State ex rel. Davis v. Cox

• Decision Date: 21 July 1920
• Docket Number: No. 21611.,21611.
• Citation: 105 Neb. 75,178 N.W. 913
• Parties: STATE EX REL. DAVIS, ATTY. GEN., v. COX ET AL.
• Court: Nebraska Supreme Court

105 Neb. 75

178 N.W. 913

STATE EX REL. DAVIS, ATTY. GEN.,

v.COX ET AL.

No. 21611.

Supreme Court of Nebraska.

July 21, 1920.

Syllabus by the Court.

Act covering consolidated schools (chapter 243, Laws 1919) held constitutional, as not defective in title, and not shown invalidated through failure of proper procedure in enacting.

The Constitution does not require that every step in the course of enacting bills be recorded in the journal, and the enrolled bill, duly authenticated and approved, is prima facie evidence of a compliance with those constitutional requirements in its passage which are not expressly required by the Constitution to be shown on the journal.

The silence of the journal on matters, not expressly required to be entered on the journal record, does not conflict with the presumption of the regularity of the passage of the bill afforded by the enrolled bill; but, in order to destroy the presumption of regularity afforded by it, the journal must clearly, explicitly and unequivocally disclose the irregularity in passage.

The method of substituting an entire new bill by amendment, when the changes by way of amendment are strictly germane to the original, is not unconstitutional, is in accord with universal legislative procedure, and it is unnecessary that a bill, which has been read the first and second time before such amendment,shall be again placed on first and second reading before passage.

The record does not disclose that the bill, with amendments, was not printed before final passage, and the act is not unconstitutional on that objection.

The enactment is not in violation of section 11, art. 3, of the Constitution, providing that no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended be repealed.

The provision of the bill providing an appropriation is invalid, since the bill did not originate in the House, but this provision is not so essential to the entire act that it can be presumed that the Legislature would not have passed the act without it, and therefore does not invalidate the act as a whole.

Original proceeding in quo warranto by the State of Nebraska, on relation of Clarence A. Davis, Attorney General, against Esker M. Cox and others. Action dismissed.

Rose, J., dissenting.

Stewart, Perry & Stewart, Lambe & Butler, of Cambridge, and Clarence A. Davis, Atty. Gen., for plaintiff.

O. E. Shelburn, of Alma, and Peterson & Devoe and Geo. W. Ayres, all of Lincoln, for respondents.

FLANSBURG, J.

Action in quo warranto, commenced in this court, to try the right of the members of the board of education of consolidated school district No. 2 of Harlan county to hold office. The school district referred to and the offices now held by respondents were created under and by virtue of chapter 243, Laws 1919. Relator contends that this act is unconstitutional.

[1] The first objection made is that the bill was amended in one house of the Legislature, that these amendments were not concurred in by the other house, and that, therefore, the two branches of the Legislature did not pass the bill in the same and final form. The legislative journals show that the bill was introduced in the Senate as Senate File No. 261. After being passed by that body and transmitted to the House, it was referred to the committee on education, and on April 10, 1919, reported out of that committee, with recommendation that the bill be amended in two specific particulars. The report was adopted. On April 12, the sifting committee recommended that the bill be placed on the sifting file with “no amendments.” The committee of the whole reported the bill, with recommendation that the “House amendments” be engrossed, and that the bill be placed on the calendar for third reading. No report of the committee on engrossed and enrolled bills is shown, nor is there any further record of any action taken on this bill until on April 14, when it appears that the bill was read the third time and put upon its passage. At that time the Speaker, in the usual form, declared:

“This bill having been read at large on three different days, and the same with all of its amendments having been printed, the question is, shall the bill pass?”

The record further shows the vote taken, and, “a constitutional majority having voted in the affirmative, the Speaker declared the bill was passed and the title agreed to.” The House then reported to the Senate that it had passed Senate File No. 261. In this report there was no mention that any amendments had been made. The bill was enrolled without any House amendments, and the presiding officers of each house and the Governor signed the bill in that form. The bill was not duly enacted, unless it was voted upon and passed by both houses in its final form. Moore v. Neece, 80 Neb. 600, 114 N. W. 767;Cleland v. Anderson, 66 Neb. 252, 262, 92 N. W. 306, 96 N. W. 212, 98 N. W. 1075, 5 L. R. A. (N. S.) 136.

Does it affirmatively and unequivocally appear from the record that the bill was not so passed? In the majority of jurisdictions a bill is conclusively presumed to have been regularly enacted when the enrolled bill, properly authenticated and approved, is filed with the secretary of state, and the courts in those states have no power to look to the legislative records to see whether the constitutional requirements have been complied with. 36 Cyc. 973. We have a more liberal rule in this state. An enrolled bill is only prima facie evidence of a compliance with the constitutional requirements in its passage, and this presumption is rebuttable. If the legislative journals clearly and explicitly contradict the evidence furnished by the enrolled bill, the journals will control. Webster v. City of Hastings, 59 Neb. 563, 81 N. W. 510;State v. Burlington & M. R. R. Co., 60 Neb. 741, 84 N. W. 254;State v. Abbott, 59 Neb. 106, 80 N. W. 499;State v. Frank, 61 Neb. 679, 85 N. W. 956;Stratton v. State, 79 Neb. 118, 112 N. W. 361.

[2] The Constitution does not expressly require that all steps in the passage of a bill shall be spread upon the journals, and, though the Legislature is required to keep journals of its proceedings, an omission to show a step in the procedure in the course of enactment raises no presumption that such step was not taken, except as to those acts which the Constitution explicitly requires shall be shown upon the journal, such, for instance, as yeas and nays on final passage. People v. Illinois State Board of Dental Examiners, 278 Ill. 144, 115 N. E. 852;Perry v. State (Ark.) 214 S. W. 2. Where the journal is silent, therefore, as to such steps not expressly required to be shown, the enrollment, authentication, and approval of the bill will suffice to supply the proof that the step was taken. As said in State v. Frank, 60 Neb. 327, 333, 83 N. W. 74, 75:

“The enrolled bill has its own credentials; it bears about it legal evidence that it is a valid law; and this evidence is so cogent and convincing that it cannot be overthrown by the production of a legislative journal that does not speak, but is silent. Such seems to be the conclusion reached by a majority of the courts; and such, certainly, is the trend of modern authority. To hold otherwise would be to permit a mute witness to prevail over evidence which is not only positive, but of so satisfactory a character that all English and most American courts regard it as ultimate and indisputable.”

Upon examining the history of the statute in controversy, we find that the journal does not explicitly show that the House, on final passage, voted amendments to the bill. It is true that the report of the committee on education proposing amendments was adopted, and that the committee of the whole ordered the “House amendments” engrossed. The proceedings in committee of the whole are not set forth; neither is it shown what the “House amendments” were when the bill emerged from that committee. The journal does not show any report of the committee on engrossed and enrolled bills after this bill had been referred to it, nor does the record set out the bill, or what it contained, when it was finally voted upon. When reported to the Senate, the record does not show that the bill was transmitted with amendments. So far as the record goes, the House may have receded from the proposed amendments before final passage, and passed the bill in its original form--the form in which it was signed and authenticated by the presiding officers of the two houses. There is some indication at least, that this was done, from the fact that, in transmitting the bill to the Senate, no amendments were noted. No significance can be attached to the words of the Speaker, at the time of third reading, to the effect that, “this bill having been read at large on three different days, and the same with all of its amendments having been printed, the question is, shall the bill pass?” for that stereotyped phrase, as the journal shows, is used for all bills put on final passage, whether they carry amendments or not.

The journal record is not clear and complete. It does not affirmatively show that the bill was ever engrossed, with amendments, nor that the House did not recede from proposed amendments prior to the final passage. On the other hand, there is evidence tending to the inference that the amendments were, in fact, withdrawn. There being no clear and unequivocal proof that the House adopted amendments which are not shown in the enrolled bill, the journal record is insufficient to impeach the evidence arising from the enrollment of the bill and the authentication by the presiding officers of the two houses that the bill was duly passed.

[3] Such is the holding in the case of Perry v. State, supra, in a case almost identical with this, and similar rulings are found in State v. Dean, 84 Neb. 344, 121 N. W. 719, and In re Appraisement of Omaha Gas Plant, 102 Neb. 782, 169 N. W. 725. In the case of Perry v....