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

the courts In fact some of counsel for
respondent, in their oral arguments, au-
nitted that the courts had the right g
judicial notice CT the Journals, gu'
claimed that they contained nothing ue-
rogatory 20 the validity Of the act. anu
in 3nts I think they were correct
Clearly the affirmative of the quesdon
is supported by the weight OF AUTHORITY -
TIE several states of the union, as Vel
as by eminent text writer's
Jodge Cooley in his treatise on con-
stitutional limitations on page To-. says
Each house keeps a journal OF its pro-
ceed.ngs. which Is PUBLIC record, anu
OF which the courts are ST liberty to TAKE
Judicial notice If il should appear from
these journals that any act did not re-
ceive the requisite majority, or tnat ~ ~
respect Il IL the legislature did mol ioi-
low any requirement Of the constitution
OF that H. any other respect the act was
not consntutionany adopted, the courts
may act upon this evidence ana ad1uoSe
the statute void
Judge Sutherland in his work on statu-
tory construction, section &c, states the
law as follows:
when an act is found lodged IN the
Office of the secretary of state. win tne
pul lie acts passed at the same session
signed by the presiding officers, approved
and signed by the governor, and II IS
published ny authority as one OF the
public statutes of the state or IS otnef5,
wise authenticated according TO law ana
IN proper custody the presumption Is that
II was regularly passed. unless there Is
evidence Of which the courts take Juc1clal
journals are records. and in ali respects
touching proceedings under The mdnda-
tory provision of the constitution VIII pe
efrcctual TO impoach ana AVOID the acts
recorded as laws and duly authenticated,
If the journals affirmative show tnat ;hese
provisions have been disregarded. In the
absence of such an affirmative showing.
and even In cases OF doubt, 1t W. De
presumed that quorum was present;
that the necessary readings occurred; that
amendments made by one branch. thougn
extensive, were germaine; that they were
concurred in 10y the other branch, though
the journals may be silent
And in section AZ, he says.
THE tendency, however. of the law
growth IS 20 preserve the supremacy OF
constitutional authority, leaving 1t 10 the
wisdom of the legislature 10 mitigate any
incidental Inconvenience by closed OBJ
serYGnce Of the prescribed procedure. and
more diligent attention TO the making and
preservation of a public record of the es-
sentials. The cases cited in the preced-
ing section hold the constitutional in
functions imperative: and as the eonsti-
tutions require the keeping and publica-
ton of legislative journals, these are
treated as sources Of information 10 be
relied on by the courts as well as the
public
MORE AUTHORITIES.
In section Al. Id. he says:
The journals, by being required by the
constitution or laws. are records. At
common law the legislative journals were
not strictly records; while admissible IN
evidence lot certain purposes as
memorials or remembrances, they were
not admissible TO show that an act of
parliament had rot been passed according
TO its own rules But when required. as
is extensively the case in this country,
by q paramount law, for the obvious pur-
pose OF showing how the mandatory pro-
visions of that law have been followed
in the methods and forms of legislation,
they are thus made records in dignity,
and are of great Importance The legis-
latsve acts regularly authenticated are
alCn records acts. naSSpu. duly
thenticated. and such journals are parallel
records. but the latter are superior when
explicit and conflicting with the other, for
the acts authenticated speak decislvely
only when the journals are silent. and not
even then as to particulars required to
be entered therein
See also section II, ID
So Black in his late work on interpre-
tation of laws, published In 1896. page 225,
after speaking of the right Of referring TO
the journals of the legislature in aid of
the Interpretation Of statutes, says:
1T will be observed that this question
is an entirely different matter from re-
sorting to the legislative journals to as
certain whether an act was constitution
ally passed. that is, passed with the
requisite majority, or after the REQUIRED
number OF readings or with call OF the
house on its final passage, or otherwise in
conformity with the requirements OF the
constitution. On this point, the rule set
tied by q majority of the courts is that
is is compeent TO 90 behind the enrolled
act ard consult the journals, but that
the act Will not DC declared NOlu lot lack
Of compliance with tine constitutional
forms unless their non-observance is
shown affirmatively by the journals. If
the journals are silent as 10 these mat
tiers il viii be presumed that the lesis-
lature complied with ali the constitutional
requirements. in any event, no evidence
can be received to contradict the jour
mails"
n the state OF New Hampshire. in 1855
an act was found lodged In the Office Of
the secretary OF state, with other public
rH~ he ~
sienea by the speaker or the mouse or
representa- t.ves and the president CT the
senate. and had unOn Il the approval OF
the governor, and had been publshed by
authority as one of the pubic statutes
enacted al that session. The validity
of the act having been questioned. be-
cause in its enactment the legislature
had failed 10 comply with a certain re-
oliirement Of the constitution, the gov
eraor submitted that question OF its
validity 10 the supreme court or that
state In their opilion, IS n II. 90
unanimously holding the act invalid. the
court. upon the question Whether they
could look into the journals, SAID;
I'VE are of the opinion mat the Jour
nails which the cons titution thus requires
10 he kept by the senate ana house or
representatives TO be lodged and pre-
served in the general public depository
of the state records, and TO he published
annually 81 the same manner as the
uuhlic laws. were intended TO furnish the
courts and the public with the means OF
ascerta.ninr what was actually done in
and Tx each branch OF the lezis-a tnre-
rot merely for the purpose OF enabling
the people to judge of the manner in
which their public servants have con-
Quoted themselves in their office OF leels-
lafors but also for the purpose OF de-
termining whether the proceedings OF the
legislature have been in conformity with
the provisions OF the constitution; that
those Journals. under cur constitution are
not TO be regarded as mere remembrances
Of cceeafags.' KEEP BY each house for
It's own lsa and convenience which teN-
1,ira' when the act y passed or the busi-
ness is 6isnosed Of &c which they relate
Rut We think they are 10 be treated
as authentic records of the proceedings,
and that we may resort 10 them IN his
case to ascertain whether the two houses
IN faef concurred IN the rassage of the
before mentioned act; that 7 ]; appears
IN the journals that they did not, the
NINA ese.a evidence derived from an ex-
animation OF TIE act itself viii be over
come
Mr. Justice Gray. in Post VS.. supervs-
o.s 1O5 L 5 6S7. said
,''rhe copies of the journals certified (
b. the secretary OF state. and tiie printed /.
journals. published in obedience e law. |
are both competent evidence q The pro- I
ceedings In the legislature
IN Han VS.. Steele. & Ala co.. Mr. Jus
tice CloptCn said;
I'VE have uniformly held. thai wen the 1
constitution docs not require the Journals
70 affirmaiiveiv show THAI a particular /
thiur. necessary 10 the validity Of the I
ievieisrive action was done. mere silence /
will not invalidate and in such case We I
wul presume that the legislators OBJ
served their obligation. and did not pass
such bin without sufficient PROOF lhat me