DISSENTING OPINION. We think the relator is entitled to a writ (a) prohibiting the Marion Circuit Court from issuing an injunction restraining the relator from publishing in the acts of 1931 a certain House Bill No. 6, and (b) restraining said court from citing relator for contempt for disobedience of a temporary injunction already issued by the Marion Circuit Court prohibiting the relator from publishing said House Bill. The suit which occasioned relator's application for a writ of prohibition was instituted in the Marion Circuit Court, not *Page 513 for the purpose of restraining the Secretary of State from acting under an allegedly unconstitutional statute, but for the purpose of restraining the Secretary of State from acting under an admittedly valid statute in the performance of his duties in connection with the printing and publishing of the acts of the General Assembly of 1931. Section 11646 Burns 1926, provides that the Secretary of State "shall deliver to the state printer, at the earliest day practicable, copies of all acts, joint resolutions," etc.; other sections provide for other action by the Secretary of State in the matter of completing the publication and distribution of the acts of the General Assembly. The theory upon which the temporary injunction was sought and obtained was that House Bill No. 6 was not an "act" of the general assembly; that the Secretary of State was under no duty to publish and circulate the same; and that the publication and distribution of House Bill No. 6 would result in irreparable injury. Without considering the question of the validity or invalidity of House Bill No. 6, we believe that when "the manuscript containing House Enrolled Bill No. 6 which bears the signature of the Speaker of the House of Representatives and of the President of the Senate, as approved and signed by the Governor of the State of Indiana," was delivered by the Governor to the Secretary of State, such manuscript constituted an act of the General Assembly within the meaning of § 11646 Burns 1926; and consequently the Secretary of State has been enjoined from the performance of an act expressly required of him by statute. Granting that the act in question is purely ministerial, a court of equity has no jurisdiction, upon the basis of the showing in this case, to interfere with its performance. If House Bill No. 6 is not a valid act, it cannot be made valid by publication and distribution. All presumptions of validity which *Page 514 can exist in favor of House Bill No. 6 arose when it was deposited with the Secretary of State. Evans v. Browne (1869), 30 Ind. 514, 95 Am. Dec. 710; Bender v. State (1876),53 Ind. 254; Board, etc., v. Burford (1884), 93 Ind. 383;Western Union Telegraph Co. v. Taggart (1895), 141 Ind. 281, 40 N.E. 1051, 60 L.R.A. 671; Lewis v. State (1897),148 Ind. 346, 47 N.E. 675. Any attack which can be made on a purported legislative act before publication and distribution can be made whenever such act is sought to be enforced as the law of the state. If the facts in the history of House Bill No. 6 make inapplicable the rule of conclusive presumption of regularity and validity, the rule should be disregarded in any proceeding attacking the validity of said bill. Interference by one department of government with the normal functioning of another department in the performance of its duties presents a serious and delicate problem, and the courts should refrain from using the extraordinary powers of injunction and prohibition unless clearly required to do so in order to avert serious injury. No irreparable injury, in fact, no inconvenience, in the matter of testing the validity of House Bill No. 6 would be occasioned by requiring interested parties to raise the question after publication and distribution of the acts of the 1931 General Assembly. The merits of the controversy could be tried out by use of the declaratory judgment statute, admirably designed for such a situation (Zoercher v. Agler [1930]; ante 214,172 N.E. 186, 172 N.E. 907, 70 A.L.R. 1232); or by a suit to enjoin the Public Service Commission from enforcing the act as a law of the state; and one suit will dispose of the controversy.
The present situation demonstrates the wisdom of using one of the foregoing courses. If the Secretary of State had not been enjoined, the acts of the 1931 General Assembly would have been published weeks ago *Page 515 and a suit to test the validity of House Bill No. 6 on the merits would now be well advanced. Furthermore, we should have avoided establishing the dangerous precedent of judicial interference with the Secretary of State in his plain legal duty of publishing and distributing the acts of the General Assembly, an indirect interference with the legislative function itself. The writer sees no difference in principle between enjoining the publication and distribution of a Senate or House bill which is alleged to be "no act" because of failure to follow the requirements of the Constitution in respect to procedure, and one which is alleged to be unconstitutional because its subject-matter violates the Constitution. The only ground upon which a court can declare any action of the General Assembly invalid is that of unconstitutionality. In the instant case, it is urged that House Bill No. 6 is "no act" of the General Assembly for the reason that it was not passed by "a majority of all members elected to each house" and not legally "signed by the presiding officers of the respective houses," as required by § 25, Art. 4 of the State Constitution, which argument, in effect, reduces to the proposition that the bill is unconstitutional for the reasons given. If the House Bill No. 6 is not an "act" of the General Assembly, it is because the procedure connected therewith, while the bill was still under the control of the General Assembly, was not in accordance with constitutional requirements; in other words, the General Assembly is without power, under the Constitution, to enact a bill in the manner alleged to have been followed in the case of House Bill No. 6. But, if the 1931 General Assembly had passed a bill containing more than "one subject and matters properly connected therewith" and with a title which did not express any of the subjects in the body of the act, such action of the General Assembly, though embodied in the form of a bill, would have been unconstitutional *Page 516 and have resulted in a nullity, for the reason that such action does not meet the requirements of § 19, Art. 4 of the State Constitution, which provides that "every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title." If the constitutionality of House Bill No. 6 can be litigated by the device of a suit to enjoin the Secretary of State from publishing and distributing it, why should not the same device be available to test the constitutionality of the foregoing assumed act which violates § 19, Art. 4 of the State Constitution? Or to try and determine the constitutionality of any act, whether the supposed constitutional defect is due to manner of enactment, form or subject-matter?
Further, we do not believe that the Secretary of State has any discretion in the matter of omitting one or more acts from his publication of the acts of the General Assembly and we do not think the courts should, in effect, amend § 11646 Burns 1926. In the cases of McCool v. State (1856), 7 Ind. 378; State v.Dunning (1857), 9 Ind. 20, and Bravard v. Cincinnati, etc.,R. Co. (1888), 115 Ind. 1, 17 N.E. 183, the acts which were published separately and circulated by the Secretary of State were published and circulated under special authority of the General Assembly. We believe that the Secretary of State, in the absence of special authorization by the General Assembly, is under a legal duty to include in one publication all acts of a particular session of the General Assembly. We think it cannot be seriously contended that the Secretary of State has any discretion in the matter, nor that the present Secretary of State could have refused to publish House Bill No. 6 in the absence of any court action challenging the validity of said bill. We do not think the facts of the unusual, not to say weird, history of House Bill No. 6, would constitute a defense to any action of mandate to compel its publication *Page 517 by the Secretary of State. The relator may well doubt whether he can, without violating his oath of office, publish the remaining acts of the 1931 General Assembly, even though the order of the Marion Circuit Court covers only House Bill No. 6.
We think the allegations in the original complaint filed in the Marion Circuit Court make a prima facie case for judicial investigation of the alleged invalidity of House Bill No. 6, and consequently the Marion Circuit Court should not be prohibited from taking jurisdiction over the subject-matter, when presented in a proper suit, but we cannot agree that the facts alleged give jurisdiction to the Marion Circuit Court to restrain the Secretary of State from including House Bill No. 6 in the published acts of the 1931 General Assembly of Indiana.
Roll, J., concurs in this opinion.