invited to direct the secretary to produce before this court the journal which was delivered to him by the clerk of the house of

out the minutes so signed by Wheeler and the chief clerk as the true journal of the house of representatives, and is recording the same as such journal, and threatens to representatives, in order that the plaintiff, certify them to congress as the journal of a member of the legislature, may be allowed the house of representatives, although he to make certain corrections therein, and knows that the said proceedings were not that, after such corrections are made, the signed by the plaintiff. While it is true that secretary receive the corrected journal as a general demurrer admits the truth of the journal of the legislature, delivered to facts as stated in the pleadings, yet it is him by the clerk thereof. The production equally true that facts not well pleaded, of the journal would be a mere idle proceedand mere conclusions of law, are not admit-ing, unless for the purpose of allowing the ted by a demurrer. There is no pretense court to pass upon the question of fact as that the averments in this paragraph are to whether this book is or is not the jourmere conclusions of law, or that the facts nal of the legislature. The journal itself is are not well stated. The contention is that a public record, and open for public inspecthe facts stated, if established, would be tion, and any citizen of the territory is entiimmaterial and irrelevant, and would con- tled to inspect the same; so that its producstitute no valid ground upon which this tion can only be asked for in order to allow court could act. In plain language, the certain corrections to be made. Hence, if facts, if admitted true, would not consti- this court comes to the conclusion that it tute a cause of action. Bliss, Code Pl. § 418. cannot allow such corrections to be made, Moreover, "a public statute, of which we then the production of the journal merely are bound, ex officio, to take notice, as well for inspectiom is wholly unnecessary. as to the time it went into effect, as to its provisions, this allegation is not admitted, or to be taken to be true by the demurrer. The existence or the time of the taking effect of a public act cannot be put in issue, or admitted or denied by the pleadings, but must be determined by the judges themselves.' Attorney General v. Foote, 11 Wis. 16.

It seems to be well settled that the courts will take judicial notice of the journal of a legislative body to determine whether an act of the legislature is constitutionally passed, and for the purpose of ascertaining what was done by the legislature. A journal, according to the petition, has been filed with the secretary of the territory, and is therefore a public record, and such a record as this court is bound to takejudicial notice of. There is, then, no need of stating what appears upon the journals of the legislature or what does not appear. Such matters are judicially noticed without averment. No issue of fact can be taken upon what a court is required, as a court, to know. These averments in the pleading, even if true, contain no issuable fact, and in such a case a demurrer is the proper remedy. The petition concedes that a journal has been filed by the clerk, upon the adjournment of the legislature, with the secretary of the territory, but alleges that the journal was not properly made up by him. Section 124 of the Revised Statutes of Idaho provides that "the clerks, at the close of each session of the legislature, must mark, label, and arrange all bills and papers belonging to the archives of their respective houses, and deliver them, together with all the books of both houses, to the secretary of the territory, who must certify to the reception of the same."

We have said that the petition concedes that a journal has been delivered to the secretary of the territory, and that the secretary of the territory treats such journal as the journal of the legislature. By section 190 of the Revised Statutes the secretary of the territory is charged with the custody of such journals. Section 1844 of the organic act provides that the secretary shall record and preserve all the laws and proceedings of the legislative assembly. We are now

There is no dispute that the law places no obligation upon Curtis, as secretary, other than that he must receive the journal from the clerks of the legislature and record the same. From the language of section 124 of the Revised Statutes it is clearly the duty of the clerk to make up such records as he deems proper to be delivered to the secretary, and deliver the same. This he has done, and that is the only duty imposed upon him by statute. The law presumes he has done this correctly, and, if not, he is amenable to the Criminal Code of this territory. The question whether the papers so delivered by the clerk to the secretary are correct or not is one which this court cannot entertain. The papers so delivered either are or are not the journal of the legislature. If they are, then this proceeding necessarily fails. If they are not, then it is not the province of this court, nor within the power of this court, to question them, or to make a journal for the legislature. That power is vested in the legislature alone, and is not a power conferred upon the courts.

It is contended with great zeal by the learned counsel for the relator that the journal so delivered is not the journal of the legislature; hence the relator has a right to correct it, so that in his judgment it may become the journal of the legislature, and, as so corrected, that the same be filed with the secretary. This position is wholly untenable. Certainly this court would not correct so important a document as the journal of a legislature, or what purports to be the journal of a legislature, upon the unsupported statement and recollection of one person only, without hearing evidence which might be offered by the defendant. That would necessarily involve the trial of an issue of fact,—namely, is the journal so filed correct or incorrect,―the trial of which issue might lead to the most absurd consequences which we do not deem necessary to state. If the plaintiff desires the production of this public record as a mere matter of curiosity, then, of course, the court would refuse to grant the writ. His only object in demanding its production, therefore, can be but for one purpose only, and that is, that the court may correct it according to certain

evidence which may be introduced. The the first case, so far as we are able to ascerprinciple of law is settled beyond contro-tain, in which the court has been invited by versy that a court will not go behind the mandamus to inquire into the acts of a legjournal of a legislature to ascertain what islative body by verbal testimony, and to was done by that body. The journal itself permit its record to be corrected, or, if there is conclusive, and, if the journal is incorrect be no record, to make one; and we can safely or improperly made up, it is for the legisla- say that this case is sanctioned by no precture itself to correct it, and not for the edent and sustained by no authority. "The court. The journal, as filed, purports to be supposed case of less than a majority of this the journal of the legislature. It is signed court causing a judgment to be entered of by George P. Wheeler, speaker pro tem. of record is not apropos, for, if it were done, the house, and would, therefore, seem to be the only remedy would be in this court, for correct on its face. The presumption al- the reason there is no other tribunal or deways is that when an act of the legislature partment of the government that could afis signed and enrolled that it has gone ford one; and, by parity of reasoning, the through all the necessary formalities. A only correction that can be made in a legisfew of the states hold that the enrolled lative journal is by the body that caused it statute is conclusive evidence of its due pas- to be made. The suggestion that fraud or sage and validity. A great majority of the bad_motives in those who caused it to be states, however, hold that this makes out a made might defeat the remedy, would apprima facie case only, and that such case ply to the one case as well as to the other; may be overthrown by the journals, and but confidence must be reposed somewhere, that the judges, for the purpose of satisfy- and why not in a legislative body as to the ing themselves, may take judicial notice of keeping of its journals, as well as in this the journal, and, if that appear to be regu- court as to the keeping of its records? Belar, that is final and conclusive upon the sides, the people is the final tribunal before courts. Cooley, Const. Lim. (5th Ed.) 163, whom, as a rule, such delinquencies must note 2. Sherman v. Story, 30 Cal. 253, 276; be settled, (Cooley, Const. Lim. 168,) and, in Territory v. Clayton, 18 Pac. Rep. 628, 629; the case of legislators, the return to the peoState v. Smith, 7 N. E. Rep. 449; Koehler v. ple being at comparatively short intervals Hill, 14 N. W. Rep. 738. of time, it is difficult to see how such abuses, if they exist, can be of very long standing, and in such cases it is 'better to bear the ills we have than flee to others we know not of."" State v. Smith, 7 N. E. Rep. 449.

Some question has been raised by counsel for the plaintiff that this body was not the legislature. As the petition itself alleges that the plaintiff was the speaker of the house, that the defendant Reed was chief clerk of the house, and that these journals, with certain exceptions, are the journals of the house, and that, as such journals, they have been delivered by the clerk to the secretary of the territory, and received by him and recorded as such, we cannot consider that point. For the reasons that we have stated the demurrer must be sustained, and the application for a writ denied, with costs.

We have been unable to find a single case which maintains the contrary of this doctrine. Counsel, with great zeal, have searched for such authority, but have been unable to cite us to a single one. We have endeavored to find some authority for the position taken by counsel for the plaintiff, but have been unable to find any. The authorities cited by counsel in which superior courts have compelled inferior courts to correct their records are not at all in point, and are entirely different in principle. The superior courts have authority over inferior courts, and it is their duty to compel them to keep proper records. On the contrary, courts have no authority over the deliberations of a legislative body, and therefore cannot compel them to keep any record, or interfere with any record that they have sept. The case of Territory v. Clayton, supra, is in point here, and seems to have been well decided both upon authority and principle. In that case the court refused to BERRY, J., (dissenting.) In this case I go as far as we are disposed to go. There am constrained to dissent from the opinion the court refused to look beyond the record of my associates, sustaining the demurrer contained in the office of the secretary of in this proceeding, and I deem it necessary the territory, and refused to go to the jour- and proper that the grounds of such disnals of the legislature for information, and sent be stated. The object of the proceedexpressly held that it would not receive ing is to secure the issuance of a writ of verbal testimony to support or contradict mandamus against certain public officers. the record in the office of the secretary of I shall at first confine my attenton to this the territory. case, and afterwards refer to the similar

LOGAN, J.,

concurs.

It is unnecessary for us to go into the rea-case of Clough v. Curtis, post, 8. It is a sons which have induced the various courts familiar principle in law and practice that to unanimously proclaim the doctrine the allegations of a pleading demurred to which we may have set forth. It would be a mere waste of time, because most of the authorities which we have cited contain the reasons of the courts for their action.

It is contended that there is some difference between a direct attack upon the action of a legislature and a collateral attack. It is sufficient to say that in every case which has been presented to our attention the attack upon the acts of the legislature has been collateral. We concede that this is

shall, for the purposes of that proceeding, be taken as true. The allegations of this complaint are, therefore, to be taken as admitted. I copy the body of the complaint in this case, together with the demurrer, and make them a part of this dissenting opinion. The following is the complaint: "The above-named plaintiff, H. Z. Burkhart, shows that he was the duly-elected speaker, and is now the actual and acting speaker, of the house of representatives of

threatens to certify them to congress as the journal of said house of representatives; that he knew that said proceedings of the last day were not signed by the speaker; that plaintiff, by his attorney Lyttleton Price, has filed, to-wit, on the 9th day of February, 1889, and before the same were recorded with said secretary, Edward J. Curtis, a demand in writing that he do not record said proceedings, and a protest against the same, on the ground that they were not the correct record of the proceedthe plaintiff did, on the 8th day of February, 1889, demand of the defendant Chas. H. Reed that he present said minutes of proceedings to the plaintiff for signature; that he failed and refused, and still fails and refuses, to so produce the same; that the rules and practice of said house of representatives require that the said defendant Reed present all the minutes of proceedings thereof to the plaintiff, as such speaker, for his signature. Wherefore, plaintiff prays that said Edward J. Curtis may produce in court the original minutes, record, or proceedings delivered by said Reed to said Curtis, and that said defendant Chas. H. Reed be required to prepare said journal according to the facts as hereinbefore set forth, and state that said minutes were read and approved; that, after the hour of 12 o'clock, midnight, of February 7, 1889, the speaker declared said house adjourned sine die; that the house did not object to said adjournment, but acquiesced therein, and all of the other proceedings hereinbeforestated; and that such journal be handed to the speaker to sign, and thereafter, when so amended and completed, to be delivered to said secretary of the territory as the minutes of the proceedings of said last day, or that said defendant show cause forthwith why said defendants should not do so." This complaint was verified.

Idaho; that defendant Chas. H. Reed is chief clerk of the house of representatives, and Edward J. Curtis is the secretary of the territory of Idaho, and for cause of action for mandamus alleges that the said Chas. H. Reed has in his possession, as such chief clerk, the minutes of proceedings of said house of representatives for the last day of the fifteenth session; that the same have not been signed by plaintiff, H. Z. Burkhart, the speaker, and the defendant Reed refuses to present the same to said speaker for his signature; but that said de-ings of the house of representatives; that fendant Reed, in preparing a record of said minutes, omitted a part of the said proceedings; that in truth, on the sixtieth day of said session, February 7, 1889, just before 12 o'clock P. M., the said speaker inquired if there was any further business; that the clerk replied that there was none; said speaker then requested the journal to be read, which was done by the clerk; that thereupon the proceedings, as recorded in said journal, were approved by the house of representatives, and by said speaker declared to be approved; that thereupon, the hour of 12 o'clock, midnight, having arrived and passed, the speaker did, after said hour, declare and announce that the time having arrived when, by act of congress, the session of the legislature must close, therefore he, as speaker, thereby then and there declared said session closed and adjourned without day; that no objection was made by the house, or any member thereof, to the said adjournment, or to the authority of the said speaker to declare the same adjourned, but all acquiesced therein; that after the speaker and part of the members had retired from the room, a portion of the members pretended to elect a speaker pro tem., to-wit, one George P. Wheeler, and assumed and pretended to proceed with the pretended legislation; that a large number of assumed and pretended bills were assumed to be passed by the said remaining members, and pretended to become the acts of the legislature; that all pretended pro-and demurs to the alternative writ of manceedings on said last day, after the speaker retired, were after 12 o'clock, midnight, and after said house had been adjourned; that in preparing the journal of said proceedings said clerk omitted to state, and did not state, that the minutes were read and approved by the house; that the speaker declared the house adjourned; that the house was adjourned by the acquiescence and assent of all the members; and that the speaker pro tem. was elected after the said adjournment, and the subsequent pretended legislation had and done was after such adjournment; that said chief clerk, Chas. H. Reed, pretends and asserts that he has made up the journal of said last day's proceedings, has secured the signature of said Wheeler as speaker pro tem., and delivered the same to Edward J. Curtis, secretary of the territory; but the minutes of proceedings, as prepared by said Reed, omit the matter as herein before alleged to be omitted, and are a false statement or record of said proceed-tary, has possession of said proceedings; ings; that the said secretary, Edward J. Curtis, treats and wrongfully holds out the minutes so signed by said Wheeler and the chief clerk as the true minutes, record, and journal of the house of representatives, and is recording the same as such journal, and

DEMURRER.

"Now comes the defendant Chas. H. Reed

date herein filed, on the grounds that it appears on the face thereof (1) that this honorable court has no jurisdiction of the subject of this proceeding; (2) that the court has no jurisdiction of the person of the defendant in this proceeding; (3) that said H. Z. Burkhart has not legal capacity to sue in this proceeding; (4) that there is a misjoinder of parties defendant in that said alternative writ joins this defendant and Edward J. Curtis, the secretary of the territory and an officer of the United States, as defendants; (5) that several causes of action have been improperly united, in that relief is demanded against this defendant on the ground that this defendant has in his possession certain proceedings of the house of representatives of the territory, and another alleged and distinct cause of action is stated against Edward J. Curtis, the secretary of the territory, on the ground that said Edward J. Curtis, as such secre

(6) that the same does not state facts sufficient to constitute a cause of action, or to entitle said plaintiff to relief by writ of mandamus against this defendant; (7) that the same is ambiguous, unintelligible, and uncertain in this: that it is first averred

therein, as a ground of relief against this defendant, that this defendant has in his possession the minutes of the proceedings sought to be reached herein, as a ground of relief against the said defendant Edward J. Curtis, secretary of the territory; that this defendant has filed said minutes with said secretary, as this defendant is required by law to do; and that said secretary retains and preserves the same, as he is required by law to do."

Not having had an opportunity until the present moment to see or know the tenor or effects of the points made in the opinion of my associates upon the bench, beyond the bare fact that the demurrer was to be sus-for an inferior officer of a territory to claim tained, the scope of my observations may be, perhaps beyond the required limits, made necessary by the opinion dissented from. But I will follow in some degree the order of the argument of the leading counsel in support of the demurrer.

conferring the needed power to issue the writ on the courts of the District of Columbia. Since then cabinet officers have constantly been held subject to the jurisdiction of courts with no more power than has this court. If the court can issue a writ at all, —of which there is no doubt,— no case can reasonably be supposed, unless it be the case of Clough v. Curtis, post, 8, now pending in this court, involving a part of this controversy, calling for the exercise of this power more emphatically than do the admitted facts in the case at bar. If cabinet officers are thus within the jurisdiction of the court, there is certainly no ground greater immunity, simply because he is appointed by the president. They, also, are appointed by the president, and stand nearer to him than any officer of the territory. The counsel for the secretary practically admits this by saying that a state 1. There is, I think, no room for a serious court cannot issue a writ of mandamus to question that this court has full and com- an officer commissioned by the United plete power to issue the writ as prayed; States, except as they are authorized by also, that it has jurisdiction of the subject- the United States. I think the counsel is matter of the complaint. The power to is- mistaken in this, and that he will find that, sue writs of mandamus must be vested while the rule as to state courts is not unisomewhere, and the legislature, in plain versal, it applies only where the officer's and unequivocal terms, has conferred it up- duties are purely federal, as in the case of a on this court. It seems to me too plain to United States land-officer; but not in such admit of any doubt. Section 1866, Rev. St. a case as this, where the officer is not in the U. S., says: "The jurisdiction, both appel- ¦ service of the United States, but only an inlate and original, of the courts provided for ferior officer of the territory, acting in and in sections 1907 and 1908 shall be as limited by for the territory. But, even if it were othlaw;" and in section 1907," the judicial pow-erwise, this court has federal jurisdiction er in New Mexico, Utah, Washington, Colo- as well as territorial. I suppose that fact rado, Dakota, Idaho, Montana, and Wyom- will not be disputed. I can see nothing ing shall be vested in a supreme court, dis- valid in the objection that a territorial offitrict courts, and probate courts, and in jus-cer is not amenable to the laws because he tices of the peace." Rev. St. Idaho, §§ 3815, is commissioned by the president of the 3816, tit. 2, entitled "Of the Supreme Court," United States. are as follows, viz.: "The jurisdiction of 3. The plaintiff has an unquestionable this court is of two kinds: First, original; power to sue. He was, and still is, the and, second, appellate." Its original juris- speaker of the house, and as such, had, ang diction extends to the issuance of writs of still has, the exclusive right to the performmandate, review, prohibition, habeas cor-ance of the duties set forth in the compus, and all writs necessary to the exercise plaint. The public requires it of him, even of its appellate jurisdiction. Section 3817 defines its appellate jurisdiction.

if no executive or administrative officer can be found willing to assist him to his own and the public right. If that right is invaded, as by the defendants' demurrer it is admitted to be in this case, he may invoke the aid of this tribunal to enable him to perform his sworn duties to the public. Any member of that legislative body may interpose to preserve the lawful records of its proceedings, and prevent the dearest rights of the community, the very foundation of its laws,-the evidence upon which the interests of thousands depend,—from being, in a wholesale manner, falsified and debauched. It was shown on the argument that in a matter vital to the public any citizen may institute proceedings by mandamus. High, Extr. Rem. §§ 431-433; Railroad Co. v. Hall, 91 U. S. 354; Hall v. Railroad Co., 3 Dill. 521. In Railroad Co.

2. So of the jurisdiction of the court over the persons of both defendants. It makes no difference that one of them, the secretary of the territory, is appointed by the president of the United States. He is not, therefore, the executive branch of the United States government, nor even of the territory of Idaho. Congress has declared, in the organic act of the territory, that the executive power of the territorial government is vested in the governor alone. The secretary is no more above the laws than the marshal, the United States district attorney, or the deputies of either of these officers, or the most humble person in the land. Kendall v. U. S., 12 Pet. 608, and U. S. v. Schurz, 102 U. S. 372. The authorities are numerous and clear that even cabinet officers are equally subject to the mandate v. Hall the supreme court of the United of courts with any other person; but it is not necessary to cite those authorities. The one principally relied on by the defendants is that of Marbury v. Madison, 1 Cranch, 137. But that case was decided on other grounds than the officini character of the party defendant. Congress supplied the defect found in the law in that case by

States held that mandamus was correctly brought by a citizen of Council Bluffs to compel the Union Pacific Railway Company to fulfill its contract with the United States to build a bridge across the Missouri river. This case meets the objection raised by the demurrer on this point, without at all referring to the official character and rights

of this plaintiff. The contract with the | Rev. St. U. S. § 1852, says: "The sessions of United States on the part of the Union Pa- the legislative assemblies of the several tercific Railway Company was one to enforce ritories shall be limited to sixty days' durawhich the attorney general would have tion." The act of the legislature fixing the been a proper officer to sue out the writ, hour recognizes the second Monday of Deand might have done it; but, as he did not cember as the first day of the session. The do it, the court held that any other citizen section (Rev. St. Idaho) is as follows: Secmight do so. tion 122. "At the hour of 12 o'clock M., on 4. It is also contended that there is a mis- the day appointed for the meeting of any joinder of defendants. No, there is no mis-regular session of the legislature, the presidjoinder if the facts are as stated in the com-ing officer, or, in his absence, the chief clerk plaint, and the demurrer admits them. of each house of the last session, must call What papers the secretary has are admit- the same to order, and preside until a preted to be unsigned, mutilated, and fraudu- siding officer is chosen, or, in case of the lent papers, and are not "archives of the absence of both of said officers, the senior legislature," which alone the secretary has member present must perform said duties. a right to receive, any more than would be All members-elect present, having certifithe records of a base-ball club, or any oth-cates of election from the clerk of the board er unlegislative association or gathering. of county commissioners of their respective Of this he was, and is, duly apprised. If counties, and no other person, has the right what is admitted to be true are real facts, to participate in the organization of the rethe secretary is aiding and abetting the spective houses. Neither house must orclerk in his attempt to foist upon the terri-ganize or transact business, but must adtory as records what are not records, to be journ from day to day until a majority of used, if at all, as conclusive evidence to es- all the members authorized by law to be tablish as facts what are not facts, and elected are present." It does not pretend that legislative acts were done which it is to extend the time fixed by congress, but admitted were never done by a legislature. merely fixes the hour of meeting, and deThe joining by these two officers in the per-clares it shall meet at noon of that day. petration of a grave wrong, one doing There is nothing whatever in the statute, or one part and the other completing it, either of them, or in the construction given makes them both particeps, and subject to them by either branch of the legislature in the same process, if necessary, for its cor- the numbering the days of the session, to rection and prevention. In this case it is justify this extraordinary claim. Both necessary. The secretary must produce bodies counted in their journals the 10th the fraudulent papers, abstain from treat- day of December as one day of the session, ing them as genuine, or, as he threatens to and numbered from it. Even the bodies do, from recording them and sending them which met, as is alleged, on the 8th day of to congress, and the several officers of the February, admit the hollowness of this preUnited States government, as genuine, or tense, by claiming its acts to have been in any way to act upon them, until the done on the 7th of February instead of on clerk shall write them truthfully, and they the day on which it is admitted they were shall have the necessary official sanction of in fact done. They themselves seek to take the chief officer of the house, whose pro- shelter under a false date. Were there anyceedings they profess to record, and until thing in this claim, no reason is apparent they thereby become real records and ar- why acts done before noon of the 8th chives of the legislature. There is no mis- should be antedated a day to bring them joinder. within the law.

5. Proceeding in the order of the attor- 6. It was clearly the duty of the presidney for the secretary, we may here inquire ing officers of both houses to obey the law; whether the session of the legislature did, and, when the constitutional time had exin fact, expire with the 7th day of Febru-pired, to declare the session ended. Such ary, 1889. The inquiry is not necessary, action is abundantly sustained by both perhaps, for the fact is admitted. But let authority and precedent. In this case the us look into the facts and the law. It met acts of both presiding officers were acceded on the 10th day of December, 1888. That to by both houses. What occurred in the was its first legislative day, and so appears house also occurred in the council. When on its journals. The session began with the minutes of the last day had been read, the beginning of that day. The claim that | and formally approved in the house by the it did not begin till noon of that day, and members in session, and the clerk had pubhence that the first day should end at noon licly announced that there was no more of the next day, and so for each day through its session, to the 61st day, simply because the territorial legislature had enacted that the legislature should meet at noon of the day appointed for the meeting, cannot for a moment be maintained. If such a thing could be, there would be no meridian to the legislative day. It met at 12 o'clock "M.;" that day's noon would be midnight. The law takes no notice of fractions of a day. Congress has said how long the session should continue, and it was not competent for the territorial legislature to prolong the time. This act of congress is in the following words, and has all the force of a constitutional provision:

business before the house, and the speaker, at 1 o'clock in the forenoon of the 8th of February, declared to the listening house that the hour fixed by congress for adjournment had arrived and passed, and that, in view of such fact, he, as presiding officer, declared that session ended, and there was no objection or appeal from this decision, that session was ended. Three things concur to give force and effect to the solemnity of his act: First, the expiration of the time fixed by congress; second, the official action of the presiding officer; and, third, the assent and concurrence of the entire body. Whether, under such conditions, the house broke up, as is conceded it did,