Smith v. Mitchell

• Decision Date: 16 June 1911
• Citation: 72 S.E. 755,69 W.Va. 481
• Parties: SMITH et al. v. MITCHELL.
• Court: West Virginia Supreme Court

72 S.E. 755

69 W.Va. 481

SMITH et al. v. MITCHELL.

Supreme Court of Appeals of West Virginia.

June 16, 1911

Submitted June 15, 1911.

On Rehearing, Nov. 25, 1911.

Syllabus by the Court.

A bill was introduced in the House of Delegates as House Bill No 161, and the bill was introduced in the Senate as Senate Bill No. 99. The House bill was read duly and passed by the House and reported to the Senate. The Senate bill was read twice on different days, and on second reading the Senate substituted for it the House bill under the name of House Bill No. 161 and under that name it was read on another day and passed by the Senate. The bills were identical in title and matter. The bill passed by the Senate has been read in it three times as required by the Constitution.

After a bill has been passed by the House of Delegates and reported to the Senate, and it has passed the Senate and been by its order sent to the House with report of its passage by the Senate, and the House refuses to return it to the Senate, the Senate cannot reconsider the vote passing the bill, as it has no possession or control over the bill, and its vote to reconsider will not impair the validity of the act.

Poffenbarger J., dissenting.

Petition by Homer Smith and others for mandamus to R. E. Mitchell clerk of the County Court of Mason County. Denied.

Brown, Jackson & Knight, Mollohan, McClintic & Mathews, John L. Whitten, and Somerville & Somerville, for petitioners.

Wm. M. O. Dawson, T. C. Townsend, and Rankin Wiley, for respondent.

BRANNON J.

Until the enactment of chapter 85 of the Acts of the Legislature of 1911, the council of the town of Point Pleasant had sole and exclusive power to grant license to sell spirituous liquors, without regard to the county court of Mason county; but that act took away this council power by the provision that "No license to sell at wholesale or retail spirituous liquors, wine, porter, ale, beer or drinks of like nature shall be granted by the council of said town. Such license shall only be granted by the county court in the manner prescribed by law." Upon the claim that this act is void, Homer Smith obtained from the town council a permit to obtain such a license, and, armed with this council order, he applied to R.

E. Mitchell, clerk of the county court, for a certificate of such license; but Mitchell refused to recognize the order of the council, and refused to issue the certificate requested. Thereupon Smith applied to the Supreme Court for writ of mandamus to compel Mitchell to issue to him the certificate to obtain such license.

In the argument before this court of this much contested case two grounds were urged for the contention that the act of 1911 is null and void, leaving still in force the former statute giving the council sole power to grant such license. One ground is that the bill was not read in the Senate on three days, as the Constitution requires; and the second ground is that the bill never finally passed the Senate so as to become a law.

As to the claim that the bill was not read in the Senate on three days, the facts are: That a bill called "Senate Bill No. 99" was introduced into the Senate, and an exactly similar bill called "House Bill No. 161" was introduced into the House of Delegates. That House Bill 161 was regularly read and passed by the House, and reported to the Senate as passed by the House, is not questioned. Senate Bill 99 was read twice in the Senate. On its second reading the Senate substituted the House bill for the Senate bill, and under the name of House Bill No. 161 it was ordered to be read a third time, and on February 18th was read a third time and passed with its title. As stated, the title of the two bills were the same, the bodies the same, literally. For the purpose of the requirements that a bill shall be read three times, we may say that these bills are one, because they have the same title and the same enacting language. The purpose of this provision of the Constitution is to inform legislators and people of legislation proposed by a bill, and to prevent hasty legislation. The two readings of the Senate bill and the third reading of the substituted House bill did this, just as effectually as if the House bill had not been substituted for the Senate bill, and the Senate bill had been retained and read a third time and passed. Shall we give this provision so rigid a construction as to go beyond its purpose and defeat legislation? There is nothing so special in a constitutional provision as to justify this.

Will it be suggested that this was another bill, a substitute, not Senate Bill 99, and that this substitute should have been read three times? I would answer that we can hardly call it a substitute because it is identical in matter with Senate Bill 99. But, suppose even that the bills were not so identical, still the substitute bill, if so germane to the original bill as to be a proper substitute, would not have to go back and be read three times. A substitute is an amendment. "When a bill has been read and referred to a committee who have reported a substitute, having the same general principles, it is not necessary to the valid enactment of the substitute that it should be considered an original bill and read three times on the three different days." 26 Am. & Eng. Ency. L. 540. When a bill is amended, it does not call for re-reading. People v. Thompson (Cal.) 7 Pac. 142; 36 Cyc. 952; State v. Dillon, 42 Fla. 96, 28 So. 781; Cleland v. Anderson, 66 Neb. 261, 92 N.W. 306, 96 N.W. 212, 98 N.W. 1075, 5 L.R.A. (N. S.) 136.

Capito v. Topping, 65 W.Va. 588, 64 S.E. 845, 22 L.R.A. (N. S.) 1089, written by Judge Poffenbarger, is pointed authority for this. A bill having same title as act No. 40 of 1894 was introduced in the Senate as S. B. No. 23, read by its title, placed on the calendar for second reading, subsequently taken up upon second reading, read by title, and referred to a committee. The committee reported its action on Senate Bill No. 23, giving the exact title of the same. The committee reported the bill favorably by substitute. The bill was read by its title. Substitute adopted in lieu of original bill, and became S. B. No. 90. Bill as reported read by title. Subsequently S. B. No. 90 reported by the committee was put on its third reading, and read in full, then passed. Held, that the contention that S. B. No. 90 should have been considered an original bill, and read in the Senate three times on different days, once in full, was not well founded. Board v. Fowler, 50 La. Ann. 1358, 24 So. 809.

Take the case of Miller & Gibson v. State, 3 Ohio St. 475. "A bill after being read twice in the Senate was committed to a select committee, who reported it back with an amendment, to wit, 'Strike out all after the enacting clause and insert a new bill.' The bill as amended passed the Senate and House and became a law. The claim was made that the 'new bill' had but two readings in the senate." The court said: "When it appears by the journals that a bill was amended by striking out all after the enacting clause, and inserting a 'new bill,' so called, it cannot be presumed that the matter inserted was upon a different subject from that stricken out, especially when the matter inserted is consistent with the title borne by the bill before amendment." The court relied upon a presumption that the substituted bill was the same with the original, and, being so, no three readings were required of the amended bill. In the present case the sameness of the Senate and House bills is apparent. The court further said in Miller & Gibson v. State, supra: "But for argument's sake, let it be admitted that the bill as amended was read but once in the Senate; is the act for that reason void? That, counting two readings before the amendment, and the final reading, the bill was read three times, is conceded, for these readings are shown by the journal, and it is also conceded that in general three readings of an amendment are not necessary. But, inasmuch as the amendment in this case is styled in the journal a 'New Bill,' it is said that three readings were necessary. Why necessary? The amendment was none the less an amendment because of the name given it. It is not unusual in parliamentary proceedings to amend a bill by striking out all after the enacting clause, and inserting a 'New Bill.' When the subject or proposition of the bill is thereby wholly changed, it would seem to be proper to read the amended bill three times, and on different dates; but, when there is no such vital alteration, three readings are not required." That case is strong to show that such sameness dispenses with reading over again; strong to show that two readings of the Senate bill and one of the bill after substitution of the House bill make up three readings.

Nelson v. Haywood, 91 Tenn. 596, 20 S.W. 1, is of same effect. "A bill having been passed regularly by both houses was referred, upon a difference between the two houses as to certain proposed amendments, to a joint committee of conference. The committee reported as follows: 'Your committee of conference, to whom was referred S. B. No. 10, with House amendments, beg leave to report the accompanying bill in lieu of said bill and amendment, in which is embraced substantially all the provisions of both houses. Your committee deem it prudent to propose a bill in lieu, as the original bill has been much disfigured by amendment, interlineations, and erasures. Your committee asks that the bill offered be accepted and passed.' This redrafted bill of the committee of conference contained fewer sections and annulled some of the proposed amendments; the committee substituting compromise provisions therefor. The committee's report was concurred in by...