Harwood v. Wentworth/Opinion of the Court

by by John Marshall Harlan

United States Supreme Court

162 U.S. 547

Harwood  v.  Wentworth

That which purports to be an act of the legislature of the territory of Arizona, entitled 'An act classifying the counties of the territory and fixing the compensation of officers therein,' and to have been approved by the governor on the 21st day of May, 1895, not only appears in the published laws of the territory, but is filed with and in the custody of the secretary of the territory, and is signed, the parties agree, by the governor, the president of the territorial legislative council, and the speaker of the territorial house of representatives.

Is it competent to show, by evidence derived from the journals of the council and house of representatives, as kept by their respective chief clerks, from the indorsements or minutes made by those clerks on the original bill while it was in the possession of the two branches of the legislature, and from the recollection of the officers of each body, that this act, thus in the custody of the territorial secretary, and authenticated by the signatures of the governor, president of the council, and speaker of the house of representatives, contained, at the time of its final passage, provisions that were omitted from it without authority of the council or the house, before it was presented to the governor for his approval?

Upon the authority of Field v. Clark, 143 U.S. 649, 671, et seq., 12 Sup. Ct. 495, this question must be answered in the negative. That case, in its essential features, does not differ from the one now before the court. It was claimed in that case that a certain provision or section was in the act of congress of October 1, 1890, c. 1244 (26 Stat. 567), as it passed, but was omitted without authority from the bill or act authenticated by the signatures of the presiding officers of the two houses of congress and approved by the president. What was said in that case is directly applicable, in principle, to the present case. After observing that the constitution expressly required certain matters to be entered on the journal, and waiving any expression of opinion as to the validity of a legislative enactment passed in disregard of that requirement, the court said: 'But it is clear that in respect to the particular mode in which, or with what fullness, shall be kept the proceedings of either house relating to matters not expressly required to be entered upon the journals, whether bills, orders, resolutions, reports, and amendments shall be entered at large on the journal, or only referred to and designated by their titles or by numbers,-these and like matters were left to the discretion of the respective houses of congress. Nor does any clause of that instrument, ei her expressly or by necessary implication, prescribe the mode in which the fact of the original passage of a bill by the house of representatives and the senate shall be authenticated, or preclude congress from adopting any mode to that end which its wisdom suggests. Although the constitution does not expressly require bills that have passed congress to be attested by the signature of the presiding officers of the two houses, usage, the orderly conduct of legislative proceedings, and the rules under which the two bodies have acted since the organization of the government, require that mode of authentication.' Again: 'The signing by the speaker of the house of representatives and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill thus attested has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill thus attested receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable. As the president has no authority to approve a bill not passed by congress, an enrolled act in the custody of the secretary of state, and having the official attestations of the speaker of the house of representatives, of the president of the senate, and of the president of the United States, carries on its face a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated is in conformity with the constitution.'

It is said that, although an enrolled act, properly authenticated, is sufficient, nothing to the contrary appearing on its face, to show that it was passed by the territorial legislature, it cannot possibly be-that public policy forbids-that the judiciary should be required to accept as a statute of the territory that which may be shown not to have been passed in the form in which it was when authenticated by the signatures of the presiding officers of the territorial legislature and of the governor. This, it is contended, makes it possible for these officers to impose upon the people, as a law, something that never in fact received legislative sanction. Considering a similar contention in Field v. Clark, the court said: 'But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy, to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a co-ordinate branch of the government. The evils that may result from the recognition of the principle that an enrolled act, in the custody of the secretary of the state, attested by the signatures of the presiding officers of the two houses of congress, and the approval of the president, is conclusive evidence that it was passed by congress according to the forms of the constitution, would be far less than those that would certainly result from a rule making the validity of congressional enactments depend upon the manner in which the journals of the respective houses are kept by the subordinate fficers charged with the duty of keeping them.' These observations are entirely applicable to the present case.

But it may be added that, if the principle announced in Field v. Clark involves any element of danger to the public, it is competent for congress to meet that danger by declaring under what circumstances, or by what kind of evidence, an enrolled act of congress or of a territorial legislature, authenticated as required by law, and in the hands of the officer or department to whose custody it is committed by statute, may be shown not to be in the form in which it was when passed by congress or by the territorial legislature.

It is difficult to imagine a case that would more clearly demonstrate the soundness of the rule recognized in Field v. Clark than the case now under examination. The president of the council and the speaker of the house of representatives state that it was not 'the custom,' when an enrolled bill was presented for signature, to call the attention of their respective bodies to the fact that such bill was about to be signed; that the bill was simply handed up, when it would be signed and handed back, without formality, and without interrupting legislative proceedings. The speaker of the house of representatives, in addition, stated that he was certain that the original bill, when it passed that body, contained a clause that it should go into effect on the 1st day of January, 1897. But what made him so certain of, or how he was able to recall, that fact, is not stated.

Equally unsatisfactory, as proof of what occurred in the territorial legislature, are the indorsements made by the chief clerks of the council and the house upon the original bill. The indorsements made by the chief clerk of the house are as follows: 'Introduced by Mr. Fish January 28th 1895; read 1st time; rules suspended; read 2d time by title; 100 copies ordered printed and referred to committee on judiciary. Reported printed, 2, 5, '95. Reported by committee amended and recommended that it do pass as amended. Referred to committee of whole with report of committee and its amendments. 2, 7, '95.-Considered in committee of whole, amended, and reported back with recommendation that it do pass as amended. 2, 15, '95.-Amendments adopted and 100 copies ordered printed. 2, 21, '95.-Reported printed and ordered engrossed and to have third reading. 2, 28, '95.-Rep'd engrossed, read 3rd time, placed on final passage, and passed-ayes, 17; noes, 6; absent, Brown, sick.' The indorsements made by the chief clerk of the council were these: 'Rec'd from house; read first time; rule suspended; read 2d time by title; referred to com. on ways and means, 2, 28, '95.-Rep't back that it be referred to a com. of the whole; rep'd adopted and made sp'c'l order for Tuesday, March the 12th, at 2 p. m., 3, 7, '95. Made sp'c'l order for 4 p. m. this day, 3, 16, '95. Considered in com. of whole; rep't back; progress, 3, 18, '95. Considered in committee of the whole; amendment, no. 1 and no. 2 offered and adopted. Ordered to have third reading, 3, 19, '95. Read third time; placed upon its final passage and passed council. Taken to house, 3, 20, '95.' Again: '3, 20, '95, house. Rec'd by message; amended in council; amendments concurred by house; ordered enrolled. 3, 21, '95.-Rep't enr'd and in hands of governor.' These indorsements, in themselves, throw no light upon the inquiry as to whether the particular clause, alleged to have beer omitted was in fact stricken out by the direction of the council and house. They show, it is true, that amendments of the original bill were made, but not what was the nature of those amendments. If it be said that certain amendments are attached to the original bill, and are attested by one of the clerks, the answer is that other amendments may have been made that were not thus preserved. It was not required that each amendment should be entered at large on the journal.

If there be danger, under the principles announced in Field v. Clark, that the governor and the pre iding officers of the two houses of a territorial legislature may impose upon the people an act that was never passed in the form in which it is preserved by the secretary of the territory, and as it appears in the published statutes, how much greater is the danger of permitting the validity of a legislative enactment to be questioned by evidence furnished by the general indorsements made by clerks upon bills previous to their final passage and enrollment,-indorsements usually so expressed as not to be intelligible to any one except those who made them, and the scope and effect of which cannot, in many cases, be understood, unless supplemented by the recollection of clerks as to what occurred in the hurry and confusion often attendant upon legislative proceedings.

We see no reason to modify the principles announced in Field v. Clark, and therefore hold that, having been officially attested by the presiding officers of the territorial council and house of representatives, having been approved by the governor, and having been committed to the custody of the secretary of the territory as an act passed by the territorial legislature, the act of March 21, 1895, is to be taken to have been enacted in the mode required by law, and to be unimpeachable by the recitals, or omission of recitals, in the journals of legislative proceedings, which are not required by the fundamental law of the territory to be so kept as to show everything done in both branches of the legislature while engaged in a consideration of bills presented for their action.

It remains to consider whether that act is repugnant to the act of congress of July 30, 1886, c. 818, entitled 'An act to prohibit the passage of local or special laws in the territories of the United States to limit territorial indebtedness, and for other purposes.' 24 Stat. 170.

That act declares that the legislatures of the territories of the United States shall not pass local or special laws in any of the following, among other, enumerated cases: 'Regulating county and township affairs;' 'for the assessment and collection of taxes for territorial, county, township or road purposes;' 'creating, increasing or decreasing fees, percentage or allowances of public officers during the term for which said officers are elected.'

The territorial act alleged to be repugnant to the act of congress is declared to be 'for the purpose of fixing the compensation of county officers' of the territory, and, to that end, all the counties of the territory are classified according to the equalized assessed valuation of property in each county. County treasurers, district attorneys, county recorders, assessors, and probate judges are to receive salaries of specified amounts, as the counties of which they are officers are in one or the other of the six classes established. In other words, the salaries of officers in each class are specified; the largest salary that each can receive being that named for a county of the first class having an equalized assessed valuation of property of $3,000,000 or more, and the smallest that each can receive being that named for counties of the sixth class, having an equalized assessed valuation of property of less than $1,000,000. Laws Ariz. 1895, p. 68.

We are of the opinion that the territorial act is not a local or special law, within the meaning of the act of congress. It is true that the practical effect of the former is to establish higher salaries for the particular officers named, in some counties, than for the same class of officers in other counties. But that does not make it a local or special law. The act is general in its operation; it applies to all counties in the territory; it prescribes a rule for the stated compensation of certain public officers; no officer of the classes named is exempted from its operation; and there is such a relation between the salaries fixed for each class of counties, and the equalized assessed valuation of property in them, respectively, as to show t at the act is not local and special, in any just sense, but is general in its application to the whole territory, and designed to establish a system for compensating county officers that is not intrinsically unjust, nor capable of being applied for purposes merely local or special. It is not always easy to fix a basis for the salaries of county officers, so as to compensate them fairly for their services, and yet be just to taxpayers. Certainly those named in the territorial act of 1895 ought not to receive as much compensation for services in a county having a few people, and in which a small amount of taxes is collectible, as in a populous county, in which a large amount of taxes is colletible. The services performed by such officers in the latter class of counties would necessarily be greater than those required in the former. The assessed valuation of property in a county furnishes a reasonable test of the character of the services required at the hands of county officers. At any rate, the adoption of such a test does not show that the act was designed to defeat the objects of congress, nor that it is local or special legislation. If the territorial act is embraced by the act of congress, and if the territory, by legislation of that kind, cannot fix the salaries of county officers, and thereby displace the system of fees, percentages, and allowances, it would follow that many county officers would receive compensation out of all proportion to the labor performed and the responsibility incurred by them. It seems to us that the act in question cannot be characterized as local or special, any more than an act which did not create, increase, or diminish fees, percentages, or allowances of public officers during the term for which they were elected or appointed, but which, prospectively, fixed their compensation upon the basis of a named per cent. of all the public moneys that passed through their hands. Could an act of the latter kind be regarded as local or special because, under its operation, officers in some counties would receive less than like officers would receive in other counties whose population was larger, and where business was heavier and property of larger value? We think not. And yet we should be obliged to hold otherwise if we approved the suggestion that the territorial act of March 21, 1895, was local or special simply because, under its operation, county treasurers, district attorneys, county recorders, assessors, and probate judges will receive larger salaries in some counties than like officers will receive in other counties.

In support of the appellant's contention, numerous adjudged cases have been cited. We have examined them, but do not find that they are in conflict with the conclusions reached by us in this case.

The judgment of the supreme court of the territory is affirmed.

Notes