Scott v. Clark, 1 Iowa 70

Scott v. Clark

1 Iowa 70 | Iowa | 1855

Woodward, J.

The relator sets out in his petition part of the act of January 25th, 1855, Session Laws, p. 105, entitled “ An. act to relocate the seat of government,” and annexes a copy of the whole act, praying that it may be taken as a part of his petition. The last publication of this act was on the 6th of March, 1855. The answer sets out the whole of the act, entitled “ An act in relation to the taking effect of general laws,” which was approved January 24th, 1855, and was last published January 31st, 1855. The answer does not show when the defendants were appointed, but the petition avers that they were appointed previous to the first of April. The answer avers that the principal act, that under which they were appointed, as well as that authorizing the governor to publish certain acts, was published on or about the 25th January, 1855. There was a demurrer to the answer, which was overruled, and the plaintiff replied, denying that the act of the 25th of January was in force, when the commissioners acted. The cause was submitted to the court upon the petition, answer and replication, according to the record, without other evidence.

The court finds (and this finding is entered of record) that the legislature did pass the act of 25th of January; that that act provided for the appointment of five commissioners, &o.3 &c., that this act was published on ox about the 25th *77of January, 1855; that it was so published by order of the governor; that the governor was authorized so to publish it by virtue of “an act in relation to the taking effect of general lawsthat the commissioners were about to relocate the seat of government of the state of Iowa; and that they had at that time, and still have, a lawful right to relocate the same.

The counsel for the defendants claims that this cause is to be tried by the same rules that other causes are, and that the same presumptions in favor of a court of general jurisdiction, are to be entertained; and he says that there was a fair trial upon issues joined, and a finding upon all the issues for the defendants, &c. Why are we thus exhorted? We will certainly endeavor to apply the same rules of law to this cause, that we do to others.

It will be noticed that the only issues are issues of law. The relator avers that the principal act was not in force, and the defendants d.eny that it was not in force. The one party claims that, therefore, the commissioners had no authority to act, and the other that they had. The cause is not here upon the demurrer, as counsel seems to suppose, but upon the petition, answer and reply, with the public laws of the land, and these incorporated in the pleadings. In other words, it is here upon the finding of the court upon those pleadings and laws. There is no call for the exercise of a presumption in favor of the court, except in relation to the time of the appointment of the commissioners, which does not appear in the pleadings. It is not shown that they were appointed after the 26th of March, the day on which the principal act took effect, according to the defendants’ reasoning. But we will presume the court had proper evidence in relation to this, notwithstanding the record says the cause came on for hearing on petition, answer and replication. But how shall we manage this doctrine of presumption, when the court finds that the principal act (25th January) was published on or about the 25th -of January, while the secretary’s certificate says, it was published on the 28th of February and 6th of March ? Shall the presumption *78fail, or the certificate ? If the latter, then there is no evidence that it was published at all. It will therefore bo more favorable to the defendants, to follow the certificate.

We then approach the principal question, thus: the act empowering the governor to publish acts, was published on the 31st of January, and was to take effect from and after such publication. The act to relocate the seat of government (under which defendants were appointed) was published on the 6fck of March, and by the Code, § 21, took effect on the 26th of the same month, if the publication was authorized. Its own 11th section, provides that it shall take effect from and after its passage, but this is not warranted by the constitution. We come then to the main question, was the governor constitutionally empowered to publish the act of 25th January in the newspapers, and by so doing, did he give it effect ? The act of 24th of January, which is supposed to give him this authority, says he may so publish laws of a “general" nature. Is the act so published by him, one of a general nature ? The usual legal distinction of acts, is into public and private. But there is a distinction of a legislative character between the general and special, which is recognized by section 28 of the Code, and see 7 Bac. Ab. (1832) p. 444, note. Of the special character, are the two acts we are now considering. They are without doubt public, but not general. Then, the act to relocate the seat of government is not one of the class of acts which he was authorized to publish. But we do not prefer to leave the cause resting upon this point, but pass to that on which both sides have rested it mainly, and on which, it is manifestly the object to have a decision; namely, whether this power can be conferred upon the governor constitutionally. We are united in the opinion, that it cannot.

The constitution says, “ If the General Assembly shall deem any law of immediate importance, they may provide that the same shall take effect by publication in newspapers in the state.” Now, it seems as though every word uttered to explain, or argue upon this passage, would obscure its simple clearness. If the General Assembly shall deem, &c., *79tbej may provide, &c.” How can it be pretended that any one else can judge whether it is important. The discretion, the judgment, is vested in them. The time of its taking effect is as much a part of the act as any other provision, and it may be as important. But counsel ask, have they not provided that the same shall take effect by publication ? "We answer, no. They have first given to the governor the judgment whether it is of immediate importance, and then, if he thinks it is, they have provided that he may provide that it taike effect by publication. The counsel, in arguing that this is not a delegation of legislative power, says: “ The law was fully formed, and adopted, and approved by the governor. All its principles, its rules, its provisions, were complete. No legislative action or power was necessary further, and of course none could have been delegated.” So true is this, in the light in which we view it, that they provided that it should take effect from its passage. But in this they exceeded their powers, and the effect is, that the act passed over under the general provision of law, and went into effect on the first of July. Const, art. 3, § 27; Code, § 22 ; Laws of 1847, 202; Calkin v. State, 1 G. Greene, 68.

We are not willing to be led away by the argument, that the time of the taking effect of this act is placed upon a contingency. It is placed upon a discretion, a judgment. There is not much analogy between the question before us, and that relating to the submission of laws to the people, so far as those cases have arisen within our knowledge, and it seems unnecessary to enter into that much mooted subject. We are, in conclusion, clearly of the opinion, that the aforesaid act of the 25th of Jan. 1855, entitled “An act to relocate the seat of government,” did not take effect by publication in the newspapers.

There is a matter connected with the form and manner of this proceeding, which we are obliged to notice. This is an information in the nature of a quo warranto under our statute. See Code, chap. 123, page 297. An information being against public officers or corporations, or persons claiming to hold offices in' corporations, and only against such per*80sons and bodies, and being partially criminal in its nature, must generally be brought in tbe name of tbe state. It can be prosecuted by tbe public officer only, altbougb be may do it upon tbe relation of an individual, and even for tbe benefit of sucb individual. Code, §§ 2151,-52, 53, 2164. It seems that it cannot be filed without tbe proper prosecuting attorney, and if be refuses, be may be directed so to do, by tbe governor, tbe General Assembly, or District Court. In tbe case before us, it is in tbe name of tbe relator only. A private person cannot so take and handle á high prerogative or state writ. The relator makes this objection against bis own doings. It is doubtful bow be can make tbe objection, but it is possible that be may. At all events, tbe court can prevent sucb a use of a state proceeding, and will do so. Tbe judgment of tbe District Court is reversed, and tbe petition is dismissed at tbe costs of the relator.