DISSENTING OPINION Appellants have filed a petition for rehearing herein for many pertinent reasons some of which of a procedural nature I have answered in a dissenting opinion heretofore filed. In that opinion I did not discuss the case on its merits because no issue was presented to the trial court authorizing it to pass upon the merits of the case, and no general appearance was entered by appellees. However, my brother judges, entered the gateway of error opened by the trial court, and attempted to pass upon the merits of the case, and by overruling the petition for rehearing have widened the open gateway and enhanced the opportunity for error. For this reason I feel it my duty to enter the forbidden arena and discuss the case on its merits on the petition for rehearing.
There has been and there is nothing before the court but plaintiff's complaint. All proper averments therein must be accepted as true, since the decision is made solely upon the sufficiency of its averments to state a cause of action. Among other averments therein I quote grammatical paragraphs 6 and 7 as follows:
"6. Plaintiff further says that the said General Assembly and its duly elected and presiding officers thereof failed to adjourn its session at the day and hour as above required by the above referred to provisions of the Constitution of the State of Indiana, but that the said General Assembly with the full knowledge of each and all of the defendants herein, did purposely, fraudulently, flagrantly and designedly continue the sessions of both Senate and House of the said General Assembly until five-thirteen and five-sixteen P.M. respectively, Central Standard time on Wednesday March 9, 1949, for a period of more than forty-one hours after the time as above set and fixed by the Constitution of the State of Indiana for the regular and legal adjournment thereof which prolonged *Page 65 sessions were in violation of said provisions of said Constitution. That in an attempt to avoid said provisions and without constitutional right so to do, and without authority of law, the said General Assembly and its officers stopped the clocks and the timepieces in their places of assembly at eleven twenty-two P.M. on said March 7, 1949, in a silly, foolish and illegal attempt to avoid the provisions of said Constitution. That said clocks and time-pieces were continued stopped at eleven twenty-two P.M. as of the date of March 7, 1949, until March 9, 1949, as aforesaid.
"7. Plaintiff further says that subsequent to the hour of midnight on Monday March 7, the said General Assembly in violation of each and all of the hereinbefore referred to constitutional provisions, remained in continuous session until the hour and date aforesaid and falsely, fraudulently, knowingly, willfully and in utter disregard of said Constitutional provisions, pretended to function as a legal General Assembly of the State of Indiana, after the said date of March 7, 1949. That the presiding officers of each of said Houses accepted and entertained resolutions, motions and bills and that the members of said Houses of said General Assembly voted on each and all of said actions and that a false and pretended record was made of each and all of said actions and that the said presiding officers of each of said Houses of said General Assembly falsely, fraudulently and willfully attested and certified to the genuineness and correctness of the said actions of each of said houses, then and there well knowing that the said actions of said Houses were not taken within the limitation of time so fixed by the provisions of the Constitution of the State of Indiana. That in pursuance of said illegal acts as aforesaid the presiding officers of each of said Houses of the General Assembly permitted the entry in the journal of each of said Houses of a record of each of the actions of said resolutions, motions and bills as made in each of said Houses subsequent to midnight, March 7, 1949. That said presiding officers have certified each of said actions to the Secretary of State in the manner as provided by law, then and there well knowing that said action is illegal *Page 66 and a fraud upon the people of the State of Indiana. And further that the said General Assembly by its officers and employees falsely and fraudulently made an official record in its journal showing that the Assembly adjourned sine die at eleven fifty-nine P.M. March 7, 1949, then and there well knowing that said statement was false and untrue.
"That among the said bills so passed illegally and fraudulently and in violation of the above Constitutional provisions were the following: House Bills numbered 379, 380 and 381 being budget bills of various officers and functions of the State of Indiana involving an expenditure of the funds of the State of Indiana in the sum of approximately $ ____; House Bill 25 being designated World War Number Two Bonus Bill involving a large expenditure and also fifteen or twenty other bills involving expenditures and activities of various units and functions of government the exact nature and provisions thereof being unknown to plaintiff. That each and all of said above referred to bills as so falsely certified as having been passed by the said General Assembly are illegal and a fraud upon the taxpayers and citizens of the State of Indiana and in direct violation of the provisions of the Constitution of the State of Indiana."
The Constitution of Indiana with reference to sessions of the General Assembly affecting this action, is as follows:
"The sessions of the General Assembly shall be held biennially at the capital of the State, commencing on the Thursday next after the first Monday of January, in the year one thousand eight hundred and fifty-three, and on the same day of every second year thereafter, unless a different day or place shall have been appointed by law. But if, in the opinion of the Governor, the public welfare shall require it, he may, at any time by proclamation, call a special session."
Indiana Constitution, Art. 4, § 9. *Page 67
"The members of the General Assembly shall receive for their services, a compensation to be fixed by law; but no increase of compensation shall take effect during the session at which such increase may be made. No session of the General Assembly, except the first under this Constitution, shall extend beyond the term of sixty-one days, nor any special session beyond the term of forty days."
Indiana Constitution, Art. 4, § 29.
In his superb answer to Edmund Burke's "Reflections on the French Revolution," Thomas Paine in 1791, defined and explained a constitution of a republic thus:
"A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government. It is the body of elements, to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the durations of parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and, in fine, everything that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound. A constitution, therefore, is to a government, what the laws made afterward by that government are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made; and the government is in like manner governed by the constitution." (My italics).
"Rights of Man" 1791, pages 48 and 49. *Page 68
In the one hundred fifty-eight years that have elapsed since this definition and explanation was made, nothing with greater clarity or simplicity has issued from any source on this subject. For similar definitions see 16 C.J.S., Constitutional Law, § 1, p. 20, § 3, p. 21; 11 Am. Jur., Constitutional Law, § 2, p. 602. Many similar definitions and explanations have been given by this court. From some of these I quote as follows:
". . . On this continent we came to the time when the people, by revolution, took to themselves sovereignty, and in exercising supreme political power chartered governments by written constitutions. These organic instruments declared and guaranteed the rights and liberties of the individual, which had come to the people through centuries of struggle against absolutism in government. The majority was to rule, but under restraints and limitations which preserved to the minority its rights. `By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law.' Cooley, Const. Lim (7th ed.) 56. The government so instituted was representative of the creator of it — the people. The agencies and agents for administering it were the people's agents. . . ."
Ellingham v. Dye (1912), 178 Ind. 336, 342, 99 N.E. 1.
"In our system of government, a written constitution is the highest expression of law. None other emanates directly from the sovereign people themselves. It is the deliberate and affirmative utterance of the sovereign majority. It seems unnatural to say that the sovereign majority, the authors of the designedly permanent, the fundamental, the organic law, intended that any of its safeguards should be abrogated by a failure to demand the abrogation; . . . On the contrary, one would expect a provision that the charter of our *Page 69 liberties should stand unaltered until the sovereign majority, by affirmative action, expressed their desire for, and effected, a change. . . ."
In Re Denny (1900), 156 Ind. 104, 108, 59 N.E. 359.
Practically applying the definitions cited, the Supreme Court of the United States has said:
"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."
Ex Parte Milligan (1866), 4 Wall. 2, 18 L. Ed. 281, 295.
The Alabama Supreme Court has correctly said:
"Every officer in the government, from the executive to the humblest magistrate, is charged, to the extent of his sphere, with the preservation of constitutional rights."
Sadler v. Langham (1859), 34 Ala. 311, 329, quoted with approval in Banks v. State (1921), 207 Ala. 179, 93 So. 293, 24 A.L.R. 1359, 1363.
Quoting again from our court:
". . . the discretion of Courts is more restricted in applying the rules of construction to a plan of government contained in a written constitution, than in the construction of statutes. And the reason is conclusive. Statutes are often hastily and unskillfully drawn, and thus need construction to make them sensible. But constitutions import the utmost discrimination in the use of language. `They are the permanent will of the people, intended for the guidance of posterity.' Thus, Marshall, C.J., in relation to the Constitution of the United States: `The framers of the constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said.' Gibbons v. Ogden, 9 Wheat. 188. *Page 70
"So the dissenting opinion of Bronson, J., in The People v. Purdy, 2 Hill 31, subsequently declared in the Court of Errors to be the law, and cited with marked approbation in Newell v. The People. `Written constitutions will soon become of little value, if their injunctions may be lightly overlooked; and the experiment of setting a boundary to power will prove a failure.'
". . . In construing the language of the constitution, Courts have nothing to do with the argument from inconvenience. Their sole duty is to declare, ita lex scripta est — thus saith the constitution. People v. Morrell, 21 Wend. 584."
Greencastle Twp. et al. v. Black (1855), 5 Ind. 557, 570. Quoted with approval by Fansler, J. In Re Todd (1934), 208 Ind. 168, 207, 193 N.E. 865.
It must necessarily follow that the Constitution of Indiana within its sphere is a commanding law for governors, General Assemblies, Courts and the people and covers with its protecting shield all classes of people, at all times, and under all circumstances.
Therefore, we may with truth say that the Constitution of Indiana is a command of the people of the state, providing for their government. The state government is of necessity a creature of the people created by their written constitution. In this case the creature is attempting to overrule, defy and control its creator. I cannot understand how this can ever be possible. This court by Hovey, J. has properly said:
"It has long since been beautifully declared by high authority, that `a corrupt tree can not bring forth good fruit.' An unconstitutional provision can not be the basis of lawful proceedings." Greencastle Township et al. v. Black (1854), 5 Ind. 557, 564, supra.
By the written constitution the people of the state have commanded the creation of the three departments *Page 71 of government; they have definitely commanded that each department be vested with certain rights and that each be charged with the performance of certain duties; but they have likewise definitely commanded each department to obey certain limitations and prohibitions. It is with an alleged violation of the latter command of the people as carefully recorded in the state constitution that we are concerned in this case. That limitation and prohibition is contained in the last sentence of Section 29 Art. 4 of the State Constitution, thus:
"No session of the General Assembly, except the first under this Constitution, shall extend beyond the term of sixty-one days, nor any special session beyond the term of forty days." (My italics).
This is a self-executing prohibition on the power of the General Assembly to continue in session or to act. So long as it acts within the powers granted, its acts are valid. When it acts beyond those powers, and especially when it acts in contravention and open defiance of a positive prohibition of the constitution, its acts are revolutionary and necessarily void. This rule is so elementary it should not require the citation of authority to sustain it. The paucity of authorities is because during the one hundred thirty-three years of our State's existence, members of the General Assembly have never before attempted to enact laws after the expiration of the time allotted by the Constitution for such activity. So far as we can learn the members of the General Assembly or comparable legislative body of no state in the nation have ever attempted to exercise such unlawful power, with the single exception of the members of the Legislature of the State of Florida. When an Act passed by the members of the Legislature of that state after the elapse of the time allotted by the state constitution for such activity and which was falsely authenticated *Page 72 and placed in the records as having been properly enacted on the last day of the session, came before the Supreme Court of Florida, that court approved an action attacking the laws so attempted to be enacted, and adjudged that proper action should be taken to correct the legislative records involved to make them speak the truth. State ex rel. Landis, Atty. Gen. v. Thompson (1935), 121 Fla. 561, 564, 565, 164 So. 192. It thus appears that the only direct authority on the point in question is agreeable with my position.
Commenting on the State ex rel. Landis v. Thompson, supra, decision, the Supreme Court of Florida later said:
"The rationale of that decision was that if the Legislature has no constitutional power to further legislate, or to further act as such with regard to any legislative proposition after its constitutional term of sixty days has run out, that then, by the same token, no mere record it may make of its non-constitutional sitting as a Legislature after it becomes functus officio can rise to any greater evidentiary dignity in the consideration of the courts than the unconstitutional setting itself could rise. Accordingly it was held that since the courts are bound under the law to take judicial notice of legislative records, but notice only of constitutionally made records of the Legislature, as importing absolute verity in their contents, they are necessarily invested with inherent power to use their appropriate judicial processes to expunge from the range of their judicial observation in an appropriate case any purported legislative journal entries that were not made in contemplation of law as a record of what the Legislature did during a constitutionally authorized sitting as a legislative assembly."
State ex rel. Cunningham et al. v. Davis, Jr. et al. (1936), 123 Fla. 41, 57, 166 So. 289.
By its repeated decisions the Florida Supreme Court has held that the prohibitive orders of the people expressed *Page 73 in the Constitution by which they created their government must be obeyed by the Legislature; that any pretended action in contravention and defiance of such prohibitive orders is null and void; and that the Supreme Court has the power by appropriate processes to expunge "from the range of their judicial observation" any purported laws that were not enacted during a "constitutionally authorized sitting of" the Legislature. The Florida decisions are the only decisions directly applicable to the instant case.
I agree with the majority opinion "that the court takes judicial notice of public law; it is presumed to know what it is, and it is its duty to know it." But in the case before us, the averments of the complaint must be taken as true. So considering the issue, the laws complained of could not become the public law of the state, for they were attempted to be enacted by the members, after the General Assembly had become functus officio, in open and utter contravention and defiance of the express prohibitions contained in the last sentence of Section 29 Art. 4 of the Indiana Constitution, supra. If we follow the rule of taking judicial notice of public law as quoted in the majority opinion and noted above, we must in the instant case follow the further rule that we must accept as true the well pleaded facts contained in the complaint, particularly grammatical paragraphs 6 and 7 thereof. So, we must know that the laws attacked, are wholly spurious and should be judicially declared void. For after the expiration of the time the people of the state by the constitution have allotted for the regular session, the members of the Assembly have no more authority to enact laws than any other group of citizens of the state. Should the General Assembly within the time allotted by the constitution fail to pass a motion to adjourn sine die, the constitution steps in *Page 74 and effectively performs that duty for it. The constitution is the commanding voice of the people of the state.
I think it is the law as stated in the majority opinion "that a proper authentication of an enrolled act is conclusive, as a matter of law that the act was duly passed in conformity to the constitution." But there is no such presumption of conclusiveness unless the authentication is proper. The complaint in this case directly attacks the improper authentication of the questioned laws and procedure. I think we as a court have failed to perform our duty unless we pass upon this particular point of attack, and pass upon it in the light of the constitutional prohibitions aforenoted. The people have no other defense to the evils flowing from the usurpation of power by the members of the General Assembly, but by the impartial enforcement of the constitution.
The majority opinion takes the position that we are bound by the false and fraudulent authentication of the questioned Acts. I think this position is not only erroneous but is exceedingly ominous, a violent assault upon the constitution, an open approval of fraud upon the people, a special favor to government at the expense of freedom that may lead to quite unpredictable results. It is a stealthy encroachment upon, and a gradual depreciation of the people's rights under the constitution.Banks v. State (1921), 207 Ala. 179, 93 So. 293, 24 A.L.R. 1359, 1362, supra. As the case is before us it clearly appears that the Acts questioned were agreed upon by the members after the constitutional close of the regular session of the 86th General Assembly. The false authentication, by the members of the constitutionally adjourned Assembly, gives them no validity whatever. In this case the validity of an Act regularly passed in either a general or special session *Page 75 but irregularly authenticated is not before us, and the authorities cited in the majority opinion on that proposition are not applicable in this case. The matter before us, questions a whole series of spurious Acts agreed upon, and a course of spurious procedure had by the members of the General Assembly after the constitutional close of the regular session 1949, and the effort to make these Acts and this procedure valid laws by the false and fraudulent method of predating their authentication. The General Assembly is not charged with committing a fraud. The fraud charged was committed by its members after the session was constitutionally ended.
Apparently conceding the truth of the unusual proceedings charged in the complaint, and also probably as a partial excuse for the equally unusual position of expedience taken by the majority, the opinion asserts: "If the members of the General Assembly violate their constitutional duties on adjournment, they can be defeated the next time such offices come up for election, but the remedy is not with the courts." This gem of thought is quite gratuitous and the suggested remedy is no remedy at all. The unlawful action has been taken and injury and damage are flowing therefrom. The defeat of the erring members at ensuing elections would in no manner eliminate the foisted laws. The acknowledged evil is so great as to threaten seriously the continued existence of a people's government. The majority opinion gives the stamp of approval to this course of conduct by the members of the General Assembly after the permanent adjournment of the session. It gives a license for the adoption of this course of procedure by future members of the General Assembly and may be cited as judicial authority therefor. If the members of the General Assembly violated the constitution by stopping the clocks and continuing to *Page 76 operate for two days after its constitutional close by following the "stopped clocks" time, this court has done precisely the same thing and committed the same error by the majority opinion. This usurpation of power in defiance of the express constitutional prohibition noted can bind no one legally, but is a serious threat to constitutional government.
The faithful performance of official duties commanded by the constitution is in no sense an assertion of superior purity by the courts. The Constitution of the state charges the courts with many very definite duties, some of which are:
"All courts shall be open; and every man, for injury done to him in his person, property or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial, speedily and without delay."
Indiana Constitution, Art. 1, § 12.
It is a duty of this court, and was a duty of the trial court, to be open to the plaintiff's relator, not to brush him off without a hearing, but to give him and the people he represents, being all the citizens of the state, their remedy "by due course of law." They were and are entitled to justice "completely and without denial." I refuse to believe as the majority opinion indicates, that the rights of a citizen or of all the citizens like those questioned here may be denied or abused without a remedy. If such rights can be so denied, then our constitution is meaningless — a thing in name only, having an ideal, but not a real existence.
Simply stated the question presented in this case — considered on its merits — is whether the members of the General Assembly, after the constitutional close of a regular session, may by the simple process of *Page 77 stopping the clocks, remain in session and lawfully function for a period of two days thereafter, and whether the laws agreed upon and other action taken during that period by such members is made valid by having it falsely and fraudulently authenticated by dating it as having been done two days earlier? Among other excuses the majority opinion seems to hold that because the fraud was committed by the General Assembly this correlative department of state government may not interfere by ordering the correction of the fraud or the elimination of the laws it produced. While I do not agree with this statement of the law, I shall not discuss it because that question is not before us in this case, for we do not have a General Assembly except when the members thereof are in either general or special session agreeable with the State Constitution, Sections 9 and 29, Art. 4, supra. They were not in session, either general or special, after March 7, 1949. All the fraudulent Acts and procedure complained of were agreed upon by the constitutionally adjourned members on March 8 and 9, 1949, when they were totally without legislative power. Their fraud consisted in predating the authentication of these Acts to make them appear as having been enacted prior to the Constitutional close of the session. The majority opinion apologetically approves this conduct and attempts to validate these spurious acts.
It is basically erroneous to say that the courts are without power to remedy violations of constitutional limitations and prohibitions by officials and members of the executive, or legislative departments of the state government. When such violations are brought before us directly as is done in this case it is our duty to act; not to rely upon mere inertia to excuse the performance of positive duty. I approve and adopt as my own, a statement of the Alabama Court of Appeals with respect *Page 78 to the court's duty when faced with the admitted facts in this case, as follows:
"The power to forgive, condone, or heal the violation of plain, unambiguous mandates, prohibitions or limitations of the Constitution is denied to the courts and judges of this state, although such violation may result in the greatest good, or may promote a universal benefaction."
Banks v. State (1921), 207 Ala. 179, 93 So. 293, 24 A.L.R. 1359, 1364, supra. See also Bradley and Taylor v. State (1949), 227 Ind. 131, 84 N.E.2d 580, and cases cited; Hoy v. State (1947), 225 Ind. 428, 75 N.E.2d 915.
However, the majority opinion now becomes the law of the state. Of course, if the members of the General Assembly may legally enact laws in this manner two days after the constitutional close of the session, they may continue to do so until the beginning of the next regular session nearly twenty-two months later, and the state may be burdened with a perpetual session of the General Assembly without any lawful change in the State Constitution providing therefor. I think the majority opinion may be cited as authority for this course of procedure. What then becomes of the state constitution? Answering again, we must say it ceases to exist in fact and becomes only an ideal. It is destroyed by its own creatures — the members of an adjourned General Assembly. I cannot follow this revolutionary idea. The petition for rehearing should be sustained and the judgment should be reversed.
NOTE. — Dissenting opinion on petition for rehearing reported in 89 N.E.2d 547. *Page 79