Imagens das páginas
PDF
ePub

inquired into the jurisdiction of the House of Representatives, denying at the same time that the right to punish for contempt could derive any authority from English precedents, since from time immemorial Parliament has been a High Court of Judicature. The Court asserted that, if the House of Representatives is to punish for contumacy as a witness, the testimony must be required in a matter in which the House can properly proceed. In the case in question the investigation was found to be of a judicial nature and in excess of the power of the House. The warrant for the prisoner's arrest was therefore void.

The state courts were quick to adopt the reasoning in Kilburn v. Thompson and to inquire into the lawfulness of legislative contempt. The principle followed was that the houses of the legislature are free to punish recusant witnesses only if the information sought is in the aid of legislation, otherwise such punishment is an invasion of the judicial department.14 But the doctrine that the power to command respect is obviously so essential to the enlightenment and guidance of the legislature that it has always been exercised without question remained unshaken. The constitution does not create the power, but fixes and limits the mode and duration of punishment for disobedience.15

THE ATTITUDE OF THE NEW YORK COURTS

The New York courts of late years have seemed unwilling to concede to the legislature an inherent or even a common law right to punish for contempt. The constitution of this state, contrary to prevailing form, does not authorize in specific terms a single house of the legislature to punish for contempt or to expel members, and is likewise silent as to a member's privilege from arrest, although elsewhere these prerogatives are generally held to inhere without express constitutional grant. Since 1830 these powers have been

14 In re Chapman, 166 U. S. 661; In re Gunn, 50 Kan. 155; Burnham v. Morissey, 80 Mass. 226; People v. Keeler, 99 N. Y. 463; Matter of Barnes, 204 N. Y. 108; People v. Webb, 5 N. Y. Supp. 855; Ex parte Parker, 74 S. C. 466; Sullivan v. Hill, 79 S. E. 670 (W. Va.); Ex parte Watters, 144 S. W. 531 (Tex.).

15 Ex parte McCarthy, 29 Cal. 395; Lowe v. Summers, 69 Mo. App. 637; State v. Matthews, 37 N. H. 450; Ex parte Dalton, 44 Ohio St. 142; Ex parte Parker, supra; Sullivan v. Hill, supra; The power to punish may be delegated to committees by statute. Ex parte Parker, and Sullivan v. Hill; also strong dissenting opinion, In re Davis, 58 Kan. 368.

[ocr errors]

provided for by general statute, and the offenses enumerated in the acts have been declared to be the only ones which either house is authorized to punish as contempts and to take the place of the numerous offenses treated by Parliament as such. The statute conferring the power, judicial in nature, is not void, however, as invading the judiciary department since it is necessary and appropriate to legislative action.16 More recently the Code of Civil Procedure1 has given over the duty of punishing recusant witnesses to the courts, and the Court of Appeals holds that in so doing the legislature demonstrated its lack of an inherent power to punish for contempt in disobedience to its process.18 This is a serious inroad upon the prevailing theory of prerogative, if indeed the concept is not completely shattered. The legislature is considered to have acquired through its general legislative power the privileges not specifically conferred by the constitution. They are not exclusive or inalienable and are defined by statute law.19

PARLIAMENTARY PROCEDURE NOT SUBJECT TO JUDICIAL REVIEW

With a view towards maintaining the effective independence of the coördinate departments of government in the discharge of their appropriate duties, the courts have generally permitted the legislatures themselves to interpret constitutional provisions concerning methods of procedure. For example, the courts of several states will not admit evidence to impeach the validity of an act on the ground that some constitutional requirement as to the manner of passage has not been observed. If the act is regularly enrolled, authenticated by the presiding officers of both houses, and signed by the governor, the evidence is conclusive that all constitutional

16 People v. Keeler, supra; See also People v. Webb, supra. The legislature

has only such powers to punish as have been conferred upon it by statute. 17 ¶854 to ¶856.

18 Matter of Barnes, 204 N. Y. 108.

19 In a recent Texas case the court held that in accordance with the doctrine of the separation of powers the legislature's right to punish for contempt was derived solely from the constitutional grant, Art. III, sec. 15, which authorizes each house to punish persons not members for disrespectful or disorderly conduct in its presence, or for obstructing any of its proceedings. Failure to answer the questions of a committee does not constitute obstruction of legislative proceeding and the legislature was not competent to adjudge for contempt for so doing.. Ex parte Walters, 144 S. W. 531. This denies to the legislature the right to punish indirect contempts.

provisions governing procedure have been fulfilled, and it cannot be impeached by the journals. The theory adopted is that the legislators are bound by their oaths to support the constitutional mode of procedure and, although disregard constitutes breach of duty, the presumption must always be that the coördinate branch has fulfilled its duty.20 Any other interpretation leads to uncertainty as to what is law and ends logically in the power to impugn the journals.21

This follows the English precedent, established in 1617, that the Journals of Parliament are not records but "remembrances for the form of proceeding to the record," and cannot weaken or control the statute, which is a record to be controlled only by itself. "When the act is passed the Journal is expired!"22 It is interesting to notice the circumstances which surrounded this decision. The case involved a statute passed in the reign of Henry VIII. As no journal was kept for the Commons until the time of Edward VI, the journal of the House of Lords was pressed to show from entries thereon that the bill came up from the lower house with an amendment which was a prerequisite to the latter's approval of the measure. The bill, as passed by the Lords and enrolled under the Great Seal, contained this amendment cancelled and suit was brought to invalidate the act, but without success. In the absence of any record from the lower house it is not strange that the act as delivered to the Chancery should be held to be the only true record, yet many of our state courts still follow this precedent by refusing to admit the journals to impeach a properly certified act.23

JOURNALS PRESUMED FAVORABLE TO THE ACT

Another view, which has been expressed by the courts of more than half the states, is that the properly certified act is only prima

20 Kilgore v. McKee, 85 Pa. St. 401.

21 State v. Jones, 6 Wash. 452. In Field v. Clark (143 U. S. 649) the Supreme Court considered that it was advisable to make the certificate of the presiding officers the evidence instead of journals kept by minor officials, who were liable to make mistakes.

[blocks in formation]

23 Yolo County v. Colgan, 132 Cal. 265; Eld v. Gorham, 20 Conn. 16; Miller v. Oclwein, 55 Iowa 706; Schutt v. State, 173 Ind. 689; Owensboro v. Barclay, 102 Ky. 16; Swann v. Buck, 40 Miss. 268; State v. Beck, 25 Nev. 68; Power v. Kitching, 10 N. D. 254; Mason v. Cranbury Twp., 68 N. J. L. 149; Narregang v. Brown County, 14 S. D. 357. It is believed that the above comprise those states holding the enrolled act conclusive.

facie evidence of its validity and that recourse may be taken to the journals to see if all constitutional provisions relative to procedure have been observed. The presumption, of course, is always favorable to the act, but this may be overthrown by affirmative evidence on the journals. But it must appear affirmatively and beyond all doubt that the act was not properly passed. If the journals are silent or ambiguous it must be presumed that the constitution was followed. For example, if the journals show that a bill failed to receive a constitutional majority on final passage and the words "so the bill failed to pass" were entered, the bill never became law, although this could not be presumed from mere silence.24 In like manner the courts will not consider the fact that notice of introduction of a local or private act was omitted although the constitution may require it to be published. The advertisement of such notice in the constitutional manner will be presumed and the journals need not show it.25

Although it usually cannot be assumed that constitutional requirements were omitted because a record of every step stipulated

24 Currie v. Southern Pacific Co., 21 Ore. 571. The following cases illustrate the points involved: C. B. & Q. v. Smythe, 103 Fed. 376; Gibson v. Anderson, 131 Fed. 376. In re Duncan, 139 U. S. 449 (Federal Courts adopt adjudication of state courts). For acts of Congress the enrolled bill is sufficient, Field v. Clark, 143 U. S. 649. Ex parte Howard & Co., 119 Ala. 484; Andrews v. People, 33 Colo. 193; State v. Francis, 26 Kan. 724; Attorney-General v. Rice, 64 Mich. 385; State v. Field, 119 Mo. 593; Colburn v. Mcdonald, 72 Neb. 431; Territory v. O'Conner, 37 N. W. 765; State v. Smith, 44 Ohio St. 348; Hiskell v. Knox Co., 177 S. W. (Tenn. 1915) 483. Of course if the constitution stipulates entry in the journal the journal must show the entry.

25 Vann v. State, 65 Fla. 160; Critcher v. Crawford, 105 Ga. 108; Bray v. Williams, 137 N. C. 387. In order to make the requirement of notice effective Alabama included in her constitution, adopted in 1901, a clause which prescribes that the evidence of the publication of notice shall be spread on the journals and directs the courts to pronounce void any private or local law for which the journals do not show that notice was published. Numerous acts have thus been nullified.

See Kumpfe v. Irwin, 140 Ala. 460.

But acts have been held invalid because the requirement of notice was not observed, Ashbrook v. Shaub, 60 S. W. (Mo.) 1085; Attorney-General v. Tuckerton, 67 N. J. L. 120; Chalfant v. Edwards, 173 Pa. St. 246; here the fact of no notice was admitted by both parties and the court accepted their admission. In New Jersey this was held insufficient to overthrow the prima facie evidence of the act (Freeholders v. Stevenson, 46 N. J. L. 173). The fact of no notice is hard to show if the courts accept the journals as final.

in the constitution does not appear in the journals,26 the situation changes when certain facts are obliged to appear thereon. Such facts can be shown in no other way and their failure to appear on the journals will invalidate the act, and no presumption arises from the enrollment of the act.27

The trend of recent decisions has been towards permitting resort to the journals to ascertain if the constitutional forms of procedure were observed, and away from the English view that the act is the only record. Indeed the courts of two states have gone so far as to demand that the journals must show affirmatively every step prescribed by the constitution. Failure to do so is conclusive evidence that the step was not taken, regardless of whether or not the constitution explicitly orders entry thereof. Therefore, the express provision of the constitution for the entry of the ayes and noes on the journal does not imply that other steps need not be taken, the conclusion being that if facts are not set forth they did not transpire.28

This would seem the sensible view if effect is to be given to articles in the constitution designed to cure flagrant evils in parliamentary practice. If recourse is had to the journals they should be considered as a true and complete account of the legislative body, and omission therefrom of a step made mandatory by the constitution should be conclusive evidence that it was not taken. Journals might then be kept with greater care, and this in turn would promote closer adherence to constitutional methods.

CONSTITUTIONAL PROVISIONS SOMETIMES DIRECTORY

The view sometimes taken by the courts that constitutional directions concerning procedure are directory merely and not man

26 Presumed that ayes and nays were taken on final passage of a bill although journal was silent, State v. Rogers, 22 Ore. 348. The same when journals fail to show three readings required by the constitution. See 44 Cent. Digest; Statutes, par. 17.

27 Ex parte Howard, 119 Ala. 484; State v. Swan, 51 Pac. (Wyo.) 209. Cotton Mills v. Waxhaw, 130 N. C. 293.

28 Cohn v. Kingsley, 5 Idaho 416. In Brown v. Collector, 5 Idaho 589, the journal did not show that the bill had been read by sections as the constitution required. See also Spangler v. Jacoby, 14 Ill. 297. In Ryan v. Lynch, 68 Ill. 160, the journal did not show that the bill had been read on three different days. People v. Bowman, 247 Ill. 276; Neiberger v. McCullough, 253 Ill. 312. The journal must show that the bill and amendments were printed.

« AnteriorContinuar »