Narregang v. Brown County

• Decision Date: 02 April 1901
• Citation: 85 N.W. 602,14 S.D. 357
• Parties: NARREGANG v. BROWN COUNTY et al.
• Court: South Dakota Supreme Court

85 N.W. 602

14 S.D. 357

NARREGANG v. BROWN COUNTY et al.

Supreme Court of South Dakota

April 2, 1901

Appeal from circuit court, Brown county; A. W. Campbell, Judge.

Action by Spencer W. Narregang against Brown county and John A Fylpaa, as county treasurer, and another. From a judgment in favor of defendants, and from an order denying a new trial plaintiff appeals. Affirmed.

S. H Cranmer, for appellant. John H. Perry, for respondents.

CORSON J.

This action was brought to quiet title to certain lots in the city of Aberdeen, and to certain quarter sections of land in Brown county, claimed by the plaintiff. The defendants in their answer admitted that the plaintiff was the owner of the property described in the complaint, and that the defendant Brown county claimed an interest in or lien upon said property, and averred the same had been assessed for taxes for the years 1892 to 1897, inclusive, and that, said taxes not being paid, the property was sold, as provided by law, to satisfy the taxes levied thereon, and that the property was bid in by said Brown county, and that it holds the tax certificates issued thereon. The court found in favor of the lien of the defendants to all the property described in the complaint, excepting two quarter sections, and from the judgment entered in said action the plaintiff appeals.

The first contention on the part of the appellant is that the act constituting chapter 14 of the Laws of 1891, entitled "An act prescribing the mode of making assessments and the levy and collection of taxes and for other purposes relative thereto," approved March 9, 1891, is unconstitutional and void, for the reason that certain mandatory provisions of the state constitution relating to the passage of bills by the legislature were not complied with, as shown by the entries in the journals of the two houses of the legislature. 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. As will be seen, the question is a very important one, affecting as it does the proceedings for the collection of taxes in this state for a number of years, and affecting titles to property acquired through tax deeds under the act. It is also important, affecting, as it may, all acts passed by the legislature. 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, or which have become laws without the governor's approval, under the provisions of the constitution.

There are two lines of decisions upon this question; the first holding, with the appellant, that a court may always go behind the enrolled bill and examine the journals of the two houses, and, if it finds that the mandatory provisions of the constitution have not been complied with, it may declare the law unconstitutional and void. The second class of decisions hold that the enrolled bill, certified to by the presiding officers, approved by the governor, and filed with the secretary of state, is conclusive upon the courts, and that it is not competent for them to go behind such record, or allow it to be impeached by entries in the journals. We are of the opinion that public policy, the better reasoning of the decisions, and the great weight of authority support the respondents' 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 layman 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. The courts taking the respondents' view hold that when an act of the legislature is duly authenticated by the presiding officers of the two houses, approved by the governor, and filed with the secretary of state, it should be held, like a judgment of a court of general jurisdiction, conclusive, and not subject to impeachment by any matter contained in the journals; that, while the courts may declare unconstitutional and void a law which upon its face conflicts with the constitution, it would be against public policy and an invasion of the rights of one of the co-ordinate branches of government to permit the law as contained in the enrolled bill to be questioned in the courts. This question, in the quite recent case of Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294, decided by the supreme court of the United States, was given very full consideration. It seems from the opinion in that case that the question had never before been directly decided by that court. It was there held: "When a duly-enrolled bill, signed by the speaker of the house of representatives, the president of the senate, and the president of the United States, is placed in the custody of the secretary of state, its authentication as a law of the United States is complete; and no reference can be had to the journal of either house, to the reports of committees, or to any other documents printed by authority of congress, for the purpose of showing that a section of the bill as it finally passed does not appear in the act as thus authenticated." In the course of the opinion the court says: "The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill thus attested has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill thus attested receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable. *** The evils that may result from the recognition of the principle that an enrolled act in the custody of the secretary of state, attested by the signatures of the...