*1 judgment reversed, grant instructions appellant’s motion for a new trial.
Jasper, J., participating. C.
Note.—Reported in
Governor, et al. 28,559. Rehearing [No. Filed November January 10, denied 1950.] *2 Gilkison, J., opinion. C. dissents with Gilkison, J., opinion. dissents with Cline, Huntington, appellants. Claude McManamon, Attorney General, Earl R. Emmett J. Webber, Deputy Cox, Special Counsel, and Thomas L. General, Attorney appellees. Appellants seek challenge valid-
Emmert, J. Regular ity 86th acts of the Session of the of certain charged complaint Assembly. sub- (Ch. 257), Bills numbered 379 stance that House (Ch. 277), 232), (Ch. 233), and also (Ch. and 25 involving expenditures twenty other “fifteen or bills gov- units and functions of and activities various ernment,” for the reason were were invalid Assembly passed by after the hour the General each Monday, March which midnight, of 12 o’clock was the of the constitution of Article under 29§ regular session; expiration fact time of adjourn sine die until did the General Wednesday, Time P.M. Central Standard 5:16 *3 period 1949, than 41 9, of more which was March by longer fixed the constitution than the time hours Assembly session; regular that the General for the timepieces at 11:22 P.M. on and stopped the clocks 9, stopped until March remained March and complaint that General further states the The 1949. employees falsely and Assembly by and officers its journals show- fraudulently official entries made adjourned P.M., sine die at 11:59 ing the charged presiding that It also the March falsely, fraudulently and the Houses of each of officers genuineness to the wilfully and certified as attested having passed been said bills as and correctness Secretary Assembly; that the of State by the questioned the his office all of accepted filed in and has of the him the President as certified enactments General As- Speaker of the House the and Senate illegally be moneys state will the sembly; that expended purported in accordance with these acts taxpayers will a fraud which on the of the state. appellees The filed an answer in abatement two in paragraphs. paragraph The first admitted that journals Representatives records of House Legislature and the Senate on their face show the adjourned required by the term within the constitu- tion, properly and that attack bills under were signed, properly pre- attested and authenticated siding House; according officers each all appear duly said acts on their face records to be required by constitution, enacted as con- which is question validity on the as to clusive enactment paragraph acts. The second in of said substance charges action in substance truth was a suit against Indiana the State of without consent.
Appellants designated filed a demurrer to this an abatement, in but the memorandum swer thereto made objection no the matters pleaded therein been raised should have demurrer. A de ground an answer murrer to abatement on the it does not state facts sufficient to abate cause accompanied by memorandum, must be action specify defects or error a failure memorandum Hopkins v. Matters waives same. 248; E.
App. 676, Rev., 112 N. Watson’s Works’ 659; Rev., & Forms Practice Lowe’s Works’ § pp. Practice 16.13. Indiana The record does § present charged contention that matters in the answer should have been raised demurrer. plea demurrer abatement was over *4 ruled, upon appellants plead failure of the judgment abating was entered
further court, From action. the record made the trial appellants appellees we are advised proper considered as the manner used to raise the validity question Legislature, of the acts of the though it was unorthodox. “. . It even . has been held party procedure court that a must this abide a which he has inducеd the In court to follow. Thorne (1903), 566, 257, Ind. v. Cosand 67 N. E. appellant equit court asked the to submit a cause of cognizance jury. able to a After an unfavorable ver judgment, appellant objected pro dict and to that proceeding The court held that after that cedure. was appellant question had the should not be allowed to regularity steps he had induced the court (1885), take. To the same effect is Dawson v. Shirk 184, 1 102 Ind. N. E. 2627,
“4 states C. J. the rule as follows: § “ party voluntarily adopts ‘Where certain agrees procedure form of which his or to the manner rights shall be submitted determina- court, permitted trial tion in the he will not be complain, appeal error, proceedings conformity had in were thereto erroneous.’ “Also see 49 C. J. 945 and and author §§ there collected. ities . . .” State ex rel. Reiman v.
Kimmel N. E. parties by 2d 911. The their conduct in the trial appeal sought court and on have a determina controversy merits, on the tion of and in view of great public determining interest involved in validity question, the acts in we shall decide the questions presented on the merits. matter though appeal are not moot even the acts have been proclaimed published, distributed and in effect Governor. law, а maxim
“It is as old as the common and a rule judicial necessity, court takes notice of *5 46 is, presumed law; it
public it is to know what Evans, duty Auditor it is know it.” v. and 514, (1869), This Ind. 520. court Browne 30 right of source of information make use has question. give State correct answer to will which 578, (1909), 89 172 Ind. v. Wheeler ex rel. Colbert right duty discharge we this of E. In the N. Secretary acts filed with the enrolled have examined sought ques State, each of acts find of properly proceeding authenti has been in this tioned Speaker the President of Senate cated Although by the issues it is admitted of the House. journals questioned acts and the House both the con legislative was taken before action all show adjournment, have also ex we time stitutional each and find that journal House each of amined P.M., March adjournment at 11:59 sine die an shows 7, 1949. Evans, Auditor v. Browne decision
Since the consistently 514, supra, court has Ind. (1869), 30 proper an enrolled that a authentication of held law, conclusive, a matter act passed conformity duly con act was 254; (1876), Board 53 Ind. Bender State v. stitution. County Madison v. Commissioners Burford 383; Board Commissioners (1883), Ind. Stout v. 93 222; 343, N. E. County (1886), Ind. 8 107 Grant (1889), State, 119 ex Hovey, rel. Carson v. Governor 21; Commis 395, ex rel. Board E. State 21 N. Ind. (1895), County 140 Ind. v. Boice Benton sioners of 113; Tele 64, Union 506, 40 N. E. Western E. 39 N. 281, (1895), 141 Ind. Taggart, Auditor graph Co. v. (1897), 1051; 148 Ind. Lewis v. State 40 N. E. (1909), 675; Colbert v. Wheeler E. State ex rel. 47 N. 47 1, supra.1 N. E. Ind. This is a rule of evidence, law and not substantive and there is no pleading known to the law which the existence of an put question can be act issue tried as a of fact. Auditor v. Browne Evans, (1869), 514, supra; 30 Ind. v. (1909), State ex rel. Colbert Wheeler 172 Ind. v. State 1, supra; (1858), E. N. McCulloch
424; Hovey, Governor v. Ind. 21, supra.2
21 N. E. *6 charge may Nor this court into a of fraud examine Assembly committed or the members judiciary, for rea thereof. “The constitutional grounds upon public policy, have sons and of inquire invariably the motives into declined to legislature prompted acts of which the official executive; and determine will not hear and courts of supply corruption charge annul or to to of fraud and Terre legislative State, Ketcham v. ex rel. action.” (1906), 166 Ind. Indianapolis & Railroad Co. Haute McCulloch v. N. E. 1077. See also 424, supra. (1858), 11 Ind. State necessary opinion in this
It is not determine presiding practiced upon the of an act of fraud effect genuine might conceivably authenticate as officers who requirement authentication is contained constitutional for The majority members elected to in 25 of Article “A of all the 4. § every joint necessary pass House, bill or resolu- each shall be signed joint passеd, tion; be resolutions so shall and all bills and Presiding respective Officers of the Houses.” justice bound, officio, notice “The are ex to take Courts they part public acts, being pleaded, are of the their without general land, persons, particularly law of the which all judges, presumed put cannot be in issue to know. Public acts by plea. pleaded statute; public Nul tiel record cannot be judges are to determine existence of them from their own knowledge.” (14th Ed.) pp. 619, Kent’s Commentaries 620. duly passed. in
a bill not
the words
There is
con-
no
presented
here of
tention
such fraud as was
Secretary
Mayr,
rel.
ex
State Marion Circuit
v.
Court
It been the has consistent court that of this attending uncertainty ascertaining the evils statu- tory out-weigh any far laws state would benefits might by permitting impeach- which obtained be an ment the authentication an act. If the members their the General violate constitutional duties adjournment, be can defeated the next time such up election, remedy offices come but not with the courts. authority political power must,
“. . . Public necessity, officers, who, being human, be confided to reposed perhaps violate trusts them. This absolutely. applies cannot avoided But it all also to agencies. judiciary human It is not fit that should purity beyond others; claim for itself a nor it has been say high at all times truth places able disgraced. govern- not been have framers of our ment supervise have constituted it with faculties to *7 departments prevent co-ordinate and correct or abuses authority. statute; It cannot their authenticate a belong power it; that keep does not to can it nor the legislative journal. by It ascertains the statute law look- ing authentication, merely at and then its function is cannot, expound think, to and administer it. It we look authentication, beyond that because of the constitution may, go may it itself. If then the reason it same beyond journal, impeached; the when the so legislation may validity depend upon be made the fact, memory can, witnesses, and no man in know the obey. consequences law, is bound Such would which he large price possible pay immunity from the be a high are, authority abuse of officers we who think, charged duty certifying public by competent the fact that a statute has been enacted governments repose must houses. Human in confidence may abused, remedy.” It officers. and there be no Evans, Auditor v. Browne 526. Wigmore, (3rd Ed.) also Evidence See § establishing regu- the law In view of the conclusive question, in larity unnecessary acts it is of the to deter- the contention that the action was an mine unauthor- against Appellants presented state. ized suit have appeal. Therefore, judgment no error affirmed.
Gilkison, J., opinion. C. dissents with
DISSENTING OPINION The allegations complaint J.C. Gilkison, substantially majority opinion, as set forth in the are though they specific much are more direct and than fully opinion. They good sufficient to state a showing of action a fraudulent cause violation of the of the State of Indiana Constitution members Eighty-sixth Assembly. This violation the opinion in substance admits but seeks to excuse or avoid. complaint injunction states a class action for
The similarly and all of relator citizens Indiana behalf situated. procedural presents think record
I defects judgment wholly trial rendered court make the erroneous. appellees action discloses record
The' general appearance. only ap- not entered have special appearance pearance them is a entered *8 the record thus: “Come now defendants shown special plea appearance and file in abate- counsel and herein, all ment for the defendants which is as follows plea omitting abatement, Then follows the which signature verification, caption, is as follows: J. Emmett “Comes now McManamon as Attor- Indiana, ney of the of Cox State Earl R. General Special Attorney Counsel to of the Indiana, Deputy State of and Thomas L. Webber as Attorney Indiana, General of State of hereby appear specially for and on behalf each of defendants, Henry above named F. Schrick- er, Indiana; of the State Governor Charles Fleming, Secretary Francis of State of the State Indiana; Propst, of the James M. Auditor of State Indiana; Wilcox, Shirley and F. State Indiana; Treasurer of sole State of purpose filing this Plea in Abatement herein. respectfully “Each of said defendants submits by way Abatement,
and contends Plea plaintiff’s cause of action herein should abate following each of the reasons: “1. Complaint “Plaintiff’s admits that the Journals Representatives and Records of the House of State, the Senate of the comprising both Legislature of the Indiana, State of on their face Legislature adjourned show that said within the required by term the Constitution of the State of Indiana; Complaint further admits that аll Bills enacted aforesaid, in the said Legislature, as including those herein appear attested, attacked proper signed, properly form and certified presiding and authenticated officers of each House Legisla- said General
ture; according to all of said records said appear on Acts enacted as duly their face to have been required by the Constitution. question “This is conclusive on the as to validity of the enactment of said Acts. There- *9 fore, plaintiff’s action herein in and substance attempt in fact is an to have the JUDICIAL branch of the Government the inter- of State of Indiana prerogatives fere with the official activities and of the LEGISLATIVE branch of the State Gov- ernment when assembled. “Any prohibited by such action Article is 3 Sec- Indiana,
tion of the of the of Constitution State and this Plea in Abatement should be sustained foregoing the Court for the reason.
“2. against action filed cer- cause of is “While designated nevertheless tain Officials it is State in truth and in fact definite substance and against outright questions and the of Indiana suit State Legislative of branch the actions of the is and aimed as assembled the State Government printing, publication and preventing at the due promulgation of of numerous Acts year of Indiana for the of the State among the General 1949; Appropriation attacked is which Acts so integral Act, and is an which carrying on of necessary Act to facilitate machinery Government the State of functions and beginning July bienneum against “Therefore, it is definite suit as such exer- Indiana the State State. Since grant rights sovereign failed to has of its cise of action filing such cause authority for the without plaintiffs are herein instituted of action prosecute cause authority against cause right said such therefore Indiana and the State by this abated be ordered of action should Court. authority allege any such do not “Plaintiffs bring Indiana to granted the State of
them as against suit this said therefore said action consent without Indiana the State of of Indiana. foregoing rea- “WHEREFORE, each respect- defendants above named each of the sons abate this Court should fully submits herein and action plaintiffs’ cause within appropriate judgment and decree declare the same abated, said action the Court done against plaintiffs.” with costs Relator filed a plea demurrer to the in abatement which, omitting caption signature is as follows: plaintiffs herein, now the “Come separately and
severally, and demur to the Plea in Abatement of herein, each of demurrer each of said ground the defendants and for say the said Plea in Abatement of specifica- as to defendants each tions of said Plea Abatement do not state plaintiffs’ facts sufficient Complaint to avoid herein and do not state facts sufficient to abate plaintiffs’ action Complaint. cause of stated in *10 “Memorandum Specification “As to 1. Complaint allegations by “1. The herein as paragraphs set based forth in rhetorical 8 9 is and upon theory Assembly the the General perpetrated
and its officers
a fraud and did not
passage
function and act
in the
of certain bills
prescribed by the
within the limitations as
Consti-
of the
tution
State of Indiana and that
its officers
willfully
‘falsely,
knowingly,
fraudulently,
and
disregard
provisions,
utter
of said Constitutional
legal
pretended
Assembly
to function as a
of the State of Indiana
March
the said date of
after
1949.’
7, provide
“2.
the
Sections
to
Article
government
judicial
creation
coordinate with the
administrative branches of the
powers
as
of the
branch of
legislative
or
and executive
government
as the
distributed
section
article 3
con-
of thе
or the
construction
Constitution
the
legislature
act
is a
struction of
law or
of the
judicial function.
“Guckien,
Rothrock,
v.
the in the Constitution ing illegal Assembly an act in illegal functioning under such enactments proper parties to the said suit. Mayr, Secretary ex
“See rel. of State v. Court, Page (176 Ind., Marion Circuit N. Page E., 626).” overruled, and elected to demurrer was relator This ruling, judgment and the court rendered stand on the judgment abate and a further notable that action follows: merits of case as adjudged considered, “It decreed further by plaint questioned com- in court are acts said legal, enact- valid and constitutionаl the State ments of the 1949 General of of and from the recover and that of the defendants Indiana each plaintiff his costs in this behalf expended laid in the sum out $-.” Nos. appellants’ It will noted memoranda in pointedly defects call attention to 8 and each necessary that is not in It the Plea Abatement. plea in abatement a in a demurrer memorandum by de- pleader raise that he should should advise sought plea questions to be murrer the raised provid- suggested opinion. majority The statute filing requires ing a memorandum with demurrer only such memorandum shall state “wherein pleading insufficient want of facts.” Burns’ Replacement, 2-1007 The statute cited Cl. Sixth. § demurring party provides: so shall be further “and the question right waived thereafter deemed to have his specified defect not in such memo- so the same for consistently However, held randum.” this court has complaints, answers and demurrer even cases of pro- abatement, pleas replies the waiver other than demurring statute, party applies to the vided prevent from only court this or trial and does not fully defective considering matter how demurrer no *12 specifications may memorandum be. As said well Townsend, by Poer, inJ. Trustee v. ex Hin- rel. shaw 59, 121 in Ind. N. E. discussing provided pro- the waiver in the law for viding complaint for a demurrer a with attached 2-1007, memorandum Replacement, under Burns’ 1946 § 157, 2, p. 415, Acts Ch. and which demurrer had § by been overruled the trial court: compel “This” statute “was intended to the one demurring appeal to waive review on of that which not is bound bound not was disclosed to the trial court. It does follow, however, this or trial court such If waiver. the courts are to be always by waiver, such absurdities and in- justice from the courts the instance, many would result It cases. would take power justly. to decide For may complaint be filed which in- law, tended to invoke a certain remedy ask authorized law invoked. An negligence might brought action statute which under a implication expressly or excluded remedy. such court shall be Can it be that this or the trial said glaring compelled let such a in- purposely inadvertently justice because or stand parties? question waived has been To parties by to hold that the hold this would be legislature prevent authority from courts could justice.” administering discussing proposition same in a case where In memorandum, complaint, with attached a demurrer to a court, Lockyear, by the trial J. had been overruled Court, Appellate speaking for the said: сonsidering sufficiency complaint of a “In not limited to reasons mentioned court is this filed, but, if the demurrer memorandum to reason, essentially any complaint bad duty to so declare.” is our it Vigo County v. Commissioners Board of App. (1929), 93 Ind. Moore N. E. 779. cited has been over- cases last above
Neither of the prin- distinguished, way modified. ruled, unques- remain the ciples announced law therein binding upon and are us Indiana tioned law of *13 vast is of such us in this case matter before case. The agreeable law, and with importance that a decision required. excuse, is evasion an insuffi recently that when an held has This court complaint, a filed plea is in abatement cient it memorandum general filed with is demurrer to memorandum and the the demurrer will read court plea abate reading “the indicates gether, and if such sufficient to abate the action facts does not state ment fact, is, plea an answer in bar. This because said requirements of the clearly to meet sufficient is proper reason for 1933” and a 2-1007 Burns’ statute § overruling reversing judgment a demurrer. State such Adams Commissioners et al. v. Board rel. ex Gibson of of 284, 286, 53 E. 2d 347. Ind. N. (1944), 222 et al. Co. plea is read in abatement when the case In the instant memorandum and the the demurrer in cоnnection appel apparent that it is heretofore as noted thereto is It against State Indiana. of is not action lants’ by plea appellees raise apparent that seek to likewise presented have should which in abatement complaint. to the demurrer against only certain the State officers of The action doing allegedly enjoin certain unlawful them from Acts of the 86th things, respecting some of the Session passed Assembly allegedly Indiana of the General lawfully allotted for expiration the time after the paragraph Undoubtedly the second session. Fitzpatrick parte Ex in abatement bad. answer 964, there 557, 560, and cases 86 N. E. (1909), Ind. (1917), 186 Ind. cited; Jackson Bennett v. Circuit v. Marion 921; Mayr, rel. Jr. ex
N. E. (1931), Court 626; 176 N. E. Ford Dept. Motor Treasury, Co. v. The State Indiana et al. U. S. 462 Head note 89 L. Ed. 389, 393. properly challenged
It was the demurrer and it was reversible error to overrule the demurrer to this paragraph.
Paragraph plea 1 of the in abatement avers no facts merely whatever. It calls attention some of the complaint, jour- averments substance nals and records of both houses of the show Legislature adjourned on their face that the within the required by Constitution; time and that all the bills signed, рroperly attested, attacked are certified and au- proper thenticated officers of the General As- sembly. complaint That these averments con- validity questioned clusive of the Acts. It then *14 following pleader avers the remarkable of conclusion “plaintiff’s action herein in substance and in fact attempt an to have the Judicial branch of the Govern- ment of State Indiana interfere with the official prerogatives Legislative activities and branch of the State Government when assembled.” “ ‘Plea in abatement’ which, is one without dis- puting justice mode, plaintiff’s claim, objects place, to asserting it; or time of plaintiff it allows place
renew suit another form, or or at another time, and does not assume answer action on merits, deny particular existence of cause of plaintiff action on which relies.” Dictionary (3rd
Black’s Ed.), Law p. 1366. Dictionary (Rawle’s Bouvier’s Law Ed.), 3rd 1, 7; page 3, page Vol. Vol. ex State rel. et al. Board Gibson v. Comms. Adams (1944), 288, 347, 284, 287, Co. 222 Ind. 53 N. E. 2d supra.
58 v. State Randolph (1928), by Willoughby, J. in
As said
214,
210,
In in abatement must be certain a certain “Pleas nothing every particular, intent in and must leave supplied by supposable to be intendment no presumptions No law or answer unobviated. indulged in fact will be their favor.” v. State 210, 213, Randolph (1928), 200 Ind. Brown v. State 656; (1933), 585, 587, E. 204 Ind. N. Melville v. State 177; (1909), 184 N. E. 173 Ind. 467; State v. Comer (1902), E. 89 N. E. 90 N. Meixell v. 452; American, 611, 614, 157 Ind. 62 N. E. (1914), etc. Sales 181 Ind. 103 N. E. Co. supra; Needham al. v. Wright (1895), et et al. 510; Ward v. 190, 193, 199, E. 39 N. et al. v. 289, 291; Tippecanoe etc.,
Ind. The Board Co. *15 Lafayette, (1875), 85, The et etc. R. R. al. 50 Ind. Co. 311, 312; v. State 117, 118; (1876), Kelley Ind. 53 77, Brown et al. v. App. (1891), et al. 4 Ind. Underhill Boyd v. 79, 430; 30 N. E. Diamond Flint Glass Co. 479; 488, (1903), App. 485, C. Calla- 30 Ind. 66 N. E.
59 Rice, (1909), 372, etc. han Co. v. Wall Co. 44 App. Ind. supra. 373, 418, E. 89 N. discussing matter, New, properly has
In J. said: party’s plea “It follows that a therefore in entertained, not should be abatement say, is to ought joined upon it, issue unless alleged plea, proven, give facts if would plaintiff pleaded a better writ. It must to the be so defect, plaintiff supply to enable the ... upon plea the mistake which the or avoid is founded.” (1892), 79, App. 77, et al. 4
Brown v. Underhill Ind. 430, supra. N. E. 30 majority opinion bases refusal to consider v. pleа Hopkins in in abatement
the defects App. 676, 248, (1916), 62 Ind. 112 N. E. which Matters if no memorandum filed in substance is holds abatement, plea question no the demurrer holding upon presented This the demurrer. based decisions, etc., Pittsburgh, as follows: Indiana three R. Co. v. 355, (1915), 183 Ind. Home Ins. Co. 108 N. E. v. Wagner (1915), Wagner et al. 109 525; v. Shop (1914), Quality Keeney 47; Clothes E.N. plea No App. 500, N. abate- E. 541. Ind. cases and therefore of these filed in either ment was concerning propriety presented question was no plea to a in abatement demurrer ato memorandum upon proposi- and at least sufficiency thereof or the substantially based. is not decision tion Willoughby, in Ran Judge, the decision I think Ind. N. E. dolph v. Hop decision years after the supra, seventeen correctly impliedly case, states law kins-Matters Hopkins-Matters decision in wholly overrules is overruled or the demurrer whether matter no case *16 60 by
sustained the lower It by court. is likewise overruled Trustee v. State Poer, (1918), rel. ex Hinshaw 188 Ind. 55, 83, supra; 121 N. E. Board Commissioners v. Moore Vigo County App. 180, 93 Ind. 166 779, supra. always N. E. law as it remains has plea “If a been that in abatement is bad from cause against demurrer, as a neither the trial court nor this court is bound the statement of defects contained in memorandum, demurring nor failure pаrty must, necessity, to file a memorandum.” This plea abatement, a be true because of the nature of in requisites stated, many of which support- are well ing as authorities follows: favored, in “Answers abatement are not and particularity therefore the fullness and utmost highest statement, well as as ac- attainable precision, required, leaving curacy nothing and supplied by construction, intendment or to be and anticipate suppos- must and exclude all such alleged would, opposite if matter able plea. plea party, And a defeat in abatement only point plaintiff’s error, must not out but may corrected, point him how it and must show he in avoid the same mistake another out how suit on the same cause of action. There are no plea abatement, presumptions in favor of supplied by nothing struction.” intendment or can be con- Rev.,
1 Practice & Forms Watson’s Works' §558. Pleading Indiana also 1 Gavit’s Practice
See Flanagan’s (d), Pleading Indiana § 140; Cl. 111, p. p. 166, 169; S., Procedure, J. Abate C. § § 30; Dept. ment, 3, p. ex rel. Fin. Inst. v. § App. 557, 565, Sonntag (1935), N. E. presumptions plea “There are no favor nothing abatement, supplied by in- can be plea or A in abatement tendment construction. process cannot be aided other reference to the papers in the case.” Rev., Lowe’s Works Indiana Practice 595, cited in Note (See many 15.13. Indiana authorities § 3). presumptions no plea there are Since in favor of a nothing supplied by in abatement and can be intend paragraphs ment or construction we must take the two *17 plea just in of in abatement case are. We nothing anything them can add nor to take from them by intendment, construction, addition or otherwise. Dept. Sonntag State ex rel. Fin. Inst. v. (1935), 101 of App. 601, supra. Ind. majority 195 E.N. The opinion points paragraph out no averment in either plea, the which if true would warrant an abatement of action, opinion the nor is it contended in the if paragraphs all the averments either or both the plea accepted justifica are as true there would be abating nothing tion whatever for the action. I find paragraph plea either of the that would even tend to judgment abating authorize the action. The record shows that the trial court heard no evidence the plea, attempted judgment abatement but to render judgment abatement as on default. The in abatement general rendered and final in its nature. It leaves provision no relator to rеnew his suit in another place form, or or at another time. It seems to abe permanent abatement. Such is unknown the law. judgment The is therefore erroneous and should be reversed. opinion passes procedural over the errors noted following
and then the court, further error of the trial proceeds to discuss the case on its merits. Since proceed did not case merits, trial on its either complaint demurrer to the otherwise, or answer or position pass upon the never in a was trial court judgment in abatement Also its of the case. merits considering parties then from it as well as barred S., Abatement, J. on its merits. C. the case §§ Practice & Forms Rev., 2, pp. 28, Works’ 29. Watson’s Therefore, the last sentence of 1028, 1029. §§ above, adjudging “that the acts judgment noted legal, complaint valid and con- questioned in said the 1949 General stitutional enactments wholly void. . of Indiana . .” the State rendering a justify the trial court effort In an judg- action in judgment an the same on the merits of immediately it rendered a solemn after had ment says: majority opinion action, abating judgment court, in the trial record made we are ad- “From the appellants appellees considered as vised question proper mannеr used to raise the Legislature, though validity even it acts proceeds It then to cite and unorthodox.” discuss was procedure requested by taken had been where cases agreed party, complaining where he had to the procedure taken. Such cases course hold that he *18 complain heard thereafter be to of the results “regularity steps he had induced reached or objection I have as court to take.” no the law opinion in the cases and text-books cited stated They proposition. However, on this correct. I challenge sincerely anyone the statement that can be by from the record made advised the trial court that the act, word, appellants by any or deed ever indicated they proper by that considered the methods used judgment render final trial court to on the merits of only Appellants’ action, by the case. as shown purports verity, record, which absolute was their to file complaint; present their to file demurrer to each paragraph plea abatement, it and when was plead overruled to stand on the demurrer and refuse to further; appeal They and then from the decision. any were court never able to induce the trial to take they suggested. action or follow course wanted or They firmly upon they what stood believed to be an ruling by court, on the demurrer erroneous trial appealed hope case this court the sincere might be the error is the corrected. Since this only us, thing it record before seems a monstrous majority opinion, intimate, does appellants procedure must the unorthodox abide because only procedure the court to it. induced follow Not is the unorthodox, appellants it is in that unlawful it denied “remedy provided their of due course of law” as Indiana, Art. Constitution like- § process provided wise of “due of law” as Section of the 14th Amendment the Federal Constitution. opinion I think the entire after the summary rather plea consideration the demurrer to the in abate- only. ment is It about dicta a matter that never came trial before the court for In decision. this situation a decision our court give matter cannot life judgment to the void of the trial court noted above. Any decision we make thereon is likewise void. judgment
The should reversed for the errors noted. should back case be sent to the trial court proper issues passed be made and upon, and that judgment may lawful be rendered.
Note.—Reported in
ON PETITION FOR REHEARING Petition denied.
Gilkison, J., opinion. dissents
DISSENTING OPINION Appellants have petition filed a for Gilkison, J. rehearing many pertinent herein for reasons some of procedural of a I which nature have in a answered dissenting opinion opinion heretofore filed. In that I did discuss the case on merits issue its because no presented authorizing pass the trial it was court to general upon case, appearance merits and no appellees. my judges, However, was entered brother gateway court, opened by entered the of error trial attempted case, upon pass and and the merits of the overruling petition rehearing have widened open gateway and opportunity enhanced my duty For reason I it error. feel enter arena forbidden and discuss the case on merits on rehearing. petition for nothing been and There has there is before the court plaintiff’s complaint. proper All but averments therein true, accepted as must be since the decision made upon sufficiency solely of its averments to state a Among of action. cause other averments therein I grammatical paragraphs quote 7 as follows: says further “6. Plaintiff that the said General Assеmbly thereof duly presiding and its elected and officers adjourn day failed to its session at the required by hour as above the above referred provisions Constitution of the State of Indiana, Assembly but that the said General knowledge the full of each and all of the defend- flagrantly herein, purposely, fraudulently, ants did designedly continue the and Senate sessions both and House of the said General respec- until tively, five-thirteen five-sixteen P.M. Wednesday Central Standard time on March period forty-one for a than more hours after the above time as set and fixed the Con- regular stitution of the State Indiana for legal adjournment prolonged thereof which *20 provisions were in violation said sessions of of attempt said Constitution. That an to avoid provisions right said so to and without constitutional do, law, authority and without said of the Assembly stopped and its officers General timepieces places clocks and in their of as- sembly twenty-two at eleven P.M. on March said silly, illegal attempt in a foolish and provisions avoid the of said That Constitution. time-pieces stopped said and were clocks continued twenty-two at eleven P.M. as 9, the date of March of 7, 1949, 1949, until March as aforesaid. says Plaintiff subsequent further “7. midnight the hоur of Monday 7, March the said Assembly General in violation of each and all of referred pro- hereinbefore to constitutional visions, remained continuous session until hour falsely, fraudulently, and date aforesaid and knowingly, willfully disregard and in utter of said provisions, pretended Constitutional func- legal Assembly tion as a General of the State of Indiana, after 7, the said date of March presiding That the officers of each of said Houses accepted resolutions, and entertained and motions bills and that the members of said Houses of said Assembly General voted on each and all of said pretended actions and that a false and record was made of each and all of actions said and presiding the said officers of each of Houses said Assembly falsely, fraudulently of said General and willfully genuineness attested certified to the and correctness of the said actions each of said of houses, actions limitation knowing then and there well said said of Houses were not taken within the provisions of time fixed so of Constitution of the pur- of State That in Indiana. illegal suance of said presid- acts as aforesaid the ing officers each said Houses of the General permitted Assembly journal еntry each of said Houses of a record of each of the resolutions, said actions of motions and bills subsequent made in each of said Houses to mid- night, presiding March 1949. That said officers Secretary have certified each of said actions to the provided law, of State in the as that manner then knowing illegal and there well said action upon people State of Indi- a fraud Assembly that the further said ana. And employees falsely fraudu- by lently officers and journal in its record show- made an official adjourned die eleven ing sine at that the well then and there fifty-nine P.M. March knowing untrue. was false and that said statement passed illegally among the said bills so “That fraudulently violation of above and in and Constitutional Bills following: provisions House were the being budget 380 and numbered functions of the officers of various bills involving expenditure the funds an of Indiana approxi- in the sum of Indiana the State designated being mately $-; Bill House involving Bill Bonus Two Number War World *21 twenty fifteen or other large expenditure and also vari- involving expenditures of and activities bills government the exact of and functions units ous being to unknown provisions thereof nature and referred of said above each and all plaintiff. That having been falsely cеrtified as so bills as illegal Assembly are General passed the said taxpayers of upon and citizens the fraud a and of the violation in direct of Indiana the State of the State of provisions the Constitution of Indiana.” with reference to of Indiana sessions Constitution
The action, affecting Assembly is this the General of follows: Assembly of the General shall be “The sessions capital State, biennially at the of the com- held Thursday
mencing next after the on the first Mon- year eight January, in the one thousand day of day fifty-three, and on the same of hundred thereafter, year unless a different every second appointed by place have been law. day shall Governor, public opinion the if, But welfare it, may, any require at he time shall special a session.” proclamation, call Constitution, Art. Indiana § “The members of shall services, compensation a for their be receive law; compensation no increase of but fixed during the which effect session at such take shall may made. No session of the General increase be Constitution, Assembly, except the first under days, sixty-one beyond extend the term of shall beyond forty special term of session nor days.” Constitution, Indiana Art. 29.§ superb to Edmund In his answer Burke’s “Reflections Revolution,” French on the Thomas Paine in de- explained republic constitution a a fined thus: thing only, “A is not a constitution name but ideal, existence; It has not an real in fact. but a produced be it cannot in a and wherever form, visible thing A there none. is constitution is government government, antecedent and a only creature of a constitution. consti- country govern- the act tution people constituting government. ment, but a you elements, body refer, to which can It is the and by article; quote and which article contains government principles on which shall be manner in which it shall be established, have, powers it organized, shall mode elections, parliaments, or the what durations of called; powers bodies name such other part government the executive shall which fine, everything have; and, in that relates organization government, of a civil complete *22 act, it shall which principles on which constitution, therefore, A is to a be bound. it shall made government, laws afterward what judicature. court The government are to a laws, neither judicature does not make court conformity them; only it acts in it alter can made; government in like manner and the laws italics). (My constitution.” governed “Rights 1791, pages 48 and of Man” 49. fifty-eight
In years elapsed the one hundred that have explanation since made, nothing this definition and was greater clarity simplicity any has issued from subject. source on this For similar see 16 definitions S., Law, 1, p. 20, 3, C. J. p. 21; Constitutional 11 Am. § § Jur., Law, p. Many Constitutional 602. similar §2, explanations given definitions and have been quote court. From some of these I as follows: . . On this continent we came to the time when people, by revolution, the ereignty, took to themselves sov- exercising supreme and in political power governments by chartered written constitutions. organic These guaran- instruments declared and rights teed individual, and liberties of the people through which had come to the centuries of struggle against government. absolutism in The majority limitations which rights. rule, was to but under restraints preserved minority to the ‘By they establish, the constitution which only up agen- tie the hands of their official cies, well; but their own hands as and neither the State, people officers nor the whole as an aggregate body, liberty are at to take action in opposition Cooley, to this fundamental law.’ (7th ed.) government Const. Lim in- 56. The so representative stituted was it— of the creator of people. agencies agents for admin- istering people’s agents. it were the ...” Ellingham Dye (1912), v. 99 N. E. system “In our of government, a written con- highest expression stitution is the of law. None directly other sovereign people emanates from the themselves. It is the deliberate and affirmative sovereign majority. utterance of the It un- seems say sovereign natural majority, designedly permanent, authors of the the funda- mental, safeguards mand the organic law, intended that of its abrogated by should be a failure to de- abrogation; contrary, ... On the one expect provision would the charter our
69
liberties should
sovereign
stand unaltered until the
majority, by
action, expressed
affirmative
their
for,
effected,
change.
desire
and
. . .”
Denny
In
(1900),
Re
104, 108,
“The Constitution of the United States is a law people, equally rulers in war peace, and in and covers with protection the shield of its all men, times, classes of stances.” all at and under all circum- Ex 295. Milligan Parte (1866), 2, Wall. 18 L. Ed. Supreme
The Alabama Court correctly has said: “Every in officer government, from the exe- cutive to the magistrate, humblest charged, sphere, extent of his preservation with the rights.” constitutional Langham Sadler v. (1859), quoted Ala. approvаl in Banks v. State 207 Ala. So. 24 A. L. R. Quoting again from our court: .“. . discretion of Courts is more restricted applying plan rules of construction to a government contained in constitution, a written than in the construction of statutes. And the rea- son conclusive. Statutes hastily often
unskillfully drawn, and thus need construction to
make them sensible. But
import
constitutions
utmost discrimination
language.
in the use of
‘They
permanent
are the
people,
will of the
in-
guidance
tended for
posterity.’
Thus, Mar-
shall,
J.,C.
in relation to the Constitution of
the United States:
‘The framers of the constitu-
tion,
people
adopted it,
and the
who
must be under-
employed
stood to have
words in their natural
sense,
to have intended what
said.’ Gib-
Ogden,
bons v.
People. ‘Written constitutions will soon become of
*24
value,
injunctions
lightly
little
overlooked;
dary
if their
may be
experiment
setting
a boun
power
prove
will
failure.’
construing
language
“. . . In
of the constitu-
tion,
argument
nothing
Courts have
to with the
do
duty
declare,
from inconvenience. Their sole
ita lex
is to
seripta
est—thus
saith
constitution.
People Morrell,
v.
Therefore, say we with truth that the Constitu- tion of people Indiana is state, a command of the providing government. government their The state necessity people is of creature of the created their written In constitution. this case the at- creature is tempting overrule, defy and control I its creator. cannot possible. understand how this can ever be This by Hovey, court properly J. has said: long “It has since beautifully been declared high authority, corrupt that ‘a bring tree can not good forth fruit.’ An provision unconstitutional can not be the basis proceedings.” of lawful Green- castle Township et al. v. Black 564, supra. By the written people constitution the of the state have commanded the creation of departments the three definitely they government; have commanded rights department certain and that be vested with each duties; charged performance of certain each be definitely commanded de- likewise each have but obey prohibitions. partmеnt certain limitations alleged violation of the latter command of an It is with carefully people recorded state constitu- as in this case. That limitation concerned tion that we are prohibition contained in- the sentence of last Constitution, thus: 29 Art. of the State Section Assembly, except “No, session the General beyond Constitution, shall extend under this first sixty-one days, any special session term nor (My italics). forty days.” beyond the term of power self-executing prohibition is a This act. session or to continue the General granted, powers its acts long it acts within the So *25 espe- beyond powers, and those it acts are valid. When open defiance in contravention cially when it acts constitution, its acts are prohibition positive of the aof revolutionary necessarily void. rule is so ele- This require authority mentary it not the citation of should paucity of authorities is because to it. The sustain thirty-three years during hundred of our State’s the one existence, Assembly have never members of the General expiration attempted enact after the to laws before activity. the time allotted the Constitution such learn members of far as we can So comparable legislative body or of no state attempted in the nation have ever to un- exercise such single power, exception lawful with of the members Legislature of the State of Florida. When an Act Legislature passed the members of the of that state elapse of the time after the allotted the state con- activity falsely and which was au- stitution such placed thenticated and in having the records as been properly day session, enacted the last came Supreme Florida, ap- before the Court of that court proved attacking attempted an action laws so to be enacted, adjudged proper that should action legislative taken to correct the records involved make speak Landis, Atty. the truth. rel. them State ex Gen. v. Thompson 561, 564, 565, (1935), 121 Fla. So. 192. authority appears only It thus direct on the agreeable point question my position. Commenting Thompson, on the State ex rel. Landis v. supra, decision, Supreme Court of Florida later said: “The rationale of that decision was that if the
Legislature
power
has no constitutional
to further
legislate,
regard
further
act as such with
legislative proposition
any
after its constitutional
days
out,
sixty
then, by
term of
same
non-constitutional
it becomеs
has run
token,
may
Legislature
no mere record it
make of its
sitting
as a
after
greater
can rise to
functus officio
evidentiary dignity in the consideration of the
setting
than
courts
rise.
the unconstitutional
itself could
Accordingly it
was held
since the courts
judicial
bound
take
under
law to
notice of
legislative records,
only
but notice
of constitutional-
ly
absolute
Legislature,
importing
made
records
as
contents,
verity
in their
are necessar-
power
ily
appro-
inherent
invested with
to use their
priate judicial
of
case
expunge
processes
range
from
judicial
appropriate
their
observation
an
any purported legislative journal
entries that
contemplation of
law a record
were
made
as
Legislature
during
what
constitu-
did
tionally
sitting
legislative
assem-
authorized
bly.”
Cunningham
Davis,
ex rel.
et al. v.
Jr. et al.
*26
123 Fla.
I “that the the court judicial law; presumed public it notice of takes is, duty it it But in know what is its to know it.” us, complaint the case averments the before considering issue, must be taken true. So as complained public law laws could not become state, attempted of the were to be enacted Assembly members, after the had be- officio, open come and utter contravention functus prohibitions express and defiance contained of the the last 29 Art. the Indiana sentence Section taking Constitution, supra. If we follow rule of judicial majority public quoted notice of law as opinion above, and noted we must in the instant case accept follow the further rule that we must true pleaded complaint, par- well facts contained in the ticularly grammatical paragraphs So, 6 and 7 thereof. attacked, wholly we must know that the laws spurious judicially and should be void. For declared expiration after people of the time the state regular the constitution have allotted session, Assembly the members of the have more no authority group enact laws than other of citi- zens of the state. Should the General within pass time allotted constitution fail adjourn Me, steps motion sine constitution *27 effectively performs duty it. con- The commanding people the voice of of stitution the the state.
I think it majority is the law as stated in the opinion proper “that a authentication an of enrolled conclusive, as a matter act is of law that the act was duly passed conformity in to the constitution.” But presumption there is no such of conclusiveness unless the proper. complaint authentication is The case this directly improper the attacks authentication the of questioned procedure. I laws think we as a court perform duty upon have failed pass our we unless particular point attack, pass upon of it light prohibitions the of the constitutional aforenoted. people The have no other flowing defense to the evils usurpation power by from the of the members of Assembly, impartial by General but enforcement of the constitution. opinion majority pоsition takes
The that we are false and bound fraudulent authentication of questioned position Acts. I think this only is not exceedingly ominous, erroneous but is a violent assault constitution, open upon approval an upon of fraud people, government special a favor at the ex- pense quite freedom that unpredictable of lead stealthy It. upon, results. encroachment and a gradual depreciation people’s rights under the constitution. Banks v. State Ala. 1362, supra. 24 A. L. R. So. As the case is clearly appears questioned it us the Acts before agreed upon by the were members after the constitu- regular tional close session of 86th authentication, Assembly. false The the members adjourned constitutionally Assembly, gives them validity validity whatever. In no this case the of an general regularly passed special Act either a ses- us, irregularly is not before authenticated but sion majority opinion cited and the authorities applicable in this case. proposition are not spurious us, questions a'whole series before matter spurious procedure upon, agreed course Acts Assembly after the General the members had regular session close the constitutional рrocedure and this Acts make these effort to and the method and fraudulent false laws valid *28 Assembly The General predating authentication. their committing fraud charged a fraud. The with is by after the ses- its members charged was committed constitutionally ended. was sion conceding pro- truth of unusual Apparently the the complaint, ceedings charged probably and also equally partial position excuse for the unusual of as a majority, opinion expedience by the taken the asserts: Assembly their “If members of the General violate adjournment, duties on can be de- constitutional election, up the next time such come feated offices remedy gem not with the courts.” This of but gratuitous suggested thought quite remedy and the remedy at all. The unlawful is no action has been damage flowing injury and taken and therefrom. erring ensuing at The defeat of members elections eliminate would no manner the foisted laws. The great acknowledged evil is so as to seriously threaten people’s government. existence of a the continued gives majority opinion stamp approval to this by of conduct course members of the General As- permanent sembly adjournment after the of the ses- gives adoption It license for the sion. of this course procedure by future members of the General As- sembly judicial and be cited authority therefor. If the members of the General violated the by stopping constitution continuing and clocks operate days for two after its constitutional close following time, “stopped has clocks” this court thing precisely done the same and committed same majority opinion. usurpation error This power express prohi- defiance of constitutional legally, can bind bition noted no one but is a serious government. threat to constitutional performance of The faithful official duties com- by the constitution is in no manded sense an assertion superior purity the courts. The Constitution charges many very the state courts definite duties, some which are: open; “All every man, courts shall be
injury reputation, person, to him in property done his remedy shall have due course of freely, law. without Justice shall administered purchase; completely, denial, and without speedily delay.” and without Constitution, Indiana Art. 12.§ court, duty duty It is a was of the trial court, open plaintiff’s relator, to be to the not to brush hearing, give him off without a but to him *29 being people represents, he state, all the citizens of the remedy “by their course of They due law.” were and justice “completely are entitled to and without denial.” majority opinion indicates, I as refuse to believe rights that of a citizen or of all the like citizens questioned may those here or denied abused without rights remedy. denied, If such can be so then our meaningless—a thing only, constitution in name having ideal, an but not a real existence.
Simply question presented stated the in this case— considered its merits—is whether the members Assembly, the General after the constitutional close regular session, may by simple process of a clocks, stopping remain in session lawfully and period days thereafter, for a function two and agreed upon whether laws and other action taken during period such members is made valid having falsely fraudulently it and dat- authenticated having ing days Among it as been done two earlier? majority opinion other excuses the seems to hold that because the fraud was committed the General department Assembly govern- correlative this of state by ordering not ment interfere the correction of produced. fraud elimination or the laws it agree law, I do not with this statement of the While question not discuss it I shall because is not casе, us in not have before we do a General except when the members thereof are in agreeable general special or session either with Constitution, 4, supra. 9 and Sections Art. session, general special, They not in either or were pro- All March the fraudulent and after Acts agreed complained upon by of were the con- cedure adjourned stitutionally members on March 8 and totally legislative power. when were without predating fraud consisted Their authentication appear having them Acts to make as been these prior the Constitutional close of the enacted session. approves majority opinion apologetically this con- attempts spurious validate these acts. duct basically say erroneous to It is courts are remedy power to violations of without constitutional prohibitions by limitations officials members legislative executive, departments of the state brought government. such When violations before directly duty act; in this it us as done case is our rely upon perform- mere inertia to excuse approve duty. adopt own, positive my I ance of Appeals re- statement the Alabama Court of *30 duty admitted spect when faced with the court’s case, follows: in this facts forgive, condone, power the vio- heal or “The unambiguous plain, mandates, prohibi- lation of is denied or limitations of Constitution tions although state, judges and may to the courts greatest good, result such violation may promote a universal benefaction.” (1921), 207 Ala. Banks v. State A. L. 93 So. 1364, supra. Bradley R. See also Taylor 580, 428, (1949), 227 Ind. 2d v. 84 N. E. cited; Hoy v. State cases E. 2d 915. 75 N. However, majority opinion now becomes the course, state. Of if the members law of the Assembly may legally enact laws this man- days after constitutional ner two close of the ses- sion, they may beginning until continue to do so regular twenty-two nearly session the next months perpetual later, be state burdened with a and the without the General lawful session providing change Constitution therefor. I in the State opinion may majority authority be cited as think procedure. then What becomes course for this Answering again, say we must constitution? state only fact and an becomes ideal. to exist it ceases destroyed by own creatures—the members It is Assembly. I cannot follow this adjourned General an rehearing petition should revolutionary idea. The judgment should be reversed. and the sustained rehearing Note.—Dissenting opinion petition for N. E. 2d reported in 89