Mechanics Building & Loan Association v. Coffman

• Decision Date: 24 November 1913
• Parties: THE MECHANICS BUILDING & LOAN ASSOCIATION v. COFFMAN
• Court: Arkansas Supreme Court

162 S.W. 1090

110 Ark. 269

THE MECHANICS BUILDING & LOAN ASSOCIATION v. COFFMAN

Supreme Court of Arkansas

November 24, 1913

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Bradshaw Rhoton & Helm, for appellant.

1. The act was not passed by the Legislature, because that body failed to comply with the constitutional requirements Constitution, art. 5, § 21; Id., § 11; 33 Ark. 17; 77 Ark. 565; 22 L. R. A. (N. S.) 1089.

The notes of the stenographer of the house can not be used to impeach a bill by showing that action on it was indefinitely postponed. 29 Okla. 233.

In order to impeach an enrolled bill, the recitals of the legislative journals can not be contradicted or altered by memoranda made by legislative officers. 160 Ala. 181; 119 Ala. 484, 72 Am. St. Rep. 928; 20 Col. 1; 20 Fla. 407; 76 A 370.

An enrolled bill may be impeached by the records of the Secretary of State by showing nonconcurrence of one house with an amendment contained in the enrolled bill where the journal does not show its contents. 72 Ark. 565.

The journal must show affirmatively that the bill passed. 36 Cyc. 957; 30 S.W.426; 19 Ark. 250.

The requirement that each house shall keep a journal of its proceedings, means that the journal shall show all proceedings and all steps taken in the passage of every bill. 51 L. R. A. 396; 38 Id. 74-88; 9 Id. 404; 40 L. R. A. (N. S.) 7-38.

2. The act is unconstitutional because it gives arbitrary and unlimited power to the Insurance Commissioner. See sections 4, 5 and 6 of the act. Cooley's Const. Limitations, § 33; Const. Ark., art. 2, § 21; 8 Cyc. 866; 25 L. R. A. 621; 68 N.Y.S. 1067; 34 P. 461; Tiedeman, Limitations of Police Power, § 194.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The court has the power and it is its duty to correct mere clerical errors appearing in legislative journals. 103 Ark. 109-113; 44 Ark. 536-549; 43 W.Va. 523-527; 2 Minn. 33, 36, 39; 26 Kan. 731; 41 Kan. 200-204.

2. Building and loan associations are included and come within the operations of the act. Acts 1913, p. 904; 218 U.S. 563; 219 U.S. 128.

3. The act is not unconstitutional by reason of the power it gives the Insurance Commissioner 148 F. 514-523; 131 Mich. 250; 136 S.W.938.

HART J. MCCULLOCH, C. J., and SMITH, J., dissent.

OPINION

HART, J.

This is a proceeding instituted in the chancery court by the Mechanics Building & Loan Association against the Auditor of State to prevent him from requiring plaintiff to give the bond provided by section 18 of Act 214, approved March 24, 1913, as a prerequisite to doing business in the State of Arkansas. The chancellor sustained a demurrer to the complaint and, from the decree dismissing its bill for want of equity, the plaintiff has prosecuted an appeal to this court.

Counsel for plaintiff insist that the act in question was not passed by the Legislature because it did not conform to the constitutional requirements. Article 5, section 21, of our Constitution, provides, in substance, that on the final passage of all bills the votes shall be taken by yeas and nays and entered on the journal. Our court has held that this provision of the Constitution is mandatory, and that the failure to comply with it on the final passage of the bill by the Legislature, as a rule, renders the law void. State v. Bowman, 90 Ark. 174, 118 S.W. 711, and cases cited; Butler v. Kavanaugh, 103 Ark. 109. It has also held that where the journals affirmatively show that one branch of the Legislature did not concur in an amendment adopted by the other, an enrolled bill containing such amendment will be void. Rogers v. State, 72 Ark. 565, 82 S.W. 169.

Act 214 is contained in the session laws of 1913, page 904. In regard to the passage of the bill, the records of the Secretary of State show the following:

The bill was duly signed by the presiding officer of the Senate and of the House and attested by the secretary of each house. It was duly enrolled, approved by the Governor on March 24, 1913, and deposited in the office of the Secretary of State. The bill originated in the Senate and, after it was passed in that body, was transferred to the House. There, certain sections of the bill were amended, and the bill, as amended, passed the House. It was then returned to the Senate, and the subsequent action on the bill there is as follows: The Senate journal, containing the proceedings of February 24, 1913, shows the following:

"Senate Bill No. 3, was called up for the purpose of concurring in House amendments. The amendments were read twice and adopted. The bill as amended was referred to the Engrossing Committee and made special order for Wednesday, 26th." On the back of the cover of the bill is endorsed, "S. O.--2-25--A. R. J. T. J. Terral, Secy."

The Senate Journal of the proceedings of February 25, 1913, shows the following:

"Senate Bill No. 3 was called up for the purpose of concurring in the House amendments. The secretary called the roll and the following voted in the affirmative (naming them, 30).

"Nays, none.

"Absent and not voting (naming the Senators, 6). So the amendments were concurred in."

Under this state of the record, it is the contention of counsel for plaintiff that the act, as it appears in the public acts of the General Assembly, was never passed, according to the Constitution, and, therefore, has not become a law. That is to say, they contend that the journal of the Senate shows that the bill, as amended by the House, never passed the Senate; but we can not agree with their contention. It is true that we have held that a record entry of the legislative journal can not be contradicted by endorsements made on the original bill by an officer of either house, but we have also held that we have the right to resort to any source of information filed in the office of the Secretary of State, in accordance with the statute, to arrive at a correct determination of what the journal shows. In the case of Scott v. Clark County, 34 Ark. 283, the court said:

"The act in question is on file in the office of the Secretary of State with the signatures, in due form, of the Speaker of the House, the President of the Senate, and the Governor of the State. This is sufficient prima facie to advise the courts of the existence of such a law, and to direct citizens and others in the regulation of their rights and conduct. When an act has actually received the intelligent assent of both houses of the General Assembly, been approved by the Governor, and published by authority, there should be shown a clear and palpable disregard of constitutional directions in its passage, to induce the courts to hold it for naught. The public are not expected, in the transaction of ordinary business, to look behind the acts enrolled and signed; and it would lead to great wrong and inconvenience, as well as destroy all confidence in legislation, if the courts should be hypercritical in supervising the forms and proceedings of the lawmaking bodies, and setting aside their acts for slight causes." See also Chicot County v. Davies, 40 Ark. 200.

In the case last mentioned, the court re-affirmed the rule of our earlier cases that the enrolled bill is not conclusive, and said that it could be impeached by the legislative journal. It also held that where there is a variance between the manuscript and printed minutes of the legislative proceedings, the manuscript will prevail. In discussing the subject, the court said: "To make all legislation ultimately depend on the fidelity with which a journal clerk has made his entries, is, in the expressive language of Judge Black, in Thompson's case, 9 Opinions of Attorneys General, 1, to render the laws as uncertain as the terms of a horse trade. We fear to turn loose a principle which might devour the whole statute book."

The effect of this holding is that, in order to overcome a prima facie presumption of regularity accompanying an enrolled bill so as to render it void, the showing by the legislative journals in disregard of the constitutional requirements must be clear and convincing. It is the invariable practice in this State that bills shall be signed and attested respectively by the presiding officer and secretary of each body; that it shall then be enrolled under the direction of a committee of both houses appointed for that purpose. It is then transmitted to the Governor for his action and, when approved by him, is deposited in the office of the Secretary of State, together with all the records books, papers and rolls of the General Assembly. In concurring in amendments, the Constitution does not require that it shall be done by yea and nay vote, and that the same shall be entered upon the journal. State v Corbett, 61 Ark. 226, 32 S.W. 686. It has also been the general practice of legislative bodies in this State, when concurring in amendments, to do so by viva voce vote except when a division is called for, and then the members voting for or against the amendments are counted and the result declared by the presiding officer of the body. As we have already seen, the Senate journal shows that the House amendments were concurred in on the 24th day of February, 1913, and that the bill was made a special order for the 26th inst. The Senate journal of the 25th inst. shows, when read literally, that the bill was called up, for the purpose of concurring in the House amendments, and that the roll was called, and the names of those voting in the affirmative and negative were duly recorded on the journal. After the date of the 25th of February, 1913, the journal does not show that any further action was taken in regard to the passage of the bill. So, when all these records that ...