In re Opinion of Justices

• Decision Date: 05 February 1858
• Citation: 35 N.H. 579
• Parties: In re Opinion of Justices.
• Court: New Hampshire Supreme Court

35 N.H. 579

In re Opinion of Justices.

Supreme Judicial Court of New Hampshire.

February 5, 1858

THE ACT PRESCRIBING THE DUTIES OF BANK CASHIERS DECLARED NOT A LAW.

To His Excellency WILLIAM HAILE,

Governor of New-Hampshire, and the Honorable Council:

The undersigned, Justices of the Supreme Judicial Court, have considered the question proposed in your communication of January 7, 1858. That question we understand to be this Whether an act entitled "An act in amendment of an act prescribing the duties of Cashiers of Banks," purporting to have been passed at the last session of the Legislature or any part thereof, is legally valid and binding as a law and statute of the State of New-Hampshire?

That act is in its character a public statute, and of the public statutes of the State, courts in this State are bound to take notice officially. The act is found lodged in the office of the Secretary of the State, with other public acts passed at the same session. It is signed by the Speaker of the House of Representatives and the President of the Senate, and has upon it the approval of the Governor, attested by his signature. It has been published by authority as one of the public statutes enacted at that session. This, we have no doubt must be regarded as primá facie evidence that it received the assent of the two branches of the Legislature and the Governor, in the manner required by the Constitution to make it a valid law and statute of the State. Is this evidence to be considered as conclusive, and incapable of contradiction? Or may we go beyond it, and examine the proceedings of the Legislature, to ascertain whether the two Houses in fact concurred in the passage of the act, as is required by the Constitution?

By the Constitution, every act to become a law must have the assent of the Senate and of the House of Representatives, but the Constitution does not prescribe the form in which this assent shall be given. Each House has general authority, under the Constitution, to determine its own rules of proceeding Nor does the Constitution in terms provide for the manner in which an act of the Legislature shall be proved and authenticated as a law and public statute of the State. It provides, however, "that the journals of the proceedings and al public acts of both Houses of the Legislature shall be printed and published immediately after every adjournment or prorogation," and by necessary implication requires each House to keep a journal of its proceedings. The journals thus required by the Constitution to be kept by each House must, we think, have the character of records intended to establish the facts recorded, and fall within the provision of the Constitution, which requires "the records of the State" to be kept in the office of the Secretary of State. The statute providing that the journals shall be deposited in that office within a certain limited time, is, we think, merely in affirmance of the constitutional provision, and designed to enforce a prompt and punctual compliance with it.

We are of the opinion that the journals which the Constitution thus requires to be kept by the Senate and House of Representatives, to be lodged and preserved in the general public depository of the State records, and to be published annually in the same manner as the public laws, were intended to furnish the courts and the public with the means of ascertaining what was actually done in and by each branch of the Legislature; not merely for the purpose of enabling the people to judge of the manner in which their public servants have conducted themselves in their office of legislators, but also for the purpose of determining whether the proceedings of the Legislature have been in conformity with the provisions of the Constitution; that these journals, under our Constitution, are not to be regarded as "mere remembrances of proceedings," kept by each House for its own use and convenience, which "expire" when the act is passed or the business is disposed of to which they relate. But we think they are to be treated as authentic records of the proceedings, and that we may resort to them in this case to ascertain whether the two Houses in fact concurred in the passage of the before mentioned act; that if it appears by the journals that they did not, the primà facie evidence derived from an examination of the act itself will be overcome.

In this case the act in question is recent, and no presumption that the two Houses concurred in it can arise from general recognition and acquiescence.

Upon inspecting the journal of the House, it appears that an act entitled "An act in a...