The defendant, as chamberlain of the city of New York, received in 1863 over two millions of dollars on account of the State tax. Over nineteen thousand dollars, part of the sum, the defendant retained, claiming that he was entitled to the same as fees or percentage on the amount so received by him for the State. On the 4th day of May, 1863, and before the receipt of the money above mentioned, the legislature passed an act entitled "An act to provide means for the support of the government, c.," authorizing certain taxes to be levied and collected, and the fifth section of which act, first clause, is as follows: "It shall be the duty of the several county treasurers of this State, on or before the first day of April in each year, to pay to the treasurer of this State the amount of State tax raised and paid over to them respectively, retaining the compensation to which they may be entitled, and which compensation shall not exceed the amount now authorized by law, and shall not, in any case, exceedthe sum of two thousand dollars." The rights of the parties depend on the validity and construction of this section of the act of 1863, the defendant contending that such act, and especially the fifth section, was not passed by the legislature and did not become a law; that if passed and a law of the State, the section was not intended to and did not limit the compensation of the defendant for the receipt and payment of moneys levied and collected under tax laws enacted previous to May 4, 1863, and that the money sought to be recovered had been paid in to him under such former laws, and lastly, that the section did not apply to him in terms as the chamberlain of the city of New York. *Page 283
Chapter 393, in the printed statutes of 1863, is an exact copy of the engrossed and signed bill on file in the office of the secretary of State, excepting certificates of the various officers. On that bill or record is the proper certificate indorsed, signed by the then secretary of State as follows: "This act having been approved and signed by the governor on the 4th day of May, 1863, I hereby certify that the same became a law on that day." It is the duty of the secretary of State to receive and deposit in his office every bill which shall have passed the senate and assembly, and which shall have been approved and signed by the governor. (1 R.S., p. 187, §§ 10, 11.) "He shall certify and indorse upon every such bill, the day, month and year when the same became a law, and such certificate shall be conclusive evidence of the facts therein declared." The fact that the bill has passed the senate and assembly is evidenced to the governor by the certificates of both the presiding officers of those houses, and then when the governor approves and signs the bill, and the same is deposited in the office of the secretary of State, and by him indorsed, the record is made up and completed, the bill has become an act, and the act has become one of the statute laws of the State. A serious question at once arises in this case, whether any court can go behind this record and determine whether any rule of parliamentary law has been violated.
The legislature, under constitutional limits, is the supreme law maker of the State. Within the Constitution the legislature is supreme, and when a law confessedly within the power of the legislature to make, comes down to the people, authenticated by the presiding officers of the respective houses, approved by the governor and certified and declared by the secretary of State to be the law of the State, no citizen, I think, in a private controversy, can call upon the courts to go behind the record thus made up and impeach the validity of the law, by showing that in its enactment some form or proceeding had not been properly followed or adopted by the legislature, the supreme law maker. The court decides what the law is, which the legislature has made, and enforces *Page 284 it by its judgments and executions. As both legislature and courts are restricted by the Constitution, which is the supremalex when there is a violation of that supreme law by the law making power, the court may declare such violation, and refuse to enforce an unconstitutional law. But in such a case the court does not go behind the record to impeach the law, by showing the absence of forms or irregularity of proceeding by the law maker, but it compares the law sent down, with the Constitution, the higher law, and determines that the former is in conflict with the latter, and of consequence that the former is null and void. That the record itself may be inspected and examined, for some purposes, by the court, has been held by some of the most learned and able judges of the State. Thus, Mr. Justice BRONSON, in ThePeople v. Purdy (2 Hill, 34), says: "It has not been denied that the judicial tribunals of the State may, in some way, look beyond the printed statute book for the purpose of ascertaining whether bills coming within the two-thirds clause of theConstitution, have received the requisite number of votes, and although I have felt a good deal of difficulty on that question, I am inclined to the opinion that such an inquiry may be instituted. The question is no doubt one of great delicacy, but if the courts have the right to entertain it, the duty is imperative, and we are not at liberty to shrink from its performance." In that case he says he had examined the original engrossed bill on file in the office of the secretary of State, and found it was certified by the presiding officers, in the usual form of a majority bill, and held that if not conclusive it was prima facie evidence that it could not be deemed to have been passed by the assent of two-thirds of the members elected to each house. But in such a case the legislature had declared its will and given its consent. 1 R.S., page 156, § 3, is as follows: "No bill shall be deemed to have been passed by the assent of two-thirds of the members elected to each house unless so certified by the presiding officer of each house." The record itself must show whether the law had been passed as a two-thirds law, and inasmuch as the printed statute book does not contain the whole *Page 285 record, an inspection would become necessary, where the fact was in controversy. Such an inspection, for such a purpose, seems to me to be unobjectionable. But if that was a question of delicacy, how much more delicate does the question become when the court is called upon to go behind and beyond the record and inquire into the regularity of the proceedings of the legislature itself, and to declare that by reason of such irregularity, if found to have existed, the law is null and void. When the same case, ThePeople v. Purdy, afterwards came before the court for the correction of errors, Mr. Senator PAIGE (4 Hill, 394), said: "We have a right, I think, to go behind the printed statute book in order to ascertain whether bills have been constitutionally passed. Judges who are bound to take notice of a public act must determine this question by an inspection of the record, for nultiel record cannot be pleaded to a statute." Mr. VERPLANK, Senator, in Warner v. Beers (23 Wend., 135), says, among other things: "The inspection of the record, when judged necessary, has the sanction of the most venerable authorities and oldest usage of our common law," quoting DYER and COKE, c. In that same case Lieutenant-Governor BRADISH, then president of the senate, said (23 Wend., 169): "But if all courts and officers called on to decide upon the validity or give effect to any act of the legislature, are not only at liberty but are even required to disregard that certificate (certificate of secretary of State), and to go behind it and inquire in what manner and by what vote the act was passed by the legislature, indeed in what manner it passed through all its various stages, until, as alaw it was deposited in the office of secretary of State and thus became a public record, the evils which would necessarily result from such an interpretation can hardly be imagined. That certainty as to what is the law, which is so important to all, and which it has been the object of the statute to establish, would be at once destroyed and everything be thrown into doubt, for if this doctrine be once admitted as correct it is not readily perceived why it may not, indeed why it must not be extended to all legislative acts, as well *Page 286 those which require for their passage the assent of only a majority of a quorum present, as those which require for that purpose the assent of two-thirds of the members elected to each branch of the legislature. This broad interpretation once admitted it would be as difficult to limit these inquiries as it would be to calculate their inconveniences or compute their mischiefs. But what would be only difficulties within one State would be impossibilities out of it. If a State statute, why cannot an act of congress or a statute of another State be impeached in the same way. (See Green v. Weller,32 Miss., 650; 23 Mo. [2 Jones], 353; and Eld v. Gorham, 20 Conn., 8.)
But if the court can go behind the record and inquire into the regularity of the proceedings of the legislature, then I am of opinion that this law was duly enacted according to the approved usages of legislative bodies and the established rules of parliamentary law. The law had its origin in the assembly. The bill was introduced and was considered in all its stages, and passed and sent to the senate for concurrence. It met the approval of the senate, and was passed by that house without amendment, and after such passage, was returned to the assembly, was signed by the presiding officers and sent to the governor. This was according to well established parliamentary usage and law. The legislature had declared its will. No further separate action was required or allowed. The streams issuing from senate and assembly fountains had flowed together and were now united in one. The united action of both houses would be necessary to recall the bill. In this case, however, the assembly, without the consent, and, as afterwards appeared, without the approval of the measure by the senate, sent a message to the governor, asking the return of the bill to the assembly. This was done by the governor probably as an act of courtesy, and without knowledge, on his part, that it was against the wishes of the senate. The assembly, on receiving the bill, struck out and erased the fifth section before referred to. The bill was again sent to the senate. That house refused to concur in the amendment, and resolved that, inasmuch as the bill had *Page 287 passed both houses and been sent to the governor, it was, in the judgment of the senate, beyond the control of either house without the consent of the other, and that body declined taking any further action in regard to it. There were, however, committees of conference appointed, but there was no further agreement between the senate and assembly. The legislature adjourned on that day, and the clerk of the assembly prepared a new engrossment of the fifth section, and the bill was again sent to the governor, who signed it. The bill was thus restored to its original condition. In that form it had been passed by the legislature, and, by the approval of the governor, became a law. In this proceeding, on the part of the clerk, he performed his proper duty. In 1768 a bill which had originated in the house of commons and been passed by the house, was sent to and had been passed by the house of lords. The bill was presented by the house of lords to the king for his assent, without notifying the house of commons of the agreement, on the part of the lords, to the passage of the bill. It was conceded that this was an informality, but it was said it was a mere matter of ceremony, and did not affect the validity of the bill. "Lord Marchmont and Lord Sandys, both lords of great experience in parliament, replied that when both houses had passed a bill, it was not in the power of any person to withhold it from being offered for the royal assent, or (as they expressed themselves) to take it off the table." (Hatsell's Precedents, Lond. ed., 1796, 2d vol., p. 320), and on page 321, note, it is said, referring to proceedings in 1794, "indeed I suppose that when both houses have passed a bill, it is not in the power of the clerk of the house of lords to withhold inserting it amongst those that are offered for the royal assent, without an express order of the house; and if the lords should give such an order, without sufficient reason, it would be an infringement of the rules of parliament." This bill had passed both houses and been sent to the governor for his approval. The recall by the assembly was an infringement of parliamentary law. It was an attempt to do alone what, if it could be done at all, required the joint action of both senate and assembly. All *Page 288 subsequent proceedings by the assembly were irregular and of no effect, and when there was a failure to procure the assent of the senate to an amendment, it was, I think, the duty of the assembly to return the bill to the governor. Failing to do this during the session, the duty devolved on the clerk. These remarks are only intended to show what is believed to be well settled parliamentary usage and law. The resolve of the senate that the matter had passed beyond separate control was, I think, clearly right. If we were permitted to go beyond the record, therefore, it would not vary the decision in this case.
The question whether the fifth section of the act of 1863 applies to the chamberlain of the city of New York, is answered by a simple quotation of part of section 101. (1 R.S., 5th ed., p. 865.) "The chamberlain of the city and county of New York, shall be considered the county treasurer thereof." The article of which that section is a part relates to the county treasurers, and as far as relates to the duties of the chamberlain in receiving and paying over the moneys of the State, he is clearly a county treasurer. The law says he is "considered the county treasurer." If he is so considered in the statute, it would be absurd to say he is not the county treasurer. If the defendant is chamberlain in his dealings with the city of New York, he certainly is county treasurer in his dealings with the State.
The fifth section of the act is general in its terms and requires the treasurers to pay over the State tax raised and paid to such treasurers, not the State taxes to be levied and collected under and by virtue of the law of 1863, but all State taxes that may come into their hands. The taxes in question came into the hands of the defendant some time after the act of 1863 became a law. The defendant had no vested interest in the emoluments of his office which the legislature could not affect. The prospective salary or emoluments of a public office are not property, and may be increased or reduced by law at all times, except in the cases where the Constitution has forbidden it. (Connor v. The Mayor, 1 Seld., 285.) There is no constitutional provision forbidding *Page 289 the legislature interfering with the percentage to be charged or the emoluments to be received by the county treasurer of New York.
In my opinion the judgment is right and ought to be affirmed.
In which all the judges concurred.
Judgment affirmed.