Burkhart v. Reed

• Decision Date: 11 March 1889
• Citation: 2 Idaho 503,22 P. 1
• Parties: BURKHART, SPEAKER OF THE HOUSE, v. REED, CHIEF CLERK OF THE HOUSE, ET AL
• Court: Idaho Supreme Court

22 P. 1

2 Idaho 503

BURKHART, SPEAKER OF THE HOUSE, v. REED, CHIEF CLERK OF THE HOUSE, ET AL

Supreme Court of Idaho

March 11, 1889

MANDAMUS-LEGISLATIVE RECORD-CHIEF CLERK-TERRITORIAL SECRETARY.-Burkhart was Speaker of the House. Reed was chief clerk. At the end of the sixty days, which was the full length of the session fixed by Congress, Speaker Burkhart declared the session closed. Speaker Burkhart and part of the members left the room. Part of the members remained and elected Wheeler a Speaker pro tem. and proceeded with the business and passed a number of bills. The clerk made up the proceedings of the day including that under the Speaker pro tem. and by him signed, and delivered them to Curtis, secretary of the territory, who received and receipted for them to said clerk. Speaker Burkhart petitions this court to issue a writ of mandate, directing Secretary Curtis to produce the record of the House to the court, that the court direct the record to be amended by the chief clerk to correspond to the facts and permit the said Speaker Burkhart to sign the same as Speaker. Held, that mandamus will not lie to inquire into the acts of a legislative body by verbal testimony, and cause its record to be corrected, or if there be no record to make one; and that a legislative journal can only be corrected by the body that made it.

Demurrer sustained, and the application for a writ denied with costs.

Arthur Brown, Lyttleton Price, Texas Angel, and S. B. Kingsbury, for Petitioner.

R. Z Johnson and Albert Hagan, for Respondent Reed.

James H. Hawley and John S. Gray, for Respondent Curtis.

WEIR C. J. Logan, J., concurs. BERRY, J., Dissenting.

OPINION

WEIR, C. J.

This is an application by the plaintiff for a writ of mandate to be directed to the defendants above named. The grounds upon which the writ is asked are fully set out in the petition of the plaintiff, which is as follows: "The above-named plaintiff, H. Z. Burkhart, shows that he was the duly elected Speaker, and is now the actual and acting Speaker, of the House of Representatives of Idaho; that defendant, Charles H. Reed, is chief clerk of the House of Representatives, and Edward J. Curtis is the secretary of the territory of Idaho; and for cause of action for mandamus alleges that the said defendant, Charles H. Reed, has in his possession, as such chief clerk, the minutes of the proceedings of said House of Representatives for the last day of the fifteenth session; that the same has not yet been signed by plaintiff, H. Z. Burkhart, the Speaker, and said defendant Reed refuses to present the same to said Speaker for his signature, but that said defendant Reed, in preparing a record of said minutes, omitted a part of the said proceedings; that in truth, on the sixtieth day of the said session, February 7, 1889, just before 12 o'clock P. M., the said Speaker inquired if there was any further business; that the clerk replied there was none; said Speaker then requested the journal to be read, which was done by the clerk; that thereupon the proceedings, as recorded in said journal, were approved by the House of Representatives, and by said Speaker declared to be approved; that thereupon, the hour of 12 o'clock midnight having arrived and passed, the Speaker did, after said hour, declare and announce that the time having arrived when, by act of Congress, the session of the legislature must close, therefore he, as Speaker, thereby then and there declared said session closed and adjourned without day; that no objection was made by the House, or any member thereof, to the said adjournment, or to the authority of said Speaker to declare the same adjourned, but all acquiesced therein; that after the Speaker and a part of the members had retired from the room a portion of the members pretended to elect a Speaker pro tem., to wit, one George P. Wheeler, and assumed and attempted to proceed with pretended legislation; that a large number of assumed and pretended bills were assumed to be passed by the said remaining members, and pretended to become the acts of the legislature; that all pretended proceedings on said last day after the Speaker retired were after 12 o'clock midnight, and after said House had been adjourned; that in preparing the journal of said proceedings said clerk omitted to state, and did not state, that the minutes were read and approved by the House; that the Speaker declared the House adjourned; that the House was adjourned by the acquiescence and assent of all the members, and that the Speaker pro tem. was elected after the said adjournment, and the subsequent pretended legislation had and done after such adjournment; that said chief clerk, Charles H. Reed, pretends and asserts that he has made up the journal of said last day's proceedings, has procured the signature of said Wheeler as Speaker pro tem., and delivered the same to Edward J. Curtis, secretary of the territory, but the minutes of proceedings as prepared by said Reed omit the matter as hereinbefore alleged to be omitted, and is a false statement or record of the said proceedings; that the said secretary, Edward J. Curtis, treats and wrongfully holds out the minutes so signed by said Wheeler and the chief clerk as the true minutes, record and journal of the House of Representatives, and is recording the same as such journal, and threatens to certify them to Congress as the journal of said House of Representatives; that he knew that said proceedings of the last day were not signed by the Speaker; that plaintiff, by his attorney Lyttleton Price, has filed, to wit, on the 9th of February, 1889, and before the same were recorded with said secretary, Edward J. Curtis, a demand in writing that he do not record said proceedings, and a protest against the same on the ground that they were not the correct record of the proceedings of the House of Representatives; that the plaintiff did, on the eighth day of February, 1889, demand of the defendant, Charles H., Reed, that he present said minutes of proceedings to the plaintiff for signature; that he failed and refused, and still fails and refuses, to so produce the same; that the rules and practice of said House of Representatives require that the said defendant Reed present all the minutes of proceedings thereof to the plaintiff, as such Speaker, for his signature. Wherefore plaintiff prays that said Edward J. Curtis may produce in court the original minutes, record or proceedings delivered by said Reed to said Curtis, and that said defendant, Charles H. Reed, be required to prepare said journal according to the facts as hereinbefore set forth, and state that said minutes were read and approved; that after the hour of 12, midnight, of February 7, 1889, the Speaker declared said House adjourned sine die; that the House did not object to such adjournment, but acquiesced therein, and in all of the other proceedings hereinbefore stated; and that such journal be handed to the Speaker to sign, and thereafter, when so amended and completed, to be delivered to said secretary of the territory as the minutes of the proceedings of said last day, or that said defendants show cause forthwith why said defendants should not do so."

Upon this petition the court granted an alternative writ of mandate, which was made returnable on the fourteenth day of February, 1889, to which the defendant Curtis demurred, and assigned for grounds of demurrer the following: "1. That this court has no jurisdiction of the person of the defendant; 2. That this court has no jurisdiction of the subject matter of this action; 3. That the plaintiff has not legal capacity to sue, in this: 1. That the plaintiff was not at the time of the commencement of this action, and is not now, the Speaker of the House of Representatives of Idaho territory; 2. That the plaintiff has no beneficial interest in the result of this action; 3. That if the plaintiff is now, or was at the time of the commencement of this action, Speaker of the House of Representatives of Idaho territory, this action should and must have been brought upon the relation of the proper prosecuting officer; 4. That there is a misjoinder of parties defendant herein; that this defendant, as secretary of Idaho territory, is joined as codefendant with Charles H. Reed, clerk of the House of Representatives of Idaho territory; that there is no community of interests or duties between said defendants, and no act, the performance of which this writ was issued to enforce, could be jointly performed by them, and the writ herein requires different and separate acts from each of said defendants; 5. That several causes of action have been improperly joined herein in this: that the defendant, Charles H. Reed, is required to do and perform certain acts, and this defendant required other and different acts, which acts have no relation to each other; 6. That it does not state facts sufficient to constitute a cause of action; 7. That the same is ambiguous and uncertain in this: it does not appear what is required of this defendant; it does not clearly appear who is to make the alterations in the records and journals; it does not appear who has the possession of the journals and records of the House of Representatives, or who did have the possession at the time of the commencement of this action."

The jurisdiction of this court to issue the writ is derived from section 3816 of the Revised Statutes, which is as follows: "Its original jurisdiction extends to the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its appellate jurisdiction."

We do not deem it necessary to notice the various grounds of demurrer as hereinbefore set forth, but will confine our attention to the sixth ground: "That it...