# State ex rel. Knox v. Dillard

> Supreme Court of Alabama · April 21, 1916 · 196 Ala. 539

URL: https://www.frixlaw.com/law-library/cases/7368590

## Case

- **Full name:** State, ex rel. Knox v. Dillard
- **Court:** Supreme Court of Alabama
- **Decided:** April 21, 1916
- **Citations:** 196 Ala. 539; 72 So. 56; 1916 Ala. LEXIS 456
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Anderson, Gardner, Mayfield, McClellan, Remanded, Somerville, Thomas, Who
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7368590

## Opinion text

“ON REHEARING.
“PER CURIAM.
As the only constitutional question presented by the demurrer is whether the act of August 8, 1907, is violative of section 104, par. 29, of the Constitution, and that was the only question considered by the court below and in the argument of the case here, we cannot consider other constitutional questions suggested to us.”
When the statute in question became operative, and appellant assumed office under it, the Legislature was in session, and could then amend the journals if they did not show a reference of the bill. Certainly until the Legislature adjourned it was impossible in law or in fact to know what the journals would ultimately *554 show. It seems to me that any other rule would be almost intolerable to the trial courts. Until the journal is printed and bound there is only one copy of that of each house, and it is not usually printed and bound until months after the Legislature has adjourned. For example,.no part of the journals were printed when this case was tried, and the whole is not yet printed at this late date. I ask how in law or in fact the trial judge could have known what the journal showed, with reference to the bill in question, without access thereto, or having a certified copy thereof before him. Yet we are here deciding that he should know, or did know, that which no one knew or could know without an inspection of the journal itself, and it had not then been printed, if it had been made up. The following is what other courts have said on the subject:
The Supreme Court of Illinois seems to have dealt oftener, if not first, with the question of the legislative journals’ failing to show a compliance with constitutional provisions similar to those of our Constitution; and in the case of Grob v. Cushman, 45 Ill. 124 , that court said: “It is first insisted that the La Salle county court did not have jurisdiction of the subject-matter of this cause; that the act of the Legislature under which jurisdiction was claimed never became a law in the mode prescribed by the Constitution. And counsel in their argument refer to the journals of the House in support of the position. On the trial below no evidence from the journals was introduced. But it is now urged that, as they are public records, this court will take judicial notice of them, and not require them to be embodied in the evidence. It is true that they are public records, but it does not follow that they will be regarded as within the knowledge of the courts like public laws. Like other records and public documents, they should be brought before the courts as evidence. But when offered they prove their own authenticity. Until so produced they cannot be regarded by the courts.”
In the case of Devine v. Fish Furniture Co., 258 Ill. 389, 391 , 101 N. E. 539 , it is said: “Whether a statute has been passed by the General Assembly in compliance with the constitutional provisions relating to the manner in which a statute must be passed is a question of fact, which must be proven before the cause is submitted to the jury. This question cannot be raised for the first time on a motion to set aside the verdict and for a new trial. On such .a motion the only errors which can be considered are *555 such as have intervened on the trial. It is manifest that the court could not err in reference to a matter which was not pre- • sented on the trial.
“Counsel for the appellant contend that, inasmuch as the whole Senate Journal was admitted in evidence, this and every other matter it contained were presented, and appellant had the right, on the hearing of the motion for a new trial, to urge anything appearing therein of which it desired to take advantage. The better practice would have been for the court to have permitted the introduction of only such portions of the Senate Journal as had a bearing upon the particular fact then sought to be proven. But in this case the result is the same, as the court .expressly limited the application of this evidence to the question of the constitutionality of the amendment to the Fire Escape Act.”
In a more recent decision of the last-mentioned court there was presented the same question here under review, and the court again said:
“In the exercise of appellate jurisdiction the court cannot receive evidence of facts not before the court whose judgment is being reviewed, and can only receive evidence while exercising original jurisdiction. The validity of the act could only be questioned in this court on the ground alleged, in some proceeding in which the court has jurisdiction to try issues of fact, and the contents of the journals of the General Assembly must be proved like any other fact. —Spangler v. Jacoby, 14 Ill. 297 [ 58 Am. Dec. 571 ]; Devine v. Fish Furw. Co., 258 Ill. 389 [ 101 N. E. 539 ].” —Frietag v. Union Stockyards Co., 262 Ill. 551 , 104 N. E. 901, 902 .
The Supreme Court of New York has spoken as follows on the subject in the case of People v. Supervisors, etc., 8 N. Y. (4 Selden), 323, 324:
“The plaintiffs in error insist that the act of April 16, 1851, entitled an act for the enrollment of the militia, etc., is unconstitutional both in the mode in which it was passed and in its subject-matter, apparent on the face of the act. If either of these grounds be established, the judgment of the court below should be reversed.
“The objection on the score of form is divided into three heads: (1) The question on the final passage of the act was not taken by ayes and noes; (2) the ayes and noes were not duly *556 entered upon the journal; and (3) three-fifths of all the members elected to the Legislature were not present at-its final passage.
“The first answer to these objections is that the plaintiffs in error are not in a condition to raise either of them. Where the objection to the validity of a law springs out of the failure of the Legislature to comply with the provisions of the. Constitution, which is not apparent upon the act itself, it should be distinctly set forth in the pleadings, or in this case in the return. The adverse party should have an opportunity to controvert the allegation, and to prove a due conformity on the part of the Legislature with the requirement of the Constitution. The legal presumption is that a law published under the authority of the government was correctly passed, so far at least as relates to matters of form. —Thomas v. Dakin, 22 Wend. [N. Y.] 9; Hunt v. Van Alstyne, 25 Wend. [N. Y.] 608.”
The error into which the majority of my Brothers have fallen is well pointed out above, better than I could hope to do. While journals may be considered public records of which judges and courts will take judicial notice, the contents thereof cannot and will not be “regarded as within the knowledge of the courts like public laws.” — 45 Ill. 124 ,
This holding of the Illinois and New York courts has been often approved by the highest tribunal in the United States, if not the highest in the world. In the cause of In re Duncan, reported in 139 U. S. 449 , 11 Sup. Ct. 573, 35 L. Ed. 219 , that court, speaking through its Chief Justice,, said: “It has been often held by state courts that evidence of the contents of legislative journals which has not been produced and made part of the case in the court below will not be considered on appeal. —Ill. Cent. Railroad Co. v. Wren, 43 Ill. 77 ; Bedard v. Hall, 44 Ill. 91 ; Grob v. Cushman, 45 Ill. 119 ; Hensoldt v. Petersburg, 63 Ill. 157 ; Auditor v. Haycraft, 14 Bush. (Ky.) 284; Bradley v. West, 60 Mo. 33 ; Coleman v. Dobbins, 8 Ind. 156 .
“The distinction is recognized between matters of which the court will take judicial cognizance ‘immediately, suo motu,’ and those which it will not notice ‘until its attention has been formally called to them.’ — Gresl. Eq. Ev. 292, 306. As to the last Mr. Gresley says: ‘It will not point out their applicability nor call for them, but if they are once put in by either party it ..will investigate them, and wilí bring its own judicial.knowledge to supply or. assist their proof, and will then adopt them.as its own *557 evidence independently of the parties.’ —Jones v. United States, 137 U. S. 202, 216 , 11 Sup. Ct. 80, 34 L. Ed. 691 .
“As a statute duly certified is presumed to have been duly passed until the contrary appears (a presumption arising in favor of the law as printed by authority, and in a higher degree of the original on file in the .proper repository), it would seem to follow that wherever a suit comes to issue, whether in the court below or the higher tribunal, an objection resting upon the failure of the Legislature to comply with the provisions of the Constitution, should be so presented that the adverse party may have opportunity to controvert the allegations and to prove by the record due conformity with the constitutional requirements. —People v. Supervisors of Chenango, 8 N. Y. (4 Seldon) 317, 325.”
The following cases are to the same effect: Smith v. Speed, 50 Ala. 276 ; Joiner v. Winston, 68 Ala. 129 ; Hill v. Tarver, 130 Ala. 592 , 30 South. 499 ; Bray v. State, 140 Ala. 172 , 37 South. 250 ; Foster v. Lee, 172 Ala. 32 , 55 South. 125 , Ann. Cas. 1913C, 1335; Shook’s Case, 177 Ala. 522 , 58 South. 390 ; K. C., M. & B. R. R. Co. v. Whitehead, 109 Ala. 495 , 19 South. 705 ; Shehane v. Bailey, 110 Ala. 308 , 20 South. 359 ; Ex parte. Steverson, 177 Ala. 384 , 58 South. 992 ; Southern Ry. v. Stonewall, 177 Ala. 327 , 58 South. 313 , Ann. Cas. 1915A, 987; Wes. Ry. v. Foshee, 183 Ala. 182 , 62 South. 500 ; Lovejoy v. Montgomery, 180 Ala. 473 , 61 South. 597 . There are scores of others, some of which are cited in the above cases. In the case last cited it was said: “ ‘He who assails a statute on the ground that it is unconstitutional assumes the burden of vindicating his position beyond a reasonable dou bt.’— State, ex rel. Meyer v. Greene, 154 Ala. 254 , 46 South. 268 ; State, ex rel. City of Mobile v. Board of Revenue and Road Commissioners of Mobile County, 180. Ala. 489, 61 South. 368 . Presumptively, therefore, all statutes are constitutional,, and the burden is on him who assails a statute as violative of a particular clause of the Constitution to show that it does, in fact, contravene the particular provision of the fundamental law.”
In Southern Ry. Co. v. Stonewall, supra, the plea of the general issue was held not to put in issue the constitutionality of a statute on which the rights of the parties depended.
In Fitzpatrick’s Case, 169 Ala. 1 , 5 South. 1021 , it is said: “Where the act is not patently invalid on its face, it has been the rule of this court not to search for constitutional objections to an enactment of the Legislature oh a general suggestion of uncon *558 stitutionality without more; otherwise this court would, upon every such suggestion, be put to the necessity of searching the original journals of both branches of the Legislature to inquire into the history of the act from its introduction into that body to its final passage and approval, This is a duty that rests upon the complaining party and not upon the court. Unless the act is patently unconstitutional on its face, the presumption should be in favor of its validity.”
In Crumpton’s Case, 177 Ala. 212 , 59 South. 294 , it is said: “It is the established rule of this court to decline to pass upon the constitutional validity of legislative enactments, unless the determination of the questions and rights then before it requires their decision. —Smith v. Speed, 50 Ala. 276 ; Bray v. State, 140 Ala. 172, 179 , 37 South. 250 ; Hill v. Tarver, 130 Ala. 592 , 30 South. 499 . It is of course a corollary of this rule, arising from the reason of the rule itself, that, where several or many constitutional questions are presented by the record, that or those only will be considered or determined which is or are necessary to the adjudication of the controversy. In short, this court will not decide any constitutional question respecting the validity of legislation, unless its decision thereupon is ‘indispensable’ to the determination of that litigation.”
In Wes. Ry. of Ala. v. Foshee, supra, the constitutionality of a statute was assailed and its invalidity insisted upon. Upon this statute solely depended the rights of the parties on the appeal; and in that case it was said: “We have thought it best not to enter upon a discussion of the only objection which, it occurs to us, may with plausibility be taken against the act, to-wit: That it destroys the right of the parties to a suit to contract and dispose of a disputed claim according to their own concurring notions of right and justice, for the reason that we are satisfied the question cannot be raised by demurrer to pleas as plaintiff undertook to raise it in this case.”
In the case of Brown v. A. G. S. R. R. Co., 87 Ala. 370 , 6 South. 295 , the constitutionality of a statute was challenged in the justice court, and was upheld. On appeal to the circuit court it was again challenged on the same ground, and the circuit court declared the act void. On appeal to this court the decision of the circuit court was affirmed. Some years thereafter, in the case of K. C., M. & B. R. R. Co. v. Whitehead, 109 Ala. 495 , 19 South. 705 , this court, speaking through Brickell, C. J., said *559 this of that decision: “Statutes cannot be pronounced unconstitutional at the mere will of courts, or in suits in which they are not involved, not the foundation of any right asserted by the plaintiff, or matter of defense preferred by the defendant. * * * .
“It is not of consequence now within our province to consider whether it is violative of or in strict conformity with the Constitution. That question must remain open until a case may arise in which its decision becomes necessary to the adjudication of the rights of the parties. If it should arise, the court cannot be trammelled by the opinion in Brown v. Alabama Great Southern R. Co., 187 Ala. 370 [ 6 South. 295 ].”
There is another reason why I cannot concur. The validity of the statute in question, as a whole, was not assailed. The complaint alleged in terms that the enactment was duly passed by the Legislature. The defect relied on went only to a part of the statute, and not to the whole. The complaint shows that plaintiffs treated it as in part valid, that they held office under it, and they here seek to continue to hold office under it; so assuredly they are not the proper persons to raise the question here decided. It has been repeatedly decided by this court that parties who rely on a statute, and act under it, and receive benefits under it, will not be heard to assail it. In Baldwin v. Kouns, 81 Ala. 272 , 2 South. 638 , it was said: “Neither party is in a position to assail the constitutionality of the statute, both claiming and asserting rights under it as a valid enactment. We have therefore not considered the constitutionality of any of its provisions and do not wish to be understood as intimating any opinion. We have assumed its validity as between the parties to this proceeding solely for the purposes of this decision.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7368590. Public record. Not legal advice.