In re Vanderberg , 28 Kan. 243 ( 1882 )

The opinion of the court was delivered by

Horton, C. J.:

The question in this case is, whether the conviction and sentence of the petitioner, Franklin Vanderberg, in the district court of Ellis county at the April term for 1882, were absolutely void. It is alleged on the part of the petitioner that there is not, and never was, any seventeenth judicial district in this state; that Ellis county, at the date of the conviction and sentence, was, and continues to be, a part of the fourteenth judicial district of the state; that W. H. Pratt was not the regular judge of the fourteenth judicial district, nor the judge pro tem. of said district, nor the judge dejure or defacto of any court or district; that at the time he was holding court in Ellis county, the regular term of the district court of Lincoln county, one of the counties comprising the fourteenth judicial district, was being held as required by law, by J. H. Prescott, the elected judge of that county and district; that all the proceedings, acts and things done and pretended to be done at the April term of the court of Ellis county for 1882, .toward restraining and depriving the petitioner of his liberty, were and are wholly illegal and unauthorized. The alleged grounds for this contention are two-fold:

First, that chapter 100, Laws of 1881, entitled “An act to create the seventeenth judicial court to provide a judge therefor, and for holding terms of court therein,” cannot be regarded as a legislative act enforcible by the courts, because it is claimed on the part of the petitioner that the act on its final passage by the house of representatives did not receive the votes of two-thirds of the members thereof, as ordained by the constitution of the state to be necessary to increase the number of judicial districts. (Sec. 14, art. 3, State Const.)

Second, that chapter 98, Laws of 1881, providing for terms of court in the fourteenth judicial district, designates that court shall be held in the county of Ellis on the fourth Monday of March and the last Monday of September in each year, and is therefore in conflict with chapter 100, Laws of 1881, creating the seventeenth judicial district and naming Ellis county as a part thereof, and fixing the time for the holding of courts therein on the fourth Monday of April and the third Monday of October of each year.

If we accept the enrolled statute embodying the act now challenged by the petitioner as conclusive evidence of thet regularity of the passage of the act and of its validity — as in many of the states the courts decide must be done — we would not be at liberty to inquire into or dispute the enactment or contents of this statute. (13 Cent. L. J. 181.) If it were st> held, it would be incumbent upon us to declare without other reason that the seventeenth judicial district had been legally created, and that at the time the sentence was passed upon the prisoner, W. H. Pratt was the judge thereof, both de jure and de facto. It is said, however, in the opinion of the Division of Howard County, 15 Kas. 194, that “we take judicial notice without proof of all the law's of our own state. All the courts of the state are required to do this, and in doing this we take judicial notice of what our books of published laws contain.” In The State v. Francis, 26 Kas. 724, it is also stated that —

“In this state, where each house is required by the constitution to keep and publish a journal of its proceedings, we cannot wholly ignore such journals as evidence, and therefore, when there can be no room for doubt from the evidence furnished by such journals, that the statute was not passed by a constitutional majority of the members of either house, then the courts may declare that the supposed statute was not legally passed, and is invalid.”

This language of the opinion is qualified, however, as follows:

“ The enrolled statute is very strong presumptive evidence of the regularity of the passage of the act and of its validity, and it is conclusive evidence of such regularity and validity, unless the journals of the legislature show clearly, conclusively and beyond all doubt that the act was not passed regularly and legally. If there is any room to doubt as to what the journals of the legislature show; if they are merely silent or ambiguous; or, if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.”

In view of these decisions of our court, we have examined with great care the original house journal of 1881, to ascertain if it establishes “clearly, conclusively, and beyond all doubt,” that chapter 100 was not regularly add legally passed. The house of representatives of the state for 1881 consisted apparently of one hundred and thirty-seven persons. At least, one hundred and thirty-seven persons attempted to take part in the proceedings of the house. Under the decision-of. The State v. Francis, supra, as the number of representatives can never exceed one hundred and twenty-five, some of these' persons must have been there illegally, and under that decision the twelve persons from counties which were not provided for by law with numbers or districts, and who were the last members admitted to seats, were not entitled to seats; and any act passed only by the assistance of their votes must be held as not having passed the house of representatives, and as void. From an examination of the house journal as published, ninety-three members voted yea and ten nay upon the passage of the act now challenged. In the yeas were included the illegal votes of Davis, Francis, Gates, Hargrave, Keeney, Montgomery, Newby, Stone, Tousley, and Turner. Two-thirds of the constitutional members of the house would be eighty-four. If the ten votes of the persons who were illegally admitted to the house were deducted from the total yeas, eighty-three only would remain, and therefore if the journal of the house as printed is conclusive, it could not be said that two-thirds of the constitutional members of the house concurred in the creation of the seventeenth judicial district, and if the printed journal of the house is a correct exemplification of the original journal, then, within the language of the opinion in The State v. Francis, supra, we would be bound to say that chapter 100, Laws of 1881, did not receive the votes of a constitutional two-thirds of the members of the house, and therefore that it did not pass the house as prescribed by the constitution. But our examination of the original journal convinces us that the printed journal is not to be taken as conclusive against the validity of the enrolled statute embracing chapter 100. Counsel for the petitioner claim that the original journal shows ninety-two votes only recorded’in favor of the passage of the bill.- The clerk,- in the printed journal, counts ninety-three votes recorded for the bill. This difference is proof that the journal is doubtful. The only way the yeas and nays were entered upon the journal of the house upon the passage of the substitute for house bill No. 119, now known as chapter 100, Laws of 1881, was by a roll of the names of all the persons admitted as members of the house being attached to the journal, and the names of the persons voting upon the measure being numbered. At least, an attempt was made to enter numbers opposite their names. These numbers opposite tbe names of persons voting on the first call of the roll, increase in regular progression of tens. The last number of each series of affirmative tens closes with the number sixty, after which five more votes are numbered, running down through the roll, and the first total of sixty-five yeas is indorsed at the foot of the roll. The votes, from sixty-five to niuetyfour, were apparently cast on the second call of the roll, or when the members appeared in the hall, as the numerals opposite the names of the affirmative voters from sixty-five to ninety-four are scattered irregularly through the roll. It is also apparent that some of the members changed their votes, and the face of the original journal shows different •counts and many attempted corrections. At the bottom of the roll the number ninety-four appears, and this number also appears opposite the name of Bennyworth, the member from Pawnee county. It is very evident to •us that ninety-four persons voted originally in favor of the passage of the act; that ninety-four votes were numbered .and counted by the clerk, or his assistant, as voting in favor of the act, and that this number was announced to the house, and that the house understood that ninety-four votes had been recorded for the bill upon its final passage. This is corroborated not only by the figures ninety-four, at the bottom of the roll, and by the figures opposite the name of Bennyworth, but also by the journal kept by the docket clerk, which shows that ninety-four votes were cast in favor of the .act. From sixty-five to ninety-four, inclusive, the numbers are regularly set opposite the names of members voting affirmatively, and the numerals ninety-four opposite the name of Bennyworth have never been changed or erased. They stand to-day as a part of the journal of the house. To our mind the natural supposition is, that in the haste of calling the roll, and in the confusion incident to the checking the names of the members voting and the marking of numerals opposite thereto, the name of some person who had voted yea was marked nay, or some member, after the count, was improperly marked as having changed his vote from yea to nay. Had the numerals ninety-four, opposite the name of Benny-worth, been changed and corrected to some other number less than ninety-four, we might suppose that the figures ninety-three yeas and ten nays were the true votes given for and against the bill, but as against the enrolled bill, we have no ■more right to assume that the ninety-four opposite the name -of Bennyworth was improperly recorded, than we have to assume that the keeper of the journal committed an error in marking the'vote of Schott as changed from yea to nay. To ignore the numerals ninety-four, opposite the name of Bennyworth, requires us to question the integrity of the journal. If it be discredited as to one name, it falls before the strength of the enrolled bill. Viewing it from any standpoint, upon its face the journal is conflicting and ambiguous. If the act upon its passage received ninety-four votes, striking from the list all of .the illegal votes pointed out, still two thirds of the constitutional members of the house concurred in its passage. As the house is constituted of one hundred and twenty-five members, eighty-four votes were sufficient. In any event, from our personal inspection, we cannot say that the original journal of the house “shows clearly, conclusively, and beyond all doubt,” that chapter 100 was not regularly and legally passed. In our opinion the enrolled statute embracing chapter 100 is too strong evidence of the regularity of the passage of that act and of its validity, to be overthrown and destroyed by the journal, as it now appears in its confused and unascertainable condition. The enrolled statute is not to be set aside upon mere guesses or surmises, nor upon a doubtful interpretation of a journal seemingly contradictory upon its face. Further, chapter 100 is now challenged before us for the first time. This statute has been recognized by both houses of the legislature; has been approved by the governor in the form as it now appears enrolled in the office of the secretary of state; has been published under the authority of the secretary of state as a valid statute; has been recognized by the legislature as an existing statute, by the act appropriating money for the salary of the judge of the seventeenth judicial district for the years 1881 and 1882; has been acted upon by the chief executive of the state, in the appointment and commission of a judge for the seventeenth judicial district; has been recognized by the people of the counties comprising that district, by the election of the presiding judge who passed the sentence upon the petitioner; and this court has upon several occasions examined and affirmed judgments in actions heard and tried by the judges of that district. Under all these circumstances we do not hesitate to say, that we would require the original journal of the house to establish, beyond all possible doubt, that the act was not concurred in by two-thirds of the constitutional members of the house, before we would be willing to disregard and treat it as naught, when it seems to be surrounded and supported by so many appearances of absolute validity. '

One thing further as to the conflict between chapter 98 and chapter 100. Both acts were approved March 5, 1881. It is contended on the part of counsel of the petitioner, that chapter 98 is the last expression of the legislative will. Even if this were true, the insertion of Ellis county in chapter 98 was evidently an inadvertence. Chapter 100 created the seventeenth judicial district, and mentions Ellis county as comprising a part thereof. It further provides for the holding of two terms of court in the county for each year. Chapter 98 provides for the terms of the court in the fourteenth judicial district, another and a different district than that in which Ellis county had’been located by chapter 100. If it clearly appears from all the sources of interpretation that a provision of a statute has been inserted through inadvertence, it will 'be disregarded. (Pond v. Maddox, 38 Cal. 572. See also Potter’s Dwarris on Stat. Construction, 183; Shrewsbury v. Boylson, 1 Pick. 105; People v. King, 28 Cal. 265; Turnpike Co. v. McKean, 6 Hill, 616; Moody v. Stephenson, 1 Minn. 401; [Gil. 289;] Winona v. Whipple, 24 Minn. 61; Smith v. People, 47 N. Y. 330.)

We must, therefore, upon this doctrine, disregard the provision relating to Ellis county in chapter 98. Of course, if chapter 100 were the last enactment of the legislature, it would be valid and binding in all of its terms, notwithstanding the provisions of chapter 98, even if none of the provisions thereof had been inserted by inadvertence.

Several other questions have been fully and elaborately presented upon the hearing of this case, but the conclusion obtained makes it unnecessary to consider them.

Nothing appearing before us -upon the record or evidence presented, warranting any judgment annulling the conviction of the petitioner, he must be remanded into custody.

All the Justices concurring.