In Carr v. Coke, 116 N.C. 224, the plaintiff, acting solely as a "citizen on behalf of himself and another citizens" (though in fact he was Governor), sought to go behind the ratification of the bill, not on the ground of unconstitutionality, but upon the allegation that it had been fraudulently and erroneously enrolled without having been really enacted, and the court held that it had no jurisdiction and affirmed the dismissal of the proceeding.Summary of this case from Bickett v. Tax Commission
(February Term, 1895).
Statutes — Enactment — Ratification — Presiding Officers' Signatures Fraudulently Procured or Affixed Through Mistake.
When it appears that a bill has been duly signed by the presiding officers of the two Houses of the General Assembly, declaring it to have been read three times in each House, the courts cannot go behind such ratification to inquire whether it was fraudulently or erroneously enrolled before it had been passed after the requisite readings by each House, although the Journals do not show that it was so passed.
ACTION by Elias Carr against Octavius Coke, Secretary of State, for a mandamus, etc., heard before Starbuck, J., at April Term, 1895, of WAKE.
Complaint was as follows:
The plaintiff, in behalf of himself and all other citizens of the (224) State of North Carolina, complaining, alleges:
1. That defendant is Secretary of State of North Carolina, and by virtue of his office has the custody of all the acts passed by the Legislature of 1895, or which purport to have been passed by it.
2. That it becomes his duty by law to deliver certified copies of said acts to the Public Printer of said State for printing and publication.
3. When so printed and published, they become presumptive evidence that they are laws duly and constitutionally enacted.
4. On 13 March, Anno Domini 1895, a bill was signed by the President of the Senate and Speaker of the House of Representatives in the Legislature of North Carolina at its last session, in the presence of each House, and purports to have been ratified upon that day, which reads as follows:
AN ACT TO REGULATE ASSIGNMENTS AND OTHER CONVEYANCES OF LIKE NATURE IN NORTH CAROLINA.
The General Assembly of North Carolina do enact:
SECTION 1. That all conditional sales, assignments, mortgages or deeds of trust, which are executed to secure any debt, obligation, note or bond which gives preferences to any creditor of the maker, shall be absolutely void as to existing creditors.
SEC. 2. That all laws in conflict with this act are hereby repealed.
SEC. 3. That this act shall be in force from and after its ratification. Ratified 13 March, 1895.
5. The said bill, as this plaintiff is informed and believes, was
(225) not enacted a law in accordance with the provisions of the Constitution of this State.
6. The Journals of both Houses of the Legislature show that it was not read three times in either House.
7. The Journal of the Senate shows that it was never read before that body and never passed any reading in it.
8. The Journal of the House of Representatives shows that it was introduced in that body and referred to a committee. The said committee reported it back to the House with an amendment and is silent as to its passage; the bill was laid on the table on its second reading in that body on 12 March, Anno Domini 1895. This appears also in the entries upon the calendar of bills of the House.
9. The bill is marked and stamped "Tabled 12 March, Anno Domini 1895." The affidavits of Ellington are hereto attached and prayed to be taken as a part hereof.
10. It is now deposited among the tabled bills in their proper receptacle in what is known as the old State Library in the Capitol.
11. By some means unknown to this plaintiff, but which he is informed and believes to be fraudulent, the said bill was enrolled by some person to this plaintiff unknown, in the office of the Enrolling Clerk and signed by mistake by the President of the Senate and Speaker of the House of Representatives upon the day upon which it purports to have been ratified.
12. The copy of the enrolled bill purporting to have been ratified, as above stated, is now in the custody of the defendant, the Secretary of the State of North Carolina.
13. The said defendant, in performance of the duty by law imposed upon him, is compelled to deliver for printing and publication to the Public Printer of this State a certified copy of said fraudulent act to be published and printed as an act of the Legislature of 1895, unless (226) restrained from so doing by order of this court.
14. The said defendant now threatens and declares his intention to so deliver a certified copy of the said fraudulent act to the Public Printer to be published and printed as aforesaid.
15. The act when so printed and published becomes presumptively an act of the Legislature, duly enacted and a valid law of the State.
16. This plaintiff is informed and believes that after such printing and publication there is no legal method by which such presumption can be rebutted in the courts of this State, as long as said act remains in the custody of the Secretary of said State, filed with the acts of the Legislature legally passed by it.
17. The plaintiff is a resident and citizen of the State of North Carolina and owns property within said State over and above his homestead and personal property exemptions; he proposes to reside in said State hereafter, and he in common with many other citizens will be injured in his right of alienation of his property if said fraudulent act of the Legislature is printed and published in the manner above stated or remains in the custody of the said Secretary of State, filed with acts of the Legislature as above set forth; that he is a creditor of debtors who are indebted to others, and will be deprived by the said act of the right to secure debts so due him by mortgage, conditional sales, deeds of trust or assignments, unless the relief prayed for in this complaint is granted.
18. That a summons, together with a copy of this complaint, has been served on defendant in this action.
Wherefore, the plaintiff prays that an order be made by this court directing said defendant Secretary of State to show cause why a peremptory mandamus shall not be issued against him to compel him to remove the said act from the files of the law required to be kept (227) by him, and why he should not be enjoined from delivering a certified copy of said act to the Public Printer of this State to be printed and published as a law of this State. And the plaintiff further prays that the said defendant may be restrained in the meantime from delivering a certified copy of said act to the Public Printer to be printed and published as aforesaid, and demands such other and further relief as the court may adjudge that he is entitled to in the premises, and asks that this complaint may be treated as an affidavit for the purpose of obtaining the temporary restraining order for which he prays.
The following affidavit was attached to the complaint:
J. C. Ellington makes oath that he is State Librarian of the State of North Carolina and was such at the time of the searches mentioned below.
That on or about the ____ day of March, 1895, after the Legislature adjourned, and several times thereafter, he made most diligent and thorough search in the office of Enrolling Clerk of the last General Assembly of North Carolina for the document from which the paper now in the office of the Secretary of said State was copied, which purports to be an act to regulate assignments and other like conveyances in North Carolina and to have been ratified on 13 March, 1895, and that the same could not be found and has not since been found therein.
He further maketh oath that he has carefully examined the calendar of the Senate of the last General Assembly of North Carolina for the entire session and it contains no reference to, or mention of said bill or act, either by number or title of any similar bill.
He further maketh oath that he has most carefully examined the Journal of the proceedings of the House of Representatives of (228) the said General Assembly from 20 February, 1895, to 13 March, 1895, both inclusive, said Journals being deposited in the office of, and now in the custody of, the Secretary of State of North Carolina, and that he found the following entries on the Journal of the proceedings of the said 20 February (see page 12, House Journal, 20 February, 1895):
INTRODUCTION OF BILLS.
By Mr. Smith, of Stanly, H. B. 1018: A bill to be entitled an act to regulate assignments. Referred to the Finance Committee.
That he finds nothing else on said Journal of that day touching the said bill or act, or any similar bill or act.
He further maketh oath that he found on the Journal of the proceedings of said House on 21 February, 1895, the following entries (see page 8, House Journal, 21 February, 1895):
REPORTS OF COMMITTEES.
By Mr. Hileman, from the Committee on Finance: H. B. 1018. A bill to be entitled an act to regulate assignments, with a favorable report.
That he finds nothing else on said Journal of that day touching the said bill or act, or any similar bill.
He further maketh oath that he found on the Journal of the proceedings of said House on 28 February, 1895, the following entries (see House Journal, 28 February, 1895):
On motion of Mr. Smith, of Stanly: H. B. 1018. A bill to regulate assignments is made the special order for 8:30 p.m. Friday.
That he found nothing else on the Journal of that day touching said bill or act, or any similar bill or act.
He further maketh oath that there is no entry on said Journal (229) of any act concerning the said bill or any similar bill on the Friday for which it was made a "special order."
He further maketh oath that he found on the Journal of the proceedings of said House on 13 March, 1895, being the day of final adjournment, the following entry:
Mr. _______ from the Committee on Enrolled Bills, reports the following bills and resolutions as properly enrolled, which were duly ratified and sent to the office of the Secretary of State: "An Act to Regulate Assignments."
That there are no other entries on the days referred to nor on any other day between 20 February and 13 March, 1895, except those mentioned, touching said bill or act, or any similar bill or act.
He further maketh oath that he has carefully examined the Journal of the Senate of the last General Assembly for the corresponding dates, and that he finds no reference to said bill or any similar bill either by number or title, and that the same doth not appear on said Journal among the bills reported as "enrolled and ratified."
That he found the bill, a copy of which, with fac simile copy of endorsements, is appended to and made a part of this affidavit, among the tabled bills in the old library room of the capitol, where legislative documents are filed. J. C. ELLINGTON.
Sworn to and subscribed before me this 29 April, 1895. W. T. SMITH, (230) (Seal) Notary Public.
AN ACT ENTITLED AN ACT TO REGULATE ASSIGNMENTS AND OTHER CONVEYANCES OF LIKE NATURE IN NORTH CAROLINA.
The General Assembly of North Carolina do enact:
SECTION 1. That all conditional sales, assignments, mortgages, or deeds in trust which are executed to secure any debt, obligation, note or bond which gives preference to any creditor of the maker, shall be absolutely void as to existing creditors, except those given to secure cash advanced at the time of the execution of the same or to secure advancements for farming purposes.
SEC. 2. That all laws in conflict with this act are hereby repealed.
SEC. 3. This act shall be in force from and after its ratification.
The Finance Committee report this bill favorably with the following amendment, recommended by the committee. HILEMAN.
Amended by striking out in section one all after the word "creditors" in line five of said section.
On the back of said act is indorsed the following: H. B. No. 1018. S. B. No. ______ By R. L. Smith.
A bill to be entitled an act to regulate assignments. Passed first reading 20 February, 1895. Committee on Finance.
Passed House ________________, 189__ Favorable report 21 February, 1895. Engrossed ____________________ Tabled 12 March, 1895.
________________________ (231) Engrossing Clerk.
Special Order Friday evening 8:30. Sent to Senate ______________________, 189__
_________________________ Clerk of House.
Defendant moved to dismiss the action on the ground that the court had no jurisdiction to grant the relief asked by plaintiff.
His Honor rendered the following judgment:
This action coming on for further orders and being argued by counsel and considered by the court, it is, on motion of attorneys for defendant, ordered and adjudged by the court that this action be dismissed for want of jurisdiction of the court to grant the relief prayed for in the complaint, on the ground that the court cannot go behind the ratification of the act as the same appeared in the office of the Secretary of State, and the defendant recover his costs, to be taxed by the clerk, of the plaintiff and his surety for costs.
The plaintiff excepted to the ruling and judgment of the court, assigning error as follows:
1. For that his Honor ruled that the court did not have jurisdiction of the subject-matter of the controversy.
2. For that his Honor ruled that the complaint did not set forth the facts sufficient to constitute a cause of action.
3. Because his Honor did not rule that it was the duty of the court to inform itself by any legitimate source of information within its reach, especially by the Journals of both Houses of the General Assembly, of the existence and passage of the act in controversy.
4. For that his Honor erred in not continuing the injunction until the hearing, and in not hearing any evidence upon the question of the passage of the act.
5. For that his Honor erred in deciding that the mere presence of the act in the office of the Secretary of State, signed by the presiding (232) officers of both houses, was absolutely conclusive upon the judicial department, and that the courts could not look behind the ratification of the said act.
F. H. Busbee and Graham, Boone Boone for plaintiff.
J. B. Batchelor and Armistead Jones for defendant.
AVERY and CLARK, JJ., dissent, arguendo.
The plaintiff, as a citizen and taxpayer of the State, brings this action against the defendant as Secretary of State, who by virtue of his office is the custodian of all acts passed by the Legislature, or which purports to have been passed, whose duty it is to deliver certified copies of said acts to the Public Printer for publication.
The prayer is that the defendant show cause why a peremptory mandamus shall not issue to compel him to remove the act under consideration from his files, and why he should not be enjoined from delivering a certified copy of the same to the Public Printer. An act to regulate assignments and other conveyances of like nature in North Carolina, ratified 13 March, 1895, is the one under consideration.
The complaint alleges that the act was signed by the President of the Senate and the Speaker of the House of Representatives on the said 13 March in the presence of each House, and purports to have been ratified upon that day; that, upon information and belief the act did not become law according to the Constitution of the State. That the Journals of both houses show that it was not read three times in either; that it was never read in the Senate, and was tabled in the House on its second reading, and that by some unknown fraudulent means the bill was enrolled by some person, unknown to the plaintiff, and signed by the said President and Speaker by mistake.
The defendant answered denying the material allegations.
At the hearing the defendant moved to dismiss the action on (233) the ground that the court had no jurisdiction to grant the relief prayed for by the plaintiff. The motion was heard and his Honor dismissed the action for want of jurisdiction to grant the relief on the ground that the court cannot go behind the ratification of the act as the same appeared in the office of the Secretary of State. With the act before us, on its face regular and in due form, ratified by the genuine signatures of the President of the Senate and Speaker of the House, the question is presented, Can the court, as a coordinate branch of the government, look behind this record and investigate by inquiry and proof the manner in which this record was established by the legislative branch of the government, for any of the causes alleged in the complaint?
It may be stated in the outset that it is an important question and one that has not been heretofore presented directly to this Court.
The Court cannot be blind to the consequences that will flow from a decision either way. On the one hand, if we cannot look behind the record, then, paid and corrupt men, lobbyists and other interested ones in and around the legislative halls, will feel more confident and safer in their disreputable work. On the other hand, if we can open the door and permit every act of the Legislature to be inquired into, behind the record, for any of the causes alleged in the complaint, then the State will be plagued with all the evils of a veritable Pandora's box. By an examination of the decisions of the courts of the different States, we find some diversity among the decisions and the opinions of eminent jurists. Those courts, holding the affirmative of the question, as a rule have done so by reason of some provision in their state constitutions (234) or some preexisting statutes. In one or more states the negative was held, and after a change in their constitutions the reverse was held by reason of some new clause in the organic law.
We find in no state constitution the exact wording as it is in ours. We are therefore left to reason with ourselves, and construe the true meaning of our organic law, aided by the best authorities at our command.
Let it now be understood that it is not a question of fraud or wrongdoing in the legislative halls, as alleged in the complaint, with which we are confronted, but simply a question of power. It cannot be said that this Court from it origin until now has ever failed to lay its hands upon fraud or any wrongdoing, whenever authorized by law and requested to do so. If crimes are perpetrated in legislation, the authors are liable and can be punished as other violators of the law, and possibly a reasonable and honest effort by the proper authorities would bring to light the authors of the wrong, if any has been done. There is now before the Court in this proceeding no one who is in the slightest degree alleged or supposed to be connected with wrongdoing in this matter. So, then, we are considering a question of power, and not of investigation behind the record of a coordinate branch of the State government.
Our Constitution, Art. II, sec. 16, declares that: "Each House shall keep a journal of its proceedings, which shall be printed and made public immediately after the adjournment of the General Assembly," and in section 23, "All bills and resolutions of a legislative nature shall be read three times in each House before they pass into laws, and shall be signed by the presiding officers of both Houses." What shall be the entries on the Journals is not indicated by the Constitution, except as above. It is the province and duty of the Court to construe and interpret legislative acts, and see if they disregard or violate any provision (235) of the Constitution, and if so found, to declare them invalid, and this is done upon the face of the act itself. Beyond this duty arises the question of power in the Court to look behind the legislative record and inquire into its proceedings for any cause set out in the complaint. Our decision upon this question is based upon the "reason of the thing," upon public policy for the best interests of the State, and upon the decisions of other courts and our own, which commend themselves to our minds, some of which are now cited.
At common law the ratification and approval of an act of Parliament was conclusive and unimpeachable, etc. "An Act of Parliament, thus made, is the exercise of the highest authority that this Kingdom acknowledges upon earth." "And it cannot be altered, amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of Parliament; for it is a maxim in law that it requires the same strength to dissolve, as to create an obligation." 1 Blackstone Com., 185-6. "The journal is of good use for the intercourses between the two Houses, and the like, but when the act is passed the Journal is expired. The Journals of Parliament are not records, and cannot weaken or control a statute, which is a record and to be tried only by itself." Rex v. Arundel, Hobart, 109-111, Trinity Term, 14 Jac. Broadnax v. Groom, 64 N.C. 244, was a question upon a private act requiring 30 days notice of application, required by Article II, section 4 (now section 12) of the Constitution, and the motion was to prove that the notice had not been given. Pearson, C. J., said: "We are of opinion that the ratification certified by the Lieutenant Governor and the Speaker of the House of Representatives makes it a `matter of record,' which cannot be impeached before the courts in a collateral way. Lord Coke says, `A record until reversed importeth verity.' There can be no doubt that acts of the Legislature, like judgments of courts, are matters of record, and (236) the idea that the verity of the record can be averred against in a collateral proceeding is opposed to all of the authorities. The courts must act on the maxim, `Omnia presumuntur,' etc. Suppose an act of Congress is returned by the President with his objection, and the Vice-President and Speaker of the House certify that it is passed afterwards by the constitutional majority, is it open for the courts to go behind the record and hear proof to the contrary?"
In Scarborough v. Robinson, 81 N.C. 409, in which this question was not directly before the Court, Smith, C. J., in the discussion uses this language on page 426: "The Constitution declares that the legislative, executive and supreme judicial powers of the government ought to be forever separate and distinct from each other. Art. I, sec. 8. And if the nature and effect of an enrolled bill, duly certified and deposited in the proper office, be such as we have attributed to it, it unavoidably follows that the compulsory order demanded in the action would be an interference with the legitimate exercise of the law-making power and an obstruction to the harmonious working of the separate and distinct coordinate departments of the government, and must consequently be denied." We quote this extract in order to show the trend of the judicial mind of the Court as then constituted. In Field v. Clark, 143 U.S. 649 (1891) the question was elaborately argued and considered in an able opinion. The allegation was that an important section in the bill as it passed was not in the enrolled bill authenticated by the signatures of the Speakers and deposited in the office of the Secretary of State. After full consideration of the numerous points argued, the Court held as follows: "The signing by the Speaker and by the President (237) of the Senate, in open session, of an enrolled bill is an official attestation by the two Houses of such bill as one that has passed Congress; and when the bill thus attested receives the approval of the President and is deposited in the Department of State according to law, its authentication as a bill that has passed Congress is complete and unimpeachable. It is not competent to show from the Journals of either House of Congress that an act so authenticated, approved and deposited, did not pass in the precise form in which it was signed by the presiding officers of the two Houses and approved by the President."
The argument was pressed that a bill signed by the Speakers and approved by the President and deposited with the Secretary, as an act, does not become a law if it had not in fact been passed by Congress. The Court said, in view of the express requirements of the Constitution, the correctness of this general principle cannot be doubted. "But," said the Court, "this concession of the general principle does not determine the precise question before the Court, for it remains to inquire as to the nature of the evidence upon which a court may act, when the issue is made as to whether a bill, asserted to have become a law, was or was not passed by Congress. This question is now presented for the first time in this Court."
"We cannot be unmindful of the consequences that must result if this Court should feel obliged to declare that an enrolled bill, on which depend public and private interests of vast magnitude, which has been duly authenticated by the presiding officers and deposited in the archives as an act of Congress was not in fact passed, and therefore did not become a law." Page 670. Although the Constitution does not require that Acts of Congress shall be authenticated by the Speakers' signatures, the Court said that "Usage, the orderly conduct of legislative proceedings, and the rules under which the two bodies have acted since (238) the organization of the government, require that mode of authentication," and when a bill is so authenticated "it carries on its face a solemn assurance by the legislative and executive departments that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act on that assurance, leaving the courts to determine whether the act so authenticated is in conformity with the Constitution." Page 372. "It is admitted that an enrolled act thus authenticated is sufficient evidence of itself, nothing to the contrary appearing upon its face, that it passed Congress." Page 672.
In Pangborn v. Young, 32 N.J. Law, 29, Beasley, C. J., delivered a strong opinion against the affirmative of the present question, and Judge Harlan says: "The conclusion was that upon grounds of public policy as well as upon the ancient and well settled rules of law, a copy of a bill bearing the signatures of the presiding officers of the two Houses and in custody of the Secretary of State, was conclusive proof of the enactment and contents of a statute, and could not be contradicted by the legislative journals or in any other mode" (page 674, and other cases).
In ex parte Wren, 63 Miss. 512, is found a case much in point, in which Campbell, J., in an able and vigorous opinion, said that an enrolled act, such as we are considering, "is the sole exposition of its contents and the conclusive evidence of its existence according to its purport, and it is not allowable to look further to discover the history of the act or ascertain its provisions. Every other view subordinates the Legislature and disregards that coequal position in our system of the three departments of government." He then shows that, if such a rule should prevail, a justice of the peace and all other judicial officers would be compellable and would have the right to investigate the question whether any legislative act was passed according (239) to the requirements of the constitution and whether it was procured by mistake, fraud or otherwise, and upon the complaint of any resident taxpayer.
With these authorities we are content. There are numerous others, but it would be useless to pursue them. We are considering the main and important question which we understand the plaintiff intended to bring to the attention of the Court, without any remarks on the pleadings. It seems to be conceded that the main allegation cannot be established by the Journals as evidence, and that consequently it must be done by some other kind of proof. It is urged that fraud vitiates everything, but if we can go behind the record, would not mistake, bribery, etc., serve equally as well? It is also argued that the fraud alleged is admitted and is therefore to be taken as a fact for the purposes of this action. Admitted by whom? The respondent does not admit it in his answer. The motion was to dismiss for want of jurisdiction, and the court rendered its decision expressly on that ground. The defendant is a mere ministerial State officer who was not a member of the Legislature, and has no authority from it to plead or admit anything for it. Is he authorized by the Speakers of the two Houses to admit that they signed the bill by mistake? They have made no such admission so far as this record discloses, and they have no opportunity to admit or deny anything. Is the defendant authorized to admit that by some unknown and fraudulent means the bill was enrolled? If so, who authorized him to admit it? The defendant might have ignored this proceeding entirely without the slightest dereliction of duty. Who then defends the Legislature or its Speakers when this grave question is under consideration? The Executive does not feel it his duty to defend in the matter, (240) presumably because he is not authorized by any one to do so. Then, is there such admission of fraud or any other wrong as to enable the Court to treat the allegations of the complaint as facts? But, however these matters are, we have seen that we have no power to make the order asked for by the plaintiff, and that the remedy, if any is needed, is with the legislative branch of the State government.
We are of opinion that his Honor committed no error, and his judgment is