State ex rel. Brown v. Bailey

• Decision Date: 27 May 1861
• Court: Indiana Supreme Court
• Parties: The State, on the relation of Brown, Prosecuting Attorney, &c. v. Bailey and Others

16 Ind. 46

The State, on the relation of Brown, Prosecuting Attorney, &c. v. Bailey and Others

Supreme Court of Indiana

May 27, 1861

APPEAL from the Randolph Circuit Court.

The judgment is reversed, with costs. Cause remanded.

Jer. Smith, John Davis, Silas Colgrove, J. W. Gordon and A. H Connor, for the State.

O. P Morton, W. Z. Stuart, W. A. Peele and A. L. Roache, for the appellees.

OPINION

Perkins J.

Information in the Randolph Circuit Court, in the nature of a quo warranto, filed by the prosecuting attorney, in the name of the State, against certain persons who, it is alleged, are claiming to be a railroad corporation, and assuming to act as such, without being organized according to law.

The information is composed of four paragraphs:

The first charges that the defendants pretended to organize as a corporation, on February 25, 1853, and are assuming to act under the organization then made; while, at that time, there was no law in force, nor was there till May 6, then next following, permitting such organization as that made. The second and third paragraphs charge the filing in the office of the Secretary of State, of false and fraudulent articles of association, whereby the corporation was claimed to be organized. The fourth charges present insolvency of the corporation. A demurrer was sustained below to all the paragraphs of the information.

The paragraphs must be examined separately. We commence with the first: It charges, that the organization of the corporation was perfected prior to the taking effect of the law authorizing it.

Waiving the question, whether, if the fact be as alleged, that organization was not a continuous one, which the law operated upon, and made good when it came into force, the members of the organization not withdrawing nor dissenting, we proceed to inquire when the general railroad law of 1852 took effect.

The new Constitution, under which that law was enacted, provides that laws, except in cases of emergency, shall take effect from the time when they are distributed, by authority, in all the counties of the State. Jones v. Cavins, 4 Ind. 305. It seems to be necessary here, then, to ascertain the person or persons who had authority to distribute the statutes enacted by the Legislature. This is not a thing of difficulty. The code of 1843, and that of 1852, alike provide, that the distribution shall be made by the Secretary of State. R. S. 1843, p. 158; 1 R. S. 1852, p. 436.

Whenever, then, the acts, or any portion of them, of a session of the Legislature are distributed in a bound volume, in a manner and shape not substantially contrary to the statute on that subject, in all the counties of the State, by the Secretary of State, through his agents appointed for that purpose, they are distributed or published by authority. The fact that directory provisions as to form of binding, character or color of materials, division into volumes, &c., may not be strictly followed by the Secretary, does not render the distribution of such as are prepared and distributed by him, any the less a publication by authority.

When, then, was the general railroad law of 1852 distributed in all the counties of the State, by authority? In other words, when did the statute constituting that law, become the law of the State? This is a question for the Court to determine by judicial knowledge, not by evidence given on the trial of a cause. If it were to be determined as a fact, by evidence, on the trial of each cause, then a law might be decided in force upon one trial, and not in force upon another, in which the evidence touching the fact might differ from that upon the former trial. The inconvenience, the confusion, that would result from making the coming into force of a statute a question of fact for the jury, has led to the adoption of the principle everywhere, that it shall be a question of law for the judicial knowledge of the Court. The Court informs itself as best it can. Now, it takes judicial knowledge of the proclamation of the Governor, as to the time when the general volume of biennial statutes takes effect. Ind. Dig. 343.

So, whether a statute has been constitutionally enacted or not; in short, the question whether a statute is, at any given time, a law or not, is for the Court. Sedg. on Stat. 67-8; id. 82, 84; Dwarris, quoted by Sedgwick p. 118; 9 Ind. 20; 1 Greenl. § 4; 2 Blackf. 31; 4 id. 54, note; Ind. Dig. 265; McCullough v. The State, 11 Ind. 424.

The revised code of 1852, as a whole, did not take effect, as the Court from its judicial knowledge has already decided, till May 6, 1853. Jones v. Cavins, 4 Ind. 305. Did the railroad act take effect at an earlier date? It contained no emergency clause. Nor did it require that the Secretary of State should publish it in advance of the other acts of the session. But, on June 9, 1852, the Legislature passed a joint resolution, which was approved by the Governor, instructing the Secretary of State to publish the statute in question, with four others, bound together in proper binding, as soon as convenient. Acts 1852, p. 178. The act in 1 R. S. 1852, p. 348, was not in force till May 6, 1853. If the Court is to presume that the Secretary acted in obedience to the joint resolution above referred to, then it will have to presume that the acts mentioned were in force before February 25, 1853; because, by reasonable diligence, the Secretary could have caused their legal distribution long before that time.

Will the Court presume that the Secretary acted under the resolution? Such presumption must be indulged if the resolution was a legal expression of the wish of the Legislature. It is said that a bill, not a joint resolution, was the necessary vehicle for conveying the direction of the Legislature to the Secretary.

The new Constitution ordains that "no law shall be enacted except by bill." Art. 4, § 1. And it is assumed by counsel for the State, that the direction given by the joint resolution could only have been given by a law, and that the joint resolution was not such.

The old Constitution provided that the style of laws should be, "Be it enacted by," &c.; and yet such was not the style of joint resolutions, and, hence, it may be argued that under the old Constitution joint resolutions were not laws. Const. 1816, art. 3, § 18.

Mr. Cushing, in his Law of Legislative Assemblies, § 2403, says: "A form of legislation, which is in frequent use in this country, chiefly for administrative purposes of a local or temporary character, sometimes for private purposes only, is variously known in our legislative assemblies, as a joint resolution, a resolution, or a resolve. This form of legislation is recognized in most of our constitutions, in which, and in the rules and orders of our legislative bodies, it is put upon the same footing, and made subject to the same regulations, with bills, properly so called. In Congress a joint resolution, which is the name given in that body to this kind of legislation, is there regarded as a bill."

But we shall not attempt a definition of a joint resolution. It will be sufficient for our present purpose to say that, be it what it may, our Constitution recognizes it as a means for the expression of the legislative will, (art. 4, §§ 18, 20, and 25,) and by which some acts may be authoritatively performed by the Legislature. That...