People v. DevlinPeople v. Devlin
- Reporters:
- Before:
- Campbell
Where a bill thus passed by the two houses, signed by the speakers and sent to the governor for his signature, is recalled by the action of one house alone, and the governor complies with the request, and sends back the bill, any action which such house may have in respect thereto, is a nullity.
Such bill, as passed by the joint action of the two houses, signed by their speakers, approved by the governor, and deposited in the office of the secretary of state, becomes the law of the State, notwithstanding any action either house alone may take in respect thereto.
It seems, that the courts cannot, for the purpose of impeaching a statute, go behind the records to inquire into the regularity of the proceedings of the legislature in passing such act.
Statement of case.
This action was brought by the attorney-general to recover for moneys in the hands of the defendant, which, it is claimed, the defendant, by law, ought to have paid over to the State treasurer.
The defendant claims to hold the moneys in question as his commissions and fees as chamberlain of the city and county of New York. The action was tried before the Hon. A. S. Johnson, as sole referee, who reported thereon as follows:
That he finds and decides, as matter of fact, that during the year 1863, between 7th day of August and the 24th day of December, there came to the hands of said defendant, he being then the chamberlain and county treasurer of New York, the sum of $2,139,425.44; that said sum so came to his hands as the product of the State taxes levied within the city and county of New York, under and in pursuance of laws enacted and existing prior to the first day of January, 1863, and that the said moneys were not, nor was any part thereof, levied for, or as part of the taxes imposed by the act of the legislature, chapter 393, of the Laws of 1863, passed May 4, 1863, and that it was the duty of the said defendant
That the said defendant afterwards paid over to the treasury of the State of New York, 2,118,030.02, and retained the sum of 21,394.40, which he claimed to be the amount of his lawful compensation in that behalf; that prior to the passage of the act above referred to, chapter 393 of the Laws of 1863, passed May 4, 1863, the chamberlain and county treasurer of New York was entitled to deduct and retain one per cent of the amount of State taxes in his hands to be paid into the State treasury, as and for his lawful compensation in that behalf.
And he further finds and reports, either as matter of fact or as matter of law, as it may appear to the court, that there is of record in the office of the secretary of State of the State of New York, an act of the legislature, of which chapter 393 of the Laws of 1863, in the printed laws of that year, is a copy, on which record is an indorsement signed by the secretary of State, who held that office during the year 1863, in the words following:
“State of New York,
Office of the Secretary of State.}This act having been approved and signed by the governor, on the 4th day of May, 1863, I hereby certify that the same became a law on that day.
HORATIO BALLARD,
Secretary of State.”
That from the journals of the senate and assembly for the year 1863, it appears that a bill in terms agreeing with the said chapter 393, was on the 17th day of April, 1863, read a third time in the assembly and passed, three-fifths of all the members being present, and ordered to be sent to the senate.
That in the senate, on the 22d day of April, the said bill from the assembly was passed without amendment, three-fifths of all the senators being present, and was ordered to be returned to the assembly, and that the same was so returned,
On the 24th day of April, the senate having received from the assembly a message, informing the senate of the said action of the assembly, resolved not to concur therein, and ordered the bill to be returned to the assembly with a message to that effect, and with the information that the senate had appointed a committee of conference on the subject.
Afterwards, on the same day, the assembly having received the said message from the senate, resolved to adhere to its previous action, and ordered the bill to be returned to the senate, with a message informing the senate of the said action of the assembly.
Afterwards, on the same day, the senate having received the said bill and message from the assembly, resolved that the bill should be returned to the assembly, with a message, informing the assembly that as the bill had passed both houses and been sent to the governor, it was, in the judgment of the senate, beyond the control of either house without the consent of the other, and that the senate declined taking any further action in regard to it. Afterwards, on the same day, the assembly having received the said bill and the said message from the senate, rescinded their resolution to adhere, and appointed a committee of conference, and informed the senate of their action in the premises, and returned the bill to the senate, with the message giving such information.
Afterwards, on the same day, the committee of conference reported to the senate and assembly a recommendation that
The senate thereupon, on the same day, resolved, according to the said recommendation of the conference committee, and ordered the bill to be returned to the assembly with the message accordingly.
The assembly thereupon, on the same day, on the return of the bill and the report of the conference committee, non-concurred in the report, and appointed another committee of conference.
On the 25th day of April, the senate resolved to send a message to the assembly, asking that the bill should be returned to the senate.
That no further action was had, or order made, by either the senate or assembly, in respect to the said bill or act, so far as is proven by the journals of the senate and assembly.
That upon the matters before set forth, the referee determined and decided, as matter of law, that the defendant had no right to receive for his compensation, or otherwise, a greater sum than the sum of $2,000, and he therefore decides that the defendant ought to pay to the plaintiffs the balance of the sum retained by him, after deducting therefrom $2,000, together with lawful interest on such balance, from the 1st day of May, 1864, to the date of the report, being of principal $19,394.24, and of interest 1,206.75, which sums, in the whole, amount to $20,600.99, for which sum judgment was directed to be entered in favor of the plaintiffs against the defendant.
Potter, J. There is no constitutional objection to the power of the legislature to regulate the compensation of county treasurers, or that of the chamberlain of the city and county of New York. The same power has been before
In many counties of the State the receipt and payment over of a larger amount of money adds nothing to the compensation of county treasurers. By an act of the legislature
If, then, the fifth section of the act of 1863 was a law of the State of New York, when the funds in question came into the hands of the defendant, and when he paid over the amount which he did pay to the State treasurer, then the judgment below is right; otherwise, it should be reversed. This is the only and single question that remains.
As evidence that the act in question, including the said fifth section, is a law of the State, there was produced on the trial the record of such an act from the office of the secretary of State of the State of New York, on which record is an indorsement, signed by the secretary of State who held the office during the year 1863, in the usual form, certifying that the act had been approved and signed by the governor on the 4th day of May, 1863, and the further certificate of said secretary that the same became a law on that day. In the printed volume of the laws of that year is a copy of the said act; the volume from which the statute was read is certified in like manner by the secretary of State. By the statute of this State of 1846, ch. 24, it is provided that “all laws passed by the legislature may be read in evidence from the volumes printed under the direction of the secretary of State.” The evidence, therefore, of the existence of such a statute, was produced on the part of the people. By the Revised Statutes,
To impeach this record the journals of the senate and assembly were introduced, which showed the action had upon the said bill, in those two houses, to be as contained in the report of the referee. And the question that first arises upon this showing is, can a legislative act, so certified, be impeached by the journals of the two houses? To determine this we may resort to the Constitution, the statute, and to the common or parliamentary law.
By the provisions of the present Constitution, the common law of the colony of New York and acts of its legislature as they existed on the 19th April, 1775, and the acts of the legislature in force at the making the Constitution, were made the law of the State. (
The foregoing are all the constitutional provisions in regard to the performance of duties by the legislature, necessary to the passage of acts, in order to constitute them valid laws. The journals introduced show, if they are legal evidence, that three-fifths of all the members present, in both houses, voted for the bill in question. The bill was read a third time in the assembly, the house in which it originated, on the 17th day of April, 1863, and was ordered by them to be sent to the senate. On the 22d day of April, 1863, the bill was passed in the senate, without amendment, by three-fifths of all the senators present, and ordered to be returned to the assembly; and on the same day, the same was so returned; and also, on the same day, the assembly sent the said bill to the governor. Thus far, all the constitutional requisites to pass the bill had been performed, by the two houses of the legislature. To make it a law, required but the signature of the governor, which it subsequently received. By the provisions of both the Constitution and the statutes, to which we have referred, this bill, upon this evidence, became the law of the State. All that further appears by the journals of the two houses, in relation to this bill, raise this question: After the passage of a bill in the legal and constitutional form, by both houses of the legislature, and the same has been transmitted by them to the governor, in the manner provided by the Constitution, have the two houses exhausted their power over it, or can they, or can either of the said
There is no doubt that each house of the legislature, by virtue of the constitutional provisions we have cited, and perhaps inherently, have power to determine for itself rules and orders to govern them in the various stages of legislation, and in relation to all matters relating to the exercise of their rights, powers and privileges. When such rules or laws have been established by them, as they were in this instance, they become the law of that body for such purpose, and are binding upon them as the law to govern them in such proceedings; and this is called parliamentary law. (2 Salk., 503; 2 Lord Raym., 1105.) And when they have established such
I am of opinion that the legislative journals were not legitimate evidence to impeach the statute produced. They are not made evidence by the Constitution; they are not made so by the statute; they were never made so at common law. They are, doubtless, evidence, from the necessity of the case, on grounds of public convenience and from the public character of the facts they contain, to prove the proceedings of the body whose records they are, because the Constitution requires them to be kept. Whenever any act or proceeding of such a body becomes necessary to be shown as evidence, such journals may be received; but to impeach the force and effect of a solemn statute duly certified, no authority can be found within the limits of my research to admit them to be legitimate evidence, but much authority may be found to the contrary.
In the case of Eld v. Gorham (20 Conn., 16), it was held upon provisions of statutes, and the method of authenticating them similar to those of our statutes, as follows: “When the legislature constituted a certified copy of an act, an authentic record of the statute laws of the State, it has the same force and effect as if it were in truth a portion of the original records, as to its constituting evidence of what is stated in it. As such, it imports absolute verity, is, in itself, conclusive evidence of what it states.” “It can neither be contradicted nor varied as to any of the facts of which it professes to be the memorial, and no evidence is admissible, because it would be unavailing for that purpose.”
In the case of Fletcher v. Peck, reported in 6 Cranch, 131 (6 Cond., 308), Chief Justice Marshall held, that “in a con
A few cases are found in our reports, in which the courts have gone so far as to examine whether certain acts have been constitutionally passed, that is, whether the legislature have power to pass the act in question, as when the Constitution requires that two-thirds of all the members elected to vote for an act. So held in Thomas v. Dakin (22 Wend., 9), and in the case of the People v. Purdy (2 Hill, 31), Bronson, J., held, that when the point is raised whether a two-thirds act was passed as a majority bill only, the court may look beyond the printed statute book; and if the original engrossed bill on file in the office of the secretary of State is not certified pursuant to the statute as having passed by a two-thirds vote, this is at least prima facie evidence of the contrary being the fact.”
In Warner v. Beers (23 Wend., 125), Chancellor Walworth said: “I have very little doubt that this court (the court of errors), is not authorized upon this demurrer to the plaintiff’s declaration, to look beyond the printed statute book for the purpose of ascertaining whether the law of April, 1838, was passed by a two-thirds vote, or merely as a majority bill, if indeed a court is authorized in any way, to institute an inquiry into the mode in which a law signed by the governor and duly certified by the secretary of State, was passed.” In the same case Verplanck, Senator, after an examination of English common law authority, page 133, says: “The statute must be its own evidence, and cannot be rebutted.” And Bradish, President, said, page 171: “I am clearly of opinion that the question whether this act of the legislature be a law is not a question of fact, to be tried by a jury, but one of law to be determined by the court only, and that by an inspection of the record. That record imports verity.” “Its
Lord Coke (Co. Lit., 98, b), speaking of this act of parliament, says, “It is, among other acts of parliament, entered into the parliament roll, and, therefore, shall be intended to be ordained by the king by the consent of the lords and commons in that parliament assembled; and, thirdly, it is a general law whereof the judges may take knowledge, and, therefore, it is to be determined by them whether it be a statute or no.”
Comyn, in his Digest, title, “Parliament,” citing Lord Coke’s authority, supra, says, “And, therefore, a man cannot plead to it ‘nul tiel record.’ So, it shall not be proved by a journal.” (Hob., 110.) “And if the journal of parliament be variant from the record it does no prejudice, for that is no record.” (Id.) “So if by the roll it appears that the bill was sent to the lords by the commons, with a proviso annexed, and no proviso is extant upon the record, yet it shall be a good statute.” (Id., 110, 111.) We have no common law in this country in conflict with this. It would be destructive not only of all public confidence, but would open a wide door for litigation, if our statutes, published by public authority, were liable to be annulled or impeached by issues of fact to be raised either of fraud in procuring their passage, or in lack of conformity to rule, by either house in the usual forms of enactment. If the defense interposed in this case, that no
Campbell, J. The defendant, as chamberlain of the city of New York, received in 1863 over two millions of dollars on account of the State tax. Over nineteen thousand dollars, part of the sum, the defendant retained, claiming that he was entitled to the same as fees or percentage on the amount so received by him for the State. On the 4th day of May, 1863, and before the receipt of the money above mentioned, the legislature passed an act entitled “An act to provide means for the support of the government, &c.,” authorizing certain taxes to be levied and collected, and the fifth section of which act, first clause, is as follows: “It shall be the duty of the several county treasurers of this State, on or before the first day of April in each year, to pay to the treasurer of this State the amount of State tax raised and paid over to them respectively, retaining the compensation to which they may be entitled, and which compensation shall not exceed the amount now authorized by law, and shall not, in any case, exceed the sum of two thousand dollars.” The rights of the parties depend on the validity and construction of this section of the act of 1863, the defendant contending that such act, and especially the fifth section, was not passed by the legislature and did not become a law; that if passed and a law of the State, the section was not intended to and did not limit the compensation of the defendant for the receipt and payment of moneys levied and collected under tax laws enacted previous to May 4, 1863, and that the money sought to be recovered had been paid in to him under such former laws, and lastly, that the section did not apply to him in terms as the chamberlain of the city of New York.
The legislature, under constitutional limits, is the supreme law maker of the State. Within the Constitution the legislature is supreme, and when a law confessedly within the power of the legislature to make, comes down to the people, authenticated by the presiding officers of the respective houses, approved by the governor and certified and declared by the secretary of State to be the law of the State, no citizen, I think, in a private controversy, can call upon the courts to go behind the record thus made up and impeach the validity of the law, by showing that in its enactment some form or proceeding had not been properly followed or adopted by the legislature, the supreme law maker. The court decides what the law is, which the legislature has made, and enforces
But if the court can go behind the record and inquire into the regularity of the proceedings of the legislature, then I am of opinion that this law was duly enacted according to the approved usages of legislative bodies and the established rules of parliamentary law. The law had its origin in the assembly. The bill was introduced and was considered in all its stages, and passed and sent to the senate for concurrence. It met the approval of the senate, and was passed by that house without amendment, and after such passage, was returned to the assembly, was signed by the presiding officers and sent to the governor. This was according to well established parliamentary usage and law. The legislature had declared its will. No further separate action was required or allowed. The streams issuing from senate and assembly fountains had flowed together and were now united in one. The united action of both houses would be necessary to recall the bill. In this case, however, the assembly, without the consent, and, as afterwards appeared, without the approval of the measure by the senate, sent a message to the governor, asking the return of the bill to the assembly. This was done by the governor probably as an act of courtesy, and without knowledge, on his part, that it was against the wishes of the senate. The assembly, on receiving the bill, struck out and erased the fifth section before referred to. The bill was again sent to the senate. That house refused to concur in the amendment, and resolved that, inasmuch as the bill had
The question whether the fifth section of the act of 1863 applies to the chamberlain of the city of New York, is answered by a simple quotation of part of section 101. (1 R. S., 5th ed., p. 865.) “The chamberlain of the city and county of New York, shall be considered the county treasurer thereof.” The article of which that section is a part relates to the county treasurers, and as far as relates to the duties of the chamberlain in receiving and paying over the moneys of the State, he is clearly a county treasurer. The law says he is “considered the county treasurer.” If he is so considered in the statute, it would be absurd to say he is not the county treasurer. If the defendant is chamberlain in his dealings with the city of New York, he certainly is county treasurer in his dealings with the State.
The fifth section of the act is general in its terms and requires the treasurers to pay over the State tax raised and paid to such treasurers, not the State taxes to be levied and collected under and by virtue of the law of 1863, but, all State taxes that may come into their hands. The taxes in question came into the hands of the defendant some time after the act of 1863 became a law. The defendant had no vested interest in the emoluments of his office which the legislature could not affect. The prospective salary or emoluments of a public office are not property, and may be increased or reduced by law at all times, except in the cases where the Constitution has forbidden it. (Connor v. The Mayor, 1 Seld., 285.) There is no constitutional provision forbidding
In my opinion the judgment is right and ought to be affirmed.
In which all the judges concurred.
Judgment affirmed.