional majority had voted for its passage. The votes were counted and a decision was made by the presiding officer that a suffi
It is suggested that the record of the yea-and-nay vote is a more detailed statement of the proceedings and necessarily better evidence of the legislative action than the statement of the count and decision made by the presiding officer. Each is required to be ■entered upon the journal, and there is nothing in the language of the constitution indicating that one is paramount to the other. If it be granted that, in its nature, the entry of the yea-and-nay vote is more convincing than the entry of the decision that the requisite votes had been cast, the repugnancy and contradiction in the journal remain. The fact that the journal contains entries directly opposed to each other — entries which cannot be reconciled, so that to accept one would be to disregard the other — gives rise to a doubt of the accuracy of the journal itself and makes it clear that under the rule such evidence cannot be used to impeach and overthrow a duly authenticated statute.
The rule was applied to a somewhat similar state of facts in the case of In re Vanderberg, Petitioner, &c., 28 Kan. 243, where it was claimed that an act creating a judicial district did not receive a constitutional majority of the house of representatives. Some entries in the journal indicated that a majority voted for the bill, while other entries were to the effect that the legal votes cast for the bill lacked one of making the needed majority. After pointing out the repugnant statements in the journal, and showing that upon its face it was conflicting and ambiguous, the court remarked that “the enrolled statute is not to be set aside
In explanation of defects and inconsistencies found in-the journals of the legislature it has been said that they are “hurriedly and sometimes carelessly made. The reading of the same for correction and approval from day to day is frequently dispensed with, and therefore it is not difficult to account for ambiguities and inaccuracies that may be found therein.” (Homrighausen v. Knoche, 58 Kan. 646, 649, 50 Pac. 879.) Under the methods used in taking and recording the votes of the members mistakes may readily be made. As all familiar with legislative proceedings know, the clerk uses a printed roll of the members’ names, with a column for the yeas on one side and a column for the nays on the other, and as the members answer to the roll-call a check-mark or figure is placed in the yea or nay column, opposite the names. Sometimes there is a second call of those absent or not voting on the first call, and if they respond other marks are made to designate their presence and the votes cast. Occasionally, members change their votes on a measure, and t&is requires a change of the marks already made on the roll; and all must be made amid the hurry and distraction of a busy legislature. The journal is made up at a later time from this and like memoranda, and it is easy to see how errors might creep into a record made in this way. In speaking of the manner in which the proceedings of the legislature are recorded, and the weight to be given journal evidence, this court has said:
“It is no reflection upon legislative integrity, no criticism of legislative methods, to say that the journals of the houses are often carelessly, inaccurately and partially kept. They , are often hurriedly made up, written by clerks having little aptitude for the work and slight sense of responsibility in its performance. Upon many days, especially as the session ad-*138 vanees,- the business accumulates, the saving- of time becomes important, and the reading of the journal of the preceding day is dispensed with, so that mistakes fail of - correction and unfortunately pass into forms of legislative history. It is also a notorious fact that in many cases, to a great extent in all cases, the journals are not made up until after the législative session has closed. They are then put into such methodical shape as can be done, made up of the loose and disconnected memoranda noted from day to day as the legislative session progressed. These facts justify courts in attaching less weight to journals of legislative proceedings as evidence of the non-enactment of laws than they would otherwise possess.” (In re Taylor, 60 Kan. 87, 93, 55 Pac. 340.)
It appears that on the morning following the passage of the bill in question the house dispensed with the reading of the journal, and that may account in some measure for the failure of the house to notice or correct the inconsistency of the entries in the journal. However that may be, it is clear that these entries involve too much of inconsistency and doubt to impeach or overthrow a properly authenticated statute.
Judgment is therefore rendered in favor of the defendants.
Concurrence Opinion
(concurring specially) : I am unable to discover any ambiguity or inconsistency in the entry made upon the house journal relative to the passage of the bill creating the thirty-eighth judicial district. As I view the matter, the recital that the bill had received a constitutional majority, following the record of the roll-call showing eighty-three affirmative votes, cannot be construed as a declaration that more than eighty-three members had voted for it, but merely indicates that the house, rightly or wrongly, regarded eighty-three votes as making a constitutional majority. The entry was obviously made upon the supposition that eighty-three votes were enough to pass the bill, and I believe that the supposition was correct.
The constitutional provision is that new judicial districts may be created “whenever two-thirds of the members of each house shall concur.” (Const., art. 3, § 14; Gen. Stat. 1901, § 161.) Where a two-thirds vote (or other proportion) of a legislative body is prescribed as necessary for any purpose, two-thirds of those who are present and constitute a quorum is understood, unless special terms are employed clearly indicating a different intention. (Cooley’s Const. Limit., 7th ed., 201, note 2; Cotton Mills v. Commissioners, 108 N. C. 678, 13 S. E. 271; Green v. Weller et al., 32 Miss. 650; Warnock v. Lafayette, 4 La. Ann. 419.) This is the legislative construction placed upon the provision of the federal constitution that a bill shall become a law notwithstanding the president’s veto, “if approved by two-thirds of” each house. (U. S. Const., art. 1, § 9. See The United States v. Alice Weil et al., 29 Ct. of Cl. 523, 539.) A contrary view is announced in State v. Gould, 31 Minn. 189, 17 N. W. 276.
A purpose to impose a more rigid requirement — that two-thirds of the entire membership of a body must unite upon a measure in order to make it effective— is usually indicated by using the phrase “two-thirds of all the members elected.” How generally this has
But a more effective argument to the same purpose is found in the history of section 14. It was taken with various changes from section 15 of article 4 of the Ohio constitution of 1851, the words of which, so far as here important, were: “Whenever two-thirds of the members elected to each house shall concur therein.” “Therein” was stricken out as superfluous on the recommendation of the committee on phraseology (Proc. Const. Conv., 1859, p. 355), but “elected” was omitted from the draft prepared by the judiciary committee (Proc. Const. Conv., 1859, p. 67.) It can
To fail to attach significance to the omission of the word “elected” would be to disregard the most obvious and convincing guides to the ascertainment of the purpose of the constitutional convention. The omission ought not to be ignored, and if given any force at all it must be such as results in interpreting the section to mean that a bill creating a new judicial district, in addition to receiving a majority of all the members elected to each house, must receive the support of two-thirds of all the members present when the vote is taken. The bill here involved received such support, as shown by the record, and was duly passed.
That this interpretation is in accordance with the intention of the framers of our fundamental state law further appears from this: Much opposition was developed in the convention to giving the veto power to the governor. The section relating to this matter was reported in substantially its present form. (Const., art. 2, § 14; Gen. Stat. 1901, § 132. See Proc. Const. Conv., 1859, p. 39.) Various motions were made to
I prefer to base my concurrence with the decision of the court upon the proposition that, only eighty-five members of the house being shown to have been present, eighty-three affirmative votes were enough to pass' the bill.
Concurrence Opinion
(specially concurring) : The views expressed in the foregoing special concurring opinion have my approval.
