
    In the Matter of the Transfer Tax upon the Estate of Joseph Stickney, Deceased. Carolyn Foster Stickney and Others, as Executors, etc., of Joseph Stickney, Deceased, and Carolyn Foster Stickney, in Her Individual Capacity and as Widow and Devisee, Appellant; Otto Kelsey, as Comptroller of the State of New York, Respondent.
    First Department,
    December 30, 1905.
    Transfer Tax Law constitutional — presence of three-fifths of Legislature necessary — certificates of presiding officers of Legislature not conclusive evidence of number present — journals conclusive evidence thereof. . •
    The amendment of .1903 to the Transfer Tax Law is a tax law, and .under section ' 25 of article 3 of the State Constitution a majority voté in the presence of. three-fifths of the members elected fco'lhe Legislature u;as required for its passage,
    
      The presiding officers of the Senate and Assembly, who are required by section 40 of the Legislative Law to append to a bill passed by either house a certificate stating the number of members present at its passage, etc., which certificate shall be conclusive evidence thereof, have no power, after the adjournment of said houses, to file amended certificates correcting errors in the original certificate, and such amended certificates are not evidence that the required number of members were present' at the passage of a tax law..
    But, as Section 11 of article 3 of the State Constitution requires that each house shall keep a journal, and as section 25 of article 3 of said Constitution requires that on a vote on tax measures three-fifths of all members elected to either house shall be necessary to a quorum and that the vote be entered on the minutes, such minutes are the original and conclusive evidence of the facts, and resort may be had thereto for proof to supplement defective or insufficient certificate of the presiding officer to sustain a statute, although the'certificates filed, by the presiding officers of the said houses do not show that the required three-fifths were present.
    Appeal by Carolyn Foster Stickney and others, as executors, etc., of Joseph Stickney, deceased, and Carolyn Foster Stickney, in her individual capacity and as widow and devisee, from an order of the Surrogate’s Court of the county of Few York, entered in said Surrogate’s Court on the 7th day of July, 1905, affirming, an order theretofore entered in said Surrogate’s Court fixing a tax on the real property of said decedent.
    
      Edward Mitchell, for the appellants.
    
      George M. Judd, for the respondent.
   Laughlin, J.:

The tax purports to be authorized by chapter 41 of the Laws of 1903, and it has been imposed pursuant to the provisions thereof. The question, presented by the appeal is whether that statute can be given any force or. effect as a tax measure; and since it has no other effect the practical, question is whether it ever became a law. There is no doubt that it was competent for the Legislature to enact the statute. The validity of the statute is questioned, on constitutional grounds,, but not for want of power on the part of the Legislature to enact it. ' It was a tax measure for it purported to impo'se a tax upon certain transfers of property by will and under the intestacy laws. The learned counsel for the appellants insists that it .required a majority vote in each house in the presence of three-fifths of all the members elected thereto as the. constitutional quorum for such legislation.. (Const, art, 3, § 25.) The learned counsel for the Comptroller, however,■ draws attention to the 'fact that- . the preceding section 24 of article 3 of the State Constitution^ which provides that “every law which imposes, continues or revives a tax shall distinctly state the tax and the object to which it is to be applied, and it shall not be sufficient to refer to any Other law to fix such tax of object,” has been held inapplicable to the transfer tax, so called, and has been construed as- applying only to the general taxes annually imposed. (Matter of McPherson, 104 N. Y. 306.) The' phraseology, “which imposes, continues or revives a tax,” is the same in'the succeeding section 25 which prescribes the vote and quorum. I. think that the controlling point in that case was the difficulty of stating in every special tax law_ the purpose to which the tax is to. be.applied and especially in transfer tax legislation, so called, which was designed to operate continuously, thus becoming a permanent tax measure. There is n‘o difficulty in con- . forming with the requirements of said section 25 in the enactment i ,of every tax law sjiecial as well as general; and consequently the reason that appears to have been controlling in Matter of McPherson does not exist for declaring,it inapplicable to tax laws .special in their nature as distinguished from the annual tax laws which,’ in addition ■to authorizing the annual tax-levy, contain an appropriation of the funds. I am, therefore, disinclined to regard that casé as decisive 'of - the, question now nnder consideration. The so-called Collateral ■ Inheritance or Transfer Tax Law is a tax law pure and simple, and . there being no insuperable obstacle to complying with the provisions of. said, section 25 in its enactment or in the enactment of amendments thereto, I see no reason for exempting, such laws from its operation. ■

The precise claim of the. appellants is that the .constitutional three-' fifths quorum was not present in either house when the amendment of 1903 was. passed. '■ This stand is not taken upon the facts, but it is contended- that the condition of the statutory la,w with respect to .the certification and publication of bills is such that Upon the certificates originally attached to this- bill by the presiding officer of the . Senate and Assembly,- respectively, a conclusive presumption arises that three-fifths of the members elected to each house was not present when the bill was - passed. The bill, as printed in the Session Laws, shows, after the title of the bill, the following: “ Became a law March 16, 1903, with the approval of the Governor. Passed, a majority being present.” Section 44 of the Legislative Law (Laws of 1892, chap. 682, as amd. by Laws of 1894, chap. 53) provides, among other tilings, that the Secretary of State in the publication of every law shall omit the certificate of the presiding officer of the respective houses attached thereto and shall add to the statute, immediately under the title thereof, a statement that it became a law on a specified date with or without the approval of the Governor, or, notwithstanding his objections, as the. case may be, and adding the words “passed by'a two-thirds vote,” “passed, three-fifths being jn-esent,” or “passed, a majority being present,” in accordance with the certificates appended to the original bill. This section further provides that “such statement shall be presumptive evidence that the original law was certified by the presiding officer of each house accordingly.” It is, of course, competent for the Legislature to enact rules of evidence, and such is the statutory provision last quoted. The statute,- therefore, as printed in the Session Laws only showed a majority present when it was passed which, I think, would be insufficient. But inasmuch as the statement printed in the Session Laws is only presumptive evidence as to what is shown by the certificates of the respective presiding officers appended to the original bill, recourse must next be had to the certificates themselves. The body of the original certificate appended to the original bill certified by the presiding officer of the Senate is as follows: “ This bill was duly passed, a majority of all the Senators elected voting in favor thereof,” and the original certificate of the presiding officer of the Assembly is in the same form, except that “ members ” appears in place of “Senators” and the words “to the Assembly” appear in addition. On the 30th day of June, 1904, amended certificates made on the 25th day of June, 1904, by the presiding officer of the Senate for the .year 1903, and by the presiding officer of the Assembly for 1903, on the 30th day of June, 1904, under-date of the original certificates and in the same form, but with the words “three-fifths being present” added 'thereto and accompanied by the affidavit of each of said presiding officers setting forth a transcript of the journal of the proceedings of each house on the passage of the bill, showing that the vote was taken and recorded by the yeas and nays, and that inore than three-fifths of the members elected to each house were present and more than a majority voted in favor thereof, were filed with the Secretary of State and attached to the original bill. If the original certificates had been in the form of the amended certificates they would be sufficient and there would be no doubt as to the validity of the statute. It is claimed that the respective presiding officers became functus officio and that their certificates, are nullities. The Assembly, of course, is not a continuous body. It expires with the legislative year. Not so, however, with the Senate. Its official life is two years and the Senate for the years 1903 and 1904 was the same body. It organized at the outset for two years. Its committees' and officers, including the presiding officer, remained the same and acted by the original authority throughout. The presiding officer of the Senate, therefore, was not functus officio on the theory that he had gone out of office. The presiding officer of the Assembly happened to be the' same for both years, but he was selected annually and acted each year by separate authority. In 1904, therefore, when he assumed to act for the Assembly of 1903, that body had expired, and With it at the close of the year 1903 terminated his authority to represent it.. The courts have at times by mandamus required officers and boards or bodies who.se official terms had expired, or their successors, to perform an omitted ministerial duty of great public importance. In those cases, however, there, is first an adjudication as to the omitted duty and a judicial direction as to what is to be performed. It should not be within the power of the presiding officer of the Senate or Assembly to nullify the will of the Legislature by omitting to append the requisite certificate to a bill or by appending one that is -erroneous; but whether public policy requires that this must he discovered and corrected before the bill goes to the Governor or to the Secretary of State, or whether thereafter performance of the omitted duty may be compelled by the courts, need not now be decided. It was contended in the court below that the amended certificates were valid and that they cured the defect. The learned counsel for the respondent appears to have- abandoned that position on 'the appeal. With the evidence in the record, however, the question arises and must be decided, for its decision will determine whether it is necessary to consider the other questions that become material only in the event that the amended certificates are declared to be ineffectual. On a question of such great importance and grave consequences, judicial opinions should be confined to_ a decision on the facts presented. If either amended certificate be a nullity, it is the same as if neither had been made. We regard i t as quite clear that the S peaker of the Assembly for 1903 could not in June, 1904, of his own motion, call at the office of the Secretary of State and make any substitution, alteration or addition to his original• certificate attached to the original bill that would give the bill vitality. If the bill had no force or effect as a law for more than a year after its passage, when on its face it purported to take effect immediately, the proposition that it could not thus be given life is too plain for argument. Obviously the consequences of a contrary ruling would be disastrous. There would then be no certainty even as to the statutory law. The presiding officer of either body, after the adjournment of the Legislature and even after the body which enacted the law ceased fo exist, could call at the office of the Secretary of State and so alter his certificate that that which was law before would be law no longer, and that which was not law would be infused with life. It is manifest, therefore, that the amended certificates must be disregarded.

The original certificates to which we are confined, like the certificate of the Secretary of State printed in the Session Laws, fail to show, as has been seen, that the constitutional three-fifths quorum was present in eabli house when the bill was passed, and it must fail unless recourse may be had to the journals of the respective houses. Section 40 of the Legislative Law (as amd. by Laws of 1894, chap. 53) 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 hill or resolution, a certificate of the date of its passage by the votes of a majority of all the members elected 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 may be. Ho bills shall be deemed to have so passed unless certified by the presiding officer, which certificate to such effect.shall be conclusive evidence thereof.” ' ' . • "

The, learned qouñsel for the appellant contends that the Legislature, acting within its province to prescribe rules of evidence, has, b)r this statute, prescribed a concl/usive• rule of evidence'for determining whether a bill has.been passed by.the requisite vote and with the requisite quorum present; Literally construed, this statute 'provides that nó bill requiring the presence of three-fifths of the members elected'to each house shall he deemed to have passed in the presence of such quorum! unless the presiding officer appends a - certificate thereto to that effect and if. he does so certify that shall be conclusive, even though it he untrue either through mistake or design. There is a Conflict in judicial decisions, leaving the law in a doubtful and Unsettled state as to whether and when resort may be had to the journals, of the respective houses to show by what vote a bill was passed and the number of members present. I think this is largely owing to a failure to distinguish between the power of the Legislature to enact rules of evidence in general, where it is unrestricted by the Constitution,, and its power to enact rules of evidence with respect to the proving the enactment .of statutes where the Com , stitution itself prescribes how the vote shall be taken, how the number of members present shall be shoWn,'and how the récord thereof shall be made and preserved. Section 11 of.árticle 3 of the; State Constitution requires that each house shall keep a journal of-its meetings. Section 25 of article 3 of the State Constitution provides' that: “ On the, final passage, in either house of the Legislature,' of any act which 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, the question shall he taken by yeas and nays, which shall be duly entered upon the journals,, and three^ fifths of all the members elected to either, house shall, in all. such cases, be necessary to constitute a quorum therein.” There is much force in the contention that these constitutional provisions constitute the journals tlie original evidence of . the vote and quorum-present on the passage of bills and were designed to afford’ -definite and conclusive evidence of those facts. (Cooley Const. .Lim. .[Tth ed,] 201.)- The journals are kept under the direction of the"respective legislative bodies and are scrutinized, corrected and approved after being written out. It is of course competent for the Legislature to provide secondary evidence of what these journals show as to the vote and quorum, and it would be quite inconvenient, and might endanger the permanency of the records, to be obliged in all cases to have recourse to the original journals. I know of no authority found in the Constitution or elsewhere by which it is competent for the Legislature this year to prescribe that the will of the people, manifested through their chosen senators and members of assembly next year and recorded and authenticated as provided by the Constitution for the enactment of a valid law, may be thwarted because, forsooth, the Legislature this year has assumed to enact as a rule of evidence that if the respective presiding officers shall fail to certify the passage of the bill correctly it shall not become a law. It seems to me this is tantamount to holding that the Legislature, itself the creature of the Constitution, is superior to its creator and may add to the constitutional requirements as to what is essential to the enactment of a particular law. If section 40 of the Legislative Law (as amd. supra) be valid, the law-making power has been transferred to the presiding officers of the Senate and Assembly, and if they should certify erroneously that a bill had passed which in fact had failed of passage or should fail to certify to the' passage of a bill’passed by the requisite vote and with a quorum present, the bill which did not pass would become a "valid law and the bill which did would not. I am of opinion that the law ought to be and is that if a bill be’ passed by the" essential constitutional vote and in the presence of the requisite constitutional quorum and these facts be duly recorded in the journals of the respective houses as required by the Constitution and the bill subsequently receives the executive approval or the constitutional-equivalent or substitute therefor, it becomes-a law regardless of whether the respective presiding officers have performed their duties with respect to certification enjoined on them by the Legislature. The Constitution recognizes only the Assembly, Senate and Governor as the law-making power and it does not vest the presiding officer of either body with any authority to defeat the legislative will. I am aware that there are judicial decisions entitled to great weight holding that on grounds of public policy it is better that the due passage of a law Should be determined by an exainination of the certificates attached: ■ thereto rather. than by consulting the journals of the legislative bodies, and as it is not necessary to decide the question now, it will be left open. It was entirely competent for the Legislature to make those certificates presumptive evidence of the facts, and to declare that presumptively a bill should not be deemed passed'by the necessary. vote and with the necessary qudrüm present unless so certified; but in bo far as it attempted to make the certificate conclusive evidence on those points, I think it exceeded its authority. It is, perhaps, unnecessary to lay down ¿ven -this broad doctrine in the case at bar. Some of the authorities are to the effect that the journals may be resorted to, not for the purpose of impeaching, but to supplement the certificates of the presiding dfficers where they are defee- . tive. Under a literal reading of section 40 of the Legislative Law (as amd. supra), which is in the disjunctive, it would not seem- necessary that the certificates should show that a majority voted for the bill, but-only that it passed with three-fifths present, yet doubtless they should show both facts. -Ikhas been held in analogous cases that where the certificates do not show all, the essential facts they are . defective, and that the omission therein of the requisite vote or quorum may b.e’supplied by the journals, notwithstanding the fact that the statute expressly provides that in the. absence.from the certificate of the essential requirement to the valid enactment of the ■ bill it shall be deemed not to have been passed by the requisite vote or quorum. (Rumsey v. N. Y. & N. E. R. R. Co., 130 N. Y. 88 ; Matter of New York & Long Island Bridge Co., 148 id. 540 ; People ex rel. Scott v. Supervisors of Chenango, 8 id. 317 ; Purdy v. People, 4 Hill, 384.) In People ex rel. Purdy v. Comrs. of Highways (54 N. Y. 276) the constitutional provisions as to the -journals of tlie respective houses or th,eir effect as evidence do not 'seem to have -been considered, and. the decision therein-is inconsistent with the later opinions of the- same court. According to the doctrine of those cases, therefore, section 40 of the Legislative Law (as amd. supra), in so far as it declares that a bill . shall not be deenjed to have passed by the requisite vote, or in the-presence of the necessary quorum, is: not in any‘event to be deemed- ■ conclusive as to essential facts not expressly certified. By analogous; reasoning, -a certification of the fact that a -majority voted for a bill is not conclusive that three-fifths were not present, and the fact may be shown by the journals. In the case at bar the journals of the Senate and Assembly show that this bill was duly passed By more than a majority, vote and in the presence of more than three-fifths of all the members elected to each house. I am, therefore, of opinion that the statute was duly enacted and is valid.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

O’Brien, P. J., Patterson, ■ Ingraham and Clarke, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
       Amdg. Tax Law (Laws of 1896,. chap. 908), § 221.— [Rep.
     