State v. Algood

• Decision Date: 31 December 1888
• Citation: 10 S.W. 310,87 Tenn. 163
• Parties: State ex rel. Whitson, Dist. Atty., v. Algood, Dist. Atty.
• Court: Tennessee Supreme Court

10 S.W. 310

87 Tenn. 163

State ex rel. Whitson, Dist. Atty., v. Algood, Dist. Atty.

Supreme Court of Tennessee.

December 31, 1888

Appeal from chancery court, White county; T. W. WADE, Special Chancellor.

Snodgrass & Smiths, for appellant.

Murray & Spurlock and F. M. Smith, for respondent.

LURTON J.

The relator was elected district attorney for the Sixth judicial circuit at the general election of August, 1886. White county, which at the date of his election was one of the counties composing his circuit, has by act of March 19, 1887 been taken out of the Sixth, and placed in the Fifth, circuit, of which defendant, A. Algood, is the district attorney. This bill is filed for the purpose of determining the validity of the act by which this change has been made. The defendant, Algood, demurred to the bill. The demurrer was overruled, and defendant, by permission of the chancellor, has appealed from the decree overruling the demurrer.

The first objection made by the bill to the validity of the act changing White from the one circuit to the other is that the title of the act does not indicate the character of the amendment of the existing law, and that it is therefore void under section 17, art. 2, of the state constitution, which declares that "no bill shall become a law which embraces more than one subject, that subject to be expressed in the title." The title to the act in question is as follows: "An act to amend an act of the extraordinary session of 1885, passed June 11, and approved June 12, 1885, entitled 'An act to divide the state of Tennessee into judicial circuits and chancery divisions, and provide for the administration of justice and equity in the circuit and chancery and other inferior courts of this state, and to fix the time for holding the terms of said chancery, circuit, and other courts."'

The criticism is, that the title does not indicate the character of the proposed amendment. This is not necessary, if in fact the amendment is germane to the original act, and embraced within the title of the original or amended act. In such case, the title of the original act being made a part of the title of the amendatory act, the particulars of the amendment need not be embraced by the title. In the case of Hyman v. State, 9 S.W. 372, (decided at Knoxville, September term, 1888,) we, upon full consideration, held "that it is not important that the title of an amendatory act shall do more than recite the title or substance of the act amended, provided the amendment is germane to the subject of the original act, and is embraced within the title of such amended act." The amendment is undoubtedly germane to the subject of the original act, as indicated by its title. There is nothing in this objection. The title of the amendatory act is sufficient.

It is next urged that this act was never in fact passed by the general assembly in the manner prescribed by the constitution. It appears from the journal of the senate that the bill as originally introduced was a senate bill, and that it passed the senate on three several readings, and was then transmitted to the house. The house journal shows it to have passed its first and second reading as senate bill No. 262, and that it was then referred to a committee, who reported it back, and that, "by unanimous consent, senate bill No. 262, to fix the time of holding the court in the fourth chancery division, was taken up. The amendment offered by Mr. Hill was adopted, and the bill passed third reading without call of the roll." The amended bill was returned to the senate, and the senate journal shows that the amendment was non-concurred in on a call of the ayes and noes by a vote of 11 ayes and 11 noes, and that on the same day a motion to reconsider this vote was entered. It further appears that on a subsequent day a second motion to reconsider this adverse vote was entered. The journal is silent as to the ultimate disposition of these motions to reconsider. But the journal does recite that upon a day subsequent to both of these motions the speaker of the senate, in open session, announced that he had signed this bill. Subsequently the act was approved by the governor, and it is found among the published official acts of the legislature. The complainant insists that from the journal of the senate, as above recited, it is affirmatively shown that this senate bill No. 262 never did pass the senate after it had been amended by the house, and that therefore the act is void. In the case of Brewer v. Huntingdon, 2 Pickle. 737, 9 S.W. 166, we held that where it affirmatively appeared from the journals of the legislature that an act had not been passed in the manner required by the constitution, that the presumption arising from the fact that the journals showed that the bill had been signed by the speaker in open session would not overcome the affirmative proof from the journal that in fact the bill had been defeated.

The case under consideration differs from the case just cited, in this: that the same journal which records the defeat of the amended bill shows a motion to reconsider this adverse vote. Before the bill could be finally disposed of, it...