Road Improvement District No. 16 v. Sale

• Decision Date: 10 July 1922
• Docket Number: 119
• Citation: 243 S.W. 825,154 Ark. 551
• Parties: ROAD IMPROVEMENT DISTRICT NO. 16 v. SALE
• Court: Arkansas Supreme Court

243 S.W. 825

154 Ark. 551

ROAD IMPROVEMENT DISTRICT NO. 16 v. SALE

No. 119

Supreme Court of Arkansas

July 10, 1922

Appeal from Woodruff Chancery Court, Northern District; J. E Martineau, Chancellor; reversed.

Decree reversed and cause remanded.

H M. Woods, Roy D. Campbell and Coleman, Robinson & House, for appellants.

The finding by the court that the title to the act had been changed by substituting the word "embrace" for the word "abolish," and was a material variation in the bill, was not justified by the record. 44 Ark. 549; 110 Ark 273; 34 Ark. 283; 40 Ark. 200.

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. 61 Ark. 226.

Before a bill, which has been duly enrolled, shall be declared invalid, the record must show conclusively that the constitutional requirements have not been met. 43 W. V. 523; 64 Am. St. Rep. 878; 26 Kan. 723; 139 Ark. 598.

In determining whether an act has been properly passed, the court will not look beyond the records of the General Assembly. 72 Ark. 565; 40 Ark. 200; 131 Ark. 291; 139 Ark 227.

While the title of an act may be looked to to ascertain its meaning, it is no part of the act and is not controlling in its construction. 124 Ark. 476; 130 Ark. 505.

While the journals furnish evidence of legislative proceedings so far as they go, yet courts are not bound by what appears therein. 40 Ark. 215.

It is not necessary that the vote on amend-merits be recorded. Const. 1874; 61 Ark. 230; 130 Ark. 276; 61 Ark. 227; 110 Ark. 269; 4 Neb. 503; 11 Ind. 424.

R. M. Hutchins and Mehaffy, Donham & Mehaffy, for appellees.

The constitutional provision limiting the scope of legislation at special sessions is mandatory, and any law enacted not embraced within the Executive's call is void. Jones v. State, 25 R. C. L. 806; Lewis, Sutherland, Statutory Construction, 2nd ed. sec. 65, p. 11.

The Legislature cannot indirectly do that which it is prohibited from doing directly. 5 Ark. 412.

The act does not fall within the range of the subjects submitted by the Governor in his proclamation. 19 S.W. 530. The approval of the act by the Governor could not make it valid. 110 Mo. 286; 58 Tex. Cr. R. 209.

The duty having been placed on the Governor to specifically name the legislation in which the General Assembly was engaged when called together in special session, that duty can alone be dischaged by him. 107 S.E. 765; 25 R. C. L. sec. 56; 110 Mo. 286; 19 S.W. 530; 15 L. R. A. 847; 40 L. R. A. (N. S.) 28; 28 Okla. 94; 113 P. 921; 58 Tex. Cr. R. 209; 127 S.W. 208; 130 Cal. 82; 128 Tenn. 456.

Duly enrolled acts, properly authenticated, approved by the Governor and deposited with the Secretary of State as existing laws, are presumed to have been enacted in accordance with constitutional requirements. 3 Nev. 233; 34 S.W. 769; 174 S.W. 1108; 161 S.W. 1006; 187 F. 393.

If a statute is divisible, and is partly unconstitutional, that part may be rejected and the balance upheld; but if it is not divisible, and any part is unconstitutional, the entire statute falls. 25 Ark. 236; 34 Ark. 224; 49 Ark. 110.

Any material change in either house renders it null and void. 72 Ark. 565; 41 Ark. 471; 90 Ark. 174; 103 Ark. 109; 132 Ark. 240.

The courts will take judicial knowledge of enrolled bills as found in the office of the Secretary of State. 72 Ark. 563; 132 Ark. 240; 90 Ark. 174; 103 Ark. 109; 130 Ark. 503.

The act was passed in violation of sec. 26, art. 5 of the Const. 141 Ark. 140; 48 Ark. 82; 8 Cyc. 762; 93 Ark. 339; 156 Pa. 1121.

MCCULLOCH C. J. HART, J., dissents.

OPINION

MCCULLOCH, C. J.

Road Improvement District No. 2 of Woodruff County was formed by order of the county court of that county, pursuant to the general statute authorizing the formation of road improvement districts (Crawford & Moses' Digest, sec. 5399 et seq.), and progress seems to have been made in preparing for the construction of the improvement, though it is not shown in the pleadings or proof in the present case to what extent the proceedings progressed.

The General Assembly, at the extraordinary session convened in January, 1920, pursuant to the proclamation of the Chief Executive, enacted a special statute bearing the title as follows: "An act to embrace Road Improvement District No. 2 of the Northern District of Woodruff County in, and to create Road Improvement District Number 16 of, Woodruff County, and for other purposes." The first section of that statute reads as follows: "That all assessments now levied on lands in Improvement District Number 2 of the Northern District of Woodruff County are hereby set aside and revoked, and that the territory of Road Improvement District Number 2 be and is hereby embraced in and made a part of the hereinafter created Road Improvement District Number 16 of the Northern District of Woodruff County; and that said District Number 16, hereinafter created, is benefited by the preliminary work, estimates and surveys made on account of District Number 2, and that District Number 16 shall assume the burden of payment of all preliminary expenses in the matter of formation, surveys, estimates, fees, etc., of District Number 2, and assessments are hereby authorized to cover the payment of said benefits by said hereinafter created District Number 16; and the commissioners hereinafter appointed shall have control, as provided by law, over all the road improvements and territory herein embraced in Road Improvement District Number 16."

The subsequent sections designated the boundaries of the district, specified the road or roads to be improved, named the commissioners, and contain other provisions with reference to assessing benefits, levying taxes, borrowing money and constructing the improvement.

Appellees are residents and owners of real property within the boundaries of the old district as well as the new district created by the special statute above referred to, and they instituted this action in the chancery court of Woodruff County to restrain the commissioners of Road Improvement District No. 16 from proceeding under the statute. The validity of the special statute creating Road Improvement District No. 16 is assailed on the grounds that it was not legally enacted, in that the bill was changed without authority during its progress through the House of Representatives; that it was not embraced within the Governor's proclamation for the extraordinary session, and that notice of the introduction of the bill was not given for the length of time required by the Constitution. The points of attack upon the validity of the statute will be discussed in the order in which they are made.

The charge that the bill was changed without authority during its passage through the House is sought to be established from inspection of the original bill, with indorsements thereon, as it now appears on file in the office of the Secretary of State. It is shown by the inspection that the first page, which is typewritten, is in different type from that of the other pages of the bill and on different kind of paper. The bill cannot be stricken down on this ground, for the fact that one of the pages appears in different typewriting and on a different kind of paper does not overcome the presumption of the regularity of its introduction and passage through the two Houses of the General Assembly. The rule is firmly established in this State that an enrolled statute "signed by the Governor and deposited with the Secretary of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly," etc., and that this presumption is conclusive "unless the records of which the courts can take judicial knowledge show to the contrary." State v. Crowe, 130 Ark. 272, 197 S.W. 4; Harrington v. White, 131 Ark. 291, 199 S.W. 92; Perry v. State, 139 Ark. 227, 214 S.W. 2; Booe v. Sims, 139 Ark. 595, 215 S.W. 659; Booe v. Road Imp. Dist. 141 Ark. 140, 216 S.W. 500.

The further inquiry then presents itself whether there is anything appearing upon the preserved records of the General Assembly which overcomes the presumption arising from the enrolled statute in the office of the Secretary of State. We take notice of these records (Butler v. Kavanaugh, 103 Ark. 109; Mechanics' Bldg. & Loan Assn. v. Coffman, 110 Ark. 269, 162 S.W. 1090), but, in addition to that, counsel have brought into the record certified copies of all the journal entries and a copy of the original bill with all of its indorsements.

The contention of appellees is that the title of the bill as introduced and passed in the Senate contained the word "abolish," instead of the word "embrace" as now appears in the original bill and in the enrolled statute, and that this change was made without proper amendment after the bill had been read the first and second times in the House. Counsel rely upon the journal entries of the two Houses to establish this charge.

The Senate Journal recites that Senate Bill No. 4, by Senator Roddy, "An Act to abolish Road Improvement District No 2 of the northern district of Woodruff County in, and to create Road Improvement District Number 16 of, Woodruff County, and for other purposes", was read the first time on January 26, 1920, the rules suspended and read the second time, and made a special order for January 27. The entry on the Senate Journal on January 27, 1920, recites the title of the bill in the same language as in the entry on the previous date. It states that the bill was read the third time and placed on final passage and passed, the aye and nay vote being set forth on the record, showing the affirmative vote of a...