Charleston Nat. Bank v. Fox
| Decision Date | 23 November 1937 |
| Docket Number | 8565. |
| Parties | CHARLESTON NAT. BANK, et al. v. FOX, State Tax Commissioner, et al. |
| Court | West Virginia Supreme Court |
Submitted September 21, 1937.
Syllabus by the Court.
1. The printed acts of the Legislature are presumed to be valid enactments. Where, however, there is a variance between a printed act and the enrolled bill, the enrolled bill controls. The strongest presumption, however, is in favor of a bill which has been duly enrolled and bears thereon evidence of the executive's action in regard to it. Nevertheless, an authenticated enrolled bill is not a verity precluding question, and the presumption in its favor may be overcome by clear and convincing proof.
2. Article 7, section 14, West Virginia Constitution, requiring presentation of a bill to the Governor before it shall become a law, is mandatory. Where the absence of such presentation is properly shown, the enactment is a nullity.
3. When a bill passed by the Legislature is printed in the acts as having become a law without the signature of the Governor this court will take judicial notice of such facts as will enable it to determine the question of its presentation to the Governor.
4. On inquiry, whether an act has been properly enacted, this court will take judicial notice of the records of the offices of the Governor, Secretary of State, and clerks of both the Senate and House of Delegates.
5. Chapter 87, Acts of the Legislature, Regular Session 1935 (contained in the printed acts), providing for the refund of taxes collected and improperly required to be paid by the State Tax Commissioner was not validly enacted.
Error to Circuit Court, Kanawha County.
Certiorari by the Charleston National Bank and others, executors against Fred L. Fox, State Tax Commissioner. To review a judgment for plaintiffs, Ernest K. James, Acting State Tax Commissioner, brings error.
Judgment reversed, and petition dismissed.
Brown Jackson & Knight and C. W. Moxley, all of Charleston, for plaintiff in error.
Chas N. Kimball and W. J. Brennan, both of Sistersville, amici curiæ.
Clarence W. Meadows, Atty. Gen., and Forrest B. Poling, Asst. Atty. Gen., for defendants in error.
This case is here on writ of error to a judgment of the circuit court of Kanawha county entered on December 30, 1936, ordering the State Tax Commissioner to refund to the executors of Frank Cox, deceased, the sum of $11,037.38 as an overpayment of the state inheritance tax due upon the estate of their decedent. The case originated in the office of the State Tax Commissioner when the executors filed a petition under the provisions of chapter 87, Acts of the Legislature, Regular Session 1935. To a ruling of the commissioner refusing a refund, a writ of certiorari was sued out in the circuit court. The whole procedure depends upon the validity of the enactment of that chapter, and therefore, if it be determined that the chapter was not validly enacted, the petition must be dismissed.
The serious question as to the validity of the enactment of this chapter depends upon whether or not the bill passed by both houses of the Legislature was presented to the Governor within the time required by the Constitution. There is no reason for concern with the procedure in the Legislature.
From the journals of the two Houses, it appears that chapter 87 originated in the Senate as Senate Bill No. 291, was introduced by Senator Hodges, by request, and was passed by that body to take effect from passage. The action of the Senate was reported to the House of Delegates, and on March 9, 1935, the House passed the same measure to be effective from passage. The Joint Committee on Enrolled Bills reported to the Senate and the House on March 11, 1935, that "S. B. 291" (Senate Bill No. 291, the report giving only the title of the bill) had been presented to the Governor for his action thereon. The Legislature adjourned the same day.
In the office of the Secretary of State, there is on file a duly enrolled bill, authenticated by the signatures of the chairman of the House Committee and the chairman of the Senate Committee, the two committees composing the Joint Committee on Enrolled Bills, and the signatures of the President of the Senate and the Speaker of the House. The certificate of the clerks of the two houses, signed by both, is affixed showing that the bill originated in the Senate and takes effect from passage. These actions fulfill the requirements of section 17 of the Joint Rules. To this bill is affixed the certificate required by section 18 of the Joint Rules, in case the bill becomes a law without the Governor's approval, as follows: "I certify that the foregoing act, having been presented to the Governor for his approval, and not having been returned by him to the House of the Legislature in which it originated within the time prescribed by the Constitution of the State, has become a law without his approval."
The latter certificate is signed by William S. O'Brien, Secretary of State, and bears date March 15, 1937. In addition, this bill is stamped, "Filed in the office of the Secretary of State of West Virginia March 15, 1935," which stamp is also signed by the Secretary of State. The Legislature did not pass this bill.
A copy of the bill passed by the Legislature is in the office of the Secretary of State, but it does not have on it any authenticating signatures or the stamp required to be affixed by the Joint Rules in case the bill becomes a law without the Governor's approval. Only these words, typewritten in parenthesis at the top, appear thereon: "Re-Enrolled: Substituted for former bill." There is also clipped to it, by an ordinary paper clip, a memorandum paper which has on it the following words: "Journal of The Senate Regular Session 1935 page 967."
The heading of the latter bill, except the marking therein of its effective date, is identical through the enacting clause with the bill passed by the Senate and the House. The difference is in the body of the act, and probably arose from the fact that an amendment was adopted after the bill was reported out of the Senate Finance Committee. This, however, is mere conjecture.
The substantive provisions of the enrolled bill in the Secretary of State's office and that passed by the Legislature differ materially. It is needless to set out their provisions here.
There are duly enrolled copies of both bills on file in the records of the clerk of the House of Delegates. The only difference disclosed in the headings of the two bills, as enrolled, is that the bill passed by the Legislature has in its heading the words, "Effective from passage," while the bill in the Secretary of State's office has in its heading the words, "Effective ninety days from passage." The record book of all bills presented to the Governor for his approval, belonging to the Joint Committee on Enrolled Bills and required to be kept by section 17 of the Joint Rules, which is a receipt book signed by the Governor, shows that the bill presented to him was a bill to be effective 90 days from passage, and was presented to him on March 11, 1935. The record is composed of clipped headings of printed bills pasted to a sheet of the book, and the receipt of the Governor is written across the heading in his own handwriting, states the date of delivery of each bill, and is signed by him. There is no other receipt for the 1935 Regular Session for a Senate Bill 291 in this book.
The Governor's record of bills presented to him for the 1935 session shows that Senate Bill No. 291, "Relating to the refunding of excess payment of taxes," the sponsor of whom was Senator Hodges, was received March 11, 1935, was not approved or vetoed by him, was filed March 15, 1935, with the Secretary of State, and that the effective date of this bill was to be 90 days from passage. This record does not show the presentment of any other Senate Bill 291 of that session. Although there is no provision of law requiring the keeping of this record, it has been kept in its present form for many years.
On the basis of these facts, it is contended on behalf of the Tax Commissioner that the bill known as Senate Bill No. 291, which was actually passed by the Legislature, was not presented to the Governor, but that the bill presented to the Governor was a different one, and had not been passed by the Legislature. The defendants in error, on the other hand, contend that there is a strong presumption that a bill which appears in the published acts has been passed by the Legislature and presented to the Governor, and that all the necessary steps for the valid enactment of such a bill have been taken. They also contend that there is no provision of law requiring the keeping of the hereinbefore mentioned records, and that therefore they are not entitled to sufficient credit to overthrow this presumption.
The clerk of the House is the keeper of the rolls. He has custody of the acts of the Legislature, and the duty of furnishing the manuscript for the printed acts to the printer. Code 1931, 4-1-13. The printed acts are presumed to be valid enactments. State v. Groves, 80 Ohio St. 351, 88 N.E. 1096, 17 Ann.Cas. 361; Helena Water Co. v. City of Helena, 140 Ark. 597, 216 S.W. 26; Baltimore, etc Co. v. Canton Lumber Co., 118 Md. 135, 84 A. 188. But the strongest presumption is in favor of a bill that has been duly enrolled and bears thereon evidence of the executive's action in regard to it. Anderson v. Bowen, 78 W.Va. 559, 89 S.E. 677. If there is a variance between the printed acts and the enrolled bill, the enrolled bill controls. Combs v. City of Bluefield, 97 W.Va. 395, 125 S.E. 239; State v. Groves, 80 Ohio St. 351, 88 N.E. 1096, 17 Ann.Cas. 361. ...
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