State v. Robinson

• Decision Date: 30 June 1879
• Citation: 81 N.C. 409
• Court: North Carolina Supreme Court
• Parties: State, . ex rel. JOHN C. SCARBOROUGH v. JAMES L. ROBINSON and JOHN M. MORING.

81 N.C. 409

State, . ex rel. JOHN C. SCARBOROUGH

v.JAMES L. ROBINSON and JOHN M. MORING.

Supreme Court of North Carolina.

June Term, 1879.

APPLICATION for Mandamus heard at June Special Term, 1879, of WAKE Superior Court, before Eure, J.

The service of summons in this case was accepted by the defendants, and the complaint alleges substantially that on the 27th of February, 1879, a bill to be entitled an act to revise and consolidate the public school law was introduced in the house of representatives of the general assembly of North Carolina then in session, and on that day passed its first reading; and on the 6th of March, 1879, it passed its second reading by a vote taken by yeas and nays as appears from the house journal, and on the next day (7th) it passed its third reading, the vote being by yeas and nays as appears by the journal, and on the same day it was ordered to be engrossed and sent to the senate for concurrence. It was accordingly engrossed, transmitted to the senate, and passed its first reading in that body on the 8th of March, 1879; its second reading on the 11th; and its third reading on the 12th, the vote being taken by the yeas and nays as appears from the senate journal. The bill was duly enrolled and so reported by the committee on enrolled bills to each house and was announced before adjournment as having been duly ratified as appears from the journals of the two houses, and on the 15th of March, 1879, was transmitted to the office of the secretary of state, when it was discovered that it had not been signed by the presiding officers, and that the secretary of state for that reason refused to receive and receipt for said bill as an original of one of the laws of the state. That the legislature adjourned on the 14th of March, 1879, and through mistake or inadvertence neither of the presiding officers of said houses signed it as required by law, and have not since signed the same. That defendant, Robinson, was then and is now president of the senate, and defendant, Moring, was then and is now speaker of the house, and the relator, Scarborough, is the superintendent of public instruction, and a tax-payer of the state, interested in the due execution of the laws, especially in those relating to the public schools, and has requested the defendants to sign said bill, which request has been refused. Wherefore the plaintiff demands judgment that a mandamus issue to defendants commanding them to sign the said act to the end that it may be authenticated, and for such other and further relief as the case may require.

The defendants answer and say substantially that they admit the facts set out, as hereinafter qualified and explained, or denied. That it does not appear from the house journal that the bill passed its first reading on the 27th of February, but defendants suppose it did, as it was introduced and placed upon the calendar on that day, and that the facts in reference to its alleged passage are as follows: After its passage through the house and its second reading in the senate, the house on the 12th of March, 1879, sent a message to the senate requesting the return of a bill (nearly identical with the one annexed to the complaint) which was complsed with; and thereafter on same day the senate received a message from the house transmitting the bill to revise and consolidate the public school law which had been recalled by that body for correction. That the bill thus returned was materially changed and was not the bill which had passed its first and second reading in the senate, the change being as defendants are informed and believe in section 26 line 5 of the engrossed bill, substituting the word “may” for “shall,” which amendment was made after the passage of the bill upon its second reading in the senate, without a vote of either house; and after such alteration the bill was not returned to the house for concurrence but put upon its third reading as returned from the house. That it does not appear by the house journal that the bill was announced as duly ratified, and that it is true they have not signed it, and the failure to do so was not from design, but defendants say that at the time of adjournment they had no knowledge or information of the facts set out above. And for a further defence they say that the bill did not pass its three several readings in the senate as required by law and the usage of legislative bodies, and that the legislature adjourned on the 14th of March, 1879, and they are advised and believe they are not by law required and ought not to sign said bill, and ask to be discharged with their reasonable costs.

By agreement of the parties the court found the facts from the evidence adduced (the journals and clerks of the general assembly) and they are in brief as follows: The bill was regularly introduced and passed its several readings on three several days, on second and third readings by yeas and nays in the house. It was engrossed and sent to the senate and passed its first and second readings, the yeas and nays being recorded on the second reading. It was recalled by the house for correction and then returned to the senate where the returned bill passed its third reading by yeas and nays. It does not appear that any correction was made. That it was duly enrolled, delivered to the committee on enrolled bills, who endorsed that it was properly enrolled, and it was then carried to the speakers and laid before them with other bills for their signatures, and then to the senate and house on the morning of adjournment with a number of other bills, and announced in both houses as enrolled and ratified. After adjournment it was taken by the enrolling clerk to the secretary of state and left with him. On the following day it was discovered that neither of the speakers had signed it, and the secretary of state refused to receive and receipt for it as a law. Thereupon the court held that a writ of mandamus issue as prayed for, and the defendants appealed.

There was also a similar proceeding asking that the secretary of state be required to receive the bill as one of the laws of the state, which the court refused, but the facts therein are substantially the same as the above, and the two cases were argued together, and the decision of this court covers the question raised.

Messrs. Lewis & Strong, W. Clark and W. H. Pace for @## @plaintiff

:

The signatures are a mere certificate or authentication of what the legislature has done, not a part of legislation. If assent of speakers, their discretionary signatures, is necessary to make a law valid, it gives them a veto power, which the constitution denies even to the governor. There is no authority for interpolating the words, “and shall be signed by the presiding officers” in the first sentence ahead of the semicolon. Const., Art. II, § 23. This would change the meaning and make the constitution require the signatures as a pre-requisite; they sign laws already passed by the houses, and the facts found show that the bill was regularly passed. Their duty being ministerial, we contend that the bill is a law without the signatures, and the plaintiff is entitled to a mandamus to compel them to certify the act and complete the statute-roll. The counsel then cited and discussed Cotten v. Ellis, 7 Jones, 545; Bailey v. Caldwell, 68 N. C., 472; State v. Chase, 5 Ohio St. Rep.; 12 Peters, 524; 25 Md., 173; 39 Cal., 210. No law in this state requiring them to sign in presence of their respective houses or before adjournment. Where the journals and the act are both certified by the speakers, the certificates are of equal validity. State v. Swift, 10 Nev., 176; Legg v. Annapolis, 42 Md., 203. In our case there being no certificate to the act, the plaintiff is seeking to obtain it by using the equally valid certificate made to the journals by the speakers, who are still the presiding officers. In People v. Bowen, 21 N. Y., 517, it was held that the governor could approve a bill after adjournment. See also Leavenworth v. Higginbotham, 17 Kan., 62. Signatures do not constitute any portion of the law, but furnish evidence of its due passage, and are only portions of the many evidences of its validity, the enrolled bills and the journals being the principal evidence thereof and cannot be contradicted. When it appears from the journals that bill passed by requisite majority, failure to sign will not invalidate act. State v. Cottrell, Neb. Rep.

Messrs. John Manning, Reade, Busbee & Busbee and Gilliam & Gatling, for defendants :

Signatures a legislative act, and mandamus cannot issue to order its performance; such writ will never issue as a mere matter of convenience. High on Ex. Leg. Rem., § 15, and authorities cited in note. There is no precedent for this particular action, but the reports abound with cases where the existence and validity of statutes bearing all the marks of genuineness have been assailed. Journals cannot be introduced to attack existence of statute regularly filed among records of state, a fortiori, they cannot be, to call into life one which does not appear in such records. The journals were improperly introduced. Counsel then commented on Brodnax v. Groom, 64 N. C., 244; Trustees v. McIver, 72 N. C., 77. See especially People v. Devlin, 33 N. Y., 269; Sherman v. Story, 30 Cal.; Pacific R. R. Co. v. Governor, 23 Mo., 352; Evans v. Brown, 30 Ind., 514, overruling former cases. So the tendency is to return to the English rule as laid down in Hobart 10; 12 Coke, 58. See also Pangborn v. Young, 32 N. J., 29; 20 Conn., 8; High on Ex. Rem., § 135, et esg.; State v. Swift, 10 Nev., 176; 48 Ala., 115; 32 Miss., 650. Even if journals were admissible, is parol evidence admissible to add to or vary the journals? See cases above cited. Gatlin v. Tarboro, 78 N. C., 119; Cushing's Law and Pr., § 2395. Signing, which is the authentication, must be during session. 1 Nev., 334; 50 Miss., 802. If court can compel speakers...