186 Ga. 145 | Ga. | 1938
The first question to be determined is whether or not the act approved February 16, 1938, which provides thajt the trial judge and not the jury shall fix the sentence in criminal cases, is violative of'art. 5, sec. 1, par. 13, of the constitution of Georgia (Code, § 2-2613), which declares that no law shall be enacted at a called session of the General Assembly “except such as shall relate to the object stated in his [the Governor’s] proclamation convening them;” the measure in question having been acted upon at the called, or extraordinary, session of the Genera] Assembly convoked on November 22, 1937, under the proclamation of the Governor dated November 20, 1937. The proclamation recited that the General Assembly was called in extraordinary session “for the purpose of considering and enacting laws and resolutions, by revision, repeal, amendment or otherwise, relating to all the following subjects, which are considered by the Executive of sufficient importance to make the necessity for such extraordinary session, to wit” (among other subjects enumerated) : “Laws fixing and imposing sentences in criminal cases; and probation of persons convicted.” The caption of the bill under attack is as follows : “An act to provide that in all criminal trials, except when defendant enters a plea of guilt, the jury shall pass only on the guilt or innocence of the accused; to provide that the trial judge shall fix sentence in cases of conviction or plea of guilt; to provide that the said judge shall make investigation before passing sentence; to authorize and empower the trial judge, to suspend sentence; to fine, or probate defendant; to provide an effective date for this act; and for other purposes.” Section one is as follows: “Section 1. In all criminal trials, whether misdemeanor or felony,
The second question is, whether or not the plaintiff will be allowed, for the purpose of showing its invalidity, and to impeach the entries thereon, to go behind the enrolled copy of the act in question, deposited with the Secretary of State, and now on file in his office, the same showing on its face that it was passed by both the Senate and the House by the requisite constitutional majorities, bearing the signatures of the Secretary of the Senate and of the Clerk of the House to that effect, and also bearing the authenticated signatures of the President of the Senate and the Speaker of the House, and the approval and signature of the Governor. The case was tried on an agreed statement of fact. While by taking the words literally the said statement, which was signed by the solicitor-general and counsel for petitioner in the habeascorpus proceeding, might be said to mean, as stated, “that the following facts are true,” they will not be given that meaning, because the written agreement also contains the following stipulation: “In consenting to this agreed statement of fact, it is understood that the solicitor-general of the Eastern Judicial Circuit insists that the court has no right to go behind the enrolled copy of the act in question and the legality of the detention of the plain
The plaintiff seeks to impeach the validity of the bill in several ways: By the Journal of the House of Eepresentatives, by a photostatic copy of the Senate bill, on which appears a statement from the chairman of the House committee to whom the bill, when it came from the Senate, was referred, to the effect that it was reported back to the House with an adverse recommendation; by aliunde evidence that before the bill could have been considered by the House at all, it would have been necessary to disagree to the report of the committee, and this was never done; by the same kind of evidence that the bill was in fact never read the third time in the House; that the reported action of the House in passing the bill by a vote of 103 to 0, purporting to be signed by the clerk, was in fact not placed there by the clerk or by his authority; and that the last sheet, containing the genuine signatures of the president and secretary of the Senate, and the speaker and clerk of the House, was placed there inadvertently. “The decisions in regard to whether
In the DeLoach case it was contended that a certain act was unconstitutional on the ground that the House and Senate journals did not show that it was enacted in the manner prescribed by the constitution. This court ruled: “If an enrolled act of the legislature was duly signed by the President of the Senate and the Speaker of the House and approved by the Governor, and deposited in the office of the Secretary of State, it was not competent to attack its validity on the ground that the legislative journals showed that the bill originated in the House, was there passed by a constitutional majority and transmitted to the Senate, where it was amended and passed by a constitutional majority, and then transmitted to the House, where the Senate amendment was concurred in, but failed to show that this was done by a constitutional majority.” The Chief Justice observed that it is at best a matter of delicacy for the courts to go into the details of legislative procedure, critically examining the methods of a co^ ordinate department of the government, and -declaring that its
Whitley v. State, 134 Ga. 758 (68 S. E. 716), was a similar case. There a plea in abatement to an accusation set up the unconstitutionality of an act, for that the Senate journal did not show that the bill received the vote of a majority of all the members elected to the Senate. This court held that the plea was properly stricken, Lumpkin, Justice, stating in the opinion that the
The constitution of the State requires that each House of the General Assembly shall keep a journal of its proceedings. Art. 3, sec. 7, par. 4 (Code, § 2-1804). The original journal shall be preserved, after publication, in the office of the Secretary of State, but there shall be no other record thereof. Art. 3, sec. 7, par. 5 (§ 2-1805). No bill shall become a law unless it shall receive a majority of the votes of all the members elected to each House of the General Assembly; and it shall, in every instance, so appear on the Journal. Art. 3, sec. 7, par. 14 (§ 2-1814). If, notwithstanding these requirements of our organic law, the journals are not competent evidence to attack the validity of an enrolled act of the legislature, duly signed by the President of the Senate and Speaker of the House, approved by the Governor and deposited in the ofliee of the Secretary of State, can the validity of such enrolled act so authenticated, approved, and filed be attacked by showing, from other sources of testimony, that as ¡ a matter of fact the bill did not actually pass one or both Houses by the requisite constitutional majority? It would seem, a fortiori, that it could not. Indeed, the basis of the rule that even the journals are not competent to make such an attack is that there is a conclusive presumption that the bill was enacted into law in accordance with the constitutional requirements. A. C. L. R. Co. v. State, Dorsey v. Wright, and Bachlott v. Buie, supra. If the presumption is conclusive, no evidence to the contrary will be received. Extrinsic evidence that proper notice had not been given before the introduction of a local or special bill, when the same is being attacked as unconstitutional for want of such notice, will not be received by the courts. Speer v. Athens, 85 Ga. 49 (11 S. E. 802, 9 L. R. A. 402). A similar ruling was made in Harper v. Nashville, 136 Ga. 141 (70 S. E. 1102). Although the report of the Harper case does not disclose the character of the evidence offered, the original record of file in the
Aside from the fact that the rule against going behind the enrolled bill is required by the respect due to a coequal and independent department of the government, the rule is also one of convenience, which if disregarded would tend to great confusion in the administration of the law. If courts be permitted to conduct an independent inquiry as to whether constitutional requirements have been complied with as to the manner in which the bill was attempted to be passed, when would we ever know that an enrolled act, duly authenticated and filed with the Secretary of State, was valid? The consequence of scrutinizing the conduct of the legislature and its presiding officers, and hearing evidence in respect to the passing of acts which have thereafter been enrolled and signed and deposited with the Secretary of State, would be far-reaching, and the exercise of any such right fraught with danger and uncertainty. If resort to extrinsic evidence be permitted for the purpose of showing the invalidity of an act, enrolled., signed and approved, and on deposit in the office of the Secretary of State, what assurance is ■ there that different trial courts would reach the same conclusion as to the truth of the testimony presented? If the evidence were in conflict, or even un
In view of the rulings already made, it is unnecessary to decide whether the question made could be raised by plaintiff in a petition for habeas corpus filed after his conviction.
Judgment affirmed.