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

nave been cited in the case IN 40 Ala I
The case in 81 Cal, Ill, makes no |
mention of the case in 30 Cal, in which !
the contrary doctrine is held, and con- ,
tains no satisfactory reason for the con- |
clusion reached
The cases in fl and - Maryland are pc
culiar and when considered in Connection
with Fouke V. Fleming, Is Md, 1872, and
Mayor v. Harvood, 81 Nd, AL, cannot
be considered as putting Maryland
among the States whose courts permit
the enrolled act of the Legislature TO be
overthrown by the journals. 10 the iates.
case cited the court said: Nor do we
decide in this case that the journals OF
the two houses, though required by the
constitution to be kept a. records OF
their proceedings, would be evidence per
Sc upon which the validity o. a statute
having the required authorization,
could be successfully questioned as to
the manner of its enactment. Bat we
think the journals, in connection with |
other competent evidence upon the sub |
ieet may be examined as means OF in
formation TO aid in arriving at cor
rect conclusion is TO what was the action /
of the Legislature on any particular ball |
before it, 1t Is observable also, that the |
constitution of Maryland expires aly re- |
quires that every bill shall be actually !
eaqr0ssed for third reading" and the |
code OF that State declares the journals |
evidence.
In both the Minnesota eases the acts
OF the legislature we've upheld.
The case in IL Ind, was oveTruled by
Evans Y. Brown, SO Ind, 5l4
The decision reported in 20 Ohio State,
supra, is rested on Miller Y. State, Ohio
ST., 475, the opinion in which by Thur
man, @. j., we submit strongly supports
our view.
State V. PIatt, s c., was decided by
divided court, and the dissenting
opinion is far more satisfactory than
that of the majority of the court. IN
State v Hagood, IL 5. c., the doctrine
of the former case was followed IN de
ference to Stare Deeisis, but an able
opinion shows the error of the former
railing.
The third view mentioned above meets
our unqualified approval, because II Is
| the simplest, the surest to avoid errors
and difficulties, in accord with the con
stitution, and supported by an array OF
authority, and a cOgency OF argument
| that command our fullest assent. Every
other view subordinates the Legislature,
and disregards that .coequal position in
our system of the three departments OF
government If the validity of every
act published as law is to be tested by
examining its history, as shown by the
| journal of the two houses of the Legis-
| lature, there will be an amount OF liti-
CATION difficulty and painful uncertain
| ty appalling in its contemplation, and
multiplying a hundred fold the alleged
uncertainty of the law. Every suit be-
fore every court, where the validity of
a statute may be called in question as
affecting the right of a litigant, will be
in the nature of au appeal or writ of er.
ror or bill of review for errors apparent
on the face of the legislative records;
and the journals must be explored to
determine, if some contradiction does
not exist between the journals and the
bill signed by the presiding officers of
the two houses. What is the law, IS to
be declared by the court. 1t must in
form itself as best il can what is the Jaw.
1t NAV 60 beyond the enrolled and sign
eG bill, and try its validity by the rec
ord contained in the journals; it must
perform this task rs often As called on,
and every court must do it. 4 Justice
of the peace must do it, for he has as
much right, and Is as much bound to
preserve the constitution, and declare
and apply the Law as any other court,
and we viii have the spectacle of exam
ination of Journals by justices OF the
peace, and statutes declared TO be not
law as the result of their journalistic
history, and the circuit and chancery
courts will be constantly engaged in like
manner, and this court will on appeal
have often to try the correctness of the
| determination of the court below as to
the conclusion to be drawn from the
legislative journals on the inquiry as to
the validity of statutes thus rested. 1t
is difficult enough often to say what an
admitted statute means, and, while we
would not shrink from the investigation
of all questions of fact on the existence
of which any statute depends, we decline
to review the legislative records to try
the regularity of its action as to the
manner Of exercising its constitutional
authority TO enact laws, over which its
power is az plensry as that of this court as
to the manner in which it shall exercise
its jurisdiction.
The rule which we announce as the
correct one is supported by Sherman V.
Story, 80 Cal, 253; People v. 8urt, 43
Cal. $50; Evans V. Browne, 50 Ind,
514; Koehler V. Hill, 60 Iowa, $40;
Company Y. Richoux, % La. An, 743;
Mayor v. Harwood, 81 Nd, Al; Rail
road Co. V. Governor, % Mo, 1853; Swan
v. Buck, 40 Miss, 26S; State V. Swift,
10 Nevada, lie; Panghorn V. Young, 81
n. J. Law, 90; People V. Devlin, 33 n
Y, 269; Brodnax y. Groom, CT \. c.,
244.
There are other cases supporting the
opposite views, but we have cited the
most important on both sides.
The English rule is conceded to be
that for which we contend.
The fundamental error of any view
which permits an appeal to the jour
nails to see if the constitution has
been observed in the passage by both
| houses of their enactments, Is the as
sumed right of the judicial department
to revise and supervise the legislative as
to the manner of its performance of its
appointed constitutional functions. 1t
is the admitted province of the courts
to Judge, and declare if an act of the
| Legislature violates the constitution,
but this duty Of the courts begins with
the completed act of the Legislature. It
| does not antedate it, The Legislature is
one of the three CO ordinate and coequal
departments into which the powers of
government are divided by the ccnstitu-.
ton, possessing all the legislative power
and not subject to supervision and con-
troll during its performance of its consti
tutional functions, nor to Judicial re-
vision afterwards of the manner ia
which it obeved the constitution its
members are sworn to support. From
necessity, the judicial department must
| Judge of the conformity OF legislative
acts to the constitution, but what are
| legislative acts must be determined by
what are authenticated as such accord
| ing to the constitution. That instru
ment contains many provisions as to the
passage of bills, which are admitted to
be addressed to legislators exclusively,
and for nonobservanee of which there is
confessedly no remedy which courts can
apply. Why should a distinction be
drawn between the different provisions
of the constitution, and some be held
mandatory and Others directory? There
is no reason for such distinction, and
it is the offspring of necessity born of
the error of regarding any of the provis |
ions Of the constitution addressed to
and obligatory on the Legislature as
enforceable by the courts rs supervisors |
of the Legislature. The sound view,
and that which avoids the Inconsistency |
of the distinction mentioned, is to re- |
gard all the provisions of the oonstitu |
ton mandatory, and those regula. ing |
the legislative department as addressed |
to and mandatory to that body, and /
with which the courts have nothing to /
do in the way of revision of how the /
Legislature has performed its duty in
matters confded exclusively to it by the