Burkhart v. Reed

WEIR, C. J. This is an application by the plaintiff for a, writ of mandate to be directed to the defendants above named. The grounds upon which the writ is asked are fully set out. in the petition of the plaintiff, which is as follows: "The above-named plaintiff, H. Z. Burkhart, shows that he was the duly elected Speaker, and is now the actual and acting Speaker, of' the House of Representatives of Idaho; that defendant, Charles-H. Reed, is chief clerk of the House of Representatives, and Edward J. Curtis is the secretary of the territory of Idaho; and for cause of action for mandamus alleges that the said defendant, Charles H. Reed, has in his possession, as such chief clerk, the minutes of the proceedings of said House of Representatives-for the last day of the fifteenth session; that the same has not. yet been signed by plaintiff, H. Z. Burkhart, the Speaker, and said defendant Reed refuses to present the same to said Speaker for his signature, but that said defendant Reed, in preparing a record of said minutes, omitted a part’ of the said proceedings ; that in truth, on the sixtieth day of the said session, February 7, 1889, just before 12 o’clock P. M.3 the said Speaker inquired if there was any further business; that the clerk replied there was none; said Speaker then requested the journal — 505 — to be read, which was done by the clerk; that thereupon the proceedings, as recorded in said journal, were approved by the House of Eepresentatives, and by said Speaker declared to be approved; that thereupon, the hour of 12 o’clock midnight having arrived and passed, the Speaker did, after said hour, declare and announce that the time having arrived when, by act of Congress, the session of the legislature must close, therefore he, as Speaker, thereby then and there declared said session closed and adjourned without day; that no objection was made by the House, or any member thereof, to the said adjournment, or to the authority of said Speaker to declare the same adjourned, but all acquiesced therein; that after the Speaker and a part of the members had retired from the room a portion of the members pretended to elect a Speaker pro iem,., to wit, one George P. "Wheeler, and assumed and attempted to proceed with pretended legislation; that a large number of assumed and pretended bills were assumed to be passed by the said remaining members, and pretended to become the acts of the legislature; that all pretended proceedings on said last day after the Speaker retired were after 12 o’clock midnight, and after said House had been adjourned; that in preparing the journal of said proceedings said clerk omitted to state, and did not state, that the minutes were read and approved by the House; that the Speaker declared the House adjourned; that the House was adjourned by the acquiescence and assent of all the members, and that the Speaker pro iem. was elected after the said adjournment, and the subsequent pretended legislation had and done after such adjournment; that said chief clerk, Charles H. Eeed, pretends and asserts that he has made up the journal of said last day’s proceedings, has procured the signature of said Wheeler as Speaker pro iem., and delivered the same to Edward J. Curtis, secretary of the territory, but the minutes of proceedings as prepared by said Eeed omit the matter as hereinbefore alleged to be omitted, and is a false statement or record of the said proceedings; that the said secretary, Edward J. Curtis, treats and wrongfully holds out the minutes so signed by said Wheeler and the chief clerk as the true minutes, record and journal of the — 506 — House of Representatives, and is recording the same as such journal, and threatens to certify them to Congress as the journal of said House of Representatives; that he knew that said proceedings of the last day were not signed by the Speaker; •that plaintiff, by his attorney Lyttleton Price, has filed, to wit, on-the 9th of February, 1889, and before the same were recorded with said secretary, Edward J. Curtis, a demand in writing that he do not record said proceedings, and a protest •against the same on the ground that they were not the correct record of the proceedings of the House of Representatives; that the plaintiff did, on the eighth day of February, 1889, demand of the defendant, Charles H, Reed, that he present said minutes of proceedings to the plaintiff for signature; that he failed and refused, and still fails and refuses, to so produce the same; that the rules and practice of said House of Representatives require that the said defendant Reed present all the .minutes of proceedings thereof to the plaintiff, as such Speaker, for his signature. Wherefore plaintiff prays that said Edward J. Curtis may produce in court the original minutes, record or proceedings delivered by said Reed to said Curtis, •and that said defendant, Charles H. Reed, be required to prepare said journal according to the facts as hereinbefore set forth, and state that said minutes were read and approved; that after the hour of 12, midnight, of February 7, 1889, the ■Speaker declared said House adjourned sine diej that the ■House did not object to such adjournment,- but acquiesced ’therein, and in all of the other proceedings hereinbefore stated; and that such journal be handed to the Speaker to sign, and ‘.thereafter, when so amended and completed, to be delivered to said secretary of the territory as the minutes of the proceedings .•of said last day, or that said defendants show cause forthwith why said defendants should not do so.” Upon this petition the court granted an alternative writ of mandate, which was made returnable on the fourteenth day of February, 1889, to which the defendant Curtis demurred, and ■assigned for grounds of demurrer the following: “1. That this court has no jurisdiction of the person of the defendant; 2. That this court has no jurisdiction of the subject matter of this action; 3. That the plaintiff has not legal capacity to sue, in this: 1. That the plaintiff was not at the time of the com507 inencement of this action, and is not now, the Speaker of the House of Representatives of Idaho territory; 2. That the plaintiff has no beneficial interest in the result of this action; 3. That if the plaintiff is now, or was at the time of the commencement of this action, Speaker of the House of Representatives of Idaho territory, this action should and must have been brought upon the relation of the proper prosecuting officer; 4. That there is a misjoinder of parties defendant herein; that this defendant, as secretary of Idaho territory, is joined as code-fendant with Charles H. Reed, clerk of the House of Representatives of Idaho territory; that there is no community of interests or duties between said defendants, and no act, the performance of which this writ was issued to enforce, could be jointly performed by them, and the writ herein requires different and separate acts from each of said defendants; 5. That several causes of action have been improperly joined herein in this: that the defendant, Charles H. Reed, is required to do and perform certain acts, and this defendant required other and different acts, which acts have no relation to each other; 6. That it does not state facts sufficient to constitute a cause of action; 7. That the same is ambiguous and uncertain in this: it does not appear what is required of this defendant; it does not clearly appear who is to make the alterations in the records and journals; it does not appear who has the possession of the journals and records of the House of Representatives, or who did have the possession at the time of the commencement of this action.” The jurisdiction of this court to issue the writ is derived from section 3816 of the Revised Statutes, which is as follows: “Its original jurisdiction extends to the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its appellate jurisdiction.” We do not deem it necessary to notice the various grounds of demurrer as hereinbefore set forth, but will confine our attention to the sixth ground: “'That it does not state facts sufficient to constitute a cause of action.” The disposition of the case upon this ground disposes of it according to our view, and renders it unnecessary for us to consider any further point. The petition for complaint alleges that the plaintiff — 508 — was the duly elected Speaker, and is now the actual and acting Speaker, of the House of Representatives of Idaho; that the defendant, Charles H. Reed, is chief clerk of the House of .Representatives, and Edward J. Curtis is the secretary of the territory of Idaho; that Charles H. Reed has in his possession, as such chief clerk, the minutes of the proceedings of the said House of Representatives for the last day of the fifteenth session; that he refuses to present the same to the plaintiff for his signature, and has prepared a record of said minutes, omitting a part of the said proceedings. The petition then proceeds to set forth certain facts which it alleges took place in the House of Representatives, but that the defendant Reed has omitted such proceedings from the minutes; and proceeds to allege that the said chief clerk has made up a journal of said last day’s proceedings, has procured the signature of one Wheeler, as Speaker pro tem., and has delivered the same to Edward J. Curtis, secretary of the territory; that the minutes of. proceedings, as prepared by said Reed, omit the matters-alleged in the said petition to have been omitted, and is a false statement or record of the proceedings; that the secretary, Edward J. Curtis, wrongfully holds out the minutes so signed by Wheeler and the chief clerk as the true journal of the House of Representatives, and is recording the same as such journal, and threatens to certify them to Congress as the journal of the House of Representatives, although he knows that the said proceedings were not signed by the plaintiff. While it is true that a general demurrer admits the truth of facts as stated in the pleadings, yet it is equally true that facts not well pleaded, and mere conclusions of law, are not admitted by a demurrer. There is no pretense that the averments in this paragraph are mere conclusions of law, or that the facts are not well stated. The contention is that the facts stated, if established, would be immaterial and irrelevant, and would constitute no valid ground upon which this court could act. In plain language, the facts, if admitted true, would not constitute a cause of action. (Bliss on Code Pleading, see. 418.) Moreover, “a public statute, of which we are bound, ex-oflicio, to take notice, as well as to the time it went into effect, as to its provisions, this allegation is not admitted, or to be taken to — 509 — be true by the demurrer. The existence or the time of the taking effect of a public act cannot be put in issue, or admitted or denied by the pleadings, but must be determined by the judges themselves.” (Attorney General v. Foote, 11 Wis. 16, 78 Am. Dec. 689.) It seems to be well settled that the courts will take judicial notice of the journal of a legislative body to determine whether an act of the legislature is constitutionally passed, and for the purpose of ascertaining what was done by the legislature. A journal, according to the petition, has been filed with the secretary of the territory, and is therefore a public record, and such a record as this court is bound to take judicial notice of. There is, then, no need of stating what appears upon the journals of the legislature or what does not appear. Such matters are judicially noticed without averment. No issue of fact can be taken upon what a court is required, as a court, to know. These averments in the pleading, even if true, contain no issuable fact, and in such a case a demurrer is the proper remedy. The petition concedes that a journal has been filed by the clerk, upon the adjournment of the legislature, with the secretary of the territory, but alleges that the journal was not properly made up by him. Section 124 of the Revised Statutes of Idaho provides that “the clerks, at the close of •each session of the legislature, must mark, label, and arrange all bills and papers belonging to the archives of their respective Houses, and deliver them, together with all the books of both Houses, to the secretary of the territory, who must certify to the reception of the same.” We have said that the petition concedes that a journal has been delivered to the secretary of the territory, and that the secretary of the territory treats such journal as the journal of the legislature. By section 190 of the Revised Statutes the secretary of the territory is charged with the custody of such journals. Section 1844 of the organic act provides that the secretary shall record and preserve all the laws and proceedings of the legislative assembly. We are now invited to direct the secretary to produce before this court the journal which was delivered to him by the clerk of the House of Representatives, in order that the plaintiff, a member of the — 510 — legislature, may be allowed to make certain corrections therein, and that, after such corrections are made, the secretary receive the corrected journal as the journal of the legislature, delivered to him by the clerk thereof. The production of the-journal would be a mere idle proceeding, unless for the purpose of allowing the court to pass upon the question of fact as to whether this book is or is not the journal of the legislature^ The journal itself is a public record, and open for public inspection, and any citizen of the territory is entitled to inspect the same; so that its production can only be asked for in order-to allow certain corrections to be made. Hence, if this court comes to the conclusion that it cannot allow such corrections, to be made, then the production of the journal merely for inspection is wholly unnecessary. There is no dispute that the law places no obligation upon-Curtis, as secretary, other than that he must receive the journal from the clerks of the legislature and record the same. From the language of section 124 of the Bevised Statutes it is clearly the duty of the clerk to make up such records as he deems proper to be delivered to the secretary, and deliver the same. This he has done, and that is the only duty imposed upon him by statute. The law presumes he has done this correctly, and, if not, he is amenable to the Criminal Code of this territory. The question whether the papers so delivered by the clerk to the secretary are correct or not is one which this court cannot entertain. The papers so delivered either are or are not the journal of the legislature. If they are, then this proceeding necessarily fails. ‘ If they are not, then it is not the province of this court, nor within the power of this court, to question them, or to make a journal for the legislature. That power is vested in the legislature alone, and is not a power conferred upon the courts. It is contended with great zeal by the learned counsel for- the relator that the journal so delivered is not the journal of the legislature; hence the relator has a right to correct it, so that in his judgment it may become the journal of tha legislature, and, as so corrected, that the same be filed with the secretary. This position is wholly untenable. Certainly -t-.his court would not correct so important a document as the511 journal of a legislature, or what purports to be the journal of a legislature, upon the unsupported statement and recollection of one person only, without hearing evidence which might be-offered by the defendant. That would necessarily involve the-trial of an issue of fact — namely, is the journal so filed correct or incorrect — the trial of which issue might lead to the-most absurd consequences, which we do not deem necessary to-state. If the plaintiff desires the production of this public record as a mere matter of curiosity, then, of course, the court would refuse to grant the writ. His only object in demanding-its production, therefore, can be but for one purpose only, and that is, that the court may correct it according to certain evidence which may be introduced. The principle of law is-settled beyond controversy that a court will not go behind the journal of a legislature to ascertain what was done by that, body. The journal itself is conclusive, and, if the journal is incorrect, or improperly made up, it is for the legislature-itself to correct it, and not for the court. The journal, as-filed, purports to be the journal of the legislature. It is-signed by George P. Wheeler, Speaker pro tem. of the House, and would, therefore, seem to be correct on its face. The presumption always is that when an act of the legislature is signed and enrolled, that it has gone through all the necessary formalities. A few of the states hold that the enrolled statute is-conclusive evidence of its due passage and validity. A great, majority of the states, however, hold that this makes out a. prima facie case only, and that such case may be overthrown by the journals, and that the judges, for the purpose of satisfying themselves, may'take judicial notice of the journal, and, if that appear to be regular, that is final and conclusive upon the courts. (Cooley’s Constitutional Limitations, 5th ed., 163, note 2; Sherman v. Story, 30 Cal. 253, 276, 89 Am. Dec. 93; Territory v. Clayton, 5 Utah, 598, 18 Pac. 628, 629; State v. Smith, 44 Ohio St. 348, 7 N. E. 449; Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738.) We have been unable to find a single case which maintains1 the contrary of this document. Counsel, with great zeal, have searched for such authority, but have been unable to cite us to a single one. We have endeavored to find some authority — 512 — ior the position taken by counsel for the plaintiff, but have been unable to find any. The authorities cited by counsel, in which superior courts have compelled inferior courts to correct their records, are not at all in point, and are entirely different in principle. The superior courts have authority over inferior courts, and it is their duty to compel them to keep proper records. On the contrary, courts have no authority over the deliberations of a legislative body, and therefore cannot compel them to keep any record, or interfere with any record that they have kept. The case of Territory v. Clayton, supra, is in point here, and seems to have been well decided both upon authority and principle. In that case the court refused to go as far as we are disposed to go. There the court refused to look beyond the record contained in the office of the secretary of the territory, and refused to go to the journals of the legislature for information, and expressly held that it would not receive verbal testimony to support or contradict the record in the office of the secretary of the territory. It is unnecessary for us to go into the reasons which have induced the various courts to unanimously proclaim the doctrine which we may have set forth. It would be a mere waste of time, because most of the authorities which we have cited contain the reasons of the courts for their action. It is contended that there is some difference between a direct attack upon the action of a legislature and a collateral attack. It is sufficient to say that in every case which has been presented to our attention the attack upon the acts of the legislature has been collateral. We concede that this is the first case, so far as we are able -to ascertain, in which the court has been invited by mandamus to inquire into the acts of a legislative body by verbal testimony, and to permit its record to be corrected, or, if there be no record, to make one; and we can safely say that this case is sanctioned by no precedent and sustained by no authority. “The supposed ease of less than a majority of this court causing a judgment to be entered of record is not apropos, for, if it were done, the only remedy would be in this court, for the reason there is no other tribunal or department of the government that could afford one; and, by parity of reasoning, the only correction that can be — 513 — made in a legislative journal is by the body that caused it to be made. The suggestion that fraud or bad motives in those who caused it to be made might defeat the remedy, would apply to the one case as well as to the other; but confidence must be reposed somewhere, and why not in a legislative body as to the keeping of its journals, as well as in this court as to the keeping of its records? Besides, the people is the final tribunal before whom, as a rule, such delinquencies must be settled (Cooley’s Constitutional Limitations, 168); and, in the case of legislators, the return to the people being at comparatively short intervals of time, it is difficult to see how such abuses, if they exist, can be of very long standing, and in such cases it is ‘better to bear the ills we have than flee to others we know not of.’” (State v. Smith, 44 Ohio St. 348, 7 N. E. 449.) Some question has been raised by counsel for the plaintiff that this body was not the legislature. As the petition itself alleges that the plaintiff was the Speaker of the House, that the defendant Reed was chief clerk of the House, and that these journals, with certain exceptions, are the journals of the House, and that, as such journals, they have been delivered by the clerk to the secretary of the territory, and received by him and recorded as such, we cannot consider that point. For the reasons that we have stated the demurrer must be sustained, and the application for a writ denied, with costs. Logan, J., concurs..