Atchison, T. & S. F. Ry. Co. v. State

• Decision Date: 24 January 1911
• Citation: 113 P. 921,28 Okla. 94,1911 OK 61
• Parties: ATCHISON, T. & S. F. RY. CO. v. STATE.
• Court: Oklahoma Supreme Court

113 P. 921

28 Okla. 94, 1911 OK 61

ATCHISON, T. & S. F. RY. CO. v. STATE.

Supreme Court of Oklahoma

January 24, 1911

Syllabus by the Court.

When an enrolled bill has been signed by the Speaker of the House and by the President of the Senate, respectively, in the presence of those bodies immediately after the bill has been read publicly at length, and the same has been approved by the Governor and deposited in the office of the Secretary of State, it is not competent to show from the journals of the House that the act so authenticated, approved, and deposited did not pass in the form in which it was signed by the presiding officers and approved by the Governor.

That portion of section 2, art. 7, c. 38, Sess. Laws 1909, being part of an act entitled, "An act for raising and collecting revenues," approved March 10, 1909, which levies annually one-fourth of one mill ad valorem tax for common school purposes, does not violate section 20, art. 10 of the Constitution.

Error from District Court, Logan County; A. H. Huston, Judge.

Submission of controversy between the Atchison, Topeka & Santa Fé Railway Company and the State. There was a judgment for the state, and the railway company brings error. Affirmed.

Cottingham & Bledsoe, for plaintiff in error.

Charles West, Atty. Gen., and C.J. Davenport, for the State.

HAYES J.

For convenience, plaintiff in error will be referred to as the railway company and defendant in error as the state.

This cause arose in the district court of Logan county upon a submitted controversy in lieu of an action. The railway company seeks to prevent the state from collecting a tax levied against its property for common school purposes under a provision of an act of the Legislature approved March 10 1909. Sess. Laws 1909, p. 600. Section 2, art. 7, of that act provides in part as follows: "There is hereby levied annually an ad valorem tax upon all property in this state which may be subject to taxation upon such basis, a tax sufficient in addition to the income from all other sources to pay the expenses of the state government for each fiscal year ending on the thirtieth day of June, *** including one-fourth of one mill for common school purposes to be levied, collected and distributed as other school money. ***" (Italics are ours.)

The judgment of the trial court was in favor of the state. The facts agreed upon in the submitted controversy present for determination the following three questions: First. Did the act as passed by the Legislature include the foregoing italicized provision? Second. Will the courts look beyond the enrolled bill signed by the presiding officers of the two houses of the Legislature, and approved by the Governor, to determine whether such bill was in fact passed by the Legislature? Third. Does said provision of the act violate section 20 of article 10 of the Constitution? The first and second of these questions will be considered together.

The railway company contends that said act (for convenience hereinafter referred to as House Bill No. 168), when adopted by the Legislature, did not contain the provision authorizing the levy for common school purposes; that that provision never received the sanction of the members of the Legislature; and that such facts are disclosed by the journals of the House and Senate. Whether a court can look to the journals of either branch of the Legislature, or of both to impeach the enrolled bill in determining whether or not it was passed in conformity with constitutional provisions, and in determining whether all the provisions contained in the enrolled bill signed by the presiding officers of the two branches of the Legislature and approved by the Governor were contained in the bill as adopted by the Legislature, is a question upon which the decided cases from the various states of the Union are in hopeless conflict, and there are many cases supporting respectively the affirmative and negative of the proposition. Among those cases holding that the journal may be looked to for the purpose of impeaching the enrolled bill are the following: Jones v. Hutchinson, 43 Ala. 721; Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; Burr & Co. v. Ross & Leitch, 19 Ark. 250; Vinsant v. Knox, 27 Ark. 266; Webster v. City of Little Rock, 44 Ark. 536; State v. Brown, 20 Fla. 407; State ex rel. Boyd et al. v. Deal, 24 Fla. 293, 4 So. 899, 12 Am. St. Rep. 204; Butler v. State, 89 Ga. 821, 15 S.E. 763; Spangler v. Jacoby, 14 Ill. 297, 58 Am. Dec. 571; People ex rel. Barnes v. Starne, 35 Ill. 121, 85 Am. Dec. 348; Cohn v. Kingsley, 5 Idaho, 416, 49 P. 985, 38 L. R. A. 74; Koehler & Lange v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609; State v. Andrews, 64 Kan. 474, 67 P. 870; State ex rel. v. Robertson, 41 Kan. 200, 21 P. 382; State ex rel. v. Francis, 26 Kan. 724; Haynes v. Heller, 12 Kan. 382; Mynning v. Detroit, Lansing & Northern R. Co., 59 Mich. 257, 26 N.W. 514; People v. McElroy, 72 Mich. 446, 40 N.W. 750, 2 L. R. A. 609; Board of Supervisors v. Heenan, 2 Minn. 330 (Gil. 281); State v. City of Hastings, 24 Minn. 78; Miesen v. Canfield, 64 Minn. 513, 67 N.W. 632; Hull v. Miller, 4 Neb. 503; State v. McClelland, 18 Neb. 236, 25 N.W. 77, 53 Am. Rep. 814; State ex rel. Casper v. Moore, 37 Neb. 13, 55 N.W. 299; State ex rel. Wahoo Waterworks Co. v. City of Wahoo et al., 62 Neb. 40, 86 N.W. 923; Opinion of Justices, 35 N.H. 579; Opinion of Justices, 52 N.H. 622; State, etc., v. Moffitt, 5 Ohio, 359; Fordyce v. Godman, 20 Ohio St. 1; Mumford v. Sewall, 11 Or. 67, 4 P. 585, 50 Am. Rep. 462; State v. Rogers, 22 Or. 349, 30 P. 74; State v. McConnell, 3 Lea (Tenn.) 332; Gaines v. Horrigan, 4 Lea (Tenn.) 608; Brewer v. Huntingdon, 86 Tenn. 732, 9 S.W. 166; Ritchie v. Richards et al., 14 Utah, 345, 47 P. 670; Wise v. Bigger et al., 79 Va. 269; Meracle v. Down, 64 Wis. 323, 25 N.W. 412; Brown v. Nash, 1 Wyo. 85; Osburn et al. v. Staley, 5 W. Va. 85, 13 Am. Rep. 640.

At common law the rule prevailed that the enrolled bill is conclusive and may not be impeached by resort to the legislative journals. Rex v. Arundel, 80 Eng. Rep. (full reprint) 258; Edinburgh Ry. Co. v. Wauchope, 8 Cl. & F. 710; Lon. & Can. L. & A. Co. v. R. M. of Morris, 7 Manitoba, 128. And the same rule is adopted in the following state cases: Graves v. Alsap, 1 Ariz. 274, 25 P. 836; Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93; People v. Burt, 43 Cal. 560; Eld v. Gorham, 20 Conn. 8; State et al. v. Savings Bank, 79 Conn. 141, 64 A. 5; Territory v. O'Connor, 5 Dak. 397, 41 N.W. 746, 3 L. R. A. 355; State ex rel. McVey v. Burris, 4 Pennewill (Del.) 3, 49 A. 930; Evans v. Browne, 30 Ind. 514, 95 Am. Dec. 710; State v. Boice, 140 Ind. 506, 39 N.E. 64, 40 N.E. 113; Lewis v. State, 148 Ind. 346, 47 N.E. 675; Lafferty v. Huffman, 99 Ky. 80, 35 S.W. 123, 32 L. R. A. 203; Owensboro & Nashville Ry. Co. v. Barclay's Adm'r, 102 Ky. 16, 43 S.W. 177; Norman v. Kentucky Board of Managers, 93 Ky. 537, 20 S.W. 901, 18 L. R. A. 556; Louisiana State Lottery Co. v. Richoux, 23 La. Ann. 743, 8 Am. Rep. 602; Weeks v. Smith et al., 81 Me. 538, 18 A. 325; Green v. Weller et al., 32 Miss. 650; Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825; Pacific R. R. v. Governor, 23 Mo. 363, 66 Am. Dec. 673; State v. Swift, 10 Nev. 186, 21 Am. Rep. 721; State v. Howell, 26 Nev. 93, 64 P. 466; Pangborn et al. v. Young, 32 N. J. Law, 29; Ewing v. Trenton, 57 N. J. Law, 318, 31 A. 223; People v. Devlin, 33 N.Y. 269, 88 Am. Dec. 377; People v. Marlborough Highway Com'rs, 54 N.Y. 276, 13 Am. Rep. 581; Brodnax et al. v. Groom et al., 64 N.C. 244; Power v. Kitching, 10 N.D. 254, 86 N.W. 737, 88 Am. St. Rep. 691; Speer v. Plank Road Co., 22 Pa. 376; Commonwealth v. Martin, 107 Pa. 185; State ex rel. Hoover v. Chester, 39 S.C. 307, 17 S.E. 752; Narregang v. Brown County et al., 14 S.D. 357, 85 N.W. 602; State ex rel. Lavin et al. v. Bacon et al., 14 S.D. 394, 85 N.W. 605; Central Ry. Co. v. Hearne, 32 Tex. 547; Williams v. Taylor, 83 Tex. 667, 19 S.W. 156; Ewing v. Duncan, 81 Tex. 230, 16 S.W. 1000; In re Welman, 20 Vt. 653, F. Cas. No. 17,407; State ex rel. Reed v. Jones, 6 Wash. 452, 34 P. 201, 23 L. R. A. 340.

We have not cited above all the cases that support either of the rules, but have attempted to give only a sufficient number to indicate the extent to which both rules are supported by respectable authority. It has been asserted by some of the text-writers, as well as by some courts in the decided cases that the weight of authority, numerically speaking, supports the rule that, where the journal contains matters affirmatively impeaching the enrolled bill, it must prevail. Black on Interpretation of Laws, p. 225. A similar declaration is found in the first edition of Sutherland on Statutory Construction. However correct these statements may have been at the time they were written, it must now be doubted whether they speak correctly the condition of the authorities upon this question at this time; and in the last edition of Sutherland on Statutory Construction, at page 72, it is said: "It is no longer true that 'in a large majority of the states' the courts have held that the enrolled act may be impeached by a resort to the journals. A comparison will show that the courts are now about equally divided on the question. The current of judicial decision in the last ten years has been strongly against the right of the courts to go back of the enrolled act. Undoubtedly, the decision of the Supreme Court of the United States in Field v. Clark [143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294] has had much to do in creating and augmenting this current, but it may also be due to the greater simplicity, certainty, and reasonableness of the doctrine, which holds the enrolled act to be conclusive. Many courts and judges, while feeling compelled to follow...