Krakowski v. Waskey

• Decision Date: 18 February 1914
• Citation: 145 N.W. 566,33 S.D. 335
• Parties: KRAKOWSKI v. WASKEY et al.
• Court: South Dakota Supreme Court

145 N.W. 566

33 S.D. 335

KRAKOWSKI v. WASKEY et al.

Supreme Court of South Dakota

February 18, 1914

Appeal from Circuit Court, Lake County; Joseph W. Jones, Judge.

Election contest between Paul Krakowski and George H. Waskey and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.

Joe Kirby, of Sioux Falls, for appellants.

H. H Holdridge and Chas. J. Porter, both of Madison, S. D., for respondent.

GATES J.

This is an election contest. The question is whether at the annual election held at Madison, S. D., on April 16, 1913, the proposition of granting permits for the sale of intoxicating liquors at retail was carried or was defeated. At said election there were deposited in the ballot box 826 ballots upon this question. Of these 826, there were 409 in favor of granting such permit, and 400 against. Sixteen of the ballots were so illegally and improperly marked that they could not be counted, and one was a blank. The ultimate question is this: Are those 17 ballots to be considered in determining the number of voters "voting on such proposition"?

Before discussing that question, our attention is called in the respondent's brief to a claim that the words "voting on such proposition" were not contained in the act as it passed the Legislature, viz.: Chapter 254, Laws 1913, being House Bill 280. Said act is in part as follows: "That section 2856 of the Revised Political Code of 1903, as amended by chapter 166 of the Session Laws 1903 be amended to read as follows: *** The question shall be submitted upon a separate ballot conforming to the general election laws of the state upon which ballot there shall be printed the words 'Shall intoxicating liquors be sold at retail?' Before which words shall be printed the words 'yes' and 'no,' and at the left of each of such words 'yes' and 'no' shall be placed a square or circle and any voter in favor of the sale of such liquors as aforesaid shall mark in the square or circle at the left of the word 'yes' with a cross (x), any voter opposed to such sale shall mark in the square or circle at the left of the word 'no' with a cross (x) and if a majority of the voters of such township, town or city voting on such proposition shall vote in favor of such sale of intoxicating liquors at retail, the corporate authorities thereof shall grant permission for such sale for the ensuing year in accordance with the provisions of this act." It is claimed that the italicized words "voting on such proposition" were surreptitiously inserted in the enrolled bill after it had gone through the legislative hopper. The law theretofore existing upon this subject omitted the words "voting on such proposition," and read as follows: "And if a majority of the voters of such township, town or city shall vote in favor of such sale of intoxicating liquors at retail, the corporate authorities thereof shall grant permission for such sale for the ensuing year."

Our attention is called to page 1023 of the permanent House Journal of 1913, where we find: "Mr. Ruckman moved that House Bill No. 280 be referred to a committee of one, with instructions to amend as follows: After the word 'city' in line 36 of section 1 of the printed bill insert the words 'voting on such proposition.' Mr. Patrick moved the previous question, which motion prevailed. The question being on the motion to amend as made by Mr. Ruckman, and being put, the motion was lost." It appears from the Senate Journal that the bill passed the Senate without change. It is therefore claimed that this record shows that the words "voting on such proposition" were not in the bill as passed. Our attention is also called to chapter 167, Laws 1909, which provides for a permanent journal of the two legislative bodies, and contains the following: "And when so compiled, issued, bound and published in book form as journal of the Senate and journal of the House, with indexes to the same, and with front page as above set forth, such published books shall be and constitute the original evidence to be used in all courts, and shall constitute the original and permanent record of such legislative proceedings, and it shall not hereafter be necessary to copy or record such proceedings in any other book or record whatever." It is therefore claimed that under the prior liquor election law as construed by this court, and under the present law, if the words "voting on such proposition" be omitted, the said 17 votes should be counted, and that, as 409 is not a majority of 826, the proposition did not prevail at the election.

An examination of the House Journal reveals the fact that nowhere therein is there any copy of the bill as proposed or as passed. How can we determine that the motion made by Mr. Ruckman was intended to supply the above italicized words in the act as published in the 1913 Session Laws. Let it be noticed his proposed amendment was that the words "voting on such proposition" be inserted after the word "city" in line 36 of section 1 of the printed bill. Now the word "city" occurs ten times in the bill as it appears in the Session Laws. How can we say which particular word "city" occurred in line 36 of the printed bill? We have no right under the law to refer to a printed copy of the bill, especially as none was offered in evidence, and it would have been inadmissible if offered.

The bill as it was filed in the office of the Secretary of State, and as it now appears in the Session Laws, contains the certificate by the secretary of the Senate and by the chief clerk of the House that it was the bill that was passed. That was the bill that was approved by the Governor. An inspection of it shows that it was correctly printed in the Session Laws.

In the case of Narregang v. Brown County, 14 S.D. 357, 85 N.W. 602, this court said: "It is insisted on the part of the respondents that the act of the Legislature, as enrolled and certified to by the respective officers and approved by the Governor, is conclusive upon the courts, and that it is not competent for the courts to consider any matter found in the journals tending to impeach the validity of the act. *** We shall not now stop to inquire whether the journals of the two houses, if given full credence, afford sufficient evidence that the provisions of the Constitution were not complied with, but confine ourselves to the question of whether or not the entries found in the journals can in any case be received by the court to impeach the enrolled bills as certified to by the presiding officers of the two houses and approved by the Governor. *** We are of the opinion that public policy, the better reasoning of the decisions, and the great weight of authority support the respondent's contention. The authorities sustaining the appellant's view take the position that, as the proceedings provided by the Constitution for the passage of bills are mandatory, it is the duty of the court, when any bill is claimed to have been passed in violation of any of the mandatory provisions of the Constitution, to examine the journals of the two houses, and, if it finds evidence therein that such is the fact, to declare such act null and void. In this view, it will be seen the court virtually ignores the authentication of the bill by the presiding officers, and substitutes in its place the memoranda of the clerks found in the journals, transcribed perhaps months or years after the Legislature which passed the act has adjourned. Courts that take this view seem to overlook the fact that the presiding officers of the two houses act under the solemnity of their oaths in certifying to the bills passed, and that the members of the two houses and the members of the various committees, also, are acting under the solemnity of an oath to support the Constitution of the state, and that the provisions of the Constitution providing the various steps that shall be taken in the passage of a bill are addressed mainly to the Legislature. Such a rule requires that all persons shall be presumed to know the law, not only as it is preserved in the public records of the state, but as it may be changed, modified, or annulled by the clerks' memoranda in the journals of the two houses, and neither lawyer nor laymen can be said to know what law is in force, unless he is familiar with the journals of the two houses and the legal effect of the journal entries. *** Our conclusion is, therefore, that the circuit court was concluded by the properly authenticated enrolled bill on file in the office of the Secretary of State, of which the printed laws are prima facie evidence."

Among the multitude of citations referred to in that case, we cite the following from Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93: "Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act, state and national, should at any and all times be liable to be put in issue and impeached by the journals, loose papers of the Legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable."

For the purposes of the present case we therefore are compelled to hold...