
    In the Matter of the Appraisal of the Estate of Mary A. Weeks, under the Acts Relative to the Taxable Transfers of Property. Thomas W. Weeks, as Executor, etc., of Mary A. Weeks, Deceased, Appellant; The Comptroller of the State of New York, Respondent.
    Second Department,
    December, 1905.
    Evidence—journals of Legislature admissible to show that required number of members were present at passage of Tax Law.
    When an executor claims that the act authorizing the transfer tax (Laws of 1903, chap. 41) is unconstitutional in that three-fifths of the members of both houses, as required by the Constitution (N. Y. Const, art. 3, § 25), are not shown to have been present by the certificates of the presiding oflicers of said houses as required by the Legislative Law, section 40, certified copies of the journals of the two houses and corrected certificates filed by the presiding officers thereof are admissible to show that in fact three-fifths of the members were present.
    Appeal by Thomas W. Weeks, as executor, etc., of Mary A. Weeks, deceased, from an order of the Surrogate’s Court of the comity of Orange, entered in said Surrogate’s Court on the 10th day of July, 1905, affirming an order theretofore entered in the proceeding fixing the. transfer tax .upon ■ the estate of the said decedent. , '
    
      Marshal Stearns, for the appellant.
    
      Henry W. Wiggins [George M. Judd with him on the brief], for the respondent.
   Miller, J.:

The appellant contends that chapter 41 of the Laws of ■ 1903 (amdg.. Tax Law [Laws of 1896; chap, 90.8], § 221) violates section-25 of article 3 of the State Constitution, in that three-fifths _ of all the. members elected to- the Assembly and the Senate were not present on its passage, and for proof of the fact relies, upon the certificates of the presiding officers of the two houses,, which merely state that a majority of the members of assembly and senators respectively Voted in favor, thereof ; and it is- contended that section 40 of the Legislative Law (Laws of 1892, chap. 682, as amd. by.Laws of 1894, chap. .53) makes said certificates conclusive evidence of the fact that three-fifths of the members of each . house-respectively were -not present. Said section 40 is as follows : Certificate of presiding officer.— Upon the passage of a • bill or concurrent resolution by either house, the presiding officer thereof shall. append to ‘such bill or resolution a certificate of the date -of its passage by the votes Of a majority of all the members ■élected to such house or in the presence of three-fifths of such members, if such be the case, or by the votes of two-thirds of all the members elected to such house, as the case maybe.. ¡No. Bills shall be-deemed to have- so passed unless certified by the presiding officer, which certificate to such effect shall be conclusive evidence . thereof.” ' ■

Over the objection of the appellant the. respondent put in evidence certified copies of the journals of'the two houses, showing the presence of the requisite three-fifths upon the passage of the bill in each house, also certified copies of amended' and corrected certificates of the two presiding officers, made after the adjonrnipent of the Legislature, attached to -the. original bill or filé in the office of the Secretary of State, certifying'that said three-fifths were present. The learned surrogate held that the Original defective cér-. tificates of the two presiding officers were conclusive, but that said provision of the Constitution only applied to general tax laws; that the act in question was a special tax law, and, therefore, not within said constitutional provision. It is unnecessary to determine 'this question, as it is equally unnecessary fo determine how far the Legislature may go in prescribing rules of evidence which might have the effect of defeating constitutional provisions, because it is clear that the certificates in question are defective within the authority of Rumsey v. N. Y. & N. E. R. R. Co. (130 N. Y. 88) and Matter of New York & Long Island Bridge Co. (148 id. 540), and'that, therefore, resort may be had to the journals to prove the fact. The original defective certificates are entirely silent respecting the number of members present, and a statement that a majority of all the . members elected voted in favor of the bill indicates in no way whether three-fifths were present; this omission clearly rendered the certificates defective within the authorities cited, and, therefore, further consideration of the interesting questions presented is unnecessary at this time.

The order of the Surrogate’s Court should be affirmed, with ten dollars costs and disbursements.

Bartlett, Jenks, Hooker and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  