State ex rel. Chatfield v. Kiesewetter

• Decision Date: 28 June 1887
• Citation: 12 N.E. 807,45 Ohio St. 254
• Parties: STATE ex rel. CHATFIELD and another v. KIESEWETTER, Auditor of State.
• Court: Ohio Supreme Court

12 N.E. 807

45 Ohio St. 254

STATE ex rel. CHATFIELD and another v. KIESEWETTER, Auditor of State.

Supreme Court of Ohio.

June 28, 1887

Mandamus.

To the facts stated in the syllabus may be added the following which appear by the petition: The bill in question provided for the publication of 15,000 copies of the several chapters that had been prepared by the state geologist and his assistants, to be entitled ‘ Geology of Ohio, Vol. 6 Economic Geology; ’ the printing to be under the supervision of the state geologist, and the books to be distributed, 50 to the state library, 400 to the state geologist, 1 to each state office and institution, 4,000 to the secretary of state for sale at cost, and the remainder to be equally divided among members of the general assembly. Fifteen thousand dollars was the amount to be appropriated for the expense of publication. The general assembly adjourned on the twenty-first day of March. On the twenty-first day of April following, the state geologist Edward Orton, LL. D., purchased of the relators paper to the value of $1,630.40, which was delivered. Thereupon there was executed by that officer and the governor, and delivered to the relators, a warrant for the above sum upon the defendant, which was duly presented to the defendant, and his warrant on the state treasurer demanded, which was refused. The petition prays a peremptory writ to compel the defendant to issue his warrant.

Syllabus by the Court

A bill entitled ‘ A bill to provide for the publication of volume 6, Geology of Ohio,’ was introduced into the senate of the last general assembly, and was designated ‘ S. B. No. 327.’ It was amended, then duly passed in the senate, and transmitted to the house; there amended, duly passed, and returned to the senate, where the amendments were agreed to, and the amended bill duly passed. The bill was not copied upon the journal of either house, nor signed by the presiding officer of either house, nor there enrolled as a law, nor filed in the regular course of proceeding in the office of the secretary of state, nor was it published among the laws enacted by the Sixty-seventh general assembly. Held , (1) A printed bill bearing title and number identical with the one described, deposited in the state library, in accordance with section 59, Rev. St., cannot be received in evidence to prove the contents of the bill in question. (2) The bill, not being authenticated as required by section 17, art. 2, Const., which provides ‘ that the presiding officer of each house shall sign, publicly, in the presence of the house over which he presides, while the same is in session and capable of transacting business, all bills and joint resolutions passed by the general assembly,’ did not become a law.

Nash & Lentz , for relators.

J. A. Kohler , Atty. Gen., and James Lawrence , for defendant.

SPEAR J.

The burden is on the relators to show that the bill became a law. It is not claimed that the bill was signed by the presiding officer of either house, or was enrolled or filed in the office of the secretary of state in the regular course of proceeding. It is not to be found among the printed laws in the current volume of Ohio Laws. Following the laws and resolutions, and immediately after the certificate of the secretary of state, an addendum is found printed (by what authority does not appear) on pages 454 and 455, containing what is claimed to be a copy of the bill as passed, and with it a certificate of the clerk of each house, of date some 20 days subsequent to the adjournment of the general assembly, giving a recital of the action taken in each house in regard to the bill; that of the clerk of the senate, in addition, to the effect that the foregoing is a true copy of the bill as it passed. This cannot aid the relators. The proceedings, as shown by the journals, the court may take judicial notice of, and the certificate of the identity of the printed bill, by the clerk of the senate, is not of consequence, because not authorized by statute. Not so, however, with the certificate of the secretary of state, on page 453. That is required by section 129, Rev. St., and effect is given to it by virtue of that section. The certificate shows that the foregoing acts and joint resolutions are true copies, copied from the original rolls on file in his office, and negatives the idea that that which follows is copied from such rolls. Hence the contents of pages 454 and 455 of the volume referred to have no legal significance, and the volume, (84 Ohio Laws,) in legal effect, indicates that this bill was not one of the laws enacted by the Sixty-seventh general assembly. No copy or record of the bill appears on the journal of either house. The bill presented does not, therefore, in the light of what the court may take judicial notice of, purport to be a law, and, in order to declare it such, the court must ascertain its contents by resort to sources of information other than those referred to.

The questions then, are whether, for this purpose, resort may be had to evidence dehors the journals and the roll of duly certified laws in the office of the secretary of state, and whether, notwithstanding the bill was not signed by the presiding officer of either house, and was not enrolled in the office of the secretary of state as a law, it nevertheless has the force of law. Unquestionably, the legislature intended that this bill should become a law, and, unless this court can answer the questions proposed in the affirmative, this purpose will be, at least for the present, defeated. The publication provided for by the bill would tend to the advancement of science, and to the enlightenment of the people upon a subject of general interest, and one which is constantly growing in importance. So that there is strong inclination on the part of the court to determine the question involved in such way as will give expression to the will of the law-making power. Nevertheless, if, upon due consideration, it is manifest that the bill cannot be maintained as a law of the land, it is the imperative duty of the court to so declare, however much we may regret the result. Impressed with the importance of the question, we have given to the case careful consideration.

Section 17, art. 2, Const., is as follows: ‘ The presiding officer of each house shall sign, publicly in the presence of the house over which he presides, while the same is in session and capable of transacting business, all bills and joint resolutions passed by the general assembly.’ No judicial interpretation has been given to this section, so far as we are informed. The preceding section, which provides that every bill shall be fully and distinctly read on three different days, and that no bill shall contain more than one subject, which shall be clearly expressed in its title, etc., has been considered by this court, and the views of the court upon it are well stated by SWAN, J., in Pim v. Nicholson , 6 Ohio St. 177, as follows: ‘ This court held, in the case of Miller v. State , 3 Ohio St. 475, that the provisions of the above section, relating to the distinctness required in reading a bill, and the number of times a bill shall be read, were, as they in fact import, intended as permanent rules for the proceeding of the houses. They are directory only, and are to be enforced by the houses, and not by judicial interposition. The further provision, in the same section, that no bill shall contain more than one subject, which shall be clearly expressed in its title, is also made a permanent rule in the introduction and passage of bills through the houses. The subject of the bill is required to be clearly expressed in the title, for the purpose of advising members of its subject, when voting, in cases in which the reading has been dispensed with by a two-thirds vote. The provision that a bill shall contain but one subject was to prevent combinations, by which various and distinct matters of legislation should gain a support which they could not if presented separately. As a rule of proceeding in the general assembly it was manifestly an important one. But if it was intended to effect any practical object for the benefit of the people in the examination, construction, or operation of acts passed and published, we are unable to perceive it. The title of an act may indicate to the reader its subject, and under the rule each act would contain one subject. To suppose that for such a purpose the constitutional convention adopted the rule under consideration would impute to them a most minute provision for a very imperfect heading of the chapters of laws and their subdivision. This provision being intended to operate upon bills in their progress through the general assembly, it must be held to be directory only.’

It is entirely clear that section 17 cannot be treated as a mere guide to the action of the general assembly in order to the more full enlightenment of the members in the performance of their duties, or as a check upon them, as the signing of a bill by the presiding officer in no substantial way affects the action of the members, or relates to the passage of the bill through either body. The members, as such, have performed every duty regarding a bill prior to the time when the duty of signing by the presiding officers may be performed. This signing in open session may, incidentally serve to fix the attention of members to the bill being signed, but it has a much more important purpose. It authenticates a bill, and affords a sure means of identification. No official...