Bull v. King
| Decision Date | 09 June 1939 |
| Docket Number | 32184. |
| Parties | BULL v. KING, State Auditor. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Carlton F. McNally Judge.
Mandamus proceeding by Daniel F. Bull against Stafford King, as State Auditor of the State of Minnesota, to compel the defendant to issue a warrant for the refundment of excess income taxes paid by the plaintiff. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
Syllabus by the Court .
1. The regularity of the enactment of a statute may be inquired into by examining the legislative journals to ascertain whether there has been compliance with constitutional requirements.
2. The bill presented to the governor for approval under Const Article 4, § 11, must be the same in substance and legal effect as the bill passed by the legislature, but immaterial errors will be disregarded.
3. Where there is a discrepancy between the bill passed by the legislature and the bill approved by the governor construction may be resorted to for the purpose of determining whether or not the latter differs from the former in substance and legal effect.
4. An erroneous reference included in an amendatory act identifying the statute to be amended may be eliminated as surplusage and the statute read as corrected, where the legislative intention is clear.
5. The rule of construction that an amendatory act providing that the amended act shall read as follows and then setting forth the amendment repeals all of the amended act not re-enacted is no obstacle to the application of the rule that erroneous references in the amendatory act identifying the amended statute may be corrected or eliminated by construction to conform to the legislative intent.
George W. Peterson, of St. Paul, for appellant.
Kellogg, Morgan, Chase, Carter & Headley, of St. Paul, Fletcher, Dorsey, Barker, Colman & Barber, of Minneapolis, and John L. Connolly, of St. Paul, for respondent.
J. A. A. Burnquist, Atty. Gen., P. F. Sherman, Asst. Atty. Gen., and Kent C. van den Berg, Sp. Asst. Atty. Gen., and Fowler, Youngquist, Furber, Taney & Johnson, of Minneapolis, amici curiae.
Plaintiff filed a claim with the Minnesota Tax Commission under Laws 1939, Chap. 446, § 19(c-1), for a refundment of excess of income taxes paid by him. Chap. 446 amends the income tax statutes, Laws 1933, Chap. 405, Extra Session Laws, 1937, Chap. 49. These statutes provide that the commission shall issue a certificate of refundment for the amount of the refund, and that the state auditor shall cause the refund to be paid out of the proofs of the income tax. A certificate was issued to plaintiff, which he presented to the state auditor for payment. The state auditor, being in doubt as to the constitutionality of Chap. 446 because of a variance in the bill as passed by the legislature and that approved by the governor, refused to issue his warrant.
The variance occurs in § 8. The bill as passed by the legislature[1] and the bill as approved by the governor[2] are printed in the margin with italics indicating where variance occurs. It appears that (1) the statute amended was referred to in the bill passed by the legislature as subsection (d) and in that approved by the governor as (c) and (d); (2) the singular ‘ is' is used in the former and the plural ‘ are’ in the latter; and (3) the subsection was designated as (d) in the bill passed by the legislature and was without designation in the bill approved by the governor. No point having been made of the variance between the words ‘ to’ and ‘ of,’ we pass it as immaterial.
The contention of defendant is that the bill passed by the legislature did not become a law for the reason that it was never presented to the governor for approval and that the bill approved by the governor was not the same bill which the legislature passed. The claim is predicated on the grounds that the two bills differed materially in substance and legal effect in that the bill passed by the legislature did not amend or change subsection (c) of the 1937 law and amended only subsection (d), and that the bill approved by the governor amended and changed both subsections (c) and (d) by substituting therefor § 8 of the 1939 law.
Plaintiff and the amici curiae other than the attorney general urge among other things that § 8 may be construed as amending only subsection (d) of the 1937 law and that the bill approved by the governor is the same in substance and legal effect as that passed by the legislature. The attorney general suggests that inquiry into the validity of the enactment of Chapter 446 is not permissible under the so-called ‘ enrolled bill rule,’ which he urges us to adopt, and that if we apply that rule the statute approved by the governor may be construed to be the same as that passed by the legislature. Other contentions are made, which we do not deem it necessary to state or decide. From the judgment below in favor of plaintiff, that he was entitled to a writ of mandamus directing defendant to issue the warrant for the refundment, defendant appeals.
1. The regularity of the enactment of a law may be inquired into and the legislative journals may be examined to ascertain whether the law has been passed in accordance with constitutional requirements. 6 Dunnell, Minn.Dig. (2 ed.) § 8898; Stat ex rel. Kohlman v. Wagener, 130 Minn. 424, 153 N.W. 749; State v. Twin City Telephone Co., 104 Minn. 270, 116 N.W. 835; In re Ellis' Estate, 55 Minn. 401, 56 N.W. 1056,23 L.R.A. 287, 43 Am.St.Rep. 514.
The rule which we follow is sometimes called the ‘ journal entry rule.’ The attorney general urges us to abandon that rule and adopt the so-called ‘ enrolled bill rule,’ under which the enrolled bill is conclusive as to the regularity of its enactment and the courts are precluded from examining the question. The basis of the rule is that the record of the enrolled bill imports absolute verity and that the rule is convenient in practice obviating inquiries such as the one now being made. The rule is sustained by many courts of high authority, including the Supreme Court of the United States. Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294. See 25 R.C.L. p. 895, § 147. It is the rule in England. The King v. Arundel, Hob. 109. We considered the question long ago in Board of Supervisors of Ramsey County v. Heenan, 2 Minn. 330,2 Gil. 281, and adopted the ‘ journal entry rule.’ The history of the question in this state was there reviewed. We pointed out that our constitutional debates indicated that the constitutional requirements relating to enactment of statutes were intended to be remedial and mandatory,-remedial, as guarding against recognized evils arising from loose and dangerous methods of conducting legislation, and mandatory, as requiring compliance by the legislature without discretion on its part to protect the public interest against such recognized evils, and that the validity of statutes should depend on compliance with such requirements with judicial determination of the question in the manner permitted under the ‘ journal entry rule’ . See Sjoberg v. Security Savings & Loan Ass'n, 73 Minn. 203, 75 N.W. 1116,72 Am.St.Rep. 616. The rule has the merit of preventing a bill from being accepted as law, which was not legally enacted.
The ‘ enrolled bill rule’ permits bills to become laws which have not been actually passed by the legislature. The rule has been said to be conducive to fraud, forgery, corruption and other wrongdoings in connection with legislation. Courts applying such a rule are bound to hold statutes valid which they and everybody know were never legally enacted. Rode v. Phelps, 80 Mich. 598, 45 N.W. 493. While we recognize that the ‘ enrolled bill rule’ is upheld by many authorities, the same must be said of the ‘ journal entry rule,’ which we follow and to which we adhere. The avoidance of the evils that might obtain under the ‘ enrolled bill rule’ outweigh the argument in its favor.
2. A law may be enacted under our constitution only by the concurrence of both houses of the legislature and the governor, or by a 2/3 vote of both houses in case of a veto by the governor.Art. 4, § 11, of the Constitution provides: ‘ Every bill which shall have passed the senate and house of representatives * * * shall, before it becomes a law, be presented to the governor of the state’ for approval.
In approving and vetoing bills the governor performs a legislative duty. Some of the authorities say that he then acts as a component part of the legislature. The duty of presenting bills to the governor after passage rests upon the legislature, which has adopted appropriate rules for that purpose.
The bill presented to the governor for his approval must be the same bill which was passed by the legislature. This requirement is mandatory. If there is a material variance between them, the bill presented to the governor cannot be said to be the same bill which was passed by the legislature. In that situation he approves not a bill passed by the legislature, but another. A material variance between the bill passed by the legislature and that approved by the governor invalidates the entire enactment. Sharp v Merrill, 41 Minn. 492, 43 N.W. 385; Sjoberg v. Security Savings & Loan Ass'n, supra; West End v. Simmons, 165 Ala. 359, 51 So. 638; Moog v. Randolph, 77 Ala. 597; People ex rel. Dezettel v. Lueders, 283 Ill. 287, 119 N.E. 339; Legg v. Annapolis, 42 Md. 203; Stuart v. Chapman, 104 Me. 17, 70 A. 1069; Rode v. Phelps, supra; Weis v. Ashley, 59 Neb. 494, 81 N.W. 318,80 Am.St.Rep. 704; In re Opinion of the Justices, 76 N.H. 601, 81 A. 170; In re Jaegle, 83 N.J.L. 313, 85 A. 214; State ex rel. Pollard v. Wisconsin State...
To continue reading
Request your trial