Citations
- 44 Ohio St. 348
Full opinion text
Minshall, J.
On May 17, 1886, the general assembly passed an act entitled an act to establish an efficient board of public affairs in cities of the first grade of the first class ” (83 Ohio L. 173). It abolished the board of public works created by an act passed March 3,1880, and, among other things, provided .that the members of the board of public affairs should be appointed by the governor, and should have all the powers, perform all the duties and be the successor of the board of public works. The members of the board of public-affairs for the city of Cincinnati, the respondents in this action, were appointed by the governor, qualified as required by law, entered upon the duties of their board and the performance of the same as far as they were permitted by the relators, and were continuing to do so, whereupon the relators, who constituted the board of public works of said city at the time of the passage of the act of May 17, commenced this proceeding, setting forth their title as members of the board of public works for the city of Cincinnati, and asking that the respondents should be required to show by what title they usurped the functions of the board of the relators, and that they might be ousted therefrom by the judgment of this court.
The respondents in their answer admit that they have assumed and claim the right to perform, the public duties that were heretofore incumbent on the relators as the board of public works of Cincinnati, but say that the act that created the board of the relators was repealed by the act of May 17,1886, creating the board of the respondents, and that thereby the board of public works was abolished, and that the board of public affairs was made and became its successor, and that the performance of all its powers and duties was conferred on the board of the respondents; and ask that the relators may be restrained from interfering with, them in the performance of their duties as such board of public affairs.
The relatoi’s reply, and in the first, second, third, and fourth paragraphs of the pleading, in substance deny (1) that the act creating the board of the respondents was, on the 17th of May, 1886, or at any other time, passed by the general assembly of the state, or that it ever became a law of the state; and (2) aver that, if it was passed, the legislature had no power to confer the appointment of the board on the govermor, and that it is unconstitutional and void.
In the fifth, and last, paragraph, it is, in substance, averred that the adoption of the act of May 17th was the result of a conspiracy between the president of the senate and seventeen members, entered into for the purpose, among other things, of abolishing the board of public works and establishing; in the language of the pleading, “ the so-called board of public affairs.” That in pursuance of this conspiracy, while Johu O’Neill and nineteen other members of the senate were absent from the senate chamber, and while only seventeen members, less than a quorum, were present, the president of the senate, with the advice and consent of the seventeen members then present, in violation of the constitution of the state and the rules of the senate, corruptly caused the clerk of the senate to enter upon its journal a resolution that John Brashears and three others, naming them, were not duly elected, and that George W. Hardacre and three others, naming them, were duly elected and entitled to seats therein; that the vote was not taken by yeas and nays, and that the majority of the members were at that time temporarily absent from the state. That afterward, without being sworn, the four, so admitted, claimed to be. members of the senate; and on the 17th of May, during the continued absence of the members before named, from the state of Ohio, the said pretended act of May 17, 1886, was declared passed and signed by the president of the senate ; and it is then averred “ that the president of the senate, the speaker of the house of representatives, and the secretary of state,'at the time of the signing and filing of said pretended act of the general assembly of the state of Ohio, well knew that the same had not been passed, but that the same was fraudulent and void;” and that there was at no time, from the 8th of May until the adjournment of the legislature, a quorum of duly elected members present in' the senate to do business.
A demurrer has been interposed to the first four paragraphs, and a motion made to strike out the averments contained in the fifth one. The demurrer raises the question of the constitutionality of the law, and the motion, the validity of its passage.
If the facts averred in the motion may be considered by a court, on the question whether a statute, that appears upon the journals of both houses of the legislature to have received the requisite concurrence of their members, as provided in section 9, article 2, of the constitution, that is duly attested as a law by the presiding officer of each house, as provided in section 17, article-2, of the same instrument, and has been enrolled and filed in the office of the secretary of state as a law, as provided by statute, section 128, Revised Statutes, is not what it is thus authenticated to be, then this motion should be sustained, otherwise it should be overruled.
It seems to be well settled that courts will take judicial notice of all that is necessai’y to the authentication of a statute. It is said by Wharton, in his work on Evidence (section 295): “ Courts will take judicial notice of the modes by which domestic laws are authenticated. Hence an English court is supposed to be judicially acquainted with the rules, practice, and prerogatives of parliament; an American court with the rules, practice, aud prerogatives of the federal and state legislatures to which" it is subject. So, as we have seen, a court will take judicial notice of the journals of a legislature to determine whether an act is constitutionally passed, or whether it has passed by reason of not having been returned in proper time by the governor.” There is then no need of stating what appears upon the journals of a legislature relative to the passage'of a law; such, matters are judicially noticed without averment, and the same effect given them as if averred. Bliss on Co. PI. 178. As no issue of fact can be taken upon what a court is required as a court to know, such averments in a pleading are redundant and irrelevant, and on motion should be stricken out. Pom. Rem., section 551.
Therefore, unless courts may hear parol testimony, offered to affect the passage of a duly authenticated statute, the matter contained in the fifth paragraph of the reply should be stricken out as redundant and irrelevant, as it appears from the journals of the two houses of the general assembly that this act received the requisite concurrence of the members, and was duly attested by the presiding officer of each house; audit has also been duly enrolled and filed in the office of the secretary of state, and published iii the laws of Ohio. The journals of the legislature, the office of the secretary of state, and the published laws, show this; of all which, we take judicial notice.
Counsel have exhibited unusual industry in looking up the various cases upon this question; and, out of a multitude of citations, not one is found in which any court has assumed to go beyond the proceedings of the legislature, as recorded in the journals required to be kept in each of its branches, on the question whether a law had been adopted. And if reasons for this limitation upon judicial inquiry in such matters have not generally been stated, it doubtless arises from the fact that they are apparent. Imperative reasons of public policy require that the authenticity of laws should rest upon public memorials of the most permanent character. They should be public, because all are required to conform to them; they should be permanent, that rights acquired to-day upon the faith of what has been declared to be law shall not be destroyed to-morrow, or at some remote period of time, by facts resting only in the memory of individuals.
One of the earliest cases on the subject was that of The King v. Arundel, Hobart, 109. It involved the question whether a private statute had been enacted. The court there hold that the act could only be tried by itself — its enrollment in the chancery, the chancery being then, as the office of the secretary of state is with us, the depository of the laws. The court said: “ When the act is passed the journal is expired.” Many cases follow this decision, adopting the attested enrollment of the law as conclusive on the question of its passage. Pangborn v. Young, 32 N. J. Law. 29, is an instructive ease on the reason and policy of the rule. See also: People v. Devlin, 33 N. Y. 269; People v. Commissioners, 54 N. Y. 276; Eld v. Gorham, 20 Conn. 8; Sherman v. Story, 30 Cal. 258; Louisiana State Lottery Co. v. Richoux, 23 La. Ann. 743; State v. Swift, 10 Nev. 176; Speer v. Plank Road Co., 22 Pa. St. 376.
But in many of the states, and without doubt in our own, the journals are to be regarded. They are required by the constitution to be kept. The language is: “ Each house shall keep a correct journal of its proceedings, which shall be published, . . . and on the passage of any bill the vote shall be taken by yeas and nays and entered upon the journal; and no law shall be passed in either'house without the concurrence of a majority of all the members elected thereto.” Sec. 9, art. 2. Now in the time of Iiobart the journals were not regarded as records; they were “ remembrances for forms of proceedings to the record,” that is to say, the enrolled bill.
In this state what appears on the;journals affecting the passage of a law has been noticed by this court, but in no instance has attention been given to any thing not appearing upon the journals, though it be the omission of a requirement of the constitution.
In Fordyce v. Godman, 20 Ohio St. 1, the question was whether a certain statute allowing what is known as the “Morgan-raid claims” had received the vote required by section 29, article 2, of the constitution, namely, two-thirds of the members elected to each branch of the general assembly. The law was held invalid, not by going outside of, but because it appeared from, the journal that the bill had not received the requisite vote. The attestation of the presiding officers is not, under our constitution, sufficient, in any ease, to convert into a law a bill that has not received the requisite vote; for by section 9, article .2, ou the passage of any bill the vote must be taken by yeas and nays, and entered on the journal; and if this be omitted the bill can not become a law, whether it receive the requisite vote or not. There is no such provision as to the seating or unseating of members.
In Miller v. State, 3 Ohio St. 475, one of the questions was whether the bill had been read on three different days in each house, as required by section 16, article 2. The court, Thurman, J., delivering the opinion, was inclined to treat the provision as directory, but said: “Whether the constitution, in the particular named, is merely directory or not, it can not be gainsaid, it seems to us, that where the journals show that a bill was passed, aud there is nothing in them to show that it was not read as the constitution requires, the presumption is that it was so read, and this presumption is not liable to be rebutted by proof.” And in State v. Moffitt, 5 Ohio, 363, it was determined by this court as. early as 1832 that the journal can not be 'contradicted by parol proof. And so in Koehler v. Hill, 60 Iowa, 545, the supreme court of Iowa held that parol evidence is not competent to supply a correction in the record of the journal; that is to say, that an amendment to the constitution of the state submitted by one general assembly was the same in form and words as that agreed to at the subsequent assembly.
There are numerous cases in the decisions of the different states to the effect that the journals of a legislature may be noticed by courts on the question whether a bill became a statute or not. Opinion of the Justices, 52 N. H. 622; Judicial Opinion, 35 N. H. 579; People v. Mahaney, 13 Mich. 481; Moody v. State, 48 Ala. 115; Grob v. Cushman, 45 Ill. 119; Board Supervisors v. Heenan, 2 Minn. 330; In re Roberts, 5 Col. 528. The latter presents an extensive collection of the cases. But, as before stated, none are to be found in which the courts have, for any purpose affecting the validity of a statute, gone beyond such permanent memorials of its enactment.
The case of The State v. Francis, 26 Kan. 724, is cited and relied on by counsel for relators. But it does not sustain them. There the house of representatives of Kansas had, by law, at that time, but 125 members; it had in fact 129. Eour of these had by law no seats in the house, and could in no event be entitled to participate in its proceedings; they were simply supernumeraries. The journal showed that the concurrence of three, at least, of these supernumary members was requisite to the passage of the law in question, and that all of them voted for it. The court took notice of these facts appearing upon the journal, and of the further fact that, as a matter of law, the house then consisted of 125 members only, and held that the bill did not become a statute. In no case, however, is the rule that limits judicial inquiry in questions of this kind to the journals of the legislature, and excludes all parol testimony, more strongly stated. The language used is as follows: “In our opinion, the enrolled statute is very strong presumptive evidence of the passage of the act and of its validity, and that it is conclusive evidence of such regularity and validity, unless the journals of the legislature show, clearly, conclusively, and beyond all doubt that the act was not passed regularly and legally. ... If there is any room to doubt as to what the journals of the legislature show, if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that.the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid; but in this state, where each house is required by the constitution to keep and publish a journal of its proceedings, we can not wholly ignore such journals as evidence.” That the invalidating facts must clearly and beyond reasonable doubt appear from the journal is sustained by Osburn v. Staley, 5 W. Va. 85.
In Evans v. Browne, 30 Ind. 514, the proof, as offered from the journal, in connection with parol testimony, was to the effect that the act in question had passed the house after it had been reduced to less than a constitutional quorum by the resignation of forty-two of its members. The court refused to take notice of the aver-, ments, following the rule in those cases that adopt the attested enrollment of the law as the indisputable evidence of its authenticity. The case is an instructive one on the policy of the rule that rejects an issue of fact on the question whether a statute was adopted and became a law or not.
In Wise v. Bigger, 79 Va. 279, it was claimed that an act apportioning the'congressional representation in that state, having been vetoed by the governor, had not repassed the senate by the requisite affirmative vote; that there were at least twenty-nine members present when the question was put, “ shall the bill pass notwithstanding the objections of thogovernor,” and that nineteen voted aye, and nine nay— the constitution requiring that it should be affirmed by two-thirds of the members present; but the court held that the journal did not show that there were more than twenty-eight present, and that it imported absolute verity. And to inquire into the veracity of the journal of the senate, in which it had recorded its proceedings, the court said “ would be to violate both the letter and spirit of the constitution; to invade a co-ordinate and independent department of the government, and to interfere with the separate and legitimate power and functions of the legislature.”
As to the averment that the passage of the act was part of a conspiracy, entered into between the president of the senate and seventeen of the members, carried into effect in the absence from the state of a majority of the members of the senate, it is sufficient to say that such suggestions have frequently been made for the purpose of inducing judicial inquiry into the conduct of legislative bodies, but the inquiry has as frequently been declined by the courts as not only indecorous, but as subversive of the independence of the legislature as a co-ordinate branch of the government. There is no authority for it in the constitution and laws of this state, and it is opposed to the practice and polity of our system of government. Slack v. Jacob, 8 W. Va. 613; McCulloch v. State, 11 Ind. 431; Wright v. Defrees, 8 Ind. 298; Evans v. Brown, 30 Ind. 514; Sunbury & E. R. Co. v. Cooper, 33 Pa. St. 278; Harpending v. Haight, 39 Cal. 202. In Miller v. The State, 3 Ohio St. 484, it is said by Thurman, J.: “A disposition to disregard it (the constitution) is no more to be imputed to the legislative than to the judicial department of the government, and ought not tobe imputed to either.” “And,” it is said by Cooley, “ although it has sometimes been urged at the bar that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegations were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon.” Const. Lim. *187.
■The possible consequences of limiting judicial inquiry to what is shown by the journal is much exaggerated. It is not perceived how any limited number of members, without the acquiescence, or such indifference as would amount to acquiescence, of the majority, could make up a journal that would revolutionize the legislature and deprive the people of their duly elected representatives. The supposed case of less than a majority of this court causing a judgment to be entered of record is not apropos. Eor if it were done the only remedy would be in this court, for the reason that there is no other tribunal or department of the government that could afford one. And by parity of reasoning the only correction that can be made in a legislative journal is by the body that caused it to be made. The sug-r gestión that fraud or bad motives in those who caused it to be made might defeat the remedy would apply to the one case as well as to the other. But confidence must be reposed somewhere, and why not in a legislative body, as to the keeping of its journals, as well as in this court, as to the keeping of its records? Besides, the people are the final tribunal before whom, as a rule, such delinquencies must be settled. Cooley’s Const. Lim. *168. And,in the case of legislators, the return to the people being at comparatively short intervals of time, it is difficult to see how such abuses, if they exist, can be of very long standing. And in such cases it is “ better to bear the ills we may have than fly to others we know not of.”
The claim is', that the act of May 17, 1886, creating the board of public affairs, did not pass the senate and become a law, because, at that time, there was not a constitutional quorum in it; and this is based on the claim that there was none px-esent on May 8, 1886, when the four members from Hamilton county were seated in the place of the four that were ousted. Now, if this were conceded, it does not follow that the act itself is invalid. No doctrine is better settled, in the jurisprudence of the English-speaking people, than that the validity of an act done by one in a public office or station is not, as a rule, to be tried by the title of the pei'son to that office.
One of the best considered cases on the subject is that of State v. Carroll, 38 Conn. 449. It contains an exhaustive examination of the numerous cases in which the doctrine has been discussed and applied, and points out an error in the report of the case of Rex v. Lisle, as made by Strange, 1090, that, as is showix, has been the soux’ce of erx’or in some of the subsequent cases. The result of the investigation made by the leaxmed judge is, that competent authority in the appointing or electing body is not requisite to make a de facto officer.
The doctrine has been applied in a number of cases by this court. Thus, in The State v. Alling, 12 Ohio, 16, the appointment of a clerk of the coux’t of common pleas, made by associate judges who were simply such de facto at the time of the appointment, having been previously legislated out of office by an act of the legislature, was held to be a valid one. This decision was made after the judges had been ousted from office on a proceeding in quo warranto. State v. Choate, 11 Ohio, 504.
In State v. Jacobs, 17 Ohio, 143, the appointment of a county treasurer by a board of county commissionei's, two of whom were de facto commissioners only, their legal titles having been destroyed by the division of Auglaize county, was held valid. The fact that they were recognized by the county auditor, who recorded their proceedings, and with the other commissioner, had the control of the books and papers, made, in the opinion of the court, a strong case of an officer de facto. In Ex parte Strang, 21 Ohio St. 610, the ground on which the seutence of an acting police judge was claimed to be invalid was, that the law under which he was appointed was unconstitutional. This question the court deemed it unnecessary to decide, for the reason, as stated, that if he was a judge de facto, his judgments would be as unquestionable by a proceeding in habeas corpus as if he were a judge de jure. It was then assumed that the legislature could not constitutionally authorize" the mayor to appoint a police judge; hut, as he was assuming to discharge the duties of the officer under the appointment, when he pronounced the sentence on Strang for a violation of an ordinance of the city, the court, after a full examination of the question in the light of the authorities, held that the acting police judge was a judge de facto, and sustained the sentence. White, J., delivering the opinion, said: “The true doctrine seems to be, that it is sufficient if the officer held the office under some power haying color of authority to appoint; and that a statute, though it should be found repugnant to the constitution, will give such color.”
It may then be asked, whether members of a legislature, seated by a vote of a number less than a constitutional quorum, have less color of title to their seats than a judge who holds his place by the appointment of one acting under an unconstitutional statute. In either ease it may be said, there was no constitutional warrant for the act on which the title rests ; and if the judgments of the one are valid, laws enacted by the body in which the others sit, and whose presence alone make a quorum therein, should also be held valid. Like reasons of public policy and convenience apply in either case.
In Scovill v. Cleveland, 1 Ohio St. 126, the validity of a certain assessment was questioned, inter alia, on the ground that the ordinance under which it had been made on the property of the plaintiff, was not passed by a number of legal eounoilmen equal to the majority of a legal council. To this Ranney, J., says: “We are still equally clear that, while they continued to act de facto in virtue of their election, their proceedings would be valid and binding.”
If the validity of every law passed by a legislature were made to depend upon the existence of a quorum at the time of its passage in each house, whether the fact appears from the journal of the proceedings therein or not, the inconvenience that would result would be intolerable. Evans v. Brown, 30 Ind. 520. To the private embarrassments that would ensué in the matter of contracts and dis|30sitions of property made upon the faith of what, by the public records, appeared to be a law, must be added the effect that would necessarily be produced upon the public credit. If such were the law, no loan could be obtained, short of the most ruinous rates of interest.
We observe that a number of public loans have been authorized by statutes passed since the 8th of May, 1886. Now if any of these loans have been made, can it be that the security of the public creditor must depend upon whether, as a fact, there was a quorum present in the senate on that day? It is difficult to perceive how it could be claimed that, if one statute is invalid because there was no quorum at that time, the same reason would not affect the validity of other statutes passed since the same time.
What appears of record is certain and accessible to all, and all may with reason be held to have notice of such matters ; that which rests in parol is perishable, uncertain, and, in the nature of things, limited to the actual knowledge of a limited number. The necessity for certainty and publicity in the laws needs no higher reason for the exclusion of pai'ol testimony, offered to affect their authentication, than the perishable and uncertain nature of such testimony.
The case of Braidy v. Theritt, 17 Kan. 468, has been cited and relied on by counsel for the relators. It is not in point. It was an action by Theritt to restrain Braidy, the alleged intruder, from interfering -with him while discharging his duties as a member of the city council. It does not present, nor decide, that an ordinance passed by the vote of Braidy would have been invalid; The court was careful to confine its decision to the question of title arising between the two parties.
Nor is it in point on the question, as to whether the four members of the senate, seated by less than a quorum, if such was the fact, are not de facto members. Braidy intruded into the council by his own act, Theritt having been returned elected. Here the contestants were seated by the members present, acting as a senate, and it is this act of those present, exercising the functions of a senate, that gives at least a color, if not a legal title, to those seated.
We are, then, of opinion that the motion to strike out the fifth paragraph of the reply should be sustained; and, as the act appears frorn the journals of the legislature to have been duly passed, has been duly attested and filed in the office of the secretary of state, and has been published as a law, the writ must be refused, unless it in some way clearly contravenes the provisions of the constitution.
3. This question is raised by the demurrer to the reply. It is claimed that the law is unconstitutional, because it authorizes the governor to appoint the members of the board created by the act. It has been argued with great zeal and ability by counsel for the relators; but with due deference we think it can hardly be regarded as an open question in this state, since the decision in The State v. Covington, 29 Ohio St. 102, sustaining the act under which the respondents in that case had been appointed by the governor. That case was followed in The State v. Baughman, 38 Ohio St. 455, sustaining the law authorizing the court of common pleas to appoint police commissioners for the city of Xenia. The question was fully examined by McIlvaine, J., in the Covington ease, and we are entirely satisfied with the reasoning upon which the judgment was placed. Ample power is conferred on the general assembly for the government and organization of cities by general laws; the legislative power of the state is vested in it by section 1, article 2, of the constitution ; it is required by section 6, article 13, to exercise this power by the enactment of general laws for the organization of cities and villages, and it is, in the exercise of this power by the general assembly, that theentire system of municipal government for cities and villages has been created in this state. The entire details of the system that may be devised, and the public agencies that may be employed for administering it, and whether they shall be elected or appointed, is left by the constitution to the wisdom of the legislature.
The constitution expressly provides that certain officers shall be elected, and among these includes “such county and township officers as may be necessary ” (section 1, article 10)', and then in section 27, article 2, it is provided that the election and appointment of all other officers not otherwise provided for in this constitution “shall be made in such manner as may be directed by law.” This is not only significant in itself, but seems to preclude the claim that there is any general spirit pervading the constitution, opposed to vesting the appoinment of municipal officers in the governor or elsewhere. Whatever effect may be claimed for section 20 of the bill of rights, it can in no way affect the election or appointment of officers whose election is not provided for in the constitution. The power conferred on the general assembly to provide for the election and appointment of officers is subject only to the limitations imposed by the instrument confering the power. “ The true rule for ascertaining the powers of the legislature is,” as stated by Mcllvaine, J., in the State v. Covington, supra, “ to assume its power under the general grant ample for any enactment within the scope of legislation, unless restrained by the terms or the reason of some express inhibition.”
To this may be added what is said in The State v. Constantine, 42 Ohio St. 442, that “ the manner of filling an office by appointment is unrestricted, save only that it can not be by ‘ an election,’ which is pointed out by the constitution as a different mode of filling an office.”
Much reliance is placed upon certain cases decided by the supreme court of Michigan. The case of Board of Park Commissioners v. Detroit, 28 Mich. 238, has little or no application to this case. It involved the question only whether the legislature could compel a city to incur an expenditure, as for a park, against the consent of its council. Nothing of the kind is contemplated by this act. The board of public affairs may supervise and control the making of public improvements by the city, but it can not initiate or compel expenditures for such purposes without the approval of the city council.
It may act, and was probably designed, as a salutary check upon public extravagance, and may afford a wholesome administration of the affairs of the city.
The case of The People v. Hurlbut, 24 Mich. 44, is in point. It involved the validity of an act establishing a board of public works for the city of Detroit. The appointment was made by the legislature in the act creating the board. It seems there is no express inhibition in the constitution of that state against the appointing power being exercised by its legislature, as in our own (section 27, article 2.) The law was held invalid, not because it violated any express provision of the constitution, for it was admitted that it did not, but because it was thought to contravene certain principles of local self government, that the court by way of inference regarded as part of their system of government. And still another distinction was taken, resting upon mere inference, and much relied on in the subsequent case, between the public and proprietary characters of a municipal corporation. Supreme control by the legislature over its public character is conceded, while it is thought that in its latter character it has, or should have, the same independence in the management of its proprietary interests that is conceded to a private corporation. These distinctions are found to be illusory and without any well founded distinction in principle. 1 Dill. Mun. Cor., section 67. They have not been adopted to any extent by other courts. People v. Draper, 15 N. Y. 533, per Denio, C. J.; Darlington v. Mayor, 31 N. Y. 193; State v. Seymour, 35 N. J. Law, 47; State v. Valle, 41 Mo. 29; Daley v. St. Paul, 7 Minn. 390.
"Well settled rules of construction forbid courts from assuming the liberty of declaring an act void because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in woi’ds. In the language of Judge Cooley, “the courts can enforce only those limitations which the constitution imposes; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism, and sense of justice of their representatives.” Const. Lim. *128, *171.
Over the wisdom or policy of this legislation this court has no control. In the language of Judge Black, in Sharpless v. Mayor, 21 Pa. St. 162: “ There is no shadow of reason for supposing that the mere abuse of power was meant to be corrected by the judiciary.” The remedy in such cases is with the people.
Being persuaded that this act in no way violates any provision of the constitution,
• Writ refused.
Owen, C. J.,
dissenting from the judgment, and especially from the action of the majority of the court in sustaining the motion to strike out the fifth paragraph of the reply, filed the following dissenting opinion :
The plaintiffs allege, in the fifth paragraph of their reply :
The act under which the members of the board of public affairs claim their offices is null and void; that the pretended passage, signing and filing the same with the secretary of state, is part of a conspiracy entered into between the president of the senate and seventeen members thereof; that such conspiracy was carried out by the parties to it in the following manner. (The names of the thirty-seven senators who were duly elected to the senate are here given.) It is alleged that on the 8th day of May, 1886, while nineteen members of the senate (naming them) were absent from the senate chamber, and while only seventeen senators, being less than a quorum of the duly elected senators, were present, the president of the senate, with the advice and consent of these seventeen senators, and in the absence of the majority of the senators, knowingly, unlawfully, fraudulently, and in violation of the constitution of the state and the rules of the senate, caused the clerk of the senate to enter upon what purported to be the journal of the senate, but which was not such in fact, the pretended adoption of a resolution, declaring that four of the senators — Brashears, .Hopple, Keuhnert, and Wilson — were not duly elected as members of the seuate, and not entitled to seats therein, and that Iiardacre, Richardson, Kirchner, and McGill had been duly elected members of such senate, and were entitled to seats therein. That only seventeen senators were present and voted for such resolution, and the vote was not taken by yeas and nays, as required by the rules of the senate, and a majority of the senators did not vote, who were temporarily absent from the state, with the intention of returning, and with no intention of vacating their seats or surrendering their rights as senators; that the president of the senate and said seventeen senators (naming them) fraudulently and corruptly conspired and caused what purported to be the journal of the senate to be so falsely and fraudulently made and kept as to show that such pretended resolution had been adopted; that after this said Hardacre, Kirchner, McGill, and Richardson, without being sworn, claimed to have been admitted toseats as members of the senate; that in furtherance of such conspiracy, and during the continued absence from the senate of the nineteen senators, before named, the pretended act, of May 17, 1886, under which the pretended board of public affairs claims to have been created, was declared passed and signed by the president of the senate, and only seventeen senators were present or voted at the time of the alleged passage of such act and the signing of the same by the president of the senate, yet said president of the senate and seventeen senators corruptly and fraudulently caused the pretended journal to be so falsely and fradulently made, kept, and signed as to show that the pretended act had been passed by the senate and signed by the president in its presence; that the president of the senate, speaker of the house of representatives, and secretary of. state, at the time of the signing and filing of such pretended act, well knew that the samehad not been passed, and was fraudulent and void ; that at no time from May 5, 1886, until the alleged adjournment of the senate, was there ever a quorum of members present for the transaction of business; and that neither a quorum nor a majority of the members elected to said body ever assented or agreed to such resolution, or concurred in the passage of the pretended act, above mentioned.
There can be no serious discussion of the legal effect of a motion to strike out.
It is an admission, for the purposes of considering the questions involved, of the truth of the facts alleged.
The averments of this paragraph are equivalent to an offer to prove the facts so alleged. The legal effect of a motion to strike out matter from a pleading for irrelevancy was considered in The State v. Harper, 6 Ohio St. 610. Bowen, J., speaking for the court, said: “The 118th section of the code authorizes irrelevant matter, inserted in any pleading, to be strikeu out on motion of the party prejudiced thereby. . . . The motion, in such case, took the place and served the office of a demurrer.”
What is the office of a demurrer? “A general demurrer admits the truth of facts as stated in the pleading.” McIlvaine, C. J., in Mitchell v. Treasurer of Franklin Co., 25 Ohio St. 153. While it is true that facts not well pleaded, and mere conclusions of law, are not admitted by a demurrer, there is no pretense that the averments in this paragraph of the reply are mere conclusions of law, or that the facts are not well stated. The claim is that the facts stated, if established, would be immaterial, irrelevant, and constitute no valid ground of objection to the act in question. To contend that these averments are not admitted by the motion because they are irrelevant and immaterial is to assume the very point in controversy. It follows that for the purposes of the questions raised by the motion it is admitted that the president of the senate and seventeen members entered into a conspiracy to subvert and evade a plain provision of the constitution of the state ordaining that: “A majority of all the members elected to each house shall be a quorum to do business; but a less number may adjourn from day to day, and compel the attendance of absent members,” etc. Art. 2, sec. 6; and that this conspiracy comprehended a scheme to cause what purported to be, but was not, the journal of the senate, falsely to show such business to have been done as could not constitutionally be transacted under that provision of the constitution, which was sought to be subverted. That is, by these avermeuts if is offered to prove, and by this motion it is admitted that a number of members less than a quorum, and who were wholly unauthorized to do more than adjourn from day to day and compel the attendance of absent members, fraudulently conspired to proceed with such unauthorized business, to vote out four members and vote in four other persons to take their places, and to cause a false and spurious journal to be so fabricated as to conceal the absence of a quorum, and thus to accomplish by a deliberate conspiracy against the constitution what its plain provisions expressly prohibited.
And this court is appealed to to ratify and sanctify this assault upon the constitution and upon representative government by declaring that the averments by which it is brought to our notice are irrelevant, immaterial, and scurrilous. How the' proof was to be made does not apppar. How far this pretended journal ■would establish it is not disclosed. It is idle to say that this court will take judicial notice of a senate journal; for no document purporting to be such journal has been before the court in any form, nor have we been made acquainted with its contents beyond what is disclosed in this reply; and intuitive knowledge of its contents will not be ascribed to the court or any member of it. It follows that the question of “going behind” the senate journal, which has so prominently engaged the discussion of this case, is not before us. By the averments of this reply there was no senate — simply a number of its members wholly without power to act. There was no senate journal, but a false nnd fraudulent pretense of one; and for aught that appears in this case, this pretended journal might, if offered in evidence or brought before us, be relied upon to establish, in part, the facts averred. It thus appears that the claim that these facts are immaterial because they would contradict a legislative journal is absurd; and the following language of Thurman, J., in Miller v. The State, 3 Ohio St. 484, which is cited by the defendants, has no application to the question before us. He said: “It seems to us, that where the journals show that a bill was passed, and there is nothing in them to show that it was not read as the constitution requires, the presumption is that it was so read, and this presumption is not liable to be rebutted by proof.” He was here discussing the mode of passing an act prescribed by the constitution, as distinguished from the authority to pass it.
But this eminent jurist used, in the same case,the following language, which, in the light of the present case, seems prophetic : “ By the term ‘ mode’ I do not mean to include the authority in which the law-making power resides, or the number of votes a bill must receive to become a law. That the power to make laws is vested in the assembly alone, and that no act has any force that was not passed by the number of votes required by the constitution, ajre nearly or quite self-evident propositions. These essentials relate to the .authority by which, rather than to the mode in which, laws are to be made.” See Fordyce v. Godman, 20 Ohio St. 17, where this view is approved by Scott, J.
In the case at bar it stands admitted that there was no authority to do any business as a senate. The averment is that but seventeen senators voted for'the act.
The attempt to sustain the act in question by the rule relating to officers defacto is a palpable misapplication of a familiar doctrine. Among other cases relied upon is that of Ex parte Strang, 21 Ohio St. 610. It was there held that where au act of the general assembly in form authorized the mayor of a city to appoint a police judge, such appointee was a judge de facto, and that his acts were binding when questioned collaterally, although the act authorizing such appointment was not warranted by the constitution. It is declared in that case that “it is sufficient if he derives his appointment from one having colorable authority to appoint; and an act of the general assembly, though not warranted by the constitution, will give such authority.” Here was the form of a law passed by the general assembly fully authorizad to act, and in strict pursuance of its terms the appointment was made and the appointee proceeded to act. Here was certainly color of authority to appoint. But in the case before us there was not the slightest color of authority to constitute the persons members of the senate who are relied upon to give vitality to the act. Their title to their seats has never risen higher than a deliberate plot to circumvent a plain command of the constitution. But it must be remembered that the averment of the reply is that less than a quorum (seventeen members) were present when this act was passed.
There is another principle which is fatal to the view here contended for and adopted by the majority. There is no form of direct attack upon the authority of these pretended senators to act, recognized by the law. The present is the only available form of attack upon their proceedings.
Quo warranto would not lie to call in question their authority to exercise the functions of senators. The present is to be treated as a direct attack, for the reason that no other form of attack can be made. The principle is well established that where a .direct attack upon a proceeding can not for any reason be made, it may be collaterally questioned. Vose v. Morton, 4 Cush. (Mass.) 31, and cases there cited.
In the case of the police judge there is no question but quo warranto proceedings would lie to oust him from his office, and for this reason, until this is done, his acts are binding as against collateral attack.
In Opinion of the Justices, 56 N. H. 570, the supreme court of New Hampshire was called upon for an opinion concerning the right of Priest and Proctor to retain seats in the senate. It was held that where the senate, in pursuance of its power to “judge of the elections, returns, and qualifications of its own members,” have adjudged that a person claiming a seat as senator was duly elected and possessed of the requisite qualifications, their judgment is final, and can not be questioned by the executive or judicial departments of the government. But the opinion concludes with this very significant statement: “ The foregoing opinion is based entirely upon the facts stated in the preamble to the resolution, and upon the assumption that when the senate undertook to act as final judges of the qualifications and elections of Messrs. Priest and Proctor there was a constitutional quorum present.”
It is noticeable that no case is cited by counsel, or by the majority, sustaining the view that acting members of a legislative body seated without authority are to be regarded as defacto members.
The authorities upon this question are well summqd up in McCrary on Elections (sec. 517), where the able author says : “ The cases in which the official acts or votes of members of a legislative body who are such defacto only, and not de jure, have been held valid, are all cases in which there was no question as to the legality of the body in which they sat. They are cases in which the body admitting such persons was, in doing so, acting within its admitted jurisdiction, and in such cases the courts will not inquire into the title of such members to their seats. The courts, in such cases, will go no further than to inquire as to the legal status and authority of the body as a whole,” etc. The italics are the author’s.
This effectually and conclusively disposes of all that has been said for the misconceived theory that an executed conspiracy between the presiding officer and a number of members less than a quorum of a legislative body to remove some of its members and induct other persons as members constitutes the latter de facto members of such body. It will be observed that the proceedings of the persons who assumed to be a senate are not attempted to be justified by the absence from the senate and state of a majority of the senators.
If seventeen members could transact such business so could seven, or any less number. Indeed, let it once be established that a plain provision of the constitution can be subverted or wholly disregarded by such means as it is here admitted were employed, and it is vain to speculate upon what may not be accomplished in an effort to contravene the oi’ganic law of our state.
In this case the court is-called upon to consider a radically new question. It is creditable to the legislative departments of the states that no court of last resort of any one of them has ever before been required to deal with such a question. The industrious research of counsel has failed to produce a ease, and it will be observed that not one is cited by the majority of the court, which tends in the slightest degree to support the extraordinary proposition which is here contended for. To apply the cases cited and relied upon it is necessary to assume an entirely different state of facts from those which appear in this case. Cases are found supporting the principle that courts will not inquire into the motives which prompted the enactment of a law. Their soundness will not be questioned. They all presuppose full anthority to act. Here there was entire absence of authority.
If the position reached by the-majority be tenable, these startling conclusions follow: When both.branches of the general assembly, possessing undoubted authority to act, and acting in good faith, overstep in the slightest degree the limitations of the constitution in the attempt to enact a law, this court is clothed with abundant authority to overturn it and declare it a nullity; but where less than a quorum of a single branch, utterly without authority to act, by a scheme of conspiracy and fraud, unparalled in the history of legislation, overthrow and disregard a plain command of the constitution, and cause a false, spurious, and pretended journal to make that appear which was not and could not be done, this court — the court of last resort in the state— which has ever been regarded as the last refuge of a broken constitution, is compelled to confess itself helpless and powerless to do more or less than ratify or sanctify the great public wrong by pronouncing upon it its solemn approval.
The fallacy of attempting to apply to this case the sentiment — sometimes mistaken for a principle — that the judicial department of the state owes entire immunity to its coordinate branches is obvious. There is no pretense that there was a senate authorized to act. One of the eminent judges constituting the majority, speaking for himself in a dissenting opinion in The State ex rel. Dalton v. Richardson, 43 Ohio St. 682, said: “It is a fundamental principle that every citizen and every public officer, however high his grade, is amenable to judicial control. It was but a few years since that the governor of this great state was arrested by the sheriff of an adjoining county and compelled to stand at the bar of the court, and plead as a common criminal. He did not claim nor could he claim exemption from obedience to the mandates of the court.”
This was a co-ordinate branch of the state government, not a mere usurper of its functions. No question of conspiracy to subvert the constitution was involved. So far as we are advised no question of irrelevancy, immateriality, or scurrility availed to prevent inquiry into the manner of exercising the executive functions of the state.
The eases which are relied upon to establish the sacredness of legislative journals from collateral inquiry or contradiction, all proceed upon the assumption that (1) there was authority to act and make a journal, and (2) there was a legal journal.
Here there was neither.
The contention that this conspiracy was so comprehensive in its workings — was carried to such extravagant limits and assumed such formidable proportions — that (though it be conceded that every step taken in its progress was over a broken constitution) it would create discord or disaster to call it in question now, is a novel argument.
"Without questioning in the slightest degree the sincerity of conviction which has prompted the conclusion reached by the majority, it would be vain for the writer of this dissenting opinion to attempt an expression of his measureless regret that the disposition of this case has been allowed to rest upon the admission which, in legal effect, is involved in this motion to strike out. Whether the plaintiffs would have been able to prove the facts alleged in this reply it is idle to speculate. For the purposes of this case they stand as proved and established facts. But it was due to the people of the state; it was due to the presiding officer and these seventeen members of the senate, who are strangers to this proceeding and who have had no opportunity to be heard in a matter which so gravely involves their official conduct; it was due to them as eminent citizens and officials of the state, that this motion to strike out be overruled, and that the plaintiffs be called upon to prove the truth of these startling charges. If upon a hearing they bad proved unfounded, all good citizens would rejoice. If they had proved true in fact, it is due the state and this court that the great crime against the constitution and against representative government be rebuked and redressed. But as it is, this unfortunate admission, and the announcement that there is no remedy in this court for the acts admitted, are left in this record — an abiding menace to our institutions — to breed popular distrust of the stability of our constitution, and of the power of this court to shield it from schemes and conspiracies to undermine and subvert it.
Spear, J.
Although entirely satisfied with the majority opinion, in so far as it discusses the questions therein presented, in view of the importance of the case, and especially of its treatment by the chief justice in the dissenting opinion, I have deemed it proper to present a statement of the ease as understood by me, with some views upon the questions involved, believing that such statement may contribute to a proper apprehension of the merits of the case itself, and of the action of the majority in the judgment rendered.
It is important, in preparing a statement of reasons for a particular view of a case tried and submitted to a court for decision, to keep in mind, with some care, the case actually submitted for the court’s action. To do this to any purpose the proceedings at the trial ar’e essential; and these will be particularly referred to further on.
The question which elicited the most controversy in the case at bar was as to the motion of the defendants to strike out the fifth paragraph of the reply of the relators. It has been assumed that by filing this motion the defendants have admitted the truth of all the allegations of the reply sought to be stricken out; this because a demurrer is said to admit the truth of the allegations of the pleading demurred to. I can not agree with this assumption. A motion is defined to be an application for an order. It performs an essentially different office from that of a demurrer. A demurrer raises an issue of law. The decision of a demurrer is a judgment. However the fact may be now, under the common-law practice, it contemplated a termination o.f the case. The demurrer was held to admit the matters of fact that were sufficiently pleaded because the party, having had his option whether to plead or demur, was taken, in adopting the latter alternative, to admit that he had no ground of denial or traverse. We need not stop to consider whether, under the present code practice, where the right to amend and to plead after decision of a demurrer is distinctly provided by statute and universally recognized, the iron rule of the common law ought to prevail or not, it is enough to say that such a result never was considered, under the common-law practice, as ensuing upon the determination of a motion. The decision of a motion is an order. It excludes the idea of a judgment. It is the written direction of a court, other than a judgment, and not included in it. See Darrow v. Miller, 3 Code Rep. 241. A motion is largely addressed to the discretion of the court, and refusal to strike out is rarely ground of error. Yery different as to a demurrer.
This motion is for an order to strike out the language of that paragraph as redundant, irrelevant, and scurrilous. The objection thus made is that a part is superfluous, and that the remainder is irrelevant because it can not be the subject of a material issue, has no bearing on the controversy, and can not affect the decision of the court. In other words, it is impertinent. In addition, it is scurrilous, in that it charges wrong doing upon the members of an independent branch' of the government concerning a matter about which they can not in this case in any manner be made amenable to the process, control, order, or judgment of this court, and is therefore a charge not fit to be here made.
But, even if the motion had been treated as a demurrer, still no admission would have followed. In legal contemplation the journal of the' senate (as to the contents of which and their legal effect we will see further on) would be before the court at every stage of the ease, as completely before the court and a factor in determining all questions which might arise, as it could be had its contents been copied in full in the answer of defendants.
Further considering differences between demurrer and motion, this distinction may be observed: If the testimony in support of the allegation would be admissible, but yet, though proven, the facts would be insufficient, and amendment might cure, then demurrer is proper to raise the question; but if no testimony at all can be received in support of the allegations, and amendment would not help the pleading, then motion is proper. Now, in this case, the journal being before the court, no proof at all could be received to contradict, or add to, or vary it, and, as motives of legislators can not, in a proceeding of this kind, be assailed, motion was the proper mode of disposing of the irrelevant matter. An inquiry as to the truth of the charges would be useless, for, where no proof can, in any event, be received, it can not become important to consider at all the truth or falsity of the allegations.
That the case of State v. Hooper, 6 Ohio St. 608, does not in any way aid the claim that the allegations of the fifth, paragraph are admitted by the filing of the motion, will, I think, be apparent upon a careful examination of it. In that case, suit had been brought upon the bond of a county treasurer to recover a balance due from him upon settlement, which he refused to pay over. To the petition he answered that his residence had been forcibly broken open and the money stolen. The plaintiff moved to strike the whole answer from the files. The entire opinion upon this subject, of Bowen, J., is as follows: “The 118th section of the code authorizes irrelevant matter inserted in any pleading, to be stricken out on motion of the party prejudiced thereby. This made it competent for the coux’t to strike out the defendant’s answer, if the matters which it contained were irrelevant, and fonmed no gx'ound of defense to the action. The motion, in such case, took the place and served the office of a demurrer. By the act of February 20, 1856, amendatory of the 101st section of the code, the plaintiff may demur to the answer for insufficiency, and this law necessarily supersedes the practice of moving to strike the answer from the files. The answer and motion in this case were filed befox’e the adoption of the last named act, and are, therefore, not affected by it.” By this language it appears that while prior to the amendment spoken of, motion was the px’oper paper fox' the plaintiff to interpose, after that amendment a demurrer only, in such case, would be warranted. It will be noticed, too, that this was a motion to an entire answer; not a motion to a reply, and to a pox’tion of that only. It took the place of a demurrer in every essential particular. Upon its determination there was nothing in the way of a judgment for the plaintiff'. Not so in this case. The motion went to a part only of the pleading, and upon its determination the demurrer to the other pox’tion of the reply remained to be disposed of. It is impossible to see in this case of State v. Hooper the slightest intimation, in language or by inference, that, under our present statute, a motion admits the truth of what the court is asked to order stricken out.
But “the averments of the paragraph are equivalent to an offer to prove the facts so alleged.” Ye