State ex rel. Brassey v. Hanson

• Decision Date: 03 August 1959
• Docket Number: No. 8807,8807
• Citation: 81 Idaho 403,342 P.2d 706
• Parties: STATE ex rel. Barton A. BRASSEY and George L. Crookham, Jr., Plaintiffs, v. Max HANSON, Chief Clerk of the House of Representatives, Edward Middlemist, Secretary of the Senate, William Drevlow, Lt. Governor and President of the Senate, and Robert Doolittle, Speaker of the House of Representatives, Defendants.
• Court: Idaho Supreme Court

Page 706

342 P.2d 706

81 Idaho 403

STATE ex rel. Barton A. BRASSEY and George L. Crookham, Jr., Plaintiffs, v. Max HANSON, Chief Clerk of the House of Representatives, Edward Middlemist, Secretary of the Senate, William Drevlow, Lt. Governor and President of the Senate, and Robert Doolittle, Speaker of the House of Representatives, Defendants.

No. 8807.

Supreme Court of Idaho.

Aug. 3, 1959.

Allan G. Shepard, Boise, for plaintiffs.

Sylvan A. Jeppesen, Boise, for defendant Hanson.

Frank L. Benson, Atty. Gen., E. G. Elliott, Thos. Y. Gwilliam, B. James Koehler, Jr., Asst. Attys. Gen., for defendants Drevlow, Middlemist and Doolittle.

TAYLOR, Justice.

Relators, members of the House of Representatives, as plaintiffs, made original application to this Court for a writ of mandate to compel defendants, as Chief Clerk and Speaker of the House of Representatives, and Secretary of the Senate, and the Lt. Governor as President of the Senate, all of the Thirty-fifth Session of the Idaho Legislature, to sign and present to the Governor, House Bill No. 349, as amended and passed by both houses of the legislature.

Alternative writ issued. Appearing for the President and Secretary of the Senate and the Speaker of the House of Representatives, the Attorney General filed a motion to quash the alternative writ and a return thereto. Max Hanson, Chief Clerk of the House of Representatives, filed a separate return.

The act in question, Sess.Laws 1959, c. 299, is entitled 'Idaho Income Tax Act' and purports to be a revision of the state income tax law, intended to make the provisions of the state law 'identical to the provisions of the Federal Internal Revenue Code relating to the measurement of taxable income'. It is a lengthy act and contains a repeal of the existing income tax law. Idaho Code, tit. 63, c. 30, as amended.

'We take judicial notice of the public and private acts of the legislature (Sec. 16-101(3) I.C.A. [I.C. § 9-101]), and the Journals of the legislative bodies to determine whether an act of the legislature was constitutionally passed and for the purpose of ascertaining what was done by the legislature. Burkhart v. Reed, 2 Idaho, Hasb., 503, 509, 22 P. 1; State v. Eagleson, 32 Idaho 280, 181 P. 935.' Keenan v. Price, 68 Idaho 423, 435, 195 P.2d 662, 668.

The parties on both sides recognize the applicability of the 'journal entry rule.' 82 C.J.S. Statutes § 83. In their pleadings they refer to and plead the journal entries of both houses. Thus, no issue of fact is raised.

During its course through the house, H.B. No. 349 was amended by striking from the printed bill, page 9, line 10, of § 24, the number '3.5', and inserting in lieu thereof the number '3'. The bill was passed by the house, as amended, by a vote of 44 ayes and 13 nays. In the senate other amendments were added and the bill was passed as amended, and as amended in the senate, by a vote of 33 ayes and 11 nays. Upon its return to the house that body concurred in the senate amendments and again passed the bill, as amended in the senate, by a vote of 48 ayes, 9 nays.

Through oversight or error in enrolling, the house amendment was omitted, and the enrolled bill was signed by the president of the senate and the speaker of the house, and was approved by the governor, in form without the house amendment.

Section 24 of the act fixes the graduated tax imposed upon individuals, estates and trusts. Subsection (a) fixes the rate of the tax on the first $1,000 of taxable income. As originally introduced, this rate was stated in the bill to be 3.5 per centum. The house amendment reduced the rate to 3 per centum.

Plaintiffs assume that the bill as enrolled is invalid under previous decisions of this court (Burkhart v. Reed, 2 Idaho 503, 22 P. 1; Katerndahl v. Daugherty, 30 Idaho 356, 164 P. 1017), and pray for an order requiring defendants to correctly enroll the bill to include the house amendment, and then to sign and present the corrected bill to the governor.

Relying on the same authorities the defendants contend the bill as enrolled is invalid and that it cannot now be corrected, and ask the court to declare invalid both the enrolled bill and the bill as passed by the legislature.

Burkhart v. Reed, supra, is not in point. There the plaintiff sought to have the court take testimony as to what occurred in the house of representatives on the closing day of the session and from such evidence find the facts, and make or correct the journal entries to conform to the facts so found. The court said:

'* * * The principle of law is settled beyond controversy that a court will not go behind the journal of a legislature to ascertain what was done by that body. The journal itself is conclusive, and, if the journal is incorrect or improperly made up, it is for the legislature itself to correct it, and not for the court. The journal, as filed, purports to be the journal of the legislature. It is signed by George P. Wheeler, speaker pro tem. of the house, and would, therefore, seem to be correct on its face. The presumption always is that when an act of the legislature is signed and enrolled that it has gone through all the necessary formalities. A few of the states hold that the enrolled statute is conclusive evidence of its due passage and validity. A great majority of the states, however, hold that this makes out a prima facie case only, and that such case may be over-thrown by the journals, and that the judges, for the purpose of satisfying themselves, may take judicial notice of the journal, and, if it appear to be regular, that is final and conclusive upon the courts.' Burkhart v. Reed, 2 Idaho 503, 511, 22 P. 1, 4.

Here the journal entries are not questioned by either party, and the court in determining the validity of the statute is not requested to make any change or correction therein.

Katerndahl v. Daugherty, supra, was an action against the secretary of state seeking to compel the secretary to insert in an enrolled bill an amendment made in the senate which was omitted through error in enrolling. The court said:

'Secution 10 of article 4 of the Constitution reads in part as follows: 'Every bill passed by the Legislature shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it, and thereupon it shall become a law; but if he did [do] not approve, he shall return it with his objections to the house in which it originated, which house shall enter the objections at large upon its journals and proceed to reconsider the bill.' Under this section of the Constitution, no bill can become a law unless it is presented to the Governor for his approval. By the agreed statement of facts the bill as amended was never presented to the Governor and therefore cannot be a law of the state. This proposition is sufficient to dispose of this case.

'The question as to whether the bill as certified by the presiding officers of the two houses of the legislature, and signed by the governor, is a valid law is not presented in this case and will not be decided.' Katerndahl v. Daugherty, 30 Idaho 356, 358-359, 164 P. 1017, 1018.

While the court refused to require the secretary of state to correct the enrolled bill by inserting therein the senate amendment, it did not declare the act, as certified by the officers of the two houses and approved by the governor, invalid. The act was published by the secretary of state as certified, Sess.Laws 1917, c. 61, and in part still subsists as recognized law. I.C. §§ 40-1603, 40-1605. The amendment omitted in that case consisted of the two words, 'when completed', intended to clarify the act as to the basis of accounting between highway districts affected by the creation of a new district. The decision in effect is only that an amendment, of minor import, was lost throuh the enrolling error.

In the case at bar the amendment is of vital importance not only to the state, but to every income taxpayer. Because of the great public importance of the issue, we have accepted original jurisdiction (Luker v. Curtis, 64 Idaho 703, 136 P.2d 978; Keenan v. Price, 68 Idaho 423, 195 P.2d 662) and, waiving questions of technical procedure, will determine the issue upon its merits.

We have many times held that mere clerical errors or misprisions occurring in legislative acts will be corrected by the courts. See Roos v. Belcher, 79 Idaho 473, 321 P.2d 210, where such cases are collected on page 481 of 79 Idaho, on page 214 of 321 P.2d. The error in this case, although clerical in its origin, materially affects a vital matter of substance. See Gillesby v. Board of Com'rs of Canyon County, 17 Idaho 586, 107 P. 71. In the Gillesby case the court quoted the applicable general principle from In re Wellington, 16 Pick. 87, 33 Mass. 87, 26 Am.Dec. 631, as follows:

"That when called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.'

'And this rule has been approved in this state. Wooley v. Watkins, 2 Idaho, Hasb., 590, 22 P. 100, ; Wright v. Kelley, 4 Idaho, Hasb., 624, 43 P. 565.' Gillesby v. Board of Com'rs of Canyon County, 17 Idaho 586, 592, 107 P. 71, 72.

"It is fundamental that the judicial power to declare legislative action invalid upon constitutional grounds is to be exercised only in clear cases. * * *' Los Angeles Gas & Electric Corp. v. Railroad Commission, 289 U.S. 287, 53 S.Ct. 637, 645, 77 L.Ed. 1180, at page 1194.' Petition of Mountain States Telephone & Tel. Co., 76 Idaho 474, 480, 284 P.2d 681, 683.

"In the case of statutes passed by the legislative assembly and assailed as...