Lack of Enabling Clause

[Akira]

I finally managed to get a hold of Joiner v. Georgia 223 Ga. 367, 155 S.E.2d 8
which has some awesum quotes about the ineffectiveness of statutes that lack an enacting or enabling clause.

Here are the highlights:

On March 30, 1967 the Governor approved what is termed the 'Appellate Practice Act of 1965 Amended. No. 114 (House Bill No. 157).' Section 3 thereof states, in part, 'An appeal shall not be dismissed nor consideration thereof refused because of failure of the court reporter to file the transcript of evidence and proceedings within the time allowed by law or order of court, unless it affirmatively appears from the record that such failure was caused by the appellant.' This purported amendment contains no enacting clause and the question arises whether this omission invalidates this purported amendment so that the Appellate Practice Act of 1965 as previously amended remains unchanged by it.

A study of this question reveals that, 'All written laws, in all times and in all countries, whether in the form of decrees issued by absolute monarchs, or statutes enacted by king and council, or by a representative body, have, as a rule, expressed upon their face the authority by which they were promulgated or enacted. The almost unbroken custom of centuries has been to preface laws with a statement in some form declaring the enacting authority.' **10 Sjoberg v. Security Sav. Etc. Assn., 73 Minn. 203 75 N.W. 1116, 72 Am.St.Rep. 616); 50 Am.Jur. 132, s 153.

It is interesting to note that the use of an enacting clause first appeared in the Acts of Parliament in *369 1433 and from the year 1445 it has continued to be a regular part of English statutes. Holdsworth, 'A History of English Law' (1909), Vol. II, p. 366.

'The enacting clause is that portion of a statute which gives it jurisdictional identity and constitutional authenticity. The form is almost completeby standardized beginning with, 'Be it enacted by,' and concluding with an identification of the legislative body from which the act emanates. The constitutions of forty-four (now 46) states specify the form of the enacting clause. Only the constitutions of Delaware, Georgia, Pennsylvania, and Virginia, as well as the Constitution of the United States, are silent on the point. * * * (and) Congress, by statute (Act of Feb. 25, 1871, c. 71, 16 Stat. 431, 1 U.S.C.A. s 21) has provided a specific form of enacting clause.' Sutherland on Statutory Construction (3rd Ed. 1943), Vol. 1, p. 315, s 1801.

'The purpose of an enacting clause is to establish the act; to give it permanence, uniformity and certainty; to afford evidence of its legislative, statutory nature, and to secure uniformity of identification, and thus prevent inadvertence, possible mistake, and fraud.' 82 C.J.S. Statutes s 65c(2), p. 104. See Coley v. Henry, 42 Ga. 61

Although though it might be argued that an enacting clause is a mere matter of form, a relic of antiquity, and serves no useful purpose, we think it is essential for the reasons just cited. Traditionally, the General Assembly of Georgia has used an enacting clause.

The necessity for an acting clause in an Act of the General Assembly has never been decided directly by this court but in Walden v. Town of Whigham, 120 Ga. 646, 647, 48 S.E. 159, the court refused to give effect to a purported charter amendment of that town because the amendatory measure contained no enacting clause whatever and consisted merely of the caption of the act and a repealing clause. This case was later distinguished in Fowler v. Stone, 149 Ga. 125, 99 S.E. 291, because the Act there involved was held to contain an enacting clause.

Accordingly, we hold that the 'Appellate Practice Act of 1965 Amended. No. 114 (House Bill No. 157).' is a nullity and of no force and effect as law.

This is a major cite, and destroys most of the statutes passed 'as law' in the fifty states.

Make a point to include the definition of 'comity' in your brief, or have a copy to quote in court.

COMITY. Courtesy; a disposition to accomodate.

2. Courts of justice in one state will, out of comity, enforce the laws of another state, when by such enforcement they will not violate their laws or inflict. an injury on some one of their own citizens; as, for example, the discharge of a debtor under the insolvent laws of one state, will be respected in another state, where there is a reciprocity in this respect.


These next two links are MUST HAVES !

Check out "What makes a law valid" for some killer cites about the enabling clause, Subject Matter Jurisdiction, and more here.

You should also grab a copy of the 'Manual of Legislative Drafting' in .pdf here or read the html version here.

For HIS Glory,
Akira

Thanks Akira. This is some really great stuff.

-squirrels

[Shoonra]

I am not sure but I think you mean to say "enacting clause" rather than "enabling clause".

The courts (such as the Joiner case, which has never been cited by a court decision outside the state of Georgia) have held that a statute, an Act of the Legislature (or, in federal law, an Act of Congress) must have an enacting clause (in resolutions, a resolving clause) --- but that clause needs to appear ONLY in the signed original of the Act that is kept in the State Archives. It doesn't matter whether a printed edition of the statutes repeats that bit of boiler plate. In most (maybe all) legislatures special paper is provided for drafting bills and the paper has printed as a kind of letterhead the requisite enacting clause, just to make sure.

[Livefire]

The MI constitution clearly states in Article 23......The style of the laws shall be, The People of the State of Michigan enact.

wrong shonra, the courts said the enacting clause must be on the face of the STATUTE, not the bill from the legislature. there is a difference. see, the reason why is because, states cannot enact laws against the constitution and since all statutes are statute staples(contracts where they gave you no consideration), they are void contracts, not law, thus, they cannot put enacting clauses on void laws or rules. so, the trick is to put the enacting clause on let say house bill 100. the state of georgia hereby enacts house bill 100. now, they take that bill and use it as a basis to set up a unilateral contract ( lets say house bill 100 becomes o.c.g.a 40-9-1), they make a statute BASED on the bill, but they are two different animals. they cannot commit open treason and pass statutes into law, they must pass laws, they know this, so, they go on our ignorance to the fact that we dont have to obey statutes. in the meantime, they dont enforce house bill 100 because house bill 100 is the unconstitutional bill they base the statute on. Now, anybody that wants to fight this fight has to get a common law remedy because this is outside of acceptance for value, etc. i witnessed this in action, i had a friend help 10 people get traffic cases dismissed in georgia based on the lack of the enacting clause. he caught the county off guard and they had to regroup.

[Shoonra]

The original statute is the document that passed both chambers and then signed by the Governor (or, in federal law, the President). That original must have the enacting clause. In the federal govt, these originals are kept by the National Archives (used to be kept by the State Dept), in many states there are state archives for that purpose.

If the required enacting clause appears on the one original kept in the archives, it doesn't matter if the printed editions omit it.

the bill is different than the statute.

[Shoonra]

The bill is different than the statute.

If you were familiar with Acts of Congress, you would know that the bill, as amended, is the document actually signed by the Speaker of the House and the President of the Senate when it passes each chamber and then signed by the President of the US. It still has its original bill number. Once it is signed by the Prez, it is a statute and while the signed bill goes into the National Archives, the text gets printed as a statute with a Public Law number assigned to it (and whereas the bill that was signed began with "A Bill to ..." accomplish something, the printed statute begins "An Act to ..."). It is sufficient if the enacting clause and the other boilerplate is on the bill signed by the President and kept in the Archives, that boilerplate might be skipped in the printed statutes.

I would expect that the omission of an enacting clause is very rarely made nowadays, so I wonder why this particular technicality is getting so much emphasis.

[Akira]

Originally Posted by Shoonra

I am not sure but I think you mean to say "enacting clause" rather than "enabling clause".

http://dictionary.law.com/definition2.asp?selected=624&bold=||||

enabling clause n. a provision in a new statute which empowers a particular public official (Governor, State Treasurer) to put it into effect, including making expenditures.


Wisconsin Senate Rules
Chapter 4:
BILLS, RESOLUTIONS, ETC. - PROCEDURE

Senate Rule 31. Clerical corrections to bills. (1) Minor clerical errors in any bill or resolution, such as errors in orthography or grammar, or the use of one word for another as "affect" for "effect", wrong numberings or references, whether such errors occur in the original bill or in any amendment thereto, shall be corrected by the chief clerk.

(2) The chief clerk shall insert the enacting or usual enabling clause in any bill before its passage if the same shall have been omitted. When necessary, the chief clerk shall correct the title of any bill so that the title will show the sections affected, the subject to which the bill relates, and the making of an appropriation, if such is made by the bill.



For HIS Glory,
Akira

[PANICPASS]

Originally Posted by Shoonra

If the required enacting clause appears on the one original kept in the archives, it doesn't matter if the printed editions omit it.

Who told you that?

Again, I urge you to read the book Authority of Law.


Since the constitution requires "all laws" to have an enacting clause, it makes it a requirement on published laws as well as on bills in the legislature.

That published laws are to have an anacting clause is made clear by the statement commonly used by legal authorities that an enacting clause of a law is to be "on its face." To be on its face means to be in the same plain of view.

"Face has been defined as the surface of anything, especially the front, upper, or outer part or surface; that which particularly offers itself to the view of the spectator." Cunningham v. Grate Southern Life Ins. Co.

For the enacting clause to be of any use it must appear with a law, that is on its face, so that all who look at the law know that it came from the legislative authority designated by the Constitution. The enacting clause would not serve its intended purpose if not printed in the statute book on the face of the law.