State ex rel. Douglas Cnty. v. Frank

• Decision Date: 07 June 1900
• Citation: 83 N.W. 74,60 Neb. 327
• Parties: STATE EX REL. DOUGLAS COUNTY v. FRANK, CLERK OF DISTRICT COURT.
• Court: Nebraska Supreme Court

60 Neb. 327

83 N.W. 74

STATE EX REL. DOUGLAS COUNTY

v.FRANK, CLERK OF DISTRICT COURT.

Supreme Court of Nebraska.

June 7, 1900.

Syllabus by the Court.

1. The enrollment, authentication, and approval of an act of the legislature are prima facie evidence of its due enactment.

2. The legislative journals may be looked into for the purpose of ascertaining whether a law was properly enacted.

3. The silence of the legislative journals is not conclusive evidence of the nonexistence of a fact, which ought to be recorded therein, regarding the enactment of a law.

4. When the legislative journals are defective, mutilated, incomplete, their silence will not, as against the enrolled bill on file in the office of the secretary of state, be taken as evidence that the yeas and nays on the final passage of the bill were not recorded as required by the constitution.

5. In such case it may be shown by extrinsic evidence that on the final passage of a bill the yeas and nays were taken, and duly recorded.

6. A law general in character, although affecting but one city or county, is not violative of the provision of the constitution against special legislation.

7. The act of 1899 (Sess. Laws 1899, c. 31) amending section 3, c. 28, Comp. St. 1897, entitled “Fees,” does not amend or change section 1 of said chapter.

8. Nor does such amendatory act trench upon or amend section 43, c. 19, Comp. St. 1899, respecting the appointment of deputies by clerks of the district court.

9. The act of 1899 (Sess. Laws, c. 31) amending section 3, c. 28, Comp. St. 1897, entitled “Fees,” limits the compensation which a clerk of the district court may receive for his services, is germane to the section amended, and its provisions are within its title.

Error to district court, Douglas county; Estelle, Judge.

Application by the state, on the relation of Douglas county, for writ of mandamus against Albyn L. Frank, clerk of the district court for Douglas county. From an order denying the writ, plaintiff brings error. Reversed.Geo. W. Shields, for plaintiff in error.

Greene & Breckenridge and Ed P. Smith, for defendant in error.

SULLIVAN, J.

This proceeding in error brings before us for review a judgment of the district court denying the application of the relator for a writ of mandamus requiring the respondent, Albyn L. Frank, as clerk of the district court for Douglas county, to make a report, under oath, of the fees received by him as such clerk during the quarter ending on the first Tuesday of January, 1900. The question for decision is the validity of an act of the last legislature amending section 3, c. 28, Comp. St. 1899. The original act on the subject of fees was adopted in 1865 under the title “An act to regulate the salaries and fees of certain officers in the territory of Nebraska.” The first section declared then, as it declares now, that “the salaries and fees of the several officers hereinafter named shall be as follows.” Originally, the third section did nothing more than fix the charges and compensation of the clerk of the district court for official services. But in 1899 there was ingrafted upon this section the following amendment: “If the fees of said clerk shall exceed sixteen hundred ($1,600) dollars per annum in counties having less than twenty-five thousand inhabitants, or if the fees shall exceed three thousand ($3,000) dollars per annum in counties having more than twenty-five thousand inhabitants and less than fifty thousand inhabitants, or if the fees shall exceed thirty-five hundred ($3,500) dollars per annum, in counties having more than fifty thousand inhabitants and less than one hundred thousand inhabitants, or if the fees shall exceed five thousand ($5,000) dollars per annum, in counties having more than one hundred thousand inhabitants, said district clerk shall pay such excess into the treasury of the county in which he holds his office. Provided also that the clerk of the district court of each county shall on the first Tuesday of January, April, July and October of each year make a report to the board of county commissioners under oath showing the different items of fees received, from whom, at what time and for what service, and the total amount of fees received by such officer since the last report, and also the amount received for the current year. Provided further that if the county board of commissioners think necessary, said clerk may be allowed one deputy at a compensation not to exceed one half that allowed his principal; and such other assistants at such a compensation and for such time as aforesaid board may allow, and that none of the said clerks, deputies or assistants shall receive any other compensation than that accruing to their office.” Counsel for respondent concede that their client is within the provisions of the foregoing amendment, and that he must, if the act is valid, render to the county board of Douglas county a sworn statement of the fees which he received during the last quarter of 1899. It is, however, insisted with great earnestness and confidence that the act is of no validity, because, in its adoption, the legislature disregarded certain mandatory provisions of the organic law.

The first two objections to the statute may be considered together. They are: (1) That the journal of the house of representatives does not show the concurrence of that body in a certain senate amendment which became a part of the enrolled bill; and (2) that, upon the final passage of the bill in the house, the yeas and nays were not entered upon the journal as required by section 10 of article 3 of the constitution. There is some contrariety of judicial opinion touching the power of the courts to annul a statute for a failure on the part of the legislature to evidenceits proceedings in the manner prescribed by the constitution, and the adjudged cases are almost evenly divided as to what constitutes the best evidence of the statutory law. Some courts--among them the supreme court of the United States--hold that the enrolled bill on file in the office of the secretary of state, bearing the certificate of the presiding officers of the two branches of the legislature and the approval of the governor, imports absolute verity, and precludes any inquiry into the procedure by which it was adopted. Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294;Cable Co. v. Attorney General, 46 N. J. Eq. 270, 19 Atl. 733;Sherman v. Story, 30 Cal. 256;Weeks v. Smith, 81 Me. 538, 18 Atl. 325; Ex parte Wren, 63 Miss. 512;State v. Glenn, 18 Nev. 34, 1 Pac. 186;People v. Commissioners of Highways of Town of Marlborough, 54 N. Y. 276;Williams v. Taylor, 83 Tex. 667, 19 S. W. 156. The rule in other jurisdictions is that the enrollment, authentication, and approval of a bill found in the proper repository are only prima facie evidence of its due enactment; and that the legislative journals, if properly kept, contain the authentic history of the measure. Henderson v. State, 94 Ala. 95, 10 South. 332;People v. Loewenthal, 93 Ill. 191; State v. Francis, 26 Kan. 724; People v. Mahaney, 13 Mich. 481; Osburn v. Sraley, 5 W. Va. 85; Meracle v. Down, 64 Wis. 323, 25 N. W. 412;State v. Platt, 2 S. C. 150. While there is much reason for holding that a knowledge of the legislative journals should not be essential to a knowledge of the written law, this court is now too firmly committed to the doctrine of the cases last cited to justify us in accepting the certificates of the legislature as conclusive evidence that it has performed its constitutional duty. State v. McLelland, 18 Neb. 236, 25 N. W. 77; Same v. Robinson, 20 Neb. 96, 29 N. W. 246; Same v. Moore, 37 Neb. 13, 55 N. W. 299;In re Granger, 56 Neb. 260, 76 N. W. 588;Webster v. City of Hastings, 56 Neb. 669, 77 N. W. 1201;State v. Abbott, 59 Neb. 106, 80 N. W. 499;Webster v. City of Hastings, 59 Neb. 563, 81 N. W. 510. These cases hold that the records of the lawmaking body may be looked into for the purpose of ascertaining whether a statute has been constitutionally enacted; but they do not decide, or give countenance to the claim, that the silence of the journals, or either of them, is conclusive evidence of the nonexistence of any fact which ought to be recorded therein. 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. (Ala.) 24 South. 516, cited in State v. Abbott, supra, 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 ...