174 N.W. 81 | N.D. | 1919
Lead Opinion
The defendant was convicted in the district court of Ramsey county of violating the so-called “Bone-dry” Law of this state. Laws 1917, chap. 136. And he has appealed from the judgment of conviction and the order denying a new trial.
The information charges that the defendant on July 5, 1918, within Ramsey county, committed the crime of aiding, abetting, and secur
The statute under consideration was introduced on January 12, 1917, as House Bill No. 39. It was passed by the House of Representatives on January 31, 1917, as originally introduced. The first part of the act as introduced and passed by the House read as follows: “It shall be unlawful for any person, firm, or corporation to deliver, or receive or have in possession for delivery within this state any intoxicating liquor unless the package or container of such liquor shall be labeled on the outside in large clear letters showing the consignor, consignee, kind and quantity, percentage of alcohol, and place of delivery.”
Hpon reaching the Senate the bill was referred to the committee on temperance. This committee made a report recommending several amendments. The Senate adopted the amendments, and on March 1, 1917, passed the bill as amended. Senate Journal, pp. 1018, 1019. As passed by the Senate the above-quoted portion read as follows: “It shall be unlawful for any person, firm, or corporation to deliver, or receive or have in possession for delivery to any person, firm, or corporation within this state, more than quarts of spirituous liquors, or 5 gallons of wine, or 72 quarts of beer, malt or other -intoxicating, liquors within any consecutive thirty days, except that delivery of intoxicating liquors may be made to- registered pharmacists for disposition as provided by law, for medicinal, mechanical, scientific, and wine for sacramental purposes or any intoxicating liquor for any purpose, unless the package or container of such liquor shall be labeled on the outside in large clear letters showing the consignor, consignee, kind and quantity, percentage of alcohol, and place of delivery.”
The other amendments made in the bill harmonized its provisions with the change made in the portion quoted. On March 2, 1917 (the last day of the legislative session), the bill was reported back to the House, with the statement that the Senate had amended the bill so that
“Whereas, there was passed at the fifteenth session of the legislature House Bill No. 39 appearing in the Session Laws for 1917 under chap. 136, and
“Whereas, the Journal of the House of Eepresentatives, at page 1461, erroneously contains what is purported to be an amendment to said bill and as having been passed by the Senate as so amended, and
“Whereas, the House of Eepresentatives passed said bill with such purported amendment assuming that this Senate had so amended and passed such bill (the record of the passage of such bill as amended will be found at page 1479 of said House Journal), and
“Whereas, it is within the knowledge of the members of the Senate and each individual Senator, and it is so recorded correctly at page 1018-19 of the Senate Journal for the fifteenth legislative assembly, that House Bill No. 39 as so amended by the Senate was not voted upon or adopted by the House of Eepresentatives, the amendment as adopted by the Senate having been reported incorrectly or changed in the House after same had been reported to said House, and
*274 “Whereas, through such gross carelessness or fraud such bill was passed by the House different in form and meaning than same was passed in the Senate.
“Now, therefore, be it resolved, that this Senate do now severely condemn the practice by which this fraud was perpetrated upon the Senate and the people of the State of North Dakota in order that this practice may cease in the future, and in order that the people may know that the laws of the state are made by the regular constituted legislative assembly, and not by clerks or employees of such assembly.”
Now, under that state of facts, is it the duty of this court to hold that chapter 136, Laws 1917, was not enacted, and that in fact it is no law at all ? That is the question here.
The Constitution declares: “Each House shall keep a journal of its proceedings, and the yeas and nays on any question shall be taken and entered on the journal at the request of one sixth of those present.” Const. § 49. “No law shall be passed, except by a bill adopted by both Houses.” Const. § 58. “No bill shall become a law except by a vote of a majority of all the members-elect in each House, nor unless, on its final passage, the. vote be taken by yeas and nays, and the names of those voting be entered on the journal.” Const. § 65. By the express terms of the Constitution, all of its provisions “are mandatory and prohibitory unless, by express words, they are declared to be otherwise.” Const. § 21. Provision has been made in our laws for the publication of the legislative journals (Comp. Laws 1913, § 40), and it is made the duty of the courts to take judicial notice of such journals and the history of every statute in its progress through the legislature. Comp. Laws 1913, § 7938, subds. 58, 59, 61. It Has been made the duty of the secretary of the Senate and the chief clerk of the House to retain custody of all papers committed to them, “and at the close of each session of the legislative assembly to deposit for safekeeping in the office of the secretary of state all books, bills, documents, resolutions, and papers in possession of the legislative assembly, correctly labeled, folded, and classified.” Comp. Laws 1913, § 39. A personal inspection of the records in the secretary of state’s office discloses that no report or statement from the secretary of the Senate or the chief clerk of the House regarding House Bill No. 39 has ever been turned over to the secretary of the state.
No good purpose would be subserved by entering into an extended discussion of the various authorities dealing with the question whether
Either the enrolled bill is conclusive, or it is not. If it is conclusive then, of course, the court may not look beyond it for any purpose. If this view is correct then an enrolled bill is the law of the state, and .must be enforced as such even though it affirmatively appears from the legislative records that the bill never received the approval of either House. We have already noted some of the restrictions which the people, in their Constitution, have placed upon the legislative department. They have said that each House shall keep a journal of its proceedings; that “no law shall be passed, except by a bill adopted by both Houses,” and that “no bill shall become a law except by a vote of a majority of all the members-elect in each House, nor unless, on its final passage, the vote be taken by yeas and nays, and the names of those voting be' entered on the journal.” Const. §§ 49, 58, 65. They have also said that these provisions are mandatory and prohibitory. Const. § 21. Yet if the enrolled bill is conclusive, these provisions are rendered nugatory.. An enrolled bill would be law, even though the
In this case there is no question about the facts. Chapter 136, Laws 1917, was never enacted. It was never passed by the Senate at all. Not only is this fact shown by the legislative journals of the 1917 session, but was so proclaimed by the Senate by unanimous vote when convened in extra session in 1918.
It follows from what has been said that the information in this case does not state the facts sufficient to constitute a public offense. The judgment of conviction is therefore reversed, and the action is ordered dismissed.
Concurrence Opinion
(concurring specially). I concur in the opinion of Mr. Chief Justice. Christianson, holding that the enrolled bill is not so far conclusive evidence of the facts in connection with the passage of a bill as to preclude reference to the journals for the purpose of ascertaining therefrom the facts required to be recorded. And I concur in the reasoning of the opinion upon which the conclusion is based. However, some statements are made or quoted which might lead to the conclusion that the enrolled bill would not be conclusive where, through omission, the journals failed to contain facts which are essential to the- due passage of the bill. In the case before us the facts recorded in the journal negative the passage of the bill. It is not a
Concurrence Opinion
(specially concurring). I concur in the determination made that the judgment must be reversed and the action ordered dismissed upon the ground that chapter 136, Laws 1917, was not ever adopted as the law of this state, and that therefore the information does not state a public offense. Under § 58 of the Constitution no law shall be passed except by a bill adopted by both Houses, and under § 65 of the Constitution no bill shall become a law unless, on its final passage, the vote be taken by “yeas” and “nays” and the names of those voting be entered on the journal. As set forth in the opinion of Justice Christianson, and as disclosed by the Journals of the House and Senate of the legislative session of 1917, chapter 136, Laws of 1917, was, in fact, never up before the Senate for a third reading and final passage in the form that it was adopted, and it never was, in fact, voted upon by the members of the Senate in 1917. Although the President of the Senate and the Speaker of the House signed the engrossed bill in the form that it now appears as an apparent law, and the bill became by signature of the governor and filing’ as ordinarily required an apparent law, nevertheless in fact, it was never adopted as such by the Senate of 1917. Although high presumptions should obtain as to the conclusiveness of the engrossed bill, yet the provisions of the Constitution are mandatory, and a bill that was in fact not passed cannot be made a law by the mere certification of the state officers, when it has, in fact, not been passed by the legislative body having the power so to do.
Concurrence Opinion
I concur in a large part of the reasoning and in the result reached in the specially concurring opinion of Justice Bronson.