Carr v. Coke

• Decision Date: 18 May 1895
• Citation: 22 S.E. 16,116 N.C. 223
• Parties: CARR. v. COKE, Secretary of State.
• Court: North Carolina Supreme Court

22 S.E. 16

116 N.C. 223

CARR. v. COKE, Secretary of State.

Supreme Court of North Carolina

May 18, 1895

Appeal from superior court, Wake county; Henry R. Starbuck, Judge.

Action by Elias Carr against Octavius Coke, secretary of state, for a writ of mandamus. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Where a bill is duly signed by the president of the senate and speaker of the house, a court cannot go behind this record and inquire whether, in the passage of the bill, it was fraudulently enrolled before it had been read before each house the number of times required by the constitution though such fact is apparent on the face of the journal which each house is required by the constitution to keep of its proceedings.

F. H Busbee and Graham, Boone & Boone, for appellant.

J. B Batchelor and Armistead Jones, for appellee.

FAIRCLOTH C.J.

The plaintiff, as a citizen and taxpayer of the state, brings this action against the defendant, as secretary of state, who, by virtue of his office, is the custodian of all acts passed by the legislature, or which purport to have been passed, whose duty it is to deliver certified copies of said acts to the public printer for publication. The prayer is that the defendant show cause why a peremptory mandamus shall not issue to compel him to remove the act in consideration from his files, and why he should not be enjoined from delivering a certified copy of the same to the public printer. An act to regulate assignments and other conveyances of the like nature in North Carolina, ratified March 13, 1895, is the one under consideration. The complaint alleges that the act was signed by the president of the senate and the speaker of the house of representatives on the said 13th of March, in the presence of each house, and purports to have been ratified upon that day; that, upon information and belief, the act did not become law according to the constitution of the state; that the journals of both houses show that it was not read three times in either; that it was never read in the senate, and was tabled in the house on its second reading; and that by some unknown fraudulent means the bill was enrolled by some person, unknown to the plaintiff, and signed by the said president and speaker by mistake. The defendant answered, denying the material allegations. At the hearing the defendant moved to dismiss the action on the ground that the court had no jurisdiction to grant the relief prayed for by the plaintiff. The motion was heard, and his honor dismissed the action for want of jurisdiction to grant the relief, on the ground that the court cannot go behind the ratification of the act as the same appeared in the office of the secretary of state. With the act before us, on its face regular and in due form, ratified by the genuine signatures of the president of the senate and speaker of the house, the question is presented: Can the court, as a co-ordinate branch of the government, look behind this record, and investigate by inquiry and proof the manner in which this record was established by the legislative branch of the government, for any of the causes alleged in the complaint? It may be stated in the outset that it is an important question, and one that has not been heretofore presented directly to this court. The court cannot be blind to the consequences that will flow from a decision either way. On the one hand, if we cannot look behind the record, then paid and corrupt men, lobbyists, and other interested ones in and around the legislative halls, will feel more confident and safer in their disreputable work. On the other hand, if we can open the door, and permit every act of the legislature to be inquired into, behind the record, for any of the causes alleged in the complaint, then the state will be plagued with all the evils of a veritable Pandora's box. By an examination of the decisions of the courts of the different states, we find some diversity among the decisions and the opinions of eminent jurists. Those courts holding the affirmative of the question as a rule have done so by reason of some provision in their state constitutions, or some pre-existing statutes. In one or more states the negative was held, and, after a change in their constitutions, the reverse was held by reason of some new clause in the organic law. We find in no state constitution the exact wording as it is in ours. We are therefore left to reason with ourselves, and construe the true meaning of our organic law, aided by the best authorities at our command.

Let it now be understood that it is not a question of fraud or wrongdoing in the legislative halls, as alleged in the complaint, with which we are confronted, but simply a question of power. It cannot be said that this court, from its origin until now, has ever failed to lay its hands upon fraud or any wrongdoing, whenever authorized by law and requested to do so. If crimes are perpetrated in legislation the authors are liable, and can be punished as other violators of the law; and possibly a reasonable and honest effort by the proper authorities would bring to light the authors of the wrong, if any has been done. There is now before the court in this proceeding no one who is in the slightest degree alleged or supposed to be connected with wrongdoing in this matter. So, then, we are considering a question of power, and not of investigation behind the record of a co-ordinate branch of the state government. Our constitution (article 2, § 16) declares that "each house shall keep a journal of its proceedings which shall be printed and made public immediately after the adjournment of the general assembly"; and in section 23: "All bills and resolutions of a legislative nature shall be read three times in each house before they pass into laws; and shall be signed by the presiding officers of both houses." What shall be the entries on the journals is not indicated by the constitution, except as above. It is the province and duty of the court to construe and interpret legislative acts, and see if they disregard or violate any provision of the constitution, and, if so found, to declare them invalid, and this is done upon the face of the act itself. Beyond this duty arises the question of power in the court to look behind the legislative record, and inquire into its proceedings for any cause set out in the complaint. Our decision upon this question is based upon the "reason of the thing," upon public policy for the best interests of the state, and upon the decisions of other courts and our own, which commend themselves to our minds, some of which are now cited. At common law the ratification and approval of an act of parliament was conclusive and unimpeachable, etc. "An act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowledges upon earth." "And it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms, and by the same authority of parliament; for it is a maxim in law that it requires the same strength to dissolve as to the create an obligation." 1 Bl. Comm. 185, 186. "The journal is of good use for the intercourse between the two houses, and the like, but when the act is passed the journal is expired. The journals of parliament are not records, and cannot weaken or control a statute, which is a record, and to be tried only by itself." Rex v. Arundel (Trinity Term, 14 Jac.) Hob. 109-111. Brodnax v. Groom, 64 N.C. 244, was a question upon a private act requiring 30 days' notice of application, required by article 11, § 4, of the constitution, and the motion was to prove that the notice had not been given. Pearson, C.J., said: "We are of opinion that the ratification certified by the lieutenant governor and the speaker of the house of representatives makes it a 'matter of record,' which cannot be impeached before the courts in a collateral way. Lord Coke says, 'A record until reversed importeth verity.' There can be no doubt that acts of the legislature, like judgments of courts, are matters of record; and the idea that the verity of the record can be averred against in a collateral proceeding is opposed to all of the authorities. The courts must act on the maxim, 'Omnia praesumuntur,' etc. Suppose an act of congress is returned by the president with his objection, and the vice president and the speaker of the house certify that it passed afterwards by the constitutional majority, is it open for the courts to go behind the record, and hear proof to the contrary?" In Scarborough v. Robinson, 81 N.C. 409, in which this question was not directly before the court, Smith, C.J., in the discussion, uses this language on page 426: "The constitution declares that the legislative, executive, and supreme judicial powers of the government ought to be forever separate and distinct from each other. Article 1, § 8. And if the nature and effect of an enrolled bill, duly certified and deposited in the proper office, be such as we have attributed to it, it unavoidably follows that the compulsory order demanded in the action would be an interference with the legitimate exercise of the lawmaking power, and an obstruction to the harmonious working of the 'separate and distinct' co-ordinate departments of the government, and must consequently be denied." We quote this extract in order to show the trend of the judicial mind of the court as then constituted. In Field v. Clark (1891) 143 U.S. 649, 12 S.Ct. 495, the question was elaborately argued and considered in an able opinion. The allegation was that an important section in the bill as it passed was not in the enrolled bill authenticated by the signatures of the speakers and deposited in the office of the secretary of state. After full...