Glidewell v. Martin

Decision Date15 June 1889
Citation11 S.W. 882
PartiesGLIDEWELL <I>v.</I> MARTIN, Circuit Judge.
CourtArkansas Supreme Court

W. L. Terry, T. B. Martin, and F. T. Vaughan, for petitioner. J. W. Blackwood, F. M. Fulk, F. W. Compton, and S. R. Allen, for respondent.


Petitioner, H. E. Glidewell, alleges that the circuit court of Pulaski county is proceeding in a matter beyond its jurisdiction; that it is about to try and determine, upon an appeal from the county court of Pulaski county, an election contest for the office of county treasurer of Pulaski county, brought against petitioner by one T. H. Jones under the pretended authority of the pretended act of the legislature of Arkansas, entitled "An act providing a general law," approved January 23, 1875. The circuit judge responds, and demurs to the petition. From the petition, (the statements of fact being conceded by the demurrer,) and from the journals of the senate and house of representatives of the general assembly, the following matters appear: Glidewell holds the office of county treasurer. Jones began a contest for the office, in the Pulaski county court, Glidewell objecting. The contest was tried, and an appeal was taken to the circuit court. Petitioner moved to dismiss because, the county court having no jurisdiction, the circuit court acquired none on appeal. The circuit court overruled said motion, and ordered that the trial proceed. By the journal of the senate it appears that the act of January 23, 1875, was introduced in the senate as "Senate Bill No. 54," on November 27, 1874, when it was read the first time. The journal thereupon says: "Senator Hicks moved a suspension of the rules, and the reading of the bill a second time by title. Adopted. Senator Hicks then moved that the bill be referred to committee on elections, and that 240 copies be printed. Carried." On December 16, 1874, the journal shows: "Mr. Hicks, under the regular order of business, moved that Senate Bill No. 54 — an act providing a general election law — be read a third time, and placed on its final passage, which was adopted. The question being put, `Shall the bill pass?' it was decided in the affirmative. Yeas, 24; nays, none; not voting, 7. So the bill was passed." The yeas and nays are entered on the journal. The act was approved January 23, 1875. Section 71 of said act, being section 2722, Mansf. Dig., is as follows: "When the election of any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any other county or township officer, the contest of which is not otherwise provided for, shall be contested, it shall be before the county court, and the person contesting," etc. Petitioner presents three objections to the jurisdiction of said circuit court, viz: (1) Said general election law was never constitutionally passed in this: that it was never read at length three times in the senate. (2) That, if said act was ever legally passed, it was repealed by the act of February 5, 1875, entitled "An act fixing the regular terms for holding the county courts of the state, and for fixing the salary of the county judges, and the per diem pay of the associate justices of the several counties of this state." (3) That the legislature had no constitutional power to confer jurisdiction upon the county courts to try election contests. We will consider the questions in their order.

1. Section 22, art. 5, of the constitution (1874) is as follows: "Every bill shall be read at length on three different days, in each house, unless the rules be suspended by two-thirds of the house, when the same may be read a second or third time on the same day; and 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 is the only requirement as to what shall go upon the journals. The bill must be read at length, but the journal is not required to show conformity to this requirement. From considerations of public policy, and because of the respect due the action of a co-ordinate department of government, the courts long since began to supply the omissions of journal clerks by presumptions as to the regularity of the proceedings of the general assembly. This has been found most salutary; and the attitude assumed by the judiciary in this regard, has gone far towards establishing and maintaining public confidence in the stability of legislative action. Many cases of flagrant hardship are thus prevented, while, by the operation of the rule, few, if any, have sustained substantial injury. The courts are gravitating towards the English rule, so thoroughly discussed by Mr. Justice SMITH in Chicot Co. v. Davies, 40 Ark. 200; for, while they say that the enrolled bill is not conclusive of the valid enactment of a law, and that we may look beyond it to the journals, they supply, by presumption, everything necessary to its validity, save where the journal affirmatively shows a violation of the constitution. In this case the journal shows affirmatively but one reading of the bill No. 54 in the senate. It was argued that the journal shows the second reading, and shows it to have been by title and not at length. The entry is: "Senator Hicks moved a suspension of the rules, and the reading of the bill a second time by title. Adopted." This is not an affirmative showing of the fact of reading by title, or otherwise; for while, from the adoption of the motion, it might be presumed that the reading followed, the court will not indulge the presumption that the senate acted in violation of its sworn duty. It will indulge, rather, the presumption, arising from the recitals of a final passage in legal form, that the readings were had in accordance with law. Vinsant v. Knox, 27 Ark. 279; English v. Oliver, 28 Ark. 317; State v. Railway Co., 31 Ark. 717; Worthen v. Badgett, 32 Ark. 516, 518; Smithee v. Garth, 33 Ark. 25, 26; Chicot Co. v. Davies, 40 Ark. 200; Webster v. City, 44 Ark. 536; Blessing v. Galveston, 42 Tex. 641; Miller v. State, 3 Ohio St. 475; McCulloch v. State, 11 Ind. 424; Weyand v. Stover, 11 Pac. Rep. 355. Upon these and many other authorities we hold that the act of January 23, 1875, was constitutionally passed.

2. The act of January 23, 1875, was not repealed by the act of February 5, 1875. The rule by which we are guided is well stated in the following cases: Babcock v. City of Helena, 34 Ark. 499; Coats v. Hill, 41 Ark. 149; Chamberlain v. State, 50 Ark. 132, 6 S. W. Rep. 524. The implication by which a repeal is sought to be established is forced and strained, — not "necessary."

3. Had the legislature power to confer jurisdiction upon the county court to try contested election cases, as provided in section 71 of the act of January 23, 1875? Section 9, art. 6, Const. 1836, and section 11, art. 7, Const. 1864, were as follows: "There shall be established, in each county of this state, a court to be holden by the justices of the peace, and called the `county court,' which shall have jurisdiction in all matters relating to county taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties." Section 28, art. 7, Const. 1874, is as follows: "The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided." Section 11, Id., is as follows: "The circuit court shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which may not be invested in some other court provided for by this constitution." Section 4, art. 6, Id., is: "Contested elections for governor, secretary of state, treasurer of state, auditor of...

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