| Show IMPORTANT DECISION sustaining TUE OF ex judge powers little scheme knocked in abe head the territorial supreme court met tuesday afternoon and after delivering two opinions and the transaction of some other business adjourned until july ath at 10 a m the most important of the two opinions delivered is that in the case of haller vs the opinion was delivered by chief justice zane and was concurred in by justices boreman and henderson it is quite lengthy the following being merely a synopsis the defendant moves the court to quash the alternate writ of mandamus issued in this case it is alleged in the petition that the relator S C smaller was entitled to receive from the territory the fees due him as a witness before the grand jury the defendant abe auditor of the territory refused to audit them for the reason that a statute made it the duty of a court commissioner to audit and pay the claim that said law purports to have been approved march ath 1888 but that the same in fact was not passed or approved until the day of that month and that the session oi the legislature expired by limitation at 12 midnight on the ath day of the month the defendant moves the court to quash tho writ because the petition does not state facts sufficient to constitute a cause of action an act amending section 1852 of the Revised statutes of the united states in force december 1880 declares that the sessions of the legislative isla tive assemblies of the several territories of the united states shall be limited to sixty days duration it appears that the sixty days in this case expired on march ath after the expiration of sixty days the legislature had no power to pass any biff nor had the governor any power to approve such bill the date of the passage and approval of the bill must be ascertained by the court the court must take judicial notice of the evidence of the passage and approval of legislative enactments no issue of fact as to tho passage or approval of them or as to their date can be made upon which the parties may offer evidence whenever such a question arises the court in deciding the issue should take judicial gotico of such facts as it may properly consider the evidence of public laws should be preserved in public and permanent records the facts upon which existence depends should be accessible ces sible to all because all are re quiren to know them in order to make their transactions and their coni duct conform to them and such records should be preserved until the time has passed during which reference to them may be necessary the authenticity of laws should not be entrusted to the memory of individuals therefore parol testimony cannot be received to prove their passage or their approval evidence from such transient uncertain and secret source cannot bo relied upon to authenticate legislative enactments the case of the state ex rel hor ron vs smith 44 ohio sustains this view irttie case of sherman vs story ife was said that an act of the legislature appearing to b e properly enrolled authenticated aria deposited with the secretary of states Sta teis a record which is conclusive evidence of the passage of the act and that the same passed as enrolled that neither journals of the legislature nor the bill as originally introduced nor the amendments attached to it nor parole evidence could bo received to show that it did not become a law in accordance cor dance with the prescribed forms or that did not become a law as enrolled tho court said the result of the authorities in england and the united states is that at common law whenever a general statute is cisro cited or its existence denied the question is to bo tried and determined by the court as a question of law that is to say the court is bound to take notice of and inform itself the best way it can that there is no plea by which it can bo put in issue and tried as a question of fact that if the enrollment of the statute is in existence the enrollment itself is the record which is conclusive as to wha the statute is and cannot be im beached pe ached destroyed or weakened by the journals of parliament or any other less authentic or less been no departure from the principles af pf common law in this respect in the united states except in instances where a departure has been grounded on or taken in pursuance of some express constitutional or statutory provision requiring some relaxation of the rule in order that full effect might be given to such provisions after the foregoing decision was rendered section 15 of altido 4 of the present constitution of california was adopted viz chaton Th aton the final passage of all bills they shall be by yeas and nays upon each bill separately antl shall be entered upon the journals and no bill shall become a law without the concurrence of a majority of the members elected to such house under this provision the same judge who delivered the opinion in the ase of vs story supra afterpe after he became judge of the ninth Circuit 1 bf the united states i said in a concurring opinion inthe railroad tax case 8 sawyer tinder the decisions of the courts upon constitutional provisions in all respects similar to that in the cresenc that the court to itself will awk to the journals of the legisla tore unless this mode is adopted of resorting to the journals to ascertain whether a statute has been legally parsed or noia experience and the number of cases that have already arisen under similar constitutional provisions demonstrate that the requirements of the constitution that tho vote shall be taken by yeas and nays and a majority of the members required to vote in the affirmative on the final passage of an act would be of little value several other cases re ere cited and the court said in the light of authority we tire of the opinion first that the court cannot receive verbal evidence to prove that a law was not passed and approved on the day it purports to have been passed and approved second that when the passage or the approval of a law is questioned the court may look beyond the printed statute to the engrossed bill as approved and filed with the secretary of the state or the territory as the case may be third that when the journals of the two houses showing their action are kept in pursuance of law the court may look to such journals to ascertain whether constitutional requirements have been complied with the law presumes that the acts of a public of aicer in pursuance of law and under the sanction of his official oath are correct because lie is presumed to keep his and do his duty A legislative enactment approved by the governor and filed and recorded in the office of the secretary of the territory constitutes a record of high order this law appears from that record to lavo been duly passed by the legislature and approved by the governor on the ath day of march 1887 before the expiration of the sixty days and it so appears in the printed volume we do not feel authorized to look beyond this record to the legislative journals or to receive verbal testimony to support or contradict the record in the office of the secretary territory numerous authorities were also cited here the plaintiff also contends that the naming of the court commissioners in tho act was an attempt to appolit territorial officers contrary to section 1857 of the revised statutes of the united states that section is as follows all township district and county officers except justices of the peace and general officers of the militia shall be appointed or elected in such manner as may be provided by the governor and legislative assembly of eacle territory and all other officers not herein otherwise provided for the governor shall nominate and by and with the advice and consent of tho legislative counsel oi each territory shall appoint if the j court commissioners are public officers and may not be regarded as district officers offic erb the appointment in the act contravenes the section of the revised statutes quoted these corn 1 como within the definition of their term of service is i fixed by law and their duties are not confined to a particular act or to any individual or their duj du j ties are not created or regulated by contract bub are to the public one commissioner L appointed for the northern und one tor the southern division of the birst judicial district a third for the second judicial district and a fourth for the third judicial district it ib made their duty to examine all court certificates given to durons and witnesses and to administer oaths to holders and to examine as to the service performed miles traveled etc and to allow the amoni t claimed if found correct to increase or decrease the sum to the correct amount they are authorized to draw upon the auditor of public accounts for a sufficient amount to pay jurors witnesses and phonographic reporters and to keep an accurate account of all moneys coming to their hands etc to these commissioners alie law in question entrusts the duty of ascertaining and paying the fees due the jurors witnesses and court reporters in their respective districts their duties are confined to the districts from which they arc appointed and we are disposed that they should be regarded as officers of tho district to which i their duties are confined plaintiff also urges that the act upon which defendant relies is retroactive tro active the letter of the first action considered by itself would ap pear to be subject to that objection it declares that from the first day of january 1888 until the first day of january 1890 witnesses for the territory in criminal cases and jurors in the district shall be paid the sum of two dollars per day for each days attendance at court and twelve cents per mile one way for the distance necessarily traveled from his place of residence to the place of holding court the other provisions of the act relate to the future the last section a amended declares that the act shall be in force from and after the date of its approval which was march ath 1888 the services for which the fees were claimed were rendered in the preceding month and tha certificate of attendance was made and delivered to plaintiff during the c month there was a nw law then in force fixing the fees of jurors and witnesses in all cases and the last clause of section 2 of an act of congress approved juno provided that the bosis and expenses of all prosecutors for offenses against any law of the territorial legislature shall be paid out of the treasury of the the plaintiffs right to the fees has accrued and vested life the law of march ath supra it remained for the legislature only to make the appropriation and then the auditor to audit the claim and for the treasurer to pay it inasmuch as this had not been done the legislature could provide that tho court commissioner might adjust and pay the claim but the amount but the amount should he determinedly determine dby the lawin force at the time the services were rendered ive are disposed to hold that the law begien a pros and not a retrospective effect when the services as witness wore rendered tho law then in force created an obligation upon the part territory to pay the plaintiff the amount of his fees according to the law then in force good faith on its part required this much the motion of tho defendant to quash the writ of mandamus was allowed mr men it gave notice of an appeal to the court of last resort bonds were fixed at |
