Ritchie v. Richards

Decision Date21 December 1896
Docket Number764
Citation14 Utah 345,47 P. 670
CourtUtah Supreme Court

Application by Morris L. Ritchie against Morgan Richards state auditor, James Chipman, state treasurer, and A. C Bishop, attorney general, as the board of state canvassers for a writ of prohibition.

Application denied.

Arthur Brown, C. F. Loofbourow, John M. Zane, and C. O. Whittemore, for petitioner.

The journals must show, in order to support the integrity of any act, that all the necessary constitutional steps were taken in its passage. Cooley's Const. Lim., 506-7; McCreary on Elections, 304; Ryan v. Lynch, 68 Ill. 162; Spengler v. Jacobs, 14 Ill. 298; People v. Storm, 35 Ill. 121; Will v. Kempfield, 54 Cal. 112; Illinois Central R. R. Co. v. People, 143 Ill. 434; Railroad Tax Case, 8 Sawyer 293-5; Post v. Supervisors, 105 U.S. 667; City of Ottawa v. Perkins, 94 U.S. 261.

On the subject of a marked ballot not being a secret ballot we refer to the following authorities: Brisbin v. Cleary, 26 Minn. 106; People v. Pease, 27 N.Y. 45; Williams v. Stein, 38 Ind. 89; State v. Hillmantel, 23 Wis. 422; Pennington v. Hall, 62 N.W. 116; Curran v. Clayton, 29 Atlantic 932; Parvin v. Windberg, 30 N.E. 791; People v. Com. Onodego County, 29 N.E. 327; Nichols Case, 129 N.Y. 395; Cooley Const. Lim., 6th Ed., 760; Tebbe v. Smith, 108 Cal. 110; Major v. Barker, 35 S.W. 543; McCreary on Elections, 304; State v. Wray, 109 Mo.

W. H. Dickson, H. P. Henderson, J. W. Judd, and R. B. Shepard, for respondents.

ZANE C. J. BARTCH, J., MINER, J., concurring.


ZANE, C. J.:

The plaintiff is one of the judges of the Third judicial district of the state of Utah, appointed by the governor on June 1st to fill the vacancy caused by the resignation of Judge Le Grand Young, whose term of office extended to the first Monday of January, 1901. In pursuance of an act entitled "An act relating to and making sundry provisions concerning elections," in force April 5, 1896 (Sess. Laws Utah 1896, p. 369), and of an act in relation to elections, defining offenses against the same, and prescribing punishments therefor, in force March 28 (Id. p. 183), a general election was held on the 3d day of November of that year, at which a person was elected to fill the vacancy so held by the plaintiff. The plaintiff asks the court to issue a writ prohibiting the defendants from canvassing the returns of the election of his successor, held and conducted according to those laws. The plaintiff insists that they are void, and that, therefore, the writ should issue. The journals of the legislature do not expressly show how the votes were taken on the final passage of the bills, but the plaintiff claims that the entries authorize the inference that they were viva voce. The fact is entered upon the journals of the respective houses that the presiding officer of each house over which he presided signed both bills.

It is conceded that the bills were properly enrolled, signed by the presiding officer of each house, and approved and signed by the governor, and duly filed in the office of the secretary of state. The defendants insist that these bills, so authenticated, should be deemed complete and unimpeachable; that such authentication furnishes conclusive evidence that the legislature complied with all requisite constitutional provisions in their enactment, and that they were duly enrolled, signed, approved, and deposited in the public archives.

Section 14 of article 6 of the state constitution declares that "each house shall keep a journal of its proceedings, which, except in cases of executive sessions, shall be published, and the yeas and nays on any question, at the request of five members of such house, shall be entered upon the journal." This section requires the yeas and nays upon any question to be entered on the journals upon the request of five members. If such entry had been required for evidence of the passage of the bill, it would not have been made to depend on a request. The purpose of this entry appears to be for future reference and publicity, that the members may act under a consciousness of their responsibility to their constituents and to the public. Section 22 of the same article provides: "The enacting clause of every law shall be: Be it enacted by the legislature of the state of Utah, and no bill or joint resolution shall be passed, except with the assent of a majority of all the members elected to each house of the legislature, and after it has been read three times. The vote upon the final passage of all bills shall be by yeas and nays; and no law shall be revised or amended by reference to its title only; but the act as revised, or section as amended, shall be re-enacted and published at length." This section prescribes the enacting clause of every law, and requires the assent of a majority of all the members elected to each house thereto after it has been read three times, and a vote by yeas and nays upon its final passage; and forbids the revision of any law by reference to its title, but requires the act revised, or section as amended, to be enacted and published at length. This section does not expressly require the yeas and nays to be entered on the journals, nor does it say by what means the acts specified shall be evidenced. Section 24 of the same article declares: "The presiding officer of each house in the presence of the house over which he presides shall sign all bills and joint resolutions passed by the legislature, after their titles have been publicly read, immediately before signing, and the fact of such signing shall be entered upon the journal." This section requires the title of each bill passed to be publicly read in the presence of each house, and the bill to be then signed, and the fact of signing to be entered on the journals. Section 8 of article 7 of the same instrument so far as necessary to quote it, is: "Every bill passed by the legislature before it becomes a law, shall be presented to the governor; if he approve, he shall sign it, and thereupon it shall become a law." This provision, in effect, says that every bill passed by the legislature becomes a law upon being signed by the governor, but it does not say how the passage of a law shall be evidenced.

Constitutional provisions prescribing modes of enacting laws should be observed. But whether the proof of such observance consists of the enrolled laws deposited in the office of the secretary of state, duly signed by the presiding officers of the respective houses, and with the approval and signature of the governor, or of the entries found on the journals of the respective houses, furnishes a question as to which the courts of last resort in the various states differ. Objections may be urged to either means of proof. Minutes and memoranda may not always be correctly transcribed upon the journals. And the minutes and memoranda are sometimes made amid circumstances calculated to confuse and district the attention, and to divert it from the business in hand. Bills may sometimes be enrolled, and signed by presiding officers, and approved by the governor, that have never been duly passed. Either source is subject to possible error. Courts and lawyers will differ as to which is the surest and best source of information. However, when statutes are published people shape their actions and conduct with respect to them; they incur obligations, acquire rights, and discharge duties in reliance upon them. If such a law, in any instance, should turn out to be void, because some requirement of the constitution had not been observed in its passage, great injustice would be likely to follow. We must regard the enrolled bill, duly signed, approved, and deposited in the public archives, as a more accessible and convenient source of authentication, and, if referred to, less liable to overturn law, and quite as reliable as the journals of the two houses. The people ought not to be required to ransack such journals to ascertain whether laws have been duly passed, and they cannot be expected to do so. Nor should lawyers, before advising clients, be required to search such journals. Statutory enactments should not depend nor stand upon such a sandy and uncertain foundation, if a better one can be found. Laws evidenced by the signatures of the presiding officers, and the approval and signature of the governor, and the filing in the public archives, ought not to be overthrown by memoranda on the journals which the constitution does not require to be made.

We are of the opinion that the enrolled bill, duly signed, approved and deposited in the office of the secretary of state, is quite as reliable, and more accessible and convenient than the entries, or the absence of entries, of legislative action shown by the journals of the two houses, and, if relied upon as unimpeachable, will be less liable to overturn laws upon which the people have relied, and under which they have acquired rights, incurred obligations, and performed duties,--less liable in that way to cause litigation and confusion. The question involves consideration of public policy. In Lafferty v. Huffman (a late case decided by the Kentucky court of appeals), 99 Ky. 80, 35 S.W. 123, the objection to the law was "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." After a thorough examination of the question, similar to the one now under consideration, the court said: "From every point of reason, therefore, we are convinced that the enrolled bill, when attested by the presiding officers as the law requires, must be accepted by the courts as the very bill adopted by the legislature, and that its mode of enactment was in conformity to...

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