Town of South Ottawa v. Perkins Supervisors of Kendall County/Dissent Waite

MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE CLIFFORD, MR. JUSTICE SWAYNE, and MR. JUSTICE STRONG, dissenting.

I am unable to agree to the judgment which has been rendered in this case. There is no doubt but that the construction which the courts of Illinois have uniformly given the Constitution of the State is binding upon us as a rule of decision. The difference between me and the majority of my brethren is as to the construction that has been given, not as to its effect when ascertained. After a careful consideration of all the cases to which our attention has been directed, I am forced to the conclusion that the question has been made by the courts of Illinois one of fact and not of law. The majority of this court think it has been made one of law. Such a construction might and probably would be more logical; but our duty is to ascertain what has been decided, not what should have been.

The case of Spangler v. Jacoby, 14 Ill. 297, is the first of a long series of cases in which this question has been considered; and, so far as I have been able to discover, little has been done since, except to reaffirm and apply what was there decided.

Looking, then, to that case, we find that prima facie an act enrolled, signed by the speakers of the two houses, approved by the governor, deposited in the office of the Secretary of State, and published under his superintendence among the laws certified by him, is a valid law. The language of the court is: 'The act in question was signed by the speakers of the two houses, and it received the assent of the executive. Prima facie, therefore, it became a law.' Afterward, in Illinois Central Railroad Co. v. Wren, 43 id. 79, it is said, 'The laws certified by the Secretary of State, and published by the authority of the State, must be received as having passed the legislature in the manner required by the Constitution, unless the contrary clearly appears.' And, again, no longer ago than last year, in Larrison v. Peoria, Atlanta, & Decatur Railroad Co., 77 id. 18, 'If we find a law signed by the speakers of the two houses, and approved by the governor, we must presume that it has been passed in conformity to all the requirements of the Constitution, and is valid until the presumption is overcome by legitimate proof.'

This law was enrolled; signed by the speakers of the two houses; approved by the governor; deposited in the office of the Secretary of State; published by him with the requisite certificate among the laws passed at the session of the legislature in 1857; acquiesced in by the people of the State as a valid law for more than thirteen years after its publication; accepted and acted upon by the inhabitants of South Ottawa in October, 1866, when they voted under it for a subscription to the stock of the railroad company, and authorized the issue of the bonds of the township in payment; recognized as a valid and existing law by the legislature of the State, March 27, 1869, and April 20, 1869, when laws were passed referring to it as in force, and amending it; and finally acted upon by the officers of the township, when, in obedience to the vote of the inhabitants, they subscribed to the stock of the railroad company, and issued the bonds authorized by the act in payment.

In this condition of things the courts were bound to take judicial notice of it as a law in force. This was expressly decided in Illinois Central Railroad Co. v. Wren, supra, where it was said, 'Although we take judicial notice of all acts of the legislature signed by the governor and found in the office of the Secretary of State, and although for some purposes we may take judicial notice of the legislative journals, yet it is not our province, at the suggestion or request of counsel, to undertake to explore these journals for the purpose of ascertaining the manner in which a law duly certified went through the legislature and into the hands of the governor. If counsel say the journal shows a law to have been passed without calling the yeas and nays, let them make the requisite proof of that fact by means of the legislative journals, and introduce the proof into the record.' And again, during the same year, 1867, in Grob v. Cushman, 45 id. 124, where the question was as to the jurisdiction of the La Salle County Court, in a case which was brought before the Supreme Court for examination upon a writ of error, this language is used: -

'It is insisted that the La Salle County Court did not have jurisdiction of the subject-matter of this cause; that the act of the legislature under which the jurisdiction is claimed never became a law in the mode prescribed by the Constitution. And counsel, in their argument, refer to the journals of the house in support of this position. On the trial below, no evidence from the journals was introduced. But it is now urged, that, as they are public records, the court will take judicial notice of them, and not require them to be embodied in the evidence. It is true that they are public records, but it does not follow that they will be regarded as within the knowledge of the courts, like public laws. Like other records and public documents, they should be brought before the courts as evidence. But when offered, they prove their own authenticity. Until so produced, they cannot be regarded by the courts.'

Both these cases were decided two years before the bonds now in suit were issued.

Later, in 1871, in the case of The People v. De Wolfe, 62 id. 253, an application was made for a mandamus requiring a justice of the peace to issue an execution upon a judgment recovered before him. In his return, he stated that the act under which he assumed jurisdiction when he gave the judgment had never in fact been constitutionally passed, and gave the particulars of his claim in that behalf. In delivering the opinion, the court clearly considered the question presented as one of fact, for they say:--

'It appears by the return, which is not travered, and is to be taken as true, &c. . . . Our decision is predicated solely upon the state of facts as set forth in the return in this case, without an inspection of the journals of the Senate, and we pass upon the validity of the act in question no further than as affects the present application in view of the admitted facts in the case.'

It is difficult to see what could be done to manifest more clearly the determination of the court to make the question whether a prima facie statute had been constitutionally passed one of fact, to be established by 'legitimate proof' when a contest arises. This may operate to give an apparent statute effect under one state of circumstances, and not under another; but with that we have nothing to do. Our duty is ended when we have discovered and complied with the rule which the appropriate tribunal has established.

Under the operation of this rule the plaintiff below made out his case, when he proved the execution of his bonds and put them in evidence; and, in the absence of proof by the defendant, he was entitled to his judgment, even though the law might not have been constitutionally passed: because it was no part of the duty of the court 'to explore the journals for the purpose of ascertaining the manner in which a law duly certified went through the legislature.'

The question then is, whether, under the circumstances of this case, the defendant can be permitted to make the proof. This does not depend upon the construction of the Constitution, but upon the general principles of commercial law applicable to the Constitution as construed. The issue is made upon the fact of the passage of the law. Prima facie it was passed, and it was apparently in force. Both parties acting upon this prima facie case, and supposing it to be true in fact, have become bound: one has borrowed and the other lent. The lender has performed his part of the contract and delivered the money, and the simple question to be determined now is, whether, under such circumstances, the borrower can refuse to pay, because, upon further investigation, he has ascertained that the legislative journals do not contain the necessary evidence to establish the fact of the due enactment of the law. Reverse the case. Suppose the town had subscribed for the stock and paid the subscription, could the railroad company keep the money and refuse to issue the stock because, after the transaction, it had ascertained that a vote had not been taken by ayes and noes in one of the houses upon the final passage of the bill? Certainly not; and the reason is obvious. Under such circumstances, the law estops the party from asserting the falsehood of that which appears to be true. This rule has, from the beginning, been applied here to this class of cases. It was first stated in Commissioners of Knox County v. Aspinwall, 21 How. 545, where, using the language of Ch. B. Jervis in Royal British Bank v. Tarquand, 6 El. & Bl. 527, it was said:--

'We may now take it for granted that the dealings with these companies are not like dealings with other partnerships, and that the parties dealing with them are bound to read the statute and the deed of settlement. But they are not bound to do more. And the party here, on reading the deed of settlement, will find, not a prohibition from borrowing, but a permission to do so on certain conditions. Finding that the authority might be made complete by a resolution, he would have the right to infer the fact of a resolution authorizing that which, on the face of the document, appeared to be legitimately done.'

It is unnecessary to refer to the numerous cases which have come up since. While some of them have gone further than the English court did in that from which the quotation was made, none have fallen short of it. We need not go further in this. The purchasers of these bonds were bound to read the statute under which they were issued, but they were not bound to do more. Finding it upon the statute-book, apparently in force, they had the right to infer that it was actually in force, and govern themselves accordingly.

It must be remembered that this is not a case of construction. The question is not whether a law admitted to be in force confers the necessary power, but whether a law which does confer the power, and is apparently in force, can be shown not to have been in fact passed according to the requirements of the Constitution, after parties have acted upon the faith of it and changed their condition. When the question is one of construction alone, all parties stand upon an equal footing, and each can judge for himself. If a mistake occurs, it is one of law and not of fact. Here it is one of fact. The bonds on which this suit is brought are prima facie valid; and, as between these parties, I think the law will not admit the testimony offered to show that they are void. In the absence of proof they stand. The question is one of evidence. It is not whether the law was passed, but whether testimony can be introduced to show that it was not. I think it cannot. To admit it would ignore a principle of commercial honor upon which we have made a long line of decisions. I am not prepared to do so. If the courts of Illinois had been willing to take judicial notice of the legislative journals in determining what the law of the State is, there might be some propriety in requiring the people to do so. But when the courts make the question of overcoming a prima facie law one of fact, I think the people may do the same thing, and bring to their protection the same principles of estoppel which govern them in other cases. For these reasons I dissent from the opinion which has just been read.

NOTE.-At a subsequent day of the term, counsel for the plaintiffs in error moved the court for further instructions in these cases to the court below. MR. JUSTICE BRADLEY, on behalf of the court, said: 'We do not think any further directions necessary in these cases. We hold that the estoppel set up by the plaintiff below should not be allowed, but that the defendant should be permitted to show the invalidity of the act relied on by the plaintiff. We recognize the construction of the Constitution of Illinois adopted by the State court, to the effect that a law is void if not passed by the requisite majority, and so entered on the journal. We also hold the existence of a law to be a judicial question, to be decided by the court, though framed in form as an issue of fact. It follows that the court below, on retrying the case, must itself be satisfied whether the law in question was or was not constitutionally passed, and the vote entered on the journals, and instruct the jury accordingly. The evidence, or means of ascertaining this fact, must be such as is legally applicable to such a case according to the laws of Illinois. But, strictly speaking, the issue is more properly referable to the court than to a jury. That it may be so framed the judgment will be amended, directing the court below to award in each case a venire de novo, or to allow the parties to amend their pleadings, as they shall be advised, in order to refer the trial of the issue to the court instead of the jury.'