Helena Water Co. v. Helena

• Decision Date: 24 November 1919
• Docket Number: 4,15
• Citation: 216 S.W. 26,140 Ark. 597
• Parties: HELENA WATER CO. v. HELENA
• Court: Arkansas Supreme Court

216 S.W. 26

HELENA WATER CO. v. HELENA

140 Ark. 597

No. 4, 15

Supreme Court of Arkansas

November 24, 1919

Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor reversed and dismissed.

Decree reversed, and cause dismissed.

Bevens & Mundt and Carmichael & Brooks, for appellant Helena Water Company.

The act was constitutionally passed and does not impair the obligation of a contract. 204 S.W. 497; 163 Id. 585; 168 Id. 1156-1159; 204 Id. 386, 1074; 207 Id. 799. The city had no vested rights. The Helena Water Company was only bound to furnish hydrants at certain rentals. Where not constitutionally inhibited, the power to fix rates is a legislative faculty which is delegable to a public service commission. 207 S.W. 299. The doctrine of this case has often been approved. 225 F. 920; 206 U.S. 496; 194 Id. 517; 246 Id. 178; 248 Id. 429; 244 Id. 13; 205 S.W. 36; 192 S.W. 958; 192 Id. 460; 209 Id. 552; 105 A. 132; 196 U.S 539.

T. W Campbell, for the Arkansas Corporation Commission.

1. Act 571, Acts 1919, was constitutionally passed. The presumption is in favor of its validity. 12 Ark. 321; 27 Id 266; 39 Id. 353; 40 Id. 290; 54 Id. 513; 77 Id. 250. An act duly signed by the Governor and deposited with the Secretary of State and duly published as a law will be presumed to have been duly passed. 51 Ark. 359; 90 Id. 174; Ib. 600; 103 Id. 109; 110 Id. 269. The act should be sustained. 44 Ark. 536; 33 Id. 17; 40 Id. 200; 131 Id. 291; 214 S.W. 2. See also, in point, 40 Ark. 200; 131 Id. 291. Mere silence of the journals does not overcome the presumption of the act's due passage. Supra; Perry v. State, 139 Ark. 227.

2. The commission may grant indeterminate permits authorizing utilities to operate under terms other than those specified in municipal franchises existing at the time of the creation of said commission. 214 S.W. 71; 207 Id. 799; 121 N.E. 777; 117 Id. 915; City of Pawhuska v. Pawhuska Oil & Gas Co., S.Ct. Adv. op. No. 17, p. 663; 173 P. 556; 177 Id. 361; P. U. R. 1919 D, 422; 159 P. 133; 105 A. 109; 135 N.W. 131; 161 P. 391; 130 N.W. 530; City of Memphis v. Enloe, ms. op., Sup. Court of Tenn., July 3, 1919. These cases show that the fixing of rates and directing the operation of public utilities is a matter within the police power of the State, and the State is free to exercise this police power in such way as the Legislature may direct or determine and that the Arkansas Corporation Commission, having been, by the statute creating it, empowered to act in such matters for the State, is free to fix the rates and direct the operations of public utilities, regardless of the provisions of municipal franchises and the chancellor erred in granting the injunction against appellants. Cases supra.

Fink & Dinning, P. R. Andrews and J. G. Burke, for appellee.

1. No law can be enacted unless both houses pass the same bill. The act No. 571, Acts 1919, is unconstitutional and void because the Senate passed a different bill from the one passed by the House. This is affirmatively shown by the journal of the Senate. Art. 5, sec. 21. Const. 1874. The journals of both houses show affirmatively that a majority of the Senate voted for one bill and the majority of the House for another. The courts may look beyond the enrollment of an act to the journals to see if the act was constitutionally passed. 44 Ark. 536; 40 Id. 200; 72 Id. 565; 90 Id. 174; 103 Id. 109. The records of the Senate and House are the best evidence, 132 Ark. 240, though the records required by section 3351, Kirby's Digest, to be deposited with the Secretary of State are evidence of the facts which they testify to. See also 72 Ark. 565. The journals are not only the best but the sole and exclusive evidence of the facts in this case that the Senate passed a bill entirely different from the one passed by the House and deposited with the Secretary of State. 72 Ark. 565; 103 Id. 109, a case identical with this; 41 Ark. 471-5; 110 Id. 268; 103 Id. 109; 27 Ark. 266; Art. 5, sec. 11, Const. 1874; 33 Ark. 25.

2. The act approved by the Governor was not the same act passed by the Senate. 81 A. 170; 68 N.W. 759-762; 45 N.W. 493-6.

3. Amendments adopted by one House of the Legislature must be concurred in by the other or the bill will be invalid and of no force and effect. 72 Ark. 565; 41 Id. 471; 114 N.W. 767; 80 Id. 499; 29 So. 700.

4. The presumption of the validity of an act does not apply to this case because the Legislature failed to comply with the provisions of our Constitution and the presumption is overcome and does not apply, because the act here was not properly enacted by both branches of the Legislature as required by the Constitution. 103 Ark. 109; 14 Ill. 297; 110 Ark. 280 dissenting opinion. The facts here are materially different from those in 40 Ark. 200; 131 Id. 291 and 214 S.W. 2.

5. The act is void because it attempts to delegate to the commission therein created powers and duties which are not permitted by article 17 of the Constitution.

Section 10 of article 17 is amended by amendment No. 4. When the Constitution has spoken, the reserve powers of the legislative branch are thereby limited and must accord with the supreme law of the land. Pursuant to vested authority by this amendment, the Legislature did create a Railroad Commission and vested it with such powers as were provided for by the Constitution. By act 571 the name of the commission was changed to Arkansas Corporation Commission and its powers so enlarged as to embrace supervision of all public service corporations. Its powers and duties are defined, and the words are not ambiguous, and the Legislature has no right to invest it with powers and impose on it duties that are in no wise related to powers and duties which it is authorized to discharge by the enactment which provided for its creation. 27 Ark. 176; 89 Id. 459; 90 Id. 10-15; 134 Id. 463; 49 Id. 518.

MCCULLOCH C. J. WOOD, J., HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

This action was instituted by the city of Helena attacking the validity of act No. 571 of the General Assembly of 1919 (regular session), creating the Arkansas Corporation Commission and defining its duties, and abolishing the Railroad Commission and transferring its powers and duties to said Arkansas Corporation Commission.

There are two points of attack involved in the action: (1) That the statute was not legally enacted by the two houses of the General Assembly, in that the same bill was not voted on by the two houses; and (2) that it is not within the power of the General Assembly to abolish the Railroad Commission or to transfer its powers and duties to another commission.

The bill for the enactment of the statute originated in the Senate as "Bill No. 133" and on second reading seventeen amendments were offered, fifteen of which, according to the journal entries, were adopted, and the bill as thus amended was ordered engrossed. The engrossing committee reported the bill on February 24, 1919, as properly engrossed, but the engrossed bill which we find on file in the office of the Secretary of State does not contain two of the amendments which, according to the recitals of the journal, has been adopted. One of these was an amendment to section 7 of the bill adding a provision, in substance, that the commission was empowered, when deemed proper, to require the filing of an additional bond by a corporation whose schedule of increased rates for public service has been temporarily suspended by the commission. The other amendment was to section 31 of the bill providing that the Railroad Commission should be abolished on January 1, 1921, and perform all the specified duties of the Arkansas Corporation Commission until that date, instead of the original provision of the bill to the effect that the Railroad Commission should be abolished on April 1, 1919, and its powers and duties then transferred to the new commission. The journal of the Senate does not affirmatively show that the Senate at any time receded from either of those two amendments, and it recites the passage of the bill by the Senate February 25, 1919, on yea and nay vote duly recorded. The House journal recites the receipt of the bill on February 25, the reading of it the first and second times February 28, on suspension of the rules, and the third reading and final passage on March 7, 1919. Nothing appears on the journal of the House concerning any amendments. The bill as enrolled by the proper committee of the Senate and signed by the presiding officers of the two houses and by the Governor, does not contain those two amendments.

It is settled by an unbroken line of decisions of this court that "where an act was duly signed by the Governor, deposited with the Secretary of State and published as a law, it will be presumed that every requirement was complied with in its passage. Glidewell v. Martin, 51 Ark. 559, 11 S.W. 882; Mechanics' Building & Loan Association v. Coffman, 110 Ark. 269, 162 S.W. 1090; Perry v. State, 139 Ark. 227, 214 S.W. 2.

This presumption is not, however, a conclusive one, and the courts, in determining the validity of a statute, may look to the journals and other records of the Legislature to ascertain whether or not the constitutional requirements with respect to the passage of bills have been observed. Chicot County v. Davies, 40 Ark. 200; Webster v. Little Rock, 44 Ark. 536; Rogers v. State, 72 Ark. 565, 82 S.W. 169; Butler v. Kavanaugh, 103 Ark. 109; Mechanics Building & Loan Association v. Coffman, supra.

Mere silence of the legislative records concerning the successive steps in the passage of a bill, except as to matters of which the Constitution requires a record on the journals, is not sufficient to overcome the presumption of regularity in the passage...