People ex rel. Gale v. Supervisor of Onondaga , 1867 Mich. LEXIS 91 ( 1867 )

Cooley J.

I am not prepared to say that an act of the Legislature can be valid which, as engrossed for the signature of the Governor, would be void if passed by the Legislature in that form. A law must have the concurrence of the three

branches of the legislative department; and if it differs in an essential particular when presented to the Governor for his signature from the bill passed by the two houses, there is difficulty in saying that it has been concurred in by all.— Prescott v. Trustees Illinois and Michigan Canal, 19 Ill. 324. And under our constitution the title is not only important, but it is absolutely made to control; so that I do not see how any important change in the title can be said to be immaterial.

The principal difficulty with this statute, however, is that it assumes to audit and allow a private claim against the township. This is distinctly within the words of the constitutional prohibition, and I have no doubt within its intention also. The constitution meant to altogether prohibit the Legislature from assuming to pass upon private claims, and to compel their submission for adjustment to the proper state, county and township boards, as much more likely to ensure justice, besides saving the state the great expense which must attend their determination by the Legislature. The wisdom of the provision is seen in the present case, where the Legislature has assumed the statements of the applicants for the special statute as undoubted facts, and acted upon them as if proved, while the papers before us show that in some very important particulars the real facts were quite otherwise. And as the constitution plainly prohibits the legislature from auditing and allowing any private claim, I do not think we are at liberty to fritter away its effect by forced construction, and to say that after all what was meant was only such private claims as are presented against the state. The mischief to be guarded against was all the greater when a claim was against a township, having perhaps none of its citizens in the legislature to represent it, and whose complaints of injustice, if unfairly dealt by, could attract but little attention, than when presented against the state at large, where every legislator to a certain degree would be interested in scrutinizing it, and the people of the whole state would be likely to make their complaints heard in the case of any improper allowance.

Campbell J.

I am not disposed to regard the error in the title to the statute as fatal. We have certainly the right to look behind the enrolment of a statute for some purposes, in order to determine whether it passed the legislature under the conditions required by the constitution, as, for example, to ascertain what the vote was upon it. — Green v. Graves, 1 Doug. 351. And when we find that, in the submission to the legislature, there was no error in the title — inasmuch as the provision of the constitution was mainly designed to preserve them from being misled, we should not, I think, pay much attention to such a mere clerical error as suggests its own character at once on reading the bill, and' appears to be a mistake of a single letter which can mislead no one who reads the act.

I further think, in accordance with the views of my brother Cooley that the clause of the constitution prohibiting the legislature from auditing or allowing private claims is applicable to this case. The legislature is debarred directly from exercising judicial powers, and were it not that there may be found a slight difference between the auditing of accounts and powers strictly judicial, there would have been no need of an express prohibition of this kind, as it is designed to meet the same class of mischiefs. The legislature can not, or at least does not use the same means for bringing in parties and obtaining testimony which are required to do justice in ordinary cases, and there is as much danger of improper influence and management concerning claims against lesser bodies as exists concerning claims against the state. I think the law is void on that account.

Leaving the preamble and finding out of view, there is nothing in the facts to sustain the right to have this tax collected. Assuming all that is claimed, it shows only that certain persons raised money on their own credit, with some expectation that the town Avould assume it, and a town meeting subsequently voted in favor of recognizing and paying it. But under the laws townships have no power to audit accounts by town meeting, and adopting the action would still leave it necessary to have the amount audited before it could become a fixed liability. Without some legal authority, a town meeting has no more power to audit accounts than the legislature, and there has been no such legislation.

I am very strongly inclined to think that these advances are not such as could be lawfully alloAved to be ratified. Ratification can only be had where the original act Ayas one which, purported or was designed to be one of agency. The money was not raised by town authority, and, so far as we can judge from the facts, was not expended, or designed to be expended, by the town authorities. While informal town action, or that which professes to be such, may be ratified by legislative permission, I think action which was not in any way under the formal or informal direction of the town or its authorities, can not, by any process, be made town action, and can not, therefore, become chargeable as such. It is essentially private, and must remain so.

The mandamus should be denied.

Christiancy J.

agreed with Campbell J. that the error in engrossing the title to this act, was of such a nature as to correct itself when the whole statute was inspected 'and that as the act, when passed, was correct, and it was impossible to mistake its purport, the clerical error should be disregarded in this case.

He also held that, as it was not clear upon the facts returned, some of which were disputed, that the debt had ever been legally adopted as a township obligation, there was no right to a mandamus until that should be made to appear (which could not be established by the finding of the Legislature); and as a majority of the court were of opinion that the writ should not issue at all, and as he agreed it could not be granted without further showing, he concurred in denying the application.

Mandamus denied.

Martin Ch. J. did not sit.