State v. Jones

• Decision Date: 05 June 1893
• Citation: 6 Wash. 452,34 P. 201
• Court: Washington Supreme Court
• Parties: STATE EX REL. REED v. JONES, ATTORNEY GENERAL.

34 P. 201

6 Wash. 452

STATE EX REL. REED v. JONES, ATTORNEY GENERAL.

Supreme Court of Washington

June 5, 1893

Mandamus on the relation of T. M. Reed against W. C. Jones, attorney general. Writ granted.

Roger S. Greene and John W. Corson, for relator.

W. C Jones, in pro. per.

HOYT, J.

Respondent as attorney general, was charged by an act of the legislature, or what purports to be such, with the duty of approving the bond of the relator as one of the board of state land commissioners provided for by said act. This duty he refused to perform, on the ground that what purported to be the act of the legislature was not in fact such, for the reason that the constitutional requirements had not been observed by the legislature in its passage. This proceeding is brought on the part of the relator to compel such action by respondent.

There is a line of authorities which we might follow and dispose of this case without at all entering into the question as to whether or not in fact said purported act of the legislature should have force as such; but in view of the great importance of a prompt determination of the question as to whether or not said purported act is in force, and of the further fact that the elaborate briefs filed upon the part of the respective parties will enable the court to as intelligently determine that question in this proceeding as in any other, we have concluded that our duty to the parties and to the public will be best performed by disregarding all preliminary questions which might be raised, and determining the rights of the parties upon the broad ground, upon which it has been largely argued, as to whether or not such purported act is in fact a part of the statute law of this state.

It is claimed on the part of the respondent that it cannot have such force, by reason of the fact that the legislature has not complied with the constitutional requirements by which a certain subject-matter can be enacted into a law. It is not contended but that the enrolled bill on file in the office of the secretary of state is in all respects regular upon its face, and bears the signatures of the presiding officers of the respective houses of the legislature in due form, and has been regularly approved by the governor, and deposited in said office, as required by the provisions of the constitution in that regard; but it is claimed that an examination of the journals of the respective houses will show that the legislature disregarded several mandatory provisions of the constitution which it was incumbent upon them to observe before any bill could become a law. The argument upon what is shown by the journal, and the effect thereof, has been elaborate and full; and the publicity which has been thereby given to the manner in which such journals have been kept, and the want of care exercised by the legislature in seeing that a compliance with constitutional provisions is made to appear therein, cannot but be beneficial, whatever may be the effect thereof in the decision of the question now before the court.

Preliminary to entering upon the question thus argued, we must decide another question, which, if determined adversely to the position of the respondent, will make it improper for us to enter at all upon the discussion as to the effect of the journal entries above referred to. This is as to the effect to be given to the enrolled bill on file in the office of the secretary of state. It is claimed on the part of the relator that such enrolled bill is absolutely conclusive of the fact that it had been regularly enacted into a law by the legislature, and, if this be true, it is of course immaterial as to what the journals or any other proof may or may not show upon this subject. As to just what force the respondent is willing to concede to such enrolled bill is not entirely clear from his argument, though it may probably be fairly deduced therefrom that he is willing to concede that it prima facie establishes the fact of the regularity of its passage through the legislature, but that such prima facie proof is overcome whenever there is a suggestion to the court that the journal or other competent proof shows that some constitutional requirement has not been complied with that, upon such suggestion, the courts must take judicial notice of what the journals show in that regard, and, if it appear to the court therefrom that there has been such violation of constitutional requirements, it must be held that the enrolled bill is not in force as a law. That this is the position of the respondent seems certain from the line of authorities which he has cited to sustain it, as nearly or quite all of them hold that such prima facie presumption attaches to the enrolled bill. If this is not his position then it must be that the enrolled bill is proof of nothing and that in every case the courts and all the inhabitants of the state must take notice of the course of the legislature as to every step relating to the passage of a bill, so far as such steps are made obligatory upon the legislature by the constitution. If the courts were to hold with this latter contention, it would lead to such results as to almost justify revolution on the part of the people. With such a construction once sanctioned by the courts, it would follow that, in however good faith an individual or an officer might act in view of the law as it appeared in the enrolled bill, such seeming law or such good faith could in no manner protect him from the result of his acts if in fact the journals failed to show that the act had been regularly passed by the legislature. Hence a person might, while supposing that he was acting directly in accordance with the laws of the state, be in fact committing a crime, and an officer who should venture to pay out money in pursuance of what thus seemed to be the law could be called upon to account for the same as having been paid out in violation of all law if in fact such seeming law had not been constitutionally passed, as shown by the legislative journals. That such must be the result if the signing by the presiding officers and the approval by the governor are to be considered only as steps in the act of making the bill a law, and not in themselves proof of such fact, seems clear under well-settled rules relating to construction. If such signing and approval are only steps, then the fact that they have been taken in no manner proves that any other required step has been taken, and it must follow that, before the courts can find that the bill has become a law, they must look and see that all the steps required by the constitution to constitute it such have been observed by the legislature. Such a construction given to the enrolled act would render it practically impossible for the courts even to determine what was the law, and would render it absolutely impossible for the average citizen to ascertain that of which he must at his peril take notice. There is enough injustice in requiring the citizen to take notice of the statute law when to do so he has only to determine the legal effect of the enrolled acts on file in the office of the secretary of state, and, if he is further required to take notice of all that is shown by the journals of the legislature which may affect the regularity with which such acts have been passed, he will indeed be in a sorry condition. The absolutely disastrous result of this construction has led the courts which have held that they could go behind the enrolled act to adopt the theory, which seems to us to be entirely illogical, that the enrolled acts prima facie, but not conclusively, establish the fact of their regular enactment. Such holding compels the further one that, whenever the attention of the courts is directed to the particular parts of the journal which show a want of compliance with constitutional requirements, the courts must take judicial notice of all facts therein contained in relation to the point to which their attention has thus been called, and, if such journals show any want of compliance with the mandates of the constitution, declare such prima facie presumption overcome, and the law invalid. The result of this construction will lead to results as disastrous and embarrassing as would the other construction of which we have been speaking. For a number of years after the passage of an act it may be given force by the courts, by reason of the prima facie presumption flowing from the finding of the act regularly enrolled and signed in the office of the secretary of state. Then, after said act, to all intents and purposes, has been treated as in force during all of these years, upon the suggestion of some person that there was a fatal omission in the journal entries regarding the passage thereof, the court must take judicial notice of such fact, if shown by the journal, and from that time on it must be held, not only that such bill was not then a law, but that it never had been such. The confusion as to rights and duties growing out of such a state of uncertainty as to what the statute law of the state is may well appall one who even superficially contemplates the same. Worse than this may happen, however. The suggestion as to the invalidity of the law may be made to one superior court in the state, and from that moment such court must hold the law invalid if the journal shows any constitutional irregularity in its passage; while in another superior court said act will still be given full force as a law, by reason of the fact that no suggestion has been made which will authorize the court to go behind the prima facie presumption flowing from the enrolled bill. If, from the enrolled bill on file, it can be conclusively presumed that it has been regularly enacted by the legislature, none...