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to it. It would hardly deserve weight in contradicting the journal itself-much less the certificate of the presiding officer affixed to the law." He subsequently adds : "But I do not desire to be understood as committing myself upon the question, if, on a future investigation, when it shall be directly involved, these views shall be found untenable." Mr. Justice Cowen did not regard the decision of the court for the correction of errors, above cited, conclusive of this question; and in this case neither he nor Mr. Justice Bronson expressed any opinion on this point.

§ 836. This question again came under consideration in the case of The People v. Purdy.(a) The question in this case arose under the act of 14th May, 1840, annulling the power conferred upon aldermen in the city of New York by the city charter of 1830, to officiate as judges in the court of general sessions. Mr. Justice Bronson, in that case, at page 33, says: "But it is said that the act of 1840 did not receive the assent of two-thirds of the members elected to each branch of the legislature, and consequently that it is not a valid law. The fact that it did not have the vote of two-thirds of the members, was conceded on the argument; and we see, from the journals, that only one-half of the senators, and less than half of the members, voted for the bill on the final passage. How a question like this shall be tried, or whether it shall be tried at all, when a bill has gone through all the usual forms of legislation, are questions which were not considered in the case of Thomas v. Dakin.(b) They are now presented to this court for the first time. It has not been denied that the judicial tribunals of the state may, in some way, look beyond the printed statute book, for the purpose of ascertaining

(a) 2 Hill, 31.

(6) 22 Wend. 9.

whether bills coming within the two-third clause of the constitution, have received the requisite number of votes: and although I have felt a good deal of difficulty on that question, I am inclined to the opinion that such an inquiry may be instituted. The question is, no doubt, one of great delicacy; but if the court have the right to entertain it, the duty is imperative, and we are not at liberty to shrink from its performance. We live under a government of laws, reaching as well to the legislative as to the other branches of the government; and if we wish to uphold and perpetute free institutions, we must maintain a vigilant watch against all encroachments of power, whether arising from mistake or design, and from whatever source they proceed. The constitution is explicit in its terms; and in a particular class of cases upon which the legislature may act, it denies to a bare majority of the members the power which in other cases they undeniably possess. To give efficiency to this provision, and secure the people against the excrcise of powers which they have not granted, we must, I think, when called upon to do so, look beyond the printed statute book, and inquire whether bills creating or altering corporations have received the requisite number of votes. Statute laws may be read in evidence, either from the state papers or from the volumes published by the state printer. (a) It is also enacted, that "no bill shall be deemed to have been passed by the assent of two-thirds of the members elected to each house, unless so certified by the presiding officer of each house." To give full effect to this enactment, and provide a convenient mode of ascertaining whether the two-third clause in the constitution has been duly observed, the law should be published with all the usual evidences of their authenticity.

(a) 1 R. S. 181, 184, sec. 8, 12.

The certificate of the presiding officers of the two houses, and the approval of the governor, should be published, as well as the body of the law. But as this has not been the practice, I have examined the original engrossed bill on file in the secretary's office, and find that the act of 1840 is only certified by the presiding officers in the usual form of certifying majority bills. If this be not conclusive, it is at least prima facie evidence; and following the statute, this bill cannot be "deemed to have been passed by the assent of two-thirds of the members elected to each house."

§ 837. In the same case, in the court for the correction of errors, (a) the chancellor and senators Paige and Franklin held, that for the purpose of ascertaining whether an act was passed as a majority bill merely, or by a two-third vote, courts may look beyond the printed statute book to the certificate upon the original bill on file with the secretary of state. That if the bill be not certified by the presiding officer of the two houses respectively, in the mode pointed out by the statute, it must be deemed prima facie, at least to have been passed by a vote less than two-thirds, and senators Paige and Franklin were of the opinion that the journals kept by the two houses of the legislature, might be resorted to in ascertaining whether an act was passed by a vote of two-thirds. The chancellor was also of the opinion that the certificate of the secretary of state endorsed upon the bill, pursuant to the requirement of the statute, was not evidence that it was passed by a vote of two-thirds, at all events it was not conclusive. For it could never have been the intention of the legislature, to give to the secretary of state the exclusive right of deciding whether any of the provisions of a statute, which had been passed

(a) 4 Hill, 384.

by a majority vote only, required a vote of two-thirds. The certificate which the secretary is required to endorse upon the bill, related rather to the time when such bill became a law, than to the fact that it was passed by a constitutional vote of two-thirds; when all or any of its provisions require that it should be passed by such a vote. And the revised statutes having only declared the certificate of the secretary to be conclusive evidence of the facts contained therein, if he does not certify that it was passed by two-thirds of the members elected to each branch of the legislature, his certificate was not evidence that it was so passed; when such an inquiry becomes material in reference to the validity of any of the provisions of the law. The legislature had declared by law that no bill shall be deemed to have passed by a twothird vote, unless it is so certified by the presiding officer of each house, and he was therefore inclined to the opinion that such a certificate, rather than the certificate of the secretary of state specifying the time when the law was passed, was to be considered the only legal evidence that the bill was in fact passed by the assent of two-thirds of all the members elected to each branch of the legislature. In the case of De Bow v. The People,(a) Bronson, Ch. J., again held, that the question whether a particular act was passed by a two-third vote was to be determined, whenever it arises, by the court, who for that purpose are to examine the original law on file in the office of the secretary of state; and in the latter case he said that this question, as to whether the law did receive a two-third vote, was directly and necessarily presented, and that the court could not, if it would, turn aside from considering it.(b) It will therefore be per

(a) 1 Denio, 9.

(b) See also The Commercial Bank of Buffalo v. Sparrow, 2 Denio, 97.

ceived, that this most delicate and important question, so far as the state of New York is concerned, is judicially and definitely settled, and that whatever may be the rule in England on this point, the rule here is finally put at rest, and that too, as we think, in strict accordance with the spirit and genius of our peculiar political institutions, under a written compact defining and limiting legislative powers.

§ 838. I have now presented all the varied topics which I have deemed it important to discuss. It is due to myself in conclusion to say, that in the presentation of this branch of my subject I have considered it important to present many instances in which a particular rule of construction has been applied to particular cases, as illustrative of the rule itself, as well as its practical application by courts, and in such instances to present so many of the facts and circumstances of the case as to enable my readers, without a resort to the cases themselves, to readily perceive the extent to which the rule itself has been carried, and the mode of applying it. In considering the rules of construction under the varied heads of remark, I have also in some instances presented in juxta-position the varied views of judges in reference to a given topic, even at the expense of a repetition of similar views, when considering the same subject under a different head, and also in instances where the same rule was adopted, but a different application made of it; or its application was to be considered under a somewhat varied aspect, by way of illustration. With this apology for the fault of prolixity in this respect, I close this work, and to all human probability, under my present impressions, terminate my labors as a legal author.

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