(dissenting). This is a petition for mandamus to compel the board of supervisors of Menominee county to levy the State tax apportioned to that county by the Auditor General for the year 1891. The petition shows that the Auditor General made the apportionment of the State tax in proportion to the valuation as determined by the last State Board of Equalization, and that on Sept. 30, 1891, he transmitted to the clerk of that county a statement of the amount, in accordance with the provisions of section 22 of Act No. 195, Laws of 1889, and which statement was laid before the board of supervisors. The board of supervisors, at its annual session in October, 1891, passed a - resolution declaring that it would not authorize or direct the levying of this tax, for the reason that the Auditor General had based the apportionment upon the valuation of Menominee county as equalized by the State Board of Equalization for said year, and included therein territory then belonging to said county of Menominee, and which has since been detached and become a part of the county of Dickinson.
The petition shows that Dickinson county was organized by Act No. 89, Laws of 1891, which'took effect on October 2, 1891, that being subsequent to the date of the apportionment made by the Auditor General to Menominee county; that Dickinson county is fully organized, and has a board of supervisors; that, under Act No. 200, Laws of 1891, it is declared the duty of the Auditor General to apportion the State tax, and he has no authority to reapportion it, and that, inasmuch as it was apportioned prior to the organization of Dickinson county, it became a debt against Menominee county; that it is the duty of the board of supervisors of Menominee county to assess and collect the tax, and the *600duty of the board of supervisors of. Dickinson county to settle with Menominee county therefor.
An order to show cause was issued, and the board of supervisors of the county of Menominee filed an answer in this Court, which states that it declined and refused to levy any State tax for the year 1891 for the reason, among others, that while it is informed and believes that what purports to be an act of the Legislature of the State of Michigan, and which is "entitled, “An act to organize the county of Dickinson,” and purports to have been approved May 21, 1891, and which appears among the Public Acts of 1891, and is there designated as Act No. 89, is not a valid enactment,- yet, in obstructing the respondent in the levy of the'State tax for the current year, it has the same present effect as if it were valid. The grounds -for this belief are stated in the respondent’s answer, as follows:
“Said alleged Act No. 89 of the Public Acts of 1891 was not passed by the Senate, and did not at any time receive the vote of the majority of the members of the Senate elect, but only received the votes of 16 members thereof. The bill for said alleged act originated in the House, was there passed, and was transmitted to the Senate. On the 20th day of May, 1891, as appears from the Senate-Journal, said bill came on to be considered in the Senate, and, the question being upon its passage, on a call of the yeas and nays the name of one Charles A. Fridlender, who occupied a seat in the Senate, but was not a member of that body, was called, and his vote was counted and recorded in favor of the passage of said bill. Exclhding the vote of said Fridlender, the Senate Journal exhibits 16 votes in favor of the passage of said bill, and no more.
“On the 7th day of January, 1891, in conformity to the Constitution, the Senate convened in the Senate Chamber at Lansing. Thereupon a list of members of the Senate elect for the years 1891 and 1892, duly certified by the Secretary of State, was read by the secretary of the last Senate. Included in such list was the name of Benjamin C. Morse, as Senator-elect - for the 26th sena*601torial district. It appeared that all of said Senators were then and there present; and each and all of said Senators, including said Benjamin C. Morse, thereupon took and subscribed the constitutional oath of office, and entered upon the discharge of their duties as Senators. On the same day the Senate was duly organized by the election of officers, and that fact was announced to the House. The Senate, as then constituted, continued until the 24th day of February, 1891.
“That on said last-named day, when 17 members of the Senate, namely,' Joseph M. Weiss, George B. Horton, Jan W. Garvelink, Robert R. Wilkinson, W. H. Withing-ton, Marden Sabin, Benj. 0. Morse, Joseph Fleshiem, John H. D. Stevens, A. Oren Wheeler, Alfred Milnes, Frank L. Prindle, Aaron B. Brown, John Bastone, William Toan, Marcus Wilcox, and John R. Benson, were absent from the Senate Chamber, and while only 15 Senators — being less than a quorum of the duly-elected Senators — were present, the president of the Senate, with the advice and consent of 14 of these 15 Senators, and in the absence of a majority of the Senators, knowingly, unlawfully, fraudulently, and in violation of the Constitution of the State and the rules of the Senate, caused the secretary to enter upon what purported to be the journal of the Senate, but which was not such in fact, the pretended adoption of a resolution declaring the seat of said Benjamin 0. Morse vacant, and another resolution, declaring Charles A. Fridlender to be duly elected Senator for said district; that only the aforesaid 15 Senators were present, and only 14 of them voted for such resolution; that the vote was not taken by yeas and nays, although Senator Taylor demanded that the yeas and nays be taken and recorded; and that, if the yeas and nays then had been taken and recorded, it would have appeared that there was not a quorum of the Senate present; that said resolutions were never in fact adopted by the Senate; that the president of the Senate and said 14 Senators fraudulently and corruptly conspired and caused what purported to be the journal of the Senate to be so falsely and fraudulently made and kept as to show that such pretended resolutions had been adopted.
“ On the following day, to wit, the 25th day of February, 1891, the said Charles A. Fridlender intruded himself into the seat of said Benjamin C. Morse, the Senator from the 26th senatorial district; and thereupon *602the following protest and affidavits were offered in open Senate:
“ ‘ State op Michigan,
“ ' County of Ingham,
'
“ ‘ Joseph M. Weiss, William H. Withington, Alfred Milnes, Marden Sabin, Jan W. Garvelink, Marcus Wilcox, John R. Benson, John Bastone, William Toan, Aaron Brown, Frank L. Prindle, Benjamin C. Morse, A. Oren Wheeler, Robert R, Wilkinson, Joseph Fleshiem, John H. D. Stevens, being first by me duly sworn, severally, depose and say that they are members of the-Senate of the State of Michigan for the year 1891; that the official journal of the Senate of Tuesday, February 24, 1891, records that the following resolutions were adopted by the Senate, viz.:
“ ‘ “ Leave being asked and unanimous consent being granted, Mr. Crocker offered the following resolution:
“‘“Whereas, it appears that great irregularities and frauds have been committed in the township of Cummins, Oscoda county, and in the township of Harrisville, Alcona county, in votes that were counted for Benjamin C. Morse, by reason of which he was declared elected, without which .said votes said Morse was not elected; therefore—
“ ‘ “ Resolved, that the entire vote of said two townships of Cummins and Harrisville be declared null and void.
“ ‘ “Resolved, further, that the seat of the said Benjamin C. Morse in this Senate, as Senator from the 26th senatorial district of the State of Michigan, be, and the same is hereby, declared vacant.
“ ‘ “ On motion of Mr. Crocker the resolution was adopted.
“ ‘ “ Leave being asked, and unanimous consent being granted, Mr. Crocker offered the following resolution:
“ ‘ “Whereas, as the entire vote of the people in the township of Cummins, Oscoda county, and in the township of Harrisville, in Alcona county, was illegally cast, by reason of gross frauds and irregularities in said townships, and by reason of which the board of canvassers declared that Benjamin C. Morse was duly elected Senator for the 26th senatorial district of this State, when, as a matter of fact, Charles A. Fridlended should have been declared elected;' therefore—
“‘ “Resolved, that the said Charles A. Fridlender be, and he is-hereby, declared duly elected Senator for the 26th senatorial district of Michigan, and entitled to the seat recently made vacant by the removal of Benjamin C. Morse.”
“ ‘ That the entire number of Senators is 32, of which number IT members are necessary to constitute a quorum for the transaction of any business whatever; that, at the time when said journal records said resolution to have been adopted, the above-named Senators, 16 in number, each for himself, swears, that he was not present in the Senate Chamber, and did not in any way participate in making a quorum of said Senate, whereby the transaction of any business could be in order or legally transacted; that, at the time when said resolution purports to have been adopted by *603said Senate, there was not a quorum of the Senate present, and no business could have been transacted; that no such resolutions, as above set forth, were adopted by the Senate at any time on said 24th day of February, A. D. 1891, when a quorum of the Senate were present; that said resolutions were not adopted by the Senate; and that said journal of said 24th day of February is entirely false and incorrect, in as far as it purports to record that said resolutions were adopted.’ ”
This affidavit was subscribed and sworn to by all of the above-named Senators. Supplemental to this was the affidavit of Senator Taylor, as follows:
“ State of Michigan,
“ County of Ingham,
“Robert L. Taylor, being first by me duly sworn, deposes and says that he is a member of the Senate of the State of Michigan for the year A. D. 1891; that he was in attendance during the session of said body on the 24th day of February, A. D. 1891; that the official journal of said Senate of said 24th day of February, A. D. 1891, shows that the following resolutions were adopted by the Senate, viz.”
The affidavit here sets out the resolutions as they appear in the affidavit of the other Senators before given. Senator Taylor’s affidavit then proceeds as follows:
“That, at the time when said resolutions purport to have been adopted, the following Senators only were present, viz.: This affiant and Messrs. Beers, Boughner, Crocker, Doran, Gilbert, Holcomb, McCormick, Miller, Mugford, Park, Porter, Sharp, Smith, Wisner,— 15 in all; that no other Senators were present, and that a quorum of said body consists of 17 members; that a less number than a quorum cannot transact any business; that no quorum was present when said resolutions purport to have been adopted; that, at the time when said resolutions were pending before the Senate, there was not a quorum of that body present; that this affiant arose in the Senate Chamber, and called the attention of the president to the fact that there was not a quorum present; that any member of the Senate is entitled to demand the yeas and nays on any pending question, as provided by Rule No. 41 of the Senate Rules; that before said resolutions were put to vote, and while they were pending, affiant demanded that the yeas and nays be taken and recorded upon the journal; that the president of the Senate neglected and refused to comply with said request; that, if the yeas and nays had been recorded as demanded by this affiant, the result would have revealed the fact that there was not a quorum of the Senate present.
*604“ This deponent further says that said journal of said 24th day of February is incorrect and false, in that it does not show that this affiant raised the question that there was no quorum of the Senate present, and demanded the yeas and nays, when said resolutions were pending as hereinbefore set forth, but, on the contrary, entirely suppresses said facts.”
This affidavit was subscribed and sworn to by Senator Taylor on February 25, 1891, being the same day the preceding affidavit was made.
The Senators making these affidavits, including Senator Taylor, on the same day made the following protest to the Senate, to wit:
“Senate Chamber,
Lansing, February 25, 1891.
“The undersigned, acting under section 10, art. 4, of the Constitution, hereby solemnly protest against the entire action of the Senate appearing on the journal as having been transacted after the recess in the. session of February 24th inst.
“They protest on the ground that the report presented by Senator Park, and purporting to be the report of the select committee on the contest of James H. Morrow . for the seat of George B. Horton, was not the action or by the authority of the said committee.
“They protest on the ground that the report presented by Senators Crocker and Gilbert on the claim of Charles A. Fridlender for the seat occupied by Hon. Benjamin C. Morse was not by the action or authority of the select committee appointed to investigate the said claim.
“They protest on the ground that this summary determination of the right of two Senator's to their seats in this.body before the facts in the case have been considered by the committees appointed to investigate them is an outrage and wrong upon the Senators concerned, upon their constituents, and upon the Senate.
“They protest against the seating of Charles A. Fridlender in the place of Benjamin C. Morse, on the ground that at the time the resolutions vacating the seat of Benjamin C. Morse, and declaring Charles A. Fridlender entitled to the said seat, were acted upon, there was not a quorum of the Senate present.”
The affidavits heretofore set out were attached to and made a part of this protest, and the protest was signed by all the above-named Senators, including Senator Taylor.
On the coming in of this answer the Auditor General, while not admitting the right of the respondent to raise *605the question of the validity of the act by asserting that Fridlender and Morrow were not properly given seats in the Senate, and that the bill was not passed except by the vote of said Fridlender, presents the following requests for issues:
“First. This relator alleges the truth to be that Act No. 89 of the Public Acts of 1891 was passed by the Senate of the State of Michigan, and did receive the vote of a majority of the Senators-elect, to wit, 17 votes of the legally-qualified Senators of the State of Michigan.
“Second. That all that part of the answer wherein and whereby it is claimed, in substance, that the seat of Benjamin C. Morse, as Senator of the State of Michigan, was declared vacant, and Charles A. Fridlender, Senator for the 26th senatorial district of Michigan, was awarded the seat made vacant by the removal of Benjamin C. Morse, by only 15 Senators, or less than a quorum of the Senate of the State of Michigan, is untrue; and in this behalf this relator says that the Senate Journal of the session of 1891 shows:
“1. January 8 (page 12 of the Senate Journal), that Charles A. Fridlender presented a petition claiming the seat as Senator of the 26th senatorial district, and duly alleging that he was elected, and that Benjamin C. Morse, who had intruded himself in said seat, was not elected.
“2. That on the 12th day of January (page 69, Senate Journal) a resolution was adopted, authorizing the appointment of a committee to investigate and ascertain the truth of the Fridlender petition.
“ 3. On January 13 (page 70 of the Senate Journal) a committee to investigate the said petition was duly appointed, of which Senator Crocker was chairman.
“4. That on January 15 (page 88 of the Senate Journal) the committee was duly instructed by resolution, and given authority to subpoena witnesses, etc.
“5. February 24 (Senate Journal, page 303) the Senate committee appointed to investigate the petition of Charles A. Fridlender, by Martin Crocker and Peter Gilbert, chairman and one of the members thereof, made a report showing that 100 votes were illegally cast on election day in Cummins, Oscoda county, and that 100 votes were illegally cast in Harrisville, in the county of Alcona, *606and recommending that the votes of these two townships be thrown out, and a motion being made to adopt the report, the same was adopted by a yea and nay vote, 14 Senators voting therefore and 7 against; and thereupon a motion was made by Mr. Crocker, as follows.”
The requests for issues then set out the resolutions given in the affidavits as heretofore stated. The requests for issues then state:
“And this relator says that all of the resolutions above set forth were duly adopted, as appears by the Senate Journal, while there were at least 31 Senators-elect present; that such fact appears from the fact that, on the question relative to adopting the report made by Messrs. Crocker and Gilbert, 31 Senators-elect voted thereon by yeas and nays; that none of said Senators had been excused, and it is expressly provided by Senate Eule 11, ‘No member shall absent himself from the Senate without leave first obtained.’
“6. That on February 35 (Senate Journal, 305) the president of the Senate announced that he had, on the morning of this day, administered the oath of office to Senators Fridlender and Morrow; that he presented the following oath, subscribed to by the said Senators.”
Here follows the constitutional oath of office. The requests by the Auditor General for issues then proceed:
“The oath as subscribed was ordered spread upon the journal, and was so spread at large; and this relator says that by reason of the resolution and action of the Senate, which is judge of the election of its own members, said Charles A. Fridlender became and was a duly-constituted Senator of the State of Michigan, and had a legal right to vote for the said bill organizing the county of Dickinson. A copy of that part of the official journal relating to these matters is here produced and exhibited to the Court.
“Third. And this relator, as above stated, prays that issues may be framed concerning the matters above set forth.”
These requests for issues were signed by George W. Stone, Auditor General.
It was ordered by a majority of the Court, when these *607requests for issues were presented, that the case be heard •upon the petition and answer. It was further ordered that, from the facts appearing in the petition and answer, the writ of mandamus be denied, and that written opinions would be filed later.
I was not prepared, at the time these issues were presented, to hold that this Court had no power to inquire into the facts presented by the answer and put in issue by these requests, and, if the facts presented by the .answer were established, to say that this Court was powerless to right the wrong, or that it was bound to uphold legislation procured by such revolutionary measures.
The Senate convened in the Senate Chamber at Lansing, January 7, 1891, in conformity to the Constitution. It was composed of 32 members, and among them was Benjamin C. Morse, the Senator of the 26th senatorial district. He took the constitutional oath of office, and entered upon his duties as a Senator. The Senate was organized by the election ■ of officers, and that fact announced to the House of Representatives. From that •time forward to the 24th of February, 1891, he was in his seat in the Senate Chamber, voted with that body, and was recognized as the Senator-elect from that district. He held the certificate of election from the proper board of district canvassers.
From the answer it appears that a committee was appointed to investigate Mr. Fridlender’s petition, with power to send for witnesses and papers, but no report was agreed upon; when, on the 24th of February, 1891, in the absence of 17 members of the Senate, out of the 32, the chairman of the committee made a report on the petition, signed hy one other member, showing that the committee had found such frauds in these two townships that their entire votes should be thrown out, and that *608by reason of that fact Senator Morse was not elected. The 15 Senators, according to the affidavit of Senator Taylor, listened to this report, and adopted it. They also adopted a resolution declaring Fridlender entitled to the seat, and he was admitted to the seat, having taken the constitutional oath. This was done by less than a. qfiorum of the Senate. Senator Taylor was present, and requested the yeas and nays to be taken on the adoption of these resolutions, but this was denied.
The Constitution provides by section 9, art. 4, that—
“Each house shall choose its own officers, determine the rules of its proceedings, and judge of the qualifications, elections, and returns of its members."
Section 8 of the same article provides that—
“A majority of each house shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and compel the attendance of absent members in such manner and under such penalties as each house may prescribe."
Section 10 of the same article provides that—
“Each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy."
It is also provided by section 19 of the same article that—
“No bill or joint resolution shall become a law without the concurrence of a majority of all the members elected to each house."
The contention of the relator is that under section 9 of article 4, above quoted, the Senate being the body named in the Constitution to judge of the qualifications, elections, and returns of its own members, there is no power vested in the courts, under the Constitution, to review its action. This is undoubtedly true as to the action of the body itself; but the question here presented *609is one of greater moment, — that is, whether less than a quorum of that body, who only have power, by the provisions of section 8 of that article, to adjourn from day to day, and compel the attendance of absent members, may usurp the powers of the body itself, unseat members of the body during their absence and in the absence of the majority, and induct strangers into their places; and the further question, whether, if this appears to have been done, this Court, in determining the constitutionality of this act, can inquire into these proceedings, and if it be found that an intruder voted for the act, and that such act did not have the necessary majority of votes for its passage (under section 19 of the article, requiring a majority vote), without counting the vote of the intruder, can pronounce the law invalid.
No right-thinking person can for a moment justify the proceedings as they are stated by the answer. If the minority of either houses shall at any time override the plain provisions of the Constitution,and unseat members,and induct into their places strangers to that body, and hold them in place, against 'the will of the majority, by sheer force of the organization of the house, by the power thus held, — not in number, but in position, having the presiding officer to do its bidding, the sergeant-at-arms to enforce the behests of the presiding officer, and the secretary to make such records as are thus directed, — can this Court award an issue, and inquire into the facts? If this minority could unseat two Senators, then a smaller minority might unseat all the other Senators, place strangers in their places, and by force of the organization, having the ear of the presiding officer, the strong arm of the sergeant-at-arms and his assistants to do the bidding of the presiding officer, and the aid of the secretary to keep the record, a substantially new house *610would and could be thus organized, and no inquiry into the proceedings could be made. The record would show a quorum present, as in this instance, voting to unseat members; strangers would be given the seats and held in place by the new organization; and what before had been the minority of the house would be in control as the majority of the body.
In an exhaustive research but one parallel case has been found (State v. Smith, 44 Ohio St. 348, 7 N. E. Rep. 447); and this can hardly be said to be. parallel to the present case. It is creditable to the legislative departments of the state governments that no such revolutionary spirit has exhibited itself during the entire period of our national existence, except in these two instances. In the case referred to, arising in Ohio, members of that bench were not entirely unanimous in their conclusions.
It appears in this case, if the answer is true, that 15 Senators — less than a quorum — have usurped the functions of that body. It was a conspiracy to do an unlawful and most outrageous act; a conspiracy to overthrow the will of the majority of that body, and to defy the people of this State. It was well planned and organized, and carried into effect with the most brazen effrontery. Every step taken in it was over a broken Constitution; and to uphold it, the journal of the body itself was made up of falsehoods. Acts less flagrant than this, in other countries, in times past, have led to revolution and the loss of constitutional liberty, which has been regained only by a long series of years of warfare, and at the cost of thousands of lives and millions of. treasure. The majority of the Senators in the present case acted with great circumspection, and placed themselves upon record in such forcible language that those engaged in this great-conspiracy should have been warned, and have undone *611their shameful, illegal, and unconstitutional act. These men. had taken a solemn oath to support the Constitution. They could plainly read its meaning. They knew that it provided that less than a quorum could do no such act as here attempted; and that the making of a spurious and fraudulent journal, no man, having the interests of his State and government at heart, would or could uphold or approve. It is most fortunate that' the term of office of such persons is short, and that the people in their sovereign power may so soon have an opportunity to visit upon them their righteous indignation.
The contention on the part of the relator is that, if the issues are allowed, the proceedings must be sent down for trial. The respondent asserts that no quorum was present when Senator Morse was unseated and Fridlender given the place. The relator denies this, and asserts that there were 21 Senators present at that time, and that the Senate Journal so shows; that it would, therefore, if the question is to be submitted for trial, become a matter of fact for the determination of a jury.
I am satisfied that there is no power vested in the courts under the Constitution to enter upon such an inquiry unless the facts can be determined from the journal of the Senate itself.
The Constitution, by section 10, art. 4, requires each house to keep a journal of its proceedings, and by section 19, art. 4, it is provided that “on the final passage of all bills the vote shall be by yeas and nays, and entered on the journal." In England, and in some of the states in this country, the courts hold that the act can only be tried by itself, — its enrollment in chancery in England; and in the states of this country, by its filing in the office of the secretary of state. In King v. Arundel, reported by Lord Hobart, page 111, the court said: “ When the act is passed the journal is expired." In the *612days of Lord Hobart the journals were not regarded as records. They were remembrances for forms of proceedings to the records; that is, the enrolled bills. It appears that Lord Coke approved this doctrine, and that Lord Hale, in a case where the defendant pleaded that a bill wanted the royal assent, would not permit the question to be raised, but held that the certificate of the bill from the court of chancery, where it had been recorded, was conclusive. College of Physicians and Cooper or Hubert, 3 Keb. 587.
In State v. Young, 32 N. J. Law, 44, it was held that, both upon the grounds of public policy and upon the ancient and well-settled rules of law, the copy of a bill, attested and filed in the office of the secretary of state, is conclusive proof of the enactment and contents of the statute; the court citing the following cases, which support that holding: Railroad Co. v. The Governor, 23 Mo. 353; Fouke v. Fleming, 13 Md. 412; Duncombe v. Prindle, 12 Iowa, 1; People v. Purdy, 2 Hill, 31, 4 Id. 384; Eld v. Gorham, 20 Conn. 16.
In many of the other states and in this State it is well settled that the journals are to be regarded. They are required to be kept, and where they show that a bill has been passed by a majority of the house they cannot be rebutted by parol proof.
In State v. Moffitt, 5 Ohio, 363, it was held that the journal could not' be contradicted by parol proof. The same ruling was made in Koehler v. Hill, 60 Iowa, 545 (14 N. W. Rep. 738).
In Wise v. Bigger, 79 Va. 279, the claim was that the act had not passed the Senate by the requisite majority. The court said:
“To inquire into the veracity of the journal of the senate in which it has recorded its proceedings would be to violate both the letter and the spirit of the constitu*613tion, to invade a co-ordinate and. independent department of the government, and to interfere with the separate and legitimate power and functions of the legislature.”
It was further held that the journal imparted absolute verity.
In People v. Mahaney, 13 Mich. 492, Mr. Justice Cooley, laying down the rule that courts are bound judicially to take notice of what the law is, and have the right, as it is their duty, to take notice, not only cf the printed statute-books, but also of the journals of the two houses, to determine whether all the constitutional requisites to the validity of a statute have been complied with, says:
“The printed statute is not even prima facie valid when other records, of which the Court must equally take notice, show that some constitutional formality is wanting;” citing in support of this proposition: 1 Chit. PI. 215; Coburn v. Dodd, 14 Ind. 348; Supervisors v. Heenan, 2 Minn. 330 (Gil. 281); People v. Purdy, 2 Hill, 33; De Bow v. People 1 Denio, 11; Bank v. Sparrow, 2 Id. 101; People v. Railroad Co., 12 Mich. 397.
In Attorney General v. Rice, 64 Mich. 385, the question came directly before this Court whether the legislative jonrnals kept in pursuance of section 10, art. 4, of the Constitution, and duly certified by the proper officers, could be contradicted by parol testimony. Mr. Justice Morse, speaking in that case, said:
“Are these journals, kept by the clerk of each house, .and read and corrected each day by each body, and duly certified by the proper ofiicers to be correct, to stand as conclusive evidence of their proceedings, or are they liable to be disputed and overthrown by parol testimony, cither of individual officers and members or of strangers, who may be interested in nullifying legislative action? It would seem that there can be but one answer. The legislative record must prevail. Any other ruling would necessarily lead to dangerous and alarming results.”
*614That the Court cannot enter into this inquiry by the introduction of parol testimony to impeach the journal of the Senate is supported by the whole weight of authority in this country as well as in England.
But it is not necessary to enter upon this inquiry, and award issues to try the question of fact whether a quorum was present on the 24th of February, when Senator Morse was unseated, and Mr. Fridlender given a place in that body. It appears from the journal of the Senate that the protest made by the majority of the Senate was entered upon the journal on the morning of the 25th of February; and there is no denial of that fact by the requests for issues here presented. As we have said, the Court may always look into the journals, and ascertain whether a bill has been passed - by the constitutional majority of Senators-elect. Looking into the journal, therefore, and excluding all inquiry outside of it, we find that on February 24, 1891, the Senate, a majority of the members being present, passed the resolutions unseating Senator Morse and seating Mr. Fridlender. Looking into the journal of the Senate on the morning of the 25th of February, we find that the majority of the members-elect attempted to undo the action of that body of the day before. The journal of the day before had not at that time — on the morning of the 25th — been approved by that body. The inquiry is then to be made whether the majority of the members-elect could on the morning of the 25th of February -undo the work of that body of the day before, admitting, what the journal shows, that a majority was present on February 24, at the time the resolutions were passed. There can be no question but-that the same body that passed the resolutions of the 24th of February could have rescinded them on the morning of the 25th and given the seat to Senator Morse, unless it was estopped, under parliamentary usages, by the *615motion to reconsider the vote, and the motion following that, to indefinitely postpone the reconsideration of the vote, which will hereafter he noticed. What, then, was the effect of the affidavits and protest which we find spread upon the journal of the Senate on the morning of the 35th of February? Upon the filing of these affidavits a written protest was made by 17 Senators, and an effort made to expunge the record of the day before. Can it be said that this did not in fact rescind the resolutions of the 24th of February? If it did not rescind that action,' how could such action be rescinded? The majority of the members had the power to do it and in fact did it, except that the president of the Senate and the secretary, together with these conspirators, having the control of the body, though allowing the affidavits and protest to be filed, did not spread upon the journal the fact of rescission. I think it had the effect of a rescission, and that» therefore, Mr. Fridlender was but a stranger in that body;, and that this fact appears from the journals themselves, even admitting all that is claimed by the requests for issues. We need not go beyond the journal to determine these .facts.
It must be conceded that the Senate, under section 9, art. 4, of the Constitution, had the right to judge of the qualifications, elections, and returns of its members; but the journal of the 25th of February, 1891, conclusively shows that the journal of the 24th was and is false and fraudulent; that it was made up by less than a quorum of that body, and the proceedings spread upon' the record by the secretary by the direction of the presiding officer. The journal of the Senate of the 24th of February shows, as to the adoption of the resolutions unseating Senator Morse and seating Mr. Fridlender, as follows:
“On motion of Mr. Crocker, the resolution was *616adopted. Mr. Park moved to adjourn, which motion did not prevail. Mr. Doran moved to reconsider the vote by which the resolution was adopted unseating Benjamin C. Morse from his seat in the Senate. Mr. Park moved to indefinitely postpone the motion to reconsider the said vote, which motion prevailed. Mr. Doran moved to reconsider the vote by which the resolution was adopted seating Charles A. Fridlender as Senator from the 26th district, in the stead of Benjamin C. Morse. Mr. Park moved to indefinitely postpone the motion to reconsider the said vote, which motion prevailed.”
This was the last business done by the minority of the Senate on the afternoon of the 24th of February. It will be noticed here that the attempt was made, by these motions to reconsider and to indefinitely postpone, to place the matter of unseating Senator Morse and seating Mr. Fridlender beyond any action which the majority might take on the next day; but, if this was done by a minority, it would have no such effect.
It appears from the journal of the 24th itself that, on the adoption of the resolution as to the unseating of Senator Morse and seating Mr. Fridlender, the yeas and nays were not ordered, and the vote was not so taken; so that there is no direct proof on the journals of the 24th that a quorum was present at the time such resolutions were adopted. But it is said that this Court must presume that such quorum was present at that time from the fact that a quorum was present at the time of the adoption of the resolution in the Morrow matter, and at the time the report of the two Senators — Crocker and C-ilbert — was presented in the Morse matter. This would undoubtedly be true under Senate Rule No. 11, that “no member shall absent himself from the Senate without leave first obtained,” were it not for the facts appearing on the journal of the 25th. As we have seen, when the resolutions were presented to unseat Senator Morse and seat Fridlender, the yeas and nays were not called, though *617in the adoption of the report of Senators Crocker and C-ilbert in the Morse matter they were called, and the report was adopted, recommending that the votes in the two townships be thrown out; so that all that appears upon the journal of the 24th as to a quorum being present at the time of the adoption of the resolutions unseating Senator Morse and seating Fridlender is the presumption of a quorum, by reason of a quorum being present at the time the report was presented and adopted. This presumption would stand as absolute proof of the fact if it were not for the facts appearing upon the next day’s journal. We are asked to take this presumption as conclusive evidence of the fact. We are also asked to say that the proceedings of the 25th are not evidence of the facts which rebut that presumption, and that the affidavits and protest spread upon the journal of the 25th are not evidence which may be considered by the Court in determining whether a quorum was present on the 24th. Why not? It is well settled that we may take notice of the contents of the journals. Why take notice of the journal of the 24th and exclude that of the 25th? Although it is not so stated therein, yet, presumptively, the journal of the 24th shows a quorum present at the adoption of the resolutions. But when we read that of the 25th, is not the presumption rebutted, and to the mind of every one so rebutted that it carries conviction that no quorum was present on the 24th at that time? Who, in all that body of Senators assembled there on the 25th, when the affidavits of those 17 Senators were read, arose and pronounced those affidavits untrue? Who, throughout this entire Commonwealth, questioned the truth of the matters contained in those affidavits? Who questions them now? There is but one answer. No one questioned them then, and no one questions them now, except the relator, who does so in a qualified way, by the declaration that *618no ' Senator could absent himself without leave first obtained. Shall this Court, therefore, exclude what appears upon the journal of the 25th as evidence of the facts there appearing?
What is evidence? Mr. Greenleaf says it is “ that which is legally submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it." Must this Court, upon the subtleties' of the lawyers, determine that which so plainly appears to all laymen as true is not true, or that by reason of some technicality of the law this Court cannot take as evidence that which convinces everybody else? 16 Senators, under the solemnity of their oaths, swear that they were not present on the 24th at the time those resolutions were adopted; and Senator Taylor swears that those 16 members were. not present, and that, pending the adoption of the resolutions, he asked to have the yeas and nays taken; that he called the attention of the president of the Senate to the fact that no quorum was present; and he gives the names of the Senators then present, and says that none others were present. This affidavit explains why the journal does not show the call of the yeas and nays,’ though upon the adoption of the report previous to that the yeas and nays were called and recorded. Is not the journal legally submitted to us? Are not these affidavits a part of that day’s journal? The affidavits and the protest are a part of the journal, and are evidence of the facts therein stated, under the provisions of section 10, art. 4, of the Constitution, and sufficient, not only to overcome the presumption of the presence of a quorum at the time of the adoption of these resolutions, but to convince the mind of that fact beyond all reasonable doubt. The Court should therefore consider this evidence, and determine that no quorum was present on the 24th of February at the time *619Senator Morse's seat was declared vacant, and Fridlender seated in Ms place. Any other rule than this would be dangerous in the extreme, as it would place absolute power in the hands of a minority of the body, who could always make the journal show a quorum present, and the majority could never undo its action. Under the rule contended for they could come into the body on the following morning, show to the presiding officer that they were not present on the prevous day, have their affidavits recorded and protest entered, but could not correct the record; and their affidavits and protest could not be used as evidence anywhere to prove the fraudulent transaction. Suppose the journal showed a bill to have passed on its third reading by the vote of every Senator-elect, and on the next morning 30 of the Senators present their affidavits, stating that they were not present, and did not vote for the bill, and protest against the action of the minority. The presiding officer says he will permit the affidavits and protest to appear upon the journal, but will not expunge the record, or allow the journal to be corrected. Would this Court uphold such legislation? A bare statement of the proposition is a sufficient answer. This Court would at once say that the bill had not become a law, for the reason that it had not received the majority vote of all the Senators-elect, as provided by section 19, art. 4, of the Constitution. But what is the proof of this fact? The affidavits and protest of the 30 Senators found on the Senate Journal on the next morning after the bill is claimed to have passed. Suppose the Court said that it would not receive this as proof of the fact. Who legislates? What body passes the laws? How can the president of the Senate and the secretary and the two Senators present, who have done these acts, be reached? The majority of the Senate attempts to undo it, and cannot, and the Court is power*620less to inquire into it. The affidavits and protest, though entered upon the journal, cannot be taken as proof of the facts, and the Court is compelled to say that the'bill received the constitutional majority vote necessary to its passage. Such a ruling as this would place power in the hands of the president and secretary of the Senate to adopt or nullify every act attempted by the majority of that body. No court could or would approve such a doctrine. But why receive this as proof of the facts contained in the affidavits in one case, and not in the other? Why hold it as proof of the fact that a bill was not constitutionally passed, and reject it as proving the fact that a quorum was not present when any other act is claimed to have been done which a minority could not do? The Senate itself may do these acts, and the Court cannot reach it, or undo its action, however wrong it may appear, as each House is exclusively the judge of the qualifications, elections, and returns of its own members. But I am not willing to hold that a minority has any such power as here claimed. Had the facts appeared in State v. Smith, supra, as here appear, — that is, had the absent Senators appeared on the next morning, and protested against the action of the minority, — a very different question would have been presented' to that court. But that did not occur there, and that court held, as I should hold if these facts did not appear upon the next morning’s journal, that the journal of the 24th was conclusive of the fact, and that parol testimony could not be introduced to contradict it. From these facts it appears that Senator Morse was never removed from his office as Senator, and Mr. Fridlender was never declared elected thereto. Mr. Fridlender, therefore, was never a Senator.
In entering upon the inquiry as to whether the bill organizing Dickinson county received the constitutional *621Vote necessary to its passage we may take notice of the fact that Mr. Fridlender was not a Senator.
In State v. Francis, 26 Kan. 724, the question came before the supreme court of Kansas whether a bill making appropriations for the’state fish commissioner for the years 1880 and 1881 had passed the house of representatives by the necessary majority vote. In that state, as in this, the constitution provides that on the passage of every bill it shall require the majority vote of all the members-elect of each house. Section 3 of article 3 of the constitution of that state in 1873 had been amended to read as follows:
“The number of representatives and senators shall be regulated by law, but shall never exceed 135 representatives and 40 senators. From and' after the adoption of the amendment, the house of representatives, shall admit one member from each county in which at least 350 legal votes were cast at the next preceding general election; and each organized county in which less than 300 legal votes were cast at the next preceding general election shall be attached to and constitute a part of the representative district of the county lying next adjacent to it on the east.”
Acting under this amendment, the legislature apportioned the representatives among the counties, giving to each county at least one representative where 350 votes were cast, making the total representation in the house 139. The whole 139 representatives took their seats in the house, and acted during the session, and passed the bill in question. The court held that the amendment to the constitution only provided for the election of 135 members to the house. That court was composed of Hon. Albert H. Horton, Hon. Daniel M. Valentine, and Hon. David J. Brewer, the last of whom is now one of the Associate Justices of the Supreme Court of the United States. They were all able men, and among the best lawyers of the country. The question presented was *622curious and novel. They discussed the power of the court to examine the journal of the house to determine who were legally elected to the body, and they determined from the journals that the members elected from Rooks, Rush, Harper, and Kingman counties were not legally elected, and were not members of the house. It was said:
“ Whenever the house of representatives consists of more than 125 members, some of such members must be there illegally. Such was the case in 1879 [the time when the bill in question is claimed to have been passed]. The house of representatives at that time consisted of 129 members. Four of these members, to wit, the four from Rooks, Rush, Harper, and Kingman counties, who were not provided for by law, and who were the lasts members admitted to their seats, were not entitled to their seats. And the act in controversy was passed only by the assistance of their votes. Except for their votes, or at least three of their votes, the act would not have received a constitutional majority of the votes of the members of the house; and, not counting their votes, the act did not receive a constitutional majority. Now, we do not think that their votes should be counted; and therefore we think the act in controversy must be held as not having passed the house of representatives> and as void.”
If these votes should not have been counted under the circumstances stated in that case, why should the vote of Fridlender be counted? He was never a Senator any more than those persons were members of the Kansas house of representatives. It is true that in that case the constitution recognized only 125 members; but in the present case Mr. Fridlender was never elected or appointed to the office by any power or authority' recognized by the Constitution of this State.
But it is said that the respondent here could not question the action of the minority in the present case, for the reasons—
*6231. That it is a collateral attack upon the bill before us, organizing Dickinson county.
2. That the Senate acquiesced in the action of the minority by sitting with these usurpers during the remainder of the session.
3. That these usurpers are Senators de facto.
I cannot agree with any one of these propositions. Quo warranto could not have been brought to inquire into or determine the right of these usurpers to hold the seats into which they were inducted by these unlawful means. The present is the only form in which an attack under their proceedings could be made. Under section 19, art. 4, of the Constitution, this Court may inquire whether a bill has received the requisite number of votes to pass it. At present I am not speaking of how the inquiry can be made, — what proofs may be resorted to by the Court to ascertain the fact; but, if the Court finds that a bill has not received the constitutional majority vote necessary to its passage, the act will be held void. Attorney General v. Joy, 55 Mich. 99. It was said by Mr. Justice Cooley in the above case that—
“A bill considered in the Legislature, but not constitutionally passed, can never become a law by its being signed by the Governor, and published with the statutes. That is too plain a proposition to need argument or illustration.”
In Attorney General v. Rice, 64 Mich. 385, the attack upon the bill was that it had not been introduced into the House during the first 50 days of the session. The Court held that, if the Constitution had not been complied with in the passage of the act, that fact could be shown, hut limited the proof of the fact to the journal •of the House. In these cases it was not thought that the attack was a collateral one.
It must be remembered that the attack upon the bill in the present case is that it did not receive the consti*624tutional majority vote in the Senate. The reason of this assertion is that Fridlender was a mere intruder into that body. If it be conceded that he was a mere intruder, that he was there as a stranger, why should it be held that the bill was constitutionally passed, as it required his vote to make the necessary majority?
It seems to me to need but little argument to show the fallacy of the second point raised, — that is, that the Senate acquiesced in the action of the minority in seating this intruder by continuing to sit. The facts, as made to appear from the journal itself, show no such acquiescence. The majority attempted to expunge the record of the 24th of February. Failing in this, they attended to their duties as Senators, voted upon measures coming before that body, but' in no way recognized the intruder as there by right. Acquiescence means—
" A quiet assent, a silent submission, with apparent content, distinguished from avowed consent on the one hand, and on the other from opposition or open discontent.”
The protest filed showed the dissent of the majority; but the power of the house kept him in place. Must the majority each day have objected to the presence of this intruder? Must they, upon the final passage of every bill, have made the objection, and, upon failure to do this, be said to have acquiesced? I think not.
It is said that Fridlender was a Senator de facto. . Judge Cooley defines "an officer de facto” to be—
"One who, by some color of. right, is in possession of an office, and for the time being performs its duties with public acquiescence, though having no right in fact.” Cooley, Const. Lim. (6th ed.) p. 750.
Lord Ellenborough’s definition.is:
" One who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” King v. Bedford Level, 6 East, 356.
*625It cannot be said that Fridlender performed tbe duties of that place with public acquiescence, or that he had the reputation of being the officer he assumed to be. From the journal it clearly appears that he was placed in the Senate by fraud, and by overriding the plainest provisions of the Constitution, by a minority of that body; and he had no reputation of being the officer he assumed to be. He was no more than an intruder, who is defined to be—
"One who attempts to perform the duties of an office without the authority of law, and without the support of public acquiescence." Town of Plymouth v. Painter, 17 Conn. 585; Peck v. Holcombe, 3 Port. (Ala.) 329; Petersilea v. Stone, 119 Mass. 465; Hamlin v. Kassafer, 15 Or. 456; Hooper v. Goodwin, 48 Me. 80; Tucker v. Aiken, 7 N. H. 113; McCraw v. Williams, 33 Grat. 510.
The distinction between an officer de jure, one who is defacto, and a mere usurper is well known and clearly defined. An officer de jure has the legal title to, and is clothed with all the power and authority of, the office. He has a title against the world to exercise the functions of the office and receive the fees and emoluments appertaining to it. He is responsible to the government and injured parties when he abuses his trust or transcends his authority; and his acts within the scope of that authority cannot be questioned by the citizen or any department of the government. An officer de facto is one who comes in by the power of an election or appointment, but, in consequence of some informality or want, of qualification, or by reason of the expiration of his term of service (or, it may be said, also by entering upon the duties of his office before the term of service fixed by law begins), cannot maintain his position when called upon by the government to show by what title he holds-his office. He is one who exercises the duties of an. *626office under claim and color of title, being distinguished on the one hand from a mere usurper, and on the other from an officer de jure. A mere usurper is ono who intrudes himself into an office which is vacant, or ousts the incumbent, without any color of title whatever; and his acts are void in every respect. McCraw v. Williams, 33 Grat. 510; Hooper v. Goodwin, 48 Me. 80; Hamlin v. Kassafer, 15 Or. 460.
By what claim and color of title did Fridlender act? It is true that there was an office to be filled; but it was filled by an officer de jure. There could not be an officer de jure, — one who had the legal title to and was clothed with all the power and authority of the office, and actually exercising its functions, — and at the same time an officer de facto, claiming to exercise the functions of the same office. Benjamin 0. Morse was holding the certificate of the board of canvassers, was recognized as the officer de jure, sworn in, exercised all the functions of the office, and, as we have seen, was never ousted by any power authorized to oust him. He was, therefore, in that particular office of which it is claimed Fridlender was exercising the functions de facto. If Senator Morse had been actually ousted, there might be strong reason for claiming that Fridlender was a de facto officer; but there was no office for him to fill, as it was already, filled. In the very nature of the case, there can be no officer de facto where no officer de jure is provided for by law; or, as is said in one case: “There can be no officer, either de facto or de jure, if there is no office to fill." Carleton v. People, 10 Mich. 250; Norton v. Shelby Co., 118 U. S. 425 (6 Sup. Ct. Rep. 1121); Yorty v. Paine, 62 Wis. 154; Cole v. Black River Falls, 57 Id. 110; In re Hinkle, 31 Kan. 712 (3 Pac. Rep. 531); Burt v. Railroad Co., 31 Minn. 472 (18 N. W. Rep. 285); Leach v. People, 122 Ill. *627420 (12 N. E. Rep. 726); People v. White, 24 Wend. 539.
In Carleton v. People, supra, it was said by Mr. Justice Campbell, Mr. Justice Christiancy concurring, that,—“ Where the law itself negatives the idea that there can be a legal incumbent, any one assuming to act assumes what every one is bound to know is not a legal office, and his acts cannot be effectual for any purpose.’’
In Lawrence v. Hanley, 84 Mich. 399, it was said that—
“The claim that Collins was ever legally or peaceably dispossessed of the office is untenable. He never abandoned his office.”
In that case the sheriff attempted to oust Collins as a member of the board of the Wayne county auditors. The other members claimed that he was ousted, and that Mr. Leteker was in; and this Court held.that Mr. Collins was never out, and therefore Mr. Leteker never in the office. In the present case Mr. Morse did not abandon the office, but protested against the attempt on the part of the minority to oust him.
In Mason v. Mayor, etc., 35 N. J. Law, 190, the office of city treasurer could, under the city charter, be filled only by a majority meeting of the board of aldermen. The defendant, who had been admitted to the office by an election at which less than a legal number of aider-men was present, claimed, against the relator’s application for mandamus, that, as he was in office de facto, and under color of . an election, quo warfhnto, and not mandamus, was the proper remedy. The court held, however, that the election by the aldermen in violation of their own organic law was a mere nullity, and, all the facts being before the court, a peremptory mandamus went in the first instance.
In Eaton v. Walker, 76 Mich. 579, it was held by this Court that a corporation de facto cannot exist in the absence of a law authorizing its organization; and in *628such a case the carrying on of the business in the corporate name is no evidence of user which can be considered in aid of corporate existence.
It is just as evident that two persons cannot at the same time be in actual occupation and exercise of an office for which one incumbent only is provided by law. Here Morse was in possession of the office as a Senator de jure. He was not removed in fact, and there was no place for an officer de facto. As well might any stranger have stepped into that body and assumed to have the right to vote upon the passage of bills before the Senate.
In State v. Francis, 26 Kan. 724, the constitution of Kansas fixed the number of representatives at 125. Four more were elected to that body, and acted with the body during its session. Yet the court held the act invalid, as it required three of those four votes to pass the bill. It was not thought that those four extra members were officers de facto because they assumed to act. They were treated as intruders by the court, and their votes excluded in determining the question raised.
I have no desire, and it is not my purpose, to hold that this Court has any power to interfere with the legislative branch of the State government when acting within its proper sphere, and within constitutional bounds. Under our system of government, the three branches— the executive, the legislative, and the judicial — are coordinate, one acting as a check upon the other. The executive may interpose his veto upon any act, and it can become a law only by a two-thirds vote of the memb.ers-elect to each house. Even when this is done, the act may be submitted to the judicial department, to determine whether the act has been constitutionally passed. The Court of last resort has always been regarded as the last refuge of a broken Constitution. When both branches of the Legislature and the executive, having *629undoubted power to act, and acting in good faith, overstep the Constitution in the attempt to enact a law, this Court is clothed with abundant authority under the Constitution to overturn it, and declare it a nullity. Why is not this Court, then, clothed with power, when a minority of one of the branches of the Legislature oversteps the plainest provisions of the Constitution, so to ■declare, and to nullify its acts? It-seems to me that no ■other conclusion can be reached which satisfies the mind than that Mr. Fridlender was a mere stranger in the Senate, and that this Court should not count his vote in determining the constitutionality of the act in question. Without his vote the act did not receive the majority vote of the Senators-elect, and failed of passage.
For these reasons the county of Dickinson was not •organized, and Menominee county stands intact, with all the territory originally belonging to it, for all purposes, and the board of supervisors should spread the tax apportioned to it.
I think the writ of mandamus should have been granted.
Grant, J., concurred with Long, J.