People of the Territory ex rel. Haller v. Clayton

Zane, C. J.: The defendant moves tbe court to quash the alternative writ of mandamus issued in this case. It is alleged in the petition that the relator, S. C. Haller, was entitled to receive from the territory the fees due him as a witness before the grand jury; that the defendant, the auditor of the territory, refused to audit them, for the reason that a statute made it the duty of a court commissioner to audit and pay the claim; that said law purports to have been approved March 8, 1888; but that the same in fact was not passed or approved until the 10th day of that month; and that the session of the legislature expired by limitation, at 12 o’clock, midnight, on the 8th day of the month. The defendant moves the court to quash the writ, because the petition does not state facts sufficient to constitute a cause of action. An act amending section 1852 of the Revised Statutes of the United States, in force December 23, 1880, declares that the sessions of the legislative assemblies of “the several territories of the United States shall be limited to 60 days’ duration.” It appears that the 60 days in this case expired on March 8th. After the expiration of the 60 days, the legislature had no power to pass any bill, nor had the governor any power to approve such bill. The date of the passage and approval of the bill must be ascertained by the court. The court must take judicial notice of the evidence of the passage and approval of legislative enactments. No issue of fact as to the passage or approval of them, or as to their date, can be made upon which the parties may offer evidence. "Whenever such a question arises, the court, in deciding the issue, should take judicial notice of such facts as it may properly consider. The evidence of public laws should be preserved in public and permanent records. The facts upon which their existence depends should be accessible to all, because all are required to . know them, in order to make their transactions and their conduct conform to them; and such records should be preserved until the time has passed during which reference to them may be necessary. The authenticity of laws should not be intrusted to the memory of individuals. There — 600 — fore parol testimony cannot be received to prove tbeir passage or tbeir approval. Evidence from sucb transient, uncertain and secret source cannot be relied upon to authenticate legislative enactments. In the case of State v. Smith, 44 Ohio St., 348, the court said: “It seems to be well settled that courts will take judicial notice of all that is necessary to the authenticity of a statute.” It is said by Wharton, in his work on Evidence (section 295): “Courts will take judicial notice of the modes by which domestic laws are authenticated. Hence, an English court is supposed to be judicially acquainted with the rules, practice and prerogatives of parliament; an American court with the rules, practice and prerogatives of the federal and state legislatures to which it is subject. So, as we have seen, a court will take judicial notice of the journals of a legislature to determine whether an a'ct is constitutionally passed, or whether it has passed by reason of no.t having-been returned in proper time by the governor. There is, then, no need of stating what appears upon the journals of a legislature relative to the passage of a law. Such matters are judicially noticed without averment, and the same effect given them as if averred. . . . Out of a multitude of citations not oneis found in which any court has assumed to go beyond the proceedings of the legislature, as recorded in the journals, required to be kept in each of its branches, on the question whether a law has been adopted. . . . Imperative reasons of public policy require that the authenticity of laws should rest upon public memorials of the most permanent character. They should be public, because all are required to conform to them; they should be permanent, that rights acquired to-day upon the faith of what has been declared to be law shall not be destroyed to-morrow, or at some remote period of time, by facts resting only in. the memory of individuals.” In the-case of Fowler v. Peirce,, 2 Cal., 165, the court held that parol evidence was admissible to show that the governor’s signature to a bill purporting to have been made on the 1st day of May, and at a time when he had the right to sign it, was written in fact on the next day, and at a time when he had no power to sign it. This decision is at — 601 — variance witb tbe rule announced above. But we regard tbe case of Fowler v. Peirce as overruled by tbe later case of Sherman v. Story, 30 Cal., 253. Tbis last case bolds tbat an act of tbe legislature appearing to be properly enrolled, authenticated, and deposited witb tbe secretary of state is a record wbicb is conclusive evidence of tbe passage of tbe act, and tbat tbe same passed as enrolled; tbat neither tbe journals of tbe legislature, nor tbe bill as originally introduced, nor tbe amendments attached, to it, nor parol evidence, can be received to show tbat it did not become a law in accordance witb tbe prescribed forms, or tbat it did not become a law as enrolled. Tbe court said: “Tbe result of tbe authorities in England and in tbe United States is tbat at common law, whenever a general statute is misrecited, or its existence denied, tbe question is to be tried and determined by tbe court as a question of-law;-tbat is to say, tbe court is bound to take notice of- it, and inform itself tbe best way it can; tbat there is no, plea by which it can be put in .issue and tried as a question of fact; tbat if tbe enrollment of tbe statute is in existence, tbe enrollment itself is tbe record,' wbicb is conclusive as to what tbe statute is, and cannot be impeached, destroyed or weakened by tbe journals of parliament or any other less authentic or less satisfactory memorials;- and tbat there has been no departure from tbe principles of common law in tbis respect in tbe United States, except in instances where a departure has been grounded on or taken in pursuance of some express constitutional or statutory provision requiring some relaxation of tbe rule in order tbat full effect might be given to such provisions.” After tbe foregoing decision was rendered, section 15 of article 4 of tbe present constitution of California was adopted, viz.: “Tbat on tbe final passage of all bills they shall be read at length, and tbe vote shall be by yeas and nays upon each bill separately, and shall be entered on tbe journal, and no bill shall become a law without tbe concurrence of a majority of tbe members elected to each bouse.” Under tbis provision tbe same judge who delivered tbe opinion in tbe case of Sherman v. Story, supra, after be became judge of tbe ninth cir — 602 — cuit of tbe United States, said, in a concurring opinion, in Railroad Tax Case, 8 Sawy., 281, 13 Fed. Rep., 722: “Under tbe decisions of tbe courts upon constitutional provisions in all respects similar to tbat in tbe present constitution of California it is settled tbat tbe court, to inform itself, will look to tbe journals of tbe legislature. . . . Unless tbis mode is adopted of resorting to tbe journals to ascertain wbetber a statute has been legally passed or not, experience and tbe number of cases tbat have already arisen under similar constitutional provisions demonstrate tbat the requirements of the constitution tbat tbe vote shall be taken by yeas and nays, and a majority of the members required to vote in tbe affirmative on tbe final passage of an act, would be of little value.” Tbe case of Gardner v. Collector, 6 Wall., 499, is cited in support of tbe proposition tbat tbe court may look back of tbe statute book, and tbe original engrossed bill on file in tbe office of tbe secretary of state, and even beyond tbe journals kept by tbe two bouses. In tbat case tbe president omitted tbe year in attempting to give tbe date of bis approval of tbe act questioned. Two propositions were insisted upon — First, tbat tbe president alone could m'ake tbe record to show tbe date of bis approval; second, tbat if such record was defective in respect to tbe year, no resort could be bad to extrinsic evidence to supply tbat defect. Tbe court held tbat no provision of tbe constitution and no act of Congress imposed on tbe president tbe duty of affixing a date to his signature of a bill, and tbat tbe court might look to tbe date of tbe filing of tbe bill “in tbe office of tbe secretary of state, and tbe journals of tbe House of Bepresentatives showing tbat a message was received from tbe president January 6,1862, stating that on tbe 24th day of tbe preceding month be had approved the bill.” These extrinsic facts were not received to contradict a record made by tbe president, because be bad made none as to tbe date, nor to suppty a record tbat be was required to make, because tbe law did not impose such a duty upon him. In tbe opinion tbe case of Fowler v. Peirce, supra, was cited in support of tbe proposition — 603 — that when tbe passage of a bill is disputed, tbe court, to inform itself, may look to tbe journals of tbe legislature with respect to it, and not in support of tbe right to bear and consider oral evidence. In tbe conclusion of tbe opinion tbe .court did use tbis language: “We are of opinion,'therefore, on principle, as well as authority, that whenever a' question arises in a court of law of tbe existence of a statute or of tbe time when a statute took effect, or of tbe precise terms of a statute, tbe judges, who are called upon to decide it, have a right to resort to any source of information which in its nature is capable of conveying to tbe judicial mind a clear and satisfactory answer to such question, always seeking, first, for that which in its nature is most appropriate, unless tbe positive law has enacted a different rule.” Tbis is a broad statement, and, taken by itself, probably indicates a more general rule than was intended by the court. Reference is also made to People v. Petrea, 92 N. Y., 128. In that case an act of tbe legislature of tbe state of New York was alleged to be unconstitutional because it was a local act, and bad not been reported to tbe legislature by commissioners appointed to revise tbe statutes. Tbe defendant offered to prove by tbe clerk of tbe senate, by tbe commissioners appointed to revise tbe statutes, by tbe journals of tbe legislature, and by the original act itself, that tbe bill was not reported to tbe legislature by tbe commissioners. Tbis offer tbe trial court overruled. But tbe court of appeals said: “We think tbe offer to prove, by the journals of the legislature, and by the original act,that the act of 1881 was not reported by tbe commissioners, was improperly overruled.” No error was found in tbe ruling of tbe court excluding tbe verbal testimony offered. In tbe case of Berry v. Railroad Co., 41 Md., 446, tbe bill, as it passed tbe legislature, extended tbe time for the completion of tbe road mentioned in tbe act for five years from tbe 1st day of January, 1875, but as it appeared in tbe printed statute book, tbe extension was for five years from tbe 1st day of January, 1870. The question was’ ought tbe court, in its investigations, to look behind tbe — 604 — signature of the governor to the bill filed for record, and the imprints of the great seal? The court said: “But while the authorities just cited maintain that it is the right and duty of the court to go behind the authentication of the statute, and to receive evidence such as that furnished by the engrossed bills, with the indorsements thereon, and the journals of proceedings of the two houses of the legislature upon the question of the constitutional enactment of what purports to be the statute, they all seem to concur in maintaining that no statute having the proper forms of authentication can be impeached or questioned upon mere parol evidence. Nor do we _ decide in this case that the journals of the two houses, though required by the constitution to be kept as records of their proceedings, would be evidence per se upon which the validity of a statute having the required authentication would be successfully questioned as to the manner of its enactment. But we think the journals, in connection with other com-, petent evidence upon the subject, may be examined as means of information to aid in arriving at a correct conclusion as to what was the action of the legislature on any particular bill before it.” Prom this opinion it appears that the constitution of Maryland required the journals of the two houses to be kept as records of their proceedings. In the light of authority we are of the opinion — First, that the court cannot receive verbal evidence to prove that a law was not passed and approved on the day it purports to have been passed and approved; second, that when the passage or the approval of a law is questioned, the court may look beyond the printed statute to the engrossed bill, as approved and filed with the secretary of the state or the territory, as the case may be; third, that when the journals of the two houses showing their action are kept in pursuance of law, the court may look to such journals to ascertain whether constitutional requirements have been complied with. The common-law rule, making the engrossed bill duly signed and enrolled with the secretary of state conclusive of its authenticity, was changed in order the more effectually to secure compliance with constitutional re — 605 — quirements in enacting laws. We have found no provision in tbe organic act of tbis territory requiring tbe journals of tbe legislature to sbow tbe vote on tbe passage of a bill, or tbe date thereof. But section 1844 of tbe Revised Statutes of tbe United States does require tbe secretary of tbe territory to “record and preserve all tbe laws and proceedings of tbe legislative assembly, and all tbe acts and proceedings of tbe governor, in tbe executive department.” Tbis record tbe secretary makes as commanded by law, and under tbe sanction of bis official oatb. A record so made is entitled to more weight than the entries in tbe legislative journals not made in pursuance of positive law. Tbe law presumes that tbe acts of a public officer, in pursuance of law, and under tbe sanction of bis official oatb, are correct because he is presumed to keep his oatb and to do bis duty. A legislative enactment, approved by tbe governor, and filed and recorded in tbe office of tbe secretary of tbe territory, constitutes a record of a high order. This law appears from that record to have been duly passed by tbe legislature, and approved by the governor on tbe 8th day of March, 1888, before tbe expiration of tbe 60 days, and it so appears in the printed volume. We do not feel authorized to look beyond tbis record to tbe legislative journals, or to receive verbal testimony to support or contradict tbe record in tbe office of the secretary of tbe territory. In addition to tbe cases cited, tbe following, among others, support tbe conclusions reached above: Pangborn v. Young, 32 N. J. Law, 29; Town of South Ottawa v. Perkins, 94 U. S., 260; Post v. Supervisors, 105 U. S., 667; Green v. Weller, 32 Miss., 650; People v. Commissioners, 54 N. Y., 276; People v. Devlin, 33 N. Y., 269; Railroad Co. v. Governor, 23 Mo., 353; Com. v. Martin, 107 Pa. St., 185. The plaintiff also contends that tbe naming of tbe court commissioners in the act was an attempt to. appoint territorial officers contrary to section: 1857 of the Revised Statutes of the United 'States. That section is as follows: “All township, district and county officers, ■ except justices of the peace and general officers of the militia, shall be appointed or elected in such manner as may be provided by — 606 — tbe governor and legislative assembly of eacb territory, and all other officers not herein otherwise provided for the governor shall nominate, and by and with the advice and consent of the legislative counsel of each territory shall appoint.” If the court commissioners are public officers, and may not be regarded as district officers, the appointment in the act contravenes the section' of the Revised Statutes quoted. These commissioners come within the definition of officers. Their term of service is fixed by law, and their duties are not confined to a particular act or to any individual or individuals. Their duties are not created or regulated by contract, but are to the public. One commissioner is appointed for the Northern and one for the Southern division of the First judicial district, a third for the Second judicial district, and a fourth for the Third judicial district. It is made their duty to examine all court certificates given to jurors and witnesses, and to administer oaths to holders, and to examine as to the service performed, miles traveled, etc., and to allow the amount claimed if found correct; and if incorrect, to in-increase or decrease the sum to the correct amount. They are authorized to draw upon the auditor of public accounts for a sufficient amount to pay jurors, witnesses, and phonographic reporters, and to keep an accurate account of all moneys so coming to their hands, etc. To these commissioners the law in question intrusts the duty of ascertaining and paying the fees due the jurors, witnesses and court reporters in their respective districts. Their duties are confined to the districts for which they are appointed, and we are disposed to hold that they should,,be regarded as officers of the district to which their duties are confined. Plaintiff also urges that the act upon which defendant relies is retroactive. The letter of the first section, considered by itself, would appear to be subject to that objection. It declares that “from the 1st day of January, 1888, until the 1st day of January, 1890, witnesses for the territory in criminal cases and jurors in the district courts shall be paid the sum of two dollars per day for each day’s attendance at court, and twelve cents per mile one way for the distance necessarily traveled from his place — 607 — of residence to tbe place of bolding court.” . The other provisions of the act relate to the future. The last section, as amended, declares that the act shall be in force from and after the date of its approval, which was March 8, 1888. The services for which the fees were claimed were rendered in the preceding month, and the certificate of attendance was made and delivered to plaintiff during that month. There was a law then in force fixing the fee's of jurors and witnesses in all cases, and the last clause of section 2 of an act of Congress approved June 23, 1871, provides that the “costs and expenses of all prosecutions for offenses against any law of the territorial legislature shall be paid out of the treasury of the territory.” The plaintiff’s right to the fees had accrued and vested before the law of March 8th, supra. It remained for the legislature only to make the appropriation, and then the auditor to audit the claim, and for the treasurer to pay it. Inasmuch as this had not been done, the legislature could provide that the court commissioner might adjust and pay the claim; but the amount should be determined by the law in force at the time the services were rendered. We are disposed to hold that the law in question should be given a prospective, and not a retrospective, effect. When the services as witness were rendered, the law then in force created an obligation upon the part of the territory to pay the plaintiff the amount of his fees according to the law then in force. Good faith on its part required this much. Potter’s Dwar. St., 477, 478; Id. 162, note 9; 1 Kent, Comm., 455. The motion of the defendant to quash the writ of mandamus is allowed. HENDERSON, J., and BobEMAN, J., concurred.