Wright v. Wiles

• Decision Date: 11 June 1938
• Parties: WRIGHT et al. v. WILES et al.
• Court: Tennessee Supreme Court

117 S.W.2d 736

173 Tenn. 334

WRIGHT et al. v. WILES et al.

Supreme Court of Tennessee.

June 11, 1938

Appeal from Chancery Court, Davidson County; James B. Newman Chancellor.

Suit by C. F. Wright and others against Marvin Wiles and others attacking the validity and constitutionality of an act creating a Board of Photographic Examiners, with power to examine and license photographers and thus limit and regulate the conduct of the photographic business. From a decree adverse to complainants, complainants appeal.

Reversed.

Jacobs H. Doyle and Elkin Garfinkle, both of Nashville, for appellants.

Albert G. Ewing and Albert G. Ewing, III, both of Nashville, and Green, Webb, Bass & McCampbell, of Knoxville, for appellees.

CHAMBLISS Justice.

Complainants who are engaged in the photographic and photo-finishing business, brought this bill attacking the constitutionality of Chapter 253 of the Public Acts of Tennessee of 1937, which creates a Board of Photographic Examiners, with the power to examine and license photographers, and thus limit and regulate the conduct of this business.

The Act is assailed on various grounds alleged to be in conflict with different sections of the Constitution, it being insisted that it is arbitrary and unreasonable class legislation discriminatory in its effect and placing unreasonable and unnecessary restrictions upon the conduct of this private business and the right to contract; and it is also insisted that the Act embraces more than one subject and that one of the subjects is not set out in the title.

A preliminary question is presented by the allegation that the bill was not passed on three different days in each House of the Legislature, and specifically that it did not receive, on its final passage in the House of Representatives, the assent of the majority of all of the members of that House.

We consider, first, this objection to the validity of the Act which, if found to be well taken, is determinative. Looking to the Journal, as it is conceded may be done, it appears affirmatively that the bill was passed on two readings, and that when it was called up for passage on the third reading the vote was forty-four noes and twenty ayes and twelve recorded as present and not voting. Following the announcement of this result, the Journal shows that a motion to reconsider was made and tabled.

This was on the 18th day of May, 1937, being the seventy-second day of the session.

The next pertinent entry on the Journal shows the report of the Committee on Enrolled Bills, Wednesday, May 19, 1937, being the seventy-third day of the session, and this report shows that House Bill, No. 1197, being the bill in question, had been engrossed and was ready for transmission to the Senate.

The next entry is on Friday, May 21, 1937, the seventy-fifth day of the session, and it appears that this bill was returned to the House from the Senate and was reported as having been passed by the Senate. The next entry on the same day shows that the Committee on Enrolled Bills reported, "we have carefully compared House Bill No. 1197 and find same correctly enrolled and ready for the signatures of the Speakers. Dixon, Chairman." There follows on the Journal the word "signed", and immediately following, "The speaker announced that he had signed House Bill No. 1197." Next, a "Message from the Senate", reading, "Mr. Speaker: I am directed to return to the House, House Bill No. 1197 signed by the Speaker. Hunt, Clerk." There then follows a record of the report of the Committee on Enrolled Bills to the effect that the Bill had been transmitted to the Governor, and following that, under the caption "Message from the Governor", these words: "Mr. Speaker: I am directed by the Governor to return herewith House Bill No. 1197 with his approval. F. L. Browning, Secretary."

Under the holdings of this Court, every presumption is applied in favor of the regularity of the passage of a bill when the record shows it to have been signed by the Speakers of both Houses and thereafter approved by the Governor. This rule is given controlling application unless it affirmatively appears that the bill was defeated by final action in one or the other of the two Houses. State ex rel. v. Davis, 146 Tenn. 287, 240 S.W. 762; State ex rel. v. Hannum, 158 Tenn. 119, 11 S.W.2d 858; State ex rel. v. Algood, 87 Tenn. 163, 166, 10 S.W. 310; Brewer v. Mayor, etc., of Huntingdon, 86 Tenn. 732, 9 S.W. 166. The situation presented by this record differs in details from that considered in any of the reported decisions of this Court. As has been shown, it affirmatively appears that when this bill was called up for passage on the third reading in the House, it was defeated by a vote of forty-four to twenty; that thereupon a motion to reconsider this action was made and thereupon a motion to table the motion to reconsider was made and carried.

The argument for the validity of the bill is that this action shown by the Journal does not conclusively rebut the presumption that subsequently the motion to reconsider was taken from the table and thereupon the motion to re-consider was adopted and following that the bill was again put upon its passage and adopted by a constitutional majority.

In the case of State ex rel. v. Davis, supra, the Journal showed that the bill received a majority vote for its passage, but failed for want of a constitutional majority, not, as here that it was defeated by a majority vote of more than two for one, followed by a motion to re-consider immediately tabled. Says the opinion in the Davis Case (page 763), "It is also a...