Neiberger v. McCullough

Mr. Chiee Justice Carter, dissenting:

Assuming that the admissions of the Attorney General in his brief and argument must be regarded as controlling the decision of this particular case, yet the majority opinion goes beyond this particular case and lays down a rule for the government of other cases with which I cannot agree. I concur in that portion of the opinion which holds that amendments proposed by conference committees are required to be printed the same as other amendments, but I do not believe that under the constitution and the decisions of this court, if the journals fail to state that the report of the conference committee was printed, the court must conclude that it was not printed before the final vote was taken.

As stated in the majority opinion, there is a great diversity of judicial holdings as to whether the legislative journals may be looked into for the purpose of impeaching the validity of an enactment which is valid on its face. In many jurisdictions it has been held that when a bill has been properly engrossed, enrolled and filed with the Secretary of State it is not competent to show by the journal of either house of the legislature that such act was not regularly passed in the form in. which enrolled. This has always been the holding by the English courts, but as that country has no written constitution such holdings are not even persuasive in this case. In a large number of jurisdictions, including Illinois, the courts have held that an enrolled bill is only prima facie evidence that it has passed the legislature, and if it is alleged that the legislature has failed to comply substantially with any constitutional requirement in the passage of the bill the journals may be introduced to support such contention. (See authorities in note to Palatine Ins. Co. v. Northern Pacific Railway Co. 9 Ann. Cas. 579.) The United States courts have held that such an enrolled act cannot be impeached by resort to the journal, and the State courts are about equally divided on the question. (1 Lewis’ Sutherland on Stat. Const.—2d ed.—sec. 44.) The current of judicial decisions during recent years (undoubtedly owing to the decision of the Federal Supreme Court in Field v. Clark, 143 U. S. 649 ,) has been against the right of the courts to go back of the enrolled act to impeach it by the journal.

Sections 12 and 13 of article 4 of the constitution read, so far as here relevant:

“Sec. 12. Bills may originate in either house, but may be altered, amended or rejected by the other; and on the final passage of all bills, the vote shall be by yeas and nays, upon each bill separately, and shall be entered upon the journal.

“Sec. 13. Every bill shall be read at large on three different days, in each house; and the bill and all amendments thereto shall be printed before the vote is taken on its final passage.”

In addition to these provisions the following must be kept in mind from section 10 of article 4 of the constitution: “Each house shall keep a journal of its proceedings, which shall be published. In the senate at the request of two members, and in the house at the request of five members, the yeas and nays shall be taken on any question, and entered upon the journal. Any two members of either house shall have liberty to dissent * * * and have the reasons of their dissent entered upon the journals.”

The practice is for each house in a legislative body to keep a journal of its legislative proceedings, of which the courts take judicial notice. “If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence and adjudge the statute void. But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of a legislative body. It will not be presumed in any case, from the mere silence of the journals, that either house has exceeded its authority or disregarded a constitutional requirement in the passage of legislative acts unless where the constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.” (Cooley’s Const. Lim.—7th ed.—193-195.) The rule on this question so laid down by this learned author is supported by the great weight of authority. Where the particulars of compliance with the constitution are not specifically required to be entered on the journals such compliance will be presumed, in the absence of express proof to the contrary. The silence of the journals will not be accepted as proof that a proceeding required and not found recorded was omitted, but if the constitution requires a certain proceeding in the process of legislation to be entered on the journals such an entry is necessary to the validity of the act. It must then affirmatively appear by the journals that such constitutional requirement has been complied with. Lewis’ Sutherland on Stat. Const. (2d ed.) secs. 51-53; Black on Const. Law, (1895) sec. 106; 26 Am. & Eng. Ency. of Law, (2d ed.) 541, and cases cited; 36 Cyc. 957, and cases cited.

It is held by the majority opinion that this court has not followed the rule as thus laid down, but has decided that each requirement of the constitution as to the enactment of laws would be presumed not to have been followed if the journals did not affirmatively show that it had been. The earliest case bearing on this question in this court was Spangler v. Jacoby, 14 Ill. 297 . It was stated there: “It is clearly competent to show from the journals of either branch of the legislature that a particular act was not passed in a mode prescribed by the constitution, and thus defeat its operation altogether. The constitution requires each house to keep a journal, and declares that certain facts made essential to the passage of a law shall be stated therein. If those facts are not set forth the conclusion is that they did not transpire.” It will be noted that this case refers to matters which the constitution then, as now, declared shall be recorded in tire journal,—in that case the passage by yeas and nays.

In Turley v. County of Logan, 17 Ill. 151 , the opinion, among other things; states: “The journals should show the readings and the passage of the law by a constitutional vote.” The language thus used was not necessary for the decision, and the court sustained the act upon the ground that the same legislature subsequently amended the journal to show (as correctly shown by the original minutes of the clerk) that the bill had been read three times.

In Schuyler County v. People, 25 Ill. 163 , it was objected that the senate journal did not show that the act was read three times in that body before it was put upon its final passage. The court said: “The constitution does require that every bill shall be read three times, * * * but the constitution does not say that these several readings shall be entered on the journals. Some acts performed in the passage of laws are required by the constitution to be entered on the journals in order to make them valid, and among these are the entries of the ayes and noes on the final passage of every bill, and we held in the case of Spangler v. Jacoby that where the journal did not so show this the act never became a law. But where the constitution is silent as to whether a particular act which is required to be performed shall be entered on the journals it is then left to the discretion of either house to enter it or not, and the silence of the journal on the subject ought not to be held to afford evidence that the act was not done. In such a case we must presume it was done, unless the journal affirmatively shows that it was not done.” This holding conforms in all respects to the general rule as laid down by Cooley, Sutherland, Black and other authorities heretofore cited.

It is held by the majority opinion that the case of Schuyler County v. People, supra, is not in accord with the other decisions of this court. With this holding I can not agree. In People v. Starne, 35 Ill. 121 , it was held that as the house journal did not show that the bill in question was ever put upon its passage or that the yeas and nays were called and spread upon the journal the act was invalid. The court said (p. 136) : “According to the theory of our legislation, when a bill has become a law there must be record evidence of every material requirement, from its introduction until it becomes a law. And this evidence is found upon the journals of the two houses.” This and other statements in the opinion fairly support the contention that all the mandatory provisions of the constitution should be shown affirmatively by the journals. It seems clear, however, that the court did not intend to overrule Schuyler County v. People, supra, for in commenting on that case it said (p. 142) : “It is there held that although the journals failed to show that the bill was read three several times in each house, the constitution not requiring that fact to be recorded the law would not for that reason be invalid. But it was there said, in accordance with the rule in the case of Spangler v. Jacoby, that under the constitution it was requisite to the validity of án act that the ayes and noes should appear upon the journals.” Moreover, the judge who wrote the opinion in the Starne case afterward wrote the opinion in Wabash Railway Co. v. Hughes, 38 Ill. 174 , where, in discussing whether it was essential that the journals should show the time when the bill was presented to the Governor, the court said (p. 186) : “Some acts must appear from the journals to have been performed, as well as the proper authentication upon the bill, before it can be regarded as a law of the land. Everything which the constitution has required to be entered upon the journals in the progress of a bill through the two houses -is essential to its binding force and must appear from the journals to have been performed. Other acts required to be done by the two houses but not required to be spread upon the journals will be presumed to have been done when a statute appears in other respects to be regular, unless the contrary appears from the journals themselves. (Schuyler County v. People, 25 Ill. 163 .) Such was the rule adopted in that case and we see no reason for departing from it.” This rule of law as laid down in Wabash Railway Co. v. Hughes, supra, has been approved several times, (Burritt v. Commissioners of State Contracts, 120 Ill. 322 ; Chicago Telephone Co. v. Northwestern Telephone Co. 199 id. 324 ; People v. McCullough, 210 id. 488;) and has never before been directly questioned by any decision in this court.

In People v. DeWolf, 62 Ill. 253 , and Ryan v. Lynch, 68 id. 160, the questions involved were as to the final passage of the bills there considered. Just after these decisions had been handed down by this court, the Federal court for the Illinois circuit, (the late Justice Harlan presiding and writing the opinion,) in the Lake Front case, (State of Illinois v. Illinois Central Railroad Co. 33 Fed. Rep. 730,) discussed the question whether, if the journal was silent as to the second reading of a bill, that fact would, under our constitution and the decisions theretofore rendered by this court, justify the holding that the law was invalid. After reviewing all the authorities from this State Justice Harlan said (p. 763) : “We do not find that any of the numerous decisions of the State court relating to the passage of bills by the legislature have modified or overruled the doctrine announced in Supervisors of Schuyler County v. People. With that doctrine we are entirely satisfied. It is in harmony with the adjudications in many of the States whose constitutions have provisions similar to those in the constitution of Illinois which we have been considering. (Citing authorities.) We therefore hold that the mere silence of the senate journal as to whether the act of 1869 was read the second time in that body does not justify us in holding it to be invalid.”

It is true that in People v. Knopf, 198 Ill. 340 , and People v. Bowman, 247 id. 276, statements are made which might be construed as upholding the doctrine laid down in the majority opinion, but in neither of those cases were the statements necessary to the decision of the questions there involved. Neither of those decisions refers to Schuyler County v. People, supra, or Wabash Railway Co. v. Hughes, supra, nor to any of the other cases heretofore cited as sanctioning the rule laid down in the case last referred to. In the Knopf case it was proved that the bill never passed both houses in the form in which it was signed and approved and filed with the Secretary of State. As the vote on the final passage must be shown on the journals, necessarily the journals could be looked to to see whether the bill became a law. The only point decided in the Bowman case had reference to the recording of the yeas and nays on the final passage. Neither of those cases, in my judgment, holds that the steps which the constitution requires to be taken in the passage of bills but does not expressly state must appear in the journal, such as printing the amendments, must so appear.

Under the conclusions reached in the opinion of the court all steps required by the constitution in passing a law must be entered on the journal of each house of the legislature, otherwise the act will be void. This construction of the constitution leaves, it seems to me, without any force or meaning the requirement that the yea and nay vote must be entered upon the journal of each house. The fact that these and other like provisions are inserted, requiring that certain things should be entered at length upon the journals, seems to demonstrate that the members of the convention who drafted the constitution intended that such requirements must be shown on the journals, otherwise the laws would be void, but that laws would not be held void if other provisions of the constitution not required in specific terms to be entered on the journals were not so entered. If it were intended that all the steps in passing a law must be shown by the journals or the law would be void, why did not the members of the constitutional convention so provide? That the constitution requires certain proceedings of the legislature to be set out in the journals but does not require certain other proceedings to be so set out, proves that the constitutional convention intended to make a distinction between those proceedings that are necessary and those that are not necessary to be shown on the journals.

The printing of amendments to bills not being required by the constitution to be set out on the journals of the legislature, by a fair construction of the constitution and the great weight of authority the courts, in my judgment, ought not to presume, by the mere silence of the journals as to such printing, that the legislature failed to comply in that regard with its duties under the constitution.