County Commissioners v. Baker

⁶²⁴ Thomas, J., delivered the opinion of the Court. In pursuance of the provisions of chapter 383 o-f the published Acts of the General Assembly of Maryland of 1922, authorizing and directing the County Commissioners of Washington County to issue bonds to the extent of $300,000 for the purpose of purchasing a site or sites, and the erection, improvement and equipment of such school building or buildings as the Board of Education of Washington County might deem necessary, the County Commissioners advertised for bids for the bonds, and received and accepted the bid of Baker, Watts & Company, Townsend Scott & Son, and Nelson, Cook & Company, subject-to “the understanding” that the bonds were “legally and validly issued and sold.” Thereafter' the purchasers refused to accept and pay for the bonds, and the County Commissioners of. Washington County filed a bill of complaint in the Circuit Court of Baltimore City for specific performance of the contract. The bill was resisted on the ground that the act referred to “was not passed by the General Assembly of Maryland as provided by the Maryland Constitution,” and was “never adopted by the Senate of Maryland,” and the present appeal is from the decree of the court below sustaining the contention of the defendants and dismissing the bill.

At- the trial of the case in the court below, the plaintiff offered in evidence a certified copy of “House Bill No. 88” (being chapter 383 of the published Acts of 1922), sealed with the great seal, signed by the Governor and the presiding officers of the Senate and House of Delegates, and recorded in the office of this Court. The defendants then produced the Journals of the Senate and House of Delegates. It appears from the entries in the House Journal that the bill in question, which was known and referred to in the Journals as “House Bill No. 88,” was introduced in the House by Mr. Funk on the 24th of January, 1922, and was read the first time and referred to the Washington County delegates; that on the 17th of Feb ⁶²⁵ ruary it was reported favorably, witli amendments, which were adopted, and the bill was read the second time and "ordered printed for a third reading,” and that on the 22nd of February it was read the third time and passed, the yeas and nays being recorded in the Journal, and was then sent to the Senate. The Senate Journal shows that House Bill No. 88 was read in the Senate the first time on February 22nd, and was referred to Senators Mish, McCullough and Iiobb; that on March 2nd it was reported favorably with certain important amendments; that on March 3rd the amendments were adopted by the Senate, and the bill was read the second time and ordered printed for a third reading; that on March 7th it w:as read the third time and passed, the yeas and nays being recorded in the Journal, and was then sent to the House of Delegates.

The House Journal further shows that on March 8th the House refused to concur in the amendments adopted by the Senate, and proposed a conference. The Journals of the House and Senate show that a Conference Committee was appointed on March 8th, and it appears from the House Journal that on March 22nd the Conference Committee reported the bill favorably with a number of amendments, that the amendments were adopted, and that the bill was then passed by the House, and the yeas and nays duly recorded on the Journal. But in the Senate Journal the last reference to the bill is the request of the House for a conference, and the appointment by the Senate on March 8th of three members of the Conference Committee. The Senate Journal does not show the adoption by the Senate of the amendments by the Conference Committee, and contains no record of the passage of the bill, as amended by the Conference Committee and passed by the House, or of the yeas and nays on its final passage in the Senate.

The defendants also offered in evidence the original House Bill No. 88, as printed for a third reading in the House of Delegates, which has indorsements on it indicating the action thereon referred to above. There was attached to the ⁶²⁶ printed bill the report of the Conference Committee, and there were indorsements on the bill showing that the Conference Committee’s report was adopted and that the bill, as amended, was passed by the House of Delegates “hy yeas and nays.” But there are no indorsements on the printed bill indicating any action by the Senate after the appointment of the Conference Committee on March 8th. The defendants also- produced what is spoken of as the docket, titled “Senate Book for House Bills,” the entries in which indicated that the last action by the Senate in reference to House Bill No-. 88 was on March 7th, when the bill, as amended in the Senate, was passed by the Senate and returned to the House of Delegates. A. Leonard Goodman, who stated that he was employed by the Department of Legislative Reference and that his duties were to make a record and report of all bills in the Senate, testified that his records did not show any action by the Senate in reference to House Bill No. 88 after the House of Delegates refused to concur in the Senate-amendments, and a Conference Committee was appointed.

In rebuttal the plaintiff produced Senator Mish, who testified that after House Bill No-. 88, as amended hy the Conference Committee, of which he was a member, was passed by the House of Delegates, “it came over to the- Senate,” and that “he moved the adoption of the Conference Committee report,” and that he believed “that it was passed”; that he kept a list of all bills that he was interested in and wanted passed, and that the bill in question was “stricken off” his list “as passed,” and that the “main” reason he thought the bill was passed by the Senate was because it was “struck off” his list. It was agreed by counsel that if Senator William I. Norris were present at the trial “he would testify that he remembers that House Bill No. 88, with the report of the Conference-Committee attached to- it, was offered in the Senate by Senator Mish and was adopted, but that he cannot recall the time or date when this action was taken by the- Senate.” Section 22 of article 3'of the Constitution provides: “Each House shall keep a Journal of itsi proceedings, and cause- ⁶²⁷ the same to be published. The yeas and nays of members on any question shall, at the call of any five of them in the House of Delegates, or one in the Senate, be entered on the Journal.” Section 27 of the same article contains the provision that “no bill shall be read the third time until it has been actually engrossed or printed for a third reading,” and section 28 declares that “no bill shall become a law unless it be passed in each House by a majority of the whole number of members elected, and on its final passage the yeas and nays be recorded; nor shall any resolution requiring the action of both Houses be passed except in the same manner.” Section 30 provides: “Every bill, when passed by the General Assembly, and sealed with the great seal, shall be presented to the Governor, who, if he approves it, shall sign the same in the presence of the presiding officers and chief clerks of the Senate and House of Delegates. Every law shall be recorded in the office of the Court of Appeals, and in due time be printed, published and certified under the great seal, to the several courts, in the same manner as has been heretofore usual in this State.” There have been a number of cases in this State in which the validity of an act has been questioned on the ground that it was not passed in accordance with the provisions of the Constitution, but in all of them, except the cases of Balto.

Fidelity Warehouse Co. v. Lumber Co., 118 Md. 135 , and Thrift v. Towers, 127 Md. 54 , the contention was that the bill passed by the General Assembly was different from the duly authenticated and published act. Fouke v. Fleming, 13 Md. 392 ; Annapolis v. Harwood, 32 Md. 471; Berry v. Balt. & Drum Pt. R. R. Co., 41 Md. 446 ; Legg v. Annapolis, 42 Md. 203 ; Ridgely v. Baltimore City, 119 Md. 567 ; Jessup v. Baltimore, 121 Md. 562 . In Balto.

Fidelity Warehouse Co. v. Lumber Co., supra, the validity of the act turned upon the question of the authority of the Governor to return the bill to the House of Delegates at the request of the House and Senate, in order that it might be amended in respect to ⁶²⁸ certain objectionable features, and of the regularity of the procedure adopted by the Senate and House in reference .to' the bill after it was returned, and in Thrift v. Towers, supra,, the bill, which had been introduced in the Senate, was subsequently amended “by striking out all after the word hi. bill,’ ” and inserting in lieu thereof an entirety new bill, with a different title. The original title and number of the bill were carried through the Journals, and were printed “on the outside of one of the pages or wrappers” of the bill. The ground of attack was that the bill had been “read and passed” in each branch of the General Assembly “by its original title,” but the Court said that in order to establish his position the appellant “was bound to' show by competent and clear evidence that the original title alone was read,” and that there was “no'evidence to show that the original title was read after the amendment was adopted. The Journals do not so show.

It was merely referred to by the original title.” In the case of Berry v. Balt. & Drum Pt. R. R. Co., supra, which was decided after the adoption of the present Constitution, and where “the engrossed bill, as it was finally acted on by the two Houses of the Legislature, with indorsements thereon by the proper officers, as to the action of the respec-. tive Houses, together with the Journals of both Houses,” had been produced, Judge Alvet said: “From the evidence thus furnished, it is made clear beyond all question or dispute, that the particular section of the act involved, as it passed the two House of the Legislature, is essentially different from the corresponding section in the Act that received the imprint of the great seal, the signature of the Governor, and was lodged in the office of this court for record, and after-wards published. * * * It is contended by the appellant that the law must be taken to be as we find it evidenced bv the bill filed in the office of this court,- under the- great seal, and the signature of the Governor; while, on the other hand, it is insisted by the appellee that it is competent for this court to examine the Journals of the two Houses of the General As ⁶²⁹ sembly, and the original engrossed bill, with the indorsements thereon, in order to ascertain and determine what were the provisions of the act that really passed the two Houses, of the General Assembly.” After referring to the cases of Fouke v. Fleming, supra, and Annapolis v. Harwood, supra, he said further: “But in the case now before us, it is plainly shown by the most unquestionable evidence, that the third section of the bill as engrossed, before the third reading' and the passage thereof, pursuant to the requirements of the Constitution, art. 3, sec. 27, and as it actually passed, is essentially different from the corresponding section in the bill that ■was attested, sealed, signed by the Governor, and filed for record. There is therefore no ground for presumption in favor of the identity of the bill as recorded in the office of this court, with that which passed the Legislature, unless we make the facts of the attestation, the imprint of the great' seal, the signature of the Governor, and the filing for record, conclusive upon the question as to what is law, and exclude all other evidence upon the subject, no matter how plain and direct it may be. But to do this would be virtually denying to the people of the State the benefit of the safeguards provided by the Constitution, and to allow and enforce that as law which has not been assented to by their representatives.

The Constitution has prescribed certain modes and prerequisites for the enactment of laws., and as those, by the terms of the Constitution, are imperative conditions, no bill, not so enacted into law, should be.allowed to affect the rights of the citizens. * * Unquestionably, where an act has been duly authenticated and published as law by authority, the presumption is, that all the constitutional solemnities and prerequisites necessary to its valid enactment have been complied with; and this presumption exists until the contrary is clearly made to appear. But when it can be made clearly to appear, as in this case it has been, that the particular bill or section of a bill, though it may have all the forms of authentication, has never in fact received the legislative, as ⁶³⁰ sent, we think the court is bound to- look not only behind the printed statute book, but beyond the forms of authentication of the bill as recorded in the office of this court, and if the evidence be clear and entirely satisfactory to the mind of the court, to decide- accordingly.” The principles announced in Berry’s case have been adhered to in all the decisions in this State, and in Jessup v. Baltimore, supra, Judge Urner, speaking for the Court, said: “While the decisions of this Court recognize- its right and duty, in passing upon a question like the present, ‘to receive evidence such as that furnished by the engrossed bills, with the indorsements thereon, and the Journal of proceedings of the two Houses of the Legislature’ (Berry and Ridgely cases, supra), the inadmissibility of parol testimony to impeach a duly authenticated statute has been clearly determined. Even the legislative Journals do not of themselves have such a probative quality and are entitled to be considered only in connection with other competent proof.”