McAdams v. Henley

• Decision Date: 29 June 1925
• Docket Number: 77
• Citation: 273 S.W. 355,169 Ark. 97
• Parties: MCADAMS v. HENLEY
• Court: Arkansas Supreme Court

273 S.W. 355

169 Ark. 97

MCADAMS v. HENLEY

No. 77

Supreme Court of Arkansas

June 29, 1925

Appeal from Craighead Chancery Court, Western District; J. M Futrell, Chancellor; reversed.

Decree reversed and cause remanded.

Horace Sloan, for appellant.

Arthur L. Adams, for appellee; Hal L. Norwood, amicus curiae.

MCCULLOCH C. J. WOOD and HUMPHREYS, JJ., dissent.

OPINION

MCCULLOCH, C. J.

This case involves the validity of a statute enacted by the General Assembly of 1925 (Act No. 53, unpublished) authorizing a road improvement district in Craighead County to contribute of its funds a specified amount in the construction of a bridge spanning Cache River in the route of the road; and the primarily controlling question in the case is whether or not proposed amendment No. 12, which would prohibit the Legislature from passing bills for local laws and which was voted on at the general election of October 7, 1924, was legally adopted. The validity of the amendment is assailed on the ground that it was not proposed by the General Assembly in the manner prescribed by the Constitution, in that the proposal was not "entered on the journals with the yeas and nays." Constitution 1874, art. 19, § 22.

The validity of this amendment was not directly involved in the decisions of this court in the recent cases of Brickhouse v. Hill, and Arlitt v. Hill, 167 Ark. 513, 268 S.W. 865, but those cases are decisive that this amendment received the requisite number of favorable votes for its adoption.

The Constitution of 1874 (art. 19, § 22) prescribes the following method for proposing and adopting amendments thereto:

"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, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately."

It has often been decided by this court that we take judicial notice of the contents of the journals of the two Houses of the General Assembly, and in doing so in the present case we find the following state of the record with reference to the proposal for the adoption of said amendment No. 12.

The proposal originated in the Senate and was designated on the journal as "Senate Joint Resolution No. 9 by Norfleet and Caldwell," and the resolution was spread at large on the journal in the following form:

"Senate Joint Resolution No. 9."

"Proposed Amendment to the Constitution of the State of Arkansas:

"Be it resolved by the Senate of the State of Arkansas and the House of Representatives of the State of Arkansas, a majority of all the members elected to each House agreeing thereto, that the following is hereby proposed as an amendment to section 26 of article 6 of the Constitution of the State of Arkansas, and upon being submitted to the electors of the State for approval or rejection at the next general election for Senators and Representatives, if a majority of the electors voting at such election adopt such amendment, the same shall become a part of the Constitution of the State of Arkansas, towit:

"Section 1. No local or special bill shall be passed by the General Assembly of the State of Arkansas. Counties and municipalities shall have the power of legislation as to all local and special legislation of every character in and for their respective municipalities and counties, the manner to be provided by law; but no local legislation shall be enacted contrary to the Constitution or contrary to any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.

"Municipalities may provide for the exercise of the initiative and referendum as to their local legislation. General laws shall be enacted providing for the exercise of the initiative and referendum for local acts passed as herein provided as to the counties.

"Fifteen per cent. of the legal voters of any municipality or county may order the referendum or invoke the initiative upon any local or special measure.

"In municipalities the number of signatures required upon petition shall be computed upon the total vote cast for the office of mayor at the last preceding general election; in counties upon the office of circuit clerk.

"In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty nor more than ninety days before the election at which it is to be voted upon; and for a referendum petition, not less than thirty days nor more than ninety days after the passage of such measure by a municipal council.

"Section 2. This amendment shall take effect and be in force and operation sixty days after its approval and adoption by the people of the State of Arkansas."

On a later day the Senate adopted the resolution by the necessary two-thirds vote, and the resolution, as originally introduced and entered on the journal, was re-entered on the journal together with the yea and nay vote thereon, showing the adoption. The resolution as adopted by the Senate was then transmitted to the House and was read the first time and spread at large upon the journals of the House. There was, according to the recitals in the journal, a motion to table the resolution, but the motion failed of adoption. On a subsequent day a member of the House offered the following amendment to Senate Resolution No. 9:

"Amendment to Senate Joint Resolution No. 9.

"Amend Senate Joint Resolution No. 9 by striking out the following words in line 1 of section 1, to-wit: 'or special.'

"Also by striking out the following words from the first paragraph of section 1, to- wit: "And any general law shall have the effect of repealing any local legislation which is in conflict therewith.'

"Also by striking out from section 2 the following words, to-wit: 'Sixty days.'"

The journals recite that this amendment to the resolution was read the first and second times and adopted, and immediately following the vote there is a recital in the House journal that Senate Joint Resolution No. 9 was read the third time and placed on final passage, and that the resolution was adopted. This occurred according to the journal, on March 6, 1923, and in connection with this recital in the journal the resolution as it came from the Senate was again spread at large with a recital of the vote by yeas and nays showing the adoption of the resolution by more than two-thirds of the House. The last recital of the House journal, which was on the same day as the adoption of the resolution, was that "Senate Joint Resolution No. 9 was ordered immediately transmitted to the Senate." The recitals of the Senate journal on March 7, 1923, are as follows:

"Senate Joint Resolution No. 9 by Norfleet and Caldwell.

Was read the third time and placed on final passage.

The question being, shall the bill pass?

The Secretary called the roll and the following voted in the affirmative:

(Then follows the entry of the vote by yeas and nays showing the adoption of the amendment). There is no reference anywhere on the Senate amendment of the resolution in the house. The Senate journal on March 6, 1923, contains a copy of the message from the House announcing the adoption "of Senate Resolution No. 9 by Senator Caldwell and others," but that announcement makes no mention of any amendment by the House. The last entry on the Senate journal is a report from the Committee on Enrolled Bills to the effect that Senate Joint Resolution No. 9 by Senator Caldwell had been presented to the Governor for his approval. The enrolled resolution on file in the office of the Secretary of State omits the words specified in the House amendment to the resolution, and in this form the proposed amendment was duly advertised and submitted to the voters on the ballot at the general election in 1924.

It is thus seen that the House amendment to the resolution was never entered on the journals the Senate, and that the proposed amendment which was entered at large on the journals of the Senate is materially different in its language and import from that which was submitted to the people at the next general election.

If we were dealing with the validity or with the construction of a statute enacted by the Legislature, it would be a matter of interpretation or rather a matter of presumption whether the recitals of the House journal meant that the amendment to the resolution was receded from and the original Senate resolution finally adopted, or whether the amended resolution was adopted, notwithstanding the entry at that place on the journals of the original Senate resolution; but that is not the question in this case in determining the validity of the proposal, nor are we dealing with the question of presumption to determine whether or not the two houses of the General Assembly agreed upon the same proposal. The real question is whether the omission from the Senate journals of the House amendment and the substantial difference between the amendment entered on the journal of the Senate and the one submitted to the people renders the adoption by the people ineffectual.

At an...