Perry v. State

• Decision Date: 16 June 1919
• Docket Number: 40
• Citation: 214 S.W. 2,139 Ark. 227
• Parties: PERRY v. STATE
• Court: Arkansas Supreme Court

214 S.W. 2

139 Ark. 227

PERRY v. STATE

No. 40

Supreme Court of Arkansas

June 16, 1919

Appeal from Mississippi Circuit Court, Chickasawba District; R. E L. Johnson, Judge; affirmed.

Judgment affirmed.

W. J Driver, for appellant.

The bill passed by both Houses is not the bill signed by the Governor. The records are conclusive of this. The courts are the judges and must determine whether the act ever became a law. 103 Ark. 48. See also 19 Ark. 256; 44 Id. 548; 90 Id. 176; 32 Id. 414; 34 Id 263; 6 Wall. 499; 40 Id. 221; 32 Id. 496; 72 Id. 565; 41 Id. 475; 33 Id. 17; 40 Id. 200; 41 Id. 475; Cooley Const. Lim., 135; 49 Id 333. There is a variance between the bill passed and the one signed. Section 6 provides that the act shall not be effective until voted on at a special election had and a majority of votes cast for its adoption. In enrolling the act certain provisions were left out and it was so signed by the Governor. 7 Wyo. 166. See Const., art. 5, § 12; 51 Am. Dec. 611; 47 Am. St. 821; 72 Id. 928; 75 Id. 889; Const., art. 5, § 22; 110 Ark. 269; 90 Id. 174. See also 29 Ark. 266; 32 Id. 496; 33 Id. 17; 61 Id. 109. The act is unconstitutional and void. Cases supra; 49 Ark. 325; 71 Id. 527.

John D. Arbuckle, Attorney General, and Robert C. Knox, Assistant, for appellee.

The bill passed was the same bill signed by the Governor; the bill and its indorsements, as well as the records and journals of both Houses, show this. 40 Ark. 200; 131 Id. 295; 27 Id. 278. See also 131 Id. 294; 90 Id. 174; 110 Id. 269. The judgment below is correct and it should be affirmed.

C. M. Buck and P. A. Lasley, of counsel for appellee, join in the brief for appellee, contending that the judgment is right and should be affirmed. Citing cases supra.

HUMPHREYS J. SMITH, J., dissenting.

OPINION

HUMPHREYS, J.

Appellant was indicted, tried and convicted, in the Chickasawba District of the Mississippi Circuit Court, for permitting a cow to run at large contrary to the provisions of Act No. 154, Acts of the General Assembly of the State of Arkansas of 1919, approved March 1, 1919.

Appellant defended on the ground that the act, as approved by the Governor, was not the same act passed by the two Houses of the Legislature.

The cause was submitted to the court, sitting as a jury, upon the following agreed statement of facts:

"That the defendant (appellant) John Perry did, on the first day of April, 1919, knowingly and intentionally turn out and permit to run at large in that part of the Chickasawba District of Mississippi County, Arkansas, lying east of Little River, one cow, in violation of the terms of Act 154 of the General Assembly of Arkansas, approved March 1, 1919.

"It is further agreed that for the purpose of testing the validity of said act, this cause shall be submitted to the court, a jury trial being waived, that all records of both Houses of the General Assembly shall be considered as offered in evidence, and that the record of journal entries of the Senate, certified to by Ira C. Langley, secretary of said body, is a true and correct copy of the journal of said body; also the records certified to by H. G. Combs, chief clerk of the House of Representatives, is a true and correct copy of said journal record of said House; also that all of said records, including the original enrolled bill as now filed with the Secretary of State and the original bill as introduced, together with the indorsements thereon, are hereby made a part of the record of this case."

The original bill, the act as signed, the journals and indorsements on the original bill were introduced in evidence under the terms of the stipulation.

The court sustained the validity of the bill, found the defendant guilty, assessed his fine at $ 5 and rendered judgment in accordance with the findings, from which findings and judgment, an appeal has been duly prosecuted to this court.

It is insisted by appellant that the bill passed by the Legislature provided for an election and a majority vote of the electors in the district before the bill should become effective, and that the bill approved by the Governor and filed in the Secretary of State's office does not contain such provision; in other words, that the bill signed by the Governor and filed in the Secretary of State's office was not the bill passed by both Houses of the Legislature. Act No. 154, Acts 1919, is the same act as Senate Bill No. 64. The challenged act and Senate Bill No. 64 are exactly alike. It appears, however, from the entries in the Senate journal and indorsements on the original bill that the following amendment was adopted and ordered engrossed on January 21, 1919, and reported as engrossed on January 23, 1919, to-wit:

"Amend section 6 of Senate Bill No. 64 by adding at the close of section 6, the following: Provided, this act shall not become effective until it is voted on at a special election to be called by the county judge of said county, and receives the votes of the majority of those voting at said special election. And said special election shall be called by the county judge at least thirty days prior to the first day of September, 1919, and notice of said special election shall be published in some newspaper in each district in said county for at least thirty days prior to the date fixed by said county judge for holding said election.

"And provided further, that the expense of holding said election shall be paid out of the general fund of said county, and the judges and clerks who shall hold said election shall be selected by the sheriff, circuit clerk and county judge of said county."

It also appears by an entry in the Senate journal and an indorsement on the original bill that the bill was read the third time and passed on January 24, 1919. It is argued from these entries on the journal and indorsements on the bill that the engrossed bill, incorporating the amendment aforesaid, was the bill that passed the Senate and House, and that the bill in its original form, as approved and signed by the Governor was not the same bill passed by the two Houses of the Legislature. This conclusion would be true if the Constitution of the State required that every step in the course of the passage of bills or amendments thereto should be recorded in the journals or indorsed on the bills. The Constitution, however, makes no such exacting requirements. Vinsant v. Knox, 27 Ark. 266; Chicot County v. Davies, 40 Ark. 200; Harrington v. White, 131 Ark. 291, 199 S.W. 92. This court has adopted the following rule with reference to presumptions in favor of the validity of bills which have been signed by the Governor and deposited in the office of the Secretary of State: "An act of the Legislature signed by the Governor and deposited with the Secretary of the State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the record of the General Assembly." Harrington v. White, 131 Ark. 291, 199 S.W. 92. In support of the rule thus announced, the court in that case cited Chicot County v. Davies, 40 Ark. 200; State v. Corbett, 61 Ark. 226, 32 S.W. 686; State v. Bowman, 90 Ark. 174, 118 S.W. 711; Mechanics' Bldg. & Loan Assn. v. Coffman, 110 Ark. 269, 162 S.W. 1090. It is true that the record in the instant case affirmatively shows that the amendment in question was offered, adopted and ordered engrossed on January 21, 1919, and that on January 23, 1919, the bill was reported "correctly engrossed." The next entry in the journal and indorsement on the bill is that it was read a third time and passed on January 24, 1919. It does not appear affirmatively that the bill, as engrossed, was read a third time and passed. The indorsement appears on the original bill and not on an engrossed bill. After being engrossed, it was within the province and power of the Senate to have ordered the bill placed back on its second reading for amendment and to have receded from the amendment engrossed into the bill, or to have stricken the amendment from the bill, and, should such course have been taken, it would not have been necessary to its validity to have entered these steps, concerning the amendment, on the journal. The silence of the record in this regard would not conflict with the presumption that such course was pursued by the Senate. The silence of a legislative journal on matters not required to be entered on the journal can not conflict with the presumption of the regularity of the passage of a bill. It is only in matters where the journal does speak, or where it is required to speak, that it could conflict with such presumption. In the case of Harrington v. White, 131 Ark. 291, 199 S.W. 92, this court indulged the presumption of the regularity of the passage of a bill where the House and Senate journals were in conflict as to the inclusion of four counties in an exemption clause contained therein. The House journal recited that the four counties in question were included in the exemption by a Senate amendment. The Senate journal was silent on this point. There was no constitutional requirement that the amendment including the four counties should be entered on the journal, and the court said in this case: "The mere silence of the journal of the Senate as to the inclusion of certain counties in the amendment to the exemption clause is not sufficient to overcome the presumption of regularity;" * * * meaning, of course, the presumption of regularity in the passage of the bill growing out of the fact that it had been signed by the Governor and deposited with the Secretary of State. Likewise, this court presumed the regularity of the passage of a bill, on account of it being signed by the Governor and deposited with the Secretary of State, where the journal...