Evans v. Browne

• Citation: 30 Ind. 514
• Parties: EVANS, Auditor of State, v. BROWNE.
• Decision Date: 01 May 1869
• Court: Indiana Supreme Court

30 Ind. 514

EVANS, Auditor of State, v. BROWNE.

Supreme Court of Indiana

MAY TERM, 1869

May 1, 1869

STATUTE.—Judicial Cognizance of.—The courts of this State must take judicial notice of what is and what is not the public statutory law of the State.

SAME.—Limit of Judicial Inquiry.—Official Authentication.—Where a statute is authenticated by the signatures of the presiding officers of the two houses of the legislature, the courts will not search further, to ascertain whether such facts existed as gave constitutional warrant to those officers to thus authenticate the act as having received legislative sanction in such manner as to give it the force of law.

APPEAL from the Marion Common Pleas.

The appellee was the plaintiff below,and filed his complaint under oath, alleging, that by an act of the General Assembly of the State of Indiana, passed at the special session thereof in the year 1869, entitled, "An act making specific appropriations for the year one thousand eight hundred and sixty-nine and eighteen hundred and seventy," which act was in full force and effect on the 24th day of May, 1869, and from that time hitherto; it was, among other things, enacted as follows: "Sec. 17. That Thomas M. Browne he allowed the sum of fifteen hundred dollars, for services as attorney to the Morgan Raid Commission, by appointment from Governor Baker, as provided for in the concurrent resolutions of the General Assembly of the State of Indiana, for the year 1867;" that on the 24th day of May, 1869, the plaintiff, said Thomas M. Browne, demanded of the defendant, John D. Evans, Auditor of State, at the office of the Auditor of State, in the city of Indianapolis, that he draw a warrant as such Auditor of State, in favor of the plaintiff on the Treasurer of State of the State of Indiana, for the said sum of fifteen hundred dollars, duo and payable to him out of the Treasury of the State of Indiana, by said act; that said Evans, as such Auditor of State, utterly refused to issue or draw said warrant, and still refuses. Prayer for a writ of mandate directed to, commanding, and requiring said Evans, as such Auditor of State, to issue and draw said warrant for fifteen hundred dollars upon the Treasurer of State in favor of the plaintiff, without delay.

The defendant answered in one paragraph, admitting the said allowance to the plaintiff, by said act, as stated in the complaint, but charging that said act did not become a law of the land, binding and justifying the defendant in acting under the same by drawing his official warrant on the Treasury for the several sums of money therein appropriated, for the reason that said bill, after its passage in the House of Representatives, was reported, in conformity to usage,to the Senate for its action, and was by the Senate amended in many important particulars, by the addition of many new sections, making additional appropriations; that the bill thus amended was returned to the House, and before the amendments so made by the Senate were considered and acted on by the House, forty-two members of said House of Representatives resigned their offices as members of said House, by presenting and delivering to the Governor of the State their resignations in writing, which were filed with the Governor on the 13th day of May, 1869, thereby then and there destroying the capacity and power of said House of Representatives to legislate and transact business coming before it as one of the branches of the General Assembly of Indiana, reducing the number of its members below sixty-seven, its constitutional quorum, to wit, to fifty-eight; that afterwards, on the 14th day of May, 1869, said House, without said constitutional quorum, concurred in the several amendments of the Senate, and finally passed said bill; that on the same day, the 14th of May, 1869, but not until after said concurrence and passage had taken place, the Governor officially communicated to the House information of the fact that forty-two members of said House had, on the 13th day of May, 1869, so resigned; and hence, that said bill did not, under the forms of the Constitution and in accordance with its requirements, become a law.

To this answer the plaintiff demurred; the demurrer was overruled, and the plaintiff excepted. Reply in two paragraphs:—

First, the general denial.

Second, that on the 13th day of May, 1859, the day before the amendments of the Senate were concurred in, there was had a call of the House, and ninety members were present and answered to their names; that there was a quorum of the members of said House present at the time of the concurrence by the House in the amendments of the Senate to said bill, as appears by the journal of the proceedings of the House. A copy of the journal of the House for the 13th of May, and for the 14th of May up to the time when the Senate amendments were concurred in, is made a part of the reply.

The copy of the journal of the House for the 13th of May, 1869, shows that the House met; that upon a call of the House fifty-one members answered to their names; that the House ordered that the absentees be sent for; that the House adjourned, by a vote of thirty-six to fifteen; that at two o'clock in the afternoon the House met; that a call of the House was had, and ninety members answered to their names; that a motion to lay upon the table a motion to dispense with the further proceedings under the call was disagreed to—ayes, fifteen; noes, fifty-five; that sundry resolutions were passed; that upon a vote on the motion to lay on the table the motion to dispense with the further proceedings under the call, there were fifty-two ayes and three noes; and that the House adjourned.

The copy of the journal of the House for the 14th day of May, filed with the reply, shows that the House met; that on motion,the reading of the journal of May 13th was dispensed with; that a motion for a call of the House was disagreed to; that the House adjourned; that the House met at two o'clock in the afternoon; that on motion, the House took up the message of the Senate containing amendments to the Specific Appropriation Bill; that the message with the amendments was entered upon the journal; that the question being on concurring in the amendments, it was agreed to; that a motion to reconsider the vote concuring in the amendments was laid on the table.

The defendant demurred to the reply, alleging for cause, "that the facts therein stated do not constitute a reply to the facts set up in defendant's answer, and that they are not sufficient in law to justify the order of mandate herein against the defendant."

The demurrer was overruled, and the defendant excepted.

By agreement,the cause was tried by the court. There was a finding for the plaintiff, and it was ordered that the writ of mandate issue against the defendant.

The defendant moved for a new trial, and filed his reasons therefor, as follows:—

"1. The finding, judgment, and order of said court are not sustained by sufficient evidence.

"2. The finding, judgment, and order of said court are contrary to law."

The motion was overruled, and the defendant excepted, and filed his bill of exceptions.

On the trial, the plaintiff proved his demand on the 24th of May, 1869, at the office of the defendant, in Indianapolis, and the refusal of the defendant to issue the warrant.

The defendant admitted that the copy of the journal of the House filed with the reply was a true copy of the original journal of the House of the 13th and 14th of May, up to the time of the concurrence of the House in the Senate amendments; and the copy was introduced in evidence by the plaintiff.

The defendant admitted the allowance of fifteen hundred dollars to the plaintiff by said specific appropriation bill.

In addition to the evidence contained in the bill of exceptions, a certified copy of a message of the Governor is by agreement made part of the evidence and attached to the record. By this message, the Governor communicated to the House, that forty-two members thereof (naming them) presented and delivered to him their resignations as such members, on the 13th of May, 1869; and it is agreed that this message was transmitted by the Governor, through the Speaker, to the House, on the 14th of May, 1869, after the House had concurred in the amendments of the Senate to the specific appropriation bill.

Prefixed to the enrolled act filed in the office of the Secretary of State,is the following statement:—

"House bill No. 311, hereto attached, entitled, 'An act making specific appropriations for the year one thousand eight hundred and sixty-nine, and eighteen hundred and seventy,' having been presented to me on the 15th day of May, 1869, and the final adjournment of the General Assembly having taken place on the 17th day of May, 1869, and said act not having been approved and signed by me, and not having been filed in the office of the Secretary of State with my objections thereto within five days after said adjournment, said act therefore took effect, under the constitution, without executive approval, on the 22d day of May, 1869; and in now filing it in the office of the Secretary of State, I deem it my duty to accompany it with a statement of facts as to the manner of its passage. The bill having regularly passed the House, was reported to the Senate, and was amended in many material particulars by the Senate, by the addition of many new sections making additional appropriations. Thus amended, the bill was returned to the House, and before the amendments so made by the Senate were considered by the House, forty-two members of the House resigned their offices as members of the House of Representatives, by presenting and delivering to the Governor their resignations in writing. These resignations were made on the 13th day of May, 1869, and afterwards, on the 14th day of May, 1869, the House of Representatives concurred in the said amendments of the Senate to said bill; and on the same day, but...