People ex rel. Atty. Gen. v. Burch

• Decision Date: 23 January 1891
• Citation: People ex rel. Atty. Gen. v. Burch, 47 N.W. 765, 84 Mich. 408 (Mich. 1891)
• Court: Michigan Supreme Court
• Parties: PEOPLE ex rel. ATTORNEY GENERAL v. BURCH.

47 N.W. 765

84 Mich. 408

PEOPLE ex rel. ATTORNEY GENERAL v. BURCH.

Supreme Court of Michigan

January 23, 1891

Application for quo warranto.

Taggart, Wolcott & Ganson and Butterfield & Keeney, for respondent. Norris &amp Norris and Allen C. Adsit, for relator.

MORSE J.

This is a proceeding in the nature of a quo warranto, to test the right of the respondent to hold the office of a judge of the circuit court for the county of Kent. At the general election in the spring of 1889, an amendment to article 6, � 6, of the constitution was adopted, providing that the legislature might provide for the election of more than one circuit judge in the county of Kent. The amendment also provided that it should take effect from the time of its adoption. The legislature, then being in session, thereupon passed an act creating the office of an additional circuit judge for the county of Kent, and declared such office vacant from the time the act took effect, and provided that the vacancy thus declared should be filled by appointment by the governor, "the person so appointed to hold his office provisionally, from the time of his appointment, until the general election for township officers in the spring of 1893, or until his successor shall be elected; and the term for which said judge shall be appointed shall expire December 31, 1893." Act No. 97, pp. 102 103, Pub. Acts 1889. This act was given immediate effect, and approved by the governor May 17, 1889. The governor appointed the respondent as such circuit judge June 1, 1889, and he has since exercised the duties of such office.

The first contention of the relator is that the act was never properly and constitutionally passed by the legislature. The history of the bill, as far as this question is concerned and necessary to be shown in its consideration, is as follows The bill was introduced in the senate February 16, 1889, and referred to the committee on judiciary. May 2, 1889, the said committee reported the bill with amendments, and recommended its passage. The rules were suspended, and the bill passed and ordered to take immediate effect. It then went to the house, and was there amended, passed, and given immediate effect. May 3, 1889, the senate, on its return from the house, concurred in the house amendments, and referred the bill to the committee on engrossment and enrollment. 1 Senate Journal, p. 797. May 9, 1889, the house requested the senate to return the bill. The senate thereupon ordered the committee to return it to the senate, which having been done, the face of the journal as then made up shows the following proceedings: "Mr. Wesselius moved to reconsider the vote by which the senate passed the bill, which motion prevailed. The question being on the passage of the bill, on motion of Mr. Wesselius, the bill was ordered to be returned to the house." Id. p. 811. At the close of the senate journals, on the page before the certificate of the secretary, which bears date July 3, 1889, is a page headed "Errata in the Record of Bills. (Minor errors not noted; only such as affect the record of bills in consideration by the senate. The corrections are all made upon the authority of the records kept by the bill clerk, under the supervision of the secretary.) * * * On page 811, lines ten and eleven, the vote reconsidered was not the passage of the bill, but the vote by which the senate concurred in the house amendments to the bill on page 797." After the proceedings taken as shown on page 811 of the senate journal, the bill was returned to the house, and there further amended, returned again to the senate, the house amendments there concurred in, the bill engrossed and enrolled, signed by the proper officers of both houses, and approved by the governor.

The defect claimed in the passage of the bill is that the face of the senate journal shows, on page 811, that the vote by which the senate passed the bill was reconsidered, leaving it standing before that body as if it had never been passed; that in that shape it was returned to the house, and, when it came back to the senate, the house amendments were concurred in, but the bill itself was not passed by the senate, and therefore failed to become a law; that the secretary had no authority to make the correction found in the " errata." It does not affirmatively appear at what time the secretary made this correction of the record, but it is to be presumed, from the place where the errata is found that he made it on or before the date of his certificate, July 3, 1889, as the certificate follows the correction. The legislature adjourned sine die upon that date, and, as every intendment is to be taken in favor of the correctness of legislative action, it must also be presumed that the correction was made before the adjournment of the senate. If it was done, as we must presume that it was, before the final adjournment of the legislature, we must also presume that it was authorized by the senate, and that the true journal entry of the proceedings is as corrected by the " errata." It also appears from the journals of the senate that, on the first day of the session of the legislature, the following resolution was adopted: "Resolved that the reading of the daily journal be dispensed with for this session, and that the secretary be authorized to make all necessary correction in the journal from day to day." While this may not have been the best practice, in order to secure absolute verity of the record, there is no prohibition of such practice to be found in the constitution, the only provision being that "each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy." Article 4, � 10. Under this resolution, the secretary of the senate was authorized to make this correction at any time before the final adjournment. We have repeatedly held in this state that it was competent for the courts to go behind the authenticated act, and to examine the journals of the legislature, to ascertain whether or not the same was constitutionally passed, but where this is permitted the whole current of authority is one way as to the presumption being in favor of the validity of the act. This presumption in favor of the legality of legislative action in the passage of a bill is so strong that it has always been held that the evidence found in the journals must be of an affirmative character, and so clear and satisfactory as to be conclusive, in order to overthrow the prima facie correctness of legislative action, which attaches to every act which has been duly authenticated by the proper authorities. Hart v. McElroy, 72 Mich. 450, 40 N.W. 750, and cases there cited. And the record as it appears upon the face of the journals, taken as a whole, without the errata to one at all acquainted with legislative practice, shows clearly enough that the entry upon page 811 is a mistake, and that the " errata" is correct. The proper motion to have been made at that stage of the proceedings was, as appears in the errata, to reconsider the vote by which the senate had concurred in the house amendments. Then it could have been properly sent back to the house as it was, and all the subsequent proceedings, as shown by the journal, would have been regular and usual; but if the vote on the passage of the bill had been reconsidered, being a senate bill originally, it could not have properly been returned to the house. There is no doubt in our minds, from an examination of the whole record, that the correction by the secretary of the senate sets out the action of the senate as it was taken at the time, and that the mistake is upon the face of the journals. It follows that the bill was properly passed.

2. It is further contended that the respondent was appointed before the act took effect. It is shown by the journals that the senate when concurring in the house amendments made no separate order that the bill as amended should take immediate effect. This was not necessary. When the bill was originally passed by the senate, it was ordered to take immediate effect. The bill as amended by the house was by that body ordered also to take immediate effect. This being originally a senate bill, it was not necessary, after it had been once given immediate effect, and the action of the senate thereafter was confined to the concurrence in the house amendments which had by that branch of the legislature been ordered to take immediate effect, for the senate again to order by a separate vote that the bill as amended should take immediate effect. Concurrence in the action of the house as to the amendments must be considered as a concurrence in the order that such amendments take immediate effect. And this has been, we think, the uniform practice of the...