delivered the opinion of the Court:
This was an application for a peremptory writ of mandamus, to compel the State treasurer to countersign and register an auditor’s-warrant. The journals of the two houses of the general assembly, not having been returned and filed with the secretary of State, and still being in the hands of the clerks of the two houses, the auditor acted alone upon the bill signed by the president of the senate, the speaker of the house, and approved by the governor, which was regularly deposited in the office of the secretary of State as a valid and binding law. By the defendant it is insisted that whilst the bill has the forms of law, it was in fact never passed by the house of representatives, and consequently has no binding force.
The petition sets up a performance of services, which, if the act is binding as a law, entitles relator to a warrant on the treasury, for the sum allowed by the governor. ISTor does the return controvert the correctness of the charges made for the services rendered, but relies alone as a defense upon the a/llegation that there is no law authorizing its payment. - The return denies that the bill making the appropriation for the payment for such services, and under which the warrant was drawn, was ever adopted, or became a law, and that there is any legal authority for countersigning or registering this warrant. It also alleges, that the bill under which it was drawn, was never passed by the house, but was substituted for a bill that did pass that body, and was presented to the speaker and by him signed and also approved by the governor.
It appears from the senate journal, that two bills were introduced into and passed that body with precisely the same title. They were entitled, “An act to provide for the ordinary and contingent expenses of the government until the adjournment of the next regular session of the general assembly.” One of these bills was numbered two hundred and two, and the other two hundred and three. The bill in dispute was two hundred and two, and contained a section appropriating fifty thousand dollars, or so much thereof as might be necessary, to be disbursed in aid of sick and wounded Illinois soldiers; to defray the contingent expenses of the executive department; for the pay of clerks in the governor’s office; of messengers on public service, by order of the governor; of assistants in the adjutant-general’s office; quartermaster-general’s, and commissary-general’s office; telegraphing; postage and other incidental expenses. The same to be expended as provided in an act to provide for extraordinary expenditures in the executive department.
It is alleged that bill number two hundred and three, which was passed by the house, did not contain all of the provisions contained in bill two hundred and two, and that the provisions before referred to, were not in-the first named bill. The journals of the senate show that both of these bills were passed by that body, and were sent to the house for its concurrence. The house journal shows, that on the 14th day of February, 1863, bill numbered two hundred and three, was taken up and passed, but no action appears from the journals, to have been taken upon bill numbered two hundred and two. But the senate journal shows, that on the third day of June, 1863, that body received a message from the house informing them that the house had "concurred in the passage of senate bill two hundred and three, and also that through error the bill two hundred and two was reported back to the senate as having passed the house, and that it did not pass, and asking its return.
Oral evidence was received in the case, only to identify the journals of the two houses, and these two bills, but for no other purpose. From that evidence it appears that these two bills were distinguished from each other by the numbers they severally bore, and which had been placed on them by the clerk of the senate. It also appears from the house journal that it was bill numbered two hundred and three, which passed that body and they failed to show, that bill numbered two hundred and two, the bill in controversy, ever passed the house. ISTo entry in reference to the latter bill is found on the house journals at either the regular or adjourned session. As to that bill, it seems that the house at no time ever took any action whatever, unless it was to request the senate to return it to the house. Thus it is clear from the journals that the bill under consideration was never adopted as a law, notwithstanding it has the signatures of the two speakers and the approval of the governor.
Were it not for the somewhat peculiar provision of our Constitution, which requires that all bills, before they can become laws, 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 a 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 for its enforcement are implied. It is true that these means are negative and not positive in their character. Whilst neither of the other coordinate 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 became a law, there must be record evidence of every material requirement, from its introduction until it becomes a law. And this evidence is found upon the journals of the two houses.
The question has been discussed whether the journals may be referred to, for the purpose of overcoming the presumption of the validity of a printed act with all the forms of a law. Were the question one of first impression, it might be more embarrassing than it now is, having been in numerous cases authoritatively determined, by this and other tribunals of sister states, whose organic laws contain substantially similar provisions to that of ours. In fact, so far as we have been able to find, the decisions, in every case but one, where this question has arisen, hold that the journals may be resorted to for the purpose of invalidating the enactment. We are not, however, prepared to say that a different rule might not have subserved the public interest equally well, leaving the legislature and the executive to guard the public interest in this regard, or to become responsible for its neglect.
The case of The State v. McBride, 4 Mo. 303, is perhaps one of the earliest cases in which the question has arisen whether the journals of the two houses might be resorted to for the purpose of showing a want of compliance with the requirements of the Constitution. That case involved the question, whether an amendment of the State Constitution had been adopted by a two-third vote of the two houses as that instrument required. It was there held that as two-thirds of the members had voted for the amendment, it became a part of their organic law. The fact that the court refer to the number of votes cast, is conclusive to our minds that the journals were consulted and controlled the decision of the court. In that case the question was raised and insisted upon, that the court had no fight to go behind the signatures of the speakers, and the approval of the governor, but the houses were the judges whether they had proceeded constitutionally. But the objection was disallowed when the court made the inquiry, and passed upon the question.
In the casé of Thomas v. Dakin, 22 Wend. 9, this question was before the court. In the decision of that case, the constitutionality of their general banking law was involved. It was there intimated hut not directly decided, that it must appear that the constitutional requirement, that two-thirds of the members of each house must concur in its passage, must be observed. It was, however, held, that the question should have been presented by plea, and the question was not determined in that case. In the case of Warner v. Beers, 23 Wend. 103, the same question arose, and it was held that the banks formed under the general law of the State, on that subject, were not corporations in «the legal acceptation of the term, and that a two-tlnrd vote was not requisite to the validity of the law. Chancellor Walworth, in delivering a separate opinion in the last named case, says that upon a demurrer to the declaration, the court will not look beyond the statute book, to ascértain whether the act was passed by a two-thirds vote, or by a mere majority, if a court has such power in any mode to institute such an inquiry. But he expressly waives a decision of that question.
The Supreme Court of Ohio in the case of The State v. Maffitt, 5 Ohio, 223, held, that the journals of the two houses might be resorted to, for the purpose of determining whether a person acting as a judge had been properly elected by the legislature. Again in the case of The People v. Purdy, 2 Hill, 31, Chief Justice Broesoe, in a dissenting opinion, held that when the question was raised, whether an act had been adopted by a vote of two-tliirds of the members of the legislature, the question may be determined by the journals. This case was taken to the Court of Errors, where the decision of the Supreme Court was reversed. A portion of the members of the court placed their decision upon the same grounds that had been taken by Chief Justice Broesoe.
In the case of Debow v. The People, 1 Denio, 9, the Supreme Court of Hew York held that it was the duty of the court to examine and decide whether any law falling within the two-thirds clause of the Constitution, has received the required number of votes to give it validity. It was also held that if it had not, the supposed law was utterly void. And in that case, it is said, that the' conclusion is sustained, not by mere dicta, but upon the express adjudications of the Court for the Correction of Errors. Again, in the case of Eld v. Gorham, 20 Cow. 9, it is said, “ Although it would indeed he practicable, by an examination of the journals and files of the two branches of the legislature, to ascertain which those revised acts are, it would in most cases be exceedingly inconvenient, and in some very difficult to do so, from a want of access to those sources of information. The question in this case was whether an act embraced in the printed volume of revised laws of the State, had in fact been revised, and it is manifest from the opinion, that the court regarded a resort to the journals as a legitimate mode of determining whether a law had been properly enacted. It is true the court says that such a course would be inconvenient and in some cases difficult, but they say it would be practicable.
In the Supreme Court of Indiana, in the case of McCulloch v. The State, 11 Ind. 524, it was held, that the journals of the two houses, being required by the Constitution to be kept, are conclusive evidence of the facts appearing upon their face. And the case of Green v. Graves, 1 Douglass (Mich.), 351, seems to fully recognize the rule, that the journals may be resorted to, for the purpose of ascertaining whether a law has been constitutionally adopted. In the case of Furgusson v. The Miners' Bank, Smeed (Tenn.), 609, it is held that where a bill has not been read on three several days, in each house, as required by the Constitution, it would fail to become a law.
The case of Southworth v. Palmyra & Jackson R. R., 2 Gibbs (Mich.), 287, recognizes the right of the court to look beyond the enrolled bill, to determine whether two-thirds of the members of each house had voted for the bill, in accordance with the requirements of the fundamental law. It is true, in this case, that the question before the court was whether the Constitution required two-thirds of all the members elect or only of a quorum to pass such a bill. But the fact that the court looked into the journals in determining the question, and decided that the bill had the requisite number of votes, shows that the court exercised the power to go behind the signatures of the speakers and approval of the governor, to determine the validity of the law. In the case of Fowler v. Pierce, 2 Cal. 165, the court held the enrolled bill was prima facie valid, but the courts might go behind the bill, to ascertain whether all the constitutional requirements had been performed, — its prima facie character might be rebutted. Such is the position taken by most if not all of the cases before referred to, and seems to be the settled law of those courts. The enrolled bill or printed volume of laws will be regarded as having received all the essential requirements, to render them valid and binding, until that presumption is rebutted by the journals óf the two houses.
Again, the Supreme Court of Hew Hampshire, in an opinion given to the governor of the State, 35 N. H. 579, hold that the journals of the two houses may be inspected, for the purpose of ascertaining whether what purports to be a law has received the assent of the two houses in the mode prescribed by the Constitution. In that case the bill was signed by the speakers of both houses, and had received the approval of the governor. They held that in such a case the bill is prima fame, but not conclusively, a law, but where it fails to appear by the journals that one of the houses had concurred in an amendment to the bill, that the presumption was destroyed, and the bill would be held inoperative and void as an enactment. That the evidence of its passage must appear from the journals or it would not be sustained.
Opposed to these cases, we only find that of Green v. Wilbur, 33 George (Miss.), 650. It was there held by a majority of a divided court, that the signatures of the speakers of the two houses, and the approval of the bill by the governor, was conclusive. But the dissenting opinion of Chief Justice Smith maintains the opposite ground, and is, to our minds, the most satisfactory, as being in harmony with the rule adopted by other courts.
Having referred to the decisions of other courts, on this question, it may be proper to refer to the cases determined by our own court. The first case in our reports is The People v. Campbell, 3 Gilm. 466. It was there held, that the legislature did not possess the power to repeal a law, by joint resolution, without undergoing the three several readings prescribed by the Constitution. It is true, it does not appear that any question was raised as to the right of the court to resort to the journals of the two houses to test the validity of the law. But the journals were resorted to, and upon them the case was decided.
The next case is that of Spangler v. Jacoby, 14 Ill. 297. In that case it was urged that the law was inoperative and void, because a majority of all the members elect, in each branch of the legislature, did not concur in its passage. And the court sustained the objection, holding, that the ayes and noes appearing upon the journals is the only test of its validity, and that they must appear upon the journals. It was -likewise held that the printed statute book is not conclusive evidence of the correctness of a law, but that it may be corrected by the enrolled bill on file in the office of the secretary of State. It was also held, that it may be shown from the journals that a particular act passed in conformity to the requirements of the Constitution. That when the validity of such an act is denied, the journals may be appealed to for the purpose of determining the question. It was also held, that the signatures of the speaker of the senate, the speaker of the house, and the approval of the governor of the State, to a bill is presumptive evidence that it became a law under the Constitution; but the presumption may be rebutted by the journals of the two houses. And the court on the evidence afforded by the journals, held that the constitutional requirements had not been observed, and that the law was inoperative and void.
The next case is that of Turley v. Logan County, 17 Ill. 151. It was there held, that the journals must show, that the constitutional requirements had been observed. The court also fully recognize the principle announced in the case of Spangler v. Jacoby. The journals having been produced, it appeared, that the same legislature had corrected their journals, at a subsequent session, from the minutes of the clerk, so as to conform to the constitutional requirements; this was held to be sufficient, and the validity of the law was sustained.
The next case is that of Prescott v. The Board of Trustees, Ill. & Mich. Canal, 19 Ill. 324. It was there held, that an act was inoperative, because the journal failed to show that the senate had concurred in an amendment to the bill adopted by the house. The journals were inspected, and the court held, that they overcome the presumption created by the signatures of the speakers of the two houses, and approval of the governor. The case of Spangler v. Jacoby, was again referred to and approved, as announcing the correct rule. The case of The Supervisors v. The People, 25 Ill. 181, limits the rule adopted in Campbell v. The People. It is there held that although the journals failed to show that the bill was read three several times in each house, the Constitution not requiring that fact to be recorded, the law would not for that reason be invalid. But it was there said, in accordance with the rule in the case of Spangler v. Jacoby, that under the Constitution it was requisite to the validity of an act that the ayes and noes should appear upon the journals.
Upon an inspection of the house journal, it appears that the bill in controversy was never put upon its passage. It does not appear to have been read in the house or any vote taken upon either reading or its passage. The journal is wholly silent as to this bill, and it does not appear that the ayes and noes were called and spread upon the journals upon its passage, or that a majority of the members elect voted for its adoption. We have seen that all the cases in which the question has been presented to this court, hold that this fact must appear upon the journals as a requisite to the validity of a law. This being wanting the law was a nullity, and the auditor was not authorized to draw the warrant or the treasurer to countersign and register it. The journals do show, however, that a bill of the same title, but containing different provisions, did pass the house, and owing to the similarity of the titles of the two bills or by some other means, this bill was signed and approved. This appears by the journal of the house and from its message to the senate, in which they say that the bill never passed that body.
To hold this to be a valid law, we would have to reverse all of the former decisions of this court on the question, as well as disregard the current of the decisions of other courts in the different states of the Union. Whatever may have been our inclination, had the question been presented for the first time by this case, the weight of authority and the prior decisions of this court must control. But we have reviewed all the cases in which the question has been presented, so far as we have been able to find them, and thus it is seen that the decisions of this court are in harmony with the adjudged cases of other courts.
For these reasons the writ of mandamus must be refused.
Ma/ndarrms refused.
Breese, J.: I concur in refusing the mandamus.