
    John Fordyce v. James H. Godman, auditor of State.
    1. At the time of the raid through Ohio, by the rebel forces, led by John H. Morgan in 1863, and their destruction of private property, there was no-subsisting law requiring or authorizing the payment, by the State, of the' damages thereby occasioned to individuals; and therefore, under the provisions of the 29th section of the 2d article of the State constitution, claims for such damages cannot be paid out of the State treasury till allowed by the concurrent votes of two-thirds of the members elected to each branch of the general assembly.
    2. Upon the question whether such claims have been allowed by tbe number of members required by the constitution, the legislative journals must, furnish the appropriate evidence.
    Application for a mandamus.
    On the 8th of February, 1870, tbe plaintiff filed in this court his petition for a mandamus directed to James H. God-man, auditor of State. The petition states in substance :
    
      1. That on the 30th day of March, 1864, the general assembly passed an act “ to provide for the appointment of commissioners to examine claims growing out of the Morgan raid, and prescribing their duties.” That the commissioners appointed under said act, in discharge of their duty, examined the claim of the plaintiff for damages occasioned to him iby said raid, in the burning of his warehouse and goods therein, and in the destruction and loss of a large quantity of tobacco and other property, and allowed it, to the amount of $4,366.
    2. That on the 30th day of April, 1869, the general assembly passed an act “ to provide for the payment of claims growing out of the military expedition of John H. Morgan in the State of Ohio, a.d. 1863 ; ” that in accordance with the provisions of said last act, the governor, before the 1st day of December, 1869, delivered to the defendant, as auditor of State, a certified abstract of the claims allowed by the commissioners appointed under said act of 1864.
    3. That on the 5th'day of May, 1869, the general assembly passed an act providing for the payment of said money; that the plaintiff demanded of the defendant a warrant upon the treasury of the State for the amount of his claim, which the defendant in disregard of his official duty refused to give him, and thereupon the plaintiff makes this application.
    An alternative writ was awarded, commanding the auditor to issue to the plaintiff a warrant on the treasurer of State for the amount of the plaintiff’s claim, or show cause, by a day named, why he has not done so.
    The defendant, refusing to issue the warrant, shows the following causes therefor:
    1. That in 1863, said John H. Morgan, with a large body of men then in armed l’ebellion against and at war with the government of the United States, with force and arms invaded the State of Ohio, and maliciously destroyed the property of the plaintiff, the value of which he seeks to compel the State to pay by this proceeding.
    That when said property was so destroyed, there did not exist in Ohio any law of the State whereby any provision was made for the allowance or payment of said damage by tbe State.
    That no act of the general assembly, having tbe force and effect of law, bas, since said property was destroyed, been passed by tbe general assembly, by wbicb said alleged claim has' been “ allowed,” or acknowledged as a valid claim against tbe State.
    That tbe pretended act of April 30th, 1869, ought not to have- and bas not tbe force and effect of law, so far as it seeks to “ allow ” tbis claim against the State, because tbe general assembly, as appears by its journals, that pretended to pass it, was composed, for each branch thereof, of tbe following number of members elected thereto, to wit: tbe bouse of representatives 105 members, and tbe senate 37 members.
    That in tbe bouse, 60 members, and no more, voted for tbe bill upon its passage; and in the senate, 19 members thereof, and no more, voted for its passage.
    That tbe act of tbe same general assembly, referred to in tbe petition as passed on tbe 5th day of May, 1869, bas not, so far as it relates to tbis claim, tbe force and effect of law, because it received but 62 votes of tbe members elected to tbe bouse of representatives, and but 19 votes of tbe members elected to tbe senate.
    2. That tbe State of Ohio did not cause tbe damage alleged, and bas never promised, nor rendered itself liable, to pay for tbe injuries alleged to have been sustained.
    Tbe defendant, therefore, says that he ought not to be compelled to draw bis warrant, etc.
    To tbe answer of tbe defendant, tbe plaintiff interposes a general demurrer.
    
      H. G. Hoffmcm for plaintiff:
    I. Tbe legislation upon wbicb tbis case depends is not embraced within tbe limitations and operation of section 29, article 2, of tbe constitution.
    Tbe plaintiff is neither an “ officer, public agent or contractor ; ” and, therefore, tbe first branch of section 29 does not concern Mm. There is but one other class of persons mentioned in or contemplated by said section, to wit, elairncmts. The language of the section is, “ nor shall any money be paid on any claim.”
    What is a claim ? It is a demand as of right, a challenge of ownership. “ It is, in a juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty.” Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 539, 615.
    In the same case, Story says: “ A more limited, but at the same time an equally expressive, definition was given by lord Dyer, as cited in Stowell v. Zouoh, Plowdon, 359, that ‘ a claim is a challenge by a man of the propriety or ownership of a thing, which he has not in possession, but wMch is wrongfully detained from him.’ ”
    
      “ An unascertained right to property in the possession of another.” Bell’s Die. See, also, 4 Sanford’s Ch. R. 381 .also, Bouvier’s and Burrill’s Law Dictionaries.
    The plaintiff had no claim against the State, in any legitimate or proper sense of that term, prior to the statutes in question. His claim originated in, and was created by, the statutes. The State was, in no sense, a party to his loss. It had not received or taken anything from him; nor had he-suffered loss through its agency. His loss was an incident of a war upon the general government by a portion of its citizens. The State owed him nothing; and although it may grant him needed relief, it can, in no proper sense of the term, be said that the State paid a claim.
    What is payment ? “ To satisfy by giving an equivalent for something received or bargained for.” Worcester. “ To discharge an obligation by a performance according to its terms or requirements.” Forbes, J., 1 Cush. R. 16. The words pay and claim are well used together, and aptly embody the meaning which I attribute to them. The difference between discharging an obligation and granting relief where there is no liability, is clearly recognized by the language of the very section under consideration — “ no extra compensa
      
      tion shall he made ; ” “ nor shall any money be paid on any claim.” An “ officer, public agent or contractor ” may suffer loss by some misadventure or casualty, and the legislature may, by a two-thirds vote, grant relief. The relief in such case is a mere matter of grace and favor; it is not \hepayment of a claim. Extra compensation, a beneficence^ a gift, is made or granted; a claim, a debt, a liability, is paid or discharged.
    The history of the adoption of this section of the constitution clearly shows that its language was not loosely employed, but carefully selected because of the exact meaning of the words used. Debates O. O., vol. i. p. 161; vol. ii. p. 808, 597.
    But why was this section adopted, and what was it intended to accomplish % Its history in the convention gives a full and satisfactory answer. An abuse or evil had grown up out of a practice which had obtained in the legislature, of granting extra compensation to officers, agents and contractors, which the convention wanted to correct or suppress. Section 29 was introduced and adopted for that purpose. Debates O. C., vol. i. p. 571.
    I now submit that section 29 was intended to embrace the cases of extra compensation to the three classes of persons named in it, and claims resulting from the agency of one or both of the parties to them; and it cannot, by any reasonable or fair interpretation, considering either the words, the context, the subject-matter, the causes, the effects and consequences, the spirit and reason or the contemporaneous history of the section, be extended to cases arising in mere casualty, and in which neither party had any agency whatever. (The principal discussion on this subject is in vol. ii. Debates O. C., pages 569 to 571, 597.
    2. There is no incompatibility between the laws in question and the constitution, if said laws do fall within the operation of said section.
    According to the journals of the legislature, neither of the statutes upon this subject was passed by a two-thirds vote. Considering this case, then, as covered by section 29, the only question which it presents is this: is the act of April 30, 1869, a “pre-existing law” in the sense in which that term is used in said section ? The only words of the section, important to consider in this connection, are “ nor shall any money be paid on any claim, the subject-matter of which shall not have been provided for by pre-existing law.”
    The legislature does not, literally, pay money. It only provides for and directs the payment. “ No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law: ” section 22, article 2, constitution of Ohio. What does “ pre-existing ” mean ? It has but one meaning, and that is “ existing beforehand, or before something else:” Webster, Worcester and others. The sentence under consideration may be read “ nor shall any money be appropriated for the payment of any claim, the subject-matter of which shall not have been provided for beforehand, by law." The words “pre-existing” and “beforehand” relate to time, and simply signify that one matter exists, before another, or should exist before another is accomplished. To what time then does it relate, in the present, connection, or before what time must this law, called a “ preexisting law,” be passed. Must it antedate the origin of the “subject-matter” of the claim, or the act of appropriation?. It is the clear and single purpose of section 29 to impose a restraint or limit upon the legislature, in the aet of appropriating money, and it simply means that the legislature shall not make an appropriation for. the payment of a claim (except by a two-thirds vote), unless the subject-matter of the claim shall have been provided for by law, beforehand, or before such appropriation is made.
    The attention of the court is specially called to the case of Weister et al. v. Hade et al., 52 Penn. St. 474, 477, 479, and 480.
    
      W. B. Golden, also, for plaintiff:
    It was the duty of the auditor to issue his wax*rant. But whether the court will compel him to do so, is another question. The court will or will not as they shall settle the question — Is the law constitutional ? That question depends on the construction to be given to the 29th section of article 2 of the constitution.
    Every reasonable intendment is to be made in favor of the proceedings of the legislature. It is not to be presumed that the general assembly, or either house of it, has violated the constitution. Syllabus, 3 Ohio St. 475.
    Therefore these laws are to be presumed to be valid.
    How are they to be shown to be invalid ? If at all, it must be by an inspection of the journals. Can the court look to that source for information ? The case of Loomis v. Moffitt, 5 Ohio, 363, seems to support that view, but I have been unable to find any other authority, and even that is doubtful.
    But suppose the court will look to the Journal, and it shows that the “ pretended ” law was passed by less than a constitutional number of votes, would the court upon even that evidence declare the law invalid? The case of Miller & Gibson v. The State, 3 Ohio St. 475; is the only one in Ohio in which the direct question is mentioned. And in that case the court speaks of it only as possible that a court would hold a law invalid because the journals show that a constitutional majority of both houses did not vote for it. It would seem that that case was almost a holding in favor of the validity of the acts in question.
    The grant of legislative power to the general assembly, by the constitution, being general, where the power of the general assembly to enact such a law is drawn in question, the proper inquiry is, whether such an exercise of legislative power is clearly prohibited by the constitution. 15 Ohio St. 573 ; 10 Ohio, 235 ; 1 Ohio St. 77; 11 Ohio St. 641, 534.
    By section 1 of article 2 of the State constitution the legislative power of the State is vested in the general assembly ; and by section 9 of the same article it is provided that “No law shall be passed in either house without the concurrence of a majority of all the members elected thereto.”
    Therefore the kind of legislation embraced in the acts of April 30 and May 5, 1869, is within the legislative power of the majority unless otherwise specially provided for. . If it is otherwise specially provided for, it must be by section 29 of article 2 of the constitution.
    Hid the passage of the acts under consideration require a two-thirds vote? That they had a majority vote in each house is admitted. Hid they so clearly require a two-thirds vote, as to leave no doubt ? If it is doubtful, the presumption in favor of the law is sufficient to maintain it. 15 Ohio St. 318, 573; 1 Ohio St. 77,437; 11 Ohio St. 641; 2 Ohio St. 607; 4 Ohio St. 308.
    Section 29 of article 2 was adopted as a means of protection — as a limitation of the power of the legislature to pay a certain class of claims; not ordinary claims, as the legislature has unlimited power over such claims.
    The claims, then, provided for by section 29 are extraordinary claims. Those provided for by the first clause of the section having a subject-matter already provided for, and therefore, not payable at all, unless two-thirds of the members vote a gmtwity. The claims provided for by the second clause of section 29 are equally extraordinary. Where parties, with full knowledge that they are acting without authority of law, proceed to render service for the State, with the expectation of being rewarded therefor, are notified that no such claim can be paid unless the subject-matter is provided for by pre-existing law, etc.
    If we use the word “ pre-existing ” in the sense in which it is used by the attorney-general, by what process of reasoning can the provisions of the section be said to be applicable to these claims ?
    The subject-matter was not such as could have been provided for by that kind of pre-existing law.
    The true rule is, if the claim originates by the act of the claimant, he should receive no pay except in the special manner provided. But if the claim is created without any agency or act of the claimant in a case where the benefit of a pre-existing law could not have been secured, then it is an ordinary claim, and, if found just and equitable, should be allowed and paid as all other ordinary claims are allowed and paid. In what sense is the word “ pre-existing ” as used to be understood? The attorney-general claims the law must pre-exist the claim. A pre-existing law providing for the subject-matter of a claim cannot pre-exist the subject-matter itself. And if “ the subject-matter is that something previously done or suffered, out of which the claim has arisen,” the claim is co-existent with the subject-matter, and could not have been provided for prior to the existence of the claim.
    The object, and the only object of the section of the constitution under examination, was to prevent the appropriation of money for the payment of claims against the State, that were not provided for by law, without first providing for the subject-matter of the claims by law, unless two-thirds of the members should concur in the payment.
    I therefore claim, that the Morgan-raid claims are not of the class provided for by section 29, but are of the ordinary claims that come within the ordinary power of the legislature to provide for and pay.
    But if they are within that class, they are provided for by a pre-existing law. The act of April 80,1869, was a preexisting law; it was passed by a majority vote, and was therefore valid. The pre-existing law is only required to preexist the payment of the claim, not to pre-exist the cause of the claim. See Debates, vol. ii. p. 569.
    
      F. B. Pond, attorney-general, for defendant:
    1. The demurrer 'admits, as alleged by the answer, that at and prior to the damage to the plaintiff’s property, no law existed or had existed, in Ohio, whereby the State was liable to pay for the damage sustained by the plaintiff at the hands of Morgan and others; or, in other words, no law pre-existed the doing of the damage, which, as I claim, formed the “ subject-matter ” of the alleged claim.
    2. The above being admitted, it follows that to authorize the auditor of State to pay the plaintiff’s claim, there must have been some act constitutionally passed subsequent to the doing of the damage, for the auditor may not draw Ms warrant but by authority of law. (Constitution, art. 2, sec. 22.)
    TMs seems to be admitted by the plaintiff, in his application for this writ, and he seems to rely—
    1. On the act of March 30th, 1864 (O. L., vol. Ixi. p 85). But this act could create no liability against the State, for in section 6, after defining the duties and powers of the commissioners appointed to examine and determine the amount of the damage sustained by different persons, from the raid of John H. Morgan, it defines and clearly limits the object and intention of the general assembly in the following language: “It being the object of this act to have a careful examination of said claims, and to report as to the nature and amount thereof, but to leave the question of the liability of the State open and undetermined for future action.”
    This statute can have no bearing upon this question, only as indicating the class, character and amount of the claims spoken of in the acts of 1869, and can in no way be held to create any liability against the State for the payment of tMs claim.
    '2. The pretended act of April 30th, 1869, is next relied upon as fully allowing said claims, and making the State liable for their payment; or, in other words, as an enabling act authorizing the legislature to make an appropriation for such payment.
    This act, it is clear, makes no appropriation. It simply provides “ that there may be appropriated from any money that may hereafter be in the treasury,” etc. (Constitution, art. 2, sec. 22.)
    The recital in this act seems to carry a mistaken notion that these claims had been allowed under the acts of 1864 and 1868. But this, as is seen above, is not done ; and this act of April 30th, 1869, does not allow said claims.
    Again, this act seems to have been attempted to be passed upon the theory that some enactment was necessary to authorize the legislature to pass an appropriation act, providing for the payment of these claims. 'And this idea arose, I appretend, from an examination of the twenty-ninth section of the second article of the constitution.
    The idea of the general assembly in passing the act of April 30,1869, was that said act might operate to warrant an-appropriation by a succeeding act; or, in other words, that it might operate as the “pre-existing law” spoken of in the above section of the constitution.
    But what must the law pre-éxist by the terms of this section? Literally the subject-matter of the claim; not the claim itself, nor the appropriation for its payment. What is-the meaning of the words “ subject-matter ” ? They seem to-be susceptible of but one construction, and that is the work, labor, damage, expenditure, or other injury or service, out of which the claim originated. If my meaning of the words- “ subject-matter ” is the correct one, then the damage or injury sustained by the plaintiff at the hands of John H. Morgan, is the subject-matter of this claim, and this act of April 30, 1869, did not pre-exist it.
    But it is argued that this clause of the constitution does not apply to this act, because the word “claim,” as there used, imports a legal right in the claimant to recover. Now,. I apprehend this is not the meaning of the word “ claim,” in this country, but that this word applies to any case where a person asserts a right, whether he actually has a right-to recover or not.
    This section of the constitution was intended by it framers* to cover all classes of cases where liability had not been incurred by legislative action; to restrain the legislature from a use of the public money, not provided for by pre-existing law; to guard the treasury in times of political excitement or corruption, from being the subject of unwarranted depletion by a simple majority vote; and it is not to be supposed that the organic law would be more loose in its requirements-where a gratuity is sought to be given, than where actual claims against the State are sought to be paid.
    If the court should hold that the act of April 30, 1869, purports upon its face to “ allow ” said claim within the meaning: of the clause of the constitution above quoted, then I have to*say that this act cannot have that legal effect, because it was not passed by the vote required by the twenty-ninth section •of the constitution above quoted, and for that purpose is not the law of the State.
    The demurrer admits that the house of representatives of the general assembly that pretended to pass this bill, was composed of 105 members, and the senate of 87 members; that of these, but 60 members of the house, and 19 of the .senate, voted in favor of the bill upon its passage. This section of the constitution requires that the allowance should be made, or in other words the bill passed “ by two-thirds of the members elected to each branch of the general assembly.” This would have required 70 votes in the house, and 25 in the senate, to secure its passage. This vote the bill did not get, and it is consequently not a law of the State for the purpose •of allowing these claims.
    8. That portion of the act of May 5, 1869, which applies to this subject, so far as it seeks to allow said claims, or provide for their payment, is subject to the same objection as the act of April 30, 1869, and for the same reasons. In the same general assembly, this act, on its passage, received the votes of but 62 members of the house of representatives, and 19 of the senate. (O. L., vol. lxvi. pp. 106, 107.)
    In Miller & Gibson v. The State (3 Ohio St. 475), Judge Thurman, in giving the opinion of the court, says: “ No bill can become a law without receiving on its passage the number of votes required by the constitution.”
    The legislative journals may be inspected to ascertain the validity of these enactments. Ohio v. Loomis and, Moffitt, 5 Ohio, 363; Constitution, art. 2, secs. 9, 29 ; 3 Ohio St. 475.
    But it is said in argument that this is not a claim within the meaning of said section twenty-nine, but that it is an application for State charity, and that the State is asked not to pay a debt it owes, but to give out of its abundance in the way of a gratuity to a needy citizen, and that in passing the acts above referred to the State has been simply attempting to do this.
    How does this differ in principle from extra compensation spoken of in the section, “ after the service shall have been rendered.”
    In either case there is no liability on the part of the State to pay — in one case because the officer, public agent or contractor had agreed to do the work for a specific sum, and was legally entitled to no more, and the payment of additional money would be charity; and in the other case, because the party was never entitled to any pay whatever, for the State had never agreed to pay him anything before the damage was done. Anything may be called a charity that is paid where there was no legal liability to pay.
    And the framers of the constitution, to my mind, clearly intended by the provisions of this section to prevent the expenditure of the public money in any case where the State had not incurred an absolute liability' to pay, unless such expenditure was sanctioned by the vote of two-thirds of the-members elected to each branch of the general assembly.
   Scott, J.

By the 29th section of the 2d article of the constitution of this State it is declared as follows:

“No extra compensation shall be made to any officer, public agent, or contractor, after the service shall have been rendered or the contract entered intonor shall any money be paid on any claim, the subject-matter of which shall not have been provided for by pre-existing law, unless such compensation or claim be allowed by two-thirds of the members elected to each branch of the general assembly.”

Applying this section of the constitirtion to the present case, two questions arise upon the pleadings. Eirst: Is the claim of the plaintiff, the payment of which is sought to be enforced by this proceeding, one, the subject-matter of which was provided for by pre-existing law? And if not, then,, secondly: Has it been allowed by two-thirds of the members elected to each branch of the general assembly ? If either of these questions can be properly answered in the affirmative, the plaintiff would seem to be entitled to a peremptory writ of mandamus; but if both questions must be answered in the negative, his application must be refused.

The language of the latter part of the section of the constitution which we have quoted seems to be plain and explicit ; leaving little room for interpretation or construction. It clearly prohibits the payment of any money “on any •claim, the subject-matter of which shall not have been provided for by pre-existing law, unless,” etc. We see no reason for interpreting this language in any other sense than that which lies upon the surface, and which the terms used naturally import. In such a sense we may assume that it was understood by the body of the people, through whose votes it became a part of the constitution.

In its ordinary sense, a claim imports the assertion, demand, or challenge, of something as a right, or it means the thing thus demanded or challenged. The word, as here used, is by implication limited to claims against the State, and of a pecuniary character. The inhibition is against the payment of any money on any claim, etc. Claims for the payment of money may be preferred against the State on various grounds. They may be either of a legal or of an equitable character. They may purport to arise under existing laws; or to originate in circumstances which are supposed to cast upon the State a duty, either of perfect or imperfect obligation, to provide for their payment. All such demands against the State for the payment of money, whatever be their character or origin, are, we think, claims within the meaning of the constitution. The prohibition of payment is limited, however, to claims, “the subject-matter of which shall not have been provided for by pre-existing law.” By the subject-matter of a claim, we understand the facts or circumstances out of which the claim arises, or by reason of which the supposed right accrues to the claimant to demand and receive money from the State.

What, then, is the subject-matter of the plaintiff’s claim in this case? His petition fully answers this question. It refers to the act of March 30,1864, passed by the general assembly of this State, “ To provide for the appointment of commissioners to examine claims growing out of the Morgan raid, and prescribing their duties.” He states that he exhibited to the commissioners appointed under said act, a claim against the State for damages occasioned to him by said raid, in the burning of his warehouse and property situated therein, and in the loss of a large quantity of tobacco and other property, taken or destroyed by the rebel forces, at the time of said Morgan raid through Ohio, in 1863. He alleges that his said claim was examined and allowed by said commissioners, to the amount of $4,366, and that its payment has been authorized and provided for by subsequent legislation.

The subject-matter of his claim, then, clearly is the damages occasioned to him by the rebel forces engaged in the Morgan raid through Ohio, in 1863. And the question is, had this subject-matter, that is, these damages thus occasioned, been provided for by pre-existing law? In other words, at and prior to the time when the acts were done which caused these damages, was there a subsisting law which authorized their payment by the State ?

The answer of the defendant avers, and the demurrer of the plaintiff admits, that no such law then existed.

"Were the plaintiff claiming compensation, or payment for property taken by the State for public use, the case would be quite different. The subject-matter of such claims is provided for by pre-existing law, even by the constitution itself, which requires compensation in money to be made in such case, to the owner. It would no doubt be competent for the legislature to provide by law for the payment by the State of damages done to private property by mobs, by insurrectionary violence, or by public enemies. Cases arising under such general laws would not fall within the class of claims against which this section of the constitution was intended to guard, for their subject-matter would then be provided for by preexisting law. But no such general law, providing for the plaintiff’s case, has ever been enacted in this State. The policy here, as well as elsewhere, has always been to make the prompt suppression of violence, and the repulse of the public enemies, a matter of vital interest to the owners of property; and thus insure their earnest co-operation with the government in its efforts for the common defence and public safety. And where the character of a claim is such that sound policy would prohibit the recognition of its justice by previous legislation, there we think the constitution intended to prohibit its payment under subsequent legislation, unless its justice- and merits were such as to secure its allowance by the concurrent votes of two-thirds of the members elected to each, branch of the general assembly.

It is argued by counsel for plaintiff that as the State was-under no obligation to compensate the plaintiff for the destruction of his property, therefore this is not the case of a. claim within the meaning of the constitution. But it would be strange indeed if this constitutional provision was intended to guard the treasury only against claims which the State-would be under obligation to pay, and to provide no safeguards against claims sustained by no such obligations.

We see no room for doubt that the plaintiff’s claim is shown. by the pleadings to be one for which no warrant can legally be drawn upon the treasury, unless its payment has been authorized by two-thirds of the members elected to each-branch of the general assembly. Has this been done 1

The only acts of the legislature which the plaintiff sets xrp,, as an allowance of his claim, are the act of April 30, 1869, “ To provide for the payment of claims for damages growing out of the military expedition of John H. Morgan in the State-of Ohio, a.d. 1863,” and the act of May 5th, 1869, “making appropriations for the year 1869, and the first quarter of' 1870.” By the latter act he claims moneys were appropriated for the payment of the Morgan-raid claims, including, the one which is here set up. The answer of the defendant avers that neither of these acts were voted for by two-thirds-of the members elected to either branch of the general assembly, as appears by the journals of the respective houses; and that plaintiff’s claim has therefore never been allowed by any valid enactment. The plaintiff’s demurrer admits the truth of this averment, provided the journals of the respective houses may be examined for the purpose of ascertaining the state of the vote upon the alleged passage of' a bill. That these journals are the proper evidence as to the-state of tbe vote, on tbe passage of a bill, we entertain no doubt. The 9th section of the 2d article of the constitution requires each house to keep a correct journal of its proceedings, which shall be published; and it also requires that, on the passage of every bill, in either house, the vote shall be taken by yeas and nays, and entered upon the journal; and provides that no law shall be passed in either house, without the concurrence of a majority of all the members elected thereto. This entering of the yeas and nays upon the journal must have been intended to furnish the permanent evidence of the state of the vote so recorded. In Miller & Gibson v. The State, 3 Ohio St. 475, it was said: “No bill can become a law without receiving the number of votes required by the constitution. And if it were found, by an inspection of the legislative journals, that what purports to be a law upon the statute book was not passed by the requisite number of votes, it might possibly be the duty of the courts to treat it as a nullity.” The case then before the court did not require-a decision of the question now made. It was assumed, for the proposes of that case, that the legislative journals were the appropriate evidence on the question whether a bill had been passed by the constitutional number of votes. And were we to hold otherwise, we would in effect hold that a. bill may become a law without receiving the number of votes required by the constitution; that a single presiding officer may by his signature give the force of law to a bill which the journal of the body over which he presides, and which is kept under the supervision of the whole body, shows, not to have been voted for by the constitutional number of members. The plain provisions of the constitution are not to be thus nullified, and the evidence which it requires to be kept under the supervision of the collective body, must control, when a question arises as to the due passage of a bill.

Mandamus refused.

Beinkeehofe, C.J., and Welch, White, and Day, JJ., concurred.  