Butler v. Board of Directors

• Court: Arkansas Supreme Court
• Writing for the Court: McCulloch
• Citation: Butler v. Board of Directors, 146 S.W. 120, 103 Ark. 109 (Ark. 1912)
• Decision Date: 01 April 1912
• Parties: BUTLER v. BOARD OF DIRECTORS OF FOURCHE DRAINAGE DIST.

146 S.W. 120

BUTLER v. BOARD OF DIRECTORS OF FOURCHE DRAINAGE DIST.

Supreme Court of Arkansas.

April 1, 1912.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Action by R. C. Butler against William M Kavanaugh and others, members of the Board of Directors of Fourche Drainage District. From a judgment for defendants, plaintiff appeals. Affirmed.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant. Coleman & Lewis, of Little Rock, for appellees.

McCULLOCH, C. J.

The Constitution (section 21, art. 5) provides that "no bill shall become a law unless, on its final passage, the vote be taken by yeas and nays, the names of the persons voting for and against the same be entered on the journal, and a majority of each house be recorded thereon as voting in its favor." This proceeding challenges the legal passage of the bill for an act of the General Assembly of 1907 (Acts 1907, p. 1112), laying off an improvement district in Pulaski county "for the drainage of certain portions of the Fourche bottoms and contiguous territory," and it is claimed that the journal of the Senate fails to show compliance with the above-quoted provision of the Constitution.

The provision is mandatory, and must be observed by both houses in the passage of a bill; otherwise the statute is illegal and void. Smithee v. Garth, 33 Ark. 17; Chicot County v. Davies, 40 Ark. 200; State v. Corbett, 61 Ark. 226, 32 S. W. 686; Rogers v. State, 72 Ark. 565, 82 S. W. 169; State v. Bowman, 90 Ark. 174, 118 S. W. 711; Pelt v. Payne, 90 Ark. 600, 30 S. W. 426, 134 Am. St. Rep. 45.

This court has steadily adhered to its position, taken many years ago, that an act of the Legislature, duly signed by the Governor, deposited with the Secretary of State, and published as a law, is presumed, in the absence of a showing to the contrary, to have been passed in compliance with the rules of the Legislature; but the journals can be looked to for the purpose of determining whether or not the constitutional requirement with respect to recording the vote thereon has been complied with. See cases, supra.

The legislative history of the bill in question is that it was introduced in the House as House bill No. 398, and that it duly passed that body; the journals properly showing the aye and no vote recorded on its passage. It was transmitted to the Senate, and the following entry appears as of May 7, 1907, on the Senate Journal: "House Bill No. 398, entitled `An act to be entitled an act to create, lay off and establish a drainage and levee district in Pulaski county, Arkansas, to be known as the Fourche Drainage District, for the drainage of certain portions of the Fourche bottom and contiguous territory in said district, to create a board of directors for said district, and for other purposes,' was read the first time, rules suspended and read the second time and made a special order for tomorrow at 2 p. m."

The following entries appear as of May 8, 1907, on said journal:

"At 12 o'clock the Senate, on motion, took a recess until 2 p. m.

"Senate called to order after recess.

"A quorum present.

"House Bill No. 389, being a special order for this hour, was read the third time.

"The question being, Shall the bill pass? the secretary called the roll and the following voted in the affirmative: [Here follow the names of the senators, showing a majority voting in the affirmative.]

"In the negative, none.

"Absent and not voting: [Here follow the names of senators.]

"So House Bill No. 389 passed."

The original bill, which is now on file in the office of the Secretary of State with other legislative proceedings, shows the following indorsements thereon:

"H. B. No. 398 — Pugh.

"4/8, 1907 — Read first time, rules suspended and read the second time. Ed. L. Lucas, Chief Clerk.

"April 24, 1907 — Read third time, and passed. Ed. L. Lucas, Chief Clerk.

"April 25, 1907 — Received from House.

"May 7, 1907 — Read first time, rules suspended and read second time. S. O. for 5/8, 2 p. m. Geo. H. Trevathan, Secretary.

"May 8, 1907 — Read third time and passed. Geo. H. Trevathan, Secretary.

"May 10, 1907 — Received from Senate. Ed. L. Lucas, Chief Clerk.

"Presented to the Governor at 3:30 p. m. May 28, 1907. W. E. Simpson, Chairman Enrolling Committee."

The original bill is also signed by the Speaker of the House of Representatives and the President of the Senate, and the approval of the Governor is indorsed thereon. The journals of the House recite that on May 10, 1907, the bill was duly reported to that body as having passed...