Prescott v. Board of Trustees , 19 Ill. 324 ( 1857 )

Breese, J.

From the agreed case, it will be perceived the lots, about which this controversy has arisen, were appraised under the act of the General Assembly, entitled “ An Act to provide for the completion of the Illinois and Michigan canal, and payment of the canal debt,” approved February 21st, 1843, and as amended by the act of March 4th, 1843. Subsequently, on the 5th of March, 1851, the board of trustees, defendants in error, proceeded to have these lots re-appraised, claiming the right so to do, in virtue of the third section of the act entitled “ An Act in relation to the Illinois and Michigan canal and canal lands,” approved February 14,1851.

Such an act is to be found in the statute book; (Laws 1851, page 90) but in reality, there is no such law in existence, and never has been. Its history is correctly stated in the agreed case, as we have ascertained by a careful examination, not only of the printed journal, but of the original manuscript journal of the session of 1851.

A bill with this title passed the Senate, and was reported to-the House on the 11th February, 1851, where, on the same day, it had two readings, and was referred to the standing committee on canal and canal lands.

On the 13th February it was reported back, and ordered to a third reading, at which stage of the bill a member moved to-strike out the third section, which was agreed to, and the bill thus amended passed the House by yeas 53, nays 9. (House Journal, pp. 332, 346).

On the same day, the amendment was reported to the Senate,, by message from the House, that “ the House had concurred with the Senate in the passage of the following bills, to wit:- ‘ An Act in relation to the Illinois and Michigan canal and canal lands.’ Amend by striking out third section.” (Senate Journal,, 338). No further action of the Senate on the bill is shown by the journal, but on the same day, “ Mr. Kuykendall, from the committee on enrolled bills, reported as correctly enrolled, and this day laid before the Governor, the following bills, to wit: ‘ An Act in relation to the Illinois and Michigan canal and canal lands.’ ” lb. 354.

On the 15th February the Governor, by his private secretary,, informed the Senate, by message, that he had approved and signed certain bills, among them “ An Act in relation to the Illinois and Michigan canal and canal lands.” Ib. pp. 416, 417.

From this department it passed, like all other bills approved, to the proper depository, the office of the Secretary of State, and duly copied for the printer, with the third section remaining in it, as we find it in the statute book.

This section, thus stricken out by the House, forms no part of the bill, nor has the remainder of the bill any vitality, as it did not, when amended, receive the constitutional action of the Senate. The whole thing is a nullity.

As that section conferred the power of re-appraisal, and it having no legal existence, the action of the board of trustees under it is also a nullity, and the claimants, Arnold and Prescott, having succeeded to the rights of the pre-emptors, under the act of 1843, were entitled to purchase at the appraisal under that law.

That the court can and will look behind a printed statute to the journals, is fully established by the case of Spangler v. Jacoby, 14 Ill. R. 297.

As this is the only point made for our consideration, we affirm the judgment of the Circuit Court.

Judgment affirmed.