Common Council of City of Detroit v. Board of Assessors of City of Detroit

• Decision Date: 18 March 1892
• Citation: 51 N.W. 787,91 Mich. 78
• Court: Michigan Supreme Court
• Parties: COMMON COUNCIL OF CITY OF DETROIT v. BOARD OF ASSESSORS OF CITY OF DETROIT.

51 N.W. 787

91 Mich. 78

COMMON COUNCIL OF CITY OF DETROIT v. BOARD OF ASSESSORS OF CITY OF DETROIT.

Supreme Court of Michigan

March 18, 1892

Application for mandamus, on the relation of the common council of the city of Detroit, to the board of assessors of the city, to make assessments according to the provisions of Act No. 200 of the Public Acts of 1891. Writ allowed.

The provision of Act 200, Laws 1891, providing for the taxation of real-estate mortgages to the owners thereof, that the mortgagor may pay the tax assessed against the mortgage interest in case of the mortgagee's default, and deduct the same from the amount owing on the mortgage, does not impair the obligation of contracts, even though the deduction be from principal not yet due; it being merely the excusing of the mortgagor from paying the amount of the mortgage debt attached or seized by the state.

A. A. Ellis, Atty. Gen., and C. S McDonald, Asst. City Atty., for relator.

John J. Speed, City Counselor, (John W Champlin, Benton Hanchett, and F. A. Baker, of counsel,) for respondent.

MONTGOMERY J.

This proceeding brings before us for examination Act 200 of the Laws of 1891, being a revision of the general tax laws of the state. It is claimed- First, that this purported statute, as it appears upon the statute-book, was not duly enacted; and, second, that the law as promulgated is in parts unconstitutional.

1. It has been repeatedly held that the court may look beyond the engrossed bill to the legislative journals with a view to ascertaining whether the legislature enacted the statute. This has long been a recognized power of the court, frequently invoked. People v. Mahaney, 13 Mich. 492; Attorney General v. Joy, 55 Mich. 94, 20 N.W. 806; Attorney General v. Burch, 84 Mich. 408, 47 N.W. 765. In many of the states the court has denied that this power rests with the judiciary, and have held that the engrossed bill, duly authenticated, is final, and cannot be impeached. This court, while adhering to the view that the journals are open to inspection, has frequently, and particularly in the later cases, held that every intendment is in favor of the due enactment of the statute which has received the executive sanction, and that to overcome this legal presumption the journal must show conclusively that the statute which received the signature of the governor was not duly passed. Attorney General v. Burch, 84 Mich. 408, 47 N.W. 765; Hart v. McElroy, 72 Mich. 450, 40 N.W. 750, and cases cited.

The history of the present statute, so far as it is important to be noted, is as follows: On June 29th, after the bill had been amended, it was voted "that the bill be laid on the table, and ordered printed as a supplement in to-day's journal." The bill had the file number 340, and was a substitute for house bill No. 178. A supplement to the house journal was printed as of the date June 29th, with the heading: "File No. 340. House of Representatives. Substitute for Senate Bill No. 178.

(Introduced by Mr. Doremus.) Ordered printed for use of the committee on judiciary. Lansing, June 29, 1891,"-followed by the title. The bill contained 116 sections. On June 30th, Mr. Doremus moved that house substitute for senate bill No. 178 (file No. 340) be taken from the table and placed on its immediate passage, which motion prevailed. The question being on the passage of the bill, the bill was read a third time, and pending the vote on the passage thereof, on motion of Mr. Doremus, the bill was laid on the table. On July 1st Mr. Doremus moved that house substitute bill No. 178 (file No. 340) be taken from the table and put on its immediate passage, which motion prevailed. Numerous amendments were then made to the bill, and after such amendments the bill duly passed the house, which was the final action taken by the house on the bill. If it be the fact that the bill as printed was the bill with which the house was dealing on July 1st, it is entirely clear that the bill as it passed the house is not the bill engrossed and signed by the governor, as it appears that the bill as printed contains numerous entire sections which were not eliminated by amendment, but which do not appear in the law as signed, while the engrossed bill contains numerous provisions which are not contained in the printed bill as it would stand amended by incorporating the amendments made on July 1st.

It is claimed, however, that the journal itself furnishes on its face evidence that after the bill in question was printed in the journal the house dealt, not with the printed bill, but with some other instrument, and that it is fairly to be inferred from what appears on the face of the journal that there were errors in the printing of the bill which the house discovered, and which led to the abandonment of the printed copy appearing in the journal. These evidences are as follows: (1) It appears that the house took up the bill by its title and reference as printed in the journal, and before taking action on it laid it on the table, and that, when the bill was again taken up, it was referred to, not as a substitute for senate bill 178, but as a substitute for house bill 178, which it really was. (2) The amendments offered from time to time do not correspond with the bill as printed. As, for instance, one amendment offered was by inserting in line 1 of section 33, after the word "time," the words "or upon any mortgage or other obligation taxed as an interest in lands owned by such persons as provided by this act." Not only does it appear by section 33 as printed that the word "time" does not appear in line 1, but it further appears that there is no provision in section 33 to which the proposed amendment is in any way germane. Without tracing all the instances through, it appears beyond cavil that the amendments could not have been offered with reference to the printed copy. (3) The bill as printed had its sections numbered consecutively, and was not after being printed considered at all in committee of the whole; and yet we find on July 1st the following in the journal: "Mr. Doremus stated that certain sections in the bill had been stricken out and some added in the committee of the whole, which, with the above amendments, would not leave the sections in consecutive order; and thereupon Mr. Doremus further moved to amend the bill by directing the engrossing and enrolling committee to renumber the sections of the bill so that they should be numbered as near as may be by consecutive numbers, which motion prevailed, and the sections of the bill were thereupon accordingly renumbered." This action of the house makes it entirely clear, not only that the house was not dealing with the bill as printed in the journal, but also that they were not dealing with an exact copy of the same. It appears, however, that this last-quoted section does not appear in the house journal as it was printed from day to day; and it is suggested, therefore, that this must be disregarded. But it does appear in the bound volume published by authority and certified by the clerk of the house. The daily journal, as printed, is subject to amendment. Are we at liberty to infer that this emendation is a forgery? It seems to me that the case of Attorney General v. Burch, 84 Mich. 408, 47 N.W. 765, furnishes a decisive answer to this question. In that case the journal as printed from day to day, and as printed in the bound volume, showed the following: "Mr. Wesselius moved to reconsider the vote by which the senate passed the bill, which motion prevailed. The question being on the passage of the bill, on motion of Mr. Wesselius, the bill was ordered returned to the house." At the close of the senate journal, and preceding the certificate of the secretary, which bore date July 3, 1891, is a page headed: " Errata in the Record of Bills. * * * On page 811, lines ten and eleven, the vote reconsidered was not the passage of the bill, but the vote by which the senate concurred in the house amendments to the bill on page 797." The court say: "It does not affirmatively appear at what time the secretary made this correction of the record, but it is to be presumed, from the place where the errata is found, that he made it on or before the date of his certificate, July 3, 1889, as the certificate follows the correction. The legislature adjourned sine die upon that date; and, as every intendment is to be taken in favor of the correctness of legislative action, it must also be presumed that the correction was made before the adjournment of the senate. If it was done, as we must presume that it was, before the final adjournment of the legislature, we must also presume that it was authorized by the senate, and that the true journal entry of the proceedings is as corrected by the ' errata."' So in the case of the law under consideration. The house adjourned July 3, 1891. The certificate of the clerk bears date July 3, 1891, and as the correction to the daily journal as originally printed appears before his certificate, and indeed as of a prior date, we must presume that it was made before the final adjournment of the legislature, and we must also presume that it was authorized by the house.

In McCulloch v. State, 11 Ind. 424, the court in speaking of such records said: "This journal must be held conclusive evidence of the facts which appear upon its face because it must be presumed that the members as a body inspected it and made all necessary corrections before they allowed it to assume the character of a journal of their proceedings. As well might evidence be received to contradict a statute to show that it contains certain provisions inserted through mistake as to contradict an entry made upon the journal. The house keeping the journal is the only tribunal by...