Jernigan v. Niblock, 76--249

• Citation: 260 Ark. 406,540 S.W.2d 593
• Decision Date: 20 September 1976
• Docket Number: No. 76--249,76--249
• Parties: George O. JERNIGAN, Secretary of State, et al., Appellants, v. Walter R. NIBLOCK et al., Appellees.
• Court: Supreme Court of Arkansas

Page 593

540 S.W.2d 593

260 Ark. 406

George O. JERNIGAN, Secretary of State, et al., Appellants, v. Walter R. NIBLOCK et al., Appellees.

No. 76--249.

Supreme Court of Arkansas.

Sept. 20, 1976.

Jim Guy Tucker, Atty. Gen. by Lonnie A. Powers, Deputy Atty. Gen., Little Rock, for appellant George O. Jernigan, Jr.

Eugene R. Warren, Little Rock, for appellant Arkansas Medical Society.

Chas. A. Brown and U. A. Gentry, Little Rock, for appellees.

ROY, Justice.

Appellees instituted this action to enjoin the Secretary of State from certifying to the appropriate election officials Proposed Constitutional Amendment No. 58. Thereafter the Arkansas Medical Society was granted permission to intervene as party-defendant.

Appellees contend inter alia that House Joint Resolution No. 17(H.J.R. No. 17) was not passed with the formalities required by Article 19, § 22 of the Arkansas Constitution. The trial court agreed with appellees and held that the House and Senate had adopted different versions of H.J.R. No. 17 and that the popular name and ballot title of the proposed amendment 'are not in accordance with existing case law . . .' Accordingly, the court enjoined the Secretary of State from taking any further action to place Proposed Constitutional Amendment 58 on the ballot. From said decree this appeal is pursued.

We review the record to see if constitutional requirements have been met. There is no dispute as to what the journals of the House and the Senate reflect. H.J.R. No. 17, in pertinent part, reads as follows:

SECTION 1. Amendment twentysix (26) to the Constitution of the State of Arkansas is hereby amended to read:

The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payments shall be made. It shall also have the power to enact laws prescribing the amount of compensation to be paid to persons for injuries or death caused by malpractice performed by practitioners of the healing arts as classified by Title 72 of the Statutes of the State of Arkansas. It shall have power to provide the means, methods and forum for adjudicating claims arising under said laws and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the general assembly shall prescribe for whose benefits such action shall be prosecuted. (Italics supplied.)

On January 16, 1976, H.J.R. No. 17 was amended (Amendment No. 3) by striking lines 29 and 30 on page 1 and substituting the following To persons for injuries or death caused by malpractice performed by hospitals, nursing homes, certified registered nurse anesthetists, and by practitioners of the healing arts as classified by Title 72 of the Statutes.

The House journal shows the amendment was adopted by more than 51 votes, but the yeas and nays were not recorded.

On January 19, 1976, H.J.R. No. 17 was again spread on the record of the House journal as originally introduced but without making the changes indicated in Amendment 3.

Later the resolution was amended (Amendment 4) by deleting the phrase 'as classified by Title 72 of the Statutes of the State of Arkansas,' with the years and nays being recorded.

On January 26, 1976, the resolution as a whole was read in the House the third time, with the yea and nay vote being recorded, but again the words of Amendment 3 'by hospitals, nursing homes, certified registered nurse anesthetists' were omitted.

The Senate journal indicates that when H.J.R. No. 17 was called up for a third reading and final passage, it was spread upon the journal, in extenso, with the yea and nay vote recorded. The resolution of the Senate included the words 'by hospitals, nursing homes, certified registered nurse anesthetists' which did not appear in the H.J.R. No. 17 as finally adopted by the House.

Article 19, § 22 of the Arkansas Constitution in pertinent part reads as follows:

§ 22. Constitutional amendments.--Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, . . .. (Italics supplied.)

In McAdams v. Henley, 169 Ark. 97, 273 S.W. 355 (1925), this Court stated:

We have decided that the provision in § 22, art. 5, requiring the yeas and nays to be entered on the journal on the final passage of a bill, is mandatory, and that the omission renders an enactment void. Smithee v. Garth, 33 Ark. 17; State v. Bowman, 90 Ark. 174, 118 S.W. 711; Butler v. Board of Directors, 103 Ark. 109, 146 S.W. 120.

In Bryant v. Rinke, 252 Ark. 1043, 482 S.W.2d 116 (1972), we reaffirmed that where the journal, after attempted corrections, did not reflect the yea and nay votes on two resolutions after amendment, as required by Article 19, § 22 of the Arkansas Constitution, these defects were fatal to the resolution.

In Coulter v. Dodge, 197 Ark. 812, 125 S.W.2d 115 (1939), we stated:

* * * In other words, it was essential that the journals of both the House and Senate show definitely and certainly what amendment had been approved for submission, and that both the House and the Senate had concurred in the submission of the...