Concurring. — I concur with the views. expressed in the opinion of Mr. Justice Huston in this case. His conclusions, and the reasons given therefor, I regard as being in- perfect harmony with the letter and spirit of our constitution. Mr. Chief Justice Sullivan, while concurring with the conclusion reached in this case, does not agree with the majority opinion on two points which I» will briefly discuss.
1. That the legislative journals must affirmatively show a compliance with the -requirements of the constitution in the passage of a bill, the validity of which is questioned. Upon this point we are cited to a number of authorities, and furnished with a number of quotations. But a careful study of the authorities cited is all that is needed to show that the rule therein announced is based merely upon precedent — because some court has so decided — and not upon reason and common sense, the basis and foundation of all law. The careful and painstaking student finds many inconsistencies in the authorities touching constitutional questions. A careful study of the adjudicated cases leads to the conclusion th.at both the legislative and judicial departments of government of several of our states have chafed under the limitations and restrictions imposed by constitutions, and that they have at times done indirectly what the constitution directly forbids. In one case cited by Mr. Chief Justice Sullivan the constitution prohibited the introduction of any bill after the fiftieth day. A bill to incorporate a township had been introduced in due season, but after the fiftieth day a substitute for this bill, incorporating a city outside *457of the limits of the proposed township was introduced and adopted. The title and subject matter of the original bill were entirely changed, and in lieu thereof a new title and a new proposition or subject matter was substituted. The substitute bill passed, and was approved by the governor. The court held the act valid. In another case which he cites from the same court a bill to incorporate a township had been introduced before the fiftieth day, but after the fiftieth day a substitute for such bill, for the purpose of incorporating a county out of the same territory, was introduced, adopted, and passed. The court held this bill valid. It is apparent that the object of said' provision was to prevent the introduction and “railroading” of bills through the legislature during the last days of its session, and that the legislature should have the last ten days of its seasion to devote to those propositions which had been submitted to it prior to the fifty-first day of its session. But in both of these cases the object of the provision was wholly defeated, and the legislature, under the guise of amendment or substitute, did indirectly what was expressly prohibited by the constitution. The object and purpose of creating a city, a township or precinct, and a county, as well as the powers exercised by each, are so entirely different that it is difficult to see how the court held the amendment or substitute in either of these cases germane to the original bill. In the first case it is easy to see that the entire population of the county might be heartily in favor of creating the proposed township. It is easily conceived that the people of the county might have been opposed to creating the new city, and perhaps a good majority of the residents of the new city were opposed to the incorporation of it; and it requires no great stretch of imagination to surmise that in the last ease the great majority of the people of the old county were opposed to any division of such county, or the creation of a new county out of part of their territory. Perchance, in both cases, the people immediately interested, after carefully watching the proceedings of the legislature to see if any proposition affecting their local government and interest, to which they were opposed, should be introduced into their legislature, at the end of the fiftieth day saw that none had been introduced, and relying upon the aforesaid provision in their constitution, *458aud believing tbat no such proposition could thereafter be proposed, ceased tbeir vigilance, and quit watching the proceedings of their legislature. The existence of such conditions is suggested by the fact that the proposition to create the city in the one case, and the new county in the other, came in under mask, and not openly and in the usual way. It was doubtless through such apparent violations of plain constitutional provisions that Judge Cooley was induced to comment upon such frauds by giving the illustrations of substituting, by amendment, for the proposition to incorporate the city of Siam, the proposition to dam the Wild Cat river, so aptly quoted by Mr. Justice Huston. The lessons to be learned in these two cases show the wisdom of obeying the constitution in letter and spirit, the necessity of refusing to recognize as law any act which is expressly prohibited by the constitution, whether passed directly and above board, or passed indirectly, under cloak, or the habiliment of fraud, and show the ease with which the plain provisions of the supreme law of the land can be evaded and effectually defeated by the joint action of the legislature and the courts. Now, courts do not make, but must obey and enforce, the law. In our constitution we find the supreme standard by which all statutory enactments are to be measured and judged. If, in a given case, the court must and does apply this standard, and finds that the statute falls short of the required measure, the court’s duty is plain. In such case the court has no discretion, but must follow the constitution, or else, as was said by Judge Cooley, be guilty of “a violation of official oath and public duty.” If courts, through fear of appearing indelicate, recognize acts which are prohibited by the fundamental law, when such acts are indirectly committed, they are not discouraging, but encouraging, fraud, and are not closing the gates to fraud, but opening them and inviting entrance thereto.
As evidence of the inconsistencies of writers upon constitutional law, read the quotations from Mr. Sutherland, Judge Cooley, and Mr. Black given by my associates in this case. Then carefully study all of the authorities cited. How, then, are we to determine whether a bill becomes a law or not? In my opinion there is but one way to ascertain, and that is to *459look to the journals to see if the legislature has done those things commanded by the constitution. The object of requiring the legislature to keep a journal of its proceedings, in my opinion, is that the people, from whom all power comes, may have positive and permanent record evidence as to what has become law and what has not. Under this view it becomes absolutely necessary that the journals ■show that the steps expressly commanded by the constitution in the passage of a bill were taken. I confess that it is embarrassing for a court to take this position. To avoid such embarrassment, for reasons of expediency, and on account of a so-called public policy, some of the courts have adopted the view of Mr. Chief Justice Sullivan- — that, in order to hold a statute void for the reason that it was not passed in the mode required by the constitution, it must affirmatively appear by the journals that some constitutional requirement was not obeyed, and that the silence of the journal as to whether a requirement was obeyed or not is not sufficient to authorize the court to hold that such requirement was not obeyed. This proposition involves the absurd anomaly of requiring the plaintiff to prove a negative, and to prove it by a dumb witness — one who does not speak, but is silent upon the question at issue. We will illustrate the absurdity of the proposition by supposing the following case, to wit: A bill is introduced into the Senate, and read one time. When the second reading of bills is reached the next day, this bill, owing entirely to oversight, is overlooked, and not read the second time. Under these circumstances, the Senate journal is silent as to the second reading, and does not say whether it wás read the second time or not. Afterward what ■should have been the third reading occurs, and the journal so-shows. The bill passes both Houses, and is signed and approved. Now, bear in mind that the bill was not read three times in the Senate, hut only twice. The journals show what was done, but do not show what was not done. By the express terms of the constitution, this bill is not law, because it was not read three times by each House of the legislature. Now, •applying the doctrine of presumption contended for by Chief Justice Sullivan, that because the journal does not say in so many words “this bill was not read three times,” the court must, *460by presumption, supply the second reading, and thus make a. law which the legislature did not, according to the constitution,, make, and yoú effectually eliminate this provision from the constitution. If the court can read the bill for the legislature onetime, it may do so two, or even three, times. If the journal need not necessarily show anything in regard to the passage of a bill except the final vote thereon, then the legislature may fail to read a bill at all, and by refusing to say anything about the reading of it the court must say that it was read three times,, because the journal does not expressly say that “this bill was not read three times.” The idea is monstrous, and the danger-of such a rule is fully apparent, and its adoption would be tantamount to a refusal to obey and support the constitution.
The functions of the legislature consist exclusively in making laws, with but few exceptions. Then why command it, in the supreme law of the land, to “keep a journal of its proceedings,” unless the journal is to show what bills have been enacted inte law? Mr. Chief Justice Sullivan says in his opinion that the first clause of section 13, article 3, of the constitution, “commands the legislature to keep a full and complete journal of its-proceedings.” This is undoubtedly true, and it is apparent that the object of this provision is to make the legislature show what it has done, leaving nothing whatever to implication. And,, when the legislature says what it has done with regard to the^ passage of any bill, it negatives the idea that it has done anything else in regard thereto. Silence proves nothing where one is commanded to speak. But in such case the refusal of the witness to say that he did that which he should have done would justify the presumption that he did not do it. Our constitution commands certain things to be done in regard to the passage of a bill, and says that no bill shall become a law unless these things are done. It seems a travesty upon our supreme law to say that it guarantees to the people the right to have their laws made in this manner only, and that there is no way-of enforcing this right, or for the court to say that this is law when the constitution says it is not law. There is one safe course which is in harmony with the constitution, and that is to adhere to the rule that the legislature must show, as commanded by the constitution, that it has done everything re*461quired by the constitution to be done in the serious and important matter of making laws. This is the rule of evidence provided by the constitution. It is not presumptuous in the courts, nor disrespectful to the legislature, to judge the acts of the legislature by its own evidence; and, as said by Mr. Chief Justice Sullivan in his opinion herein: “The commands found in sections 13, 14, and 15, article 3, of the constitution of this state, are directed to the members of the legislature, and their oaths of office require them to see to it that the provisions of these sections are conscientiously complied with.” The only difference between us is that he thinks that, in courtesy to the legislative department, the judiciary should, by presumption, supply its omissions, while I cannot think so. To deal fairly with the legislature, and at the same time support the constitution in letter and intent, we should judge the acts of the legislature by its own evidence — neither adding anything thereto nor taking anything therefrom. It is not presumptuous, indelicate, or disrespectful for the court to say: “We presume that the legislature obeyed the obligations of the official oath, and recorded in its journal every step taken by it in the passage of this bill. And because the journals do not show that this bill was read the second time in the Senate, or that such reading was, on account of urgency, dispensed with by two-thirds of the Senate on an aye and nay vote, we presume that the second' reading was inadvertently overlooked in the Senate, and did not occur. And because this bill was not read three times in each House, the constitution says it is not law, and we cannot recognize it as law.” This is, to my mind, the only safe and correct rule. It imposes no duty not enjoined by the constitution, and works no hardship. Its observance simply carries out the provisions of the constitution, in letter and spirit, preserves the constitutional right of the people to have their laws made in a careful and considerate manner, and properly respects the integrity of the legislative department. But violations of the express mandates of the constitution by the legislature, whether occurring through inadvertence or otherwise, cannot be tolerated. To prevent fraud, and to avoid the probable error of the court adjudging an act passed by the legislature to be law which by the constitution is not law, the court is compelled to adopt the *462rule that the journals of the legislature must affirmatively show that the express requirements of the constitution were complied with in the enactment of any law which is attacked on the ground that it was not passed in the manner required by the constitution. The journal is read in each House daily, and it is proper to conclude that the members and officers will see that it is correct. In fact, the journal is kept under the immediate supervision of each member. It is no great burden for the members to see that bills are reported, printed, read three times, and passed by an aye and nay vote, and that these steps are shown by the journals. The constitution requires it, and, being so required, courts should take the journals for what they say, and regard them as telling “the truth, the whole truth, and nothing but the truth.” We do not impugn the integrity of the legislature. We think the fault lies principally in the fact that the legislature has followed the procedure of its territorial predecessors and that of our national Congress, inadvertently overlooking the fact that our state constitution imposes limitations and restrictions upon the legislature which were not imposed upon the territorial legislature or upon Congress; there being no provision in the federal constitution requiring Congress to read all bills three times, etc.
Our views of the good faith and integrity of the legislature • can best he expressed by quoting the language of the supreme court of the state of California in the case of Weill v. Kenfield, 54 Cal. 111, as follows: “To our respect for a co-ordinate department of the state government is added our personal regard for the distinguished gentlemen who have so ably presented the view of this case from which we have felt constrained to dissent. We might freely admit that none of the restrictions of' the constitution would be necessary to the proper discharge of their- duties by the honorable gentlemen who compose the present assembly. But the people may not always he so happy in the choice of their representatives, and we deem it our- duty to require a strict compliance with mandatory provisions intended to prevent evils in the past, and which may reappear in the future.” The doctrine of presumption, as applied by Chief Justice Sullivan to the passage of bills, originated in-England, where they have no written constitution. The Eng-*463lisli rule stops all inquiry at the enrolled bill, while the rule contended for by Mr. Chief Justice Sullivan permits the court to go back of the enrolled bill to the journal, to see if it passed by the required aye and nay vote, supplying everything else that the journal is silent about. The rule for which he contends is the English rule with a slight modification. If the court is to supply the principal part of the evidence by presumption, it would be more consistent to supply it all, and refuse to go back of the enrolled bill. In Weill v. Kenfield, supra, the supreme court of California, in discussing the question under consideration, say: “It was intended by and declared in the clause so often referred to that the reading of a bill shall no longer be implied from the mere silence of senators or assemblymen, but that the consent of the House in which the bill is pending to a waiver of the actual reading shall be indicated only by a formal vote of 'yeas and nays/ when two-thirds shall declare that an 'urgency’ has arisen which renders it proper to dispense with the reading. The vote upon dispensing with the reading goes upon the record, so that each representative may be held responsible to his constituents for his conduct in respect to this, as well as other questions. The entry must now accord with the fact. It was not to be entered in the journal, as was often formerly the case, that a bill is read when it is not read. It must either be read, or the members called on to declare affirmatively that it shall not be read, because of pressing and urgent necessity. We do not dare to determine that any constitutional prerequisite to the validity of a law is of no practical service. It may be, as suggested, that the evil effects of .the delays caused by the interpretation of the language of the constitution we have adopted may more than counterbalance any benefits that may accrue to legislation by the additional opportunities afforded each lawmaker to become acquainted with the contents of all bills. But we are not permitted to consider the policy of a provision, where its language, as in the present instance, seems to us plain and positive. The whole of this line of argument is disposed of by the phrase, ‘Ita lex scripta estf" In People v. Starne, 35 Ill. 121, 85 Am. Dec. 348, and note, the supreme court of Illinois use this language: “Were it not for the somewhat peculiar provision of *464our constitution, wbicb requires tbat all bills, before they can become a law, shall be read three several times in each House, and shall be passed by a vote of a majority of all the members elect, a bill thus signed and approved would be conclusive of its validity and binding force as law. But this provision having been adopted to prevent improvident legislation, and to prevent the enforcement of bills that were never enacted into laws, the means of its enforcement are implied. It is true that these means are negative, and not positive, in their character. Whilst neither of the other co-ordinate branches of the government have authority to command its observance, the judicial and executive departments are not bound to enforce such ■bills as laws. Whilst they are prima facie binding, still, when it appears from the journals that either of these constitutional requirements is wanting, the provisions of the bill will not be enforced. According to the theory of our legislation, when a bill has become a law there must be record evidence of every requirement from its introduction until it becomes a law, and this evidence is found upon the journals of the two Houses.” In the last two sentences the .learned Illinois court simply expresses in other words the rule announced in the original opinion in this ease, viz., that the journals must affirmatively show that the requirements of the constitution were complied with by the legislature in the passage of a bill the validity of which is questioned. With all due deference to Judge Harlan, for whose learning and eminent ability I have the profoundest respect, I must say that his interpretation of the above language of the supreme court of Illinois seems strained and unauthorized. The same learned court, in Ryan v. Lynch, 68 Ill. 160, held that the certificate of the Secretary of State, giving “full and true copies of the journals of the Senate and House of Representatives, so far as the same relate to the passage of the bill,” was competent evidence to prove “the nonexistence of any particular fact.” The nonexistence of the fact is shown by presenting the journal, or full copies thereof, from which it appears that certain steps were not shown. The journal showed what facts existed. It should have shown other facts. Its failure to do so proved their nonexistence.
*465Touching the second point discussed by Mi. Chief Justice Sullivan, I shall content myself with saying that Mr. Sutherland cites as sustaining the rule that amendments need not be read three times only three cases, to wit: Miller v. State, 3 Ohio St. 475; People v. Wallace, 70 Ill. 680; State v. Platt, 2 S. C. 150, 16 Am. Eep. 647. The two last-named cases merely mention the rule, and do not attempt to give any reason whatever in support of it. And in the Ohio ease, after saying that “it is not unusual, in parliamentary proceedings, to amend a bill by striking out all after the enacting clause and inserting a new bill,” the court proceeds to say: “When the subject or proposition of the bill is thereby wholly changed, it would seem to be proper to read the amended bill three times, and on different days, but when there is no such vital alteration three readings of the amendment are not required.” Notice that the vital alteration consisted in wholly changing the subject or proposition of the bill. Did the learned court mean to convey the idea that, if some part of the subject or proposition remained — a one-hundredth part, for instance — it was not neces- . sary to read the amendment, although it should wholly change ninety-nine hundredths of it? Such a rule is not based upon reason. The reasoning on this point in the opinion of Mr. Justice Huston herein is so clear and consonant with common sense, and so apparently in harmony with the evident intent of our constitution, that I accept it fully, and refuse to blindly follow a small number of precedents that are not based upon reason and common sense, but opposed to tbe letter and intent of our constitution. For the reason that it is the unanimous opinion of the court that the act in question is void, a rehearing is properly denied.