| Ark. | Jan 8, 1912
Lead Opinion
Appellant was convicted of the crime of grand larceny under an indictment returned by the grand jury of Desha County at the January, 1910, term of the circuit court of that county. The trial, which resulted in his conviction, took place at a regular term of that court commencing on the fourth Monday in August, 1911; and it is contended that the proceedings were void for the alleged reason that the holding of a regular term of the court at that time was without lawful authority. The General Assembly of. 1911 enacted a statute, which was approved by the Governor on May 26,1911, changing the time of holding terms of circuit courts in the Eleventh Judicial Circuit and fixing the time of holding the courts in Desha County on the third Monday in January and the fourth Monday in August of each year. Prior to the passage of that act, the time for holding said court was fixed by statute on the second Mondays in January and July of each year. The act of May 26, 1911, bears a double enacting clause, or, speaking with more exactness, two enacting clauses, namely: rj
“Be it enacted by the General Assembly of the State of Arkansas:
“Be it enacted by the People of the State of Arkansas:” ^
It is insisted that the use of two enacting clauses renders the statute invalid, for the reason that it leaves a doubt as to the source of the authority for the enactment, whether from the people by the exercise of the constitutional power of initiating legislation, or whether from the General Assembly proceeding on its own initiative. The Constitution of 1874 contains a provision (section 18, article v) that the style of all laws passed by the General Assembly shall be: “Be it enacted by the General Assembly of the State of Arkansas.” The General Assembly of 1909 proposed, and at the general election held in September,1910, the people adopted, an amendment to the Constitution providing for the initiative and referendum in legislation. Said amendment contains a provision that “the style of all bills shall be: “Be it enacted by the people of the State of Arkansas.” Since both forms of enacting clause*^ were employed, it is unnecessary for us to decide which of them should have been used in framing the statute passed by the Legislature on its own initiative. One or the other of them was necessarily inappropriate, but we are not called on now to decide which one should have been used. The precise question which we must decide is, whether the improper use of one form of enacting clause rendered the statute void, the appropriate form having been also used. This court held in Vinsant v. Knox, 27 Ark. 266" date_filed="1871-12-15" court="Ark." case_name="Vinsant v. Knox">27 Ark. 266, that the constitutional requirement as to the style of legislative enactments was intended to be mandatory, and must be substantially complied with. It does not follow, however, from the decision of that question that the use of two enacting clauses, one of which is inappropriate, renders the enactment void. On the contrary, it seems clear to us that if the form prescribed by the Constitution is in fact used the addition of another inappropriate clause should be treated as surplusage, and does not render the act void. It is not sound argument to say that., because of the use of two forms of enacting clause, the authoritative source of the enactment is unexpressed and left in doubt. We know judicially that the bill originated in one of the houses of the General Assembly, and not with the people. We are so informed by the journals of the two houses, of which we take judicial notice. We know also that there had not, and could not have, been an election for the adoption of a law initiated by the people. Those are matters of which all persons take notice. Hence, when the face of the statute in question is examined, in connection with the history and progress of the bill for its enactment, the. source of authority is not in doubt, and since that authority is expressed in the appropriate constitutional form, the statute is not invalidated by the addition of another inappropriate form.
The statute in question concludes with the provision that “This act shall take effect and be in force ninety days from and after its passage.” The word “passage,” as there used, means, we think, approval by the Governor, for it is then that the enactment of the statute becomes complete. Computing from the date of approval which was on May 26, the statute became effective August 24, 1911, which was four days before the fourth Monday in August, when the term of court was commenced according to the provisions of the statute. The Constitution, as amended, provides .that “Referendum petitions shall be filed with the Secretary of .State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum was demanded.” The regular session of the General Assembly of 1911 ended on the 13th day of May, and no reference of the act has been demanded by the people. The time for reference ended on August 11,1911, and the question whether the. constitutional amendment is self-executing, so as to put itself in force from the time of its adoption, and the further question whether or not the act could have gone into effect before the time for demand on the part of the people for a reference, need not be discussed. In any view of it, the statute was in force before the date of the commencement of the August term of the court.
But it. is contended with much earnestness by learned counsel for appellant that the statute in question did not contemplate an August term of the court for that year, and that it was not intended as a provision for such term, it being in contemplation of the lawmakers that a term of the court would be held in July under the preexisting statute before the amendatory statute could go into effect, and that it would not be necessary to hold another term in August of the same year; hence, no provision for it. He bases his contention upon the idea that, owing to the necessary delays in the progress of a bill through the two houses of the General Assembly, the uncertainty as to the time of adjournment and approval by the Governor, and the postponement of the period for the going into effect of the statute, the lawmakers did not intend to disturb the July term of court, but had in mind at the time that the term would be held under the old statute before the new one went into effect. We have no means of probing the legislative mind further than the intention manifested by the language of the statute itself, which plainly declares that the law should become effective ninety days after its approval by the Governor, whenever that might be. We may indulge in conjecture as to what the members of the Legislature thought might result in its effect upon the time of holding the then approaching term of court, but in ascertaining the true legislative intent we must confine ourselves to the language of the act itself. There is nothing in the Constitution which limits the power of the Legislature in enacting a statute and putting it into effect at a time which would permit the holding of a term of court in July, under an old statute, and also provide, under the new, for the holding of another term in August. It is clear that such was the result of this statute in happening to go into effect at the time it did. The only limitation found in the Constitution upon the power of the Legislature with respect to fixing the number of terms of court in each county is that at least one term in each year must be provided for. Parker v. Sanders, 46 Ark. 229" date_filed="1885-11-15" court="Ark." case_name="Parker v. Sanders">46 Ark. 229. The Legislature may provide for as many more terms of court as it deems necessary. In the opinion of the court in the case just cited, Judge Battle quoted with approval, as bearing upon that subject, the following from Cooley on Constitutional Limitations (pp. 157, 200, 203, 208):
“Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the Constitution imposes; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives. * * * When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, we can not declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. ”
We are also urged to construe the section of the statute postponing its operation ninety days after passage tornean ninety days after the end of the period allowed for reference to the people. We are unable to reach the conclusion that that is the correct construction, for it would do violence to the plain language of the statute, which declares that it “shall take effect and be in force ninety days after its passage.” The act was “passed,” within the meaning of the language used, when it was approved, and the ninety days’ postponement ran from that date. The Legislature had the power to lengthen, but not to shorten, the time for putting the statute into operation, and it was the manifest intention of the lawmakers to postpone the operation of the statute that length of time, regardless of any further postponement of its operation which might result from .the length of time given for reference to the people after the adjournment of the session. As we have already shown, the time for reference ended on August 11, 1911, which was before the time fixed by the act itself for going into effect. But the fact that, by reason of a later adjournment, the reference period might have been extended' beyond that time affords no ground for argument that the lawmakers meant to postpone the operation of the statute ninety days after the end of the reference period.
Counsel also mention another question without pressing it to any extent; that is, that the reference period should be held to have commenced running from the date of approva of the act by the Governor so as to give the full period of ninety days after that time for filing petitions for reference. It is sufficient answer to say that the constitutional amendment provides that the petition for reference must be filed “not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill.” This language is too plain to need constrüction, and it can not be misunderstood. . But, even if the argument be sound, it would not aid appellant’s cause, for, as we have already seen, the August term of court, fixed by the statute, was commenced more than ninety days after its approval by the Governor.
We have pretermitted decision of the question whether the provisions of the referendum amendment are self-executing, and also whether the operation of the statute is suspended during the period allowed for demanding a reference, it being unnecessary to decide these questions in this case. Nor is it necessary for us to decide what form of enacting clause must be prefixed to a statute initiated by the Legislature itself. Other cases will come before us in which those questions may arise, and it would be improper for us to attempt to decide them, difficult as they appear to be, until presented in a case where they become vital. We are of the'opinion that the statute was in force at the time that the term of court at which appellant ■ was convicted was held, and that the court was held under lawful authority.
Appellant contends that the evidence was not legally sufficient to warrant his conviction. He is accused of stealing ten hogs, the property of John A. Hudson, who testified that he ' missed from the range on his land two of his sows and twelve pigs, and that he subsequently found the sows and some of the pigs in appellant’s possession. The sows were marked in his mark, and the pigs were unmarked before he missed them. They were on a range on the opposite side of the Arkansas River from where they were subsequently found in appellant’s possession. The pigs were marked when found in appellant’s possession, and he admitted that he marked them. The evidence tended to establish the fact that appellant knew that the pigs belonged to Hudson, and it also tended to show that the pigs did not cross the river of their own accord, but were carried across. Appellant testified that it was customary to take up hogs running along the line of the levee, that he was told by a white man named Bush to take the hogs, and that after he took them into his possession he posted a notice in a public place on the engine room door of the gin house to the effect that he had taken up twelve hogs and was keeping them at his home. He did not comply with the law with reference to posting estrays. His testimony was corroborated by other witnesses. The testimony warranted the jury in finding that the hogs found in appellant’s possession had been recently stolen, and his explanation of his possession presented a question for the jury to determine whether or not he was the guilty person. If the explanation of his possession of the recently stolen property was found to be unsatisfactory, an inference of his guilt was warranted. Gunter v. State, 79 Ark. 432" date_filed="1906-06-25" court="Ark." case_name="Gunter v. State">79 Ark. 432. The good faith of his alleged attempt to notify the owner and his conversion of the property to his own use by marking the pigs, were also questions for the jury to consider in determining his guilt or innocence. Blackshare v. State, 94 Ark. 548" date_filed="1910-04-18" court="Ark." case_name="Blackshare v. State">94 Ark. 548.
Error is assigned in the court’s refusal to allow appellant to interrogate Hudson, on cross examination, as to the state of feeling between him and Cole Bush, the man who appellant claims told him to take up the hogs, and also in the court’s refusal to allow appellant to ask Hudson if he had not instituted the prosecution for the purpose of annoying and giving trouble to Bush. If it be conceded that the testimony sought to be elicited by the questions was competent, still there is not enough in the record to show that any prejudice resulted from the refusal to allow the witness to answer the question, for it is not shown what the answer of the witness would have been. There was no offer to prove any particular fact by the witness, and we have no means of knowing what testimony an answer to the questions would have elicited. Therefore the error of the court, if error it be, was not prejudicial. Meisenheimer v. State, 73 Ark. 407" date_filed="1904-12-24" court="Ark." case_name="Meisenheimer v. State">73 Ark. 407. The record also recites that appellant offered to prove by Bush what Hudson had said to him at the time he took the hogs away, and also offered his testimony regarding the quarrel between Hudson and himself. The record does not show, however, what it was that Hudson said to Bush, nor what they quarreled about, nor the extent of their quarrel. Therefore, there is not enough in the record to show that any prejudice resulted. It was the duty of the appellant, in appealing to this court for correction of errors, to put enough in the record to show that some prejudice to him had resulted from the ruling of tne court. St. Louis, I. M. & S. Ry. Co. v. Aiken, 100 Ark. 437" date_filed="1911-07-10" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Aiken">100 Ark. 437.
Finding no prejudicial error in the proceedings, the judgment is affirmed.
Dissenting Opinion
dissents on ground that the evidence was not sufficient to warrant conviction. He concurs in holding that the term of court was lawful.