48 Ala. 115 | Ala. | 1872
At the June term of the city court of Mobile, 1872, the defendant, John Moody, was indicted under section 39 of the act entitled “An act to regulate"^ elections in the State of Alabama,” approved February 26, 1872, as the same is printed in the published book of Acts of 1871-72, p. 15, was tried and convicted, and sentenced to be imprisoned in the penitentiary for the period of two years.
The defendant appeals to this court, and by the written agreement of the State, by its solicitor, Alexander Mc-Kinstry, by whom the said indictment was preferred, and who prosecuted for the State in said court and tried the said cause, and by the defendant and his counsel, the record is filed and the cause submitted for the decision of this court, as though the appeal had been taken to the present term.
The defense made in said city court was, that the said act had not the force of law, because the said act as published was not passed by both houses of the general assembly, as required by section 15, article 1Y, of the Constitution; and that the bill, having the same title, which passed both houses was never signed by the speaker of the house and president of the senate, and was not presented to the
We are gratified to know that the question here presented is not one of first impression in this court. The same question, in all essential respects, arose in the case of Jones v. Hutchinson, and was decided by our immediate predecessors at the June term, 1868, and is reported in 43 Ala. 721.
In that case the court say, “It is undeniably true, that a bill becomes a law only when it has gone through all the forms made necessary by the Constitution to give it validity.”
The court also say, that the bill in that case, which was signed by the speaker of the house and president of the senate, and which, after being so signed, was presented to and approved by the governor, was not the bill which had been passed by the two houses; that the bill which was passed by the two houses was never signed by the speaker and president of the respective houses, and was never presented to the governor for his constitutional action thereon. It was also said in that case to be well settled, that the courts could, and if necessary would, look behind the printed statute to the legislative records to ascertain whether it had a legal existence.
Now, on examination of the legislative records in this case, (the journals of the two houses,) we find that the bill “to regulate elections in the State of Alabama,” originated in the house, and was there passed, substantially, in the form of said published act, and on the 14th day of February, 1872, was sent to the senate without being engrossed. Senate Journal, p. 458.
That on the 20th day of said month the said bill was there taken up, read twice forthwith, under suspension of the constitutional rule, and made the special order for 11 o’clock on the next day. Oh that day the senate entered upon the consideration of said bill, and some twenty-five or thirty amendments were- made to the same, materially
On the 24th day of the same month the said bill, as amended by the senate, was taken up in the house of representatives, and all the amendments of the senate were concurred in and passed by said house. — House Journal, page 560.
After this, in preparing the said bill to be signed by the presiding officers of the two houses, and to be presented to the governor, &c., whether from carelessness or from some cause less excusable, the said amendments, or the most material of them, were left out and altogether omitted in the engrossed or enrolled copy thereof, and, with said omissions, was signed by the speaker and president of the senate, sent to and approved by the governor, as the bill which had passed the two houses respectively.
These facts being established by the journals of the two houses, the said bill, so signed by the presiding officers of the two houses and approved by the governor, and published in the said book of acts, never acquired the force of law. — Sections 15 and 16, article IY, of the Constitution. It is, as a law, wholly void, a mere nullity, and imposes no legal obligation on any body. Mr. Cooley, in his book on Con. Lim., p. 135, says, speaking of legislative proceedings, “Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from the journals tli# any act did not receive the requisite majority, or that in respect to it, the legislature did not follow any requirement of the Constitution, or in any other respect the act was not constitutionally adopted, the courts may act upon the evidence, and adjudge the statute void.”
On the authority of this author, and the cases cited by him, and on the case of Jones v. Hutchinson, supra, we have no hesitation, and we feel it our bounden duty, to declare the said act “to regulate elections in the State of Alabama,” as it is published as aforesaid, altogether void; and that
The said act being void, it follows, that the indictment under which the defendant was convicted is also void, and the sentence and judgment of the court on the same are erroneous and must be reversed, and the defendant dis-* charged.
The clerk will certify the judgment in this behalf to the city court of Mobile, with instructions to discharge the defendant out of custody.