Ex parte Tipton , 28 Tex. Ct. App. 438 ( 1890 )

Willson, Judge.

Applicant T. W. Tipton being in custody of the-sheriff of Smith County by virtue of a capias issued from the County Court of said county, upon an information based upon a complaint charging said applicant with unlawfully selling refined kerosene illuminating fluid without first having the same inspected and branded according to law, applied to the county judge of said Smith County for the writ of habeas corpus, and said judge declined to grant said writ; but as the question involved in the case was the validity of a statute, referred the application to this court, requesting action thereon. At Tyler this court granted the writ, and upon a hearing thereof took the cause under advisement and transferred the same to this branch, and after a thorough investigation of the question presented we now declare our conclusions..

It is claimed by applicant that the statute for a violation of which he-is being prosecuted and is in custody as aforesaid, to-wit, the act approved April 5, 1889, entitled “An Act to provide for the inspection of refined oils which are the product of petroleum, and which may be used for illuminating purposes within this State, and to regulate the sale and. use thereof, and to provide penalties for violation of the same,” is not a. valid law because it is not the statute which was in fact enacted by the Legislature.

It is claimed by applicant, and is conceded by the Assistant Attorney-General, and is shown by the journals of the Senate and House of Representatives, that said act originated in the House of Representatives, and was designated and known as House Bill No. 167. It passed the House and was sent to the Senate. In the Senate, section 3 of the bill was amended, and the bill was returned to the House with the Senate amendment thereto. The House concurred in the Senate amendment;, the bill as amended was enrolled; the Committee on Enrolled Bills reported to the House that the bill had been correctly enrolled, and the bill was then signed and presented to the Governor, who approved it, and it was deposited in the Secretary of State’s office.

As appears from, the Senate journals the amendment to section 3 of said bill which was adopted by the Senate was as follows: “Provided, it shall not be necessary to inspect oil which has been inspected under a law of another State, and its quality determined and evidenced by the authentic stamp or mark of the inspector of such State.” In the enrolled bill, which is now the statute we are considering, the proviso in section 3. corresponding to the amendment above quoted reads: “ Provided, it shall not be necessary to inspect one which has been inspected under a law of another State.” It is manifest that the proviso in the statute and the proviso which is recited in the Senate journals are not the same, but are essentially different.

But how far will the courts of this State go in inquiring into the acts of the legislative department of the government? When a bill has been authenticated by the signatures of the President of the Senate, and the Speaker of the House of Representatives, and the Governor of the State, and has been deposited in the office of the Secretary of State, and published as a law of the State, will the courts of this State, from the journals of the Legislature or other evidence, determine that the statute is. not a valid law because not enacted in accordance with the formalities required by the Constitution, or because the statute so authenticated is, not the one enacted by the Legislature?

In several of the American States it is the established doctrine that the courts will inquire behind the authenticated statute into the manner of its enactment, and will from the journals determine whether or not it is a valid law. Counsel for applicant have referred us to numerous decisions which so hold, and which unquestionably support the propositions contended for in behalf of applicant. But there is much conflict of authority upon the questions above propounded. We shall not take the time to cite and review the vast number of decisions bearing upon the subject, believing, as we do, that the courts of this State have announced the rules by which we should be governed.

In Blessing v. The City of Galveston, 42 Texas, 641, it is held that the judicial department, on the bare fact that the journals of one or both houses of the Legislature fail to show the passage of the bill in full and strict conformity to all the directions contained in the Constitution, should not disregard and treat as naught an act in all other respects unobjectionable. It is further clearly intimated, we think, in that decision that the authenticated statute should be regarded as the best, if not conclusive, evidence that the required formalities were observed in its passage, and that for the courts to exercise the power of going behind such statute and inquiring into the manner of its enactment would lead to most disastrous consequences.

In Railway Company v. Hearne, 32 Texas, 547, it is held that the best evidence of the terms of an act of the Legislature is a duly certified copy of the enrolled hill.

In The Day Company v. The State, 68 Texas, 526, it is held that it will he conclusively presumed that a hill had been referred to a committee and reported on before its passage as required by the Constitution.

In Usener v. The State, 8 Texas Court of Appeals, 177, this court quotes .approvingly from The State v. Swift, 10 Nevada, 176, as follows: “Where an act has been passed by the Legislature, signed by the proper officers of each house, approved by the Governor, and filed in the office of the Secretary of State, it constitutes a record which is conclusive evidence of the passage of the act as enrolled. Neither the journals kept by the Legislature, nor the bill as originally introduced, nor the amendments attached to it, nor parol evidence, can be received in order to show that an act of the Legislature, properly enrolled, authenticated, and deposited with the Secretary of State, did not become a law. This court, for the purpose of informing itself of the existence or terms of a law, can not look beyond the enrolled act, certified to by those officers who are charged by the Constitution with the duty of certifying and with the duty of deciding what laws have been enacted.”

In Hunt v. The State, 22 Texas Court of Appeals, 396, this court held that where the Constitution expressly requires that the journals shall show a particular fact or action of the Legislature in the enactment of a statute, as that the bill was signed by the presiding officer of each house, such fact or action must affirmatively appear in the journals or the statute will be invalid. But where there is no express constitutional requirement that the journals shall show affirmatively that a constitutional requirement has been observed, it will be conclusively presumed that such requirement was observed, and the journals nor any other evidence will in such case be allowed to impeach the validity of the statute.

We conclude, therefore, that we are not at liberty to go behind, the authenticated statute in this instance. Upon its face it is a valid law, and it is not claimed that the journals fail to show any fact expressly required to be shown in order to make it valid. It must be conclusively presumed that the statute as authenticated and deposited in the Secretary of State’s office is precisely the same as was enacted by the Legislature.

But were we at liberty to go behind the statute and consult the journals we would be confronted with conflicting evidence as to the amendment. The Senate journals show that an amendment to section 3 was adopted in that house, and shows what that amendment was, and that the bill and amendment were returned to the House of Representatives. The journals of the House of Representatives show that the amendment adopted by the .Senate was concurred in, but does not set forth the amendment. The journals of the House further show that the bill as amended by the Senate was correctly enrolled, and this enrolled bill is the statute authenticated and published as a law, but it does not contain the amendment as set forth in the Senate journals. Which of the journals, those of the Senate or of the House, are correct? They are of equal credit. It may be that the amendment was incorrectly copied into the Senate journals, and that the amendment in fact adopted by the Senate and concurred in by the House is that which appears in the enrolled bill. If, then, we were to look to the journals to determine the question we should hold that the weight of evidence supports the validity of the statute, because the journals of the two houses being of equal credit and weight the authentication of the bill as enrolled by the presiding officers of the two houses and by the executive corroborates and confirms the correctness of the House journals as to the amendment in fact adopted.

It is ordered that the applicant be remanded to the custody of the sheriff of Smith County, and that he pay the costs of this proceeding.

Ordered accordingly.

Hurt, J., absent.