State ex rel. Hynds v. Cahill

• Citation: 75 P. 433,12 Wyo. 225
• Parties: STATE EX REL. HYNDS v. CAHILL, COUNTY CLERK, ET AL
• Decision Date: 18 February 1904
• Court: United States State Supreme Court of Wyoming

75 P. 433

12 Wyo. 225

STATE EX REL. HYNDS v. CAHILL, COUNTY CLERK, ET AL

Supreme Court of Wyoming

February 18, 1904

RESERVED questions from the District Court, Laramie County HON. RICHARD H. SCOTT, Judge.

The material facts, and the questions reserved for the decision of the court, are stated in the opinion.

Charles W. Burdick, for the relator.

It is competent and is the duty of courts to consult legislative journals in reference to matter which the constitution expressly requires to be recorded therein, concerning the procedure prescribed by the constitution for the passage of an act, and the journals may be used to impeach the enrolled act. (Brown v. Nash, 1 Wyo., 85; State v. Swan 7 Wyo., 166.) The journals imply verity; and are the bound volumes deposited with the Secretary of State and cannot be impeached either by parol evidence, entry of later date, or the minutes or memoranda sheets kept by the legislative clerk. (23 Ency. of Law, 193; Black's Const Law, 60, 225; State v. Buckley, 54 Ala. 613; Montgomery B. B. Works v. Gastin, 126 Ala. 425; State v. Smith, 44 O. St., 348; Ex parte Iron Co. 119 Ala. 484; State v. Abbott, 59 Neb. 106; Webster v. Hastings, 59 Neb. 563; Commissioners v. Snuggs, 121 N. C., 394; Koehler v. Hill, 60 Ia. 560; Hughes v. Felton, 11 Colo. 489; Div. of Howard Co., 15 Kan. 194; In re Granger, 56 Neb. 260; Cohn v. Kingsley, 38 L. R. A., 74; Auditor Gen'l v. Board, 89 Mich. 593; Attorney General v. Rice, 64 Mich. 385; Sackrider v. Supervisors, 79 Mich. 59; R. Co. v. Hughes, 38 Ill. 186; Shappel v. Brethauer, 70 Ill. 166; McCullough v. State, 11 Ind. 427; Wise v. Bigger, 79 Va. 269; State v. Moffatt, 5 O., 359; Fordyce v. Godman, 20 O. St., 1; State v. Francis, 26 Kan. 724; Commissioners v. De Rossett, 129 N. C., 275; State v. Mason, 43 La. Ann., 776; Burkhart v. Reed, 2 Ida., 470; White v. Hinton, 3 Wyo. 754.)

Upon authority I consider all constitutional requirements mandatory, but subject to classification into three grades or degrees: (a) Those containing express words of prohibition, such as: "No bill shall become a law except by vote of a majority of the members elected to each house," etc. (Art. 3, Sec. 25, Const. of Wyo.) (b) Those not containing prohibitory words, but containing words of imperative and exclusive significance, such as: "And the fact of signing shall be at once entered upon the journal," (Art. 3, Sec. 28), and "The enacting clause of every bill shall be as follows," etc. (Art. 3, Sec. 21). (c) Those containing neither words of prohibition nor words of exclusive significance, but simply containing the positive mandate shall and sometimes coupled with provisional or optional performance, but none the less mandatory, such as: "Each house shall keep a journal" (Art. 3, Sec. 13), and "The sessions of each house shall be open unless the business is such as requires secrecy" (Art. 3, Sec. 14), and "Neither house shall, without the consent of the other, adjourn," etc. (Art. 3, Sec. 15).

Of the requirements under consideration, Section 23, Article 3, comes within the first and Section 28, Article 3, within the second classification.

Without exception the courts and text writers have considered such requirements as those within the first classification mandatory.

As to those of the second and third classifications, all the text writers and a great majority of courts so regard them.

While the classification above made is arbitrary, still it appears reasonable and in harmony with the language used, and if a provision of the third grade is mandatory, surely those of the second containing more imperative words must be regarded in the same light.

Upon authority, however, all requirements are mandatory, and in this view the text writers without exception agree. (Potter's Dwarris Statutes, 665; Endlich Int. Stat., 433; Story on Const., 426; Black's Const. Law, 70; Suth. on Stat. Const., 41; Cooley Con. Lim., 93, 168, 179, 180.)

Among the courts of the several states there is not the same unanimity as among text writers, and the courts of a few states have undertaken to declare some constitutional requirements directory, but the decisions to this effect in these states are not supported by authority, have not been generally followed by other states, and in some cases, if not directly, are at least inferentially disapproved by later cases in the particular states where rendered, while on the other hand the highest courts of no less than twenty-seven states have declared that all constitutional requirements are mandatory and must be literally complied with by the Legislature in the enactment of laws. To this effect are the following cases:

Ala. --Bridge Co. v. Olmstead, 41 Ala. 9; Weaver v. Lapsley, 43 Ala. 229; State v. Buckley, 54 Ala. 599; Moog v. Randolph, 77 Ala. 597; O'Hara v. State, 121 Ala. 28.

Ark. --Vincent v. Knox, 27 Ark. 266; Smithee v. Garth, 33 Ark. , 17.

Cal. --Railroad Tax Cases, 8 Sawy., 238; Paving Co. v. Hilton, 69 Cal. 479.

Colo. --In re House Bill, 26 Colo. 234.

Fla. --In re Advisory Opinion, 31 So. 348.

Ga. --Protho v. Orr, 12 Ga. 36; Harper v. Elberton, 23 Ga. 566.

Id. --Cohn v. Kingsley, 38 L. R. A., 74; Brown v. Collister, 51 P. 417.

Ill. --People v. Campbell, 3 Gilm., 466; Spangler v. Jacoby, 14 Ill. 297; Turley v. Logan, 17 Ill. 151; People v. Starne, 35 Ill. 121; R. Co. v. Hughes, 38 Ill. 174; People v. DeWolfe, 62 Ill. 253; Ryan v. Lynch, 68 Ill. 161; People v. Commissioners, 120 Ill. 322.

Ind. --Commissioners v. Baker, 88 Ind. 374; May v. Rice, 91 Ind. 546.

Iowa--Koehler v. Hill, 60 Ia. 543.

Ky. --Varney v. Justice, 86 Ky. 596; Norman v. Board, 93 Ky. 537.

La. --Walker v. Colwell, 4 La. Ann., 297.

Minn. --Board v. Heenan, 2 Minn. 330; Lincoln v. Haugen, 45 Minn. 451; Sjoberg v. Loan Assn., 73 Minn. 203.

Mich. --Steckert v. City, 22 Mich. 104; Sackrider v. Supervisors, 79 Mich. 59; Attorney General v. R. R. Co., 97 Mich. 589; People v. Dettenthaler, 77 N. W., 450; Fillmore v. Van Horn, 88 N. W., 69.

Mo. --State v. Miller, 45 Mo. 496.

Mont. --State v. Tooker, 15 Mont. 8; Durfee v. Harper, 22 Mont. 354.

Nev. --State v. Rogers, 10 Nev. 250; State v. Tufley, 19 Nev. 391; State v. Howell, 64 P. 466.

N. Y. --Thomas v. Dakin, 22 Wend., 9; Purdy v. People, 4 Hill, 382; Debow v. People, 1 Denio, 9; People v. Lawrence, 36 Barb., 177; People v. Hills, 35 N.Y. 449; Bank v. Sparrow, 2 Denio, 97; People v. Allen, 44 N.Y. 379; People v. Commissioners, 54 N.Y. 276; Rumsey v. R. R. Co., 130 N.Y. 88.

N. C. --Trustees v. McIver, 72 N. C., 76; Scarborough v. Robinson, 81 N. C., 409; State v. Patterson, 98 N. C., 660; Bank v. Commissioners, 119 N. C., 214; Board v. Smuggs, 121 N. C., 394; Rodman v. Town, 122 N. C., 39; Coler v. Board, 89 F. 257; Board v. Call, 123 N. C., 311; McGuire v. Williams, 123 N. C., 349; Smathers v. Commissioners, 125 N. C., 480; Glenn v. Ray, 126 N. C., 730; Debnam v. Chitty, 43 S. E., 3; Black v. Commissioners, 129 N. C., 121; Commissioners v. De Rossett, 129 N. C., 275.

Neb. --Smailes v. White, 4 Neb. 356; Howell v. State, 4 Neb., 503; Ryan v. State, 5 Neb., 276; Sovereign v. State, 7 Neb., 407; Lancaster v. Hoagland, 8 Neb., 38; South Omaha v. League, 42 Neb. 671; State v. Cobb, 44 Neb. 434; State v. Tibbetts, 53 Neb. 228; Webster v. Hastings, 59 Neb. 563; R. R. Co. v. Smythe, 103 F. 376; State v. R. R. Co., 60 Neb. 741; Simpson v. U. S. Y. Co., 110 F. 799.

Ore. --Currie v. So. Pac. Co., 21 Ore., 566.

S. C. --State v. Platt, 2 S. C., 150; Bond Debt Cases, 12 S. C., 200; State v. Haygood, 13 S. C., 46.

Tenn. --Cannon v. Mathes, 8 Heisk., 504; Brewer v. Mayor, 86 Tenn. 732; State v. Algood, 87 Tenn. 163.

Tex. --Cannon v. Hemphill, 7 Tex. 208; City v. Gould, 34 Tex. 49; Cox v. State, 8 Tex., 254; Holly v. State, 14 Tex. App., 505; Hunt v. State, 22 Tex. App., 396.

U. S. --South Ottawa v. Perkins, 94 U.S. 260; Post v. Supervisors, 105 U.S. 667.

Utah--Richie v. Richards, 14 Utah 345.

Wash. --State v. Superior Court, 68 P. 957.

Wis. --Dirkey v. Janesville, 26 Wis. 697; McDonald v. State, 80 Wis. 407.

The foregoing certainly indicates an overwhelming weight of authority to the effect that all constitutional requirements are mandatory, but it has been suggested, and that view will doubtless be presented for the consideration of this court, that constitutional requirements are merely directory unless preceded by words of prohibition. To this effect are a few cases in which a distinction is drawn between those requirements preceded by express words of prohibition and those lacking such words, viz: People v. Supervisors, 8 N. Y., 317; State v. Mead, 71 Mo. 266; In re Roberts, 5 Colo. 525.

A very few cases attempt a distinction between that class of requirements relating to matters of procedure and the exercise of legislative power or authority, but this distinction has not been approved generally and is not supported by reason or authority; on the other hand, many jurists have held that constitutional requirements prescribing a journal entry in relation to legislative procedure attain the grade and dignity of legislative power for the reason that from compliance with them and in that manner only can the courts or the people determine whether the constitution has been obeyed. (Miller v. State, 3 O. St., 476; Hominghausen v. Knoche, 58 Kan. 64; State v. Long, 21 Mont. 26.)

The process of legislation does not cease until the enrolled act has finally received the approval of the executive or has been passed over his veto, or has become a law by virtue of the expiration of the time limited for its return to the Legislature. (Jones v. Hutchinson, 43 Ala. 71; Logan v. State, 3 Heisk., 442; Hall v. Miller, 4 Neb., 503; Memphis v. United States, 97 U.S 293; Endlich Int. of Stat., 543; Fowler v....