O'Hara v. State

• Decision Date: 11 April 1899
• Citation: 121 Ala. 28,25 So. 622
• Parties: O'HARA v. STATE.
• Court: Alabama Supreme Court

25 So. 622

121 Ala. 28

O'HARA v. STATE.

Supreme Court of Alabama

April 11, 1899

Appeal from city court of Montgomery; A. D. Sayre, Judge.

James O'Hara was convicted of doing business as an auctioneer without a license, and he appeals. Affirmed.

Gordon Macdonald, for appellant.

Charles G. Brown, Atty. Gen., for the State.

McCLELLAN C.J.

The appellant, James O'Hara, was indicted, tried, and convicted for doing business as an auctioneer in the city of Montgomery without a license, in violation of section 35 of the "Act to amend the revenue laws of the state of Alabama," approved February 18, 1897 (Acts 1896-97, p 1505). The defendant demurred to the indictment on the ground that said act is unconstitutional and void, assigning (1) that it is an attempt to discriminate between individuals engaged in the same occupation, in that it imposes a license tax on some auctioneers, and does not impose it upon others (2) that said act was not passed by the general assembly, for that it is not shown by the journal of the house of representatives to have been signed by the speaker thereof in the presence of the house; and (3) that the journals of the house show that amendments to said act passed by the senate were not adopted by an aye and nay vote of the majority of the house of representatives. The demurrer was overruled, and that action of the city court is the only matter presented for review by this appeal.

There is no merit in the first assignment of demurrer above stated (Ph nix Carpet Co. v. State [Ala.] 22 So. 627), nor in the third (Ex parte Howard-Harrison Iron Co. [Ala.] 24 So 516). Whether the act was signed by the speaker in the presence of the house-the inquiry raised by the second assignment-is to be determined by an examination of the journal of the house, upon which the organic law requires the fact of signing to be entered. Const. art. 4. § 27. Bearing upon, and directly upon, this matter, the house journal shows the following: First, a message from the senate to the house beginning thus: "Senate Chamber, February 18, 1897. Mr. Speaker: The president of the senate, in the presence of the senate having signed the following bills, your signature thereto is requested." Then follows the identification of 15 or 20 senate bills by their numbers and captions, and the message is signed, "John F. Proctor, Secretary." Immediately after this is the following: "Signing Bills. The speaker of the house, in the presence of the house, immediately after their titles had been publicly read by the clerk, signed the bills whose titles are set out in the foregoing senate message." And immediately succeeding this the journal continues as follows: "Enrolled Bills. Mr. Speaker: The committee, having examined the following house bills, find them correctly enrolled: H. 782. An act making it unlawful for fire, fire marine, and marine insurance companies not organized under the laws of the state of Alabama, but legally licensed to transact fire, fire marine, and marine insurance therein, and doing business therein through regularly commissioned agents, to place or cause to be placed insurance against loss by fire or property in this state, except through agents located in the state legally authorized to write policies of insurance therein, and prescribing penalties for violation of same; also to prescribe further conditions to be complied with by fire, fire marine, and marine insurance companies before receiving licenses to do business in this state. H. 891. To incorporate the Mercy Home of Birmingham, Alabama, and prescribe its corporate rights and privileges. H. 1,078. For the improvement of roads and bridges in Tuscaloosa county. H. 1,102. To amend subdivision 15, article 1, section 629 of the Code, so far as the same relates to Barbour county. H. 1,153. To establish a separate school district in Chambers county in this state. H. 824. To constitute the city of Luvern, in Crenshaw county, a separate free-school district for children, and to provide for the management of said free school in said school district. H. 1,057. To provide for the payment out of the convict funds for certain items of costs in felony cases, to fix the amount of said items, to prescribe the extent to which such costs will be paid, and the manner of paying them. H. 506. Making the fees of the officers of the court arising from certain criminal cases in Randolph county a claim and...