State ex rel. Caillouet v. Laiche

• Decision Date: 01 January 1900
• Docket Number: 13,826
• Citation: 29 So. 700,105 La. 84
• Court: Louisiana Supreme Court
• Parties: STATE EX REL. JOSEPH CAILLOUET, JR., v. EMILE J. LAICHE, CLERK

29 So. 700

105 La. 84

STATE EX REL. JOSEPH CAILLOUET, JR., v. EMILE J. LAICHE, CLERK

No. 13,826

Supreme Court of Louisiana

January 1, 1900

APPEAL from the Twenty-Seventh Judicial District, Parish of St James -- Leche, J.

Kernan & Lambremont, for Relator, Appellee.

G. A Gondran, for Respondent, Appellant.

BLANCHARD J. PROVOSTY, J., takes no part, this case having been submitted prior to his taking his seat on the bench.

OPINION

BLANCHARD J.

The question which this cause presents is whether or not Act No. 120 of the Legislative Acts of the year 1900 was constitutionally enacted into law; whether the act as promulgated passed both Houses of the General Assembly; and whether, therefore, the act is entitled to the force and effect of law.

The act in question bears the title: --

"An act to amend and re-enact Article 95 of the Revised Civil Code of Louisiana of 1870."

Article 95, prior to attempted re-enactment, read: --

"Among collateral relations marriage is prohibited between brother and sister, whether of the whole or of the half blood, whether legitimate or illegitimate, and also between the uncle and the niece, and the aunt and the nephew."

The attempted re-enactment presents it in this form: --

"Among collateral relations marriage is prohibited between brother and sister, whether of the whole or of the half blood, whether legitimate or illegitimate, between the uncle and the niece, the aunt and the nephew, and also between first cousins."

That which is new in the article as thus re-enacted is the prohibition of the marriage of first cousins.

In November 1900 the relator demanded of respondent clerk of the court the issuance to him of a license to marry a certain young lady of the Parish of St. James. He stated the young lady was his first cousin and that he was, with the consent of her parents, engaged to marry her.

The clerk declined to issue the license on the ground that the marriage of first cousins is prohibited by the law of Louisiana and pointed to Act 120 of 1900 as embodying such prohibition.

Whereupon the relator applied to the District Court for its writ of mandamus to compel the clerk to issue the license.

After due proceedings had a decree was entered making peremptory the writ and directing the clerk to issue the license.

This appeal followed.

The contention of the relator, which was sustained by the court a qua, is that the act in question did not pass the two Houses of the General Assembly in such way as to meet the requirements of the Constitution, and, therefore, it is not a valid statute and has not the force of law.

More specifically stated, his contention is the bill, as it passed the House, contained the declaration that the act should take effect "from and after its promulgation;" that in the Senate the words "its promulgation" were stricken out and there were inserted in lieu thereof the words "the first of January 1902," so as to make the act take effect from and after the first of January 1902; that this amendment was never acted on by the House, was not incorporated in the bill as it finally passed the House, nor as it was signed by the Speaker of the House and the President of the Senate, nor as it was approved by the Governor, nor as it was promulgated; that, on the contrary, the words which made the act read it should take effect from and after its promulgation were retained through error in the bill when reported back from the Senate to the House with other Senate amendments not in question, and remained in the act throughout the subsequent proceedings had in reference to it up to and including promulgation; and that since the Senate passed the bill to take effect from and after the first of January 1902 and the House passed it to take effect from and after its promulgation, there was a failure of concurrence of the two Houses on the measure and the same was not, therefore, constitutionally enacted into a statute.

The bill was introduced into the House on the 7th of June 1900, and became House Bill No. 184. It passed the House finally on June 18th; was transmitted to and received by the Senate June 19th; was referred to the Senate Committee on the Judiciary June 20th; was reported back from that committee favorably with one amendment on July 3rd; and on the same day the amendment was adopted.

This amendment was: --

"Strike out the words 'its passage' in line 23 and insert in lieu thereof the words 'first of January 1902.'"

In the Journal of the Senate it is made to read "first of January 1900," but this is shown by the evidence to be a clerical error; that it was "1902" and not "1900."

After this amendment, making the act take effect from and after January 1st, 1902, was adopted by the Senate, the bill as thus amended was passed to its third reading.

The next day (July 4th) the bill was read in full and then, on motion, was returned to the calendar.

The following day (July 5th) it was again read in full and, on motion, was re-committed to the Committee on the Judiciary. It appears to have been considered the same day by...