The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-05-12

OF such doctrine Is fult OF
mischief, without any compensating ad-
But it is said the courts are
guardians of the constitution, and, II
they do not look into the history OF
legislative doings that department may
disregard the constitution as 10 the
manner of passing laws. True, the
courts are guardians OF the constitution
in the performance OF their duty to de
eide causes, and should not shrink from
declaring an act OF the legislature en-
acted precisely in the mode prescribed by
the constitution void, If its provisions
violate 1t; aud on the other hand, the
courts should not arrOgate the uneon
stitutional prerogative of reviewing and
revising the course of legislative pro |
cedure in passing bills in the exercise t
of its clearly conferred right to pass |
them by virtue of an instrument con |
tanning iniunctions binding on it, and |
sought to be enforced by the oath requir- |
ed of members, and not committed 10 |
the courts
Undoubtedly, the journals may be
evidence, and may be resorted to in
some Gases. aud must be as to some
matters. They were properly looked
to in gardner a. The Collector, Wal.
lace, 449, in the effort TO fix the date OF
approval Of a bill by the President.
They must furnish the evidence that
bill returned by the Governor without
his signature, and with MS objections,
was so dealt with as 70 become law,
for it IS ouly by the approval by two
thirds OF both houses, determined by
yeas and nays entered on the journal OF
each house, that such bill car become
| law, and as the constitution so pro
vides, and has not prescribed any means
of attesting or authenticating the con
currence Of those requisites 70 such
| bill becoming law, i, rests, necessarily,
on the Journals. which mast show that,
although the bill was not signed by the
! Governor, but returned with OBJECTIONS,
/ it, nevertheless, became law according
to the constitution. The case Is pecu
| liar, and extraordinary, and not govern
ed by the rules applicable to the ordina
~ case where the Governor signs the
bill The provision for the signing OF
bills By the presiding officers does not
apply here, and whether the bill on re-
| consideration became law may depend
on those things prescribed and which
cannot be shown except by the journals
of both houses. Had the constitution
provided any means of authorization of
| such action by the two houses as to
make bill returned by the Governor
| with his objections law, II would have
| been exclusive, but in the absence OF
such provision the journals are the me
mortal of the action which converts a
bill returned by the Governor with his
objections, into q law.
The constitution provides for its
amendment, and contains specific pro
visions on the subject. The provision
is that, Whenever two thirds of each
branch Of the legislature shall deem
anv change, alteration or amendment
necessary to this constitution, such pro-
posed change, alteration or amendment
Shall be read and passed by q two thirds
vote Of each house respectively on each
dav for three several days; public no
tice shall then be given, &c. This is
aside from the ordinary business of leg
islation 1t is not legislation 1t is a
/ proposal by two-thirds of each house to
amend the constitution. 1t IS not called
bill by the constitution, for bill is a
proposed law, and this is not. This is
a proposition originated, as provided, 70
the qualified electors for them to vote
on.
1t is not REQUIRED to be signed by the
president of the senate and the speaker
Of the house of representatives. for the
provision on that subject relates to bills
for the enactment of laws. 4 proposed
amendment to tie constitution Is not
required to be presented to thu govern
or. He has nothing to do with a pro
posal to amend the constitution. Only
such bills are to be presented to him as
he may make laws by approval and sign
ing or by not returning them. This is
Enthusiastically true, and yet in the case
Of Green V. Weller, - Miss, $50, the
plain distinction between the enact
ment of laws by passing bills, aud pro-
posing an amendment of the constitu
tuition was not adverted to.
The proposal to amend the constitu
ton was spoken of as passing a bill, and
stress was laid on its having been signed
by the presiding officers of the two
houses and by the governor. Certainly
their signing, not being required by the
constitution, had no virtue. As to a
proposal to amend the constitution the
journals of the two houses are by the
constitution made the only egidence OF
the proposal by the required number of
each branch, and they should show
what the constitution prescribes as to
this.
In the case cited, Judge Handy was
clearly right on the general question as
to the enrolled bill being conclusive
evidence in the enactment Of laws, but
he was as clearly wrong in applying
that wholesome rule to proposal to
amend the constitution; and Judge
Smith was clearly wrong as to the rule
a. applied to laws, but right in claiming
that the journals were to be looked to
as the memorial of the proposed amend
ment to the constitution, if it was a
question for the court to decide.
Were the question before US it Is not
improbable that We shoald concur in
the view of Judge Fisher, AS reported
in the appendix of SO Miss. Reports,
and hold that the power to propose
amendments of the constitution is con-
fided to the legislature, and that it is a
matter between the people and the legis-
lature, and that there is no authority
| in the courts to revise the conioint
action of the legislature aud the quail
! fed election. The question is political
and not judicial, and for the determine
ton of the political department of tie
government.
The case of Green V. Weller, supra,
although by a divided court, was pub
| lished as placing Mississippi in line
with those who make the enrolled bill,
duly signed, conclusive evidence of its
existence aud contents, and in the case
of Swan V. Buck, 40 Miss, 26S the for
mer case was cited, and the rule an
nounced as settled in accordance with
this view. This was then considered to
| be the settled doctrine in this State La
1869 new constitution was adopted in
| this State, and it contains substantially
the provisions of the former constitu.
| ton, in the particulars mentioned, with
out any change to indicate new rule
on the subject being considered. In
Brady V. West, 80 Miss, IS, this court
pronounced San act to regulate the fees
and salaries of public officers" void, be-
cause it was evident from an inspection
of the enrolled bill as signed by the
governor and deposited in the office of
the Secretary Of State, that it was not
the bill passed by the legislature" and
the former doctrine in this State, and
with reference to which it may be as
suuled the constitution was framed and
adopted, was departed from, and views
were announced which we regard as I'M
sound aud mischievous in their tenden-
CIV. That case is now overruled. We
decline to decide upon the guilt or in
nocence of the appellant, aud remand
him to the custody of the sheriff to be
proceeded against as provided by law,
when upon the plea of not guilty, the
question of guilt or innocence will DC
presented. 1Girmed.
II. B McGEE, EraLl
VS..