Chicago, B. & Q.R. Co. v. Smyth

• Citation: 103 F. 376
• Parties: CHICAGO, B. & Q. R. CO. v. SMYTH, Atty. Gen., et al.
• Decision Date: 18 July 1900
• Court: U.S. District Court — District of Nebraska

103 F. 376

CHICAGO, B. & Q. R. CO. v. SMYTH, Atty. Gen., et al.

United States Circuit Court, D. Nebraska.

July 18, 1900

Woolworth & McHugh, for complainant.

C. J Smyth, Atty. Gen., for defendants.

MUNGER District Judge.

In 1885 the legislature of Nebraska passed an act creating a board of railroad commissioners, consisting of the attorney general secretary of state, and auditor of public accounts, which afterwards became article 8, c. 72, entitled 'Railroads,' of the Compiled Statutes of the state. The legislature in 1887 passed an act which, as shown by the enrolled bill signed by the governor and filed with the secretary of state, bears the following title:

'An act to regulate railroads, prevent unjust discrimination provide for a board of transportation, and define its duties, and repeal articles 5 and 8 of chapter 72, entitled 'Railroads,' of the Revised Statutes, and all acts and parts of acts in conflict herewith.'

By this enactment a board of transportation was created, consisting of the attorney general, secretary of state, auditor of public accounts, state treasurer, and commissioner of public lands and buildings. They were invested with certain powers, enabling them to determine and fix reasonable rates for the transportation of property within the state. The said board having made certain orders applying to the complainant's road within the state, complainant brings this action to enjoin any attempted enforcement of such order, alleging as grounds therefor that the said legislative enactment of 1887 creating said board is invalid, for the reason that the same was not passed by the legislature in the manner as required by the constitution of the state. Upon the issues as framed, the single question is presented as to the validity of said act. If the title thereof was adopted by the legislature as provided by the constitution, then complainant is not entitled to the temporary order of injunction now sought. If the title thereof was not passed by the legislature in the manner required by the constitution, then complainant is entitled to a temporary order of injunction.

A history of the act, as shown by the journals of the two houses of the legislature, is, in brief, as follows: Senate file No. 41, as introduced in the senate, was entitled, 'A bill for an act to repeal article 8 of chapter 72, entitled 'Railroads,' of the Second Edition of the Compiled Statutes of the State of Nebraska. ' This title will hereafter, for convenience, be designated as title No. 1. This bill was read a first and second time, referred to and reported by the several committees by title No. 1. During its progress through the senate various amendments to the bill were adopted, until the final passage, when the journal recites senate file No. 41, 'A bill,' etc. (title No. 1), was read a third time. Thereupon the roll was called upon the passage of the bill, and 19 senators voted in the affirmative, and 13 in the negative. 'A constitutional majority having voted in the affirmative, the bill was passed, and the title agreed to as amended. ' The next step in the proceedings is found in the house journal, reciting: 'Message received from the senate notifying the house that the senate had passed senate file No. 41, 'A bill,'' etc. (title No. 1). The journal of the house shows that this bill was read the first time, and ordered to a second reading by the title, 'A bill for an act to regulate railroads, prevent unjust discrimination, provide for a board of transportation, and define its duties, and repeal articles 5 and 8 of chapter 72, entitled 'Railroads,' of the Revised Statutes, and all acts and parts of acts in conflict herewith,' which title, for convenience, will hereafter be designated as title No. 2. The bill, by title No. 2, was read the second time, and referred to the committee on railroads. The committee on railroads reported the bill by title No. 2, with a majority and minority report. After consideration by the house, the bill came on for a third reading and final passage, when the journal recites that senate file No. 41, 'A bill for an act,' etc. (title No. 1), was read the third time and put upon its passage. The ayes and nays being called, 64 members voted in the affirmative; 28 in the negative; 8 absent and not voting. The journal recites, 'A constitutional majority having voted in favor of the passage of the bill, the bill passed and the title was agreed to. ' The next step in the proceedings, as shown by the journals, was a message from the house notifying the senate that the house had passed senate file No. 41, 'A bill for an act,' etc. (title No. 1). The house journal recites: 'The speaker gave notice of and signed, in the presence of the house, while capable of transacting business, the following: * * * Senate file No. 41, 'A bill,'' etc. (title No. 1). The house journal further shows that the joint committee on engrossed and enrolled bills reported they had presented to the governor senate file No. 41, 'A bill,' etc. (title No. 2). In the senate journal we find that the committee on engrossed and enrolled bills reported that they had examined and compared senate file No. 41, 'A bill,' etc. (title No. 2), and found the same correctly enrolled. The senate journal then recites: 'At 10:45 o'clock a.m., in the presence of the senate, the president pro tem. signed senate file No. 41, 'A bill,' etc. (title No. 1). ' The senate committed on engrossed and enrolled bills subsequently reported that they presented to the governor, for his approval and signature, senate file No. 41, 'A bill,' etc. (title No. 2).

Upon this evidence we are called upon to determine whether the act in question is valid. The following rules are to guide us in this determination: (1) In determining the validity of a legislative enactment, the supreme court of Nebraska, in repeated decisions, have held that the due authentication and enrollment of a statute afford only prima facie evidence of its passage; that the legislative journals may be examined for the purpose of ascertaining whether a measure was enacted in the mode prescribed by the constitution, and, if the entries found in such journals explicitly and unequivocally contradict the evidence furnished by the enrolled bill, the former will prevail. Webster v. City of Hastings, 59 Neb.--, 81 N.W. 510, and cases cited. (2) Such decisions are not matters of general law relating to evidence, but are constructions of constitutional and statutory provisions of the state, and are binding on the federal court. Town of South Ottawa v. Perkins, 94 U.S. 260, 24 L.Ed. 154. (3) To overturn the prima facie evidence afforded by the enrolled bill, it is not enough that the journals do not show that the bill as enrolled passed, but the journals must affirmatively show that the bill did not pass. (4) While it is not necessary that the journals of the legislative body should recite in full the title of the act, yet when they purport so to do they are presumed to recite the title correctly, and other evidence will not be received to impeach or contradict such recitals. 23 Am.& Eng.Enc.Law, 211, 212. (5) if the title of an act as passed by the legislature is materially changed after its passage, and before its enrollment and approval by the governor, the act is invalid.

Does the evidence thus afforded by the journals affirmatively show that title No. 2 did not pass both houses of the legislature? This involves an inquiry as to the relation which the title of a bill sustains to the bill itself. The constitution of this state (section 10, art. 3) provides:

'That no law shall be enacted except by bill; no bill shall be passed unless by assent of a majority of all the members elected to each house of the legislature, and the question upon final passage shall be taken immediately upon its last reading, and the yeas and nays shall be entered upon the journal.'

In section 11 of said article it is provided:

'No bill shall contain more than one subject, and the same shall be clearly expressed in its title. * * * The presiding officer of each house shall sign, in the presence of the house over which he presides while the same is in session and capable of transacting business, all bills and concurrent resolutions passed by the legislature.'

Here we have mandatory provisions of the constitution requiring every legislative enactment, to become a valid law, to have the assent of a majority of the members elected to each house of the legislature, and the journal of each house is required to show such assent by an entry of the yeas and nays upon the final passage. It is the assent of the majority of the members of each house to the entire bill, and not to some sections or portions of the bill, that is required to be entered by yea and nay vote on the journal. Again, it is required that the bill shall contain no more than one subject, and the same shall be clearly expressed in its title. This clearly implies that every bill shall have a title, and that no law is valid unless the bill therefor has a title. That being so, it clearly follows that the title is a part of the essentials of the bill, within the meaning of the constitution. This is made clear when we consider the object and purpose of this constitutional provision. In Cooley, Const. Lim. (6th Ed.) p. 169, it is said:

'The title of an act was formerly considered no part of it; and although it might be looked to as a guide to the intent of the lawmakers, when the body of the statute appeared to be in any respect ambiguous or doubtful, yet it could not enlarge or restrain the provisions of the act itself, and the latter might, therefore, be good when it and the title were in conflict. * * * Titles to legislative acts, however, have recently, in some states,

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