Boyd v. Olcott

202 P. 431 | Or. | 1921

HARRIS, J.

1. The plaintiff argues that Article XI-C is void because it was not adopted in full compliance with the Constitution; and that Chapter 201 is likewise void because it was not enacted by the legislative assembly in full compliance with the Constitution. At the very outset the defendants contend that the court cannot inquire whether Article XI-C was regularly adopted by the legislative assembly or approved by the people, because it involves a political and' not a judicial question. If, however, it is held that the inquiry involves a judicial question and that therefore the court may legally investigate and determine whether Article XI-C has been constitutionally adopted by the legislative assembly and approved by the people, the defendants nevertheless contend that the court must accept the enrolled resolution filed with the Secretary of State as an absolute verity and as a conclusive presumption that all the steps required for its lawful existence wer'e taken in full compliance with the Constitution. The defendants also seek to apply the same argument to Chapter 201, and they are insisting that the enrolled H. B. 203 is conclusive evidence that all that was required by the Constitution to be done was done, and that the resolution was regularly and legally enacted by the legislative assembly and approved by the Governor and filed with the Secretary of State. If the question of the regularity of the adoption of the amendment is a political and not a judicial question, then Article XI-C must he treated as having been legally adopted, and in that event the inquiry cannot proceed further than the inspection of the enrolled resolution filed with the Secretary of State. If the resolution and enrolled bill, duly authenticated and filed with the proper officers as they are, must be accepted as absolute verities which conclusively import regularity, then further inquiry is prevented and in that event the decree must be affirmed. If, however, it should be determined that an enrolled resolution is not an absolute verity, nevertheless Article XI-C must be held valid if it should be further determined that the Governor is given exclusive authority to decide whether an amendment to the Constitution has been regularly adopted; for the defendants here argue that the Governor is given exclusive power to decide whether the Constitution is legally amended and that consequently his proclamation is conclusive upon the court.

It must be remembered that the question involved here is not whether a new Constitution has been adopted, nor whether an amendment to the Constitution is such as to preserve the republican form, of our government; and consequently precedents like Luther v. Borden, 7 How. 1 (12 L. Ed. 581), and Pacific States Tel. & Tel. Co. v. Oregon, 223 U. S. 118 (56 L. Ed. 377, 32 Sup. Ct. Rep. 224), are not in point. The question presented by the record is whether Article XI-C was proposed, adopted and ratified as an amendment to the Constitution in the manner and form and in accordance with the procedure prescribed by the Constitution. Stated broadly, and subject to whatever rules of evidence may be applicable, such a question is in this jurisdiction, as it is in other jurisdictions, a question for the courts to determine, unless committed by the constitution to a special tribunal with power to make a conclusive decision: McConaughy v. Secretary of State, 106 Minn. 392, 417 (119 N. W. 408); 12 C. J. 880; 6 R. C. L. 32. The conclusion that the question last mentioned is a judicial question was reached in Kadderly v. Portland, 44 Or. 118, 131 (74 Pac. 710, 75 Pac. 222), where this court expressed its views through a then member of the court who is distinguished for his learning and wisdom; and so on the faith of Kadderly v. Portland, it may be accepted as an established doctrine in this jurisdiction that the courts are empowered to investigate and determine whether an amendment to our Constitution has been legally adopted by the legislature and approved by the people, unless the power to investigate and decide is lodged elsewhere by the express terms of the Constitution.

There is a difference of judicial opinion concerning the effect to be given to an enrolled bill or resolution when it has been authenticated and is found in the custody of the proper officer. Some courts treat an enrolled bill as an absolute verity and will not look beyond the enrolled bill to the legislative journals or to other evidence to ascertain whether the bill has been regularly enacted. This view is frequently mentioned as the enrolled bill rule. It has always been the rule in England. The Supreme Court of the United States has adopted the enrolled bill rule. The current of judicial opinion has been steadily turning towards this rule during the last decade, for in nearly every jurisdiction where the question has, within the last ten years, presented itself as one of first impression, the courts have adopted the enrolled bill rule. Some courts have adhered to the journal entry rule only because fettered by their own precedents. Other courts have repudiated their own precedents, have receded from the journal entry rule and have adopted the enrolled bill rule. The following are some of the precedents approving the enrolled bill rule: Field v. Clarke, 143 U. S. 649 (36 L. Ed. 294, 12 Sup. Ct. Rep. 495); Louisiana State Lottery Co. v. Richoux, 23 La. Ann. 743 (8 Am. Rep. 602); State ex rel. Reed v. Jones, 6 Wash. 473 (34 Pac. 201, 23 L. R. A. 340); Carr v. Coke, 116 N. C. 223 (22 S. E. 16, 47 Am. St. Rep. 801, 28 L. R. A. 737); Ex parte Wren, 63 Miss. 512 (56 Am. Rep. 823); State ex rel. Pangborn v. Young, 32 N. J. L. 29; Williams v. Taylor, 83 Tex. 667 (19 S. W. 156); Allen v. State, 14 Ariz. 458 (130 Pac. 1114, 44 L. R. A. (N. S.) 468). See, also, Gottstein v. Lister, 88 Wash. 462 (153 Pac. 595, Ann. Cas. 1917D, 1008, 1021); 1 Sutherland, Stat. Constr. (2 ed. by Lewis) 72; Atchison, T. & S. F. R. Co. v. State, 28 Okl. 94 (113 Pac. 921, 40 L. R. A. (N. S.) 1, and note); 25 R. C. L. 895.

Other courts have adopted the view that an enrolled bill is only prima facie evidence of regularity, and, therefore, hold that it is proper to look to the legislative journals to ascertain whether the bill has been passed in compliance with the constitutional requirements. This view is sometimes called the journal entry rule: 35 R. C. L. 395, 399. This court has in prior decisions approved and followed the journal entry rule: Currie v. Southern Pacific Co., 21 Or. 566, 570 (28 Pac. 884); State v. Rogers, 22 Or. 348, 364 (30 Pac. 74); McKinnon v. Cotner, 30 Or. 588, 591 (49 Pac. 956); Portland v. Yick, 44 Or. 439, 442 (75 Pac. 706, 102 Am. St. Rep. 633). See, also, 26 R. C. L. 898.

In the final analysis both rules are, within the meaning of our Code, rules of evidence: Sections 637, 696, and 699, Or. L. The enrolled bill rule involves a conclusive presumption of regularity, and consequently is a rule of evidence in the same sense that Section 798, Or. L., treating of conclusive presumptions, is a rule of evidence. See, also, Section 669, Or. L. The journal entry rule involves a disputable presumption, and consequently is likewise a rule of evidence in the same sense that Section 799, Or. L., treating of disputable presumptions, is a rule of evidence. In jurisdictions where the enrolled bill doctrine is followed, the enrolled bill always prevails over the journal entry, for the latter cannot be used to impeach the former. In jurisdictions where the journal entry rule is followed, the journals are permitted to prevail over the enrolled bill, for the former may be used to impeach the latter. Under one rule the enrolled bill is always of supreme authority; under the other rule the legislative journals may be of supreme authority.

If the comparative values of these two rules of evidence are to be measured by the reasons which are usually advanced for their support, it will be found that the reasons given in support of the enrolled bill rule are not only greater in number but also more persuasive in quality than those given in support of the journal entry rule. It is true that the Constitution (Article IV, Section 13) requires each house to keep a journal of its proceedings, but it is also true that the Constitution contemplates that every bill and every joint resolution shall be evidenced by an authenticated writing which in legislative parlance is usually known as the enrolled bill or resolution, and, moreover, the Constitution (Article IV, Section 25) in express terms commands that “all bills and joint resolutions so passed shall be signed by the presiding officers of the respective houses”; so that it cannot be said that the Constitution alone and of itself either expressly or impliedly dignifies the journals with a higher rank than is accorded to the enrolled bill. Considerations of public policy argue strongly in favor of the enrolled bill rule: 22 C. J. 83. This rule is a rule of greater certainty and that circumstance is not without influence. There are additional reasons arising out of statutes in force in this state and out of legislative practices prevailing here. The journal of each house is prepared and kept by clerks chosen by the members of the house. No member of the legislature keeps the journal, and only in rare instances does any member of the legislature ever see or read any part of the journal before the final adjournment of the legislature. Any person who within the last quarter of a century has served in the Oregon legislature knows that the journals are not read in open session for approval or correction by either house. In the House of Eepresentatives, as shown by the journal for the session of 1921 as well as by prior journals, the practice is and for many years has been by motion each day to dispense with the reading of the journal. As shown by the senate journals, it is not and has not been the practice of the senate to read the journal at any time during the session. Even with the most competent clerks the journal cannot be kept with absolute accuracy and in perfect order from day to day so that upon the moment of final adjournment the journals can be delivered to the Secretary of State without further attention or correction. The legislature long ago took notice of the condition in which the journals invariably are at the time of final adjournment, and recognized the necessity of correcting and completing the journals after the final adjournment of the legislative assembly; for it is by statute made “the duty of the chief clerk and calendar clerk of each house to remain at the capital after the adjournment of a session of the legislature, and correct and complete the journals of the respective houses, and for this service they shall be allowed compensation for a number of days equal to one-third of the number of days which the session continued, at the rate per day provided for in this chapter.” Section 2689, Or. L.

No officers or persons except the chief and calendar clerks are required to examine the journals subsequent to final adjournment. It would be quite extraordinary to find that any member of the legislature had examined the journals after adjournment and before delivery to the Secretary of State.

The chief clerk of the senate and the chief clerk of the house must at the close of each session of the legislature deliver the journals to the Secretary of State, for under the terms of Section 2714, Or. L., it is made the duty of these two clerks to deposit for safekeeping in the office of the Secretary of State “all books, bills, documents, and papers in the possession of the legislature, correctly labeled, folded, and classified.” The clerks are furnished with printed blanks,' and these blanks are used in keeping a record of the proceedings in the house. These sheets of paper are kept separately and are not bound until after final adjournment. In actual practice, matter written and printed on these sheets is never read by or to either house in open session; and hence the journals delivered to the Secretary of State are journals which have been kept by clerks, and not by the members themselves; they have not been read in their entirety by any member of the legislature, although there may be rare instances where some part of the journal has been read by some member; they have been corrected and completed after the final adjournment of the session and after the members of the assembly have gone to their respective homes. When the journals are delivered to the Secretary of State he is required to exercise only the same degree of care in providing for their safekeeping as is required of him in the care of other books and papers delivered to him'in the routine of business; but he is not commanded to exercise that degree of extraordinary vigilance which is by statute required of him in safekeeping an enrolled bill. Of course it may be said that the presumption is that the clerks perform their duties and correctly keep the journals, but the same presumption of official duty correctly performed applies to every clerk and to every member of the assembly having any. duty to perform in connection with an enrolled bill. It may be said, too, that the members of each house are responsible for the accuracy of the journal of that house; but it can be said with equal force that the members of the legislature are responsible for the accuracy and truth of an enrolled bill. It must be remembered that we are now examining the actual conditions out of which spring reasons for a rule of evidence, and that the strength or weakness of the reasons depends in a large measure upon the conditions as they actually exist.

A committee on enrolled bills is appointed from the membership of each house. When a bill has been passed by both houses or a joint resolution has been adopted by both branches of the legislative assembly, the engrossed bill or engrossed resolution is delivered to the chairman of the committee on enrolled bills appointed from the house where the bill or resolution originated, and it is the duty of that committee to draft what is termed the enrolled bill or resolution which subsequently is presented to the speaker of the house and to the President of the senate for their signatures. The presiding officers always sign enrolled bills and enrolled resolutions in open session. The presiding officer always announces that he is about to sign a given bill or resolution; he signs it; and then he formally announces that he has signed it. No other business can be transacted while the presiding officer is signing an enrolled bill or resolution. After the enrolled bill is signed by the presiding officer of the two houses it is delivered to the Governor and if approved by him is filed with the Secretary of State. By the terms of Section 2707, Or. L., the Secretary of State is

“charged with the safekeeping of all enrolled laws and resolutions, and shall not permit the same or any of them to be taken out of his office or inspected, except in his presence, unless by order of the Governor, or by resolution of one or both houses of the legislature, under penalty of $100.”

We direct attention to Section 2715, Or. L., and especially to the clauses which we have caused to be italicized,—

“It shall be the duty of the Secretary of State to cause the original enrolled laws and joint resolutions, passed at each session of the legislature, to be bound in a volume, in a substantial manner, and in the order in which they are approved, and no further record of the official acts of the legislature, so far as relates to acts and joint resolutions, shall be required of said secretary, and he shall index the same, and cause the title thereof, with the session at which the same shall have been passed, to be written or printed on the back of such volume.”

Section 2715 must be read in the light of the statute which requires the Secretary of State to furnish to the state printing board true and correct copies of all laws enacted by the legislative assembly together with copies of resolutions. The enrolled bills and enrolled joint resolutions are the originals from which the Secretary of State prepares his copies for the state printing board, and these copies are the copies from which the session laws are printed. It must also be remembered that Section 2715, Or. L., was enacted in 1859 by a legislative assembly which included among its members some of the men, three in the senate and five in the house, who had been members of the convention that drafted our state Constitution.

So far as presumptions are concerned there is not a single presumption attaching to the legislative journals that does not logically and with equal or greater force also attach to every enrolled bill and joint resolution. The enrolled bills and joint resolutions must, by the express command of the statute, be guarded by the Secretary of State with extraordinary care and ceaseless vigilance. Journals are guarded with merely the same degree of care as is required in case of ordinary papers filed from day to day. What ma3r happen as a result of the mere handling of the journals may be illustrated by an actual experience. The members of this court were examining the original journals and while doing so a printed copy of a measure, which had been loosely inserted in one of the journals, fell out. It can be readily understood that the mere handling of the joiirnals could easily cause the loss of any sheet that may have been loosely and hastily inserted, and if that sheet contained an entry mandatorily required by the Constitution the loss of the sheet would under the journal entry rule invalidate the statute to which the entry related even though every step required by the Constitution had been actually taken and despite the fact that the measure had received a constitutional majority in both houses, and, if referred to the people, had received an overwhelming majority ’at the polls. Although it is possible for a mistake to occur during the progress of a bill through the two houses and for the bill to be signed and.filed as an enrolled bill notwithstanding that mistake, yet it is also possible for a mistake to occur in the journals, either by way of omission or commission, notwithstanding the fact that a bill. has in truth passed both houses in strict accordance with the requirements of the Constitution. Every step required by the Constitution is taken in open session and in the presence and hearing of the members in attendance. Nearly every measure has its foes as well as its friends and, consequently, is constantly under the eyes of those who oppose as well as those who favor it. A calendar is prepared, corrected and printed nearly every day, if not every day, showing the status of every measure introduced, and this printed calendar is laid upon the desk of every member of the assembly. The chances of any measure reaching the stage of an enrolled bill in spite of failure of either house to do some act required by the Constitution are at least as few, if not fewer, than the chances of failure to make some entry which ought to have been made in the journal. Possibility of error in the journal is just as great, if not greater, than the possibility of eri'or in the course taken by an enrolled bill or joint resolution.

We have taken this occasion to point out the difference between the two rules and to direct attention to the possible result of adherence to the journal entry rule. As previously explained, we are confronted with prior decisions of this court which have followed the journal entry rule. We do not by anything stated here wish to be understood as receding from or overruling any of those prior decisions. It is not necessary at this time to decide whether this court will in the future continue to adhere to the journal entry rule or will repudiate it and adopt the enrolled bill rule, because in the instant case Article XI-C and Chapter 201 can successfully pass the test of the journal entry rule. We shall therefore assume for the purpose of the instant case that our prior precedents require us to follow the journal entry rule.

2. The Constitution does not confer upon the Governor exclusive authority to pass upon the validity of an amendment voted upon and adopted by the people. Indeed, the duty imposed upon the Governor is a limited one. The votes must be canvassed by the Secretary of State in the presence of the Governor, and “if it shall appear to the Governor that the majority of the votes cast” at the election are in favor of the amendment, it is his duty to issue a proclamation declaring the amendment adopted as a part of the Constitution. The Governor is directed to make only one inquiry, and that inquiry is: Did a majority of the electors vote for the amendment1? If a majority did so vote, the Governor must issue a proclamation as commanded. Clearly the Governor is not given exclusive authority, if any authority at all, to go behind the canvass of the votes and to investigate and to determine whether constitutional and statutory requirements have been fulfilled up to the time of the canvass. The Constitution does not contain any language which, by the remotest intimation or otherwise, indicates an intention to vest the Governor with exclusive authority.' to determine npon the regularity of the submission of an amendment to the Constitution; and, hence, the proclamation of the Governor cannot give rise to a conclusive presumption of regularity.

3. The Constitution is an instrument which contains the fundamental or basic law to which all other laws must conform. We do not ordinarily expect to find in a Constitution rules which are merely directory; but, upon the contrary, we are accustomed to' find and always expect to find within a Constitution nothing but mandatory provisions. As pointedly stated by Judge Cooley,—

“The courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of the Constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised.” Cooley, Const. Lim. (7 ed.) 114.

4, 5. The Constitution prescribes the method by which it may be amended, and the procedure so prescribed is the measure of the power to amend. The provisions of the Constitution for its own amendment are mandatory and binding not only upon the legislative assembly but also upon all the people as well; and, consequently, a failure to observe the mandates of the Constitution is fatal to a proposed amendment, even though the electors have with practical unanimity voted for it. Kadderly v. Portland, 44 Or. 118, 135 (74 Pac. 710, 75 Pac. 222). Of course, as said by Mr. Justice Brewer in Prohibitory-Amendment Cases, 24 Kan. 700, 710: “The two important vital elements in any constitutional amendments, are, the required vote of the legislature and a majority of the popular vote.” Other provisions are mere machinery and forms. “While a liberal interpretation may sometimes be applied to the manner of compliance with constitutional requirements concerning mere forms and machinery, it is unusual to find any reported decision holding that the total omission or disregard of such a requirement is harmless: Hammond v. Clark, 136 Ga. 313 (71 S. E. 479, 36 L. R. A. (N. S.) 77). So long as the Constitution remains as the fundamental law of the land it and no other law can control unless this becomes a government of men and ceases to be a government of law. We cannot agree with the contention of the defendant that Article XVII is to be treated as merely directory when it declares that a proposed amendment shall be “entered in” the legislative journals. This provision of the Constitution is mandatory; and, therefore, the questions remaining for decision concerning the amendment are: (1) What do the words “entered in” mean as used in Article XVII? And (2) do the journals show a compliance with the requirement?

6, 7. Although the journal entry rule permits the impeachment of an enrolled bill by the legislative journals, yet there are limitations upon the operation of the rule. At the very beginning of every investigation concerning the question of regularity the enrolled bill presents itself behind the shield of a presumption that it has been regularly enacted. This presumption it is true is disputable and may be overcome; but it is also settled that all intendments in favor of regularity will be invoked, and unless it is clear and palpable that the legislature has violated the Constitution, its acts will be sustained: Kadderly v. Portland, 44 Or. 118, 143 (74 Pac. 710, 75 Pac. 222). Every reasonable presumption is to be made in favor of the regularity of legislative proceedings. If the Constitution does not require a given proceeding to be entered in *the journal, the absence of a record in the journal will not invalidate a law. It will not be presumed from the mere silence of the journal that either house has exceeded its authority or disregarded constitutional requirements in the passage of legislative acts: Currie v. Southern Pacific Co., 21 Or. 566, 571 (28 Pac. 884); State v. Rogers, 22 Or. 348, 364 (30 Pac. 74); Portland v. Yick, 44 Or. 439, 442 (75 Pac. 706, 102 Am. St. Rep. 633); Emmons v. Southern Pacific Co., 97 Or. 263, 274 (191 Pac. 333). The language used in McKinnon v. Cotner, 30 Or. 588, 592 (49 Pac. 956), is peculiarly applicable to H. J. P. 12 and to H. B. 203, and hence we quote from that opinion as follows:

“The enrolled act as filed with the Secretary of State is signed by the officers of the house and senate required by the Constitution to sign all bills and joint resolutions passed by their respective bodies, and is therefore officially attested in the manner required by tbe organic law as one that has regularly and duly passed the legislature, and this attestation must prevail, unless the contrary conclusively appears by the journals of their proceedings.”

8. It is contended by the plaintiff that the proposed amendment, Article XI-C, was not “entered in” the journals as required by Article XVII, Section 1 of the Constitution. It will be remembered that a printed copy of H. J. E. 12 as originally introduced in the house was inserted in the house journal and that the report of the committee containing amendments which were adopted by the house was also inserted in the house journal. It is plain, therefore, that even though it be assumed that the Constitution requires a proposed amendment to be entered at length in the journals, the requirement is fulfilled so far as the house journal is concerned. The senate journal, however, presents a different situation.

A printed copy of the resolution, as the resolution appeared when originally introduced in the house, was inserted in the senate journal by pasting one end of the printed copy to one of the blank sheets used in keeping a record of the senate proceedings, and therefore it can be said that the resolution as originally introduced is entered at length in the senate journal; but a copy of the amendments which were adopted by the house does not appear in the senate journal, nor does the senate journal contain a copy of the resolution as amended and passed by the house. If the Constitution requires the proposed amendment to the Constitution as it appeared when it passed the house to be entered .at length in both journals, then the senate journal fails to meet that requirement. In this connection we repeat that the senate journal does not contain an affirmative declaration that the printed copy inserted in the senate journal is a copy of the resolution received by the senate from the house, although the insertion of the printed copy of the original resolution does raise the implication that the printed copy is a copy of the resolution upon which the senate acted.

What do the words “entered in” mean? The verb “enter” has many meanings, some of which are:

“To cause to be inscribed or enrolled; offered for admission, reception, or competition: as to enter one’s son or one’s self at college; to enter a friend’s name at a club; to enter a horse for a race; to report at the custom-house, as a vessel on arrival in port, by delivering a manifest; as, to enter a ship or her cargo.” Century Dictionary (Revised and Enlarged Edition).

Among the meanings given in Webster’s New International Dictionary are the following:

“To inscribe; enroll; record; as, to enter a name or a date, in a booh, or a hook in a catalogue; to enter the particulars of a sale in an account.”

In the Century Dictionary (Revised and Enlarged Edition) we read that the noun “entry” means:

“The act of entering or recording in a book; the act of setting down in writing, as a memorandum; the making of a record. That which is entered or set down in writing; a record, as of a fact, or an item in an account.”

When a bookkeeper enters a promissory note in a ledger he does not copy the note in full. When a book is entered in a catalogue the whole book is not reproduced in the catalogue.

When considering a Constitution or a statute, ascertainment of the intention is the “consummation devoutly to be wished.” Words found in the instrument are to be interpreted and understood in their most natural and obvious meaning, unless it appears from the subject or the text that they have been used in a technical sense. The presumption is in favor of the natural and popular meaning in which words are understood by the people who have adopted them: Sections 716, 718, Or. L.; 12 C. J. 705.

If a resolution is written out in full in the journal it is of course entered in the journal; and so, too, when the journal contains a record sufficient to identify a given resolution it is entered in the journal within the meaning of the word “entered” as that word is naturally and popularly understood; but, nevertheless the authorities are divided upon the question as to whether or not the word “entered,” when found standing alone, requires recording in full, in extenso, at length, or is satisfied if the journal contains references sufficient for identification: 6 E. C. L. 29. After a careful examination of many authorities discussing the subject it is our conclusion that a great majority of the reported judicial decisions, when read and analyzed in the light of the facts upon which they are based, support the rule that an identifying reference is a full compliance with a constitution requiring that a resolution be “entered in” the journal: See 12 C. J. 692; Ex parte Ming, 42 Nev. 472 (181 Pac. 319, 6 A. L. R. 1216). The following are a few of the many reported decisions holding that an identifying reference satisfies the requirements of a Constitution worded like our Constitution: Ex parte Ming, 42 Nev. 472 (181 Pac. 319, 6 A. L. R. 1216); Oakland Paving Co. v. Tompkins, 72 Cal. 5 (12 Pac. 801, 1 Am. St. Rep. 17); Thomason v. Ashworth, 73 Cal. 73 (14 Pac. 615); Constitutional Prohibitory Amendment, 24 Kan. 700; Cudihee v. Phelps, 76 Wash. 314 (136 Pac. 367); Gottstein v. Lister, 88 Wash. 462 (153 Pac. 595, Ann. Cas. 1917D, 1008); State ex rel. Adams v. Herried, 10 S. D. 109 (72 N. W. 93); Worman v. Hagan, 78 Md. 152 (27 Atl. 716, 21 L. R. A. 716); In re Senate File, 25 Neb. 864 (41 N. W. 981); Lee v. Price, 54 Utah, 474 (181 Pac. 948); West v. State, 50 Fla. 154 (39 South. 412). If our Constitution explained how the proposed amendment should be entered by commanding that it be entered “in full” or “at length,” then quite a different situation would be presented: See note in 6 A. L. R. 1230, and Nesbit v. People, 19 Colo. 441 (36 Pac. 221); People ex rel. Elder v. Sours, 31 Colo. 369 (74 Pac. 167, 102 Am. St. Rep. 34). Indeed, if the cases are read discriminatingly and with the facts involved constantly kept in mind, it will be found that, after eliminating all precedents dealing with constitutions which expressly require an entry “at length” or “in full,” only a very few will remain holding that the word “entered” when standing alone means “entered in full.” It is claimed by the plaintiff that Kadderly v. Portland, 44 Or. 118, 135 (74 Pac. 710, 75 Pac. 222), supports his contention; but as said in Ex parte Ming, 42 Nev. 472 (181 Pac. 319, 6 A. L. R. 1216, 1220), the case of Kadderly v. Portland is no authority sustaining the contention of the plaintiff, for there this court merely stated the result of the holdings in three other jurisdictions and cited three cases, one from each of such three jurisdictions, listed as belonging to the “entered in full” rule. And in this connection it is of interest to note that one of those three cases has since been overruled, and another has since been clearly distinguished by a court which has unmistakably taken its place with courts which hold that an identifying reference is sufficient. If, then, we should be guided and governed entirely by the weight of judicial precedents, our conclusion would necessarily be that the entry of a sufficient identifying reference satisfies the requirements of our Constitution. But we do not rest our conclusion entirely upon the weight of judicial precedents, for we prefer to base our conclusion principally upon what we believe to be the better reasons.

When the Constitution, as a whole, is taken by its four corners and examined as an entirety, and Article XVII is read in connection with the remainder of the instrument, it will become obvious that the conclusion that the words “entered in” as used in Article XVII are satisfied when the entry consists of an identifying reference and that they do not mandatorily compel an entry in full, is the only conclusion which can be reasonably drawn. Article V, Section 15b of the Constitution begins with the following sentence:

“Every bill which shall have passed the legislative assembly shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; but if not, he shall return it with his objections to that bouse in which it shall have originated, which house shall enter the objections at large upon the journal and proceed to reconsider it.”

Article V, Section 15b, still reads exactly as it did when framed by the constitutional convention and adopted by the people. The words “such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals” of Article XVII, as now printed in Or. L., p. 184 (Olson’s Comp.), appear exactly the same as they are printed in Deady’s Compilation of 1866, except that in the latter the word appearing before the word “their” is “on” and not “in.” Thus it is seen that we have an instrument in which the word “entered” appears in one section, and the word “enter” in another. Because of the nature of the instrument we may fairly assume that every word used in it was selected with care and after deliberation. In one section the command is to enter the proposed amendment without specifying in the order how the entry shall be made, whether by an identifying reference or by a complete copy. In the other section, the command is to enter the objections of the Governor, and the section prescribes how the command shall be executed. By specifically ordering the entry to be “at large,” is it not fair to assume that the framers of the Constitution knew that if the words “at large” were omitted the word “enter” would be given its popular signification and construed to mean either a full copy or a mere reference which would be sufficient to identify the objections of the Governor? Article Y was drafted by the committee on executive department, a committee of seven members of the constitutional convention, of which committee J. K. Kelly was chairman. Apparently Article XYII was prepared by a committee of nine members of the constitutional convention, known as the committee on miscellaneous provisions, of which Reuben P. Boise was chairman; for on page 75 of the journal of the constitutional convention we read:

“Mr. Williams [George H. Williams] moved to instruct the Committee on Miscellaneous provisions to report on the mode of amending the constitution; which was agreed to.”

Article XVII was not even submitted to the convention until after Article V bad been read three times, discussed in the committee of the whole, read and debated by clauses, amended and finally passed by the convention; and consequently the language employed in Article XVII was used with full knowledge of the language which had been already adopted in Article V. The fact that J. K. Kelly was the chairman of the committee that prepared the one article, and that Reuben P. Boise was the chairman of the committee that framed the other article affords at least some assurance that the words “at large” were inserted in Article V because deemed essential to secure the entry of a complete copy of the objections of the Governor, and that they were omitted from Article XVII because it was not deemed essential that a full copy of the proposed amendment be entered in the journal. Moreover, two of the members who served on the committee which prepared Article V also served on the committee that prepared Article XVII: Journal of the Constitutional Convention, published in 1882 by W. H. Byars, State Printer, pages 16, 24, 31, 37, 39, 40, 42, 43, 57, 75, 77. After giving to the question our most careful consideration and our best judgment, we are convinced that the words “entered in” were clearly intended to mean any kind of entry which is sufficient to afford identification.

9. It must be conceded that the proposed amendment was “entered in” the house journal; but the principal question yet to be answered is: Was the proposed amendment “entered in” the senate journal? If the printed copy of H. J. R. 12 found in the senate journal were withdrawn from the journal, the remaining references in the senate journal would be sufficient to prove beyond every reasonable doubt that tbe resolution adopted by tbe senate was the resolution as it appeared and existed after it was amended and adopted by tbe bouse. In other words, if tbe printed copy now found in tbe senate journal bad never been inserted, tbe journal would nevertheless show that tbe senate adopted H. J. R. 12 in tbe form in which it was adopted by tbe bouse and in tbe form in which it appears in tbe enrolled resolution. But the plaintiff argues that since tbe printed copy of tbe resolution as originally introduced in the bouse is in fact in the journal it necessarily shows that tbe bouse adopted tbe resolution in one form and that tbe senate adopted it in another form; that tbe bouse adopted tbe original resolution with tbe amendments, and that tbe senate adopted tbe original resolution without tbe amendments.

As previously explained, tbe senate journal does not contain an affirmative statement that tbe printed copy is a copy of tbe resolution as tbe resolution was received from the bouse, and hence tbe senate journal contains only an implied declaration that tbe printed copy is a copy of tbe form of tbe resolution adopted by tbe senate. We have, then, on tbe one hand an enrolled resolution fortified with every reasonable presumption in its favor, and as said in McKinnon v. Cotner, 30 Or. 588, 592 (49 Pac. 956), tbe enrolled resolution must prevail “unless tbe contrary conclusively appears by tbe journals of their proceedings”; and on tbe other band we have a journal which contains a mere implied declaration. Tbe conflict then is between a presumption, which can be overcome only when conclusively refuted by tbe journal, and a mere implication arising out of the journal. In tbe circumstances presented here it is entirely manifest that this mere implication arising ont of the journal is not sufficient to outweigh the presumption attaching to the enrolled resolution; and it seems to us that there is no room whatever for any claim that the implication conclusively refutes the presumption.

When the journal is read in the light of admitted legislative practice all reasonable doubts, yes even hypercritical doubts, will be removed. The practice of our legislative assembly is determined by the Constitution, by statutes, by rules adopted by the assembly and by each house, and by parliamentary usage.’ The course taken by bills when introduced in the house will make plain the point we are now attempting to make. The Constitution requires a bill to be read three times, but this constitutional requirement does not include resolutions. However, the practice followed in the case of joint resolutions is substantially the same as the practice followed in the case of bills.

All bills introduced in the house are known as house bills; and all bills introduced in the senate are known as senate bills. Wh.en a bill is introduced in the house it is filed by the chief clerk and is given a number which becomes ever afterwards a mark of identification. All bills are numbered consecutively in the order of their introduction and the same number is never given to two or more bills. However, the engrossed bill and the enrolled bill take the same number as that given to the original bill, and the same number is of course given to committee reports; but these papers, the engrossed bill, the enrolled bill and the committee reports, show on their faces and by endorsements on the backs that they are such papers. Each bill then has its own number and no other bill is given that number. The bill is read the first time, generally by title only, and then the paper as originally introduced is delivered to the printer who prints it. A printed copy of the bill is immediately laid upon the desk of every member of each house and the original bill is returned by the printer to the chief clerk of the house. The bill is afterwards read the second time, usually by title only, and then according to house rule 46 the speaker states “it is ready for amendment, commitment or engrossment.” In actual practice the bill is almost invariably referred to a committee, usually a standing committee, sometimes to a special committee, and occasionally it goes to a committee of the whole house. If referred to a standing or to a special committee, the original bill is delivered to the chairman of that committee. The committee reports the bill back to the house, and if the committee suggests amendments those amendments are acted upon. Occasionally an amendment is made upon the floor of the house; as, for example, the correction of a clerical mistake, or as where an amendment is made with unanimous consent as illustrated by the request of Senator Joseph to strike out Section 26 of House Bill 203; but ordinarily amendments are suggested by committees and then acted upon by the house at the times when those committees make their reports. The amendments are printed and a printed copy of the amendments is laid upon the desk of every member of each house. If the amendments are adopted the original bill and the report of the committee containing the amendments are delivered to the chairman of the engrossing committee for engrossment. When the bill with its amendments is engrossed, the chairman of the engrossing committee returns to the chief clerk of the house the original hill and the report of the committee, and also delivers to him the engrossed bill. The engrossed hill is simply an amalgamation of the original bill and tbe amendments. There are now at this stage of tbe proceeding three papers in tbe bands of tbe chief clerk: tbe original bill, tbe report of tbe committee, and the engrossed bill. At this stage tbe original bill and tbe report of the committee containing tbe amendments have become, so to speak, functus officio; and they do not again leave the bands of tbe chief clerk of tbe bouse until after final adjournment. When tbe bill is read the third time it is tbe engrossed bill which is read, and if passed by tbe house tbe paper called tbe engrossed bill is tbe one which is transmitted to tbe senate. When tbe bill is read the third time it is read in full. If tbe bill as originally introduced is not amended in tbe bouse, then tbe original bill, according to tbe practice in this state, serves as tbe engrossed bill and is tbe paper which is transmitted to tbe senate. The engrossed bill, after receipt by tbe senate, is read tbe first and •second times by title and then is referred and delivered to a committee. Tbe paper called tbe engrossed bill is then returned to tbe senate by tbe committee with whatever report the committee makes; and if tbe bill is not amended, it is read tbe third time in full exactly as it was when it came from tbe house. If tbe bill is passed by tbe senate without amendment, tbe engrossed bill which was received by tbe senate from tbe house is returned to the bouse in exactly tbe same form as it was when received from tbe bouse except that on tbe back of it are indorsements of tbe chief clerk of tbe senate showing the dates when it was read tbe first and second times, when referred to committee, when reported back and when read the third time and the fact of passage. "When the house receives the engrossed bill from the senate, the paper is delivered to the committee on enrolled bills, and from the engrossed bill that committee drafts an enrolled bill. The committee on enrolled bills returns the engrossed bill to the house, and with the engrossed bill delivers the enrolled bill to the chief clerk of the house. The presiding officers then sign the enrolled bill, and it is delivered to the Governor; and, if approved by that officer, the enrolled bill is at once filed with the Secretary of State, but the engrossed bill, as well as the original bill and the report of the committee containing the amendments, remains with the chief clerk of the house until after final adjournment when the clerk delivers those three papers to the secretary of state. Thus it is seen that the only paper sent to the senate is the engrossed bill. The paper which was originally introduced in the house and the report of the committee containing the amendments do not, after the bill is engrossed, leave the hands of the chief clerk of the house until after adjournment when they are delivered to the Secretary of State. The senate never sees or hears the original bill, nor does that body ever see or hear the original report of the committee, although every member of the senate does see a printed copy of the original bill and a printed copy of the report of the committee containing the amendments. But the reading clerk of the senate never reads the printed copy to the senate on the first nor on the second nor on the third reading, for he always reads from the engrossed bill, and on the third reading he reads the engrossed bill in full.

If House Joint Resolution No. 12 followed the usual course, and presumably it did, it was printed after it was introduced in the house and read the first time. It may be stated in this connection that a joint resolution is almost always read in full on the first reading, and of course is always read in full on the last reading. A printed copy of the resolution was laid upon the desk of every member immediately after the resolution was printed. After the committee report was received in the house and the amendments adopted, the amendments were printed and a copy laid upon the desk of every member of the two houses. After printing the amendments the printer returned the committee report to the chief clerk of the house, who then delivered the original resolution of the committee and the committee report to the chairman of the committee on engrossed bills in order that the resolution as amended might be engrossed. When the resolution was engrossed the chairman of the committee on engrossed bills returned the original resolution and the committee report to the chief clerk of the house and at the same time delivered the engrossed resolution to that officer. The engrossed resolution was read in full, adopted by the house and at once transmitted to the, senate. The original resolution and the committee report remained in the hands of the chief clerk of the house until after final adjournment, at which time he delivered those two papers to the Secretary of State. The senate never saw the original resolution, nor did that body ever hear it read. The only paper which the senate heard or acted upon was the engrossed resolution. This paper, the engrossed resolution, was read in the senate and referred and delivered to a committee, reported back by the committee to the senate and finally adopted by the senate. After adoption of the resolution by the senate the engrossed resolution was returned to the house in exactly the same condition as it was when received from the house, except the indorsements made upon the hack by the chief clerk of the senate. The chief clerk of the house delivered the engrossed resolution to the chairman of the committee on enrolled bills. When the enrolled resolution was drafted, it, together with the engrossed resolution, was delivered to the chief clerk of the house. The enrolled resolution was then signed by the speaker of the house and by the President of the senate and promptly filed with the Secretary of State. The engrossed resolution remained with the chief clerk of the house until after the close of the session, at which time it was delivered to the Secretary of State.

The presumption that H. J. E. 12 followed the usual course is confirmed by the journals, by the engrossed resolution and the indorsements on it, and by the enrolled resolution in the hands of the Secretary of State. The indorsements on the engrossed resolution, over the signature of the chief clerk of the senate, show that the engrossed resolution was the paper which the senate received from the house and acted upon.

Our conclusion, as previously explained, is that the presumption of regularity attaching to the enrolled resolution is not overcome by the journal. This conclusion is based upon the contents of the journal, read in the light of the practice of the legislative assembly as that practice is fixed by written laws, written rules and accepted parliamentary usage; and this conclusion which we have reached is not in anywise rested upon the indorsements on the back of the engrossed resolution, although, as we understand it, the plaintiff does not contend that we have no right to examine the engrossed resolution. The engrossed resolution and the indorsements on it are pleaded in the answer, and for that reason we have referred to the engrossed resolution. If it is permissible to include in the calculation the engrossed resolution with its indorsements, our conclusion, although rested upon other grounds as previously explained, is still further strengthened. It must not be understood that we are deciding or even intimating that the legislative journals can or cannot be impeached by the original resolution or by the engrossed resolution, for it is not now necessary for us to decide that question. In the instant case, however, there is no conflict between the engrossed resolution and the journals: See 25 E. C. L. 902; and see also, Mumford v. Sewall, 11 Or. 67, 71 (4 Pac. 585, 50 Am. Rep. 462). In view of the practice followed by the legislative assembly, it is plain that the failure to insert in the senate journal a copy of the amendments to the resolution adopted by the house was the result of a clerical oversight. Ordinarily the clerk of the senate would have inserted with the printed copy of the original resolution a printed copy of the amendments; but he either overlooked the printed copy of the amendments or else he inserted a copy and it has since been lost. If the officers of the house performed their duties, and presumably they did, the only paper sent to the senate was the engrossed resolution. If the officers of the senate performed their duties, and presumably they did, the only paper read to the.senate and acted upon by that body was the engrossed resolution. Thus it appears from what the journals themselves contain that the failure of the senate journal to show a complete copy of the amendments adopted in the house is due to a clerical mistake or, if the copy was in truth inserted, it has since been lost: See 25 R. C. L. 901.

"When we view the journals in the light of the facts as they are admitted to be by the parties, the conclusion is inescapable that the senate acted upon the engrossed resolution and upon no other paper. The engrossed resolution is admittedly a correct amalgamation of the original resolution and the house amendments. The enrolled resolution is concededly an exact transcript of the engrossed resolution. It is not denied that the enrolled resolution was submitted to and voted upon by the people. Hence, the House of Eepresentatives, the senate, and the people voted upon and approved the same resolution. Our conclusion is that H. J. R. No. 12 was adopted by the legislative assembly in full compliance with the Constitution, and that therefore Article XI-C is now a part of our Constitution.

10. The remaining questions for decision relate to H. B. 203. It will be recalled that the only entry in the house journal referring to concurrence by the house in the senate amendments reads thus:

“House Bill 203, House concurred in Senate amend on motion of Korell.”

Treating the concurrence of the house as the final passage of H. B. 203, then by force of Article IV, Section 19, of the Constitution the vote was required to be taken by yeas and nays; but the Constitution does not affirmatively state that the names of the members with the yeas and nays shall be entered in the journal, unless, as provided in Article IV, Section 13, two members request that the yeas and nays be entered on the journal: State ex rel. v. Boyer, 84 Or. 513 (165 Pac. 587). However, all persons will no donbt agree that tbe better and more satisfactory-practice is to enter tbe yeas and nays with the names of the members on the journal. Since the Constitution only requires that the vote be taken by yeas and nays and provides that a constitutional majority is essential, and does not mandatorily require the entry of yeas and nays on the journal, and since the journal does affirmatively show that the amendments were concurred in and does not affirmatively show that the vote was not taken by yeas and nays and does not affirmatively show that less than a constitutional majority voted for concurrence, the presumption is that the vote was in fact taken by yeas and nays and that the constitutional majority voted for concurrence: Emmons v. Southern Pacific Co., 97 Or. 263, 274 (191 Pac. 333); State ex rel. v. Boyer, 84 Or. 513, 522 (165 Pac. 587); Portland v. Yick, 44 Or. 439 (75 Pac. 706, 102 Am. St. Rep. 633).

11. The contention that H. B. 203 is void because it was not submitted to the people for their approval at the election held on June 7, 1921, is without merit. Section 26, it is true, authorized the Secretary of State to set aside for an affirmative argument two pages of the official pamphlet and authorized the President of the senate and the speaker of the house to appoint a committee to prepare and file with the Secretary of State an affirmative argument, but it is also true that the legislative assembly has not in fact directed that H. B. 203 be referred to the people. A committee was appointed to prepare an argument in support of Article XI-C, and that committee did prepare an argument in favor of Article XI-C and the argument was printed in the official pamphlet sent to the voters: House and Senate Journals (1921), pp. 290 and 540. A committee was not appointed under Section 26 of H. B. 203 and of course no argument was prepared by any committee from tbe legislative assembly. These circumstances indicate that tbe legislative assembly treated Section 26 as a superfluity.

Tbe senate committee on military affairs, it will be remembered, reported H. B. 203 back to tbe senate witb proposed amendments and a recommendation that tbe bill be passed witb such amendments. Among tbe amendments is one to “insert after Section 25 of tbe engrossed bill tbe following”; and then follows Section 26. Tbe report was adopted.

After the adoption of tbe report of tbe senate committee on military affairs, tbe senate, as a special order, fixed a definite time for the consideration of H. J. B. 12 and H. B. 203. In tbe language of tbe senate journal “tbe Senate went into Committee of the Whole on motion of Joseph for tbe consideration of H. J. B. No. 12 and H. B. No. 203.” Tbe committee of tbe whole arose and reported “H. J. B. No. 12 and H. B. No. 203” back to the senate “witb tbe recommendation that they do pass. ’ ’ Tbe report was adopted. Tbe next act of tbe senate was to call tbe roll and vote on tbe adoption of II. J. B. 12. Immediately after adopting H. J. B. 12, tbe senate voted to suspend tbe rules, and to read H. B. 203 “now” and to place it on final passage. According to tbe senate journal, tbe next act was tbe request of Senator Joseph for unanimous consent to strike out Section 26. Tbe request was granted. H. B. 203 was then read tbe third time and passed by tbe senate. Thus it appears that tbe committee on military affairs suggested tbe insertion of Section 26; that when tbe senate resolved itself into a committee of the whole house it considered H. J. E. 12 and H. B. 203; and that after the committee arose and reported and the report was adopted H. J. E. 12 was adopted. It is fair to assume that after the adoption of H. J. E. 12 it became apparent to Senator Joseph that Section 26 was superfluous, because the submission of H. J. E. 12 to the people was all that was necessary, and for that reason he requested unanimous consent to strike out Section 26 of the bill before the bill was read the third time. Evidently in the rush and hurry of business Section 26 was not struck out and the section went to the house as one of the amendments adopted by the senate. However, regardless of whether or not the senate intended to eliminate Section 26, the section is in fact in the act. If then we take Chapter 201 by its four corners, it is obvious that the statute contains nothing which required its submission to the people. Section 26 was a mere superfluity. When enrolled H. B. 203 was signed by the Governor, it was not necessary to do anything further.

12. The contention of the plaintiff that H. B. 203 is invalid because “not passed subsequent to or pursuant to” Article XI-C cannot be sustained. The principle announced by this court, speaking through Mr. Justice Burnett, in Libby v. Olcott, 66 Or. 124, 132 (134 Pac. 13), and the rule approved and applied in a recent decision of this court, speaking through Mr. Justice McBride, in State v. Rathie, 101 Or. 339 (199 Pac. 169, 177), determine the question adversely to the position taken by the plaintiff. See also State v. Luther, 56 Minn. 156 (57 N. W. 464); Hammond v. Clarke, 136 Ga. 313 (71 S. E. 479, 38 L. R. A. (N. S.) 77); 12 C. J. 721; 25 R. C. L. 908.

13. The contention that H. B. 203 is void “because it is not identified by” Article XI-C is without merit. Section 4 of Article XI-C ratifies, adopts and confirms “any act which has been passed by the legislative assembly which purports to execute and carry into effect the provisions of this section. # * ” The language of Article XI-C assuredly included H. B. 203. It was not necessary specifically to refer to H. B. 203 and point it out separately and apart from all other acts. It must be remembered that Article XI-C was submitted and adopted as a constitutional amendment and not as a mere statute. We know of no rule which made it necessary that Article XI-C specifically point out any individual act or acts intended to be confirmed. The purpose of Article XI-C was to confirm “any act.” Hence, all acts coming within the class designated by the amendment were confirmed. It is probably true, however, that the legislative assembly believed that H. B. 203 was the only bill which would be passed by the legislative assembly. Furthermore, when the electors voted upon Article XI-C they voted presumably knowing that H. B.. 203 would be confirmed if they approved Article XI-C; for the argument which was furnished by a committee, appointed from the legislative assembly to prepare an affirmative argument in support of Article XI-C, and printed in the official pamphlet which, in compliance with law, was sent to every legal voter in the state in part reads as follows:

“House Votes Unanimously.

“The legislative assembly at the last regular session passed the act providing that each veteran of the World War may borrow from the state up to $3,000 in the manner hereinafter explained, or may receive a cash bonus of $15 per month for each month of service up to a total of $500. In the lower house the vote was unanimous. In the senate there were hut two dissenting votes. To provide funds for carrying the act into effect it also was necessary for the 'legislature to adopt and submit to the people for their approval this constitutional amendment. The act while passed by the legislature and already signed by Honorable Ben W. Olcott, Governor of the State of Oregon, can become effective only if this constitutional amendment is adopted by the people. Otherwise, there will be no money available for making the loans or paying the bonuses to the service men.

“The legislative act must constantly be borne in mind in connection with the constitutional amendment. One point in particular is material. While the constitutional amendment authorizes loans to veterans in amounts up to $4,000, the act passed by the legislature fixes the maximum loan at $3,000. Therefore, $3,000 will be the largest amount that any service man can borrow from the state.”

It is our opinion that Article XI-C was adopted in accordance with every requirement of the Constitution, and that Chapter 201, Laws of 1921, was legally enacted and is constitutional. The decree is affirmed. Affirmed.

Burnett, C. J., concurs in the result.

Case Details

Case Name: Boyd v. Olcott

Court Name: Oregon Supreme Court

Date Published: Dec 13, 1921

Citation: 202 P. 431

Court Abbreviation: Or.