Fillmore v. Van Horn

Grant, J. (after stating the facts). 1. The act is attacked as not constitutionally passed, because the title was not agreed to by both houses of the legislature, and because the bill was not introduced during the first 50 days of the session. A preliminary question is raised by the attorney general that its constitutionality cannot be attacked in this proceeding; citing Curran v. Norris, 58 Mich. 512 (25 N. W. 500). That was a case where the office existed, and the question was who was entitled to fill it. It was held that the writ of certiorari could not be used to delay the proceedings, “ unless such officer has proceeded without jurisdiction, or has acted in gross violation of the statute.” If there is no law, there is no office. An unconstitutional act is.no law. There must be an office de jure to fill or there can be no officer de facto to fill it. Relator asserts the existence of an office, and his right to it. If the law under which he claims is unconstitutional, he has no standing. Eaton v. Walker, 76 Mich. 579 (43 N. W. 638, 6 L. R. A. 102); Carleton v. People, 10 Mich. 250; Norton v. Shelby Co., 118 U. S. 425 (6 Sup. Ct. 1121). In the last case it is said, at page 442: “The idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law.” Therefore the constitutionality of the act is the issue. 2. This brings us to the main question. The title to an act is required by the Constitution. It is as much a part of the act as the body thereof. A law cannot be enacted by the legislature without a title. The legislative journals must control; and if those journals show that the senate passed an act by one title, and the house by another, it must follow that the act is void, because no title has been agreed to by both houses. Simpson v. Stock-Yards Co., 110 Fed. 799. In that case the legislative journals showed that a bill for the regulation of stock-yards was passed by both houses by the same title. [57] The clerk made a mistake, in engrossing and enrolling the act, in using the title by which the journals showed it had been read a first and second time in the house. The court said it was undoubtedly a clerical error, but held the act void notwithstanding. See, also, Chicago, etc., R. Co. v. Smyth, 103 Fed. 376; State v. Brookhart, 113 Iowa, 250 (84 N. W. 1064). In this case the secretary of the senate undoubtedly made a mistake in transmitting the bill to the house by a wrong title. But the house never agreed to the title to the act to which the senate had agreed, and the senate did not agree to the title to the act as it came back from the house. One enacted a title to repeal, the other enacted no such title to the bill passed by it. The house made some amendments to the body of the bill, and those were concurred in by the senate; but the title was a different one in each house. The bill was sent to the governor for his approval, and was signed by him with a title to which both branches of the legislature had not agreed. This appears conclusively by the journals, which must control. The judgment of the court below is affirmed. The other Justices concurred.