State v. Porter

• Decision Date: 29 November 1905
• Citation: 145 Ala. 541,40 So. 144
• Parties: STATE EX REL. BROWN v. PORTER ET AL.
• Court: Alabama Supreme Court

40 So. 144

145 Ala. 541

STATE EX REL. BROWN v. PORTER ET AL.

Supreme Court of Alabama

November 29, 1905

Rehearing Denied Jan. 30, 1906.

Appeal from Circuit Court, Cleburne County; John Pelham, Judge.

"To be officially reported."

Proceedings by the state, on the relation of W. A. Brown, against W. G Porter and others. From a decree for defendants, relator appeals. Affirmed.

Whitson & Dryer and W. L. Martin, for appellant.

Knox Acker & Blackmon, Merrill & Merrill, and R. L. Evans, for appellees.

ANDERSON J.

The appellants contend that the act under which the appellees the respondents in the lower court, were appointed (Gen. Acts 1903, p. 117), was not constitutionally adopted, it being a Senate bill and being amended in the House, and that while the amendment adopted by the House, together with the names of those voting for and against it, were entered at length on the journal of the House that section 64 of the Constitution of 1901 requires that the amendment, together with the names of the members voting for and against the concurrence in the amendment, should be recorded at length on the Senate Journal. The Senate Journal (pages 591 and 592) shows that Senate Bill 173, which became the act in question, was sent to the Senate with an amendment. On page 592 of the journal we find this entry: "Senate concurred in the House amendment, Senate Bill 173, which was voted on by 26 yeas and nays none." Following this were the names of the members voting for concurrence. The amendment itself is not set out on the Senate Journal.

The plaintiff insists that the opinion of this court in the case of Board of Revenue v. Crow (Ala.) 37 So. 473, holds that the amendment itself must be set out at length on both journals. In that case the following is the language used by the court: "Now, it must not only affirmatively appear upon the journals that provisions of an act which were put into the bill by amendment received the concurrence by yea and nay vote of each house, but it must also appear upon the journals precisely what those amendments were. The purpose of the convention in the ordination of that section manifestly was that only amendments which are set out on the journals and which the journals affirmatively show received the sanction of each house, should be incorporated in the bill; and the provisions of that section are apt to the effectuation of that purpose." It is true that in the paragraph above quoted this court uses the plural in speaking of journals, but it will be noted that the court in speaking of amendments in general, and not of any particular amendment by one house of a bill originating in the other. It was not the intention of this court to say, in view of the plain language of the Constitution, that the amendment itself must be recorded in both journals. The language of the Constitution, it seems to us, is too plain to argue for any such construction. That part of section 64 relative to the question at issue is as follows: "No amendment to bills shall be adopted except by a majority of the house wherein the same is offered, nor unless the amendment with the names of those voting for and against the same shall be entered at length on the journal of the house in which the same is adopted, and no amendment to bills by one house shall be concurred in by the other, unless a vote be taken by yeas and nays, and the names of the members voting for and against the same be recorded at length on the journal." This section of the Constitution requires two entries to be made upon the journal of the house offering the amendment, viz.: (1) The amendment itself; (2) the names of those voting for and against the same. But when it comes to the matter of concurrence it requires only one entry to be made, viz., the names of the members voting for and against the same. If the constitutional convention intended to require that the amendment itself must be entered at length on the journal of both houses, it certainly did not use the language "to the effectuation of that purpose." They used language indicating clearly that the amendment need only be entered on the journal of the house in which the amendment was offered, and upon that journal only.

There is no merit in the contention of appellant that it would be violative of the Constitution to locate the courthouse at Heflin, because within less than seven miles of the county line. Section 40 of the Constitution relates to the changing of county lines or...