Clough v. Curtis

BURKHART, Speaker of the House,

v. REED, Chief Clerk of the House, et al. No. 1, 134.

March 17, 1890.

These cases depend upon the same principles of law, and will be considered together.

It appears from the record of the first one (No. 1,133) that, upon the petition of the appellant to the supreme court of the territory of Idaho, an alternative writ of mandamus was issued, stating substantially the following facts: The appellantwas and is the president of the council of the fifteenth session of the legislature of Idaho, and the appellee is the secretary of that territory. On the sixtieth day of that session February 7, 1889, the council continued in session until midnight, and thereafter until 1 o'clock of the succeeding morning. About the latter hour in the morning of the 8th day of February, 1889, a communication was received from the chief clerk of the house of representatives, announcing that the body had elected one George P. Wheeler as speaker pro tem. The petitioner declined to receive that message as a message from the house, for that reason that the latter body had no authority to elect a speaker after the expiration of the 60 days prescribed for the session by the act of congress; and the petitioner, as a president of the council, announced to that body and declared "that, because the hour of 12 o'clock and after had arrived, and the time had elapsed in which the said legislature was permitted to transact business, therefore the said council was adjourned without day." He the inquired of the chief clerk if the adjournment was recorded in the minutes of the proceedings of the session, and received from him the reply that it was. The council then dispersed, and the petitioner and some of the members left the room, after which other members pretended to reorganize the council, and to elect one S.F. Taylor president pro tem thereof, and to elect other officers of the council, and also assume to transact legislative business, passing enactments which the persons, so pretending to be a legislature, claimed were acts of the legislature of the fifteenth session of the territory. Seventeen acts were so passed after the time had expired for holding the session of the legislature.

The writ also stated that in making up a record of the sixtieth day of the legislative session the clerk did not thereafter show him the same; and petitioner never saw, until after the clerk had filed with E. J. Curtis, the secretary of the territory, certain papers which he claimed were the proceedings of the sixtieth day of the session of the council, but which, in fact, were a false and fictitious account of those proceedings, signed by S. F. Taylor, and not signed by petitioner, president of the council, as required by its rules and practice. The petitioner found that a part of the minutes or records had been cut out, and that there were three stubs of leaves which had been a part of the former proceedings of the records or minutes of said session. The part of the minutes reciting that the president of the council declared the session adjourned, and his reasons therefor, had been cut out and were omitted from the minutes as filed with the secretary of the territory.

On the 14th of February, 1889, the petitioner, as the president of the council, called the attention of the secretary of the territory to said cut leaves, stating to him the proceedings that should have appeared therein, and handed to him a report thereof as they actually occurred, demanding that the same be incorporated with the proceedings of the legislature, and recorded as a part of the proceedn gs of the council. The defendant, Edward J. Curtis, declined to record the adjournment proceedings as a part of the proceedings of the legislature. The petitioner then and there demanded that the report as furnished by him be certified to congress as part of the proceedings of the legislature of Idaho for the fifteenth session. But defendant refused to report the said adjournment as a part of the proceedings. The petitioner, after having stated and certified to him, as secretary of the territory, that all of the alleged proceedings, wherein it was stated that S. F. Taylor was president pro tem., were had after the hour of 12 o'clock, and after the adjournment of the council by the president thereof, demanded that the subsequent proceedings and pretended legislation be not recorded as a part of the proceedings of the legislature, and, if already recorded, that the same be expunged from the record of the proceedings of the fifteenth session of the legislature,-all of which the secretary declined to do, and he still declines to treat the proceedings and acts signed by S. F. Taylor, president pro tem., as null and void, and threatens to certify them to congress as a part of the proceedings of the council.

The record in the second case (No. 1,134) shows that upon the petition of H. Z. Burkhart, speaker of the house of representatives of Idaho territory, fifteenth session, an alternative writ of mandamus was issued against Charles H. Reed, chief clerk of that body, and Edward J. Curtis, secretary of the territory, alleging the following facts:

The defendant Reed, as such chief clerk, has in his possession the minutes of the proceedings of the last day of the session of the house of representatives, which minutes have been read and approved by that body, and so declared to it then and there by the speaker on the last day of such session. Thereafter the speaker asked the clerk if there was any further business before the house, and the latter replied there was none. After the hour of 12 o'clock midnight of the 7th day of February, 1889, being the sixtieth and last day of the session the plaintiff, as speaker and acting as such, announced that the time had arrived when by the act of congress the session closed by limitation of time, and declared the house adjourned sine die. To that announcement there was no dissent by the house, or by any member thereof, but all acquiesced therein; and the speaker, acting as such, actually adjourned the house after the hour of 12 o'clock at night of the sixtieth day of the session. Upon such adjournment he and a portion of the representatives left the assembly room, and thereafter several members of the legislature elected a speaker, and assumed to pass acts and to perform the duties of the house.

The writ in this case also states that it was and is the duty of the defendant Reed, as chief clerk, to make and keep correct and true minutes of the doings and proceedings of the house, and upon their approval by the speaker it is his custom and duty to sign the same as speaker. But Reed wrongfully and fraudulently falsified said record of the minutes of the house on its last day's session, and took from and kept out of the minutes the fact that the speaker had them read and approved, and declared the same duly approved, and that the speaker asked the clerk if there was any further business, to which the latter replied that there was none, and that the speaker declared the house adjourned without day, according to the laws of the United States, the time for the limit of the session having expired. He wrongly and falsely put into the minutes of the last day's session the statement that, pending the reading of the journal, the speaker left the chair and went out of the house, when, in fact, he did not leave the house until after its final adjournment. The defendant Reed also neglected and refused to allow the speaker to inspect, revise, approve, or sign the minutes, and obtained the signature thereto of one George P. Wheeler, a member of the legislature who was neither the speaker nor the actual speaker pro tem of the house. He filed with the defendant Curtis, secretary of the territory, said falsified minutes as the true minutes of the last day's session, although the same, as the defendant Curtis knows, were not signed by the speaker, as the law and custom require. On the 7th day of February, 1889, demand was made by Lyttletion Price, in behalf of the speaker, the plaintiff herein, that Curtis do not record or treat the proceedings after said adjournment as the proceedings of the house. Yet Curtis, as secretary, is wrongfully claiming and pretending that said false and incorrect minutes are the real, true, and correct journals and minutes of the house, and is threatening to continue so to do, and to record and preserve those minutes as a record of the proceedings of the house on the last day of its fifteenth session.

These are the essential facts disclosed by the alternative writs of mandamus.

By the writ in the first case the defendant Curtis was commanded 'to record the said report of the said proceedings of the said council as a part of the proceedings of the fifteenth session of the legislature of Idaho territory,' and 'to expunge from the records of the said sixtieth day of the session all the proceedings assumed to have been done while S. F. Taylor is alleged to be president of the council, and to strike from the files and records of the laws of Idaho those pretended acts of legislation signed by S. F. Taylor as president of the council, or show cause,' etc.

The writ in the other case commanded the defendants 'to bring such minutes and pretended minutes and journal of said house of representatives into court, that the same may be corrected so as to state the facts, and that said Charles H. Reed correct the same in accordance with the facts, so that it may appear in the proper place in the minutes that said speaker asked the clerk if there was any further business before the house, and that the clerk said there was not, and that thereupon the minutes were read and approved, and that thereupon, it then being 12 o'clock midnight, the said speaker announced to the house that, the time having arrived when the session must close according to the law of congress, he therefore now declared the house adjourned sine die, and that to the said announcement of the expiration of the time of the session there was no dissent, and that to the said order of final adjournment there was no objection; and that in every way and manner and particular said Reed make said minutes correspond with the facts, and be a full, true, and complete record of said last day's session of said house of representatives, and be nothing otherwise; and that, after being so corrected, the said speaker, H. Z. Burkhart, may have an opportunity to sign said minutes as corrected; that the same be returned to the defendant Edward J. Curtis, as such secretary, or that, failing so to do,' cause be shown, etc.

In each case there was a demurrer upon these grounds: (1) The court has no jurisdiction of the person of the defendant, or of the subject of the proceeding; (2) the plaintiff has no legal capacity to sue; (3) the petition and writ do not state facts sufficient to constitute a cause of action or proceedings of this kind; (4) the writ is ambiguous and uncertain. In the second case an additional ground was assigned, to the effect that several causes of action were improperly united. The demurrers were all sustained, and the applications for writs of mandamus denied.

Arthur Brown and Lyttleton Price, for appellants.

''Geo. A. Jenks'', for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.