School Dist. 11, Dakota County, Neb., v. Chapman

• Decision Date: 15 January 1907
• Docket Number: 2,173.
• Citation: School Dist. 11, Dakota County, Neb., v. Chapman, 152 F. 887 (8th Cir. 1907)
• Parties: SCHOOL DIST. NO. 11, DAKOTA COUNTY, NEB., v. CHAPMAN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

152 F. 887

SCHOOL DIST. NO. 11, DAKOTA COUNTY, NEB., v. CHAPMAN et al.

No. 2,173.

United States Court of Appeals, Eighth Circuit.

January 15, 1907

[Copyrighted Material Omitted]

Elbert H. Hubbard, B. H. Dunham, and Eric A. Burgess, for plaintiff in error.

James M. Woolworth and W. D. McHugh. for defendants in error.

Before VAN DEVANTER and HOOK, Circuit Judges, and POLLOCK, District judge.

VAN DEVANTER, Circuit Judge.

This writ of error challenges a judgment recovered by the defendants in error against the school district in an action at law upon certain coupons clipped from bonds issued by the school district in pursuance of a statute of the state of Nebraska, approved February 26, 1879(Laws 1879, p. 170), and other acts amendatory thereof, including that of March 31 1887(Laws 1887, p. 597).

The chief contentions presented by the assignments of error are to the effect that the amendatory act of 1887 is invalid because certain of the requirements of article 3 of the Constitution of the state were not observed in its enactment.Three sections of this article are as follows:

'Sec 8.Each house shall keep a journal of its proceedings, and publish them. * * * '

'Sec. 10.The enacting clause of a law shall be 'Be it enacted by the Legislature of the state of Nebraska,' and no law shall be enacted except by bill.No bill shall be passed except by assent of a majority of all the members elected to each house of the Legislature.And the question upon final passage shall be taken immediately upon its last reading, and the yeas and nays shall be entered upon the journal.

'Sec. 11.Every bill and concurrent resolution shall be read at large on three different days in each house, and the bill and all amendments thereto shall be printed before the vote is taken upon its final passage.No bill shall contain more than one subject, and the same shall be clearly expressed in its title.And no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed.The presiding officer of each house shall sign, in the presence of the house over which he presides, while the same is in session and capable of transacting business, all bills and concurrent resolutions passed by the Legislature.'

The legislative journals, as published by authority, disclose these facts respecting the bill for the act in question: It originated in the House of Representatives, where it was passed by the constitutional majority, the vote being taken by yeas and nays which were entered upon the journal.In the Senate it was amended and passed in its amended form by the requisite majority; the vote being taken and entered as in the House.It was then returned to the House with the request that the amendment be concurred in, but whether this was done, and if so by what majority, and in what manner the vote was taken, are matters in respect of which the journal of the House is silent.As enrolled under the supervision of the joint committee on enrollment, as signed by the presiding officer of each house, and as presented to and approved by the Governor, the bill embodied the amendment.

It is insisted that the amendment could only have been concurred in by a vote of the house in which the yeas and nays were taken and entered upon the journal, and that the absence of such an entry renders the act void.Whether or not the insistence is well taken is to be determined by ascertaining what is the proper construction and application of the stateConstitution, as settled by the decisions of the court of last resort of the state.South Ottawa v. Perkins,94 U.S. 260, 24 L.Ed. 154;Post v. Supervisors,105 U.S. 667, 26 L.Ed. 1204.Turning to the decisions of that court, we find that in Hull v. Miller,4 Neb. 503, it was held that a provision in the stateConstitution of 1866, substantially the same as that in section 10, supra, respecting the entry upon the journal of the yeas and nays on the passage of a bill, did not apply to a vote of concurrence by either house in an amendment of the other, but only to the vote taken upon the passage of a bill following its last or third reading in each house, which was treated as the vote on its final passage.And in State ex rel. v. Liedtke,9 Neb. 490, 4 N.W. 75, which related to an act passed after the adoption of the present Constitution, the court, after observing that 'the words 'final passage,' as applied to matters of legislation, were well known to the framers of the Constitution, and presumably to the people who adopted it,' held that the requirement of section 11, supra, that 'the bill and all amendments thereto shall be printed before the vote is taken upon its final passage,' does not apply to an amendment proposed by a committee of conference after disagreeing votes in the two houses, but only to amendments proposed before the vote following the last or third reading in each house, which was again treated as the vote on final passage.These decision show that, under the authoritative interpretation of the stateConstitution, a concurrence by one house in an amendment of the other is not the final passage of a bill on which the yeas and nays are required to be taken and entered upon the journal.

It is next insisted that, though such concurrence be not the final passage of a bill within the meaning of section 10, supra, the entire silence of the journal respecting a concurrence by the House renders the act void.But the rule in Nebraska is otherwise, at least in respect of matters like this which are not specially required by the Constitution to be entered upon the journal.It was so held in Hull v. Miller, supra, where the court said of the requirement that every bill shall be read on three different days: 'But inasmuch as it is not required, as it is in respect of bills on their final passage, that each house shall enter upon its journal and preserve the evidence of its having obeyed this rule, it will be presumed that they did so, unless the contrary clearly appear.'

In other cases, notably Webster v. Hastings,59 Neb. 563, 568, 81 N.W. 510, andState v. Burlington & Missouri River R.R. Co.,60 Neb. 741, 746, 84 N.W. 254, the rule relating to the impeachment of a duly authenticated and enrolled act by reference to the legislative journals is stated in this way:

'The rule established by our former decisions is that the due authentication and enrollment of a statute affords only prima facie evidence of its passage, and that the legislative journals may be examined for the purpose of ascertaining whether the measure was enacted in the mode prescribed by the Constitution.If the entries found in the journals explicitly and unequivocally contradict the evidence furnished by the enrolled bill, the former will prevail.The journals, being the records of legislative proceedings kept in obedience to the command of the Constitution, are considered the best evidence of what affirmatively appears in them regarding the enactment of laws.'

And in State v. Frank,60 Neb. 327, 333, 83 N.W. 74, 75, it was said, after referring to prior decisions:

'What they decide is that the journals are unimpeachable evidence of what they contain; not that their silence convicts the Legislature of having violated the Constitution.Every presumption is in favor of the regularity of legislative proceedings; and it is rather to be inferred that the journals are imperfect records of what was done than that the Legislature failed to perform the more solemn and important duties enjoined upon it by the Constitution.In Ex parte Howard-Harrison Iron Co., 119 Ala. 484, 491, 24 So. 516, 519, 72 Am.St.Rep. 928, cited inState v. Abbott,80 N.W. 499, 59 Neb. 106, it is said: 'Of course, the presumption is that the bill signed by the presiding officers of the two houses and approved by the Governor is the bill which the two houses concurred in passing, and the contrary must be made to affirmatively appear before a different conclusion can be justified or supported.So here it must be made to affirmatively appear that amendments of the house bill in question were adopted by the Senate, and were not concurred in by the House.'The enrolled bill has its own credentials, it bears about it legal evidence that it is a valid law, and this evidence is so cogent and convincing that it cannot be overthrown by the production of a legislative journal that does not speak, but is silent.Such seems to be the conclusion reached by a majority of the courts; and such, certainly, is the trend of modern authority.To hold otherwise would be to permit a mute witness to prevail over evidence which is not only positive, but of so satisfactory a character that all English and most American courts regard it as ultimate and indisputable.'

The last case upon the subject is State ex rel. v. City of Wahoo,62 Neb. 40, 86 N.W. 923, and it was there held that an act originating in the Senate was not invalidated, because the journal of that body was silent in respect of its concurrence in an amendment of the House which was embodied in the enrolled act.

The validity of the act is also questioned because the bill, after its amendment by the Senate, was not read at large on three different days in each house.But of this it is enough to observe that it is authoritatively settled by the decisions of the Supreme Court of the state that amendments made during the process of enactment do not take from a bill the status obtained by prior readings or make it necessary to begin the readings anew.Cleland v. Anderson,66 Neb. 252, 262, 92 N.W. 306, 96 N.W. 212, 98 N.W. 1075;State v. Liedtke,9 Neb. 490, 4 N.W. 63.

Another objection urged against the act is that it did not pass both houses and receive...