Weeks v. Smith , 81 Me. 538 ( 1889 )

Haskell, J.

The writ of mandamus is authorized by R. S., c. 77, § 5; but, as that statute does not provide- in what behalf the remedy may be had, the rules of the common law apply.

A private person may move for the writ, in proper cases, when his personal rights have been invaded beyond those rights that he enjoys as a part of the public and that are common to every one; but, when the common right is invaded, it is a public grievance, and the remedy must be asked in behalf of the public> and by the proper officer, who is required by law to prosecute in the state’s behalf.

If then, the right be a public right only, the attorney” for the state must move for the writ; and this he must do in the state’s behalf, in good faith, asking for no more than he believes the public weal to demand. Sanger v. County Commissioners, 25 Maine, 291.

This application is signed by Stephen H. Weeks, who informs in the name of and by authority of the attorney general. That officer, however, appears and resists the application. It seems as if this resistance must work a discontinuance of the relator’s petition and end the case.

But, waiving any irregularity in the proceeding, the court considers it best to decide the only remaining question in the case, viz. i Whether “an act to regulate the practice of medicine,” supposed to have been enacted in 1.887, is a statute of the state.

This is a judicial question, and lias been so regarded from the time of horn-books. Saunders said at the bar more than three centuries ago in the time of Edward VI, (1558):

“And as to the statute, you judges have a private knowledge and a judicial knowledge; and of your private knowledge you cannot, judge, but may use your discretion. * * * For the judges ought to take notice of statutes which appear to them judicially, although they are not pleaded.” And it was so held in the common bench, Partridge v. Strange, Plow. 83. See also the case of The Prince, 8 Coke, 28. (8 Jac. 1606.)

A judicial knowledge does not result from plea and proof; but comes from an understanding of public laws and records, of the methods of the executive and legislature, from a knowledge of history and of historical facts, and of matters of public notoriety and interest; and commands inquiry from the widest field of general information.

In the Duke of Norfolk's case, 1 Dyer, 93, (1 Queen Mary, 1558), it being much debated among the judges, whether royal assent had been given to an act of parliament through letters patent, bearing the sign-manual of Hen. VIII, for want of the genuine signature of the king, inasmuch, first, as it was written beneath the tests of the patent, whereas he was used to put it above the head; and second, because the writing was so perfect that it could not have been written by a man so ill and near his-death as the king was, for he died the same night; the clerk of parliament brought the original record of the act before the judges for their inspection of it.

In King v. Arundel, Hob. 108, (14 Jac. 1617), the validity of a private act of parliament being called in question before the Lord Chancellor and Coke and Hobart, chief justices, they, each more suo, proceeded to inform themselves of it by consulting the original roll and the journals of parliament.

In Rex v. Jeffries, 1 Strange, 446, (7 Geo. 1721.) The original parliament roll was referred to, to correct an error in printed statutes.

So, in Rex v. Robotham, 3 Burr. 1472, (4 Geo. III, 1764), the original act of parliament was examined and Lord Mansfield, and his associates declared its true construction, notwithstanding a manifest error in it.

The result of all the authorities upon this question is well stated by Mr. Justice Miller, of the supreme court, in Gardner v. The Collector, 6 Wall. 505. He says, p. 511:

“We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, the 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 the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.” Post v. Supervisors, 105 U. S. 667. State v. Wagner, 61 Maine, 178.

Although the question to be here decided is a judicial question, the legislature not having enacted any rule touching the effect to be given to those considerations from which a conclusion must be reached, the rules of the common law must control so far as they can be of any aid.

The first and best evidence of a statute is the enrolled act, accomplished by the deposit of the original act, when approved by the governor, in the office of the secretary of state, who, by the Constitution, Art. V, § 4, is required to “carefully keep and preserve the records of all the official acts and proceedings of the governor and council, senate and house of representatives and, by R. S., c. 1, § 4, is required to give written notice to tlm senate and house of the approval of all public acts by the governor; and, by R. S., c. 2, § 44, is to cause to be printed all public laws passed at each session of the legislature within thirty days after the close thereof.

The deposit of a statute in the secretary’s office is equivalent 4 to the English custom of enrollment; and the original act thereby 'becomes the record; precisely as a private act of the English parliament has been held to be the record of parliament without enrollment; for it is not customary to enroll private acts, but only to deposit them with the clerk of parliament*

The houses of parliament were not required by law to keep journals; and these, therefore, have been held not to be records, but remembrances only, that expired when parliament dissolved. But our constitution, like the constitution of the United States and of most or all of the sister states, requires both branches of the legislature to keep journals of their proceedings, thereby making them public records to be looked to, when no higher or better source remains from which to establish the validity of a statute.

But when the original act, duly certified by the presiding officer of each house to have been properly passed, and approved by the governor, showing upon its face no irregularities or violation of constitutional methods, is found deposited in the secretary’s office, it is the highest evidence of the legislative will, and must be considered as absolute verity, and cannot be impeached by any irregularity touching its passage shown by the journal of either house.

Legislative journals are made amid the confusion of a dispatch of business, and are therefore much more likely to contain errors than the certificates of the presiding officers are to be untrue. Moreover, public policy requires that the enrolled statutes of our state, fair upon their faces, should not be put in question, after the public have given faith to their validity. No man should be required to hunt through the journals of a legislature to determine whether a statute, properly certified by the speaker of the house and president of the senate and approved by the governor, is a statute or not.

The enrolled act, if a public law, and the original, if a private act, have always been held in England to be records of the highest order, and, if they carry no “death wounds” in themselves, to be absolute verity and of themselves conclusive.

In King v. Arundel, Hob. 108, the validity of an act of parliament came in question because of a suggestion that, although the act made no mention of a proviso, yet the indorsement upon it made in the lower house indicated its passage in that house with a proviso, and that it had not received the assent,of both houses without the proviso.

The act, being a private act, as customary, had been properly filed with the clerk of parliament and by him labelled and sealed, but not enrolled as public acts are, and thereby became the original record.

The lord chancellor and chief justices sought information from the original act and the journals of parliament and said:—

“Now journals are no records, but remembrances for forms of proceedings to the record; they are not of necessity, neither have they always been. They are like the dockets of pronotaries, or the particular to the king’s patent. Co. Lib. 2, 34, b. and 16 Lliz. 331, of the particular. The last intended parliament, 10 Jac., if you be judged by the journal, it was a large and well occupied parliament, yet, because no act passed nor record is of it, it was resolved by all the judges to be no parliament.

“The journal is of good use for the observation of the generality and materialty of proceedings and deliberations as to the three readings of any'bill, the intercourses between the two houses and the like ; but, when the act is passed, the journal is expired. And in" this journal there appears but one reading of the bill in the upper house when it passed, which is unlikely. But if the record of the act itself carry its death wound in itself, then it is true that the parchment, no nor the great seal, either to the original act, or to the exemplification of it, will not serve as in the 4 H. VII, 18, when the act was by the king with the assent of the lords (omitting the commons,) and was judged therefore void. And ihe that observes the case of 33 H. VI, 17, which was the only ,case relied upon by defendant’s counsel, shall find it so; and upon this rule the doubt to be conceived, soil., upon the parliament roll itself, not upon the journal.”

. The two leading cases in this country that hold to this doctrine are Pangborn v. Young, 32 N. J. L. 29, and Sherman v. Story, 30 Cal. 253. The New Jersey case so carefully considers the question and reviews the authorities that its conclusion is irresistible, that, under a constitution like our own, an enrolled statute can not be set aside by resort to journals of the legislature or other parol evidence. The court says:—

“The court.can not try issues of fact; nor, with any propriety, could the existence of statutes be made dependent upon such investigations. With regard to matters of fact, no judicial unity of opinion could be expected, and the consequence would necessarily be, that the conclusion of different courts, as to the legal existence of laws, from the same proofs, would be often variant, and the same tribunal, which to-day declared a statute void, might to-morrow be compelled, under the effect of additional evidence, to pronounce in its favor. 'The notion that the courts could listen upon this subject to parol proof is totally inadmissible, and it therefore unavoidably results, that if the journal is to be taken into consideration at all, its effect is uncontrollable; neither its frauds can be exposed, nor its errors corrected.” * * * *

“The prerogatives, to make, to execute, and to expound the laws must reside somewhere. Depositaries of those great national trusts must be found, though it is certain that such depositaries may betray the confidence thus reposed in them. In the frame of our state government, the recipients and organs of this threefold power are the legislature, the executive and judiciary, and they are co-ordinate — in all things equal and independent; each, within its sphere, is the trusted agent of the public. With what propriety, then, is it claimed that the judicial branch can erect itself into the custodian of the good faith of the legislative department ? It is to be borne in mind that the point now touched does not relate to the capacity to pronounce a law, which is admitted to have been enacted, void by reason of its unconstitutionality. That is clearly a function of judicature. But the proposition is, whether, when the legislature has certified to a mere matter of fact relating to its own conduct and within its own cognizance, the courts of the state are at liberty to inquire into or dispute the veracity of that certificate ? I can discover nothing in the provisions of the constitution, or in the general principles of government, which will justify the assumption of such superior authority. In my opinion, the power to certify to the public laws itself has enacted is one of the trusts of the constitution to the legislature of the state.”

The California court says:—

“Better, far better that a provision should occasionally find its way info the statute through mistake, or even fraud, than that every act, state and national, should at any and all times be liable to be put in issue and impeached by the journals, loose papers of the legislature and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.”

The court of Ohio in State v. Smith, 44 O. 349, says:—

“Public policy requires that the .authority 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 contrast with these sound doctrines, compare the mischiefs flowing from the series of decisions of the Illinois supreme court, holding a printed statute of the state, that had been solemnly certified and signed by the presiding officer of each house and approved by the governor, and filed and published as law, to be void, because the legislative journals did not show all constitutional requirements to have been had in its passage, and consequently, that municipal bonds, issued in conformity with the published statute, were void in the hands of innocent holders, who thereby suffered irreparable loss in trusting to a published statute of the state.

Moreover, the supreme court of the United States was compelled to sustain these decisions because they treated entirely of state questions of which the decision of the state court was conclusive. Post v. Supervisors, 105 U. S. 667, and cases there cited.

In the case at bar, the act in question is found in the secretary’s office, the archive of the state. Upon it is indorsed the certificate of the presiding officer of each house of the legislature, under date of March 17, showing that the bill having had three several readings in the house and two several readings in the senate passed that day to be enacted. Upon it is also indorsed a certificate of the secretary of the senate of the same date. “Returned to the senate by the governor. Signature refused. Failed of a passage over his veto.”

Tliis act witli the indorsements upon it is a record of the highest order, and, under the doctrines above declared, is absolutely conclusive, unless upon its face it bears its own “death wound.”

An inspection of the act discovers above the certificate of the secretary of the senate and under the certificates of the presiding officers of both houses the words, “Approved, March 16, 1887,” and the signature of the governor with a heavy line in ink drawn through the March 16 and the name of the governor.

This supposed infirmity may explain itself, for the date of the supposed approval appears to have been the day before the bill passed either house of the legislature to be enacted, as if the bill by mischance had been prematurely sent to and by mistake signed by the governor, who, upon discovering the error, corrected the same by making the erasure and returning the bill to the legislature to be put upon its final passage.

But however tliis may be, accompanying tbe original act is found tlie veto message of the governor, under date of March 17, that had been returned with the act to the senate, with his objections as required by tbe constitution. This is also a record of high order, and most completely cures the supposed irregularity shown upon the face of the act, and is conclusive evidence that the same was returned to the senate without executive approval. No act of the legislature can become a statute when the governor withholds his approval and seasonably returns the same to the proper house with his objections. This act was returned to the proper branch of the legislature on the same day of its passage by the governor with his veto. That was a deliberate act, solemnly done, by the chief executive of our state, and has passed into a record so complete and conclusive, that no evidence of a lower grade can bo permitted to overthrow it. He alone was Busted by our people to wield the veto power; and his own solemn declaration of the exercise of that power, within constitutional limits, is as conclusive upon the judiciary, a co-ordinate branch of the government, as the certificates of the presiding officers of the senate and house are conclusive of the passage of an act therein.

The signature of the governor to an act of the legislature is conclusive evidence of executive approval against every one but himself. He alone should be permitted to dispute it, and only-then, -while he holds control of the act, and before he shall have deposited the same in the archives of the state; for then it becomes operative, as expressing the legislative will in the form of a statute. People vs. Hatch, 19 Ill. 283. It has then passed under the control of a constitutional officer whose duty is to. “carefully keep and preserve” it. He is neither required to enroll it, by copying it upon a book of records, nor to enter its receipt upon a special book kept in his office for that purpose; and whatever books of that sort he does keep for his own convenience and to aid in the proper dispatch of business are simple remembrances, of no more probative force than other parol evidences of equal credit.

The relator seeks to overturn the solemn record that stands against him, by the testimony of the governor’s private secretary and other witnesses, (the governor being dead,) whose evidence is supposed to show that the governor approved the act by signing it and leaving it upon his table in the executive chamber to be taken to the secretary’s office, in the usual course of business, where it was taken during the governor’s absence at dinner, but who, upon his return, immediately called for the act, and on the same day returned it to the senate with his veto.

Had the act been deliberately deposited in the secretary’s office by the governor, it is not to be presumed that the secretary of state would have surrendered it and allowed it to have been taken from his custody. On the other hand, if by mistake it was left in his office without authority from the governor, it could hardly be considered as the deposit of a document in his custody, and therefore did not become the record of a statute that if lost or destroyed could be declared by the court from its judicial knowledge as an existing law, under the doctrine of the case of The Prince, 8 Coke, 28. There it is said: “For God defend, if the record of such acts shall be lost, or burnt by fire or other means, that the same shall be to the general prejudice of the commonwealth; but although it be lost or burnt, the judges, by printing or by the record in which it is pleaded, or by other means, may inform themselves of it.”

The act in question has been neither lost nor destroyed, but is now a solemn record in the secretary’s office showing that it never became a statute; and the parol testimony relied upon to establish a lost or destroyed record is incompetent, inasmuch as in seeking to set up a lost record it flatly contradicts an existing one.

The oases relied upon by the relator do not controvert our view of the law, but rather confirm it.

The first case cited upon this point shows that the governor had signed an act of the legislature and deliberately deposited it in the state archives as an approved act, and thereafterwards, without withdrawing the act from the custody of the secretary of state, sent a veto message to the legislature stating that he had approved the act, but objecting to some of its provisions. Of course, the veto came too late. The record was conclusive. State v. Whisner, 35 Kan. 271.

The second case cited shows that the legislature had passed an act and sent it to the governor for his approval, but, before he acted, recalled it by a joint resolution, and he thereupon returned it without approval or disapproval; and the court held that it became a law without executive approval. All these facts appeared by the records of the legislature. Wolfe v. McCaull, 76 Va. 876.

The third case cited shows that the president had approved an act of congress, that took effect upon its passage, without affixing the year; and the supreme court declared the date of its passage. The original record was imperfect, and the judges sought information from the journals of congress, the records of the department of state, and the message of the president to congress stating the date of his approval of the act. All the best evidence in existence, used to supplement an imperfect record, not to contradict and destroy one. Gardner v. The Collector, 6 Wall, 499.

And so it is with all the other cases cited by the relator, except the Illinois bond cases before referred to, and a series of decisions in New York relating to what is known as “two thirds bills,” where the court allowed the journals of the legislature to overcome the certificates of the presiding officers of the two houses, as showing that these bills, appropriating money for local or private purposes, did not pass each house by a two-thirds vote as required by the constitution. But in these cases, so far as the reports of them show, the certificates did not state the passage of the bills by a two-thirds vote, but only that they passed, &c., so that these cases may not be regarded as authorities against the doctrine here laid down. People v. Allen, 42 N. Y. 378. People v. The Commissioners, 54 N. Y. 276. People v. Petrea, 92 N. Y. 128.

The opinion of the justices in New Hampshire touching the bank cashiers’ act seems to hold to the same doctrine of the Illinois bond eases; but it is to be remembered that the opinion was given without the aid of arguments at the bar, and, therefore, is of less weight than a decision considered in the light of solemn argument. 35 N. H. 579.

Writ denied.

Peters, C. J., Walton, Daneorth, Virgin and Emery, JJ., concurred.