61 Neb. 679 | Neb. | 1901
This is a rehearing. The former opinion of the court, together with a statement of the facts, will be found reported in 60 Nebr., 327.
With an acerbity that lends not force to the argument, counsel for respondent Frank except to the opinion of
The points argued by counsel in their briefs on rehearing are:
1. The yeas and nays were not entered on the house journal as the. constitution requires, at the time the bill passed the house, where it originated.
2. The house never concurred in the senate amendments, after the bill was returned by the latter, and never passed the bill as it was enrolled and signed by the governor.
8. The body of the act is broader than'its title.
4. It is special legislation, so far as concerns respondent..
The record before us discloses the fact, although the journal does not show it, that the yeas and nays were recorded on the third reading in the house, but that portion of the journal which contained such entry is missing. It is doubtless the duty of the courts to take judicial notice of the laws enacted by the legislature, and of the records kept by the two branches thereof. To enable the court to ascertain what was done by the legislature, it may call to its assistance evidence of the character of that produced on the trial below. This evidence did not contradict the house journal; it merely established the record as in fact made by the legislature. It is fallacious to argue that such evidence contradicts the record; it merely supplies missing parts thereof and enables the court to know what the record in fact was when the legislature made it, not what it is after having been mutilated, through either accident or design. To hold that such evidence is not competent would result in the absurdity that, in case the journals of a session should be destroyed, all the acts passed at that session would be invalidated.
But, it is urged, this objection does not apply to the second point made, to-wit, that the house never concurred in the senate amendment. To this we can not assent, for the journal was in this respect discredited; at least evidence of such a character touching its integrity is adduced, in fact is supplied by the record itself, as required of respondent an explanation of its condition, and none is forthcoming. It is true there is no affirmative evidence in the journal to prove that a vote was taken by the house on the senate amendment, after the bill Avas returned to the house. Neither was there an attempt,' except that afforded by the mere silence of that record, to prove the contrary, that no vote was taken. But, the journal itself proves that after the bill was returned to the house, accompanied by the usual message of the senate calling attention to the fact that the latter had amended the bill, and asking for the concurrence of the house therein, there appears in that portion of the journal wherein a vote on the senate amendment would, or at least could naturally
We now pass to the consideration of the third point made in the brief on rehearing; that the body of the act is broader than the title, and, therefore, contravenes the constitutional mandate found in section 11, article 3, of that instrument. We will not attempt to follow closely the reasoning in the former opinion, but will answer such objections as seem to need it, and give some of the reasons which prompt the court in adhering to that opinion, so far as relates to this point. Counsel insist that that portion of the act which requires the clerk of the district court to report the amount of his fees at stated intervals to the county clerk, with what follows thereafter, is not germane to the original section 3 which it purports to amend, but is germane to section 1. It is argued that section 3 is a mere schedule of fees, and in and of itself does not profess to designate the persons to whom they shall belong, while section 1 does. This, with some others of the matters contended for by counsel, is probably true, but the trouble with the argument of counsel is that it assumes that section 1 is complete in itself and that section 3 is not, while, as a matter of fact, neither
Nor do we think the act is special legislation as re
The former opinion is, therefore, adhered to.
Reversed.