202 P. 431 | Or. | 1921
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 jurisdic
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
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
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 legisla
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
“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,*355 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.
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.
“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.
“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 re*361 quired 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.”
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
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
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
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
“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.”
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
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
If House Joint Resolution No. 12 followed the usual course, and presumably it did, it was printed
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
"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.
“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.
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
“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*381 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.