10 Nev. 176 | Nev. | 1875
By the Court,
The respondent is sheriff of Ormsby County. As such sheriff it is his duty, upon proper demand and tender of the amount prescribed by statute, to issue licenses authorizing the holders to conduct certain banking games, including the game of faro. The relator, a citizen of Ormsby County, made a proper demand upon the respondent for a quarterly license to conduct a game of faro in Carson City, in said county, and at the same time tendered in payment therefor the sum of two hundred and three dollars and fifty cents in gold coin. The amount thus tendered was sufficient to entitle the relator to the issuance of the license, as demanded, provided section 4 of the gaming act of 1869 ’(2 Compiled Laws, 3292) is still in force. But among the regularly certified enrolled and published acts of the last legislature is one entitled “An act to amend ‘An act to restrict gaming,’ passed March fourth, eighteen hundred and sixty-nine, and all acts amendatory thereof.” By the second section of this act, section 4 of the act of 1869 is so amended as to require payment of four hundred dollars for a quarterly gaming license.
Assuming the validity of this enactment, the respondent
If this Court, for the purpose of informing itself of the existence of a public statute, or testing its validity, is at liberty to look beyond the statute-roll, solemnly attested in accordance with the provisions of the Constitution, and is bound to give controlling force to the entries in the legislative journals, then, in this case, it does clearly appear from an examination of those journals that assembly bill No. 138, entitled as this act is entitled, was finally passed in the terms in which it was introduced, after the rejection of an amendment proposed and originally adopted in the senate. But as the journals do not purport to contain the language or even the substance of either the bill or the amendment— only referring to it by its number and title — they cannot, by themselves, as a matter of course, impeach the enrolled act, for the two are easily and completely reconciled by supposing that the bill was originally drawn in the terms of the enrolled act. We are accordingly asked by the relator to go a step further, and look at a paper now in the office of the secretary of state, purporting to be the original bill as introduced into the assembly—
Such being the marks of its identity, we are satisfied that it is what it purports to be — the original bill for the act in question. Its contents, except in the second section, are the same as those of the enrolled statute. That section, as originally drawn, is crossed out by pencil-marks, and over it is pasted to the margin of the paper a tag, on which is ■written, “ Strike out section two and insert the following.” Then follows section two of the enrolled act, which differs materially from the original section, not only in respect to the amount to be paid for a quarterly gaming license, but in other particulars. On the margin of the tag these words appear in pencil: “Adopted in senate.” This seems pretty clearly to identify the contents of the tag or rider, and of section two of the enrolled bill with the rejected senate amendment; and it follows, therefore, on the assumption that these matters, extraneous to the statute-roll, must be noticed, that the bill passed by the legislature was never approved by the governor, and that the bill approved by the governor was never passed by the legislature; and, conse
It results, therefore, that the question of law directly presented for our decision, relates solely to a rule of evidence. How is a court to be satisfied as to the existence and terms of a statute ? Is it bound by the statute-roll, or can it look beyond that record? And if so, how far can the investigation be extended? The importance of these questions in their general bearing cannot easily be overestimated. The determination of this particulai; ease may affect very slightly the public revenues or the public morality, but it is a matter of very great moment to every citizen of the State, that on the first presentation of the question here, this court should lay down a correct and safe rule by which he may determine what that law is Avhich is to bind him in all his transactions, giving its construction to his agreements, limiting the measure of his rights, and his mode of redress where his rights are invaded. For whoever engages in any transaction the validity or construction of which depends upon statutory provisions, whoever holds or acquires any sort of property, or right, the title or enjoyment of which may be affected by the operation of any law, is bound to take notice, at his peril, what the law is. And it is not enough for him to know what the law is after a court of last resort has made an investigation and determined what part of the statute-roll is to stand and what part to fall, but he must know in advance of litigation, and govern his conduct accordingly. If there is any record or document outside of the statute-roll to which a court will resort for the purpose of testing the validity of an enrolled law, he must not overlook it. If a court w'ill hear oral testimony to impeach the record, he must be able to conjecture in advance what the testimony will be, and what weight will be allowed to it. Considering the exigency of this rule it is easy to perceive of what extreme importance it is that there should be some high, authentic and unquestionable record to which not only courts and
In obedience to these provisions of the Constitution, each house of the legislature keeps a journal, which is authenticated by the signature, to the minutes of each day’s proceedings, of the president and secretary in the senate, and the speaker and clerk in the assembly. These minutes, except those of the last day’s proceedings of each session, are usually read over in the presence of the respective houses, and an opportunity given of correcting them before they are signed. Their correctness has, therefore, the implied sanction of the entire body of each house. But, in point of fact, they are often read and signed in the absence of many members whose votes they record; and the minutes of the last day’s proceedings, which are never corrected for want of opportunity, often relate to the final passage of the most important and essential bills — such, for instance, as the appropriation bills. Obviously, then, the journals have no greater intrinsic value as evidence" than the enrolled bill, which, in compliance with the above-quoted provision of the Constitution, is signed and attested by the very same officers who sign the journals.
These provisions of our Constitution and the practice thereunder, it will be observed, are substantially identical with those of other States whose decisions are to be noticed. The following authorities are referred to: In New York:
After describing the enrolled bills in language strictly applicable to those of this State, and reciting the provisions of the constitution as to the keeping and publishing of journals and the mode of passing bills, the court proceeds to say: “These are all the constitutional requirements relating to these diaries, and it will be observed, that with the ex
“From this comparison, it seems to me impossible for the mind not to incline to the opinion that the framers of the constitution, in exacting the keeping of these journals, did not design to create records which were to be paramount to all other evidence with regard to the enactment and contents of laws. At the time of the formation of the constitution, the mode of authenticating statutes by copy enrolled in the office of the secretary of state was completely established by common usage and by the sanction of its antiquity; and it was also obvious that a copy of an act thus enrolled was, in every essential particular, almost identical with a roll of parliament, which it was well known was not only admissible in evidence, but was conclusive as to the existence and provisions of the law which it embodied. Possessed of this knowledge, it is difficult to believe that the eminent jurists who, as delegates, helped to frame the constitution of 1844, meant to substitute a journal which was devoid of all the ordinary marks of authenticity, considered as a means of proof in a court of law, for a record which, in point of evidential efficacy, had no superior. If intended as evidence for any purpose whatever in any course of judicial investigation, can any one conceive that these registers would have been left in the condition in which by the constitution we find them ? In the nature of things they must be constructed out of loose and hasty memoranda, mad.e in the pressure of business and amid the distractions of a numerous assembly. There is required not a single guarantee of their accuracy or their truth; no one need vouch for them, and it is not enjoined that they should be either approved, copied or recorded. It must be admitted, I think, from these considerations, that a strong presumption arises that it was not the purpose of those who framed the consti
“But independent of this question of intention as exhibited in our primary law, the more general inquiry arises, can the court resort to this source of information to satisfy itself on the point whether a legislative act has been thus constitutionally passed? The first consideration which naturally suggests itself in this connection is, that the legislature has, with care and a wise precaution, adopted a mode of certifying its own acts in an authentic form. And, indeed, so completely has this purpose been effected, that it appears hardlypracticable to suggest additional safeguards. To the correctness of the present bill, for example, we have the signature of the presiding officer of each house. In its present form it was exhibited to the governor as the bill which had been enacted, and as such received his approval, as is evidenced by his signature. It was then immediately made public by being filed in the office of the secretary of state. These are the sanctions which the legislature has provided for the authentication of its own acts, both to the public and to the judicial tribunals; and the question is therefore presented whether such authentication must not be deemed conclusive; or, in other words, whether the legislature does not possess the right of declaring what shall be the supreme evidence of the authenticity of its own statutes.” [The case is stronger in Nevada, for here the constitution itself prescribes the mode of authenticating the statutes, and provides not only that they shall be signed by the presiding officers of the two houses of the legislature, but also by the secretary of the senate and the clerk of the assembly (Art. IY, Sec. 18).]
‘‘ This question, in my opinion, must be answered in the affirmative. How can it be otherwise? The body that passes a law must of necessity, promulgate it in some form. In point of fact, the legislative authority over the certification of its own laws is, of necessity, almost unlimited, as
The court then proceeds to remark how incomplete, and how much exposed to the chances of inaccuracy and mistake,,the journals are and must always be. After which it continues:
*191 “ Can any one deny that if the laws of the State are to be tested by a comparison with these journals, so imperfect, so unauthenticated, that the stability of all written law will be shaken to its foundations? Certainly no person can venture to say that many of our statutes, perhaps some of the oldest and most important, those which affect large classes of persons, or on which great interests depend, will not be found defective, even in constitutional particulars, if judged by this criterion. The misplacing of a name, on a nicely-balanced vote, might obviously invalidate any act. What assurance is there, therefore, that a critical examination of these loosely kept registers will not reveal many fatal errors of this description? In addition to these considerations in judging of consequences, we are to remember the danger, under the prevalence of such a doctrine, to be apprehended from the intentional corruption of evidence of this character. It is scarcely too much to say that the legal existence of almost every legislative act would be at the mercy of all persons having access to these journals, for it is obvious that any law can be invalidated by the interpolation of a few lines, or the obliteration of one name and the substitution of another in its stead. I cannot consent to expose the State legislation to the hazards of such probable error or facile fraud.
“The principal argument in favor of this judicial appeal from the enrolled law to the legislative journal, and which was much pressed in the discussion at the bar, was that the existence of this power was necessary to keep the legislature from overstepping the bounds of the constitution. The course of reasoning urged was that if the court cannot look at the facts and examine the legislative action, that department of government can, at will, set at defiance, in the enactment of statutes, the restraints of the organic law. This argument, however specious, is not solid. The power thus claimed for the judiciary would be entirely inefficacious, as a controlling force, over any intentional exorbitance of the lawmaking branch of the government. If we may be permitted, for the purpose of illustration, to suppose the legis*192 Lature to design the enactment of a law in violation of tlie principles of the constitution, a judicial authority to inspect the journals of that body would interpose not the slightest barrier against such transgression; for it is obvious that there could not be the least difficulty in withholding from such journals every fact evincive of such transgression. A journal can be no check on the actions of those who keep it, when a violation of duty is intentional. It cannot, therefore, fail to be observed how inadequate to the correction of the supposed evil is the proposed remedy. Besides, if the journal is to be consulted, on the ground of the necessity of judicial intervention, how is it that the inquiry is to stop at that point? In law, upon ordinary rules, it is plain that a journal is not a record, and is, therefore, open to be explained or contradicted by parol proof. And yet, is it not evident that the court could not, upon the plainest grounds, enter upon such an investigation? In the case now in hand, if the offer should be made to prove by the testimony of every member of the legislature that the journals laid before us are false, and that, as a matter of fact, the enrolled law did receive, in its present form, the sanction of both houses, no person versed in jurisprudence, it is presumed, would maintain that such evidence would be competent. The court cannot try issues of fact; nor, with any propriety, could the existence of statutes be made dependent on the result of such investigations. With regard to matters of fact, no judicial unity of opinion could be expected, and the consequence would necessarily be that the conclusion of different courts, as to the legal existence of laws frqm the same proofs, would be often variant, and the same tribunal which to-day declared a statute void, might to-morrow be compelled, under the effect of additional evidence, to-pronounce in its favor. The notion that courts could listen upon this subject to parol proof is totally inadmissible, and it therefore unavoidably results that, if the journal is to be taken into consideration at all, its effect is uncontrollable; neither its frauds can be exposed, nor its errors corrected. And if this be so, and the journal is to*193 limit the inquiry of the judicial power, how obvious the inadequacy, if not futility, of such inquiry? In my estimation, the doctrine in question, if entertained, would, as against legislative encroachments, be useless as a guard to the constitution, and it certainly would be attended by many evils. Its practical application would be full of embarrassment. If the courts, in order to test the validity of a statute, are to draw the comparison between the enrolled copy of an act and the entries on the legislative journal, how great, to have the effect of exploding the act, must be the discrepancy between the two? Will the omission of any provision, no matter how unimportant, have that effect? The difficulty of a satisfactory answer to these and similar interrogatories is too apparent to need comment. And again, to notice one among the many practical difficulties which suggest themselves, what is to be the extent of the application of this doctrine? If an enrolled statute of this State does not carry within itself conclusive evidence of its own authenticity, it would seem that the same principle must be extended to the statutes, however authenticated, of other States. An act, therefore, of Virginia or California, with regard to the mode of its enactment, would be open to trial as a matter in pais. And indeed, the doctrine, if carried to its legitimate conclusion, would seem to abolish altogether the conclusiveness even of international authentications, for if the great seal of this State, attesting the existence of a statute, is not final, it is not perceived how a greater efficacy is to be given to the seal of a foreign government.
“In addition to the foregoing observations, I cannot close this part of my examination of the question under discussion without adverting to a further consideration, which to my mind ajspears to be entitled to very great, if not decisive weight. I here allude to the circumstance that, in the structure of the government of this State, the judicial and legislative departments are made coequal, and that it nowhere appears that the one has the right of supervision over the other. It is true, as was much pressed on the argument, that the legislative branch may willfully infringe*194 constitutional prescriptions. -But the capacity to abuse power is a defect inherent in every scheme of human government, and yet, nevertheless, the forces of government must be reposed in some hands. The prerogatives to make, to execute ánd to expound the laws must reside somewhere. Depositaries of those great national trusts must be found, though it is certain such depositaries may betray tbe trust thus reposed in them. In the frame of our State government the recipients and organs of this threefold power are the legislature, the executive and judiciary, and they are co-ordinate — in all things equal and independent; each within its sphere is the trusted agent of the public. With what propriety, then, is it claimed that the judicial branch can erect itself into the custodian of the good faith of the legislative department? It is to be borne in mind that the point now touched does" not relate to the capacity to pronounce a law, which is admitted to have been enacted, void, by reason of its unconstitutionality. That is clearly a function of judicature. But the proposition is, whether, when the legislature has certified to a mere matter of fact, relating to its own'conduct and within its own cognizance, the courts of the State are at liberty to inquire into or dispute the veracity of that certificate. I can discover nothing in the constitution, or in the general principles of government, which will justify the assumption of such superior authority. In my opinion the power to certify to the public the laws which itself has enacted, is one of the trusts of the constitution to the legislature of the State.”
This able opinion of the Chief Justice of New Jersey is reinforced by a concurring opinion of one of the associate justices, in which the argument is further illustrated and enforced. It is sustained by the amplest citation of authorities, and by the conclusions independently reached upon the same line of argument, by the Supreme Courts of California, New York, Indiana and Wisconsin. It fails to notice only one consideration urged upon the hearing of this ease, and that is, that besides the necessity of looking to the.journals for the purpose of restraining the legislature
The leading case in favor of the new departure is that of Spangler v. Jacoby (14 Ill. 297), and it is especially deserving of our attention because it gave a construction to provisions of the Illinois Constitution substantially identical
The Constitution of Illinois, like our own, provides that “each house shall keep a journal of its proceedings;” that “on the final passage of all bills the vote shall be by ayes and noes, and shall ,b© entered on the journal; and no bill shall become a law without the concurrence of a majority of all the members elect in each house.”
From these provisions it is concluded that thejournals, being required to be kept by the Constitution, and to show affirmatively a majority vote in favor of the final passage of every bill, are records of as high authority at least as the enrolled bill, and that where they fail to show a majority voting for the bill on its final passage in either house, the act falls to the ground. The utmost extent to which this decision goes, however, is, that the journals may be looked to to see if they contain the evidence which the Constitution requires they should contain of the final passage of the bill; and they may be looked to because they are records. It is not hinted that the court may look beyond the record. The decision is based partly upon reasons drawn from the nature of the constitutional provisions, and partly upon the assumption that it is supported by authority.. As to the constitutional reasons, they have been noticed in another connection. As to the authorities it is to be observed that the English authorities are not alluded to. The American authorities cited are: State v. McBride, 4 Missouri, 303; Green v. Graves, 1 Doug. (Michigan) 351; Purdy v. People, 2 Hill, 31, and 4 Hill, 384. Of these three cases the Missouri case alone even seems to sustain the doctrine in support of which it is cited; and if it ever did sustain it, it has been overruled by a more recent case in the same State (Pacific R. R. v. Governor, 23 Mo. 353). But in truth it
Tbe only point decided in tbe Michigan case is, that tbe legislature bad no power under tbe Constitution to pass a general incorporation law. Tbe Constitution required that every act of incorporation should receive a two-thirds vote. It was held that this required every corporation to be created by special act.
Replying to an argument that an amendment to this general act, so held unconstitutional by recognizing existing associations formed under its provisions, might be regarded as specially creating corporations out of tbe associations so recognized, one of tbe judges expressed tbe dictum, not concurred in by tbe others, that tbe amendment could not be held to operate as a special creation, because, under bis own construction of tbe Constitution and tbe practice of tbe legislature, tbe amendment might have been passed by a bare majority. It was not suggested that tbe court could inform itself by looking at tbe journals.
Tbe New York case referred to, like all tbe other cases decided in tbe same State, not only does not sustain tbe Illinois court, but all its implications are to tbe contrary.
Later decisions in Illinois follow Spangler v. Jacoby with some dissent, or at least with some reservation of opinion on the part of individual judges, (17 Ill. 151.) It should be noted also, that tbe case of Spangler v. Jacoby lacks tbe sanction of Judge Trumbull’s concurrence. (See note prefixed to tbe volume in which it is reported. See also 19 III. 283; 43 Id. 97; 62 Id. 253.) In Minnesota tbe doctrine of the Illinois cases is carried a long step forward. There it is held (Supervisors v. Keenan, 2 Minn. 331) that a court will examine tbe legislative journals to see if a bill has been read three times before its final passage. Tbe opinion in this case also totally ignores the English authorities, but cites a long list of New York cases, not one of which lends tbe slightest countenance to tbe doctrine asserted; and this illustrates its value as an authority.
In Alabama (Jones v. Hutchinson, 43 Ala. 721) tbe point
In Arkansas (Burr & Co. v. Ross & Leitch, 19 Ark. 250) a public statute was set aside on the evidence furnished by the journal of the assembly that in that house the bill had been indefinitely postponed. This was done without any discussion of the question involved and upon the sole authority of the much-abused New York cases, which are here again made to do unwilling duty on the wrong side.
In South Carolina (State v. Peatt, 2 S. C., new series, 150) a majority of the Supreme Court hold that a court will not only correct an enrolled act by comparison with the legislative journals, but that it will look beyond the journals to the original bill, and they hold also that they can set aside part of the law and uphold the balance. In this and other respects they go entirely beyond all precedent. They in fact ignore all precedent and attempt to sustain themselves by arguments drawn from the nature of courts and constitutions in general, an attempt in which they seem to me to have signally failed, as is clearly shown in the able dissenting opinion delivered by the Chief Justice, in which the authorities are carefully reviewed.
In New Hampshire the judges of the Supreme Court have twice unanimously held, in official opinions delivered in response to inquiries from the governor and council, that enrolled acts of that State were invalid because the journal of one house did not show a concurrence in amendments adopted in the other. The authorities are not referred to in the opinions, but are collected in a note by the reporter, and seem to have been consulted; so that in one particular these decisions are entitled to more respect than most of those on that side. (35 N. H. 579; 52 Id. 622.)
But all these decisions, if they are decisions, are overruled by the late case above referred to, which exposes the absurdities into which the court has been led in following out the new doctrine.
In Michigan the Supreme Court was asked to declare a law inoperative, because, as was alleged, some of the members of the majority in the legislature by which the bill had been passed had not been legally elected. In other words, the court was asked to reinvestigate in this collateral proceeding the title of the members of the legislature to their seats. Of course the court held that upon that matter the action of the legislature was conclusive, and sustained the law. But without any occasion to do so, Judge Cooley, who delivered the opinion, went out of his way to say that a printed statute is not even of prima facie validity when the journals show that some constitutional formality was wanting to its passage. And he, too, cites a list of the New York cases in support of this dictum. (18 Mich. 481.) Judge Cooley, as a text-writer, also lays down the same doctrine, and sustains the' text by a similarly unfortunate citation of authorities. (Cooley’s Constitutional Limitations, 135.)
From this review it appears that the doctrine contended for has been upheld by decisions in six States and by dicta in one. But it also appears that most of the decisions are of slight authority.
But even if we admitted the correctness of the decision in Spangler v. Jacoby, upon the- constitutional grounds upon Avhich it is placed, it would not help the relator in this, case, for it is there only held that the journals can be resorted to because for certain purposes they are made by the Constitution a record of as much sanctity as the enrolled laws. Here a reference to the journals alone shows no discrepancy between the enrolled act and the act passed. To discover the
The Kentucky case to which we are referred (5 Bush. 680) notices the question, but does not decide it.
The decision of Judge Thurman (3 Ohio State, 48 i), cited by Judge Cooley, expressly waives the question; but so far as it is noticed, the argument is all against the doctrine which it is supposed to sustain.
As a set-off to Judge Cooley’s text, we would refer to a vigorous opinion of Attorney-General Black, quoted in a note to Coleman v. Dobbins, 8 Ind. 156.
From this discussion it appears that the decided weight of authority, as well as every consideration of expediency, is opposed to the doctrine that this, or any court, for the purpose of informing itself of the existence or terms of a law, can look beyond the enrolled act certified by those officers who axe charged by the Constitution with the duty of certifying, and therefore, of course, with the duty of deciding what laws have been enacted.
Mandamus denied.
