Gaines v. Horrigan

Decision Date30 April 1880
PartiesJ. L. GAINES, Comptroller in error, v. L. B. HORRIGAN.
CourtTennessee Supreme Court



Appeal in error from the Circuit Court of Shelby County. J. O. PIERCE, J.

Attorney-General LEA for Comptroller.

FINLAY & PETERS and C. H. EWING for Horrigan.

MCFARLAND, J., delivered the opinion of the Court.

This is an agreed case submitted to the Circuit Court of Shelby County, to determine what salary L. B. Horrigan, Judge of the Criminal Court of said County, is entitled to. Under our present constitution Judges were to be elected in August, 1870, and every eight years thereafter. When vacancies occur they are to be filled for the unexpired term. The election for the second term, under the constitution, was in August, 1878. A vancancy having subsequently occurred in this office, Judge Horrigan was appointed by the Governor on the 1st of August, 1879. At the session of the Legislature of 1879 and previous to Judge Horrigan's appointment, an Act (Chapter 3 of said Acts) was passed and took effect, providing that each Chancellor, Circuit and Criminal Court Judge (except County Judges) and Judges of special Courts, hereafter appointed or elected, shall receive two thousand dollars per annum. The second section repeals the law previously in force by which the salary of said officers was $2,500 per annum.

The first objection to this act is, that it was not in fact passed by the two houses of the Legislature in the mode required by the constitution, especially that clause which provides that no bill shall become a law until it shall have been read and passed on three different days in each House, and shall have received on its final passage in each House the assent of a majority of all its members and shall have been signed by the Speakers and Governor.

The facts as shown by the journals are in brief these, the bill was introduced into the Senate and known as Senate bill No. 3; it passed that body regularly, and was transmitted to the House, where it was amended as follows: In referring in the second section to the previous act, which was thereby repealed, it was referred to as “so much of an Act passed January 30, 1867, now section 4539a of Thompson & Steger's Code.” The words “Thompson & Steger's Code” were stricken out and the words Revised Code of Tennessee inserted, and as thus amended the bill was finally passed; but it was not again transmitted to the Senate for that body to concur in the amendment.

The bill was, however, subsequently signed by the Speaker of each House in open session, and the fact noted upon the journals, as required by the eighteenth section of article 2 of the constitution.

It is earnestly maintained that as it is shown that the Senate did not concur in the amendment of the bill adopted by the House, that the bill as published never did receive the assent of the two Houses. Many authorities are referred to to show that notwithstanding an act has the signatures of the two Speakers and the approval of the Governor, and is published by proper authority, nevertheless the Courts may look to the journals of the two Houses, and if from them it appear that the bill was not constitutionally passed the Act must be declared void. Such seems to be the decided weight of authority. Whether this rule would prevail to its full extent in view of the new provision of our present constitution, requiring all bills to be signed by the respective Speakers, in open session, and the fact of such signing to be noted on the journals, need not, in the view we have taken of the question, be definitely settled. It might be plausibly argued that this provision was intended to furnish conclusive evidence that the bills, in the form finally signed by the speakers, were the bills actually passed by the two Houses. The Act being performed in open session, it could hardly occur that the signatures should be affixed to bills never actually passed, without some member of the body discovering the mistake. It would seem this ought to be evidence of as high authority as the journals, at least as to all matters not expressly required to be shown by the journals. However we do not mean to intimate any decided opinion upon this question.

We hold that conceding the journals to establish all that is claimed, the bill was not amended in the House so as to change its legal import and effect. According to the opinion of a majority of this Court at the present term, the first section of this Act would have effected a valid change of the law if the second section had been omitted altogether. The second section only purports to repeal so much of the previous law as conflicts with the first section; it is referred to as an Act passed January 30, 1867, now section 4539a of “Thompson & Steger's Code,” in the original Act; of the “Revised Code of Tennessee in the Act as amended. The Act referred to is the same; the reference to the original Act was sufficient, especially as the substance is also given. The book referred to the original Act as “Thompson & Steger's Code,” and in the Act as amended as Revised Code of Tennessee,” we know to be the same book. It was more properly designated in the original bill. The Code of Tennessee was adopted in 1858. The subsequent compilation of Messrs. Thompson & Steger is a re-publication of the “Code” with the subsequent acts, as additional sections under the appropriate original sections, with letters affixed to distinguish them. This was the book referred to, and the Act referred to and repealed is the same.

It is earnestly argued that it would be a very great stretch of judicial power for a Court to undertake to say that the amendment is immaterial; that this was a question for two Houses of the Legislature; that it is enough for this Court to see that the bill was amended in the House, and the Senate did not concur in the amendment; that we cannot look beyond to see in what the amendment consisted. But it seems to us that it would be the exercise of a power far more arbitrary and unwarranted for the Court to declare the Act of the supreme legislative authority void upon an objection like this, in which there is no substance. If we may look to the journals to see that in form there was an amendment not concurred in, we may look further to see that in substance there was no amendment. We have no direct authority upon the point, but we are of opinion that the Act cannot be declared void, for the reasons given. The bill did receive the assent of both Houses in the constitutional mode.

It is next argued that if the Act was passed in accordance with the constitution it can only apply to Judges who may be elected in 1886. Part of the 7th Sec. of Art. 6 of the contitution is in these words: “The Judges of the supreme or inferior courts shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected.”

The argument is, that the latter clause was intended to prohibit the increasing or diminishing of a Judge's salary during the term for which he is elected. That is to say, as the judicial terms are eight years, and the terms of all...

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9 cases
  • Ballangee v. Board of County Commissioners of Fremont County
    • United States
    • Wyoming Supreme Court
    • December 6, 1949 any way hinder the payment of the increased salary to the appointee. The court cited in support of its opinion, the cases of Gaines vs. Horrigan, 72 Tenn. 608, State ex Bashford vs. Frear, 138 Wis. 536, 120 N.W. 216, 16 Ann. Cas. 1019, Board of Chosen Freeholders of Atlantic County vs. L......
  • Comptroller of State v. Klein
    • United States
    • Maryland Court of Appeals
    • January 30, 1958
    ...770; Holmes v. Frohmiller, 1940, 55 Ariz. 556, 104 P.2d 156. The following cases tend to support the contention of the appellee: Gaines v. Horrigan, 72 Tenn. 608. In this case the constitutional limitation was 'during the time for which they are elected.' Article 6, § 7. In a well considere......
  • Wilson v. Shaw
    • United States
    • Iowa Supreme Court
    • June 23, 1922
    ...construed by the court in each case must be distinguished and differentiated. See Carter v. State, 77 Okla. 31 (186 P. 464); Gaines v. Horrigan, 72 Tenn. 608; Storke v. Goux, 129 Cal. 526, 62 P. 68. The case of State v. Frear, 138 Wis. 536 (120 N.W. 216) turns on the question whether the la......
  • Schaffner v. Shaw
    • United States
    • Iowa Supreme Court
    • December 31, 1920
    ...any increase or diminution of salary. On this question, the cases are in conflict. State v. Frear, 138 Wis. 536 (120 N.W. 216); Gaines v. Horrigan, 72 Tenn. 608; State v. Porter, (Mont.) 188 P. 375. The vacancy, seen, was created by statute, and an incumbent designated for the particular of......
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