State v. Kiesewetter
State v. Kiesewetter
Opinion of the Court
The burden is on the relators to show that the bill became a law. It is not claimed that the bill was signed by the presiding officer of either house, or was filed among the valid acts in the office of the secretary of state in the regular
The questions then, are, whether for this purpose resort may be had to evidence dehors the journals and the roll of duly certified laws in the office of the secretary of state, and whether, notwithstanding the bill was not signed by the presiding officer of either house, and was not enrolled in the office of the secretary of state as a law, it nevertheless has the force of law? Unquestionably, the legislature intended that this bill should become a law, and unless
Section 17 of article 2 of the constitution, is as follows: “ The presiding officer of each house shall sign, publicly in the presence of the house over which he presides, while the same is in session and capable of transacting business, all bills and joint resolutions passed by the general assembly.”
No judicial interpretation has been given to this section so far as we are informed. The preceding section, which provides that every bill shall be fully and distinctly read on three different days, and that no bill shall contain more than one subject, which shall be clearly expressed in its title, etc., has been considered by this court, and the views of the court Upon it are well stated by Swan, J., in Pim v. Nicholson, 6 Ohio St. 177, as follows: “ This court held, in the case of Miller and Gibson v. The State, 3 Ohio St. 475 that the provisions of the above section, relating to the distinctness required in reading a bill, and the number of times a bill shall- be read, were, as they in fact import, intended as permanent rules for the proceedings of the houses. They are directory only, and are to be enforced by the houses, and not by judicial interposition. The further provision, in the same section, that no bill shall contain more than one subject, which shall be clearly expressed in its title, is also made a permanent rule in the introduction and passage of bills through the houses. The subject of the bill is required to be clearly expressed in the title, for the
It is entirely clear that section 17 cannot be treated as a mere guide to the action of the general assembly in order to the more full enlightenment of the members in the performance of their duties, or as a check upon them, as the signing of a bill by the presiding officer in no substantial way affects the action of the members, or relates to the passage of the bill through either body. The members, as such, have performed every duty regarding a bill prior to the time when the duty of signing by the presiding officers may be performed. This signing in'open session may, incidentally, serve to fix the attention of members "to the bill being signed, but it has a much more important purpose. It authenticates a bill, and affords a sure means of identification. No official copy is required of a bill introduced, nor is it required to be copied on the journal, and a legal standard of comparison is wanting. The signatures of the presiding officers, therefore, furnish the evidence that that which the journals show, by title and number, passed the general assembly, is this identical measure. The act thus authenticated is to be given the force of law, is to be treated as such, and to prove itself upon inspection; and this verification
Were there a provision requiring that all bills introduced should be spread at length upon the journal, and were this bill to be found copied on the journal of either house, it is probable, that, following former holdings of this court, resort might be had to that mode of identification. But no such record exists, and reliance upon title, number, and designation, for identification of contents, would, we think be inadmissible.
At the trial, the state librarian was offered by the relator as a witness, and it was proposed by the testimony of this witness to identify a copy which it was claimed had been deposited in' the state library, in compliance with section 59 of the Revised Statutes, and thus supply proof of the contents of the bill. That is to say, the court was asked to take the copy thus proffered from the state library, and, by making in it the changes which the journals of the two houses show were made while the bill was pending, make up a completed bill, and declare it law. The testimony is believed not to be competent. It was an effort to introduce parol proof, and, in effect, to try the validity of a law upon the testimony of witnesses. The section referred to requires that the clerk of each house shn.U deliver to the printer, for his use in printing, all of the papers and documents laid before the branch of which he is clerk, which are ordered by such branch to be printed; and the printer shall immediately print two hundred and forty copies thereof, of which number each of the executive officers shall receive one, and the state librarian five, which he shall preserve. Upon whom devolves the duty of delivering these copies, is left to inference. No provision is made for their certification
Whether, a provision imperative in its terms should be treated as directory or as mandatory, has been held to be a matter of éxpedieney, though Judge Cooley, in his work on constitutional limitations, observes that “ courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provision of a constitution. ” Another author says that “ the question is in the main governed by considerations of convenience and justice. ” Giving effect to the more liberal view, it may be said that if no advantage would be lost, or right destroyed, or benefit sacrificed either to the public, or to an individual by such a holding, the provision might be regarded as directory. Or, if less injury would result by disregarding than by enforcing the provision according to its letter, then it could with propriety be treated as directory merely. But if the lax rule would tend to the injury of the public, or if, applied to the facts of a given case (though possibly conducive to good results
We are reluctantly led to the conclusion that it cannot. The advantages to be derived by a recognition of this bill as a law would, we think, be far outweighed by the perils which might follow the establishment of so dangerous a precedent. As applied to this case, the result of this holding but postpones, in all probability, to the meeting of another assembly, the accomplishment of the object sought. Nor will this view necessarily work irreparable inconvenience as applied to any class of legislation. In a case where the subject-matter of a bill thus defeated is vital to the public business of the state, the authority of the governor to call together the general assembly, and give opportunity for all needed requirements to be observed, is ample. On the other hand, the importance of furnishing to the people, sources of information, certain in their character and convenient of access, as to what is, and what is not law, is obvious. All are presumed to know the law, and it is of great interest to each citizen, as well as to the public officer, that there be some authentic record to w.hich he may resort to ascertain certainly and definitely what laws are enacted by the legislature; what control him in the daily transaction of business, and of what, at his peril, he is bound to take notice. Whatever conduces to certainty in this regard, therefore, is of great moment to every person in the state, and no rule of construe
It is urged that to give controlling'effect to section 17 would be to clothe the presiding officers of the general assembly with a veto power, and such a result cannot have been intended by the convention which framed the constitution. Certainly that body did not so intend; but we think the result feared is not likely to follow. Our attention is called to the case of Leavenworth v. Higginbotham, 17 Kansas, 62. In that case the bill in question was passed, signed by the governor, and published more than eleven years prior to the decision, and all departments of the state government hacl held it valid, though it lacked the signature of the presiding officer of the senate. The court decided that “ the bill should be held to be valid, although it may not have the signature of the presiding officer of the senate affixed to it.” In the opinion, prominence is given to a consideration of the suggested dangers which would follow if the signatures of the presiding officers were deemed essential. "Whatever significance should be attached to this consideration in the newer states, we are impressed that, as applied to this state, the danger is more fancied than real. Section 17 has been in force, as a constitutional requirement, since the formation of the state,' and this is the first instance, so far as we are advised, in which there has been a failure to observe it. . If any has occurred, the learned counsel has omitted to call our attention to it. Howevei’, the obvious answer to this objection is, that confidence must be reposed somewhere; it is not to be presumed that men selected to fill places of such high trust will intentionally violate the constitution, and prove false to their oaths.
Cottrell v. The State, 9 Nebraska, 125, is cited. In that case a like provision was held to be directory. Maxwell, C. J., in the opinion says: “ The signature of a presiding officer to a bill is a mere certificate to the governor that it has passed the requisite number of readings, and been adopted by the constitutional majority of the house over which he presides. The vote upon the passage of the bill must be determined from the journals of the respective houses. And where it appears from
It appears that all due formalities had been observed as regards the act, save only the signature of the presiding officer of the senate. It had the governor’s signature, was duly enrolled in the office of the secretary of state, and it had been in force for years. The' governor’s signature apparently served, not only as showing his official assent to the measure, but as authenticating the bill itself. In this state the governor takes no part in the approval or authentication of laws. There are other notable differences between these cases and the case at bar. If a case were presented where a bill, lacking only the signature of the presiding officer of one house, had been filed by the secretary of state, published under his authority as a law and recognized as such by all other branches of the state government, and acquiesced in for years, a different question would be before us.
The two cases just referred to are the only authorities we have noticed which appear to sustain the relator’s claim, and, we think, when duly considered, they fail to do so. On the other hand, the positions heretofore assumed are believed to be in consonance with the views of text-writers and with many adjudicated cases. See Burroughs on Public Securities, 425; State v. Swift, 10 Nev. 176; State v. Rogers, 10 Nev. 250; State v. Glenn, 18 Nev. 34; The State v. Mead, 71 Mo. 266; Pangborn v. Young, 32 N. J. L. 29; Sherman v. Story, 30 Cal. 253; Mayor v. Harwood 32 Md. 471; Jones v. Hutchinson, 43 Ala. 725.
Writ refused.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.