State v. Abbott

• Decision Date: 18 October 1899
• Docket Number: 10,850
• Citation: 80 N.W. 499,59 Neb. 106
• Parties: STATE OF NEBRASKA v. L. J. ABBOTT
• Court: Nebraska Supreme Court

80 N.W. 499

59 Neb. 106

STATE OF NEBRASKA v. L. J. ABBOTT

No. 10,850

Supreme Court of Nebraska

October 18, 1899

ERROR from the district court of Lancaster county. Tried below before HOLMES, J. Affirmed.

AFFIRMED.

Silas A. Holcomb and W. B. Price, for the state:

The enrolled bill is only prima facie evidence of the enactment of a law. Records of legislative proceedings may be introduced in evidence to show that a statute was not enacted according to constitutional methods. See State v McClelland, 18 Neb. 238; Nesbit v. People, 36 Pac. [Colo.], 221; Supervisors v. Heenan, 2 Minn 281; Field v. Clark, 143 U.S. 649; Purdy v People, 4 Hill [N.Y.], 384; Leonard v. Southern P. R. Co. 21 Ore. 560; State v. Platt, 2 So. Car. n. s. 150; City of Watertown v. Cady, 20 Wis. 528; Meracle v. Down, 64 Wis. 323; State v. Swan, 40 L. R. A. [Wyo.], 195; Gardner v. Collector, 6 Wall. [U.S.], 499; State v. Robinson, 20 Neb. 96; In re Groff, 21 Neb. 647; State v. Moore, 37 Neb. 13; In re Granger, 56 Neb. 260; Webster v. City of Hastings, 56 Neb. 669; Jones v. Hutchinson, 43 Ala. 721; Moody v. State, 48 Ala. 115; Chicot County v. Davies, 40 Ark. 200; Glidewell v. Martin, 51 Ark. 559; Fowler v. Peirce, 2 Cal. 195; People v. Dunn, 80 Cal. 211; Spangler v. Jacoby, 14 Ill. 297; Hollingsworth v. Thompson, 12 So. [Ala.], 1; Berry v. Baltimore & D. P. R. Co. 41 Md. 446; Legg v. Mayor, 42 Md. 220; Strauss v. Heiss, 48 Md. 292; Rode v. Phelps, 80 Mich. 598; People v. Burch, 84 Mich. 408; State v. Mead, 71 Mo. 266; Opinions of Justices, 35 N.H. 579; De Bow v. People, 1 Denio [N.Y.], 9.

A. S. Tibbets and Ed P. Smith, contra:

References: United States v. Ballin, 144 U.S. 1; People v. McElroy, 72 Mich. 450; Attorney General v. Rice, 64 Mich. 385; In re Granger, 56 Neb. 260; People v. Board of Police, 75 N.Y. 38; People v. French, 91 N.Y. 260; Kehn v. State, 93 N.Y. 291; Hawkeye Ins. Co. v. Brainard, 72 Ia. 130; Hoffman v. Chippewa County, 77 Wis. 214.

HARRISON, C. J. NORVAL, J. dissenting.

OPINION

The facts are stated in the opinion.

HARRISON, C. J.

The defendant in error, prior to April 1, 1897, became by appointment superintendent of the hospital for the insane at Lincoln, and during the time he was such officer, anterior to the date mentioned, he drew his salary in accordance with its amount as fixed by law (see Compiled Statutes, ch. 40, sec 58), and appropriated by the legislature of 1895, at the rate of $ 2,500 per annum. During the two years from the said date he collected salary as if established at $ 2,000 per year, but at or after the expiration of the two years he filed with the auditor of public accounts a claim for what he asserted, and now contends, was the balance due him, $ 1,000, or $ 500 for each year. His claim was disallowed by the auditor, but on appeal to the district court of Lancaster county, as the result of a trial, the order of the auditor was reversed and a judgment entered in favor of the claimant. The state presents the case to this court for review. It is the contention for the state that by the general salary act, or House Roll 615, passed by the legislature of 1897, there was appropriated for the payment of the salary of the superintendent of the hospital for the insane at Lincoln $ 2,000 per year, or $ 4,000 for the biennium, while for the defendant in error it is asserted that the appropriation was $ 2,500 for each year, and $ 5,000 for the two. It is claimed for the state that in the original bill, as introduced in the house of representatives, the amounts were $ 2,500 per year and $ 5,000 for the two years; that the bill was so amended in the house as to read $ 2,000 instead of $ 2,500, and $ 4,000 in place of $ 5,000. The enrolled bill which was signed by the officers of the senate and house, and presented to and approved by the governor, and filed in the office of the secretary of state, a certified copy of which was introduced in evidence, disclosed the items of appropriation in question as $ 2,500 for each year and $ 5,000 for the biennial period. This raised a presumption, or established prima facie, that the sums appropriated to pay the superintendent of the hospital for the insane at Lincoln during the two years were as claimed by the defendant in error, and that both houses of the legislature had so fixed them by the bill or act. The state introduced in evidence the original bill, House Roll 615, or what was in the office of the secretary of state, and was offered as such bill or roll, and as received there were with it in each instance, pinned on the face of one of the pages of the bill, what purported to be amendments of it. There were several of these. Some of them had on them, in blue pencil marks, the word "adopted," or the word "carried," and others were not marked. One of these, which by its terms purposed to amend the portion of the bill which referred to the salary of the superintendent of the hospital for the insane at Lincoln, was attached with a pin to the face of the page of the bill on which appeared the items of appropriation for the payment of said salary, and it had on its face, in blue pencil marks, the word "adopted." There was also offered and received what it was claimed is the engrossed House Roll 615, and in this the appropriations in controversy appear as contended for by the state. All recitations of the journals of both senate and house in which there was any reference to House Roll 615 were introduced in evidence. There was also made of evidence a report to the house of a committee which had been appointed to confer with a committee of the senate in relation to senate amendments to House Roll 615. To the introduction of these matters by the state, to which we have alluded, objections were interposed for the defendant in error, and they were received each subject to the objection. The journal of the house discloses that the bill was amended and passed that body as amended, but does not give any light in regard to the substance or subject-matter of any amendment. The journal of the senate contained statements from which appeared the amendments proposed in the body, also the report of its conference committee in respect to House Roll 615, but in none of them was there any mention of the items of appropriation herein the subject of dispute. It also appeared in a journal that the bill, after agreement upon amendments and final passage, was duly presented to the governor.

In regard to what will establish a law as passed by the legislature, if the question arises, it has been stated: The decisions may be classified into those in which the enrolled bill has been deemed conclusive, and those recognizing the doctrine that courts will look back of said bill and examine and consider the journals of the legislature. See 23 Am. & Eng. Ency. Law 200. In some cases the courts of last resort have approved the reception in evidence of the engrossed bill. See 23 Am. & Eng. Ency. Law 198; Berry v. Baltimore & D. P. R. Co. 41 Md. 446; 20 Am. 69; Hollingsworth v. Thompson, 12 So. 1. In this state we have not decided the enrolled bill to be conclusive, but have examined the legislative journals. In no case up to the present has the supreme court approved the reception and consideration of anything more or further than we have just stated. See Hull v. Miller, 4 Neb. 503; Cottrell v. State, 9 Neb. 125, 1 N.W. 1008; Ballou v. Black, 17 Neb. 389, 23 N.W. 3; State v. McClelland, 18 Neb. 236, 25 N.W. 77; State v. Robinson, 20 Neb. 96, 29 N.W. 246; In re Groff, 21 Neb. 647, 33 N.W. 426; State v. Van Duyn, 24 Neb. 586, 39 N.W. 612; State v. Moore, 37 Neb. 13, 55 N.W. 299; In re Granger, 56 Neb. 260, 76 N.W. 588. In the case last cited the consideration of other evidence than the enrolled bill and the journals was in effect disapproved. On the general proposition see, also, Webster v. City of Hastings, 56 Neb. 245. In Ames v. Union P. R. Co. 64 F. 165, in the determination of whether an act of the legislature of this state had been so passed as to become a law, after reference to sections 8, 10 and 11, article 3, of our constitution, and in the body of the opinion to several of the decisions of this court on the subject, it was stated: "Held, that the most such constitution authorizes is that, in respect to certain matters, evidence may be sought in the journals of the two houses, which will prevail over that which appears on the enrolled bill as found in the secretary of state's office. * * * Parol testimony is not admissible to impeach the validity of an act which is shown by the record to have been duly and legally passed." In Ex parte Howard-Harrison Iron Co. 24 So. 516, there was presented a question similar to the one in the case at bar. It was observed in the body of the opinion: "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. And this must be shown by the journals of the two houses. No other evidence is admissible. The journals can neither be contradicted nor amplified by loose memoranda made by the clerical officers of the houses. To these the courts can not look for any purpose." In the syllabus: "The journals of both houses of the legislature are the only evidence admissible to show that amendments to a bill were adopted by one branch and not concurred in by the other, and that the bill as signed by the governor was not the bill passed."

We will now turn to some of the provisions of the...