ture. In some states, though not all, the members are also exempt from service of any civil process. This is the case, for example, by constitutional provision, in Kansas, and it is there held that service of original process upon a member during the session is entirely void, and gives the court no jurisdiction over the person of such member. But, if the constitutional privilege extends only to arrest on a charge of crime, this will not prevent the service of a summons or other process in a civil action, not involving the arrest and detention of the person of the legislator.10 It would, however, prevent his being taken upon a capias, or the service of any writ the disobedience to which would be punishable by attachment of the person.

Journals.

15

In nearly all the states the constitutions provide that each house of the legislature shall keep a journal of its proceedings, and publish the same, excepting such parts as may require secrecy. The journal is a daily record of the proceedings of the house. It is kept by the secretary or clerk, and in it are entered the appointment and action of committees, the introduction of bills, motions, the votes and resolutions of the house, and such other matters as the house may direct to be spread upon the journal, in the order of their occurrence. It is held in some states that it is not permissible to go behind an enrolled statute, in seeking to show that it was not duly passed. But in other states (probably a majority) it is considered that, if an allegation is put forward that the act in question was not passed by the legislature in the form and manner required by the constitution, recourse may be had to the journals of the legislature to determine the question. Thus it is said: "Acts of the legislature duly enrolled and signed by the officers of the two houses, and filed in the office of the secretary of state, with the approval of the governor thereon, are prima facie valid and authoritative laws; but the journals of the two houses that enacted them may be resorted to, to ascertain whether the mandatory requirements of the constitution have been complied with

15 Cook v. Senior (Kan. App.) 45 Pac. 126.

16 Rhodes v. Walsh, 55 Minn. 542, 57 N. W. 212; Gentry v. Griffith, 27 Tex. 461. But compare Miner v. Markham, 28 Fed. 387.

by the legislature in their enactment; and if such journals show explicitly, clearly, and affirmatively that any essential constitutional requirement has not been complied with, or if they fail to show any essential step in the process of enactment that the constitution expressly requires them to show,-such, for example, as the entry of the ayes and noes upon the final passage of any bill in either house, then such journals would prevail as evidence, and the enrolled bill, as evidence of the law, would have to fall." 17 But if the journal entries are ambiguous, or if they fail to show facts which the constitution does not expressly require them to show, this will not raise any presumption against the validity of the action of the legislature. On the contrary, the courts will presume that the legislature fully complied with the constitutional requirements, although the journals do not show the fact." "The enrolled statute," says a learned court, "is very strong presumptive evidence of the regularity of the passage of the act embraced in it and of its validity, and it is conclusive evidence of such regularity and validity, unless the journals of the legislature show clearly, conclusively, and beyond all doubt that the act was not passed regularly and legally. If there is any room to doubt as to what the journals of the legislature show, if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid; but in this state, where each house is required by the constitution to keep and publish a journal of its proceedings, we cannot wholly ignore such journals as evidence. They must be given some weight in determining the regularity and validity of the passage of statutes; and therefore where there can be no room for doubt, from the evidence furnished by such journals, that the statute was not passed by a constitutional majority of the members of either house, then the courts may declare that the supposed statute was not legally passed and is invalid.” 19 An act of congress, duly enrolled, signed

17 State v. Hocker, 36 Fla. 358, 18 South. 767.

18 State v. Illinois Cent. R. Co., 33 Fed. 730; Opinion of the Justices, 52 N. H. 622.

19 State v. Francis, 26 Kan. 724. And see, to the same effect, Chicot County v. Davies, 40 Ark. 200; Glidewell v. Martin, 51 Ark. 559, 11 S. W. 882; Wise

by the presiding officers of the two houses, approved by the President, and deposited in the department of state, cannot be invalidated by the mere fact that the journals of congress do not show that it was passed in the precise form in which it was authenticated and signed.20 Further, it must be observed that, if recourse is had to the journals, their testimony must be taken as absolutely true and unimpeachable. What the journals do affirmatively state cannot be contradicted or modified by any extraneous evidence whatever. And if the enrolled act and the journals together show a compliance with all the requirements of the constitution, no other or further evidence impugning the act can be received. Thus, in such a case, it is not permissible to show by parol that some of the members needed to make up the majority in favor of the bill were not duly elected or qualified.22

The legislature may at the same or a subsequent session correct its journals, by amendments which show the true facts as they actually occurred, when it is satisfied that by neglect or design the truth has been omitted or suppressed."

Bribery of Legislators and Lobbying.

The attempt to bribe a member of the legislature is made a criminal offense, either by the constitution or a statute, in all the states, as is also the taking of a bribe by such member. Moreover, the law sets its face severely against lobbying. In two states this is made a felony by the constitution.24 And in all, the courts refuse to lend their aid in the enforcement of contracts for lobby services, declaring all such agreements to be immoral and void. "A contract for lobby services, for personal [or political] influence, for mere importunity to members of the legislature or other official body, for bribery or corruption, or for seducing or influencing them, v. Bigger, 79 Va. 269; Hunt v. State, 22 Tex. App. 396, 3 S. W. 233; Attorney General v. Rice, 64 Mich. 385, 31 N. W. 203.

20 Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495.

21 U. S. v. Ballin, 144 U. S. 1, 12 Sup. Ct. 507.

22 State v. Smith, 44 Ohio St. 348, 7 N. E. 447, and 12 N. E. 829.

28 Turley v. Logan Co., 17 Ill. 151.

24 Const. Cal. art. 4, § 35; Const. Ga. art. 1, §§ 2, 5. The constitution of California, as above, defines "lobbying" as "the seeking to influence the vote of a member of the legislature by bribery, promise of reward, intimidation, or other dishonest means."

for any other arguments or persuasions or inducements than such as bear directly and legitimately upon the merits of the pending application, is illegal and against public policy and void." 25 In a case before the supreme court of the United States it was said, after referring to a number of decisions: "The sum of these cases is: First, that all contracts for a contingent compensation for obtaining legislation, or to use personal or any secret or sinister influence on legislators, are void by the policy of the law. Second, secrecy as to the character under which the agent or solicitor acts tends to deception and is immoral and fraudulent; and where the agent contracts to use secret influences, or voluntarily, without contract with his principal, uses such means, he cannot have the assistance of a court to recover compensation." 28 It is even held that a contract stipulating a compensation for services to be rendered in procuring an act to be passed by the legislature for the benefit of the party promising to pay is contra bonos mores, and cannot be enforced, even though no improper means are alleged or shown to have been resorted to by the agent in obtaining the passage of the act.27 And a contract by which one agrees to "use his utmost influence and exertions" to procure the passage of a bill is void as against public policy; for it tends directly to secret, corrupt, and improper tampering with legislative action.28 On the same principle, an agreement by which one contracts to withdraw or withhold his opposition to a pending legislative measure, for a consideration in money or other thing of value, is void.29

But it does not follow that a person interested in pending leg islation may not employ agents or attorneys to represent, in a proper manner and at a proper time and place, his reasons for desiring or opposing the passage of the bill. Such contracts are frequently made, and are valid at law, and perfectly consistent with

25 McKee v. Cheney, 52 How. Prac. (N. Y.) 144. See, also, Sweeney v. McLeod, 15 Or. 330, 15 Pac. 275; Coquillard's Adm'r v. Bearss, 21 Ind. 479; 2 Pars. Cont. (8th Ed.) 878; Bish. Cont. § 499.

26 Marshall v. Railroad Co., 16 How. 314.

27 Gil v. Davis, 12 La. Ann. 219.

28 Mills v. Mills, 40 N. Y. 543.

29 Smith v. Applegate, 23 N. J. Law, 352. But compare Edwards v. Railway Co., 1 Mylne & C. 650.

the nicest sense of honor.& 80 "It is allowable," says the court in New York, "to employ counsel to appear before a legislative committee, or before the legislature itself, to advocate or oppose a measure in which the individual has an interest." 81 "We entertain no doubt that an agreement, express or implied, for purely professional services, is valid. Within this category are included drafting the petition to set forth the claim, attending to the tak ing of testimony, collecting facts, preparing arguments, and submitting them orally or in writing to a committee or other proper authority, and other services of like character. All these things are intended to reach only the reason of those sought to be influenced. They rest on the same principle of ethics as professional services rendered in a court of justice and are no more exceptionable." 82

LEGISLATIVE POWER OF STATES IN GENERAL.

136. The rightful power of the legislature of a state extends to every subject of legislation, unless, in the particular instance, its exercise is forbidden, expressly or by necessary implication, by the constitution of the United States, a treaty, an act of congress, or the constitution of the state.

Under the system of government in the United States, the people of each of the states possess the inherent power to make any and all laws for their own governance. But a portion of this plenary legislative power has been surrendered by each of the states to the United States. The remainder is confided by the people of the state, by their constitution, to their representatives constituting the state legislature. At the same time, and by the same instrument, they impose certain restrictions and limitations upon the legislative power thus delegated. But state constitutions are not to be construed as grants of power (except in the most general

30 Winpenny v. French, 18 Ohio St. 469.

81 Lyon v. Mitchell, 36 N. Y. 235; Sedgwick v. Stanton, 14 N. Y. 289.

82 Trist v. Child, 21 Wall. 441. And see Yates v. Robertson, 80 Va. 475; Denison v. Crawford Co., 48 Iowa, 211; Coquillard's Adm'r v. Bearss, 21 Ind.