all of the departments, and must stand as against the action of any one or all of them. Upon principle, then, in view of the division into departments under our form of government, each of equal authority, one department cannot rightfully go behind the final record certified to it or to the public from either of the other departments; and the judicial department is no more justified in going behind the final act of the legislature to see if it has obeyed every mandatory provision of the constitution than has the legislature to go back of the final record made by the courts to see whether or not they have complied with all constitutional requirements. If we investigate the question in the light of authority, and analyze the cases upon the subject in the light of the principle at the bottom thereof; it will be found that the overwhelming weight of authority is in favor of the proposition that courts will not go back of the enrolled bills on file in the secretary of state's office. It is true that a large number of courts have held that they would investigate the proceedings of the legislature to see if constitutional requirements had been complied with, but even these courts have nearly all of them conceded that the older decisions clearly establish the doctrine that such enrolled acts are conclusive, and have yielded their assent to such doctrine under the constitutions existing at the time the older cases were decided. They have argued, however, that, for the reason that the newer constitutions contain many provisions mandatory upon the legislature as to its practice in enacting laws, the courts must see to it that such mandatory provisions are enforced, and, as they cannot do this if they hold to said doctrine, they must refuse so to do, and look to the proceedings of the legislature which culminated in the enrolled act. If the courts are justified in the position above suggested, that the judicial department is superior to the others, this reasoning will have force; otherwise, it cannot.

It is further argued that, from the fact that most constitutions recently adopted contain an increased number of mandatory directions to the legislature, the courts are justified in changing the old rule, and in going behind the enrolled act to see that the legislature obeys such directions. We are unable to see any force in such an argument. Under every government which has as a part thereof a legislature, certain formalities on the part of such legislature are necessary before any subject-matter can be given the force of law; and, if the courts could not properly inquire into the fact as to whether or not such formalities had been complied with when but a single one was enjoined upon the legislature, there can be no good reason why it could do so when several are thus enjoined. The theory upon which the courts refused to go behind thé enrolled bill when only such single formality

Un

was required was that the enrolled bill was a final record, and imported verity; and, if it imported verity when the one formality was required, why should it not import like verity when more than one is required? der no government of this form could a bill become a law without the vote of a majority of a quorum in its favor, as such must be taken to be a part of the constitution, either written or unwritten, of every government proceeding according to any constitutional form whatever. If the alleged want of any requirement would justify going behind the enrolled bill, it would seem that it would be the one that a quorum was not present when the bill purported to have been passed, for the reason that such an allegation would not only show that a formality required by every constitution before a bill should become a law had been omitted, but would also show that a legal legislature had not been present at that time; yet, when such requirement was the principal one, substantially all of the courts held that the enrolled bill imported verity, and could not be attacked by showing that a quorum was not present when it was passed. The cases were not only practically uniform when such single formality was required, but they so continued even after they were called upon to adjudicate as to the effect of such enrolled acts, where some provisions of the constitution as mandatory as any of ours were in full force; and, in many of the states where such formalities were required by the constitution, there was fully as mandatory a provision as to the keeping of a journal, and requiring these formaltities to be made of record therein, as is that in our constitution. This course of decisions continued for a long time, until at last some of the appellate courts seemed to assume that it was their duty, not only to supervise inferior courts, but also the other departments of the government.

We shall hereafter review a few of the many cases upon this subject, but at this point a word as to the opportunities for fraud growing out of the holding of such enrolled bills to be conclusive as compared with the contrary holding. We have already seen the disastrous results of the contrary holding in its general effect upon the community, and even a superficial examination of the question will show that the opportunities for committing a fraud upon the members of the legislature themselves will be much greater if the journals are allowed to control than they would be if the enrolled act is held conclusive. The enrolled acts are prepared with some care, and, under the rules of our legislature and of every legislative body of which we have any knowl edge, some committee is charged with the responsibility of seeing that such enrolled bills are compared with the one which actually passed the legislature before they are presented to the presiding officer for signa

ture. There is therefore some protection thrown around these enrolled acts, and it would be a difficult matter for any one through carelessness or fraud to prevent the will of the legislature, as expressed in the bill actually passed, being embodied in the enrollment thereof. But, if the doctrine be once established that the fact that such bill had passed can be negatived by the journal, there would be very little to prevent a bill which had been properly passed being defeated by the carelessness or fraud of the journal clerk or some employe under him. Under the practice prevailing in the legislature of this state, and in most of the other states, there is very little assurance that the journal will fully and accurately show the proceedings of the body for which it is kept.

The practice in nearly all such bodies

is to have the journal read, if read at all, from loose slips of paper, made up partly in writing and partly by pasted slips, and, after being thus read, ordered approved. It is also a fact of which every one has knowledge that often upon such reading there is such inattention on the part of the members of the legislature that gross errors might pass unnoticed. The journal, as thus read and approved from loose slips of paper, is then passed to the journal clerk, and by him, or under his direction, transcribed into a book, and the slips then carelessly preserved or entirely destroyed. The transcrip

tion of these minutes, without any further action on the part of the legislature, or of any person but the one who makes it, except superficial examination by the journal clerk, and possibly by the presiding officer, becomes the formal journal. It follows that the chances of mistake are very great, and for fraud upon the part of the copyist even greater. The constitution requires that there should be a majority of the body recorded as voting in favor of a bill upon its final passage. Upon such passage the bill in fact receives one or two more than such constitutional majority, and is duly passed; but if, by carelessness or fraud, the copyist should change one or two of the names of those voting, from the affirmative to the negative, the will of the legislature, regularly expressed, would be defeated; and the same result might follow if in copying he should omit a name. Not only would such results follow in the cases specified, but in many other ways the least error in making up or transcribing the journal might result in the de feat of the will of the legislature. Unless the method of keeping journals should at once be revolutionized, and so much attention be paid to them that they will be made to absolutely represent all the doings of the body to such an extent as to very much prolong the sessions of the legislature, the sanetity of legislative enactments will be entirely dependent upon the carefulness and good faith of some copyist employed by the legislature at a few dollars a day. Much less

evil will grow out of a course of decision which will give the people to understand that the legislative is a department of the government, of as high authority as the judicial, and that with the mandatory provi sions directed to it the other departments of the government have no concern. When this is once well understood, the people will see to it that such mandatory provisions are complied with by the legislature, or, if they do not, the blame must rest upon themselves or the system of government which has as its basis the equal authority of the three departments into which it is divided.

We shall not attempt to review to any great extent the cases' upon this subject. They are very numerous, and the older ones almost universally recognize the conclusiveness of the enrolled acts, and, even under mandatory constitutional provisions of substantially the same effect as our own, there are enough of the states which have adhered to the old doctrine to furnish us abundant authority for so doing, especially as such a course will, in our opinion, best subserve the public interest. The reasoning of the cases which uphold such doctrine is much more satisfactory than that of those upon the other side, for, as we have seen, the reasoning of the latter class of cases is founded upon the assumption that the courts are the guardians of all the mandatory provisions of the constitution, whether addressed to the judiciary, legislative, or executive department. This seems to us to be an untenable position, and, if it is, the reasoning of this class of cases is worthy of very little consideration. While, upon the other side, the cases have for their sanction not only a course of decisions running back hundreds of years, but are also abundantly supported by the reasoning therein contained, founded upon the nature and form of our government, and upon grounds of public policy. In our review of the cases upon the subject we shall omit entirely all reference to the older ones, as it is conceded that they are substantially all in favor of the proposition that the enrolled acts are conclusive. We shall confine ourselves to the cases which may be called modern, and substantially to those in states which have one or more provisions in their constitution directed to the legislature as mandatory as any in our own, and where, by the provisions of the constitution, the legislature is required to keep and publish a journal of its proceedings.

The constitution of the United States expressly requires a quorum of congress to be present for the transaction of business. It further requires that congress should keep a journal of its proceedings, and publish the same from time to time. In Field v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495, the effect which the court would give to an enrolled act was directly passed upon, and, after an elaborate consideration, it was held that the court must accept it as conclusive proof that

It had been regularly passed by congress. This case is entitled to more than ordinary consideration, for the reason that it was briefed by counsel of national reputation, and involved questions of the greatest magnitude. It is contended by respondent that much of the force of this case is lost by reason of the fact that the number of mandatory provisions in the constitution of the United States is small compared with that in our own, but since, as we have attempted to show, the single requirement was of the most radical character, and went to the foundation of our form of government, such fact can in no manner detract from the force of the decision. And we cannot agree with the further contention of the respondent that the judge who wrote the opinion intended to give any force to this line of argument in the reference therein made to the course of decisions in the states which had, as a part of their constitution, numerous mandatory provisions of this nature. We look upon the use of such language as having been simply by way of argument, and as tending to show that, even although the decisions in such states might be warranted under their constitutional provisions, yet such fact did not necessarily militate against the position taken by him.

In the state of Louisiana, when the constitution of that state contained, among other mandatory provisions, one requiring it to keep a journal, and the express provision that "no bill shall have the force of a law until on three several days it be read in each house of the general assembly, and free discussion allowed thereon, unless four-fifths of the house where the bill is pending may deem it expedient to dispense with that rule," the supreme court of that state, in the case of Lottery Co. v. Ricoux, 23 La. Ann. 743, directly held that the enrolled bill was conclusive upon the courts of the fact that all constitutional requirements had been complied with in its passage. In White v. Lewis, 25 La. Ann. 568, the question was again before the court, and the same doctrine was unhesitatingly announced.

The constitution of the state of Mississippi contained many provisions as mandatory as any in our constitution, and in Green v. Weller, 32 Miss. 650, after a most elaborate consideration, it was adjudged by the supreme court of that state that the enrolled act was conclusive. Under the particular facts of that case, there was some division of opinion among the members of the court, for the reason that the bill the effect of which they were passing upon was one providing for a constitutional amendment, and some of them thought that proposals for amendments to the constitution should stand upon a different basis than other acts of the legislature; but they all agreed that the rule would obtain in full force when applied to an ordinary act of the legislature. In Swann v. Buck, 40 Miss. 268, the same court had be

fore it the question of the effect to be given to an enrolled act on file in the proper office, and held directly that such acts, when enrolled, signed by the presiding officers of the two houses, approved by the governor, and deposited in the office of the secretary of state, had all the legal incidents of a record. imported absolute verity, and could not be impeached. In Brady v. West, 50 Miss. 68. this court seems to have inclined to the contrary doctrine; but in Ex parte Wren, 63 Miss. 512, after a very full consideration of all the cases, the court returned to the doctrine originally announced, and showed by the most cogent reasoning that such enrolled acts were and must necessarily be con clusive upon the courts.

In the constitution of the state of New Jersey there were many mandatory provisions directed to the legislature, among which was one requiring a majority of all the members to vote in favor of the final passage of a bill before it became a law by ayes and nays to be entered upon the journal. In Pang born v. Young, 32 N. J. Law, 29, the ques tion under discussion was passed upon by the court of errors and appeals of that state, and, after most elaborate consideration, it was held that the courts could not go behind the enrolled act.

The state of Indiana has several provisions in its constitution of the mandatory nature of which we have been speaking; yet its supreme court has in a number of cases decided that the prior proceedings of the legislature could not be gone into for the purpose of affecting the validity of the enrolled act on file in the office of the secretary of state One of such cases was that of Evans v. Browne, 30 Ind. 514, in which the court made use of language which so well meets the position taken by many who argue against the rule for which we are contending that we quote a portion thereof: "But it is argued that, if the authenticated roll is conclusive upon the courts, then less than a quorum of each house may, by the aid of corrupt presiding officers, impose laws upon the state in defiance of the inhibition of the constitution. It must be admitted that the consequence stated would be possible. Public authority and political power must, of necessity, be confided to officers, who, being human, may violate the trusts reposed in them. This, perhaps, cannot be avoided absolutely. But it applies also to all human agencies. It is not fit that the judiciary should claim for itself a purity beyond others; nor has it been able at all times with truth to say that its highest places have not been disgraced. The framers of our government have not constituted it with faculties to supervise co-ordinate departments, and correct or prevent abuses of their authority. It cannot authenticate 8 statute. That power does not belong to it. Nor can it keep the legislative journal. It ascertains the statute law by looking at its authenti

cation, and then its function is merely to expound and administer it. It cannot, we think, look beyond that authentication, because of the constitution itself. If it may, then, for the same reason, it may go beyond the journal when that is impeached; and so the validity of legislation may be made to depend upon the memory of witnesses, and no man can in fact know the law, which he is bound to obey. Such consequences would be a large price to pay for immunity from the possible abuse of authority by the high officers who are, as we think, charged with the duty of certifying to the public the fact that a statute has been enacted by competent houses. Human governments must repose confidence in officers. It may be abused, and there may be no remedy. Nor is there any great force in the argument, which seems to be regarded as of weight by some American courts, that some important provisions of the constitution would be a dead letter if inquiry may not be made by the courts beyond the rolls. This argument overlooks the fact that legislators are sworn to support the constitution, or else it assumes that they will willfully violate that oath. It is neither modest nor just for judges thus to impeach the integrity of another department of government, and to claim that the judiciary only will be faithful to its obligations."

In the state of California the courts have been upon both sides of the question. In the first case, reported in 2 Cal. 165, (Fowler v. Peirce,) it was held that the courts would go behind the enrolled act. But in Sherman v. Story, 30 Cal. 253, the court, after a most thorough consideration of the question in all its aspects, and in an opinion showing great research and learning, rendered by that distinguished jurist, Judge Sawyer, came to the conclusion that the enrolled act was conclusive, and overruled the former case. This case, in our opinion, is entitled to great weight, for, although there has been an attempt to show that a different ruling would have obtained had the present constitution of California been in force, we are not satisfied that such would have been the case; for while it is true that the supreme court of that state, since the adoption of its new constitution, has gone back to its original position, the opinions in the cases in which it has done so show upon their face that they received no such consideration as did the one reported in 30 Cal., above cited. It is true that the distinguished jurist who wrote the opinion in Sherman v. Story, supra, afterwards, when holding a federal court, came to the conclusion that, under the new constitution of California, the courts were authorized to go behind the enrolled act, but we do not think that in the latter case his reasoning at all compares with that in the former, and it is probable that his mind was unconsciously influenced by the fact that the legislation embodied in the bill

under consideration was so unjust that Judge Field, of the supreme court, was willing to set it aside, as being in violation of the constitution of the United States. And here it may be remarked that in the great majority of cases, in which the courts have held that they could go behind the enrolled act, the legislation attacked has been of such a vicious nature that the mind of any honest judge would naturally seek some excuse by which its effect could be destroyed.

The constitution of Pennsylvania had mandatory provisions directed to its legislature of a pronounced type, and yet the supreme court of that state, in a comparatively recent decision,-that of Kilgore v. Magee, 85 Pa. St. 401,-fully recognized the doctrine for which we are contending, and, in its opinion therein rendered, made use of the following pertinent language: "In regard to the passage of the law, and the alleged disregard of the forms of legislation required by the constitution, we think the subject is not within the pale of judicial inquiry. So far as the duty and the consciences of the members of the legislature are involved, the law is mandatory. They are bound by their oaths to obey the constitutional mode of proceeding, and any intentional disregard is a breach of duty and a violation of their oaths. But when a law has been passed and approved, and certified in due form, it is no part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage. The presumption applies to the act of passing the law that applies generally to the proceedings of any body whose sole duty it is to deal with the subject. The presumption in favor of regularity is essential to the peace and order of the state. If every law could be contested in the courts on the ground of informality in its enactment, the floodgate of litigation would be opened so widely, society would be deluged in the flow."

In Weeks v. Smith, 81 Me. 538, 18 Atl. Rep. 325, the supreme court of that state, after a review of the authorities pro and con, decided that the enrolled act was conclusive upon the courts.

In Railroad Co. v. Governor, 23 Mo. 353, the supreme court of that state, in sustaining the doctrine for which we are contending, made use of the following language: "The constitution is designed to limit the powers of the government, and to confine each of the departments to its appropriate sphere. If the legislature exceed its powers in the enactment of a law, the courts, being sworn to support the constitution, must judge that law by the standard of the constitution, and declare its validity. But the question whether a law on its face violates the constitution is very different from that growing out of the noncompliance with the forms required to be observed in its enactment. In the one case, a power is exercised not delegated, or

which is prohibited, and the question of the validity of the law is determined from the language of it; in the other, the law is not in its terms contrary to the constitution. On its face it is regular, but resort is had to something behind the law itself in order to ascertain whether the general assembly in making the law was governed by the rules prescribed for its action by the constitution. This would seem like an inquisition into the conduct of the members of the general assembly, and it must be seen at once that it is a very delicate power, the frequent exercise of which must lead to endless confusion in the administration of the law."

In Scarborough v. Robinson, 81 N. C. 409, this question, in principle, was passed upon, and the peculiar circumstances render it particularly pertinent to the question now under discussion. In that case an act had regularly passed the legislature, but had failed to receive the signature of one of the presiding officers, and it was sought to give it force by proving the fact of its regular enactment otherwise than by the enrolled bill properly signed. The court held that this could not be done; that the enrolled bill was the final record of the legislature in the enactment of a law; and that such final record was the only thing of which the court could take notice.

The constitution of the state of Texas abounded in mandatory provisions of the most positive nature, directed to the legislature; yet in the recent case of Ex parte Tipton, 28 Tex. App. 438, 13 S. W. Rep. 610, it was held, after full consideration, that the courts could not go behind the enrolled act for any purpose whatever.

In State v. Swift, 10 Nev. 176, this question was fully considered, and, in the opinion therein rendered, the matter very ably argued, and the conclusion reached that enrolled bills are conclusive.

In addition to the above cases we have examined each of the following cases, and cite them as being directly in point upon the question which we are discussing: People v. Burt, 43 Cal. 560; Standard Underground Cable Co. v. Attorney General, 46 N. J. Eq. 270, 19 Atl. Rep. 733. And the following cases, which, though not so directly in point, clearly sustain the principle for which we are contending: Duncombe v. Prindle, 12 Iowa, 1; Clare v. State, 5 Iowa, 509; Eld v. Gorham, 20 Conn. 8; Warner v. Beers, 23 Wend. 172; Hunt v. Van Alstyne, 25 Wend. 605; People v. Devlin, 33 N. Y. 269; People v. Commissioners of Highways, 54 N. Y. 276; Fouke v. Fleming, 13 Md. 392; Bender v. State, 53 Ind. 254; Brodnax v. Groom, 64 N. C. 244; Freeholders v. Stevenson, 46 N. J. Law, 173.

This citation of cases not only furnishes us abundant authority for holding that the enrolled acts are conclusive, but equally good reason for so holding appears in what has been said by the courts of the states in which v.34P.no.2-14

the contrary doctrine obtains. In recent opinions rendered in several cases in the courts of these states, the judges, while recognizing the fact that the rule was so well settled there that they could not properly change it, have expressed regret that the rule which holds to the conclusiveness of such enrolled bills had not been adopted therein. Even in the state of Illinois, where the courts have established a rule of the utmost liberality as to their right to go behind the enrolled acts, the judge who pronounced the decision of the supreme court of that state, in a comparatively recent case,-that of People v. Starne, 35 Ill. 136,-seems to clearly indicate that he regretted that a different rule had not been adopted by the courts of that state. If in that state, which may be said to have been the leader upon that side of the question, even a doubt is expressed as to the policy of the rule there adopted, it is a fact so pertinent that it is entitled to great consideration when a rule upon this subject is to be first announced by the courts of a state.

In our opinion, authority, reason, public policy, and convenience require us to hold that the enrolled bill on file, when fair upon its face, must be accepted without question by the courts, as having been regularly enacted by the legislature. It follows that the act under consideration is a part of the statute law of the state, and that thereunder it was the duty of the respondent to have approved the bond of the relator, and, he having refused to perform this duty, a peremptory writ of mandamus must issue requiring such action on his part.

DUNBAR, C. J., and SCOTT, ANDERS, and STILES, JJ., concur.

(7 Wash. 4) LOMBARD INVESTMENT CO. v. CARTER et al.

(Supreme Court of Washington. July 12, 1893.)

STATUTE OF FRAUDS-CONTRACT FOR SALE OF LAND.

*

After defendant had settled on land owned by a railroad company, he received a letter from the company's land agent, stating that "if you are the first settler' on the land, (describing it,) and "continue to reside upon and improve said land until it shall be offered for sale, you will be entitled to the first privilege of purchase at the appraised valuation." Held, that the letter, as a contract of purchase, is insufficient to satisfy the statute of frauds, and is no defense to a mortgage on the land by one who purchased after it came into market.

Appeal from superior court, Spokane county; W. G. Langford, Judge.

Action by the Lombard Investment Company against Lemuel O. Carter and others to foreclose two mortgages. Defendants had judgment, and plaintiff appeals. Reversed.