State ex rel. Board of Commissioners of Benton County v. Boice

• Decision Date: 11 April 1895
• Docket Number: 17,301
• Citation: 40 N.E. 113,140 Ind. 506
• Parties: The State, ex rel. the Board of Commissioners of Benton County, v. Boice et al
• Court: Indiana Supreme Court

40 N.E. 113

140 Ind. 506

The State, ex rel. the Board of Commissioners of Benton County, v. Boice et al

No. 17,301

Supreme Court of Indiana

April 11, 1895

Original Opinion of November 27, 1894, Reported at: 140 Ind 506.

OPINION

Hackney, J.

The attorney-general's able brief in support of the appellant's petition for a rehearing has been devoted chiefly to the proposition that this court should uphold the fee and salary law of 1891 by resort to the engrossed bill to supply the omission of a salary for the treasurer of Shelby county. It is expressly conceded by him that upon a consideration alone of the enrolled act the law is not valid for the reasons stated in the original opinion. It is conceded also, that under the decisions of this and many other courts, there is no resort to the engrossed bill for the purpose of disclosing any discrepancy or irregularity which would affect the validity of an act. But, it is urged with much force and ability, that such resort may be had to support and guard from attack an act of the Legislature. As early as the case of Evans v. Browne, 30 Ind. 514, the correct rule, and the reason therefor, have been fully determined, and have since been approved so frequently as, in our opinion, to preclude reasonable doubt of their correctness. Bender v. State, 53 Ind. 254; Edger v. Board, etc., 70 Ind 331; Board, etc., v. Burford, 93 Ind. 383; Stout v. Board, etc., 107 Ind. 343, 8 N.E. 222; State, ex rel., v. Denny, 118 Ind. 449, 21 N.E. 274.

In the case first cited, the holding which has been approved in those last cited, it was held that the authentication of the presiding officers of the Legislature to the enrolled act was conclusive evidence of the proper enactment of the law, and that the courts and the public could not look elsewhere in denial of that authentication. The necessity for a definite rule was made manifest by the requirement that the courts and the people were held to know the law, and that if this knowledge should be made to depend upon the varying impressions and decisions necessarily arising from a resort to contradictory records, and with equal propriety to the hastily prepared journals or the treacherous memory of a member, the requirement would involve endless confusion and hardship. It was held that to avoid such confusion and to establish a definite rule, the framers of the constitution required the signatures of the presiding officers to the enrolled act.

The learned judge who wrote that opinion said: "Courts should be very careful not to invade the authority of the Legislature. Nor should anxiety to maintain the constitution, laudable as that must ever be esteemed, lessen their caution in that particular; for if they overstep the authority which belongs to them, and assume that which pertains to the Legislature, they violate the very constitution which they thereby seek to preserve and maintain."

If the object of the constitutional requirement, that the presiding officers should sign the bill passed, was to give the authenticity necessary to a definite rule, then the same reason must exist for refusing to go behind the enrolled act for the purpose of supporting it as for its destruction. In either event, to go back of the constitutional authentication would be unauthorized.

Of course we do not venture an opinion as to the power of the courts to consider any act or circumstance following the regular signing of the bill as passed, which act or circumstance may be claimed to have despoiled the bill as passed and signed. The spoliation of an act, the act not being complete until signed, would raise a very different question from that here presented. Here there is nothing of which the court can take judicial cognizance that there was such a spoliation.

We did not consider this question on the original hearing, for the reason that counsel, then representing the appellant, expressly waived the question. They said: "The enrolled bill, as signed by the speaker of the House of Representatives, the president of the Senate, and approved by the Governor of the State, is conclusive evidence of what was enacted by the Legislature. This is not only the doctrine of our own court, but also that of the United States, where an entire and very important section was left out of the enrolled tariff bill, though embraced in the engrossed bill. Field v. Clark, 143 U.S. 649, 36 L.Ed. 294, 12 S.Ct. 495," and citing the cases to which we have already made reference.

The complication existing in the pending settlements of certain county treasurers with the auditor of State, and possible embarrassment of such settlements in the future, induce us to state more fully our position in the original opinion as to the power of the...