The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-12-23

Mr.. Justice Bartch yesterday handed
down an opinion in the election con-
test case of NJ L. Richie against the
state board of canvassers. Justice
Bartch discusses two propositions only.
VIZ; Whether or not il is proper to go
behind the enrolled bill for evidence of
Its legal enactment; and the question
whether or not the ballot was secret.
In both of these he differs from Chief
Justice Zane. holding that the enrolled
act is only prima facie evidence of its
enactment, and that for further proof
the Journal may be resOrted to- In
this case. however, he holds that there
is nothing in the journal to show that
the Dill was not legally passed, and in
the absence OF any such evidence the
presumption is that the requirements
OF the constitution were complied with
and the law is, therefore, GEalid in that
respect.
In re~ard to secrecy. Justice Bartch
holds that the ballot was not secret
within the meaning of the constitution.
ana that the portion of the act provid-
ing for the Identification of the bal
lots is void, but that the fact of small
portion OF the act being invalid does
not invalidate it as a whole
Justice Bartch's conclusions. there
fore, coincide with those of the chief
Justice. Justice Miner concurs in the
opinion written by Justice Bartch,
which, in full. is as follows:
CONCURS IN THE RESULT.
I concur in the result that the a2pli-
cation for the writ must be denied. But
do not concur in the proposition which
appears to be maintained in the opinion
that when an enrolled act of the legis-
lature IS duly signed. approved and de-
posted in the Office of the secretary of
state. this court must cOnclusively pre-
SiTne that all constitutional REQUISITES
were complied with in -its--eneefment
This, II occurs 10 me- is extending the
rule further than Is warranted by the
decisions of the courts of the United
States, or by the welfare of this state.
or by the Will Of the people as announced
in the constitution Carried to its legit-
innate effect this proposition means that
when an enrolled act has been properly
signed, approved and deposited with the
secretary OF state, il is the law of this
commonwealth. even though in its enact
ment, express limitations OF the consti-
tuition have been violated, and that when
drawn in question the judges who are
called upon TO determine its validity have
no power TO go beyond the enrolled act,
and look into the journals of the legis-
lature, required 10 be kept by the con-
srltut.on TO satisfy the judicial mind of
lis constitutional DaSSIge- This WOuld
Place the legislature. in the mode of the
enactment of laws. beyond the control
of the sovereignty itself. and the limit
atoms contained in the constitution. re-
speeding the manner OF enacting laws,
would be mere useless verbiage.
With all due respect to that coordinate
branch OF the government. / cannot con-
sent to a proposition that would invest
II with power so arbitrary. Because
such rule obtains to the parliament OF
Great Britain under a monarchial form
OF government. it cannot be regarded as
. VOW note g.
sovereign power as declared in the or
ean.c law. The people in their sover-
eign capacity. after great elaboration
adopted a constitution. and established a
government consisting Of an executive,
a legislative and a judicial department.
That constitution IS their supreme will
which must be Obeyed by every individ-
ual. be he of high station or of low.
Those composing the several departments
are but agents. and in their acts are
bound by the organic law, and the limit
atoms and restrictions contained therein
are not mere abstract principles, but sol
emn declarations by the people them
selves. They are as conclusive upon such
agents as any other portion of the writ
ten charter. Limitations are not peculiar
to any one branch of the government.
but there are those which apply to each
department, and they are imposed as a
security TO the right of the principal
the people The power of the govern
ment is vested in the three departments
tc be exercised. subject to these limita-
tons. The power 10 declare what the
law shall be is legislative. The power
power TO declare what is the law is dele
gated TO the judicial department. and
therefore the courts have the unqueS-
toned right to declare any act of the
in any of the departments.
which violates the constitution, TO be ut
terly void. This right or power necss-
sarily includes the power to declare what
epactments of the legislature are and
what are not laws, and in exercising
this function the courts do not trench
upon the domain of the legislative de-
upon its official acts. When the enrolled
act is assailed in a court Of law, on the
ground that it was not conStitutionaly
p3 ssed by the legislature. the court must
determine whether there was comDli-
ance or noncompliance with the manda-
tory provisions of the cOnStitu-
ton. respecting the mode and
manner of the passing Of the
MAY GO TO THE JOURNAL
For this purpose. ! have no doubt
that, upon principle as well as authority
the court may take judicial notice or the
legislative journals. and. in a proper case.
go behind the enrolled act. even when
such act has been properly authenticated
and deposited with the secretary of state,
and examine such journals, giving their
contents such weight, as evidence, as
iaey may be entitled to receive, consid-
ering tho manner in which they are kept
and circumstances under which the en-
triea have been made, and II in such case
II should affirmatively appear upon the
Journals. or either of them, that in pass
lng the act. the legislature had disre-
garded a mandatory provision OF the
the court would be justified
10 holding the same unconstitutional and
voic. l.. however, the journals were
merely silent as to the subject under in
vestieaticn, then the presumption that
the legislature acted according 10 the
delegated power should prevail
1t seems that even tho English rule ad-
-,its the journals OF parliament to be
evidencc for such purposes as they are
there considered 70 be provided. but they
annot there be referred to for the pur-
rcsa Of impeachine the enrolled act.
/ am therefore of the opinion that in
his country, the enrolled act Of the leg
Stature. duly signed. approved. and de-
sosited with the proper. custodian is
.rima facie but not conclusive evidence
n irs constitutional enactment. and of
That the law is; that the courts may
axe judicial notice Of the legislative
;ournsls. required to be kept by the con-
sfffnfion and that such journals possess