163 P.2d 190 | Wyo. | 1945
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *114
The facts are not in dispute and will be briefly summarized as follows (leaving out facts which are not involved in the contention herein): On January 19, 1945, there was introduced in the House of Representatives a bill known as House Bill No. 37 to amend subsection 1 of section 7 of chapter 72 Session Laws of 1935. The bill, in brief, provided for the distribution of 23 percent of the revenues above mentioned to counties, and 2 percent thereof to cities and towns of over 1500 population. The bill was amended in the House to provide for a distribution of 25 percent of the foregoing revenues to counties, without disturbing the provision in reference to the distribution to cities and towns, and as thus amended the bill duly passed the house. The Senate refused to agree to the amendment made by the House, restored the 23 percent mentioned in the original bill, and as thus amended the bill duly passed the Senate. When the bill got back to the House, the latter refused to concur in the action of the Senate. Thereupon a conference committee was appointed. That committee recommended several amendments among which were — the only one necessary to be mentioned — that only 23 percent of the foregoing revenue should be disbursed to counties (including towns of less population than 1500), and that 2 percent of such revenue should be paid to cities and towns of over 1500 *119 population, as shown by the original bill. Both the Senate and the House agreed to these amendments, and the bill as thus amended was duly passed by both Houses on February 17, 1945, the last day of the Session of the Legislature.
The bill as thus passed was enrolled, known as Enrolled Act. No. 96, but instead of providing that 23 percent of the foregoing revenue should be distributed to counties, provided for 25 percent thereof. The enrolled bill, containing this error, was duly signed by the presiding officers of both Houses, and was thereupon presented to the Governor of State, who, on February 27th or February 28th, 1945, approved the bill and filed it in the office of the Secretary of State, accompanied by the following letter:
"STATE OF WYOMING EXECUTIVE DEPARTMENT CHEYENNE
LESTER C. HUNT ZAN LEWIS GOVERNOR SECRETARY
I am attaching hereto Enrolled Act. No. 96, House of Representatives of the Twenty-eighth Legislature of the State of Wyoming, being Original House Bill No. 37.
This Act as enrolled provides for the apportionment of twenty-five percent of gas license tax revenue among the counties in accordance with the formula set forth in the Act. An examination of the journals of both the Senate and the House discloses that the bill as actually passed provided for an apportionment of twenty-three percent of the gas tax revenue among the counties; so it must be apparent that the Legislature never passed the Enrolled Act, at least insofar as it apportioned twenty-five percent of such revenues. *120
If the only subject covered by the above Act were the allocation of gas license tax revenues to the counties, I would have no hesitancy in holding the entire Act as enrolled void. However, you will observe that provision is also made for allocation of two percent of such revenue to cities and towns. This part of the Act seems to be in the form actually passed, and since it can be separated from the invalid part of the Enrolled Act, it is my opinion that it would be upheld by the courts even though the first part relating to counties be declared invalid.
Therefore, wishing to assist the cities, a few of which are in need of additional revenue, and, at the same time, believing this matter can be taken to and decided promptly by the Supreme Court, I am approving the Act.
Yours very truly
(Signed) Lester C. Hunt Governor."
I. The intervenors contend that we should adopt the rule that the enrolled bill as signed by the officers of the Legislature and the Governor, is conclusive on the courts, and should not be disturbed.
Some of the courts have adopted that rule. Other courts hold that, in order to determine whether an act has been passed in conformity with constitutional requirements, the journal may be consulted. In 1872, the court of the Wyoming Territory held that "if it should appear from the journals that any act did not receive the requisite majority, or that in respect to it the Legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon the evidence and adjudge the statute void." Brown vs. Nash 1 Wyoming 85. Union Pacific R.R. Co. vs. Carr, 1 Wyoming 96 followed that decision. Section 25, article 3 of our constitution provides that "no bill shall become a law except by a vote of a majority of all the *121
members elected to each house, nor unless on its final passage the vote taken by ayes and noes, and the names of those voting be entered on the journal." Considering that provision, this court held in an exhaustive opinion by Chief Justice Potter in the case of State ex rel. vs. Swan 7 Wyoming 166, 51 P. 209, (1897) that the journals may be consulted as to whether or not an act has been constitutionally passed .Many of the authorities were cited, and the opinion stated that the rule laid down in that case was the prevailing rule in this country. The rule was subsequently recognized as the rule of this state in State ex rel. Cahill 12 Wyoming 225, 75 P. 433; State ex rel. Gillespie 12 Wyoming 284,
The intervenors herein have argued that the prevailing rule in this country has changed since the decision in State ex rel. vs. Swan, and they earnestly and vigorously contend that the rule making the enrolled act, when properly signed, conclusive, is the better rule, and that we ought to overrule State ex rel. vs. Swan, supra. It will be readily understood that we would and should hesitate to disturb a rule which has been the law in this jurisdiction for 73 years. Still, in deference to the earnest contention of counsel for intervenors, we have spent considerable time in re-examining the rule in order to determine whether or not the rule making the enrolled act conclusive is now the prevailing rule in this country to the extent of inducing us to overrule our prior decisions. We think that counsel for the intervenors are mistaken that there has been a general tendency in the courts to adopt the rule for which they *122
contend. It is stated in 1 Sutherland, Statutory Construction, page 224, third edition by Horack published in 1943, that "at the present time the tendency seems to be toward the abandonment of the conclusive presumption rule and the adoption of the third rule leaving only a prima facie presumption of validity which may be attacked by any authoritative source of information." In the case of In Re Hague
II. As above shown, the Legislature intended to give to counties 23 percent of the revenue from the tax on gasoline sales, and 2 percent of such revenue to cities and towns over 1500 population, but that some one by mistake, either inadvertently or intentionally, changed the term "twenty-three" to read "twenty-five" in the enrolled act. Has this court the power to correct the error? It is insisted by the State, and by the intervenors that it has. But their claim as to the power of this court in correction of errors in legislation is so broad and sweeping that we have deemed it necessary or at least advisable to take a brief survey of the authorities on that question, so that, in the light of that survey, the ruling of this court in this case may not be misunderstood. We think that the rule is somewhat *124 more limited than claimed by counsel. It would seem that, generally speaking, the courts have no right to correct errors made in an enrolled bill, and that the courts will ordinarily take the latter as they find it, and if not constitutionally enacted, will declare it void. But there are exceptions. It is stated in 50 Am. Jur. page 219-220 as follows:
"Courts will not, as a general rule, undertake a correction of legislative mistakes in statutes. This principle is adhered to notwithstanding the fact that the court may be convinced by extraneous circumstances that the legislature intended to enact something very different from that which it did enact. The question is not what the general assembly intended to enact, but what is the meaning of that which it did enact. There are, however, many cases in which it has been regarded as proper to correct legislative errors. In this respect, there is authority for the rule that clerical mistakes should be disregarded, that manifest or obvious mistakes may be corrected, and that erroneous descriptions may be made to describe the thing or object actually intended by the statute. If a clerical error renders a statute incapable of reasonable construction, the proper word or numeral will be deemed substituted, where it can be supplied by reference to the context or other statutes. This is but making the strict letter of the statute yield to the obvious intent * * *".
In 59 C.J. 588, section 123, it is stated:
"The enrolling clerk or committee has no power or authority to modify a bill passed by the legislature in any respect. In those jurisdictions where the enrolled act is not regarded as conclusive as to the existence and contents of the bill, it is generally held that the enrolled bill as presented to, and approved by, the governor must be the same as that passed by the legislature, at least in substance and in legal effect; and where, through some mistake in the enrollment of the bill, a material change has been made, or an altogether different bill is presented to, and signed by, the governor, it does not become a law. However, absolute correspondence *125 between the bill as enacted and as signed by the governor is not necessary, and mere clerical errors and minor discrepancies, or the hishonesty of an enrolling clerk, will not be permitted to defeat the intent of the legislature."
In Haney vs. State,
"It is very true, as a general rule of construction, that where the language of an act is plain and unambiguous, the courts must give it effect, as it stands, or declare the law unconstitutional. But this rule is subject to much qualification, and does not apply to cases of plain clerical errors, where it is obvious that the legislature did not intend to use the word as written, and it is further apparent what word they did intend. A mistake of this nature may be corrected by the courts, upon as sound principle as a mistake in a deed. It is not judicial legislation, nor judicial interference with the legislative will. It is in support of the legislative will, and wholly distinct from the reprehensible practice of warping legislation, to suit the views of the courts as to correct policy. The only conditions to be observed in the exercise of this power of literal correction are, that the courts should be thoroughly and honestly satisfied of the legislative intent, irrespective of the policy of the act."
From these authorities it appears quite clearly that the courts have the right to correct a clerical error in a legislative act in the proper case. But the serious question before us is as to whether or not we have the proper case before us. In some cases, as for instance Stein vs. Leper,
Nearly all the cases holding that errors and mistakes may be corrected deal with errors and mistakes apparent on the face of the legislative enactment, either standing by itself or in connection with other well known facts. Very few of such cases deal with the question as to whether or not the procedural steps in enacting the law have been followed; that is to say whether or not the act signed by the governor was the act passed by the legislature. In other words, such cases deal in the main with the construction of the legislative enactment, rather than the validity of the steps in its enactment. At times errors may be corrected without referring to any other source. To that class of errors belongs the error mentioned in Bench Canal Co. vs. Sullivan, 39 Wyoming 345,
In the case at bar there is nothing apparent on the face of the enrolled act which would indicate any mistake or error and the foregoing cases cited to us by counsel are therefore not in point. In the case of Athletic Mining and Smelting Company vs. Sharp,
The case at bar then differs materially from the cases heretofore cited. In Katerdahl vs. Daugherty,
Section 8 of article 4 of our constitution provides that "every bill which has passed the legislature shall, before it becomes a law, be presented to the governor. If he approve it, he shall sign it; but if not, he shall return it with his objections" etc. By the same section it is provided that when the legislature is adjourned, as it was in this case, the bill shall become a law, unless he returns it with his objections within fifteen days. If then the governor chooses to act, his action becomes a constituent part of the legislation, and it is clear that unless it can be said that he signed the identical bill which was passed by the legislature, (immaterial and *130
minor errors which may be corrected according to the rules heretofore mentioned excepted) it cannot be said to be a part of the law of this state. The controlling question herein, accordingly appears to be as to whether it can be fairly said that the governor signed the bill as it was passed by the legislature. In the case of State ex rel. vs. Hall,
"The chief insistence for reversal is that the bill approved by the governor was a different bill from the bill passed by the legislature. An enrolled bill, in legislative parlance, is a reproduction or copy of the identical bill passed by both houses of the General Assembly. The enrolling clerk, or committee, has no power or authority to modify a bill passed by the General Assembly in any respect. It follows that the purpose and intention of the Governor in signing an enrolled bill, or in allowing an enrolled bill to become a law without his signature, is to approve the bill passed by both branches of the legislature, or to acquiesce in such bill becoming a law. In approving an enrolled bill, therefore, it may be said that the Governor intends to, and does approve the original or identical bill passed by the General Assembly."
There may be grave doubt of the correctness of this statement in the ordinary case. In State ex rel. vs. *132 Swan, supra, for instance, it could hardly have been said that the governor intended to sign the act as passed by the legislature. Under the peculiar facts in this case, however, the presumption or inference of such an intendment can hardly be said to be unreasonable, particularly in view of the fact that the courts will uphold an act as constitutional if the case presented is one of reasonable doubt.
However that may be, the case of State ex rel. vs. Moore,
The legislation in the case at bar is in the nature of an appropriation bill, in which the rule that the greater includes the less may well be applied. And it may be that the rule of State ex rel. vs. Moore cannot be extended *133 to any other class of cases. We do not know of any sound reason why we should dissent from the Nebraska court in this case. Mistakes do occur, and it might be found unfortunate in the future in connection with appropriation and similar bills if we should now take a position contrary to State ex rel. vs. Moore. And so we approve it. Counsel for plaintiff claim that such conclusion is inconsistent with the conclusion reached in State ex rel. vs. Swan, supra. We do not think so. That case is easily distinguishable from the case at bar. In that case the governor had no knowledge of the error in the enrolled bill. He sent no communication such as he sent in this case. No rule that the greater includes the less was involved.
In follows, accordingly, that the words "twenty-five" in the first line of section 7 (1) of Chapter 72, Session Laws of 1935 as amended by Chapter 157 of the Session Laws of 1945, should be read "twenty-three", and as thus amended, the act should be upheld. The writ of mandamus asked for will be denied. No costs will be taxed in this case.
Writ of mandamus denied.
RINER, J., and KIMBALL, J., concur. *134