In re Granger
| Decision Date | 05 October 1898 |
| Docket Number | 10142 |
| Citation | 76 N.W. 588,56 Neb. 260 |
| Parties | IN RE HERMAN F. GRANGER |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HOLMES, J. Affirmed.
AFFIRMED.
Tibbets Bros., Morey & Ferris, for petitioner:
The statute under which applicant was sentenced is unconstitutional and void, hence the court had no jurisdiction to impose the sentence. (In re McVey, 50 Neb. 483.)
Upon an application for a writ of habeas corpus the constitutionality of the statute under which applicant was convicted will be inquired into, and if found to be unconstitutional the writ will be granted. (Ex parte Smith, 36 S.W. 628 [Mo.]; Ex parte Marmaduke, 91 Mo. 228; In re Thompson, 117 Mo. 83; In re Betts, 36 Neb. 282; In re Havlik, 45 Neb. 747; Ex parte Donahoe, 24 Neb. 66.)
Evidence from other sources than the record may be introduced.
Courts take judicial notice of the journals of the legislature to ascertain the validity of a statute.
R. C Noleman, also for petitioner.
C. J. Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state.
The facts are stated by the commissioner.
This application for a writ of habeas corpus was denied in the district court of Lancaster county, and by petition in error the judgment of said court is presented for review in this court. The detention of the applicant was justified by the warden of the penitentiary of this state by a record of the conviction of the applicant of the crime of stealing a cow of the value of $ 20 and his sentence by the district court of Sheridan county to imprisonment for a term of three years which term has not yet expired. The act making the stealing of cattle a felony is chapter 77 of the Laws of Nebraska 1895, carried into the Compiled Statutes as section 117a of the Criminal Code. On the trial there were offered in evidence the portions of the journals of both houses of the legislature of 1895 in which there was reference to the acts of either legislative branch in reference to House Roll No. 87. There was also by the applicant introduced in evidence the copy of a bill showing the approval of the governor and the attestation of the proper officers of each branch of the legislature. At the time the copy of the bill was offered in evidence it was admitted that it was a true and correct copy of House Roll No. 87 as it was enrolled, engrossed, and presented to the governor. By comparison we find its title and language to be identical with those of chapter 77, Laws of Nebraska 1895. Over objections of the respondent there was also offered by the applicant a copy of a bill certified by the secretary of state, which, it was admitted, was a correct copy of the original bill and of its indorsements now on file in the office of said secretary of state. The reliance of the applicant for his right to be released from confinement is upon the showing made by the above evidence of alleged failure to comply with one requirement of section 10, article 3, of our constitution, which is: "No bill shall be passed unless by assent of a majority of all the members elected to each house of the legislature." It is urged that while the act published only shows that it was directed against the stealing of cattle, the act introduced and adopted, in at least one branch of the legislative body, was directed against the stealing of cattle and hogs. Whether or not the existence of the discrepancy has been made to appear by satisfactory evidence we shall now consider.
House Roll No. 87 was introduced in the house under this title: "A bill for an act to punish cattle stealing and to punish persons receiving or buying stolen cattle, and to punish all persons harboring or concealing cattle thieves." The journal of the house discloses that House Roll No. 87, by the title just quoted, regularly passed through the successive stages in the house and was transmitted to the senate under the title above given. While in the house the judiciary committee, to which it had been referred, recommended that it be passed as amended, but there is no other intimation in the journal of the house that there was any amendment. We must therefore assume that this reference to an amendment was without warrant and was probably the result of misapprehension. At any rate this recitation is not of such controlling force that from it we are required to assume that there was an amendment and that it was of such a character as to defeat the action of the house.
In the senate, House Roll No. 87 was introduced under this title: "A bill for an act to punish cattle stealing and to punish persons receiving or buying stolen cattle, and to punish all persons harboring or concealing cattle thieves," and this was the title under which it was referred to the committee on agriculture. When that committee made its report to the senate it was in this language:
"MR. PRESIDENT: Your committee on agriculture, to whom was referred House Roll No. 87, a bill for an act to punish cattle and hog stealing and to punish persons receiving or buying stolen cattle or hogs, and to punish all persons harboring or concealing cattle or hog thieves, have had the same under consideration and instruct me to report the bill back to the senate with the recommendation that it be placed on general file and passed as amended."
The next action taken upon this bill is recited in the senate journal in this language:
After this report the committee on engrossed and enrolled bills reported senate amendments to House Roll No. 87, a bill for an act to punish cattle stealing and to punish persons receiving or buying stolen cattle, and to punish all persons harboring or concealing cattle, and thieves, correctly engrossed. Afterward House Roll No. 87, a bill for an act to punish cattle stealing and to punish persons receiving or buying stolen cattle, and to punish all persons harboring or concealing cattle thieves, was read a third time and passed by the senate. These proceedings in the senate show an attempt to eliminate the word "hog" from the bill, though from the journal of either house we have no means of knowing that it ever was in the bill. Certainly, as already shown, it was not in the title, and if that is to be assumed to be a correct reflex of the scope of the bill, the word "hog" was not in it when it was adopted by the house of representatives. Nevertheless the senate ordered it stricken out of the bill considered in that body, and if the entries in the journal of the other house are to govern as against mere inferences, the senate in fact thereupon passed the bill as it had passed the other house.
The next mention we find of this bill is in the house of representatives, in which the journal recites that the following proceedings were had:
Subsequently it is recited in the journal of the house of representatives that a motion that said house does not concur in the senate amendments to House Roll No. 87 prevailed. The bill was thereupon returned to the senate, in the journal of which body is found the following record:
Afterwards, on motion, the senate receded from its amendments.
The bill under the title and in the form in which we find it published as chapter 77, Laws of Nebraska 1895, was duly approved by the governor and attested by the proper officers of the senate and house of representatives. We have not been able to discover in the journal of either branch of the legislature evidence of irregularities such as would justify us in...
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