Currie v. Southern Pacific Co.

Strahan, C. J. The first question to be determined is whether or not the circuit court had the power to permit a reply to be made in that court for the first time. If such power exist, it must be found in the justice’s code and not elsewhere. (Odell v. Gotfrey, 13 Or. 466.) But we must first determine what constitutes the justice’s code. [570] The acts of the legislature of 1885, 136, contain what purports to be a law enacted at that session. It is entitled “An act to further simplify proceedings in justice’s courts, and to repeal chapter IV of the justice’s code, being part of an act entitled ‘An act to regulate the civil and criminal procedure in justice’s courts,’ and also to repeal section 80 of chapter IX of the justice’s code.” Section 7 of this act is undoubtedly comprehensive enough to enable the circuit court on appeal to allow or require formal pleadings even when none had been filed before. We must, therefore, consider whether or not it is law. This act is compiled in Hill’s code, §§ 2059, 2060, 2072, 2073, 2074, 2127, and 2130. The enrolled copy in the office of the secretary of state bears the signatures of the presiding officers of the two houses and the approval of the governor; but the journal of the senate, however, fails to show its passage. Section 13 of article IV of the constitution provides: “Each house shall keep a journal of its proceedings. The yeas and nays on any question, shall, at the request of any two members, be entered, together with the names of the members demanding the same, on the journal; provided, that on a motion to adjourn, it shall require one-tenth of the members present to order the yeas and nays.” And section 19 of the same article is as follows: “Every bill shall be read by sections, on three several days, in each house, unless in case of an emergency two-thirds of the house where such bill may be depending, shall, by a vote of yeas and nays, deem it expedient to dispense with this rule; but the reading of a bill by sections on its final passage shall in no case be dispensed with, and the vote on the passage of every bill or joint resolution shall be taken by yeas and nays.” In this country the authorities are not uniform as to the power of the courts to look behind a bill regularly enrolled and signed; but both the weight of authority as well as the reason of the rule seem to sustain the power of the courts to look into the journals of the legislative assembly under [571] such constitutional requirements as exist in this state. ( Vide the elaborate note to Jones v. Jones, 51 Am. Dec. 611; 12 Pa. 350, where many authorities on each side of the question are collated.) Without undertaking to reconcile the conflict between the various adjudged cases, it may be stated generally that where a bill has been regularly enrolled, signed by the presiding officers of the two houses, approved by the governor, and filed with the secretary of state, and the mere silence of the legislative journals or their failure to show affirmatively that some requirement of the constitution was not complied with in its enactment, would not be sufficient to overthrow such enactment. But when the journals show upon their face that said bill did not receive the requisite vote upon its final passage, and for that reason did not pass, it is difficult to see how the official signatures could give it the force and effect of law. Judge Cooley in his work on Constitutional Limitations, page *135, thus states the rule: “If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow the requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence and adjudge the statute void. But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of the legislative body; it will not be presumed from the mere silence of the journals, that either house has exceeded its authority, or disregarded a constitutional requirement in the passage of legislative acts, unless where the constitution expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.” (People ex rel. v. Starne, 35 Ill. 121; 85 Am. Dec. 348, and note.) The act in question was known as house bill No. 5, and was introduced first, and then under a suspension of the rules was read a second time and referred to the judiciary committee. (House Journal, 23.) It was reported from [572] the committee with amendments, which were concurred in. ( House Journal, 235.) And it passed the house by the requisite majority. (House Journal, 261.) It went to the senate, where it passed through all the requisite forms until it was put upon its final passage, when it received 13 ayes to 11 nays. There were five absent and one senator was excused. “So the bill failed to pass.” (Senate Journal, 527.) It .thus appears from the vote recorded in the journal by the recital therein that house bill No. 5 did not receive the requisite vote upon its final passage, and therefore never became law. This conclusion leaves the justice’s code as it stood prior to this attempted change. This leaves section 80 still in force. That section is as follows: “The appellate court may in furtherance of justice, and upon such terms as may be just, allow the pleadings in the action to be amended so as not to substantially change the issues tried in the justice’s court, or introduce any new cause of action or defense.” It would be conceded at once that the filing of the reply did change issues tried in the justice’s court in a most material and essential particular. The issue tried in the justice’s court on the pleadings was one of law arising upon the plaintiff’s demurrer to the new matter in the defendant’s answer. Having been defeated on that issue in the appellate court, that court was without power to permit new issues to be formed and then tried for the first time. No doubt it would prove more convenient in practice if the circuit court were given the same power over the pleadings in an action removed by appeal into that court which it has in an action originally commenced there, but the legislature has seen proper not to confer it, and the same cannot, therefore, be exercised. In Moses v. The S. P. Co. 18 Or. 385, we had occasion to consider the rule of liability of a railroad company for killing stock at a place where the company is not required to fence, [573] which renders a re-statement of the law on that subject unnecessary. For the reason that the circuit court allowed a reply to be filed to the new matter in the answer, presenting issues which were not in the case in the lower court, the judgment must be reversed, and the cause remanded to the court below for such proceedings as may be proper, not inconsistent with this opinion. Bean, J. The question decided in this case was not argued at the hearing, but in our investigation became necessary to its decision; and while there is much conflict as to the right of the court to examine the journals of the legislature for the purpose of impeaching the validity of the enrolled act, as certified to by the presiding officers of the two houses, approved by the governor, and filed in the office of the secretary of state (State v. Swift, 10 Nev. 176; 21 Am. Rep. 721), as at present advised, I concur in this opinion, however with some hesitation. Lord, J., expressed no opinion, but reserved his judgment.