People ex rel. Hart v. McElroy

• Decision Date: 28 November 1888
• Court: Michigan Supreme Court
• Parties: PEOPLE EX REL. HART v. MCELROY ET AL.

40 N.W. 750

72 Mich. 446

PEOPLE EX REL. HART v. MCELROY ET AL.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

This was an information in the nature of quo warranto, filed by the prosecuting attorney of St. Clair county, on the relation of Frank M. Hart, against Frank McElroy, Robert Leitch, Adam Scott, Andrew Bower, Adam Friederichs, David Emig, Charles Zimmermann, Park Minor, and William Baird officers of Marine City, in said county, for the purpose of testing the validity of the act incorporating the city. From a judgment ousting the respondents they bring error.

B C. Farrand, Pros. Atty., (Avery Bros., of counsel,) for appellee.

MORSE J.

The prosecuting attorney for the county of St. Clair filed an information in the circuit court for that county to test the validity of act No. 500 of the Local Laws of 1887, purporting to incorporate the city of Marine City, in said county. The defendants are officers of said city, elected and holding public offices by virtue of said act. The act is claimed to be void because it was not introduced in the legislature until after the expiration of 50 days, and was not read but once in the lower house of the legislature, and was not read three times, as the constitution requires. The replication to the plea of the respondents sets forth that the session of the legislature of 1887 began on the 5th day of January; that on February 18th a bill, denominated "House Bill No 491," entitled "A bill detaching certain lands from the township of Ft. Gratiot, in the county of St. Clair, and organizing the same into a new township, to be known as the township of 'Huronia,"' was introduced by Representative Wellman, and referred to the committee on towns and counties. The bill was discharged from this committee, May 26th, and referred to the committee on municipal corporations, May 27th. This last committee reported a substitute for said bill, which substitute was entitled "A bill to incorporate the city of Marine City, in the county of St. Clair, and to repeal act No. 328 of Local Acts of 1885, entitled an act to reincorporate the village of Marine City, approved April 23, 1885." The substitute was at once placed on the general order, and on June 3d discharged from such order, and under a suspension of the rules passed, and ordered to take immediate effect. On the same day it was sent to the senate, and there passed, after but one reading, under a suspension of the rules, and the order for immediate effect concurred in. It was returned to the house, and on June 7th referred to the committee on engrossment and enrollment. Being duly enrolled, it received the signature of the governor, June 8, 1887. It is claimed under these circumstances, in said replication, that the bill as passed was not introduced in either house of the legislature until May 27, 1887, when it appeared as a substitute in the report of the committee on municipal corporations; that the substitute was in no way germane to the subject-matter of said house bill 491, as introduced in the first place, and that the territory embraced within the township of Fort Gratiot does not include any of the territory incorporated in Marine City by the substitute. After the filing of this replication, the respondents obtained leave to file an amended plea and answer, and did so. In this amended answer they set forth the act under which the city was organized, and averred its proper and correct passage by the legislature according to law, showing the certificate of the proper officers that it passed both houses, and was ordered to take immediate effect; also the approval of the governor, and the certificate of the secretary of state that it had become a law. It also appears upon the statute-books as one of the local acts of 1887. See Local Acts 1887, p. 665. To this amended plea and answer the prosecuting attorney replied that "act No. 500 of the Laws of 1887 is not, and never has been, of any validity or force, and is now and always has been, void and of no effect, because the same was not introduced into or brought before the said legislature until after the expiration of more than fifty days from and after the commencement of said session, and because the same was only read once in the lower house of said legislature, and was not read therein three times, as the constitution of this state requires," and set forth the same, with other matters not necessary here to be mentioned, as causes of demurrer to said plea and answer. The respondents joined in said demurrer, and prayed the quashing of said information.

Upon the hearing, the journals of the two houses were used, and it was shown therefrom the state of facts set forth in the replication, except that the bill, before it was referred to a committee, was read twice by its title, and the substitute once at length before its passage in the house, and also that the bill, in the shape of the substitute, was read twice by its title, and once at length in the senate before its passage. We held, in Attorney General v. Rice, 31 N.W. 203, that parties could not stipulate or agree, or admit by pleading, that a statute was not properly or constitutionally passed by the legislature, and that no parol proof could be used for that purpose. In that case we took judicial knowledge of the contents of the legislative journals, and found no flaw in the passage of the act then under consideration. But it is held by reputable authority, and with some show of reason, that courts cannot look beyond the enrolled act to ascertain whether the constitution has been complied with in its passage. If the act, as in this case, is authenticated by the signature of the presiding officers of both houses, approved by the governor, and certified in the published laws by the secretary of state, it is declared by the courts of last resort in many of the states that the court will not go behind these certificates, and search further to ascertain whether such facts existed as gave these officers constitutional warrant for their action. State v. Swift, 10 Nev. 176; Evans v. Browne, 30 Ind. 514; Sherman v. Story, 30 Cal. 256; Bender v. State, 53 Ind. 254; Pangborn v. Young, 32 N. J. Law, 41; Duncombe v. Prindle, 12 Iowa, 1; Eld v. Gorham, 20 Conn. 8; Railroad Co. v. Governor, 23 Mo 353; People v. Devlin, 33 N.Y. 269. The courts of some of the states have taken cognizance of the journals, and looked into them, for the purpose of determining whether the constitutional methods have been followed in the passage of laws. But it is held, in all the cases, that the presumption is always strong that the legislature has not violated the constitution in the passage of an act, duly authenticated, as stated above; and that the proof furnished by the journals must be clear, in order to overcome this presumption. State v. Peterson, (Minn.) 36 N.W. 443; Miller v. State, 3 Ohio St. 475; Williams v. State, 6 Lea, 549; Supervisors v. People, 25 Ill. 183; Larrison v. Railroad Co., 77 Ill. 11; Worthen v. Badgett, 32 Ark. 496. It would seem that in this state the practice of this court has been to look into the legislative journals, and to go behind the authentication of the act, to ascertain...