The People, on the relation of Scott, Lieutenant Colonel of the Forty-First Regimental District, against The Supervisors of Chenango; The Same, on the relation of Humphrey, Commander of the Forty-Third Regimental District, against The Same, 8 N.Y. 317

Willard, J. —The plaintiffs in error insist that the ac of April 16, 1851, entitled

an act for the enrollment of the militia, &e., is unconstitutional, both in the mode in which it was passed, and in its subject matter, apparent on the face of the act. If either of these grounds be established, the judgment of the court below should be reversed. The objection on the score of form is divided into three heads; 1st. The question on the final passage of the act was not taken by ayes and noes. 2d. The ayes and noes were not duly entered upon the journal; and 3d. Three fifths of all the members elected to the legislature were not present at its final passage.

The first answer to these objections is, that the plaintiffs in error are not in a condition to raise either of them Where the objection to the validity of a law springs out of the failure of the legislature to comply with the provisions of the constitution, which is not apparent upon the act itself, it should be distinctly set forth in the pleadings, or in this case in the return. The adverse party should have an opportunity to controvert the allegation, and to prove a due conformity on the part of the legislature with the requirement of the constitution.

The legal presumption is that a law, published under the authority of the government, was correctly passed, so far at least as relates to matters of form. (Thomas v. Dakin, 22 Wend. 9; Hunt v. Van Alstyne, 25 Wend. 608.) It is not averred in the return, that the question on the final passage of the act was not taken by ayes and noes, or that the ayes and noes were not duly entered in the journal, or that three fifths of the members elected were not present at its passage. It is merely asserted in the return, that the law was oppressive and unconstitutional in its passage.

No fact is stated which brings it in conflict with the constitution. The next answer is that the act in question does not belong to that class of laws, requiring the presence of three fifths at its passage. For the general purposes of legislation a majority of each house constitutes a quorum to do business. (Const. Art. 3, §10.) The assent of two thirds of the members elected to each house is only requisite in bills appropriating the public money or property for local or private purposes. (Id.

Art. 1, § 9.) And three fifths are required to form a quorum only on the final pas sage in either house of acts which impose, continue or revive a. tax, or create a debt or charge, or make, continue or revive any appropriation of public or trust money or property, or release, discharge or commute any claim or demand of the state. And no bill can be passed unless by the assent of a majority of all the members elected to each branch of the legislature. (Cora. Art. 7, § 14, and ib. Art. 3, § 15.) The act in question does not fall within the class which requires the majority of two thirds.

It does not appropriate the public moneys or property for local or private purposes. Nor does it belong to the class which requires for a quorum, the presence of three fifths of all the members elected to either house. 9Art. 7, § 14.) It neither imposes, continues or revives a tax, or creates a debt or charge, Or makes, continues or revives any appropriation of public, or trust money or property, or releases, discharges or commutes any claim or demand of the state.

It substitutes the payment of fifty cents, by all able bodied white male citizens between the ages of eighteen and forty-five, subject to military duty in this state, and not doing duty in the uniformed militia, for the services on parade formerly required, and in lieu of the fines for nonperformance of military duty formerly exacted, and which were thereby abolished. It is called, indeed, a commutation tax, and the machinery for the collecting of the general taxes, is adopted to enforce it. But it is not a tax within the meaning of the 14th

section of

article 7 of the constitution. To commute for military services by the payment of a sum of money, is analogous to the practice which has long prevailed in this state, of commuting for highway.labor. See R. L. of 1801, 591, § 8; 2 do. of 1813, p. 272; 1 R. S. 509, § 35.

The same principle has.long prevailed in our militia laws.- It maybe seen in the act of April 7, 1801, (1 K. & R. 503,) to organize the militia, when a commutation tax of three dollars a head was collected of the Quakers in lieu of military duty, and the same machinery for collecting it, if not voluntarily paid, was adopted as in the act under consideration, (lb. § 36.) Nor is the appropriation of the fund to military purposes, for the benefit of the militia of the county, an appropriation of public or trust money, within the meaning of the constitution.

An appropriation of fines and commutation money, under our acts relative to highways, for the im-. provement of the roads in the town or road district, and of military fines and commutations for the benefit of the militia, has long been a part of the policy of our laws. It existed 'without complaint, at the adoption of the last constitution, and for forty years before, and there is no reason to believe that any abuses in the system were known to the convention, or led to the adoption of the 14th

section of the 7th article. That

section was framed to guard against a class of abuses of an entirely different character. In adverting to the debates in the constitutional convention of 1846, (Argus Rep. 355 et seq. and Atlas Report, 461, et seq.,) it will be seen that on the 30th July, Mr. Hoffman made two reports, one of which, containing seven sections, was entitled “ Of the existing debts and liabilities of the state, and to provide for the payment thereof,” and the other, of seven sections, entitled “ Of the power to create future state debts and liabilities and in restraint thereof.” The first report, after much discussion and modification was finally adopted and forms the first seven sections of the 7th

article of the constitution. The second report was adopted without alteration, and forms the last seven sections of the same article. ' I do not find that either of these last sections met with any opposition in the convention, or that they gave rise to any discussion. By the rule for construing statutes and acts of public bodies, the taxes spoken of in the 14th

section of the 7th article, which the legislature are prohibited from imposing, continuing or reviving, unless three fifths of all the members elected to either house are present when the final vote is taken, means such tax as is elsewhere spoken of in the same article; viz.: a tax general in its operation and coextensive with the state. It would do violence to the

section to suppose that it had reference to the commutation tax, so called in the military law, which operates only upon a small class of persons, and which is a mere substitute of money for military duty.' While this law did not require for its passage the presence of three fifths to form a quorum, it required, like other laws, that- the question on its final passage should be taken by yeas and nays, and that they should be duly entered on the journals. It has never been the practice for the presiding officers to certify that these directions of the constitution were complied with.

The presumption is that they were; and in my judgment it is not admissible to prove the contrary in any case, and certainly not where the pleadings have not tendered an issue on that fact. But assuming that we may look beyond the act as published by authority, into the journals of the legislature, it will be seen that there is no foundation for the charge that the legislature failed to comply with the directions of the constitution.

On looking into the senate journal of 1851, it appears that the bill in question originated in that body, and that on its final passage the yeas and nays were taken and entered in the journal, and were 21 to 2. (Journal of the Senate of 1851, p. 292, 293.) The assembly returned the bill to the senate with divers amendments.

The senate had these amendments under consideration, and proposed certain amendments thereto, and then agreed to the amendments as amended by a vote of 23 to 1, the yeas and nays being taken and entered in the journal. (Senate Journal, 1851, p. 541.) The amendments thus amended were returned by the senate to the house. The latter body nonconcurred in the amendments of the senate, and a joint committee of conference was appointed, which recommended that the senate should recede from two of its amendments, and that the house should adopt the residue.

This was agreed to by the house by a unanimous vote, eighty-six voting by yeas and nays, which are entered in their journal. The senate receded from the two' amendments as recommended by the joint committee, without a vote by yeas and nays and without entering the names of those voting in the journal. The omission to call the yeas and nays, on receding from these two amendments and recording the names of those voting, is the only fact objected to as a departure from the constitution.

I think the requirement of the constitution was fully satisfied by the senate on the final passage of the bill before it was sent to the house, and on the final passage of the amendments. The course and practice of the legislature did not require that the whole bill should be again read, on receding from the two amendments recommended to be abandoned by the joint committee of conference. There is nothing in the constitution which requires the yeas and nays to be taken in receding from an amendment which the senate had once adopted by the requisite vote and in the prescribed form.

In point of fact, every part of the law as it stands, has received the requisite majority in both houses, the yeas and nays in both were taken on its final passage and entered on the journals. The law, therefore, was passed without violating any of the forms of the constitution. Again; the provision of the constitution requiring the question upon the final passage of a bill to be taken immediately upon its last reading, and the yeas and nays to be entered on the journal is only directory to the legislature. There is no clause declaring the act to be void if this direction be not followed.

It does not stand on the same footing with the requirement of a certain number to form a quorum, or to pass a bill. In the latter case there is a defect'of power if the requisite number be not present and voting. The supreme court declared that a provision for recording the yeas and nays in the charter of a municipal corporation was directory and not imperative.

Although the act of May 12, 1847, p. 276, directs the presiding officers of each house, when a bill requires for its passage a quorum of three fifths of all the members elected to each house to be present on the final passage thereof, to certify to such fact, yet it makes the certificate only presumptive evidence of.the fact contained in it. Hence, a bill certified to be passed when the requisite quorum was present, may be shown under proper pleadings, to have been passed, when three fifths were not present.

On the same principle, if the proper officers have failed to give the certificate, the fact that three fifths were present when it was passed, may be shown from the journals or other evidence of an equally satisfactory character. The act of 1847 does not make the certificate or the want of one conclusive, but only presumptive evidence. On a reference to the journals of both houses it appears that in the,present case, there was the quorum of three fifths present in each house on the final passage of the act.

The act was thus passed in full compliance with the constitution, even if we admit that a quorum of three fifths was indispensable. It is not competent for the legislature to make the failure" of its officers to append the proper certificate, defeat the provisions of the constitution Such would be the effect of the act if the want of a certificate was made conclusive evidence that three fifths were not present, when the final vote was taken. The constitution has clothed the legislature with no such power. And in the present instance, they have not arrogated to themselves any such power.

The objection that the law is not obligatory because it is in conflict with the laws of congress is equally untenable It has not been shown that in respect to that part of the law which the plaintiffs in error were required to administer, there is any incongruity between it and the laws of the United States.

And I am not prepared to say that any part of it conflicts either with the constitution of the United States, or with any laws of the general government The next objection raised by the plaintiffs in error is, that the board of supervisors had no power over the subject, except at their annual meeting, and ás they omitted to do their duty then, it is contended they can not be compelled to do it at any other time, without the aid of a special act of the legislature. This position is untenable.

The supervisors are required to meet annually in their respective counties for the despatch of business, and they may hold special meetings at such times and places as they may find convenient. (1 R. S. 366, § 1.) Their neglect to perform their duty at the time required can not nullify the statute. They or their successors are bound to do what was required and on failure to perform it, may be compelled by mandamus, and in some cases are liable to a penalty for their neglect. (Caswell v. Allen, 7 J. R. 63, 68; The People v. The Supervisors of Columbia, 10 Wend. 363; The People v. Allen, 6 Wend. 486; People v.

Steele, 2 Barbour, 418; The People v. Collins, 19 Wend. 56.) The omission of the plaintiffs in error to do their duty at the proper time, though it has thrown some embarrassment in the way, does not render a substantial compliance "with the statute impossible. The supervisors, or the sue-' cessors of those then in office, can be convened, and can issue their warrant for the commutation tax. The mandamus was a proper way to compel them to proceed, and I think that the judgment of the supreme court should be affirmed. Judgment affirmed in each case.