Harwood v. Wentworth

by John Marshall Harlan

United States Supreme Court

162 U.S. 547

Harwood  v.  Wentworth

This is a contest as to the right to exercise the functions of the office of county recorder of Cochise county, territory of Arizona.

The defendant in error filed in the district court of the First judicial district of that territory, holden in Cochise county, a petition alleging that at a general election held in Arizona on the 6th day of November, 1894, he was duly elected to the office of county recorder of Cochise county, and thereafter, having first duly qualified, entered upon the discharge of his duties as such officer; that that county, at the time of such election, was what is denominated as a 'first-class' county of the territory; that, at a regular meeting of the board of supervisors of the county, he was duly elected and appointed to the office of clerk of that board, and, having qualified, entered upon the duties of the office; that thereafter, on or about March 21, 1895, the legislative assembly of Arizona, for the purpose of classifying the counties of the territory, and fixing the compensation of county officers, passed an act entitled 'An act classifying the counties of the territory, and fixing the compensation of the officers therein,' which was approved March 21, 1895, by the governor of the territory, and went into effect 30 days after its passage, namely, on the 21st day of April, 1895; and that, according to the provisions of the act, Cochise county became and is a county of the third class, and its recorder clerk ex officio of the board of supervisors.

The plaintiff averred in his petition that as recorder he was, and had been since April 21, 1895, ex officio clerk of the board of supervisors, and as such entitled to the possession of the books, papers, records, seals, and documents pertaining to that office, but the same were in the hands of the defendant, Harwood, who, upon demand duly made, refused to deliver them to the plaintiff.

The prayer of the petition was that a writ of mandamus be issued, commanding the defendant to forthwith deliver all of said books, papers, records, seal, and other documents to the plaintiff, as recorder of Cochise county and ex officio clerk of said board of supervisors; that plaintiff be adjudged to be such recorder and clerk; and that the defendant be enjoined and restrained from exercising or performing any of the duties of that office.

The petition having been supported by the plaintiff's affidavit, an alternative mandamus was directed to be issued, commanding the defendant o deliver to the plaintiff all the books, papers, etc., pertaining to the office of clerk of the board of supervisors of Cochise county, or to show cause, by a day named, why the writ should not be made final and peremptory in the premises.

The defendant, Harwood, averred that the act referred to in the plaintiff's petition, referred to in the record as 'House Bill No. 9,' was not a law; that the same did not pass the legislative assembly as alleged; that that act, 'as the same passed both houses of said legislative assembly,' contained a clause that it should not take effect and be in force before January 1, 1897; that that clause or section was stricken out, omitted, and taken from the act after the same had passed both houses of the assembly, but is a part of the act; that there was also a clause that 'all acts or parts of acts in conflict with this act are hereby repealed,' and that that clause was also omitted and stricken out in the same way; and that 'the said alleged act was not duly passed by the legislative assembly, or by either house thereof, and that the same is not a law.'

By consent of the parties the case was tried by the court upon a stipulation as to the facts, and without a jury.

It was agreed by the parties that the act of March 21, 1895, as it appears in the printed laws of Arizona for 1895, is filed with, and is in the custody of, the secretary of the territory, and is signed as it appears in those laws to be signed, namely, by the governor, the speaker of the house, and the president of the council.

The affidavits of A. J. Doran and J. H. Carpenter, and also the affidavits of Charles D. Reppy and Charles F. Hoff, with the exhibits attached thereto, were read in evidence, and were treated as containing a true statement of the journals and proceedings of both houses, and of the facts stated in them, subject to the objection by the plaintiff that the enrolled bill, signed by the governor, and lodged with the secretary of the territory, could not be attacked by any evidence.

The witness Doran stated that he was president of the council of the legislative assembly of the territory; that the session terminated March 21st; that it was his custom, as president, to sign bills when presented to him by the chairman of the enrolling and engrossing committee of either house; that it had been the practice to so sign bills when presented, whether the council was in session or not, though ordinarily it would be done when the council was in session; that, if signed when the council was in session, there was no formality gone through with; that the attention of the council was not called to the fact that the president was about to sign the bill, nor was its business interrupted for the purpose of signing the bill, nor was a member who was speaking interrupted; and that it was simply handed up to the president, and he would sign his name and hand it back.

The witness Carpenter, who was speaker of the house of representatives of the legislative assembly of the territory, testified: 'That the session terminated on March 21st. It was the universal custom for him, as such speaker, to sign bills when presented to affiant by the chairman of the enrolling and engrossing committee of either house. That affiant so signed them without reading them, or without comparing them in any manner, and that, as a matter of fact, he did not compare any one bill signed by him, before he signed it. It was his custom, and it has been the practice, to sign bills when presented, whether the house was in session or not. If signed when the house was in session, there was no formality gone through with. The attention of the house was not called to the fact that the speaker was about to sign a bill, nor was the business of the house interrupted for the purpose of signing bills, nor was a member who was speaking interrupted. The facts are that a bill was simply handed up to the speaker, and he would simply sign his name and hand it back.' He also stated that 'he is certain that house bill No. 9, when it p ssed the house, contained a clause that it should go into effect January 1, 1897.'

Hoff and Reppy were chief clerks, respectively, of the council and house of representatives of the territorial legislative assembly, by which the said act of March 21, 1895, purported to have been passed. Referring to the original bill, and to the numerous indorsements or minutes thereon made by them respectively, each witness stated that the bill, as it passed the body of which he was an officer, and therefore as it passed both houses, contained the clause, 'This act shall take effect and be in force from and after January 1st, 1897.' Consequently, according to their evidence, the omission of that clause from the bill occurred after it passed both houses, and while it was in the hands of the committee on enrollment.

Upon these facts the court found the issues for the plaintiff, and its judgment was affirmed in the supreme court of the territory.

The statutes of the United States, as well as the statutes of the territory of Arizona, which bear more or less upon the present controversy, are, for convenience, given in the margin. ^[1]

Wm. H. Barnes, for appellant.

A. Wentworth,

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

Notes

1. Statutes of United States.

§ 1841. The executive power of each territory shall be vested in a governor, who shall hold his office for four years, and until his successor is appointed and qualified, unless sooner removed by the president. * * *

§ 1842. Every bill which has passed the legislative assembly of any territory shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it originated, and that house shall enter the objections at large on its journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that house agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall be likewise reconsidered; and, if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for or against the bill shall be entered on the journal of each house. If any bill is not returned by the governor within three days, Sundays excluded, except in Washington and Wyoming, where the term is five da s, Sundays excluded, after it has been presented to him, the same shall be a law, in like manner as if he had signed it, unless the legislative assembly, by adjournment sine die, prevents its return, in which case it shall not be a law: provided, that so much of this section as provides for making any bill passed by the legislative assembly of a territory a law, without the approval of the governor, shall not apply to the territories of Utah and Arizona.

§ 1843. There shall be appointed a secretary for each territory, who shall reside within the territory for which he is appointed, and shall hold his office for four years, and until his successor is appointed and qualified, unless sooner removed by the president. * * *

§ 1844. The secretary shall record and preserve all the laws and proceedings of the legislative assembly and all the acts and proceedings of the governor in the executive department; he shall transmit one copy of the laws and journals of the legislative assembly, within thirty days after the end of each session thereof, to the president, and two copies of the laws, within like time, to the president of the senate and to the speaker of the house of representatives, for the use of congress. He shall transmit one copy of the executive proceedings and official correspondence semi-annually, on the first day of January and July in each year, to the president. He shall prepare the acts passed by the legislative assembly for publication, and furnish a copy thereof to the public printer of the territory within ten days after the passage of each act.

§ 1846. The legislative power in each territory shall be vested in the

governor and a legislative assembly. The legislative assembly shall consist of a council and house of representatives. * * *

§ 1851. The legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States. * * *

§ 1861. The subordinate officers of each branch of every legislative assembly shall consist of one chief clerk, who shall receive a compensation of eight dollars per day, and of one assistant clerk, one enrolling clerk, one engrossing clerk, one sergeant at-arms, one doorkeeper, one messenger, and one watchman, who shall receive a compensation of five dollars per day during the sessions, and no charge for a greater number of officers and attendants, or any larger per diem, shall be allowed or paid by the United States to any territory.

By an act of congress, approved July 19th, 1876, entitled 'An act relating to the approval of bills in the territory of Arizona' (Supp. Rev. St. p. 112, c. 212), it was provided:

'Be it enacted,' etc., 'that every bill which shall have passed the legislative council and house of representatives of the territory of Arizona shall, before it becomes a law, be presented to the governor of the territory; if he approve it, he shall sign it, but if he do not approve it, he shall return it, with his objections, to the house in which it orignated, who shall enter the objections at large upon their journal, and proceed to reconsider it. If after such reconsideration, two-thirds of that house shall pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house it shall become a law, the governor's objection to the contrary notwithstanding; but in such case, the votes of both houses shall be determined by yeas and nays, and be entered upon the journal of each house respectively. And if the governor shall not return any bill presented to him for approval, after its passage by both houses of the legislative assembly within ten days (Sundays excepted) after such presentation, the same shall become a law, in like manner as if the governor had approved it: provided, however, that the assembly shall not have adjourned sine die during the ten days prescribed as above, in which case it shall not become a law: and provided further, that acts so becoming laws as af resaid shall have the same force and effect and no other, as other laws passed by the legislature of said territory.'

Statutes of Arizona.

§ 2940. All official acts of the governor, his approval of the laws excepted, shall be authenticated by the great seal of the territory, which shall

be kept by the secretary thereof. § 2878. The legislative assembly shall consist of: (1) Twenty-four members of the house of representatives; (2) twelve members of the council. § 2889. The chief clerks of each house must attend each day, call the roll, read the journals and bills and superintend any matters required of them. § 2890. The enrolling and engrossing clerk of each house must enroll and engross such bills or resolutions, as may be required of him by the house to which he is attached. § 2895. Each house shall keep a journal of its prodeedings and publish the same, except such parts as may require secrecy. The yeas and nays of the members of either house, on any question, shall be entered on the journal at the request of one-fifth of the members elected. Any member of either house may dissent from and protest against any act, proceeding or resolution which he may deem injurious to any person or the public, and have the reason of his dissent entered on the journal. § 2899. Every bill and joint resolution, excent of adjournment, passed by the legislature, shall be presented to the governor before it becomes a law. If he approve, he shall sign it; but if not, he shall return it with his objections, to the house in which it originated, which shall enter the objections at large upon their journal. § 2901. Every bill and joint resolution shall be read three times in each house before the final passage thereof. No bill or joint resolution shall become a law, without the concurrence of a majority of all the members present, and constituting a quorum of each house. On the final passage of all bills, and all joint resolutions having the effect of law, the vote shall be by yeas and nays, and entered on the journal. § 2921. Every bill must, as soon as delivered to the governor, be indorsed as follows: 'This bill was received by the governor this ___ day of _____, eighteen _____.' The indorsement must be signed by the private secretary of the governor. § 2928. The original acts of the legislature shall be deposited with and kept by the secretary of the territory. § 2929. All acts of the legislature and joint resolutions having the effect of law, shall take effect and be in force on the thirtieth day after being approved by the governor, and deposited in the office of the secretary of the territory, unless otherwise ordered by the legislature. § 2947. The secretary of the territory has such powers and shall perform such duties as are prescribed by the laws of the United States, and in addition thereto it is the duty of the secretary of the territory.-(1) To attend at every session of the legislature for the purpose of receiving bills and resolutions thereof, and to perform such other duties as may be devolved upon him by resolution of the two houses, or either of them. * * * (9) To deliver to the printer, at the earliest day practicable after the final adjournment of each session of the legislature, copies of all laws, resolutions, (with marginal notes,) and journals, kept, passed or adopted at such session; to superintend the printing thereof, and

have proof sheets of the same compared with the originals and corrected. (10) To cause to be published annually such laws, reports and documents, in addition to those required by the laws of the United States, as the legislature may direct. § 2948. He shall secure and safely keep in his office all original acts and joint resolutions of the legislature, and cause the same to be substantially bound in suitable and convenient volumes. § 2949. He is charged with the custody of:-(1) All acts and resolutions passed by the legislature. (2) The journals of the legislature. (3) All books, records, deeds, parchments, maps and papers kept or deposited in his office pursuant to aw. § 2950. He shall immediately after the publication of the statutes distribute volumes thereof as follows: (1) To the president of the United States one copy. (2) To the president of the United States senate one copy. (3) To the speaker of the house of representatives of the United States, one copy. (4) To each department of the government at Washington, D. C., and of the government of this territory, one copy. (5) To the library of congress, one copy. (6) One copy each to the governor, members of the legislature by which such laws were enacted, the delegate in congress, the secretary of the territory, each judge of a court of record in the territory, the attorney-general, territorial treasurer, territorial auditor, clerk of the supreme and district courts, county treasurers, sheriffs, district attorneys and boards of supervisors, court or public libraries, the attorney-general of the United States, and the governor of each of the states and territories of the United States for the use of such state or territory. § 2951. He shall distribute the journals of the legislature in the manner provided by the law of the United States, and also one copy each to the persons mentioned in subdivision six of the preceding section. § 2952. He shall deposit in the territorial library forty copies of the statutes and twenty copies of the journals.

[Argument of Counsel from pages 554-557 intentionally omitted]