Graves v. Alsap

By Court,

Pobtee, J.:

This is an action in the nature of a quo warranto, in which the plaintiff seeks to obtain possession of the office of probate judge of Maricopa county. The complaint alleges that the plaintiff is probate judge of Maricopa county; that on the first Monday in May, 1875, an election was held for the office of prohate judge therein, for the term of two years from the first Monday in June, 1875, and that at such election the plaintiff was duly elected; that he received a certificate of such election from the proper officers and in due form; that he gave bond and qualified as required by law, and that he demanded of the defendant and was entitled to the possession of said office of probate judge, further alleging that the defendant had on the first Monday in June, 1875, usurped said office, and has ever since withheld the same from plaintiff, demanding judgment against the defendant that he be ousted from such office and plaintiff put in possession of the same.

The defendant, in his answer, denies that the plaintiff is probate judge of Maricopa county; denies that the plaintiff was elected to such office at any lawfully authorized election therefor—that the election pretended to have been held in said county on the first Monday of May, 1875, was not authorized to be held by any statute law of the territory of Arizona.

■ He further alleges, that the defendant was probate judge of Maricopa county; that he held said office by appointment of the governor’ of the territory of Arizona, under a commission from him dated the twenty-third day of February, 1875; that said commission by its terms appointed him such judge, to have and to hold the same until the thirty-first day of December, 1876; that he had executed the official bond, taken the oath as required by law, and was in the lawful possession of the office of probate judge.

On the trial of the cause no evidence was given by either party, but the case was submitted on stipulations between the parties as follows: That on or about the twenty-fifth day of January, 1875, a bill was introduced in the legislature of the territory of Arizona, then in lawful session, authorizing and directing that a general judicial election be held throughout the territory on the first Monday in May, 1875, and every two years thereafter, and that at such election a probate judge for each of the counties should be elected; that said bill passed both houses of said legislature, was duly enrolled and presented to the governor for his approval; that the governor returned said bill to the house where it originated—to wit, the council—on the twelfth day of February, 1875, without his approval; that on the same clay the council again passed the said bill by a vote of two thirds of the members thereof, the vote being taken by yeas and nays; that the said bill was then in the regular manner transmitted to the house of representatives for its action, and on the same day the said house passed the said bill by a vote of two thirds of its members, the vote having been taken by yeas and nays, and the said bill was then regularly returned to the council. The council returned the bill to the governor.

It is further stipulated that the election, or pretended election, mentioned in plaintiff’s complaint was held as therein stated; that the plaintiff received the greater number of votes; that he received a certificate of election from the board of supervisors; that he executed an official bond, and demanded and ■ was refused possession of the office, as alleged in the complaint; that defendant held said office by commission of the governor, in maimer and form as set forth in defendant’s answer.

The stipulations in this case do not appear to relate to any questions of fact between the parties that are personal and private in their nature, the determination of which might affect only the interest or conduct of the parties to this action; but they relate almost wholly to what transpired on certain days in a legislative body when having under consideration the question of the passage of a law to provide for the election of a probate judge in every county of the territory—a law general in its character, of interest to the living, and affecting the estates of the dead.

The issue raised by the pleadings clearly is, whether at the time stated in the complaint there was a law of the territory in force authorizing the election of a probate judge in Maricopa county. If there was such a law authorizing such an election in Maricopa county on the first Monday in May, 1875, the same law authorized a similar election in each county in the territory. If the law was then in force, it is still in force, and will by its terms authorize a similar election in May, 1877.

The court was asked to decide the issue, the determination of which reached far beyond the parties of record—to every county of the territory; to decide this not by taking judicial knowledge of suck a law, by examining tke printed statutes, or tke office of tke properly appointed custodian of tke original copies of laws passed—not even from tke proved action of tke legislature in considering suck a law, but solely from tke stipulations of tke parties.

We kold tkat parties to an action can not properly stipulate wkat tke law is tkat is to govern tkeir case, and tkat courts should not regard suck stipulations wken made, and we are equally of tke opinion tkat tkey can not stipulate wkat tke action of a law-making body Avas in a given case, and from tke stipulations thus made ask tke court to determine whether a general law is or is not in force.

Tke agreement of parties tkat a statute with certain provisions is in force does not make it in force. Tke agreement of parties tkat a law-making body did certain things wken considering a bill, even though tke things tkey agree between them to have been done were all tkat were necessary in tke opinion of a court to constitute its passage, does not constitute tke bill a law. In deciding tke issue raised, which we think would have been better raised by demurrer than by ansAver, Ave shall not regard tke stipulation.

Was there, then, a law of the territory of Arizona authorizing the election of probate judge in Maricopa county, as alleged in tke complaint ? There is no suck laAV among tke published laAvs of tke territory. There is no copy of suck law in tke office of tke secretary of tke territory, tke officer who is tke lawful custodian of tke original bills tkat have been properly passed. Not finding any evidence of the existence of suck a Law in tke published laws or in tke office of the secretary, is it competent for tke court to examine tke journals of tke two houses of tke legislature, and seek there ■ to find evidence of suck law having been enacted and still in force ?

Tke language of tke authorities as marshaled in a leading case, Sherman v. Story, 30 Cal. 253, is stated tkat “ the result of the authorities clearly is, tkat whenever a general statute is misrecited, or its existence denied, tke question is to be tried and determined by the court as a question of law. There is no plea by which its existence can be put in issue and tried as a question of fact.” In the same case it was held, “ tkat tke court, upon passing upon tke validity of a law that appeared among the published laws, would not examine the journal or the enrolled bill to see if it was published as passed.”

If it is not competent in such a case to examine the journal or enrolled bill, to verify or alter the published law, it appears to us still more certain that the same rule should govern in a ease like the present, where there is a total absence of any evidence of legislative action upon the law in question. If the enrollment, authentication, and depositing with the secretary of state is conclusive that a law has passed, the want of all these things may be conclusive that there is no such law. It appears to the court that it was never intended that the journals of a legislative body were to be regarded as evidence to the courts as to what laws were enacted by it, and that a court, in a merely collateral issue, would not be warranted in declaring a general law in force on such evidence alone.

The presumptions of law all are, that if the legislature had passed the law under consideration the same would have appeared among the published laws, or at least they would have seen that the secretary of the territory was provided with an enrolled copy thereof.

We are therefore of the opinion that on the first Monday in May, 1875, there was no law of the territory authorizing the election of a probate judge in Maricopa county, and that the election so held was without [authority of law, and void. It follows from these conclusions that the judgment of the district court must be affirmed, but upon views in some respects different from those which seem to have prevailed in the court below.

Judgment affirmed.

Tweed, J., concurred.