Kelley v. Marron

• Decision Date: 17 November 1915
• Docket Number: No. 1864.,1864.
• Parties: KELLEYv.MARRON, STATE TREASURER.
• Court: New Mexico Supreme Court

21 N.M. 239

153 P. 262

KELLEY

v.MARRON, STATE TREASURER.

No. 1864.

Supreme Court of New Mexico.

Nov. 17, 1915.

Syllabus by the Court.

The enrolled bill which has been signed by the Speaker and President of the respective houses, as required by section 20, of article 4 of the Constitution and approved by the Governor and deposited with the secretary of state, as required by Constitution, § 22, art. 4, is conclusive upon the courts, as to the regularity of its enactment, since the signatures of the officers are a solemn declaration by the officers of a co-ordinate department that the bill, as enrolled, was enacted and approved.

Each of the three departments of government is equal and co-ordinate and responsible only to the people, and the courts are not warranted in assuming that their department is the only one to which it is safe to intrust the enforcement of the provisions of the Constitution regulating the enactment of statutes.

The courts will not look beyond the properly authenticated legislative act, on file in the office of the secretary of state, certified and signed as required by the Constitution, to the journal of either house for the purpose of determining whether such act was read in full therein, after it had been enrolled and engrossed, as required by section 20, art. 4, of the Constitution.

The case of Earnest v. Sargent, 150 Pac. 1018, wherein the court held that it would look to the journal to ascertain whether an act had been passed over the Governor's veto, distinguished from the present case.

Appeal from District Court, Santa Fé County; M. C. Mechem, Judge.

Action by Harry H. Kelley against Owen N. Marron, State Treasurer. From judgment for defendant, plaintiff appeals. Affirmed.

An enrolled bill, signed as required by Const. art. 4, § 20, and approved as required by section 22, is conclusive on the courts as to the regularity of its enactment.

Vaught & Watson, of Deming, for appellant.

Frank W. Clancy, Atty. Gen., for appellee.

ROBERTS, C. J.

The second legislative assembly of the state of New Mexico, by chapter 32, Laws 1915, provided for the creation of an armory board of control, and for the construction of an armory building in the village of Carlsbad, and authorized an issue of bonds to pay for such building, and, by chapter 46, Laws 1915, like provisions were made for an armory building in the village of Deming, in said state. The state treasurer, as required by such acts, was proceeding to advertise and sell such bonds when the present action was instituted in the court below to enjoin him from so doing, by the appellant, a taxpayer of the state. To the complaint, which set up the invalidity of the acts, a demurrer was sustained. The right of the treasurer to proceed was challenged on the ground that the said pretended legislative acts were not legally enacted, in that the journal of the House of Representatives does not show a compliance with section 20, art. 4, of the Constitution, the first sentence only of which is material, and reads as follows:

“Immediately after the passage of any bill or resolution, it shall be enrolled and engrossed, and read publicly in full in each house, and thereupon shall be signed by the presiding officers of each house in open session, and the fact of such reading and signing shall be entered on the journal.”

The acts in question were signed by the respective officers of each house, and the fact of such signing appears upon the respective journals. It does not appear from such journal, however, that the bills were read in full in each house after being enrolled and engrossed, as required by the above constitutional provision. After being signed by the respective officers of each house, the bills were presented to the Governor, by him approved, and signed and deposited in the office of the secretary of state.

It is contended by the Attorney General that the court cannot look behind the properly authenticated bill in the office of the secretary of state to the journal, to see whether the constitutional mandates have been complied with by the Legislature in the enactment of the laws, but that the laws, having been authenticated and promulgated by the legislative department to the public in the manner authorized by the Constitution, this is conclusive evidence of their proper passage by the Legislature.

At the outset of the discussion of the question, it is proper to state that there exists an irreconcilable conflict in the authorities upon the question. The cases discussing the question may be generally classified under four heads: First. Those holding that the enrolled act, duly signed by the presiding officers of the two branches of the Legislature and approved by the Governor and lodged with the secretary of state, is conclusive, and cannot be shown to be invalid by reference to the journals. Second. Those which hold that the enrolled act, thus signed, approved, and deposited with the secretary of state, is not conclusive, but that the legislative journals can be examined to see whether the act has been constitutionally passed. These decisions consider the journals as in the nature of minutes, or the ultimate documentary evidence of what was done by the Legislature, and hold, not only that an affirmative entry upon the journal, showing a violation of the constitutional methods of enacting laws, will invalidate an act, but also that, the journal being the complete evidence of legislative action, silence is equivalent to negation, and the failure of the journal to show that a constitutional provision was complied with is equivalent to a statement that it was not complied with, and hence is equally fatal to the act as a direct statement of noncompliance would be. Third. Those which hold that such enrolled act is not conclusive, and that the journals may be examined for certain purposes, but that a failure of the journals to show a full compliance with the constitutional requirements in regard to the modes of passage of the acts will not cause the act to be held unconstitutional, and that this will only be done where the entries on the journal affirmatively show that the act has not been constitutionally passed. Fourth. Decisions which do not rest upon general rules or principles, but set up as a basis the peculiar or special language of the Constitution under consideration. De Loach v. Newton, 134 Ga. 739, 68 S. E. 708, 20 Ann. Cas. 342. Included in the last class are those cases which hold that a failure to show on the journal compliance with a constitutional requirement does not invalidate the act, unless the Constitution directs that such compliance must be entered on the journal.

As to whether the courts will, or will not, look behind the properly authenticated act to the journal for the purpose of ascertaining that all the constitutional provisions relative to its enactment have been complied with, it may be stated that the courts are approximately equally divided; but public policy, reason, and logic and the modern trend of authority all support the first position. The courts which hold otherwise lose sight of the purpose and form of our government, and the independence which exists between the various departments thereof. Our Constitution, and in fact the Constitution of the United States and each of the states, have provided for three great branches of government, all of equal dignity and power within their proper spheres, and each independent of the other. Certain duties of government are confided to each of these departments, which it is required and authorized to exercise, within constitutional limitations, without any interference from either of the others. Upon the legislative branch of government is cast the duty of enacting such laws as are deemed calculated to promote the prosperity and happiness of the people and provide for the general welfare. The judicial department is created and endowed with the power to construe and interpret the laws and administer justice, between state and citizen, citizen and citizen, or citizen and stranger. It has no power to interfere, nor is it concerned, with the enactment of laws by the legislative department. It is true that this department determines whether an act of the Legislature conflicts with the fundamental law of the state, but this is a matter entirely foreign to the enactment of the law. The executive executes the laws, and performs certain duties which the Constitution and law impose upon it, and acts independently of either of the other departments. The officers of each department, except in certain instances, are answerable only to the people. The Constitution has conferred upon each certain broad powers, and has prescribed the manner in which those powers shall be exercised. The mandates thus given must be held to be directed only to the officers exercising the powers conferred, upon whom rests the responsibility of seeing that their acts comply with such requirements, unless some one of the departments of government has been created with superior powers and prerogatives and given a supervisory control over the other supposedly equal and independent departments of government.

Section 1, art. 3, of the Constitution expressly prohibits the exercise by one of the departments of government of powers belonging to another department, “except as in this Constitution expressly directed or permitted,” and no express grant of power is given to the judiciary to supervise the acts and conduct of the Legislature in the passage of a legislative act.

In our Constitution the judicial department is given certain broad powers, and the jurisdiction of the various courts is defined. In certain contingencies the Supreme Court is authorized to call in a district judge to sit in place of one of the regular judges of the court. No one would contend that either of the other departments of government would have the right to question a judgment of the court, upon the ground that...