State Ex Rel. Cline v. Schricker

Appellants seek to challenge the validity of certain acts of the 86th Regular Session of the General Assembly. The complaint charged in substance that House Bills numbered 379 (Ch. 257), 380 (Ch. 232), 381 (Ch. 233), and 25 (Ch. 277), and also "fifteen or twenty other bills involving expenditures and activities of various units and functions of government," were invalid for the reason that they were each passed by the General Assembly after the hour of 12 o'clock midnight, Monday, March 7, 1949, which under § 29 of Article 4 of the constitution was the time of expiration of the regular session; that in fact the General Assembly did not adjourn sine die until 5:16 P.M. Central Standard Time on Wednesday, March 9, 1949, which was a period of more than 41 hours longer than the time fixed by the constitution for the regular session; that the General Assembly stopped the clocks and timepieces at 11:22 P.M. on March 7, 1949, and remained stopped until March 9, 1949. The complaint further states that the General Assembly by its officers and employees falsely and fraudulently made official entries in the journals showing the Assembly adjourned sine die at 11:59 P.M., March 7, 1949. It also charged that the presiding officers of each of the Houses falsely, fraudulently and wilfully attested and certified as to the genuineness and correctness of said bills as having been passed by the General Assembly; that the Secretary of State has accepted and filed in his office all of the questioned enactments as certified to him by the President of the Senate and Speaker of the House of the General Assembly; and that moneys of the state will be illegally expended in accordance with these purported acts which will be a fraud on the taxpayers of the state.

The appellees filed an answer in abatement in two paragraphs. The first paragraph admitted that the journals and records of the House of Representatives and the Senate on their face show the Legislature adjourned within the term required by the constitution, and that the bills under attack were properly signed, attested and properly authenticated by the presiding officers of each House; that according to all the records said acts appear on their face to be duly enacted as required by the constitution, which is conclusive on the question as to validity of the enactment of said acts. The second paragraph in substance charges the action was in substance and truth a suit against the State of Indiana without its consent.

Appellants filed a demurrer to this designated answer in abatement, but the memorandum thereto made no objection that the matters therein pleaded should have been raised by demurrer. 1. A demurrer to an answer in abatement on the ground that it does not state facts sufficient to abate the cause of action must be accompanied by a memorandum, and a failure to specify defects or error in the memorandum waives the same.Hopkins v. Matters (1916), 62 Ind. App. 676, 112 N.E. 248; 1 Watson's Rev., Works' Practice Forms 466, § 659; 1 Lowe's Rev., Works' Indiana Practice pp. 659, 660, § 16.13. The record does not present any contention that the matters charged in the answer should have been raised by demurrer.

The demurrer to the plea in abatement was overruled, and upon failure of the appellants to plead further judgment was entered abating the action. From the record made in the trial court, 2. we are advised that the appellants and appellees considered as proper the manner used to raise the question of the validity of the acts of the Legislature, even though it was unorthodox. ". . . It has been held by this court that a party must abide by a procedure which he has induced the court to follow. In Thorne v. Cosand (1903), 160 Ind. 566, 67 N.E. 257, the appellant asked the court to submit a cause of equitable cognizance to a jury. After an unfavorable verdict and judgment, the appellant objected to that procedure. The court held that after that proceeding was had the appellant should not be allowed to question the regularity of the steps he had induced the court to take. To the same effect is Dawson v. Shirk (1885),102 Ind. 184, 1 N.E. 292.

"4 C.J. 714, § 2627, states the rule as follows:

"``Where a party voluntarily adopts a certain form of procedure or agrees to the manner in which his rights shall be submitted for determination in the trial court, he will not be permitted to complain, on appeal or error, that proceedings had in conformity thereto were erroneous.'

"Also see 49 C.J. 668, §§ 945 and 946, and authorities there collected. . . ." State ex rel. Reiman v. Kimmel (1937), 212 Ind. 639, 646, 647, 10 N.E.2d 911. The parties by their 3. conduct in the trial court and on appeal have sought a determination of the controversy on the merits, and in view of the great public interest involved in determining the validity of the acts in question, we shall decide the matter on the merits. The questions presented in this appeal are not moot even though the acts have been published, distributed and proclaimed in effect by the Governor.

"It is a maxim as old as the common law, and a rule of necessity, that the court takes judicial notice of public law; it is presumed to know what it is, and it is 4. its duty to know it." Evans, Auditor v. Browne (1869), 30 Ind. 514, 520. This court has the right to make use of any source of information which will give a correct answer to the question. State ex rel. Colbert v. Wheeler (1909),172 Ind. 578, 89 N.E. 1. In the discharge of this right and duty we have examined the enrolled acts filed with the Secretary of State, and find each of the acts sought to be questioned in this proceeding has been properly authenticated by the President of the Senate and the Speaker of the House. Although it is admitted by the issues that both the questioned acts and the House journals show all legislative action was taken before the constitutional time for adjournment, we have also examined the journal of each House and find that each shows an adjournment sine die at 11:59 P.M., March 7, 1949.

Since the decision in Evans, Auditor v. Browne (1869),30 Ind. 514, supra, this court has consistently held that a proper authentication of an enrolled act is conclusive, as a 5, 6. matter of law, that the act was duly passed in conformity to the constitution. Bender v. State (1876), 53 Ind. 254; Board of Commissioners of Madison County v. Burford (1883), 93 Ind. 383; Stout v. Board ofCommissioners of Grant County (1886), 107 Ind. 343, 8 N.E. 222;Hovey, Governor v. State, ex rel. Carson (1889),119 Ind. 395, 21 N.E. 21; State ex rel. Board of Commissioners of BentonCounty v. Boice (1895), 140 Ind. 506, 39 N.E. 64, 40 N.E. 113;Western Union Telegraph Co. v. Taggart, Auditor (1895),141 Ind. 281, 40 N.E. 1051; Lewis v. State (1897), 148 Ind. 346, 47 N.E. 675; State ex rel. Colbert v. Wheeler (1909), 172 Ind. 578, 89 N.E. 1, supra.¹ This is a rule of substantive law and not of evidence, and there is no pleading known to the law by which the existence of an act can be put in issue and tried as a question of fact. Evans, Auditor v.Browne (1869), 30 Ind. 514, supra; State ex rel. Colbert v.Wheeler (1909), 172 Ind. 578, 89 N.E. 1, supra; McCulloch v.State (1858), 11 Ind. 424; Hovey, Governor v. State (1889),119 Ind. 395, 21 N.E. 21, supra.²

Nor may this court examine into a charge of fraud committed by the General Assembly or the members thereof. "The judiciary, for constitutional reasons and upon grounds of public policy, 7. have invariably declined to inquire into the motives which prompted the official acts of the legislature or of the executive; and courts will not hear and determine a charge of fraud and corruption to annul or to supply legislative action."State, ex rel. Ketcham v. Terre Haute Indianapolis RailroadCo. (1906), 166 Ind. 580, 583, 584, 77 N.E. 1077. See alsoMcCulloch v. State (1858), 11 Ind. 424, supra.

It is not necessary in this opinion to determine the effect of an act of fraud practiced upon the presiding officers who conceivably might authenticate as genuine a bill not in the words as duly passed. There is no contention here of any such fraud as was presented in State ex rel. Mayr,Secretary of State v. Marion Circuit Court (1931),202 Ind. 501, 176 N.E. 626.

It has been the consistent position of this court that the evils attending uncertainty in ascertaining the statutory laws of the state would far out-weigh any benefits which might be obtained by permitting an impeachment of the authentication of an act. If the members of the General Assembly violate their constitutional duties on adjournment, they can be defeated the next time such offices come up for election, but the remedy is not with the courts.

". . . Public authority and political power must, of necessity, be confided to officers, who, being human, may violate the trusts reposed in them. This perhaps cannot be avoided absolutely. But it applies also to all human agencies. It is not fit that the judiciary should claim for itself a purity beyond others; nor has it been able at all times with truth to say that its high places have not been disgraced. The framers of our government have not constituted it with faculties to supervise co-ordinate departments and correct or prevent abuses of their authority. It cannot authenticate a statute; that power does not belong to it; nor can it keep the legislative journal. It ascertains the statute law by looking at its authentication, and then its function is merely to expound and administer it. It cannot, we think, look beyond that authentication, because of the constitution itself. If it may, then for the same reason it may go beyond the journal, when that is impeached; and so the validity of legislation may be made to depend upon the memory of witnesses, and no man can, in fact, know the law, which he is bound to obey. Such consequences would be a large price to pay for immunity from the possible abuse of authority by the high officers who are, as we think, charged with the duty of certifying to the public the fact that a statute has been enacted by competent houses. Human governments must repose confidence in officers. It may be abused, and there may be no remedy." Evans, Auditor v. Browne (1869),30 Ind. 514, 526. See also Wigmore, Evidence (3rd Ed.) § 1350.

In view of the law establishing the conclusive regularity of the acts in question, it is unnecessary to determine the contention that the action was an unauthorized suit against the state. Appellants have presented no error in this appeal. Therefore, the judgment is affirmed.

Gilkison, C.J., dissents with opinion.

¹ The constitutional requirement for authentication is contained in § 25 of Article 4. "A majority of all the 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."

² "The Courts of justice are bound, ex officio, to take notice of public acts, without their being pleaded, for they are part of the general law of the land, which all persons, and particularly the judges, are presumed to know. Public acts cannot be put in issue by plea. Nul tiel record cannot be pleaded to a public statute; the judges are to determine the existence of them from their own knowledge." 1. Kent's Commentaries (14th Ed.) pp. 619, 620.