Lafferty v. Huffman

• Court: Court of Appeals of Kentucky
• Writing for the Court: HAZELRIGG, J.
• Citation: 35 S.W. 123,99 Ky. 80
• Decision Date: 01 April 1896
• Parties: LAFFERTY et al. v. HUFFMAN et al.

35 S.W. 123

99 Ky. 80

LAFFERTY et al.
v.
HUFFMAN et al.

Court of Appeals of Kentucky.

April 1, 1896

Appeal from circuit court, Harrison county.

"To be officially reported."

Suit by L. D. Huffman and others against W. T. Lafferty and others to enjoin defendants from issuing liquor licenses. From the judgment rendered, defendants appeal. Reversed.

J. Q. Ward, for appellants.

Blanton & Berry, for appellees.

HAZELRIGG, J.

Pursuant to the provisions of what is known as the "local option law" of August 6, 1892, a vote in the town of Berry, in Harrison county, was taken on January 31, 1894, and resulted in favor of the sale of spirituous, vinous, and malt liquors. When the county judge was about to direct the certificate of the election officers to be entered of record, and the trustees of the town were accordingly about to grant licenses, the appellees, certain citizens of the town, instituted this suit to prevent such action on the part of these officials. The chief point relied on in the petition for injunction is that the law under which the election was held was not enacted by the general assembly in the manner required by the constitution; the allegation on that behalf being, in effect, that, on the final passage in the senate of the bill as amended in the other house, the vote was not taken by yeas and nays, and entered in the journal, as required by section 46 of the constitution. A consideration of other points relied on will be deferred until after disposition of the principal question.

It is conceded that the bill, properly enrolled, was signed by the presiding officer of each of the two houses, and signed and approved by the governor. The question is, can a law thus promulgated be impeached by reference to the journals of either house? [35 S.W. 124] Different answers have been given to this inquiry in various courts of last resort in this country, but in this state it remains substantially unanswered; for, whatever may be said of the argument of the question in the World's Fair Case (Norman v. Board, 93 Ky. 537, 20 S.W. 901), we are not to take the case as decisive of that which it expressly disclaims to decide. After a discussion tending, it may be admitted, to the conclusion that such an impeachment might be had, the majority opinion yet determines it to be unnecessary to decide the question, and the plaintiffs, seeking to recover under a law sought to be so impeached, were there denied relief on grounds not pertinent to this inquiry. It is to be observed, at the outset, that this is not a case where the enrolled bill is supposed to be in any wise different from the bill actually adopted by the legislative body. It is not a dispute over contents. Such a question is presented in many of the cases. Thus, in Field v. Clark (1892) 143 U.S. 649, 12 S.Ct. 495, the allegation was that a section of the bill as it actually passed was not in the enrolled bill as authenticated by the signatures of the presiding officers and deposited with the secretary of state. And so in State v. Town Council of Chester (1893) 39 S.C. 307, 17 S.E. 752, the contention was that the original bill which was sent from the senate to the other house was altered by the speaker of the house of representatives at the time or after it passed that house, and amended as he saw fit, when the journals of the house showed no such alterations. These cases, and we note them here as samples of many others to the same effect, hold that the official attestation of the presiding officers of the legislative body and of the executive are conclusive that an act so authenticated is the very act passed by the body, and leave undetermined, in express terms at least, the further question whether an act may be impeached if the journals fail to show that which the constitution expressly requires them to show, such as that the bill was passed by a yea and nay vote. An examination of these cases, however, shows that the argument against the use of the journals to show that the bill was not the same as that actually adopted is quite conclusive against their use to show the absence of the steps contemplated by the organic law. And we may observe, in this connection, it would be strange if it were otherwise. For why should the journals, if deemed capable of shedding light on any question touching the bill, be rejected as evidence affecting the substance,-the very bill itself,-and held competent to affect the mere steps in the process of passing it? Indeed, does there not seem to be stronger reason for seizing hold of the journals to expose the fraud of promulgating as valid a law which had in fact never passed at all, than for using them to undermine a law because of flaws in the steps taken during its passage? Manifestly, therefore, the case of Field v. Clark and the numerous decisions of the state courts which have gone to the extent-and no further, because the particular case did not demand it-of holding the journals incompetent to declare the enrolled bill not to be the very one adopted by the legislative body, must be classed, with a few exceptions, along with the authorities holding that the verity of the enrolled bill, when duly certified and authenticated by the presiding officers, is absolute and conclusive. So construing these cases, it becomes palpable that the overwhelming weight of authority is against the impeachment of the enrolled bill by the journals, whether in a matter affecting the contents of the bill, or merely the regularity of the steps taken in its passage.

When we look to the argument, much may be said on either side of the question, and we shall content ourselves with suggesting only a few of the controlling reasons for our opinion. In the first place, no court can begin its scrutiny of the manner in which the legislative department may have performed the details of its work, as shown by its daily journals, without a sense of assumed superiority, or without seeming to arrogate to itself a supervisory power wholly inconsistent with the fundamental truth that the departments are equal and independent in their respective spheres. Surely must the passing of bills, and all the accompanying minutae, be exclusively legislative processes. Courts do not make laws, or pass bills; and the various steps required by the organic law to be taken seem, in the nature of things, to call for the exercise of legislative, and not judicial, functions. The judiciary, at every step of its investigation into the journals of a legislative body, must find itself confronted with the embarrassing question, how is it that the courts have come to be the exclusive guardians of those mandatory provisions of the constitution which direct the legislature only how to transact its business? The answer must be more embarrassing, because such a thing cannot be, except on the assumption that the courts must regard themselves as alone competent for such oversight. It is to be admitted that, unless the constitutional mandate is followed, "no bill can become a law." The constitution so says. But the question remains, what shall be taken by the courts as the basis of judicial knowledge? Must they look to the journals, and accept as conclusive the hasty memoranda of the clerk or his assistant, or shall they assume that the legislature obeyed the constitution, and accept as conclusive the certifications of its presiding officers? That the act or successive acts of some agency, somewhere or somehow, must be held conclusive, is entirely evident, unless we open the doors to all competent proof, including that of the member on the floor,-an absurdity not to be thought of. The result is we must accept as conclusive either the entries of the clerk in [35 S.W. 125] the journals, or the more deliberate acts of the presiding officers. It must be conceded, on all sides, that at least some of the directions of the constitution, prescribing steps to be taken in the passage of a bill, are...