Boyd v. Olcott

• Decision Date: 13 December 1921
• Parties: BOYD v. OLCOTT, Governor, et al.
• Court: Oregon Supreme Court

202 P. 431

102 Or. 327

BOYD v. OLCOTT, Governor, et al.

Supreme Court of Oregon

December 13, 1921

In Banc.

Appeal from Circuit Court, Multnomah County; Geo. W. Stapleton Judge.

Suit by Thomas Henry Boyd against Ben W. Olcott, Governor, and others, constituting the Oregon State Tax Commission, and Ben W. Olcott, Governor, and others, constituting the World War Veterans' State Aid Commission. Decree for defendants and plaintiff appeals. Affirmed.

The purpose of this suit is to test the validity of an amendment to our state Constitution designated as article 11-c, and to determine the constitutionality of a statute known as chapter 201, Laws 1921. The circuit court decided that the amendment was valid and that the statute was constitutional. The plaintiff appealed.

The questions submitted for decision make it appropriate that the history of article 11-c and of chapter 201, Laws 1921, be given. The history of article 11-c begins with a resolution known as House Joint Resolution No. 12, introduced in the House of Representatives at the Thirty-First regular session of the Legislative Assembly which convened on January 10 1921, and adjourned sine die on February 23, 1921, and the story of chapter 201 commences with the introduction of a bill known as House Bill No. 203 in the House of Representatives at the same session of the Legislature.

The Constitution (article 17, § 1) provides that--

"Any amendment or amendments to this Constitution may be proposed in either branch of the Legislative Assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for their approval or rejection, at the next regular general election, except when the Legislative Assembly shall order a special election for that purpose. If a majority of the electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendment or amendments, severally, whether proposed by the Legislative Assembly or by initiative petition, shall be canvassed by the secretary of state in the presence of the Governor, and if it shall appear to the Governor that the majority of the votes cast at said election on said amendment or amendments severally, are cast in favor thereof, it shall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment or amendments, severally, having received said majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the Constitution from the date of such proclamation. * * * "

Acting under the authority of article 17, § 1, of the Constitution a joint resolution, as shown by the House Journal, was introduced in the House on January 28 "by Messrs. Leonard, Johnson, Hammond, Marsh, North, Wells, and Korell (members of the House) in conjunction with Senators Bell and Norblad." In the House Journal, immediately after the entry reciting the introduction of the resolution, is inserted a printed copy of the resolution as introduced. The resolution was duly numbered, and thenceforth was known as House Joint Resolution No. 12. The resolution was referred to the committee on resolutions. On February 2d, the committee on resolutions reported H.J.R. No. 12 back without recommendation. The report of the committee was adopted; but the resolution was "re-referred" to the committee on military affairs. On February 10th the committee on military affairs reported the resolution back to the House with a recommendation that it pass with 13 proposed amendments. The report of the committee is signed by George W. Joseph, chairman of the Senate committee on military affairs, and by W.C. North, chairman of the House committee on military affairs, thus indicating that the two committees had met in joint session. The report of the committee is inserted in the House Journal. The report was adopted on motion of Korell, a member of the House. On February 11th, H.J.R. No. 12 was made a special order "for 10:30 a.m. to-day to be considered with H.B. 203." On the same day H.J.R. No. 12 "was read third time," and adopted by a vote of 55 yeas and no nays; 1 having been excused and 4 being absent.

The Senate Journal shows that on February 11th a message was received from the House, saying "that the house has passed H.J.R. No. 12 and herewith transmit same for consideration of the Senate." Inserted in the Senate Journal immediately after the entry reciting the receipt of the message from the House is a printed copy of H.J.R. No. 12 as originally introduced in the House, and immediately after the printed copy of the resolution so inserted is an entry stating "the resolution was referred to the committee on military affairs." On February 12th the resolution was reported back to the Senate by the committee on military affairs with the recommendation "that it do pass." The report of the committee was adopted, and "on motion of Senator Joseph H.J.R. No. 12 was laid on table to be considered with H.B. No. 203." The Senate Journal shows that the afternoon session began at 2 p.m. and "special order at 2:30 o'clock p.m. for consideration of House Joint Resolution No. 12." On motion of Senator Joseph H.J.R. No. 12 was taken from the table, and the Senate resolved itself into a committee of the whole "for the consideration of H.J.R. No. 12." The committee of the whole house arose and reported H.J.R. No. 12 back to the Senate, with the recommendation "that it do pass." The report of the committee was on motion adopted, and "on the adoption of House Joint Resolution No. 12 the roll was called, and the vote was" 28 yeas and 2 nays; and so H.J.R. No. 12 was declared adopted.

The House Journal shows that on February 16th during the afternoon session a message was received from the Senate, stating "that the Senate has passed H.J.R. No. 12 and herewith transmit same for enrollment." On the same date, February 16th, the House Journal shows that--

"The Speaker announced that he was about to sign H.J.R. No. 12, and subsequently that he had signed the same."

The Senate Journal under date of February 17th shows that the Senate received a message from the House, stating that the Speaker "has signed H.J.R. No. 12 and herewith transmit the same for your signature," and immediately following is an entry stating that--

"The President announced that he was about to sign H.J.R. No. 12 and subsequently that he had signed the same."

Epitomizing the history of H.J.R. No. 12 as recited in the House and Senate Journals, it may be said that the resolution was introduced in the House, amended by the House, and then adopted as amended. The resolution as originally introduced was printed, and a printed copy of the resolution was inserted in the House Journal. The report of the House committee on military affairs, signed by the chairman of the Senate committee on military affairs and by the chairman of the House committee on military affairs, is inserted in the House Journal; so it can be said that the resolution as originally introduced and the amendments proposed by the committee and adopted by the House were entered at length in the House Journal. The resolution, after its adoption by the House, was transmitted to the Senate. A printed copy of the resolution as originally introduced in the House is inserted in the Senate Journal, so that it can be said that the resolution as originally introduced in the House is entered at length in the Senate Journal; but the amendments adopted by the House are not entered at length in the Senate Journal. However, there is no affirmative statement found in the Senate Journal that the printed copy of House Joint Resolution No. 12 is a copy of the resolution received from the House, although the presence of the printed copy in the Senate Journal, standing alone and not considered in connection with any other facts or circumstances, raises an implication that the printed copy inserted in the journal is a copy of the resolution as it was received from the House. The Senate Journal further shows that the resolution, after its receipt from the House, was referred to the Senate committee on military affairs, and that subsequently the Senate adopted the report of this committee, recommending its adoption. The resolution was also considered by the committee of the whole house and then adopted by the Senate, after which it was transmitted to the House "for enrollment." The resolution was enrolled, and the presiding officers of the two branches of the Legislative Assembly signed the enrolled resolution, and thereupon it was filed with the secretary of state. The Legislative Assembly completely performed its functions when the enrolled resolution, after having been signed by the Speaker of the House and the President of the Senate, was delivered to the secretary of state; and hence the journals of the Legislative Assembly contain no entries concerning the resolution subsequent to the entries relating to the signatures of the presiding officers.

The proposed amendment as it appeared in its enrolled form was legally submitted to the people at an election held on June 7, 1921, when it was approved by the legal voters of the state, 88,219 votes having been cast for the amendment and 37,866 votes having been cast against it. On June 21, 1921 the secretary of state, in the presence of the Governor, canvassed the votes as required by law, and made and filed a certificate evidencing such canvass. On the same day, June 21, 1921, the Governor issued a proclamation, reciting the...