The San Francisco call., 1896-02-04

lempie, IN determining that the action could
not be maintained, said
l am convinced the jurisdiction ought not TO be
exercised unless some good reason is given for
thus interfering with matter pending in another
court; ihe inconvenience may be very great
1t is not denied that the Legislature may, If
II sees fl to dc SO, confer jurisdiction upon
court OF equity 10 construe an unprotected
VIII, at the suit OF an heir at law claiming in
antagonlsm TO the viii. and the plaintiff, in
TACT, mainly relies for the support of this ae-
uon upon such legislative authorization
section I3S OF the Code of Civil Procedure as
The wisdom OF such legislation, which is
opposed to the scheme OF the probate law as 1t
an action is brought under the statute for the
construction of q Will in the court in which an
application for the probate of the will is pend
Ing, the discretion which the court unques
uonably possesses to proceed either first with
the application for probate or with the action
Tor the construction of the will should, under
ordinary circumstances, be exercised against
the suit. Such course would least Interfere
wish settled practice, and the court, IN the
probate proceedings could as we'll construe the
Will after its admission to PROBATE as could be
done In the action brought for the express
purpose OF obtaining construction: The ar
gument that II favorable construction OF the
will can be secured contest OF the Will may
thereby be avoided, possesses little weight
1t sayors too much OF a request TO permit specu-'
lation upon possible results to be OF great force
Were it not for the fact, in this case, that
three of the four trustees have urged the prose-
cution of the action TO construe the Will, and
that already much time has been consumed
and labor expended, ihere Woula pc lale hesl-
fancy in requiring the probate proceedings TO
go on TO r. hearing, instead OF determining the
questions presented iii this action for the eon-
struction OF the will.
The plaintiff, as has been said, must rest his
case upon the amended section of the Code of
Procedure above quoted. The defendants, the
trustees, contend that the amendment to the
original section, beginning with the words
"DrOVlded. however, was never passed by the
Legislature, inRsmaeh q majority of the
members elected to the Senate never concurred
in the amendment, an inspection of the Jour
nails OF the two houses Will demonstrate. If it
is the right and the duty OF the court TO go be-
hind the enrolled, authenticated and approved
bill in the office OF the Secretary of State, and
to inspect the Journals OF the Legislature to
ascertain whether or not the amendment
was passed by constitutional majority of the
members elected, and II 1t should appear from
the journals that such was not the fact then
the amendment must be declared invalid and
the plaintiffs case must fall. The plaintiff af.
firms, first, that the enrolled, authenticated
and approved bill is conclusive and that its
passage, in accordance with the provisions of
the constitution, cannot be contradicted by
the journals; and, second, that if resort may
be had to the journals the journals will show
that the amendment was Validly passed or.
rather, the journals will not show that it was
not passed. The trustees, on the other hand,
maintain that resort may be had to the Jour-
nals dor the purpose OF impeaehing the bill,
and If the journals be examined they will es-
the concurrence of constitutional majority
lature.
The trustees principally rely, in support of
their contention, upon sections 10 ana Is of
article ~ of the constitution, which provides
that each house of the Leg gislature shall keep
journal OF It's proceedings, aud that upon the
hnal passage OF bills the vote shall be bv yeas
and nays and shall be entered on the journal.
and no bill shall become a law without the
concurrence OF a majority of the members
elected to each house. The argument is that
the constitution having required the houses of
the Legislature 10 keep journals OF their pro-
ceedlngs, and 10 enter thereon the yeas and
nays on the final passage of all bills, thereby
makes the journals records, which must show
that the vote upon final passage was by yeas
| ana nays, and that the bill was passed by the
constitutional majority, and if these facts do
not anrmauvely appear, the act must be pro-
nounced invalid. The argument is supported
by number of cases where the Journals are
silent as to- the yeas and nays, no presurap ption
being INDUCED in that the bill passed by the
| required majority.
But if the journals are to be examined in
dlsproot OF the existence OF an act of the Legis-
lature mall matters in the passage of the act
which they may reeite, yet IL is uniformly held
that the journals must clearly and convincing
iy show that the act was not passed at all, or
not passed in the manner required by the con-
stitGtlon, and that every reasonable presump-
ton is to be INDUCED in TO uphold the act, and
if it be at all doubtful whether or not the act
was passed, or passed according TO the eonsti-
tulonaI requirements, the act mast be sus-
The rule that resort may be mad to the Jour
mails to ascertain whether or not q statute has
been passed by the Legislature has been con-
demned in a number OF the States the coHsti-
tuition OF which, similarly to the constitution
OF this State, provide that in certain cases
entries of the legislative proceedings shall be
made on the Journals. as a rule wholly unnec-
essary and most misehievous and disastrous in
its results. In these States the enrolled bill in
the office OF the Secretary of the State authen-
| ticated by the officers of the Legislature and
approved by the Governor, is conclusive as to
its regular and valid enactment
And this rule has received the sanction of
the supreme Court OF the United States under
both the United States constitution and the
organic act of the Territory of New Mexico.
Field VS.. Clark, 143 y. S., 64S; Lyons VS.
Woods, 153 ID, 649
But, it is said that the California codes
authorize a resort to the journals and place
the journals upon the same footing as the stat
utes themselves, and i'll support of this posi-
ton the railroad tax case, & Saw. 238 294; is
referred to. The opinion in that case on this
point might have some weight were it not for
the fact that one. of the sections OF the Code of
Procedure referred to is materially instructed
and no mention whatever is made OF other sec
tions. The truth is that the codes do not pro-
vide that the journals may be used Tor the
purpose of impeaching statute, or even that
they shall evidence the existence of a statute
Section 1887, G. G., says that Writings are OF
Applying the foregoing results to the facts of
this case, the conclusion in the first place is
that the journals sh odld not be resorted 10 for
tnO puIpOSt vi pedcHiHS tDe Amendment to
the section of the code under consideration
but that the act as enrolled, authenticated and
approved is conclusive that it was regular iy
adopted by the Legislature. In the second
place, il is concluded that ii the journals NAV
be examined at all for the purpose OF ascertain
ing whether or not the amendment received
the concurrence. of the majority of the
members elected to each house OF he Legisla-
ture, on its final passage by a vote OF the ayes
and noes entered on the journals In other
words, il the journals show that upon the final
passage of the bill, as the term ssfinal passage,
is to be understood, the bill was eoncurred in
by the constitutional majority, by a vote OF
ayes and noes tered upon the Journals, then
the act is 10 be sustained, whatever else other
journal entries may show AS 1t appears to
have been the fact that the amendment did re-
ceive such concurrence the act must be upheld
. If the court were permitted to resort to evi-
dence outside OF the journals, or even indulge
in inferences of fact from the journals them
selves. uncontrolled by contrary presumptions
in favor OF the regularity of legislative action
probably different result would be reached
but such result Is not possible under the law,
which seeks TO sustain the enrolled, authenti-
Gated and approved bill as a valid enactment
Hence in every possible view of the law which
may be taken the amendment to the section in
question must be uphe1d
The technical objections to the maintenance