In re Roberts

• Decision Date: 01 April 1881
• Citation: 5 Colo. 525
• Parties: IN RE T. H. ROBERTS.
• Court: Colorado Supreme Court

5 Colo. 525

IN RE T. H. ROBERTS.

Supreme Court of Colorado

April, 1881

PETITION for habeas corpus.

Mr. C S. THOMAS, for petitioner.

Mr CLINTON REED and Mr. J. W. JENKINS, for respondent.

STONE J.

The petitioner Roberts avers in substance, that he is held in custody by the sheriff of Lake county, by virtue of a warrant of commitment issued by the judge of the district court of the said county of Lake, upon a criminal charge; that he is unlawfully deprived of his liberty, for the reason, as alleged, that the judge of said court was without lawful authority to act in the premises, in that the act of the General Assembly increasing the number of judicial districts in the State, and establishing the court aforesaid, entitled 'An act to establish judicial districts in the State of Colorado, and to provide for the holding of district courts therein, and the manner of commencing and adjourning the same, and return of process and providing for the transfer of causes therein, and for continuing causes in case of adjournment, and to repeal all other acts in relation thereto,' approved March 5, 1881 was not passed in accordance with certain requirements of the constitution, and hence, that said act is invalid and without force to confer any lawful authority whatever upon the said judge to commit the petitioner.

The specific grounds alleged against the validity of the act in question are:

First. That the bill for said act having originated in the house, and having passed that body, was amended in several respects by the senate; that the bill, together with the amendments, was returned to the house for its concurrence, and that such of said amendments as were concurred in, were not adopted by the house in conformity with the requirements of section 23, article V of the Constitution, in that a vote was not taken by the ayes and noes of the members voting thereon, nor were the names of those voting recorded in the journals of the house, 'except as appears' by the journals, etc., the point of objection being that the journal records are so defective that they fail to disclose the fact with required certainty.

Second. That the fact of the signing of said bill by the speaker, in the presence of the house, after its final passage, was not entered upon the journal of the house, as required by section 26 of article V of the Constitution.

The provisions of the constitution referred to are as follows:

Art. V, sec, 23. 'No amendment to any bill by one house shall be concurred in by the other, nor shall the report of any committee of conference be adopted in either house, except by a vote of a majority of the members elected thereto, taken by the ayes, noes, and the names of those voting recorded upon the journal thereof.'

Sec. 26. 'The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the General Assembly, after their titles shall have been publicly read, immediately before signing; and the fact of signing shall be entered on the journal.'

Several questions are involved in the consideration of this case.

A question of fact is: Was the act in question passed in compliance with the constitutional provisions above quoted?

The questions of law are:

First. May the court go back of the enrolled act, duly authenticated by the signatures of the presiding officers of the two houses and the governor, and filed with the Secretary of State, and examine the legislative journals, as sources of information touching the regularity of its enactment, for the purpose of determining its validity as a statute?

Second. If the journal may be looked into, must the regularity of the enactment appear therefrom affirmatively, or may it be to any extent presumed?

Third. In case of non-compliance with these constitutional requirements or directions, is the act valid? And hence,

Fourth. Are these constitutional provisions mandatory, or directory merely?

The first of the legal questions propounded, is a much mooted one, and of which it may be said, there is highly respectable authority on both sides. Although considering the importance of the case, in view of the public interests involved, we have made a laborious research of all the accessible authorities, aided by the briefs of learned counsel in the case, I do not deem it necessary to enter upon a lengthy discussion of the question, or to review the authorities covering it, but will merely cite the leading cases upon both sides, with such brief statement as will serve to present a sort of balance sheet of the authorities.

The English doctrine is that it is not competent to go beyond the parliament roll, which is itself considered a record of as great dignity as a record of court, importing verity, and 'the enrolled act is to be determined by itself, whether it be a statute or not.' In this country the question, in some form, has been passed upon by the highest courts of twenty-two States, and in over fifty cases.

As they now stand, nine States may be classed as adhering to the English doctrine, to wit: Connecticut, New York, New Jersey, Mississippi, Louisiana, Indiana, Iowa, California and Nevada. The leading cases in support of the doctrine in those states are: Eld v. Gorham, 20 Conn. 8; People v. Devlin, 33 N.Y. 269; Pangborn v. Young, 32 N. J. 29; Green v. Weller, 32 Miss. 650; La. State Lottery v. Richoux, 23 La. Ann. 743 (8 Am. Reports 602); Evans v. Brown, 30 Ind. 514; Duncombe v. Prindle, 12 Iowa, 1; Sherman v. Story, 30 Cal. 258; State v. Swift, 10 Nevada, 176; (21 Am. Rep. 721).

The States whose courts hold to the contrary, and to what may be called the American doctrine, are the thirteen following: New Hampshire, Vermont, Maryland, West Virginia, South Carolina, Alabama, Arkansas, Pennsylvania, Ohio, Illinois, Michigan, Minnesota and Missouri. The leading cases announcing such decisions, are: Opinion of the Judges, 52 N.H. 622; In re Wellman, 20 Vermont, 656; Legg et al. v. The Mayor, etc., 42 Md. 203; Osbourne et al. v. Staley et al. 5 W. Va. 85; State v. Platt, 2 S. C. 150 (16 Am. Rep. 647); Moody v. State, 48 Ala. 115 (17 Am. Rep. 28); Worthen v. Badgett, 32 Ark. 496; Southwark Bank v. Com'th, 26 Pa. St. 446; Fordyce v. Godman, 20 O. St. 1; People v. Starne, 35 Ill. 121; People v. Mahaney, 13 Mich. 481; Supervisors v. Keenan, 2 Minn. 331; State v. Mead, 71 Mo. 266.

In addition to these last cited cases, and in support of the same general doctrine, is the case of Gardner v. The Collector, etc., in the Supreme Court of the United States, 6 Wall. 499, and also the following text writers; Cooley Con. Lim., 135-9; Sedgwick Stat. and Const. Law (2d Ed.), 55; Smith's Con. Lim. Secs. 833-8; Cushing's Legislative Assemblies, Sec. 2,211 et seq.; 1 Greenleaf Ev. Sec. 491.

This last author lays down the rule that the journals of either house are the proper evidence of the action of that house upon all matters before it. The Vermont and Pennsylvania cases cited above go no further than this upon the questions considered, and even the New York case of the People v. Devlin, supra, admits the correctness of this rule. Indeed it may be observed that the English rule allows the journals of parliament to be admissible evidence for all purposes for which they are there considered to be kept, though not for the purpose of impeaching an enrolled act. And it is to be remarked that the circumstance of the absence of a written constitution in England requiring legislative journals to be kept, none whatever being kept in the House of Commons until the time of Edward VI, while in most of the State of the Union the constitutions require journals of the proceedings, and point out what they shall contain, will account for much of the diversity of OPINIONs of this country.

It is also notable, that owing to changes made in the fundamental law by the adoption of new constitutions, the courts of several States have overruled themselves upon this question. The decision in 33 N.Y. supra, is in conflict with what seems to have been the ruling in the earlier cases. The cases in 30 Ind. and 30 Cal. overruled the early decisions in those States. On the other hand, while, until recently, the case of the Pac. R. R. v. The Gov. 23 Mo. 353, has been regarded as one of the leading cases in support of the English doctrine, a change in the constitution of that State in 1865, necessitated the court, in the case of State v. Mead, supra (1879), to announce the contrary doctrine. So also the case of Fouke v. Fleming, 13 Md. 392, is overruled by the cases Berry v. Drum, Pt. R. R. 41 Md. 440, and that of Legg v. Mayor, 42 Md. cited, supra.

In view of these authorities, and of the precise language and reasonable import of our own constitution we must hold:

First. That the enrolled act of the General Assembly, duly signed and authenticated by the proper officers, and lodged with the proper custodian, is evidence prima facie of what the law is, and of the regularity of its constitutional enactment. But this evidence is not conclusive. To so hold would leave the constitutional requirements touching the mode of passing bills, binding only in conscience upon members of the legislature. The statute making the printed copy of the laws evidence, does not make it conclusive.

Second. The legislative journals are required by the constitution and for an obvious purpose certain things are required to be entered therein. They possess the character of public records, and as such are admissible as evidence of the proceedings of legislative bodies, and this independently of statutory provisions. Their value as evidence, however, is a question for the courts, and will be affected by the internal evidence which such records furnish as to the...