Harwood v. Wentworth

• Decision Date: 26 December 1895
• Docket Number: Civil 485
• Citation: 4 Ariz. 378,42 P. 1025
• Parties: W. A. HARWOOD, Defendant and Appellant, v. A. WENTWORTH, Plaintiff and Appellee
• Court: Arizona Supreme Court

42 P. 1025

4 Ariz. 378

W. A. HARWOOD, Defendant and Appellant, v. A. WENTWORTH, Plaintiff and Appellee

Civil No. 485

Supreme Court of Arizona

December 26, 1895

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. J. D. Bethune Judge.

Affirmed.

Barnes & Martin, for Appellant.

This law is unconstitutional and void, because in violation of that provision of the so-called Harrison Act which prohibits the passage of local or special laws creating, increasing, or decreasing fees, percentage, or allowances of public officers during the term for which said officers are elected or appointed.

This act, for the purpose of fixing the compensation of officers divides counties into six classes, based upon the assessment of property.

This classification violates the principle of uniformity, and is void.

Classification by population has been upheld as approximately equal, and so general. But such a classification as this, which affects the people in one part of the territory differently than in others, is local and special. This law makes the county recorder ex officio clerk of the board in all but counties of the first class. It therefore legislates the clerks appointed by the boards in all the counties, except three, out of office. The law allows the board to allow a deputy to the recorder in some of the counties and in others does not, so differently affecting those now in office, and hence it is local and special.

The classification must be reasonable, the objects must be germane to the legislative purpose, with similar characteristics and like relations, and if not so, the classification is incomplete and faulty, and the legislation void. State v. Trenton, 42 N. J. L. 486; State v. Parsons, 40 N. J. L. 11; State ex rel. Helfer v Simon, 53 N. J. L. 550, 22 A. 120; Earle v Board, 55 Cal. 489; State v. Trenton, 54 N. J. L. 444, 24 A. 478; State ex rel. Randolph v. Wood, 49 N. J. L. 88, 7 A. 286; Sutherland on Statutory Construction, secs. 127, 128, 129.

George W. Swain, District Attorney, for Appellee.

Wiley E. Jones, Amicus Curioe.

This action questions the validity of Act No. 51 of the eighteenth legislative assembly, generally known as the "County Classification Law."

Can an enrolled bill, duly signed by the presiding officers of both houses of the legislature, approved by the governor, and deposited in the office of the secretary of the territory, be impeached by the journals of the legislature or other purported evidence, as sought by appellant in this case?

It has been well settled in English courts that it is not competent to go behind the enrolled bill, as the parliament roll is considered a record of as great dignity as a court of record, importing absolute verity. 2 Blackstone's Commentaries, 330, says: "A record or enrollment is a monument of so high a matter, and importeth in itself such absolute verity, that if it be pleaded there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only by itself."

Paragraph 1862 of the Revised Statutes of Arizona adopts the common-law rule of evidence in the following language: "The common law of England, as now practiced and understood, shall, in its application to evidence, be followed and practiced by the courts of this territory, so far as the same may not be inconsistent with this or any other law."

Paragraph 1867 Id. says: "The printed statute-books of this territory . . . shall be received as evidence of the acts and resolutions therein contained."

There is no law known to Arizona which recognizes or constitutes the journals of either house evidence for any purpose.

In the United States, seventeen states of the union and three territories, in their latest decisions, have held that the enrolled bill, duly signed by the presiding officers, approved by the governor, and deposited in the office of the secretary, is conclusive of its passage.

In other states where the journals have been explored by the courts, it was in recognition of an express provision of the constitution of such states which imposed certain restrictions upon the legislature that must be observed and such fact "entered upon the journals."

See Shuley Co. v. People, 25 Ill. 163; Town of South Ottawa v. Perkins, 24 U.S. 154; People v. Starne, 35 Ill. 133, 85 Am. Dec. 348; Wabash Ry. Co. v. Hughes, 38 Ill. 186; Hensoldt v. Petersburg, 63 Ill. 159; Larrison v. P. D. and A. Ry. Co., 77 Ill. 11; In re Roberts, 5 Colo. 535; Massachusetts Mut. Life Ins. Co. v. Colorado Loan and Trust Co., 20 Colo. 6, 36 P. 794; Currie v. Southern Pacific Co., 21 Or. 566, 28 P. 884; State v. Rogers, 22 Or. 348, 30 P. 77; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3; People v. Dunn, 80 Cal. 211, 13 Am. St. Rep. 118, 22 P. 140.

The constitutions of the following states require the votes of each house to be taken on the final passage of every bill and entered on the journals, thereby making them evidence of the passage of laws: Arkansas, California, Colorado, Florida, Idaho, Illinois, Iowa, Kansas, Maryland, Montana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, South Dakota, Ohio, West Virginia, Washington, Wyoming, Tennessee.

In Alabama it is held that the validity of the seeming acts may be inquired into; but in its latest decision on the subject the court said: "If a particular thing is required by the constitution to be done, but not to be recorded, the mere silence of the journals will not invalidate it." Hall v. Steele, 82 Ala. 562, 2 South, 650.

This court held that the journals were not evidence of passage in the absence of the enrolled act. Graves v. Alsap, 1 Ariz. 276, 25 P. 836.

In Arkansas the journals control the enrolled act. Glidewell v. Martin, 51 Ark. 559, 11 South, 882. It is noticeable that in this case, the latest decision in that state, the judges delivering the opinion intimate a wish that the English rule was in force, and the enrolled act conclusive.

In California the rulings have been various. In Fowler v. Pierce, 2 Cal. 165, the court permitted oral evidence to be introduced to show that an act was approved by the governor after adjournment. This case was overruled in Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93, where it was held that the enrolled act could not be impeached by the journals. This was followed in People v. Burt, 43 Cal. 560. After these two cases were decided, a new constitution was adopted in California, under which the journals have been examined to impeach the enrolled bill. County of San Mateo v. Southern Pacific Ry., 8 Saw. 238, 13 F. 722; Weil v. Kenfield, 54 Cal. 111; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3; People v. Dunn, 80 Cal. 211, 13 Am. St. Rep. 118, 22 P. 140.

In Connecticut the journals cannot be used to impeach the recorded act. Eld v. Gorham, 20 Conn. 8.

In Dakota Territory v. O'Connor, 5 Dak. 397, 41 N.W. 746, it was held that the signatures of the presiding officers to the passage of the enrolled bill is conclusive in the silence of the journals. (The question of a conflict between the enrolled act and the journals was not considered.)

In Delaware we are not aware of any case on the subject, nor in Georgia, although the court in the latter state has said: "No evidence except the journals is competent to show a failure to comply with the constitution." Speer v. City of Athens, 85 Ga. 49, 11 S.E. 802.

In Illinois the journals control in any conflict between them and the enrolled acts as to the validity thereof. Spangler v. Jacoby, 14 Ill. 297, 58 Am. Dec. 571; Turley v. Logan County, 17 Ill. 151; People v. Hatch, 19 Ill. 283; Prescott v. Illinois etc. Canal Trustees, 19 Ill. 324; Schuyler County v. People, 25 Ill. 181; People v. Starne, 35 Ill. 121, 85 Am. Dec. 348; Wabash etc. R. R. Co. v. Hughes, 38 Ill. 174.

In Indiana now the journals do not control the enrolled act. Formerly they were consulted for the purpose of impeaching the act. The journals were referred to in Skinner v. Deming, 2 Ind. 558, 54 Am. Dec. 463; Coleman v. Dobbing, 8 Ind. 156; McCulloch v. State, 11 Ind. 424; Coburn v. Dodd, 14 Ind. 347. The rule was changed, and the enrolled act held conclusive of its passage. Evans v. Browne, 30 Ind. 514, 95 Am. Dec. 710; Bender v. State, 53 Ind. 254; Edgar v. Board of Commissioners, 70 Ind. 331; State v. Denny, 118 Ind. 382, 21 N.E. 252.

In Iowa the enrolled act in the secretary's office is held to be the ultimate proof of the law. Clare v. State, 5 Iowa, 510; Duncombe v. Prindle, 12 Iowa 1. Where the validity of a constitutional amendment was in question, different provisions of the constitution apply. It was held that the journals could be consulted. Koehler v. Hill, 60 Iowa 543, 14 N.W. 738, 15 N.W. 609.

In Kentucky the question has not been squarely decided whether the journals in a conflict would overcome the presumption of the enrolled act, but the intimation of the court is that it would. Commissioners v. Jackson, 5 Bush, 680; Auditor v. Haycroft, 14 Bush, 284.

In Louisiana it is held that the enrolled act is conclusive. Louisiana State Lottery Co. v. Richoux, 23 La. Ann. 743, 8 Am. Rep. 602; Whited v. Lewis, 25 La. Ann. 568.

In Maine the enrolled act is held to be the best evidence, and not to be overcome by the journals where its record is complete. Weeks v. Smith, 81 Me. 538, 18 A. 325.

In Maryland the enrolled act was first held to be conclusive. Afterwards the decisions are that it may be impeached by the journals. The first series of cases is Fouke v. Fleming, 13 Md. 392; Mayor of Annapolis v. Harwood, 32 Md. 471, 3 Am. Rep. 161.

Under the new constitution controlling the legislature in its acts the following cases held that the enrolled...