MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE CLIFFORD, MR. JUSTICE SWAYNE, and MR. JUSTICE STRONG, dissenting.
I am unable to agree to the judgment which has been rendered in this case. There is no doubt but that the construction which the courts of Illinois have uniformly given the Constitution of the State is binding upon us as a rule of decision. The difference between me and the majority of my brethren is as to the construction that has been given, not as to its effect when ascertained. After a careful consideration of all the cases to which our attention has been directed, I am forced to the conclusion that the question has been made by the courts of Illinois one of fact and not of law. The majority of this court think it has been made one of law. Such a construction might and probably would be more logical; but our duty is to ascertain what has been decided, not what should have been.
The case of Spangler v. Jacoby, 14 Ill. 297, is the first of a long series of cases in which this question has been considered; and, so far as I have been able to discover, little has been done since, except to reaffirm and apply what was there decided.
Looking, then, to that case, we find that prima facie an act enrolled, signed by the speakers of the two houses, approved by the governor, deposited in the office of the Secretary of State, and published under his superintendence among the laws certified by him, is a valid law. The language of the court is: 'The act in question was signed by the speakers of the two houses, and it received the assent of the executive. Prima facie, therefore, it became a law.' Afterward, in Illinois Central Railroad Co. v. Wren, 43 id. 79, it is said, 'The laws certified by the Secretary of State, and published by the authority of the State, must be received as having passed the legislature in the manner required by the Constitution, unless the contrary clearly appears.' And, again, no longer ago than last year, in Larrison v. Peoria, Atlanta, & Decatur Railroad Co., 77 id. 18, 'If we find a law signed by the speakers of the two houses, and approved by the governor, we must presume that it has been passed in conformity to all the requirements of the Constitution, and is valid until the presumption is overcome by legitimate proof.'
This law was enrolled; signed by the speakers of the two houses; approved by the governor; deposited in the office of the Secretary of State; published by him with the requisite certificate among the laws passed at the session of the legislature in 1857; acquiesced in by the people of the State as a valid law for more than thirteen years after its publication; accepted and acted upon by the inhabitants of South Ottawa in October, 1866, when they voted under it for a subscription to the stock of the railroad company, and authorized the issue of the bonds of the township in payment; recognized as a valid and existing law by the legislature of the State, March 27, 1869, and April 20, 1869, when laws were passed referring to it as in force, and amending it; and finally acted upon by the officers of the township, when, in obedience to the vote of the inhabitants, they subscribed to the stock of the railroad company, and issued the bonds authorized by the act in payment.
In this condition of things the courts were bound to take judicial notice of it as a law in force. This was expressly decided in Illinois Central Railroad Co. v. Wren, supra, where it was said, 'Although we take judicial notice of all acts of the legislature signed by the governor and found in the office of the Secretary of State, and although for some purposes we may take judicial notice of the legislative journals, yet it is not our province, at the suggestion or request of counsel, to undertake to explore these journals for the purpose of ascertaining the manner in which a law duly certified went through the legislature and into the hands of the governor. If counsel say the journal shows a law to have been passed without calling the yeas and nays, let them make the requisite proof of that fact by means of the legislative journals, and introduce the proof into the record.' And again, during the same year, 1867, in Grob v. Cushman, 45 id. 124, where the question was as to the jurisdiction of the La Salle County Court, in a case which was brought before the Supreme Court for examination upon a writ of error, this language is used: -