Webb v. Carter

Decision Date14 February 1914
Citation165 S.W. 426,129 Tenn. 182
PartiesWEBB et al. v. CARTER et al. STATE ex rel. CARTER et al. v. WOOLLEN. THOMAS et al. v. CANNON et al.
CourtTennessee Supreme Court

Appeal from Chancery Court, Davidson County; John Allison Chancellor.

Suits by W. R. Webb and others against W. M. Carter and others; by the State of Tennessee, on relation of W. M. Carter, and others, against George P. Woollen; and by A. L. Thomas and others against J. H. Cannon and others. From adverse judgments, an appeal was taken. Judgments as stated.

Lansden and Green, JJ., dissenting.

John A Pitts, of Nashville, Foster V. Brown, of Chattanooga, W. H Swiggart, of Union City, Sam Holding, of Columbia, L. J. Rust, of Nashville, and F. M. Thompson, Atty. Gen., for appellants.

Vertrees & Vertrees and John T. Lellyett, both of Nashville, for appellees.


The controlling question in each of the above cases is the constitutionality of chapter 37 of the Public Acts of the year 1913. This act originated in the House of Representatives as House Bill No. 759.

It is admitted that the bill on three readings, and according to the requirements of the Constitution, was passed by the House of Representatives and by the Senate, and was, as required by the Constitution, transmitted to the Governor for his approval. In the attack here made, all the questions raised relate to what happened and what did not happen after the bill reached the Governor. The Governor disapproved the bill, refused to sign it, and returned it with his objections to the house in which it originated within five days after it was presented to him.

Under section 18, art. 3, of the Constitution, the next step required was that the house in which the bill originated should cause said objections to be entered at large upon its journal. This requirement was never complied with. After the requirement last above mentioned, the next step authorized by section 18, art. 3, above, was that the House should proceed to reconsider the bill.

At this point, one of the main controversies in the case originates. On one side, it is insisted that the House of Representatives did proceed to reconsider the bill on April 3, 1913, and that the same was then validly passed, notwithstanding the veto of the Governor. On the other side, it is said that no valid action was taken by that house on that day for the reason that no quorum was present in the House on that day.

The House of Representatives, under the Constitution, was entitled to 99 members, and by article 2, § 11, of the Constitution, it is provided that "not less than two-thirds of all the members to which each House shall be entitled shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized, by law, to compel the attendance of absent members."

To determine the question of fact as to whether a quorum was present in the House on April 3, 1913, it is well settled under our cases that we may look to the journal of the House of Representatives. Gaines v. Horrigan, 72 Tenn. (4 Lea) 610; Telegraph Co. v. Nashville, 118 Tenn. (10 Cates) 8, 101 S.W. 770, 11 Ann. Cas. 824; State ex rel. v. Base Ball Club, 127 Tenn. (19 Cates) 292, 154 S.W. 1151.

The doctrine which obtains in some jurisdictions that an enrolled bill or act of the legislature cannot, as to the validity or constitutionality of its passage, be inquired into by the judicial department of the state, because the enrolled bill is an act of a co-ordinate branch of the government of the state, has never been accepted by this court.

In one of our cases, where it was conceded that the bill under consideration was signed by the Speakers of both houses and by the Governor and duly enrolled and published, it was said that the presumption in favor of its regular passage through all its stages was so strong that the mere failure of the journal of the Senate to show a second reading would not affect the validity of the act, but the failure would be treated as a clerical omission. State v. McConnell, 71 Tenn. (3 Lea) 334.

In another case, it is held that, notwithstanding the fact that the act is verified by the signature of the two Speakers and of the Governor, and has been published by proper authority, "nevertheless, the court may look to the journals of the two houses; and if from them it appears that the bill was not constitutionally passed, the act must be declared void. Such seems to be the decided weight of authority." Gaines v. Horrigan, 72 Tenn. (4 Lea) 611.

In another case, it was said: "The rule is that the journals may be looked to in order to determine whether the bill was in fact passed, but every reasonable presumption must be made in favor of the action of a legislative body acting in the apparent performance of its legal functions. The courts will not presume, from the mere silence of the journal, that the House had disregarded the constitutional requirements, unless where the Constitution expressly requires the fact to appear on the journals." Williams v. State, 74 Tenn. (6 Lea) 553.

In another case, it is said: "We think the rule well settled that, where the journal does not affirmatively show the defeat of the bill, every reasonable presumption and inference will be indulged in favor of the regularity of the passage of the act subsequently signed in open session by the Speaker." State ex rel. v. Algood, 87 Tenn. (3 Pickle) 163, 10 S.W. 310.

In another case, where the question was whether the bill under consideration had been reconsidered in the Senate after having been in the hands of a conference committee from both houses to consider certain amendments, this court, assuming that it was necessary to the valid passage of the bill that it should have been reconsidered in the Senate, said: "The journals show no reconsideration; they are silent on the subject. Such silence will be treated as a case of omission." Nelson v. Haywood County, 91 Tenn. (7 Pickle) 608, 20 S.W. 4.

The cases above quoted from are referred to in Telegraph Company v. Nashville, 118 Tenn. (10 Cates) 8, 9, 101 S.W. 770, 11 Ann. Cas. 824.

In that case, in disposing of the question as to whether the section of our Constitution which provides that no bill shall become a law, until it shall have been signed by the respective Speakers in open session, the fact of such signing to be noted on the journals, this court held that the requirement was directory and not mandatory; but in reaching this conclusion it is clear that the court considered the journals of both the House of Representatives and of the Senate. This court also examined the House and Senate journals for the purpose of determining the constitutionality of the act under consideration in State ex rel. v. Baseball Club, 127 Tenn. (19 Cates) 296, 154 S.W. 1151.

It is to be noted that in neither of the foregoing cases was this court considering article 3, § 18, of the Constitution.

The case of Atchison, T. & S. F. R. Co. v. State, 28 Okl. 94, 113 P. 921, 40 L. R. A. (N. S.) 1-39, is accompanied by a note presenting an exhaustive review of the rulings in different jurisdictions respecting the conclusiveness of an enrolled bill. The note discloses a great diversity of judicial opinion. Some of the cases decided by this court appear in subdivision 10, of this note, among a large number of cases from other jurisdictions which do not recognize the absolute conclusiveness of an enrolled bill.

Reverting now to the controversy upon the question whether there was or was not a quorum or 66 members of the House of Representatives present on April 3, 1913, and turning to the journal of the House for that day, we find it showing that 52 representatives were present and voted, "Aye," when their names were respectively called in favor of passing the bill notwithstanding the objections of the Governor. It shows four Representatives present who voted, "No," when their names wear caller; and two Representatives present, each of whom answered when their names were called, "Present, but not voting." Thus, it affirmatively appears from the journal that 58 Representatives were present when the vote was taken. The names of 35 Representatives are set out on the journal in addition to the 58, but the journal as to these 35 shows that, when the name of each of them was called, Mr. Speaker Stanton answered for each, "Not voting."

It is clear that the journal does not affirmatively show that the 35 Representatives were present when the vote was taken. It is likewise clear that the journal does not affirmatively show that any one of them was present when the vote was taken; but it is said for one side of this controversy that, while the journal does not affirmatively show the presence of a quorum, it does inferentially, or by reasonable presumption, show the fact that a quorum was present when this vote was taken.

We cannot agree to this insistence. As we see the journal, the reasonable presumption is to the contrary of this insistence, and, in determining the question as to what the reasonable presumption is arising from this journal, we think it clear that the weight of authority establishes the rule that in those jurisdictions where an enrolled bill is not considered conclusive, but open to attack, judicial notice will be taken by the courts of legislative journals, both of the House and of the Senate, whenever a consideration of such journals sheds light upon the question at issue.

A large array of cases to this effect may be found under subdivision 13, of the note referred to supra, in 40 L. R. A. (N. S.) at page 38.

Therefore looking to the journal of the House of Representatives for the day April 3, 1913, we see it recites the meeting of the House at 10 a. m., the calling of the...

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