State ex rel. Attorney General v. Buckley , 54 Ala. 599 ( 1875 )

STONE, J.

The Constitution of 1875 introduced certain new regulations to be observed by the general assembly in the enactment of laws, not theretofore known in our constitutional history. Among these new regulations are the following, found in Article IV: '

Sec. 19. . . No bill shall be so altered or amended on its passage through either house as to change its original purpose.

Sec. 20. No bill bhall become a law until it shall have been referred to a committee of each house, and returned therefrom.

Sec. 21. Every bill shall be read on three different days in each house, and no bill shall become a law unless on its final passage it be read at length, and the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journals.

Sec. 22. No amendment to bills by one house shall be concurred in by the other, except by a vote of a majority thereof taken by yeas and nays, and the names of those voting for and against recorded on the journals, and reports of committees of conference shall in like manner be adopted in each house.

The convention of 1875, in section 2 of the same article, retained the clause found in the corresponding article and section of the Constitution of 1868, that “ each law shall contain but one subject, which shall be clearly expressed in its title; ” but the later Constitution contains certain exceptions to this rule, not expressed in the former one.

The foregoing clauses have for their main controlling aim and purpose—

First. To fasten an individual accountability on the several members of the legislature, by requiring the action or non-action of each to appear on the journal.

Second. To prevent ‘ hodge-podge ’ and injurious combinations, by confining each law to one subject.

Third. To prevent hasty and inconsiderate legislation, surprise and fraud, by requiring bills to be read on three several days in each house, referred to a committee of each house, and returned therefrom.

That these constitute the main objective ends of these constitutional innovations must be apparent to every one. Hence, the convention confided to the legislature no power or discretion to dispense with the constitutional rule requiring a reading in each house on three several days.

The inquiry naturally presents itself, what intendments, if any, are to be indulged for or against the constitutionality- of legislative enactments? On the question of the yeas and nays required to be spread on the journal, there can be no reasonable ground for doubt. - The journal is the record which the legislature keeps, and is required to keep of its ■ proceedings. Like all other records required by law to be kept, it imports verity. Taking into account the character of the body whose record it is, a co-ordinate department of the government, we hold that it imports absolute, indisputable verity. The Constitution, then, requiring that the yeas and nays shall be matter of record, no other evidencie can be received of this requirement, nor can its want be supplied by intendment. Of this fact the record [journal] must speak, and if silent, the fact, in'" legal contemplation, does not exist.

• The intendments, however, in reference to the other provisions of the Constitution above copied, are different. The judicial department will presume compliance with them by the legislative department, unless the contrary is shown to be the case. — Cooley Con. Lim. 139.

When a bill is referred to a committee, it is within the discretion and power of such committee to report it back with or without amendment. The amendments reported may be so numerous as to require or suggest that the committee report an amendatory or substitutional bill. If in so doing, they do not so far depart from the bill referred as to offend against the provisions of section 19, article 4 of the Constitution, such reported bill will take the place of the one referred, and will not be remitted to the status of a new bill, introduced for the first time. This is only amendment, which is always allowable at that stage of the bill.- — See Cushing Law and Prac. Leg. Assemblies, § 2203. To hold otherwise would greatly impede, if not hinder, legislation.

In voting, in one house, on amendments adopted in the other, and in voting on reports of committees of conference, the yeas and nays are required to be taken, and spread on the journal. These, if they occur in the progress of the bill, the journal must affirmatively show, under the rule declared above.

What we understand as the “final passage ” of a bill, under section 21, article 4 of the Constitution, is the vote on its passage in either house of the general assembly, after it has received three readings on three different days in that house.

With the exception of the above innovations in the process and course of legislation, the regulations remain substantially as they were before the adoption of the Constitution of 1875.

The objection has been urged that the act “to provide for the impeachment and removal from office of the officers mentioned in section 2 and section 3 of article 7 of the Constitution of Alabama,” Sess. Acts 1875-6, p. 277, contains more subjects than one. ■ We can not assent to this. The whole subject of the act is impeachment, its trial and punishment.

_ We find nothing in the enactment of the act under discussion which violates any of the constitutional provisions above set out.

Article YII of the Constitution of 1875 relates to impeachments proper. It is confined to that subject, and, in its several sections, makes provision for every official misconduct, or disqualification, which, under our system, .authorizes impeachment. That supreme, and, in many respects, severe remedy, can not be invoked or applied under our system, otherwise, or to a greater extent than its provisions authorize. After the adoption of our Constitution, impeachment, save as therein provided for, ceased to be a part of our jurisprudence. To hold otherwise would force the decision, that the remedy therein provided is cumulative only, and that impeachment of all civil officers can still be prosecuted before the senate as a court of impeachment. The framers of the Constitution, while they introduced some features that were novel, intended to occupy the whole ground of impeachable offenses, and to interdict all modes of trial not therein preserved and provided for. Their language forces this construction. — See Ikelheimer v. Chapman, 32 Ala. 683, and authorities cited.

Under article 7, section 1 of the Constitution, it is declared that “the governor, secretary of state, auditor, treasurer, attorney general, superintendent of education and judges of the supreme court, may be removed from office . by the senate, sitting as a court for that purpose,” &c.

Sec. 2. “The chancellors, judges of the circuit courts, judges of the probate courts, solicitors of the circuits, and judges of the inferior courts from which an appeal may be taken directly to the supreme court, may be removed from office . . by the supreme court, under such regulations as may be prescribed by law.”

Sec. 3. “ The sheriffs, clerks of the circuit, city or criminal courts, tax collectors, tax assessors, county treasurers, coroners, justices of the peace, notaries public, constables, and all other county officers, mayors and intendents of incorporated cities and towns in this State, may be removed from office . . by the circuit, city or criminal court of the county in which such officers hold their office, under such regulations as may be prescribed by law ; Provided, That the right of trial by jury and appeal in such cases be secured.”

A very marked difference is observable in the language of these three sections. The first is complete and self-executing. No legislation, in the form of regulations or otherwise, is necessary to put it into full operation. As to the officers therein named, it neither provides nor contemplates any new tribunal, or new forms of remedy or proceedings.

It is different with sections 2 and 3. They introduce a system in many respects new in our jurisprudence. "While they declare a tribunal before which each officer therein named may be impeached, refer with sufficient certainty to the offenses or causes for which impeachment will lie ; and in the 4th section fix a maximum beyond which punishment shall not be extended, still they provide no machinery or mode of procedure, by which parties may be brought to trial under those sections. The “regulations ” are left, to be prescribed by the legislature. Impeachment, and all incidents attending it, are so unlike prosecutions, suits and trials in courts of common law jurisdiction, whether criminal or civil, that the practice in the latter can afford no sufficient guide for a trial in the former. Consequently, no proceedings could be instituted until there was legislative action, prescribing the regulations. Till then, sections 2 and 3 of article 7 remained inert.

It results from what we have said that as to the officers enumerated in sections 2 and 3, the senate — the tribunal formerly authorized to try most of them on articles of impeachment — was disrobed of that power, and with it all machinery for the trial of such offenses ceased to exist by the adoption of the Constitution of 1875. The courts, on which that jurisdiction was thereby conferred, being without the requisite regulations for the conduct of such trials, were inert and powerless in the premises, until there should be appropriate legislation to carry those sections into effect.

In the Constitution of Mississippi, adopted in 1833, the following clause was inserted:

“ The introduction of slaves into this State, as merchandise, or for sale, shall be prohibited from and after the first day of May, eighteen hundred and thirty-three,” with a certain proviso, not material to the present inquiry. No statute was passed giving effect to this constitutional provision until 1837. In 1836 slaves were carried into the State of Mississippi for sale, and were sold on time, the purchaser, Brown, giving his note for the purchase money. Suit was brought on the note against Groves, one of the indorsers, in the circuit court of tbe United States, and the illegality of the contract, under the provisions of the Constitution above copied, was pleaded in bar. The case was carried to the supreme court of the United States, and was there argued with distinguished ability by some offthe ablest counsel this country has produced. It was ruled that because the clause of the Constitution contained the words “ shall be prohibited,” it was inoperative until the • legislature acted upon it. The court said this language was directory to the legislature, and was a command to it to do certain acts. It was further held that although the legislature of Mississippi, on the 13th of May, 1837, and before that suit was brought, enacted a law, and therein “enforced the prohibition of importation [of slaves] for sale by severe penalties,” still, this contract, which was a promissory note given in 1836 for the purchase of slaves imported into that State in disregard of the Constitutional provision above, was a valid and binding contract, and a recovery was had upon it.— Groves v. Slaughter, 15 Pet. 449.

This principle was reaffirmed in the following later cases, all of which arose on the same provision of the Mississippi Constitution: Rowan v. Runnels, 5 How. 134; Truly v. Wanner, Ib. 141; Sims v. Hundley, 6 How. 1; Hardeman v. Harris, 7 How. 726. The opinion in three of the four cases last cited was delivered by Chief Justice Taney, and in the fourth one (Truly v. Wanzer) by Justice Grier.

In re Griffin, 2 Amer. Law Times Rep. 94, the question was made loefore Chief Justice Chase, whether the 3d section of the 14th article, amendments to the Constitution of the United States, was self-executing, or whether it required an act of congress to give it effect, so as to remove from office persons who came within its provisions. The language of said section is as follows:

“ No person shall . . hold any office, civil or military, who having previously taken an oath as an . . executive or judicial officer of any State, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress may, by a vote of two-thirds of each house, remove such disability.”

Judge Sheffey, a judge of a circuit court of "Virginia, and obnoxious to the constitutional provision above copied, had sentenced petitioner to imprisonment, and he sought, under habeas corpus, to be relieved from such imprisonment, on the ground that Judge Sheffey had ceased to be judge, by operation of the constitutional amendment above copied. Judge Chase ruled that “ persons in office by lawful appointment or election, before the promulgation of the fourteenth amendment, are not removed therefrom by the direct and immediate effect of the prohibition to hold office contained in the third section. Legislation by congress is necessary to give effect to the prohibition by providing for such removal.”

In Pearce v. Pope, 42 Ala. 319, the same principle was affirmed by this court. See, also, Prater v. Darby, 24 Ala. 496, overruling Trotter v. Blocker, 6 Por. 260.

It will be seen that the provisions of the Mississippi Comstitution, and of the fourteenth amendment, copied above, are much more nearly self-executing than sections 2 and 3, article 7 of our Constitution. Still, as affecting contracts made, or liabilities or forfeitures incurred, they were held to be inert and inoperative until, by legislation, vital force and energy were given to them.

It results from what we have said above, that from the time the Constitution of 1875 became operative — December, 1875 — until the approval of the statute March 7th, 1876, although the powers of the senate to hear and try impeachment of the officers mentioned in sections 2 and 3 had been taken away, the necessary regulations did not exist to enable the courts of law to exercise the jurisdiction which had thus been taken away from the senate. Hence, during that interval, there was no tribunal clothed, or rehabilitated, with the active powers of which the senate had been disrobed, which could hear and determine cases arising under sections 2 and 3, article 7 of the Constitution.

The present proceedings are instituted under the act “ to provide for the impeachment and removal from office of the officers mentioned in section 2 and section 3 of article 7 of the Constitution of Alabama,” approved March 7th, 1876. See Pamph. Acts, 277. That is the first and only statute enacted, to give force and activity to the sections of the constitution therein named. Several of its provisions are assailed as unconstitutional, and, in this connection, it is contended for defendant that impeachment is a criminal prosecution, and that in construing said statute, we must conform to the rules which govern in the construction and administration of criminal enactments.

For the information, it is claimed that impeachment under our constitution is only a civil suit, and that the statute under discussion must be construed according to the rules applicable to civil remedies.

Impeachment, like most of our proceedings, civil and criminal, came to us from English jurisprudence. In England it was regarded and treated as the highest form of criminal prosecution. There, on conviction, the severest penalties of the law could be inflicted. — See Parliamentary History of England, Yol. 26, 1218, et seq. ; 4 Black’s Com. 259; 2 Hale Pleas of Cro. 150; Comyn’s Big. Title, Parliament L.

Under the Constitution of Alabama, article 7, section 4, penalties in cases of impeachment “ shall not extend beyond removal from office, and disqualification from holding office under the authority of this State, for the term for which he [the officer impeached] was elected or appointed.”

The Constitution of the United States, artitle 1, section 3, subdivision 7, contains precisely the same limitations on the measure of punishment in impeachment as that found in our Constitution, save that the disqualification to hold office may, under it, be extended during the life of the offender.

Mr. Story, in his commentaries on the Constitution,‘section 688, after stating that in England “ articles of impeachment are a kind of bill of indictment, found by the commons, and tried by the lords,” adds : “ In the Constitution of the United States, the house of representatives exercises the functions of the house of commons, in regard to impeachment ; and the senate, the functions of the house of lords, in relation to the trial of the party accused. The principles of the common law, so far as the jurisdiction is to be exercised, are deemed of primary obligation and government. The object of prosecutions of this sort in both countries, is to reach high and potent offenders, such as might be presumed to escape punishment in the ordinary tribunals, either from their own extraordinary influence, or from the imperfect organization and powers of those tribunals. These prosecutions are, therefore, conducted by the representatives of the nation, in their public capacity, in the face of the nation, and upon a responsibility which is at once felt and reverenced by the whole community. The notoriety of the proceedings, the solemn manner in which they are conducted, the deep extent to which they affect the reputations of the accused, the ignominy of a conviction which is to be known through all time, and the glory of an acquittal which ascertains and confirms innocence, — these are all calculated to produce a vivid and lasting interest in the public mind, and to give to such prosecutions, when necessary, a vast importance, both as a cheek to crime and an incitement to virtue.”

The same author, in section 798, says: “It is the boast of English jurisprudence, and without it the power of impeachment would be an intolerable grievance, that in trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail.” — See, also, sections 759, 764, 781; 1 Bish. Cr. Raw, § 915 (362); 9 Appleton’s Amer. Cyclopaedia, 197; 4 Kent Com. (marg.) 289; Bonv. Law Die. “Impeachment.”

The authorities above hold that removal from office, and disqualification to hold office, are criminal punishment. But the doctrine has been carried much farther.

In ex parte Garland, 4 Wal. 333, it was shown that Mr. Garland had, before the war, been licensed to practice law in the federal courts. Having subsequently participated on the side of the Confederates in the war between the sections of the Union, the question was whether he should be allowed to practice his profession, without taking the oath prescribed by the act of congress of January 24th, 1865. That act declared that “no person shall be admitted as an attorney and counsellor to the bar of the supreme court, or to the bar of any circuit or district court of the United States,” &c., “or be allowed to appear and be heard by virtue of any previous admission,” &c., “unless he shall have first taken and subscribed the oath . . that he has never voluntarily borne arms against the United States since he has been a citizen thereof; that he has voluntarily given no aid, countenance, counsel or encouragement to persons engaged in armed hostility thereto,” &c. It was ruled by the court that to take away the right to practice law, guarantied to Mr. Garland by his license previously obtained, was punishment for past conduct; that it imposed a punishment for some of the acts specified, which were not punishable at the time they were committed, and to other of the acts it adds a new punishment to that before prescribed, and it is thus within the inhibition of the Constitution against the passage of an ex post facto law.” The only punishment which the act imposed, was a deprivation of the right to practice law in the United States courts.

To the same effect as the case above, and for the same reasons, are the cases of Cummings v. State of Missouri, 4 Wal. 277; Ex parte Wm. Law, 35 Geo. Rep. 303; Impeachment of Andrew Johnson; Bev. Code, § 3755; Ex parte Dorsey, 7 Por. 293. The case last cited was decided by this court near forty years ago, and has never been overturned. In his opinion, Mr. Justice Goldthwaite says: “ I have omitted any argument to show that disqualification from office, or from the pursuits of a lawful avocation, is a punishment; that it is so, is too evident to require any illustration; indeed, it may be questioned whether any ingenuity could devise any penalty which would operate more forcibly on society.” Mr. Justice Ormond concurred with him in the opinion that the statute they were construing, whose only penalty was disqualification to hold office, or to practice law, was “highly penal.”

We feel constrained to hold that impeachment, under our Constitution, is a criminal prosecution.

Section 7 of the bill of rights, distinguishes between criminal prosecutions, which may lye conducted without indictment, and those which can be conducted only by indictment. In all cases falling within the latter class, the accused is entitled to a trial “by an impartial jury of the county or district in which the offense was committed.” In cases falling within the former class, he has no right to demand a jury, unless some other clause of the constitution secures to him the right. Impeachment falls within the class first named; and in proceedings under section 2 of article 7, the accused has no constitutional right to demand a trial by jury. This conclusion is very much strengthened by the varying phraseology found in sections 2 and 3.

Certain rights, however, are guarantied fry the accused in all criminal prosecutions. Among these is the right “to be confronted by witnesses against him.” The inquiry arises, what is meant by the language, confronted by the witnesses against him ? Evidently, the same meaning, scope and construction must be given to this clause, whether it arise in a criminal prosecution by indictment, or without indictment. The language precludes any other. If, then, we hold that depositions taken at a time and place where the accused may be present, and there confront the witness, may be used against him in a criminal prosecution, conducted without indictment, we are forced to hold that testimony thus taken can be used against him when he is tried on indictment. This would be repugnant to all our experience and notions of jury trials in criminal cases, and is equally opposed to the precedents and authorities on the question. The rule requires that the witnesses shall be produced in court, and there examined in the presence of the court, the jury and the accused. — See Sto. Constitution, § 1791; Whar. Am. Cr. Law, § 667; 1 Bish. Cr. Prac. § 1090; Cooley Cons. Lim. 318.

In the Impeachment of the Earl of Middlesex, in 1624, it is said the depositions of witnesses were merely read by the clerk. — LHallam’s Cons. History, 364. Mr. Hallam remarks in regard to this, that the “fundamental rule of English law, which insists on the viva voce examination, was then unknown, or dispensed with in political trials.”

There are a few exceptions to this rule, growing out of necessity. But the presence and viva voce examination of witnesses against the accused, is never dispensed with from mere motives of convenience, without the consent of the accused. — See, for the exceptions, 1 Bish. Grim. Procedure, § 1099.

We hold, then, that testimony taken by examiners, not in the presence of the court, is not a compliance with section 7 of the bill of rights, notwithstanding the accused may have notice of time and place, and may be present at the examintion.

It is urged in support of the information in this case—

First, that the constitutional requirement above can be secured to the accused, by requiring the examiner to examine the witnesses in the presence of the court, where the defendant can and will be confronted by the witnesses against him.

Second, that if sections 6, 7 and 8 of the act of March 7th, 1876, be unconstitutional, the only effect is to expunge them from the statute; and this court will then be left in possession of the common law power, incident to all courts of original jurisdiction, of calling witnesses before it, and there examining them viva voce.

To the first of these positions we answer, the language of those sections clearly and explicitly forbids such construction. The examiner may be appointed “in term time, or vacation,” by the court, or a justice thereof; he must take and certify the evidence, “by such day as may be fixed in said order of appointment” — and “the charges shall be tried by the court on such evidence so taken and certified.” The examiner has power “ to compel the attendance of witnesses by attachment, and to punish for contempt by fine or imprisonment in the county jail, and to administer oaths to witnesses.” And, “from the rulings of the examiner on any question of the admissibility and legality of evidence offered, either party may reserve an exception, to be decided by the supreme court.” The unmistakable intention of the legislature, as gathered from this language, was that the testimony should be taken and certified by the examiner apart from the court; and we could not call witnesses before us, without doing violence to many of the provisions of the statute.

Answering the position stated second above, this is not a court of original jurisdiction, save in a few specified cases. To summon witnesses before us, and examine them viva voce, is not one of the common law powers of this court.

But the following is a full and complete answer to each of said positions. The Constitution requires us to try impeachments “under such regulations as may be prescribed ly law.” The directions found in sections 6, 7 and 8 of the statute we are considering, are the regulations which the legislature has prescribed. Whether constitutional or otherwise, they are tbe only regulations furnished us, on the several subjects embraced therein. If constitutional, we are bound to follow them. If unconstitutional, then we are, to that extent, without regulations, unless we provide them ourselves. These would not be regulations prescribed by law.

The demurrer is sustained to each count of the information, and the same is quashed.