State Ex Rel. Mayr v. Marion Circuit Court , 202 Ind. 501 ( 1931 )

The relator seeks a writ to prohibit the Marion Circuit Court from (a) exercising further jurisdiction over the subject-matter of a cause pending therein, wherein the city of Muncie is the plaintiff and the relator is defendant, and to prohibit said court from (b) trying and determining the issues of said cause, (c) from issuing any injunction restraining the relator from publishing in the acts of 1931 a certain House Bill, No. 6, which is alleged by said city of Muncie never to have been legally enacted and to have been signed by reason of fraud practiced upon the President of the Senate and the Speaker of the House, but alleged by said relator to be legal and valid and one proper for publication in the acts, and (d) to restrain said court from citing relator for contempt for disobedience of a temporary injunction already issued by said court prohibiting him from publishing said House Bill.

Relator's petition shows that the temporary injunction referred to was issued by the Marion Circuit Court on April 13, 1931. Respondent's return shows such order to read in part as 1. follows: "The parties now in open court agree that a temporary injunction be made and issued in this cause. It is therefore considered, ordered," etc. The relator, having agreed to the issuance of the temporary injunction, will not, in this proceeding, be heard to contest it and to seek immunity from contempt proceedings in the event he violates it.

Section 1244 Burns 1926, provides that this court may grant writs of prohibition for two purposes: (1) In aid of this court's appellate jurisdiction, and (2) to restrain certain trial courts to their respective lawful jurisdictions. The time has passed for an appeal to be taken from the granting of the temporary injunction, and the only question before this court is whether the Marion Circuit Court is clearly without jurisdiction in the case above referred to now pending before it.

This court would be justified in holding that the action of relator in the lower court should estop him from applying here for a writ of prohibition. By agreement, he submitted to the 2. issuance of a temporary injunction by the lower court, and thereby to the jurisdiction of that court, and he has waited until that court has decided against him on his demurrer to the plaintiff's complaint before coming into this court and alleging that the lower court is without jurisdiction. Only the public importance of the question involved and the public necessity for expediting the publication of the acts of 1931 has impelled us to enter upon a consideration of the points discussed by counsel.

The city of Muncie, which has been exercising complete control over bus lines operating therein (under an exception contained in a section of the Moorhead Amendment of 1925 to the Shively-Spencer Utility Law of 1913, § 5, ch. 46, Acts 1925, § 10168 Burns 1926, see Denny v. Brady, Rec. [1928],201 Ind. 59, 163 N.E. 489), brought its suit in the Marion Circuit Court to prevent the Secretary of State from publishing as a law House Bill No. 6, which would divest all cities of such power of control. The complaint charges that House Bill 6 is only a pretended act and that it appears in its present form as a result of a conspiracy of persons, and of fraud and mistake of fact in the procuring upon the enrolled act of the purported signatures of the President of the Senate and the Speaker of the House.

Respondent files as an exhibit to its return herein the affidavit of the President of the Senate stating "that, at the time said bill . . . was presented to me, it was represented that [it] was enrolled in the form as the same had passed the Senate. . . . I signed said . . . bill . . . upon the representation that . . . (it) was in the form and contained the amendments of said Senate . . . and in the mistaken belief that [it] . . . included all of the amendments thereto . . . and . . . I did not discover until said bill had been so signed by me, that [it] . . . had not in fact passed said Senate." It is alleged in respondent's return that the Speaker of the House of Representatives (whose affidavit could not be obtained because he was at the time in Europe) signed the bill because it was represented and presented to him as being the bill that passed the House and Senate, and that he did not discover until later that it had never passed the Senate; that the House passed a resolution to recall the bill from the Governor, and that the Speaker would never have signed the instrument had he known it had never been passed or adopted by the Senate.

It is also alleged that both houses of the General Assembly, after the fact had been discovered that the bill as signed was not the bill that was passed, recalled, or did all in their power to recall the bill; that the Senate and House and the presiding officers thereof have repudiated and disclaimed the bill as it now appears, and have set aside and avoided any authentication there may have been. The relator here does not assert that House Bill 6 as it appears in his office was ever passed by the General Assembly.

Section 25, Art. 4, Constitution 1852, § 128 Burns 1926 provides that:

"A majority of all members elected to each house shall be necessary to pass every bill or joint resolution; and all bills and joint resolutions so passed shall be signed by the presiding officers of the respective houses."

An enrolled bill, properly authenticated, approved and deposited with the Secretary of State is conclusively presumed by the courts, in a majority of the jurisdictions where the 3. question has been decided, to have been regularly enacted, and the courts will not go behind it and look at the legislative journals or other records. 36 Cyc. 971. In a minority of the jurisdictions, the presumption that the enrolled bill is regular is rebuttable, and the courts may go behind it and look at other records. 36 Cyc. 972. This court, since 1869, has followed the former, "the Enrolled Act Rule," as against the latter, "the Journal Rule."

Relator, in support of his application for a writ of prohibition and relying upon the Enrolled Act Rule, contends that the judicial department of the State of Indiana has no power to inquire into the fact whether the General Assembly, the legislative department, has acted to pass a law, when that act is authenticated by the signatures of the presiding officers of both houses of said assembly. He relies principally upon the cases ofEvans v. Browne (1869), 30 Ind. 514, 95 Am. Dec. 710; Board, etc., v. Burford (1884), 93 Ind. 383, and State, ex rel., v. Wheeler (1909),172 Ind. 578, 89 N.E. 1, 19 Ann. Cas. 834. In Board, etc., v.Burford, supra, the court said: "Judicial investigation stops with an examination of the title and contents of the act, and the evidence of its due attestation by the signatures of the Speaker of the House of Representatives and the President of the Senate, and its acceptance and filing, as an act of the Legislature, by the Secretary of State."

The weighty reason for the rule thus stated is the independence of the two co-ordinate branches of government, the legislative and the judicial, which prevents the courts from litigating purely legislative matters, and this reason seems, in most jurisdictions, to outweigh the fact that the courts in some instances, by their intervention, might prevent the enforcement of laws that were never in fact legally passed.

But the case now pending in the Marion Circuit Court presents a question that differs materially, in at least three important respects, from the cases which lay down the Enrolled Act Rule:

(1) The action in the Marion Circuit Court, by a city which will be materially affected by the bill in the hands of the Secretary of State if it becomes a law, is a direct attack on that bill, instituted before such purported act has acquired any force or effect by publication and promulgation.

(2) The plaintiff in the circuit court attacks not merely the fact that the bill was not regularly passed, but he attacks theattestation of the bill. His attack on the attestation is based on the charge that the signatures of the Speaker of the House and the President of the Senate were obtained by fraudulentrepresentations and mistake of fact. He alleges that the bill so signed was not the bill which the Speaker and the President intended to sign, that, in reality, the signatures, as that term is defined by law, were never affixed to the bill now in the hands of the Secretary of State.

(3) The plaintiff in the circuit court relies upon the alleged fact that the certification (if any) by the Speaker and President was rendered null by the subsequent action of the House and Senate — that there is now no certification.

The question of whether, in any attack that may be made on a law, it is permissible to go behind the signatures of the President and Speaker to the journals of the Senate and House has been discussed by the parties in this case, and we have noted the Indiana cases bearing on the subject, but, in the view we take, it is unnecessary to decide anything on that subject at this time and we do not do so.

We may grant that courts cannot look behind the bill to the legislative proceedings when the act is duly and lawfully attested, yet, when the very fact of the attestation of a 4. bill is alleged to be due to fraud and mistake of fact or to have been recalled, we believe that the courts have the right and the duty to determine such questions. Ancient maxims of the law are.

"Qui per fraudem agit, frustra agit."

(What a man does fraudulently he does in vain.)

2 Rol. Rep. 17.

"Fraus et dolus nemini patrocinari debent."

(No one should encourage fraud and deceit.)

3 Co. 78.

"Dolus et fraus una in parte sanari debent."

(Deceit and fraud should always be remedied.) Noy — Max. 45.

These maxims should prevail, and their application is not prevented by the rule of public policy hereinbefore referred to.

The statements of courts referred to by relator, that the question of whether or not an act of the General Assembly is a part of the law is a question of law and not of fact were 5. not made in direct and timely proceedings which attacked the very signatures relied upon to give validity to the acts. We cannot agree with relator that, in a cause like this, "the courts cannot . . . set the same aside for fraud or mistake." In our opinion, the Marion Circuit Court has jurisdiction to hear and determine the equitable proceeding now pending before it.

Having jurisdiction of the subject-matter of such case and of the parties, and having (by the agreement of the parties) issued a temporary injunction from which no appeal was taken, it 6. may now again be stated for an additional reason that the Marion Circuit Court will not be prohibited and restrained from holding for contempt anyone who disobeys such temporary injunction.

Relator contends that in publishing the acts he is completing the legislative function, and that, in his performance of that legislative duty, he cannot be interfered with by the 7. courts. In this, he is in error, first, because he is an administrative officer performing an administrative duty, and, second, because, under the system of checks and balances in our republican form of government, the determination by the Marion Circuit Court of the question presented to it is not an interference with the legislative department.

Relator assumes that the effect of the temporary injunction of the Marion Circuit Court against the publication, etc., of House Bill 6 prevents the publication, etc., of all the other 8. acts of the 1931 session of the General Assembly. This assumption is incorrect. The Constitution provides that:

"No act shall take effect until the same shall have been published and circulated in the several counties of this state by authority, except in case of emergency; which emergency shall be declared in the preamble or in the body of the law." § 28, Art. 4, Constitution, § 131 Burns 1926.

The statute provides that the Secretary of State:

"shall deliver to the state printer, at the earliest day practicable, copies of all acts . . . as they are passed by the general assembly . . . superintend the printing and binding . . . and deliver the proper number to the respective counties, as required by law." § 11646 Burns 1926. "to the clerk of the Circuit Court of each county," etc. § 11652 Burns 1926.

It has been held that portions of the acts of a session may be published and circulated in advance of other portions of such acts, McCool v. State (1856), 7 Ind. 378; State v.Dunning (1857), 9 Ind. 20; Bravard v. Cincinnati, etc., R.Co. (1888), 115 Ind. 1, 17 N.E. 183.

Public policy and welfare, as well as the statute, demand that the acts of the Legislature be promptly printed, distributed and placed in effect, and where, as here, the publication of 9. only one act has been held up by an injunction, there is no reason why the Secretary of State should not proceed as the law directs with the remainder of the acts. If the ultimate outcome of the suit pending in the Marion Circuit Court is adverse to the plaintiff therein, and it is found that House Bill 6 should be printed and distributed it can then be "published and circulated in the several counties of this state by authority" by the Secretary of State.

The writ of prohibition is denied.