State ex rel. Herron v. Smith

• Decision Date: 29 June 1886
• Citation: 44 Ohio St. 348,7 N.E. 447
• Parties: STATE ex rel. HERRON and others v. SMITH and others.[1]
• Court: Ohio Supreme Court

7 N.E. 447

44 Ohio St. 348

STATE ex rel. HERRON and others v. SMITH and others.^[1]

Supreme Court of Ohio.

June 29, 1886

Quo warranto . The facts are stated in the opinion.

OWEN C. J., and FOLLETT, J., dissenting.

John F. Follett, Isaac M. Jordan , and W. W. Boynton , for plaintiffs.

J. A. Kohler , Atty. Gen., J. W. Warrington , and Thos. McDougall , for defendants.

MINSHALL J.

On May 17, 1886, the general assembly passed an act entitled ‘ An act to establish an efficient board of public affairs in cities of the first grade of the first class.’ 83 Ohio L. 173. It abolished the board of public works created by an act passed March 3, 1880, and, among other things, provided that the members of the board of public affairs should be appointed by the governor, and should have all the powers perform all the duties, and be the successors of the board of public works. The members of the board of public affairs for the city of Cincinnati, the respondents in this action, were appointed by the governor, qualified as required by law, entered upon the duties of their board, and the performance of the same as far as they were permitted by the relators, and were continuing to do so, whereupon the relators, who constituted the board of public works of said city at the time of the passage of the act of May 17th, commenced this proceeding, setting forth their title as members of the board of public works for the city of Cincinnati, and asking that the respondents should be required to show by what title they usurped the functions of the board of the relators, and that they might be ousted therefrom by the judgment of this court.

The respondents in their answer admit that they have assumed, and claim the right to perform, the public duties that were heretofore incumbent on the relators as the board of public works of Cincinnati, but say that the act that created the board of the relators was repealed by the act of May 17, 1886, creating the board of the respondents, and that thereby the board of public works was abolished, and that the board of public affairs was made and became its successor, and that the performance of all its powers and duties was conferred on the board of the respondents; and ask that the relators be restrained from interfering with them in the performance of their duties as such board of public affairs.

The relators reply, and, in the first, second, third, and fourth paragraphs of the pleading, in substance deny (1) that the act creating the board of the respondents was on the seventeenth of May, 1886, or at any other time, passed by the general assembly of the state, or that it ever became a law of the state; and (2) aver that, if it was passed, the legislature had no power to confer the appointment of the board on the governor, and that it is unconstitutional and void. In the fifth and last paragraph it is, in substance, averred that the adoption of the act of May 17th was the result of a conspiracy between the president of the senate and 17 members, entered into for the purpose, among other things, of abolishing the board of public works, and establishing, in the language of the pleading, ‘ the so-called board of public affairs; ’ that in pursuance of this conspiracy, while John O'Neill and 19 other members of the senate were absent from the senate chamber, and while only 17 members, less than a quorum, were present, the president of the senate, with the advice and consent of the 17 members then present, in violation of the constitution of the state and rules of the senate, corruptly caused the clerk of the senate to enter upon its journal a resolution that John Brashears and three others, naming them, were not duly elected, and that George W. Hardacre and three others, naming them, were duly elected, and entitled to seats therein; that the vote was not taken by years and nays, and that the majority of the members were at that time temporarily absent from the state; that afterwards, without being sworn, the four so admitted claimed to be members of the senate, and on the seventeenth of May, during the continued absence of the members before named from the state of Ohio, the said pretended act of May 17, 1886, was declared passed, and signed by the president of the senate; and it is then averred ‘ that the president of the senate, the speaker of the house of representatives, and the secretary of state, at the time of the signing and filing of said pretended act of the general assembly of the state of Ohio, well knew that the same had not been passed, but that the same was fraudulent and void; ’ and that there was at no time from the eighth of May until the adjournment of the legislature a quorum of duly-elected members present in the senate to do business.

A demurrer has been interposed to the first four paragraphs, and a motion made to strike out the averments contained in the fifth one. The demurrer raises the question of the constitutionality of the law, and the motion, the validity of its passage.

1. If the facts averred in the motion may be considered by a court on the question whether a statute that appears upon the journals of both houses of the legislature to have received the requisite concurrence of their members, as provided in section 9, art. 2, of the constitution, that is duly attested as a law by the presiding officer of each house, as provided in section 17, art. 2, of the same instrument, and has been enrolled and filed in the office of the secretary of state as a law, as provided by statute, (section 128, Rev. St.,) is not what it is thus authenticated to be, then this motion should be sustained; otherwise it should be overruled.

It seems to be well settled that courts will take judicial notice of all that is necessary to the authentication of a statute. It is said by Wharton, in his work on Evidence, (volume 2, § 295:)

‘ Courts will take judicial notice of the modes by which domestic laws are authenticated. Hence an English court is supposed to be judicially acquainted with the rules, practice, and prerogatives of parliament; an American court with the rules, practice, and prerogatives of the federal and state legislatures to which it is subject. So, as we have seen, a court will take judicial notice of the journals of a legislature to determine whether an act is constitutionally passed, or whether it has passed by reason of not having been returned in proper time by the governor.’

There is, then, no need of stating what appears upon the journals of a legislature relative to the passage of a law; such matters are judicially noticed without averment, and the same effect given them as if averred. Bliss, Code Pl. 188. As no issue of fact can be taken upon what a court is required as a court to know, such averments in a pleading are redundant and irrelevant, and on motion should be stricken out. Pom. Rem. § 551. Therefore, unless courts may hear parol testimony offered to affect the passage of a duly-authenticated statute, the matter contained in the fifth paragraph of the reply should be stricken out as redundant and irrelevant; as it appears from the journals of the two houses of the general assembly that this act received the requisite concurrence of the members, and was duly attested by the presiding officer of each house, and it has also been duly enrolled and filed in the office of the secretary of state, and published in the Laws of Ohio.

Counsel have exhibited unusual industry in looking up the various cases upon this question; and out of a multitude of citations not one is found in which any court has assumed to go beyond the proceedings of the legislature, as recorded in the journals required to be kept in each of its branches, on the question whether a law had been adopted; and, if reasons for this limitation upon judicial inquiry in such matters have not generally been stated, it doubtless arises from the fact that they are apparent. Public policy requires that the authenticity of laws should rest upon public memorials of the most permanent character. They should be public, because all are required to conform to them. They should be permanent, that rights acquired to-day upon the faith of what has been declared to be law shall not be destroyed to-morrow, or at some remote period of time, by facts resting only in the memory of individuals.

One of the earliest cases on the subject was that of The King v. Arundel , Hob. 109. It involved the question whether a private statute had been enacted. The court there held that the act could only be tried by itself,-its enrollment in the chancery; the chancery being then, as the office of secretary of state is with us, the depository of the laws. The court said, ‘ When the act is passed, the journal is expired.’ Many cases follow this decision, adopting the attested enrollment of the law as conclusive on the question of its passage. Pangborn v. Young , 32 N. J. Law, 29, is an instructive case on the reason and policy of the rule. See, also, People v. Devlin , 33 N.Y. 269; People v. Highway Com'rs , 54 N.Y. 276; Eld v. Gorham , 20 Conn. 8; Sherman v. Story , 30 Cal. 253; Lottery Co. v. Richoux , 23 La. Ann. 743; State v. Swift , 10 Nev. 176; Speer v. Plank-road Co. , 22 Pa. St. 376.

But in many of the states, and without doubt in our own, the journals are to be regarded. They are required by the constitution to be kept. The language is:

‘ Each house shall keep a correct journal of its proceedings, which shall be published; * * * and on the passage of any bill the vote shall be taken by years and nays, and entered upon the journal; and no law shall be passed in ether house without the concurrence of a majority of all the members elected thereto.’ Section 9, art. 2.

Now, in the time of Hobart, the journals were not...