People ex rel. Manville v. Leddy

• Decision Date: 06 May 1912
• Citation: 53 Colo. 109,123 P. 824
• Court: Colorado Supreme Court
• Parties: PEOPLE ex rel. MANVILLE et al., Board of County Com'rs, v. LEDDY, State Auditor.

123 P. 824

53 Colo. 109

PEOPLE ex rel. MANVILLE et al., Board of County Com'rs, v. LEDDY, State Auditor.

Supreme Court of Colorado, En Banc

May 6, 1912

Error to District Court, City and County of Denver; Carlton M Bliss, Judge.

Mandamus by the People of the State of Colorado, on the relation of Harry B. Manville and others, as the Board of County Commissioners of Prowers County, Colorado, against Michael A Leddy, as Auditor of the State of Colorado. Writ denied, and petitioners bring error. Affirmed.

B. M. Malone, of Denver, W. A. Merrill, of Lamar Fred A. Sabin, of La Junta, and F. L. Collom, of Idaho Springs, for plaintiff in error.

Benjamin Griffith, Atty. Gen., Charles O'Connor, First Asst. Atty. Gen., and Philip W. Mothersill, Second Asst. Atty. Gen., for defendant in error.

Allen M. Lambright, of Las Animas, and Morrison Shafroth, of Denver, amici curiae.

WHITE J.

The people, on the relation of the board of county commissioners of Prowers county, instituted mandamus proceedings in the court below to compel Michael A. Leddy, as Auditor of the State, to issue to Prowers county a state warrant, payable out of the 'state road fund,' for the sum of $1,500; a voucher having been duly issued therefor in accordance with the provisions of a purported act of the General Assembly, Session Laws of 1911, c. 23, p. 79, and known as 'House Bill No. 200.' The defense was that the purported legislative act was not passed in conformity with section 22 of article 5 of the Constitution, which reads as follows: 'Every bill shall be read by title when introduced, and at length on two different days in each house; all substantial amendments made thereto shall be printed for the use of the members before the final vote is taken on the bill, and no bill shall become a law except by a vote of a majority of all the members elected to each house, nor unless on its final passage the vote be taken by ayes and noes, and the names of those voting be entered on the journal.' The court found the facts in favor of respondent, denied the writ, and assessed the costs against the petitioner, who brings the cause here for review.

As every enrolled bill, signed by the proper officers and lodged with the Secretary of State, however repugnant to the Constitution, has the appearance, semblance, and force of law, the general rule is that public officials shall obey its terms until some one, whose rights it invades, complains, and calls in the aid of the judicial power to pronounce it void as to him, his property, or his rights. People v. Ames, 24 Colo. 422, 51 P. 426; Ames, Co. Assess., v. People ex rel., 26 Colo. 83, 56 P. 656; Airy v. People, 21 Colo. 144, 155, 40 P. 362; Newman v. People, 23 Colo. 300, 311, 47 P. 278; State ex rel. New Orleans, etc., v. W. W. Heard, State Auditor, et al., 47 La. Ann. 1679, 18 So. 746, 47 L.R.A. 512. However, it may be that the State Auditor comes within that class whose rights may be injuriously affected, or that the nature of his office is such as to require him to raise the question of the validity of the apparent law when called upon to issue his warrant for money appropriated thereunder. In re Appropriations, 13 Colo. 316, 22 P. 464; Henderson v. People, 17 Colo. 587, 31 P. 334; Parks v. Hays, 11 Colo.App. 415, 427, 53 P. 893; Carlile v. Hurd, 3 Colo.App. 11, 15, 31 P. 952; State ex rel. New Orleans, etc., v. W. W. Heard, State Auditor, et al., supra, as annotated in 47 L.R.A. 512. Whatever be the correct rule in that respect, or whether the decisions establish a particular rule in this jurisdiction, we shall not here determine, as the question is neither presented in the pleadings nor discussed in the briefs.

It is alleged that the bill is unconstitutional for the following reasons: (1) It was not read a third time in the Senate; (2) it was never placed on final passage therein; (3) it never received, on final passage therein, a majority vote of the senators elected; (4) the vote therein on final passage was not taken by ayes and noes; (5) the names of the senators voting thereon were not entered on the journal of the Senate.

While a properly signed, enrolled act of the General Assembly, filed with the Secretary of State, is, prima facie, the law, nevertheless, under out Constitution and court decisions, the proof may show otherwise, and it is competent to establish by the journals of either house that a particular act was not passed in the mode prescribed by the Constitution, and, when so proven, that which appeared to be the law has no validity and is not the law at all. Colorado Constitution, § 22, art. 5; In re Roberts, 5 Colo. 525; Rebertson v. People, 20 Colo. 279, 38 P. 326; Rio Grande S. Co. v. Catlin, 40 Colo. 450, 453, 94 P. 323. However, in making such proof there are certain rules to be observed, some of which are as follows: Where the Constitution is silent as to whether a particular act, which is required to be performed in the passage of a bill, shall be entered on the journal, it is left to the discretion of either house to enter it or not; and, in such case, the prima facie proof arising from the enrolled bill lodged with the Secretary of State is not overcome by the silence of the journal on the subject. Mass. M. L. Ins. Co. v. Colo. L. & T. Co., 20 Colo. 1, 36 P. 793; Andrews et al. v. People, 33 Colo. 193, 199, 79 P. 1031, 108 Am.St.Rep. 76. But where the Constitution makes it an essential prerequisite to a bill becoming a law that the names of those voting upon its final passage be entered on the journal, the production of the journal, intact, which fails to show such entry, overcomes the prima facie proof that the purported legislative act is the law. In such case it affirmatively appears from the journals by necessary implication, if not expressly, that the provisions of the Constitution were not observed. Andrews et al. v. People, supra.

These rules are recognized and applied in State of Illinois v. Illinois Central Railroad Company (C. C.) 33 F. 730, 762, where it is held that the signatures of the presiding officers of the two branches of the Legislature, together with that of the executive, to a purported legislative act, raises a strong presumption of regularity in its passage, and such presumption is not overthrown by the journal failing to show the doing of some act which is simply required to be done by the Constitution; but is overthrown by the journal failing to show the doing of some act which the Constitution requires to be entered in the journal. The court therein quotes from Supervisors of Schuyler Co. v. People, 25 Ill. 181, as follows: 'The Constitution does require that every bill shall be read three times in each branch of the General Assembly before it shall be passed into a law; but the Constitution does not say that these several readings shall be entered on the journals. Some acts performed in the passage of laws are required by the Constitution to be entered on the journals, in order to make them valid, and among these are the entries of the ayes and nays on the final passage of every bill; and we held in the case of Spangler v. Jacoby, 14 Ill. 297 , that where the journal did not show this, the act never became a law. But, where the Constitution is silent as to whether a particular act which is required to be performed shall be entered on the journals, it is then left to the discretion of either house to enter it or not; and the silence of the journal on the subject ought not to be held to afford evidence that the act was not done. In such a case we must presume it was done, unless the journal affirmatively shows that it was not done.'

Cooley's Constitutional Limitations, pp. 162, 163, in announcing the same doctrine, says: 'If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the Legislature did not follow any requirement of the Constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of a legislative body; it will not be presumed in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a constitutional requirement in the passage of legislative acts, unless where the Constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.'

Applying these rules to the legislative act under consideration, the objections interposed as to its constitutionality are eliminated, except solely the fifth raising the question as to whether, upon the final passage of the bill in the Senate, the names of those voting thereon were entered on the journal. Indeed, respondent, upon whom rests the burden of establishing the invalidity of the act, concedes the law to be as hereinbefore stated, and relies solely upon the last-mentioned objection.

The Constitution, art. 5, § 13, requires that 'each house shall keep a journal of its proceedings,' etc., and section 22 thereof declares, inter alia, that 'no bill shall become a law * * * unless on its final passage the vote be taken by ayes and noes, and the names of those voting be entered on the journal.' By section 2907, R. S., the Secretary of State is required to have copies of the legislative journals of each house published, certifying to the correctness of such copies. And the same section provides that 'the said journals, when printed and certified as aforesaid, * * * shall be taken and deemed to have been published by authority of the state of Colorado, and shall be taken and held as...