Cohn v. Kingsley

• Citation: 5 Idaho 416,49 P. 985
• Parties: COHN v. KINGSLEY
• Decision Date: 09 July 1897
• Court: United States State Supreme Court of Idaho

49 P. 985

5 Idaho 416

COHN v. KINGSLEY

Supreme Court of Idaho

July 9, 1897

CONSTITUTIONAL LAW-PROVISIONS THAT ARE MANDATORY.-The provisions of the constitution requiring three several readings, the printing of bills, and an aye and nay vote on final passage of any bill, are mandatory.

LEGISLATURE IN PASSING AN ACT MUST COMPLY WITH PROVISIONS OF CONSTITUTION.-To ascertain whether or not the legislature, in the passage of a bill, complied with the requirements of the constitution, the court may go back of the enrolled bill to see if the journals of both Houses of the legislature show that the require- ments of the constitution were obeyed in the passage of the act in question.

WHAT THE JOURNAL OF LEGISLATURE MUST SHOW.-The journal of both Houses of the legislature must affirmatively show that the provisions of the constitution in regard to the passage of any law were substantially followed by the legislature in the passage of an act, the validity of which is questioned.

SAME.-While the journals of both Houses of the legislature are entitled to absolute verity, and cannot be contradicted, yet if the journals fail to show that any step required by the constitution in the passage of a law was taken, such failure to show that such step was taken is conclusive evidence that it was not taken.

HOW ONLY PROVISIONS OF CONSTITUTION MAY BE SUSPENDED.-Neither House of the legislature can suspend the provisions of the constitution which requires three readings on separate days in each House, except in case of urgency, and then only on an aye, and nay vote by two-thirds of the House, voting with reference to only one bill then before each house.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded, with instructions.

W. E Borah, A. A. Fraser and Hawley & Puckett, for Appellant.

The supreme court of Idaho has said: "It seems to be well settled that the court will take judicial knowledge of the journal of a legislative body to determine whether the act of a legislature is constitutionally passed and for the purpose of determining what has been done by the legislature." ( Burkhart v. Reed, 2 Idaho 503, 22 P. 1.) The following decisions by our supreme court are to the same effect: Clough v. Curtis, 2 Idaho 522, 22 P. 8; Blaine County v. Heard, ante, p. 6, 45 P. 890; Wright v. Kelly, 4 Idaho 624, 43 P. 565; Bellevue W. Co. v. Stockslager, 4 Idaho 636, 43 P 568. The constitution requires each House to keep a journal and declares that certain facts made essential to the passage of a law shall be stated therein. If these facts are not set forth, the conclusion is that they did not transpire. The journal is made up under the immediate direction of the House and is presumed to contain a full and complete history of its proceedings. When a contest arises as to whether the act was thus passed the journal may be appealed to to settle it. It is the evidence of the action of the House and by it the act must be sustained or fall. (Spangler v. Jacoby, 14 Ill. 297, 58 Am. Dec. 571, and note; Santa Clara Railroad Tax Case, 9 Saw. 165, 18 F. 385; Hunt v. State, 22 Tex App. 396, 3 S.W. 233; Union Bank v. Commissioners, 119 N.C. 214, 25 S.E. 966, citing all the authorities; H. & T. C. R. Ry. Co. v. Odum, 53 Tex. 343; State v. Platt, 2 S.C. 150, 16 Am. Rep. 647; People v. Starne, 35 Ill. 140, 85 Am. Dec. 348, and note; Ryan v. Lynch, 68 Ill. 162; Burr v. Ross, 19 Ark. 250; Southwark Bank v. Commonwealth, 26 Pa. St. 446; Green v. Graves, 1 Doug. 351; Opinion of Justices, 35 N.H. 579; State v. Francis, 26 Kan. 731; State v. Buckley, 54 Ala. 613; Perry v. Railroad Co., 58 Ala. 546; State v. McConnell, 3 Lea, 322; Williams v. State, 6 Lea, 549.)

Section 15, article 3 of the constitution of the state of Idaho is as follows: "No law shall be passed except by bill, nor shall any bill be put upon its final passage until the same, with the amendments thereto, shall have been printed for the use of the members, nor shall any bill become a law unless the same shall have been read on three several days in each House previous to the final vote thereon." The appellant contends that this provision of our constitution is a limitation upon the powers of the legislature. (Field v. People, 2 Scam. 79; Burritt v. Commissioners, 120 Ill. 322, 11 N.E. 180, and cases there cited.) We also contend that this provision of our constitution is mandatory. (Jones v. Hutchinson, 43 Ala. 712; Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; Burritt v. Commissioners, 120 Ill. 322, 11 N.E. 180; Lincoln v. Haugan, 45 Minn. 451, 48 N.W. 196; Cooley's Constitutional Limitations, sec. 171; Supervisors v. Heenen, 2 Minn. 281, 330; State v. Patterson, 98 N.C. 660; 4 S.E. 350.) Nor can the courts enlarge the scope of the title. They are possessed with no dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been more comprehensive, if, in fact, the legislature have not seen fit to make it so. The supreme court of Pennsylvania, speaking with reference to this provision of the constitution, says: "It is enough for us to know that it is an express mandate of the organic law, which the legislature ought to obey, and the courts are bound to enforce." (In re Road v. Phoenixville, 109 Pa. St. 144; Montgomery v. State, 88 Ala. 141, 7 So. 51; State v. Hallock, 19 Nev. 384, 12 P. 832; State v. Hoadley, 20 Nev. 317, 22 P. 99; Board of Supervisors v. McGruder, 84 Va. 828, 6 S.E. 232; Lane v. State, 49 N. J. L. 673, 10 A. 360; Ryerson v. Utley, 16 Mich. 269; Carter Co. v. Sinton, 120 U.S. 517, 7 S.Ct. 650; Montclair v. Ramsdell, 107 U.S. 147, 2 S.Ct. 391; Ex parte Thomason, 16 Neb. 238, 20 N.W. 312.)

Attorney General R. E. McFarland, for the Respondent.

This case is submitted on an agreed statement of facts and involves the validity of the act of the legislature, approved March 12, 1897, regulating the fees and compensation of the various county and precinct officers within the state of Idaho also the applicability of the provisions of said act to officers who were elected, qualified, and acting prior to the passage of said law. In considering the first proposition the following questions arise: 1. Can the court go behind the enrolled bill and to the journal of each House of the legislature when inquiring into the question as to whether the constitutional requirements were complied with in the passage of the bill and for the purpose of passing upon the validity of the act? 2. If the court can go behind the enrolled bill to the journals, is the act void by reason of a failure of the journals to show a compliance with the requirements of the constitution in the passage of the bill? Upon the first question, the authorities are not uniform. Many courts hold that a court may go behind the enrolled bill and look into the journal, but we respectfully submit that the better authorities and the weight of reasoning hold that the enrolled law is conclusive evidence of its due passage. ( Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93; People v. Burt, 43 Cal. 560; Green v. Weller, 32 Miss. 620; Territory ex rel. McMahon v. O'Connor, 5 Dak. 397; 41 N.W. 746; Pangborn v. Young, 32 N. J. L. 29; Louisiana Lottery Co. v. Richoux, 23 La. Ann. 743, 8 Am. Rep. 602; Swan v. Buck, 40 Miss. 268; Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825; Pacific R. R. Co. v. Governor, 23 Mo. 353, 66 Am. Dec. 673; State v. Swift, 10 Nev. 176, 21 Am. Rep. 721; Evans v. Brown, 30 Ind. 574; Dincomb v. Prindle, 12 Iowa 1; Koehler v. Hill, 60 Iowa 543, 14 N.W. 738, 15 N.W. 609; Mayor v. Harwood, 32 Md. 471, 3 Am. Rep. 161; People v. Devlin, 32 N.Y. 269; Broadnax v. Groom, 64 N.C. 244; Miller v. State, 3 Ohio St. 475.) The constitution nowhere prescribes what the journal of each House shall contain except in certain particulars. It was no doubt intended by the framers of the constitution to require a journal to be kept by each House, showing the history of each legislative enactment and the proceedings through which it passed; but we do not concede that this provision of the constitution was intended to render invalid a legislative enactment when the journal does not show affirmatively a full compliance with each constitutional requirement when the constitution itself does not require the journal so to show. (State v. Illinois Cent. R. R. Co., 33 F. 730; In re Roberts, 5 Colo. 525.) As all particulars of compliance with the constitution are not specifically required to be entered upon the journals, such compliance will be presumed in the absence of proof to the contrary; the silence of the journals will not be accepted as proof that a proceeding required and not found recorded was omitted, even though it be a proceeding required in the two Houses, and such as would have appeared in the journals if occurred and they contained a memorial of all that was done. (Sutherland on Statutory Construction, sec. 47, p. 48; Black on Interpretation of Laws, 225; Bond Debt Cases, 12 S.C. 200.) Under a constitution which requires certain proceedings to be had before the passage of a bill, but which does not provide that such proceedings shall be entered upon the journals, the presumption always is, when an act, as signed and enrolled, does not show the contrary, it has gone through all necessary formalities. (Cooley's Constitutional Limitations, 163, 167; Sutherland on Statutory Construction, secs. 46, 47, p. 47; Black on Interpretation of Laws, sec. 13, p. 21; State v. McConnell, 3 Lea, 341; Blessing v. Galveston, 42 Tex. 641; State v. Francis, 26 Kan. 724; Miller v. State, 3 Ohio St. 475.)

QUARLES, J., HUSTON, J. Sullivan, C. J., Huston, J., and QUARLES, J., Concurring. SULLIVAN, C. J., Dissenting.

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