State ex rel. McClay v. Mickey

• Decision Date: 22 February 1905
• Docket Number: 13,408
• Citation: 102 N.W. 679,73 Neb. 281
• Parties: STATE, EX REL. JOHN M. MCCLAY, RELATOR, v. JOHN H. MICKEY, GOVERNOR, RESPONDENT
• Court: Nebraska Supreme Court

102 N.W. 679

73 Neb. 281

STATE, EX REL. JOHN M. MCCLAY, RELATOR, v. JOHN H. MICKEY, GOVERNOR, RESPONDENT

No. 13,408

Supreme Court of Nebraska

February 22, 1905

ORIGINAL application for a writ of mandamus to compel respondent to appoint commissioners to select site for monument. Writ denied.

WRIT DENIED.

A. W Lane, for relator.

Frank N. Prout, Attorney General, and Norris Brown, contra.

OPINION

HOLCOMB, C. J.

A writ of mandamus is applied for to require the respondent, the governor, to appoint a commission of five persons whose duty it shall be to supervise the selection of a site on the capitol grounds and the erection of a monument to be dedicated to the memory of the life and public services of President Lincoln. The application is based on what purports to be an act of the legislature which is carried into the laws of 1903, and published as chapter 157 thereof. The governor, we are advised, declines to act through no lack of sympathy for the object sought to be attained, but because of a doubt as to the validity of the law which must be looked to for authority to proceed. The right to the writ prayed for depends, therefore, upon the validity of the enactment referred to. The following certificate made by the secretary of state is found at the close of the printed laws passed by the legislature at its 28th session. Laws 1903, p. 747.

"All of the foregoing laws (except as otherwise noted in connection with the same) are signed and attested as follows to wit: John H. Mockett, Jr., Speaker of the House of Representatives. Attest: John Wall, Chief Clerk of the House of Representatives. Edmund G. McGilton President of the Senate. Attest: A. R. Keim, Secretary of Senate." There is found attached to chapter 157 (house roll No. 78), the act in question, the following certificates: "I, C. H. Barnard, first assistant chief clerk of the house of representatives of the state of Nebraska, do certify that the copy of house roll No. 78, hereto attached, is a full and correct copy of said house roll No. 78 as passed by the house March 31 by a vote of 60 yeas to 12 nays; that it was transmitted to the senate on the same day, and on April 6 returned from the senate indefinitely postponed. On April 7 it was recalled from the house for further consideration and on the 8th of April transmitted to the house and passed, where, by oversight, the bill failed to be sent to the enrolling room.

"Given under my hand this 14th day of April, A. D. 1903. C. H. BARNARD,

"First Assistant Chief Clerk of the House."

"STATE OF NEBRASKA, SS:

"I, A. R. Keim, secretary of the senate of the state of Nebraska, do hereby certify that the copy of said house roll No. 78, hereto attached, is a full and correct copy of said house roll No. 78 that was read the third time on the 8th day of April, 1903, and was duly passed by the senate by a vote of 30 yeas to 2 nays, and was thereafter on the same day transmitted to the house of representatives with a certificate attached that the same had been passed by the senate.

"Given under my hand this 14th day of April, 1903.

"A. R. KEIM,

"Secretary of the Senate."

This bill appears to have been approved by the governor on April 14, 1903. An inspection of the enrolled bills in the office of the secretary of state passed by the legislature at the session mentioned discloses that the only authentication of the act under consideration is to be found in the two certificates above set forth. The bill is in nowise authenticated by the signature of either of the presiding officers nor do the names of either or any of the clerical officers of either house appear on said bill as attesting the signatures of the presiding officers. It may also be said that the measure in question does not appear to have the earmarks of being an enrolled bill, such as is customary after the final passage of an act through both branches of the legislature. It is in all probability a copy of the engrossed bill procured at the time it was certified to as above mentioned. The legislature adjourned sine die on the 8th day of April, 1903. The question presented, therefore, is whether house roll No. 78, the act in question, has been passed through both branches of the legislature, authenticated and approved with all of the formalities required to give it the force of law.

1. The only evidence of the purported law as being the measure passed by the legislature, and of its due enactment and promulgation by the legislative branch of government, is to be found in the certificates attached to the bill. To be sure, an inspection of the legislative journals discloses that an act entitled the same as the one under consideration was introduced and duly passed through each branch, with amendments; the contents of the bill and the nature of the amendments being otherwise undisclosed. The language of the body of the bill when introduced or as finally passed and after amendment is unascertainable save by resort to what purports to be the bill as finally passed, to which is attached the certificates heretofore quoted or other evidence of an extraneous character. These certificates, it will be observed, were made and attached to the purported bill after the final adjournment of the legislature. They are no part of the proceedings of either branch and are not to be found in the journals of the legislature body. They were not made by those executing them as any part of the action taken by either of said bodies. As evidence these certificates, it would seem, possess no greater value than would the sworn testimony of the parties making them. We are then brought face to face with the proposition of whether evidence outside of the enrolled bills and the legislative journals may be resorted to for the purpose of establishing that a particular bill has duly passed both branches of the legislature with all the formalities required by the fundamental law, and has been duly authenticated and promulgated so that nothing further is required save action by the executive. In many jurisdictions it is held that the enrolled bill properly authenticated by the signatures of the presiding officers of each branch of the legislature and approved by the governor is the exclusive and only evidence of the due enactment of the measure into law. In this jurisdiction it is held that the enrolled bill may be impeached by the records contained in the legislative journals; but it has not been held that resort may be had to evidence of an extraneous character to prove or disprove the validity of a legislative enactment. In the case of In re Granger, 56 Neb. 260, 76 N.W. 588, it is held:

"Where from the journals of both branches of the legislature and from the copy of the bill sent to the governor for approval and by him approved, and which was attested by the proper officers of both houses, it is shown that a certain bill was properly passed, that fact cannot be disproved by the introduction in evidence of what it is agreed between the litigants was the bill originally introduced and memoranda thereon indorsed tending to show that the bill approved and attested was not the one really passed by both houses." In the body of the opinion, quoting approvingly from a case entitled Division of Howard County, 15 Kan. 194, it is said: "It will be noticed that the legislative journals and the enrolled bills are the only records required by law to be kept for the purpose of showing any of the legislative proceedings. There is no provision for preserving the engrossed bills as a record of the legislative proceedings. And as the legislative journals and the enrolled bills are, by law, records, and the only records of legislative proceedings, they must of course import absolute verity, and be conclusive proof as to whether any particular bill has passed the legislature, when it passed, how it passed, and whether it is valid or not. * * * Now as we have before intimated, the enrolled bills and the legislative journals, being records provided for by the constitution, importing absolute verity, we cannot take judicial notice that they are untrue, nor can we even allow evidence to be introduced for the purpose of proving that they are not true. Therefore, as the enrolled bill of the law dividing Howard county, and the journals of the legislature, would seem to prove that said bill has been legally passed by the legislature, and has been legally approved by the governor in the form as it now appears enrolled in the secretary's office, we cannot take judicial notice that said bill was not properly so passed and so approved, and we cannot even allow evidence to be introduced showing that it was not so passed and so approved." Again in State v. Abbott, 59 Neb. 106, 80 N.W. 499, it is directly held: "The enrolled bill, authenticated by the proper officers of the house, approved by the governor, and filed with the secretary of state, and the journals of the houses are the official records of the proceedings of the legislature relative to the enactment of the law, and are the only competent evidence in a controversy in regard to the due passage of the bill, or in respect to alleged material errors in its substance." In the body of the opinion, the character of the evidence which may be considered in determining whether a law has been duly enacted...