In re Drainage Dist. No. 1 of Canyon County

• Decision Date: 19 September 1914
• Citation: 26 Idaho 311,143 P. 299
• Parties: In re DRAINAGE DISTRICT No. 1 of CANYON COUNTY
• Court: Idaho Supreme Court

143 P. 299

26 Idaho 311

In re DRAINAGE DISTRICT No. 1 of CANYON COUNTY

Supreme Court of Idaho

September 19, 1914

CONSTITUTIONAL LAW-JOURNALS OF THE HOUSE-EVIDENCE-PASSAGE OF BILLS-WHAT JOURNAL ENTRIES MUST AFFIRMATIVELY SHOW-PRESUMPTION.

1. Under the provisions of sec. 15, art. 3, of the constitution it is provided that no bill shall become a law unless the same shall have been read on three several days in each House previous to its final passage; provided, however, in case of urgency two thirds of the House where such bill may be pending may, upon a vote of the yeas and nays, dispense with that provision.

2. Under the provisions of sec. 13, art. 3, each House is required to keep a journal of its proceedings, and the yeas and nays of the members of each House on any question may be at the request of three members, entered on the journal.

3. The journal entries made by either House may be resorted to as evidence to prove either the regularity or the irregularity of the passage of a law.

4. It will not be presumed in any case from the mere silence of the journals that either House has exceeded its authority or disregarded a constitutional requirement in the passage of legislative acts, unless where the constitution has expressly required the journals to show the actions taken, as, for instance, where it requires the yeas and nays to be entered.

5. Unless the journal shows affirmatively that the legislature has failed to comply with each step required to be taken in the passage of an act under the provisions of the constitution, the presumption is that the legislature did comply with all of such provisions.

6. The case of Cohn v. Kingsley, 5 Idaho 416, 49 P. 985, 38 L.R.A 74, modified.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to determine the validity of what is known as the "Drainage Law." Judgment reversed.

Judgment of the trial court reversed and cause remanded. Costs awarded to the appellant.

H. S. Kessler, for Appellant.

The present members of this bench have not hesitated to express disapproval of the majority opinion in the Cohn Kingsley case. (Swain v. Fritchman, 21 Idaho 783, 125 P. 319.)

The omissions in the journal that have been held fatal to any bill have been omissions of facts which the constitution expressly requires should be entered in the journal. The true rule and the one now almost universally accepted by those authorities which recognize the journal as evidence was stated by Judge Cooley in Cooley's Const. Limitations, 7th ed., p. 193.

"Unless expressly so stated the journal is not required to show that a bill was read at the times and in the manner prescribed by the constitution." (Mass. Mut. Life Ins. Co. v. Colorado Loan & Trust Co., 20 Colo. 1, 36 P. 793; Weyand v. Stover, 35 Kan. 545, 11 P. 355; In re Ellis, 55 Minn. 401, 43 Am. St. 514, 56 N.W. 1056, 23 L. R. A. 287; New Hanover County v. De Rossett, 129 N.C. 275, 40 S.E. 43; Commissioners of Stanley Co. v. Snuggs, 121 N.C. 394, 28 S.E. 539, 39 L. R. A. 439; Mumford v. Sewall, 11 Ore. 67, 50 Am. Rep. 462, 4 P. 585; Illinois v. Illinois Cent. Ry. Co., 33 F. 730, affirmed in 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018; Hollingsworth v. Thompson, 45 La. Ann. 222, 40 Am. St. 220, 12 So. 1; Rash v. Allen, 1 Boyce (Del.), 444, 76 A. 370; Ridgely v. Mayor, 119 Md. 567, 87 A. 909; Webster v. City of Hastings, 59 Neb. 563, 81 N.W. 510; People v. Leddy, 53 Colo. 109, 123 P. 824; State v. Erickson, 39 Mont. 280, 102 P. 336; notes in 40 L. R. A., N. S., 1; 20 Am. & Eng. Ann. Cas. 350; 36 Cyc. 950.)

John C. Rice, for Respondents.

It is conceded that the district court correctly followed the law as laid down by this court in the case of Cohn v. Kingsley, 5 Idaho 416, 49 P. 985, 38 L. R. A. 74, but this court is now asked to overrule that case. In cases of this kind it is uniformly held in this state that journals of the two Houses of the legislature are not only proper, but are conclusive evidence of the facts therein shown. ( Burkhart v. Reed, 2 Idaho 503, 22 P. 1; Clough v. Curtis, 2 Idaho 523, 22 P. 8; Blaine County v. Heard, 5 Idaho 6, 45 P. 890; Brown v. Collister, 5 Idaho 589, 51 P. 417.)

This principle is quite generally adhered to by the courts of the different states of the Union. (Union Bank of Richmond v. Commissioners of Oxford, 119 N.C. 214, 25 S.E. 966, 34 L. R. A. 487.)

"A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable." (Cooley's Const. Lim., 6th ed., p. 68; McCulley v. State, 102 Tenn. 509, 53 S.W. 134, 46 L. R. A. 567; Baker v. Lorillard, 4 N.Y. 261.) Since the decision was announced in the case of Cohn v. Kingsley, both Houses of the legislature of this state have accepted the construction of the constitution there laid down as binding, and have re-enacted practically all statutes passed prior to that decision in order that the question of their constitutionality might not be successfully raised. Therefore, there is every reason for adhering to the rule as announced in the case of Cohn v. Kingsley, and the cases subsequent thereto decided by this court.

SULLIVAN, C. J. Truitt, J., concurs.

OPINION

SULLIVAN, C. J.

This appeal involves the constitutionality of what is known as the "Drainage District Law" of this state, passed at the twelfth session of the legislature and found in 1913 Session Laws, p. 58. It is contended that said act was not passed by the legislature in accordance with the provisions of sec. 15, art. 3, of the constitution. Said section of the constitution 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.

"Provided, In case of urgency, two thirds of the House where such bill may be pending, may, upon a vote of the yeas and nays, dispense with this provision. On the final passage of all bills, they shall be read at length, section by section, and the vote shall be by yeas and nays upon each bill separately, and shall be entered upon the journal; and no bill shall become a law without the concurrence of a majority of the members present."

It is contended that it does not appear from the journal entries of the House of Representatives that said bill was read on three several days in said House or that it was read at all, and that the journal entries do not show that the provisions of said section of the constitution requiring a bill to be read on three several days had been dispensed with.

The only other section of the constitution referring to legislative journals is sec. 13, art. 3, which is as follows:

"Each House shall keep a journal of its proceedings; and the yeas and nays of the members of either House on any question shall at the request of any three members present be entered on the journal."

That section requires that each House shall keep a journal of its proceedings, and specifically provides that at the request of three members the yeas and nays must be entered on the journal.

The journal entries of the Senate in regard to the passage of this bill by the Senate are not attacked in this proceeding, but the attack is directed against the journal entries of the House of Representatives. The House journal shows that Bill 92, containing the act in question, was introduced by Elliott and the entries in regard thereto are as follows:

"January 25, 1913. Page 78.

". . . . INTRODUCTION, FIRST READING AND REFERENCE OF BILLS, JOINT RESOLUTIONS AND JOINT MEMORIALS.

"H. B. No. 92, by ELLIOTT.

"An Act entitled 'An Act to provide for the establishment of drainage districts, and the construction and maintenance of a system of drainage, and to provide for the means of payment of the costs thereof, and declaring an emergency.'

. . . .

"The following bills were referred to their respective committees: H. B. No. 92. Water Ways and Drainage.

"(Seal) . . . .

"January 27, 1913. Page 81.

. . . .

"REPORT OF STANDING COMMITTEES.

. . . .

"Mr. Speaker: We, your Committee on Water Ways and Drainage, beg leave to report that we have considered H. B. No. 92 and recommend that same be printed.

"GILCHRIST, Chairman.

"Report adopted.

. . . .

"January 30, 1913. Page 103.

. . . .

"REPORT OF STANDING COMMITTEES.

"Mr. Speaker: We, your Committee on Printing, beg leave to report that we have had correctly printed H. B. Nos 92

"WRIGHT, Chairman.

"Report adopted.

. . . .

"February 3, 1913. Pages 112-114.

"REPORT OF STANDING COMMITTEES.

. . . .

"Mr. Speaker: We, your Committee on Waterways and Drainage, beg leave to report that we have considered H. B. Nos. 92 and recommend that they do pass.

"GILCHRIST, Chairman.

"Report adopted.

"(Seal) . . . .

"MOTIONS AND RESOLUTIONS.

. . . .

"Moved by Elliott that all rules of the House interfering with the immediate passage of H. B. Nos. 92 be suspended; that the portions of section 15 of article 3 of the Constitution of the State of Idaho, requiring all bills to be read on three several days, be dispensed with, this being a case of urgency, and that H. B. Nos. 92 be read the second time by title and the third time at length, section by section, and be put upon their final passage.

"Seconded by Farmin.

"Moved by Ferguson...