has given the power to legislate, and their decision that the facts exist is conclusive upon the courts, in the absence of an explicit provision in the constitution giving the judiciary the right to review such action. We therefore hold that, in passing upon the constitutionality of a statute, the court must confine itself to a consideration of those matters which appear upon the face of the law, and those facts of which it can take judicial notice. If the law, when thus considered, does not appear to be unconstitutional, the court will not go behind it; and, by a resort to evidence, undertake to ascertain whether the legislature, in its enactment, observed the restrictions which the constitution imposed upon it as a duty to do, and to the performance of which its members were bound by their oath of office." 64

§ 80. Miscellaneous cases as to procedure in the enactment of laws.- Where an act was invalid by reason of informality in its passage, it was held that a later act of the same session, referring to it as a law and requiring the secretary of state to have five thousand copies thereof printed and distributed among the officers of the state whose duty it was to carry it into execution, amounted to a ratification and attestation of the act so as to constitute it a valid law.65 A senate bill was amended in the house, resulting in a disagreement and a conference committee, which recommended that the house recede from its amendments. The house did so, the question being put as follows: "Shall the house recede from the amendments and adopt the report of the conference committee?" This motion being carried, it was held sufficient without repassing the bill.66 The constitution of Missouri provides that "no bill shall be so

64 Stevenson v. Colgan, 91 Cal. 649, 27 Pac. 1089, 25 Am. St. Rep. 230, 14 L. R. A. 459. Also Rankin v. Colgan, 92 Cal. 605, 28 Pac. 673; Bourn v. Hart, 93 Cal. 321, 28 Pac. 951, 27 Am. St. Rep. 203, 15 L. R. A. 431; Green v. Fresno County, 95 Cal. 329, 30 Pac. 544; Patty v. Col.

gan, 97 Cal. 251, 31 Pac. 1133; Conlin v. Supervisors, 99 Cal. 17, 33 Pac. 753, 37 Am. St. Rep. 17, 21 L. R. A. 474.

65 Wrought Iron Range Co. v. Carver, 118 N. C. 328, 24 S. E. 352. 66 Robertson v. People, 20 Colo. 279, 38 Pac. 326.

amended in its passage through either house as to change its original purpose." "67 This was held to refer to the general purpose of the bill and not to the details by which the purpose is manifested and effectuated.68 In the absence of constitutional provisions to the contrary, a majority constitutes a quorum and a majority of a quorum may pass a bill.69 When the constitution requires a two-thirds vote to pass certain acts, one passed by a less vote is held to be void.70 In New York the certificate of the presiding officers that an act was passed by the requisite vote is held to be conclusive, but if the certificate is silent on the question it may be aided by the journals." Where an act had been in operation for ten years and had been acted upon by the courts in a number of cases, the court refused to go back of the enrolled act to see whether it was properly passed. Where the constitution required that certain acts should be approved by a two-thirds vote of the electors of the state before going into effect, it was held that the court would take judicial notice of the result of the election.73

67 Art. 4, sec. 25.

73 State v. Stearns, 72 Minn. 200,

68 State v. Mason, 155 Mo. 486, 55 75 N. W. 210. The court says: "The S. W. 636.

69 United States v. Ballin, 144 U. S. 1, 12 S. C. Rep. 507, 36 L. Ed. 321. 70 Allen v. Board of State Auditors, 122 Mich. 324, 81 N. W. 113, 80 Am. St. Rep. 573, 47 L. R. A. 117; Palmer v. Zumbrota, 72 Minn. 266, 75 N. W. 380.

71 Rumsey v. New York, etc. R. R. Co., 130 N. Y. 88, 28 N. E. 763; Matter of New York & Long Isl and Bridge Co., 148 N. Y. 540, 42 N. E. 1088.

validity of this law depends upon whether it received a majority of all the votes cast at the election, not on the subsequent act or omis sion of the state canvassing board, or of any other officers. For the purpose of determining this fact the court will take judicial notice of the election records, returns and canvass thereof by the state board in the office of the secretary of state, and, if necessary, of the election returns and canvass in the

72 Mitchell v. Campbell, 19 Ore. offices of the several county audit. · 193, 24 Pac. 455

ors of the state."

CHAPTER III.

VALIDITY OF STATUTES IN GENERAL AND DELEGATION OF THE LEGISLATIVE POWER.

§ 81. The constitution a limitation — Legislative authority plenary. It is universally held that state constitutions are not a grant but a limitation of the legislative power; that the legislature has plenary power of legislation and may pass any law not forbidden by the constitution of the state or of the United States.1 "Every subject not withdrawn from its authority may be acted upon by that body." In creating a legislative department and conferring upon it legislative power, the people must be understood to have

conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the constitution of the United States.3. Speaking of the legislative power the supreme court of Utah says: "It is wholly within the discretion of the legislature to determine whether, concerning any subject, such conditions or such facts and circumstances exist as to warrant it to act. It is the sole judge as to whether an exigency or such cause exists as requires the enactment of a law, and, in the absence of any constitutional restriction, if it makes a law there is no authority in the government which can declare it void. Independently of any repugnance between a legislative act and any constitutional limitation or restriction, a court has no power to arrest its execution, however unwise or unjust in the opinion of the court it may be, or whatever motives may have led to its enactment." Congress is a body with enumerated powers, and can only pass such laws as are within the grant of the federal constitution."

§ 82. Presumption in favor of validity.- Every presumption is in favor of the validity of an act of the legislature, and all doubts are resolved in support of the act." "In

3 In re House Roll No. 284, 31 Neb. Lands, 18 Colo. 359, 32 Pac. 986; 505, 48 N. W. 275. United States v. Seymour, 10 App.

4 Kimball v. Grantsville City, 19 Cas. (D. C.) 294; Holton v. State, 28 Utah, 368, 383, 57 Pac. 1.

5 Brown v. Epps, 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676; Weister v. Hade, 52 Pa. St. 474, 477; People v. Flagg, 46 N. Y. 401.

6 State v. Rogers 107 Ala. 444, 19 So. 909; Ala. Great Southern Ry. Co. v. Reed, 124 Ala. 253, 27 So. 19, 82 Am. St. Rep. 166; In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755; Hale v. McGettigan, 114 Cal. 112, 120, 45 Pac. 1049; In re State

Fla. 303, 9 So. 716; County Com'rs v. Jacksonville, 36 Fla. 196, 18 So. 339; State v. Hocker, 36 Fla. 358, 18 So. 767; State v. Burns, 38 Fla. 367, 21 So. 290; People v. Nelson, 133 Ill. 565, 27 N. E. 217; Harmon v. Chicago, 140 Ill. 374, 396, 29 N. E. 732; People v. Gaulter, 149 Ill. 39, 36 N. E. 576; Parker v. State, 133 Ind. 178, 32 N. E. 836, 18 L. R. A. 567; State v. Roby, 142 Ind. 168, 41 N. E. 145, 51 Am. St. Rep. 174, 33 L. R. A. 213; State v. Gerhardt, 145 Ind. 439, 44

determining the constitutionality of an act of the legislature, courts always presume in the first place that the act is constitutional. They also presume that the legislature acted with integrity, and with an honest purpose to keep within the restrictions and limitations laid down by the constitution. The legislature is a co-ordinate department of the government, invested with high and responsible duties, and it must be presumed that it has considered and discussed the constitutionality of all measures passed by it.”1 The unconstitutionality must be clear or the act will be sus tained. Acquiescence in the validity of a statute for many years will have weight, if there is room for doubt. stitutional questions will not be considered if there are other

N. E. 469; Maule Coal Co. v. Parthenheimer, 155 Ind. 100, 55 N. E.751; Smith v. Indianapolis St. Ry. Co., 158 Ind. 425, 63 N. E. 849; In re Pinckney, 47 Kan. 89, 27 Pac. 179; Purnell v. Mann, 105 Ky. 87, 48 S. W. 407; State v. Capdevielle, 104 La. 561, 29 So. 215; State v. Tibbets, 52 Neb. 228, 71 N. W. 990, 66 Am. St. Rep. 492; State v. Stewart, 52 Neb. 243, 71 N. W. 998; State v. Cornell, 59 Neb. 417, 81 N. W. 431; State v. Standard Oil Co., 61 Neb. 28, 84 N. W. 413, 87 Am. St. Rep. 449; State v. Westerfield, 24 Nev. 29, 49 Pac. 554; State v. Moore, 104 N. C. 714, 10 S. E. 143, 17 Am. St. Rep. 696; Sweet v. Syracuse, 129 N. Y. 316, 29 N. E. 289; Fort v. Cummins, 90 Hun, 481, 36 N. Y. S. 36; Silberman v. Hay, 59 Ohio St. 582, 53 N. E. 258; Deane v. Willamette Bridge Co., 22 Ore. 167, 29 Pac. 440, 15 L. R. A. 614; In re Sugar Notch Bor., 192 Pa. St. 349, 43 Atl. 985: State v. Dist. of Narragansett, 16 R. I. 424, 16 Atl. 901; State v. Morgan, 2 S. D. 32, 48 N. W. 314; Cole Mfg. Co.

Con

v. Falls, 90 Tenn. 466, 16 S. W. 1045; Condon v. Maloney, 108 Tenn. 82, 65 S. W. 871; State v. Sopher, 25 Utah, 318, 71 Pac. 482; Trehy v. Marye, 100 Va. 40, 40 S. E. 126; Young v. Commonwealth, 101 Va. 853; Charleston & Southside Bridge Co. v. Kanawha Co. Ct., 41 W. Va. 658, 24 S. E. 1002; South Morgantown v. Morgantown, 49 W. Va. 729, 40 S. E. 15; State v. Board of Control, 85 Minn. 165, 88 N. W. 533; Buttfield v. Shanahan, 192 U. S. 470.

7 Beach v. Van Detton, 139 Cal 462, 73 Pac. 187.

8 Sabin v. Curtis, 3 Idaho, 662, 32 Pac. 1130; Kansas City v. Scarritt, 127 Mo. 642, 29 S. W. 845, 30 S. W. 111; Sutton v. Phillips, 116 N. C. 502, 21 S. E. 968; Cook v. Port of Portland, 20 Ore. 580, 27 Pac. 263, 13 L. R. A. 533; Reeves v. Anderson, 13 Wash. 17, 42 Pac. 625; Reid v. Colorado, 187 U. S. 137, 23 S. C. Rep. 92.

9 Cameron v. Chicago, etc. Ry. Co., 63 Minn. 384, 65 N. W. 652.