Duncombe v. Prindle ( 1860 )

Lowe, C. J¹

The object of this proceeding is obviously to -obtain a judicial construction of the acts described in the pleadings, for the purpose of determining whether townships 90-91, of ranges 27 to 30, are within the territorial area of Webster or of Humboldt county. If in the former, the judgment below should be affirmed. If in the latter, then it should be reversed. Originally this township, with the ranges above disignated, were embraced wdthin the boundaries of Humboldt county, as defined by an act approved January 15th, 1851. At that time, by the same act, the boundaries of Kossuth and Bancroft counties, situated immediately north of Humboldt, were established. Afterwards, on the 24th of January, 1855, the legislature, by an act entitled, “ an act to extend the boundaries of Kossuth county,” declared that the counties of Kossuth and Bancroft, and the north half of Humboldt county, should be united into one county, to be called Kossuth. In the same act'it is declared, that “townships 90 and 91 of ranges 27 to 30 (being the south half,) which have heretofore been a part of Humboldt county, shall be and are hereby attached to Webster.”

Counsel for the defense claim that this last clause of the law does not constitute these two townships a part of the territorial limits of Webster, but that it simply attaches them for election, judicial or revenue purposes, and that territorially they still remain and constitute the county of Humboldt. Hence they argue, that township 90 never did form any part of the area of Webster county. To this interpretation several objections present themselves: First, That they were attached for election purposes, &c., is a matter of inference and not legislative expression; an inference too which is not warranted either by the natural import of the language used, or its grammatical construction. For instance, the expression, (referring to these townships,) “which have heretofore been a part of Humboldt county, shall be and are hereby attached to Webster,” convey quite clearly to our minds the impression that they were to constitute a part of Webster in the same sense that they had been a part of Humboldt. Second, If we adopt the construction contended for by counsel, then we must hold that the act extending the boundaries of Kossuth is unconstitutional ; for by uniting the north half of Humboldt to Kossuth, the remainder of its contents is reduced below four hundred and thirty-two square miles, which is expressly prohibited by the constitution. If we adopt the other theory, that by this act the south half” of Humboldt county was merged into Webster, as the north half had been into Kossuth, this infringement of the constitution is avoided; and the rule we recognize to be a sound one, that where a statute is susceptible of two constructions, one of which consists with the constitution, and the other violates it, that the former should be adopted by the court. We cannot therefore conclude that the legislature intended to disregard the express prohibition of the constitution, by continuing Humboldt in esse, and leaving these two townships in it as a part of its constituent being.. Resides, if they were simply attached to Webster for a specified and limited purpose as claimed, it would have been so stated expressly, as it has been in all other known cases of the kind. But counsel for the defense again insist that this must have been the intention, because on the same day was passed and approved another statute, pari materia, attaching Humboldt to Webster. But this is true also of Bancroft, although its existence as a county had been entirely merged into that of Kossuth; and this only proves that when this last law was drafted, Humboldt and Bancroft had separate existences, and when it was passed they had lost their identity by being incorporated into other counties, which was overlooked by the legislature.

There are one or two other reasons which impress our minds with the belief that these townships were attached to and made, for all purposes, a part of Webster. One is, that three years after this the legislature passed an act creating the county of Humboldt anew, thereby distinctly recognizing, as we conceive, its non-existence prior to that time. And in harmony with this idea and the facts of the case, the defendant makes the following statement in his answer, to-wit: “And said defendant further avers and says that' said township and ranges (meaning township 90 and ranges from 27 to 30,) were taken from Webster county and added to Humboldt county, by an act of the General Assembly of the State of Iowa, entitled, ‘an act to create the county of Humboldt, andlocate the county seat thereof/ approved January 28th, 1857.’’ It will be perceived by this extract from the answer of the defendant, that he gave to the act of 1855 the same construction we give it; and which it afterward received by implication from the legislature, but which, in argument by some of the counsel for the defense, is ignored.

Conceding, however, that the act of January 24th, 1855, did attach and constitute townships 90 and 91, a part of Webster county, still it is objected that this is an object distinct and different from that expressed in the title of the act, and therefore void and of no effect under the constitution. At first blush this objection would seem to be well taken. But it is asked, whether after all it is not more technical than substantial. The language of the constitution on this subject is this, that “ every act shall embrace but one object which shall be expressed in the title.” Now the legislature having the power to take the north half of Humboldt and add it to Kossuth, may properly employ all the means necessary to accomplish that end which shall not contravene the constitution. This could not be done however, and leave townships 90 and 91 remaining in Humboldt, because that would reduce this county below the constitutional number of square miles. Their annexation therefore to Webster or some other county became a necessity connecting itself with the main object, which was the enlargement of Kossuth; nor was it in the sense of the-constitution a distinct subject of legislation unconnected with the object expressed in the title.

Having now found that township 90 of ranges 27 to 30, inclusive, was in Webster county, (a fact, which although conceded in the defendants pleadings, presented to our minds the principal difficulty in the case,) we come now to inquire how, and when, if ever, it was taken from Webster and annexed to Humboldt. The defendant claims that this was done by the act approved January 28th, 1857, entitled “an act to create the county of Humboldt and locate the county seat thereof.” This act as we find it published with the statute laws of that session, does not include township 90 of the ranges aforesaid, but does define the boundaries of Humboldt as being composed of townships 91, 92 and 93 of ranges 27 to 30, which make up the four hundred and thirty-two square miles required by the constitution. But it is claimed that in the publication of this law, township 90, which was in the original bill as it was passed by the General Assembly, through mistake was left out or omitted. We have made a personal examination of the original bill, as we find it enrolled, bound up and preserved in the Secretary’s office, and have discovered no discrepancy whatever between it and the same act as published, but on the other hand an entire agreement between the two. We did not perceive any errors or omissions, or space left where the words “ township ninety,” should have been written; but it seemed to be complete, regular and fair in all its parts. This enrolled bill, thus filed and preserved in the Secretary’s office, is the authenticated copy of the real bill which the General Assembly passed, and is the ultimate proof of the true expression of the legislative will, as this court have before held; Clare v. The State of Iowa, 5 Iowa 510. And that for the obvious reason that it is the bill which received the signatures of the officers of both branches of the legislature, after a committee appointed for that purpose had compared it with the law as passed, and reported it a correct copy of the same. Behind this it is impossible for any court to go for the purpose of ascertaining what the law is. There is no other bill, original or a copy, to which the signatures of the President of the Senate and Speaker of the House of Representatives are affixed, or to which is appended the approval by the Governor. And when counsel speak of some other original bill than this, in which the township 90 was embraced, we confess we are at a loss to conceive what they mean. Are we to suppose that the enrolling clerk, and the committee appointed to examine and report upon the accuracy of his work, have all been guilty of laches or corruption, especially in the absence of any competent proof to that effect?

But the defendant insists that he has furnished such proof in the facts recited in a preamble to a certain explanatory act, subsequently passed by the legislature, on the 11th of March, 1858. And this brings us to consider the effect of this preamble as a matter of evidence. The argument is that the facts set out in the preamble import absolute verity and can not be contradicted by evidence aliunde. Indeed, this is the principal question of law raised, by the defendant’s demurrer to the plaintiff’s replication. The preamble prefixed to the explanatory act of 1858 in question alleges the existence of three important facts, as the motive or occasion for passing the act; First, That the act of 1857, creating and defining the boundaries of Humboldt county, included townships 90, 91, 92 and 93, of ranges 27, 28, 29 and 30; Second, That in printing and publishing said act township 90 was left out by mistake; Third, That the original bill, as the same was passed, had been lost. These facts were controverted by the plaintiff, in his replication, who produced a certified copy of the original bill, which clearly disproves the existence of the same. To this the defendant demurred, basing the same upon the idea that these facts are conclusive in law and can not be denied, or drawn in question. We can give no such effect or weight to facts recited in a preamble. The proposition of law raised by the demurrer is unsustained by the American authorities. Sedgwick in his late treatise on the rules which govern the interpretation and application of statutory and constitutional law, a work of a very high order of merit, says: “ That, as between individuals whose rights are affected, the facts recited ought not to be evidence. We well know that such applications-are made frequently ex parte. Once adopt the principle that such facts are conclusive, or even prima facie evidence-against private rights, and many individual controversies may be prejudged and drawn from the sanctions of the judiciary into the vortex of legislative usurpation. The appropriate functions of the legislature are to make laws to operate on future incidents, and not a decision or forestalling of rights accrued or vested under previous laws. Such a preamble is evidence that the facts were so represented to the legislature, and not that they are really true.” Pages 56-57, and authorities cited. The propriety and truth of the foregoing observations are strikingly illustrated in the-history of this case. The production of what we understand: to be tbe original bill squarely controverts every tact stated in tbe preamble. Yet we. are asked to shut our eyes to this important fact, and to believe upon tbe authority of a preamble, that no sucb law in fact ever did pass.

We notice one other position of the defence, which is, that the act of the 11th of March, 1858, at all events places the township, in dispute in the-county of Humboldt. This act is inoperative and can have no binding effect, for the reason that it was passed under the new constitution, the 30th section and 3d article of which declares that no law changing the boundary lines of any county shall have effect, until, upon being submitted to the people of the counties affected by the change, at a general election, it shall be approved by a majority of the votes of each county. It is not pretended that this was done, but this difficulty is sought to be obviated by claiming that this last act is simply explanatory of the act of 1857; that it relates back and becomes a part of that act, which was not obnoxious to this objection, because it passed under the old constitution. The error, however, of this argument consists in assuming that the facts recited in the preamble of the last act are true; and that the law of 1857 possessed doubts, omissions or ambiguities which needed explanation. Now neither the one nor the other of these hypotheses is true; and we must regard the act, with its preamble attached, as an original and independent act, and therefore void, because in conflict with the constitution. This point is one of some nicety, and was ingeniously presented by counsel; but this opinion is already too long to discuss it further. We are compelled to conclude that township 90, in ranges 27 to 30, west of the 5th principal meridian, is still in and forms a part of Webster county. Of course we can pay no attention to conjectural surmises and vague suspicions, which have been made and entertained in relation to some unfairness which may have been practiced in the final passage of the act of 1857, creating the county of Humboldt. If such was the case no evidence of the fact have been presented to us. We have had to deal with the case as made; and the record as spread before us.

Affirmed.